R v Simmons; R v Moore

Resolution of the factual dispute

1. I have set out this evidence in detail because I must resolve the sharp conflict between the evidence of the detectives and the evidence of Ms Biles. Mr Stratton SC submits that I should accept the evidence of Ms Biles and reject the evidence of the police officers.
2. The Crown Prosecutor says that the evidence of Ms Biles is "equivocal and needs to be carefully examined before [I] can place any reliance upon it" because it "came out" through leading questions. No application was made by the Crown to cross-examine Ms Biles and no challenge was made to her evidence. No objection was taken to the supposedly "leading" questions asked in cross-examination: cf s 42 Evidence Act 1995 (NSW). Ms Biles is not a witness in a class that ordinarily attracts the necessity for close scrutiny. In spite of the fact that no clear submission was made that the Briginshaw standard should apply, it seemed to be implicit in the Crown's submission (T 353): "But your Honour, before your Honour can make a finding, a positive finding, it was improperly obtained your Honour would need to be satisfied positively that it was not disclosed deliberately by the police officer contrary to the sworn evidence."
3. I am not aware of any authority that places the evidence of police officers in some special category. However, I accept that the suggestion that the officers deliberately or recklessly failed to disclose a significant piece of information in applying to a Supreme Court judge for a warrant is an allegation of significant impropriety. Accordingly, I would need to be satisfied by clear and cogent evidence that the police knew where Mr Moore was and failed to disclose it in the affidavit: cf Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at [68]; Asim v Penrose & anor [2010] NSWCA 366. I should be wary of "inexact proofs, indefinite testimony, or indirect inferences": Briginshaw v Briginshaw at 361-362. Having said that, the standard of proof remains on the balance of probabilities. Section 142 Evidence Act 1995 (NSW) provides: "142 Admissibility of evidence: standard of proof (1) Except as otherwise provided by this Act, in any proceeding the court is to find that the facts necessary for deciding: (a) a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not, or (b) any other question arising under this Act, have been proved if it is satisfied that they have been proved on the balance of probabilities. (2) In determining whether it is so satisfied, the matters that the court must take into account include: (a) the importance of the evidence in the proceeding, and (b) the gravity of the matters alleged in relation to the question."
4. Sub-section (2)(a) may be a statutory reminder or formulation of the principles enunciated in Briginshaw in that it requires me, in determining whether the facts are established on balance, to take into account the gravity of the matters alleged in relation to the question.
5. As I have said in a different context, whether these matters create a different standard of proof is questionable in the light of decisions such as Neat Holding Pty Ltd v Karajan Holding Pty Ltd [1992] HCA 66; 67 ALJR 170: see Pallier v Solomons (No 2) [2014] NSWSC 1524.
6. I approach the matter in accordance with s 142 and on the basis that what is alleged is a matter of real gravity.
7. To summarise the evidence: 1. The accused was in Bloomfield Hospital between 21 July 2011 and 12 August 2011. 2. He was re-admitted after he was taken there by four police officers on 17 August 2011. 3. On 29 August 2011 Jodi Biles made a recorded interview at the Bathurst Police Station and afterwards agreed to wear a listening device while meeting with Kieran Moore. 4. There is a dispute as to what was said in the meeting that occurred after the interview. Ms Biles says that she was told by one of the detectives that the accused was in Bloomfield Hospital. Both detectives say that there was no discussion about the whereabouts of Mr Moore and that they did not know that he was in Bloomfield at that stage. No record was kept of the conversation with Ms Biles in which she agreed to wear a listening device. 5. On 1 September 2011 (and, given its length, probably on the day before) the two detectives prepared an affidavit to support an application for the warrant. This was sworn by Detective Hadley. 6. At 4:30 pm on 1 September 2011 the warrant came into effect and I infer that it was issued a short time earlier although the evidence is silent on precisely when it was issued. 7. Arrangements were then made for Ms Biles to wear the listening device and to approach Mr Moore. 8. Both detectives say that Ms Biles told them on that day that the accused was at Bloomfield Hospital and that they then travelled to Orange. On their account, this involved a change of plan because they had been of the belief that Mr Moore was in Bathurst. While the police said that they believed the accused was at his parents' home, there is no evidence as to how they knew that or what inquiries had been made before meeting Ms Biles as to where the "deployment" was to occur. 9. The listening device was activated "in the Orange area" near the Bloomfield Hospital at 6.28 pm (Ex VD 1, Tab 6).
8. While I find the timing to be fairly tight, I accept the Crown Prosecutor's submission that I cannot draw any clear inference from the timing of events. I do find the absence of any clear plan or investigation as to where Mr Moore actually was before meeting with Ms Biles after 4:30 pm to be, at least, peculiar. Detective Hadley said (T 267) "I was ‑ we were under the impression we'd be going to his home address, or Ms Biles would be going to his home address." However, there is no evidence that the police knew that the accused was at home, or even in Bathurst, prior to meeting with Ms Biles.
9. There are other conflicts in the evidence between Ms Biles and the detectives. Ms Biles says that the police offered her assistance in various ways. She says that they offered her money, accommodation, participation in the witness protection programme and assistance in obtaining custody of her children. It was also submitted (T 269) that the police may have suggested that they could assist with a cannabis charge that she was facing. However, Detective Hadley said (T 269) that he believed that the charge arose after the "deployment", that is after 1 September 2011. No further questions were asked about that issue and no evidence was led to establish one way or another when the cannabis charge was laid. When I asked about the issue in the course of the Crown Prosecutor's submissions I was told that Ms Biles was charged on 12 September 2011 but the Crown could not tell me when she was arrested. The state of the evidence was unsatisfactory and I raised the matter again before reaching a final conclusion and delivering judgment. By consent, the evidence was re-opened and the Court Attendance Notice and Facts Sheet was tendered (Ex VD 15). This shows that the cannabis charge arose on 12 September 2011. Ms Biles was arrested and charged on that date. This places significant doubt over the following evidence given by Ms Biles (T 254): "Q. At that time, were you also facing criminal charges? A. No --- yes, I was actually, sorry. Q. Was that in relation to an amount of marijuana? A. Yes. Q. Had you been arrested while transporting an amount of marijuana? A. Yes. Q. Are you able to tell us how much the amount was? A. 422 grams, I think. Q. You had that hanging over your head at the time you went to see Mr Moore? A. Yes."
10. Both officers denied that they offered Ms Biles anything, although Detective Hadley (T 269) agreed that Ms Biles had raised difficulties she was having with Housing NSW and Detective Maclean (T 281) agreed that there was discussion about "Ms Biles being offered assistance to relocate to a different town". Both officers denied the suggestion that she had talked about obtaining assistance to move to somewhere near the beach or that she was offered money.
11. The evidence is silent on just what motivated Ms Biles to agree to wear the listening device. There is evidence that she had some animosity towards Mr Moore but that hardly provides her with a motive to involve herself in a police operation in which she wore a listening device.
12. While Ms Biles was an unsophisticated witness, I found her evidence to be generally responsive and uncomplicated. I do not accept that the evidence was somehow weakened by the fact that leading questions were asked. The question that was criticised as leading - "Police told you that he was at Bloomfield Hospital?" - was plainly a clarification and confirmation of the evidence that had just been given. As I watched the exchange, it was clear that Ms Biles was saying that one of the detectives told her that the accused was at Bloomfield Hospital. I do not accept that the evidence of Ms Biles was equivocal. I reject the Crown submissions concerning the use of the word "any" in the question "At any stage, was there a discussion about where he was, at that time?" Again, watching and listening to the flow of the examination, there was no ambiguity and it was clear that Ms Biles was talking about the conversation on 29 August 2011. Further, as I asked the Crown Prosecutor in the course of submissions, if it was not on 29 August 2011, when was it? The conflict of substance between the two versions is whether it was Ms Biles or the detectives who first knew that the accused was in Bloomfield.
13. A further submission made by the Crown said to support the proposition that it was Ms Biles, rather than the police, who knew that the accused was at Bloomfield came from one of the things she said in the course of the recorded conversation with the accused (Ex VD 1, Tab 6). The Crown relies on the fact that Ms Biles told the accused (p 23) "I've been looking for you for two weeks man". I can take nothing from that evidence. That comment was made in the context of Ms Biles telling the accused that she was visiting him at the request of Mr Simmons. That was untrue. Earlier the accused had asked her who brought her over from Bathurst and she told him "I borrowed a car off my uncle". That was also untrue. In the circumstances, she was unlikely to tell the accused that the police brought her over and that the police told her that he was in Bloomfield. In the second conversation she again lied to the accused about how she had travelled from Bathurst to Orange to visit him (Ex VD 1, Tab 7, p 5).
14. On the other hand, both police gave evidence that they did not know that the accused was in Bloomfield Hospital until the day of deployment. Neither resiled from that testimony in cross-examination.
15. Further, Ms Biles' evidence that the police offered her assistance with the cannabis charge on 29 August 2011 cannot be correct in circumstances where she was not arrested or charged with that offence until 12 September 2011. It may be that Ms Biles was mistaken as to this aspect but it shows that her reliability on matters of detail must be approached with caution.
16. The resolution of this factual dispute is difficult. It is made more so by the absence of any record being kept by the police. There was nothing in the demeanour of the three relevant witnesses that causes me to believe that I can tell by observing them who is telling the truth or who is giving accurate evidence. The observations of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] are apposite: "Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events."
17. There is little objective evidence to establish when the police became aware of the fact that the accused was in Bloomfield Hospital. As I said, it seems that no notes or record was kept of the conversation with Ms Biles. The one matter that is established independently is that Ms Biles' account of having the cannabis charge "hanging over her head" is not reliable. While I find the failure of the police to have any real plan as to the "deployment" of Ms Biles surprising, that is an insufficient basis upon which to make the adverse finding that is sought.
18. In the end, the matter must be resolved by the correct application of the onus of proof. I find that the accused has not discharged the onus of establishing on balance that the two detectives knew that the accused was in Bloomfield private hospital before making the application for the warrant.

The consequence of that factual finding and s 138 Evidence Act

1. Once it is accepted that the accused has failed to discharge the onus to establish that the police knew that the accused was in Bloomfield Hospital, it follows that I am not satisfied that the evidence was obtained improperly or in contravention of the Australian law. There can be no suggestion that the police deliberately or recklessly misled the issuing justice.
2. The warrant is valid on its face and it cannot be subject to a collateral attack on the basis, for example, that relevant evidence is now known that may have caused the Judge not to issue the warrant. That is, as the Crown Prosecutor submitted, an impermissible inquiry.
3. Although it is not strictly necessary to do so, I should make it clear that I do not accept parts of the Crown Prosecutor's submissions on this issue. For example, the following exchange occurred during the Crown's submissions (T 344): "CROWN PROSECUTOR: A court can only consider the validity of the warrant on its face and not go behind the issue of the warrant or the material that was used in order to support the issue of the warrant by a justice. HIS HONOUR: If one was to take an extreme case, Mr Crown, not this one, but if one were to take an extreme case where the police went to the Supreme Court justice who had the misfortune of being on duty and presented them with 15 pages of perjury, and that came before the trial judge, that's properly obtained evidence because the warrant on its face is valid? CROWN PROSECUTOR: Yes. HIS HONOUR: That's the Crown's submission? CROWN PROSECUTOR: Yes, that's the effect of it."
4. I do not accept that the passages in Ousley v The Queen [1997] HCA 49; 192 CLR 69 to which I was taken support that approach (see Toohey J at 80, Gaudron J at 85 and McHugh J at 100, 102 and 103). In fact, McHugh J implicitly approved the following passage from Flanagan v Australian Federal Police [1996] FCA 16; 134 ALR 495, where the Federal Court declined to intervene in collateral proceedings but found at 545: "In short, we are of the opinion that, in the criminal trial, it is open to the applicants to urge that the product, and the fruits of the product, be excluded. Whether the allegations of bad faith and impropriety will in fact be made out, and whether, if so, the power, duty or discretion to exclude the product and its fruits should be exercised, the questions entirely within the jurisdiction of the County Court."
5. The Crown Prosecutor later accepted that if an allegation of perjury in the affidavit for the warrant was established, the Court would "be entitled to take the view that it was improperly obtained" (T 348).
6. However, it is unnecessary further to consider this issue in the light of the factual finding that I have made.
7. No submission was made that it was improper (for the purpose of s 138) for the police to carry out the deployment of Ms Biles once they became aware that the accused was in Bloomfield Hospital.
8. For those reasons, I am not satisfied that the evidence should be excluded pursuant to s 138 Evidence Act 1995 (NSW).

The unfairness discretion and s 90 Evidence Act

1. While the Biles conversations are not direct admissions, it is accepted by the Crown that s 90 applies to them as the statements are to be used as statements against interest or implied admissions. See, the definition of "admission" in the Dictionary to the Evidence Act; R v Horton (1998) 104 A Crim R 306; R v Esposito (1998) 105 A Crim R 27 at 42.
2. I considered the operation of s 90 in some detail in the course of my earlier judgment and I will not repeat my analysis of the relevant principles: R v Simmons; R v Moore (No 2) [2015] NSWSC 143. That analysis informs my assessment of the present voir dire and, where necessary, it should be incorporated into this judgment.
3. However, I remind myself that it has been held that the probative value of the evidence has "little significance in the exercise of the discretion under section 90": see R v Em [2003] NSWCCA 374 at [110], cf R v Phan [2001] NSWCCA 29; 53 NSWLR 480. The evidence is relevant. Its weight, probative value and reliability are matters for determination of the tribunal of fact. It is admissible unless the accused establishes that it should be excluded in the exercise of the discretion under s 90.
4. Mr Stratton SC submits that the circumstances in which the "admissions" were made makes it unfair to use them against the accused. There are various components to this. Firstly, the accused relies on his status as an involuntary patient at a psychiatric hospital. Secondly, he relies on his psychiatric state at the time of the conversation with Ms Biles. Third, he relies on the fact that the admissions were elicited by Ms Biles who was acting as an agent of the state at the time.
5. Mr Stratton SC pointed to a number of entries in the Bloomfield Hospital records (Ex VD 14) concerning the accused's mental state. These included a number of notes and comments that establish that at the time of his admission and for a period thereafter he was in a psychotic state. He was speaking in "numbers and riddles" and was diagnosed with "acute relapse of psychosis". Many entries in the days following his admission described him in terms such as "psychotic", "acutely delusional, incoherent in thought form and speech", "paranoid and grandiose". He was also described as aggressive and dangerous, both to himself and to others. He required four police officers to escort him to Bloomfield.
6. However, by the time that he was visited by Ms Biles, his condition had improved significantly and there was a plan to move him to a less secure part of the hospital ("Poplars"). In fact, this occurred between the visit on 1 September 2011 and the visit on 6 September 2011. On 31 August 2011 he was described as "bright and reactive". On 1 September 2011 Dr Chau (Psychiatrist) made a note: "Polite, cooperative. Not expressing any psychotic thoughts. Normal affect and thought form".
7. I accept the Crown Prosecutor's submission that by, 1 September 2011, the accused's psychiatric state had settled and cannot, of itself, justify a conclusion that the use of the evidence obtained by Ms Biles is unfair.
8. On the other hand, the accused remained an involuntary patient. Ms Biles gave evidence that the accused was not himself and that he was "different mentally" when she visited him (T 249-250, 259).
9. It is also noted that, once the police became aware shortly after 4:30 pm that the accused was in Bloomfield, they made no investigation into the state of the accused's mental health. They simply determined to take Ms Biles to Bloomfield and to deploy her without any further investigation. It was purely fortuitous that the accused's symptoms of acute psychosis had improved. I have read the thorough analysis of somewhat similar cases by Bellew J in R v Gallagher [2013] NSWSC 1102 at [223]-[242] and note that R v Gallagher was a more extreme case.
10. The helpful observations of McColl JA and Latham J in Pavitt v The Queen [2007] NSWCCA 88; 169 A Crim R 452 are relevant to the admissibility of a covertly recorded conversation in circumstances where the police engage a witness or complainant to speak to a suspect while the conversation is being covertly recorded by listening device (at [70]): "70. In our view, without being exhaustive, the following propositions relevant to the present case can be extracted from the authorities to which we have referred concerning the admissibility of covertly recorded conversations: (a) The underlying consideration in the admissibility of covertly recorded conversations is to look at the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned: Swaffield (at [91]) per Toohey, Gaudron and Gummow JJ; (at [155]) per Kirby J. (b) If that freedom is impugned, the court has a discretion to reject the evidence, the exercise of which will turn on all the circumstances which may point to unfairness to the accused if the confession is admitted: Swaffield (at [91]); a conclusion that some or all of the Broyles factors were present did not lead to the admissions being excluded in either Pavic or Carter's cases; (c) Even if there is no unfairness the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards: Swaffield (at [91]). (d) The question whether the conversation was recorded in circumstances such that it might be characterised as either unfair and/or improper include whether the accused had previously indicated that he/she refused to speak to the police; (e) The right to silence will only be infringed where it was the informer who caused the accused to make the statement, and where the informer was acting as an agent of the state at the time the accused made the statement. Accordingly, two distinct inquiries are required: (i) as a threshold question, was the evidence obtained by an agent of the state? (ii) was the evidence elicited? (f) A person is a state agent if the exchange between the accused and the informer would not have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents: Broyles (at [30]); (g) Absent eliciting behaviour on the part of the police, there is no violation of the accused's right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police: Hebert; (h) Admissions will have been elicited if the relevant parts of the conversation were the functional equivalent of an interrogation and if the state agent exploited any special characteristics of the relationship to extract the statement; evidence of the instructions given to the state agent for the conduct of the conversation may also be important: Broyles. (i) The fact that the conversation was covertly recorded is not, of itself, unfair or improper, at least where the recording was lawful."
11. The Crown Prosecutor accepted that Ms Biles was acting as an agent of the state on 1 and 6 September 2011 (T 254). That concession was justified in the circumstances. There was no evidence that Ms Biles would otherwise have gone to visit the accused. The two were not friends and their only connection was through Mr Simmons. The nature of the conversation strongly supports the proposition that she was acting at the behest of the police.
12. The question of whether the things said by the accused were elicited, in the sense contemplated in Pavitt, is not straightforward. I discussed the meaning of "eliciting" in this context in my earlier judgment. There is no doubt that the accused could have refused to speak to Ms Biles. However, a careful examination of the transcript of both conversations leads me to the conclusion that Ms Biles did elicit those responses relied upon by the Crown. The accused's repeated denials that Simmons was involved were constantly met with statements to the effect that Simmons had told her differently and that Simmons had said that they "did it for her". She repeatedly re-introduced the subject matter and did so quite relentlessly. She did not accept his denials. The conversation was the "functional equivalent of an interrogation".
13. The accused had not exercised his right to silence prior to these conversations. On the other hand, counsel agreed that he had never been advised of that right and the police had not previously spoken to him about the matter. When police arrested him in 2013, he exercised his right to silence.
14. As I said in my earlier judgment allowing the admissions made by Simmons, the non-exhaustive list of criteria provided by their Honours in Pavitt cannot be allowed to distract from the question posed by the statutory language of s 90. That question is whether it would be unfair to use the "admissions" in view of the circumstances in which they were made. The accused bears the onus of establishing unfairness and in persuading me that the discretion should be exercised in his favour.
15. I have concluded that I should exercise my discretion under s 90 to exclude the content of the conversations. I am of the opinion that it would be unfair to use them given the circumstances in which they were made. The matters that lead me to those conclusions include: 1. The accused was an involuntary patient at a psychiatric hospital in recovery from a severe psychotic illness. I accept the Crown's proper concession that the fact that the recurrence of the psychotic illness was brought about by drug or alcohol use is not relevant. 2. While he was in recovery and the hospital notes suggest that his condition had settled, he was subject to an order under the current mental health legislation to remain at Bloomfield Hospital until 27 October 2011. 3. Ms Biles said that on 1 September the accused was "not himself" and was "different" (T 249-250). In cross-examination, she agreed that he was "different mentally" and that he was also different mentally the second time she visited (T 259). 4. No enquiry was made by police as to the accused mental health between the time they found out that he was in Bloomfield hospital (a little after 4:30 pm) and the time Ms Biles was "deployed". 5. Ms Biles was engaged as an agent of the police investigators and persistently sought to elicit admissions from the accused in the face of his denials. The conversation was the functional equivalent of an interrogation. 6. The accused had not been advised of his right to silence and not previously been approached by police for the purpose of conducting a recorded interview or obtaining a statement from him. 7. The accused exercised his right to silence when he was arrested in 2013 (Ex VD 1, Tab 136, Q 23) although this is not a significant matter in light of the passage of time between the Biles conversation and his arrest.
16. In the exercise of the discretion under s 90 I rule that the evidence is inadmissible.

The 2013 admissions

1. It is common ground that on 18 January 2013 the police arrested the accused for the murder of Andrew Russell. The accused gave evidence that he was not aware that he had been arrested for murder (T 286-287). However, evidence of what he said whilst in custody establishes that he was aware that he was arrested for murder. The custody management record supports that conclusion (Ex VD 1, Tab 150) and in the course of an electronically recorded interview commencing at 12:09 pm on 18 January 2013, the following is recorded: "Q12. And do you agree that, that we met near Walmer Park? A. Yes. Q13. Where you were arrested and [brought] back here to the police station? A. Yeah. … Q25. I am going to ask you some questions about a murder that, do you understand that you were arrested for the murder of Andrew Russell? A. Yeah"
2. It is also common ground that the police allowed the accused to speak to his stepfather John Fazio and other relatives.
3. In the interview the accused indicated that he wished to exercise his right to silence (Ex VD 1, Tab 136, Q 23). Some time after the recorded interview, the accused made an admission, the effect of which was that Simmons had bashed the deceased (and killed him) and that the accused assisted Simmons to move the body.
4. The objection to the evidence of these admissions is based on the circumstances in which that admission was made and what prompted it. The accused says that he was induced to make the admissions by a promise that what he said would not be used against him. The accused relies on ss 85 and 90 of the Evidence Act 1995 (NSW). The prosecution says that no such inducement was offered.

The admissions

1. Detective Fawkner's statement dated 13 March 2013 sets out the following conversation (Ex VD 1, Tab 102, para 54-55): "About 12.30pm, I was asked by Sergeant Craig Spice to speak to the accused Kieran MOORE and his step father John Fazio. I returned to the charge room and had a brief conversation with Kieran MOORE, John Fazio and Detective Senior Constable Justin Hadley. This conversation was not recorded, at the request of Kieran MOORE. I took Kieran MOORE to the interview room, where I became seated with John Fazio and Kieran MOORE. I said, 'Kieran, you have asked me to come and speak with you. What do you want to speak about?" Kieran MOORE said,' I want to tell you everything, but I want my solicitor present.' I said, 'Ok, what do you want to tell me.' Kieran MOORE said. 'Tony and I were coming back into town one night and saw old mate walking along the road, near the bridge coming into Bathurst." I said, "Do you mean Andrew RUSSELL." Kieran MOORE said, "Yeah." I said, "What car were you in?" Kieran MOORE said, "My car, a VT Green Commodore." I said, "Not the white excel?" Kieran MOORE said, "No, I can't drive a manual." I said, "Ok, so, you were coming back into town." Kieran MOORE said, "Yeah, it was raining this night, Tony was in the passenger seat and he asked me to pull over. Tony got out and bashed old mate. He wasn't movin, he was dead." I said, "What happened then." Kieran MOORE said, "We moved the body into the bushes. The body is behind the Good guys there." I said, "Ok, what time was that." Kieran MOORE said, "It was late, about 11.30." I said, "Ok. I will contact Bathurst Court House and have your solicitor present." 55.1 returned to the charge room area with the accused Kieran MOORE and step father John Fazio. I asked Sergeant Craig Spice to contact legal aid solicitor Leigh Haywood. Leigh Haywood attended Bathurst Police Station, where I had a brief conversation with her. I escorted Leigh Haywood to the charge room. I then attended to other duties."
2. Detective Hadley recounts the same conversation (Ex VD 1, Tab 104, para 39).
3. Mr Fazio provided the following version of the conversation (Ex VD 1, Tab 39, Q 160): "A. Kieran said that, "All right, I will tell you what I know." And then he started to say, We were driving along Durham Street, pissing down rain, about 11.00, 11.30 at night. We were driving along, and Tony Simmons must have been in the passenger seat, said to Kieran, they must have spotted this old mate and Tony's gone, as they've approached him he must have seen him and he's gone, "Pull over. I hate this cunt." So Kieran's pulled over at a bridge, waited for this fella to approach the car, then Tony Simmons has got out and bashed him. And then Kieran said he then, he didn't wake up, so moved him over into the bush opposite the Good Guys, into the paddock area."

What was said before the admission was made?

1. The accused gave evidence on the voir dire and said that he was offered an "off the record conversation". He said, without much certainty, that he thought it was Detective Hadley who "raised the topic of an off the record conversation". He gave the following evidence (T 286): "Q. Now what did you understand to be meant by an off the record conversation? A. Give them information about what I knew and it wouldn't be used in court. Q. Did you then give the Detective an account of what had happened on a particular night? A. It never happened but I did tell the story. Q. If police had not told you that this was to be an off the record conversation, would you have spoken to them? A. No, I would have exercised my right of silence."
2. The accused was cross-examined as to precisely when this conversation occurred and he gave a variety of answers to those questions. For example, he said at one stage "they offered it to me all day." (T 292) Earlier, he said that the matter was raised in the presence of his stepfather (T 285). He was cross-examined (T 297-298): "Q. You told the detectives that you didn't want it recorded, didn't you? A. They said it was an off the record conversation and wouldn't be recorded. Q. I'll ask you the question again. You told the detectives you didn't want it recorded? A. No."
3. The accused also gave evidence (T 294): "Once they turned off the machine after I declined to give any statement or exercise my right of silence they turned off the machine and said 'well you can give us an off the record conversation if you're worried about Tony or anything like that along them lines'"
4. The tenor of the cross-examination was that the detectives did not tell the accused that he could have an off the record conversation with them.
5. Detective Hadley gave the following evidence in committal proceedings in March 2014 (Ex VD 12, p 107): "Q. In your presence did Detective Faulkner say "we can have a conversation off the record?" A. I can't remember the exact words that he may have said that to me that just meant the defendant indicated that he did not wish to be interviewed officially but he was happy to speak off the record. Q. You understand that this was what - well what I'm putting to you is that this is what Detective Fawkner said to the defendant, you understand that? A. Yes I do. Q. It's you - A. I can't remember the exact conversation but yeah."
6. Detective Fawkner's evidence at the committal (Ex VD 11, pp 61-62) was: "Q. And at the start of the conversation did you say "We can have a conversation off the record"? A. No. Q. Are you sure about that? A. I don't recall saying "off the record". I would've said something about not being recorded I don't know if you're - unless you can draw my attention to a particular- Q. I can A. Yep. Q. You later interviewed John Fazio? A. Sure. Q. The record of interview took place on 23 January 2013? A. Yeah. Q. In the course of that interview do you remember asking these questions and receiving these answers - your Honour from question 150-151 I'm sorry. Q. And do you agree that Kieran said something like 'I want to tell you everything but I want my solicitor present'? A. Yep. Q. Mr Fazio answered 'Yes'? A. Yep. Q. You asked 'And do you agree I said something like 'Well do you, do you remember what I said?' Mr Fazio answered 'You said We can have a conversation off the record'? A. Mr Fazio said that? Q. Yes? A. If you're saying that he said that yeah, I can't recall it. Q. And you then are recorded as saying 'Yeah'? A. Yeah. Q. And do you agree that - and Mr Fazio answered 'With me, with myself in the room with everybody' - question 154 'With you being present?' Answer, 'Yes'. Do you remember those answers to those questions? A. I don't know if- Q. Can I show - ask that the witness be shown a document A. Sure. Q. I understand there's no issue that its page 13 of the record of interview? A. Yep. Q. Do you agree that Mr Fazio - let me just take you to the crux of it? A. Yeah sure. Q. Did you ask - question 152 and do you agree 'I said something like 'well do you remember what I said?' Mr Fazio answered 'Aah you said we can have a conversation off record'? A. Yep. Q. You said 'Yeah' and do you agree that answer 'With me, with myself in the room with everybody' -- A. Right. Q. Have I read correctly from the transcript of the interview? A. Yep. Q. In summary Mr Fazio said that you said 'We can have a conversation off record' and you agreed that that was what was said correct? A. Yeah that's his - the interpretation of what I said yes but what- Q. But that-- A. --I think it's taken out of text (as said) when I said the conversation is not recorded we're standing in the - when we were sitting in the interview room. Q. Were they the words you used? A. They're his words not -I would've said something that - my words- Q. They're his words? A. They're his words that I say. Q. Yes? A. I agree with that."
7. The accused's stepfather Mr Fazio also gave evidence at the committal hearing (Ex VD 10 p 42): "Q. What happened then? A. We went into an interview room. Q. Yes? A. And Kieran said he'd like to tell them something with his solicitor present. Q. Yes? A. And they, that - the police said that we could have a conversation off the record. Q. Yes? A. And we had a conversation."
8. Later he said (at p 50): "Q. did you see anyone turn on a tape recorder or a video machine? A. No. Q. And did you see anyone making notes during the time that you had, the four of you had the conversation? A. Unsure. Q. And you understood that the - throughout the conversation you understood that it was to be off the record? A. I did. which is not recorded."
9. As Mr Stratton SC submitted, three of the four people present (that is, the accused, Mr Fazio and Detective Hadley) recalled that one of the police officers said something to the effect that the accused could speak "off the record". Detective Hadley could not remember the exact words. Detective Fawkner denied using those words but seemed to say that the accused may have done so.
10. In making a factual finding as to what was said, I am particularly persuaded by the recorded interview between Mr Fazio and Detective Fawkner that took place five days after the impugned admission. This was the conversation to which Detective Fawkner was taken at the committal hearing.
11. On 23 January 2013 Mr Fazio attended the Bathurst Police Station and made a statement. The statement was recorded electronically and made by way of question and answer with Detective Fawkner. The important part of that interview for present purposes is the following (Ex VD 1, Vol 1, Tab 39): "Q150. And then we went back into a little interview room. A. Interview room, yeah. Q151. And do you agree that Kieran said something like, I want to tell you everything but I want my solicitor present? A. Yes. Q152. And do you agree I said something like, or do you, do you remember what I said? A. Ah, you said, we 'we can have a conversation off-record'. Q153. Yeah. And do you agree that - A. With me, with myself in the room with, with everybody. Q154. With you being present. A. Yes. Q155. Yeah. And do you agree that I said, 'We can contact your solicitor at Bathurst' - A. Yes. Q155. - 'Courthouse' - A. Yes. Q155. - 'and have them present?' A. Yes. Q156. I just wanted to know what that conversation was going to be about. A. About what Kieran Moore - Q157. But that's what I said to him. A. Yeah. Q158. 'I want to know what that conversation was about.' A. Yes. Q159. And, and do you agree then he freely said, do you know what he said after that? A. I do."
12. Mr Fazio then (Q 160) set out his memory of what his step-son said. This is set out above (at [99]). It is in very similar terms to the conversation recalled by the detectives in their statements. It is an account which is against his step-son's interest. It establishes in my mind the fact that Mr Fazio was an honest and reliable witness. Mr Fazio was not cross-examined on the voir dire although he gave evidence at the committal hearing.
13. Mr Fawkner said nothing during the course of the interview with Mr Fazio to indicate any disagreement with the suggestion that he had offered the accused an "off-record" conversation. I do not accept the Crown Prosecutor's submission that it would have been improper for him to clarify or correct the record. It would not have been necessary to engage in impermissible cross-examination of the witness for him to do so.
14. Detective Fawkner's Duty Book (Ex VD 1, Tab 103) does not record any exchange where words to the effect that the conversation was to be off the record were used. It does record an earlier conversation that took place at Walmer Park in which the accused said that he knew nothing about the murder of Andrew Russell. Based on the custody management record (Ex VD 1, Tab 150) that conversation must have taken place at around 8:15 am. The custody management record says that the accused arrived at Bathurst Police Station at around 8:25 am. The Duty Book also records a "heated discussion" between the accused and his mother (Tracey Moore). According to the record in the Duty Book, Ms Moore told the detectives that the accused had told her that he had nothing to do with the murder but that she believed he was lying to her.
15. The Custody Manager, Sgt Spice, did not give evidence on the voir dire. His statement (Ex VD 1, Tab 149) records that Mr Fazio spoke to the accused while the accused was having a cigarette. (From other evidence, this was in a garage attached to the Police Station). Mr Fazio then asked for the detectives. Sgt Spice then relayed the request. Sgt Spice was not present during any of the relevant conversations.
16. Mr Fazio said that in the conversation he had with the accused in the garage he told the accused that he should tell the police "what he knows … everything you know, everything you know". At the committal hearing he said that he told the accused (Ex VD 10, p 41): "Tell them what you know mate, you've got to tell them what you know. You've got to look after yourself, no-one's going to look after you."
17. The accused gave evidence (T 291): "My stepfather was crying to me and kept on telling me I have to tell them something, you have to tell them something, they're going to take you down for murder and you have to tell them something."

Factual findings based on the evidence

1. The accused gave inconsistent evidence on various issues. For example, he said that he could not recall meeting the custody manager (Sgt Spice) but went on to agree with a series of propositions about what was said by the custody manager. He initially said that he could not recall what he said to Sgt Spice about speaking to the detectives again (T 292) but later testified that he said "Get the detectives. I'll have the off the record conversation" (T 293). Sgt Spice said that it was Mr Fazio (not the accused) who requested to see the detectives again and I accept that is more likely to be what happened. I have also referred to the fact that the accused said that he could not remember being arrested for murder and gave different accounts as to when the "off the record" conversation was offered to him. I have taken those, and other, inconsistencies into account in assessing his credibility. On the whole, however, I accept the accused's evidence. His evidence of there being a discussion about an "off the record" conversation receives support from the evidence of Mr Fazio and, to a degree, from the evidence of Detective Hadley.
2. Having considered the whole of the evidence closely, I am satisfied on the balance of probabilities that at least one of the police officers, probably Detective Fawkner, said words to the effect that the accused could speak to the police "off the record" or "off-record" immediately before the impugned confession was made.
3. I am satisfied that this was said at least once (in the presence of Mr Fazio) and, more likely than not, earlier in the day as well. The latter finding is based on the accused's evidence ("they were offering it to me all day") and on the meeting at Walmer Park, the details of which are not recorded in the statements of the detectives although some detail is contained in the Duty Book. I also accept Mr Fazio's clear evidence that an "off-record" conversation was mentioned almost immediately upon the detectives returning. That is unlikely to have occurred unless there was some earlier discussion of the possibility.
4. I am also satisfied that the accused understood that what he said would not be recorded and that it would not be used against him or disclosed to the co-accused Simmons. I do not accept that what was conveyed was no more than an indication that the conversation would not be recorded electronically (or in writing). There is nothing in the police statements, custody management record or Detective Fawkner's duty book of a conversation where the accused was offered a discussion that would not be recorded.
5. I am satisfied that the accused denied any involvement when first spoken to by police at Walmer Park and again when he spoke to his mother at the police station. I accept that there was a heated conversation with his mother and that, later, the accused was told by his step-father that he should tell the police what he knew and had "to look after yourself".
6. I am satisfied that the accused exercised his right to silence when interviewed by police electronically.

Relevant legal principles

1. Mr Stratton SC took me to a number of authorities concerning the admissibility of statements made after a suspect was told that the things they said would be and remain "off the record". The issue arose in The Queen v Noakes (1986) 42 SASR 489. King CJ said this (at 492-493): "That something said by the interrogated suspect will not be used in evidence is an improper inducement and one which, if it does in fact induce the suspect to make the statement, deprives that statement of its voluntary character. … In the present case the appellant asked the police officer whether he could say something off the record. I have no doubt that by that he meant, and was understood by the detectives to mean, that he was asking whether, if he said something, it would not be used in evidence. The interrogating detective responded by saying to the detective who was doing the typing, "Stop typing". What followed was not typed. … It seems to me, therefore, that what occurred was tantamount to a statement by the police officers to the appellant that anything which he said following his request that it be considered as off the record, would not be used in evidence. In my opinion, whatever might have been the intention of the detectives, the effect of what occurred was the offer of an improper inducement to the appellant to make a further statement. In those circumstances I am of the opinion that what was said following Detective Klaer's remark "Stop typing" was inadmissible as being involuntary."
2. A similar approach was taken in Walsh v The Queen [1996] TASSC 59 when Cox CJ said at [9]: "had the Detective induced the appellant to speak to him at the car park by conveying to him that such a conversation was "off the record" in the sense that what was said would not be given in evidence on any trial of the appellant, the statements made by the appellant would not have been voluntary."
3. His Honour cited Noakes and the Queensland case of R v Plotzki (1972) QDR 379.
4. In R v Chadd [2006] NZCA 449, the New Zealand Court of Appeal appeared (obiter) to take a similar approach at [24]: "It is clear that the discussion with Detective Constable Barnard concluded with the "off the record" discussion. Such discussions sometimes can mean that any statement made will not be given in evidence: R v Moresi (No. 2) (1996) 14 CRNZ 322 (HC). The "off the record" disclosures in the present case are not sought to be given in evidence and it is accepted between the parties that those are not admissible."
5. The only New South Wales case to which I was taken has a storeyed history. That is the case of Sophear Em. That case made its way to the High Court in relation to a different, although superficially similar, issue. There were two trials in this Court and two appeals to the New South Wales Court of Criminal Appeal.
6. The issue that arises in the present case was not subject to the appeal to the High Court: Em v The Queen [2007] HCA 46; 232 CLR 67. That appeal concerned a situation where the police covertly recorded admissions made by a suspect who had previously indicated that he did not wish to have any conversation recorded. The accused was told that he did not have to speak but he was not told that what he said was being recorded and that it might later be used in evidence. The meeting took place in a park. The accused was under the misapprehension that what he was saying was not being recorded and would not be used against him. The High Court held that recording the conversation in this way was not relevantly unfair for the purpose of s 90 Evidence Act 1995 (NSW): per Gleeson CJ, Heydon, Gummow and Hayne JJ; Kirby J dissenting.
7. The High Court was not called upon to consider the correctness of a ruling made by the trial Judge (James J) that another admission, induced by a representation that implied that the conversation "would not be used to his disadvantage" was inadmissible. (See the judgment of Gummow and Hayne JJ at [123]).
8. That ruling was referred to by the Court of Criminal Appeal: Em v R [2006] NSWCCA 336. Giles JA said at [51]-[52]: "51. The words his Honour had quoted were the part of the conversation in [43] above. His Honour considered that they - '134. … would have conveyed to the accused that, if he gave information to the police about the shooting, the consequence might be a consequence beneficial to him, that he would have a greater sense of well-being ('He might feel better'), but a consequence that would not ensue was his being arrested and deprived of his liberty. In my opinion, it was implicit in what was said that, if the accused spoke to the police about the shooting, what he said would not be used to his disadvantage.' 52. His Honour found that, when he spoke these words, Detective Abdy intended to induce or promote a belief on the part of the appellant that, if he spoke to the police about the shooting, what he said would not be used disadvantageously to him. His Honour came to the conclusion - '140. I have already found that the accused had come to the belief, quite independently of anything said or done by the police, that, if a conversation he had with the police was not being recorded, it was 'off the record' and could not be used in evidence against him. However, I find that what Detective Abdy said at page 25 of the transcript strengthened this belief and encouraged the accused to speak to the police about the shooting when previously in the conversation he had been reluctant to do so. 141. I conclude that what Detective Abdy said at page 25 of the transcript impugned the accused's freedom to choose whether to speak to police. Detective Abdy had intentionally said to the accused that, if the accused spoke to the police he would not be arrested and what he said could not be used against him. It would be unfair to use against the accused evidence of admissions made by him after the words spoken by Detective Abdy at page 25 of the transcript, and, therefore, evidence of those admissions should be excluded.'"
9. Giles JA went on to say at [77]: "77. The appellant referred to The Queen v Noakes (1986) 42 SASR 489, in which the accused asked the police if he could say something off the record, the police agreed, and it was thought that the accused meant and the police agreed that what was to follow "would be off the record in the sense that it would not be used in evidence" (at 492). This was held to be the offer of an improper inducement to make a further statement. The contrast with the present case is marked; there was a positive holding-out that what the accused said would not be used against him."
10. In an earlier appeal (R v Sophear Em [2003] NSWCCA 374), Howie J referred to the same distinction (at [133]): "133. In my opinion there is a very significant difference, for the purposes of the admission of evidence of confessional statements, between, on the one hand, subterfuge by the police which is aimed merely at inducing a suspect to believe that what he said to them was not being recorded, and, on the other hand, subterfuge which is aimed at inducing in a suspect the belief that what he said would not be used in evidence against him. I do not believe that conduct of the first type necessarily requires that the admissions obtained as a result of the subterfuge be rejected under s 90 or otherwise. On the other hand conduct of the second type would clearly enliven the discretion to reject the evidence under s 90 and it may be the case that, generally speaking, any admission resulting from such a representation would be rejected in the exercise of discretion."
11. The learned Crown Prosecutor did not take me to any additional authorities on the subject but says that, properly analysed, the situation here is more analogous to the issue that arose for the High Court's consideration in Sophear Em. He says that I would not accept that the accused was offered an "off the record conversation". He fairly concedes (T 372) that if I am satisfied that the accused was induced to believe that what he was saying was off the record in the sense that it would not be used against him or disclosed to Mr Simmons he "couldn't quarrel with your Honour exercising the discretion to exclude it".
12. In spite of the case law in other jurisdictions, the concession made by the Crown Prosecutor and the findings that I have made, it is necessary to determine whether a proper application of the provisions of the Evidence Act lead to a conclusion that the evidence should or must be excluded. The language employed in the case law ought not to distract from the terms of the statute.

Section 85 Evidence Act

1. Section 85 of the Evidence Act 1995 (NSW) provides: "85 Criminal proceedings: reliability of admissions by defendants (1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant: (a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence, or (b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued. Note : Subsection (1) was inserted as a response to the decision of the High Court of Australia in Kelly v The Queen(2004) 218 CLR 216. (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. (3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account: (a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and (b) if the admission was made in response to questioning: (i) the nature of the questions and the manner in which they were put, and (ii) the nature of any threat, promise or other inducement made to the person questioned."
2. The terms of s 85(1)(a) are clearly satisfied. Accordingly, the question is whether, taking into account all of the circumstances including the particular matters referred to in sub-s (3), "it is unlikely that the truth of the admissions was adversely affected". While sub-s (3)(b)(ii) makes specific reference to an inducement, the enquiry required by the section remains focussed on the likelihood that the truth of the admissions was affected adversely.
3. The section does not call for analysis as to whether the confession is (in fact) true unless, perhaps, the issue is raised by the party taking the objection: s 189(3) Evidence Act. In R v Ye Zhang [2000] NSWSC 1099 Simpson J said at [52]: "52. It seems to me that sub s (3) is designed to obviate a "bootstraps" argument in the determination of the admission of the evidence. That is, evidence of an admission will not be admitted because the admission can be shown, by other evidence, to be truthful. The attention of the court is to be directed to the circumstances in which the admission was made, excluding evidence that would substantiate or contradict the admission. The legislation delineates the circumstances in which the admission was made from its independently verifiable (or otherwise) content. An exception to that position, provided in s 189(3), is made where the accused introduces the question of truth or falsity of the admission. Where the accused takes that course, neither the Crown or the court is precluded from embarking on an examination of the proof of the admission, although it may be that the extent to which that will be considered is limited."
4. There is some question over whether the enquiry is an objective or subjective one and a number of other controversies surrounding the application of the section: see the helpful discussion of the authorities and typically robust expressions of opinion in Odgers, Uniform Evidence Law (11th Edition) at pp 429-430 [1.3.5220]. These controversies do not really arise in this case. For example, I propose to put to one side any vulnerability that the accused may have had due to his psychiatric condition and drug addictions in spite of the requirement in sub-s (3)(a) to take into account any relevant condition or characteristic of the accused. This aspect has not been subject of argument and, while there is some evidence that the accused's problems continued, it does not appear to be "relevant" to the question that arises under s 85.
5. Equally, I do not propose to engage in a consideration of whether the admission is actually true based around a consideration of the other evidence in the case. What I will do is to apply the words of sub-s (2) - do the circumstances make it unlikely that the truth of the admission was adversely affected?
6. I have considered the prosecutor's submission that the accused did not confess as a result of any inducement offered by the police but, rather, as a result of what his step-father said to him. While that submission has some force given the timing of events, the whole of the circumstances must be considered and the conversation with Mr Fazio must be considered in the light of my finding that the police told the accused that he could speak "off the record" and that the accused believed that this meant the evidence would not be used against him.
7. On careful reflection, I have reached the conclusion that the circumstances do not make it unlikely that the truth of the admission was adversely affected. In the precise terms of s 85(2), I am not satisfied that "the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected".
8. In reaching that conclusion, I have given effect to my finding that the accused was induced by a statement that the conversation was "off the record" and his belief that this meant it could not be used against him or disclosed to Simmons. I have also taken into account the fact that the accused was told that he was under arrest for murder and that, after he exercised his right to silence, he was engaged in a "heated discussion" with his mother. He was thereafter told by his step-father that he had to help himself and tell the police what he knew or, on the accused's account, tell them something. On either account the accused was under considerable pressure to say something and, with the inducement and pressure of the murder charge hanging over him, I am not satisfied that the circumstances were such that it is unlikely that the truth of the admission was adversely affected.
9. Having reached that conclusion, s 85 is in mandatory terms. The evidence is not admissible.

Section 90 Evidence Act

1. In view of that conclusion, it is strictly unnecessary to consider the discretionary exclusion of the evidence on the grounds that the circumstances in which it was made make it unfair to the accused to use the evidence.
2. However, I have also reached the opinion that the discretion under s 90 is engaged given the circumstances as I have outlined them and the factual findings that I have made.
3. I have made extensive reference to the operation of s 90 earlier in this judgment and in the judgment allowing the admissions of Mr Simmons to be led in evidence.
4. In this case the accused was arrested and told that he was to be charged with murder. Given the timing, that allegation must have been based on the evidence contained in Simmons' admissions to the police. It may also have received some support from Jodi Biles' interview back in 2011 but that evidence was insufficient for the police to seek to interview the accused, let alone charge him. The accused denied involvement to Ms Biles in 2011 when she recorded the conversations covertly on behalf of the investigators. He denied involvement when the police met him in the park to arrest him. He exercised his right to silence when he was interviewed formally. He was then offered an inducement namely, that that what he said would be off the record.
5. Taking into account all of those circumstances, it would be unfair to use the evidence against him.

ORDERS

1. I make the following orders: 1. The evidence of recorded conversations between the accused and Jodi Biles on 1 September 2011 and 6 September 2011 is excluded. 2. The evidence of the unrecorded statements of the accused at the Bathurst Police Station on 18 January 2013 is excluded.

Amendments 30 March 2015 - removal of hyperlink DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 March 2015