DPP v Myles

1 An indictment filed in the County Court charges the respondent, 'Lance Myles', with reckless conduct endangering serious injury[2] (charge 1); intentionally causing serious injury[3] (charge 2); alternatively, recklessly causing serious injury[4] (charge 3); and failing to stop and render assistance after an accident[5] (charge 4). All four charges relate to the respondent's driving of a motor vehicle on 14 October 2017, in the course of which he allegedly ran down Philip Handby, causing him to suffer serious injuries. The respondent's present intention is to contest the charges at trial.

2 At the time of his alleged offending, the respondent was subject to a drug treatment order ('DTO'), which had been imposed by the Drug Court[6] at Dandenong on 17 August 2017, for theft of a motor vehicle and other offences. Throughout November 2017, the respondent was supervised on that DTO by Kelly-Ann Faulkner (née Collins), who was employed as a case manager at the Drug Court by Corrections Victoria (an arm of the Department of Justice).

3 As part of its case in the respondent's pending trial, the prosecution seeks to lead evidence of admissions allegedly made by the respondent to Ms Faulkner on 1 November 2017 ('the admissions'). Pre-trial, the defence challenged the admissibility of the admissions.

4 By a ruling dated 30 September 2021 ('the ruling' or 'the interlocutory decision'), the trial judge excluded evidence of the admissions under s 90 of the Evidence Act 2008 ('the Act').

5 Pursuant to certification under s 295(3) of the Criminal Procedure Act 2009 ('CPA'), granted by the trial judge on 8 October 2021, the Director of Public Prosecutions seeks leave to appeal against the interlocutory decision on a single ground which asserts that the trial judge 'erred in excluding the admissions made by the accused to Ms Faulkner under s 90' of the Act.

6 For the reasons that follow, we would refuse leave to appeal.

7 It is unnecessary to say much about the alleged offending. So far as relevant, the Summary of Prosecution Opening, filed for the purposes of the respondent's trial, describes it as follows:

2 The [respondent] was 22 years old at the time he is alleged to have committed the offences. ...

3 At about 5:40 on the evening of 14 October 2017, the [respondent] was driving a blue Holden Calais sedan (registration AGI 930) in Cranbourne West. That car was registered in the name of the [respondent's] mother ...

4 At the intersection of Breens Road and Calais Circuit, Cranbourne West, the [respondent] performed a number of manoeuvres in the car, including what are colloquially known as 'burnouts' and 'doughnuts'. He revved the car loudly and drove it in a manner that caused it to rotate in a clockwise direction while emitting a large amount of smoke from the tyres and producing loud screeching sounds.

5 After performing the burnouts and doughnuts, the [respondent] drove east along Breens Road at high speed. Nearby, children played on the footpath and in the front yards of houses in the street. A resident of the area was the complainant [Philip Handby]. ...

6 The complainant was aware of some children that were playing nearby. He saw the speed and manner at which the [respondent] was driving which included revving the engine and spinning the tyres so that they squealed and covered the car in smoke.

7 All of a sudden, the complainant saw the car emerge from the smoke the [respondent] had created. He later told the police that the car was, '...drifting on the wrong side of the road speeding toward us at a colossal speed, much faster than the 50km/h speed limit permits. I would estimate about 80km/h'. [Charge 1 - Conduct Endangering Persons]

8 The complainant was so concerned by it that he walked onto the road and indicated to the [respondent] that he should slow down by waving his arms up and down. The [respondent] drove towards the complainant on the incorrect side of the road. He thought he was going to die. The [respondent] stopped his car immediately in front of the complainant. He felt the front of the car touch his legs and push him back slightly.

9 The two men made eye contact and the [respondent] revved the engine. As the complainant started to move away, the [respondent] accelerated and drove the car into and over the complainant. The Crown allege that was a conscious, voluntary and deliberate act of the [respondent]. [Charge 2 - Causing Serious Injury Intentionally and, in the alternative, Charge 3 - Causing Serious Injury Recklessly] After striking and running over the complainant, the [respondent] drove away at a fast rate of speed. [Charge 4 - Failing to Stop and Render Assistance]

...

17 On 1 November 2017 (18 days after the alleged offending), the [respondent] attended an appointment with a case manager, Kelly-Ann Collins. ... During their session, the [respondent] told Collins that he may have some pending legal issues and that the police may be looking for him. ...

18 When Collins asked the [respondent] what had happened and that she might be able to assist or support him, he made a number of admissions to her. ...

...

8 In a statement dated 9 September 2018, Ms Faulkner set out the admissions allegedly made by the respondent. She stated:[7]

I am a case worker for the Dandenong Drug Court, South East Metropolitan Region, with the Victorian Department of Justice.

In my roll [sic] as case manager I was managing [Lance MYLES], 02/11/1994, as a result of matters heard at the Dandenong Drug Court.

On Wednesday the 1st of November, 2017, [MYLES] attended his appointment as per scheduled, and the appointment was held as per normal.

At the end of the appointment, Mr [MYLES] advised me that he may have pending legal issues and the police may be wanting to talk with him. He asked if he should speak to a private lawyer or VLA (Victoria Legal Aid). I advised him that VLA are in the building and he can speak with them.

I asked Mr [MYLES] what it was in regards to as case manager I may be able to help. Mr [MYLES] noted he did not really want to discuss or elaborate. I continued to encourage Mr [MYLES] to share what was going on, so as case manager, I could possibly help or support Mr [MYLES] through this time.

Mr [MYLES] disclosed the following.

He reported that 2 or 3 weeks ago he was involved in a 'hit and run'. He cited [sic] that 'I was speeding around the corner, I slid out, I was doing about 140 kms in a 60 km zone. I was coming up to a childcare/school area and there was a man in the middle of the road waving me down and swearing'.

Mr [MYLES] further noted, 'I slowed down and yelled out what the f**** is your problem, before I knew it he was under the car'.

When Mr [MYLES] was asked to elaborate he noted, 'I was so angry, I put my foot down on the accelerator and hit him'.

Mr [MYLES] further noted that once he realised what he had done he sped off, noting there was a car following him trying to get his registration plates. He further noted that he went to his sisters [sic] house to hide and went back to the scene a short time later and saw the road was blocked off with police and ambulance present.

When Mr [MYLES] was asked if the person was alive or not he stated, 'Yer I think he is in hospital, he may be out now. He is not dead'.

Mr [MYLES] was asked if he was substance effected which he noted he was under the influence of methamphetamine.

Mr [MYLES] stated that he has been following the crime and believed that someone had written down his number plates and handed them in last night and now this is why he believes the police may want to speak to with him. He stated that the car is his however it is registered under his mothers [sic] name and further noted, 'they don't know it was me driving the car, it could have been anyone'.

9 The prosecution seeks to rely on a number of the respondent's admissions to Ms Faulkner, including that he:

• was involved in a 'hit and run' two or three weeks beforehand;

• was driving at 'about 140 kilometres an hour in a 60 kilometre an hour zone';

• approached a childcare or school area, and a man was standing, 'in the middle of the road waving [him] down and swearing';

• slowed down and yelled to the man, 'what the fuck is your problem', and 'before [he] knew it [the man] was under the car';

• 'was so angry, [he] put [his] foot down on the accelerator and hit [the man]';

• noticed a car following him and that someone in it appeared to be noting his registration details;

• returned to the scene a short time later and saw that the road had been blocked and that the police and paramedics were in attendance.

10 On 17 August 2021, Ms Faulkner gave evidence before the trial judge on voir dire.

11 In the course of her evidence, the DTO made by the Drug Court at Dandenong on 17 August 2017 was tendered (Exhibit B). It contained the following 'confidentiality waiver condition':[8]

THE [RESPONDENT] WAIVES ALL RIGHTS OF CONFIDENTIALITY OF COMMUNICATIONS ABOUT HIM BETWEEN ON THE ONE HAND THE DRUG COURT ITS SERVANTS AND AGENTS AND ON THE OTHER HAND ALL TREATMENT PROVIDERS AND ALL GOVERNMENT AGENCIES AUTHORITIES AND DEPARTMENTS.

when Mr [Myles] accepts coming onto the drug treatment order, the magistrate would have read through the conditions of the drug treatment order in detail. One of those conditions of the order is that the defendant waives all rights of confidentiality of communications about him between, on the one hand, the Drug Court, its servants and agents, and, on the other hand, all treatment providers and all government agencies, authorities and departments.

13 We pause to note that, although Ms Faulkner gave evidence that she thought the confidentiality waiver condition to be authorised by 'Drug Court legislation', the true position is that it is not authorised by s 18ZG(1) of the Sentencing Act 1991 - which permits the Drug Court to impose certain 'program conditions' as part of a DTO - or by any other provision of that (or any other) Act or the regulations.

14 Ms Faulkner further gave evidence that she understood that she was required to disclose to police any offending that was disclosed to her by a 'participant':

[PROSECUTOR]: Now, this concept of mandatory reporting that you've referred to, when you had that meeting or session with the accused man on 1 November 2017, what was your understanding about reporting any further offending that was disclosed to you?---So, my understanding as a case manager is any participant was to disclose any offending or alleged offending. That needs to be a call to police and also to directly tell my manager and also tell our Legal Aid lawyer.

And that's not discretionary. It's mandatory, do you say?---Yes, it's a part of our role.

Now, do you know ... what sets out that it's mandatory? Is it in some legislation, is that policy, is it protocol, the Drug Court, or Corrections? Can you assist us at all in terms of where that comes from?---I believe it is in the Corrections Act, the disclosure of information.

Yes, that's a section that I think we talked about ... s 104ZY?---Yes.

All right. Other than that section, ... is there any other piece of legislation or protocol or policy that refers to reporting being mandatory?---I am unsure, as I haven't been able to get any other policies from Corrections at this time.

...

[The respondent] told you the things you set out in your statement. When he told you those things, what view, if any, did you have of the things he told you?---When he had shared that information, I was aware then that I needed to call police, but that he also needed to seek legal advice.

All right. Did you discuss that with him, either of those things? Getting some legal advice and/or having to inform someone else of what he told you?---I told him that I would go get the legal aid lawyer, and he could have a discussion with them.

All right?---However, I cannot recall if I did or did not tell Mr [Myles] that I would have to call the police at that time.

Now, the things that he did tell you, was it your understanding that they came within the parameters of the conditions ** - ** the confidentiality waiver and the reporting that you're required to undertake?---Yes.

That is, it was - - - ?---Because - - -

Yes, I'm sorry?---Sorry.

No, I cut you off, sorry. It's your evidence; go ahead?---Um, yes, because he had provided information around alleged offending, that is something that waives his right and confidentiality, and therefore needing to advise my manager, the Drug Court team and the police.

And is that information, is that something that you mention at every session, that 'if you tell me certain things, then I have an obligation to report them' or does that happen at the beginning, and it's just assumed that it then runs for the duration of the order? Or what's the process?---So ** - ** and he was told at induction, on the first day. We wouldn't normally share that for every single appointment, because we see the participants once or twice every single week. Um, we may tell them later down the track if we believe that there may be some information, or that they need to seek, advice, but that's not something that we would routinely tell them in every appointment.

HIS HONOUR: But just so we can understand it, what you say is that at your induction with him on 17 August [2017], your practice would be to specifically tell him that if he disclosed any criminality, you have mandatory reporting obligations to tell the police. Is that correct?---Yes, that's correct.

...

[PROSECUTOR]: [Your] understanding would have been that from 17 August until 1 November [2017], we [scil, he] would have had weekly appointments?---Yes, that's correct.

Now, after he told you those things ** - ** disclosed the alleged further offending ** - ** did you assist him to go to speak to Legal Aid? I think you refer to it in your evidence?---Yes, I went and got Legal Aid, as they sit in our building, and they spoke with Mr [Myles].

All right. Were you part of any of that?---No, definitely not. No.

No. Now, did you then report to someone else what Mr [Myles] had told you?---Yeah, so I initially told Legal Aid, and then they went and saw Mr [Myles], and then I went and spoke with my direct line manager, and told her what had happened and what was disclosed, and then I was directed to call police.

Directed by whom?---My line manager.

...

... In terms of the waiving of any confidentiality and your obligation to disclose any further offending, is this the case ** - ** that at the time in court, when the drug treatment order is granted by the magistrate, there's the discussion or the words of the magistrate that fall to the accused in court?---Yes. That's correct. And the magistrate will then ask the participants to repeat back what he said, so he knows that they understand.

The drug treatment order is electronically generated and then signed by both the magistrate and the offender?---Correct.

There's then an induction session that takes place, where you further describe and/or elaborate in relation to the disclosure confidentiality issues?---Yes.

15 As part of the induction that Ms Faulkner conducted with the respondent on 18 August 2017, she had him read through and sign a Drug Court Undertaking (Exhibit E). One of the requirements of the undertaking was that the respondent would 'obey all lawful directions given to [him] by any member of the Drug Court Team'; and the document warned him that suspected non-compliance with the DTO might result in an application to cancel it. Ms Faulkner told the respondent during his induction that he needed to be honest with her at all times.

16 In her evidence in committal proceedings on 27 November 2020, Ms Faulkner agreed that Corrections staff exercised a degree of authority over people in the respondent's position:

[COUNSEL]: Having what is now a pretty decent amount of experience with Community Correction Order offenders or clients as well as drug treatment order clients, Corrections have a great amount of power over someone on drug treatment orders, aren't they, due to people (indistinct)?---Yeah.

So there's certainly a level of authority that Corrections or a case manager has over their client on a drug treatment order?---The whole team would, yes.

I'm not saying one particular person but Corrections ** - ** the Corrections staff as a whole have a decent amount of authority over the client?---Yes.

Because another component of the order is to comply with all lawful directions?---Yes.

So when Mr [Myles] is asked by you or one of your colleagues to do something, it is lawful that he has to do it?---Yes.

Or face imprisonment or sanctions or some other thing?---Yes.

...

[O]ne of the repercussions of not complying with lawful directions can potentially be a breach and cancellation? ---Yes.

17 Ms Faulkner confirmed in her committal evidence that, before the respondent made the admissions to her, she had told him, 'It's important that you tell me everything that's going on'. She also said:

[COUNSEL]: I take it you said a few [times]?---I believe once or twice and him saying that he was anxious.

You eventually persuade him to just sit down and tell you what was going on?---Yeah.

Part of that ** - ** you made him feel comfortable. You were able to say, 'I'm your case manager (indistinct) I can help you and support you through whatever it is you're going through'?---Yeah.

18 The respondent did not give evidence on the voir dire. Thus there is no direct evidence as to his state of mind at the time he made the admissions to Ms Faulkner.

19 In seeking exclusion of the admissions made to Ms Faulkner, counsel for the respondent relied on ss 85, 90 and 137 of the Act. He submitted that the respondent's right to silence and privilege against self-incrimination had been abrogated. Whilst Ms Faulkner - who as his case manager had 'power over him' - exercised 'no overt coercion', the impact of the DTO; the obligations of the undertaking; Ms Faulkner's admonition to the respondent to be honest; and the respondent's inexperience, all led to him being inappropriately overborne, and to him making admissions in circumstances in which he should have been cautioned.

20 Ultimately, the judge held that neither s 85 nor s 138 of the Act were 'enlivened'. He also held that, so far as the provisions of s 137 were concerned, the probative value of the evidence was not outweighed by the risk of unfair prejudice.

21 Applying s 90, however, the judge refused to admit evidence of the admissions since, having regard to the circumstances in which they were made, it would be unfair to the respondent to use the evidence. He said:[9]

[23] The consideration of unfairness in this matter comes from the following circumstances:

(a) An order made at the Dandenong Magistrates' Drug Court on 17 August 2017, that incorporated within it conditions purporting to, 'waive all rights of confidentiality', in order to protect officers of the Court or allied professionals administering medical or like assistance under the order. Despite enquiries made on the Court's behalf by the DPP, and indeed enquiries made myself, there does not seem to be any statutory basis for the imposition of such an order or conditions of the order.

(b) Ms Faulkner, as Mr [Myles'] case manager, understood and advised Mr [Myles] as follows:

(i) that Mr [Myles] was required to be scrupulously honest in her dealings with her;

(ii) that she was obliged to report any disclosed crimes to the police, and he was subject to a non-confidentiality clause. Such being confirmed in the manual that she gave him;

(iii) that at Mr [Myles'] first case conference on 18 August 2017, Mr [Myles] stated that he was 'overwhelmed with the information he had been supplied';

(iv) that at that conference, Ms Faulkner gave him the Drug Court undertaking, which he signed, confirming her advice.

(c) At no time apparently:

(i) in the Drug Court, did the Magistrate;

(ii) in the instructions provided by the Corrections Department to the Ms Faulkner;

(iii) in the written documentation provided to Mr [Myles], being the order he signed at the Dandenong Magistrates' Court on 17 August 2017; the undertakings he signed on 18 August 2017;

(iv) or in conversation with Ms Faulkner as his drug case manager;

was Mr [Myles] advised that such orders and undertakings did not remove his right to remain silent or the privilege against self-incrimination.

(d) In ignorance, due to a failure of Corrections to appropriately instruct Ms Faulkner in this regard, when Mr [Myles] stated to Ms Faulkner that he had pending legal issues, that the police may be wanting to talk to him and that he wondered if he should speak to a private lawyer, Ms Faulkner, to use her words 'encouraged Mr [Myles] to share what was going on'.

(e) Clearly, if properly instructed, Ms Faulkner should have terminated the conversation and referred Mr [Myles] to obtain legal advice. If despite that, Mr [Myles] persisted, Ms Faulkner should have been instructed to warn him as to the consequences, immediately she became aware that the admissions did not relate to matters of adherence to conditions under the Drug Treatment Order.

(f) Mr [Myles] then made the disclosures and admissions detailed in Ms Faulkner's statement of 7 September 2018, which the prosecutor seeks to lead in the trial.

...

[25] I want to emphasise, as I told Ms Faulkner when she gave evidence, that I find no personal fault with her, or her actions. But as I said to her in Court, she was in my view, the victim of inadequate employer instruction.

...

[30] In conclusion, based upon the circumstances I have detailed, I consider there is a grave doubt as to whether this admission was voluntary. I further FIND, upon all the circumstances I have detailed, that to admit such admission in the trial against Mr [Myles], would be unfair.

...

[34] My concern is that any disclosures made to case managers while under a Drug Treatment Order need direction, so that persons who are subject to such orders know and are advised when the order is made by the Magistrate, that any comments they make as part of such case management will or will not be used against them, and that persons such as case managers are instructed to advise clients that the rights to silence and against self-incrimination do not apply. In the alternative, clarity should be given if they do apply.

[35] In the circumstances, I rule against the admission into evidence of the admissions made by Mr [Myles] to Ms Faulkner.

22 Before proceeding, it is convenient to make some observations about s 90 of the Act.

23 Section 90 applies to evidence of an admission. The Dictionary to the Act defines an admission to include a previous representation made by an accused in a criminal proceeding that is 'adverse to the person's interest in the outcome of the proceeding'. It has not been contended that any impugned statement made by the respondent to Ms Faulkner is other than an admission.

24 By s 90 - which appears in pt 3.4 of the Act, headed 'Admissions' - a court may refuse to admit evidence of an admission sought to be adduced by the prosecution if, having regard to the circumstances in which it was made, it would be unfair to the accused to use the evidence. The section provides:

In a criminal proceeding, the 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 an accused to use the evidence.

25 While some of the provisions of pt 3.4 apply to both civil and criminal proceedings, others - including ss 85, 86 and 90 - apply only in criminal proceedings.

26 In Em, Gummow and Hayne JJ distinguished s 90 from other provisions:[10]

It should be observed that s 90 is cast in a form which differs from ss 84, 85 and 86. These set out rules whereby in stipulated circumstances evidence of certain admissions is not to be admitted. Section 90 empowers the court in a criminal proceeding to refuse to admit evidence adduced by the prosecution of an admission (not expressly limited to an admission by the defendant) where to use the evidence would be 'unfair to a defendant'.

27 Notably, for the purposes of s 90, the Act leaves 'unfair' undefined. Plainly, however, unfairness must necessarily be a highly fact-specific concept. So much was made clear in Em by Gleeson CJ and Heydon J, who said:[11]

The language in s 90 is so general that it would not be possible in any particular case to mark out the full extent of its meaning. ... In any particular case, the application of s 90 is likely to be highly fact-specific. Certainly it is on the facts of this particular case that the result must turn.

28 As the terms of s 90 make clear, the focus must be upon the circumstances in which the admissions were made, and the way in which those circumstances render 'use' of the evidence at trial to be unfair. Thus, Gummow and Hayne JJ observed:[12]

As pointed out at the commencement of these reasons, 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'.

29 As was also made clear by Gummow and Hayne JJ, s 90 is a 'safety net' provision, only to be invoked after other, more specific, provisions (such as ss 84, 85, 86, 137 and 138) have been considered:[13]

When it is 'unfair' to use evidence of an out-of-court admission at the trial of an accused person cannot be described exhaustively. 'Unfairness', whether for the purposes of the common law discretion or for the purposes of s 90, may arise in different ways. But many cases in which the use of evidence of an out-of-court admission would be judged, in the exercise of the common law discretion, to be unfair to an accused are dealt with expressly by particular provisions of the Act other than s 90. Thus although the discretion given by s 90 is generally similar to the common law discretion considered in Lee,[[14]] it is a discretion that will fall to be considered only after applying the other, more specific, provisions of the Act referred to at the start of these reasons. The questions with which those other sections deal (most notably questions of the reliability of what was said to police or other persons in authority, and what consequences follow from illegal or improper conduct by investigating authorities) are not to be dealt with under s 90. The consequence is that the discretion given by s 90 will be engaged only as a final or 'safety net' provision.

30 The onus of demonstrating that it would be unfair to use the evidence of an admission lies with the accused.[15]

31 Counsel for the applicant submitted that the circumstances in which the respondent made the impugned admissions were not unfair. The respondent's admissions were volunteered, unprompted and unsolicited, and were made in circumstances in which the respondent was not obliged to disclose his offending to Ms Faulkner, who was neither an investigating official nor an interrogator. Ms Faulkner, counsel submitted, made no threat, promise or inducement of a kind that might have caused the respondent to make the impugned admissions, and the admissions were made free of any inducement, trickery or obligation. Finally, counsel submitted that s 18ZS of the Sentencing Act 1991 emphasises that the legislature intended that only certain kinds of admissions by a person subject to a DTO were to be protected, and then only in relation to certain kinds of offending. The excluded admissions, and the relevant offending, were not of that kind.

32 The respondent's counsel submitted that the evidence demonstrated that the respondent was aware that he might need a lawyer. Notwithstanding that this was so - and despite his reluctance - Ms Faulkner encouraged the respondent to make disclosures. This occurred against the backdrop whereby it had been made clear to the respondent that he had a duty of honesty and disclosure, and in circumstances where Ms Faulkner exercised significant power over the respondent. The pressure to make admissions, counsel submitted, was strengthened by Ms Faulkner encouraging the respondent to make the admissions by telling him that she would help and support him through the process. The relationship between participant and case worker compelled the respondent to make the admissions. Ms Faulkner, counsel pointed out, was not aware that certain admissions were protected by s 18ZS of the Sentencing Act 1991.

33 Given the discretionary nature of a determination under s 90, this Court will not interfere with the trial judge's decision unless the applicant can establish error of the kind identified in House.[16] Counsel for the applicant acknowledged this constraint. Thus, in order to succeed in this Court, the applicant must show that the trial judge acted upon a wrong principle, allowed an extraneous or irrelevant matter to guide him, mistook the facts or failed to take into account a material consideration, or that his decision is unreasonable or plainly unjust.

34 In our view, the applicant has failed to demonstrate error of the House kind. Indeed, we consider that the judge's refusal to admit the evidence of the respondent's admissions to Ms Faulkner was well-open to him.

35 The right to silence and the privilege against self-incrimination are entrenched in the criminal law. Thus, investigating officials in defined circumstances are required to caution a person that he or she does not have to say or do anything but that anything the person does say or do may be given in evidence.[17] Any statement made by a person during questioning is taken to have been obtained improperly if an investigating official did not caution the person before starting the questioning.[18] The administration of a caution alerts a person being questioned that he or she does not have to answer questions that may incriminate him or her.

36 Clearly, Ms Faulkner was not an investigating official.[19] Hence, when she questioned the respondent - as she agreed she had - she was under no common law or statutory obligation to caution him that he did not have to answer her questions. It was open to the trial judge to conclude, however, that in the particular circumstances of this case the respondent would have felt effectively compelled to do so. Thus, the evidence reveals the following:

• First, shortly prior to the admissions being made, the respondent, having told Ms Faulkner that he had 'pending legal issues', made it plain that 'he did not really want to discuss [them] or elaborate'. Despite the respondent's reluctance, however, Ms Faulkner 'continued to encourage [him] to share what was going on', so that she could help or support him. It was only after Ms Faulkner encouraged the respondent to speak to her (despite his reluctance) that the respondent made the admissions.

• Secondly, the respondent was confronted with a court order containing a condition - one having no legislative imprimatur - that he waived all rights of confidentiality of communications about him between the Drug Court and its servants and agents. He was also provided with a large amount of written material at his first meeting with Ms Faulkner. Ms Faulkner's evidence was that the respondent said that he found the volume of material overwhelming. It was open to the trial judge to infer that the respondent would have believed that he was required to reveal confidential information to Ms Faulkner.

• Thirdly, at the outset of their relationship, Ms Faulkner had advised the respondent that he was required to be honest with her, failing which, sanctions would result.

• Finally, the respondent had been informed that he was obliged to follow all lawful directions of Ms Faulkner and the Drug Court. Allied to that, as Ms Faulkner agreed in her evidence, she exercised a degree of authority over the respondent. Against that background, it was open to the trial judge to conclude that, when Ms Faulkner 'encouraged' the respondent to answer her questions, he would have felt that he was required to do so.

37 Thus it was open to the trial judge to conclude that, although it may not have been Ms Faulkner's intention to compel the respondent to disclose his offending to her, the circumstances outlined immediately above were such that the respondent would have felt coerced into surrendering his right to silence and relinquishing his privilege against self-incrimination. Had Ms Faulkner's actions been those of an investigating official, the admissions would not have been admitted into evidence at the respondent's trial. In these circumstances, it was clearly open to the judge to conclude that it would be unfair to permit the evidence of the admissions to be used against the respondent.

38 In light of the foregoing, leave to appeal against the interlocutory decision must be refused.

[1] To avoid the possibility of prejudice in the respondent's trial, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.

[2] Crimes Act 1958, s 23.

[3] Crimes Act 1958, s 16.

[4] Crimes Act 1958, s 17.

[5] Road Safety Act 1986, s 61(3).

[6] Section 3(1) of the Sentencing Act 1991 contains the following definition:

Drug Court means the Drug Court Division of either -

[8] The condition was in upper case in the DTO.

[10] Em v The Queen [2007] HCA 46; (2007) 232 CLR 67, 101 [94] ('Em').

[14] [R v Lee [1950] HCA 25; (1950) 82 CLR 133.]

[15] Em, 91 [63] (Gleeson CJ and Heydon J).

[16] House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ) ('House'). See FMJ v The Queen [2011] VSCA 308, [53] (Weinberg JA, Hansen JA and Beach AJA agreeing).

[17] See, eg, Crimes Act 1958, s 464A.

[19] In submissions to the trial judge, counsel for the respondent sought to invoke s 85(1)(b) of the Act, arguing that the respondent made the admissions as a result of an 'act' by Ms Faulkner, 'who the [respondent] knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the [respondent] should be brought or should be continued'.