R v Favata [2006] VSCA 44

1 I agree with Vincent, J.A. I take this opportunity to reiterate point 11 in R. v. Renzella[1].

3 This applicant was found guilty, by a jury in the Trial Division of this Court, of the murder of Samuel Francis Macumber, on 1 April 1999[2].

4 He now seeks leave to appeal against his conviction on the grounds:

1. The learned trial judge erred in that he failed to determine that:

(i) the conversation between the applicant and covert police operative "J" on 12 September, 2001; and

(ii) the conversation between the applicant and covert police operative "T" on 12 September, 2001 -

were inadmissible by reason that these conversations were conducted in circumstances where the statements made by the applicant were "involuntary".

2. The learned trial judge erred in failing to find that, prior to the making by the applicant on 12 September, 2001 of what the Crown contended were confessional statements, an inducement or inducements was/were held out to the applicant (Ruling at [19]).

3. The learned trial judge erred in the exercise of his discretion in that he failed to exclude from evidence:

(a) the conversation between the applicant and covert police operative "J" on 28 August, 2001;

(b) the conversations between the applicant and covert police operative "J" on 30 August, 2001;

(c) the conversation between the applicant and covert police operative "J" on 5 September, 2001;

(d) the conversation between the applicant and covert police operative

"J" on 12 September, 2001; and

(e) the conversation between the applicant and covert police operative "T" on 12 September, 2001.

4. There has been a substantial miscarriage of justice by reason of the Crown Prosecutor contending or relying upon a submission to the jury that the jury could find that the reaction of the applicant during the (second) Record of Interview conducted by the investigating police officers on 17 September, 2001, and the manner in which the applicant reacted, when faced with what he had told "J" and "T" evidenced a consciousness of guilt in the applicant of his murder of the deceased.

PARTICULARS

(i) It was not open to the jury to find that the said reaction evidenced a consciousness of guilt.

5. The learned trial judge erred in directing the jury that the reaction of the applicant during the (second) Record of Interview conducted by the investigating police officers on 17 September, 2001, and the manner in which the applicant reacted, when faced with what he had told "J" and "T", was evidence from which a consciousness of guilt in the applicant of his murder of the deceased could be found by the jury and, as a consequence, there has been a substantial miscarriage of justice.

PARTICULARS

(i) It was not open to the jury to find that the said reaction evidenced a consciousness of guilt.

6. The learned trial judge erred in his directions to the jury concerning consciousness of guilt with respect to:

(i) the applicant having raised an alibi; and

(ii) the applicant, at the start of the (second) Record of Interview with the investigating police officers on 17 September, 2001, having said that he did not know "J" and "T".

in circumstances where:

(a) the Crown Prosecutor did not rely upon these matters as evidencing consciousness of guilt in the applicant of his murder of the deceased; and

(b) it was not open to the jury to find that these matters evidenced a consciousness of guilt in the applicant of his murder of the deceased -

and as a consequence, there has been a substantial miscarriage of justice.

The Background

5 The deceased resided in a block of units in Centre Road, Clayton, located at the south-eastern corner of the intersection of Centre Road and Rayhur Street. He had, about two and a half years prior to his death, ceased working as a meteorologist due to ill-health. He had a drinking problem and was described by one witness as "very close to being an alcoholic". It appears that he regularly attended at the Clayton RSL Club and had some success playing the poker machines there.

6 The applicant resided in Springvale South. He was employed as a concreter by his brother-in-law, Grant Morison, and paid at the daily rate of $150.00.

7 Stephen Morison is also a brother-in-law of the applicant. At the relevant time, Stephen Morison resided with Craig Burns in a house in Moriah Street, Clayton, a short distance from the deceased's home. Stephen Morison had known Samuel Macumber for about ten years.

8 Craig Burns had known the deceased for about 20 years. Burns stated that, about a year to 18 months prior to the deceased's death, the deceased lent him $4,000 of which, at the time of death, Burns had repaid $1,200. About two weeks prior to his death, the deceased told Burns that he had purchased a property in Bruthen and that he was going to move there.

9 Grant Morison's business, "Morison's Concreting", had an arrangement with "Barrow Builders' Supplies" under which his employees purchased "Blundstone" work boots from that supplier and had the cost charged to the business[3]. Morison stated two pairs of such boots were purchased in November 1998 for the applicant and himself. He stated that the smaller pair (size 7 1/2) were the applicant's_._

10 Grant Morison stated that his business used a tip truck to dump broken concrete at the Din San tip and two other tips. The applicant did not have a licence to drive the truck and he did not allow him to do so.

11 Saverio Astorino was the operations manager for Kingston Quarries in Dingley, which is part of the Din San Tip. Astorino knew Grant Morison and he recalled that there were about three or four of Morison's employees who either drove the truck or rode as passengers to assist with unloading the broken concrete. Two of the men were respectively named "Daniel" and "Lorenzo". He could not recall whether "Lorenzo" ever drove the truck and he agreed that he was not able to identify the applicant as a person known to him.

12 Michael Averkiou, of the Department of Infrastructure, stated that the staff files held by the Department in respect of the applicant and the applicant's father, Domenico Favata, recorded that the applicant commenced employment with the Public Transport Corporation, on 13 March 1990 firstly as a car cleaner and then as a labourer and that his employment with the Department ceased on 13 August 1990.

13 When Domenico Favata worked for the Public Transport Corporation, he was provided with shoes and overalls and he had a choice of boots or flat shoes. When his sons, Phillip and the applicant, were younger (between the ages of eight and 16 years), he purchased extra pairs of boots for them. Phillip wore size 9 or 10 while the applicant wore size 6 1/2 or 7. He stated that he last purchased boots for the applicant was when he was aged 17 years.

14 Kenneth Hawkins, an "M-Trains" Facilities Maintenance Manager, stated that during the 1990s, Public Transport Corporation staff members were issued with a pair of "Oliver Hy-Test" work boots free of charge, every twelve months. They were also able to purchase extra pairs of boots of this brand at a reduced price. He said that these boots were still the standard issue at the time of trial. Hawkins identified two pairs of "Oliver Hy-Test Series 23" boots[4] shown to him as being of the type supplied by the Public Transport Corporation.

15 The General Manager of the Clayton RSL, Rodney James Bye, stated that the deceased was a member from 1981 up to the time of his death. Bye knew him as an irregular but frequent customer who used to play the poker machines. If a player won a sum less than $50, the pay out was made in coins by the machine itself. For larger amounts the player would receive a cash out slip that had to be taken to the cashier. The total of recorded payouts to the deceased, for the period 3 February to 30 March 1999, was $6,804.25.[5]

16 The deceased's mother and her partner, Francis Charles Fallon, lived about two or three blocks away from the deceased in Second Street, Clayton. Fallon understood that the deceased was diabetic and that he used to take sleeping tablets. Fallon recalled that he often left his garage door open when he went out. He had chastised him about this as his car could be stolen.

17 The deceased's companion, Katherine Lane, stated that he suffered from depression and had a drinking problem. However, Lane and Fallon both stated that he had endeavoured to address this in the months prior to his death and confined himself to drinking "Toomey's Blue" light beer, which was delivered to his house and usually brought straight into the kitchen. She did not recall any occasion on which a delivery of beer was left on the front verandah. Lane stated that, at night, the deceased would have his front door locked and he would secure the premises when he went to the shops in Clayton. But she said if he went to one located across the road from his home, he would not do so. To her knowledge, the deceased did not use a walking stick and she had not seen one at his home.

18 In the seven or eight months prior to the deceased's death, Stephen Morison went to the deceased's home once or twice each week to play chess and for about the last four months, he regularly stole sums of between $50 and $100 from the deceased's wallet.

19 Stephen Morison said that he had told the applicant what he knew of the deceased's financial position, including the fact that, upon his retirement, he had received a large lump sum payment from his former employer. He told the applicant that the deceased always kept a substantial amount of cash in his wallet from which Stephen "borrowed" from time to time. Stephen Morison said that the deceased had a "piggy bank" into which he put his change and that the deceased did not keep any cash elsewhere in the house. The largest amount that Stephen had seen in the deceased's wallet was $800 and he usually carried about $400 to $500 in it. He stole money from the wallet on about seven occasions over a two month period. He did so, he said, because he was short of cash at that time. Stephen Morison recalled that about two or three weeks prior to the deceased's death, the deceased won about $700 and that he (Morison) told his mother, the applicant and other people about it.

20 On 1 March 1999, Nora Artin went to her mother's home in Springvale Road, Springvale South. Mrs Artin's mother was in hospital and she had gone to check on the premises. She found that they had been burgled and ransacked. The items stolen included a television set, a video cassette recorder, a microwave oven, a Sanyo cassette recorder and a "Victa" lawn mower that had been purchased only two months earlier.

21 Stephen Morison stated that prior to the deceased's death, he sold to the deceased a television set, a video cassette recorder, and "maybe a lawn mower". He stated that these goods had been obtained from the applicant.

27 March 1999

22 Maria Janice Plummer, the owner and Practice Manager of the Clayton Veterinary Hospital, stated that the deceased was a client who brought his cat in for veterinary attention from time to time. She formed the view that he very much cared for the animal. According to her, he always kept his appointments. On 26 March 1999, the deceased telephoned the clinic and advised that his cat was sick. He brought the cat in on 27 March 1999 for a check. A follow up appointment was made for 9.15 a.m. on 1 April 1999.

23 On Saturday 27 March 1999, Stephen Morison and the applicant attended at the deceased's home to connect the television and video cassette recorder previously mentioned. Stephen Morison stated that the applicant saw him take money from the deceased's wallet while no one else was present.

Wednesday 31 March 1999

24 Evan Neon, a video recorder technician, stated that he went to the deceased's home before midday on 31 March 1999. He examined a video cassette recorder and gave the deceased a quotation for its repair.

25 On the same day, the applicant's mother-in-law, Barbara Morison, drove to the applicant's home for the purpose of lending her car to him. The applicant and her daughter drove Mrs Morison back to her home, after which they used the vehicle to go shopping.

26 Michelle Keble, Assistant Manager of the SportsCo Store at Northland Shopping Centre in Preston, produced computer records which recorded that "Lorenzo Favata of 1/488 Springvale Road, Springvale South" purchased a pair of Reebok running shoes at 1.27 p.m. on 31 March 1999.

27 Samuel Atkinson of Romano's Liquor was telephoned by the deceased during the day about an order for beer that had not been delivered. The deceased asked Atkinson whether he could deliver it that night. Mr Atkinson agreed and made a delivery of three cartons of beer after he had finished work at 9.00 p.m. He left it on the front porch of the deceased's home in accordance with the instructions he had been given. He did not recall any lights being on in the premises or whether he knocked on the door.

28 In cross-examination, Atkinson was shown a photograph depicting some blood[6]. He said that he would have noticed the blood shown in that photograph if it had been there at the time of the delivery.

29 At about 7.00 p.m., Craig Burns visited a neighbour who lived across the road at 65 Moriah Street. When he returned home he saw Stephen Morison's car parked in his driveway.

30 Katherine Lane spoke to the deceased by telephone on Wednesday at about 9.01 p.m. Telstra call charge records confirm that the last outgoing call from the home telephone of the deceased was on 31 March 1999 at 9.01 p.m. to the home of Ms Lane. She stated that in that call, the deceased expressed distress because his piggy bank had been stolen and, on the previous day, he had found that his lawn mower had been taken. The deceased had just noticed that the piggy bank was missing when he went to put some money in it. Ms Lane asked him whether the door to his unit had been locked and he said, "Yes". He mentioned that he had been receiving calls which would be terminated as soon as he picked up the receiver and he had contacted Telstra about them.

31 During the evening, Mrs Morison received a telephone call from the applicant and her daughter, who asked if they could visit some friends before returning her car.

32 That night, George Marangoudakis and his wife, Carol Martin, were at home in Noble Park. The movie "The Beautician and the Beast"[7] had just started on the television when the applicant and his wife, Lisa Favata, arrived[8]. They stayed to watch the movie and said that they were waiting for Stephen Morison. However, he did not arrive and they left at about a quarter to midnight or midnight.

33 The applicant and Lisa Favata arrived at Mrs Morison's home at Moriah Street at a time which Mrs Morison recalled as about 11.00 p.m. They brought with them some take away food. When they had finished eating, she drove the applicant and her daughter back home to Springvale South between 12.00 and 1.30 a.m.

Thursday 1 April 1999

34 Tuan Quoc Bill Banh was the registered owner of a white Mazda 323 hatchback (Registration No. FUT 750) that he owned for three years from 1999 to 2001. On the night of 31 March 1999, he parked the car in the driveway of his girlfriend's home in Heatherton Road, Springvale. When he awoke in the morning it was gone. The theft was reported to the police and a report was taken from him.

35 In cross-examination, Banh was shown photographs of a Mazda 323, one of which he said was similar to his vehicle, save that it depicted a two-door model. The headrests in the vehicle appeared to be similar to those in his car. He confirmed that a photograph of the four-door model shown to him was of the same type as his car, however the headlights appeared different from those on his vehicle.

36 Kevin Wanstall, of Mazda Australia Pty Ltd, said that between 1977 and October 1980, Mazda produced and sold the FA Model 323 which was a rear drive vehicle with seats that had the headrest incorporated into the rear seat back. He stated that from 29 September 1980, Mazda commenced selling the front wheel drive BD model Mazda 323, which had adjustable seat headrests. Wanstall confirmed that the Ford Laser at that time was a re-badged Mazda 323 and was built in the same factory.[9]

37 The deceased failed to attend his 9.15 a.m. appointment at the Clayton Veterinary Hospital and no telephone call to cancel or vary the appointment was received.

38 Colleen Joy Lang was a gaming attendant at the Springvale RSL who frequently worked on Thursdays. She stated that the deceased was a "regular" who attended the Springvale RSL to gamble on Thursdays. She stated that she was on duty on 1 April 1999 and the deceased did not attend that day. This was unusual.

39 Telstra call charge records disclose that on 1 April 1999, ten telephone calls were made to the deceased's home and were not answered. Eight of those calls were made by Lane. Another seven calls to the deceased's home on 2 April 1999 similarly went unanswered.

Good Friday - 2 April 1999

40 On 2 April 1999, between 1.15 and 1.30 p.m., Evan Neon arrived at the applicant's home to deliver the repaired video cassette recorder. He saw blood at the base of the front door and on the ground. He saw three cartons of beer on the verandah. Neon went around the back of the house to see if he could find anyone or raise any response. He also tried to contact the neighbours without success and then contacted the police.

41 At about 1.50 p.m., Senior Constable James Pearson and a Senior Constable Taylor received a call to attend at the deceased's home. They arrived at about 2.06 p.m. Pearson saw blood on the front porch. It appeared that the living room had been ransacked and there was blood on the carpet. Pearson gained entry through an open kitchen window and he discovered the body of the deceased on the hallway floor with a blanket covering him. He then left the unit by the kitchen window and contacted the dispatch service who then notified the Oakleigh CIB detectives.

42 The front door was found to be closed but unlocked and there was a set of keys in the lock on the inside.

43 The crime scene was examined by Sergeant Trevor Evans. There was blood staining and smearing at the bottom of the screen door and the adjacent jamb, with drops leading to a smear on the leg of an outdoor chair and on to a larger smear on the pavement. Further blood spots and smears formed a blood trail between the front door and the garage. Partial bloody shoe impressions were visible as well as a blood trail that continued across the driveway, along the footpath up to the first corner in Rayhur Street, then across the nature strip and out onto the road. The spacing of the blood spots suggested that they came from only one shoe, and that the person wearing the shoe walked from the front of the deceased's unit to the end of the blood trail at the edge of the roadway in Rayhur Street.

44 In the ransacked lounge room, there was blood staining and a drag mark on the floor. A walking stick lay in front of the stereo sound system. A blood stained finger ring was also found on the lounge room floor.

45 Underneath a pile of clothing in the kitchen was a small blue-handled nail file, with blood staining on the tip and both sides. There was a Wiltshire StaySharp two-knife scabbard set on the kitchen table with one knife missing. The floor of the kitchen and the hallway leading towards the bedrooms and bathroom was covered in vinyl floor tiles upon which bloody shoe impressions were observed.

46 The deceased lay in the hallway with his knees bent. He was partially covered by a green doona that also lay partly underneath him. There was extensive pooling of blood, splash marks and blood spray. He had received stab wounds on the left side of the abdomen and the left elbow and had sustained massive head injuries and welt marks across his legs and abdomen. A Wiltshire StaySharp knife, the blade of which was bent, was located nearby. It was lying in congealed blood and had adhered to the doona.

47 The main bedroom had the appearance of having been ransacked. In that room, the police found an ornamental knife which was also bloodstained. This knife was located underneath some clothing and other items in a built-in wardrobe. There was a bloodstain and a partial shoe impression on a jacket on the floor in the doorway to the room.

48 The second bedroom contained a double bed mattress which was wrapped in its plastic packaging. On the corner of the mattress was some blood, in a straight line, consistent with a bloodied implement or a bar making contact with the plastic. On the floor, through the application of Luminol, a pair of impressions were found, consistent with a pinch bar or a small jemmy bar having been laid there and then turned or knocked over producing a second mirror image impression[10].

49 At about 9.41 p.m. on 2 April 1999, Dr David Ranson, a forensic pathologist, attended at the unit. He observed that the deceased had sustained extensive blunt trauma injuries to his head with linear bruising to his chest and lower limbs, which would have been caused by a rod-like or rolled-edge object.

50 An autopsy was conducted a few hours later. Dr Ranson discovered over 25 separate blunt trauma injuries to the head and neck. Some of them, he considered, involved multiple injuries within themselves or were consistent with having been caused by more than one blow. The injuries caused multiple fractures of the skull and facial bones and were concentrated upon the front left side of the face.

51 There were a number of stab wounds on the body, one of which had been sustained on the left side of the neck. It had cut the carotid artery, severed the jugular vein and notched the deceased's spinal column. Next to this wound were two smaller stab wounds that had further produced haemorrhaging inside the neck.

52 In the chest area, there were two stab wounds over the front of the right shoulder and another over the upper and outer quadrant of the left breast region that extended into the underlying tissue. The wounds to the chest caused the collapse of the left lung. There were two incised wounds to the diaphragm, one of which cut through the bowel. The other went down to the spinal vertebra where the weapon had notched or indented the spine. Dr Ranson concluded that the stab injuries had been inflicted with considerable force.

53 Defensive injuries, including fracturing of the fingers, were found on the hands and arms of the deceased.

54 In the opinion of Dr Ranson, the cause of death was the injuries to the head and the neck. The haemorrhaging associated with the stab wounds suggested that the deceased was still alive at the time that they were inflicted. However, the fact that the chest and abdomen had not filled with blood indicated that he did not live long after they were sustained. Dr Ranson concluded that the two knives found by the police could have been used to inflict those wounds.

55 A forensic scientist, Maxwell Jones, examined the blood spatter pattern surrounding the deceased. He concluded that the deceased received at least one injury while he was at or near the adjoining entrance door; that he was then dragged into the lounge room and left momentarily in front of the television set; before he was dragged to the location in the hallway where he was found; and where he received multiple blows upon his head with an implement and was stabbed in the neck and abdomen.

56 DNA testing did not disclose the presence of DNA attributable to a person other than the deceased.

Subsequent events

5 April 1999

57 On Monday 5 April 1999, Senior Constable Matthew Munding found a 1980 model white Mazda 323 (Registration No. FUT 750) outside 24 Spring Road, Dingley. The vehicle had been abandoned. The car was returned to its owner, Tuan Quoc Bill Banh, who did not notice any blood or anything else unusual about it.

8 April 1999

58 On a working day after Easter, Grant Morison noticed that the applicant was wearing running shoes instead of work boots. In response to his enquiry as to why this was so, the applicant said that he had spilt acid on his boots. He was directed to purchase another pair from Barrow Building Supplies[11]. This purchase was made on 8 April 1999.

59 Eugene Roche, the property officer at the Springvale Police Station, produced the property book for Springvale Police Station for the month of April 1999 containing an entry by Senior Constable Barbara Hall on 8 April 1999. The book recorded the finding or handing in of a mountain bicycle in Burden Park on that day. Burden Park, is on the south-east corner of the intersection of Springvale Road and Heatherton Road in Springvale. After about six months, the bicycle was returned to the finder.

The Applicant's First Interview - 15 April 1999

60 On 15 April 1999, the police executed search warrants at the applicant's home where they seized a pair of "Blundstone" boots.

61 The applicant took part in a videotaped police interview[12], the substance of which can be summarised as follows:

He had met the deceased once about three or four weeks earlier when he went for a drive with Stephen Morison. Morison's reason for the visit was to discuss the deceased's arrangements for moving to a new home. He recalled sitting down in the house and being shown photographs of the deceased's new home. He said that they stayed for about half an hour before leaving to visit George Marangoudakis. He stated that he had first heard about the death of the deceased when Stephen Morison telephoned him either on the night of Good Friday or on Easter Saturday morning.

On 31 March 1999, his wife and he visited Marangoudakis, at about 8.00 p.m., where they remained until about 1.00 a.m., before driving home in a white Ford Laser (Registration No. EDS 981) which they had borrowed from Stephen Morison. He stated that his wife was in the process of purchasing the vehicle and had been paying for it in instalments. He stated that when they visited Marangoudakis, they were told that Stephen Morison would be coming around later. Accordingly, they waited until very late, before leaving at about 1.00 a.m. He stated that they drove back to 488 Springvale Road and that they did not return the vehicle to Mrs Morison until late the following afternoon.

He wore Blundstone work boots at work and he had only one pair which had been recently purchased. He stated that his previous boots had become "corroded away from the cement" and had been thrown out about a month earlier. It was put to him that he had told his employer, Grant Morison, that his boots were no good because he had spilled acid on them from a car battery. He said that he was talking about another pair of boots. He confirmed that he recently purchased running shoes at Northland in Preston but denied having sold any electrical goods to the deceased. He denied having had any dealings with him.

62 The applicant agreed to provide a blood sample and his fingerprints.

Matching of Shoe Impressions with "Oliver Hy-Test" Work Boots

63 Crime scene examiner, Sergeant Evans, made a comparison between the shoe impressions found in the deceased's home and a test impression of a size 7 "Oliver Hy-Test" work boot[13]. Evans concluded that the shoe impressions were created by either a size 7 or size 7 1/2 "Oliver Hy-Test" work boot which had identical soles.

64 Brett Huggins, the quality manager for "Oliver Footwear", confirmed that the shoe impressions were made by their Series 23 sole. They commenced producing the Series 23 in 1993 and it was still in production in 1999. Huggins stated that the shoes[14] bore the current Series 23 sole and confirmed that the only difference between a size 7 and a size 7 1/2 was in the girth of the upper part of the sole.

65 In cross-examination, Huggins said that the average annual production of the "Oliver Hy-Test Series 23"was between 100,000 and 150,000 pairs per year. They could not be resoled and they were available in many outlets throughout Australia. The boots were supplied to various companies and government bodies. Huggins was unable to say whether that style of boot had been copied but said that his company was the only known manufacturer.

Scenario Evidence

66 In August 2001, the Police Undercover Unit commenced "Operation Hawksburn".

67 On Saturday 18 August 2001, the applicant was in custody at Mill Park Police Station having been charged with the theft of petrol from a car and handling stolen goods. A covert police operative, "J", who had been placed in the cells with him, engaged him in conversation. "J" claimed that he was part of a professional crime syndicate and that they were always looking for new members. The applicant, who expressed interest, gave "J" his home telephone and mobile telephone numbers.

68 On Tuesday, 28 August 2001 "J" rang the applicant and they arranged to meet at an hotel in Richmond.

69 In this scenario[15], the applicant was instructed to keep watch while "J" met another operative, "C", in the hotel bar. He was directed to keep watch on the other person when "J" left for a short time, and to report whether "C" spoke to anyone or made telephone calls. It was indicated that there was some concern that "C" might be an informer.

70 The applicant reported that "C" had made a telephone call as soon as "J" left. When it was agreed, in due course, that "C" must have been an informer as suspected, they discussed what they should do with "him". The applicant said, "I've already taken three cunts down in my life". He then told "J" that he had successfully committed murder. His wife suspected he had killed the person, but no one knew that he was actually responsible. He said that his wife had provided him with an alibi and that he had caved in the victim's head.

71 The applicant soon raised the topic of his "little murder" again, indicating that he wore a balaclava and overalls. He said that his victim kept saying "I know who you are", so he put a knife straight through his throat and another through his heart. The applicant said that the investigation went on for twelve months and he had not heard from the Homicide Squad since, because they had no evidence implicating him.

72 The applicant stated that he took the clothing he was wearing at the time of the murder to the tip, to which "J" replied that, in the "gang", they always burned such evidentiary material. "J" explained how it was preferable to be working as part of a group, where the members trusted each other and all shared in the proceeds of their activities.

73 The next scenario was staged on 30 April 2001. On this occasion, the applicant again stated that he had killed someone. He said that his wife supported him and provided him with an alibi to the effect that he was at home when she knew that he was not. He said that she told him that she had been interviewed by the Homicide Squad and that she had supported him. The applicant told "J" that he had disposed of his clothing and had used a stolen car. He said that the police wanted his boots because there was a blood print on the floor, but he had buried them and, on the day after the murder, he bought new boots. The applicant said that his brother-in-law had been stealing small sums from the victim and that he (the applicant) thought that he would take all that he had. He said that he obtained $3,500 but had to kill the deceased because he had identified him. He suggested that the deceased must have recognised his voice. The applicant said that he "whacked him" with such force that the deceased went down to the floor. He tried to crawl out the door but the applicant dragged him back and finished him off.

74 After the scenario activities on that day had been completed, the applicant was asked for his full name and date of birth which "J" would give to his "boss" so that the applicant could be "checked out". It was explained that they had to make sure there were no loose ends that could present a problem for his membership of the group.

75 On that same day, a further conversation between "J" and the applicant took place[16]. The murder was discussed again. The applicant said that his victim "went down" in one hit and that "dead men don't talk".

76 The next scenario was acted out on 5 September 2001. The applicant told "J" on this occasion that the police were not pursuing him, but were still interested in his brother-in-law, Stephen Morison. The applicant said, "Cause they reckon he'd done but he hadn't done it ... I did it." He said that his brother-in-law did not know that he was responsible. He explained that the police had taken his DNA, but that everything incriminatory had been burnt, save for his boots. He said that they had been thrown into a rubbish bin a couple of streets away and would have gone to the tip.

77 The final scenario was staged on 12 September 2001, with the applicant being taken to meet the "gang's boss", "T", in the Crown Towers Hotel[17]. "J" emphasized to the applicant that it was important for him to respond truthfully to all of "T's" questions.

78 The applicant was left alone with "T" in Room 810 of the hotel. "T" told him that "J" had recommended him as a potential gang member. The applicant responded that he wanted to take part in "big jobs" with them. He presented himself as having the qualities that were needed, saying that he was prepared to kill, if necessary. "T" then said:

"It's very very easy to say I'll go the whole way.

FAVATA You know, like I've done it before. And I've got away with it.

[T] Okay, well have you done it before, and [J's] mentioned this.

FAVATA You know, it's not something I would even bring up, if I didn't trust him.

[T] Yeh.

FAVATA But you know,

[T] Well I'd hope not.

FAVATA Well fuck, it's gonna cost me fuckin' twenty fuckin' five odd years. Fuck that. You know, it's not something you just talk about.

[T] Well, not it's not and this is where I say, like, if you were just big noting and gobbing off ...

FAVATA Yeh.

[T] ... to impress [J], well you know these things ..

FAVATA No.

[T] ... that, that's human nature. If you've got the ability and the balls to do that, then that's something that for me, and with what we do, is very useful, like this bloke that, that's fuckin lagged [J], he's a problem for me. He is a fuckin big problem.

FAVATA Well I went out with [J] to find this cunt. Just you know, that's that's how loyal I feel when cunts lag you in, that's the position they put themselves in, that's the position they belong.

[T] Well you know, that tells me, that does tell me a couple of things. It's an indication of your respect for [J] and it's an indication of the size of your balls. But how smart are you? Like, okay, you say that you done it before, and I gather by the fact that you're still sitting here, to a certain extent you got away with it.

FAVATA Yeh, that's right, I did get away with it, and I ...

[T] You never get away with it.

FAVATA Well ...

[T] These blokes will come looking for you for five years, ten years, fifteen years.

FAVATA Well I, then well I hope so I got away with it, well no-one knows about it, whom and who it was, but me. The day, the day that St Kilda fuckin armed jacks come and got me, my missus stuck fat by me to say that I was in bed with her that night. So my alibis sort of stuck fat. She stuck fat, she she never knew, or to this day even knows that I done it."

79 The police had taken both of his cars, and samples of his DNA and his blood, but he said that they only came to him because his brother-in-law had named him.

80 I would add here, having taken the opportunity of viewing the video tape recording of this conversation that I could not detect any suggestion in the applicant's demeanour or manner of expression that these statements were made thoughtlessly, in a boastful fashion, or that the applicant may not have appreciated the full significance of what he was saying. Indeed, he made the point himself that "it's not something you just talk about".

81 The applicant then went on to provide further detail about the murder. He said that he went to the deceased's home to take all his cash but something went wrong and he "ended up" killing him. He said that he had sold some stolen goods to the deceased[18] and the applicant's brother-in-law had informed the police about it[19].

82 He said that he knew the deceased was a gambler who kept a large amount of cash in the house. He recalled seeing his brother-in-law taking notes out of the deceased's wallet while it was lying around, and the applicant said that he thought that he could do this himself and take all the cash that the deceased had. He explained that his work as a concreter constituted a form of alibi, because he made $800 a week, and accordingly would be able to assert that he had no need to be a thief.

83 He said that he had just stepped inside the front door of the deceased's unit, which was shut behind him, when he asked Mr Macumber where he kept his cash. He said that the deceased said, "I know your voice" at which point the applicant struck him on the head with a steel bar. He said that the deceased dropped to the ground and tried to crawl outside for help, but he dragged him back.

84 He explained that the boots seized by the police did not match the prints found by the police. He said that he had disposed of the pair that he wore at the scene about two days after he killed the deceased. He said that he got rid of his clothing at the tip when he took out his employer's truck to deposit broken concrete. He said that the clothing was dumped with about six cubic metres of broken concrete. The applicant said that he used a stolen car, of the same type as the car he owned, and that he abandoned the vehicle at a location which was a 10 to 15 minute walk away from where he lived. He said that he stole the car from another location about 20 minutes away from his house and that he rode a bicycle to get to where the car was. He said that he then stole the car and later abandoned it. The applicant said that he stabbed the deceased with a knife taken from the deceased's own home.

85 The applicant recounted that he knocked on the door of the deceased's home and that, as soon as it was opened, he forced his way inside. He was wearing a balaclava and gloves. The deceased went to pick up a baseball bat which he had nearby, but he did not have time to reach it before he was struck on the head with a crowbar. He said that the crowbar was taken to the tip with the clothing, but that he left the knife behind, because he was "gloved up". He described the knife as a bayonet that the deceased kept as some sort of ornament. He had already taken the cash when he stabbed the deceased and the reason he had stabbed him was to ensure he could not talk.

86 "T" expressed concern that there was a chance that the car had blood in it and the applicant would have problems if the police could connect him to it. The applicant said that that was not a problem as the only item of clothing that he removed while driving was the balaclava. He said that he stole the car from a driveway in Noble Park. It was an old Ford Laser that he was able to start by snapping the steering lock. The applicant said that there was no hair left in the vehicle, which did not have a headrest.

87 The applicant said that the deceased put up a fight. He said that he saw the deceased start to move backwards towards a baseball bat, so he immediately struck him. He delivered 10 blows, and that after the second of them, the deceased stopped resisting.

88 "J" and the other covert operatives returned to the hotel room and the applicant was taken downstairs for a drink and then taken home[20].

Arrest and Second Interview - 17 September 2001

89 The applicant was arrested and interviewed on 17 September 2001[21]. He repeated that what he had told the police in his previous interview was the truth. It was put to him that over the previous couple of weeks he had been associating with a person called "J" and another person called "T". He denied knowing them. When shown a video-tape recording of his meeting with "T", he said that he had told the operatives "a bit of shit" about a murder that had happened, because he wanted to make money.

90 There can be no doubt from his physical reactions that the applicant was deeply shocked when he realized that his conversations with the operatives had been recorded. He commenced to perspire profusely and gave the appearance of being totally dismayed.

91 The applicant denied being involved in the murder of the deceased and claimed that he fabricated his story to the operatives because he wanted to impress them. He agreed that no police officer had told him that a crowbar had been used as a murder weapon, but said that, as the police had taken one from his home, he assumed that a crowbar had probably been used. He confirmed that he had worked for the "Met" and that Stephen Morison had been stealing money from the deceased.

92 He denied selling any goods to Mr Macumber, but said that he had given a television set, a video cassette recorder and a lawn mower to Stephen Morison and he did not know whether he had sold them.

93 The applicant said that he had visited the deceased's house only once with Stephen Morison, and that all that he knew about the murder was that the deceased had been bashed. He did not know that he was also stabbed. He agreed that he had told the operatives that he stabbed the deceased through the neck and in the heart. It was put to him that that was precisely what had happened. The applicant maintained that he fabricated his story and that at the time of the offence he was at home. The applicant said that his shoe size was 7 or 7 1/2 and that he had never worn any other shoe size in his adult life.

The Case for the Prosecution

94 The Crown contended that it was apparent on the whole of the evidence that the applicant had caused the death of the deceased and that, when he did so, he intended to kill him. Although it was conceded that the operation conducted by the police to obtain the evidence of his guilt involved the utilisation of undercover operatives, the whole situation, when viewed against the background of the taped and video recorded conversations, was not one in which any risk existed that the applicant may have been manipulated into making a false confession.

95 The prosecutor described the deceased as a generous and vulnerable individual with a "drinking problem". Stephen Morison, a man who played chess with him, took advantage of these characteristics and stole money from his wallet. Unfortunately, the applicant not only had knowledge of Morison's conduct but also of the deceased's poker machine winnings. Although, the prosecutor submitted, Morison had initially been a suspect, there was not a shred of evidence to suggest that he had anything to do with the death of Mr Macumber.

96 The prosecutor submitted that the covert operation was launched in a setting where the applicant was an obvious suspect for the deceased's murder. The operatives set about encouraging him to talk by presenting him with the prospect of joining a criminal gang that would offer a superior criminal lifestyle to the one which he enjoyed to that time. Although it seemed clear that the applicant told some lies and engaged in displays of bravado to secure their approval, it was submitted that, when all of the evidence was analysed, he could not have been fabricating the central features of his story. True it was, the prosecutor conceded**,** that the applicant boasted that he had "done" three persons, but, it was pointed out, he only ever talked about one and that was the murder of the deceased. Of particular importance in this context, the prosecutor contended, were the injuries that the applicant said that he inflicted upon the deceased, as these were consistent with the evidence of Dr Ranson, the pathologist. He argued that apart from the pathologist and the investigating police officers, almost the only person who would have possessed knowledge of such specificity was the murderer. In support of this contention, it was pointed out that when the applicant was interviewed by the police, he claimed not to know how the deceased died, asserting that no one had told him about it and that he had not read about it either. This, the prosecutor argued, was in stark contrast with what the applicant told "J" on 28 August 2001. He reminded the jury that, in that conversation, he described how he put a knife straight through the deceased's throat, when the victim indicated that he recognised his voice.

97 With respect to the applicant's conversation with "J" on 28 August 2001, in which he described the deceased's age as being 35, 38 or in his age group, the Crown argued that his motivation for lying may have stemmed from a desire to present himself as a fearless individual, feeling that it may have been less impressive had he disclosed that he had stabbed an obviously vulnerable person in his 50's.

98 In his conversation with "J" on 30 August 2001, the applicant said that he used a bicycle and stolen car to get to the deceased's home. There was evidence, the prosecutor contended, which supported this claim.

99 He demonstrated knowledge of the presence of blood on the floor of the deceased's unit and explained why and how he discarded his boots. It was hardly coincidental that the killer left the impression of a size 7 or 7 1/2 boot, the applicant's shoe size. Although there was some inconsistency in relation to the manner in which the applicant stated that he obtained the boots, this, it was said, was understandable given the circumstances that both his father and he had been employed with "the Met" and had purchased boots through the Public Transport Corporation in the past. However, and unfortunately for the applicant, he knew what brand of boot left the prints in the blood, as he told "T" that the police took his "Blundstones" and that a different brand of boot had left the impression at the scene.

100 The prosecutor submitted that it was apparent that the applicant was anxious to be accepted by "T" at the time of their meeting at the Crown Towers. However, he was warned by "J" to tell the truth and not to "make it up to sound better". This, the prosecutor argued, was reinforced when "J" stated that "T" had made enquiries concerning the applicant and would ask him questions about the matter. What stopped the applicant from departing too far from the truth or over-embellishing his story was that it had been made clear to him that "T" had sufficient contacts in the police force to enable him to check anything that he said. The prosecutor conceded only one occasion on which "T" put words in the applicant's mouth and this concerned the description the applicant was giving "T" in relation to the type of knife used to stab the deceased. "T" had referred to it as a "bayonet" when talking to the applicant. However, according to Dr Ranson, there were two knives that could have been used, the Wiltshire StaySharp knife and the ornamental knife. He submitted that although both weapons were capable of causing the wound to the chest that penetrated as far as the spine, it seemed more likely that the ornamental knife had been used, as it was significantly bigger and heavier.

101 The prosecutor then pointed to the applicant's knowledge of the date and time of the attack. The applicant had stated that it was "between 2 and 3 o'clock in the morning, the day before Easter". That certainly accorded with the evidence, it was said.

102 The applicant stated that he made his way to the deceased's unit by riding a bike from home and then stealing a motor vehicle from a drive way. It was beyond coincidence, the prosecutor submitted, that a bike was found in close proximity to the place from which the Mazda 323 was stolen. The applicant told "T" that the location at which he stole the vehicle was 20 minutes travel from his home. This, the prosecutor submitted, was also consistent with the evidence. He told "T" that the car was unlocked. This was consistent with the evidence of the vehicle's owner. Although there was some inconsistency in relation to the type of car that the applicant stated he stole, it was argued that he may well have confused the Mazda 323 with a Ford Laser, as they were very similar.

103 With respect to the applicant's version of his attack upon the deceased, the Crown submitted that the description given was consistent with the evidence of Maxwell Jones, the blood spatter expert. When he was asked by "T" why he struck the deceased, the applicant stated that he had recognised his voice and that "dead men tell no tales". The Crown submitted that it was highly unlikely that the applicant invented this reason.

104 The applicant told "T" that he used a crowbar to strike the deceased. Again, the Crown submitted, the only person who would have known that such a thing was a weapon that was used in the crime would be the murderer. In support of this contention was the evidence that Luminol testing on the floor in one of the deceased's bedrooms revealed marks consistent with a crowbar lying down and then being turned over virtually in the same spot. Further in support of this notion was the pathologist's evidence that the deceased had linear bruises to his left leg consistent with a crowbar like object being used to hit him repeatedly.

105 In his confession to "T", the applicant disclosed that he did not leave the crowbar at the scene, but stated that the knife was not taken away as it came from the deceased's home. Again, the prosecutor submitted, this was consistent with the evidence and unlikely to have been known to any save the killer or those directly involved in the investigation.

The Case for the Defence

106 Counsel for the applicant submitted that it was not possible to be satisfied beyond reasonable doubt that the applicant was responsible for the killing of the deceased as there were too many inconsistencies, half-truths and dubious answers in his version to the operatives which could not, on their face, give any finality to the investigation.

107 Counsel submitted that when all of the facts were taken into account, there certainly was another definite suspect in this case. This was Stephen Morison, the applicant's brother-in-law. The possibility could not be totally excluded that he, and not the applicant, was responsible for the deceased's murder. Indeed, he continued, if "J" had met Morison in the same circumstances that he met the applicant, Morison may well have found himself in the situation of the applicant.

108 Counsel submitted that Morison's evidence given in the trial was substantially different from what he told the police. It was known, he argued, that Morison had over a period of months taken money from the deceased's wallet and, according to his evidence, had visited the deceased on the Tuesday night. This was to be contrasted with his interview in 2001, in which he stated that he visited the deceased on the Wednesday. When Morison was queried in relation to the change in day, he provided, counsel submitted, three different explanations. Morison, it was pointed out, lived on a pension and had in the past borrowed a significant sum of money from the deceased. The hypothesis was advanced that the deceased may have realised that Morison was taking money from him and it may have been the case that a confrontation occurred between them on the Wednesday evening. Also of significance, counsel submitted, was the evidence that Morison attended the Fallons' home after he heard of the deceased's death, telling them that the deceased had been bashed to death. Counsel asked rhetorically, how could he have possessed that knowledge when the police themselves had not released that information? His conduct at the Fallons' home, counsel argued, was also indicative of a person with something to hide, as he appeared anxious and often paced back and forth before leaving a short time later. Counsel submitted that Morison's visit to the deceased's home would have been on the Wednesday night as he told Mr and Mrs Fallon that he had noticed three cartons of beer on the porch. Counsel submitted that Morison lied about his presence at the deceased's home on the Wednesday night and he lied about not seeing the beer cartons on the porch. These lies, counsel argued, were of real significance, as they related to the question of who killed the deceased and were at odds with the Crown case.

109 Counsel for the applicant also attacked the evidence of the crime scene examiner, as it appeared, he submitted, that a thorough and methodical search of the premises had not been made. Counsel referred to "various mysteries" arising from the crime scene. These included the clothes on the kitchen floor and an issue concerning whether the front door was found to be locked. Counsel also pointed to the applicant's confession in which no indication was given by him as to why the house was in that condition. Counsel argued that it was apparent that the person who entered the deceased's premises was more than likely to have been known to the deceased as there was no sign of forced entry. Furthermore, counsel questioned whether the deceased would have opened the door at that time of night without first checking who it was, and suggested that the deceased would not have opened the door to a man wearing a balaclava and wielding a jemmy bar, as described by the applicant.

110 With respect to the bloodied footstep going to the car, counsel submitted that no theory had been advanced in relation to this feature of the crime scene. Although it was possible that the perpetrator could have stepped in a pool of blood, counsel submitted this possibility was unlikely.

111 Counsel also submitted that the deceased's banking records and the Clayton RSL records, were important evidence. He suggested that the figures to be found in these records indicated that the deceased was a person who regularly gambled and, on the basis of statistical probability, regularly lost. Further, counsel submitted, the figures did not indicate that the deceased was a wealthy man, nor did they add support to the proposition that he held cash in his house.

112 The Crown case, counsel submitted, rested on the taped confessions made by the applicant to the undercover operatives. Although they seemed to provide an indication of his guilt, what they really amounted to were dubious admissions and half-truths uttered in circumstances that amounted to a fantasy. He disputed the prosecutor's argument that the undercover operation had various inbuilt safeguards and submitted that the process itself was seriously flawed, as it involved no appreciation of the context in which the discussions took place. It was argued that it was not possible to sustain an argument that these were trustworthy admissions, for this would be to ignore the realities of the dynamics between the applicant and the operatives and the effect of the manipulation in which they were engaged. It was apparent, counsel argued, that the applicant was not only in an impecunious position at the time, but was also affected by drugs, and that much of what he said had no relationship with reality.

113 With respect to the level of knowledge that the applicant demonstrated concerning the details of the crime, counsel noted that the applicant had, on a previous occasion, attended the home of the deceased with Morison, who later became a murder suspect. He had also been taken to the police station where he had been interviewed for a number of hours. These occurrences were of such significance that he would, as matter of common sense, have received and retained information about the matter. When the applicant was questioned concerning the source of his information he said that he did not know. It was submitted that this response made perfect sense in the circumstances, as it would be extraordinary if he were able to recall on what specific day he received an idea or a particular piece of information in relation to what had taken place.

114 With respect to the applicant's statements to the effect that he stabbed the deceased straight through the throat and heart, counsel referred to the evidence of Dr Ranson that there were wounds inflicted to other areas.

115 Concerning the manner in which the applicant claimed to have disposed of his clothing and boots, counsel submitted that his statements were totally unreliable and could not lead to any conclusion. He had, in conversations on 28 August and 5 September, changed his story from burying them to burning them and when queried as to his different version by "J", the applicant responded that he burnt his clothing and buried the boots. Counsel further argued that the applicant's change in story may have been influenced by an earlier conversation in which "J" told the applicant that he should have burned the items.

116 Although the applicant indicated that Blundstone boots were not used, when this was viewed against the background that he knew the police were interested in boots, he surmised, counsel argued, that Blundstone boots did not fit the footprint in the deceased's home. It was the evidence that although the applicant had owned "Oliver Hy-Test" boots and that that brand matched the boot print left at the deceased's home, there were "probably a million pairs of them floating around", counsel submitted. Further, the applicant's statement that there was a footprint left on a floorboard at the deceased's house was incorrect, as there were no exposed floorboards in the premises.

117 In relation to the time the deceased was killed, counsel submitted that it was quite clear that when the applicant spoke to "T" he indicated that the killing took place on the morning of Good Friday. Further, with respect to the Crown's argument that the murder was committed on the Wednesday night, counsel referred to the evidence of Marangoudakis and Martin, who stated that the applicant and his wife attended their home that night, watched a movie and left at approximately 12.00 or 12.30 a.m. Of particular interest, counsel submitted, was their evidence that on that particular night Stephen Morison was also supposed to be present. Counsel submitted that it was possible that the deceased may have been killed whilst the applicant and his wife were at the home of Marangoudakis and Martin.

118 Counsel argued that the interview with "T" was full of exaggerations, inconsistencies and lies. One example was the applicant's reference to a baseball bat. Counsel argued that the Crown knew that that was not true and so used their imagination and knowledge that there was a walking stick in the deceased's house to argue that the applicant may have mistakenly thought it was a baseball bat.

119 With respect to the applicant's conversation with "T" in which he stated that the deceased recognised his voice, counsel submitted as extraordinary that, having met the applicant only once, the deceased would have been able to do that.

120 Counsel submitted the reference to the use of a bayonet was fabricated by the applicant and that in the tape recorded conversation between the applicant and "T", it was the applicant who had in fact described it as "a knife that fitted on the end of a rifle". This conflicted, counsel argued, with the apparent use of the ornamental or Wiltshire knife in the attack.

The Grounds

Ground 1

121 Although this ground is broadly expressed, unlike the position in Tofilau[22], no argument resting on the concept of basal voluntariness has been advanced on behalf of the applicant. That is hardly surprising when regard is had to the enthusiasm which the applicant showed at the prospect of becoming a gang member and reaping the anticipated rewards to be secured from participation in the gang's activities.

122 The arguments in support of the ground were directed to the asserted errors made by the trial judge when addressing the issue of voluntariness in circumstances where it could be seen that the statements were made as a consequence of the holding out to him of inducements. As in Tofilau, the claim was made that the undercover operatives were persons in authority within the meaning of the common law rule which excludes, as involuntary, statements made in consequence of the holding out of an inducement by a person in authority where that inducement is not withdrawn prior to the making of the statement. Accordingly, it was contended, the evidence had to be excluded.

123 The short response to that submission, and for the reasons advanced in Tofilau, is - I disagree. The operatives were not persons in authority for the purposes of the rule.

124 Counsel also called in aid the contention made in Tofilau that a statement could not be regarded as voluntary in circumstances where the maker had been deliberately misled as to the identity of the person to whom it was made or the context in which he was speaking. This argument was advanced before the trial judge and was linked to another relating to the applicant's right to silence and the area of operation of sections 464 and following of the Crimes Act 1958. As I understand the position, counsel at the trial submitted that there could not be, in any real sense, an exercise of a free choice to speak or remain silent where the circumstances under which it had to be exercised were the product of conscious deception and subterfuge, and certainly where that conduct was undertaken in contravention of statutory provisions designed to protect the rights of suspected persons.

125 His Honour addressed these matters in his Ruling and concluded correctly that those sections had not been breached. There was no argument presented by counsel for the applicant in this Court that he had erred in this respect. The broader question posed has been the subject of attention in my judgment in Tofilau and there is no need to repeat what is there set out on this aspect. It is sufficient for present purposes to state that the trial judge did not fall into error on this basis.

Ground 2

126 Complaint is made under this ground concerning the statement made by his Honour in his Ruling on the admissibility of the evidence of the self inculpatory statements made by the applicant that "there was no preceding inducement to talk". Counsel for the applicant in this Court correctly claimed that it was clearly beyond dispute that the police operation was designed and implemented to persuade his client that there were great benefits to be derived from membership of the gang, but that in order to receive those benefits he had to show that he was "worthy" of becoming one of them. This he would demonstrate by being totally forthcoming about his earlier activities and, in particular, the murder of which he was suspected. It is, it seems to me, apparent that the applicant required little if anything more than the opportunity to participate, but there can be no doubt that there were inducements proffered and that he was impressed by them.

127 At face value therefore, the statements of his Honour seem curiously at odds with the whole case insofar as the scenario evidence is concerned. However, when the passage is considered in context, I think that it is unlikely that his Honour was attributing to "inducement" the meaning it carries under the common law rule and that he employed it to encompass a broad range of external pressures that could result in the overbearing of the will. What he said was:

"[Counsel for the applicant] made a series of submissions to me which he said went to the issue of the voluntariness of the alleged admissions. His submissions went not only to the issue as familiarly stated. But I will first go to that. I refer again to what was said at para 50 of Swaffield/Pavic. To be voluntarily made, the confessional statement must have been made in the exercise of a free choice to speak or be silent. There was here no duress or intimidation or persistent opportunity or sustained or undue insistence or pressure to talk about the killing of the deceased. There was no preceding inducement to so talk. The accused opened up the subject at a time and in a manner of his choosing. He continued to do so, even after being told that he did not have to do so."[23]

In any event, if his Honour did make the error claimed, by reason of the finding that the profferors of the inducements were not persons in authority within the meaning of the rule, the error could not affect the position.

Ground 3

128 In support of the claim that the applicant's inculpatory statements and surrounding evidence should have been excluded by the trial judge in the proper exercise of discretion, reliance was placed upon a number of arguments, some of them by reference to the submissions presented in the matter of Tofilau. There were, however, several differences that had to be taken into account. For example, it was argued in Tofilau, that:

"The said confessional statements were induced and elicited by and in the context of a course of conduct which could only be characterized as extreme, protracted, extensive, persistent, sophisticated and elaborate."

129 The contentions on this aspect have been addressed in my judgment in that case. Whilst the police engaged in the operation here may well have anticipated that the gaining of the applicant's trust to the extent that he was prepared to talk to them about what he had done could have taken some time and a large number of interactions, he required, as I have earlier mentioned, little encouragement and was quite happy, it seems, to boast, at a very early stage, not only about activities in which he had or may have been engaged but others in which it would seem highly likely that he had not.

130 This case does not present some of the factual considerations to be seen in some of the cases[24] before the Court, where counsel's assertion might be perceived as more appropriate, but does raise issues at three levels.

131 First, there is the general question posed in all of the five cases: are self inculpatory statements secured through the employment, by the police, of such techniques, to be excluded on the ground that their admission would be contrary to public policy? The answer, as it so commonly is in the criminal law, is - possibly yes but not necessarily. In any given case both the precise conduct and all of the relevant circumstances, including the impact of that conduct upon the maker of the statement and the possible unreliability of the statement procured, must be taken into account. Of itself, the use of deception and subterfuge by investigating police members does not provide a sufficient basis for the exclusion of the evidence on this ground. The trial judge was well aware of the proper approach to be adopted, quoting the following passage from Ridgeway v. R.[25]:

"The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity. It is neither practicable nor desirable to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community. A finding that law enforcement officers have engaged in such clearly improper conduct will not, of course, suffice of itself to give rise to the discretion to exclude evidence of the alleged offences or of an element of it. As with the case of illegal conduct, the discretion will only arise if the conduct has procured the commission of the offence with which the accused is charged."

"As to that passage from Ridgeway, I would make these comments. Although the circumstances there were different in a significant way, the focus there and in the instant case was on questionable police conduct. Subterfuge and deceit by the police will not always be inappropriate. Defining precise borderlines as to what is and is not acceptable is not practicable or desirable. Minimum police standards must be observed. All the circumstances must be considered."[26]

...

In Swaffield/Pavic, the court called for an assessment of whether the evidence could be seen to have been obtained at a price which is unacceptable having regard to prevailing community standards. That involves a consideration of a number of matters, some of which have already been specifically addressed. The eliciting was not exceptional. There was no, or at least no significant, impropriety on the part of the police. No criminal activity was engaged in, although much was talked about. There was deception on the part of the police, but it was within the bounds treated by past decisions as appropriate. The accused had not chosen to exercise on a continuing basis his right to choose not to answer questions, so there was no clear disregard of that right."[27]

His findings of fact with respect to the police conduct were open on the evidence and the manner in which he exercised his discretion was clearly justified.

133 Secondly, counsel relied upon what he asserted was the effective undermining of the applicant's right to silence as a consequence of the police trickery and subterfuge as an important consideration in the exercise of judicial discretion in such cases and submitted that inadequate weight was given to it by the trial judge.

134 The trial judge directed his mind to this possibility and asked himself the question, "Was there any infringement of the accused's right to silence?", recognizing that in Swaffield and Pavic there is a reference to:

"'an approach which looks to the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned' and next and specifically as to Swaffield, to admissions 'elicited by an undercover police officer, in clear breach of Swaffield's right to choose whether or not to speak.'[28]

...

[Counsel] put to me that, as the accused had given the police a clear indication of a desire to exercise his right to choose not to answer questions, any steps by the police to question him thereafter were, as with Swaffield, in clear breach of his right to choose whether or not to speak. I do not accept that. The instant case is a clear example of selective answering. As to that, I have noted what was said in Weissensteiner. This was not a case where the accused had positively exercised his right to silence in a continuing way. Rather, he chose to respond selectively to questions. He showed a particular interest in the subject of boots when it was raised, in a way that tended to suggest that he was interested in using the occasion to find out what information the police had. Such a conclusion was supported by aspects of what the accused later said to [J] and [T]."[29]

135 I am not persuaded that he erred in his approach to this aspect or the manner in which he exercised his discretion on this basis.

136 Thirdly, counsel submitted that no weight could be given to the applicant's statements to the undercover operatives when the extent of the boasting, lies and exaggerations are taken into account. In other words, it would be unjust for the applicant's words to be used against him in circumstances in which their reliability was seriously in question.

137 This too was the subject of attention by the trial judge. He concluded that there was substantial consistency between the statements of the applicant and the statements of relevant factual observations made by a number of witnesses to be called in the trial, which he set out in table form in an annexure to his Ruling. He referred to matters that militated against the acceptance of the applicant's statements as reliable including the "many lies and exaggerations" in his version to [T] and concluded that he was well satisfied that the admissions with respect to the death of the deceased were reliable.

138 Again, the findings of fact made were open on the evidence and I am unpersuaded that it has been demonstrated that the exercise of his discretion may have miscarried.

139 Next, counsel argued:

"the conversations admitted into evidence in this case contained continual references by the applicant to his (real or contrived) criminal history, including much talk (and boasting) of the many crimes which he had committed and the jail time which he had served; that is, evidence of bad character. As defence counsel argued, the content of the conversations was so prejudicial as to deny the applicant a fair trial".

140 The trial judge dealt with this matter appropriately, indicating that it may be necessary to excise certain parts of the evidence and that it was necessary for him to provide appropriate instructions to the jury. There has been no complaint made that he did not do as he promised and the adequacy of his instructions on this aspect has not been challenged.

141 Accordingly, I am of the view that Grounds 1, 2 and 3, which relate to the inculpatory statements of the applicant and the related scenario evidence must fail.

Grounds 4, 5 and 6

142 These grounds raise quite separate questions concerning the use of certain evidence as indicating the consciousness of guilt of the applicant of the murder of Mr Macumber and the instructions given to the jury by the trial judge with respect to this matter.

143 There were three pieces of evidence employed in this fashion. I set them out below under the headings (a), (b) and (c), and deal with each separately.

144 (a) In the course of the interview conducted at the homicide squad offices following the making of his various statements to the undercover operatives, a video-tape recording of his meeting with [T] was played to the applicant. It is apparent that he became extremely agitated and commenced to perspire profusely. The prosecutor, in his final address, invited the jury to conclude that the applicant had reacted in this fashion because he realized that he had admitted his actual guilt of the murder of the deceased. His Honour appeared not to have been much impressed by this line of argument and initially instructed the jury that the prosecutor had not sought to rely upon the applicant's reaction as demonstrating consciousness of guilt. However, after the prosecutor took the exception that he had made that claim, his Honour further instructed the jury, in what could be described as conventional terms, that the evidence could be used for this purpose.

145 Although I can see no basis in principle for excluding the reaction or demeanour of a person, in an appropriate context, from the kinds of behaviour that are capable of constituting implied admissions of guilt, as a practical proposition I consider that it would be rare indeed when a judge would be entitled to leave evidence of demeanour or reaction to events or disclosures before the jury on this basis. Among the reasons for concern would be the potential imprecision and unreliability of the observations. Frequently, but not here because the interview was recorded on video-tape, it would be very difficult for the jury, and indeed the judge for that matter, to be confident that they actually knew how the person did react. In any event, at most what could be observed would be the external manifestations of internal responses. The dangers of misinterpretation which, to some extent at least, may be influenced by the subjective views and attitudes of the observer are, I would suggest, apparent.

146 The situation in the present case constitutes a good example of one of the problems that can arise. If the applicant was guilty of the murder of the deceased and suddenly realized, as the prosecutor submitted, that he had unwittingly confessed to the police, then it would be hardly surprising that he became quite disturbed. If, on the other hand, he was not responsible and had made boastful lying statements to the operatives and suddenly realized that he was likely to be charged with the crime of murder because what he had said was being taken as the truth, then again it is not difficult to see that he might well become quite disturbed. I fail to see how the evidence of the applicant's reaction could be used in proof of guilt in the particular circumstances of the case. In short, the evidence had to be regarded as incapable of supporting the inference of consciousness of guilt.

147 In any event, having decided that the reactions of the applicant to the playing of the recording could be used in this way, although his Honour did remind the jury of the submissions by the applicant's counsel on this aspect, he did not provide any instruction with respect to the particular care with which they had to approach the dangerous task of drawing inferences from demeanour.

148 This complaint has been made out.

149 (b) Next, although the prosecutor did not rely upon the lie told at the commencement of the applicant's formal interview on 17 September 2001, that he did not know "J" or "T", as demonstrating consciousness of guilt, his Honour put the evidence before the jury on this basis.

150 There is no indication in the evidence (indeed the contrary appears to have been the position), that at the time he told the lie about knowing "J" and "T" he was aware that they were other than what they presented themselves as being; that is, members of the criminal gang with whom he was involved. The claim that by lying about his association with them he was impliedly admitting his guilt of the murder of the deceased was never made by the prosecutor and the inference of consciousness of guilt could simply not be drawn on the basis of that lie. If the trial judge was concerned that the jury might reason in that fashion, the proper course was not to provide an Edwards v. R.[30] type direction but rather to instruct them that it would not be proper to do so.

151 (c) In the course of his conversations with the operatives, the applicant stated, more than once, that his wife had provided him with a false alibi. Again the prosecutor did not rely upon these statements in proof of guilt by treating them as implied admissions demonstrating consciousness of guilt.

152 In my opinion, no Edwards type direction should have been given on this basis.

153 It follows that the trial judge fell into error in his treatment of the evidence encompassed by grounds 4, 5 and 6 of the application.

154 There is a distinct possibility - I would suggest a high probability - that the jury took into account the applicant's reaction to the playing of the video tape as evidence of his acceptance of the truth of what he had told "T" and "J" and that it may have served to remove any doubts that they possessed about the reliability of his statements. It certainly could not be said that this evidence and the other evidence put before the jury as demonstrating consciousness of guilt played no part in their reasoning towards conviction.

155 It is not contended by the Crown that in these circumstances the proviso to section 568(1) of the Crimes Act 1958 should be applied.

156 Accordingly I consider that the verdict of the jury cannot be permitted to stand and that a re-trial should be ordered.

[1] [1997] 2 V.R. 88 at 92. See also Zoneff v. R. (2000) 200 C.L.R. 234.

[2] On 23 January 2004, he was sentenced to 21 years imprisonment with a non-parole period of 16 years for this offence.

[3] Two invoices from "Barrow Builders' Supplies" respectively dated 18 November 1998 and 8 April 1999, were tendered as Exhibit "8".

[4] Exhibit "10".

[5] The relevant records and pay out slips were tendered in a bundle as Exhibit "9".

[6] Exhibit "A".

[7] Records produced by Foxtel Management Proprietary Limited record that on the Showtime pay television channel in Melbourne, on 31 March 1999, the programme entitled "The Beautician and the Beast" commenced screening at 10.04 p.m. and concluded at 11.46 p.m.

[8] Martin's recollection was that they had arrived at about a quarter to nine, but her estimate of the time was based on the fact that either "She Devil" or "The Beautician and the Beast" had just started on television and they were switching between the channels.

[9] Photocopies of the brochures of the respective FA and BD models of the Mazda 323 were tendered as Exhibit "14".

[10] A diagram of that impression was tendered as Exhibit "13".

[11] This transaction was recorded by an invoice dated 8 April 1999 (Exhibit "8").

[12] The videotape recording and transcript were tendered as Exhibit "23".

[13] Enlarged photographs of the two most complete shoe impressions and of the test impression were put in a triptych-style folder and tendered as Exhibit "12".

[14] The shoes were tendered as Exhibit "10".

[15] The transcript of the scenario was tendered as Exhibit "16".

[16] A transcript of this further conversation was tendered as Exhibit "18".

[17] A transcript of the audio-recorded conversations between the applicant and "J" on the way to Crown Towers was tendered as Exhibit "20" and the video-tape recording of the meeting inside Room 810 of the Crown Towers Hotel, was tendered as Exhibit "21".

[18] The applicant said that a couple of weeks earlier he had sold the deceased some stolen goods which included a lawn mower and a video, for the sum of $450, and the deceased had recorded this transaction by writing "Lorenzo, $450" on his calendar.

[19] The applicant's confession to "T" commences at page 17 of Exhibit "21".

[20] The transcription of the last conversation between the applicant and "J" on 12 September 2001 commences at page 37 of Exhibit "20".

[21] The transcript of that interview was tendered as Exhibit "25".

[22] [2006] VSCA 40.

[23] R. v. Favata [2004] VSC 7 at [19].

[24] R. v. Tofilau [2006] VSCA 40; R. v. Hill [2006] VSCA 41; R. v. Marks [2006] VSCA 42; and R. v. Clarke [2006] VSCA 43.

[25] [1995] HCA 66; (1995) 184 C.L.R. 19 at 37_._

[26] R. v. Favata [2004] VSC 7 at [15]. It should also be pointed out that his Honour referred to R. v. Swaffield; Pavic v. R. [1998] HCA 1; (1998) 192 C.L.R. 159; R. v. Lewis [2000] VSCA 140; [2000] 1 V.R. 290 at 312; R. v. Carter [2000] VSCA 6; [2000] 1 V.R. 175; R. v. Chimirri [2002] VSC 555; (2002) 136 A. Crim. R. 381; R. v. Franklin [1998] VSC 217; D.P.P. v. Ghiller [2003] VSC 350; (2003) 151 A. Crim. R. 148; R. v. Heaney and Welsh [1998] 4 V.R. 636; R. v. Juric [2002] 4 V.R. 411; R. v. Lewis Ruling, unreported, 15 June 1998; R. v. Roba [2000] VSC 96; (2000) 110 A. Crim. R. 245; R. v. Tofilau [2003] VSC 188; (2003) 149 A. Crim. R. 446; and R. v. Vale [2001] WASCA 21;

[27] R. v. Favata [2004] VSC 7 at [49]-[50].

[28] R. v. Favata [2004] VSC 7 at [27].

[29] R. v. Favata [2004] VSC 7 at [29].

[30] [1993] HCA 63; (1993) 178 C.L.R. 193 at 211.