R v Jones & Ors

The evidence 17 Following the incident Ellen Smith returned to the caravan park at Parklea where Elizabeth Jones and Lydia Jones were also residing. Ms Smith gave evidence that in the days after the fatal attack she kept in contact with the other two women. 18 Ms Smith gave evidence that although the police had taken possession of her mobile phone, she was provided with a number at which her husband could be reached. In fact she was told by Lydia Jones that she (Lydia) had been told by Elizabeth Jones to give "the men" a call. That was a reference to the applicant, his grandfather and Sam Jones Jnr. In any event Ms Smith rang the number on 15 October. The phone was answered by Sam Jones Snr. She spoke briefly to him and informed him that his wife had been arrested. The phone was then passed on to the applicant. She gave evidence of having had the following conversation with him: Adam said, "Why's me granny in for. They should kept their mouth shut (meaning my family). They're all gonna die." I started to cry. Adam said, "Don't cry, they deserve everything they get." I said, "Do you realise that you have murdered my uncle?" He said, "Yes I do. He deserved it and I wouldn't change it for the world." I was to (sic) hurt to say anything and kept crying. Adam said, "Don't you go anywhere. Stay there. Go in and visit me old granny (meaning Naomi)." I said, "Well you can't keep telling me what to do. Just come back, go into the musgeras (police)." He said, "Get fucked" and hung up the phone. 19 On 18 October she had a further conversation with the applicant. They had a short discussion about the possibility of raising money to enable Elizabeth Jones to be released on bail. 20 Ms Smith said that she was reminded during the course of the morning of 20 October by Lydia Jones that she was to "call the boys" (presumably to let them know what had happened in relation to Elizabeth Jones). Later that day Ms Smith was taken to Quakers Hill Police Station from where the phone calls were made.

The first call 21 The first phone call was made at about 1.30 pm. Police rang the number which they had for the applicant and the phone was answered by the applicant's grandfather who told Ms Smith that the applicant had "been waiting for you to call". During the conversation she asked him if he had any plans to come home. The applicant told her that he was going to get a false passport and requested that she also get a passport. Ms Smith also asked where the applicant was and from his answer she assumed that he was up north somewhere, perhaps in Queensland. 22 At 1.35 pm Ms Smith decided to terminate the call and told her husband that she had to do so because she was running out of change.

The second call 23 The second call commenced at 4.25 pm and was terminated at 4.35 pm by Ms Smith because she had become very upset by the conversation. The flavour of the second conversation can be gauged from the following exchanges: Ellen Smith I want to know, did you do anything? Adam Jones What do you mean?

Ellen Smith Of that night. Adam Jones Yeah.

Ellen Smith What did you do? Adam Jones Poggered (hit) him.

Ellen Smith Did you pogger my uncle with anything? Adam Jones Yeah.

Ellen Smith What? Adam Jones I don't know a shiv (knife).

Ellen Smith Why? Adam Jones Because they was all poggering.

Ellen Smith Well, there was not need for you to do anything was there? Adam Jones Yes, there was, yeah.

Ellen Smith Why was there? Adam Jones Because when we walked up, they call (sic) come running with bats and axes.

Ellen Smith That's bullshit. Adam Jones It's not bullshit.

Ellen Smith Yeah, that's bullshit. Adam Jones I swear on your life, they had bats and axes, your dad had a hatchet. Right. They come charging out, women was throwing bricks and bottles,…… and we got it on.

Ellen Smith Well, do you know you killed him? Adam Jones I never killed him, no.

Ellen Smith Well, who killed him then? Adam Jones I don't know.

Ellen Smith Well, who was poggering my, my uncle whose (sic) mollered (killed). Adam Jones Me and me dad.

Ellen Smith Well, then both of youse killed him then. Adam Jones I never, no.

Ellen Smith So your dad killed him? Adam Jones Well, I don't think ……you know, it just happened didn't it, he went down. … Ellen Smith ….you've ruined my relationship between me and my family, I hope you know. Adam Jones ……no, she, they had a lot of mouth, they hit me. Ellen Smith I should think they would hit you back. Adam Jones Why? Ellen Smith Because of what you've done. Adam Jones They were the ones that started it. Ellen Smith What? Adam Jones They started it. Ellen Smith Well, I don't believe that, I'm sorry. Adam Jones The one that was mollered he started it by having a lot of mouth. Ellen Smith He never had no mouth. Adam Jones He did have mouth, yeah. Ellen Smith And thank you very much, you pulled the knife first. Adam Jones No they all come running with….. Ellen Smith You pulled the knife before anything ever happened, you pulled the knife. Adam Jones They had a lot of mouth and there you go, he got sorted out. ….. Adam Jones ………they tried to do us, they wasn't, the one that was mollered he had pick axe handle and your dad had a tomahawk. Ellen Smith What's ………. tomahawk?

Adam Smith Like a small hand held axe. Ellen Smith That's bullshit.

Adam Jones No, it ain't bullshit, no, he did. Ellen Smith Yeah well, I don't believe that.

Adam Jones No, I'm telling you he did. Your Noah hit me grandfather with a lump of scaffolding pipe and …..near broke his arm. Ellen Smith What was I gunna say, I was just thinking …

Adam Jones No, he got chinned up. So what are you, so who hit Noah? Adam Jones Grandfather gelled (hit) him a few times and I think I chinned him in the back. Ellen Smith So you're the one who left the eight stitches in his back, yeah?

Adam Jones I think so, I'm not certain, but I think so.

…. Ellen Smith …You know, you've ruined everything, you who never ever listens. Adam Jones I haven't ruined anything, no.

Ellen Smith Well, you never ever listen, do you? Adam Jones He shouldn't have got wired up …… they come charged ….. all stuff, trying to pogger us, I got gelled a few times, and you know ---

Ellen Smith Yeah, well, that's, that's shit Adam Jones Babe, it aint shit at all, they even sent their women out, throwing bricks and bottles.

Ellen Smith Because youse cunts was on my Uncle Bill like fucking animals. Adam Jones No, we wasn't, no, it took 10 seconds, that's all it took and he was down mollered.

Ellen Smith Well, it took 10 seconds to about leave about 18 wounds in him, open wounds Adam Jones There wasn't 18, …..

Ellen Smith There was, there was 18, 17 or 18 wounds, there was an open casket. Adam Jones Open?

Ellen Smith Yeah. Adam Jones What, even all butchered?

Ellen Smith Yeah, it was butchered, mother's cunt. Adam Jones Yeah, well, there you go, he shouldn't have pulled a fuckin' pick axe handle out, and come runnin' with it.

Ellen Smith Well, no, he didn't, I don't believe that, sorry. Adam Jones Well, I'm telling you now, he come, we was walking home and he come out and he started …. I swear on your life, this is what happened ---

Ellen Smith It's no good taking oaths on my life because I don't believe you. Adam Jones He said, he said, "You want some do you, you fuckin' want some," and he come running with this pick axe handle, he gelled me dad and me dad gelled him, there was an …… boom, boom, that was it. …. Adam Jones --- O.K. And they come running out, like, they had all the weapons and there you go, they got beat. Ellen Smith Where did you get your weapons then?

Adam Jones I had it. Ellen Smith So you walked down there with weapons, so I suppose they seen you walking with weapons --

Adam Jones No, no, no, we all had ours pugged up (hidden), and they had theirs …… because we could see 'em from the road, they all had bats and lumps of iron. Ellen Smith That's because you, you, your bald headed father, called for them to come down.

Adam Jones No, …… no, he did, yes, there was loads of them and they ….. Ellen Smith There's not loads of them.

Adam Jones There …… no, they even had women, one of your sisters hit me in the fucking arm with a ……..

… Adam Jones Now, it's no good you keep being upset about all this. Ellen Smith How can I not be upset?

Adam Jones Because they started it, he started with his mouth and you know, unfortunately for him, he got mollered. Ellen Smith I think you need to go get some fucking mental treatment or something --

Adam Jones No, no, no, no. Ellen Smith --- you need to go into a nut asylum.

Adam Jones No, no, they tried to pogger us, Noah hit me grandfather with a lump of scaffold pipe, fucking near broke his arm, right, the others were throwing bottles, your old poxy grandfather had a chair above his head, trying to gel one of us with it. Ellen Smith That's because youse were fuckin' hitting them.

Adam Jones That's right, yeah, we had, we had a battle. Ellen Smith Yeah, you had a battle ---

Adam Jones Yeah. Ellen Smith --- and my uncle got, lost out of it, he's dead now because of you.

Adam Jones Yes, that's, no, not because of us, because of him, just, it was 50/50, we met, we poggered, and that's it. Ellen Smith It wasn't 50/50 at all, that's bullshit, there was no need, if youse had a stupid row you could've sorted it out in the morning and thank you, you was the first one, correct me if I'm wrong, youse was the first one who pulled the knife out in the very, very beginning before anything happened.

Adam Jones No, it wasn't because anything happened, he was saying, I'll fucking kill youse I'll fight the two of youse … Well there you go he fought the two of us and he got knifed. Ellen Smith Yeah, well you pulled the knife out first, didn't you?

Adam Jones Yeah. Ellen Smith Well, there you are, you started it.

Adam Jones …… no, the ….. to chat. Ellen Smith Because youse all walked down there like a fucking load of freaks.

Adam Jones No, no, no, no, before when there was only me and me old dad there, all them come, all chats and all they all had chats (weapons) pugged up, they was ready for it --- Ellen Smith Yeah, well ---

Adam Jones --- … Ellen Smith --- I'm pleased that no-one thought of me.

Adam Jones We did think of you, yeah. Ellen Smith How did you think of me while killing me uncle, is that how you thought of me?

Adam Jones I never meant to moller (kill) him, I just meant to chin him up a bit. Ellen Smith Yeah, well, backward … you don't believe in a fair fight.

Adam Jones No, they had the chats, they had the chats and when we walked over there, when we was standing on the road, they was all there, big lumps of iron, together, they all had something in their hand, women, children, mushes (men), the lot. They all tried to pogger us. (I have included where appropriate the English translation for various Romany Gypsy expressions). 24 Detective Senior Constable Wheeler gave evidence that police had a two-fold purpose in obtaining the listening device warrant. First, they wanted to try and locate "the Jones boys" and secondly to "find any information [that would] assist us in the investigation". She gave the following evidence: Q. Can you tell his Honour what, if any, instructions you gave or other police in your presence gave to Ellen Smith prior to her making that very first call at 1.25? A. The instructions were fairly general about trying to get them to talk about where they were, what had happened and who had done what. It was fairly generic, just trying to get them talking about what happened that night and trying to narrow down where they were.

Q. Did you provide any written questions or instructions to Ellen Smith? A. No. (t. p 52, lines 35-46) 25 Nor, she said, was Ms Smith provided orally with questions which police wanted asked of the applicant. 26 Detective Wheeler said that Ms Smith had been quite timid and nervous during the first call. There was then a three hour break before the second call. During that time, Ms Smith was taken to a Centrelink office and was then provided with lunch. Police decided that there should be a second call. Ms Smith told police that she "could do better". Police advised her to be forceful. She was told to be argumentative with the applicant. Detective Wheeler agreed that "basically" it was suggested that she should "pick a fight" with her husband. Detective Wheeler said that she saw no reason to make a third call "because we got what we wanted. We got a location and then we got some information…". 27 Ms Smith gave evidence which was broadly consistent with the testimony given by Detective Wheeler. She said that at the time of the calls she did not know where the applicant was. She said that she told police that she had a mobile phone number for him and suggested that police put a "trace" on a call to him. She said that she wanted to ascertain his whereabouts for herself. She confirmed that she had not been provided with anything, either in writing or orally, as to what she was to say to the applicant. She denied a suggestion that she and the police had discussed tactics as to what she was to say. She said that police told her to "be myself and talk normal and just try to get as much [information] as [you] can." She gave evidence that "I didn't know what part [the applicant] had in any of this and I wanted to know for myself what he did do." 28 In cross-examination she agreed that she had challenged the applicant's version of events even though she had not actually witnessed the fatal incident. She denied however that she had received any information about the incident from her family. She maintained that she had not had any conversations with members of her family until sometime after the phone calls. It would appear however that she had received some information from police as well as from both Lydia and Elizabeth Jones. There were also, however, some things of which she said she did have direct knowledge. She had on her account for example, seen the applicant produce a knife before the altercation at a time when they were both socialising with members of her family. She had also witnessed the applicant and his father carrying weapons with blood upon them after the incident. 29 Ms Smith agreed that at an early stage of the investigation she had formed the view that the applicant was one of the people who had killed the deceased. She also said that she had wanted to return to her family but had felt unable to do so until "the Jones got caught". She said that accordingly she had decided to assist police. She also said that she did so because she felt that she "owed something to Uncle Billy". She said that prior to the calls, the police had tried to "upset me so that I would just go for it" when speaking to the applicant. They had done so, she said, by providing her with details about the attack upon her uncle and by referring to his funeral which had taken place the previous day. She then gave the following evidence: Q. You swore at him? A. Yes, I did.

Q. You were abusive towards him? A. I was just very upset at the time.

Q. But you were abusive towards him notwithstanding your upset state? A. What you do you mean before any of this happened?

Q. No, no, during the call? A. Yes.

Q. At the time you made the calls you hated him? A. Yes, I did.

Q. You wanted to get out of the marriage; you had made up your mind at that time? A. Yes.

Q. You wanted, no matter how, to gain evidence to get him convicted of this matter? A. Yes.

Q. Because you could get on with your life? A. Yes. 30 On October 22 Ms Smith received a phone call from the applicant. The call was received on Lydia Jones' phone which she handed to Ms Smith. The following conversation, which was not recorded, then took place: He said, "I'm sorry. Look after yourself and I want you to know that I want you to speak with your mum and dad and your sisters and that. Just don't tell them anything about me." I said, "Okay". He said, "I'm sorry for getting us all into this. It wasn't meant to happen this way." I said, "I don't believe it when you say my people started it first." He said, "I will swear on my grand fathers grave that I'm going to tell the truth. Granny was there but she never got out of the car. I know that your people's not saying that. I just think that the police are trying to flush us all out. It was your people that started first. We was going down for a fair fight but Bill had a pick axe and came running down saying, "You want some, you want some". Bill gave the first hit. Then everyone just sorta got fighting. And Noah had a piece of scaffold and swung back and hit grandfather as hard as he could in his arm. I swear on your life there was no guns unless your people shot them off into the air." I said, "Thank the blessed Lord his (sic) not. But I just couldn't understand why my Dad never had anything done to him." He said, "That's because your Dad and Joey just stood back out of the way. It wasn't meant to happen how it happened. Please believe me. I gotta go now." We said goodbye and he hung up. 31 On October 25 Ms Smith called the applicant. They had a short conversation in which there was further reference to Elizabeth Jones' prospects of obtaining bail. 32 The following day the applicant was arrested by Queensland police pursuant to an arrest warrant which had been issued in New South Wales on 21 October. 33 After his arrest, the applicant was taken from Mermaid Beach to Brisbane where he was interviewed by Queensland police officers during the course of the afternoon of 26 October. The following exchange took place: Q. O.K. Do you agree that it was explained to you that you'd been arrested in relation to matters in New South Wales? A Yes.

Q O.K. And that we did explain to you that detectives from New South Wales were travelling or would travel up here to speak with you or to deal with the matters for New South Wales. A Yes.

Q Did we explain that to you? A Yes, yes.

Q O.K. We explained to you at the time that whilst it wouldn't probably be our place to speak with you about those matters. A Yes.

Q O.K. And that the New South Wales detectives would talk about that. A Yes.

Q O.K. You indicated to us that you were prepared to talk about the matters in New South Wales because you were … A Yes.

Q … Keen to explain what occurred. A Yes.

Q And we again told you that that was matters for New South Wales. A Yes, you did. … Q O.K. What's occurred is the New South Wales detectives have asked us that, because you've indicated a willingness to talk about, give a version about what happened in New South Wales, they've asked us that we speak with you now because they may not be here for some time …

Q … and it might be convenient for yourself to speak about it. What I have to do is, I need to give you, tell you some things that are important for your knowledge, so that the interview is conducted fairly.

Q As I said, you have indicated to us that there's a lot of things and you indicated that you've actually, you told us, well, you told me that you'd like to talk about it because you haven't been sleeping well and you've been feeling sick about what occurred down there.

Q That's when we told you that, you know, New South Wales detectives would come and talk about that.

A. Yes. (Q/A 45-52, 59-60, 74-5) 34 After being cautioned, the applicant provided police with a comprehensive version of what he said had occurred both prior to, and during the course of the incident. It is unnecessary to refer to the fine detail of what is contained in that interview. What follows is a brief summary only of what the applicant told police. He informed them that he had been socialising at the caravan park with his parents and members of the Smith family when an argument had occurred. Following the argument he said that he had returned to his caravan. Later he said that he had seen members of the Smith family gathering around his father-in-law's caravan. In all he saw about 20 people, whom he said, had been armed with a variety of weapons. In due course there had been an altercation. He said that he had been insulted and that threats had also been made by members of the Smith family. He said that he, along with his father, had been struck. He maintained that none of the Jones family had been armed although he did concede, at one stage of the altercation, to having been in possession of what he called an annex pole. 35 In essence, he maintained that he and members of his family had been set upon by members of the Smith family whom, he said, were armed at the time. 36 The following day, police from NSW who were investigating this matter, arrived in Brisbane. At the outset of the interview with NSW police, the applicant said: "I'm happy to talk now, it is just that I have got a, a very, very bad headache…and I don't feel too good today. I answered a lot of questions the other day." 37 After a short break, the interview continued. A little later the applicant said, when police asked him if he wanted to say anything in addition to what he had told the Queensland police: "I don't want to go into it right now, cause I..honestly don't feel well…I know I will have to later on, but I just got a real bad headache and I can't think…stuff it up and I'd rather not touch on that." 38 He was then played a recording of the conversations which are the subject of the present application and was asked if he wished to say anything about them. He replied that he did not wish to. He also said that he wished to get legal advice before deciding whether he would be prepared to participate in a line-up.

The relevant legal principles 39 In R v Em [2003] NSWCCA 374 the Court of Criminal Appeal analysed the operation of ss 90 and 138 of the Evidence Act. Howie J, with whom Ipp JA and Hulme J agreed, observed that: The discretion under s 138 is similar to that which was described in Swaffield as the public policy discretion at common law. Of course, there is a significant difference between the discretion under s 138 and that at common law: the section requires that the Crown persuade the court to admit evidence that was improperly or unlawfully obtained. But just as at common law, the public policy discretion was distinct and separate from the unfairness discretion, so the discretion to admit evidence under s 138 is a distinct and separate discretion from that arising under s 90. The two discretions may overlap but they are not synonymous. Section 138 is not, in its terms at least, concerned with the court ensuring a fair trial for the accused. Certainly that is not a paramount consideration when exercising the discretion. The discretion exercised under s 138(1) seeks to balance two competing public interests, neither of which directly involves securing a fair trial for the accused. In the joint judgment in Swaffield at [52] their Honours discuss the four bases at common law for rejecting evidence of admissions. The second of those was the discretion to reject evidence because its admission would be unfair to the accused, a discretion now found in s 90. The third was the public policy discretion, now found in s 138. Their Honours said:

The third basis focuses, not on unfairness to the accused, but on considerations of public policy which make it unacceptable to admit the statement into evidence, notwithstanding that the statement was made voluntary and that its admission would work no particular unfairness to the accused. The purpose of the discretion which is brought to bear with that emphasis is the protection of the public interest.

In Foster v The Queen (1993) 67 ALJR 550 at 540 it was stated that, although the unfairness discretion and the public policy discretion may overlap, their focus is different: in the former the focus is on the effect of the unlawful conduct on the particular accused and in the latter the focus is on "large matters of public policy". … Section 90 in effect confers on the trial judge a discretion to reject evidence of admissions where to admit them would result in an unfair trial for the accused. It is unfairness arising from the use of the admissions by the prosecution that is central to the discretion under the section and not whether the police unfairly treated the accused. The purpose of the discretion is the protection of the rights and privileges of the accused. It is concerned with the right of an accused to a fair trial and includes a consideration of whether any forensic advantage has been obtained unfairly by the Crown from the way the accused was treated; Swaffield at [78]. There may be an overlap between issues of voluntariness, reliability, fairness to the accused and the public policy discretion; ibid at [74]. In the joint judgment of Toohey, Gaudron and Gummow JJ in Swaffield , and relying upon Van der Meer v The Queen (1988) 62 ALJR 656 at 662, and Duke v The Queen (1989) 180 CLR 508 at 513, their Honours stated at [54] (footnotes not reproduced):

Unfairness then relates to the right of an accused to a fair trial; in that situation the unfairness discretion overlaps with the power or discretion to reject evidence which is more prejudicial than probative, each looking to the risk that an accused may be improperly convicted. While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone. It may be, for instance, that no confession might have been made at all, had the police investigation been properly conducted. And once considerations other than unreliability are introduced, the line between unfairness and policy may become blurred. Having later considered decisions in both Australian and Canadian jurisdictions concerned with the exercise of discretion in cases where the police had secretly taped conversations between the accused and another person, their Honours stated at [91]: ……….. In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations. Although there is no longer, in this State, a common law discretion to reject admissions on the basis of unfairness, there is no relevant distinction between the scope and purpose of a discretion to reject evidence of an admission under s 90 and that which exists under the common law as declared in Swaffield , see ibid at [91]. … But, in my opinion, an assessment of the probative value of the evidence is not a matter of significance in the exercise of the discretion under s 90. At common law a significant factor in the exercise of the unfairness discretion was the reliability of the admission, although it was not necessarily decisive; Swaffield at [78]. This was because the purpose of the discretion was the protection of the rights and privileges of the accused, including procedural rights occurring in the trial process. Similarly under s 90 the reliability of the evidence may be significant, because, if it is unreliable, there is more risk that its admission will result in an unfair trial. But if its reliability is accepted, and there was no finding by his Honour that the evidence was unreliable in the present case, then it seems to me that an assessment of probative value has little significance in the exercise of discretion. Certainly its lack of probative value does not seem to me to be a matter that indicates that the evidence should be rejected. Arguably, the less probative weight the evidence has, the less likely is its admission going to result in an unfair trial. … As I have indicated, the question arising under this section is whether the admission of the evidence would give rise to an unfair trial. With respect, I do not see how the seriousness of the offence, for which the accused is to stand trial, can have any relevance to an assessment of whether the trial would be unfair as a result of the admission of the evidence obtained by police misconduct. In my view, it simply cannot make any difference to the outcome of that assessment whether the accused is standing trial for murder or whether the trial relates to a charge of stealing from a shop. If the reception of the evidence leads to an unfair trial and it results in a conviction, there must be a miscarriage of justice regardless of the nature of the offence to which the conviction relates. (pars 74-75, 104-107, 110, 113) 40 It is also instructive to refer in a little more detail to the facts in R v Swaffield; R v Pavic (1998) 192 CLR 159 respectively. They are described in the following fashion by Brennan J: In December 1995, Swaffield was charged before the District Court at Rockhampton on an indictment containing three counts: breaking, entering and stealing, breaking and entering with intent to commit a crime and arson. The prosecution alleged that he had stolen cutting equipment from a workshop (count 1) and used the cutting equipment to enter the Leichhardt Rowing Club (count 2) to which he wilfully and unlawfully set fire (count 3). Two years earlier, he had been charged with the same offences but the police offered no evidence against him at the committal hearing and he was discharged. Then, in May 1994, Swaffield became one of the targets in a police undercover operation to detect drug suppliers. Posing as a purchaser of illegal drugs, Constable Jacob Marshall engaged Swaffield in conversation on 11 and 16 August 1994. During these conversations, Swaffield made admissions about his involvement in the arson of the Leichhardt Rowing Club. The conversations were recorded by Constable Marshall without Swaffield's knowledge. Fresh charges were laid against Swaffield. At his trial, Constable Marshall's evidence of Swaffield's recorded admissions was tendered over objection by Swaffield's counsel that those admissions had been obtained unfairly and that the police had demonstrated a disregard of the relevant Judges' Rules. Judge Nase disallowed the objection and the admissions went into evidence. Swaffield was convicted and sentenced on all three counts. He appealed to the Court of Appeal only against his conviction for arson (count 3). The Court of Appeal allowed his appeal by majority (Fitzgerald P and Helman J, Pincus JA dissenting) holding that the trial judge erred in the exercise of his discretion by failing to give sufficient weight to the respondent's right to silence. The conviction for arson was quashed and a verdict of acquittal entered. By special leave the Crown has appealed to this Court against that order. Pavic's case Police were investigating the murder of a man named Andrew John Astbury, whose body was found in the Yarra River handcuffed to an electric motor casing. The police interviewed Pavic on 3 January 1995 at the homicide squad office at St Kilda Road in Melbourne. At the beginning of the interview, Pavic was given the usual warning and he was advised that he had a right to communicate with his solicitor. He contacted a solicitor. When questioned by the police, acting on his solicitor's advice, he made no comment on the questions put to him. During the questioning, the police informed Pavic that he was believed to have committed the offence of murder. Nevertheless, at the end of the interview, Pavic was allowed to leave the office. On 4 January, the police recovered from the Yarra River a garbage bag containing blood-stained towels and clothing. On 9 January they obtained a statement from Lewis James Clancy in which he identified some of the clothing as clothes which he had left in Pavic's vehicle some time before. Pavic had told Clancy that he had lost the clothes and insisted that he accept $50 for them. This satisfied the police that they had sufficient evidence to arrest Pavic and charge him with murder. After his interview with the police, Clancy agreed to being fitted with a microphone to record a conversation with Pavic. At Pavic's trial, Clancy gave evidence that he agreed to participate in the police investigation by being fitted with a microphone because he wanted to dispel what he perceived to be the police belief that he was implicated in the murder in some way. He conveyed that belief to Pavic, as the police contemplated that he would, although the fact was that at that time Clancy was not a suspect. In the conversation with Pavic which Clancy recorded, Clancy told Pavic that the police had recovered his clothing stained with blood. In the ensuing conversation, Pavic made a number of inculpatory statements. Pavic, who had pleaded guilty to manslaughter, was convicted of murder. The Court of Appeal of Victoria dismissed his application for leave to appeal against his conviction. Special leave was granted to appeal to this Court against that dismissal. (pars 2-7) 41 His Honour arrived at the following conclusions about the two cases: In Swaffield's case, the Court of Appeal allowed the appeal because, in the view of the majority, the evidence of Swaffield's admissions to Constable Jacob Marshall, the undercover police officer who had gained Swaffield's confidence, ought to have been excluded. Consistently with the role he was purporting to play, Constable Marshall had not given Swaffield any caution before leading the conversation to the point where he elicited the inculpatory admissions from Swaffield. The circumstances in which those admissions were made throw no doubt on their voluntary nature or on their reliability. I would therefore consider the case under the public policy discretion. Helman J, with whom Fitzgerald P agreed, observed that, if the evidence were admitted "the requirements of the Judges' Rules could be avoided by the simple expedient of the investigating police officer's assuming a suitable disguise and then proceeding to interrogate the suspect". His Honour concluded that the trial judge "was clearly wrong in failing to give sufficient weight to the protection of the appellant's right to silence, and as a result of that error his discretion miscarried". The "right to silence" to which his Honour referred was simply the entitlement of Swaffield, whom the police believed to be guilty of the alleged arson of the Leichhardt Rowing Club, to be cautioned by any police officer who proposed to question him about that alleged arson. Giving that content to the "right", it is correct to say that the trial judge did not give weight to Swaffield's "right to silence". … In Swaffield's case, Constable Marshall, who was relevantly a person in authority, deliberately represented himself not to be a police officer in order to secure answers to questions which Swaffield had earlier told the police that he would not answer. True it is that Constable Marshall had adopted an undercover guise in order to pursue investigations into drug offences, not into the arson offence. There was nothing improper in Constable Marshall adopting that guise in order to obtain evidence of drug offences, but Constable Marshall went outside the investigation into drug offences. He deliberately sought admissions relating to the arson which Swaffield had previously refused to make to the police, as he was entitled to do. There is a public interest in ensuring that the police do not adopt tactics that are designed simply to avoid the limitations on their inquisitorial functions that the courts regard as appropriate in a free society. In the particular circumstances of this case, the majority of the Court of Appeal gave great weight to that interest. Against that interest, the public interest in having Swaffield's admissions available to the Court on his trial for arson has to be weighed. Pincus JA dissented. There is much to be said for either view. This Court can determine which view ought to have prevailed but when the question touches the standards and methods of police investigation in a particular case, it is undesirable for this Court to intervene except in cases where the decision of the Court below has proceeded on an erroneous principle or is otherwise manifestly wrong. In Swaffield's case, that condition is not satisfied. I would therefore dismiss the appeal in that case. 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 crime is not a game governed by a sportsman's code of fair play. Fairness to those suspected of crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation or the giving of a sufficient opportunity "to invent plausible falsehoods". The fact that Clancy was regarded as trustworthy by Pavic is an indicator of the reliability of the admissions made to Clancy . There was no public interest to be served by rejecting those admissions. The Court of Appeal in Victoria was therefore right to dismiss Pavic's application for leave to appeal. (pars 31-36) (emphasis added) 42 In their joint judgment, Toohey, Gaudron and Gummow JJ, refer to various Canadian authorities. Their Honours continued: In R v Broyles the Supreme Court of Canada was constituted by La Forest, L'Heureux-Dube, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ. The judgment of the Court was delivered by Iacobucci J. The accused was charged with murder; the evidence against him was largely circumstantial but it included a statement which the accused made to a friend after his arrest and after he had been cautioned that he was not required to say anything. The friend visited the accused in prison at the request of the police. The friend wore a recording device. The friend questioned the accused about the killing of the deceased. The evidence of the statements made to the friend was excluded pursuant to a provision of the Charter. The Court identified two questions which were necessary for decision but which did not have to be answered in Hebert. The first was whether the friend was an agent of the State. The second was whether the accused's statement had been elicited by the friend. The Court held that the friend was an agent of the State during the conversation. The meeting was set up and facilitated by the police and, without the intervention of the authorities, there would have been no conversation. The Court held further that the statement had been elicited because parts of the conversation were in the nature of an interrogation, not just parts of a conversation which flowed naturally. It concluded that the admission of the evidence would render the trial unfair. … 43 In considering Pavic's application, the majority observed: No caution was administered by Clancy, which is hardly surprising in the circumstances. The circumstances are close to those in Broyles, the Canadian decision. As in Broyles, the person with whom Pavic spoke must be regarded as an agent of the State. The meeting was not directly set up by the police but Clancy spoke with Pavic at the request of the police who equipped him with a recording device. If Broyles is applied, the next question is whether the admissions by Pavic were elicited by Clancy or were made in the course of a conversation. Put another way, was there an interrogation by Clancy? Pavic argued that he was misled by Clancy into making the admissions he did. The trial judge approached the exercise of his discretion on that footing and said: "Whilst the role of the accused in the killing was volunteered by him to Clancy in a somewhat limited fashion, it cannot, in my view, be said to be the result of, or inextricably linked to, the expressed fear of Clancy that he may be charged with an offence." In all the circumstances there is no sufficient reason to interfere with the trial judge's refusal to exclude the evidence of the conversation. This appeal should also be dismissed. (pars 87-88, 100-103) 44 In R v Mallah [2005] NSWSC 317 Wood CJ at CL, observed that: A particular concern exists in relation to post arrest trickery or subterfuge that is designed to derogate from the fundamental right of silence, and from the privilege against self-incrimination. Somewhat different considerations apply, in my view, in relation to covert investigations occurring before arrest, and which are an almost inevitable feature of the kind of controlled operations which are now permitted by statute, in response to the decision in Ridgeway v The Queen (1995) 184 CLR 19.

Necessarily those operations impinge on the private rights of an accused, yet a balance is maintained by the careful regime for their approval, for their implementation and for their review, which is reflected in the legislation. Almost inevitably such operations involve a measure of duplicity, that allows the accused to say and do things, in the presence of the undercover operative, which would not have occurred had he known of that operative's true identity and purpose. (pars 114-115) 45 Although his Honour's remarks were made in a slightly different context, they are still apposite to the present case.

The application 46 Two preliminary matters can be dealt with immediately. First, counsel for the applicant readily conceded that the sole basis upon which the first conversation could be excluded was pursuant to s 137. That section is in the following terms: In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 47 In R v Em (supra) Howie J observed: Section 137 is only engaged where the probative value of the evidence is outweighed by its unfairly prejudicial effect. Unfair prejudice under the section arises where there exists the probability that the jury might misuse the evidence in some way other than for the purpose for which it was placed before them R v BD (1997) 94 A Crim R 131 at 139; R v Serratore (1999) 48 NSWLR 101 at [31] Papakosmas v R (1999) 196 CLR 297 at [91]-[93]. If the evidence is relevant and if there is no likelihood of the jury misusing the evidence in some way, then its probative value, or its lack of probative value, is a matter for the jury. I accept that the section also applies where the jury may give more weight to a particular piece of the evidence than it deserves: R v Yates [2002] NSWCCA 520 at [252]. But that consideration is not based simply upon the assessment of the probative value of the evidence. There must be some prejudice emanating from the evidence that will be likely to cause the jury to over-react to it in an illogical or irrational manner: Papakosmas at [92] or to rely upon it on a basis that was logically unconnected to the issues in the case: R v Taylor [2003] NSWCCA 194 at [93]. In exercising the power contained in the section, the trial judge should have regard to what warnings or directions might be given to the jury to ensure that such prejudice does not arise. (pars 120-1) 48 It was conceded that there was nothing about that first conversation which could rise to any unfairness in the relevant sense. During the course of it, the applicant makes an observation which the Crown may be able to rely upon as evidence of flight. There is also, I am informed, other evidence upon that topic. In those circumstances, it is submitted that the evidence has no probative value. That is not, in my view, a sufficient basis to attract the provisions of s 137. But more importantly no real endeavour was made to identify how the evidence could be misused by the jury. Accordingly, I reject this aspect of the applicant's submissions. 49 Secondly, counsel for the applicant acknowledged that although ss 90 and 138 of the Evidence Act are directed to different issues, precisely the same arguments were relied upon in the present case in respect of each of those sections. Accordingly, it was accepted that should the argument in respect of s 90 not find favour, then no separate consideration was required for the purposes of s 138. 50 Counsel for the applicant then made reference to the following features of the case in support of his contention that the second phone call ought to be excluded. 51 First, the police "used the young wife of the accused as a police agent to interrogate the accused in order to obtain information". 52 Secondly, Ms Smith terminated the first call by falsely claiming that she had run out of money. 53 Thirdly, Ms Smith, acting at the behest of the police, deliberately picked an argument with the applicant in order to get him angry intending thereby to elicit responses from him that he would not otherwise have provided. 54 Fourthly, the form of questioning, consisting as it did of leading questions and argumentative responses, were not only inappropriate but would not have been permitted if asked of him by a police officer. 55 Fifthly, Ms Smith was neither impartial nor independent when she made her inquiries of the applicant. Furthermore she had already made up her mind as to what had occurred and was determined to obtain material from the applicant which would lead to his conviction. 56 Sixthly, should evidence of the present kind not be excluded then police would be encouraged to "attempt to trick a confession via an agent or operative out of an accused". This would be contrary to public policy as it would subvert the accused person's right to remain silent. 57 Seventhly, as Ms Smith was not an actual eyewitness to the incident, a number of the propositions which she put to the applicant necessarily lacked any probative value. 58 Finally, as the applicant did not adopt the contents of the conversations when they were put to him by NSW police, it was unfair for the Crown to be able to rely upon them.

Conclusion 59 For the following reasons, I have decided that the application should be refused. 60 First, it may be accepted the applicant was a suspect at the time when he spoke to Ms Smith. However unlike the circumstances which prevailed in both Swaffield and Pavic, the applicant had not at any stage been interviewed by police. In both those cases it was regarded as material that the suspect had declined to be interviewed prior to speaking, in one case to an undercover police officer, and in the other to a friend. 61 Secondly, the reason why the applicant had not been interviewed by police prior to engaging in the calls is that he had left NSW and travelled to Queensland. By his own actions he had prevented the police from having any opportunity of speaking to him. Indeed one of the very purposes of the calls was to enable both police and Ms Smith to ascertain his whereabouts so that he could be spoken to. 62 Thirdly, it is not contended on the applicant's behalf that his utterances were not voluntary. Indeed it is apparent that prior to the impugned calls he had sent a message to his wife indicating that he wished to speak to her. Moreover he had actually spoken to her on more than one occasion prior to the conversations in question. As I have indicated, he also spoke to her on two subsequent occasions as well. There is no evidence before me that he was reluctant to speak to his wife on any of those occasions. 63 Fourthly, although it may be appropriate to regard Ms Smith as having been an "agent" of the police, that characterisation is not a completely accurate description of what she said and did particularly bearing in mind her reasons for wanting to speak to her husband. However, the evidence also reveals that Ms Smith had a significant degree of autonomy in how she conducted the conversations. She was not, for example, provided with a list of draft questions. Nor did she have a script or any specific instructions as to what questions she was to ask. Both she and the police wished to ascertain the applicant's whereabouts. Furthermore, Ms Smith wanted to ascertain for herself what it was that the applicant maintained had occurred that evening. That she wanted to do so is entirely understandable, given that the deceased and the other victims were members of her birth family, and that the other persons involved in the incident were her husband and members of his family. Ms Smith also entertained what appear to be legitimate concerns that her decision to marry the applicant may itself have caused or contributed to animosity between the two families. 64 Fifthly, when he was apprehended by Queensland police, the applicant chose not to exercise his right to remain silent. On the contrary, he displayed a considerable willingness to inform police of his version of events notwithstanding the preference of the arresting police to delay any interview until such time as police with knowledge of the matter, arrived from New South Wales. 65 Sixthly, it may be accepted that Ms Smith was anything but a detached observer. There were a number of instances in which she challenged the applicant's version of events in a most robust fashion. A number of other legitimate criticisms were, and could be made as to the manner in which she conducted herself. Nevertheless I do not accept the submission that her conduct impacted upon the applicant in such a fashion as to render his responses unfair in the relevant sense. I do not discern that his freedom to speak was in any sense impugned. Nor was his will overborne. In my view he freely chose to respond to the questions that were asked of him in the fashion in which he did. It was submitted by counsel that because some of his responses were given in the heat of the moment, that may have rendered them unreliable. Not only is there no evidence to that effect but, given all the circumstances, it appears to me that his responses are more likely than not to have been reliable. He was after all talking to his wife and, as I have said, he was anxious to speak to her. 66 Seventhly, the fact that the police would not have been able to adopt the same method of asking questions as Ms Smith did, it is not really to the point. Her circumstances cannot be equated with those of a police officer. Rules constrain the manner in which a police officer, as a "person in authority", is entitled to question a suspect particularly as there is an imbalance in their respective positions. Prima facie, the same considerations do not apply to questions asked of a person by their spouse. An unguarded incriminating statement to a relative or friend, is not, for that reason alone, to be regarded as inadmissible: see generally R v Frangulis [2006] NSWCCA 363. 67 Finally, the accused by his plea of guilty to manslaughter, has made admissions to certain elements of the Crown case. His plea was entered, I was informed, upon the basis that he was party to a joint criminal enterprise, the purpose of which was to assault the deceased but not to kill or inflict grievous bodily harm upon him. (His actions may also indicate that he acted in self-defence, albeit that his response was excessive, and that he was also acting under provocation at the relevant time). Be that as it may, it would appear that the applicant makes admissions in the impugned conversations, which are entirely consistent with his plea. He does not however make any admissions to the crime of murder. On the contrary, he specifically denies killing or intending to kill the deceased. 68 It will also be recalled that during the course of the impugned conversations, the applicant maintained that members of the Smith family had attacked him and others with a tomahawk and a meat cleaver. I was informed that a meat cleaver and a tomahawk were amongst the items which were found by the police near to where the body of the deceased was located. I was informed that DNA, including blood consistent with that of various members of the Smith family was located upon those weapons. That material, it would seem, is capable of providing some support for the version of events given by the applicant in the impugned conversations. 69 In all those circumstances, it is difficult to see what unfairness could flow to the applicant were the conversations to be admitted into evidence. Although it is of course unnecessary to go this far, it is quite possible that there is a forensic advantage to the applicant in having before the jury his version of events which was given during the course of conversations that he did not know were being recorded. 70 Furthermore, what is contained in the conversations is essentially no different to other versions of the events which the applicant has given. For example, he gives an account in his ERISP with Queensland police which is reasonably consistent with what he says in the impugned conversations. That is a further matter which tends to suggest that what he said in those conversations is not unreliable. 71 The matters to which I have just referred bear, in my view, not only upon the operation of s 90 but also ss 137 and 138 of the Act. 72 I indicated at the time when I ruled upon the admissibility of the evidence that I would hear argument upon any objection that may be raised concerning any part of the conversations themselves. 73 I was informed that in consequence of my ruling counsel have agreed to some editing of the second conversation. It is also agreed that I should give directions to the jury about the use of this material at a suitable time particularly given the form of some of the questions asked by Ms Smith.

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