R v Sophear Em

JUDGMENT OF : Ipp JA at 1; Hulme J at 2; Howie J at 3 DECISION : Appeal allowed. Order that the order made by Shaw J rejecting the evidence of the conversation of 15 May 2001 be vacated.

CATCHWORDS : Evidence - Admissibility - Admissions - Police secretly record conversation with suspect - Failure to fully caution - persistent questioning - Whether evidence obtained improperly or whether admission of evidence unfair or unfairly prejudicial - Application of statutory discretions Criminal Appeal Act (1912) (NSW) , s. 5F; LEGISLATION CITED : Evidence Act (1995) (Cth)- s. 138, 90, 137, 138(3), 84, 85, 139, 139(5), 139(1), 138(2),138(1). Crimes Act (1914) (Cth) Pt 10A , 355(2) Listening Devices Act 1984 (NSW). Bozatsis and Spanakis (1997) 97 A Crim R 296; R v Lisoff [1999] NSWCCA 364; R v Phan [2003] NSWCCA 205; R v Lavery (1978) 19 SASR at 526-527; Swaffield and Pavic v The Queen (1997) 192 CLR 159; Foster v The Queen (1993) 67 ALJR 550 ; R v Clarke (1997) 97 A Crim R 414; Van Der Meer v The Queen (1988) 62 ALJR 656; Duke v The Queen (1989) 180 CLR 508; CASES CITED : R v Singh-Bal (1997) 92 A Crim R 397; R v R (1989) 18 NSWLR 74; Doney v The Queen (1990) 171 CLR 207; R v BD (1997) 94 A Crim R 131; R v Serratore (1999) 48 NSWLR 101; Papakosmas v The Queen (1999) 196 CLR 297; R v Yates [2002] NSWCCA 520; R v Taylor [2003] NSWCCA 194; R v GK (2001) 53 NSWLR 317; Festa v The Queen (2001) 208 CLR 593; PARTIES : The Crown; Sophear Em. FILE NUMBER(S) : CCA 60375/03 COUNSEL : Applicant: J. Bennett S.C. Respondent: R. Hulme S.C, L. Flannery SOLICITORS : Applicant: C. K. Smith Respondent: N. Marshall

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70028/03 FILE NUMBER(S) : LOWER COURT Shaw J JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60375/03

IPP JA HULME J HOWIE J

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.

The Crown's appeal 9 The Crown's submissions in support of the appeal challenge Shaw J's order principally upon the basis that his Honour failed to make findings of facts crucial to the resolution of the objections taken to the evidence. In particular, it was submitted that his Honour failed to make any finding of fact upon which he could conclude that there was an impropriety for the purposes of s 138 of the Evidence Act. Further, it was submitted that his Honour failed to make findings on some of the matters listed in s 138(3) when determining not to exercise his discretion to admit the evidence. 10 In respect of the discretion under s 90 of the Act, the Crown submitted that his Honour misunderstood the nature of the alleged admissions made by the respondent and their relevance to the Crown case. It was further submitted that Shaw J gave "inappropriate weight to the fact that the accused would not have spoken if he had known that the conversation was being recorded". It was also submitted that his Honour had incorrectly applied s 137 of the Act. 11 The respondent submitted that there was ample evidence to support the findings made by Shaw J and his Honour's order rejecting the evidence. In particular, reliance was placed upon the conduct of the police in respect of the second conversation and his Honour's finding that they acted improperly. It was submitted that his Honour had exercised a discretion and there was no basis to set it aside.

Facts The Logozzo Robbery 12 On 7 January 2002 Mr and Mrs Logozzo, having just arrived home, were standing at the front door of their house when two men in dark clothing and wearing balaclavas and ski goggles approached them. One was armed with a handgun and the other a rifle. One of the men said "Do as we say and nobody will get hurt. Keep it quiet and nobody will get hurt". Mr and Mrs Logozzo walked into the premises followed by the robbers. They were ordered to lie on the floor. Other persons, who were in the house at the time, were ushered into the lounge room by one of the offenders. They were also told to lie on the floor. 13 The offender with the rifle ordered Mr Logozzo to go upstairs with him. As they were mounting the stairs, a scuffle took place and they both fell down the stairs into the lounge room. The offender with the pistol then moved towards Mr Logozzo and fired a shot striking him in the chest. As Mrs Logozzo reached over to her husband, a second shot was fired from the pistol and struck Mrs Logozzo in the right thumb. The offenders then left the premises. Mr Logozzo subsequently died of his wounds.

The Kress Robbery 14 On 17 January 2002 at about 11 pm Mr Kress opened the garage door of his home at West Hoxton and walked outside to the front of the house to smoke a cigarette. A Ford Laser vehicle drove to the front of his premises and the three occupants alighted. They were each wearing dark clothing, a black ski mask and ski goggles. One of them was armed with a military-style rifle, one with a handgun and the other with a knife. They forced Mr Kress into his house and he and his wife were ushered into the bar area. Mr Kress was told to lay face down by the offender with the handgun and his hands were tied behind his back with black electrical cable ties. Other occupants of the house were brought to the bar area by one of the robbers and were each forced to lie on the floor. Their hands were also tied behind their backs. 15 The offender with the handgun demanded money from Mrs Kress, who went to her handbag and handed him $2,000. She was then ordered to lie on the floor. Each of the occupants was then required to remove any jewellery he or she was wearing and give it to the robbers. The offender armed with a knife searched the rooms upstairs and stole three mobile telephones, a watch owned by Alyson Kress and three wallets. He went to the bar area and took a number of bottles of alcohol. He then cut pieces of silver coloured duct tape and placed them over the mouths of the occupants. After warning them not to contact the police, the robbers left the premises.

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.

The First Conversation 22 Following the search of the Bass Hill premises, police purportedly arrested the respondent, although they did not tell him the offence for which he had been placed into custody. He was taken to Blacktown Police Station and processed under the procedures in Part 10A of the Crimes Act. He, accordingly, had read to him, and was given, a document setting out his rights while in custody, including the following:

You do not have to say or do anything while in police custody. This does not apply if the law says you have to answer police questions or do something they ask you to do. Anything you do say or do may be used in evidence. 23 During the period in custody he was permitted to speak to a lawyer by telephone. A buccal swab was taken from him at about 4.30 pm and he was shortly thereafter released from custody without being charged with any offence. 24 Before his release, Detectives Abdy and McLean took the respondent to an interview room for the purposes of conducting an ERISP. Detective Abdy cautioned the respondent, including telling him that what he said "may be recorded and later given in evidence at court". The following exchange then occurred:

Abdy: The questions that I ask you I want to record on this video and audio machine and I'll give you a copy of the interview.

Resp: I'm not going to say anything to you if you turn that on. I don't want to look like a dickhead.

Abdy: I can turn the audio tapes on and the video off if you want.

Abdy: Well how about I turn the tapes on and you state your objection on them.

Resp: No. 25 The interview continued for a short time during which the police informed the respondent of what they knew about the Kress robbery and their belief that he was involved because of what they found in his room at Bass Hill. They also said that they wanted to know where the pistol used in the robbery was. The following then occurred:

Abdy: If you won't be interviewed on the tape that's fine. Well just speak to you. But we need the gun back so what do you think?

Resp: If I talk to you, I don't want anything recorded on the tapes.

Abdy: It's better that we record what we say, it'll be just like a conversation, the same as the one we are having now.

Resp: No tapes. But what do you want to know, like where is the gun and stuff?

Abdy: Yeah that would be a good start. We are going to leave the room and we'll be back in a couple of minutes. After the Detectives returned to the interview room the following took place:

Abdy: Well Sophear what is it going to be, are you going to talk to us or not?

McLean: There I've turned them off (turned ERISP machine off), even our phones are off.

Abdy: I'm not going to sit here naked with you mate, you'll have to trust us. We have been up front with you this morning and we haven't tried to trick you.

The conversation continued unrecorded. The Crown alleges that during the course of it the respondent made admissions in relation to his involvement in the Kress robbery. 26 At another point during the interview the Detectives again left the room and on their return the following took place:

Abdy: Sophear, there is one other thing that [I] want to speak to you about, so just listen to what we have to say. You don't have to say anything unless you want to. But whatever you say or do may be recorded and later given in evidence at court.

Abdy: It is the same as before. Nothing in this room is turned on. Mick [McLean] is actually from the Homicide Unit working at Green Valley with me and other police. We are investigating the murder of Joe Logozzo.

Resp: I know nothing. 27 The respondent, thereafter, repeatedly told police that he did not want to answer questions about the murder and ultimately requested that he be allowed to speak to a solicitor. When the respondent returned to the interview room, after contacting a solicitor but failing to have him attend the police station, the following took place:

Abdy: What is it going to be mate. How about I just put these tapes in and you tell us whatever you want.

Abdy: I told you before, I can leave the video out if you want.

Abdy: We can record the conversation in our notebook and get you to sign it if you are happy with what has been written.

Resp: No. I don't want to sign anything or have anything written down.

Abdy: Sophear we can't sit here all day. We are giving you a chance to tell us your side of the story. If you don't, all we have is the statements from other people in the house. If it was an accident, tell us, if you didn't shoot him tell us that.

Resp: I'm not denying it, I just don't want to talk about it just now, I have too much going on in my head.

Abdy: Mate we need to know what happened, for all we know Liane drove you there in her car.

Abdy: Well tell us that on the tapes. We need to know.

Abdy: Alright I'll take you back to the charge room while we make further enquiries then. 28 After the respondent was released, the interviewing police attempted to compile a record of the conversation from their recollection of what had taken place. During their evidence before Shaw J, the investigating police maintained that they released the respondent without charging him for the Kress robbery because they believed that, given the uncorroborated nature of the admissions made by him, they had insufficient evidence to charge him with any offence. 29 The Crown alleges that, as a result of answers given by the respondent in that conversation, he had in effect admitted to being one of the persons involved in that offence. The Crown case is that he told police that he had been in possession of the .32 calibre pistol during the robbery but that he had later sold it. It is alleged by the Crown that the respondent told police that he had chosen the Kress premises because "they looked rich, nice house, Commodore in the driveway".

Further investigations 30 On 24 April 2002, pursuant to warrants issued under the Listening Devices Act, two devices were installed at the premises in Chester Hill Road, Bass Hill. During that day the respondent was heard to say to another person in the premises:

"They asked me about a red car, I said, I don't have a red car. They want confessions, I said ……… off the record ………….. I said 'Look I will talk to you but …………….". 31 On 30 April 2002 investigating police attended these premises and spoke to the respondent. They asked him whether, if they brought some photographs of different types of guns, he would be prepared to look at them and show them the type of gun that he had sold. The respondent said, "I will have a look but I might not point anything out". 32 On 7 May 2002 warrants were issued authorising Detectives Abdy and McLean to wear listening devices for the purpose of recording any conversations they might have with the respondent. 33 On 13 May 2002 they attended the Bass Hill premises, each wearing a listening device, but they were informed by Arno Do that the respondent was not at home. The officers encouraged Do to tell the respondent that they did not want to arrest him

The Second Conversation 34 At about 11.55 am on 15 May 2002 Detectives McLean and Abdy, again each wearing a listening device, attended the Bass Hill premises. The respondent answered the door and Detective Abdy said to him, "Mate we want to talk to you again. Do you want to grab some pants?" The respondent asked "Where at?" Detective Abdy said, "No we are not going to the police station or nothing. We've just got to show you some photos and talk to you for some 5 or 10 minutes. We don't want to do it here, Okay?" 35 After the respondent had dressed, he went with the police into the motor vehicle. Detective Abdy said to him, "Mate we are just gunna go and have a talk to you, I think there's a park or something up here. We're not going to take you to the police station or anything. So you know you're not under arrest, O.K.? As I told you before, we're going to come back and talk to you. Remember we said we might come back and show you some photos of some guns?" The respondent replied, "No". 36 When asked in evidence before Shaw J why they had taken the respondent to the park, Detective Abdy said, "…….it was an area where he was free to walk off if he chose. We took him to an area where the sound recording was better and it was less traffic and it was sheltered to some degree because we were sitting in the park". He said that he knew the respondent hated going to the police station but he acknowledged that, if the respondent had been taken to the police station, the provisions of Part 10 A would have applied. 37 During the drive to the park, which took about 5 minutes, Detective Abdy reminded the respondent of the last occasion when he was taken to the police station and then said, "Remember they gave you a piece of paper that said you didn't have to say anything to the police?" The respondent replied, "Yeah, I know that". The conversation continued:

Abdy: And the same goes again. You don't have to say anything to the police if you don't want to, O.K.?

Abdy: You're just making us happy. No, mate, we only want to know, we only want to know the truth. Don't say things just to make us happy.

McLean: You know. Mate, you don't have to talk to us if you don't want to. 38 The police suggested to the respondent that they sit on a bench under cover in the park as it was raining. During the course of the conversation that then took place, the respondent was asked if he remembered speaking to the police about the Kress robbery. The conversation included the following:

Abdy: We want to know, what you said when you did the home invasion at Hoxton Park. Do you remember that? Mate, I'm struggling to remember, I'm struggling to remember what you said. You said you picked the, why did you pick that house out?

The respondent continued to make it clear that he did not wish to talk about the Kress robbery. 39 The respondent was shown some pictures of firearms and there was discussion about them. During the course of this conversation, the respondent was asked whether any of them were similar to the gun he had sold. The following then occurred:

McLean: Mate, you know yourself that day that nothing was recorded, you know that, so we're trying to remember to the best of our ability.

Abdy: Mate, we didn't even take you to a police station, it's not hard; I mean we spoke to you once before and you wanted to talk to us, we're not, we're not trying to trick you or anything.

McLean: We told you on the way down in the car, right, it's your right, if you don't want to talk to us you don't have to, you know that?

McLean: Yeah. Well, that's what we want, is just a little bit of cooperation here.

Resp: Yeah, I told you it, you guys know. I know you won't forget. 40 A little later in the conversation the following was said:

Abdy: I am not trying to, mate, I'm not trying to con you, we told you before, we're investigating a home invasion and a murder. Yeah.

Abdy: And I told you they're pretty serious. Would you agree [with] that?

Abdy: Yeah, and you told us you did the home invasion. You remember you told us that? Hey? Mate, and you said you wanted to speak to us about a murder, you wanted to talk about the murder but you didn't want to talk to us, you didn't want it recorded at the police station. Do you remember talking to us about that?

Abdy: Mate, you said you were going to tell your side of the story in court. You said all that to us, didn't you?

McLean: I think you said, I'm not gunna deny it, but I don't want to talk to you about [it] right now, or something like that anyway, you know, you said, my head's spinning, or something like that.

Resp: I'm not going to deny it, I said, that I didn't do it or I'm not going to deny it.

Resp: I'm not going to say that I did it and I am not gunna deny it.

Abdy: What would that, honestly, if you were us what would you think we believe then if you said that to us?

Abdy: We know what you did what, you did the home invasion or you did the murder?

McLean: Well, mate, you told us at the police station that you did the home invasion, all right, and what I just said to you then about the murder ---

Resp: Yeah, that's what you said you were going to do.

Abdy: O.K. But we still need to speak to you about this other stuff, don't we? Mate, what are we gunna do? How are we gunna, how are we gunna get our lives back to normal?

Abdy: Beg your pardon? Our lives aren't gunna get ---

Abdy: Yeah, well, that's what we've got to do, we've got to work out how you can start your new life now whatever, whatever that is. What do you think its gunna be?

Resp: I don't know. ………………………………………………………

Abdy: Sophear, we haven't tried to trick you once, have we? We've brought you to a God damn park. We're not, we haven't got you in the police station.

McLean: Mate, you know you're [not] under arrest. We told you that as soon as you got in the car. Right. We told you that you don't have to talk to us if you don't want to, you know that, all right. We want to try and clear up a few things here.

Abdy: We want to try and eliminate who else was involved in it. All right. We'll give you some names and you tell us if they're involved in it. Arno?

Abdy: Well, who drove out there then? You didn't walk there. Who drove youse out there?

The answer, which is marked with an asteric, as recorded in the transcript contains a question mark. Listening to the tape, however, reveals that it is not a question. 41 A little later in the conversation the respondent said:

"You guys know that I am involved, right, you think that I am involved, Arno and Liane are not involved". 42 Later the following occurred:

McLean: Mate, what we're trying to work out is, right, who, who shot this bloke, all right, and, right, if it's the case that you shot him or if it's the case that Mao shot him, that's what we want to know, and we want to know, right, what, what your intention was, right. If you intended to kill somebody, well, or if it was and accident, that's what you need to tell us, all right, that's what I'm interested in and we're interested in. Do you understand that?

Abdy: Mate, when are you, when you gunna talk about it?

Abdy: Who else can you talk about it, apart from us?

Resp: Why would I want to talk to someone about it?

Abdy: It's, it's obviously playing on your mind. Is that right?

Resp: Yeah. I'm the type of person, I keep things to myself.

Abdy: Maybe you might feel better if you tell us. It's not as though we are going to slap the handcuffs on you and take you away otherwise we'd be at the police station if we were gunna do that, wouldn't we? Mate, one of these days you're gunna want to talk about it, aren't you? You can't keep it in forever, imagine [what] it's going to be like. When you, you're sitting there nodding your head, so I'm assuming that you mean yes.

Abdy: We don't know, we don't know these things, mate, we need, we need to find out what happened on that night. Mate, if youse went there and things got out of control then they got out of control, we need to know that, but if it was a different kettle of fish, you know, if you go there and you mean to shoot a bloke, see I don't know.

McLean: Do you understand about that, what he is saying?

McLean: Well, what happened then? If you didn't mean to shoot the bloke, what happened? It's all, you know--

McLean: Mate, where did the struggle happen, right, bearing in mind he can't tell us?

McLean: What about, what about the other people in the house, where were they?

44 Further in the conversation the following was said:

Abdy: Mate, just a couple more things. You said there was a struggle on the stairs, all right. When there was a struggle on the stairs, it was with the bloke and somebody else?

Abdy: And what did you think was going to happen then?

Abdy: What did you think was going to happened then?

Resp: If he got, if he got like hold of it, could have started shooting it.

Resp: If he got a hold of it he could've started shooting.

Abdy: So what, what happened then, you just shot him?

Resp: That was like a warning shot first and then like, she put her hand up like that, but didn't know,…….and then…….he was still trying to take it.

Resp: No this is like down. Cause he was struggling all the way down.

McLean: Who was he struggling with, you or the other person?

Resp: Can't say. 45 A little later the following occurred:

McLean: Like I said you don't have to talk to us, you know that, you knew that as soon as we started speaking with you, but we just want to try and get a few things clear in our mind[s] as to what happened there that night, all right. So whether we know it was an intentional thing or whether we know it was an accident, you know, or if it was you that shot him or it was the other bloke right, if that was Mao, all right. Do you understand?

Abdy: It wasn't, you don't want to tell us who it is?

Although the conversation continued, it is unnecessary to set out any more of the transcript.

The hearing before Shaw J 46 It is necessary to refer briefly to the arguments and submissions relied upon by the parties before the primary judge as showing the extent of factual matters in dispute and the issues which his Honour had to determine in reaching his decision whether to reject the evidence.

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:

Q. You were determined to have him admit his involvement in the murder, weren't you?

A. That was what we had hoped would happen but obviously that is out of our control.

Q. Well, that was why you were there in the cold and the rain on a park bench, wasn't it, that day?

Q. And when the conversation stalled from his end, from time to time leapt in by saying things like, "We are not trying to trick you". Will you agree with that?

Q. To make him feel relaxed about what he told you?

Q. To give him a false sense of security about the safety from prosecution of his position?

A. No. 51 During the cross-examination of Detective McLean the following took place:

Q. On 15 May of last year you were very interested in having the accused confess to involvement in the murder that had occurred on 7 January?

Q. You wanted him to believe that the conversation was not being recorded?

Q. You wanted him to believe that the conversation would not be used against him in any court proceedings?

A. I wouldn't say that necessarily would be the case. My view was I certainly didn't want him to know the conversation had been recorded.

Q. And you know, you knew then, that if he thought it was being recorded he wouldn't have spoken to you?

A. I formed the view that he wouldn't have spoken to me as a result of previous conversations I had with him on 24 April at Bankstown Police Station.

A. If he had known that we were going to electronically record the conversation, no, he wouldn't have spoken to me.

A. I wouldn't say - I wouldn't use the word "trick", no.

Q. You wanted to have him believe that whatever he said that day was between the three of you?

Q. That was what you set out to have him believe though, wasn't it?

A. No. 52 It is clear that the submissions for the defence were based, to a very significant degree, upon findings of fact being made by his Honour contrary to the evidence of the investigating police officers. For example, it was alleged that the police officers had deliberately chosen not to arrest the respondent after the first conversation, notwithstanding that they had ample evidence to charge him with the Kress offence, in order to gain an opportunity to extract a confession to the murder from him. The submission was put to his Honour that he should reject the Detectives' assertions that they did not believe that they had sufficient evidence to charge the respondent with that offence because the admissions in the first conversation were uncorroborated by any contemporaneous record.

Grounds of objection 53 The respondent relied upon a number of sections of the Evidence Act to argue that Shaw J should exclude the evidence of the second conversation. In the written submissions prepared by counsel appearing before his Honour, the bases of the objections to the evidence were set out as follows:

(i) having regard to the circumstances in which the admission was made it would be unfair to the defendant to use the evidence (s 90 Evidence Act)

(ii) it cannot be shown that the making of the admissions was not influenced by oppressive conduct by the police (s84 Evidence Act)

(iii) the circumstances in which the admissions were made were such as to make it not unlikely that the truth of the admissions was adversely affected (s85 Evidence Act)

(iv) the evidence was obtained improperly as the police failed to comply with the requirements of Part 10A of the Crimes Act (s138)

(v) the evidence was obtained improperly as the accused was not cautioned before he engaged in conversation with the police officers (s138, s139 Evidence Act)

(vi) the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused (s137 Evidence Act). 54 Shaw J ultimately determined that neither the objection to the evidence under s 84 nor s 85 of the Act had been made good. As there is no challenge to these findings by the respondent on this appeal, the arguments and submissions made to his Honour in respect of those two sections can be put to one side.

Sections 138 and 139 (a) Submissions before his Honour 55 It was submitted on behalf of the respondent that the evidence should be rejected under s 138 of the Evidence Act because of a breach of Part 10A of the Crimes Act. The argument was that, by reason of the definition of arrest in s 355(2) of that Part, the respondent was under arrest at the time of the second conversation and should have been dealt with in accordance with that Part, including being placed in the care of the custody manager at the police station. It was argued that the failure to comply with Part 10A was an impropriety within the meaning of s 138. 56 Section 138 of the Evidence Act states:

Exclusion of improperly or illegally obtained evidence

(1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. 57 It was further submitted that the respondent was under arrest within the terms of s 139(5) of the Evidence Act because he would have understood that he had no option but to accompany the police, particularly as he was not informed that he did not have to do so. Reliance was placed upon what was said by King CJ in this regard in R v Lavery (1978) 19 SASR at 526-527. Therefore, it was argued, an impropriety was found in the failure to give the respondent a caution in the terms set out in s 139. 58 Section 139(1) and 139(5) of the Act are the only relevant provisions and they state:

(1) For the purposes of section 138 (1) (a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if: (a) the person was under arrest for an offence at the time, and (b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person, and (c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence. (5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if: (a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning, or (b) the official would not allow the person to leave if the person wished to do so, or (c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so. 59 It was also argued that the warrants, obtained under the Listening Devices Act and authorising the use of devices by the Detectives McLean and Abdy, were obtained for the purpose of abrogating the respondent's right to silence. The submission was made that the warrants should be set aside as being obtained for an improper purpose. It was further argued that the affidavit in support of the application to obtain the warrants misled the issuing justice and, therefore, it was an impropriety for the purposes of s 138. 60 The Crown's written submissions, having referred to an alleged breach of the Code of Conduct, continued with the following passages:

However, there remains the element of impropriety that might be implicit in the representations by the police officers, or expressed by them in the course of the conversation with the Accused on this day (Evidence Act 1995 s 138(1) aided by subsection (2), in particular (b) thereof).

In saying to the Accused that they are not trying to trick him, and making clear that they were not intending to take him to the police station, and that he was not to be handcuffed, there is scope for the argument that implicit in the utterances by the police was the representation that the conversation was not being recorded.

Of these utterances, it is arguable that the assertion by police that they were not trying to trick the accused was a false statement. (Evidence Act 1995 s 138(2)(b)).

The Crown then noted that it was for the respondent to prove any impropriety, including whether there was a false statement made by police within the terms of s 138(2). 61 The Crown further submitted that, even if his Honour found there was impropriety, it would not have been significant and that the probative value of the evidence was high. 62 In respect of s 139, the Crown submitted that the section did not apply because the respondent was not under arrest on 15 May and, therefore, there was no impropriety in the failure of the police to caution him in the terms referred to in the section.

(b) Issues to be determined 63 The central issue in resolving the respondent's argument that the evidence should be rejected under s 138 was whether his Honour was satisfied on the balance of probabilities that the respondent had established an impropriety on the part of the investigating police that was causally connected with the admissions made by the respondent in the second conversation. If he were not, then there was no basis upon which the evidence could be rejected under this section. 64 There were in essence five bases of impropriety or illegality asserted against the investigating police by the respondent in relation to the second conversation. These were as follows:

(a) the police had not arrested the respondent after the first conversation in order to obtain admissions to the Logozzo offence;

(b) the investigating police had failed to comply with the Code of Practice;

(c) the police had falsely led the respondent to believe that the second conversation was not being recorded;

(d) the police had failed to comply with Part 10A of the Crimes Act ;

(e) the investigating police had failed to properly caution the respondent before the second conversation. 65 The last two allegations contained a crucial element that had to be determined against the Crown before it could be found that the police had acted improperly. This was that the respondent was under arrest, within the terms of the relevant provisions, at the time of the second conversation. That issue required the respondent to prove one of the following existed at the time of the second conversation:

(i) the police officers believed that there was sufficient evidence to establish that the respondent had committed an offence that was to be the subject of the questioning;

(ii) the police would not have allowed the respondent to leave if he wished to do so; or

(iii) the police had given the respondent reasonable grounds to believe that he would not be allowed to leave if he wished to do so. The investigating police officers had given sworn evidence on the voir dire denying (i) and (ii) and the respondent had not given evidence as to (iii). 66 If Shaw J were satisfied that there was a relevant impropriety, then it was necessary for the Crown to satisfy his Honour that the evidence should be admitted. The exercise of the discretion to admit the evidence, notwithstanding any impropriety by the police, required his Honour to consider the matters in s 138(3) and make further findings of fact, including findings in relation to the nature and seriousness of the impropriety and the importance of the disputed evidence to the Crown case. 67 Shaw J made it clear that, in his view, the critical provision was s 138. He declined to find that there was any conduct on the part of the police that would have led to the rejection of the evidence under s 84 of the Act. In that regard his Honour said:

Indeed, I believe the police behaved properly in all of the circumstances. I accept the submission of the Crown Prosecutor that [the police in] honest belief, in pursuit of evidence relating to a serious and tragic crime, behaved in a way which was understandable.

His Honour also stated that he did not uphold "the position of the defendant as to the reliability of the admissions pursuant to s 85 of the Evidence Act ".

(c) His Honour's reasons for rejecting the evidence (i) Failure to caution the respondent 68 In respect of the issue as to whether the police acted improperly in failing to caution the respondent, his Honour said:

[43] It is for the accused to satisfy the court that this evidence should be excluded. However, given that the informal caution given to the accused on 15 May did not comply, in terms, with s 139 of the Evidence Act, the evidence obtained was, strictly speaking, obtained improperly and the Crown must satisfy the Court that it should be admitted on the balancing exercise permitted by s 138 of the Evidence Act.

The Crown complains that his Honour made no finding of fact sufficient to warrant a conclusion that the police had acted improperly in failing to give a warning of the kind referred to in s 139. 69 With respect, his Honour seems to have assumed, without a finding of fact to support it, that s 139 applied to the factual situation arising on 15 May. But as I have already indicated, one of the crucial facts that had to be determined by his Honour was whether the respondent was, at the time of the second conversation, "under arrest", as that term is understood for the purposes of s 139. The police told the respondent on at least two occasions in the recorded conversation that he was not under arrest. The officers gave evidence that they had not arrested him and that he was free to leave from the park at any time. The respondent did not give evidence and, for my part, I am not prepared to assume, contrary to submissions made before this Court, that his Honour must have inferred that the respondent had been given reasonable grounds for believing that he would not be allowed to leave the company of police if he wanted to do so. The respondent showed throughout the investigations that he was well aware of his rights and would exercise them whenever he thought it was in his interests to do so. 70 In any event, there was a significant dispute as to whether s 139 applied and, in my opinion, the Crown was entitled to have his Honour set out the reasons for concluding that the respondent had satisfied him on the balance of probabilities that a warning under s 139 was required. In my view the rejection of the evidence under s 138 in this respect was erroneous.

(ii) Exercise of discretion under s 138(1) 71 The Crown has argued that, in considering whether to exercise the discretion under s 138(1) in favour of the Crown, Shaw J erroneously took into account the necessity of ensuring a fair trial for the accused, a matter, which, in the Crown's contention, is not a relevant factor in determining the balancing exercise required by the section. Further, the Crown submits that his Honour erred in finding facts, or in failing to find facts, upon matters set out in s 138(3). 72 Because of the finding I have just made, it is strictly speaking unnecessary to deal with the exercise of his Honour's discretion under s 138(1). But as I believe that his Honour erred in that regard, I should indicate why I have come to that conclusion. The exercise of the discretion under the section was viewed by his Honour as a central matter in his reasons for excluding the evidence. His Honour remarked that, "[the discretion], it seems to me, is the essence of the present controversy". That being the case, the respondent is entitled to know this Court's views on the matter. 73

In respect of the discretion arising under s 138(1), his Honour said:

[44] Section 138 directs the court to perform a balancing exercise in which the desirability of admitting the evidence must be weighed against undermining public confidence in the administration of justice that would occur if the court condoned certain police misconduct. Further, the court must also ensure that the accused receives a fair trial. This consideration is paramount. Other factors that influence this decision include fundamental notions arising from the adversary system of criminal justice that requires the Crown to prove the elements of an offence beyond reasonable doubt. The two latter considerations provide the basis for an understanding of an accused's right to silence: see Azzopardi v The Queen (2001) 205 CLR 50.

The Crown asserts that this passage, in particular, reveals that his Honour misdirected himself as to the relevant considerations in exercising the discretion under the section. 74 The discretion under s 138 is similar to that which was described in Swaffield as the public policy discretion at common law. Of course, there is a significant difference between the discretion under s 138 and that at common law: the section requires that the Crown persuade the court to admit evidence that was improperly or unlawfully obtained. But just as at common law, the public policy discretion was distinct and separate from the unfairness discretion, so the discretion to admit evidence under s 138 is a distinct and separate discretion from that arising under s 90. The two discretions may overlap but they are not synonymous. Section 138 is not, in its terms at least, concerned with the court ensuring a fair trial for the accused. Certainly that is not a paramount consideration when exercising the discretion. The discretion exercised under s 138(1) seeks to balance two competing public interests, neither of which directly involves securing a fair trial for the accused. 75 In the joint judgment in Swaffield at [52] their Honours discuss the four bases at common law for rejecting evidence of admissions. The second of those was the discretion to reject evidence because its admission would be unfair to the accused, a discretion now found in s 90. The third was the public policy discretion, now found in s 138. Their Honours said:

The third basis focuses, not on unfairness to the accused, but on considerations of public policy which make it unacceptable to admit the statement into evidence, notwithstanding that the statement was made voluntary and that its admission would work no particular unfairness to the accused. The purpose of the discretion which is brought to bear with that emphasis is the protection of the public interest.

In Foster v The Queen (1993) 67 ALJR 550 at 540 it was stated that, although the unfairness discretion and the public policy discretion may overlap, their focus is different: in the former the focus is on the effect of the unlawful conduct on the particular accused and in the latter the focus is on "large matters of public policy". 76 The Crown further complains that when exercising the discretion under s 138(1), his Honour misdirected himself by referring to concepts that do not find expression in the section. In particular, complaint was made that his Honour found that it would be "oppressive and unfair" to the accused to admit the evidence and this was not a matter with which the section or the discretion, which it provides in favour of the Crown, was concerned. 77 After considering the matters mentioned in s 138(3), His Honour said:

Thus, in the exercise of a difficult balancing process I adjudicate that it would be oppressive and unfair to the accused to have the material that has been adduced admitted into evidence. It should be noted that the emphasis of the debate before this Court has been about the conversation on 15 May between the accused and the police officers in the park. The focus of that debate has been about the charge of murder. 78 As I have pointed out, the discretion under s 138 is not aimed at relieving the accused from unfairness resulting from the impropriety or illegality by which the evidence was obtained. Nor is the section concerned with whether it would be "oppressive" to admit the evidence, whatever that term might mean in the context of a challenge to the admission of evidence obtained improperly by the police. With respect, it seems to me that by focusing on concepts such as oppression and unfairness in the context of the discretion in s 138(1), his Honour may have let himself be distracted from what is the real focus of the discretion under that section and the competing public policy interests with which the discretion is concerned. In my opinion, his Honour's exercise of discretion miscarried in this regard. 79 After recognising that the list of matters mentioned in s 138(3) was not exhaustive, his Honour went on to consider the particular matters mentioned in that subsection. As to s 138(3)(a), his Honour said:

First, as to the probative value of the evidence, my assessment is that it is not high. It certainly does not unequivocally target the accused as the person who was the shooter or who otherwise committed murder.

This is a finding of fact and one challenged by the Crown on this appeal. 80 Before considering that finding and whether it is one that can be reviewed on appeal, it is necessary to refer to an earlier reference in his Honour's judgment to his assessment of the probative value of the evidence of admissions that the Crown sought to rely upon as arising from the second conversation. His Honour stated:

[46] In my view after hearing the audio tape of the 15 May conversation in open court and in chambers, and after reviewing the transcript of the tape, it cannot be concluded that there is any unequivocal admission of guilt of the serious crime alleged. The accused repeatedly said that he did not want to talk about the matter and the highest that the Crown can put the admissions is to ' the observation of the accused that: "I know what you guys believe…..you guys know that I did it ". It seems to me that this is not conclusive. 81 Later in his judgment when dealing with s 90 of the Act his Honour stated:

[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:

[52]…………..It seems to me that the police were endeavouring to do their job in a conscientious way and that there is no suggestion of dishonesty, nonetheless, in all of the circumstances it seems to me that the procedures were unfair to the accused person and that he was put under undue pressure, contrary to the Code of Practice, which was admitted into evidence and which guides the procedures of NSW Police officers and was contrary to the presumption of a right of silence which can be discerned from international treaties…………… 86 It should be noted that his Honour was at this stage concerned with the only impropriety he had so far identified, being the failure to give a caution. But his Honour introduced into his consideration of the s 138(1) discretion a consideration of a breach of the Code of Practice, and I shall deal with that matter shortly. 87 I should point out, in case any general misconception arises from the terms of the Articles of the International Convention on Civil and Political Rights to which reference is specifically made in s 138(3)(g), that there is nothing in the Convention that is concerned with a right to silence at the investigatory stage. The statement in Article 14, paragraph 3(g) of the Convention that a person is "not to be compelled to testify against himself or confess guilt" has nothing to do with the right to silence before trial. The paragraph commences with the words:

In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

There is then listed from (a) to (g) a number of guarantees concerned with the resolution of the criminal charge. It is clear, from this and the other paragraphs in the Article, that Article 14 is concerned with criminal proceedings before a court.

(iii) Breach of the Code of Practice 88 The Crown complains that his Honour erred insofar as he rejected the evidence on the basis that it involved a breach of the Police Commissioner's Code of Conduct. It was submitted that his Honour failed to make a specific finding about the seriousness of the breach or to apply the factors in s 138(3) when determining the consequences of the breach so far as the admissibility of the evidence was concerned. 89 Having determined that it would be oppressive and unfair to the respondent for the evidence of the second conversation to be admitted, his Honour then turned to consider the respondent's allegation that the police officers had breached the Code of Practice. If, as I believe to be the case, his Honour omitted to make any finding of fact justifying his conclusion that the failure to give a caution was an impropriety, the finding of "undue pressure" by the police in breach of the Code assumes some importance. This is so whether the matter is considered to be an impropriety under s 138, as his Honour dealt with it, or whether it is considered as giving rise to unfairness under s 90, as the parties dealt with it. 90 The relevant part of the Code appears to be the following:

Once a suspect makes it clear they will not answer anymore questions, as a matter of fairness to them, put the details of the allegations to them (eg: In fairness to you I am going to put the allegation to you. Do you understand that?). If the suspect comments and answers the allegations you may continue to ask questions until the suspect objects. However, once you put the allegation/s in full don't continue questioning suspects if they make it clear they are not prepared [to] answer questions. 91 There was a deal of evidence before his Honour about the purpose and relevance of the Code to police practices and about the understanding and knowledge of it by the investigating police officers. It is unnecessary for present purposes to review that evidence, but the Crown complains that his Honour did not give that material sufficient weight when assessing the significance of a breach of the Code. 92 However, his Honour recognised that a breach of the Code did not necessarily require that the evidence be rejected. After referring to decided authority to that effect, his Honour stated:

[56] In my opinion, the relevant question is whether there has been such misconduct that the trial of the accused would be unfair to rely upon evidence obtained as a result of that misconduct. This includes cases in which the misconduct, in itself, is of such seriousness that the courts cannot condone what was done merely to sustain a conviction. In such cases, the unfairness is obtaining a conviction at ' too high a price ' having regard to contemporary standards of what is expected of police by the community: Swaffield .

Subject to the criticism as to the relevance of unfairness when dealing with impropriety under s 138, I do not understand that the Crown cavils with this statement as accurately reflecting the law. 93 However, with respect, there does appear to me to be some force in the complaint that it is unclear from the judgment what his Honour would have found to be the consequence of the breach of the Code in the present case, if it were dealt with as a separate head of impropriety or as a matter giving rise to unfairness. But, if his Honour concluded that on the facts in the present case such an impropriety alone was "too high a price" for a conviction for murder based upon admissions which were voluntarily made, apparently reliable, and electronically recorded by the police, then, in my respectful opinion, such a conclusion was not reasonably open to him, especially in a case where his Honour found that "the police behaved properly in all the circumstances". If this had been the only impropriety found by his Honour, there was in my opinion no reasonable basis for refusing to exercise the discretion under s 138(1) and rejecting the evidence. 94 In any event, it is not the case that, simply because the police applied some pressure to an unwilling suspect to answer their questions, it will automatically follow that any evidence of admissions made as a consequence will be rejected under s 138, s 90 or otherwise. In R v Clarke (1997) 97 A Crim R 414, Hunt CJ at CL, with whom other members of the Court agreed, after considering decision of courts in this State and other jurisdictions stated (footnotes not reproduced):

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.

Section 90 (a) Submissions before his Honour 98 Section 90 of the Evidence Act states:

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if

(a) the evidence is adduced by the prosecution, and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

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".

(b) Issues to be determined 104 Section 90 in effect confers on the trial judge a discretion to reject evidence of admissions where to admit them would result in an unfair trial for the accused. It is unfairness arising from the use of the admissions by the prosecution that is central to the discretion under the section and not whether the police unfairly treated the accused. The purpose of the discretion is the protection of the rights and privileges of the accused. It is concerned with the right of an accused to a fair trial and includes a consideration of whether any forensic advantage has been obtained unfairly by the Crown from the way the accused was treated; Swaffield at [78]. There may be an overlap between issues of voluntariness, reliability, fairness to the accused and the public policy discretion; ibid at [74]. 105 In the joint judgment of Toohey, Gaudron and Gummow JJ in Swaffield, and relying upon Van der Meer v The Queen (1988) 62 ALJR 656 at 662, and Duke v The Queen (1989) 180 CLR 508 at 513, their Honours stated at [54] (footnotes not reproduced):

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.

(c) His Honour's reasons for rejecting the evidence 109 Having noted the factual differences and similarities between the present case and those in Swaffield and Pavic, his Honour stated:

[78]……..I am not persuaded that the essence of the exercise of the unfairness discretion in cases such as this lies in the fact that the conversation is secretly recorded. The fundamental difference between the results in Swaffield 's case and Pavic 's case is the significance of the identity of the representee, not the fact of a secret recording. That is, when police engage in subterfuge and then record conversations in secret, the court is called upon to adjudicate on the appropriateness of that conduct and whether it comes at too high a price to rely on such evidence because it gives the impramatur of the court to such conduct (see Fitzgerald P in R v O'Neill [1996] 2 Qd R 326 at 422 (in dissent, but cited by Toohey, Gaudron and Gummow JJ in Swaffield at 198; see further Kirby J in Swaffield at 220; Vale v The Queen [2001] WASCA 21).

[79] When, by comparison, the person is an agent of police the court looks to the freedom of the accused to speak, and the extent to which that freedom has been impugned: Pavic's case.

[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]:

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:

[81] Some of the relevant circumstances raised by the evidence on the voir dire that go to whether this evidence should be excluded are that: · Detective Abdy knew the accused would not speak with them if he knew he was being recorded; · the accused repeatedly insisted that he did not wish to speak about the home invasions (though this is denied by Detectives Abdy and [McLean] on the basis that the 'body language' of the accused indicated that he would speak with them) · some of the questioning was leading, verging on impermissible cross examination eliciting specific answers rather than allowing the accused to 'speak'; · the conversation involved some level of subterfuge in that the police encouraged the accused to talk about whether the shooting was an 'accident' in circumstances where, pursuant to the felony murder rule, such circumstance is irrelevant to the charge of murder; · Detective [McLean] expressed frustration and exasperation at the accused's request not to speak about the first home invasion; 115 I am prepared to accept, for present purposes and without coming to a concluded view on the matter, that it was open to his Honour to make these findings on the evidence before him and that they were relevant to a consideration of whether the evidence of the second conversation should be excluded under s 90. I do have considerable doubts, however, about the last two dot points. But as I have come to the view that his Honour's discretion under that section miscarried by his having taken into account irrelevant considerations, it does not matter what view I take of these particular findings.

Section 137 116 The respondent submitted to Shaw J that his Honour should reject the evidence under s 137 of the Evidence Act. The section is as follows:

Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 117 In written submissions placed before his Honour the following appeared in support of the rejection of the evidence under this section:

It is submitted that the circumstances in which the accused made the "admissions", his repeated unsuccessful attempt to rely upon his right to silence, his deflection of questions, his non-committal answers, the information he couldn't remember, or didn't know, the fact that the information in the admission he made had been given to him by the police on a prior occasion and the way he expressed the admissions, raise for consideration whether what he ultimately said really constitutes an admission by him that that he committed the offence. 118 This submission provided no basis at all for the rejection of the evidence under s 137. The argument did not improve during oral submissions. Defence counsel after reading s 137 said (my underlining):

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:

…….[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:

Maybe you might feel better if you tell us. It's not as though we are going to slap the handcuffs on you and take you away otherwise we'd be at the police station if we were gunna do that, wouldn't we? Mate, one of these days your gunna want to talk about it, aren't you? You can't keep it in forever, imagine [what] it's going to be like. When you, you're sitting there nodding your head, so I'm assuming that you mean yes. 136 It would be open to a trial judge to find that, in this passage at least, the Detective was suggesting to the respondent that if, to use the vernacular, he got it off his chest, whatever he said would not be used to make out a case against him. If such a finding were made, the discretion under s 90 might be exercised to reject evidence of the conversation from that point on depending upon an assessment of the unfairness, if any, arising from what was said by the respondent thereafter.

What order should the Court make? 137 As I have come to the conclusion that his Honour's discretion in rejecting the evidence of the second conversation miscarried, the question arises as to what order the Court should make as a consequence. Section 5F(5) of the Criminal Appeal Act states:

(a) affirm or vacate the judgment or order appealed against, or (b) give or make an interlocutory judgment or order instead of the judgment or order appealed against. 138 The Crown submitted that, if it were successful on the appeal, the Court should vacate the order made by Shaw J and, in its stead, rule that the evidence of the conversation was admissible. The respondent submitted that, if we vacated the order, the Court should return the matter to Shaw J for his Honour to reconsider whether the evidence should be admitted. 139 Although the Court has the power to make the ruling sought by the Crown, I do not believe it is appropriate to exercise it. I am not aware of any case where this Court has made an evidentiary ruling in favour of the Crown upon allowing an appeal under this section. But in any event, there are outstanding findings of facts to be made and, depending upon what facts are found, the exercise of a discretion, either to reject the evidence or to admit it, might arise. It is appropriate that the trial judge consider these matters on the evidence that is then before the court. 140 However, I believe that it would be inappropriate for the matter to be reheard by Shaw J. This is not to be taken as any criticism of his Honour or a lack of confidence in him to reconsider the matter in the light of what this Court says about his earlier exercise of discretion. It is simply a recognition of the practical difficulty of a judge possibly being required to re-exercise afresh discretions of the nature of those involved in the present case and, in effect, having to disregard views that were no doubt genuinely held by him, but were, in my view, erroneously formed. 141 I propose that the order of the Court be that the appeal is allowed and the order made by Shaw J rejecting the evidence of the conversation of 15 May 2001 be vacated. **********

Last Modified: 12/02/2005 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.