R v Simmons; R v Moore (No 3)

1. [1]

   Kieran Moore (“the accused”) stands charged with an offence of being an accessory after the fact to the murder of Andrew Russell by his co-accused Anthony James Simmons (Mr Simmons). Both accused men have objected to various admissions (or statements alleged to demonstrate a consciousness of guilt) made by them in the course of the police investigation. The objection to the admissions made by the accused Simmons was the subject of a two-week pre-trial voir dire concluding on Tuesday 3 March 2015. On Wednesday 4 March 2015, I ruled that confessional statements made in the course of a police operation of the kind considered by the High Court in Tofilau v The Queen [2007] HCA 39; 231 CLR 396 were admissible against him: R v Simmons; R v Moore (No 2) [2015] NSWSC 143.

2. [2]

   Mr Moore’s objection raises different issues. While there is a degree of common evidence to be led in the trial against both men, and while both objections require consideration of ss 90 and 138 of the Evidence Act 1995 (NSW), the evidence concerning the statements made by the accused is separate and distinct.

3. [3]

   This accused objects to two pieces of evidence. I will deal with them in the chronological sequence in which they arose.

4. [4]

   First, there is an objection to evidence of conversations between the accused and a witness, Jodi Biles. These occurred on 1 and 6 September 2011 at Bloomfield Hospital in Orange where the accused was an involuntary patient. The conversations were recorded covertly by police pursuant to a warrant issued under the Surveillance Devices Act 2007 (NSW). The basis of this objection is that the evidence was unlawfully or improperly obtained (s 138 Evidence Act) and that it is unfair to use the evidence against the accused in view of the circumstances in which the statements were made (s 90). The accused contends that the police misled the judge who issued the warrant authorising the use of the listening devices. The accused also contends that, in the circumstances, it was unfair to use the witness Jodi Biles as an “agent of the state” to elicit admissions from the accused.

5. [5]

   The second objection concerns evidence of admissions made by the accused on 18 January 2013 to police officers in the presence of his step-father. These occurred a few hours after he was arrested on a charge of murder and while he was in custody at Bathurst Police Station. The accused alleges that he was induced to confess by a representation to him that anything he said was “off the record”. He says that he understood that to mean that the things he said would not later be used against him in evidence or be disclosed to his co-accused. The accused relies on s 85 of the Evidence Act 1995 (NSW) (reliability of admissions) and s 90 (discretion to exclude admissions).

6. [6]

   I will refer to the material respectively as “the Biles conversations” and “the 2013 admissions”.

7. [7]

   In June 2009 Andrew Russell, a resident of Bathurst, went missing. He was last seen, at least by a source that is considered by the Crown to be reliable, on 2 June 2009. His family and friends have not seen him since that date. A witness, Michael O’Neill, saw a man near the intersection of Littlebourne Street and the Sydney Road (Great Western Highway) in Kelso at around 10:30 pm and then again a short (unspecified) time later. The man was in the middle of the highway and Mr O’Neill was concerned and spoke to him. He reported the incident to Bathurst Police. A few weeks later, after Mr Russell was reported missing, Mr O’Neill was shown a photograph and said he was “quite confident” that it depicted the same man.

8. [8]

   Suspicion attached fairly quickly to the accused Simmons because there was known animosity between him and Mr Russell. It is alleged (and, based on his plea on arraignment, not disputed) that on 20-21 March 2009, Simmons assaulted Mr Russell. However, while Simmons seemed to be the prime suspect, orthodox police investigations failed to uncover any cogent or admissible evidence against him. There was a good deal of rumour and some evidence of things that he had said, but no reliable evidence of real substance was uncovered between June 2009 and September 2012.

9. [9]

   The accused (Moore) was a close friend and associate of Mr Simmons and the rumour mill suggested that he too was involved, either as an accomplice in the murder or in assisting with the disposal of the body.

10. [10]

    Between September 2012 and January 2013, the police employed a sophisticated undercover operation targeting Simmons. The details of that operation are set out in some detail in my judgment admitting the evidence of Simmons’ admissions: R v Simmons; R v Moore (No 2) at [9]-[42]. The admissions made are detailed at [84]-[97]. In short, Simmons asserted that he and the accused had come upon Mr Russell at a bridge on the Sydney Road outside Bathurst, had taken him by car to a cliff near the town of Sofala and pushed him off the cliff. They retrieved the victim’s body and buried it in a mineshaft in another location near Sofala. Mr Simmons took the undercover police to the location where they buried the body. No mineshaft or human remains have been found in that area in spite of a thorough search. It is clear from the submissions on the voir dire that Mr Simmons’ case is that the admissions are untrue and that he was boasting or big noting himself for reasons of no present relevance.

11. [11]

    The admissions made by Simmons would suggest that Mr Moore is guilty of murder. He was part of the joint enterprise of abducting Mr Russell and played a part in pushing him off the cliff. Of course, those admissions are not admissible against the accused. The Crown case against the accused Moore is that Simmons killed Mr Russell and that the accused assisted in disposing of the corpse.

12. [12]

    The Biles conversations occurred in September 2011. The accused was not thereafter arrested or charged. Those conversations contained statements that the prosecution relies on as evidence of a consciousness of guilt. No direct admissions were made. The police did not charge the accused and (as far as I am aware) did not attempt to interview him in the aftermath of those conversations. Simmons made his admissions in the course of the covert operation on 9, 15 and 16 January 2013. Simmons was arrested in Pyrmont immediately after the conversation of 16 January 2013. Moore was arrested in Walmer Park in Bathurst two days later on 18 January 2013. He was interviewed and indicated that he wished to exercise his right to silence (Ex VD 1, Tab 136). He then spoke to his step-father (John Fazio) and thereafter made the 2013 admissions.

13. [13]

    The present voir dire commenced on Tuesday 3 March 2015 at the conclusion of the voir dire into Mr Simmons’ admissions. The exhibits continued and so, technically, all of the evidence admitted in the Simmons’ voir dire is before me. In particular, the entire prosecution brief (13 volumes, Ex VD 1) is before me. However, the parties agreed that the only parts of Ex VD 1 that are relevant to the present issue are the following:

14. [14]

    Neither party relied on exhibits VD 2 – VD 8 (tendered in the Simmons voir dire). The following additional exhibits were tendered:

15. [15]

    Evidence was given on the voir dire by Jodi Biles, Detectives Justin Hadley and Andrew Maclean and by the accused.

16. [16]

    Submissions were received in writing (MFI 6 and 7) and orally on 4-5 March 2015. There were further brief submissions on 9 March 2015. By that stage each of the accused had made an application under s 132 Criminal Procedure Act 1986 (NSW) for a trial by Judge alone and submissions were being made on that issue. The evidence was re-opened on 10 March 2015 to allow for the tender of Ex VD 15 (the Court Attendance Notice & and Facts Sheet relating to Ms Biles). This judgment was prepared in that context and delivered later on 10 March 2015.

17. [17]

    Apart from the evidence led to establish Mr Simmons’ guilt (necessary for proof of the accessory charge), the evidence against the accused is relatively confined. It includes the evidence concerning the disappearance of Mr Russell including when and where he was last seen, some statements concerning the movement of the accused men at relevant times, admissions made to a witness Luke Salter, the Biles conversations and the 2013 admissions.

18. [18]

    Luke Salter provided a statement (Ex VD 1, Tab 16) that he had a conversation with the accused in which the accused made admissions to assisting Simmons in moving a car and disposing of the corpse. According to Mr Salter, the accused said to him that “Sofala … is a good place to bury a body”. He said that “they took the body to Sofala”. The interview continued:

19. [19]

    In a recorded interview dated 29 August 2011 (Ex VD 1, Tab 5), Jodi Biles agreed that she had approached the police with additional information. The new information was enunciated (at Q 44) as:

20. [20]

    The Biles conversations, which I will set out in more detail below, do not contain direct admissions. However, the prosecution seeks to present them as evidence of consciousness of guilt in that they show an awareness of matters that suggest the accused was involved in the matter and that he was concerned that certain witnesses (who might implicate Simmons) would remain “staunch”.

21. [21]

    The 2013 admissions were not recorded and there are two versions of precisely what was said. The first is the account of the admissions given by the accused’s step-father, John Fazio. The second is the account given by the detectives. There is no significant difference between those accounts. On either account, what the accused said constituted a confession of guilt. He said that Simmons had bashed Mr Russell and that he (the accused) had assisted to move the body to bush-land behind “The Good Guys” near the Sydney Road outside Bathurst.

22. [22]

    The objection to the Biles conversations involves a consideration of the circumstances in which the warrant was obtained and an analysis of the role of Jodi Biles in the conversations on 1 and 6 September 2011.

23. [23]

    Before turning to those questions I should describe the conversations themselves and identify the parts that the Crown submits have some capacity rationally to affect the question of whether the accused was involved in the disappearance of Mr Russell or any other fact in issue in the trial.

The conversation on 1 September 2011

1. [24]

   Ms Biles arrived at Bloomfield at around 6:30 pm on 1 September 2011. The conversation she had with the accused lasted for a little under an hour and the transcript consists of 35 pages (Ex VD 1, Tab 6). No admissions were made by the accused and he repeatedly told Ms Biles that Simmons did not commit the murder. He said that he and Simmons said certain things to scare or impress people but the details of this are somewhat non-specific. He said he was in Bloomfield because he was “mental” and that he would get out on 27 October, his birthday. Ms Biles repeatedly introduced the topic, telling the accused that Simmons had confessed to her. The accused said (p 5) “I know for a fact every time that I was with him he never did it because there was just, he was startin’ to get it in his head that he was, that he did do it”. He said that Simmons [brain] was “fried”. The parties agree that this was a reference to Simmons taking amphetamine or methylamphetamine.

2. [25]

   The conversation is riddled with inconsistency. A good example is where the accused said (p 7) “I don’t think he’s got it in him” but then immediately said:

3. [26]

   The conversation went on (at p 7-8):

4. [27]

   The Crown Prosecutor relies on comments such as “no body … no evidence” as indicating a consciousness of guilt. He took me to the parts of the conversation that he submits may bear upon the issues at the trial (T 357-365).

5. [28]

   The conversation is difficult to comprehend at times. However, there is a recurring theme whereby the accused denies that Simmons committed the crime while Ms Biles is saying that Simmons confessed to her. The accused claims that they (he and Simmons) made up stories and told various people that they were involved.

6. [29]

   There are passages in the conversation of 1 September 2011 capable of being used as evidence of a consciousness of guilt. It has not been submitted by Mr Stratton SC that the evidence is not relevant or that it lacks probative value.

The conversation on 6 September 2011

1. [30]

   Ms Biles returned to Bloomfield at the direction or invitation of the police on 6 September 2011. Again, she was wearing a listening device. She arrived at around 2:17 pm but it took some time before she spoke with the accused because he had been moved to a different part of the Hospital (“Poplars”).

2. [31]

   The conversation begins with Ms Biles saying that she had been to see Simmons and the accused asking “has he got that shit out of his head yet or not?”. There is then a discussion about Ms Biles’ legal issues, the substance of which is unclear to me, but she said that “I bought myself like 2 weeks or something” (Ex VD 1, Tab 7, p 5). There is then a discussion about the accused’s situation at Bloomfield. He says that Poplars gives him more freedom and that he “got ordered till the 27th of October”. The parties agree, based on evidence within the Hospital file, that the accused was an “involuntary patient” and that he was not due to be released until 27 October 2011.

3. [32]

   The relevant part of the conversation commences when Ms Biles introduces the subject by saying “Do you reckon Jakey would still be staunch, Jakey Peters?” (p 11). The conversation goes on:

4. [33]

   Other potentially relevant parts of the conversation appear to be (at p 15):

5. [34]

   At p 18:

6. [35]

   At p 22-23:

Relevance and probative value of the evidence

1. [36]

   The Crown accepts that none of this evidence is capable, by itself, of establishing the accused’s guilt. After the conversations, no attempt was made by police to interview the accused and he was not arrested. However, in combination with other evidence, the evidence is capable of supporting an inference that the accused had knowledge of the crime and the surrounding circumstances. References in the conversations to Corey Maguire and to Jakob Peters may dovetail with statements of those witnesses (Ex VD 1, Tabs 57, 90-91).

2. [37]

   For example, Corey Maguire (Tab 91) told police on 10 August 2009 that he was not in the company of Tony Simmons on the night but in a later statement (3 September 2010) he said that he used Simmons’ white Excel to drop Simmons out to the Sydney Road to a house near View Street. This does not directly impact on the accused but the fact that he engaged in a discussion about Corey Maguire in the context of the Biles conversations suggests, at least, some knowledge on his part of Simmons’ involvement.

3. [38]

   Jakob Peters (Tab 57) told police about going driving with the accused and Simmons “one night” in “Kieran’s green Commodore” (p 15). He said he was dropped of “near the fruit shop on Sydney Road” (p 17), got changed and then got a lift to Havannah Street (p 18). He said that he could not remember driving past Andrew Russell and did not remember any discussion about Andrew Russell (p 19). When asked whether this was before or after the disappearance of Mr Russell he said “I wouldn’t have a clue” (p 15). There is nothing in Mr Peter’s statement about the accused making any admission to him although he says that “I remember them (Simmons and Jodi Biles) saying that they picked [Andrew Russell] up one time and they give him a lift” (p 23).

4. [39]

   Just how this fits in with the narrative is unclear to me but, as I have said, it provides some context to the conversation with Ms Biles about whether Mr Peters would “stay staunch” and the reference thereafter to Corey Maguire.

5. [40]

   The most probative part of the evidence may be the fact that the accused agreed that he and Simmons had made up stories about the disappearance of Mr Russell.

6. [41]

   As I have said, Mr Stratton SC does not submit that the evidence is not relevant. Nor does he submit that the probative value is so slight that the evidence should be excluded in the exercise of the discretion under s 135 or 137.

The application for the warrant and the factual dispute that arises

1. [42]

   The application for the warrant was made to Johnson J on 1 September 2011. It was supported by an affidavit of Detective Senior Constable Hadley (Ex VD 1, Tab 154). Both Mr Hadley and Detective Senior Constable Maclean gave evidence that they worked on the affidavit together. Relevantly, the affidavit said that the police proposed to use “Source 938907” (that is Jodi Biles) to meet with Mr Moore at a “designated location”. No further information about the location was included in the affidavit. In particular, the affidavit did not disclose that the accused was at that time in Bloomfield Hospital, or that he was in a facility generally known to be a psychiatric hospital.

2. [43]

   In the course of the voir dire, Detectives Maclean and Hadley both said that the first time that they became aware that the accused was in Bloomfield Hospital was when Jodi Biles told them as much on 1 September 2011. In sharp contradistinction, Jodi Biles said that she learned of the accused’s whereabouts when police told her a couple of days prior to 1 September 2011.

3. [44]

   Detective Maclean’s evidence on the voir dire included the following (T 278-280):

4. [45]

   Detective Hadley gave evidence (T 264):

5. [46]

   In cross-examination he gave the following evidence (T 264):

6. [47]

   Detective Hadley also gave evidence (T 268) that had he been aware that the accused was in a psychiatric hospital he would have “definitely made mention of that” because “that would have been prudent information to put in the affidavit”. He said (T 278) that he used the expression “designated location” in the affidavit because “[t]hat's always to my knowledge and my understanding, every time I've used it that's the wording we use, no matter what warrant it is”.

7. [48]

   Jodi Biles’ evidence on this subject was as follows (T 251-252):

8. [49]

   As a matter of known fact, Ms Biles did meet with the detectives “a couple of days before” 1 September 2011. On 29 August 2011, she made a lengthy interview with the police (Ex VD 1, Tab 5). The detectives denied that there had been any conversation with Ms Biles on 29 August 2011 about Mr Moore being in Bloomfield. Mr Maclean said (T 282) that he thought the interview was “a little earlier than [29 August 2011]”.

9. [50]

   After the interview on 29 August 2011, there was a discussion in which Ms Biles agreed to approach the accused wearing a listening device and attempt to get him to talk about the disappearance of Mr Russell. Apart from what appears in the statements and affidavit, it seems that no record was made of this conversation.

10. [51]

    As to the events of 1 September 2011 themselves, the warrant was issued at around 4:30 pm or, at least, that is when it became valid according to its terms. The transcript of the conversation indicates that it was commenced at 6:28 pm on Thursday, 1 September 2011. The evidence (T 283, line 18) is that it takes around 40 minutes to drive from Bathurst to Orange.

11. [52]

    Detective Maclean recorded the events on the day in his statement at (Ex VD 1, Tab 108) [64]-[65]:

12. [53]

    Detective Hadley’s statement (Ex VD 1, Tab 104) provides a similar account:

13. [54]

    Detective Maclean also gave the following evidence (T 281):

Resolution of the factual dispute

1. [55]

   I have set out this evidence in detail because I must resolve the sharp conflict between the evidence of the detectives and the evidence of Ms Biles. Mr Stratton SC submits that I should accept the evidence of Ms Biles and reject the evidence of the police officers.

2. [56]

   The Crown Prosecutor says that the evidence of Ms Biles is “equivocal and needs to be carefully examined before [I] can place any reliance upon it” because it “came out” through leading questions. No application was made by the Crown to cross-examine Ms Biles and no challenge was made to her evidence. No objection was taken to the supposedly “leading” questions asked in cross-examination: cf s 42 Evidence Act 1995 (NSW). Ms Biles is not a witness in a class that ordinarily attracts the necessity for close scrutiny. In spite of the fact that no clear submission was made that the Briginshaw standard should apply, it seemed to be implicit in the Crown’s submission (T 353):

3. [57]

   I am not aware of any authority that places the evidence of police officers in some special category. However, I accept that the suggestion that the officers deliberately or recklessly failed to disclose a significant piece of information in applying to a Supreme Court judge for a warrant is an allegation of significant impropriety. Accordingly, I would need to be satisfied by clear and cogent evidence that the police knew where Mr Moore was and failed to disclose it in the affidavit: cf Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at [68]; Asim v Penrose & anor [2010] NSWCA 366. I should be wary of "inexact proofs, indefinite testimony, or indirect inferences": Briginshaw v Briginshaw at 361-362. Having said that, the standard of proof remains on the balance of probabilities. Section 142 Evidence Act 1995 (NSW) provides:

4. [58]

   Sub-section (2)(a) may be a statutory reminder or formulation of the principles enunciated in Briginshaw in that it requires me, in determining whether the facts are established on balance, to take into account the gravity of the matters alleged in relation to the question.

5. [59]

   As I have said in a different context, whether these matters create a different standard of proof is questionable in the light of decisions such as Neat Holding Pty Ltd v Karajan Holding Pty Ltd [1992] HCA 66; 67 ALJR 170: see Pallier v Solomons (No 2) [2014] NSWSC 1524.

6. [60]

   I approach the matter in accordance with s 142 and on the basis that what is alleged is a matter of real gravity.

7. [61]

   To summarise the evidence:

8. [62]

   While I find the timing to be fairly tight, I accept the Crown Prosecutor’s submission that I cannot draw any clear inference from the timing of events. I do find the absence of any clear plan or investigation as to where Mr Moore actually was before meeting with Ms Biles after 4:30 pm to be, at least, peculiar. Detective Hadley said (T 267) “I was ‑ we were under the impression we'd be going to his home address, or Ms Biles would be going to his home address.” However, there is no evidence that the police knew that the accused was at home, or even in Bathurst, prior to meeting with Ms Biles.

9. [63]

   There are other conflicts in the evidence between Ms Biles and the detectives. Ms Biles says that the police offered her assistance in various ways. She says that they offered her money, accommodation, participation in the witness protection programme and assistance in obtaining custody of her children. It was also submitted (T 269) that the police may have suggested that they could assist with a cannabis charge that she was facing. However, Detective Hadley said (T 269) that he believed that the charge arose after the “deployment”, that is after 1 September 2011. No further questions were asked about that issue and no evidence was led to establish one way or another when the cannabis charge was laid. When I asked about the issue in the course of the Crown Prosecutor’s submissions I was told that Ms Biles was charged on 12 September 2011 but the Crown could not tell me when she was arrested. The state of the evidence was unsatisfactory and I raised the matter again before reaching a final conclusion and delivering judgment. By consent, the evidence was re-opened and the Court Attendance Notice and Facts Sheet was tendered (Ex VD 15). This shows that the cannabis charge arose on 12 September 2011. Ms Biles was arrested and charged on that date. This places significant doubt over the following evidence given by Ms Biles (T 254):

10. [64]

    Both officers denied that they offered Ms Biles anything, although Detective Hadley (T 269) agreed that Ms Biles had raised difficulties she was having with Housing NSW and Detective Maclean (T 281) agreed that there was discussion about “Ms Biles being offered assistance to relocate to a different town”. Both officers denied the suggestion that she had talked about obtaining assistance to move to somewhere near the beach or that she was offered money.

11. [65]

    The evidence is silent on just what motivated Ms Biles to agree to wear the listening device. There is evidence that she had some animosity towards Mr Moore but that hardly provides her with a motive to involve herself in a police operation in which she wore a listening device.

12. [66]

    While Ms Biles was an unsophisticated witness, I found her evidence to be generally responsive and uncomplicated. I do not accept that the evidence was somehow weakened by the fact that leading questions were asked. The question that was criticised as leading - “Police told you that he was at Bloomfield Hospital?” – was plainly a clarification and confirmation of the evidence that had just been given. As I watched the exchange, it was clear that Ms Biles was saying that one of the detectives told her that the accused was at Bloomfield Hospital. I do not accept that the evidence of Ms Biles was equivocal. I reject the Crown submissions concerning the use of the word “any” in the question “At any stage, was there a discussion about where he was, at that time?” Again, watching and listening to the flow of the examination, there was no ambiguity and it was clear that Ms Biles was talking about the conversation on 29 August 2011. Further, as I asked the Crown Prosecutor in the course of submissions, if it was not on 29 August 2011, when was it? The conflict of substance between the two versions is whether it was Ms Biles or the detectives who first knew that the accused was in Bloomfield.

13. [67]

    A further submission made by the Crown said to support the proposition that it was Ms Biles, rather than the police, who knew that the accused was at Bloomfield came from one of the things she said in the course of the recorded conversation with the accused (Ex VD 1, Tab 6). The Crown relies on the fact that Ms Biles told the accused (p 23) “I’ve been looking for you for two weeks man”. I can take nothing from that evidence. That comment was made in the context of Ms Biles telling the accused that she was visiting him at the request of Mr Simmons. That was untrue. Earlier the accused had asked her who brought her over from Bathurst and she told him “I borrowed a car off my uncle”. That was also untrue. In the circumstances, she was unlikely to tell the accused that the police brought her over and that the police told her that he was in Bloomfield. In the second conversation she again lied to the accused about how she had travelled from Bathurst to Orange to visit him (Ex VD 1, Tab 7, p 5).

14. [68]

    On the other hand, both police gave evidence that they did not know that the accused was in Bloomfield Hospital until the day of deployment. Neither resiled from that testimony in cross-examination.

15. [69]

    Further, Ms Biles’ evidence that the police offered her assistance with the cannabis charge on 29 August 2011 cannot be correct in circumstances where she was not arrested or charged with that offence until 12 September 2011. It may be that Ms Biles was mistaken as to this aspect but it shows that her reliability on matters of detail must be approached with caution.

16. [70]

    The resolution of this factual dispute is difficult. It is made more so by the absence of any record being kept by the police. There was nothing in the demeanour of the three relevant witnesses that causes me to believe that I can tell by observing them who is telling the truth or who is giving accurate evidence. The observations of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] are apposite:

17. [71]

    There is little objective evidence to establish when the police became aware of the fact that the accused was in Bloomfield Hospital. As I said, it seems that no notes or record was kept of the conversation with Ms Biles. The one matter that is established independently is that Ms Biles’ account of having the cannabis charge “hanging over her head” is not reliable. While I find the failure of the police to have any real plan as to the “deployment” of Ms Biles surprising, that is an insufficient basis upon which to make the adverse finding that is sought.

18. [72]

    In the end, the matter must be resolved by the correct application of the onus of proof. I find that the accused has not discharged the onus of establishing on balance that the two detectives knew that the accused was in Bloomfield private hospital before making the application for the warrant.

The consequence of that factual finding and s 138 Evidence Act

1. [73]

   Once it is accepted that the accused has failed to discharge the onus to establish that the police knew that the accused was in Bloomfield Hospital, it follows that I am not satisfied that the evidence was obtained improperly or in contravention of the Australian law. There can be no suggestion that the police deliberately or recklessly misled the issuing justice.

2. [74]

   The warrant is valid on its face and it cannot be subject to a collateral attack on the basis, for example, that relevant evidence is now known that may have caused the Judge not to issue the warrant. That is, as the Crown Prosecutor submitted, an impermissible inquiry.

3. [75]

   Although it is not strictly necessary to do so, I should make it clear that I do not accept parts of the Crown Prosecutor’s submissions on this issue. For example, the following exchange occurred during the Crown’s submissions (T 344):

4. [76]

   I do not accept that the passages in Ousley v The Queen [1997] HCA 49; 192 CLR 69 to which I was taken support that approach (see Toohey J at 80, Gaudron J at 85 and McHugh J at 100, 102 and 103). In fact, McHugh J implicitly approved the following passage from Flanagan v Australian Federal Police [1996] FCA 16; 134 ALR 495, where the Federal Court declined to intervene in collateral proceedings but found at 545:

5. [77]

   The Crown Prosecutor later accepted that if an allegation of perjury in the affidavit for the warrant was established, the Court would “be entitled to take the view that it was improperly obtained” (T 348).

6. [78]

   However, it is unnecessary further to consider this issue in the light of the factual finding that I have made.

7. [79]

   No submission was made that it was improper (for the purpose of s 138) for the police to carry out the deployment of Ms Biles once they became aware that the accused was in Bloomfield Hospital.

8. [80]

   For those reasons, I am not satisfied that the evidence should be excluded pursuant to s 138 Evidence Act 1995 (NSW).

The unfairness discretion and s 90 Evidence Act

1. [81]

   While the Biles conversations are not direct admissions, it is accepted by the Crown that s 90 applies to them as the statements are to be used as statements against interest or implied admissions. See, the definition of “admission” in the Dictionary to the Evidence Act; R v Horton (1998) 104 A Crim R 306; R v Esposito (1998) 105 A Crim R 27 at 42.

2. [82]

   I considered the operation of s 90 in some detail in the course of my earlier judgment and I will not repeat my analysis of the relevant principles: R v Simmons; R v Moore (No 2) [2015] NSWSC 143. That analysis informs my assessment of the present voir dire and, where necessary, it should be incorporated into this judgment.

3. [83]

   However, I remind myself that it has been held that the probative value of the evidence has “little significance in the exercise of the discretion under section 90”: see R v Em [2003] NSWCCA 374 at [110], cf R v Phan [2001] NSWCCA 29; 53 NSWLR 480. The evidence is relevant. Its weight, probative value and reliability are matters for determination of the tribunal of fact. It is admissible unless the accused establishes that it should be excluded in the exercise of the discretion under s 90.

4. [84]

   Mr Stratton SC submits that the circumstances in which the “admissions” were made makes it unfair to use them against the accused. There are various components to this. Firstly, the accused relies on his status as an involuntary patient at a psychiatric hospital. Secondly, he relies on his psychiatric state at the time of the conversation with Ms Biles. Third, he relies on the fact that the admissions were elicited by Ms Biles who was acting as an agent of the state at the time.

5. [85]

   Mr Stratton SC pointed to a number of entries in the Bloomfield Hospital records (Ex VD 14) concerning the accused’s mental state. These included a number of notes and comments that establish that at the time of his admission and for a period thereafter he was in a psychotic state. He was speaking in “numbers and riddles” and was diagnosed with “acute relapse of psychosis”. Many entries in the days following his admission described him in terms such as “psychotic”, “acutely delusional, incoherent in thought form and speech”, “paranoid and grandiose”. He was also described as aggressive and dangerous, both to himself and to others. He required four police officers to escort him to Bloomfield.

6. [86]

   However, by the time that he was visited by Ms Biles, his condition had improved significantly and there was a plan to move him to a less secure part of the hospital (“Poplars”). In fact, this occurred between the visit on 1 September 2011 and the visit on 6 September 2011. On 31 August 2011 he was described as “bright and reactive”. On 1 September 2011 Dr Chau (Psychiatrist) made a note:

7. [87]

   I accept the Crown Prosecutor’s submission that by, 1 September 2011, the accused’s psychiatric state had settled and cannot, of itself, justify a conclusion that the use of the evidence obtained by Ms Biles is unfair.

8. [88]

   On the other hand, the accused remained an involuntary patient. Ms Biles gave evidence that the accused was not himself and that he was “different mentally” when she visited him (T 249-250, 259).

9. [89]

   It is also noted that, once the police became aware shortly after 4:30 pm that the accused was in Bloomfield, they made no investigation into the state of the accused’s mental health. They simply determined to take Ms Biles to Bloomfield and to deploy her without any further investigation. It was purely fortuitous that the accused’s symptoms of acute psychosis had improved. I have read the thorough analysis of somewhat similar cases by Bellew J in R v Gallagher [2013] NSWSC 1102 at [223]-[242] and note that R v Gallagher was a more extreme case.

10. [90]

    The helpful observations of McColl JA and Latham J in Pavitt v The Queen [2007] NSWCCA 88; 169 A Crim R 452 are relevant to the admissibility of a covertly recorded conversation in circumstances where the police engage a witness or complainant to speak to a suspect while the conversation is being covertly recorded by listening device (at [70]):

11. [91]

    The Crown Prosecutor accepted that Ms Biles was acting as an agent of the state on 1 and 6 September 2011 (T 254). That concession was justified in the circumstances. There was no evidence that Ms Biles would otherwise have gone to visit the accused. The two were not friends and their only connection was through Mr Simmons. The nature of the conversation strongly supports the proposition that she was acting at the behest of the police.

12. [92]

    The question of whether the things said by the accused were elicited, in the sense contemplated in Pavitt, is not straightforward. I discussed the meaning of “eliciting” in this context in my earlier judgment. There is no doubt that the accused could have refused to speak to Ms Biles. However, a careful examination of the transcript of both conversations leads me to the conclusion that Ms Biles did elicit those responses relied upon by the Crown. The accused’s repeated denials that Simmons was involved were constantly met with statements to the effect that Simmons had told her differently and that Simmons had said that they “did it for her”. She repeatedly re-introduced the subject matter and did so quite relentlessly. She did not accept his denials. The conversation was the “functional equivalent of an interrogation”.

13. [93]

    The accused had not exercised his right to silence prior to these conversations. On the other hand, counsel agreed that he had never been advised of that right and the police had not previously spoken to him about the matter. When police arrested him in 2013, he exercised his right to silence.

14. [94]

    As I said in my earlier judgment allowing the admissions made by Simmons, the non-exhaustive list of criteria provided by their Honours in Pavitt cannot be allowed to distract from the question posed by the statutory language of s 90. That question is whether it would be unfair to use the “admissions” in view of the circumstances in which they were made. The accused bears the onus of establishing unfairness and in persuading me that the discretion should be exercised in his favour.

15. [95]

    I have concluded that I should exercise my discretion under s 90 to exclude the content of the conversations. I am of the opinion that it would be unfair to use them given the circumstances in which they were made. The matters that lead me to those conclusions include:

16. [96]

    In the exercise of the discretion under s 90 I rule that the evidence is inadmissible.

17. [97]

    It is common ground that on 18 January 2013 the police arrested the accused for the murder of Andrew Russell. The accused gave evidence that he was not aware that he had been arrested for murder (T 286-287). However, evidence of what he said whilst in custody establishes that he was aware that he was arrested for murder. The custody management record supports that conclusion (Ex VD 1, Tab 150) and in the course of an electronically recorded interview commencing at 12:09 pm on 18 January 2013, the following is recorded:

18. [98]

    It is also common ground that the police allowed the accused to speak to his stepfather John Fazio and other relatives.

19. [99]

    In the interview the accused indicated that he wished to exercise his right to silence (Ex VD 1, Tab 136, Q 23). Some time after the recorded interview, the accused made an admission, the effect of which was that Simmons had bashed the deceased (and killed him) and that the accused assisted Simmons to move the body.

20. [100]

    The objection to the evidence of these admissions is based on the circumstances in which that admission was made and what prompted it. The accused says that he was induced to make the admissions by a promise that what he said would not be used against him. The accused relies on ss 85 and 90 of the Evidence Act 1995 (NSW). The prosecution says that no such inducement was offered.

The admissions

1. [101]

   Detective Fawkner’s statement dated 13 March 2013 sets out the following conversation (Ex VD 1, Tab 102, para 54-55):

2. [102]

   Detective Hadley recounts the same conversation (Ex VD 1, Tab 104, para 39).

3. [103]

   Mr Fazio provided the following version of the conversation (Ex VD 1, Tab 39, Q 160):

What was said before the admission was made?

1. [104]

   The accused gave evidence on the voir dire and said that he was offered an “off the record conversation”. He said, without much certainty, that he thought it was Detective Hadley who “raised the topic of an off the record conversation”. He gave the following evidence (T 286):

2. [105]

   The accused was cross-examined as to precisely when this conversation occurred and he gave a variety of answers to those questions. For example, he said at one stage “they offered it to me all day.” (T 292) Earlier, he said that the matter was raised in the presence of his stepfather (T 285). He was cross-examined (T 297-298):

3. [106]

   The accused also gave evidence (T 294):

4. [107]

   The tenor of the cross-examination was that the detectives did not tell the accused that he could have an off the record conversation with them.

5. [108]

   Detective Hadley gave the following evidence in committal proceedings in March 2014 (Ex VD 12, p 107):

6. [109]

   Detective Fawkner’s evidence at the committal (Ex VD 11, pp 61-62) was:

7. [110]

   The accused’s stepfather Mr Fazio also gave evidence at the committal hearing (Ex VD 10 p 42):

8. [111]

   Later he said (at p 50):

9. [112]

   As Mr Stratton SC submitted, three of the four people present (that is, the accused, Mr Fazio and Detective Hadley) recalled that one of the police officers said something to the effect that the accused could speak “off the record”. Detective Hadley could not remember the exact words. Detective Fawkner denied using those words but seemed to say that the accused may have done so.

10. [113]

    In making a factual finding as to what was said, I am particularly persuaded by the recorded interview between Mr Fazio and Detective Fawkner that took place five days after the impugned admission. This was the conversation to which Detective Fawkner was taken at the committal hearing.

11. [114]

    On 23 January 2013 Mr Fazio attended the Bathurst Police Station and made a statement. The statement was recorded electronically and made by way of question and answer with Detective Fawkner. The important part of that interview for present purposes is the following (Ex VD 1, Vol 1, Tab 39):

12. [115]

    Mr Fazio then (Q 160) set out his memory of what his step-son said. This is set out above (at [99]). It is in very similar terms to the conversation recalled by the detectives in their statements. It is an account which is against his step-son’s interest. It establishes in my mind the fact that Mr Fazio was an honest and reliable witness. Mr Fazio was not cross-examined on the voir dire although he gave evidence at the committal hearing.

13. [116]

    Mr Fawkner said nothing during the course of the interview with Mr Fazio to indicate any disagreement with the suggestion that he had offered the accused an “off-record” conversation. I do not accept the Crown Prosecutor’s submission that it would have been improper for him to clarify or correct the record. It would not have been necessary to engage in impermissible cross-examination of the witness for him to do so.

14. [117]

    Detective Fawkner’s Duty Book (Ex VD 1, Tab 103) does not record any exchange where words to the effect that the conversation was to be off the record were used. It does record an earlier conversation that took place at Walmer Park in which the accused said that he knew nothing about the murder of Andrew Russell. Based on the custody management record (Ex VD 1, Tab 150) that conversation must have taken place at around 8:15 am. The custody management record says that the accused arrived at Bathurst Police Station at around 8:25 am. The Duty Book also records a “heated discussion” between the accused and his mother (Tracey Moore). According to the record in the Duty Book, Ms Moore told the detectives that the accused had told her that he had nothing to do with the murder but that she believed he was lying to her.

15. [118]

    The Custody Manager, Sgt Spice, did not give evidence on the voir dire. His statement (Ex VD 1, Tab 149) records that Mr Fazio spoke to the accused while the accused was having a cigarette. (From other evidence, this was in a garage attached to the Police Station). Mr Fazio then asked for the detectives. Sgt Spice then relayed the request. Sgt Spice was not present during any of the relevant conversations.

16. [119]

    Mr Fazio said that in the conversation he had with the accused in the garage he told the accused that he should tell the police “what he knows … everything you know, everything you know”. At the committal hearing he said that he told the accused (Ex VD 10, p 41):

17. [120]

    The accused gave evidence (T 291):

Factual findings based on the evidence

1. [121]

   The accused gave inconsistent evidence on various issues. For example, he said that he could not recall meeting the custody manager (Sgt Spice) but went on to agree with a series of propositions about what was said by the custody manager. He initially said that he could not recall what he said to Sgt Spice about speaking to the detectives again (T 292) but later testified that he said “Get the detectives. I’ll have the off the record conversation” (T 293). Sgt Spice said that it was Mr Fazio (not the accused) who requested to see the detectives again and I accept that is more likely to be what happened. I have also referred to the fact that the accused said that he could not remember being arrested for murder and gave different accounts as to when the “off the record” conversation was offered to him. I have taken those, and other, inconsistencies into account in assessing his credibility. On the whole, however, I accept the accused’s evidence. His evidence of there being a discussion about an “off the record” conversation receives support from the evidence of Mr Fazio and, to a degree, from the evidence of Detective Hadley.

2. [122]

   Having considered the whole of the evidence closely, I am satisfied on the balance of probabilities that at least one of the police officers, probably Detective Fawkner, said words to the effect that the accused could speak to the police “off the record” or “off-record” immediately before the impugned confession was made.

3. [123]

   I am satisfied that this was said at least once (in the presence of Mr Fazio) and, more likely than not, earlier in the day as well. The latter finding is based on the accused’s evidence (“they were offering it to me all day”) and on the meeting at Walmer Park, the details of which are not recorded in the statements of the detectives although some detail is contained in the Duty Book. I also accept Mr Fazio’s clear evidence that an “off-record” conversation was mentioned almost immediately upon the detectives returning. That is unlikely to have occurred unless there was some earlier discussion of the possibility.

4. [124]

   I am also satisfied that the accused understood that what he said would not be recorded and that it would not be used against him or disclosed to the co-accused Simmons. I do not accept that what was conveyed was no more than an indication that the conversation would not be recorded electronically (or in writing). There is nothing in the police statements, custody management record or Detective Fawkner’s duty book of a conversation where the accused was offered a discussion that would not be recorded.

5. [125]

   I am satisfied that the accused denied any involvement when first spoken to by police at Walmer Park and again when he spoke to his mother at the police station. I accept that there was a heated conversation with his mother and that, later, the accused was told by his step-father that he should tell the police what he knew and had “to look after yourself”.

6. [126]

   I am satisfied that the accused exercised his right to silence when interviewed by police electronically.

Relevant legal principles

1. [127]

   Mr Stratton SC took me to a number of authorities concerning the admissibility of statements made after a suspect was told that the things they said would be and remain “off the record”. The issue arose in The Queen v Noakes (1986) 42 SASR 489. King CJ said this (at 492-493):

2. [128]

   A similar approach was taken in Walsh v The Queen [1996] TASSC 59 when Cox CJ said at [9]:

3. [129]

   His Honour cited Noakes and the Queensland case of R v Plotzki (1972) QDR 379.

4. [130]

   In R v Chadd [2006] NZCA 449, the New Zealand Court of Appeal appeared (obiter) to take a similar approach at [24]:

5. [131]

   The only New South Wales case to which I was taken has a storeyed history. That is the case of Sophear Em. That case made its way to the High Court in relation to a different, although superficially similar, issue. There were two trials in this Court and two appeals to the New South Wales Court of Criminal Appeal.

6. [132]

   The issue that arises in the present case was not subject to the appeal to the High Court: Em v The Queen [2007] HCA 46; 232 CLR 67. That appeal concerned a situation where the police covertly recorded admissions made by a suspect who had previously indicated that he did not wish to have any conversation recorded. The accused was told that he did not have to speak but he was not told that what he said was being recorded and that it might later be used in evidence. The meeting took place in a park. The accused was under the misapprehension that what he was saying was not being recorded and would not be used against him. The High Court held that recording the conversation in this way was not relevantly unfair for the purpose of s 90 Evidence Act 1995 (NSW): per Gleeson CJ, Heydon, Gummow and Hayne JJ; Kirby J dissenting.

7. [133]

   The High Court was not called upon to consider the correctness of a ruling made by the trial Judge (James J) that another admission, induced by a representation that implied that the conversation “would not be used to his disadvantage” was inadmissible. (See the judgment of Gummow and Hayne JJ at [123]).

8. [134]

   That ruling was referred to by the Court of Criminal Appeal: Em v R [2006] NSWCCA 336. Giles JA said at [51]-[52]:

9. [135]

   Giles JA went on to say at [77]:

10. [136]

    In an earlier appeal (R v Sophear Em [2003] NSWCCA 374), Howie J referred to the same distinction (at [133]):

11. [137]

    The learned Crown Prosecutor did not take me to any additional authorities on the subject but says that, properly analysed, the situation here is more analogous to the issue that arose for the High Court’s consideration in Sophear Em. He says that I would not accept that the accused was offered an “off the record conversation”. He fairly concedes (T 372) that if I am satisfied that the accused was induced to believe that what he was saying was off the record in the sense that it would not be used against him or disclosed to Mr Simmons he “couldn't quarrel with your Honour exercising the discretion to exclude it”.

12. [138]

    In spite of the case law in other jurisdictions, the concession made by the Crown Prosecutor and the findings that I have made, it is necessary to determine whether a proper application of the provisions of the Evidence Act lead to a conclusion that the evidence should or must be excluded. The language employed in the case law ought not to distract from the terms of the statute.

Section 85 Evidence Act

1. [139]

   Section 85 of the Evidence Act 1995 (NSW) provides:

2. [140]

   The terms of s 85(1)(a) are clearly satisfied. Accordingly, the question is whether, taking into account all of the circumstances including the particular matters referred to in sub-s (3), “it is unlikely that the truth of the admissions was adversely affected”. While sub-s (3)(b)(ii) makes specific reference to an inducement, the enquiry required by the section remains focussed on the likelihood that the truth of the admissions was affected adversely.

3. [141]

   The section does not call for analysis as to whether the confession is (in fact) true unless, perhaps, the issue is raised by the party taking the objection: s 189(3) Evidence Act. In R v Ye Zhang [2000] NSWSC 1099 Simpson J said at [52]:

4. [142]

   There is some question over whether the enquiry is an objective or subjective one and a number of other controversies surrounding the application of the section: see the helpful discussion of the authorities and typically robust expressions of opinion in Odgers, Uniform Evidence Law (11th Edition) at pp 429-430 [1.3.5220]. These controversies do not really arise in this case. For example, I propose to put to one side any vulnerability that the accused may have had due to his psychiatric condition and drug addictions in spite of the requirement in sub-s (3)(a) to take into account any relevant condition or characteristic of the accused. This aspect has not been subject of argument and, while there is some evidence that the accused’s problems continued, it does not appear to be “relevant” to the question that arises under s 85.

5. [143]

   Equally, I do not propose to engage in a consideration of whether the admission is actually true based around a consideration of the other evidence in the case. What I will do is to apply the words of sub-s (2) – do the circumstances make it unlikely that the truth of the admission was adversely affected?

6. [144]

   I have considered the prosecutor’s submission that the accused did not confess as a result of any inducement offered by the police but, rather, as a result of what his step-father said to him. While that submission has some force given the timing of events, the whole of the circumstances must be considered and the conversation with Mr Fazio must be considered in the light of my finding that the police told the accused that he could speak “off the record” and that the accused believed that this meant the evidence would not be used against him.

7. [145]

   On careful reflection, I have reached the conclusion that the circumstances do not make it unlikely that the truth of the admission was adversely affected. In the precise terms of s 85(2), I am not satisfied that “the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected”.

8. [146]

   In reaching that conclusion, I have given effect to my finding that the accused was induced by a statement that the conversation was “off the record” and his belief that this meant it could not be used against him or disclosed to Simmons. I have also taken into account the fact that the accused was told that he was under arrest for murder and that, after he exercised his right to silence, he was engaged in a “heated discussion” with his mother. He was thereafter told by his step-father that he had to help himself and tell the police what he knew or, on the accused’s account, tell them something. On either account the accused was under considerable pressure to say something and, with the inducement and pressure of the murder charge hanging over him, I am not satisfied that the circumstances were such that it is unlikely that the truth of the admission was adversely affected.

9. [147]

   Having reached that conclusion, s 85 is in mandatory terms. The evidence is not admissible.

Section 90 Evidence Act

1. [148]

   In view of that conclusion, it is strictly unnecessary to consider the discretionary exclusion of the evidence on the grounds that the circumstances in which it was made make it unfair to the accused to use the evidence.

2. [149]

   However, I have also reached the opinion that the discretion under s 90 is engaged given the circumstances as I have outlined them and the factual findings that I have made.

3. [150]

   I have made extensive reference to the operation of s 90 earlier in this judgment and in the judgment allowing the admissions of Mr Simmons to be led in evidence.

4. [151]

   In this case the accused was arrested and told that he was to be charged with murder. Given the timing, that allegation must have been based on the evidence contained in Simmons’ admissions to the police. It may also have received some support from Jodi Biles’ interview back in 2011 but that evidence was insufficient for the police to seek to interview the accused, let alone charge him. The accused denied involvement to Ms Biles in 2011 when she recorded the conversations covertly on behalf of the investigators. He denied involvement when the police met him in the park to arrest him. He exercised his right to silence when he was interviewed formally. He was then offered an inducement namely, that that what he said would be off the record.

5. [152]

   Taking into account all of those circumstances, it would be unfair to use the evidence against him.

6. [153]

   I make the following orders:

   1. (1)

      The evidence of recorded conversations between the accused and Jodi Biles on 1 September 2011 and 6 September 2011 is excluded.

   2. (2)

      The evidence of the unrecorded statements of the accused at the Bathurst Police Station on 18 January 2013 is excluded.