R v Marks [2004] VSC 476

Supreme Court of Victoria|2004-11-24|Before: COLDREY J

CRIMINAL LAW - Ruling - Murder - Evidence - Admissibility of admissions/confession to an undercover police officer - Basal voluntariness - Inducements - Reliability - Discretionary considerations - Refusal of application to exclude.

The accused, Matthew Marks, was presented on a count of murdering Margaret Mary O'Toole at East Malvern on 7 April 2002.

On 14 September 2004, at the conclusion of a voir dire which occupied 15 sitting days, I ruled that confessional statements or admissions made to an undercover police officer "Gary Butcher" by the accused on 27 November 2002, were admissible in evidence.

I found that the statements made by the accused, which were in effect a confession of murder, were made voluntarily and were not inherently unreliable. I further found that these statements should not be excluded either on the grounds of unfairness or public policy and that their probative value outweighed any prejudicial effect. It was agreed by the parties, in the interests of expediting the trial, that I publish my reasons at a later date. This I now do.

In order to place the impugned statements in context it is necessary to set out the factual history of this murder prosecution.

On 17 April 2002, the body of Mrs Margaret O'Toole was discovered by her brother Paul O'Neill at her unit in Serrell Street, East Malvern. She was slumped in an armchair in the loungeroom of the premises with a doona covering her head and most of her body. The loungeroom was in darkness but a television tuned to channel 9 was operating.

Although the security door of the unit was closed, the front wooden door was partially open and there was nothing to suggest any forced entry into the premises. The front bedroom of the unit had the appearance of having been ransacked with the mattress pulled off the bed and drawers and various items (including costume jewellery) scattered around the room.

On the basis of the post-mortem changes observed (including some mummification), it was clear that the deceased had been dead for some days. The actual date of death was alleged to be Sunday 7 April. This date was identified because no telephone calls to the unit were answered after 6 April; the mail delivered from Monday 8 April onwards had not been collected from the letterbox; the last newspaper in the house was dated 7 April; and an accompanying television guide had programs marked solely for that day.

Amongst the deceased's injuries, revealed in the autopsy performed by Professor Stephen Cordner, was a large gaping wound extending from the outer part of the left eyebrow to the top of the head at the base of which were multiple fragments of bone. Fractures radiated from the crushed bone area to the other side of the skull and to the base of the skull over the eyes. Similar wounds were located on the right side of the back of the head. Significantly, some of the fragments of bone showed portions of a circular circumference at their edge. Additionally, there was a circular area with blood splatter radiating from it, adjacent to the deceased's right ear.

It was Professor Cordner's opinion that the implement which possibly could have caused these injuries was "something like a hammer" albeit there were other instruments that could have been responsible for the damage observed.

It was also Professor Cordner's view, according to his statement, that a minimum of 15 to 20 and up to 30 or 40 blows at the severe end of the spectrum of force, were required to inflict the various head injuries.

(I interpolate that at the trial of this matter, attention was drawn to an almost semi-circular abraded mark on the deceased's right temple and the contour of something circular on the lower of two shallow lacerations on her right hand.)[1]

The deceased's neck was extensively bruised and beneath that location there were injuries which included a fractured windpipe and Adam's Apple and the tearing away of the oesophageus. Moreover, the right collar bone had been fractured as had both joints attaching the collar bone to the breast bone. There was an element of abrasion to this injury. Professor Cordner nominated such causes as a shod foot, fists or knees, but it was also possible, in his opinion, that the same blunt instrument that caused the head injuries was involved. If the injuries were caused by the former type of mechanism at least two blows would have been required and if by something like a hammer, quite a few more than two.

Further, there were two fractures to the third finger of the left hand and a laceration to the side of the fifth finger.

It was Professor Cordner's view that these injuries, together with the two shallow lacerations to the right hand which I have already mentioned, were defensive-type injuries which had probably occurred when the hands had been held up to the head or neck. These injuries would have involved at least four blows.

At the committal proceedings, Dr Michael Burke, who gave evidence based upon Professor Cordner's report, agreed generally with the latter's opinion. He also expressed the view that severe force was necessary to cause the shattering of the skull and that a hammer was very likely the weapon used, although a baseball or cricket bat could also cause the damage observed. Dr Burke also agreed with the figure of 15 to 20 blows to the head.

There was evidence from Dr Rebecca Hayes, an expert in blood patterns, that the pattern of bloodstaining observed at the deceased's unit supported the proposition that Mrs O'Toole had suffered her fatal injuries whilst seated in the armchair.

In addition to the alleged confession by the accused, the Crown relied on a number of pieces of circumstantial evidence. At this point I will list some of the major ones.

At 5.19 p.m. on the evening of 6 April, the deceased received a telephone call from a public phone box situated at 205 Huntingdale Road, Huntingdale. The call lasted for 25 minutes. This was a public phone box in the vicinity of the accused's then residence at 80 Carmichael Road, East Oakleigh and was one which he had admittedly used in the past. On 8 April, a call from the same phone box was made to the accused's father in Tungamah. It was the Crown case that the accused had made both calls, the former involving arrangements to visit the deceased on the following day (7 April).

At 12.35 a.m. on 8 April, at a time alleged to be subsequent to the killing, a call was made to Silver Top Taxis from a public call box at 1113 Dandenong Road, East Malvern (about two blocks from Serrell Street). The proposed destination was Oakleigh and the name of the caller recorded by the taxi operator was "Mark". In the event no fare was picked up by the driver. It was the Crown's contention that the caller was Matthew Marks.

The independent evidence also revealed that on Tuesday 9 April, the accused deposited a Commonwealth Bank cheque dated 5 April, for $4,000 and purportedly drawn by the deceased, into his ANZ Bank account. The body of the cheque was in the accused's handwriting. Expert evidence was to the effect that the signature of the deceased had been forged.

The Crown also relied on the accused's motive for the killing. At the time of Mrs O'Toole's death the accused owed her some $31,000. An amount of $3,000 related to a transaction involving his motor car and $28,000 by way of a loan to pay out his debts. These debts comprised over $29,000 incurred on various credit card accounts. Accordingly, the total indebtedness of the accused was in the order of $60,000.

It was the Crown case that the accused believed that by killing Mrs O'Toole he would be absolved from any responsibility to repay the debt which was in her name. In addition, because the accused believed he was a principal beneficiary under Mrs O'Toole's will, he expected to gain financially by her death.

On 6 May 2002, the accused was arrested by the Homicide Squad and a record of interview was conducted. In it the accused asserted that the last time he was at Mrs O'Toole's address was Friday 5 April 2002. He denied telephoning Mrs O'Toole on 6 April, and said he could recall nothing particular about 7 April. On his account, after visiting Mrs O'Toole on 5 April, he had travelled from her unit to his mother's home in Reservoir. There he had dinner before accompanying his mother, brother, and sister, to Tullamarine Airport where his siblings departed for Thailand. In the record of interview he claimed to have informed the family at this time of his visit to Mrs O'Toole (Q.58). (Perhaps significantly, at the trial itself, none of them gave evidence of receiving this information at the time.)

In describing his meeting with the deceased on 5 April, the accused told investigating police of requesting an additional loan from Mrs O'Toole to which she agreed. He wrote a cheque for $4,000 which she signed in his presence. He denied that he had forged the signature. This was proffered as a false denial by the Crown evincing a consciousness of guilt as was his denial of making the telephone call to the deceased on 6 April.

As was made clear in the interview, none of the principal had been paid off the $28,000 loan as at 7 April, albeit interest payments had been made. The net amount of some $25,000 received by the accused had long since been gambled away at the Crown Casino. Arrangements were made by the accused and Mrs O'Toole to refinance the amount owing and, according to the accused in the record of interview, Mrs O'Toole had agreed to the future repayments of the principal by monthly amounts of $100 to $200. The accused was not specifically questioned about future interest payments.

The accused denied any involvement in the killing of Mrs O'Toole and was released without charge pending further inquiries. Thereafter, phone intercepts were put in place on various phones including that of the accused. These were operative from 30 April to 19 June 2002.

One of the key issues in assessing the reliability of the confessional material concerned the use of a hammer as the murder weapon and the killer's exclusive knowledge of that fact. It is convenient to deal with that issue in the context of the Crown case.

Whilst the telephone taps garnered no admissions of guilt, statements emanating from the accused's mother, Mrs Debra Marks in conversations with her son, indicated that she had no idea that the murder weapon may have been a hammer. (I interpolate that, although evidence to the contrary was given by Mrs Marks and the accused's two siblings in the course of the trial, such evidence lacked credibility and was clearly rejected by the jury.) The accused, during the voir dire, made no mention in his evidence in chief that any family member had told him that a hammer was the murder weapon[2]. In cross-examination he asserted that his mother had told him that she had been advised that something like a hammer had been used[3]. Later in his evidence the accused claimed that his description to Covert Operative Gary Butcher of the use of the flat end of the hammer was derived from what his mother had told him and the reference to a blunt instrument in a newspaper article.

Again, I should add for completeness that in evidence given in the trial itself the accused reiterated that his mother told him of the hammer but in cross-examination the accused said he did not know when or where this conversation occurred. Nor could he recall if his mother had revealed the source of her information.

On the voir dire Mrs Marks was not called as a witness.

Evidence from the informant, Detective Senior Constable Boris Buick, was to the effect that the possibility of a hammer being the murder weapon was never released to the public or conveyed to the accused's family. Police media releases referred to "an unknown instrument" and the family were told only that the deceased's extensive head injuries were caused by a blunt instrument. That evidence is extremely important in evaluating reliability of the accused's impugned confession. I should make it clear immediately that I accept the accuracy of Mr Buick's evidence on this issue given both at the committal proceedings and on the voir dire. I interpolate for completeness that the family's lack of knowledge of the possible murder weapon was confirmed at the trial by the deceased's brother, Mr Paul O'Neill, and his son, Mr James O'Neill.

One further significant piece of evidence relied upon by the Crown was that of Andrew Zheng-McDonald, who was the accused's landlord at Carmichael Road, East Oakleigh between 1 April 2002 and mid October of that year. In a statement made on 28 November 2002 (which statement was effectively confirmed by evidence at the trial), the witness described a hammer which had gone missing six to eight months before that date. At the trial the witness deposed to having kept the hammer either on a shelf in his office area or in a tool box in the loungeroom area. He also stated that he first realised the hammer was missing at the time of making his November statement.

Importantly, this statement and the subsequent evidence place the date the hammer went missing at a time proximate to the murder of Mrs O'Toole.

On the voir dire the accused swore that Mr Zheng-McDonald told him of the missing hammer around April 2002[4]. (Not only is this contrary to the statement and later evidence of Mr Zheng-McDonald, it was not asserted by the accused at the trial and it was never put to Mr Zheng-McDonald in cross-examination that any such conversation had ever occurred.)

As at 4 July 2002, neither the telephone intercepts nor police instigated conversations conducted with the accused by such persons as his friend Dean Vlek, had advanced the murder investigation. Consequently, on that date, Detective Senior Constable Buick initiated an application to the Police Covert Operations Unit to conduct an undercover operation targeting the accused. In the application he described the accused in these terms:

"Whilst Marks is manipulative of his family and some friends, he appears to be a person of weak character and a person dependent on attention and affection. His demeanour during a number of telephone intercepts supports this."

The application having been successful the operation commenced on 25 September, and culminated on 27 November 2002. The modus operandi was based on a Canadian model where police, posing as members of a gang, commit simulated crimes and the targeted suspect is gradually incorporated into the purported criminal organisation. The overall objective, according to Detective Sergeant Stephen Cody, the controller of the present operation, was to determine the involvement, if any, of the accused in the murder of the deceased. In this case there were 16 covert operatives involved in 16 scenarios enacted between 22 October and 27 November. The scenarios were designed to build upon each other exposing the accused to various aspects of the criminal group. The fact that the organisation was connected to other criminal groups was revealed, as was group access to a corrupt police officer named Royce. The credo of the gang (or crew) was trust, honesty and loyalty. The fact that the accused must not lie to members of the crew and particularly to the big boss was reinforced throughout the scenarios. It was stressed that lying could bring the crew, which constituted a tight knit criminal organisation, undone. Any member caught lying to the boss would be scrubbed from the organisation. It was also constantly made clear to the accused that he could walk away from the crew at any time.

Detective Sergeant Cody stated that, given availability of personnel, a primary operative who would be compatible with the accused would be chosen. In this instance the covert operative, "Rick Baxter", and the accused, clearly got on well together. Indeed it was Baxter's role to develop a rapport with the accused and to introduce him to a successful well organised criminal organisation.

Rick Baxter exemplified the good lifestyle enjoyed by a gang member and, at the commencement of the exercise, the accused was offered, and accepted, free accommodation in Baxter's St. Kilda flat. His only obligation was to inform Baxter of mail deliveries.

The voir dire involved lengthy cross-examination of police witnesses about each of the 16 scenarios. However, it is not necessary to embark upon a detailed examination of each of them. I have listed the scenarios by date and subject matter in an annexure to this ruling.

The seduction of the accused into the culture of the gang commenced with his keeping watch on transactions and counting protection money collected from various targets at brothels and markets, through blackmail and negotiations for the sale of weapons to bikies, to participating in a jewellery burglary and money laundering.

The capacity to earn large sums of money as a gang member was conveyed and the potential value of the accused to the gang was promoted. For example, the accused was asked to value DVD burners the gang intended to sell on the black market (scenario 10); and in a brief meeting with the big boss at the Hilton Hotel (scenario 11) the accused was told that his expertise in computers could be useful to the organisation.

During the scenarios the fact that the organisation looked after its own was instilled. This was illustrated in a practical manner by the apparent dispatching overseas of crew member Sam (who had been identified by a security guard at a burglary) and equipping him with a fake passport and ample spending money.

Violence was not part of any of the scenarios. On virtually every occasion the accused was paid $100 for his involvement, the total amount being $1,400. At no stage did he decline to participate.

In the course of the accused's evidence on the voir dire he gave his reasons for ongoing involvement in the activities of the gang as being monetary; enjoyment of the activities involved; and the pleasure he derived from Rick's friendship. By scenario 7 he was an enthusiastic participant aspiring to the lifestyle of his partner in crime.

The accused asserted that he did not believe he could leave the gang after scenario 7 which involved the sale of the guns to the bikies. However, at the same time he conceded that he was looking forward to another job and, in effect, that he wanted to continue down this path to potential wealth.

The accused's claims of misgivings are belied by his actions and words in the subsequent scenarios. In cross-examination he agreed that he felt pleased at what he perceived to be his value to the gang and the burgeoning of his friendship with Rick Baxter whom he wished to emulate. The accused agreed he was excited to meet the crime boss Gary Butcher at the Hilton Hotel (scenario 11) and the thrust of his evidence (clearly confirmed by the audiotaped conversations with Baxter) was that by this stage he was eager to be a member of the crew. It was in this vein that he participated in the jewellery burglary (scenario 12).

During this scenario the accused reiterated that he would have no hesitation joining the crew. Rick Baxter stressed that if the accused lied to the crime boss Gary, and Gary found out, he would be gone. The transcript of the conversation has Baxter saying: "Once you've lied to him ..." and the accused responding: "That's it yeah". Later Baxter says: "In his eyes ... once you've breached that trust or been dishonest with him ..." and the accused interjects: "There is no going back."

There is no doubt that the accused was subjected to some psychological pressure as the exercise proceeded to its culmination. Indeed, Detective Senior Constable Buick agreed that it was a tandem operation. For example, on Friday 22 November (scenario 15) the accused learned that the Homicide Squad police had visited his workplace and became extremely concerned. Additionally, the accused's evidence was to the effect that he had been contacted at about this time by Mr Buick who sought his new address. This information was not provided. On that occasion the detective also indicated the desire that the accused undergo a lie detector test.

According to Sergeant Cody, Buick's actions were designed to indicate to the accused that he was still a person of interest to the Homicide Squad. Sergeant Cody added that the operation's design required the accused to be the subject of a check on his background which was to be undertaken by the corrupt police officer and which was designed to ascertain his suitability for gang membership. The result of this check was to be put off until the final scenario.[5]

As the accused told Rick Baxter, he attributed the failure of the check coming through to the Homicide Squad investigation and was worried that it would affect his ability to join the gang.[6] Moreover, it was consistent with the gang's operations that a job could not be offered to the accused until any suspicion around him was alleviated by a favourable result from the check. Indeed, this was later confirmed to the accused by Baxter on 26 November. This situation was compounded by the fact that a favourable check was a prerequisite to the accused obtaining $12,000 which was his share of the proceeds of the jewellery burglary. This amount had been placed in a safety deposit box on 22 November.

The accused's state of mind at this time is clearly revealed in the transcript of this meeting and in his voir dire evidence. The accused agreed that it was important to him to be accepted by the crew. He told Rick of his preparedness to give up his day job and that he could be relied upon in gang activities. The accused queried Rick about the financial rewards he would receive upon admission to membership of the gang. Thereafter he envisaged bigger and better jobs and more money.[7]

On 26 November, the accused met Rick and was told that there were problems with his check. The accused deposed to having the belief that these problems were due to his being a suspect in the homicide investigation. As to what would occur if he was not accepted into the crew the accused stated:

"I understand that my involvement with Rick would cease, that his friendship may not continue and that I would ultimately lose the accommodation of his rent free apartment in St. Kilda."[8]

There was no contact between the accused and Rick Baxter on the weekend of 23 and 24 November, and, at the instruction of Sergeant Cody, contact on 25 November was minimal.

As to the effect of this upon the accused, his evidence as to his feelings during this interim period was as follows:

"I am very anxious to find out, or hear back that my check is being sorted out. I'm a little bit frustrated that it hasn't been sorted out and that I'm not yet fully accepted by the crew."[9]

At their 26 November meeting, covert operative Rick reassured the accused and reinforced the earlier message that any problems, including problems with the Homicide Squad, could be fixed by the boss Gary. Further, Gary was looking into the problem with the check. The accused in turn emphasised his keenness to become a gang member.[10]

On the following day, the accused was picked up by Rick Baxter and taken to meet crime boss Gary at the Crown Towers Southbank. The audiotape of this part of the process indicates that the accused was relaxed. Again, there is an exchange of assurances by Rick that the problem will be sorted out and by the accused of his desire to be part of the crew. Baxter reminded the accused what Gary was all about and the accused indicated he understood. I take this to refer to the credo of trust, honesty and loyalty.

Without going into chapter and verse of the transcript, the state of mind of the accused prior to meeting with Gary Butcher in the Crown Towers suite was as follows:

(a) He fervently desired to be a member of the crew;

(b) He wished to obtain the $12,000 languishing in the safety deposit box;

(c) He hoped to earn large sums of money from his participation in the gang's activities;

(d) He wanted to retain and develop his friendship with Rick Baxter;

(e) He was anxious that any further investigation of him by the Homicide Squad should cease;

(f) He believed crime boss Gary could arrange this;

(g) He believed that Gary could solve the problem of the check which stood between him and gang membership; and

(h) He was aware that if he lied to Gary he could forfeit any right to gang membership.

In the ensuing meeting with Gary Butcher the accused disclosed that he had killed the deceased on the evening of Sunday 7 April 2002, by bashing her head and neck with a hammer. It is this conversation which contains admissions which, on their face, amount to a confession of murder.

The admissibility of this confessional material was challenged by the defence on a number of grounds. Broadly stated they were as follows. First it was argued that the confession (as I will refer to it) was involuntary, or more accurately that the Crown had failed to prove that it was voluntary on the balance of probabilities. Secondly, it was submitted that the confession should be excluded as inherently unreliable. Thirdly, it was put that the confession should be excluded in the exercise of fairness or public policy discretions. Fourthly, it was said that it should be excluded because its prejudicial effect outweighed its probative value.

These legal principles have recently been considered in a number of cases involving the criminal gang approach to obtaining confessions.[11]

In the earliest of these cases, R v Tofilau, the trial Judge, Osborn J meticulously set out the relevant authorities. It would be quite superfluous for me to slavishly attempt to emulate his scholarship. In general I gratefully adopt his legal analysis. As Osborn J pointed out:[12]

"The principles governing the question of the admissibility of the taped conversations are elaborated in the decision of the Court of Appeal in the matter of R v Juric [[2002] 4 VR 411.] The leading authority is the decision of the High Court in R v Swaffield and Pavic [(1997) [1998] HCA 1; 192 CLR 159.] As the Court of Appeal states: 'In Swaffield and Pavic the High Court considered two separate cases involving the question whether confessional statements voluntarily made to a witness who, unbeknown to the accused was a police officer, or acting on behalf of the police, should be admitted into evidence. Toohey, Gaudron and Gummow JJ in a joint judgment, and Kirby J separately, held that the admissibility of confessional material turns first on the question of voluntariness, next on exclusion based on considerations of reliability, and finally on an overall discretion taking account of all the circumstances (including the means by which any admission was elicited and whether unfair forensic advantage may be occasioned by admission of the evidence) to determine whether the evidence was admitted or a conviction obtained at an unacceptable price having regard to contemporary community standards. Brennan CJ said that the conduct of law enforcement officers should be considered under the public policy discretion except where that conduct makes the reliability of a confession dubious, in which case the unfairness discretion can be invoked'."[13]

The time honoured statement of what constitutes involuntariness is that of Dixon J in McDermott v R[14]:

"At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is found to be voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he is being overborne. If his statement is the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made: [case cited]. The expression 'person in authority' includes officers of police and the like, the prosecutor, and others concerned in preferring the charge. An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority: [cases cited]. That is the classical ground for the rejection of confessions and looms largest in a consideration of the subject ... The extreme applications which were made at one time of the principle that confessions obtained by the use of persons in authority of hope or fear were inadmissible gave this head of inducement an importance which has tended to obscure other forms of inducement. It is perhaps doubtful whether, particularly in this country, a sufficiently wide operation has been given to the basal principle that to be admissible a confession must be voluntary, a principle the application of which is flexible and is not limited by any category of inducement that may prevail over a man's will."

More recently the rationale for the exclusion of confessional statements which are not voluntary has been stated by Deane J in R v Cleland[15] as follows:

"The rational basis of the principle that evidence can only be received of a confessional statement if it be found to be voluntary should be seen as a combination of the potential unreliability of a confessional statement that does not satisfy the requirement of voluntariness and the common law privilege against self-incrimination ..."

On the issue of what has been termed "basal voluntariness" the remarks of Brennan J in Collins v R[16] are apposite. His Honour stated:

"The ultimate question is whether the will of the person making the confession has been overborne, or whether he has confessed in the exercise of his free choice. If the will has been overborne by pressure or by inducement of the relevant kind, it does not matter that the police have not consciously sought to overbear the will. A finding that there has been an attempt to overbear by persons in authority is neither determinative of, nor an essential prerequisite to, a finding that the will of the person making the confession was overborne ... A confession is not held to be involuntary merely because the confessionalist is by nature or temperate predisposed to confess and is furnished with an opportunity to do so; it is the effect of an external factor, of the kind referred to by Dixon J in McDermott's case, upon the will which determines admissibility. 'Voluntary' does not mean 'volunteered' but 'made in the exercise of a free choice to speak or be silent': [case cited]. The conduct of police before and during an interrogation fashions the circumstances in which confessions are made and it is necessary to refer to those circumstances in determining whether a confession is voluntary. The principle, focussing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made. Voluntariness is not an issue to be determined by reference to some hypothetical standard: it requires a careful assessment of the effect of the actual circumstances of the case upon the will of the particular accused."

"The inquiry is not the occasion for an excursion into the fields of philosophy or psychology. The law 'accepts generally as an axiom the concept of the free human will - that is, a potentialicy in the conscious mind to direct conscious action - specifically, the power of choice in regard to action': [case cited]. If the choice is to be accounted for by external pressure, or by some fear of prejudice or hope of advantage induced by a person in authority, the confession is held to be involuntary. Of course, the motives to confess, like the motives for many human actions, may be mixed and if there be a congeries of motives it is necessary to determine whether the confession would not have been made but for pressure placed upon the confessionalist or some fear of prejudice or hope of advantage induced by a person in authority, or whether the making of the confession is really to be accounted for by motives of the confessionalist which are not referable to such pressure, fear or hope. This is a question of fact and of degree, to be resolved according to the particular circumstances of the case."[17]

In the instant case the overwhelming evidence is that the accused took part in the conversation with Gary Butcher willingly and with the agenda I have already detailed. (For example during this conversation he further expressed his keenness to become a gang member). The accused was told by Butcher on three occasions that he did not have to say anything about the homicide problem; he was told that he could walk away from the gang; and the need to be truthful and honest was reinforced.

The videotaped interview reveals a person who, if initially nervous, settled down quickly and, thereafter, confidently and relatively fluently, gave a detailed account of the events of 7 April 2002, and their aftermath.

At no time was the accused harangued by Gary. Nor was he interrogated by him in the accepted sense of that term, or subjected to duress, sustained pressure, intimidation, or persistent importunity. True it is that the accused was told he was the prime suspect for murder ('hot as a chop") and, unless something was done about it, he would "go down for it".[18] But the accused's own belief expressed later in the conversation with Gary[19] was that he knew that the police knew they had the right man. Indeed as early as the 6 May interview investigating police had not only put the allegation to him that he was the killer but had made it clear that they would be conducting further inquiries.

At all times during the videotaped episode the accused appears in control of himself even to the extent of querying the crime boss Gary as to whether their conversation was being tape recorded.

In the course of the voir dire a Consulting Clinical and Forensic Psychologist, Mr Jeffrey Cummins, gave evidence on behalf of the accused. He first interviewed him for 2¾ hours in August 2004, almost two years after the accused's participation in the scenarios culminating in the November confession. Mr Cummins also observed the accused giving evidence on the voir dire and re-interviewed him on 3 September 2004. Additionally, Mr Cummins had access to an earlier July 2000 report of a Forensic Psychologist, Mr Ian Joblin, compiled for the purposes of an earlier court appearance by the accused for the theft of computers. It transpired that Mr Cummins was not aware, when examining the accused, that he had not told Mr Joblin of his schoolboy transgressions and their aftermath or of his alcohol problems. Nor was Mr Cummins aware that during his own examination of the accused, he had lied to him when claiming that on his arrest he had told police that he had been pressured and induced into making a confession. Indeed, in his own evidence, the accused conceded that he was capable of lying for his own benefit and Mr Cummins' own report referred, in effect, to a lack of authenticity in the way the accused initially presented.[20] I note that the accused also told Mr Cummins that the deceased signed the cheque for $4,000, a claim not borne out by the evidence, and that he made the false confession to Gary in the belief he was a corrupt Homicide Squad detective, an assertion never made by the accused in his evidence. Nonetheless, Mr Cummins had sufficient confidence in his historian to form the opinion that the accused was suffering from a borderline personality disorder as well as a dependent personality disorder and an adjustment disorder.

I do not intend to go into any of these diagnoses in detail but I note for completeness that at the trial, whilst not deviating from such diagnoses, Mr Cummins conceded that the accused also exhibited the requisite number of criteria applicable to an anti-social personality disorder.

Allowing for the sake of argument that the accused suffers from the disorders which Mr Cummins deposed to having diagnosed, I am quite unpersuaded that such factors rendered the confessional statements of the accused involuntary. My own view of the accused, based on 38 years of experience as a barrister and Judge was that he had considerable self-possession and was well able to cope with situations of stress. Indeed, the capacity of the accused to handle himself when questioned was exemplified in his confident performance when initially interviewed by Homicide police on 6 May, and again when reinterviewed on 27 November 2002, after his arrest. Evidence of his being compliant is not, in my view, discernible. Nor is it apparent in the various recorded conversations. It should also be noted that Marks had an above average IQ and had undertaken tertiary studies with at least partial success. He was also a person who, on his own admission, was secretive and only revealed to people what he wished them to know.

In short there is no evidence that the will of the accused was overborne and I am satisfied, on the totality of the evidence, that the Crown have discharged the onus of demonstrating this basal aspect of voluntariness. As the accused subsequently remarked to Rick Baxter, when essentially repeating his description of the killing, he felt better for having got it off his chest.

The accused was, of course, totally misled as to the circumstances in which he found himself, including the real identity of the persons to whom he ultimately confessed. Those factors, however, do not serve to render the statements he made involuntary in the sense I have discussed. Indeed, as Osborn J pointed out in Tofilau[21] in examining Swaffield and Pavic, the fact that Swaffield was deceived as to the identity of the undercover police officer to whom he spoke did not raise the issue of basal involuntariness.

The alternative version of events presented to the Court by the accused was that he deliberately and calculatedly manufactured a confession of murder in order to achieve (inter alia) gang membership and termination of the Homicide Squad investigation.

The issue of voluntariness is, of course, broader than the aspect already discussed. As Dixon J stated in the passage in McDermott's case already quoted[22], at common law a confessional statement cannot be voluntary if it is preceded by an ongoing inducement held out by a "person in authority". His Honour went on to define person in authority. The ambit of this term was later considered by the Privy Council in Deokinanan v R[23]. More recently it was pronounced upon by Wood J in R v Dixon[24]. His Honour's statement should not be regarded as extending the boundaries of the concept beyond those drawn by Dixon J.

In R v Tofilau[25], the Canadian cases on this topic were considered in detail by Osborn J. He concluded that on either the Australian or Canadian approaches the inducement must be held out by a person cloaked with authority legitimately linked to the investigative or prosecutorial process. Put simply, such a person must be perceived by the accused as having the capacity to carry the inducement into effect by virtue of their formal role in the arrest, detention, interrogation or prosecution of the accused person.

In the instant case the accused was the subject of a number of inducements. These included the capacity of the crime boss to frustrate or terminate the homicide investigation, as well as the promise of gang membership and the financial rewards (immediate and future) that would accompany it. However, such inducements were not proffered by a person in authority. They were held out by a crime boss outside the authority of the law and envisaged the attempted, if not the successful, perversion of the course of justice through the utilisation of the corrupt police officer Royce.

Accordingly, these inducements cannot be called in aid as factors which would result in the exclusion of the confessional material as involuntary. However, the issue of inducements should also be addressed when considering the so-called overall discretion involving what may generally be termed the unfairness and public policy discretions.

If this analysis be correct, there is no room for the operation of s.149 of the Evidence Act 1958.

That section insofar as is relevant, provides:

"No confession which is tendered in evidence shall be rejected on the ground that a promise or threat has been held out to the person confessing, unless the judge ... is of opinion that the inducement was really calculated to cause an untrue admission of guilt to be made; ..."

The section is subject to the limitations placed upon it by the High Court in R v Lee[26] namely, that it applies only to confessions (being full admissions of guilt) and further, it applies only to confessions which would have been excluded at common law as having been induced by a threat or promise made or given by a person in authority.

Although it is possible to infer a complete admission of guilt of murder from the statements of the accused, for the reasons I have given any inducements were not held out by a person in authority. Even were I to be wrong in my interpretation of this latter requirement, I do not, in the circumstances of this case, regard any inducement as "really calculated to cause an untrue admission of guilt to be made".

In reaching that conclusion I am mindful of the warning given by the Victorian Court of Appeal in In the Matter of an Application by Chief Commissioner of Police (Vic) for Leave to Appeal[27] that the manipulation involved in the present technique has the capacity to undermine the probative weight traditionally given to a statement ostensibly against the interests of the maker, and a court (or jury) should take into account the possibility that a person believing it is in his or her interests, and safe to do so, may make an untrue statement.

Indeed, that defence was foreshadowed in this case.

Bearing in mind the admonition of the Victorian Court of Appeal, I now turn to examine another aspect which impinges upon the admissibility of confessional evidence, namely its reliability.

I note that in R v Favata[28] Teague J gained assistance in considering the matter of reliability by utilising a test propounded by the South Australian Court of Criminal Appeal in R v Pfitzner[29]. That was a case involving voluntary confessional statements made by an appellant who suffered from mental illness which included psychotic episodes or symptoms.

In the leading judgment, Doyle CJ, whilst noting that issues of unreliability would normally be dealt with by the jury and it would only be in exceptional cases that a judge would exclude a confessional statement on this ground, posed an exclusory test based upon affirmative satisfaction that the admissions were inherently unreliable as distinct from their possible unreliability.

It is not necessary for me to reach a conclusion as to whether this approach ought to be adopted in cases not involving serious mental illness because on any view the confessional statements in this case are not inherently unreliable. Much of the detail provided by the accused in the confessional material accords, or is consistent with, the objective evidence.

In relation to the facts surrounding the killing, such matters include:

1. The record of a telephone call from a public phone box near the accused's home on the evening of 6 April; 2. The evidence of newspapers and letters indicating that the accused was killed on 7 April; 3. The statement that Star Wars was on the television at a time shortly after the attack and the fact that the deceased's television was still tuned to the relevant channel (9) when the body was discovered; 4. The ransacking of the bedroom to simulate a burglary and similarly the removal of the rings from the deceased's fingers; 5. The placing of a covering over the deceased; 6. The removal of the deceased's credit cards; 7. The unplugging of the deceased's phone on 7 April because the accused's father had called on the accused's mobile and the accused believed his father would ring the aunt - the call to the accused's mobile by the father being independently recorded; 8. The calling of a taxi after the killing from a phone box on the Princes Highway to go to a destination in Oakleigh by a person ostensibly giving the name Mark; 9. The forging of the deceased's signature on the $4,000 cheque; 10. The return to the deceased's premises having hired a car from Rent-a-Bomb on 15 April; and 11. The fact that the deceased smelled on the latter occasion.

Insofar as the killing itself was concerned the external material is as follows:

1. The taking of a hammer from the toolbox of Zheng-McDonald - it being verified by that witness that a hammer was missing; 2. The claimed purchase of specialised gloves from Myer Chadstone - with gloves similar to those described by the accused being stocked at that store; 3. The use of a hammer as the murder weapon with injuries consistent with the use of the hammer being identified at autopsy; 4. The striking of the deceased with the flat end of the hammer - consistent with injuries to the head of the deceased; 5. The hitting of the deceased's head from behind - consistent with the pattern of blood splatters; 6. The assertion that after the first blow the deceased brought her hands up - consistent with defensive injuries to the hands including a broken right finger; 7. The infliction of blows to the deceased's throat - consistent with injuries including a crushed larynx.

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

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

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

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

It was submitted that the methods employed by the investigating police in obtaining the confessional material were unfair or, alternatively, contrary to public policy. Consequently, the confessional material should be excluded in the exercise of what has been referred to in some authorities as "the overall discretion".

In Swaffield and Pavic[30] Toohey, Gaudron and Gummow JJ in the course of their joint judgment stated:

"... In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the Court has the discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the Court will look at all the circumstances. Those circumstances may point to unfairness of the accused if the confession is admitted. There may be no unfairness involved but the Court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to the prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations."

In terms of the unfairness discretion the joint judgment recognised that one aspect of it is to protect against forensic disadvantage which may be caused by the admission of improperly obtained confessional statements.[31]

In the course of his dissenting judgment, Kirby J approached these concepts in the following manner:

"Subterfuge, ruses and tricks may be lawfully employed by police, acting in the public interest. There is nothing improper in these tactics where they are lawfully deployed in the endeavour to investigate crime so as to bring the guilty to justice. Nor is there anything wrong in the use of technology, such as telephonic interception and listening devices although this will commonly require statutory authority. Such facilities must be employed by any modern police service. The critical question is not whether the accused has been tricked and secretly recorded. It is not even whether the trick has resulted in self-incrimination, electronically preserved to do great damage to the accused at the trial. It is whether the trick may be thought to involve such unfairness to the accused or otherwise to be so contrary to public policy that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value. In the case of covertly obtained confessions, the line of forbidden conduct will be crossed if the confession may be said to have been elicited by police (or a person acting as an agent of the police) in unfair derogation of the suspect's right to exercise a free choice to speak or to be silent. Or it will be crossed where police have exploited any special characteristics of the relationship between the suspect and their agent so as to extract a statement which would not otherwise have been made."[32]

The Victorian Court of Appeal in R v Lewis[33] made the point that:

"No doubt there is always a degree of deception involved in the use of an undercover operative but, as has been frequently said, investigation of serious crime [our emphasis] cannot always be played out in accordance with a sportsman's code of conduct."

And in R v Carter[34] it was accepted that a measure of manipulation and exploitation could occur in the process of obtaining admissions. It will always be a matter of degree in the individual case.

Similarly, the fact that admissions have been obtained as a result of some elicitation will not be conclusive on the question of admissibility. The Victorian Court of Appeal stated in Lewis[35]:

"In this vexed area of admissibility of confessional material given to a police undercover operative, some store appears to have been placed by the authority upon the question of whether the operative has 'elicited' the impugned material or whether it has been willingly conveyed to him during 'mutual conversation'. It has been suggested, we think with some justification, that such a subjective and nebulous test is an unsafe touchstone to guide the trial judge's discretion on the question of admission or exclusion of relevant and admissible evidence."

In this case, as in all cases involving the Canadian model, the accused was the subject of a massive and elaborate subterfuge. Certainly his confession may be seen as the result of the various inducements I have already enumerated and it cannot be gainsaid that the accused was the subject of a degree of manipulation and exploitation. Did it, however, cross "the line of forbidden conduct" to adopt the phrase of Kirby J?

The inducements themselves were in the context of, and consistent with, the gang culture. I have already indicated that they were not calculated to produce a false confession.

The accused was frequently told that he could walk away from any of the activities of the gang. The overwhelming inference from his actions and recorded conversations is that he had no desire to do so. I reject his evidence on the voir dire that he believed walking away might result in the risk of physical harm by gang members; in any event it was not an option that he ever seriously considered.

Further, whilst his life circumstances and psychological makeup may well have made entry into the gang culture attractive to him, any personality disorder to which he may have been prone fell far short of creating the level of vulnerability contended for by the defence.

A relationship was established between the accused and the gang members - particularly Rick Baxter - but it was a relationship in which the accused participated with ever increasing eagerness. Ultimately he saw the relationship as one of mutual benefit.

Whilst the accused was told by Gary Butcher that as far as the Homicide Squad were concerned he was the killer, this was a state of affairs the accused well knew both from his own dealings with the Homicide Squad and from the information as to the Homicide Squad's attitude towards him, passed on by his friends and associates.

It was made clear to the accused by Butcher that he need say nothing at all about the matter but if he did say something it should be the truth.

Moreover, there were no prejudicial distortions or false claims about the evidence in the hands of the investigating police as was the case in R v Roba[36] and R v Heaney and Welsh[37] respectively.

The accused was never told he had to admit to the murder. Although once the admission was forthcoming, it was made clear by Butcher that he needed a detailed account of the killing, the majority of his questions of the accused were designed to obtain details of the events which the accused had volunteered. In this regard any questioning facilitated the confession. Insofar as this process may be described as elicitation, it falls at the lower end of the scale of that technique. As I have previously noted the accused, despite being told he need say nothing, was a willing and co-operative participant in the conversation with Butcher. Further, it was a conversation entirely consistent with the roles being played by Butcher and his fellow covert operatives and the accused's perception of those roles.

The admission of any confessional material will necessarily create a forensic disadvantage for an accused person but, as illustrated in such cases as R v Amad[38], R v Roba[39], R v K.S. and Said[40], and R v Su and Goerlitz[41], the forensic disadvantage must stem from the circumstances involved in the obtaining of the admission by investigating police covert or otherwise or their agents.

In the present case the accused had already been interviewed and chosen not to exercise his right to silence and had, thereafter, been released from custody without charge. This was not a case, therefore, where the procedure employed constituted a deliberate effort to circumvent the accused's statutorily guaranteed right to silence[42] as in Juric[43], Roba[44] and R v Dewhirst[45].

The implementation of telephone interceptions had failed to advance the investigation. It was only at this stage that resort was had to the undercover operation. Moreover, the covert operation was not merely an evidence gathering exercise. It was a legitimate part of an ongoing investigative phase as was the situation in such cases as R v Franklin[46], Lewis[47] and Carter[48]. The provision of s.464ff of the Crimes Act 1958 had no application on that ground alone quite apart from the non-application of the legislation to covert operatives who are excluded in the definition in the Act of "investigating official".

All of the above matters may be regarded as impinging upon the exercise of the fairness and public policy discretion.

Insofar as they relate to the former, they do not reveal circumstances warranting the exclusion of the impugned material on the basis of unfairness.

Additionally, in relation to the latter, a significant factor is the seriousness of the crime being investigated by the police. It was the brutal murder of an elderly woman in what should have been the safety of her own home. Further the conduct of the police was not illegal.

In all the circumstances I am not persuaded that the application of contemporary community standards would result in the conclusion that the confessional evidence sought to be admitted had been obtained at an unacceptable price. This is a value judgment which must be made by each individual judge, and each case will, of course, turn on its own facts.

As to the fourth ground advanced for exclusion of the confessional material, it is sufficient to indicate that the cogency of this evidence far outweighs any prejudicial effect it may have. Any specific prejudice which may be occasioned by the accused's participation in the purported criminal activities can be ameliorated by appropriate jury directions.

For the foregoing reasons I ruled that the confessional material should be admitted into evidence.

Despite my conclusions I cannot help but feel that assessing the Canadian model of crime investigation is the legal equivalent to slaloming through a minefield. No doubt the technique employed by investigating police will, in the near future, be closely scrutinised by the judges of appellate courts. In this regard it is well to bear in mind the admonition of the Victorian Court of Appeal in R v Warrell[49]:

"These concepts of voluntariness, fairness, and public policy are integral to the operation of our criminal justice system. They are designed to ensure that any finding of guilt arrived at, on the basis of confessional evidence, is not only reliable but that the evidence itself has been obtained in a socially acceptable fashion. It is important to keep in mind, in this context, that they are concerned not only with the recognition and protection of the rights of those who may be suspected of the commission of criminal offences, but that any such finding is not surrounded by an aura of possible injustice which compromises both the system and the society which supports it."

[1] p.994 and photo 181 and p.955 and photo 192 respectively. From time to time, for completeness, I will refer to the trial evidence. It does not, of course, form any part of this ruling.

[11] R v Tofilau [2003] VSC 188; R v Ghiller [2003] VSC 350; R v Clarke [2004] VSC 11; R v Favata [2004] VSC 7; R v Hill (unreported ruling dated 27 July 2004).

[42] s.464ff Crimes Act 1958

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Cases Cited (9)