R v Chimirri [2002] VSC 555

8. Shortly after the incident Ebrahim attended the Epping Police Station where he reported the shooting and made a statement.

11. The accused was arrested by officers of the Organised Crime Squad on 24 May 2001. He was interviewed on 24 May 2001 with respect to both the incident involving Ebrahim and another incident in which one Piper was shot on 18 February 2001 in Northcote. After obtaining legal advice the accused exercised his right to silence and made a "no comment" interview. He also declined to participate in an identification parade. At the completion of the interview the accused was charged both with the attempted murder of Ebrahim on 5 April 2001 and the attempted murder of Piper on 18 February 2001. He was also remanded in custody.

14. On 30 May 2001 arrangements were made by the officers of the Organised Crime Squad to move the accused to the Melbourne Assessment Prison and to place the accused in a cell with one Stewart. Stewart (who was on remand for various offences) had earlier made a statement implicating the accused as the person who shot Piper. Before the accused was placed in the cell with Stewart instructions were given by a Senior Detective to Stewart. It was agreed that the conversation would be recorded via a listening device and that Stewart would discuss both the Piper incident and the Ebrahim incident, as well as another matter referred to as the Katerina Smith matter, with the accused.

17. When Stewart and the accused were placed together in a cell the subsequent conversation contained substantial reference both to the Piper matter and to the Ebrahim matter. This conversation was recorded.

20. Following a preliminary hearing in June 2002, the accused was discharged with respect to the attempted murder of Piper but was committed to stand trial for the attempted murder of Ebrahim. The Crown now seeks to rely upon the relevant parts of the tape recorded conversation relating to the Ebrahim incident. It is submitted on behalf of the accused that the tape recorded conversation should be excluded from evidence.

23. Mr Shirrefs (who appeared with Mr Hannan for the accused) submitted the following preliminary aspects of the facts were significant to the context in which my discretion should be exercised.

(a) The warrant for the listening device was obtained in respect of investigations into the death of one Katerina Smith and in particular matters relating to the disposal of her body in relation to which the accused was a suspect and had been interviewed but not charged;

(b) Both in respect of the present matter and in relation to the charge of attempted murder relating to Piper:

(i) the accused man had been charged and was not just a suspect;

(ii) the accused was being held in custody;

(iii) the accused had made clear he wished to exercise his right to silence;

(iv) if the accused had been further interviewed by a police investigator he would again have been cautioned in accordance with common law principles.

29. As Mr McDermott has put to me on behalf of the Crown it is, however, well established that the fact a person is in custody awaiting trial will not without more require the exclusion of covertly taped confessional evidence.[1]

32. The principles governing the question of the admissibility of evidence of the taped conversation are elaborated in the recent decision of the Court of Appeal in the matter of R. v. Miroslav Juric[2]. The leading authority is the decision of the High Court in The Queen v. Swaffield and Pavic[3]. As the Court of Appeal states:

"In Swaffield and Pavic the High Court considered two separate cases involving the question whether confessional statements voluntarily made to a witness who, unbeknown to the accused was a police officer, or acting on behalf of the police, should be admitted into evidence. Toohey, Gaudron and Gummow JJ in a joint judgment, and Kirby J separately, held that the admissibility of confessional material turns first on the question of voluntariness, next on exclusion based on considerations of reliability, and finally on an overall discretion taking account of all the circumstances (including the means by which any admission was elicited and whether unfair forensic advantage may be occasioned by admission of the evidence) to determine whether the evidence was admitted or a conviction obtained at an unacceptable price having regard to contemporary community standards. Brennan CJ said that the conduct of law enforcement officers should be considered under the public policy discretion except where that conduct makes the reliability of a confession dubious, in which case the unfairness discretion can be invoked."[4]

36. In the present case it is clear that the statements in issue were voluntary.

39. In my view they should also be regarded as sufficiently reliable to be admissible. Although there was some attack made upon their probative value in argument before me, it is clear that they might be regarded as circumstantial and detailed to a degree which strongly corroborates their reliability in material respects. I instance the following passage which refers to use of a pistol consistent with that which independent ballistic evidence demonstrates was used in the shooting:

"CHIMIRRI: Nuh, I got none of them. I've got little 38 specials. STEWART: 38 specials? CHIMIRRI: Yeah, five shot. Not any more. It's gone now. STEWART: What, the one with the road rage? CHIMIRRI: Yeah. STEWART: Was that a 38? CHIMIRRI: Yeah. I've got another one at home ..."[5]

43. In addition to containing detailed and circumstantial statements by the accused, I further observe that the conversation between the accused and Stewart follows a coherent if meandering, course. In particular, the accused gives Stewart directly responsive answers to a large number of questions in a manner which demonstrates the accused both understood the questions and gave deliberate answers. In these circumstances I am not persuaded the confessional statements relied on are so unreliable that they should be excluded.

46. I have reached this view despite the following matters which were put to me during the course of argument as to my discretion generally:

(a) The prison context in which the relevant conversations occurred and which might lead to exaggeration and falsification (as to which see the judgment of Coldrey J in Roba[6], and the judgment of Kirby J in Swaffield[7]);

(b) The fact that the conversation contained claims by the accused himself that he does not tell the truth but is a "shit-talker" e.g. transcript 298, 324 and 408; and

(c) Indications in the transcript of the recorded conversation that the accused was a drug user who had been using drugs and sought medical assistance during the course of the conversation in issue as a result of the consequences he was suffering from drug use.

52. It follows that the critical consideration in the present case is whether the evidence should be excluded in the discretion of the Court. In Swaffield Toohey, Gaudron and Gummow JJ first analysed the Australian authorities as to the principles generally governing the admissibility of confessional material. They then referred specifically to two Queensland Court of Appeal decisions with respect to secretly recorded conversations and then to the principles adopted in the Canadian cases of Hebert and Broyles. After referring to the historical background which explains why Australian authority has expressed the relevant principles in terms of compulsion to speak, the three members of the Court stated:

"However, the notion of compulsion is not an integral part of the fairness discretion and it plays no part in the policy discretion. In the light of recent decisions of this court, it is no great step to recognise, 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."[8]

"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 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, a 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. Or it will be crossed where police have exploited any special characteristics of the relationship between the suspect and their agent so as to extract a statement which would not otherwise have been made."

60. The freedom of the accused to choose to speak to the police or remain silent will not have been impugned unless there is some eliciting behaviour or exploitation on the part of the police. The current case does not involve any question of exploitation of a special relationship. The authorities suggest that three considerations may be particularly relevant:

(a) whether the conversation was with an agent of the police;

(b) the purpose of that conversation; and

(c) whether the conversation amounted to a manipulated interrogation and the consequential question of whether the confessions were induced or simply facilitated.

66. In the present case there is no doubt that Mr Stewart was an agent of the police.

69. Further it is clear that it was an express purpose of the covert taping that the accused be asked questions with respect to the Ebrahim matter. In this regard there are some parallels with the case of Swaffield. In that case the police undercover officer was involved in an undercover investigation relating to drug offences but was briefed with respect to offences of breaking and entering and unlawfully setting fire to the Leichardt Rowing Club. In the present case the warrant for the listening device was obtained for the purpose of the investigation relating to the death of Katerina Smith, but Stewart was also briefed to discuss both the Piper and Ebrahim incidents. There was some dispute before me as to the nature of this briefing concerning the Ebrahim incident. Mr Stewart denies recollection of it and explains this by saying that he was withdrawing from heroin at the time. Senior Detective Archbold says that he would have told Mr Stewart the name of the road in Lalor in which the incident occurred and that it was a shooting at Mr Ebrahim in his car. It is apparent from the transcript of the covert tape that Mr Stewart was the first to identify in conversation the car involved in the road road incident as a Supra and I am satisfied that Archbold did give Stewart a broad description of the alleged incident for the purposes of briefing. Archbold's evidence to me was as to what he "would have" said. He has no notes and I am not satisfied that the briefing was to the precise effect that he recalled. Archbold's description of the briefing in evidence before me included the following:

"Chimirri at that stage was in for an attempted murder, a shooting in Lalor - I would have told him the road and the incident he would in for, that he would have been charged for an attempted murder whereby there was a shooting - like a road rage shooting in Lalor, and I believe I would have told him the road, but as far as saying there was a Supra and it's alleged that a car was on this side of the road and he's lent here and done all that, it would have defeated the purpose of actually having what would have been the best case scenario is that the defendant explain it to the - the party in the cell, so I was very clear in not actually initiating any specifics about the case."

I observe in relation to the latter part of this evidence that it is clear Archbold knew Stewart did have knowledge of the specifics of the Piper incident to which he was a witness. It follows that it is difficult to conclude Archbold would necessarily have briefed Stewart only generally on the Ebrahim incident as a matter of practice.

74. Despite some doubt as to the extent of detail of the briefing, the underlying purpose of the covert taping was stated by Detective Sergeant Murray at the preliminary hearing to be that of obtaining corroboration of the evidence of witnesses as to the shootings whose evidence might be regarded as unreliable. Murray was asked why it was decided to use the stalking horse method of operating the listening device and said:

"Well to be perfectly candid, the calibre of victims in these matters, these joint matters, were questionable. It's no secret their past was questionable. Their reliability was questionable. And I felt that we needed some corroboration."

78. In evidence before me it was clear that Murray agreed to use Stewart as a stalking horse only after Archbold had undertaken an initial briefing of Stewart and Stewart had agreed to participate. It was also apparent Murray endorsed the arrangement knowing it was less than ideal and that he was aware that at least with respect to Piper it was likely that Stewart would not just seek to facilitate a conversation in a non-specific way. Murray's original intention was just to have the Katerina Smith matter raised. Murray said in evidence before me concerning the Piper and Ebrahim matters:

"After I had given Archbold instructions to speak to Stewart about Katerina Smith he told me that he had broached those subjects with him, having already told me that, I believed that it was probably a good opportunity to have those matters broached for corroboration and they were raised."[9]

82. This is not a case in which the conversation was set up only for the purpose of specific investigation of an unresolved question of fact or for a purpose other than obtaining incriminating statements with respect to the matters in issue. In Dewhirst[10] Coldrey J observed at 407:

"Of course, there will be cases where the use of such officers will be justified. They range from the dramatic R v. Franklin (1998) VSC 217, where the possibility existed that the victim of the alleged offence may have still been alive and there was an urgent need to determine his whereabouts; to R v. Lewis, where information about the identity and whereabouts of a man named 'Mike', asserted to be an accessory after the fact to murder by the accused and who may have been in Surfers Paradise in possession of the murder weapon, was required expeditiously. It is to be noted, however, that in both cases the objective of the further conversation was specific and the provision of further incriminating admissions was ancillary to the primary purpose. That was not the situation in the present case."

86. In R. v. Lewis [2000] VSCA 140; [2000] 1 VR 290 at 312 the Court of Appeal observed:

"This was not a case where the police had deliberately introduced an undercover operative into the cell of the applicant for the purposes of circumventing his right to speak or remain silent, and thereby inducing him to make incriminating statements which he had earlier, in the exercise of his rights, declined to make. If that had been the purpose and effect of the police conduct then the judge's discretion may well have been exercised differently."

90. The relevant purpose of introducing Stewart into the same cell as the accused was, in my view, to circumvent his right to remain silent and induce him to make incriminating statements which he had earlier in the exercise of his rights declined to make.

93. If it is accepted that Stewart was an agent for the police and that an express purpose of the conversation which was set up with the accused was to obtain incriminating confessions, the question remains as to whether the conversation in fact amounted to an interrogation or whether it simply facilitated statements by the accused. I accept Mr McDermott's submission that the question to ask is: has this conversation been so controlled and directed by Mr Stewart that a correct characterisation of what occurred is an interrogation, not merely a conversation? I also accept his further submission that ordinary human discourse includes questions and the mere presence of some questions asked by Stewart in the course of the conversation does not automatically result in the conclusion that the conversation should be characterised as an interrogation. Nevertheless in my view the conversation did amount to an interrogation. It is apparent that Stewart questioned the accused about the circumstances of the alleged shooting and effectively interrogated him. I instance the following questions:

"What, the car was driving past and you fired shots at it?" (p.21) "What, you just fired shots at the car, but you never fuckin---You never hit no one and the bullets missed?" (p.24) "Did they catch you in the other car?" (p.25) "You want to worry about the gun. If they find the gun---" (p.26) " 'Cos they had in the paper the other day---" "About a Supra and it was pulled over on the side of the road--- And the people pretended to be police and tried to take their car. 'Cos when you said road rage I thought it might have been that." (p.40) "Was that you?" (p.41)

97. In addition to the interrogative form of the questions which Stewart directed to the accused, I also note that Stewart deliberately and repeatedly steered the conversation back to the incident involving Ebrahim: see pp.12, 21, 29, 40, 60, 71, 103, 118, 133, 136, 141, 157 and 168.

100. Mr McDermott put to me that some relevant passages were raised in conversation by the accused himself. He instanced the passage quoted at paragraph 12 above relating to the .38 pistol. Nevertheless an examination of this passage demonstrates that although the accused raises the question of .38 pistols, it is Stewart who asks the critical question "What, the one with the road rage?" He follows this up with the question "Was that a 38?" This passage confirms rather than detracts from the proposition that Stewart interrogated the accused.

103. Having regard to all of the above matters I do not accept as Mr McDermott put to me that there was no material guiding of the conversation by Stewart. On the contrary, it is in my view clear both from the directness and content of Stewart's questioning and from the sequence of topics which he raised during the course of the conversation, that he did manipulate the conversation and elicit the material confessions from the accused.[11] The conversation was the functional equivalent of an interrogation.

106. Other matters which might be thought to bear upon the fact of the elicitation of answers and the fairness of the confessional statements made in response include the following:

(a) Stewart deliberately and expressly deceived the accused by stating at a number of points that he was not a "lag" (pp.51, 65, 72, 135 and 184);[12]

(b) The conversation was conducted in the exaggerated language of prisoners heightening the chance of confessions through bravado; and

(c) The recorded conversations betray the fact that the accused had used drugs and appears to have been suffering from the effects of drugs during the course of the conversation. He requested but did not receive medical assistance.

112. In my view none of the matters referred to in the preceding paragraph are determinative of the manner in which I should exercise my discretion but they contribute to the conclusion that the accused's confessions were elicited from him.

115. Insofar as Mr Stewart may have in fact gone further than his brief from the police and relied on underworld rumour to formulate questions, this is not a matter which should be regarded as counting against the accused. In Juric the Court of Appeal observed:

"But the proposition that the subject of a false alibi was first raised by the State agent (Foley) without instructions, so that no fair criticism could be made of the authorities (Enright) until the end of the first conversation, even if that be accepted, was specifically rejected by Iacobucci, J. in Broyles, arguing that the authorities may not take the benefit of the actions of their agent which exceed his instructions."[13]

Having said this I am not in any event persuaded that Mr Stewart did materially exceed his brief.

120. In the present case the accused had been interviewed and declined to answer questions asked of him by the police. He had declined to participate in an identity parade. He had been charged with attempted murder and was in custody. In my view the instigation, manipulation and covert taping of the conversation did impugn the accused's freedom to choose to speak or not speak to the police . In my view the evidence of the tapes should be excluded because it has been obtained "at a price which is unacceptable having regard to prevailing community standards".[14] The freedom in issue is not only recognised by the common law but is one implicit in the scheme of the statutory provisions found in s.464ff of the Crimes Act (Vic.) 1958 which sections set out a regime applicable to the interrogation of suspects in custody by investigating officials. In addition the freedom is one which as Kirby J noted in Swaffield reflects well accepted notions of international law.[15] This is a case which falls within the category identified in Juric by the Court of Appeal in the following terms:

"In applying the overall discretion discussed in Swaffield & Pavic, we conclude, as did Coldrey, J. in Roba, that 'what occurred constituted a reckless disregard of the accused's rights, sufficient, on any balancing exercise to exclude the taped conversation'. The accused's freedom to choose to speak to the police had been seriously impugned, the police had used their agent to elicit material, ... , with consequences which must have been devastating to the defence he sought to run at the trial. Bearing fully in mind the seriousness of the offence with which Juric was charged, and the balancing exercise which is involved in the exercise of this broad discretion, we consider that the Foley tapes amounted to evidence which had been obtained at a price which was unacceptable having regard to prevailing community standards, and that in the exercise of this discretion they should have been excluded. "[16]

124. For the above reasons I would exclude evidence of the covert tape in this matter.

[1] R. v. Miroslav Juric [2002] VSCA 77 at para.52; R. v. Lewis [2000] VSCA 140; [2000] 1 VR 290 at 312

[2] [2002] VSCA 77

[3] [1998] HCA 1; (1997) 192 CLR 159

[6] [2000] VSC 96; (2000) 110 A Crim R 245 at 249

[10] [2001] VSC 172; (2001) 122 A Crim R 403

[12] cf. R v Heaney & Welsh (1998) 4 VR 636 at 647