R v Clarke [2006] VSCA 43

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

3 This applicant was found guilty in the Trial Division of this Court of the murder, on 21 December 1982, of Bonnie Melissa Clarke. He was subsequently sentenced to life imprisonment with a non-parole period of 25 years.

4 He now seeks leave to appeal against his conviction and sentence. He relies upon the following grounds in support of the conviction application:

1. The learned trial judge erred in failing to exclude the admissions made by the applicant to Covert Operative "M" on 6 June 2002 as involuntary.

2. The learned trial judge erred in failing to exclude the admissions made by the applicant to Covert Operative "M" on 6 June 2002 as unreliable.

3. The learned trial judge erred in failing to exclude the admissions made by the applicant to Covert Operative "M" on 6 June 2002 as contrary to the general discretion.

4. The learned trial judge erred in failing to exclude the admissions made by the applicant to Detectives Day & Iddles in the evening of 6 June 2002 as involuntary.

5. The learned trial judge erred in failing to exclude the admissions made by the applicant to Detectives Day & Iddles in the evening of 6 June 2002 as unreliable.

6. The learned trial judge erred in failing to exclude the admissions made by the applicant to Covert Operative "M" on 6 June 2002 pursuant to the general discretion.

The Background

5 The deceased (born 12 January 1976) was aged six years at the time of her death. She was in the care of her mother, Marion Wishart, who was employed as a nurse. At the that time, they resided in a house in Westbourne Grove, Northcote.

6 Mrs Wishart had difficulty paying the rent on her own, so she contacted an Agency called "Flatmates" seeking a person to move in as a co-tenant. In January 1982, she was contacted through this source by the applicant, and he took up residence in the same month. He remained there until around September 1982 and then moved into the house next door for a period.

7 Mrs Wishart occupied the bedroom at the front of the house. The applicant occupied the next room and the third bedroom in the premises was occupied by the deceased. At the rear of the premises was a gate that provided access to a lane. Mrs Wishart stated that they never used that gate or the laneway.

8 During the period of the applicant's residence in the house, the deceased had a small dog, called "Moomie", which always slept in her bedroom. Once the applicant had become part of the household, "Moomie" was friendly towards him and did not bark or yap when he arrived home. Mrs Wishart had another small dog, "Troy", which barked incessantly at those he did not know when they came to the house. However, the evidence indicated that once "Troy" became familiar with people, he stopped barking at them altogether. The applicant was in this category.

9 While they had the dogs, Mrs Wishart had a practice of leaving the sliding door, at the back of the house, partly open. This door opened onto a side passage, at the end of which was a beaded curtain. In the passageway, there were some hanging basket plants that could be easily bumped into at night unless one was familiar with the premises and was aware of their presence.

10 On the night of 20 December 1982[1], Mrs Wishart put her daughter to bed at around 8.30 p.m. Bonnie was wearing pyjamas and slept in a single bed with a doona over her. Between 10.00 and 11.00 p.m., Mrs Wishart went to her room which, as I have mentioned, was at the front of the house.

11 The evidence indicated that it could reasonably be assumed that "Moomie" would have been in bed with the deceased while "Troy" would have been asleep on a couch in the lounge room. The door of the deceased's bedroom was left slightly ajar in accordance with her preference and, as she did not like sleeping in the dark, there was a night light on a small table beside her bed. The front door was locked, but the rear sliding door was left partly open in accordance with normal practice to allow "Troy" to come and go.

12 Before Mrs Wishart retired for the night, she looked in on the deceased. Sometime in the early hours of the morning, possibly around 1.30 a.m., Mrs Wishart went to the toilet at the rear of the premises and again checked on her daughter as she went past. When she returned, she found that the deceased was awake and wanted a drink which Mrs Wishart gave her.

13 At a time prior to 7.00 a.m., Mrs Wishart received a telephone call from the nursing agency, through which she obtained employment, asking whether she could come to work immediately. She rose and went to the bathroom. As she passed Bonnie's bedroom, she looked in and saw that the child's head was on the pillow with the doona up under her chin. She appeared to be asleep.

14 Mrs Wishart continued with her preparations in the bathroom and in the kitchen. She then returned to the deceased's bedroom to wake her and to give her breakfast. Observing that Bonnie was very pale, she pulled back the doona and saw that her daughter was naked with a stab wound to the left side of her chest. The child was lying on her back with her arms beside her and there was some bruising or marking around her neck. Mrs Wishart immediately went to the telephone and called for assistance.

15 Constables Ashley Perry and Amanda Fennessey were on patrol duty at 7.52 a.m. when they received a call to attend. They entered the premises and observed the deceased.

16 The ambulance which had also been dispatched arrived at about 7.58 a.m. Paul Vallence, a student ambulance officer, was immediately taken to the deceased's bedroom. He noted a puncture mark about three centimetres across, just below the left breast, with some external bleeding visible. There was bruising around the front of the throat and evidence of bleeding from the anal region. He detected no vital signs and it was apparent that the child had been dead for some time as rigor mortis had developed.

17 Sergeant Henry Huggins, a crime scene examiner, attended about 9.00 a.m. He found that the high double gates on the southern boundary that gave access to a laneway were closed and saw no indication that anyone had climbed them or the fence on either side.

18 There was an extended area of wetness produced by water, underneath and to the right hand side of the child's body. Sergeant Huggins concluded that water had been used to clean up around her.

19 When the bed was pulled away from the wall, the police found a pair of blood stained pyjamas stuffed underneath.

20 A cutlery drawer in the kitchen was found slightly open. In a pile of clothing in a laundry basket in the laundry, Sergeant Huggins found a white coat with what appeared to be a blood stain.

21 Dr Matthew Lynch, a forensic pathologist, and Dr Morris Odell, a forensic physician[2], gave opinion evidence based on their reading of the original autopsy and medical examination reports which recorded: the presence of petechial haemorrhages to the right upper eyelid and to the nose, along with neck abrasions and purple marks or bruising to the neck; that the hymen was not intact; that there was tearing to the vagina with blood around the vulva; a one-and-a-half inch wide irregular stab wound to the left chest; and bleeding or bruising in the wall of the rectum.

22 The injuries to the genital area were consistent with some form of penetrating blunt trauma by a finger or other object and had associated haemorrhaging, which indicated that they were inflicted prior to death.

23 A significant amount of blood was found inside the chest cavity but there was little external bleeding from the stab wound. However, the child's pyjamas were heavily blood stained and it appeared that her body may have been rolled over at some stage. The chest wound penetrated the pulmonary vein and the left lung and would have been rapidly fatal. The evidence of neck compression suggested that asphyxia also may have played a role in the child's death. Dr Bush, a police surgeon, concluded that, although it was not possible to state precisely the time of death, the temperatures of the room and the body were consistent with it having occurred eight to twelve hours earlier than when she was examined (at 10.00 a.m.).

24 Biological analysis of various samples and exhibits was conducted by a scientist, Pauline Henthorn[3]. Her reports and notes were reviewed by another scientist, Nigel Hall and further analyses and tests were conducted by Catherine McBride, also a scientist.

25 The blood and blood staining found on all associated clothing were consistent with the deceased's blood type. McBride conducted analyses of the samples which, at the time of the trial, were still available and could be analysed. She detected DNA consistent with a female, but no sign of male DNA or spermatozoa. McBride also examined the deceased's underpants. There were two cuts in the front panel, respectively left and right of the centre, extending the complete length between the waistband and the respective leg bands. As they appeared to be consistent with a sharp smooth-bladed implement, such as a knife or scissors, McBride carried out simulation experiments on similar garments. She formed the view that the cuts were consistent with a repeated cutting action using either a knife or scissors.[4]

26 There were a number of witnesses called who were either involved in the investigation at around that time and had no contact at all with the applicant, or who did speak to him, but only about matters unrelated to the death of the deceased.

27 Former police officer, Rory Daniel O'Connor, was a member of the Homicide Squad team which investigated the death of the deceased under the direction of Detective Senior Sergeant Lillee (now deceased). He stated that on 13 September 1983, he and Lillee spoke to the applicant about the death of the deceased. The applicant was told that she had been strangled, stabbed and sexually assaulted. No other details were disclosed to him and it was the only time they had cause to speak to him concerning this matter.

28 O'Connor was cross-examined by counsel for the applicant in respect of the likely press coverage of the matter, the possibility of details being released to the press and a series of newspaper articles in 1982, 1983 and 1984.[5]

Scenario Evidence

29 It was not until almost 20 years later, in March 2002, that the Victoria Police Undercover Unit commenced "Operation Marauder" under which they staged a series of "scenarios" in which operatives, posing as members of an organised criminal gang, interacted with the applicant.

30 There is no need to set out all the detail of the various staged activities in which the police operatives engaged in their endeavours to attract the interest of the applicant and to induce him to trust them. They involved what appeared to be quite serious criminal conduct including blackmail, assault, burglary and engagement with corrupt public officials.

31 However, on 17 May 2002, one of the operatives, "T", and the applicant went to a hotel and a scenario was staged at that location. It commenced with the applicant and "T" sitting at a table in the hotel lounge while a number of operatives were seated at another table. The applicant was told that one of those men was "the boss", that another was his "right hand man", "A", and that a third person, who was pointed out, was a corrupt police officer. "T" told the applicant that "the boss" was "checking him out" for a "big job" that was being planned.

32 On 23 May 2002, they carried out a purported jewellery burglary. The applicant was told that his involvement in the gang's activities was about to increase substantially, subject to the checks earlier mentioned, proving satisfactory.

33 The applicant and "T" were involved in a number of staged activities including one on 29 May 2002, at the rear of the St Kilda Road Police Complex. There they met with operative "G" who was posing as a corrupt policeman. Later they met with "A" at a park where they were told that the sums of $12,000 and $8,000 were to be given to "T" and the applicant respectively, as their shares of the proceeds of the jewellery burglary. They attended at a bank where the amount allocated for the applicant was placed in a safety deposit box. The applicant said that if, as a result of the check on him, "the boss" said "no", he was content that this money would not be received.

34 CD recordings of a series of conversations between "T" and the applicant on 3, 4 and 6 June 2002, were tendered as exhibits. One contained an 18 minute conversation which involved "T" and the applicant discussing fingerprint and DNA evidence. A copy of the "Sunday Age" dated 2 June 2002 was produced and the applicant read from an article about the Bonnie Clarke case[6]. It reported that DNA testing was being used to solve old murders and that the police had recommenced their investigation in this case. The article stated that the police believed that the killer may have boarded with the child's family before she was killed and that they planned to interview at least 14 persons who had rented rooms in the house during the three years prior to the murder. "T" explained to the applicant that, even after 20 years, DNA evidence could be used to place a person at a scene and that a person so implicated would have to account for his presence. He said that if "he's got a fair enough reason, fair enough, but if you haven't - well you're in the, in the pooh." Later in the conversation, "T" remarked, "Well it's nice to be connected to people who can make things disappear". The applicant enquired as to the cost of making "things disappear" and "T" replied, "That's what the boss is for ... 'cause then he comes back on him, he looks after me. I tell him honest if I've got anything and then he fixes it up. No cost to me, cause of looking after him ... he just wants to know so he can look after himself".

35 At 6.35 p.m. on Monday 3 June 2002, Detective Senior Sergeant Iddles of the Homicide Squad attended at the applicant's home in Box Hill, and spoke to his partner, Lyn Wade. He left his business card indicating that he wanted the applicant to contact him. It was this that triggered the series of conversation described in the previous paragraph. Transcripts of other conversations from around this time were tendered in evidence. They include the following.

36 At about 9.10 p.m., "T" received a call from the applicant who told him that he had received this visit and that it related to the article in the newspaper. At the applicant's request, "T" drove out to his home where they conversed[7]. The applicant told "T" that he had lived with a mother and her child in Northcote or Westgarth and that it might have been that child who was killed. He said that he had been contacted by Detective Sergeant Iddles and he understood that they were interviewing all the boarders who had lived in the house. The applicant suggested that this could be causing a delay in the police check being made by "the boss". He said that his partner had been told that the investigators wanted him to undertake a DNA swab test and a polygraph test. He said that the Detective Sergeant had informed his partner that, so far, they had located about six out of twelve or fourteen possible boarders. The applicant said that he did not know who killed the child, but he had resided at the house for about nine months as a boarder and knew the mother and daughter. He was working as a projectionist with Greater Union Theatres at that time. He said that he subsequently moved into the house next door. He recalled that police officers spoke to him at his workplace and that they had thanked him for making a statement. He said that that was all that had happened.

37 "T" indicated that "the boss" could "fix" anything, but that he had to be provided with the absolute truth. He explained that they could arrange to teach the applicant how to nullify the polygraph test, but "the boss" had to know exactly what had transpired. "T" said that the "DNA side of it can also disappear". The applicant repeated that he was not responsible for the death of the child. "T" advised him not to telephone Iddles until he had heard from him ("T"). He reasserted the need for the applicant to be absolutely honest and indicated that the problem could disappear in 24 hours as long as everything was out in the open. He suggested that, if there was DNA evidence, it would have been found in hair or semen that was left on the child. The applicant replied, "But I know for a fact that hair floats around in and around all the time." He expressed doubt about his capacity to pass the polygraph test. He told "T" that he had stayed in the house next door for a few weeks only, before moving back to his parents' home because he could not afford the rent.

38 At about 1.05 p.m., on 4 June 2002, Detective Senior Sergeant Iddles received a telephone call from the applicant who asked why Iddles had attended his home on the previous evening. Iddles explained that he needed to speak to him about the murder of the deceased. He told the applicant that he was seeking a DNA swab and, that if he agreed, they wanted him to submit to a polygraph test. The applicant responded that his mother-in-law had died and that he needed to attend her funeral, but that he would call to arrange a suitable time to attend the Homicide Squad offices and said that he did not kill the deceased.

39 Later that day the applicant met with "T"[8]. The applicant told him that he was to ring on the following Thursday to arrange a time to meet with the police. The applicant said that, at the time of the death of the child, he was living with his parents in Brunswick. He recounted how he came to move into the deceased's home. He said that, after he moved next door, he still spoke to Mrs Wishart over the fence and that, once or twice, the deceased had knocked on his front door because her mother was not home and she was scared. He said that she would come in, sit on a bean bag and watch television. When he saw, through the kitchen window, that Mrs Wishart had returned, he would tell the child that she could go home. He remained in that house for about a month before he moved to his parents' home in Brunswick. He learned about the killing from a television news broadcast on the day on which it occurred. He believed that, when he saw that broadcast, he was at home. "T" stated that if "the boss" discovered that the applicant had not been completely honest about the matter "he'll just wipe yuh and we'll all have to walk away. And I don't want to leave you on your own, I like you. I want to help you. I want us to continue doing this sort of stuff." "T" stated that, if necessary, they could provide the applicant and his partner with passports and money to enable them to go overseas. The applicant said "I know I didn't do it. I swear on a stack of bloody Penthouse magazines". "T" told him that to "beat" a polygraph test, it was necessary for a trainer to be in possession of all relevant information so that the person undertaking it could be taught to respond or react appropriately to any question that might be asked. He explained that "the boss" knew of the existence of a problem and wanted it resolved. For this reason, "T" insisted, he did not want anything left unsaid. He reminded the applicant that there was also money waiting for him. The applicant responded that, if the money had to go back to "the boss", he would have no complaint. "T" then assured him that this would not occur once the situation was clarified. The applicant referred to the knowledge that he had acquired from "the old bluestone college" and his appreciation of the importance of the relationships between criminals who worked together. He said that he had learnt that "despite what you're saying, you, you, got to be truthful, be up front".

The Meeting at the Crown Towers Hotel

40 On Thursday 6 June 2002, at about 3.00 p.m., "T" picked up the applicant and took him to a room in the Crown Towers Hotel at the Crown Casino[9] to meet "M", "the boss".

41 In the course of that journey, "T" told him that the upcoming meeting with "M" was his "job interview", and he repeated that the applicant would be brought undone if he told a single lie.

42 In the room, "M"[10] said that "T" and "D", another undercover operative, had spoken well of the applicant, but that he needed to protect himself. "M" pointed out that, as the applicant did not know "M's" proper name, or indeed that of any of the gang members, as soon as he left the Hotel there was no way that anyone could find him. He said that the room had been booked under a false name and that all of their telephone numbers would be changed. "M" explained, "You could walk out of here today and go on the rest of your life doing whatever it is you were doing before "T" came along." He said that while the gang members were enthusiastic to have the applicant as one of them, and although it would be difficult to find someone with the applicant's particular skills, he could find someone else if he considered the applicant to be unsatisfactory. "M" said that he had to be able to trust him "a hundred per cent".

43 The applicant outlined his wedding plans and said that he had not yet decided upon the arrangements for their honeymoon. When asked whether he had any money, the applicant said that he was working as a personal care attendant, as this was the only job that he had been able to obtain. He said that he hoped to become a full time employee of the Puffing Billy Railway Society. "M" told the applicant that if he became a member of the gang, he could give up the nursing work and, eventually, would have enough money to buy his own train.

44 The applicant outlined the skills that he believed he could offer, some of which he had acquired from his time in prison. He described how he came to reside in the deceased's home and the subsequent events, repeating that he did not kill her.

45 "M" said, "You, at the moment, are red, red, fucking red hot, right?" explaining that the applicant could not have more police "heat" on him if he tried. He said that they had witnesses concerning his relationship with the little girl and that they had some sort of DNA sample, which was why they were asking for the swab. They had conclusively eliminated the mother as a suspect and were now focussing on the applicant. "M" told the applicant that if he refused to give his DNA, a court order would be obtained.

46 The DNA problem could, however, be fixed by him for the sum of $5,000. He was prepared to pay this amount on the basis that he would secure a much greater return from having the applicant as a gang member. The applicant discussed the possibility of fixing the proposed polygraph test, but he believed the necessary coaching was very expensive. "M" canvassed various ways in which these problems could be fixed. He reiterated that he could not help the applicant unless he knew what had happened. At this stage the applicant, while expressing concern, had not made any statement implicating himself. "M" then produced a three page "Confidential Police Report", dated 15 May 2002[11]. This was a fabricated document prepared for the occasion.

47 The applicant responded, "I so much want to marry her, ... and have a decent bloody life. Fucking hell. Fucking hell, it was an accident she died." The applicant told "M" that he was drunk and that he went to the child's room to "play" with her. He said that she wanted to scream or something and that he covered her head. He said that he probably had a knife with him. He recalled that he entered the house through the back door and went down the passageway to the child's room. Her light was on and he remembered seeing a small dog. He said that he "fingered her", that she tried to scream and that he covered her head with a pillow. He said, "I think I may have had the knife and I may have, I think I may have just shoved it into, into the side of her chest wall". The applicant described how he gained entry to the house by climbing over the rear gate or fence from the laneway at the back of the premises. He sketched out a plan of the premises with a pen provided by "M"[12]. When asked how he travelled to Westbourne Grove, the applicant suggested that he had probably walked, but that he may have taken the tram which ran down St Georges Road. He said that the killing probably occurred at around midnight. He was in the house for about 10 to 15 minutes and left the same way that he entered. He thought that he walked home. He believed that he washed his clothes on the following day and that the shoes that he was wearing would have been thrown out eventually. He described the knife he had with him as "like a small bread carving knife." He had taken it with him when he went to an hotel earlier that evening because he had been having trouble with a couple of youngsters or thugs. He said that the knife would have come from his own home and he could not remember what happened to it. The applicant speculated as to whether DNA had been found on the knife or its scabbard and suggested that there might have been saliva found because he had possibly licked his fingers before "fingering" the child. He said that, as he had not previously touched her sexually, there was nothing that she could have told anyone before she died. He did not see any blood spurting from the knife wound and believed that she was already dead. He believed that it was possible that he may have left the scabbard behind. He did not remove any clothing from the deceased and simply put the sheets over her without covering her face. He said that he may have pulled up her pyjama pants before covering her with the sheets. The applicant thought that he also cleaned up and wiped down the door handles. He said that he suffocated her with a pillow and did not strangle her.

48 "M" said he would have to make some telephone calls and that he would have "T" and the boys take him for a coffee. Before leaving the room, the applicant handed "M" the business card which Detective Senior Sergeant Iddles had given him.

49 "T" and the applicant subsequently left the Casino. While driving, "T" received a telephone call from "M". "T" explained to the applicant that they had to meet the corrupt police officer to pick up something[13]. They drove to the rear of the St Kilda Road Police complex where the applicant was arrested by Detective Senior Sergeant Iddles and Detective Senior Constable Day.

50 A formal tape recorded interview was commenced at 7.45 p.m. The applicant said on this occasion that when he assaulted the deceased he was drunk, and when he came to his senses, he realised that the deceased was dead. He had either walked or taken a tram to Westbourne Grove from a hotel in Brunswick where he had been drinking. He described the knife he had with him as probably three or four inches long with a black handle, although he could not recall its dimensions precisely. It had a cover incorporating a sharpener. He climbed over the fence at the rear of the property into the backyard and entered through a door that was partly open. He said that there was always a light on in the deceased's bedroom.

51 During the interview, it was put to the applicant that he had, earlier that evening, had a conversation with a person at the Crown Towers Hotel. The applicant said that he did not know what they were talking about. The applicant was then told, "A fellow by the name of "M". You recall that? ... Do you recall that conversation with him?" The applicant said, "Yeah". 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?" He was told that they were affording him the opportunity to explain what occurred in the bedroom on that night.

52 The applicant said that he "fingered" the deceased and tried to silence her by putting a pillow over her face. When he saw that she was not breathing, he panicked and stabbed her. There was no blood spurting from her. He then left the house in the same way that he had entered. He denied attempting to strangle the deceased with his hands and said that when he left, he pulled up her pyjama pants and drew the sheets or blanket over her. He said that he probably cleaned up and left. He said that he "played" with the deceased's private parts. When asked whether he was aware of the presence of anyone else in the house, the applicant said that there was noise coming from the front and he presumed that Mrs Wishart was entertaining a male friend in her room. He said that there was no struggle, save that the child put her hand up while he was trying to smother her and that it then dropped down limp. The applicant said that he would have noticed the presence of any blood on his clothes, if there were any.

53 The applicant was asked what he thought would be the result if he held a pillow over a young child's face. He said that he thought that it would have suffocated her or would have induced shock. The applicant was asked whether he realised that such an action was dangerous to life. The applicant said that he was not thinking about that and was more concerned about keeping her quiet. He thought that the deceased was dead before he stabbed her.

The Applicant's Evidence

54 The applicant did not give evidence at the trial, but was called on the voir dire hearing as to the admissibility of his inculpatory statements and associated evidence. In the circumstances, some reference should be made to what he said in evidence-in-chief and under cross-examination on the voir dire.

Evidence-in-Chief

55 The applicant stated that he became acquainted with covert operative "T" and formed a friendship with him over a period of months. They performed a number of illegal activities together, although it took him some time to realise the illegality of them. It was indicated to him that "T" was a member of a criminal organisation with connections with corrupt policemen in Victoria and New South Wales. In the course of one of the activities, he claimed that he met a person whom he understood was one of the corrupt police. This person handed the applicant a brown envelope upon the applicant stating that he was there on behalf of "M".

56 Prior to his discussion with operative "M", he was not aware that the police had taken an interest in him concerning the death of the deceased, although there was the occasion around the time that he was taken to see "M" when Detective Senior Sergeant Iddles had left his business card. The applicant stated that, although he spoke to "T" about the interest that the police had shown in him, he continually denied any involvement in the death of the deceased.

57 The applicant stated that as far as he was concerned the purpose of his meeting with "M" was to secure future employment and he thought that "D" and "T" had recommended him on the basis that they regarded him as a "pretty reliable bloke".

58 He recounted the events that took place in the room at the Crown Towers in which he was introduced and scanned with what he believed to be an "anti-bugging" device. He recalled that "M" had indicated to him that he was the "red hot" subject of a police investigation and that he could not be a member of the group if that were the case. He was told that he was free to leave, but indicated that "M's" tone of voice was such that he thought that he might have received a beating had he decided to do so. He felt that there was an element of threat associated with the meeting, but believed that, if he joined the criminal organisation, he stood to gain financially.

59 The applicant stated he was shown a police document by "M" who indicated that he could not have the applicant "hanging" around the gang if he was likely to present a problem. In consequence, within a short period of time, he began to make statements to the effect that he was involved in the death of the child. He recalled mentioning certain details about the knife that he told "M" he had used and provided a version of how he managed to get over the back fence and into the house. He recalled drawing a map and the details he supplied concerning what had occurred that night. However, he stated that he was fabricating his version as he went along. The reason that he provided this false description to "M" was that, when they confronted him with a document marked "confidential", he remembered thinking "what the hell's going on here, what's happening?". His state of mind at the time was such that when he found himself being interviewed about an incident that occurred 22 years previously, his mind "started to go fuzzy and crazy" at the thought that someone appeared to be trying to "fix him up" for a murder that he did not commit. Further, he was aware that he not only stood to lose approximately $8,000 but also the possibility of substantial, prospective future earnings with the gang. Figures of $25,000 to $80,000 had been mentioned. He worked in the aged care industry looking after elderly residents, but his hours were restricted because of the physical and mental elements attached to this type of work. His job did not pay much and he was just getting by. He was under financial pressure as he was planning to marry his de facto partner in a big wedding at the Puffing Billy Station and he badly wanted money at the time.

60 With respect to the applicant's knowledge concerning the nature of the sexual assault on Bonnie Clarke, he stated that he obtained this information from a "couple" of detectives whilst he was in Pentridge Prison. They told him that she had been sexually abused or tampered with, but he could not recall whether the topic of ejaculation was raised at that time. One of the detectives, Mr Lynch (now deceased), told him she had been stabbed in the chest on the left-hand side. During that discussion, he would have become aware that the bedclothes were pulled up to the child's neck, although he had no specific recollection of any reference to this matter. Similarly, in relation to his knowledge that the window in the child's room was closed and the blind was down, he claimed that these details were either mentioned by Lynch or the other detective. He told them that during the time in which he resided in the house, the window in that bedroom was never opened and the blind was always down. He could not recall whether the topic of the absence of blood on the deceased was raised by the detectives in that interview, nor could he remember whether there had been a conversation regarding the sequence of events in the attack on her.

61 The applicant stated that he had been questioned once at Pentridge and on a number of occasions at Russell Street, in relation to the deceased, although he could not remember the names of the police officers who interviewed him at Russell Street. He was also interviewed by the Homicide Squad and a couple of detectives from the Prahran and Brunswick precincts, but they spoke to him in relation to other matters, although reference to Bonnie Clarke was made during those conversations. Apart from those encounters, the applicant could not recall whether any details in relation to the death of the deceased had been disclosed in any form of the media.

62 When he had finished talking to "M", he was told that "M" was going to make a few calls and would "fix" things. The applicant understood that he ("M") was going to talk to one of the corrupt police officers with whom he was associated about the investigation. He also understood that "M" would put him on his payroll. After the meeting, "T" received a phone call and asked him to accompany him to the back of the St Kilda Road Police station, in order to pick up an envelope that had to be taken to "M" at Crown Casino. However, he was "whisked away by a couple of detectives" and arrested. Until that moment, he had been given no indication that the criminal gang was constituted by "a bunch of police dressed up as crooks".

63 When he was arrested, he thought that this was all part of "M's" interview and accordingly he "kept going with what was happening", although he was "in two minds during [that] stage of the interview". He was not sure whether Detectives Iddles and Day were "fair dinkum" detectives or whether they were on "M's" pay roll, as he could not tell whether they were honest or corrupt. He continued making admissions, because he felt that what was happening may have had something to do with what he had already said to "M" in the Casino hotel room. "M" had indicated that he was going to help the applicant "clean this business up" by having the applicant's DNA tampered with and also by teaching him how to "beat" the polygraph test.

64 Had he appreciated the true situation when he arrived at the offices of the Homicide Squad, he would have sought to speak to a lawyer and maintained his silence until a solicitor arrived to represent him. He also stated that had he known that "M" was a police officer pretending to be a criminal and offering false benefits, he would not have given him a fabricated version of events.

Cross-examination

65 The applicant stated that he confessed to the murder of the deceased by reason, in part, of feelings of "mateship" for the group, but he also wanted the $8,000 in the safe deposit box as well as any future earnings that he could make out of his association with them. The prosecutor put to him that, although he claimed that sums ranging from $25,000 to $80,000 were mentioned, there was nothing to that effect in the taped conversations. The applicant responded that he had noticed that that was the case, but that both "T" and "M" had mentioned that there were large quantities of money varying from $30,000 to $80,000 and he did not believe that all of his conversation with "M" was recorded.

66 The prosecutor questioned the applicant with regard to evidence given by his father concerning a conversation he had had with the applicant. He read the following passage:

"Joe told me that a chap was taking photos of Puffing Billy that day and offered Joe a lift home to Box Hill. This chap then took Joe to St Kilda Police Station where he was met by six police and threatened".

The applicant stated that there was no threat, rather intimidation and that his father had experienced "a little bit cross wires there." The applicant stated, however, that he was frightened and felt that it was likely that he would not only be bashed, but that some harm could befall his family and de facto partner, unless he confessed. The prosecutor also put to him that his father also stated that he was told by the applicant that if he did not confess, his family would be harmed by the police. The applicant asserted that that was the case and that he told his father exactly how he felt. He conceded that there were no verbal threats or suggestions of violence against him from "T" or "M" in any of the taped conversations, but said that they were implied in their tones of voice and the manner in which they expressed themselves. The applicant said that most of the intimidation came from "M" whilst at the Crown Towers Hotel, asserting that it was inherent in his posture, the fashion in which he asked questions and responded to answers, adopting a tone "like a professional boss". The prosecutor queried the applicant as to where he obtained his beliefs that the police were not only threatening him but his family as well. The applicant responded that these beliefs came from his previous experiences in the system.

67 The applicant said that he regarded "T" as an open, honest and trustworthy person, who was involved in a criminal organisation that maintained the importance of trust, loyalty and honesty, especially in situations where past indiscretions could attract attention to the gang. The applicant agreed he had "played" "T" to some extent and said that he did so in order to test him, just as he was being tested. The prosecutor asked him why, at one stage, he told "M" that he had been lying to "T" if he was "just playing the game and trying to impress them". The applicant replied that this was his means of extending the conversation, "like two blokes staying in a pub talking garbage" and he was comfortable during the conversation with "M" although a little scared, until he was shown a document. When he told "M" that he had not told "T" the truth, that statement was correct, but his statements to "M" concerning the deceased were false.

68 The prosecutor suggested to the applicant that it was always made clear that he could "walk away" at any stage. He responded that it needed to be remembered that he had "done time" in prison where there were members of gangs. He had heard "stories" and had seen the end results of such "goings-on". However, he then accepted that he chose not to "walk away" because of his desire for the money that he needed to pay for his wedding. The prosecutor then put to him the conversation in which he said to "T" that "if the boss says no, I'm quite happy to let $8,000 go back to him". That conversation, it was claimed, created quite a different impression concerning the significance that he attached to the money to the one then being given. He responded that it was his view at the time that, as everyone had acted in good faith, if he had to lose the $8,000 he was not going to complain about it.

69 The applicant agreed that the first time he became aware of the revived police interest in the death of the deceased was upon reading a newspaper article in which this was indicated. It was then pointed out that he met "T" on the following day and a conversation regarding DNA was held. The applicant stated that he could not remember the context of the conversation, but said that he was interested in DNA as he had always been inquisitive about medical science. When questioned as to what he meant when asking "T" about the cost of making things "disappear", the applicant stated that he was making a general enquiry and was not worried about renewed police interest. In relation to the polygraph test he was just curious as to how it worked. It was out of loyalty to the group that he did not go to the police station, give a DNA sample or undergo a lie detector test, when it became apparent that the Homicide Squad were interested in talking to him. When asked why he did not make an offer to "M" to deal with the situation simply by attending the offices of the Homicide Squad to give a DNA sample and undergo a polygraph test, he stated that it never crossed his mind to do so.

70 The applicant was asked whether he became concerned on reading the article in the "Herald Sun" entitled "DNA evidence could hold the key to solving a 20 year old child sex murder case". He replied that he did not but thought that it was interesting that the police were gathering DNA evidence as he had seen various television shows in which this was done. The prosecutor asked the applicant whether the article may have led him to consider the possibility that he might be a suspect. He replied that it made him think "Now hang on, I haven't been the only boarder there", and over the next couple of days he became alarmed when Detective Iddles left his business card. Had he been asked for a DNA sample he would have given it, but Iddles never approached him and, when he called him, Iddles was not available. All he knew was that, when he returned home on the day of Iddles' visit, his partner informed him that a detective had been there and had left his business card, indicating that he would like the applicant to contact him. He was not sure whether there was a mention of a polygraph test. It was then put to the applicant that those were the two matters about which he almost immediately sought advice from "T". He said that at that time he had not contacted Iddles and that he had telephoned "T" because he had been instructed by him that if he ever had any problems he was to talk to him first and then, if necessary, to "D" or "M".

71 In relation to the applicant's interview with Detective Senior Sergeant Lilley and Officer Rory O'Connor concerning the deceased, the applicant agreed that he did not make a formal statement and could not remember whether he signed anything or whether he was cautioned. It was put to the applicant that he had said that most of the information or detail he provided to "M" came from those two policemen. The applicant responded that he had been interviewed by many detectives since he was held in custody over the death of the deceased as well as the rape of another person and could not recall which of the detectives gave him the various pieces of information. He remembered being told that the deceased had a stab wound to the chest and that she had been sexually assaulted, although he stated that he was not certain as to the source of this knowledge.

72 When it was put to the applicant that "T", at no stage, threatened him, he claimed that in the course of a scenario that took place at the California Hotel on a so-called "photographic job", "T" told him that if anyone asked any questions he was not to tell anybody what had taken place or he would be hurt. The prosecutor pointed out that that was not on the tape recording of what transpired, to which the applicant replied that there were other activities in which they engaged that were not recorded.

73 The prosecutor asked the applicant whether he understood what "T" meant when he told him to be completely honest and "get everything out on the table and then work on a solution". The applicant said that he did not fully appreciate his meaning as there was so much happening around him and in his mind at the time. However, he did understand that, if "the boss" caught him out on something, he would "wipe him" and "walk away".

74 The applicant agreed that he not only understood that he had to tell the truth when he met with "M" at Crown Towers, but that he also was free to "walk away" if he chose to do so. But he also stated that it was his view that if he chose to "walk away", he would be letting "the side down" by not meeting with "the boss". It was then put to him that he was under no obligation to meet "the boss" at all, to which he responded that there was an obligation, as it was regarded as a job interview.

75 The applicant also agreed that he had had impressed upon him, prior to the meeting with "the boss", that trust, loyalty and honesty were the foundations of the organisation and that the applicant himself was no threat to it. The prosecutor then put to the applicant that it was his choice to stay to which the applicant agreed. It was also put to him that "M" made it clear that he could be replaced if he chose to go and that there was no threat made. The applicant agreed. He said that he was treating "M" as a normal human resource person who was interviewing a client for work. He was determined to get the money and decided to "bluff" his way through the interview. He did this by endeavouring to recall and relate what he had heard over the years about the circumstances of the child's death. Although he felt intimidated and was both fearful of being bashed and aware that lying could have serious consequences, he took a gamble and acted the role that he felt was required to achieve his objective.

76 The prosecutor asked the applicant whether it was part of his role when he said to "M", "20 years I've [lived] with this". He said that it was. In relation to his statement that "It was an accident that she died", the applicant stated that he was referring to Teresa Crowe at that time[14].

77 The applicant agreed that the information he put into his story did not come from the newspapers, the radio, the television or from the inquest, but Lilley or O'Connor or some other detectives as well as other sources that he did not wish to divulge.

78 He agreed that his reference in his conversation with "M" to playing with the deceased meant sexually assaulting her. He fabricated the detail that she wanted to scream and his mention of covering her head with a pillow was something that "came out [his] head". He stated that sex offenders, with whom he had spoken, often made reference to victims screaming and it was for this reason that this was included in his version. Similarly, with respect to his statement that he may have had the knife and "just shoved it into the side of her chest wall", he stated that he remembered one of the detectives making reference to a chest wound. He agreed that he probably did have a pocket knife at around that time. If it had a bottle opener on one end he would have carried it in his pocket, but ultimately he fabricated that detail. The prosecutor reminded the applicant that he had told "M" that he had a knife with him because he was going out to an hotel where there were some youngsters there who were giving him some trouble and he thought he may need a weapon, and queried him as to whether this was also fabricated. He replied "yes". It was put to him that he was able to demonstrate the knife's dimensions by utilising a "sort of can opener" in the hotel suite with "M". The applicant in response stated that he only made a guess as to the knife's size and length and used the implement as a guide.

79 The applicant in his "interview" with "M" had made reference to touching a small table. He did not know why he had made that statement which was a fabrication.

80 The applicant had told "M" that he did not know what killed the deceased and that it was probably the shock or suffocation. It was then put to him that the notes of Lilley and O'Connor made no reference to suffocation, but rather to strangulation, and he was asked about the source of this notion. He replied that it was probably from someone within the groups with which he associated in his Pentridge days.

81 With respect to his statement to "M" that the deceased was asleep when he entered her room, the applicant said he invented that detail. During the interview "M" suggested to the applicant that she must have woken up and the applicant replied that she did, when he was "fingering her". He based his acceptance of this suggestion on something that he had learned from conversations within the "Bluestone college".

82 It was pointed out that when "M" queried the applicant as to why he entered the premises from the house next door, the applicant corrected him, saying that he went over the fence from the back lane. In response, he said that he was aware that at that time the house next door was being renovated and that, whilst he resided in the house with the deceased and her mother, he did, on occasions, climb over the back fence to gain entry.

83 The applicant stated that he probably fabricated his references to times as he had no idea when the child was killed. Similarly, with respect to the period he was inside the deceased's home, he said that he had just invented details.

84 He was asked whether he invented the detail when he responded to "M's" comment that the DNA evidence was likely to be connected with the body, by saying that it was "probably the saliva from fingering her". He answered that he "would be making it all up" as he went along and that he obtained his information from conversations that he had whilst at "Pentridge Bluestone College". He claimed that he fabricated the details concerning the deceased wearing a pair of pyjamas and that he just pulled her pants down. His comments relating to the infliction of a knife wound to the chest were also fabricated and he had not acquired that information from the police at any stage prior to that meeting with "M".

85 He asserted that he either fabricated his claim to have covered the deceased with her bed clothes or had obtained this during his "Pentridge days". He also agreed that the police had not told him that the child was so covered.

86 The prosecutor asked the applicant whether he had read the newspaper article in which it had been stated that the deceased had been strangled. He said that he had. The prosecutor then put to the applicant that in his "interview" with "M" he claimed that he had suffocated her. The applicant stated that that was another fabrication.

87 In relation to the circumstances of his arrest, the applicant said that he understood that he was in the hands of the Homicide Squad, but, as "M" had indicated to him that he had corrupt associates in the police force, he was not sure whether they were genuine or corrupt members and was trying to adhere to the story that he told "M". The prosecutor then outlined what he had said in the course of his interview and queried why, if the interview was seen by the applicant as a "test" by "M", did he not tell the same story that he had given "M" an hour earlier. The applicant stated that he was dumbfounded by what was happening.

The Trial

The Case for the Prosecution

88 There was, it was said, no issue as to the fact that the deceased was killed, on 21 December 1982, by someone who smothered and stabbed her, when he crept into her bedroom during the night. If the jury was satisfied as to the reliability of the admissions made by the applicant, there was no issue that it was he who performed those acts.

89 However, counsel pointed out, the Crown also had to prove that the acts that caused the death were of a conscious and voluntary kind. This arose as an issue due to the applicant's assertion to "M" that he was "drunk" at the time. However, the prosecutor dismissed this possibility as nonsense, stating that although the applicant's conduct may have been influenced by the consumption of alcohol, it did not follow that he was not acting consciously and voluntarily or that he did not intend to kill her or cause really serious injury, for the evidence demonstrated otherwise.

90 The fundamental issue in the case, the prosecutor submitted, was whether the admissions of the applicant were truthful and reliable. He then directed attention to the following considerations:

1. It was apparent, he asserted, that the person who was responsible for the crime clearly knew the lay out of the premises, how to gain entry, where the deceased slept and was able to negotiate, in darkness, a route through the yard, the beaded curtains (which jangled when disturbed), past the hanging baskets and did not arouse any barking from the two pet dogs; the applicant had lived in the home of the deceased for nine months and thus had all the requisite knowledge and ability to navigate his way through the house.

2. The applicant confessed twice; first to the undercover operatives because he believed he could get an advantage from covering up his crime and, secondly, at the Homicide Squad's headquarters when he appreciated that he inculpated himself.

3. The applicant provided great detail, most of which was correct and would only be known to someone intimately connected with the events.

91 There was no dispute, he accepted, that the undercover operatives tricked the applicant but, he continued, they were not acting illegally or improperly in any way and there was nothing that could sensibly cast doubt upon the reliability of his admissions to them.

92 During the course of the scenarios, the applicant was offered a role in "criminal activities", for which he was paid, with the promise of more money in the future. Counsel argued that the applicant took part in the activities eagerly and enthusiastically, but emphasized the need for the jury to exercise a degree of care so as not to prejudice their minds to the fact that he was prepared to engage in criminal activity. However, his conduct in this regard was relevant in relation to his relationship with the operatives and also as to whether or not he may have been intimidated by them. There was no suggestion of any fear induced or threat made by any of those operatives and, when their interactions and conversations were viewed in context, there could be no doubt he was impressed by the organisation.

93 Counsel then outlined the factors that, he submitted, acted as catalysts to the applicant's ultimate preparedness to confess. These were: "the Age" article (engineered by the police) that he had read, which referred to the revival of the investigation and the discovery that a member of the Homicide Squad, Iddles, had visited his home and left his business card. When the applicant became aware that the visit concerned a request for a DNA swab and lie detector test, he rang "T" in a panicked state. He did not go to the police station and offer to take the tests, as he could not risk exposing himself. He argued that the applicant needed to remain connected to "the gang" and avail himself of their protection.

94 Throughout the applicant's conversations with "T", two things, the prosecutor contended, were made clear to him. First, he had a choice as to whether or not he wanted to be involved and secondly, he had to be truthful in his dealings with gang members. These were emphasised time and time again. The gang's stated reason for such honesty being required was that if false information was given, the whole organisation could be threatened but, if correct and complete information was given, "the boss" had the ability to "fix things".

95 Counsel asked rhetorically why, if the applicant had nothing to fear did he not make the choice to undergo both tests rather than rely upon "the boss" to extricate him from his predicament. He then provided the answer that the applicant was obviously fearful of the possibility that he may have left something at the scene that could connect him with the child's death. Shortly put, he could not afford to separate from the group who were telling him that they could "fix things". The prosecutor then invited the jury to consider the possibility that a person would confess to the commission of one of the vilest crimes imaginable for other than the most compelling of reasons.

96 When regard was had to the detail the applicant was able to provide concerning events with which he claimed not to have been involved and that had occurred 20 years earlier, it was apparent that his admission of guilt was honest and reliable, counsel continued. Although it was conceded that the applicant had resided in the deceased's home for some nine months, he had not, at the time of the offence, lived there for three months, and yet he was able to give a description of where everything was situated and how he effected entry on the night. He indicated that the child was asleep when he entered her room and said that she awoke when he "fingered" her. He mentioned that her mother was in her room and described the knife that he used. He expressed concerns that he may have inadvertently left behind its scabbard as it might hold a clue against him. The prosecutor submitted that this was an extraordinarily elaborate story, if it were made up on the spot. The applicant also spoke of the possibility that the police may have obtained DNA from his saliva when he licked his finger and inserted it into the child. The applicant also stated that he was almost certain that he had not left any of his semen behind. This, the prosecutor argued, was consistent with the scientific findings.

97 With respect to questions asked by "M" concerning whether "blood spurted out everywhere", counsel pointed out that the applicant said "no, no". This, counsel asserted, was also consistent with the crime scene. The applicant stated that he pulled the sheet up to the chin of the deceased. That too, was correct.

98 The prosecutor dismissed the defence argument that the applicant obtained all his information from the police, pointing out that many police members were called in the trial and all swore that they did not release any information to the applicant. The most that was disclosed, counsel submitted, came from O'Connor and Lilley, who, when they spoke to the applicant, mentioned that the deceased had been strangled, stabbed and sexually assaulted. However, this, it was pointed out, was not what the applicant said to "M" in his interview.

99 The prosecutor submitted that it was apparent that the applicant possessed detailed knowledge of a special kind about what had happened. For instance, he was quite clear that he pulled the sheet up to the deceased's chin. This was correct as that was how she was found by her mother in the morning. This detail was not reported in any of the papers. From where did he obtain this piece of information, he asked. Similarly, the absence of any spurting of blood was not reported in any of the papers either. The applicant said that he had digitally raped the deceased but this was never referred to in any of the published articles and the most that could be gleaned about this possibility could be found in a report from the Coroner's Court which made reference to a wound, but contained no mention of a digital rape. With respect to the applicant's statement that he suffocated the deceased with a pillow, the prosecutor submitted that this was supported by the evidence of the pathologist, Dr Lynch. It was also worth noting, he argued, that the applicant stated the deceased did not struggle. This evidence, counsel argued, was consistent with the evidence.

100 The prosecutor also conceded one error in the applicant's version, relating to the deceased's pyjamas. The applicant maintained, both to "M" and in the record of interview, that he left the child's pyjamas on her body. However, the evidence indicated that she had been stripped and her pyjamas were found behind the back of the bed. Counsel submitted that, although it was speculative, the applicant may have forgotten about this relatively small matter which could not be seen to cast doubt upon the reliability of his admissions.

101 With respect to the admissions that the applicant made to Homicide Squad detectives Iddles and Day, counsel addressed the question whether the applicant believed that he was being tested further by "M". The evidence was clear, he submitted, that when the applicant was finally arrested, the officers identified themselves, cautioned him and proceeded to record their interview with him. He could, it was said, have been in no doubt that he was in the hands of the Homicide Squad. He began to confess and provided some detail. Counsel continued that, if the applicant thought that this was a part of a test run by "M", he would have related the same story.

102 The prosecutor drew attention to the applicant's body language and voice tone as the video recording of the 6 June 2002 interview, he suggested, was indicative of a man who realised he had "been done"[15].

The Case for the Defence

103 Counsel for the applicant submitted that there was not a "squeak" of evidence against his client apart from the so called "confessions" and there was more than a doubt about his guilt, as the applicant was not the "right bloke". Nevertheless the police, thinking that they had identified the perpetrator, decided to secure a confession from him. They set up an operation directed solely to achieving this objective, adopting tactics that were fraught with the possibility of injustice.

104 Counsel argued that it was apparent that the applicant confessed to "M" not only because he thought that it was in his interest to do so but because he believed that he was required to make the admission. The jury, he contended, could not exclude the reasonable possibility that his client wanted to please "the boss" and become a member of the organisation, both for the financial rewards and the friendship offered.

105 "M's" "spin" on the operation was that he merely provided the applicant with opportunities to confess, but that ignored the pressures deliberately created by him. Counsel submitted that "T" was told a dozen times by the applicant that he was not responsible for the child's death, but "bit by bit, disbelief by disbelief, they made it clear to him that that was the wrong answer", and by the end of the process "M" was telling him that he did not believe him either.

106 Counsel submitted that the applicant was short of money at the time the scenarios were staged. He made it clear to "T" that he was "chasing a quid" and "T" offered him not only financial rewards but friendship. The applicant was a minor player who was being given glimpses of great opportunities. He was shown thousands of dollars being handed over in various scenarios and offered the prospect of obtaining a false passport in order to go overseas to escape the police. The display of money, counsel argued, was a real problem in the Crown's case as there was a clear danger that a person in the applicant's position might say what he thought that those he was endeavouring to impress wanted to hear.

107 The scenario concerning the meeting behind the St Kilda Road Police Complex with a supposedly corrupt police member, was important for more than one reason, counsel argued, particularly when regard was had to the fact that the applicant was taken there for his second interview. He submitted that his client was taken "back to the back gate, the gateway to the crooked copper, the gateway of corruption".

108 With respect to the newspaper article scenario, counsel submitted that "T" was clearly concerned to put that article in front of the applicant. The headline was manipulative and contained the clear assertion that the police did have DNA when in fact they did not. This whole scenario, counsel suggested, was designed to instil in the applicant a sense of panic and to make him think he was in a deal of trouble when he was not. This type of scare tactic, counsel argued, rendered the confession suspect as it created an environment in which unreliable statements could be made.

109 The applicant asked "T" whether he should allow the police to perform a DNA test, but rather than agree to this, "T" effectively "blocked" the adoption of this course by responding "We'll just do it one thing at a time. The boss can fix anything".

110 Counsel submitted that it was clear that the applicant's partner was also troubled by the investigation. This was causing the applicant understandable concern, not because he was guilty, but because it was embarrassing him in his efforts to join the gang.

111 There were two factors of importance in the lead up to his interview with "M", counsel argued. The first was the deliberately developed and increasing sense of crisis and crucial importance about that meeting, and the second was that it put into sharp relief the Crown's reliance upon the expectation of the applicant to tell the version of the truth that the Crown wanted elicited. Counsel submitted that when he questioned "M" about the dangers of the operation, including the possibility that somebody might say what he thought "the boss" wanted to hear, "M"[16] responded that that risk was minimal as the subject was told that he could always walk away and that he had to tell the truth. Counsel dismissed these measures as hopelessly inadequate and argued that the applicant told them the truth a dozen times when he said that he did not kill Bonnie Clarke but, on each occasion, it was made clear that he was not believed.

112 Counsel submitted that the applicant's admissions, when he was finally arrested, were made because he was under a complete misapprehension as to the true situation. This was hardly surprising in view of the extent to which he had been manipulated and misled.

113 Counsel then turned to what he asserted were problems associated with the interview between "M" and the applicant, problems which, it was argued, tainted the reliability of statements made. He pointed out that "M" at one stage had an imaginary conversation with someone on the phone which was designed to make him appear to the applicant as assertive and aggressive. "M's" reference to "the boys" being "downstairs" was a reminder of their presence and there was also the intimidatory tactic of telling the applicant to turn off his phone and remove the battery. During the "job interview", the applicant, it was submitted, did his best to secure "M's" acceptance. In turn "M's" comments that he was "red, red,... red hot, right", constituted another attempt to pressure the applicant who wanted to be a part of the organisation and to whom it was made clear that the continuing investigation constituted an obstacle to his membership.

114 Counsel submitted that "M's" positive assertion concerning the DNA was another attempt to panic the applicant, and it was designed to make the applicant think that he had to act now if he wanted to secure the aid of "the boss".

115 The submission was that that the applicant was "crunched". On the one hand, he was being offered the prospect of large amounts of money and friendship, but on the other, there was an implied threat in the background. When it came to the actual interview, "M" told him what he wanted to hear, rejected the applicant's repeated denials and effectively told him that if "you keep denying it, you're out of the gang".

116 Counsel argued that the admissions made by his client when arrested were tainted by what had happened earlier and the continued deceptive conduct of the police involved in the lead up to the arrest. He submitted that the applicant should have been told, from the outset, that they had a tape in which he confessed to his involvement in the deceased's death. As both interviews were conducted in a "fantasy world", the risk of "fantasy answers" was a real one. It was argued that at the time of the interview in the Homicide Squad offices, the applicant was under the impression that "the boss was still working" and would deal with the matter. He expected to meet a "crooked" policeman at the back door of the Complex and although he did meet policemen at the back door, he thought that they were there to help him. He was under this impression as neither the operatives who took him to the station, nor Day and Iddles, dispelled that myth. The police, counsel argued, should have not have left the "fantasy hanging in the air". He submitted that the jury should accept that the applicant was nursing a hope that "M" would still be able to assist him. It was not significant that there were variations in his version as it was apparent that he did not know what he was talking about.

117 Counsel submitted that many details of the killing had been released to the public and pointed to the evidence of Day that he was simply not in a position to rule out that any particular detail was out in the public domain. The applicant's "getting it right on some details" needed to be viewed in that context, and bearing in mind that if he falsely confessed to serve his purpose he could reasonably be assumed to have included as much detail as he could to make it convincing. It needed to be remembered, counsel argued, that as he had lived in the house where the crime was committed, he was aware of its layout and knew how the deceased would appear when she was asleep. He also could be expected to know that she slept with a light on, the blind down and the window shut.

118 Counsel outlined some features about the evidence which, he asserted, were "quite troubling". These included:

1. The fact that the deceased was stripped of all of her clothes and her pyjamas were found down the side of the bed up against the wall. The applicant, counsel submitted, did not say that he stripped her of her pyjamas and when Day asked him to explain why the deceased's pyjamas were not found on her person, the applicant responded that he could not explain it and that when he left she was wearing them. The fact that the pyjamas were stuffed behind the bed was never mentioned by the applicant.

2. The evidence seemed to suggest that the deceased was grabbed by the throat due to the presence of four bruises to her neck. Counsel submitted that the applicant's version of events did not explain the deceased's injuries as he stated that he only placed a pillow over her face and did not put his fingers around her throat.

3. The evidence indicated that the deceased's pyjamas were cut off by the assailant and yet the applicant made no reference to that aspect in his confessions. Counsel dismissed the prosecutor's hypothesis that the applicant did not admit to that detail out of shame, as unsustainable when regard was had to the fact that the applicant admitted that he raped, stabbed and smothered a six year old girl in her own bed.

4. A dispute existed between the experts as to whether the wounds on the deceased were caused by a knife or scissors. Pauline Henthorn, the original expert in the case, although not present at the trial, did not rule out the possibility that a knife was used, but expressed a clear preference for the weapon being scissors. Counsel argued that it appeared the killer was armed with a pair of scissors and if that was the case, then it raised another problem, for the applicant spoke of a knife (he stated it was a bread knife at one point and then later a Wiltshire StaySharp knife), not scissors.

5. The applicant stated there was virtually no blood or bleeding when he stabbed the deceased in the chest. Counsel argued this was nonsense as there was blood present on the body. There was a claim advanced by the prosecution that there had been cleaning undertaken at the scene by the assailant. However, the applicant stated that although he may have grabbed something to wipe the door handles, he did not think he had cleaned up the deceased. The evidence of Henry Huggins to the effect that there was evidence of water on the bed, counsel argued, added weight to the suggestion that the killer did in fact try to clean the body, and yet the applicant stated that he did not.

6. Although the applicant said that he had digitally penetrated the child, according to the evidence of the pathologists, Dr Lynch and Dr Odell, it was clear that penetration could have been achieved by a number of objects and not exclusively by use of the assailant's fingers.

119 Counsel submitted that the applicant's ability to give "pretty good details" about how he got into the house (which included climbing the back fence, entering through the door, weaving through hanging plants and passing through the lounge), could provide no assistance as the various features of the house were present when he resided there.

120 In summary, he submitted, the proper verdict was not guilty.

The Grounds

Ground 1

121 Two arguments were advanced in support of this ground.

122 First, it was argued, as in R. v. Tofilau[17], that the inculpatory statements made by the applicant to "M" were preceded by an inducement or inducements held out by a person in authority that had not been removed before the statements were made. For the reasons given in Tofilau, this contention must be rejected.

123 Secondly, it was argued that the trial judge fell into error in not rejecting the admission of the evidence by reason of the failure of the prosecution to satisfy the test of basal voluntariness.

124 It is apparent from his Honour's Ruling that this question was given very serious consideration. After setting out the submissions of defence counsel, which were essentially the same as those presented in this Court, he stated -

"I have listened to and watched the video tape of the discussion between the accused and 'M' with care. I could detect nothing in the tone of 'M' which suggested any physical or verbal threat. Rather, it appears to me that 'M' made it clear that the accused could leave at any time and it would be a matter of no concern to 'M'. Furthermore, tapes of discussions had with 'T' leading up to the meeting with 'M' reveal no suggestion of threat; rather, they reveal a cordial relationship between the two persons. Indeed, the accused said in evidence that 'T' 'seemed a very open and honest bloke'. Later in cross-examination, the accused said, 'I had taken a liking to 'T' and I took a liking to 'D'. They were up front as far as I was concerned and they were great to...be able to sit down and talk with.'

---

The accused was asked by [counsel] why he made an admission to 'M' 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.'

There is no suggestion made by the accused in this statement that he felt pressure or coercion from 'M'. 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 'M', 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. 'M', it was an accident that she died', I do not consider that the admission was involuntary. At all times 'M' 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 'M' 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 'M' the truth. He chose the latter course.

Indeed, the evidence of the accused given before me was that he had that choice."

His Honour then set out a passage in the cross-examination of the applicant and continued.

"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 'M' by choice, and that he was weighing up his choices. In the end he made a choice of his own free will to tell 'M' 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."

125 His Honour's findings and the conclusion reached by him were clearly open on the evidence.

Grounds 2 and 3

126 These grounds were argued together and in support of them, it was submitted that:

(a) The statements were made in circumstances that rendered them inherently unreliable and calculated to elicit an untrue admission of guilt.

(b) The circumstances in which the statements were made must inevitably have caused the applicant to suffer severe forensic disadvantage as they involved the implication that he had serious criminal propensities.

(c) The admission of the evidence was both unfair and contrary to public policy.

127 The trial judge addressed each of these contentions in his ruling. With respect to (a) he said -

"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 'M' in the criminal destruction of or interference in DNA sampling, in particular.

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".

He set out the prosecution contentions with respect to the indicators of reliability which were, in substance, the same as those set out earlier in this judgment and continued -

"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 'M' 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.

...

... I have looked carefully at and listened to the video-tape of both the discussion had by the accused with 'M' and the admissions made to Iddles and Day. Whilst it is true, as [counsel for the accused] 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.

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."

128 I have outlined earlier in this judgment what appear to me to be the significant parts of the evidence and the thrust of the respective submissions that were presented to the judge and jury with respect to them. This has been done in order to make clear that the issue of the possible inherent unreliability of the applicant's statements was clearly to the forefront of the minds of the judge and counsel and that its importance must be taken to have been appreciated by the jury. Without setting out the various matters seriatim, for they can be seen to emerge from the evidence and submissions, it is, I consider, apparent upon consideration of the material that there was much to support the reliability of the applicant's admissions to "M" and that his Honour was correct in rejecting the submission that the evidence should be excluded on this basis.

129 Addressing (b), his Honour recognized that the admission of the evidence gave rise to "a real issue of prejudice" and that it was apparent that the applicant would suffer some degree of forensic disadvantage as a consequence of the exposure of his criminal propensities and possible exposure of part of his criminal history.

130 There can be no doubt that the trial judge was conscious of the need to ensure that the applicant was not subjected to a trial that was unfair in all of the circumstances. His approach, which he made clear, involved a careful balancing of the relevant considerations. These considerations included: an assessment of the probative value of the evidence; some editing of the material in order to confine what was presented before the jury to what was really required for the proper presentation of the prosecution case; the provision of clear instructions to the jury as to the use to which the evidence could properly be put; and his indication of preparedness to revisit the matter, if necessary, in the light of developments in the trial. This approach was appropriate in the circumstances.

131 I am far from persuaded that he fell into error in rejecting counsel's submission on this aspect.

132 Finally, with respect to (c) his Honour accepted that -

"...the courts should be zealous to ensure that covert operations of the type undertaken in this case should be scrutinised carefully."

"...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."

133 While expressing some concerns about the conduct of the operatives, he concluded that the conduct was not such as to require the exclusion of the evidence. This issue has also been the subject of consideration in Tofilau and there is no need to repeat what was stated there.

134 In summary, there is nothing in his Honour's Ruling itself, to be inferred from the circumstances or manner in which the evidence was secured, or that arises from his conclusion, which suggests that his exercise of discretion miscarried.

135 These grounds must fail.

Grounds 4 - 6

136 These grounds need not be addressed as reliance was to be placed on them only if one of the other grounds succeeded.

137 It follows that the application for leave to appeal against conviction should be refused.

Application for Leave to Appeal against Sentence

138 After hearing a plea in mitigation of penalty, the applicant was, on 31 December 2004, sentenced to imprisonment for life, with the period before which he would become eligible for parole being fixed at 25 years.

139 He now seeks leave to appeal against that sentence on the grounds that:

1. The sentence was manifestly excessive.

2. The learned trial judge erred in failing to give any or sufficient weight to the following factors:

(a) the evident rehabilitation of the applicant.

(b) the expert evidence that the applicant no longer posed a danger to the community.

(c) the demonstrated ability of the applicant to avoid sexual or violent offending in the community since 1992.

(d) the limited intellect of the applicant.

3. The learned trial judge erred in giving weight to specific deterrence.

4. The learned trial judge erred in failing to mitigate the sentence by reference to the time served in custody for offences committed at around the same time as the instant offence.

5. The learned trial judge erred in failing to give any or sufficient weight to:

(a) the applicant's age at the time of sentence;

(b) the applicant's indifferent health and reduced life expectancy;

(c) the conditions of hardship under which the applicant is likely to serve his sentence.

Grounds 2 to 5 were relied upon as particulars of ground 1 and will be addressed as such.

140 Although the applicant had no significant prior convictions, he had, on 23 July 1984, been found guilty of the manslaughter of Teresa Crowe, whose death took place approximately 18 months before that of Bonnie Clarke. He was, after a successful appeal to the Court of Criminal Appeal, against the severity of the sentence initially imposed, sentenced to imprisonment for nine years with a non-parole period of seven years for that offence.

141 He had also been sentenced in the County Court, in December 1984, for rape with aggravating circumstances committed against a young woman, on 26 August 1983. After an appeal by the Director of Public Prosecutions, that sentence was increased by the Court of Criminal Appeal to one of imprisonment for 10 years with a non-parole period of eight years. The Court directed that four years of that sentence was to be served concurrently with that earlier imposed by it for the other offence. The applicant was released in 1992 and remained at large until arrested in relation to the present matter.

142 In support of what was effectively the sole ground of this application, counsel appearing on the applicant's behalf drew the attention of the Court to a number of findings of fact made by the sentencing judge. They included the following:

(a) the offence for which the applicant fell to be sentenced was not premeditated or form part of any sexual "thrill";

(b) the applicant's interference with the crime scene was a result of panic;

(c) the applicant had, subsequent to the commission of the offence, served a period of imprisonment from 1984 to 1992 in respect of subsequent convictions and following his release had demonstrated a degree of rehabilitation;

(d) although the applicant's subsequent convictions were relevant, they occurred between 1980 and 1983 when he was aged between 25 and 28 years and that he was being sentenced at the age of 49 years for a crime he had committed many years before;

(e) the applicant was in a state of ill-health at the time the sentence was being imposed on him;

(f) the applicant had been assessed as being of low intellect.

When regard is had to those matters and to others relied upon by the applicant's counsel at the time of the plea, which included -

(1) the applicant's assertion that he was heavily affected by alcohol at the time of the offending, although the offending itself was never admitted by him;

(2) that the applicant had significant health considerations including hypertension, migraines and a possible mild stroke in 2004;

(3) the applicant's family background, limited education due to intellectual limitations and his work history;

(4) the effort made by the applicant in prison, between 1984 and 1992, to improve his education.

(5) his involvement in community work following his release which formed part of and demonstrated his determination to lead a law abiding lifestyle thereafter; and

(6) the relationship that he had developed with his fiancée, Lynn Wade, in the period prior to his arrest for this offence;

both the head sentence and non-parole period fixed, it was submitted, could be seen to be manifestly excessive.

143 All of these considerations were the subject of specific reference by the sentencing judge and there is nothing in his remarks that gives rise to the suggestion that he may not have taken them properly into account. However, as the sentencing judge pointed out, there were a number of extremely disturbing features concerning the offence and the applicant's personal situation to which regard needed also to be had.

144 His Honour adverted to the fact that:

" ... you have now been convicted of serious offences involving aberrant sexual behaviour in relation to three separate events resulting in loss of life on two occasions. On each occasion a knife was used by you either before or after the principal offence. Although you have no relevant prior convictions as such it is noted that the horror of the death of Teresa Crowe did not deter you from the murder of Bonnie Clarke. Likewise, the horrendous death of Bonnie Clarke did not cause you such remorse or affection so as to prevent your later brutal attack upon another young woman. I make it clear that you are not to be punished for these other offences. You have been sentenced for those offences and you have served your punishment and/or imprisonment in relation to them. Their only relevance is in relation to the protection of the community from you and the question of your rehabilitation and the question of your remorse."[18]

145 With respect to the extent of the applicant's rehabilitation, although it appears clear that he had made some progress, having secured and held employment, developed a relationship with his fiancée and limited his alcohol consumption, the sentencing judge adverted to the evidence in the trial that he was quite prepared to engage in a wide range of serious criminal activities as recently as 2002. Against that background and the psychiatric assessments that had been earlier made of the applicant's limited insights and demonstrated propensities, his Honour was clearly entitled to form the opinion that the applicant remained a serious danger to the community.

146 Reducing the matter to its simplest components, the applicant, who was familiar with the premises (as he had earlier lived there), entered the house in which the deceased lived with her mother by climbing over a back fence and entering through a door that was unlocked to allow the passage of family pets. He did so for the purpose of sexually assaulting a six year old girl. To achieve his objective he needed to negotiate a darkened hallway in which there were hanging baskets and other obstacles. This suggests that, whilst he may well have been affected by alcohol at the time, it is highly unlikely that he was as intoxicated as he subsequently claimed. He entered the room of the child and offended against her by inserting his fingers into her vagina. When she woke and tried to scream, in order to avoid being discovered, he covered her head with a pillow until her hand rose and then fell to the bedside. Then, to ensure that she was dead, he stabbed her in the chest with a knife that he had with him, although I must add that there was no evidence that he was carrying it for this purpose. Then, in further self-protection, albeit in a panic, he endeavoured to remove indications of his presence. The crime remained unsolved for over 20 years during which time the unfortunate mother of the deceased had to live with the memory of the discovery of her child dead in bed. She also had to live for a substantial period of time under some suspicion that she was the perpetrator of an horrendous crime.

147 Although the sentencing judge accepted that, following his release from prison, there had been some rehabilitation demonstrated by the applicant there was nothing to indicate the presence of any remorse for what he had done. Further, there were concerns about the degree of insight he possessed into his own conduct and his level of personal responsibility for the death of the child. The evidence suggested that he still tended to avoid accepting his blameworthiness by reference to his claimed state of intoxication. His Honour was conscious of the time that had passed since the commission of the offence and the significance that would normally be attributed to the fact that sentence was being imposed long after the crime was committed, with all the ramifications that could follow.

148 However, it is clear enough that that delay arose not from any failure on the part of the investigating police or the legal process, but from the applicant's concealment of his conduct for many years.

149 The sentencing judge, when addressing the applicant on this aspect, stated:

"In addition to the issue of the protection of the community from you the matter of general deterrence looms large. Those who commit outrageous crimes against children must know that no matter how long it takes for them to be apprehended and brought to justice, they will suffer severe consequences. Yours is not a case of some youthful indiscretion discovered years later after a blameless life and which requires a merciful disposition. Yours is a case where your evil and monstrous conduct was kept secret by you for many years. Those who are disposed to commit such terrible crimes must be under no illusion other than that even if their criminality is brought to light many years later punishment can be expected to be commensurate with the gravity and nature of the crime."[19]

I agree.

150 Notwithstanding the matters which were raised in mitigation of penalty before his Honour and repeated in this Court, and in particular the limited rehabilitation that the applicant had demonstrated since his release from custody in 1992, I am of the view that neither the head sentence nor the non-parole period fixed by his Honour could be described as outside the range of those available in the proper exercise of sentencing discretion.

151 Accordingly I would refuse this application.

[1] Frank Fordyce, the Victorian Accountant for Greater Union Cinemas, stated that the records of the company indicated that the applicant was employed by it in December 1982 and that: on Monday 20 December 1982, he worked from 9.25 a.m. to 4.25 p.m., while on Tuesday 21 December 1982, he had a rostered day off and did not return to work until Wednesday 22 December 1982.

[2] The medical practitioners who conducted the original examination and autopsy of the deceased were, by the time of the trial, deceased.

[3] Ms Henthorn was also no longer available to give evidence at the trial.

[4] Copies of digital photographs of the underpants were tendered as Exhibit "1".

[5] These articles were tendered as Exhibits "3", "4", "5", "6", "7", "8", "9" and "10".

[6] A copy of that article was tendered as Exhibit "C".

[7] The recording of the ensuing conversation was tendered as Exhibit "F" and it commenced at about 10.00 p.m.

[8] The recording of the ensuing conversation was tendered as Exhibit "F".

[9] The conversation between "T" and the applicant, up until the time the applicant was left alone with "M" in the Hotel room, was recorded and tendered as Exhibit "H".

[10] The recording of a subsequent conversation between the applicant and "M" in Room 2810 of the Crown Towers Hotel was tendered as Exhibit "K" during the trial.

[11] The fabricated document prepared for the occasion was tendered as Exhibit "M".

[12] Exhibit "N".

[13] The applicant's subsequent conversations with "T" were recorded and tendered as Exhibit "J".

[14] The applicant was, on 23 July 1984, convicted of the rape and manslaughter of Ms Crowe.

[15] Having viewed the video recording, I consider that there was force in this submission.

[16] The police operative who posed as "M" in the scenarios gave evidence at the trial under the same pseudonym.

[17] [2006] VSCA 40.

[18] Sentence T962-963.

[19] Sentence T964.