R v Swaffield

138. These conclusions notwithstanding, four principal considerations arise in relation to the covert use by police of surveillance tapes. They are that such circumstances involve depriving the suspect of a caution which would otherwise be required of police; of the opportunity to consult a lawyer; of the right to remain silent; and of the general privilege of the suspect against self-incrimination. I will deal with these points in turn.

139. Absence of a caution: The practice of cautioning suspects when interviewed by police is generally regarded as flowing from the Judges' Rules (the rules), formulated in England in 1912 for the guidance of police officers and copied elsewhere throughout the common law world, including in Australia. In England, the rules were modified by the judges on several occasions, before being superseded by Codes of Practice under the Police and Criminal Evidence Act 1984 UK. Whilst the rules have never had the force of law in England, or in this country [179] , they have continued to provide guidance as to the standards of fairness to be observed when a question later arises as to the admissibility of a confessional statement made to police [180] . In Van der Meer [181] , Deane J observed: "Their breach will not automatically mandate exclusion; nor will adherence to them necessarily prevent it." Bearing in mind the general practice to use the rules as a yardstick [182] , and acknowledging their different formulations and applications in the two Australian jurisdictions in question here, the obligations imposed on police officers by the rules may be simply stated. Where a police officer has made up his or her mind to charge a person with a crime, that person should first be cautioned, before any further questions are asked. The caution should alert the accused that anything thereafter said may be recorded and given in evidence at a subsequent trial. It is worth noting that the Uniform Evidence Acts contain [183] provisions in substantially similar terms. Failure to comply with the provisions enlivens the exercise of the public policy discretion to exclude the evidence.

1. Van der Meer v The Queen (1988) 62 ALJR 656 at 669; 82 ALR 10 at 32, per Deane J. 2. Van der Meer v The Queen (1988) 62 ALJR 656 at 661; 82 ALR 10 at 18, per Mason CJ; at 666; 26, per Wilson, Dawson and Toohey JJ; at 669; 32, per Deane J. 3. (1988) 62 ALJR 656 at 669; 82 ALR 10 at 32. 4. Van der Meer (1988) 62 ALJR 656 at 666; 82 ALR 10 at 26. 5. s 139(1); see also s 138(1)(a).

140. Applying this threshold test to covertly recorded confessions is not a simple process. It will often be a matter of great dispute and doubt as to whether the police had made up their minds to charge the accused at the time the critical admission or confession was secured. Secret surveillance, such as covert recordings, will frequently be carried out at a stage in the investigation when police have a strong suspicion about the accused's guilt, but require further evidence before deciding whether to lay charges. However, even if the threshold test is satisfied, failure to caution the accused will not necessarily make the evidence inadmissible [184] . It will simply attract the exercise of a judicial discretion.

141. In the present appeals, it is clear that in neither instance was the accused cautioned. Such caution would have been absurd, being completely inconsistent with the mode of questioning that was undertaken. A first issue is whether the questioning was carried out by a police officer at all, so as to enliven the prima facie obligation to give a caution. In Swaffield , it is plain that Constable Marshall, the undercover operative, was a police officer. In Pavic , the question is a little more difficult. Mr Clancy was not a police officer. But was he an agent of the police? If he was, did the Victorian requirement imposing on police officers the obligation to caution Mr Pavic arise? For the moment I will assume that each of these questions should be answered in the affirmative.

142. The second issue relevant to cautioning is whether the police had reason to believe, at the time of the recorded conversations, that they had sufficient evidence to charge each accused with the offences of which they were later severally charged and convicted. In Mr Pavic's case the position is complicated once again by conflicting evidence. However, the better view is that such a stage had not been reached, otherwise the police would not have allowed Mr Pavic to go free after his second interrogation. In Mr Swaffield's case, it seems clear enough that the police did not have sufficient evidence to charge him with arson when they embarked on the procedure of deception used by Constable Marshall. As much seems to follow from their decision not to offer any evidence at the committal hearing in November 1993, nine months prior to the recorded conversations. True, the police had charged Mr Swaffield before that time. However, the charges had effectively been dropped. Accordingly, in neither case had a point been reached where the requirement to caution descended upon the police before the questioning of each accused was undertaken. Nice questions arise as to whether that point was reached during the recorded conversations so that the caution should then have been given. In view of my conclusions, I shall pass these questions by.

143. Loss of the right to consult a lawyer: The right of an accused to consult a lawyer at a point during police interrogation has long been recognised under Australian law and by Australian police practice [185] . As I am ready to assume that, in the circumstances, the police were not obliged to caution either Mr Pavic or Mr Swaffield, I would also assume that there was no obligation to give either accused the opportunity to have the advice of a lawyer before responding to questions by or for the police. These assumptions may be made to bring me to the remaining, and crucial, considerations.

1. Driscoll v The Queen (1977) 137 CLR 517 at 539-540; Pollard v The Queen (1992) 176 CLR 177 at 235; Foster v The Queen (1993) 67 ALJR 550 at 554; 113 ALR 1 at 7; R v Borsellino [1978] Qd R 507; R v Hart [1979] Qd R 8; R v Watkins (1989) 50 SASR 467; Crimes Act 1914 Cth, ss 23G, 23L (these provisions also apply in the Australian Capital Territory by virtue of the Crimes Act 1914 Cth, s 23A(6)); Crimes Act 1958 Vict, s 464C.

144. Right to remain silent and the privilege against self-incrimination: In certain circumstances, it is desirable to separate these two considerations [186] . However, for the purposes of the present appeals, there is no need to distinguish between them. For the sake of simplicity, I will refer to them compendiously as "the right to silence".

1. See Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 526-527; see also International Covenant on Civil and Political Rights, Art 14.3(g).

145. A useful statement of the scope of this right in Australia appears in Petty v The Queen [187] . There this Court held that [188] :

A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played. 1. (1991) 173 CLR 95. 2. Petty (1991) 173 CLR 95 at 99, per Mason CJ, Deane, Toohey and McHugh JJ.

146. There are many reasons, consistent with innocence, why a person might wish to remain silent when confronted by police investigating a crime [189] . They may be shocked by the accusation or suspicion of their involvement. They may be upset or confused. They may want to protect somebody else or themselves from embarrassing, but not necessarily unlawful, facts. They may lack the ability to articulate a defence or explanation for their actions [190] . They may just be suspicious of police officers and other officials of the State. They may have been so advised by lawyers or others.

1. See the discussion by the UK Royal Commission on Criminal Justice (Cmnd 2263, 1993), Ch 4, par 27 and submissions made in R v Cowan [1995] 3 WLR 818; [1995] 4 All ER 939. 2. R v Williams (1992) 8 WAR 265 at 277.

147. Against these considerations must be weighed the undoubted desirability of bringing wrongdoers to justice. Modern surveillance technology and covert police operations are potentially effective means for achieving that end. In the context of secretly recorded conversations, several issues arise. The first is whether the right to silence extends to conversations with an undercover police operative, where the accused is unaware that he or she is speaking to a police officer. If so, a second issue is whether it extends to a conversation between the accused and a friend or acquaintance, where that person is, unbeknown to the suspect, an agent of, or informant for, the police. In order to answer these questions, it is necessary to consider in a little more detail the essential reasons for the right to silence.

148. Counsel for Mr Pavic submitted that there were three reasons: to maintain a fair balance between the State and the individual [191] ; to ensure that no-one might be compelled to betray himself or herself [192] ; and to safeguard the principle that, in discharging its burden of proof, the Crown cannot oblige the accused to assist it in any way [193] . On this basis, counsel argued, a secretly recorded conversation with an undercover police agent was a breach of the right to silence. Evidence thereby obtained should have been excluded by the trial judge in the exercise of his residual discretion.

1. Miranda v Arizona (1966) 384 US 436 at 460; R v Hebert [1990] 2 SCR 151 at 201; R v Broyles [1991] 3 SCR 595 at 607. 2. Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 526. 3. Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 527.

149. For my part, I do not see the right as being so broadly based. As was pointed out in Environment Protection Authority v Caltex Refining Co Pty Ltd [194] , the privilege against self-incrimination "emerged as a reaction against procedures of the Courts of Star Chamber and High Commission, and in particular their use of the ex officio, or inquisitorial, oath" [195] . Although such procedures no longer exist, the underlying foundation of the rule remains the same. It is, as Brennan J described it in Petty [196] , "to prevent oppression by the police or other authorities of the State".

1. (1993) 178 CLR 477. 2. Caltex Refining (1993) 178 CLR 477 at 526. 3. (1991) 173 CLR 95 at 107.

150. In applying the right to silence to covertly recorded conversations, consideration of United States and Canadian judicial authority is instructive. It must be remembered that, in those countries, the right to silence ordinarily derives, in the case of the United States of America, from the Fifth Amendment privilege against self-incrimination and in Canada, now, from the Canadian Charter of Rights and Freedoms. Additionally, in both countries the right does not usually extend beyond the protection of statements made while the accused is in custody [197] . Bearing these considerations in mind, it is still helpful to review the way that the right has been applied in the context of covert official surveillance by police designed to gather evidence for use against an accused in a criminal prosecution.

1. In the United States of America, see Miranda v Arizona (1966) 384 US 436 at 444; Hoffa v United States (1966) 385 US 293 at 303-304; Illinois v Perkins (1990) 496 US 292 at 296-298. In Canada, see R v Hebert [1990] 2 SCR 151 at 184; R v Unger (1993) 83 CCC (3d) 228 at 249-250.

151. In Illinois v Perkins [198] , the Supreme Court of the United States characterised the right to silence as a matter of preserving the balance between the State and the individual. The Court held that [199] :

The essential ingredients of a "police-dominated atmosphere" and compulsion are not present when an incarcerated person speaks freely to someone whom he believes to be a fellow inmate When a suspect considers himself in the company of cellmates and not officers, the coercive atmosphere is lacking "[W]hen the agent carries neither badge nor gun and wears not "police blue," but the same prison gray" as the suspect, there is no " interplay between police interrogation and police custody." 1. (1990) 496 US 292. 2. Illinois v Perkins (1990) 496 US 292 at 296-297.

152. This statement of the test may not be appropriate for Australian conditions where there is no constitutional foundation for the right. However, the general atmosphere of a conversation must be considered in assessing fairness. It is also important to take into account the way in which the confession was made, and, in particular, whether it can be said to have been elicited by interrogation and questioning directed at procuring a confession.

153. The Canadian authorities do not draw an automatic distinction between confessions to an undercover police officer and those to a friend or acquaintance. In R v Hebert [200] , a majority of the Supreme Court of Canada [201] held that [202] :

[T]he right to silence predicated on the suspect's right to choose freely whether to speak to the police or to remain silent does not affect voluntary statements made to fellow cell mates This would be the case regardless of whether the agent used to subvert the accused's right was a cell mate, acting at the time as a police informant, or an undercover police officer. However, the majority went on to distinguish between [203] : the use of undercover agents to observe the suspect, and the use of undercover agents to actively elicit information in violation of the suspect's choice to remain silent [I]n the absence of eliciting behaviour on the part of the police, there is no violation of the accused's right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police. Citing United States authority, the Canadian judges concluded that [204] : [T]he defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks. 1. [1990] 2 SCR 151. 2. McLachlin J, Dickson CJ, Lamer, La Forest, L'Heureux-Dub?Gonthier and Cory JJ concurring. 3. R v Hebert [1990] 2 SCR 151 at 184. 4. R v Hebert [1990] 2 SCR 151 at 184-185. 5. R v Hebert [1990] 2 SCR 151 at 185, citing Kuhlmann v Wilson (1986) 477 US 436 at 459.

154. This concept of elicitation was further refined by the Supreme Court of Canada in R v Broyles [205] . There, the Court held that the question to be answered was whether, considering all the circumstances of the exchange between the accused and the state agent, there was a causal link between the conduct of the agent and the making of the inculpating statement by the accused [206] . In responding to this question, the Court held that two sets of factors should be taken into account [207] :

The first set of factors concerns the nature of the exchange between the accused and the state agent. Did the state agent actively seek out information such that the exchange could be characterised as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarily have done? The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation.

The second set of factors concerns the nature of the relationship between the state agent and the accused. Did the state agent exploit any special characteristics of the relationship to extract the statement? Was there a relationship of trust between the state agent and the accused? Was the accused obligated or vulnerable to the state agent? Did the state agent manipulate the accused to bring about a mental state in which the accused was more likely to talk?

1. [1991] 3 SCR 595; cf R v Brown [1993] 2 SCR 918 at 927-929. 2. R v Broyles [1991] 3 SCR 595 at 611. 3. R v Broyles [1991] 3 SCR 595 at 611.

155. I agree in the approach expressed by the Supreme Court of Canada. I do not consider that it is derived from the Charter so as to make it inapplicable to analogous circumstances in Australia. The test propounded is consistent with the general approach which our law has taken towards deception by law enforcement officials. Subterfuge, ruses and tricks may be lawfully employed by police, acting in the public interest [208] . There is nothing improper in these tactics where they are lawfully deployed in the endeavour to investigate crime so as to bring the guilty to justice. Nor is there anything wrong in the use of technology, such as telephonic interception and listening devices although this will commonly require statutory authority [209] . Such facilities must be employed by any modern police service. The critical question is not whether the accused has been tricked and secretly recorded. It is not even whether the trick has resulted in self-incrimination, electronically preserved to do great damage to the accused at the trial. It is whether the trick may be thought to involve such unfairness to the accused or otherwise to be so contrary to public policy that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value. In the case of covertly obtained confessions, the line of forbidden conduct will be crossed if the confession may be said to have been elicited by police (or by a person acting as an agent of the police) in unfair derogation of the suspect's right to exercise a free choice to speak or to be silent. Or it will be crossed where police have exploited any special characteristics of the relationship between the suspect and their agent so as to extract a statement which would not otherwise have been made.

1. Ridgeway v The Queen (1995) 184 CLR 19 at 37; R v Christou [1992] QB 979 at 989; cf Rothman v The Queen [1981] 1 SCR 640 at 697. 2. cf Ousley v The Queen (1997) 192 CLR 69 at 134-135.

Having stated what I believe to be the applicable principles, I now consider whether, in either case before the Court, the accused was entitled to have the residual judicial discretion exercised in a way favourable to him so as to exclude his admissions.

The Pavic Case: In Mr Pavic's case, his friend Mr Clancy was, in my view, an agent of the police for the purpose of conducting the conversation which resulted in the recording containing the damaging admissions. The first question, therefore, is whether, considering all the circumstances of the exchange between the two, Mr Pavic's admissions were elicited by Mr Clancy, or merely arose during the course of the conversation. To answer that question there is no alternative but to examine the transcript. Because I differ on this point from my colleagues, I must explain the difference, even at the cost of more detail.

Mr Clancy began the conversation by informing Mr Pavic that he had had a visit from the police:

[Clancy]: Just say mate, I had a visit, fucking 5 hours mate.

[Pavic]: No Lou. When it comes to the crunch, you won't have to fucking worry

[Clancy]: They want, they want, that'd fucking take me down mate.

[Clancy]: Fucking they're saying, they're talking about clothes mate. Fucking clothes. Showing me fucking photographs of my fucking clothes.

[Clancy]: Fucking "no, no". There's fucking blood all over the fucking things mate

[Pavic]: Yeah, don't worry Lou. Because I'm not going to, when, Lou, its going to go down sort of soon, and I'm going to go down big time. I'm not going to fucking drag you into it. And I'll just, I'm going to sort of have to spill my guts I think.

Mr Clancy repeatedly complained that he, who had nothing to do with the crime, was at risk of taking the blame. He went directly to give advice to his friend:

[Clancy]: Go and tell them what happened. Because they fucking, they reckon I'm in on it. That's it mate, they don't believe me.

After complaining that he was unable to sleep, Mr Clancy began questioning the accused directly about whether he had taken a knife to the deceased's home on the occasion that he had previously gone there.

After Mr Pavic admitted that he had killed the deceased, Mr Clancy continued with his questions as to why the accused had done it. He returned to his own fears about the police suspicions directed at him. Mr Clancy referred several times to police questioning concerning a bag of his clothes which he had left in the accused's car. The bag had been found by police concealed in a hollow log close to an access trail near the place where the deceased's body was found. It contained blood-stained towels in addition to the clothes belonging to Mr Clancy. This resulted in the accused begging Mr Clancy not to "spill your guts". Mr Clancy's questioning continued:

[Clancy]: What did you do, dump the body the next day?

Not content with these statements, the friend went on to question Mr Pavic further eliciting the answer: [Pavic]: I'll show them where I fucking got it from. I'll show them exactly everything. I'll just walk through it with them. So Lou, you've got no problems. When it comes to the crunch then, because nothing's going to happen to you Lou. There isn't. Later Mr Clancy went on to ask questions about a vehicle but by this time Mr Pavic was becoming more cautious:

[Clancy]: What's your fucking, with the 4 wheel drive mate, is that just a bloody red herring they're looking for?

[Pavic]: I can't sort of say that much about it Lou, fair dinkum. Because you sort of know heaps already, and I can't sort of say anything else. Because they're going to get it out of you, I can sort of tell.

[Clancy]: Yeah, better off not saying anything mate.

The conversation edged towards its close with a declaration by Mr Clancy that it was "[m]uch better being a kid when life was simple" which produced the somewhat optimistic invitation from his friend: [Pavic]: Come on a holiday with me Lou.

After Mr Pavic departed and before the police arrived to terminate the tape, the record contains a telephone conversation between Mr Clancy and a friend named Ken. Mr Clancy revealed that he was wired for recording and that the police were returning:

[Clancy]: Well they were going to put me in gaol at one stage. Hey? No. No. I don't know whether it was all threats and that, but it was just, I was a victim of bloody circumstances Ken. That's all it was. Yeah, yeah, I had to give them another one. Because I didn't tell them everything with the last one, so. Yeah, well it'll be very shortly I dare say. Because what I was doing tonight was basically trying to prove you know, innocence if you see. Because from where I was standing, I didn't care whether they were bluffing or what they were saying. I wasn't going to the boob for anything I hadn't done.

Although in the foregoing passages of the recorded conversation there are a number of leading questions, plainly designed to get Mr Pavic to implicate himself in specific ways, it is arguable that the proper characterisation of what occurred is that the inculpatory parts of the conversation were not a functional interrogation. It certainly came close to that at several points. But I will assume that it did not infringe the first set of factors expressed in Broyles. I can do this because, in my view, the second set of factors in Broyles is decisive. In particular, the way in which the police, after the privilege of silence had been claimed, exploited the relationship between the two close friends in order to extract the statements from Mr Pavic which they needed.

These were not conversationalists who had the relationship of two prisoners in a common cell. They were not new acquaintances engaging in conversation in a social setting. They were close friends, one of whom had been led to believe that he was a suspect and who was motivated to prove his innocence by obtaining for the police as many inculpatory admissions from the other as repeated expressions of anxiety for his own situation could elicit. The police did not remove the fears of Mr Clancy. They sent him to conduct the recorded conversation, counting on those fears. They relied, in the language of Broyles, on the relationship between the two men. They would have anticipated that Mr Clancy, as their agent, would set out to exploit the special characteristics of his relationship with Mr Pavic so as to secure inculpatory statements from him. They were not disappointed. They relied on the association of trust between the two men. Because of the protested fears of Mr Clancy, they could have expected that Mr Pavic, as a close friend, would feel obligated or vulnerable. They were not disappointed. The line of questioning which Mr Clancy pursued was clearly directed to bring about the situation where Mr Pavic would be more likely to talk. By the tests in Broyles, these tactics crossed the forbidden line. I would apply those tests here.

I would take this course because, when the police arranged for Mr Clancy to act in this way, they knew that Mr Pavic had already exercised his legal entitlement to refuse to answer further police questions. The course adopted was designed effectively to deprive Mr Pavic of that right. Its purpose was to take away his right freely to choose whether to speak or to be silent in response to the serious accusation of complicity in a crime of which he was suspected.

The evidence of the conversation between Mr Pavic and Mr Clancy ought properly to have been excluded under the judicial discretion. This would not mean that Mr Pavic would walk away from responsibility for the homicide. He had offered to plead guilty to manslaughter. But it would mean that the earlier police caution to him and his refusal to answer questions would be respected. His right to require the Crown to prove its case, otherwise than from his admissions, would be safeguarded. His right to speak in awareness that what he said might be used in court would be upheld and not circumvented. The use of a person whom he trusted, and in relation to whose predicament he was vulnerable, would be discouraged. Securing the conviction of Mr Pavic of murder was important. But if such tactics become the common rule, the police caution and the right to speak or to be silent would be undermined and police would be encouraged to use family and close friends to circumvent the current law where that law proved an obstacle. It has been a common feature of totalitarian societies that police and security forces enlist the aid of family and friends to inform on suspects, overriding the legal rights of the accused. It has not until now been a feature of our society.

Mr Pavic's appeal should be allowed. There should be a new trial in which the recorded confession is excluded from the evidence.

The Swaffield Case: I can deal more briefly with Mr Swaffield's case because I agree in the conclusions reached by the other members of the Court. The fact that the conversations were with an undercover police officer is not alone decisive. It is necessary to consider the way in which the conversations proceeded. Having examined the transcripts, I have concluded that Constable Marshall did not speak to the accused as an acquaintance might have done, neutrally or indifferently. Instead, by his questions, he actively sought to elicit critical information - such that the exchange is properly to be characterised as akin to a police interrogation. Such an interrogation by an undercover police officer unfairly derogated from Mr Swaffield's free choice to speak or be silent. The resulting confessional statements ought therefore to have been excluded in the exercise of the residual discretion.

Both statements by the accused were accepted as voluntary. Each was reliable. Each was certainly relevant and otherwise admissible. They were not said to have been illegally or improperly obtained. But they were obtained unfairly in derogation of a fundamental right belonging to the accused in each case. Each accused had exercised that right, as his interrogators well knew. To circumvent the free choice to speak or be silent, which the suspect had exercised in favour of silence, by use of an undercover police officer or a police agent, was not only productive of the risk of an unfair trial to the accused. It was also, in my view, contrary to the public policy which protects the fundamental rights of suspects and holds police, their agents and other investigating officials in check when they are engaged in the questioning of suspects. A conviction of each accused based on such evidence would have been purchased at too high a price.

Legislation might permit police conduct of the kind disclosed in each of these appeals. None has been enacted. If it were, it would presumably introduce pre-conditions of prior independent authorisation. It would lay down checks and limits to defend the kinds of values which have long been protected by the common law. If it derogated from those values it would do so by the authority of Parliament.

In the case of Mr Pavic, I propose the following orders: Appeal allowed; set aside the order of the Court of Appeal of the Supreme Court of Victoria. In lieu thereof, grant leave to appeal to that Court against conviction; allow the appeal; quash the conviction; and order that a new trial be had. In the case of Mr Swaffield, the appeal should be dismissed.