(iii) When the conversation turned to getting lives back to normal and the detectives wanting "to try and clear up a few things here", the appellant was again told that he did not have to talk to the detectives if he did not want to; the appellant submitted that the impression was given that the police were not investigating the appellant's involvement, but were just seeking to eliminate the involvement of others, and that again that the detectives did not say that anything the appellant said may later be given in evidence in court.
62 The detectives told the appellant that they were not trying to con or trick him. The appellant submitted that the effect of what they said was to trick him, by confirming his pre-existing belief that evidence of what he said could not be used against him in criminal proceedings and giving him a false sense of security. He submitted that the detectives knew that he would not speak to them if he had known that the conversation was being recorded, but that he also would not have spoken to them if he had known that what he said (albeit unrecorded) might be used in evidence against him, and that it was inescapable that, by what they said and did not say, the detectives confirmed the appellant's belief that anything he said could not be used in evidence against him. And he submitted that the judge had erred in not taking this into account in holding in his [132] that nothing said or done in the conversation up to p 25 of the transcript changed the situation that the appellant had formed the belief that evidence of the conversation could not be used against him independently of anything said or done by the police.
63 James J did not advert to whether or not there had been confirmation of the appellant's independently formed belief, as a matter bearing upon unfairness. Counsel appearing for the appellant at the trial made no submission to the effect of the appellant's submissions as developed in this Court, although there was passing reference to unfairness through the police confirming a belief held by the appellant.
64 It is not necessary to enter upon any significance to discretionary error or miscarriage of justice of the limited manner in which the submissions were made to his Honour. In my opinion, the basis for the submission in this Court is unsound.
65 Accepting, as the judge found in his [130], that at the commencement of the conversation the appellant believed that an unrecorded conversation with the police could not be used against him in criminal proceedings, I do not think it correct that what the detectives said and did not say tended to confirm that belief. The detectives did not correct the erroneous belief, on their evidence in the voir dire enquiry because they had a like belief, but failing to correct is very different from confirming. The fact that the detectives did not tell the appellant that anything he said may later be given in evidence in court was not confirmatory. The appellant already held the belief, it did not need confirmation, and the appellant gave no evidence in the voir dire enquiry that there was some kind of confirmation; confirmation was not in question. At least until the words at p 25 of the transcript of the conversation there was no holding out that, if the appellant did speak to the detectives, what he said could not be used against him: at that point the judge considered that what Detective Abdy said strengthened the appellant's belief and encouraged him to speak to the police, see his [140]. I do not think that occurred at any earlier time.
66 The appellant finally submitted that James J had erred in the exercise of his discretion because, in the circumstances of the conversation of 15 May 2002, the only reasonable conclusion was that it would be unfair to the appellant to use the evidence. This submission involved failure to correct the appellant's erroneous belief, but went beyond it because in fact the conversation was recorded. The appellant submitted that he would not have made any admissions if he had known that what he said could be used against him, which in his belief was the same as knowing that that conversation was being recorded; that (as James J found in his [127]) the detectives knew that the appellant would not speak to them if he knew the conversation was being recorded; and that although the detectives did not intentionally act improperly, by covertly recording the conversation they tricked him into speaking to them when what he said could in fact be used against him. It was said that the effect, albeit not the intention, was to impugn the appellant's freedom to choose whether to speak to the police, that the effect also was that any admissions made may well have been unreliable because the appellant may have been deflecting attention from his friends and onto himself in the belief that what he said could not be used against him, and that in all the circumstances there was unfairness in using the evidence.
67 It is appropriate first to go to unfairness through unreliability, although fairness or unfairness must be evaluated as a whole. For Ground 2 later considered there was evidence from the appellant to the effect that he set out to deflect attention from his friends and onto himself. There was no such evidence in the voir dire enquiry. The appellant submitted that indications of that position could be seen, particularly in the appellant's responses to questions whether Arno or Liane was involved in the murder and who drove to Cecil Hills.
68 Reliability has been regarded as a material matter in relation to fairness or unfairness, see Van der Meer v The Queen (1988) 62 ALJR 656 at 666, 669; Duke v The Queen (1989) 180 CLR 508 at 513; The Queen v Swaffield at [18]-[20], [26]-[28], [54], [74]-[78]. It is not necessary to go into whether s 85 of the Act, separately providing for exclusion of an admission unless the circumstances in which it was made "were such as to make it unlikely that the truth of the admission was adversely affected", has diminished its relevance to the exercise of the s 90 discretion. Ordinarily persons do not make admissions against interest unless they are true; if there is some other reason for an admission, it may be unfair to use it as true evidence if the other reason suggests unreliability. But also, reliability is a matter for the jury; the approach recognised in The Queen v Swaffield at [91] of looking to "the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned" particularly permits reliability to be left to the jury.
69 There is some unreality in the proposition that belief that an admission about commission of a murder can not be used in criminal proceedings may prompt an untrue admission to the police. Even if the admission could not be used in criminal proceedings, it would be likely to excite police interest and provoke other police endeavours to prove, apart from the admission, commission of the murder. The admission is still against interest, with what that conveys for truth.
70 In the present case, the conversation as a whole to p 25 of the transcript does not convey that what the appellant said to the detectives was affected by his belief that evidence of the conversation could not be used against him in criminal proceedings or by deflection of attention from his friends. He was not cooperative and was fencing with the detectives, and in my understanding of the conversation was well conscious that what he said to the detectives could be adverse to his interests even if it could not be used in evidence. Reliability through being against interest is not confined to use as an admission in criminal proceedings. As a material matter in relation to fairness or unfairness in the exercise of the s 90 discretion, in my opinion the appellant gains little support.
71 This appears to have been the judge's conclusion, and indeed to have been accepted by counsel for the appellant at the trial. For his ruling on s 85 of the Act the judge said -
"[90] I am satisfied that the circumstances in which the admissions were made were such as to make it unlikely that the truth of the admissions was adversely affected.
[91] On 15 May, as was conceded by counsel for the accused, the accused was not subject to any condition or characteristic or disability such as was likely to adversely affect the truth of the admissions. I do not consider that the nature or manner of the questioning or the contents of any of the questions asked was likely to adversely affect the truth of admissions made in response to the questioning. The questioning was not hostile or overbearing, or, in my opinion, unduly persistent or confusing or too leading. That the accused often claimed not to know or not to remember, and sometimes gave partial, indirect or equivocal answers or evaded answering questions, does not militate against a conclusion that the circumstances in which such admissions as were made were made, were such as to make it unlikely that the truth of those admissions was adversely affected."
72 The focus was not on unreliability because the appellant may have been deflecting attention from his friends and onto himself in the belief that what he said could not be used against him, but that can not have escaped such consideration as it warranted.
73 Going to trickery by covert recording, the covert recording of a conversation does not of itself make it unfair to use the evidence. Nor is there unfairness simply because, had the accused known the conversation was being recorded, the accused would have declined to participate; that will often be so when duly authorised listening devices are used. Once this is recognised, it can be seen that in considering unfairness because the accused's freedom to choose to speak to the police has been impugned, the freedom to choose may be impugned without unfairness in use of the evidence. It is not enough to say that the effect of covert recording was to impugn the freedom to choose.
74 So in The Queen v Swaffield at [91], cited above, Toohey, Gaudron and Gummow JJ spoke of a discretion when the freedom had been impugned, and of looking at all the circumstances which might point to unfairness. Impugning and unfairness were not equated. Kirby J made the same point at [155]; having taken from decisions of the Supreme Court of Canada the "concept of elicitation", that the police "took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks", his Honour said -
"[155] I agree in the approach expressed by the Supreme Court of Canada. I do not consider that it is derived from the Charter so as to make it inapplicable to analogous circumstances in Australia. The test propounded is consistent with the general approach which our law has taken towards deception by law enforcement officials. Subterfuge, ruses and tricks may be lawfully employed by police, acting in the public interest. There is nothing improper in these tactics where they are lawfully deployed in the endeavour to investigate crime so as to bring the guilty to justice. Nor is there anything wrong in the use of technology, such as telephonic interception and listening devices although this will commonly require statutory authority. Such facilities must be employed by any modern police service. The critical question is not whether the accused has been tricked and secretly recorded. It is not even whether the trick has resulted in self-incrimination, electronically preserved to do great damage to the accused at the trial. It is whether the trick may be thought to involve such unfairness to the accused or otherwise to be so contrary to public policy that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value. In the case of covertly obtained confessions, the line of forbidden conduct will be crossed if the confession may be said to have been elicited by police (or by a person acting as an agent of the police) in unfair derogation of the suspect's right to exercise a free choice to speak or to be silent." (emphasis added)
75 The appellant's choice to speak or be silent was affected, because he would not have spoken to the detectives if he had known the conversation was being recorded. But that is so in almost any instance of covert recording, and he was made well aware that he did not have to speak to them at all. It must be asked why he did speak to them and whether the circumstances pointed to unfairness if the evidence was used; I respectfully agree with the discussion of Howie J in the interlocutory appeal.
76 The appellant spoke to the detectives in the belief that, if the conversation was not recorded, evidence of the conversation could not be used against him. Even if, as the appellant submitted should be inferred, the detectives were aware of that belief, I do not think there was thereby unfairness. Where the police are not responsible for an erroneous understanding which causes the accused to speak, more will be needed to make it unfair to use against the accused what the accused says. Hence the correct inquiry into why the appellant had his belief, the answer being that the police were not responsible for it.
77 The appellant referred to The Queen v Noakes (1986) 42 SASR 489, in which the accused asked the police if he could say something off the record, the police agreed, and it was thought that the accused meant and the police agreed that what was to follow "would be off the record in the sense that it would not be used in evidence" (at 492). This was held to be the offer of an improper inducement to make a further statement. The contrast with the present case is marked; there was a positive holding-out that what the accused said would not be used against him.
78 I am not persuaded that the judge's exercise of discretion was unreasonable or plainly unjust within the House v The King principles, or that the evidence of the conversation to p 25 of the transcript was inadmissible for unfairness pursuant to s 90.