R v Tarantino (No 6)

1. [1]

   At the time of the “publication” of these reasons the Court made an interim suppression order under s 10 of the Court Suppression and Non Publication Orders Act 2010 restricting the disclosure of the reasons to the parties, the Commissioner of Police, the investigating police officers and their respective legal representatives. At the time this order was made, the trial before a jury was about to commence. However this was not the reason for the making of the order. Instead, it was a reason why a temporary order was made in that the pending jury trial allowed time for these reasons to be reviewed with a view to determining which part or parts of the judgment will be the subject of a final order once the trial is complete. The actual reason for the suppression order cannot be disclosed without compromising the legal interest the order sought to protect. The order is mandated by legislation that also cannot be publicly identified without compromising the interest that the legislation seeks to protect. However, as proof of the law of unintended consequences, I note that the legislation mandates suppression even though the relevant facts and circumstances are widely known and have been publicly available on the world wide web for years.

2. [2]

   On 20 November 2016, the accused, Vinzent Tarantino, was charged with, inter alia, murdering Ms Quanne Diec on or about 27 July 1998 at Granville in New South Wales. He was refused bail. He has been held on remand ever since. In 2018, Mr Tarantino was committed for trial. He has been arraigned in this Court on a number of occasions. On the most recent occasion that he was arraigned, namely 22 July 2019, the indictment charged a sole count of murder. Mr Tarantino pleaded not guilty.

3. [3]

   A significant part of the Crown case against Mr Tarantino are admissions made or alleged to have been made by him on 20, 23 and 28 November 2016. These admissions are contained or recorded in the following forms:

4. [4]

   Senior Counsel for Mr Tarantino, Ms Rigg SC, objected to the Crown adducing evidence of any and all of these admissions. As explained below, Ms Rigg invoked ss 84, 85 and 90 of the Evidence Act 1995 (the “Evidence Act”). Ms Rigg also indicated that if the objections under those provisions to the admission of the statements of Senior Constable Brooks and Senior Constable Wang were rejected then, at a later time, an objection to their admission under s 281 of the Criminal Procedure Act 1987 would be argued.

5. [5]

   Commencing on 22 July 2019, the Court conducted a voir dire hearing although it was interrupted by an inquiry into whether Mr Tarantino was fit to be tried (R v Tarantino (No 4) [2019] NSWSC 1055). On 27 August 2019, submissions on the voir dire concluded.

6. [6]

   On 30 August 2019, I pronounced my ruling, namely that the objections based on ss 84, 85 and 90 were rejected and that the evidence of the admissions described at [3] were admitted save that admission into evidence of the admissions recorded in the statements of Senior Constable Brooks and the statement of Constable Wang are subject to the resolution of an objection under s 281 of the Criminal Procedure Act 1987. At the time of the ruling I stated that the reasons for the ruling would follow shortly. This judgment constitutes those reasons.

7. [7]

   The submissions in support of the objection are addressed below. At the core of the objection was a contention that the admissions were induced by actual threats made to Mr Tarantino on behalf of the “Rebels” motorcycle gang or that the admissions were made in circumstances where Mr Tarantino genuinely believed that such threats had been made and were ongoing. For the reasons set out below, I reject the former but accept the latter in relation to the admissions made by Mr Tarantino to the police officers, although I find that his belief that such threats were made were the product of his deluded mental state. Before addressing the bases for objection in light of those findings, it is necessary to explain the (complex) factual background to Mr Tarantino’s attendance at Surry Hills Police Station on 20 November 2016, including how his suspected involvement in Ms Diec’s disappearance became connected, at least in his own mind, with his presence at a nightclub in November 1997 when three people were shot and killed.

The Black Market Café Shooting and Ms Diec’s Disappearance

1. [8]

   In the early afternoon of Sunday, 9 November 1997, three persons were shot and killed in the basement of the Black Market Café in Chippendale. In June 1999, the trial of two persons charged with the murders commenced before Dowd J. On 22 August 2009, they were found guilty. They were convicted and sentenced (R v Georgiou & Harrison [2000] NSWSC 287). In November 2001, an appeal against conviction was allowed (Georgiou & Harrison v R [2001] NSWCCA 464) and they were retried before Greg James J in early 2003. In December 2003, they were convicted (see R v Harrison & Georgiou [2003] NSWSC 1240). An appeal against that conviction was dismissed in 2005 (Georgiou & Harrison v R [2005] NSWCCA 189). The Crown case, as accepted by the jury, was that the offenders were members of the “Rebels” bikie gang and the deceased were members of the “Bandidos” bikie gang.

2. [9]

   At the time of the shooting, Mr Tarantino was working as a bouncer and glass collector at the Black Market Café. He provided some limited information to police on 13 November 1997 but did not inculpate any offender. [7]

3. [10]

   On 27 July 1998, the deceased, Ms Quanne Diec, disappeared sometime after leaving her home in Seventh Street at Granville and before arriving at her school. At the time of her disappearance Ms Diec was 12 years old. Her parents owned and operated a convenience store. The Crown case is that, on that morning, Mr Tarantino kidnapped Ms Diec from Factory Street, Granville while driving a white van and then took her to his father’s home nearby and strangled her. Factory Street is located between Ms Diec’s home in Seventh Street and Clyde railway station. It is anticipated that the evidence at trial will show that Ms Diec usually walked from her home in Granville to Clyde railway station to board a train to travel to school.

4. [11]

   On 30 June 1999 at Granville train station, a police officer found Mr Tarantino with a gunshot wound to the leg. [8] The police officer recorded him stating that “there was a contract on his life and he wanted protection”. The officer described him as “jittery and jumpy” and said that he “thought he might be drug affected”. [9]

5. [12]

   On 3 July 1999, Mr Tarantino participated in an interview with police concerning the Black Market Café shooting. In effect, he stated that he witnessed the events immediately preceding and after the shootout in the basement. [10] He implicated the offenders in the shooting [11] as well as a staff member at the Café, Justin Culshaw. On 5 July 1999 and 13 July 1999, Mr Tarantino gave evidence on a “Basha inquiry” before Dowd J. [12] On 12 July 1999, Mr Tarantino was provided with an indemnity against prosecution for concealing a serious offence in relation to the shooting.

6. [13]

   On 14 July 1999, XXXXX XX XXX XX XXX XXXX XX XXXXXXX XXXX XXX XXXXXXX XXXXXXX XXXX XX XXXXXXXXXX XXX XXXXXX XXXXXXX XXXXXXX XX XXXXXXXX XXXXXXXXX XXXXXXX XX XXXXXXXX XXX XXXXXX XXX XXXX XX XXXXXXXXX XX XXXX XXXXXXX. [13] On the same day, Dowd J excluded some aspects of his evidence, [14] although the Crown Prosecutor referred to the possibility of calling him. [15] On 20 July 1999, a doctor gave evidence before Dowd J to the effect that on 15 July 1999 he treated Mr Tarantino for a suicide attempt and expressed opinions about his fitness to give evidence. [16]

7. [14]

   In the meantime, on 14 July 1999 an associate of Mr Tarantino’s, Geoffrey Maurer, spoke to police. Mr Maurer alleged that Mr Tarantino had confessed to the abduction and murder of Ms Diec. During the course of Mr Maurer’s interview, it became clear that he was aware that Mr Tarantino was co‑operating with the police in relation to the Black Market Café shootings. The material is capable of supporting the suggestion that Mr Maurer’s motivation in coming forward to implicate Mr Tarantino in Ms Diec’s disappearance was because of Mr Tarantino’s actions in co-operating with the police.

8. [15]

   On 22 July 1999, Detective Powell spoke to Mr Tarantino about Mr Maurer’s accusations, as well as similar allegations made by Mr Tarantino’s former girlfriend, Leila Faily. [17] Mr Tarantino denied having any involvement in Ms Diec’s disappearance. (The Crown indicated that it sought to rely on a statement made by Mr Tarantino during that interview about his use of a van in July 1998 as a lie demonstrating a consciousness of guilt, but the evidence was rejected: R v Tarantino (No 5) [2019] NSWSC 1056). Although it is not clear, it may be that there is some dispute about what information Detective Powell conveyed to Mr Tarantino about Ms Diec’s disappearance at that time. Otherwise, the fact and timing of this interview was capable of raising a connection in Mr Tarantino’s mind between Ms Diec’s disappearance and his co‑operation with the police and prosecuting authorities with respect to the Black Market Café shootings. A note of the interview prepared by Detective Powell records that Mr Tarantino “believes these allegations raised by both Faily and Maurer are from instructions from the Rebel motorcycle gang, because of his involvement as a witness in the Black Market Café triple murders”. [18]

9. [16]

   On 1 September 1999, XX XXXXXXXX XXXXXX XXXXXXX XXXXXXXXXX. XX XXX X XXXXXXXXX XX XXX XXXXX XXXX XX XXXX XXXXXXXX XXX XXX XXXXX. On the same day, Justin Culshaw was arrested and charged with involvement in the Black Market Café killings. On 14 September 1999, Mr Tarantino signed a police statement implicating the offenders and Mr Culshaw in the shooting. [19] He provided another statement on 11 October 1999. However, he did not attend to give evidence at Mr Culshaw’s committal hearing in August 2000 and Mr Culshaw was discharged. XX X XXXXXXXX XXXX, XXXXXXX XXXXXX XX XXX XXXXXXXXXXX XX XX XXXXXXXXXXX XXXXXXXXX XXX XXXXX. [20]

10. [17]

    Mr Tarantino’s recollection of these events, and the events subsequent to this until November 2016, is set out below. It suffices at this point to state that Mr Tarantino was clearly mentally ill from at least around 2000 (and probably earlier) until that time.

Surveillance Evidence

1. [18]

   It is not clear what happened with the investigation into Ms Diec’s disappearance after 1999 but it appears to have been reinvigorated from 2013 to 2014. Mr Tarantino was identified as a suspect. At some point the investigating police obtained a warrant authorising surveillance of his mobile phone. On this application, Ms Rigg tendered recordings of 97 intercepted mobile telephone calls involving Mr Tarantino which occurred between 23 September 2016 and his attendance at Surry Hills Police Station on 20 November 2016, as well as the text of 49 SMS messages sent or received by him in the same period. [21] Generally, the telephone calls are between Mr Tarantino on the one hand and either his partner, Ms Michelle Kovacs, or his brothers, Allan and Sam Gerada, on the other.

2. [19]

   At the commencement of the period of surveillance, Mr Tarantino was living with Ms Kovacs at a premises in Canada Bay. [22] The transcripts reveal that by around 12 October 2016 Mr Tarantino was becoming anxious and paranoid. On that day, Mr Tarantino reported that he was surveilling his neighbours to ascertain whether they represented a threat. [23] The next day, he told his brother Sam that “this time I’m in serious trouble”. [24]

3. [20]

   On 14 October 2016, Mr Tarantino received a call from his brother Allan. [25] He told his brother he had left his house and was at the Botanical Gardens. He asked his brother for help in removing jewellery from his home [26] and asked him to “bring it discreetly”. [27] Mr Tarantino told his brother that “a couple of days ago I started hearing shit again” and that he “doesn’t feel safe” at his home but Ms Kovacs “doesn’t believe it”. [28] He said that he overheard someone say to his neighbours “[o]h, if you’re not here you’re in the clear”, which he apparently interpreted as a statement that they would not be harmed if they were not home when Mr Tarantino was. [29] He also told his brother that he overheard “them” state “[l]ast time he had a speargun … he’s only got a knife and a machete. Send the big Samoans in first” and “one of them” state that “[o]h, I haven’t fired a shottie for a while. I’ll have to remember to cover my ears”. [30] He also claimed to have overheard “them” tell the neighbours “[i]f, if the police come you haven’t heard, heard a thing, all right?” [31]

4. [21]

   Two days later Mr Tarantino telephoned his brother Allan again. Mr Tarantino did not display delusional or paranoid traits in that conversation. [32] By 17 October 2016, Mr Tarantino had left Sydney and was staying at a motel, apparently in Newcastle. [33] During his stay he was constantly phoning Ms Kovacs. He warned her to “be careful what you say from home” and “don’t make it sound like I’m away you know”. [34] The next day he told Ms Kovacs that “they’ve put things in motion” and that it “could be weeks or months” before he returned. [35] Over the following days he spoke to her repeatedly about a surveillance camera system that was installed at their home. [36] (A text message sent by Mr Tarantino on 18 November 2016 suggests that Mr Tarantino had remote access to that system). [37]

5. [22]

   By around 21 October 2016, Mr Tarantino appears to have returned to Sydney. Ms Kovacs and Mr Tarantino’s brothers were becoming exasperated with his expression of fears for his and their safety. Mr Tarantino abused his brother Sam on the phone for not believing him. [38] The same day Ms Kovacs sent him a text stating, inter alia, “you have an illness” and “I can’t deal with this anymore”. [39] He telephoned her denying that he was mentally ill. [40] At one point Ms Kovacs stated: [41]

6. [23]

   Sometime around 25 October 2016, Mr Tarantino returned to the hotel in Newcastle, [42] this time with Ms Kovacs. In the meantime, he was recorded making inquiries about obtaining a handgun, [43] although in his evidence he stated that the conversation was a “bluff” designed to fool anyone who was listening that he had access to a firearm. [44] I accept that evidence.

7. [24]

   On 26 October 2010, Mr Tarantino’s former partner, Ms Vicki Ross, telephoned him twice. In the second call, Ms Ross told Mr Tarantino that their cat (“Kelsey”) had passed away from a heart attack. [45] She described the cat as having fallen on the ground and screeched. [46] Mr Tarantino tells her that the “Rebels have found me again”. [47] A number of further calls about the passing of the cat ensue. On 27 October 2016, Mr Tarantino made various attempts to speak to the treating veterinarian. [48] He told a receptionist that he had “concerns” about Kelsey’s passing and that he “had a problem with an outlaw motorcycle gang and I know they got into her [Ms Ross’] place before”. [49] He told the receptionist that he thought Kelsey had “been poisoned or something”. [50] He made a number of calls to veterinary hospitals raising the same concern. [51] He told his brothers, Allan and Sam, of his concerns about the cat being poisoned. [52] In particular, he told Allan that a bikie gang had placed someone “living above [Ms Ross] in the flat right above” and “waited”. [53] The evidence outlined below indicates that Mr Tarantino ceased living with Ms Ross in 2013.

8. [25]

   By around late October 2016 or early November 2016, Mr Tarantino had returned to Sydney. On 2 November 2016, he telephoned Ms Kovacs and told her that he had new accommodation (in Five Dock) but added “I just hope I’m not walking into a trap”. [54] On 7 November 2016, he told Ms Kovacs “they” accessed Ms Ross’ apartment to kill his cat and that “I thought that might happen, you know, to break my spirit a little bit”. [55]

9. [26]

   From this time to around 18 November 2016, Mr Tarantino’s condition moderated significantly. Recordings of calls on most days were tendered. Mr Tarantino sounded calm and the majority of the conversation did not concern his fears. Even so, on 10 November 2016 he warned Ms Kovacs to avoid “any vans parked” near her car. [56] On 15 November 2016, he told his brother Sam that he (Mr Tarantino) would use a particular phone number [57] and on 17 November 2016 he appears to rehearse the use of the pseudonym “Jules” with Ms Kovacs. [58]

10. [27]

    On the evening of 18 November 2016, Mr Tarantino sent Ms Kovacs a number of text messages about turning on the camera surveillance system inside her home in Canada Bay. [59] Later he sent a message stating that he had not taken valium in three days. [60]

11. [28]

    On the morning of 19 November 2016, Mr Tarantino spoke to Ms Kovacs about the surveillance cameras not working. [61] His tone was generally calm. However, at around 12.30pm he telephoned his brother Allan. [62] He had apparently been to Ms Kovacs’ home and inspected the camera system. He told his brother that “something’s not fuckin right”. [63] His brother told him “no-one’s … been inside”. [64] At some point he returned to Ms Kovacs’ house and left again. He rang her at 5.37pm and told her that as he left “a Harley with a big dude … just hung around the back entrance” [65] and that he was on a “bus and I heard a guy say ‘he’s a dog’”. [66] An hour later he rang Ms Kovacs and referred to his fear that the premises he had moved into in Five Dock “was just a fuckin set up” in that “they knew I was going out there”. [67] He told Ms Kovacs that as he walked out of those premises “a car pulled over to the other side of the road with [an] ... enclosed trailer … and the guy … waved to me”. [68] Later that evening he sent a text saying that he “may have been followed from Michelle’s sometime”. [69] He caught a bus to the city and then arranged to stay at Ms Kovacs’ home. [70] Just before 9.00pm, he rang his brother Sam to complain how the arrangements for the premises in Five Dock were “just a trick” to harm him. [71]

12. [29]

    Throughout the morning of 20 November 2016, Mr Tarantino rang his brothers and father and repeated his statements about why he was in fear. [72] At one point he told his brother Sam that he had overheard people “talking about getting Michelle and gang raping her” and told him that “you guys [ie, his brothers] have to be careful as well”. [73] CCTV footage was tendered of Mr Tarantino attending a youth hostel at 11.47am and another hostel at 12.56pm. During this period Mr Tarantino telephoned Ms Kovacs and told her that he “went to one hostel and [he] didn’t feel safe there”. [74] At 12.10pm he sent a text to a friend of Ms Kovacs. His text stated, inter alia, that Ms Kovacs: [75]

13. [30]

    At around 1.43pm, Mr Tarantino rang City of Sydney Police Station. [76] He repeated the substance of the above text to a (slightly perplexed) police officer, Constable Mungovan. He described some of the perceived threats, including the supposed threat of “gang raping” Ms Kovacs. [77] He said that he was “worried” about his partner and the “threats they’ve made to my brothers and my father”. [78] Constable Mungovan stated that Ms Kovacs would need to attend at the station and that Mr Tarantino can’t “report on [her] behalf”. [79] Constable Mungovan added that “if she doesn’t have fears for herself then there’s not much we can really sort of do about it”. [80] Shortly afterwards, Mr Tarantino had a lengthy conversation with a friend repeating his fears and that Ms Kovacs “thinks I’m being paranoid”. [81] At 2.31pm he rang Ms Kovacs and urged her to “go to the police”. [82] She responded “and say what? I haven’t seen anything”.

14. [31]

    At around 2.55pm on 20 November 2016, Mr Tarantino phoned the Sydney City Police Station and spoke again to Constable Mungovan. [83] The recording of this call is evidence of admissions. It is objected to under ss 84 and 90 of the Evidence Act.

15. [32]

    Mr Tarantino reminded Constable Mungovan that he had spoken to him earlier about the “safety of my partner”. The conversation continued: [84]

16. [33]

    Over the balance of the conversation, Constable Mungovan directed Mr Tarantino to the Surry Hills Police Station.

17. [34]

    Two matters should be noted about this conversation. First, considered in the context of the balance of the calls, the “murder” he wished to confess to was a reference to Ms Diec’s murder. Second, I am satisfied that the reference to not “let[ting] this go on any longer” was not a reference to any accumulation of guilt but to a build of his fears for his own safety and that of his family and Ms Kovacs.

18. [35]

    At 3.17pm on 20 November 2016, Mr Tarantino rang his brother Sam. [85] The recording of this call is evidence of admissions. It is objected to under ss 84 and 90 of the Evidence Act.

19. [36]

    Mr Tarantino commenced the call by stating that he was “sorry” and “going to the Sydney Police”. He then stated: [86]

20. [37]

    His brother responded by stating that he didn’t “know… if it’s a good idea”. Mr Tarantino stated “I got no choice”. He said that “this morning they said the police were about to arrest me anyway, so they better hurry up and get me, you know” and “I’ve known for a long time they put a hundred and fifty grand on your head.” He referred to the perceived threats against Ms Kovacs and then stated: [87]

21. [38]

    Later, Mr Tarantino told his brother “[m]ake sure they arrest me”. [88]

22. [39]

    Four matters should be noted about this call. First, Mr Tarantino’s oral evidence on the voir dire suggests that the reference to “North Sydney” is to the time when he lived in North Sydney with Ms Ross from around 2010 and suspected that the North Sydney police were acting in concert with the Rebels (see [100]-[106]). Second, when this call is taken together with the next call to his brother Allan, it is clear that the reference to “something I’ve done” is to killing a child. Third, this call suggests that the reason why Mr Tarantino was proposing to make a confession to the police was to protect himself and “save your lives” (ie, his family’s lives). Fourth, in the telephone call Mr Tarantino does more than tell his brother that he proposes to confess to the police that he killed a child. In fact, he tells his brother that he killed the child (“this horrible thing I done”). There is nothing in this call or the balance of the evidence to suggest that his motivation in confessing to his brother at this point was to protect himself or anyone else.

23. [40]

    Three minutes later, Mr Tarantino made a similar call to his younger brother Allan. [89] The recording of this call is evidence of admissions. It is objected to under ss 84 and 90 of the Evidence Act.

24. [41]

    Mr Tarantino commenced the conversation by telling his brother that he was “sorry”. The conversation continued: [90]

25. [42]

    Mr Tarantino then outlined the threats he perceived. He told his brother that the “family have put a big bounty on my head” as they “want the body” and had “paid the rebels”. He told his brother that he was “questioned about it XXXX X XXX XX XXXXXXX XXXXXXXXX”. [92] The conversation ends with Mr Tarantino arriving at the police station.

26. [43]

    The final three matters noted at [39] apply with equal force to this conversation.

27. [44]

    The Crown tendered recordings of 42 calls between Mr Tarantino and other persons during the period 22 September 2016 and 19 November 2016, as well as the text of 7 SMS messages. [93] These calls reveal Mr Tarantino communicating with his partner, brothers and (mostly) third party service providers in a rational functional manner. Thus, for example, on 24 October 2016 Mr Tarantino discusses the return of a library book to Meadowbank Tafe. [94] Later, on 17 and 18 November 2016, he arranges to undertake casual building work commencing on 21 November 2016. [95]

28. [45]

    Five matters are evident from reviewing this material.

29. [46]

    First, the recordings confirm that throughout the period October 2016 to November 2016 Mr Tarantino possessed a genuine fear that he was at risk of reprisals from the Rebels for reasons connected to his co‑operation with the police in relation to the Black Market Café shootings. At times, the fear extended to potential harm to his partner and members of his family. The intensity of his fears varied. It appeared to moderate in mid‑November 2018 but became intense in the period 19 to 20 November 2018 as he attributed a technical difficulty with the surveillance cameras to imminent reprisals. Thereafter his anxiety escalated as he perceived threats to himself, his family and Ms Kovacs.

30. [47]

    Second, the recordings support the contention that Mr Tarantino’s fears had no rational basis. The basis he identified for the fears in the conversations were various interactions with members of the public which may or may or have occurred but, even if they did, what he observed and heard could not reasonably be construed as a threat. This is exemplified by his response to the news that his cat had passed away. Ms Ross advised him that it had died from a heart attack. Mr Tarantino concluded that it was killed by a person despatched by the Rebels who had maintained a presence in the roof of her apartment for years just waiting for the opportunity to poison it.

31. [48]

    Third, the recordings reveal an absence of any discussion of guilt or other feelings concerning any involvement in the death or disappearance of Ms Diec. Instead, the discussions that led to his attending at the police station all concerned his (delusional) fears about reprisals for his having witnessed the Black Market Café shooting and having assisted the prosecution of the offenders.

32. [49]

    Fourth, Mr Tarantino did not just explain to his brothers that he was attending at the police to confess to killing a child and doing so out of fear, he separately admitted to them that he had killed a child. There is nothing in the evidence to suggest that his confession to them was affected by any fear of harm to himself or others from the Rebels.

33. [50]

    Fifth, leaving aside his persecutory delusions, Mr Tarantino was functional in this period in that he was able arrange his affairs and deal with members of the public and the like.

Attendance at the Police Station – 20 November 2016

1. [51]

   Mr Tarantino attended at Surry Hills Police Station at around 3.40pm on 20 November 2016. On duty at the front counter was Constable Barnes. Constable Barnes signed a statement on that day which is evidence of admissions made by Mr Tarantino. It is objected to under ss 84 and 90 of the Evidence Act.

2. [52]

   In his statement, Constable Barnes records Mr Tarantino approaching the counter and stating “I need to speak to someone, I need to hand myself in a for a homicide. It’s all been building up for me and it’s too much”. [96] Constable Barnes then administered a warning and proceeded to search Mr Tarantino. Mr Tarantino revealed that he had a knife in his bag which Constable Barnes located. Constable Barnes told Mr Tarantino he was under “arrest for the knife”. Mr Tarantino said he had the knife for protection. Constable Barnes answered a phone call from Mr Tarantino’s brother, Sam, who told the officer “I am really worried about him … he has psychological issues”. [97] XX XXX XXXXX XX XXXXXXXXX XXXXX XXX XXX XXXXXXXXX XXXXXXXXX XXXX XXXX?”. [98] Constable Barnes asked Mr Tarantino whether the homicide related to a “serious assault back in 2006”. Mr Tarantino said no and explained that the charge related to “when I worked in Kings Cross, back in the Golden Mile days”. He added that the “police questioned me about the homicide, but I wasn’t charged”. [99]

3. [53]

   At around 4.20pm Plain Clothes Senior Constable Brooks and Detective Senior Constable Wang approached Mr Tarantino, who was by then sitting in the dock at the police station. On the voir dire, statements from each of Senior Constable Brooks and Detective Senior Constable Wang were tendered. Each of them constitutes evidence of an admission made by Mr Tarantino. They are objected to under ss 84, 85 and 90 of the Evidence Act although the Crown disputes that they fall within the scope of s 85(1). (As noted, the statements are also objected to under s 281 of the Criminal Procedure Act 1987 but that is not being addressed at this point.)

4. [54]

   The statements of Senior Constable Brooks and Detective Senior Constable Wang were signed some days apart and they have their differences. No point was taken that the differences between them warranted their rejection.

5. [55]

   In her statement, Senior Constable Brooks stated that he asked Mr Tarantino about the murder he “wanted to talk to us about”. [100] Mr Tarantino stated that he wanted the discussion recorded, that he “already told his family” and he was “expecting to go in”. Senior Constable Brooks stated “that’s ok” but at that time he did not know anything about what Mr Tarantino wanted to talk about.

6. [56]

   Mr Tarantino then stated “it happened about 16 years ago. I’m sure you know. I’m sure you think I’m a piece of shit”. [101] Senior Constable Brooks recorded observing Mr Tarantino to be “shaking and sweating profusely … rubbing his forehead and eyes while staring at the table”. Senior Constable Brooks took notes. The conversation continued: [102]

7. [57]

   Senior Constable Brooks then asked various questions about the killing. Mr Tarantino said that it happened “about 16 years ago”, told him the name of the deceased (“Quanne Diec”), that she was Vietnamese, [103] that she was “about 10-12 years old”, [104] and was in “school uniform”. [105] Mr Tarantino then stated “[i]t was because of a triple murder that happened ages ago …[t]hey were following my brother …[t]hey followed him to my parents’ house … [and] said they were going to kill my dad … XXXXX X XXX XXX XX XXXXXX …”. [106]

8. [58]

   Senior Constable Brooks asked Mr Tarantino to “[j]ust come back to Quanne”. Mr Tarantino said that he “strangled her”, that “I took her for a ransom”, when he was driving and that he saw her walking through Granville. [107] He said he took her to his “dad’s house” at Granville [108] but denied taking her to a bedroom or sexually assaulting her. [109]

9. [59]

   In the last part of the interview, Mr Tarantino was asked “[h]ow did all this lead up to you killing her?” He replied as follows: [110]

10. [60]

    In his statement Detective Senior Constable Wang did not record Mr Tarantino requesting at the outset that he wanted the conversation to be recorded. He stated that Senior Constable Brooks asked Mr Tarantino if he wanted a “private conversation” and that they went to an interview room. Senior Constable Brooks asked him “Vincent, what do you want to tell us?” and he replied (“with words similar to”):

11. [61]

    Detective Senior Constable Wang recorded that Mr Tarantino became upset and he left the room to make coffee. On his return, Mr Tarantino referred to Ms Diec as having a Vietnamese name, as well as saying that he “strangled” her, that he “found her at Granville ... [as] she was walking down the street” and that he killed her at his father’s house. [111] Detective Senior Constable Wang recalled Senior Constable Brooks asking which room the killing occurred in, with Mr Tarantino responding “yeah sure in the bedroom ... [c]ome on, I’m not a sex beast”. [112] Detective Senior Constable Wang stated that at this point Mr Tarantino said that he “want[ed] to be electronically interviewed and charged”. He also stated that he told his brother “what I have done” when he was in Western Australia and that he also “went to North Sydney Police to tell them” but they did not believe him. [113]

12. [62]

    Detective Senior Constable Wang stated that at around 6.12pm Mr Tarantino was escorted back to the dock area. He undertook an internet search on the name “Diec” which revealed that she went missing in 1998. He then contacted Detective Mackay as the officer in charge of the investigation into her disappearance. He returned to see Mr Tarantino and advised him that he was under arrest for the murder of Ms Diec. He administered a warning that he did not have to say anything to which Mr Tarantino responded “[o]f course I understand that. I have been through this before”. By this time they had been joined by the Custody Manager, Detective Sergeant Plumridge. Detective Senior Constable Wang recorded Mr Tarantino as having stated “I am a grub … I don’t deserve a fair trial”. [114] He said that he made notes of this conversation in his notebook after speaking to Mr Tarantino.

13. [63]

    Detective Sergeant McKay and Detective Hayman arrived at the Sydney Police Station sometime around 7.30pm. At around 8.02pm, they approached Mr Tarantino in a holding cell and introduced themselves. [115] Mr Tarantino said “OK we need to talk”. The conversation continued:

14. [64]

    The ERISP recording of the conversation that followed is evidence of admissions. It is objected to under ss 84, 85 and 90 of the Evidence Act.

15. [65]

    The ERISP commenced at 8.05pm and concluded at 10.26pm. [116] The video recording of the ERISP was played on the voir dire. It commenced with the usual warnings being administered to Mr Tarantino. When he was advised that he did not “have to say or do anything if you don’t want to” and asked whether he understood he replied “I understand of course”. [117] Mr Tarantino also denied that anyone had threatened him to talk to the interviewing officers or promise him an inducement, however he immediately mentioned that his “partner’s being threatened with gang raping, and my father and brothers have been threatened to be, get killed in a contract killing”. [118] The interviewing detectives then sought confirmation of what he stated to Constable Barnes [119] and some parts of what was stated to Senior Constable Brooks before the recording was suspended. [120] On recording resuming, Detective Sergeant Mackay commented that in the “past few minutes Vinzent’s just been telling us about some of the issues in his life and the concern he has for his loved ones and family”. [121] At around 8.25pm Mr Tarantino was asked “what can you tell me about the homicide?”. [122]

16. [66]

    Thereafter, in answer to a series of generally “open” questions, Mr Tarantino recounted abducting and strangling Ms Diec in terms that were similar to what he stated to Senior Constable Brooks, although he provided some extra details. Thus he described the abduction as a “stupid ransom attempt [that] went wrong” [123] and that “family members came over [to his father’s house] and I just…panicked”. [124] At one point he was asked whether he could remember the street he collected Ms Diec. He stated “Um Clyde Street, I think. I don’t remember. Factory Road, maybe”. [125] He could not remember where on Factory Street. [126] He said that he could not remember the car that was used to carry out the abduction but said it was borrowed from a friend to move house. [127] He said that he thought “it was a van”. [128] Later he said he borrowed a van from a friend (“It was a friend of a friend, a relative of a friend, I think. I just can’t remember; it was that long ago”). When asked whether he could recall his friend’s name he said “Jeff” [129] but could not recall his last name, only that he was known as “Jeff the jeweller”. [130] He said that he did not remember anything about the van other than the fact that it was white, [131] that “Jeff” did not own the van and that Jeff’s relative had borrowed it. [132] He said he told Jeff what he had done [133] as well as a “working girl” that he was “seeing”. [134] He said he only knew Ms Diec’s name from the media [135] and he thought she was seventeen years old. [136] Mr Tarantino said he asked Ms Diec what her father did and she said that her father “had a café or something or used to be an editor of a newspaper or something”. [137]

17. [67]

    In relation to Ms Diec’s body, he said he “took her and buried her”. In respect of the burial location, he said he did not “remember exactly to be honest ... I just remember the way I drove” [138] but added “south … somewhere off the Princes Highway”. [139] He said he drove by himself and thought “it was like afternoon”. [140] He could not remember her clothing or whether she had a school bag. [141] He said that Ms Diec was wrapped in a sheet or rug in the back of the van. [142] He said he “dug a hole and threw her on the ground” with clothes on. [143]

18. [68]

    At the conclusion of the ERISP, a police sergeant asked Mr Tarantino various questions about the interview process, including whether any threat, promise or inducement had been held out to him to participate. Mr Tarantino replied “no”. [144]

19. [69]

    At around 1.00am on 22 November 2016, Mr Tarantino participated in a forensic procedure which was recorded. [145] No admissions were made during that procedure. Mr Tarantino was co‑operative and responsive.

20. [70]

    A psychiatrist retained by the Crown, Dr Martin, described Mr Tarantino in the ERISP as “superficially calm and lucid” and “alert, orientated and aware of himself and his surroundings”. Dr Martin concluded that he was “not grossly thought disordered and is able to give a relatively coherent account of himself”, although he added that Mr Tarantino “looks extremely preoccupied with an intense expression and he displays a restricted affect”. Dr Martin added that during the interview Mr Tarantino did not “appear overtly preoccupied by beliefs around the Rebels or being under threat”, although they were mentioned. Dr Martin noted that towards the end of the interview Mr Tarantino became “hyper-aroused and appears very paranoid.” [146]

21. [71]

    My observations of the ERISP are consistent with Dr Martin’s, although I did not observe a significantly increased level of paranoia towards the end. Mr Tarantino appears stressed and breathes heavily during the ERISP, but he was at all times concentrating and focussed. While at one point Detective Sergeant Mackay observed that Mr Tarantino appeared “emotional”, he nevertheless understood the questions being asked of him. While he brought his fears for his own safety and the safety of others to the officers’ attention, his answers were completely responsive to the questions he was asked. He provided a reasonable level of detail of the crime to which he was confessing. That level of detail appears consistent with someone recalling a shocking crime they are said to have perpetrated 18 years previously.

Walkthrough – Wednesday 23 November 2016

1. [72]

   On Tuesday 22 November 2016, Detective Mackay contacted Mr Tarantino who was in custody at Surry Hills Police Station. He advised him that his family was safe and asked him to assist in locating Ms Diec’s remains. Mr Tarantino agreed. [147]

2. [73]

   On the following morning Detectives Hayman and Scott and Detective Sergeant Mackay attended the remand centre and collected Mr Tarantino. Detective Mackay’s statement records that Mr Tarantino again agreed to assist “although he was concerned for the safety of his family”. Detective Mackay then spoke to Ms Kovacs and Allan Gerada, both of whom then spoke with Mr Tarantino. At around 9.52am, they departed in a car fitted with electronic recording cameras”. [148] The trip was recorded from that time until their return just before 5.00pm, [149] although it was suspended for lunch at 1.47pm [150] and resumed again at 3.20pm. [151] The recording of the trip was played in Court on the voir dire. The recording of the trip is evidence of admissions. It is objected to under ss 84, 85 and 90 of the Evidence Act.

3. [74]

   On this trip they visited two locations, Appin Road at Bulli Tops [152] and Woronora Dam Road off the Princes Highway. [153] At the outset of the journey, a warning is administered to Mr Tarantino and he acknowledges that he is not obliged to “say or do anything”. [154] Early in the trip, Mr Tarantino told Detective Sergeant Mackay that he first dropped Ms Diec’s body somewhere along Woronora Dam Road but then returned with “Leila” and moved the body. [155] He then appeared to direct the driver to a location on Appin Road where Ms Diec’s body was left by recalling the route as they were driving. [156] At one point he recalls that both he and Leila had mobile phones when they were returned and suggests “tracking”. [157] After an hour or so, Mr Tarantino requested that they stop the vehicle and get out. He refers to moving Ms Diec’s body with a “wheelie bin”. [158] After they alight, the recording shows Mr Tarantino leading officers through dense bush and appearing to remember details of the night he moved Ms Diec’s body to the location. [159] (“It was night time”; [160] “But there was tree. It was a different type of tree”; [161] “soft sandy” dirt. [162] “I remember them ferns. And a bit of a decline …just a decline down and there was a … That’s the distance…It’s just hard, cause the vegetation… ….It’d be no further than, I’d say, that brush… those stringy bark type ...”). [163] After further searching, they drive further along Appin Road. However, Mr Tarantino rejects the location as too rocky and “too close” to the road. [164] The search continues for a considerable period. At around 4.25pm, Mr Tarantino was administered with a warning and he acknowledges that he is not obliged to answer. [165] They then drive to Woronora Dam Road and locate a spot near the road where Mr Tarantino stated he first dumped Ms Diec’s body. [166] He said it was “pretty easy” to locate her when he returned to move the body. [167]

4. [75]

   Throughout this trip Mr Tarantino appears calm. His answers were responsive and he clearly understood everything that was being put to him. He appears to be very focused on recalling where he had left Ms Diec’s body.

5. [76]

   On the afternoon of 28 November 2016, a second ERISP was conducted with Mr Tarantino in the interview room at the Metropolitan Remand and Reception Centre at Silverwater. It commenced at 1.15pm [169] and concluded at 3.17pm. [170] The ERISP recording of the conversation that followed is evidence of admissions. It is objected to under ss 84, 85 and 90 of the Evidence Act.

6. [77]

   At the commencement of the interview, Mr Tarantino was again administered the usual warning. He acknowledged, inter alia, that he did not have to say or do anything if he did not want to. [171] When he was asked whether he was threatened, he referred to threats from other inmates but accepted that he had not been threatened by the interviewing officers. The balance of the interview involved the officers seeking further details from Mr Tarantino, especially regarding the disposal of Ms Diec’s body. Again, he provided a reasonable but not extensive amount of detail, although his description of his immediate response to killing Ms Diec set out below was detailed.

7. [78]

   During the interview Mr Tarantino said that when he returned to move Ms Diec’s body he put a sheet underneath her, “wrapped her up and then put her in the van”. [172] He said she still had clothes on and he placed her in a ‘wheelie’ bin “because there was body fluids coming out of her”. [173] He said Ms Faily drove, [174] they found another spot, and he dragged the bin into bush, dug a hole and placed her body in the hole. He said that “[o]nce I finished burying her I rang Leila up”. [175] He recalled he might have hit a machete on a tree to make a mark. [176] He was asked about his familiarity with the roads and said he had previously been to Woronora Dam Road as an adult [177] but did not know Appin Road. [178] He said he was not confident that Ms Diec was buried on Appin Road. [179]

8. [79]

   The questions also concerned the abduction and killing of Ms Diec. Mr Tarantino said he told her to “Get in the car” twice. [180] Later he explained that he waited in the room with Ms Diec while his “relatives” came into the house and then “like I said earlier, I panicked and strangled her”. [181] He was asked: [182]

9. [80]

   Thus, in response to an open question Mr Tarantino was able to provide a detailed narrative of his actions and thoughts. Throughout the interview Mr Tarantino appeared tired. He often yawned [183] and complained about a lack of sleep. [184] Leaving that aside, he was engaged and responsive.

Mr Tarantino’s Evidence

1. [81]

   Mr Tarantino gave evidence on the voir dire over a day and a half concerning the threats made to him over an 18‑year period up to the time that he participated in the interviews with police in November 2016. The following narrative is taken from his evidence and cross‑references other evidence that was tendered on the voir dire.

2. [82]

   Mr Tarantino stated that, at the time of the shootings at the Black Market Café, he was living with Ms Brooke Wilats, who was friendly with members of both the Bandidos and the Rebels and lived near the Bandidos’ clubhouse. [185] He said that within a few days [186] of the shooting, members of the Bandidos confronted him at her apartment on suspicion that he was involved. He said that he and they both drew firearms. [187] He said that following this he stayed away from Kings Cross but one night he returned and at a nightclub he was confronted by a Bandidos member he drew a firearm. [188] He was also told of shots being fired by a Bandidos member at Black Market Café staff who attended a nightclub on Pitt Street, Sydney. [189]

3. [83]

   As noted above, Mr Tarantino provided some (limited) information to police in the weeks after the shooting. He stated that Mr Culshaw departed Sydney after the shooting but returned months later. He said that they met at a nightclub and that other Rebels members attended. He was asked whether he had spoken to the police. [190] He said that from that time he became more “security conscious”, moving from residence to residence but “notice[d] later on that was, on occasions, being followed”. [191]

4. [84]

   In cross‑examination, Mr Tarantino stated that Ms Wilats told Mr Culshaw that he had spoken to the police. [192] He said he was threatened by Mr Culshaw “some months” after the shooting at the Black Market Café. [193] Mr Tarantino said that Mr Culshaw threatened him over the phone and “we almost had a shootout in a park as well”. [194]

5. [85]

   At one point Mr Tarantino moved in with his cousin, Godwin White. He said that Mr White was not a gang member but was friendly with members of the Rebels and that “Rebel club members liv[ed] across the road”. [195] He said that on one occasion when he walked out of Mr White’s house there was a “group of males parked across the road” and a “shot was fired across our … above our head”. [196] He said that, later, [197] a female associate of Mr White’s “who had club connections” told him he had “wiped out [his] whole family tree” which at the time confused him but which he later interpreted as a threat. [198] At some point, Mr White and his family moved out of the home, leaving Mr Tarantino residing there for a period of weeks. He said that during this period “I was being followed as well by a carload of people” and that he kept a shotgun by his side the “whole time”. [199]

6. [86]

   As noted, on 30 June 1999 Mr Tarantino was seen by a police officer at Granville station with a gunshot wound to the leg. He was also complaining that there was a “contract on his life”. [200] In his evidence, Mr Tarantino said that on that day he decided to leave Mr White’s premises because he “observed a few males being dropped off out the front of the house but… they were fearful to come into the house because I had a shotgun”. [201] Mr Tarantino said he arranged for Mr White to drive him to Blacktown train station and he caught a train travelling towards the city. [202] He said that at Wentworthville a “couple of Asian males” came and sat in his carriage. He heard them state that they had been to his brother’s home and then his father’s home. [203] He overheard one of them state “We’re going to use a 9 mill”, that “[i]ts not going to leave much of a hole” and “[a]ll you have to do is just cover the body with a sheet”. [204] Mr Tarantino said he left the train at the next station and telephoned his father and brother. [205] At one point he boarded a train, left the train just as the doors were about to close and then caught another train leaving from the opposite platform, “[b]ut then I knew I was being followed because some people got off and did the same thing”. [206]

7. [87]

   Mr Tarantino said that when he arrived at Granville train station he attempted to contact his father. He then saw some people stand next to him on the platform, make a telephone call and overheard them start “to talk about what may be at my father’s house, what they may be able to take as well”. [207] Next, while he was in a waiting room in the middle of the platform, two persons sat near him. Mr Tarantino said they “pulled out a balaclava” and he overhead one of them say “It’s time to put on the balaclava and the gloves”. [208] He approached the transit officer and asked him to call the police officer. Mr Tarantino said he approached the police officer and tried to explain his background involving the Rebels. [209] He said he showed the police officer a gunshot wound to his leg that was bandaged to bolster his claims, although in his evidence he stated that it was received almost three and half weeks previously and denied that it had anything to do with his witnessing of the Black Market Café shootings. [210] (In cross‑examination, Mr Tarantino said that the wound was the result of an accidental discharge when he and Mr White were arguing. [211] In his statement, Mr White said that he shot Mr Tarantino in the leg after he admitted involvement in “extortion and kidnapping stuff”, that after the shooting Mr Tarantino left his home on foot and “I didn’t see him for ages after that”.) [212]

8. [88]

   Mr Tarantino stated that on the evening of 30 June 1999 he stayed at his fathers’ home in Granville. He said that outside the house he heard intruders state words to the effect that “they thought it would be better to come back with the right tools to do the job at a later stage”. [213] He told his father who checked outside the home and apparently found nothing. [214]

9. [89]

   As noted above, on 3 July 1999 Mr Tarantino participated in a record of interview in relation the Black Market Café shootings. In his evidence he was taken through the chronology of his participation in the trial before Dowd J XXX XXX XXXXXXX XXXXXXXXXX XXXXXX XXXXX XXXXX. [215] XX XXXXXXXXX XXXXXX XXXX XXXXX XX XXXXX XXXXX XXXXXX XXXXXXXXXX. [216] In relation to his suicide attempt in July 1999 he stated that he “found it very hard to give evidence” and that he “had friends on both sides”. [217] He gave the same reason for not attending at Mr Culshaw’s committal hearing. [218] XX XXXX XXXX XXXXX XXX XXXXXXXXXXXXX XX XXX XX X XXXXXXXXX XXXX XXXX XXX XXXXX XX XXXXXXX XXXXXXXXXX XXXXX XX XXXXXXXXX. [219]

10. [90]

    XXXXX XX XXXXXXXX XXXXXXXXXX, Mr Tarantino had moved to Townsville. He said that while at a cafe in Townsville he started speaking with two men, one of whom he later recognised as having an association with the Rebels. [220] He recalled one of the men stating that “we’re going to have to let the boys know about him”. [221] Later that day they gave him a lift to near his home. [222] On a night around two weeks later, he heard a neighbour “yell out” that “the boys had been going back and forward through the bushes all night with SKSes”, [223] which Mr Tarantino understood to be a reference to assailants carrying semi-automatic weapons in the foliage behind their houses. He said that he picked up a shotgun and loaded it. [224] He said that while he was on guard a “male got up from the bush area not far from where I was with a firearm and said ‘I can shoot you right between the eyes if I want to’”. [225] He said that after this, someone “kicked or banged the house” and said “Come out you f’ing dog”. [226] At some point Mr Tarantino made a “000” call to the police and he handed over his firearm. [227] He said that the police searched the area. [228]

11. [91]

    Mr Tarantino stated that his father advised him to go to a hospital. [229] He agreed. Mr Tarantino explained that he regarded it as a “good option, it was like an improvised safe house”. [230] The medical records note that he was admitted to Townsville Hospital on 31 October 2000 and discharged on 6 November 2000. [231] He was diagnosed as having an “adjustment disorder with anxious mood” and “anti-social personality traits”. He was observed to be “very scared, hyper vigilant” and “unable to give [a] very coherent history”. [232]

12. [92]

    On his discharge from Townsville Hospital, Mr Tarantino caught a train to Brisbane but said he “couldn’t stay in Brisbane because I had to move around a fair bit” and that without a car “it would be pretty easy to follow me”. [233] He moved to Perth and resided with his cousin [234] and obtained work. [235] He recounted an occasion in Western Australia where there was an attempt to drag him into a four wheel drive. [236]

13. [93]

    The medical records indicate that in March 2001 Mr Tarantino was admitted to hospital. [237] Upon admission he was diagnosed with “amphetamine induced paranoid psychosis”, “adjustment disorder with anxious moods” and “anti‑social personality traits”. On 1 January 2002, he was arrested. He asked his cousin to collect him from the police station because he believed the President of the Rebels was waiting outside the station to kill him. [238]

14. [94]

    On 12 April 2003, Mr Tarantino was apprehended by police at a nightclub whilst in possession of a knife. He was reported as stating that “people [were] out to get him”. [239] On 20 April 2003, he rang triple-0 and asked police for protection from gang members who were following him. [240] The police took him to hospital [241] and he was released after 48 hours.

15. [95]

    On 29 April 2003, Mr Tarantino rang the NSW Police Missing Persons Unit. He told the constable receiving the call that he, Mr Tarantino, had advised the Western Australian police that he had information about Ms Diec’s disappearance such as to attract their attention but wanted to confirm he did not actually have any such knowledge. [242]

16. [96]

    On 14 June 2003, Mr Tarantino barricaded himself in a room at the Cottesloe Hotel in Western Australia while in possession of a knife and pepper spray. [243] Mr Tarantino said he had left his cousin’s home because his cousin said that he “could no longer help me”. [244] He said that a friend gave him a lift but he observed that they were followed. [245] After he checked into his room, he said he had the window open and heard the people in the adjacent room comment on the fact that Mr Tarantino’s friend had left. [246] Later he heard one of them state “F… this, I’ve come all this frigging way, why don’t we just go in and blow his head off”. [247] At some point Mr Tarantino rang emergency services. [248] The details of what occurred when they arrived are not available but he was later taken to hospital. The hospital notes record the diagnosis as “paranoia, drug induced schizophrenia” with the complications being “agitation, paranoid psychosis, wish of harm, insightless… had barricaded himself in hotel”. [249] On about 20 June 2003, he was transferred to a different hospital. He was made an involuntary patient on 23 June 2003. [250] He was discharged on 25 July 2003.

17. [97]

    The medical records indicate that Mr Tarantino was again admitted to hospital in Western Australia, sometimes involuntarily, in September 2003, April 2004, May 2004 and July 2004. [251] An entry in the summary of the hospital notes for 12 May 2004 states: [252]

18. [98]

    In his oral evidence Mr Tarantino agreed that he returned to Sydney in 2006 when his father was ill, [253] although medical records refer to an admission to Sutherland hospital in July 2005 following a suicide attempt by drug overdose. [254] On his return to Sydney, he commenced living with a woman in Stanmore and was working on a construction site. He stated that one of his associates had been recently released from gaol and ascertained his identity because he knew a doorman at the Black Market Café. [255] He said that one day he was taking “precautions” by entering home from a back lane and encountered the man with four associates (“five ... big build guys”) near his home. Mr Tarantino said that one of them stated “[t]he gunmen will be here soon”. [256]

19. [99]

    The medical and other records for this period reveal that in March 2006 Mr Tarantino was charged with assaulting his then partner [257] and he moved out of her home. [258] Mr Tarantino stated that they resumed the relationship after that but it appears to have ended around that time as Mr Tarantino said he “had a bit of a melt down”. [259] The medical records for the period 2006 to 2010 onwards contain similar entries to those relating to his period in Western Australia [260] although it included a period in custody.

20. [100]

    In 2010, Mr Tarantino commenced a relationship with Vicki Ross. Initially they lived in an apartment in Kirribilli before moving to an apartment in North Sydney near a police station in 2012. [261] Mr Tarantino said that he encountered a Rebels member at a bar in King Cross and after that he “start[ed] hearing threats made around the unit complex”. [262] On another occasion he said that he met Mr Culshaw, who was now a solicitor, for a drink and that on his return to the apartment in North Sydney with a friend, Richard Valoa, he recognised the Rebels member he had seen in Kings Cross. [263] He said he realised by this time that the apartment had been “well and truly compromised”. [264] At one point, whilst Mr Valoa was drunk and dozing off, Mr Tarantino could hear talk from a “recently vacated unit next to us” [265] about the use of gaffer tape and handcuffs. He also said that there was a reference to Mr Valoa leaving the door open for assailants to enter, to Mr Tarantino being harmed and to a plan to rape Ms Ross. [266] Mr Tarantino said he put a weight bench against the door [267] and called the police. Mr Tarantino said he decided to remove himself from the situation and agreed to be admitted to Royal North Shore Hospital as “an improvised safe house”. [268]

21. [101]

    A police record notes that the police attended at the unit on 13 May 2012 and observed Mr Tarantino to be “agitated, speaking loudly, pacing, incoherent” and repeating fears of Outlaw Motorcycle Gangs (OMCG). He was eventually sedated. [269] The medical records indicate that he was admitted to Royal North Shore Hospital and not discharged until 12 June 2012. [270] It appears that he was involuntarily detained under the Mental Health Act 2007 from the time of his admission. [271] He was recorded as having “persecutory delusions, auditory hallucinations, ideas of reference, significant sleep disturbance and increasing distress”. [272]

22. [102]

    Mr Tarantino stated that on the morning of 23 September 2013, as Ms Ross was preparing to go to work, he heard a voice state “once Vicki goes to work we can go in there and bash his head in but not to touch the cats so Vicki doesn’t know what’s going on”. [273] Mr Tarantino said he accompanied Ms Ross to work that day and then returned with her later that night. He said that when they returned he heard further threats of harm to both of them. [274] He recalled that the police were contacted and a siege developed in which he was on the balcony “so I could hear the people coming and going from the balcony above, what they were saying and doing”. [275]

23. [103]

    Police records state that on the morning of 24 September 2013 police were called to the North Sydney unit by Ms Ross who was concerned about Mr Tarantino as he had “not slept in 3 days and was agitated and paranoid”. When the police attended they found Mr Tarantino armed with a knife and threating to jump over the balcony. During a standoff with Mr Tarantino that took place over 14 hours, he reiterated his belief that “bikies [were] out to kill him or take him hostage”. [276] Mr Tarantino was admitted to a hospital as an involuntary patient and not discharged until 25 November 2013. The principal diagnosis was a “chronic psychotic disorder”. [277]

24. [104]

    Upon his release, Mr Tarantino resumed moving between different places of short‑term accommodation before he met Ms Kovacs and moved in with her in April 2014. [278] In his evidence, Mr Tarantino stated that his brother collected his possessions from the North Sydney unit and transported them to Ms Kovacs’ home in Canada Bay. [279] He said that two males watched his possessions being unloaded and he became concerned that his brother had been followed. [280]

25. [105]

    Mr Tarantino said that in August 2014 he started hearing threats coming from the roof cavity of Ms Kovacs’ apartment. He described how the roof could be accessed through a manhole cover in the common area. [281] He was not sure if the voices were from people in the roof or from a “talk and listen” electronic surveillance device installed in the roof. [282] He said that he decided they should both leave. They travelled to the home of Ms Kovacs’ sister who lived with her husband and two children. Mr Tarantino said that during the night he heard voices from outside the house state words to the effect that “the gang members were all waiting at the club house, they had all taken Viagra and ‘two girls are better than one’”. [283] The next morning, he telephoned his brother and told him where they were. He said that they heard “now we are going to have to kill him as well”. [284] They left soon after. (Ms Kovacs’ evidence concerning this incident is set out below.)

26. [106]

    Mr Tarantino was admitted to Concord Hospital on 23 August 2014. He was discharged on 21 October 2014. [285] At some point he was detained involuntarily. A note records a telephone conversation between a staff member and Ms Kovacs on 27 August 2014 in which she stated that Mr Tarantino “has been paranoid for the past few months but significantly over the previous few weeks”. [286] After his release the entries record him denying the effect of his diagnosis and refusing medication. [287] He resumed cohabiting with Ms Kovacs.

27. [107]

    Mr Tarantino said that approximately six weeks prior to his arrest in November 2016, he overhead a new neighbour state words to the effect of “how much money [they were getting] for the whole job in relation to … me”. [288] He said he was followed by a “car load of guys” and a firearm was thrown “out in front of me” from a car. [289] He said he was monitoring the camera equipment installed at Ms Kovacs’ home. [290] He recounted staying at a hotel in Newcastle with Ms Kovacs and being told by the Manager that “someone had come down to the reception… and said they wanted to know if Michelle had checked into the room yet”. [291] He said that while in Newcastle he heard that his cat which had been living with Ms Ross had died. Mr Tarantino concluded that the killing of the cat was effect being given to of a threat made in 2013. [292]

28. [108]

    Mr Tarantino said that when he and Ms Kovacs returned from Newcastle “I decided I was going to move out”, [293] although Ms Kovacs “was reluctant” to see him go. [294] Mr Tarantino stated that he thought that his computer had been accessed and that his on‑line search for accommodation was being interfered with such that he was being deceived into taking accommodation above a Vietnamese Bakery in Five Dock, [295] which he thought might “possibly” be connected to Ms Diec’s family. [296] It appears that he moved into those premises on or around 5 November 2016. [297]

29. [109]

    As indicated by the intercepts summarised above, Mr Tarantino stated that on the morning of 19 November 2016 he concluded that the security cameras at Ms Kovacs’ premises had been interfered with. [298] He said that when he returned to the premises at Five Dock, in the parking bay he saw someone “warming up a motorbike … just looking at me, revving the bike for a long period”. [299] He said that as he left he saw the Rebels member he had previously seen in Kings Cross. He heard someone say in his earshot “Eff him. He’s an effen dog”. [300] He then travelled to the city, collected Ms Kovacs and they returned late at night to her unit. [301] He said that overnight he heard threats while Ms Kovacs slept and further threats while she was in the shower. [302]

30. [110]

    The next morning, that is 20 November 2016, Ms Kovacs left for work. Mr Tarantino travelled into the city. He said that over breakfast, two males sat behind him. He heard them discuss accessing Ms Kovacs’ unit [303] as well as “paying money to rape Michelle”. [304] Mr Tarantino said he attempted to check into a youth hostel at Railway Square but recognised people there as having sat near him at breakfast and having been on the bus the previous day. [305] He then checked into a different youth hostel nearby. When he was in his room, he opened the window and overhead a threat to “break every bone with a baseball bat”. [306] He said that when he made the first call to Constable Mungovan on 20 November 2016 he was “trying to have the threats addressed for Michelle” but after the call he “believed there was nothing I could do in relation to the threats”. [307] He said that when he called again about a homicide “I had to find a way out to make it stop. I needed … to sleep”. [308]

31. [111]

    Mr Tarantino was then asked: [309]

32. [112]

    Mr Tarantino said that his state of mind in this respect did not change throughout the period of 20 to 28 November 2016 (“the threats were still there”). [310]

33. [113]

    Three matters should be noted about Mr Tarantino’s evidence.

34. [114]

    First, although he identified many people who followed or threatened him whom he believed were associated with the Rebels, in cross‑examination he agreed that the only person he knew to be a Rebel member that made threats was Justin Culshaw. [311]

35. [115]

    Second, the cross‑examination highlighted that almost all of the recounted instances where he overheard threats involved, for one reason or another, the person he was staying with being either absent or asleep at the time. With the threats he claimed to have heard in Townsville, his housemate was at work [312] and then later on he was sleeping. [313] He said that his cousin, Godwin White was inside the house in 1999 when shots were fired and “didn’t know about it”. [314] When Mr Tarantino heard the threats in the room at the Cottesloe Hotel in 2003 his friend had already become fearful and left. [315] No one else was present when he said there was an attempt to drag him into the four wheel drive in the early 2000s. [316] When he overheard threats while living in North Sydney, both of the other occupants were asleep. [317] When he heard noises from the roof cavity at Ms Kovacs’ premises, she was sleeping in another room. [318] When he heard threats from outside at Ms Kovacs’ sister’s place, both Ms Kovacs and her sister were asleep. [319] He was alone at the youth hostel when he overheard threats. [320] Consistent with this, save for the reference to the SMS message noted at [97], none of the documentary material relating to his attendances upon police and medical staff provide any support for his assertions of being threatened or overhearing threats. I attach no weight to the SMS message given the ability of a phone owner to pre-set something that might look like a threatening text.

36. [116]

    Third, despite the equivocal nature of much of what he claimed to observe, and the basis for his threats being conversations only he claimed to have heard, throughout his evidence Mr Tarantino displayed an absolute certitude that his recollections were accurate and his conclusions were correct. (“That did happen”; [321] “there was no room for error in my interpretation”; [322] “there was no chance I may have misconstrued what was said”; [323] “hundred per cent ... [t]otally heard that”. [324] )

Ms Kovacs’ Evidence

1. [117]

   A statement from Mr Tarantino’s partner, Ms Kovacs, dated 21 November 2016 was tendered on the voir dire. [325] Ms Kovacs also gave oral evidence and, as noted, a number of her telephone calls with him during September to November 2016 were intercepted and tendered.

2. [118]

   In her statement, Ms Kovacs stated that she noticed a change in Mr Tarantino’s behaviour in August 2014 and that he was “being paranoid”. [326] In her oral evidence Ms Kovacs stated that Mr Tarantino moved in with her in April 2014. She said that in August 2014 Mr Tarantino’s brother collected his items from Ms Ross’ apartment in North Sydney and transported them to near her home. She said that while the items were being unpacked, she saw “two men standing on the footpath … maybe 100 metres behind us” and they just “stood there and intently watched what we were doing”, [327] which she said she found “strange”. Mr Tarantino told her that he was worried that his brother had been followed. [328]

3. [119]

   In her statement, Ms Kovacs addressed the occasion when they both left and went to stay at her sister’s house. She stated: [329]

4. [120]

   Ms Kovacs was taken to this part of her statement in her evidence. [330] She said that on the day prior she had attended a funeral of a school friend and, as he was concerned for his safety, Mr Tarantino asked to attend. She stated that when they attended a “gentleman with a beard” watched them from the car park. [331] She recalled Mr Tarantino being concerned about the threats he said he heard coming from the roof cavity. [332] She said that she was “fearful” and they went to her sister’s place. She recounted Mr Tarantino saying that there were “people … in the roof cavity”. [333] Ms Kovacs accepted that she did not hear any threats from the roof cavity from her place or her sister’s place. [334]

5. [121]

   Ms Kovacs also stated that after Mr Tarantino was released from hospital they travelled in a car to a restaurant. She stated that “as we were driving, I could see a car on my left getting very close to me and intensely looking, not just staring, really gazing at us”. [335] After they both entered the restaurant, she said “two gentlemen walked in” and “they did look like bikies”. [336] She said they stood close to her but closer to Mr Tarantino. She could hear them speaking but not what they said. She noticed Mr Tarantino “became scared” and he said “we need to leave”. [337]

6. [122]

   Ms Kovacs also stated that when they both stayed at a hotel in Newcastle in November 2016 she was called by the concierge who stated “Michelle, some of your friends are coming to meet you at 6pm” and “[t]hey just wanted to let you know” which she considered “strange”. [338] On their return they discussed him moving out. Ms Kovacs stated that “[h]e was very concerned for my safety and didn’t want to put myself or my family at risk, so he decided it’s probably best for him to move out”. [339] In cross‑examination she was asked whether she thought Mr Tarantino was paranoid when he moved out. She rejected that, although her answer appeared to reflect her state of mind at the time she gave evidence. [340]

7. [123]

   In her statement, Ms Kovacs gave a fuller picture of the circumstances surrounding Mr Tarantino leaving her home at Canada Bay: [341]

8. [124]

   Ms Kovacs said that when she made her statement she was “shocked” when the police came to her door. [342] However, I accept that statement records her understanding at the time. It is consistent with the intercepted phone conversation noted at [22].

9. [125]

   Ms Kovacs recalled meeting up with Mr Tarantino on the evening of 19 November 2016. She recalled that he was “genuinely scared”. [343]

10. [126]

    To the extent that there is any difference between Ms Kovacs’ oral evidence and her statement then I accept the contents of her statement. Otherwise, I do not accept that her evidence provides any support for the contention that Mr Tarantino was either followed or threatened. Ms Kovacs agreed that she never heard any threats even though she was in close proximity to him for a number of years. [344] The surveillance evidence confirms that she thought the fears were baseless (see [22] and [30]). The incidents she described of seeing people who might have been bikies looking at them from a car or in the street were most likely innocuous interactions. The contemporaneous evidence does not suggest Ms Kovacs had any concern for her own safety in October and November 2016.

Allan Gerada

1. [127]

   Mr Tarantino’s older brother, Allan Gerada, provided a statement and gave oral evidence on the voir dire. In his statement dated 21 November 2016, Allan Gerada said that his brother “was always talking about [them] coming to get him” and he “always thought it was his paranoia”. [345] However, he also said that “one time between 1999 and 2000” he was followed to his home in Wentworthville [346] by people who “pulled up in the driveway and [who] stopped at the front door at the house”. [347] In oral evidence he stated that he believed this occurred near Mr Tarantino’s birthday which was in July. [348] He also recounted speaking to Mr Tarantino at a lunch just prior to 20 November 2016 in which he was “talking about the bikies”. [349]

Sam Gerada

1. [128]

   A statement from Mr Tarantino’s younger brother, Sam Gerada, dated 21 November 2016 was tendered. [350] In that statement, he recounts his brother expressing a fear about the Rebels and Ms Kovacs mentioning to him that Mr Tarantino hears voices. [351] In oral evidence on the voir dire on 26 August 2019, Sam Gerada stated that on 19 November 2016, as he was driving near his home, a driver came up close behind him flashing the headlights on high beam. [352] He said the car stopped at the end of his street and its engine revved while he unloaded his car. [353] In cross‑examination he agreed that this was not referred to in his statement but explained that he did not mention it to the police because when they spoke to him he was not asked to describe any recent unusual event and was otherwise very tired as he was being spoken to by the police late at night. [354] He did not say whether he had advised Mr Tarantino of this incident.

2. [129]

   In any event, I am satisfied that whatever occurred on 19 November 2016 with Mr Gerada, it did not have anything to do with the Rebels and Mr Tarantino or that Mr Gerada believed that it did. In relation to the former, I cannot accept that more than 17 years after the Rebels learnt that Mr Tarantino had assisted the police they might decide to intimidate his younger brother for the first time without expressly identifying themselves on the off‑chance that he might somehow connect the incident with what his brother did. In relation to the latter, I do not accept that if he believed this event was connected to his brother he would not advise the police of the incident when his statement was prepared two days later.

Godwin Gerada

1. [130]

   A record of interview with Mr Tarantino’s father, Godwin Gerada, conducted on 21 November 2016, was tendered. [355] Mr Gerada referred to his son as “very paranoid, he’s sick”. [356] XX XXXXXX XXXX XXXX XX XXXXXXXXX XXX XXXXX XXXXXXX Mr Gerada was telephoned by people that he believed were associated with the Black Market Café shooting [357] seeking to ascertain Mr Tarantino’s whereabouts. He said he told them “look, if you know where he is, let me know, because I haven’t seen him”. [358] He said he was only telephoned once. [359]

Psychiatric Evidence

1. [131]

   Evidence from three psychiatrists, Dr Adams, Dr Ellis and Dr Martin, and a psychologist, Dr Seidler, were tendered on the voir dire. Much of that evidence overlapped with that adduced on the inquiry into whether the accused was fit to be tried (see R v Tarantino (No 4) [2019] NSWSC 1055 at [28] to [36]).

2. [132]

   Of the four professionals, only Dr Adams has consulted with the accused. At the request of Mr Tarantino’s then solicitor, he saw Mr Tarantino on 20 February 2017 at the Parklea Correctional Centre, and again on 4 August and 31 August 2017 at the Metropolitan Remand and Reception Centre. He produced a report dated 6 September 2017 which was directed to whether Mr Tarantino was fit to stand trial. [360] In that report, Dr Adams summarised Mr Tarantino's psychiatric history, including the origins of his belief that persons associated with the Rebels still wish to harm him and his family. Based upon his consultation with Mr Tarantino, Dr Adams noted that during his time in detention Mr Tarantino's fears had extended to both the police cells and later in gaol. He recorded that Mr Tarantino believed that "motorcycle gang members were working in cahoots with corrupt officers in order to harass and persecute him", as were correctional officers.

3. [133]

   Dr Adams concluded that Mr Tarantino was experiencing symptoms of psychosis "in the form of a delusional belief system and thought disorder", [361] manifesting in ideations of persecution by OMCG members over many years which had by then extended to police and correctional officers. Dr Adams referred to Mr Tarantino's clinical presentation as “challenging” but added that “it appears to be the case that his persecutory concerns [are] likely [to] have a basis in reality”. [362] He concluded that Mr Tarantino’s presentation was in “keeping with a diagnosis of a schizoaffective disorder”, but added that he also considered a “differential diagnosis of schizophrenia and possibly a delusional disorder” as well. [363]

4. [134]

   Dr Ellis provided a report dated 21 July 2019 which addressed a series of questions directed to the reliability of the admissions made to the police in 2016. [364] Although Dr Ellis did not consult with Mr Tarantino, he reviewed a vast number of medical records and reports, including Dr Adams’ report as well as the recorded interviews and surveillance material. [365] Dr Ellis concluded that in November 2016 Mr Tarantino was “likely suffering from psychosis” generated by a schizoaffective disorder. Dr Ellis noted that the “core symptom” of a psychotic disorder are “delusion[s]”. [366] Dr Ellis concluded that the material suggested that in November 2016 Mr Tarantino “held a strong delusional belief that he and others close to him were under threat at the time” even though (or even assuming) there was no objective evidence that such a threat existed in reality [367] and that “the death of Ms Diec is [incorporated] into his wider delusional system”. [368] In answer to the question as to whether Mr Tarantino’s presentation to the police in November 2016 was the product of a “free choice” to confess, Dr Ellis stated that “he had formed a fixed view, extended from his primary delusion that he, and those close to him were persecuted, that to solve this he must confess to a crime”. [369] In his oral evidence he qualified this by stating that he was not purporting to determine whether as a matter of fact Mr Tarantino had been threatened. [370]

5. [135]

   In one part of his report Dr Ellis stated that, from the material, “there is no way to determine if the belief that he killed Ms Diec is a delusion itself, a lie he makes to secure police protection or a genuine memory”. [371] Later in the report Dr Ellis addressed the question “whether the truth of the admissions made in these circumstances is unlikely to have been adversely affected?” [372] This question was intended to reflect the test posed by s 85 of the Evidence Act. In his report Dr Ellis answered this question as follows: [373]

6. [136]

   Dr Ellis also referred to Mr Tarantino being tired and suffering from benzodiazepine withdrawal during the first ERISP. [374] The latter conclusion was based on some observations of nursing staff on his reception into custody on 21 November 2016. Dr Ellis noted that he received “tapering dose[s] of medication” over the following days.

7. [137]

   In his oral evidence, Dr Ellis explained that he understood the reference to “truth” in the questions posed of him to be referring to Mr Tarantino’s capacity to convey accurate memories. [375] In relation to the three alternatives noted above, Dr Ellis agreed that he no particular expertise in ascertaining whether Mr Tarantino deliberately lied to the police about his involvement in Ms Diec’s disappearance. [376] He also agreed that if Mr Tarantino had been involved in her disappearance and he was suffering from psychosis at the same time then his memory of the event was likely to be impacted. [377] Similarly, if the source of his knowledge of events surrounding her disappearance was the interview with police in 1999, and he was suffering from psychosis, he agreed that one means of determining which of the above three alternatives may be correct was to compare it to other evidence and known facts but he stated that he did not undertake that task. [378]

8. [138]

   In her report dated 30 July 2019, Dr Seidler referred to Mr Tarantino as having a "mental illness", one component of which was "delusional and psychotic thought processes". [379] Otherwise, her findings were similar to those made by Dr Ellis. Dr Seidler was satisfied that Mr Tarantino “genuinely believed” the threats to be true, that he needed to confess to Ms Diec’s murder to protect himself, his family and his girlfriend [380] and she was “confident that … Mr Tarantino did not believe he was able to make another choice [other than to confess] without serious harm coming to his family and loved ones”. [381] As to whether the truth of the admissions was unlikely to have been affected, Dr Seidler stated that she could not “comment on the veracity of Mr Tarantino’s claims that he murdered Quanne Diec” but added that “it is possible that Mr Tarantino’s thinking in relation to his involvement in the murder of Quanne Diec has a delusional component”. [382]

9. [139]

   In his report dated 6 August 2019, Dr Martin found that “on balance” Mr Tarantino has a “major mental illness” being “most likely Schizoaffective Disorder or Schizophrenia” which had been “complicated” by substance abuse. [383] He concluded that it was “a reasonable inference” that Mr Tarantino was suffering from symptoms of mental illness at the time he made admissions to the police in November 2016. [384] In relation to the question posed of Dr Ellis and Dr Seidler noted above, Dr Martin agreed that it was “at least possible that [Mr Tarantino’s preoccupation with delusional beliefs] could have affected [the] reliability [of] his admission”. [385] However, he added that it “is not to say that the admissions are not based in truth”. [386] He explained that a psychiatrist would resolve that question in the same manner as a Court might, namely by “seeking corroborative information”. [387] In cross‑examination, Dr Martin agreed that like Dr Ellis he was not seeking to express a concluded view as to whether Mr Tarantino had in fact been threatened in November 2016. [388]

Conclusion

1. [140]

   Four matters should be noted about the psychiatric evidence. First, the expert evidence was unanimous in concluding that Mr Tarantino suffered from a mental illness in November 2016, including during the period 20 to 28 November 2011, specifically a schizoaffective disorder or schizophrenia (one symptom of which was delusions).

2. [141]

   Second, the expert evidence was also unanimous in affirming that Mr Tarantino’s primary or principal delusion was that he was followed and that he and those close to him were at threat from persons associated with the Rebels.

3. [142]

   Third, the expert evidence was equally unanimous to the effect that Mr Tarantino genuinely believed he needed to confess to the police to secure the safety of himself, his family and his partner. However, the psychiatric evidence did not suggest that he was motivated to confess to his brothers for the same reason.

4. [143]

   Fourth, the evidence raised the possibility that his mental illness affected the truth of his confession. As noted Dr Ellis raised three possibilities about the reliability of the confession (see [135]). One of them can be discounted, namely that Mr Tarantino told the police a deliberate lie about his involvement in Ms Diec’s death. Mr Tarantino made the same confession to his brothers. There was no reason to confess to them that he killed Ms Diec when they could not offer him protection as opposed to confessing to the police who could. Otherwise, of the two remaining possibilities, namely that his belief that “he killed Ms Diec is a delusion itself” or a “genuine memory”, Dr Ellis leaves open both as possibilities without attributing any probability to either. Put another way, as Dr Seidler stated “it is possible that Mr Tarantino’s thinking in relation to his involvement in the murder of Quanne Diec has a delusional component” but no more can be said.

Further Findings

1. [144]

   I have already made a number of findings by reference to portions of the evidence (see [46] to [50], [71], [75], [80], [124], [126]). Having considered all of the evidence on the voir dire I adhere to those findings. I also accept the matters set out at [140] to [143].

2. [145]

   Three further matters of fact should be addressed.

3. [146]

   First, Ms Rigg submitted that the evidence adduced on the voir dire was capable of supporting a finding that “actual threats [had] taken place”. [389] Ms Rigg pointed to Mr Tarantino’s evidence, the consistency of recorded complaints and the evidence of his family. [390] Ms Rigg also relied on the entry in the hospital notes from 2004 concerning the SMS message. [391]

4. [147]

   In addressing this evidence, I bear in mind that Mr Tarantino is clearly mentally ill and has been for a long time. The most substantial aspect of his mental illness and his primary delusions concern this very topic. Leaving aside Mr Tarantino’s evidence, both Allan Gerada’s and Godwin Gerada’s evidence suggest that the Rebels were seeking to intimidate Mr Tarantino around 1999 either because of a concern that he might assist the prosecution or because they learnt that he already had assisted. As for Mr Tarantino’s evidence concerning that period, I accept the likelihood that he may have been directly threated by Mr Culshaw. However, I do not accept the balance of his evidence about shots being fired outside his cousin’s home or his being followed up to the time he presented to a police officer at Granville. The account he gave of being followed on that day involved a preposterously sophisticated surveillance operation with multiple operatives across a number of trains. I do not accept that the Rebels would undertake surveillance of that sophistication rather than put into effect a direct reprisal.

5. [148]

   Further, I do not accept that there have been threats or intimidation of Mr Tarantino on behalf of or directed by the Rebels (or anyone) since 2000. To the contrary, I am satisfied that the threats, surveillance and intimidation he recounted are either outright delusions or involved his delusional mind misinterpreting innocuous events. As noted, he was severely mentally ill throughout that period and the focus of his delusions concerned threats from the Rebels. The extensive medical and police notes reveal a sad consistency of someone presenting with delusional fears. As noted, one common feature of his perception of threats and intimidation is that they invariably occur when no one else is present, even people such as Ms Kovacs who were very close to him for sustained periods of time. The sole piece of potentially corroborative evidence of his threats is the SMS message referred to at [97] which I have already addressed.

6. [149]

   If Mr Tarantino’s evidence about threats was to be accepted, it would demonstrate that the Rebels motorcycle gang has maintained a sophisticated surveillance system across three states, with multiple operatives and intricate electronic surveillance for a period in excess of 16 years. It has apparently done so while only attempting to carry out those treats twice. The first was an alleged attempt to drag Mr Tarantino into a motor vehicle in Western Australia approximately 15 years ago. The second was the alleged poisoning of a cat kept his ex-partner three years after they ceased living together and undertaken in circumstances that fooled her and apparently a veterinarian into believing it died of natural causes. I do not accept that the Rebels operated in that way.

7. [150]

   Second, nevertheless I accept that as at 20 November 2016 Mr Tarantino genuinely believed that he had been the subject of threats, surveillance and intimidation for over 16 years, although they were the product of his deluded mind. This was not disputed by the Crown and it is otherwise overwhelmingly supported by all of the evidence on the voir dire, especially the surveillance evidence summarised above. Further, I accept that Mr Tarantino made the admission in his telephone call with Constable Mungovan noted at [32] and subsequently attended at the Surry Hills Police Station to confess because he genuinely believed that it was necessary to do so to protect himself and those close to him. Further, I accept that this belief was still operative when Mr Tarantino participated in the walkthrough on 23 November 2016 and the second ERISP on 28 November 2016.

8. [151]

   Third, I have already noted that there is no direct evidence that Mr Tarantino confessed to killing a child to his brothers because he believed it was necessary to protect himself and those close to him. Ms Rigg submitted that it should be inferred that Mr Tarantino confessed to his brothers to avoid them advising the police that he was innocent. [392] Mr Tarantino gave no such evidence and that I decline to draw that inference.

Analysis

1. [152]

   As noted, the bases for exclusion of the evidence of the admissions noted at [3] are ss 84, 85 and 90 of the Evidence Act. Those sections provide:

2. [153]

   Further, s 189(3) of the Evidence Act provides:

3. [154]

   The issue of the “truth or untruth” of the admissions made by Mr Tarantino has no possible relevance to s 84, however it is potentially relevant to ss 85 and 90. Nevertheless, at no stage has Mr Tarantino sought to invoke this provision. It follows that the “truth or untruth” of the admissions is to be disregarded in determining their admissibility. In R v Ye Zhang [2000] NSWSC 1099 at [52], Simpson J noted that when this section is engaged “[t]he attention of the Court is to be directed to the circumstances in which the admission was made, excluding evidence that would substantiate or contradict the admission”.

4. [155]

   The primary submission made on behalf of Mr Tarantino for the exclusion of the admissions was as follows: [393]

5. [156]

   One aspect of this submission, as reflected in the balance of the written submissions [394] and expanded upon in oral submissions, [395] is that the Court should approach the application by first addressing s 84 and then s 90 before addressing s 85, so that the approach is similar to how questions of voluntariness and the exercise of the “Lee” discretion (R v Lee (1950) 82 CLR 133) were undertaken at common law. However, in EM v The Queen (2007) 232 CLR 67 at [109] (“EM”), Gummow and Hayne JJ declared that “although the discretion given by s 90 is generally similar to the common law discretion considered in Lee, it is a discretion that will fall to be considered only after applying the other, more specific, provisions of the Act” including ss 84 and 85.

6. [157]

   Generally, the admissibility of the admissions must be addressed by applying the Evidence Act and not the common law. Nevertheless, in light of the manner in which the case for exclusion based on these provisions was put, it is necessary to state the effect of the common law in relation to admissions of the kind made by Mr Tarantino to the police and outline the origins of the statutory provisions noted above. In particular, three related aspects of the submissions made on behalf of Mr Tarantino must be addressed. First, there is the contention that the admissions made by Mr Tarantino were “in all meaningful respects involuntary”, a submission that can only have meaning by reference to the common law as the phrase “voluntary” does not appear in the Evidence Act in this context. [396] Second, the contention that the reference to “threat” in s 84 extends to “perceived threat”. [397] Third, the contention that for the purposes of s 85 the “circumstances” in which the admission was made include Mr Tarantino’s mental illness.

7. [158]

   At common law the circumstance where, by reason of his own delusions, Mr Tarantino believed that by confessing he could make himself and others safe from threats to his and their safety, would not render his admissions involuntary. In Sinclair v The King (1946) 73 CLR 316 (“Sinclair”), it was argued that the confession of a person suffering from schizophrenia was involuntary on the basis that it might be the product of a delusion. Latham CJ treated the admissibility of the confession of a person suffering from mental illness as the “same in substance” as would arise upon an assessment of his competence as a witness, that is it should only be rejected if it was clear that “no attention ought to be paid to what he said” in that he is “obviously insane and incapable of understanding questions put to him” (at 323). Dixon J rejected the contention that the person’s mental illness raised an issue as to the voluntariness of the confession, citing R v Warickshall (1783) 168 ER 234 for the proposition that a “rule which excludes evidence or statements made by a prisoner, when they are induced by hope held out, or fear inspired, by a person in authority, is a rule of policy.” Later Dixon J accepted that a confession may be rejected because the confessor’s “unsoundness of mind is such that no account ought to be taken of his self‑incriminating statements” (at 338). His Honour added (id):

8. [159]

   Two years later in McDermott v The King (1948) 76 CLR 501 at 511 (“McDermott”), Dixon J referred to the “imperative rule” that required the rejection of involuntary statements. His Honour observed that “[a]t common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made”, this meaning that it had been “made in the exercise of his free choice”. His Honour explained that “[i]f he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne” and “[if] his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary”. Rejection of the evidence would also follow if the admission was or preceded by an “inducement held out by a person in authority” (at 511).

9. [160]

   These statements all point to the position that, save for the extreme case where the confessor is effectively not competent to give evidence, it is a necessary condition to the invocation of the exclusionary rule based on voluntariness (“basal voluntariness”) that there be some external action or conduct that overbore the confessor’s will. This was the view of intermediate courts of appeal (R v Azar (1991) 56 A Crim R 414 at 419; R v Pfitzner (1996) 66 SASR 161 at 172 (Doyle CJ); Arnott v R (2009) 26 VR 490 at [15] (Ashley JA) (“Arnott”)) and was confirmed by the High Court in Tofilau v The Queen (2007) 231 CLR 396 (“Tofilau”). In Tofilau at [16], Gleeson CJ referred to the common law as directed to the “specification of a particular form of conduct” namely the “application of a certain kind of coercive force external to a confessionalist, which it will not accept as a reason for voluntary action” (at [16]). Similarly, Gummow and Hayne JJ (at [53]) noted the common law did not require a “subjective inquiry into the mind of the confessionalist to determine why it was that he or she made the [confession but instead] the common law rules have sought to operate by excluding evidence from consideration … that is deemed so unreliable as a class”. Later they referred to “[b]asal voluntariness” being concerned with “confessions made under compulsion ... that is said to have overborne the free choice of whether to speak or to remain silent” where the concept of “overborne” was that described by Dixon J in McDermott, namely “as a result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure”. [398]

10. [161]

    In Tofilau, Callinan, Heydon and Crennan JJ admitted of a limited exception to the necessity for some external factor overbearing the will of the confessor (at [340]):

11. [162]

    The “very narrow extent” to which their Honours were referring in this passage were the circumstances adverted to in Sinclair noted above (see also Arnott at [15]).

12. [163]

    McDermott also referred to the discretion to exclude confessional statements that were made voluntarily. Thus, Dixon J referred to the discretion to exclude such confessions the exercise of which requires “a judgment upon the propriety of the means by which the statement was obtained by reviewing all the circumstances and considering the fairness of the use made by the police of their position in relation to the accused” (at 513). Latham CJ referred to the trial judge having a discretion to reject a confession if “in all the circumstances it would be unfair to use it in evidence against him” (at 506 to 507). In Lee at 151, Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ referred to these two statements as “fully and adequately” stating the position. Their Honours added that the onus of satisfying the trial judge to exercise the discretion rests on the accused (at 152 to 153) and that a relevant consideration was whether any “impropriety” in procuring the confession was “such as to be likely to result in the making of an untrue admission”.

13. [164]

    The scope and rationale for this discretion became less certain in the years after McDermott and Lee were decided. In R v Swaffield (1998) 192 CLR 159 at 196 (Swaffield”), Toohey, Gaudron and Gummow JJ noted that, in considering the exercise of the discretion along with the associated public policy discretion to exclude improperly obtained evidence, “it is not always possible to treat voluntariness, reliability, unfairness to the accused and public policy considerations as discrete issues”. Hence their Honours noted that “[u]nreliability is an important aspect of the unfairness discretion but it is not exclusive” (at 197) and that a “question [of] whether admissions … were made in the exercise of free choice to speak or be silent” went not only to voluntariness but also to the exercise of the discretion (at 196) Their Honours discussion of the latter concept went beyond considering whether the will was overborne (at 201) but nevertheless addressed it in terms of the influence of external factors. Thus, their Honours referred to the “freedom to choose to speak … be[ing] impugned” and the “means by which the confession was elicited” (at 202) as bearing on an assessment of all the circumstances that comprise the assessment of unfairness. Similarly, in Swaffield at [19], Brennan CJ cited his earlier judgment in Duke v The Queen (1989) 180 CLR 508 at 513 in support of the proposition that unfairness can arise “because no confession might have been made if the investigation had been properly conducted”.

14. [165]

    Two matters relevant to Mr Tarantino’s submission extracted at [155] should be noted. First, in so far as common law voluntariness is concerned, the psychiatric evidence concerning Mr Tarantino’s mental illness does not support any finding which might render his confessions involuntary solely on account of his mental illness. Thus, even though in making his admissions to the police he may have felt that it was necessary to confess to avoid harm to himself and others, it is not accurate to describe his admissions to the police as “involuntary”. The evidence does not establish that, at the time of his discussions with the police (and his brothers), he was effectively incompetent to give evidence, that “no attention ought to be paid to what he said” or that he was “obviously insane and incapable of understanding questions put to him” (Sinclair at 323 (Latham CJ)).

15. [166]

    Second, it follows that whatever be the position in the realm of psychiatry, at common law, the distinction between a confession that arises from a will overborne by external conduct and a will “overborne” by an accused’s delusions was not “technical, arid and meaningless”. The former was treated as being “unreliable as a class” (Tofilau at [53]) so that on the making of an operative threat or offer of an inducement it was automatically excluded as being “involuntary” with no inquiry into the reliability of the particular confession undertaken. In relation to the latter, it was not treated as “unreliable as a class” but instead the onus was on the accused to persuade the trial judge why it should be rejected as a matter of fairness in all the circumstances, including the alleged unreliability of the particular confession.

ALRC Report No 26

1. [167]

   Sub-section 3(3) of the Evidence Act provides that, without limiting the effect of s 34 of the Interpretation Act 1987, the material that may be used in the interpretation of a provision of the Act includes any relevant report of a Law Reform Commission laid before either House of the Parliament of the Commonwealth before the provision was enacted. The Australian Law Reform Commission (“ALRC”) published two relevant reports on evidence, an interim report in 1985 (“Report No 26”) and a final report in 1987 (“Report No 38”). Both of the reports were tabled in the Commonwealth Parliament, the former on 21 August 1985 and the latter on 5 June 1987.

2. [168]

   Report No 26 expressed dissatisfaction with the common law approach to voluntariness and its relevance to the truthfulness of the confession. [399] It did not propose retention of the voluntariness test, considering it unsatisfactory because of uncertainty about, inter alia, the “precise meaning of ‘voluntary’ and the related concept of ‘free choice’ in the test”, the “relevance of personal characteristics of the accused” and “whether there always needs to be a causal link between the external conduct and the confession”. [400] It proposed that, “first there be an exclusionary rule excluding evidence of admissions where an interrogation has employed methods of extreme coercion like physical violence”, and also there be enacted a so‑called “truth test” which required the trial judge to be satisfied “that the admission was made in circumstances that there were not likely to be affect its truth adversely”. [401] It also proposed procedural safeguards concerning admissions.

3. [169]

   In relation to the exclusionary rule, Report No 26 stated that “it is also proposed to adopt a rule of exclusion for admissions obtained in circumstances of violence, oppressive, inhuman degrading conduct, or the threat of such conduct”. [402] This suggestion was reflected in the forerunner to s 84, namely s 71 of the draft bill that was included in Report No 26. This provision excluded evidence of an admission “unless the Court is satisfied that the admission, and the making of the admission, were not influenced by violent, oppressive, inhuman and degrading conduct, whether toward the person who made the admission or toward some other person, or by a threat of conduct of that kind”. [403] This provision was included under s 72 in the draft bill enclosed with Report No 38 [404] and was included in the Evidence Act as s 84 in its current form when it was first enacted by the Commonwealth and New South Wales. In all of its iterations, s 84 had a mostly narrower operation that the “imperative rule” relating to voluntariness at common law in that confessions induced by promises, inducements or threats that did not suggest conduct of the kind referred to in s 84(1)(a) were not to be treated “as a class” of confession that warranted immediate rejection, but instead were subject to the evaluative process specified by s 85.

4. [170]

   In relation to the “truth test”, Report No 26 stated: [405]

5. [171]

   The italicised portion suggests that the individual characteristics of a confessionalist, as referred to in the current version of s 85(3)(a), are part of the circumstances in which an admission was made. However, the bold portion indicates that s 85(2) is directed to the “way” or manner in which the admission was obtained and its likely impact on the truth of the admissions.

6. [172]

   The ALRC’s “truth” proposal was reflected in ss 72(4) to (6) of the draft bill that accompanied Report No 26. Subsection 72(4) provided that evidence of an admission was not admissible “unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected”. Subsection 72(5) was in near identical form to the current s 85(3). Subsection 72(6) enacted a special rule where a solicitor was present. It need not be considered further. At that time s 72, unlike s 85 in its enacted form, applied to all admissions by an accused and not just to those made during police questioning.

Report No 38

1. [173]

   The draft bill accompanying Report No 26 did not include any equivalent to current s 90 or s 189(3). However, this was addressed in Report No 38. Of present relevance is that the ALRC accepted that its proposal in Report No 26 suffered from “two major disabilities”, [406] which it duly addressed. First, it deleted that aspect of its proposal which allowed the accused to be questioned as to the truth of the admissions “and in its place [proposed that] a provision [be] inserted that questions as to the truth of the admission are not allowed”. [407] This was reflected in a revised s 73 which now included a provision stating that “evidence that the admission is true or untrue is not relevant”. [408] Second, Report No 38 also accepted that there was a need for “a discretion to enable the trial judge to exclude evidence of admissions that were obtained in such a way that it would be unfair to admit the evidence”. [409] This was reflected in s 79 of the draft bill which accompanied Report No 38 and was similar to s 90 as enacted.

The Evidence Act

1. [174]

   Report No 38 was published in 1987. Four bills concerning evidence were presented to the Commonwealth Parliament in the following seven years (Evidence Bill 1987 (Cth), Evidence Bill 1991 (Cth), Evidence Bill 1993 (Cth), Evidence Bill 1994(Cth)). The first two contained provisions which were virtually identical to s 73(1) and 73(2) of the draft bill that accompanied Report No 38. [410] The Evidence Bill 1993 (Cth) included s 85. Subsections 85(2) and 85(3) were similar to s 73(2) and 73(4) and identical to s 85(2) and 85(3) when enacted. However, s 85(1) confined their operations as follows:

2. [175]

   Sub-section 85(4) provided that s 85 did not confine the operation of s 84. Sections 84, 90 and 189(3) were in a form that was not relevantly different to what was enacted.

3. [176]

   Of present relevance is the Explanatory Memorandum that accompanied this part of the Evidence Bill 1993 (Cth). It stated: [411]

4. [177]

   The emphasised comments are directed to the interrelationship between what became ss 85(3) and s 85(2). It suggests that the matters in s 85(3) are not so much “circumstances” in which the admission was made but instead inform the assessment of whether the circumstances were such that they were likely to adversely affect its truth. While a statement in an explanatory memorandum to the Commonwealth Parliament does not fall within s 34(2) of the Interpretation Act, in the case of New South Wales legislation that is based on and identical to Commonwealth legislation, it would fall within s 34(1). Otherwise, by the operation of s 15AB(2)(e) of the Acts Interpretation Act 1901 (Cth), this material is clearly relevant to the interpretation of the identical provisions of the Evidence Act 1995 (Cth) and those provisions should be interpreted in the same manner as the New South Wales Act.

5. [178]

   A modified s 85(1) that expanded the scope of the provision was presented to Parliament in the Evidence Bill 1994. It now provided that the section applied to an admission made by a defendant “in the course of official questioning” or “as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued”. Sections 85(2) and 85(3) were unaltered. Section 85(4) was removed entirely. It was this version that was ultimately enacted by both the Federal and New South Wales Parliaments in 1995.

6. [179]

   In describing the effect of s 85 as altered, the Explanatory Memorandum to the Evidence Bill 1994 stated (at [148]):

7. [180]

   Thus, the application of the “Truth test” advocated by the ALRC to all confessions was substantially modified during the legislative process so that it was effectively confined to official questioning. The Explanatory Memoranda that accompanied the changes made to these Bills appear to reflect a subtle but potentially important change to the stated understanding of the interrelationship between s 85(2) and s 85(3). This is perhaps explicable by reference to a refocusing of the section on the unreliability of admissions obtained during official questioning.

8. [181]

   In Kelly v The Queen (2004) 218 CLR 216, a majority of the High Court construed the phrase “official questioning” in s 8(1) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas) as referring to the period of time marked by when the questioning of a suspect commenced and ceased such that an admission made after that time which was not recorded was admissible. The ruling in Kelly affected the scope of s 85(1) and led to the amendment of s 85(1) to its current form by the Evidence Amendment Act 2007 which expanded its scope. The amendment was preceded by an ALRC Report published in December 2005 on the uniform Evidence Law (“Report No 102”) which, inter alia, addressed s 85, including the effect of Kelly. However, the ALRC also addressed the relevance of an accused’s personal circumstances and its interrelationship with s 85(2). [412] It noted its own statement in Report No 26 concerning the “truth test” without addressing the significant modification of the section between the time of that report and Report No 38 on the one hand and the enactment of the provision in 1995 on the other. [413] It also stated: [414]

9. [182]

   This discussion has its difficulties. It proceeds on the assumption that the origin of s 85 lay exclusively in ALRC Report No 26 and overlooked the course of legislative history that confined the provision’s operation to police questioning and which included Explanatory Memoranda that suggested a different approach to the interrelationship between s 85(2) and s 85(3)(a). Further, the case cited in support of the second emphasised passage is a judgment of Bell J (as her Honour then was) in R v Pieter Egbert Helmout [2000] NSWSC 185 (“Helmout”) which, as explained below, applied the Court of Criminal Appeal decision in R v Rooke (NSWCCA, 2 September 1997, unrep) (“Rooke”). Neither of those decisions are simply decisions “on their specific facts”. Instead, both proceed on a construction of s 85 that is inconsistent with the ALRC’s assertions as to how the section operates. Further, these passages wrongly treat those cases as somehow suggesting that the operation of the section is confined to instances of police misconduct. They do not. Instead, they treat the accused’s subjective circumstances as matters that affect the likelihood that his responses to official questioning or police interviews were likely or unlikely to be truthful. It is difficult to determine what use, if any, can be made of a discussion in an ALRC report that asserts a provision is clear and wrongly characterises judicial decisions that interpret it differently. In any event, little weight can be attached to this discussion given that its only role in the legislative process was, apparently, as a basis for not amending ss 85(2) and 85(3).

10. [183]

    For present purposes, three matters should be noted about the legislative history of these provisions. First, it is evident that the common law concept of voluntariness was not translated into the Evidence Act. Instead, a narrower version of an “imperative” rule so far as proscribed conduct is concerned was enacted in the form of s 84. Second, nothing in the legislative history provides any support for an expansive view of the meaning of “threat” in s 84(1)(b) such that it would somehow extend to a perceived threat that is the product of the confessor’s delusional mind. To the contrary, to so find would be inconsistent with the history of the provisions. Third, the legislative history is ambiguous as to the intended scope of the consideration of a confessor’s personal characteristics as listed in s 85(3)(a) to the test in s 85(2) (“for the purpose of”). The Explanatory Memorandum that led to the introduction of s 85 in its current form suggests that those matters are to be considered as part of the assessment of whether the circumstances in which the admission was made were such that it was unlikely that the truth of it was adversely affected, whereas the relevant ALRC reports appear to suggest that such matters are themselves circumstances in which the admissions were made.

Section 84

1. [184]

   Mr Tarantino seeks the exclusion of all of the admissions on the basis of s 84. The text of s 84 is set out above. The Crown submitted that Mr Tarantino was not the subject of any relevant threat and a genuine but deluded belief that a person is threatened does not engage the section.

2. [185]

   In Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299 at [273], the Court of Appeal held that s 84(1) placed the relevant onus upon the party seeking to have the evidence admitted once it was found that there was conduct of the kind referred to in s 84(1). On behalf of Mr Tarantino it was submitted that once there is an evidentiary basis for a finding that conduct of the kind referred to in s 84(1) occurred, the onus is the party seeking admission of the confessions to prove that it did not. [415] I do not accept that submission, however it does not matter as, save for conduct prior to 2000, I am satisfied that there were no relevant threats. In relation to the conduct prior to 2000, I am satisfied that his conversation with Constable Mungovan, attendance at the police station and subsequent confessions to the police were not influenced or affected in any way by any actual threat he might have received before 2000. Instead, they were solely the product of his delusions about being followed and threatened in the immediately preceding years and months prior to his attendance.

3. [186]

   As noted, it was submitted on behalf of Mr Tarantino that the reference to “threat” in s 84(1)(b) includes a perceived threat that is the product of a deluded mind. [416] All of the cases that have addressed s 84 have concerned evidence of external conduct (eg, R v Blackman [2018] NSWSC 395). The ordinary meaning of the word “threat” is an actual threat and not a perceived threat that is only the product of a person’s mental processes. The terms of s 84(1)(a) support this, as it difficult to conceive of a threat “towards the person who made the admission or towards another person” where it is only the product of a person’s mental processes. The legislative history of s 84 confirms this construction. Otherwise, I am not satisfied that the admissions Mr Tarantino made to his brothers were the product of any belief on his part that it was necessary to confess to avoid harm to himself or others.

4. [187]

   It follows that none of the evidence of the admissions described in [3] are inadmissible by reason of s 84 of the Evidence Act.

Section 85

1. [188]

   Ms Rigg submitted that both ERISPs, the recording of the walkthrough on 23 November 2016 and the statements of Plain Clothes Senior Constable Brooks and Senior Constable Wang should be excluded under s 85(2) of the Evidence Act. As noted, the Crown submitted that s 85(1) did not extend to the evidence of admissions found in the statements of Plain Clothes Senior Constable Brooks and Senior Constable Wang. I will address their exclusion on the basis favourable to Mr Tarantino, ie, that the evidence falls within those provisions.

2. [189]

   Ultimately, the application of these provisions to the evidence of four sets of admissions just noted turns upon an issue of construction. On behalf of Mr Tarantino it was submitted that the “circumstances in which the admissions were made” included his mental condition and when taken with the psychiatric evidence, this meant the Crown did not discharge its onus. The Crown accepted that Mr Tarantino’s mental condition could be taken into account “for the purposes of s 85(2)” but submitted that this only meant for the purpose of ascertaining whether the circumstances in which the admissions were made rendered it unreliable. It contended that the “circumstances in which the admission was made” did not include the confessors “condition or characteristics generally nor does it mean the effect of that condition or characteristic insofar as it affects or might affect the reliability of the admission”. [417] I accept the Crown’s submission.

3. [190]

   In Rooke, Barr J (with whom Newman and Levine JJ agreed) stated:

4. [191]

   In Rooke, Barr J rejected the contention that certain circumstances which may have demonstrated that the alleged confession could not be true and was apparently a concoction were “circumstances” for the purposes of s 85(2). However, the emphasised portion of the above extract goes further. It ties the inquiry, including a consideration of the applicant’s subjective circumstances, to an assessment of the response of the confessor to “official questioning”. This reflected the terms of s 85(1) at the time Rooke was decided. Translated to the current version, it would limit consideration of the accused’s personal circumstances to their response to the performance of the functions specified in s 85(1).

5. [192]

   Rooke was applied by Bell J (as her Honour then was) in Helmout. In Helmout at [41], her Honour described the task required as “concerned with whether the circumstances of the official questioning were such as to produce unreliable evidence” an approach that, in my respectful view, was entirely consistent with Rooke. Similarly, in R v Munce [2001] NSWSC 1072 (“Munce”), McClellan J addressed the admissibility of a confession provided by an accused who had a long history of alcohol and drug abuse and was diagnosed as alcohol dependent with depression and personality problems (at [11], [15]). He suffered “flashbacks and nightmares” in relation to the offence and the psychiatric evidence cast significant doubt on the accuracy of his recollection. Nevertheless, applying Rooke, McClellan J held that s 85 did not require the rejection of the admission. His Honour reasoned (at [27] to [28]):

6. [193]

   Ms Rigg relied on a decision of Hidden J in R v Braun (NSWSC, 24 October 1997, unrep) in which his Honour regarded the accused’s mental state as a circumstance warranting rejection of a confession. [418] With respect to his Honour, that approach is inconsistent with Rooke.

7. [194]

   Much more recently in R v Lou [2017] ACTSC 127 (“Lou”), Burns J was required to address the admissibility of a confession from an accused who was psychotic when he attended the police station, experiencing auditory hallucinations and persecutory delusions (at [11]). During the interview the accused stated that he attended because “probably God made me come in just to fix myself up, I guess” (at [9(a)]). Burns J comprehensively reviewed the common law of voluntariness and the legislative history of s 85. His Honour then referred to Munce (and Rooke) before concluding (at [80] to [82]):

8. [195]

   Applying this approach, Burns J noted that the interview in that case was conducted with “complete propriety” and found that the “circumstances of the questioning of the applicant did not act upon him, as a mentally ill person, in such a way as to adversely affect the truth of the admission” such that they were not excluded under s 85 (Lou at [83] to [84]).

9. [196]

   The approach articulated by Burns J in Lou treats the characteristics of the accused as referred to s 85(3)(a) not as “circumstances in which the admission was made” for the purposes of s 85(2), but instead as matters bearing upon whether those circumstances were such as to make it unlikely that the truth of the admission was adversely affected. It follows from the above that I am doubtful whether that approach is consistent with Report No 38, however it is consistent with the Explanatory Memorandum noted at [179]. In any event, this passage from Lou is, in my respectful opinion, entirely consistent with Rooke, which is an approach that I am bound to adopt.

10. [197]

    In oral submissions, Ms Rigg contended that a wider view of the circumstances in which the admissions were made was warranted having regard to the reasoning in Sio v The Queen (2016) 259 CLR 47 (“Sio”). [419] One issue in Sio concerned whether a hearsay statement by an accomplice implicating the accused was admissible under s 65(2) of the Evidence Act and specifically whether it was “made in circumstances that make it likely that the representation is reliable” (s 65(2)(d)). At [73], the High Court held that the status of the maker of the statement as an accomplice was a circumstance that meant that it was not open to the trial judge to be satisfied of the likely reliability of the statement. As I understand it, by parity of reasoning it was submitted that Mr Tarantino’s mental condition was in and of itself a circumstance in which the relevant admissions were made that rendered it likely that the truth of the admission was adversely affected. I accept that there is force in this argument. However, the provisions operate in different ways, have different origins and otherwise the Court in Sio appeared to limit the inquiry under s 65(2)(d) when it noted that it involves “an assessment of the circumstances in which the statement was made to establish its likely reliability, rather than to a general assessment of whether or not it is likely that the representor is a reliable witness” (Sio at [72]). In any event, as noted, I am bound by Rooke and it precludes the adoption of Ms Rigg’s submission.

11. [198]

    Consistent with its submissions concerning the construction of s 85, the Crown submitted that the “circumstances” of the admission made in the first ERISP were the fact that the accused voluntarily attended the police station after advising his family that he would do so, his conduct, demeanour and behaviour during all the interactions with police (including the subsequent ERISP and walkthrough), the duration of the interviews and the tone and content of the questions. [420] In relation to the walkthrough on 23 November 2016, the Crown submitted that the “circumstances” extended to the fact that he was in custody and was thus “safe”, that Mr Tarantino had already confessed, the inquiry made by Detective Mackay the night before as to whether he would attend and his apparent willingness to assist. [421] The Crown made similar submissions in relation to the ERISP on 28 November 2018. [422] I accept those contentions.

12. [199]

    Ms Rigg contended that the “circumstances” included that “Mr Tarantino was capable of having knowledge of a number of details relating to the kidnapping of Quanne Diec in 1998” due to publicity and having been interviewed in 1999. [423] I do not accept that these can be considered as “circumstances”, as s 189(3) precludes a consideration of the “truth or untruth” of the admissions and these “circumstances” appear to be directed to the issue of whether or not Mr Tarantino made admissions to events that only a person who was involved in the disappearance of Ms Diec would know. Otherwise, with the exception of two matters, the balance of the suggested circumstances concern Mr Tarantino’s state of mind, specifically his deluded beliefs, including his belief “that the Rebels had for a long time wanted reprisal for his witnessing of the Blackmarket murders” and that “the risk from the Rebels was not only physical, but required his implication in the abduction and murder of Quanne Diec”. [424] I have made findings about his beliefs and their source above and they include an acceptance that he was motivated to make admissions to the police by a belief that it was necessary to do so to protect himself and others from the Rebels. However, it also follows from the above that they do not constitute a circumstance as such, but instead are matters that bear upon “whether the circumstances of the interviewing process adopted were such as to make it unlikely that the admissions made by the applicant, as a person suffering a particular mental illness, were unlikely to have been adversely affected” (Lou at [82]).

13. [200]

    The other two matters noted by Ms Rigg were that Mr Tarantino was “likely very tired” and “suffering withdrawal from benzodiazepines”. I have already addressed those matters. In relation to the interviews and conversations on 20 November 2016, Mr Tarantino may have been tired and suffering withdrawal but from viewing the ERISP conducted from 8.05pm on 20 November 2016, I am satisfied that neither of those matters were likely to have affected the truth of the admissions made on that day. Thereafter the effects of any withdrawal dissipated and he did not present as tired on 23 November 2016. Mr Tarantino did appear tired during the ERISP on 28 November 2016 but not in any manner that affected his responses to his questioning.

14. [201]

    As noted, in making the admissions recorded in the statements, the two ERISPs and the recording of the walkthrough, Mr Tarantino clearly understood the questions being asked of him and provided clear and responsive answers. There is nothing in the circumstances of those interviews or the walkthrough to suggest that the performance of the investigative function by the police, including their questioning, produced admissions the truth of which was likely to have been adversely affected, even having regard to the accused’s mental illness and associated delusional beliefs (as well as the extent to which he was tired and suffering from benzodiazepine withdrawal). To the contrary, I am satisfied that the circumstances in which the admissions were made were such as to make it unlikely that the truth of the admissions was adversely affected. As noted by McClellan J in Munce at [28], “[a]lthough, by reason of his undoubted psychiatric problems there may be real doubt as to whether the accused was giving an accurate account of the events, there is nothing arising from the objective circumstances of the interview which would impact upon the truth of the admission.” Further, based on viewing those ERISPs and the recording of the walkthrough, the same applies in relation to admissions recorded in the statements of Senior Constable Brooks and Senior Constable Wang.

15. [202]

    Accordingly, the evidence of the admissions recorded in the two ERISPs, the recording of the walkthrough on 23 November 2016 and the statements of Senior Constable Brooks and Senior Constable Wang are not excluded under s 85(2).

Section 90

1. [203]

   The text of s 90 is set out above. In EM it was emphasised that the operation of s 90 cannot be described exhaustively (at [56] per Gleeson CJ and Heydon J and at [109] per Gummow and Hayne JJ), although as next explained, considerations of the reliability of the relevant admission and the manner in which it was obtained are significant. In EM there was a difference of approach amongst the majority judgments as to the interrelationship between s 90 and other provisions of the Evidence Act, at least so far as the relevance of reliability to the exercise of the discretion is concerned. As previously noted, Gummow and Hayne JJ described s 90 as a “safety net” provision which only fell to be considered after the other, more specific provisions of the Evidence Act had been addressed (at [109]). Their Honours noted that where the evidence of the admissions fell within s 85(1) and the application of that provision was resolved adversely to an accused, then a consideration of reliability has “no part to play in the operation of s 90”, although the position may be different if s 85(1) was not applicable (at [112]).

2. [204]

   In contrast, Gleeson CJ and Heydon J held that the reliability of the confession the subject of the application for exclusion is clearly a factor relevant to the exercise of the discretion to exclude (EM at [73]). Further, their Honours addressed the reliability of an admission in both the sense as to whether the admission was in fact made and whether it was likely to be true. With the former sense, there was said to be no doubt in that case as to the reliability of the admission in that it was recorded. With the latter sense, their Honours accepted that while an acceptance of the appellant’s contention that his confession in that case was made to “protect his friends” was a matter for the jury, “it lacked plausibility to a very significant degree” (at [73]).

3. [205]

   As for the “right to silence” and improprieties that affect its exercise, in EM (at [78]), Gleeson CJ and Heydon J addressed a submission to the effect that s 90 unfairness was established by reference to the fact that the tactics of the police had effectively denied the appellant of his “freedom to speak or stay silent” when they surreptitiously recorded an admission while speaking to him in a park. Their Honours rejected this contention, noting that the appellant did not contend that he spoke because of any threat of violence or impropriety or that the circumstances were likely to affect the truth of the admissions (at [78]). His belief that it could not be used in evidence did not make it unfair for the recording of the conversation to be used in evidence (at [78]).

4. [206]

   The existence of a mental disorder affecting the reliability of the admission and the circumstances in which it was obtained are clearly relevant to application of s 90, although they are (usually) considered through the prism of unreliability or unfair conduct of the police. In R v Medcalfe [2002] ACTSC 83 at [24], Higgins J rejected a confession from a mentally ill person who was unfit to plead, did not understand the caution and who was “responding in a manner that would, he thought, please the interviewer”. In R v Gallagher [2013] NSWSC 1102, Bellew J found that the combination of the accused’s cognitive impairment and the manner that the police extracted a confession from her engaged s 90 (at [240] to [242]). Nevertheless, as noted in EM at [107], “the focus of s 90 falls upon the fairness of using the evidence at trial”. In Riley v The Queen [2011] NSWCA 238 at [155] to [158], McClellan CJ at CL rejected a suggestion of unfairness in circumstances where the tribunal of fact, namely the jury, would be able to assess and evaluate the reliability of the admission having regard to any appropriate directions from the trial judge. This was the approach adopted in both Munce (at [35]) and Lou (at [94]).

5. [207]

   Given the protean nature of s 90, and as the onus of invoking s 90 lies on the accused, (EM v The Queen at [63]) it is necessary to focus on the case for exclusion advanced on behalf of Mr Tarantino.

6. [208]

   The submission extracted above at [155] contends that the case for exclusion under s 90 arises because Mr Tarantino “had no meaningful choice as to whether to speak or not to the police and there is an unacceptable risk of reliability because of the involuntary nature of the admissions”. In oral submissions Ms Rigg contended they were “involuntary in [any] meaningful sense”, and where the “decision to speak … was governed by fear … it removes the guarantee of reliability” that otherwise inures in admissions against interest. [425] This submission seeks to identify the unfairness as being a combination of the “involuntary” nature of the admission and its unreliability as the basis for the invocation of s 90.

7. [209]

   As already noted, under the common law the fact that Mr Tarantino believed he had to confess to the police to protect himself and others by reason of his delusions does not render his confessions involuntary. As noted, the discussion in Swaffield about the fairness discretion contemplated a consideration of wider set of circumstances operating on an accused’s freedom to speak to the police rather than those that just rendered the confession voluntary. However, it was still tied to external factors such as the police conduct and otherwise required a consideration of all the circumstances. A similar approach has been adopted with s 90 (see Gallagher supra; The Queen v Tang [2010] VSC 578 at [34] to [39]). In this case, Mr Tarantino fully understood his right to remain silent. To the extent he was compelled to speak, this was as a result of his own delusions. As submitted by the Crown, save for a consideration of its affect on reliability, Mr Tarantino’s position is no different in substance to an accused who felt a compulsion to speak from guilt or, like the accused in Lou, who thought he was required to do so by “God” (Lou at [9(a)]). Such a form of compulsion does not render its use at a trial “unfair”.

8. [210]

   As for the alleged unreliability of the admissions, neither the common law nor anything in the Evidence Act renders or even suggests that a confession yielded by self‑induced fear is necessarily unreliable. Instead, as noted, the common law, and to an extent s 84, treat confessions yielded through externally induced fear as unreliable “as a class” (Tofilau at [53]), such that they were excluded by the operation of an “imperative rule”. Otherwise, the common law requires an accused to demonstrate the unreliability of the confession if that is relied on to discharge the onus of persuasion that fairness warranted its exclusion. Here, the accused is seeking to demonstrate that in a context where the Court cannot consider the “truth or untruth” of the confession (s 189(3)).

9. [211]

   In this case, there is no reason to doubt the reliability of the evidence of the admissions in the ERISPs and video of the walkthrough in the first sense used by Gleeson CJ and Heydon J in EM. Further, the balance of the evidence of the admissions made is largely consistent with those recordings. In relation to reliability as used in the second sense by their Honours in EM at [73], as noted, such an inquiry is limited by s 189(3) and the psychiatric evidence rises no higher than establishing that, by reason of Mr Tarantino’s delusions and his fears, there is a possibility that his admissions were unreliable. Consistent with Riley, Munce and Lou in those circumstances the use of that evidence of admissions at the trial is not unfair. The jury will be able to assess and evaluate the evidence in light of appropriate submissions and directions. If the approach of Gummow and Hayne JJ in EM is adopted, then the position is weaker so far as the evidence of the admissions that falls within s 85(1) are concerned as any consideration of their reliability is excluded. In circumstances where there was no impropriety of any kind in the manner in which they were obtained, there is no basis for exclusion.

10. [212]

    It follows from the above findings that, insofar as Mr Tarantino confessed to his brothers on 20 November 2011, there is no factual basis for concluding that his delusions about reprisal from the Rebels compelled him to confess. In oral submissions, Ms Rigg contended that the evidence of those confessions should nevertheless be rejected under s 90 because the contents of those calls reveal “…a real intermingling of expressions of fear, expressions of belief of a bounty on the head, of having some connection with North Sydney” the latter being a reference to his delusions about his persecution when lived with Ms Ross in North Sydney. [426]

11. [213]

    This submission is directed to the reliability of the admission of culpability for Ms Diec’s death. As noted, the psychiatric evidence rises no higher than demonstrating the possibility that the admissions were unreliable and otherwise the inquiry into reliability is limited by s 189(3) of the Evidence Act. Again, consistent with Riley, Munce and Lou, the use of admissions at the trial that have that characteristic is not unfair. The jury will be able to assess and evaluate the evidence of the admissions in light of appropriate submissions and directions.