Tofilau, Marks, Hill and Clarke v The Queen

[2007] HCATrans 081

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M144 of 2006

B e t w e e n -
LEMALUOFUIFATU ALIPAPA TOFILAU
Appellant
and
THE QUEEN
Respondent

Office of the Registry
Melbourne No M145 of 2006

B e t w e e n -
MATTHEW JOSEPH MARKS
Appellant
and
THE QUEEN
Respondent

Office of the Registry
Melbourne No M146 of 2006

B e t w e e n -
SHANE JOHN HILL
Appellant
and
THE QUEEN
Respondent

Office of the Registry
Melbourne No M147 of 2006

B e t w e e n -
MALCOLM JOSEPH THOMAS CLARKE
Appellant
and
THE QUEEN
Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 27 FEBRUARY 2007, AT 10.19 AM

__________________

MR O.P. HOLDENSON, QC: May it please the Court, I appear with my learned friend, MR L.C. CARTER, on behalf of the appellants Tofilau and Hill. (instructed by Victoria Legal Aid)

MR P.F. TEHAN, QC: May it please the Court, I appear with my learned friend, MR C.B. BOYCE, on behalf of the appellant Clarke. (instructed by Ronald V. Tait)

MR G.J. LYON, SC: May it please the Court, I appear with my learned friend, MR M.J. CROUCHER, on behalf of the appellant Marks. (instructed by Victoria Legal Aid)

MR P.A. COGHLAN, QC: May it please the Court, I appear with my learned friends, MR J.D. McARDLE, QC and MS S.B. McNICOL, on behalf of each of the respondents. (instructed by Solicitor for Public Prosecutions)

GLEESON CJ: Yes, Mr Holdenson.

MR HOLDENSON: These four appeals are concerned with the admissibility of what the Crown contended in all four trials to be confessional statements which had been made by each of the four appellants to police officers who were pretending to be criminals. More particularly, these appeals are concerned with the question of whether or not the respective trial judges were correct to determine that the so-called confessional statements were proven by the Crown to be voluntary.

At common law a number of propositions can be said to be well settled and indeed not the subject of dispute in this Court by the respondent. I make reference just quickly to the first proposition which might be said to be well settled, namely that if the Crown fails to prove on the balance of probabilities that a confessional statement is voluntary, then it is simply inadmissible. Secondly, without reciting them, the two limbs of the voluntariness rule which we have set out in each and all of the outlines of submissions.

In accordance with that which was indicated by the Court consequent upon the grants of special leave, we have divided up today the oral argument. I will deal with the first limb of the voluntariness rule, Mr Tehan will deal with the second limb of the voluntariness rule and Dr Lyon has provided an analysis of the law in other jurisdictions. In addition, we will each deal with matters which specifically relate to the cases of the individual appellants for whom we appear.

KIRBY J: Can I ask, because I am not entirely clear from the written submissions which I have read, in Pavic and Swaffield there was, I thought, a suggestion or even a holding by a majority of the Court, the joint reasons and my own, that one approaches problems of this kind through three steps: the voluntariness step, the reliability step and the discretionary step. I understand from the special leave transcript that none of the appellants is pressing the discretionary issue.

MR HOLDENSON: Correct, only voluntariness.

KIRBY J: But some of the written submissions seem to be picking up some of the issues that were dealt with in the discretionary step and bringing them back into the voluntariness step, and I would like to get very clear whether this involves at attack on Swaffield or the approach taken or an attempt to get the Court to reconsider the ambit of the third step as it was explained in Swaffield or whether or not you are trying to present an entirely new way to approach the problem that is before us.

MR HOLDENSON: No, we are not in any manner whatsoever seeking to undermine that which was decided in Swaffield and Pavic. We are not attempting in any manner whatsoever to deal with discretion. These appeals are confined to voluntariness. If I could just remind your Honour, with respect to Swaffield and Pavic in any event, none of the grounds of appeal the subject of consideration involved a consideration of voluntariness. In Pavic, for example, in which I appeared, voluntariness was never raised at the trial in the Court of Appeal of the Supreme Court of Victoria or in the High Court, that is, there was no ground of appeal based upon it.

Insofar as these appeals might be said, in the light of what your Honour, Justice Kirby has indicated, to make reference to matters which might ordinarily fall within discretion, we have set out those matters in order to lay the evidentiary foundation for some of the submissions which are being made in the context of voluntariness. When one has regard to – and I will not present a jury address at this point – the protracted and sophisticated nature of the deception, that has the effect of giving rise to what we have identified in the Tofilau and Hill questions as to the effect on voluntariness of deception, trickery and manipulation. It also has the effect of answering some of the points made against us by the respondent as to whether it was reasonable for each of these appellants to have the belief they had at the time they made the so-called confessional statements in the Crown Towers Hotel suite.

Just in final response to your Honour Justice Kirby, we are not running discretion. We do not have to, as we see it, unless this Court all of a sudden sets at nought cases such as Lee, McDermott, Cornelius and so on, which will not happen. No one sought leave to challenge any of those decisions.

KIRBY J: I do not want to press this unreasonably, but one of the questions that arose in Swaffield and Pavic was whether or not trickery by police officers or by an agent of police officers invoked a general discretion of the court to exclude the evidence on the basis that the court would not become a place for the misuse of the power of a public official such as a policeman and, therefore, that on that basis and by that type of reasoning you could get the exclusion of police trickery of a person - deprive that person effectively of the right to silence, the right to be warned, the right to have access to lawyers and so on. Now, do I understand that that is put to one side because of your abandonment of the issues of discretion?

MR HOLDENSON: Yes.

KIRBY J: And we do not have to consider the general question of whether or not by the course of deception that was undertaken by the police in this case, that that is such a course that invokes the concern of courts that that it is something that public officers should not do and that that is relevant to removing that material from the trial of a person which relies on such evidence.

MR HOLDENSON: The discretion is not being invoked in this case. We have dealt with some of those matters identified, your Honour, in the context of our reply – I think at paragraphs 5 to 8 – but they are all put by reference to voluntariness.

If I could just in a nutshell take your Honours to the first limb of the common law rule. It is conveniently set out, for example, in paragraph 19 of the Tofilau outline. This is the limb with which I will deal in the oral submissions. At common law, a confessional statement is not 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.

In the court below it was unequivocally held in favour of the appellants that inducements of a nature which fell within the terms of this limb of the common law rule had been held out to each of the appellants. For example, in the judgment below in Tofilau it is at paragraph 162 in the report, that is the authorised report, 13 VR 65. The same holding is to be found in the judgment below in Hill at paragraphs 100 through to 103 in the Hill appeal book at pages 362 to 364. In each case the primary inducement was, in short terms, “Tell us all about this case in which you are the prime suspect and the boss of the gang will then use his corrupt police contacts to halt the investigation involving you and thereby prevent you from being charged in relation to this matter.” I use the phrase “primary inducement” because that is the phrase used by his Honour Justice Osborn, the learned trial judge, in the case of Tofilau.

Again, to use the language of Justice Osborn in Tofilau, there were also the collateral inducements. First: “Upon the holding of the police investigation you can get to become a member of our gang.” That means, secondly, “You’ll get to enjoy the substantial financial rewards which membership of the gang brings.” The third collateral inducement which goes with that and is indeed consequential, “You won’t have to work hard any more to earn those substantial rewards,” and, what is more, fourthly, “You can continue to have the friends that you’ve made while working for the gang, friends such as Don and Tui and Pat and, what’s more, you’ll get that money that’s yours, your share of the proceeds of the stolen opals, which, as you well recall, you placed into the safe deposit box.”

Now, the court below went on and accepted in each of the cases that the inducements that were made had preceded the making of the confessional statements and had indeed induced the making of those statements. Now, where the appellants failed, however, was with respect to the question of whether or not the persons who had held out those inducements were persons in authority for the purposes of the rule. If I could just remind your Honours specifically with respect to one aspect of the facts of each of these cases, on the facts of each case it was inevitable that each of the appellants would reasonably regard the gang members – more precisely, the boss of the gang – to be capable of influencing the course of the respective police investigations.

I say that by way of submission for these reasons. Throughout the course of the scenarios the appellants were each told on many occasions of the fact that the gang had connections with corrupt police officers and the appellants were also told that it was in that way that the boss of the gang could have jobs done by those corrupt police officers, including the bringing to an end or the halting of police investigations. What is more, all of that was corroborated in the sense that through the course of the scenarios the appellants came to meet and deal with a corrupt police officer who did jobs for the gang in that way.

I have made reference to the facts in that way in order to, if I can, set at nought at this point the submission made by the respondent in their outline of submissions in Tofilau at paragraph 6.7. In paragraph 6.7 the respondents say that:

These men could not have been reasonably seen by the Appellant to have been capable of influencing the course of the police investigation into the death of Belinda Romeo –

the subject of the murder count in the case of Tofilau –

and could not reasonably be seen to be acting lawfully.

I will come to the lawful aspect in just a moment.

The question that arises is how did the boss of the gang get the police to fix things? In the outline of submissions in Hill in paragraph 15, we have set out the evidentiary foundation for that and it was – I think it is set out in paragraph (h) – about the way in which he achieved the fixing of things with the corrupt police officers was to pay extra money, to pay money to these corrupt police officers. That was made clear to Tofilau in scenario No 6, the stolen opals scenario, part 2. I caused to be left out of the Tofilau appeal book the scenario sheets but they have been provided elsewhere, as I understand it, to the Court. In any event, your Honours will see scenario 6 has been provided to the Court and if your Honours turn to the third page of that document, this is referable to the scenario conducted on 1 February 2002, in the fourth paragraph ‑ ‑ ‑

KIRBY J: Can I just tell you, we have four appeals before us. The facts have very many common features but it is quite difficult, at least for me, to keep the four detailed facts in my brain, so that if you have to explain how scenario 6 - where was scenario 1, 2, 3, 4 and 5? Do not assume that I have absorbed all the facts. Rushing on and assuming that the Court knows everything in all of these appeal books is quite unsafe.

MR HOLDENSON: In the outline of submissions in Tofilau on page 18 we have set out the chronology of the scenarios which were conducted. As your Honours can see from the head of page 18, the scenarios were conducted through the period 21 November 2001 through to 17 March 2002. Partway down that page your Honours will see the date, “31 January, 2002 – 1 February, 2002 Scenario 6 – ‘Stolen Opals’”. Scenario 6 was actually conducted in two parts, part 1 and part 2, and what has been handed to your Honours is the scenario sheet referable to part 2 of that scenario. If I could take your Honours to the last page headed “Outcome”, in the fourth page reference is made – and this is the report which was prepared by the covert operative in this case, Pat Austinn, paragraph 4:

He –

that is Tofilau –

stated that he had no objections to being checked out by Mr Big . . .
Target –

that is Tofilau –

stated that he was aware that Pat’s boss ‑

that is covert operative, Pat Austinn’s boss –

could fix anything. CO told the target a story about Don making a mistake and how the Boss had paid the police off to fix it.
Traditionally, this limb of the common law rule was invoked in the situation where a police officer said to a suspect, “Tell me all about this matter and I’ll get the judge to give you bail”, or “Tell me all about this matter and I will not pursue your co-offenders, for example, your wife or your son”, or “I will not charge you with some of the offences which you have committed”. Those two, I will call them, traditional fact situations are indeed the facts the subject of the two cases cited in the Tofilau outline at paragraph 40.1 – I will not take your Honours to the cases – the two cases being Hurst (1958) VR 396, and Bosman (1988) 50 SASR 365.

If I could just pause for a moment to analyse those so-called traditional cases because that will lay the foundation for our submissions with respect to the Canadian case of Grandinetti and how it is, in our submission, that the Supreme Court of Canada wrongly decided Grandinetti and it will also enable us to respond quickly and efficiently to some of the submissions made against us by the respondents.

KIRBY J: By the way, with the stolen opals, scenario 6, do I assume that the jewellery store was in on the scenario and co‑operated with police?

MR HOLDENSON: There was no store, they were stolen from a warehouse which was, I believe, a police warehouse or, if not, a warehouse where the owners were co‑operating with the police. There was no real active theft.

KIRBY J: They were put in a deposit box, is that correct?

MR HOLDENSON: The fruits of the sale of the stolen opals, which would clearly be handling stolen goods except they were not stolen, and no police – it was only police officers involved in the sale and the subsequent purchase – the fruits were put in a real safe deposit box in a real bank.

KIRBY J: That was under the control of police?

MR HOLDENSON: Under the control of police at all times. In the bail example, the traditional example, the police officer makes out that he is close to the judge and that the judge will accede to his request. The nature of the representation there being made by the police officer in that so-called traditional example is to the effect that he or she, the police officer, will attempt to pervert the course of justice. In such a case on those facts, the Crown, in our submission, could never prove the resultant confessional statements to be voluntary.

The law did not require trial judges to reason in the manner suggested by the respondent. Again, in that paragraph 6.7 of the respondent’s outline in Tofilau where it says:

These men could not have been reasonably seen by the Appellant to have been capable of influencing the course of the police investigation . . . and could not reasonably be seen to be acting lawfully.

There was in the so-called traditional cases no requirement that the content of the inducement was to the effect that the promise would be a lawful promise and involve acting lawfully.

KIRBY J: On the contrary, to offer an inducement that would be deflecting a police officer from performing the duties of a police officer in accordance with law would be unlawful, one would think.

MR HOLDENSON: Yes. The point articulated by your Honour Justice Kirby is even more clear with the other example I identified, the “I will not pursue your co‑offenders” example which was the facts of Hurst. The Crown in those cases failed to prove voluntariness, notwithstanding the fact that the police officer was thereby thwarting the interests of the State, the interests of the State being offenders get prosecuted, and indeed partly sabotaging or steering the investigation away from a defender. “I will not charge your wife, who has clearly committed the offences, if you tell us all about it” is to the effect of steering the investigation away from an offender.

Those submissions referable to the traditional examples are clearly, in our submission, consistent with the High Court authorities which have considered this limb of the voluntariness rule. I make reference to McDermott and so on. Those cases merely speak of the hope of advantage or fear of prejudice being held out. Those cases do not confine the inducements to be offers which only involve the lawful conduct of the offeror, the holder‑outer of the inducement. Those cases did not exclude inducements which suggested or involved corrupt conduct by officials, whether it be police officers or judges, who are bribed to give bail.

When one has regard, for example, to the cases which we have cited in our outlines those cases, the correctness of which are not the subject of challenge, are to the same effect. In Scofield (1988) 37 A Crim R 197, the threat or promise made by the wife probably amounted to contempt of the Family Court. I was not going to take the Court to any passages in the judgment. In Middleton (1975) QB 191, the threat by the police officer to keep the woman in custody and have her children placed into care not only amounted to a threat to engage in conduct contrary to statute but probably also involved tortious and criminal conduct. In Hartz and Power [1967] 1 AC 760 the threat was to act contrary to the authority or power conferred by statute upon the bureaucrat.

All of that has to be right, in our submission, when on occasions it is recalled that the inducement in the nature of a threat was, “If you don’t tell us all about it, I’ll bash you up”, clearly a threat to engage in unlawful conduct and assault. The point upon which each ‑ ‑ ‑

KIRBY J: You are throwing all these cases at us but what in your submission is the principle? On one view the principle is that if you have a uniform and you promise someone that you will give them a favour, that is a misuse of your office, but it cloaks the promise with the likelihood it is going to be delivered.

MR HOLDENSON: The principle is this, your Honour. The proposition for which each and all of those cases is authority is whether the suspect supposed that the person holding out the inducement had some capacity to influence the conduct of an official and thereby carry into effect the inducement. Each of those cases involved the holding out of an inducement whereby the recipient of the inducement would believe that the person holding out the inducement had some capacity to influence the conduct of an official.

HAYNE J: Now, I understand that you characterise that result, as have the cases, as being that the confession is not voluntary, but what is the rule doing?

MR HOLDENSON: The rule is ensuring three things, and this is the point made by his Honour Mr Justice Wood in R v Dixon and Smith (1992) 28 NSWLR 215and perhaps if I answer your Honour Justice Hayne’s question by reference to a passage in the judgment of Mr Justice Wood. At 221E - that is, partway through that paragraph - what the rule does is ensure three things. The three things are there set out at 221E as the justifications:

The rule has been justified by reference to various principles, including the reliability principle, under which such confessions are excluded because the method by which they were obtained suggest that they may be unreliable -

Just pausing there and interrupting my reading of that passage, the rule ensures that unreliable confessions are not placed before tribunals of fact. It goes on:

the disciplinary principle under which exclusion rests on the need to prevent police and other investigators using improper means to procure confessions -

So what does the rule do? The rule ensures that police officers do not use improper means. That is perhaps an answer to the point raised by your Honour Justice Kirby shortly after the matter was called on with respect to how it is we deal with the improper conduct in this case.

HAYNE J: Well, “improper” is a good word, Mr Holdenson, but it is a word that needs explanation. “Improper means” is the very question that is at issue here. Now, I understand the appellants would characterise what has been done here as the use of improper means. But that is the conclusion, not the path by which you get there. Yes, I read what Justice Wood says; unreliability, discipline, protection. Yes, you can find all three of those in the cases, but I am far from certain that you can find whether all three representing a unifying principle, one representing a unifying principle, or simply that if you trawl through the cases you will find reference to all three. Now, at some point where we are going, are we not, from circumstances which have been considered by the courts to the present circumstances which thus far have not, we have to understand the path by which we are proceeding. Now, passages from cases are important. I understand that, but at some point you are going to have to state a principle.

MR HOLDENSON: I will get to that, I trust, if I might in a few minutes but while dealing with the judgement of his Honour Justice Wood what he did at 229 – and I have moved on from 221 to 229 – at 229F, having reviewed the cases and the textbooks, he dealt with matters, in effect, as I did in identifying the principle upon which all of those cases turned. At 229F he says:

As a matter of principle, it seems to me proper to have regard to the impression conveyed by the person offering the inducement. There is support for this in the authorities reviewed and it reflects the purpose behind both the common law and s 410, to exclude confessions obtained under influence, or as the result of threat or offer of favour. Unless the inducement comes from a person supposed by the accused to have some capacity to carry it into effect, it would be unlikely to elicit a confession that would otherwise be withheld.

It is the passage at 221 coupled with that passage which led his Honour to express or formulate the test as to who falls within the scope of this phrase “person in authority”. It is easy in the case of Hurst and Bosman because it was a uniformed police officer holding out the representation. Justice Wood at 229F to G said:

I would accordingly hold that a person in authority includes any person concerned in the arrest, detention or examination of the accused, or who has an interest in respect of the offence, or who otherwise is seen by the accused by virtue of his position, as capable of influencing the course of the prosecution, or the manner in which he is treated in respect of it.

His Honour Mr Justice Hunt reached the same conclusion and formulated the same test, albeit with the commas in a different place, at 217D.

GLEESON CJ: Does “by virtue of his position” mean by virtue of his official position?

MR HOLDENSON: In our submission, no. The position can be referable to a position of influence and an engager of corrupt police officers. The point articulated by your Honour the Chief Justice is perhaps really the point upon which these cases turned in the court below - and I was going to get to that in just a few moments – official, lawful, lawful office, authority conferred, lawful authority, that sort of language is used in the judgment below.

In the light of the statements on the facts here, just putting – and I will get to the point in a moment raised by your Honour the Chief Justice. In the light of the statements repeatedly made to these appellants that the boss of the gang could fix things and halt police investigations, clearly, in our submission, Pat Austinn and Mark Butcher, the two covert police officers in the case of Tofilau were seen by Tofilau by virtue of the position they occupied as being very capable of influencing the course of the police investigations.

KIRBY J: But not as “people in authority”. On the contrary, they were fellow criminals and so they were presenting themselves. They were not, as it were, able to influence things because they were people in authority. Is that the mischief that the rule is directed at?

MR HOLDENSON: In our submission, when regard is had to those justifications to which I took the Court at 221, the point raised by your Honour Justice Kirby, and I will deal with it briefly, if I might, the point raised first by your Honour the Chief Justice, is not material at least in circumstances where the covert police officers are actually police officers.

KIRBY J: Yes, but the Canadian Supreme Court seems to have thought that was the criterion and I think every court that has looked at this in the common law world has taken that view, though it is true the formula that Justice Wood used would be wide enough to embrace other people, so, as Justice Hayne has said to you, that takes you back beyond the cases. When you sit here the cases are useful but you have to go to the fundamental principles. After all, here we have four very serious crimes, unsolved, and then the police used deception to get your clients to make confessions of those crimes and thereby solve very serious crimes and the question you have to then ask is, is that such a bad thing seeing that no threats were used, that they brought themselves into this deception for their own advantage and made statements which are then used against them? It is a big ask where they confess to very serious crimes to ask courts to exclude it.

MR HOLDENSON: Can I deal with the formulation of the test. I have taken your Honours to Dixon and Smith. Before I get to Grandinetti and make submissions with respect to the reasoning underlying Grandinetti, can I first take your Honours to another formulation of the test. That is to be found in the decision of the Queensland Court of Appeal in R v Kassulke, [2004] QCA 175, where the learned presiding justice, Justice Davies, in considering the application of a statutory provision in Queensland, in paragraph [18] commenced his analysis of the test. In paragraph [18] he made reference to the judgment of Sir Owen Dixon in McDermott which reads:

When Sir Owen Dixon defined the expression “person in authority” as including officers of police and the like, the prosecutor, and others concerned in preferring the charge, it seems to me that he intended to limit that expression to those persons exercising or purporting to exercise the authority of the State in the investigation or prosecution of a charge of a criminal offence.

Moving on to paragraph [19], second line:

is a purely objective exercise. However there is authoritative support for the view that that definition should be limited further by excluding from it a person who is within the prima facie objective definition but whom the accused could not have reasonably perceived was a person in authority.

And that might be where your Honour Justice Kirby has taken me to, but I then take your Honour to paragraph [20] in that same judgment of his Honour, Justice Davies which reads:

There is also authoritative support for the view that the above definition should be expanded, by the notion of the reasonable perception of the accused, to include any person whom the accused reasonably believed was a person who had some power to control or influence the proceedings against him. On this view it would not matter whether the person in question was, objectively, a person in authority within Sir Owen’s definition.

In our case these men, these covert operatives, Pat Austinn and Mark Butcher, were police officers. They do not get excluded by reference to the objective exercise set out within paragraph [19] and if there is any doubt, which in our submission there is not, they get included by reference to paragraph [20] and there is no suggestion in paragraph [20] that the words “power to control or influence” is referable to the exercise of lawful power or lawful authority.

HAYNE J: If the concern is reliability, as seems to be underlying [20], why does that lead to an absolute rule? We are in the realm of discourse where we are dealing with an absolute rule.

MR HOLDENSON: The absolute rule is, in our submission, by reference to those authorities which we have set out in Basto, a decision of this Court, and I am just looking for the relevant paragraph in the ‑ ‑ ‑

HAYNE J: I am trying to engage you in a discussion of principle, not a discussion about the cases, Mr Holdenson. Let me be quite blunt about it. It seems to me on the authorities as they stand your case has difficulties. If you wish to develop the point, it seems to me that the point has to be developed at the level of principle.

MR HOLDENSON: As to reliability, the cases hold - and, in our submission, correctly - that reliability is irrelevant. Why? Because it is the risk that the content of that which is said in those circumstances excited in that manner is unreliable. It is the risk of unreliability which gives rise to the automatic exclusion, so if there is a threat or promise held out by a person in authority, assuming we fit within “person in authority”, likely therefore to have excited the response, the so-called confessional statement, it is that risk which has led to and, in our submission, it is the correct principle to be applied for these statements to go out. No further inquiry required and, indeed ‑ ‑ ‑

KIRBY J: Surely on of the reasons that the common law excluded the involuntary confessions was, going back to the old times, that if you put a person on the rack and you started applying the pressure and they then screamed out something, the possibility was that often it would be unreliable and sometimes it would not be fully reliable. There would be an element of unreliability but not total, so reliability is another consideration. It cannot be an absolute reason for excluding, yet involuntary confessions have been put into a category where it says if it is involuntary, it does not get in.

MR HOLDENSON: Although no one in this case was subjected to torture or the risk of torture or being placed on the rack, nevertheless each of the persons at the time they were in the hotel room knew well and truly - had come to understand by reason of that sophisticated and comprehensive course of persuasion – that if they did not talk about the matter, then they would be charged and they would go to gaol because they would be convicted and they would lose the friends and the money and the job, carrot and stick. Indeed, in these cases there was to some extent – and Dr Lyon makes reference to it, as I recall – some sort of tag team approach between the real police officers and the covert police officers, called somewhere in one of these cases the pincer movement, where they come together on the day before or the day of the Crown Towers Hotel suite interviews. There was, in the case of Tofilau, the placing under his door by the homicide squad with the homicide squad police officer’s name on it the application for the DNA sample, an order for a DNA sample, from the court. That is called the prop in these scenarios. That prompted real anxiety. The police were there, the police were about to charge, “We can bring all this to an end, it is easy, we can fix it, you know we’ve got police officers that work for us, we’ve done this before, you’ve met them, you’ve seen how it happens, just tell me what occurred and I’ll make it all go away.” Not quite the same as the rack but, in our submission, the same consequence from the point of view, from the perception, of the individual appellants the subject of these cases.

Perhaps at this point I ought take your Honours, given the questions that have been asked, to the decision of the Supreme Court of Canada in Grandinetti [2005] 1 SCR 27. If I could just spent a few moments taking your Honours through this decision, in the judgment of Justice Abella who delivered the judgment of the court, your Honours can see from paragraph 10 that the facts are almost on all fours with the facts of these cases. In paragraph 10 it reads:

To further encourage Mr Grandinetti to talk about Connie Grandinetti’s murder, the undercover officers suggested to him that they could use their corrupt police contacts to steer the Connie Grandinetti murder investigation away from him. When he continued to balk at talking about the murder, they told him that he might be a liability to their organization because of the ongoing murder investigation. They forcefully suggested he “come clean” with them to protect the organization from possible police interference.

Not far removed from this case. Now, the defence position in these cases is set out in paragraph 13, the first few lines:

The defence position at trial was that the undercover officers were “persons in authority” because Mr Grandinetti believed they could influence the investigation into the murder of his aunt through the corrupt police officers they claimed to know.

Going to the end of that paragraph 13, the last few lines:

The Crown, on the other hand, argued that the undercover officers could not be persons in authority because the accused must believe that the recipient of a confession can influence the investigation or prosecution by aiding, not thwarting, the state’s interests.

As to the ruling of the learned trial judge, it is set out at the conclusion of paragraph 15, at the very end of 15:

In her view –

that is the learned trial judge -

the undercover officers could not be considered persons in authority because Mr Grandinetti viewed them not as acting for or in collaboration with the interests of the state but rather against those interests.

The issue on appeal to the Canadian Supreme Court is set out in paragraph 34. If I could just take your Honours to the end of that paragraph, the point the subject of submission in the Supreme Court was narrower than ours in this Court. At the end of paragraph 34:

The issue argued on this appeal by the appellant was whether the impugned statements were made to a “person in authority” within the meaning of Hodgson, and not whether they were free and voluntary within the meaning of Oickle.

Mr Tehan, as I have already indicated, and as your Honours will appreciate from the outlines, will be dealing with “free and voluntary.” I will not trouble your Honours with paragraph 37 which sets out the steps to be engaged or adopted or pursued when a point like this is argued at trial. At 38 in the judgment is the formulation of the test or the first part of the formulation of the test. There is a subjective test and that is paragraph 38:

The test of who is a “person in authority” is largely subjective, focusing on the accused’s perception of the person to whom he or she is making the statement. The operative question is whether the accused, based on his or her perception of the recipient’s ability to influence the prosecution, believed either that refusing to make a statement to the person would result in prejudice, or that making one would result in favourable treatment.

Just pausing there, in our submission, we clearly satisfy that subjective component of the test as formulated in paragraph 38. But there is more. There is an objective test or an objective element to the test. That is paragraph 39:

There is also an objective element, namely, the reasonableness of the accused’s belief that he or she is speaking to a person in authority. It is not enough, however, that an accused reasonably believe that a person can influence the course of the investigation or prosecution. As the trial judge correctly concluded -

Then if I can take your Honours to the last part of the quote. The last part is really the objective test:

It does not include someone who seeks to sabotage the investigation or steer the investigation away from a suspect that the state is investigating.

Now, just pausing there, that is the objective component of the test and, in our submission, that passage there is contrary to all the cases in Australia in respect of which there is no restriction as to the nature of the inducement and that passage is contrary to the so-called traditional example, the case of Hurst (1958) VR. “You talk to me and I will not charge your co-offender, wife or son.” That is steering the investigation away from a suspect. That passage, therefore, in our submission, is contrary to that which is trite in this country.

Paragraphs 40 and 41 deal with the situation of undercover police officers and it is accepted in paragraph 41 by the appellant, Grandinetti, that undercover officers are usually not persons in authority. They nevertheless submitted in that case that:

when an undercover operation includes as part of its ruse a suggested association with corrupt police, who the accused is told could influence the investigation and prosecution of the offence, the officers qualify as persons in authority.

That is dealt with in a lengthy way in paragraph 43 by reference to the indented passage, the quote from Hodgson. If I could take your Honours to the first part of the indented passage:

Since the person in authority requirement is aimed at controlling coercive state conduct, the test for a person in authority should not include those whom the accused unreasonably believes to be acting on behalf of the state.

That is dealt with further at the end of that quote further down where your Honours can see as the very end of the quote immediately above the next paragraph, last few lines:

That is to say, the trial judge must determine whether the accused reasonably believed the receiver of the statement was acting on behalf of the police or prosecuting authorities.

So the objective component in Canada in the Supreme Court becomes whether or not the trial judge can make a finding with respect to the belief of the suspect, then accused, as to whether the person to whom he or she spoke was acting on behalf of the police. That is put in paragraph 44 as:

The appellant believed that the undercover officers were criminals, not police officers, albeit criminals with corrupt police contacts who could potentially influence the investigation against him.

Well, that is our facts.

When, as in this case, the accused confesses to an undercover officer he thinks can influence his murder investigation by enlisting corrupt police officers, the state’s coercive power is not engaged. The statements, therefore, were not made to a person in authority.

GLEESON CJ: Mr Holdenson, an obvious question that we have to ask ourselves is why this exclusionary rule is limited to threats or inducements by persons in authority. Why does it not cover threats or inducements by anybody?

MR HOLDENSON: Yes.

GLEESON CJ: Do you accept the Supreme Court of Canada’s proposition that the answer to that question is that this particular rule is aimed at controlling coercive state conduct?

MR HOLDENSON: If that be – the expression “coercive state conduct” is there confined to State conduct which furthers the purpose of the State and in circumstances where the representations are to the effect that “We will get a corrupt police officer to halt the investigations, stop the investigation”. That is in Canada said not to involve coercive State conduct. We disagree with that.

Could I make two submissions with respect to the conclusion reached in Canada with respect to the objective test. It involves, in our submission, a misconstruction of what was called, in the judgment of Mr Justice Wood in Dixon and Smith and in the High Court authorities referred to in our outline, a misconstruction of the disciplinary principle and it in fact is at odds with the other principles or justifications for this rule, the reliability principle and the protective principle.

No regard is had in any of that formulation of the two components of the test to the risk of unreliability. No regard is had there to the protection of a person from coercive conduct – and I am using “coercive” in a different sense from paragraph 44 – of agents of the State.

In our submission, the correct approach is that formulated in the judgment of the dissenting justice in the court below, the Supreme Court of Canada in Grandinetti. That was the Alberta Court of Appeal where her Honour Justice Conrad dissented and it is our submission that the approach she adopted, albeit in dissent, is one which is entirely in accordance with the law in this country, Australia, and indeed identifies what, in our submission, are the flaws in the reasoning of the Supreme Court. The decision of the Alberta Court of Appeal is Grandinetti (2003) 178 CCC (3d) 449 at paragraph [113] and, in our submission, by reference to the passages in her judgment, we answer some of the points made by your Honours in discussion. Paragraph [113] in the judgment of her Honour Justice Conrad at page 485:

With the greatest respect to the learned trial judge, in my view she interpreted the meaning of “person in authority” too narrowly. The trial judge should have determined whether the accused believed that the recipient could influence the prosecution and whether that belief was reasonable. This test does not require that the maker of a statement believe that any prosecutorial inducement be for the good of the state.

And that, with respect, is how we understand that phrase “coercive power of the state” in the Supreme Court.

A maker of a statement must merely have a subjective belief, reasonably held, that the person to whom he is talking has a sufficient connection with the prosecution to affect the prosecution. The law does not require that an accused also make a qualitative analysis of whether any promise or inducement furthers the objects of the state. If it is a further qualification that, in fact, an actual relationship exists between the recipient and the prosecuting authorities, that fact is met here. The police are the recipients of the information.

That is our case too.

[114] I am satisfied it was possible here to conclude that the undercover operators were persons in authority. They were police officers. The defence introduced some evidence to show a reasonable perception by the appellant that Mac, and the other undercover operators who were in receipt of his statements, were sufficiently connected to the forces investigating his aunt’s murder to influence or control the investigation. Here the appellant testified –

Paragraph [117] is how we sought to put our argument partly in response to a question raised by your Honour Justice Hayne. Paragraph[117] at the head of 487:

I find support for this conclusion in the very policy behind the voluntariness rule, namely, that of ensuring fairness in the criminal process. The confessions rule serves to discourage police officers from engaging in –

the word is not “improper” this time –

undesirable investigative techniques. A police officer cannot promise a prosecutorial favour in return for a statement. To allow an undercover operation to rely on its relationship with the police to obtain a statement would be to allow the police to do indirectly that which it cannot do directly.

Within paragraph [118], about five lines down:

But where an undercover operation includes, as part of its ruse, an association with the police, and the suggested ability to influence the investigation and prosecution of the offence, it loses its protection from the confessions rule. Put another way, if undercover officers pretend to associate themselves with the police in such a way as to make it reasonable for an accused to believe that they can influence the prosecution, and an accused actually believes them, the officers can be persons in authority.

Down to paragraph [120], partway through the paragraph:

At the same time, however, they wish to make use of the implied power and authority of the state to assist them in inducing the appellant to confess. The object of the confessions rule is to ensure that statements extracted by the police are reliable and that they have not been coerced by inappropriate state conduct.

KIRBY J: They do not really pretend to have control of the State conduct. They pretend to have control over corrupt people who will act against the State’s control. When her Ladyship tries to explain why she thinks that it falls within the general policy of the voluntariness rule, it really just comes down to a view on her part, which was a minority view, the whole of the Supreme Court of Canada coming to the other conclusion, that it was not fair. Fairness is really a very malleable concept. It is not a very stable principle.

MR HOLDENSON: In our submission, her judgment ought not be construed as one referable to notions of fairness. Paragraph [117] makes reference to the disciplinary principle and paragraphs [117] and [120] make reference to reliability of that which has been said, referable therefore to at least two of the justifications, if not three, for the rule as identified conveniently and succinctly by Mr Justice Wood in his judgment in Dixon and Smith.

KIRBY J: Justice Conrad seems to be concerned about the fact that the police are thereby allowed to do indirectly what they cannot do directly.

MR HOLDENSON: Yes.

KIRBY J: That was a matter that concerned me in the case of Pavic that by the procedures that were adopted these people who were indubitably police officers when into an engagement with the accused in a way that they could not do if they did it directly; they would have to give warnings at a certain stage and they would have to alert them to the right to see a lawyer and so on. In Pavic those matters were consigned to the end but Justice Conrad seems to bring them up as relevant to the voluntariness question.

MR HOLDENSON: Can I respond to that in this way by reference to an example which is only a slight manipulation of the facts in this case. Had Butcher and Austinn said to Tofilau, “As you know, we’re members of a gang and as you know there are corrupt police officers who work for us. In fact, you’ve met one of them - Corey. Corey has just telephoned us and said to us, ‘Get Tofilau to provide full details about the death of Ms Romeo and upon Tofilau doing that I, Corey, will halt the police investigation into Tofilau’.”

That is only a slight manipulation of the facts in this case. In such a case, through the agency of Butcher and Austinn an undoubted person in authority, Corey, who is and was in actual fact a police officer, albeit pretending to be a corrupt one, is the source of the inducement. It is held out to Tofilau through the agency of Austinn and Butcher, inducement, held out by a person in authority, resulting confessional statement. In our submission, on the authorities, the Crown would fail to prove voluntariness. In that factual situation each of the justifications, in our submission, play the very same role and had the very same import as in the true facts.

The facts could be manipulated again, ever so slightly. Had Corey himself – keeping in mind Tofilau had met him – held out the inducement to Tofilau and said, “Well, you know I’m a police officer and what I want you to do is tell Pat Austinn and Mark Butcher all about this so that it can be fixed up by me”, clearly, the inducement held out by a person in authority, the application of the law would be clear, the Crown would fail to prove voluntariness.

KIRBY J: I suppose one could say that it is voluntary because he is talking to people who he thinks are his friends and mates who are going to help him, whereas the offensiveness about a policeman doing it is that that is an ostensible agent of the State acting in a way that is seductive to a person because of the fact that he is cloaked with the authority of the State, something that was not present in this case.

MR HOLDENSON: Your Honour moves on to cloaking with authority. I will deal with that.

KIRBY J: I am trying to get at what is at the heart of the principle that excludes confessions to a person in authority under an inducement. What is at the heart of it?

MR HOLDENSON: When your Honour makes reference to the cloaking of the inducement with the authority of the State, that is almost this case because in this case those who held out the inducement, Austinn and Butcher, actually relied upon the authority of the State in their formulation and expression of the primary inducement, “You tell us, we’ll fix it.” That is making reference to the authority of the State. They corroborate the effect of all of that by actually introducing these appellants to the corrupt police officers and so the appellants actually see the authority of the State at work.

When one goes back to the traditional cases there is no restriction that the authority of a State has to be – and this gets back to the exercise of coercive State power from the decision of the Supreme Court in Canada. That is not how the Australian cases have worked. In that example I made up a moment ago which was if Corey had said it and he said, “Tell Austinn and Butcher and I’ll fix it” it is illogical that it leads to a result where when the engagers of Corey, that is, Butcher and Austinn, themselves hold out the very same inducement that the confession is not likewise ruled to be involuntary.

When one analyses the facts in those ways, from the perspective of the confessionalist there is no difference and when one analyses it from the view of the State, again it is agents of the State that are holding out the inducements. Again, no difference, save and except someone has thought up these scenarios and the way they work whereby at least the Supreme Court of Canada and the court below finds a way around the justifications and the rule. That is why in answer to the question raised by your Honour Justice Hayne quite some time ago I submitted that the point upon which all of these cases turn is whether or not the suspects suppose that the person holding out the inducement had some capacity to influence the conduct of an official.

Your Honour the Chief Justice raised the question, “Well, does it have to be referable to lawful conduct and lawful position?” That is effectively how this was dealt with by the court below, and perhaps I ought take your Honours to the passages in the judgment of the court below in Tofilau.

GLEESON CJ: I was really only asking what Justice Wood meant when in the passage that you rely on from his judgment he referred to somebody doing something by virtue of his position. It is clear enough what he meant in the facts of the particular case before him.

MR HOLDENSON: Yes. In the court below that sort of passage has been narrowed. If I could take your Honours to the judgment of the court below in Tofilau 13 VR at paragraph 167 at page 67 at the head of the page in the judgment of his Honour Justice Vincent, it reads:

Be that as it may, I am aware of no case in which a person who did not appear to be cloaked with some legally conferred or held power or right, but claimed only the power of a criminal to breach the law and defy lawful authority, has been regarded as a person in authority.

Down to paragraph 170 on the same page:

Whatever may be the limits with respect to who is categorised as a person in authority, it appears to me to be fundamental to the ambit of operation of the inducement principle that the offeror of the inducement, viewed from the perspective of the confessionalist, possesses, by reason of some lawfully held or conferred status or relationship with the maker of the statement, the capacity to influence “the course of the prosecution –

And so the court below clearly answered that question raised by your Honour the Chief Justice and confined the position to not cover our situation in these cases ‑ ‑ ‑

KIRBY J: What is wrong with that as a matter of legal principle?

MR HOLDENSON: As a matter of legal principle it disregards and wholly disregards the justifications for this limb of the voluntariness rule, and I go back to the three as articulated succinctly by Mr Justice Wood. That formulation gives no work to do the reliability principle because our situation, in our submission, is materially indistinguishable. Whether one looks at it from the point of view of the suspect or from the point of view of the Chief Police Officer, same consequence, same effect, same risks as to unreliability and so on. That is illustrated when one manipulates the facts just that slight bit and says, “Well, if Corey had done it” – or if Butcher had said, “Corey wants us to get you to tell us,” the person in authority is the disclosed principal; Austinn and Butcher are disclosed agents. It also ‑ ‑ ‑

KIRBY J: I have to tell you that the matter that concerns me is that it has police officers who are officers of the State going ahead to talk to people in the hope of getting them to make confessions without giving them the warnings or the advice that they may see lawyers, without having the confessions recorded, without all the other paraphernalia that normally attaches to police officers, but these are public policy questions which are not, as I presently understand, involved in the voluntariness rule but a subsequent, as it were, general rule which you have not argued in this Court and is not in your grounds of appeal.

MR HOLDENSON: That is right, it is not there. It is not there, the discretionary point. Your Honours ‑ ‑ ‑

KIRBY J: I am going to deal with this on the basis of the matter you argue. I am not going to go into other questions which may or may not be raised by the case.

MR HOLDENSON: I understand that, yes. Dealing with the question as to principle, as to why it is that those two passages in the judgment below upon which the case turns, as to why it is that is erroneous as a matter of principle, and this was the point made by her Honour Justice Conrad in her dissenting judgment in Grandinetti in the Court of Appeal, was that‑ ‑ ‑

KIRBY J: Did the Supreme Court refer to Justice Conrad’s reasons of policy? Did Justice Abella mention ‑ ‑ ‑

MR HOLDENSON: I am just looking at the judgment of the Supreme Court now in order to answer that question. Reference is made to it, as I recall, in paragraph [41]. There is encapsulated the point made by her Honour Justice Conrad but there is no specific analysis or elaboration of those passages in her judgment to which I took the Court with respect to that point of “person in authority”.

KIRBY J: Well, pretty obviously Justice Abella and the whole of the Supreme Court of Canada accepted the principle that attracted the majority in the Court of Appeal of Alberta which, in turn, is the principle that Justice Vincent has embraced in the court below.

MR HOLDENSON: It is effectively the point embraced by Justice Vincent in those passages to which I just took the Court at page 67 of the authorised report and the ‑ ‑ ‑

KIRBY J: You see, we are not bound by any of these cases and if we are to reach a different view, you really have to reach, as Justice Hayne said, to something deeper than just what the words of other judges are. You have to say this is a fundamental matter of principle or legal policy.

MR HOLDENSON: I have attempted, perhaps not very well, to say that by reference to the rationale of the rule equally applicable on the facts of these cases. I have attempted to put it by reference to authority - Dixon and Smith, we satisfy the test formulated there. I understand the Court is not bound by it. We satisfy the test formulated by Justice Davies or as set out ‑ ‑ ‑

KIRBY J: Back to the cases.

MR HOLDENSON: Those cases are referable to the rationale or justifications for the rule and the cases that support us make reference to and rely upon how it is that where reliance in the making and holding out of the inducements is placed upon the authority of the State, as was the case here, where the authority of the State is thereby invoked, that is enough.

GLEESON CJ: Why does the rule not cover threats or inducements by anybody?

MR HOLDENSON: Well, that is a point that has been raised in a number of cases in England and it was said in those cases ‑ Deokinanan is one which comes to mind where the question was raised. It said it is all too late to alter the common law now, but it may well be – and it was dealt with by the English Law Revision Committee as is set out in Dixon and Smith by Mr Justice Wood. As we understand the authorities, the restriction to “person in authority” is referable to - it is only the excitement which is held out by them, by persons in authority, that there is the real risk as to reliability of that which is thereafter said by the confessionalist.

GLEESON CJ: But there are some people who are likely to be much more frightened of people who are not in authority than of people who are in authority, sometimes with very good reason.

MR HOLDENSON: Yes.

GLEESON CJ: Why does the rule not cover them?

MR HOLDENSON: In our submission, as we understand the authorities, it is an accident of common law, which is why when the common law was done away with, as it was in England with the Police and Criminal Evidence Act in 1984, the restriction as to “person in authority” was expressly removed by statute.

GLEESON CJ: If you look at sections 84 and 85 of the Uniform Evidence Act now, the rule just is not there.

MR HOLDENSON: That is correct, albeit as we understand it, if we had been dealt with in New South Wales we would have satisfied the requirements. As we understand it, that is a point that will be dealt with by Dr Lyon.

KIRBY J: But maybe that is because voluntariness has been pared down to the normal meaning of that word. Did the person say something of their own free will out of their mind that is something they have agreed to say? Then you leave other questions such as the public policy of police getting involved in deceptive conduct to a different rule, a rule that is separate from voluntariness.

MR HOLDENSON: We are not setting at nought, as your Honours will appreciate, free will, free choice. That has been dealt with.

KIRBY J: No, but you are in the High Court of Australia and you are dealing with an issue of basic principle where a great court of another land, the Supreme Court of Canada, unanimously has rejected your argument, and normally we would pay great respect so far as it is relevant to our basic principles of the common law to that sort of ruling and therefore you have to really try to undermine that level of principle.

MR HOLDENSON: I attempted to undermine it by reference to how it is that it is not right in this country that where the police office is ‑ ‑ ‑

KIRBY J: Essentially your argument is that it does not matter on a trivial matter of whether you are wearing a uniform. It is question of whether you have purported to show you have the power to pull the levers of the State. That has to be what you say.

MR HOLDENSON: The crucial fact could probably be characterised in this way. The offerers of the inducements in these cases persuaded the appellants that they were close to the police and thereby had the ability to influence the course of an investigation. It turns out they were close to the police; indeed, they were the police.

CRENNAN J: What if they were not, what if they were fellow criminals? On your theory it would seem they would be termed “persons in authority” passing on an inducement from the corrupt police officer.

MR HOLDENSON: That question was raised with me in the court below and your Honours have no doubt read the way in which it was dealt with by his Honour Justice Vincent at paragraphs 164 and 165. As to the other limb of voluntariness, that may well on the facts be satisfied. As to this limb of voluntariness, if there only be a subjective component as to who falls within the scope of the phrase “person in authority” on the facts of these cases, we satisfy it. As it turns out, in our submission, it does not matter because on the facts of these cases, the offerers of the inducements, as a matter of fact, were police officers. It may well be that what is said by a master criminal to a person in seeking to elicit a confession does result in the making of a confession in circumstances of involuntariness. It would very much fall within the second limb and be dealt with presumably in that way, so that that is on the assumption that there is an objective component which is not a matter which concerns us on the facts.

We put our argument, and I know I have said this on about half a dozen occasions, by reference to principle, that is the justification for the rule. It matters not that the police officers are not wearing their uniforms but instead pretending to be criminals. The reasoning of the Supreme Court in Canada, for the reasons we have put in our submission, and for that matter the judgment below which is to the same effect, is just not correct and disregards the justifications and disregards the manner in which the inducements were formulated which invoked the authority of the State in a forceful manner.

Subject to your Honours, we otherwise, with respect to this limb of voluntariness, rely upon our written submissions but if I could just deal with the other matters. That takes us to the second limb of voluntariness and Mr Tehan will deal with them. In our written submissions upon which we rely, we have placed a slightly different emphasis on some matters and then there are the other grounds of appeal which flow if these confessions are ruled out. There are other grounds of appeal, the additional grounds, because if they go out there is an abundance of evidence in the cases which would also go out because it no longer has a foundation, that is, all the evidence referable to the scenarios and the conduct of the scenarios and that would simply lead to the consequential orders which we have set out in the outlines of submissions.

KIRBY J: We would surely not get ourselves involved in those matters. They would have to go back to the Court of Appeal to make consequential analysis of the evidence in the light of any rulings on the admissibility of the scenario evidence.

MR HOLDENSON: Mr Coghlan will tell us but in Hill it might well be common ground that it is a retrial, but Mr Coghlan will tell us that. But, otherwise, yes, it would have to go back.

GLEESON CJ: Some of this other evidence that went in by virtue of this would be capable of being misunderstood as reflecting upon your client’s propensities.

MR HOLDENSON: Absolutely, it would be wholly inadmissible because it was only led in order to put into context the confessional statements made on the last day. It otherwise would not go in. As your Honour characterises it, it would be absolute propensity evidence for which there is no reason, it has no work to do other than as propensity. If your Honours please.

GLEESON CJ: Thank you, Mr Holdenson. Yes, Mr Tehan.

MR TEHAN: If your Honours please.

KIRBY J: When it is convenient, if you would just explain how you have divided up, I am not entirely clear. It seems to be angels on the head of a needle; you are both talking about voluntariness and nothing else.

MR TEHAN: We are speaking about voluntariness and our submission is that voluntariness should be given a broad and wide meaning and that is we will demonstrate an approach which is consistent with that taken by this Court.

We adopt Mr Holdenson’s submissions on that aspect of the voluntariness rule concerned with persons in authority. As he said, we have for convenience divided the case up. Our brief is basal voluntariness. By that term we mean what Sir Owen Dixon said in McDermott:

the basal principle that to be admissible a confession must be voluntary, a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man’s will.

It is that principle which was offended and is now at stake in each of these cases. The appellants had no choice but to make the confessions they did.

GLEESON CJ: That seems to be where lawyers part company with psychiatrists and philosophers. Ideas of free will or free choice may be contentious. People may act under impulses or influences or pressures, often very powerful, sometimes virtually irresistible, but the law describes their conduct as voluntary. What exactly does that mean?

MR TEHAN: What the law does is look at the conduct, look at what happened and, in our case, we will demonstrate that you know an involuntary confession when you see it, and that is our case.

KIRBY J: That is not a very good rule. That sounds like Justice Frankfurter’s rule on an obscenity. We cannot send that back to the trial courts of Australia, you just know it in your bones.

MR TEHAN: The rule stated is: has the person truly had a freedom to speak or remain silent? That is why, to cut to the chase and perhaps take up the matter your Honour Justice Hayne raised with my learned friend, we would say that the ultimate matter of principle at stake in these appeals is the right of every citizen of this country to speak or remain silent.

KIRBY J: It is not confined to citizens.

MR TEHAN: The right to silence which has its foundations in various immunities, one of which is the privilege against self-incrimination.

HAYNE J: Just before you come to the development of this branch of the argument, can I understand how you say it would have played out and should have played out at trial and on appeal. The principle at stake is not, I think, controverted. Do you say the trial judge should have excluded the evidence of the confession on the basis that what, it was not open to the jury to conclude that it was made in exercise of a free choice?

MR TEHAN: He should have excluded it on the basis that the only proper view that he should have come to was that it was on the balance of probabilities not voluntary.

HAYNE J: And if it had gone to the jury it would still have ‑ ‑ ‑

MR TEHAN: It is not a jury question, your Honour.

HAYNE J: Had it gone to the jury there would still be a jury question about whether it was voluntary, would there not?

MR TEHAN: No, it is not a jury question, it is a question for the judge.

CALLINAN J: Whether it was reliable, that was the jury question, was it not?

MR TEHAN: That may be a jury question but, as this Court made clear in Swaffield and Pavic, reliability has nothing to do with voluntariness. Voluntariness is a matter for the judge.

CALLINAN J: I do not know whether voluntariness would be excluded from the jury’s real consideration when the jury was considering reliability. You could not exclude from the jury’s mind the question which might arise or might occur to them when they are considering reliability, “Well, how reliable is this? Did he really make it? Was he making it truly voluntarily?” Those are the thoughts that would go through the jury’s mind and you could not prevent them from doing it. I do not think it is wrong that they do.

MR TEHAN: All I was doing was attempting to say ‑ ‑ ‑

CALLINAN J: No, I know that but I am going beyond that and really going to what the jury considers once the trial judge finds that it is admissible and then the jury has – there have been many submissions made to the effect that it was not reliable.

MR TEHAN: That was really the basis on which it was fought once it went in.

CALLINAN J: Yes, and I do not know what counsel said.

MR TEHAN: I mean, it is really the only basis on which it could have fought.

CALLINAN J: It would not have surprised me if counsel had said, “Well, why would you pay any attention to this? It was just something told by one alleged criminal to another apparent criminal. How can you treat that as a confession? That is something that was made up. It was not voluntary in that sense.”

MR TEHAN: He had to deal also with the nature of the confession that was made. Of course, one interesting thing that is just pointed out to me, in England, and I think Mr Lyon may say something about this, the jury have to be satisfied beyond reasonable doubt of the voluntariness of the confession, which of course is a completely different situation from what we have in Australia.

GLEESON CJ: What do you mean by “free choice”?

MR TEHAN: What we mean by “free choice”, your Honour, is a choice unconstrained by any pressure, hope of advantage or benefit or force or coercion or compulsion, a true free choice.

GLEESON CJ: You would be surprised to know that there are places I would rather be than here at the moment and the psychiatrists might explain my presence at the moment by reference to a number of influences or pressures that produce that consequence, but I thought I was here as a result of a free choice. How is that consistent with your explanation?

HAYNE J: Good luck, Mr Tehan.

MR TEHAN: It is always a matter of degree, your Honour.

KIRBY J: I could not think of a better place to be than here.

GLEESON CJ: I am sure that is probably right.

MR TEHAN: There you go. It just shows that minds might differ over what choice is and that is why ultimately what we will be submitting is that you need a firm guiding rule and the firm guiding rule has always been the voluntariness rule.

GLEESON CJ: But if instead of saying what they did say to your client they had said to him, “We’ll arrange for you to have a luxurious overseas holiday”, would he have said what he said in the exercise of a free choice?

MR TEHAN: I do not know, your Honour. He might have. That was not what was offered. What was offered was something completely different. I mean, it is hypothetical.

GLEESON CJ: What is not hypothetical is that people act under all sorts of influences and pressures, sometimes powerful pressures, but we attribute to them a free choice of a kind which a psychiatrist or a philosopher might described as absolutely spurious.

MR TEHAN: Your Honour, we will demonstrate in a moment that our client had no free choice.

GLEESON CJ: But you have to tell us what you mean by that.

MR TEHAN: What we mean by that is the unconstrained, unconditional choice to speak or remain silent.

HAYNE J: That seems in the end to confine it to something that is volunteered unsolicited that simply emerges out of the blue.

MR TEHAN: Not necessarily emerges out of the blue, your Honour. There might be situations where there is some element of ‑ ‑ ‑

HAYNE J: Otherwise, if the person concerned is told, “You look worried. What is on your mind?”, there then follows 20 minutes of most detailed confession. What is the court then to do? Inquire into the nature of the relationship between the inquirer and the speaker about whether the speaker felt obliged to respond to the inquirer?

MR TEHAN: Well, it has always been regarded as the fundamental test. That is what McDermott said. In criticising the growth of the discretion rule his Honour Justice Dixon had occasion to say that it has been the case that it perhaps has not been readily understood how broad the principle is as to voluntariness.

CALLINAN J: What about if the police officer is a lay preacher and he exhorts a parishioner in the interests of his soul, his immortal soul, to confess. He says, “You will get forgiveness and redemption if you do.” The way you are putting it, that would not be admissible either.

MR TEHAN: No, it would not be admissible.

CALLINAN J: Does it make a difference if the lay preacher is not a police officer on Monday to Saturday?

MR TEHAN: No, your Honour, save in this sense, that in the example your Honour gives the person is speaking to a person who perceives is a representative of God.

CALLINAN J: So even though that person may commend confession to the authorities, that confession cannot be received?

MR TEHAN: It cannot be received, your Honour. It cannot be received because – I mean, if the person knew – and this applies to most cases of trickery, untrue representations – if the person knew ‑ ‑ ‑

CALLINAN J: There is no trickery in that. There is no trickery in the example I have put to you, is there?

MR TEHAN: But the reality is that the confession would not otherwise have been made and in that sense it is not the product of a free choice.

CALLINAN J: So that once there is a hope of redemption, whenever it is done in the hope of redemption, if encouraged by any other person at all, then it cannot be received. Do you go as far as that?

MR TEHAN: Yes, your Honour.

KIRBY J: Would it not depend, using Justice Callinan’s example, on whether or not it was simply the case that a lay preacher at the suspect’s church just sat with him and he blurted out this story, that might well be voluntary, but if he goes to headquarters and says, “The suspect is in my church. I think he might say something to me,” and he is then set upon and he begins a conversation and, as it were, brings the matter out and leads the person on, then the fact that he is just in a suit and not wearing any clerical clothes or any symbols of office would not mean that the person has not been induced to say it by a person who was in fact a police officer?

MR HOLDENSON: Which is what happened in this case.

KIRBY J: That has to be your proposition, that the vice is here that these were police officers who deliberately set about the scenario tactic to secure from the suspect a detailed confession which, had they gone about it by interview process, they could not have done without giving proper warnings and securing and advising that they could have the benefit of a solicitor.

MR TEHAN: Indeed it is, your Honour. The whole basis for the scenario was to deny – the appellants in each case had to be denied their fundamental rights. They could not ‑ ‑ ‑

GLEESON CJ: Where does that leave the evidence of an undercover police officer in a drug ring of a kind which courts receive commonly?

MR TEHAN: That example, which I think was raised on the hearing of these appeals in the courts below, does not concern confessional evidence, and the special rules that relate to confessional ‑ ‑ ‑

GLEESON CJ: It would have been raised on the hearing in the courts below because the judges in those courts would day in and day out see evidence of things that people have said to undercover police officers in drug cases, for example.

MR TEHAN: Yes.

GLEESON CJ: Well, we have to state a principle, whatever the principle is, that will cover that kind of evidence.

MR TEHAN: Those are cases of the obtaining of real evidence, not cases concerned with the special rules that concern confessional evidence.

GLEESON CJ: The real evidence might take the form of conduct that is observed by those undercover police officers.

MR TEHAN: It might indeed, your Honour, but we are here dealing with confessional evidence and the special rules that relate to confessional evidence. That is the difference.

KIRBY J: What was, at the relevant time of these scenarios, the law of Victoria relating to the videorecording of confessions to police?

MR TEHAN: The law in Victoria was contained within section 464 of the Crimes Act that provided that an investigating official warn a suspect that ‑ ‑ ‑

KIRBY J: What is the trigger for the obligation of officials to transfer the matter to video recording?

MR TEHAN: That the person is a suspect, that the questioning be official questioning. The definition of an “investigating official” contained within section 464 excludes a covert operative. So, for the purposes of these scenarios that section did not apply.

KIRBY J: Which is the section?

MR TEHAN: It is section 464, and if you go to the definition section of “investigating official” your Honour will see it excludes a covert operative, and Mr Lyon will deal with that matter further, your Honour.

KIRBY J: I am sorry?

MR TEHAN: My learned friend Mr Lyon will deal with that matter further. Your Honours, if I could move on to set out what our first submission is and to return to where I was, we submit that the appellants in each case had no choice but to make the confessions they did. In each case they did so after months of manipulative deception and promises by covert police officers. This much is not in dispute.

The confessions were made upon the hope and promise that the murder investigations in which each of the appellants were suspects would disappear. Fear of prosecution for murder was the motivation for each of these confessions. Last week, the retiring chairman of the Macquarie Bank said to break someone psychologically they have to know they have no chance, so everything you do has to work. That is what happened in each of these cases. The appellants were manipulated to a position where there was no chance, no choice but to make the confessions they did.

In the courts below reliance was placed upon an unduly restrictive view of the voluntariness rule. The courts below fixed upon the fact that the appellants were told by the covert operative in each case that they could leave at any time. Our first submission, therefore, is that this approach was wrong. In our submission, the voluntariness rule, properly applied, would have led to exclusion of the confessions in each of these cases.

Can we turn to our second submission. We want to make it clear that our submissions are in part independent of findings of fact concerning whether the operatives were persons in authority or indeed whether in fact in each case the will of the respective appellants was overborne. In our submission, proper application of the voluntariness rule would mean that calculated deception and trickery of this order by covert police officers ought to have led to mandatory exclusion.

KIRBY J: Now, what did you mean by “of this order”? That sounds like a principle of degree, not a matter of absolute rule.

MR TEHAN: There must be some element of degree, yes, and we will come to that in due course, your Honour. That is so because clearly in each case the appellant’s freedom to speak or remain silent was influenced. Our second submission, therefore, is that this Court should now confirm that where a person’s freedom to speak or remain silent has been influenced by deception, trickery or manipulation such that there is no effective exercise of the freedom, then basal voluntariness has been breached.

The reason for that, to go back to the matter of principle I put earlier, is because what is at stake is the right to silence founded in the immunity against self‑incrimination, summarised perhaps best in Miranda v Arizona in these terms, referred to:

As a “noble principle often transcends its origins”, the privilege has come rightfully to be recognized in part as an individual’s substantive right, a “right to a private enclave where he may lead a private life. That right is the hallmark of our democracy.”

Having referred to the underlying philosophies behind the privilege, the court went on to say:

All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government – state or federal – must accord to the dignity and integrity of its citizens . . . In sum, the privilege is fulfilled only when the person is guaranteed the right “to remain silent unless he chooses to speak in the unfettered exercise of his own will.”

And that is what these cases ultimately are concerned with.

KIRBY J: Yes, but of course Miranda was concerned with the Fifth Amendment. We do not have anything like that.

MR TEHAN: I know that but we still have the right to silence founded upon the immunity ‑ ‑ ‑

GUMMOW J: It comes down to though what do you mean by “unfettered exercise”, which is a metaphor, after all.

MR TEHAN: I used the phrase “unrestrained, unconstrained”. That is what voluntariness is about, it is about a true freedom to speak or remain silent.

GUMMOW J: The other side of the ledger is a utilitarian analysis, a Bentham analysis, which would say, “Nothing intrinsically wrong in using deception. The question is the bad consequences outweigh the good consequences”, and that is what was weighing on the Supreme Court of Canada, I think, where there is no State authority involved in the sense used in the Supreme Court of Canada.

MR TEHAN: The Bentham view is not the view that we advance, in answer to your Honour.

GUMMOW J: Not every deception founds a legal consequence. The householders who were hiding Anne Frank might have told the police there was no one upstairs, so you cannot draw these absolute principles, it seems to me. Law is all about refining them. To take Miranda, it is okay if you are a citizen, tough luck if you are an alien, right, as we see in current decisions in that country.

MR TEHAN: That may be unfortunate.

GUMMOW J: Whereas the question for us is: are you within the Queen’s peace? It does not matter if you are an alien or not.

MR TEHAN: Certainly these appellants were.

GUMMOW J: All I am putting to you is that you cannot seek to take us up the mountain repeating these grand abstractions which Americans tend to when the reality has to be different if the law is to function effectively, weighing a whole lot of competing interests.

MR TEHAN: Your Honour, all I am trying to do is to put in context what is the real matter of principle at stake in these cases and it seems to us that it is the right to silence.

HEYDON J: That is not what Justice Dixon said in McDermott. That is not part of his test.

MR TEHAN: What page of ‑ ‑ ‑

HEYDON J: (1948) 76 CLR 501 at page 511.

GUMMOW J: He was using language of duress. He was not using language of undue influence, the more subtle notions of undue influence. That is not what he is talking about. He is talking of something approximating tort language of duress.

MR TEHAN: With respect, your Honour, the language that he was using was voluntariness, a person’s free choice to speak and indeed ‑ ‑ ‑

GUMMOW J: I know, but another level of analysis says, what is it that led to the exercise of the choice? It may be ties of affection or influence or whatever, but nevertheless it is a free choice.

MR TEHAN: What is said at page 512 at point 8 on that page:

The view that a judge presiding at a criminal trial possesses a discretion to exclude evidence of confessional statements is of comparatively recent growth. To some extent the course of its development is traced by Lord Sumner in Ibrahim’s Case. In part perhaps it may a consequence of a failure to perceive how far the settled rule of the common law goes in excluding statements that are not the outcome of an accused person’s free choice to speak.

Those very words recognise – and we will develop this further because it is really our second submission – that in this country voluntariness has always been given a wide berth and we have not perhaps found the need to ‑ ‑ ‑

GUMMOW J: He talks about “duress, intimidation, persistent importunity, or sustained or undue insistence or pressure”.

MR TEHAN: “By any means” I think at ‑ ‑ ‑

HEYDON J: It implies that there can be some importunity, some insistence and some pressure.

MR TEHAN: Yes.

HEYDON J: Are there not findings of fact against you which are concurrent in the courts below – not your client but the appellant Tofilau – the trial judge concluded that the applicant well knew that he could have withdrawn from the activities at any time and he appreciated he was under no compulsion to make any admissions?

MR TEHAN: I do not know that the findings are quite as high on that latter score in our case but I will come to our case – in fact, I am attempting to come to our case now. We challenge the findings of fact. In our case we say that when you analyse the facts the only finding the judge could have come to was that the appellant’s will was overborne.

HEYDON J: Which paragraph?

MR TEHAN: In particular, paragraph 49 of the ruling at appeal book page 23 is challenged.

HEYDON J: On what basis is it challenged?

MR TEHAN: On this basis, your Honour, that we would submit that the judge unduly concentrated upon the fact that the covert operative M said that the appellant could leave at any time and that that thereby gave rise to a free choice to speak or remain silent without, we would say, properly bringing into the mix the reality that if he was to leave he would be charged with murder.

HEYDON J: This calls for a factual analysis. It calls for an examination of evidence.

MR TEHAN: I am going to go to that right now, your Honour.

HEYDON J: Is that in your written submissions?

MR TEHAN: I thought we had referred in part to the facts, your Honour, in our written submissions.

HEYDON J: Yes, but an analysis dedicated to the proposition that paragraph 49 was wrong in light of the evidence.

MR TEHAN: We challenge the findings in that paragraph certainly, your Honour.

HEYDON J: Which part goes through the detailed evidentiary analysis which is called for by the submission?

MR TEHAN: I am sorry, your Honour. I did not hear what you said.

HEYDON J: I simply want to know which part of your written submissions sets out the detailed evidentiary analysis which is called for by the submission that paragraph 49 is factually wrong.

MR TEHAN: Paragraph 31 in our submissions and 32, where we say that an unduly restrictive approach was taken to the meaning of “freedom of choice”.

HEYDON J: That is a question of law, is it not, rather than a question of evidentiary error?

MR TEHAN: It is mixed in this case, your Honour, because we have got a finding of fact against us which we challenge.

HEYDON J: What evidence should we look at in order to reach the conclusion that paragraph 49 is wrong?

MR TEHAN: I am about to take the Court back to that now and I ‑ ‑ ‑

HEYDON J: May we take it that it is not in your written submissions?

MR TEHAN: Not what I am about to address now, your Honour. Before I do so, could I give the Court a little background. This was a case where the police had a cold case but they did have a suspect, the appellant, so they set upon a novel course of action. Two courses were launched and they met together at the point of the confession. The first was the induction of the appellant into a fictitious criminal gang staffed by covert police operatives. The second was a public launch of a reinvestigation into the identity of the deceased’s killer. The appellant developed trust in the gang because it gave him friendship, money and importance. At the same time articles appeared in Melbourne newspapers under the heading, “Bonny may have known her killer - Police hunt for Boarder.” As it happens, the appellant did board with the deceased and her mother. Homicide detectives visited the appellant and spoke to him and his fiancée, requesting him to undertake a DNA and polygraph test.

I will give the Court the page references in the appeal book now for the following matters. In covertly recorded conversations a member of the gang, Terry, said to the appellant that the boss of the gang can make evidence go away:

“But we’ve got to know the full story so that we can then put wheels into motion to get things changed.”

That reference is page 57, line 20. The appellant when questioned about the murder continually denied that he was the killer, to which Terry said:

“Just if you did, it doesn’t matter, it’s not going to be any problem.

That reference is at page 62, line 47.

I mean if it, if it ya know if it happened it was accidental. I don’t care if something went wrong, that’s fine.

Appeal book page 65, line 47. As the pressure mounted the appellant said he was panicking, pages 66, line 47, 67, line 3, and 74, line 42, and in shock, page 87, line 30, and that he had only just started to get his life back together with a new job and partner. On 4 June Terry said:

“The heat’s on you and therefore . . . The heat’s on all of us.”

Page 86, line 5. He told Terry of his relationship with the deceased and her mother. The appellant was told he would be wiped from the gang if he did not tell the truth, page 97, line 14. Terry said the boss was waiting on a report.

Then on 6 June, prior to the appellant meeting the boss, M, at Crown Towers, Terry said to the appellant:

“You’re going to be part of a family and everyone looks after each other. Okay so. But the one thing that will bring you undone here is if you tell one lie to the boss, he’s obviously got a file.”

Page 127, line 30.

Then on the afternoon of 6 June there was the meeting between the appellant and M during which the confession is extracted and there are, in our submission, five important aspects to it. Firstly, the appellant is told he is a red hot suspect. The investigation will not go away and his denials will make no difference. Pages 199 and 200. Secondly, the appellant is told, however, that:

things can be fixed. That, that problem can be made to go away.

Page 199, line 45. He is told that there is evidence of his relationship with the deceased and that police have DNA evidence which is significant because it connects him to the crime. Page 202, line 23, page 206, line 25.

KIRBY J: That was a false statement, was it?

MR TEHAN: Yes. Thirdly, the appellant is told that if he says he did not do it M cannot fix it. He cannot be given an alibi, page 213, line 20. As one might imagine, at this point things started to get a bit tense, as might be imagined. So we move to the fourth stage which is a crucial stage, the presentation of the prop. Could I hand up, with the leave of the Court, a document - the document which is in the appeal book, your Honours, is at appeal book pages 263 to 265/6. That document was the document that went before the trial jury. The second document that I have handed up to your Honours is the document that in fact was shown to the appellant and was the document that was the subject of the tender upon the voir dire. Indeed, your Honours will see from the document that I have handed up that it excludes a number of matters that were obviously considered prejudicial by the time of the adverse ruling on the voir dire being all of the material under “Recent developments”:

A witness has recently been identified who provides evidence that the victim was in fear of CLARKE prior to her death.
A further witness has been identified who provides evidence of CLARKE being sexually interested in the victim.
On the 13^th September, 1983 CLARKE was interviewed whilst an inmate of HM Prison Pentridge. He provided an alibi for the night of the murder. This alibi has been thoroughly investigated and has been found to be false.

And the other part of the document which was not before the jury but was in fact shown to the appellant is on page 2 where it is stated at point 4:

Examinations of the crime scenes of the murders of Bonny Clarke and Theresa Crow reveal that there are striking similarities between both crimes, in particular the fact that both crime scenes were cleaned subsequent to the deaths. Further detailed comparisons are being conducted with a view to exploring the viability of ‘similar fact’ evidence.

KIRBY J: Only that part was excluded from the jury?

MR TEHAN: That was excluded from the jury as were the other three matters that I have mentioned under the heading “Recent developments”, but the reason why I show the complete document is, of course, it was the document that was presented to the appellant at the time shortly prior to his confession. If one goes to page 199 – and I have provided to the Court the first document that is with the Court – is a complete record of the conversation on that page, it being the case that that part of the conversation as recorded which is highlighted was excised for the purposes of the trial. But if we go to the top of that page you will see what happens. The appellant says:

Mark I didn’t do the bastard of a thing.

Next Mark says:

I’m saying to you I don’t believe you. Right and I’m saying to you, this is the one and only chance you’ve got, one and only chance I’m going to put up, I going to put up with any bullshit. I’ll speak straight to you.”

KIRBY J: What page are you reading?

MR TEHAN: Page 215 in the appeal book. I said earlier 199 apparently. Page 215, your Honour. Thirdly, he says:

You kept a secret for 20 years I think, and I completely understand why you wouldn’t want to talk about it. The fact of the matter is everything I’ve been told and things I’ve read, and you can have a look at this, says to me you fuckin’ did that thing, right.

And, of course, he has in his hand this document as he is saying these matters to the appellant. He next says - and in this respect I will move to the document that I handed up because it gives the full conversation:

“I couldn’t care less whether you killed ten kids. It doesn’t make any difference to me. You’ve already gone to gaol for killing people –

obviously a reference to the Theresa Crow matter –

that just shows me that you can do it, that’s all. I said to you that might, might, let’s be honest it’s not might, that is a useful thing, as long as you can get away with it. Now there’s one you didn’t get away with, but you’ve been there and you’ve done your time for that, that’s over and done with. This one is not over and done with it’s fuckin’ far from over and done with. You have a look at that”

and that is when he throws the document down in front of the appellant, and it is very instructive what it states. The trial judge found that it certainly overstated in a number of important respects the investigation and the stage that it reached, but it reveals in short, by its terms, a strong circumstantial case for murder. It makes reference to similarities between the Crow matter and the Bonnie Clarke matter, and indicates the inevitability by its last paragraph. It says, “On completion of these inquiries, approval will be sought from the Director of Public Prosecutions to charge Clarke with this murder”.

In our submission, it indicates the inevitability that he would be charged with murder. If we return then to page 215, on presentation of that document ‑ ‑ ‑

KIRBY J: This is just the psychology of interrogation and the psychology of interrogation, as any cross‑examiner knows, includes long periods of silence because people have a tendency to want to fill silence. All of these are matters of degree. They are not, it seems to me, absolute.

MR TEHAN: That is why I referred to the quote earlier. The psychology here was to give this man no chance at all but to confess and it was done through the agency of this document, and it worked and the reason it worked is apparent from the conversation that follows. He says at the bottom of page 215 that it was hand delivered to him at the airport. He uses the words at line 40:

That is obviously fucking not the whole story is it?

He goes on at line 45:

The circumstantial case against Clarke will be further enhanced . . . This is why it’s taken me nearly two weeks to try and get some sort of check done on you.

He speaks of him having been previously spoken to at Pentridge and they took a statement from him, and then, line 11, page 216 is the crunch:

“What do you want to do about it? Because I’m telling ya this is not going to go away. You can deny it ‘til the cows home. I can’t have you hanging around with us.”
Joe:     “Mm.”
M:      “You can see why can’t ya?”
Joe:     “Shit.”
Joe:     “…(inaudible)… Thank you.

We submit that he has been given no chance and it has worked. He truly recognises at that point that he will be charged with murder if he does not confess. The words “Thank you” are very revealing. The appellant is saying “Thank you for getting me this information, for revealing to me the true nature of my plight, for revealing to me a way out of my predicament”, and then what follows, your Honours, is that after the prop is presented the appellant says “it was an accident”, “I can’t see meself fuckin’ marrying her”, referring to his new partner, “in fuckin’ fuckin’ nick”, “my mind has just galloped”, that is at pages 216 to 217. At the bottom of page 217 he says:

I don’t want to fuckin’ live with this, ya know, all me life. Get it out of the way. Bury it. Get rid of it. I can’t see meself surviving any other way. If I go in I reckon I’m just, I’ll be fucked in that respect. I’ll probably never get out. I’ll probably, if I do get out I’ll probably be in me late 70’s early 80’s. Life wouldn’t, life wouldn’t be worth a pinch of shit” . . .
“I’ll become too institutionalised.”

And thereafter he makes his confession, and it has worked. He has been given no choice, no chance; it has worked.

HEYDON J: But, Mr Tehan, the judge saw a video of this and he heard the accused give evidence before him and he reached the conclusions in paragraph 49 on the basis of those observations. It is very hard to overturn findings of that kind.

MR TEHAN: I am going to say something about that in a moment, your Honour. I am quite aware of that and would your Honour just give me a moment to move on because I will come to that very shortly.

Just dealing with what we have been with, we would submit that the following conclusions follow, and they are four in number. Firstly, the appellant believed it was inevitable that he would be charged with murder. Secondly, he believed that when he was charged with murder, his life would effectively end. To use his own words, life was not worth “a pinch of shit”. Thirdly, the appellant believed that the only way he would not be charged with murder was to accept M’s offer to fix things, that is, to make the murder go away and, fourthly, the appellant believed that the only way he could use M to this end was to confess to murder. The only logical conclusion is that the appellant believed that he could prevent his life from effectively ending only by confessing to murder, and therefore, it is our first submission that he had no choice, his will was overcome and the confession was not voluntary.

Now, to take up what your Honour Justice Heydon said, of course a contrary finding was made. It was substantially made against us for two reasons. First, it was said that the appellant did have a choice because M said simply that the appellant could leave at any time, and one sees an example of that at appeal book page 203, line 47 where M says:

“Your problem can be fixed. You don’t have to have anything to worry about. But only if you want it to be that way. I’m not going to sit here and tell you to do anything, because, as I said, a number of times, you can get up here and walk out of here it doesn’t make any difference to me.”

That is merely an example of ‑ ‑ ‑

KIRBY J: Where is that, I am sorry?

MR TEHAN: That is referred to in the ruling ‑ ‑ ‑

HEYDON J: Page 204, line 3.

MR TEHAN: I am sorry, that is the bottom of page 203 that I have been reading from.

CALLINAN J: Would it have been different if your client had said, “Look, I didn’t do it, but I just want to get the police off my back. So, yes, say I am right for it and get rid of it for me”. Would that have been a different case? Your client never made any protestation of innocence or of not having done it, did he?

MR TEHAN: Yes, he did, he denied it, continually.

CALLINAN J: During these conversations?

MR TEHAN: Yes, continually, continually denied it.

CALLINAN J: Can I see the strongest of the denials.

MR TEHAN: Yes, your Honour, at 215. I have referred to that earlier.

CALLINAN J: I am sorry, I ‑ ‑ ‑

MR TEHAN: It was:

Mark I didn’t do the bastard of a thing.

CALLINAN J: I missed it, I am sorry.

KIRBY J: What page was that?

MR TEHAN: 215, line 1.

HEYDON J: Yes, and on the next page he says, “it was an accident she died.”

MR TEHAN: Yes, which of course had been what had been offered out to him in a sense earlier, because Terry said, “We don’t care if it’s an accident.” It must be said that at page 62, I think, also – page 62 which is a conversation earlier in June, line 40, for example, the appellant says:

Joe: Yeah. I didn’t do it.
Terry: “Yeah. If you did.”
Joe: “Right.”
Terry: “Just if you did, it doesn’t matter, it’s not going to be any problem. Because if we put something into place it’s on all the facts that are there. Not just, don’t just say you didn’t do it just to keep me happy because I don’t care.”

What had happened was that over the weeks prior to 6 June, the appellant had been asked of Terry about his relationship with the deceased, how he knew her, how he knew the deceased’s mother, about what he knew about the killing, and he continually denied it.

Now, to go back to the finding made against us, the first aspect of it is that the judge found that the appellant did have a choice because M said he could leave at any time. However, in our submission, the judge, with due respect, simply ignored the powerful effect of what the appellant believed would happen to him if he did leave without confessing. I mean, here he was, we know - virtually unable to leave. It is said to him, “You can leave if you want to,” but if he leaves, what does he walk into? A charge of murder. It is just unrealistic to say in those circumstances, “Well, because you were told you can leave, that therefore means that the confession that you make is voluntary,” in circumstances where the threat, the inducement is, “You will be charged with murder,” and, in our submission, the judge did not bring that into the mix. That is the first matter.

As your Honour Justice Heydon points out, the judge referred to the appellant’s evidence on the voir dire. On the voir dire the appellant does say that he is confused, that his mind was racing. He says, and this is quoted by the judge:

they are trying to fix me on a murder blue that I didn’t commit. I can’t explain it, the way my mind was working at that time.

KIRBY J: Where is that, I am sorry?

MR TEHAN: That is at page 22, line 40, referred to in the judge’s ruling. Our submission is that when reference is had to what the appellant said at the time of his conversation with M, it was not open to the judge to find other than that the appellant was in fear of the murder charge and confessed as a result of this fear.

We submit further that nothing the appellant said or did or did not say in his evidence on the voir dire was sufficient to alter this finding. Certainly the appellant did not say in terms in his evidence on the voir dire that he confessed because he was in fear, but it was obvious. The tape was there for all to see. The fact that he mentioned money and membership of the gang in his evidence did not hurt his case. He had decided to do something terrible, in our submission: confess to a murder. Membership of a gang and money perhaps made that terrible decision a little easier. It does not alter the reality that the confession was involuntary. We submit that the high point that we have concentrated upon is obviously presentation of the prop because that is when it epitomises no choice.

Your Honours, if I could turn to our second submission and develop that. It is, as I said earlier ‑ ‑ ‑

KIRBY J: Just before you do, looking at the way it gradually emerged slowly and then tumbling out, it has an air of authenticity about it. He says, “I’ve kept it to myself for 20 years, it was an accident”, he gives excuses, he does not say, “I am innocent. This is a wrong”. He does not say anything that would suggest that the ultimate words said are unreliable, are unbelievable. It is true, as you have said, that he had a lot of psychological pressure applied to him but the ultimate things that came out are very powerful indications that what he was saying was the truth.

MR TEHAN: That is why it is such an interesting case, your Honour. Let us accept that your Honour’s analysis is completely correct that this is a truthful, reliable confession. What do you do when a truthful reliable confession comes about through overbearing of the will?

KIRBY J: We are dealing with the death of a human being in our society.

MR TEHAN: We know that part of the answer is the concentration upon voluntariness does not look at reliability. What it looks at is whether – and support for that is in what Chief Justice Brennan said in Swaffield and Pavic (1998) 192 CLR 159 at page 171 where his Honour said:

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.

So concentrating upon the task at hand, we submit that the only conclusion that was open was that his will was overborne, and it does not matter that he speaks the truth. It is an irrelevant consideration, and indeed, as a matter of logic, it ought indeed be an irrelevant consideration to determine voluntariness, and if that is the price ‑ ‑ ‑

KIRBY J: You say it is irrelevant but ultimately our question will be presented by the proviso. Ultimately we will have to consider whether the result of what has occurred, will we not, was a miscarriage of justice affecting your client?

MR TEHAN: No, the proviso would not apply, your Honour. If the voluntariness rule is given the operation that we contend for, then the price may be that a reliable confession is not admitted and that is the end of the matter. The confession should not have gone in and the trial miscarried and there has to be a remitter back in our case because we followed this confession, ultimately, there was a record of interview.

GLEESON CJ: Yes, I think your client was taken quickly to the police and then made a very ample confession.

MR TEHAN: That is why I said there would have to be a remitter back.

GLEESON CJ: Is that a convenient time, Mr Tehan?

MR TEHAN: Yes. Well, I will not be too much longer, I do not think, your Honour.

GLEESON CJ: We are on track in terms of division of time between counsel?

MR TEHAN: I believe so, your Honour.

GLEESON CJ: We will adjourn until 2.15.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

GLEESON CJ: Yes, Mr Tehan.

MR TEHAN: Thank you, your Honours. Much of our second submission we have already dealt with before lunch. We do want to make one point. Ever since this Court’s decision in Cornelius and then its decision in McDermott, this Court has wondered whether true voluntariness in the sense of freedom of choice has been properly understood.

KIRBY J: Has been what?

MR TEHAN: Properly understood. Your Honour, with respect, the Court has wondered whether what we now know as discretionary principles do not cover the same field. Indeed, we have given the Court already what Sir Owen Dixon said in ‑ ‑ ‑

KIRBY J: Not necessarily, you see, because you might take a view as a court, as a temple of justice, that you do not permit certain evidence to be given of what officers of the Crown or officers of the State do out of a principle of controlling those officers and laying down standards for society and especially for public officers, but there may be no question that the confession was voluntary in the sense that it was given and it was meant and it was true and it was reliable. You then may have some policy grounds for saying, “Well, I don’t care. Truth can be bought at too high a price.”

MR TEHAN: Those considerations, in our submission, are not excluded from a proper consideration of voluntariness because they involve an examination of the effect of the improper conduct upon the mind of the confessionalist. The distinction is this: voluntariness on the one hand concerns itself with the freedom of the confessionalist’s mind; discretion, of course, concerns itself solely with the actual propriety undertaken during the investigative process. But voluntariness, properly understood, does look to and does not exclude the effect of the improper conduct upon the free choice of the confessionalist’s mind.

Indeed, your Honour, we draw some comfort from the Law Reform Commission report of 1975 when, in dealing with the issue of voluntariness, the Commission outlined two rationales for the rule, one of which has already been dealt with, risk of falsity, and the other one was described in these terms: the need to discourage undesirable police practices. In this sense, the rule has a disciplinary function in much the same way as the United States rule grounded in the Constitution which excludes the results of unlawful searches and seizures. It was a recognition of that rationale which motivated the Commission to reject submissions that the only test should be the reliability test. In the words of the Commission, they said:

We think it is important that there should be an extra disincentive, in addition to the operation of the police disciplinary code and the discretionary exclusionary rule, against the use of force or violence, or the threat thereof, to extract confessions from suspects.

KIRBY J: What paragraph is that?

MR TEHAN: Paragraph 153 at page 69 of the report, your Honour. If I could just ‑ ‑ ‑

KIRBY J: Is Dr Lyon going to be dealing with the relevance of the Uniform Evidence Codes?

MR TEHAN: I am sorry, Dr Lyon will deal with that later, your Honour, yes. Could I give the Court the authorities that support the proposition that this Court has, as we submitted a moment ago, wondered whether the discretionary principles cover the same field. I have given the Court the quote from McDermott at page 512. The quote from R v Lee is at page 149, the quote is set out in paragraph 43 of our outline. More recently, in Cleland, Justice Dawson at page 29 and following has spoken of the discretion rule being of recent origin and approved the comments that I have referred to of Justice Dixon in McDermott. Of course, it was in Cleland, and this is set out I think in the reply of the appellant, Tofilau, it was Justice Murphy who at pages 13 to 15 said involuntariness can arise where there is any suggestion of trickery or false representation. Finally, of course, in Swaffield and Pavic the Court has also, in our submission, wondered whether the discretionary principles do not in some ways either cover the same field or certainly overlap. We give the Court these pages: Chief Justice Brennan, page 173; Justices Toohey, Dawson and Gummow at pages 196 to 197 and Justice Kirby at page 209.

In our submission, it is important for this Court to state the proper breadth of the voluntariness rule. Once stated, however, there will still be a role for discretion. As we said earlier, discretion concerns itself with the propriety of the investigative conduct. Voluntariness, on the other hand, concerns itself with the freedom of the confessionalist mind. The distinction is an important one when it comes to the vindication of the rights of accused persons who, after all, are entitled to put the Crown to proof of voluntariness, properly defined, and have their confessions excluded as a matter of law if they are found to be involuntary.

To finally return to that rationale for the rule that was mentioned and that I have alerted the Court to a moment ago by the Law Reform Commission back in 1975, in these cases there was a high degree of pressure over months. There was covert interrogation in the face of denials. There was deliberate deception: “You won’t be charged when in fact you will be”.

In our submission, the combined force of those matters, operating as we have demonstrated, upon the mind of the appellant, Clarke, leads to the conclusion that it is simply fictitious to say that he exercised his choice to

speak or remain silent. Only recently – I think in October last year – your Honour Chief Justice Gleeson said:

The rule against the admissibility of involuntary confessions is no doubt an inconvenience for those who enforce the criminal law. It is an inconvenience they are obliged to accept.

We submit that if the sentiments contained within your Honour’s comments there are accepted then this appeal should succeed. If the Court pleases.

KIRBY J: But you are not relying on discretion?

MR TEHAN: No, we do not rely on discretion, your Honour.

KIRBY J: What are you quoting this for?

MR TEHAN: His Honour there was dealing with voluntariness.

KIRBY J: I am sorry?

MR TEHAN: His Honour there was dealing with involuntary confessions, which is what our argument, of course, has been about, involuntary confessions.

KIRBY J: Was that in a case or was that in an address?

MR TEHAN: It was an address delivered to the Judicial Conference of Australia in Canberra on 6 October 2006. If the Court pleases.

GLEESON CJ: Thank you, Mr Tehan. Yes, Dr Lyon.

MR LYON: If the Court pleases, in the case on behalf of Marks, we rely on and adopt the submissions filed and made in the matters of Tofilau and Clarke for their analysis of the principles relating to a person in authority and in relation to the principles of basal involuntariness. Before I start with our submissions as such, there were a couple of matters raised during the course of discussions this morning that it may be apposite if I can address as they touch on areas that have been addressed in our written outline of submissions.

Earlier this morning your Honour Justice Kirby raised questions of the applicability of trickery and as to whether or not it went to discretion as opposed to voluntariness and, of course, what it appeared your Honour had in mind was passages in Swaffield and Pavic.

KIRBY J: Also, might I say, the article by Mr Ashworth, is it, in the Law Quarterly Review.

MR LYON: Yes, your Honour.

KIRBY J: Because he points out there is trickery and trickery. There is small and inconsequential and massively useful evidence, and there is big and awful and offensive and evidence that is not quite so significant. So he says that there is an equation and it has to be dealt with in a very nuanced way by police directions and a whole series of answers, and you cannot just have absolute rules.

MR LYON: Might I observe, with respect - I say that that is right - but a case that is instructive is the Canadian case of Oickle that is referred to in our outline. Oickle is a case of the Supreme Court of Canada that deals with ‑ ‑ ‑

GUMMOW J: What is the citation?

MR LYON: It is [2000] 2 SCR 3. Now, at paragraphs 61 and 65 of the report in the judgment of Justice Iacobucci – this is at pages 39 and 41, 42. At 39, paragraph 61, under the heading of “Oppression” and what the court is doing, to put it into context, is that the court is determining what factors might inform involuntariness in Canada. There is that first interesting paragraph, 61:

A final possible source of oppressive conditions is the police use of non-existent evidence. As the discussion of false confessions, supra, revealed, this ploy is very dangerous -

Now, that can be an extreme use of trickery.

KIRBY J: Where is that passage?

MR LYON: This is paragraph 61 on page 39, your Honour.

KIRBY J: Yes.

MR LYON: But then over the page is a separate heading. On page 41 the court deals with “Other Police Trickery” and there determines or considers that:

A final consideration in determining whether a confession is voluntary or not is the police use of trickery to obtain a confession. Unlike the previous three headings, this doctrine is a distinct inquiry. While it is still relate toe voluntariness, its more specific objective is maintaining the integrity of the criminal justice system.

I sought to draw that to the Court’s attention because of the questions that arose before but can I also - in the same vein I refer the Court to another case that is referred to in our written outline of submissions and that is an American case of Illinois v Perkins in which there is a discussion as to the dangers of trickery, although it arises primarily under the due process clause of the American Constitution.

GUMMOW J: Just before we leave Canada, was there any reference in the later case of Grandinetti to the earlier case of Oickle?

MR LYON: It was certainly referred to. The principles were generally referred to, your Honour. In Grandinetti, paragraph 34 refers to Oickle, but there is no particular discussion of the principles arising from Oickle in that case.

GUMMOW J: Yes.

MR LYON: What they say in the judgment there is:

The issue argued on this appeal by the ‑ ‑ ‑

GUMMOW J: It is the last sentence in paragraph 34 that is important.

MR LYON: Yes, your Honour, that is correct. Now, in Illinois v Perkins the American Supreme Court considered ‑ ‑ ‑

GLEESON CJ: Could we have the reference, please?

MR LYON: Yes, your Honour. It is 496 US 292 and at 300 and 301, Justice Brennan, in a separate concurring judgment, at 301, this is at the very top of the page, warns of the effect of trickery. He says:

This is not to say that I believe the Constitution condones the method by which the police extracted the confession in this case. To the contrary, the deception and manipulation practiced on respondent raise a substantial claim that the confession was obtained in violation of the Due Process Clause.

There is reference then to Miller v Fenton which also appears in our written outline of submissions. The court, after quoting from Miller v Fenton in the judgment of Justice Brennan, considers how it is that trickery and deception may tie in to the question of voluntariness.

GLEESON CJ: Yes, they may. My problem is to work out how you tell whether they do. In life people will often say, “I was tricked into doing that. I was tricked into saying that”. In what circumstances does that amount to an assertion that I did not do it voluntarily?

MR LYON: Can I answer that in two ways, your Honour? The first is that in Oickle, the Canadian courts inform themselves in a similar way to the passage in Swaffield and Pavic where Justice Kirby said there comes a line where the community will not tolerate such behaviour or such tactics. Now, that of course is a very unhelpful test and, particularly in today’s climate where it can be said that there is probably very little that shocks the community in terms of police tactics ‑ ‑ ‑

GLEESON CJ: To say to somebody, “You tricked me into marrying you”, because, for example, you made a representation that turned out to be false, is not the same thing as saying, “My will was overborne. The marriage is null and void.”

MR LYON: I follow your Honour’s point. Now, that leads to the second proposition and that is that in this case, in the matter the subject of these appeals, the tie-in to the – it is not the exercise of power by the crime boss himself so much. It is the fact that he represents that he has power to derail the prosecution from within the prosecutorial agency itself and so this aspect of the appeal submits that it is this tie-in to the relationship of power within the legitimate organs of government agencies, such as the police and the prosecutorial arms, that really does cross the line, that that is the trickery and deception. It was your Honour Justice Kirby who asked this morning, “What is the element of degree? There must be some element of degree?” Now, the cases ‑ ‑ ‑

KIRBY J: Talking of elements of degree suggests that it is a question of discretion and not a question of an absolute rule. Voluntariness has normally been dealt with as a threshold question which, once engaged, if established, has an absolute requirement of exclusion.

MR LYON: Well, perhaps I might step back a moment. In these cases where it has been argued that a person in authority is a person not cloaked with legitimate authority but has the means of influence within the legitimate arms of the police and the prosecutorial agencies to derail a prosecution, it is this association with authority that really informs the inducement. It informs the trickery and it informs the authority that the crime boss purports to wield. So we say, whatever the line is, it can be drawn well and truly underneath this for the inducements that are offered.

To some extent, and I do not profess this is a full answer, it seems that in these cases it is that fact that really underlines or emphasises the nature of the inducements that are made, that it is made by people that say, “We can influence the legitimate arms of government”. But that is not the only instance. In the scenarios, and I want to move to these matters in a moment, there are other means of permeating the legitimate aspects of government.

In one of the scenarios that appears on the chronology to the appellant Marks’ submissions, on 28 October 2002 there was a scenario whereby a purportedly corrupt government official was met in some gardens down the government end of Melbourne and purportedly legitimate passports but for false names, or legitimate passports and blank, were handed over. They were given to one of the crime gang members and then the appellant was asked to check the passports and the objective here was described to the court as being to demonstrate that the crime gang had influence in different aspects of government. So it is not simply a derailing of the police, it is a building up of a complete, all‑encompassing power and influence.

If I then move to the submissions that I seek to make at this time, in our written submissions at paragraphs 33 to 42 and 56 to 61, we describe in particular our submission as to the effect of the police conduct in the case of Marks that has general application. The issue of the conduct of the covert and overt police operations is not raised to try and push public policy arguments in through the back door; rather, what we seek to do is to pick up the observations of Justice Deane in Cleland where he stated:

If the making of such an alleged [confessional] statement has been procured or influenced by unlawful or improper conduct on the part of law enforcement officers, that circumstance will be of relevance on the question whether the confession was voluntary.

What we submit here is that the conduct is indeed to be characterised as either improper or undesirable – and I will come back to the reason for that in a moment – and the conduct exposes the risk that what is said ultimately, at the culmination of these operations which are only for the purpose of conducting an interview with the suspects, it increases the risk that they are unreliable.

Now, one of the concerns I had as I heard the discussion this morning was the use of the word “unreliable” must be clearly specified in these cases. Unreliability in the cases, as I read them, is not a determination of the truth or accuracy of the confessional statements, it is hypothetical unreliability.

There was a quote from one of the High Court cases where one of the judges said years ago that judges jealously guard against putative unreliability or the risk of unreliability, and that the truth or otherwise of the confessions has nothing to do with it.

GUMMOW J: Can we just go back to Oickle again?

MR LYON: Yes, your Honour.

GUMMOW J: Page 41. See the heading there, “Other Police Trickery”?

MR LYON: Yes, your Honour.

GUMMOW J: Then Justice Iacobucci says:

A final consideration . . . Unlike the previous three headings –

which were “Threats or Promises”, I think, “Oppression”, “Operating Mind” -

this doctrine is a distinct inquiry . . . its more specific objective is maintaining the integrity of the criminal justice system.

Then he refers to what Justice Lamer said in an earlier case, and then at paragraph 67, third sentence:

There may be situations in which police trickery, though neither violating the right to silence nor undermining voluntariness per se, is so appalling as to shock the community.

Do you urge such a principle on us and, if so, do you say that is what should be concluded was the situation here?

MR LYON: We certainly urge that it be considered as part of the voluntariness.

GUMMOW J: That is not what the judge said. He said it was “distinct”, and your attempt to package it with voluntariness, it seems to me, keep running aground, unless you face up to the need to develop some specific principle related to control of the police force, and if so, as Justice Lamer said, “We are not dealing in a world of great delicacy here”.

MR LYON: At paragraph 67, Justice Iacobucci concludes:

I therefore believe that the test enunciated by Lamer J. in Rothman, and adopted by the Court in Collins, is still an important part of the confessions rule -

in relation to that aspect.

GUMMOW J: Yes, that is not what I am asking you.

MR LYON: I am sorry, I have misunderstood your question then, your Honour.

GUMMOW J: I took you to the second sentence of paragraph (d) on page 41:

this doctrine is a distinct inquiry.

Right?

MR LYON: Yes.

GUMMOW J: Related to voluntariness but distinct, right?

MR LYON: Yes.

GUMMOW J: And to the conclusion then reached in paragraph 67. There was a question as to whether this distinct inquiry had been overthrown, and he says, no, it has not.

MR LYON: No, it has not.

GUMMOW J: But the criterion seems to be “so appalling as to shock the community”. Justice Lamer gave examples: “a police officer pretending to be a chaplain”, which has some affinity to what Justice Callinan was raising with you this morning; “injecting truth serum into a diabetic under the pretense that it was insulin”. Now, that is the realm of discourse. Do you say it applies here?

MR LYON: In the matters under consideration.

GUMMOW J: Do you say it applies in Australian law and if it does how does it square with the facts in this case? If you do not say it applies in Australian law, that is it, we can put it away, but you cannot just float Oickle up and float it away again.

MR LYON: No, I follow that, your Honour. This is not going to answer your question directly but I am going to do my best. The first is that one of the tasks I undertook was a comparative study, which is the floating up part. As to the letting it fly away, we say, no, this Court can grab aspects of principle as enunciated by other courts if it informs more fully the concept of voluntariness in this country. This would not be the first time that this is raised. It was raised by Justice Murphy in Cleland as a matter that can inform voluntariness.

GLEESON CJ: Yes, but what we are trying to do is think it through.

MR LYON: I follow that, your Honour.

GLEESON CJ: Let me give you a simple example of police trickery. A police officer says to a suspect, “We know you did it, we have an eyewitness” and the suspect says, “Very well, I give up. A man is an animal. I did it”. Is that an involuntary confession?

MR LYON: Again, I do not want to be seen to prevaricate but it may be, depending on the circumstances. Is there an inducement, that is a hope or threat held out by a person in authority and does it actually overbear the will? The use of – obviously there is a discretionary aspect to that as well, but in the circumstances of these cases, there is a great deal more to the debate than simply a single isolated statement of trickery.

KIRBY J: Dr Lyon, can I just say that I just do not understand. Swaffield was a case where it was accepted by both accused that the admission of the confession was voluntary, and yet that was a case of conversations with police operatives or somebody who had been set up to it, and the parties in that case did not try to load up all these things into the voluntariness test. In this case you are trying to load everything into the voluntariness test and it was not even argued in Swaffield. I am going to deal with this appeal on the basis that the parties present. This is not a constitutional matter.

MR LYON: No, your Honour.

KIRBY J: This is a matter of ordinary application of the law and if that is what well‑advised, well‑represented litigants decide to do, as far as I am concerned that is what they will do, but I just have to say to you that as Justice Iacobucci said in Canada, this is the issue of the control of police conduct and the wide public discretion. It just does not seem to me that that is a matter that fits very comfortably, at least in every case in the voluntariness question. It comes separately and later and distinctively and it is not before us and I am not going to deal with it.

MR LYON: We understand. Your Honour has made his sentiments perfectly clear and your Honour did say this morning ‑ ‑ ‑

KIRBY J: I think you are just asking the Court to do an awful lot to push it all into voluntariness when in Swaffield and Pavic the parties did not even argue that.

MR LYON: It came about in some part this way, your Honour. In Dixon & Smith, of course the rationale is set out at page 221 threefold, but there is the aspect of reliability that I have begun to rely on heavily. There is the disciplinary aspect and then there is the protective aspect, the rule against self-incrimination. In this case, and picking up what Justice Deane said in Cleland, we respectfully submit that this conduct is relevant to inform all three aspects; not simply disciplinary, not simply public policy, but also by informing the risk of unreliability and also informing the question of whether or not the protective principle has been infringed. Part of what we implicitly submit is that in Tofilau and the related cases, the court below acknowledged aspects of the principles but got the balance wrong.

Now, if I can move on from there, I say that the police conduct informs inducements in this way. The police went to considerable lengths to set up what was, in effect, a parallel universe by 16 scenarios over a two‑month period. Over weeks and months they created a false reality building up in the appellant’s mind and it had key features. It had the feature of friendship and the police, the overt operation, knew that they were playing on that because when the application was made to get the covert operation on foot, the informant in the matter described the appellant, Marks, as a “weak character and a person dependent on attention and affection”. That appears in the appeal book at page 196. So the first aspect is friendship.

The second aspect is the prospect of an Aladdin’s cave of future riches through payments that were actually made at the time for conduct of scenarios. He was provided with a flat, an apartment, in a desirable suburb, rent free, for almost the entire two months he was there ‑ ‑ ‑

KIRBY J: The reference to the payments is in your written submissions.

MR LYON: Written submissions, your Honour, and to the flat in St Kilda. It operated, thirdly and most importantly, as a pincer movement. Justice Coldrey, the learned trial judge in Marks acknowledged the “psychological pressure” to which the appellant was subjected and described it as a “tandem operation”. That appears in the ruling in the appeal book at page 199, paragraph 47. It was, we submit, a pincer movement designed to herd the appellant into a tightly boxed psychological corral. The overt operation, that is the homicide squad, made visits to the appellant’s work, at appeal book 144.

KIRBY J: This is a very standard practice of interrogation. It used to be called the old soft and hard; one person is friendly and helpful, one person is hard as nails.

MR LYON: But now done with what we have described as the parallel universe by creating a false reality and building up. Previously, your Honour, as I understood it, it was done when the accused or the suspect was most often in custody where one officer would come down and slam the desk and then walk out and then the other would say, “Hey, go easy. He will talk”.

KIRBY J: New times, new needs, new techniques.

MR LYON: It comes to some consideration of how far will the ends justify the means. So the overt operation, there are visits to work, there is the suggestion that he will be made to undergo a lie detector test, there were visits to the appellant’s family and friends and, as your Honour Justice Kirby observes, there is the build-up of the covert operation providing some relief psychologically.

By 27 November 2002, which is the date on which the interview is conducted in Marks, the inducement was not only real in his mind, we submit, but it was presented as the only realistic course open to him. At appeal book 89, the covert operative crime boss told the appellant that he had paid good money to get information from the police and he said:

FROM WHAT I SEE AND FROM WHAT I’VE BEEN SHOWN . . .
FROM WHAT I’M TOLD . . .
AND WHAT I PAY GOOD MONEY FOR, YOU’VE GOT THESE PROBLEMS . . .
YOU’RE HOT AS A CHOP, YOU’RE THE MAN . . .
AND YOU’RE GOING TO GO DOWN UNLESS WE DO SOMETHING FOR IT.

So there he is, he is not just told that he is hot but he is told that he will be convicted and that the way out of it is, “We can do something for you”. So, subsequently, the covert operative crime boss stated that he needed what he called the “DUCKS GUTS”, that is at appeal book 93, that is the minute details and thereby he could provide the means by which it would go away and that would either be an alibi or the investigation would be stymied.

Although there had been earlier words used, such as, “You can walk away and you don’t have to say anything”, we respectfully submit that these amount to no more than ritual incantations whose effect is really stripped away by the build-up of this overt and covert operation and the very powerful inducement on offer.

The conduct, of course, builds up the person in authority in the appellant’s mind. It is clear that the two operations ran very closely together. The crime gang itself was purported to be extremely hierarchical in its nature and not at all egalitarian, and in addition to exposing the appellant to criminal activity, as I said before, they paid him good money to do very little, they took him out for meals, they gave him the rental accommodation, they showed him the passports, he met the corrupt policemen and they told him stories of their purported jobs, their purported lifestyles and his prospects for wealth and life.

With the continual build-up of parallel pressure, it is not surprising that in the judgment of the court below the appellant is described as having given evidence that the homicide squad had made his life a misery. Then, by the culmination on 27 November, the two operations, the covert and the overt operations, merged and they merge, your Honours, in a very real way. This is set out at paragraphs 38 and following in the written submissions.

They merge in that the informant in the homicide investigation and the controller of the covert operation were present in a different room but could hear the interview being conducted. At one point, in the appeal book at 165, the interview was stopped and the covert operative crime boss consulted with the informant and the controller to get further instructions and evidence was given on the voir dire by all three that that was, in fact, what occurred. Those further instructions were then put to the appellant who then returned to the flat with another covert operative gang member and gathered up the matters referred to in the interview.

So it is in this way, we say, that the covert and overt operations merge. Any difference between them is one of shade and not substance. So the object of the operations is not simply to have the appellant perceive that he is to joint a criminal gang headed by a boss, but to create the impression, the perception, that the influence wielded by the crime boss was not so much his own but the influence over others within the enforcement agencies.

Now, this can indeed be powerful. If one imagines a police constable saying to a suspect or to an accused, “Tell me what you know and I will see if I can make things go easy for you”, the legitimacy of the office of the police in uniform cannot be denied, but the more powerful example would be the person who says, “I know someone up the top. I will be able to derail this. I can make this go away for you”, and there is the conundrum between the two.

The whole objective of the operations was to get the appellant to the interview, to get him to talk. The means of doing that was to offer inducements which were cloaked with a purported hierarchy and to access within legitimate authority. Now, in that respect and for the reasons put forward by my learned friend, Mr Holdenson, in his earlier submissions, we say that the reasoning of Justice Conrad is of considerable force in the analysis of these scenarios.

Now, all of what I have said so far can enliven questions of basal involuntariness and freedom of free choice, and although there was debate at the voir dire and at the trial about the appellant’s psychological make‑up, the learned trial judge in his ruling found that the appellant was subjected to pressure in the lead‑up to the interview, that he was indeed offered inducements in circumstances where the police had assessed him to be a person of weak character and dependent on attention and affection.

CALLINAN J: Any person being interrogated about a crime is going to be under pressure. I do not know what a statement “under pressure” really adds.

MR LYON: Well, in this case, your Honour, what we refer to is the eight‑week build‑up to the conduct of the interview on 22 November.

CALLINAN J: There would be lots of suspects, I would have thought, who would have been interviewed over a period like that. We often have cases where people have been interviewed by police officers several times over long periods. Of course there would be progressive pressure building up upon the person being interrogated. I do not think you can say simply because the same topic has been broached by a number of periods over a long time, there is undue pressure which should lead to the ‑ ‑ ‑

MR LYON: I follow your Honour’s point, but this is a situation where the police engage in conduct that steps outside the parameters of section 464 of the Crimes Act (Vic). It is reproduced in our material.

In circumstances where the object is to build inducements and to build a perception in the suspect’s mind, putting aside the overt police operation, which is the sort of situation your Honour is talking about, the police in the covert operation are able to step outside the parameters of that, offer inducements that they would never be entitled to offer, and do so in circumstances where the build up of the operation has been to build in the appellant’s mind the perception that this person has the influence to do what it is that he is purporting he can do. So that is the use of the term “build up of pressure” in these circumstances.

The interview took place in a room at the Crown Towers Hotel in Melbourne, an adjunct of the casino. The appellant was not told before he got in the car that that was where he was going. He was taken up by a security pass to a floor. He was patted down. All of these are factors used to build the hierarchy and to build the sense of authority and influence in the appellant’s mind.

HEYDON J: To succeed you have to successfully attack what Justice Coldrey does on pages 205 to 207. He formed the view that your client had considerable self-possession and was well able to cope with situations of stress. There was no apparent evidence of him being compliant.

MR LYON: Paragraph 70 and 71 in particular, your Honour.

HEYDON J: Yes, well, your, rather, with respect, abstract reasoning is not attacking those paragraphs.

MR LYON: No, it does not.

HEYDON J: Your reasoning might support some amendment to the Crimes Act (Vic), but I do not know that it is going to overthrow Justice Coldrey’s findings.

MR LYON: Let me make it clear, I do not intend to make an attack on paragraphs 70 and 71, your Honour.

KIRBY J: If you do not do that, how can you possibly have this Court hold that the confession was not voluntary?

MR LYON: Through the first aspect, your Honour. Through inducements made to a person in authority. Now, can I say this. If I am committed I can do one of two things now. I can either finish or I can – if the Bench has any questions in relation to any of the material raised in relation to other jurisdictions - during the course of my learned friend’s submission promises were made on my behalf that I would inform the Court of various matters, but much of it is set out in my written submissions and unless the Court has any particular questions, I would propose to leave it there.

KIRBY J: One question which was raised during the special leave application was the harmony of the proposal that is being advanced concerning voluntariness in the common law with the developments of the uniform Evidence Acts which were referred to both by the joint reasons in Swaffield and my own reasons.

MR LYON: Yes, your Honour.

KIRBY J: Now, is there anything you want to say that is not in written submissions that is relevant to that issue?

MR LYON: Not so much in addition to the written submissions but in the course of the written submissions at paragraph 64 on page 14, we reproduce the observations of Justice Callaway in the court below in Tofilau, …..to the operation ‑ ‑ ‑

KIRBY J: What paragraph is this?

MR LYON: This is paragraph 64 of the written outline, your Honour. The essence of what his Honour observed in Tofilau was that the operation of the uniform Evidence Act may well have produced a different result to that operating under his understanding of the common law and it would be for a couple of reasons.

The first is that section 85 of the uniform Evidence Act as his Honour, the Chief Justice observed before lunch, substantially differs from the “person in authority” test. That test is in fact modified to a test of inducements made by a person capable of influencing a decision, whether a prosecution be brought or continued.

So far as this morning it was discussed that “person in authority” has an objective and a subjective element to it, the subjective element is not required under section 85. There is no requirement that the confessionalist perceived the person to be a “person in authority”, using the shorthand term. So it is a significantly different provision from the way the common law operates.

CALLINAN J: The person must be a person who is actually capable of influencing the decision under the Evidence Act, is it not?

MR LYON: Yes.

CALLINAN J: Not a person who merely claims to be capable of doing it, so under this test, I doubt whether any police officer would be objective ‑ ‑ ‑

MR LYON: Because they were police officers, they were “persons in authority” by virtue of their objective positions.

CALLINAN J: But they would not be capable of getting a murder charge pulled out.

MR LYON: They would be capable. Might I say, with respect, your Honours, merging the two tests, a “person in authority” is a person capable of influencing a decision as to whether it is ‑ ‑ ‑

CALLINAN J: I doubt whether any police officer who knows, and if other police officers know, if any police officer who is one of a number of police officers knows that person A has murdered somebody, that police officer would, in fact, be capable of influencing the decision not to prosecute. I just do not think that is right.

MR LYON: Then section 85 would have no work to do.

CALLINAN J: No, it has work to do if you have a police officer who alone knows that. It may be very difficult to satisfy that because there might, in fact, be very, very few police officers who would ever be in a position of influencing a decision to prosecute or not to prosecute certain crimes. It may vary with the crime. There may be some lesser crimes, a bit of shoplifting or something.

MR LYON: It cannot be that the provision is aimed only at the Director of Public Prosecutions himself, or herself.

CALLINAN J: No, there is still room for it to operate, but the circumstances in which it could operate, in relation to some particular crimes might be very, very limited. That is all I am putting to you.

MR LYON: If your Honour would bear with me for a moment.

CALLINAN J: What I am saying really is that it might be very difficult to satisfy section 85. I am not saying it cannot be satisfied, but the cases in which it can be satisfied might be very few.

MR LYON: A person who is capable of influencing rather than ‑ ‑ ‑

CALLINAN J: Has to be able to, not who may or might be able to. It is a person who is capable of, and it has to influence the decision. There has to be some influence.

MR LYON: Yes. I would say that it remains wide and applies to police officers in that briefs are still put together by police as to whether or not recommendations are made.

CALLINAN J: I have put it to you, and I think you have dealt with it. I have put it to you.

MR LYON: Yes, thank you, your Honour.

KIRBY J: In your written submissions, you refer to the position in the United Kingdom, and there are the two criteria, one of which is the old unreliability, but there is also oppression, but you mention the case of Proulx, which apparently held that in circumstances like the present, that trickery and deception by police did not amount to oppression, and apparently the leading opinion in that was given by Lord Justice Mance, now a member of the House of Lords.

MR LYON: Yes, your Honour.

KIRBY J: So you really have the position in Canada which stands against you, you have the position in the United Kingdom which appears to stand against you, though under the statutory provision, and you have the decisions below which stand against you ‑ ‑ ‑

MR LYON: Except for the dissenting judgment of Justice Conrad ‑ ‑ ‑

KIRBY J: You have a dissenting opinion in Canada, but apart from that, and you, as I….., tie your hand behind your back and exclude the public discretion to exclude evidence on public policy grounds. I mean, what have you got going for you except for a sole dissenting opinion of one judge in Canada which the Supreme Court of Canada unanimously overruled. It means that in all of those countries with similar systems to ourselves, the scenario‑type evidence of police is being received.

MR LYON: Can I answer that in two ways, your Honour? The first is we strongly submit that Justice Conrad’s reasoning is right.

KIRBY J: Your voice has dropped. I do not know if that is Freudian.

MR LYON: Then let me speak up. I will answer it in two ways. The first way is that we submit that Justice Conrad is right, and not every court has found against us. Your Honour will be heartened by footnote 9 on page 16 where some reference is made to Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the two cases cited there are cases from which we would draw some comfort, but of course, they do not appear in the body of the text because of the different considerations under the European Convention.

KIRBY J: You have your new human rights law in Victoria, but it was not in force at the relevant time, so that does not seem to help you very much.

MR LYON: No, not a great deal.

KIRBY J: At all, perhaps.

MR LYON: The Charter of Human Rights Act in Victoria also seems to be similar to the Canadian model in that it talks about after charging certain rights are invoked. They are the matters, your Honour.

GLEESON CJ: Yes, thank you, Dr Lyon. Yes, Mr Coghlan.

MR TEHAN: Your Honour, before my learned opponent commences, might I approach the podium? Your Honours, we have heard the discussion throughout the course of the day and in particular concerning the fact that we have but one ground of appeal raising the matter of voluntariness. When special leave was granted, it was granted solely on that ground of appeal. We made a judgment and we have stuck to it.

Your Honours, it is with a good deal of anxiety but after close consideration that we, on behalf of the appellant, Clarke, now seek leave to add an additional ground of appeal, and we do so to cover a submission that if we fail on voluntariness we should succeed on the alternative ground that the confession made to the operative M on 6 June 2002 should have been ruled inadmissible on the ground of the exercise of discretion.

GLEESON CJ: That would seem to mean that the case will not go ahead today, I presume, or will not go ahead to completion today.

MR TEHAN: That is why I got up when I did, your Honour.

GLEESON CJ: All right, you make your application. We will hear what Mr Coghlan has to say about it, then we will adjourn for a short time and consider our attitude towards your application.

MR TEHAN: If the Court pleases.

GLEESON CJ: Make your application. That will involve formulating the ground of appeal that you want to add.

MR TEHAN: Yes.

GLEESON CJ: Of course.

KIRBY J: It is fair to say that Justice Hayne, who was presiding at the special leave, raised the issue very clearly and you, just as clearly, declined the issue of discretion.

MR TEHAN: Yes, there is no doubt about that, your Honour.

KIRBY J: Now, at the very end of the argument for the appellants, you are seeking to completely or significantly change the issues.

MR TEHAN: The ground of appeal would read, alternatively: The Court of Appeal of the Supreme Court of Victoria erred in upholding the decision of the trial judge to admit the evidence of the confession between the appellant and M on 6 June 2002 on the ground that there had been no breach of a judicial discretion to admit the evidence.

GLEESON CJ: “No breach of a judicial discretion”. I am not sure I understand that ground of appeal. I will read out what I have written again so you might care to think about it. The ground of appeal as I have noted it is, alternatively: The Court of Appeal erred in upholding the decision of the trial judge to admit the evidence of the confession on the ground that there had been no breach of judicial discretion to admit the evidence.

MR TEHAN: It would probably be better expressed, I expect, your Honour.

GLEESON CJ: Well, we had better be very careful about how we express this because having regard to the time at and the circumstances in which the application is made, we have to deal with the application with some precision.

MR TEHAN: …..awfully different from the one I put earlier, but I would propose, your Honour, that it read: The Court of Appeal of the Supreme Court of Victoria erred in law in finding that ‑ ‑ ‑

GLEESON CJ: Take it slowly because we make a note of this.

MR TEHAN: The Court of Appeal of the Supreme Court of Victoria erred in law in finding that the admissions made by the appellant to covert operative M on 6 June 2002 were admissible on the ground of the exercise of judicial discretion.

GLEESON CJ: Look, there is something quite wrong with the syntax of these proposals that you are putting. The Court of Appeal did not find that the admissions were admissible on the ground of the exercise of judicial discretion. I certainly do not propose to suggest to you an alternative way of formulating the ground of appeal, but I just point out to you that you have attributed to the Court of Appeal in that proposed ground of appeal a finding that it did not make.

MR TEHAN: Framing the submission in the alternative to the first ground of appeal that is pleaded – your Honours, I would seek to have the ground read, alternatively: The Court of Appeal of the Supreme Court of Victoria erred in upholding the decision of the trial judge to rule as admissible, on the ground of the exercise of judicial discretion, admissions made by the applicant to covert operative M on 6 June 2002.

GLEESON CJ: Where do we find that ruling of the trial judge in the transcript?

MR TEHAN: That ruling, your Honour, in our case is at page 36 and goes to page 39.

GLEESON CJ: Does it include what appears in paragraph 101 on page 39?

MR TEHAN: Yes, your Honour.

GLEESON CJ: What do you want to say in support of your application to amend your notice of appeal?

MR TEHAN: Your Honours, what I want to say is – I have partly said – we appreciate that the grant of special leave was made on the basis that the sole ground that would be argued in this appeal would be voluntariness. We made a judgment about sticking to that. Having heard the discussion with the Bench, it is arguable and strongly arguable in the judgment that we have now come to that there is raised the issue of the improper exercise of judicial discretion and, for those reasons, we would seek leave to amend. The respondent, in one sense, is not taken by surprise because in the Court of Appeal the matter of discretion was argued by all appellants and it is apparent, on the material, at least in our case ‑ ‑ ‑

GUMMOW J: Where is the Court of Appeal’s decision on this point? You have to show they were in error, have you not?

MR TEHAN: Yes.

GUMMOW J: Now, where do they deal with this?

MR TEHAN: The Court of Appeal dealt with it in ‑ ‑ ‑

HEYDON J: At 479 to 482.

MR TEHAN: At pages 479 to 482 at paragraph 126.

GLEESON CJ: And we are being invited to deal with this without the benefit of any written submissions from any of the parties?

MR TEHAN: Your Honours, one of the matters I was proposing was that there be written submissions on this matter.

GLEESON CJ: Is this an application for an adjournment that we are entertaining?

MR TEHAN: No, it is an application for leave to amend the grounds of appeal.

GLEESON CJ: Is there anything else you want to say in support of the application?

MR TEHAN: Other than this, some of the matters which have been canvassed during the course of the arguments on behalf of all three appellants would be canvassed in the further submissions, but there would probably also be questions touching upon the fact that this evidence obviously included evidence of bad character in relation to each of the appellants, and raises questions of public policy concerning police impropriety.

GLEESON CJ: Is there anything else you want to say?

MR TEHAN: No, your Honour.

GLEESON CJ: Mr Coghlan, what is your attitude to the application to amend?

MR COGHLAN: Your Honour, one would not doubt that the Court had power to allow such a late amendment if the Court was of the view that there was any risk of occasioning a miscarriage as a result of it. It is submitted, when the ruling is looked at, which is dealt with very thoroughly by the trial judge, and appropriately dealt with by the Court of Appeal, there is no reason to doubt that it is incorrect, and it is very easy to understand why the application of a discretion by a trial judge would not have been the subject of special leave to this Court.

KIRBY J: But once the matter is here – I see that at paragraph 133 of the Court of Appeal’s reasons, Justice Vincent says that he expresses some concerns about the conduct of the operatives, and he refers to the matter having been considered in Tofilau, so presumably the issue was debated in a similar way in that case.

MR COGHLAN: It was, your Honour, and in very careful reasons by the trial judge in Tofilau.

KIRBY J: I mean, I do fully understand the position that you are advancing, but would there be any prejudice to the Crown if the matter were dealt with on written submissions so that the Court could, if it felt able to do so, deal with the issues in toto and not in the way in which it has so far been argued, given what was said by the Court in Swaffield and Pavic?

MR COGHLAN: As a matter of forensic disadvantage, your Honour, I have strong objections to dealing with it in that way. Cases ought to be dealt with as a whole.

KIRBY J: On the other hand, these are very long periods of imprisonment.

MR COGHLAN: They are, your Honour, and I would not want to be heard to say that I do not have a very firm understanding of the avoidance of miscarriage and that this Court ought to intervene to prevent miscarriage absolutely, but it is simply submitted there is not a sufficient basis to say at this late stage that is the point we are at. I submit that it is clear that there were strong forensic reasons for not challenging the exercise of a discretion.

KIRBY J: But in Swaffield and Pavic it was not even argued that these matters were to be dealt with under the rubric of voluntariness. They were dealt with under other issues including the public policy discretion.

MR COGHLAN: That is so, your Honour, and the learned trial judge in this case, and each of the trial judges, dealt very carefully with all the matters of discretion, in particular those matters raised in Swaffield and Pavic. But we have come to the very last day, your Honour, in relation to the way that these matters proceed. A decision was taken to proceed on the basis of voluntariness. There is an argument capable of being distilled which says in looking at voluntariness as a simple point of law the class of those who are to be regarded in a position of authority is not closed and that matter ought to be looked at.

That is really what drove the way that this appeal started off. At the time of the application for leave, the question was directly asked, “Is there an attack on the discretions?” and the answer was, “No.” But your Honour, if the Court has any sense of the question of injustice arising, then of course it has to be dealt with.

GLEESON CJ: Mr Holdenson, what is your attitude? Are you applying just to amend your notice of appeal?

MR HOLDENSON: I am instructed not to make that application.

GLEESON CJ: And Dr Lyon?

MR LYON: I am instructed not to make the application, either, your Honour.

GLEESON CJ: We will adjourn for a short time to consider the attitude we will take in relation to Mr Tehan’s application.

AT 3.35 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.41 PM:

GLEESON CJ: Mr Tehan, as a result of what has happened in the last 20 minutes or so, it is obvious that in any event the argument in this case is not going to finish today. We only set aside one day for the hearing of this case, and we set that time aside on the basis of the understanding that we had from the special leave application as to the scope of the arguments to be presented. That understanding and its relationship to the amount of time that was set aside appears from the transcript of the special leave application, in particular, the concluding paragraphs of that transcript.

In those circumstances, the course that we propose to take is this. We do not propose to make any decision today upon your application to amend your notice of appeal. We will hear Mr Coghlan between now and 4.15 pm on so much of his arguments about the issues that have been presented by Mr Holdenson and Dr Lyon and you on the matter of voluntariness and inducement by people in authority.

We expect that Mr Coghlan will not have completed his argument on those subjects by 4.15 and the matter will then have to go over to the May sittings of the Court. We will fix a date for the continuation of all three appeals in May, and between now and then we will expect you to formulate, more precisely than has been done so far, the proposed amended ground of appeal and to provide us with a written outline of your argument in support of your application to amend your notice of appeal, and in support of the ground of appeal against the possibility that you were given leave to amend it, and we will expect a written outline of what Mr Coghlan wants to say about your application and about the substance of the proposed amended ground if we give you leave to put it.

Because the question of leave and the question of the substance of your proposed amended ground of appeal are, to some extent, interrelated we will hear full argument when the matter resumes in May, from you and Mr Coghlan, on the substance of your proposed amended ground of appeal as well.

MR TEHAN: If the Court pleases.

GLEESON CJ: Yes, Mr Coghlan.

MR COGHLAN: If it please the Court, the true starting point, it is submitted, in relation to the consideration of these appeals is the proposition that four trial judges, while considering the appropriate test to be applied, found in relation to each of the confessions complained about, on the balance of probabilities, basal voluntariness. No error was identified in appeal about their applications of the law and applications of fact.

It generally turns on the proposition that each of the trial judges used as the test of voluntariness the well‑known words of Justice Dixon, as he then was, in McDermott v The King going basically to the proposition of the will being overborne.

GLEESON CJ: Mr Coghlan, we all know that when people say, “I did that because I had no choice” they might mean quite different things, depending on the circumstances in which they say that, and we also know that there are some circumstances in which deception can vitiate consent and other circumstances in which it does not vitiate consent. Have you considered, for the purpose of your argument, the relationship between this area of the criminal law and the law of contract?

MR COGHLAN: I have not, your Honour, I must say.

GLEESON CJ: It might be something you would care to do between now and the resumed hearing and in that respect you might like to look at the articles by Professor Atiyah in 98 LQR 197 and following and 99 LQR 353 and following.

GUMMOW J: And what was said by Lord Wilberforce in Barton v Armstrong [1976] AC 104 at 121 as a starting point.

MR COGHLAN: Yes, your Honour. It raises an interesting – the part of the submission I have so far gone to raises an interesting question about a positive finding of voluntariness. To potentially be dealt with by a subpart of what is said, certainly since Lee’s Case, to be a single rule going to voluntariness that you would say by application of the subpart of the rule, namely, an inducement by a person in a position of authority there would be involuntariness.

Whether or not those two propositions live together and whether there is a fiat for saying that the inducement rule has run its course might be a matter that falls ultimately for consideration by the Court, but it does not affect the result of this appeal because it is submitted that applying the law, as we understand it, to the question of persons in position of authority, the police officers in this case were not such people and that the decisions by the individual judges and by the Court of Appeal were correct in that regard.

KIRBY J: What, in your submission, is the law seeking to do by these categories, the category of voluntariness, the category of reliability and any residual category for dealing with the offensiveness to public policy and so on? What is the principle?

MR COGHLAN: They are principles at the end of the day, I suppose, your Honour, that are borne in fairness, that is, is it fair to use against an accused person confessions gained in all these circumstances, but they have fallen into a whole lot of different categories in the way that they have been assessed.

KIRBY J: The joint reasons in Swaffield said fairness is too nebulous a criterion, hence the stiffening up to these particular subrules.

MR COGHLAN: There is a difference about rationale though, your Honour, on the one hand, and principles that we can state for application by trial judges on the other. It does not mean, though, at the heart of it all is not the notion of fairness.

HAYNE J: Fairness in the sense of assuring to the defendant a trial free from evidence that may be, not necessarily is, that may be unreliable. Is that the fairness with which we are concerned or something else?

MR COGHLAN: Fairly close to that, your Honour, I think.

HAYNE J: I confess to no originality. I draw that from a very lengthy note in 79 Harvard Law Review at 936 which is 1965 to 1966 - so it is, I think, pre-Miranda, post-Escobedo - and in particular at 958 where the authors, I think it is a student note of about 200 pages, review the whole of the law relating to admissions including what they identify as the common law rules. They do it in a way that represents at least one possible conceptual analysis of what is going on here rather than simply “I read this in that case and it says this”.

MR COGHLAN: Yes, your Honour. In terms of the history of the development of the exclusionary rule related to involuntariness, it grew up first from the inducement rule, but was necessarily connected to a person in position of authority and it never varied from that. Why there would not have been in England in the 18th century a quite separate notion of basal voluntariness, as we now understand it, is odd, but there was not and the rule ‑ ‑ ‑

KIRBY J: Except that you pointed out - I think in your written submissions or in the special leave ‑ that they did not have an organised police force in those days and therefore the acute day‑to‑day problems that have arisen maybe were not demonstrated in the same way.

MR COGHLAN: The rule then grew up, but it was still a rule about voluntariness. It became a presumption of involuntariness based on the holding out of an inducement.

HAYNE J: But also growing up as an exception to a hearsay rule for which there seems to be no single rationale.

MR COGHLAN: Except the admission against interest rationale as it has been expressed, your Honour, so often that ‑ ‑ ‑

HAYNE J: Well, you then have admissions let in as an exception to the rule against out‑of‑court assertions and at first all admissions are let in, then admissions extracted by torture are excluded. From there you go to admissions extracted by inducements. Now, trying to find any single unifying or informing principle starts to get a bit hard.

MR COGHLAN: Yes, your Honour, except to say that they were – the only way a confession could be excluded was on the basis of voluntariness. There were no discretions. I mean, it seems amazing to think that as late as 1950 it was being argued before the High Court of Australia that there was no rule in existence which allowed for the discretionary rejection of a confession, now, found by this Court to be wrong, of course, but that was the argument being put as late as 1950.

Now, the discretions have come a long way since then. True it is there are for an accused person some disadvantages that are related to the question of the use of the discretions, that is, that they have to go first, as it were, in the most general sense and demonstrate that they ought to operate. But if unfairness was at least properly recognised in 1950 - we have had since then impropriety operate as a means of discretion by first of all Bunning v Cross and then the extension by Cleland of Bunning v Cross to confessional evidence - then the spelling out, at least, of unreliability in Swaffield and Pavic, which would not have previously been at least stated in that form.

So if we turn back then to the rule that says separate from the notion of basal voluntariness the rule that says an inducement leads to a presumed involuntariness, in a case such as this where there is an actual finding of voluntariness, there is not much work for that rule to do, it is submitted, and not much work for that rule to do now because of the development of all the discretions that operate to confessional evidence.

What is put by Mr Holdenson is, of course, that there is a separate and discrete rule, as it were, that applies to inducements. In the way that rule has been expressed, it has always been tied to some promise or inducement made by a person in a position of authority, and it is submitted that the analysis by the Supreme Court of Canada is a perfectly appropriate analysis as to how that matter ought to be approached and it is a reasonable approach taken up in Australia and followed if it is thought to be necessary to preserve that notion.

KIRBY J: Could I ask you on that, this Court has said many times recently that when you approach trying to find what the common law is, the starting point is any relevant statutory provisions, including as they vary from State to State. In Victoria there is a particular statutory provision dealing with voluntariness, is there not?

MR COGHLAN: There is, your Honour, but that ‑ ‑ ‑

KIRBY J: Does that help at all in this analysis that we have to embark upon in this case, or not? Where do we conveniently find that in the Victorian ‑ ‑ ‑

MR COGHLAN: Not particularly, your Honour. It is section 149 of the Evidence Act. It will be referred to in most of the cases as section 141 of the Evidence Act and reference of it is made in detail in Cornelius and in Lee and it has been read down. The history of section 149 is that after the rule going to involuntariness by virtue of inducement came into existence in the 18th century, there were a number – and a large number – of cases that led to the exclusion of what otherwise would have been regarded as confessions, but based in particular on what amounted to an inducement.

There was never nearly as much authority on the propositions of person in position of authority because mostly that was taken for granted, but the two issues became what was an inducement of the kind capable of producing the confession? In some circles at least the law was said to have fallen into disrepute because of it, because too many confessions were being excluded. The response in 1857, or thereabouts, in Victoria, was to pass the provision that is now section 149 of the Evidence Act.

KIRBY J: If you look at that section, it talks about a promise has been held out to the person and it does not use any language about a person in authority or a person holding a public office or anything of that kind. Insofar as any clue is given by the statute law of Victoria, it does not limit it to a policeman wearing a uniform.

MR COGHLAN: No, your Honour, but designed - that not being the problem that was thought to be addressed. The problem that was thought to be addressed was what kind of inducement it was and what the result of the inducement was. So unless it was an inducement, really calculated to get a false confession, it was to be saved by that section.

KIRBY J: So this is really a reliability principle.

MR COGHLAN: It is, your Honour, it being assumed, even though it very quickly became a matter of policy that induced confessions would be excluded, but the rationale of the rule was a rule going to reliability.

HAYNE J: But that then has to be understood against Amad, is it not - was it not Amad in the Pieteria murder?

MR COGHLAN: Yes, your Honour.

HAYNE J: Mr Justice Smith who found in that case that the confession was induced by something really calculated to cause an untrue admission though Amad on the voir dire said yes, he had said it and what he said was true?

MR COGHLAN: Yes, your Honour, and section 149, I think it is fair to say, has fallen into just almost compete disuse in Victoria. I cannot remember it last being argued to save a confession. As a result of what is said in Lee’s Case, section 149 was read down to apply only to confession and that has been taken to mean full confessions and so on and there are a number of rules that have meant that it is not particularly operated.

That was the law that continues to operate in Victoria but one assumes that at the coming of any adoption of the uniform Evidence Act, section 149 is one of the provisions that will go with it. I am assuming, for instance, that section 410 of the Crimes Act (NSW) has gone in the name of the uniform Evidence Act, too.

Just while I think of that, that was a matter that was raised by the learned Chief Justice, the question of where untrue representations had fitted in. Justice Dixon, as he then was, in Cornelius said that the use of the expression “untrue representations” as they appeared in section 410 extended the common law so it had not previously and has never been part of the common law as such.

What happened, however, in relation to the present cases was that no false or misleading distinction was made in the process to say such of the things said to the accused as might be inducements ought to be looked at under the inducement rule, and everything else should be looked at under the basal voluntariness rule. The way the judges dealt with it, and it is submitted appropriately so, is that the judges took the view that when looking at the question of basal voluntariness you would look at the tricks and devices and so on in the same way that you might when deciding whether or not it was an inducement, but they found that they did not operate sufficiently to overbear the will of each of the accused.

In the first decision that was made, that is, the ruling that was given by Justice Osborn in R v Tofilau 13 VR 446, when dealing with the question of basal involuntariness, ultimately dealt with it in this way at paragraph 52 at the bottom of page 461:

In the present case the accused was fundamentally misled as to the context in which the confessional statements were made, but he was not compelled to make those statements or threatened in such a way that it could be concluded that his will was overborne. Thus while I accept that as Murphy J said in Cleland “It maybe a question of classification whether a confession induced by false representations or other trickery is voluntary”, I am satisfied on the balance of probabilities in the present case that the confession was in fact voluntary. There is 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.

Now, it is submitted that that deals with basal voluntariness in as wide a terms as it could be taken, and takes on ‑ ‑ ‑

KIRBY J: That is challenged, of course. That finding is challenged.

MR COGHLAN: Challenged as a matter of fact, your Honour, but whether - that he was entitled to the finding, but it is a ‑ ‑ ‑

KIRBY J: It is a matter of looking at all of the evidence, all the factors that were loaded up into the consciousness of the accused that led him to make his statement after so many earlier denials.

MR COGHLAN: Undoubtedly, your Honour, but one of the things that has gone to the pattern of the law in the way that it is developed in relation to involuntariness is, subject to what was said by Justice Murphy in Cleland and so on and some of the remarks made in Swaffield and Pavic, it has not been thought that the question of trickery did apply to the question of voluntariness. All I am trying to point out, your Honour, is that at least in the way that Justice Osborn dealt with it, he took all that on board. He took on board the notion that there might be trickery and did apply it to voluntariness.

GLEESON CJ: The problem that we have to address is to identify the principles according to which a trial judge will decide in what circumstances deception produces involuntariness and in what circumstances it does not. The Canadian judges, for example, have said there may be some circumstances in which deception means that a statement is involuntary. If, for example, a police officer masqueraded as the prison chaplain and heard a prisoner’s confession what was said might then be involuntary, but, on the other hand, it is very common for police to pretend, either expressly or by implication, that they have information and evidence against an accused person that they do not in truth have. That, normally, is not taken to render a confession involuntary. How do you distinguish, or more to the point, how does a trial judge distinguish between the circumstances in which deceptive conduct destroys voluntariness and circumstances where it does not?

MR COGHLAN: There might be a sub‑question to that as well, your Honour, about whether it might give rise to the exercise of the discretion as well but – we go back to – and it is submitted we do not do any better than what has happened in relation to what is said in McDermott. It is an overbearing of the will and all judges can do is look at the whole of the evidence as it is available to them in the case and make a decision about it while bearing in mind that voluntariness still has to be positively found.

KIRBY J: But if you say that you do not overbear the will by the trick, what role is left for the general rule that a sworn police officer, which these operatives were, should not induce and receive confessional material from a person whom they suspect to be, on reasonable grounds, guilty of an offence without warning them, without alerting them to the right to have a lawyer present and going through all the procedures that have been built up over the years to defend the accusatorial nature of the criminal process.

MR COGHLAN: We say, your Honour, by the proper exercise of the discretions.

KIRBY J: So those things come up in the discretion?

MR COGHLAN: Your Honour, voluntariness – it is submitted that the rule that put inducements to one side did so properly because inducements do not so readily lead to the overcoming of voluntariness in the same way as threats and some other matters might readily be seen to do. It goes back to that notion that it may be that you would not have done something in possession of all the facts, but it did not mean it was not a decision of the will and not a voluntary decision.

HAYNE J: We seem to have several very disparate ideas in play. We have at least notions of the courts controlling the exercise of investigative powers by the police. We have also questions of reliability of that which is said by the confessions. A part of the case against you is that if an inducement by a police officer in uniform is sufficient to lead to the automatic exclusion of the confession, why should not an inducement given by those who say that they can influence the investigation and who happen to be in a position of authority stand in any different case?

MR COGHLAN: Because they do, your Honour, and the analysis ‑ ‑ ‑

HAYNE J: What, you have got assertion and counter‑assertion at the moment without much underneath the assertions?

MR COGHLAN: I follow that, your Honour, but the fact of the matter is that these people held themselves out to be criminals. That is what they held themselves out to be.

KIRBY J: But they were not in fact. They were in fact sworn police officers.

MR COGHLAN: They were, your Honour. No doubt about that. Not, however, to the knowledge of the confessionalist. They were part of the criminal gang. What we prohibit in the inducement rule is the prosecution, really, with its various hats on holding out inducements to people to confess which will produce an actual confession to a crime when you are saying to the person, either directly or by implication, “And we will use that confession against you, but we will give you some other benefit or some other inducement. We will let somebody else go and we do so by the power of the State and we can probably influence it”.

That does not exist in this set of circumstances. They do not call upon the power of the State. They call upon the power of evil. Now, we have not got thus far ‑ ‑ ‑

KIRBY J: They did produce a letter from the police in one of the cases and they did purport to have the ear and the support and assistance of the police who could give effect to the promises.

MR COGHLAN: Yes, but, your Honour, only in a corrupt way, only in a corrupt way. It was never suggested that we have an influence which is a proper influence on the affairs of the state that will favour you.

KIRBY J: But it was the pulling of the levers of the State, corrupt or not corrupt. I mean, in a sense, when a policeman says, “Well, I will not charge your wife”, that itself is a corrupt act.

MR COGHLAN: It may or may not be a corrupt act, your Honour.

KIRBY J: And it may well be an illegal act, a misuse of the power, so that you cannot say that is lily white and the fact that here they are using corrupt means that puts them outside the force of the mischief to which the rule is directed.

MR COGHLAN: But the person is doing it, your Honour, in the name of the State. I am a person who is a State functionary. I am a police officer. I am here identifying myself as a police officer and make you this promise; not that I will corrupt the system, because we simply do not know. We do not know what the answer to all those is. We do not know what the answer to the bail cases is and so on. It might be the man was just going to get bail.

The best apparent promise for an investigator to make in such circumstances is one that they well know they can make good, your Honour, that is, you promise bail to the man you know is going to get bail, you promise the man you will not charge his wife where you know nobody is going to charge his wife, but we have said because you do that on behalf of the State any admission that follows thereafter we will exclude because we regard it presumptively as involuntary.

GLEESON CJ: A question was asked earlier as to why the rule excluding responses to threats or inducements is limited to threats or inducement by people in authority.

MR COGHLAN: Yes, your Honour.

GLEESON CJ: A related question is this. Why is the exclusion limited to threats or inducements? Why does it not cover misrepresentations?

MR COGHLAN: At least in New South Wales it did because of the operation of section 410, your Honour, but it seems to have been accepted that the common law did not. It may be based, your Honour, on the proposition that you are more readily recognised and that people will act in favour of an inducement in a way that we more readily understand,

your Honour, to their disadvantage, going to the question of reliability. That is simply how the rule grew up.

GLEESON CJ: Take the ordinary case: a policeman says to a suspect, “I know you’re guilty. I have an eyewitness who saw you do it. You might as well confess” and the suspect confesses. What is the common law principle that determines whether that confession is admissible?

MR COGHLAN: Your Honour, it is operated by virtue of the discretions to exclude, that it would be part of the unfairness discretion. Confession obtained in circumstances of such unfairness as to be inappropriate to use it against you.

KIRBY J: You are making the discretion look more and more connected and more and more relevant as supplementary to the voluntariness and to the reliability rule, which is exactly the way Swaffield analysed it in the joint reasons and mine.

MR COGHLAN: No, your Honour, I would not want to argue that at all. It seems to me that we have taken though - what has altered is the range of discretionary exclusion has vastly increased over the years. We are talking about a rule that began in 1783 when there was no exclusionary discretion. People were not represented, illiterate, could not give evidence. They are all the matters behind the growth of ‑ ‑ ‑

GLEESON CJ: You might add there were not any police.

MR COGHLAN: And a private authority of some kind came and said you had confessed. Well, that rule grew up in that way. Whether it has to do the same work today, it is submitted, is entirely problematical because we have been jealous to guard people’s rights in other ways. But if we are dealing with a notion that says did this person speak voluntarily or was their will overborne - it is submitted in the present circumstances will was not overborne, and that is what the judge has found and it was the appropriate test to apply and it will be very hard to find any other test that can be applied to the question of basal voluntariness. Whether there are to be subrules of voluntariness remains to be seen. But certainly this Court said in Lee’s Case there was but one rule and it was a rule of voluntariness.

GLEESON CJ: We will adjourn now, Mr Coghlan, until a date to be fixed in May.

AT 4.19 PM THE MATTER WAS ADJOURNED

[2007] HCATrans 81

27 February 2007