LAUCHLAN -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 227 (7 November 2008)

LAUCHLAN -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 227 (7 November 2008) - WASCA 2008 case summary — Zoe

[29]

The basic features of the technique are that an undercover police operative will make contact with the target (in this case Darren Lauchlan), strike up an acquaintance and build rapport. Once this relationship has been established there follows a series of other meetings with the undercover police operative which take place over a duration of about nine weeks, in this case from 20 October 2003 to 19 December 2003. During this period the target is led to believe that the police undercover operative, and other police undercover operators who are introduced at various stages along the way, belong to an organised criminal gang controlled by a "crime boss" which runs widespread illegal activities ranging from protection rackets, to prostitution operations, illegal drug importation and supply, gun running, jewel robbery and other serious criminal activities.

This is accomplished by one or more of the undercover police operatives acting out prearranged scenarios, which are carefully designed to give the appearance of preparations for, completion of, or assistance in, the collection of moneys from protection rackets and prostitutes, the handling of firearms, including automatic weapons and submachine guns for delivery to outlaw motorcycle gangs, the reconnaissance of suitable landing grounds for an aircraft involved in drug importation, the collection of 'diamonds' from a jewel robbery, the preparation of parcels of drugs for distribution into a supply chain, and the collection of moneys from another "gang" member who had supposedly double-crossed the gang and is being forced to repay money owed. Despite the appearances and the carefully and deliberately induced belief that the actions portrayed in the various scenarios were either themselves criminal activities or part of the preparations for, or sequels to, serious criminal activities, no offences of any kind are actually committed.

All the individuals involved, including the stall owner paying the 'protection money', the prostitute paying the 'take' to the organisation, the jeweller who was in the process of being 'robbed', the motorcycle gang members who were collecting the firearms and the former gang member who was being 'pressured' to repay moneys which she had wrongly taken from the gang, were all undercover police operatives carefully carrying out fictional roles specifically designed for them. Throughout this process, as the 'target' was being enticed into ever closer co-operation with the initial operative, he was being encouraged to believe that he may be accepted as a member of the gang and so be led into lucrative criminal activities. Indeed, by expressing his willingness to become involved in the play-acting activities of assisting in the jewel robbery, the drug importation and distribution and other matters, the 'target' was induced to believe that he had already 'earned' a substantial slice of the profits and that the 'take' due to him by mid December 2003 was about $11,000 or more and would be paid to him.

As these scenarios were enacted and progressed the 'target' was repeatedly told that the key to success for the criminal gang was 'honesty, loyalty and trust' between its members and that all the gang members were carefully checked and evaluated by the 'crime boss' who had access through corrupt police officers and other corrupt officials, to police information. The 'crime boss' had the capacity to make any past problems 'go away' if they posed any threat to the gang or individual members. However, to be initiated into the gang and accepted as a member, a candidate had to be able to satisfy the 'crime boss' that there was nothing in his past which would, or might, attract undue police attention to him and thus imperil any of the operations of the gang. It was for this reason that detailed 'checking' was necessary via access to the 'corrupt officials' who were on its payroll.

All this was explained repeatedly to Darren Lauchlan by the prime undercover operator who had initially enlisted his involvement in the supposed illegal activities. It was reinforced by statements from the 'crime boss', a man named 'Gary', at an initial meeting with the target and it all came to a head at the ultimate interview between the 'target' Darren Lachlan and the 'crime boss' 'Gary' at a meeting in the Crown Casino Hotel in Melbourne on 18 December 2003. [11] - [15]

[47]

DARREN 'CAUSE WHEN YOU'RE IN THE CAR, YOU HAVEN'T GOT MUCH LEVERAGE YOU KNOW, YOU CAN'T PULL IT RIGHT BACK AND REALLY GET INTO HIM YOU NEED SOMETHING A BIT HEAVY SO YOU CAN FUCKING KNOCK THEM OUT HARD, ANYWAY, I HIT THE PRICK ABOUT THREE TIMES OR SOMETHING AND HE FUCKING DIDN'T, DIDN'T, IT CUT HIS HEAD AND THAT BUT IT DIDN'T FUCKING PHASE HIM AND HE FUCKING GOT OUT OF THE CAR AND BOLTED

GARY YOU'RE JOKING

DARREN YEAH, OHH. I'VE NEVER SAID THIS TO ANYONE, YOU'RE THE ONLY ONE I'VE TOLD, ANYWAY, SEE,

...

DARREN YEP. YEAH AND ANYHOW, HE'S UM, HE'S GOT OUT OF THE CAR AND BOLTED, NOW THERES NOT FAR,

...

DARREN YEAH, HE TRIED TO BOLT. SO I FUCKIN' GOT OUT, RAN AROUND THE OTHER SIDE OF THE CAR, STARTED IT UP. FUCKIN' TOOK OFF AND HIT HIM. AND HE WENT OVER THE ROOF OF THE CAR.

GARY OH, RIGHT, YEAH, YEP, YEP, YEP.

DARREN LANDED ON THE ROAD. AND THE FUCKIN' BIG PRICK HE GOT BACK UP AGAIN.

GARY AFTER THAT?

DARREN YEAH.

GARY YOU'RE KIDDIN' ME.

DARREN NO, HE FUCKIN' GOT BACK UP AGAIN. I'D BELTED THE SHIT OUT OF HIS HEAD, CRACKED HIS SKULL OPEN. AND I'D RUN HIM FUCKIN' OVER. HE WENT OVER THE ROOF. AND HE GOT BACK UP AND HE'S TRYIN' TO WAVE CARS DOWN AND THAT.

GARY YOU'RE KIDDING ME

DARREN SO FUCK, I PULLED OVER THE SIDE AND I BACK BACK UP.

GARY ARE THERE MANY,

DARREN I BACK BACKED UP AND I WOUND THE WINDOW DOWN AND I SAYS, HEY, STEVE, YOU KNOW, FUCKIN' OKAY I'LL TAKE YOU FUCKIN' HOME. DON'T WORRY ABOUT IT, YOU KNOW. I GOT THE DRUGS, WE'LL LEAVE IT AT THAT. AND THE DUMB PRICK'S JUST FUCKIN' STOOD THERE AND STOPPED WAVIN' CARS DOWN. AND I'VE BACKED UP AND I'VE DROVE OVER THE OTHER SIDE OF THE ROAD WHERE HE IS. AND HE'S STANDIN' NEAR THE SIGN, AND HE'S COME UP NEAR THE FRONT OF THE CAR. AND I'VE FUCKIN' TRAMPED IT AGAIN, BRRRRR, AND HE WENT UNDER THE CAR THIS TIME.

GARY OH, SO YOU GO OVER HIM.

DARREN SO I WENT OVER HIM. AND THEN I KEPT GOIN'. AND THEN I WENT AROUND-

...

DARREN NO THERE'S GOING TO BE NOTHING ON MY CAR, NO. NAH, IT WAS HIS CAR I DONE HIM IN. RAN HIM OVER IN, RIGHT. AND THEN I TOOK OFF DOWN FOREST ROAD TO NICHOLSON ROAD LIGHTS. TURNED LEFT. GONE UP THERE, UP SWAMP ROAD; BECAUSE I KNOW THE AREA BECAUSE I OWNED A HOUSE THERE.

...

DARREN YEAH. SO I WENT DOWN THIS TRACK AND I TOOK THE CAR THERE, AND I BURNT THE WHOLE LOT.

GARY HIS CAR?

DARREN YEAH, HIS CAR. EVERYTHING INCINERATED,

[118]

The police had failed - and their failure was not said to be culpable - to collect sufficient evidence against Clarke to charge him. The crime being investigated was very serious[see, in relation to the seriousness of the crime, Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1 at 17 per Murphy J]. It had remained unsolved for 20 years. The scenario technique was one which had been in use for a long time in Canada, and had been approved by the Canadian courts. It was not embarked on as an unthinking frolic by junior officers. It had been deliberately selected by the superiors of those involved in the light of Canadian experience. No alternative was available if the investigation was to continue. It was reasonable for the police to seek to employ this technique, new in Australia, in carrying out their important duty to investigate an old crime. The technique was employed in a discriminating way, with considerable care being taken to avoid illegality. No doubt psychological pressure was built up, but conventional police interrogation of the most proper kind naturally involves pressure. Counsel submitted that the process was 'designed to circumvent the [appellant's] right to silence'. Clarke was in fact an experienced criminal who understood that he did not have to answer anyone's questions. He had not claimed any right to silence when interviewed by non-undercover officers soon after the murder. He actively cooperated in the questioning by the undercover officers. The questioning took place in the course of a relationship which he entered freely, and did not exploit some pre-existing or collateral relationship. The interrogation elements in the conversations were patent, and consistent with the roles which he believed the undercover officers were occupying. He had not been charged, and there was no proper basis to charge him. There was no illegality and no breach of Police Standing Orders. Part III Div 1 Subdiv 30A of the Crimes Act did not apply. The failure of other investigative methods which made it necessary to conduct the undercover operation also made it necessary for a process of active 'elicitation' to take place. The admissions eventually obtained formed a significant part of the prosecution case. The operatives stressed the need to tell the truth. The undercover officers did not prey upon any special characteristics of Clarke related to his gender, race, age, education or health. The means of elicitation were not so disproportionate to the problem confronting the police as to be inherently unfair or contrary to public policy.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (157 paragraphs)

LAUCHLAN -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 227 (7 November 2008)

Transcript of Admissions made to Gary on 18 December 2003

Transcript of admissions made by appellant at St Kilda Road apartment on 18 December 2003

Legislation Cited (1)

Cases Cited (5)