R v Jones [2001] TASSC 121

Judgment ID Number: [2001] TASSC 121

1 I have been asked to exclude in the exercise of my discretion evidence of a prisoner, Littlejohn, to whom the accused while in custody of the Hobart Remand Centre, made a number of incriminating admissions. The substance of these statements was that he had killed the deceased in circumstances of sexual harassment which would be likely to reduce a murder finding to one of manslaughter.

2 The accused had been arrested for murder on 6 November 2000 prior to an interview on that day subsequent to which he was charged with murder and remanded in custody by a Court of Petty Sessions as the law requires. He had first been interviewed on 9 October 2000 and had denied any involvement in or knowledge of the murder. He had actually first drawn the attention of others to the fact that the deceased was lying in his backyard apparently dead. He had been present at his sister's residence in the small town of Lefroy all the previous night when the murder occurred. His happening upon the body about 6.30am was somewhat suspicious and his expressed reason for being there was disputed by other evidence. Between the first interview and his arrest he was known to have made a number of telephone calls to relatives. On one view, the statements he was said to have made in a disguised voice cast the blame otherwise than upon himself; others amounted to assertions that the caller, who did not identify himself but was identified as the accused by the receivers of the phone calls, was the murderer. One witness claimed that he had threatened her in the street and said, "I'll get you like I did the old man."

3 A torch which was found under the house where the accused had stayed on the night of the murder had been identified as belonging to the deceased and some blood had been found inside the house in the laundry. There appears to have been no forensic evidence of blood or other DNA from the deceased being found on the accused's clothing, belongings or person.

4 At the time of the arrest, the police had the thinnest of circumstantial cases against the accused and the interview following the arrest on 6 November did not advance the case. In these circumstances, Inspector Otley who had, he said, given it some thought even before the anticipated arrest, decided to approach a police informant who was then in custody serving a lengthy sentence, but was in the Hobart Remand Centre. He telephoned him and asked him to keep his eyes and ears open for any information he could obtain about the murder, and the Inspector arranged for the accused to be placed in custody in the same area of confinement as Littlejohn.

5 He did not tell Littlejohn any of the circumstances of the murder other than it was a murder at Lefroy, but said he wanted information in respect of two specific matters, namely whether anyone else was involved and what had become of the murder weapon which the police had been unable to find. This approach was made to Littlejohn by Inspector Otley on 8 November 2000. Shortly afterwards the accused was placed in the Hobart Remand Centre and Littlejohn made contact with him.

6 Littlejohn tutored about seven other prisoners in literacy and invited the accused, who has limited skills in that area, to join in. The latter agreed and this led to daily one-on-one contact of up to three-quarters of an hour between the two men in which the accused received help from Littlejohn in reading and writing.

7 In the course of this contact, I find that the accused, who protested his innocence to his fellow prisoners, raised with Littlejohn the question of how he could reduce the charge to manslaughter. Littlejohn told him that, "the only way he probably would get off was if he said that the old man sexually assaulted him and things like that". They spoke about the suggestion over several days and Littlejohn asked the accused what evidence the police had. The accused spoke of the torch, the telephone calls and the blood on the washing machine and referred to these items of evidence as damaging_._ Littlejohn recorded the substance of the conversation in writing, keeping a copy for himself and giving the accused a second copy which the accused told him later he had destroyed. The notes record what in effect is a fabricated story of a killing induced by provocation in the form of sexual advances from the deceased.

8 The opening speech on the trial by defence counsel clearly resiles from any contention that this is the defence case; rather the defence case is that another man named Shaw killed the deceased in the accused's reluctant presence during a burglary on the house next door undertaken by the two of them. Littlejohn reported his dealings and discussions with the accused to Inspector Otley and agreed with his suggestion that he obtain corroboration by way of wearing a listening device.

9 Authority for this course was given by a Magistrate pursuant to the Listening Devices Act 1991 and on two occasions Littlejohn recorded conversations with the accused in late November during which the provocation story was repeated.

10 The evidence is of considerable probative value as it contains an admission of killing the deceased in circumstances inconsistent with the defence theory now being advanced and demonstrates a propensity on the part of the accused to lie for his own purposes. This affects not only general credibility, but would justify a direction concerning the probative value of lies told through a consciousness of guilt.

11 I have been asked to exclude the material on the basis that it is unfair to the accused to use it on his trial and further that it is contrary to the policy considerations adverted to in such cases as R v Ireland [1970] HCA 21; (1970) 126 CLR 321, Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 and Cleland v R [1982] HCA 67; (1982) 151 CLR 1. Mr Brett emphasises that the accused was in custody, he had made denials of involvement to police, they were precluded by the Criminal Law (Detention & Interrogation) Act 1995 from questioning him without the safeguards of that Act and they deliberately used an agent to do what they could not do themselves. I think there is considerable force in this submission. In Pfennig v R (No 1) (1992) 57 SASR 507, Cox J of the South Australian Supreme Court excluded evidence procured in similar circumstances. The accused had declined to answer any police questions but had been charged and remanded in custody. The police had suggested to another prisoner that he befriend the accused, obtain his confidence and seek admissions which the informant claimed were made but which the accused denied making. At page 514 the trial judge said:

"The police set a trap for the accused of an impermissible kind. Any volunteered statements were interspersed with Rose-Royal's questions and suggestions and deceptions. It is as though the police, faced with a plain refusal to answer, sent in an undercover police officer in disguise to interrogate the accused or otherwise inveigle him into making admissions. Anything said in response to such a stratagem in the circumstances described would have to be ruled inadmissible, and the result here must be the same."

12 Evidence of a prison informant was admitted in Lowe v R [1997] 2 Vic R 465, but the circumstances were different. The accused had initiated incriminating conversations with the informant who had then approached the police and had been fitted with a listening device to record the admissions and to corroborate the earlier untaped admissions. In these circumstances, the Victorian Court of Appeal found nothing improper or unfair in the admission of the evidence.

13 In Swaffield v R; Pavic v R [1998] HCA 1; (1998) 192 CLR 159 the High Court dealt with two similar issues. In the former case, a police officer acting under cover had procured admissions without the protection of cautions and videotaping facilities and the trial judge's rejection of the evidence was upheld. In Pavic's case, the accused had made no answers to police questioning and had been released for a lack of evidence. The police then approached a friend of his who wore a listening device and spoke to the accused who made admissions to him. The admission of the evidence was upheld. At pages 185 - 186 Brennan CJ said:

"In Pavic's case the confessional statements were made to Clancy whom Pavic knew as a friend. Clancy was not a police officer or other person in authority over Pavic. There was no impropriety in the police obtaining Clancy's consent to the recording by Clancy of his intended conversation with Pavic. A serious crime had been committed and the means adopted for its solution and for the securing of evidence against the prime suspect, were quite legitimate. The investigation of a crime is not a game governed by a sportsman's code of fair play. Fairness to those suspected of crime is not giving the sporting opportunity to escape the consequences of any legitimate and proper investigation or the giving of a sufficient opportunity 'to invent plausible falsehoods'."

The joint judgment of Toohey, Gaudron and Gummow JJ noted that as the accused was not in custody at the time, neither the Judge's Rules nor any statutory requirement for caution had any application.

14 In this case, however, the accused was in custody. The police did set up a meeting with Littlejohn by arranging for the accused to be incarcerated with him and by asking Littlejohn to spy upon him. But for this arrangement the prosecution might never have known of the accused's alleged attempt to fabricate a defence based on provocation or, if not his attempt to do so, his apparent willingness to adopt such a strategy.

15 I think it would be unfair to admit this evidence on the accused's trial and that it is contrary to the public interest that where a suspect has denied his involvement, where the statutory requirements of the Criminal Law (Detention & Interrogation) Act 1995 have been observed, and where he has been incarcerated, especially on a case which was then a very weak one, that the prosecution should be permitted to rely on damaging statements made by the accused in circumstances where the police through an agent encouraged the making of incriminating remarks. It is one thing to procure information as to where real evidence, such as the murder weapon might be located, or as to the identity of a co-offender so that further evidence may be marshalled; it is another to use the unguarded statements of a person in custody who does not initiate their making. I rule that the evidence is not to be admitted.