The State of Western Australia v Tomlinson
[2015] WASC 206
•22 MAY 2015
THE STATE OF WESTERN AUSTRALIA -v- TOMLINSON [2015] WASC 206
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 206 | |
| Case No: | INS:266/2014 | 22 MAY 2015 | |
| Coram: | HALL J | 22/05/15 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application to exclude dismissed | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA ROBERT BRIAN TOMLINSON |
Catchwords: | Criminal law Whether interviews between accused and an insurance investigator should be excluded Voluntariness Fairness discretion Whether covert recording of conversation with undercover police operative should be excluded Fairness of police methodology |
Legislation: | Nil |
Case References: | Collins v The Queen (1980) 31 ALR 257 McDermott v The King (1948) 76 CLR 501 R v Drasko [2006] VSCA 257 R v Frangulis [2006] NSWCCA 363 R v Lee (1950) 82 CLR 133 R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396 Van Der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
ROBERT BRIAN TOMLINSON
Defence
Catchwords:
Criminal law - Whether interviews between accused and an insurance investigator should be excluded - Voluntariness - Fairness discretion - Whether covert recording of conversation with undercover police operative should be excluded - Fairness of police methodology
Legislation:
Nil
Result:
Application to exclude dismissed
Category: B
Representation:
Counsel:
Prosecution : Mr B M Hollingsworth
Defence : Mr P J M Sullivan
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Defence : Paul Sullivan
Case(s) referred to in judgment(s):
Collins v The Queen (1980) 31 ALR 257
McDermott v The King (1948) 76 CLR 501
R v Drasko [2006] VSCA 257
R v Frangulis [2006] NSWCCA 363
R v Lee (1950) 82 CLR 133
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396
Van Der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10
1 HALL J: The accused is charged on an indictment dated 26 November 2014 with five charges. The charges are that:
(1) On 27 July 2012 the accused made a false report to police contrary to s 171(2) of the Criminal Code (WA).
(2) On 31 July 2012 the accused attempted to gain a benefit namely $15,000 in money from the payment of an insurance claim by deceit or fraudulent means and with intent to defraud contrary to s 409(1)(c) of the Criminal Code.
(3) On 4 August 2012 the accused wilfully and unlawfully damaged a building by fire contrary to s 444(1)(a) of the Criminal Code.
(4) On 12 August 2012 the accused attempted to gain a benefit namely $131,302.79 in money from the payment of an insurance claim by deceit or fraudulent means and with intent to defraud contrary to s 409(1)(c) of the Criminal Code.
(5) On 2 November 2012 the accused attempted to gain a benefit namely $10,125.50 in money from the payment of an insurance claim by deceit or fraudulent means and with intent to defraud contrary to s 409(1)(c) of the Criminal Code.
2 The matter is set down for a seven day trial commencing on 20 July 2015.
3 By an application filed on 23 April 2015 the accused seeks rulings that the following prosecution evidence is inadmissible:
(1) an audio recorded interview between the accused and an insurance investigator, Ms Jennifer Caldwell, on 12 September 2012;
(2) an audio recorded interview between the accused and Ms Caldwell on 29 August 2013; and
(3) a covertly recorded conversation between the accused and an undercover police operative on 5 September 2013.
4 The accused submits that the two interviews with the insurance investigator are not admissible because the accused's participation was not voluntary. In essence the accused submits that due to financial pressure and a belief that his insurance claims would have been denied if he refused to participate in the interviews he was unable to exercise a free choice as to whether to participate. In the alternative the accused submits that the interviews should be excluded in the exercise of the court's discretion because it would be unfair to the accused to admit them. It is submitted that the interviews are unfair because of the nature and manner of the questioning.
5 As regards the covert conversation the accused submits that this should be excluded in the exercise of the court's discretion because the accused was tricked into participating in a conversation in the police cells and the circumstances of the conversation make his responses unreliable.
6 In order to understand the relevance of the evidence it is necessary to summarise the prosecution case.
Prosecution case
7 As of the date of the first charge the accused was the proprietor of a business which operated from a leased unit in Bayswater. It is alleged that at this time the accused was suffering significant financial difficulties. On 23 July 2012 he adjusted his business insurance policy by increasing the amount of cover for business interruption from $70,000 to $120,000. He also added cover for burglaries, moneys in transit, 'fire and other defined events', loss for stock in trade and book debts.
8 It is alleged that on 26 July 2012 the accused advertised a 2009 Felder K700 panel saw for sale on the Gumtree website for an advertised price of $16,000. The advertisement was removed from the website approximately two hours later.
9 It is alleged that at 3.23 pm on 28 July 2012 the accused telephoned police communications and reported a burglary. He told police that sometime between 6.30 pm the night before and 10.30 am that morning his business premises in Bayswater had been broken into and property stolen. He reported that the burglars who broke into the unit cut a padlock on the front door to gain entry and then broke an office door lock by unknown means. He said that one of the items stolen was a safe that had been fixed to the wall of the office. He reported that the safe contained an Olympus camera, passport, drivers licence, bank books and $15,000 in cash. He was given a police incident report number which he later used to lodge a claim with his insurance company.
10 On 30 July 2012 the accused lodged a claim with his insurance company for loss of the property reported stolen on 28 July 2012. Both in conversations and in documents submitted to the insurance company the accused indicated that he wished to claim the $15,000 in cash that he said had been stolen from his safe.
11 Enquiries by the police and by an investigator retained by the insurance company indicated that there were inconsistencies between physical evidence and the claims made by the accused. As a result, on 12 March 2013 the accused was interviewed by the police. In that interview he said that he had been paid the $15,000 cash by a man who had purchased a Felder panel saw from him on 27 July 2012. He claimed that he had previously purchased the saw and other machinery for $5,000 from a lady in Balga. He could not recall exactly where he had purchased it from. He could not identify either the woman he said he had acquired the saw from or the man he had sold it to.
12 The prosecution case is that the accused invented the story about the purchase and sale of the panel saw and then falsely reported the burglary offence in order to make a false insurance claim. These allegations relate to counts 1 and 2 of the indictment.
13 On 31 July 2012 representatives of the insurance company told the accused on a number of occasions that he would not be able to claim for the $15,000 cash that he claimed was stolen from his safe. At about 9.09 am on 4 August 2012 Fire and Emergency Services personnel responded to a fire at the accused's business premises in Bayswater. Enquiries determined that an electric powered heat gun had been placed into a box of paper in the office area of the unit directly below a container of petrol. A second heat gun was plugged into a timer and connected to a power point in another part of the unit. The second heat gun was placed among combustible material and subsequently ignited a fire. That fire prevented the first heat gun in the office area from activating. It is alleged that the accused set up the heat guns with timers the night before the fire such that they would turn on in the early hours of the following morning.
14 Following the fire the accused lodged a claim with his insurance company for business interruption, fire damage and theft of property. On 12 August 2012 he submitted a schedule of the property and other losses he was claiming to a loss adjustor who had been retained by the insurance company. The total amount claimed was $131,302.79.
15 On 2 November 2012 the accused submitted an invoice for costs associated with work allegedly done in cleaning up the unit after the fire and rendering it fit for ordinary use. The amount of the invoice was $10,125.50. The invoice had the appearance of being for work done by a business independent from the accused. The prosecution case is that in fact the accused created the invoice and submitted it to the insurance company in circumstances where he knew that none of the work referred to had been done, giving the false impression that the work had been done by a company that was unrelated to him.
16 The accused was charged with counts 1, 2 and 5 on 20 September 2013. He was charged with the arson offence, count 3, following further investigations by the police. Count 4 was included on the indictment ex officio when the indictment was filed on 26 November 2014.
The insurance interviews
17 At the directions hearing the prosecution called Ms Jennifer Caldwell. She gave evidence that she is a senior investigator employed by a company that is retained to undertake investigations for insurance companies. On 7 September 2012 she received instructions to conduct an investigation into the fire. In such circumstances it is not Ms Caldwell's role to determine whether the claim will be paid but rather to conduct a factual investigation and report back to the insurance company.
18 As part of her investigation Ms Caldwell contacted the accused and requested an interview. For that purpose she attended at his home in Yokine on 12 September 2012. She obtained the accused's written consent to participate in an interview. He also signed an acknowledgement that he had been requested to provide documentation to Ms Caldwell for the purposes of assisting with his claim. He also signed an authority to release and obtain information from third parties. The interview was audio recorded and a transcript was subsequently prepared of that interview. The accuracy of the transcript was not disputed and was relied upon on this application.
19 At the commencement of the interview on 12 September 2012 Ms Caldwell advised the accused that she represented the insurance company who had asked her to conduct some enquiries in relation to the claims that he had lodged. She identified the claims and asked the accused whether he consented to talking to her. He confirmed that he did and that he understood that the interview would be recorded. Ms Caldwell then asked:
Q. Now do you acknowledge and agree to SGIO insurance using the information that we collect today in accordance with their privacy policy to assist in this claim or any other future claims or policies?
A. Yes.
Q. Now SGIO insurance may disclose the information you give me to other parties such as other insurance companies or government agencies, do you understand and agree with that?
A. Yes.
Q. Great. Now in accordance with the Insurance Contracts Act and your obligations to act in utmost good faith, all my questions must be answered truthfully and honestly and to the best of your knowledge?
A. Yes.
Q. Failure to do that can result in them being unable to determine your claim. And further to that as well that they may refer the file on for further action if deemed necessary, do you understand that?
A. Yes.
20 Throughout the balance of the interview Ms Caldwell asked questions regarding the circumstances surrounding each of the claims. The accused did not make admissions regarding the falsity of the claims, rather he maintains their veracity. The relevance to the prosecution case is that this interview is said to show the accused pursuing his fraudulent intent by providing false information in support of his claims. This is obviously a significant factor in assessing the suggestion that the interview was not a voluntary one.
21 The accused claims that at a number of points during the interview he was placed under pressure by Ms Caldwell. He also submits that there were references to financial hardship, which is relevant to his ability to exercise a free choice as to whether to participate in the interview. The parts identified in the appellant's written submissions are as follows:
(1) The accused states that he has previously made an insurance claim in respect of a vehicle that was broken into outside his unit (par 164).
(2) The accused states that he has run out of money (par 1168).
(3) The accused states that he put an advertisement on Gumtree to rent out a brick saw because he needed some extra cash (par 1196).
(4) The accused states that he was three months behind in his rent at the time of the fire and that he was 'really short' at that time (pars 1314, 1316).
(5) The accused states that there was to be a meeting with his landlord to discuss the landlord taking tools in lieu of moneys owed (par 1381).
(6) The accused states that he owed about $10,000 on one of his vehicles and that he is not up to date with repayments (pars 1408, 1412).
(7) The accused states that his source of income at the moment is a number of small jobs for real estate agents which amounted to about $200 a week, that he was on the dole and not receiving any other financial assistance (pars 1808 - 1814).
(8) The accused states that he has a credit card with a debit balance of $6,600 (pars 1852 - 1854).
(9) The accused states that he has another vehicle financed through Esanda in respect of which he was about three months behind in repayments and that a repossession notice had issued (pars 1881 - 1884).
(10) The accused states that he had been experiencing financial hardship in the three month period prior to the fire (pars 1905 - 1906).
(11) The accused states that he had done work for which he had not been paid, including $5,500 for a patio, $1,500 for a building company and $5,000 for two real estate agents (pars 1922 - 1930).
(12) When asked what he is likely to do the accused says that it depends on what he gets back from insurance and that he then intends to pay his debts and see what position he is in. He states that he still has customers who are willing to give him business but that he does not have the working capital to keep going (pars 1940).
(13) The accused states that he probably owes $10,000 to the Tax Office for GST (par 1968).
(14) The accused states that his personal drawings on the business in the last financial year were only around $25,000 (par 1986).
(15) The accused says that he is liable for child support at $120 a month and is two months behind with those payments (pars 2001 - 2004).
22 As will be evident all of these extracts refer to the financial position of the accused. None of them involve any pressure on the part of Ms Caldwell. It was suggested to Ms Caldwell in cross-examination that questions regarding the accused's financial status were not relevant to her enquiries. She did not accept that suggestion. She said that in her experience a claimant's financial status was a relevant consideration as it may provide a motivation for making a false claim. She said that the questions that she asked the accused were standard and had been asked by her many times in her many years of experience as an insurance investigator.
23 It was not suggested to Ms Caldwell that either at this time or any subsequent time she was acting as an agent for the police. In any event, she said that her enquiries were conducted separately from those of the police and were for a different purpose.
24 On the day following the first interview the accused withdrew consent for Ms Caldwell to request information from third parties. He did this by an email in which he stated he was seeking 'legal guidance on the whole matter' and would be appointing a 'third party' to act on his behalf. Over the following two months Ms Caldwell conducted enquiries which produced information that was inconsistent with that provided by the accused in his interview. She then completed a first report on her investigation and submitted it to the insurance company.
25 On 11 March 2013 Ms Caldwell received further instructions including a request to reinterview the accused. A further interview then occurred on 29 August 2013. Again the interview was audio recorded. At the commencement of the interview Ms Caldwell told the accused that the purpose was to go through 'concerns that had been raised during the course of our investigation' and to clarify inconsistencies. He indicated consent to the interview. He was again told that the information would be used to assist in assessing the claim and that the insurance company may disclose the information to other parties. He was also again told that he had an obligation to act in the utmost good faith and to answer questions truthfully and honestly.
26 Ms Caldwell then said, 'Failure to do so could result in SGIO being unable to determine your claim'. That statement together with a number of others that I will shortly refer to, are said to constitute pressure on the part of Ms Caldwell. The pressure is said to be constituted by implicit or explicit statements to the effect that the insurance claims would be rejected unless the accused participated in the interview. The other passages referred to by the accused are as follows:
(1) At par 307 and following Ms Caldwell tells the accused that examination of the scene is not consistent with his claim that the safe was affixed to the wall. She then asks:
Q. And what's your explanation for saying it was still on the wall when we've got evidence that suggests otherwise?
A. No comment. I'm not going to argue with you so no comment. I think it's time to cancel the interview and please leave.
Q. You do realise that if you cancel the interview now your claim is going to, that's it, it's the end of it.
A. Jenny I've spent the last year worrying about the thing since fucking day one, it's ruined my life, right.
Q. Oh look, I can appreciate that.
A. Right, everything about this thing has ruined my life. I've gone to the bottom, I'm at the bottom. Six months ago I was at the bottom, I've tried to get back up, right and this just dragging on and on is not …
Q. Well this is the end of it here. So I've got these questions that need an explanation, if you don't want to continue you've got to understand that that's the end of it, the insurance company is going to close their file. We can continue on and you can …
A. Well, let's continue on, if it's, if you ask me for explanations I don't have answers for, you're not going to get them.
Q. I'm just saying, if you've got explanations then we need it, if you don't have explanations then so be it.
A. All right.
(2) At par 692 - 697 Ms Caldwell questions the accused regarding household goods that the accused claimed were stored in the unit. When asked about these items the accused says that half of them are his and half belonged to a friend named Cameron. When asked why he is claiming for property that he did not own the accused says, 'Cos I felt bad for him'. Ms Caldwell then tells the accused that he cannot claim for property that he does not own.
(3) At pars 741 - 749 Ms Caldwell notes that the accused previously advised her that he owed $10,000 on account at Bunnings. He responds by saying that it was $20,000 in all and that the final account in December was $25,000. When asked why he had underestimated the amount owed the accused said, 'Don't know'.
(4) At the conclusion of the interview (pars 877 - 886) the following exchange occurs:
Q. Have the answers you've given me have been made of your own free will?
A. Yes.
Q. Any threat, promise or inducement been held out to you to give the answers you have given me today?
A. Depends on your version of inducement.
Q. What do you mean?
A. Well as you've said, if I don't talk to you then I get, the claim automatically goes, gets rejected so.
Q. Well you had to provide an explanation in relation to the concerns.
A. Yes, so that's, so in truth that is an inducement.
Q. Any complaints about how I have spoken to you today?
A. No.
28 The State concedes that on occasion some of the questioning goes further than merely providing the accused with an opportunity to provide an explanation and becomes argumentative or contains commentary by Ms Caldwell. An example of this is at par 289 where the accused, having been told that the forensic evidence indicates that the safe was not mounted on the wall, insists that it was. Ms Caldwell then asks him whether he is going to argue with a forensic consultant. However the State submits that such questions and comments can be readily edited and do not so permeate the whole of the interview as to make it inadmissible.
The covert recording
29 On 5 September 2013 the accused was arrested and placed in the police lockup. An undercover police operative was placed in the cells with him. The operative pretended to be a person charged with fraud offences and engaged the accused in conversation. In the course of the conversation the accused said that he had been arrested for fraud which involved 'claiming too much on insurance'. When asked what the nature of his 'extra claim' was the accused said it was for repairs that he had done himself. He otherwise made no admissions of significance and specifically denied any involvement in the fire.
30 There have been some indications that the accused would admit one aspect of the fraud, that is that he falsely claimed for repair work on the basis that it had been undertaken by an independent contractor. This of course does not represent the whole of the prosecution case in respect of count 5. However, if that admission is made the evidence of the covert recording is arguably unnecessary. At this stage, however, that admission has not been made and this directions hearing must be determined on the basis that the accused will go to trial on all charges.
31 The accused submits that the covert recording is inadmissible because the conversation was initiated by an undercover police operative and without the knowledge of the accused. He was unaware that the conversation was being recorded and was tricked into talking and making admissions against his interests.
Relevant law - voluntariness
32 Admissions made out of court are not admissible in evidence unless they are made voluntarily: McDermott v The King (1948) 76 CLR 501, 511 (Dixon J). The word 'voluntary' does not mean volunteered, it means made in the exercise of a free choice to speak or be silent: R v Lee (1950) 82 CLR 133, 149. Voluntariness focuses upon the will of the accused and must be applied according to the age, background and psychological condition of the accused and the circumstances in which the confession was made. Voluntariness is not an issue to be determined by reference to a hypothetical standard. It requires a careful assessment of the effects of the actual circumstances upon the will of the particular accused: Collins v The Queen (1980) 31 ALR 257, 307 (Brennan J). Where the issue of voluntariness is raised the onus is on the prosecution to establish on the balance of probabilities that the accused's admissions were made voluntarily: Lee (144).
33 In McDermott Dixon J referred to a 'definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made'. His Honour said that an inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by a person in authority. Confessional statements not falling within the definite rule can still be excluded if it is established that they were involuntary, this is referred to as 'basal involuntariness'.
34 In Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396 consideration was given to the meaning of the phrase 'person in authority'. At [45] Gummow and Hayne JJ said that it was neither necessary nor appropriate to extend the concept of 'person in authority' beyond those persons known or believed by the confessionalist to have lawful authority to affect the course of the investigation of or prosecution for the offence in question. See also Heydon and Crennan JJ [296], [320], [323]. At [9] Gleeson CJ noted that statements are often made under weaker forms of legal compulsion, for example arising from membership of a professional association or pursuant to a contractual obligation to furnish information to another. Such statements did not fall within the definite rule, though the circumstances may be relevant in considering the broader test of 'basal voluntariness'. Basal voluntariness is concerned with whether the accused's will has been overborne such that he was not able to exercise a free choice as to whether to speak or remain silent.
35 In the present case the accused referred at the end of the second interview to being under an inducement to participate. It would seem that the inducement he was referring to was the statements made by Ms Caldwell that unless he participated his insurance claim could not proceed. There is an obvious difficulty with any suggestion that such an inducement falls within the definite rule; Ms Caldwell as an insurance investigator was not a person with lawful authority to affect the course of the police investigation or prosecution of the offences in question. There was no suggestion that at any stage she was acting as a police agent and it is clear that her questions were relevant and appropriate for the insurance investigation that she was undertaking. The only reasonable conclusion is that the accused participated in the interviews not because he was induced to do so but because it was in his interests to do so in order to pursue the insurance claims that he had made.
36 There have been a number of cases which have considered admissions made to insurance investigators. One of these is R v Frangulis [2006] NSWCCA 363, in which the owner of a building destroyed by fire was advised by his solicitor that he was required by an insurance policy to provide information to the insurance company about the circumstances of the fire. The information provided did not involve a confession of guilt but it did contain some admissions which were later used in evidence against the insured who was convicted of arson. The trial judge ruled the interview inadmissible and a prosecution appeal against that decision was upheld. Hidden J said that there was no basis for the trial judge's conclusion that to exclude the evidence would have been unfair to the accused. In Tofilau Gleeson CJ at [9] referred to this case and said:
It could hardly be denied that such admissions were voluntary, but there was, no doubt, a sense in which the insured's freedom to speak or remain silent was, or was at least perceived by the insured to be, impaired.
37 In R v Drasko [2006] VSCA 257 the appellant was convicted of making a fraudulent insurance claim in respect of a burglary that she claimed had occurred at her house. An insurance investigator conducted two interviews, the first of which was ruled admissible. The Court of Appeal held that that interview was properly admitted. At [41] Vincent JA (with whom Eames and Redlich JJA agreed) said:
It would seem to be incontrovertible that the statements were made in furtherance of the applicant's desire to secure benefits under a civil contract of insurance pursuant to arrangements into which she had voluntarily entered. The duty of disclosure under a civil contract of insurance in no way restricts the capacity of an individual to speak or remain silent under the criminal law or interfere with the manner in which the choice may be exercised. In the present matter the applicant can be taken to have been well aware that the insurance company was entitled to ascertain whether or not she was entitled to those benefits before any payment was made and her conduct on this occasion constituted, on the prosecution case, an integral part of her alleged criminal enterprise … In any event, there was nothing whatever to suggest that the will of the applicant may have been overborne or her capacity to exercise a free choice compromised in any way. Insofar as there was an inducement for the making of the statements, it was not proffered by [the investigator], but arose from the applicant's earlier and continuing desire to secure benefits under her contract of insurance. Finally, there was no indication that either the applicant or [the investigator] ever perceived him as 'a person in authority', save perhaps to the limited extent that he could have reported adversely in relation to a civil claim.
Voluntariness - findings
38 It is clear from Ms Caldwell's evidence that her responsibility was to investigate the insurance claims made by the accused. Her role was to conduct a factual investigation into the circumstances surrounding the claims and report back to the insurance company. She had no power to determine the claims; that power remained with the insurance company. Her investigations were independent of the police investigation. Her unchallenged evidence was that she had limited information in regard to the police investigation and exercised no power or influence in respect of it. Nor were any of her questions asked at the behest of the police.
39 Ms Caldwell was not 'a person in authority' as that term is used in respect of the definite rule. In any event I am not satisfied that anything said by Ms Caldwell constituted an inducement to the accused to participate. As I have noted above, his participation was in his own interests and part of his pursuit of his claims. It is evident from his responses that he understood that he was under no compulsion to participate. This is confirmed when he exercised his right not to provide information when he withdrew his consent to Ms Caldwell obtaining information from third parties shortly after the first interview.
40 As the definite rule does not apply, the accused's application must be determined on the grounds of basal voluntariness. The accused did not give evidence on the directions hearing in support of a claim that his will was overborne. In these circumstances the only evidence available is of the interviews themselves. It should be noted in this regard that each of the interviews was conducted at the accused's home by arrangement and that he formally consented to participate in each of them. Whilst I accept that he believed that his insurance claims could not proceed unless he participated, that belief did not deprive him of freedom of choice. In this respect the accused's position is similar to that of the accused in Frangulis and Drasko.
41 In oral submissions counsel for the accused placed significant emphasis on the difficult financial circumstances of the accused at the time of the interviews. This, it was said, made him particularly vulnerable and sharpened the need for the insurance claims to be resolved in his favour. I do not accept that this deprived the accused of freedom of choice. It no doubt increased his desire to participate in the interviews but it does not support a conclusion that his will was overborne. I am satisfied on the balance of probabilities that both interviews were voluntary.
Relevant law - unfairness discretion
42 If the prosecution proves that a confession was made voluntarily then it is prima facie admissible. The onus is then on the accused to establish on the balance of probabilities that there is a substantial reason why the confession should be excluded in the exercise of the court's discretion. There are three possible bases for discretionary exclusion. They are that it is unfair to the accused to admit the confession, that public policy considerations make admission unacceptable or that the prejudicial effect of the evidence outweighs its probative value: R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [51].
43 The unfairness discretion is not concerned with whether the police acted fairly or unfairly. The concern is whether it would be unfair to the accused to use his confession against him: Lee (154); Van Der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10 [26]. The prime concern is the unreliability of the confession, but it is not the only concern. There may be concern that the confession would not have been made at all if the interview had been conducted properly: Van Der Meer [20] and Swaffield [71].
Unfairness discretion - findings
44 Neither of the two interviews contains any conduct on the part of Ms Caldwell that could properly be described as 'improper pressure or threats'. Whilst the interviews are reasonably lengthy there is nothing to indicate that the accused was tired or under any other disadvantage or that his will was ground down. The fact, if it be one, that the accused was in financial difficulty shows that he had a significant incentive to participate in the interview but not that his participation was unfairly obtained. The examples of alleged pressure referred to earlier cannot reasonably support a conclusion that the interviews were unfair to the accused.
45 The second interview does have a different purpose and tone. In this interview the objective of Ms Caldwell was clearly to challenge the accused's earlier version by presenting him with information that had been gathered in the intervening months. However the interview is not merely confrontational. The accused does provide additional information when challenged. Nonetheless there are passages in this interview where Ms Caldwell makes lengthy statements regarding independent evidence and expresses doubt about answers given by the accused. At the hearing of this application the State conceded that there were passages which should properly be edited out. However this had not been discussed between the parties. I accept that edits are possible and that there remains substantial portions of the interview which are relevant and admissible. Before making a final ruling in respect of the second interview I was requested by the parties to allow them an opportunity to agree edits should it be my conclusion that that interview should not be excluded as a whole.
The covert recording - findings
46 The submissions of the accused in respect of the covert recording were brief. In essence it was that he had been subjected to a police trick and would not have spoken to the undercover operative had he known that person's true identity. There was no suggestion that there was any coercion or threats in the course of this conversation. The unfairness was said to arise entirely from the methodology used.
47 There is nothing inherently improper about the methodology used by the police. Such methodology has been accepted as being an appropriate investigative tool in some circumstances: Swaffield and Tofilau. In particular, in Swaffield subterfuge was used to engage the suspects in conversations in which admissions were made. Whether the evidence should be excluded depended upon an assessment of a range of circumstances, such as whether the police had used any illegal method or had tried to elicit a confession after the suspect had maintained a clear desire to exercise a right to silence. Those circumstances are not asserted here, all that is asserted is that the methodology was unfair as such. That argument cannot succeed. There is no basis for exercising a discretion to exclude this recording.
Conclusion
48 I am satisfied to the requisite standard that the accused's participation in the two insurance interviews was voluntary. Further, I am not satisfied that it would be appropriate to exercise any discretion to exclude those interviews. However, in respect of the second interview that ruling is subject to the parties reaching agreement in regards to edits to that interview. I am also not satisfied that it would be appropriate to exercise the discretion to exclude the recording of the covert conversation between the accused and the undercover operative in the police cells. Accordingly, the accused's application to exclude the evidence is dismissed.
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