29 In order to understand this ground it is necessary to briefly set out some further history of the matter. On 3 April 1989 the appellant was charged with the murder of Jodie Larcombe and remained in custody except whilst an escapee between 19 April and 23 April and after granted bail on 16 May 1990. He had been committed for trial but in October 1990 the Director of Public Prosecutions found no bill. It was after this that the appellant, whilst living in Goulburn, made the admissions to Mr and Mrs Watt, to which we have adverted. In 1992, he was back in prison on unrelated matters and hence came to associate with the fellow inmate, Bob Collins, whose evidence as to conversation with the appellant has been already discussed. On 2 June 1994 the appellant was rearrested on the charge of murdering Ms Larcombe and, whilst in custody at Long Bay Gaol, allegedly made admissions to one Satirios Christofis, a former prison officer with convictions for drug dealing and dishonesty, who was also a prisoner. It appeared that on 24 August 1994, Mr Christofis informed the police of these alleged admissions by the appellant in an interview with Detective Sergeant Lennon at Long Bay. That interview was instigated by Christofis, who was then on remand and shortly after dealt with for an offence of demanding money ($2,000) by menaces, to which charge he pleaded guilty and in respect of which sentence was deferred. In addition to other admissions more directly connected to the crime,(including that he was depressed by the case and might plead guilty to get it over and done with), Christofis alleged that the appellant complained about Bob Collins agreeing to be fitted with a listening device and, accordingly, allowing his conversations with Collins about Jodie Larcombe to be recorded and that he had concocted an explanation for what he had told Collins. Objection was taken to Christofis' evidence essentially, upon the ground, that although strictly admissible, it should be excluded under s 137 of the Evidence Act 1995, because its probative value was outweighed by the danger of unfair prejudice to the appellant.
30 It appears that on his arrest, the appellant declined to be interviewed. When he had been arrested in 1989 he had also declined to be interviewed.
31 This ground of appeal arises, in part, from R v Swaffield; Pavic v R (1997-98) 151 ALR 98. In the former case, Swaffield had been charged with a number of offences and had declined to be formally interviewed by police in respect of them. On the date set for hearing of a committal proceedings, the police offered no evidence against him and he was discharged. During a subsequent undercover operation, of which he was one of the targets, he spoke to an undercover police officer about the facts forming the foundation for one of the charges in respect of which the police had offered no evidence and made admissions. As a result of these admissions, fresh charges were laid and the prosecution relied on them for the purpose of securing his conviction. Objection had been taken to the evidence on the ground that the Judges' Rules had been disregarded, the undercover police officer, naturally, not having first cautioned the suspect. In Pavic's case, he was interviewed by police in connection with the suspected murder of one Andrew Astbury. Following his being cautioned in conventional terms, he maintained his right not to answer any questions and he was released from custody although police informed him that they nevertheless believed that he had murdered Astbury. Shortly after releasing Pavic, police obtained a statement from a Lewis Clancy, who was a close friend of his. Police believed that they now had sufficient evidence to charge Pavic with murder but suggested to Clancy that he, on behalf of the police, should speak with Pavic and for that purpose carry a recording device. Clancy agreed to the proposal and spoke to Pavic, who made admissions of his involvement in Astbury's murder. These conversations were adduced, over objection, by the prosecution at Pavic's trial.
32 Although the Court was divided as to the disposition of the appeal in Pavic, (Kirby J dissented) it seems that the whole Court accepted that the appropriate approach was "to think of inadmissibility as turning first on the question of voluntariness, next on exclusion based on considerations of reliability and finally on an overall discretion which might take account of all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards" (see 151 ALR at 121 per Toohey, Gaudron and Gummow JJ, Brennan CJ at 122, Kirby J at 137).
33 Toohey, Gaudron and Gummow JJ were of the view that the privilege against self-incrimination should be considered by looking "to the accused's freedom to chose to speak to the police and the extent to which that freedom has been impugned" (151 ALR 98 at 127). Their Honours go on to say -
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 mode 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.
34 Their Honours accepted that nothing which the undercover police officer did in relation to his conversation with Swaffield could have been said to be illegal. However, there was the broader question of whether what he did was in violation of Swaffield's right to chose whether or not to speak to the police, to which must be added the question whether there had been a breach of the Judges' Rules, Rule 2 of which requires a police officer who had made up his mind to charge a person with any crime to first caution that person before asking him any questions. In the circumstances, it was found that a police officer had made up his mind to charge Swaffield, he having been charged well before the conversation with the undercover police officer. No caution was administered by the latter officer before the conversation. However, that fact alone did not dictate exclusion of the conversation. Their Honours concluded that the appropriate test should be applied "by reference to Swaffield's right to chose whether or not to speak to the police", and noted, with apparent approval, the approach of the Canadian Supreme Court, which "regards the use of a subterfuge to obtain a statement as likely to be in violation of a choice whether or not to speak but even then would treat a quite unelicited admission as not calling for the exercise of the discretion to exclude" (151 ALR at 128).
35 It was therefore concluded that, in the circumstances of Swaffield's case, "the admissions were elicited by an undercover police officer, in clear breach of Swaffield's right to chose whether or not to speak" and, accordingly, that the conversation was inadmissible (151 ALR 128).
36 Kirby J found that whilst the fact that the conversations were with an undercover police officer was not itself decisive, he "did not speak to the accused as an acquaintance might have done, neutrally or indifferently...[but instead] he actively sought to elicit critical information - such that the exchange is properly to be characterised as akin to police interrogation" and, therefore, there was an unfair derogation from Swaffield's free choice to speak or be silent. His Honour considered that the resulting confessional statements should have been excluded in the exercise of the Court's residual discretion. Brennan CJ stated the arguments both for and against admission at some length but concluded that much could be said for either view and, because the decision in the Court of Appeal had not been demonstrated to proceed on an erroneous principle or to be otherwise manifestly wrong, he would dismiss the appeal.
37 In Pavic's case, the majority of the Court (Kirby J dissenting) considered that there was no sufficient reason to interfere with the trial Judge's refusal to exclude the evidence. The Chief Justice said (151 ALR at 144) -
In Pavic's case, the confessional statements were made to Clancy whom Pavic knew as a friend. Clancy was not a police officer or other person in authority over Pavic. There was no impropriety in the police obtaining Clancy's consent to the recording by Clancy of his intended conversation with Pavic. A serious crime had been committed and the means adopted for its solution and for the security of evidence against the prime suspect were quite legitimate. The investigation of crime is not a game governed by a sportsman's code of fair play (Bunning v Cross (1979) 141 CLR 54 at 75; 19 ALR 651 per Stephen and Aickin JJ). Fairness to those suspected of crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation or the giving of a sufficient opportunity "to invent plausible falsehoods" (R v Lee 1950 83 CLR 133 at 152).
The fact that Clancy was regarded as trustworthy by Pavic is an indicator of the reliability of the admissions made to Clancy. There was no public interest to be served by rejecting those admissions.
38 Toohey, Gaudron and Gummow JJ noted (151 ALR at 128-9) that, as in the case of Swaffield, there was no illegality; it was not suggested in Pavic's case that the Judges' Rules were applicable, although no caution was administered by Clancy, this was hardly surprising; Clancy "must be regarded as an agent of the State" but, on the other hand, the "meeting was not directly set up by the police, Clancy however speaking with Pavic at the request of the police who equipped him with a recording device". Applying the test posited in R v Broyles [1991] 3 SCR 595, their Honours considered that the next question was "whether the admissions by Pavic were elicited by Clancy or were made in the course of a conversation", that is to say, "was there an interrogation by Clancy?" Pavic's argument, that he was mislead by Clancy into making the admissions by Clancy's expressed (but false) fear that he might be wrongly charged with the offence was noted but it was accepted that the trial Judge approached the exercise of his discretion upon the basis that the admission could not "be said to be the result of, or inextricably linked to" it. Accordingly, their Honours considered that, in all the circumstances, there was not sufficient reason to interfere with the trial Judge's admission of the conversation into evidence.
39 Here, the initial contact with the police was instigated by Collins, not the police. In relation to Christofis, the police were informed of statements made by the appellant to Christofis when they were in gaol together. Christofis was not acting on the part of the police when the conversations occurred. Applying the general test enunciated in Swaffield as we have set it out above, should the Court consider that "having regard to the mode by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards?" As we see it, the significant factors to be borne in mind in this case are the following: firstly, there was a considerable body of evidence comprising both objective material and statements by the appellant to a number of persons, including Collins, which pointed strongly to his responsibility for or, at least, involvement in, the death of Jodie Larcombe; secondly, he had already made confessional statements to Collins, in circumstances where they must be attended with a high degree of scepticism, but which, at least, indicated the real likelihood that he might voluntarily disclose further relevant facts; thirdly, the conversations with Collins, considered as a whole, do not smack of interrogation; although there was a deception, it was not such as to place any pressure on the appellant to confess his involvement, if any, with the death of Jodie Larcombe; fourthly, the means adopted were not motivated by a desire on the part of the police to avoid the Judges' Rules which, at all events, do not have the same status in New South Wales as they are apparently accorded in Queensland (Swaffield 151 ALR at 158); and fifthly, the police were investigating an extremely serious crime.
40 We are of the view that to admit the recorded conversations upon the ground that they derogated from the appellant's right to silence or privilege from self-incrimination would, in all the circumstances of this case, be very far from seriously offending prevailing community standards. In saying this, however, we wish to point out that the reference by the High Court, as by this Court, to community standards in this respect is not to any notion of populist public opinion. Rather, this refers to community standards concerning the maintenance of the rule of law in a liberal democracy, the elements of the proper administration of justice and the due requirements of law enforcement.
41 We do not see that admitting the evidence is unfair to the appellant. There was no unlawful or improper conduct on the part of law enforcement officers (see Cleland (1982) 151 CLR 1 at 18). Nor do we see that any real question of unreliability arises, to the extent that it is a significant factor tending to exclusion, although the conclusion that what was said on the tape recorded conversations is true, is very much a matter of judgment: (Cleland (1982) 151 CLR 1 per Dawson J at 36). We do not consider that here there were principles "governing the interrogation of suspects" which mitigated against the propriety of the approach taken in this case so that it is necessary to consider whether the statements "would not have been made or not have been made in the form in which they were made" (see Van der Meer (1988) 82 ALR 10, per Mason CJ at 20).
42 It was also submitted on behalf of the appellant that the prejudicial effect of the evidence might have exceeded its probative value and it should have been excluded on this basis.
43 In BD (1994) A Crim R 131, which concerned the use of a complaint in a sexual case, Hunt CJ at CL said (at 139):
The phrase 'unfairly prejudicial' or the cognate phrase 'unfair prejudice' is also used in ss 135 and 137, and the meaning to be given to each of those phrases must logically be the same in each section - whether or not a weighing exercise is contemplated. The prejudice to which each of the sections refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way.
44 In Harriman v The Queen (1988-89) 167 CLR 590 Dawson J (at 598) referred with approval to the opinion of Lord Herschell LC in Makin v Attorney-General (NSW) [1894] AC 57 (at 65) where two propositions were set out. Dawson J said -
On the other hand, if the categories which Lord Herschell mentions are merely illustrative of the way in which propensity evidence can display such a high degree of relevance that its probative value outweighs its prejudicial effect, then the passage is consistent with the view that propensity evidence is not irrelevant as such, but is excluded for reasons of policy unless it has sufficient probative force. …
The forbidden or inadmissible chain of reasoning to which Lord Hailsham refers (in R v Boardman [1975] AC 421) is that which involves attributing relevance to propensity evidence as such, so as to draw an inference from the accused's disposition as to the likelihood of his having committed the crime in question. The requirement that there should be some other relevant probative purpose is a requirement that to be admissible the evidence should fit within some category of relevance independent of propensity.
45 If, therefore, it can be shown that the evidence intended to be relied upon could have been accepted by the jury as admissions, quite clearly it was relevant regardless of whether it was suggestive of propensity evidence. The trial Judge directed the jury (SU-57) -
Finally, you are not entitled to use the evidence of conversations as the basis of what might be called a propensity argument. It might be that you think that in the conversations the accused and Bob Collins discuss a scheme to abduct a young woman, Amelia Pasic, and that the scheme seems similar in some respects to what the Crown says the accused did in relation to Jodie Larcombe. However, you are not entitled to reason as follows: the accused is the sort of person who abducts, sexually molests and kills young women and that makes it more likely that he did what the Crown alleges that he did in relation to Jodie Larcombe.
46 His Honour went on to set out a number of reasons why the evidence could not be used in that fashion (SU-58).
47 In Pfennig v The Queen (1994-95) 182 CLR 461, Mason CJ, Deane and Dawson JJ said (at 480) -
...it was accepted that propensity evidence is not admissible if it shows only that the accused has a propensity or disposition to commit a crime or that he or she was the sort of person likely to commit the crime charged. But it was accepted that it is admissible if it is relevant in some other way, that is, if it tends to show that the accused is guilty of the offence charged for some reason other than that he or she has committed crimes in the past or has a criminal disposition. It was also accepted that, in order to be admissible, propensity evidence must possess 'a strong degree of probative force' or the probative force of the evidence must clearly transcend the prejudicial effect of mere criminality or propensity.
48 In our view, the evidence was relevant quite apart from the unpleasant propensity (to say the least) that it demonstrated of the appellant. It is unquestionable that the evidence of the conversations had substantial probative value. His Honour correctly applied the law in exercising his discretion to admit or reject the evidence. It was open to the jury to accept that the appellant was admitting to the killing of Jodie Larcombe. It is particularly relevant having regard to the appellant's denial that he had anything whatsoever to do with her death.
49 Of course, a distinction must be made between the problems arising from the admissibility of the initial conversations between Collins and the appellant, which were not recorded, and those which were. It is clear that the latter were not, and could not seriously be suggested to have been, fabricated. In respect of the unrecorded admissions, however, the risk of fabrication was real. Even so, when one considers the evidence as a whole, the material in the recorded conversations very strongly supports the accuracy and reliability of the alleged unrecorded conversations. This adds further justification for admitting these conversations. His Honour correctly weighed their probative worth, having regard to the risk of fabrication, with the risk of unfair prejudice and, in our view, rightly admitted them into evidence.
50 Having regard to these considerations, we do not think that the Collins' material should have been excluded pursuant to s 90 or s 138 of the Evidence Act 1995.
51 The Christofis' material is somewhat different in character to the Collins' material. The circumstances in which the conversations allegedly occurred, together with Christofis' character, created a question mark about their reliability. Since Christofis did not have any conversations with the appellant at the instance or, indeed, with the knowledge of the police the issue of the appellant's right to silence does not arise. Christofis was, however, plainly an unreliable witness. We consider, however, that it was appropriate to place this material before the jury, together with the rest of the evidence, for their evaluation.
52 It had been submitted by counsel for the appellant to his Honour the learned trial Judge that the knowledge of the appellant's case apparently displayed by Christofis, could have been obtained by watching a television programme about the case and by his having access to the appellant's papers which were in the cell that they shared. Christofis conceded that some of the details concerning mutilation of the body came from the appellant's reading of a document referring to his conversation with Collins. However, taking this conversation together with the others in the case, the jury were entitled, in our view, to consider that the appellant had, in effect, adopted what he had told Collins as true and was attempting to invent an explanation. We consider that his Honour's approach of admitting the evidence but giving appropriate warnings to the jury about how they should approach it in determining its weight was the appropriate course. His Honour, who read on the voir dire the opening pages of the transcript of the interview with Christofis taken by the police, said "that the witness displays the sort of familiarity with the accused's case which could more readily explained from hearing the accused talk at length about the case than from watching some television programme or reading some documents". His Honour concluded that the probative value of the evidence outweighed the danger of any unfair prejudice to the accused. We consider that this opinion was correct.
53 No complaint is made about his Honour's directions to the jury as to the way in which they should approach this evidence either in respect of the Collins' or the Christofis' material.
54 Accordingly, this ground must fail.
Ground 2: The trial Judge failed to adequately direct the jury in respect of the issue of circumstantial evidence as it was relevant to either the issue of whether there was jurisdiction available for the giving of a general verdict and as it was relevant to the issue of guilt on the charge of murder.