R v Hill [2006] VSCA 41

1 I agree with Vincent, J.A., except in relation to ground 3(b).

2 In my respectful opinion, the learned trial judge misapprehended counsel's argument that the scenario evidence would involve forensic disadvantage to the applicant.[1] The forensic disadvantage to which counsel was referring was not the disadvantage of the confessional statements, which his Honour rightly held to be irrelevant, but the prejudicial character of the scenario evidence itself, which showed the applicant participating in a great deal of what he believed to be serious criminal activity, including attempted blackmail and a violent assault. That error does not, however, amount to a "wrong decision of any question of law" within the meaning of s.568(1) of the Crimes Act 1958, and the proviso to that sub-section need not be considered, because the decision to admit the evidence of the scenarios was correct. That evidence was necessary to show how the confessional statements came to be made. Applying the test in s.398A of the Crimes Act, in all the circumstances, it was just to admit it despite the prejudicial effect it might have.[2]

3 Further, in my view, the argument that the statements should have been excluded in the exercise of the judge's discretion is strong enough to warrant a grant of leave.[3] The police took statements from the applicant on 17th February and 14th March 2002. On 10th April 2002 Raymond Hill also made a statement, claiming that the applicant had confessed to him on 22nd February 2002. "Operation Exode" was initiated two months later. Counsel for the respondent conceded that, in the light of the applicant's statements, both of which were exculpatory, it was unlikely that an admission or confession would be made in any cautioned interview. In those circumstances, there is, to my mind, a serious question whether the confessional statements, made as a result of persistent questioning by undercover operatives at the conclusion of the scenarios, should have been excluded. On balance, I consider

that they should not have been excluded, but I think that this case came closer to the line than the other four.[4]

4 For these reasons and for the reason given by Vincent, J.A. at [100] below, I would grant leave to appeal against conviction but I would dismiss the appeal.

5 I agree with Vincent, J.A. save that, like Callaway, J.A., I am of the view that the trial judge misunderstood the basis upon which counsel contended that the admission of the scenario evidence was unfair to the applicant. Nevertheless the decision to admit the evidence was correct. I share the view of Callaway, J.A. that leave to appeal should be granted on the ground that it was arguable that the police circumvented the applicant's right to silence and accordingly the trial judge erred in refusing, in the exercise of his discretion, to exclude the evidence of the admissions made by the applicant. At the end of the day, however, I do not think the ground was established. The appeal should be dismissed.

6 This applicant was found guilty[5] by the jury empanelled in his trial of the murder (on 22 February 2002) of his step-brother, Craig Anthony Reynolds[6].

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

1. The learned trial judge erred in failing to find that an "inducement" or "inducements" of a nature prohibited by the common law had been held out to the applicant prior to the applicant making what the Crown asserted were confessional statements to:

(i) covert operative "P" on 6 August 2002; and

(ii) covert operative "M" on 6 August 2002 -

and that the "inducement" or "inducements" had not been removed prior to the applicant making the said confessional statements.

2. The learned trial judge erred in failing to find that both covert police operative "P" and covert police operative "M" were "persons in authority".

3. The learned trial judge erred in:

(a) not ruling as inadmissible the evidence of what the Crown asserted were confessional statements made by the applicant to:

(ii) covert operative "M": on 6 August 2002-

on the basis of involuntariness; or, in the alternative,

(b) not excluding in the exercise of his discretion the evidence of what the Crown asserted were confessional statements made by the applicant to:

(ii) covert operative "M": on 6 August 2002; and, as a consequence,

(c) not ruling as inadmissible:

(i) the evidence of that portion of the Record of Interview conducted with the applicant on 9 August 2002 concerning what the Crown asserted were confessional statements (as referred to in paras. (a) & (b) above); and

(ii) the evidence of the covert police operatives carrying out the various (19) "scenarios" with the applicant between 18 June 2002 and 6 August 2002 and the conversations with the applicant whilst carrying out these scenarios.

These grounds raise similar issues to those addressed in the application of Tofilau and involve consideration of the same principles of law.

The Background

8 At the time of his death, the deceased resided with the applicant and the applicant's girlfriend, Nicole Green, in a house at 4 Tonbridge Street, Carrum. All three were users of heroin.

9 In a past relationship with a young woman named Vanessa Wennholz, the deceased had fathered a son called Jayden. He had regular access to the little boy and often looked after him.

10 Lorraine Jackson, a friend of the deceased, stated that, about a month prior to 17 February 2002, the applicant moved in with the deceased at the Tonbridge Street house and that Green joined him a short time later. In the ensuing month, the applicant visited Jackson's home from time to time. He complained to her about being "ripped off" by the deceased in respect of purchases of heroin. He also expressed his suspicion that the deceased may have been responsible for the theft of his car[7]. On the few occasions that Jackson saw the deceased and the applicant together, she noted that there appeared to be tension between them.

Saturday 16 February 2002

11 It had been arranged that, on the night of Saturday 16 February 2002, the deceased would look after Jayden while Wennholz went out. He arrived at her home at about 6.00 p.m. for this purpose, but left for some time, indicating he intended to purchase heroin. He went alone and returned at about 8.00 p.m. with a quantity of this drug. He then took Jayden back to Tonbridge Street and Wennholz went with a girlfriend to a nightclub.

Sunday 17 February 2002

12 In the early hours of Sunday 17 February 2002, Benjamin McLoughlin, Kate McLaughlin and two other women, went to the Tonbridge Street house which was not far from Benjamin McLoughlin's home. Present there were the applicant, the deceased and Green.

13 These witnesses recalled that the deceased and the applicant argued about a petty household matter involving washing powder. They yelled and screamed and threatened to assault each other. Benjamin McLoughlin said that this confrontation occupied about ninety per cent of the hour and a half to two hours that he was present on that night.

14 At about 5.30 a.m., the applicant and Green attended at the Chelsea Police Station and spoke to Constable Mayne. The applicant mentioned the name of a police member to whom he wanted to speak, but as that person was not on duty Mayne enquired as to whether he could assist. The applicant responded "We have to move out, we've had it with my brother". Green added, "We've had enough of Craig. Shane has taken the rap for him for burgs." The applicant said, "He needs to be fixed up. I'd do it myself, but it is not worth doing time over". The applicant then produced a meat cleaver from beneath his jacket. He asked Mayne, "Look, can you get rid of this. I don't want that in the house as it might get used by me or my brother?" Mayne asked, "Well, what do you want me to do with it?" The applicant replied, "Throw it in the bin." Mayne took possession of the cleaver and secured it in the watch-house.

15 Wennholz arrived at the deceased's home at about 8.00 to 8.30 a.m. and was admitted by him. After assuring herself that Jayden was all right, they discussed the difficulties that he claimed he was having with the applicant and Nicole Green. Wennholz remained at the house during the day, sleeping for most of that time. She did not see either the applicant or Green. When Wennholz and Jayden left at around 3.00 to 3.30 p.m., the deceased was asleep on the couch in the lounge room. Wennholz had not seen the applicant consume any drugs and, to her observation, he was not drug affected.

16 Between 4.30 and 5.00 p.m., Samuel Bennett attended at 2 Tonbridge Street to pick up some motor car parts from a motor wreck. Bennett had previously resided at that address and he had the wreck there as the house was unoccupied. He did not see anyone enter 4 Tonbridge Street.

17 At about 9.00 p.m., a taxi driver, Michael Van der Linden attended at the Liberty Service Station on the Nepean Highway, Seaford, in response to a call to pick up someone named "Shane". The applicant and Green entered the vehicle. They had some shopping bags with them and directed Van der Linden to Tonbridge Street.

18 As they approached the house, the applicant said he would have to go inside and obtain the money for the fare from his brother. Green said she would go around the back to take the washing off the clothes line.

19 Van der Linden pulled into the driveway of the house. The applicant went inside while Green went down the driveway. After about fifteen seconds, Van der Linden saw the applicant run back out and heard him call, "Call an ambulance, call police".

20 Van der Linden immediately contacted his base and requested them to notify the police and ambulance services. He then saw Green run into the house and out again.

21 The ambulance service contacted Van der Linden on his mobile telephone, as they wanted to know what type of ambulance to send. He then entered the house to ascertain the nature of the problem. He saw the deceased lying on the floor and observed that he was completely naked with a bloody sheet over him. He also noticed that the deceased's eye was puffy and that he had a cut on the back of his head. He used his telephone to convey what he had found. Van der Linden noted the presence of blood on a couch, a chair and the television set and saw the applicant trying to clean blood off the deceased.

22 Ambulance officer, Patrick Joseph Kelly, arrived at the house at about 9.17 p.m. It was apparent to him that the deceased had sustained severe facial blunt end trauma, as he had a large haematoma over his left eye. Kelly noted a fine laceration to the neck of the deceased, running up to his ear lobes and he saw some plastic coated wire nearby. He formed the view that the deceased had sustained a life threatening closed head injury.

23 While they were at the house, the applicant called his father in Paynesville.

24 Frederick John Hill stated that his grand-daughter answered the call and she told him that it was "Uncle Shane" and that he was crying. Hill took the telephone and was told by the applicant that the deceased had been assaulted. Hill then handed the telephone to the deceased's mother, Kaye Giles, who heard the applicant shouting, "Craig has been assaulted, I don't think he's going to make it. I'm sorry, I'm sorry".

25 The deceased was conveyed to the Frankston Hospital and subsequently to the Alfred Hospital where he was examined by Dr Webster and X-ray photographs were taken. He was found to have suffered an extradural haematoma, a parietal contusion and a subdural haemorrhage on the mid-line of the skull. Dr Webster described the injury as a compound wound resulting from a fracture to the base of the skull. It had produced a life-threatening blood clot around the base of the brain and was consistent with the head having been struck by a blunt object. The deceased immediately underwent surgery.

The Applicant's First Statement - 17 February 2002

26 At about 11.45 p.m., Detective Senior Constable Pett took a statement from the applicant[8] the contents of which are summarised as follows:

There was an argument in the early hours of Sunday 17 February 2002 between Green and the deceased over some fabric softener. After the applicant managed to calm things down, he decided that Green and he should leave for a while. He had a meat cleaver in his own room, which he took with him and handed over at the Chelsea Police Station, asking the police to keep it. They then hitch-hiked to Springvale where they attempted to find someone from whom to buy drugs. They went by train from there to Dandenong at about 10.00 a.m. At Dandenong they engaged a taxi and travelled as far as they could on $20.00. They were dropped off at a roundabout in McLeod Road and walked back to 4 Tonbridge Street where they arrived at about 1.30 p.m. The deceased and Wennholz were on the couch watching television and Jayden was playing in the yard. The applicant and Green went into the bedroom and slept. The applicant rose and made coffee at about 3.30 to 4.00 p.m. At about 4.00 p.m. Green and he walked to the Carrum railway station and caught a train to Seaford. They then walked to the Seaford Safeway supermarket, and then commenced to walk back to Carrum. At the Liberty Service Station on the Nepean Highway, they caught a taxi and arrived home at about 9.00 p.m. They told the taxi driver that they would go into the house and get some money. The applicant intended to obtain the fare from the deceased who owed him $80. Upon entering the house he saw the deceased lying on his back in the middle of the carpet in the lounge room, naked and covered in blood. The applicant immediately removed his Adidas jacket and threw it on the couch. The deceased was lying on a brown blanket and attached to the blanket was a curtain wire which was wrapped around his neck. He knelt down next to the deceased and untangled the wire. There was blood "from one end of the lounge room to the other". It looked as if the deceased had been dragged around the room. The deceased was convulsing and he was putting his hand out as a sign to help him up. The applicant asked, "What the fuck happened Craig?" There was no response. The applicant ran out to the taxi and asked the driver to ring 000. He returned into the house and again knelt down beside the deceased. He tried to hold him still because he was trying to get up. He told the deceased not to move and that an ambulance was on the way. The deceased tried to say something. The applicant asked, "Who did it. What happened?" The deceased slurred as he said, "I heard a rumour". He kept repeating this sentence. The applicant obtained a grey blanket, wrapped the deceased in it and waited for the ambulance.

27 Later that night, Bennett, Green and the applicant went to Jackson's home. The applicant had blood on his clothes. He changed, had a shower and put on clothes borrowed from Jackson's partner. His own outer clothing, comprising a pair of jeans and a green windcheater, was left behind in a washing basket. That clothing was subsequently handed over to the police by Jackson.

28 The applicant's explanation to Jackson for the presence of blood on his clothing was that he had "been punching up some Chinese guy over at Springvale that morning".

Crime Scene Examination

29 The scene at Tonbridge Street was examined by Sergeant Martin on 18 February 2002, and by Senior Constable Lake on 23 February 2002.

30 On the footpath in front of the residence were a pair of elastic-sided work boots and a pair of sheepskin boots. There was blood on the soles of both pairs. Inside the house, there was blood staining in a number of areas, including the lounge room. The items found amongst the blood-stained debris included a house brick and a length of plastic-coated elastic curtain wire.

Subsequent Events

31 The deceased's natural brother, Brett Reynolds, who resided in Bairnsdale, had been contacted by telephone. He drove to Melbourne and saw the deceased in hospital.

32 On the following day, Reynolds went to Tonbridge Street. He asked the applicant whether he had any idea who might have been responsible. The applicant responded that he thought that the perpetrators were some drug dealers with whom the deceased had dealt. He thought that the deceased might have owed them money and he gave the witness an address in Noble Park.

33 Reynolds subsequently went to that address and, upon arriving, was surprised to find that the applicant was present. Reynolds asked why he was there, if he thought that these were the people who had hurt the deceased. The applicant said that he was trying to find out what had happened.

34 On the evening of 22 February 2002, the applicant and Green arrived at the home of Raymond Hill in Bairnsdale. According to Hill, the applicant was affected by drugs and babbling incoherently. He asked Hill to come outside because he wanted to talk to him. They walked out to the applicant's car from which the applicant obtained a bong and said, "Here's a trophy from a dead man." He then said, "I fucking done that cunt, Bro". Hill asked, "What do you mean you have done him?" He replied, "I fucking done him, you don't have to worry any more."

35 Raymond Hill's account of their conversation is summarised as follows:

The applicant had given the deceased $180 to purchase heroin. This was not usual, but Green was "hanging out". However, the deceased used the money for his own purposes. He was asleep on the couch in the lounge room while Green was "hanging out sick in the back bedroom". The applicant put on a pair of the deceased's shoes and walked into the lounge. As the deceased was lying on the couch, the applicant repeatedly struck him on the side of the head with a house brick. The deceased jumped up and "shouted like a dog." The applicant pounded him on the side of the head "about nine times for Raymond" and "another couple of times for their father," Frederick. However, the deceased would not die. The applicant grabbed the plastic cord from the top of the curtains and wrapped it around the deceased's neck. There was blood and grey matter spraying everywhere, but still the deceased would not die. The applicant demonstrated to Hill how he grabbed the deceased, wrapped the cord around his neck and pulled on it until the deceased was still, but he still did not die. The applicant said that he thought that he had finally killed the deceased but he was not sure.

Raymond Hill asked his brother, "Are you going to get caught with this, Shane. What about DNA?" The applicant said, "It's alright, I used a pair of Craig's boots to cover the marks." Raymond Hill asked, "What about the brick? You are going to get DNA all over your hands". The applicant said, "Well, I cradled his head - I worked out the perfect alibi - I cradled his head with his hand and a towel. I washed the brick ...". The applicant said that he went out, and later called a taxi which he used as an alibi. The applicant told Raymond Hill that he stripped the deceased naked, searched him for the 1.7 grams of heroin which he believed he had and dragged him around "like the dog that he was".

36 Raymond Hill received a call from their father advising that the deceased's life support system was to be turned off at a time which he recalled as either 8.05 or 8.02 p.m. At around that time, the applicant and Green recited a slow count down: and joyfully exclaimed ..."We are free! We are free! We've got away with it". They carried on in this fashion for about half an hour and had what Hill described as their own "sick little party".

37 Afterwards, Hill drove with the applicant and Green to his father's home at Paynesville. He told his father what the applicant had said to him. The applicant, who was behind him, muttered, "You fucking dog" and walked back to the car. Frederick Hill grabbed Raymond Hill and told him that he did not want to hear any more of his lies and ordered him off his property.

38 All three then went back to Bairnsdale where the applicant and Green stayed overnight before they returned to Melbourne on the next day.

39 Hill subsequently spoke to his father who told him not to say a word to anyone about what he had been told.

40 The deceased died at 11.00 p.m. on 22 February 2002.

Pathologist's Evidence

41 An autopsy was conducted on 23 February 2002 by Professor Cordner. The injuries noted by him included: a healing ligature mark across the front of the neck moving upwards on the left side to the neck and disappearing at the back of the neck; a laceration to the left ear; seven lacerations over the scalp on the left back and side of the head; a compound fracture to the right occipital bone of the skull which was removed in the course of surgery; a fracture on the floor of the skull extending from the left side of the head, across the floor of the skull towards the centre of the skull; and fracturing of the left cheek bone, the left upper jaw and the floor of the eye socket.

42 Professor Cordner formed the view that the fracturing to the floor of the skull required at least "moderately severe or severe force". The lacerations that he observed were, he considered, consistent with blunt impact and could have been caused by a house brick. There were signs of infectional meningitis, a well recognised complication of skull fractures. He identified three related causes of death, mainly purulent meningitis; multiple skull fractures; and traumatic brain damage.

43 Toxicological analysis of a sample of blood taken at the time of the deceased's admission to hospital disclosed that there were no drugs or alcohol present.

44 In re-examination, Professor Cordner was asked, with respect to the compound fracture to the skull, whether the person inflicting the blows would have been able to see into the skull or see the brain. He responded that it was possible.

The Applicant's Second Statement - 14 March 2002

45 A second statement[9] was taken from the applicant at Chelsea Police Station on 14 March 2002 by Detective Sergeant Kelly, the contents of which can be summarised as:

The applicant recounted his past life and relationship with the deceased. He said that the deceased "was always alright to me but there are a lot of people who could not get on with him". The deceased was a heavy drug user who dealt in stolen property. Apparently two weeks prior to his death, the deceased had obtained 1.8 grams of heroin from some drug dealers on credit with the intention of selling it so that he could pay a debt he owed to them. Prior to doing so, he discussed this proposal with the applicant who he asked to contribute $800 or $900 towards it. The applicant told him that he couldn't afford to do so. The deceased went ahead with the idea but instead of selling the heroin used it himself. To cover the increased debt, he obtained a further 1.8 grams from the same dealers with the intention of selling it. Again, he used it himself. He then went to Bairnsdale for about a week before returning to Melbourne. On his return, it appeared that he was not as worried about the drug debt as before. The deceased and Green seemed to get on well together. In the early hours of Sunday 17 February 2002, they were all at home when Ben McLoughlin and three young girls arrived. The deceased, McLoughlin and the girls were "partying on speed". At 5.00 a.m. Green decided to do some clothes washing and she used some fabric softener. The deceased told her not to use it as it belonged to Vanessa (Wennholz). The applicant subsequently attended the police station because he was reporting on bail at that time. While he was there, he took the opportunity to speak to a policeman and produced the meat cleaver. After hitching a lift to Springvale, they purchased some drugs with which they injected themselves then caught a train to Dandenong.

46 The remainder of the statement substantially repeated what he had earlier said.

Subsequent Investigations

47 In early April 2002, Raymond Hill who had made a statement to the police relating what he said he had been told by the applicant on 22 February 2002, was equipped by them with a recording device in an endeavour to obtain confirmation of his claims. He visited the applicant at a boarding house in Langhorne Street, Dandenong, and attempted unsuccessfully to talk to him. He went back on a second occasion and found that he was unable to pursue the matter as his father was also present.

Scenario Evidence

48 Against this background, the Informant approached the Police Undercover Unit for assistance. In consequence "Operation Exode" was initiated. It ran from 14 June 2002 to 6 August 2002 and involved a series of nineteen "scenarios" in which undercover operatives, posing as members of an organised criminal gang, interacted with the applicant. The object of the operation was to establish an environment in which the applicant would be prepared to disclose the extent, if any, of his involvement in the death of the deceased to the covert operatives.

49 The operatives who gave evidence under assumed names were "P" and "M".

50 The early scenarios involved approaches being made in which the operatives made themselves known to the applicant and a sense of friendship developed. He was induced to believe that they were members of a criminal group and was offered opportunities to participate in staged criminal activities in return for small cash payments, with the promise of greater rewards if he was accepted as a fully fledged gang member. The process included emphasis being placed upon a supposed code of truth, honesty and loyalty between all gang members and the necessity for full disclosure of any past crimes which the police might still be investigating. Ultimately a meeting took place between the applicant and "the boss" or "Mr Big", who spoke to and secured admissions from him concerning the death of the deceased.

51 These police activities commenced in June 2002, when the applicant and Green resided in a boarding house at Langhorne Street, Dandenong. "P" attended there on about 18 June and engaged the applicant in conversation. An acquaintance between the two men developed over the ensuing period and it was not long before "P" indicated that he was the member of a criminal gang and suggested that the applicant could possibly join them. The applicant was interested in participating and became involved in minor capacities in what, unbeknown to him, were staged criminal activities. He was paid small amounts of money ($100) for his endeavours and encouraged to believe that membership of the group could have great advantages for him.

52 The evidence relied upon by the Crown which emerged from these activities commenced with a conversation between the applicant and "P" on 26 June[10].

53 On that day, they had engaged in some staged criminal activities. In a subsequent conversation, "P" asked after the applicant's partner. The applicant said that she had gone for a walk by herself into Dandenong. He related that they had been run over by a car driven by his step-brother's "ex" and that his partner (Green) had been frightened about going out ever since. He said that they would be able to make a TAC claim for at least $20,000, sue the "ex" Wennholz personally through her insurance company and that they could possibly secure enough money to buy a house. However, to that time his partner, who was even too frightened to cross the road, had failed to do anything about pursuing the matter.

54 On 2 July 2002, "P" and the applicant engaged in another staged criminal activity. In the course of subsequent conversation, the applicant complained that the police had searched the room occupied by Green and himself, for stolen jewellery, claiming that they were regarded as suspects for a burglary. He believed that the police had used that opportunity to plant a listening device. He stated that Green and he searched thoroughly afterwards, but did not find anything.

55 The next tendered scenario conversation was on 5 July 2002. This took place while "P" and the applicant were driving along the Princes Highway. As they passed the Springvale Cemetery, the applicant made a gesture with a finger. "P" said, "Yeah, we don't want to go in there yet buddy. Why did you give it the bird then?" The applicant replied, "I know someone in there". After talking about football, the applicant said that he had had to move out of the boarding house or he would end up in a "fucking psych ward". He said that the police had been there every second day in the preceding week. He believed that this was due to the criminal activities of two residents, one of whom was called 'Simon'. He said that they were committing burglaries and bringing their stolen property back to the house. He said that he told 'Simon' that he had to "smarten up" because "anyone who gets me locked up besides a judge or a copper is gonna fucking hurt real bad".

56 In another conversation, on 10 July 2002, "P" and the applicant discussed the difficulties of moving house because Green and he could not afford to pay a bond until they had retrieved what they paid to their previous landlord. "P" assured the applicant that "You'll have a win." The applicant said that he should stop helping people and should step over them and keep going. "P" said, "Shane, you look after your own". The applicant replied, "Yeah, well that's what I'm starting to do now."

57 At about 3.26 p.m. on 22 July 2002, "P" telephoned the applicant and arranged to pick him up in Pultney Street, Dandenong, at the rear of the Langhorne Street house. He was picked up at about 5.07 p.m. The applicant said, "... I still have to have, bloody, you know, have eyes in the back of my head with what's happening with my step-brother". "P" said that he didn't care and that this problem could be sorted out. He explained that, if the applicant ever needed assistance, it could be provided.

58 On Friday 2 August 2002, "P" telephoned the applicant and arranged to meet him in Pultney Street. The meeting took place at about 10.37 a.m. They discussed the fact that a police check of the applicant, which had to be conducted before he was accepted into the gang, had indicated that they had a particular interest in him. "P" said that, if there was a problem, it had to be resolved. The applicant suggested "It could even be the shit with my fucking step-brother too". "P" replied, "Well I hope that's fucking sorted mate." The applicant said, "Yeah, well, I, I've got no other way to sort that. I don't know".

59 On Tuesday 6 August 2002, arrangements were made for the applicant to meet "P" and then travel to the City to meet other gang members at the Crown Casino. While driving into town, "P" said that this was a "big day" for the applicant as "the boss" was in Melbourne and he wanted to talk to him. He emphasised how important it was that the applicant be honest and forthcoming in this conversation. Upon arrival at the Crown Casino, they met up with operatives "D", "L" and "J". Then "P" and the applicant met "the boss", "M", and "A" in a room of the Crown Towers Hotel.

60 After "P" and "A" had left the room, "M" explained to the applicant that he was being checked for anything that would "bring the heat on me". He indicated that "P" had spoken highly of him and said that there was very good money to be made if the applicant was accepted into the group. He expressed concern, however, that there appeared to be something relating to the applicant that needed to be addressed, observing that, when he arranged to have a check made of the applicant's background, he found it necessary to pay more money than usual and that the process was taking longer than normal. He said that he needed to be fully informed about the situation.

61 The applicant told him that a problem had arisen in February when he was living with his step-brother in Carrum. He said that his step-brother used to "rip him off". There was, he said, no physical evidence to connect him with his death and that the only evidence that the police had against him was the fact that he was the last person to see the deceased alive and the one who found him after he had been attacked, "cause we went out and come back". The applicant said that there was no DNA evidence and no fingerprint or other physical evidence to tie him into the death. He said, "He didn't see me do it" and that it took a week for the deceased to die. "M" enquired as to the applicant's reason for attacking his step-brother. He responded that he had been "ripped off" for $180.00 and that "I just lost it and I went in like he put the hard word on me girl and that. And I was using at the time too". He said that he "pretty much hit [the deceased] on the head with a brick, house brick" that was already in the lounge room. He said that his step-brother was asleep on the couch when he went to him and hit him with it a few times. He said that, after the attacks, he scrubbed it and wiped the brick with a towel. He then dropped it into the pool of blood that had formed where the deceased lay. There was no problem relating to the presence of his fingerprints in the room as they were already throughout the house nor with respect to the crime scene as it had been contaminated prior to the police conducting their examination. The applicant said that he cleaned up and took off his clothes (a pair of shorts and a shirt) which he then put into a bag and threw down a drain at the edge of the road. He said that there was no blood on his clothes as far as he was aware, but he had changed, just in case. After these events, Green and he went to the Seaford Safeway Supermarket to see if their unemployment benefits had been paid into their bank accounts. They proceeded to walk home, but then called for a taxi. When they alighted from the taxi, he told the driver that he would go in and get some money from his brother. However, when he entered the house, he found that his step-brother was not situated as he had left him. He had been stripped naked with a wire stretched around his neck and he appeared to have been dragged around the room. The applicant said that this must have happened after he had left the house. He added that the deceased had many enemies and that "he used to rip off Romanians".

62 "M" asked if there was anything else that he should know. The applicant said, "And you know, I'm putting my bloody, my life in your hands too by telling you these things. Nic [Green] did say to me 'Don't say anything, this could be a set up,'" but he said that he trusted "P". "M" asked whether he could be sure that the applicant had told him everything. He also asked if he was sure that Green would not be a problem. The applicant repeated that when he found the deceased, he gurgled words to the effect that he had heard a rumour. The applicant said that Samuel Bennett and Nicole Middling might have entered the house in the period that Green and he were absent and might have stripped him, so that they could search his body for drugs. "M" said that, as long as he knew the truth, he could do something about the situation. The applicant was wanted in the gang as they needed to replace someone and individuals with the qualities which he possessed were very hard to find. The applicant said that he was ninety per cent sure that he had left the wire around the deceased's neck and that he removed it when he returned. "M" asked, "Do you remember putting it on?" The applicant replied, "Yeah, yeah, cause I wrapped it around ...but when I took it off, I told them, yeah, I told the coppers there was a wire wrapped around his neck and I took it off." He also said that the police complained that his touching of the curtain wire had rendered it useless as evidence. The applicant said that he had not stripped the deceased. He had not initially said that he wrapped a wire around the deceased's neck because he didn't want to talk about that. He re-iterated his allegation that others had come in and stripped the deceased so that they could search for drugs concealed in his anatomy.

63 "M" used his mobile telephone to call "A". He asked him to send "P" to his room. When "P" arrived "M" said that he needed to do a couple of things and that he might have to speak to the applicant again. "M" suggested that "P" take him downstairs for coffee. "P" and the applicant then left the room.

64 A little later, after receiving a telephone call from "M", "P" indicated to the applicant that "M" was not happy and that he thought that the applicant had not been completely honest with him. "P" complained that "M" had had "a go" at him for vouching for him. The applicant asked if it was possible for him to speak further to "M" to find out what was troubling him. "P" said that it was "today or never", if the applicant wanted to become a member of the gang.

65 "P" then made a further telephone call to tell "M" that the applicant would be going back to the hotel room. "P" exhorted the applicant to be completely honest.

66 After "P" left the room, "M" suggested to the applicant that he was covering up for his girlfriend and that it did not make any sense for a third party to come in and strip the body. He repeated that not only did he have to be sure that the applicant was reliable, but that his girlfriend would be as well. The applicant said that, even if Green "rolled on me", she was not an eye witness. "M" pointed out that it would be her word against the applicant's in any event. "M" explained that if someone else had come in and stripped the body, it meant that there was another person around at the time who was not accounted for and this could conceivably cause a problem. The applicant said that he could not take the matter further, but suggested that Nicole Middling may have entered the house while Green and he were absent.

67 "P" was summoned back to the room. "M" indicated that there were still a "couple of things", but that everything should be alright. He suggested that the applicant and "P" have a beer and that the applicant then be taken home. "M" said to the applicant, "Let's hope I see you around as part of the team".

68 "P" then left the applicant in the company of other operatives in the gaming room and returned at about 6.30 p.m. "P" and the applicant left the Casino and drove towards Dandenong.

69 On the journey "P" indicated that "the boss" was happy and asked the applicant what the discussions were about. The applicant replied, "Yeah, I'm quite happy to tell you, if you want to listen?" As before, he said that he hit the deceased on the head with a brick several times and that he cleaned up the scene in order to remove any DNA or other incriminating evidence. He said that he returned three hours later to find the deceased stripped naked and covered in blood. This meant, according to the applicant, that some other person had entered the house in the meantime. He explained how he used the brick and scrubbed it afterwards to remove fingerprints and his own blood because he had cut his hand on it. He stated that he put the brick back into the deceased's pooled blood, that he cleaned up and threw his clothes down the drain. He said that when Green and he returned, Nicole Middling walked in behind them. He said that she may have come in earlier and stripped the deceased so that she could search for any drugs that he might have concealed within his anatomy. The applicant confirmed that, when he made a gesture whilst passing the Springvale Cemetery and remarked that he knew someone in there, he was referring to the deceased. He also said that because the crime scene had been contaminated, any blood on his own clothing would be easily explained by the fact that he had knelt down and attended to the deceased. He had wrapped some curtain wire around the neck of his step-brother which may have had his (the applicant's) DNA on it. He protected himself against this possibility by removing the wire when he found the deceased on his return. He had wrapped it around the deceased's neck for more leverage and said, "Well, he would not, he wouldn't stop breathing." He grabbed the wire and held it for "what felt like ages" but it was probably about thirty seconds. The wire cut into the deceased's throat. The applicant said he just held it there and finally thought that his step-brother must be dead. However, when he released it, he found that he was still alive. "P" asked the applicant, "But you haven't said this just to fuckin join us have you?" The applicant's response was "Oh. Fuckin, Fuck. No mate". Shortly after "P" asked "Did you feel pressure from us to, to tell you (inaudible) .... Did you have to tell it, did you think you had to do it or did you just, or did you want to do it?" The applicant responded with "Well I fuckin pretty much wanted to." Shortly after this conversation, the applicant was dropped off at his boarding house.

70 On 9 August 2002, he was arrested and interviewed by Detective Acting Senior Sergeant Mark Bagally[11]. In that interview, the applicant recounted his relationship with the deceased and their mutual usage of heroin. He said that the deceased had supplied him with heroin and, on a number of occasions, sometimes had "ripped him off". He had also made advances towards Green. The applicant gave an account of the events of Sunday 17 February 2002 which accorded with his previous police statements. He added that when he rose at about 3.00 p.m., he noticed that Wennholz and Jayden had left. He made cups of coffee for the deceased and himself and they discussed the $180 which he owed the applicant. The applicant said that the deceased had two or three caps of heroin on the coffee table and he asked him for some. The deceased said, "No, that's mine. I'm going to score for you". They then had an argument in which the applicant lost his temper. He said that he could not remember anything that occurred, but when he "snapped out of it" he saw the deceased on the floor with blood all over his head and on the floor. He saw a house brick lying next to the deceased. He picked it up and scrubbed it to remove fingerprints before replacing it in the blood. However he had no recollection of assaulting the deceased with it. He then went into the bedroom where he told Green what had happened and they left the house. When they returned, he found the deceased naked on the floor with the wire wrapped around his neck and blood all over the lounge room.

71 The interviewing police officers then played to the applicant the video-tape recording of his conversation with "M" in the Crown Towers Hotel room. The applicant said that he accepted that he must have hit the deceased with the brick, even if he could not recall it happening. He said that he provided "M" with fabricated details of the incident because he believed that that was what "M" wanted to hear. The applicant said, "I just had to make up a story to - you know, to make it believable. Make up a story to, you know get in and get me ...$8,000 sitting in that bloody safety deposit box,[12] which I thought was mine. And if I told them all that, that money was mine." He said that his clothing had been thrown into a charity bin in Carrum. He explained that he told "M" that the bag of clothing was thrown down a drain because he did not want them to think that the garments could possibly be found.

72 The applicant agreed that when he went to Jackson's house after making an initial statement at Chelsea Police Station, he changed out of his jeans because there was blood on them. He borrowed another pair from a man living at Jackson's home. Late in the interview, the applicant was asked how many times he thought that he had hit the deceased on the head with a brick. He responded "Probably thirty times or something, twenty or thirty times maybe." The applicant said that he had "kind have figured out that it was a lot of times, and I remember kind of little bits and pieces of it, and I remember you know, just hitting with a brick."[13] The applicant said that the curtain cord around the deceased's neck would have come from a box of items for his van, including curtains, that was located in the lounge room. The applicant denied tying the cord around the deceased's neck and applying force. The applicant said that he caught a taxi back to Tonbridge Street so that the taxi driver would be an independent witness to his "finding" of the deceased.

The Case for the Crown

73 The case for the Crown was that the deceased's death had been occasioned by the conscious voluntary and deliberate actions of the applicant. It was submitted to the jury that he acted with murderous intent and that they should be satisfied beyond reasonable doubt that his attack on his step-brother represented an unprovoked eruption of violence that contained elements of revenge for what had transpired between the two in the past. The Crown further submitted that when the gravity of the applicant's conduct and the background against which it occurred was taken into account the defence of provocation could be safely rejected.

74 Various witnesses, the Crown submitted, gave evidence of an increase in the tension between the applicant and the deceased in the two weeks preceding the attack. Feelings were sufficiently high, it was argued, that the applicant went to the Chelsea Police Station where he surrendered a meat cleaver, in case he did something "silly" with it. The applicant then went out looking for drugs, but when he was unable to "score" he returned home frustrated.

75 The Crown submitted that, after the deceased was attacked and the applicant left the house, he set about putting a simple charade in place. In support of this contention, the Crown referred to the applicant's conduct in travelling home by taxi and telling the driver that he needed to go inside to collect the fare from his brother. Then, the Crown submitted, there was the "shocked, surprised finding" and the mock effort by the applicant to wipe the deceased's face with a sheet and unwrap the wire from around his neck.

76 In relation to the applicant's post offence conduct, the Crown submitted that after he had "pulverised" the deceased with the brick, he washed it in order to remove any of his DNA that might have been transferred to it. He then changed and discarded his clothes and left the house for some three hours. In statements made by him to the police on 18 February 2002 and 14 March 2002, he denied having anything whatever to do with the deceased's death. This evidence, the Crown argued, when considered in conjunction with the other evidence in the trial, destroyed the credibility of his utterances suggesting that he may have been out of control and acted without murderous intent.

77 With regard to the autopsy examination, the Crown pointed out that the deceased's injuries were concentrated in the area of the skull. Although the number struck was difficult to determine, a minimum of at least seven blows was required to cause the injuries. The description given by the applicant was consistent with the injuries sustained by the deceased and significant in that it demonstrated the clarity of his recollection of what had occurred. This, it was contended, was also inconsistent with that of a person who was out of control at the time that he acted.

78 Turning to the undercover police operation, counsel submitted that it was "P's" role to contact and establish a rapport with the applicant so that an atmosphere was created in which the applicant would feel comfortable and prepared to talk freely. This objective, the Crown submitted, lay at the heart of the police activities. The applicant was offered what to him was a better life on becoming a member of the gang; a considerable improvement from his situation of being unemployed, unskilled and with little money or assets. Membership of the gang was accordingly important to him and it had been stressed that he had to be truthful. The approach adopted by the operatives, the Crown submitted, was directed to securing a reliable confession from the applicant. He was enthusiastic about embracing this future and knew that, in order to become one of their members he had to be honest with "the boss" and ensure as far as possible that the gang would not become subject to any adverse police attention. He was afforded every opportunity to walk away if he so desired, but he was an eager recruit, who saw himself as benefiting greatly from being "one of the boys".

79 In the applicant's first meeting with "M", he talked about putting on a good show for the police and how he thought they had believed him. He described how the deceased had been dragged around the room, consistent with the evidence of Raymond Hill. The applicant also spoke of his surprise when he realised that the deceased was still alive and how he hit him again to finish him. During this meeting, the applicant spoke of his history with the deceased and how he had caused him "grief". His step-brother, he claimed, had misappropriated $180 and had propositioned his girlfriend. When he thought the deceased was still alive, he struck him again. Then when he heard the deceased cough and splutter, he put the wire around his neck to finish him. He thought that he had killed his step-brother at that stage and left the premises only to return a while later, in a taxi, to find that he was still alive.

80 After the meeting with "M", the applicant was concerned that "M" was not satisfied with the version of events and so he requested "P" to secure an opportunity for him to speak further to him. Before that conversation, it was again stressed by "P" that he had to be honest. During the second meeting, the applicant insisted that he was not holding anything back. He denied that he had stripped the deceased's body, although it needed to be borne in mind, the prosecutor submitted, that he told Raymond Hill that he had. His motivation for not disclosing this to "the boss" may have been that he was loath to tell him that he was so addicted to drugs that he was prepared to strip the body of someone he had killed to search his clothing and orifices for them.

81 With respect to his statement, when interviewed, that he had no recollection of assaulting the deceased with a brick, the Crown argued that this was "nonsense" as he was able to recall significant detail concerning the assault and, in particular, the use of the wire. Further statements by him that he was "freaked out" and confused could also be dismissed, as he was able to change and discard his clothes, clean the brick and organise a taxi.

82 The Crown submitted that, when the applicant inflicted the fatal wounds, he had not lost self-control and, in any event, the conduct of the deceased would not have caused an ordinary person to form an intent to kill or cause really serious injury. In support of this contention, the prosecutor pointed out that it seemed apparent that the deceased was "out like a light" on the couch at the time that he was attacked and the situation was not one in which there was any loss of self-control.

Course Adopted by Defence at Trial

83 The applicant did not give evidence on the voir dire or trial, nor did his counsel adduce any other evidence.

The Case for the Defence

84 It was submitted by counsel appearing for the applicant that his client was guilty of manslaughter and not murder as it had not been established beyond reasonable doubt that the applicant possessed the murderous intent at the time that he acted: or, alternatively, the prosecution had not excluded the reasonable possibility that he may have been provoked to act as he did, by the acts and words of the deceased. However, the real issues, defence counsel contended, related to the applicant's intention at the time of the fatal assault.

85 In relation to the physical evidence, including the crime scene examination, the DNA evidence, the brick and the autopsy report, counsel submitted that when all of this evidence was considered, it pointed not to murder but rather to manslaughter.

86 The extensive amounts of blood over the furniture and the carpet were primarily contact smears and were, in the opinion of the crime scene examiner, the result of the deceased leaking blood onto those surfaces. An examination of the walls revealed a single blood spot. Specifically, counsel argued the examiner did not find blood or grey matter deposited on the walls, consistent with Raymond Hill's evidence of the applicant's confession to him.

87 He pointed out that Professor Cordner found that there was no significant loss of brain tissue. This was inconsistent with the applicant's description of blood and grey matter "flying everywhere". Although it was conceded by Professor Cordner, during re-examination, that it may have been possible to see the brain though one of the fractures, counsel submitted that this could not advance the cases of either the Crown or the defence in the trial, adverting to Professor Cordner's evidence that the damage to the brain was not the result of pieces missing but rather the intervention of bacteria.

88 Concerning the significance of the ligature marks around the neck of the deceased, Professor Cordner, counsel submitted, was unable to conclude that compression by the wire contributed to the deceased's death.

89 With respect to the applicant's statements to "P" and Raymond Hill of hitting the deceased 30 times and a dozen times, respectively, counsel submitted that they were not supported by the autopsy findings and it was apparent that the applicant was at least exaggerating, if not lying, to each of those witnesses about the severity of the assault. Overall, counsel submitted, the autopsy evidence did not support the number of blows mentioned by the applicant and, although the force to the head was described as being moderately severe to severe, it was not such as to create the scene described by the applicant to "P" or Raymond Hill.

90 The evidence given by a number of witnesses concerning the volatile relationship of the applicant and the deceased, counsel submitted, did not demonstrate developing hostility of a kind likely to lead to murder, as urged by the Crown, but rather suggested nothing more than the existence of a growing tension between the two men. In support of this contention, he drew attention to the attendance by the applicant at the Chelsea Police Station to surrender a meat cleaver. This incident, it was argued, pointed powerfully to the likelihood of the applicant "snapping" later that day and losing control and demonstrated that killing his step-brother was the last thing on his mind at that time.

91 Counsel contended that the jury should reject the Crown argument that the behaviour of the applicant subsequent to the assault upon his step-brother destroyed his credibility. It was conceded that the applicant endeavoured to avoid responsibility for what had taken place, and took steps to distance himself from it. This, it was said, was understandable in the circumstances and provided no assistance in the determination of the question of his guilt of murder. His subsequent behaviour, in making incriminatory statements, when viewed in the context of being tricked by "P" and "M", was an entirely different proposition and his motivations for making the statements related to the inducements held out to him, and again, could provide no foundation for an adverse inference.

92 With respect to the confessional evidence, counsel submitted that the Crown relied on three sources: Raymond Hill; the evidence of "P" and "M"; and what was said to Detective Acting Senior Sergeant Bagally in his interview.

93 Counsel submitted that there were a number of difficulties associated with the evidence of Raymond Hill. They included the fact that Hill had amassed 187 prior convictions and had to be regarded as an inherently untrustworthy witness; and that the conversation between the applicant and Hill had not been recorded and some of his assertions were not only improbable, but, it was asserted, patently unreliable. Although it was conceded by counsel that the applicant was "pretty sure" he had told Hill something, Hill was provided with "a kernel of information" that he varied and exaggerated. There were a number of inconsistent answers given by him in relation to his own drug use in the past and on the day of the "so-called confession". His evidence of a reference by the applicant to a "bong" in his possession as "the trophy of a dead man", had to be assessed against his demeanour during cross-examination which, it was suggested, was that of an untruthful and unreliable witness. The so-called count down, at the time that the deceased's life support was withdrawn, counsel suggested, was nothing but an embellishment. With regard to the applicant's strip search of the deceased for heroin, he submitted that it was significant that Hill claimed that the applicant made that statement to him, but told everybody else that he had snapped after seeing the deceased taking heroin. Counsel argued that it was unlikely that the applicant would have searched the deceased for heroin when he had just witnessed him using it.

94 Turning to the applicant's confessions to "M", "the boss" of the criminal gang, he submitted that any evidence secured from the operation had to be assessed against the background that such activities on the part of the police involved the promise of benefits of such importance to the applicant that real doubt was cast upon the reliability of the procured statements. There was the prospect of false glittering prizes, on the one hand, and protection against the police homicide investigation on the other. Counsel submitted that, when presented with the opportunity, the applicant reacted in a human and understandable, if not honourable, manner. Although his reaction to the situation would almost certainly not be one that members of the jury would view favourably, it should be considered against the background that he was living in impoverished conditions when he was suddenly offered the chance of a much more affluent existence and a solution to his ongoing problem with the police. It was conceded that the applicant was perhaps seeking to avoid responsibility for being implicated in the death of his step-brother. However, it did not follow that he was guilty of murder, and statements made with the prospect of gang membership could not reasonably offer any assistance when addressing the applicant's state of mind at the time that he assaulted the deceased.

95 Counsel also submitted as important that, although the necessity to be truthful was constantly reinforced by "P", the conversations took place in the context of what counsel likened to a job interview with an "Aladdin's cave of riches on offer". The applicant needed to reassure "M" that he was reliable as the $8,000 depended on it. He was, counsel argued, prepared to tell them what they wanted to hear in order to secure these tantalizing rewards.

96 With respect to the applicant's confession to "P", counsel submitted he confirmed much of what he told "M" and made it patently clear that he was very keen to join the criminal gang. Finally, with respect to his change of version about the use of the curtain wire, counsel suggested that, as he was under pressure, he modified his story in order to become a member of the gang.

97 Counsel submitted that the applicant's statements in his interview with the police after his arrest with respect to his relationship with his step-brother, were candid. When the severity of the assault was assessed in conjunction with the build-up of tension, it was apparent that the applicant did lose control and acted spontaneously. The weapon, it was pointed out, was just picked up in the room. Professor Cordner's evidence referred to a minimum of five to seven blows, which, it was emphasised, was far removed from the 30 given by the applicant. When viewed against the background of the increasing tension in the household, it was apparent that the defence of provocation had not been excluded. Counsel pointed to the deceased's approaches to the applicant's girlfriend for sexual favours, the $180 "rip-off", the deceased's refusal to share his heroin, his taunting of the applicant by referring to him as a junkie, and the applicant observing the deceased nodding off on the couch from the effects of the drugs. The reasonable possibility that these acts in combination caused the applicant to lose control could not, he argued, be excluded. They were certainly sufficiently grave enough to provoke an ordinary person in the situation in which the applicant found himself into acting as the applicant did.

The Grounds of the Application

98 It is to be observed that the grounds of application upon which reliance has been placed in this case are expressed in different terms but are, for practical purposes, virtually identical to those considered in the matter of Tofilau[14].

99 As in that case, the impugned evidence was the subject of objection at the trial as to its admissibility and its possible exclusion in the exercise of discretion, and essentially the same arguments were advanced and considered.

Grounds 1 and 2

100 The trial judge found that, unlike the applicant Tofilau, this applicant was not particularly concerned to receive the assistance of the gang "boss" in relation to the investigation itself, but was induced to make the self incriminatory statements by the prospect of the financial rewards to be derived through membership of a group that could only be obtained if they accepted that it was safe to admit him. In his ruling, he referred to this as "the only inducement". His Honour considered that this kind of anticipated benefit could not constitute an inducement in the relevant sense. Although he did not clearly indicate the basis for this view, presumably he was of the opinion that, in order to attract the operation of the rule, the inducement must itself relate in some fashion to the investigation or process contemplated or underway. The Crown, in this Court, has not sought to support this position and, although no argument has been presented with respect to it, I would add that I am confident that it is not correct. If, as I have indicated in Tofilau[15], the law is concerned with the use of authority to secure admissions and the potential unreliability of statements made in consequence, the nature of the inducement or whether it related to the investigation or process itself would hardly seem to be significant. For example, a threat or offer of advantage could be directed to some other person or to some other quite independent matter, but nevertheless operate powerfully upon the mind of the individual to whom it is suggested. I see no reason in principle why, in that situation, the potential detriment or benefit would not be regarded as a relevant inducement for the purpose of the rule and I am not aware of any authority that indicates otherwise.

101 A further question was said to arise concerning his Honour's finding that the claimed ability of "the boss" to derail or terminate the investigation assumed no significance as a factor in the applicant's decision to make the statements. This question can be addressed quite briefly.

102 In his conversation with "M" the applicant indicated eagerness to reap the anticipated financial rewards from acceptance into the gang. He expressed confidence that the police had no evidence linking him with the death of the deceased. There was, as the trial judge concluded, little, if anything, in the evidence that indicated that he regarded the possible protection that "the boss" could provide against the police investigation as important. I am unpersuaded that his Honour's finding, that the prospect of financial rewards constituted "the only inducements" operating on the mind of the applicant, was not open in the circumstances.

103 In any event, there has been no dispute concerning the proffering of inducements nor has it been suggested that they had been withdrawn or could be seen to have been irrelevant to his decision to speak. The real issues, with respect to them in the present application, have related to whether the operatives to whom the statements were made could have been properly regarded by the trial judge as persons in authority for the purpose of the exclusionary rule.

104 The answer to that question, and for the reasons discussed in Tofilau is - no.

105 His Honour directed his mind to the relevant considerations, principles and factual circumstances, summarizing his views in the following passage:

"[I]n order for such an inducement to taint a confession it must have been made by someone who is a 'person in authority' as that term is used in the cases. In the circumstances of these conversations the accused's belief could only have been as to the power of the undercover police officers and, in particular, the 'boss', not in respect of their authority. He believed that they were able to fix things. Power is distinct from authority. I am satisfied that even if the accused thought that the 'boss' could give him a better life, money and 'make this go away', he did not have the subjective belief referred to in the authorities relied upon by [Counsel]. See in particular R v. Dixon and the cases therein referred to; R v. Thompson ... and R v. Wilson ... and, in particular, the discussion by Osborn J in R v. Tofilau ... where His Honour at para. 30 referred to the Privy Council decision in Deokinanan v. R ... and the Canadian case of R v. Todd ... ."[16]

Ground 3(a)

106 Before us, the argument was advanced that, in any event, the statements of the applicant were inadmissible on the basis that they were involuntary in a basal sense. The prosecution, it was claimed, had not only failed to establish on the balance of probabilities that the will of the applicant had not been overborne by a combination of promises combined with tactics of bullying, haranguing and cajoling, but it was apparent that that was what had occurred. This contention was not advanced in the court below where counsel then appearing for the applicant put the defence position as follows:

"COUNSEL: [T]here is not really a great deal of profit to be derived from embarking on a great exposition as to what the law is and asking your Honour, in effect, to reinvent the wheel. A ruling such as was produced in Tofilau in this case would simply be to reproduce a lot of work that has already been done[17]. What I ask your Honour to do is to consider that this case is different from those that have been considered by your brother judges in this Court and to distinguish the facts in this case from the principles that were applied in those other cases.

In this respect, I ask your Honour to consider that the tenets of this submission are that although there is an attack on the voluntariness of the confessions and the alternate exercise of discretion is sought if voluntariness fails, that the three main points of focus are, on the one hand, the confessions could be said to result from the offering of inducements by a person in authority. So they are the two key areas that I intend to dwell on there. Then the third is the public policy.

Inducements were considered by his Honour, Dixon, J. in R. v. McDermott which is set out in paragraph 5. The words that I ask your Honour to concentrate on there are that, 'A confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority. An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority.'

In this case, your Honour, the inducement that is relied upon is a series of hopes or promises. So far as there may be fear or prejudice that is offered or held out to Mr Hill, I say that it tends to be used more in a pincer movement that underscores the fact that the inducements, that is the hope of advantage, is held out by a person in authority.

So two things follow from that. The first is that it is not suggested in this case, nor is it relied upon, that Mr Hill's will was overborne in the classic sense of the early cases where people were detained and there were threats.

HIS HONOUR: Ahmad and the Queen[18] and that sort of case.

COUNSEL: Ahmad and the Queen, held out windows, things of that nature. That is not the suggestion here. As Mr [M] said in his evidence before this court today, he made it clear on a couple of occasions to Mr Hill that Mr Hill was free to leave the room. In fact, he very deftly at the commencement before any confessions were made said, 'You are free to leave'. Of course there was a huge purported downside if he did leave. That is, he wouldn't get membership of the gang. But it is not suggested that there were locked doors or threats of beatings. On the one hand, the advantage of joining the criminal gang was a great one; on the other, if he was abandoned by the gang, then he would be left to his own devices and would have to fight off the Homicide Squad who had been pursuing him over the months."[19]

107 When addressing the possible exclusion of the evidence in the exercise of discretion, counsel made further reference to this aspect, but again made it clear that he did not contend that the will of his client may have been overborne.

"COUNSEL: But the consideration here is that whereas in this case the person is the only or the principal suspect and is not charged because of a lack of evidence, the use of undercover operatives amounts to an intentional course to overcome the restrictions and protections of the legislative procedures in order to engage in a process that denies the right to silence and to cautions, uses trickery and deceit to elicit admissions, as I have demonstrated with [M]. There is fear, but fear used in the person in authority context, that is, to create a hierarchy, not an overbearing of will; inducement; exposure to purported violence that the gang is capable of; a purported dishonesty; and the prospect of an Aladdin's cave and a range of other impermissible tactics are used to obtain answers."[20]

108 Although in these passages counsel was clearly placing emphasis on the nature and impact of the inducements held out to his client, his Honour properly considered that attention had to be given to the question whether the evidence had to be excluded on the basis that the test of basal voluntariness had not been satisfied.

109 In his Ruling he stated:

"Counsel analysed the relationship between the undercover police and Hill in three general categories. He said that the evidence showed that in the scenarios acted out by one of the police called [P], his role and position was overwhelmingly dominant and commanded fear and respect. He referred to various parts of the scenarios to which I have already generally referred. He said that that police officer and his co-worker, [M], gave an air of authority and invincibility to themselves and to the gang. He referred again to various parts of the scenarios. Finally, he said that in the final interview in which the majority of the confessional statements are said to have been made by Hill, [P's] demeanour was aggressive and involved bullying, cajoling and haranguing.

So far as the state of mind of the accused at the time he made the confessional statements is concerned, the only evidence, it seems to me, comes from a passage in his record of interview commencing at question 302 with the question: 'Hit him with a house brick?' Answer: 'Yeah, I know I hit him with a house brick, but I don't remember doin' - like, actually beltin', hittin' him with it. Like, what I was describing there I don't even know if that's how it happened. I was just telling 'em that because that's what they pretty much wanted to hear.' Question: 'Right?' Answer: 'Well, at least that's what I thought, anyway.' Question: 'Okay?' Answer: I just had to make up a story to, you know, make it believable, make up a story to, you know, get in and get me $8,000 sittin' in that bloody safe deposit box, which I thought was mind (sic), and if I told 'em all that, that money was mine, so...' Question: 'But you would agree that there was no compulsion on you to tell that?' Answer: 'Yeah, there was.' Question: 'To tell the person there anything?' Answer: 'Yeah, there was.' Question: 'You are saying there was compulsion...' at which point the transcript records that the sound cut out momentarily. Some words follow which are largely incomprehensible. The statement was made by Hill: 'Three or four - three, three or four weeks, a month, whatever it was, I got befriended by this guy and he'd taken me out, given me 100 bucks, you know, for two hours work, just sittin' in the car watchin' his back and all this sort of crap and I thought this is really good and - and, you know, like, befriended me and then, you know, promised me all this shit, like all this money and a better life and all this, that sort of thing, and a better life and all that sort of thing and make - and make this go away and - yeah, pretty much okay for the rest, not for the rest of me life, but, you know, I'll be in with a good crew of guys and everything was going to be okay. That's what I was told.' Question: 'All right. So you are saying that what you said on the video was untrue?' Answer: 'I don't know about untrue, but it is just what I presume, you know, how it happened, and if it is - well, I don't know, I don't even know if it is.' The record of interview then goes on to other matters. The accused did not give evidence on the voir dire.

Notwithstanding those answers, I am satisfied that on the whole of the evidence the accused was not in any sense overborne or having his will affected by that which members of the gang said to him or did in his presence. I am not satisfied that there was any inducement; indeed, I am satisfied that there wasn't.

A reading of the record of the conversation at the Crown Towers hotel and seeing the video of that conversation leads me to the conclusion that at all times the conversation between the accused and either or all of the police undercover operatives was voluntary and made by him in a free exercise of his will to speak or not to speak. He could at any stage have left."[21]

110 These findings of fact were well supported by the evidence. Accordingly, the ground cannot succeed.

Ground 3(b)

111 In support of this ground, reliance was placed upon the conduct of the operatives throughout the operation, which it was asserted, was calculated, manipulative and deceitful. Against that background, four propositions were advanced.

112 First, it was asserted that the statements were elicited from the applicant in what Osborn, J., the trial judge in Tofilau[22], had earlier designated as the "functional equivalent" of a lengthy and searching interrogation that had earlier been proceeded by haranguement and exhortation. Therefore, it was submitted, the evidence should have been excluded on the basis of the inherent unfairness in the way in which it was secured.

113 Secondly, in considering the question of the forensic damage that the applicant was likely to sustain in consequence of the admission of the evidence, the trial judge failed to deal with the collateral prejudice that would be suffered by the applicant as a result of his active involvement with persons whom he believed to be criminals and thereby underestimated its significance.

114 Thirdly, that in considering a submission made by the applicant's counsel that the police had deliberately circumvented the protections contained in sections 464 and following of the Crimes Act 1958, his Honour failed to refer to the fact that the applicant had, according to Raymond Hill, already confessed to the murder.

115 Finally, it was submitted in this context that the employment of the techniques involved in the operation were not justified in the circumstances and that only as a last resort and in a "cold case" should their use be accepted.

116 His Honour addressed each of these matters, all of which I should add were the subject of submissions by defence counsel, in his Ruling. When summarizing the scenario evidence, he referred to the kind of staged activities involved, emphasizing their apparent criminal character. He adverted to the manipulation of the applicant by the operatives in their endeavours to develop a relationship with him and he had, as he made clear in one of the passages set out earlier, considered the Ruling of Osborn, J. in Tofilau which contains a discussion of the issues and principles in a similar case.

117 In this Court it was submitted, as in Tofilau[23], that it was unfair, as that term is employed in the authorities, for the evidence of the applicant's interactions with the operatives and the resultant inculpatory statements, to have been adduced in the trial. In support of this claim, the attention of the Court was directed to the scenario evidence which involved not only sophisticated and carefully orchestrated manipulation of the applicant for the sole purpose of persuading him that it was both safe and in his interests to confess to the commission of murder, but presented him as a person with the propensity and preparedness to engage in a wide range of serious criminal activities.

118 Counsel appearing for the applicant at the trial had, it was pointed out, submitted inter alia, that the likely prejudicial impact of the admission of this evidence was both apparent and unavoidable and that by reason of the "massive forensic disadvantage" at which his client would be placed, it should be excluded in the exercise of discretion.

119 The argument has been advanced that his Honour may have misunderstood this contention which he addressed in the following passage in his Ruling:

"The other basis upon which [Counsel] sought to have this material excluded was that of the general discretion of the court to exclude evidence in various circumstances where it is appropriate to do so. [Counsel] submitted that the admission of this material would impose upon the accused a massive forensic disadvantage. In this sense the term is an echo of the Victorian case of Pavic v. R. ... where Pavic's problem was the admission of an attempt to concoct an alibi.

In this circumstance, in the case that we are concerned with here, the forensic disadvantage to which Hill is exposed is that of having that which he did voluntarily admitted into evidence to prove his guilt or attempt to effect that end. In the circumstances, any forensic disadvantage is a forensic disadvantage created by the circumstances, not in any sense created by the admission of the evidence. To say that there is prejudice from the admission of this evidence is of course trite, but the prejudice is not such that ought to enliven the general discretion to exclude it in this circumstance."

120 The passage itself does not identify the precise evidence to which his Honour was referring and, it was submitted, he appears to have confined his consideration of the extent of possible forensic disadvantage to the evidence of the making of the admissions and not to have had regard to the prejudicial impact of the whole of the scenario evidence. There is, based on the manner in which his Honour expressed himself, a foundation for this argument. For my part, I find it difficult to accept that an experienced judge, well versed in the criminal law, was not conscious of or did not have regard to something as well understood as the potential prejudicial impact of the exposure of an accused person's criminal disposition. It must also be borne in mind that counsel for the applicant at the trial had provided his Honour with a document headed "Outline of Submissions for the Exclusion of Conversations with Undercover Operatives" in which this aspect was raised. In any event, the exclusion of the evidence of this basis would not have been justified.

121 Of course, there was a possibility of prejudice arising from the criminal propensities indicated by the scenario evidence. That was apparent from the outset and the trial judge had to address the question whether in consequence a fair trial could be held. He formed the view that it could, and I do not consider that it has been demonstrated that he fell into error in this regard. No complaint has been made either at the trial or in this Court in relation to the adequacy of his Honour's instructions to the jury on this aspect.

122 There is no substance in the complaint that his Honour fell into error when dealing with the argument that the evidence should have been excluded in the exercise of discretion on the foundation that its admission would be contrary to public policy. With respect to this aspect he said:

"[W]hat the police have done here is, although they have engaged in lies and deceit, they have at no stage in any sense infringed the rights of the accused or caused him to have engaged in activities which he did not wish to engage in. He saw the prospect of financial gain in associating with those whom he thought to be criminals, took the opportunity and engaged in it. He could have left at any time. He could have refused to speak at any time. He could have refused to further associate with any of the undercover police officers if he had wanted to.

When one examines the authorities such as Juric, to which I have referred, and the High Court case of R. v. Swaffield, R. v. Pavic, when one applies the High Court decision in R. v. Swaffield, R. v. Pavic, in my opinion, the circumstances in which the discretion to exclude ought to be enlivened do not arise in this case."[24]

This view was open on the evidence and I do not consider that this Court would be justified in arriving at the view that the discretion reposed in the trial judge had miscarried.

123 Finally, I see no merit in the curious contention that evidence secured by the adoption of the techniques employed in the present case should be excluded in all save exceptional circumstances and in "cold cases".

Ground 3(c)

124 As in Tofilau, counsel did not seek to rely on ground 3(c) unless he succeeded on one of the other grounds advanced. Accordingly it need not be addressed.

125 This application must fail.

[1] The relevant passage of his Honour's ruling is set out at [119] below.

[2] See R. v. Tofilau [2006] VSCA 40 at [2]- [3] and the last three sentences of [15].

[3] Counsel's argument is summarized at [111]-[115] below.

[4] R. v. Tofilau [2006] VSCA 40, R. v. Marks [2006] VSCA 42, R. v. Clarke [2006] VSCA 43 and R. v. Favata [2006] VSCA 44.

[5] On 18 August 2004, after hearing a plea in mitigation of penalty, the learned trial judge sentenced him to imprisonment for the term of 18 years, in respect of which a non-parole period of 15 years was fixed.

[6] The deceased and his younger brother, Brett Reynolds, are the children of Kaye Giles, from her marriage to Keith Reynolds. Giles subsequently married Frederick John Hill whose two sons are the applicant and Raymond Hill.

[7] It appears, however, that the deceased was only one of those that the applicant thought may have been involved.

[8] That statement was tendered as Exhibit "G" during the course of the trial.

[9] Exhibit "D".

[10] The audio recordings of the scenario conversations on 26 June, 2 July, 5 July, 10 July, 22 July and 2 August 2002, were tendered as Exhibit "J".

[11] The video-taped interview was tendered as Exhibit "N".

[12] During one of the scenarios, the applicant was shown a safety deposit box containing $8,000. He was told that this was his share of a burglary undertaken by the gang. It would be given to him when the notionally corrupt police connected to the gang completed their "check" of the applicant's criminal antecedents.

[13] Pursuant to s.149A of the Evidence Act 1958, the applicant admitted that he caused the deceased's injuries.

[14] [2006] VSCA 40.

[15] ibid.

[16] T122-123.

[17] Although counsel accepted that the Ruling of Osborn, J. in Tofilau would probably be adopted by the trial judge, he did indicate in his submissions that its correctness was challenged.

[18] His Honour was presumably referring to R. v. Amad [1962] VicRp 75; [1962] V.R. 545.

[19] T49-51. My emphasis.

[20] T65.

[21] T120-122.

[22] [2003] VSC 188; (2003) 149 A. Crim. R. 446.

[23] [2006] VSCA 40.

[24] T124-125.