R v Borg

2 The witness, Michael Spiropoulos, approached the police and made a statement on 6 April 2010 about his involvement in the alleged murder of Peter Rule. Later in April 2010, the police obtained a warrant to intercept Spiropoulos' phone for the purpose of recording conversations that he had with Borg. In particular, a number of telephone conversations were recorded on 21 and 22 April 2010.[2]

3 In the written summary of the Crown opening, it is put that these recorded conversations amount to relevant and admissible evidence about a number of important issues in the trial, including:

(a) that Borg had a guarded attitude consistent with an involvement in the murder (rather than a questioning attitude);

(b) a power imbalance, shown by Borg's authoritative instructional position over Spiropoulos, and an interest by Borg in the involvement of the police;

(c) an involvement in the cannabis crop at the Thomastown factory;

(d) a knowledge or involvement in matters pertaining to the blue Volvo;

(e) a sense of urgency and desperation in Borg to speak with or deal with Spiropoulos before he spoke with police following the police having left a business card with Spiropoulos' mother (which the Crown say show a concern by Borg that Spiropoulos might incriminate Borg);

(f) a knowledge of the relevance of the blue Volvo and the importance of providing an innocent explanation for why Spiropoulos might have been driving it; and

(g) a desire to avoid any conversation with Spiropoulos being listened to by police.

4 On the voir dire, the informant, Detective Senior Constable Rowe, gave evidence and said, among other things, that on 11 April 2010 Spiropoulos was asked by police whether he would be willing to speak to the accused on the phone and meet with him. He agreed that the second option was later reconsidered and did not occur. On 18 April 2010, police obtained a warrant to monitor Michael Spiropoulos' phone. Spiropoulos did not have a phone number for the accused and had not spoken to him for some time. A message was left for an intermediary.

5 On 21 and 22 April 2010 a number of calls were recorded between the accused man and Spiropoulos. Detective Senior Constable Rowe said that Spiropoulos was not told that the calls were being monitored though it seems clear that Spiropoulos realised that was occurring at some stage. In his evidence, Rowe then described the sequence of events consistent with the calls that occurred and was cross examined.

6 The recorded conversations contain several statements by the accused which the Crown wish to rely on as demonstrating a desire by the accused to have some control over what Spiropoulos would say to police and which, the Crown will argue, demonstrate that the accused was conscious of his involvement in the death of Peter Rule.

7 The particular matters relied upon by the Crown include:

• The accused suggesting to Spiropoulos what he should say when he speaks to the police, particularly in relation to the blue Volvo motor vehicle which is alleged to have been used to transport the body of the deceased away from the premises where he was killed;

• A desire by the accused, which appears to become urgent, to speak to Spiropoulos before he speaks to the police;

• An assurance by the accused to Spiropoulos that he has nothing to worry about;

• A direction by the accused to Spiropoulos to get another SIM card for his phone and not to call the accused on that phone, coupled with a concern about whether the police can make a connection between them;

• A direction by the accused to Spiropoulos to tell the police that he cannot read or write for the purpose of participating in a record of interview; and

• Several statements by the accused that Spiropoulos should tell the police the truth (arguable only in relation to the blue Volvo) which finally drew the response from Spiropoulos that he could not do that. When Spiropoulos asked the accused what he wanted Spiropoulos to say, the accused said, "Well, fuck, mate, that's why I want to talk to you."[3]

8 I have listened to the various conversations on 21 and 22 April 2010 that the Crown propose to put to the jury and the informant, Detective Senior Constable Rowe has given evidence about the circumstances under which the calls were monitored.

9 On behalf of the accused it is submitted that I should exclude this evidence. The first submission made by Ms Randazzo SC for the accused seemed to be that the evidence was not admissible because there was nothing in the utterances of her client in these conversations that could be regarded as an admission. Given the manner in which I understand that the Crown wish to use this evidence, which is obvious from the nature of the conversation, in my opinion it is open to them to do so. The Dictionary in the Evidence Act 2008 defines "admission" as follows:

admission means a previous representation that is -

(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and

(b) adverse to the person's interest in the outcome of the proceeding;

10 It seems to me that the matters set out paragraphs [3] and [7] (above) are capable of rationally affecting the assessment of the probability of the existence of the facts asserted by Spiropoulos in relation to the offence charged and, as such, are relevant and admissible[4]. Even on a narrower view of the meaning of "admission", the representations the accused has made in this case are adverse to his interests in his trial.[5]

11 As I follow it, the second submission on behalf of the accused was that, even if that be so, I should exclude this evidence pursuant to s 90 of the Evidence Act 2008 which 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.

12 On that point, senior counsel for the accused placed significance reliance on the judgement of the Court of Appeal in WK v The Queen[6] because of what she argued were the similarities of fact and principle between that case and this. In that case, the trial judge had admitted a recording of a conversation between the complainant and the applicant on which the prosecution case totally depended. As the Court noted, the conversation which had been recorded was a "pretext" conversation for the purpose of eliciting admissions from a person alleged to have committed (what were very often sexual) offences against the complainant.

13 In that case, the complainant had had a relationship with the applicant and the relationship had ended. Some time after that the applicant is alleged to have threatened the complainant that he would publish intimate photographs of her unless she agreed to have sexual intercourse with him twice a month. At the suggestion of the police she made contact with the applicant in a recorded conversation to get him talking about this topic. She did that and the conversation was recorded on a recorder she was given by the police. There was a threshold issue as to whether that activity breached the Surveillance Devices Act 1999. No such issue arises before me. The Court went on to examine whether, lawfulness apart, the evidence should be excluded under ss 90 or 138 of the Evidence Act 2008.

14 In the case before me, no reliance can be placed on s 138 by counsel for the accused because, as she frankly accepted:[7]

We are not going to say it's an unlawful one, certainly not here in this case because in this case they had a telephone intercept warrant in any event, so it's not unlawful or illegally obtained in that regard, but it nonetheless does give rise to whether or not prevailing community standards have been in some way breached, because whether you like it or not, a case of a suspect who has not been cautioned and given his rights [was] effectively being tricked into making admissions.

It was not suggested that the evidence was obtained either improperly or "in contravention of an Australian law".[8]

15 In WK v The Queen, both the trial judge and the Court of Appeal were referred to the judgment of the New South Wales Court of Criminal Appeal in Pavitt v The Queen.[9] In the joint judgement of McColl JA and Latham J, their Honours discuss the operation of the judicial discretions when confronted by covertly recorded conversations:[10]

In our view, without being exhaustive, the following propositions relevant to the present case can be extracted from the authorities to which we have referred concerning the admissibility of covertly recorded conversations:

(a) the underlying consideration in the admissibility of covertly recorded conversations is to look at the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned;

(b) if that freedom is impugned, the court has a discretion to reject the evidence, the exercise of which will turn on all the circumstances which may point to unfairness to the accused if the confession is admitted;

(c) even if there is no unfairness the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards;

(d) the question whether the conversation was recorded in circumstances such that it might be characterised as either unfair and/or improper include whether the accused had previously indicated that he/she refused to speak to the police;

(e) the right to silence will only be infringed where it was the informer who caused the accused to make the statement, and where the informer was acting as an agent of the state at the time the accused made the statement. Accordingly, two distinct inquiries are required:

(i) as a threshold question, was the evidence obtained by an agent of the state?

(f) a person is a state agent if the exchange between the accused and the informer would not have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents;

(g) absent eliciting behaviour on the part of the police, there is no violation of the accused's right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police;

(h) admissions will have been elicited if the relevant parts of the conversation were the functional equivalent of an interrogation and if the state agent exploited any special characteristics of the relationship to extract the statement; evidence of the instructions given to the state agent for the conduct of the conversation may also be important; and

(i) the fact that the conversation was covertly recorded is not, of itself, unfair or improper, at least where the recording was lawful.

We would add that views may differ about whether a complainant is a state agent, even if the conversation is recorded in circumstances facilitated by the police. For our part we would not readily apply the label of state agent to a complainant speaking to a suspect who had not been charged, nor refused to speak to police. Rather we would look at the whole relationship as revealed by the participants' past history and what is revealed by the actual conversation. It may be relevant to consider whether the police scripted the conversation.

16 Senior counsel for the accused submitted in some detail that many of the factors referred to in Pavitt, above, apply in this case adversely to the admission of the evidence. In his judgement in WK v The Queen, Maxwell P refers to the manner in which McColl JA and Latham J applied the principles that they summarised in Pavitt:[11]

McColl JA and Latham J concluded that the trial judge had not erred in declining to exclude the evidence. It was relevant, in their Honours' view, that:

• the suspect had not declined to be interviewed by the police. He "took the risk when he continued the conversation with the complainant ... that the complainant might speak to the police";
• there was nothing in the circumstances in which the conversation occurred which indicated that the suspect's statements were unreliable. "He could have withdrawn from it at any time";
• it could not be concluded that the complainant was an agent of the police:

As we have already said, we find it difficult to conclude that the complainant was an agent of the police. Superficially, looking merely at the relationship between the complainant and the police, he was their agent, because the conversation would not have taken place as it did, that is it would most probably not have been recorded if the police had not obtained a warrant and arranged for the complainant to participate in it. However even if the complainant was a state agent, in our view he did not exploit any special characteristics of his relationship with the [suspect].

• the conversation would not have been materially different if, as a matter of form, the police had not arranged it; and
• the conversation could not be viewed as "the functional equivalent of an interrogation".

17 In my opinion, the considerations of McColl JA and Latham J to which I have just referred apply in this case. Having heard the evidence of Detective Senior Constable Rowe, listened to the telephone intercept recordings and considered the submissions of counsel, I have reached the following conclusions about the recorded conversations between Spiropoulos and the accused which support admission of the evidence:

• whilst this evidence does not carry the probative value that would be carried by direct admissions of wrong doing, as occurred in WK v The Queen, the evidence nonetheless has probative value for the reasons the Crown have submitted in paragraph [3], above, and as I put to counsel in argument:[12]

The Crown want to say that those conversations demonstrate that when your client was confronted with the interest of the police, including a member of the Homicide Squad, in speaking to Spiropoulos about the vehicle in which the Crown say your client disposed of Rule's body, he was very keen to discuss the matter with Spiropoulos before Spiropoulos spoke to the police. Why? Because he wanted to make sure that Spiropoulos would say to the police things which would avoid the incrimination of Borg in the killing of Rule.

• whilst the informant, Detective Senior Constable Rowe, made some suggestions about topics that might be discussed between Spiropoulos and the accused, no "script" was provided;

• the conversations between Spiropoulos and the accused were not the functional equivalent of an interrogation of the accused;

• no topic was raised by Spiropoulos, other than by implication, which was directly connected with the murder of Peter Rule;

• even if he were to be regarded as a State agent on the basis that these calls would not have occurred but for the request made to Spiropoulos by the police, and the false impression created that Spiropoulos was being asked to speak to the police for the first time, there was no exploitation by Spiropoulos of the relationship that he had with the accused. Listening to the recordings creates an opposite impression from any suggestion that the accused was in any way vulnerable;

• the accused was not obliged to speak to Spiropoulos or participate in the conversations. It is true that Spiropoulos initiated the first contact but once the accused knew there was an issue about Spiropoulos speaking to the police, he initiated all of the calls;

• the accused had not previously refused to speak to police and he took the risk that Spiropoulos might reveal the conversations they were having; and

• there is nothing about the circumstances which would suggest that what was being said by the accused was unreliable.

18 In my opinion, having regard to the circumstances in which these recorded conversations occurred, it would not be unfair for them to be admitted into evidence.

[1] DPP v Borg (Ruling No. 1) [2012] VSC 26R.

[2] The recordings of the intercepts were played in Court on 25 January 2012 and have been marked as Exhibit AC on the voir dire. Transcripts of the calls are set out in the depositions at 1088.

[4] Evidence Act 2008, ss 55 & 56; and R v JGW [1999] NSWCCA 116.

[5] See per Spender J in R v GH [2000] FCA 1618; (2000) 105 FCR 419.

[6] [2011] VSCA 345.

[8] Evidence Act 2008, s 138(1)(a).

[9] [2007] NSWCCA 88; (2007) 169 A Crim R 452.

[10] Ibid. at [70] - [71] inclusive, citations omitted.

[11] [2011] VSCA 345 at [50], citations omitted.