Tofilau v The Queen

Tofilau v The Queen - [2007] HCA 39 - HCA 2007 case summary — Zoe

[16]

GLEESON CJ. The appellants were suspected of having committed serious and violent crimes (murder). They were tricked by undercover police officers, posing as criminals, into confessing. They were tried and convicted. Their confessions were received in evidence. The technique of deception used by the police, and the details of the confessions, appear from the reasons of other members of the Court. The confessions, which were made in circumstances that supported rather than cast doubt upon their reliability, were obviously found by the trial juries to have been true. The issue in these appeals is whether the evidence of the confessions should have been excluded.
All four appellants rely upon the rule of the common law that evidence of a confession (the rule covers all admissions, but we are concerned here with admissions that amounted, or for practical purposes amounted, to confessions) may not be received against an accused person unless it is shown to be voluntary. In this context, as in other legal contexts, the word "voluntary" may create uncertainty. There is, however, an aspect of the rule with a more specific focus. A confessional statement will be excluded from evidence as involuntary if it has been obtained from an accused either by fear of prejudice or hope of advantage, exercised or held out by a person in authority[1]. That particular and well-established form of involuntariness was described by Dixon J as "the classical ground for the rejection of confessions and [that which] looms largest in a consideration of the subject."[2] Even so, it does not cover the field.
In addition to the rule that requires a trial judge to exclude evidence of a confession that is not voluntary, there are discretionary principles according to which a trial judge may exclude evidence of a voluntary confession. Those principles have been stated in a number of decisions of this Court, and were summarised in R v Swaffield[3], by Toohey, Gaudron and Gummow JJ, as covering three classes of case. The first is a case where it would be unfair to the accused to admit the statement. The relevant form of unfairness is related to the law's protection of the rights and privileges of the accused person. The second is a case where considerations of public policy, such as considerations that might be enlivened by improper police conduct, make it unacceptable to admit the statement. The third concerns the general power of a trial court to reject evidence on the ground that its prejudicial effect (that is to say, the danger of its misuse, not its inculpatory force) outweighs its probative value.
The first two of those discretions were of potential relevance to these cases. They were invoked by the appellants at trial in the Supreme Court of Victoria, and in the Victorian Court of Appeal. The ability to invoke considerations of unfairness, and public policy, in support of an argument for exclusion of confessional evidence in the exercise of a judicial discretion limits the need to go beyond established principle in seeking to characterise the conduct of a confessionalist as involuntary. If what is really meant is that, the confession having been induced by some form of deception, it would be unfair to the accused (in the sense stated above) to receive it in evidence, or contrary to public policy to allow the deception to bear fruit, then existing principle brings discretion into play. There is no occasion to seek to extend the concept of voluntariness beyond its accepted limits in order to accommodate considerations of fairness and public policy. On the other hand, it is understandable that an accused would seek to invoke a rule of mandatory exclusion rather than to rely only upon discretionary judgment. Furthermore, the approach taken by appellate courts to the review of discretionary decisions may make it more difficult for a convicted person to challenge an unfavourable ruling[4]. This consideration will be even more compelling in a second appellate court, where an intermediate appellate court has reviewed, and affirmed, a trial judge's exercise of discretion. These forensic considerations were reflected in the course taken in argument in these appeals. Initially, all four appellants confined their arguments in this Court to the issue of voluntariness: both the narrower, more specific, aspect earlier identified, and the wider, less clearly defined aspect (referred to in argument, adapting an expression used by Dixon J in McDermott v The King[5], as "basal voluntariness"). Under pressure of argument, one appellant relied as well on the discretionary principles. Concentrating on the mandatory rule of exclusion avoided the difficulty of overcoming discretionary judgments which had already been affirmed after appellate review. Tactically, it may have suited the appellants not to become too closely involved in the extent to which their complaints could be dealt with on discretionary grounds. In this connection, it is interesting to note the course of argument and decision in the two matters decided in Swaffield. Those cases involved confessions obtained by subterfuge and deception. They were dealt with according to principles of discretionary exclusion. If some of the arguments advanced in the present appeals were correct, then Swaffield and its related appeal would seem to have been dealt with according to the wrong principle. On the approach of at least three of the present appellants, they should have been dealt with under the rubric of mandatory exclusion of involuntary confessions.
Two further preliminary matters should be mentioned. First, the common law rules with which we are presently concerned apply, not only to confessions of guilt, but to all admissions sought to be used in evidence against an accused person at trial. Sometimes, an admission may be made in the course of an assertion of innocence. It may be an admission of a fact which is not seriously in dispute, which of itself is not inconsistent with innocence, but which the prosecution could not otherwise prove. The admission may have been made to any manner of person, and in any kind of circumstance. It may have been made in response to a mistake, a misrepresentation (either deliberate or innocent), to the pressure of events or circumstances, or to mere inadvertence. It may have been made in circumstances where issues of legal rights or consequences, or considerations of choice either to speak or remain silent, never entered the mind of the maker. It would be clearly wrong to suggest that the only kinds of admission used in evidence at criminal trials are those made to police officers in a context of a conscious decision not to exercise a "right to silence". Admissions, which may turn out to be very damaging, are often made in circumstances where the maker of the admission is unconcerned with legalities, and may not even realise the significance that later will be attached to what is said. Secondly, the use by the police of deception in the hope of eliciting admissions is not new. The particular technique of deception adopted in the present cases seems to have been imported into Australia from Canada. Since these trials, it has been reported in the media. Presumably, unless Australians suspected of serious crime are unaware of what is contained in the newspapers, it has a limited life expectancy. It would, however, be erroneous to characterise these appeals as raising a completely novel problem demanding reconsideration of established legal principle. The use of undercover police operatives always involves deception. Such operatives are undercover precisely because they are trying to deceive somebody about something. The technique of deception used in Deokinanan v The Queen[6], where the police put an accused person's friend in a prison cell with the accused in the hope of obtaining a confession, is common. These days, the friend would probably be equipped with a secret recording device. The Privy Council held that the confession was voluntary and admissible. All forms of covert surveillance, many of them authorised (subject to safeguards, such as a requirement for judicial approval) by statute, involve a kind of deception. Interception and recording of telephone conversations often produces evidence of admissions tendered at a criminal trial, as well as circumstantial or direct evidence of criminal activity. The parties to those conversations speak in the erroneous belief that they are not being overheard. They have no opportunity to consult a lawyer, or to take advice on what they should or should not say. They are not given any warning that what they say may be used against them. They do not waive any right to silence. Yet, if a suspect, in an intercepted and secretly recorded conversation, makes an admission, that admission is ordinarily and rightly regarded as voluntary. At least, it is not regarded as involuntary simply because the person making the admission is the victim of a form of deception.
The concept of voluntariness, which is significant in many legal contexts, is protean. This was explained by Windeyer J in Ryan v The Queen[7] to be "partly because of ambiguities in the word 'voluntary' and its supposed synonyms, partly because of imprecise, but inveterate, distinctions which have long dominated men's ideas concerning the working of the human mind". Even the use of terms such as "mind" and "will", or "freedom of choice", may provoke scientific or philosophical protest. Generally speaking, however, the law, as a normative science which must evaluate human conduct for practical purposes, accepts certain working hypotheses, one of which is the existence of free will. It judges the conduct of people upon assumptions of personal autonomy that may be rejected by a psychiatrist or a philosopher[8]. Conscious of this problem, judges, when they speak of confessions as voluntary, or involuntary, often seek to explain what they mean. In Cornelius v The King[9], Dixon, Evatt and McTiernan JJ gave as an example of an involuntary statement one that is given in consequence of a threat made, or a promise of advantage given, by a person in authority. In the preceding sentence, however, they stated a wider proposition: "If [a statement] is made as a result of violence, intimidation, or of fear, it is not voluntary." Similarly, some years later, in his judgment in McDermott, Dixon J referred both to the "definite rule" excluding statements resulting from threats or inducements by persons in authority, and also to a wider concept. He said that to say that a statement has been voluntarily made means "that it has been made in the exercise of [a person's] free choice". He amplified this: "If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary."[10]
An example of the dangers involved in giving a broad and colloquial meaning to the concept of voluntariness is provided by cases dealing with the admissibility of statements made by people under a legal obligation to answer questions. The courts have rejected arguments that such statements, not being made in the exercise of a free choice to speak or remain silent, were involuntary. One such case was R v Kempley[11], where the Court of Criminal Appeal of New South Wales held that admissions made under compulsory interrogation pursuant to certain regulations could be received in evidence in a later prosecution, and were not involuntary. The case went to this Court, where special leave to appeal was refused. Latham CJ said[12]:

[25]

The common law of evidence in Australia has treated the definite rule as a specification of a particular form of conduct, involving the application of a certain kind of coercive force external to a confessionalist, which it will not accept as a reason for voluntary action. At the same time, it has declined to limit itself by treating that as the only form of conduct that will destroy or overwhelm the freedom of choice which it considers necessary to make conduct voluntary. (Some Australian jurisdictions have enacted legislation which deals somewhat differently with the matter of admissions, but such legislation is not of present concern.)
The law treats as voluntary a great deal of conduct about which a person, speaking colloquially, may say that he or she had no choice. Since the original rationale for the principle of exclusion of involuntary statements was concern about the unreliability of statements made under coercion, that will sometimes be a useful guide in making a judgment about what kind of conduct will be taken to render a statement involuntary. It is, however, of no assistance to the appellants in this case, because the deception practised upon them was not such as was likely to elicit a false confession.
To the extent that abuse of the state's coercive authority is another part of the rationale for the exclusionary rule, there are two difficulties for the appellants. The first has already been mentioned in dealing with the definite rule: the appellants thought they were talking to criminals, not police officers. The second is that deception is a very common method of seeking to obtain confessions from people suspected of crime. For most of the twentieth century, the Crimes Act 1900 (NSW), in s 410, excluded evidence of confessions induced by untrue (meaning deliberately false[21]) representations made by persons in authority. That legislation was unusual, and went beyond the common law. Thus, in Adams, Criminal Law and Practice in New Zealand[22], the following appeared:

[27]

Since possible forms of deception are bounded only by human imagination, and human gullibility, it would be dangerous to assert that no form of deception could deprive conduct of its voluntary character. Most deception used in the hope of eliciting admissions, however, including the form used in the present case, is calculated to induce a person to choose to reveal information that otherwise would be concealed. The appellants were subjected to powerful psychological pressure, but it is not unusual for people to reveal old secrets under pressures that are no less compelling. The law attempts to distinguish between external pressures and pressures personal to the confessionalist[23]. That itself may be a distinction based on pragmatic rather than scientific considerations. The effect of external forces and circumstances on an individual is likely to depend on characteristics personal to the individual. That which a person of one disposition may regard as unbearable pressure may be a matter of indifference to another. The physical or emotional characteristics of a person, or that person's background or circumstances, will always be material to the effect of externally imposed pressure. The burden of guilt may weigh heavily on one person but may be borne lightly by another.
References were made in argument to the appellants' "right to silence", and to the effect on that right of the techniques adopted by the undercover police. As Lord Mustill pointed out in R v Director of Serious Fraud Office, Ex parte Smith[24], that expression "refers to a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute." It is not a single principle. It is a convenient shorthand reference to a collection of principles and rules, some substantive and some procedural. If it is said that there has been an infringement of a person's right to silence, then it is usually necessary to identify the particular legal rule involved and to explain the nature of the infringement by reference to that rule. The tendency in argument in the present case was to use the shorthand description to create an aura of inviolability around the appellants' guilty secrets, and then to take the further step of characterising the tricking of the appellants into deciding to reveal those secrets as an overbearing of the will.
In answer to this line of reasoning it must again be observed that many forms of undercover police activity, and of covert surveillance, involve attempts to gain information from people who, if they were aware of what was going on, would remain inactive or silent. There is a sense in which it can be said that intercepting a telephone conversation, or secretly recording an interview, always deprives a person of the opportunity to remain silent in circumstances where, if the person had realised that he or she was under observation, the person would have remained silent. That does not mean that there has been an infringement of one of the legal rules which together make up the right to silence. Nor does it mean that what is being said in the conversation is involuntary. The argument seems to equate the right to silence with a right of privacy, and to treat as involuntary any statement that is made without a fully-informed appreciation of the possible consequences. Neither step is consistent with legal principle.
In Basto v The Queen[25], Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ described s 410 of the Crimes Act 1900 (NSW) as a "statutory extension of ... common law doctrine". Yet if the argument for the appellants in the present case were correct it was not an extension at all; fraudulent misrepresentations would vitiate consent and result in involuntariness. The argument for the appellants proves too much. If the deception practised upon the appellants rendered their statements involuntary, then many other forms of deception to which people suspected of crime are subjected will have the same consequence. The wills of the appellants were not overborne. Their statements were, in a legal sense, voluntary.
There remain, however, the discretionary grounds relied upon by one appellant. There, questions of unfairness, including unfair derogation from legal rights, and matters of public policy, including an evaluation of police conduct, are important.

[29]

The appeals should be dismissed.
GUMMOW AND HAYNE JJ. Undercover police, posing as criminals, tell a murder suspect that, to join their gang and profit from their activities, he must tell their boss the truth about his involvement in the murder. They tell him that, if he does that, the boss can and will make any problems "go away". The undercover police play out various scenarios designed to show the suspect how successful and powerful they are as criminals. Any initial protestations of innocence by the suspect are met with insistence upon the need to tell the truth because charging and conviction are inevitable if the gang's help is rejected. Is the suspect's subsequent confession to those who play the roles of boss and gang members a voluntary confession?
This is the central issue that arises in each of these appeals. Although the facts of each case differ in their detail, they raise the same legal issue, and it is to be resolved in the same way. In each case the appellant's confession was rightly held in the courts below[27] to have been made voluntarily.
There are three separate, but overlapping, inquiries that may have to be made in deciding whether evidence of an out‑of‑court confessional statement is admissible[28]. First, there is the question, commonly described as a question of "voluntariness", presented when the confession in issue was made to someone identified as a "person in authority". Second, there may be the consideration of exclusion of evidence of the confession based upon notions of "basal voluntariness"[29]. Finally, there is the discretion to exclude evidence of the confession for reasons of fairness, reliability, probative value or public policy[30].
The first question, the question of "voluntariness", requires examination of whether the statement in issue was made to a person known or believed by the speaker to be a person in authority. In the present cases, because each appellant neither knew nor believed that those to whom he was speaking were police (or other persons having lawful authority to affect the course of the investigation of or prosecution for the offence to which the confession related) the particular rules about confessional statements to persons in authority were not engaged.
The central inquiry in each of the present cases concerns the second question - the question described as "basal voluntariness". In none of the present cases was there compulsion of the kind that would deny "basal voluntariness". In each case, the appellant could and did choose not only whether to say anything about the murder, but also what he said about that subject. That he spoke at all because he thought that he would profit from doing so does not mean that he was not free to choose whether he spoke or remained silent about the murder. His statements were made voluntarily.
In only one of the present cases (the matter of Clarke) was it submitted that it was necessary to consider the third issue which may arise in connection with confessions - the discretion to exclude evidence of the out‑of‑court statement alleged to constitute or contain a confession. It was said, in Clarke, that the confession to undercover police should have been excluded because it was unfairly or inappropriately obtained by or on behalf of investigating authorities. This contention should be rejected.
It is convenient to turn at once to a consideration of the origin and content of the applicable principles. Once that is done, so much of the facts of the individual cases can be set out as is necessary to permit consideration of the application of those principles.

[38]

The way in which the requirement of an inducement by a person in authority had been understood before the decision in Baldry was not then without controversy. Not least was that so because cautions against saying anything in response to official questioning had been held[36] to be a form of inducement. In Baldry, Parke B said[37] that the rule about inducements had "been extended quite too far, and that justice and common sense have, too frequently, been sacrificed at the shrine of mercy". But leaving aside these controversies about the particular content that was then given to the rules governing the admissibility of evidence of out‑of‑court confessional statements made to persons in authority, the rules remained rooted in considerations of reliability. Indeed the burden of the criticism made by Parke B in Baldry of earlier decisions about what was an inducement by a person in authority was that the consequence of the earlier decisions was to exclude evidence that was not likely to be unreliable.
The way in which Parke B stated the rule in Baldry was consistent with the need to make a distinct inquiry about "basal voluntariness". And that understanding of the rule stated by Parke B would have been consistent with what had earlier been written on the subject in the first edition of Best on Evidence. But subsequent developments in the law relating to confessions suggest strongly that the rules stated by Parke B were later understood as a single rule concerned only with statements to persons in authority. Indeed it is the statement of Parke B in Baldry that has subsequently been identified[38] as the point at which the requirement of an inducement by a person in authority became an essential part of the test. And, as will later appear, it was not until this Court's decision in McDermott v The King[39] that the overarching principle of voluntariness was again identified as encompassing the consideration of not only inducements offered by persons in authority but also "basal voluntariness". Yet it is to be observed that the formulation in successive editions of Best on Evidence of the relevant principles remained substantially unchanged through the latter half of the 19th century and into editions published as late as 1922[40].
The rule about confessional statements to persons in authority remains. A confession made following a promise or threat by a person in authority is inadmissible. As was said in the advice of the Privy Council in Ibrahim v The King[41], a case sometimes treated[42] as the origin of much of the modern Australian law relating to the admissibility of confessions[43]:

[44]

Yet it is clear that during the 20th century there was a major conceptual shift in the rationale for the law in this area. First, there was introduced a concern for self‑determination as encapsulated by the maxim nemo debet prodere se ipsum (no one can be required to be his own betrayer or, in what Lord Diplock said[48] was "its popular English mistranslation 'the right to silence'"). It has been argued that this was a conflation, perhaps based on confusion, of the traditional requirement for voluntariness to determine reliability and the privilege against self‑incrimination[49]. Second, there emerged a concern to regulate police conduct by excluding evidence obtained by inappropriate police action. There would seem little doubt that the latter concern was linked to the growth of a professional police force in the latter half of the 19th century and was both reflected in and grew out of the introduction of the Judges Rules in England in 1912[50]. However this may be, by the end of the 20th century, three rationales had been propounded[51] to support the rule excluding evidence of an out‑of‑court confession made in response to some threat or inducement made or offered by a person in authority: reliability, self‑determination and regulation of police conduct.
It may be that the way in which the law has developed in other jurisdictions, notably Canada[52] and England[53], before statutory intervention[54], may best be understood as the rearticulation of applicable principles in ways intended to accommodate application of these other rationales to the exclusion of certain kinds of confessional evidence. In particular, the treatment in those jurisdictions of the idea of "inducement" (and, perhaps, "person in authority") may owe much to accommodating principles of self‑determination and police regulation in a single test originally informed only by considerations of reliability. Whether that is so need not be decided.
For present purposes, it is important to notice that the common law in Australia has developed in and since McDermott by identifying the three overlapping rules mentioned earlier in these reasons. Those rules deal with confessional statements made to persons in authority, but also engage the considerations described as "basal voluntariness" and the application of the discretionary principles earlier mentioned. Because the common law in Australia has developed in this way it is neither necessary nor appropriate to extend the concept of "person in authority" beyond those persons known or believed by the confessionalist to have lawful authority to affect the course of the investigation of or prosecution for the offence in question[55].
In the present matters, the focus falls upon "basal voluntariness".

[49]

The plea of non est factum which puts in issue the execution of an instrument by the defendant, who alleges the absence of a consenting mind, is kept within narrow limits to allow for the significance attached by third parties to the presence of a signature upon a document[59]. On the other hand, where an alienation of property is set aside on the ground of undue influence, the law responds to "an unconscientious use of any special capacity or opportunity that may exist or arise of affecting the alienor's will or freedom of judgment in reference to such a matter". The words are those of Dixon J in Johnson v Buttress[60]. When Dixon J thereafter in McDermott[61] came to deal with "basal voluntariness" in the context of the law of evidence he used, as these reasons will show, different terms.
What emerges are two general propositions, supported by what was said by Lord Wilberforce in Lynch[62] with reference to Barton v Armstrong[63]. The first is that only some of the means by which consent to act or speak may be obtained are classified unacceptable for the attribution of legal consequences. The second is that what the law accepts in one field of legal discourse it may regard as unsatisfactory in another.
When one turns to the common law respecting the inadmissibility of some confessional statements, it must first be said that the common law tests of voluntariness have never required a subjective inquiry into the mind of the confessionalist to determine why it was that he or she made the statement of which evidence is to be given. Rather, subject to what later is said about the discretion to reject confessional evidence, the common law rules have sought to operate by excluding evidence from consideration of the tribunal of fact that is deemed so unreliable as a class that it should not be available for consideration. The exclusionary effect of the rules is important. Although it is for the prosecution to demonstrate[64] that a confession was made voluntarily before it becomes admissible, the rules are essentially exclusionary in character. The rules deal only with the admissibility of evidence of out‑of‑court confessional statements. If the evidence is admitted, it remains open for the confessionalist to argue, and for the tribunal of fact to accept, that, even if the statement was made, it is not reliable.
To the extent to which questions of fairness are distinct from reliability, and to the extent to which questions of controlling police conduct and methods are relevant, they are best dealt with under the discretion. Questions of basal voluntariness are to be understood as informed only by considerations of reliability of the evidence concerned. Do the circumstances in which the evidence was obtained fall into the category of cases which the law classifies as so likely to produce unreliable evidence that the evidence should be excluded from consideration by the tribunal of fact? In order to make good the propositions just stated, it is necessary to consider what was said in McDermott.

[53]

The content given by Dixon J, in McDermott, to the word "voluntarily" is important. As pointed out above, the overarching principle is that a confession cannot be admitted into evidence unless it is shown to have been made "voluntarily". Both the rules governing the exclusion of evidence of certain confessions made to persons in authority and the principle of "basal voluntariness" take their place as aspects of this one principle. Both also identify criteria that found a legal conclusion: that the confession was not made "voluntarily".
That this is the way in which the rules operate is most obviously apparent in the rule concerning statements made to persons in authority. The particular content that is given to both the concept of "inducement" and the concept of a "person in authority" constitute the criteria that yield the relevant legal conclusion: that the confession was not made voluntarily. But as the reasons of Dixon J in McDermott show, application of the rule about "basal voluntariness" also depends upon identifying the criteria that are to found the legal conclusion that a confession was not made "voluntarily". The relevant conclusion is described as the will being "overborne". The circumstances that yield that conclusion, and provide the criteria which govern the availability of the legal conclusion, are described as "the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure". All are species of compulsion.
Further refining the content of the criteria that are engaged under the head of "basal voluntariness" must take account of the way in which the tests will fall for consideration. "Basal voluntariness" may be seen as a principle underpinning the whole of the law relating to confessions. But it is a principle that in practice will fall for consideration, if at all, only in cases not concerning a person in authority. The test excluding statements preceded by an inducement in the form of fear of prejudice or hope of advantage held out by a person in authority necessarily excludes confessions in which a person in authority has so acted as to engage the principle of basal voluntariness. For, of course, if a person in authority subjects a suspect to coercion, whether by threats of violence or other intimidatory acts, the rule excluding a confession made to a person in authority in response to an inducement is readily applied. Further questions may then be engaged where the person in authority is an agent of the state. Thus, the conduct of state agents will either be dealt with directly under the rules about statements to persons in authority or, if those rules do not require exclusion of the evidence, circumstances that are said to bear upon reception of the confessional evidence that state agents have obtained can be examined in connection with the exercise of the discretion.
Confessions made to someone not known or believed to be a person in authority will thus fall to be considered under the test of "basal voluntariness". Basal voluntariness is concerned with confessions made under compulsion. The key inquiry is about the quality of the compulsion that is said to have overborne the free choice of whether to speak or to remain silent. In this context, "overborne" should be understood in the sense described[71] by Dixon J as "the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure". It is necessary to focus upon the sufficiency of the compulsion.
In McDermott, Dixon J treated overbearing of the will separately from the fear of prejudice or hope of advantage. Fear of prejudice and hope of advantage were treated as the two species of the genus of inducements. But, by contrast, overbearing of the will was confined to circumstances like duress. Considerations of a fear of prejudice or the hope of advantage were seen as not only different from an overbearing of the will but also as relevant only to statements made to a person in authority.
Rarely, if ever, would the test of "basal voluntariness" exclude confessions where some hope of advantage (as distinct from fear of prejudice) was held out to the person who made the confession. The "basal principle" of which Dixon J spoke[72] is "a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man's will" (emphasis added). But there are few circumstances when an inducement in the form of a promise of advantage will compel a person to speak. Promises of advantage that are not made by a person whom the confessionalist knows or believes to be a person in authority would rarely, if ever, be such as could found the conclusion that the speaker did not have a free choice to speak or remain silent. That is not to say that the promising of an advantage may not bear upon the exercise of the discretion. It may do so.
Two further points should be made. The first is negative and identifies what does not suffice to show that the will has been overborne. The conclusion that a confessionalist had no choice to speak or stay silent is not required (and without more being established, would not be open) if it is observed that the confessionalist acted under some misapprehension or mistake, even if that misapprehension or mistake was induced by the person to whom the confession is made. Nor is that conclusion required (and without more being shown the conclusion would not be open) if it is observed that there was some imbalance of power between the confessionalist and the person to whom the confession was made.
The second point to make is that the conclusion that a confessionalist had no choice to speak or stay silent is not readily reached where the confession was not made to a person whom the speaker knew or believed to be a person in authority. In such a case, absent duress of person or intimidation, it will be necessary to articulate why there was no choice. Was the importunity, insistence or pressure so sustained or persistent that there was no choice? Why? By hypothesis, the confessionalist did not know or believe that the weight of the state or its agencies bore upon him or her. What, then, is said to have deprived that person of choice? For the basal voluntariness rule to apply it must be possible to identify what it was that is said to have deprived that person of choice.

[54]

In only one of the present cases, the case of Clarke, did the appellant submit that the discretion to exclude the confession should have been exercised in favour of its exclusion from evidence. It was submitted that the confession had been inappropriately or unfairly obtained by investigating authorities. This being the particular basis of the appellant's complaint, it is neither necessary nor appropriate to attempt to chart the metes and bounds of the discretion. Only those aspects of the discretion that are relevant to the facts in Clarke require application. It is nonetheless important to begin consideration of the application of the discretion by reference to three decisions of this Court - R v Lee[73], Cleland v The Queen[74], and R v Swaffield[75].
In Lee, the Court decided some questions about the operation of what is now s 149 of the Evidence Act 1958 (Vic). Those issues may be put to one side. But the decision in Lee is also important for what it decided about the circumstances in which a voluntary confession may be excluded in the exercise of the discretion. The Court discountenanced asking[76], as separate questions, whether a police officer had acted "improperly" and then whether it would be unfair to reject the accused's statement. Rather, it was said[77] to be "better to ask whether, having regard to the conduct of the police and all the circumstances of the case, it would be unfair to use his own statement against the accused". And emphasis was given[78] to it being in the interests of the community that all crimes "should be fully investigated with the object of bringing malefactors to justice, and such investigations [not being] unduly hampered".
In Cleland[79], a majority of the Court again emphasised the purpose of the rules as to confessions (and in particular the residual discretion) as being to ensure that the accused has a fair trial not, as Gibbs CJ put it[80], "to insist that those who enforce the law themselves respect it". In that regard, Gibbs CJ expressly agreed[81] with what Brennan J had said in Collins v The Queen[82] that:

[60]

On 29 June 1999, Belinda Romeo was found dead in her unit. She had been dead for some days. She had died by ligature strangulation.
On the day after Ms Romeo's body was found, the appellant made a statement to police in which he described having met Ms Romeo about half way through March 1999. They had commenced a sexual relationship and the appellant had moved into Ms Romeo's unit soon after they had met. He said that he had stayed there for two weeks until he left and returned to live with relatives in Carlton. He said that the last time he had seen Ms Romeo was at a club, in the early hours of the morning of Sunday, 20 June 1999. He had subsequently tried to telephone her but with no result.
One month later, on 29 July 1999, the appellant was arrested and he took part in a videotape recorded interview at the offices of the homicide squad of the Victoria Police. He denied any involvement in Ms Romeo's death and was released without being charged.
Little progress was made in the investigation of Ms Romeo's death during the next two years but in November 2001, the investigation took a new turn. Between November 2001 and March 2002, police constructed a series of 16 scenarios in which undercover police operatives, posing as members of an organised criminal gang, interacted with the appellant. The officer in charge of the police team subsequently gave evidence at the appellant's trial that he had been provided with only basic information about the circumstances surrounding the death of Ms Romeo and that very little information was given to the covert operatives. He said that this was done so that leading questions would not be asked by operatives that might affect the reliability of any admissions they obtained and to ensure that they did not inadvertently disclose to the appellant that they knew anything about the matter.
It is not necessary to describe the techniques used by the undercover police officers. Considerable emphasis was given to instilling in the appellant a sense of confidence that association with what he was led to believe was a criminal gang would bring not only financial and personal reward but also protection against police investigation. The appellant participated in or observed what appeared to be serious criminal activity by gang members. In fact, the "criminal" activity was staged. From time to time reference was made in conversation between the appellant and members of the gang to the appellant's connection with the death of Ms Romeo. Over time it was made plain to the appellant that it was important that the appellant tell the gang the whole truth about his background. If he did, the problem could be handled.
The covert operations culminated in March 2002. Police served a notice on the appellant foreshadowing an application to the Magistrates Court for permission to take a sample from him for DNA analysis. (He had refused to give such a sample when he was interviewed in 1999.) One of the gang members, on being told that the notice had been served, exhorted the appellant to tell the truth. He told the appellant that he did not believe what the appellant had earlier said and that he believed that the appellant had killed Ms Romeo. The appellant then admitted to killing Ms Romeo by strangling her with something she had round her neck. As the trial judge put it[88], the appellant was "effectively persuaded" by one of the covert operatives to give a full and frank account of the killing to the gang's boss.
The appellant was then taken to a meeting, in a hotel room, with the man whom he understood to be the "boss". What happened in that room was videotape recorded. The "boss" told the appellant that he did not have to say anything, that he could "get up and walk out now" but that the "boss" could not help him if he did. The boss went on to say[89]:

[63]

On the day following this conversation the appellant was arrested, taken to the offices of the homicide squad, and there he participated in a tape recorded interview. He denied that he had been to the hotel but, when the recording was played, he accepted that the voices on the recording that had been made of the conversation at the hotel were his, and that of the "boss". The appellant denied strangling Ms Romeo and said that he had decided to pretend that he had committed a murder so that he could work in the gang.
In the course of the interview, the appellant was shown a scarf found in a car behind Ms Romeo's unit. He denied ever having seen it before. It was put to the appellant that he had told the "boss" about throwing the scarf with which he had strangled Ms Romeo into a car at the back of the block of units. He was asked how he could explain how he knew where the scarf had been found if his story about participating in the murder was all an invention. He declined to offer any comment.
The trial judge[90] and the Court of Appeal[91] held that what the appellant had said to gang members and the boss were not statements made to a person in authority. These conclusions were correct. During the recorded interview with officers of the homicide squad the appellant said, "I don't know if he's [the boss is] a cop or not."[92] Because the appellant neither knew nor believed that those to whom he spoke had lawful authority to affect the course of the investigation of or prosecution for the murder of Ms Romeo, the rules about confessional statements to persons in authority were not engaged.
The trial judge[93] further held that evidence of what the appellant had said in the conversations was not to be excluded as not being made voluntarily. (The better view may be that no distinct point about basal voluntariness was argued in the Court of Appeal, though it is plain that reference was made to the subject.) However this may be, the trial judge's conclusion on that subject was correct.
The statements the appellant made to undercover police officers were not made under compulsion. Nothing that was said to or done with the appellant constituted compulsion of a kind that would meet the criteria leading to the conclusion that what was said was not said voluntarily. There was no duress or intimidation. The police operation was elaborate and took place over an extended period. The appellant thought that he would benefit from saying what he did. More than once the appellant was told how important it was that he be frank about his past and about the circumstances of Ms Romeo's death in particular. He was repeatedly told that if he had a problem the boss would make it "go away". But no coercion was applied to the appellant by those to whom he made his confession. There was no importunity, insistence or pressure of a kind exerted by those to whom the confession was made that would found the conclusion that the appellant had no free choice whether to speak or stay silent. Observing that the appellant may have felt under pressure requires no different conclusion. What is important is the absence of coercion by those to whom he spoke. That he may have felt under the pressure that he himself generated by his desire to join the gang and thus gain not only the financial benefits said to follow from that membership but also resolution of what otherwise appeared to be his inevitable prosecution for murder is not to the point.
The appeal to this Court should be dismissed.

[64]

This appellant was charged with the murder of his great‑aunt, Margaret Mary O'Toole. She was found dead in her home on 17 April 2002. She had been beaten to death. In April 2002, the appellant owed more than $28,500 on credit card accounts. His accounts were overdrawn. One creditor had obtained judgment against him. The previous year, in April, the deceased, accompanied by the applicant, had borrowed $28,000, secured by mortgages over certain real estate, for use in a "business investment". There was evidence, and there were admissions made by the appellant, from which it would have been open to the jury to conclude that the appellant had received the money which his great‑aunt borrowed. There was evidence of the appellant borrowing other money from her. There was also evidence from which it would have been open to the jury to conclude that the deceased either had called for repayment of the money lent or proposed to do so.
In May 2002, police arrested the appellant, cautioned him, searched his premises, and conducted a videotape recorded interview. He was not then charged with the deceased's murder.
Between 25 September 2002 and 27 November 2002 the Victoria Police Undercover Unit conducted an operation of the same kind as has been considered in the matter of Tofilau. Again, the operation culminated in an interview with the "boss" of the criminal gang conducted in a hotel room. Again, the "boss" said that he did not care whether the appellant was responsible or not for the death of the deceased but that he needed to know what had happened so that the situation could be "handled". The appellant described to the "boss" how he had killed the deceased and what he had done after doing so.
At his trial the appellant submitted that evidence of these statements should be excluded. On the voir dire he adduced evidence from a consulting clinical and forensic psychologist that, in his opinion, the appellant was suffering from a borderline personality disorder as well as a dependent personality disorder and an adjustment disorder, in addition possibly to an anti‑social personality disorder. Presumably this evidence was directed to showing what had moved the appellant to say what he did. For the reasons given earlier, the application of the rule about basal voluntariness neither required nor permitted that kind of inquiry. The relevant inquiry was about whether those who had secured the confession had coerced the appellant; it was not about the appellant's state of mind.
The trial judge concluded[94] that there was no evidence that the will of the accused was overborne and that the prosecution had discharged the onus of demonstrating basal voluntariness. He concluded[95] that the rule about confessions to persons in authority was not engaged because the person to whom the statements were made was not known or believed to be a person in authority.
The appellant's appeal to the Court of Appeal against his conviction on grounds including that the trial judge erred in failing to exclude evidence of the out‑of‑court confessions to the "boss" was dismissed. For the reasons given in respect of the matter of Tofilau, the appeal to this Court should also be dismissed. The statements in issue were not made to a person in authority. They were not made under compulsion. No challenge was made in this Court to the failure to exclude them in exercise of the discretion.

[65]

On the evening of 17 February 2002 a taxi driver picked up this appellant and his girlfriend, Nicole Green, and drove them to the house in Carrum where the appellant, Ms Green, and the appellant's stepbrother, Craig Anthony Reynolds, lived together. After they had arrived at the house, and the appellant had gone in to fetch money to pay the taxi fare, the appellant summoned the taxi driver into the house. Mr Reynolds lay seriously wounded on the floor. Subsequent examination revealed that he had sustained a fracture to the base of the skull consistent with being struck by a blunt object. Mr Reynolds died a few days later.
When first interviewed by police, the appellant described coming upon Mr Reynolds, lying injured. He spoke about what he observed and heard, but said nothing that implicated him in Mr Reynolds suffering the injuries he did. Subsequent investigations by police suggested that the appellant was responsible for Mr Reynolds' death but yielded insufficient evidence to warrant charging the appellant.
Investigating officers asked the Victoria Police Undercover Unit for assistance. Between the middle of June 2002 and 6 August 2002 that unit enacted a series of 19 scenarios in which undercover operatives, posing as members of an organised criminal gang, interacted with the appellant. As in the matters of Tofilau and Marks, emphasis was given to a supposed code of truth, honesty and loyalty between all gang members and the necessity for full disclosure of any past crimes which the police might still be investigating. Again, as in Tofilau and Marks, the culmination of this aspect of the investigation was a meeting between the appellant and a policeman, posing as the "boss" of the gang. The boss spoke to and secured admissions from the appellant about the death of Mr Reynolds.
Again, it is not necessary to describe the scenarios.
At his trial, the appellant formally admitted that he had inflicted the injuries on Mr Reynolds which caused his death. In those circumstances, the central issues at the appellant's trial were whether the prosecution established that the appellant had acted with murderous intent, and whether the prosecution excluded provocation.
The appellant contended that evidence of the admissions he had made to the undercover policeman who had acted the part of the gang's boss should be excluded. He said that these statements were not made voluntarily. Rather, he said, they were made because that was what those with whom he was dealing had wanted to hear, and because, by making up the story he did about his involvement in the death of Mr Reynolds, he would be able to participate in proceeds of crime promised to him by members of the gang.
The trial judge concluded that the appellant was "not in any sense overborne or having his will affected by that which members of the gang said to him or did in his presence". Rather, the trial judge concluded that "at all times the conversation between [the appellant] and either or all of the police undercover operatives was voluntary and made by him in a free exercise of his will to speak or not to speak". He concluded that neither the "boss" nor any of the other undercover police was a person in authority.
On appeal to the Court of Appeal against conviction the appellant's challenges to these conclusions were rejected[96]. The Court of Appeal was correct.
The rules about statements to persons in authority were not engaged. The person to whom the appellant made the admissions was not a person whom he knew or believed could lawfully affect the outcome of the investigation of or any subsequent prosecution for the murder of Mr Reynolds.
The statements which the appellant made were not made under compulsion. Nothing that was said to or done with him constituted compulsion of a kind that would meet the criteria leading to the conclusion that what was said was not said voluntarily. There was no duress or intimidation. There was no importunity, insistence or pressure of a kind exerted by the person to whom the confession was made that would found the conclusion that the appellant had no free choice whether to speak or stay silent. The evidence of what he had said was rightly admitted at his trial.
The appeal to this Court should be dismissed.

[66]

Bonnie Melissa Clarke was aged six years when she died. On the night of 20 December 1982, Bonnie's mother, Marion Wishart, put Bonnie to bed at about 8.30 pm. Next morning she discovered Bonnie, dead in her bed with a stab wound through her chest. She had suffered wounds consistent with her killer attempting to asphyxiate her. She had been sexually assaulted.
The appellant had boarded with Mrs Wishart between January and September 1982. The appellant shared the victim's surname but was not related to her.
In March 2002, almost 20 years after the murder, the Victoria Police Undercover Unit began an operation of the same general kind as the operations considered in the matters of Tofilau, Marks and Hill. During the period when undercover police operatives were engaged in playing out various scenarios designed to demonstrate to the appellant their membership of a successful and powerful gang of criminals, an article was published in a newspaper reporting that DNA testing was being used to solve old murders. The article said that police had recommenced their investigation into the case of Bonnie Clarke. The article said that police believed that the killer may have boarded with the child's family before she was killed, and that they planned to interview at least 14 persons who had rented rooms in the house during the three years before the murder. On the following day, an officer of the homicide squad of the Victoria Police went to the appellant's home, spoke to the appellant's partner, and left his business card indicating that he wanted the appellant to contact him.
Against this background, the appellant spoke to an undercover police operative whom he believed was a member of the criminal gang, and said that he did not know who killed the child but that he had lived at the house for about nine months as a boarder and knew mother and daughter. The police operative told the appellant that the "boss" could "fix" anything and that he had to be provided with the absolute truth. The appellant then denied, and for some time thereafter continued to deny, any involvement in the death of Bonnie Clarke.
In June 2002, the appellant was taken by a gang member to a hotel room to meet the man whom he believed to be the "boss" of the gang. The "boss" emphasised that he had to be able to trust the appellant entirely and explained that the appellant "could not have more police 'heat' on him if he tried". The "boss" produced what appeared to be a three page confidential police report on investigations into the murder of Bonnie Clarke. This was a fabricated document, prepared for the occasion. The document recorded that the appellant was "the only suspect identified by investigators for this crime". It described certain inquiries that were still to be made and said that on completion of those inquiries, approval would be sought from the Director of Public Prosecutions to charge the appellant with the murder.
The appellant's first reaction to the document was to say that "it was an accident that she [Bonnie] died". The "boss" assured the appellant that "I can fix it". The appellant then gave a full description of how it was that he had killed Bonnie Clarke. He described what he did after the killing, and in response to further questions put by the "boss", further elaborated on the manner and circumstances of Bonnie's death.
The conversation in the hotel room finished at about 6.12 pm. By about 7.15 pm the appellant had been arrested and taken to the offices of the Homicide Squad. At 7.45 pm a videotape recorded interview was conducted. In the course of that interview the appellant acknowledged that he had assaulted Bonnie, smothered her, and had probably stabbed her.
At his trial, the appellant submitted that the admissions obtained by the covert police officers should be excluded from evidence, first because the statements had been induced by persons in authority, second because the appellant's will had been overborne, and third because they should be excluded in the exercise of discretion. The trial judge concluded[97] that the covert operative to whom the confession was made was not a person in authority. He further concluded[98] that the appellant had had a choice as to whether he spoke up or did not. (Indeed, the trial judge noted that on the voir dire, the appellant acknowledged that he had had such a choice[99].) In relation to the discretion to exclude the evidence, the trial judge concluded[100] that "on balance ... the means adopted by the covert operatives to elicit the admissions were [not] disproportionate to the purpose, particularly when one considers the seriousness of the crime under investigation". The trial judge further concluded[101] that any forensic disadvantage to the appellant otherwise occasioned by admitting the evidence could be overcome. More generally, the trial judge concluded[102] that "despite some concerns, the conduct of the covert operatives did not cross the line of acceptable conduct and that the admissions made to [one of the covert operatives] on 6 June 2002 should be admitted into evidence so as to enable the jury to assess their probative value". One factor which weighed in the trial judge's conclusions in this last regard was that he considered that the appellant had joined in the criminal activity fabricated by the undercover operatives of his own free will and "with some enthusiasm"[103].
On the issues of "person in authority" and "basal voluntariness", what has been said in relation to the previous matters applies equally to this matter. The statements in issue were not made to a person in authority. The statements were not coerced; they were made voluntarily.
In the Court of Appeal, the discretionary questions considered at trial were agitated by reference to three propositions: first, that the statements were made in circumstances that rendered them inherently unreliable and calculated to elicit an untrue admission of guilt. Secondly, it was submitted that the circumstances in which the statements were made must inevitably have caused the appellant to suffer forensic disadvantage because they involved the implication that he had "serious criminal propensities". Thirdly, the admission of the evidence was said to be "both unfair and contrary to public policy". Each of these propositions was rejected by the Court of Appeal.
In this Court, the appellant's argument on the discretionary questions emphasised what he identified as the "pressure" placed on him by the covert operative playing the role of the "boss" to confess to the crime. In addition, it was said that the scenario evidence inevitably revealed that the appellant was willing to participate in criminal activity and that revealing that willingness to the jury placed him at a serious forensic disadvantage.
The respondent asserted, and the appellant denied, that the appeal against the trial judge's decision not to exercise the discretion to exclude the evidence was to be decided according to the familiar principles stated in House v The King[104]. Once it is noticed that the discretion which is to be exercised is, as was said in McDermott[105], to be exercised even if "the strict rules of law, common law and statutory," do not require rejection of the evidence, it follows that the respondent's submission should be accepted. The trial judge is to exercise a discretion. That discretion is to be exercised according to principle. The question on appeal is whether the exercise of the discretion miscarried because the judge "acts upon a wrong principle, ... allows extraneous or irrelevant matters to guide or affect him, ... mistakes the facts, [or] does not take into account some material consideration"[106]. (Because the decision will ordinarily be supported by reasons, it is to be assumed that the residual category of cases identified in House, where it does not appear how the primary judge reached the result embodied in the order but the result embodied is, upon the facts, unreasonable or plainly unjust, would rarely fall for consideration.)
A number of matters may affect the exercise of the discretion to exclude evidence of a confession which otherwise is admissible. So much is evident from what is said in Swaffield. But as noted earlier in these reasons, by reference to the decisions in Lee[107] and Cleland[108], the chief focus of the discretionary questions that arise remains upon the fairness of using the accused person's out‑of‑court statement, rather than upon the method of obtaining it. To the extent to which questions of disciplining police or controlling investigative methods are said to be relevant, proper weight must be given to the seriousness of the crime being investigated. Such considerations are relevant to the exercise of the discretion to exclude illegally obtained evidence[109]. The relevance of the seriousness of the crime being investigated can be no less when considering the exercise of a discretion to exclude evidence that has not been unlawfully obtained.
In the present matter, the appellant sought to describe the methods employed by investigating police as "improper". That description was given colour and, perhaps, some content, by reference to the playing out of what appeared to be serious criminal activity. But in fact, no crime was committed in the course of the various scenarios conducted by the covert police operatives. The "impropriety" to which the appellant pointed was, in the end, said to lie in the "pressure" that had been applied to him. That "pressure" was constituted by creating in his mind the belief that the only way he could avoid being charged with and convicted of the murder of Bonnie Clarke was to tell the "boss" that he had done it.
In the present case there was no reason to doubt the reliability of what the appellant told the "boss". He repeated essentially the same account of events surrounding the death of Bonnie Clarke when he was interviewed formally by the Homicide Squad officers very soon after he had said what he did to the "boss". But leaving this consideration to one side, and confining attention wholly to what was said to the covert police operatives, it was open to the trial judge to conclude, as he did, that the circumstances were not such as to warrant excluding the confession from consideration by the jury. The trial judge considered the significance to be attached to the appellant's participation in the various criminal scenarios that were played out. He concluded that the evidence of those activities did not present forensic difficulties of a kind that required exclusion of the evidence. That conclusion was open.
It was not shown that the trial judge acted upon any wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts or failed to take into account some material consideration. It was not shown that the exercise of the discretion miscarried.
The appeal should be dismissed.
KIRBY J. Four appeals are before this Court. Each challenges the conviction of the appellant of murder. In each trial, the judge admitted prosecution evidence given by undercover police officers. In each case, those police officers gave evidence, over the accused's objection, of confessional statements made to them by the accused in the course of dealings with the officers who were acting out "scenarios". Such "scenarios" were carefully pre-planned and followed a technique known as the "Canadian model"[110]. During an early stage in the proceedings in Victoria in one of the four matters, the Chief Commissioner of Police (Vic) sought to suppress the publication of details of the "scenario technique". This Court, like Canadian courts before it[111], declined to provide the suppression order sought[112].
The "scenario" technique used in the cases varied from one instance to the other. The following description accurately captures the main ingredients[113]:

[70]

By these appeals, the four appellants contest the admissibility of the evidence procured by variations on the foregoing "scenario techniques". Each of their cases arose in Victoria. Although it has been suggested that Victoria should adopt the reformed Uniform Evidence Act[115], the common law (with its different approach to the issues argued in this appeal[116]) continues to be applicable.[117] However, in one relevant respect, the common law is modified by a provision of the Evidence Act 1958 (Vic)[118] ("the Evidence Act") upon which the prosecution relied.
It follows that, whilst in many jurisdictions the law governing the type of issues presented by these appeals has moved towards detailed statutory regulation, these appeals require a belated exploration of common law rules. As this Court pointed out in R v Swaffield[119], the common law with respect to the admissibility of confessional evidence has followed a meandering history. It is one that has responded to the changing organisation and functions of police services; changing practices and technologies affecting the investigation and prosecution of crime; changing provisions for criminal appeals designed to prevent miscarriages of justice[120]; and changing "social attitudes" and "social realities" observed by the courts[121].
In an attempt to impose a measure of conceptual order on the many earlier developments of the common law, this Court, in Swaffield, derived from past decisions a series of tests to be applied before disputed confessional evidence is admitted. Over time, the tests have been formulated in different terms, and it is clear that they overlap and reinforce one another to a significant extent. The first of the tests, voluntariness, arises from "the fundamental requirement of the common law that a confessional statement must be voluntary, that is, 'made in the exercise of a free choice to speak or be silent'"[122]. Another test, sometimes subsumed in voluntariness, requires that the evidence should be judged reliable[123]. A third test (policy exclusion) concerns unfairness to the accused[124] and other grounds for the rejection of confessional evidence (even where given voluntarily and reliable) in the exercise of judicial discretion[125].
In the present appeals, all of the appellants invoked the rule of voluntariness. All of them did so by reference to the particular aspect of the voluntariness rule requiring the exclusion of evidence of confessional statements made to "persons in authority" as a result of an "inducement", being a threat or promise of favour or advantage ("the inducement rule"). That this is an established sub-category of the common law voluntariness rule in Australia was not contested during the argument.
Additionally, all of the appellants relied more generally on so-called "basal involuntariness"[126]. I dislike the adjective "basal" for it adds nothing to the critical concept of "voluntariness"[127]. However, it tends to be used to refer to those elements of the voluntariness rule concerned with the exercise of the free will of a person who is suspected of a criminal offence, either to remain silent or to make confessional statements to police, prosecutors or other persons.
In Swaffield, the arguments before this Court were not presented by reference to the voluntariness rule in any of its forms. This was so notwithstanding the fact that "voluntariness is a flexible principle" and that some dicta existed suggesting that "involuntariness might extend to 'false representations or other trickery'". Such considerations were arguably relevant to the circumstances both of Mr Swaffield's case and the conjoined appeal of Mr Steven Pavic[128]. By way of contrast, in the present appeals, the voluntariness and "basal voluntariness" of the confessional statements constituted the centrepiece of each appellant's contentions[129].
None of the appellants sought to contest the admissibility of the statements made by them on the basis of the reliability test. Most did not rely on the discretionary ground for exclusion of the confessional evidence. Only one (Mr Malcolm Clarke) invoked the judicial discretion, appealing in his case to considerations of alleged unfairness and public policy to support the exclusion of the contested statements.

[71]

A new problem: It follows from the foregoing introduction that these appeals present a new problem for this Court's resolution. Because voluntariness was not argued in Swaffield, the outcome of each appeal is not supplied simply by applying what was held in that case and in Pavic. This is so despite the fact that there are some factual features that all of the cases have in common (undercover police officers recording confessional evidence obtained by interrogation and elicitation following official conduct deliberately designed to mislead the accused).
Only in Mr Clarke's appeal, in so far as it invokes the policy discretion as a fall-back if the voluntariness test is unavailing, are the reasons in Swaffield of direct application. Nevertheless, because under the discretionary grounds of exclusion, Messrs Swaffield and Pavic argued objections to the admissibility of evidence procured by elicitation, questioning, deception and trickery, some of the observations of the Court in Swaffield may, by analogy, be relevant to evaluating the appellants' submissions concerning "basal voluntariness".
The history of the common law, and the development of its responses to the perceived dangers of confessional evidence, is traced in the reasons of Callinan, Heydon and Crennan JJ ("the joint reasons")[130]. Those reasons demonstrate the manner in which, over time, the common law principles have expanded, contracted, refocused and changed in response to the perception of new problems arising within changing institutional settings and to reflect different social and judicial attitudes[131].
When a new problem such as "scenario evidence" arises for evaluation under the common law it is a serious mistake to assume that the answers are to be given by simply plucking out of the casebooks passages from judicial reasoning addressed to different problems considered long ago, before "scenario techniques" were dreamed of.
I agree with the joint reasons that the attempt by the appellants, when advancing their arguments concerning the ambit of those who are in "lawful authority" (for the purpose of the inducement sub-category of the voluntariness rule) to treat remarks of Wood J in R v Dixon[132] as if they were legally definitive in their appeals, is erroneous. As the joint reasons remark, the problem raised by the facts addressed by Wood J in that case was "completely different" from the problem now presented by these appeals[133]. However, I would go further and in the same vein. Most of the judicial remarks addressed to the inducement rule, collected in the joint reasons[134] (save perhaps for those contained in recent Canadian authority specifically addressed to "scenario evidence"[135]), have to be read with considerable care and used with discernment. Otherwise, the risk is run that later judges select words written by earlier judges to address significantly different problems, in order to extract from those words a congenial rule that offers a resolution of new issues presented by relevantly different circumstances.
Taken literally, the words used by Wood J in Dixon are broad enough to include, as "persons in authority", the undercover police officers who dealt with the appellants in these "scenarios". If this were so, without more, Wood J's test would attract the inducement rule in each of the present appeals and support the appellants' common argument that their confessional statements should be excluded from the record.
However, just as Wood J's words cannot be treated as though expressed in a statute of universal application, so the observations of Wood B and his judicial colleagues in R v Row[136] nearly two hundred years earlier have, in my view, only marginal relevance to the novel problem now presented. The law's treatment of an admonition of a neighbour to tell the truth in the setting of England at the time when Row was decided will cast no more than the remotest light upon the contemporary problem which this Court now faces.
Given the nature of the common law, it is essential to provide responses to the appellants' submissions in a manner that proceeds by analogical reasoning from judicial opinions expressed in past decisions. However, such reasoning is more likely to be useful and convincing if it draws on cases bearing some approximate factual similarity to the present ones. As "scenario evidence" constitutes a new development in policing, it requires that courts examine closely any decisions concerned with the new technique. It obliges them to confine the use of earlier cases, addressing quite different facts, to determining the purpose and objective which courts have there held to be reflected in basic common law doctrine. Any attempt at a more specific use of earlier judicial dicta runs the risk identified by the joint reasons in their criticism of the appellants' invocation of R v Dixon. That is the risk of deploying judicial language, written in earlier times for different purposes, to the significantly different circumstances of the present case. This Court should be more discerning in eliciting the applicable legal principle.
A cautious response to confessions: One thread of basic common law doctrine runs through the authorities back to the 18th century and before. It demands a serious approach of caution to "confessions under threats or promises"[137]. That phrase, in all of its generality, is the one that Lord Mansfield CJ used when addressing himself to the danger of reliance on words "forced from the mind by the flattery of hope, or by the torture of fear"[138].
The general language used by Lord Mansfield CJ was not cut back by reference to the status, ostensible authority or lawful power of those who procured, and later repeated, the confessional statements. The apprehended danger arose from the operation of hope and fear on the mind of the suspect[139]. This is where the inducement rule began. It is as well to keep the attitudinal caution of the common law in mind when attempts are made to restrict the operation of the inducement rule, so that it applies in limited circumstances or to limited relationships.
The danger of false, misleading, blustering, hypothetical or mistaken confessional evidence is no less present today than it was when Blackstone described that form of testimony as "the weakest and most suspicious of all"[140]. Any analogical development of common law principles to apply to new factual circumstances will remain true to the approach that lies at the core of the common law rule. Parliament may alter that rule in fundamental respects as it chooses. Judges, applying analogical reasoning, may not do so.
Not long ago, in Mallard v The Queen[141], this Court corrected an earlier refusal of special leave to appeal[142] to a long-term prisoner convicted of murder. It set aside an accused's conviction which had been based, substantially, on confessional evidence. Later and more detailed scrutiny by the Court showed that the confession, which had convinced a jury and many earlier appellate judges, was insubstantial, misleading and factually impossible to reconcile with other objective evidence. Mallard (along with many other cases before it, and doubtless others yet to come) reinforces the wisdom of the common law's insistence on taking great care to ensure that confessional evidence is voluntary and reliable, and was not collected in circumstances justifying exclusion on discretionary grounds. These may be old rules. But they have lost none of their modern relevance and applicability.
In considering the rule of voluntariness, and specifically the sub-rule governing the inducement of confessional evidence by persons in authority in the context of "scenario evidence", this Court should maintain the longstanding caution of the common law about confessional evidence. It should express the governing legal rule with this caution in mind.
To the extent that the law demands that the recipient of a confession must not only in fact be a "person in authority" (such as a police officer or prosecutor), but must be known to be such by the suspect and must have, and be known to have, lawful power to influence the course of criminal proceedings, the ambit of the protection of the inducement rule is obviously diminished. Its capacity to restrain the use of confessional evidence that is "involuntary", in the sense of being affected by a relevant hope or fear, is reduced. Very good reasons would be needed to confine the inducement rule in such a way.

[72]

Reasons of principle and policy: As in other cases where there is no precisely applicable provision of the Constitution nor legislation governing the point in controversy, and where no holding of this Court affords a clear and binding rule that can be applied to resolve the differences in argument, the solution to the contentions of the parties in the present appeals must be found in the usual sources. What is required is a close examination of relevant legal authority, principle and policy[143].
The parties argued for the outcomes which they respectively favoured substantially by reference to judicial dicta in earlier decisions of this and other courts concerned with voluntariness, the inducement rule and the judicial discretion to exclude confessional evidence. I will address shortly the arguments on the legal authorities. However, first it is useful to identify some important considerations of legal principle and policy. Such considerations provide a relevant background so as to ensure that evaluation of the authorities proceeds in a manner apposite to the novel problems that "scenario evidence" raises. Correctly, in my view, these considerations, or some of them, were adverted to below, both at trial[144] and on appeal[145].
Reference to these background considerations is not intended to merge concerns of public policy into the resolution of the voluntariness issue. Such concerns are more properly to be taken into account in the context of the third, discretionary, ground for the exclusion of confessional evidence. As noted above, that ground is here relevant only to the appeal of Mr Clarke. Nevertheless, reference to the background considerations is appropriate at this stage to provide a transparent foundation for the resolution of the parties' arguments concerning voluntariness in the present factual context.
As noted above, the various common law bases for the exclusion of confessional evidence overlap with one another. Thus, a common explanation of the law's general hostility to involuntary confessions in earlier times was the proneness of such confessions to be unreliable. Yet this is not now generally seen as the sole justification for the voluntariness rule in either of its manifestations[146]. Other considerations (including respect for the basic rights of an accused and discouragement of undesirable conduct by police and other public officials) supplement explanations of voluntariness focusing on reliability.
Likewise, considerations that inform decisions about "basal voluntariness" may overlap those relevant to the exercise of the judicial discretion to exclude even confessional evidence considered to have been given voluntarily and to be reliable. When facing a new evidentiary problem, such as the present, it is more likely that the correct ambit of the applicable categories, and their accurate application to the circumstances of the case, will follow from a candid acknowledgment of the most important factors of legal principle and policy that will be in the mind of a court when deciding such questions.
Considerations favouring admissibility: The following considerations of legal principle or policy tend to favour the admissibility of the confessional evidence gathered by the "scenario techniques" to which the appellants object in these appeals:

[93]

Understanding the appeals: Having now described the background of policy and principle against which the particular requirements of the common law in the present context are to be elicited, it is necessary to add some detail to the skeletal description of the facts of each appeal contained in the reasons of Gummow and Hayne JJ[168], and in the joint reasons[169]. Only if some additional facts are mentioned will the force of the appellants' several submissions in relation to the voluntariness rule be fully understood.
The appeal of Tofilau: So far as Mr Tofilau's appeal is concerned, the confessional statements in question were considered in a voir dire in which three undercover police officers, as well as their "controller" gave sworn evidence. The "controller" testified that he coordinated, supervised and planned the operation, the purpose of which was to make the suspect "feel comfortable about talking about his involvement in the crime".
Mr Tofilau was told that "Mark Butcher" and "Tui Brown" were able to "organise things" with "Corey", identified as a corrupt member of the Drug Squad who provided assistance to the "gang". He was led to believe that the police investigation of him, in respect of his involvement in the death of Belinda Romeo, would be made to conclude, being halted by the corrupt officer pursuant to a request by "Butcher" to that effect. Mr Tofilau would then be neither subject to further police attention or investigation in relation to the death of Ms Romeo, nor charged with any offence in respect of that death. He would also be given access to $10,000 from a safe deposit box. He would be admitted into the "gang" as one of its members.
The trial judge accepted that Mr Tofilau was "completely deceived" by the operation, and that he believed that the superiors in the gang had the capacity to "fix things with the police"[170]; and also that he was "exhorted" and "harangued" to make a confession[171]. The statements made to Mr Tofilau contained implied threats as to the potential dangers of further attention from the police and other distinct disadvantages if he did not tell the "truth" to the boss of the gang[172]. The trial judge accepted that the confessional statements were elicited from Mr Tofilau in what was the "functional equivalent" of a police interrogation[173] and that he was "manipulated" by the undercover agents to bring about a mental state in which he was likely to confess to a crime[174]. Nevertheless, the trial judge rejected the submission that the statements were involuntary. He admitted them into evidence.[175] His ruling was upheld by the Court of Appeal.
The appeal of Marks: Mr Matthew Marks was tried before Coldrey J and a jury where similar evidence was adduced on a voir dire. At the conclusion of the hearing his Honour ruled that the prosecution could lead the confessional statements in evidence at the trial[176].
The general background to Mr Marks's case is set out in other reasons[177]. However, those reasons do not explain the way in which it was represented to Mr Marks, by the undercover police officer with whom he principally dealt ("Rick Baxter"), that the head of the gang ("Gary Butcher") had influence over a corrupt police officer ("Royce") who could "fix up" any "drama" with the police. Such influence extended to the matter in which Mr Marks was being investigated by the homicide squad. "Baxter" represented to Mr Marks that "Butcher" could make things of concern to him (including evidence) "disappear".
Mr Marks was later told by "Butcher" that word had come from police that he was a suspect in a murder investigation, and that "Butcher" wanted to know what the problem was so that an alibi witness could be found or evidence made to disappear.
The trial judge, in his ruling, concluded that Mr Marks was subjected to "a massive and elaborate subterfuge" and "a degree of manipulation and exploitation"[178]. He also found that Mr Marks's confession was "the result of various inducements" made to him by members of the gang who were, in fact, police officers.[179] He nevertheless admitted the evidence in the trial[180]. His ruling was upheld on appeal by the Court of Appeal.
The appeal of Hill: Mr Hill was arraigned before Bongiorno J and a jury. A ruling was made upholding the admissibility of the confessional evidence in his case. That ruling was upheld by the Court of Appeal[181]. The background facts are stated in other reasons[182]. However, those reasons do not explain the inducements that were held out to Mr Hill.
On 19 separate occasions Mr Hill met an undercover police officer whom he knew as "Pat Austinn". He was led to believe, and did believe, that "Austinn" was a member of a criminal gang. "Austinn" introduced Mr Hill to "Mark Butcher", identified as the head of the gang who had contacts with and influence over a corrupt police officer. Mr Hill was informed that the matter in which he was being investigated by police (a murder) was something the gang "could take care of if he passed the checks". He was told that "good … money" was paid by the gang to police to ensure that they could "fix" any problem. The undercover operation culminated in a meeting between Mr Hill and "Butcher" in which the former admitted to attacking the deceased with a house brick, but at first denied being responsible for leaving him in the condition in which he was later found. This denial led to an indication that there could be a "problem" because "Butcher" did not believe Mr Hill, whereupon Mr Hill revised his account somewhat. "Butcher" continued to press Mr Hill as to certain details, but the latter averred that his revised account was "the … honest truth". "Butcher" accepted this and represented that he wanted to "sort it out".
The trial judge found that the undercover police had made it clear to Mr Hill that untruthful denials might jeopardise the criminal activities of the "gang". However, he found that the representations made to Mr Hill were not an "inducement" nor were "Austinn" or "Butcher" to be treated as "persons in authority". For this latter ruling, he relied on the approach adopted by Osborn J in Tofilau. The confessional evidence was admitted. The Court of Appeal accepted that it had been made "as a result of persistent questioning by [the] undercover operatives"[183]. However, the trial judge's ruling on the evidence was upheld.
The appeal of Clarke: The same pattern of events was disclosed in the trial of Mr Clarke before Kellam J and a jury. A voir dire was conducted. This showed that, during a conversation between Mr Clarke and two undercover police officers ("Terry Batchelor" and "Mark Cassidy") posing as members of a criminal gang, one produced a fictitious document (described as a "prop") apparently emanating from Victoria Police. It purported to disclose that Mr Clarke was the only suspect in the crime of murder of the deceased. It also stated that a circumstantial case against Mr Clarke had been developed. On further inquiries being made, approval was to be sought from the Director of Public Prosecutions to charge Mr Clarke with murder. The "prop" lent an air of authenticity to the claim of "Batchelor" and "Cassidy" to speak with authority concerning the favourable internal consideration of Mr Clarke's case within Victoria Police. It gave the appearance that gang members had the power to influence police or prosecution decisions affecting Mr Clarke.
Evidence was given by the "controller" of the covert operation. He agreed that the intention was to lead Mr Clarke to believe that "Cassidy" was the "boss" of a powerful and violent criminal organisation and had the ability to control corrupt police, who did favours for the criminal gang. Mr Clarke was led to believe that problems could be fixed if he were to confess to the killing of the deceased. At one stage Mr Clarke was told by "Cassidy", "now if you say to me I didn't do this I can't fix it".
Despite these pressures Mr Clarke continued for some time to deny involvement in the death of the deceased. "Cassidy" told him that he did not believe him and that it was Mr Clarke's "one and only chance". The message could not have been more blunt. That was the point at which the "prop" was produced, with "Cassidy" saying to Mr Clarke: "What do you want to do about it? Because I'm telling ya this is not going to go away. You can deny it 'til the cows come home. I can't have you hanging around with us." Evidence suggested that, at this time in his life, Mr Clarke was specially vulnerable because he was hoping to get married.
The trial judge admitted the confessional statements procured following the foregoing exchange as voluntary[184]. The Court of Appeal upheld that decision[185].
Common features of the appeals: The common features of the evidence in the four appeals, relevant to the issues of voluntariness are:

[103]

Persons in authority: Although, in Hill, Bongiorno J concluded that the various statements made by the undercover police agents did not amount to "inducements"[188], I would not accept that conclusion, given the purposes of the inducement rule.
The inducement rule is addressed to statements and conduct of "persons in authority" that are designed to operate on the mind and will of a person suspected of criminal wrong-doing. The question which the rule raises is whether such statements or conduct caused a suspect to make a confession or admission against his or her own interest. In the relevant sense, it is apparent that the repeated, insistent statements made by the undercover agents to each of the appellants comprised "inducements". The substantial issue in these appeals is whether, for the purposes of the inducement rule, the undercover police were "persons in authority", as that term is used in the present context.
I am indebted to the joint reasons for their helpful survey of the history of the inducement rule[189], and specifically of the "person in authority" requirement[190]. Those reasons have identified various bases that have been advanced, long before the present problem presented, for the existence of both the rule and the requirement.
In numerous cases it has been held that "persons in authority" include police officers, prosecutors and other like officials. Indeed, wider categories of such persons have been recognised. However, it is not necessary in these appeals to consider that feature of the rule. The undercover agents who procured the confessions relied on by the prosecution from each of the appellants were indisputably police officers. To that extent, they were in fact "persons in authority". The question for decision is whether the law requires an accused, later complaining of inducement, to have known that the persons making the inducement were themselves such persons. Specifically:

Is it sufficient that the persons who make the inducement are in fact persons in authority, although that fact is unknown to the suspect and only subsequently revealed?
Is it sufficient that the suspect knows or believes that the persons making the inducement have effective control over persons in authority who can influence the course of a criminal prosecution against the suspect?
Is it essential that the "persons in authority" have, and are known or believed to have, lawful power to control or influence the course of a criminal prosecution of the suspect[191]?

None of these issues has hitherto been decided by this Court. Overseas judicial authority is of limited persuasive power because of the broader view that has been taken in Australia of "basal voluntariness". It is against this background that I approach the foregoing questions. I agree with the joint reasons that they are not to be answered by treating the words of selected earlier judicial reasons as if they presented a statutory formulation yielding the solution[192]. Much safer is the derivation of the ambit of the inducement rule by reference to its basic purpose as a species of the cautious response of the common law to confessional evidence in general, and in particular where that evidence is the product of statements and representations by a public official playing on the suspect's hopes and fears.
Functional analysis of the rule: I accept, as the joint reasons have demonstrated, that judicial authority may be found to support the arguments advanced in these appeals both for the appellants and for the prosecution. Because the joint reasons outline this authority most thoroughly, I will not deal with it in these reasons.
This Court must choose an expression of the rule, applicable to these cases, that not only best represents a proper extension by analogy of the common law that has previously existed in Australia, but also most effectively upholds the purpose for which the limitation on the admissibility of confessional statements made to "persons in authority" exists. That purpose takes this Court back to the context of the rule (upholding the voluntariness of confessional statements generally) and the object of the particular sub-category of the rule (addressing the capacity of people with access to the levers of power and decision-making over criminal proceedings to influence "by promises of favour"[193] both the decision to make a confessional statement and its contents).
These two considerations (context and purpose) lend force to the appellants' submission that the requirement that the "inducement" be made by a "person in authority" is satisfied in cases such as the present. Specifically, it is satisfied if the persons making the inducement were in fact (as all of the undercover police officers were here) "persons in authority", and if those persons represented themselves to be (and were believed by the suspect to be) persons with authority and power to influence the course of a criminal prosecution against the suspect. The coincidence of these factual elements tends to overbear the will of the suspect and his or her interest and entitlement to be silent, and to induce him or her to make damaging, inculpating statements against interest. It is this feature of the "inducement" that attracts the inducement rule.
To limit the class of "persons in authority" to those whom an accused knows or believes to have lawful authority makes no sense if the reason for the rule is to discourage officials from exploiting hope or fear to procure confessional statements from suspects against their own interest. There is no point to requiring that the person in authority must act, and be believed to act, in a lawful way. By definition, any public official, with relevant power, who represents to a suspect that power over a criminal prosecution will be used in a manner favourable to that suspect is, regardless of the strict legal merit of the representation, acting unlawfully. No public official - police officer, prosecutor or otherwise - may utilise such powers in any way alien to the purposes for which those powers are afforded to them by law.

[106]

Because of the respect owed to the Canadian Court, because of the similarity of the applicable common law and because the "scenario techniques" here in issue originated in Canada, it is proper to pay considerable attention to that Court's holding on this subject. Undoubtedly, it supports the decisions of the courts below. If correct, it is fatal to the appellants' submissions on the inducement rule.
For a number of reasons, however, I am unpersuaded by the Supreme Court's exposition. First, as already stated, the Australian common law on voluntariness (of which the inducement rule is a sub-category), has developed differently to, and more broadly than, its overseas counterparts. Especially because of the gradual acceptance of the Uniform Evidence Acts in Australia, any elaboration of the common law on this topic should not depart from the previous approach in this country. It should maintain the comparative strictness of the remaining categories of cases to which the common law continues to apply.
Secondly, some of the passages in the reasons of the Supreme Court of Canada in Grandinetti, immediately before and after the paragraph just cited, indicate peculiarities of the Canadian law that make a literal borrowing of the stated rationale for defining "person in authority" somewhat unsafe. Just prior to the paragraph excerpted above, Abella J cites an additional passage from Cory J's reasons in Hodgson explaining that the "person in authority" requirement is "appropriate since most criminal investigations are undertaken by the state, and it is then that an accused is most vulnerable to state coercion[200]". However, "state coercion" and the "uniquely coercive power of the state" can be brought to bear on the will of a suspect not only by those who are known to be public officials but also by those who appear to control the levers of state power, although apparently holding no state office themselves. Moreover, immediately following the cited passage, Abella J goes on to refer to the "filter" available in Canada under the Canadian Charter of Rights and Freedoms. The Charter operates to prevent the admission of statements that "undermine the integrity of the judicial process"[201]. This "filter" has no precise equivalent in Australia. Any Australian common law rule must be fashioned without the benefit of access to such a "filter".
Preferred analysis of Grandinetti: For the purpose of deriving the Australian common law rule, the reasoning in the Alberta Court of Appeal of Conrad JA, in dissent, when Grandinetti was in that Court[202], is in my opinion both correct and compelling. In her reasons, Conrad JA concluded that the trial judge in that case had interpreted the meaning of "person in authority" too narrowly. She said[203]:

[111]

The foregoing explanation provides what I regard as a functional, as distinct from a purely historical or verbal, approach to the inducement rule. The function of the rule is to prevent people who are in fact public officials, and are believed by the suspect to have power over the bringing of a criminal prosecution, using their power to instil the type of fear or hope which for centuries has been the source of the common law's caution about the reception of confessional statements by suspects.
Conclusion: breach of inducement rule: Applying that approach, as I would, to the present appeals, the undercover officers involved were in fact unquestionably persons with authority. Moreover, they were believed by each of the appellants to be such because of the representations which they repeatedly made about their special capacity to control the initiation or termination of criminal investigations and prosecutions against the appellants. Any other approach to the resolution of the "persons in authority" issue in these cases would be formulaic. It would be concerned with the form rather than the substance of the common law rule. Such an approach would fail to carry forward the purpose of the rule as a sub-category of the common law's insistence on the voluntariness of confessions made to persons in authority, so defined.
All of the confessional statements in issue in these appeals were profoundly influenced by the repeated inducements offered to each of the appellants so as to oblige them to make confessions in order to join the criminal "gangs" and have things "fixed up" by police officers who were under their effective control. These were classic instances of "hope" and "fear" inducing the appellants' several confessions. The circumstances were thus within the inducement rule.
Subject to what follows, each of the confessional statements was therefore liable to exclusion from evidence on this ground. The trial judges and the Court of Appeal erred in law in concluding otherwise. No question of discretionary leeway arises. The legal error common to the decisions was an overly narrow conception of the "person in authority" requirement of the inducement rule in the Australian common law of evidence.

[112]

An additional pathway: Because the foregoing conclusion is sufficient to entitle each of the appellants to succeed in his argument about the suggested involuntariness of his confessional statements, it is unnecessary for me to state at length an alternative pathway that leads to the same conclusion by way of the application of "basal voluntariness". However, for a number of reasons it is appropriate to address that argument.
At common law, the prosecution bears the burden of proving, on the balance of probabilities, that confessional statements upon which it seeks to rely have been made voluntarily[205]. This common law requirement is preserved by statute in Victoria[206]. As an alternative to reliance on the inducement rule, each of the appellants invoked "basal involuntariness". They did so on the footing that the confessional statements tendered by the prosecution were, in each case, induced by trickery, deception, sustained pressure and repeated interrogation which they characterised as sophisticated, elaborate, extreme, persistent and destructive of their independent will.
The appellants argued that the inducements held out by the undercover police officers were so substantial that they effectively deprived them of the free choice, otherwise enjoyed in law, whether to make or withhold confessional statements to persons who were police officers.
In this respect, each of the appellants challenged the conclusion of the trial judges, confirmed by the Court of Appeal, to the effect that their confessional statements were the result of their own volition. Even if the undercover police were not "persons in authority" (and thus subject to the inducement rule), the appellants submitted that their will had been overwhelmed by the conduct of persons who were in fact agents of the state and who set out to subject them to a barrage of psychological pressure, lies, manipulation, exploitation and inducements.
The appellants invoked the fundamental or "basal" requirement for the admissibility of confessional evidence at common law in Australia, namely that "a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made"[207]. As the relevant authorities concerning this aspect of voluntariness are set out in the reasons of Gummow and Hayne JJ[208], I will not repeat them. It is sufficient for me to incorporate them by reference.
Can it be said that each of the appellants, by a voluntary exercise of his own free will, chose to respond (where he did not have to do so) to the insistent importuning of the undercover operatives, whom they believed to be their friends, to "tell the truth"? For the purpose of the principles of "basal voluntariness", were the conversations between the respective appellants and "the bosses" of the criminal "gangs" that they wished to join nothing more than free dialogues, in which self-incriminating admissions were all the more plausible because made in circumstances lacking any perceived official pressure?
I find that view of the conversations a serious mischaracterisation of the exchanges that actually took place. As described earlier in these reasons, in every instance, the confessions were motivated by a combination of purposes. However, in accordance with the build-up of fear, which the "scenarios" were designed to produce, and in the hope of securing the promised assistance of pretended corrupt police officers, the appellants, and each of them, cannot in my view be said to have freely chosen to make the confessional statements that they did. Least of all did they freely do so for the purpose of enabling the later use of those confessional statements in their respective trials for murder as damaging (even possibly decisive) testimony against themselves.
The relevance of Swaffield: Although Swaffield was not a case in which the parties argued questions of voluntariness, some of the remarks made in this Court in that case are apt to an understanding of the purposes of "basal voluntariness", as it exists in the context of the administration of criminal justice as practised in this country.
In the joint reasons in Swaffield[209], reference was made by Toohey, Gaudron and Gummow JJ to an earlier decision of the Supreme Court of Canada in R v Hebert[210]. Whilst cautioning about the use of Canadian authority, given the intervention of the Charter, the joint reasons in Swaffield cite the majority's observations in Hebert in relation to the "right to silence", which is the time-honoured antonym to the making of self-incriminating confessional statements[211]. As the joint reasons in Swaffield point out, McLachlin J drew a distinction between "observing a suspect and actively eliciting information in violation of the suspect's choice to remain silent"[212]. They quote the following passage[213]:

[128]

Subject to the Constitution[226], it was open to the Victorian Parliament to legislate in respect of the police practices the subject of these appeals. Following this Court's decision in Ridgeway[227], amendments were enacted to federal law to regulate controlled operations by police and customs agents. The Federal Parliament passed the Measures to Combat Serious and Organised Crime Act 2001 (Cth)[228]. Where such legislation is enacted, it ordinarily includes independent checks against misuse of official power; defined limits on derogations from the normal rights of suspects; assurances to facilitate scrutiny of the means adopted by officials; and protections for innocent persons caught up in an operation. No such legislation was enacted by the Victorian Parliament to authorise and regulate state police covert operations utilising "scenario techniques" such as were deployed in each of the present cases.
This Court should not authorise such operations as within the common law where they derogate so seriously from basic individual common law rights which it is normally the province of courts to defend and uphold. Recent Australian experience suggests that, if police can demonstrate a need for enhanced legislative powers, parliaments have not been slow in enacting them. This is the way to preserve the rule of law. It is not by bending basic principles of voluntariness to allow the reception of confessional statements containing damning self-incrimination induced by trickery and deception on the part of public officials. Least of all should departures from permissible police conduct which override and ignore a suspect's "right to silence" be justified ex post facto on the ground that "prevailing community standards would not support the exclusion of the confessional statements"[229].
Doubtless, "community standards" may inform the content of the common law as expressed by the judges. However, in matters such as the present, it would be a mistake to enlist supposed "community standards" to condone departure by police officers from the basic rights of those suspected of crimes. Often it is the judges alone who will safeguard those basic rights. Elected officials, journalists and community groups sometimes prove to be no more than fair weather friends to basic legal principles and the rule of law. But it is in defending them that courts like this are put to the test.

[137]

The trial. After a trial before the Supreme Court of Victoria (Osborn J and a jury), on 16 October 2003 Lemaluofuifatu Alipapa Tofilau ("Tofilau") was convicted of murdering Belinda Loree Romeo on 20 June 1999. She had been strangled. She had had a sexual relationship with him for the previous three months.
Preliminary investigation. Tofilau gave a statement to police on 14 July 1999. He was interviewed by detectives on 29 July 1999. He made no admissions of involvement in the killing.
Use of scenarios. From December 2001 the police carried out an undercover operation in which particular officers posed as members of a criminal gang. At a meeting on 17 March 2002 an undercover officer told Tofilau that he did not believe what he had earlier said about the death of Belinda Romeo and that he believed that Tofilau had killed her. That officer exhorted Tofilau to confess, and Tofilau proceeded to admit the strangling. This meeting was audio taped.
The undercover officer then took Tofilau to the purported head of the gang. The purported head told Tofilau he needed to know all relevant details if he were to fix things with the police, and he interrogated Tofilau about them. Tofilau made extensive admissions which were videotaped.
On 18 March 2002 Tofilau made admissions in a record of interview conducted by persons known to him to be police officers. He confirmed that he had made statements to the undercover officers about strangling the deceased. Initially he said they were true, but he then claimed that he had fabricated what he had told them so that he could join the criminal gang.
The trial judge's ruling. The trial judge ruled that Tofilau's admissions were admissible. He held that they were not to be excluded as involuntary on the ground of having been induced by threats or promises from a person in authority, because the undercover officers were not perceived by Tofilau to be persons in authority. He held that it was not necessary to consider whether s 149 of the Evidence Act 1958 (Vic)[236] ("the Evidence Act") applied; in any event Tofilau's admissions were not "confessions" (that is, complete admissions of guilt) within the meaning of that expression in s 149. He also held that there were no circumstances of "basal involuntariness" because Tofilau's will was not overborne. He declined to exclude the admissions as unreliable, or to exercise the discretion, discussed in R v Swaffield[237], to exclude them[238].
The trial proceeded and Tofilau was convicted.

[150]

In the case of Hill, Bongiorno J followed Osborn J's reasoning in R v Tofilau and said that, while the accused believed in the power of the gangster boss to fix things, power was not authority, and the accused did not believe in the boss's authority.
In the case of Marks, Coldrey J applied Osborn J's reasoning and held that the inducements offered were not "held out by a person cloaked with authority legitimately linked to the investigative or prosecutorial process", but "were held out by a crime boss outside the authority of the law and envisaged the ... perversion of the course of justice through the utilisation of [a] corrupt police officer"[260].
And in the case of Clarke, Kellam J also followed Osborn J's reasoning. He held that Clarke did not see the gangster boss as a person with authority or control over the prosecution, but as "a criminal who might be able to interfere in a criminal way with the investigation of the case against" him[261].
The approach of the Court of Appeal. In R v Tofilau the Court of Appeal rejected a challenge to Osborn J's reasoning in relation to a "person in authority". It approved Osborn J's approach. It distinguished between a suspect's perception that an individual had the capacity to influence the prosecution, and a suspect's perception that the individual had the authority to do so. It required that the suspect perceive that the offeror of the inducement possess, "by reason of some lawfully held or conferred status or relationship with" the suspect, the capacity to influence "the course of the prosecution, or the manner in which [the suspect] is treated in respect of it"[262]. The Court of Appeal rejected the corresponding ground of challenge in the other applications[263].
The appellants' arguments. All appellants contended that their admissions to undercover operatives were not voluntary, on the ground that they had been preceded by threats or promises held out by persons in authority. They did not in terms contend that the "person in authority" requirement did not or should not exist. But the appellants did submit that the operatives in the present cases were persons in authority. There was no issue that the admissions of each appellant had been preceded by promises of advantage if they were made (specifically, profitable membership of the gang and the conferral of de facto immunity by supposedly corrupt police officers friendly with the gangsters) and threats of corresponding disadvantage if they were not made.
The arguments which the appellants advanced on the "person in authority" issue, like their other arguments, were advanced in some detail. The consequences for the appellants if their arguments fail, and the legal significance of those arguments, make it necessary both to set them out and to analyse them in some detail.
The appellants submitted that the trial judges and the Court of Appeal erred in holding that a police officer could not be a person in authority unless the person who confesses or makes admissions believes that officer to have lawful authority, and in concluding that the operatives were not persons in authority because the appellants believed that they were gangsters with access to corrupt police officers capable of perverting the course of justice as distinct from honest officers dedicated to enforcing the law[264].
Dixon J, writing in a context remote from scenario evidence, defined the expression "person in authority" as including "officers of police and the like, the prosecutor, and others concerned in preferring the charge"[265]. The primary submission of the appellants involved a significant expansion of that formulation. The submission was:

[155]

Secondly, the appellants submitted that the approach they advocated was supported by Davies JA in R v Kassulke[267].
Thirdly, the appellants submitted that it had never been a bar to characterising a statement as an inducement made by a person in authority, thereby rendering a confession inadmissible, that the inducement was a threat or promise to commit an unlawful act - to commit a contempt of court[268], to attempt to pervert the course of justice by procuring the grant of bail[269], to obstruct the course of justice by not charging a relative of the suspect[270], to commit the tort of false imprisonment by keeping a mother in custody and putting her children in care unless she confessed[271], or to commit a battery if the suspect was threatened with a beating unless there was a confession, for example. The appellants in effect submitted that there was no difference between that type of conduct and the conduct of persons thought to be gangsters offering to interfere with the course of justice through the medium of a supposedly corrupt police officer.
Fourthly, the appellants submitted that on the test they proposed many past cases would still be decided as they had in fact been decided.
Fifthly, the appellants confronted R v Grandinetti. That unanimous decision of the Supreme Court of Canada upheld a test for defining "person in authority" inconsistent with that which the appellants proposed, namely whether the accused reasonably believed that the person hearing the admission was acting on behalf of the police or prosecuting authorities[272]. The appellants attacked the underlying reasoning.
Finally, the appellants submitted that the undercover officers were exercising the authority of the state in dealing with the appellants, or acting under the orders of officers who were not acting undercover but who were also exercising the authority of the state. They submitted that had the undercover officers been wearing police uniforms and badges while speaking to the appellants before they made admissions, they would have been persons in authority. The appellants submitted that the fact that they were not wearing uniforms and badges was not a material circumstance; in particular, their belief that the "gangsters" would make a request of a police officer corruptly to terminate the investigation was not mistaken in that they believed that officer to be an officer, and he was.
The prosecution's position. On the other hand, the Director of Public Prosecutions submitted that two conditions had to be satisfied before a person was a person in authority. The first was that that person actually did possess the authority - that is, the lawful authority - of the state. The second was that that person was perceived reasonably by the person confessing to have possessed that lawful authority. A question may arise whether, even if it is otherwise correct, the prosecution's definition is too narrow because it excludes what Dixon J called "the prosecutor". That is not, however, a question which needs to be decided in this appeal[273].
The critical difference between the parties. One difference between the appellants and the Director is that the appellants do not require the putative person in authority to in fact be a person exercising the legal authority of the state, whereas the Director does. Even if the appellants' test is erroneous in this respect, it would not affect the outcome, because the undercover police officers in these appeals do satisfy the requirement stipulated by the Director's test. It is accordingly not necessary to decide whether the Director is correct in insisting on the first limb[274].
The other difference between the test advocated by the appellants and that advocated by the Director is critical. It concerns what the reasonable perception of the person confessing is of the relationship between the alleged person in authority and the conduct of the prosecution. For the appellants, the reasonable perception of the relationship need only be that the alleged person in authority has a practical ability to influence the conduct of the prosecution, whether lawfully or not. For the Director, the reasonable perception of the relationship must be that the alleged person in authority has an ability to influence the conduct of the prosecution deriving from lawful authority. The difference is critical because the appellants did not have any reasonable basis on which to believe that the undercover police officers were acting pursuant to lawful authority.

[164]

On that view, the development of the "person in authority" element of the inducement rule was integrally connected with the power of private persons over prosecutions. There are today proportionately many fewer private prosecutions than in the 18th century, even in jurisdictions which permit private prosecutions at all; a symptom and cause of this is the rudimentary nature of 18th century police forces. "The law enforcement officers formed no disciplined police force and were not subject to effective control by the central government, watch committees or an inspectorate."[284]
Further explanations for the development of the inducement rule have been advanced. Appellate review was limited until the Court for Crown Cases Reserved was set up in 1848, and even that was a cumbrous and infrequently used procedure[285]. There was no legal aid. In felony cases, until the Trial for Felony Act 1836 (UK), defence barristers could only argue points of law and advise the accused what questions to ask witnesses; defence barristers could not address the jury or examine witnesses themselves. Neither the accused nor the accused's spouse was generally considered a competent witness until the late 19th century, and they were therefore unable to explain any admissions made - although many contemporary lawyers favoured that state of affairs as conferring advantages on the accused, so that it may not have been causative in the development of the inducement rule[286].
However that may be, many aspects of contemporary conditions appear to have engendered a spirit of hostility to induced confessions.
The ground initially given for rejecting induced confessions in R v Warickshall was unreliability. But the inquiry did not turn on whether in the particular circumstances of a given case a confession was unreliable. Once an inducement was made out - and the decisions on that question were lenient to the accused - the confession was automatically excluded without further inquiry into the likelihood of its being untrue[287]. Thus in 1783 Hotham B said: "It is almost impossible to be too careful ... Too great a chastity cannot be preserved on this subject."[288]
In the ensuing years the authorities revealed the following tendencies.
First, the courts inquired into whether there was a threat or promise; they did not inquire into whether it was likely to have produced an untrue confession[289].
Secondly, very vague observations were held to amount to a threat or promise. Thus confessions were excluded after such statements as: "[Y]ou may as well tell me all about it."[290]
Thirdly, some truthful and even helpful observations were held to amount to a threat or promise. In R v Drew[291] Coleridge J excluded a confession made after the accused was told not to say anything to prejudice himself, as what he said would be taken down, and would be used for or against him at his trial. He ruled in similar fashion in R v Morton[292], as did Maule J in R v Furley[293] and R v Harris[294].
In R v Baldry[295], in 1852, Lord Campbell CJ, Parke B and Erle J made trenchant criticisms of the case law on that point, and this may have checked the tendency described in the penultimate paragraph. However, only the four cases mentioned in the previous paragraph were said or suggested to be wrong. And R v Baldry did not disturb the principle that once a threat or promise was found, no inquiry was conducted into whether it was likely to produce an untrue confession[296]. This was reaffirmed in R v Moore[297], which was argued on the same day as R v Baldry. In R v Moore, Parke B, speaking for eight judges of the Court for Crown Cases Reserved, said[298]:

[208]

The first of the three was R v Hodgson[359]. But the majority of the Supreme Court of Canada there did not include as a person in authority "any person whom the accused reasonably believed was a person who had some power to control or influence the proceedings against him". Their test was "whether the accused reasonably believed the receiver of the statement was acting on behalf of the police or prosecuting authorities". That test is inconsistent with that advocated by the appellants here. The present appellants did not believe the "gang boss" was acting on behalf of the police; they only believed that he had access to a corrupt police officer.
The second authority was R v Dixon. There Wood J said that a "person in authority" included any person who "is seen by the accused by virtue of his position, as capable of influencing the course of the prosecution, or the manner in which he is treated in respect of it"[360]. But to be seen as having a particular "position" is different from being seen as having "some power to control or influence the proceedings": the former test is much narrower than the latter.
The third authority was R v Burt, and in particular some statements of Thomas JA and White J[361]. They do not support the test proffered by the appellants. Thomas JA's observations centre on whether "the accused would see the person asking the questions as a person in authority". And White J's also centre on "authority" rather than "some power to control or influence the proceedings".
The fact that the three cases do not support the test proffered by the appellants is further revealed by the fact that each of them cites R v Todd[362]; yet that case is cited by Davies JA as authority for a narrower test than that proffered by the appellants, namely a test depending on whether the accused reasonably perceives the questioner to be a person in authority[363].
In fact the passage on which the appellants rely in Davies JA's judgment in R v Kassulke as supporting their test cannot be regarded as having the authority of the Queensland Court of Appeal. Far from adhering to it, as the appellants submitted, Davies JA rejected the test described in that passage. He did so in the immediately succeeding passage[364]:

[212]

The argument based on threats to do unlawful acts. A person known to be a police officer who threatens to do an unlawful act unless a confession is made is a person in authority. But it does not follow that promises by persons whom a suspect does not know to be police officers to procure a corrupt police officer to obtain practical immunity are promises made by persons in authority. A suspect could well know that a police officer investigating an offence who threatened to beat that suspect unless the latter confessed was not making a lawful threat, but the police officer is still a person in authority because the suspect would be likely to believe, with reason, that the police officer had lawful authority to carry out investigations of and initiate prosecutions for the offence. The appellants' submission was that where a police officer offered a suspect bail[367] or offered not to prosecute a suspect's relative[368], if the suspect confessed, an inducement had been offered by a person in authority by threatening an unlawful act. It was submitted that the offer of bail was a representation that the police officer would "attempt to pervert the course of justice" by representing that he or she "is close to the judge and that the judge will accede to [the] request". The appellants submitted that by offering not to prosecute a relative of the suspect, the police officer was contemplating a "thwarting [of] the interests of the State [in ensuring that] offenders get prosecuted, and indeed partly sabotaging or steering the investigation away from an ... offender". These are very far-fetched statements. These can be promises which police officers know they can make good lawfully: they promise bail to people they know will get bail; they promise not to charge relatives whom they do not intend to charge. However, even where police officers threaten illegalities, it is possible for someone being questioned reasonably to believe that they have lawful authority to investigate and initiate prosecutions for an offence, even though they are threatening or carrying out unlawful acts in the course of investigating the offence. There is a distinction between threatening or committing unlawful acts in the course of exercising lawful powers of investigation, on the one hand, and, on the other hand, doing so while lacking any lawful authority to conduct an investigation at all. The fact that persons in the former category are persons in authority is not a ground for inferring that persons in the latter category are as well.
The argument that the appellants' test is consistent with the outcomes in earlier cases. The appellants' submission that on their test many past cases would still be decided as they were in fact decided does not support that test. Since no existing Anglo-Australian case before Osborn J's decision had to determine the precise issue in these appeals, it is not surprising that the results in past cases are compatible with the appellants' test.
The appellants' attack on R v Grandinetti. The appellants submitted that what was said in R v Grandinetti is inconsistent with Wood J's test in R v Dixon. That is not so. The submission that there is inconsistency depends on reading the word "capable" in Wood J's test as meaning that any capacity, lawful or not, to influence the course of the prosecution will suffice. For reasons given above[369] that reading is unsustainable.
The appellants also submitted that the focus of the "person in authority" rule is different in Canada from that of the equivalent rule in Australia. It was said that in Canada the focus is on the "coercive power of the state". It is true that the Court's conclusion was[370]:

[219]

These criticisms advanced by Conrad J cannot be transposed to the reasoning of the Victorian Court of Appeal. Its approach did not require the appellants to believe that what was said to them was for the good of the state. It required only that they believe, on some reasonable basis, that the "gangsters" had the authority of the state. The appellants did not believe this. If there is unfairness in the eliciting of scenario evidence, that is a matter to be dealt with by inquiring whether there should be discretionary exclusion on grounds of unfairness, not as part of the inducement rule. To say that the police officers did indirectly what they could not have done directly is questionable: there was insufficient evidence for the appellants to be suspects, they were not in custody, and there was no duty to warn them about their right to silence. To describe the conduct of the police officers posing as gangsters as making "use of the implied power and authority of the state" is incorrect; they were reasonably to be perceived by the appellants as making use of their functions as gangsters and making use of a confederate, a supposedly corrupt police officer, who could not be described as embodying the "power and authority of the state" when he was nullifying its attempts to detect crime. The appellants in the present appeals did not demonstrate how the admissions were at risk of being unreliable, or why the conduct was "inappropriate". That is, the appellants did not demonstrate how the reception of the evidence was inconsistent with the reliability principle and the protective principle.
The argument based on uniforms and badges. If the police officers who induced the appellants' admissions had not been undercover operatives disguised as gangsters, but had been acting as uniformed officers (or as plain clothes detectives with identification), no doubt they would have been persons in authority, because it may have been reasonable for the appellants to believe that they were. To postulate this variation is not helpful. It brings about a radical change in the circumstances. It introduces discordance and unreality: for a representation by a person believed to be a gangster that he can procure immunity for the suspect from a corrupt police officer is likely to be different in its effect from a representation by a police officer that he can procure immunity for the suspect from a police officer, corrupt or otherwise. It was not reasonable for the appellants to perceive the "gangsters" as being capable lawfully of influencing the course of the investigation; it would be more reasonable to perceive police officers as being capable of doing so.
One question which the appellants posed by varying the facts of the present cases, which may arise in other cases, but which does not arise in the present circumstances, is whether the supposed "corrupt police officer" who was to ensure immunity for each appellant could be a person in authority. The "corrupt police officer" in these appeals could not be a person in authority, because he offered no inducement personally and he offered no inducement through the undercover officers with whom the appellants had dealings. It might be a question, in another case in which a person in that position did offer inducements, whether that person was a person in authority. The answer to that question would depend on whether it was reasonable for the accused to perceive the person to have the lawful authority of the state to act as he did.
Consequences of the appellants' test. The appellants did not shrink from the extreme consequences of their arguments. Their argument that persons were persons in authority if they had a practical ability to influence the conduct of the prosecution, whether lawfully or not, if sound, entails the result that a criminal who was not an undercover police officer and who offered to assassinate the crucial witness to the accused's crime would be a person in authority if there were reasonable grounds for believing in his capacity to do this. The Court of Appeal rightly rejected that consequence as absurd, and its absurdity reveals the invalidity of the argument which leads to it[377].

[224]

Jury danger. The view that confessions are excluded because of their disproportionate effect on the jury, if treated as a separate justification for the inducement rule independently of the reliability principle, would lead to the exclusion of all confessions, not just those generated by inducements and not just those generated by inducements proceeding from persons in authority. Hence that principle is unrelated to the "person in authority" requirement and does not cast any light on the definition of "person in authority".
Nemo tenetur se ipsum prodere. If confessions generated by inducements are excluded on the ground that they are the result of the accused having been influenced by the state to engage in self-betrayal or self-accusation and they unsatisfactorily relieve the state of its duty to prove its allegations, then there is no case for including in the definition of "person in authority" persons who were not perceived to be officers of the state. To take the present facts as an example, the appellants thought they were obtaining private and personal advantages from gangsters. It is true that a conduit to one of those advantages was thought to be the connection between the gang and a corrupt police officer, but the appellants can hardly reasonably have thought that that officer was acting in the state's interests.
Disciplining the police. If confessions are excluded because of a desire to prevent police officers using threats or promises on the ground that it is improper for them to do so, then the inducement rule has no operation in relation to non-police officers. Accepting the appellants' contention that what matters is the perception of the person confessing, the function of ensuring appropriate police behaviour is not advanced by controlling the conduct of people who appear to be gangsters. The appellants leave out of their test that which the Director puts in his, namely a requirement that the person offering the inducement actually be a person in authority. If that is not a necessary element of the test, as the appellants would have it, controlling the behaviour of persons in relation to whom it does not matter whether they are police officers is immaterial.
Impact on free choice. If the purpose of the inducement rule is to preserve the autonomy of the accused's will in the face of pressure from the uniquely coercive power of the state, there is no justification for extending the definition of "person in authority" to cover persons who are not perceived to be officers of the state, but only gangsters.
Summary. Whether the basis of the inducement rule be reliability, preventing improper state coercion, disciplining the police, or avoiding unfair reductions in the choice of suspects to speak, a perception by the suspect that the coercive power of the state is being used is central: "most criminal investigations are undertaken by the state, and it is then that an accused is most vulnerable to state coercion"[379]. Where that perception does not exist, the basis of the inducement rule is not present. It is true that the coercive power of bodies or persons other than the state can be as coercive in particular cases as that of the state, but to select that fact as a reason for devising a new inducement rule would be to create a rule wider than that which the appellants are seeking. It would be to abandon the "person in authority" requirement. It would be to compel the prosecution to establish the voluntariness of every statement against interest made by an accused to any person. To require that is to impose "an overwhelming burden"[380].

[229]

(d) But even in those jurisdictions the step of abandoning the "person in authority" requirement was not a step taken in isolation and for its own sake. The "person in authority" requirement went, but only as a small part of a radical process of jettisoning the common law on confessions and substituting a wholly restructured system. The model which Australian legislators have followed is that of the Evidence Act 1995 (Cth). Section 84 provides for the exclusion of admissions the making of which were influenced by violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or a threat of conduct of that kind. Section 85 provides that evidence of certain admissions is inadmissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. The circumstances in which that applies relate to admissions made by a defendant in criminal proceedings in the course of official questioning, or as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued. In addition, s 138 provides for the exclusion of evidence obtained improperly or illegally, unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which the evidence was obtained. Section 90 provides that in a criminal proceeding the court may refuse to admit evidence of an admission if it would be unfair to a defendant to use it. Section 135 gives the court power to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial, be misleading or confusing, or cause or result in undue waste of time. And s 137 obliges a court in criminal proceedings to refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. In England the equivalent to ss 84 and 85 is s 76 of the Police and Criminal Evidence Act 1984. Confessions may be excluded if obtained by oppression (ie torture, inhuman or degrading treatment, and the use or threat of violence, whether or not amounting to torture): s 76(2)(a) and (8). Confessions may also be excluded if obtained in consequence of anything said or done which was likely to render unreliable any confession: s 76(2)(b). To modify the inducement rule as the appellants wish would be to take a step favourable to the interests of defendants generally. But that was not the way the legislatures, accepting the advice of expert law reform bodies, chose to act. They got rid of the "person in authority" requirement, but also made changes hostile to the interests of defendants generally by emphatically reversing the trend which R v Baldry had criticised, checked, but not reversed. No doubt, as Marks submitted, it can be appropriate for the common law to be modified so as to adopt, or accommodate itself to, statutory changes, though this is not an easy course in a federation like Australia that has a single common law, where legislation has altered that single common law in some jurisdictions but not others. To refine or abolish the "person in authority" requirement in the light of statutory refinement or abolition would not necessarily be outlandish. But complete abandonment of the received inducement rules and the substitution for them of entirely new statutory regimes might be thought a different matter, particularly since the new regimes at present only apply to a minority of jurisdictions and a minority of litigants; and the step is indeed not one which the appellants invite the Court to take. Nor is there any injustice to the present appellants in not taking this step: it is highly unlikely that the appellants' confessions would have been excluded under ss 84 or 85 if those provisions had been in force in Victoria, since the conduct of the operatives was not violent, oppressive, inhuman or degrading within the meaning of s 84, and since, on the findings of the trial judges, it was unlikely that the truth of the admissions was affected by that conduct within the meaning of s 85.

[254]

Dixon J's statement analysed. Dixon J in McDermott v The King drew a distinction between confessions made in the exercise of free choice and those made by persons whose will was overborne. The examples he gave of an overbearing of the will - "duress, intimidation, persistent importunity, or sustained or undue insistence or pressure"[404] - are instructive, for they are restricted. In 1948, when McDermott v The King was decided, duress was the use or threat of either violence to the person or imprisonment. At that time duress of goods was not seen as sufficient to render a contract void[405], although money paid in order to obtain possession of goods wrongfully detained, or to avoid their unlawful detention, was recoverable in an action for money had and received[406]. Nor was economic duress then recognised as a ground rendering a contract void. In any event both duress of goods and economic duress are factually remote from involuntary confessions. Intimidation is the threat of violence or some other illegal act. The expression "sustained or undue insistence or pressure" implies that insistence or pressure which is less than sustained or undue does not produce involuntariness.
Even though these examples selected by Dixon J are not exhaustive, his use of them points to a relatively narrow ambit for "basal involuntariness" and suggests that the appellants are wrong in construing other parts of Dixon J's language in McDermott v The King as indicating any breadth in the doctrine.
The limits of Dixon CJ's conception of "basal involuntariness". Dixon CJ was either the sole or a primary author of the "basal involuntariness" doctrine. That he, at least, had a more limited view of voluntariness than that suggested by the appellants is indicated not only by the precision of the language quoted above[407] from Cornelius v The King, and the language just analysed in McDermott v The King, but also by other decisions in which he participated.
In Wendo v The Queen[408] he said:

[266]

The limits of Dixon J's approach is also indicated by the fact that in Sinclair v The King he referred with approval to United States authority holding that a confession by an intoxicated person is not inadmissible "unless the degree of intoxication is so great as to deprive him of understanding what he was confessing"[419]. In similar fashion Sholl J considered that evidence could be excluded as involuntary only if an accused person lacked "sufficient intellectual capacity ... to determine whether he would or would not exercise his right to refuse to answer"[420]. A mere reduction in that capacity did not suffice.
The aspect of the basal involuntariness doctrine under discussion has only occasionally led to exclusion. A confession late at night by an accused person who had fainted twice, had difficulty in moving and was "in a dopey condition" was excluded on the ground that the prosecution had not established that it was voluntary[421]. The same result applied to a confession by a person who, after stabbing another person, had "blacked out" and attempted suicide by taking poison and by jumping into Auckland Harbour; he was found in wet clothing, cold, shivering, frothing at the mouth and in a distressed state; he had repeatedly vomited; and he had been rushed to hospital where his stomach had been forcibly pumped out before the confession was elicited[422]. But instances of this kind, where there has been automatic exclusion on grounds of involuntariness, as distinct from discretionary exclusion, are rare.
The point of these citations is to demonstrate that Dixon J, and other judges, have considered the "basal involuntariness" rule in its application to mentally disordered persons to be quite circumscribed. The appellants do not now claim the benefit of any doctrine relating to mental disorder, although Marks at one stage appeared to[423], but the limits of the "basal involuntariness" rule in that respect suggests that it is not extensive in other respects, and that the width of the inducement rule is not a pointer towards any width in the "basal involuntariness" rule.
To the very narrow extent to which a category of basal involuntariness has been found or contemplated as a possibility in relation to persons suffering from mental disorder, or a head wound, or extreme fatigue, that category operates as an exception to a general proposition - it cannot be called a rule of law - that "what will render a confessional statement involuntary must be some factor external to the accused"[424]. The factors listed by Dixon J in McDermott v The King were all factors external to the accused - factors causing the will of the accused to be "overborne"[425].

[268]

The appellants submitted that "the vice is here that these were police officers who deliberately set about the scenario tactic to secure from the suspect a detailed confession which, had they gone about it by interview process, they could not have done without giving proper warnings and securing and advising that they could have the benefit of a solicitor". It was the essence of scenario evidence that "the appellants in each case had to be denied their fundamental rights". In particular, counsel for Clarke submitted: "Naturally [Clarke] was not afforded any protective rights; they were and indeed, had to be, deliberately circumvented in order to achieve the sole purpose of extraction of the confession."
This submission faces difficulties of a magnitude which permit it to be rejected at this stage. It may be true that had the police officers not been operating undercover, but had asked each appellant to answer questions, the appellants would not have answered, or would not have made admissions. But whether the police officers would have had a duty to warn the appellants about a right to communicate with a solicitor depends on the terms of ss 464A(2) and 464C of the Crimes Act 1958 (Vic) ("the Crimes Act"). The sections protecting the rights of suspects under interrogation did not apply to the police officers for several reasons. Since they were "engaged in covert investigations under the orders of a superior" they fell outside the definition of "investigating official" in s 464(2). Secondly, the appellants were not "in custody" within the meaning of s 464A(2) or s 464C. For the same reasons the duty created by s 464A(3) to warn the appellants that they did not have to do or say anything but that anything they did say or do might be given as evidence did not arise. Even if the first bar to the application of ss 464A and 464C was removed by postulating a case where police officers were not operating covertly, the second would remain as long as the appellants were not taken into custody.
Another difficulty is that when police officers, pursuant to judicial warrant, listen to telephone calls made by others, they may obtain evidence of admissions which they could not have obtained by the process of interviewing. Yet the surveillance evidence is admissible. So is confessional evidence obtained by eavesdropping.
An even more fundamental difficulty is that this submission does not correspond in any way with Dixon J's test in McDermott v The King. That test does not turn on a rejection of police tactics which seek to obtain evidence indirectly which could not have been obtained directly without certain safeguards being supplied to the accused. It turns simply on an overbearing of the will. The submission might be material to discretionary exclusion. It is not material to basal involuntariness.

[273]

Is the conduct of a person who has been deceived not voluntary? Underlying both the second and the third of the appellants' submissions was a contention, in the words of a learned article, that the "conduct of a person who has been deceived is in an important sense not voluntary: the behaviour is, to the extent it is governed by the deception, not under the control or the choice of the actor"[426]. That reasoning is unsound in relation to the "basal involuntariness" doctrine. There are innumerable examples of confessions being admitted despite the confession having been generated by deception. Sometimes the deception is contemplated by the grant of warrants by judges to police officers to record telephone conversations secretly, or to record face-to-face conversations secretly[427]. Often the decision to record conversations with a particular accused person secretly is made because no recording would be possible if that accused person knew of the recording. Secret recording thus commonly depends on trickery - creating or confirming a false assumption that no recording is being made. Sometimes the deception occurs without prior judicial authority, as where police officers deliberately arrange matters so that they can overhear what a suspect says: the suspect has been deceived into thinking that he can speak with impunity. To introduce a rule which could render "involuntary" all confessions made on the basis of a false assumption of fact created or encouraged by police officers would radically change the law.
In any event, the force of the contention advanced in the article quoted at the start of the preceding paragraph is lessened by the fact that in the same article the author said that while lying in court and deceiving suspects about their rights were wrong, "there are distinctly fewer moral objections to the use of disguises, informers or other agents at the investigative stage, so long as this does not involve prompting or questioning a suspect in relation to an incident in a way that undermines rights that should be protected"[428]. Whether, as Clarke submitted in relation to discretionary exclusion, rights were undermined in this case is considered below[429].
Deception and involuntariness: the cases. The appellants referred to specific authority in support of their third submission. The appellants contended that Murphy J in Cleland v The Queen[430] had said that "involuntariness can arise where there is any suggestion of trickery or false representation".
Murphy J said[431]:

[287]

Fourthly, Murphy J spoke tentatively ("It may be a question of classification"; "The voluntariness of a confession is suspect"). He did not link his remarks to the question of whether the person dealing with the accused was a person in authority. The case in which he spoke was dealing with an issue quite separate from basal involuntariness, namely whether there was a discretion to exclude illegally or improperly obtained confessional evidence. What Murphy J said on issues other than that issue was general and cautious. The circumstances he described were seen by him as flagging a dangerous area; but he was not purporting to delineate with precision the boundaries of that area. In particular, Murphy J did not specifically state any rule that at common law a confession is involuntary on the sole ground that it has been induced by a misrepresentation made by a person other than a person in authority.
Canadian authority on deceit. There is Canadian authority that deceit in the form of "a police officer pretending to be a chaplain or a legal aid lawyer, or injecting truth serum into a diabetic under the pretense that it was insulin" would render a confession inadmissible. This was so on the ground that the conduct "is so appalling as to shock the community" - but not because it undermined "voluntariness per se"[443]. In Australian law, of course, the abuse of what were assumed to be confidential relationships which a suspect might well expect would give the conversation immunity from use in litigation, even if no civil wrong were committed, would be an impropriety likely to attract exclusion on discretionary grounds, subject to other relevant factors; the same is true of the battery involved in the injection, which is not merely an impropriety but an actual illegality.
Among the deceptions employed by the undercover officers against Clarke was a suggestion that the police had stronger evidence against him than they actually had. In R v Oickle the Court treated this as an example of potential "oppression" - that is, the creation of "oppressive conditions" which are "inhumane". Iacobucci J said[444]:

[306]

The passages just referred to deal with "voluntariness" in the contexts of duress as a defence to murder, duress to the person in relation to contracts, and economic duress. The present context is different again: the admissibility of confessions. The appellants submitted that the primary judges had concentrated too much on whether the will of the appellants had been "overborne" and too little on whether, to use an expression of Lord Simon of Glaisdale, it had been "deflected not destroyed; so that the intention conflicts with the wish"[458].
Even if this line of thinking were relevant to the admissibility of confessions, and even if it suggested some flaw in Dixon J's account of basal involuntariness, it would not assist the present appellants. There is no analogy between the present appellants and persons who commit crimes under duress. To use Lord Simon of Glaisdale's language, their intention to confess did not conflict with their wish not to do so. They intended to confess because they wished to. To use Professor Atiyah's language, the undercover police officers made no threats: they only offered the advantages of immunity from prosecution and a livelihood from the gang. The line of thinking advocated would have to suffer a transformation so as to accommodate the appellants' complaints about how they were deceived; but no attempt so to transform it was made. In view of the inapplicability of the submission even if it were soundly based in law, it is not necessary to consider whether it is soundly based in law.
That conclusion is reinforced by the following considerations. The "deflection of the will" submission rests on ideas which did not originate with the appellants. The submission was never put to any of the trial judges. That by itself is not necessarily a fatal objection to the submission. But what may be a fatal objection, depending on how the doctrine of will deflection were to be expressed, is that factual examinations might have been carried out on the voir dire which could possibly have defeated the appellants' argument. The submission was not put to the Court of Appeal. In the course of argument on the first day of these appeals, members of the Court referred the parties to Professor Atiyah and Barton v Armstrong[459]. By the second day of the hearing, two and a half months later, some of the appellants took up the suggestions. But there was no examination, in any detailed or organised or confident way, of the merits of the suggestion in law, the consequences of its acceptance for other parts of the law of confessions, or even of its application to the facts. These are circumstances which do not make the present occasion one on which it would be satisfactory to consider whether this important part of the law of evidence should undergo the radical reconstruction suggested.
It may be desirable, however, to note the following matters.
First, Director of Public Prosecutions v Lynch was overruled by a unanimous House of Lords 12 years later in R v Howe[460]: duress, based on a desire to protect one's own life or the lives of one's family, was held not to be a defence to a charge of murder, whether the accused was the actual killer or a principal in the second degree. This is not an event to which the appellants referred. The House of Lords in R v Howe did not criticise Director of Public Prosecutions v Lynch in relation to the "overbearing of the will" issue: rather it adopted the view of the minority in Director of Public Prosecutions v Lynch. But the changed result reveals how criticism of the "overbearing of the will" approach as a matter of principle does not lead inexorably to any precise conclusion as to what the rules of substantive law are in any particular field.
Secondly, there are general differences between the issues raised in the cases relied on and the present circumstances. Where duress as a defence to murder is in question, the law is seeking to balance an accused person's understandable instinct for self-preservation against the importance of showing fortitude against pressure to commit the wrongful act of killing another. Where duress to the person as a vitiating factor in contractual validity is in question, the law is seeking to balance the plaintiff's instinct for preservation of bodily health against the undesirability of reopening concluded transactions. But where confessions are in question, the form taken by the rules relating to voluntariness rests, among other things, on the need to balance the desirability or undesirability of the conduct which led to the confession, the risk of an unjust conviction, and the public interest in investigating and prosecuting crime by obtaining evidence of it from persons who can give the best evidence about it. It is far from clear that light is cast on the underlying considerations applicable to the present category by examining those applicable to other categories.

[338]

Clarke applied towards the end of the first day of hearing to amend his notice of appeal. The new ground contended that the Court of Appeal had "erred in failing to determine that the trial judge had erred in not excluding, in the exercise of his discretion", the admissions made by Clarke to the gang leader.
Events at trial. At trial counsel for Clarke (who was not the counsel appearing in the Court of Appeal or this Court) put three arguments to Kellam J: that Clarke was denied the opportunity to exercise his rights; that the manner in which the admissions were obtained placed Clarke at "a massive forensic disadvantage"; and that the nature of the covert operation was such as to require exclusion of the admissions on public policy grounds.
Clarke's first argument at trial. The first argument was that the covert operatives denied Clarke any of his rights under the provisions of Pt III Div 1 Subdiv 30A of the Crimes Act. Counsel submitted that the gang boss was dominant in his relationship with Clarke; that in consequence he discouraged Clarke from responding to a police request for a DNA sample; that the "prop" - a supposed progress report into the state of the police investigation - which he supplied Clarke with contained material falsehoods; that he indulged in hectoring, bullying and overbearing behaviour in circumstances where Clarke had not been given the opportunity to be questioned by non-undercover officers; and that he had thus not been able to exercise any of the rights given by those provisions of the Crimes Act.
Kellam J accepted that, although in the videotape of his discussions with the boss Clarke revealed no distress and gave no sign of being under threat or coercion, he was hectored and harangued to a significant degree, in a manner which would be unacceptable in a formal police interview. He also accepted that the prop was fabricated and that while no piece of information in it was untrue, it contained several exaggerations. Indeed the available admissible circumstantial evidence fell a long way short of being sufficient to charge Clarke. Thus he was not in custody or something akin to custody and was not subject to the compulsion of the state. He was not under any compulsion by threat of violence. He thus had no vulnerability flowing from custody or compulsion of that kind. He had no rights under the relevant provisions of the Crimes Act because he was neither in custody nor a suspect, and because the police officers were engaged in covert investigations[483]. The means employed against Clarke were deceptive, but they did not circumvent any express exercise by Clarke of his right not to talk to police officers. Kellam J found that although the relationship between Clarke and the boss was unequal, it did not compare with the inequality between a person in custody and police officers. Nor did the boss unfairly exploit the inequality. Clarke wanted to impress the boss in order to join the gang and avoid the consequences of the police investigation. Kellam J concluded that the means employed by the covert operatives were not disproportionate to their purpose of investigating the serious crime of murdering a six year old girl.
Clarke's second argument at trial. The second argument advanced by counsel for Clarke at the trial was that reception of the admissions would create the forensic disadvantage of revealing Clarke to be a person with a criminal past who was prepared to engage in criminal acts in the future and to encourage the criminal acts involved in interfering with the police investigation.
Kellam J accepted that while this difficulty could be lessened by editing parts of the confessional statements, it could not be wholly cured, for some prejudicial material would remain. However, he thought that the forensic disadvantage could be overcome by careful jury directions, and he indicated that the issue might have to be reconsidered as the trial proceeded.
Clarke's third argument at trial. The third argument advanced at trial by counsel for Clarke was that employment of the particular covert operation was too high a price to pay: it involved the deliberate depraving of an apparently reformed offender, and it was a technique with obvious dangers if used by corrupt police officers. Although Kellam J found force in the submission, he said[484]:

[341]

The Court of Appeal. The Court of Appeal found no appellable error in Kellam J's approach[486].
Counsel's submissions in this Court. Counsel for Clarke in this Court submitted that while it was conventional to analyse discretionary exclusion of confessions as involving two "discretions" - to reject a confession the reception of which would be unfair[487], and to reject a confession that was illegally or improperly obtained on public policy grounds[488] - in truth there was but a single "discretion"[489]. It is not necessary to resolve this question, since the outcome of the appeal will be the same whatever the answer. He also submitted that in any event what was involved was not a "discretion" but a rule of law, and relied on an analogy with the rule excluding evidence the prejudicial effect of which exceeded its probative value. It is not necessary to resolve that question either, for the same reason, although the appellant's submission is open to question, and quite out of line with past linguistic usage in this field.
Counsel for Clarke submitted that Kellam J's reasoning contained four errors.
The first alleged error was his conclusion that Clarke was not in a vulnerable position. The error lay in a failure to appreciate that Clarke believed that if he left the operatives he would inevitably be charged with murder. It also lay in a failure to appreciate fully, or weigh, the fact that the boss held himself out as a person with significant power over the progress of the police investigation.
The second alleged error related to the forensic disadvantage which reception of the admissions created for Clarke in revealing a criminal propensity. Counsel submitted that Kellam J was wrong to conclude that the forensic disadvantage of having this evidence of bad disposition admitted could be overcome by judicial warnings.
Thirdly, it was alleged that there was another forensic disadvantage. This argument, which is not recorded by Kellam J as having been put to him, related to the nature of the questioning engaged in by the boss. Counsel submitted:

[344]

The fourth error alleged by counsel for Clarke was that the boss, and other covert officers, exploited the vulnerability of Clarke by a process of psychological duress. "Minimum standards of the conduct of law enforcement officers whether covert or otherwise would never permit subjecting a suspect to this form of duress in an attempt to obtain confessional evidence." It was said that Kellam J erred in placing too much weight on the enthusiasm with which Clarke joined in the scenarios and on the fact that the police officers did not commit any crimes.
Consideration of the appellant's arguments. The first submission and, in part, the fourth, rest on the proposition that Clarke was in a vulnerable position. That proposition, and the contentions underlying it, were rejected above for reasons which need not be repeated[492].
As to the forensic disadvantages of the scenario evidence in revealing Clarke's criminal propensity, it misrepresents Kellam J's reasoning to suggest that he relied only on the effect of jury directions to cure the problem. He relied also on the effect of editing, and left open the possibility of the problem being revisited later if necessary. The Court was taken to no passage indicating that counsel for Clarke at the trial took up this invitation. In any event the prejudicial effect of the criminal propensity revealed was insignificant compared to the prejudicial effect of what he admitted about the murder of Bonnie Clarke.
So far as the forensic disadvantages of hectoring questioning are concerned, there is no close analogy between the authorities on which Clarke relied and the present case. R v Amad[493] concerned questioning by non-covert police officers of an accused person held in custody who had not been cautioned. The questioning was in breach of the Police Commissioner's Standing Orders, and there were other improprieties. Here Clarke was not in custody, the police officers lacked the material to place him in custody, there was no breach of either the Crimes Act or the modern equivalent of the Police Commissioner's Standing Orders, and there were no improprieties. In addition, the reasoning of Smith J towards his conclusion that the discretion should be exercised against reception reflects a distaste for the employment at trials of lies by persons being interrogated. Whether evidence should be excluded on the grounds under consideration is a question depending very much on the specific facts of the particular case, and Smith J's approach to the employment of lies is not necessarily determinative in other cases.
In R v Pritchard, which was again, unlike the present case, a case involving interrogation in custody in breach of the Chief Commissioner's Standing Orders[494], the outcome turned on the unfairness of depriving the accused of his right to make an unsworn statement by reason of receiving evidence of police interrogation in which the interrogator repeatedly and derisively revealed disbelief in the accused's denials. The particular aspect of the right to make an unsworn statement which was stressed was the right to give a version of events without being subjected to cross-examination. That kind of thinking has no application in Victoria now in view of the fact that the right to make an unsworn statement has been abolished. But again, since the decision to exclude the evidence depends closely on the facts of each case, the reasoning in R v Pritchard is not determinative in the circumstances of this case, which will now be considered below[495].
The submission that Kellam J erred in failing to conclude that the way Clarke was treated fell below acceptable standards of police conduct must be rejected for the following reasons.
Counsel for Clarke correctly accepted that so far as his arguments turned on exclusion because of illegal or improper means, the factors listed by Stephen and Aickin JJ in Bunning v Cross[496] were relevant. Two of these in particular are adverse to Clarke's submissions. One is the nature of the offence charged - here not only a murder, but a particularly vicious and horrifying murder. This was a factor which on occasion counsel, in his emphasis of the need for compliance with particular standards, submitted was irrelevant: but to accept that submission would be radically to change the law, as counsel admitted, and for the worse. The other is whether the police conduct affected the cogency of the evidence[497]. That Clarke said what the prosecution alleged he said is clear beyond doubt, for what he said was recorded, and he did not deny saying it. There is no reason to disagree with Kellam J's conclusion, after he had closely compared what Clarke said with the objective evidence, that the admissions were "not inherently unreliable" and that "it would be open in all the circumstances for a jury to consider that the manner in which the admissions are shown to have been made on the video-tapes is such that they are reliable"[498]. The Court of Appeal agreed with that conclusion[499], and no attack was made on it in this Court, beyond a throwaway assertion that the conduct "may well have" affected the cogency of the evidence. That assertion must be rejected.
Three other relevant Bunning v Cross factors are whether any illegality was the result of an innocent mistake or a deliberate disregard of the law, whether it was easy to comply with the law, and what the specific intention of the legislation infringed was. These do not arise in terms because there was no illegality, as counsel for Clarke twice conceded, then denied, but then, correctly, twice conceded again. Counsel for Clarke however submitted that the conduct was improper. He submitted - correctly - that it was plainly deliberate. He also submitted that it would have been easy for the police to have behaved properly, by questioning Clarke in a conventional fashion. It is true that that would have been easy, but it is also true that conventional questioning had failed in the past.
Counsel for Clarke said that three further factors were relevant[500]. One was that the conduct was encouraged or tolerated by those in higher authority: plainly it was. Another was that the conduct was inconsistent with a right of Clarke's which was fundamental, namely the "right to silence". That submission must be rejected in view of the conclusions reached above that the admissions were voluntary and that Clarke saw himself as having a choice which he exercised for his own purposes[501]. That is, he had a right to silence but he chose not to exercise it. The final factor was whether the conduct would involve the court itself in giving, or appearing to give, effect to impropriety in a way that would be incompatible with the functions of a court, or which might damage the repute and integrity of the judicial process. Counsel for Clarke submitted that for police officers to promise to secure immunity from prosecution when in fact they intended to prosecute was an act of bad faith and corruption, which if permitted by this Court, would cause "the very authority of the State ... itself [to] be placed in jeopardy". It was improper for the state to put moral or psychological pressure on individuals in a process of actively eliciting confessions - as improper as it is for the state to put physical pressure on them for that purpose.
The correctness of that submission must be evaluated against the following circumstances. The police had failed - and their failure was not said to be culpable - to collect sufficient evidence against Clarke to charge him. The crime being investigated was very serious[502]. It had remained unsolved for 20 years. The scenario technique was one which had been in use for a long time in Canada, and had been approved by the Canadian courts. It was not embarked on as an unthinking frolic by junior officers. It had been deliberately selected by the superiors of those involved in the light of Canadian experience. No alternative was available if the investigation was to continue. It was reasonable for the police to seek to employ this technique, new in Australia, in carrying out their important duty to investigate an old crime. The technique was employed in a discriminating way, with considerable care being taken to avoid illegality. No doubt psychological pressure was built up, but conventional police interrogation of the most proper kind naturally involves pressure. Counsel submitted that the process was "designed to circumvent the [appellant's] right to silence". Clarke was in fact an experienced criminal who understood that he did not have to answer anyone's questions. He had not claimed any right to silence when interviewed by non-undercover officers soon after the murder. He actively cooperated in the questioning by the undercover officers. The questioning took place in the course of a relationship which he entered freely, and did not exploit some pre-existing or collateral relationship. The interrogation elements in the conversations were patent, and consistent with the roles which he believed the undercover officers were occupying. He had not been charged, and there was no proper basis to charge him. There was no illegality and no breach of Police Standing Orders. Part III Div 1 Subdiv 30A of the Crimes Act did not apply. The failure of other investigative methods which made it necessary to conduct the undercover operation also made it necessary for a process of active "elicitation" to take place. The admissions eventually obtained formed a significant part of the prosecution case. The operatives stressed the need to tell the truth. The undercover officers did not prey upon any special characteristics of Clarke related to his gender, race, age, education or health. The means of elicitation were not so disproportionate to the problem confronting the police as to be inherently unfair or contrary to public policy.
If Kellam J's decision is to be viewed as discretionary, it cannot be said that he made any error of fact or law, took anything irrelevant into account or failed to take anything relevant into account; nor that the result was so unjust as to suggest some error not apparent on the face of his reasoning. If his discretion is not to be viewed as discretionary, it was correct for the reasons set out above. In either event the Court of Appeal was right not to interfere with it.
In view of the importance of the issue raised by the application for leave to amend, it is appropriate to grant that leave, but to reject the new ground of appeal.

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