//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2000] VSCA 6
Court of Appeal (Vic)
2000-02-15
CHARLES & CHERNOV, JJ.A. and HEDIGAN, A.J.A.
Original judgment source is linked above.
1. The judge erred in admitting evidence of covert tape-recordings between the applicant and Warren and Ingrid Eyles made on 9 and 10 May 1997.
2. The judge failed to adequately charge the jury in relation to the principles of acting in concert and aiding and abetting.
4. The verdicts of the applicant and the co-accused Jason Jackson are inconsistent.
5. The Crown's acceptance of a plea of manslaughter by the co-accused, Jason Jackson, has resulted in a miscarriage of justice and justifies the substitution of a verdict of manslaughter for the applicant.
"... Took her to this house, fucking gave her a hot shot, battery acid. And then, and then like put her in the boot. Took her out to this fucking joint, burn her, and just left."
The applicant said she burned the body and then the conversation continued -
"WARREN: Was she dead when you, when you gave her the, when you burnt her?
CARTER: Yeah. Yeah, when I burned her she was dead, yeah.
CARTER: Yeah. Well because I had to strangle her as well.
WARREN: Yeah. What, you, you gave her a hot shot and then strangled her?
WARREN: But burns, bones don't fucking burn you idiot.
CARTER: I know. And then I thought fucking I'll go scatter them."
The following day the applicant telephoned the Eyleses and arranged to meet them at 6.00 that evening. They met at Nunawading train station, and the applicant was accompanied by Jewell, whom she introduced as her "co-offender". They then drove to the location near Coldstream where the body of the deceased had been taken. In the car the applicant, with Jewell, again explained how the killing and disposal had taken place, offering a different account in certain respects. They then returned to Melbourne, and after dropping off the two women, the Eyleses met up with Detective Smith and other officers and directed them to the location of the body.
"The police were conducting their investigations in a proper way and ... the use of the informers by Mr. Smith was not the use of an agent to avoid police responsibility at that stage, to treat Miss Carter in the way that she ought to have been treated had the police themselves continued this investigation, by questioning her."
His Honour therefore determined not to exclude the first conversation. As to the second conversation, his Honour was concerned as to whether a distinction should be drawn between the two conversations, having regard to the obviously changed perceptions of the police. His Honour accepted that the police may have been in a position at that stage to arrest the applicant but in his Honour's view the second discussion became part of the attempt by the Eyleses to get the applicant to show them the body, consistently with what she said had happened to it. His Honour then said of the second conversation -
"It does not amount to the eliciting by interrogation of information in the sense used by the High Court. Rather it is a continuing discussion and an attempt to follow up upon what the accused ... had said and to have the body shown to them. It is true that that was done by a subterfuge in that the Eyleses were pretending to want to assist her to destroy the evidence."
Accordingly his Honour decided that the conversations did not go beyond what is part of an appropriate investigation at that time by the police and the informers.
(1) finding that Warren and Ingrid Eyles were not acting as agents of the police in secretly recording their taped conversations with the applicant;
(2) finding that the admissions on the Eyles tapes were not elicited by Warren and Ingrid Eyles; and
(3) failing properly to apply the principles stated in Swaffield and Pavic.
It was submitted that the applicant always had a right to remain silent, or to choose whether or not to speak, and that she had a fundamental entitlement to remain silent when questioned or asked to supply information to members of the police force, that right being founded upon a concern to maintain a fair balance between the State and the individual. It was submitted that her freedom to choose to speak to the police was impugned to a significant extent by the covert taping of her conversations with the Eyleses. By 9 May 1997 the applicant had already exercised her right to choose not to speak to the police, in conversation with the Homicide Squad on 9 April. It was submitted that the police then sought to circumvent the applicant's exercise of her right of choice, and created, instigated and engaged in a course of conduct by which they were able to conduct interviews with the applicant that were designed to obtain a confession uninhibited by the requirements of common law and statute.
"The first set of factors concerns the nature of the exchange between the accused and the State agent. Did the State agent actively seek out information such that the exchange could be characterized as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informant to be playing would ordinarily have done? The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation.
The second set of factors concerns the nature of the relationship between the State agent and the accused. Did the State agent exploit any special characteristics of the relationship to extract the statement? Was there a relationship of trust between the State agent and the accused? Was the accused obligated or vulnerable to the State agent? Did the State agent manipulate the accused to bring about a mental state in which the accused was more likely to talk?"
"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. 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'.
The fact that Clancy was regarded as trustworthy by Pavic is an indicator of the reliability of the admissions made to Clancy. There was no public interest to be served by rejecting those admissions."
"In the light of recent decisions of this Court, it is no great step to recognize, as the Canadian Supreme Court has done, an approach which looks to the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the Court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the Court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but 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. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations."
"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.
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?
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.'
In all the circumstances there is no sufficient reason to interfere with the trial judge's refusal to exclude the evidence of the conversation."
"Whilst it is true, as Brennan, C.J. stated in Pavic's Case, the investigation of crime is not a game governed by a sportsman's code of fair conduct, the Court may, and should, reject admissions which it views as having been elicited as a result of a significant misleading of an accused.
As Mr. Bezzina[11] frankly acknowledged, Engels went beyond the bounds of what he would have liked. That is a risk law enforcement officers run when utilizing this method of obtaining admissions.
Each case must of course turn on its individual facts. In the trial of Pavic I formed the view, listening to the conversations as a whole, that the admissions made did not have their genesis in any misleading statements by Clancy. In the present case I have come to the opposite conclusion."
"On one view, the police may have been in a position at this stage to arrest Carter and subject her to questioning observing all the rules relating to that under s.464(4) (of the Crimes Act). But what in fact occurred is that the informers had said that they would like to see the body of the deceased and that emerged from the first conversation. Having done that, the second discussion became part of the attempt by the Eyleses to get Carter to show them the body consistently with what she said had happened to it.
Again, I think, looking at that conversation, it does not amount to the eliciting by interrogation of information in the sense used by the High Court. Rather, it is a continuing discussion and an attempt to follow up upon what the accused, Carter, had said and to have the body shown to them. It is true that that was done by a subterfuge in that the Eyleses were pretending to want to assist her to destroy the evidence. Nevertheless, being of the character that I have described, I think it should be looked at, as the continuing of the investigation by the police, and by the informers themselves, who are related to the deceased, of what Carter had said earlier. Again Carter was not in custody, she was not under police control ... she was obviously doing what she thought may be in her best interests, and, in those circumstances, the long conversation which involved going to where the body was took place."
"In this case, the Crown allegation, the Crown case, is that the accused acted in concert with Jackson and did acts which were part of the acts which amounted to murder, or, alternatively, she was there and by her presence aided and abetted the commission of that crime, by either encouraging or assenting to it. So that is the basis on which the Crown puts its case.
If you are satisfied of those elements, then of course you would find the accused guilty of murder. If you have a reasonable doubt about them, you would of course find her not guilty of murder."
The submission continued that while the judge directed the jury that it had to be satisfied of "those elements" referred to in the first passage above in relation to aiding and abetting, the direction focused on the conduct of the applicant. It failed to make it clear, so the argument ran, that the jury also had to be satisfied beyond reasonable doubt that Jackson murdered the deceased, if the jury was to find her guilty of murder on the basis of aiding and abetting Jackson. The submission continued that the jury should also have been directed that to establish aiding and abetting on the basis of encouragement, there must not only be an intention to encourage but deliberate and wilful encouragement of the principal and that deliberate aid or encouragement may be established by proof that the alleged aider and abettor was both present and ready to give aid to the principal. Mr. Grace submitted that the judge's redirection failed to adequately direct the jury in accordance with law, nor did it adequately relate the facts of the case to the law.
"The conviction of a person charged as accessory is not necessarily inconsistent with the acquittal or failure to convict a person charged as the principal offender. That is because the evidence admissible against them concerning the commission of the offence may be different. Even so, an accessory cannot be convicted unless the jury is satisfied that the principal offence was committed. Thus, if two people are tried together as principal and accessory and the evidence as to the commission of the crime is the same against both, acquittal of the person charged as principal is inconsistent with the conviction of the other."
"Those who aided the commission of a crime but were not present at the scene of the crime were regarded as accessories before the fact or principals in the third degree. Their liability was purely derivative and was dependent upon the guilt of the person who had been aided and abetted in committing the crime. Those who are merely present, encouraging but not participating physically, or whose acts were not a substantial cause of death, were regarded as principals in the second degree. They could only be convicted of the crime of which the principal offender was found guilty. If that person was not guilty, the principal in the second degree could not be guilty. Their liability was, accordingly, also derivative.
Mr. Grace also relied on Surujpaul v. R.[17]
"In the light of the wealth of both academic and judicial consideration that has been devoted to this topic in recent years, we have no doubt that this Court should now redirect the common law of Australia on to its true course. It should determine that the conviction of a conspirator whether tried together with or separately from an alleged co-conspirator may stand notwithstanding that the latter is or may be acquitted unless in all the circumstances his conviction is inconsistent with the acquittal of the other person. In our opinion such a determination will focus upon the justice of the cases rather than upon the technical obscurities that now confound the subject."
"Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way in which the appellate court may reconcile a verdict, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellant court, upon this ground, to substitute its opinion of the facts for one which was open to the jury."
and MacKenzie,[23] and what was said by Gaudron and Gummow, JJ. in Osland.[24] But even if it is possible to find inconsistency in convictions, it is also reasonably apparent that it is more difficult to establish relevant inconsistency when the convictions said to be inconsistent were obtained in respect of different accused at different trials; Andrews Weatherfoil Ltd.;[25] Hui Chi-Ming v. The Queen;[26] and see the observations of McHugh, J. in Osland.[27]
[4] [1998] HCA 1; 192 C.L.R. 159 at 185-186.
[5] [1998] HCA 1; 192 C.L.R. 159 at 202.
[6] [1998] HCA 1; 192 C.L.R. 159 at 203-204.
[7] [1998] HCA 1; 192 C.L.R. 159 at 225.
[9] The trial judge also in Pavic, and who in that case had refused to exclude the confessional statements made by Pavic.
[10] [1998] 4 V.R. 636 at 647.
[11] A police senior sergeant who was one of the investigating police.
[12] [1972] VicRp 63; [1972] V.R. 560 at 561-562.
[18] [1982] HCA 32; (1982) 148 C.L.R. 668 at 678.
[19] (1996) 190 C.L.R. 348, per Gaudron, Gummow and Kirby, JJ. at 366, proposition 3.
[22] [1982] HCA 32; 148 C.L.R. 668 at 678 (the passage cited in [[] above).
23] 190 C.L.R. 348 at 366-368, especially propositions 2 and 5.
[24] [1998] HCA 75; 73 A.L.J.R. 173 at [14] and [40]. Their Honours were in dissent, but not, I think, on this point.
[25] (1971) 56 Cr.App.R. 31, at 40.
[26] [1992] 1 A.C. 34, at 42-43.
[29] [1998] HCA 75; 73 A.L.J.R. 173 at [71] and [79-80].
[30] [1992] 1 A.C. 34 at 42-43.
[32] [1998] 1 Qd.R. 634, at 647-648.
[33] Cf. Darby [1982] HCA 32; 148 C.L.R. 668 at 678.
R
Carter [2000] VSCA 6
Criminal law - Evidence - Admissions - Secretly taped conversations - Admissions to friend -Agent of police - Voluntary statements - Whether admissions elicited by friend - Discretion to exclude - Unfairness discretion - Public policy - R. v. Swaffield; Pavic v. R. [1998] HCA 1; (1997) 192 C.L.R. 159.