R v Almirol

Was the interception lawful? 30 The power to authorise the interception of a telephone call in 2003 was provided by s45 of the Telecommunications (Interception) Act 1979 (since repealed). That section was then in these terms: "45. Where an agency applies to an eligible Judge or nominated AAT member for a warrant in respect of a telecommunications service and the Judge or nominated AAT member is satisfied, on the basis of the information given to the Judge or nominated AAT member under this Part in connection with the application, that: (a) Division 3 has been complied with in relation to the application; (b) in the case of a telephone application -- because of urgent circumstances, it was necessary to make the application by telephone; (c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service: (d) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in connection with the investigation by the agency of a class 1 offence, or class 1 offences, in which the person is involved; and (e) having regard to: (i) the extent to which methods of investigating the offence or offences that do not involve so intercepting communications have been used by, or are available to, the agency; (ii) how much of the information referred to in paragraph (d) would be likely to be obtained by such methods; and (iv) how much the use of such methods would be likely to prejudice the investigation by the agency of the offence or offences, whether because of a delay in obtaining some or all of that information or for any other reason; some or all of that information cannot appropriately be obtained by such methods; the Judge or nominated AAT members may, in his or her discretion, issue a warrant authorising interceptions of communications made to or from the service." 31 Section 5 of the Act included the following definitions which are relevant: " telecommunications service means a service for carrying communications by means of guided or unguided electromagnetic energy or both, being a service the use of which enables communications to be carried over a telecommunications system operated by a carrier but not being a service for carrying communications solely by means of radio communication. telecommunications system means: (a) a telecommunications network that is within Australia; or (b) a telecommunications network that is partly within Australia, but only to the extent that the network is within Australia; and includes equipment, a line or other facility that is connected to such a network and is within Australia." 32 Counsel for Mr Almirol drew attention to the words in s45(c). The AAT member had to be satisfied, upon the basis of the material provided by Detective Senior Constable Murphy, that there were reasonable grounds for suspecting that a particular person, in this case Mr Almirol "is using or likely to use the service", that is, (02) 9643.8850, the Sydney landline to 1 Maunder Street, Regents Park. 33 Plainly there was no jurisdiction to obtain a warrant to intercept Mr Almirol's mobile telephone in the Philippines. The police therefore had directed their application to the Maunder Street telephone number. What, then, was the basis upon which it could be suggested that Mr Almirol was a person "using or likely to use" the telecommunication service? The word "use" is not defined. Counsel for Mr Almirol suggested it should be given its ordinary meaning (cf Barbaro v DPP (1999) 49 NSWLR 68, per O'Keefe J at 74). It was argued that before a person could be said to be "using or likely to use" the service something "proactive" on the part of Mr Almirol was required. That is, the police must demonstrate, according to counsel for Mr Almirol, that he can be expected to use that service, either by operating the handset at 1 Maunder Street, or dialling that number from the Philippines. 34 Here, according to counsel, Mr Almirol, being in the Philippines, would obviously not use the handset at 1 Maunder Street. Nor, it was argued, could it reasonably be inferred that he would dial that number from the Philippines. When he had lived at the house his landlord, Mr Rodney Davis, had insisted that he not use the landline. He had his own mobile phone which he used. After Mr and Mrs Davis left the house on 15 December for the Philippines, Mr Almirol had used the landline for a short interval between 15 December and 19 December when he left the country. Since returning to the Philippines, the only evidence of any communication between Mr Almirol and those within the household at 1 Maunder Street was in the statement of Mrs Davis of 22 May 2003, paragraph 13. In short, there were text messages between the accused and Mrs Davis, mobile to mobile, and one occasion (on 13 May 2003) where Mrs Davis had telephoned Mr Almirol by means of the landline. That material, it was submitted, provided no basis upon which the AAT member could be satisfied that there were reasonable grounds for believing that Mr Almirol was "a person using or likely to use" the service in respect of which the warrant was sought, namely (02) 9643.8850. 35 In support of this argument, counsel drew attention to an amendment to the Telecommunications (Interception) Act. The amendment followed a review by Mr Anthony S Blunn in August 2005. Mr Blunn's report included a section dealing with what were termed "B-Party Interceptions". In respect of that topic, Mr Blunn said this in his report: (Ex 5) "12.1 An area of concern raised by law enforcement agencies is the issue of so called 'B-Party' intercepts. 12.2 The issue arises where there is evidence that a person, other than a person suspected of involvement in the prescribed crime, the B-Party, is using a telecommunications service for communications which are believed to be relevant to the investigation. The B-Party may simply be a conduit for a relevant communication and may not even be aware of the use being made of them. 12.3 I am advised that presently the Interception Act is generally interpreted by the Agencies as not authorising the use of B-Party intercepts." 36 Mr Blunn's conclusion was as follows: (Ex 5) "12.10 Accordingly, I recommend that the Interception Act be amended to make it clear that B-Party services may be intercepted in limited and controlled circumstances." 37 The Attorney General, in the Second Reading Speech, adopted Mr Blunn's report, including his suggestion concerning the interception of calls with "an associate of the person of interest". Section 45 was repealed and replaced by s46. Section 46 broadened the former s45(d) by including s46(1)(d)(ii). The new s46(1)(d) was in these terms: "s46(1)(d) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in connection with the investigation by the agency of a serious offence, or serious offences, in which: (i) the particular person is involved; or (ii) another person is involved with whom the particular person is likely to communicate using the service; … " 38 The Telecommunications (Interception) Act is not beneficial legislation which ought to be given a liberal interpretation (NSW Crime Commission v Vuletic [2005] NSWSC 614, per Johnson J at para [45]). Approaching the issue of construction with that in mind, I find no assistance from Mr Blunn's report, or the amending legislation in the construction of s45(c). Mr Almirol was not an associate of a person of interest. He was the person of interest. What was contemplated was not a B-Party interception. It was the interception of a telephone conversation with the suspect. It is clear from the section, and especially s45(d), that useful information may be obtained through interception of a communication "to or from" the service. Here, the AAT member could be satisfied that Mr Almirol was a person "likely to use" the Maunder Street landline because the police, as disclosed in the affidavit of Mr Murphy, intended that Mrs Davis should telephone him in the Philippines. It is not necessary, in my view, that Mr Almirol should initiate the communication before it could be said that he was a person "likely to use the service", or that part of the service which is physically within Australia. 39 Here, the Crown, in the alternative, argued that it may also be reasonably inferred that Mr Almirol was likely to use the Maunder Street landline by himself telephoning that number from the Philippines. The inference, it was suggested, arose from a combination of facts. Mr Almirol knew the telephone number of 1 Maunder Street. Rodney and Cora Davis were amongst his best friends in Australia, apart from Mr Trocio, who had since betrayed him. He knew the police were contemplating extradition. It may be assumed that he was keenly interested in the progress of those proceedings. Mr and Mrs Davis were likely to be witnesses in the extradition proceedings, a fact that he would also have appreciated. It was therefore likely that he would telephone them at some point to obtain information. 40 The extradition proceedings would obviously take some time. The intrusion into the privacy of Mr and Mrs Davis, in intercepting their landline, would be substantial. However, in view of the conclusion I have reached as to the construction of s45(c) above, it is unnecessary to consider whether, upon the alternative basis, it would have been open to the AAT member, upon the information placed before her, to be satisfied in respect of the issues raised by s45(c). 41 Two other matters were raised in the context of the warrant, although they were also relevant to the discretion under s90(b) of the Evidence Act. The first was that Detective Murphy's affidavit in support of the interception warrant did not advert to the fact that a first instance warrant had been sought and obtained by the police on 8 May 2003. In respect of that issue, Detective Murphy said this: (T50) "Q. Why did you not disclose to the AAT member that you had sought and obtained and, indeed as at 23 May were in possession of, a first instance warrant to arrest the accused on the count of murder? A. The best way I can answer that is that it was an omission on my part. It was not intentional on my part, but it was a mere omission on my part." 42 He later added: (T52) "A. I agree that is an important factor, but in relation to the facts of the case, it doesn't change the facts of the case." 43 I accept Detective Murphy's evidence. There was no impropriety. The issue of the warrant was a relevant historical fact which should have been included in the application placed before the AAT member. However, its omission, in my view, does not vitiate the warrant or the discretion which was exercised (cf Flanagan, Howard and Grollo v Commissioner of the Australian Federal Police (1996) 134 ALR 495 at 553/7). 44 The second aspect related to the following paragraph in Detective Murphy's affidavit: (Ex 3) "33. Where possible traditional methods of investigation including examination of crime scenes, scientific examination, interviewing suspects and witnesses, use of intelligence and analysis of call charge records have been used and will continue to be used where appropriate. However, it is believed that the use of such other methods of investigations is unlikely to produce evidence of the same nature and quality as that obtained by means of interception. I believe that without the use of interception this investigation will be prejudiced." 45 Detective Murphy, in cross examination, acknowledged that in order to obtain a first instance warrant on 8 May 2003, the police had to have formed the belief that Mr Almirol was guilty of the offence. Having obtained the warrant, the police were in a position to seek his extradition. Indeed, he acknowledged their case for extradition had strengthened since 8 May 2003 by reason of the additional material provided by Mrs Cora Davis. 46 However, paragraph 33 of the application was true. Traditional methods were unlikely to produce evidence of "the same nature and quality" as the interception of the proposed conversation between Mrs Davis and Mr Almirol. This is not a matter, in my view, which affects the validity of the warrant or which discloses any impropriety.

Was there an irregularity? 47 The second argument attacking the warrant related solely to the telephone conversations intercepted on 24 May 2003. The Crown brief included the statement of Mr Ruben Amores, who transcribed the audio tapes in June 2003. The tapes, according to Mr Amores' statement, referred to Warrant No. CO2134 issued on 16 May 2003. The warrant which had been issued on 24 May 2003 in respect of Mr Almirol was Warrant No. CO2137. The warrant identified by Mr Amores, therefore, was a different warrant, issued on a different day. It related to another person, not Mr Almirol. The designated member from the AAT was not the person who issued Mr Almirol's warrant. The mix-up was investigated by Sergeant Patrick Lynch, who is attached to the Telecommunications Interception Branch. Sergeant Lynch provided a statement in which he described what occurred: (Ex D) "12. The Telecommunications Interception system used by the New South Wales Police is capable of receiving intercepted calls from more than one service on a particular Product Delivery Line, although it is the practice of the Telecommunications Interception Branch to allocate one Product Delivery Line to an individual warrant. 13. On the basis of my examination of the interceptions system, it appears the telecommunications carrier, Telstra, has incorrectly delivered intercepted calls relating to service number 02 9643 8850 to the Product Delivery Line allocated to warrant CO2134-00. These calls should have been delivered by Telstra to the Product Delivery Line allocated to warrant CO2137-00. The problem appears to have been rectified by Telstra on the next business day being 26 May 2003. 14. A problem would arise from this situation when producing calls for evidentiary purposes. The process for transferring calls to Compact Disc involves the loading of intercepted calls by warrant number, as opposed to the targeted service number. The process would automatically have the warrant number and other information transferred directly onto the disk. In the case of intercepted calls for warrant CO2137-OO which were inadvertently delivered to the Product Delivery Line for warrant CO2134-OO, the Compact Disc would show details for warrant CO2134-OO." 48 It was argued that Warrant CO2137 could not be used to justify the interception of the calls and consequently was not available to underpin the reception of that evidence. 49 The Crown asserted that plainly there was a valid warrant. It was simply an administrative error in the mechanics of separating the communications which had been received which related to two valid warrants. There was, according to the Crown, no irregularity and no inhibition upon the reception of the evidence. Alternatively, if there was an irregularity, it was "other than substantial" and came within the following provision of the Act: "75(1) Where a communication has been intercepted in contravention of subsection 7(1) but purportedly under a warrant (other than a warrant under section 11A, 11B or 11C), a person may give information obtained by the interception in evidence in an exempt proceeding, being a proceeding in a court or before a tribunal, body, authority or person, if the court, tribunal, body, authority or person, as the case may be, is satisfied that: (a) but for an irregularity, the interception would not have constituted a contravention of subsection 7(1); and (b) in all the circumstances, the irregularity should be disregarded. (2) A reference in subsection (1) to an irregularity is a reference to a defect or irregularity (other than a substantial defect or irregularity): (a) in, or in connection with the issue of, a document purporting to be a warrant; or (b) in connection with the execution of a warrant, or the purported execution of a document purporting to be a warrant." 50 I was referred to the recent decision by Johnson J in NSW Crime Commission v Vuletic (supra), where his Honour reviewed the authorities on s75 of the Act. I accept the Crown's argument that, if there was an irregularity or defect, it was "other than substantial" and presents no difficulty in respect of the lawfulness of the interception which took place.

The Evidence Act 1995. 51 Moving to the third argument, counsel submitted that the evidence relating to the telephone conversations made pursuant to the warrant should be rejected, either under the discretion provided by s90 of the Evidence Act (which is concerned with admissions), or under s138 of the Act (which is concerned with the exclusion of improperly or illegally obtained evidence). 52 It is convenient to deal with s138 first. There was no suggestion that the police had contravened any law. It was, however, suggested that the evidence had been improperly obtained. Counsel for Mr Almirol pointed to a number of circumstances. The police already had a warrant for the arrest of Mr Almirol. They were therefore not merely investigating a suspect. They had already formed the view that there was evidence that he had committed the offence of murder and, upon that basis, had obtained the warrant (Van der Meer (1998) 35 A Crim R 232, per Mason CJ at 239/40). The police knew that if they (through an officer who spoke Tagalog) attempted to speak to Mr Almirol by telephone or otherwise, they would be obliged to administer a caution. Yet the police resorted to the device of having Mrs Cora Davis, a friend of Mr Almirol, speak to him. It may be inferred that they knew that the use of Mrs Davis, as an agent for the police, had the advantage that no caution would be appropriate or administered. 53 I accept that the circumstances of the call to Mr Almirol were as outlined by his counsel. However the police said, and I also accept, that the purpose of using Mrs Davis to speak to Mr Almirol in the intercepted telephone calls was to obtain corroboration of her account to the police on 21 May 2003, and not to avoid administering a caution (T80). 54 There was, in my view, no improper conduct on the part of the police. It is therefore unnecessary to balance the matters identified in s138 in order to determine whether, under that section, the evidence should be admitted. 55 I turn, then, to the discretion which arises under s90. That section is in these terms: "90 Discretion to exclude admissions 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 a defendant to use the evidence." 56 Counsel drew attention to s84 of the Evidence Act which provides that an admission is not admissible unless the court is satisfied that it was not influenced by "violent , oppressive, inhuman or degrading conduct" or "a threat of conduct of that kind". Here, whilst there was no basis for excluding the intercepted conversations under s84, the discretion provided by s90, it was submitted, was much broader. Fairness included whether, in the circumstances, the admissions said to have been made were "an expression of the independent will" of the person who is said to have made them (Swaffield and Pavic v The Queen (1998) 192 CLR 159, per Brennan CJ at 167ff; Collins v The Queen (1980) 31 ALR 257 at 307). The Crown acknowledged the breadth of the discretion, drawing attention to R v EM [2003] NSWCCA 347 and EM v Regina [2006] NSWCCA 336. 57 As I have mentioned, the exclusion of the evidence under the discretion provided by s90 was argued before James J. His Honour declined to exclude the evidence under that section. Whilst counsel for Mr Almirol relied upon additional material and additional arguments, it is useful at this point, to advert to the matters which persuaded James J that the evidence should not be excluded. His Honour referred at some length to the High Court judgment in Swaffield and Pavic v The Queen (supra). Swaffield was an appeal from Queensland and Pavic from Victoria. Each appeal involved the discretion to exclude evidence of admissions at common law. His Honour noted that there was no material difference between the common law and s90 of the Evidence Act (R v EM (supra) at para [107]). James J remarked that the facts in the Pavic appeal were somewhat closer to the facts in the present case than Swaffield. The facts in Pavic were conveniently summarised by Brennan CJ as follows: (at p166) "5. Police were investigating the murder of a man named Andrew John Astbury, whose body was found in the Yarra River handcuffed to an electric motor casing. The police interviewed Pavic on 3 January 1995 at the homicide squad office at St Kilda Road in Melbourne. At the beginning of the interview, Pavic was given the usual warning and he was advised that he had a right to communicate with his solicitor. He contacted a solicitor. When questioned by the police, acting on his solicitor's advice, he made no comment on the questions put to him. During the questioning, the police informed Pavic that he was believed to have committed the offence of murder. Nevertheless, at the end of the interview, Pavic was allowed to leave the office. 6. On 4 January, the police recovered from the Yarra River a garbage bag containing blood-stained towels and clothing. On 9 January they obtained a statement from Lewis James Clancy in which he identified some of the clothing as clothes which he had left in Pavic's vehicle some time before. Pavic had told Clancy that he had lost the clothes and insisted that he accept $50 for them. This satisfied the police that they had sufficient evidence to arrest Pavic and charge him with murder. After his interview with the police, Clancy agreed to being fitted with a microphone to record a conversation with Pavic. At Pavic's trial, Clancy gave evidence that he agreed to participate in the police investigation by being fitted with a microphone because he wanted to dispel what he perceived to be the police belief that he was implicated in the murder in some way. He conveyed that belief to Pavic, as the police contemplated that he would, although the fact was that at that time Clancy was not a suspect. In the conversation with Pavic which Clancy recorded, Clancy told Pavic that the police had recovered his clothing stained with blood. In the ensuring conversation, Pavic made a number of inculpatory statements." 58 Toohey, Gaudron and Gummow JJ, forming part of the majority, referred to the Canadian decisions of R v Hebert (1990) 2 SCR 151 and R v Broyles (1991) 3 SCR 595. It was recognised that the Canadian cases might be affected by the Canadian charter of rights and freedoms. The authorities were, nonetheless, regarded as "instructive". James J drew attention to the following discussion of these cases: (p7) "87. In R v Broyles the Supreme Court of Canada was constituted by La Forest, L'Heureux-Dubé, Sppinka, Gonthier, Cory, McLachlin and Iacobucci JJ. The judgment of the Court was delivered by Iacobucci J. The accused was charged with murder; the evidence against him was largely circumstantial but it included a statement which the accused made to a friend after his arrest and after he had been cautioned that he was not required to say anything. The friend visited the accused in prison at the request of the police. The friend wore a recording device. The friend questioned the accused about the killing of the deceased. 88. The evidence of the statements made to the friend was excluded pursuant to a provision of the Charter. The Court identified two questions which were necessary for decision but which did not have to be answered in Hebert . The first was whether the friend was an agent of the State. The second was whether the accused's statement had been elicited by the friend. The Court held that the friend was an agent of the State during the conversation. The meeting was set up and facilitated by the police and, without the intervention of the authorities, there would have been no conversation. The Court held further that the statement had been elicited because parts of the conversation were in the nature of an interrogation, not just parts of a conversation which flowed naturally. It concluded that the admission of the evidence would render the trial unfair." 59 His Honour then extracted the following passage where Toohey, Gaudron and Gummow JJ made the following comments in the context of Pavic's case: (p8) "100. No caution was administered by Clancy, which is hardly surprising in the circumstances. The circumstances are close to those in Broyles, the Canadian decision . As in Broyles , the person with whom Pavic spoke must be regarded as an agent of the State. The meeting was not directly set up by the police but Clancy spoke with Pavic at the request of the police who equipped him with a recording device. 101. If Broyles is applied, the next question is whether the admissions by Pavic were elicited by Clancy or were made in the course of a conversation. Put another way, was there an interrogation by Clancy? 102. Pavic argued that he was misled by Clancy into making the admissions he did. The trial judge approached the exercise of his discretion on that footing and said: 'Whilst the role of the accused in the killing was volunteered by him to Clancy in a somewhat limited fashion, it cannot, in my view, be said to be the result of, or inextricably linked to, the expressed fear of Clancy that he may be charged with an offence.' 103. In all the circumstances there is no sufficient reason to interfere with the trial judge's refusal to exclude the evidence of the conversation. This appeal should also be dismissed." 60 Applying these principles James J found, as the Crown conceded before me, that Mrs Davis should be regarded as an agent of the State. The police had asked her to make the call. They gave her instructions. I would add that they paid for the call by providing her with a phone card. But for their intervention, the call would not have been made. 61 Further, James J, whilst acknowledging that it was not always easy to distinguish between "interrogation" and a "free flowing conversation", found that the conversation should be characterised as "interrogation". On a number of issues Mrs Davis was persistent, returning repeatedly to the same issue. I agree with that conclusion. 62 James J also acknowledged that there had been some misrepresentation on the part of Mrs Davis. I would add that certainly she had omitted to disclose the circumstances which caused her to make the call. She told Mr Almirol that she was seeking clarification of the account he had given on the farm at Christmas, whereas in fact she was quite clear in her own mind as to what he had said. 63 Against that background, and these findings, James J dealt with the discretion under s90. The court was enjoined to look at all the circumstances in determining whether there is unfairness to the accused in admitting the evidence. His Honour was not persuaded that he should exercise his discretion to exclude the evidence, having regard to the following circumstances which I summarise (pp 10-12). · First, there had been no refusal by Mr Almirol to make a statement to the police. His case, in this respect, differed from both Swaffield and Pavic. It also differed from both the Canadian cases. · Secondly, Mr Almirol had left Australia on 19 December 2002 for the Philippines, where he remained. There was no indication that he intended to return to Australia. By his departure, he had deprived the police of any opportunity of questioning him in Australia. · Thirdly, the accused had spoken in detail, and without apparent reluctance, to Mrs Davis in the Philippines. The questions in the intercepted conversations were "to a large extent, although not entirely" concerned with "seeking confirmation and clarification or amplification of what the accused had already told her". · Fourthly, the reliability of the admissions provided by Mr Almirol to Mrs Davis were not likely to have been affected adversely by what Mrs Davis said to him, nor the fact that she to some extent interrogated him. · Fifthly, although Mrs Davis was provided with instructions by the police as to the questions she may ask, they were contained on a single sheet of paper. They "fell far short" of a comprehensive script. It was not a case of "an intermediary, in effect, interviewing a suspect by asking questions drafted by the police". · Sixthly, although there was some misrepresentation by Mrs Davis about the purpose of her call -- what were termed "half truths" by his Honour -- the same is true of virtually every conversation where a person has been fitted with a listening device. His Honour added this: (p12) "In the present case no representation was made that what was said in the conversations would not be recorded or that what was said in the conversations would not be used in evidence. Although the admissions would not have been made in the absence of what Mrs Davis said, I do not consider that the admissions made by the accused were otherwise caused by what Mrs Davis said to him." · Seventhly, his Honour recognised that some prejudice may attack to particular answers within the recorded conversation. However, he considered that the accused could be protected against such prejudice by the giving of directions and/or by editing the interview. 64 As mentioned, the material placed before me is not the same as that before James J. I will now deal with the additional material.

The additional material. 65 Counsel pointed to two matters additional to those placed before James J, which were relevant to the discretion under s90. They were: · First, the status of Mr Almirol as an accused, not simply a suspect. · Secondly, the "special relationship" between Mr Almirol and Mrs Cora Davis. 66 Dealing with the first matter, counsel drew attention to the phases of a criminal investigation as described by Mason CJ in Van der Meer (supra) where the former Chief Justice said this: (at 239/40) "In reaching the conclusion that there was no impropriety in the interrogation of the applicants the trial judge overlooked the well-established constraints that apply to the interrogation of suspects. The common law balances (a) the need to allow the police freedom of action in the investigation of crime in order to ascertain the wrongdoer and (b) the need to ensure that a suspect is fairly treated and his right to silence protected. This balance is achieved by permitting the police to conduct a general inquiry into an unsolved crime until the stage is reached when the accusatory stage begins. It is notoriously difficult to define the point at which that stage begins because there is an infinite variety of fact situations. The Judges' Rules endeavoured to meet this problem by imposing restrictions on police interrogation by reference to the occurrence of three events in the course of an investigation. They were: (1) when a police officer made up his mind to charge the suspect with a crime (r 2); (2) when a suspect was taken into custody (r 3); and (3) when a suspect was formally charged (r 8). The occurrence of any one of these events may be taken as marking the beginning of the accusatory stage when the giving of a caution is required: see G L The, 'An Examination of the Judges' Rules in Australia' (1972) 46 ALJ 489 at 493. And in one other situation at least the obligation to give a caution will arise earlier. For example, when the police have sufficient evidence in their possession to justify a charge, even if they have not decided to charge the suspect: see Devlin, p29." 67 Here, James J referred to Mr Almirol as a "suspect" (p 5). However, the investigation had passed beyond the point where he was simply a suspect. An information had been filed and a warrant issued on 8 May 2003, that is six weeks before the intercepted telephone calls. Accordingly, were Mr Almirol questioned by the police, a caution would be required. It was submitted, in these circumstances, that there was real unfairness in the police using an agent to question the accused, and thereby avoiding a caution. 68 For a number of reasons, however, I am not persuaded that anything turns upon the fact that James J referred to Mr Almirol as a suspect, as opposed to someone that had been charged. First, James J was certainly aware of the accusations of Prehector Trocio against Mr Almirol, which had been made in April 2003, and which to some degree were supported by his wife. Whether charged or not Mr Almirol, if interviewed by the police at any time thereafter, would require a caution. Secondly, although unquestionably there were circumstances known to the police which created suspicion concerning Mr Almirol and his possible role in the death of the deceased (including his sudden flight to the Philippines), the charges necessarily relied upon the accusations of Prehector Trocio. It may be inferred that, as at 23 May 2003, when the police sought an interception warrant, they recognised that the case against Mr Almirol had two difficulties. The first was that Prehector Trocio, his accuser, was an accomplice. His evidence may be unreliable (cf s165(1)(d) of the Evidence Act 1995). Secondly, and in any event, although Prehector Trocio's version had been the fundamental basis upon which the police might reasonably have formed the view that the accused was guilty of murder (justifying the first instance warrant), that version had since been undermined by information furnished by Mrs Cora Davis. Her account, based upon conversations with both Prehector Trocio and Mr Almirol on 16 December 2002, and subsequent face to face conversations with Mr Almirol at the farm, suggested that Mr Trocio's early version was indeed unreliable. According to her, he had acknowledged that both were involved. More than that, Mr Almirol described a circumstance which, if accepted as possible, raised issues concerning self defence. Mr Almirol asserted that he went to the rescue of his friend, Prehector Trocio, who was then under attack by a much larger man who was armed with a knife. Although, according to Mrs Davis, he acknowledged having ultimately cut his throat upon the urging of Prehector Trocio, he said he did so in circumstances where he believed that the victim was dying and to put him out of his misery. 69 That was a strikingly different and more problematical account than Hector Trocio's version which the police had relied upon in the warrant application. It could not be ignored. It is understandable, in these circumstances, that the police should seek confirmation of Mrs Davis' account. It was impractical simply to await the extradition, assuming an order could be obtained. Extradition could be months away, as events proved. 70 Moving to the second additional matter, the relationship between Mrs Davis and the accused, attention was drawn to the evidence given by Mrs Davis on the voir dire. She said this, responding to a number of leading questions: (T86) "Q. Would it be fair, in part, that you wanted an explanation from him as to what that man, Mr T, was doing there in the first place, drinking there - A. Yes. Q. It was not just the terrible fact that this man died, but how did he let this to happen in the first place? How did he let this drinking session occur in your place, that is what you wanted to know, is that fair? A. Yes. Q. He owed you a debt of gratitude? More so than, say, in Australian society, deeper than that, because of your connection and your heritage, he was responsible to you for what had occasioned in that house, it is as simple as that? A. Yes. Q. He owed you an explanation, would that be fair to say? A. Yes. Q. And, indeed, it would be more than rude if he didn't provide you with an explanation? A. Yes." 71 Mrs Davis agreed that, the murder having occurred in her house when Mr Almirol was in occupation, created on his part towards her "a deep sense of debt of gratitude" and of "shame" (T87/88; Ex 4). Counsel then asked the following questions, without objection: (T88) "Q. I know that you cannot answer for another person, but would this be a fair proposition - and it may be objected to - if I owed you a debt of gratitude and brought shame to you and you asked me; well, you tell me exactly what happened, I would be compelled to give you those answers - to give you that explanation, would that be fair to say? A. Yes." 72 Were a person in Australia generously to allow another to occupy their house whilst they were away, that person would no doubt owe a debt of gratitude. If things went wrong, the person in occupation would no doubt feel they owed the owner some sort of explanation. I rather doubt that the situation is remarkably different in the Philippines. 73 However that may be, I do not accept that, in any sense, even making due allowances for differences in culture, that the statements by Mr Almirol in response to Mrs Davis during the intercepted conversations were involuntary (cf Swaffield and Pavic (supra) at 169/170). Mrs Davis was known to Mr Almirol. She was not a "person in authority". She was a friend who had extended a kindness to him. Things had gone badly wrong, causing Mrs Davis some real inconvenience. Nonetheless, it could not be said that Mr Almirol was overborne. He responded to her questions. He told her what he chose to disclose. There were, for instance, differences in the account he gave in their face to face meeting at Christmas and the conversations in May 2003. 74 It often happens that the person who makes the telephone call, or is fitted with a listening device, is a friend and has the trust of the person to whom he or she is speaking. It is that trust which makes the evidence highly reliable. It will be noticed that the person who was used to obtain the evidence in Pavic was Clancy, a friend of Pavic. In that context, Brennan CJ said this in Swaffield and Pavic (supra): (at 185/6) "In Pavic's case, the confessional statements were made to Clancy whom Pavic knew as a friend. Clancy was not a police officer or other person in authority over Pavic. There was no impropriety in the police obtaining Clancy's consent to the recording by Clancy of his intended conversation with Pavic. A serious crime had been committed and the means adopted for its solution and for the securing of evidence against the prime suspect were quite legitimate. The investigation of crime is not a game governed by a sportsman's code of fair play ( Bunnings v Cross (1978) 141 CLR 54 at 74, per Stephen and Aickin JJ). Fairness to those suspected of crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation or the giving of a sufficient opportunity 'to invent plausible falsehoods' ( R v Lee (1950) 82 CLR 133 at 152)." 75 Sperling J, in R v Cassar (No 27)[1999] NSWSC 650, referred to the following passage from a judgment of Dowsett J in O'Neill (1995) 81 A Crim R 458, where the following was said: (at 553) "It cannot be said that because Lally was acting covertly on behalf of the police, there was inequality in the relationship between her and the appellant which might suggest to the appellant that she was under an obligation to speak. No question of involuntariness or unfairness arose from the fact that the appellant was not warned. The police are not obliged to be absolutely frank in investigating crime. Indeed, the law providing for the use of listening devices is statutory authority to the contrary. Although we might all prefer that friendship not be exploited for ulterior purposes, the public interest in detecting and punishing crime outweighs social nicety. " (emphasis added) 76 Turning, then, to the discretion under s90, I adopt the reasons of James J and determine that, having regard to all the circumstances, including the additional material placed before me, the Court should not refuse to admit the evidence upon the basis that it would be unfair to the accused to use the evidence, subject to the comments of James J which I repeat: (p12, para [7) "... It may be that there would be some prejudice to the accused through the admission of evidence of things said by Trocio about what had happened on 15 December 2002. However, I consider that the accused can be protected against any such prejudice by the giving of directions and/or by the editing of the interview." **********

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