ADELAIDE, 19 March 1997 (hearing), 29 April 1997 (decision).

Appeals against conviction and sentence for soliciting to commit murder.

The appellants were arraigned in the District Court on an information which, after amendment, charged them with the following offences - First Count Statement of Offence

Soliciting to Commit Murder. (Section 12(b) of the Criminal Law Consolidation Act, 1935).

John Richard Edginton and Luciano Giaccio in or about the month of August, 1995 at 27 Sellar Court, Greenwith, being the second occasion that John Richard Edginton met Seaton Hall at those premises, solicited Seaton Hall to murder Harold Denison.

John Richard Edginton and Luciano Giaccio on the 16th October , 1995 at 27 Sellar Court, Greenwith, solicited Stephen Woods to murder Harold Denison.

There were pre-trial applications by the appellants for the exclusion of evidence but they were substantially unsuccessful. The appellant Giaccio thereupon pleaded guilty to both counts, though with an important reservation. He handed up a document, signed by himself and the Director of Public Prosecutions, in the following terms - "The abovenamed is charged with two counts of solicit to murder. Given the rulings of Judge Wilson on the Voir Dire on the 16th September, 1996 the accused pleads guilty to both counts. The accused reserves his right to appeal against the conviction. The Director of Public Prosecutions agrees to the course of action proposed; that the accused be entitled to maintain his right to appeal."

Giaccio was remanded for sentence and a jury was empanelled to try Edginton. He was found guilty on both counts. The learned trial Judge sentenced Edginton to imprisonment for twelve years with a non-parole period of nine years, and Giaccio's sentence was ten years and four months with a non-parole period of seven years and nine months. Both men have appealed against their convictions and their sentences.

The Crown case, in brief, was as follows. Edginton was a licensed real estate salesman. He and Giaccio were friends and business associates. Formerly, in 1990, Giaccio and a man named Denison had started up a battery reconditioning business but it was never a success and in 1993 their company went into liquidation. Denison's contribution to the company was his technical skill and Giaccio, as a safeguard, took out an insurance policy on Denison's life. Despite the company's dissolution, Giaccio continued to pay the premiums. In 1995 the benefit payable in the event of Denison's death was $240 000. About August that year a man named Seaton Hall, a heroin user with a criminal record, wanted to sell his house at Greenwith and Edginton approached him on the matter. In the course of their discussions Edginton said that he had a job he wanted done, to kill someone or make him a paraplegic. It was for an insurance claim, he said, for a friend of his, so it had to be made to look like an accident. Hall said that he knew someone who could do that and a few days later Hall received $2 000 on account. Edginton supplied him with a photograph of Denison and a note of Denison's address. A fee of $12 000, possibly more, was discussed. That transaction was the basis of count 1. After that there were telephone calls, and a meeting which included Giaccio, but Hall kept prevaricating because he had no intention of either finding an executioner or returning Edginton's $2 000. On 13 October 1995, Edginton rang Hall to say that he had found someone else to do the job and he wanted the photograph back. Hall then went to the police. He saw Detective Woods who discussed the matter with his superiors. The police set up an undercover operation. Over the next few days, Hall made a number of telephone calls to Edginton which were recorded on tape and on October 16 Woods, using the name "Spike" and pretending to be a willing assassin, met Edginton and Giaccio at Hall's house. Their conversation about the manner of Denison's killing and the price to be paid was secretly taped by the police. This was the evidence of the count 2 offence. Later that day the police set about putting in train the procedures required by the Criminal Law (Undercover Operations) Act 1995. There were subsequent telephone discussions between Woods and Edginton, which were also taped, and on October 26 Woods called Edginton to say that "Someone we know had a bit of a fucking accident." They met a short time later at a Gepps Cross motel. Giaccio was also present. Woods told them the appellants that he had just killed Denison on the Port Wakefield Road in a simulated accident and he showed them Denison's wallet and driver's licence as proof of that. Giaccio handed $4 000 to Woods and promised more later. The meeting was secretly taped and photographed by the police and when the appellants left the room they were arrested.

Edginton gave evidence in his defence. He said that he and Giaccio saw Hall about the sale of the house. He was aware that Giaccio and Hall were talking together but he did not overhear their conversations. He did see Giaccio with a photograph of Denison and there was an occasion when Giaccio handed some money to Hall but Edginton was not involved in that. Later Hall threatened to have the appellants bashed if they did not pay him an extra $5 000. About this time he learned that Giaccio wanted to have Denison bashed and suddenly, at the meeting on October 16, the man called "Spike" was offering to kill Denison. Edginton realized that Giaccio was involved in some sort of deal but Edginton had nothing to do with it. He believed that it was about a bashing, not a murder. He went to the meeting at the motel on October 26 because he feared for his own safety. It was for the same reason that he did not report Giaccio's bashing proposal to the police. The Nature of the Appeals

The appellant Edginton relies on a number of grounds of appeal against conviction. Ground one attacks the trial Judge's pre-trial rulings on the admissibility of evidence. His other grounds of appeal are concerned chiefly with the summing up. The appellant Giaccio has only one ground of appeal against conviction and it is identical with Edginton's admissibility ground.

As I have indicated, Giaccio has appealed against his conviction although he pleaded guilty. He entered that plea on 17 September 1996 following a voir dire hearing that began on September 3. It may be that Giaccio would not have changed his plea had the Director of Public Prosecutions not agreed that, notwithstanding the plea of guilty, "the accused be entitled to maintain his right to appeal." At the hearing of the appeal Mr Rofe told us that he was not aware at the time of the Court of Criminal Appeal's judgment in R v Frantzis (1996) 66 SASR 558. In the circumstances there was no debate before us about the propriety of Giaccio's appeal against conviction. I take the precaution of drawing the profession's attention to the discussion of this subject in Frantzis.

The admission of the entrapment evidence was opposed on a number of grounds. It was said that the police were in breach of the Telecommunications (Interception) Act 1979 (C/w), the Listening Devices Act 1972 and the Criminal Law (Undercover Operations) Act 1995, and that in any event the evidence was improperly obtained by the police and admitting it into evidence at the trial was unfair to the appellants. I take each of these grounds of objection in turn.

Telecommunications (Interception) Act 1979

Ten telephone conversations subsequent to 13 October 1995, between Hall and Edginton and Giaccio and between Woods and Edginton and Giaccio, were tape recorded at the instance of the police. The method used was to have the caller, Hall or Woods, hold a micro-cassette recorder close to the telephone hand-piece in order to pick up the voices of both speakers. The tapes were played to the jury as a part of the prosecution case. The appellant's counsel had objected to this evidence at the pre-trial hearing on the ground that it contravened the Telecommunications (Interception) Act 1979 ("the Interception Act") but the learned trial Judge considered that he was bound by the decision of the Full Court in T v Medical Board (1992) 58 SASR 382 to admit it. Accordingly he found that the making of the tape recordings did not constitute "interceptions" within the meaning of the Interception Act and that therefore the Act did not apply to any of the telephone conversations involving the appellants so as to make the recording of the conversations inadmissible.In fact, divergent views were expressed in T v The Medical Board about the correct interpretation of the Interception Act. Both appellants in their notices of appeal complained of the learned trial Judge's ruling on the Interception Act point, but no argument was offered at the trial or at the hearing of the appeal to this Court because, while it was submitted that the view of Olsson J in T v Medical Board was correct, "It is acknowledged that [the trial Judge] was, as this Court is, bound by the decision of the majority." The implication in that statement, namely, that Olsson J's interpretation of the Interception Act was rejected by the other two members of the Court, is in my opinion incorrect. An examination of the reported judgments (58 SASR 382) shows that Matheson J and Olsson J took opposing views on the subject and that the third member of the Court, Debelle J, had nothing at all to say about it. His Honour simply agreed with the orders proposed by Matheson J but did not publish any reasons. Nothing can be read into the form of the concurrence because the orders proposed by Matheson J and by Olsson J respectively, allowing the appeal, were substantially the same. (Compare the position in the Court of Criminal Appeal, where a judge's bare expression of agreement, following another judge's delivery of reasons and a proposed order, is customarily taken, especially in the case of an ex tempore judgment, to indicate agreement with the reasons as well as the order.) That means, in my opinion, that T v Medical Board does not bind this Court, and did not bind the learned trial Judge, to any particular interpretation of the Interception Act. Subsequently we received full written arguments on the appellants' submission that the recorded telephone conversations were inadmissible.Mr Peek, for Edginton, submitted that by reason particularly of ss6 and 77 of the Interception Act no evidence in any form should have been given at the trial about the contents of any of the telephone calls. Alternatively, the ten tape recordings were inadmissible as evidence in the form of tapes to be played and heard; nor could they be used by Hall or Woods as a means of refreshing memory.

Section 6 of the Interception Act reads as follows - "(1) For the purposes of this Act, but subject to this section, interception of a communication passing over a telecommunications system consists of listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication.

(2) Where a person lawfully on premises to which a telecommunications service is provided by a carrier, by means of any apparatus or equipment that is part of that service:

(a) listens to or records a communication passing over the telecommunications system of which that service forms a part, being a communication that is being made to or from that service;

(b) listens to or records a communication passing over the telecommunications system of which that service forms a part, being a communication that is being received at that service in the ordinary course of the operation of that telecommunications system; or

(c) listens to or records a communication passing over the telecommunications system of which that service forms a part as a result of a technical defect in that system or the mistake of an officer of the carrier;

the listening or recording does not, for the purposes of this Act, constitute the interception of the communication."

The section has been in substantially the same form since the original Act of 1979. Indeed, it is much the same as s4 of the Telephonic Communications (Interception) Act 1960 (C/w) which the Interception Act replaced.

Sub-section (1) of s7 of the Interception Act reads - "A person shall not:

(b) authorize, suffer or permit another person to intercept; or

(c) do any act or thing that will enable him or another person to intercept;

a communication passing over a telecommunications system."

The section goes on to specify exceptions to this general prohibition, one of which is the interception of a communication under a warrant that has been issued pursuant to the Act. No warrant was issued in the present case and no other exception is in point.Sub-section (1) of s63 reads - "Subject to this Part, a person shall not, after the commencement of this Part:

(a) communicate to another person, make use of, or make a record of; or

lawfully obtained information or information obtained by intercepting a communication in contravention of subsection 7(1)."

"Lawfully obtained information" is a term of art that does not apply to this case. See s6E.

Section 77 (which is in the same Part of the Act as s63) provides that where a communication passing over a telecommunications system has been intercepted, then, generally speaking, "neither information, nor a record, obtained by the interception is admissible in evidence in a proceeding" - and that last term includes a District Court trial. None of the stipulated exceptions covered the telephone calls involving the appellants. See also s78.

The word "interception" is not defined in the Act, but the following words are (by s5) -

• "communication" includes "conversation.....and any part of a conversation...";

• "telecommunications system" signifies a telecommunications network and includes equipment, a line or other facility that is connected to a network;

• "telecommunications network" means "a system, or series of systems, for carrying communications by means of guided or unguided electro-magnetic energy...; and

• "telecommunications service" means a service for carrying communications by means of guided or unguided electromagnetic- energy....".

The word "recording"(cf. s6) is not defined but "record" is. Section 5 defines it to mean "(a) in relation to information

• a record or copy, whether in writing or otherwise, of the whole or a part of the information; or

(b) in relation to an interception, whether or not in contravention of subsection 7(1), of a communication:

(i) a record or copy, whether in writing or otherwise, of the whole or a part of the communication, being a record or copy made by means of the interception; or

(ii) a record or copy, whether in writing or otherwise, of the whole of a part of a record or copy that is, by virtue of any other application or applications of this definition, a record obtained by the interception."

There are now a good number of reported decisions on the application of the Interception Act to the recording of, or in some instances merely the surreptitious listening to, telephone conversations. Those that I have read are Miller v Miller [1978] HCA 44; (1978) 141 CLR 269, Reg v Migliorini and Ors [1981] TASRp 8; [1981] Tas R 80, R v Curran and Torney [1983] VicRp 77; [1983] 2 VR 133, R v Oliver (1984) 57 ALR 543, Hilton v Wells [1985] HCA 16; (1985) 59 ALJR 396, Edelsten v Investigating Committee of New South Wales (1986) 7 NSWLR 222, R v Edelsten (1990) 21 NSWLR 542, T v Medical Board, and Green (1996) 85 A Crim R 229.

In my opinion the taping of these telephone conversations by means of a micro-cassette recorder, held close to the telephone hand-piece by one of the persons having the conversation, did not amount to an interception of a communication passing over a telecommunications system within the meaning of sections 6 and 7 of the Interception Act.

The connotation of the s6 terminology is not as clear as it might be, which explains why different judges have interpreted the section differently, but I would see the telephone system as (to put it symbolically) starting typically with a handset microphone and ending with a handset loudspeaker. It may well have intangible components or features in between those points but its outer boundaries, as it were, will consist typically of telephones - a myriad of them, as it happens. It is true that the system will not operate unless sound is fed into it at one end and out of it at the other, but it does not follow from this that the sound waves that are external to the equipment at these two points are part of the telecommunications system itself. On that view of the matter, for a person to record a telephone user's voice by standing alongside him with a tape recorder is to record his communication while it is still outside the telecommunications system, not while it is passing over it. I would interpret a recording of the other person's words, "uttered" by the loudspeaker in the same handset, in a similar way. The communication from the other end has completed its passage over the telecommunications system before the microphone of the tape recorder picks it up. Thus, in my opinion, a recording made of a telephone conversation in this fashion, externally to the equipment in the sense I have described, is not an interception of the telephone conversation within the meaning of the Interception Act.

I can understand the opposing view but I think it runs into difficulties. It sees the telecommunications system in question as including the soundwaves passing between the speaker and the handset. I do not know what a physicist would say about that, but it does seem to me unrealistic to describe the speaker's words as being "intercepted" when the tape recorder is being held, say, well away from the direct line between the speaker's mouth and the telephone microphone. And what are the boundaries of the telecommunications system if one looks at it from the point of view of the words being amplified from the handset as a result of the electronic impulses sent along the line or through the ether from the caller at the other end? Some people have an auxiliary loud speaker, provided by the telephone authority, attached to their telephone to amplify the sound. Is one still within the system as long as the incoming sounds remain audible, so that the communication is still considered to be "passing over" the system when it reaches a tape recorder microphone that may be situated well behind the person to whom the communication is being addressed?

Because I take the view that the tape recordings in this case were made outside the telecommunications system, it is unnecessary for me to consider a possible argument that the Interception Act, on its true construction, only applies to interceptions made by a third party.

For these reasons, I would reject the appellants' submission that is based upon the Interception Act.

Next, it was argued that none of the evidence that relied upon tapes of telephone conversations or meetings involving the appellants was admissible at the trial because it did not meet the requirements of the Listening Devices Act 1972. The evidence in question consisted of the taped telephone conversations instigated by Hall and Woods that I have just been discussing, taped recordings of the meeting of October 16 which were made by two concealed micro-cassette recorders, and the audio and possibly audio-visual records of the motel meeting on October 26 that were made by means of microphone or transmitter and also a camera concealed in the meeting room and linked to police equipment in an adjoining room. The jury heard the tapes and saw the film as part of the prosecution case. It was put to the learned judge, as it was to us, that evidence of this kind could only be admitted at a trial if it was obtained pursuant to a warrant issued under the Listening Devices Act, and in this case no warrant had been obtained. Secondly, the appellants argued that, even if it was possible in some circumstances to lead such evidence without the support of a warrant, the motel meeting in this case could not be proved with the assistance of these technical aids because there were certain police officers involved in the recording of the material who could not possibly claim to have been exempted by the Act's provisions.

The learned trial Judge rejected the appellants' legal arguments. He also said that, if the conduct of the police on either October 16 or October 26 was unlawful, the unlawfulness was not of a kind that warranted the exclusion of the evidence in accordance with Bunning v Cross principles.

There is no doubt that the microphones or transmitter and tape recorders that we used here were listening devices within the meaning of the Listening Devices Act. See the definition in s3. The Crown did not submit that the taping of the telephone conversations was outside the Act's reach on the ground the Interception Act covered the field with respect to the recording of telephone conversations. (Cf. Miller v Miller.)

Sections 4 and 5 of the Listening Devices Act read - "4. Except as is provided in this Act a person shall not intentionally use any listening device to overhear, record, monitor or listen to any private conversation, whether or not he is a party thereto, without the consent, express or implied, of the parties to that conversation.

Penalty: Division 5 fine or division 5 imprisonment or both.

5. A person shall not knowingly communicate or publish any information or material derived from the use of a listening device in contravention of section 4 of this Act.

Penalty: Division 5 fine or division 5 imprisonment or both."

Section 6 provides for the issue of a warrant by a judge of the Supreme Court, authorizing the use of a listening device, if the judge is satisfied that the issue of the warrant is justified having regard to the specified criteria. Section 4 does not apply to the use of a listening device pursuant to a warrant.

Section 7 of the Act reads - "(1) Section 4 of this Act does not apply to or in relation to the use of a listening device by a person (including a person to whom a warrant is issued under section 6) where that listening device is used - (a) to overhear, record, monitor or listen to any private conversation to which that person is a party;

(b) in the course of duty of that person, in the public interest or for the protection of the lawful interests of that person."

(2) A person referred to in subsection (1) of this section shall not otherwise than in the course of his duty, in the public interest or for the protection of his lawful interests, communicate or publish any information or material derived from the use of a listening device under that subsection.

Penalty: Division 5 fine or division 5 imprisonment or both."

Mr Peek's first submission was that the Act, on its proper construction, distinguishes between the use of listening devices by the police and the use of listening devices by other persons or classes of persons. If the police want to use a listening device they must proceed by way of a warrant obtained under s6. Section 7 is not generally applicable to police investigations. The words in parentheses in that section -"(including a person to whom a warrant is issued under section 6)" - are concerned with the situation in which a warrant was originally issued under s6 but the warrant has expired or should have been cancelled: see subs(7), (8) and (9) of s6. We were urged to interpret the Act strictly and in a way that would safeguard the liberty of the subject.

I do not accept this interpretation of the Act. It requires one to read into the Act qualifications that are not there. The scheme and the operation of the Act are tolerably clear in this respect. Section 4 applies generally to everyone who uses a listening device in the specified circumstances and for the specified purpose, but s6 creates one form of exception to the general prohibition and s7 creates another. Only the police or the National Crime Authority may seek the benefit of s6 but there is no restriction in the class of persons who may qualify for the exception or exclusion created by s7. I should have thought that, if Parliament had intended to shut the police out of s7, it would have said so. It would be strange if the Act has the meaning for which the appellants contend, for it would mean that private persons could tape their own telephone conversations in certain circumstances but the police could not.

I turn to s7. The telephone calls were recorded by Hall and Woods by means of a hand-held tape recorder. Plainly the tape recorder was a listening device. As I have explained, when Hall taped a telephone conversation with Edginton or Giaccio he did so by holding the tape recorder close to the telephone hand piece. He thereby ensured that the listening device was being used to record a conversation to which he himself was a party. However, s7 could only apply if the conversation was a "private conversation", and that expression is defined in s3 of the Act to mean "any conversation carried on in circumstances that may reasonably be taken to indicate that any party to the conversation desires it to be confined to the parties to the conversation."

There was material before the learned trial Judge on the voir dire that strongly suggested

• as, indeed, the jury must later have found - that the subject of Hall's conversations with the appellants was the plan by the appellants to have Denison murdered. One may fairly conclude, therefore, that this was a private conversation within the meaning of s3. However, more was needed. The taping of the conversations had to be done in the course of duty of Hall, in the public interest or for the protection of the lawful interests of Hall: see par(b) of subs(1) of s7. In my opinion, it was, in the circumstances, in the public interest that Hall should tape these conversations, because it must always be in the public interest to bring to justice persons engaged in a conspiracy to murder and there was good reason at the time to suspect that the appellants were engaged in such a conspiracy and that the appellants' conversations with Hall were designed to further it.

Woods's position under s7 was substantially the same, although it could be added that his taping of the conversations in which he participated took place in the course of his duty to investigate and obtain evidence of suspected serious crimes.

It is unnecessary to consider whether the taping of the telephone conversations by Hall or Woods could be brought within any other part of par(b).

Thus the learned Judge was entitled to find, as he did, that the taping of the telephone conversations was not prohibited by s4 of the Listening Devices Act.

On 16 October 1995 there was a meeting at Hall's house between Hall and Woods and the appellants. What was said was taped on two micro-cassette recorders which Woods hid and activated before the appellants arrived. He switched off the recorders when the appellants left the house. The learned trial Judge admitted this evidence under s7.

The taping on this occasion was done by Woods who was himself a party to the conversation that took place. The situation was essentially the same as in the case of the telephone conversations, except that four people were involved at the house, not two. I would uphold the learned Judge's ruling with respect to this occasion.

The situation at the motel on October 26 was more complicated. On the Crown's interpretation of evidence that was largely undisputed factually, Woods, alias Spike, had telephoned the appellants to say that he had just murdered Denison, and this was a meeting at which Woods would provide some evidence of his claim and be paid for what he had done. Plainly the purpose of the police in setting up the meeting was to obtain evidence that would incriminate the appellants.

I should say that by this time the police had put in train procedures under the Criminal Law (Undercover Operations) Act 1995. However, the prosecution also relied, additionally or alternatively, on the Listening Devices Act to support the evidence it led with respect to the October 26 meeting.

The procedures at the motel were quite elaborate. Two police officers hired rooms nineteen and twenty, and later members of the Police Technical Unit attended and fitted room nineteen (the meeting room) with a microphone or transmitter and a camera and set up what Detective Sergeant Doherty called an "observation post" in room twenty. This consisted of equipment by which the police technical officers could see and hear and record what was going on in room nineteen during the meeting, and that is what they did. Doherty switched the equipment on before the appellants arrived, and after they had left he switched it off. Woods knew about the equipment, of course, but he did not have the physical control of it. That was left to the technical officers.

As I have said, it is clear that the surveillance items in room nineteen, and possibly certain of the back up equipment as well, were listening devices within the meaning of the Act. Again, the police did not have a warrant under s6. They went into the trial relying on s7. Mr Peek's submission was that s7 could not help them because it was Woods who was the party to the conversation with the appellants and he was not the one who used the recording equipment. That was done by the technical people. The section should be applied strictly; there is no room here for any notion of agency.

We can ignore the camera for present purposes - a "listening device" does not include a camera - but certainly the Crown had to show that Woods "used" the microphones and tape recorder. However, I do not see why a person in his position should not enlist the services of others to assist him in what could be quite a complex operation. That was the view taken by Duggan J in R v Bodsworth (8 September 1994, unreported) and by O'Loughlin J in Carbone v Gillam (1995) 32 IPR 385. Nor do I think that this means that the person who makes use of such assistance must necessarily be in command of the technical operation or even be the person who switches the equipment on and off. Obviously the situation will be clearer if he is, but it will be a question of mixed fact and law in every case whether his involvement in the recording is such that he can be said to be "using" the recording equipment. It does not infringe what I take to be the overriding policy of s7 - that a private conversation should not be recorded without the knowledge and approval of one of the participants in it - to take a practical view of what amounts to "use". Woods knew that the surveillance equipment was there and he intended that the conversation in which he took part should be recorded. One may infer that he did his best to ensure that it was. In my opinion, it was open to the trial judge to find on the evidence, as he did, that the listening devices in question were used in the relevant sense by Woods to record the motel conversation.

Mr Peek submitted that, even if Woods's use of the equipment in this sense was authorized, that could not avail the technical officers whose breach of the Act thereby tainted the taped evidence and should have led to its rejection. In my opinion, if the use of a listening device under s7 can be a use by means of an agent or assistant, then the agent will share in such exemption as the section confers. He will come under the section's umbrella, as Duggan J put it in Bodsworth. The non-application of s4 in the circumstances stipulated by s7 is not merely "to" the use of the listening device but "in relation to" such use and that is enough, I think, to include the technical assistants.

So I would uphold the learned Judge's ruling with respect to the October 26 meeting.

His Honour also said that, if he was wrong about his application of s7, and the audio tapes were obtained unlawfully, he would nevertheless decline to exclude the evidence as a matter of discretion. The reasons that he gave for so holding dealt chiefly with the position under the Criminal Law (Undercover Operations) Act. So far as the Listening Devices Act is concerned, no encouragement, in my opinion, should be given to the police to refrain from applying for a warrant under s6 where that is the proper course to take. On the other hand, it is relevant to bear in mind that it would have been quite easy for Woods to have taken physical control of the equipment just before the meeting - the setting up would not matter - and, in particular, to have switched it on with the technical people keeping their hands off it from that point onwards, and so to have avoided the argument as to whether it was he or the others were using the listening devices within the meaning of s7. I would, if it mattered, uphold the trial judge's discretionary judgment.

When Woods, on 16 October 1995, met the appellants at Hall's house and gave himself the name "Spike" and the role of a professional assassin, he thereby became an undercover investigator and he kept up the pretence with the appellants until they were arrested following the motel meeting ten days later. Undercover operations are as old as the police force itself and they do not necessarily involve any illegality or impropriety on the part of the police officer concerned. However, they may do so and in some circumstances that can lead to the evidence of the undercover officer being rejected at the subsequent trial of the person being investigated. See Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19, Martelli (1995) 83 A Crim R 550 and R v Albu (1995) 65 SASR 439.

The enactment of the Criminal Law (Undercover Operations) Act 1995 ("the Undercover Operations Act") followed the High Court's decision in Ridgeway and was obviously intended to make it easier for the prosecution to meet defence submissions that prosecutions depending on entrapment evidence should be stayed or the evidence excluded where the methods used by the police amounted to illegal or improper conduct. It is noteworthy that the definition of "undercover operations" in the Act plainly implies that Parliament does not consider that giving persons engaging or about to engage in serious criminal behaviour the opportunity to manifest that behaviour, or to provide other evidence of that behaviour, is necessarily improper. The Act sets up a scheme for the approval of undercover operations by a senior police officer, and s4 provides that, despite any other law, an authorized participant in approved undercover operations incurs no criminal liability by taking part in undercover operations in accordance with the terms of the approval. The authorized participant thus avoids any risk of prosecution for his own part in the approved operations, and the prospect of the evidence surviving a Bunning v Cross attack from the defence is likely to be enhanced. The Act does not state that the police may not engage in undercover operations unless they have first obtained an approval under this legislation, and I reject the submission that is should be interpreted as though it did. However, if the police engage in undercover operations without a statutory approval, those engaged in the operations will not have the benefit of the s4 immunity and any questions of admissibility will be determined on common law principles. Indeed, the prosecution may find in such a case that, where they could have sought an approval but failed to do so, this may tell against them in the event of an undercover officer overstepping the mark, so that an application is made for the exclusion of the evidence because it is tainted by illegality or impropriety.

On 16 October 1995, after the meeting at Hall's house, the police sought and obtained an approval for the undercover operations in which Woods and others were to engage. Presumably the purpose was to provide a safety net in the event of some impropriety on Woods's part in his dealings with the appellants. The result was that a great deal of time was spent in the pre-trial hearing in a minute examination of the legal effect of the approval and the procedures whereby it was obtained. In the end the trial Judge found that the approval had a partial efficacy or operation in the proceedings; in so far as there was any unlawfulness in the conduct of the police on October 16 or October 26 his Honour declined to exclude the affected evidence in accordance with Bunning v Cross principles.

In my opinion, none of this provides any foothold for the appellants' attack on their convictions. I have read the transcripts (Exhibits L, M and N) of the telephone calls and other conversations in which Hall or Woods and the appellants were involved subsequent to the securing of the undercover operations approval. There was no importunity or impropriety on the part of Hall or Woods. The conversations assumed prior dealings between Hall and the appellants, preparatory to the introduction of Woods as a contract killer, and the conversations were really confined to the operational details of the impending murder and the fee that Woods would be paid for carrying it out. Assuming that the police were entitled to approach the appellants at all in the circumstances - and that is the subject of another ground of appeal

there was nothing in this evidence that could possibly support an application for its exclusion as having been unlawfully or unfairly obtained.

I should say that on the appeal Mr Rofe placed no reliance on the Undercover Operations Act. It is therefore unnecessary to consider the argument, that the prosecution evidently advanced at the trial, that an appropriate form of approval under the Undercover Operations Act could relieve the undercover officers of any legal obligations by which they would otherwise be bound under the Listening Devices Act. Of course, there could be no question of the local Act overriding the Commonwealth Interceptions Act.

There remains one other submission as to the admission of the undercover evidence - that it was improper or unfair for the police to introduce an undercover officer into the affair in October 1995 with the object of obtaining admissions from the appellants of soliciting Hall to murder and as further corroborative evidence of the commission of that offence, when the effect of doing so was to deprive the appellants of their common law and statutory right of silence and to avoid cautioning them as to the exercise of that right. Mr Peek relied on the cases that emphasize the need for the police, who have reasonable cause to suspect that a person has committed a crime, to administer the usual caution to him before questioning him about the matter. R v Dolan [1992] SASC 3638; (1992) 58 SASR 501, R v Webb and Hay (1992) 59 SASR 563. The police will not necessarily avoid their responsibility in this respect by getting someone else to do the questioning for them. See, for example, R v Pfennig (No. 1) (1992) 57 SASR 507, R v Smith and Turner [1994] SASC 4874; (1994) 63 SASR 123. Mr Peek also relied on the Court's discretion to exclude a confession when it had been obtained by deceit, and for the general principle he referred us to Cleland v The Queen [1983] HCA 32; (1982) 152 CLR 1 and for examples to R v Fieldhouse (1977) 17 SASR 92 and R v Szach (1980) 23 SASR 504 and R v Sharp (1983) 33 SASR 366.

I do not think that the law about cautions and the right to silence is directly in point here. The police had some evidence that the appellants had already committed one serious crime (soliciting Hall to murder) and the dominant purpose of the undercover operation was to see whether the appellants were willing to commit another serious crime (soliciting Woods to murder). If in the course of the entrapment operation the appellants should provide evidence against themselves with respect to Hall's allegations, the police would no doubt make use of it in any ensuing prosecution, but that, in my opinion, did not make Woods's conversations with the appellants, on the telephone or at the two meetings, tantamount to interviews by a police officer with suspected persons that attracted the common law or statutory right to a preliminary caution.

Some of the early telephone calls were made by Hall, and it was open to the jury to find that the appellants compromised themselves in some of the things they said to Hall on those occasions. However, Hall was not a police officer interviewing the appellants and there were no special circumstances that required that he should be treated as though he were.

I have said that the appellants relied on the single judge decisions in Pfennig (No. 1) and Smith and Turner. The decision in Pfennig (No. 1) turned on its special facts. The accused was in prison, charged with murder. He had told the police when they sought to interview him that he would not answer any questions. The police, in an attempt to overcome this obstacle, engaged another prisoner to inveigle Pfennig into making a gaol yard confession. It was a long way from this case. Nor was there any reason to suspect that Pfennig was planning to commit another similar crime. Smith and Turner had much in common with Pfennig except that Turner was not under arrest; indeed, at the time the police arranged for someone to talk to him with a view to securing incriminating admissions, they had made no attempt themselves to question him. No doubt they suspected him but more than that, in my view, is needed to attract the rules relating to police interrogations. I would, with respect, decline to follow Smith and Turner if necessary - I do not think that society can afford to pitch the test as high as that -, but for present purposes it is enough to say that the threatened continuation or repetition of the suspected crime in the case of the appellants, creating a legitimate entrapment situation, is enough to distinguish this case from Smith and Turner.

So there was no illegality. That leaves the aspect of deceit upon which Mr Peek relied as an independent ground for rejecting the entrapment evidence. The use by the police of unfair or improper methods of interrogation or investigation will always raise a question of discretionary exclusion, but the use of deceit by the police in their dealings with a suspect will not always be improper or unfair. Practically all entrapment evidence is the product of deceit and, within limits that need not be restated here, such evidence is accepted by the courts. See generally Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 and R v Martelli (1995) 83 A Crim R 550.

It is true that the police probably had reasonable cause to suspect, from the time Hall went to them on October 13, that the appellants had solicited Hall to commit a murder, but undercover operations will not necessarily be unfair because they are undertaken or continued after the police have evidence of the commission of a crime. In the days when the police would watch a hotel for evidence of after hours trading, they were not obliged to step in as soon as they had, or thought they had, evidence of a single illegal sale, and the same holds good for the surveillance of suspected drug dealers now. Commonly an undercover officer will buy a quantity of an illegal drug from a dealer and then see whether the dealer is willing to make another sale of a larger quantity or of a different, more deleterious drug. There is nothing wrong with such tactics, where the purpose is to provide evidence of the nature and size of the suspect's illegal drug business or simply, as here, to strengthen the police case against a suspect by supplementing within reasonable limits the evidence they have already obtained. In the present case the police had a statement from Hall and some circumstantial evidence, but Hall was a heroin user with a conviction for attempted armed robbery and would probably need an accomplice direction in the event of a prosecution. In my opinion, the police were justified in mounting an undercover operation in this case to see whether, if the appellants had solicited Hall to murder Denison, they would solicit Woods as well. They did not act improperly in including in the undercover operation the motel meeting of October 26 which was designed to provide evidence of a soliciting, with a resultant faked murder, that had already taken place. One would not ordinarily exclude, as unfairly obtained, evidence of a payment of money to a suspected blackmailer, made under surreptitious police surveillance following a complaint by the alleged victim, on the ground that any crime of demanding money by menaces was already complete on an earlier occasion, and there was no more reason to exclude the corresponding evidence of a completed crime in this case. I would so hold on the simple policy ground that, disagreeable though deceit and subterfuge may be, it is possible for the courts to be overscrupulous in supervising the methods the police use to detect and prove serious crimes. Fairness in a criminal trial may not mean the same as fairness on the cricket ground. Nothing that the police did here was illegal or was calculated to shock the public conscience. (Cf. Ridgeway). The learned trial Judge acted correctly, in my opinion, in declining to exclude the entrapment evidence on grounds of impropriety or unfairness.

For these reasons I would reject the appellants' submissions that complain of the wrongful admission of evidence.

The following grounds of appeal were put forward by the appellant Edginton only.

The evidence showed that Giaccio was the stipulated beneficiary under the insurance policy that was taken out over Denison's life, so Giaccio obviously had a motive for having Denison murdered. However, Edginton was not a beneficiary and there was no evidence of any such motive on his part, although the evidence did show, and indeed it was common ground, that Edginton and Giaccio were business associates and also friends. Mr Peek submitted that the learned Judge erred when he told the jury that there was evidence of motive implicating Edginton.

In his summing up the Judge summarized the Crown case. He told the jury

"The Crown has invited you to draw the inference that both Mr Giaccio and the accused, as friends and associates of one another, had a motive for the crime of soliciting to commit murder, namely, the prospect of benefiting from Luciano Giaccio obtaining a big insurance payout on the policy of insurance that he continued to maintain on the life of Harold Denison."

His Honour returned to the subject of motive more than once. He pointed out that the Crown did not have to prove a motive. "However, if there is evidence that an accused had a motive, or that the joint participants in a criminal enterprise, of whom the accused was one, had a motive, that is some circumstantial evidence which may combine with other circumstantial evidence to prove a charge.

So it is that the Crown is entitled to point to evidence of motive, if it is proven, as against the accused as another item of circumstantial evidence in helping you to decide (if it does help) whether the Crown has proved its case beyond reasonable doubt.

You may think that the evidence of motive here is an important part of the prosecution case against the accused."

Later in his summing up the learned Judge referred to "the evidence going to establish (but it's a matter for you) that both the accused and Mr Giaccio had a motive."

Mr Peek complains that this was circular reasoning. The jury could only find that Edginton stood to gain from Denison's death if the two appellants did, in fact, agree to murder Denison and if a term of that agreement was that Edginton would benefit financially. There was no evidence of that or even of Edginton being in pressing financial need.

There was indeed no evidence of a motive on Edginton's part, independently of his association with Giaccio and whatever may have been concluded from that. Obviously motive could not have been the starting point of any case against Edginton, as it could against Giaccio, but the Judge could have pointed out to the jury that, if they were satisfied that Giaccio stood to gain a lot of money from Denison's death, then Edginton's friendship with Giaccio, considered in the light of the part he played in the telephone conversations and meetings, could possibly have indicated a motive of friendship or financial gain on his part - so much could be inferred from Edginton's apparent support for Giaccio's murderous and strongly motivated soliciting to kill. However, the learned Judge did not put it quite like this, and I think he should have pointed out to the jury that there was certainly no direct evidence that Edginton had anything to gain financially from Denison's murder. Nevertheless, the situation on the evidence was simple and clear and was no doubt put by defence counsel to the jury. For the most part, what his Honour said about motive referred to the Crown's submission or was contingent on the jury finding that a motive was in fact proved. The Judge's reference to "the joint participants in a criminal enterprise" described the condition upon which Giaccio's motive could be relevant to Edginton's position as well. What the Judge said could have been better expressed, perhaps, but I am satisfied that the jury could not have been wrongly influenced by his Honour's directions on motive. I would reject this ground of appeal. Ground 3 - Prior Inconsistent Statements

Ground 3 complains that the learned Judge erred in his directions to the jury about the relevance and correct use of prior inconsistent statements.

What the learned Judge said was this - "I should say something to you about inconsistent statements, because much has been made, and appropriately so, about inconsistent statements, because much has been made, and appropriately so, about inconsistent statements that are alleged to have been made by Mr Seaton Hall, in particular.

Where you find that any particular witness has been made an inconsistent statement, that is to say, that he or she has made one statement at one time, and another statement at another stage, and those two statements are inconsistent with each other, that may help you, but it need not necessarily do so, to decide which of the two statements is true and correct.

You may conclude that the statement made later is true, or you may conclude that the former statement is true; and that the later statement is a matter of recent invention or the like. You may even conclude that it would be unsafe to rely on either statement.

If it be the position that a witness has made inconsistent statements, it does not necessarily follow that you should reject the whole of the evidence that he or she has given. You can, as I have previously indicated, accept some and reject some.

I will return to this topic later, when discussing the witness Seaton Hall, who made, you might think, a lot of inconsistent statements."

Later, when discussing the evidence of Hall, his Honour said - "Mr Peek has analysed Mr Hall's evidence carefully and in great detail. There is much that I imagine you will find convincing in that analysis. Mr Seaton Hall has made some inconsistent statements. He has made himself the subject of much criticism

Make what you will of him and of his evidence. Whichever way you characterise Mr Seaton Hall's involvement, whether as an intended accomplice turned informer, as what we in the law call an agent provocateur, as a stool pigeon, as the hit-man's agent, as an undercover operator, as a criminal, as a liar, as a manipulator, or as a slippery customer, Mr Seaton Hall clearly had an interest or interests of his own to serve as he gave his evidence.

It was, you might think, clearly to his advantage to support the prosecution and do his best to implicate the accused. You might think that he had a purpose or purposes of his own to serve if he gave false evidence.

I, therefore, warn you to be distinctly cautious with Mr Hall's evidence."

His Honour then gave the jury an accomplice warning with respect to Hall, concluding with the statement that there was no evidence capable of corroborating Hall's claim that he was solicited to murder Denison.

The first thing to be said about these passages from the summing up is that they are not confined to prior inconsistent statements in the sense of statements made on an earlier occasion out of court. Hall was in the witness box for a long time and quite a number of the inconsistencies that were put to him in cross-examination were based on answers that he had given earlier in his evidence. The instances of cross-examination based on previous statements out of court, for instance to the police, were few. Most of the previous statements he admitted. They appear to have been of only marginal significance. Their effect on the relevant factual issues would have been appreciated by the jury at the time.

Defence counsel sought a redirection on this subject but without success.

In my opinion, it would have been better had the learned Judge told the jury, even with respect to inconsistencies in Hall's court room evidence, that such inconsistencies can bear upon a witness's general credibility, but I think the jury would have understood that well enough at the time and from what his Honour said. It would also have been better had his Honour given the usual direction about previous inconsistent statements with respect to earlier statements made out of court. However, it is significant that Mr Peek's submission on this ground of appeal was confined to an examination of the summing up and did not take us to the evidence and explain how a better direction on previous inconsistent statements could have made a difference to the jury's verdict. That it could have made a difference is far from obvious from a reading of the transcript. It was a quite different case in this respect from Davis and Hyland v R (1995) 183 LSJS 186. The fact is that the learned Judge identified and emphasized strongly the shortcomings of Hall's evidence and character, and the jury could have been left in no doubt about the effect of his inconsistencies upon his credibility. This ground of appeal is not made out.

This ground of appeal gathers up a number of alleged errors or infelicities in the summing up.

In the course of quite a lengthy general direction about the nature of circumstantial evidence there were included these passages - "When we speak, ladies and gentlemen, of circumstantial evidence, we mean (generally) evidence from which the facts to be proved can be inferred. Circumstantial evidence, as distinct from direct evidence (such as the evidence of an eye-witness), has been defined as evidence of minor facts of such a nature that the mind is led, either by intuition or by a process of reasoning, to the conviction that some other fact (the fact to be proved) may be inferred...."

"A number of circumstances, each individually very slight, may so tally with (and confirm) each other as to leave no room for doubt of the fact they tend to establish. Of course, the strength of circumstantial evidence lies in the fact that you may have a number of different things all pointing in the same direction. If a person be innocent, the chances are that there will be some circumstance turn up which will, as it were, destroy the pattern."

Counsel's criticism was directed to the passages in italics [not transcribed].

Judges are required in this country, where the case against an accused person rests substantially upon circumstantial evidence, to give the direction laid down in Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 which, in effect, restates the requirement of proof beyond reasonable doubt in a form particularly appropriate to circumstantial evidence. The learned Judge gave the required direction here and no complaint is made about that. The intellectual process by which a fact may be inferred from circumstantial evidence will involve a jury's experience and reasoning powers and judgment. It is not a matter of deductive logic but of assessing the probabilities. I should not have thought of including intuition as an aid to, much less a substitute for, inferential reasoning. The word "intuition" has a number of meanings, of which probably the most common in everyday use is "immediate apprehension by the mind without the intervention of reasoning" (New SOED). What any juror who noticed it would have made of his Honour's reference to intuition can only be guessed at. Probably he or she would have thought the Judge was contrasting an inference drawn immediately, and without conscious step-by-step rationalization from one intellectual position to another - the sort of thing we do unthinkingly all the time -, with something more self-conscious and deliberate and systematic that the lay mind might think is more appropriately described as "a process of reasoning". It does not really matter. The use of the word "intuition" was unfortunate. It is apt to mislead in this context and, in my opinion, would be better not used in a summing up. However, I do not think it could possibly have sent the jury off on the wrong track. As I say, the Judge went on to give the jury a Peacock direction and he elaborated on it. He spoke repeatedly of the drawing of inferences from the evidence. There was no real risk, in my view, that the jury would be misled by a stray reference to "intuition" into the drawing of inferences from circumstantial evidence in some impermissible fashion.

Mr Peek criticized the last sentence in the second passage that I have quoted on the ground that it tends to reverse the onus of proof. Again, I am not sure what the jury would have made of this observation. It could be regarded, I suppose, as the philosophical or moral justification for the common law's doctrine of proof beyond reasonable doubt. There is a real question whether this kind of observation could have assisted the jury but there is no possibility, to my mind, that it could have led them to reverse the onus of proof.

Finally, the Judge was criticized for using the word "reasonable" several times in his statement and elaboration of the Peacock direction, on the ground that he should spoken simply of a rational hypothesis and not introduced or reiterated a qualification of reasonableness. In my opinion, there is no substance in this point. There is no obligatory form of words for a circumstantial evidence direction. The expressions "reasonable hypothesis" (Peacock v The King, supra, at 634; Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234, at 245), "other rational conclusion" (Reg v Hodge (1838) 2 Lew.C.C.227, at 228; 168 ER 1136, at 1137) and both "rational inference" and "reasonable explanation" (Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 at 375) have all been used in this context. The learned Judge's use of the word "reasonable" was not excessive or misleading. The summing up was unexceptionable in this respect.

82. The learned trial Judge declined to find that there was no case for the appellant to answer on count 2 on the basis that the commission of the offence was impossible, and he declined to leave to the jury a defence of impossibility on the facts. In this he is said to have been in error. The reasoning is that Woods was a police officer and his assumption of the role of the "hit man" was a mere pretence, so that it was "logically, factually and legally impossible for the accused to persuade the person chosen to play the role of the hit man to actually harm the proposed victim." Thus the alleged crime was impossible. The submission, in my view, is misconceived. Apart from any other difficulty, and assuming the continued authority in this State of Haughton v Smith [1975] AC 476, the submission confuses factual impossibility with factual improbability, and that is fatal to the argument. See Kristo (1989) 39 A Crim R 86. This ground of appeal fails.

83. For these reasons I would dismiss the appeals against conviction.

84. Both appellants complain of their sentences - that they were simply too high and, in the case of Giaccio, that the discount for his plea of guilty and his willingness to cooperate was too small.

85. The maximum penalty for soliciting to murder is imprisonment for life. The particular offences committed by these two men were extremely serious. They were seeking to have a man murdered in cold blood so that Giaccio could gain financially and both, it seems, be revenged upon the victim because of the collapse of the battery business. The Judge allowed for the appellants' previous good records and their character evidence and, in the case of Giaccio, some sign of contrition. He corrected declined to regard Edginton's "personality disorder", not shown to be causative, as a mitigating factor. There were two crimes, though with a common object, and they were planned and executed with persistence. This was not a case in which there were improper features of the police entrapment that could themselves be made a ground for leniency. See Martelli (1995) 83 A Crim R 550, at 560. The non-parole period, not only the head sentence, had to reflect the seriousness of the offences. The sentence passed on Edginton was not excessive.

86. Giaccio pleaded guilty but not until the pre-trial rulings went against him. He was therefore entitled to only a limited benefit from his late plea. He also sought an advantage from his willingness to give evidence against Edginton, if required. There is no set discount, of course, for a plea of guilty, much less a late plea of guilty, and the fact is that Giaccio's assistance at the trial was not needed. Cf. R v Nguyen [1989] SASC 1688; (1989) 50 SASR 361. Giaccio's sentence was not excessive. The differentiation between his sentence and Edginton's was adequate in the circumstances.

88. The orders of the Court in the case of each appellant should be - appeals against conviction and sentence dismissed.

89. I agree that the appeal should be dismissed for the reasons given by Cox J.

90. I agree that the appeals against conviction and sentence should be dismissed for the reasons delivered by Cox J.