The State of Western Australia v Lauchlan - [2005] WASC 266

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- LAUCHLAN & ANOR [2005] WASC 266

CORAM: EM HEENAN J

HEARD: 13-14, 17 OCTOBER & 17 NOVEMBER 2005

DELIVERED : 7 DECEMBER 2005

FILE NO/S: INS 101 of 2004

BETWEEN: THE STATE OF WESTERN AUSTRALIA
State
AND
DARREN BRADLEY LAUCHLAN
First Accused
LYNDA SUSAN HAMMOND
Second Accused

Catchwords:

Criminal law - Evidence - Confessions - Undercover police operation - Fake gangs and induced confessions - Incriminating statement to undercover police officer - Lack of caution - Prior interviews by police - Murder investigation - Voluntariness - Whether undercover operatives "persons in authority" - Unfairness discretion - Public policy discretion - Privilege against self‑incrimination

Legislation:

Criminal Procedure Act 2004 (WA), s 98(2)

Result:

Evidence admissible
Minor editing of one scenario ordered

Category: A

Representation:

Counsel:

State:     Mr B Fiannaca & Ms S Markham
First Accused                :     Ms H E Prince
Second Accused            :     Mr G F Edwards (13-14 & 17 October 2005) & Mr A J Williams (17 November 2005)

Solicitors:

State:     State Director of Public Prosecutions
First Accused                :     Andree Horrigan
Second Accused            :     Michael Tudori

Case(s) referred to in judgment(s):

Allhusen v Labouchere (1898) 3 QBD 654
Bruce v The Queen (1987) 61 ALJR 603
Bunning v Cross (1978) 141 CLR 54
Cleland v The Queen (1982) 151 CLR 1
Collins v The Queen (1980) 31 ALR 257
DPP v Ghiller [2003] VSC 350
Driscoll v The Queen (1977) 137 CLR 517
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477
Foster v The Queen (1993) 67 ALJR 550
Ibrahim v The King [1914] AC 559
In the Matter of an Application by the Chief Commissioner of Police (Vic) [2005] HCA 18; (2005) 214 ALR 422
McDermott v The King (1948) 76 CLR 501
Norton v The Queen (2001) 24 WAR 488
Pfennig v The Queen (1995) 182 CLR 461
R v Attard & Mifsud [1970] 1 NSWR 750
R v Burt [2000] 1 Qd R 28
R v Clarke [2004] VSC 11
R v Dean (No 2) (1896) 13 WN (NSW) 82; 17 LR (NSW) 224
R v Favata [2004] VSC 7
R v Geesing (1985) 38 SASR 226
R v Heaney and Welsh [1998] 4 VR 636
R v Lee (1950) 82 CLR 133
R v Marks [2004] VSC 476; 150 A Crim R 212
R v Nguyen [1999] VSC 420
R v Pfennig (No 1) (1992) 57 SASR 507
R v Suckling [1999] NSWCCA 36
R v Swaffield; Pavic v The Queen (1998) 192 CLR 159
R v Tofilau (2003) 149 A Crim R 446
R v Weeding [1998] TASSC 125
Sell v The Queen (1995) 15 WAR 240
Sinclair v The King (1946) 73 CLR 316
Van der Meer v The Queen (1988) 62 ALJR 656
Weissensteiner v The Queen (1993) 178 CLR 217

Case(s) also cited:

Attorney-General (NSW) v Martin (1909) 9 CLR 713
Deokinanan v R (1969) 1 AC 20
R v Berger (1975) 27 CCC (2d) 357
R v Davidson and Moyle [1996] 2 Qd R 505
R v O'Neill [1996] 2 Qd R 326
R v Todd (1901) 4 CCC 514
R v Unger (1993) 83 CCC (3d) 28

EM HEENAN J: The accused Darren Bradley Lauchlan is charged with the wilful murder of Stephen Rossi at Forrestdale - a Perth suburb, on 19 September 2002. The accused Lynda Susan Hammond is charged with being an accessory after the fact to the murder of Stephen Rossi. Both accused have pleaded not guilty to these charges. Their formal trial has not yet commenced and no jury has been empanelled but I have been taking evidence and hearing submissions in order to determine a question of law or procedure before the commencement of the trial, pursuant to s 98(2) of the Criminal Procedure Act 2004.
This hearing, which has proceeded for over four days, is a voir dire to determine whether certain evidence upon which the prosecution seeks to rely is admissible or, if admissible, should be excluded in the exercise of the court's discretion. The evidence, which is quite lengthy, relates to the details of a police undercover operation which resulted, so the prosecution contends, in admissions of the killing of Stephen Rossi being made by the accused Darren Bradley Lauchlan. It also comprises further evidence of discussions between Lauchlan and his co‑accused, Lynda Susan Hammond, which were intercepted by a listening device containing further admissions confirming the accuracy of the earlier admission and also showing participation by the co‑accused Hammond in actions by Mr Lauchlan to escape detection by the police. In order to appreciate the issues which arise it is necessary to sketch the background of events, at least as those are alleged by the prosecution, involving the death of Stephen Rossi and the subsequent police investigation.

The death of Stephen Rossi

During the night of 19/20 September 2002 the body of Stephen Rossi was located slightly off the roadway in Armadale Road, Forrestdale near Anstey Road. The result of the post‑mortem examination led the forensic pathologist to report that the cause of death was "multiple injuries in a man with combined opiate effect".
The case for the prosecution is that during the days before the death of Rossi, the accused Darren Lauchlan, had arranged to purchase 6 grams of heroin from Rossi and to meet for that purpose at Forrestdale. According to the prosecution a meeting took place between the two men at a deserted roadside location at Forrestdale at night. At the meeting Lauchlan demanded the heroin but refused to pay for it. When Rossi declined to hand over the drug the accused Lauchlan assaulted him by striking him repeatedly in the head with a blunt object. When Rossi tried to flee the accused killed him by running him down with Rossi's own motor vehicle and then going back to run the body over on the roadway. He then set fire to the body by using petrol in an effort to avoid detection. The car used by Lauchlan in the offence was driven into the bush some distance away and then destroyed by another petrol initiated fire set by Lauchlan.
According to the prosecution, Lauchlan disclosed these events to his de facto wife, Lynda Susan Hammond, the mother of his children, and she then assisted him and provided a false alibi to the effect that he was with her for the whole of the evening of 19/20 September 2002.
As a result of lawful telephone intercepts and other inquiries, the police quickly learned that the accused Lauchlan had arranged to meet the deceased, Stephen Rossi, on the night of his death for a heroin deal and suspected his involvement in what they took to be a murder. Lauchlan was questioned by Western Australian police officers about his association with Rossi, the proposed heroin deal and his activities on 19 and 20 September 2002. From the outset he denied any involvement in the death of Rossi. He told police that he had arranged to meet with Rossi that night but had cancelled the meeting because he was unable to raise the money needed to purchase the heroin. He denied meeting with Rossi at Forrestdale or elsewhere on the evening of his death and denied any involvement in the killing.
Various interviews were conducted between Western Australian police officers and the accused Lauchlan during 2002 after the death of Rossi. They were:
(a)an interview between police officers and Lauchlan at the latter's home at 19 Adana Street, Mandurah, on 20 September 2002, leading to a handwritten statement made to the police by Lauchlan;
(b)a video recorded interview with investigating police officers on 21 September 2002 not under caution;
(c)a video recorded interview with investigating police officers on 1 October 2002 conducted under caution;
(d)another video recorded record of interview conducted with the accused Lauchlan by investigating police officers on 11 October 2002 conducted under caution;
(Towards the end of this interview (t/s 50 ‑ 54), Lauchlan indicated that he desired to seek legal advice and did not wish to answer further questions unless and until he had obtained legal advice. The proceedings were interrupted to allow him an opportunity to obtain legal advice. His efforts were at first unsuccessful but he eventually made contact with a solicitor and, upon resuming the interview, declined to answer further questions on the basis of legal advice.)
(e)a further video recorded interview conducted between Lauchlan and investigating police officers at Wooroloo Prison on 13 November 2002;
(Although not charged with any offence arising out of Rossi's death, Lauchlan was, by then, serving a term of imprisonment in November 2002 as a result of unpaid fines arising from a series of Fisheries Act offences in the past. It was during this period of incarceration that he was again visited by detectives investigating the death of Stephen Rossi and, under caution, participated in the lengthy video recorded interview of 13 November 2002.)
(f)on 19 December 2003 Lauchlan participated in a video recorded interview with Western Australian police officers at the St Kilda Police Headquarters in Melbourne following his arrest for the wilful murder of Stephen Rossi. This interview canvassed, in detail, the circumstances of his alleged admission to an undercover police operative of his involvement in Rossi's death also recorded on video. In the course of this interview he requested legal advice and indicated his refusal to speak without the presence of a lawyer but the questioning continued to a limited extent.

The undercover police operation

The police investigation in Western Australia into Stephen Rossi's death involved a number of avenues of inquiry. A number of potential suspects were identified. Before long, however, the police reached the view that Lauchlan was the prime suspect and had, indeed, killed Rossi at the pre‑arranged meeting to conduct the heroin deal. However, they were of the view that there was not then sufficient evidence to establish a convincing case against Lauchlan without eliciting some form of admission from him.
Meanwhile, following his release from Wooroloo Prison after completing the default period of imprisonment for non‑payment of fines, Lauchlan, together with Lynda Hammond and their children, moved from Western Australia to Queenstown on the west coast of Tasmania. There Lauchlan sought employment as a professional fisherman. He had substantial experience in the fishing industry in Western Australia and was qualified as, and held a licence for, a master of a fishing boat.
In about March 2003 the Western Australian police decided to seek the assistance of the Victorian police force to conduct an undercover operation in the hope of eliciting evidence which would lead to Lauchlan admitting his suspected involvement in the murder of Stephen Rossi. At this time the Victorian police force had developed skill and experience in what they termed the "homicide scenario" technique.
The basic features of the technique are that an undercover police operative will make contact with the target (in this case Darren Lauchlan), strike up an acquaintance and build rapport. Once this relationship has been established there follows a series of other meetings with the undercover police operative which take place over a duration of about nine weeks, in this case from 20 October 2003 to 19 December 2003. During this period the target is led to believe that the police undercover operative, and other police undercover operators who are introduced at various stages along the way, belong to an organised criminal gang controlled by a "crime boss" which runs widespread illegal activities ranging from protection rackets, to prostitution operations, illegal drug importation and supply, gun running, jewel robbery and other serious criminal activities.
This is accomplished by one or more of the undercover police operatives acting out prearranged scenarios, which are carefully designed to give the appearance of preparations for, completion of, or assistance in, the collection of moneys from protection rackets and prostitutes, the handling of firearms, including automatic weapons and submachine guns for delivery to outlaw motorcycle gangs, the reconnaissance of suitable landing grounds for an aircraft involved in drug importation, the collection of "diamonds" from a jewel robbery, the preparation of parcels of drugs for distribution into a supply chain, and the collection of moneys from another "gang" member who had supposedly double‑crossed the gang and is being forced to repay money owed. Despite the appearances and the carefully and deliberately induced belief that the actions portrayed in the various scenarios were either themselves criminal activities or part of the preparations for, or sequels to, serious criminal activities, no offences of any kind are actually committed.
All the individuals involved, including the stall owner paying the "protection money", the prostitute paying the "take" to the organisation, the jeweller who was in the process of being "robbed", the motorcycle gang members who were collecting the firearms and the former gang member who was being "pressured" to repay moneys which she had wrongly taken from the gang, were all undercover police operatives carefully carrying out fictional roles specifically designed for them. Throughout this process, as the "target" was being enticed into ever closer co‑operation with the initial operative, he was being encouraged to believe that he may be accepted as a member of the gang and so be led into lucrative criminal activities. Indeed, by expressing his willingness to become involved in the play‑acting activities of assisting in the jewel robbery, the drug importation and distribution and other matters, the "target" was induced to believe that he had already "earned" a substantial slice of the profits and that the "take" due to him by mid December 2003 was about $11,000 or more and would be paid to him.
As these scenarios were enacted and progressed the "target" was repeatedly told that the key to success for the criminal gang was "honesty, loyalty and trust" between its members and that all the gang members were carefully checked and evaluated by the "crime boss" who had access through corrupt police officers and other corrupt officials, to police information. The "crime boss" had the capacity to make any past problems "go away" if they posed any threat to the gang or individual members. However, to be initiated into the gang and accepted as a member, a candidate had to be able to satisfy the "crime boss" that there was nothing in his past which would, or might, attract undue police attention to him and thus imperil any of the operations of the gang. It was for this reason that detailed "checking" was necessary via access to the "corrupt officials" who were on its payroll.
All this was explained repeatedly to Darren Lauchlan by the prime undercover operator who had initially enlisted his involvement in the supposed illegal activities. It was reinforced by statements from the "crime boss", a man named "Gary", at an initial meeting with the target and it all came to a head at the ultimate interview between the "target" Darren Lachlan and the "crime boss" "Gary" at a meeting in the Crown Casino Hotel in Melbourne on 18 December 2003.
This meeting was secretly video recorded by other police operatives and the dialogue was also recorded, not only by the video recording apparatus but by a secret "wire" or interception device worn by the crime boss "Gary", himself an undercover police operative. At this interview Darren Lauchlan was generally praised by "Gary" for his involvements in the gang's activities so far and for his future potential, particularly having regard to his fishing boat experience and the ability to ferry goods from Tasmania to Victoria or vice versa. The general pattern of the conversation was that "Gary" hoped that Lauchlan would agree to become a permanent member of the group but that "checks" which the gang had organised revealed that the police in Western Australia were "hot" for him because of his suspected involvement in the murder of a man named Stephen Rossi in late 2002. Consequently, "Gary" needed to know just what Lauchlan's involvement in that activity was in order to decide whether or not he would be a threat to the gang or whether the problem was something which could be made to "go away" because of the gang's contact with corrupt officials.
After much repetition of the need for "honesty, truth and loyalty" among gang members and assertions that "Gary" did not personally care what Darren Lauchlan might have done in the past, Lauchlan proceeded to give an explanation of how he did know about the murder of Stephen Rossi but said that he was not involved and that another man he knew of had committed the crime, giving "Gary" a quantity of detail about the circumstances. After this rather lengthy explanation "Gary" told Lauchlan that he really did not accept the explanation given because the "source" for the "checks" which he had conducted had always been reliable in the past and according to that information it was Lauchlan himself who was believed to have committed the crime and that he, "Gary", really needed to know the truth in order to decide whether, in the interests of the gang generally, Lauchlan should or should not become a member.
"Gary" stressed to Darren Lauchlan that if it was decided that Lauchlan could not become a gang member or if he did not participate in the discussion any further he was completely free to go, that no harm would come to him and that he, "Gary", and the other gang members would simply disappear and Lauchlan would never hear of, or from, them again.
At this point in the recorded interview Darren Lauchlan agreed that he had not given the complete story of the killing of Stephen Rossi before. He then proceeded to give a detailed account of how he, himself, had killed Rossi, how he had met by prearrangement at the scene in Forrestdale, how he had sought to get drugs from Rossi without paying, and that when Rossi refused they both got into Rossi's car whereupon Lauchlan struck Rossi repeatedly in the head with a clenched fist bearing a heavy weapon which caused Rossi injury and led him to stop the car and run away. Lauchlan said that he then took over the control of the car and ran Rossi down, striking him with the front of the vehicle and forcing him into the air and over the canopy to fall injured on the roadway. According to his version of events, Lauchlan then turned the car around and deliberately drove it over the prone body of Rossi. He stopped, went back and saw that the man was apparently dead. He then spread petrol on him from the car and set him alight. He then drove Rossi's car off down a track into the bush, took the weapon which had been used in the incident, wiped the vehicle down, sprinkled it with more petrol and set it ablaze, returning on foot to his own vehicle hidden nearby and then dumping the weapon in a council rubbish bin which, in the ordinary course of events, would be taken to the tip the following day. He said that he then returned home.
Once this version of events had been given by Darren Lauchlan to "Gary", the latter explained that he would need to consider the position and look into it further and he would let Lauchlan know soon whether or not it presented a problem and whether he could become a member of the group. They left on good terms with Lauchlan being ushered out of the hotel room by other undercover police operatives who pretended to be members of the gang who had brought him to the appointment with "Gary".
Darren Lauchlan was returned by one of these other operatives to an apartment at St Kilda where the "gang members" had installed him and Lynda Hammond during the course of the visit which they had arranged for them to make from Tasmania to Melbourne while undertaking the later sequence of scenarios enacted by the undercover police team. That apartment had been fitted with listening devices, for which warrants had been properly issued. Those listening devices recorded conversations that afternoon and evening between Lauchlan and Hammond during which Lauchlan gave a description of the interview with "Gary", describing how he had admitted to the killing of Stephen Rossi and the effect which it had upon him. These exchanges amount to further admissions by Lauchlan of his involvement in the murder of Rossi. They also implicate Hammond as a knowing accomplice in providing assistance to Lauchlan in the form of a false alibi and in other ways following the offence.

At the eventual trial of Darren Lauchlan and Lynda Hammond on the present indictment, the prosecution desires to adduce the evidence of the undercover police operation involving the various scenarios enacted from 18 October 2003 to 18 December 2003 as laying the basis upon which Lauchlan eventually was led to participate in the meeting with "Gary" at the Crown Casino Hotel on 18 December 2003, together with the production of the video recording and audio recording of that interview involving his admission to "Gary" that he killed Stephen Rossi and how he did it. The prosecution also seeks to adduce the intercepted material in the conversations between Lauchlan and Hammond in the flat at St Kilda on 18 and 19 December 2003 involving his description to her of his discussions that day with "Gary" and how he eventually told "Gary" that he had killed Rossi and of her reaction to that news.
On the following day, 19 December 2003, the original undercover operative "John" met Darren Lauchlan at the St Kilda flat by prior arrangement and they drove off together - ostensibly for some other activity associated with the gang. "John" then parked the car with Darren Lauchlan in it at a suitable location and left him alone in the vehicle. Other police quickly descended on the scene and arrested Lauchlan, leading to him being charged with the murder of Stephen Rossi. Lynda Hammond was arrested and charged shortly afterwards.

Objections to admissibility

At this voir dire hearing a series of objections to the admissibility of all or any part of the evidence of the undercover police operation and, particularly to the video recording and audio recording of the meeting between Darren Lauchlan and the "crime boss" "Gary" at the Crown Casino Hotel in Melbourne on 18 December 2003 were raised. The submissions were that the statement was not voluntary; that the alleged confession had been deliberately induced in response to clear promises of a financial advantage to Lauchlan if he participated with and joined the criminal gang. It was also submitted that the statement was induced by an unstated, but ever present, implicit threat of violence to him if he did not co‑operate in assisting the gang members and in disclosing information to "Gary", notwithstanding "Gary's" assurances that he would not be harmed.
It was submitted on behalf of the accused Darren Lauchlan that these assurances of safety and lack of concern by the gang should be taken in the context of statements made by an all‑powerful "crime boss", successfully running a highly organised and widespread criminal operation involving standover tactics, firearms and ready to resort to effective sanctions against members who betrayed or threatened the safety of the gang.
Further objections to the admissibility of the material stressed that no disclosure had ever been made by "Gary" or by any of the other undercover operatives that they were police officers acting in the course of their duty and that, needless to say, no cautions were administered to Darren Lauchlan before he made his incriminating statement. This amounted, so it was argued, to a departure from the conventional techniques for police to interview suspects to such a degree that the resulting answers or explanations were not admissible.
Further, and in the same vein, it was submitted that to conduct a technique of investigation of which the eventual object was deliberately to achieve a confession involving an admission of the crime of the murder of Stephen Rossi, in order to use this in evidence to charge Darren Lauchlan with his murder, amounted to a breach of the obligation of investigating police officers and a denial of Lauchlan's "right to silence". Lauchlan had previously exercised this right to the knowledge of the investigating detectives in Western Australia in the course of the videotaped record of interview which they conducted with him on 11 October 2002 - already mentioned. These submissions culminated with a further submission that, if contrary to the primary contentions that some or all of this material was inadmissible, it should be excluded in the exercise of a discretion because of impropriety, unfairness or because the method of police interrogation was contrary to the public interest especially because it denied the accused an effective right to silence.
All these objections were made by counsel solely on behalf of Darren Lauchlan. They resulted from an intimation of objections to the admissibility of this material made by counsel for Lauchlan at an earlier status hearing. Orders and directions had been made and given under s 98 of the Criminal Procedure Act 2004 for written grounds of the objections to be filed; for written submissions to be made and filed on behalf of the prosecution and in response by the accused in preparation for detailed argument at the voir dire which has been conducted before me.
No objections had been made to the admissibility of any of this material on behalf of the accused Lynda Hammond although, on the charges as laid, from her perspective, only the intercepted conversations at the St Kilda flat on 18 and 19 December 2003 could be admissible against her. At the commencement of this hearing I enquired of counsel for Ms Hammond whether or not she formally objected to this material and, if so, whether she intended to make written submissions in support of her position. Her position was never finally clarified, except to the extent that counsel indicated that Ms Hammond did not wish to make any objections to the admissibility of any of the material at the trial at this stage of the proceedings but, apparently, desired to keep open the prospect of seeking to do so later in certain eventualities. I pointed out the practical difficulties and inconvenience associated with this course in some detail to counsel for Ms Hammond and offered an opportunity to adjourn the proceedings for counsel to seek further instructions but I was informed that, at least at this point, she had no desire to raise any such objections. I warned counsel of the difficulties which Ms Hammond might face if she passed over such an opportunity on this occasion and this hearing then proceeded solely on the basis of objections being made on behalf of Mr Lauchlan. As a consequence, I ruled that only counsel for Mr Lauchlan had any right to cross‑examine the witnesses called for the prosecution at the hearing of the voir dire and/or, to make submissions on the admissibility or otherwise of this evidence against him at the trial. This was the basis upon which the voir dire hearing was conducted.

Operation Raven - In Detail - The scenarios

This undercover operation was conducted entirely by officers of the Victorian Police Force acting at the request of the Western Australian Police Force. Western Australian police officers were involved in providing information and liaising with their Victorian counterparts and, in particular, in giving briefings of the known facts obtained from the Western Australian police investigation of Rossi's murder shortly before the meeting with the gang boss "Gary" at the Crown Casino Hotel in Melbourne on 18 December 2003. They were also involved in the covert recording and videotaping of the meeting between Darren Lauchlan and the crime boss on that day but they did not participate in any of the undercover operations themselves.
The undercover operation was conducted first in Tasmania where the initial contact with Darren Lauchlan was established and developed but it then moved to Victoria where it progressed and ultimately concluded. The undercover police operatives were all members of the Victorian Police Force and acting in the course of their duties while pursuing the investigation in Victoria. When in Tasmania, however, they were sworn in as special constables of the Tasmanian Police Force, although there is no suggestion that they needed or ever exercised police powers while conducting the operation in Tasmania.
Telephone intercepts were used in the course of the investigation both in Tasmania and in Victoria, but warrants under the Telecommunications (Interception) Act 1979 (Cth) were sought in that regard and there is no suggestion that telephonic interceptions were conducted illegally. In the course of investigations in Victoria various listening devices were installed at several locations, including the St Kilda flat at which Lauchlan and Hammond had been located and, of course, at the hotel room at the Crown Casino in Melbourne. The undercover operatives also frequently wore, or carried, recording devices which recorded conversations which they had with Lauchlan. These required statutory authority which was obtained during the course of the operations in Victoria. However, it was not possible for the undercover operatives to obtain authority to wear such covert recording devices while conducting operations in Tasmania and, for that reason, none was used in that State.
All of the various scenarios enacted by the undercover operatives were planned and outlined in advance and the operatives were all under the supervision of a senior Victorian police officer, the supervisor, Detective Sergeant Waghorn of the Victorian Police who had a long history of experience in undercover police operations. In conjunction with the other operatives, he would plan out in advance the details of each scenario, discuss that with the operatives, give any necessary instructions, and then meet with each operative immediately after the completion of each scenario to conduct a debriefing. The debriefing would involve a full report to Detective Sergeant Waghorn by each operative and notes were taken and kept. Where the operative had been using any recording device, that would be handed to Detective Sergeant Waghorn and it would quickly be transmitted to police headquarters and its contents placed onto a central computer storage which, together with the original recording device and transcripts of the statements which were then prepared, were all kept and preserved.
As originally designed, the undercover operation was to consist of 18 separate scenarios but, in fact, only 16 were conducted. The first was cancelled for operational reasons and, due to a simple error in the numerical sequence of the scenarios, there was no scenario No 9. The details of the 16 scenarios actually conducted are set out in Exhibit 1 (1 ‑ 8, 10 ‑ 18) and it is only necessary to summarise these briefly.
The first scenario was conducted at Queenstown in Tasmania on 20 October 2003. An undercover police officer known as "John" made contact with Darren Lauchlan at a hotel in Queenstown and, after striking up an initial acquaintance, explained that he was looking for his ex wife "Sue" whom he believed to be living and working in the Queenstown area. He asked for the assistance of Lauchlan in telling him of hotels and clubs in the area where he might make enquiries about her and asked if Lauchlan would accompany him on the search. The meeting was successful in establishing a rapport between "John" and Lauchlan and together they travelled to Zeehan to search for "Sue". "John" gave a total of $100 in cash to Lachlan and Hammond to cover certain expenses and for their assistance.
The next scenario took place on 9 November 2003 at Queenstown and it involved "John" enlisting the assistance of Darren Lauchlan to search for "Sue" and, upon finding her, to keep watch while "John" demanded and received money from "Sue", said to have been owing to the crime boss "Gary" because "Sue", a prostitute, had stolen $20,000 from the gang. When confronted with the demand for $20,000 "Sue" became agitated and said she only had $5000 and would get the rest later. Lauchlan was given the $5000 cash and asked to count it, while "John" pretended to ring the crime boss and as a result said that the two would return the following day to collect the balance of the money and, in the meantime, they took "Sue's" car keys. After completing the operation and discussing it in a hotel afterwards in a conversation which referred to "Sue" as having managed one of the crew's brothels, "John" gave Lauchlan $200 cash for his assistance. In the process "John" emphasised the need for trust, honesty and loyalty between members of the crew.
The next operation involved the two men returning to Queenstown on 10 September to meet "Sue" and collect $5000 in cash which, again, was counted by Darren Lauchlan. Because "Sue" was not able to pay the whole of the balance owing, "John" pretended to ring his boss and to have received instructions that he was to meet another gang member "Chris" who would collect "Sue's" car and take it away to sell it. The two men then drove to the Strahan airport to collect "Chris" (another undercover operative). This trio then returned to Queenstown to take "Sue's" car away in circumstances where "Sue" got very upset and begged for more time but to no avail. "Chris" told Lauchlan that he had heard good things about him and enquired if he would be interested in doing some work in Melbourne in the future. At the end of the scenario "John" paid Lauchlan $200 in cash for his assistance. Lauchlan expressed his willingness to help in future activities and his readiness to go to Melbourne, all in circumstances where the undercover operatives stressed the need for trust, honesty and loyalty.
Arrangements were then made for Darren Lauchlan to be flown from Hobart to Melbourne, collected at Tullamarine Airport by "John" and taken to a hotel room in the city. Two other undercover police operatives attended the room with a quantity of firearms, including pistols and an Uzi machine gun. "John" was instructed to take the weapons to Ballarat and to deliver them to two members of a outlaw motorcycle group and, with a fourth undercover operative, to negotiate a price for the firearms. In addition, "John" and Lauchlan paid a visit to Pyke's Creek Reservoir to reconnoitre a site for its suitability for the collection of a load of stolen cigarettes. In the process, "John" described to Lauchlan the details of the group, its professionalism and how they care for their own. He then enquired if Lauchlan would be interested in becoming a part of the group. At the end of the scenario Lauchlan was paid another $200 in cash for his assistance.
The next scenario was enacted on 18 November 2003 and involved "John" collecting Darren Lauchlan from the hotel room in central Melbourne, meeting another undercover operative "Bruce" at the Footscray Markets to collect $2000 cash in protection money. Lauchlan was asked to keep watch and count the money, which he did. The two then travelled to Collingwood where they met yet another undercover operative who handed over $24,000 in cash, said to be from the sale of the weapons. "John" and Lauchlan then meet up with other operatives and handed over the $26,000 in cash which had been collected. Lauchlan was paid another $400 in cash for his assistance.
The seventh scenario took place on 25 November 2003 and involved "John" meeting Darren Lauchlan and driving out to Pyke's Reservoir near Bacchus Marsh, where two other undercover operatives were met. They were driving a truck purportedly carrying stolen cigarettes. "John" and Lauchlan assisted in unloading a portion of the cigarettes and were then driven to Fishermens Bend to meet the undercover operative "Chris". The cigarettes were unloaded and Lauchlan was asked if he was willing to assist in other operations. Lauchlan requested and was paid $50 cash because he claimed that money had been stolen from his room and he was short.
The next scenario occurred on 26 November 2003, again in Melbourne, with Darren Lauchlan being taken to a nearby airfield to check it out. "John" and Lauchlan then went to a nearby hotel to meet another undercover operative who handed over passport photographs. They then met still another undercover operative and handed over the passport photographs and $2000 cash. They also met with another undercover operative near the Carlton football ground when this operative handed over $38,000 in cash which Lauchlan was asked to count. "John" then took Lauchlan to a hotel in Melbourne and pointed out the "crime boss" "Gary" with two of the other undercover operatives, whom Lauchlan had already met, and a third undercover operative who was described to Lauchlan as a corrupt policeman. Again, Lauchlan was paid $400 in cash for his assistance.
The next scenario was on 2 December 2003 when "John" collected Darren Lauchlan from the hotel in Melbourne, collected another $2000 protection money from the undercover operative at the Footscray Markets, and the two then drove to a nearby airfield to watch the arrival of a light aircraft. The pilot, still another undercover operative, met them both and handed over a sample of three hash blocks and discussed the arrival of 180 kilograms of hash from Papua New Guinea. A discussion followed as to the imminent importation of 180 kilograms of illegal drugs and Lauchlan was told that if he would assist in the importation his share would be $100,000. $200 in cash was given to Lauchlan for his assistance. The "hash" involved consisted of three one kilogram blocks of purported hashish (not the genuine substance). Lauchlan was then taken to Tullamarine Airport and booked on a return flight to Tasmania that evening.
Then, on 4 December 2003, "John" again collected Darren Lauchlan at Tullamarine Airport, took him to the hotel in central Melbourne and then both went to a brothel in North Melbourne where, outside, they met an undercover operative who was due to hand over $5000 cash in "protection" money. This undercover operative was pretending to be the madam of the brothel. Only $3000 was handed over and there was a discussion about the missing $2000. The madam asked for time and said she would have the money tomorrow. After completing this task, "John" took Lauchlan to a nearby hotel and discussed the checking which the gang were conducting into Lauchlan's background and expressed some surprise that the checks were taking so long.
The next day, 5 December 2003, "John" collected Darren Lauchlan from the hotel in central Melbourne, went to the international departure area of Tullamarine Airport and met another undercover operative who was given $15,000 in cash, a passport and an airline ticket to London. The two men then met with another undercover operative who had a number of pistols in his possession. He then pretended to receive instructions to meet a corrupt policeman. On meeting this corrupt policeman (another undercover operative), an envelope was handed over for delivery to "Gary". The two men took this to "Chris", who then gave "John" the pistols and told him and Lauchlan to take them to Ballarat to give to a member of the outlaw motorcycle group. This was done and the pistols were handed over to that other undercover operative in return for $5000 in cash in part payment. "John" and Lauchlan returned to Melbourne, again went to the brothel in North Melbourne and collected from the madam the remaining $2000 for the balance of the "protection" money. In "John's" presence Lauchlan counted out the cash and was paid $300 for his assistance. Throughout the day "John" repeatedly told Lauchlan of the need for trust, honesty and loyalty among members of the group and how the gang boss "Gary" organised everything and took care of his crew. Lauchlan then flew back to Tasmania.
On 9 December 2003 "John" again collected Darren Lauchlan from Tullamarine Airport and checked him into the same hotel in central Melbourne. The two men met with a third undercover operative who pretended to be a corrupt policeman who gave them an address of still another undercover operative. "John" collected yet another undercover operative and went to that address while Lauchlan kept watch. "John" and the new undercover operative pretended to carry out a jewel robbery by stealing a quantity of diamonds. Lauchlan was then asked into the room and to find the owner of the diamonds (an undercover operative) bound up in a corner of the room, pretending to be very scared and begging not to be hurt. The room appeared to have been thoroughly searched and Lauchlan was shown a collection of (false) diamonds. "John" pretended to ring "Gary" to tell him that they had got the diamonds and, in the process, pretended to receive instructions to meet another undercover operative to pay $30,000 cash as a down payment for the importation of 20 kilograms of hash. Meetings with another operative then took place to discuss the importation and the details. Afterwards "John" contacted another undercover operative, made arrangements to meet at a Carlton restaurant and handed over the "diamonds" and the $30,000. Arrangements were then made for Lauchlan to be flown back to Tasmania, and in the process "John" said that the crew needed Lauchlan for his skills but that he could not understand why "Gary" was letting him in on a job like this robbery without being part of the crew. Lauchlan was told that his share of the robbery would only be $10,000 because he was not part of the crew.

On 10 December 2003 the undercover operative "John" met Darren Lauchlan at the inner Melbourne hotel and they both went to Tullamarine Airport and flew to Launceston. "John" then hired a car that morning and Lauchlan booked a bus trip to Hobart, due to depart in the late afternoon. Lauchlan asked to borrow $50, which was lent to him by "John", and the two carried out an inspection of the waterways and an airstrip near Georgetown in a way which gave the accused the impression that the gang required his skills for piloting a boat from Tasmania to Victoria. "John" discussed with Lauchlan arrangements for Lynda Hammond to come over to Melbourne and for the pair to be put up in one of "Gary's" flats. The two men spoke about the previous night's scenario (the feigned jewel robbery) and how important it was to have the right people in the right places - referring to the corrupt policeman. "John" then discussed the proposed importation and said that they would be busy next week organising and planning the project. In response, Lauchlan said that he was available and wanted to become involved. The conversation turned, again, to the need for trust, honesty and loyalty and "John" said that although he had vouched for Lauchlan, Lauchlan was free to withdraw at any time. "John" again pretended to be speaking to "Gary" by telephone and then told Lauchlan that "Gary" was pleased with his work and that his share of the money from the diamond robbery of about $10,000 should be available before Christmas. Next day "John" rang Lauchlan to advise that he, Hammond and their two children would travel to Melbourne the following day, as discussed, so that Lauchlan could participate in the next phase of operations.
On Tuesday 16 November 2003 "John" collected Darren Lauchlan, Lynda Hammond and their two children at Tullamarine Airport in Melbourne and drove them to St Kilda and installed them in a flat, buying some groceries and other supplies for them en route and paying them $200 cash in advance for Lauchlan's assistance. After they had settled in, "John" went back to pick up Lauchlan and took him to a bar at a hotel in Prahran where they met another undercover operative. Those three then discussed the visit to Georgetown which had taken place and their conversation was surreptitiously recorded. The undercover operative at the hotel discussed the plan for the forthcoming drug importation and confirmed that it was on track and that the product should be in Victoria shortly after Christmas. He said that two other members of the gang were then in Papua New Guinea. There was reference to the recent diamond "robbery" and Lauchlan was told that he should have his money before Christmas and that his share would be somewhere between $10,000 and $13,000. The conversation involved references to the need for trust, honesty and loyalty among the crew and Lauchlan was given the impression that the gang desired his skills but that he was free to withdraw at any time if he wished.
The next morning, 17 December 2003, "John" collected Darren Lauchlan from the St Kilda flat and then the pair visited a series of locations in the inner city with "John" explaining that preparations were being made for the drug importation. Lauchlan's role in the proposed importation was repeated and he was told of the importance and responsibility which he would bear. "John" again asked him whether he was willing to become involved and told him that he was free to leave if he had any reservations.
Then, in the ultimate scenario on Thursday 18 December 2003, "John" picked up Darren Lauchlan at the St Kilda flat and took him off, ostensibly, to make preparations for the big job. In the course of these actions, a telephone call was received from the crime boss "Gary" who expressed a wish to see Lauchlan immediately to discuss the results of checks made into his background. "John" then drove Lauchlan to the foyer of the Crown Casino Hotel, where the two were met by another man (another undercover operative).
Those two took Darren Lauchlan up to a room on the 21st level where "Gary" the crime boss was apparently staying. While "Gary" was on the phone he gestured to the two other men to search Lauchlan, who was then subjected to a pat down search for weapons before being left alone with "Gary" in the room which was under covert video surveillance and fitted with listening devices. "Gary" then spoke encouragingly to Lauchlan about his performance in the various jobs which had been undertaken so far and of his desire to have him join the group but stressed that he was under no obligation to do so and could back out if he wished. No threats of any kind were made and Lauchlan was repeatedly told that there would be no risk to "Gary" or to any members of the gang if Lauchlan were to withdraw because they would then simply disappear and Lauchlan would never hear of them again.
"Gary" went on to emphasise the need for honesty, trust and loyalty among gang members and explained that it had been necessary to have background checks conducted on Darren Lauchlan through his contacts within the police forces in order to evaluate whether or not he might represent a threat to the gang or attract unwelcome police attention. "Gary" explained that the checks which had been done in Western Australia revealed that the police in Western Australia were very hot on him for a murder and were pursuing the investigation. "Gary" stressed that Lauchlan did not have to talk to him about it and was free to leave but that, if he wished to join the gang, "Gary" would need to have a full truthful account of any involvement so that, if possible, he could "fix things" and make any trouble go away.
Darren Lauchlan then proceeded to outline his knowledge of the Rossi murder and said that he himself had not killed Rossi but that he did know who might have done it. He described the interrogations which he had been subjected to by the police but maintained his denial of any direct involvement. Having heard this explanation, "Gary" said to Lauchlan that he could understand why Lauchlan might not want to talk frankly about the subject and that as far as he, "Gary", was concerned he did not care what Lauchlan had done in the past but that he did need to know the truth in order to decide whether or not he should be accepted as a member of the crew. He told Lauchlan that the version of events which had just been given did not square with the information he had received from his sources which had always been reliable in the past and which he had to accept. He again asked Lauchlan to give a full and frank description of his involvement, saying that if he decided that he did not want to do so that would be the end of the matter. He would not then be able to join the gang but he would be free to leave without any adverse consequences.
After further discussion along those lines Darren Lauchlan then gave a very detailed account of his direct involvement in the death of Stephen Rossi, how and where the meeting at Forrestdale had taken place, how he attacked Rossi while sitting beside him in the car, using a heavy weighted weapon in his fist, and, upon Rossi being injured and fleeing from the car, how he then ran him down, turned the car around and ran the body over before attempting to set it alight with petrol, then leaving the scene and torching Rossi's vehicle which he had been driving. All this was video recorded and tape recorded and directly implicated Lauchlan in the murder of Rossi.
At the end of the discussion "Gary" said that he would need to consider the information which he had been given, that Darren Lauchlan would be taken by "John" back to the flat at St Kilda and would be notified of the result of his consideration as soon as possible as it was necessary for him to give some thought to what he had been told. "John" drove Lauchlan back to the flat in St Kilda and made arrangements to collect him the next day.
Finally, on 19 December 2003, "John" collected Darren Lauchlan from the St Kilda flat in the morning and drove him to an open area near the St Kilda marina, apparently in preparation for some other activities. "John" left Lauchlan alone in the car and quickly afterwards other police officers attended the scene and arrested Lauchlan. He was taken to the St Kilda Road police headquarters. There he was interviewed under caution and in a formal video recorded interview was told that the undercover operation was a police investigation and that, as a result of what he had said to "Gary" at the Crown Towers hotel room, he was being charged with the murder of Stephen Rossi. Lauchlan asked for legal advice and initially declined to answer questions without speaking to a lawyer but then participated, without objection, in a further course of questioning. During this he asserted that the story which he had told "Gary" at the Crown Hotel was false and had been made up by him in order to gain acceptance by the gang and he denied any involvement in the killing of Stephen Rossi.
While the clear purpose of Operation Raven was to convince Darren Lauchlan that "John", "Gary" and the other undercover operatives were all members of an organised crime gang carrying out major criminal activities, and while every effort was made to reinforce this belief by handling large amounts of cash, firearms, what appeared to be drugs in the form of hash and stolen diamonds, as well as by simulating collection of moneys from protection rackets, brothel running and threats to "Sue", I am satisfied that no offences were committed by anything which was done. Similarly, I am satisfied that no express threat was ever made to Darren Lauchlan about the consequences of him not co‑operating or assisting the gang or of what might befall him if he decided to withdraw. Indeed, every effort was made to assure him that he was free to withdraw without adverse consequences, especially during the final critical interview with "Gary" at the Crown Towers Hotel.
The belief which the undercover operators sought to inculcate in Darren Lauchlan was a sense of allegiance, trust and reliability among members of the crew and hence the frequent repetition of the theme of trust, loyalty and honesty between members. It is nevertheless a possibility that simply by implication from the activities in which the undercover police operatives pretended to be engaged, namely, protection rackets, stand‑over recovery of money from "Sue", a jewel robbery, the distribution of weapons including sub‑machine guns, and the magnitude of the criminality involved in a major drug importation, that Lauchlan may have inferred that the members of the gang would not hesitate to be ruthless if occasion demanded, if they were so disposed or if they felt threatened and that the ruthlessness might include violence. However much the police undercover operatives attempted to dispel this possibility, it is difficult to escape the conclusion that the entire setting and the magnitude of the criminality involved meant that some kind of implicit background danger was inevitable and that, indeed, protestations of freedom and ability to withdraw might themselves give grounds for suspicion. This notwithstanding, the evidence presented about the acting out of the various scenarios, in the detail in which it was given, including, in particular, the videotape of the final interview at Crown Towers Hotel on 18 December 2003, does not suggest that Lauchlan at any time felt threatened or harboured any fears for himself, Lynda Hammond or their children. He came voluntarily from Tasmania to Melbourne on several occasions and returned alone. No force or threats were made to induce him, Lynda Hammond and the children to come to Melbourne and stay at the flat at St Kilda. He had never expressed any fears or dissatisfaction. His entire demeanour during the critical interview of 18 December 2003 was that of a person who was relaxed and speaking freely.
I am satisfied that Darren Lauchlan was acting voluntarily throughout the whole course of these scenarios and, in particular, during the course of the critical discussion with "Gary" on 18 December 2003. No blackmail was used or threatened in any of the dealings between "John" or other members of the gang and Lauchlan.

Issues of law

A convenient starting point for the identification and consideration of the issues arising from this application is the decision of the High Court in R v Swaffield; Pavic v The Queen (1998) 192 CLR 159. The case of Swaffield involved a charge of arson. The suspect Swaffield had declined to answer questions in a formal police interview but, later, while in custody had a discussion with a cell mate who was an undercover police officer investigating illicit drug trafficking. In this conversation Swaffield made a series of admissions implicating himself in the charge of arson. Against his objections, these admissions were introduced into evidence by the prosecution at his trial and he was convicted. In the Court of Appeal of the Supreme Court of Queensland his appeal was allowed, his conviction quashed and a verdict of acquittal entered. The Crown appealed by special leave but failed in the appeal because the High Court unanimously decided that the Court of Appeal was correct to exclude that evidence. In Pavic (supra) the appellant was suspected of murder but refused to attend any police interview during the course of the investigation. After that refusal the police arranged for a friend of the accused to wear a covert listening device and to meet Pavic and discuss the incident. The meeting took place and Pavic's conversation was secretly recorded. It included a series of admissions of involvement in the murder. At his trial in Victoria this evidence was admitted, over objection, and Pavic was convicted. His appeal to the Court of Appeal of the Supreme Court of Victoria was dismissed and he also appealed by special leave to the High Court. His appeal was unsuccessful as a majority of the court (Brennan CJ, Toohey, Gaudron and Gummow JJ, with Kirby J dissenting) concluded that the evidence was rightly admitted at trial.
The questions arising in such circumstances were succinctly identified by Brennan CJ in R v Swaffield & Pavic v The Queen (supra) at [1]:
"Should a confessional statement voluntarily made to a witness who, unbeknown to the confessionalist, is a police officer or is acting on behalf of the police, be admitted into evidence on the trial of the confessionalist for the offence to which the statement relates? And does it matter that the confessionalist has previously refused to answer questions or make a confessional statement when interviewed by the police?"
The judgments emphasised that the admissibility of an alleged confession depended upon the prosecution establishing that it had been made voluntarily and then analysed the elements of voluntariness. The decision also confirmed that an admission, albeit made voluntarily, could nevertheless be excluded in the exercise of judicial discretion if it had been obtained unfairly, or in circumstances contrary to public policy or if any probative value was minor in comparison with a greater potential prejudicial effect. Their Honours considered all of these factors with regard to covert interception or recording of confessional statements made by or on behalf of investigating police and having particular regard to whether or not such covert recordings or interceptions encroached upon the accused's "right to silence".
Three sets of reasons for decision were given in the conjoint appeals, the first by Brennan CJ, joint reasons by Toohey, Gaudron and Gummow JJ and another separate set of reasons by Kirby J. All the Justices agreed that the recording of Swaffield speaking to a police officer in a cell, after he had declined to speak formally to police officers, was evidence which should have been excluded at his trial. A majority (Kirby J dissenting) considered that no error had been established in the exercise by the trial Judge of his decision to admit the secretly recorded admission by Pavic to his friend but Kirby J would have excluded that evidence.
The established rule requiring proof that a confession was voluntary was accepted and applied: Sinclair v The King (1946) 73 CLR 316 per Dixon J at 334 ‑ 335; Ibrahim v The King [1914] AC 559 at 610 ‑ 611 per Lord Sumner; McDermott v The King (1948) 76 CLR 501 per Dixon J at 511 ‑ 512, as adopted in R v Lee (1950) 82 CLR 133 at 144 and by the later decisions in Cleland v The Queen (1982) 151 CLR 1 at 27 ‑ 29 and Collins v The Queen (1980) 31 ALR 257 at 307. In addressing the question of whether or not doubt about the reliability of an involuntary confession was a factor which underpinned the exclusionary rule, Brennan CJ in R v Swaffield & Pavic v The Queen (supra) said at [13]:
"In determining objections to the admissibility of a confession that is said to have been made involuntarily, the court does not attempt to determine the actual reliability of the confession. Rather, it assesses the nature and effect of any inducement to make the confession in order to determine whether the confession was made because the will of the confessionalist was overborne by the conduct of a person or persons in authority. That conduct may consist of a threat, promise or inducement made or held out by the person or persons in authority with the additional requirement in Victoria that the threat, promise or inducement be really calculated to cause an untrue admission of guilt. In all parts of the Commonwealth, there remains a discretion in the trial Judge which supplements the exclusion of involuntary confessions (R v Lee (supra))."
The learned Chief Justice then proceeded to identify the various factors which, if established, may lead to the discretionary exclusion of the confessional statement. In recognising that such evidence could be excluded on the ground of unfairness, Brennan CJ emphasised the importance of identifying the nature of the unfairness justifying the exclusion of a voluntary and apparently reliable confession and said, at [25]:
"In its application to the evidence of confessions, the public policy discretion requires a balance to be struck between the public interest in placing the court in possession of all relevant admissible evidence and the public interest in ensuring that law enforcement officers do not act unlawfully or improperly. In striking this balance, any doubt about the reliability of a confession obtained by the unlawful or improper conduct is a factor that would have to be taken into account."
Having identified and acknowledged the discretion to exclude relevant evidence on the grounds that it was unlawfully obtained (Foster v The Queen (1993) 67 ALJR 550 at 554 and Bunning v Cross (1978) 141 CLR 54 at 74 ‑ 80), the learned Chief Justice turned to consider the public policy discretion acknowledging that the two discretions could, and often did, overlap saying at [28]:
"Of course, the two discretions still overlap and in a sense it is immaterial whether a trial Judge considers the facts of a case under one heading rather than another. But a consideration of the nature and degree of the conduct of law enforcement officers under the heading of public policy clarifies the significance of any illegal or improper conduct on the part of law enforcement officers. If a confession is voluntary and apparently reliable, the only unfairness to an accused in admitting his confession against him is that he was induced to make the confession by conduct which is contrary to statute or to public policy. For example, if a confession is obtained in breach of an important statutory directive to law enforcement officers or by their deliberate or reckless disregard for the law or for proper standards of conduct, the public interest may require the rejection of a voluntary and apparently reliable confession. In such a case, the public policy discretion will be exercised much the same way as Dixon J contemplated in McDermott [supra] that the fairness discretion would be exercised or as Toohey J appears to have intended that discretion to be exercised in Duke (1989) 180 CLR 508 at 526 ‑ 527."

Turning then to the discretion to exclude unduly prejudicial evidence - Driscoll v The Queen (1977) 137 CLR 517 per Gibbs J at 541, Brennan CJ confirmed that the weight of any such confession, once admitted, is for evaluation by the tribunal of fact. At [30], his Honour said:
"However, once a confession is admitted in evidence, the weight to be placed upon it is a matter for the jury. In Wendo v The Queen (1963) 109 CLR 559 at 562 Dixon CJ said:
'It appears to me that once it was established that a prisoner understood what he was doing in making a statement which, if true, would amount to a confession, it is admissible in evidence quite independently of its probative value. See the discussion in Sinclair's Case (1947) 73 CLR 316 at 336 ‑ 338. I do not think really that probative value is ever a question for the Judge to decide conclusively. At all events I am not able to call to mind any conditions in which it would be.'
Perhaps a case such a Surujpaul v The Queen [1958] 1 WLR 1050, where the confessionalist has no knowledge of the fact confessed, is an example of the application of this category of exclusion to a statement that is prima facie inculpatory. The scope of this conclusion has been considered in several cases [footnotes omitted] but it is not necessary to consider them in these proceedings."
Turning to the application of these principles to the facts under consideration in the case before the court, Brennan CJ characterised the position in relation to the Swaffield prosecution as follows at [34]:
"There is a public interest in ensuring that the police do not adopt tactics that are designed simply to avoid the limitations on their inquisitorial functions that the courts regard as appropriate in a free society. In the particular circumstances of this case, the majority of the Court of Appeal gave great weight to that interest. Against that interest, the public interest in having Swaffield's admissions available to the Court on his trial for arson has to be weighed. Pincus JA dissented. There was much to be said for either view. This Court can determine which view ought to have prevailed but when the question touches the standards and methods of police investigation in a particular case, it is undesirable for this Court to intervene except in cases where the decision of the Court below has proceeded on an erroneous principle or is otherwise manifestly wrong. In Swaffield's case, that condition is not satisfied. I would therefore dismiss the appeal in that case."
By contrast, his Honour took the view that there had been no imposition of any kind in admitting the confession obtained from Pavic to his friend who was acting on behalf of the police. His Honour said at [35]:
"Clancy was not a police officer or other person in authority over Pavic. There was no impropriety in the police obtaining Clancy's consent to the recording by Clancy of his intended conversation with Pavic. A serious crime had been committed and the means adopted for its solution and for the securing of evidence against the prime suspect were quite legitimate. The investigation of crime is not a game governed by a sportsman's code of fair play - Bunning v Cross (1978) 141 CLR 54 per Stephen and Aickin JJ at 75. Fairness to those suspected of a crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation or the giving of a sufficient opportunity 'to invent plausible falsehoods' - R v Lee (1950) 82 CLR 133 at 152.
The fact that Clancy was regarded as trustworthy by Pavic is an indicator of the reliability of the admissions made to Clancy. There was no public interest to be served by rejecting those admissions. The Court of Appeal in Victoria was therefore right to dismiss Pavic's application for leave to appeal."
In the joint reasons of Toohey, Gaudron and Gummow JJ their Honours identified four bases for the rejection of a statement by an accused person which had been recognised in earlier decisions of the High Court. The first requirement is that a confessional statement must be voluntary, but in the appeals by Swaffield and Pavic there was no suggestion that the statements made were involuntary. The second basis for exclusion is that it would be unfair to the accused to admit the statement because of the need to protect the rights and privileges of the accused person. The third basis for exclusion dwells not on unfairness to the accused but upon considerations of public policy which render it unacceptable to accept the evidence notwithstanding that it was voluntary and that its reception would not be unfair to the accused. This basis rests on the need to protect the public interest. The fourth basis measures the probative value of the statement in comparison with its potential prejudicial impact and arises from the need by the court to guard against a miscarriage of justice (see [50] ‑ [52]). Their Honours also acknowledged that these factors of voluntariness, reliability, unfairness to the accused and public policy considerations could well overlap and, when they did, might not be capable of discrete attention [74].
Detailed attention was given to conversations secretly recorded at [80] ‑ [92], including a consideration of the Canadian decisions which, in part, reflected the influence of the Canadian Charter of Rights and Freedoms and with special regard to the role of undercover police agents. After considering both Australian and Canadian authority addressing these issues, their Honours said at [91]:
"However, the notion of compulsion is not an integral part of the fairness discretion and it plays no part in the policy discretion. In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused's freedom to chose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the Court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude and not to admit, the Court will look at all the circumstances. Those circumstances may point to unfairness to the accused if a confession is admitted. There may be no unfairness involved but the Court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the Court but it does not prevent the development of rules to meet particular situations."
When coming to apply these principles to the facts of the cases before the High Court, Toohey, Gaudron and Gummow JJ accepted that Swaffield's right to chose whether or not to speak to the police had been abrogated by the process of infiltrating an undercover police officer with a recording device into his cell, and accepted that the Canadian Supreme Court regarded the use of a subterfuge to obtain a statement as likely to be in violation of the choice whether or not to speak, but even then would treat a quite unelicited admission as not calling for the exercise of the discretion to exclude [97]. Their Honours concluded that in Swaffield's case, the admissions had been elicited by an undercover police officer in clear breach of the suspect's right to choose whether or not to speak and that, accordingly, they had been rightly excluded.
In R v Swaffield & Pavic v The Queen (supra) Kirby J also addressed the factors of voluntariness at [121], reliability at [124], unfairness at [129] and public policy at [132]. Turning directly to the admissibility of covertly recorded confessions, his Honour identified four factors for evaluation at [138], as follows:
"These conclusions notwithstanding, four principal considerations arise in relation to the covert use by police of surveillance tapes. They are that such circumstances involve depriving the suspect of a caution which would otherwise be required of police; the opportunity to consult a lawyer; of the right to remain silent; and of the general privilege of the suspect against self‑incrimination."
His Honour then proceeded to consider in detail each of those four principal considerations, undertaking a review of the legislation and precedents in Canada as well as the Australian authorities, before concluding at [155]:
"I agree in the approach expressed by the Supreme Court of Canada. I do not consider that it is derived from the Charter so as to make it inapplicable to analogous circumstances in Australia. The test propounded is consistent with the general approach which our law has taken towards deception by law enforcement officials. Subterfuge, ruses and tricks may be lawfully employed by police acting in the public interest (Ridgeway v The Queen (1995) 184 CLR 19 at 37; R v Christou [1992] QB 979 at 989; cf Rothman v The Queen [1981] 1 SCR 640 at 697). There is nothing improper in these tactics where they are lawfully deployed in the endeavour to investigate crime so as to bring the guilty to justice. Nor is there anything wrong in the use of technology, such as telephonic interception and listening devices although this will commonly require statutory authority [footnote omitted]. Such facilities must be employed by any modern police service. The critical question is not whether the accused has been tricked and secretly recorded. It is not even whether the trick has resulted in self‑incrimination, electronically preserved to do great damage to the accused at the trial. It is whether the trick may be thought to involve such unfairness to the accused or otherwise to be so contrary to public policy that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value. In the case of covertly obtained confessions, the line of forbidden conduct will be crossed if the confession may be said to have been elicited by police (or by a person acting as an agent of the police) in unfair derogation of the suspect's right to exercise a free choice to speak or to be silent. Or it will be crossed where police have exploited any special characteristics of the relationship between the suspect and their agent so as to extract a statement which would not otherwise have been made."
As already mentioned, Kirby J was the sole dissentient to the decision that the evidence of admissions made by Pavic to his friend Clancy, secretly recorded by the police, were admissible. His Honour expressed the basis for this ultimate conclusion at [166]:
"Both statements by the accused were accepted as voluntary. Each was reliable. Each was certainly relevant and otherwise admissible. They were not said to have been illegally or improperly obtained. But they were obtained unfairly in derogation of a fundamental right belonging to the accused in each case. Each accused had exercised that right, as his interrogators well knew. To circumvent the free choice to speak or be silent, which the suspect had exercised in favour of silence, by the use of an undercover police officer or a police agent, was not only productive of the risk of an unfair trial to the accused. It was also, in my view, contrary to the public policy which protects the fundamental rights of suspects and holds police, their agents and other investigating officials in check when they are engaged in the questioning of suspects. A conviction of each accused based on such evidence would have been purchased at too high a price."

Subsequent developments dealing with the undercover police method - "Homicide Technique"

Such is the importance of the decision in R v Swaffield & Pavic v The Queen (supra) that it has naturally resulted in considerable subsequent judicial application and academic analysis. Two articles considering the effect of the decision are P Lowe: "Confessional Statements, Voluntariness and Protective Rights, Rights and Remedies under the Uniform Evidence Act" (2000) 74 ALJ 179 and L Martinez: "Confessions and Admissions to Undercover Police and Police Agents" (2000) 74 ALJ 391. These include detailed discussions of a series of cases in State Supreme Courts or Courts of Appeal where evidence obtained covertly by undercover police operatives has been held to be admissible on the application of the R v Swaffield & Pavic v The Queen criteria. These include R v Suckling [1999] NSWCCA 36 where the accused had been charged with murder and had declined to be interviewed by the police on two separate occasions before being approached by a former cell mate acting on behalf of the police; R v Burt [2000] 1 Qd R 28 where, on a charge of indecent dealing and incest, a recorded conversation between the accused and his complainant daughter who was acting on behalf of the police was admitted.
In Tasmania, in R v Weeding [1998] TASSC 125, it was held that evidence of admissions to an investigating police officer questioning a murder suspect in prison, after the suspect had previously been interrogated for four hours and had denied the offence, was inadmissible because of the lack of a caution. The second interview had followed a discussion between the accused and a prison guard at the prison hospital who had provided the police with notes of their conversation and which recorded statements inconsistent with an explanation of self‑defence given to the police in the first interview. That evidence was excluded. And, in Victoria in R v Nguyen [1999] VSC 420, Teague J ruled inadmissible parts of a covertly recorded conversation between the accused and the mother of the deceased which took place at the instigation of the police and was recorded by a listening device installed in the accused's home. In that instance there was a series of factors giving rise to the unfairness discretion and the public policy discretion which also weighed against the admissibility of the evidence.
More recently, attention has specifically been directed in a series of cases, mostly in Victoria, to the admissibility of evidence resulting from police undercover operations conducted on the basis of the "Canadian model" for the homicide scenario as was utilised in the present case. A general description of this methodology can be found in the decision of the High Court in In the Matter of an Application by the Chief Commissioner of Police (Vic) [2005] HCA 18; (2005) 214 ALR 422 which involved a challenge to the lifting of suppression orders discharged by the Court of Appeal of Victoria in relation to the methodology of the Victorian Police in pursuing undercover operations using this technique. The decision was concerned with the standing of the Commissioner of Police to appeal from orders made by the Court of Appeal of Victoria and did not review the correctness of decisions made at first instance by Judges of the Supreme Court of Victoria to allow into evidence admissions made by subjects as a result of a process based on the Canadian model. However, Kirby J did observe, with respect to the police techniques being applied, at [118]:
"The Court of Appeal was clearly, and properly, open to argument concerning the need for specific and long‑term protection of the identity of the undercover operatives, a course not disputed by 'The Age' below or in this Court. However, The Age rightly directed the Court's attention to the public interest, among other things, in community discussion of the tactics used by police*. Potentially, that interest would be inhibited by an unrestricted or long‑term prohibition on publication such as the Chief Commissioner was seeking and the trial Judges had refused."
In the footnote to this paragraph his Honour noted, in part:
"Inevitably many cases have been decided at trial or on appeal in Australia concerning 'subterfuge, ruses and tricks ... employed by police, acting in the public interest': see Swaffield (1998) 192 CLR 159 at 220 [155]; cf R v Heaney and Welsh [1998] 4 VR 636 at 647; Vale (2001) 120 A Crim R 322 at 335‑6 [52], 337 [56]. See also Roba (2000) 110 A Crim R 245; Dewhirst (2001) 122 A Crim R 403 at 408 [26]; Binning v Lehman (2002) 133 A Crim R 294; R v Chimiri (2002) 136 A Crim R 381; and R v Juric (2002) 4 VR 411 at 443‑4 [54]."
These more recent developments have also been enumerated in two academic articles by Mr A Palmer: "Applying Swaffield: Covertly Obtained Statements and the Public Policy Discretion" (2004) 28 Crim LJ 217 and "Applying Swaffield Part II: Fake Gangs and Induced Confessions" (2005) 29 Crim LJ 111. These discuss a series of decisions of Judges in the Supreme Court of Victoria, relied upon by counsel for the prosecution in the present case. The principal decisions are R v Tofilau (2003) 149 A Crim R 446, a decision of Osborn J; R v Favata [2004] VSC 7, a decision of Teague J, already mentioned, and R v Marks [2004] VSC 476; 150 A Crim R 212 per Coldrey J.
A comprehensive analysis of the principles applying to the admissibility of evidence of admissions to undercover police operatives as a result of the "homicide technique" was undertaken by Osborn J in R v Tofilau (supra). Tofilau's case was one of those which led to temporary suppression orders resulting in the unsuccessful challenge by the Victorian Commissioner of Police to later court orders discharging those suppression orders in Re an Application of the Victorian Police Commissioner (supra). It involved the use by the police of an undercover technique which is not materially distinguishable from the technique applied in "Operation Raven" in the present case, leading to the arrest and charge of these two accused. A significant feature in R v Tofilau is that the accused did not, prior to the undercover police operation, decline to be questioned by the police although he did refuse to answer some questions. The decision in Tofilau held that the admissions made to the undercover operative - the "gang boss" - were voluntary and that there was no reason based in unfairness, public policy or otherwise to exclude the reception of that evidence at trial.
In the course of a necessarily lengthy judgment, Osborn J examined specific features of the undercover police scheme in the light of submissions that they rendered the resulting admission involuntary, unfair, contrary to public policy or of low probative value in comparison with prejudicial effect. In relation to the issue of voluntariness and submissions that the undercover operation involved inducements constituted by the encouragement given to Tofilau to enter the gang, the thought of substantial future illegal earnings, and the belief already induced that Tofilau had earned a substantial amount of money from his participation in the supposed criminal activities which the undercover scenario had previously acted out, his Honour said at [48]:
"The fundamental deceit in the present case was as to the identity and roles of those to whom the accused was speaking. Subsidiary inducements were all elements in the scenario of false identity and roles; namely the prospect of assistance to fix things with the police, the payment of $10,000 as the accused's share of the proceeds of a purported robbery, and the prospect of lucrative involvement in the future operations of the gang. In this regard it is pertinent to note that in both Swaffield and Pavic the High Court proceeded on the basis that no issue of basal involuntariness arose, despite the fact that in Swaffield the accused was fundamentally deceived as to the identity of the undercover police officer with whom he spoke, and in Pavic was misled as to whether the witness Clancy was believed by police to be a suspect and of course as to whether Clancy was fitted with a covert microphone."
Then, addressing a further submission that the scenarios enacted by the undercover police contained implied threats with regard to potential dangers and losses if co‑operation were not forthcoming, his Honour concluded that the will of the accused had not been overborne, saying later:
"I am satisfied on the balance of probabilities in the present case that the confession was in fact voluntary. There was no sense in which the confessional statements can be regarded as 'manufactured'. The substance of them was clearly the result of the accused's volition."

This aspect of inducements being made by "persons in authority" goes to the issue of whether or not the ensuing statement was voluntary by examining, as was stressed in Collins v The Queen (1980) 31 ALR 257 by Brennan J (dissenting - but not on this point), the effect which they have on the will of the person being interviewed. It is on those occasions when a person's will is overborne, whether by inducements or by threats, that the confession becomes involuntary. It may be voluntary and, therefore, prima facie admissible but still be excluded because it was obtained unlawfully, or with serious impropriety, or because for public interest reasons it is considered to be unacceptable, or, finally, because of unfairness to the accused. In R v Collins (supra) at 308 Brennan J said:
"So the admissibility of the confessions as a matter of law (as distinct from discretion, later to be considered) is not determined by reference to the propriety or otherwise of the conduct of the police officers in the case, but by reference to the effect of their conduct in all the circumstances upon the will of the confessionalist. The conduct of the police before and during an interrogation fashions the circumstances in which confessions are made and it is necessary to refer to those circumstances in determining whether a confession is voluntary. The principle, focusing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made. Voluntariness is not an issue to be determined by reference to some hypothetical standard; it requires a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused."
I have previously remarked that my viewing of the videotaped interview with Darren Lauchlan and "Gary" the "crime boss" during the interview at the Crown Casino Hotel room on 18 December 2003 satisfies me that there was no overbearing of Lauchlan's will, whether by inducements, by threats or due to any other reason. He was composed, apparently at ease, and speaking freely. His responses were to a significant extent elicited by questions raised by "Gary" and, indeed, his second and final explanation of the events involving Mr Rossi's death followed because his first (false) description of those events was rejected by "Gary". Notwithstanding this, he did speak freely and I am satisfied that the statements which he made were not those of a person whose will had in any way been overborne.
There is further evidence to support this conclusion, namely the listening device intercepts of the conversations between Lauchlan and Hammond at the St Kilda flat later on the evening of 18 December 2004 after the episode at the Crown Casino when Lauchlan explained to Hammond what had transpired and how he had given the details of Rossi's death to "Gary". Not only does that material from the St Kilda flat intercepts tend to confirm the accuracy of the events described by Lauchlan to "Gary" about his involvement in Rossi's death, but it also confirms that he provided the information to "Gary" in the exercise of his own free choice.
Although it was not raised in the submissions before me, I consider that I should note that the course of common law authority now recognises that involuntariness caused by influences other than those of persons in authority may result in a confession being excluded. So if incriminating statements are made by an accused as a result of torture, violence or some other specific threat or inducement by others rather than by persons in authority, they may be excluded: R v Geesing (1985) 38 SASR 226 per King CJ at 231 ‑ 232. In that case the learned Chief Justice adopted the statement of the law made by Walsh JA in R v Attard & Mifsud [1970] 1 NSWR 750 at 756, as follows:
"But the rule against the admission of involuntary statements is not confined to statements made as the result of threats or inducements by a person in authority. There are decisions in which the rule has been stated in a way that suggests that the rule relates only to statements so induced and that a statement induced by a threat or promise by a person in authority is the only case of non‑voluntary statement. However, it is established by decisions of the High Court that this is a mis‑conception and that statements which are regarded as non‑voluntary because so induced are but typical cases of the application of a general rule that a confessional statement, which is not shown to be voluntary, is excluded from evidence, whatever may be the reason or the circumstances which caused the trial Judge not to be satisfied that it was voluntary. I refer without repeating them here, to the expositions of the rule given in Cornelius v R (1936) 55 CLR 235 at 245 and 246; McDermott v R (1948) 76 CLR 501 at 511, 512 and 516; and R v Lee (1950) 82 CLR 133 at 144, 146, 149 and 150."
Again, the position remains the same because I have been quite persuaded that the statements made by Darren Lauchlan to "Gary" in the interview of 18 December 2003 were in fact voluntary, that is, made in the exercise of his own free will.

Discretionary factors

As I am satisfied that the statements made by Darren Lauchlan were voluntary, it is now necessary to consider whether or not they are so unreliable, because of the offer of money, that they should be excluded as unsafe in the exercise of the established judicial discretion or because their prejudicial effect outweighs any probative value. In this respect the ultimate evaluation of the reliability of the admissions would need to be by a jury and it would only be if I were satisfied, on the probabilities, that they were unreliable that I should exclude them in the exercise of a discretion of this point if, otherwise, I consider them to be of probative value.
I do not have any doubt that the confessional statements are highly probative of the alleged involvement of Darren Lauchlan in the death of Stephen Rossi, notwithstanding his explanation given later to the interrogating police officers in Melbourne that the story which he gave to "Gary" was false because of his desire to be accepted by the gang. As such, the evidence is extremely incriminating and, consequently, damaging to Lauchlan's own personal interests but this does not mean that it is prejudicial in the sense that it might mislead or distract a jury from the proper task of reaching a verdict of guilty or not guilty upon the evidence in the case or give rise to false or collateral issues.
I have previously set out passages from the judgment of Osborn J in R v Tofilau (supra) which deal with how disclosure by this evidence of a willingness by Darren Lauchlan to engage in other criminal activity can appropriately be dealt with. I am satisfied that this aspect of the evidence can be dealt with by an appropriate direction to any jury in due course.
Therefore, on the basis that the evidence is probative of guilt, I return to the issue of whether or not it has been established that it is so unsafe or unreliable that it should be excluded in the exercise of discretion. Clearly enough, Darren Lauchlan may seek to meet this evidence at trial by asserting that his admission of guilt was false and designed simply to ensure his acceptance into the criminal group which "Gary" was evidently controlling. There are several potential answers to this from the evidence in the case but it is unnecessary for me to attempt to examine those because I am satisfied that this is ultimately an issue of fact to be decided by the jury at the trial. The final admissions of guilt in the interview at the Crown Towers appear to be very convincing and incriminating. Whether they will be accepted, either alone or with other evidence, as constituting proof beyond reasonable doubt of Lauchlan's involvement in the murder will be for a jury to determine. I am not in the least satisfied that there is anything about the evidence to characterise it as so unreliable or unsuitable to be withheld from a jury because of want of reliability.

Subversion of accused's right to silence

The distinction between the phrases "privilege against self‑incrimination" on the one hand and "right to silence" on the other is real and has been explained in some detail by Dr S McNichol: "The Law of Privilege", Law Book Co (1992) at 273 et seq where it is stated that the so‑called right to silence is, strictly speaking, the right of an accused person to decline to give evidence at his or her trial. Yet it is nevertheless clear that there has been express recognition, at the highest level, of the right of an accused person to remain silent both before trial and by not giving evidence at trial - Bruce v The Queen (1987) 61 ALJR 603 at 604. In other situations the operation of the privilege does not prohibit the asking of a question or a series of questions, the answers to which may be incriminating but, rather, justifies a refusal to answer any one or more of a series of questions where the answer to the particular question may incriminate - Allhusen v Labouchere (1898) 3 QBD 654 at 660 - see also per McHugh J in Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 543 ‑ 548.
No doubt it may be confidently assumed that had Darren Lauchlan known that "Gary" was a police officer working in conjunction with other undercover agents in the investigation of the death of Stephen Rossi he would not have made the admissions implicating himself in Rossi's death or even, perhaps, spoken to "Gary" at all. From this it is argued that the deception enacted upon Lauchlan by the undercover operation deprived him of, or subverted, his right to silence which he had invoked on at least one occasion during the course of the formal police interview on 11 October 1992 (Exhibit 6(1), pp 50 ‑ 56).
The first step in the analysis of this proposition has already been undertaken in regard to the submissions dealing with voluntariness. That is, the evidence establishes that Darren Lauchlan was not compelled to speak, nor was his will overborne by threats or inducements or by any other factors whether by persons in authority or not. The statements which he made were made voluntarily in the exercise of his own free will. That is to say he chose to speak when he was under no obligation or compulsion to speak. He could have declined to speak, either for no reason at all or because he did not wish to say anything which might possibly incriminate him. Nothing which happened deprived him of the right to remain silent or of his right to decline to answer particular questions. Therefore the submissions that he was deprived of his right to silence must be rejected.
However, so the argument for Darren Lauchlan runs, he was tricked into believing that he was not speaking with the police and that any incriminating statements which he made would not be used against him. This was because he believed that he was dealing with criminals who had a common interest with him in concealing any evidence of criminal conduct. There is no doubt that he was deceived in this respect but he was still not deprived of his right to silence. A better formulation of his complaint may well be that he was questioned by the police for the purposes of obtaining incriminating information, without being cautioned and in circumstances where the police officer not only concealed his true purpose and identity but actively misled him in both those respects.
This is the factor, perhaps the most powerful factor, relied upon by counsel for Darren Lauchlan in support of the submission that the evidence should be excluded in the exercise of discretion because of impropriety or, because it is contrary to the public interest of ensuring that police investigations are conducted in a way which preserves a suspect's rights and his or her freedom to decline to speak to authorities if so desired.
Such factors can lead to the discretionary exclusion of confessions or admissions. They were recognised as having that potential in Cleland v The Queen (1982) 151 CLR 1 - see per Dawson J at 33 ‑ 35. However, there remains the possibility that the discretion can be exercised in favour of the admission of the evidence. It is a question for balanced consideration about whether or not the supposed imposition on the accused is of a magnitude to justify the rejection of the evidence. In this respect, see R v Pfennig (No 1) (1992) 57 SASR 507 where Cox J held that alleged admissions made by the accused to a fellow inmate at the remand centre after arrest when the inmate, at the request of the police, had befriended the accused and falsely pretended to him that he was under investigation for murder and drawn him into conversations amounted to a police trap for the purpose of circumventing the accused's right to silence - see 57 SASR 507 at 515 and, of course, the result in Swaffield (supra) itself.
In the end, the matter comes down to the:
" ... exercise of an overall discretion balancing the individual and public interest in protecting the rights of the accused against the public interest that serious crime be the subject of law enforcement" - per Osborn J in Tofilau (supra) at [88].
In that case his Honour concluded that, in circumstances closely comparable to those presently before this Court, prevailing community standards would not support the exclusion of the confessional statements. They had not there led to any conclusion that the behaviour of the police had brought the criminal justice system into disrepute, or that the evidence was obtained at too high a price in the terms of the rights of the accused. Similar conclusions were reached by Coldrey J in R v Marks (supra) where evidence resulting from a similar undercover operation was also admitted. In my view, those conclusions apply with equal force in the present case and, if further justification for the ensuing result is required, it is supplied by the fact that the evidence demonstrates that Darren Lauchlan was under no compulsion, de facto or otherwise, to speak when he made the disclosures to the crime boss "Gary" at the interview at the Crown Casino Hotel. It was never represented to him, nor is there any basis for believing, that he was not entitled to remain silent or to decline to participate in the discussion which led to the admissions.
There are some superficial analogies between this case and a police interrogation conducted without any caution with a suspect who was seriously believed to have committed the crime under investigation - see Van der Meer v The Queen (1988) 62 ALJR 656 per Mason CJ at 661; Sell v The Queen (1995) 15 WAR 240 and Norton v The Queen (2001) 24 WAR 488. However, the analogy breaks down at the point where the lack of a caution in such a police interview can give rise to a belief by the suspect that he has no choice but to participate in the interview whereas, in reality, he has the right to decline to answer questions. In the present case there was no representation, express or implied, that Darren Lauchlan was obliged to participate in the discussion with the crime boss, quite the contrary. Accordingly, cases dealing with admissions or confessions to police made in interviews when cautions were not previously administered do not appear to be applicable.
In R v Heaney and Welsh [1998] 4 VR 636 Coldrey J excluded from evidence a tape recorded conversation between an accessory after the fact to a killing and the alleged killer when the accessory was acting on behalf of the police and tape recorded his conversation with the alleged offender. The tape recording containing the incriminating evidence was accepted as a record of a voluntary statement and was not thought to be unreliable. It involved no illegality or impropriety and therefore was not excluded on those grounds. However, Coldrey J did exclude that evidence because the accused's procedural rights (including his freedom to choose whether or not to speak to police) had been impugned by the deliberate attempts of the accessory, acting on behalf of the police, and founded on falsehoods to obtain admissions. The line of questioning was regarded as being significantly misleading and was excluded because of the unfairness discretion. At 647, Coldrey J said:
"Where, as in the present case, 'the accused's freedom to chose to speak to the police' has been impugned, the circumstances giving rise to that situation should be examined by the court. This must necessarily include a consideration of the means by which any admission or confession has been obtained.
Here, those means involved a false account by Engels (the accessory) as to his contact with the police; the situation giving rise to the discovery of the deceased's body; and as to his willingness to accept responsibility for the death of Ms Piatkov, or at least to explain to police how such death occurred.
The method Engels adopted in the conversation induced rather than facilitated admissions from the accused Heaney. ...
Each case must of course turn on its individual facts. In the trial of Pavic I formed the view, listening to the conversations as a whole, that the admissions made did not have their genesis in any misleading statements by Clancy. In the present case I have come to the opposite conclusion."
I have already noted how, in R v Tofilau (supra), Osborn J noted the position taken in Heaney (supra) but concluded that in Tofilau's case the undercover operatives did not materially mislead the accused as to the position of the police investigation and that is definitely also the position in the present case.
In R v Favata [2004] VSC 7 Teague J was again dealing with disputed admissibility of evidence of alleged admissions made to undercover police operatives in the course of the Canadian methodology or the homicide scenario. At [28] and [29] Teague J examined a submission put by counsel for the accused that the evidence should not be received because in earlier police interviews the accused had declined to answer certain questions and made "no comment" answers to others so that further questioning by the police of any kind infringed his right to decline to answer questions. Teague J did not accept that submission and regarded Favata's behaviour as a clear example of selective answering - see per Brennan and Toohey JJ in Weissensteiner v The Queen (1993) 178 CLR 217 at 231 and his Honour went on to say (at [30]):
"I treat the legal position to be that in considering the exercise of discretions as to confessional material, a selective answering of questions is a consideration to be taken into account. It is not so obviously a factor to be allowed for in favour of exclusion as a continuing exercise of the right to choose not to answer a question by not answering any. It is not so obviously a factor to be allowed against exclusion as an election to answer all questions."
The admission of similar confessions obtained by this method was also accepted in DPP v Ghiller [2003] VSC 350; R v Clarke [2004] VSC 11 and R v Marks (supra). In DPP v Ghiller (supra) at [63] Cummins J said:
"There seem to me to be five essential matters bearing on the question of public policy. The first is, and I repeat, the accused was a free citizen and not in police custody. The second is the accused was acting and speaking voluntarily. The third is the accused was acting and speaking enthusiastically and often at his own sole initiative. The fourth is, and this is significant, no criminal conduct in fact occurred. It was all an artificiality, a creation, what would be called in the literature, a conceit. The fifth is the accused was not encouraged into conduct in order to arrest and charge him for that conduct. That matter is of special significance."
In my view, considerable care should be reached before concluding that, simply because a suspect has declined to be interviewed by police or to answer certain questions on the ground that to do so may incriminate himself, some subsequent investigation such as an undercover operation of this kind may amount to an impermissible subversion of the accused's "right to silence". Clearly, there are some cases in which this may well be the result such as Pavic (supra) or because of misleading and false information conveyed in the course of questioning such as in R v Heaney and Welsh (supra).

In the first of his two articles on this subject, Mr A Palmer (2004) 28 Crim LJ 217 at 224 wrote:
"Whether or not the prior exercise of the right to silence is a decisive factor in favour of exclusion, the fact that the accused did not exercise his or her right to silence when interviewed will not necessarily make it fair for the police to seek to obtain further covertly‑recorded admissions (see R v Roba (2000) 110 A Crim R 245 at 247; R v Jones [2001] TASSC 121 and R v Dewhirst (2001) 122 A Crim R 403). As Coldrey held in R v Dewhirst (2001) 122 A Crim R 403 at 408, 'the fact that the accused had earlier declined to exercise his right to silence and had answered police questions does not, in my view, provide a warrant to surreptitiously re‑interview him without regard to those rights in an unstructured and informal setting', free of the 'normal legal restraints'. This is an important extension of Swaffield, given that the rhetoric in that case drew so heavily on a right to silence, and the need to safeguard suspects from any attempts by the police to circumvent it. The case law since Swaffield recognised that the right to silence, although important, is only one of the safeguards that protect suspects."
The privilege against self‑incrimination is the right of any citizen, where it applies, to decline to answer questions put by persons in authority or by any other person, because of the tendency which the answer might have to incriminate him. As pointed out earlier, any incriminating answer, given to a police officer or to a lay person, is capable of constituting an admission. The fact that the privilege is not invoked because the suspect is talking to a layman, or to someone whom he believes to be a layman and not a police officer does not shield the answer. Any tacit assumption that there is some form of amnesty for an offender who makes admissions to a layman, or in an unguarded moment, is quite wrong. If the admissions are made because of a mistake by the accused which has been induced by investigating police officers, such as a belief that discussion with a solicitor or counsel is privileged, whereas in reality it is being unlawfully intercepted, would give rise to an exclusion because the admission was obtained in breach of an occasion of privilege. But the present case and its methodology involves no subversion of this privilege.

Exclusion of evidence of part of the events in an early scenario - propensity evidence

In the course of the second scenario actually enacted between undercover operative "John" and the accused Lauchlan at Queenstown in Tasmania on 9 November 2003, the accused was led to believe that another undercover police operative ("Sue") was a prostitute who had absconded from the gang having stolen $20,000 and that "John", on behalf of the gang, was meeting her to demand the repayment of the money. The full details have already been described. The scenario, as enacted, involved a meeting with "Sue" who was only in a position to return $5000 in cash, which she did, explaining that the balance of the money would be paid later. When "John" and Lauchlan were driving together after leaving the meeting with "Sue" the accused was recorded as having said, with regard to "Sue": "All the hills around here, put her in the car, light it up and push it over the side, no DNA" - a remark which, so the prosecution submitted, revealed a propensity to resort to violence by killing a person, placing her body in a motor car, setting it on fire in a manner which would leave no traces of DNA.
Although that discussion had no direct bearing on the Rossi killing and was a reference to a hypothetical problem of dealing with "Sue", counsel for the prosecution nevertheless submitted that it should be part of the evidence adduced at Lauchlan's trial because it disclosed a propensity on his part, to resort to violence in a particular way and revealed a guilty knowledge of a method of disposing of a body without leaving traces of DNA which bore similarities to the manner in which attempts had been made to deal with the body of Stephen Rossi. Counsel for the prosecution submitted that this was propensity evidence within the meaning of that term in s 31A of the Evidence Act 1906 which was, therefore, admissible at the trial in this case if the court considered that this evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value and that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
However, I am very far from satisfied that this evidence of this conversation between the undercover operative "John" and the accused Lauchlan in the car at Queenstown on this occasion is probative evidence involving Lauchlan in the alleged murder of Rossi, let alone that it has significant probative value.
Propensity evidence of this kind is but one form of circumstantial evidence and it attracts particular attention because of its high potential for prejudicial effect. In Pfennig v The Queen (1995) 182 CLR 461, Mason CJ, Deane and Dawson JJ held that in dealing with propensity evidence of this kind and in deciding whether or not it should be admitted, there must be a high degree of connection between the alleged propensity and the commission of the offence for which the offender is on trial. In the present case, the observation made by Darren Lauchlan to the undercover police officer in the car near Queenstown about disposing of "Sue" does not appear to me to have any close connection with a probability that Lauchlan murdered Rossi, as alleged. It does, however, show a willingness to resort to violence and a knowledge that bodies may be disposed of without trace by a particular method. That is not directly incriminating, yet it is extremely prejudicial. In my view, this evidence should be excluded and the description of this particular scenario edited to ensure that it is omitted from any evidence put before the jury at this trial.
In other words, I am not satisfied that the first requirement for the admission of such propensity evidence specified by s 31A(2)(a) of the Evidence Act has been demonstrated but, even if it had been demonstrated, I would nevertheless be of the view that the introduction of such evidence would have a serious risk of an unfair trial because of introducing a seriously prejudicial, but inconclusive, piece of evidence of very little probative value.

The evidence from the listening devices at the St Kilda flat

As already described, Darren Lauchlan was taken by "John" back to the flat in St Kilda after the interview with "Gary" at the Crown Hotel in Melbourne on 18 December 2003. In the course of that evening he spoke to the co‑accused, Lynda Hammond, about the interview with "Gary" at Crown Towers and this conversation was intercepted by the listening devices which had been placed in the flat. The conversation as intercepted, according to submissions of the State, amounts to an affirmation of the explanation given to "Gary" shortly beforehand about Lauchlan's role in the death of Stephen Rossi and is inconsistent with the later explanation, given by Lauchlan to the police in the interview at the St Kilda Police Station after his arrest on 19 December 2003, that a false version of events had been given to "Gary" solely in order to gain acceptance by the criminal gang. As such it is sought to be tendered against Lauchlan at his trial as a further admission or series of admissions. His objection to the reception of that testimony is based also on the grounds that the entire response to Operation Raven was involuntary and unfair, and is evidence which should be excluded in the exercise of the judicial discretion as being contrary to public policy.
Even if I had been disposed to uphold any of those submissions in relation to the meeting with "Gary" on 18 December 2003, it would be very difficult to see how the same result should follow for a discussion which Darren Lauchlan had with Lynda Hammond in their flat in St Kilda when none of the undercover operatives was present and where there could be no implied threat to, or hope of advantage for, Lauchlan in discussing matters with his de facto partner. Nor are the intercepts of that conversation affected by any discretionary matters concerning unfairness, contrariness to public policy or unreliability which might otherwise have applied to Lauchlan's disclosure to the undercover police officers. What was intercepted by these listening devices was a dialogue between a suspect and his partner in which each discussed the former's disclosure of involvement in criminal activities which were known to the latter and which Lauchlan had recently made to a third person. The intercepted conversation tends to establish the truth of the disclosures implicating Lauchlan in Rossi's violent death and the accuracy of the account which he gave to "Gary" in the undercover police operation. It is also a further admission itself. I see no reason, therefore, to exclude any of that intercepted conversation from evidence in the case against Darren Lauchlan.
As noted at the outset of these reasons, this voir dire has dealt only with objections to the presentation of evidence against Darren Lauchlan and not against Lynda Hammond. The evidence of the undercover operation culminating in the interview with "Gary" at Crown Hotel on 18 December 2003 is only evidence against Darren Lauchlan and, if admitted at a joint trial, would necessitate a clear direction being given to the jury that it is not evidence against Lynda Hammond. However, the evidence of the intercepted conversations at the St Kilda flat, after the Crown Hotel interview, directly involves Lynda Hammond because she was a party to the conversation and its terms suggest that she was knowingly involved in Lauchlan's efforts to escape detection. To the extent that that is so, the evidence may be admissible against her on the charge that she assisted Lauchlan in order to enable him to escape punishment - contrary to s 10 and s 562(1) of the Criminal Code. However, no objection was taken on behalf of Ms Hammond at the hearing of this voir dire to any of this evidence and I have not been called upon to consider or rule upon the admissibility of any evidence against her. In those circumstances, I am not now required to consider the admissibility of any of this material against Lynda Hammond. No such issue is before me. That must be left for future consideration if and when Ms Hammond makes, or attempts to make, out of time, objection to the admissibility of any of that evidence against her.

Conclusion

Subject to editing the second scenario dealing with the discussion at Queenstown on 9 November 2003 between the undercover operative "John" and the accused Lauchlan about the woman "Sue" in a manner which will delete the reference by the accused to putting "Sue" in a car, setting it alight and pushing it over the cliff with no DNA traces being left, the evidence sought to be presented by the prosecution is, in my view, admissible and should be admitted at the trial of the accused Lauchlan.

Suppression Order

Because of a suppression order made in these proceedings to protect the methodology followed by the police and the identities of the undercover operatives, these reasons may not be published without leave of the Court unless and until the suppression order is lifted or varied.

Addendum

By order made 1 November 2006 all restrictions upon the distribution or publication of these reasons for judgment have been lifted following the completion of the trial of both accused before a jury in this Court on 1 November 2006.