GLEESON CJ GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ
Matter No M144/2006
LEMALUOFUIFATU ALIPAPA TOFILAU APPELLANT
AND
THE QUEEN RESPONDENT
Matter No M145/2006
MATTHEW JOSEPH MARKS APPELLANT
AND
THE QUEEN RESPONDENT
Matter No M146/2006
SHANE JOHN HILL APPELLANT
AND
THE QUEEN RESPONDENT
Matter No M147/2006
MALCOLM JOSEPH THOMAS CLARKE APPELLANT
AND
THE QUEEN RESPONDENT
Tofilau v The Queen Marks v The Queen Hill v The Queen Clarke v the Queen [2007] HCA 39 30 August 2007 M144/2006, M145/2006, M146/2006 & M147/2006
ORDER
Each appeal is dismissed.
On appeal from the Supreme Court of Victoria
Representation
O P Holdenson QC with L C Carter for the appellants in M144/2006 & M146/2006 (instructed by Victoria Legal Aid)
P F Tehan QC with C B Boyce for the appellant in S147/2006 (instructed by Ronald V Tait)
G J Lyon SC with M J Croucher for the appellant in S145/2006 (instructed by Victoria Legal Aid)
P A Coghlan QC with J D McArdle QC and S B McNicol for the respondents (instructed by Solicitor for Public Prosecutions (Vic))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Tofilau v The Queen; Marks v The Queen; Hill v The Queen; Clarke v The Queen
Criminal law – Evidence – Confessions and admissions – Scenario evidence – Undercover police officers posing as a criminal gang used scenarios involving staged criminal conduct to gain the trust of persons suspected of committing a serious crime – On condition that the person tell the gang boss the truth about his prior criminal activity, the gang boss offered that person membership of the gang with concomitant material benefits and the prospect of illegally avoiding prosecution for prior crimes – Whether the resulting confessions were admissible.
Criminal law – Evidence – Confessions and admissions – "Inducement rule" – History of the "inducement" requirement – Whether the promises made to the confessionalists were "inducements" – History of the "person in authority" requirement – Whether undercover police officers posing as gang members were "persons in authority" – Whether a person who represented himself as having the capacity to influence illegally a criminal prosecution was a "person in authority" – Whether a person must be known by the suspect to have actual lawful authority to influence the course of the prosecution to be a "person in authority".
Criminal law – Evidence – Confessions and admissions – "Basal voluntariness" – History of the "basal voluntariness" rule – Meaning of "voluntariness" – Whether the use of deception by the police obviated "voluntariness" – Whether inducements obviated "voluntariness" – Whether in the circumstances the confessionalists' wills were overborne – Relevance of analogy to "duress".
Criminal law – Evidence – Confessions and admissions – Discretionary grounds for exclusion – "Public policy" discretion – Whether the use of deception by the police was improper.
Criminal law – Evidence – Confessions and admissions – Discretionary grounds for exclusion – Unfairness discretion…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Tofilau v The Queen [2007] HCA 39
Case
[2007] HCA 39
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered appeals from convictions arising from confessions made by the appellants to undercover police officers. These officers posed as members of a criminal gang and employed "scenario evidence" techniques, staging criminal activities to gain the suspects' trust. The officers offered gang membership, material benefits, and the prospect of avoiding prosecution for prior crimes in exchange for the suspects confessing their involvement in serious offences.
The central legal issue before the Court was whether confessions obtained through these deceptive police tactics were admissible in criminal proceedings. This required the Court to examine the rules governing the admissibility of confessions, specifically the concepts of "inducement," "person in authority," and "basal voluntariness." The Court also considered whether to exercise its discretion to exclude the confessions on grounds of public policy, unfairness, prejudice, or reliability, given the deceptive methods employed by the police.
The Court reasoned that the traditional rules regarding confessions made to a "person in authority" were not engaged because the appellants did not know or believe they were speaking to police officers or individuals with lawful authority to influence their prosecution. Furthermore, the Court found that the confessions were "voluntarily" made, meaning the appellants' wills were not overborne by the police tactics. The deception employed by the police, while potentially controversial, did not render the confessions involuntary or inherently unreliable. The Court also considered the discretionary grounds for exclusion, but found that the circumstances did not warrant such exclusion.
Each appeal was dismissed, with the majority holding that the confessions were rightly admitted at trial. Kirby J dissented.
Orders
Orders of the court
Each appeal is dismissed. (Kirby J dissenting)
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Even if Clarke were deceived into speaking by the false representations of the police officers as to who they were and as to the extent of the police investigation, which they "overstated"[481], it does not follow that he did not exercise a free choice to speak. Counsel for Clarke submitted: "These inducements followed upon months of calculated manipulations of his personal situation and condition. They included the actual commission of crime."It was submitted that the purpose "of the process was corruption of the legal system". That criticism is false. No crimes were committed. No corruption of the legal system took place. Counsel for Clarke also submitted that the function of the basal involuntariness rule was to operate as a disincentive against undesirable practices of the kind which the police officers had engaged in. The proposition that the police practices were undesirable is questionable. They were in no way unlawful. Whether they were improper in such a manner as to justify discretionary exclusion is a matter for consideration below[482]. [481]R v Clarke [2004] VSC 11 at [79] per Kellam J.[482]Below at [391]-[414].Section 149 of the Evidence Act It may be controversial whether s 149 is capable of applying to evidence which does not offend the inducement rule but is affected by basal involuntariness. Even if s 149 is capable of applying, since it has been contended that basal involuntariness does not arise here, no occasion arises to consider whether in fact s 149 would assist the appellants.Discretionary exclusion Clarke applied towards the end of the first day of hearing to amend his notice of appeal. The new ground contended that the Court of Appeal had "erred in failing to determine that the trial judge had erred in not excluding, in the exercise of his discretion", the admissions made by Clarke to the gang leader. Events at trial. At trial counsel for Clarke (who was not the counsel appearing in the Court of Appeal or this Court) put three arguments to Kellam J: that Clarke was denied the opportunity to exercise his rights; that the manner in which the admissions were obtained placed Clarke at "a massive forensic disadvantage"; and that the nature of the covert operation was such as to require exclusion of the admissions on public policy grounds. Clarke's first argument at trial. The first argument was that the covert operatives denied Clarke any of his rights under the provisions of Pt III Div 1 Subdiv 30A of the Crimes Act. Counsel submitted that the gang boss was dominant in his relationship with Clarke; that in consequence he discouraged Clarke from responding to a police request for a DNA sample; that the "prop" – a supposed progress report into the state of the police investigation – which he supplied Clarke with contained material falsehoods; that he indulged in hectoring, bullying and overbearing behaviour in circumstances where Clarke had not been given the opportunity to be questioned by non-undercover officers; and that he had thus not been able to exercise any of the rights given by those provisions of the Crimes Act.
Decision
Reasons for decision
GLEESON CJ
GUMMOW AND HAYNE JJ
The discretionary arguments were strongly relied on by all appellants at trial and in the Court of Appeal. However, appellate review of judicial discretion, in accordance with the principles stated in Housev The King[26], is not at large. I agree with what is said on the subject in the reasons of Callinan, Heydon and Crennan JJ and have nothing to add.[26](1936) 55 CLR 499.Conclusion The appeals should be dismissed. Undercover police, posing as criminals, tell a murder suspect that, to join their gang and profit from their activities, he must tell their boss the truth about his involvement in the murder. They tell him that, if he does that, the boss can and will make any problems "go away". The undercover police play out various scenarios designed to show the suspect how successful and powerful they are as criminals. Any initial protestations of innocence by the suspect are met with insistence upon the need to tell the truth because charging and conviction are inevitable if the gang's help is rejected. Is the suspect's subsequent confession to those who play the roles of boss and gang members a voluntary confession? This is the central issue that arises in each of these appeals. Although the facts of each case differ in their detail, they raise the same legal issue, and it is to be resolved in the same way. In each case the appellant's confession was rightly held in the courts below[27] to have been made voluntarily.[27]R v Tofilau (2003) 13 VR 1; R v Tofilau (No 2) (2006) 13 VR 28; R v Hill [2004] VSC 293; R v Hill [2006] VSCA 41; R v Clarke [2004] VSC 541; R v Clarke [2006] VSCA 43; R v Marks (2004) 150 A Crim R 212; R v Marks [2006] VSCA 42. There are three separate, but overlapping, inquiries that may have to be made in deciding whether evidence of an out‑of‑court confessional statement is admissible[28]. First, there is the question, commonly described as a question of "voluntariness", presented when the confession in issue was made to someone identified as a "person in authority". Second, there may be the consideration of exclusion of evidence of the confession based upon notions of "basal voluntariness"[29]. Finally, there is the discretion to exclude evidence of the confession for reasons of fairness, reliability, probative value or public policy[30].[28]R v Swaffield (1998) 192 CLR 159 at 188‑189 [50]‑[52] per Toohey, Gaudron and Gummow JJ.[29]McDermott v The King (1948) 76 CLR 501 at 511‑512 per Dixon J.[30]Swaffield (1998) 192 CLR 159 at 188‑189 [50]‑[52], 197 [78] per Toohey, Gaudron and Gummow JJ. The first question, the question of "voluntariness", requires examination of whether the statement in issue was made to a person known or believed by the speaker to be a person in authority. In the present cases, because each appellant neither knew nor believed that those to whom he was speaking were police (or other persons having lawful authority to affect the course of the investigation of or prosecution for the offence to which the confession related) the particular rules about confessional statements to persons in authority were not engaged.