Well, we say the obligation of police to comply with the right to silence, as we've described it, is a duty to comply with that principle.

1. When the Court suggested to counsel that such a proposition converted a right enjoyed by every citizen into a positive duty imposed upon the police, counsel said:

Perhaps duty was not the right choice of word, but we say it [the right to silence] creates for police the requirement to respect - the requirement to not disregard [it].

1. And when the Court drew counsel's attention to Tofilau,[10] and suggested to counsel that the High Court appeared to have given its approval to the use of deception by undercover police to elicit confessions, counsel for the applicant said:

It's not the deception to which we take issue. It's a step before the deception. It's the lack of notice.

1. As best we can determine, three interlinked propositions seemed to underpin the applicant's submissions: first, before employing the scenario technique, the police had an obligation of some kind - counsel abandoned the notion that it was a 'duty' - to 'respect' (or at least, 'not disregard') a suspect's right to silence; secondly, the police could only respect (or not disregard) a suspect's right to silence if they gave the suspect some form of 'notice' that he or she was suspected of a crime and were under investigation; and, thirdly, failure to give such 'notice' amounted to 'improper' conduct.
2. When pressed to identify any authority that supported the contention that police had an obligation to give a suspect some form of 'notice' in a case factually similar to the present, of the 19 cases to which she had referred the Court, counsel was able to point only to the observations of Hamill J in Simmons (No 3).[11] As we will later discuss, however, we consider that Simmons (No 3) provides no support for counsel's contention.
3. To risk repetition, when opening the application in this Court, counsel for the applicant submitted that it raised for determination the interaction of the right to silence with the scenario technique in the accusatorial system of justice. There is, however, nothing new or novel in this.
4. In Tofilau, Callinan, Heydon and Crennan JJ described 'scenario evidence' - confessional evidence obtained by the scenario technique - as follows:[12]

These four appeals raise for consideration the admissibility of 'scenario evidence'. In outline, scenario evidence is confessional evidence obtained in the following way. Undercover police officers pose as members of a gang. They solicit the cooperation of a person whom they think has committed a serious crime, although they do not believe that they are yet able to prove it. They encourage that person to take part in 'scenarios' involving what the person wrongly thinks is criminal conduct. Provided that the person informs the head of the gang of anything which might attract the adverse attention of the police, they offer the person two advantages. One is the opportunity of material gain by joining the gang. The other is the certainty that the head of the gang can influence supposedly corrupt police officers to procure immunity from prosecution for the serious crime. This technique was developed in Canada and evidence obtained pursuant to it there has been held admissible by the Supreme Court of Canada.[13]

1. The privilege against self-incrimination, and with it, the right to silence, developed at a time of great social and political upheaval in seventeenth century England as a reaction to the use of the ex officio oath by judges of the Star Chamber and High Commission to submit suspects to unrestrained and manifestly unfair interrogation. Although arising initially from legislative change in England that brought an end to the prerogative courts, the privilege against self-incrimination and the right to remain silent were entrenched in the common law by the middle of the seventeenth century. And despite arising initially from legislative change in England, they are firmly entrenched in Australian common law. Further, notwithstanding their early origin in the trial context, the privilege against self-incrimination and the right to silence now extend to interrogation by police and other law enforcement officials. Thus, subject to legislative intervention, a criminal suspect may remain silent in the face of police questioning, and may refuse to answer police questions without committing an offence.[14] Generally speaking, however, a suspect has no remedy against interrogation, and does not have the right to insist that the police desist from interrogating him or her.[15]
2. As we have indicated, in the course of oral argument the Court pressed counsel for the applicant to identify the principle that had been breached. In response, counsel submitted that the police did not 'respect a person's right to choose to speak with police with that knowledge, the right to choose to speak'. We note, in that regard, the observations of Lord Mustill in Smith on the 'right to silence':[16]

This expression arouses strong but unfocused feelings. In truth it does not denote any single right, but rather refers to a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute. Amongst these may be identified:

(1) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies.

(2) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them.

(3) A specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind.

(4) A specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock.

(5) A specific immunity, possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority.

(6) A specific immunity (at least in certain circumstances, which it is unnecessary to explore), possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial.

1. Gleeson CJ cited Lord Mustill's opinion in Tofilau. In passages which put the sword to the notion advanced by the applicant's counsel concerning the purported obligation of police to give 'notice' to a suspect, Gleeson CJ said:[17]

References were made in argument to the appellants' 'right to silence', and to the effect on that right of the techniques adopted by the undercover police. As Lord Mustill pointed out in R v Director of Serious Fraud Office; Ex parte Smith, that expression 'refers to a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute'. It is not a single principle. It is a convenient shorthand reference to a collection of principles and rules, some substantive and some procedural. If it is said that there has been an infringement of a person's right to silence, then it is usually necessary to identify the particular legal rule involved and to explain the nature of the infringement by reference to that rule. The tendency in argument in the present case was to use the shorthand description to create an aura of inviolability around the appellants' guilty secrets, and then to take the further step of characterising the tricking of the appellants into deciding to reveal those secrets as an overbearing of the will.

In answer to this line of reasoning it must again be observed that many forms of undercover police activity, and of covert surveillance, involve attempts to gain information from people who, if they were aware of what was going on, would remain inactive or silent. There is a sense in which it can be said that intercepting a telephone conversation, or secretly recording an interview, always deprives a person of the opportunity to remain silent in circumstances where, if the person had realised that he or she was under observation, the person would have remained silent. That does not mean that there has been an infringement of one of the legal rules which together make up the right to silence. Nor does it mean that what is being said in the conversation is involuntary. The argument seems to equate the right to silence with a right of privacy, and to treat as involuntary any statement that is made without a fully-informed appreciation of the possible consequences. Neither step is consistent with legal principle.

1. In one of the four cases that the High Court dealt with in Tofilau, Clarke v The Queen, Clarke had been convicted of the murder of a six-year-old child in December 1982. Police spoke to Clarke on several occasions in the ensuing months, but he was not formally interviewed. Although the initial investigation was unsuccessful, police resumed work on the case in February 2001. From March 2002 undercover police officers staged a series of scenarios with Clarke, culminating in him making (filmed) admissions to an undercover officer, whom he believed to be the boss of the gang he was seeking to join. He then made admissions in a video-recorded interview with non-undercover officers.
2. Callinan, Heydon and Crennan JJ, in their joint reasons for judgment, summarised aspects of the submissions made by Clarke's counsel - which appeared to have been echoed in the present case by the applicant's counsel - as follows:[18]

The appellants submitted 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'. It was the essence of scenario evidence that 'the appellants in each case had to be denied their fundamental rights'. In particular, counsel for Clarke submitted: 'Naturally [Clarke] was not afforded any protective rights; they were and indeed, had to be, deliberately circumvented in order to achieve the sole purpose of extraction of the confession.'

1. The submissions referred to above were rejected by Callinan, Heydon and Crennan JJ for a number of reasons, including[19] that

when police officers, pursuant to judicial warrant, listen to telephone calls made by others, they may obtain evidence of admissions which they could not have obtained by the process of interviewing. Yet the surveillance evidence is admissible. So is confessional evidence obtained by eavesdropping.

1. Importantly, earlier in their joint reasons, when considering an argument that the police officers in Tofilau, employing the scenario technique to obtain admissions, 'did indirectly what they could not have done directly', Callinan, Heydon and Crennan JJ had made it clear that there was no duty to warn those against whom the scenario technique was employed 'about their right to silence'.[20]
2. Finally, when dealing with the discretionary exclusion of Clarke's confession - which they held to be voluntary - Callinan, Heydon and Crennan JJ (among other things) said:[21]

Counsel for Clarke said that three further factors were relevant. One was that the conduct was encouraged or tolerated by those in higher authority: plainly it was. Another was that the conduct was inconsistent with a right of Clarke's which was fundamental, namely the 'right to silence'. That submission must be rejected in view of the conclusions reached above that the admissions were voluntary and that Clarke saw himself as having a choice which he exercised for his own purposes. That is, he had a right to silence but he chose not to exercise it.

1. The available evidence in the present case establishes that two covert operatives, one of whom was CO300, were placed in the cell with the applicant, for the purposes of developing a rapport with him. Later that day, presumably as part of the process of developing a rapport, the covert operatives gave the applicant a lift home, informing him on the way that they were associated with a criminal organisation and that, if the applicant was interested, there might be some work for him. The applicant gave them his contact details. CO300 (or 'Solomone') thereafter was in regular contact with the applicant and involved him in a number of fictitious criminal scenarios for which the applicant was well renumerated. Significantly, one of the scenarios involved CO300 telling the applicant that he was going to the Police Forensics Centre to pay off a scientist. That prompted the applicant to ask Solomone whether, in the event that he had a big case, forensic evidence could be removed, and for Solomone to say that he would have to speak to Kosta about it.
2. It was only after a three month period of Solomone building trust with the applicant that, on 11 March 2022, he and the applicant went to a park in Noble Park, and the applicant told Solomone that he was going to get something off his chest that he had never told anyone before. The applicant then volunteered that he had been involved in the planning and execution of the home invasion of Mr Habiyakare's residence, and that he had shot him. Importantly, these admissions were, as we have said, volunteered, and were not the result of any hectoring or other pressure brought to bear by CO300. Similarly, the admissions made to Kosta later that day were volunteered; and, although Kosta at times asked questions to clarify aspects of the applicant's version, no compulsion or pressure was exercised by covert police in order to elicit the admissions.
3. In our opinion, the central proposition underpinning the applicant's grounds 1, 3, 5 and 6 is wholly untenable. No support whatsoever can be found in the authorities for the notion that, before they employ the scenario technique, in order to 'respect' (or at least, 'not disregard') his or her right to silence, police are under an obligation to give a suspect notice that he or she is suspected of a crime and is under investigation. Indeed, the decision in Tofilau constitutes an insurmountable obstacle in the way of acceptance of that proposition. An examination of the reasoning in Tofilau makes plain that the majority did not consider that the validity of the scenario technique, employed in the four cases there under consideration, depended upon the appellants having earlier been given some form of 'notice' by police; or, more specifically, upon the appellants having earlier been informed by police of their right to silence.
4. As we have mentioned, when pressed to provide authority to support the 'notice' proposition, the applicant's counsel relied (solely) on Simmons (No 3). In our view, however, nothing in that case lends the notice proposition any support. In that case, Anthony Simmons was charged with murder, and his co-accused, Kieran Moore, with being an accessory after the fact. Hammil J ruled that confessional statements made in the course of a police operation of the kind considered in Tofilau were admissible against Simmons. Subsequently, Hammil J had to consider objections raised by Moore, under ss 90 and 138 of the Evidence Act 1995 (NSW), with respect to indirect admissions that he made in the course of conversations with a police agent.
5. Moore sought the exclusion of evidence of conversations between him and a witness, Jodi Biles, which occurred at a psychiatric hospital in which he was an involuntary patient. Two conversations containing indirect, damaging admissions, recorded covertly by police pursuant to a warrant issued under the Surveillance Devices Act 2007 (NSW), were relied upon by the prosecution. The bases of Moore's objection were that the evidence was unlawfully or improperly obtained (within the meaning of s 138), and that it was unfair to use the evidence in view of the circumstances in which the statements were made (animating s 90). Moore contended, first, that the police misled the judge who issued the warrant authorising the use of the listening devices; and, secondly, that it was unfair to use the witness Jodi Biles as an 'agent of the state' to elicit admissions from him.
6. Hammil J rejected the first objection concerning the warrant, but upheld the second objection. Ms Biles, who had no connection with Moore other than an acquaintanceship with Simmons, visited Moore at the psychiatric hospital at the behest of police and as their 'agent'. Among the matters that led Hammil J to exclude the content of the conversations under s 90 were: first, Moore was an involuntary patient at a psychiatric hospital in recovery from a severe psychotic illness; secondly, Ms Biles observed Moore to be 'different mentally'; thirdly, prior to arranging for Ms Biles to be 'deployed', police made no inquiries concerning Moore's mental health; fourthly, Ms Biles was engaged as an agent of the police investigators and persistently sought to elicit admissions from Moore in the face of his denials, so that the conversation was the functional equivalent of an interrogation; fifthly, Moore had not been advised of his right to silence and not previously been approached by police for the purpose of conducting a recorded interview or obtaining a statement from him; and, sixthly, Moore exercised his right to silence when arrested.[22]
7. Plainly, the factual circumstances of Simmons (No 3) bear little resemblance to those in the present case. The admissions to Ms Biles were not elicited by employing the scenario technique. A combination of factors led Hammil J to exclude Moore's admissions under s 90. Moore was recovering from a psychotic illness as an involuntary patient when Ms Biles was engaged as an agent of the police to deliberately elicit admissions from him in a conversation that was the functional equivalent of an interrogation conducted without a caution. Nothing in the case supports the notion that, prior to employing the scenario technique, so as to 'respect' (or 'not disregard') a suspect's right to silence, police must provide notice that he or she is under suspicion or investigation.[23]
8. We need not discuss the authorities dealing with the operation of s 90 in any detail. Recently, in Headland,[24] the Court, having referred to salient aspects of the High Court's judgment in Em,[25] and this Court's judgment in Myles,[26] summarised the position as follows:[27]

As the authorities make clear, the application of s 90 is 'highly fact-specific'. The focus must be upon the circumstances in which the impugned admission was made, and the way in which those circumstances would render the use of the evidence of the admission unfair to the accused at trial. That is, the focus of s 90 is upon the fairness of using the evidence at trial, not directly upon characterising the circumstances in which the admission was made - including the manner in which it was elicited - as fair or unfair. Consideration must be given to whether there is some aspect of the circumstances in which the admission was made that reveals why it would be unfair to use the evidence of the admission in the trial of the person who made it.

1. In our opinion, there was nothing in the manner in which the applicant's admissions were obtained that would render the use of the evidence unfair to him at trial. It is plain that the police did not coerce the applicant into getting things off his chest. He did not have to tell the covert police the things he did. His admissions to Solomone and Kosta were made to individuals whom he trusted. Quite clearly, in our view, the applicant's admissions were made in the exercise of a free choice whether to speak or to remain silent, in circumstances where the police were under no obligation to give the applicant notice that he was a suspect. Indeed, we regard the fact that he was not put on notice that he was under suspicion to be utterly irrelevant. That the applicant was deceived into thinking that he was divulging secrets to trusted individuals cannot, in the circumstances of this case, engage s 90. The police conduct in failing to give the applicant the 'notice' purportedly required, was not improper, so that s 138 has no application. And quite clearly, the probative value of the impugned evidence far outweighs any risk of unfair prejudice, so that s 137 is not animated. As to that, we consider that any risk of rank propensity reasoning will be amenable to acceptable amelioration by judicial direction.
2. Grounds 1, 3, 5 and 6 must fail.
3. Turning to proposed grounds 2 and 4, in oral submissions with respect to ground 2 counsel for the applicant submitted that

the aim of the cell deployment was more than just rapport building. It was to elicit information as to the suspect's participation, if any, in the homicide either during that cell deployment or thereafter by way of scenario technique.

...

We say it's not open to have found as a matter of fact as the judge did on the evidence that we've referred this court to and the evidence that was before his Honour below that the aim of the cell deployment was just rapport building.

...

Ground 2 is about what we say [is] a factual error in determining what the aim of the cell deployment was, for it in effect meant that the standard operating procedure didn't have application. We say the factual finding regarding that aim is wrong ...

1. Ground 2 may be shortly disposed of.
2. As was recently made clear by the High Court in GLJ,[28] the standard of appellate review that this Court must apply, in cases 'where there is but one legally permissible answer',[29] is the 'correctness standard' described in Warren v Coombes.[30]
3. On the evidence, we consider that the judge's conclusion that the purpose of the cell deployment was rapport-building was correct. Counsel for the applicant argued that the only inference that could be drawn is that the cell deployment (and subsequent events) was that it was directly connected with eliciting admissions for the purposes of the murder investigation. As did the judge, however, we consider that the preponderance of evidence supports the inference that the purpose of placing CO300 (and the other covert operative) in the cells with the applicant was to establish a relationship with him, rather than to endeavour to provoke admissions from him. As to that, we regard it as highly improbable that a person in the position of the applicant would likely make spontaneous admissions concerning a home invasion and unlawful killing to individuals that he had only just met; or more importantly, that police considering the cell deployment could reasonably have expected that he might.
4. Further, the fact that a plan to involve the applicant in scenarios was in place by the time that CO300 and the other covert operative were placed in the cell supports the inference that the immediate aim of the cell deployment was not an attempt to obtain admissions. That inference is also supported by the fact that the covert operatives did not at that time ask any questions about the home invasion. Instead, CO300 exercised a deal of patience over months until, after the desired rapport and trust had been established, the applicant felt comfortable enough to get off his chest to Solomone (and then Kosta) his part in the home invasion and shooting.
5. Plainly, in our view, the aim of the cell deployment was not specifically to obtain admissions prior to interview. We therefore agree with the trial judge that the SOP was not infringed.
6. Ground 2 is without substance.
7. Moreover, ground 4 - which counsel for the applicant explained as follows - is also without merit:

Ground 4 is really for completeness, it's we submit a gateway in terms of the question of leave and it's a matter of form.

We say that the reasons refer to the right to silence ... in relation to the free choice in the context of voluntariness, but they don't expose a conclusion as to whether the right to silence in this case was circumvented in the way we've described in connection with ground 1, 2 and three.

1. In our view, on a proper reading of the trial judge's reasons, he did not solely confine himself to a consideration of whether the right to silence had been circumvented by or during the cell deployment. Moreover, the judge made it plain that, in his view, the right to silence had not been circumvented because any admissions that the applicant made were made freely. Hence, when dealing with the issue of whether the SOP had been breached, the judge said:[31]

Although the common law right to silence is a fundamental right, the accused was not interrogated in the cells or during the subsequent covert operation. It seems to me that at all relevant times, he was free to speak or not to speak, and that, because he perceived it was in his self-interest to speak, he freely chose to make the impugned admissions. The gravity of the (assumed) impropriety of the cell deployment (and/or the subsequent deployment) was not high.

1. For these reasons, we concluded that the application for leave to appeal against the interlocutory decision should be refused.

[2] We were informed during the hearing that, due to a lack of evidence, Alula Tegegne was not charged.

[3] [(2007) [2007] HCA 39; 231 CLR 396]. The [applicant] was not able to point to a single scenario case where the impugned evidence of admissions was excluded.

[4] R v Swaffield; Pavic v The Queen (1998) 192 CLR 159, 185-6 [35] ('Swaffield'). (Footnotes as in original.)

[5] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 75, per Stephen and Aickin JJ.

[6] R v Lee [1950] HCA 25; (1950) 82 CLR 133 at 152.

[7] Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396, 403 [5] ('Tofilau').

[8] The 19 cases were: Tofilau; Swaffield; Em v The Queen [2007] HCA 46; (2007) 232 CLR 67; R v Roba [2000] VSC 96; (2000) 110 A Crim R 245 (Coldrey J); R v Dewhirst [2001] VSC 172; (2001) 122 A Crim R 403 (Coldrey J); R v Chimirri [2002] VSC 555; (2002) 136 A Crim R 381 (Osborn J); R v Favata [2006] VSCA 44 (Callaway, Buchanan and Vincent JJA); Lauchlan v Western Australia [2008] WASCA 227 (Buss and Miller JJA and Murray AJA); R v Weaven (Ruling No 1) [2011] VSC 442 (Weinberg JA); R v Drummond (Ruling No 1) [2013] VSC 70 (Osborn JA); R v Simmons; R v Moore (No 2) [2015] NSWSC 143; (2015) 249 A Crim R 82 (Hamill J); R v Simmons; R v Moore (No 3) [2015] NSWSC 189 (Hamill J); R v Fesus (No 2) [2015] NSWSC 1467 (Wilson J); R v Wichman [2015] NZSC 198; [2016] 1 NZLR 753 (Elias CJ, William Young, Glazebrook, Arnold and O'Regan JJ); R v Cowan; ex parte AG (Qld) [2015] QCA 87; [2016] 1 Qd R 433 (McMurdo P and Fraser JA); R v Jelicic [2016] SASC 57 (Peek J); Deacon v The Queen [2019] NTCCA 21; (2019) 282 A Crim R 303 (Grant CJ, Southwood J and Riley AJ); Sidaros v The Queen [2020] ACTCA 11; (2020) 15 ACTLR 64 (Burns, Elkaim and Loukas-Karlsson JJ); R v Kilincer (No 2) [2021] NSWSC 829 (Johnson J); and R v Rumsby [2023] NSWSC 229 (R A Hulme J).

[9] The cases referred to in argument were Tofilau and R v Clarke (one of the three cases dealt with by the High Court at the same time as Tofilau).

[11] R v Simmons; R v Moore (No 3) [2015] NSWSC 189, [95] ('Simmons (No 3)').

[13] Evidence obtained by a similar technique was admitted in R v Todd (1901) 13 Man LR 364. The Manitoba Court of Appeal admitted scenario evidence in R v Unger (1993) 83 CCC (3d) 228. In R v Hodgson [1998] 2 SCR 449 at 475 [36] a test was stated which, if correct, rendered the evidence admissible ... The Supreme Court of Canada reaffirmed the test specifically in relation to scenario evidence after the trials in the present appeals had taken place, and held that type of evidence admissible: R v Grandinetti [2005] 1 SCR 27. There are rulings of trial judges other than those under challenge in these appeals permitting the reception of scenario evidence, but they did not turn on the question of whether there was a person in authority: Director of Public Prosecutions (Vic) v Ghiller [2003] VSC 350; (2003) 151 A Crim R 148; R v Favata [2004] VSC 7 (an appeal against conviction being subsequently allowed on other grounds in R v Favata [2006] VSCA 44); Western Australia v Lauchlan [2005] WASC 266.

[14] See Crimes Act 1958 (Vic), s 464J; Crimes Act 1914 (Cth), s 23S.

[15] See Crimes Act 1958 (Vic), ss 464A(2), 464I; Crimes Act 1914 (Cth), ss 23C, 23DB.

[16] R v Director of Serious Fraud Office, Ex parte Smith [1993] AC 1, 30.

[17] Tofilau, 409 [20]. (Footnotes omitted; emphasis added.)

[23] We note that Hamill J made a number of observations in R v Simmons (No 2) [2015] NSWSC 143; (2015) 249 A Crim R 82, when ruling scenario evidence against Simmons to be admissible, that do not support the present applicant's case. See 94 [60], 95-6 [65], 96-7 [65], 114-5 [130].

[24] Headland (a pseudonym) v The Queen [2023] VSCA 174 (Emerton P, Priest and Kennedy JJA) ('Headland').

[25] Em v R [2007] HCA 46; (2007) 232 CLR 67.

[26] DPP v Myles [2021] VSCA 324, [25]-[29] (Priest, T Forrest and Walker JJA).

[28] GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 ('GLJ').

[29] GLJ, 866 [16]. See also Moore (a pseudonym) v The Queen [2024] HCA 30, [26].

[30] [1979] HCA 9; (1979) 142 CLR 531, 552 (Gibbs ACJ, Jacobs and Murphy JJ).