R v Clarke [2004] VSC 11

"Terry: 'That is not a problem. But to do that he's got to know the full story so he can make sure you pass the polygraph. The DNA side of it, that can disappear, that is not a problem. But I have to talk to the boss eventually obviously but he's going to want to know the full truth. Like I mean if, if you've done it I don't give a rats arse.'

Accused: 'No, I didn't, no I didn't.'

Terry: 'I Just want, I just want.'

Accused: 'Yeah.'

Terry: 'We just want it cleared up.'

Accused: 'Yep.'

Terry: 'That is not a problem, we can make things go away.'

Accused: 'Yeah.'

Terry: 'But we've got to know the full story so that we can then put wheels into motion to get things changed.'

Accused: 'Yeah oh.'

Terry: 'Now if you did a polygraph.'

Accused: 'Mm.'

Terry: 'What's that going to?'

Accused: 'I don't know. I've never had a polygraph.'

Terry: 'Yeah, but.'

Accused: 'I don't know. I'm, I'm, I'm, I've got'

Terry: 'Yeah.'

Accused: 'a bad cold, I don't know what that does to readings.'

Terry: 'You got a what?'

Accused: "As you know I've got a bad cold."

Terry: "Oh no, no, that doesn't it's, no what I'm saying is have you got anything to hide?'

Accused: 'No. No not at all.'

Terry: 'Because if you have we can make it go away but we've got to know the full story that's all.'

Accused: 'No, no, I got nothing to hide.'

Terry: 'You definitely didn't do it.'

Accused: 'I definitely didn't do it.'

Terry: 'Right. Okay well you don't do a polygraph, you don't give a DNA sample at the moment. You don't do anything tomorrow until I ring you.'

Accused: 'Mm.'

Terry: 'Alright then? I'll make some phone calls tonight.'"

16 The accused telephoned Mr Iddles the next day, 4 June 2002 at about 1.00 pm. The accused told Iddles in that conversation that he did not kill the deceased. Iddles told the accused he wished to speak to him and that he would be seeking a DNA swab from the accused and that he would ask the accused to agree to submit to a polygraph test. The accused told Iddles that his mother-in-law had died recently and that he needed to attend her funeral and that he would call again to arrange a suitable time to attend upon the Homicide Squad Office. Iddles agreed to that course.

17 Later that afternoon the accused again met with Terry. Discussion took place about the death of the deceased and the accused once again denied any involvement. Terry told the accused that Mark, "the boss" was coming down "later on in the week" and would have "a chat" with the accused. On numerous occasions throughout this conversation Terry exhorted the accused when he spoke to Mark to tell Mark the truth. The accused was told "the boss" could fix the "lie detector" and that the DNA sample could be "changed". Terry said:

"All they have to do is get our guy to change the sample. They are not going to know it is yours or whose it is. They change the sample and it comes back, no not him."

Terry said however that this could only be done only if the accused was "110%" truthful with the boss. Terry told the accused the boss would not "leave him." The only reason that he would "cast you aside (is) if you have not been 100% truthful", said Terry to the accused.

18 Two days later on Thursday, 6 June and at approximately 3.00 pm Terry met the accused in Collins Street and took him to a city hotel to meet "the boss", Mark. Once again Terry on numerous occasions exhorted the accused to tell Mark the truth, to be "completely honest with him". He was told "But the one thing which will bring you undone here is if you tell one lie to the boss, he has obviously got a file ... he knows everything and he will be asking you ... If he catches you out on one lie, one thing not right, he'll just cut you loose and ... you will never see us ... you will never see him, and you'll be back trying to get a few dollars together". The accused was told on several occasions that it did not matter what had happened in his past, as long as he told Mark the truth.

19 The accused was then taken to the foyer of the hotel where he met another purported member of the organisation already known to him as Donny and a person called Alex. He was then taken by lift to the hotel suite to meet Mark. As he entered the room he was purportedly searched with an electronic instrument.

The Admissions Obtained by Covert Operatives

20 The discussion between the accused and Mark took place with no other person present. The discussion however was filmed by a remote hidden video camera. Both Detective Senior Sergeant Iddles and Senior Detective Day of the Homicide Squad listened at a remote location to the discussion that took place. It commenced at approximately 3.30 pm on the afternoon of 6 June and concluded at approximately 6.10 pm in the evening.

21 Early in the conversation Mark said to the accused "You've seen some things. Now I'm not worried about that like, really. From my point of view the way that things have been done, you could walk out of here and go straight to the Jacks. It wouldn't matter to me. I'm not going to be here for very long ... You don't know how to find any of us, you don't know my name. You don't know the boys' proper names ... You don't know where they live ... The phone numbers I can change soon as I leave. This room's booked in a bullshit name so you're not a threat to me alright". He said "You can walk out of here today and go on with the rest of your life doing whatever it was that you were doing before Terry came along". He said "And as I said it will be no skin off my nose, I'm not worried about you, you're no threat. If you want to get up now and walk out and go back to whatever your life was before, that's great. If you want to be part of what we do and you want to make a lot of money and you want to stay in places like this, then some of the other things that you've seen and you know, we've only touched the tip of the iceberg with you because I'm still keeping you at arm's length with what we do. Then great, there probably is a spot for you but again this is kind of like a job interview".

22 Mark then had a discussion with the accused about his past and then inquired "And what's happened on Sunday"? The accused man then informed him about reading an article in the newspaper and of the visit from Iddles. The accused told Mark that he did not kill the deceased. In response to this statement from the accused the following discussion took place:

"Mark: 'To be completely honest if you done that sort of thing it's a better thing for me because it shows that you're not one of these blokes that just gobs off about stuff he really doesn't have the ability to do. It, it means that you've actually been there and done that like you're somebody who just talks about it. Now, I pay people a lot of money to do things like this for me to check things out, and it's not that difficult cause these blokes how they work is they want to put everything on paper. And it's all on computers now and it's not that difficult to get things, copies of things and things out. Now, getting your, your ah, prior convictions easy very, very easy like anybody, you could go and get that. It just costs 30 bucks or whatever at this fucking branch and they go and give 'em to you.'

Accused: 'Mm.'

Mark: 'I need you to understand something. I need you to understand where I'm coming from.'

Accused: 'Mmm.'

Mark: 'You at the moment are red, red, fuckin' red hot. Right?'

Accused: 'Mmm.'

Mark: 'You couldn't have more fuckin' police heat on you if you tried. Now, this bloke, and I'll talk to you about him shortly, he's got you fuckin' well and truly lined up for this thing with the kid. Now, these sort of people, they don't ever give up. They'll just keep on opening this case and looking at it, and opening it and looking at it. About the only time they'll give up is when the person they're looking at dies. Or when, ah, someone else comes along and sticks his hand up. Or when their case falls apart because the fuckin' exhibits go missing or whatever. And these things happen. I can't have my whole fuckin' house falling down around me because you're red hot. I couldn't think of a worse mob to be looking at you than this, this fuckin' group. It's not your fuckin hometown bobbies from the local detective station.'

Accused: 'Mm.'

Mark: 'You know. This is all they do these blokes. It's not a great big problem as I said to you at the outset because things can be fixed. That, that problem can be made to go away. But what I'm telling you here and now is you can deny this 'til the cows come home to them.'

Accused: 'Mm, mm.'

Mark: 'It's not going to make any difference. They would probably expect that you're going to deny it. It just means they keep looking at ya trying to uncover things until they eventually get enough of what they got. Or, or what they, ya know, enough of what they want.'"

23 Discussion then took place as to what steps could be taken by Mark in relation to any polygraph test and in relation to DNA. Mark said that he could fix these things. He said:

"Yeah. Now, Terry's obviously told me a few things that he told me over time and I'm not ah really that that concerned about (what) you have or haven't said to Terry. ... All my mail is that you've done this fuckin' thing with the kid. Now I don't really give a shit about that ... If things are difficult for them we either fix it, or, or we send them away for a little while. ... I can understand why you wouldn't want to be telling anybody that you're involved in any of those things ... Some blokes see that as a badge of honour and they'll brag about it. Well personally to me that's sheer stupidity, you brag about these things, you're only going to get yourself into trouble".

The following conversation then took place.

"Mark: 'See, I mean there's all sorts of possibilities here. But I can't, I, I, look bottom line is I can't help ya unless I know what's happened. That's the bottom line. Now, this thing's 20 years old. Yeah?'

Accused: 'Mmm, yep 20years old."

Mark: 'It's not the sort of thing, I, I would think you're going to want to talk about after 20 years of doing the right thing, and I'm hoping you did the right thing and kept your mouth shut.'

Accused: 'I have kept my mouth shut.'

Mark: 'Well but if you want if fixed there's got to be a time where you got to say okay well this is what I want, I want it taken care of.'

Accused: 'Well I'd like it to be taken care of because Mark I didn't do the bastard of a thing. And I.'

Mark: 'Well, I ... (inaudible) ...'

Accused: 'I'm, being honest.'

Mark: 'I gotta say to you. I'm saying to you I don't believe you. Right and I'm saying to you, this is the one and only chance you've got, one and only chance I'm going to put up, I going to put up with any bullshit. I'll speak straight to you.'

Accused: 'Yeh.'

Mark: 'Right. You kept a secret for 20 years I think, and I completely understand why you wouldn't want to talk about it. The fact of the matter is everything I've been told and things I've read, and you can have a look at this, says to me you fuckin' did that thing, right. Now it could have been a train robbery, it could have been a fuckin' a one of a million things I suppose. It happens that it's a kid that gets killed. Well so what? Shit happens. For all I know, maybe, ya know, maybe it was an accident, I don't know. It's it's not something that I've had to have a big think about cause I'm not really concerned about what it is. All I'm concerned is what the result is going to be on you. Do you, you know what I'm saying?'

Accused: 'Mm, yeah, yeah.'

Mark: 'I couldn't care less whether you killed ten kids. It doesn't make any difference to me. You've already gone to gaol for killing people that's, that just shows me that you can do it, that's all. I said to you that might, might, let's be honest it's not might, that is a useful thing, as long as you can get away with it. Now there's one you didn't get away with, but you've been there and you've done your time for that, that's over and done with. This one is not over and done with it's fuckin' far from over and done with. You have a look at that.'"

24 When Mark, at the conclusion of the above part of the discussion, asked the accused to "Have a look at that", he was referring to a document which had as its letterhead the Victoria Police badge and the address of the Homicide Squad. The document bore the date 15 May 2002. It purported to be a "progress report re investigation" of the accused. It purported to be signed by Detective Senior Sergeant Iddles. That document referred to "recent developments" in the investigation and to "ongoing inquiries". It contained a conclusion that the accused was the only suspect identified by investigators for the crime. It stated that "The investigation being conducted ... is progressing apace and material has been developed which strongly implicates" the accused in the murder. This document was referred to in evidence before me as a "prop". Clearly it was prepared for the purposes of the discussion between Mark and the accused. The accused man read the document and the following conversation took place:

"Mark: 'What do you want to do about it? Because I'm telling ya this is not going to go away. You can deny it 'till the cows come home. I can't have you hanging around with us'."

"Shit ...yeah fuck, fuckin 20 years I've lived with this ... Mark, it was an accident that she died".

25 The accused then proceeded to say that he had consumed a considerable amount of alcohol that night, that he was "pissed". He said:

"I know I had some f ..., I played with Bonnie. I think she wanted to go scream or something and I covered her head. And I probably had a knife with me I don't know. I was that fuckin' drunk".

26 He said that he had come around the back lane over the fence, the back door was unlocked and he had entered through the kitchen and into Bonnie's room. He said that the light in the deceased's room was on and a small dog was on the bunk behind the door. He described the room and said that he had pushed the door handle a little bit and might have touched it. He said that he "fingered" the deceased. She tried to scream and he covered her head with a pillow. He said the deceased probably died from suffocation. She had been asleep but woke up when he was "fingering her". He said police may have got fingerprints from the back door as he pushed it a little to get through. He said no one could connect him with the knife which was a "Staysharp" knife in a holder about eight inches long. He said he could not remember where he got the knife from and he could have left the cover there. He said there would not be any DNA there unless he left clothes behind or saliva from "fingering" her as he licked his fingers first. He said the deceased was wearing a pair of pyjamas and he pulled the pyjama pants down. He said he stabbed her in the chest with the knife and blood didn't spurt out. He said he panicked and pulled the knife out then left. He said he pulled the sheets up to cover her but not as far as her face and he pulled up her pyjama bottoms.

The Record of Interview

27 At the conclusion of the discussion with Mark, Mark said he would "Make a few calls". Shortly after the discussion with Mark the accused man was driven by Terry to the St Kilda Road Police Station, the premises of the Homicide Squad. Terry dropped him off there and he was met immediately by Detective Senior Sergeant Iddles and Detective Senior Constable Day. They arrested him at 7.16 pm when he was cautioned and advised of his rights and then conveyed to an interview room where he asked Iddles if he could speak to his defacto wife by telephone. These matters and the discussion between the accused and his defacto wife and Iddles leading up to this were videotaped.

28 At 7.45 pm Detective Senior Constable Day commenced the record of interview with the accused man. The accused told the police that "I was drunk as a skunk. Don't ask me what I was drinking, but I was drunk. Extraordinarily drunk and from God knows why, I went round to that place, and whatever happened, it happened. And when I come to my senses, I realised that Bonnie was deceased". He said in the course of the record of interview "I think I might have had a knife with me". He said further in relation to the knife "I think it was one of those little - one of those new fingle fangal things that you - every time you withdraw that, what do they bloody call it? Try to think of its name. It's self sharpening, or whatever they call it". He said that when he entered the room there was a dog on a bunk.

29 In the course of the interview (at question 97) the accused man was asked whether he recalled earlier in the evening having had a conversation with a person by the name of Mark. No mention of the meeting with Mark had been made by either the accused or police prior to that time. The accused agreed that he had had such a conversation he then said "I know where I am now, so ... don't need to go any further. Just get it over and done with alright".

30 He then proceeded to make relatively detailed admissions about the circumstances in which the deceased met her death. In particular, he described the layout of the deceased's bedroom indicating the location of the bed. He stated that the window was closed, the blinds down and the white dog was asleep on the top bunk in the room. He said that he approached the bed of the deceased, pulled the doona back and observed her lying on her back. He pulled down the pyjama bottoms of the deceased and "played with Bonnie". The deceased commenced to wake from her sleep and struggled. The accused said he placed a pillow over the face of the deceased with one hand and held down her struggling arm with the other. A short time later the deceased ceased struggling and she did not move again. The accused stated that he then panicked and stabbed the deceased to the left side of her body in the lower chest flank area. He cleaned the scene with a cloth or towel to remove any evidence of his presence and he pulled the pyjama bottoms of the deceased back up, pulled the doona up to the neck of the deceased and took flight back out through the rear sliding door. He said that he recalled having been spoken to by the Homicide Squad soon after the incident but that he denied any involvement as he was scared to admit the matter at the time.

The Submissions of Counsel for the Accused

31 The accused, through his counsel, Mr Morrissey, submits that the tape recordings of conversations had with the Covert Operatives ought to be excluded from admission into evidence in their entirety. He submits that the admissions made to Mark were not voluntary in that they were induced. Mr Morrissey submits that Mark was a person in authority but that in any event the only inference is that the accused's will was overborne by Mark.

32 Furthermore, and in the alternative, Mr Morrissey submits that even if the admissions were voluntary they should be excluded on the basis of unreliability and in any event the Court ought to exclude the admissions as contrary to the general discretion. Mr Morrissey submits that the record of interview conducted immediately following the admissions made to Covert Operative Mark ought also to be excluded on the basis that the interview was not voluntary, the admissions were highly unreliable and were so tainted by the covert operation as to render them inadmissible. In any event, he submits the admissions ought not to be admitted pursuant to the general discretion to, inter alia, exclude admissions obtained by improper or unfair means.

Confessional Statements

33 The leading authority on the question of admissibility of confessional statements made by an accused person to a person who, unbeknown to the accused is a police officer is R v Swaffield and Pavic.[1] That decision establishes that the admissibility of confessional material turns first on the question of voluntariness, next upon issues of reliability, and finally on an overall discretion taking into account all the circumstances, including the means by which any admission was elicited and whether unfair forensic advantage may be obtained by the prosecution by admission of the evidence.[2]

34 The onus lies upon the prosecution to demonstrate on the balance of probabilities that confessional statements were voluntary.

35 In McDermott v R[3] Dixon J said in reference to the holding out of inducements by a person in authority:

"At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made: per Cave J R v Thompson [1893] 2 QB 12 at 17. The expression 'person in authority' includes officers of police and the like, the prosecutor, and others concerned in preferring the charge. An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority."

Persons in Authority

36 Mr Morrissey on behalf of the accused submits that in the circumstances of this case the admissions were induced by persons in authority. He submits that the inducements to make the admissions were that the accused would derive the advantages of membership of the purported criminal organisation, which included friendship and support, and furthermore the opportunity to be paid substantial sums of money. These are the inducements upon which Mr Morrissey relies against a background, he submits, whereby the accused man would suffer risks if he withdrew from his discussions with Mark. He submits that in the particular circumstances of this case, the covert operative, Mark was a person in authority or at the very least gave the appearance of being cloaked with authority. He submits that the fact that Mark was in fact a police officer, who represented himself to be part of a corrupt organisation, which had contacts and dealings with corrupt police are matters which are of significance. Furthermore, the fact that Mark represented himself as having the capacity to influence the further police investigation of the accused is, Mr Morrissey submits, sufficient to establish that the inducements were made by a person in authority.

37 The prosecution on the other hand contends that Mark was not a person in authority in the sense contemplated by the cases which have been decided previously in relation to this issue.

38 In R v Tofilau[4], Osborn J in dealing with circumstances which bear some similarity to the factual matters before me, considered carefully the authorities in relation to the question of whether or not a confessional statement will be regarded as proceeded by an inducement held out by a person in authority if the maker of the statement neither knew nor believed that the person holding out the inducement was a person in authority. His Honour analysed Australian and Canadian authority in relation to confessional admissions to persons in authority.[5] Osborn J concluded, in the circumstances of Tofilau, that inducements similar to those to those which were offered in the circumstances of the case under consideration by me were not offered by persons in authority but were offered by persons who the accused believed were "criminals purporting to have connections with, but in fact to be outside authority".

39 In my respectful view Osborn J was correct in his analysis in Tofilau that any inducement held out by persons the accused believed to be criminals, was not an inducement made by a person in authority, because those persons were not regarded as such by the accused.

40 In my view in the circumstances of the case before me Mark cannot be said to be a person in authority. A person in authority is a person who appears to the accused to be a person who has some authority or control over him or over the arrest or in relation to the interviewing or the charging of the accused. As Wood J said in R v Dixon[6] a person with authority is a person "who otherwise is seen by the accused by virtue of his position, as capable of influencing the course of the prosecution, or the manner in which he is treated in respect of it". The accused man did not see Mark in this manner. He saw him as a criminal who might be able to interfere in a criminal way with the investigation of the case against the accused.

Voluntariness

41 However, notwithstanding that admissions made by the accused cannot be said to have been induced by a person in authority, the prosecution must nevertheless establish that the admissions were on the balance of probability, voluntary. As Dixon J said in R v McDermott [7] voluntariness_:_

" ... means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary".

42 Mr Morrissey for the accused submits that the admissions made by the accused to Mark were involuntary. He submits that despite "inordinate efforts to elicit admissions" made by Terry and Mark, the accused man was steadfast in his denials of involvement in the death of the child until he was presented with the so-called "prop", the allegedly genuine police report relating to the progress of the investigation and which Mark purported to have obtained by criminal means from corrupt police. Mr Morrissey submits that the accused was offered the inducements of money, membership of the criminal organisation and freedom from further police suspicion. These inducements he submits were offered in a context of persistent importunity by the undercover police. He submits that the accused was under pressure to make admissions as to his involvement in the death of the deceased child by reason of these inducements. He submits that the accused believed he was dealing with a gang which was prepared to use violence to achieve its ends. Indeed, one scenario prepared by covert operatives to convince the accused of the criminal nature of the organisation involved the purported, but not factual, bashing of a woman.

43 The circumstances of three alleged gang members waiting downstairs at the hotel whilst Mark spoke to the accused had the effect it is submitted, that the accused had cause to believe violence may occur, and in any event so Mr Morrissey submits, made the environment at the hotel "akin to custody". Mr Morrissey submits that the admissions made by the accused should be seen in the context of the "policy" adopted by Terry and Mark of discouraging the accused from speaking immediately to the legitimate investigator (Mr Iddles) or of submitting to the DNA test proposed by Mr Iddles.

44 He submits that the relationship between the accused and Mark was most unequal and that the nature of the questioning of him by Mark was such that it rendered the making of a false confession be the only viable option for the accused. He submits that the repetitive instruction "to tell the truth" is not a matter of significance because it was made clear to the accused that continued denial of the offence would itself cause detriment to him. He submits that there is no explanation for the admissions occurring when they did in the course of the discussion with Mark other than that they were caused by the inducements. He submits in this regard that the matter is quite different from the situation facing the accused persons in Tofilau and in R v Ghiller.[8]

The Evidence of the Accused

45 The accused gave evidence before me. He said that during his discussion with Mark he did not consider himself free to leave. In answer to a question from Mr Morrissey as to whether he recalled he had been told by Mark that he was free to leave on more that one occasion, he said, "Yes, but it was in his tone, that he said I was free to leave if I wanted to, but it's in his tone that registered, well, if you leave you might just get a crop, a bit of a beating."[9] He was asked by Mr Morrissey what he thought would happen if he did leave and he said, "I probably may have made it to the lift or made it downstairs but I would have been greeted, met by either Donny and the rest of the boys."

46 I have listened to and watched the video tape of the discussion between the accused and Mark with care. I could detect nothing in the tone of Mark which suggested any physical or verbal threat. Rather, it appears to me that Mark made it clear that the accused could leave at any time and it would be a matter of no concern to Mark. Furthermore, tapes of discussions had with Terry leading up to the meeting with Mark reveal no suggestion of threat; rather, they reveal a cordial relationship between the two persons. Indeed, the accused said in evidence that Terry "seemed a very open and honest bloke".[10] Later in cross-examination, the accused said,[11] "I had taken a liking to Terry and I took a liking to Donny. They were up front as far as I was concerned and they were great to ... be able to sit down and talk with."

47 In relation to the benefits that he perceived he would receive if he joined the organisation, he said,[12] "Large sums of money and honesty, loyalty and truth as a group, a gang." He said he was " ... just greedy for money at the time, purely and simply greedy for money."[13] However, as much as these matters were no doubt attractive benefits of joining the gang from the viewpoint of the accused, I do not consider that they can be regarded seriously as promises which induced him to make a false confession of an offence of the seriousness now before the court.

48 The accused was asked by Mr Morrissey why he made an admission to Mark as being involved in the death of the child. His answer was, "I think firstly, I think firstly was that when he presented me with this document marked confidential and he said, 'Look, you'd better read it' and I sat there and I read it and at the same time I am reading it, I am going, what's the hell going on here, what's happening, they interviewed me about this 22 years ago, what's going on. Um, I just - my mind started to go fuzzy and crazy. I had no idea why this was happening. I didn't think that there was anything wrong with me. It just shows that someone has dug up and they are trying to fix me on a murder blue that I didn't commit. I can't explain it, the way my mind was working at that time."

49 There is no suggestion made by the accused in this statement that he felt pressure or coercion from Mark. Certainly he expressed some confusion. Certainly the concern that the police might have dug up some evidence was expressed. Certainly the accused expressed concern that the police were "trying to fix me up on a murder blue that I didn't commit". However, and particularly after viewing and listening to the video tape of the conversation had with Mark, and observing the demeanour and the manner in which the accused commenced to make the admissions, when he said, "Fucking 20 years ago, I've lived with this. Mark, it was an accident that she died", I do not consider that the admission was involuntary. At all times Mark gave the accused the opportunity to walk away and say nothing. At all times he was told that he was to tell the truth. He was offered a choice as to whether he spoke about the past. It is, of course, true that the accused was misled by Mark as to the true identity of those with whom he was speaking. It is also true, in my view, that the so-called "prop" which was provided to the accused shortly before the admissions commenced overstated the true extent of progress of police investigation. It is true that the accused was tricked into making the admissions. But in the end result, and in all the circumstances, the accused had a choice as to whether he spoke up or did not. He was offered the choice of not proceeding with his endeavours to join the criminal organisation or of doing so and telling Mark the truth. He chose the latter course.

50 Indeed, the evidence of the accused given before me was that he had that choice. In the course of cross-examination the following passage appears at p.399 in reference to the discussion which took place between Mark and the accused in the period minutes before the prop was produced.

51 Mr Leckie asked:

"At this particular point we have got to in the discussion with Mark he's now told you some of the things he believes the police might have?---Yeah, that's what he's saying, yes.

He's informing you about them?---He wasn't informing, he was saying, 'This is what they've got', yeah.

You must have been a bit worried at that stage, mustn't you?---No, I - as I said, I had nothing to fear - - -

All right?--- - - - DNA. I was curious about the lie detector but I had nothing to fear from the DNA.

And again you were told you could have walked away, after that point you could have walked away, couldn't you?---I could have, yes, but I wanted to stay.

So you had the choice?---It was my choice.

As he said to you over the page, 777, middle of the page, talking about getting rid of the problem, it just takes money, he says, 'Now this is entirely up to you but as I said I'm doing you the courtesy of sitting here' and so forth; could have walked away then?---I had the choice to walk away if I wanted to.

Go to 778, the top of the page, again he gives you the choice, see the top of the page, he says, 'You can get up here and walk out of here, it doesn't make any difference to me'?---Yes, I still - as I have said, it was my choice to stay.

Yes. So at this stage you are still weighing up the options in your mind, is that right, making your own decisions, making up your own mind as to what you want to do?---Yes, I'm trying to work out now what's going on in this area and what's happening over here. I'm thinking - - -

Yes. So you are playing him to a degree, are you?---I am trying to play, I'm trying to work out which way am I really supposed to go and if I go this way what will be the repercussions from that, if I go this way, will I be left alone or if I just stay here, I'll take me chances because I want that money.

I see?---It was the, it was just a greed, the pure fact of greed for money that was holding me back, holding me there.

Well, look at the bottom of 778, you will see again he says, 'The decision at the end of the day is yours'; see that?---Yes.

You say, 'yeah' or go, 'M'mm.' 'Entirely yours, all right, I am not going to ask you or force you to ... (reads) ... to do anything'; see that?---Yes.

Leaving it clearly up to you, isn't he?---He is.

And you understood that?---Yes.

And that was the position?---Yes.

You were weighing it up?---I was weighing it all up.

I want to take you to 781. I can tell you, if it's of assistance to you, so you don't have to read it all, but the next part of the conversation was about the polygraph and how you might go with the polygraph. I don't want to ask you about that. And also how the polygraph can be beaten; he told you all about that, didn't he?---He did.

And you were interested in that?---It certainly had my fascinations.

Yes. Now, again, at 780 - have you got 780 there, you will see again he reiterates, 'Whatever is said here today is between you and me'; see that?---Yes.

It is quite clear, isn't it, that at the beginning and at this stage he's saying to you, 'I'm not going to say anything outside this room about what happens between you and me and I expect the same of you'?

---That's correct.

And you would take that seriously because of the trust, loyalty and honesty, wouldn't you?---Yes, I would

And wouldn't tell anybody about what you had been saying in this room?---That's correct.

Particularly if you didn't trust them or weren't sure about them?

---Especially if I wasn't sure about them I would not say anything'."

52 This passage appears to me to make it clear that, immediately before the admissions concerned (10 pages of transcript later), the accused man was stating that he was continuing his discussion with Mark by choice, and that he was weighing up his choices. In the end he made a choice of his own free will to tell Mark of what had occurred because he trusted him. I do not consider, having listened particularly to the tapes and observed the video tape, that he did so in circumstances where his will was overborne.

Section 149 Evidence Act

53 The prosecution contends that even in the event that I come to the view that the admissions made by the accused were made in circumstances where a threat or promise had been made, I should admit them nevertheless under s.149 of the Evidence Act. I have concluded that the confessional statement in the present case was not induced by threats or promises made or given by a person in authority and thus that section is inapplicable.

Reliability

54 However, that is not the end of the matter. I turn to the issue of reliability. Mr Morrissey contends that even if the admissions made by the accused can be said to be voluntary they should be excluded on the grounds of unreliability. It is contended that the accused had much to gain by making admissions, whether the admissions were true or false. He had the opportunity to join the criminal organisation with the financial advantages this would bring and which would have been denied him had he continued to deny his involvement with the death of the deceased. In particular, Mr Morrissey contends that the accused did not admit to any matter of which only the person responsible for the death of the child would know.

55 There are some parts of the admissions made by the accused which do not match the crime scene and the forensic evidence in every particular. For instance, the accused told Mark and indeed investigating police, Day and Iddles, that the deceased had pyjamas on when he left. The pyjamas had been pulled up by him. Her body was found without pyjamas.

56 There is, Mr Morrissey submits, and correctly so, no corroboration of the admissions. In particular, Mr Morrissey submits that the disbelief expressed by Mark in the course of their conversations was as much likely to cause the accused to make an untrue, as opposed to a true, confession. In particular, Mr Morrissey submits that the discussion had with Mark demonstrates that the accused had an interest in telling Mark what he wanted to hear, rather than the truth, and that he had an interest in making the statements he did regardless of their truth or falsity.

57 There is weight in these submissions, in my view. There is at least the objective possibility that the accused man considered that the police may charge him with a crime which he did not commit, and the possibility that he may have seen that the best way out for him was to confess falsely so as to secure the assistance of Mark in the criminal destruction of or interference in DNA sampling, in particular.

58 This, of course, is not the explanation given by the accused man in his evidence before me. Rather, the accused insisted that he made a false confession principally because he felt under some threat and, furthermore, because he was greedy for money. Indeed, as pointed out above, in his evidence before me he said that he had nothing to fear from the DNA. He said he was "curious about the lie detector" but that he had nothing to fear from the DNA. At one stage in the course of cross-examination, he conceded that "in hindsight" one of the benefits of joining the criminal organisation was that "they could make the problem with the police go away" but certainly he was not emphasising that that was a significant matter in relation to his decision to give his false explanation and false admissions. Indeed, at one stage in his cross-examination, the accused contended that at the time he commenced to make his admissions (when he said "it was an accident") he was not talking about the deceased child but, rather, the victim of his subsequent conviction for manslaughter

59 As to the issue of unreliability, the learned prosecutor, Mr Leckie, of Senior Counsel, submits that the whole emphasis of the undercover operation was to encourage the accused to tell the truth. It is submitted by him that the accused's account of the assault on the child matches significantly the known facts surrounding her death. In particular, he asserts that the description of entry into the rear of the property and into the house, the fact of the dog not barking, the fact that suffocation and stabbing to the left side were injuries sustained, the fact that she was digitally penetrated, the fact that there was no ejaculate, the cleaning up of the scene, the covering of the child to the neck, the fact, as stated by the accused in his record of interview, that the child was lying on her back, and the lack of blood at the scene, are matters of great relevance to the issue of reliability.

60 The prosecution relies upon the manner in which the accused told Mark that talking to him had "lifted the burden". The prosecution relies upon the fact that the accused man was most particular about some matters. For instance, he insisted in the record of interview that he knew of no reason why Bonnie would have bruising around her neck. He said he left her pyjamas on her, whereas it was put to him that they had been removed. Mr Leckie submits in terms of reliability that such specific responses are unlikely if a false story is being made up as is now contended by the accused.

61 The accused man in giving evidence before me said that the detail of what had happened to the deceased was not information he had received from the radio, the TV, the inquest or any report of the inquest. He said he had received the information from discussions with police who had spoken to him at the time of the original investigation and from other sources which he did not wish to reveal.

62 In the end result, it does not seem to me that it is either appropriate or necessary for me to make findings as to the truth or otherwise of the explanations of the accused for the detail in which he stated his admissions to Mark and to Iddles and Day. The question is whether the account given is such that the jury would be entitled to consider, on the evidence before it, that it is reliable.

63 There are a number of authorities which deal with the issue of reliability of confessions made by persons suffering from psychiatric disorders; R v Sinclair[14], R v Morris[15], R v Starecki[16] and R v Parker[17] are such cases. In R v Pfitzner[18] the Chief Justice of South Australia gave consideration to the test in relation to unreliability of a confession given by a person suffering from a psychiatric disorder. He concluded that the test in those circumstances should be based upon "an affirmative satisfaction that the admissions are inherently unreliable as distinct from possibly unreliable."

64 Whilst it is true that those authorities relate to confessions given in different circumstances (i.e. where there is a psychiatric disorder), it seems to me that a similar approach should be adopted in relation to the question of unreliability now raised before me. I have looked carefully at and listened to the video-tape of both the discussion had by the accused with Mark and the admissions made to Iddles and Day. Whilst it is true, as Mr Morrissey submits, that there is no corroboration and that several matters raised by the accused are inconsistent with crime scene findings, in the end result I am satisfied that the admissions are not inherently unreliable and that it would be open in all the circumstances for a jury to consider that the manner in which the admissions are shown to have been made on the video-tapes is such that they are reliable.

65 In my view, in the absence of a conclusion by me that the admissions are inherently unreliable, it is appropriate that the jury consider what weight should be given to the admissions rather than having me make a decision to exclude the evidence because of the possibility of unreliability. Accordingly, it does not appear to me to be appropriate to exclude the admissions made on this basis.

The General Discretion

66 Mr Morrissey, however, further contends that in any event the admissions ought to be excluded pursuant to the overall discretion of the court to exclude evidence which involves such unfairness to the accused, or is otherwise so contrary to public policy, that the evidence should be excluded notwithstanding its high probative value.

67 Mr Morrissey puts this issue in three ways. First, he submits that the accused was denied the opportunity to exercise his rights. Secondly, he submits that the accused suffers, to quote Mr Morrissey "a massive forensic disadvantage" in conducting his defence by reason of the manner in which the admissions were obtained from him. Thirdly, he submits that the particular nature of this covert operation is such that the evidence of the admissions obtained by way of the operation ought to be rejected on the grounds of public policy.

68 Mr Morrissey submits that by acting in the way they did, the police covert operatives denied the accused man the opportunity to exercise any of the legal rights he enjoys under the Crimes Act 1958. In particular, he submits that Terry discouraged the accused from responding to Mr Iddle's request for a DNA sample and further that Terry encouraged him to rely upon him, Terry, and upon "the boss" for advice about the police investigation. He submits that Mark was in a dominant relationship to the accused in that he represented to the accused that he was the boss of a highly organised and dangerous organisation, in that he was a prospective employer conducting a job interview in a controlled place, and in that he purported to be connected to corrupt police and officials. He submits that in the course of the discussion with Mark the accused was provided with the prop, the so-called progress report into the state of investigations, which Mr Morrissey submits contained "material falsehoods". He submits that the discussion with Mark involved hectoring, bullying and overbearing behaviour in circumstances where the accused had not been given the opportunity to be interviewed by police. He submits that at the time of the discussion with Mark the accused was a "gold plated A grade suspect". Mr Morrissey submits that the conduct of the police was deliberate and that it was "designed to side-step the possibility of the accused exercising his rights".

69 Mr Leckie submits that although the accused man was a suspect, he had not been charged and he was not in custody. He submits that before Mark spoke to the accused there was no sound basis to charge him or to bring him in for questioning. He rejects the suggestion that what the police did was an endeavour to avoid the protections afforded by s.464 of the Crimes Act.

70 I do not accept the submission made by Mr Morrissey that the accused was in a situation "akin to custody" at the time of meeting Mark or that he subjectively perceived himself to be so, notwithstanding his evidence to that effect. As stated above, he had what he believed was a good friendship with Terry and Donny.

71 The demeanour of the accused man as revealed by the video tape throughout the discussions with Mark until the point at which the admissions were made, reveals no distress on his part or any suggestion that he considered himself under threat or coercion. Rather, the accused man appeared to me to be promoting himself as a suitable and useful prospective member of the organisation.

72 However, that said, I accept the submission made by Mr Morrissey that Mark hectored and harangued the accused to a significant degree. In particular, on several occasions Mark expressed personal disbelief in the repeated statements of the accused that he was not responsible for the death of the child. Does that mean that the subsequent admission was unfairly or improperly elicited in a manner contrary to public policy?

73 In Swaffield and Pavic Kirby, J elaborated upon these concepts as follows:[19]

"Subterfuge, ruses and tricks may be lawfully employed by police acting in the public interest. There is nothing improper in these tactics where they were lawfully deployed in the endeavour to investigate crime so as to bring the guilty to justice. Nor is there 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 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, the 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."

74 It appears to me that it is inarguable that the admissions of the accused were elicited from him in an interrogative fashion and in a fashion which would be unacceptable in circumstances of a formal record of interview. They were indeed elicited in circumstances of exhortation by Terry and Mark to tell the truth. They were elicited by Mark expressing disbelief on a number of occasions in the accused's statements that he did not kill the deceased. They were elicited by Mark acting under the pretence that he had to know the full and true circumstances of what had occurred in order to take steps to assist the accused in dealing with the police. They were also elicited by Mark producing the prop, the progress report which alleged that the police investigation was progressing apace. Indeed, in my view, it was the production of the prop which appears to me, at least, to have played the most significant part in the elicitation of the admissions. For that reason it is necessary to make some findings about the nature of the prop in the consideration of impropriety or otherwise.

75 The prop was prepared for the sole purpose of the discussion between Mark and the accused. It looked like a photocopy of a genuine document with a Victoria Police letterhead and markings of "Confidential", "By Hand Only" and "Processed" stamped upon it. It was signed by Mr Iddles who the accused knew at the time to be the Homicide Squad investigator to whom he had spoken by telephone.

76 The document set out "recent developments", identifying that witnesses who provided evidence that the victim was in fear of the accused, and that he had a sexual interest in the victim, and that a statement made by the accused as to his whereabouts on the night of the murder had been investigated and found to be false.

77 Under the heading of "ongoing inquiries" it was asserted that it was intended to request a blood sample for DNA purposes and to request the accused to undergo a polygraph investigation. It was also stated that there were "striking similarities" between the crime scenes of the deceased and another later victim of the accused in relation to whom he had been convicted of manslaughter. The similarity was said to be that both crime scenes were cleaned subsequent to the death of each victim.

78 The document asserted that the investigation was "progressing apace" and that on completion of these inquiries, approval would be sought from the DDP to charge the accused man with murder.

79 Mr Iddles was cross-examined by Mr Morrissey in detail about this document. Mr Iddles stated that every piece of information on the prop was true. I accept that nothing in the document can be said to be "untrue" but I am of the view that it overstated the progress of the police investigation. The police may have had evidence that the accused had previously said he was at work on the night of the murder and re-investigation had demonstrated he was not, but what evidence of that nature there was, fell short of evidence of false alibi. Likewise in relation to DNA , the police had hair samples obtained at the scene. These samples had been analysed in 2001 in Victoria to no avail in terms of producing a DNA profile. Police were hopeful that a more sophisticated analysis would involve the hair being examined either by the FBI in the United States, or by Scotland Yard in the UK, which examination was hoped to be arranged in the future. It was, however, an overstatement to say, as the prop did, that forensic examination of a "relevant item" found at the crime scene "is currently being undertaken".

80 In my view, although Mr Iddles did not concede it, to say that the investigation was "progressing apace" was a further exaggeration. True it was that re-investigation and further investigation, had taken place but little new admissible evidence had been established by that time. The document was designed, in my view, to convince the accused that he was to use the words of Mark, "red hot". To that extent the prop was intended to and did play a significant part in the subterfuge of the accused. It formed an important part in the manipulation of the accused by Mark in his discussions with him.

81 The use of the prop followed the exhortations by Mark to the accused, including the direct suggestion made by Mark on several occasions that the accused was responsible for the death of the deceased.

82 The first issue which arises is whether the elicitation of the admissions were unfair, or so unfair or improper, taking into account the stage of the investigation, that they should not be admitted into evidence.

83 In my view, it is apparent that notwithstanding the confident tone of the prop, such circumstantial evidence as existed and which would be likely to be admissible in the course of a trial, fell a long way short of being sufficient to lay any charge against the accused. There was no basis to detain the accused at that time, and in my view it is apparent that he was not in custody and subject to the compulsion of the State at the time of the discussions with Mark.

84 As stated above, I do not consider that he was under any compulsion in terms of threat of violence at that time. I do not accept the submission made that his circumstances were akin to custody. In my view, the argument that the accused was denied the rights to which he would have been entitled under s.464 of the Crimes Act is not sustained by reason of the stage of the investigative process not being at a point where there was evidence pointing to his responsibility for the commission of the crime.

85 However, the question of whether the covert police crossed the line of forbidden conduct nevertheless remains to be considered. Mr Morrissey does not contend that the police committed any illegal act as such, but he does, and strongly, contend that the admissions of the accused were elicited by highly improper means. In particular, as stated above, he submits that the relationship between Terry and Mark and the accused was unequal and that the discouragement from the immediate provision of a DNA sample as requested by Iddles was improper. This unequal relationship, allied to the manner in which Mark spoke to, and harangued the accused to a degree, he submits, is such that the admission should be excluded. The means adopted by the police which he submits were disproportionate to the purpose of investigating whether or not the accused was involved in the crime, are such that the responses elicited should be excluded as a matter of public policy.

86 Subterfuge on the part of police in the investigative phase has long been recognised by Appeal Courts to be acceptable in particular and prescribed circumstances. Indeed, s.464 of the Crimes Act excludes a person engaged in covert investigations under the orders of a superior from the definition of an "investigating official".

87 As stated by Brennan CJ in R v Swaffield[20] and Pavic and by the Court of Appeal in R v Lewis[21], the investigation of serious crime cannot always be played out in accordance with a sportsman's code of conduct.

88 In the case now under consideration, the elicitation of the admissions by the accused man was certainly in all the circumstances obtained by deceptive means. However, it did not seek to circumvent any express refusal by the accused man to exercise his rights not to talk to police. The elicitation took place in the circumstances of a relationship between the accused and members of the purportedly criminal organisation, which relationship the accused entered into freely and for his own purposes. The stage at which it occurred was at an investigative stage and in circumstances where, in my view, there was no vulnerability on the part of the accused caused by detention or custody. Furthermore, and in my view, the inequality between the accused and Mark upon which Mr Morrissey relies, does not bare comparison with the inequality between a person in authority with all the apparent force of State power who is dealing with a person in custody.

89 Furthermore, the demeanour of the accused man as revealed by viewing the video tape is of a person who was anxious to impress Mark so as to be able to join the criminal organisation and who was seeking assistance as to how to avoid the possible consequences of the police investigation which he then knew to be underway. In my view, however, it is not the case that there was any special characteristic of the relationship between Mark and the accused or, for that matter, between Terry and the accused, which was exploited unfairly so as to extract a statement which would otherwise not have been made. Indeed, as stated above, the accused gave evidence before me that shortly before making the admissions he accepted that he had "a choice to walk away" if he so wanted.

90 Whilst I accept that the prop did overstate the strength of the police investigation, the overstatement, in my view, does not amount to such material misleading as to the position of the police investigation, so as to be so unfair or so improper as to justify the exercise of the discretion to exclude the admissions which followed the production of the prop. From an objective viewpoint I accept that the impression gained by the accused as to the areas of police investigation, and the impetus it was gaining, motivated him to seek the assistance he believed could be given by Mark to interfere criminally with the analysis of any DNA sample. No doubt also the document had the effect of underlining the fears of the accused which had led him to seek assistance from Terry after Mr Iddles had left his calling card at the home of the accused and had made his request for a DNA sample during the telephone conversation.

91 However, in all the circumstances, I do not conclude on balance that the means adopted by the covert operatives to elicit the admissions were disproportionate to the purpose, particularly when one considers the seriousness of the crime under investigation.

Forensic Disadvantage

92 The second basis of exclusion of the admissions as being contrary to the general discretion relied upon by Mr Morrissey is that the accused faces forensic disadvantage if evidence of the admissions are admitted into evidence.

93 Mr Morrissey submits that the forensic disadvantage is such that no matter what editing is undertaken, the jury will have to become aware that the accused is a person with a criminal past and who is prepared to engage in criminal acts in the future and who is prepared to be involved in criminal acts to interfere in the police investigation of him in relation to the murder of the deceased.

94 This submission by Mr Morrissey, like many of his other carefully thought out submissions, is not without some weight. It is true that the false scenario used by police to investigate the involvement of the accused in the murder of the deceased was designed by police to have aspects of significant criminality apparently associated with it. It is not possible to conduct the case in front of a jury if the covert evidence is introduced without the clear implication that the accused was prepared, for reasons of greed at least, to engage in future criminal activity. How much of the past history of the accused will be required to be put before the jury to enable him to put his defence which, as I apprehend it at present, is that he confessed falsely to both Mark and later to Detectives Iddles and Day, is not clear to me, but clearly there is a real issue of prejudice in that regard. It is apparent that at least some material which is prejudicial will therefore be introduced before the jury. At the minimum, as I have said, there will be evidence that the accused man was prepared to commit crimes for money. To that degree, at least, there is little argument that he will suffer forensic disadvantage by the admission of the evidence against him.

95 This is a matter of some concern and it cannot, in my view, be resolved necessarily by the editing of certain parts of the confessional statements. If the accused is to conduct his defence on the basis that he made untrue confessional statements for the purpose of obtaining entry to a gang, and for the consequent financial and other rewards, material which is prejudicial will certainly come before the jury.

96 I have considered this issue carefully, and the possible parameters of forensic disadvantage which may be suffered by the accused depending upon how his case is finally put. In the end result, however, I have concluded, on balance, that on the material before me, and assuming some sensible agreement as to appropriate editing, and of course to the obvious requirement that the jury be directed carefully as to the manner in which such evidence might be used, the forensic disadvantage can be overcome. However, it may well be that this issue will be required to be reconsidered as the matter proceeds, in the event that the admissions made to the covert operatives are not excluded.

'The general discretion"

97 I turn to the third basis upon which Mr Morrissey argues that the admissions ought to be rejected. That basis is that in the exercise of the general discretion the nature of the covert operation was such that it constituted too high a price to pay for admissions. The operation, he submits, was costly, lengthy and unaccountable. He submits that in particular it involved the deliberate depraving of an apparently reformed offender. He submits that the operation was conducted in a "cavalier manner" and that the investigation embarked upon had obvious dangers particularly if such an investigation technique might be used by corrupt police. (I point out that Mr Morrissey makes no such allegation against the police involved in this investigation.) Mr Morrissey submits that the dangers of such a method of investigation are such that the court should not sanction such conduct.

98 I accept that the courts should be zealous to ensure that covert operations of the type undertaken in this case should be scrutinised carefully. It is, I think, raised fairly by Mr Morrissey as a matter of some concern that a person who, as far as I can say on the material before me, appears to have been a law-abiding citizen at the time he was first approached by covert operatives was then introduced into a world of, albeit fabricated, criminal activity. However, on the other hand, the fact is that the accused exercised his own free will in this regard. Indeed, he joined in the exercise with some enthusiasm. Significantly, and contrary to the then belief of the accused, no actual criminal act occurred. The police conduct, although dramatic, was not unlawful. Police officers acting as covert operatives did not commit any crimes. In particular the purported criminal activity was not designed to introduce the accused man into such activity in order to arrest and charge him for it but, rather, used as an investigative tool to solve an extremely serious crime.

99 No doubt there is weight in Mr Morrissey's contention that the purported involvement of the accused and the criminal activity of the organisation headed by Mark faced a risk of reintroducing the accused back into crime. It might also be said that some of the language used by Mark and some of the statements made by him such as, "I couldn't care less whether you killed 10 kids, it doesn't make any difference to me", were extravagant and of concern as to their possible effect upon an apparently reformed person.

100 However, in the end result, the court must exercise an overall discretion balancing the individual and public interest in protecting the rights of the accused against the public interest that serious crime be the subject of effective investigation and prosecution.

101 I consider in weighing that balance, that despite some concerns, the conduct of the covert operatives did not cross the line of acceptable conduct and that the admissions made to Mark on 6 June 2002 should be admitted into evidence so as to enable a jury to assess their probative value.

102 It is, however, appropriate to note that admissions obtained from suspects in covert operations similar to that now under consideration have been held to be admissible in a series of Canadian cases and in two Victorian cases, Tofilau and Ghiller. I accept the submission of Mr Morrissey that the circumstances of the case now before me are significantly different from those before the court in Ghiller and are to an extent different from those in Tofilau although there are also significant similarities. The Court of Appeal is yet to consider a case where the investigative techniques used are similar to those before me. As much as I have, and not without some anxiety, formed the view that the line of forbidden conduct was not crossed in this case, the dangers referred to by Mr Morrissey in his submissions are not, in my view, imaginary

The Record of Interview

103 Mr Morrissey contends that the video tape of the record of interview should not be admitted on the basis that it is so related to the recorded discussion with Mark that the admissions made are tainted. In circumstances where I have concluded that the prosecution has on the balance of probabilities, established that the admissions made to Mark were voluntary, and where I conclude they are of sufficient reliability to go before a jury, and where I consider on balance that the exercise of the general discretion does not necessitate their exclusion, it follows that the record of interview is not so tainted by what preceded it as to be rejected.

104 Insofar as it is necessary for me to find that the record of interview was voluntary, I am satisfied that it was. The accused was warned appropriately. I do not accept the evidence of the accused that he was in "two minds" as to whether Day and Iddles were corrupt police and associates of Mark. Iddles was named in the newspaper article of 2 June 2002 as the officer-in-charge of the Homicide Squad investigation. Iddles had left his business card at the premises of the accused. The accused had spoken to Iddles on the telephone when Iddles had made a request for him to come in and provide a blood sample for DNA and a polygraph test. The accused had discussed the Homicide Squad with Mark and Mark had not suggested in any way that he had corrupt connections with the Homicide Squad. Indeed, Mark had said that "the Homicide Squad don't ever give up"; he said "they were not the home town bobbies from the local detective station" and that he "could not think of a worse mob to be looking at you". There was no suggestion from Mark that he had corrupt contacts with the Homicide Squad. Furthermore, Iddles is the signatory to the prop which was headed "Homicide Squad". When Terry dropped the accused off at St Kilda Police Station at 7.16 on 6 June 2002 Detective Senior Constable Day, in the presence of Iddles, said, "My name is Senior Detective Tim Day from the Homicide Squad, you are under arrest for the rape and murder of Bonnie Melissa Clarke in 1982". He was then handcuffed and escorted through the police complex. He was given the statutory warnings. He was then spoken to by Iddles and given the opportunity to ring his de facto wife. There is nothing in that conversation, which was video taped, to suggest other than that the accused believed he was under arrest for the murder of the deceased. Indeed, quite the contrary is the clear impression I obtained by viewing the video tape which preceded the giving of the record of interview. Clearly when Day commenced the formal record of interview 15 minutes later, Iddles was stated by Day to be present as the corroborator. In my view, there is no likelihood at that time that the accused was under any misapprehension as to whom he was talking and the matter about which they were talking.

105 I do not accept that there was any basis for the accused to hold a belief that the record of interview was conducted by persons who could possibly be corrupt police associated with Mark. In my view the record of interview was voluntary and given after appropriate warnings as prescribed by s.464 of the Crimes Act were given by both Day and Iddles

106 For the above reasons, I rule that the admissions made by the accused to the Covert Operative Mark and then to the Homicide Squad and Iddles on 6 June 2002 are admissible and that they should not be excluded in the exercise of the court's discretion.

---

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

[2] See R v Juric [2002] 4 VR 711 at 439.

[3] (1948) 76 CLR 501 at 511.

[4] [2003] VSC 188.

[5] See paras. 26-42.

[6] (1992) 28 NSWLR 215 at 229.

[7] At p.511.

[8] [2003] VSC 350.

[9] Transcript p.228.

[10] Transcript p.248.

[11] Transcript p.382.

[12] Transcript p.229.

[13] Transcript p.231.

[14] [1946] HCA 55; (1946) 73 CLR 316 at 338.

[15] [1987] HCA 50; (1987) 163 CLR 454.

[16] [1960] VicRp 22; [1960] VR 141.

[17] (1990) 19 NSWLR 177.

[18] [1996] SASC 5462; (1996) 85 A Crim R 120.

[19] At 219-20.

[20] [1998] HCA 1; [1998] 192 CLR 159 at 185-6.

[21] [2000] VSCA 140; [2000] 1 VR 290 at 314 per Charles JA with whom Chernov JA and Hedigan AJA agreed.