R v Rumsby

1. [1]

   The accused, Mr Craig Rumsby, is charged with:

   1. (1)

      the attempted choking of LS [1] with intent to enable him to commit an indictable offence, namely, to have sexual intercourse with LS without her consent, knowing she was not consenting, at Gulgong on 1 January 1998, and

   2. (2)

      the murder of Michelle Bright [2] at Gulgong on or about 27 February 1999.

2. [2]

   The primary defence case is that the accused was not the perpetrator.

3. [3]

   The Crown case is significantly reliant upon admissions alleged to have been made by the accused to undercover police officers on 11 August 2020. The admissions were made in the culmination of an operation using the “Unsolved Serious Crime Undercover Technique” (USCUT), sometimes referred to as a “Mr Big” operation or a “scenario investigation”.

4. [4]

   The accused objects to the evidence, contending that it is inadmissible pursuant to ss 84, 85, 90 and 138 of the Evidence Act 1900 (NSW).

The offences

1. [5]

   The following summary of the offences is drawn from the Crown Case Statement.

2. [6]

   LS was 18 years’ old when she attended celebrations on the eve of the 1998 New Year in the Gulgong town centre. She walked with her boyfriend and other friends to her home in Herbert Street, Gulgong in the early hours of 1 January 1998. A short time after arriving home she arranged to meet a friend on Herbert Street to take delivery of some cannabis. She went out to the street to wait the friend’s arrival while the others remained inside drinking and listening to music.

3. [7]

   LS noticed a male who was barefooted and who she did not know walking towards her. Without warning he grabbed her by the neck with his hand on her throat and used his other hand to hit her in the face. He threw her to the ground, telling her to “shut up, shut up, shut up”. He further struck her to the face. He proceeded to do things indicating an intention to engage in sexual activity. LS screamed out for help. He further struck her and threatened he would kill her.

4. [8]

   LS’s friends were alerted by her screaming and came outside. They saw the accused on top of LS but when he became aware of their presence he got up and ran away towards the town centre. LS’s boyfriend pursued him but lost him after he jumped over a fence.

5. [9]

   Local police were contacted and attended quickly. An officer drove LS and her boyfriend to the police station and on the way they both saw the accused standing on Medley Street and identified him as the perpetrator.

6. [10]

   The accused was spoken to. He was barefooted. He gave police his personal particulars and was allowed to leave.

7. [11]

   LS’s injuries were recorded and photographed at the police station. Later that morning, her boyfriend found in the front yard near where LS was attacked a pair of sandals, an empty Jim Beam can, and a wallet embossed with the name “Craig” containing identification and other documents in the name of the accused. He gave these items to the local police and they were recorded in the Miscellaneous Property Book.

8. [12]

   On 22 April 1998 the wallet and sandals were collected from the Gulgong police station by the accused’s sister on his behalf. She gave to police a letter written and signed by the accused identifying himself as the owner of the property and consenting to his sister collecting it.

9. [13]

   LS commenced to make a police statement but decided not to complete it as she did not want to go to court. Ultimately, she provided a statement in September 2019.

10. [14]

    The Crown Case Statement includes that the attack upon LS has never been publicly reported.

11. [15]

    Ms Michelle Bright was 17 years’ old and lived with her family on Barneys Reef Road, Gulgong. The property is about 3km north of the town centre. Ms Bright attended the local high school and was well known within the small, local community. Gulgong at this time had a population of about 2000 people.

12. [16]

    The accused lived alone on a rural property on Cypress Drive, Yarrawonga which was about 12 minutes’ drive east of Gulgong.

13. [17]

    On Friday 26 February 1999, Ms Bright made arrangements to attend a 15th birthday party at the home of a school friend on Bligh Street, Gulgong. The party was attended by a large number of young people.

14. [18]

    Ms Bright left the party shortly before about 12.30am on Saturday 27 February 1999. She was given a lift and dropped off outside the Commercial Hotel in the town centre. She told the couple in the car that she intended to walk home from there. She was last seen walking down Herbert Street in the direction of Barneys Reef Road. She was reported missing by her mother on Sunday 28 February 1999.

15. [19]

    The body of Ms Bright was found on the afternoon of Tuesday 2 March 1999 in long grass on the eastern side of Barneys Reef Road between the road and the nearby parallel railway line. She was partly naked and face down with her head closest to the road and her feet facing the railway line. Her shirt had been pushed up over her bra. The back of the bra had been torn or cut in two places. Her jeans and underpants were down around her ankles, but her shoes and socks were still on.

16. [20]

    Ms Bright’s jacket and purse were found a short distance from her body, placed neatly on the ground. A button which appeared to have been torn from the jacket was nearby. Her necklace, which had been broken, was found at another location in the grass near the body. There was also a pile of vomit nearby.

17. [21]

    This was in an isolated, flat area surrounded by farmland half-way between the town centre and her family home. The nearest house was 200-300 metres away. There was no street lighting and there would have been very limited passing traffic at the time Ms Bright was attacked.

18. [22]

    Partial decomposition impacted the extent of the post-mortem examination and findings. The forensic pathologist, Dr Botterill, determined Ms Bright was killed by “homicidal violence of an undetermined aetiology”. The crime scene and the displacement of her clothing was suggestive of sexual assault notwithstanding the absence of unequivocal post-mortem findings in that respect. No DNA profile has ever been obtained to assist in identifying the perpetrator.

19. [23]

    The murder received significant media coverage and continued to have a high profile in the media over the years.

20. [24]

    At a coronial inquest in 2009, Dr Botterill expanded upon his opinion as to homicidal violence, saying it was either suffocation (something placed across the mouth) or strangulation with a broad ligature. Either mechanism can leave no discernible lesion, even without decompositional changes. Abrasions to the body were likely caused peri-mortem and the number and kind made accidental infliction unlikely. Dr Botterill agreed that they could have been occasioned by the body being dragged on the ground.

21. [25]

    The coroner found that Ms Bright died at Gulgong on 27 February 1999 from homicidal violence but was not able to determine the cause of her death.

The police investigation

1. [26]

   Initial inquiries by police indicated that very soon after the body of Ms Bright was found the accused moved from the Gulgong area to the western suburbs of Sydney where he remained until he was charged in 2020.

2. [27]

   The accused was first spoken to by police on 1 April 1999 when he was contacted by phone by Mudgee detectives. He provided his contact details. He was interviewed on 17 June 1999 at his home in Cranebrook. He said he was living at his mother’s address at Cypress Drive, Yarrawonga. On the night of the murder he went to the nearby property of a friend, Victor Ellis, where he played cards until 3.00am and then drove home. He was also spoken to about the incident concerning LS but denied any involvement.

3. [28]

   Victor Ellis was spoken to and confirmed that the accused had been at his home on the night of 26 February 1999 but said he left before midnight, possibly as early as 11.30pm.

4. [29]

   The accused was further interviewed by police on 6 December 1999. He maintained the essence of his previous account. He was told of Mr Ellis’ recollection as to the time of his departure and accepted that it “could have been” at that time. He said that when he left, he drove his car, a red XF Ford Falcon, back to his home and remained there.

5. [30]

   The accused met with police at Windsor police station on 13 January 2003 and voluntarily supplied a DNA sample. That was the last time investigating police had spoken to him.

The USCUT operation

1. [31]

   The following summary of the USCUT operation deployed by the police was provided in the written submissions for the Crown: [3]

Caselaw

1. [32]

   There have been a number of cases in which courts have considered the admissibility of evidence derived from an USCUT operation. Applying common law principles, the High Court dismissed appeals by offenders in four discrete cases from Victoria in Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39. It is worth noting at this early point the caution expressed at the end of the judgment of Callinan, Heydon and Crennan JJ at [416]:

2. [33]

   In New South Wales the evidence has been held to have been admissible under provisions of the Evidence Act in at least R v Simmons; R v Moore (No 2) [2015] NSWSC 143; R v Fesus (No 2) [2015] NSWSC 1467; R v Tarantino (No 6) [2019] NSWSC 1174; and R v Kilincer (No 2) [2021] NSWSC 829.

3. [34]

   In other States and Territories, the evidence has also been held to be admissible despite objections in R v Cowan; Ex parte Attorney General (2016) 1 Qd R 433; [2015] QCA 87 (on appeal from R v Cowan [2013] QSC 337); Deacon v The Queen (2019) 282 A Crim R 303; [2019] NTCCA 21; Lauchlan v The State of Western Australia [2008] WASCA 227; R v Jelicic [2016] SASC 57; R v Weaven (Ruling No 1) [2011] VSC 442.

4. [35]

   Neither party identified any case in which the evidence has been held to be inadmissible.

5. [36]

   I gratefully adopt the summary of pertinent aspects of the caselaw provided by Johnson J in R v Kilincer (No 2), the most recent of the decided cases. His Honour first referred [15] to descriptions provided in the various judgments in Tofilau v The Queen of the USCUT (which he referred to as “the Mr Big investigatory strategy”). He then turned to what was said by the judges in that case, and some other cases, which is worth quoting in full:

6. [37]

   Johnson J then observed (at [45]) that “the statements of courts in other cases provide a helpful background to consideration of the objections taken in the present case” because “the recurring features of “Mr Big” investigations identified in earlier cases were apparent as well in the case of the Accused”. The same applies to the present case.

The USCUT investigation in this case

1. [38]

   In 2018 the Unsolved Homicide Team reviewed the case concerning the murder of Ms Bright and identified the accused as a person of interest. In January 2019, Strike Force Mitcham II was formed to further investigate. An USCUT operation was commenced in November 2019.

2. [39]

   Between November 2019 and August 2020, the accused met with undercover police officers (UCOs) who he was given to believe were members of a criminal gang. They engaged the accused in various “scenarios”, carrying out ultimately what he was led to believe was criminal activity. As time progressed the accused became more involved in the activities of the gang. Members of the gang, whose structure was hierarchical, stressed to the accused the necessity of trust, honesty, and loyalty. There was an emphasis on the gang being a form of family. In time, the accused saw himself as a potential member of the gang and he suggested activities that could profit the group.

3. [40]

   The accused was told that the “big boss” of the criminal syndicate was very influential and well connected, including to a corrupt detective. The accused was introduced to the idea there was nothing that could not be fixed. He was also told there was a lot of money to be made by being involved in the gang and there was a lot of work coming up. The accused was consistently told he could leave the gang at any time with no recriminations.

4. [41]

   The detail of these various “scenarios” and interactions with the gang members is set out in Annexure 5 of the Crown material [16] and is further summarised in the written submissions. [17]

5. [42]

   Some matters are worth particular note. On 19 March 2020, during a scenario involving [redacted], the accused was introduced to a UCO posing as a corrupt police detective (UCO 1). UCO 1 [redacted]. The accused was told about a member of the organisation who the boss was going to help [redacted].

6. [43]

   On this occasion and without any prior mention of the subject by any UCO, the accused volunteered that police had previously tried to “pin” the murder of Michelle Bright on him. He said she was a good friend of his and that he had shaved his head when he was informed that police wanted a sample of his hair and DNA. He said he was living in Sydney at the time of the murder, but he had come home to Mudgee the weekend she was killed. He said he returned to Sydney on the Sunday and that he was at a house with a whole family, and they were his alibi. He said he went out and had a barbecue and partied with a friend (Victor Ellis) who lived out near his mum’s home. He went on to say that a “very good friend” of his got murdered, “I’ve known her since she was a baby. That was the deceased Bright … out at Gulgong…. They were accusing me of murdering her. I said, ‘why would I murder her? She’s like a bloody sister to me’.” The accused said her killer had not yet been found by police, and that he had a good alibi. [18]

7. [44]

   On 19 May 2020, there was a scenario in which the accused was shown that there was the opportunity to voluntarily leave the organisation on good terms and with no consequences. A UCO (UCO 2) expressed a desire to leave the organisation for personal reasons: [redacted]. The accused saw how UCO 2 was assured that this was permissible; he could voluntarily leave the organisation on good terms and with no consequences but would always be welcome to return.

8. [45]

   On 15 June 2020, “the boss” (UCO 3) called some of the UCOs to a meeting in [redacted]. One of them was in the company of the accused who met the boss briefly for the first time. The boss told the accused he had heard some good things about the work he had been doing and that he and UCO 4 made a great team.

9. [46]

   This meeting concerned some trouble another UCO (UCO 5) was in, [redacted]. The boss reassured the accused that it was nothing to worry about; “we look after our own”. The message conveyed to the accused was that anything could be sorted out as long as they were open and honest with each other. [Redacted], UCO 1 [redacted] UCO 5 [redacted]. The accused was present and heard about the various arrangements made for UCO 5 to be [redacted].

10. [47]

    During a scenario on 16 July 2020, the accused described owning a red XF Ford Falcon during 1999. He said it was destroyed by fire on Good Friday 1999. Inquiries reveal that “Good Friday” 1999 fell on Friday 2 April 1999, this being the day after the accused was spoken to for the very first time by police in connection with the murder of Ms Bright.

11. [48]

    A scenario that commenced on 13 July 2020 continued on 23 July 2020. It had two parts, [redacted] and the continuation of an earlier scenario that involved [redacted]. The [redacted] scenario was purportedly carried out and at its conclusion the accused was involved in [redacted].

12. [49]

    From 26 July 2020, the accused was involved in several scenarios designed to further [redacted] and, by 4 August 2020, it was at an advanced stage. The events from then on are reviewed below.

13. [50]

    The Crown made the following submissions concerning the outcome of the developmental phase of the USCUT operation: [19]

14. [51]

    As to item (p) and the submission in the penultimate sub-paragraph above, the accused submitted that “whilst it may be readily accepted that the accused acted with enthusiasm and freedom of choice during the course of the USCUT operation (at least prior to 11 August 2020), and that his enthusiasm manifested in displays of initiative such as [redacted], his involvement could hardly be considered to demonstrate any sophistication”. [22]

15. [52]

    Issue was also taken by the accused with the Crown characterising the operation as “all carrot and no stick” because, in what occurred on 11 August 2020, the accused was presented with a choice between making a confession and being imminently arrested and charged with offences including murder. [23]

16. [53]

    On 4 August 2020, UCO 4 picked the accused up at Windsor Riverside Van Park at Wilberforce where the accused lived in a cabin. UCO 4 commented to the accused about a blue car (an unmarked police car) parked nearby which followed them as they drove away. The upshot was that this was reported to a senior gang member (UCO 6, the second in charge) who purported to make an inquiry and then advised that the car was registered to the NSW Police Force State Crime Command. The accused showed a degree of initiative in identifying the registration number and making suggestions as to what should be done. The “big job” for the day was called off.

17. [54]

    During the afternoon of 4 August 2020, investigating police commenced making overt inquiries with family members and associates of the accused. In the meantime, in the course of numerous calls and texts with UCO 4, the accused was told that “they” [i.e. the police] “are looking at you. Your name’s come up in some case”. He told the accused that they could not do anything now; the boss had said that “we can’t do anything if there is heat on one of us, so this has to be fixed before anything goes ahead”. He said that UCO 1 said the police were looking at him (the accused) and he is trying to find out more information. UCO 4 reminded the accused, “You’re in the family brother so we are in this together”.

18. [55]

    Between 5 and 10 August 2020, police continued overt inquiries with family members and associates of the accused. The same unmarked police vehicle, involved in the “compromised” surveillance on 4 August 2020, was parked outside the Wilberforce Riverside Van Park at various times in this period.

19. [56]

    On 5 August, UCO 4 told the accused that UCO 1 had said the blue car belonged to the homicide squad. UCO 4 asked the accused if he had any idea what it was about and he replied that he did not. A few hours later UCO 4 sent a text advising:

20. [57]

    The text exchange that followed included the accused saying:

21. [58]

    On 6 August 2020, UCO 4 sent the following text to the accused:

22. [59]

    Subsequent messages from the accused included reiteration of his innocence.

23. [60]

    On 10 August 2020, police held a press conference at which members of Ms Bright’s family were present. The Commander of the Homicide Squad asked for assistance from the community and announced an increase in reward monies to $1 million.

24. [61]

    Detective Superintendent Doherty mentioned that the murder was thought to be preceded by Ms Bright being sexually assaulted and that police were now looking at possible links to other sexual assaults of young women in the Gulgong area, noting that it was possible that such incidents had not been reported. Mention was also made of a line of inquiry relating to a red XF Ford Falcon station wagon and its possible link with Ms Bright’s murder.

25. [62]

    UCO 4 sent a text to the accused alerting him to the press conference and providing him a link to the NSW Police Force Facebook page containing a video of it. The accused replied, “Yes, I just watched it. It happened after I left.”

26. [63]

    About 20 minutes after sending that text, the accused posted a comment on the police Facebook page, identifying himself by name: “It’s so sad that they haven’t caught her killer years [sic] Michelle was like a sister to me I feel sorry for the family”. He continued professing his innocence in text messages to UCO 4. He was told the following morning, in feigned tones of urgency and gravity, that he was required to come to a meeting with the boss.

27. [64]

    On Tuesday 11 August 2020, the accused was collected by UCO 4 and UCO 7, and they travelled together to an apartment at [redacted]. UCO 4 told the accused that the boss had said that nothing is happening until “this is fixed” and “it’s a lot bigger than what they thought”. The boss wanted to meet personally with him. They entered the apartment at 9.47am and the boss (UCO 3) was waiting with UCO 6. After introductory conversation, the boss told the others to leave so that he could speak alone with the accused.

28. [65]

    Some further general conversation included the accused saying that he was enjoying working with (the UCOs) and the boss spoke with praise about what he had heard. He emphasised a number of times the requirement for “truth, loyalty and honesty”. [26]

29. [66]

    The boss told the accused he was a suspect in two matters, this had brought “heat” onto the family and they have had to stop everything. He offered to help the accused like he helped UCO 5 (see above at [46]) but he could not do that unless the accused was honest with him. [Redacted] UCO 1 [redacted].

30. [67]

    The boss spoke to the accused about the LS assault and encouraged him to be honest. The accused gave an account of his movements that evening. It included that he “ran into someone”, “a female”, and “she started screaming” and then “all the coppers are coming” so “I took off running”. He was spoken to and then he walked home. He did not know why LS had told police that he had tried to rape her. A little while later he said that he did not know if he hit her. [27]

31. [68]

    The boss read to the accused a detailed account of what LS said occurred and told him, “I’d like to think I’m an educated man and I can’t see you fucking beating that without my help”. [28]

32. [69]

    The conversation was then directed to the murder of Ms Bright. The boss referred to the media appeal the previous day and the million-dollar reward offered for information. He reiterated that “if you’re not honest with me, mate, I can’t help you and the fallout of that is, is unfortunately we can’t do any more work together”. [29]

33. [70]

    The accused insisted upon his innocence: for example, “I wish I could tell you the truth but I am tellin’ you the truth. I don’t know nothing’ about it”. [30] The boss was insistent, however, putting to the accused that his claim of having been in Wilberforce was not true as was his claim of having been at the home of Victor Ellis until 3.00am, given Mr Ellis’ statement. He told the accused, “Your alibi’s … blown out of the water completely”. The accused still maintained his innocence, saying repeatedly in a rather emphatic tone, “I didn’t do it”, adding a little later, “I swear it on my dad and mum’s grave I did not do that to Michelle … cause I know how … respected her family was around Ulan and Gulgong”. [31]

34. [71]

    At 11.50am, the boss called UCO 6 and asked him to send UCO 4 back into the room to take the accused for a walk. The accused told UCO 4 that he was even more stressed than before. UCO 4 reassured him, telling him not to stress, but to be honest with the boss who would fix everything.

35. [72]

    The accused was brought back into the room with the boss at about 12:34pm. The boss showed him copies of other police documents and records provided by UCO 1, including a photograph of a red XF Ford Falcon and maps of the Gulgong area, and again encouraged him to be honest.

36. [73]

    The boss continued asking about the murder. After a while the accused began to offer some pertinent details. He remembered there was talk of a party in Gulgong (the one attended by Ms Bright). He agreed he did leave Victor Ellis’ home by about 11.00pm. He then drove to the home of friends, Greg and Marilyn, from where he and Greg’s brother drove into town in the accused’s red XF Falcon sedan and went to the Post Office Hotel. He then went to the Commercial Hotel to speak with the publican and thereby split up with Greg’s brother. He may have left there and walked in a certain direction. However, he claimed to have no memory of what occurred in relation to Ms Bright. The boss suggested it might help if UCO 4 and UCO 7 took him out to Gulgong and the accused agreed that this might jog his memory. [32]

37. [74]

    After some further conversation, the accused began to admit involvement with Ms Bright. He heard footsteps behind him; he hit her with his fist; she fell and was knocked out; he covered her mouth so that she could not breathe until she was not breathing; he panicked and he left. The boss then explored some further details of the incident. [33]

38. [75]

    The boss summoned the other UCOs to return to the room at about 1.58pm. UCO 4 and UCO 7 came and took the accused for another break. The boss resumed the conversation with the accused in the apartment at about 2.23pm. There was clarification of some details of what had occurred in relation to Ms Bright. There was also discussion about travelling to Gulgong for the accused to clarify things. An arrangement was made for the boss, UCO 4, UCO 7 and the accused to travel to the Gulgong area. A UCO was to go to the accused’s home and pack a bag of his clothes and medications. Afterwards the accused would be taken to Mudgee where a chartered plane would fly him to Ballina that night.

39. [76]

    In the course of the car journey to the Gulgong area, the accused identified a wrecking yard at Kingswood where he had sold his Ford XF Falcon after it was damaged by fire on Good Friday, 2 April 1999. They proceeded to Yarrawonga (sometimes referred to by the name Home Rule), where the accused pointed out several locations he visited on the night of Ms Bright’s murder. This included the place where he was living and the homes of Victor Ellis and “Greg and Marilyn”.

40. [77]

    The accused then directed the UCOs to the Gulgong town centre. He identified a property at 7 Railway Street as the home of a friend, Tom Bromley, where he attempted to call his mother after the assault upon LS. [34] He then directed them to the centre of town and pointed out two hotels. [35] From there, they went to a point where the car was stopped and, on foot, he showed the UCOs the location of the assault upon LS. [36] The party returned to the car and the accused directed them to the location where he said he had killed Ms Bright. [37] At each of these locations, the accused provided further details of the two attacks.

41. [78]

    Finally, the accused and UCOs proceeded to Mudgee airport where the accused was arrested.

Admissions made

1. [79]

   The Crown contends that the accused made the following admissions concerning the murder of Michelle Bright. [38] (Items marked with an asterisk are in addition to those referred to be the Crown.)

Evidence of Dr Katie Seidler

1. [80]

   Reports of Dr Katie Seidler, forensic psychologist, dated 7 November 2022 and 30 December 2022 were annexed to two of the affidavits of Mr Toshi Weller-Wong. [39] Provisional psychologist, Ms Simone Tosson, completed psychometric testing with the accused on 24 October 2022 and Dr Seidler interpreted the results.

2. [81]

   In written submissions, counsel for the accused drew attention to the following aspects of the first report (with the relevant paragraph references in the report footnoted). [40]

3. [82]

   The Crown submitted that the history provided by the accused to Dr Seidler should be subject to a limitation pursuant to s 136 of the Evidence Act; that it not be evidence of the truth of the various assertions of the accused set out therein. I do not propose to make such an order but I indicate the way in which I have regard to the history within the report below (at [89]-[98]).

4. [83]

   Reference was made to two aspects of paragraph 4 of the first report but to place them in context I will quote the entire paragraph:

5. [84]

   The Crown referred to the following results of the psychometric testing:

6. [85]

   The Crown also referred to answers provided by Dr Seidler at the end of her first report to questions specifically posed for her. They included:

7. [86]

   The Crown challenged the credibility of the accused’s account to Dr Seidler in that it included the following:

8. [87]

   It was submitted that this was at odds with the accused’s involvement with the operatives in the supposed [redacted], all prior to any question having been raised as to his possible involvement in a murder. In submissions in reply, the accused accepted that this submission by the Crown was “plainly available on the evidence”. [58]

9. [88]

   As to the final quotation from the first report of Dr Seidler appearing in paragraph 116 of the accused’s written submissions (above at [81]), the Crown contended that the audio-visual recording of the meeting with the boss (UCO 3) on 11 August 2020 showed the accused to be “alert, oriented in time, understanding the conversation as it flowed, and being responsive to questions asked and comments made by UCO 3”.

10. [89]

    In relation to Dr Seidler’s opinion that the accused “does not present as someone who is sophisticated enough, either psychosocially or with respect to his verbal intellectual skills, to have successfully navigated the pressure of this situation independently”, the Crown referred to a statement by UCO 4 of 10 January 2023 in which he set out various observations and opinions as to the intellectual capacity of the accused. Objection was taken to this on the basis that it was impermissible lay opinion. I uphold that objection insofar as the statement contains opinions but on a more fundamental basis of relevance in that it would be equally as open to a tribunal of fact to form its own opinions based upon much the same material: Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 at [12]-[13].

11. [90]

    In my fact-finding role in the context of the present issues, I am persuaded by the factual material referred to in the statement of UCO 4 (putting aside the opinions), but even more so by the content of Annexure 8 in the Crown bundle [59] and the general impression I gained from listening to hours of covert recordings over more than two days of the pre-trial voir dire, that the opinions of Dr Seidler may overstate the true position.

12. [91]

    Dealing broadly with Dr Seidler’s opinions, it is difficult to know how much weight to place upon them given they are based rather significantly not only upon the results of psychometric testing but also to some extent on the version of events provided by the accused.

13. [92]

    Dr Seidler said the accused’s account was “confusing and often contradictory and when challenged, his account then shifted”. [60] One example of that might be the accused telling Dr Seidler that he “vehemently believed” the UCOs were only engaged in a legitimate business activity, [redacted]: see above at [86]-[87].

14. [93]

    Another example of confusion is Dr Seidler’s opinion that “it is likely that, at least in part, his motivations in engaging with the operatives can be explained by a desire for acceptance and social inclusion” whereas she had recorded him having told her “he could not account for why he agreed to [the initial approach by a UCO] other than he was focussed on the money he was being offered” and that he made up the admissions to UCO 3 because he was “motivated by the desire to continue being involved with the group so that he could earn more money”. [61]

15. [94]

    In relation to the psychometric testing, doubt as to the accuracy of the version the accused provided Dr Seidler is raised by the results of the Millon Clinical Multiaxial Inventory (MCMI-IV) that suggested “a very high level of disclosure, which is typically associated with a desire for negative impression management, consistent with an exaggeration of personal difficulties”. [62]

16. [95]

    There is also a question as to the reliability of the accused’s responses to interview and to testing where, in addition to her remarks about impression management, Dr Seidler reported that his MCMI-IV profile suggested he was: [63]

17. [96]

    Whether this was a result of the accused’s “negative impression management” or a correct indication of his mental condition is unclear but in either case it raises a question about the reliability of the account he provided Dr Seidler.

18. [97]

    Putting that aspect aside, there is in any event a degree of controversy about the accuracy of the history provided by the accused to Dr Seidler. Evidence, such as the examples from the covert recordings that the Crown claims demonstrate the accused’s initiative, enthusiasm and lack of oppression or freedom of choice, [64] provides a lot of scope for testing the accused as to the history upon which Dr Seidler’s opinions were at least partly based. There was no cross-examination of the accused in relation to these matters as he did not give evidence in the voir dire hearing. In these circumstances, I am very cautious about placing much weight on this history and opinions based partly or completely upon it. Counsel for the accused appears to accept this. [65]

19. [98]

    The same can be said about a conclusion of Dr Seidler that appears to have been influential in her overall formulation, that the accused was a “socially isolated individual”. Whilst there is evidence indicating he had limited social outlets, appeared to want to be liked and seemed to have few friends, [66] there was evidence suggesting it may not have been to the extent portrayed which provides another controversy presently incapable of resolution. [67]

20. [99]

    For completeness, I note that nothing was said in submissions about Dr Seidler’s second report. That is likely explained by the fact that there is nothing significant in it.

21. [100]

    The accused’s documentary material included a report produced in response to a subpoena by Ms Kim Ora, forensic psychologist, dated 28 May 2019. [68] Ms Ora was employed in the Criminal Psychology Unit of the NSW Police Force. The report was prepared for the Unsolved Homicide Unit to send to the undercover branch at the point where the possibility of pursuing an USCUT operation was being considered. A second purpose of the report was to have an assessment of the current risk of sexual offending by the accused if such an operation was to be carried out. [69]

22. [101]

    The accused’s written submissions in reply quoted the following passage from Ms Ora’s report in rebuttal of the Crown’s submission that the accused “had no particular vulnerabilities which were exploited to coercive effect”: [70]

23. [102]

    This does not appear to advance the accused’s case. It would be more to the point to identify the actual conduct of the police in their interactions with the accused. [Redacted], does not establish anything of relevance to the objections raised.

The bases of the objections under the Evidence Act and s 189

1. [103]

   As indicated at the outset, the accused objects to the Crown adducing evidence of the admissions alleged to have been made by him on 11 August 2020 pursuant to s 84, 85, 90 and 138 of the Evidence Act.

2. [104]

   Section 189 of the Evidence Act is concerned with “The voir dire” and subs (3) provides:

3. [105]

   The accused submitted that numerous aspects of his admissions were “demonstrably unreliable” which is relevant to s 90. This is said to be evident from a comparison with objective evidence from the crime scene, summarised in an annexure to the written submissions. [71] It was submitted that this exercise did not give rise to any consideration of the truth or untruth of the admissions; accordingly, the issue was not being “introduced by the defendant”. [72]

4. [106]

   It would be an unusual case in which the truth/untruth issue could be introduced in the context of a s 84 objection to the admissibility of admissions. It may have relevance to ss 85 and 90: R v Tarantino (No 6) [2019] NSWSC 1174 at [154] (Beech-Jones J).

5. [107]

   The four bases of the accused’s objection will now be dealt with in turn.

Evidence Act, s 84

1. [108]

   The submissions in relation to the objection pursuant to s 84 of the Evidence Act were the most wide-ranging. The section is in the following terms:

2. [109]

   In opening his oral submissions, counsel for the accused acknowledged that “the courts have repeatedly sanctioned the use of deception and trickery in the obtaining of confessions for serious crimes such as unsolved murders”. [73]

3. [110]

   The accused’s submission is that evidence of the admissions made on 11 August 2020 are not admissible because “the approach taken in this case … exceeded the boundaries of acceptable pressure such that” the Court would not be satisfied that the admissions, and their making, were not influenced by oppressive conduct towards the accused engaged in by the undercover operatives, UCOs 3, 4 and 7. [74]

4. [111]

   In written submissions it was contended there were five unique features of the USCUT operation in the present case that rendered it distinguishable from others in the reported cases. [75] They were:

   1. (1)

      The organisation had persistently involved a “corrupt police officer”, UCO 1. (This was said to be pertinent to the s 85 basis of the objection.)

   2. (2)

      The operation was “very lengthy, spanning approximately 10 months [in fact 8.5 months] and involving [redacted]”.

   3. (3)

      There was “a pattern of increasing, and ultimately substantial, simulated criminality engaged in by the group”. The Court would find that “the accused actually believed, or reasonably would have believed, that the actions of the organisation were real actions”.

   4. (4)

      The UCOs had a strong degree of familiarity with the facts and circumstances of the Ms Bright and LS cases, in contrast with, for example, Tofilau v The Queen in which the officers were only provided with “very basic information” so as to prevent any leading questions that might affect the reliability of any admissions obtained and to ensure they did not inadvertently disclose that they knew anything about the matter.

   5. (5)

      [Redacted].

5. [112]

   In oral submissions it was accepted that some of these matters were more unique than others. The length of the operation did not “leave this case standing alone”. Further, there were a number of examples of cases in which “corrupt” police officers were involved. The fourth point about the officers having information about the case they were investigating was accepted to be more relevant to the extent by which the question of the accused was leading. In this respect, counsel referred to the accused responding to many questions with short “Yeah” answers. [76]

6. [113]

   Focussing more directly upon s 84, it was submitted that the conduct of the UCOs was oppressive because of the individual and cumulative effect of the following factors: [77]

   1. (1)

      There was importuning of the accused to agree to proposals that he make admissions to the assault upon LS and the murder of Ms Bright. The questioning crossed the boundary of reasonable persistence so as to amount to oppressive conduct, particularly in circumstances where:

   2. (2)

      The repeated statements to the accused that he would be excluded from the group which had become what he described as a “family” over the months of the “developmental” phase of the USCUT operation.

   3. (3)

      The repeated statements to the accused that if he did not make the admissions he would soon be charged with the murder of Ms Bright and the sexual assault of LS.

   4. (4)

      The urgency the accused was encouraged to believe surrounded the UCOs’ requirements of him.

   5. (5)

      [Redacted].

   6. (6)

      Being asked to confess to “both or none”, i.e. the murder of Ms Bright and the sexual assault of LS.

7. [114]

   The accused submitted that the oppressive conduct in this case was the degree of persistence and importunity engaged in by the UCOs, and the pressure it brought to bear upon the accused. It represented an application of “oppressive mental and psychological pressure” in the form of “persistent importunity or sustained or undue insistence or pressure”: Deacon v The Queen at [34] (but see also [49]-[50], [69]).

8. [115]

   It is common ground that the accused repeatedly denied involvement in either of the incidents concerning LS and Ms Bright prior to the trip to Gulgong. The accused collected in Annexure A to his written submissions each instance of this, asserting it was “on at least 29 occasions” he denied involvement in the death of Ms Bright and “on at least eight occasions” he did so in relation to the sexual assault of LS. These are all denials contained in the conversation with UCO 3 in the hotel room at [redacted]. At other points in that conversation the accused said that he had no memory of the events in question.

9. [116]

   The Crown acknowledged that a number of denials were made but disputed the accused’s account, contending there were only 3 in relation to LS and 22 in relation to the murder of Ms Bright. [78] This dispute is dubious in relation to some of the accused’s statements to UCO 3. Statements in which he claimed to have an alibi (being in Sydney at the time) or that he knew nothing and did not do it should qualify as denials but, in any event, I do not think the actual number determines the significance of this feature.

10. [117]

    It was contended by the accused that UCO 3 exhibited a refusal to cease questioning unless and until there were answers to his satisfaction. [79] However the Crown submitted (correctly) that it was not unusual that denials precede a confession in cases involving an USCUT operation. It is therefore unsurprising that the “boss” continued to press for “the truth”. No case was referred to by the accused in which it was otherwise.

11. [118]

    While acknowledging that “each case turns on its own facts”, examples were provided of the conversations and questioning that were not found to be unacceptably oppressive in other cases (Deacon, Weaven, Jelicic and Kilincer) and that the accused in two of those cases was not found to have any personal characteristic of vulnerability making him susceptible to coercion or oppression. [80]

12. [119]

    The accused drew attention to him having been told that if he did not provide information the organisation could not continue to work with him, having done so closely for many months, and would have to “wipe [its] hands” of him. [81] He was told that the evidence against him, at least in relation to LS, was strong enough to sustain a conviction and would likely result in him going to “lockup”. [82] He was also told that if he did not confess, he would be arrested imminently, [83] but an immediate confession would result in no arrest and freedom from any repercussions. [84] (This appears to be an accepted feature of USCUT operations.)

13. [120]

    The accused made reference to the scenario in which UCO 2 was allowed to leave the organisation on amicable terms and without recriminations (see above at [44]). It was submitted that “this provides little assistance to the Crown where there is no reference by the boss, UCO 3, to this person at the meeting and further, the consequence of not confessing meant the boss would provide no “help” to the accused but that, with his help, he would not be arrested and “nothing ever comes back to you” (P163-164). It was also submitted that the situation concerning UCO 2 involved him leaving the group due to personal issues. [85] (The significance of that was not developed.)

14. [121]

    Reference was also made to what was described as “uncertainty” in the accused’s answers in which he said that he did not know “what to say” and that he did not know what had happened to Ms Bright (examples were provided at CRT 127, 177, 180, 183, 184 and 187). It was sought to contrast this with what occurred in R v Kilincer (No 2) in which Johnson J found 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 this discussion with [the UCO]”. [86]

15. [122]

    It was submitted that “the oppressive nature of the persistence on the part of the UCOs, and particularly UCO 3, was magnified by the fact that the accused’s verbal intelligence is low. … Dr Seidler considered this deficit may have rendered Mr Rumsby more vulnerable to being influenced by the undercover police operatives, in addition to being limited in his consequential reasoning”. This was contrasted to the position in Deacon v The Queen and R v Kilincer (No 2) where there was nothing in the applicant’s / accused’s personal characteristics to suggest any particular vulnerability or susceptibility to coercion or oppression. [87]

16. [123]

    Finally in relation to this factor, counsel drew attention to a passage in the latter part of [19] of the judgment of Gleeson CJ in Tofilau v The Queen which I consider is best understood in the context of the entire paragraph: [88]

17. [124]

    In relation to the second factor concerning exclusion from the group the accused identified as a “family” (in truth, they referred to themselves as a “family” and he appeared to accept the description [89] ), it was submitted the accused led a “socially isolated and quite marginal existence prior to his involvement in the organisation”. The speed with which he became involved in the organisation and the enthusiasm with which he approached his dealings with it from an early stage suggested there was little else going on in his life. There were only two occasions in which he was unavailable to join members. He spoke of his poor relationship with his brother and referred to the organisation as a de facto family unit, with UCO 4 as his “brother”. There were almost no references to friends. It was contended he formed attachments to individuals within the group rapidly. [90]

18. [125]

    Support for the above was said to be found in Dr Seidler’s report where she recounted the accused’s claim to have no contact with surviving family members and that he did not have any community supports. [91]

19. [126]

    It was submitted that UCO 3’s statements about excluding the accused from the group if there was no confession amounted to “promising to deprive the accused of the sole social network which he had been engaged with for a period of almost a year”. [92]

20. [127]

    Perhaps in anticipation of a submission by the Crown, reference was made to part of the conversation at Gulgong, when the accused denied that he had said what he thought the UCOs wanted to hear, or that he had “an ulterior motive just to stay with the family” and UCO 3 told him that “the last bloke that we let go … we gave … him a good drink and he occasionally texts UCO 4 … And life’s goin’ good for him. And we can do that for you if that’s what you want”. The accused responded by saying he had told the truth and that he wanted their help. [93] It was pointed out that this was “well after the relevant admissions, and well after UCO 3’s initial assertions (including at p 177) that if Rumsby did not confess the organisation would ‘have to wipe [their] hands’ of Rumsby”. [94]

21. [128]

    The third and fourth factors concerned the suggestion of UCO 3 that if the accused did not confess he would be arrested. [Redacted], UCO 1, [redacted]. It was submitted that this would have made the threat of arrest appear very real to the accused. So too would the alternative of such consequences not materialising if a confession was made. [95]

22. [129]

    This was said to be borne out by paragraph [62] of Dr Seidler’s report wherein she set out the accused’s claim that he was pressured into admitting to something he did not do; he was pressured to “make up a story” because he was “motivated by a desire to continue being involved with the group so that he could earn more money”. [96] (I have previously indicated caution about the weight to be given to the accused’s untested out of court representations (at [97]).

23. [130]

    Against the prospect of the Crown submitting that the accused’s decision to confess was a product of self-interest, it was submitted that the voluntariness of the accused’s admissions was undermined by the “promise of advantage” being accompanied by a calamitous alternative. In other words, immediate resolution with no consequences compared with arrest, charging and trial. [97]

24. [131]

    The fifth factor was the [redacted]. It was submitted that this “clearly weighed upon the accused’s mind”. Like the promise of avoidance of criminal prosecution, [redacted] had to be counterbalanced against the calamitous alternative outcome. [98]

25. [132]

    In oral submissions it was clarified that the issue was more to do [redacted]. [99] [Reward] was a unique feature of this case.

26. [133]

    A submission made in reply by the accused was that “there is a relevant distinction to be drawn between [redacted]”. [100] The point was further developed in oral submissions, the distinction being explained as the direct connection between [redacted]. [101]

27. [134]

    At three stages during the conversations between the boss and the accused it was said that it was “both or none”; in other words it was necessary for the accused to tell the boss what he knew about the incidents concerning both LS and Ms Bright. [102] In the accused’s written submissions in reply it was observed that no other case could be found where in the course of an USCUT operation, pressure was brought to bear on an accused in relation to two distinct crimes which relied upon distinct bodies of evidence. [103]

28. [135]

    This point was further developed at the hearing. [104] Telling the accused he had to confess to “both or none” went beyond mere deception or trickery. It was a proposition put to the accused that prescribed or mandated the form the confession had to take in order for it to have any effect. This was said to have a bearing on both oppressive conduct as well as reliability. It was submitted: “In relation to reliability … the accused is deprived of a rational choice to confess to one but not to the other, regardless of the true factual scenario. In the event the accused is innocent of one but not the other, then the accused is deprived of the ability to make a rational choice in this regard.”

29. [136]

    Counsel also noted that the proposition was first put to the accused after he had made a partial admission in respect of the LS incident.

30. [137]

    It was submitted that “the severity and urgency of the stated threat of being arrested and charged was rationally likely to have influenced the conduct of the accused in making the confessions”. [105]

31. [138]

    The Crown submitted that there was no conduct in the developmental stage that was oppressive. It referred to the following matters: [106]

32. [139]

    The Crown further submitted that there was no oppressive conduct in the resolution stage on 11 August 2020, referring to the following matters: [108]

33. [140]

    The Crown submitted that the asserted “importuning” of the accused did not cross the boundary of reasonable persistence so as to amount to oppressive conduct.

34. [141]

    There is no controversy about the burden and standard of proof. Once the issue has been raised it is a matter for the Crown to satisfy the Court the admissions and their making were not influenced by s 84(1) conduct. The standard of proof is the balance of probabilities according to s 142(1) of the Evidence Act: Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299; [2010] NSWCA 34 at [279].

35. [142]

    The form of conduct within s 84(1) contended for by the accused is “oppressive conduct”.

36. [143]

    The first question is whether there was oppressive conduct. If there was, it is then a matter of determining whether the admissions and their making were not influenced by such conduct: Habib v Nationwide News Pty Ltd at [273]; R v Kilincer (No 2) [2021] NSWSC 829 at [146].

37. [144]

    I have found the following consideration of the concept of “oppressive conduct” in relation to s 84 of the Evidence Act provided by Johnson J in R v Kilincer (No 2) most helpful:

38. [145]

    There is no controversy about whether there is any causal connection between the conduct of the police and the making of the admissions; the whole point of the USCUT operation was to influence the accused to make admissions, or, as UCO 3 said in his evidence: [109]

39. [146]

    As was observed in Deacon v The Queen at [32], notwithstanding the causal requirement in s 84 is not in issue:

40. [147]

    I turn to the real issue, whether the conduct of the police was “oppressive”.

41. [148]

    There is no need to resolve the dispute between the parties about how many times the accused uttered a denial of involvement in the offences. The important thing is that it is common ground that he maintained those denials for a time and then began to make admissions, adding more information as the conversation proceeded, particularly when he was with the UCOs at Gulgong.

42. [149]

    Denials by the accused of committing the offences were maintained for about the first three hours of the conversation with UCO 3. (There was a break for about 40 minutes after about 2 hours.) The admissions start to emerge at covert recording transcript (CRT) page 169 when the accused said he remembered talk about a party (which Ms Bright attended on the night in question). He then offered some partial details but became more expansive from about CRT 186.

43. [150]

    The Crown was correct in noting that there had been a period of denial before a confession was made in other USCUT operations. In Tofilau v The Queen at [165], Kirby J listed features common to each of the four appeals before the Court and they included, “Each persisted in denial of guilt for a period of time but ultimately made a confessional statement”.

44. [151]

    The Crown referred to R v Kilincer (No 2) as another case in which the admissions were preceded by a substantial number of denials. [110] In that case the offender maintained his denials for 1 hour and 48 minutes of his conversation with the “boss” before he took a bathroom break and then made admissions upon his return to the room. Johnson J noted that “Tofilau v The Queen makes clear [that] 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.”

45. [152]

    It would seem unremarkable that a person who has committed a serious crime such as murder and who has successfully concealed their guilt for a substantial period would not be quickly forthcoming with admissions.

46. [153]

    As to the accused being told that there were two possible outcomes, confessing thereby avoiding prosecution and remaining with the “family” or being excluded from the organisation, prosecuted, found guilty and going to gaol, it was the accused who told UCO 3 that on the evidence of LS he would be “found guilty” and that as a result he would go to “lockup”. [111] However, the accused’s point was more directed to UCO 3 having stressed upon him that those were the two potential outcomes.

47. [154]

    The accused characterised some answers he gave to UCO 3 as being indicative of “uncertainty” and reference was made to him saying that he did not know “what to say”; the submission being that this was a result of UCO 3’s disregard of the denials and “persistent importuning”. Persistence does not necessarily equate with oppressiveness, although it is something that will vary in degree from case to case.

48. [155]

    I do not accept that a reference to Johnson J’s assessment of the demeanour of the offender in R v Kilincer (No 2) assists the accused. His Honour considered there was a “relaxed approach” which was not consistent with a person who had just fabricated a story. The audio-visual recording in the present case indicates a relaxed demeanour on the part of the accused. Certainly at the point where he first came out with his account of how he killed Ms Bright there were often quite lengthy pauses before his answers, but this could be interpreted as him reflecting on something and trying to bring forward an actual memory of the facts being discussed. This part of the conversation went for about 45 minutes. [112]

49. [156]

    I accept the Crown submission [113] that the passage of over 21 years since the murder of Ms Bright and the attack upon LS, coupled with the fact the accused had consumed alcohol on each occasion is a relevant matter to take into account when considering any apparent “uncertainty” or “prevarication regarding specific details of what happened”.

50. [157]

    I am not prepared to give any significant weight to the assessment of the accused’s verbal intelligence as “low”. I have previously referred to the shortcomings relating to Dr Seidler’s report (see above at [97]). In addition, there is nothing about the accused’s apparent communication skills that indicates a vulnerability to being influenced. In this regard it is of note that he did not simply accept and adopt what he was asked or what was suggested by UCO 3; for example, he maintained a denial that he attempted to rape Ms Bright. [114]

51. [158]

    Aside from the report of Dr Seidler, there is no basis to uphold the contention that unlike the accused persons in Deacon v The Queen and R v Kilincer (No 2) the accused in this case was vulnerable and/or susceptible to coercion or oppression. To the contrary, the table of transcript extracts provided by the Crown in Annexure 8 supports its contention that throughout the developmental phase of the operation the accused, at times, demonstrated initiative, enthusiasm and was not the subject of oppression or lacking in freedom of choice as to participating in the work of the organisation.

52. [159]

    Annexure 16 in the Crown bundle provides a summary of the accused’s “employment, familial and social factors”. It indicates that he has not led a life of social isolation. He was usually in employment up until he sustained a neck injury in 2016. He was in domestic relationships from 1988 to 1994, 1997 to 1998, and from 1999 to 2017. There were conversations with UCO 4 during the developmental phase in which the accused referred to friends, either in relation to his quest for accommodation or generally. The Crown also quoted from a transcript of the scenario on 6 February 2020 in which the accused referred to being in a group of three, he and two “best mates” [115] . Finally, he apparently told police investigating an unrelated matter in 2013 that he had “heaps of friends”. [116]

53. [160]

    There was an issue between the parties as to whether the facts in this case were different to those in Deacon v The Queen because in that case:

54. [161]

    There is merit in the Crown’s contention that any distinction that there might be is not of substance. In the present case during the “developmental phase” of the operation, the accused was regularly asked if he wanted to continue, and it was made clear that he did not have to participate in all “jobs”. He was shown (through the UCOs dealings with other members/clients) and told that he was free to leave at any time.

55. [162]

    As noted, Annexure 8 in the Crown bundle contains extracts from covertly recorded conversations during the developmental phase and includes instances of the accused being told his participation in the work of the organisation was not obligatory and that he could leave the organisation if he wished. The accused repeatedly responded by saying that he was enjoying it. [117] The scenario on 19 May 2020 whereby the accused saw how UCO 2 was told he was free to leave the organisation (for personal reasons) without recriminations is likely to have reinforced this point with the accused. He would not need to have been reminded of it by UCO 3 on 11 August 2020.

56. [163]

    It is correct for the accused to say that it was after the majority of the admissions had been made when he was asked at Gulgong whether he had confessed due to an “ulterior motive just to stay with the family”. (He answered in the negative.) However, he was asked a similar question in the apartment at [redacted], soon after he commenced making admissions concerning the murder. UCO 3 asked, “Are you telling me what you think I want to hear or are you telling me the truth?” The accused had been making admissions in response to non-leading questions as to how he killed Ms Bright by holding his hand over her mouth until she had stopped breathing. He was answering each question in a soft but solemn tone. He was sitting forward in a lounge with an elbow on his knee, his hand resting against the side of his face, appearing to be looking steadily at the ground in front of UCO 3. When this question was asked he immediately raised his head, looked directly at UCO 3 and replied, “Telling the truth”. [118]

57. [164]

    Those were not the only times the need to be truthful had been impressed upon the accused, or that he had verified he had been truthful. UCO 3 said before any admissions were made about Ms Bright’s murder, “Now I don’t want you to make it up just to try and pacify me … The truth’s the only way we can sort this”. [119]

58. [165]

    The accused was also told a number of times that the truth was required because anything that was incorrect would not align with the facts established by the police. For example, at CRT 96.3, UCO 3 said, “I can’t fix what you’re not honest with”. At CRT 164.5, UCO 3 said that [redacted] depended upon providing facts that could be verified by the police. At CRT 177.3, UCO 3 said, “As long as those facts line up with the facts, what the jacks know”.

59. [166]

    The third and fourth factors raised matters which are largely standard or commonly encountered features of a USCUT operation. Suspects are usually told that they are at imminent risk of arrest but that this can be avoided if they confess to the “boss”. It is unsurprising that the “boss” would purport to substantiate this imminent risk by claiming to have obtained internal police documents so that, as the accused submitted, the threat of arrest and charging would appear very real. [120] Suspects are usually offered the “stark alternative, having regard to the organisation’s power to solve problems”. [121] The latter is the point of the lengthy developmental phase of the operation.

60. [167]

    The accused also argued that basal voluntariness was undermined by the strictures of the choice presented to him; the promise of advantage discussed in Tofilau v The Queen was accompanied by a calamitous alternative. The accused’s reference to the judgment of Gummow and Hayne JJ at [62] in fact points to the difficulty with this argument. Their Honours there said, “Rarely, if ever, would the test of ‘basal voluntariness’ exclude confessions where some hope of advantage (as distinct from fear of prejudice) was held out to the person who made the confession”. What was being suggested to the accused was hope of a single advantage: avoid the prospect of arrest by making a confession and thereby be able to enjoy a financial advantage by continuing to work with the gang. This is the way the accused saw it according to his statement to Dr Seidler that his (made up) confession “was motivated by a desire to continue being involved with the group so that he could earn more money”. [122]

61. [168]

    The prospect of [redacted] (the fifth factor) was not something he mentioned specifically to Dr Seidler as a reason for his confession. As just mentioned, his stated hope of advantage was to continue working with the gang and thereby earning more money. Be that as it may, counsel for the accused refined this point during the course of oral submissions to argue that its significance was more to do with [redacted]. The difference between that and financial gain through continued involvement in criminal activity seems flimsy. The accused likely foresaw large sums of money were to be derived from future criminal activity. He had seen [redacted] and he was keenly interested in [redacted].

62. [169]

    As to the attempt to distinguish between the two by contending there was a more direct connection between [redacted], the Crown made the point [123] that there was a direct connection in Tofilau v The Queen (at [152]) between the confession and the promise of $10K being held in a safety deposit box.

63. [170]

    More is said below about the [redacted] issue in dealing with the objection under s 138 (at [211]ff).

64. [171]

    As to the “both or none” factor, UCO 3 explained in his evidence that this was not something that was done to maximise pressure to get an admission. The goal was to ascertain the truth, not simply to obtain admissions (although the comments of the UCOs after the accused had been arrested and when they probably thought the recording equipment had been turned off casts a doubt over that claim). In any event, to maintain the credibility of the ruse it was necessary for the UCOs to seek the elimination of “both”; elimination of only one would not have achieved anything. [124]

65. [172]

    I note for the sake of completeness that during the course of the hearing both parties were able to identify a case in which an USCUT style operation had been conducted in relation to a person suspected of multiple crimes. Director of Public Prosecutions v Ghiller [2003] VSC 350 concerned a prosecution for a large number of armed robberies and related offences. The USCUT operation extended to them all and they had the appearance of each having been committed by the accused and his uncle. Standage v State of Tasmania [2017] TASCCA 23 was concerned with two murders committed 14 years apart with the prosecution relying upon tendency and coincidence evidence linking the two. In neither case was the point now taken by the accused as to the “both or none” factor raised for determination.

66. [173]

    My conclusion in relation to this factor is that it is something that may have significance in a case in which an accused person accepts their guilt in relation to one matter but denies it in relation to another. In this trial it will be the defence case that the accused is not guilty in respect of each matter. It will be necessary that the jury be directed as to separate consideration to each count in the indictment but the issue does not otherwise have the degree of significance that the accused contends.

67. [174]

    The foregoing addresses the six specific factors raised in argument by the accused in relation to the s 84 objection. There are some further observations to be made.

68. [175]

    The conduct of the UCOs in this case was largely aligned to that which was involved in the cases to which reference has been made. As Johnson J described, [125] Tofilau v The Queen made clear that, “the very nature of the 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 … strategy involves exhortation of the suspect to tell the truth, so that a significant measure of persuasion plays an important part in the process.” That is what happened here.

69. [176]

    I am persuaded that the “confessions” of the accused were not influenced by oppressive conduct. Adopting the reasoning of the Northern Territory Court of Criminal Appeal in Deacon v R at [32], I am satisfied on the balance of probabilities that they were the consequence of perceived psychological pressure which was a response to his predicament. There was nothing burdensome or unjustly harsh about the police conduct. It certainly did not involve the exercise of authority in a cruel or unjust manner. There was no unlawful use of power.

70. [177]

    The accused was subject to psychological pressure, but there was nothing “oppressive” about the way that occurred. The accused does not suggest there was any infringement of his rights and none are apparent. I am not satisfied that there was anything in the accused’s personal characteristics that rendered him susceptible to coercion or oppression to any material degree.

71. [178]

    I am further satisfied that the accused knew that he did not have to stay and he did not have to speak. He chose to remain and to speak in the exercise of his choice to remain with the “gang” in the hope of gaining a financial advantage from doing so.

72. [179]

    The objection to the admissibility of the evidence pursuant to s 84 of the Evidence Act fails.

Evidence Act, s 85

1. [180]

   Section 85 is in the following terms:

2. [181]

   The term “investigating official” in s 85(1)(a) is defined in the Dictionary to the Evidence Act as follows:

3. [182]

   Both limbs of the definition exclude officers/persons engaged in covert investigations such as the UCOs were in the present case. The accused thereby accepts that s 85(1)(a) has no application. [126]

4. [183]

   The accused contends that s 85(1)(b) does have application. He argued that the admission was made as a result of the act of another person (undercover officers including UCO 3 and UCO 1) who were, and who the accused knew, or reasonably believed to be, capable of influencing the decision whether a prosecution of the accused should be brought or should be continued. [127]

5. [184]

   It was submitted that the undercover officers UCO 3 and UCO 1 were each in fact capable of influencing the decision whether a prosecution of the accused should be brought or continued and the accused reasonably believed that UCO 3 and UCO 1 had that capability. In either case, the fact the accused did not know, or misapprehended the manner in which, or the basis upon which UCO 3 and UCO 1 might have influenced such a decision was said to be beside the point. [128]

6. [185]

   It was the accused’s contention that the choice of the legislature expressly to exclude covert operatives from the operation of s 85(1)(a) but not to do so in respect of s 85(1)(b) supported his contention that such an operative may be within the concept of “another person” in the latter. The Explanatory Note to the Evidence Amendment Bill 2007 (NSW) brought about amendments to sub-s (1) and stated that new para (b) “removes covert operatives from the ambit of the provision”. The accused argued that this was inconsistent with the actual amendment to the provision which did remove covert operatives from the ambit of the provision but only with regards to the scope of s 85(1) par (a). It was contended that Johnson J was in error in concluding otherwise in R v Kilincer (No 2) at [187]-[199].

7. [186]

   The accused rhetorically asked whether a construction of s 85(1)(b) permitted the tacit insertion of a phrase such as “(except an undercover operative)” after the words, “as a result of an act of another person”, where no such phrase appears, and whether the content of extraneous material such as the Explanatory Note could permit such a construction. [129]

8. [187]

   There is no gap in the legislative provision and the reasoning of Johnson J does not involve having recourse to extraneous material to determine what Parliament meant to say as opposed to what in fact was said. There was simply no need to insert in s 85(1)(b) an explicit exclusion of covert operatives. A construction of the provision that yields an absurd conclusion that it extends to persons perceived by the accused to be capable of perverting the course of justice by illegally or improperly influencing a decision to prosecute, or maintain a prosecution, cannot be accepted. [130] The reasons for concluding that the undercover operatives in the cases considered by the High Court in Tofilau v The Queen were not persons in authority are analogous: see, e.g., Gleeson CJ at [13].

9. [188]

   For the reasons provided by Johnson J in R v Kilincer (No 2), s 85 cannot have application in the present case.

10. [189]

    The Crown’s submissions in contending s 85 had no application included reference to a statement made in R v Esposito (1998) 45 NSWLR 442 at 459 about what s 85 is intended to cover:

11. [190]

    How that statement stands in the light of the 2007 amendments to s 85 was not developed in the submissions.

12. [191]

    In the event that it should elsewhere be determined that s 85 does have application, mention should be made of the list of matters the accused contended were relevant to whether the circumstances in which the admissions were made were such as to make it unlikely that the truth of the admission was adversely affected:

13. [192]

    Aside from item (c), these matters have been considered in the context of s 84 and there is nothing further to add. It is appropriate to say something here about item (c) concerning “leading and suggestive questioning”. This is something that is more relevant to reliability under s 85 than it is to whether there was oppressive conduct under s 84.

14. [193]

    It is not the case that asking leading or suggestive questions will have the automatic consequence of exclusion of the evidence for unreliability under s 85. It may be the case that such questions are asked to a degree that does not warrant exclusion but remains a matter to be considered by a jury.

15. [194]

    Asking a suspect leading questions may be legitimate for a variety of reasons. It may be necessary to steer the suspect towards, or back to, a particular topic. It may be acceptable to remind the suspect that they have previously said something different. It may also be appropriate when the suspect has said something on a relatively innocuous topic that is obviously wrong, or they are having difficulty remembering something that they have previously articulated. It may also be necessary to incorporate into the conversation some supposed knowledge by the “boss” concerning the crime to reinforce the fact that the boss has inside information which suggests the suspect has yet to tell “the truth”.

16. [195]

    It requires an evaluative judgment to determine whether asking leading questions concerning matters of controversy yielded answers the truth of which was adversely affected. The accused provided a table with the title “Suggestions” which was annexure 4 to his written submissions. It does not purport to be a complete list of all of the questions the accused might categorise as suggestive or leading. I do not intend to go through and comment on every item, but simply to say that it should not be concluded that they are of the nature or extent that they support exclusion pursuant to s 85.

17. [196]

    In short, s 85 does not apply. If it did, upon consideration of each of the six issues argued by the accused the evidence is admissible because the circumstances in which the admissions were made were such as to make it unlikely that their truth was adversely affected. (More is said about reliability in the section which follows.)

Evidence Act, s 90

1. [197]

   Section 90 of the Evidence Act is in the following terms:

2. [198]

   The accused submitted that it would be unfair to use the evidence having regard to the specific circumstances in which the admissions were made. The nature of the questioning and the scenario as a whole did not carry hallmarks of reliability and truthfulness which were apparent in cases such as Deacon v The Queen, R v Weaven (Ruling No 1), and R v Kilincer (No 2). [131]

3. [199]

   The accused correctly noted that he bore the onus of proving that it would be unfair to him to use the evidence: Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 at [63] (Gleeson CJ and Heydon J). It was also noted that unreliability is a factor (but not exclusively so) affecting the fairness of the use of an admission: R v Swaffield (1998) 192 CLR 159; [1998] HCA 1 at [78] (Toohey, Gaudron and Gummow JJ).

4. [200]

   It was submitted that the admissions are not reliable “because the manner in which they were obtained casts real doubt over their reliability, given that they were accompanied by persistence, inducement and a sense of urgency. … They are accompanied by a pervasive degree of uncertainty and vagueness, and, as is demonstrated in Annexure 3, particular details are demonstrably wrong.” [132] That annexure to the accused’s written submissions (as amended with reference to the sources of the evidence) is a table of admissions alleged to have been made by the accused which is said to be inconsistent with the physical evidence. (It may be noted that the Crown also provided a table of things the accused told the police, comparing them with the known facts, which put matters in a somewhat less negative light.) [133]

5. [201]

   The accused anticipated an argument to the following effect. He was aware that he was being asked to provide a truthful confession, something that would match the detail that would have been revealed in the police investigation and so he would have provided as much accurate detail as he could. He sought to address it with the submission that it did not make sense that he was “economical” or downright untruthful with his version of events or about what took place. It was contrary to his interests to maintain a partial ruse while admitting to the basal aspects of the offending. [134]

6. [202]

   The underlying premise for this submission is that the accused is innocent in respect of the crimes involving both LS and Ms Bright. That is, of course, the defence case and it is trite to note that the accused is presumed to be innocent. Those matters do not detract from the potential alternative explanation for the unreliability of some of the accused’s admissions: that because of his consumption of alcohol on the nights in question and the concealment of his guilt for the subsequent 21 years, his memory of some matters of detail has become faulty. [135] In other words, it is not the circumstances in which the admissions were made that have led to some of them being vague, imprecise or inaccurate. There is also a possibility that the accused retained some residual reluctance about admitting to all of what he did in respect of LS and Ms Bright.

7. [203]

   Additionally, it will be open to a jury to consider that the accused had at the very least the intelligence and wit to realise that proffering anything to UCO 3 and the others simply because he thought it was what they wanted to hear, regardless of its correctness, ran the risk that he would not see his goal fulfilled: “to continue being involved with the group so that he could earn more money”. [136] In other words, he would have been motivated to be as accurate as the limits of his memory would allow.

8. [204]

   The accused also argued that there is no esoteric knowledge disclosed by the accused, something which only the true perpetrator would have known. R v Cowan; ex parte Attorney General and R v Weaven (Ruling No 1) were cited as examples of where that was the case. [137] However, as Johnson J pointed out in R v Kilincer (No 2) at [207] (and the accused conceded [138] ) the existence of such a feature is not a precondition to admissibility or to a conclusion that admissions are capable of being found reliable by a tribunal of fact.

9. [205]

   In response to that point the Crown contended there was a piece of “esoteric knowledge” disclosed by the accused, that the deceased’s pubic area was shaved. [139] This is indicated to be the case in the crime scene photographs. The accused responded by submitting that the answer came in response to a leading question:

10. [206]

    The question may have been leading in a strict sense but it left open the possibility of an answer that was either affirmative, negative, or neutral (“I don’t know”, “I don’t remember” or “I’m not sure”).

11. [207]

    The accused also challenged the proposition that the deceased’s pubic area was shaved and referred to certain evidence in support of the negative inconclusiveness on the issue. I am not persuaded that a negative finding can be made on the evidence available to the Court at this point. It seems to be an issue that is open to a jury to consider.

12. [208]

    A final point made by the accused was that there was nothing he said or about his demeanour that indicated an “unburdening” had occurred as Johnson J had inferred in R v Kilincer (No 2) at [75], [78]. This is tantamount to asserting a fallacy, that the absence of a positive factor indicates the opposite. I have mentioned previously (at [163]) how the accused appeared in the video at the time he was confessing to UCO 3 the murder of Ms Bright. There is nothing at that point, or at any other time in which he is visible (i.e. not at Gulgong) that supports a conclusion that he was dishonestly or recklessly confessing to crimes he did not commit. He gave an appearance of being serious about what he was saying which is capable of being regarded by the jury as having an air of credibility. (Whether the jury will form such a view is, of course, not for me to say.)

13. [209]

    It would be open to the jury in this case to take a selective approach in considering which parts of the accused’s admissions are reliable and which are not. That was the conclusion reached by Hamill J in R v Simmons; R v Moore (No 2) [2015] NSWSC 143 at [131] and is apt in this case. The jury will need to be directed accordingly.

14. [210]

    The basis upon which a discretion may be exercised to exclude the admissions pursuant to s 90 of the Evidence Act has not been established.

Evidence Act, s 138

1. [211]

   The accused contended that admissions obtained following an “offer” or “olive branch” should be excluded as a matter of discretion pursuant to s 138:

2. [212]

   The “offer” or “olive branch” is a reference to a point about three hours into the covertly recorded conversation on 11 August 2020, time stamped 12.43.30, when UCO 3 raised the prospect of [redacted]. [140] [Redacted] UCO 3 [redacted]. As UCO 3 put it:

3. [213]

   The accused pointed to material produced not long before the pre-trial hearing which indicated that “the accused was, at all relevant times, motivated by financial reward and status, and the police reasonably believed this to be the case”. [141]

4. [214]

   The objection is described as follows:

5. [215]

   The “impropriety” was said to be because “police knew, or reasonably ought to have known, that the false statement, namely, the terms of the ‘offer’, was likely to cause the accused to make the admission”. [142]

6. [216]

   The accused referred to Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1 at [13] where the High Court observed that s 138 is not confined to evidence obtained by the improper or illegal conduct of the police.

7. [217]

   The proposition that the accused was motivated by financial reward and status derives from two documents. [143] One included the opinions of a psychologist, Ms Ora, over a year earlier:

8. [218]

   The other document was a transcript of a covertly recorded telephone conversation between the accused and an associate on 23 June 2020. It included the accused referring to he and UCO 4 doing a “big job”, “that’s the plan. $800,000 to a Mil. … I’ll get a hundred G out of it … Or I could end up with three hundred thousand.” [Redacted]. [144]

9. [219]

   The proposition the police reasonably believed that the accused was motivated by financial reward and status is based upon an inference that police were aware of the contents of these documents and had drawn that conclusion. There was no evidence to that effect. Although UCO 3 [redacted], he specifically denied that he “had an awareness that [the accused] was motivated by financial gain”. [145] He explained: [146]

10. [220]

    The whole concept of an USCUT involves deception of a suspect with false statements. As mentioned earlier (at [31]), Kirby J described such operations in Tofilau v The Queen as follows:

11. [221]

    Gleeson CJ said (at [5]) that, “The use by the police of deception in the hope of eliciting admissions is not new” and that, “The use of undercover police operatives always involves deception. Such operatives are undercover precisely because they are trying to deceive somebody about something.”

12. [222]

    Counsel for the accused was unable to provide a convincing answer when challenged at the hearing to explain the difference between suggesting to the accused he might [redacted] and suggesting that he would receive financial benefits for engaging in the future with the “family” in criminal activity. The telephone conversation referred to above (at [218]) demonstrates the substantial sum the accused aspired to receive for engaging in [redacted].

13. [223]

    Assuming that the evidence of UCO 3 was incorrect and that the police were aware that the accused was motivated by financial gain, it is difficult to see what significance that might have. USCUT operations are based on a premise that the suspect will be interested in engaging with the gang in financially lucrative criminal activity.

14. [224]

    Challenges to USCUT operations have all failed in appellate courts, including the High Court. In the case cited by the accused for the proposition that s 138 is not confined to the evidence illegally or improperly obtained by police, Kadir v The Queen, the judges of the High Court continued to say (at [14]):

15. [225]

    Tofilau v The Queen may be taken as an endorsement by the High Court of the USCUT methodology. Of course, it came with the rider, best described at the end of the judgment of Callinan, Heydon and Crennan JJ at [416] quoted above (at [32]). An USCUT operation conducted broadly in conformity with those that were considered in that case may be taken to comply with the “minimum standards of acceptable police conduct”.

16. [226]

    Even if it was to be held that the admissions were obtained as a result of some impropriety, a consideration of the factors listed in s 138(3) strongly militates in favour of the evidence being admitted. The evidence is highly probative and of obvious importance in connection with a most serious case of murder and sexual assault. The “impropriety” was inadvertent and of minor gravity in the context of what the High Court and other courts have considered to be within the boundaries of acceptable police conduct in the other cases mentioned earlier. The accused’s submission that it would have been possible for the police to obtain the admissions without the “impropriety” [redacted] is probably right. On balancing all of these considerations the evidence would not be rejected.

17. [227]

    The objection pursuant to s 138 has no merit.

Conclusion

1. [228]

   The objection to the admissibility of the evidence was argued and has been dealt with on a holistic basis. There was no suggestion of any discrete aspects of the evidence being objectional for some more specific reason but if there is it should not be taken to be foreclosed by the ruling now made.

2. [229]

   Evidence of the admissions made in the course of the USCUT operation is admissible.