R v Kay[2016] QDCPR 11

DISTRICT COURT OF QUEENSLAND

The charge

1. [1]
   There is presently before the court an indictment charging the applicant with one count of serious animal cruelty. The offence is alleged to have been committed on 8 October 2014 at Churchable.

The application

2. [2]
   The applicant has applied for the following rulings pursuant to s 590AA of the Criminal Code:

3. [3]
   As to the third matter, no ruling is now required due to discussions between the parties and certain indications having been given by the prosecution.

Ruling one – The video evidence

4. [4]
   The evidence captured on the covert surveillance video was obtained by two persons, Cotton and Meaden, having entered the property at 13 Wotan Road, Churchable, which is owned by one Noble, and having placed a button camera with an audio/video feed to a recording device under the concrete slab of the structure from which the track lure is operated. The track lure is on a circuit track on the property on which greyhound dogs trained. Cotton and Meaden are not police officers. They describe themselves as ‘freelance investigators’ for Animals Liberation Queensland. Both are former directors of that organisation.

5. [5]
   Cotton and Meaden entered Noble’s property on 19 August 2014, 23 August 2014, 31 August 2014, 5 September 2014, 2 October 2014, 10 October 2014, 12 October 2014 and 16 October 2014. Neither Cotton nor Meaden had the consent of Noble to enter the property.

6. [6]
   The applicant contends that the conduct of Cotton and Meaden was a prima facie breach of s 421 of the Criminal Code (entering and being in premises with intent to commit an indictable offence), and s 11 of the Summary Offences Act (trespass).  The prosecution concedes that the conduct of Cotton and Meaden would constitute trespass.  It is not conceded that there was a breach of s 421 of the Code. 

7. [7]
   The indictable offence Cotton and Meaden committed, and which they entered Nobel’s property with intention to commit, is said to be that created by s 43 of the Invasion of Privacy Act 1971 (IPA).  Under s 43 it is an indictable offence to use a listening device to overhear, record, monitor or listen to a private conversation. 

8. [8]
   Section 46 of the IPA makes inadmissible at law evidence by a person of a private conversation where the conversation has come to that persons knowledge as a direct or indirect result of the use of a listening device in contravention of s 43.

9. [9]
   The applicant’s primary contention is that s 46 of the IPA renders inadmissible the “private conversation knowledge”.^[1]

10. [10]
    Section 4 of the IPA defines a private conversation as follows:

“ “Private conversation” means any words spoken by one person to another person in circumstances that indicate that those persons desire the words to be heard or listened to only by themselves or that indicate that either of those persons desires the words to be heard or listened to only by themselves and by some other person, but does not include words spoken by one person to another person in circumstances in which either of those persons ought reasonably to expect the words may be overheard, recorded, monitored or listened to by some other person, not being a person who has the consent, express or implied, of either of those persons to do so”.

11. [11]
    The applicant contends that the conversations recorded appear to be communications between the owner of the property and others involved in alleged illegal activity and that, given their content, it is readily apparent that the persons desired the words to be heard or listened to only by themselves and not by some other person. He further contends that they certainly could not have had reason to expect the words may be overheard, recorded, monitored or listened by some other person.

12. [12]
    The prosecution submits that the dominant portion of the recorded conversation is inaudible over the noise of the lure and that from the portion that can be heard it is unclear who the conversation is between, and that it is uncertain whether the applicant takes part in it at all. At times Noble and a woman, Edmonson, (who herself has been convicted of related offending and who has agreed to cooperate in the prosecution of the applicant) are talking to each other from either side of the track, some distance apart from each other as people are coming and going from the property. The arrangements for using the track did not require an appointment to be made and people just turned up. There were about 20 people who attended on the day in question.

13. [13]
    In those circumstances the prosecution contends that the applicant ought to have reasonably expected that someone other than Noble or Edmonson could have overheard the conversation.

14. [14]
    The narrow issue of whether s 46 renders the evidence inadmissible can be dealt with briefly. It does not.

15. [15]
    That which is protected by the relevant provisions of the IPA is the private conversation.  It is the private conversation which is also the subject of the protection offered by s 44 which makes it an offence to communicate or publish a private conversation, or a report of, the substance of, or the meaning of, such conversation by a person whose knowledge of the conversation was the direct or indirect result of a contravention of s 43. 

16. [16]
    In this matter, the evidence recorded which the prosecution seeks to adduce is not of any conversation; but the video footage which shows what is alleged to be the practice of live baiting using a piglet suspended from the lure. Section 46 has no operation in respect of that video footage.

17. [17]
    The broader issue concerning these relevant provisions of the IPA is whether the court ought to exclude the otherwise admissible evidence in exercise of its discretion because the video recording was obtained:

18. [18]
    In considering this broader issue, the relevant conversations are not to be restricted to those involving only the applicant. If other private conversations were recorded in contravention of s 43 of the IPA and the premises were entered with intent of sole recording them, then the video footage would have been obtained in the commission of those offences.  That said, the only recording which has been put into evidence is one of two hours and 19 minutes duration on 8 October 2014.  That footage contains many conversations. However, having viewed the recordings and listened to the conversations, to the extent that they are audible, I do not consider that they are private conversations as defined by the IPA. 

19. [19]
    In his submissions, the applicant identifies the following fractural features which suggest that there could be no reasonable expectation that the words may be overheard, recorded, monitored or listen to by some other person:

20. [20]
    The content of the conversation varies, but no particular content of any of the conversations struck me as suggesting that it was inherently private.

21. [21]
    Whilst the conversations are between individuals addressing one another, in a number of instances the conversations were clearly being listened to by persons other than the direct participants. In some instances third persons can clearly be seen following and reacting to the conversations between others. The reactions of those persons indicate that it was apparent to the participants in the conversation that their conversation was being listened to by the third parties. In respect of those conversations, I would readily find that there was actual knowledge of the part of the participants that their words were being overheard and listened to by others, and that they impliedly consented to that.

22. [22]
    In some instances there are many persons present when a conversation is taking place. The conversations are, generally, conducted at quite an audible volume. Often the participants seem some distance from each other. These factors, taken with the toing and froing of people from the track, strongly suggest to me that in all of the conversations which I heard on the recording the participants ought reasonably have expected that their words may have been overheard or listened to by persons other than the other participants in the conversation.^[2] 

23. [23]
    In those circumstances, none of the video footage was obtained during or through a contravention of s 43 of the IPA.  Nor was it obtained itself during or as the result of a contravention of s 431 of the Criminal Code.  The premises were not, prima facie, entered with the intent of committing an indictable offence.

24. [24]
    The footage was, however, obtained a result of a trespass, or trespasses, onto Noble’s property. Therefore, consideration must be given to whether the video evidence ought be excluded in the exercise of the courts discretion because it was unlawfully or improperly obtained. The exercise of that discretion requires a balancing of competing requirements of public policy, one being “the desirable goal of bringing to conviction the wrongdoer”, the other being “the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law”.^[3]

25. [25]
    In R v Versac^[4] Applegarth J identified the following as factors which Australian Courts have recognised as being relevant to the exercise of the discretion:

26. [26]
    His Honour went on to observe at [7] that:

“The weight given to completing factors depends on those circumstances.  For example, the particular circumstances may deprive the principle of deterrence of much weight.  The unlawful conduct may have been the subject of disciplinary procedures, counselling or other remedies which sanction wrongful conduct or deter its repetition.  If this is not the case, exclusion of the evidence may be appropriate to both uphold the judicial integrity principle and to deter such conduct in the future.  If such unlawful conduct is tolerated by those in higher authority, then the case for exclusion will be stronger.”

27. [27]
    The applicant submits that in this matter there was not merely a technical infringement of the law, nor was it mere recklessness. It was, he contends, a deliberate and repeated trespass. He contends that whilst the evidence is cogent and concerns a serious offence within the context of the racing industry,

“Cogency should, generally, be allowed to play no part in the exercise of discretion where the illegality involved in procuring it is intentional or reckless”.^[5] 

28. [28]
    He submits that it is readily apparent that the evidence is central to the case against him.

29. [29]
    The respondent emphasises that it was not the investigating police officers who were engaged in any unlawful conduct, but rather the “freelance investigators”.

30. [30]
    The respondent also submits that it is important that the owner of the property has made no complaint to police despite being aware of those persons having entered his property. The applicant submits that the absence of a compliant is irrelevant. Either an offence of trespass has been committed or it has not been.

31. [31]
    In respect of the trespass having been committed by the investigators he submits that:

“The fact that the Racing Steward or Racing Queensland were not complicit originally in the evidence being improperly/unlawfully obtained does not absolve them of the responsibility not to compound the original offence or by their actions in communicating or publishing this footage breaches s 44 of the IPA.”^[6]

32. [32]
    That submission is, with respect, somewhat odd. It would be apposite to proceedings in which the steward or Racing Queensland were involved such as disciplinary proceedings under legislation regulating to the racing industry, but inapposite to these proceedings in which neither are a party.

33. [33]
    One might infer, however, that the applicant’s written submission was intended to be directed toward the lack of complicity on the part of the police. His oral submissions were that it was not relevant that the unlawfulness was committed by people other than the police, the question being whether the evidence was the product of an unlawful act.^[7]                   

34. [34]
    In Bunning v Cross Stephen and Aikin JJ approved what had been said by Barwick CJ in R v Ireland.^[8]  In Ireland, Barwick CJ referred to evidence obtained by both unlawful and unfair acts;^[9]  but the acts concerned in that case were of the police themselves.  In Bunning v Cross, as already referred to above, Stephen and Aikin JJ referred to “the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law.” (Emphasis added).^[10]

35. [35]
    Later, their Honours referred to “society’s right to insist that those who enforce the law themselves respect it.”^[11] (emphasis added)

36. [36]
    In Bunning v Cross, Barwick CJ, in agreeing with the joint judgment of Stephen and Aikin JJ, stated the question as being whether the public interest in enforcement of the particular law:

“is so outweighed by unfairness to the applicant in the manner in which the evidence came into existence or into he hands of the Crown that, notwithstanding its cogency, it should be rejected”.^[12]

37. [37]
    That passage of the judgment of the Chief Justice suggests the discretion to exclude unlawfully or unfairly obtained evidence may extend to cases in which the unlawful or unfair acts were not those of persons who themselves are entrusted to enforce the law.

38. [38]
    Recently, in Police v Dunstall^[13]the following was said:

“In criminal proceedings there are two settled bases for the discretionary exclusion of non-confessional evidence, including “real” and circumstantial evidence.  The first is where the probative value of the evidence is outweighed by the risk of prejudice to the defendant (the Christie discretion).  The second is where the evidence has been tainted by illegality or impropriety on the part of the law enforcement authority (the Bunning v Cross discretion).  The rationale for the latter discretion is not so much a concern with fairness to the defendant as with the public policy of not giving the appearance of curial approval to wrongdoing on the part of those whose duty it is to enforce the law.”

39. [39]
    In Ridgeway v The Queen^[14] Mason CJ, Deane and Dawson JJ said to:

“The weight to be given to the principle considerations of public policy favouring the exclusion of the evidence – the public interest in maintaining the integrity of the courts and in ensuring the observance of the law and minimum standards of proprietary by those entrusted with powers of law enforcement – will vary according to other factors of which the most important will ordinarily be the nature, the seriousness and the effect of the illegal or improper conduct engaged in by the law enforcement officers and whether such conduct is encouraged or tolerated by those in higher authority in the police force, or in the case of illegal conduct, by those responsible for the institution of criminal proceedings.”

40. [40]
    In my view, the discretion to exclude extends to evidence which has been obtained by unlawful, improper or unfair acts by persons other than the law enforcement authorities. However, the fact that the acts were not those of law enforcement authorities is a factor to be weighed in the balance of the completing public policy considerations. For example, Stephen and Aikin JJ identified as a relevant consideration, which may arise in some cases, the ease with which the law might have been complied with in procuring the evidence in question. They observed that “a deliberate “cutting of the corners” would tend against the admissibility of evidence illegally obtained”.^[15]    There is less likely to be a deliberate cutting of corners by persons other than law enforcement authorities.

41. [41]
    Similarly, in my view, when considering the cogency of the evidence, a relevant matter may be that the illegal or unfair acts by which the evidence was procured were of persons other than those intrusted to enforce the law. In Bunning v Cross, Stephen and Aikin JJ said this of the consideration of cogency of the evidence:

“To treat cogency of evidence as a factor favouring admission, where the illegality in obtaining it has been either deliberate or reckless, may serve to foster the quite erroneous view that if such evidence be but damning enough that will of itself suffice to atone for the illegality involved in procuring it. For this reason cogency should, generally, be allowed to play no part in the exercise of discretion where the illegality involved in procuring it is intentional or reckless.”^[16]

42. [42]
    In speaking of intentional, deliberate or reckless illegality in obtaining the evidence, their Honours had, in the immediately preceding passage, identified “the real evil” as the “deliberate or reckless disregard of the law by those whose duty it is to enforce it”.^[17]

43. [43]
    The applicant did not go so far as to say that cogency played no role in the balancing exercise, just that it should not have any significant role.

44. [44]
    In this case, the evidence is highly cogent. It appears to show live baiting of greyhound dogs using a live piglet at or about the time that dogs belonging to, or trained by the applicant trained on the relevant occasion. Indeed, the respondent submits that the evidence is critical to the prosecution case.

45. [45]
    In my view, that the evidence obtained is cogent and central to the prosecution are factors which weigh in favour of its admission. The fact that the trespass by which the footage was obtained was committed by persons other than law enforcement authorities weighs less heavily against its admission than had it been by police

46. [46]
    So too, a comparison of the seriousness of the offence and the unlawful conduct also favours admission of the evidence. Without attempting to trivialise the offence, it was submitted on behalf of the applicant that the seriousness of the offence in this case was not in the order of that in other cases in which the discretion had been considered, such as major drugs cases in which the penalties imposed would include lengthy terms of imprisonment, for example in Versac. Mr Boe of counsel for the applicant sought to illustrate this point by reference to a co-accused of the applicant who had pleaded guilty to the offence having received only a fine. 

47. [47]
    In Versac, Applegarth J said at [62]:

“The more serious the offence, the more likely it is that the public interest requires the admission of the evidence.”

48. [48]
    His Honour cited Bunning v Cross at 80 and R v Dalley.^[18]

49. [49]
    In my view, whilst the seriousness of the offence is a relevant consideration, it is not merely a matter of looking at the particular offence charged and placing that within some notional range of seriousness with other offences. In my view, what is called for is a comparison of the seriousness of the offence and the unlawful conduct. In Bunning v Cross, Stephen and Aikin JJ identified as an important factor “the nature of the offence charged”.^[19]  Of the consideration of that factor their Honours said:

“Some examination of the comparative seriousness of the offence and of the unlawful conduct of the law enforcement authority is an element in the process required by Ireland's Case.”

50. [50]
    In R v Dalley,^[20] Spigelman J said:

“The more serious the offence, the more likely it is that the public interest requires the admission of the evidence.”

51. [51]
    Later,^[21] His Honour concluded:

“In my opinion, the public interest in the conviction and punishment of those guilty of crime is entitled to greater weight in the case of crimes of greater gravity.”

52. [52]
    In reaching that conclusion, His Honour referred to what had been said by Deane J in Pollard v The Queen^[22] in a passage which Spigelman J said indicated that at common law the position is that the more serious an offence, the less likely the discretion will be exercised in favour of exclusion.  Deane J had said:

“In any case where a voluntary confessional statement has been procured by unlawful conduct on the part of a law enforcement officer, there is conflict between the public interest in ensuring observance of the law by those intrusted with its enforcement and the public interest in the conviction and punishment of those guilty of crime.  In the process to resolve that conflict, the weight of the competing considerations of public policy will vary according to the circumstances of that particular case.  The weight to be given to the public interest in the conviction and punishment of crime will vary according to the heinousness of the alleged crime or crimes and the reliability and unequivocalness of the alleged confessional statement.  The weight to be given to the principle considerations of public policy favouring the exclusion of the evidence will vary according to other factors of which the most important will ordinarily be the nature and the seriousness of the unlawful conduct engaged in by the law enforcement officers.”

53. [53]
    That passage emphasises that the exercise of the discretion is a balancing process between the competing public policy considerations which will involve, as a part of that process, weighing or comparing the seriousness of the offence (which weighs in favour of inclusion) and the seriousness of the unlawful or improper conduct (which weighs in favour of exclusion). The passage demonstrates that there may be cases in which the offence is very serious, but the unlawful conduct by which the evidence is obtained is also very serious. Similarly, there may be cases where a less serious offence will not weigh as strongly in favour of inclusion, but it may be that the unlawfulness or improper or unfair conduct is also of a less serious nature and thus will not weigh as heavily in favour of exclusion.

54. [54]
    Here, although the offence may not be of a most serious kind in comparison to other crimes, the unlawful acts are also, in my view, of a lower order. In this regard it is again relevant, in my opinion, that it was not the law enforcement authorities who committed the trespass.

55. [55]
    I am, therefore, of the view that the fact that the offence is of a comparatively less serious nature does not, of itself, weigh in favour of the exclusion of the evidence and that when compared with the unlawful conduct in obtaining the evidence, it should be admitted.

56. [56]
    In coming to this conclusion, however, I do not consider the fact that there has been no complaint made about the trespass to be a relevant consideration. In my view, the conduct itself must be considered in judging its seriousness. The fact that a complaint is, or is not, made about the conduct does not alter, one way or the other, its seriousness.

Conclusion on Ruling 1

57. [57]
    For these reasons, I am of the view that the video evidence is admissible and should not be excluded in the exercise of discretion.

Ruling 2 – The Applicant’s admissions

58. [58]
    In the course of a recorded interview with police on 26 March 2016 the applicant made two statements upon which the prosecution seeks to rely as admissions. The first was made at 20:09:09 hours when the applicant said in respect of his dogs’ trialling on 8 October 2014:

“Well they obviously went around on the pig.  But they wouldn’t have hurt it.”

59. [59]
    The second was at 20:56:02 hours when the applicant responded to a question as to whether he thought it was the case that his dogs trailed on the pig:

“I’d say they had did, yes”.

60. [60]
    The applicant seeks to have the admissions excluded on two bases. First, that they were obtained by use of the unlawfully obtained video evidence which was played to the applicant in the course of his interview with police. Secondly, that the admissions are unreliable in the context of what the applicant had been put through in the interview leading up to each of the admissions being made.

61. [61]
    It is convenient to deal with the second basis first.

62. [62]
    At the outset of the interview, and on several further occasions during it, the applicant had his rights explained to him. He was informed of his right to remain silent and that he could telephone a friend, relative or lawyer to have them present during the questioning.

63. [63]
    The first admission followed shortly after video footage of 8 October 2014 was played to the applicant in the course of the interview. Present at the interview with the applicant were Detective Senior Constable Coultis and Detective Sergeant Tracey Pelling. Shortly before the footage was played, detective Sargent Pelling had told the applicant there was in excess of 500 hours of footage obtained from the training and track.

64. [64]
    The interview was suspended at 7:53pm to allow the video footage to be obtained and a laptop computer set up so that it could be played to the applicant. The interview was recommenced five minutes later at 7:58pm. Upon the recommencement the applicant was asked a number of questions about what had occurred in the period during which recording had been suspended. He was asked if the police officers had threatened him in anyway. He answered in the negative. He was asked whether the police officers had carried on “like a pork chop”. Again, he answered in the negative. He was then asked by Detective Senior Constable Coultis:

“Did we induce you in anyway, did we promise you anything”

65. [65]
    The applicant responded by pointing to Detective Sergeant Pelling and the following exchange took place:

66. [66]
    In the course of the interview which preceded the playing of the video footage the applicant had consistently denied any knowledge of his dogs trialling on a pig. He had also not made any admissions during discussions which had occurred between him and the police officers earlier on 26 March 2015. A search warrant had been executed and the conversations with the applicant at that time were digitally recorded. There were other conversations between the police officers and the applicant on that day. All were recorded on Detective Sergeant Pelling’s digital recorder. However, when attempts were made to download those recordings some weeks later it was discovered that the recorded files had been corrupted and could not be successfully downloaded.

67. [67]
    When cross-examined about what conversation had occurred during the suspension of recording and the applicant’s statement when asked if he had been offered any inducement that Detective Sargent Pelling had given him a lecture and had told him a few facts of life, Detective Sargent Pelling said that she didn’t give him a lecture. She gave the following evidence:

“What did you say to him? --- What I actually said to him was that I was actually looking for a champion for the sport of greyhound racing, and I thought that Reg could be that champion.

And did you say to him you want him to man up and be remorseful? --- No. I didn’t tell him I wanted him to be remorseful, but I did say, Reg, could you sit up, mate.  He – he was leaning forward on the – getting lower and lower on the interview desk, and saying, mate, you need to sit up – sit up, put your shoulders back.

And what was this thing about being a champion?  What did you say? --- I just – yeah.  I said to him - I said I think the sport of greyhound racing needs a champion, Reg, and you’ve spent all of your life involved in the sport and you’ve given a lot to it and – and I said to him I would have loved to have seen him be the champion of the sport, and he said I’m not the champion of the sport, Tracey.

I’m suggesting to you that you actually added, “I want you to man up”.  Do you dispute that or do you accept the possibility that you used those words? --- I - I don’t think I – No.  I don’t think I told him to man up, no.

Do you dispute it or you just don’t recall? --- I don’t recall.  I don’t – it’s not the sort of words that I would use.

But the general tenor of what you’ve said so far as saying to him was that he should be upright and upstanding and be an icon to the sport, isn’t it? --- Yeah.  And he was – because he was slumped over on the desk.  Like, he was really – really starting to slump – like, physically slump onto the desk. 

Yes.  But forget that ---? --- Yes.  And I was asking him to sit up.

Well you weren’t just worried about his posture, were you? You were asking him to take responsibility for his position in the industry? --- I was asking him to be a champion at the sport yes.”

68. [68]
    Later, she gave this evidence having been reminded of what she had placed on the record as having been discussed between her and the applicant during the suspension of recording:

“No mention whatsoever of your asking him to sit up straight, take responsibility, be a champion for his industry? --- Arghh – Huh. 

Why is that? Why didn’t you include what in fact occurred in the conversation that was not recorded in the triple deck recording? --- I felt satisfied that once Reg had said that I’d given him a lecture and then when I said I want to seek to clarify that, I guess I was satisfied at that point that he was acknowledging that I hadn’t given him a lecture. 

But it’s very misleading, isn’t?  On the record there’s no suggestion that you in fact did lecture him about his position in the industry.  And when he purported to put that up as a response to a question whether he’d been induced or promised anything, you cut across it by suggesting that nothing of that kind took place.  Do you accept that? --- I accept that I said to him, “I want to clarify that”. 

No. Well, what I’m saying is your clarification included no concept of having told him what you’ve now told the court you did in fact say to him? --- Yeah.  I don’t know what ---

That’s a bit unfair, isn’t it? --- If – if we still have the visual recording, it would be – the whole conversation would be for the court.  I thought that I had clarified enough at the time and gotten acknowledgment from Mr Kay that I hadn’t lectured him.

Sergeant, What I’m suggesting to you is that your clarification completely concealed the content of his complaint? --- His complaint?

His complaint was that he had been given a lecture and that you’d told him a few facts of life.  You, in response to covering that, do not mention any of that which he was complaining about, I suggest? --- I don’t know what you want me to say to that, Mr Boe. 

Well, do you accept the proposition that the triple A recording unfairly records what in fact took place at that point in time? --- Are you saying that I should have sought more calcification?  Is that – yes, perhaps I should have sought more clarification of the conversation. 

Well, I’m saying a lot of things, but not just to you, but I’m asking you the question – is that do you accept that it was unfair for you to summarise the conversation you in fact had with him by not including the substance of that conversation? --- No, I don’t think it was unfair.

Well, why did you leave it out? --- I didn’t deliberately leave it out.  I thought that we’d moved on enough to move forward with the interview.  I didn’t deliberately leave it out.

His concession, following what you said to him, of “that’s right,” was in fact not an accurate agreement with what in fact occurred, was it?  From your evidence today? --- When he said that was right, he was agreeing to what we’d said. 

Yes, but the ---? --- I don’t know what else he was saying “that’s right” to.

Well, you – it was put by him to the two of you that you had lectured him and told him a few facts of life? --- Yep.

You – and the video will be seen by the court.  I suggest you felt it necessary to clarify that to protect yourself from the allegation and you put on record that it was only to do with the playing of the footage and he agreed with you.  That’s what the record shows, ok? --- Yep.

What I’m suggesting to you is that his agreement, given what you’ve told us today, was in fact a false agreement.  Would you accept that? --- I guess so.”

69. [69]
    In McDermott v The King, Dixon J said:

“At 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 means substantially that it has been made in the exercise of his free choice. If 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. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made: per Cave J. in R. v. Thompson. The expression “person in authority” includes officers of police and the like, the prosecutor, and others concerned in preferring the charge. An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority.”^[24]

70. [70]
    Section 10 of the Criminal Law Amendment Act 1894 provides:

“No confession which is tendered in in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority, and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown.”

71. [71]
    It is submitted for the applicant that he was overborne by the process of the interview and that the two admissions sought to be relied upon by the prosecution were not voluntarily made by the defendant. Because of that, it is said that the admissions are unreliable. Part of the interview process by which it is contended for the applicant that he was overborne was that the investigating officers had told him that they had 500 hours of video footage, but which was not played to him. It is contended that it was put to the defendant that in light of there being 500 hours of video recordings he should just “fess up”. The further basis upon which it is said that he was overborne was through whatever was said by Sergeant Pelling in the break between recordings. It was submitted that the fact the defendant was overborne was demonstrated by his agreeing to officer Pelling’s recorded explanation of what she had said to him during the break which, on her evidence on the hearing of the application, was not true.

72. [72]
    In my view, the admissions made by the defendant are unreliable and are not admissible.

73. [73]
    The evidence which officer Pelling gave on the application as to what was discussed between her in the break between recording the interview, and what was described by the defendant upon the resumption of recording as her having giving him a lecture, gives rise to real concerns about the voluntariness of the admissions.

74. [74]
    First, it is of concern that the explanation which officer Pelling placed on the record in the recorded interview was, on her evidence before me in the hearing of the application, inaccurate. It is very difficult to resolve why a police officer would record such an inaccurate explanation when she was responding spontaneously to the defendant having said that she had given him a lecture. Her stated purpose for placing on the record that explanation was that she had to cover, that is, address what the applicant had said.

75. [75]
    The explanation that she chose to place on the record was that she had said no more than the footage was going to be played and that it was going to refresh the applicant’s memory. The explanation placed on the record contains none of the matters which the officer now says were discussed. Certainly, the matters which she now says were discussed would be much more likely to have prompted the applicant to describe them as a “lecture” or a statement of “a few facts of life”, than would be the recorded explanation.

76. [76]
    Secondly, officer Pelling in rejecting in evidence the suggestion that she had not told the applicant to “man up and be remorseful” said that she had asked him to sit up and pull his shoulders back because he had been leaning forward and getting lower and lower on the interview desk. Having watched the video recording of the interview, there is no noticeable change in the posture of the applicant, or in the way he was sitting in the interview room, from the commencement of the interview at 16:50 hours until it was suspended.

77. [77]
    At the commencement of the interview the participants positioned themselves so as to all be visible to the camera. The applicant sits side on to the interview desk and is filmed in profile as he looks along the desk to the two officers. He rests on his left elbow and arm. That is the position which he maintains essentially throughout the interview until it is suspended. Upon the resumption of the interview there is no discernible difference in his posture. He does sit more face on to the desk and the camera because the laptop computer on which he is to view the video footage is positioned on the interview desk to his left.

78. [78]
    Thirdly, officer Pelling’s statement that she thought the sport of greyhound racing needed a champion and that the applicant having spent all his life involved in the sport, and having given a lot to it, she would have loved to have seen him be the champion of the sport, was reasonably open to have been considered by the applicant as a statement from which he could take some hope of advantage. That the applicant may have construed in that way might be inferred from the fact that he had answered “no” when asked if he had been threated during the break, and “no” when asked if the police had carried on “like a pork chop”, however, when asked “did we induce you in anyway or did we promise you anything” he immediately referred to officer Pelling having given him a lecture.

79. [79]
    The fact that immediately following this he agrees to the explanation placed on the record by officer Pelling as to what she said during the suspension in recording, which explanation it is now known from her evidence on the application was entirely inaccurate, and which failed to state what had in fact been said, demonstrates that he was prepared to accept, and not expose, inaccuracies. That, in my view, suggests that the applicant may have been overborne by what had been said during the suspension of recording and was prepared to act in a compliant manner.

80. [80]
    Against that background, I could not be satisfied that the two admissions which followed shortly afterwards in the interview were voluntary and reliable. I am not satisfied on the balance of probabilities that the statement by officer Pelling did not operate at all on the mind of the applicant making the admissions.^[25]

81. [81]
    The admissions are inadmissible.

Orders