R v Dewhirst [2001] VSC 172

11. Later in the morning of 5 August, the accused was taken to the Sunshine Police Station. The entourage arrived about 11 a.m. and he was lodged in the cells pending interview.

14. Detective Senior Constable John Carmody told this court that at this stage, some 9 months after the shooting, no firearm had been recovered and the whereabouts of any firearm was unknown. Further, the police were seeking a group of approximately five offenders, not all of whose identities were known to police. Despite this latter assertion, it is clear on the material that the accused had provided investigating police with five names, including his own, all of which, apart from a man called "Skinny", were already known or could be checked by investigating police.

17. In subsequent conversations the accused maintained his original account of events, save that, in a formal record of interview which was commenced at 12.16 p.m. on the afternoon of 5 August, he effectively declined to name the names of the other participants. The accused's cooperation, however, extended to going with police to point out the house of one nominated co-offender, Armen Molic. At the conclusion of these activities the accused was charged with offences including attempted murder. At 3.18 p.m. he was again lodged in the cells. Thereafter, the impugned conversation occurred.

20. As to the attitude of the accused towards the police investigators, Mr Carmody was asked this question in the course of the voir dire:

Question: "When you were dealing with the accused, either in the conversations prior to the formal interview or during the formal interview, did you accept that he had been fully forthcoming and fully truthful with you?" Answer: "Yes, he was talking to us quite openly, yes."

24. Prior to the formal interview commencing, the accused had, as I have said, been lodged in the Sunshine cells. Here he made the acquaintance of a man who called himself David Wilson. Wilson informed the accused that he was in custody for seven days for car stealing. This was untrue. In fact, "David Wilson" was the pseudonym adopted by an undercover police officer placed in the cells to engage the accused in conversation.

27. It is important to trace the history of this placement. Apparently it was the brainchild of a Detective Sergeant Gregory Hewitt and, according to the depositional material, it was conceived as early as 30 July 1999. The strategy was frankly outlined by Mr Hewitt at the committal proceedings in this exchange.

Question: " And that was planned as long as a week beforehand, 30 July I think?" Answer: "That's right." Question: "Did you think that Mr Dewhirst was going to exercise his right not to talk to you during the interview, during the police interview?" Answer: "That was a possibility." Question: "And did you want somebody in the cells so that you could then try a different angle of getting information from him?" Answer: "No, it was planned regardless of what Mr Dewhirst either said or didn't say during his interview." Question: "Can you tell us why that was done?" Answer: "Just to try to obtain further material from Mr Dewhirst regarding any involvement he may have had in the Dome shooting or anything else he may have volunteered in the cells."

31. In the course of the voir dire, Mr Carmody spoke of the exercise in these terms.

Question: "Had any arrangement been made in so far as an undercover operative was concerned for that day?" Answer: "Yes, they were made." Question: "Firstly, what was the arrangement in broad terms?" Answer: "To expose the accused to an undercover operative." Question: "With what in mind?" Answer: "To establish identity of extra offenders, and location of exhibits, evidence, firearms."

35. At the committal proceeding the police officer Wilson was questioned as follows:

Question: "Were you ever told why it was that you were required particularly for this suspect and not for others? I appreciate you can only deal with one, but were you ever told why there is a priority in getting you and Mr Dewhirst together?" Answer: "No, I don't think so." Question: "Well, for instance, was it ever said to you 'He will never talk to us, the only way we are ever going to get anything out of him is that you talk to him in the cells'?" Answer: "Oh, that may have been said, yes, obviously." Question: "And indeed when you were in the cells were you expecting that he had not spoken to the police, not make admissions to them?"

39. Then there was an intervention from the magistrate and the question was repeated.

Question: "Was he expecting when he went into the cells that Mr Dewhirst would not make admissions to the police?" Answer: "I assumed that would be the case." Question: "So that your role then was to extract information from him which a normal police interrogation wouldn't, is that right?" Answer: "Yes."

43. On the evidence a conversation occurred between Mr Wilson and the accused at some time between 11.10 a.m. and 12.16 p.m. This conversation was not recorded and there was some dispute as to what was said, although it was common ground that the accused told Mr Wilson the reason for his detention. It also appears that Mr Wilson used the occasion to set up his criminal persona. Ultimately, I do not regard anything of significance as turning upon the precise terms of such conversation.

46. It seems that at some stage Mr Wilson himself was taken from the cells and informed that the accused had in fact responded to police questions. This preceded the second conversation in the cells, which was tape-recorded.

49. Mr Wilson was questioned at the committal hearing as to his role at this stage of proceedings. This was the exchange:

Question: "And given the fact that he did speak to the police and did not rely on his rights not to make any comment, what did you perceive your role to be when you were talking to him?" Answer: "To see what he had to say." Question: "Is this to see whether it was any different from what he told the police in the interview or ... ?" Answer: "Well, for starters, to see if he would talk. That's an assumption you can make. Some people don't talk. To see if he would talk, to see what he would say and to see ... " Question: "This is to you?" Answer: "Yes, and to see if I could glean any or as much as possible information from him in relation to the matter, whether he confirms what he has already said to the police or he says something different or, for instance, he may come up with the location of the firearm or clothing that was used during the assaults or - I was there to extract as much information as I could."

53. So much for the background to the recorded conversation. Without pausing to analyse it, I turn to the bases upon which its admission into evidence was opposed.

56. On behalf of the accused, Mr Lewis submitted that the material (which included admissions by the accused not only of involvement in the Dome fracas but involvement in the shooting itself) should be excluded as not having been voluntarily obtained. This submission relied upon such factors as the physical disparity between the accused and Mr Wilson, the former recovering from broken wrists and hence unable to defend himself against any attack or apprehended attack from the latter who presented as an ageing bikie with the accompanying aura of fear. Accordingly, it was submitted that despite the absence of any threats, the accused was fearful and felt compelled to answer Mr Wilson's questions. Indeed, the accused gave evidence to that effect.

59. Independent evidence of the interaction of the parties is provided by the tape recording. It negates any suggestion of a relationship and a conversation founded upon fear. Further, I do not accept the evidence of the accused to the contrary. No doubt there is a social pressure to speak to a cell mate wishing to engage in conversation, however that pressure does not govern either the extent of any conversation upon particular topics or the quantum of detail provided. Moreover, such pressure falls far short of any question of lack of voluntariness, assuming that concept to be applicable to the circumstances of this conversation. Whether such circumstances may be calculated to produce bragging, big-noting and other unreliable statements is of course another matter. In any event, this submission must fail.

62. The major thrust of Mr Lewis's submissions was that the impugned material ought to be excluded in the exercise of the public policy and/or the fairness discretions. The application of these legal principles to the type of fact situation encountered in the instant case is becoming the subject of an increasing number of cases. The most recent include R v. Swaffield; Pavic v. R [1998] HCA 1; (1998) 192 C.L.R. 159; R v. Heaney and Welsh (1998) 4 V.R. 636; R v. Roba [2000] VSC 96; 110 A.Crim.R. 245; and R v. Lewis (2001) 1 V.R. 290. It is not necessary in my view to restate the principles enunciated in these cases, although I incorporate by reference my comments on the law in Roba's case. It is also unnecessary to rely upon Canadian authorities such as R v. Broyles (1991) 3 R.C.S. 595 which have been adapted to the Australian legal culture in, for example, Pavic's case. I should add that one common theme in the authorities is that each case will turn on its own facts.

65. The statutory provisions which may be regarded as relevant to this issue are found in s.464 and following of the Crimes Act 1958. Those sections set out a regime applicable to the interrogation of suspects in custody by (inter alia) members of the police force (who fall within the definition of "investigating official"). It is a regime designed to safeguard the rights of suspected persons in a custodial setting. Such rights include (inter alia) the right to silence and the right of a person charged to be bailed or brought before a court within a reasonable time.

68. As was pointed out in the spirited argument advanced by Mr Morgan-Payler on behalf of the Crown, undercover police are excluded from the definition of investigating officials in this legislation and hence any obligation to comply with it. Nor is questioning of the type conducted in this case illegal. But that should not result, in my view, in the essential scheme of the Act directed towards safeguarding the rights of individuals being interrogated in custody being subverted or circumvented by the use of undercover police officers.

71. Of course, there will be cases where the use of such officers will be justified. They range from the dramatic R v. Franklin (an unreported decision of Vincent J on 23 July 1998), where the possibility existed that the victim of the alleged offence may have still been alive and there was an urgent need to determine his whereabouts; to R v. Leurs, where information about the identity and whereabouts of a man named "Mike", asserted to be an accessory after the fact to murder by the accused and who may have been in Surfers Paradise with a murder weapon, was required expeditiously. It is to be noted, however, that in both cases the objective of the further conversation was specific and the provision of further incriminating admissions was ancillary to the primary purpose. That was not the situation in the present case.

74. Any suggestion that this questioning was necessary to identify potential co -offenders does not accord with the facts as known and accepted by interviewing police and the claim that it could have resulted in the location of the pistol involved, some nine months after the incident, is quite unconvincing.

77. In the instant case, the purpose of planting the undercover police officer in the cells was to requestion the accused upon all aspects of this incident, regardless of the fact that he had already been formally interviewed and charged with relevant offences. It was to be a second interview, planned in advance, to be conducted without any of the normal legal restraints and irrespective of what the accused had already told investigating police. Any assertion to the contrary is belied by the passages of evidence I have quoted.

80. It was argued that the police do not have to accept the first version of events proffered by an accused. No doubt that is correct. But it does not follow that they should be permitted to effectively conduct a second interview devoid of legislative safeguards. I use the term "interview" advisedly because what Mr Wilson did was to question the accused about aspects of the incident itself, drawing the conversation back to that topic whenever it had gone off at a tangent. What occurred, in my view, was far more than merely facilitating the accused in his volunteering an account of events. As Mr Morgan-Payler correctly pointed out, the interview engaged in by Mr Wilson lacks the plethora of vices which characterised the Roba interview. However, in the circumstances to which I have averted, that is beside the point.

83. For completeness, I should add that the fact that the accused had earlier declined to exercise his right to silence and had answered police questions does not, in my view, provide a warrant to surreptitiously reinterview him without regard to those rights in an unstructured and informal setting.

86. Accordingly, I have concluded that what occurred constituted, at the very least, a reckless disregard of the accused's rights sufficient on any balancing exercise to exclude the taped conversation on the grounds of public policy. In light of this conclusion, it is unnecessary to embark upon an analysis of the tape-recorded material or canvass any circumstances which may be relevant to the issue of unfairness.

89. I finish by reiterating what I said in Roba's case:

"The courts ... will be vigilant to ensure that the legislative safeguards accorded to suspects are not circumvented as a matter of mere investigative convenience or expediency."

93. It follows from what I have said that the tape-recorded conversation will be excluded from evidence.