Crown v Accused

1 DT ('the accused') is charged with child homicide.[1] It is alleged that on or about 29 November 2017 he killed Oscar, a child aged under six years. Oscar was the accused's biological son. He was 26 days old at the time of his death.

2 Senior counsel on behalf of the accused applies to exclude evidence of what his client said to a doctor and a child protection practitioner in the hours after the alleged incident that caused Oscar's death. Counsel also applies to exclude evidence of what was said by the accused to an undercover operative posing as a journalist almost 12 months after the alleged incident. Before turning to the applications in detail, it is convenient to summarise the prosecution case, including the contested evidence.

3 The accused and MH met and commenced a relationship in January 2014. In February 2015, their first child, Christopher, was born. On 3 November 2017, their second child, Oscar, was born. At this time, the couple resided in MH's house in [redacted] ('MH address'). Oscar was a healthy baby, and MH and Oscar were discharged from hospital on 6 November 2017. Two weeks later, a maternal health nurse found Oscar to be a completely normal baby. The nurse had no concerns with Oscar, MH or the accused.

4 On 27 November, the accused and MH spent the day at home with their children. Two-year-old Christopher, who had a set nightly routine, was put to bed by the accused at 7:00pm. At around 7:30pm, Oscar woke. He was fed, changed and returned to his cot, which was in the master bedroom. Oscar was unsettled. He slept briefly, then woke up crying and suffering from wind. The accused changed his nappy, after which MH settled him and returned him to his cot.

5 At around 11:30pm, the accused and MH were still awake when Oscar woke and started to scream and cry, consistent with how he would behave when he had wind. In response, MH picked Oscar up. He stopped screaming, but he was still unsettled and crying. The accused got up and changed Oscar's nappy, but Oscar remained unsettled. MH tried unsuccessfully to settle him for about five minutes. She and the accused then decided she should prepare his next feed, so MH handed Oscar to the accused. MH observed that Oscar was lying on his back and facing upwards when she handed him to the accused, who said something similar to 'come here buddy' and cradled Oscar in his arms in front of his chest. According to MH, Oscar's behaviour on this night was no different to any other night when he woke with wind, and apart from being grizzly and unsettled, he was normal when she handed him to the accused.

6 MH left the bedroom, went to the kitchen and commenced preparing a bottle. No more than a few minutes passed when the accused came out of the bedroom with Oscar in his arms. He looked very worried and said, 'I think there is something wrong with Oscar'. The accused turned the baby to face MH; Oscar's eyes were half open and he was floppy. The accused suggested they call an ambulance.

7 At 12:25am on 28 November 2017, MH called triple zero and requested an ambulance. She reported that her three‑week‑old son, who had been screaming and screaming, had just made 'a funny noise' and 'gone totally limp'. MH said that her son's breathing was very faint before passing the phone to the accused. The accused said that Oscar was 'really struggling to breathe', and when a period of time passed without Oscar taking a breath, the call taker instructed the accused and MH to commence CPR.

8 The accused and MH performed CPR on Oscar in accordance with the instructions given to them for about seven minutes before ambulance paramedics Sebastian Kalinowski and Sarah Jane Piper arrived at 12:36am. The paramedics observed Oscar to be unresponsive with a Glasgow Coma Scale score of 3/15. Further paramedics arrived, and Oscar was observed to be in cardiac arrest. At 1:31am, Oscar was transported by ambulance to the Royal Children's Hospital.

9 The accused told paramedic Sebastian Kalinowski that Oscar was unsettled that night. The accused stated that he was holding the child in his arms, in preparation for feeding, when the child became unresponsive. He stated that he rushed to the kitchen to alert Oscar's mother. According to paramedic Sarah Jane Piper, the accused stated that Oscar was unsettled that night. He said he was holding the child in his arms while his wife prepared to feed him when the child coughed, and became limp and unresponsive in his arms. He stated that he rushed to alert Oscar's mother. The statements made by the accused to both Sebastian Kalinowski and Sarah Jane Piper will be led by the prosecution at trial and without objection.

10 Dr Tracey Wraight, ICU Registrar, was part of a team who assumed responsibility for Oscar's care on the morning of 28 November 2017. During the course of the day, Dr Wraight received a formal report that the CT scan showed severe brain injury that was 'concerning for non‑accidental injury'. As a result, Dr Wraight made a referral to the Victorian Forensic Paediatric Medical Service ('VFPMS') for a forensic medical examination of Oscar. According to the VFPMS Intake Form, the referral was made at 13:00 hours. Dr Wraight stated the concern for non‑accidental injury was a 'suspicion and not a certainty at this time'. As results returned throughout the day, the level of suspicion increased, particularly once the extensive level of retinal haemorrhages was reported. However, further discussions around these concerns with the parents 'were left to the VFPMS team', with the ICU team focussed on Oscar's medical status and care.

11 On 28 November 2017, at around 4:30pm, Dr Maryanne Lobo of the VFPMS conducted an examination of Oscar and an assessment of the events leading up to Oscar's presentation at the Royal Children's Hospital. In the course of this assessment, Dr Lobo spoke with both the accused and MH, who between them provided certain information.

12 Dr Lobo personally examined Oscar, and considered various scans and imaging that had been conducted. In conclusion, and prior to Oscar's death, she concluded that the injuries were strongly suggestive of non‑accidental head injury. As a result of Dr Lobo's findings, the Department of Health and Human Services - Child Protection ('Child Protection') were notified that Oscar had sustained a suspected non‑accidental injury. Consequently, Child Protection contacted Detectives Miller and Declase from Bendigo Sexual Offences and Child Investigation Team ('SOCIT'). Subsequently and at the Royal Children's Hospital, in the presence of MH's father and a social worker, the accused and MH were spoken to by Detectives Graham and Hartwig from Fawkner SOCIT. According to the Summary of Prosecution Opening, 'police were unable to obtain statements concerning the night's events from either MH or the accused, as they were visibly distraught and expressed their wish to remain with the deceased'.[2] According to a Child Protection Confidential Court Report, the parents had contacted lawyers who had advised them not to talk to police.[3] It is unclear when this occurred, but seems it occurred later in the evening of 28 November, after Dr Lobo had spoken with the parents but prior to the accused returning home.[4]

13 At 10:50pm, the accused returned to his home address while MH remained at the hospital with Oscar. When the accused arrived, Child Protection practitioners Joshua Sherman and Vivian Cooper were already present in the home, having been granted entry by the accused's sister‑in‑law and her husband, who were in the house caring for Christopher. The accused expressed his willingness to speak with the Child Protection practitioners, and was asked what happened in relation to Oscar. At 11:25pm, the interview between Child Protection and the accused ended.

14 On Wednesday 29 November at 1:45pm, Oscar was pronounced brain dead. He was maintained by artificial means to allow for organ donation, which occurred at 10:14am on Thursday 30 November.

15 A post-mortem examination of Oscar was conducted on 30 November 2017 by Dr Bedford. On 19 December 2017 and 8 January 2018, a further examination of Oscar's brain was conducted by Dr Linda Iles. On 11 January 2018, Associate Professor Dr McKelvie conducted an examination of the deceased's eyes. Based upon all examinations, analysis and testing conducted, Dr Bedford determined the cause of death to be that of injury to the head, with the injuries to the head considered to be indicative of non‑accidental injury with a special note of 'subdural haematoma, retinal haemorrhages and hypoxic ischaemic brain injury'. These three clinical injury types are commonly referred to as 'the triad', and are said to be consistent with non‑accidental abusive head trauma or 'shaken baby syndrome'.

16 In early 2018, MH became pregnant to the accused. They separated shortly after this, but remained amicable. Their third child, [redacted], was born 18 September 2018. The accused moved in with MH shortly before the birth, and moved out again around late October or early November 2018. When not at the MH address, the accused was residing in Macedon ('Macedon address').

17 On 19 March 2018, the accused attended upon a general practitioner, Dr Chifura. This was the first time the accused had consulted Dr Chifura, although he regularly attended the practice. The accused reported to Dr Chifura that he had lost his three week old baby after accidentally dropping him on the floor.

18 Dr Bedford's autopsy report was released on 17 July 2018. On 15 August 2018, homicide squad members Detective Squires (the Informant) and Detective Densley spoke with the accused at the [redacted] police station. The accused was not cautioned and was secretly recorded. He told the detectives that nothing happened that night, and he cannot understand how Oscar came to be injured. The prosecution do not seek to lead this evidence.[5]

19 In September 2018, warrants were issued pursuant to the Surveillance Devices Act 1999 (Vic) ('Surveillance Devices Act') and a listening device was installed at the Macedon address. Telephone intercepts were also placed on the mobile telephones of MH and the accused.

20 On 25 October 2018, Victoria Police Covert Operative 306 ('CO 306'), posing as a journalist 'Adam', attended at the accused's Macedon address (by this time, [redacted] had been born and the accused was no longer living with MH). The accused repeated the account he had given to the paramedics, Dr Lobo and the Child Protection practitioners - that is, he was holding Oscar when Oscar just went limp.

21 On 28 October 2018, the accused was arrested and interviewed. The accused answered largely 'no comment', but did state that he had no reason at all to suspect that MH had done anything to Oscar; that he was quite sure about that; and that he had never seen MH mistreat Oscar.

22 The accused's statement to Dr Chifura encapsulates his defence. The defence will argue that the accused accidentally dropped Oscar, and will call expert evidence. It is anticipated the defence expert will state that it is reasonably possible for the constellation of injuries seen in this case to be the result of an accidental fall from a limited height, such as from a carer's arms. Thus, the accused admits causing Oscar's death, but denies he assaulted, shook or otherwise physically abused his son.

(a) The evidence of what the accused said to Dr Lobo on the afternoon of 28 November 2017 at the Royal Children's Hospital ('Dr Lobo interview') is inadmissible pursuant to ss 85, 138 and/or 90 of the Evidence Act 2008 (Vic) ('Evidence Act');

(b) The evidence of what the accused said to the Child Protection practitioners late in the evening of 28 November 2017 at the MH address ('Child Protection interview') is inadmissible pursuant ss 85, 138 and/or 90 of the Evidence Act; and

(c) The evidence of what the accused said to CO 306 on 25 October 2018 ('Covert Operative conversation') is inadmissible pursuant to ss 85, 138, 137 and/or 90 of the Evidence Act.

24 Before dealing with the arguments of counsel, it is necessary to outline the challenged evidence in more detail.

25 Dr Lobo examined Oscar in the ICU between 4:30pm and 7:30pm. Shortly before 5:00pm, MH signed the VFPMS Assessment Consent Form[6] ('Consent Form'). It is unclear at exactly what time Dr Lobo spoke with the parents, but it seems it was shortly after the Consent Form was signed. A social worker, Shanti Petronzio, was present.[7] The conversation was not audio or video recorded.

26 Dr Lobo spoke with MH and the accused together, but her statement mostly differentiates between answers given by MH, and answers provided by the accused. Relevantly, according to Dr Lobo, the accused said that after MH left the bedroom, he continued to walk up and down trying to settle Oscar. When asked how he held Oscar, he demonstrated that he held Oscar out in front, supported by both hands, with Oscar's feet against his (the accused's) trunk. MH queried this, and the accused then replied that he had carried Oscar cradled in both arms in front of his (the accused's) chest. The accused stated that after a couple of minutes, 'Oscar burped and farted. He then sort of took a breath and went "ha ahhh" ... and went very limp. I felt something wasn't right and rushed out to see MH in the kitchen with him and I said something was not right and he was limp, had no energy and was lethargic'.[8] Dr Lobo asked what time Oscar had suddenly become limp, and the accused replied, 'around midnight'.[9] Dr Lobo stated that, '[the accused] and MH denied recent head injury to Oscar and also said that he had not been hurt by Christopher. [The accused] said, "we are so gentle with him."'

27 The prosecution seek to rely on the statement - 'after a couple of minutes, Oscar burped and farted. He then sort of took a breath and went "ha ahhh" ... and went very limp' - as an implied admission. The Crown argue that it is a lie, and was told by the accused because he was aware he had caused his son's death in a non‑accidental manner.[10]

28 The defence do not dispute it is a lie, but the truth is that the accused accidentally dropped Oscar.

29 A statement of Vivian Cooper was taken on 29 March 2024, more than six years after the events in question. Joshua Sherman has not made a statement and his original handwritten notes are unavailable. Ms Cooper read the typed notes of Mr Sherman prior to making her statement.

30 Ms Cooper stated that she has worked for the (now) Department of Families, Fairness and Housing since 2003. In November 2017, she was performing the role of Team Manager in the Case Support Contact and Transport team. Her duties included supervising staff; scheduling contact between parents and children in care; and ensuring those contacts occurred in a safe environment. On the night of 28 November 2017, she was rostered on as a secondary worker for the After Hours Child Protection Service ('AHCPS'). Mr Sherman was the primary after‑hours contact. At 7:45pm, they were contacted and asked to conduct a safety check on Christopher. She stated that they were informed that Oscar had presented at the Royal Children's Hospital with a suspected non‑accidental head injury, but she also stated that 'it was reported to us by the after‑hours that Oscar had sustained a non‑accidental head injury'. As a result, it was 'imperative' for her to ascertain who was caring for Oscar at the time he became unwell, as this would assist in the management and safety planning for Christopher. She stated that their investigations were not solely focussed on Christopher; they were also focussed on Oscar, given he was still alive, so it was an '"open case" so to speak'. She stated she is careful to remain open minded and unbiased, and does not draw any conclusions as to who may be responsible prior to undertaking investigations.

31 She and Mr Sherman arrived at the [redacted] police station at 9:45pm, however SOCIT had left. They established that neither SOCIT nor the Homicide Squad would be conducting any further investigations that evening.

32 Ms Cooper and Mr Sherman arrived at the MH address at 10:20pm and spoke with MS (MH's sister) and her husband. The accused arrived home at 10:05pm.[11] He presented as upset but willing to speak with Child Protection. Ms Cooper clearly explained their 'role and mandate'. Assuming Ms Cooper told the accused what she had told MS and her husband, Ms Cooper told the accused that they had received a report concerning Oscar; they were at the home to assess the safety of Christopher; they would be taking notes; and that the notes could be used in court at a later date if required as evidence. Ms Cooper maintained the role of 'lead interviewer', with Mr Sherman as note taker.

33 Ms Cooper stated that she asked open ended, non‑leading questions. MS and her husband remained present throughout the interview. The accused told her that the first time he noticed Oscar was unwell was after MH had gone to the kitchen to prepare a bottle, leading Ms Cooper to believe that the accused was the only parent with Oscar when he became unwell. Ms Cooper stated:

I then asked if he had any knowledge as to how Oscar suffered any injuries, he couldn't explain how the injury occurred. As this was a joint investigation with police, it was not for me to ask [the accused] to elaborate or for me to continue questioning him about Oscar's injuries. It was also not the purpose of our visit.

34 Ms Cooper stated that she specifically remembers the accused saying he was holding Oscar at the time Oscar became unwell, and MH was out of the room in the kitchen. He said he was holding Oscar, walking up and down and patting him on the back, when Oscar all of a sudden burped and farted, before taking a shallow breath and going limp. The accused went on to say that Oscar's head dropped, his eyes closed and his arms went limp.

35 In evidence in chief, Ms Cooper said that when she interviewed the accused on 28 November 2017, she was a protective intervener and exercising her powers under s 205 of the Children, Youth and Families Act 2005 (Vic) ('CYFA'). She was also an authorised officer pursuant to s 194 of that Act.[12] Given six years has passed, she cannot recall everything, and gave evidence as to what she 'would have' done and said. She said they 'would have' discussed the reason for the visit, and discussed that there had been a protective intervention report made to Child Protection. She recalls she told the accused they were there to discuss the report, and 'would have let him know some of the details of that report ... as much as we knew at the time'.[13] She said that he appeared to understand what she was saying, but he would have been very upset, which is why they leave an Information Sheet at the end of the visit.[14]

36 Ms Cooper did not advise the accused that he did not have to answer their questions. Mr Sherman took notes; she cannot be sure everything in them is correct, but they would reflect the conversation they had with the accused. Mr Sherman typed the notes onto their system before he left for the night, and she recollects checking his entries to make sure they were accurate.

37 The purpose of their attendance was to do a safety assessment for Christopher, but they also had an 'open file' on Oscar because he was still alive. They knew Oscar was being cared for in hospital, and their primary concern was to ensure that Christopher had no sign of injuries and that his safety and care needs could be met. At the point of their attendance, it was a joint investigation with the police. She was asked what she meant by 'joint investigation', and said police would decide if there was to be a criminal investigation into Oscar's injuries. Child Protection would determine if a care and protection application should be made. They work under different Acts and have different functions.

38 Ms Cooper said if they know police are also doing an investigation, they would normally provide the first home visit notes to police, even if the person they were interviewing said nothing of interest. She believes the first home visit notes in this case would have been passed on to police in accordance with usual practice. She was asked why she told the accused that any notes 'could be used in a court of law', and said they would mainly be used in the Children's Court if a protection application is made, but 'it can be for criminal charges as well'.[15]

39 In cross-examination, she agreed that the interview was not recorded in any way, and the accused did not have a lawyer present. She said that prior to attending, Child Protection and the police were sharing information, and this is not unusual when a child is injured and in hospital. Oscar was in hospital and 'safe' within the meaning of the CYFA, and their concern was whether Christopher was safe remaining at home. She agreed that prior to attending, she had read the intake report and the inference was that there had been a non‑accidental injury to Oscar. She said she probably should not have used the expression 'had sustained a non‑accidental injury' in her statement. She did not speak with Dr Lobo herself.

40 She agreed her role was to investigate in relation to Christopher. Because it was a joint investigation, they were coordinating with police and would provide their report to police. Her main purpose was under the CYFA. She does not believe she would have told the accused that what he said may be provided to police. She would have said that the notes could be provided to a court, meaning any court.

41 She was shown the Information Sheet, which is headed 'When child protection workers visit'. She confirmed that her practice was to provide this Information Sheet after the questioning was completed.[16] She did not believe she told the accused, prior to speaking with him, that he had the right to legal advice. She did not believe she would have told him that he did not have to answer questions; their practice is to ask if they want to answer questions. She does not believe she would have told the accused that it is better if he cooperates and gives accurate information.

42 In re-examination, she said that if a person in the position of the accused refused to allow them to examine Christopher, or refused to answer questions, they would leave. She said that on this night, they had not expected the accused to come home, and when he did he 'would have been' invited to participate.

43 According to the statement of Detective Declase, who was working for [redacted] SOCIT at the time, MS had been contacted around 8:00pm and advised she had to leave the house, as police would be attending and a crime scene established. As a result, MS woke Christopher and drove him to the police station. Meanwhile police, including Detective Declase, attended the MH address and photographed the inside of the house. Detective Declase then returned to the [redacted] police station and spoke with MS. Police were unable to obtain a statement due to the distressed state of both MS and Christopher, and at 9:30pm, police drove MS and Christopher home.

44 At around 9:45pm, Detective Declase received a telephone call from Joshua Sherman and advised him there was no need to check on Christopher, as police had sighted him. According to Mr Sherman's typed notes, Detective Declase advised him that SOCIT and the homicide squad would not be conducting any further investigations that night, and had transported MS and Christopher home after sighting them. While it is not entirely clear from the material, it seems that Mr Sherman consulted his team manager, and Child Protection determined they should attend as arranged. Contact was made with MS, who stated she and her husband were comfortable with Child Protection attending.

45 The prosecution rely on the accused telling Mr Sherman that he was walking up and down patting [Oscar] on the back to try and calm him down ... he let out a fart and a burp like normal but then he took 'just a shallow breath ... his head just dropped, his eyes closed, his arms went limp.' [The accused] said he had 'no idea how the injury occurred ...'. I note this account is found in the Child Protection Case Note, and not in the evidence of Ms Cooper. There is arguably a difference between saying 'I can't explain how the injury occurred' and 'I have no idea how the injury occurred'. Leaving that aside for present purposes, the Crown rely on the accused's account of Oscar 'just going limp' as an implied admission. The Crown argue that it is a lie, and was told by the accused because he was aware he had caused his son's death in a non‑accidental manner.[17]

46 The defence do not dispute it is a lie, but the truth is that the accused accidentally dropped Oscar.

47 On 25 October 2018, CO 306 using an assumed name 'Adam' attended at the accused's Macedon address. Adam told the accused he was a freelance reporter who had been following his Child Protection case in the Bendigo Family Court (meaning the Family Division of the Bendigo Children's Court). Since the events concerning Oscar, there had been ongoing proceedings in the Children's Court (Family Division) restricting the accused's access to his other children. This was loosely referred to in argument as the 'Family Court case', and for convenience I will adopt that terminology despite its obvious inaccuracy. The conversation between Adam and the accused was covertly recorded.

48 Adam spoke with the accused outside his home. Adam said he was doing a story about the circumstances around the case. He said he understood it was a sensitive issue because it is to do with the death of Oscar. The accused indicated he was happy to speak to Adam outside, but Adam suggested that they go inside the house, and the accused agreed. They both went to the loungeroom. Adam said he had been following the case for the last few months and 'the last court thing was in September'. Adam said he thought it was really important to get the accused's side of the story, and asked the accused about his relationship with Oscar. The accused told Adam that Oscar was only four weeks old when he passed away, and that he was a happy, healthy, normal baby. Adam told the accused that what had been mentioned in court is that there were injuries located on Oscar's body, which the 'Department'[18] suggested were non‑accidental and possibly the result of baby shaking. The accused repeated his account, including how he was holding Oscar, walking up and down at the end of the bed when 'Oscar just went limp'.

49 The discussion about Oscar was part of a broader conversation concerning the Family Court case. That case concerned the Department trying to limit the accused's access to his other two children, Christopher and [redacted]. Adam asked the accused numerous questions about these matters, including his attitude to the Department, and why he was required to have supervised access with his other children. Adam also raised that 'DHS' had suggested the accused had a drug problem and issues with violence, which the accused denied.

Statement and voir dire evidence of Detective Inspector Bradley Nichols

50 Detective Nichols made a statement on 8 April 2024. In October 2018, he was the officer in charge of the police undercover unit. On 17 July 2018, the unit received a formal request for assistance from the Homicide Squad in relation to the death of Oscar. The request was allocated to a covert controller, Detective Napier, who liaised with the Homicide Squad and prepared an Operational Risk Assessment. On 18 October 2018, Inspector Nichols reviewed this assessment and forwarded it to Detective Superintendent Mahony, Officer in Charge of Covert Services Division, who approved it the same day. Detective Napier then prepared a deployment plan, which specifically referenced the attendance by CO 306 at the Macedon address. Both Detective Napier and CO 306 are 'qualified in the Victoria Police Undercover training program'.

51 In evidence, Detective Nichols provided a single page of Interpose notes, a request for assistance and a deployment plan.[19] In cross‑examination, he said the deployment plan outlines 'the intent'.[20] There is no briefing note to the undercover operative that tells him exactly what he is permitted and not permitted to do. The deployment plan is reviewed by a Senior Sergeant, who either approves or disapproves the deployment. He agreed there was no mention of the covert operative carrying a surveillance device in the deployment plan, or in any other document tendered. The plan was for the covert operative to approach and knock on the door, posing as a reporter, and engage the accused in conversation. The conversation would be directed to the Family Law proceedings, including making reference to some of the things the Magistrate had said. It was hoped that the accused would then talk to MH about what had occurred, and what was said would be captured by way of listening device or telephone intercept. In re‑examination, he said the usual practice is for the covert operative to be briefed by their superior prior to deployment.

52 The prosecution rely on the statement, 'Oscar just went limp' as a lie, and seek to argue that it was told by the accused because he was aware he had caused his son's death in a non‑accidental manner.[21] The prosecution also rely on it as a 'credit lie', because it conflicts with what the accused told Dr Chifura. The defence do not dispute it was a lie, but do dispute the alleged reason for the lie.

Arguments pursuant to the Children, Youth and Families Act 2005 (Vic)

53 Senior counsel for the accused made a number of submissions concerning the CYFA; some were later withdrawn, altered or abandoned. Counsel's final position appeared to be as follows.

54 Dr Lobo is a mandatory reporter as defined in the CYFA.[22] Counsel accepted that this does not make her an 'investigating official' under the Evidence Act, nor was she an authorised officer under the CYFA.[23] However, her report of 1 December 2017 was clearly being prepared under Part 4 of the CYFA, and what she was doing was an assessment to be used in considering whether a referral should be made to Child Protection (which occurred). The report was prepared for SOCIT and Child Protection, and the language of her report is that of Child Protection reports.

55 Defence submitted that Dr Lobo was clearly investigating for both Victoria Police and Child Protection. If it was a criminal investigation, the accused would have a number of protections, including the right to silence. In a Child Protection proceeding conducted under Part 4.5 (compulsory disclosure of information), s 202 of the CYFA would protect the accused and anything he said could not be given in any legal proceeding other than a Child Protection proceeding conducted pursuant to the CYFA. Counsel submitted that Dr Lobo effectively conducted an investigation on behalf of both agencies, but the accused was left with no protection. This is contrary to the 'spirit' of the CYFA.

56 Belatedly, defence sought to argue that Dr Lobo compulsorily disclosed information to Child Protection pursuant to Division 2 of Part 4.5, and therefore the 'information' is protected by s 202. They then conceded that because Dr Lobo has provided a separate statement as part of the police investigation, s 202 would have no work to do as it only concerns information given or documents produced to an 'authorised officer' within the meaning of s 194 of the CYFA.[24]

Section 85

57 First, the defence submitted that what the accused said to Dr Lobo is an 'admission' within the meaning of the Evidence Act.

58 Secondly, the defence argued Dr Lobo was an investigating official within the meaning of s 85(1)(b). Dr Lobo was a person who 'was, and who the accused knew or reasonably believed to be, capable of influencing the decision [as to] whether a prosecution of the accused should be brought'.[25] Dr Lobo made it clear to both MH and the accused that she was seeking information, and that information would be conveyed to Child Protection and Victoria Police. Defence relied, in part, on answers Dr Lobo gave at an earlier hearing as follows:

Q: When they sign the consent form they're also authorising all the material to be provided to Child Protection, correct?

A: Yes, we, uh, explained to them that our assessment is to help inform Child Protection to determine how best they go about protecting children, and that our assessment will also be used by police in their investigations, and hence a report will be provided to the police and Child Protection.

Q: And so that's probably my second question. They're certainly aware that anything they say might also be provided to the police, made aware of that?

A: Yes.[26]

59 Counsel argued that the Court can draw an inference, on balance, that the accused would have known or reasonably believed that Dr Lobo was capable of passing on information to the police and, in that way, influencing whether a prosecution should be brought against him.

60 Thirdly, defence argued that the circumstances of the Dr Lobo interview, during which the accused made the admission, were such that the prosecution cannot establish that it is unlikely the truth of the admission was adversely affected. They rely on the following factors:

(a) The accused was not provided with the Consent Form and did not explicitly consent to the questioning.

(b) The accused was not cautioned or made aware of his right to silence.

(c) The accused was not made aware that he was not obliged to answer everything that was asked of him by Dr Lobo.

(d) The accused was asked questions together with MH; he was not separated, where he could speak freely.

(e) The conversation was not audio recorded. The nature of the questioning, and the exact questions asked and answers given, are not known.

(f) The accused was dealing with the likely death of Oscar, and was distressed and emotional.

(g) The accused was also being questioned about matters concerning Christopher and Child Protection. The difficulty with this 'dual investigation' is that it makes the evidence potentially unreliable, as it gives rise to different priorities. If the accused's priority is to keep Christopher in his care, then answering questions and denying he had injured Oscar (albeit accidentally) may be the best course. However, if the accused was being asked questions as part of a criminal investigation concerning Oscar only, then his best course may be to say nothing.

(h) The VFPMS guidelines emphasise the importance of obtaining consent before a forensic assessment is undertaken. Dr Lobo obtained the consent of MH, but not the accused, and everything that followed was without the consent of the accused.

61 In combination, the defence argued that the whole of the circumstances were such that the Court could not be satisfied that it is unlikely that the truth of what the accused said to Dr Lobo was adversely affected.

Section 138

62 Alternatively, counsel argued the evidence should be excluded pursuant to s 138 of the Evidence Act. The evidence was obtained improperly, as Dr Lobo failed to have the accused sign the Consent Form, which is 'akin to a caution in the Child Protection arena'.[27] This is a serious example of improper conduct, as it occurred in circumstances where the information was to be provided to the police.

63 As to the matters set out in s 138(3), defence submitted:

(a) The evidence is probative, although the Crown agree it is a lie and therefore not reliable. However, that is what gives the evidence its probative force.

(b) The evidence is not particularly important. The Crown have evidence of the same lie told to the paramedics and to MH. Its importance is significantly diluted in those circumstances, and its exclusion would not substantially weaken the Crown case. Conversely, its admission would harm the accused.

(c) It is a serious offence, carrying with it an inevitable prison sentence if convicted.

(d) The gravity of the impropriety is considerable. Dr Lobo was conducting a dual or joint investigation, and in those circumstances, the failure to obtain the accused's consent occasioned significant unfairness. There is no evidence to suggest he was aware of his right to silence and right against self‑incrimination, which he would have been if he had been questioned by police.

(e) Dr Lobo's conduct was not deliberate, but it 'appears reckless', or possibly negligent.[28]

(f) Article 14 of the International Covenant on Civil and Political Rights ('ICCPR') includes the right that an accused not be compelled to testify against himself or confess guilt.

(g) No other proceeding has been or is likely to be taken in relation to Dr Lobo's failure to obtain the necessary consent from the accused, and none is pending.

(h) The evidence could easily and readily have been obtained without breaching the rights of the accused. He could have been interviewed properly by a police officer, and under caution. Had he been, other material suggests he would have exercised his right not to answer questions.

Section 90

64 Finally, defence submitted that if the evidence is not excluded pursuant to ss 85 and/or 138, the Court should exercise its discretion pursuant to s 90 and exclude the evidence. Counsel relied on the same circumstances he identified when dealing with s 85(2) to argue that it would be unfair to the accused to use the evidence in his criminal trial.

65 Counsel went through the CYFA in some detail, and argued that what Dr Lobo was doing was preparing a report under that Act and for Child Protection. It is unfair for a person to be questioned regarding the welfare of a child, where they are not given a caution and their other rights before agreeing to answer any questions, and then use their answers in a serious criminal proceeding.

66 Defence initially submitted that Ms Cooper was investigating pursuant to Part 4.6 Division 1 of the CYFA, which governs investigations by protective intervenors. Counsel argued that Ms Cooper's investigative powers are found in s 205 of the CYFA. Pursuant to that section, she is mandated to investigate in relation to Child Protection. That is the purpose of any interview she conducts.[29]

67 Next, counsel referred to s 207 of the CYFA which states:

(1) The Secretary must, on a request made in accordance with any directions of the Minister by a police officer who is investigating the subject‑matter of a protective intervention report, submit a protection report to that police officer within 21 days.

(2) A police officer who receives a protection report under subsection (1) or the author of that report must not disclose any information contained in it to any person other than another protective intervener who is investigating the subject‑matter of the protective intervention report.

(3) Nothing in subsection (2) prevents the disclosure to a court by a police officer of information contained in a protection report received by that police officer.

68 Counsel noted that pursuant to s 207(3), any information contained in a protection report may be disclosed to 'a court' by a police officer. Senior counsel argued that the word 'court' is defined in s 3 of the CYFA to mean the Children's Court of Victoria. Thus, s 207 provides a 'complete answer' and the information provided by the accused to Ms Cooper is not admissible in this Court.

69 In response, the prosecution submitted that the CYFA defines 'Court' to mean 'The Children's Court of Victoria', but 'court' is not defined and means any court. Thus nothing in s 207(3) prevents the evidence of Ms Cooper being led in a criminal trial. Counsel for the accused appeared to accept this argument - which in my view, is correct - and therefore I will not address it further.[30]

Section 85

70 Alternatively, counsel argued that because there was a joint investigation of both Victoria Police and Child Protection on foot, Ms Cooper comes within the definition of 'investigating official' found in the Evidence Act's dictionary. Relevantly, the definition of 'investigating official' includes:

(b) a person appointed by or under an Australian law (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences;[31]

71 Child Protection and the police were undertaking a joint investigation and sharing information. Ms Cooper had been told that Oscar had received a non‑accidental injury. Her purpose was to ascertain what had happened to Oscar, so she could decide what to do with Christopher. In this way, her functions included functions in respect of the prevention or investigation of offences.

72 Counsel next submitted that at the time Ms Cooper interviewed the accused, she was an investigating official who was performing functions in connection with the commission, or possible commission, of an offence within the meaning of s 85(1)(a). Ms Cooper had been told that there was a suspicion, at the very least, of non‑accidental injury. Counsel also argued, albeit faintly, that 'potentially she falls under s 85(1)(b) as well'.[32] This submission was based on Ms Cooper telling the accused that they would potentially provide what he says to a court of law.

73 As to the application of s 85(2), counsel repeated and relied upon the arguments he had made concerning Dr Lobo. Further, the admissions came about as part of Child Protection proceedings. The accused arrived home to two Child Protection workers, who wanted to question him and examine Christopher. Oscar was critically unwell in the hospital, and he also faced the 'threat' of Christopher being taken away from him.[33] In those circumstances, it is likely the accused would have thought that if he told the workers he had dropped Oscar, Christopher would be taken away from him. He was not given his legal rights, and he was not given the Information Sheet until after the questioning had concluded.[34] The accused was also interviewed in the presence of his sister‑in‑law and her husband, which would have impaired his ability to speak freely.

Section 138

74 Counsel argued that the impropriety is the 'failure to caution, as well as all the other rights he has when being interviewed.'[35] Those rights existed because this was a joint investigation. Further, the information contained in the Information Sheet was not provided prior to questioning, and the accused was therefore unaware of important information before agreeing to participate. Ms Cooper should have informed the accused that it was a joint investigation involving the police, and she should have made him aware of his rights as though he was being questioned by the police.

75 Counsel also argued that s 138(2)(a) had application, and by failing to provide the Information Sheet, Ms Cooper had substantially impaired the accused's ability to respond rationally to her questions.[36]

76 Counsel relied on the same arguments with respect to s 138(3)(a), (b), (c), (f) and (g) as those made concerning the Dr Lobo interview. As to s 138(3)(d) and (e), counsel argued that the gravity of the impropriety, and whether it was deliberate or reckless, depends on how Ms Cooper's role is viewed. If she was a child protection worker, then the gravity is 'very limited'.[37] However, if she was obtaining information for the purpose of sharing it with Victoria Police, who will then use it in the criminal process, the impropriety is more significant.[38]

Section 90

77 Again, counsel relied on very similar arguments to those he made concerning the Dr Lobo interview. Counsel accepted that Ms Cooper was not a police officer; she was not trained as such, and she probably could not have cautioned the accused. However, this underscores why it is unfair to use the evidence in a criminal trial. It is proper that the information obtained by Child Protection be shared with the police, but it is grossly unfair for that information to then be used in a criminal trial, in circumstances where the accused was not afforded any of the protections that would have been afforded if he had been questioned by police and not Child Protection.[39]

78 Counsel emphasised that the information obtained by Ms Cooper was intended for use in Child Protection proceedings only. Using what the accused told Ms Cooper in a criminal trial, in circumstances where she was interviewing the accused in her role as a protective intervenor, is unfair and contrary to the 'spirit' of the CYFA.[40]

79 First, counsel argued that CO 306 was not properly authorised to conduct the operation that he did, and was therefore an 'investigating official' within the meaning of the Evidence Act. Relevantly, the definition of 'investigating official' includes:

(a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior);[41]

80 In other words, if CO 306 was not lawfully engaged in covert investigations, he was simply a 'police officer' and would have been obliged to identify himself as such and administer the caution before questioning the accused. The interview occurred three days prior to the accused's arrest; by this stage, almost 12 months had passed since the alleged crime, and the accused was clearly a suspect.

81 The defence argued that the evidence does not establish that when CO 306 secretly recorded the accused, he was engaged in covert investigations under the orders of a superior. To the extent that there were orders, he was acting beyond them.[42] The plan was that CO 306 would only attend the front door, but he went and entered the lounge room. Further, there is no mention in any of the material that CO 306 would be wearing a covert recording device, and no evidence that this was approved or authorised in any way.[43]

82 The defence accepted that if an undercover operative is conducting an authorised operation whereby it is agreed and approved that they will wear a recording device, no additional authorisation pursuant to the Surveillance Devices Act or any other legislation is required. If Victoria Police, through their own internal approval processes, designate someone to be an undercover operative, and authorise them to wear a recording device, that would be lawful.[44] No evidence was led to this effect, but the prosecution did not contest the submission.

83 It is worth noting at this point that the prosecution conceded that if CO 306 was not properly authorised - that is, if he was an 'investigating official' pursuant to the Evidence Act - then they do not seek to lead the evidence.[45] In those circumstances, it is not necessary to summarise or consider the arguments made by defence as to ss 85 and/or 138 of the Evidence Act, which were made on the basis that CO 306 was an investigating official.

84 The defence argued that if CO 306 was not an investigating official - that is, if he was lawfully engaged in covert investigations - then the evidence should nevertheless be excluded pursuant to ss 90 and/or 137 of the Evidence Act.

85 Relying on s 137, it was argued that unfair prejudice arises because in order to explain the accused's answers and place them in their proper context, defence would have to bring in at least some of the Family Court case material. This would cause great prejudice to the accused, as the jury would learn that Child Protection had taken, or were trying to take, his other children.[46]

86 Turning to s 90, the defence relied on a number of matters that make it unfair in the circumstances to use the admission. The use of the covert operative was designed to subvert the accused's right to silence, in circumstances where he was clearly a suspect and his (then) lawyers had made clear that he did not want to speak to police. The covert operative engaged the accused on the pretence of talking about the Family Law proceedings, so to some degree the accused was tricked as to what the information related to. The Magistrate dealing with the Family Law proceedings knew what the accused had said to Dr Lobo and Child Protection about Oscar, so the accused was effectively locked in to repeating that account.

Section 85

87 The prosecution agree that the disputed evidence is an 'admission' within the meaning of the Evidence Act.

88 The prosecution conceded that Dr Lobo was capable of influencing the decision as to whether a prosecution should be brought within the meaning of s 85(1)(b). However, there is no evidence that the accused knew or reasonably believed that. They submitted that events were evolving on this day, and at the time Dr Lobo spoke with the accused, the matter was 'very much in the investigation stage'. This was not an investigation into whether an offence had been committed, but rather a step prior to that. No medical diagnosis had been made or conclusion reached. At its highest, there was the suspicion of criminal conduct by someone, but only a suspicion.

89 Senior counsel for the prosecution argued that the purpose of questioning was explained to MH and the accused - it was a medical assessment of Oscar, not a Child Protection or Victoria Police investigation. Providing a report to Child Protection and/or Victoria Police was an indirect or ancillary purpose. Dr Lobo informed the parents that she was investigating the possibility of head injury. Counsel submitted that it may be clear in retrospect that Dr Lobo was capable of influencing whether a prosecution should be brought, but that would not have been apparent to the accused at the time.

90 The prosecution submitted the test is subjective, and there is no evidence as to the accused's state of mind at the time he was interviewed by Dr Lobo. The burden is on the accused to prove s 85(1)(b) is engaged, and this has not been done. The Court is left to speculate or guess as to what the accused understood about Dr Lobo's role, and cannot safely infer that he knew or believed she was capable of influencing whether a prosecution should be brought against him.

91 Turning to ss 85(2) and (3), the prosecution argued that while we do not know the exact words of the questions asked and answers given, Dr Lobo is an experienced doctor. She was dealing with a delicate situation. Dr Lobo has previously given evidence that she was not an interrogator or a primary investigator.[47] The Court can infer or conclude that the manner of questioning would not have been such as to adversely affect the truth of the admission.

92 Whether an admission was true or untrue does not matter for the purposes of s 85, although here, it is agreed that it was untrue. However, the circumstances make it unlikely that the truth was affected because:

(a) It was made to a doctor at a hospital in a formal setting. The importance of the utterance would not have been lost on the accused.

(b) The accused was being asked about a significant matter and his son was critically unwell at the time. This makes it more likely he would be cooperative and truthful.

(c) The accused was an adult aged in his early 40s. He appears to be of normal or average intelligence, and suffered from no known disability or impairment.

(d) There is no evidence of any threat, promise or inducement being made. There was no time pressure or other pressure applied to the accused. The potential involvement of Child Protection and Christopher is speculative. There is no evidence that those matters were raised at the time, and no evidence those matters played any part in the accused's thinking. Further, telling what the accused claims is the 'truth' (that is, he accidentally dropped Oscar) would not jeopardise the accused's relationship with Christopher and Child Protection, nor his ability to keep Christopher.

93 The prosecution submitted there was nothing in the circumstances which might explain why the truth of what the accused said was adversely affected. The accused wanted to distance himself from the truth, but that was because of what he had done, not because of the circumstances in which he was questioned by Dr Lobo.

Section 138

94 The prosecution submitted that there has been no impropriety, as what is complained of are not things Dr Lobo was required to do. She was not required to caution the accused, or inform him of his right to silence.

95 As to the Consent Form, the prosecution submitted that this was not legally required prior to questioning. It is an ethical practice that has been adopted, but a failure to have the form signed is not, relevantly, 'improper' within the meaning of s 138(1). Further, the form was signed by the accused's partner. Dr Lobo referred to 'them' signing the Consent Form, and the assessment being explained to 'them'. This provides a 'faint basis' to infer that Dr Lobo was not dealing with MH alone, and the accused was also involved in the process.[48]

96 The prosecution submitted the evidence was not improperly obtained and did not address, in the alternative, why the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.[49]

Section 85

97 The prosecution submitted s 85 has no application, as Ms Cooper was not an investigating official as defined in the Evidence Act. The investigations of Victoria Police and Child Protection were running jointly, but the agencies had distinct and separate functions. Ms Cooper's functions did not include the prevention or investigation of offences. Her role was to investigate matters concerning the welfare of Christopher.

98 The prosecution argued that in carrying out her functions, she may conclude that an offence has been committed, depending on what she is told or otherwise learns. However, that is an ancillary by‑product of what may happen, it is not one of her functions.

Section 138

99 The prosecution submitted that s 138 has no application here, as Ms Cooper was not an investigating official. Therefore, there was no need for her to caution the accused or afford him any of the other protections that defence say he should have been afforded.[50] The evidence was not obtained improperly or in contravention of an Australian law. It was submitted, without further elaboration, that if she was an investigating official, 'things change'.[51]

Section 90

100 The prosecution conceded that the provision of the Information Sheet after the interview had concluded was relevant to an assessment of whether it would be unfair to the accused to use the evidence at trial. However, Ms Cooper explained the relevant matters to the accused prior to questioning commencing. The accused was questioned in his own home. He was asked open‑ended questions. There were no time pressures or other pressures applied to him. The 'truth' (namely, that he dropped the child) would not have changed the future direction of any Child Protection investigation, and therefore the joint nature of the investigation did not create any unfairness. The accused was free to answer Ms Cooper's questions, and did so voluntarily.

101 As noted above, the prosecution conceded that if CO 306 was an 'investigating official', then they will not seek to lead the evidence. However, they submitted that CO 306 was 'a police officer who [was] engaged in covert investigations under the orders of a superior', and therefore he was not an investigating official at the time he posed as a journalist and spoke with the accused. Counsel submitted that much is clear from the evidence of Detective Nichols and the exhibits tendered through him. The deployment plan is not a statute, and should not be read as though it was. It is a plan which permits flexibility. Wearing a recording device was part and parcel of the duties and functions that CO 306 was authorised to perform. The prosecution accepted that there is no evidence as to what was discussed between CO 306 and his handler, but there is no reason to conclude that wearing a recording device was not part of the covert investigation his superiors had ordered him to undertake.

Section 90

102 The prosecution submitted it is an uncontentious proposition that police are permitted to engage in subterfuge to obtain admissions. The admissions made by the accused were voluntary. By posing as a journalist, CO 306 created no expectation of confidentiality. Indeed, the accused would have understood that what he said would be, or may be, published. The accused was not obliged to speak to a journalist, or pressured to do so. The prosecution referred to Tofilau v The Queen and argued there is a difference between a right to privacy and a right to silence.[52] Undercover operatives routinely attempt to get information from persons who, if they knew what was going on, would remain silent. The fact of trickery does not necessitate a conclusion that there has been unfairness. Here, the trick did not elicit a confession, but an implied admission in the form of a lie. It cannot be said that the trickery procured the lie; the accused voluntarily spoke to the 'journalist' and repeated his earlier version.

Section 137

103 The prosecution submitted that to the extent the material contains hearsay assertions made by the accused's ex‑wife concerning drug use and violence, such material can be excised from the recording. The material where CO 306 raises concerns that the accused's other children have been removed from his care could also be excised.

104 Counsel argued that if a forensic decision is made by defence to introduce the Family Law proceedings and Christopher's involvement in them, there would be no unfair prejudice as the proceedings all arise from the same single incident - that is, what happened to Oscar. There are no other allegations made against the accused, and no suggestion he has harmed or placed Christopher or [redacted] at risk.

105 Further, to the extent that there is any prejudice, it can be cured by a tailored judicial direction along the lines of an 'anti‑propensity' direction. That is, a jury must not reason that because there are legal proceedings involving Child Protection and the other children, the accused is the type of person who would commit this crime.[53] Further, they must not speculate about those proceedings.

106 An admission is a previous representation that is (a) made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding); and (b) is adverse to the person's interest in the proceeding.[54] Here, there is no dispute that the challenged evidence is an implied admission and therefore an 'admission'.[55]

Section 85 - Criminal proceedings - reliability of admissions by accused

107 Section 85 states:

(1) This section applies only in a criminal proceeding and only to evidence of an admission made by an accused -

(a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence; or

(b) as a result of an act of another person who was, and who the accused knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the accused should be brought or should be continued.

(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.

(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account -

(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and

(b) if the admission was made in response to questioning -

(i) the nature of the questions and the manner in which they were put; and

(ii) the nature of any threat, promise or other inducement made to the person questioned.

(a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior); or

(b) a person appointed by or under an Australian law (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences;[56]

109 Section 85 is not concerned with all admissions, only those made by an accused in the circumstances provided for in either s 85(1)(a) or (b). It is for the defence to establish either or both of those matters.

110 The section is concerned with the impaired reliability of an admission 'by the way it was obtained'.[57] The onus rests on an accused to identify an arguable point in this regard. Once a doubt arises regarding the impact of the circumstances in which the admission was made on the admission's truth, the prosecution bears the burden of proving on the balance of probabilities that the circumstances were such that the making of the admission made it unlikely that the truth of the admission was adversely affected.[58]

111 When considering s 85, a trial judge may have regard to the reliability of the circumstances that gave rise to the admission.[59] The phrase, 'the circumstances in which the admission was made' was explained in R v Rooke:

I think that the expression "the circumstances in which the admission was made" as used as in subs (2) is intended to mean the circumstances of and surrounding the making of the admissions, not the general circumstances of the events said to form part of the offence to which the admissions are relevant. That is because, first, it is the plain meaning of the words. Secondly, it follows because subs (1) intends the section to have effect only where there is official questioning (or an act of the kind relevant under para (1)(b)). So far as the present appeal is concerned, the section may be said to be intended to require courts to inquire, where appropriate, into the process by which official questioning produces evidence tendered at trial. If the circumstances of the official questioning are such as to produce untruthful or unreliable evidence of admissions - adversely to affect their truth - the evidence is inadmissible. But the section is only concerned with the truth or reliability of evidence of admissions in this limited way. It has generally no part to play in the admissibility of evidence of admissions which may be untrue or unreliable for other reasons. Untruthfulness or unreliability in those circumstances is not a question for the trial judge at all, but for the jury.[60]

112 Section 85(2) does not apply exclusively to objective or subjective matters.[61] The circumstances are not confined to those known to the interrogator, nor to the conduct of the interrogator, although those matters form part of the overall circumstances.[62] The matters contained in s 85(3) must be taken into account, to the extent that they are relevant and known.

Section 90 - Discretion to exclude admissions

113 Section 90 states:

In a criminal proceeding, a court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:

(a) the evidence is adduced by the prosecution; and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

114 The section derives from the common law fairness discretion or 'Lee discretion'.[63] The unfairness may arise in different ways and cannot be described exhaustively. The focus is on whether the use of the evidence at trial would be unfair. As Gummow and Hayne JJ stated in Em v The Queen:

...the central issue is whether the evidence of admissions should not have been admitted because, having regard to the circumstances in which they were made, it would be unfair to the defendant to use the evidence. That question requires consideration of whether there was identified some aspect of the circumstances in which the admissions were made that revealed why the use of the evidence, at the trial of the person who made the admissions, 'would be unfair'. That is, the focus of s 90 falls upon the fairness of using the evidence at trial, not directly upon characterising the circumstances in which the admissions were made, including the means by which the admissions were elicited, as 'fair' or 'unfair'.[64]

115 The defendant bears the burden of persuasion. The section is not limited to admissions made by an accused,[65] although that is most commonly the situation. The question of why the prosecution want to adduce the evidence - that is, the use the prosecution seek to make of the evidence - will not ordinarily be a relevant consideration. Whether the prosecution seek to use the admission as to credit, or as an implied admission to the crime, or for some other purpose such as to establish a motive or contradict a proffered alibi, is not a relevant inquiry.

116 The probative value of the admission has little or no bearing on the exercise of the discretion.[66] If, having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence, then the admission would be excluded even if its probative value is high. Similarly, if the defendant fails to establish that, having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence, then the fact the evidence may have low probative value is not a reason to exclude it pursuant to s 90.

117 'Unfairness' is a highly fact-specific concept.[67] Relevant considerations include whether the admission was voluntary; the means used to obtain the admission; whether there has been illegal or improper conduct on the part of an investigating official;[68] the defendant's mental or emotional state, or state of sobriety; and whether the defendant has been effectively robbed of his right to silence. The reliability of evidence can be a factor affecting the fairness of its use.[69]

118 In Em v Queen, Gummow and Hayne JJ stated that when considering s 90, it is necessary to read the Evidence Act as a whole, with particular reference to ss 84, 85, 86, 137, 138 and 139.[70] The admissibility of the out‑of‑court admission must first be considered under those sections, and s 90 will be engaged only as a final or 'safety net' provision.[71]

Section 138 - Exclusion of improperly or illegally obtained evidence

119 Section 138 provides:

(1) Evidence that was obtained -

(a) improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of Australian law -

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning -

(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or

(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a) the probative value of the evidence; and

(b) the importance of the evidence in the proceeding; and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject‑matter of the proceeding; and

(d) the gravity of the impropriety or contravention; and

(e) whether the impropriety or contravention was deliberate or reckless; and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law**.**

120 Section 138 applies to both civil and criminal proceedings, and its application is not limited to admissions. The alleged illegality or impropriety may have been committed by someone other than an investigating official; for example, secretly recorded conversations may be inadmissible pursuant to s 138 if they are recorded in contravention of relevant legislation.[72]

121 Section 138 creates a two‑step test with a shifting onus. First, the party seeking to exclude the evidence must establish that the evidence was obtained in one of the ways provided for in s 138(1)(a) or (b). If this is done, the party seeking to admit the evidence then bears the burden of persuading the court that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in the way in which the evidence was obtained. Section 138 is not expressed as a discretion, but, rather, in mandatory terms.[73] For that reason, it is said that s 138 does not confer a discretion.[74]

122 If the court reaches the second step, s 138(3) provides a non‑exhaustive list of matters that the court must take into account when undertaking the balancing exercise required by s 138(1). The matters should not be treated merely as items on a 'checklist',[75] but they do provide a convenient starting point for any analysis.

123 The expressions 'improperly' and 'impropriety' are not defined, and it has been observed that there would be little point in attempting to define them. In Parker v Comptroller‑General of Customs, French CJ referred to the ordinary meaning of the words 'improper', 'impropriety' and 'contravention' and noted that the relevant ordinary meanings of 'improper' included 'not in accordance with truth, fact, reason or rule' abnormal, irregular, incorrect, inaccurate, erroneous, wrong'.[76]

124 It is settled that s 138 has no application unless the party seeking to have the evidence excluded can satisfy the court that there is a causal nexus between the illegality or impropriety and the evidence being obtained.[77] In Employment Advocate v Williamson,[78] Branson J applied a 'but for' test of causation, and that test has been adopted by other courts.[79] The chain of causation connecting the illegality or impropriety with the obtaining of the evidence may have many links and an extended temporal span.[80] A causal link that is 'tenuous' may still attract the operation of s 138. However, the remoteness of the causal connection will be relevant to the balancing exercise required by the second step of the test.[81]

Section 137

125 Section 137 states:

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

126 The onus is on the accused to persuade the trial judge that the danger of unfair prejudice of the evidence outweighs its probative value.[82]

127 The first step is to assess the probative value of the disputed evidence. The trial judge must take the possible use to which the evidence might be put at its highest. No assessment of the credibility or reliability of the evidence is required or permitted. When considering the probative value of the evidence, the individual pieces of evidence cannot be viewed in isolation and the whole of the evidence must be considered.

128 The second step is to identify the danger of unfair prejudice to the defendant if the evidence is admitted. The fact that a piece of evidence has low or slight probative value does not, of itself, create a danger of unfair prejudice for the purposes of s 137. Evidence may be unfairly prejudicial to a party if there is a real risk that the evidence will be misused by the jury in some unfair way.[83] That is, the evidence will provoke an irrational or emotional response; or be given more weight by the jury than it deserves; or will be misused in a manner that is logically unconnected with the issues in the case. An assessment of unfair prejudice may also take into account the potential impact of evidence the accused may seek to adduce to challenge or explain the evidence sought to be introduced by the prosecution.[84] That is, the practical consequences for the conduct of the defence are a relevant consideration when assessing whether there is a danger of unfair prejudice

129 The third and final step is to determine if the probative value of the evidence is outweighed by the danger of unfair prejudice. If it is, s 137 mandates the exclusion of the evidence. In undertaking this balancing exercise, it is appropriate to have regard to any warnings or directions that may be given to a jury, and whether they would remove or reduce the danger of unfair prejudice.

130 As noted above, it is accepted for the purpose of argument that what the accused said to each of Dr Lobo, Ms Cooper and CO 306 is an 'implied admission' and therefore an 'admission' as that term is defined in the Evidence Act.

131 Before turning to the evidence in dispute, it is appropriate to say something about the 'right to silence'. In Tofilau v The Queen, Gleeson CJ made the following observation:

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.[85]

132 Here, there was a tendency to assert the accused had a 'right to silence' any time he was being asked about what had happened to Oscar. Investigating officials, including police officers, are entitled to address questions to a person they later charge, and rely on those answers if, at the time the person was questioned, they were not in custody and not suspected of having committed a criminal offence.[86] Police officers frequently question a person of interest without caution; whether the answers are later admissible may depend upon whether the person should reasonably have been regarded as a suspect at the time of questioning. In the 'ebb and flow of preliminary inquiry', the fact that a person is seen as a possible perpetrator, in the sense that an investigating officer has adverted to the possibility of the person having committed the offence, has been held to fall far short of the purview of s 464H(1)(a) and (b) of the Crimes Act 1958 (Vic) ('Crimes Act')[87]. (Section 464H concerns the recording of a confession or admission made to an investigating official by a person who was suspected, or ought reasonably to have been suspected, of committing an offence).

Section 85

133 The first question is whether Dr Lobo comes within s 85(1)(b) of the Evidence Act. The disputed admission was made by the accused to Dr Lobo as a result of questioning ('an act'). The prosecution conceded that Dr Lobo was a person who was capable of influencing the decision as to whether a prosecution of the accused should be brought. That concession is accepted for the purposes of this ruling.[88] The question therefore is whether the defence have established, on balance, that the accused 'knew or reasonably believed' Dr Lobo to be such a person at the time he answered her questions. This is largely a subjective question, as it focusses attention on what was in the mind of the accused. It is necessary to look at all the surrounding circumstances, including what the accused knew about the person whose act resulted in the admission, and draw reasonable inferences. No evidence was called by the defence, so I am left to infer the accused's state of mind from the material I do have.

134 Dr Lobo questioned the accused at around 5:00pm at the Royal Children's Hospital. Police were not involved at this time. Dr Lobo was unsure whether the parents knew, at the point of her interview, that Oscar was not going to survive.[89] They were told that anything they said might be provided to Victoria Police, as well as Child Protection. There is no evidence that Dr Lobo told the accused directly that she suspected Oscar had sustained non‑accidental injuries.[90] Dr Lobo stated that, 'DT and MH denied recent head injury to Oscar'.[91] I infer that the accused was made aware by Dr Lobo that VFPMS suspected Oscar had sustained a head injury.

135 The accused is a mature man of at least average intelligence. At the time he was being questioned by Dr Lobo, I accept he would have been upset and highly emotional. He was being asked questions by a doctor in a hospital setting at a time when Oscar was still alive. It would have been apparent that Dr Lobo was trying to find out what, if anything, had happened to Oscar to cause his injuries. It is difficult to infer that, in those circumstances, the accused would have turned his mind to whether he would be prosecuted in the future. He may have.

136 It is more difficult to infer that at the time of the questioning, the accused not only turned his mind to his future prosecution, but also reasoned that Dr Lobo was a person who was reasonably capable of influencing whether that prosecution should be brought against him. It is true that Dr Lobo told the accused that what he said would be passed on to the police. However, there is a difference between a person providing information to police, and a person being capable of influencing whether an accused should be prosecuted. It is equally likely that the accused, if he thought about it at all - which is uncertain - believed a decision to prosecute would be made by the police. Indeed, common sense suggests that is probably more likely, and I have no direct evidence as to the accused's state of mind at the relevant time.

137 On balance, I do not find that the accused 'knew or reasonably believed' Dr Lobo was capable of influencing the decision of whether he should be prosecuted for injuring Oscar. However, if I am wrong and for completeness, I will address s 85(2).

138 The disputed admission was a lie and so, on the face of it, it is unreliable. However, that does not mean the untruthfulness or unreliability resulted from the circumstances of the questioning, rather than for some other reason. The accused was not detained at the time of the questioning. No criticism is made of the way Dr Lobo conducted the questioning, and there is no evidence the questions were leading, confusing or unduly persistent. There is nothing to suggest the accused was unable to deal with the situation he was in, or unable to understand the questions. He answered responsively and voluntarily. He was not overcome by emotion. He was unaffected by drugs or alcohol, and did not suffer from any impairment or disability.

139 The defence submission that Dr Lobo was conducting a 'dual investigation' into both Christopher and Oscar, and that this is a relevant circumstance, is largely without merit. There is nothing in the report of Dr Lobo that suggests she asked any questions about Christopher.[92] The accused would need to have reasoned that because Dr Lobo is asking questions about Oscar, who is terribly unwell, and because what he says may be given to Child Protection, then Dr Lobo's questions must also be directed towards Christopher and whether Christopher is at any risk, which could lead to Christopher being removed from his care. The submission attributes improbably subtle and unlikely reasoning to the accused, unsupported by any testimony from him.[93] There is no evidence that the accused lied to protect Christopher, or was even thinking about what could happen to Christopher, at the time he answered Dr Lobo's questions.

140 There was no obligation on Dr Lobo to caution the accused, in the sense of a police caution. One matter must be made clear: the CYFA does not afford a person being questioned by Child Protection practitioners, authorised officers, mandatory reporters or protective intervenors the right to silence, or the right against self‑incrimination. In limited circumstances, and where coercive powers are used, the second of these rights exists.[94] To the extent that counsel for the accused complained that his client was not made aware of his right to silence by Dr Lobo, the simple fact is that he had no legal right to silence in the circumstances, and Dr Lobo was not obligated to tell him that he did.

141 The reliance placed on the 'Consent Form', and the fact that the accused did not sign it, is misplaced. The form is part of a 13 page 'Vulnerable Child Assessment' and is headed 'VFPMS assessment consent form'. The person who completes the form (here, MH) is consenting to Oscar being medically evaluated and physically examined. They are not consenting to being questioned; it is not 'akin to a caution in the Child Protection arena'.[95] At the very end of the Consent Form it states: 'Consent may be withdrawn at any time during the assessment. Specific consent will be required for additional medical procedures'. The word 'assessment' clearly refers to the medical assessment of Oscar, and consent for Oscar to be medically assessed may be withdrawn at any time. Logically, perhaps that may also be understood by the person who signs the Consent Form to mean that any questions being asked about the child do not have to be answered (or they may stop answering questions at any time), but it is far from clear. I consider it highly unlikely that a person signing such a form would read it as giving them the right to either not answer questions about their child, or stop answering questions at any time. It must be remembered that this process is taking place in a hospital, and the purpose of the process is to assess - and hopefully treat and save - the child in question. It is not a legal or criminal process.

142 There is no evidence that the accused would have declined to speak to Dr Lobo if he had seen or signed the Consent Form. Indeed, for her to be an 'investigating official', the accused must have known or reasonably believed her to be capable of influencing the decision as to whether he should be prosecuted. If the accused was capable of engaging in the type of reasoning necessary to achieve this state of mind, it is hard to see how his decision to answer Dr Lobo's questions was anything other than considered and deliberate.

143 Finally, I do not find that the fact that the accused was questioned together with MH, rather than being separated where he could 'speak freely', is a circumstance which adversely affected the reliability of the admission. Separating witnesses or persons of interest is a common police practice when a crime is suspected. One reason for the practice is so the accounts of the witnesses are not contaminated by what others say. It may also enable a person to speak more freely, particularly if they fear the other person present. However, as noted above, the questioning was occurring in a hospital and was not a legal or criminal process. There is no evidence that the accused would have given different answers if MH was not present, and there is no basis to conclude that had the accused been questioned separately by Dr Lobo, he would have felt more able to speak freely and truthfully.

Section 138

144 It is for the defence to establish, on balance, that the evidence was obtained improperly or in consequence of an impropriety.[96] The alleged impropriety is that the Consent Form was not signed by the accused.[97]

145 Senior counsel also argued that s 138(2)(a) is engaged, meaning they bear the onus of establishing that Dr Lobo did, or omitted to do, an act in the course of questioning even though she knew, or ought reasonably to have known, that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning.[98] Section 138(2)(a) has no relevance here. Leaving aside the first part of s 138(2)(a) (which concerns what Dr Lobo did, omitted to do, knew or ought reasonably to have known), there is absolutely no evidence that the accused's ability to 'respond rationally to the questioning' was in any way impaired.[99]

146 In discussing the concept of impropriety in Robinson v Woolworths Ltd,[100] Basten JA (Barr and Hall JJA agreeing), stated three propositions, the first two of which were:

First, it is necessary to identify what, in a particular context, may be viewed as "the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement". Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be "quite inconsistent with" or "clearly inconsistent with" those standards.[101]

147 Here, Dr Lobo is not someone 'entrusted with the powers of law enforcement', but she may fairly be described as a forensic medical professional entrusted with the impartial and fair investigation of suspected non-accidental injuries sustained by children, and the likely cause of those injuries. It was submitted that by failing to ensure the accused signed the Consent Form, Dr Lobo fell below the minimum standards expected of someone in her position, and her conduct was quite inconsistent with the relevant VFPMS guidelines governing her conduct.[102]

148 The accused was not under arrest. As discussed above, the Consent Form was not 'akin to a caution'. Moreover, while the Consent Form was signed by MH, there is no evidence the accused was unaware of it. Based on the evidence given by Dr Lobo at the s 198B hearing, it seems both parents were very much part of the process. Dr Lobo's questioning was appropriate and sensitive, and would meet the standards and professionalism that society would expect of a doctor in her position. While it may have been more prudent to ensure both parents signed the Consent Form, particularly given Dr Lobo clearly strongly suspected non‑accidental injury had occurred, Dr Lobo's conduct cannot be accurately characterised as 'improper'.

149 Even if there was an impropriety, it remains necessary for the defence to establish that the impropriety resulted in the obtaining of the impugned evidence. While the causal link can be as simple as a 'but for' link, it must exist. Here, and again as noted above, there is no evidence that the accused answered Dr Lobo's questions because he was unaware of the contents of the Consent Form. More broadly, there is no evidence that if the accused had read and signed the Consent Form, he would have understood the form to mean that he could refuse to answer Dr Lobo's questions, or would have refused to answer Dr Lobo's questions if he had so understood. Given what was occurring at the hospital on this afternoon, and Oscar's critically unwell state, I find it unlikely that the accused would have refused to answer Dr Lobo's questions about what had happened to the baby.

150 Given these conclusions, I will not go on to consider s 138(3).

Section 90

151 The admissions made by the accused were made to a doctor who strongly suspected non‑accidental injury. In context, 'non‑accidental injury' can only mean criminal conduct, and Dr Lobo would have known and understood this, given her long experience working in this area. The accused was being questioned by a health professional. If he had been questioned by a police officer, his answers may have been different, particularly if the police officer had formed the view that he was a suspect and cautioned him. There is no direct evidence about this.

152 At risk of repetition, the accused chose to speak to Dr Lobo. He was not placed under any pressure. He was told the information might be provided to Child Protection or Victoria Police. He was not under arrest, and he was free to speak or not speak. The Consent Form was not 'akin to a caution', and I am not prepared to conclude that if the accused had signed the form, he would have remained silent. Indeed, given Oscar was critically unwell but alive, and MH was present, I find it unlikely the accused would have adopted such a course. The accused was not under any mistaken assumption that what he was saying could never be used against him. He was not deprived of his right to silence. He suffered from no disability nor frailty. I accept he was probably highly emotional and upset, but there is nothing to suggest he was so distressed that he could not understand or respond to questioning. His answers were voluntary. There was no trickery or deception on the part of Dr Lobo, and no threat or perceived threat was made to the accused.

153 Having regard to all the circumstances, I am not satisfied that it would be unfair to the accused to use the evidence in his trial.

Was Ms Cooper an 'investigating official' as defined in the Evidence Act?

154 There is little authority on the meaning of 'investigating official'. In M L v The Queen,[103] an interlocutory appeal, the accused was charged with a number of sexual offences. The accused had given evidence, and the prosecution sought to cross‑examine him about certain statements he made to persons attached to the (Federal) Department of Human Services ('DHS'). Counsel for the accused argued that what had been said by the accused were 'admissions' within the meaning of s 85, and that s 86 was relevant. Harper JA determined that s 85 was inapplicable as what was said by the accused to the DHS officials were not 'admissions'. In the course of brief reasons and when dealing with s 86, his Honour said he was 'prepared to accept, for the purposes of this submission, that the Departmental representatives were "investigating officials"'. However, his Honour was not required to consider the question, as no relevant 'admission' had been made.[104]

155 In DPP v Hou,[105] another interlocutory appeal, the Court of Appeal considered whether Crown casino employees were 'investigating officials' for the purposes of the Crimes Act and the Evidence Act. The employees were appointed under the Casino Control Act 1991 (Vic) ('Casino Control Act') as 'special employees', defined to mean any person working in a casino, in any capacity, relating to 'the security and surveillance of the casino'.[106] The challenge was not to what the accused said to the casino employees (which the prosecution did not seek to lead), but to the admissions the accused later made to police, which were said to have been obtained unfairly following improper questioning by the casino employees. It was argued that the casino employees, who were all former police officers, had not advised the accused of their rights and had pressured them to cooperate.

The question to be decided, as correctly identified by the judge, was whether each (or any) of the four casino employees who detained and questioned the respondents ('the relevant officers') was

a person appointed by or under an Act ... whose functions or duties include functions or duties in respect of the prevention or investigation of offences, within the definition of ' investigating official ' in s 464(2) of the Crimes Act.

This was, plainly enough, a question of fact. It was necessary to identify, and then to characterise, the functions and duties which the relevant officers were engaged to perform. The factual inquiry required a consideration, first, of the statutory provisions under which the officers were appointed and, second, of what the evidence showed about the practical content of their functions and duties. It was not suggested on this application that anything done by these officers in relation to these respondents was outside the scope of their appointment under the [Casino Control Act 1991 (Vic)].[107]

157 The Court observed that pursuant to the Casino Control Act, a 'special employee', who suspects on reasonable grounds that a person in the casino is committing an offence pursuant to that Act or the Crimes Act, may detain the suspected person. It was the responsibility of the employees to conduct surveillance, identify irregular activity including theft, and arrest and detain suspected persons. The Court concluded the trial judge was correct to conclude the casino employees were 'investigating officials'. The Court stated:

Our conclusion accords with the clear legislative intention conveyed by the wide definition of 'investigating official' in s 464(2). Parliament intended that the important protections conferred by subdivision 30A on a person being investigated for a suspected offence should be available across the full range of statutory investigations and that no narrow view should be taken of its scope. The present case provides a powerful illustration of why this should be so.[108]

158 The definition of 'investigating official' in the Evidence Act is almost identical to that found in s 464 of the Crimes Act.[109] Section 464 refers to a person whose 'functions or duties include functions or duties in respect of the prevention or investigation of offences', whereas the Evidence Act refers only to 'functions', but for my purposes nothing turns on this difference. 'Offence' is defined in the Evidence Act to mean an offence under an Australian law.[110]

159 The relational term 'in respect of' is a connecting phrase commonly used in legislation. In Workers Compensation Board (QLD) v Technical Products Pty Ltd,[111] Deane, Dawson and Toohey JJ held that the phrase gathers meaning from the context in which it appears, and it is that context which will determine the matters to which it extends.[112] A review of the commentary in Geddes[113] and Herzfeld,[114] and the cases referred to therein, all emphasise the importance of context. To the extent that general principles may be found, the phrase requires a broad connection, not necessarily causal. There must be a sufficient or material connection or relationship between the two things.[115] Relevantly here, Ms Cooper's functions must be connected to the prevention or investigation of offences. That is, they must concern, in a real sense, the prevention or investigation of offences.

160 The Macquarie Dictionary defines the noun 'function' as 'the kind of action or activity proper to a person, thing, or institution'. Ms Cooper's function, as a protective intervenor, was to investigate the subject matter of the protective intervention report they had received in a way that would be in the best interests of the child. It was no part of her legislated role to provide information or protection reports to police officers (although police may request those reports)[116], or prevent or investigate criminal offences.

161 In order to determine whether Ms Cooper was an investigating official, it is necessary to look at not only the legislation, but also her role on the night in question. There is no suggestion that Ms Cooper acted outside her lawful role. Ms Cooper did not expect the accused to be present when she attended the home, and did not attend for the purpose of questioning him. She was in possession of limited information which, based on the material, appears to have been conveyed orally. Her role was to conduct an investigation with a focus on safety planning for Christopher. Part of her role, which she described as 'imperative', was to ascertain who was caring for Oscar when he became unwell.

162 Ms Cooper interviewed the accused with these purposes in mind. She described her role as the 'lead interviewer', and used a non‑leading questioning style. She obtained detailed information about Oscar that went beyond ascertaining who was caring for Oscar when he became unwell. She directly asked the accused if he had any knowledge as to how Oscar suffered any injuries. After the accused said he could not explain how the injury occurred, she was conscious that it was 'not for her' to continue questioning the accused about Oscar's injuries, and also 'not the purpose' of their visit. Nonetheless, based on the detail found in her statement, the accused provided further information about Oscar, including how he was holding Oscar when he went limp. It seems the interview, including the physical inspection of Christopher, took about one hour.[117]

163 At the time of questioning, Ms Cooper was aware that non‑accidental injury was, at a minimum, suspected by those who had medically assessed Oscar. I infer that a person of her age and experience would know that 'non‑accidental' injury, in the context of a very unwell 26‑day‑old baby, means someone has likely committed an offence against that child. Once she learned that only MH and the accused were caring for Oscar that night, logically that meant it was likely that one (or both) of them had injured Oscar.

164 Ms Cooper perceived a line where her questioning of the accused should end, given police were also involved. She saw her role as distinct from, and separate to, that of police. However, the question of whether someone is an investigating official cannot be determined by considering the subjective belief of the person whose functions are being examined. Overall, the question is one of objective fact.

165 In my view, whether Ms Cooper was an 'investigating official' is not straightforward. There was a joint investigation on foot, but Child Protection and Victoria Police had different roles. Based on the evidence, the two investigations would be better described as running in parallel. Child Protection is a body dedicated to the protection of children. Ms Cooper, as a protective intervenor, was performing a statutory function, which was to investigate in way that would be in Christopher's best interests. The safety of Christopher, and the question of what had happened to Oscar, overlapped. I find Ms Cooper's questioning of the accused was not limited to ascertaining who was caring for Oscar when he became unwell. Her questioning sought to find out what, if anything, the accused had done to Oscar to cause his injuries. However, in my view, this does not alter or expand her functions on this night, which were to investigate whether Christopher was safe and, if necessary, make a protection application pursuant to the CYFA. I find, on balance, that on the night in question Ms Cooper was not an investigating official as that term is defined in the Evidence Act.

166 For completeness and briefly, I will deal with counsel's submission concerning s 85(1)(b). The submission was unclear. I am unsure as to how the fact that Ms Cooper might provide evidence to a court of law makes her a person who is 'capable of influencing the decision whether a prosecution of the accused should be brought or should be continued'. Indeed, if matters have reached the stage where evidence is being provided to a court of law, then the decision to litigate has already been made. It is less clear why this Court should infer that the accused 'knew or reasonably believed' her to be capable of influencing whether he should be prosecuted. Section 85(1)(b) has no application here.

Section 138

167 Given Ms Cooper was not an investigating official, she was not required to caution the accused as though she was a police officer questioning a suspect in custody.[118] However, the defence also relied on the failure to provide the Information Sheet as an impropriety that engages s 138(1), and I will address that argument. Defence also seemed to rely on Ms Cooper's failure to tell the accused that this was a joint investigation with Victoria Police, and her failure to caution him 'as though he was someone who was being questioned by police'.[119] I am somewhat unsure whether this last complaint relies on Ms Cooper being an 'investigating official', or whether it is alleged that Ms Cooper should have done this in her role as protective intervenor.

168 It is necessary to examine the Information Sheet and the process undertaken by Child Protection in more detail. Speaking generally, prior to attending, Child Protection receive a report from someone that indicates a child may be in need of protection. The Information Sheet sets out that following this, Child Protection attend to talk about the report. The Information Sheet poses the question, 'What will happen if I don't talk to the Child Protection?', and states, 'You may choose not to discuss the report with Child Protection, but we will still have to investigate'. It goes on to encourage cooperation. The Information Sheet then states that if Child Protection arranges assistance for the parent or family, information will be provided to the necessary service. Information that is collected may be given to, inter alia, 'the police if an offence may have been committed'. The Information Sheet also tells the reader that they have the right to seek legal advice and assistance, and provides contact details of Victoria Legal Aid and other bodies.

169 In my view, it may be more prudent to provide the Information Sheet at the commencement of any interview, and go through it with the parent or person being questioned. However, while the document tells a person that they do not have to answer questions, it also says, effectively, that it is in their best interests to cooperate. The document does not say that the person is entitled to seek legal advice prior to being questioned. Here, the accused knew that Child Protection were taking notes, and that they could be provided to a court. He was asked if he was willing to speak to Child Protection and expressed his willingness to do so. He was not told he had to answer questions, and Ms Cooper most likely did not tell him that it would be better if he cooperated with Child Protection.[120]

170 I can find no basis, evidentiary or legal, for concluding that Ms Cooper was required to tell the accused that there was a 'joint investigation' involving Victoria Police, or caution the accused as though he were being questioned under subdivision 30A of the Crimes Act.

171 To the extent that counsel for the accused relied on s 138(2)(a), the argument was difficult to follow. When pressed, counsel could not articulate how Ms Cooper knew or ought to have reasonably known that a failure to provide the Information Sheet prior to questioning the accused was likely to 'impair substantially' his ability to 'respond rationally' to the questioning. Section 138(2)(a) has no relevance here.

172 In my view, nothing in the way Ms Cooper or her colleague conducted themselves on this night could be described as 'improper'. Indeed, on the material I have, the opposite could be said - their dealings with the accused were entirely lawful and proper.

Section 90

173 On any view of the material, Ms Cooper was asking questions of the accused about what happened to Oscar, in circumstances where Ms Cooper knew that some type of assault was at least suspected. Ms Cooper also knew that police were involved, and a joint investigation was in the very early stages. The Information Sheet makes clear that information obtained by her 'can be made available to the Children's Court if court action is required to protect [the] child'.[121] Information may also be given to police, if an offence may have been committed. The information she obtained as a protective intervenor was used in Child Protection proceedings, and passed onto police. No complaint is made about this. Her primary and undisputed purpose on this night was to ensure Christopher's safety. There is no suggestion that the information she obtained, insofar as it concerned Child Protection proceedings, was obtained improperly, unlawfully or unfairly.

174 However, the evidence of what the accused said is now sought to be used against him in a criminal trial. Its use is not 'unfair' in any of the ways that perhaps are more commonly seen or relied upon when s 90 is invoked. His admission was voluntary. He was in his home environment and, while he was no doubt stressed and emotional, he was not under any undue pressure. He was rational. He chose to speak to Child Protection. He was told that they were taking notes that might be used in court.

175 However, Ms Cooper may not come within the legal definition of 'investigating official', but she still held a position of some power and authority on this night. While I have no direct evidence as to the accused's state of mind, it is reasonable to infer that he would have wanted to present himself, and more particularly his parenting skills, in the best light possible. The focus of the questioning was Christopher, and not what had occurred to Oscar. By this stage, the accused had expressed an unwillingness to speak to police, or was too distressed to speak to police.[122] The police had already attended on the MH address, declared it a crime scene and photographed the home. It seems they then received information contrary to that provided by Dr Lobo, namely that the injuries may not be non‑accidental, and deferred any further investigation.

176 As the authorities make clear, the concept of 'unfairness' is very fact-specific. In circumstances where there is a joint investigation and police are involved, and an accused is being questioned by the other party to the joint investigation about the subject matter that gives rise to the joint investigation, but for a different purpose and with none of the protections that may attach to police questioning, an unfairness is created. As the prosecution were at pains to establish, Ms Cooper was not an investigating official; she was there to assess whether Christopher was safe.

177 In my view, having regard to the circumstances in which the admission was made, it would be unfair to the accused to use the evidence against him in his criminal trial. The evidence is therefore excluded.

178 The question is whether CO 306 was 'engaged in covert investigations under the orders of a superior'. For convenience, I will use the shorthand of whether CO 306 was 'authorised'. If he was not, that is the end of the matter and the prosecution will not seek to lead the evidence. The question is one of fact to be determined on the balance of probabilities.[123]

(a) As at October 2018, CO 306 was employed as a Victorian police officer. He was 'qualified' within the meaning of the Victoria Police Undercover training program, and attached to the Victoria Police Undercover Unit. The Undercover Unit provides assistance to other units within Victoria Police.

(b) On 17 July 2018, the Undercover Unit received a formal request for assistance ('request') from the Homicide Squad in relation to the death of Oscar. The request was allocated to a covert controller and an Operational Risk Assessment ('Risk Assessment') was prepared.

(c) On 18 October 2018, the Risk Assessment was reviewed by Detective Inspector Nichols, who forwarded it to Detective Superintendent Mahony, Officer in Charge of Covert Services Division, indicating he supported the proposed undercover operation. On the same day, Detective Mahony approved the undercover operation. Also on this day, the covert controller prepared a deployment plan ('Plan') which was approved by Detective McGowan.

(d) The undercover operation and deployment plan were lawfully approved in accordance with Victoria Police procedures.

(e) CO 306 was lawfully engaged in undercover activities when he spoke with the accused on the afternoon of 25 October 2018.

180 There are two real matters in issue: one, did CO 306 exceed the bounds of any authorisation when he entered the accused's home and continued asking questions? Two, was wearing a recording device beyond what he had been authorised by his superiors to do?

181 In my view, the words 'under the orders of a superior' do not mean that every detail of a covert operation must be ordered by a superior officer. Covert operations are, by their nature, frequently fluid. Targets may prove to be more cooperative or talkative than expected. In the course of the deployment, other people may appear who were not expected but are very much of interest to police. The undercover operative may be invited to go to a restaurant, or find themselves in a vehicle. They may, as here, be invited into a home. It is unrealistic to expect the 'orders of a superior' to descend into the type of detail that covers every eventuality.

182 There is no doubt CO 306 was fitted with, and used, a covert recording device. While there is no specific mention of it in any of the documents tendered, it was not suggested to Detective Nichols that an undercover operative requires specific or additional authorisation to wear a recording device. Nor did the Detective give evidence that wearing a recording device is routine for covert operatives, and requires no special order or permission. In Victoria and as a matter of law, one party to a private conversation can secretly record the conversation; it is not necessary to obtain a warrant or similar, or inform the other party. The Surveillance Devices Act regulates the installation, use and maintenance of listening devices 'to overhear, record, monitor or listen to a private conversation to which the person is not a party'.[124] Arguably, the conversation between the accused and CO 306 was not a 'private conversation,'[125] as 'the parties' to it did not desire it to be heard only by themselves. The accused may have held this desire, but in the circumstances it is not reasonable to conclude that CO 306 had such a desire. However, if it was not a private conversation, then this does not assist the accused, as such a conversation can be lawfully recorded by anyone. If it was a private conversation, it was able to be lawfully recorded by CO 306 without the consent of the accused and without requiring a warrant pursuant to the Surveillance Devices Act.

183 CO 306 recorded three tracks.[126] First, he states his role and what he will be attempting to do, and then ceases the recording (track one). The recording is then reactivated and the conversation between the accused and CO 306 is recorded (track two). After leaving the Macedon address, CO 306 records a 14 minute summary of what just occurred, and the conversation he had with the accused (track three). It is clear from this that wearing a recording device was seen by CO 306 as a routine and necessary part of his role as a covert operative. Logically, the device itself must have been provided by his controller or those managing him. When looked at in the context of what occurred, I am prepared to infer that wearing a covert recording device was an integral and approved part of CO 306's role. The fact that the device was not mentioned in the plan does not mean that its use was not approved.

184 There may be cases where a covert operative engages in conduct well beyond the orders of a superior. Or, the orders may be so unclear or inadequate that no covert operative could sensibly operate under them, and no court could find that they were operating 'under the order of a superior'. However, that is not this case. This was a small, discreet operation and the role of CO 306 was adequately defined. I am satisfied on balance that CO 306 was engaged in covert investigations, and the actions he undertook had been approved by his superiors. He was therefore not an 'investigating official'.

185 In those circumstances, s 85 is not engaged and s 138 has no relevance, as there was no illegality or impropriety.

186 In my view, the probative value of the evidence is not weak, but nor is the evidence particularly important. The trial will not really be about what the accused said, but what the medical evidence proves (or fails to prove). The accused repeats an earlier lie to CO 306, in circumstances where the prosecution already have evidence of that lie. The fact that it is made after he tells Dr Chifura that he dropped Oscar may add something to the prosecution case, but not a great deal. He is repeating a lie he told to Dr Lobo, in circumstances where the journalist is asking about a court case in which what he told Dr Lobo is before the court.

187 The alleged danger of unfair prejudice lies in having to put before the jury the Child Protection proceedings, in order to explain why the accused repeated the lie, and in circumstances where otherwise (in light of this ruling) Child Protection will play no part in the trial. Defence argue editing the transcript will not solve the problem as, in order to explain his answers to the journalist, the accused will have to bring in the existence of other court proceedings involving Child Protection and his other children.

188 In R v Cook,[127] the appellant was charged with sexual offending against a female in a public toilet block around midnight. Twelve hours later, the police attended at Ms B's premises, wanting to speak with the appellant, who was present. The appellant ran through the premises, jumped out the window and disappeared. A few hours later he returned to the premises, police arrived, and he hid in the ceiling cavity. Police located and arrested the appellant. At trial, the prosecution relied on this evidence as flight signifying consciousness of guilt. Trial counsel, relying on s 137, objected to the evidence. On a voir dire, the appellant gave evidence that he had fled from police because he believed an Apprehended Violence Order (AVO) made against him in relation to Ms B was still in existence. He had previously been gaoled for breaching that order and assault, and did not want to be found by police at her premises. It was common ground that there was a current AVO in place prohibiting the appellant from approaching Ms B. The appellant argued that in order to explain his conduct, he would necessarily have to reveal the existence of the AVO, his breach of it and the assault. The prejudice was that his explanation would not only expose him as a person with a criminal record, but also with a history of violence against women. The trial judge refused to exclude the evidence and the appellant was convicted.

189 On appeal, Simpson J (Ipp JA and Adams J agreeing) stated:

There is no general principle that, when the explanation for flight involves revealing other offences, the evidence should be rejected. Indeed, it is part of the conventional direction in relation to evidence indicative of a consciousness of guilt (whether of lies, or flight, or otherwise), that the jury be alerted to the possibility that the accused person has undertaken that course of conduct by reason of consciousness of guilt, not of the offence charged, but of some other offence or discreditable conduct.[128]

However, his Honour went on to note that the evidence put the appellant in an 'awkward position'. The evidence as to why he fled not only disclosed previous criminal offences, it disclosed criminal offences 'with a disturbingly close relationship to the offence with which he was charged'. The Court concluded that given the nature of the charges, and the nature of the evidence the appellant would have to adduce to meet the flight evidence, the prejudicial effect was unfair and the evidence should have been excluded.

190 Here, the Children's Court proceedings do not concern any other criminal activity (alleged or proven), or child protection concerns. They were brought solely because of what had happened to Oscar. Based on the transcript of the conversation, the 'court case' involved both the accused and MH, and when told by 'Adam' that the matter was last in court in September, the accused said, 'I don't think we were there'. If the accused's explanation for the lie is that he knew what he said to Dr Lobo was before the Children's Court, so he repeated the same lie, that explanation can be given without disclosing prior offending or misconduct.

191 In my view, while there is a risk of prejudice to the accused, there is not a danger of unfair prejudice. Further, the transcript can be edited to remove inadmissible and prejudicial portions. Without being comprehensive, that would likely include the accused's view of DHS; what was said by the Magistrate; DHS's view on whether Oscar's injuries were non‑accidental; allegations made by the accused's ex‑wife, including drug use and violence; and the need for access with Christopher to be supervised. I note that MH's contact with her children was also supervised at this time. It may be that an agreed fact can be put before the jury explaining, in neutral terms, the court case that 'Adam' is referring to. For example, it may be agreed that Child Protection only became involved with the family because Oscar had died and Dr Lobo provided a report stating that non‑accidental injury was suspected, and Child Protection involvement is routine in such matters where the parents have other children. It may also be agreed that the report received by Child Protection included what the accused and MH told Dr Lobo at the hospital.

192 Judicial directions can also be given to ensure the evidence is not misused. Whether such a direction is necessary will depend on how the evidence is ultimately adduced. Additionally, the jury will know the accused has no prior convictions and nothing pending, and will be given a 'good character' direction.

193 In my view, the probative value of the evidence is not outweighed by the danger of unfair prejudice to the accused.

194 Police engaging in deception during the course of an investigation is not novel, and the use of undercover operatives always involves deception.[129] Many forms of undercover activity involve trickery, and if the accused was aware of what was truly going on, he would remain inactive or silent.[130] The fact that an accused makes a statement to an undercover operative, unaware of the possible consequences, does not deprive him of his right to silence.[131]

195 In R v Mallah,[132] an undercover operative posed as a journalist, 'Greg'. He assured the accused that he was not being secretly recorded, and promised him the conversation would remain confidential. The Court found that had the accused known Greg's true identify, and known he was being recorded, he would inevitably have remained silent. Further, if he had been formally interviewed, it may be confidently assumed that he would have exercised his right to silence. An application to exclude the evidence pursuant to s 90 was refused.

196 Here, unlike R v Mallah, the accused was given no such assurances or promises. He believed he was speaking to a journalist, meaning he must have anticipated that anything he said could be published and widely read, including by police. The conduct of police, and the level of 'trickery' involved, falls towards the lower end when compared, for example, to the conduct that was considered in Em v The Queen. In that case, admissions were obtained from a suspect by covertly recording conversations held between the suspect and detectives in a local park, in circumstances where the detectives knew that the accused held a mistaken belief that the conversation was not being recorded and therefore mistakenly believed any admission he made could not be used against him. The High Court held it was not unfair to use the evidence against the appellant.

197 Here, the accused answered questions willingly and voluntarily, and invited the 'journalist' into his home. He was sober and rational when he spoke to 'Adam'. His admissions were voluntary. He was not subjected to threats or pressure. In all the circumstances, I am not persuaded it would be unfair to admit the evidence.

198 The application made pursuant to ss 85, 138 and/or 90 of the Evidence Act to exclude the evidence of what the accused told Dr Lobo is refused.

199 The application made pursuant to ss 85 and/or 138 of the Evidence Act to exclude the evidence of what the accused told Ms Cooper is refused. The application made pursuant to s 90 to exclude the evidence is granted.

200 The application made pursuant to ss 85, 137, 138 and/or 90 of the Evidence Act to exclude the evidence of what the accused told the covert operative is refused.

[1] This proceeding is subject to a suppression order regarding identification. Pseudonyms and initials have been used to prevent identification and minor redactions made.

[2] Amended Summary of Prosecution Opening dated 23 December 2022, 17 [108]. The basis for this is unclear, and there is no statement from either officer contained in the depositions.

[4] See Exhibit 9, which is not precise but suggests Fawkner SOCIT attended later in the evening, well after Dr Lobo spoke with the accused and MH, but prior to the accused returning home. The material is not entirely clear as to what occurred. According to the transcript with CO 306, the accused was told by police at the Royal Children's Hospital to not make a comment at that stage because 'we were unfit to do so': Depositions, p 339. According to the progress notes prepared by Shanti Petronzio (Social Worker) on 28 November 2017, MH's stepmother stated that they had contacted a lawyer. The lawyer advised them not to make a statement. Nonetheless, both parents intended to make a statement. MH and the accused ultimately 'chose not to make a statement due to their level of distress': Depositions, p 989-991.

[5] Had they sought to do so, defence would have objected.

[7] Ms Petronzio did not provide a statement.

[10] Notice of Incriminating Conduct dated 8 March 2024; the use of this evidence as evidence of incriminating conduct is not agreed, and will be the subject of a later ruling. It is accepted the lie can be used for credit purposes.

[11] Logically, this has to be wrong, as the accused arrived home after Child Protection were in attendance. However those are the times set out by Ms Cooper in her statement, and she did not correct those times when asked if she wished to make any changes to her statement.

[12] 'Protective interveners' are defined in s 181 of the CYFA. The witness did not refer to this section, but there is no dispute she was a lawfully appointed protective intervener on the night in question.

[13] Transcript of Proceedings, DPP v DT (Supreme Court of Victoria, Fox J, 10 April 2024) 23.

[16] Exhibit G. This is the 2021 version of the Information Sheet, but it seems the earlier version was relevantly similar and the parties proceeded on that basis.

[17] Notice of Incriminating Conduct dated 8 March 2024.

[18] The 'Department' or 'DHS' was understood by the accused and 'Adam' to be a reference to the Department of Health and Human Services (as they then were).

[20] Transcript of Proceedings, DPP v DT (Supreme Court of Victoria, Fox J, 10 April 2024) 11.

[21] Notice of Incriminating Conduct dated 8 March 2024.

[22] CYFA s 182(1)(a).

[23] Ibid s 194.

[24] Given this concession, I will not deal further with the argument beyond what is contained in this footnote. On the material I have, it appears that Dr Lobo voluntarily disclosed information to Child Protection pursuant to Division 1 of Part 4.5, and s 202 is not engaged. Compulsory disclosure under Division 2 of Part 4.5 of the CYFA requires a written direction. I am unaware of any written direction issued to Dr Lobo prior to Child Protection being notified. The defence submission seems, wrongly, to conflate mandatory reporting under s 184 of the CYFA with compulsory disclosure pursuant to s 196 of the CYFA.

[25] Evidence Act s 85(1)(b).

[26] Transcript of s 198B examination, DPP v DT (Supreme Court of Victoria, Incerti J, 24 March 2021) 184.

[27] Transcript of Proceedings, DPP v DT (Supreme Court of Victoria, Fox J, 27 March 2024) 38. Initially, counsel submitted it was obtained 'improperly or in contravention of Australian law. We point out the [CYFA]. He obviously has a right under that Act against self‑incrimination': at 37. However, later in argument, counsel clarified that the alleged impropriety was the failure to have the accused sign the Consent Form: Transcript of Proceedings, DPP v DT (Supreme Court of Victoria, Fox J, 28 March 2024) 112.

[28] Transcript of Proceedings, DPP v DT (Supreme Court of Victoria, Fox J, 27 March 2024) 40-41.

[29] Transcript of Proceedings, DPP v DT (Supreme Court of Victoria, Fox J, 10 April 2024) 74.

[30] Transcript of Proceedings, DPP v DT (Supreme Court of Victoria, Fox J, 10 April 2024) 114-5.

[31] Evidence Act, Dictionary pt 1 (definition of 'investigating official').

[32] Transcript of Proceedings, DPP v DT (Supreme Court of Victoria, Fox J, 10 April 2024) 77.

[36] Ibid 84. When challenged as to how s 138(2)(a) could logically apply here, senior counsel responded that he did not 'need to push it', but declined to abandon reliance on the subsection.

[40] Defence also argued that Ms Cooper was an investigating official under the Evidence Act, which is dealt with below.

[41] Evidence Act, Dictionary pt 1 (definition of 'investigating official') (emphasis added).

[42] Transcript of Proceedings, DPP v DT (Supreme Court of Victoria, Fox J, 10 April 2024) 48.

[44] Transcript of Proceedings, DPP v DT (Supreme Court of Victoria, Fox J, 27 March 2024) 62.

[45] Transcript of Proceedings, DPP v DT (Supreme Court of Victoria, Fox J, 10 April 2024) 91.

[47] Transcript of s 198B examination, DPP v DT (Supreme Court of Victoria, Incerti J, 24 March 2021) 195.

[48] Transcript of proceedings, DPP v DT (Supreme Court of Victoria, Fox J, 28 March 2024) 117.

[50] Transcript of proceedings, DPP v DT (Supreme Court of Victoria, Fox J, 10 April 2024) 102.

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

[53] Transcript of proceedings, DPP v DT (Supreme Court of Victoria, Fox J, 10 April 2024) 95.

[54] Evidence Act, Dictionary pt 1 (definition of 'admission').

[55] In situations where the accused makes an exculpatory statement that is a lie within the requirements of Edwards v R [1993] HCA 63; (1993) 178 CLR 193, there exists some difference in judicial opinion as to whether the lie is 'adverse to that person's interest in the outcome of the proceeding'. The approach consistently taken by the NSW Court of Criminal Appeal is that it is: see, for example, R v Esho; R v Sako [2001] NSWCCA 415; but compare R v GH (2000) 105 FCR 419; [2000] FCA 1618 where the Full Federal Court took a different view.

[56] Evidence Act, Dictionary pt 1.

[57] R v Rooke [1997] NSWSC 363 per Barr J (Newman and Levine JJ agreeing); FMJ v The Queen [2011] VSCA 308, [43]-[44], [49].

[58] R v Esposito (1998) 105 A Crim R 27, 43 (Woods CJ at CL).

[59] IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300, [17] and [54].

[60] R v Rooke [1997] NSWSC 363 (Barr J).

[61] Headland (a pseudonym) v The King [2023] VSCA 174, [59].

[62] R v Munday (Ruling No 1) [2016] VSC 26, [9] (T Forrest J).

[63] R v Lee [1950] HCA 25; (1950) 82 CLR 133; Haddara v The Queen [2014] VSCA 100; (2014) 43 VR 53, 56 [3]. But see Em v The Queen [2007] HCA 46; (2007) 232 CLR 67 ('Em v The Queen').

[64] Em v The Queen 103 [107] (Gummow and Hayne JJ).

[66] R v Em [2003] NSWCCA 374, [110].

[67] DPP v Myles (2021) 293 A Crim R 166, 175 [27].

[68] Section 138 of the Evidence Act addresses this question. However arguably there may be conduct that does not result in the exclusion of an admission pursuant to s 138, but does lead to the exclusion of the admission in the exercise of the s 90 discretion.

[69] Em v The Queen 93, [73] (Gleeson CJ and Heydon J) and 104, [112] (Gummow and Hayne JJ). See also R v Weaven (Ruling No 1) [2011] VSC 442 (Weinberg JA) at [38], where his Honour noted the potential overlap between ss 90 and 138. But see also Em v The Queen, where Gummow and Hayne JJ held that a consideration of reliability may have a role to play if the statement was not made in the course of official questioning (s 85(1)(a)), or as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued (s 85(1)(b)). That is, if s 85(1) has no application, then reliability may be considered. However, if s 85(1) is engaged, and the evidence not excluded pursuant to s 85(2), then considerations of reliability are not relevant to the exercise of the s 90 discretion: at 105 [113].

[71] Em v The Queen 104 [109] (Gummow and Hayne JJ).

[72] See See v Hardman [2002] NSWSC 234, where the plaintiff secretly recorded a conference with family members and lawyers, contrary to the Listening Devices Act 1984 (NSW). Bryson J ruled that the recording was inadmissible under s 138 because it was illegally recorded and an impropriety.

[73] Murray v The Queen [2017] VSCA 236, [46].

[74] Slater (a Pseudonym) v The Queen [2019] VSCA 213, [40].

[75] R v Meade (No 1) (2013) 233 A Crim R 40, 62 [98] (Weinberg JA).

[76] (2009) 83 ALJR 494, 501 [29]-[30] (citations omitted). The appeal was not directly concerned with s 138 of the Evidence Act.

[77] R v Cornwell [2003] NSWSC 97; (2003) 57 NSWLR 82, 89 [25], citing R v Dalley [2002] NSWCCA 284; (2002) 132 A Crim R 169.

[78] [2001] FCA 1164; (2001) 111 FCR 20, 44 [79] (emphasis added).

[79] See, eg, R v Grech; R v Kadir [2017] NSWCCA 288, [118]-[119], [138]. No issue was taken with the New South Wales Court of Criminal Appeal's approach to causation by the High Court: see Kadir v The Queen [2020] HCA 1; (2020) 267 CLR 109, 135 [41] ('Kadir').

[80] See DPP v Kaba [2014] VSC 52; (2014) 44 VR 526, 618 [337], referring to Cornwell v R [2010] NSWCCA 59; Re Lee [2009] ACTSC 98; (2009) 212 A Crim R 442.

[82] Evidence Act, Dictionary pt 1 (definition of 'probative value of evidence'). 'Probative value of evidence' is defined in the _Evidence Act'_s dictionary to mean, 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'.

[83] R v BD (1997) 94 A Crim R 131, 139 (Hunt CJ at CL), 151 (Bruce J).

[84] R v Cook [2004] NSWCCA 52, [37] (Simpson J, Ipp JA agreeing at [1], Adams J agreeing at [73]); DPP v Hague [2018] VSCA 39, [33] (Maxwell P and Beach JA), citing Hannes v DPP (Cth) [No 2] [2006] NSWCCA 373; (2006) 205 FLR 217, 293 [315] (Barr and Hall JJ).

[85] Tofilau 409 [20] (citation omitted).

[86] Cf Crimes Act 1958 (Vic) s 464A.

[87] R v Alexander [1994] VicRp 58; [1994] 2 VR 249, 256 (Crockett, Southwell and Cummins JJ).

[88] I note that the prosecution did submit that there was a contrary argument to be made, but they were not making the argument here.

[89] Transcript of proceedings, DPP v DT (Supreme Court of Victoria, Incerti J, 24 March 2021) 183.

[90] On the material I have, the only time VFPMS spoke with the parents was when Dr Lobo interviewed them on the afternoon of 28 November, I note that according to the Protection Report, Dr Tully of VFPMS reported at 11:30am on 30 November 2017 that 'VFPMS asked the parents directly if Oscar had been shaken as the nature of the injuries indicated that he had been. The parents were highly distressed and denied that they would hurt Oscar' (Exhibit 9, p 9). It is unclear when or by whom 'the parents' were asked this question.

[92] Christopher is mentioned in the 'Family History' section of Dr Lobo's report, the source of the information being MH, and otherwise not referred to.

[93] A similar observation was made by Gummow and Hayne JJ in Em v The Queen [71].

[94] CYFA s 198.

[95] Transcript of Proceedings, DPP v DT (Supreme Court of Victoria, Fox J, 27 March 2024) 38.

[96] It is not suggested the evidence was obtained unlawfully.

[97] In oral argument, senior counsel appeared to rely only on the evidence being obtained 'improperly', see Transcript of Proceedings, DPP v DT (Supreme Court of Victoria, Fox J, 27 March 2024) 37.

[98] Transcript of Proceedings, DPP v DT (Supreme Court of Victoria, Fox J, 27 March 2024) 38.

[99] A brief review of the texts and the Australian Law Reform Commission, Evidence (Interim) (Report No 26, August 1985) [965] suggests s 138(2)(a) is concerned with situations where interrogators manipulate the environment in such a way as to impair the mental freedom of an accused and make rational choice more difficult. For example, interrogators may keep a suspect in a hostile setting, play on their weaknesses, withhold crucial information or otherwise bring unfair pressure to bear on a suspect.

[100] [2005] NSWCCA 426, [23].

[101] Ibid. The third proposition was that concepts of "harassment" and "manipulation" suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence.

[103] [2011] VSCA 193.

[104] The accused was in the process of giving evidence before a jury, and the appeal was dealt with on very short notice and within one day.

[105] [2020] VSCA 190.

[109] Crimes Act 1958 (Vic) s 464.

[110] Evidence Act, Dictionary pt 1 (definition of 'offence').

[111] [1988] HCA 49; (1988) 165 CLR 642.

[113] Dennis C Pearce and Robert Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019).

[114] Perry Herzfeld and Thomas Prince, Interpretation (Thomson Reuters, 2nd ed, 2020).

[115] See J & G Knowles & Associates Pty Ltd v Commissioner of Taxation [2000] FCA 196, [22]-[26] and the cases referred to therein.

[116] The provision of protection reports to police officers is governed by s 207 of the CYFA; pursuant to that section, police officers may request and receive protection reports if they are investigating the subject matter of that report.

[117] It is difficult to be precise due to the errors in Ms Cooper's statement referred to above.

[118] While it was not the subject of argument, and not necessary to decide, I greatly doubt whether, even if Ms Cooper was an 'investigating official', she suspected the accused of committing an offence. Oscar was still alive; she knew very little about his medical condition; she had not spoken directly with Dr Lobo; the investigation was in its very early stages; police had received information contradicting Dr Lobo and were awaiting an autopsy (on the assumption Oscar would die); she did not expect the accused to be present in the home; and her focus was on the safety of Christopher.

[119] Transcript of proceedings, DPP v DT (Supreme Court of Victoria, Fox J, 10 April 2024) 85.

[120] Ibid 43; where Ms Cooper states 'I don't believe I would have said that on the night' when asked if she would have told him that it is better to cooperate and give accurate information.

[123] Evidence Act s 142.

[124] Surveillance Devices Act s 6. 'Listening device' is defined in s 3 to include a recording device.

[125] Ibid s 3 (definition of 'private conversation' para (1)).

[127] [2004] NSWCCA 52.

[128] R v Cook [2004] NSWCCA 52, [47].

[132] [2005] NSWSC 358.