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.
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