R v Weaven

2 On Sunday 14 December 2008, shortly before 1:00 a.m, the deceased, Mary Lou Cook, was stabbed to death at her home in Darling Way, Narre Warren. The premises were subsequently set on fire. Within a few days, the accused, who had had a longstanding relationship with the deceased, was suspected by police of having been involved in her murder.

3 On 18 December 2008, the accused willingly participated in an interview with Sergeant Ronald Iddles of the Homicide Squad. He denied any involvement in the murder. He claimed to have been at his parents' home, some two kilometres from the scene of the crime, at the relevant time. Sergeant Iddles considered that, although the accused was a suspect, there was insufficient evidence to charge him with murder at that stage.

4 The investigation continued for some months. Eventually, in July 2009, the police began a covert operation, using what is colloquially termed a 'scenario' method of investigation. Between July and September 2009, the accused met with undercover police on a number of occasions. Throughout that period, the accused took part in some 17 different 'scenarios', a number of them involving what he was led to believe was criminal activity. His belief was that he was participating in the activities of an organised criminal gang, and that he was being groomed for possible membership of that gang. The accused was paid various amounts of money for his assistance in these 'criminal' activities, and was led to believe that there was opportunity to earn a great deal more.

5 On 18 September 2009, the accused met a man whom he knew as 'Gary' (in fact, an undercover police operative) in a room at Crown Towers Hotel. He believed that Gary was the 'Mr Big' of the organisation. Gary told the accused that he was on the verge of being accepted as a member of the gang, but that there was a problem. Gary said that he understood that the accused was a suspect in relation to Ms Cook's murder, and that he had been informed that the police investigation into that matter was continuing.

6 Gary said that he could 'fix' the problem, but only if the accused told him the entire truth about his involvement in Ms Cook's death. He made it plain to the accused that his membership of the gang was dependent upon his being completely truthful with Gary about that matter.

7 The accused then made a series of incriminating admissions, the details of which I will summarise only briefly. He first implied that Ms Cook had been killed by her elder daughter Kayla, and claimed that his only involvement in her murder had been as an accessory to that crime. Essentially, he implied that he had had something to do with the disposal of the weapon. He said that, although the police were looking for a screwdriver, he thought the weapon was a steak knife with a broken blade, which Kayla had with her at some time in the couple of days following Ms Cook's death.

8 Gary made it plain that he did not believe this account, and urged the accused to be truthful.

9 The accused then gave a second version of what happened on the night in question. This involved an elaborate and obviously spurious story. The accused now said that he had attended Ms Cook's home on the Saturday night, having arranged at an earlier stage to meet a man known as 'Sean' there. Sean was said to be a drug dealer. Sean's purpose in attending that night was to supply Ms Cook with drugs, and to obtain payment in relation to that sale. The accused described himself as the 'middle man' in relation to that transaction.

10 According to this second version, it was Sean who had stabbed Ms Cook. He had used a steak knife. A piece of the blade of the knife that Sean had used had broken off when Sean had 'pushed it in'. The accused now said that after he saw what Sean had done he had panicked, and that he had 'finished it off'. He said that he picked up a screwdriver and stabbed the deceased in the stomach with it. He said that he had then set fire to the mattress upon which the deceased was lying. He told Gary that he had subsequently disposed of the knife (including the broken piece) and the screwdriver. He said the he had buried the knife a foot under the soil, and thrown the screwdriver into a drain overgrown with weeds.

11 The accused said that after he left the deceased's house on the night in question, he went to the home of his friend 'Dave'. He said that Sean was staying with Dave at the time.

12 According to this second version, the accused had, shortly after the murder of the deceased, arranged for Dave to kill Sean. He said that he asked Dave to do this as a favour, and claimed that he had not given Dave any explanation as to why Sean needed to be killed. He said that Dave had taken Sean deer hunting, and had shot him with a 303 rifle. He told Gary that Dave had then put Sean's body through a meat mince and that he had fed the body parts to his dogs.

13 Once again, Gary made it clear that he did not accept this version, describing it as 'fantasy land'. That was hardly surprising. On two occasions, while recounting the story, the accused mistakenly referred to Sean as 'Stewart'.

14 Gary told the accused that if he wanted to join the 'gang', he would have to be completely honest, and stop telling lies. He arranged for the accused to go off and have a discussion with several other members of the 'gang' whom the accused trusted (and who were, in fact, undercover operatives). After a while, the accused returned Gary's room and gave a third version of his actions on the night in question.

15 The third version may be described as the 'scenario confession'. Basically, it consisted of a repetition of the second version, without the introduction of either Sean or Dave (neither of whom, the accused now admitted, had had any involvement in the death of the deceased).

16 The accused now told Gary that on the night of Ms Cook's murder, he had visited her home in order to have a smoke with her. He said that he had walked the two kilometres from his parents' home to her house. He said that after he arrived, a dispute had broken out between them. It arose out of the deceased having failed to pay for drugs that had been supplied to her by a third party, in circumstances where the accused had assured that person that Ms Cook's credit was good. Put simply, the accused told Gary that he had grabbed a steak knife from the kitchen and, for no reason at all, stabbed the deceased in the neck while she was in the lounge room. He told Gary that, in the course of the stabbing, the knife had broken.

17 The accused went on to say that after he had stabbed the deceased, he had panicked. He agreed with Gary's suggestion that the accused had 'just wanted to finish it'. The accused said that he had picked up a screwdriver that had been in the lounge room and stabbed the deceased in the stomach with it. He had then set fire to the mattress on which she lay in order to conceal, as best he could, what he had done.

18 The accused repeated what he had earlier told Gary, namely that he had disposed of the steak knife (including the broken piece) by burying it in the ground (this time, he said it was buried a foot to a foot and a half deep), at a location that he could specifically recall. He said that he had tossed the screwdriver into a drain and that it might be difficult to locate.

19 Gary then questioned the accused in some detail about his movements before and after the killing. The accused told Gary that he had been wearing an orange top on the night in question. He said that he had burnt the shoes and clothing that he had been wearing, save for the orange top. He said that the top had been washed repeatedly since.

20 Gary then arranged for the accused to accompany several other members of the 'gang' to the locations where the accused had said that the knife had been buried, and the screwdriver thrown. The accused did so. However, it was getting dark at that stage, and no search of the area could be carried out. All that occurred was that the locations identified by the accused were marked.

21 Later that evening, the accused was arrested in the vicinity of Crown Towers Hotel, and then formally interviewed. He denied any involvement in Ms Cook's death, and claimed that he had been at his parents' home at the time she was killed. He was then charged with murder.

22 On the following morning, police carried out a thorough search of both locations identified by the accused the previous day. They found a steak knife embedded in the earth, at almost exactly the spot the accused had indicated he had disposed of it. The blade of the knife was intact, but a piece of the handle was missing. It was of some significance that the accused had told Gary, in the course of the second version, that the knife was buried about a foot below the surface, and that similarly in the scenario confession he said that it was buried a foot to a foot and a half below the surface. However, when the knife was found its handle was poking just above the surface.

23 It should be noted, for the sake of completeness, that Dr Michael Burke, the pathologist who carried out the autopsy on the deceased, had given evidence on the voir dire to the effect that there was a disconformity between the dimensions of that knife, some 2.5 cm at its widest point (and 2 cm wide at the point equating to the length of the wound, being 6 cm), and the width of the wound at the apex of the lung, being some 1.4 cm wide. Nonetheless, he said that, in his opinion, and notwithstanding the discrepancy, the knife that was located could have caused the wound. He agreed, however, that it was reasonably possible that the knife had not caused the wound.

24 After the knife had been found, the police conducted a search for the screwdriver. However, that search was unsuccessful.

25 Counsel for the accused sought the exclusion of the various admissions made to Gary at the Crown Towers Hotel, and particularly the 'scenario confession'. He relied upon several provisions of the of the Evidence Act 2008 ('the Act'). In particular, he relied upon s 90 (the unfairness discretion in relation to admissions), s 137 (mandatory exclusion of evidence, in criminal proceedings, whose probative value is outweighed by danger of unfair prejudice), s 135 (discretionary exclusion of evidence whose probative value is substantially outweighed by danger of, inter alia, unfair prejudice), and s 138 (illegally or improperly obtained evidence).

26 Although counsel did not seek to place any reliance upon either s 84 (exclusion of admissions influenced by, inter alia, oppressive conduct) or s 85 (exclusion of admissions made as a result of inducement by person reasonably believed to be capable of influencing decision whether prosecution of accused should be brought or continued), I gave consideration to whether the confessional evidence should be excluded on the basis of these provisions.

27 Section 85 plainly had no application to the facts of this case. Subsection (1) reads as follows:

(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant -

(a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence; or

(b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.

28 The term 'investigating official' is defined, relevantly, in the Dictionary to the Act as follows:

(a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior); or

...

29 Accordingly, s 85(1)(a) could not be invoked. Self-evidently, neither could s 85(1)(b).

30 Section 84 provides as follows:

1. Exclusion of admissions influenced by violence and certain other conduct

(1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by -

(a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person; or

(b) a threat of conduct of that kind.

(2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced.

31 As regards this section, I concluded that the confessional evidence had not been influenced by 'violent, oppressive, inhuman, or degrading conduct', or by any threat of conduct of that kind.

32 In approaching the matter in that way, I had regard to Tofilau v The Queen[1] in which the High Court upheld the admissibility of confessional evidence obtained as a result of the 'scenario' investigative technique. That case, though decided under common law and not pursuant to the Act, makes it difficult to contend that the conduct of the covert operatives in the present case, which was essentially the same as that of the covert operatives in Tofilau, could be stigmatised in the way contemplated by s 84.

33 In Tofilau, it was held that, notwithstanding the inducements offered by the covert operatives to the accused to confess their criminal conduct, the admissions thereby procured were admissible, and had been properly received in evidence. One reason for that conclusion was that a covert operative was not, in any relevant sense, a 'person in authority'. At common law, only an inducement offered by a 'person in authority' would render a confession involuntary. Importantly, however, the High Court went further. It concluded that there was no basis for the exclusion of the confessional evidence in that case in the exercise of the 'unfairness discretion', as formulated in R v Lee. [2]

34 I did not think, in the light of Tofilau,[3] that the conduct of the police in carrying out the scenarios in the present case, as a prelude to Gary's questioning of the accused, could properly be stigmatised as 'oppressive'. Nor did I think that the manner of Gary's questioning could be viewed in that way. Had the High Court taken the view that the use of the scenario method was in any sense 'oppressive', it would presumably have upheld the challenge to the admissibility of the confessional evidence on the basis of the unfairness discretion. The fact that the High Court held that the unfairness discretion could not be invoked in Tofilau was, in my view, a powerful reason for holding that s 84 could not apply to the present case.

35 It was presumably for these reasons that counsel for the accused did not seek to invoke s 84 in this case. He relied instead, as I have indicated, upon ss 90, 137, 135 and 138.

36 However, Tofilau[4] posed problems for counsel's submission regarding s 90 as well. That section is in the following terms:

90 Discretion to exclude admissions

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.

37 It seems that s 90 was intended essentially to replicate something akin to the 'unfairness discretion' discussed in Lee,[5] to which I have already referred. Indeed, it has been said that the section imports the common law 'unfairness discretion' into the Act.[6] It is clearly established that the accused bears the burden of persuasion in relation to the exercise of the Lee discretion, and the same applies in relation to the discretion under s 90.[7]

38 It has been said that 'fairness' is a vague concept, the very nature of which inhibits great precision.[8] It incorporates, but also extends beyond, ensuring that an accused receives a fair trial. One touchstone of the unfairness discretion may be unreliability. There is also potential overlap between ss 90 and 138 (the discretion to exclude evidence obtained illegally or improperly).

39 In this case, the critical question in relation to s 90 seemed to me to be whether, having regard to the circumstances in which the scenario confession came to be made, it would be unfair to the accused to permit the Crown to adduce that evidence. I note that the New South Wales Court of Criminal Appeal, in R v Em,[9] held that the probative value of an admission has no bearing upon the exercise of the 'unfairness discretion' under s 90.[10]

40 Among the matters that I took into account, in determining that it would not be unfair to the accused to admit this evidence, were the following:

• the means used to obtain the scenario confession were not in themselves illegal or improper. The scenarios took essentially the same form as those used in Tofilau,[11] and other 'scenario' cases. This is recognised as an acceptable investigative technique, in appropriate circumstances;

• the mental and emotional state of the accused at the time that he made the admissions was not such as to render it unfair to receive that evidence. The covert visual recording of the discussion between the accused and Gary does not suggest that the accused's will was in anyway overborne. He was told on a number of occasions that he was perfectly free to say nothing, and simply walk away. He chose to answer Gary's questions, initially by telling only part of the story, and then by gradually revealing his own role in the murder of the deceased. While it is true that he had become enmeshed in what he believed to be serious criminality, and had been given powerful incentives to join the 'gang', I saw no signs of mental frailty of a kind that would warrant exclusion of this evidence on the basis that it would be unfair to the accused to receive it; and

• there was nothing in the method of Gary's questioning, or the lead up to that questioning, that cast doubt upon the reliability of the accused's admissions, and in that sense made it unfair for them to be received in evidence. It is true that the accused lied to Gary when he proffered the first and second versions of what had occurred on the night in question. However, it is also important to note that, in each of those versions, he implicated himself to some degree in the killing of the deceased. At no stage did he tell Gary that he had been at home, at his parent's residence, when the deceased was killed. That, of course, was to be the defence proffered to the jury by his counsel throughout the course of the trial.

41 Counsel for the accused submitted that there were a number of elements of the present case that distinguished it from Tofilau.[12] First, the accused had given two palpably false accounts to Gary before he made the scenario confession. That meant, so it was submitted, that the scenario confession had to be viewed as unreliable. Secondly, there was a 'lack of cogent evidence' that the knife found was the murder weapon. Thirdly, there was no objective evidence to support the accused's statement to Gary that he had stabbed the deceased in the stomach with a screwdriver. And finally, there was evidence that the accused was at a 'low ebb' (including that that he had lost his job and was in difficult financial straits) at the time, the implication being that he was under considerable pressure to accept the inducements that were being offered and to become a member of the 'gang'. I concluded that none of these contentions should be accepted, either individually or in combination.

42 The fact that the accused changed his story from one of partial inculpation to one of total inculpation did not suggest to me that the scenario confession was inherently unreliable. There was nothing about that confession that struck me as being improbable. The discrepancies associated with the accused's description of the knife, and how he had disposed of it, were capable of being explained without rejecting, as unreliable, the confession itself. The same can be said of Dr Burke's evidence, even if it allowed for the possibility that the knife that was found had not been used to kill the deceased.

43 If it were necessary to do so, I would have taken into account, in favour of the reliability of the confession, the evidence given by Christine Cook and others regarding the accused having returned Christine's mobile telephone to her in the hours immediately after the deceased's death. I would also have taken into account the fact that there were some matters mentioned in the scenario confession which, arguably, the accused would not have known unless he was involved in the murder. For example, the precise location of the deceased on the mattress might be viewed in that way. So too might the accused's knowledge of the fact that there had been no accelerant used to start the fire.

44 Even without the evidence concerning the mobile phone, and the other matters, I would have considered the scenario confession to be perfectly capable of acceptance by the jury.

45 As regards the financial pressures upon the accused, I did not consider that these rendered his confession unreliable. There was nothing to prevent him from telling Gary that he had no involvement whatsoever in the murder of the deceased, and that

there was therefore nothing for Gary to 'fix'. It was the accused who chose a different path.

46 Finally, the fact that there was no objective evidence of any wounds to the stomach of the deceased was, in my opinion, of no consequence. Dr Burke said that much of the stomach area had been burnt away in the fire. Accordingly, whether any such wounds to the stomach had been inflicted was not something that he could confirm or deny.

47 I note that since Tofilau,[13] scenario confessions have been received in other cases, both in this State and elsewhere. For example, in Lauchlan v State of Western Australia,[14] the Western Australia Court of Appeal considered a trial judge's refusal to exclude an admission made by the accused in the course of an undercover scenario operation (again, involving 'Gary') in respect of a homicide. The covert scenario operation employed by the police in that case was extremely similar to that used in the present case.

48 Other circumstances arising in Lauchlan were also remarkably similar to those in this case. For example, at the time the scenario technique was employed, the accused had not yet been charged, and there was no proper basis to have him charged at that time. It is of some significance to note that the accused in that case had also initially given 'Gary' an allegedly false account of what had happened on the night in question. Then, when 'Gary' had asked him to get 'fair dinkum', he had provided a second account (the relevant admission). In the record of interview following his arrest, the accused had said that he had told the truth in the first account he had given Gary (which was exculpatory in that the accused said that he knew about the murder but was not personally involved in it), and that he had made up the second version. On appeal, the Court upheld the trial judge's refusal, in the exercise of his Honour's discretion, to exclude the admission in the circumstances of that case.

49 In R v Karakas (Ruling No. 1),[15] Lasry J, in light of 'substantial analysis by the Court of Appeal ... and by the High Court of Australia', considered 'settled' the legal principles in respect of the scenario investigative methodology.[16] The question was whether the case before his Honour could be distinguished from those cases where confessional evidence obtained in such a way was not excluded. Lasry J held that, in all of the circumstances of that case, the confessional material was not 'inherently unreliable' (that having been the fundamental basis upon which the exclusion was sought), and the evidence was admitted.

50 Counsel for the accused also sought to invoke the 'right to silence' as a separate basis upon which the discretion under s 90 should be exercised in the accused's favour. In cross-examination of Sergeant Iddles on the voir dire, counsel elicited that one reason why the accused was not interviewed again after 18 December 2008 was because of a concern, on the part of the police, that he might have declined to answer questions. According to Sergeant Iddles, that would have made it difficult, in the light of Swaffield,[17] to use the scenario technique thereafter.

51 The short answer to this latter submission is that this very point was considered and rejected by the High Court in Toffilau.[18] Any analogy with Swaffield is inexact, because that case involved the use of a confederate planted in a cell to elicit admissions once the accused had made it plain that he did not wish to answer questions. That is far-removed from the present case, where the accused had not at any stage indicated an unwillingness to be interviewed.

52 In any event, I did not consider that the choice made by Sergeant Iddles to use the scenario technique, rather than to interview the accused again, in any way rendered it unfair to receive in evidence the confessional statements made to Gary. For these reasons, the application under s 90 was rejected.

53 I turn next to the application made pursuant to s 137. That section is in the following terms:

1. 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.

54 Section 137 mandates the exclusion of evidence if the court concludes that the danger of unfair prejudice[19] outweighs the probative value of the evidence. The section provides for mandatory exclusion, rather than the exercise of a discretion. However, it requires a balancing process to be undertaken, and in that sense may be regarded as 'akin to a discretion'.[20]

55 The term 'probative value' is defined in the Dictionary to the Act as meaning 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'.

56 As with s 90, the onus is on the accused to persuade the court that the danger of unfair prejudice from the evidence outweighs its probative value.[21] In undertaking the balancing exercise, the judge should have regard to whether any warnings or directions that may be given concerning the evidence will remove, or at least reduce, the danger of unfair prejudice.

57 In discussion with counsel regarding the admissibility of the scenario confession, I indicated that, in the event that I permitted that evidence to be led, I would warn the jury as to how they could and could not use that evidence, in accordance with the directions specified by Callaway JA, in Tofilau, when that case was before the Court of Appeal.[22] I concluded that there was no real risk that the jury would misuse the evidence, or give it more weight than it could properly bear.

58 I was conscious of the debate regarding the nature of the balancing process to be undertaken as discussed in the authorities referred to in learned texts.[23] Although I prefer the narrower view favoured by Spigelman CJ in R v Shamouil,[24] whereby issues of reliability and credibility are considered only at the level of whether a jury could accept the truthfulness of the confession (and not whether I myself would do so), it made no difference to my decision to admit this evidence in this case. On either approach, I would have concluded that the probative value of this evidence was not outweighed by any danger of unfair prejudice.[25]

59 I turn next to s 135. That section provides as follows:

135 General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might -

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing; or

(c) cause or result in undue waste of time.

60 Once again, 'probative value' is defined in the Dictionary to the Act. Irrespective of whether one takes the broader view of how to assess 'probative value', or the more restricted view, the evidence of this scenario confession easily passed either test. The evidence will only be excluded if its probative value is substantially outweighed by the danger that it might be unfairly prejudicial.[26] Neither ss 135(b) (misleading or confusing) or 135(c) (time wasting) were relevant in this case.

61 For the reasons already set out in relation to s 137, the danger that the evidence of the scenario confession might be unfairly prejudicial to the accused was, in my opinion, minimal. There was no real risk that the evidence would be misused by the jury in any unfair way.

62 That takes me, finally, to s 138. Section 138 provides as follows:

1. Exclusion of improperly or illegally obtained evidence

(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 -

(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.

63 Section 138 provides that evidence obtained improperly should not be admitted unless the desirability of admitting the evidence outweighs the undesirability of doing so. Evidence of an admission is taken to have been obtained improperly if, inter alia, the person conducting the questioning 'made a false statement in the course of the questioning'.

64 Although not the subject of any specific argument on the part of counsel for the accused, Gary's representation that he was the head of a criminal gang could be regarded as the making of a 'false statement'. However, a deception of that kind seemed unlikely to fall within the description of a 'false statement' of the kind to which s 138 is directed. It would be strange to conclude that an investigative technique of a kind that has received the specific approval of the High Court should be characterised as 'improper' merely because it involves the use of legitimate deception on the part of the police.

65 It could be argued, however, that Gary went further when he told the accused that the police holdings against him were 'reasonably substantial', and implied that he would be charged with murder unless Gary arranged for the matter to be 'fixed'. As previously indicated, Sergeant Iddles readily accepted, when questioned on the voir dire, that the police did not have sufficient evidence to arrest or charge the accused at any stage prior to his confession to Gary.

66 Nonetheless, and even assuming that s 138(2)(b) was triggered by the use of the scenario technique, or by the evidence given by Sergeant Iddles, this Court has a discretion as to whether to admit the confession. The balancing exercise that must be

undertaken pursuant to that section requires the Court to take into account various matters set out in s 138(3).

67 Such matters so designated include the probative value of the evidence, which, in my view, was substantial in this case. They also include the importance of the evidence in this proceeding, which I considered to be great. They include the nature of the relevant offence, murder, being the most serious offence known to the criminal law. They also include the gravity of the impropriety, and whether it was deliberate or reckless. I would say that if there was any impropriety on the part of Gary, it was not grave and should not be viewed as deliberate. The use of the scenario technique was itself entirely legitimate. As regards Gary's alleged overstatement of the strength of the police case against the accused, this was not, in the particular circumstances of this case, of great moment. The position might have been different had Gary, for example, falsely told the accused that there was an eye witness who had seen him leaving the home of the deceased in the early hours of the morning of the murder. A false statement of that kind leading to a confession might, in some circumstances, call for the exclusion of any confession brought about as a result of the statement.

68 As regards the remaining factors set out in s 138(3), Gary's impropriety, if there was any, was not contrary to or inconsistent with any right recognised by the International Covenant on Civil and Political Rights.[27] I also concluded that it was highly unlikely that any proceeding would be taken against Gary in relation to any such impropriety.

69 The last matter that I took into account under s 138(3) was the difficulty, if any, of obtaining the evidence without impropriety. It seemed to me that it would have been difficult to obtain the evidence necessary to charge the accused without making some form of 'false statement' to him. Whether it was necessary to go as far as to suggest that the police had a solid case against him when, in truth, it appeared they did not, is perhaps debateable. However, whatever view might be taken about that matter, I would still have admitted the scenario confession.

70 For the sake of completeness, I note that counsel for the accused raised, in oral submissions on the voir dire, that s 138 might apply to the scenario confession on the basis of the circumvention by the police of the accused's right to silence, in authorising the scenario operation. I dealt with this question in the context of my discussion of s 90. The same principles applied in relation to s 138.

71 For these reasons, I held that the scenario confession was admissible, and could be led in evidence.

[1] [2007] HCA 39; (2007) 231 CLR 396 ('Tofilau').

[2] [1950] HCA 25; (1950) 82 CLR 133 ('Lee').

[3] [2007] HCA 39; (2007) 231 CLR 396.

[4] [2007] HCA 39; (2007) 231 CLR 396.

[5] [1950] HCA 25; (1950) 82 CLR 133.

[6] See R v Suckling [1999] NSWCCA 36; and R v Walker [2000] NSWCCA 130. As to the principles governing the exercise of this discretion at common law see, generally, R v Swaffield; Pavic v The Queen [1998] HCA 1; (1998) 192 CLR 159 ('Swaffield').

[7] EM v The Queen [2007] HCA 46; (2007) 232 CLR 67, 91 [63] (Gleeson CJ and Heydon J).

[8] Swaffield [1998] HCA 1; (1998) 192 CLR 159, 193 [66] (Toohey, Gaudron and Gummow JJ).

[9] [2003] NSWCCA 374.

[10] Ibid [110] (Howie J with whom Ipp JA and Hulme J agreed).

[11] [2007] HCA 39; (2007) 231 CLR 396.

[12] [2007] HCA 39; (2007) 231 CLR 396.

[13] [2007] HCA 39; (2007) 231 CLR 396.

[14] [2008] WASCA 227 ('Lauchlan'). This case was decided under the common law.

[15] [2009] VSC 480. Like Lauchlan, this case was decided under the common law, prior to the Evidence Act 2008.

[17] [1998] HCA 1; (1998) 192 CLR 159.

[18] [2007] HCA 39; (2007) 231 CLR 396.

[19] In Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, 325 [91], McHugh J cited R v BD (1997) 94 A Crim R 131 139 (Hunt CJ at CL), where 'unfair prejudice' was said to mean 'prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way'.

[20] See Jill Anderson, Neil Williams and Louise Clegg, The New Law of Evidence - Annotation and Commentary on the Uniform Evidence Act (2nd ed, 2009) 650, footnote 133 and the cases cited therein.

[21] R v Polkinghorne [1999] NSWSC 704; (1999) 108 A Crim R 189, 197-198 [51].

[22] See R v Tofilau (No 2) [2006] VSCA 40; (2006) 13 VR 28.

[23] Jill Anderson, Neil Williams and Louise Clegg, The New Law of Evidence - Annotation and Commentary on the Uniform Evidence Act (2nd ed, 2009) 652-654.

[24] [2006] NSWCCA 112; (2006) 66 NSWLR 228.

[25] As to the meaning of 'unfair prejudice' see, generally, Jill Anderson, Neil Williams SC and Louise Clegg, The New Law of Evidence - Annotation and Commentary on the Uniform Evidence Act (2nd ed, 2009) 655-657.

[26] Refer to footnotes 19 and 25 of this ruling regarding 'unfair prejudice'.

[27] Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).