R v Drummond

2 The Director of Public Prosecutions has jointly indicted Bradley James Walters and Brett Ross Drummond with charges of the murder of Singer.

3 A joint trial of the two men was unable to proceed in September last year but Walters was separately tried and convicted of murder. Drummond's trial is now fixed for hearing and two preliminary issues have been raised:

(1) whether a statement made by Drummond to police on the morning of Monday 3 October 2011 should be admitted in evidence; and

(2) whether covert recordings of conversations between Drummond and two undercover police made in the cells at Geelong Police Station after Drummond had been arrested, interviewed and charged should be admitted in evidence.

4 Singer's body was found in a lane adjacent to the hotel at about 11:00 pm on 2 October 2011. The next morning, police door-knocked the hotel and spoke to each of the residents. Detective Senior Constable Woodhead attended at the hotel at 8:25 am. He knocked on the door of Drummond's room and was invited in. They spoke concerning the death of Singer. Drummond's evidence was reduced to a handwritten statement which was read, and signed by Drummond at 8:50 am. Woodhead says that when he spoke with Drummond he appeared to be quite calm and relaxed. He was not fidgeting and was quite composed with his speech. Drummond told Woodhead he had been drinking the night before and did not hear a lot of what took place. The signed statement is as follows:

My full name is Brett Ross DRUMMOND and I am 45 years old today. I am currently living at Room 10 of the Sir Charles Hotham Hotel in Brougham Street, Geelong. I have been living there for the last 11 months.

I am working 5 days a week and not always in my room. The only person I really know who lives at the pub is Matty across the hall from me at Room 8.

On Sunday afternoon the 2nd of October, 2011 I was in my room. At around 4.00 p.m. I started watching the Rugby Grand Final on T.V. I was listening to a little bit of music before that. I was having a couple of quiet beers while watching the Rugby.

At some time during the night which I think was after the Rugby I heard some commotion. I don't know who it was or which room it was. It seemed to be in the residential area of the pub. Every now and then you hear some yelling going on. I don't get involved so I pretty much turned the volume up on the TV.

I was sort of half asleep anyway and after the Rugby finished around 6.30 - 7.00 p.m. I went to sleep. I woke up around 6.00 a.m. the next morning and heard some people so went out to see who it was. I saw a couple of police who told me not to use the bathroom. I didn't know what was going on.

I don't use the bathroom down the other end of the residential area as there is one right next to my room. I didn't ask any questions but presumed something bad had happened and saw some stuff on the T.V.

5 Subsequently, Drummond was arrested and formally interviewed on Wednesday 5 October 2011 at the Geelong Police Station. He gave the following account of events on the night of Singer's death:

1. 61 Alright. Now, Brett, as I previously mentioned just in the lead up here, I intend to speak to you in relation to the - murder of Edward Singer.
2. Yep.
3. 62 Which occurred on the 2nd of October, a couple of days ago, at the Sir Charles Hotham Hotel. Do you wish to give an account as to perhaps how you became involved in - in what occurred on that night?
4. Yep. I heard a bit of commotion. I think it was around - 'cos I wa-, wasn't watching the clock. You know, 6.30 or something. And proceeded - I just walked around the corner to have a look what was going on. And I didn't see anybody, then I've gone down to the corner. Right. And here was this bloke - 'cos I didn't even know - know his name. I never associated with him. You know. And just seen him a bit bloodied and so forth, you know. I - 'cos I seen - like, apparently he'd been shittin' on the floor and so forth, in - in the past. And I grabbed him by - by the top of his head, 'cos he was just drunk off his head, whatever, you know. And I just said, 'Take a look at yourself.' That was it. I said, 'You deserve to be' - just - you know, I was just a little bit angry. I didn't hurt him, though. I just said, 'You deserve to be thrown out of the window, mate.' But I didn't chuck him out the window. You know. And that was it. And I just said, 'You're a waste of space,' and I walked away. That was it. Then heard some more commotion and - like, 'cos I'd nearly - no. Yeah. 'Cos I was nearly, like, going to sleep. I was just tired, you know. And then when I've gone down again, I seen him just on the back balcony. That was it. And - 'cos I've had - done my first aid and that. And just checked for a pulse. And that was it. I'd seen his stomach was - you know, he was breathing. And I just said, 'You're a waste of space,' and I walked off. That was it. You know, but I'm - wasn't out to hurt him.

6 This account was subsequently amplified to describe throwing Singer's shoes out of the window of Singer's bedroom when Drummond first remonstrated with him. Essentially however Drummond maintained the account he first volunteered to police through an extended and thorough interrogation.

7 In the course of the record of interview Drummond was questioned about his initial statement.

1. 280 Is it true that you were spoken to by the police on the Monday?
2. Yeah.
3. 281 Why didn't you volunteer this to the police on Monday?
4. Cos - I don't know. I don't know. He said to me - yeah, well, I'm shocked and everything. And then I just said to myself, 'Oh shit, I've got to come out.' I had a feeling youse were gonna come and see me.
5. 282 Did you volunteer this to the police?
6. (NO AUDIBLE REPLY)
7. 283 Any of this to the police?
8. Mm. No. 'Cos I was scared.
9. 284 Of what?
10. ..... - of, like, hey, have I done something wrong? You know what I mean? I - I don't believe that I've done something wrong. I'm not a bad person, you know. That was all. I didn't know what to say. To - and that's the honest truth, you know.
11. 285 Were you asked some fairly direct questions about whether or not you had any knowledge about what happened to this particular bloke?
12. Yeah. ..... I said ---
13. 286 On Monday night.
14. But I said no.
15. 287 And why did you say no?
16. 'Cos I didn't know what happened.
17. 288 But you've - you've already ---?
18. No, this is ---
19. 289 You've - today, you've told us.
20. What I'm initially saying is when I ran into him. Grabbed him by the hair and that was it. And said - I seen the shoe or whatever it was. I didn't know what it was. And just threw it out the window and said ---
21. 290 Did you think it would ---?
22. 'That's where you need to go.'
23. 291 Be important ---?
24. But he ---
25. 292 Did you think ---?
26. I didn't chuck him out the window.
27. 293 Did you think at the time it would be important to tell the police that?
28. No, I didn't. I don't know why. You know. I just knew something bad had happened, but, you know, I didn't do - do that.

DETECTIVE SENIOR CONSTABLE WILLIAMS:

You said you were - - -?

1. I don't know.
2. 295 You said you're scared. What are you scared about?
3. It was just, like - well, a person - it was my birthday on Monday, you know, and here's a poor bloke's passed away. You know. I just had a feeling someone's done something wrong. But I wasn't sure who. That's all. You know. I guarantee you it wasn't me. I can guarantee.

8 The Crown contends that Drummond's initial police statement contains a significant lie. In particular, it contends that the statement that he went to sleep after the rugby final and slept through until about 6:00 am was deliberately untrue. I should interpolate that, apart from his own admissions, there is other evidence that Drummond confronted the deceased during the course of the night. That evidence supports the view that Drummond directly bashed the deceased in the course of the night and was present and abused the deceased when Walters inflicted substantial injuries to the deceased.

9 The defence submits that the statement cannot be categorised as containing a lie. Rather, it is submitted it simply omits to deal with the period between the time at which Drummond says he fell asleep and the time at which he says he woke up. In some circumstances, however, where an accused gives a detailed account of events to the police, the jury may be able to infer from the conscious omission of certain details that the accused implicitly admitted awareness of his guilt.[1] Moreover this is, in my view, a simpler case. I accept the Crown submission that the statement in its ordinary meaning is itself capable of being regarded by a jury as containing a lie.

10 I further accept that if a jury were satisfied that the statement was deliberately untruthful it might use such statement:

11 It will be for the jury to consider whether the only reasonable explanation to be inferred from the statement is that the accused knew he had been party to the murder of Singer. It will be necessary to give the jury an Edwards direction.[2] In my view, subject to an appropriate direction, the statement is admissible on the above basis.

12 The Crown case against Drummond is put on the basis that the jury should be satisfied either that he killed Singer in concert with Walters or at the very least that he aided and abetted Walters by assisting and encouraging Walters to inflict the fatal injuries over an extended course of assaults.

13 As I have already noted, Drummond participated in a recorded interview with police after his arrest on 5 October 2011. At the outset of that interview he was advised of his rights to obtain legal advice and that he was not obliged to answer questions. In the event, he obtained advice from a Legal Aid solicitor and then participated fully in the interview. He was further cautioned after each of a series of breaks in the interview and in effect reminded of his right to silence.

14 On 7 October 2011, two police undercover operatives were introduced into the cells of the Geelong Police Station and a series of covert recordings was made of conversations with Drummond over the course of some two hours on that day.

15 The Crown now seeks to adduce evidence of the covert recordings for four purposes:

(1) as evidencing the degree of animus Drummond felt towards Singer at the time of the killing;

(2) as evidencing admissions as to the circumstances of Singer's death;

(3) as evidencing a desire to speak to and influence the co-accused Walters; and

(4) as evidencing an intention to seek to arrange for an alleged eye witness R to change evidence (incriminating Drummond) which R had given police and/or to inflict revenge upon R for the giving of such evidence.

16 It must be observed at the outset that the recorded statements of Drummond are not confessional in character. Throughout the conversation with the undercover police, he steadfastly maintains that he did not kill Singer and that he had no contact with Singer on the night in question other than of the kind he describes in his record of interview.

17 Thus, early in the recorded conversations, Drummond volunteers the following explanation of why he is in the cells:

Brett: I got charged like for murder. But I didn't murder no cunt mate.

Jimmy: Why?

Brett: They say I pushed him. No, this is, 'cause over at the pub here, so.

Jimmy: Are you serious?

Brett: Yeah.

Jimmy: Here?

Brett: No, I didn't murder no-one. This bloke I know killed this cunt, right.

Jimmy: Yeah.

Brett: He like bashed him.

Jimmy: Yeah.

Brett: I come over -

Jimmy: Yeah.

Brett: 'Cause I heard this commotion, and I come over to check this dude out, you know. 'Cause he shat on the floor and everything this cunt. Like over at the pub. I grabbed him on the hair and just said, you know, what the fuck are you doin' mate, have a look at your self.

Jimmy: Yeah.

Brett: He was pissed off his head (inaudible).

Jimmy: Yeah, yeah, yeah.

Brett: Then (inaudible) hearing all this commotion goin' on. Come back and here's this bloke on the ground all smashed up, black and blue.

Jimmy: You're kidding.

Brett: And he, he was dead. Still, I checked his pulse 'cause I've done me first-aid.

Jimmy: Yeah.

Brett: And boom, some other dude at the pub was here when the, the D's were interviewing me

Jimmy: Yeah.

Brett: And he's dobbed on me, goin' that I was in there bashin' him and all this shit. And I did not bash nobody.

Jimmy: You're kidding. That's fucked. Are you serious?

Brett: I'm not a bad person dude.

18 In turn I accept that, as the above passage demonstrates, Drummond spoke voluntarily and freely.

19 On the other hand, he was repeatedly questioned about aspects of his account and I accept Mr Chadwick's submission that what occurred thereafter was functionally an interrogation.

20 Much of the interrogation was put on the basis that the police 'must have something more' than the evidence of the witness at the hotel (R) who had, in Drummond's words, 'dobbed' on him. The undercover police sought in effect to get Drummond to disclose more about the circumstances by continually probing what this something more might be. The following passage exemplifies this approach:

Jimmy: It's gotta be more than one person.

Brett: 'Cause I just said, you prove it.

Jimmy: Yeah, that's it.

Brett: He said - but I said, how the fuck's he gonna prove that he seen me in there. You prove that.

Jimmy: You just stick with it mate.

Brett: Yeah, yeah, for sure.

Jimmy: We saw on the news last week a guy got off. Did you see that? He got off, he admitted that he did it.

Brett: Yeah.

Jimmy: And he got off.

Brett: Yeah.

Jimmy: Did you see that?

Brett: Nah, nah, I didn't see it.

Jimmy: Oh, this, ah, Lebanese fellow. He even apparently he made like he, he told the coppers, I done it.

Brett: Yeah.

Jimmy: And he got off.

Brett: And he got off?

Jimmy: Yeah.

Brett: Yeah.

Kosta: It was in the paper last week man.

Brett: That's crazy.

Jimmy: You know, you just gotta stick - I don't know what he must've done. Obviously he had a good sort've a mouthpiece or what-not.

Brett: Mm.

Jimmy: But yeah bro, you can tell a good story and just stick with it.

Brett: Yeah, I'm sticking with what I said. I'm meant to (inaudible) it's the truth.

Jimmy: Yeah.

Brett: It's the truth. That's what occurred.

21 It is the Crown case that Drummond participated in the murder of Singer because of ill-feeling engendered by a series of episodes in which Singer defecated both in public areas of the hotel and in his own room at the hotel. There is evidence apart from the covert recordings:

• of episodes of defecation in the period leading up to the date of Singer's death;

• of concern expressed by Drummond for the hotel cleaner who had to clean up human faeces;

• of disgust being expressed by Drummond to his employer in terms which reinforced the extent to which the course of events angered him;

• of the landlord taking ineffectual steps to try and stop the defecation;

• of the discovery of excrement in the hotel on the day of Singer's death;

• of discussion between residents at the hotel including Drummond about the defecation on that day; and

• the location of excrement on the floor of the hotel after the killing.

22 Further, Drummond's record of interview makes clear not only his awareness of the history of defecation, but that he was aware that the deceased defecated on the floor on the day of his death, that Drummond was angered by this, and that he expressed his anger to the deceased by remonstrating with him both verbally and physically and throwing the deceased's shoes out the window.

23 The Crown submits that the flavour of Drummond's statements in the covert recordings demonstrates a degree of hatred and despisal of Singer which is probative of his motive to participate in the killing. In other words, the covert recordings materially amplify the case as to motive. For reasons I shall explain, I do not agree. It is first necessary however to quote a portion of the recordings which embodies the first most forceful expressions of the evidence in this regard. It follows on immediately from the passage I have last quoted:

Jimmy: The thing is these days you never know, like you fuckin' just give someone one and they fuckin' don't wake up. You know. Scary bro. You hear it on the news, just someone pushes someone. He fuckin' hits the ground he's dead.

Brett: They're gone.

Jimmy: You know, that changes the other guy's -

Brett: This dude was smashed, he'd been smashed.

Jimmy: Yeah, with like what with, with weapons or?

Brett: I don't know what it was man. He was fuckin' he was, blood all over him, black and blue.

Jimmy: Oh, fuck.

Brett: He was fuckin' not in a good way. But he, he was a piece of shit man.

Jimmy: Yeah.

Brett: And it's not the only time he shat on the floor. The coppers knew he was shittin' all over the floor.

Jimmy: Yeah.

Brett: It's not the only time. He's done it and done it.

Jimmy: Was he a bit of a cheeky - didn't give a shit?

Brett: No, he had a big mouth.

Jimmy: Yeah, yeah.

Brett: Had a big mouth and -

Jimmy: Well, for someone to do that they've obviously fuckin' got some issues mate.

Brett: Yeah, oh, yeah there were some issues.

Jimmy: Do you know what I mean? A normal person doesn't fuckin' shit on the floor.

Brett: The owner of the pub even come up that mornin'.

Jimmy: Yeah.

Brett: No, the previous mornin'.

Jimmy: Yeah.

Brett: That's right happened Saturday night. Sunday mornin' the owner of the pub came up and knocked on that bloke's door and said get, get your shit, get the fuck out.

Jimmy: Bullshit.

Brett: After what he done.

Jimmy: Fuck.

Brett: You know. Yeah, he did.

Jimmy: Shame, he fuckin' would've been better off if he listened to him, eh.

Brett: Mm. He was fifty but, you know, a fuckin' idiot.

Brett: Like I said to them, you know, I didn't wish for him to, um, get killed.

Jimmy: Yeah.

Brett: To fuckin' kill him. I mean, he was a piece of shit.

Jimmy: Yeah, yeah.

Brett: You know. I mean, you don't fuckin' - a fuckin' canine doesn't do that.

Jimmy: Yeah, yeah, yeah, that's it.

Kosta: Yeah.

Jimmy: Even they know where go to.

Brett: Mm?

Jimmy: Even, even they know where to go.

Brett: Yeah.

Jimmy: And where you don't go.

Brett: Exactly. Exactly mate.

Jimmy: They never do it in their kennel.

Brett: Nah.

Jimmy: Do you know what I mean?

Brett: Yeah.

Jimmy: No you should be alright mate.

24 The statements that the deceased was 'a piece of shit', and to the effect he 'did things a dog would not do' are manifestly callous towards, and disrespectful of, the dead man. As evidence as to Drummond's relevant state of mind however they suffer from three defects:

(a) They are statements about the worth of the deceased made five days after the killing. Contrast the evidence of Drummond's state of mind in respect of the deceased's behaviour in the period leading up to and at the time of the killing, including Drummond's own admissions, which is relevantly probative of his anger.

(b) They are expressed in the context of the cells, in the foul language and with the callous bravado which was referred to by Coldrey J in Roba[3] in the following terms:

Prison conversations, of which this may be regarded as an example, carry with them the temptation of big-noting; of using language regarded as demonstrating familiarity with one's surroundings, or as an expression of bravado and toughness; of seeking to bond with a cellmate in an atmosphere of shared adversity. As indicated, the nature of prison communication is noted by Vincent J in Franklin's case.

Here the conversation is replete with the familiar mindless expletives and studied callousness, albeit that a large measure of the language emanates from the undercover police officer. In my view no amount of judicial filleting would enable the removal of the prejudicial effect of it upon any jury.[4]

(c) They were elicited in part by positive suggestion and encouragement: eg 'was he a bit cheeky - didn't give a shit?'; 'well for someone to do that they've obviously got some issues mate'; 'do you know what I mean? A normal person doesn't fuckin' shit on the floor'; 'they never do it in their kennel'.

25 The same observations may be made about the following passage at tape 3, page 26.

Jimmy: See some people - it was bad, like you said, you don't want 'em to die. But some people have a beating coming. Do you know what I mean?

Brett: Yeah, exactly.

Jimmy: You do shit like that.

Brett: Then someone loses the plot.

Jimmy: You know.

Brett: Fuckin' over-step it and that.

Jimmy: Yeah, it doesn't take - it's not that far between givin' someone a hiding and fuckin' -

Kosta: Yeah.

Jimmy: I mean, you don't mean to do it.

Kosta: In the heat of the moment man.

Jimmy: Yeah. You lose the plot.

Kosta: Especially if you have a few of these ones.

Jimmy: Especially bro, like that's where, where you're living.

Brett: Yeah.

Jimmy: People are disrespecting the place and -

Brett: Oh exactly.

Jimmy: I can understand you might fuckin' just - I know what I'd fuckin' do.

Kosta: You tell him once, you tell him twice, how many times can you tell somebody? You know what I mean?

Brett: Like he didn't like me, I knew he didn't.

Jimmy: Yeah.

Brett: You know.

Jimmy: Even like a gentleman would have a limit, like up to where -

Brett: Yeah.

Jimmy: You get to a certain line and that's it mate, you know.

Brett: Yeah, yeah.

Jimmy: You gotta step up otherwise, you know, you're not a man.

Brett: Yeah.

Jimmy: But -

Brett: Exactly Jimmy.

Jimmy: But anyway, got a few more dramas than us.

In this instance, the operative suggests that some people have a beating coming, especially if they disrespect the place in which you live, otherwise 'you're not a man.' The operative subsequently returned to the same theme at tape 3, page 35.

26 In my view, the combination of the factors I have already referred to, namely the fact that the statements are not contemporaneous with the killing, that they are made in the cells, and that they are elicited by positive suggestion and encouragement, mean that the flavour of Drummond's statements is not particularly probative of his state of mind at the time of the killing.

27 Conversely, the combination of language used and callousness, insensitivity and disrespect towards the dead man are plainly potentially prejudicial. Moreover, the prejudice cannot be avoided by judicial editing.

28 Mr Gibson concedes the covert recordings do not contain statements of fact by Drummond which substantially add to the admissions made by him in the record of interview.

29 He points however to statements by Drummond that Singer was black and blue after he had been beaten in the hotel and that there was blood everywhere. He submits that such evidence rebuts the suggestion that might otherwise be made that Singer may have suffered substantial injury when he was removed down the hotel stairs by Walters after any confrontation with Drummond in the hotel.

30 Mr Chadwick submits that the defence case is that Walters's actions were the sole cause of the fatal injuries sustained by Singer and that such injuries were inflicted upstairs at the hotel. Walters subsequently took the deceased down the stairs from the hotel and some injuries may have been sustained by Singer in this process, but any such injuries were relatively minor and would have been suffered to the extremities of the body only (eg the head). They are not an issue.

31 Accepting that this is the way the defence puts its case, the particular passages relied on do not advance the Crown case.

32 Conversely, as the passages I have quoted demonstrate, the passages in the covert recordings which contain the relevant statements are prejudicial to the defence in the callousness and crudeness of the language employed. They have the potential to convey a strongly adverse impression of Drummond's character where no substantial probative purpose is otherwise served by the evidence.

33 The Crown submits that statements by Drummond evincing a desire to speak to and influence the co-accused Walters demonstrate a consciousness of guilt.

34 Walters is first discussed in the following terms:

Jimmy: Yeah. So this is what, the dude that actually did it, is he like a big guy?

Brett: Nah.

Jimmy: The one that put his hand up. Is he tough, what?

Brett: Nah, he's -

Jimmy: But he looked after the joint?

Brett: No, no, not like that. But like he's - he can look after himself. But he's an alright bloke.

Jimmy: Yeah.

Brett: He just, he wasn't happy for a while with this other cunt. He just wasn't happy.

Jimmy: So he was sorta like lookin' after the -

Brett: Nah, he just stuck to himself.

Jimmy: Really?

Brett: Yeah. I had a few drinks with him every now and then.

Jimmy: Yeah.

Brett: He was an alright bloke, you know. He was a little bit wild but he never got angry.

Jimmy: Yeah. Just sayin' like it takes a lot to like, one thing to get pissed off. But actually like, you know, teach him a lesson takes a bit of fuckin'-

Brett: He must've just snapped.

Jimmy: Yeah.

Brett: Incredible.

Jimmy: Some people snap and they just-

Brett: Yeah.

Jimmy: Like to actually step up, do you know what I mean? Like alright, it went a bit far.

Brett: Yeah.

Jimmy: But if it didn't, like you would've been the man. Do you know what I mean, like?

Brett: Mm.

Jimmy: Yeah, 'cause it takes balls to do shit like that. Especially, as you say, there's fuckin' twelve other people and it's their problem.

Brett: Yeah.

Jimmy: You know, he stands up for everyone, you know.

35 Having built Walters up in this way, one of the operatives subsequently returns to the capacity of Walters to do Drummond harm.

Jimmy: As long as, like how you say your mate that done it. As long as he doesn't say anything.

Brett: Yeah, oh-

Jimmy: Then you've got nothing to worry about. Do you know what I mean?

Brett: Mate, I don't think he has.

Jimmy: If you've got a bloke saying, I done it.

Brett: Yeah.

Jimmy: On me own.

Brett: 'cause the first lady from Legal Aid, Wendy, the chick, nice lady.

Jimmy: Yeah.

Brett: Told her. He goes, I can't believe you're here.

Jimmy: Yeah.

Brett: She goes, he's made full admission.

Jimmy: Yep, yep.

Brett: And she would've said, Brett, he's mentioned you.

Jimmy: Yeah, yeah.

Brett: She would've said, you're being mentioned. He didn't mate, he hasn't said shit.

Jimmy: Yeah.

Brett: You know. And he wouldn't, Jim.

Jimmy: Yeah, 'cause he's been around. Do you know what I mean?

Brett: Oh, yeah, he's been around.

Jimmy: Like you say. But what I'm saying is, like when you're sitting - obviously I've never sat there. I can just imagine if you're sitting there.

Brett: Mm.

Jimmy: And there's a bloke sittin' here. And you've fuckin', you've done someone.

Brett: Yeah.

Jimmy: And they say, well you can - five years of your life, we can give it back to ya.

Brett: Mm.

Jimmy: Your head starts - doesn't fuckin' work normal. Do you know what I mean?

Brett: Yeah, Yeah, I know.

Jimmy: Can you imagine, like five years. Fuck it's a long time.

Brett: It is. (Inaudible)

Jimmy: You know.

Brett: I said, oh-

Jimmy; Like you were saying before.

Brett: Yeah, and I'm like, well couldn't give a fuck.

Jimmy: Yeah. But some - not everyone's like you. Do you know what I mean? Fuckin' -

Brett: Like I'm not dobbin' on nobody.

Jimmy: Yeah.

Brett: But, I mean, I didn't have to, I'm just talkin'.

Jimmy: Well look in the papers mate.

Brett: Yeah.

Jimmy: Fuckin' they'll say Carl Williams was making statements.

Brett: Yeah.

Jimmy: Do you know what I mean?

Brett: Yeah. He was just mixed up.

Jimmy: If there's someone like that making statements.

Brett: Yeah.

Jimmy: You can say, anyone could make a statement one day.

Brett: Nah, you go for it mate.

Jimmy: Do you know what I mean?

Brett: Yeah, yeah, exactly.

Jimmy: If, if he can.

Brett: Mm.

Jimmy: Like he was like fuckin' the man.

Brett: But I reckon the coppers have been told from the solicitor.

Jimmy: Yeah.

Brett: 'Cause with the sentence he, he had-

Jimmy: Look, the only thing is, right, like they'll fuckin' - obviously they've got a sniff of ya.

Brett: Mm.

Jimmy: They're gonna keep fuckin' getting' into him, getting' into him, getting' into him that what you've gotta.

Brett: He won't.

Jimmy: Yeah, just - has he been around?

Brett: Yeah man.

Jimmy: Were you with him in Pentridge?

Brett: Nah, nah, he's been in there around the time I was in there.

Jimmy: Yeah.

Brett: And knew some people I knew.

Jimmy: Yeah, yeah.

Brett: And you talk with him, mate and you talk with him. 'Cause I spoke with him.

Jimmy: Mm.

Brett: He's staunch (inaudible).

Jimmy: Yeah, but bro, but bro a lot of, a lot of people have thought that and you fuckin' -

Brett: Nah, nah, nah.

Jimmy: Yeah. Just be careful yeah.

Brett: But he's, he's the kind've dude, he's just like, you know-

Jimmy: Cruisy.

Brett: If he's, if he's gonna fuckin' knock ya he'll knock ya.

Jimmy: Yeah.

Brett: Just give a fuck.

36 In this passage the operative specifically raises the possibility that Walters may say something about Drummond in order to get his own sentence reduced. Drummond's response that Walters is 'staunch' is susceptible of a variety of interpretations but in the context of Drummond's account of events as a whole it may simply mean that Walters is honest.

37 In a subsequent passage Drummond responds to the question whether Walters could 'fuck him over'.

Jimmy: The main thing is you stay staunch we'll fix this.

Brett: I'm staunch as mate.

Jimmy: Just fuckin' you gotta see, Brad.

Brett: Yeah, yeah, I'll see him.

Jimmy: Yeah.

Brett: I'm fuckin' positive mate.

Jimmy: You've got to.

Brett: 'Cause yeah, soon as I get to the MAP I'm puttin' the word out, where is he?

Jimmy: Yeah.

Brett: Mate, get Brad.

Jimmy: Not the way to go. Fuckin' shut the fuck up.

Brett: Yeah. And if he's gone somewhere else.

Jimmy: If you can't find him you know what's up.

Brett: Mm. But he - they might've moved him already. 'Cause you only stay at the MAP for a week.

Jimmy: But you know what, the people that you can't find, do you know why you can't find 'em?

Brett: Yeah, yeah, I know.

Jimmy: You know why?

Brett: Yeah, 'cause they're rattin', they're talkin'. Yeah. But I'll find out where he is.

Jimmy: Yeah.

Brett: Don't you worry about that. You know, he'll know I'm comin' in.

Jimmy: Yeah.

Brett: He'll know.

Jimmy: Fuck, be careful mate, be careful.

Brett: Jim, I believe that he's staunch man.

...

Jimmy: But then how do you say Brad would rat on you?

Brett: Yeah, no, he wouldn't.

Jimmy: But how can he, what can he say?

Brett: What can he say?

Jimmy: Yeah.

Brett: Nothin'.

38 Whilst it may be said that this passage evinces an intention to speak to Walters and repeats Drummond's view Walters is 'staunch', he further reiterates that there is nothing in fact Walters can say and the whole is provoked by Jimmy's exhortations that he must see Walters.

39 In my view, it cannot be said that these statements could fairly be construed as involving implied admissions of guilt. All of the relevant statements by Drummond are provoked and elicited by the undercover operates. Further, they are entirely consistent with the view that he wishes Walters to remain truthful and that he believes he will be staunch and do so.

40 The statements relied upon are not in my view materially, if at all, probative of the Crown case. Conversely, they are plainly prejudicial by reason of the nature of the language employed, the repeated reference to the prison context and the unreliability of criminals, and the risk of exaggeration of or speculation concerning their meaning.

41 R was a resident in the hotel who made police statements on 3 and 5 October 2011. In the first of these statements he describes hearing a commotion at about 9:00 or 10:00 pm but does not describe witnessing any violence. In the second statement he says, amongst other things, the following:

• On 2 October 2011 he complained to the owner of the hotel early in the day of faeces on the floor outside the bathroom. The owner asked Singer to clean it up.

• Everyone at the hotel was upset about Singer defecating in the hotel.

• When Singer failed to clean up the faeces R asked him to but got no response.

• At about 7:30 pm Walters left the room, leaving R and Drummond within it. About 15 minutes later R looked for Walters and found him standing over Singer who was on the floor with a bloody nose and urine-soaked pants. After a few words Walters kicked Singer hard.

• R returned to his room and told Drummond what was going on. Drummond went to Walters and Singer and abused Singer while Walters hit him.

• Some time later R saw Drummond and Walters assault Singer. Drummond abused Singer whilst Walters hit him. R saw Drummond punch Singer to the head area.

• Yet later R went back to the three men and saw Drummond pick up a bar fridge apparently intending to drop it on Singer. R took the fridge from him. He thinks Singer was already dead.

42 R was the only eyewitness to state he saw Drummond involved in the fatal assault on Singer. Whilst on its face this evidence materially implicates Drummond in the killing of Singer, it must be treated with some reservations:

(1) The Crown concedes R was himself implicated in the events of the evening. It will be necessary to give the jury an 'accomplice' warning, as was done at the trial of Walters.

(2) R did not swear up to those aspects of his second police statement implicating Drummond at the trial of Walters.

(3) R's second statement differs very materially from his first.

(4) R has a complex personal history and suffers from mental health issues including depression and anxiety. At the time of the killing he was taking a substantial daily dose of Ritalin together with other medication. Prior to the trial of Walters, evidence was called on the voir dire by counsel for Drummond from two psychiatrists and a psychologist. That evidence did not demonstrate that Drummond's evidence was inherently unreliable but it did raise issues as to the coherence of his cognitive presentation.

43 Whilst this last factor raises matters which are quintessentially matters for the jury, the combination of the first three must lead to the conclusion that there is a real question mark concerning the truth and reliability of R's evidence.

44 The Crown seeks to adduce evidence of statements by Drummond to the covert operatives demonstrating an intention to seek to arrange for the witness R to change what he had said to police and/or to inflict revenge upon R for the making of statements incriminating Drummond. It is submitted the statements should be received as evidence of consciousness of guilt.

45 Early in the covertly-recorded conversation, Drummond tells the operatives that his solicitor told him that there was just one witness saying he was involved in the killing.

46 Drummond further states he saw this witness (R) when he was brought to the police station and describes him as a drug fucked idiot, who doesn't shower and is a pig.

47 Subsequently, the following exchange takes place:

Kosta: So what'd that dog say about the fridge? Why would he say somethin' like that man?

Brett: 'Cause me and him, like I said to the Ds, we didn't get on.

Jimmy: Yeah.

Brett: Like I didn't hate him.

Jimmy: Yeah.

Brett: It's just sometimes I used to say to him, you're a fuckin' idiot and then walk off, you know.

Jimmy: Yeah.

Brett: I had a couple of drinks with him and walked off, you know. We didn't see eye-to-eye.

Kosta: Fair enough.

Brett: And I said that to him. I said, he's (inaudible) this cunt.

Jimmy: Yeah.

Brett: He can say anything against me.

Jimmy: Yeah man.

Brett: Being a total prick mate. Thing is, it wouldn't stand up.

Jimmy: Yeah.

Brett: 'Cause they'd just say take one look your Honour at this cunt.

Jimmy: Yeah, yeah, yeah.

Brett: Have a look at this cunt, solicitor would say (inaudible) that. He's got scars, scabs and shit all over him man.

Jimmy: Yeah.

Brett: There's somethin' wrong with him. He doesn't shower or nothin' the cunt.

Jimmy: Yeah.

Brett: Pig.

Jimmy: I'll have to go round and pay him a visit.

Brett: Say bye bye cunt.[5] (inaudible) take him for a drive and fuckin' -

Jimmy: Nah man.

48 It is to be noted that it is Jimmy who first raises the prospect of having to go round and pay R a visit.

49 Subsequently, Drummond returns to discussing R, saying that he forgot to tell his solicitor that R is on medication because of depression. He says that when R takes the medication it is like he is 'speeding'. R is off his head and hallucinating. He expresses the view that R's evidence can't be credible.

50 Shortly after this there is a further discussion about talking to R:

Jimmy: Yeah, yeah. He probably won't even see ya mate. They'll probably keep yous like in different areas.

Brett: Yeah, true.

Jimmy: Do you know what I mean?

Brett: Keep us apart.

Jimmy: So yous can't talk to each other.

Brett: (Inaudible).

Jimmy: I reckon they will.

Brett: 'Cause I wanta talk to him.

Jimmy: You wanta talk to him mate.

Brett: Yeah, I wanta talk to him.

Jimmy: Yeah.

Brett: You know; 'cause he's gonna trip out.

Jimmy: Yeah.

Brett: What the fuck are you doing here Brett?

Jimmy: Yeah.

Brett: So I couldn't tell him 'cause the cunt's dobbin' on me.

Jimmy: Yeah.

Brett: He's put me fuckin' right in this cunt. Over nothin' mate.

Jimmy: He's put ya right in it, eh?

Brett: No, he's just like allegations I was in there fuckin' punchin' into him and shit. Gonna fuckin' chuck the fridge on his head.

51 A little while later, the operative Jimmy raises the question of a code of silence.

Jimmy: And bro, no matter what happens man, you know, never say anything.

Brett: Nah, shit no.

Jimmy: Like even just say like if someone dobbed me I still couldn't dob them. You know what I mean?

Brett: Yeah, yeah, na, nah.

Jimmy: Because I've gotta live by my own - do you know what I mean? Like I'd rather cop it.

Brett: Mm.

Jimmy: Than bring someone else's name into it, you know.

Brett: I never talk, Jim.

Jimmy: Yeah, nah, that's -

Brett: (Inaudible).

Jimmy: Yeah. There's not many people like that any more.

Brett: No.

Jimmy: Like old school.

Brett: Yeah, it's old school shit mate.

Jimmy: Like I said before, like Carl Williams mate.

Brett: Yeah. Yeah, you don't talk mate. That's why he copped his whack mate.

Jimmy: Yeah.

Brett: Talkin' with the jacks and shit.

Jimmy: Yeah.

52 Subsequently, Jimmy again offers to help Drummond with respect to R:

Brett: Fuck no, I mean, like family-wise and friends. 'Cause it hit, would've hit the paper today.

Jimmy: Oh, yeah.

Brett: The people would be trippin' out.

Jimmy: Yeah, yeah.

Brett: Where I used to work and all that.

Jimmy: Yeah.

Brett: Other places I've worked.

Jimmy: Yep.

Brett: And I'm just thinkin' to myself, well we'll see who comes to see me.

Jimmy: Yeah.

Brett: See who your true friends are.

Jimmy: That's it.

Brett: You know.

Jimmy: It's a good way to find out.

Brett: You know, who, who cares about you, you know. 'Cause I was (inaudible).

Jimmy: Do you need anything done man?

Brett: Eh?

Jimmy: Do you need anything done?

Brett: Nah, not that I know of.

Jimmy: Like, 'cause we can help ya out with something if you want.

Brett: If you want go have a word this cunt.

Jimmy: To who?

Brett: The idiot at the pub.

Jimmy: What's his name?

Brett: [R].

Jimmy: [R].

Brett: Yeah.

Jimmy: Are you serious, do you want us to?

Brett: Yeah, but-

Jimmy: But be smart about it.

Brett: Yeah. 'Cause like these cunts probably come back on me these cunts.

Jimmy: Yeah.

Brett: (Inaudible) fixed up. They would these cunts, I know. But hang off with it.

Jimmy: Yeah.

Brett: But I - 'cause I'm just thinkin' like in five months time. I know it's a long time.

Jimmy: Yeah.

Brett: You know. But if somethin' goes down and I get the time (inaudible) fuckin' thing. Somethin's gonna happen to that cunt.

Jimmy: Yeah.

Brett: You know.

Jimmy: Yeah.

Brett: For sure.

Jimmy: What's his name?

Brett: [R].

Jimmy: Cool.

Brett: Yeah. Can't miss him man, he's a fuckin' bit idiot lookin' thing. Skinny as.

Jimmy: Yeah.

Brett: You know. When, 'cause where, where you go, Jim, in that side door that take ya upstairs.

53 After further discussion as to where R can be found the conversation continues:

Jimmy: 'Cause you know what, like just talkin' to you, you seem like a good guy man.

Brett: Yeah.

Jimmy: I don't like people that talk mate.

Brett: Yeah, I know. I know what you mean.

Jimmy: Alright. Do you seriously want us to go pay him a visit?

Brett: Yeah, but I'm just thinkin', um, like to do it the right -

Jimmy: I'll do it for ya (inaudible).

Brett: Yeah, but I mean to do it the right way. To mainly getting' a look at him. Yeah, what it probably is, is to go up there.

Jimmy: Yeah.

Brett: Just one of yous.

Jimmy: Yeah.

Brett: Knock on his door.

Jimmy: Yeah.

Brett: He'll answer it.

Jimmy: Just go, oh, sorry.

Brett: Got the wrong room.

Jimmy: Yeah.

Brett: So then you get a look. And that's who the cunt is.

Jimmy: Yeah.

Brett: 'Cause he ventures out.

Jimmy: Yeah.

Brett: Got no car or nothin'.

Jimmy: Yeah, yeah.

Brett: Ventures out. You'd be best off getting him somewhere else.

Jimmy: Yeah.

Brett: You know what I mean? Away from there.

Jimmy: We - just come, just talk soft.

Brett: Yeah. Yeah.

Jimmy: What do you want, what do you want us to do to him?

Brett: He just needs to be told to shut his fuckin' mouth.

Jimmy: Yeah.

Brett: You know.

Jimmy: And has he made, has he made a statement already?

Brett: (Inaudible).

Jimmy: And so what should I tell him about that -

Brett: 'Cause he's a piece of shit mate.

Jimmy: Yeah.

Brett: He'll just come back -

Jimmy: Yeah, he'll shit himself.

Brett: He'll come back and squeal to the coppers (inaudible).

Jimmy: No.

Brett: But I don't reckon he would.

Jimmy: Don't worry man.

Brett: He'll shit himself.

Jimmy: Yeah. I'll take another guy I know.

Brett: Mm.

Jimmy: I know some big boys.

Brett: Yeah. Full, change your fuckin' statements cunt.

Jimmy: Yeah. Yeah. No, 'cause fuck bro, shit happens. Do you know what I mean?

Brett: Mm, I know.

Jimmy: But, you know, you've gotta live by the code as well.

Brett: Yeah. Exactly.

Jimmy: But then like when you get out you'll look after us?

Brett: Yeah.

Jimmy: If we do this, what's in it for us?

Brett: We'll have to see mate. We, we can talk.

Jimmy: Rough idea? No, 'cause obviously this is, this isn't something small.

Brett: No, no, I know.

Jimmy: 'Cause we, we can fix it.

Brett: Yeah, I know.

Jimmy: If you want us to.

Brett: But I'm just thinkin', Jimmy, you know, that fuckin' like I don't reckon it's gonna be credible, this cunt -

Jimmy: It's up to you. Like I'm not tellin' ya, I'm just -

Brett: No, no, no same.

Jimmy: You just brought it up.

Brett: I don't, I don't reckon it's credible about this cunt because -

Jimmy: Okay.

Brett: He's - I've gotta wait and talk to my solicitor; because he is, he's on medi - I forgot all about it. He's on medication that trips him out.

Jimmy: Yeah. 'Cause I won't be able to speak to ya after today.

Brett: Yeah, I know.

Jimmy: Do you know what I mean? I can get taken out of here any second. And then that's it.

Brett: Yeah, well knowin' that, I reckon just let it go.

Jimmy: Alright.

Brett: Just for the moment.

Jimmy: Yeah.

Brett: Yeah.

Brett: Just let it go.

Jimmy: Yeah.

Brett: 'Cause I'm still - like I'm gonna beat some boys.

Jimmy: Yeah.

Brett: Shit, I don't wanta start anything too soon.

Jimmy: Yeah.

Brett: You know what I mean?

Jimmy: Yeah.

Brett: 'Cause I wanta talk to me solicitor.

Jimmy: Yeah.

Brett: At the MAP.

Jimmy: Yeah.

Brett: I need to talk to him and then tell him about this cunt.

Jimmy: Yeah.

Brett: About all this hallucination shit and all this crap.

Jimmy: Yeah.

Brett: 'Cause then, then it's gonna be like, well he, he's not even credible this cunt.

Jimmy: Yeah.

Brett: His information. You with me?

Jimmy: Yeah. Do you want us to come and visit ya?

Brett: Mm.

Jimmy: So then we can sus out like what you want to -

Brett: What's goin' on.

Jimmy: Like in three, in three months time you might know a better picture, you know.

Brett: Yeah, yeah, exactly.

Jimmy: They might have more statements.

Brett: Yeah.

Jimmy: You know, someone might've seen something, whatever.

Brett: Yeah.

Jimmy: Do you know what I mean?

Brett: Yeah I do, I do, I do.

Jimmy: 'Cause bro, if there's money in it.

Brett: Mm. I'm not a rich man, that's all.

Jimmy: Oh, there's other things that we can do anyway.

Brett: Yeah.

Jimmy: You know.

Brett: I've got this, fuckin' where I used to work I've, I've got five grand that's comin' to me.

Jimmy: Yeah.

Brett: Not sure when though.

Jimmy: Yeah.

Brett: Got told fairly soon.

Jimmy: Yeah.

Brett: So I'll have that.

Jimmy: Yeah.

Brett: You know what I mean? But that, when that is I don't know. It's been two years since the bloke died.

Jimmy: Yeah. Yeah, yeah.

Brett: Go and make me some money.

Jimmy: Yeah.

Brett: Yeah. Yeah. I reckon just let me talk.

Jimmy: Yeah.

Brett: I'll go and talk with the solicitor, Jimmy.

54 Again it is Jimmy who asks 'what's in it for us?' Drummond ultimately pulls back from making an arrangement. Subsequently, however, Drummond makes the following statement:

Brett: This dirty cunt, you know. 'Cause I've said to myself - not, not to the boys man. I said to myself, if somethin' happens I'll get locked up. The day I get out I'm huntin' this cunt down.

Jimmy: Yeah.

Brett: You know, but this way, this way too, Jim, you know, I can meet some people where I can get a fuckin' pistol and shit, you know. 'cause I, I fuckin' need one.

Jimmy: Yeah.

Brett: You know, 'cause of pricks like this, you know. And I wanta meet some people mate.

Jimmy: Mm.

Brett: Fuckin', you know, you can help me out and crap.

Jimmy: Just be careful.

Brett: Yeah, I know.

55 Despite the very forceful nature of some of these statements, they must be understood in their context. First, they are contained within an extended conversation which, as a whole, is replete with repeated and consistent denials that Drummond killed or hit Singer (which I have not quoted in full because of its length). Secondly, they are made in the cells by Drummond when he believes he is speaking to hardened criminals. They are replete with elements of bravado and machismo. Thirdly, the statements are elicited after offers from the operatives to help Drummond out. Fourthly, they are substantially made after the undercover operatives had invoked the notion that police informers are despicable. It is the experience of this Court that this culture is both pervasive and strong. Over very many years police informers have been reviled, abused, bashed and on occasions killed within Victorian prisons. They are generally placed in protective custody. Fifthly, Drummond draws back from and expressly disclaims any actual arrangement for the operatives to talk to R.

56 The defence submits that the statements are entirely consistent with the unwavering position taken elsewhere in the recorded conversations that Drummond did not kill or hit Singer and that the accusations made by R are false. On this view, the statements simply reflect Drummond's antipathy to R by reason of his false accusations.

57 In order to reject this explanation of the statements, the jury would need to evaluate R's evidence in the context of the circumstantial evidence as a whole. As I have said, that evidence is necessary subject to doubts as to its reliability.

58 This said, I accept that Drummond's statements to the covert operatives are capable of founding an inference of consciousness of guilt.

59 It is also proper to recognise that such evidence may be probative by reason of contributing to the combined force of the evidence as a whole rather than when viewed on its own.

60 Nevertheless, I have reached the view that the probative force of the statements is at best low when they are read in the context I have identified, namely:

(1) the statements are embedded in an extended narrative containing repeated and consistent denials that Drummond killed Singer;

(2) the statements were made in the cells to what appeared to be hardened criminals in the context of a culture of hostility to informers expressly invoked by the operatives;

(3) the statements were elicited in substantial part by offers of help to speak to R by the covert operatives; and

(4) the statements fell short of the making of any arrangement or proposed arrangement to actually do anything; and

(5) the statements are capable of being viewed as consistent with Drummond's innocence.

61 Conversely, the conversations are very materially prejudicial. They are not capable of internal editing without material alteration to their meaning.[6] They are not capable of isolation from the balance of the recordings because of the necessity from the defence point of view that if they go before the jury the context of repeated denials of involvement in the killing of Singer would need to be made clear and full. The recordings as a whole are replete with the language of the prison cells. They embrace a culture of criminality. They evince a callousness and a willingness to contemplate criminal behaviour. Evidence of the conversations would give rise to a real risk that they would be given greater probative weight than they in fact have, whatever judicial directions were given as to their use. This risk is founded in the fact that the conversations are not confessional and the Crown seek to raise what are essentially collateral matters.

62 Lastly, the covertly-recorded conversations obscure the primary evidentiary issue relating to R's evidence which is simply whether he is to be accepted as a truthful and reliable witness as to the events of the night in which Singer was killed.

63 The defence submits that the covert recordings should be excluded pursuant to ss 138, 90 or 137 of the Evidence Act 2008. It is convenient to deal with s 137 first, before coming to the discretionary provisions under the other sections. In turn, I accept the view that s 90 embodies a residual discretion,[7] and it is logical to deal with s 138 next.

Section 137

64 Section 137 provides: 'In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused'.

65 In my view, the probative value of the covert recordings in respect of the first three bases on which they are sought to be admitted is plainly outweighed by the danger of unfair prejudice to the accused. This is because the probative value, if any, is low with respect to the issues of animus, admissions and intention with respect to the co-accused. On the other hand, the covertly recorded statements carry with them the inherent danger of unfair prejudice deriving from the callousness, crudity and bravado with which the accused man speaks and the context of criminal behaviour which is emphasised.

66 The evidence with respect to statements about R is capable of founding an inference of consciousness of guilt, but for the reasons I have already stated the probative value is also low when regard is had to their context. That context is such that there must be serious doubt concerning the reliability of the inference which is sought to be drawn. Conversely, the evidence is highly prejudicial.

67 It is not feasible to edit the conversations (save perhaps in one particular respect relating to the previous imprisonment of Drummond) without diminishing either the flavour which the Crown contends is relevant, or on the other hand the pervasive thread of fundamental denial of complicity in Singer's death upon which the defence would rely. The conversations as a whole carry with them a degree of unfair prejudice to the accused which outweighs their probative value because of the following elements:

• the apparent callousness towards the deceased man;

• the pervasive crudity and obscenity of the prison cell language;

• the extent to which the accused's statements are elucidated and encouraged by the operatives, inviting and conveying a willing participation in a dishonest criminal culture;

• the extent to which the statements encourage speculation rather than permit inferences fairly to be drawn;

• the element of criminal bravado and machismo which is apparent;[8]

• the element of violence pervading the conversations, and more particularly the conversations concerning R;

• the real risk that insofar as the statements can be said to be probative of guilt, they would be given disproportionate weight.

68 Having regard to all the above matters, I would exclude the recordings under s 137. At heart, this conclusion flows fundamentally from the fact that the covert recordings do not disclose evidence which is materially confessional and at best would found speculative inferences of guilt based on collateral evidence of dubious reliability.[9]

Section 138

69 Section 138 provides as follows:

(1) Evidence that was obtained -

(a) improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of an Australian law -

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning -

(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or

(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account -

(a) the probative value of the evidence; and

(b) the importance of the evidence in the proceeding; and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and

(d) the gravity of the impropriety or contravention; and

(e) whether the impropriety or contravention was deliberate or reckless; and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

70 Drummond's statements and the covert recordings were not obtained illegally.

71 Section 464, following, of the Crimes Act 1958 did not apply to the police operatives because they were not 'investigating officials' as defined by that section. They were members of the police force 'engaged in covert investigations under the orders of a supervisor'.

72 Likewise, s 139 of the Evidence Act did not apply because the Dictionary to the Evidence Act defines 'investigating official' in the same way.[10]

73 Nevertheless, Mr Chadwick submits that Drummond's statements were improperly obtained having regard to the following factors:

(a) he had been advised of his rights to legal advice and obtained advice from a legal aid solicitor before his record of interview;

(b) he had been cautioned before his record of interview and further cautioned during its course;

(c) he had cooperated fully in that record of interview;

(d) he had been charged and remanded in custody to a committal hearing;

(e) he was neither further advised of his rights nor cautioned before the conversation in the cells;

(f) he was actively interrogated during the course of the conversation;

(g) he was interrogated unfairly;[11] and

74 It is submitted that, in effect, the accused's rights to silence, and in particular those sought to be guaranteed by s 464, were subverted.

75 There is a threshold difficulty with this submission, in that as I have said the statutory scheme expressly exempts undercover police from its ambit.

76 Moreover, admissions made to persons believed to be fellow prisoners have a fundamentally different character to those made to persons known to be investigating police. In particular, it might be thought that answers made in the course of a record of interview after an accused was properly cautioned were intended to be truthful and reliable. The same assumption cannot be made with regard to casual conversations in the cell.

77 It is also well recognised that the mere fact an accused is in custody does not make the use of a covert recording improper.[12]

78 There was of course no compulsion upon Drummond to speak to the covert operatives about Singer's death. I also accept the force of Mr Gibson's submission that Drummond spoke in an environment where the possibility of an informer or covert recording was notorious; the most high profile example at the time in question of the use of statements made between prisoners being the case of Dupas.

79 Further, this is not a case like R v Chimirri[13] where the accused exercised his right to silence.

80 Nevertheless, I accept that impropriety might be said to occur if, as Coldrey J put it in Roba,[14] the legislative safeguards were circumvented 'as a matter of mere investigative convenience or expediency'.

81 In the present case, however, I accept Mr Gibson's submission that the use of covert operatives in itself was not improper in circumstances where:

• Singer had been murdered by way of a severe bashing in which he suffered, among other things, 27 broken ribs;

• the evidence as a whole indicated that he had been bashed over an extended period of time in the course of recurrent episodes;

• the persons involved in the course of events leading to Singer's death remained unclear;

• the evidence included in part evidence from a person with intellectual disabilities H as to what he had heard on the night;

• it further included evidence from R, a person criminally implicated in the events by H, who described R encouraging the other participants;

• R was the only identified eyewitness to the assaults on Singer and his evidence was subject to the reservations I have previously identified;

• Drummond had moved in a short time from a 'no comment' statement to admissions of conduct implicating him in the assaults but falling short of serious assault on his part; and

• alcohol use amongst residents of the hotel was high and the potential witnesses may have been affected by substance use.

82 In these circumstances, it seems to me that the use of covert operatives could only be described as improper if evidence were elicited by means which involved improper harassment or manipulation.[15]

83 Section 138(2) reflects this notion. In the present case it seems to me that, on the assumption that Drummond's statements about R can be characterised as implied admissions of guilt, these admissions were obtained only after the police operatives repeatedly offered to help Drummond with respect to R. Such admissions were made after the operatives had both made a series of false statements as to their identity and invited Drummond to enter into an improper arrangement with respect to R. The offers made by the covert operatives to help carried with them an implied assurance of a willingness to assist in getting R to change his evidence. In my view, this was 'improper' in the sense contemplated by s 138(1) and identified by s 138(2).

84 This conclusion is not, however, the end of the matter. Section 138(1) requires the court to consider whether the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. This notion reflects the public policy discretion explained in Ridgeway v The Queen[16] by Mason CJ, Deane and Dawson JJ. Their Honours referred to the considerations identified in the cases where the Bunning v Cross discretion was established and explained and then said:

Those considerations were identified in judgments in this Court in cases in which the Bunning v Cross discretion was established and explained. The relative weight to be given to them will vary according to the circumstances of the particular case. Thus, the weight to be given to the public interest in the conviction and punishment of those guilty of crime will vary according to the degree of criminality involved. The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence - the public interest in maintaining the integrity of the courts and in ensuring the observance of the law and minimum standards of propriety by those entrusted with powers of law enforcement - will vary according to other factors of which the most important will ordinarily be the nature, the seriousness and the effect of the illegal or improper conduct engaged in by the law enforcement officers and whether such conduct is encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings. When assessing the effect of the illegal or improper conduct, the relevance and importance of any unfairness either to a particular accused or to suspected or accused persons generally will likewise depend upon the particular circumstances. Ordinarily, however, any unfairness to the particular accused will be of no more than peripheral importance.[17]

85 In Swaffield,[18] Toohey, Gaudron and Gummow JJ observed:

There may be no unfairness involved but the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations.[19]

86 After reference to the common law authorities, Brennan CJ said:[20]

Thus the chief object of the public policy discretion is the constraining of law enforcement authorities so as to prevent their engaging in illegal or improper conduct, although the securing of fairness to an accused is a relevant factor in the exercise of the discretion. But if a confession of an offence is voluntarily made in circumstances that throw no doubt on its reliability, it is difficult to identify the unfairness that may be thought to affect the admission of his confession in evidence at his trial for that offence. The unfairness, if any, must consist in the admission of a confession which would not have been made or would not have been made in the form in which it was made if a person or persons in authority had treated the confessionalist in a lawful and proper manner. Unfairness of this kind, if it is to be regarded as unfairness, is different from the unfairness of admitting a confession of dubious reliability into evidence with the attendant risk of wrongful conviction. Unfairness of the former kind is simply the disadvantage suffered as the result of the conduct of the person or persons in authority. To characterise that disadvantage as "unfair", the conduct which produced the confession must be of such a nature and degree that no suspect in the confessionalist's place ought to be subjected to it. That judgment must be made by reference to either a controlling statute or public policy.

87 The Chief Justice subsequently said:[21]

In its application to evidence of confessions, the public policy discretion requires a balance to be struck between the public interest in placing the court in possession of all relevant admissible evidence and the public interest in ensuring that law enforcement officers do not act unlawfully or improperly. In striking this balance, any doubt about the reliability of a confession obtained by the unlawful or improper conduct is a factor that would have to be taken into account.

88 If regard is had to the criteria set out in s 138(3), then in the present case:

(a) the probative value of the evidence is low for the reasons I have explained;

(b) nevertheless, it potentially adds to the circumstantial case against Drummond;

(c) the charge is murder and this strongly favours the admission of probative evidence;[22]

(d) the impropriety was deliberately intended to elicit further discussion about R and what might be done in respect of him;

(e) the eliciting by way of suggestions of improper help was deliberate;

(f) no argument was directed to the International Covenant on Civil and Political Rights and counsel for the accused disclaimed any reliance upon it;

(g) no proceeding is likely to be taken in respect of the impropriety; and

(h) it is entirely unlikely that the alleged implied admissions in issue could have been obtained by other means.

89 Putting these matters together and having regard to the underlying purpose of s 138, I am not persuaded that the desirability of admitting the evidence I have identified outweighs the desirability of excluding it. At heart, this is because the probative value of the evidence is low because serious doubts must attend its reliability.[23] As I have already explained, there is a series of contextual circumstances which compels this conclusion.

90 Accordingly, I would also exclude the relevant parts of the recording concerning talking to R pursuant to s 138.

Section 90

91 In my view, the analysis under s 90 adds nothing to the analysis under s 137. The decision in Em[24] demonstrates the difficulty in justifying the application of the unfairness discretion on some further or other basis to s 137.

92 I would exclude the covert recordings pursuant to s 137 of the Evidence Act. If I had not been so minded, I would have excluded at least a substantial portion of the recordings comprising the references to R pursuant to s 138.

[1] R v Cuenco [2007] VSCA 41; (2007) 16 VR 118; Johnstone v R [2011] VSCA 60; (2011) 31 VR 320.

[2] Edwards v R [1993] HCA 63; (1993) 178 CLR 193.

[3] Roba [2000] VSC 96; (2000) 110 A Crim R 245.

[5] There is a dispute as to who says this.

[6] With the exception of deletions to Drummond's prior experience in prison.

[7] Em v The Queen [2007] HCA 46; (2007) 232 CLR 67 (Gummow and Hayne JJ, 104 [109]).

[8] The covert recordings include passages I have not quoted, in which the operators describe their criminal backgrounds and credentials.

[9] Cf Dupas v The Queen [2012] VSCA 328.

[10] Section 139 of the Evidence Act provides:

(1) For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if -

(a) the person was under arrest for an offence at the time; and

(b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person; and

(c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

(2) For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if -

(a) the questioning was conducted by an investigating official who did not have the power to arrest the person; and

(b) the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence; and

(c) the investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

(3) The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately.

(4) Subsections (1), (2) and (3) do not apply so far as any Australian law requires the person to answer questions put by, or do things required by, the investigating official.

(5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if -

(a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning; or

(b) the official would not allow the person to leave if the person wished to do so; or

(c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so.

(6) A person is not treated as being under arrest only because of subsection (5) if -

(a) the official is performing functions in relation to persons or goods entering or leaving Australia and the official does not believe the person has committed an offence against a law of the Commonwealth; or

(b) the official is exercising a power under an Australian law to detain and search the person or to require the person to provide information or to answer questions.

[11] The questions conveyed sentiments in a way which would be improper in a conventional police interview: R v Pritchard [1991] VicRp 8; [1991] 1 VR 84.

[12] R v Juric (2002) 4 VR 411, 442 [52]; R v Lewis [2000] VSCA 140; (2000) 1 VR 290, 312 [53].

[13] [2002] VSC 555; (2002) 136 A Crim R 381.

[14] [2000] VSC 96; (2000) 110 A Crim R 245, 255 [56].

[15] Cf Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19, 37.

[16] [1995] HCA 66; (1995) 184 CLR 19 (citations omitted).

[18] R v Swaffield [1998] HCA 1; (1998) 192 CLR 159.

[21] Ibid 180 [25]. See also Kirby J, 211 - 214 [132] - [135].

[22] R v Dalley [2002] NSWCCA 284; (2002) 132 A Crim R 169.

[23] Cf Em v The Queen [2007] HCA 46; (2007) 232 CLR 67, 82 [35].