DPP v Ghiller [2003] VSC 350

[2003] VSC 350

Criminal law - Evidence - Admissibility - Admissions made to undercover police operatives - Voluntariness - Reliability - Fairness - Public policy -Admissions admitted into evidence

2. The accused Mr Jason Manuel Ghiller is before the court charged with three counts of attempted murder, two counts of reckless conduct endangering life, four counts of causing serious injury intentionally, four counts of causing serious injury recklessly, 32 counts of armed robbery, one count of aggravated burglary, one count of arson and one count of obtaining property by deception; 48 counts in all. A number of the counts are alternatives. Substantially, the counts arise from a rampage of 28 armed robberies committed in the eastern and south eastern suburbs of Melbourne over a three year period from late 1991 to late 1994.

5. The robberies were of so-called soft targets, that is, targets without sophisticated or extensive security arrangements, being primarily takeaway food premises, restaurants and small businesses. The robberies were invariably committed by two men and involved a common modus operandus. One of the men is alleged by the prosecution to be the accused Mr Ghiller. The other is alleged by the prosecution to be his uncle, Mr Bandali Debs. The accused Mr Ghiller was between the ages of just 16 years and 18 years at the time of the robberies. He is now 27 years of age, having been born on 14 December 1975. Mr Debs is now 50 years of age. In circumstances to which I shall come, there was a gap of nearly six years between the last armed robbery, at the Palm Beach restaurant Patterson Lakes on 19 October 1994, and the arrest of Mr Ghiller on 31 July 2000.

8. On 31 July 2000 Mr Ghiller was arrested and charged with numerous offences, including, but significantly beyond, the 28 armed robberies. He made a substantially no comment interview. At the conclusion of the committal proceedings held in the Melbourne Magistrates' Court on 13 August to 10 September 2001 he pleaded not guilty to numerous counts and was committed for trial in this court. In this court he was arraigned before Teague J on 4 December 2001 and pleaded not guilty to one count on the presentment, namely Count 1, aggravated burglary, committed on 15 October 1991. That plea stood for the arraignment, and for the purposes of these empanelment proceedings, as putting in issue each of the counts.

11. Mr Debs has not been charged with any of the offences which the prosecution says he committed with his young nephew Mr Ghiller. That is because of lack of admissible evidence against Mr Debs. Mr Debs has declined to be interviewed about these offences. He presently is serving two life sentences of imprisonment without any minimum term, imposed upon him by me on 24 February 2003 for the murders at Cochranes Road, Moorabbin on 16 August 1998, of Sergeant Gary Silk and Senior Constable Rodney Miller. The admissions by this accused, Mr Ghiller, of Mr Debs' involvement in the offences the subject of this presentment before me, are hearsay as regards Mr Debs, and inadmissible against him.

14. The trial before a jury of Mr Ghiller in this court is due to commence in October 2003. The purpose of these pre-empanelment proceedings is to determine the admissibility of numerous admissions made by Mr Ghiller to covert police operatives as part of a covert police operation in the first half of 2000. The officers were members of Victoria Police attached to its Covert Investigation Unit.

17. The prosecution says the admissions by Mr Ghiller were voluntary and are relevant and admissible.

20. The defence says the admissions were involuntary and their reception into evidence would be unfair and contrary to public policy. The defence says the admissions were involuntary in that they were obtained as a result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure, and not in the exercise of free choice. The defence says it would be unfair to receive the admissions into evidence because of the improprieties of the obtaining of them and because of their unreliability deriving from the means and circumstances of their being obtained. Finally the defence says the court should exercise its discretion to exclude the admissions because it would be contrary to public policy to admit them into evidence. Essentially the defence says that the undercover police officers, as part of a covert operation, initiated and created a false scenario into which the accused was seduced. That scenario was pretended criminal activity. The defence says that on the prosecution case, the accused last committed an armed robbery on 9 October 1994 and had not committed an offence of violence for five years, four months. The defence says that the police consciously and deliberately activated what was inactive and dormant in the accused Mr Ghiller by intelligent psychological manipulation in the year 2000 into role playing of crimes and it would be improper to sanction such police conduct by admission into evidence of such tainted fruit.

26. First a brief review of the crimes charged. Then a review of the covert police operation.

29. The armed robberies, 28 in all, occurred between 28 December 1991 and 9 October 1994. The first was at the Eating House Restaurant at Dandenong, on 22 December 1991 and is Count 4 on the presentment. The last was at the Palm Beach Restaurant at Patterson Lakes on 9 October 1994 and is Count 47 on the presentment. The police investigation team codenamed them the Pigout robberies and I shall use that term for convenience. There were striking similarities, albeit that the modus developed over time, in the Pigout robberies. They all involved two men, one man more dominant than the other, and with consistent division of labour between them; they all involved developing disguise; they all involved the use of hand guns; they all involved, as I have said, soft targets; they all involved the terrorising of decent civilians; they all involved the tying up of the victims, nearly all (except where the victims were too numerous) by taping up them; and they were not urgent drug - desperate crimes, but were deliberate and articulated crimes. The first, as I have said, was the Eating House Restaurant robbery on 22 December 1991. The final was the Palm Beach Restaurant robbery at Patterson Lakes on 9 October in 1994.

32. The reference to the last robbery is necessary because of the circumstances which occurred and of the consequences of it.

35. At about 12.30 a.m. on 9 October 1994 the prosecution says that the accused, Mr Ghiller, together with his uncle, committed an armed robbery on the Palm Beach Restaurant. Both offenders were dressed in dark coloured clothing, balaclavas and were armed with hand guns. They stole money and personal property from victims present in the restaurant before fleeing because one of the victims was uncooperative and challenged their authority. As the two offenders fled from the restaurant they were pursued by some of the restaurant patrons. One of the patrons in fact obtained the registration number of Mr Ghiller's vehicle. The patron attempted to follow that vehicle in his own vehicle, but was prevented from doing so when a gun was pointed at him by one of the offenders.

38. At about 4.05 a.m. that morning Mr Ghiller attended the Dandenong Police Station and reported his vehicle stolen. The prosecution says that is because he realised that the registration number of his vehicle had been obtained by one of the victims of the Palm Beach Restaurant robbery. A statement was obtained from Mr Ghiller by local officers in which he stated that he had been at the Nu Hotel, Scott Street, Dandenong, at the time of the robbery and could produce witnesses to corroborate his story. On 13 October 1994 detectives from the Armed Robbery Squad spoke to Mr Ghiller concerning the reported theft of his motor car. Mr Ghiller maintained his story. In fact the car was subsequently found burnt out.

41. That brief review is elaborated, the prosecution says, by a passage in Recording B13 obtained by the covert operatives the subject of this preliminary inquiry on 16 April 2000 at depositions p.4971, commencing at line 1258, to the covert operative Gary.

"Jason: "Never even come close to fuckin' up except for one." Gary: "Yeh. Bad fuck up?" Jason: "Yeh." Gary: "Was it yours?" Jason: "Yeh, I lost my car over it." Gary: "Lost your car?" Jason: "Had to do an insurance job." Gary: "Ah, fuck me." Jason: "I had to say it got stolen." Gary: "Yeh?" Jason: "Got fuckin' numberplate and all taken of it. I was eighteen." Gary: "What a cunt. You lost your car? Lucky you're insured." Jason: "It was, it was a Laser." Gary: "Yeh." Jason: "Paid fuckin' twelve grand for it." Gary: "Yeh." Jason: "Only had it for about six months." Gary: "Yeh." Jason: "We're drivin' off." Gary: "Yeh." Jason: "This...(inaudible)... this job was a fuck up and a half, man, there was a fuckin' smart arse." Gary: "Yeh." Jason: "Kept mouthing off." Gary: "Yeh." Jason: "Yes, must getting the cunts I've been inside with." Gary: "Yeh." Jason: "I looked at me partner I was with to say well fuck what d'you do this time man." Gary: "Yeh." Jason: "There were heaps of people there and I thought, fuck, so we bailed out of that one, drove off without a fuckin'. Some cunt followed us and - " Gary: "Oh, you're jokin'." Jason: "Mate, I had to go, I had to go to a um, I had to go to a nightclub, get changed straight away and I met, I met up with a couple of mates who were pissed off ... (inaudible) ... Hey, man, hey, how are you, man, how long have you been here for?" Gary: "Yeh." Jason: "I've been here since 11, man, fuck, I've been here since 10 o'clock waitin' for ya. I was, like 2 when I met up with them." Gary: "Oh, fuck." Jason: "Full on cops question like, fuckin', you don't understand how much pressure." Gary: "Oh, that's fuckin' nasty, though. When you got a fuckin' back peddle like that. That's fuckin' hard." Jason: "I claimed on it, I still claimed on it though. I was able to."

45. A little later in the same conversation Mr Ghiller said (depositions p.4976 line 1485):

"First one I did was sixteen." Gary: "Yeh?" Jason: "And I haven't done it ever since, mate." Gary: "So?" Jason: "That last one fucked us up." Gary: "...(inaudible)...yeh." Jason: "And that's why they questioned me." Gary: "Oh, really?" Jason: "Yeh, because after that one, like nothing, was done anymore." Gary: "Fair dinkum." Jason: "And I said why the fuck are you?" Gary: "Yeh." Jason: "I said why the fuck are you hasslin' me for? They said, oh well, they said we found it odd than as soon as, like, you know your car got found burnt out and, and it was stolen and everythin', it was supposedly taken." Gary: "Yeh." Jason: "Ah, all of a sudden all of these things stopped." Gary: "Ah, Jesus. Fair dinkum?" Jason: "And that's what I said to this guy, I said we're gonna have to do a couple more or else they're gonna know." Gary: "...(inaudible)..." Jason: "They're gonna, they know, it's this cunt man, he's stopped." Jason: "No we didn't because they were on our, fuckin on our arse mate."

49. In conversation B16 on 30 April 2000 the following was said (depositions P.5096 line 1998 - Pat being another police covert operative):

Jason: "Yeah but he came up to attack us, like ah, we were, we were just rounding all the people up to move them aside." Pat: "Yeah." Jason: "And he's goin' oh fuckin' he's going shit and we're goin....(inaudible)..." Pat: "Just a punch up?" Jason: "...(inaudible)...I looked at me partner I said, if they...(inaudible)...and he sort of lunged for us and he just, he just knocked him out and then we fucked off." Jason: "But that was it...(inaudible)..." Pat: "Yeah." Jason: "And then jumped into the car and all of a sudden there was a car behind us with its high beam on and that's it got...away and that was it...(inaudible)...(inaudible)...I ended up going to a nightclub." Gary: "... (inaudible) ..." Jason: "He ended up going home and the car was ah discarded the next day." Pat: "Yep." Jason: "Burnt to a crisp. Copped hell over it, ... (inaudible) ... questioning after questioning. It's at the cop shop for hours." Gary: "But that was years ago wasn't it?" Jason: "Yeah but I had a good um, I had a good alibi. Like I said I went to that, straight afterwards, I went and got .. clothes went to a club and all me mates were pissed ... (inaudible) ...".

53. After that call which was too close for comfort the prosecution says Mr Ghiller desisted from the armed robberies which had been proceeding with Mr Debs for three years since 22 December 1991.

56. As I have said there are a number of other counts on the presentment. Serious though the Pigout robbery counts are, there is even more grievous criminality alleged in relation to Mr Ghiller. That arose out of the covert operatives taping of conversations in the first half of 2000 of Mr Ghiller, and as a consequence of those matters further counts are preferred against Mr Ghiller. They are Counts 7 and 8, armed robbery and intentionally causing serious injury at the Shooters Shop, Springvale, on 28 February 1992; Counts 19 and 16, armed robbery and attempted murder at the Clayton Newspower Agency, Clayton, on 29 November 1992; Counts 30 and 31, armed robbery on McDonald's staff and guard near Commonwealth Bank nightsafe at Fountain Gate Shopping Centre on 16 May 1993; Count 33, armed robbery at the Bank of Melbourne, Berwick, on 16 October 1993; and Counts 42 and 44, attempted murder of Sergeant Alan Beckwith and of Constable Jason Bryant at Hallam on 19 September 1994. As a footnote also Count 48, a later fraud count, on 17 January 1995.

59. The counts of attempted murder in relation to the newsagency at Clayton on 29 November 1992 - which were not part of the Pigout robberies - revealed, the prosecution says, by admissions of the accused to covert operatives, involved a violent attack upon two persons who were newsagents at Clayton Road, Clayton, in the early hours of Sunday 29 November 1992. At that premises at 3 a.m. Mr and Mrs Yacoub, a middle aged couple, commenced working at the agency preparing newspapers for delivery. At about 4.20 a.m., the prosecution says, Mrs Yacoub was confronted by two male offenders in the rear work area of the newsagency. They were armed with handguns and wearing balaclavas. They demanded money from her at gunpoint. Her husband, Shawki, entered the work area, saw what was happening and called to the offenders not to hurt his wife. He then pushed his wife onto the ground and lay on top of her to protect her from the offenders. On doing so, the larger of the two offenders - and the prosecution says it was clearly Mr Debs - then took aim from close range and fired one shot at Mr Yacoub. The bullet entered into the upper left side of his back, just below the shoulder blade. Mr Debs then pulled Mrs Yacoub to her feet and demanded money from her and struck her over the left eye with the pistol, causing a laceration. Mr Debs told the present accused, Mr Ghiller, to go and check the till. While Mr Debs kept the Yacoubs under guard, Mr Ghiller entered the shop area in order to steal money but came back empty handed. Mr Debs removed the wallet from his back pocket of the grievously injured Mr Yacoub and stole $16. Both offenders then decamped.

62. The prosecution says that the covert recordings of Mr Ghiller in the first half of 2000 reveal more of that robbery. In conversation B21 on 15 May 2000 at depositions 5235, line 773 the following was said:

Gary: "I hope you don't still feel guilty about that bloke you're tellin' me about". Ghiller: "Which one?" Gary: "That's not keeping you awake at night?" Ghiller: "Nah, are you talking about the wheelchair cunt?".

I interpose to say that Mr Yacoub was paralysed by reason of being shot and became a paraplegic.

Gary: "Yeah, the bloke in the wheelchair, yeah". Ghiller: "Nah, that's forgotten about, mate". Gary: "Thank God for that". Ghiller: "No, I don't think about shit like that, that's mate, I couldn't even remember half the shit -" Gary: "Yeah". Ghiller: "- I done. Serious, I couldn't even remember it mate, I don't want to either".

69. Other counts on the presentment which are not part of the Pigout robberies and which were, the prosecution says, revealed by the covert operation are Counts 42 and 44, the attempted murder of Sergeant Beckwith and Constable Bryant at Hallam on 19 September 1994.

72. The circumstances briefly, the prosecution says, are these. On Saturday evening, 25 June 1994, a set of registration plates were stolen from a vehicle at Coffey Ford at Dandenong. On the same night a Nissan Bluebird was stolen from Berwick Nissan at Berwick. Three months later, on 19 September 1994, a police unit was patrolling in Hallam Road, Hallam. Constable Bryant was driving and Sergeant Beckwith was the passenger. They were travelling north along Hallam Road and observed a vehicle leaving the driveway of Bowans Timber and Hardware. This vehicle was the stolen Nissan Bluebird which was displaying the stolen registration plates. The police were unaware of the status of either the vehicle or its plates but the driver of the vehicle appeared to be impatient and so the police pulled over, waited for the vehicle to pass, then activated their police lights and headlights and pulled the vehicle over. Sergeant Beckwith opened the passenger side of the police vehicle and began to alight from the vehicle. As he did so he looked up and he saw that Mr Debs had alighted from the Nissan and was aiming a handgun directly at him. The prosecution says Mr Debs then fired a shot at Sergeant Beckwith, who threw himself back into his seat. Constable Bryant ducked for cover behind the dashboard and felt the force of glass hitting him in the left side of the face. Two further shots were fired by Mr Debs and struck the police vehicle. Sergeant Beckwith yelled to Constable Bryant to reverse the police vehicle as both members attempted to remove their revolvers to enable them to return fire to defend themselves. The Nissan then revved loudly and accelerated away which caused its wheels to spin. By this time the officers had removed their revolvers and had discharged five shots at the offender's vehicle but the Nissan sped off in a northerly direction towards the Princes Highway and disappeared. Both brave officers attempted to follow the Nissan but lost it. Fortunately, neither officer was shot by the bullets fired at them. One bullet hit the near side bonnet of the police vehicle and two bullets hit the windscreen and went on to hit the dashboard. A day later on 20 September 1994 the Nissan Bluebird with the stolen numberplates was found destroyed by fire behind the Fountain Gate Shopping Centre, Narre Warren.

75. The prosecution says that in the first half of 2000 a conversation with the accused by undercover police operatives reveals the following in relation to those two counts. On 24 May 2000 on B26 at depositions 5453, line 720 the following appears:

Jason: "We've been shot at before." Gary: "Have ya?" Jason: "Yeh." Gary: "Fair dinkum." Jason: "By cops." (laughs.) Gary: "Ha, ha, that's fuckin' sensational. Yeh, what happened? Ha, ha, that's a fuckin' pissa." Jason: "Went to this, like don't fuckin' tell like, even these cunts, don't tell them." Gary: "No." Jason: "I don't want no one to know about this shit." Gary: "No, mate." Jason: "Ah a couple, ah, a few years ago, we were just lookin' around at car yards that night and we saw the fuckin' keys on a boot lid." Gary: "Yeh." Jason: "And mate, it was that night, and no bull shit, those keys were for the car." Gary: "So..." Jason: "A brand, we got a brand new car, start it and just fuckin' drove it away, fuckin' brand new, zero k's on the clock." Gary: "What was it?" Jason: "A brand new Nissan Blue Bird." Gary: "Beautiful, yeh." Jason: "And ah, we used that, we had dummy plates, we used that for ages." Gary: "Yeh." Jason: "And then, um, fuckin' one time we went through a real dry patch, real bad. So we just doin', fuckin', hit and runs mate, just smash and grabs." Gary: "Yeh?" Jason: "We're using this thing." Gary: "Oh, fuck." Jason: "Did about fuckin' eight in one night, one after another, just going bang bang bang bang, just grabbed as much shit as we could." Gary: "Yeh." Jason: "And then we pulled out of a place and as we pulled out of a place, cops have driven past." Gary: "Oh." Jason: "And I thought, oh fuck." Gary: "Heart sink?" Jason: "And I was driving, yeh." Gary: "Yeh." Jason, "Fuck you, I was driving, straight away my partner pulled out his rod and he goes." Gary: "Not getting caught." Jason: "Just fuckin', he goes stay on the speed limit. I stayed under the speed limit, they did a U'y straight away, straight away." Gary: "Yeh." Jason: "Come up right beside us, behind us and the lights started flashing and I said." Gary: "Fuck, yeh." Jason: "Fuckin' hell, what are we gonna do, what are we gonna do?" Gary: "Yeh." Jason: "He goes, and I kicked it down a boot and he goes no, no, no, no, pull over, pull over." Gary: "Yeh." Jason: "So I like, I pulled over, he's gotten out, opened the door and he's just gone fuckin' bang, bang, bang." Gary: "Fair dinkum." Jason: "And, ah, and then like they shot back a couple of times." Gary: "Fuckin' you would have been shit." Jason: "And he shot, he shot, yeh, I was fuckin' like this, and then he shot a couple of more times and then I took off." Gary: "Yeh." Jason: "And they didn't even come after us, they just stayed there." Gary: "Fair dinkum?" Jason: "Oh, mate, my god." Gary: "Ha, ha, ha." Jason: "No more jokes, man, they had two choppers out, they went fuckin' mental, they went mental." Gary: "Fair dinkum?" Jason: "Yeah, and then we, um, got rid of the car." Gary: "Yeah." Jason: "I think it was a week." Gary: "Fuck, that's a good effort." Jason: "A couple of days after." Gary: "Yeh." Jason: "I can't remember but, but this was years ago, a couple of days after we burnt the cunt." Gary: "Yeh." Jason: "At fucken Fountain Gate Shopping Centre, we put it at the back where despatch is, Safeway."

79. Despite that event there was yet another Pigout robbery which then occurred, being the final one. The prosecution says that there were some similarities in that in both instances the vehicle was burnt but in the first instance, that of the attempted murder of the police officers, there was no evident connection of the stolen vehicle to Mr Ghiller because the registration plates were stolen, and thus he did not desist from his criminal conduct; but after the last Pigout robbery because the registration plate number of Mr Ghiller's vehicle was taken, he not only burnt the car but desisted from further Pigout robberies. That is what the prosecution alleges here.

82. I shall not proceed with further citations from the vast volume of covert material. It is plain that if admissible the covert material is of high probative value to the prosecution in this case.

85. There is an interface with the investigation into the murders of Sergeant Gary Silk and Senior Constable Rodney Miller on 14 August 1998. That arises in the following circumstances. Four years on the Pigout robberies remained unsolved, as did the attempted murders that I have described. Then Sergeant Silk and Senior Constable Miller were murdered at Cochranes Road, Moorabbin on 16 August 1998. Their murderers were Bandali Debs and Jason Roberts. The present accused, Mr Ghiller, had nothing to do with the murders of Sergeant Silk and Senior Constable Miller. The murders of those officers on 16 August 1998 were preceded by a series of armed robberies on soft targets in the eastern and south eastern suburbs of Melbourne, 10 in all, from the 9 March 1998 to 18 July 1998. The Silky Emperor Restaurant late on the night of 15 August 1998 was to be the next in the series the 11th, except that the robbers realised they had driven into a police stakeout. They aborted the plan for an eleventh armed robbery and sought to leave the scene. The robberies were known to investigating police as the Hermada robberies. When the investigating officers pursued the robbers they were murdered, at Cochranes Road, Moorabbin. At the time of the killings of those two officers the identity of their murderers was unknown. It remained unknown despite extensive and intensive police enquiry for 12 months. Of course, numerous persons were investigated in relation to the killings. Thus, it was, by August 1999, there were no arrests for the Pigout robberies and no arrests for the murders of Sergeant Silk and Senior Constable Miller or for the Hermada robberies.

88. There was, however, a break-through in the investigation into the killings of Sergeant Silk and Senior Constable Miller in August 1999. As a consequence of that breakthrough, electronic surveillance by means of listening device and telephone intercept commenced in November 1999 of this accused, Mr Ghiller, and of Mr Debs, his uncle, and of Mr Roberts, the partner in 1999 of Mr Debs' elder daughter, and of other persons. Ultimately, to look ahead, Mr Debs and Mr Roberts were arrested on 25 July 2000. On that day Mr Debs was charged with the murders of Sergeant Silk and Senior Constable Miller. After interview Mr Roberts was released for a short period and was rearrested on 15 August 2000 and also charged with the murders. Thus the period between the initiation of active interest in Mr Debs and Mr Roberts and their arrests was September 1999 to July 2000. The period of the covert operation in relation to Mr Ghiller was February 2000 to July 2000.

91. Detective Sergeant Mark Butterworth, as part of the Lorimer Taskforce investigating the murders of his fellow police officers, was leading the team investigating Mr Ghiller. It is apparent from the statements of Detective Sergeant Butterworth, tendered below as Exhibits 212A and 212B and made on 5 and 8 December 2000 respectively, that Mr Butterworth was leading a team specifically directed to investigate Mr Ghiller. The statements, by the third paragraph of each respectively at 3452 and 3456 of the depositions state:

"In September 1999 a decision was made to investigate the possible involvement of Jason Ghiller and Bandali Debs in the Pigout series of robberies."

No doubt that was expressed in that way for reasons both of relevance and to avoid prejudice to the accused Mr Ghiller by not associating him in the statement with the murders of the two police officers, Sergeant Silk and Senior Constable Miller. However, as the Detective Sergeant readily stated in cross-examination at the committal at p.1408 on 10 September 2001, in fact Mr Ghiller was one of three persons, being Mr Ghiller, Mr Debs and Mr Roberts, who were the subject of Operation Solly and which was established, as the Detective Sergeant stated in cross-examination below, to investigate Messrs Debs, Roberts and Ghiller in relation to the murders of Sergeant Silk and Senior Constable Miller.

96. From the foregoing narrative it will be abundantly clear the parallels between the Pigout robberies and the Hermada robberies as an investigative matter.

99. As I have said, in November 1999 lawful listening devices and phone intercepts were in place in respect of those three persons, Mr Ghiller, Mr Debs and Mr Roberts. Detective Sergeant Butterworth stated in evidence below that on 12 January 2000 a high level decision was taken to seek to build up a relationship between an undercover operative and Mr Ghiller. Mr Ghiller had been a suspect in the Pigout robberies, but as I have said, that investigation got nowhere in 1994. In cross-examination below Detective Sergeant Butterworth at 1421 said in relation to the undercover operation commencing in early 2000 of Mr Ghiller:

"The aim of the operation was to establish whether he was involved - the predominant aim was to establish, one, whether Mr Ghiller was involved in the murders of Sergeant Silk and Senior Constable Miller and two, to try and establish contact with either Mr Debs or Jason Roberts."

103. In developmental cross-examination below Detective Sergeant Butterworth acknowledged that by 1 April 2000 Mr Ghiller was "starting to firm up as a good suspect" in relation to the Pigout robberies and by 16 April "I suppose there was enough there to arrest him, yes", Mr Butterworth going on to say, "I doubt whether I'd be arresting anybody on the basis of a broad admission like that". Thus the covert operation continued in relation to Mr Ghiller.

106. The initiating action for the covert operation following the decision which Detective Sergeant Butterworth spoke of, being the high level decision on 12 January 2000, to conduct a covert operation in relation to and "to seek to build up a relationship between an undercover operative and Ghiller", commenced on 31 January 2000 with an apparently routine and innocent phone call. It escalated from 1 April 2000, which was the first initiating action involving pretended criminality, and culminated on 31 July 2000 when Mr Ghiller was arrested.

109. The B1 to B56 series of recordings are the recordings which reveal the undercover conversations. The leading undercover operative was so-called Gary McKenzie, a police officer with that assumed name. He made 26 statements which appear at pp.2973 to 3050 of the depositional material, all dated 7 December 2000, and I have read those statements. He also made notes, which commence at 3076 of the depositional material, commencing on 31 January 2000 at 3051, and I have read those notes. They are not insignificant because the defence relies upon the warming up, or as the defence would have it the softening up, of the target, Mr Ghiller, before the initiating action involving the proffered criminality to the accused on Saturday 1 April 2000. I have read that material also.

112. From 1 April 2000 commencing at Recording B1 and running through to B56 are the tape recordings (now on CD), nearly all of which are extremely clear to listen to and which have been transcribed in the depositional material. B1 commences at 4476, and B56 concludes at 6507.

115. The first statement of Mr McKenzie, relating to the initiating meeting with the accused Mr Ghiller on 1 April 2000, summaries the initiating offer of criminality by the operative to Mr Ghiller as follows:

"I then offered Ghiller some part-time work. Ghiller asked whether it would be legal or illegal. I stated it wouldn't be all legal. Ghiller stated that he would be prepared to do any work." (D.2974).

In evidence before me Mr Gary McKenzie stated the response of Mr Ghiller to being asked "if he was interested in doing any part-time work for me" was that he "gratefully agreed" (T.41).

120. The final statement of Mr McKenzie appears as follows, at page 3049, in relevant part:

"On Sunday the 3rd of July 2000 I sent a text message on my mobile phone to Jason Ghiller confirming that I pick up Ghiller at 10.00 a.m. the following day. Ghiller returned the message to me stating, 'No probs'. On Monday the 31st of July 2000 I received a text message from Ghiller asking how long I was going to be. I replied with, 'Three minutes'. At approximately 9.54 a.m. Covert Operative Billy and Covert Operative Pat and I attended at 12 Pinnacle Way, Hampton Park. Jason Ghiller was waiting in his front yard. At this stage I was driving, C.O. Pat was in the front passenger seat and C.O. Billy was in the rear driver's side seat. Ghiller then got into the rear passenger seat of the vehicle. I then drove to the city. During this time we had general conversation."

124. The penultimate paragraph of these 26 statements states simply:

**"**At approximately 10.45 a.m. we attended at the St Kilda Road police complex, where members of the Lorimer Taskforce arrested Ghiller."

128. As is usually the way, the actual recording of the events is more graphic and probative. Appendix B56 at p.6506 from track 40 onwards records the light-hearted conversation between Mr Ghiller and the operatives, commencing with Mr Ghiller saying, "I'll go to the Daily Planet after this", and then as the police turn into the Police Complex:

Gary: "Up your arse a couple of times... (inaudible)...(humming). You bloody ripper. Maybe he's got everything ready." Jason: "Fuckin', what are those cunts doing?" Gary: "Jase, I've got some bad news for you, buddy. You were right. It's a set-up, mate, and we're from the government. What I'm going to get you to do, cooperate with these blokes. They are from the Lorimer Taskforce, mate, OK? It's your last hope. You'll be given what you want. If you give them what you want, everything will be fine. Everything that you've told me has been taped. We're just doing our job, and that's it, mate, all right? As long as you understand that, just help them out, mate."

133. If this were a case of Mr Ghiller being charged with the murders of Sergeants Silk and Senior Constable Miller on the basis of subsequent admissions by him to the conversation on 31 July 2000, one could well imagine an argument of inducement strongly being made by defence counsel. However, as I have said and I repeat, Mr Ghiller had nothing to do with the murders of Sergeant Silk and Senior Constable Miller, and that final statement, which was plainly directed to the investigation being conducted by the Lorimer Taskforce into those deaths, does not work back upstream to pollute the admissions made antecedently by Mr Ghiller in relation to the counts with which he is now before the court, being the Pigout robberies and the attempted murders and related counts and arson involving the stolen missing vehicle, which is Count 46.

136. So much for the interface between the Lorimer investigation and the matters presently before this court.

139. The covert operation revealed that Mr Ghiller had nothing to do with the Cochranes Road murders. The prosecution says it revealed his part in the Pigout armed robberies between 1991 and 1994, and a number of other crimes notably the attempted murder of Mr Yacoub on 29 November 1992 (Count 16) and of Sergeant Beckwith and of Constable Bryant on 19 September 1994 (Counts 42 and 44). As I have said, on 31 July 2000 Mr Ghiller was arrested and charged with numerous of those offences. He was then fingerprinted. His prints later were matched to prints left at the scene at the Rowville Tourist Park, Rowville in an aggravated burglary on 15 October 1991 and at the scene at the Shooters Shop, Springvale in an armed robbery on 28 February 1992. Thus Counts 1-3 (Rowville) and Counts 7-9 (Springvale). On 10 November 2000 Mr Ghiller was interviewed by police in relation to those matters and made a substantially no comment interview.

142. Learned leading counsel, Mr Montgomery, who most eloquently submitted criticisms of the material sought to be relied upon by the prosecution, and leading Ms Gwynn, put, as is undoubtedly the case, that the covert operation involved extensive and sophisticated role playing, including the conducting of what the accused was led to believe were very serious crimes, whilst he was present with the covert operatives. The crimes were role played by a gang, all of whom were undercover police operatives. The intended crimes were indeed serious and violent crimes, and dramatically role-played, but they were not real.

145. The pretended crimes, and the role-playing, may be summarised as follows (containing myself to the main events). After two months of developing a relationship with Mr Ghiller in which Mr Ghiller discussed his marital and financial problems and revealed low-level criminality, on 1 April 2000 the undercover operative Gary proffered part-time crime to Mr Ghiller as I have shortly reviewed in paragraph 35. Then on 4 April 2000, after a meeting with another covert operative at a hotel in Richmond, Gary and Mr Ghiller discussed doing a run-through of a flat of a drug dealer in Richmond. Mr Ghiller was given $100 by Gary. On 6 April 2000 the pretended run through occurred while Mr Ghiller remained outside in the vehicle. He was given another $100 by Gary for being the driver. On 30 April 2000 in Richmond, Gary and another covert operative did a pretended burglary while Mr Ghiller remained in the car as a lookout. He was given $300 for that task. On 17 May 2000 in Glen Waverley, Gary picked up a pretended illegal parcel while Mr Ghiller remained in the car. On 24 May 2000 an extrapolated scenario was played out by Gary and other covert operatives and in which Mr Ghiller took part. It was a violent pretended kidnap (of another police operative) on the southern bank of the Yarra River in South Yarra (in a controlled area at night) and removal of the pretended victim to a remote area in Kinglake where the victim was threatened with death. On 11 June 2000 Gary and Mr Ghiller drove to Melbourne Airport and then followed a pretended target to the city as part of a plan to kidnap the target in the future as the target was an illicit diamond importer. On 20 June 2000 in the one matter which had connection with reality, a contact (Zoran) of Mr Ghiller's delivered a vehicle to Gary's (pretended) premises and the vehicle remained there while Zoran made a fraudulent insurance claim that the vehicle had been stolen. Mr Ghiller stated that he was going to strip the car for parts and did so. On 29 June 2000 Gary drove Mr Ghiller to Port Melbourne to rehearse preparations for a "big job" including examination of firearms. On 17 July 2000 Gary and Mr Ghiller were in Adelaide and drove back to Melbourne as part of a pretended scenario in which Mr Ghiller was told he would be part of the criminal gang by Terry (a covert operative pretending to be the criminal head) and that Mr Ghiller would earn $150,000 - $200,000 in the coming weeks. At this stage, with the arrests of Mr Ghiller, Mr Debs and Mr Roberts imminent, the covert operatives essentially were stalling for time.

148. I have read a large amount of material, for the purposes of this pre-empanelment submission, in relation to that extensive and dramatic role playing. I have read the evidence including cross-examination at the committal, the statements and notes tendered at the committal, the transcripts of the covertly recorded conversations, the B Series from 1 April 2000 and 31 July 2000, and I have listened to the CDs of the B Series. Some of the CDs I have listened to more than once. I have paid attention to the oral evidence led before me on this pre-empanelment proceeding.

151. Mr Montgomery submits first, and in analytically logical sequence, that I should not be satisfied that the admissions contained on the B Series tapes were voluntary. He submits, as I said at the outset of this ruling, that the admissions were obtained as the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, and not in the exercise of free choice. He put that there was "persistent, lengthy and detailed interrogation", to use Mr Montgomery's words, by Gary of the accused; that such interrogation was founded by the cultivation of a relationship of trust by Gary with the accused, which allowed Gary to exploit the accused's "vulnerabilities," another word of Mr Montgomery; that the creation of a gang culture by Gary produced an atmosphere of intimidation, duress and pressure; and that the decision to question the accused by means of a covert operation rather than in a formal context, denied the accused the opportunity to exercise his legal rights. Mr Montgomery finally relied upon the duration of the operation, as well as its constituent parts and its character and quality and the inter-weaving of the "interrogation" as it was called by Mr Montgomery, in respect of the accused's past criminal conduct, with pressure, as Mr Montgomery said it was, exerted by Gary upon the accused in respect to the police shootings investigation.

154. Significantly at the outset, it needs to be observed that the accused at no time was in custody.

157. Under Part 111, Division 1, Sub-division 30A Crimes Act 1958 provision is laid down by the legislature as to proper process when persons are in custody. That protocol is not to be deflected or subverted. But Mr Ghiller was not in custody. Under s.464(1) he was not in custody and under s.464(2) Gary, the covert operative was not an investigating official because he was a member of the Police Force engaged in covert operations under the orders of a superior. The primary authorities relevant to voluntariness and which I apply are McDermott v. R[1]; R v. Lee[2] and R v. Collins[3] (a case which I think should have been reported also in the Commonwealth Reports as it is a most useful case). The test is whether the statements of the accused were made in the exercise of his free choice to make them.

160. I am affirmatively satisfied that the accused, Mr Ghiller, acted and spoke voluntarily in his dealings with the undercover operatives on 31 January 2000 to 31 July 2000 and most relevantly, on 1 April to 21 July 2000.

163. Having listened attentively to the recordings and read the material and considered Mr Montgomery's eloquent submissions, the following appear to me to be the central matters. First, the accused, at all times, was a free citizen. He was not in police custody. Second, as is apparent from the tone, emphasis and speed of the conversations on the CDs, the accused was not only a free citizen, but was speaking and acting enthusiastically and often of his own sole initiative in the intended crimes. Next, he was acting as an equal. His will was not overborne; he was not menaced or threatened; rather, he kept backing up, he kept coming back for more. He was not leant on; he was willingly joining in.

166. Importantly, in the face of such a volume of material which speaks for itself, the accused did not give evidence before me that his will was overborne or that he was acting involuntarily. Nor did the accused give evidence that his words were bravado, or derivative from another person's experience. I have listened to the CDs with in mind the question of voluntariness, bravado and reportage (by others) as hypotheses necessary to be considered, including when the accused does not propound them by evidence. I must say that the accused's statements recorded on the CDs do not strike me at all as involuntary or derivative. Whilst doubtless there was some bravado, the outstanding characteristic of the accused's statements is enthusiasm for the task.

169. Mr Ghiller substantially declined to answer questions in police interview.

172. No inducement was offered to him, nor was such suggested before me by his counsel.

175. The reality was there was elaborate role-playing over an extended period of time. I have already said I agree with the essence of Mr Montgomery's submission that it was of serious (pretended) criminality. But the accused was not, in my view, pressured, leant on, no special relationship was exploited, he was acting on equal terms, he was not interrogated, and he was speaking enthusiastically as a free citizen to equals. Accordingly, I reject the submission that the material reveals any lack of voluntariness on behalf of the accused.

178. The second submission by Mr Montgomery was that the court should exercise its discretion to exclude the confessional material, if the court is satisfied as to voluntariness, because not to do so would result in unfairness to the accused and deny him the right to a fair trial. Mr Montgomery, in essence, relied upon the same data as that that I have previously reviewed. He put that the material was improperly obtained and, further, that it was unreliable because of the means and circumstances by which it was obtained: in particular that it was obtained by interrogation in the atmosphere of a criminal gang, that there was a special relationship created by Gary which he exploited in relation to the accused and the accused was thereby denied the opportunity to exercise his legal rights, that pressure was placed upon him and that it would be of forensic disadvantage to the accused if the material was placed before the jury.

181. The test for unfairness is whether it would be unfair to the accused to receive the evidence against him. The primary authorities are R v. Swaffield[4]; Cleland v R[5]; Foster v. R[6] and R v. Heaney and Welsh[7]. The covert operation was, as Detective Sergeant Butterworth made clear below, an investigative tool - primarily about the Cochranes road murders, but also about the Pigout armed robberies. The covert operation was not a means to future crime with which the accused was thereafter to be charged. For the reasons I have stated, I consider that the accused was acting as a free citizen. He was not in police custody, he had not been interviewed about or charged with any offence, he was acting and speaking voluntarily, enthusiastically and often of his sole initiative, and his will was not overborne. Certainly there was elaborate role-playing of serious criminality over an extended period, but in that elaborate role-playing it was Mr Ghiller who kept backing up and coming back for more.

184. In relation to the reliability question, having heard the tapes, I consider they are not unreliable. Indeed, although I have not rehearsed it in this already too lengthy judgment, there is independent corroboration of his admissions by numerous witnesses including the police officers whom Mr Debs attempted to murder in

Mr Ghiller's company and the numerous decent citizens who were subject to the Pigout robberies, and by other extrinsic evidence and material.

187. In relation to the exercise of legal rights, which is said by Mr Montgomery to be denied to Mr Ghiller, as I have said Part 111, Division 1, Sub-division 30A does not apply to these conversations. Certainly I agree with Mr Montgomery that if the accused had been arrested, the court would set its face against any subverting or avoiding of the requirements of that sub-division. But the accused had not been arrested. Mr Montgomery said, relying upon in part the cross-examination of Detective Sergeant Butterworth below which I have recited, that the accused could have been arrested earlier for a handful of the Pigout robberies. To that it may properly be responded that the police were on serious business here. There was a significant further way to go, and, indeed, the further conduct of the covert operation went far beyond a handful of Pigout robberies and involved a series of attempted murders, according to the prosecution. Thus it could properly be said that the police were entitled to not arrest the accused on one or two or three armed robberies, given the serious further business that they were about.

190. In relation to Mr Montgomery's next point, that the accused will suffer a forensic disadvantage if the material is admitted before the jury, of course it is a forensic disadvantage to Mr Ghiller to have this material before the jury. That is not the question. The question is, is it unfair or improper, and in my view it is not.

193. The final matter, and I will add these without reading them out, at this hour, are the relevant authorities - notably R. v. Swaffield[8] (the present is not a case, as I have repeated, of the accused being charged or in custody); R. v. Ridgeway[9]; R. v. Dewhurst[10]; R. v. Collins[11]; R. v. Heaney & Welsh[12], and the Canadian cases which are referred to in the authorities - on the matter of public policy. I have also been most assisted by a very useful judgment of Justice Osborn, R. v. Tofilau[13] and the authorities he there reviews. The material is familiar to us all and I will not here orally make lengthy citations of the cases. I shall footnote them.

196. The matter which has occupied particular attention by me is the question of public policy. Mr Montgomery has submitted that the court should exercise its discretion to exclude the confessional material because not to do so would be contrary to public policy. Mr Montgomery in particular relies upon, again, what he calls the denial of the accused to the opportunity to exercise his legal rights, the potential risk to public safety arising from the covert operation, the commission of criminal acts by the police, the procurement of criminal acts by the police, the obtaining of evidence by improper conduct and inducement by police to the accused to recommence criminal activity.

199. Lateral to this question, but I think of prudent recourse, is the judgment of Lord Shaw in Scott v. Scott[14] which concerned the principle of open justice. Having cited the philosopher Jeremy Bentham in relation to open justice, Lord Shaw goes on - and I interpolate that is not the question here but the principle I think very clearly expressed by him - thus:

**"**The right of the citizen and the working of the constitution, in the sense which I have described, have upon the whole, since the fall of the Stuart dynasty, received from the judiciary - and they appear to me still the demand of it - a constant and most watchful respect. There is no greater danger of usurpation than that which proceeds little by little, under cover of rules of procedure, and at the instance of judges themselves."

203. Mr Montgomery, in both an analytical submission and in a crie de coeur, submits that there must come a time when the courts draw a line as to covert conduct by the police, and this is an instance of the line needing to be drawn. Mr Montgomery said that the danger, as indeed Lord Shaw saw so clearly in 1913, that there is no greater danger of usurpation of rights than that which proceeds little by little, under cover of rules of procedure, and at the instance of the judges themselves.

206. There seem to me to be five essential matters bearing on the question of public policy. The first is, and I repeat, the accused was a free citizen and not in police custody. The second is the accused was acting and speaking voluntarily. The third is the accused was acting and speaking enthusiastically and often of his own sole initiative. The fourth is, and this is significant, no criminal conduct in fact occurred. It was all an artificiality, a creation, what would be called in the literature, a conceit. The fifth is the accused was not encouraged into conduct in order to arrest and charge him for that conduct. That matter is of special significance.

209. In summary the police conduct, although at times highly dramatic, was not criminal. It was conducted in highly controlled circumstances and was not dangerous to anyone. It was role play, an artificiality. It should not to be excluded either because it was role playing, for covert operations usually are, or because it was dramatic. It is to be excluded, if voluntary and lawful, only if public policy requires it.

212. Here no crimes were committed. The only actual criminal activity by Mr Ghiller was the Zoran car fraud episode which was a marginal and limited matter, in substance the police continuing their role playing at the instance of the accused in order not to defeat the overall covert operation. The police role in the Zoran matter was passive. (The hot water service matter, which I have not reviewed, was merely prospective).

215. So although the role playing was highly dramatic it was not unlawful, it did not involve the commission of any crimes by police officers, it was not done in order to arrest and charge the accused for that conduct, and it was done as an investigative tool in order to solve very serious crimes. In my view it would not be contrary to public policy to admit this material and, on the contrary, it is consonant with public policy to admit it.

218. For those reasons I am not satisfied any one of the three heads or a combination of them relied upon by Mr Montgomery in his and Ms Gwynn's excellent submissions, has been made out. Accordingly I rule that the covert material sought to be relied upon by the prosecution in this case in proof of the crimes charged against Mr Ghiller is admissible.

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[1] (1948) 76 C.L.R. 501.

[2] [1950] HCA 25; (1950) 82 C.L.R. 133.

[3] (1980) A.L.R. 257.

[4] [1998] HCA 1; (1998) 192 C.L.R. 159.

[5] [1982] HCA 67; (1982) 151 C.L.R. 1.

[7] (1998) 4 VR 636.

[8] [1998] HCA 1; (1998) 192 C.L.R. 159.

[9] [1995] HCA 66; (1995) 184 C.L.R. 19.

[10] [2001] VSC 172; (2001) 122 A.Crim.R. 403.

[11] [1980] FCA 72; (1980) 31 A.L.R. 257.

[12] (1998) 4 V.R. 636.

[13] (2003) V.S.C. 188.

[14] (1913) A.C. 417 at 477.