R v Kilincer (No. 2)

1. [1]

   JOHNSON J: By an indictment dated 4 November 2020, the Accused, Kubilay Kilincer, is charged that, on 11 December 1995, at Blacktown in the State of New South Wales he did murder Hasan Dastan.

The Present Application

1. [2]

   Following committal for trial to this Court, the Accused makes application by Amended Notice of Motion filed on 15 February 2021 for an order that the purported admissions made by him on 29 January 2020 be excluded under ss.84, 85, 90 and 137 Evidence Act 1995 (NSW).

2. [3]

   The evidence sought to be excluded by the Accused arose from a police covert investigation referred to colloquially as a scenario investigation or “Mr Big” or “Big Boss” investigation. As will be seen, this investigatory method has been considered by courts in Australia on a number of occasions. In Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39, Gleeson CJ (at [1]) observed succinctly that, in the course of a “Mr Big” investigation, the appellants “were tricked by undercover police officers, posing as criminals, into confessing”.

3. [4]

   I will return to what has been said by courts about this investigatory method later in the judgment.

The Pretrial Hearing

1. [5]

   The Court undertook a pretrial hearing to determine the objection raised by the Accused on 15, 16 and 17 February 2021.

2. [6]

   Tendered by the Crown was a folder containing a range of documents relevant to the Accused’s objection (Exhibit PTA).

3. [7]

   In addition, the officer-in-charge, Detective Senior Constable John Mastrobattista, gave evidence at the pretrial hearing (PT17-41). During the course of that hearing, audio and video recordings of the conversation on 29 January 2020 were played in Court (Tabs 13 and 14, Exhibit PTA).

4. [8]

   The Accused did not give evidence or adduce evidence at the pretrial hearing.

5. [9]

   Counsel for the Crown and the Accused had furnished written submissions in advance of the hearing with counsel addressing orally by reference to the evidence adduced at the pretrial hearing (PT41-118).

6. [10]

   A date for the trial of the Accused has not been set in recognition of the fact that the ruling of the Court on the present application will play a very significant part in determining whether the charge against the Accused proceeds to trial.

Factual Background

1. [11]

   The deceased, Mr Dastan, died on the morning of 11 December 1995. Mr Dastan was born in February 1943 and was 52 years old at the time of his death. The cause of death was severe blunt trauma to the head and face with extensive skull and facial bone fractures. There was also evidence of blunt trauma to the chest (page 360, Exhibit PTA).

2. [12]

   At the time of his death, the deceased owned and operated an automotive workshop at Blacktown. The deceased starting working at the workshop in 1989 and purchased the business in 1990.

3. [13]

   The deceased lived in Fairfield Heights with his wife, Sultan Dastan, and their youngest son, Ertan (then 11 years old). There were two older children of the marriage (then aged 24 and 25 years) who each lived locally, but had moved out of the family home.

4. [14]

   In early or mid-1995, the Accused (who was born in November 1961) was hired by the deceased as a transmission mechanic. The Accused worked fulltime for the deceased (six or seven days a week) and was the deceased’s recognised employee.

5. [15]

   In December 1995, the Accused lived at an address in Quakers Hill, about a five-minute drive from the workshop. The Accused lived with his wife, Gulser (“Lisa”) Kilincer, and his four daughters (then aged 13 years, five years, three years and nine months).

6. [16]

   For the purpose of this judgment, it is not necessary to recite in detail the matters addressed in a lengthy Crown Case Statement (Tab 1, Exhibit PTA).

7. [17]

   It is sufficient to observe that on 11 December 1995, the deceased was subjected to a severe attack to his head and face causing very grave injuries and death. The murder occurred in the workshop so that the body of the deceased was located in the vicinity of a vehicle, tools and other equipment otherwise contained in the workshop.

8. [18]

   Photographs of the crime scene revealed a metal pipe in the mouth of the deceased with a large pool of blood beneath his head and a sledgehammer lying to the left of his head (pages 325-330, Exhibit PTA).

9. [19]

   Under the right arm of the deceased was a bloodstained note that appeared to have a partial shoe imprint on its surface. The handwriting on the note is obscured by blood, but the words might say “You fix my up the other day now I get you done poptov” (pages 17, 346, 364-365, Exhibit PTA).

10. [20]

    The Accused was interviewed by police in 1995 and 1996 concerning the murder and he denied killing the deceased.

11. [21]

    Detective Senior Constable Mastrobattista gave evidence that the murder of Mr Dastan had been the subject of a cold case review in 2009 and 2017 (PT17). By 2018, the Accused was the main suspect and there were no other avenues of investigation, with the investigation having stalled (PT18).

12. [22]

    On 20 March 2018, a covert operation was authorised by the Commander of the NSW Police Undercover Branch at the request of the Unresolved Homicide Unit. There was no controlled operation certificate with respect to the operation, as it was never intended that there be any criminality in any of the scenarios (PT18).

13. [23]

    Between 7 February 2019 and 29 January 2020, approximately 48 deployments were conducted targeting the Accused as part of this covert operation (Tab 2, Exhibit PTA).

14. [24]

    The covert operation culminated in a meeting between an undercover officer ([redacted] or the “Big Boss”) and the Accused in a hotel room on 29 January 2020 in which the Crown alleges that the Accused made admissions to the murder of the deceased. It is this conversation which is the subject of the present objection by the Accused.

The Covert Investigatory Strategy Used in This Case

1. [25]

   The strategy used involved what is sometimes described as a “Big Boss” or “Mr Big” scenario played out over a number of months leading to a conversation in which it is alleged that admissions were made. The general nature of operations of this type have been considered in a number of decisions including Tofilau v The Queen; R v Weaven (Ruling No. 1) [2011] VSC 442; Lauchlan v State of Western Australia [2008] WASCA 227; R v Cowan; Ex parte Attorney General (2016) 1 Qd R 433; [2015] QCA 87; R v Simmons; R v Moore (No. 2) (2015) 249 A Crim R 82; [2015] NSWSC 143; R v Fesus (No. 2) [2015] NSWSC 1467; R v Jelicic [2016] SASC 57; R v Taylor [2016] QSC 116 and Deacon v R (2019) 282 A Crim R 303; [2019] NTCCA 21.

2. [26]

   The strategy involves undercover operatives (“UCOs”) making contact with the suspect, building a rapport with him and then introducing and involving the suspect in the work of a fictitious organisation or syndicate for which the UCOs worked, which was involved in various forms of criminal and corrupt conduct. Fictitious crimes and scenarios are undertaken as part of this process.

3. [27]

   The suspect is led to believe that the syndicate has sufficient influence to make a criminal investigation “go away” and the operation culminates in meeting with the “Big Boss” who indicates that he would assist the suspect, but could only do so if the suspect tells the truth about the crime which the suspect is believed to have committed.

4. [28]

   The “Mr Big” investigatory strategy was summarised by Gummow and Hayne JJ in Tofilau v The Queen (at [26]) in the following way:

5. [29]

   In Tofilau v The Queen, Callinan, Heydon and Crennan JJ described the strategy as follows (at [219], footnotes omitted):

6. [30]

   Although Kirby J dissented in the outcome in Tofilau v The Queen, his Honour summarised helpfully the features of the investigatory strategy under consideration in that appeal. It will become apparent that these features were replicated broadly in the case of the present Accused. Kirby J said (at [165], footnotes omitted):

7. [31]

   The decision in Tofilau v The Queen involved consideration of common law principles before Victoria enacted the Evidence Act 2008 (Vic). It is, of course, the language of the Evidence Act 1995 (NSW) which is to be applied on the present application: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 39 at [10], [88]. However, what was said in Tofilau v The Queen has provided considerable guidance when considering objections to evidence, arising from the “Mr Big” investigatory strategy, taken under the Evidence Act 1995 (NSW) and under corresponding legislation in other jurisdictions in Australia.

8. [32]

   To the extent that the “Mr Big” investigatory method uses trickery and deception, Gleeson CJ observed in Tofilau v The Queen (at [5]) that the “use of undercover police operations always involves deception” and that “all forms of covert surveillance…involve a kind of deception".

9. [33]

   In the circumstances under consideration in Tofilau v The Queen, Gleeson CJ observed (at [17]) that “the deception practiced upon them was not such as was likely to elicit a false confession”. Gleeson CJ observed as well (at [18]) that it was significant that “the appellants thought they were talking to criminals, not police officers” and that “deception is a very common method of seeking to obtain confessions from people suspected of crime”.

10. [34]

    With respect to the use of psychological pressure in this context, Gleeson CJ said (at [19], footnotes omitted):

11. [35]

    With respect to an argument based upon the suggested infringement of a person’s “right to silence”, Gleeson CJ said (at [21]):

12. [36]

    Gummow and Hayne JJ pointed to the absence of duress, coercion and intimidation in the circumstances under consideration in Tofilau v The Queen (at [81]):

13. [37]

    With respect to issues of pressure and suggested impropriety, Gummow and Hayne JJ said (at [113]):

14. [38]

    When considering the issue of inducements, Callinan, Heydon and Crennan JJ observed (at [323]) that “each appellant lacked reasonable grounds for thinking that the undercover officers had lawful authority to investigate [the suspected offence]” and that “the only reasonable belief which the appellants could have had about those persons was that they were gangsters, not authorised police officers”.

15. [39]

    Concerning the issues of deception and manipulation, Callinan, Heydon and Crennan JJ observed (at [347]) that “there are innumerable examples of confessions being admitted despite the confession having been generated by deception”.

16. [40]

    With respect to the use of pressure and the absence of threats, intimidation and violence, Callinan, Heydon and Crennan JJ said (at [375]-[376]):

17. [41]

    Reference should be made to the “cautionary note” at the end of the judgment of Callinan, Heydon and Crennan JJ (at [418]):

18. [42]

    As will be seen, the approach of the majority in Tofilau v The Queen has been called in aid in rejecting objections to alleged admissions obtained using the “Mr Big” investigatory strategy made by reference to ss. 84, 85, 90 and 137 Evidence Act 1995 (NSW) (or its equivalent in other Australian jurisdictions): R v Weaven (Ruling No. 1) at [32]-[41]; R v Simmons; R v Moore (No. 2) at [60]; R v Fesus (No. 2) at [205]; Deacon v R at [35]-[48].

19. [43]

    In R v Jelicic, Peek J noted the similarities between cases using the “Mr Big” investigatory method and said (at [13]-[16], footnotes omitted):

20. [44]

    In Deacon v R, Grant CJ, Southwood J and Riley AJ referred (at [58]) to the statement of Peek J in R v Jelicic (at [16]) and then continued at [59]:

21. [45]

    These statements of courts in other cases provide a helpful background to consideration of the objections taken in the present case. As will be seen, the recurring features of “Mr Big” investigations identified in earlier cases were apparent as well in the case of the Accused.

22. [46]

    It is now appropriate to turn, in some detail, to what occurred in 2019 and 2020 in the “Mr Big” covert investigation involving the Accused.

Steps in the “Mr Big” Scenario Concerning the Accused Between February 2019 and January 2020

1. [47]

   The details of the covert investigation are set out in the Crown Case Statement (pages 36-44, Exhibit PTA). It is appropriate to set out some features of the scenario development in the latter part of 2019, to place in context the conversation between “Mr Big” and the Accused, which took place and was recorded on 29 January 2020.

2. [48]

   Between February and May 2019, a relationship developed between the Accused and the various UCOs acting as members of the syndicate.

3. [49]

   [redacted]

4. [50]

   [redacted]

5. [51]

   [redacted]

6. [52]

   [redacted]

7. [53]

   [redacted]

8. [54]

   [redacted]

9. [55]

   [redacted]

10. [56]

    [redacted]

11. [57]

    [redacted]

12. [58]

    [redacted]

13. [59]

    [redacted]

14. [60]

    [redacted]

15. [61]

    [redacted]

16. [62]

    Detective Senior Constable Mastrobattista gave evidence that payments in the total sum of $3,450.00 were made to the Accused during the course of the covert operation (PT19). In addition, costs totalling $807.00 were paid for items including a flight, meals, cigarettes and gifts (PT19).

Press Conference on 28 January 2020

1. [63]

   On 28 January 2020, the Commander of the Homicide Squad addressed the media at a press conference, together with members of Mr Dastan’s family. The purpose of the press conference was to announce an increase in the reward for information relating to the murder of the deceased, which had previously stood at $100,000.00. The new reward for information was set at $1 million. No suspect or person of interest was nominated during the press conference.

2. [64]

   Several television news channels ran stories that evening covering the increase in the reward. It is evident from that coverage that, subsequent to the press conference, media personnel had attended the Accused’s home address in an effort to speak to him about the matter. Detective Senior Constable Mastrobattista stated that media outlets did this of their own volition and there was no co-ordination between police and the media in this respect (PT21, 40).

Events on 29 January 2020 Leading to the Conversation Between the Accused and the “Mr Big”

1. [65]

   The following morning (at 10.47 am on 29 January 2020), the Accused contacted “[redacted] by text message, requesting he “come around for coffee” (page 85, Exhibit PTA).

2. [66]

   [redacted]

3. [67]

   [redacted]

4. [68]

   [redacted]

Conversation Between the Accused and “Mr Big”

1. [69]

   [redacted]

2. [70]

   It is appropriate to set out in some detail the summary of the conversation as contained in the Crown Case Statement (pages 37-44, Exhibit PTA). The images and sound during the conversation in the hotel room were recorded in their entirety. The extract from the Crown Case Statement has been edited to the extent that any entries serve to identify any UCO (other than by the assumed names used in the covert operation) with this approach being consistent with orders made by the Court on 15 February 2021 pursuant to s.34 Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW).

3. [71]

   The summary of the conversation between the Accused (referred to as “Tom”) and [redacted] (described as “Mr Big”) on 29 January 2020 is contained in paragraphs 171-192 of the Crown Case Statement. As will be seen, the Accused moved from a position of denial of the murder of Mr Dastan to making admissions later in the conversation.

4. [72]

   The early part of the conversation is summarised as follows (paragraphs 171- 186):

5. [73]

   Some way into the conversation, the Accused took a toilet break within the hotel room. When the Accused left the toilet and rejoined “Mr Big”, the Accused’s demeanour and responses in the conversation took a different turn and he made what the Crown says are admissions concerning the murder of Mr Dastan.

6. [74]

   I have kept in mind that the Crown does not intend to adduce opinion evidence from [redacted] concerning the demeanour of the Accused during the conversation. The Crown accepts that, if the evidence is allowed, it would be a matter for the jury at trial to assess the demeanour of the Accused as depicted in the video and audio recording of the conversation.

7. [75]

   However, having assessed the video and audio recording of the conversation, I express the view (for the purpose of this ruling) that the manner, appearance and words of the Accused when he made admissions seemed genuine. The Accused became upset in a manner that seemed unfeigned. The Accused’s presentation at this point of the conversation did not have the appearance of acting or pretence in what he said and how he said it. The Accused was not detained in the hotel room. When he returned from the bathroom, the Accused spoke to [redacted] in an emotional way as he made admissions. If the Accused merely wanted to tell [redacted] that he had committed the crime to get him off his back, the Accused could have made admissions in a non-emotional way to bring the process to an end. This is not what happened. It would be open to a jury to so conclude.

8. [76]

   The summary contained in the Crown Case Statement continued (at paragraphs 187-190):

9. [77]

   In the middle of the evening, [redacted] and the Accused took a break (paragraph 191):

10. [78]

    [redacted] Once again (for the purpose of this ruling), I note that the tone and content of the Accused’s contributions to the conversation appeared to indicate a relaxed approach which was not consistent with a person who had just fabricated a story in his discussion with [redacted]. It would be open to a jury to so conclude.

11. [79]

    During the course of the coffee break conversation, the Accused said at one point, “[redacted] seems nice” (page 243, Exhibit PTA). Soon after, the Accused said, “We had a big talk” (page 244) and, a little later, “I feel so relaxed after talking to [redacted] (page 255). By this time, of course, the Accused had made admissions concerning the murder of Mr Dastan.

12. [80]

    The Accused returned to the hotel room and the conversation with [redacted] continued (paragraph 192):

Arrest of the Accused on 29 January 2020 and Subsequent Police Interview

1. [81]

   The Accused was arrested in the hotel room shortly after the conversation with [redacted] on 29 January 2020 (PT31).

2. [82]

   When informed he was arrested for the murder of Hasan Dastan, the Accused said, "I only said that so they can help me, I didn't do anything, trust me, he just pushed and pushed" (PT32-33).

3. [83]

   After his arrest, the Accused was conveyed to Blacktown Police Station where he participated in an electronically recorded interview with police. During that interview, the Accused said, amongst other things:

4. [84]

   During the course of the conversation with [redacted] on 29 January 2020, the Accused made a drawing which he was shown and signed during the later police interview (PT33-34; Exhibit PTB).

Physical and Forensic Evidence

1. [85]

   Having regard to submissions made concerning aspects of the physical and forensic evidence, it is appropriate to note the following features of the forensic and expert evidence as summarised in the Crown Case Statement (page 47, Exhibit PTA):

2. [86]

   Insofar as the Accused referred in the conversation with [redacted] to having thrown a “diff” at the deceased during the commission of the crime, Detective Senior Constable Mastrobattista stated that no “diff” (differential) could be seen in the crime scene photographs, nor was a “diff” seized or retained by police (PT34-35).

3. [87]

   Detective Senior Constable Mastrobattista stated that a wheel hub assembly and a brake assembly were visible in the crime scene photographs, but he had no information whether those items had blood on them nor whether they had been examined for fingerprints (PT35; page 330, Exhibit PTA). The blood and hair of the deceased was detected on the sledgehammer and radiator depicted in the crime scene photographs (PT35-36; page 330, Exhibit PTA).

4. [88]

   Insofar as the Accused referred in the conversation with [redacted] to using two pipes, Detective Senior Constable Mastrobattista said that one pipe only was depicted in the crime scene photographs, this being the pipe in the mouth of the deceased (PT36, page 344, Exhibit PTA).

5. [89]

   Insofar as a ball joint remover was referred to by the Accused in the conversation with [redacted] Detective Senior Constable Mastrobattista was informed by the deceased’s son that there had been two ball joint removers in the deceased’s workshop (PT36).

6. [90]

   In cross-examination, Detective Senior Constable Mastrobattista stated that the only additional evidence obtained as part of the cold case reviews was the unknown male DNA profile located on the note found at the crime scene (PT38- 39).

The Alleged Admissions of the Accused Relied Upon by the Crown

1. [91]

   The principal alleged admissions made by the Accused during the conversation on 29 January 2020 with [redacted] relied upon by the Crown as going directly to the Accused’s responsibility for the murder, are as follows (with page references to the transcript of the conversation which is contained at Tab 5 of Exhibit PTA):

Alternative Bases for Exclusion of Alleged Admissions

1. [92]

   The Accused seeks the exclusion of the alleged admissions made on 29 January 2020 upon the following alternative bases:

Relevant Statutory Provisions

1. [93]

   The word “admission” is defined in the Dictionary to the Evidence Act 1995 (NSW) as follows:

2. [94]

   Sections 84 and 85 Evidence Act 1995 (NSW) provide as follows:

3. [95]

   The term “investigating official” is defined in the Dictionary to the Evidence Act 1995 (NSW) in the following way:

4. [96]

   Section 90 Evidence Act 1995 (NSW) provides:

5. [97]

   Section 137 Evidence Act 1995 (NSW) states:

6. [98]

   Reference should be made as well to s.189 Evidence Act 1995 (NSW) which provides:

Some Features of the Conversation Between [redacted] and the Accused on 29 January 2020

1. [99]

   A summary of the challenged conversation was set out earlier, drawn from the Crown Case Statement. When setting out those extracts, I made certain observations about the images and sounds contained in the recordings of the conversations (see [75], [78]-[79] above).

2. [100]

   Given submissions made by the parties concerning parts of the conversation of 29 January 2020, it is appropriate to refer expressly to portions of the conversation. Amongst other things, complaint was made by Senior Counsel for the Accused concerning the use of pressure, the use of leading questions by [redacted] and what was described as “gratuitous concurrence” on the part of the Accused.

3. [101]

   It should be kept in mind that the Accused had not met [redacted] before this meeting. The Crown submitted that this aspect was significant in assessing the change in attitude of the Accused from denials to the making of admissions to the murder of Mr Dustan.

4. [102]

   Early in the conversation, the Accused said “My missus is stressed, I’m stressed, I don’t know what to do” (page 97, Exhibit PTA).

5. [103]

   The Accused said that he had made contact for a meeting that day “for help … from you guys” (page 98).

6. [104]

   The conversation proceeded with the Accused maintaining that he did not commit the murder (page 100 and following).

7. [105]

   The general approach of [redacted] as the conversation continued, reflected the strategy observed in other cases where the “Mr Big” investigatory method was used (see [26]-[30] above).

8. [106]

   For example, at one point, [redacted] said “So please don’t, please don’t, how can I put this very politely, don’t play me for a fool” to which the Accused responds “No, I’m not, honestly I’m not” (page 115).

9. [107]

   At another point, consistent with the “Mr Big” investigatory method, [redacted] said to the Accused “I have the people. We’ve done it before, we’ll do it again. But the only time we finish it is when that last piece of the puzzle comes into play” (page 120).

10. [108]

    Soon after, [redacted] made clear again that all “information” was needed to be given to [redacted] the corrupt police officer who would make the case go away (page 125):

11. [109]

    The Accused continued with his denial. [redacted] pressed the Accused for the “truth”, saying (128):

12. [110]

    [redacted] said that he had spoken to [redacted] who had “managed to get a hold of a heck of a lot of information … so there are reasons why I sit here and say, no, I don’t believe you there are reasons why I sit here and say, I’m missing the last piece of the puzzle” (page 143).

13. [111]

    As noted earlier, the point was reached where the Accused said that he wished to go to the toilet (pages 181-182):

14. [112]

    When the Accused returned from the toilet, he commenced to make admissions. The two men sat close to each other and the Accused appeared emotional and, at times, cried as he told [redacted] that he “did it” (pages 183-184).

15. [113]

    [redacted] posed a series of open or non-leading questions to the Accused as the conversation continued and admissions were made (pages 184-191).

16. [114]

    The Accused (“Tom”) sighed and had a drink of water and the following was said (page 191):

17. [115]

    Soon after, the Accused explained why he did not tell [redacted] what had happened earlier, in the course of which the Accused referred to his wife and daughter (page 193):

18. [116]

    [redacted]: used further open or non-leading questions in the conversation and the Accused said that he threw the “diff” at the deceased (page 195).

19. [117]

    [redacted] asked open questions in which the Accused told him about washing his clothes after killing the deceased (page 197).

20. [118]

    Soon after, the following was said (pages 199-200):

21. [119]

    The following exchange was relied upon by the Crown as being inconsistent with “gratuitous concurrence” of the Accused’s part (pages 201-202):

22. [120]

    Immediately before taking a coffee break, during which the Accused was to see the other syndicate members, the following was said (page 207):

23. [121]

    During the coffee break, the Accused seemed relaxed and expressed his gratitude to [redacted] in his discussions with the others (see [79] above).

24. [122]

    Upon resumption of the conversation after the coffee break, the Accused discussed aspects of the killing of Mr Dastan. In the course of discussion concerning the use of the pipe during the commission of the crime, there was some use of leading questions by [redacted] (pages 215-216):

25. [123]

    The following was relied upon by Mr Ozen SC as a clear example of “gratuitous concurrence” on the part of the Accused (page 217):

26. [124]

    The discussion concerning the use of the pipe continued. The Crown submitted that the two men may be at cross purposes at this point in the conversation. It was submitted for the Accused that this was a further example of use of leading questions and “gratuitous concurrence” (pages 218-219):

27. [125]

    In further discussion concerning use of a sledgehammer, [redacted] asked a clearly leading question, but the Accused did not appear to acquiesce in his answer in a manner indicative of “gratuitous concurrence” (pages 221-222):

28. [126]

    The conversation continued in a flowing manner and touched upon money, the deceased’s wallet and the pipes (pages 224-227).

29. [127]

    The Accused said he knew nothing of the note left with the body of the deceased (pages 227-231). In the course of this discussion, [redacted] told the Accused that the writing on the note was the Accused’s writing (page 231). This was not true. [redacted] pressed the Accused about the note and the Accused, whilst appearing to think about the topic, said he did not know about the note (page 232). A discussion took place about the deceased’s wallet (pages 233- 235).

30. [128]

    The overall impression of this part of the conversation is that the Accused appeared, at times, to be searching his memory. He did not agree with all propositions raised with him by [redacted] whether by use of non-leading or leading questions.

31. [129]

    As the conversation drew to an end, the following was said (pages 238-239):

32. [130]

    The conversation ended. Thereafter, the Accused was arrested for the murder of Mr Dastan (see [81] above).

Objection Under s.84 Evidence Act 1995 (NSW)

1. [131]

   Mr Ozen SC, for the Accused, made clear that the s.84 objection was not based upon the use, per se, of a covert operation involving scenario evidence. He acknowledged that, since the decision in Tofilau v The Queen, this method of investigation did not itself give rise to a s.84 objection.

2. [132]

   Rather, Mr Ozen SC submitted that the objection by the Accused was founded upon the particular circumstances in his case, and the content of the conversation with [redacted] on 29 January 2020, which itself provided a foundation for objection to be taken to admissibility of the conversation.

3. [133]

   Mr Ozen SC submitted that conduct that may cause the exclusion of admissions under s.84 need not be physical conduct or a physical threat, but can include mental or psychological pressure: Higgins v R [2007] NSWCCA 56 at [26]. Put shortly, the Accused relied upon the following features in support of the s.84 objection:

4. [134]

   It was submitted for the Accused that it is not necessary for him to show that his will was overborne (as might have been necessary under the common law) with the only requirement being for the Court to consider under s.84 whether or not the admission, and its making, were “not influenced” by the conduct identified: R v Ul-Haque (2007) 188 A Crim R 3348; [2007] NSWSC 1251 at [119]; Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299; [2010] NSWCA 34 at [241].

5. [135]

   It was submitted that the Accused need not establish that the conduct “caused” or “provoked” the admission. Rather, the test is a much less stringent one as to whether the conduct “influenced” it. The oppressive conduct need not be the sole reason for the admission, but can be only one of a number of factors that together caused the admission to be made: Higgins v R at [26]; R v Sumpton [2014] NSWSC 34 at [138].

6. [136]

   It was submitted that the conduct of [redacted] influenced the making of the admissions, with concerted and sustained psychological pressure upon the Accused falling within the scope of “oppressive conduct” so that the admissions should be excluded.

7. [137]

   The Crown submitted that the use of scenario evidence of this type does not give rise to a proper basis for its exclusion. Reliance was placed upon decisions in jurisdictions where objection was taken under the local equivalent of s.84, and where evidence arising from use of the “Mr Big” scenario was admitted, in particular R v Weaven (Ruling No. 1) and Deacon v R.

8. [138]

   By reference to various features of the present case, the Crown submitted that the circumstances of this case did not give rise to a basis to exclude the evidence under s.84.

9. [139]

   Resolution of the s.84 objection calls for application of that provision and associated principles to the circumstances of the present case. As noted earlier (at [31]), the Court is assisted in this respect by statements in Tofilau v The Queen where the High Court considered the “Mr Big” scenario investigatory strategy together with concepts analogous to those of oppression and unfairness arising for consideration where objection is made under the Evidence Act 1995 (NSW).

10. [140]

    The term “oppressive” is not defined in the Evidence Act 1995 (NSW). Section 84 confers no discretion: R v Ye Zhang [2000] NSWSC 1099 at [38].

11. [141]

    In R v Heffernan; R v Peters (Court of Criminal Appeal, 16 June 1998, unreported), Smart J (James and Sperling JJ agreeing) said:

12. [142]

    Section 84 does not require the isolation of a single reason or single incident of conduct provoking the confession. There may be a number of factors working together: R v Ye Zhang at [44]; Higgins v R at [26].

13. [143]

    It has been said that the concept of oppression should not be limited to physical or threatened physical conduct and can encompass mental and psychological pressure: Higgins v R at [26]; Director of Public Prosecutions (Vic) v Hou (2020) 62 VR 1; [2020] VSCA 190 at [149].

14. [144]

    On a s.84 objection, the attention of the Court is to be directed to the circumstances in which the admissions were made, excluding evidence that would substantiate or contradict the admissions: R v Ye Zhang at [52]; R v Sumpton at [132]; R v Tarantino (No. 6) [2019] NSWSC 1174 at [154].

15. [145]

    The relevant test under s.84 is not whether the will of the Accused was overborne: Habib v Nationwide News Pty Ltd (at [237]; R v Sumpton at [133].

16. [146]

    It has been said that the only question posed by s.84(1) is whether the “admission and [its] making” were “not influenced by” conduct of the nature identified: Habib v Nationwide News Pty Ltd at [241]. If oppressive conduct is one of the factors that caused the admission to be made or, more accurately, if the Crown has failed to negative such conduct as one of those factors, then the evidence is inadmissible under s.84: R v Ye Zhang at [44]; Habib v Nationwide News Pty Ltd at [239]; R v Sumpton at [126].

17. [147]

    As the Crown accepted, the burden of proof on this issue is carried by the Crown on the balance of probabilities: s.142(1) Evidence Act 1995 (NSW).

18. [148]

    As Tofilau v The Queen makes clear (see [28] to [42] above), the very nature of the “Mr Big” investigatory strategy involves the use of pressure over a period of time, in circumstances where a denial of guilt by the suspect is made which is replaced ultimately by an alleged confessional statement. The “Mr Big” investigatory strategy involves exhortation of the suspect to tell the truth, so that a significant measure of persuasion plays an important part in the process: Tofilau v The Queen at [75].

19. [149]

    Although the Victorian equivalent to the Evidence Act 1995 (NSW) did not apply at the time of Tofilau v The Queen, it is noteworthy that Callinan, Heydon and Crennan JJ (at [322](d)) observed that “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.”

20. [150]

    In R v Weaven (Ruling No. 1), Weinberg JA overruled an objection to the admissibility of alleged admissions arising from a “Mr Big” scenario investigation. In determining that the evidence ought not be excluded under Evidence Act 2008 (Vic), Weinberg JA stated at [31]-[34]:

21. [151]

    I gratefully adopt and apply the reasoning of Weinberg JA to the present case. In my view, the features of the “Mr Big” investigatory strategy, and the conversation between [redacted] and the Accused on 29 January 2020 are close to those considered in R v Weaven (Ruling No. 1) and support a conclusion that the conduct of [redacted] should not be stigmatised as “oppressive” for the purpose of s.84 Evidence Act 1995 (NSW).

22. [152]

    In Deacon v R, the Court of Criminal Appeal of the Northern Territory (Grant CJ, Southwood J Riley AJ) overruled an objection under s.84 Evidence (National Uniform Legislation) Act 2011 (NT) to the admissibility of admissions arising from a “Mr Big” scenario investigation. The Court said at [32]-[33] (footnotes omitted):

23. [153]

    The Court continued at [49]-[50] (footnotes omitted):

24. [154]

    Noting features of the covert operation leading up to the conversation with “Mr Big”, the Northern Territory Court of Appeal observed that it was not conducted in a manner which created a coercive environment, and the fact that the operation involved deception and trickery was neither unlawful nor unusual for reasons explained in Tofilau v The Queen. The involvement of the applicant was held to be free and voluntary, with this being reflected in the fact that the applicant declined to participate in some activities due to other commitments: Deacon v R at [60].

25. [155]

    The Court observed further in Deacon v R (at [61]) that there was no infringement of the applicant’s rights, for the reasons identified in Tofilau v The Queen, and that the applicant had freely and voluntarily spoken to police about the disappearance of the deceased and not demonstrated any intention to maintain the right to silence or the privilege against self-incrimination.

26. [156]

    The Court observed further in Deacon v R (at [62]) that there was nothing in the applicant’s personal characteristics which made him susceptible to coercion or oppression, with the trial Judge having characterised him as having considerable life experience.

27. [157]

    In relation to the conversation with “Mr Big”, the Court found in Deacon v R that:

28. [158]

    I have found the analysis of the Northern Territory Court of Appeal in Deacon v R to be of assistance in determining the present objection.

29. [159]

    In determining whether oppressive conduct for the purpose of s.84 arises in this case, it is appropriate to have regard to features of this case concerning the Accused. I keep in mind, for the purposes of the s.84 objection, that the truth or otherwise of the admissions is not relevant.

30. [160]

    The covert operation in 2019 and 2020 involving the Accused was summarised earlier (at [48]-[68]). The events and conversation which took place on 29 January 2020 were also summarised (at [69]-[84] above). In addition, extensive extracts from the conversation of 29 January 2020 were set out to assist a reader to obtain an understanding of the flavour and content of what was said (see [99]-[130]).

31. [161]

    I accept the submission of the Crown that the following features are to be found in this case:

32. [162]

    In accepting the above features as being applicable to this case, I have taken into account the evidence adduced at the pretrial hearing which, of course, did not include evidence from the Accused himself. There have been pretrial objections taken to “Mr Big” scenario evidence where the accused person has given evidence on the voir dire: R v Taylor at [10]. Of course, there was no obligation upon the Accused to give evidence at the pretrial hearing.

33. [163]

    However, the point of this observation is that there was no evidence adduced of any suggested vulnerability or susceptibility on the part of the Accused during the course of the covert investigation in 2019-2020 which would bear upon the objection to the evidence. Mr Ozen SC made clear in submissions that there was no reliance upon any particular features of the Accused with the objection being “all about psychological pressure” (PT108).

34. [164]

    The involvement of the Accused throughout this period in 2019-2020, as disclosed in the evidence, indicates that he was a mature and intelligent individual who was quite capable of making decisions concerning his involvement in that period in a range of activities, and with there being no evidence of any mental or health-related vulnerability which may bear upon the question of the admissibility of the alleged admissions.

35. [165]

    I accept the submission of the Crown that the following features are apparent in the meeting between the Accused and [redacted] on 29 January 2020:

36. [166]

    The question to be considered on the s.84 objection is whether the Court is satisfied on the balance of probabilities that the alleged admissions made by the Accused were not influenced by oppressive conduct. The truth or otherwise of the admission is not relevant to this objection.

37. [167]

    It is clear that trickery and deception were used in events which culminated in the making of the admissions. However, there was no unlawful conduct nor was there any violence, intimidation or threat used. The Accused understood he was speaking to a criminal. There was a considerable degree of pressure used in the conversation, but it was open to the Accused to end the conversation and leave at any time.

38. [168]

    I do not consider that “oppressive” conduct under s.84 arose in this case. The reasoning of Weinberg JA in R v Weaven (Ruling No. 1) and the Northern Territory Court of Appeal in Deacon v R, concerning the application of s.84 in similar contexts, has assisted me in reaching this conclusion.

39. [169]

    I am satisfied on the balance of probabilities that the making of the admissions by the Accused on 29 January 2020 was not influenced by oppressive conduct for the purpose of s.84 Evidence Act 1995 (NSW).

40. [170]

    Accordingly, I decline to exclude the alleged admissions upon that basis.

Objection Upon the Basis that the Admissions Were Unreliable Under s.85 Evidence Act 1995 (NSW)

1. [171]

   Mr Ozen SC did not seek to rely upon s.85(1)(a), as it was clear that undercover officers (such as [redacted] did not fall within the definition of “investigating official” (see [95] above).

2. [172]

   However, reliance was placed upon s.85(1)(b) with the submission being made that the undercover officers (including [redacted] fell within the class of other persons who were “capable of influencing the decision whether a prosecution” of the Accused should be brought and continued. Mr Ozen SC pointed to the observation of Callaway JA in R v Tofilau (No. 2) (2006) 13 VR 28; [2006] VSCA 40 at [9]-[10] as to the possible application of s.85 to a “Mr Big” investigatory strategy case.

3. [173]

   Mr Ozen SC submitted that the words of s.85(1)(b) left open the defence construction and that words contained in extraneous material, such as the Explanatory Note to the Evidence Amendment Bill 2007 (NSW) could not determine this question of construction at the expense of the words in s.85: R v Young (1999) 46 NSWLR 681; [1999] NSWCCA 166.

4. [174]

   It was submitted that the truth or otherwise of the admissions was not a relevant matter for the Court to consider for the purpose of s.85: R v Rooke (Court of Criminal Appeal, 2 September 1997, unreported). However, it was submitted that the actual terms of the admissions can be considered on the question of their reliability for the purpose of s.85(2): R v Helmhout [2000] NSWSC 185 at [38].

5. [175]

   Mr Ozen SC submitted that there were many discrepancies between what the Accused admitted to [redacted] and what the forensic and other objective evidence indicated had been done to the deceased. It was submitted, as well, that there were examples of what was described as “gratuitous concurrence” on the part of the Accused in the course of the conversation with [redacted] on 29 January 2020.

6. [176]

   It was submitted that the Court can have regard to the manner in which the questioning took place, and what was said to be the obvious pressure that was brought to bear on the Accused, in order to elicit the admissions. It was submitted that the circumstances surrounding the making of the admissions (which included the use of a sophisticated scenario, the calculated scaling up of pressure in the preceding days, the use of media releases and the offer to make the charge “disappear” if only the Accused would make an admission), taken together, gave rise to a “legitimate question” as to whether these circumstances might have adversely affected the admission: R v Esposito (1998) 45 NSWLR 442 at 458-459.

7. [177]

   If the Court accepted that the combination of factors relied upon gave rise to this legitimate question, it was submitted that it was for the Crown to establish why the admissions should be admitted in accordance with s.85(2) Evidence Act 1995 (NSW).

8. [178]

   It was submitted for the Accused that the Court should exclude the admissions under s.85.

9. [179]

   The Crown submitted that s.85(1)(a) has no application in this case because [redacted] was not an “investigating official” for the purpose of that provision. It was submitted that he was “a police officer who was engaged in covert investigations under the orders of a superior”.

10. [180]

    The Crown submitted that the purpose of s.85(1)(b) is to cover circumstances in which an admission is made, not only during the course of official questioning, but also before the admission is made by another person who is capable of commencing or continuing the prosecution of the charged person. It was submitted that s.85(1)(b) had no application to this case. In this regard, the Crown relied upon the Explanatory Note to the Evidence Amendment Bill 2007 (NSW).

11. [181]

    With respect to the submissions made for the Accused concerning the reliability of the admissions, the Crown responded to those submissions by reference to particular topics, including what was said by the Accused concerning the sledge hammer, the pipe in the mouth, the “diff” (differential), position of the deceased, the use of two pipes, the deceased’s wallet and the note found at the scene.

12. [182]

    The Crown noted that there were some areas of difference or conflict between the account given by the Accused in the admissions and circumstances discernible in the forensic or objective evidence. In this respect, the Crown referred, amongst other things, to the passage of time (some 24 years) between the killing of the deceased and the conversation with the Accused on 29 January 2020.

13. [183]

    The Crown submitted, as well, that there were features discernible from the forensic or objective evidence which tended to support the version given by the Accused to [redacted] on 29 January 2020, including the time of the murder, the fact that three or more blows were struck, the fact that the shop was closed up before the Accused left, the washing of the Accused’s clothes and the robbing of the till.

14. [184]

    Although the Crown’s primary submission was that s.85 had no application to this case as [redacted] was not “an investigating official” for the purpose of the provision, it was argued, in any event, that the submission for the Accused rose no higher than a series of factual arguments, some of which pointed to inconsistency with the account given by the Accused to [redacted] but others disclosing consistency with circumstances discernible from the forensic and objective evidence.

15. [185]

    The Crown submitted that the Court should decline to exclude the admissions under s.85 Evidence Act 1995 (NSW).

16. [186]

    Unlike s.84, s.85 Evidence Act 1995 (NSW) is confined to criminal proceedings. Section 85 has been described as the provision particularly directed to unreliable confessions: Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 at [41].

17. [187]

    Section 85 was amended by the Evidence Amendment Bill 2007 (NSW) following the decision in Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12.

18. [188]

    The Explanatory Note to the Evidence Amendment Bill 2007 (NSW) stated with respect to the amendments to s.85 (my emphasis):

19. [189]

    As a result of the 2017 amendment, s.85(1)(a) does not apply where a police officer is “engaged in covert operations under the orders of a superior”. It is clear that the undercover operatives involved in the covert operation concerning the Accused did not fall within the definition of “investigating official” for the purpose of s.85(1)(a) (see [95] above). It was common ground between the Crown and the Accused that s.85(1)(a) could not apply to this case.

20. [190]

    The live issue is whether s.85(1)(b) can apply to this case. The Crown submitted that, as a matter of construction, a case involving admissions allegedly made to an undercover operative could not fall within s.85(1)(b). Mr Ozen SC submitted that such a scenario was capable of falling within s.85(1)(b), with reference being made to R v Lieske (2006) 166 A Crim R 213; [2008] ACTSC 97.

21. [191]

    There is force in the Crown submission that the express amendment in 2007 to the definition of “investigating official” to exclude covert operatives from s.85(1)(a) should lead to a construction that undercover police are excluded from the term “another person” in s.85(1)(b). This construction is supported by the Explanatory Note to the Evidence Amendment Bill 2007 (NSW) which stated that the amendment to s.85 “removes covert operatives from the ambit of the provision”. The Explanatory Memorandum to the Evidence Amendment Bill 2008 (Cth), which made the same change, stated that the new provision removed covert operatives from the ambit of the provision and cited the judgment of Callaway JA in R v Tofilau (No. 2):

22. [192]

    In construing s.85 Evidence Act 1995 (NSW), the Court may have regard to the Explanatory Note as extrinsic material for the purposes identified in s.34(1)(a) or (b) and (2)(e) Interpretation Act 1987 (NSW). A construction of s.85 that would promote the purpose or object underlying the provision should be preferred to a construction that would not promote that purpose or object: s.33 Interpretation Act 1987 (NSW). Similar provisions apply to the construction of Evidence Act 1995 (Cth): ss.15AA and 15AB(1) and (2)(e) Acts Interpretation Act 1901 (Cth).

23. [193]

    It may be accepted that extrinsic materials cannot be relied upon to fill a gap in a statute itself: Director of Public Prosecutions (Vic) v Walters (2015) 49 VR 356; [2015] VSCA 303 at [57]; Pearce, “Statutory Interpretation in Australia”, 9th edn, 2019, paragraph 3.10. The task of the Court is to determine what Parliament meant by the words used, not to determine what Parliament intended to say: R v Young at [5]. Extrinsic materials cannot be relied upon to displace the clear meaning of the text, however the meaning of the text requires consideration of the context, which includes the general purpose and policy of the provision, and in particular, the mischief it is seeking to remedy: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory)

24. [194]

    In my view, the proper construction of s.85 indicates that, where admissions were made to a police officer engaged in covert investigations under the orders of a superior (as in the present case), s.85(1) has no application.

25. [195]

    However, it is not necessary to express a concluded view on that issue. In my view, the circumstances of this case are incapable of falling within s.85(1)(b) in any event.

26. [196]

    The defence submission would require a construction that s.85(1)(b) can apply where “another person” is a criminal, whom the Accused knew or reasonably believed was capable of influencing the decision whether a prosecution should be brought, because that criminal was able, with the assistance of a corrupt police officer, to (in some way) destroy evidence or act to “kill off” a prosecution (PT56-57).

27. [197]

    I do not accept that, properly construed, s.85(1)(b) can apply in such circumstances. The defence submission is not supported by anything said in R v Lieske.

28. [198]

    By analogy, the reasoning of Callinan, Heydon and Crennan JJ in Tofilau v The Queen (at [38] above) assists on this point. In stating that “the undercover operatives were not persons in authority”, their Honours said (at [323]) that each appellant lacked reasonable grounds for thinking that the undercover officers had lawful authority to investigate the offence – the only reasonable belief which the appellants could have had about those persons “was that they were gangsters, not authorised police officers” and that they call upon “the power of evil” and not “the power of the State”.

29. [199]

    Accordingly, I do not consider that s.85 can be relied upon by the Accused in the circumstances of this case.

30. [200]

    It is appropriate, however, to consider the balance of the s.85 objection, in case my conclusion with respect to the applicability of s.85 is incorrect.

31. [201]

    If the circumstances in s.85(1)(a) or (b) are engaged, the Court moves to the issue posed by s.85(2) – whether the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. In this regard, the Court will have regard to the non- exhaustive list of factors contained in s.85(3).

32. [202]

    If an issue of reliability arises legitimately, the onus lies on the Crown to establish on the balance of probabilities that the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected: s.142 Evidence Act 1995 (NSW); R v Esposito at 460.

33. [203]

    The focus of s.85 is the reliability of the admissions in the circumstances in which they were made, as distinct from the “voluntariness” of the admissions: R v Bartle & Ors (2003) 181 FLR 1; [2003] NSWCCA 329. Generally speaking, s.85 is directed to the circumstances in which an admission was made and any impact these circumstances may have on the reliability or otherwise of the admission: R v Ye Zhang at [49]-[51].

34. [204]

    It has been said that the issue under s.85 is not concerned with the question whether the admission was, in fact, made or whether it was true or untrue, each of these questions being for the jury: s.189(3) Evidence Act 1995 (NSW); R v Esposito at 460; cf. R v Ye Zhang at [51]-[52].

35. [205]

    Even if s.85 was available as an avenue of objection in this case, I am not persuaded that the admissions allegedly made by the Accused are unreliable for the purpose of that provision.

36. [206]

    It must be kept in mind that the conversation on 29 January 2020 was taking place some 24 years after the events in question. Some factual aspects referred to in the admissions do not appear consistent with facts emerging from the forensic and objective evidence, but others do appear to be consistent. These are, in my view, issues for a jury to consider at trial.

37. [207]

    It may be said that, unlike some other “Mr Big” scenario cases, there is no feature of the admissions allegedly made by the Accused which only the killer would know: R v Cowan; Ex parte Attorney General at [45]; R v Weaven (Ruling No. 1) at [43]; R v Jelicic at [4], [87]; R v Taylor at [98]. However, existence of such a feature is not a precondition to admissibility nor a requirement for a conclusion that admissions are capable of being found reliable by a tribunal of fact.

38. [208]

    To the extent that the s.85 objection was said to encompass the concept of “gratuitous concurrence” in the manner in which the Accused answered some of [redacted] questions, it is appropriate to address that issue.

39. [209]

    The phrase “gratuitous concurrence” has been used in the context of the power to restrict the use of leading questions in cross-examination under s.42 Evidence Act 1995 (NSW): R v Xie (No. 13) [2015] NSWSC 2125 at [9]; R v A2; R v KM; R v Vaziri (No. 14) [2015] NSWSC 1544 at [9]; R v Droudis (No. 8) [2016] NSWSC 1263 at [14], by reference to the observations of Heydon J in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [117].

40. [210]

    The use of the term in the present objection appears closer to its use in the context of ss.85 and 90 Evidence Act 1995 (NSW) objections in Bin Sulaeman v R [2013] NSWCCA 283. In that case, objection was taken to admissions made in what was described as “a cross-language and cross-cultural exchange” so that responses to questions may have been “little more than an act of gratuitous concurrence”: Bin Sulaeman v R at [78].

41. [211]

    In the course of discussing the appeal, R A Hulme J (Beazley P and Bellew J agreeing) observed (at [85]) that “care is required in considering responses given in the course of an exchange between persons who do not speak the same language and who emanate from different cultural backgrounds”.

42. [212]

    A similar scenario is familiar to criminal courts in cases where Aboriginal persons are interviewed by police with the possibility of agreement being expressed to propositions put in questions even where the answers are not factually correct: R v Anunga (1976) 11 ALR 412; Mildren, “Redressing the Imbalance Against Aboriginals in the Criminal Justice System” (1997) 21 Crim LJ 7. In Morgan v State of Western Australia [2011] WASCA 185, Pullin JA (McLure P and Hall J agreeing) summarised the position at [109]:

43. [213]

    It may be observed immediately that such circumstances are far removed from those discernible in this case. At times, the Accused sought clarification and disagreed with the leading questions put to him (see [125] above).

44. [214]

    If the defence submission based upon “gratuitous concurrence” is intended to suggest that the Accused was driven to a position where he was required to make untruthful admissions because of the pressure and persistence of [redacted] questioning, I do not consider that the evidence points in this direction in this case. I have kept in mind, in this respect, the statements made by the Accused to police after the conversation with [redacted] in which he asserted that he had been “pushed” to make admissions and that he had pretended to cry as part of an act (see [82]-[83] above). I observe that similar features arose in R v Fesus (No. 2) at [117]. I have set out, in some detail, the terms of the conversation and some of the criticisms made by the defence in support of the objections. I do not consider the evidence indicates that the Accused was, in effect, worn down so that he agreed gratuitously with propositions put to him by [redacted] The Accused agreed with some, disagreed with others and said he could not recall some matters which had occurred some 24 years earlier.

45. [215]

    I am not persuaded that the concept of “gratuitous concurrence” assists the Accused in his objection.

46. [216]

    The admissions should not be excluded under s.85 Evidence Act 1995 (NSW).

Objection Asserting Unfairness Under s.90 Evidence Act 1995 (NSW)

1. [217]

   Mr Ozen SC submitted that the circumstances in which the admissions were made were such that it would be unfair to the Accused to allow the Crown to adduce evidence of them at the trial. He submitted that the reliability of the submissions is an important, although not the sole consideration when weighing up this discretionary objection: Em v The Queen at [72]-[73].

2. [218]

   Whilst acknowledging that it is permissible for police to engage in a form of trickery to deceive a suspect into making an admission, it was submitted that the police conduct went too far in this case. Even leaving aside what was said to be the pressure in the days leading up to the admissions being made, it was submitted that the exchange in which the Accused finally made the admissions was such as to adversely impact not only the reliability of the admissions, but also the question whether they were voluntarily made.

3. [219]

   It was submitted for the Accused that, by engaging in the covert operation leading up to what was described as the “long interrogation” by [redacted] the police effectively circumvented the right of the Accused to decide whether to make an admission.

4. [220]

   It was submitted that the admissions were influenced by an inducement offered to the Accused and were made after a long period of repeated denials, and only after the Accused was repeatedly told that, unless he told [redacted] something other than what he had been saying, there would be adverse consequences for the Accused.

5. [221]

   In these circumstances, it was submitted that the admissions were not voluntarily made: cf McDermott v The Queen (1948) 76 CLR 501 at 506-507, 511, 513; [1948] HCA 23. It was submitted that the will of the Accused was overborne by the actions of [redacted] during this conversation and that the evidence fell within the scope of evidence that is deemed unreliable as a class: Tofilau v The Queen at [16].

6. [222]

   Whilst conceding that the element of deception, of itself, would not give rise to the exercise of discretion under s.90, it was submitted that the situation in this case went beyond mere deception. Reference was made once again to the length of time of the covert operation and the psychological pressure on the Accused culminating in the conversation with [redacted] on 29 January 2020. It was submitted that the actions of police breached the “common law accusatorial principle” and that the admissions should be excluded, relying upon Sidaro v R [2020] ACTCA 11.

7. [223]

   The Crown submitted that the burden of demonstrating that it would be unfair to the Accused to use the evidence rests on the Accused and that the Accused had failed to discharge this burden.

8. [224]

   The Crown pointed to other “Mr Big” scenario investigation cases where objections under s.90 had been rejected: R v Weaven (Ruling No. 1) at [39]- [52]; R v Simmons; R v Moore (No. 2) at [52]-[68].

9. [225]

   The Crown responded in some detail to the factual submissions made for the Accused in support of this objection.

10. [226]

    It was submitted that the Court should decline to exclude the admissions under s.90 Evidence Act 1995 (NSW).

11. [227]

    It has been said that the language of s.90 expresses the concept of unfairness in the widest possible form: Em v The Queen at [50], [177].

12. [228]

    Section 90 confers a discretion to exclude evidence if the requirements of the provision are made out. Section 90 is to be contrasted with ss.84 and 85, each of which requires exclusion if the Crown is unable to establish the necessary basis for admission: R v Ye Zhang at [66].

13. [229]

    The burden of demonstrating that it would be unfair to use the evidence rests on the Accused: Em v The Queen at [63].

14. [230]

    The Court is assisted in this case by the approach adopted by Weinberg JA in R v Weaven (Ruling No. 1) and by Hamill J in R v Simmons; R v Moore (No. 2) where s.90 objections were unsuccessful in cases where the Crown sought to adduce evidence of admission made in a “Mr Big” investigation case.

15. [231]

    In R v Weaven (Ruling No. 1), Weinberg JA said at [39]-[40] (footnotes omitted):

16. [232]

    In R v Simmons; R v Moore (No. 2), Hamill J found that he could take into account the reliability of the admissions as part of considerations relevant to a s.90 objection, but concluded (at [131]) “whilst some parts of the admissions may well be unreliable, a properly instructed jury might discriminate and accept parts of the admissions made by the accused” so that it was “a case where the reliability of the confession is ultimately an issue for the tribunal of fact”.

17. [233]

    With respect to reliability, the Crown submitted that the defence argument that the Accused falsely confessed to details of the murder as a result of suggestions made by [redacted] is inherently implausible in the circumstances of this case. Mr Ozen SC pointed to parts of the conversation in support of an argument that the Accused had answered by way of “gratuitous concurrence”. I repeat the conclusions reached concerning “gratuitous concurrence” when addressing the s.85 objection (see [208] to [215] above).

18. [234]

    To the extent that there are factual aspects of the admissions which may be said to be inconsistent with other known facts, I adopt the approach taken by Hamill J in R v Simmons; R v Moore (No. 2) and express the view, for the purpose of the s.90 objection, that these are matters for a jury to determine at the trial. As noted earlier, there are areas of factual inconsistency and areas of factual consistency emerging from an examination of the admissions so that the evidence is not all one way in this respect.

19. [235]

    Further, the passage of some 24 years between the killing of the deceased and the making of the alleged admissions in January 2020 is pertinent to this aspect of the case.

20. [236]

    With respect to voluntariness, the analysis in Tofilau v The Queen points to the admissions made by the Accused being voluntary. In earlier conclusions expressed in this judgment, I have identified aspects of the conversation between [redacted] and the Accused which fortify a conclusion that the alleged admissions made by the Accused were voluntary.

21. [237]

    To the extent that the defence submission in support of the s.90 objection is based upon the suggested circumvention of the right of the Accused to decide whether to make an admission, I agree with the analysis of Weinberg JA in R v Weaven (Ruling No. 1) at [41]-[45] and [50]-[51], based upon Tofilau v The Queen. This argument does not assist the Accused in the present case.

22. [238]

    I accept the Crown submission that, in circumstances where undercover police are excluded from the definition of “investigating official”, there was no obligation to caution the Accused.

23. [239]

    The Accused does not specify any alleged breach of a legal right or identify any unlawfulness on the part of the police. The recurring complaint relates to the duration of the deception during the covert operation and the lead up to the conversation with [redacted] on 29 January 2020, together with what was said during that conversation itself with emphasis upon repeated denials by the Accused before an admission was made.

24. [240]

    In any event, as the Crown has noted, the Accused had previously waived his right to silence and provided a statement on the day of Mr Dastan’s death and had engaged in two interviews thereafter in 1995 and 1996 with police in each of which he provided an exculpatory account.

25. [241]

    With respect to submissions based upon a suggested inducement giving rise to s.90 unfairness, the defence submission is not assisted by what was said in Tofilau v The Queen. In the present case, any inducement was, for all practical purposes, given by a person whom the Accused understood to be an influential criminal who could corruptly make the murder investigation relating to the Accused “go away”, but that he (the criminal) needed the truth from the Accused to be able to do so.

26. [242]

    With respect to the suggested breach of the common law accusatorial principle, I accept the Crown submission that the Accused is not assisted by Sidaro v R. The circumstances of that case are far removed from the present case. In any event, I consider that an argument based upon the common law accusatorial principle does not assist the Accused.

27. [243]

    The Accused has failed to demonstrate that it would be unfair to use the evidence of the alleged admissions made on 29 January 2020 against him at his trial.

28. [244]

    I decline to exclude this evidence under s.90 Evidence Act 1995 (NSW).

Evidence Act 1995 (NSW)

1. [245]

   For the purpose of the s.137 objection, Mr Ozen SC conceded that the admissions were substantially probative evidence in this case. It was submitted, however, that other features of the evidence tended to contradict a number of the admissions so that the probative value of the admissions in this case was less than that identified, for example, in R v Fesus (No. 2).

2. [246]

   It was submitted that the admissions in the present case were not entirely consistent with the facts that can otherwise be established from other evidence so that the danger of unfair prejudice to the Accused, having heard that the Accused admitted to murdering the deceased, was significant in this case. It was submitted that the jury may ignore or minimise any of the incorrect detail in the Accused’s admissions.

3. [247]

   Accordingly, it was submitted that the evidence should be excluded under s.137.

4. [248]

   The Crown submitted that admissions made by the Accused in this case are of very high probative value and of very significant importance to the Crown case. It was noted that the blunt fact is that, despite the Accused being the main suspect for 25 years, no charge has been laid arising from this murder until the present admissions were made by the Accused.

5. [249]

   With respect to the defence submission that a jury may give undue weight to the admissions and ignore or minimise any of the incorrect detail or inconsistencies in the admissions, the Crown submitted that the nature of the asserted inconsistencies lay well within the grasp of the typical jury to assess with relevant assistance from the trial Judge. It was submitted that an argument as to potential misuse by the jury appears to have been rejected by Weinberg JA in R v Weaven (Ruling No. 1) at [61] and appears to be inconsistent with the approach expressed in Tofilau v The Queen at [290].

6. [250]

   The Crown submitted that the probative value of the evidence is not outweighed by the danger of unfair prejudice and the admissions should not be excluded under s.137.

7. [251]

   Section 137 Evidence Act 1995 (NSW) refers to the term “probative value”. That term is defined in the Dictionary to the Evidence Act 1995 (NSW) as meaning “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”.

8. [252]

   The test of relevance is a relatively undemanding one. The enquiry for the purpose of s.55 Evidence Act 1995 (NSW) concerns how the evidence might affect findings of fact. The possible use to which the evidence might be put is to be taken at its highest: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [43]-[44]. No assessment of the credibility or reliability of the evidence is required: IMM v The Queen at [39].

9. [253]

   Section 137 is expressed in terms of an evaluative judgment mandating exclusion: IMM v The Queen at [15]. Section 137 requires the probative value of the evidence to be weighed against the danger of unfair prejudice to the Accused. This requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the facts in issue: IMM v The Queen at [47].

10. [254]

    The danger of “unfair prejudice” in s.137 directs attention to the risk that evidence may be misused in some unfair way by the tribunal of fact, so that (in this case) the jury may not comply with judicial directions as to its use: Papakosmas v The Queen at [91]; R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA 494 at [163]-[165].

11. [255]

    As McHugh J observed in Papakosmas v The Queen at [91], evidence is not unfairly prejudicial merely because it makes it more likely that an accused person will be convicted.

12. [256]

    There must be a risk that the evidence will damage the defence case in some unacceptable way, such as provoking some irrational, emotional or illogical response, or by giving the evidence more weight than it truly deserves: BJS v The Queen (2013) 231 A Crim R 537; [2013] NSWCCA 123 at [51]; Director of Public Prosecutions (Vic) v Hou at [95].

13. [257]

    The existence of competing inferences (or alternative interpretations) available to be drawn from the proposed prosecution evidence, plays no part in the assessment of probative value for the purpose of s.137: R v Burton (2013) 237 A Crim R 238; [2013] NSWCCA 335 at [196].

14. [258]

    The admissions allegedly made by the Accused on 29 January 2020 are of very substantial probative value. They involve admissions on his part that he killed the deceased with the admissions capable of constituting complete admissions to the crime of murder.

15. [259]

    In my view, the arguments which the Accused will seek to raise by reference to suggested inconsistencies between the admissions and factual matters identified in the forensic and objective evidence, are of a type which a properly instructed jury will well understand and be able to determine on the merits.

16. [260]

    As noted earlier in this judgment, there are areas of suggested inconsistency and also consistency between the admissions and other evidence which will form part of the totality of evidence which a jury will be called upon to assess, in reaching a verdict with respect to the Accused upon the charge of murder.

17. [261]

    In my view, there is no realistic prospect of a properly directed jury misusing the evidence of the admissions in this case.

18. [262]

    Accordingly, I decline to exclude the evidence of the admissions under s.137 Evidence Act 1995 (NSW).

Conclusion and Orders

1. [263]

   The Accused has not succeeded in any of his objections to the admissibility of the alleged admissions arising from the conversation with [redacted] on 29 January 2020.

2. [264]

   Before concluding the judgment, I should advert to one further matter. The Crown drew attention (PT103) to the observations of Callaway JA in R v Tofilau (No. 2) (at [6]-[8]) concerning possible directions to a jury in that case (footnotes omitted):

3. [265]

   The Crown accepted (PT103) that directions as stated by Callaway JA at [6] would be appropriate in this case, but stated that the Crown reserved its position concerning the necessity or appropriateness of the directions at [7].

4. [266]

   Now that the Court has determined that the evidence is to be admitted at trial, I record these matters for future reference in advance of the trial of the Accused.

5. [267]

   I make the following orders: