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[2020] ACTCA 11
General information, not legal advice.
Court of Appeal (ACT)
2020-02-28
Burns, Elkaim and Loukas-Karlsson JJ
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Authorised Report: 15 ACTLR 64
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Sidaros v The Queen
Citation: [2020] ACTCA 11
Hearing Date: 4 November 2019
Decision Date: 4 November 2019
Reasons Date: 28 February 2020
Before: Burns, Elkaim and Loukas-Karlsson JJ
Decision: See [84]
Catchwords: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Application for leave to appeal from interlocutory judgment – whether Court of Appeal is competent to hear appeal on the ruling on the admissibility of evidence – whether principles relating to s 5F of Criminal Appeal Act 1912 (NSW) are applicable CRIMINAL LAW – EVIDENCE – Admissibility – evidence obtained by undercover police operation – where appellant had declined to participate in a police interview – whether the use of the evidence obtained was at a price which is unacceptable having regard to prevailing community standards CRIMINAL LAW – EVIDENCE – Admissibility – expert evidence of a firearms and tool mark examiner – opinion given that cartridges were discharged from a weapon located at the residence of the appellant – whether opinion was admissible under s 79 of the Evidence Act 2011 (ACT)
Legislation Cited: Court Procedures Act 2004 (ACT) s 76 Crimes Act 1914 (Cth) ss 23A, 23B, 23F Criminal Appeal Act 1912 (NSW) s 5F Criminal Procedure Act 1986 (NSW) s 103A Evidence Act 2011 (ACT) ss 79, 90, 138, 139, 192A Supreme Court Act 1933 (ACT) s 37E Cases Cited: Aon Risk Services Australia Limited v Australian National University [2010] ACTCA 28; 244 FLR 440 BC v R [2019] NSWCCA 111 DAO v R [2011] NSWCCA 63; 81 NSWLR 568 Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293 Em v R [2006] NSWCCA 336 Hart v Federal Commissioner for Taxation (No 2) [2016] FCA 897 Honeysett v The Queen [2014] HCA 29; 253 CLR 122 House v The King (1936) 55 CLR 499 Kadir v The Queen; Grech v The Queen [2020] HCA 1 Lawrance v The Commonwealth [2007] FCA 1524 Lee v The Queen [2014] HCA 20; 253 CLR 455 Miles v The Queen [2013] ACTCA 52 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 92 ALJR 713 Pavitt v The Queen [2007] NSWCCA 88; 169 A Crim R 452 R v Bauer [2018] HCA 40; 92 ALJR 846 R v Cornell [2015] NSWCCA 258 R v Eastman (No 23) [2017] ACTSC 281 R v Featherstone; R v Bloxsome (No 2) [2019] ACTSC 90 R v Sidaros [2019] ACTSC 177 R v Suckling [1999] NSWCCA 36 R v Swaffield [1998] HCA 1; 192 CLR 159 The Queen v King [2013] ACTCA 23 Tofilau v The Queen [2007] HCA 39; 231 CLR 396 Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370 X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 Texts Cited: Andrew Palmer, ‘Applying Swaffield: covertly obtained statements and the public policy discretion’ (2004) 28 Criminal Law Journal 217 Parties: Axel Sidaros (Applicant) The Queen (Respondent)
Representation: Counsel S Odgers SC with S Pararajasingham (Applicant) A Williamson (Respondent)
Solicitors Kamy Saeedi (Applicant) ACT Director of Public Prosecutions (Respondent)
File Number: ACTCA 35 of 2019
Decision under appeal: Court/Tribunal: Supreme Court of the ACT Before: Mossop J Date of Decision: 7 August 2019 Case Title: R v Sidaros Citation: [2019] ACTSC 177 Court File Numbers: SCC 312 of 2018, SCC 313 of 2018 1.
The Court
Introduction
(a) Leave to appeal is granted.
(b) Leave to rely on the draft notice of appeal filed with the application for leave to appeal on 14 August 2019.
(c) The appeal is allowed.
(d) Orders 1 and 2 made by Mossop J on 16 August 2019 are set aside.
(e) The evidence obtained from or in consequence of the undercover operations conducted by undercover operatives UCO 67469834 and UCO 23847098 on 1 and 2 September 2018 is not to be admitted into evidence at the applicant’s trial.
(f) The opinion of Mr Clive Roberts that “both the exhibit and test fired cartridge cases were fired in the same firearm” is not to be admitted into evidence in the applicant’s trial.
The Court indicated at that time that reasons would be published at a later date. The reasons follow.
Axel Sidaros (the applicant) was charged with a number of offences, including attempted murder, arising out of an incident on 28 June 2018 where four persons entered a residential property and acts of arson were committed and firearms discharged.
The applicant filed an application for leave to appeal from the interlocutory judgment of Mossop J (the primary judge) on 7 August 2019: R v Sidaros [2019] ACTSC 177 (the Interlocutory Judgment).
Relevantly, the primary judge held that:
(a) evidence obtained from an undercover operation carried out in September 2018; and
(b) the opinion of Mr Clive Roberts, forensic arms examiner with the Australian Federal Police, that cartridges found at the scene of the incident on 28 June 2018 were fired from the weapon seized by the police on 26 July 2018
were both admissible in the applicant’s upcoming trial. The applicant sought to have this evidence excluded.
Grounds of appeal
(a) “Ground 2”: (i) His Honour erred in conflating the question of whether the method of investigation was “proportionate” to the seriousness of the crime in the circumstances where the applicant was “unlikely to be cooperative” with the question of whether the use of the evidence so obtained against the applicant would breach the fundamental common law accusatorial principle;
(ii) His Honour erred in failing to find that the evidence was elicited by undercover police officers in clear breach of the applicant’s right to choose whether or not to speak;
(iii) His Honour erred in relying on s 139 Evidence Act 2011 (ACT) (Evidence Act) to support the conclusion that admission of the evidence would not be at a price that is unacceptable having regard to prevailing community standards.
(iv) His Honour erred in failing to hold that admission of the evidence would be at a price that is unacceptable having regard to prevailing community standards
(b) “Ground 4”:
(i) His Honour erred in failing to hold that the failure of Mr Roberts to disclose identifiable objective criteria on which the opinion of identification was based meant that it had not been established that the opinion was wholly or substantially based on the expert’s specialised knowledge;
(ii) His Honour erred in holding that the opinion of identification was wholly or substantially based on Mr Roberts’ specialised knowledge given that he did not identify an objective basis on which it could be concluded that there was “sufficient” agreement between the parties;
(iii) His Honour erred in failing to hold that Mr Roberts’ opinion of identification was based on the subjective impressions of what he saw when he looked at the images of tool marks and not on specialised knowledge.
Competency of the appeal
Respondent’s submissions
The respondent raised a threshold issue as to whether or not the Court is competent to hear this appeal.
Section 37E of the Supreme Court Act 1933 (ACT) (Supreme Court Act) provides as follows:
37E Appellate jurisdiction (1) When exercising its appellate jurisdiction under this part, the court is to be known as the Court of Appeal. (2) The following matters may be brought before, and heard by, the Court of Appeal: (a) appeals in relation to orders of the court (except orders of the registrar, the Full Court exercising appellate jurisdiction or the Court of Appeal itself); (b) appeals under section 37S (Reference appeal in relation to proceeding); (c) cases stated or questions reserved by the court about any matter in relation to which an appeal may be brought to the Court of Appeal; (d) applications under part 8AA (Acquittals). (3) However, an appeal may not be brought against an order made by the court sitting as the Court of Disputed Elections under the Electoral Act 1992, section 252. (4) Also, an appeal may be brought against an interlocutory order of the court constituted by a single judge, or the associate judge, only with leave of the Court of Appeal. (5) In this section: registrar includes a deputy registrar.
… "order" includes a judgment, decree, direction or decision. …
76 Supreme Court jurisdiction to make orders for conduct of indictable trials … (2) Any orders, rulings or directions that may be made by the Supreme Court for the purposes of a trial for an indictable offence may be made before— (a) if the tribunal of fact for the trial is a jury—the jury is empanelled; or (b) if the tribunal of fact for the trial is a judge alone—the judge starts hearing evidence to determine the guilt or innocence of the accused person. (3) An order, ruling or direction of the Supreme Court under subsection (2) is binding on the trial judge at the hearing of the trial unless in the opinion of the trial judge it is not in the interests of justice for the order, ruling or direction to remain binding. (4) Subject to this Act, the point in a criminal proceeding on indictment against an accused person when an order, ruling or direction under subsection (2) is made is taken to be part of the trial of the accused person.
The application before the primary judge was made pursuant to s 192A of the Evidence Act. The respondent accepted that the jurisdiction for this Court to hear the matter depended on whether the orders of the primary judge were orders for the purposes of s 37E(4) of the Supreme Court Act.
It was submitted that the clear weight of authority from New South Wales is that rulings on the admissibility of evidence are not susceptible to appeal under s 5F of the Criminal Appeal Act 1912 (NSW), which covers appeals against interlocutory judgments or orders.
That provision provides as follows:
5F Appeal against interlocutory judgment or order … (2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies. (3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings: (a) if the Court of Criminal Appeal gives leave to appeal, or (b) if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal. (3AA) A person who is not a party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against a decision in those proceedings to grant leave under Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986 or a determination in those proceedings that a document or evidence does not contain a protected confidence within the meaning of that Division, if the person is: (a) a person who, because of the leave, is required to produce a document or adduce evidence that contains a protected confidence, or (b) a protected confider in relation to a protected confidence that may be produced or adduced because of the leave, or (c) a person who claims the document or evidence does, despite the determination, contain a protected confidence in relation to which the person is a protected confider. … (3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution’s case. … (5) The Court of Criminal Appeal: (a) may affirm or vacate the judgment, order, decision or ruling appealed against, and (b) if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against. … (7) A person may not appeal to the Court of Criminal Appeal under this section against an interlocutory judgment or order if the person has instituted an appeal against the interlocutory judgment or order to the Supreme Court under Part 5 of the Crimes (Appeal and Review) Act 2001.
The respondent submitted that the consistent approach in that jurisdiction is that rulings on admissibility are not considered to be ‘judgments’ or ‘orders’ for the purposes of that section as they lack sufficient finality and can be changed in the course of the proceedings: see for example DAO v R [2011] NSWCCA 63; 81 NSWLR 568. It was noted that s 5F(5) expressly refers to a ‘decision’ and thus clearly contemplates that an order includes a decision (T 4.30).
The respondent also referred to cases from this jurisdiction where there was said to be at least obiter support for this position: see for example The Queen v King [2013] ACTCA 23 at [23] and Miles v The Queen [2013] ACTCA 52 at [7]-[9].
The respondent noted the ACT legislation was different to that of NSW by reference to s 76 of the Court Procedures Act. However, with respect to s 76(3) in particular, it was submitted that this section provides for a prima facie position that the order, ruling or direction will be binding upon the trial judge, and the ruling nevertheless lacks finality as it can be subsequently altered: Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370 at [24], R v Eastman (No 23) [2017] ACTSC 281 at [11]-[15]; R v Featherstone; R v Bloxsome (No 2) [2019] ACTSC 90. Accordingly, it was submitted s 76(3) does not meaningfully differentiate the position in the ACT and NSW.
In oral submissions, the respondent further sought to rely upon Aon Risk Services Australia Limited v Australian National University [2010] ACTCA 28; 244 FLR 440 (Aon), particularly at [57]-[73], regarding a decision not to rule on a piece of evidence. At [73] of that decision the Court noted the ruling lacked the necessary quality of finality to be an interlocutory order within the meaning of s 37E(4). However, it was accepted by the respondent that that decision did not expressly address the “nuanced” differences between the NSW and ACT provisions (T 5.39). The respondent also referred to Lawrance v The Commonwealth [2007] FCA 1524 but accepted this related to a different statutory regime (T 5.16).
Applicant’s submissions
The applicant submitted that the relevant provision conferring jurisdiction in the Supreme Court Act is s 37E(2)(a), not s 37E(4). The former provision confers jurisdiction to hear and determine an appeal “in relation to orders of the court” and an interlocutory order made by a court is an “order of the court”. It was submitted s 37E(4) alternatively provides that an appeal (within jurisdiction) in respect of “an interlocutory order of the court constituted by a single judge, or the associate judge” is not an appeal as of right, but requires leave to appeal. It was submitted this could be contrasted with s 5F(3) which, it was submitted, does confer jurisdiction.
Moreover, it was submitted that by contrast to NSW where there is no definition of the term “interlocutory judgment or order”, the term “order” in s 37E(2)(a) is defined inclusively to cover a judgment, decree, direction or decision. The inclusion of the word “decision” was submitted to be a substantive difference from NSW. The applicant also referred to the position in Victoria where that word is also included and where it is accepted that rulings on the admissibility of evidence may be the subject of an interlocutory appeal to the Court of Appeal. In response to the respondent’s submission regarding the inclusion of “decision” in s 5F(5), it was submitted this should be seen as a reference to s 5F(3A) (T 6.40).
The applicant highlighted the effect of s 76(3) as an additional difference from NSW, where a ruling under s 192A is binding on the trial judge “unless in the opinion of the trial judge it is not in the interests of justice for the order, ruling or direction to remain binding”. This is to be contrasted with the operation of s 103A of the Criminal Procedure Act 1986 (NSW): see for example R v Cornell [2015] NSWCCA 258 at [108].
With respect to the respondent’s reliance on Aon, the applicant noted that decision related to a decision not to rule, rather than a ruling under s 192A (T 7.4).
Accordingly, it was submitted the formal Orders 1 and 2 made by the primary judge are both an “order” for the purposes of s 37E(2)(a). Consideration
The respondent accepted that the starting point must be the definition of the term “order” and accepted NSW has no such definition (T 3.45-4.1). Section 37E(2)(a) confers jurisdiction to hear and determine an appeal “in relation to the orders of the court”. An interlocutory order made by a court is “an order of the court”. “Order” is defined in the Dictionary of the Supreme Court Act to include “decision”.
The primary judge made a decision with respect to the admissibility of the evidence the subject of Orders 1 and 2. Orders 1 and 2 are each an “order” for the purposes of s 37E(2)(a). The reliance by the respondent on the NSW section and associated case law is not apposite. The NSW jurisprudence rests on a different statutory framework that is not applicable in the applicant’s case.
Leave to appeal
Evidence of the undercover operation
Background
The next day, 1 September 2018, two AFP officers, Detective Senior Constable Samuel Norman and Detective Senior Constable Josh Waring, flew from Melbourne to Canberra with the accused. During that trip, Detective Senior Constable Norman repeatedly cautioned the accused that he “did not have to say or do anything but anything he did say or do may be used as evidence”. He also told the accused that he would not be asking him questions about the alleged offence “at that time as it was not appropriate, because he would not have access to a lawyer and we could not record the conversation”. Despite this, the accused did make statements to police in relation to the gun that had been found at his premises. The accused was brought to the ACT Watch House in Canberra. He was permitted to speak to a solicitor acting for him, Mr Saeedi. At about 5.30pm on 1 September 2018, Mr Saeedi informed Detective Senior Constable Norman that the accused would consent to a forensic procedure but did not consent to be interviewed by the police. At about 5.40pm the undercover operative (“UCO William”) entered the cells in the ACT Watch House. The accused was not in the cells at the time. At about 5.45pm the accused participated in a forensic procedure. Prior to that, Detective Senior Constable Norman had informed at least one of the undercover controllers present at the Watch House that the accused had made it clear that he did not want to be questioned by the police. The forensic procedure was completed at about 6.05pm and the accused was placed in the cell area with UCO William. Thereafter, on 1 September 2018 and 2 September 2018, the accused participated in conversations with UCO William and another undercover operative (“UCO Simon”). Those conversations were recorded and subsequently transcribed. No caution was given to the accused during those conversations. The male undercover controller accepted that one of the objects of the deployment was to “elicit information from the accused regarding his involvement in the attempted murder”.
Legislation
23A Application of Part (1) Any law of the Commonwealth in force immediately before the commencement of this Part, and any rule of the common law, has no effect so far as it is inconsistent with this Part. … (5) The provisions of this Part, so far as they protect the individual, are in addition to, and not in derogation of, any rights and freedoms of the individual under a law of the Commonwealth or of a State or Territory. (6) If an offence against a law of the Australian Capital Territory is punishable by imprisonment for a period exceeding 12 months and the investigating official concerned is a member or special member of the Australian Federal Police, this Part applies to that offence as if: (a) references to Commonwealth offences included references to that offence; and (b) references to a law of the Commonwealth included references to a law of that Territory. 23B Definitions (1) In this Part: ... investigating official means: (a) a member or special member of the Australian Federal Police; or ... question has the meaning given by subsection (6). … (6) In this Part, a reference to questioning a person: (a) is a reference to questioning the person, or carrying out an investigation (in which the person participates), to investigate the involvement (if any) of the person in any Commonwealth offence (including an offence for which the person is not under arrest); and (b) does not include a reference to carrying out a forensic procedure on the person under Part ID. 23F Cautioning persons who are under arrest or protected suspects (1) Subject to subsection (3), if a person is under arrest or a protected suspect, an investigating official must, before starting to question the person, caution the person that he or she does not have to say or do anything, but that anything the person does say or do may be used in evidence. (2) The investigating official must inform the person of the caution in accordance with subsection (1), but need only do so in writing if that is the most appropriate means of informing the person. (3) Subsections (1) and (2) do not apply so far as another law of the Commonwealth requires the person to answer questions put by, or do things required by, the investigating official.
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 presented 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. Note Pt 3.11 contains other exclusionary discretions that apply to admissions. 138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained— (a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law; must not 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 the person 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 the person 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 must take into account— (a) the probative value of the evidence; and (b) the importance of the evidence in the proceeding; and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and (d) the gravity of the impropriety or contravention; and (e) whether the impropriety or contravention was deliberate or reckless; and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. 139 Cautioning of people (1) For section 138 (1) (a), evidence of a statement made or act done by a person during questioning is taken to have been obtained improperly if— (a) the person was under arrest for an offence at the time; and (b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that the official held, to arrest the person; and (c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence. (2) For section 138 (1) (a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if— (a) the questioning was conducted by an investigating official who did not have the power to arrest the person; and (b) the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence; and (c) the investigating official did not, before the statement was made or act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence. (3) The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately. (4) Subsections (1), (2) and (3) do not apply so far as any Australian law requires the person to answer questions put by, or do things required by, the investigating official. (5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if— (a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning; or (b) the official would not allow the person to leave if the person wished to do so; or (c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if the person wished to do so. (6) A person is not treated as being under arrest only because of subsection (5) if— (a) the official is exercising functions in relation to people or goods entering or leaving Australia and the official does not believe the person has committed an offence against a Commonwealth law; or (b) the official is exercising a function under an Australian law to detain and search the person or to require the person to provide information or to answer questions.
Findings of the primary judge
The applicable standard of review
Submissions of the applicant
It was accepted by the parties that the question of the standard of review of a ruling on the admissibility of the evidence is not settled (T 15.29, 34.6). The question had been raised in an appeal to the High Court from the NSW Court of Criminal Appeal, upon which the High Court was reserved at the time of the hearing of this appeal. The High Court has now delivered that decision but found it unnecessary to determine for the purposes of that appeal the question of whether the balancing test under s 138 is one to which a correctness standard applies: Kadir v The Queen; Grech v The Queen [2020] HCA 1 at [9].
The applicant submitted that the principles from House v The King (1936) 55 CLR 499 (House v The King) do not apply to the present ruling, it not being a question of discretion but rather a question which permits only one correct answer. Instead, it was submitted a “correctness standard” should apply (T 15.9). The applicant drew the analogy to the treatment of the question of “significant probative value” under ss 97 and 101 of the Uniform Evidence Laws: R v Bauer [2018] HCA 40; 92 ALJR 846 at [61] (Bauer), BC v R [2019] NSWCCA 111 at [60] (BC). The applicant adopted the following distinction outlined by Gageler J in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 92 ALJR 713 at [49]:
The line is not drawn by reference to whether the primary judge's process of reasoning to reach a conclusion can be characterised as evaluative or is on a topic on which judicial minds might reasonably differ. The line is drawn by reference to whether the legal criterion applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies...
While it was accepted the term “discretion” was used in R v Swaffield [1998] HCA 1; 192 CLR 159 (Swaffield) at [69] and [91], it was submitted this was not in the context of determining the applicable principles of appellate review and that “this area is beset by linguistic difficulties” (T 17.25). It was submitted “judgment” was the more apposite term.
It was submitted that if the House v The King principles do not apply, the primary judge was wrong that the evidence was not obtained at a price which is unacceptable having regard to prevailing community standards. Alternatively, if House v The King principles do apply, it was submitted the primary judge allowed extraneous and irrelevant matters to guide him and he acted upon a wrong principle.
Submissions of the respondent
The respondent rejected the argument that the reference in Swaffield to a discretion should be construed as a “judgment” as it was unsupported by authority. The respondents submitted that the standard of review to be applied was that set out in House v The King and that as such appropriate restraint should be exercised by an appellate court.
While it was submitted regard can be had to Swaffield, the ultimate issue is a wholly discretionary one pursuant to ss 90 and 138: Pavitt v The Queen [2007] NSWCCA 88; 169 A Crim R 452 at [30] (Pavitt). With respect to those sections, the respondent referred to the rejection by Gummow and Hayne JJ in Tofilau v The Queen [2007] HCA 39; 231 CLR 396 at [111] that House v The King principles do not apply. The respondent also referred to the acceptance of this argument in Em v R [2006] NSWCCA 336 at [54]-[56].
Consideration
Admissibility of the evidence from the undercover operation
Submissions of the applicant
[W]e 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. (emphasis in original).
(a) the police have evaded the applicant’s express exercise of his right not to speak to police by deception. In the appellant’s submission the present case is “on all fours” with Swaffield and that there was no difference of significance in the circumstances between the two cases (T 12.45);
(b) admission of such evidence would breach the fundamental common law accusatorial principle, that is, “proof by the prosecution, unaided by the accused”: Lee v The Queen [2014] HCA 20; 253 CLR 455 at [45] (Lee). In the applicant’s submission, a statutory provision will not be construed to override such a fundamental right absent clear words or necessary intendment: X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 at [125]; Lee at [32];
(c) the police failed to caution the applicant as required by s 23F(1) Crimes Act and as such s 138 of the Evidence Act was activated. It was accepted that this was a “minor consideration” with respect to the Swaffield standard. Discrete arguments that ss 90 and 138 of the Evidence Act were each themselves sufficient for exclusion were not advanced. In this respect, the applicant drew the analogy to the consideration of the “added question” of the Judges’ Rules in Swaffield: [94]-[96].
In oral submissions the applicant submitted that, should the correctness standard not be applied, the Court was open to find errors in the House v The King sense, namely, taking into account irrelevant matters or coming to a conclusion that was unreasonable or affected by latent error (T 19.20, 23.20). The applicant outlined the following three specific errors (T 22.23).
First, it was submitted the primary judge conflated the question of whether the method of investigation was proportionate to the seriousness of the crime in circumstances where the applicant was “unlikely to be cooperative” and there was “no identified alternative means of obtaining admissions” from him (see above at [31]), with the question of whether the use of the evidence so obtained against the applicant would offend the accusatorial principle. It was submitted that analysis of the seriousness of the crime or the availability of evidence was not present in Swaffield (T 20.26). In the applicant’s submission, the question of the lawfulness or fairness of the method of investigation is separate to whether the accusatorial principle has been offended. Moreover, it was submitted that where the applicant had declined to speak with police, it was “erroneous to rely upon that very invocation of the right as somehow justifying the use against the applicant of evidence obtained by a technique designed to evade the applicant’s reliance on his right”.
Second, it was submitted that the primary judge relied on the “willingness” of the applicant to disclose the information. The applicant submitted that as per Swaffield the consideration of voluntariness is anterior to the application of the “discretion”: Swaffield at [69]-[70]. At [91], Toohey, Gaudron and Gummow JJ stated “the notion of compulsion is not an integral part of the fairness discretion and it plays no part in the policy discretion”. In the applicant’s submission, the absence of an “aggravating” factor such as compulsion does not operate as a positive factor in favour of admission, and to treat it as such was erroneous (T 21.43-22.4).
Third, it was submitted the primary judge’s reliance on s 139 of the Evidence Act was misconceived and does not support a finding with respect to the standard in Swaffield. In particular, it was submitted s 139 does not provide an exclusive list of circumstances in which an admission is obtained improperly for the purposes of s 138(1)(a), and s 139 is directed to a failure to caution and does not cover the question of whether a particular method of investigation is otherwise improper nor whether evidence obtained by that method should be admitted. The applicant submitted that the fact that an act was “not improper” for the purposes of s 139 does not provide a positive reason to allow admission and reiterated that the proper inquiry was to whether the right to silence has been impugned (T 21.5).
Submissions of the respondent
In the respondent’s submission, consideration of ss 90 and 138 takes primacy over the common law discretion from Swaffield, and Swaffield is not the “controlling test” (T 30.19). It was noted the applicant “did not advance arguments that either s 90 or s 138, considered alone…required exclusion of the evidence”.
With respect to the first alleged error identified by the applicant, the respondent submitted it is unclear from the submissions what questions the primary judge apparently conflated. Given the concession by the applicant that the use of other investigative techniques was understandable, it was submitted it is a logical extension that, in the exercise of the broad discretion, such a circumstance may be relevant for the primary judge. Moreover, it was submitted that the primary judge’s reference to those “with direct knowledge of the events” who “were unlikely to be cooperative” were one of many circumstances of the case taken into account. The seriousness of the charge in the present case was also submitted to be a relevant distinction with Swaffield (T 31.35).
With respect to the relevance of the accusatorial principle in this regard, it was submitted the primary judge had expressly acknowledged the relevant statements from the High Court and had regard to them: Interlocutory Judgment at [44].
As to the second alleged error identified by the applicant, it was submitted the reference to the willingness of the accused was in the context of the consideration by the primary judge of the notion of “eliciting conduct” from Pavitt and whether it was elicited as the result of interrogation or voluntary disclosure. This was submitted to be an “entirely acceptable” consideration by the primary judge. In any event, the respondent submitted that given the generality of the concept of unfairness in s 90 and the discretion, it is “difficult to sustain any submission that questions of voluntariness is irrelevant”.
As to the third alleged error, the respondent rejected the submission that the primary judge was in error in “relying” upon s 139 to support his conclusion to admit the evidence. The respondent submitted that on a proper review of his reasons, the primary judge did not use s 139 in and of itself to conclude the evidence should be admitted and that the possible exclusion under ss 90 and/or 138 required the balancing of a number of considerations.
Accordingly, the respondent submitted that the alleged errors were not made out (T 33.29).
As to the applicant’s submission that the outcome should follow that of Swaffield and the reference to community standards therein, the respondent submitted this “fails to appreciate that those standards evolve” and that “the use of undercover police officers who employ deception and manipulation in an effort to apprehend serious offenders is now not only acceptable, it is expected” by “moderate, objective members of the community”. It was submitted that should Swaffield have been decided today, the outcome would “probably be quite different”.
Consideration
It is appropriate now to see how the argument developed in the present appeals. When the Court resumed after the first day's hearing, the Chief Justice asked counsel to consider whether the present rules in relation to the admissibility of confessions are satisfactory and whether it would be a better approach to think of admissibility 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. Putting to one side the question of voluntariness, the approach which the Court invited counsel to consider with respect to the common law in Australia is reflected in the sections of the Evidence Acts to which reference has been made, when those sections are taken in combination. The question which arises immediately is whether the adoption of such a broad principle is an appropriate evolution of the common law or whether its adoption is more truly a matter for legislative action. Subject to one matter, an analysis of recent cases, together with an understanding of the purposes served by the fairness and policy discretions and the rationale for the inadmissibility of non‑voluntary confessions, support the view that the approach suggested by the Chief Justice in argument already inheres in the common law and should now be recognised as the approach to be adopted when questions arise as to the admission or rejection of confessional material. The qualification is that the decided cases also reveal that one aspect of the unfairness discretion is to protect against forensic disadvantages which might be occasioned by the admission of confessional statements improperly obtained
Should a confessional statement voluntarily made to a witness who, unbeknown to the confessionalist, is a police officer or is acting on behalf of the police, be admitted into evidence on the trial of the confessionalist for the offence to which the statement relates? And does it matter that the confessionalist has previously refused to answer questions or make a confessional statement when interviewed by the police? These were the issues raised for consideration by the facts of two cases in which appeals were heard together in this Court.
The High Court emphasised that a degree of deception is inevitable in situations of covert investigation and is not, in itself, a reason for exclusion. Brennan CJ observed that the “investigation of a crime is not a game governed by a sportsman’s code of conduct”: [35]. Kirby J accepted “subterfuge, ruses and ticks may be lawfully employed by the police, acting in the public interest”: [155]. The question raised by the use of deception was whether, “having regard to the means by which the confession was elicited, the evidence was obtained at a price which is unacceptable having regard to prevailing community standards”: [91]. See also: Andrew Palmer, ‘Applying Swaffield: covertly obtained statements and the public policy discretion’ (2004) 28 Criminal Law Journal 217.
In our view, it was not correct to hold that the admissions and any convictions based upon them would not be obtained at a price which was “unacceptable having regard to community standards”. There is a real danger that a conviction on the basis of this evidence would be “bought at a price unacceptable having regard to prevailing community standards”. The respondent’s bold submission that if Swaffield were decided against prevailing contemporary standards the result would be different, is not accepted (T 31.45-32.8). The maintenance of the rule of law in a liberal democracy and, in this case, the protection of the fundamental common law accusatorial principle is not subject to the shifting sands of opinion polling.
This is not to say that an element of deception in and of itself would result in exclusion of the evidence in every case as the High Court made clear in Swaffield.
First, in this case, after the applicant’s solicitor informed the police that the applicant did not consent to being interviewed by police, there was a deliberate decision on the part of the police to defeat the applicant’s rights. Secondly, the applicant was in the cells and obviously had no opportunity to walk away. Thirdly, as was accepted by the prosecution, s 23F provided that a caution must be given. The context in which the deception occurred, and the combination of these factors, leads to exclusion in this case.
If the correctness test is not the correct test and House v The King principles apply, a different analysis must be undertaken. The question must be determined whether there is or is not an error in the exercise of the relevant discretion by the primary judge on the basis of House v The King principles.
The applicant relies on three broad errors in the exercise of discretion on House v The King principles:
(a) The conflation of the question of the method of investigation with the question of whether the use of the evidence would offend the accusatorial principle; (b) The absence of an “aggravating” factor such as compulsion does not operate as a positive factor in favour of admission and to treat it as such was erroneous;
(c) The fact that s 139 did not render the failure to caution improper does not alter the fact that the admissions of the applicant were elicited by the undercover officers in clear breach of his right to choose whether or not to speak to police. The fact that the act was “not improper” for the purposes of s 139 does not provide a positive reason to allow the admission.
It is appropriate to deal with the s 139 ground first.
In this context the primary judge stated the following at [55]:
In my view the legislative statement of an unambiguous rule applicable in the circumstances which was contravened would provide a firm foundation for the conclusion that to admit the evidence would be unacceptable having regard to prevailing community standards. However, while the legislative statement in s 23F considered in isolation provides an unambiguous rule, the terms of s 139 of the Evidence Act (Cth) mirrored in the Evidence Act (ACT) provide a different rule applicable to post-arrest circumstances and which, significantly, excludes covert operations. While its scope is broader than s 23F (as it applies to both Commonwealth and other offences), its existence undermines the clarity of the legislative statement of community standards for the purposes of the exercise of the discretion as to whether to admit the evidence.
The approach adopted by the primary judge was in error. Section 139 is directed to a failure to caution. The question of whether a method of investigation is improper and whether that evidence so obtained should be admitted is a different and more fundamental question. It is not the failure to caution that constitutes the breach of fundamental principle, it is the breach of the common law accusatorial principle of “proof by prosecution, unaided by the accused” as outlined in Lee.
Section 139 does not answer the question posed. The question is whether the right to silence has been impugned. The accusatorial principle has been impugned in this case.
In light of the finding that the s 139 error has been established it is unnecessary to determine the other two asserted errors. Nevertheless, the other asserted errors will be briefly discussed for completeness.
As to the second asserted error relying on the “willingness” of the applicant to disclose the information, it is clear from Swaffield that the “the notion of compulsion is not an integral part of the fairness discretion and it plays no part in the policy discretion”: Swaffield at [91]. The absence of compulsion does not itself favour admission of the evidence.
As to the first asserted error, conflating “method of investigation” and “use of the evidence” in our view has not been established in this case. Nevertheless, it is important to note at this juncture that invoking the right to silence cannot provide the rationale for the undermining of that right.
The report of Mr Roberts
On 26 July 2018, a search warrant was executed at the applicant’s home and a shotgun was located. Mr Clive Roberts, forensic firearms and tool mark examiner with the AFP, test fired the firearm and examined those cartridges against four cartridges located at the scene of the incident described at [3] above.
The process of the testing carried out by Mr Roberts was described by the primary judge at [66] of the Interlocutory Judgment.
The process adopted in the report was to test fire the shotgun and compare features of two cartridges from the test firing. That allowed Mr Roberts to identify tool marks left by the firing process that were repeated from one test to another and those that were left by the firing process that were not so repeated. He identified an impression caused by the edge of the ejector cut out on the face of the breech bolt of the exhibit shotgun. Within this area he found that there were a significant number of corresponding features which far exceeded the extent of correspondence that was seen in tool marks produced by different tools. The conclusion that there was a sufficient number of marks corresponding to permit the mark to be used as a means of identification is one based upon his specialised knowledge...The next step was to compare the same area on one of the cartridges found at the scene. A similar tool mark was identified on that cartridge and a comparison made between the features within that tool mark under a 20 times magnification. The comparison image was then marked up so as to show corresponding portions within the mark so as to “facilitate an independent and un-trained person to focus on areas where there is agreement observed by the author and other trained examiners”.
The tool marks present on the exhibit fired shotgun cartridge cases and the test fired shotgun cartridge case displayed the same class characteristics with sufficient, significant agreement of individual characteristics. This allowed me to identify that both the exhibit and test fired cartridge cases were fired in the same firearm.
The starting point is that Mr Roberts has undoubtedly used his specialised knowledge in order to identify the relevance of the tool marks for the purposes of the identification process and to identify an area where there are consistently appearing tool marks which would permit a comparison with the cartridges found at the scene. He has then applied his expertise to the identification of areas within those tool marks which match internal features of the tool mark on the exhibit cartridge. The essential point that leads to the opinion that both exhibit and test cartridges were fired from the same gun is that the extent of agreement between the tool marks was significant enough to permit the conclusion that they must have been fired from the same gun. Contrary to the submission made on behalf of the accused, the process was not simply one of comparing the similarity between a number of different areas within the duplicated tool mark. Rather, it involved the application of specialised knowledge based on training, study or experience to reach the conclusion that the extent of correspondence of the internal features was such that it met the standard of “sufficient agreement” explained in the quote set out above. While that does involve steps in the process which involve some subjective determinations not based on measurements, databases or algorithms, that does not remove the opinion from the category of opinions based wholly or substantially upon specialised knowledge. It is analogous to opinions expressed by doctors, fingerprint analysts or indeed the experts referred to by Kellam AJ in Eastman (No 43). It is different to the comparison of the appearance of a human figure shown in photographs, the subject of the decision in Honeysett, which is a matter of ordinary human experience. For that reason, I am satisfied that the opinion of Mr Roberts expressed in his reports dated 26 November 2018 and 12 July 2019 should not be excluded. Submissions of the applicant
It was the position of the applicant in the court below that there was no issue with Mr Roberts expressing an opinion regarding the similarity of tool markings, but that he should not be permitted to take “the next step” of concluding certain cartridges had been fired from the same gun. This, it was submitted, was not based wholly or substantially on specialised knowledge: s 79 Evidence Act.
The applicant raised a number of arguments in respect of the conclusion reached by the primary judge.
First, the applicant noted the relevant standard adopted (see Interlocutory Judgment at [65]) such that the “significant agreement” referred to in the expert’s opinion becomes significant “where the individual characteristics exceeds the best agreement demonstrated between tool marks known to have been produced by different tools and is consistent with agreement demonstrated by tool marks known to have been produced by the same tool”. It was submitted this opinion of agreement is not formed by reference to the “typical indicia of expert analysis, such as statistical probabilities, comprehensive databases, mathematical formulae and algorithms”. Accordingly, it was submitted the opinion of “sufficient agreement” is merely a subjective exercise and the knowledge of Mr Roberts is not capable of objective measurement. It was not sufficient to simply assert that the opinion was based on specialised knowledge. Where it was accepted there was some element of subjectivity in the opinion, there is no explanation in the Interlocutory Judgment as to how the opinion was nevertheless based on specialised knowledge (T 29.1-14). As a result, it was submitted the opinion was not based wholly or substantially on expertise and fell outside the scope of s 79 of the Evidence Act.
Second, it was submitted the primary judge erred in failing to apply the reasoning of Honeysett v The Queen [2014] HCA 29; 253 CLR 122 (Honeysett). In that case, the applicant submitted, the focus of the Court was on the exercise undertaken for comparison of images resulting in an opinion which was based on a subjective impression when reviewing the images: Honeysett at [43]-[46]. It was held the evidence ought to have been excluded. It was submitted the same reasoning was of direct application to the present case.
Third, the applicant submitted that the comparison by the primary judge to medical and fingerprint opinion was misconceived. The applicant submitted a doctor’s opinion is based on “vast and identifiable wealth of information” applied to observed symptoms and a fingerprint analysis too is conducted by reference to objective criteria including “comprehensive databases and the application of algorithms”. By contrast it was submitted that the visual comparison of Mr Roberts lacked such a basis and rendered it “essentially subjective in nature”.
Submissions of the respondent
In the respondent’s submission, it is sufficient for the purposes of s 79 that the opinion is substantially based on specialised knowledge based on training, study or experience. As was acknowledged in Honeysett “it will sometimes be difficult to separate from the body of specialised knowledge on which the expert’s opinion depends ‘observations and knowledge of everyday affairs and events’”: Honeysett at [24] citing Velevski v The Queen [2002] HCA 4; 76 ALJR 402.
Moreover, it was submitted that the level of demonstration with respect to the opinion, as to how it is based on the specialised knowledge, was a low threshold to achieve and will vary from case to case: Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 at [37]; Hart v Federal Commissioner for Taxation (No 2) [2016] FCA 897. It was accepted by the respondent that ideally the expert would have “unpacked” the basis of the opinion, for example by detailing the amount of similar analyses he had undertaken (T 35.19-28).
Contrary to the submission of the applicant, it was submitted Honeysett should be distinguished on its unique facts. It was submitted that in that case the relevant opinion was not based wholly or substantially upon the expert’s undoubted expertise in anatomy but rather subjective impression. In the respondent’s submission, Honeysett:
[D]id not lay down any principle that where an opinion involves subjective impressions or elements, it will cease to have the character of expert evidence. Nor, where an opinion which contains comparative aspects (i.e. comparing two images or otherwise) will not qualify for admission.
Consideration
The three grounds [identified at [6(b)] above] are interrelated. It is therefore appropriate to deal with this ground on the basis that the asserted error is, at its core, that the opinion of identification was not wholly or substantially based on specialised knowledge.
Mr Roberts is entitled as an expert to express an opinion regarding the similarity of the tool markings. So much was conceded by the applicant (T 23.42-24.1). He is not entitled, in our view, to take the next step.
The opinion of Mr Roberts was that “both the exhibit and test fired cartridge cases were fired in the same firearm”. It is this opinion that is not based wholly or substantially on specialised knowledge: s 79 Evidence Act.
It is not enough to assert that an opinion is based on specialised knowledge. The opinion of “sufficient agreement” is not susceptible to objective measurement in this case. While in Dasreef it was stated that where “a specialist medical practitioner [is] expressing a diagnostic opinion in his or her relevant field of specialisation” satisfying the requirements of s 79 “will require little explicit articulation or amplification”, this evidence is not analogous to such specialist medical evidence. Nor is the judicial notice of fingerprint evidence apposite in this context. The visual comparison by Mr Roberts was subjective in nature and not conducted by reference to accepted objective criteria. Evidence of similarity based on objective criteria is one thing, evidence purporting to establish that it is from the same firearm is quite another. It does not on the facts of this case go above a bare ipse dixit - I say it is: see Dasreef at [93]. There has been a failure to demonstrate that the opinion is based on the witness’ specialised knowledge. In this context assertion cannot constitute expert evidence.
Orders
(a) Leave to appeal is granted.
(b) Leave to rely on the draft notice of appeal filed with the application for leave to appeal on 14 August 2019.
(c) The appeal is allowed.
(d) Orders 1 and 2 made by Mossop J on 16 August 2019 are set aside.
(e) The evidence obtained from or in consequence of the undercover operations conducted by undercover operatives UCO 67469834 and UCO 23847098 on 1 and 2 September 2018 is not to be admitted into evidence at the applicant’s trial.
(f) The opinion of Mr Clive Roberts that “both the exhibit and test fired cartridge cases were fired in the same firearm” is not to be admitted into evidence in the applicant’s trial.
I certify that the preceding eighty-four [84] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Burns, Justice Elkaim and Justice Loukas-Karlsson.
Associate:
Date:
Sidaros
The Queen [2020] ACTCA 11
(1936) 55 CLR 499
The appeal is competent.