(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.
18 It was common ground that the onus lies on the Crown to establish that the making of the admissions was not influenced by conduct of the kind referred to in the section. The accused's contention is that the conduct of the police was violent or oppressive, or constituted a threat of violence or oppression. The argument focuses upon the circumstances in which the accused made admissions of his involvement. In order to consider this contention it is necessary to resolve the disputed issues of fact concerning what precipitated his confession. The two detectives gave essentially identical accounts to the following effect.
19 Detective Breton was in the process of questioning the accused for the purposes already mentioned: that is, of taking a witness statement, and in preparation for the consideration of the involvement of the accused in a witness protection programme. Over a period of time Detective Breton obtained information from the accused concerning his early life in China and the circumstances in which he came to be resident in Australia. The information the accused provided included reference to a relationship the accused had had with a woman, but which had terminated. This piece of information subsequently acquired an unexpected significance.
20 Shortly after this Detective Goodwin entered the room and spoke to the accused. He stressed the importance of telling the truth in the interview, and of disclosing all details, no matter how small they may have appeared. The accused did not reply but put his head in his hands and rubbed his face. Detective Goodwin asked why he was so nervous and again the accused did not initially reply. He began to cry. Detective Goodwin then said:
"Ye, if there's something you want to say, you can tell us."
21 The accused then said that he had "done these stupid things with Song and Li". Detective Goodwin asked if he meant by that that he had been involved in the murders and the accused replied that he had done "these stupid things". Detective Goodwin then administered a caution and when the accused said he understood, asked how the murders had taken place. The accused then gave a brief account of the events he said had taken place, again saying that the three had done "these stupid things". Detective Goodwin told him that it would be necessary for him to be interviewed further by Detective Breton. Detective Breton told him that the electronic recording device at Ashfield was not functioning, and that he was trying to secure another. A little later, in a conversation recorded in Detective Breton's notebook, the accused explicitly admitted to having committed "this murder", and was again cautioned. He affirmed the brief account earlier given.
22 In answer to a specific question by Detective Breton, the accused said that the men had arrived at the Ashfield home unit at about 2 pm.
23 In the meantime Detective Breton continued his efforts to obtain facilities for electronically recording an interview with the accused, and the necessary equipment arrived at 5.45 pm. Despite this, on the police version, there was no occasion when the accused was left alone with Detective Goodwin.
24 The conversations recounted above were recorded only in Detective Breton's notebook, which has since been lost as the result of a burglary at his home. However, although the circumstances of the loss of the notebook was explored in evidence, there is no dispute that the accused gave the answers and the information attributed to him by both Detectives Goodwin and Breton.
25 The accused gave a different account of these events. It is worth here observing that he gave his evidence in a mixture of English (in which his proficiency is limited) and Mandarin through an interpreter. Extracts from the transcript quoted will not necessarily give an accurate picture of the difficulties encountered in understanding his evidence.
26 The accused's account of the circumstance in which he made his admissions relevantly begins on the morning of Monday 21 July, when Detective Breton picked him up and took him to the police station, with a view to taking his statement. The taking of the statement, in fact commenced the following day. It will be remembered that the accused was to be accommodated in a hotel. He was, on any view of the evidence, being treated as a witness of some importance.
27 The accused claims that during the journey to the police station Detective Breton offered him, in return for his co-operation with police, free food, free accommodation, citizenship, assistance with obtaining employment, and financial reward. He was later taken to a hotel.
28 On the following morning, when the interview was to begin, the accused was taken by Detective Breton from the hotel to the Ashfield Police Station. He saw Sergeant Lai, who told him to "co-operate". He recounted how Detective Breton had begun taking the statement, a procedure which went smoothly, and said that as they finished, Detective Goodwin entered the room and Detective Breton left. He said Detective Goodwin, who was holding a pen in his hand, pointed at him and accused him of being one of three men who had committed the murders, and that he represented that the accused would not be sentenced at all, or would be sentenced leniently, in return for his co-operation in being fitted with the listening device equipment. He said that he felt physically very uncomfortable; that Detective Goodwin pointed the pen at him, and, effectively, gave him a choice of being charged with murder or co-operating with police; that Detective Goodwin then referred to photographs of Mr Zhang and Ms Wang and said that they were nice people who had come to Australia for a better life and had died tragically; that he again offered the accused a choice of being charged with murder or co-operating with police; that he offered the accused witness security, saying "we look after you"; that he pointed the pen again, saying he wanted to hit the accused in the face; and that he threw the pen down near the accused and gave him one final opportunity to co-operate, telling him that once he (Detective Goodwin) had left the room, the accused would have no further opportunity to co-operate. The accused said that he was experiencing stomach pain at this time. He said that after going to the toilet he felt much better, less stressed, but still in a difficult situation. He said that on the one hand he wanted to co-operate with police but that on the other he had little detail of the events in question, and, accordingly, he began to make things up. He said that Detective Breton returned to the room and began asking questions, and writing down his own questions and the accused's answers in his notebook. Before he did so, according to the accused, he said:
"We charge you with murder but we hold your hands up."
29 For reasons that will become apparent, it is necessary here to record that the accused claimed that Detective Goodwin said that he had been in the police force for fifteen years and Detective Breton for twelve years. The accused said that although he signed the record of the conversation in the notebook he had not read it to ensure its accuracy because he trusted Detective Breton. (This seems to have limited materiality since, as noted above, it is not suggested that the written records of the interview are inaccurate or fabricated.) The accused did not deny that he had made the answers and provided the information attributed to him. What he now says is, firstly, that his decision to give the answers was influenced by the oppressive conduct of either or both of the police officers, or the violent conduct of Detective Goodwin and, secondly, that the answers he gave were figments of his imagination.
30 In the voir dire proceedings, neither detective was extensively cross-examined about the accused's allegations. However, during the course of the previous special hearing, a scenario in terms substantially similar to that given by the accused was put to Detective Goodwin in the presence of the jury. He denied the substance of the allegations. The transcript of that hearing is in evidence. It is common ground that issue on these factual matters is joined for the purposes of the present hearing.
31 The first matter to be determined is whether the applicant's version, or that of the police witnesses, (or perhaps some amalgam of the two) of the events immediately preceding his confession should be accepted. Once that factual determination has been made it will be necessary to consider the application of the provisions of s 84.
32 Counsel for the accused submitted that I should accept the accused's version of events. Recognising the difficulty in making a factual determination where two conflicting accounts are before the fact finder, he pointed to certain relatively small, but telling, pieces of evidence tending to support the accused's version. I should here interpolate that the findings of fact I made are in no way dependent upon any assessment of the demeanour of any of the witnesses. It would be unfair, and, indeed impossible, having regard to the accused's unfitness to be tried and language difficulty, to attempt any assessment of his truthfulness by observation of his manner in the witness box. As for Detectives Goodwin and Breton, I saw nothing in the way they gave their evidence that would permit me to accept or reject the accounts they gave. I discard demeanour as a factor relevant to the assessment of the truthfulness of the competing accounts.
33 The first piece of evidence to which counsel pointed concerned the accused's claim that Detective Goodwin had told him that he had been in the Police Force for fifteen years and Detective Breton for twelve. In the special hearing that took place in May Detective Goodwin said that he had joined the Police Force in 1982. In 1997, when these events occurred, he had therefore been in the Police Force for fifteen years, as the accused claimed he had said. There is no other apparent source whereby that information could have come into the possession of the accused. Further, although there was no direct evidence as to how long Detective Breton had, in 1997, been in the Police Force, senior counsel who previously appeared for the accused was able to establish, by reference to his statement, (a rather more convoluted process than was necessary) that Detective Breton is three years younger than Detective Goodwin. It is a not unreasonable inference that he has been in the Police Force approximately three years less than Detective Goodwin. Again, there is no apparent alternative source of this information. In other words, an apparently trivial statement attributed to Detective Goodwin by the accused accords with established facts, and no basis for the accused's knowledge of those facts, other than that Detective Goodwin indeed made the statement, can be identified. All of this tends to suggest that the accused ought be accepted, at least in relation to that part of his evidence in which he claimed that Detective Goodwin had referred to the police experience of the two officers. If the accused is to be accepted in that respect then it is a relatively short step to accept him in relation to the other matters.
34 On the other hand, this was a relatively innocuous statement, and, even though it might be accepted that this was said by Detective Goodwin, it does not establish that the more pertinent allegations made by the accused are made out. It is necessary, therefore, to look for other features of the evidence which may assist in determining where the truth lies. One such matter is the acknowledgment that the two police officers believed that the accused was not, during the period between 14 and 17 July when he was fitted with the listening device equipment, making a real effort to engage Song and Li in inculpatory conversations. Police did not then have access to a translation of what was contained on the tapes. A translation, acquired much later, is capable of allaying their concerns, but this is of no relevance to their then attitude. The fact was that, at that time, the detectives were suspicious of the accused's efforts on their behalf. Further, both officers had a continuing belief, unsurprising in the circumstances, that the accused's offer to assist did not encompass a desire to tell all that he knew, and that in fact he was far more deeply involved in the murders than he had to that point admitted.
35 Further, the account the accused gave of Detective Goodwin telling him that his co-operation would result in a reduced sentence is entirely consistent with the practice of the criminal law, yet no other possible source of knowledge of that practice in the accused has been identified.
36 Another factual matter, also pointing to the accuracy of the accused's account, concerns the unavailability at Ashfield of video recording equipment. Neither Detective Breton nor Detective Goodwin was stationed at Ashfield and could not therefore be expected to be aware of the position there with respect to facilities and equipment. On Detective Breton's account he had embarked upon his interview of the accused for the purpose of taking a written statement, not an interview of a suspected person, and accordingly did not expect or need to make use of that sort of equipment. Detective Breton said that he did not then know that the Ashfield machine was not functioning and he had no reason to know or to assume it. The detailed statements of Detectives Breton and Goodwin made no mention of any occasion upon which Detective Breton left the room leaving Detective Goodwin and the accused alone together, and their evidence was given on the assumption that no such event had occurred. Yet when, (on their version) it became necessary, as a result of the accused's confession, to record an interview electronically, Detective Breton, without apparently leaving the room or making other inquiries, was able to tell the accused that the equipment was faulty and that he was trying to obtain a replacement. In cross-examination he accepted that there was an error in his evidence, because, he said, he did not know until after the accused's confession that the recording equipment was unavailable. That is simply inconsistent with the unbroken sequence of events as recorded in his statement. It is not, however, inconsistent with the accused's account, which was that Detective Breton had left the room and the accused was alone with Detective Goodwin. It is also consistent with an intention on the part of the officers to establish a situation in which the accused would need to be interviewed, not as a witness, but as a suspect, and the interview be electronically recorded.
37 For those reasons, in my view the account given by the accused is more likely to be accurate than and is to be preferred to, that given by the police officer. I have, accordingly, come to the view that the account of events as given by the accused should be substantially accepted. I do not, however, accept that he began to fabricate an account of the event in question. While this impacts on his credibility generally, I have reached the conclusions I have by an analysis of objective or undisputed facts. The circumstance that I do not believe the accused when he says that his account was false does not affect the conclusion about the events preceding the making of the admission.
38 The provisions of s 84 set out the circumstances in which the absence of true voluntariness in admissions will result in the exclusion of evidence of the admissions. The section confers no discretion. Where there has been conduct of the kind described, unless the Crown satisfies the court that the conduct did not influence the admission or the making of the admission, the court is bound to reject the evidence.
39 Having concluded that the facts are substantially as outlined by the accused, the questions which next arise are, in sequence: