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: