R v Mackie [2017] NSWSC 1211 | Case summary

Bega Police Station - 1 December 2015

It will convenient to deal first with Orders 2 and 3.
These orders deal with what occurred at the Bega Police Station on 1 December 2015.
The evidence about these events came primarily from Detective Senior Constable Lugsdin ("DSC Lugsdin"), who was the Officer in Charge of the investigation, and Detective Chief Inspector Kevin McNeill ("DCI McNeill"), who was the Crime Manager for the Far South Coast Local Area Command ("the LAC").
DCI McNeill was, at the relevant time, the most senior officer in the LAC dealing with events such as the arrest of the accused. He described himself as the commander in charge of all criminal investigations in the LAC, and that when serious criminal investigations occurred, he got involved or else oversaw them. He also gave evidence that he had a role with respect to Aboriginal suspects and witnesses. He said that he was the Aboriginal Issues Officer for the whole of the LAC, and that he had a lot to do with various issues: "… that relate to Aboriginal people, especially within our command, which one at the moment is and has been for some time, suicide prevention, and things like that."
To give effect to this role, he had the assistance of an Aboriginal Liaison Officer.
DCI McNeill was notified about the death of Ms Cave about 45 minutes or so after her body was discovered on 14 October 2015. From then on he oversaw the investigation. This included sending members of his LAC's homicide squad down to Tathra and then travelling down to Tathra himself. He spoke to the relevant inspector who was overseeing the investigation on a daily basis and ensured that all of the necessary resources were provided.
Although DCI McNeill was principally based at Batemans Bay, he travelled to Bega regularly and occasionally operated out of there.
DCI McNeill was informed, in advance, of the intention of police to arrest the accused on 1 December 2015. He travelled to Bega that day because the investigation was being finalised, and he knew that there was an interview to be undertaken with the accused and that an arrest was to be made.
Upon attending the Police Station in Bega, he went to the detectives' office area in the Bega Police Station where he remained whilst the interview with the accused was taking place in the Interview Room.
DCI McNeill had previously met the accused and had some interaction with her. He gave evidence that she had been to police and consultative committee meetings with him. These apparently are meetings held between police and the Aboriginal community once each year in Bega. According to DCI McNeill's evidence, the accused had attended one of those meetings.
DCI McNeill had been present at the Bega police station on 27 October 2015, when the accused was being interviewed by Detective Sergeant Marks. She had become quite upset during that interview and DCI McNeill said he saw her on that day and just tried to calm her down "… and make sure she was OK so she could finish her statement which she was doing".
DCI McNeill said in cross-examination that the purpose of his going down to Bega on 1 December 2015 was: "Oversight the execution of the arrest and the finalisation, deal with the media, and all those type of things."
He said that he intended to remain in Bega until the interview with the accused was finished. He also said that during the course of the interview DSC Lugsdin, who was responsible for the arrest and the interview, had come into the room where he was working and informed him of the progress of the interview. When further questioned about what he was doing there, Mr McNeil said: "I am waiting. I am there supervising the whole lot from start to go, and that includes the charging process to make sure everything is done correctly, inform all the appropriate people who are needed to be informed, and I am there for the whole day until it is finalised."
DCI McNeill said that his presence there would be of assistance to investigators.
He also said that by the conclusion of the recorded interview undertaken by DSC Lugsdin, he had been informed that the accused had not made admissions to the offence of murder.
It is necessary, before considering the conversations between DCI McNeill and the accused, to recount some of the history of the recorded interview.
The accused was arrested at 9.15am on 1 December 2015, by DSC Lugsdin. She arrived at the Bega Police Station at about 9.25am. A support person, Ms Yvonne Gunning, a minister of a local church, was contacted and asked to attend at the police station.
Leading Senior Constable Jones, one of the officers involved in the investigation, read a caution to the accused at about 10.05am. It followed the required format under the Law Enforcement (Powers and Responsibilities) Act 2002. A short time after that the accused spoke with a solicitor by telephone. At the conclusion of that conversation, the solicitor spoke with DSC Lugsdin.
At about 10.36am, after Ms Gunning had arrived and met with the accused, there was a further telephone conversation with Ms Skinner, a respected solicitor at the Aboriginal Legal Aid Services ("ALS"). She spoke with the accused, and then spoke with Leading Senior Constable Jones. Ms Skinner, in a direct manner, informed Leading Senior Constable Jones that the accused did not wish to participate in an interview with police and, further, that the accused would not consent to the taking of her DNA, but would comply with any order made requiring her so to do.
Notwithstanding this information, which was promptly conveyed to them, at about 11am DSC Lugsdin and Detective Heffernan attended at the charge room area of the Bega Police Station and escorted the accused to the Interview Room.
According to DSC Lugsdin's evidence the following exchange took place prior to the accused being taken to the Interview Room: Lugsdin: "Alright Rosemary, what I'm going to do now is interview you in relation to the matter, so can you please accompany me to the Interview Room." Accused: "I've been told not to be interviewed or go into an Interview Room." Lugsdin: "In fairness to you Rosie, I would like to interview you and inform you of the allegations." Heffernan: "You have been given that advice, but it is your decision whether you want to be interviewed or not. That is your decision to make and we have further allegations we would like to inform you about." Lugsdin: "Rosie, in fairness to you I would like to inform you of further allegations and I would like this recorded in the Interview Room. Will you come with me and Detective Heffernan to the Interview Room? As Detective Heffernan said, you have been given advice but it is your decision whether you want to be interviewed or no." Ms Gunning: "Rosie, I think it would be good for you to hear the allegations." Accused: "Alright, but I'm not saying anything." Lugsdin: "In fairness to you Rose, we can inform you of those allegations and it is up to you whether you answer any questions."
The accused then was interviewed, commencing at about 11.05am and eventually concluding at 4.08pm. In the course of that five hour period, the interview was suspended on a number of occasions. The first occasion was when Ms Gunning, the support person, had to leave the interview. The interview was suspended for about five minutes between about 11.55am and midday.
The second suspension occurred at about 1.36pm, because it was necessary for the police to apply for the extension of the investigating time through the mechanism of a detention warrant, which was subsequently granted at the Bega Local Court. That suspension lasted approximately 80 minutes, by which time Ms Gunning had returned. The interview recommenced at 2.54pm and continued through until 4.08pm.
At the time that conversation took place, DSC Lugsdin accepted that she knew that the accused had received advice from the ALS that she should not participate in the interview, and that the accused had said that she did not wish to participate in the interview. DSC Lugsdin also accepted, in cross‑examination, that the accused had indicated to her, plainly, and without ambiguity, that she (the accused) did not wish to be interviewed, and did not wish to answer any questions which investigating police might pose to her.
DSC Lugsdin also agreed that, notwithstanding the accused's attitude to being interviewed, she took her to the Interview Room without giving her any choice as to whether or not she could accompany the police to that room. DSC Lugsdin agreed that in taking the accused to the Interview Room, she was not "… interested so much in [the accused's] rights as being interested in getting [the accused] into an Interview Room and putting her before a camera".
DSC Lugsdin gave these answers in the course of questioning by the Court: "Q. … You know that the lawyer had said she doesn't want to be interviewed, and she has told you she doesn't want to be interviewed. A. Yes. Q. … You and Detective Heffernan are attempting, notwithstanding what you've been told, to persuade the accused to have an interview? A. Yes. Q. And that was your intention? A. To interview her. Q. To change her mind? A. Yes. Q. To override the legal advice she had been given? A. Yes. Q. To get around it and interview her notwithstanding it? A. Yes."
At and shortly after the commencement of the interview which was recorded on video, the accused was asked these questions and gave these answers: "Q6. Your rights were explained to you by the Custody Manager and you were given a copy of them. Do you want to exercise any of your rights now? A. I'm not participating in the interview. … Q15. Do you agree to be interviewed electronically? A. No."
DSC Lugsdin agreed when she heard the first of those two answers that she knew that the accused did not wish to participate in an interview and that that was consistent with what the accused had previously said.
The following evidence was then given by DSC Lugsdin in answer to questions from the Court: "Q. Did you stop the interview at that point? A. No, I didn't. Q. Why not? A. In the next question, I said, I asked her, did she agree that we had a conversation that in fairness to her, I explained the allegations in the interview and then she said 'Yes'. And then it just went on from there. Q. But what is fair about explaining allegations to an accused on camera in a video Interview Room where the accused has said 'I don't want to participate in an interview'. What is fair about that? A. Just to record the fact that we have outlined all the allegations to her and … Q. But on the interview, you've got the commencement, the formal part. You want to interview her. There was a support person present? A. Yes. Q. She has given you … her details, you have said 'I'm going to ask you questions about the murder and those questions and answers will be recorded. Do you want to exercise any of your rights?' 'Yes, I'm not participating in an interview'. Now, pause there. You have that declining to participate recorded for your purposes on a video. A. Yes. Q. So that there can be no doubt, for example, if it was later said that no opportunity had been given, you had that recorded? A. Yes. Q. You accept that she has a right not to participate in the interview? A. Yes. Q. Because you asked her if she wants to exercise that right? A. Yeh. Q. And she says 'Yes I do'? Is that right? A. Yes. Q. And you then say, 'Well, notwithstanding that, I'm going to continue this interview'. You are overriding, you knew you were overriding her wishes? A. Yes. Q. And overriding her rights. Is that right? A. Yes. Q. And you deliberately continued? A. Still explaining, yes."
DSC Lugsdin later agreed in cross-examination that notwithstanding that, in the course of the interview the accused had said that she was not saying a word and that she did not wish to answer questions, she (Lugsdin) had kept asking questions.
As has earlier been remarked, this interview then continued for a total of five hours together with the interruptions earlier detailed. During the course of the interview the accused had played to her a series of telephone intercepts, and also the recording which was made by the undercover operative on 27 November 2015.
In the course of the recorded interview with DSC Lugsdin and Detective Heffernan, those recordings were played, stopped from time to time and the accused was interrogated about what she had said on those recordings.
At about 3.30pm, Ms Gunning interrupted the questioning to inform DSC Lugsdin that the accused was a diabetic and that she needed to eat something. The accused responded that she was not hungry and Ms Gunning said this to her: "OK. I know you're not hungry but it will help you think clearly so that you can answer truthfully, just to eat a couple of bites of something, 'cause we pushed your blood sugar up a bit with your fruit juice … "
Detective Heffernan left the Interview Room to obtain some sandwiches. Shortly before he returned, Ms Gunning said to the accused: "You want to tell the truth, but you're struggling to think clearly, so having something to eat will help your sugar levels stable and you'll be able to think clearer."
The accused declined to eat anything or to have the cup of coffee that was offered saying, in effect, that she did not care anymore.
Initially, the Crown proposed to tender this record of interview, and a further one which had been taken by DSC Lugsdin after the accused was in custody on 9 February 2016.
Order 2 of the Notice of Motion was directed to precluding the admission of these interviews.
Having regard to what the accused had said to the investigating police about her unwillingness to be interviewed or to answer any questions, the knowledge of the investigating police that she had received legal advice to that effect and the knowledge of the investigating police that she wished to exercise her rights to remain silent, it is, to say the least, surprising that an investigating police officer could have proceeded in the manner which DSC Lugsdin did. That is, to take the accused to the Interview Room without giving her any choice and then to proceed over a lengthy period to interview her intending, notwithstanding the accused's assertion of her legal rights, to override those rights and obtain admissions from her with respect to the offence.
On the morning of the second day of the hearing of the interlocutory proceedings, the Crown Prosecutor informed the Court that, having considered the evidence which had been adduced from DSC Lugsdin on the first day and the contents of the records of interview, the Crown did not press for the admission of those records of interview. Accordingly, there is no need, now, for the Court to make Order 2 as sought by the accused in her Notice of Motion.
However, this material remains of relevance to the consideration of the admissions upon which the Crown wishes to rely that the accused made to DCI McNeill shortly after the record of interview was completed.
It is necessary now to turn to the particular facts relating to those admissions.
According to the account given by DCI McNeill, he was present in the detectives' office whilst the accused was being interviewed. He was informed by DSC Lugsdin about the progress of the interview and he learnt that it had been concluded. He also knew that, from DSC Lugsdin's account, the accused had not made any admissions in the interview.
According to DCI McNeill's statement, he went into the Interview Room at the Bega Police Station shortly after 5pm intending to have a conversation there with the accused. He said that she was present in the Interview Room at that time. It appears from his statement and evidence that he entered the interview room shortly after the conclusion of the interview.
He said in his evidence that since the interview had concluded, the police investigations had been completed and that the accused, an Aboriginal woman, was going to be charged with murder, he went there to make sure she was OK, and to give her any personal assistance that she might need.
He said that after a conversation, which it will be necessary recount later, he took her from the Interview Room into the Charge Room and attempted to do some things associated with her welfare.
The Custody Management records however show something quite different. According to the Custody Management record, at 4.17pm the process of charging the accused with the offence of murder commenced. She had been returned to the Charge Room by DSC Lugsdin and Detective Heffernan. At about 4.37pm, the Custody Manager, Leading Senior Constable Jones, spoke with the accused's solicitor about the undertaking of a forensic procedure, namely a buccal swab. There were a series of telephone conversations between the solicitor and Ms Gunning, the accused's support person, and the accused. The solicitor then spoke to the police officer who was to be responsible for the forensic procedure. Ultimately, the solicitor spoke with DSC Lugsdin. At 4.50pm the accused was taken to the "forensic procedure room" and a buccal swab was taken. She was returned to the Charge Room at about 5.03pm.
The evidence of DSC Lugsdin, supported by the floor plan of the Bega Police Station which was tendered, was that as at December 2015 there was no separate forensic procedure room. Rather, forensic procedures of the kind which were undertaken in this case, namely the obtaining of a buccal swab, took place in the Interview Room.
Accordingly, it would appear that DCI McNeill went into the Interview Room immediately after the forensic procedure had been completed and some considerable time, in the order of an hour or so, after the formal interview had been completed.
According to DCI McNeill, he had a conversation with the accused which he described in this way in his statement: "9. On Tuesday the 1 December, 2015, I was at the Bega Police Station throughout the day. Shortly after 5pm I went to an Interview room within the police station where I saw the accused Rosemary MACKIE. I said, 'Rosemary how are you.' She said, 'I am a bit scared.' I said, 'I am aware that you have completed an interview with Sarah. I am the aboriginal issues officer of the LAC. I want to make sure that you do nothing silly, by that I mean self-harm. I am not here to interview you. I am not recording our conversation. If you say anything to me in relation to the murder I will tell Sarah and if you wish you can speak to her later. Do you need anything?' She said, 'I have my medication at home and I need that.' I said, 'I will get Detective Maher to write something in his notebook so that you give us permission to go into your room and get the stuff.' She said, 'Okay.' I said, 'I will try and get onto Donna Wade from Katungal and let her know that you are here. You will probably be going to Batemans Bay and if you do I will let Jo Grant know so they can make sure you are okay.' She said 'I didn't mean to do it.' I said, 'Why don't you tell Sarah that?' She said, 'I am scared?' I said, 'Well what you have to do is speak to your solicitor and discuss it with him. If you want to be interviewed again you can contact Sarah and she will speak to you again.' She said, 'Okay'. 10. I said, 'Now you need to eat something, can you please have just one of these little triangle sandwiches.' She said, 'I feel sick.' I said, 'You may feel sick but if you don't eat you will get sicker.' She said, 'You are just like my son.' I said, 'Well once you eat and go into the charge room you can contact whoever you like and have a chat with them and let them know what is happening.' I had a further chat with her and took her to the charge room to where Senior Constable JONES was. Whilst in the change room I continued to talk to Rosemary in an attempt to get her to eat some sandwiches. She finally agreed and commenced to eat the sandwiches. 11. Whilst eating the sandwich she said, 'I didn't mean it.' I said 'Well you should talk to your solicitor and tell him. We would like to know the truth. I also think Marnie's mum would like to know the truth.' She said, 'I know Marnie's mum.' I continued to talk to Rosemary making sure that she was okay. During the conversation she said to me, 'I hit her in the bathroom (incorrectly written in notes laundry) with the blocksplitter, Bernie strangled her with a blue rope. I went to Probation and Parole then to Centrelink then home and I rang Bernie. He comes over and I go to his place. Marnie and Bernie are there doing cones. I got angry, she is always there getting in the way, she goes to the bathroom and I hit her and then Bernie strangles her with the blue rope.' I said, 'You should tell your solicitor that and arrange an interview with Sarah.' She said, 'I will do that.' …"
It is these conversations which the Crown seeks to tender, and which the accused objects to. As well, there is one further short conversation upon which the Crown also seeks to rely.
After the conversation set out above in paragraph 9 of his statement, DCI McNeill went and spoke to DSC Lugsdin. He brought DSC Lugsdin back into the Interview Room where the accused still was and said to her (the accused): "Rosemary, you spoke to me before about what you did, tell Sarah what you told me about what you did?"
A further admission followed. The Crown does not seek to tender this admission, which was made without DSC Lugsdin giving the accused an appropriate warning. However, at the end of the discussion between the accused and DSC Lugsdin, DSC Lugsdin said, amongst other things: "That's alright Rosie, sometimes people lie when they have done the wrong thing it is common, especially if you think you will get into trouble. When you speak to a solicitor I will interview you again. I want you to tell me the truth when I speak with you again. I will give you my card with my name on it."
DCI McNeill then said in his statement that he went back and forth to and from the Charge Room on a number of occasions, in the course of which the accused said: "I didn't mean to do it … I am scared … I got angry."
He recalled saying to the accused: "Rosemary, I've been in the job for too long, I don't need to hear bullshit but if you wish to tell the truth ring Sarah after you speak to your solicitor."
The accused objected to the admission into evidence of the statements which she made to DCI McNeill. In so doing, she submitted that: 1. the statements were made in the course of official questioning by an investigating official and that, accordingly, pursuant to s 281 of the Criminal Procedure Act 1986 and given that there was no reasonable excuse why a recording of the admissions was not made, the evidence is not admissible; 2. under s 138 of the Evidence Act 1995, the accused submitted that DCI McNeill was an investigating official for the purpose of the Evidence Act and that the evidence in the statements made by the accused were obtained improperly because the accused was under arrest at the time of the statement, she was questioned by an investigating official, and no caution had been administered to her; 3. the evidence is inadmissible pursuant to s 84 of the Evidence Act because the oppressive nature of the accused's dealings with police occasioned through the five hour period of the impugned record of interview would inevitably have influenced the accused to make the statements which the Crown now seeks to tender. The accused points to the fact that she told DCI McNeill that she was scared at the time; 4. the evidence is inadmissible pursuant to s 85 of the Evidence Act in circumstances where the nature of the questioning which had occurred by DSC Lugsdin, which included an exhortation to tell the truth, and a similar exhortation by DCI McNeill combined with all other surrounding circumstances, all pointed to the fact that it was inappropriate to allow the admissions into evidence; and 5. pursuant to s 90 of the Evidence Act, it would be unfair to use the evidence of the various admissions made to DCI McNeill against her because it would be unfair to her to use the evidence having regard to all of the circumstances in which the admission was made.
Section 281 of the Criminal Procedure Act makes an admission by a person suspected of having committed an indictable offence, and which is made in the course of official questioning, inadmissible unless a recording is made of that admission, the recording is made available to the Court, or the prosecution establishes that there was a reasonable excuse as to why a recording could not be made.
The prosecution did not attempt, in the circumstances of this case, by evidence to establish that there was any reasonable excuse as to why a recording of the admissions by the accused to DCI McNeill could not have been made. That is unsurprising considering the admissions were made in the Bega Police Station at a time when there was clearly operable recording equipment available, not only in the station generally, but immediately available in the Interview Room.
As well, there is no doubt that the accused was, at the time of these admissions, suspected of having committed an offence which was strictly indictable. After all, at the time of making these admissions, the accused had been arrested for having murdered the deceased. Whether her charging had been completed is unclear. The issue which the accused had to prove was that the admissions were made in the course of official questioning.
The Crown submitted that any discussions between DCI McNeill and the accused which gave rise to the admissions upon which they wished to rely, were not made in the course of official questioning.
It is necessary, therefore, in order to resolve this objection, to determine the issue between the parties as to whether the admissions were made in the course of official questioning. Official questioning is defined in s 281 of the Criminal Procedure Act in the following way: "Official questioning means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence."
An investigating official, for the purposes of s 281(4)(a) of the Criminal Procedure Act means a police officer. DCI McNeill fell within the meaning of the phrase "investigating official".
However, as the authorities show, determining the content of official questioning, and whether as a matter of fact that was occurring, is rather more complex.
Wood CJ at CL in R v Horton (1998) 45 NSWLR 426, was persuaded that an earlier, but identical, version of s 281 ought be regarded as protective legislation which had the consequence that, in the absence of a clear legislative intention to the contrary, it ought not be read down but should be given its full effect. His Honour also held that the mischief to which such legislation was directed was: "… to ensure the integrity of the evidence of police witnesses concerning representations of any form attributed to accused persons, and to provide an objective means of resolving any dispute concerning that kind of evidence."
The High Court of Australia in Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 considered Tasmanian legislation which was in essentially identical form to s 281. There the majority held that a person may make admissions during official questioning without those admissions necessarily being responsive to any particular question. At [45] Gleeson CJ, Hayne and Heydon JJ said: "The words 'in the course of' do not require that there be any causal connection between the admission and the official questioning. Thus, 'a monologue in response to a general enquiry about what had happened' has been held to be in the course of official questioning for the purposes of s 85 of the Evidence Act 1995 (NSW) and an answer volunteered by the person being questioned is in the course of questioning even though it is not directly responsive to any question." (footnotes omitted)
At [52] their Honours said: "The expression 'in the course of official questioning' … marks out a period of time running from when questioning commenced to when it ceased."
Howie J concluded in R v Naa [2009] NSWSC 851; (2009) 197 A Crim R 192 that an admission made during the course of a police stand-off, at a time when police officers were armed with weapons trained on the accused, and when the officers were attempting to build some rapport with the accused so as to peacefully end the confrontation, could not be described as official questioning. His Honour was persuaded that there may be some police procedures before or after an arrest that did not fall within the ambit of s 281 "… because they are not in connection with an investigation …" at [77].
In his evidence, DCI McNeill said that he had been in Bega Police Station on 1 December 2015 for two reasons or, put more informally, wearing two hats. The first was as the senior detective in the LAC to provide resources and support to his detectives and ultimately being responsible for all that was being done in the operation which involved the arrest and questioning of the accused. The second role which DCI McNeill was performing was to be the Aboriginal Issues Officer who would attend to any issues relating to the indigeneity of the accused.
DCI McNeill denied that, in the course of opening the conversation with the accused, he gave her the impression that he was not involved in the investigation. He was asked whether he told the accused that he was not recording their conversation because he wanted to give her the impression that he was not involved in the investigation. His answer was: "No, I think she knew that. I'm pretty sure she knew that. She knows my role, she knows that I'm a Detective Chief Inspector in charge of the Far South Coast Command, so that was a given for me."
DCI McNeill accepted that the accused might well have thought that, in light of everything which had been said and the facts and circumstances which preceded their conversation, what she said to him would be "off the record". His evidence was this: "Q. Considering the situation she found herself in, you saying to her, 'I am here to interview you', I'm sorry 'I'm not here to interview you, I'm not recording our conversation' - did you think that she might interpret that as meaning that nothing she said to you would play any part in the case against her? A. No. Q. So you turned your mind to that, did you, at the time? A. … I didn't think about what you have said. Q. So you didn't say, 'Just look, if you say anything to me about the murder, I will tell Sarah, and if you wish to, speak to her later'. You started by telling her that you weren't there to interview [her] and you weren't recording the conversation. Do you accept that, looking at it now, that that may well have left her with the impression that, since the interview was over and the conversation wasn't being recorded, anything that she said to you about it was effectively off the record? A. She could have thought that, yes. Q. That would be quite a rational process for her to have done wouldn't it, to have thought that in those circumstances? A. She could've thought that, yes."
He also gave this evidence: "Q. When you first said to her, 'If you say anything to me in relation to the murder I will tell Sarah, and if you wish you can speak to her later', you said that to her, but you didn't say also 'If you say anything to me it can be used against you'? A. No, I didn't say that. Q. But you knew that if she said anything to you, it could be used against her, didn't you? A. It could be, yes. Q. And not just could be, would be if the prosecution could manage it? A. I also have, the Evidence Act requires you to record those conversations, and in those circumstances then you have to use them, so that's how they get admitted."
Further on, he gave this evidence: "Q. You see, you knew that if she said to you 'I did it', you would use that, insofar as you were able to, so it became part of the case against her? A. Insofar as I'm able to, yes. Q. But you didn't tell her that you would use any admissions in that way, did you? A. No, I didn't."
In considering the issue of whether what transpired between DCI McNeill and the accused constituted official questioning, it would be wrong to confine the official questioning just to the period of time in which the interview conducted by DSC Lugsdin took place in the Interview Room. There is no doubt that DSC Lugsdin's interview fell within the phrase "official questioning".
To do so would be to ignore the reality of what occurred. In the first place, the accused was arrested, given the appropriate warning and then brought to the Bega Police Station. There she was informed that the police wished to interview her. She took advice about that, as I have earlier recounted. Notwithstanding the advice she received, she was taken by the police and put into the Interview Room. There she was subjected to questioning for over five hours with the breaks which I have detailed. Having been removed from that room and charged, the accused was then taken back into it and subjected to a further investigative procedure to which she did not consent, but to which she submitted once an order had been made.
In the course of that forensic procedure, although the evidence does not provide complete detail of it, I infer that the accused would have been subjected to some, at least, formal questioning for the purposes of that procedure.
Almost immediately upon the conclusion of it, the accused was again spoken to in the same room, by DCI McNeill. He was the officer who had ultimate responsibility for the investigation. According to his evidence, the accused would have understood that he was both the senior detective in the LAC and also the Aboriginal issuer officer.
In my view, the questioning fell within the expression "in the course of official questioning". The police were not engaged in some peripheral activity. On the contrary, the accused was in the process, speaking generally, of being arrested, charged, questioned, and the subject of a forensic procedure. All of this was in the police station. DCI McNeill, when he went to speak to the accused, intended that anything which the accused said to him which implicated her in the commission of the offence would be recorded by him in the sense of it later being written down, and that it could be tendered in evidence against her if legally permissible. In other words, he was not engaged in an activity which had nothing whatsoever to do with the official investigation of the accused. His discussion with the accused was an ongoing part of that overall investigation, arrest and charging procedure and, so it seems to me, official questioning.
The position of DCI McNeill is to be contrasted with that of the Custody Manager. The Custody Manager has no role to play in the investigation of the crime. The task of that officer is to ensure that a person charged with an offence is dealt with in accordance with proper police procedure. If that officer was to make an enquiry with a charged person about, for example, the notification of a relative and received a voluntary admission, then it may be difficult to conclude that such an admission came in the course of official questioning. But it seems to me that when a charged person is in the confines of the interview room at a police station whilst the arrest, interviewing, evidence gathering and charging process is taking place, and that person is spoken to, in that environment, by the senior detective in charge of the LAC, and ultimately of the whole investigation, such questions as may be asked and such answers as may be given fall within the course of official questioning.
For that reason, I am satisfied that the admissions made by the accused to DCI McNeill, both in the Interview Room and later in the Charge Room area, were admissions made in the course of official questioning. They were made to an investigating official, namely a police officer, and accordingly, on the evidence before me where the prosecution did not attempt to establish any of the alternatives referred to in s 281(2)(a) or (b), the admissions made to DCI McNeill are inadmissible.
If I be wrong in the conclusion about official questioning, then it is necessary to consider the objection of the accused based upon the other provisions of the Evidence Act.
Counsel for the accused submitted that the admissions to DCI McNeill were influenced by oppressive conduct towards the accused within the meaning of s 84 of the Evidence Act. Counsel submitted that oppressive conduct was constituted by the fact that the accused was subjected to a lengthy interview process by DSC Lugsdin, over her protestation that she did not wish to be interviewed, in light of all of the circumstances including nature and content of the questioning having regard to the accused's mental vulnerability.
It is necessary to consider whether such conduct as is described, constitutes oppressive conduct for the purposes of s 84 of the Evidence Act. The "oppressive conduct" is nowhere defined in the Evidence Act, however it has been held that it is not necessary to isolate a single incident of conduct which provokes an admission as constituting oppressive conduct: R v Ye Zhang [2000] NSWSC 1099; Higgins v R [2007] NSWCCA 56 at [26] per Hoeben J (with whom Sully and Bell JJ agreed). As Hoeben J said at [26]: "I also accept that there is no definition of "oppressive" in the Act and that the concept should not be limited to physical or threatened physical conduct and can encompass mental and psychological pressure."
The decided cases do not proscribe the boundaries of oppressive conduct.
The Court of Appeal considered the meaning to be given to s 84 in Habib v Nationwide News Pty Ltd [2010] NSWCA 34; (2010) 76 NSWLR 299. At [241], their Honours said: "241 In R v JF (at [37]), Refshauge J commented that because the effect of s 84 was "…automatic exclusion of the confession, with no discretion, and a relatively low threshold of causation, it does seem that the conduct involved should be of a relatively significant level of impropriety". With respect, that imposes a gloss on the section which, in our view, is not warranted by its language. The only question s 84(1) poses is whether the "admission and [its] making" were "not influenced by" conduct of the nature identified. At best, as was said in Heffernan (at 22), the wide scope of the section in its application in both civil and criminal proceedings is a reason for not giving "an expansive meaning to 'oppression' in s 84"."
Hamill J, in R v Sumpton [2014] NSWSC 1432 held at [123] that the concept of oppressive conduct should be read ejusdem generis with the other proscribed conduct identified in s 84. He said: "That is, the meaning of oppressive conduct should draw some meaning and content from the fact that s 84 also refers to 'violent, inhuman and degrading conduct'."
Hamill J in Sumpton also held by reference to the decision of the UK Court of Appeal in Regina v Fulling [1987] QB 426, that conduct in the case which he was deciding could properly be described as oppressive in circumstances where: "It involved the exercise of authority and power in a burdensome, harsh and wrongful manner and imposed on the accused unreasonable and unjust burdens."
In circumstances where an objection under s 84 is raised, the terms of the section have the consequence that the prosecution bears the burden of demonstrating that the admission and the making of the admission was not influenced by, in this case, oppressive conduct towards the person who made the admission.
As is clear from the short review of the relevant authorities, oppressive conduct does not have to be perpetrated by the person to whom the admission is made. On the contrary, the totality of the facts and circumstances leading up to the admission which, here, means examining all that occurred at the Bega Police Station prior to the admissions being made, may be relevant in considering whether oppressive conduct occurred and, if so, whether the prosecution has persuaded the Court that the admissions were not influenced by that conduct.
The submission of the accused is that the conduct of the police, in particular DSC Lugsdin and Detective Heffernan in the course of the recorded interview between about 11am and 4pm, was oppressive and that having regard to the fact that the accused had been returned to the Interview Room where the conversation with DCI McNeill initially took place, it could not be said that the earlier oppressive conduct had ceased to have any influence on the accused at the time she made the admissions.
In my view, these submissions should not be accepted. Having said this, I am satisfied that the conduct of the police and the manner in which they dealt with the accused in the record of interview can properly be described as the exercise of authority and power in a wrongful manner. That is because they failed to accord to the accused her lawful right not to be interviewed and to give effect to her request not to be interviewed and, in so doing, placed an unreasonable burden on the accused, particularly by the interviewer's exhortation to the accused to tell the truth, thereby constituting oppressive conduct.
Despite my finding that the conduct of the police in interviewing the accused constituted "the exercise of authority and power in a burdensome, harsh and wrongful manner" (in the words of Hamill J), I am not convinced that such conduct reaches the threshold of conduct which is proscribed by s 84 of the Evidence Act and which is described as "violent, inhuman and degrading conduct". There is some tension between these two descriptions of "oppressive" in s 84 of the Evidence Act.
Nevertheless, it is not necessary for me to resolve this tension since I am not persuaded that by the time DCI McNeill entered the Interview Room to speak with the accused, any effects of that conduct were still operative.
By the time DCI McNeill entered the Interview Room about one hour had passed since the conclusion of the formal interview. During that period of time, the accused had been moved between locations and had spoken to and received advice from a solicitor about the proposed forensic procedure. The accused would have realised that at the time she was speaking to DCI McNeill, neither DSC Lugsdin nor Detective Heffernan, the two interviewing detectives, were in the Interview Room and that DCI McNeill had not at that time treated her in any way that mimicked the way in which the accused had been spoken to during the recorded interview. The accused herself has not given evidence on the voir dire that at the time she was speaking to DCI McNeill, she felt overwhelmed or else adversely affected by what had occurred. There was no indirect evidence of the accused's feelings of this kind.
In those circumstances, I am satisfied that the Crown has demonstrated the absence of any influence on the accused of the impugned conduct, when she spoke with DCI McNeill.
I would not reject the evidence pursuant to s 84 of the Evidence Act.
It is convenient to deal here with the accused's objection to the admissions being permitted to be adduced in evidence pursuant to s 138 of the Evidence Act. That section provides for the exclusion of improperly or illegally obtained evidence. It requires as a threshold matter that the accused establish that the evidence i.e. the admissions made to DCI McNeill, were obtained improperly or in contravention of an Australian law, or else in consequence of such impropriety or illegality.
The accused submitted that, as with s 84 of the Evidence Act, the evidence was obtained as a consequence of impropriety because, whilst no impropriety was suggested directly on the part of DCI McNeill, at the time she made the admissions to him, the accused was under the continuing influence of the earlier impropriety of DSC Lugsdin in her conduct of the recorded interview.
I have found that, with respect to s 84 of the Evidence Act, at the time of the discussion with DCI McNeill, the earlier impugned conduct of DSC Lugsdin had ceased to have any operative effect on the accused. I am satisfied such a conclusion means that the accused fails to meet the threshold for s 138 of the Evidence Act, namely that the evidence was obtained in consequence of an impropriety.
Accordingly, I would not uphold the accused's objection under s 138 of the Evidence Act.
The accused also relies upon the provisions of s 85 of the Evidence Act.
Section 85 will apply to the admissions here, if the admission was made by an accused to an investigating official who at that time is performing functions in connection with the investigation of the commission of an offence. According to the dictionary to the Evidence Act, an investigating official includes a police officer. DCI McNeill accepted that at the time the admissions were made to him, he was performing functions in connection with the investigation of the commission of an offence. That was because he was present in Bega Police Station for two co-existing reasons. The first was as the senior detective in the LAC to provide resources and assistance to the investigating officers, and the second was as the Aboriginal Issues Officer for the LAC.
True it is that in commencing the particular discussion with the accused, DCI McNeill introduced it by referring only to his role as the Aboriginal Issues Officer, however, for the purposes of s 85, he was still at that stage a police officer who was performing his functions as a detective in overall charge of the investigation. He did not renounce those functions whilst undertaking this questioning. Moreover, as he agreed, he fully intended to record any admission which the accused might have made by making a written note at the conclusion of his interview. Further, he fully intended that any such admission would be used in evidence against the accused if it was lawfully permissible. It cannot be said that DCI McNeill had abandoned his role as the detective in overall charge of the investigation.
Accordingly, s 85 applies to the admissions made to DCI McNeill by the accused. The next matter for the purposes of s 85 is to consider whether: "(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected."
Section 85(3) requires the Court, in addition to any other relevant matters, to take into account any relevant condition or characteristic of the person who made the admission, including any mental disability to which the person was subject. As well, if the admission was made in response to questioning, the Court is to have regard to the nature of the questions and the manner in which they were put and any inducement which may have been made to the person questioned.
The accused submitted that the entire circumstances of the recorded interview, but in particular the fact that the accused attempted to tell the police that she did not want to answer any questions (see Qs 6, 15, 32-34, 41, 50, 58, 61-63, 66, 69-71, 88, 104, 106, 112, 115, 116 and 120 of the recorded interview) and, more importantly, that the accused was being effectively cross-examined by the police with exhortations to tell the truth, meant that by the time DCI McNeill enquired after the accused's welfare, she was still under the exhortation to "tell the truth".
The accused pointed to the following questions and answers in the record of interview: "Q170. [13.35] As I said, murder is quite … obviously … a serious thing to say that you've done. A. I know that. 'Cause I feel stupid, that's why. That's all I say, if you want to just lock me away I don't care. Det. Snr. Const. Heffernan: Q171. It's not a case of locking you away Rosie. … what the case is, the case is getting to the truth. A. I'm telling you the truth. … Q233. … Now that we've told you certain information now that this, this blockbuster does exist and Bernie did it all. A. Like I said before, just take me away. I don't care anymore. Q234. All we want is the truth Rose. A. I'm tellin' you the truth. … Q244. How did you come up with that part of the story in the recording, 'cause you wouldn't have read that anywhere? A. He kept saying 'just make up stories'. Q245. Well that's why I'm asking you. How did you make up that part of the story? A. Don't know. I don't know. Q246. And in regards again to that recording, you said that you put Marnie's body, or Bernie put Marnie's body in the boot and it was in there most of the day. Where did you come up with that part of the story, 'cause you wouldn't have read that anywhere? A. I just, well, take me away. Q247. Well, tell us the truth. A. That's what's gunna happen anyway. Youse gunna take me away anyway, so it doesn't matter whether I've got a friggin' life no more. Q248. Well the truth does matter, Rosie. It, it matters in regards to you, it matters in regards to Marnie's family, in regard, the, the truth matters in regards to the community, it, it, it matters in regards to a lot of people. A. How do you think I feel? She's my friend. Q249. Exactly right. So tell the truth. A. I'm tellin' the truth. … Q267. So you stayed with Bernie on the Tuesday night. A. Mmm. Q268. Are you telling us the truth? A. Oh, it's all a blur. It's all … … Q348. So again, I get back to the point that you've said when we came back in here that you're telling the truth, and now you've just come up with another red herring about the two to three hours whilst you were at Bernie's on the Tuesday. And not only is it, you know, I, I, 'I might have been mistaken. I went to Bernie's but that wasn't that Tuesday. I walked there. Oh, this is the side of the street I walked. This is the direction I walked. This is the way I walked home. I remember then going to Capital Pathology'. Like, what is the truth Rosie? A. I don't frickin' know what the truth is anymore. I just can't remember."
In submissions, the accused drew attention to the fact that, as set out above in paragraph 11 of DCI McNeill's statement which appears at [78], he too exhorted her to tell the truth. In particular, the accused's submissions drew attention to the fact that DCI McNeill had said that the deceased's mother would like to know the truth. She further submitted that it was only after those two exhortations that further admissions as to the detail of what steps the accused had taken were given to DCI McNeill.
Having regard to those matters, the accused submitted that the circumstances were such that the Crown needed to demonstrate that it was unlikely that the truth of the admission was adversely affected, and that the Crown had not discharged that burden.
I do not accept this submission. The circumstances, including the exhortations to tell the truth, are far more likely to have led not to the admission being inaccurate, untruthful or unreliable but, on the contrary, to the accuracy of the admission. In other words, if the accused accepted the blandishments of DCI McNeill to "tell the truth because the deceased's mother would want to know the truth" then such circumstances, so it seems to me, make it more likely that the admission would contain the truth, not less likely. Section 85 is directed to the likelihood of the truthfulness of the admission being affected by the circumstances in which it was elicited in the presence of the investigating official. I am not satisfied that the circumstances here were such as to affect the truth of the admission.
I do not uphold this objection.
Finally, the accused submitted under s 90 of the Evidence Act that it would be unfair to use the evidence of the various admissions made to DCI McNeill because, clearly, the accused was under the impression from all of the circumstances that she was speaking to DCI McNeill "off the record" and that as a consequence any admission made by her would not be tendered in evidence against her.
Section 90 of the Evidence Act provides as follows: "In a criminal proceeding the Court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence."
In Em v The Queen [2007] HCA 46; (2007) 232 CLR 67 at [56], Gleeson CJ and Heydon J said of s 90: "The language in s 90 is so general that it would not be possible in any particular case to mark out the full extent of its meaning. Whether or not the appellant was correct to submit that the primary focus of s 90 was on incorrect assumptions made by accused persons, there is no doubt that is one focus of s 90 … In any particular case, the application of s 90 is likely to be highly fact-specific."
At [94], Gummow and Hayne JJ said: "It should be observed that s 90 is cast in a form which differs from ss 84, 85 and 86. These set out rules whereby in stipulated circumstances evidence of certain admissions is not to be admitted. Section 90 empowers the court in a criminal proceeding to refuse to admit evidence adduced by the prosecution of an admission (not expressly limited to an admission by the defendant) where to use the evidence would be 'unfair to a defendant'."
They went on to say at [107]: "… the central issue is whether the evidence of admissions should not have been admitted because, having regard to the circumstances in which they were made, it would be unfair to the defendant to use the evidence. That question requires consideration of whether there was identified some aspect of the circumstances in which the admissions were made that revealed why the use of the evidence, at the trial of the person who made the admissions, 'would be unfair'. That is, the focus of s 90 falls upon the fairness of using the evidence at trial, not directly upon characterising the circumstances in which the admissions were made, including the means by which the admissions were elicited as 'fair' or 'unfair'."
Their Honours added at [114]: "The second consideration that is relevant to the present matter, and assists in demonstrating that s 90 is to be understood as a safety net which catches a residuary category of cases not expressly dealt with elsewhere in the Act, where use of the evidence at trial would be unfair, is the consideration of improper police methods. The appellant's central complaint in the present matter was that the police deceived him. He thought that what he said to the police was not being recorded, but it was. This complaint lay at the heart of his contention that s 90 should have been applied to exclude the evidence."
The factual circumstances which are relevant to the determination of this objection seem to me to be relevantly these: 1. when formally asked, whilst in the Charge Room area, whether she wished to be interviewed with respect to the offence for which she had been arrested, the accused, on the basis of legal advice, declined to be interviewed. The accused had received and was acting on legal advice to that effect, which advice had been communicated to DSC Lugsdin. Notwithstanding her expressed disinclination to participate in an interview, the accused was taken without choice, to the interview room by DSC Lugsdin; 2. the interview commenced at about 11am and concluded shortly after 4pm. There were breaks in the middle of the interview so that it was not continuous throughout that period. It was nevertheless a substantial period of time over which the interview was conducted, and during which the accused was formally interviewed and recorded; 3. the interaction between DCI McNeill and the accused occurred in the same Interview Room which had previously been used for the formal recorded interview. On that occasion, the interviewing officers had been careful, in accordance with accepted procedures, to inform the accused that certain things she said were being recorded, to give her the requisite warnings and to inform her that she would be provided with a copy of the relevant recording; 4. when DCI McNeill entered the Interview Room, although he continued to be the detective in charge in an overall sense of the investigation, he did not make it plain to the accused that anything which she told him would be recorded either in writing or in some other way, and would be used in evidence. He gave her no warning of the usual kind. On the contrary, he informed her that he was not there to interview her about the events which had occurred and he was not, he said, recording their conversation. What he held out to the accused was that if she told him anything about the murder, he would let the officer in charge know and the accused would have an option as to whether or not she would speak to that officer later to tell that officer what she had told DCI McNeill; 5. on a number of occasions during the discussion, in response to anything which the accused said which related to the offence, DCI McNeill told her to talk to her solicitor and tell him. At no time did DCI McNeill give the accused any warning that he was going to record, that is to say to note down, what the accused said and give it in evidence against her at any future trial; and 6. before significant admissions were made, DCI McNeill encouraged the accused, in the absence of a warning, to tell him the truth. To that he added the emotional pressure of saying to the accused that he thought the deceased's mother would like to know the truth.
There is no question that DCI McNeill, a very experienced detective and senior officer in the police force, would have known that it was appropriate to caution a person before having them say anything about their involvement in an offence. DCI McNeill was conscious before any conversation started, that he intended to record any admission made by the accused by making a note of it in writing as well as then involving DCI Lugsdin.
In my view, DCI McNeill, by using the words that he chose to use in the Interview Room without the recording equipment being switched on, and by telling the accused that he was not recording the interview, created a clear impression from which, I am persuaded, the accused would have readily concluded that anything which she said to him was "off the record".
The facts which point to that conclusion are: 1. DCI McNeill's opening statement to the accused that he was not there to interview her about the offence; 2. his statement to her that he was not recording their discussion thereby differentiating the facts and circumstances from the recorded interview which had earlier taken place; 3. his statement to her that if she told him anything about the murder, he would pass it on to the officer in charge, who would give the accused the option of being interviewed formally about that statement. In other words, she could elect whether to make a formal recorded admission to the detective in charge; 4. the absence of any warning being given to the accused that anything which she might say could be used in evidence against her; 5. DCI McNeill's intention, which was unrevealed to the accused, to make a note, i.e. a record, but not a "recording" of what was said to him by the accused if it constituted an admission; and 6. his exhortation to the accused that she should tell the truth and that the deceased's mother, who was known to the accused, would want to know the truth.
In my view, DCI McNeill's concession in cross-examination that the circumstances were such that the accused may well have formed the view that what she was saying was off the record, was correctly made, because all of the objective facts point to such a conclusion.
In my view, these admissions were made by the accused in circumstances which were fundamentally unfair to her. I am satisfied she thought that the admissions which she made to DCI McNeill were off the record. That was not DCI McNeill's intention in speaking to her. His intention was to record any admissions if they were made in the course of a conversation about the welfare of the accused. The admissions were made in circumstances where no warning was given of the ordinary kind. Such warnings are given to people suspected of committing offences because fairness and police practice requires them to be given.
I accept as is apparent from previous remarks in this judgment that the admissions made by the accused are of significant probative value. I also accept that the circumstances in which they were made do not cast any doubt upon their reliability.
Nevertheless, weighing up all of the circumstances in which the admissions were made to DCI McNeill, and in particular the conclusion I have reached that the accused was likely to have believed that such comments as she made to DCI McNeill were off the record, I am satisfied that it would be unfair to the accused to use the evidence against her, and that it is appropriate to refuse to admit the evidence tendered by the Crown of any statements made by the accused on 1 December 2015 to DCI McNeill.
Accordingly, I am satisfied that I should make Order 3 as called for in the Notice of Motion.

Order 1 - Admissions to Undercover Operative

Michael O'Brien, a pseudonym used to avoid revealing the true identity of a civilian undercover operative, who does not live or work in Bega or the Bega area, was retained by the police to travel from his home to Bega and to strike up a relationship with the accused. Mr O'Brien understood from the police that the accused was believed to have been involved in the death of the deceased. His task was to obtain from her admissions as to her role in that death.
Mr O'Brien has been engaged in like tasks over a period of about 20 years, and had been engaged by police in NSW on about 12 previous occasions in similar undercover work. Prior to his meeting with the accused, the police gave him some details about the death of the deceased, including where she had been found but not, initially, the mechanism of death.
At the time that Mr O'Brien set out to meet the accused, she was taking prescription medication for depression. She was also in a state of grief arising from the death of Mr Webber, generally referred to in the pre-trial proceedings as "Bernie", who had committed suicide on 21 October 2015. Webber was thought by police to have been the principle perpetrator of the murder of the deceased, Ms Cave.
In order to develop a relationship with the accused when he first met her by intentionally walking into her, Mr O'Brien informed her that he was a friend of Webber's from Western Australia where he worked in the mines. That was on Tuesday 24 November 2015. Mr O'Brien then set about developing a relationship with the accused which involving the strategy of being a long‑standing friend of Webber and coming to Bega to see if he could provide the accused with assistance, including moving her to another place to live. Over a short space of time, Mr O'Brien was able to develop a friendly relationship with the accused.
On 24 November 2015, after first meeting with her, Mr O'Brien and the accused went to the Commercial Hotel for lunch. He encouraged the accused to talk about her relationship with Webber. Initially the accused informed Mr O'Brien that the deceased had been murdered, but she did not provide any detail at all about any involvement which she or Webber had in the murder.
However, in the course of discussion on that day the accused did tell Mr O'Brien that she was somewhat jealous of the deceased, whom she thought was interfering in her relationship with Webber.
Mr O'Brien opened up the issue of the death of the deceased on that afternoon in this way: "I remember speaking to Rosie in the beer garden and I said 'Are you alright'. She said, 'Yeh'. I said 'I need to know what's happened to Bernie and I need to know what's happened to Marnie'. Rosie said, 'Bernie got rid of Marnie'."
This was the first attempt initiated by Mr O'Brien to obtain a full explanation from the accused with respect to the murder of the deceased.
Having stayed at the hotel for a good part of the afternoon consuming alcohol, Mr O'Brien and the accused parted and made arrangements to meet the following day, 25 November 2015. A conversation occurred later that evening by telephone between the accused and Mr O'Brien, which was intercepted and lawfully recorded.
On the morning of 25 November 2015, Mr O'Brien collected the accused from her flat in Bega and drove her to Merimbula, approximately 30km away. After visiting Merimbula, Mr O'Brien drove the accused to the Mogareeka Bridge at Tathra, which is where the deceased's body was located. He parked the vehicle on the northern side of the bridge and walked with the accused along the footpath on the bridge. As they were walking, Mr O'Brien asked the accused to tell him what happened there. The accused then gave a version of the murder of the deceased. In particular, the version given by the accused involved Webber using a blunt instrument to hit the deceased who was visiting the public toilet in the vicinity of the bridge at the time, and that a blue and yellow rope which was tied onto the bridge was then used to strangle the deceased.
According to Mr O'Brien's statement, he was told a number of different things by the accused with respect to the murder and he commented that the accused's version of events changed at times.
Later in the afternoon of 25 November 2015, at Club Bega, according to Mr O'Brien's statement the accused again gave another account of the murder.
On 27 November 2015, Mr O'Brien made arrangements to meet with the accused and spend some time with her. As it turned out, he spent about 2½ hours with her on the morning of that day, during which time all of his interactions with the accused were either recorded by means of a video camera which was installed in his car, or else by an audio facility, pursuant to a warrant issued under the Surveillance Devices Act 2007.
During the course of that morning, Mr O'Brien drove the accused to where Webber used to live. They entered the house and had a conversation there. After a while he drove her again to Mogareeka Bridge, stopped at the bridge and they then walked over it. He then returned to Bega. Later on in the afternoon of 25 November 2015, Mr O'Brien had a telephone conversation with the accused which was lawfully recorded.
Mr O'Brien gave evidence on the voir dire. In his evidence he described the accused's demeanour as being happy at times and sad at times, particularly when they spent time together on 27 November 2015.
Mr O'Brien told the Court that throughout the time he was in conversation with the accused, from 24 to 27 November 2015, she "… kept mentioning Bernie all the time, that she'd hear his voice, things like that", and further: "She liked to hear Bernie's name. She was - she was always talking about Bernie like waking her up, and Bernie's talking to her at the time. That's what she wanted to hear …"
He said that the accused had been the first in the course of their communications to speak of communicating with Webber in one way or another since his death and that in his discussions with the accused he had used the topic of communicating with Webber or Webber's spirit as a way of encouraging disclosures by the accused. .
Mr O'Brien reluctantly accepted in his evidence that, in the course of his working with the police, he had developed an expertise in assisting them by working in an undercover role. He ultimately agreed that having regard to the number of times which he had undertaken that role, he had become better each time. He said he had a natural talent for developing relationships with people and obtaining admissions. Again somewhat reluctantly, Mr O'Brien nevertheless agreed that his approach to the accused at a time when she was grieving for her late partner, Webber, had the effect of causing her to drop her defences to a degree. He also agreed this: "Q. And when you discovered that she had a belief that Bernie's spirit could be contacted, you took advantage of that, didn't you? A. Yes. Q. And you pretended that Bernie was bugging you, trying to … find out what had happened? A. I told her what she wanted to hear. Q. Yes. But you also told her that Bernie wanted her to tell you things. A. That's right."
Somewhat later Mr O'Brien agreed that he intentionally gave the accused the impression that Webber was speaking to him through the "spirit world" and that he would repeat that to her quite often. He agreed that he used the phrase "Bernie wants you to tell me what he done" or a similar phrase from time to time in order to obtain an admission from the accused.
In answer to the questions from the Court, Mr O'Brien agreed that he used the spirit of Webber to invite the accused to fully disclose what happened, because he said to her that "That's what Bernie would want you to do". He agreed that he also told the accused that Webber would be proud of her for telling him the truth.
Tendered, and marked as an exhibit, was an extract of the conversation between Mr O'Brien and the accused on 27 November 2015, as recorded in the transcript of the listening device used on that day, which notes and emphasises Mr O'Brien's exhortation to the accused to tell him everything which occurred, and his use of the "device" of Webber's spirit.
It is unnecessary to set out the entirety of those extracts to all of which I have had careful regard. However, the following give a sufficient impression - the timings on the tape are noted: 1. at 9:14, Mr O'Brien complained to the accused that Bernie had given him a "payout". He said that meant by that that Bernie had told him when he saw her, to check a couple of things with her; 2. at 14:02, Mr O'Brien was recorded as saying that "Bernie had been bugging me and bugging me"; 3. at 15:00, Mr O'Brien, having driven to Bernie's house was recorded as saying to the accused "You've got to tell me what's happened here, this is what he keeps saying to me. He said 'tell me I've got to bring you to the house and you tell me what's happened here'." Mr O'Brien went on to say a few minutes later this: "So what happened in the house, that's all I get coming to me? That's what I'm saying, we've got to level with each other because I'm trying to help you and the truth will set you free. I need to know exactly so then I can help you and then we just move once we're out of here, it's all forgotten. But you've got it, everything, that's, whatever's happening you must say, you know, you've got to get it off your chest. Cause he's just, that's what, that's what keeps coming at me [in] this house"; 4. at 17.59, whilst still at the house, Mr O'Brien asked, "What happened next? Right, just get it off your chest mate, that's why we've got to be honest with each other cause I'm trying to be your friend and this will all stop once you get it off your chest". He further said, "We've got all day mate, just take your time, you, once you get it off your chest today, we won't be bringing this up ever again. You understand? And then he'll leave me alone"; 5. after the conversation at the house, Mr O'Brien drove the accused to the Mogareeka Bridge. Upon arrival at the bridge, Mr O'Brien said to the accused that she needed to be honest with him and level with him. He again mentioned that the truth would set her free. At the bridge he, in effect, asked the accused to undertake a re-enactment of what had happened on the evening when the deceased's body had been brought to the bridge. At the bridge it became apparent that the accused was quite confused about what had occurred, and she was seemingly unable to describe accurately what had happened with the deceased's body. At one point (at 1.16.25) Mr O'Brien said: "Come back and have a think. You said when we were going over the bridge you were going to tell me when to stop. Bernie said you'd know where it was"; 6. on the return trip from Mogareeka Bridge, it was apparent that the accused thought that she was communicating directly with Bernie. Mr O'Brien joined in with that by telling the accused to tell Bernie to "snap out of it" (at 1.26.30); 7. on the drive back after that exchanged occurred, further detail was provided by the accused with respect to what occurred upon the evening of the death of the deceased. Undoubtedly some of that detail was incorrect by reference to objectively ascertainable facts.
This summary is sufficient to give an indication of the nature and extent of the materials which the Crown wishes to tender as constituting admissions, and the circumstances in which those admissions were obtained.
The accused submitted that the Court ought not permit the Crown to rely on these admissions. The objections are based upon the provisions of ss 84, 90 and 138 of the Evidence Act. With respect to the objection under s 84, the accused submitted that in his dealings with her, Mr O'Brien's conduct was psychologically oppressive of her when viewed in the light of the peculiar circumstances of her misplaced belief in the genuineness of their relationship and her isolated and emotional state. In particular, the accused points to the repetitive use of two techniques by Mr O'Brien, namely, a constant exhortation to tell him the truth in order to set her free or enable her to move forward, as a precursor step for him to provide the assistance that she wanted; and the invocation of Webber's spirit to justify her giving a full account of the events which occurred.
The accused submitted that the evidence demonstrates that she had a genuine belief that she could communicate with the late Mr Webber whereas, as a matter of objective rationality, such communication could not in fact have occurred. The accused submitted that the Court would infer that this was a delusional belief and that in light of that delusional belief the accused was vulnerable to any conduct of the kind that Mr O'Brien used which exploited that belief. In that way the accused argued that the conduct was oppressive within the meaning of s 84 of the Act.
The accused submitted that by reference to the contemporaneity of the admissions to the invocation of Webber's spirit by Mr O'Brien, it was demonstrated that the Crown has not discharged its onus of satisfying the Court that the oppressive conduct did not influence the accused in making the admissions.
As I have earlier remarked, the concept of oppressive conduct is not defined in the Act. It certainly can include psychological conduct.
In considering whether or not Mr O'Brien's conduct and that of the police in seeking his assistance, can be regarded oppressive conduct, it is necessary to have regard to all of the circumstances including any observation which can be drawn from the video recording of the accused as she talks to Mr O'Brien and from the audio recording of the same encounter on 27 November 2015.
It cannot be doubted that Mr O'Brien was engaged in an exercise of trickery and deception. He pretended to be someone who he was not, namely an old friend of the later Mr Webber. He pretended that he was going to help the accused deal with the aftermath of Mr Webber's death and all of her personal circumstances by assisting her to move out of Bega to Newcastle where her sister lived. He told her that he was going to provide transport to assist with that move. As well, Mr O'Brien engaged with the accused through her delusional belief that she was able to communicate with Webber's spirit. It was through a combination of those entirely deceptive pretences, and only by those pretences, that the admissions of the accused were obtained.
In considering oppressive conduct in the circumstances here, the question is whether the combination of the trickery and deception and in particular the invocation of Bernie's spirit placed undue psychological pressure on the accused such that it is possible that the admissions made by the accused were not made voluntarily because they have not been shown by the Crown not to have been influenced by the impugned conduct.
I have concluded from reviewing all of the evidence, that the accused has not satisfied me that Mr O'Brien's conduct towards the accused was oppressive nor that the police's conduct in combination with that of Mr O'Brien towards the accused was oppressive. It follows that I am satisfied that the admissions which the Crown wishes to tender are not inadmissible by reason of s 84 of the Evidence Act.
I have come to that conclusion because in viewing, listening to and reading the interaction between the accused and Mr O'Brien, it is not at all apparent that the accused felt under any compulsion at all to provide answers to Mr O'Brien's entreaties. She did so because she enjoyed a comfortable relationship with Mr O'Brien, albeit one of only a short period, and because she wanted his assistance to leave Bega and move to Newcastle. As it seems to me, the admissions by the accused were freely made, and often volunteered. In so doing, she showed no reluctance to describe any of the events which occurred. She did not protest at any time that she was uncomfortable in providing details of what occurred to Mr O'Brien, nor did she express any inhibition about doing so. Rather, it seems to me that the accused was willing to proffer the admissions because of the friendly relationship which had been engendered between Mr O'Brien and her. It was because of Mr O'Brien's pretence of being an old friend of Webber, and his pretence that he knew what Webber would want, that the accused disclosed the facts which she did.
I do not think that these features demonstrate oppressive conduct of the kind to which s 84 of the Evidence Act refers. I do not think it possible to equate a feeling of psychological comfort of the kind which the accused obviously felt with Mr O'Brien with the notion of mental and psychological pressure sufficient to constitute oppressive conduct. Accordingly, I would not uphold the accused's objection on the basis of s 84 of the Evidence Act.
The next objection deals with s 138 of the Evidence Act.
As discussed earlier, a consideration of the objection under this section commences with an identification of the threshold issue, namely whether there has been the improper or unlawful obtaining of evidence, or the obtaining of evidence in consequence of an impropriety or a contravention of an Australian law.
The accused did not submit that her admissions to Mr O'Brien were obtained in contravention of any Australian law or in consequence of such contravention. However, she submitted that Mr O'Brien's conduct, which I have earlier discussed, was improper within the meaning of that term in s 138 of the Evidence Act.
The accused accepted that the mere fact that Mr O'Brien was acting as part of a police undercover operation, and was creating a fiction about who he was, did not of itself constitute improper conduct: see Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396.
However, the accused submitted that Mr O'Brien's conduct and the way he went about obtaining the admissions was improper for the purpose of s 138 of the Evidence Act. I have earlier discussed whether that conduct could be regarded as oppressive and concluded that it did not constitute conduct of that kind. I am unable to see by reference to any norm of conduct, setting aside the deception involved in Mr O'Brien's presence and the character which he created, any impropriety with respect to his conduct. He encouraged the accused to disclose to him what happened but, in so doing, he was not overbearing the accused's will. The accused had a choice whether to tell Mr O'Brien what happened or not. She chose to exercise that choice.
Because the accused has not persuaded me that there was any impropriety with respect to the obtaining of the evidence, I am not satisfied that any objection pursuant to s 138 of the Evidence Act ought be upheld.
If I had come to consider the exercise of discretion under s 138, I would be inclined to the view that the prosecution had discharged the onus resting upon it because the desirability of admitting the evidence outweighed the undesirability of admitting the evidence.
Having regard to the factors in s 138(3) of the Act, it is appropriate that I remark that the probative value of the evidence is high. The evidence contains (although it may be only one version of what occurred) a first-hand account of the events that occurred which led to the death of the deceased by one of the two people who was involved according to the admissions. The other person, being deceased, is unable to provide any information.
The evidence is important to the proof of the Crown case because it is the principal evidence upon which the Crown relies.
Having regard to the fact that the offence charged is one of murder, the public interest in the conviction and punishment of an individual for such a crime, being such a serious one, militates in favour admission of the evidence: s 138(3)(c): R v Dalley [2002] NSWCCA 284; (2002) 132 A Crim R 169 per Spigelman CJ at [5]-[7]; R v MM [2004] NSWCCA 364 at [54].
Even allowing the entirety of the criticisms of the impropriety of Mr O'Brien which the accused attributes to him, and for reasons which I have earlier expressed I do not regard them as an impropriety, the gravity of those improprieties, giving them full weight, would not, so it seems to me in the balancing exercise, outweigh the high probative value of the evidence, the importance of it and the nature of the relevant offence, in particular the seriousness of the offence. However, it is not necessary that I proceed to such a determination.
Finally, the accused relies upon s 90 of the Evidence Act to preclude the admission of any of her conversations with Mr O'Brien, submitting that there was a fundamental unfairness about all of the facts and circumstances surrounding the obtaining of the admissions such that it would be unfair to the accused to use the evidence.
In addition to the matters which have previously been canvassed, the accused pointed to the fact that the admissions contain in part an account of events which could not have happened. A clear example is that, in the course of the discussion on 27 November 2015, on one occasion the accused said that the victim was stabbed and her face was "smashed in". The objective facts relating to the death of the deceased gathered from post-mortem examination, demonstrate that the deceased was not stabbed and that she suffered no injury to her face, although she had an injury to the rear of her skull. As well, the accused says that the deceased was hung from the bridge by a particular identified rope which was blue in colour. Again, the accused submitted that by reference to the objective facts, that did not occur.
Hence the accused submits that her account relied upon by the Crown as an admission is unreliable and that that is an important factor in the consideration by the Court of the discretion under s 90 of the Evidence Act. Inherent in that submission is that the unreliability of the admissions relate to, or arise from, the conduct of Mr O'Brien in eliciting the admissions by his exhortations to the accused to tell him the whole truth, and that by reference to Webber's spirit, that that would be what Webber wanted her to do.
I am not satisfied that the mere fact that more than one version of the facts and circumstances leading to the murder as given by the accused makes her admissions unreliable. It is a matter for the jury to be satisfied whether they accept one or other version proffered by the accused of how the deceased was killed. In that consideration they will be assisted by such other evidence as the Crown leads before them. To the extent that one or other of the accounts of the excused does not accord with that evidence, the jury is free to disregard it but believe the account of the accused which does accord with the evidence.
I am unable to see that there is any unfairness to the accused in the use of this evidence in this respect, nor that her admissions unreliable.
In reaching this conclusion, I have kept in mind and had regard to the fact that it is neither improper nor is it unlawful for the police to have used a method involving deception and trickery by employing an undercover operative. Nor was it unlawful to record what was being said by the accused. In other words, evidence was obtained and recorded in circumstances which were neither illegal nor improper. Within the conversations, in no sense has Mr O'Brien overborne the will of the accused to make her admissions. On the contrary, as I have earlier remarked, they were freely proffered.
I am not satisfied that the accused has demonstrated any basis for the rejection of this evidence under s 90 of the Evidence Act.
Accordingly, I decline to make Order 1 in the Notice of Motion.

R v Mackie

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (7 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (15)