The interview with Mr King
22 His Honour rejected the evidence of the interviews with the insurance investigator, Mr King, upon the basis that to allow the admissions made in them would be unfair to the respondent, having regard to the circumstances in which they were made: s90 of the Evidence Act. As I have said, the appeal is directed to the first of those interviews, although his Honour's reasoning is applicable to both of them.
23 Mr King was formerly a detective in the NSW Police Force. He made his own inquiries about the fire and made an appointment with the respondent to interview him on 27 May 2002. The respondent's insurance broker advised him to have a solicitor present at the interview, and he arranged for a solicitor, who was also a personal friend, to attend. His Honour found that, prior to the interview, Mr King had reached an agreement with Det Thornton that he, Mr King, would undertake an investigation into the fire, including interviewing the respondent, not only on behalf of the insurance company which had engaged him but also on behalf of the police (except for the forensic scientific examination of exhibits).
24 The interview was conducted at the respondent's home. The solicitor, who had previously himself been an insurance company investigator, told the respondent at the outset that he had a contractual obligation to answer Mr King's questions if he wanted to pursue an insurance claim. Mr King at that stage saw the respondent as one of a number of suspects. However, he did not disclose that at any stage before or during the interview and he did not caution the respondent. Nor did he reveal that he was conducting inquiries on behalf of the police, and his Honour was satisfied that he chose not to do so to avoid the possibility that the respondent would decline to participate in the interview.
25 The respondent gave evidence, which his Honour accepted, that if he had known that he was a suspect or that Mr King was acting on behalf of the police, he would not have taken part in the interview without seeking legal advice. He said that he understood that he was contractually bound to answer Mr King's questions if he wanted the insurance claim to proceed. The solicitor gave evidence, which his Honour also accepted, that he had told the respondent before the interview that Mr King's investigation was a normal part of processing an insurance claim and that, if he had known that the respondent was viewed as a suspect or that Mr King was acting on behalf of the police, he would have provided the respondent with advice about the options open to him, including informing him of his right not to participate in the interview.
26 Otherwise, there was no suggestion of any impropriety in the conduct of the interview, nor was there any challenge to the reliability of the admissions made in it. After considering s139 of the Evidence Act and the common law position, his Honour concluded that Mr King was not obliged to disclose that he suspected the respondent or to caution him. However, his Honour continued:
…I am satisfied that Mr King prior to the first record of interview, while not obliged to inform the accused or his solicitor that he suspected the accused of lighting the fire or to caution the accused, should have on the grounds of fairness informed the accused or his solicitor of his changed role and in particular that he was now conducting inquiries on behalf of the police as well as the insurance company…If Mr King prior to commencing the first recorded interview, had informed the accused and/or his solicitor that he suspected the accused of lighting the fire or had cautioned the accused, although not obliged to do either of these things, I am satisfied that it would not have been necessary on the grounds of fairness to have informed the accused or his solicitor of his changed role.
27 His Honour then referred to the respondent's evidence, which I have summarised above, about his understanding of the purpose and scope of the interview. His Honour found unfairness for the purpose of s90 of the Evidence Act in that evidence, together with Mr King's failure to disclose his suspicion of the respondent or to caution him, and to disclose that he was acting on behalf of the police, "choosing to conceal his dual role" to avoid the possibility of the respondent exercising his right to decline to be interviewed. His Honour concluded:
It is appropriate to note that while each of the identified circumstances when considered in isolation would not have warranted the exclusion of the admissions contained in the records of interview with Mr King pursuant to section 90, I am satisfied that the accused has established that their combined effect requires that consequence.
28 His Honour identified the relevant question for the purpose of s90 to be whether, in the circumstances in which the admissions were made, it would be unfair to the respondent to use the evidence against him, referring to the exposition of the applicable principles by Howie J in R v Em [2003] NSWCCA 374 at [104]:
…It is unfairness arising from the use of the admissions by the prosecution that is central to the discretion under the section and not whether the police unfairly treated the accused. The purpose of the discretion is the protection of the rights and privileges of the accused. It is concerned with the right of an accused to a fair trial and includes a consideration of whether any forensic advantage has been obtained unfairly by the Crown from the way the accused was treated... There may be an overlap between issues of voluntariness, reliability, fairness to the accused and the public policy discretion...
29 Before us, the Crown prosecutor challenged his Honour's finding that Mr King was acting on behalf of the police at the time of the interview. This faces the same difficulty as the challenges to his Honour's findings in respect of the statement to Det Thornton but, in any event, I do not find it necessary to decide the matter. The Crown prosecutor's alternative submission was that, accepting his Honour's finding about Mr King's role, it was not open to him to conclude that there was relevant unfairness. This submission I find persuasive.
30 For the respondent, Mr Byrne submitted that his Honour's conclusion was a matter of judgment, and that it had not been shown that he had taken into account any extraneous or irrelevant consideration or failed to consider any relevant matter. What had happened as a result of the arrangement between Det Thornton and Mr King, he argued, was that the interview of the respondent, who was a suspect, was delegated to an insurance investigator so as effectively to avoid the requirement of a conventional police interview accompanied by a caution. In those circumstances, he submitted, the respondent's right to silence had been impugned: cf. The Queen v Swaffield, Pavic v The Queen (1998) 192 CLR 159, in the joint judgment at [91].
31 His Honour was very critical of the arrangement between the detective and the investigator, as he found it to be. He pointed out that Mr King had an "arguably vested interest" on behalf of the insurance company in the outcome of the investigation, and he said that the arrangement could be seen as having deprived the respondent and the community of an independent police investigation of the fire. One can see the force of those observations. It may well be that what occurred was imprudent, if not improper. In fairness to Det Thornton, it should be said that he intended to conduct a formal interview with the respondent after further evidence had been gathered, but was transferred to other duties before he had an opportunity to do so. When other police later sought to interview the respondent, he declined to be interviewed on legal advice.
32 Conduct on the part of Mr King or Det Thornton, or both, which might be characterised as improper or unfair is relevant to the exercise of the discretion under s90, but is not determinative of it. As is clear from the passage in Em cited above and, indeed, from the terms of the section itself, the basal question is whether it would be unfair to the respondent to use the evidence at his trial. That also appears from the decision of this Court in a related appeal in which the principles expounded by Howie J came under consideration, decided after argument in the present case: EM v Regina [2006] NSWCCA 336, especially per Giles JA at [75]-[76]. With respect, although his Honour recognised that as the test, he does not appear to have applied it.
33 As the Crown prosecutor pointed out, there was nothing in the evidence to suggest that the respondent was led to believe that whatever he said in answer to Mr King's questions could not be used in evidence against him. If the interview had been conducted upon the basis which the respondent believed, and Mr King had not been acting on behalf of the police and had not seen him as a suspect, I can see no reason why evidence of it could not have been led. It would have been admissible, just as an unguarded incriminating statement to a relative or friend would have been.
34 Viewed in that way, there appears to me to be no basis for his Honour's conclusion that it would be unfair to the respondent to admit the evidence. I note that it was objected to also on the basis of ss84, 135, 137, 138 and 139 of the Evidence Act. His Honour found it unnecessary to consider those other bases, but expressed the view that each of them had insufficient merit and would not have succeeded.
35 Accordingly, evidence of the interview with Mr King was admissible. I would allow the appeal in part, and remit the matter to the District Court to be dealt with in accordance with these reasons.