R v Sophear Em

R v Sophear Em - [2003] NSWCCA 374 - NSWCCA 2003 case summary — Zoe

[7]

Friday, 12 December 2003 R v Sophear EM Judgment 1 IPP JA: I agree with Howie J. 2 HULME J: In this matter I agree with the orders proposed by Howie J and with His Honour's conclusions as to the errors in the decisions and reasoning which are subject of the appeal. I also agree with His Honour's remarks concerning the "first conversation" and the undesirability of the proceedings being re-heard by Shaw J. I agree substantially with His Honour's reasons for arriving at those conclusions and remarks. Introduction 3 HOWIE J: This is an appeal by the Crown under s 5F of the Criminal Appeal Act in respect of orders made by Shaw J excluding certain evidence that the Crown seeks to rely upon in a prosecution of the respondent on a number of charges including murder. On 16 September 2003 his Honour rejected the Crown's tender of evidence of two conversations between investigating police and the respondent, one occurring on 21 April 2002 ("the first conversation") and the other on 15 May 2002 ("the second conversation"). 4 The respondent has been indicted on a number of charges arising from two incidents of home invasion. In the first incident ("the Logozzo robbery") the male householder was shot and killed. In respect of that matter the respondent was charged with a number of serious offences including the murder of Mr Logozzo and the wounding of Mrs Logozzo. Arising from the second incident ("the Kress robbery") the respondent was charged with a number of aggravated robbery offences. The second conversation principally relates to the Logozzo robbery and the first to the Kress robbery. 5 Insofar as the appeal relates to the order excluding evidence of the second conversation, the respondent accepts that this Court has jurisdiction to hear and determine the appeal, notwithstanding that the ruling was an evidentiary one. On the charges arising from the Logozzo robbery, the Crown case in essence relies upon what the Crown alleges are admissions by the respondent to his participation in that offence during the course of the conversation on 15 May 2001. If the evidence were excluded, the prosecution for murder and other serious offences could not proceed. In such circumstances this Court has held that it has jurisdiction under s 5F to review the ruling excluding the evidence, see Bozatsis and Spanakis (1997) 97 A Crim R 296; R v Lisoff [1999] NSWCCA 364; R v Phan [2003] NSWCCA 205. 6 Insofar as the appeal relates to the order excluding evidence of the first conversation, the Crown concedes that this Court has no jurisdiction to entertain the appeal. The evidence of, what are alleged to be, admissions in that conversation is not the sole basis of the Crown case against the respondent for the charges in respect of the Kress robbery. 7 It should be noted, however, that his Honour's judgment proceeded on the basis that the respondent had taken objection to the admission of the evidence of both conversations and that the parties had sought a ruling upon the admissibility of both. That was not so. Rather counsel for the respondent informed his Honour that her view was that the admissibility of the first conversation could not be addressed until the issue of the admissibility of the second conversation was resolved. It was also stated in the Crown's written submissions placed before his Honour that the Crown did not understand that there was any objection to the evidence of the first conversation. Although a significant amount of evidence was led on the voir dire before his Honour about the circumstances surrounding the first conversation, it was directed, apparently, to the credibility of the police officers in respect of their evidence about the second conversation. The parties have conceded that, if objection is ultimately taken to the admission of evidence arising from the first conversation, a ruling can be made upon that matter by the trial judge without being bound by the order made by Shaw J and without having regard to his Honour's reasons for rejecting the evidence. 8 His Honour apparently rejected the evidence of the second conversation on three bases: firstly, that the evidence was obtained improperly within the terms of s 138 of the Evidence Act and should not be admitted; secondly, in the exercise of the discretion under s 90 of the Act because to admit the evidence would be unfair; thirdly, under s 137 of the Act, because the evidence was unfairly prejudicial.

[11]

The initial investigations 16 From information received by the police, it appeared to them that two of the persons who committed the robberies might be the same. They believed that the firearms used in each offence were an AK 47 assault rifle and a .32 handgun. 17 On 16 February 2002 police executed a search warrant at premises in Canley Vale in connection with an unrelated matter. During the search they located a fishing licence in the name of Michael Kress and a watch owned by Alyson Kress, both of these items having been stolen in the Kress robbery. They also located black electrical cable ties similar to those used in the robbery and a balaclava. At the time of the search the respondent and a friend, Mao Vann, were living in the premises. The watch was found in Vann's room and shortly after the search he was arrested. 18 The respondent was present during the course of the search and when he was asked, "Who is Michael Kress?" he replied, "Might be a friend of ours". The respondent was arrested following the finding of drugs in his possession. He refused to participate in an interview about the drugs when he was taken to the police station. He was charged with an offence and released. 19 On 22 February 2002 police, using the ERISP procedure, interviewed the respondent in relation to the killing of a person on 9 February at Liverpool. He was given a caution explaining that he did not have to say anything but what he did say would be electronically recorded and later used in evidence. The respondent answered over 270 questions. He was not charged with any offence. 20 On 23 April 2002 police executed a search warrant at premises at Bonnyrigg and located a mobile telephone handset stolen during the course of the Kress robbery. Inquiries revealed that Vann had given the telephone to his younger sister. The mobile telephone belonging to Alyson Kress was later traced to a person who informed police that he had purchased it from Vann. 21 On 24 April 2002 police executed a search warrant at premises in Chester Hill Road, Bass Hill. In a room, then occupied by the respondent, police located a carry bag containing, amongst other items, the following: a black balaclava; a cable tie; a roll of grey duct tape; and a sheath knife. The respondent, who was present at the time, admitted ownership of the property, except the cable tie, but said that it was used for fishing or hunting. Another occupant of the house, Arno Do, was arrested in respect of a firearm found in the premises. Liane Tran, who also lived in the premises, was taken to the police station for questioning in regard to the use of her SIM card in a mobile phone stolen in the Kress robbery.

[101]

The voir dire 47 The voir dire before Shaw J was lengthy and the police officers involved in the conversations with the respondent were cross-examined about every facet of their investigation involving him, even though it was only the second conversation to which objection had been taken. A number of allegations of impropriety, if not illegality, were put to the officers relating to their conduct toward the respondent. They were denied. Other police were called to give evidence about the practices and procedures adopted in accordance with Part 10A of the Crimes Act. A copy of the police Code of Practice was tendered and evidence given as to its status. An Inspector of Police was cross-examined about the training of police in relation to their duties under Part 10A. 48 Both Detectives Abdy and McLean accepted that, as at 15 May 2001, the respondent was a suspect for the murder of Mr Logozzo. They also conceded that they believed that the respondent would not have spoken to them had he understood that the conversation was being recorded. Detective Abdy agreed that he did not take the respondent to the police station because he believed that the respondent would not have spoken to him there. 49 Detective Abdy agreed that, although he told the accused that he did not have to talk to him or answer questions, he did not tell him that what he said might be taken down and used against him. He omitted this part of the caution so as not to alert the respondent to the fact that his conversation was being recorded. He agreed that he kept on asking questions even though the accused told him that he did not want to answer questions about the murder. Detective Abdy accepted that Detective McLean could be heard sighing during the conversation because of his frustration at the failure of the respondent to answer their questions. 50 A significant part of the cross-examination of Detective Abdy was about his assertion to the respondent during the second conversation that he and his partner were not trying to trick him. The officer denied that he was in any way trying to trick the respondent and, in particular, denied that he was attempting to have the respondent believe that anything he said might not be used in proceedings against him. The cross-examination on the topic included the following:

[161]

[77] I am conscious of the observations of Kirby J in Swaffield that admissions made by an accused person can often have the colour of bravado rather than truth. It is, in my view, also relevant that the covertly recorded material relied upon by the prosecution does not contain a straightforward or unequivocal admission of guilt. In a vague and amorphous way it indicates a geographical proximity to the scene of the alleged crime, but not a clear confession of guilt. 82 It may be a matter for debate as to whether the evidence of the statements attributed to the respondent contained a "straightforward or unequivocal admission of guilt" or whether they did not. The answer may depend on an impression of the sum total of what was said in the context of the conversation as a whole. I would, with respect, take a different view from Shaw J about how the admissions might be characterised. But, in any event, I do not believe that his Honour's finding that there was no unequivocal admission meant that the probative value of the evidence "was not high". In my respectful opinion, his Honour's assessment of the probative value of the evidence arising from the second conversation was a very significant underestimation of its capacity to prove the Crown case. I note, in this regard, that his Honour had, in effect, concluded that there was nothing to suggest that the admissions might be unreliable, as he had rejected the objections to the evidence under both s 84 and s 85. 83 A finding that his Honour's assessment of the probative value of the evidence was erroneous may not of itself be a sufficient basis for intervening in the exercise of his Honour's discretion, if it were the only ground upon which this Court were asked to do so. However, I should express my firm view, that there are statements of the respondent made in the second conversation that are highly probative of both his involvement in the Logozzo robbery and that he was the person who fired the shot that killed Mr Logozzo. I do not think that it is appropriate to say more about the nature of that evidence or what conclusions a jury may or may not draw from it. The success of this appeal is not based upon the success of this particular complaint made by the Crown even though I believe it is well justified. 84 Although it was submitted, before his Honour and before this Court on behalf of the respondent, that the admissions may be unreliable because they were based upon things that the respondent had been told by the police before 15 May, his Honour made no such finding. It should not be assumed that this is what his Honour had in mind when concluding that the probative value of the evidence was not high. This is particularly so in light of the fact that his Honour rejected an argument that the admissions might be unreliable under s 85 of the Act. In my view, there is no basis to infer, in the absence of evidence from the respondent, that the statements made are not what they appear to be: reliable admissions of both his knowledge and participation in the events giving rise to the charges before the Court. 85 Having acknowledged the importance of the evidence to the Crown case, because it was the only evidence to prove the guilt of the respondent in the Logozzo robbery, see s 138(3)(b), and the seriousness of the charge of murder, see s 138(3)(c), his Honour then considered whether the impropriety was reckless or deliberate, see s 138(3)(d). His Honour stated:

[169]

It should be kept in mind that a police officer is under a duty to ascertain the facts which bear upon the commission of a crime, whether from the suspect or not, and the officer is not bound to accept the first answer given; questioning is not to be regarded as unfair merely because it is persistent. It is a question of degree as to whether persistence has crossed the line so as to render it unfair to use the answers in evidence. No doubt the evidence will inevitably be excluded if there is any suggestion of intimidation, persistent importunity or sustained or undue insistence or pressure. 95 Of course, whether pressure applied by police may be described as "undue" in a particular case will be a question of fact and degree, upon which reasonable minds might differ. However, simply because police officers applied undue pressure to an accused to answer questions at some stage during an interview, it does not follow that the whole of the interview should be rejected. There may be a point in time when the police conduct has reached the stage that it would be unfair to admit the answers thereafter. But generally this is an exercise of the discretion under s 90 rather than under s 138 and different considerations apply. Again in light of the findings his Honour made about the police conduct and the reliability of the admissions, it does not follow that the evidence should have been excluded because his Honour found that the Code had been breached. 96 It should be apparent, from what I have written so far, that on occasions, when purporting to exercise the discretion under s 138(1), his Honour expressed himself by using words or terms that are not found in the section. I have referred already to his Honour's finding that the admission of the evidence would be "oppressive and unfair". Of course, it does not necessarily follow that his Honour's discretion miscarried as a result of what might only be an infelicity or inexactness in expression. But, if a trial judge departs from the words of the relevant section, there is a real risk that the judge may not have asked and answered the right question in exercising the statutory power or discretion, or at least it may appear that he or she has not done so. This risk will increase where the term or word used is relevant to a different statutory power or discretion than the one being exercised. In the present case, oppression is one of the bases for rejecting an admission under s 84. Unfairness is at the very heart of the discretion under s 90. 97 I am of the opinion that the grounds upon which the Crown has appealed against his Honour's order, insofar as he purported to reject the evidence under s 138 of the Evidence Act, are made out. It should be noted that his Honour did not address the ground that the police acted in contravention of Part 10A of the Crimes Act. However, just as there was no express finding made as to whether the respondent was under arrest for the purpose of applying s 139, so there was no finding as to whether the respondent was under arrest for the purposes of Part 10A.

[174]

99 In respect of the discretion under this provision, the defence relied upon judgments of the High Court which, in effect, state that it would be unfair to admit evidence in a situation where the confession might not have been made had proper procedures been conducted or where the accused's freedom to choose to speak to the police had been impugned; Swaffield and Pavic v The Queen (1997) 192 CLR 159 at 202; Van Der Meer v The Queen (1988) 62 ALJR 656 at 666; Duke v The Queen (1989) 180 CLR 508 at 513. 100 In support of this ground of objection, the respondent relied upon a number of facts arising from his arrest on 24 April 2002 and the circumstances leading up to, and the conduct of, the second conversation. Two of the matters relied upon have already been dealt with in considering whether his Honour erred in rejecting the evidence under s 138. These were the complaints of persistent pressure being placed upon the respondent to answer questions during the second conversation and the resulting breach of the Code of Conduct. Insofar as his Honour dealt with these grounds under s 138, I have already concluded that his Honour's discretion miscarried. But even if they were considered as grounds for exercising the discretion under s 90, I do not believe that they would necessarily require that the discretion be exercised in the respondent's favour. 101 The most significant matter relied upon as the basis for the exercise of discretion under s 90, or so it seems to me, was whether the police conduct breached the respondent's right to choose whether to speak to them. The argument for the respondent was that, as the police knew that the accused would not answer questions if he believed the conversation was being recorded, the police intentionally tricked him into believing that the second conversation was not being recorded and, thereby, obtained admissions that they would not otherwise have obtained but for the trick. 102 Although in the passage of the Crown's written submissions before Shaw J quoted earlier it was accepted that the trick might be a false statement for the purposes of s 138(2)(b), this was not how either counsel appearing for the respondent or his Honour dealt with the matter. 103 In respect of the discretion under s 90, the Crown submitted that, as the respondent was always exercising his right to speak or be silent, it would not be unfair to admit the evidence. Further, it was submitted that, although there was "some persistence", it was "within acceptable limits".

[176]

Unfairness then relates to the right of an accused to a fair trial; in that situation the unfairness discretion overlaps with the power or discretion to reject evidence which is more prejudicial than probative, each looking to the risk that an accused may be improperly convicted. While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone. It may be, for instance, that no confession might have been made at all, had the police investigation been properly conducted. And once considerations other than unreliability are introduced, the line between unfairness and policy may become blurred. 106 Having later considered decisions in both Australian and Canadian jurisdictions concerned with the exercise of discretion in cases where the police had secretly taped conversations between the accused and another person, their Honours stated at [91]: ……….. 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 a 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 to 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 prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations. 107 Although there is no longer, in this State, a common law discretion to reject admissions on the basis of unfairness, there is no relevant distinction between the scope and purpose of a discretion to reject evidence of an admission under s 90 and that which exists under the common law as declared in Swaffield, see ibid at [91]. 108 In determining whether to reject the evidence under s 90, Shaw J was required to make a value judgment as to the conduct of the police and its impact, if any, on the respondent's freedom to choose whether to speak to them. His Honour was also entitled to take into account other facets of the questioning which might produce the result that it would be unfair for the prosecution to use the evidence against the respondent. But before coming to that value judgment, there were issues of fact to be determined by his Honour, especially about the conduct of the police and its effect upon the respondent. Importantly, in the exercise of the discretion under s 90, Shaw J had to determine, if he could, what the police had caused the respondent to understand to be the consequences of his belief that the police were not recording the conversation. In particular, the question that arose was, did the police intentionally lead him to believe that, because the conversation was not being recorded, they did not intend to use his statements in evidence against him? It is important to note, once again, that the respondent had the onus of proving the facts upon which the discretion was to be exercised and that the discretion should be exercised in his favour.

[180]

[80] When, however, the accused knows that he is speaking with police I am not sure that the same principles arise. In these circumstances the accused is exercising a choice to speak with police. He cannot, in my opinion, complain that those representations are recorded. However, he can complain that he would not have spoken with police if he had known about the recording device, but that is a consideration that the court must assess, having regard, amongst other things, to the probative value of the evidence obtained. He can complain that the police elicited evidence that they could not obtain lawfully in an ERISP procedure and the court may consider that the probative value of such evidence is outweighed by unfair prejudice to the accused. The right to silence remains relevant to each of these considerations in our criminal justice system. 110 With respect, I agree with much of what his Honour states in these paragraphs. But, in my opinion, an assessment of the probative value of the evidence is not a matter of significance in the exercise of the discretion under s 90. At common law a significant factor in the exercise of the unfairness discretion was the reliability of the admission, although it was not necessarily decisive; Swaffield at [78]. This was because the purpose of the discretion was the protection of the rights and privileges of the accused, including procedural rights occurring in the trial process. Similarly under s 90 the reliability of the evidence may be significant, because, if it is unreliable, there is more risk that its admission will result in an unfair trial. But if its reliability is accepted, and there was no finding by his Honour that the evidence was unreliable in the present case, then it seems to me that an assessment of probative value has little significance in the exercise of discretion. Certainly its lack of probative value does not seem to me to be a matter that indicates that the evidence should be rejected. Arguably, the less probative weight the evidence has, the less likely is its admission going to result in an unfair trial. In any event, to the extent that his Honour appears to have taken the lack of probative value of the evidence into account in exercising the discretion in favour of the respondent, his Honour was in error. 111 However, one of the Crown's complaints about the exercise of the discretion is more fundamental than this. The Crown submits that his Honour's discretion under s 90 miscarried because his Honour took into account an irrelevant consideration. That was a finding that the evidence was "unfairly prejudicial". The Crown's argument is that, by using this term, his Honour was in effect rejecting the evidence under s 137 of the Act and there was no basis for doing so. That section obliges a trial judge to reject evidence where its probative value is outweighed by unfair prejudice. I will deal with s 137 shortly, but it does appear to me, with respect, that the Crown's complaint has substance. As was pointed out in the joint judgment in Swaffield at [65]:

[181]

Since "the unfairness discretion" is a recognised basis for excluding confessional statements and is dealt with in the authorities as a discrete discretion, the issue whether there is some additional basis for excluding such statements in terms of probative value versus prejudicial effect does not call for further exploration in the present context. Where confessional statements have been excluded in exercise of the unfairness discretion, it has not been after a weighing of probative value against prejudicial effect has been carried out. 112 As I observed earlier, the fact that a trial judge uses inappropriate words or terms when exercising a statutory power or discretion would not necessarily lead to a conclusion that the exercise of the power or discretion miscarried. Certainly, if it were open to his Honour to have rejected the evidence under s 137, it would not matter that he purported to do so in the exercise of the discretion under s 90. But, in my respectful opinion, there was no foundation for his Honour to reject the evidence because it was "unfairly prejudicial"; if by making that finding his Honour was referring to the power under s 137. If, however, his Honour was not intending by that finding to indicate that he had performed the balancing exercise under that section, then, with respect, I do not understand what that finding meant or how it was relevant to the exercise of the discretion under s 90. 113 His Honour also took into account, when considering the discretion under s 90, the seriousness of the offences with which the respondent was charged. Although this was a matter that was used in favour of the Crown and no complaint was made about it in the grounds of appeal, I believe that I should express my opinion that it is not a relevant factor to be taken into account in the exercise of the discretion under s 90. As I have indicated, the question arising under this section is whether the admission of the evidence would give rise to an unfair trial. With respect, I do not see how the seriousness of the offence, for which the accused is to stand trial, can have any relevance to an assessment of whether the trial would be unfair as a result of the admission of the evidence obtained by police misconduct. In my view, it simply cannot make any difference to the outcome of that assessment whether the accused is standing trial for murder or whether the trial relates to a charge of stealing from a shop. If the reception of the evidence leads to an unfair trial and it results in a conviction, there must be a miscarriage of justice regardless of the nature of the offence to which the conviction relates. 114 In the penultimate paragraph of his judgment his Honour stated:

[187]

In my submission because of the circumstances and the way in which the accused dealt with the attempts by the police to get him to talk to them, the probative value of the evidence is out-weighed by the danger of unfair prejudice. The unfair prejudice is enormous if the admissions go before the jury; they are more than likely to find the accused guilty. But the way in which they were achieved and the expression used by the accused does not give them the probative value that outweighs that danger of unfair prejudice. 119 Generally speaking, the issue as to whether a statement made by an accused amounts to an admission or not is a question of fact. It is a matter for the jury to consider arguments, of the nature of those contained in the written submission quoted above, and to determine for themselves whether they are satisfied beyond reasonable doubt that the accused made an admission and, if so, whether it is sufficiently reliable for the jury to act upon it to convict the accused of the offence to which the admission relates. Whether they should act upon the evidence is a matter for them and not for the trial judge. There is no power under s 137 to reject evidence of an admission simply because the trial judge believes that the jury should not find that the admission was made: R v Singh-Bal (1997) 92 A Crim R 397. Nor in my view does the trial judge have any power to reject the admission simply because, in the judge's view, the jury should not act upon it to convict the accused. If it were otherwise, it would be tantamount to the trial judge ruling that a conviction based upon the evidence would be unsafe and unsatisfactory and a trial judge does not have that power; R v R (1989) 18 NSWLR 74; Doney v The Queen (1990) 171 CLR 207. 120 Section 137 is only engaged where the probative value of the evidence is outweighed by its unfairly prejudicial effect. Unfair prejudice under the section arises where there exists the probability that the jury might misuse the evidence in some way other than for the purpose for which it was placed before them R v BD (1997) 94 A Crim R 131 at 139; R v Serratore (1999) 48 NSWLR 101 at [31]; Papakosmas v The Queen (1999) 196 CLR 297 at [91]-[93]. If the evidence is relevant and if there is no likelihood of the jury misusing the evidence in some way, then its probative value, or its lack of probative value, is a matter for the jury. 121 I accept that the section also applies where the jury may give more weight to a particular piece of the evidence than it deserves: R v Yates [2002] NSWCCA 520 at [252]. But that consideration is not based simply upon the assessment of the probative value of the evidence. There must be some prejudice emanating from the evidence that will be likely to cause the jury to over-react to it in an illogical or irrational manner: Papakosmas at [92] or to rely upon it on a basis that was logically unconnected to the issues in the case: R v Taylor [2003] NSWCCA 194 at [93]. In exercising the power contained in the section, the trial judge should have regard to what warnings or directions might be given to the jury to ensure that such prejudice does not arise. 122 The only prejudicial effect of the evidence arising from the second conversation was its capacity to prove that the accused committed the offences upon which he was to stand trial. Defence counsel in her submissions before Shaw J in the passage I have underlined, accepted that this was so. If counsel was suggesting that the jury would simply convict the accused, regardless of what weight they gave to the evidence, that is not the type of prejudice with which s 137 is concerned: R v GK (2001) 53 NSWLR 317 at [74]; Papakosmas at [91]; Festa v The Queen (2001) 208 CLR 593 at [22]. The jury could not use the evidence for any purpose other than as an admission of guilt and it was incapable of giving rise to any prejudice that might operate unfairly on the jury's assessment of whether to act upon it. If his Honour thought it necessary to do so, he could give what directions, warnings or comments were needed to ensure that the jury made an objective evaluation of the evidence. 123 In my respectful opinion, his Honour should have held that the power under s 137 did not arise. However, it appears to me that his Honour purported to apply the section in rejecting the evidence of the second conversation. When ruling that the evidence was inadmissible under s 138, his Honour held that the material was "unfairly prejudicial to the accused and should not be admitted". When apparently dealing with the discretion under s 90 his Honour stated:

[188]

…….[The respondent] can complain that the police elicited evidence that they could not obtain lawfully in an ERISP procedure and the court may consider that the probative value of such evidence is outweighed by unfair prejudice to the accused. 124 Insofar as it appears to me that his Honour may have determined that the evidence was unfairly prejudicial to the accused, either as a distinct ruling or as a consideration relevant to some other discretion, his Honour's decision to reject the evidence cannot stand. Did the police conduct produce unfairness? 125 Although it should be evident by now that I would allow the appeal and quash the order made by Shaw J, I believe I should say something about what is the crucial issue in this matter, notwithstanding that it may be necessary for a judge to consider the issue afresh. It was fully argued by the parties on the hearing of the appeal and I have formed a firm view about it. 126 Understandably, considerable reliance has been place by counsel for the respondent on his Honour's finding that the police knew that the respondent would probably not have made any admissions, if he had known that the second conversation was being recorded. It was submitted that this fact, together with the other matters listed in paragraph [81] of his judgment, set out above, justified his Honour in finding that it would be unfair to admit the second conversation. 127 In my opinion it is too simplistic to reason that, because the respondent may not have made admissions had he known his conversation was being recorded, it was unfair to use the admissions against him. The fact that the respondent was tricked into believing that the conversation was not being recorded might enliven the discretion to reject the evidence, but in my view a relevant factor in deciding whether it would be unfair to admit the evidence is the reason why the respondent would not have spoken had he known the true situation. This is a matter touched on by Shaw J and those arguing the matter before him, but was not apparently examined in any depth. 128 As his Honour accepted in paragraph [80] of his judgment set out above, it was not unfair to admit the evidence simply because it was being surreptitiously recorded by police. Nor, in my view, was it necessarily unfair to admit the conversation simply because the respondent would not have spoken had he known that his conversation was being recorded. For example, if his objection to the police recording the conversation was that he did not want the police to have a reliable record of what he was prepared to say to them, I find it difficult to understand how it would be unfair to the respondent to have admitted against him a reliable account of what he freely and voluntarily said to the police. 129 I would see nothing improper, for example, in the police covertly recording an interview with a suspect at a police station, where the suspect was prepared to answer questions but refused to have the interview electronically recorded. In such a situation it would not be unfair to an accused to admit the evidence of the recording, even though, if the suspect had known of the recording, he would not have answered the police questions. It would be less unfair than if the Crown were to lead evidence of the conversation based upon a record made by police some time after the conversation from their memory of what was said during it. 130 It is on the issue of what the accused was led to believe by the police on 15 May that the first conversation assumes some importance. From the passages of that conversation, which I have set out earlier in this judgment, it is apparent that the respondent was generally prepared to answer questions about the Kress robbery provided that what he said was not recorded in any way. The only reason he gave for not wanting his answers recorded was that he did not want to "look like a dickhead". He had been informed on at least two occasions that what he said might be recorded and might be used in evidence at court. 131 From what the respondent is heard to say as a result of the use of a listening device in the Bass Hill premises and referred to in paragraph [28] above, it appears that the respondent thought that what he had said to the police was "off the record"; that is in contradistinction to "the confessions" that the police wanted. If this statement is taken to mean that the respondent believed that what he had said to the police in the first conversation would not be used as evidence against him, there was nothing that the police had said or done to induce that belief. In any event, so far as the investigating police were concerned, that belief was well justified. According to their evidence on the voir dire, Detectives Abdy and McLean did not believe that his statements would be admitted into evidence because they were not electronically recorded and that was the reason that they did not arrest him for the Kress robbery on 24 April. 132 It may also have been the fact that on 15 May the respondent believed that anything he said to the police was "off the record" and could not be used as evidence against him because he understood it was not being recorded. But if that were his belief, again the police had, at least at the commencement of the conversation, done nothing intentionally or recklessly to induce it. At worst, they simply tricked the respondent into believing that they were not recording the conversation. 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. 134 In the present case I do not believe that there was any evidence before Shaw J from which it could be inferred that, before the commencement of the second conversation, the police set out to cause the respondent to believe that anything said to them by him would be "off the record" and would not, therefore, be used in evidence against him. Subject to any finding of other relevant misconduct by the police during the course of the interview, I am of the opinion that it would not be unfair to admit evidence of the second conversation simply because the police had tricked the respondent into believing that they were not recording what he was saying to them, and, therefore, to speak when he otherwise would not have done so. 135 However, it may be that at a point in the conversation, when the respondent was being reticent in supplying the information that the police were attempting to obtain, the police did at least attempt to induce in the respondent a belief that what was being said would remain between the three of them and would not be used in evidence against him. That point may have arisen during that part of the conversation set out in paragraph [38] above, and in particular when Detective Abdy said:

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