R v Karakas

3 Mr Papas of counsel who appears with Ms O'Brien on behalf of the accused has submitted that the evidence should be excluded in the exercise of my discretion and urged me to do so because, he submitted, I should conclude that the confession made by the accused is inherently unreliable or, put another way, the confession is incapable of acceptance by as jury as reliable. Mr Rose SC, who appears with Ms Hassan for the Director of Public Prosecutions, resists that contention. Unlike other cases where similar issues have arisen, the accused did not give evidence on the voir dire.

4 It is first necessary to describe the circumstances surrounding the killing of Mr Engers before moving to consider the more recent covert police operation.

5 The killing of Mr Engers occurred almost 20 years ago on 15 December 1989. The Crown case against the accused is that he murdered the deceased at his home at 32 Kennington Park Drive Endeavour Hills. The deceased was then married to Suzanne Engers. Mr Engers had been an immigrant from Indonesia having come to Australia in 1966. He became an Australian citizen. He was first married in 1982 but the marriage ended in divorce in 1986.

6 After Mr Engers' first marriage broke down in 1986, he met Sukanya Darbtip ("Darbtip"). They began to live together and purchased the property in Endeavour Hills where Mr Engers met his death in December 1989. The deceased and Darbtip were joint proprietors of the property but apart from the sum borrowed by way of mortgage to buy it, the purchase was otherwise completed by the deceased contributing some $30,000 proceeds from the sale of a property he had previously owned. Despite problems in the relationship the couple went to Thailand and were "married" in a Thai marriage ceremony (which had no legal effect). While in Thailand, the deceased met the brother of Darbtip and his girlfriend. They later came to Australia and moved into the Endeavour Hills house with the deceased and Ms Darbtip. Problems which arose in the relationships resulted in all but the deceased leaving the house. However, a relationship developed between the deceased and Darbtip's brother's girlfriend and she returned and lived with the deceased. She later became known as Suzanne Engers.

7 The deceased and Suzanne Engers later had a child together and in September 1989 they went to Thailand and went through a Buddhist religious marriage ceremony. They returned to the property at Endeavour Hills and were later joined in the premises by Suzanne Engers' mother who was a witness to the shooting of the deceased.

8 In 1988, the deceased had consulted a solicitor to have Darbtip's name removed as a joint proprietor of the property. Proceedings to achieve that result were commenced in this Court at the end of 1988. There were apparently various interlocutory orders and Darbtip's non compliance with those orders resulted in an application to the Court that her defence in the action be struck out. That application was made in or about November 1989. The deceased was murdered, as I have earlier said, on 15 December 1989.

9 At the time of the deceased's death, Darbtip was in a relationship with the accused man, Necdet "Nick" Karakas. That relationship had apparently commenced about six months before the death of the deceased. At the Inquest into the death of the deceased, Darbtip and the accused both gave accounts of being in each other's company at the time the deceased met his death and not being in any way involved in it.

10 About one month after the death of the deceased, her name not having been removed from the title to the Endeavour Hills property, Darbtip made a survivorship application in relation to the property. However, the executor of the estate of the deceased also claimed an interest. The matter was settled as between them and half of the proceeds were paid to Ms Darbtip and half to the estate.

11 The initial investigation by the Homicide Squad revealed that the deceased had been fatally shot at about 7:30 am on Friday 15 December 1989. The evidence suggests that the deceased and his partner Suzanne left the Endeavour Hills house at about 7:10 am to take her to work and the deceased later returned to the premises. The mother of Suzanne Engers saw Mr Engers return to the home and open the garage roller door. That had to be done manually because the evidence of Suzanne Engers is that four or five weeks before the shooting, the remote control that opened the doors had ceased to work. The deceased then got back in his car and drove the car into a carport area. He stopped the vehicle and got out and very shortly after that he was shot. One witness who heard the shooting thought he heard five or six shots in rapid succession. The police observations, photographs and crime scene video show that the deceased had fallen to the ground next to his car in the carport area.

12 The firearms and tool mark examiner, Mr Glaser, went to the scene of the killing and was able to identify four fired .22 bullets and other lead fragments. The shots had damaged the roller door that was down, the deceased's vehicle and some had also passed into the house causing observable damage. Mr Papas submitted the number of shots fired would be as high as eight although that remains a matter in contention. Significantly, no cartridge cases were found at or around the scene of the shooting by investigators.

13 Dr Shelley Robertson conducted an autopsy on the body of the deceased shortly after his death. The cause of death was brain damage as the result of a gunshot wound to the head. There was an entry wound and no exit wound and metallic fragments were located. One larger fragment was in the brain. The deceased also had a gunshot wound to the back with both entry and exit wounds as well as a gunshot wound to the lower right leg.

14 There was publicity about the killing of the deceased which becomes relevant to the issue which I must determine about the confession made by the accused and whether, in the cause of making a false confession to gain concluded acceptance into a criminal gang, he used information already on the public record. In summary, the publicity at the time was to the following effect. Mr Engers was said to have been shot four times at close range as he got out of his car. The number of shots was also put as high as eight. He died from a bullet wound to the head. A white Holden Commodore or Ford was said to have been in the area just after 7:30 am on the day of the shooting. That car, it was said, may hold the key to the investigation. The killer was believed to have been armed with a long barrelled .22 rifle. The weapon had also been described as a small calibre pistol. A car was heard to be "speeding away" from the house at the time of the shooting.

15 There was also publicity, contrived as it was, at the time of the conversation between the accused and the covert police which is the subject of this ruling. A few days before the conversation occurred, there was publicity in the Melbourne "Herald Sun" that two "cold cases" were being re-opened because they were thought to be linked. In relation to the deceased in this matter, it was reported that he had been shot three times in his driveway on 15 December 1989.

16 In August 1992 the accused gave evidence in the Coroner's Inquest into the death of Mr Engers. He had made a police statement which began with a description of his relationship with Sukanya Darbtip. As to the period around the date of the killing of Mr Engers, he said in his statement that on Thursday evening 14 December 1989, he and Darbtip went out for dinner in Bridge Road Richmond, then to Chadstone and then back to her house in Brunswick where he stayed the night. The next morning 15 December 1989 he said he and Darbtip left and drove to his place in Parkdale so he could get fresh clothes and then drove to North Melbourne arriving at about 10:00 am. He described what they did for the rest of the day and it follows that he asserted that neither he nor Darbtip had any role in the killing of Mr Engers. Indeed he said that they saw a news report of the killing on the media that night while they were at a "Brashs" shop at the Highpoint shopping centre. The accused was cross-examined by the police officer assisting the Coroner about the movements he described in his statement and he was tested about that. In cross-examination it was put to the accused that he was not being frank about the events of the day and about his description of the reaction of he and his girlfriend to the news of the killing of her ex-husband. The cross-examination concluded with it being put to the accused that he knew "a bit more" than he was describing in his evidence.

17 The result of the investigation in the years following the killing of Mr Engers was that the police concluded they did not have sufficient evidence to charge anyone with the murder of the deceased.

18 Commencing in April 2008, the accused was lured into a number of scenarios where he thought he was being recruited to assist a significant and well-organised crime gang. The technique used in this case was based on a model which apparently originated in Canada. In this technique police posed as members of a crime gang and, with the accused, committed simulated crimes to persuade the accused person of their credibility and attract him to the idea of joining the gang on a more permanent basis. Truth, honesty and loyalty were constantly reinforced to the accused and he was told that lies would not be tolerated, particularly to the "boss" who was a "covert operative" and went under the name Gary Butcher. Lies and troubles with the police which might attract attention to other members of the gang would not be tolerated. Any problems could be "fixed" but only if the putative "member" of the gang was completely honest in stating his role in any crime he had committed with a full account of the details.

19 In this case eighteen separate scenarios were played out which involved the accused and which led him to believe that he was participating in offences such as blackmail, illegal payments of large sum of cash, dealing in firearms and cigarettes, money laundering, payments to corrupt police and judges, burglary and the importation by plane of a large amount of hashish. On those occasions, the accused saw large sums of money apparently being transacted and was paid several hundred dollars in cash on each occasion for his "assistance".

20 It is common ground that during these scenarios, the accused was also told that he could walk away at any stage. He was regularly told that the most important feature of the group was the trust, honesty and loyalty that existed. He was also informed that various members of the gang had had police "problems" but they could be fixed by the "boss" - Gary Butcher. He also came to know that, via corrupt police, checks were made on anyone joining the gang to make sure that they were not the subject of police attention that might compromise other members of the gang by drawing police interest toward them. During the scenarios the idea that the accused might be permitted to join the gang was canvassed but that would be subject to these "checks". In the case of the accused, he was told there was some kind of problem with his check. Throughout these scenarios the accused regularly expressed his desire to join the gang. On behalf of the accused, Mr Papas submitted[1]:

There are these three themes that we say run all the way through it. And indeed, you wouldn't be surprised by what I am about to tell you because it's in fact what you can discern from those other cases as well. The first theme is opportunities. The opportunity to have great rewards to be involved, the second theme is honesty, trust and loyalty. And the third theme is the ability to fix things.

Mr Rose SC did not take issue with that assertion - it is obviously correct.

21 On 22 June 2008 media reported that the police were close to a breakthrough in the Engers matter as well as another related matter. Prior to the conversation between the accused and Gary Butcher there were recorded conversations between the accused and "George", a covert operative posing as a "gang" member. In those conversations apropos of the problem with the "checking" procedure, the accused asserted he was not involved in the offences and stated that he was unwilling to tell Butcher about something he did not do. The importance of telling the truth is reinforced to him.

22 The nineteenth scenario was a meeting was held at the Crown Towers Hotel at Southbank on 26 June 2008. During this conversation the accused admitted that he killed the deceased, Mr Engers. I have viewed the video tape and listened carefully to what transpired. There were two camera angles and I have watched the video from both. In the second camera angle, the demeanour of the accused is more visible.

23 It is necessary to summarise the discussion in order to understand both the context and content of it. The conversation took place in a hotel room and was in several parts brought about by the accused being taken downstairs from the hotel room on several occasions while Gary Butcher "thinks" about things and makes phone calls. Other members of the "gang" with whom the accused has formed a friendly relationship are in the vicinity and there are conversations between them and the accused which are covertly recorded.

24 In the first session, the accused met with Butcher after 4:00 pm. Only the accused and Butcher were present. Butcher spent time explaining to the accused that he was impressed with what he had seen so far in the accused's participation with the "crew". Butcher said that he spent a lot of time making sure that he had checked things out properly. He then explained that he had a "copper down the road" who was corrupt and who had supplied Butcher with information over the years and was now providing information about the police investigation into the accused in relation to separate murder investigations. One of those investigations was this matter. Gary Butcher said he was going to offer the accused involvement in this criminal gang in all its aspects but there were some problems that had to be sorted out. Butcher told the accused that he (the accused) had the "heat" on him and that he was as hot as a "fuckin' chop". That, Butcher said, he could fix but he could only fix what he knew about and he had to be satisfied that he was being told the truth. There appeared to be two murders that they were seeking information about. One was the murder of Geoffrey Engers in December 1989 and the other was the murder of Orton and Wah in Fitzroy in 1992.

25 The accused asked to be allowed to speak during this introduction. He then made the first of several denials of any involvement in the killing of Engers or the other matter. Butcher persisted saying that his information was that the police were looking at the accused and whilst he, Butcher, did not care what the accused had done and so long as he knew the detail of what he had to fix, he could fix it. From that point until the end of the first phase of the conversation, the accused continued to protest that he was not involved.

26 The position the accused adopted was this. He had been going out with a girl (Darbtip) and her partner "got murdered". He had only been going out with her for six months. He was interviewed and that was the end of it. He also explained that he gave evidence in the Coronial Inquest. He then explained that, as to the other murder, a girl that he had been seeing was also murdered a couple of years later in Fitzroy. He went on to explain that he was "busted" for selling some "ice" and he thought he would go to gaol for that.

27 Butcher then outlined to the accused that he thought the accused had been doing good work for him but that his contact in the police force tells him that the accused is "the man". He told the accused that his information was that the police had been looking at him for a long time. Butcher told the accused that he could make it go away but "a line in the sand" had to be drawn that day. Butcher said he had to know what was there so he could tie up loose ends and fix it up for good. The accused said he was telling the truth about his lack of involvement and that there was no evidence.

28 At that point the car used by the offender in the murder of Engers was raised. Butcher said "...it was your car" and that's what the police were telling him. He then said "...a white Commodore or somethin'". The accused said "Yeah, that was - yeah". Butcher then put to him that he had a .22 firearm to which the accused said that he never had a .22. Butcher then said, "You had access to one. Come on Nick". Butcher then outlined again the benefits of the accused being involved in the operation and the accused continued to express his enthusiasm to be involved and also continued his denials of any involvement in the murder of Engers. The accused said on several occasions that what he was saying was the truth and that there was no evidence, demonstrating his guilt. He said he never met the deceased and had no reason to do anything to him. Butcher then explained that he understood why the accused was "giving it a fly" and telling him lies, but he, Butcher did not accept what he was being told by the accused. The accused continued his denials and Butcher continued to postulate that the police must have had reasons for investigating.

29 As the conversation developed, the accused then told Butcher that he had gone to a solicitor's office with the girl in relation to the proceeds from a property and he agreed he knew she got $18,000 for her half of the property. Butcher again mentioned the car that had been seen at the crime scene but the accused said he had never been asked about a car. The accused said he never owned a .22 but he had a pump action shotgun.

30 Butcher then informed the accused that as much as he liked the work that the accused had been doing, he had to take the word of the member of the police force who was giving him the information in preference to the explanation of the accused and that if he, Butcher could not "tidy this up" then the accused could not "come on board". The first session ended shortly afterwards with exhortations from the accused that Butcher take him on and that he would never let him down.

31 The second session involved Butcher repeating what he had said earlier. The accused also repeated that what he had said earlier was true. He said he knew the girl was trying to make her own arrangements (I assume he meant for the killing of Engers) but he said he had nothing to do with it. He also repeated his denial of any involvement in the other murder that he was told was under investigation. He said, as he had previously, that he was not going to accept something he had not done and Butcher said he did not want him to. He wanted the truth. There was brief reference to DNA technology and the accused said he was happy to have a DNA test.

32 Butcher asked him what he would say when the police proved that the Holden Commodore went back to the house of the deceased a couple of weeks after the killing of Engers. The accused said he did not have a Commodore and he was driving a "hire car" from his company. He said it was not a white Commodore. Butcher persisted and the accused ultimately said he could remember what car he was driving except they were VL model Commodores.

33 A short time later, the accused said to Butcher:

Well, what do you want me to say to convince you to keep me on board? Tell me what you want me to say? 'Cause I'd love to be part of the team. Tell me, what do you want me to say? Please cause I really, I really want to be part of the team, I really want to.[2]

34 Butcher responded by saying that he only wanted the truth and that he did not want him to come up with "some bullshit just to make me fucking happy". The turning point then arrived with the accused responding to a long monologue from Butcher. That monologue had the following relevant features. First Butcher only wanted the truth and if the accused was telling the truth about his lack of involvement in these matters then Butcher was making a big mistake but it was a mistake he was willing to wear. Second, Butcher had standards he was not willing to lower. Third he (Butcher) paid good money to make sure he got the right information and he had to take what he was being told about the accused as being the "right facts". Fourth, he couldn't fix something without knowing exactly what to fix. The accused then said:

Just okay, if I was, okay look, sometime when people make mistakes and they do wrong things, now, if, if I told you yes, okay fine, okay how's it gonna get fixed or, you know, what am I guaranteed?[3]

35 The accused had been required to make a decision at that moment. It was clear to him that Butcher was not accepting his denials. It was also clear that the accused was very keen to join the gang and wanted the benefits. He also must have known that if he were to change his position and provide details of his involvement in one or other of the murders which had been put to him, he was making those disclosures to a person who appeared to have direct access to corrupt members of the police force and who would know if what he was telling him was not the truth. He had no opportunity to assemble information to refresh his memory on the detail of what had occurred in December 1989.

36 He then said that "of course" he had an involvement but only in the Engers matter. He said he was scared and did not want to ruin his life. He promised he was not involved in the other matter. He apologised for denying his involvement earlier but explained that sometimes "you scared for your life". He said there were no loose ends and everything had been disposed of. Butcher then said that he wanted to go through it "step by step" and without hesitation, the accused proceeded to do so in answer to the questions he was asked.

37 The account then given by the accused was as follows. He said he committed the killing on his own. He said that what he was now saying was truthful and was just between he and Butcher. The accused said he was putting his life with Butcher and he wanted to be "strong" with what he said. He said the only other person who knew was the former girlfriend (Darbtip). The accused said she asked him to do it. The accused said the car he used was a hire car but he could not be sure of the colour. In answer to leading questions he said he thought it was white but he could not be one hundred per cent sure of that. He said his girlfriend got someone else to hire the car or it was hired in a friend's name although he thought it would have been in her name. The accused said he went and checked the plan including when the deceased was in his premises and out. He said that he observed that the deceased would go out in the morning, drop his partner at work and then return home to get ready to go to school to teach. This, it should be noted, is inconsistent with the statement of Suzanne Engers who said in her original statement that his return to home after dropping her off at work was unusual and occasioned by the need to take their daughter to a doctor's appointment.

38 The accused also said he used his "company car" for a few days to conduct his surveillance on the home of the deceased. He said the shooting occurred at between 7:00 and 8:30 am. He drove the rental car to the scene and then when the deceased returned to his premises, the accused pulled up in front of the driveway. He said he then "done the job". He said he used a sawn-off .22 which he bought from someone in a pub. He said he had bought about 12 months earlier and used it for hunting. He said he bought it as a long rifle and cut it down himself. The man from whom he bought the gun died some time later from a heroin overdose.

39 The accused said he fired the shots from inside his car and fired between two and four shots at the deceased. He said he could not remember exactly. He said he shot the deceased as the deceased was pulling the roller door up. On the objective evidence that is not correct. The deceased got out of the car, raised the door manually, got back in the car and drove into the carport area and then was shot.

40 The accused described firing the shots at the deceased through the passenger side window of the car he was in. Significantly, he said that he was using a firearm with the a semi automatic mechanism and a magazine and that the cartridge cases which ejected were all in the car he was in. That is consistent with the evidence of the crime scene examiners. No cartridge cases were found at the scene. He described disposing of the cartridge cases in different places and chopping the gun into pieces and disposing of it in various "dump masters". Her said he cut it into four pieces with a hacksaw. He explained that there would not be any ability to make DNA tests because he was in a rental car and every time rental cars go back to the dealer "they get cleaned up all the time". Asked whether he was sure that he had got rid of the shell casings and that people sometimes forget the accused said, "No, I been in the Army". As to the hire car, the accused said it was hired by his girlfriend. It was hired for a long weekend and then returned by his girlfriend.

41 The evidence of other witnesses in the case suggests that the accused and his girlfriend may have returned to the premises some weeks later in a white coloured car. The accused told Butcher that he did go back to the house but it was in his girlfriend's Holden Camira. The accused said that because the house was being sold she had to go back and clean things out of it, including furniture and items of that kind.

42 The accused again described the shooting in the same terms as he had earlier. He said he thought a few shots might have hit the roller door. The accused acknowledged that fragments would have been found but he said the bullets were all cleaned before he put them in the magazine of the gun he used. He said he cleaned them again before he disposed of them in a variety of rubbish bins. He again referred to his army training.

43 There was then a further discussion initiated by Butcher about the importance of the accused telling the truth and he assured Butcher that what he was saying was the truth. He then referred to wearing a wig to disguise himself. He said it was long haired and he "chopped it up" and got rid of it. He also said he had overalls on and he disposed of them also. There are witnesses who saw the white vehicle leaving the scene and give some description of the driver. Ms Corinne Finette describes a person with a receding hair line. She prepared an "identikit" photograph which depicts some degree of receding in the hair line but also depicts the rest of the hair as being long down the back. Another witness, Mr Konpa, who described the vehicle being driven very fast said he thought the driver had black hair but could not be sure. Yet another witness, Mr Vainikka, saw the vehicle - a white Holden Commodore - and said the driver had black shoulder length hair and he could not tell whether the driver was a man or woman. The accused later told Butcher that he was wearing gloves and he later said he had a cap on.

44 The accused told Butcher that he never told anyone else about this matter and that, apart from his girlfriend, Butcher was the only one who knew about it. He then said:

What I'm just telling you is the truth. Of course, of course it's scary. You can't just open your - you know, it's your life on the line here. And also at the same time I look at it; when you weight it it's an opportunity for me to work. It's a good opportunity, and I don't want to really sort of miss out on that, you know. And that's why, you know, I'm putting my life in my hands. And at the same time I'll cop a bullet for - to protect anyone that's - who I'm working with, you know.

45 The discussion returned to the hire car and the accused told Butcher that in order to cover up the fact that the car was hired he put a radio station sticker over the hire company sticker as well as putting stickers on the number plates.

46 At the end of this phase of the discussion the accused asked Butcher for some money so that he could get some food for his girlfriend's birthday and entertain his parents. Later, $300.00 was handed over by Gary Butcher to the accused. This is consistent with a text message sent to "George" to which I was referred in which the accused expressed his need for money and his consequent desperation. The conversation with Butcher ended and the accused was taken downstairs for a drink on the pretext that Butcher had phone calls to make.

47 The last conversation occurred half an hour later. There is a further discussion about the details of the shooting. Amongst those is a question about the manner in which he drove away after the shooting. There is a witness to the driving who describes a white vehicle with no registration number driving very fast in the vicinity at the time. The accused said he did not "plant the foot" as it was put to him and said he just took it "easy". The accused said he drilled the barrel out of the gun so if it was found it could not be matched to anything.

48 During this last conversation there is further discussion about the gun used in the crime and where it came from. It is convenient to now consider the evidence about that. During these discussions with Butcher, the accused initially denied his involvement and denied having a .22 firearm. He had said he had a pump action shotgun. Once he was confessing his role and was asked what kind of gun he used, he said it was a sawn-off .22 rifle. He said he bought the firearm as a long rifle and cut it down for the purpose of committing this offence. He said the person he bought the gun from ("the gun dealer") died from a heroin overdose and therefore he could not be identified in that connection. That person had, in turn, obtained the gun from someone else. The accused said he gave the gun dealer $150.00 and the gun dealer picked it up for the accused from the third party. The gun had a magazine and was a semi-automatic. The accused said the person who died was known to him as "Sash". Mr Papas accepted that there was a person, known as "Zaffa", who was a friend of the accused and who died from a heroin overdose in a train station toilet. He submitted that rather than be supportive of the reliability of the confession it tends the other way because it demonstrates the accused chose to identify someone who is dead and therefore cannot be checked beyond what the accused has said.

49 Kadir Varova is a witness and in his statement described himself as an acquaintance of the accused. He served a sentence of imprisonment for unrelated offences and was released on 19 October 1989. Some time after his release he was approached by the accused in Mentone. During the conversation the accused is alleged to have asked him to get the accused a handgun. During a later conversation, the accused is alleged to have said that he wanted the gun to "put someone off". He then drove with the accused to Endeavour Hills where it is claimed that he showed Varova a house where a man was to be shot by him. The accused is alleged to have explained that if the man was shot then a woman would get the house. Varova never supplied the gun and was never going to according to his statement. After the killing of Mr Engers, Varova claimed to have seen the accused again and, referring to the publicity about the case said, "You did it didn't you man?". The accused is said to have replied that he could not do it and that someone else had to finish it up. In the course of his submissions, Mr Papas on behalf of the accused refers to this as being inconsistent with the confession said to have been made to Butcher. However, it might also be said that the evidence of Varova is consistent with other aspects of what the accused said to Butcher, particularly when he asserts on several occasions that he has told no-one else about the matter since it occurred because it was too risky. He later said that Butcher was the only one and that was why he wanted to speak to him alone.

50 As the conversation ended, the accused informed Butcher that he and Darbtip knew not to discuss the matter either in a car or at home and only did so in open areas. He reiterated his confidence about the lack of any basis for DNA evidence. He said he was careful with his surveillance on the house of the deceased and was always driving a different car.

51 As Butcher stated in his preamble at the commencement of this conversation before the accused was in the room, he also wished to discuss the murders of Mary-Lou Orton and Kim Wah with the accused. They apparently occurred in Fitzroy in March 1992. There was far less discussion about these matters. When the matter was first raised the accused said he nothing at all to do with those killings. He said he had never been questioned and that he went to the police station and made a statement about it. The girl had been his girlfriend but he was not involved. Once the accused had given details of his role in the killing of Geoffrey Engers, he was again asked about "the one in Fitzroy". He said, "Honestly, I got nothing to do with it."

52 Not long after this conversation ended, the accused was arrested by police. He declined to answer questions in a record of interview.

The Competing Submissions About the Confession

53 In his written submissions, Mr Papas identifies a number of aspects of the situation of the accused, which included:

• the accused believed he had formed a strong friendship with covert operative George Pappas in which they could discuss anything;

• he was financially reliant on obtaining membership into the "criminal gang";

• his desire to join the "criminal gang" was fuelled by the belief that he would achieve great financial and personal rewards in addition to a generous salary;

• he believed the police were "working up a case against him" in relation to the murder of the deceased and that he was the primary suspect in the investigation; and

• he believed that the fictitious head of the "criminal gang", Butcher, had multiple connections with corrupt police officers and judicial officers so that he could "fix" any problem, including a murder investigation.

54 Those points beg the obvious question as to what necessarily follows from them. I do not accept that those matters necessarily tend to demonstrate that the confession made by the accused on 26 June 2008 was likely to be unreliable or untrue. Indeed the test I must apply is whether the confession is inherently unreliable. The first point simply illustrates the potential for candour on the part of the accused. The second point rather suggests that candour was required in order to alleviate his financial circumstances by obtaining membership in the "criminal gang". That similarly applies to the third point, and it is difficult to see, in the context of the fourth and fifth points, why a false confession would be likely in those circumstances.

55 In his oral submissions Mr Papas repeated the submission the so-called confession was obtained in circumstances which make it likely that the truth of the confession was adversely affected.[4] In essence Mr Papas submitted that his client became completely entranced with the idea of joining this so-called criminal gang led by Butcher and the benefits that would accrue from that membership that it can be inferred that the confession was false and done for the purpose of achieving that result. Mr Papas accepted the proposition that to exclude this confession on the basis for which he contends would be a "rare" outcome. But, he argued, the inherent unreliability of the confession justifies that course. In support of that submission, Mr Papas also argued that there was nothing in the confession that could not have been deduced from the public record or what he was told by police. I am not inclined to agree with that.

56 Dealing with the specific aspects of the confession on 26 June 2008, the first basis on which Mr Papas seeks to support that contention is by reference to information conveyed to his client by Butcher which he submitted might well have been adopted by his client in a false confession. There were two aspects - the car, a white Commodore - and the gun, a .22 firearm. Mr Papas submitted that such an approach was to be contrasted with what was done in other cases where this technique was used.

57 Certainly a white Commodore is mentioned early in the conversation before the confession commences. Later, and also prior to the confession commencing, he denies having a white Commodore. Once confessing his involvement, the white Commodore is again raised and he is describing the hire car, he said he thought it was white but he could not be one hundred per cent sure and never adopts the description "white Commodore" without qualification. So far as the firearm is concerned, Butcher certainly identifies a "twenty two" as the gun he is being told was used. The accused initially denies having such a firearm but then, when confessing, says he did use a "twenty two" but adds a piece of information that it was "sawn-off".

58 Mr Papas initially relied on what he described as the pressure on his client during this discussion with Butcher. He particularly relies on the passage to which I have already referred:

Well, what do you want me to say to convince you to keep me on board? Tell me what you want me to say? 'Cause I'd love to be part of the team. Tell me, what do you want me to say? Please cause I really, I really want to be part of the team, I really want to.[5]

59 Such an utterance Mr Papas submitted is demonstrative support for the proposition that his client who is a person who is willing to say anything to join the gang headed by Butcher. However, I consider there is a flaw in that argument as I raised with Mr Papas during argument. From carefully listening to and viewing the conversation, the accused knew he was talking to a person who was very well connected with "corrupt" police who were providing him with detailed information about the investigation into the accused. The accused clearly accepted the arguments put to him by Butcher that he must know the detail of the case in order to "make it go away forever". According to what he told the accused, Butcher had been given information about the car used, the firearm and for this information he was paying money. The relationship between Butcher and "Paul" - the "copper down the road" is longstanding and Butcher is unsure whether he has more on Butcher than Butcher has on him but they "understand each other". On any view, therefore, for the accused to take the decision to offer a detailed confession that he knows is false significantly imperilled his prospects of joining the gang he was so keen to be part of. Mr Papas responded to that by submitting that the result was a generalised confession. In support of that he referred to the accused's recollection of the number of shots fired as being between two and six whereas the reality is probably eight. As I put to him during argument, there might be more strength to the submission if the shooting had not occurred 19 years earlier.

60 With respect, I find the broader submission generally difficult to accept. However whether the confession is "generalised" or not, it is not inconsistent with the known facts and several of the submissions put to me as to explain why particular things were said and how they might have been known are really issues for a jury to consider. Inherent unreliability does not necessarily follow.

61 Mr Papas then relied on matters which he said were contained in his client's confession and which were inconsistent with the objective evidence and, in one case, obviously wrong. The first matter to which he referred in that context was the comparison between what his client is alleged to have confessed on the one hand with the statement of Mr Varova on the other. As I have summarised above in paragraph 49 I do not consider the inconsistency is as straightforward as Mr Papas submitted.

62 The next matter was the statements by the accused that he placed stickers on the number plates of the hire. Mr Papas pointed out that there was one witness who saw numbers on the number plate, though was unable to identify them all. The witness who saw the vehicle being driven at a fast rate of speed said the vehicle had no number plates at all. These are matters which do not, in my view, demonstrate the unreliability of what the accused said to the police. They are matters more appropriate for a jury to consider.

63 Mr Papas then referred to the description his client gives of where the shooting actually took place. That description is of him being shot as he was opening the roller door. The crime scene material suggests that cannot be right as Mr Papas suggests. The deceased was not shot as he was opening the roller door as the accused describes but after he had done so and driven the car into the carport area.

64 Mr Papas' argument therefore came to this. His client was a person in financial need of joining the crime gang he thought he was negotiating to join. He was very enamoured with the idea of it and saw the very substantial benefits. There was possibly a share of an $80,000 hashish importation which had been talked about. There was the prospect of a constant income and he had formed what he thought were good relationships with the people in the "gang". His situation was such that with the benefits and the pressure that was being applied he is likely to have made a decision to give a confession to Butcher which was inherently unreliable and depended on the information he had gleaned from Butcher in the earlier part of the conversation, information he remembered from the publicity concerning the killing and he then gave generalised descriptions about what he did which were not specific and not verifiable. As a result he submitted I should conclude that the confession was inherently unreliable and not permit it to be given in evidence.

65 Mr Rose SC for the Director of Public Prosecutions, submitted to the contrary. He placed significant reliance on the statements by the accused that the cartridge cases ejected from his firearm during the shooting all ejected into the car he was in and that none could have been found at the crime scene. That, he put, was both true and not the subject of any publicity at any stage. It is, effectively, only something the accused could have known. Mr Papas had quite properly accepted that this was the "high water mark" of the Crown argument and a weakness in his own submissions.

66 Mr Rose also relied on the fact that the information was volunteered by the accused that the car was hired. During the conversation the accused ventured that it might have been hired from "Budget" and, so it was submitted, he was not to know whether "Budget" would still have records to verify or contradict what he said.

67 As to the time of the shooting, Mr Rose submitted that if his source of knowledge was in fact the newspapers then he would regurgitate the time publicised - 7:30 am - rather than say that it occurred between 7:00 am and 8:30 am. To that can be added that in the publicity about the matter on 24 June 2008 concerning the revival of the investigation, "The Age" report of that day indicated that according to police the shooting occurred at 7:15 am on 15 December 1989 and yet that information was not repeated in terms by the accused in his conversation with Butcher.

68 Mr Rose also relied on the statement by the accused that he was wearing a wig which, he argues, is consistent with descriptions given by those who can see the person the car driving away. In general Mr Rose argued that with a couple of exceptions the account given by the accused is consistent with what the police knew from the objective evidence.

69 In relation to the deceased's location when the shots were fired, as I followed it, Mr Rose conceded that the accused account of shooting the deceased as he opened the roller door is inaccurate. However in that same context he submitted that the fact that the accused described the deceased opening the door manually rather than with a remote control (which is what occurred as described in paragraph 11 above) was not something he could have known unless he was there as it was not the subject of any description on the public record. A roller door was described as being damage by the shots and the deceased was described as being "gunned down" in his driveway but it does not seem to have been stated that he prior to being shot he had at first manually opened the roller door. Mr Papas seemed to suggest, and I mean no disrespect his argument in putting it this way, that that was really just a lucky guess on the part of his client in giving that description.

70 The methodology employed by police in this case has been the subject of substantial analysis by the Court of Appeal of this Court and by the High Court of Australia.

71 Given that the principles are settled, as I followed the argument, one of the purposes of referring to authority was to highlight distinctions between cases where a confession of this kind was not excluded on the basis for which Mr Papas contends as opposed to the facts of this case. In particular, Mr Papas placed considerable reliance on the fact as he described it that unlike this case, in other cases the target of the operation was, himself, talking about having a problem with which he needed help. On the other hand, the accused in this case "continually reiterates" that he did not do anything. There are, I think, limits to the utility of the comparative exercise but I have considered the facts of other cases as informing the analysis undertaken in this case.

72 In R v Tofilau[6], Osborn J as the trial judge was similarly confronted with an application for evidence of this kind to be excluded on a number of bases which included, inter alia, the issue of the reliability of the confession made in that case and the exercise of the unfairness discretion. In dealing with that issue, Osborn J concluded[7]:

There can, however, be no serious argument that the confessional statements in the present case should be excluded as unreliable. First, the nature of the inducements offered to the accused and the logic of the scenarios with which he was confronted both expressly and implicitly encouraged him to tell the truth. He was at no stage invited or encouraged to confess to murder as such. In this regard the current case is in stark contrast to some Canadian cases where the accused has been invited to confess to murder effectively as a "badge of honour".

In addition the confessional statements are replete with circumstantial references which strongly suggest that they are or could fairly be regarded by a jury as reliable. It is inappropriate for me to catalogue these matters at this stage of the hearing.

73 I have reached a similar conclusion in this case. The first part of Osborn J's observations is indisputably true in this case and I do consider the confessional statement of the accused does contain circumstantial references which suggest that a jury could regard them as reliable.

74 In the course of his submissions, Mr Papas drew my attention to an aspect of what was disclosed to the Court of Appeal in R v Tofilau (No 2)[8] where the following appears:

During his evidence, Detective Senior Sergeant Mark Caulfield, who was in charge of the team, indicated that he was provided with only basic information about the circumstances surrounding the death of Ms Romeo and very little was given to the covert operatives. This course was adopted to prevent any leading questions being asked by operatives that might affect the reliability of any admissions they obtained and to ensure that they did not inadvertently disclose to the applicant that they knew anything about the matter. The operatives were required to report everything that they were told without knowing whether any statement made by the applicant was relevant or of value.

75 This was drawn to my attention for the purpose of highlighting that in this case Butcher did disclose information in a leading way to the accused, particularly as to the vehicle and the firearm as I have outlined above. However, in this case, to the extent that information was identified by Butcher concerning the car and the firearm, I am not persuaded that those matters have affected the confession's reliability. Part of the reason for that conclusion is that those matters are used here to demonstrate that Butcher has access to detailed information and therefore to persuade the accused that what he says about the matter needs to be true.

76 Later in the judgment of Vincent JA in Tofilau, dealing with the issue of reliability, his Honour said[9]:

Finally, there was certainly no justification for the exclusion of the evidence in the exercise of discretion by reason of its inherent unreliability. As I have indicated earlier, there could well be cases in which the tactics adopted to secure admissions of themselves could be regarded as so calculated to produce inherently unreliable evidence or in which the particular vulnerabilities of the individual may be such that a trial judge could reasonably form the view that the evidence should be withdrawn from the jury because it would be unjust to act upon it. In my opinion, the evidence in the present case presents no such difficulties. There was, as I would suggest in the summary of evidence and outline of arguments set out earlier, much to support the confessional statements. Whether or not they were accepted as truthful and reliable was finally for the jury to decide.

However it must not be forgotten that the admission of out of court statements against penal interest by an accused person is premised on the notion that, in general, persons do not inculpate themselves with respect to criminal conduct unless they are guilty. Whilst this kind of evidence must always be approached with great care as (inter alia) the premise itself does not always hold true, the issue of reliability can be seen to present particular problems when the individual perceives that it is both safe and beneficial to make the statement.

77 Mr Papas placed particular reliance on the last observation of Vincent JA. His client might be regarded by me as "perceiving" that it was safe and beneficial to make a statement about his involvement in this matter which was false. I am not persuaded by any means that that necessarily follows. The requests, indeed requirements, that he tell the truth were constant and made by a person who appeared to have the capacity to check that what he was being told was the truth. Further the confession made is largely consistent with what was known about the shooting of Mr Engers. Arguably, the confession carried new information not previously known to police as well as possibly two aspects - the cartridge cases and the opening of the roller door - which only the offender would have known.

78 In Tofilau v R[10] Gleeson CJ noted[11] that the rules in relation to voluntariness involved a concern for the unreliability of statements made under coercion. However:

It is, however, of no assistance to the appellants in this case, because the deception practised upon them was not such as was likely to elicit a false confession.

79 In the judgment of Gummow and Hayne JJ, dealing with how the issue of reliability should be approached, there Honours posed the question[12]:

Do the circumstances in which the evidence was obtained fall into the category of cases which the law classifies as so likely to produce unreliable evidence that the evidence should be excluded from consideration by the tribunal of fact? In order to make good the propositions just stated, it is necessary to consider what was said in McDermott.

In the present case there was no reason to doubt the reliability of what the appellant told the "boss". He repeated essentially the same account of events surrounding the death of Bonnie Clarke when he was interviewed formally by the Homicide Squad officers very soon after he had said what he did to the "boss". But leaving this consideration to one side, and confining attention wholly to what was said to the covert police operatives, it was open to the trial judge to conclude, as he did, that the circumstances were not such as to warrant excluding the confession from consideration by the jury. The trial judge considered the significance to be attached to the appellant's participation in the various criminal scenarios that were played out. He concluded that the evidence of those activities did not present forensic difficulties of a kind that required exclusion of the evidence. That conclusion was open.

It was not shown that the trial judge acted upon any wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts or failed to take into account some material consideration. It was not shown that the exercise of the discretion miscarried.

80 As I followed Mr Papas' argument, the reason he urged that I should take a course different from that taken by Osborn J in Tofilau and approved by the Court of Appeal and High Court, is that unlike that case, here the accused was being provided with information by the crime boss which gave him the tools to make a confession which is a fortiori inherently unreliable. Mr Papas also seemed to suggest that a difference between the facts in Tofilau and this case was that in Tofilau the accused "proffered" problems they had with police whereas, here, the accused had to have his history effectively raised with him. In fact, in Tofilau, the accused himself mentioned that he had trouble with the police in relation to the death of a girl but that that trouble was over. As here, for the purpose of influencing the accused the police then took actions to increase the apprehension that the accused was the central target of investigation. I do not see a significant distinction between that case and this.

81 Mr Papas paid particular attention to the case of R v Clarke[13] which was one of the cases later reviewed by the High Court in Tofilau. In Clarke, the accused had been charged with the murder of a child, Bonnie Clarke, in December 1982. The child was six years of age when she was murdered. Some twenty years after the murder the police commenced an operation in which they played out a number of scenarios. Those involved staged activities involving blackmail, assault, burglary and "engagement" with corrupt officials. Ultimately the accused met with "the boss" of the gang and was told that person could fix anything. In discussions with another covert operative "T" the accused had said on numerous occasions that he had not committed the crime. Ultimately there was a meeting with "M" - the boss - and the result of the conversation was a confession that he had killed the child. He was arrested a short time later and charged with the murder. In a later record of interview he agreed that he had sexually interfered with the child and stabbed her.

82 The accused did not give evidence on the trial but he did on the voir dire and his evidence in chief was that although he made the admissions now relied upon they were fabricated because unless he made them he stood to lose the financial benefits of being in the gang which he was very anxious to obtain. In his evidence, while being cross-examined, the accused said that he felt threatened by the police and thought there were consequences for him which were adverse if he did not make the false confession.

83 As in the case before me, the particular argument had three components. First, the statements were made in circumstances that rendered them inherently unreliable and calculated to elicit an untrue admission of guilt. Second, the circumstances in which the statements were made must inevitably have caused the applicant to suffer forensic disadvantage as they involved the implication that he had serious criminal propensities. Third, the admission of the evidence was both unfair and contrary to public policy.

84 The trial judge in that case had dealt with the issue which confronts me. There the accused had given evidence and sworn that his confession was false. In his ruling his Honour said[14]:

In the end result, it does not seem to me that it is either appropriate or necessary for me to make findings as to the truth or otherwise of the explanations of the accused for the detail in which he stated his admissions to 'M' and to Iddles and Day. The question is whether the account given is such that the jury would be entitled to consider, on the evidence before it, that it is reliable.

I have looked carefully at and listened to the video-tape of both the discussion had by the accused with 'M' and the admissions made to Iddles and Day. Whilst it is true, as [counsel for the accused] submits, that there is no corroboration and that several matters raised by the accused are inconsistent with crime scene findings, in the end result I am satisfied that the admissions are not inherently unreliable and that it would be open in all the circumstances for a jury to consider that the manner in which the admissions are shown to have been made on the video-tapes is such that they are reliable.

In my view, in the absence of a conclusion by me that the admissions are inherently unreliable, it is appropriate that the jury consider what weight should be given to the admissions rather than having me make a decision to exclude the evidence because of the possibility of unreliability. Accordingly, it does not appear to me to be appropriate to exclude the admissions made on this basis."

85 There were, as there are here, some inconsistencies between what the accused said in his confession and what the objective evidence demonstrated. One such difference in that case was whether the deceased girl was wearing pyjamas or not. The accused had said she was but the evidence indicated that the child's body had been stripped and the pyjamas were found at the back of her bed. Vincent JA, having analysed the evidence as a member of the Court of Appeal agreed with the conclusion reached by the trial judge.

86 A similar situation arose for the consideration of Coldrey J as the trial judge in R v Marks[15]. At the outset I should note that Mr Papas sought to distinguish Marks primarily on the basis that there the accused gave details of the killing of the victim and the taking of some jewellery. The point sought to be made as I followed it was that the confession was more detailed and specific than in this case. In dealing with an argument similar to the issue raised in this case Coldrey J said:

It was argued by the defence that all of this information was effectively in the public arena and hence could not be used to demonstrate reliability. Moreover, it was asserted that the confessional material contained inaccuracies such as the description and position of the covering placed over the deceased; the description of the hammer; and the accused's account of the number of blows struck.

As to the latter, these constitute forensic matters explorable before the jury. As to the former, the removal of the hammer, the use of the hammer as a murder weapon, the inflicting of blows with the flat end of it and the raising of the deceased's hands after the first blow are matters which, in my view, could only have been known to the killer. Although lacking independent confirmatory evidence similar observations may be made about the accused's statements to Gary Butcher about his purchase of the gloves; his collecting and disposing of the utensils used in eating the evening meal; and the cutting up of his clothing. In the same category is the subsequent assertion of the accused to Rick Baxter that he "clubbed" the deceased while she was laughing.

The issue of the use of the hammer is of vital importance in assessing the reliability of the accused's statement. Consequently I have dealt with it in considerable detail earlier in these reasons.

It follows from this analysis that a jury could undoubtedly regard the accused's confessional utterances as reliable.

In the Court of Appeal[16], Vincent JA dealt with the manner in which a trial judge should approach the issue of reliability and said:

First, accepting for the purposes of the exercise in which he was then engaged, that in exceptional cases a judge should exclude a confessional statement "upon affirmative satisfaction that the admissions were inherently unreliable", his Honour expressed reservations, which I share, about the recognition of inherent unreliability as a separate basis for discretionary exclusion. I consider that the better view is that a trial judge is not entitled to exclude evidence simply on the ground that the judge perceives it to be inherently unreliable in the circumstances. As the courts have made clear on many occasions, whilst a concern about the potential unreliability of statements that cannot be seen to have been made in the exercise of a fair choice provides a major reason for the development of the principles with respect to voluntariness and the fairness discretion, the circumstances and extent of the trial judge's involvement with the issue of reliability are quite confined. The reliability or otherwise of a voluntarily made and otherwise admissible self inculpatory statement is almost invariably for the jury to decide.

Of course, the possible unreliability of the inculpatory statement is a consideration of great significance in circumstances where its admission could be seen as possibly capable of compromising the fairness of the trial. What I think is required is that the judge apply the test laid down in the authorities concerning the unfairness discretion such as Swaffield where it was said:

"The term 'unfairness' lacks precision; it involves an evaluation of circumstances. But one thing is clear:

'[T]he question is not whether the police have acted fairly; the question is whether it would be unfair to the accused to use his statement against him... Unfairness, in this sense, is concerned with the accused's right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement.'

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." (Emphasis added).

87 I have viewed the recording of the recording of the conversation between Gary Butcher and the accused on several occasions. I have a transcript of the conversation which I used to follow the audio recording. The accused appeared to me to more than adequately cope with the stress he was under. Broadly what he told Butcher is consistent with what the police knew about the killing of Geoffrey Engers. In addition, as I have endeavoured to outline in the summary of the conversation and discussion of the competing submissions, the accused has added new information which was not known to the police including:

• the vehicle used in the offence being a hire car,

• the firearm used was a .22 rifle which had been "sawn-off",

• that he placed stickers on the vehicle to obscure the identity of the vehicle.

88 I also consider that the information the accused provided both as to what became of the cartridge cases from the shots fired at the deceased and the need for the accused to open the roller door to his carport manually are both capable of being regarded as information which could only be known the person shooting the deceased.

89 I am also of the view that the accused's willingness to admit his role in the killing of Geoffrey Engers but to continue to deny his role in the Orton and Wah murders is a feature of the conversation that, whilst arguable, tends in favour of the reliability of the confession concerning Engers. On one view, were the accused so entranced by the boss Gary Butcher, one might expect that he would agree to almost anything, however, the filter on such an approach is that he had been told over and over again that it was the truth that was wanted and that what he said could be, in effect, checked. In relation to the Orton and Wah matter the accused was consistent about his lack of involvement.

90 It follows that I am, therefore, not affirmatively satisfied that what the accused told Gary Butcher was inherently unreliable and that being the fundamental basis on which the evidence was sought to be excluded, the application on behalf of the accused is refused.

[4] See R v Swaffield & Pavic [1998] HCA 1; 192 CLR 159 at paragraphs [53]-[54].

[6] [2003] VSC 188; (2003) 13 VR 1

[8] [2006] VSCA 40; (2006) 13 VR 28 at page 42

[10] [2007] HCA 39; (2007) 231 CLR 396

[13] [2006] VSCA 43

[14] Quoted by Vincent JA at para 127 of [2006] VSCA 43

[15] [2004] VSC 476.

[16] [2006] VSCA 42 at para 188