R v Mackie

1. [1]

   On 7 November 2015, Rosemary Priscilla Mackie (“the accused”) was arraigned in this Court upon the following charge:

2. [2]

   The accused entered a plea of Not Guilty, and her trial is fixed to commence at Bega on 9 October 2017.

3. [3]

   On 31 March 2017, the accused, by Notice of Motion, sought the following orders:

4. [4]

   The proceedings on the Voir Dire were first heard, including the taking of evidence, in June 2017. At the conclusion of two days of hearing, because the parties intended to call further evidence from expert medical practitioners, the Motion was adjourned until 28 August 2017. Upon the resumption of the Motion, no further evidence was in fact called and the parties made submissions.

5. [5]

   As later recounted, during the hearing of the proceedings, the Crown indicated that it no longer wished to tender the accused’s recorded interview with DSC Lugsdin, nor any admissions made orally to her.

6. [6]

   There is a degree of urgency with respect to the delivery of this judgment having regard to the proximity of the commencement date of the trial.

Crown Case

1. [7]

   The following is the case which the Crown intends to put before the jury at the trial. It is taken from a document admitted in evidence called the “Crown Case Statement”.

2. [8]

   The facts and circumstances surrounding the murder of Ms Cave involve three people. They are the accused, Mr Bernhard Webber (who was generally referred to as Bernie) (“Webber”) and the deceased, Ms Cave. All three of them were residents of Bega and were friends.

3. [9]

   The accused was the de facto partner of Webber. Mr Webber and the deceased had a platonic friendship which regularly involved smoking cannabis together.

4. [10]

   At about 8.30am on Wednesday 14 October 2015, the body of the deceased was located on a pylon below the Mogareeka Bridge, which crosses the Bega River just north of Tathra township. The body was on the first pylon from the southern end of the bridge on its western side, and was about 5.35m below the top of the railing on the bridge. The deceased was naked and lying face-down on the pylon with the lower half of her body from the waist down hanging off the pylon towards the water below. The Crown case is that she did not die at that location. A ligature mark extending around her neck was observed, although it did not join at the rear. The deceased had a number of visible injuries including a laceration to the back of her head.

5. [11]

   Following investigations by the police, it was established that the deceased was last seen being picked up from her home by Webber in his Ford Falcon motor vehicle at about 10.15am on 13 October 2015. The deceased last used her mobile telephone by sending an SMS to a friend at 10.41am on 13 October 2015. The deceased failed to attend two appointments she had previously made in the early afternoon of that day.

6. [12]

   According to the forensic pathologist who conducted the autopsy, the direct cause of Ms Cave’s death was “ligature strangulation”. The ligature mark observed on the deceased was associated with injuries to the deep muscles at the front, both sides and the back of her neck. Observations on the post-mortem examination have led to the expression of opinion by the forensic pathologist that death occurred prior to the deceased falling onto the bridge pylon.

7. [13]

   In addition to the ligature strangulation, the forensic pathologist also found evidence of “blunt force impact to the head”, namely “a relatively large, full thickness, star-shaped complex laceration”. His conclusion was that this wound was suggestive of part of a blunt instrument or weapon meeting the scalp. The fracture underlying the wound was indicative of a reasonable amount of force being applied which may have caused unconsciousness but not death. The forensic pathologist observed a separate blunt force injury to the head on the back side of the left ear. He opined that these blunt force injuries “… could have been caused by a block splitter”. A block splitter is a type of axe used for splitting blocks of wood.

8. [14]

   In addition, the forensic pathologist observed injuries which he regarded as being consistent with the body falling, post mortem, to the pylon where it was discovered.

9. [15]

   The Crown is not in a position to call an eye-witness to the killing of the deceased.

10. [16]

    The Crown’s case, which largely derives from the version given by the accused to Mr Michael O’Brien, an undercover operatives, is that:

11. [17]

    On 20 October 2015, about a week after the deceased’s body was found, a crime scene warrant was executed at Webber’s home. A number of items were seized, including a number of ropes. One in particular was a dirty white rope/cord in two sections which appeared to have once been tied together and then cut.

12. [18]

    On 21 October 2015, Webber agreed to provide a DNA sample to police. However, before he did so, he was found in the early hours of the following morning, 22 October 2015, having committed suicide by hanging himself in his shed. It appears that the accused found Webber hanging in the shed and cut him down.

13. [19]

    The Crown case against the accused largely depends upon the accused’s conduct and behaviour in the time between 17 October 2015 and her arrest on 1 December 2015.

14. [20]

    On 17 October 2015, the deceased’s name was released to the public. The accused was sent a text by a friend on that day informing her of the news. The following day, 18 October 2015, the accused sent the deceased a Facebook message which read “Hey Marnie, how RU”. The Crown case is that this posting by the accused was conduct designed to deflect police attention from her.

15. [21]

    On 19 October 2015, the accused and Webber made an unscheduled visit to the Bega Police Station where the accused provided a statement outlining her acquaintance with the deceased, which began in early 2014. Amongst other things, the accused told the police that she was resentful of the deceased being around all the time and that she and Webber often argued about the deceased being there. The accused gave a confusing answer about the date when she found out about the deceased’s death. When first asked when she found out, she said “last Tuesday”, which was 13 October 2015, being the day the police allege the deceased was killed. When asked to clarify this, she said “Oh wait, maybe it was Thursday”, meaning 15 October 2015. She then became emotional. She informed the police that the reason she sent the Facebook message to the deceased on 18 October 2015, was because there was a “light next to the deceased’s name as if she was on‑line”.

16. [22]

    On 21 October 2015, the day following the execution of the crime scene warrant at Webber’s home, the accused attended Bega Police Station again where she provided further information to the police. She told the police that a person she knew as “Melissa” had seen the deceased and a male in the Post Office at about 11am on 13 October 2015, and the male threatened to kill the deceased. The police spoke to Melissa who denied that that conversation with the accused had ever taken place. The Crown relies upon this material as a lie by the accused designed to deflect the police investigation.

17. [23]

    In addition, during this visit, the accused told the police that she remained home for the whole of Tuesday 13 October 2015, except for a meeting at 11am in Bega township and helping Webber with his cleaning job there between 6.30pm and 8.30pm.

18. [24]

    On 27 October 2015, the accused was interviewed by police whilst in the presence of her solicitor. During that interview she denied any involvement in the deceased’s death, and denied knowing who was responsible for the death. During this interview the accused repeated some of the material which she had told the police on 21 October 2015.

19. [25]

    On 3 November 2015, the police attended upon the accused and informed her that they had reached the conclusion that Webber was involved in the murder of the deceased and the disposal of her body. At that time the accused informed the police that she knew nothing about the deceased’s death and that Webber did not tell her anything about it. A week later, on 10 November 2015, a similar conversation occurred. The Crown relies on these statements as being false, demonstrating a consciousness of guilty on the part of the accused.

20. [26]

    On Tuesday 24 November 2015, the police retained the services of an undercover operative, who was not a member of the police force, to make contact with the accused with a view to obtaining any admissions she might make in relation to the deceased’s death.

21. [27]

    The undercover operative, called Michael O’Brien for the purpose of these proceedings, has provided a statement that outlines conversations with the accused which were not recorded. As well, the police have recordings of telephone intercepts of conversations between the accused and Michael O’Brien and, finally, on 27 November 2015, Michael O’Brien was fitted with a surveillance device prior to a meeting with the accused during which he spoke to her at length about the murder. All of those conversations were electronically recorded – some of which are on video and some of which are audio recordings only.

22. [28]

    Based upon these conversations and recordings, it is the Crown case that the accused struck the deceased with a block-splitter whilst the deceased was in the bathroom at Webber’s house and Webber was in the lounge room watching TV. Webber then picked up the deceased and put her in the boot of his car. At that stage, with the assistance of the accused, Webber tied a rope around the deceased’s throat and strangled her. The accused and Webber then drove out to the Mogareeka Bridge with the deceased’s body in the boot, stopped on the bridge and dropped the deceased over the western side of the bridge.

23. [29]

    On 1 December 2015, the accused was arrested by police. The Crown claims that whilst at the police station the accused “made admissions to Detective Chief Inspector McNeill to with respect to the murder”. These admissions were not recorded on video, or by any audio means.

Bega Police Station – 1 December 2015

1. [30]

   It will convenient to deal first with Orders 2 and 3.

2. [31]

   These orders deal with what occurred at the Bega Police Station on 1 December 2015.

3. [32]

   The evidence about these events came primarily from Detective Senior Constable Lugsdin (“DSC Lugsdin”), who was the Officer in Charge of the investigation, and Detective Chief Inspector Kevin McNeill (“DCI McNeill”), who was the Crime Manager for the Far South Coast Local Area Command (“the LAC”).

4. [33]

   DCI McNeill was, at the relevant time, the most senior officer in the LAC dealing with events such as the arrest of the accused. He described himself as the commander in charge of all criminal investigations in the LAC, and that when serious criminal investigations occurred, he got involved or else oversaw them. He also gave evidence that he had a role with respect to Aboriginal suspects and witnesses. He said that he was the Aboriginal Issues Officer for the whole of the LAC, and that he had a lot to do with various issues:

5. [34]

   To give effect to this role, he had the assistance of an Aboriginal Liaison Officer.

6. [35]

   DCI McNeill was notified about the death of Ms Cave about 45 minutes or so after her body was discovered on 14 October 2015. From then on he oversaw the investigation. This included sending members of his LAC’s homicide squad down to Tathra and then travelling down to Tathra himself. He spoke to the relevant inspector who was overseeing the investigation on a daily basis and ensured that all of the necessary resources were provided.

7. [36]

   Although DCI McNeill was principally based at Batemans Bay, he travelled to Bega regularly and occasionally operated out of there.

8. [37]

   DCI McNeill was informed, in advance, of the intention of police to arrest the accused on 1 December 2015. He travelled to Bega that day because the investigation was being finalised, and he knew that there was an interview to be undertaken with the accused and that an arrest was to be made.

9. [38]

   Upon attending the Police Station in Bega, he went to the detectives’ office area in the Bega Police Station where he remained whilst the interview with the accused was taking place in the Interview Room.

10. [39]

    DCI McNeill had previously met the accused and had some interaction with her. He gave evidence that she had been to police and consultative committee meetings with him. These apparently are meetings held between police and the Aboriginal community once each year in Bega. According to DCI McNeill’s evidence, the accused had attended one of those meetings.

11. [40]

    DCI McNeill had been present at the Bega police station on 27 October 2015, when the accused was being interviewed by Detective Sergeant Marks. She had become quite upset during that interview and DCI McNeill said he saw her on that day and just tried to calm her down “… and make sure she was OK so she could finish her statement which she was doing”.

12. [41]

    DCI McNeill said in cross-examination that the purpose of his going down to Bega on 1 December 2015 was:

13. [42]

    He said that he intended to remain in Bega until the interview with the accused was finished. He also said that during the course of the interview DSC Lugsdin, who was responsible for the arrest and the interview, had come into the room where he was working and informed him of the progress of the interview. When further questioned about what he was doing there, Mr McNeil said:

14. [43]

    DCI McNeill said that his presence there would be of assistance to investigators.

15. [44]

    He also said that by the conclusion of the recorded interview undertaken by DSC Lugsdin, he had been informed that the accused had not made admissions to the offence of murder.

16. [45]

    It is necessary, before considering the conversations between DCI McNeill and the accused, to recount some of the history of the recorded interview.

17. [46]

    The accused was arrested at 9.15am on 1 December 2015, by DSC Lugsdin. She arrived at the Bega Police Station at about 9.25am. A support person, Ms Yvonne Gunning, a minister of a local church, was contacted and asked to attend at the police station.

18. [47]

    Leading Senior Constable Jones, one of the officers involved in the investigation, read a caution to the accused at about 10.05am. It followed the required format under the Law Enforcement (Powers and Responsibilities) Act 2002. A short time after that the accused spoke with a solicitor by telephone. At the conclusion of that conversation, the solicitor spoke with DSC Lugsdin.

19. [48]

    At about 10.36am, after Ms Gunning had arrived and met with the accused, there was a further telephone conversation with Ms Skinner, a respected solicitor at the Aboriginal Legal Aid Services (“ALS”). She spoke with the accused, and then spoke with Leading Senior Constable Jones. Ms Skinner, in a direct manner, informed Leading Senior Constable Jones that the accused did not wish to participate in an interview with police and, further, that the accused would not consent to the taking of her DNA, but would comply with any order made requiring her so to do.

20. [49]

    Notwithstanding this information, which was promptly conveyed to them, at about 11am DSC Lugsdin and Detective Heffernan attended at the charge room area of the Bega Police Station and escorted the accused to the Interview Room.

21. [50]

    According to DSC Lugsdin’s evidence the following exchange took place prior to the accused being taken to the Interview Room:

22. [51]

    The accused then was interviewed, commencing at about 11.05am and eventually concluding at 4.08pm. In the course of that five hour period, the interview was suspended on a number of occasions. The first occasion was when Ms Gunning, the support person, had to leave the interview. The interview was suspended for about five minutes between about 11.55am and midday.

23. [52]

    The second suspension occurred at about 1.36pm, because it was necessary for the police to apply for the extension of the investigating time through the mechanism of a detention warrant, which was subsequently granted at the Bega Local Court. That suspension lasted approximately 80 minutes, by which time Ms Gunning had returned. The interview recommenced at 2.54pm and continued through until 4.08pm.

24. [53]

    At the time that conversation took place, DSC Lugsdin accepted that she knew that the accused had received advice from the ALS that she should not participate in the interview, and that the accused had said that she did not wish to participate in the interview. DSC Lugsdin also accepted, in cross‑examination, that the accused had indicated to her, plainly, and without ambiguity, that she (the accused) did not wish to be interviewed, and did not wish to answer any questions which investigating police might pose to her.

25. [54]

    DSC Lugsdin also agreed that, notwithstanding the accused’s attitude to being interviewed, she took her to the Interview Room without giving her any choice as to whether or not she could accompany the police to that room. DSC Lugsdin agreed that in taking the accused to the Interview Room, she was not “… interested so much in [the accused’s] rights as being interested in getting [the accused] into an Interview Room and putting her before a camera”.

26. [55]

    DSC Lugsdin gave these answers in the course of questioning by the Court:

27. [56]

    At and shortly after the commencement of the interview which was recorded on video, the accused was asked these questions and gave these answers:

28. [57]

    DSC Lugsdin agreed when she heard the first of those two answers that she knew that the accused did not wish to participate in an interview and that that was consistent with what the accused had previously said.

29. [58]

    The following evidence was then given by DSC Lugsdin in answer to questions from the Court:

30. [59]

    DSC Lugsdin later agreed in cross-examination that notwithstanding that, in the course of the interview the accused had said that she was not saying a word and that she did not wish to answer questions, she (Lugsdin) had kept asking questions.

31. [60]

    As has earlier been remarked, this interview then continued for a total of five hours together with the interruptions earlier detailed. During the course of the interview the accused had played to her a series of telephone intercepts, and also the recording which was made by the undercover operative on 27 November 2015.

32. [61]

    In the course of the recorded interview with DSC Lugsdin and Detective Heffernan, those recordings were played, stopped from time to time and the accused was interrogated about what she had said on those recordings.

33. [62]

    At about 3.30pm, Ms Gunning interrupted the questioning to inform DSC Lugsdin that the accused was a diabetic and that she needed to eat something. The accused responded that she was not hungry and Ms Gunning said this to her:

34. [63]

    Detective Heffernan left the Interview Room to obtain some sandwiches. Shortly before he returned, Ms Gunning said to the accused:

35. [64]

    The accused declined to eat anything or to have the cup of coffee that was offered saying, in effect, that she did not care anymore.

36. [65]

    Initially, the Crown proposed to tender this record of interview, and a further one which had been taken by DSC Lugsdin after the accused was in custody on 9 February 2016.

37. [66]

    Order 2 of the Notice of Motion was directed to precluding the admission of these interviews.

38. [67]

    Having regard to what the accused had said to the investigating police about her unwillingness to be interviewed or to answer any questions, the knowledge of the investigating police that she had received legal advice to that effect and the knowledge of the investigating police that she wished to exercise her rights to remain silent, it is, to say the least, surprising that an investigating police officer could have proceeded in the manner which DSC Lugsdin did. That is, to take the accused to the Interview Room without giving her any choice and then to proceed over a lengthy period to interview her intending, notwithstanding the accused’s assertion of her legal rights, to override those rights and obtain admissions from her with respect to the offence.

39. [68]

    On the morning of the second day of the hearing of the interlocutory proceedings, the Crown Prosecutor informed the Court that, having considered the evidence which had been adduced from DSC Lugsdin on the first day and the contents of the records of interview, the Crown did not press for the admission of those records of interview. Accordingly, there is no need, now, for the Court to make Order 2 as sought by the accused in her Notice of Motion.

40. [69]

    However, this material remains of relevance to the consideration of the admissions upon which the Crown wishes to rely that the accused made to DCI McNeill shortly after the record of interview was completed.

41. [70]

    It is necessary now to turn to the particular facts relating to those admissions.

42. [71]

    According to the account given by DCI McNeill, he was present in the detectives’ office whilst the accused was being interviewed. He was informed by DSC Lugsdin about the progress of the interview and he learnt that it had been concluded. He also knew that, from DSC Lugsdin’s account, the accused had not made any admissions in the interview.

43. [72]

    According to DCI McNeill’s statement, he went into the Interview Room at the Bega Police Station shortly after 5pm intending to have a conversation there with the accused. He said that she was present in the Interview Room at that time. It appears from his statement and evidence that he entered the interview room shortly after the conclusion of the interview.

44. [73]

    He said in his evidence that since the interview had concluded, the police investigations had been completed and that the accused, an Aboriginal woman, was going to be charged with murder, he went there to make sure she was OK, and to give her any personal assistance that she might need.

45. [74]

    He said that after a conversation, which it will be necessary recount later, he took her from the Interview Room into the Charge Room and attempted to do some things associated with her welfare.

46. [75]

    The Custody Management records however show something quite different. According to the Custody Management record, at 4.17pm the process of charging the accused with the offence of murder commenced. She had been returned to the Charge Room by DSC Lugsdin and Detective Heffernan. At about 4.37pm, the Custody Manager, Leading Senior Constable Jones, spoke with the accused’s solicitor about the undertaking of a forensic procedure, namely a buccal swab. There were a series of telephone conversations between the solicitor and Ms Gunning, the accused’s support person, and the accused. The solicitor then spoke to the police officer who was to be responsible for the forensic procedure. Ultimately, the solicitor spoke with DSC Lugsdin. At 4.50pm the accused was taken to the “forensic procedure room” and a buccal swab was taken. She was returned to the Charge Room at about 5.03pm.

47. [76]

    The evidence of DSC Lugsdin, supported by the floor plan of the Bega Police Station which was tendered, was that as at December 2015 there was no separate forensic procedure room. Rather, forensic procedures of the kind which were undertaken in this case, namely the obtaining of a buccal swab, took place in the Interview Room.

48. [77]

    Accordingly, it would appear that DCI McNeill went into the Interview Room immediately after the forensic procedure had been completed and some considerable time, in the order of an hour or so, after the formal interview had been completed.

49. [78]

    According to DCI McNeill, he had a conversation with the accused which he described in this way in his statement:

50. [79]

    It is these conversations which the Crown seeks to tender, and which the accused objects to. As well, there is one further short conversation upon which the Crown also seeks to rely.

51. [80]

    After the conversation set out above in paragraph 9 of his statement, DCI McNeill went and spoke to DSC Lugsdin. He brought DSC Lugsdin back into the Interview Room where the accused still was and said to her (the accused):

52. [81]

    A further admission followed. The Crown does not seek to tender this admission, which was made without DSC Lugsdin giving the accused an appropriate warning. However, at the end of the discussion between the accused and DSC Lugsdin, DSC Lugsdin said, amongst other things:

53. [82]

    DCI McNeill then said in his statement that he went back and forth to and from the Charge Room on a number of occasions, in the course of which the accused said:

54. [83]

    He recalled saying to the accused:

55. [84]

    The accused objected to the admission into evidence of the statements which she made to DCI McNeill. In so doing, she submitted that:

56. [85]

    Section 281 of the Criminal Procedure Act makes an admission by a person suspected of having committed an indictable offence, and which is made in the course of official questioning, inadmissible unless a recording is made of that admission, the recording is made available to the Court, or the prosecution establishes that there was a reasonable excuse as to why a recording could not be made.

57. [86]

    The prosecution did not attempt, in the circumstances of this case, by evidence to establish that there was any reasonable excuse as to why a recording of the admissions by the accused to DCI McNeill could not have been made. That is unsurprising considering the admissions were made in the Bega Police Station at a time when there was clearly operable recording equipment available, not only in the station generally, but immediately available in the Interview Room.

58. [87]

    As well, there is no doubt that the accused was, at the time of these admissions, suspected of having committed an offence which was strictly indictable. After all, at the time of making these admissions, the accused had been arrested for having murdered the deceased. Whether her charging had been completed is unclear. The issue which the accused had to prove was that the admissions were made in the course of official questioning.

59. [88]

    The Crown submitted that any discussions between DCI McNeill and the accused which gave rise to the admissions upon which they wished to rely, were not made in the course of official questioning.

60. [89]

    It is necessary, therefore, in order to resolve this objection, to determine the issue between the parties as to whether the admissions were made in the course of official questioning. Official questioning is defined in s 281 of the Criminal Procedure Act in the following way:

61. [90]

    An investigating official, for the purposes of s 281(4)(a) of the Criminal Procedure Act means a police officer. DCI McNeill fell within the meaning of the phrase “investigating official”.

62. [91]

    However, as the authorities show, determining the content of official questioning, and whether as a matter of fact that was occurring, is rather more complex.

63. [92]

    Wood CJ at CL in R v Horton (1998) 45 NSWLR 426, was persuaded that an earlier, but identical, version of s 281 ought be regarded as protective legislation which had the consequence that, in the absence of a clear legislative intention to the contrary, it ought not be read down but should be given its full effect. His Honour also held that the mischief to which such legislation was directed was:

64. [93]

    The High Court of Australia in Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 considered Tasmanian legislation which was in essentially identical form to s 281. There the majority held that a person may make admissions during official questioning without those admissions necessarily being responsive to any particular question. At [45] Gleeson CJ, Hayne and Heydon JJ said:

65. [94]

    At [52] their Honours said:

66. [95]

    Howie J concluded in R v Naa [2009] NSWSC 851; (2009) 197 A Crim R 192 that an admission made during the course of a police stand-off, at a time when police officers were armed with weapons trained on the accused, and when the officers were attempting to build some rapport with the accused so as to peacefully end the confrontation, could not be described as official questioning. His Honour was persuaded that there may be some police procedures before or after an arrest that did not fall within the ambit of s 281 “… because they are not in connection with an investigation …” at [77].

67. [96]

    In his evidence, DCI McNeill said that he had been in Bega Police Station on 1 December 2015 for two reasons or, put more informally, wearing two hats. The first was as the senior detective in the LAC to provide resources and support to his detectives and ultimately being responsible for all that was being done in the operation which involved the arrest and questioning of the accused. The second role which DCI McNeill was performing was to be the Aboriginal Issues Officer who would attend to any issues relating to the indigeneity of the accused.

68. [97]

    DCI McNeill denied that, in the course of opening the conversation with the accused, he gave her the impression that he was not involved in the investigation. He was asked whether he told the accused that he was not recording their conversation because he wanted to give her the impression that he was not involved in the investigation. His answer was:

69. [98]

    DCI McNeill accepted that the accused might well have thought that, in light of everything which had been said and the facts and circumstances which preceded their conversation, what she said to him would be “off the record”. His evidence was this:

70. [99]

    He also gave this evidence:

71. [100]

    Further on, he gave this evidence:

72. [101]

    In considering the issue of whether what transpired between DCI McNeill and the accused constituted official questioning, it would be wrong to confine the official questioning just to the period of time in which the interview conducted by DSC Lugsdin took place in the Interview Room. There is no doubt that DSC Lugsdin’s interview fell within the phrase “official questioning”.

73. [102]

    To do so would be to ignore the reality of what occurred. In the first place, the accused was arrested, given the appropriate warning and then brought to the Bega Police Station. There she was informed that the police wished to interview her. She took advice about that, as I have earlier recounted. Notwithstanding the advice she received, she was taken by the police and put into the Interview Room. There she was subjected to questioning for over five hours with the breaks which I have detailed. Having been removed from that room and charged, the accused was then taken back into it and subjected to a further investigative procedure to which she did not consent, but to which she submitted once an order had been made.

74. [103]

    In the course of that forensic procedure, although the evidence does not provide complete detail of it, I infer that the accused would have been subjected to some, at least, formal questioning for the purposes of that procedure.

75. [104]

    Almost immediately upon the conclusion of it, the accused was again spoken to in the same room, by DCI McNeill. He was the officer who had ultimate responsibility for the investigation. According to his evidence, the accused would have understood that he was both the senior detective in the LAC and also the Aboriginal issuer officer.

76. [105]

    In my view, the questioning fell within the expression “in the course of official questioning”. The police were not engaged in some peripheral activity. On the contrary, the accused was in the process, speaking generally, of being arrested, charged, questioned, and the subject of a forensic procedure. All of this was in the police station. DCI McNeill, when he went to speak to the accused, intended that anything which the accused said to him which implicated her in the commission of the offence would be recorded by him in the sense of it later being written down, and that it could be tendered in evidence against her if legally permissible. In other words, he was not engaged in an activity which had nothing whatsoever to do with the official investigation of the accused. His discussion with the accused was an ongoing part of that overall investigation, arrest and charging procedure and, so it seems to me, official questioning.

77. [106]

    The position of DCI McNeill is to be contrasted with that of the Custody Manager. The Custody Manager has no role to play in the investigation of the crime. The task of that officer is to ensure that a person charged with an offence is dealt with in accordance with proper police procedure. If that officer was to make an enquiry with a charged person about, for example, the notification of a relative and received a voluntary admission, then it may be difficult to conclude that such an admission came in the course of official questioning. But it seems to me that when a charged person is in the confines of the interview room at a police station whilst the arrest, interviewing, evidence gathering and charging process is taking place, and that person is spoken to, in that environment, by the senior detective in charge of the LAC, and ultimately of the whole investigation, such questions as may be asked and such answers as may be given fall within the course of official questioning.

78. [107]

    For that reason, I am satisfied that the admissions made by the accused to DCI McNeill, both in the Interview Room and later in the Charge Room area, were admissions made in the course of official questioning. They were made to an investigating official, namely a police officer, and accordingly, on the evidence before me where the prosecution did not attempt to establish any of the alternatives referred to in s 281(2)(a) or (b), the admissions made to DCI McNeill are inadmissible.

79. [108]

    If I be wrong in the conclusion about official questioning, then it is necessary to consider the objection of the accused based upon the other provisions of the Evidence Act.

80. [109]

    Counsel for the accused submitted that the admissions to DCI McNeill were influenced by oppressive conduct towards the accused within the meaning of s 84 of the Evidence Act. Counsel submitted that oppressive conduct was constituted by the fact that the accused was subjected to a lengthy interview process by DSC Lugsdin, over her protestation that she did not wish to be interviewed, in light of all of the circumstances including nature and content of the questioning having regard to the accused’s mental vulnerability.

81. [110]

    It is necessary to consider whether such conduct as is described, constitutes oppressive conduct for the purposes of s 84 of the Evidence Act. The “oppressive conduct” is nowhere defined in the Evidence Act, however it has been held that it is not necessary to isolate a single incident of conduct which provokes an admission as constituting oppressive conduct: R v Ye Zhang [2000] NSWSC 1099; Higgins v R [2007] NSWCCA 56 at [26] per Hoeben J (with whom Sully and Bell JJ agreed). As Hoeben J said at [26]:

82. [111]

    The decided cases do not proscribe the boundaries of oppressive conduct.

83. [112]

    The Court of Appeal considered the meaning to be given to s 84 in Habib v Nationwide News Pty Ltd [2010] NSWCA 34; (2010) 76 NSWLR 299. At [241], their Honours said:

84. [113]

    Hamill J, in R v Sumpton [2014] NSWSC 1432 held at [123] that the concept of oppressive conduct should be read ejusdem generis with the other proscribed conduct identified in s 84. He said:

85. [114]

    Hamill J in Sumpton also held by reference to the decision of the UK Court of Appeal in Regina v Fulling [1987] QB 426, that conduct in the case which he was deciding could properly be described as oppressive in circumstances where:

86. [115]

    In circumstances where an objection under s 84 is raised, the terms of the section have the consequence that the prosecution bears the burden of demonstrating that the admission and the making of the admission was not influenced by, in this case, oppressive conduct towards the person who made the admission.

87. [116]

    As is clear from the short review of the relevant authorities, oppressive conduct does not have to be perpetrated by the person to whom the admission is made. On the contrary, the totality of the facts and circumstances leading up to the admission which, here, means examining all that occurred at the Bega Police Station prior to the admissions being made, may be relevant in considering whether oppressive conduct occurred and, if so, whether the prosecution has persuaded the Court that the admissions were not influenced by that conduct.

88. [117]

    The submission of the accused is that the conduct of the police, in particular DSC Lugsdin and Detective Heffernan in the course of the recorded interview between about 11am and 4pm, was oppressive and that having regard to the fact that the accused had been returned to the Interview Room where the conversation with DCI McNeill initially took place, it could not be said that the earlier oppressive conduct had ceased to have any influence on the accused at the time she made the admissions.

89. [118]

    In my view, these submissions should not be accepted. Having said this, I am satisfied that the conduct of the police and the manner in which they dealt with the accused in the record of interview can properly be described as the exercise of authority and power in a wrongful manner. That is because they failed to accord to the accused her lawful right not to be interviewed and to give effect to her request not to be interviewed and, in so doing, placed an unreasonable burden on the accused, particularly by the interviewer’s exhortation to the accused to tell the truth, thereby constituting oppressive conduct.

90. [119]

    Despite my finding that the conduct of the police in interviewing the accused constituted “the exercise of authority and power in a burdensome, harsh and wrongful manner” (in the words of Hamill J), I am not convinced that such conduct reaches the threshold of conduct which is proscribed by s 84 of the Evidence Act and which is described as “violent, inhuman and degrading conduct”. There is some tension between these two descriptions of “oppressive” in s 84 of the Evidence Act.

91. [120]

    Nevertheless, it is not necessary for me to resolve this tension since I am not persuaded that by the time DCI McNeill entered the Interview Room to speak with the accused, any effects of that conduct were still operative.

92. [121]

    By the time DCI McNeill entered the Interview Room about one hour had passed since the conclusion of the formal interview. During that period of time, the accused had been moved between locations and had spoken to and received advice from a solicitor about the proposed forensic procedure. The accused would have realised that at the time she was speaking to DCI McNeill, neither DSC Lugsdin nor Detective Heffernan, the two interviewing detectives, were in the Interview Room and that DCI McNeill had not at that time treated her in any way that mimicked the way in which the accused had been spoken to during the recorded interview. The accused herself has not given evidence on the voir dire that at the time she was speaking to DCI McNeill, she felt overwhelmed or else adversely affected by what had occurred. There was no indirect evidence of the accused’s feelings of this kind.

93. [122]

    In those circumstances, I am satisfied that the Crown has demonstrated the absence of any influence on the accused of the impugned conduct, when she spoke with DCI McNeill.

94. [123]

    I would not reject the evidence pursuant to s 84 of the Evidence Act.

95. [124]

    It is convenient to deal here with the accused's objection to the admissions being permitted to be adduced in evidence pursuant to s 138 of the Evidence Act. That section provides for the exclusion of improperly or illegally obtained evidence. It requires as a threshold matter that the accused establish that the evidence i.e. the admissions made to DCI McNeill, were obtained improperly or in contravention of an Australian law, or else in consequence of such impropriety or illegality.

96. [125]

    The accused submitted that, as with s 84 of the Evidence Act, the evidence was obtained as a consequence of impropriety because, whilst no impropriety was suggested directly on the part of DCI McNeill, at the time she made the admissions to him, the accused was under the continuing influence of the earlier impropriety of DSC Lugsdin in her conduct of the recorded interview.

97. [126]

    I have found that, with respect to s 84 of the Evidence Act, at the time of the discussion with DCI McNeill, the earlier impugned conduct of DSC Lugsdin had ceased to have any operative effect on the accused. I am satisfied such a conclusion means that the accused fails to meet the threshold for s 138 of the Evidence Act, namely that the evidence was obtained in consequence of an impropriety.

98. [127]

    Accordingly, I would not uphold the accused’s objection under s 138 of the Evidence Act.

99. [128]

    The accused also relies upon the provisions of s 85 of the Evidence Act.

100. [129]

     Section 85 will apply to the admissions here, if the admission was made by an accused to an investigating official who at that time is performing functions in connection with the investigation of the commission of an offence. According to the dictionary to the Evidence Act, an investigating official includes a police officer. DCI McNeill accepted that at the time the admissions were made to him, he was performing functions in connection with the investigation of the commission of an offence. That was because he was present in Bega Police Station for two co-existing reasons. The first was as the senior detective in the LAC to provide resources and assistance to the investigating officers, and the second was as the Aboriginal Issues Officer for the LAC.

101. [130]

     True it is that in commencing the particular discussion with the accused, DCI McNeill introduced it by referring only to his role as the Aboriginal Issues Officer, however, for the purposes of s 85, he was still at that stage a police officer who was performing his functions as a detective in overall charge of the investigation. He did not renounce those functions whilst undertaking this questioning. Moreover, as he agreed, he fully intended to record any admission which the accused might have made by making a written note at the conclusion of his interview. Further, he fully intended that any such admission would be used in evidence against the accused if it was lawfully permissible. It cannot be said that DCI McNeill had abandoned his role as the detective in overall charge of the investigation.

102. [131]

     Accordingly, s 85 applies to the admissions made to DCI McNeill by the accused. The next matter for the purposes of s 85 is to consider whether:

103. [132]

     Section 85(3) requires the Court, in addition to any other relevant matters, to take into account any relevant condition or characteristic of the person who made the admission, including any mental disability to which the person was subject. As well, if the admission was made in response to questioning, the Court is to have regard to the nature of the questions and the manner in which they were put and any inducement which may have been made to the person questioned.

104. [133]

     The accused submitted that the entire circumstances of the recorded interview, but in particular the fact that the accused attempted to tell the police that she did not want to answer any questions (see Qs 6, 15, 32-34, 41, 50, 58, 61-63, 66, 69-71, 88, 104, 106, 112, 115, 116 and 120 of the recorded interview) and, more importantly, that the accused was being effectively cross-examined by the police with exhortations to tell the truth, meant that by the time DCI McNeill enquired after the accused’s welfare, she was still under the exhortation to “tell the truth”.

105. [134]

     The accused pointed to the following questions and answers in the record of interview:

106. [135]

     In submissions, the accused drew attention to the fact that, as set out above in paragraph 11 of DCI McNeill’s statement which appears at [78], he too exhorted her to tell the truth. In particular, the accused’s submissions drew attention to the fact that DCI McNeill had said that the deceased’s mother would like to know the truth. She further submitted that it was only after those two exhortations that further admissions as to the detail of what steps the accused had taken were given to DCI McNeill.

107. [136]

     Having regard to those matters, the accused submitted that the circumstances were such that the Crown needed to demonstrate that it was unlikely that the truth of the admission was adversely affected, and that the Crown had not discharged that burden.

108. [137]

     I do not accept this submission. The circumstances, including the exhortations to tell the truth, are far more likely to have led not to the admission being inaccurate, untruthful or unreliable but, on the contrary, to the accuracy of the admission. In other words, if the accused accepted the blandishments of DCI McNeill to “tell the truth because the deceased’s mother would want to know the truth” then such circumstances, so it seems to me, make it more likely that the admission would contain the truth, not less likely. Section 85 is directed to the likelihood of the truthfulness of the admission being affected by the circumstances in which it was elicited in the presence of the investigating official. I am not satisfied that the circumstances here were such as to affect the truth of the admission.

109. [138]

     I do not uphold this objection.

110. [139]

     Finally, the accused submitted under s 90 of the Evidence Act that it would be unfair to use the evidence of the various admissions made to DCI McNeill because, clearly, the accused was under the impression from all of the circumstances that she was speaking to DCI McNeill “off the record” and that as a consequence any admission made by her would not be tendered in evidence against her.

111. [140]

     Section 90 of the Evidence Act provides as follows:

112. [141]

     In Em v The Queen [2007] HCA 46; (2007) 232 CLR 67 at [56], Gleeson CJ and Heydon J said of s 90:

113. [142]

     At [94], Gummow and Hayne JJ said:

114. [143]

     They went on to say at [107]:

115. [144]

     Their Honours added at [114]:

116. [145]

     The factual circumstances which are relevant to the determination of this objection seem to me to be relevantly these:

117. [146]

     There is no question that DCI McNeill, a very experienced detective and senior officer in the police force, would have known that it was appropriate to caution a person before having them say anything about their involvement in an offence. DCI McNeill was conscious before any conversation started, that he intended to record any admission made by the accused by making a note of it in writing as well as then involving DCI Lugsdin.

118. [147]

     In my view, DCI McNeill, by using the words that he chose to use in the Interview Room without the recording equipment being switched on, and by telling the accused that he was not recording the interview, created a clear impression from which, I am persuaded, the accused would have readily concluded that anything which she said to him was “off the record”.

119. [148]

     The facts which point to that conclusion are:

120. [149]

     In my view, DCI McNeill’s concession in cross-examination that the circumstances were such that the accused may well have formed the view that what she was saying was off the record, was correctly made, because all of the objective facts point to such a conclusion.

121. [150]

     In my view, these admissions were made by the accused in circumstances which were fundamentally unfair to her. I am satisfied she thought that the admissions which she made to DCI McNeill were off the record. That was not DCI McNeill’s intention in speaking to her. His intention was to record any admissions if they were made in the course of a conversation about the welfare of the accused. The admissions were made in circumstances where no warning was given of the ordinary kind. Such warnings are given to people suspected of committing offences because fairness and police practice requires them to be given.

122. [151]

     I accept as is apparent from previous remarks in this judgment that the admissions made by the accused are of significant probative value. I also accept that the circumstances in which they were made do not cast any doubt upon their reliability.

123. [152]

     Nevertheless, weighing up all of the circumstances in which the admissions were made to DCI McNeill, and in particular the conclusion I have reached that the accused was likely to have believed that such comments as she made to DCI McNeill were off the record, I am satisfied that it would be unfair to the accused to use the evidence against her, and that it is appropriate to refuse to admit the evidence tendered by the Crown of any statements made by the accused on 1 December 2015 to DCI McNeill.

124. [153]

     Accordingly, I am satisfied that I should make Order 3 as called for in the Notice of Motion.

Order 1 – Admissions to Undercover Operative

1. [154]

   Michael O’Brien, a pseudonym used to avoid revealing the true identity of a civilian undercover operative, who does not live or work in Bega or the Bega area, was retained by the police to travel from his home to Bega and to strike up a relationship with the accused. Mr O’Brien understood from the police that the accused was believed to have been involved in the death of the deceased. His task was to obtain from her admissions as to her role in that death.

2. [155]

   Mr O’Brien has been engaged in like tasks over a period of about 20 years, and had been engaged by police in NSW on about 12 previous occasions in similar undercover work. Prior to his meeting with the accused, the police gave him some details about the death of the deceased, including where she had been found but not, initially, the mechanism of death.

3. [156]

   At the time that Mr O’Brien set out to meet the accused, she was taking prescription medication for depression. She was also in a state of grief arising from the death of Mr Webber, generally referred to in the pre-trial proceedings as “Bernie”, who had committed suicide on 21 October 2015. Webber was thought by police to have been the principle perpetrator of the murder of the deceased, Ms Cave.

4. [157]

   In order to develop a relationship with the accused when he first met her by intentionally walking into her, Mr O’Brien informed her that he was a friend of Webber’s from Western Australia where he worked in the mines. That was on Tuesday 24 November 2015. Mr O’Brien then set about developing a relationship with the accused which involving the strategy of being a long‑standing friend of Webber and coming to Bega to see if he could provide the accused with assistance, including moving her to another place to live. Over a short space of time, Mr O’Brien was able to develop a friendly relationship with the accused.

5. [158]

   On 24 November 2015, after first meeting with her, Mr O’Brien and the accused went to the Commercial Hotel for lunch. He encouraged the accused to talk about her relationship with Webber. Initially the accused informed Mr O’Brien that the deceased had been murdered, but she did not provide any detail at all about any involvement which she or Webber had in the murder.

6. [159]

   However, in the course of discussion on that day the accused did tell Mr O’Brien that she was somewhat jealous of the deceased, whom she thought was interfering in her relationship with Webber.

7. [160]

   Mr O’Brien opened up the issue of the death of the deceased on that afternoon in this way:

8. [161]

   This was the first attempt initiated by Mr O’Brien to obtain a full explanation from the accused with respect to the murder of the deceased.

9. [162]

   Having stayed at the hotel for a good part of the afternoon consuming alcohol, Mr O’Brien and the accused parted and made arrangements to meet the following day, 25 November 2015. A conversation occurred later that evening by telephone between the accused and Mr O’Brien, which was intercepted and lawfully recorded.

10. [163]

    On the morning of 25 November 2015, Mr O’Brien collected the accused from her flat in Bega and drove her to Merimbula, approximately 30km away. After visiting Merimbula, Mr O’Brien drove the accused to the Mogareeka Bridge at Tathra, which is where the deceased’s body was located. He parked the vehicle on the northern side of the bridge and walked with the accused along the footpath on the bridge. As they were walking, Mr O’Brien asked the accused to tell him what happened there. The accused then gave a version of the murder of the deceased. In particular, the version given by the accused involved Webber using a blunt instrument to hit the deceased who was visiting the public toilet in the vicinity of the bridge at the time, and that a blue and yellow rope which was tied onto the bridge was then used to strangle the deceased.

11. [164]

    According to Mr O’Brien’s statement, he was told a number of different things by the accused with respect to the murder and he commented that the accused’s version of events changed at times.

12. [165]

    Later in the afternoon of 25 November 2015, at Club Bega, according to Mr O’Brien’s statement the accused again gave another account of the murder.

13. [166]

    On 27 November 2015, Mr O’Brien made arrangements to meet with the accused and spend some time with her. As it turned out, he spent about 2½ hours with her on the morning of that day, during which time all of his interactions with the accused were either recorded by means of a video camera which was installed in his car, or else by an audio facility, pursuant to a warrant issued under the Surveillance Devices Act 2007.

14. [167]

    During the course of that morning, Mr O’Brien drove the accused to where Webber used to live. They entered the house and had a conversation there. After a while he drove her again to Mogareeka Bridge, stopped at the bridge and they then walked over it. He then returned to Bega. Later on in the afternoon of 25 November 2015, Mr O’Brien had a telephone conversation with the accused which was lawfully recorded.

15. [168]

    Mr O’Brien gave evidence on the voir dire. In his evidence he described the accused’s demeanour as being happy at times and sad at times, particularly when they spent time together on 27 November 2015.

16. [169]

    Mr O’Brien told the Court that throughout the time he was in conversation with the accused, from 24 to 27 November 2015, she “… kept mentioning Bernie all the time, that she’d hear his voice, things like that”, and further:

17. [170]

    He said that the accused had been the first in the course of their communications to speak of communicating with Webber in one way or another since his death and that in his discussions with the accused he had used the topic of communicating with Webber or Webber’s spirit as a way of encouraging disclosures by the accused. .

18. [171]

    Mr O’Brien reluctantly accepted in his evidence that, in the course of his working with the police, he had developed an expertise in assisting them by working in an undercover role. He ultimately agreed that having regard to the number of times which he had undertaken that role, he had become better each time. He said he had a natural talent for developing relationships with people and obtaining admissions. Again somewhat reluctantly, Mr O’Brien nevertheless agreed that his approach to the accused at a time when she was grieving for her late partner, Webber, had the effect of causing her to drop her defences to a degree. He also agreed this:

19. [172]

    Somewhat later Mr O’Brien agreed that he intentionally gave the accused the impression that Webber was speaking to him through the “spirit world” and that he would repeat that to her quite often. He agreed that he used the phrase “Bernie wants you to tell me what he done” or a similar phrase from time to time in order to obtain an admission from the accused.

20. [173]

    In answer to the questions from the Court, Mr O’Brien agreed that he used the spirit of Webber to invite the accused to fully disclose what happened, because he said to her that “That’s what Bernie would want you to do”. He agreed that he also told the accused that Webber would be proud of her for telling him the truth.

21. [174]

    Tendered, and marked as an exhibit, was an extract of the conversation between Mr O’Brien and the accused on 27 November 2015, as recorded in the transcript of the listening device used on that day, which notes and emphasises Mr O’Brien’s exhortation to the accused to tell him everything which occurred, and his use of the “device” of Webber’s spirit.

22. [175]

    It is unnecessary to set out the entirety of those extracts to all of which I have had careful regard. However, the following give a sufficient impression – the timings on the tape are noted:

23. [176]

    This summary is sufficient to give an indication of the nature and extent of the materials which the Crown wishes to tender as constituting admissions, and the circumstances in which those admissions were obtained.

24. [177]

    The accused submitted that the Court ought not permit the Crown to rely on these admissions. The objections are based upon the provisions of ss 84, 90 and 138 of the Evidence Act. With respect to the objection under s 84, the accused submitted that in his dealings with her, Mr O’Brien’s conduct was psychologically oppressive of her when viewed in the light of the peculiar circumstances of her misplaced belief in the genuineness of their relationship and her isolated and emotional state. In particular, the accused points to the repetitive use of two techniques by Mr O’Brien, namely, a constant exhortation to tell him the truth in order to set her free or enable her to move forward, as a precursor step for him to provide the assistance that she wanted; and the invocation of Webber’s spirit to justify her giving a full account of the events which occurred.

25. [178]

    The accused submitted that the evidence demonstrates that she had a genuine belief that she could communicate with the late Mr Webber whereas, as a matter of objective rationality, such communication could not in fact have occurred. The accused submitted that the Court would infer that this was a delusional belief and that in light of that delusional belief the accused was vulnerable to any conduct of the kind that Mr O’Brien used which exploited that belief. In that way the accused argued that the conduct was oppressive within the meaning of s 84 of the Act.

26. [179]

    The accused submitted that by reference to the contemporaneity of the admissions to the invocation of Webber’s spirit by Mr O’Brien, it was demonstrated that the Crown has not discharged its onus of satisfying the Court that the oppressive conduct did not influence the accused in making the admissions.

27. [180]

    As I have earlier remarked, the concept of oppressive conduct is not defined in the Act. It certainly can include psychological conduct.

28. [181]

    In considering whether or not Mr O’Brien’s conduct and that of the police in seeking his assistance, can be regarded oppressive conduct, it is necessary to have regard to all of the circumstances including any observation which can be drawn from the video recording of the accused as she talks to Mr O’Brien and from the audio recording of the same encounter on 27 November 2015.

29. [182]

    It cannot be doubted that Mr O’Brien was engaged in an exercise of trickery and deception. He pretended to be someone who he was not, namely an old friend of the later Mr Webber. He pretended that he was going to help the accused deal with the aftermath of Mr Webber’s death and all of her personal circumstances by assisting her to move out of Bega to Newcastle where her sister lived. He told her that he was going to provide transport to assist with that move. As well, Mr O’Brien engaged with the accused through her delusional belief that she was able to communicate with Webber’s spirit. It was through a combination of those entirely deceptive pretences, and only by those pretences, that the admissions of the accused were obtained.

30. [183]

    In considering oppressive conduct in the circumstances here, the question is whether the combination of the trickery and deception and in particular the invocation of Bernie’s spirit placed undue psychological pressure on the accused such that it is possible that the admissions made by the accused were not made voluntarily because they have not been shown by the Crown not to have been influenced by the impugned conduct.

31. [184]

    I have concluded from reviewing all of the evidence, that the accused has not satisfied me that Mr O’Brien’s conduct towards the accused was oppressive nor that the police’s conduct in combination with that of Mr O’Brien towards the accused was oppressive. It follows that I am satisfied that the admissions which the Crown wishes to tender are not inadmissible by reason of s 84 of the Evidence Act.

32. [185]

    I have come to that conclusion because in viewing, listening to and reading the interaction between the accused and Mr O’Brien, it is not at all apparent that the accused felt under any compulsion at all to provide answers to Mr O’Brien’s entreaties. She did so because she enjoyed a comfortable relationship with Mr O’Brien, albeit one of only a short period, and because she wanted his assistance to leave Bega and move to Newcastle. As it seems to me, the admissions by the accused were freely made, and often volunteered. In so doing, she showed no reluctance to describe any of the events which occurred. She did not protest at any time that she was uncomfortable in providing details of what occurred to Mr O’Brien, nor did she express any inhibition about doing so. Rather, it seems to me that the accused was willing to proffer the admissions because of the friendly relationship which had been engendered between Mr O’Brien and her. It was because of Mr O’Brien’s pretence of being an old friend of Webber, and his pretence that he knew what Webber would want, that the accused disclosed the facts which she did.

33. [186]

    I do not think that these features demonstrate oppressive conduct of the kind to which s 84 of the Evidence Act refers. I do not think it possible to equate a feeling of psychological comfort of the kind which the accused obviously felt with Mr O’Brien with the notion of mental and psychological pressure sufficient to constitute oppressive conduct. Accordingly, I would not uphold the accused’s objection on the basis of s 84 of the Evidence Act.

34. [187]

    The next objection deals with s 138 of the Evidence Act.

35. [188]

    As discussed earlier, a consideration of the objection under this section commences with an identification of the threshold issue, namely whether there has been the improper or unlawful obtaining of evidence, or the obtaining of evidence in consequence of an impropriety or a contravention of an Australian law.

36. [189]

    The accused did not submit that her admissions to Mr O’Brien were obtained in contravention of any Australian law or in consequence of such contravention. However, she submitted that Mr O’Brien’s conduct, which I have earlier discussed, was improper within the meaning of that term in s 138 of the Evidence Act.

37. [190]

    The accused accepted that the mere fact that Mr O’Brien was acting as part of a police undercover operation, and was creating a fiction about who he was, did not of itself constitute improper conduct: see Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396.

38. [191]

    However, the accused submitted that Mr O’Brien’s conduct and the way he went about obtaining the admissions was improper for the purpose of s 138 of the Evidence Act. I have earlier discussed whether that conduct could be regarded as oppressive and concluded that it did not constitute conduct of that kind. I am unable to see by reference to any norm of conduct, setting aside the deception involved in Mr O’Brien’s presence and the character which he created, any impropriety with respect to his conduct. He encouraged the accused to disclose to him what happened but, in so doing, he was not overbearing the accused’s will. The accused had a choice whether to tell Mr O’Brien what happened or not. She chose to exercise that choice.

39. [192]

    Because the accused has not persuaded me that there was any impropriety with respect to the obtaining of the evidence, I am not satisfied that any objection pursuant to s 138 of the Evidence Act ought be upheld.

40. [193]

    If I had come to consider the exercise of discretion under s 138, I would be inclined to the view that the prosecution had discharged the onus resting upon it because the desirability of admitting the evidence outweighed the undesirability of admitting the evidence.

41. [194]

    Having regard to the factors in s 138(3) of the Act, it is appropriate that I remark that the probative value of the evidence is high. The evidence contains (although it may be only one version of what occurred) a first-hand account of the events that occurred which led to the death of the deceased by one of the two people who was involved according to the admissions. The other person, being deceased, is unable to provide any information.

42. [195]

    The evidence is important to the proof of the Crown case because it is the principal evidence upon which the Crown relies.

43. [196]

    Having regard to the fact that the offence charged is one of murder, the public interest in the conviction and punishment of an individual for such a crime, being such a serious one, militates in favour admission of the evidence: s 138(3)(c): R v Dalley [2002] NSWCCA 284; (2002) 132 A Crim R 169 per Spigelman CJ at [5]-[7]; R v MM [2004] NSWCCA 364 at [54].

44. [197]

    Even allowing the entirety of the criticisms of the impropriety of Mr O’Brien which the accused attributes to him, and for reasons which I have earlier expressed I do not regard them as an impropriety, the gravity of those improprieties, giving them full weight, would not, so it seems to me in the balancing exercise, outweigh the high probative value of the evidence, the importance of it and the nature of the relevant offence, in particular the seriousness of the offence. However, it is not necessary that I proceed to such a determination.

45. [198]

    Finally, the accused relies upon s 90 of the Evidence Act to preclude the admission of any of her conversations with Mr O’Brien, submitting that there was a fundamental unfairness about all of the facts and circumstances surrounding the obtaining of the admissions such that it would be unfair to the accused to use the evidence.

46. [199]

    In addition to the matters which have previously been canvassed, the accused pointed to the fact that the admissions contain in part an account of events which could not have happened. A clear example is that, in the course of the discussion on 27 November 2015, on one occasion the accused said that the victim was stabbed and her face was “smashed in”. The objective facts relating to the death of the deceased gathered from post-mortem examination, demonstrate that the deceased was not stabbed and that she suffered no injury to her face, although she had an injury to the rear of her skull. As well, the accused says that the deceased was hung from the bridge by a particular identified rope which was blue in colour. Again, the accused submitted that by reference to the objective facts, that did not occur.

47. [200]

    Hence the accused submits that her account relied upon by the Crown as an admission is unreliable and that that is an important factor in the consideration by the Court of the discretion under s 90 of the Evidence Act. Inherent in that submission is that the unreliability of the admissions relate to, or arise from, the conduct of Mr O’Brien in eliciting the admissions by his exhortations to the accused to tell him the whole truth, and that by reference to Webber’s spirit, that that would be what Webber wanted her to do.

48. [201]

    I am not satisfied that the mere fact that more than one version of the facts and circumstances leading to the murder as given by the accused makes her admissions unreliable. It is a matter for the jury to be satisfied whether they accept one or other version proffered by the accused of how the deceased was killed. In that consideration they will be assisted by such other evidence as the Crown leads before them. To the extent that one or other of the accounts of the excused does not accord with that evidence, the jury is free to disregard it but believe the account of the accused which does accord with the evidence.

49. [202]

    I am unable to see that there is any unfairness to the accused in the use of this evidence in this respect, nor that her admissions unreliable.

50. [203]

    In reaching this conclusion, I have kept in mind and had regard to the fact that it is neither improper nor is it unlawful for the police to have used a method involving deception and trickery by employing an undercover operative. Nor was it unlawful to record what was being said by the accused. In other words, evidence was obtained and recorded in circumstances which were neither illegal nor improper. Within the conversations, in no sense has Mr O’Brien overborne the will of the accused to make her admissions. On the contrary, as I have earlier remarked, they were freely proffered.

51. [204]

    I am not satisfied that the accused has demonstrated any basis for the rejection of this evidence under s 90 of the Evidence Act.

52. [205]

    Accordingly, I decline to make Order 1 in the Notice of Motion.

Summary

1. [206]

   I note that the Crown no longer tenders the recorded conversations between DSC Lugsdin and the accused which were taken on 1 December 2015 and 9 February 2016. Accordingly, Order 2 of the accused’s Notice of Motion of 31 March 2017 is unnecessary.

2. [207]

   I decline to make Order 1 in the accused’s Notice of Motion of 31 March 2017. I see no reason why any admission made by the accused to the undercover operative known as Michael O’Brien should be excluded from the Crown case.

3. [208]

   I am persuaded that I should make Order 3 in the accused’s Notice of Motion of 31 March 2017 with the effect that any admission made by the accused to or in the presence of DCI McNeill on 1 December 2015 is not admissible in the proceedings.

4. [209]

   I make the following orders:

   1. (1)

      Decline to make Order 1 in the accused’s Notice of Motion of 31 March 2017.

   2. (2)

      Any admission made by the accused to or in the presence of DCI McNeill on 1 December 2015 as per Order 3 of the accused’s Notice of Motion of 31 March 2017, is not admissible in these proceedings.

   3. (3)

      Notice of Motion of 3 March 2017 is otherwise dismissed.