Evidence - Criminal trial - Exclusion of evidence - Reformulation of tests - Voluntariness test - Unfairness test - Public policy test - Unduly prejudicial test

Listening Devices Act 1978 (WA)

Surveillance Devices Act 1998 (WA)

Green v The Queen [1989] NTCCA 5; (1989) 95 FLR 301

R v Christo [1992] QB 979

Rothman v The Queen [1980] INSC 175; (1981) 1 SCR 640

1 MALCOLM CJ : This is an appeal by the appellant against her conviction on 20 February 1998 in the District Court on one of two counts in an indictment, namely, that on or about 18 November 1992 at Gnangara the appellant with intent to defraud, by deceit or by fraudulent means, attempted to obtain the sum of $25,501 from RAC Insurance Pty Ltd contrary to s 409 and s 552 of the Criminal Code. The appellant was acquitted in respect of a count for an earlier similar offence alleged to have been committed on 16 December 1991 in relation to an attempt to obtain the sum of $6,588 from the FAI Insurance Group. The appellant was sentenced to imprisonment for 18 months with eligibility for parole in respect of the offence of which she was convicted.

2 At the conclusion of the argument of this appeal on 10 November 2000 the Court was unanimously of the opinion that this appeal should be dismissed. It was then indicated that we would publish our reasons for reaching that conclusion later. These are my reasons.

3 The appellant appealed against her conviction on the single ground that the learned trial Judge erred in law in admitting into evidence a tape-recorded conversation, contrary to s 4 of the Listening Devices Act 1978 (WA), which was then in force. This legislation has since been repealed and replaced by the Surveillance Devices Act 1998 (WA).

4 At the hearing of the appeal the original ground, which became ground 1, was abandoned and replaced by the following ground, namely:

"The learned trial Judge erred in admitting the tape-recorded conversation into evidence as it should have been excluded on the basis that it was involuntary and should in any event have been excluded on the basis of sound discretionary judgment."

5 The charges against the appellant related to fraudulent claims alleged to have been made against the two insurers for loss of household goods, allegedly stolen from premises occupied by the appellant. The prosecution case was either that the goods were not in fact stolen or had never been possessed by the appellant.

6 Ground 1 was abandoned because it was based upon a misconception or misapprehension regarding the content and effect of s 4 of the Listening Devices Act which relevantly provided that:

(a) use any listening device to overhear, record, monitor or listen to any private conversation to which he is not a party;

without the consent express or implied of the parties to the private conversation."

7 One of the witnesses for the prosecution was the appellant's foster son, Shane Cassidy, who had a conversation with the appellant at a time when he was wearing a listening device with which he had been fitted by a police officer. Mr Cassidy gave evidence of the conversation during which the appellant admitted to him that the burglary in question was fictitious and provided her a means by which she could fraudulently obtain money from the insurance company in question. The learned trial Judge correctly ruled that, while the police officer who was investigating the matter did not have the permission of a senior officer, as required by s 4(3)(a)(i) of the Act, the person using the listening device was a party to the relevant conversation. It is apparent that the ruling by the learned trial Judge was correct and that ground 1 of the grounds of appeal was rightly abandoned.

8 The appellant's former husband, Mr J P Kinman, gave evidence that the appellant had admitted to him that the alleged burglary the subject of count (2) on the indictment was fictitious and provided her a means by which she could fraudulently obtain insurance money.

9 At the time he gave evidence on 16 February 1998 Mr Cassidy was 28 years of age and working as a self-employed cabinetmaker engaged in building caravans. He gave evidence that from school Year 6 or thereabouts he had been living at the Catherine McAuley Centre in Wembley which provided accommodation for children pending them being placed in foster care. He spent two years living with Mr and Mrs Kinman and their daughters at the Centre before moving to a house at 20 Rhine Crescent in Beechboro in about 1991 to 1992. He was then undertaking an apprenticeship following which he set up a cabinetmaking business at a factory unit leased in Bayswater. In the meantime, Mr and Mrs Kinman had separated and the appellant subsequently purchased a block of land in Gnangara. The appellant, her children and Mr Cassidy lived in a caravan on the block while a house was being completed. Mr Cassidy used his skills as a cabinetmaker to assist in the construction of the house. In the meantime, items of property which had been brought from the house at Beechboro were stored in a storeroom at the back of the carport of the partly completed house at Gnangara.

10 Not long after they moved to the Gnangara house, the appellant told him that she had broken a window in the dining room at the back of the house and put in an insurance claim. Prior to this supposed break in, he said he had been asked by the appellant to put some bore liners in the backyard "so that she could hide some gear down in there". While the bore liners were delivered, in the end they were not used to hide gear. The appellant later complained to him that the insurance company had not paid out on the claim, but provided vouchers which were used to obtain various items, a number of which were used to make payments in kind to various tradespeople who did work on the Gnangara house.

11 In November 1995, having been contacted by the police, Mr Cassidy attended the Joondalup Police Station on 22 November 1995. At that time he agreed to co-operate with and assist the police in their enquiries. This involved arranging a meeting with the appellant. Such a meeting was arranged and Mr Cassidy was fitted with a listening device which recorded a conversation with the appellant over a period of two to three hours. Following the conversation he met with the police again and gave them the tapes of the conversation. It is not necessary to set out in detail the content of the conversation. It is sufficient to say that the admissions made by the appellant during the course of conversation with Mr Cassidy amply demonstrated her guilt of the offence of which she had been convicted. As the learned Judge told the jury in her summing up, the Crown relied upon the evidence of Mr Cassidy and Mr Kinman, both of whom testified that the appellant admitted to them that the burglary at the Gnangara property was a fake. So far as the tape recording was concerned, the appellant's case was that the tape recording did not mean what the Crown said it meant. As to these matters, the learned trial Judge directed the jury that:

"It's a matter for you and it would seem to me that you would listen to the audio tape and, as I say, how you do your deliberations is none of our business and we don't know what you do and we have got no idea of what you do. It would seem to me that the audio tape is pivotal and that is what you would listen to and the Crown say to you that what is in the audio tapes is either clearly admissions or that the only reasonable inference is that the words amount to admissions.

[The appellant] would say they're not clearly admissions and it is not the case that the only reasonable inference is that the words amount to admissions, and that is the issue for you and it's in relation to each count."

12 The learned trial Judge made it clear that in relation to each of the counts of the indictment the jury had to be satisfied beyond reasonable doubt that there was no burglary and that the appellant knew that was the case because she alone, or with the assistance of others, did it herself. As her Honour put it, if that was resolved in the affirmative:

"... there was no burglary and she knew that, then it means that her claim to the insurance company is a lie and she put it in with an intention that the insurance company should pay out on it and so she is guilty."

13 If the relevant question was answered in the negative, then there would be no deceit and the appellant was not guilty.

14 It was submitted on behalf of the appellant that the trial miscarried by reason of the wrongful admission into evidence of the tape recording. It was submitted that because of the circumstances in which the conversation was recorded, the evidence should have been excluded on the two grounds to which I have referred, namely, that in the circumstances the statements relied upon should have been held inadmissible because they were not made voluntarily or alternatively they should have been held inadmissible in the exercise of discretion.

15 During the course of the recorded conversation, Mr Cassidy enquired about a number of items of property which belonged to him and which had been removed as part of the pretended burglary. On a number of occasions during the tape-recorded conversation he was assured by the appellant that his property was safe. During the course of the conversation the appellant asked Mr Cassidy, "Are you wired?", and he denied that he was wired. This raised an issue of voluntariness, so it was contended on behalf of the appellant. It may be accepted that if a statement is made as the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary: McDermott v The King (1948) 76 CLR 501 at 511 per Dixon J. In this case, there was no element of coercion. On a number of occasions Mr Cassidy said that he was concerned about his property and asked the appellant to tell him where it was because otherwise he was going to be "implicated" or "involved" and "charged". It was submitted that in this context the admissions were involuntary because they were only made to placate Mr Cassidy and lay to rest any fears that he may have had in relation to his involvement. Both a reading of the transcript of the conversation and listening to the tape recording of it confirm that the appellant was a very strong character.

16 Counsel for the appellant relied substantially on the decision of the High Court reported as R v Swaffield [1998] HCA 1; (1997) 192 CLR 159. That case was heard together with Pavic v The Queen, both cases being dealt with in a single judgment, namely R v Swaffield; Pavic v The Queen [1998] HCA 1). In Pavic police interviewed Pavic about a murder. He maintained his right to silence. The police told him they believed he had murdered one Astbury and released him without charge. Some days later they interviewed a friend of Pavic, one Astbury. They told him they had enough evidence to charge Pavic, but wanted Astbury to speak to Pavic on behalf of the police and carry a listening device for the purpose. Astbury agreed. Pavic made admissions to Astbury. The issue at the trial was whether evidence of the conversation should be excluded on grounds of unfairness. The trial Judge admitted the evidence. The Court of Appeal of Victoria, Phillips CJ, Southwell and Vincent A-JJA dismissed the appeal. The sole issue was whether the admission should be excluded on the grounds of unfairness.

17 Brennan CJ at 167 - 171 dealt first with the development and rationale of the law relating to the exclusion of involuntary confessions. The rationale for exclusion is that admissions made where the will of the accused is overborne may be unreliable: McDermott v The King, supra, per Dixon J at 511 - 512; R v Lee [1950] HCA 25; (1950) 82 CLR 133 at 134; Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1 at 27 - 29 per Dawson J; and at 18 per Deane J. As Brennan J (as he then was) said in Collins v The Queen [1980] FCA 72; (1980) 31 ALR 257 at 307:

"... the admissibility of the confession as a matter of law (as distinct from discretion later to be considered) is not determined by reference to the propriety or otherwise of the conduct of the police officers in the case, but by reference to the effect of their conduct in all the circumstances upon the will of the confessionalist."

18 The unfairness discretion was dealt with by Brennan CJ in Swaffield at 171 - 175. The Chief Justice referred to the discretion to exclude for unfairness as expounded by Dixon J in McDermott, supra, at 512 - 513. In particular, Dixon J said at 513:

"It is apparent that a rule of practice has arisen, deriving almost certainly from the strong feeling for the wisdom and justice of the traditional English principle expressed in the precept nemo tenetur se ipsum accusare. It may be regarded as an extension of the common law rule excluding voluntary [sic involuntary] statements. In referring the decision of the question whether a confessional statement should be rejected to the discretion of the judge, all that seems to be intended is that he should form a judgment upon the propriety of the means by which the statement was obtained by reviewing all the circumstances and considering the fairness of the use made by the police of their position in relation to the accused."

19 Reference was also made by the Chief Justice in Swaffield at 172 to the statement by Taylor and Owen JJ in Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559 at 570 regarding the issue on a voir dire where their Honours said:

"Those issues were whether the statements were voluntary, or in the alternative, whether, being voluntary, they had been obtained in the course of the investigation by the use of unfair or improper methods so as to make it right as a matter of discretion to reject them. The fact that the relevant evidence has been unlawfully or irregularly obtained does not, in itself, afford a reason for refusing to admit it in evidence ... Although if it has been so obtained that is a matter to be considered along with all other relevant circumstances, in determining whether the evidence should be admitted against an accused person in a criminal trial."

20 Brennan CJ went on to say in Swaffield at 172 - 173:

"Taking this approach the purpose of the exercise of the fairness discretion would be to constrain the police or other law enforcement officers in their dealings with a suspect, so that the suspect should be fairly treated in the investigation. If a suspect were unfairly treated by the employment of illegal or improper methods and a confession were thereby obtained, the court would reserve a power to exclude the confession from evidence and thereby deprive the police or law enforcement officers of the fruit of their illegal or improper methods. If the confession were obtained by unfair treatment, it could be said to be unfair to allow that confession to be used in evidence against the confessionalist. Focusing on the illegal or improper methods employed to obtain a confession, Dixon J in McDermott (at 512) questioned whether, if the scope of the rule which excluded involuntary confessions were fully appreciated there would be much work for the fairness discretion to do."

21 So far as the unfairness discretion is concerned, it is apparent from what Brennan CJ said at 174 - 175 that there were differences of opinion regarding the rationale of the unfairness discretion, although want of reliability was the principal reason advanced in a number of judgments: see Cleland, supra, per Dawson J at 30, 36; and Van der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656 at 666 per Wilson, Dawson and Toohey JJ. A wider rationale in terms that it might well have transpired or would not have been made in the form in which they were made was expressed by Mason CJ in Van der Meer at 662. In Duke v The Queen [1989] HCA 1; (1989) 180 CLR 508 at 513 Brennan J considered that unreliability was not the only consideration but saying:

"R v Lee attributes a broader scope to that discretion. The unfairness against which an exercise of the discretion is intended to protect an accused may arise not only because the conduct of the preceding investigation has produced a confession which is unreliable but because no confession might have been made if the investigation had been properly conducted. If, by reason of the manner of the investigation it is unfair to admit evidence of the confession, whether because the reliability of the confession has been made suspect or for any other reason, that evidence should be excluded. Trickery, misrepresentation, omission to enquire into material facts lest they be exculpatory, cross-examination going beyond the clarification of information voluntarily given, or detaining a suspect or keeping him in isolation without lawful justification - to name but some improprieties - may justify rejection of evidence of a confession if the impropriety had some material effect on the confessionalist, albeit the confession is reliable or was apparently made in the exercise of a free choice to speak or be silent. The fact that an impropriety occurred does not by itself carry the consequence that evidence of a voluntary confession procured in the course of the investigation must be excluded. The effect of the impropriety in procuring the confession must be evaluated in all of the circumstances of the case."

22 In Swaffield itself at 175 Brennan CJ added to the above by saying:

"However, if dubious reliability is not the only justification for excluding a voluntary confession on the ground of unfairness, the nature of the unfairness which justifies the exclusion of a confession that is voluntary and apparently reliable should be identified. Before addressing that matter reference should be made to the development of the third category of exclusion, a category which came to be known as the Bunning v Cross or public policy discretion."

23 Brennan CJ went on to set out in Swaffield at 175 - 181 the origin and rationale of the public policy discretion in R v Ireland [1970] HCA 21; (1970) 126 CLR 321, as subsequently developed in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 in terms of competing public policy requirements which, in rare cases, may justify the exclusion of the evidence, even where the admission of the statement may not be unfair to the accused, as Deane J put it in Cleland, supra, at 34 - 35. Deane J, however, also agreed with the comments by Brennan J in Collins at 317 that:

"When the admission of confessional evidence is in question, the material facts are evaluated primarily to determine whether it is unfair to the accused to use his confession against him, and it would only be in a very exceptional case that the residual question would arise as to whether the public interest requires the rejection of the confession."

24 In Foster v The Queen (1993) 67 ALJR 550 Mason CJ, Deane, Dawson, Toohey and Gaudron JJ dealt with the public policy discretion to exclude evidence obtained by unlawful police conduct. The conduct of the police in this case, however, was not unlawful. There is a degree of overlap between the unfairness discretion and the public policy discretion, as explained by Brennan CJ in Swaffield at 181 - 182. In each case, it is necessary to consider whether the prejudicial effect of the evidence outweighed its probative value: Swaffield per Brennan CJ at 183 - 184.

25 In Swaffield, in a trial on a charge of arson, the trial Judge declined to exercise his discretion to exclude evidence of secretly recorded admissions made by the accused to an undercover police officer. In Pavic, an unrelated trial on a charge of murder, the trial Judge allowed into evidence a tape recording of admissions made by the accused in a conversation with a friend which the friend had taped on behalf of the police. Before the conversation in which the admissions were made, the accused in the first trial had declined to answer questions during the formal police interview. The accused in the second trial refused to attend such an interview.

26 It was held by Toohey, Gaudron, Gummow and Kirby JJ that the admissibility of confessional material turns first on the question of voluntariness, next on exclusion based on considerations of reliability, and finally on an overall discretion taking account of all the circumstances (including the means by which any admission was elicited and whether any unfair forensic disadvantage may be occasioned by admission of the evidence) to determine whether the evidence was admitted or a conviction obtained at an unacceptable price having regard to contemporary community standards. It was held by Brennan CJ, Toohey, Gaudron and Gummow JJ (Kirby J dissenting) that the Court should not interfere with the decision of the trial Judge to allow the admissions made by Pavic into evidence at his trial.

27 In relation to Pavic, Brennan CJ said at 185:

"In Pavic's case the confessional statements were made to Clancy whom Pavic knew as a friend. Clancy was not a police officer or other person in authority over Pavic. There was no impropriety in the police obtaining Clancy's consent to the recording by Clancy of his intended conversation with Pavic. A serious crime had been committed and the means adopted for its solution and for the securing of evidence against the prime suspect were quite legitimate. The investigation of crime is not a game governed by a sportsman's code of fair play (Bunning v Cross at 75 per Stephen and Aicken JJ). Fairness to those suspected of crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation or the giving of a sufficient opportunity 'to invent plausible falsehoods' (R v Lee [1950] HCA 25; (1950) 82 CLR 133 at 152).

The fact that Clancy was regarded as trustworthy by Pavic is an indicator of the reliability of the admissions made to Clancy. There was no public interest to be served by rejecting those admissions."

28 In Swaffield at 201, the Chief Justice referred to some Canadian cases, including R v Herbert (1990) 2 SCR 151. In that case, the accused indicated to police, after consulting with his counsel, that he did not wish to make a statement. He was then placed in a cell with an undercover police officer to whom he made statements implicating himself in the robbery with which he had been charged. The Supreme Court of Canada unanimously concluded that the statements should not have been admitted in evidence. In R v Broyles (1991) 3 SCR 595, the accused was charged with murder. The case was largely circumstantial but it included a statement which he had made to a friend after his arrest and after he had been cautioned that he was not required to say anything. The friend had visited the accused in prison at the request of the police. The friend wore a recording device and questioned the accused about the killing of the deceased. The evidence of the statements made to the friend was excluded pursuant to a provision of the Canadian Charter of Rights and Freedoms. In Swaffield, after referring to these two cases, Toohey, Gaudron and Gummow JJ said at 201 that in Broyles:

"The court identified two questions which were necessary for decision but which did not have to be answered in Herbert. The first was whether the friend was an agent of the state. The second was whether the accused's statement had been elicited by the friend. The court held that the friend was an agent of the state during the conversation. The meeting was set up and facilitated by the police and, without the intervention of the authorities, there would have been no conversation. The court held further that the statement had been elicited because parts of the conversation were in the nature of an interrogation, not just parts of a conversation which flowed naturally. It concluded that the admission of the evidence would render the trial unfair.

The Australian decisions generally have not expressed the relevant principles by reference to the informed choice spoken of in Canadian cases. At least in terms of voluntariness, they have tended to approach the matter in terms of an immunity from compulsion. The emphasis has been on whether duress has been brought to bear on the suspect, that is whether the will has been overborne in some way. That emphasis is well placed when voluntariness is at issue but it is too narrow when the exercise of discretion is involved."

29 Their Honours pointed out, however, at 202 that:

"... the notion of compulsion is not an integral part of the fairness discretion and it plays no part in the policy discretion. In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned, the court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations."

30 So far as the position at common law was concerned, their Honours said that it was "... appropriate to develop the common law in Australia in terms of a broad principle based on the right to choose whether or not to speak". At 203 - 204 Toohey, Gaudron and Gummow JJ noted that nothing which the police did in relation to Pavic was illegal. Their Honours went on to say at 203 - 204:

"No caution was administered by Clancy, which is hardly surprising in the circumstances. The circumstances are close to those in Broyles, the Canadian decision. As in Broyles, the person with whom Pavic spoke must be regarded as an agent of the state. The meeting was not directly set up by the police but Clancy spoke with Pavic at the request of the police who equipped him with a recording device.

If Broyles is applied, the next question is whether the admissions by Pavic were elicited by Clancy or were made in the course of a conversation. Put another way, was there an interrogation by Clancy?

Pavic argued that he was misled by Clancy into making the admissions he did. The trial judge approached the exercise in his discretion on that footing and said:

'Whilst the role of the accused in the killing was volunteered by him to Clancy in a somewhat limited fashion, it cannot, in my view, be said to be the result of, or inextricably linked to, the expressed fear of Clancy that he may be charged with an offence.'

In all the circumstances there is no sufficient reason to interfere with the trial judge's refusal to exclude the evidence of the conversation."

31 In the present case, after preliminaries, the appellant asked Mr Cassidy whether they were wired for sound. Mr Cassidy replied, "Don't be stupid". The appellant then asked Mr Cassidy what the police had asked him. He told her that it was just the two break-ins at Beechboro and Gnangara. When Mr Cassidy remarked that there was "one at Beechboro and one at Gnangara but the thing is I don't know much about - - about them", the appellant then went to describe what had happened. The appellant went on to ask Mr Cassidy what the police were saying about Gnangara. He was then asked what sort of things his father, Mr Jack Cassidy, said. Mr Cassidy replied that his father was just pleading with him to help him get out of gaol. The following then appears:

"MS L VALE: Why are you so - - why are you nervous? You're making me nervous.

MR CASSIDY: No, I'm nervous because I don't know what the cops are doing.

MS L VALE: I'm nervous because I think I'm going to prison.

MR CASSIDY: Okay, can I just tell you?

MS L VALE: Yeah; just tell me everything for Christ's sake because we need each other at the moment.

MR CASSIDY: Right. They're asked about the break-ins mainly. Right?

MS L VALE: Okay. The whole thing is one big mess, okay? I don't know what you're going to ... (indistinct) ...

MR CASSIDY: Okay, but I need to know what to say to them because I don't want to stuff things up."

32 The appellant asked Mr Cassidy, "Are you working with them?" which Mr Cassidy denied. Among other things, there was the discussion of the possibility that Mr Cassidy might be proceeded against for tax avoidance. In response to his comment that there were no records and he did not know the customers, the appellant said that she had a copy of the customers. She then said she would burn the papers. The appellant then warned Mr Cassidy that the police may question him about tax avoidance. In that context the following appears:

"MS L VALE: They might even say to you, 'Oh, but Linda told us that this happened and that you did this and you did that'. You know that is not true because nothing is going to come out of this mouth that is going to say yes to anything.

MR CASSIDY: Right.

MS L VALE: Now, you know that. Another thing to watch out for - - you see, I'm sitting here talking to you and I don't even know if you've got a wire ... (indistinct) ...

MR CASSIDY: That's stupid."

33 There was then a discussion about the fact that, following the supposed burglary at Beechboro, there was furniture and effects stored in a factory. There was then a discussion of items which were alleged in the insurance claim to have been stolen but which were still in the possession of the appellant, including some items belonging to Mr Cassidy in respect of which the appellant assured him they were safe. After further discussion the following appeared:

"MS L VALE: Okay. The only way they can prove anything is if you admit it.

MR CASSIDY: I know.

MS L VALE: I'm not going to admit anything."

34 Later the following appears in the context of a discussion where Mr Cassidy expressed concern that he had witnessed the insurance claim, "... to say that everything that you have told the insurance company is true". The following discussion then ensued:

"MS L VALE: Well, all you've got to say is, 'I had a sore finger that day and I couldn't sign it properly'. I don't remember ... (indistinct) ... that form. I told you I can't remember half of the bloody stuff. Well, how do you think I'm going to ... (indistinct) ...?

MR CASSIDY: I'm going to get in the shit. I'm going to get fucked up.

MS L VALE: Okay. Listen. Just remember that if you admit to anything - -

MR CASSIDY: Pardon?

MS L VALE: - - just remember if you admit to anything you're going to go away and I'm going to go away.

MR CASSIDY: I am not going to admit to any fucking thing.

MS L VALE: Okay.

MR CASSIDY: Right; and it was very quick.

MS L VALE: Okay. Now when he mentions the guitar again just say, 'You know, I can't really remember whether it was my guitar or whether it was Kate's guitar. I can't remember now which one it - - because we both used to use it'. Okay? And that will give us chance to have a look at the list and see what I put down because I've got the list at home. Right?"

35 A little later the appellant said to Mr Cassidy:

"You're going to have to be ... calm ... and if there is something that you're not sure about that we haven't talked about here tonight, you just say, 'I know you're asking me. I really can't remember. You're asking me things from years ago and I can't remember'. If there is something that you're not sure about say that you can't remember. They can't do you for anything that you can't remember."

36 There was another discussion about the signature on the claim form witnessing the signature of the appellant. It is apparent that the appellant had forged Mr Cassidy's signature on the form. Mr Cassidy said that (referring to the police), "they're going to know that that signature is not mine". He referred to copies of various documents of him which were in the possession of the police from which they would know that the signature on the form was not his. The following conversation then ensued:

"MS L VALE: All you've got to say, 'Yes, I was in a hurry but yes, that is my signature but I was in a hurry'.

MR CASSIDY: Yeah, but then if I say I signed it I'm going to get in the shit.

MS L VALE: No, because you only witnessed the fact that I signed it. You only witnessed my signature. If you say, 'No, that's not my signature', right, then they're going to do me.

MR CASSIDY: Yeah, but if - - if I say, yes, that is my signature, right, they're going to do me.

MS L VALE: What can they do you for? For witnessing my signature?

MR CASSIDY: Accomplish [sic accomplice]."

37 Later there was a discussion in which the appellant made it clear that if she went down, the police would get Mr Cassidy as well. The following conversation then ensued.

"MR CASSIDY: Exactly, okay, but the thing is I still want to make sure that I'm going to get my stuff from the fucking house soon.

MS L VALE: Okay. Shane - - Shane, I have promised you that when all this is over, right, that you will get everything that I have promised you."

38 Finally, the appellant asked Mr Cassidy to "hang fire for a couple of weeks and be patient". The following then ensued:

"MS L VALE: All the investigation will be over hopefully. They're got around to you again, so that means they're going to get around to me pretty soon and I said to Kate only last week, 'I'm waiting until that has all been to court with Jack and then what they're going to do - - ' this is what I think is going to happen - - they're going to get a search warrant, right, and they're going to come right through the house and that's what I think is going to happen and everything has gone and it's with somebody safe.

MR CASSIDY: Somebody safe? As long as that somebody doesn't decide to rip off my fucking stuff.

MS L VALE: I hope they don't rip off my fucking stuff too, because none of it's insured now, is it? I can't even get insurance on the ... (indistinct) ...

MR CASSIDY: Why?

MS L VALE: Because we haven't got window locks and we haven't got a burglar alarm. They're trying to break you down. They think that they can break you down, okay. You've got to be tough. You've got to hang ... (indistinct) ...

MR CASSIDY: If it continues they are going to break me down because they're going to trip trap me. I can see it now.

MS L VALE: If you come up against something that you're not sure about just say, 'I know what you're asking me, but honestly, I can't remember'. Don't answer to something that you're not sure about. Just say, 'I cannot remember'. They can't do you for not remembering. It's not a crime to forget things because that will be my answer to most of the things. When they asked you if that was your signature on that form, what did you say?

MR CASSIDY: I said, 'I - - I don't know'. I said, 'I assume so'. I said, 'I don't remember signing the fucking thing', but I said, 'If it's - - if my signature is on there, I assume it's my signature'.

MS L VALE: Okay. So, you've already said I can't remember doing it, so you're already saying, 'I can't remember'.

MR CASSIDY: Yeah. Now what they're going to do is, they're going to check by [sic] fucking licence, they're going to check it up against that and they're going to say, 'What, do you change your fucking signature all the time, do you?'.

MS L VALE: If you admit that you didn't sign that form - - I'm going to have a look on that form tonight to see if your signature is on it, right, because I took photocopies of the forms, right and I'll check to see if your signature is on it, and why your signature was on there, that's what I want to know.

MR CASSIDY: It's a witness.

MS L VALE: Okay. Well, you're witnessing to say that that was me signing the form.

MR CASSIDY: Yes.

MS L VALE: Right. If you say that, no, you didn't sign that form, they will then get me for fraud.

MR CASSIDY: Exactly. So, therefore I've got to say that I've signed it.

MS L VALE: You've got to say that you've signed it."

39 It was contended that under s 4(2) of the Listening Devices Act, a person other than a police officer was only able to record and communicate a conversation so long as it was no more than was "reasonably necessary in the public interest or in the course of his duty or for the protection of his lawful interests". This provision, however, only comes into operation if there is non-compliance with the provisions of s 4(1). In the present case, there clearly was such compliance as counsel for the appellant conceded by the abandonment of ground 1 of the grounds of appeal.

40 It was submitted on behalf of the appellant that the admissions made by her in the recorded conversation were involuntary and, therefore, unreliable. In support of this contention, it was submitted that, while Mr Cassidy was a foster son of the appellant and a person who, in ordinary circumstances, would be regarded by her as trustworthy, their relationship was in turmoil. Whatever their relationship may have been in the past, the conversation which took place has the hallmarks of a conversation between equals and in circumstances where, if anything, the person providing advice and guidance was the appellant.

41 Secondly, it was said that Mr Cassidy had been physically violent toward the appellant on a number of occasions before he left her home and that the appellant had in fact obtained a restraining order against him because of his violent disposition. While this may well have been the case, there was no express reference to the past relationship during the course of the conversation and the two dealt with each other, either as equals or as the appellant giving advice to Mr Cassidy.

42 Thirdly, it was submitted that there was every reason for Mr Cassidy to be hostile toward the appellant for he had sided with his foster father and no doubt blamed the appellant for his foster father's convictions and imprisonment. For the reasons already indicated there was nothing in this point.

43 Fourthly, it was said that the appellant was fearful of Mr Cassidy with the consequence that she took her daughter and her new husband with her when she went to meet him at Hillarys. While that may have been the reason why she came accompanied and may explain why Mr Cassidy did not adopt a threatening attitude, there is no suggestion in the course of conversation that the appellant was in any way intimidated by Mr Cassidy.

44 Fifthly, it was suggested that Mr Cassidy's manner during the taped conversation was "to a degree intimidating and took on the form of an interrogation rather than a casual conversation". . I am unable to accept this submission. They were both asking each other questions which were relevant to the investigation.

45 Sixthly, it was submitted that the pressure exerted by Mr Cassidy during the course of the conversation was likely to cause the appellant to speak or tailor her account in some way in order to please him with the likelihood that she might be untruthful in order to placate him. In my opinion, there is no basis whatever for that suggestion.

46 Finally, it was submitted that Mr Cassidy was in a position to entrap the appellant into contradictions and inconsistencies by cross-examining her based upon what he knew about the police investigations. Suffice it to say that it is apparent from an examination of the conversation to which I have referred that there was no suggestion of entrapment to be found in the course of the conversations.

47 In my opinion, there is no basis in the present case for the submission that the statements made by the appellant in the course of the relevant conversation with Mr Cassidy were involuntary in the sense that there was any element of compulsion, duress or overbearing of the appellant's will. In my opinion, there was nothing to suggest that the incriminating statements made during the course of conversation were made otherwise than in the exercise of a free choice whether to speak or remain silent.

48 Alternatively, it was submitted that the evidence should have been excluded in the exercise of the discretion of the trial Judge on the basis that it was unfair to admit the evidence. As Toohey, Gaudron and Gummow JJ said in their joint judgment in R v Swaffield, supra, (at 189), the discretion to exclude at confessional statement may be exercised or, although the statement was made voluntarily, it should be excluded in the exercise of discretion. Exclusion in the exercise of discretion would be justified for any one of three reasons referred to by Toohey, Gaudron and Gummow JJ in Swaffield, par 52 at 189, namely:

(1) it would be unfair to the accused to admit the statement;

(2) for public policy reasons, it would be unacceptable to admit the statement into evidence, notwithstanding that the statement was made voluntarily and its admission would work no particular unfairness to the accused; or

(3) the probative value of the statement was outweighed by its prejudicial effect.

49 The unfairness against which an exercise of the discretion is intended to protect an accused may arise because the conduct of the preceding investigation produced a confession which is unreliable but also, because no confession might have been made if the investigation had been properly conducted. If, by reason of the manner of the investigation, it is unfair to admit evidence of the confession, whether because the reliability of the confession had been made suspect, or for any other reason, that evidence should be excluded. The unfairness in this context is concerned with the right of an accused to a fair trial, which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement sought to be relied upon: Van der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656 at 666 per Wilson, Dawson and Toohey JJ. See also Duke v The Queen [1989] HCA 1; (1989) 180 CLR 508 at 513 per Brennan J. It is apparent that such things as trickery, misrepresentation, unlawful detention and other factors may justify the rejection of evidence of a confession, but the fact that an impropriety occurred does not carry the consequence that a voluntary confession must necessarily be excluded. As Brennan J said in Duke v The Queen at 513:

"The effect of the impropriety in procuring the confession must be evaluated in all the circumstances of the case."

50 When cross-examined about her question of Mr Cassidy, "We're not wired for sound are we?", the appellant made it clear in her cross-examination that this was just a comment she made because, "You know, it just looked funny the way he was walking". In other words, she was not tricked or lulled into any sense of false security because any fear she had that he might in fact have been wired for sound was allayed by his denial. This was not a case of trickery in the relevant sense. Likewise, it was not a case in which it could be said that the police infringed the appellant's rights by arresting her for the purpose of questioning. It is clear that the statements made by the appellant during the course of the conversation with Mr Cassidy were made in the exercise of a free choice to speak or be silent.

51 In the exercise of discretion to reject evidence on the ground of unfairness, the relevant competing public requirements must be weighed against each other. On the one hand, there is the desirability of bringing to conviction those who commit criminal offences. On the other hand, there is a public interest in the protection of individuals from unlawful and unfair treatment. A conviction obtained unlawfully or unfairly may be obtained at too high a price: R v Ireland [1970] HCA 21; (1970) 126 CLR 321 at 334 - 335 per Barwick CJ (with whom McTiernan, Windeyer, Owen and Walsh JJ agreed). In my opinion, this is not a case in which the evidence should have been excluded on the ground of unfairness in relation to the way in which the admissions in the course of the tape-recorded conversation were made.

52 There remains the policy discretion. As has been seen, Toohey, Gaudron and Gummow JJ considered that the notion of compulsion was not an integral part of the fairness discretion and played no part in the policy discretion. They considered that it was no great step to recognise an approach which looked to the freedom of the accused to choose to speak to police and the extent to which that freedom had been impugned. Similarly, it may be said that similar considerations arise where a person, acting as an agent of police, secretly records a conversation. Questions of the policy discretion arise. While there may be no unfairness involved, the criterion for the exercise of discretion stated in Swaffield at [91] at p202 by Toohey, Gaudron and Gummow JJ, was whether, having regard to the means by which the confession was elicited, the evidence had been obtained at a price which was unacceptable, having regard to prevailing community standards. In the present case, the confession was obtained under very similar circumstances to those which applied in Pavic. This was not a case in which admissions were made by the appellant in the course of what amounted to an interrogation by Mr Cassidy, but which were made in the context of a conversation which concerned them both and, in respect of which, Mr Cassidy had a legitimate area of concern regarding the request made to him by the appellant that he should be prepared to testify on her behalf that the signature which she forged on the relevant insurance claim was in fact his genuine signature. In my opinion, evidence in this case was not obtained unlawfully or unfairly. The circumstances under which the evidence was obtained do not lead to the conclusion that the conviction was "obtained at too high at price". In my view, in particular, there was no relevant impact upon the right to choose whether or not to speak to such an extent that the lie about being wired, in the context of this case, involved obtaining admissions at too high a price. The reason for the appellant agreeing to meet with Mr Cassidy was because she had received lots of telephone calls from him with pleas for money and goods from the house when he was trying to find out what had happened to his property.

53 To the extent that there was an element of deceit involved in the present case, it is important to bear in mind what was said in Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 at 47 by Mason CJ, Deane and Dawson JJ, namely:

"The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional or creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate, notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity. It is neither practicable nor desirable to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances ..."

54 An example of the kind of subterfuge which was referred to in Ridgeway occurred in Green v The Queen where an undercover police officer pretended to be a "hitman" for the purpose of obtaining evidence that the accused intended to procure a professional killer to murder an intended victim. In Swaffield at [155] at 220, Kirby J, who dissented from the majority, acknowledged that:

"Subterfuge, ruses and tricks may be lawfully employed by police, acting in the public interest (Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 at 37; R v Christo [1992] QB 979 at 989; cf Rothman v The Queen [1980] INSC 175; (1981) 1 SCR 640 at 697). There is nothing improper in these tactics where they are lawfully deployed in the endeavour to investigate crime so as to bring the guilty to justice."

55 His Honour went on to say at [155] at 220 - 221:

"The critical question is not whether the accused has been tricked and secretly recorded. It is not even whether the trick has resulted in self-incrimination, electronically preserved to do great damage to the accused at the trial. It is whether the trick may be thought to involve such unfairness to the accused or

otherwise to be so contrary to public policy that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value."

56 The lie in the present case, such as it was, did not give rise to any pressure or give rise to any false state of affairs.

57 It is significant that, at the trial, no objection was made to the admission of the tape-recorded conversation either on the basis that it was involuntary or that it should have been excluded at the discretion of the trial Judge because of unfairness, any relevant policy considerations, or that its prejudicial effect outweighed its probative value.

58 In my opinion, no reason has been demonstrated for this Court to interfere with the exercise of the discretion vested in the trial Judge to exclude the evidence of the conversation between the appellant and Mr Cassidy. In this respect, it is important that counsel for the appellant conceded that the appellant did not say that anything which she had said during the course of the conversation with Mr Cassidy was not correct or misleading by reason of any pressure she was under. The appellant did not say either of those things.

59 IPP J : I have read the reasons of his Honour the Chief Justice. I am in agreement with those reasons and have nothing further to add.

60 WALLWORK J : I agree with the reasons of the Chief Justice in this matter. There is nothing I wish to add.