R v Sica[2012] QSC 5

SUPREME COURT OF QUEENSLAND

Application for exclusion of admissions

[1] This application seeks the exclusion of evidence that Andrea Bowman is expected to give at the applicant’s trial.  It concerns part of her conversation with him on 16 March 2008.  The evidence challenged is, as her statement records her prospective testimony:

“...

… I suggested softly, “I know you would have wanted to kill yourself.  You probably thought you would – but then survival instinct kicked in.  You would have hated them for making you do this.  It’s their fault because you would never have done it, if they hadn’t made you” I … continued, “I just need to know you feel remorse”.

… Max volunteered, “If I could take back what happened, I would.  I have remorse for what I did”.  I asked cautiously, “What did you do?”  Max said, “For what I did”.  He paused and said, “Do you know how hard it is to kill someone when someone says, “please don’t, don’t please”.  His eyes drooped heavily.  He mumbled then looked at me astonished and covered his lips and said, “was I just talking then”.  I said, “No”.  He rested his head back on the seat again.

… I turned his face towards mine and placed my hands on it and looked deep into his eyes.  I told him he was a good boy.  I told him that was all I wanted to know – that I couldn’t make sense of the whole jigsaw unless I knew he had remorse.  I told him it just didn’t make sense to me that he was a cold-blooded killer.

…we did not talk much after this and we left the park to take him home.  I dropped him off at his home.

…before we parted, Max asked, “Am I busted?”  I said, “No”.  Max said, “If I am, I want it to be by you.  If I am busted, it’s okay”.  I reiterated – “you’re not busted Max”.”

Essentials of the Prosecution Case

[2] The applicant is charged with the murders of three siblings: Neelma, Kunal and Sidhi Singh, who were killed in their Bridgeman Downs home on or about 21 April 2003.  Neelma was strangled.  Sidhi’s life was taken by blunt force trauma to the head.  Kunal was drowned.

[3] The children were found[1] in a spa bath in an ensuite attached to the main bedroom.  All had sustained blunt force trauma head injuries which were consistent with their having been struck with a garden fork that was found in the garage.  DNA from all three was on the tines of the fork. 

[4] Stains in Neelma’s bedroom matched her blood.  There were drag marks in her blood from her bedroom in the direction of the main bedroom.  Clumps of her hair were near the drag marks.  There were other indications of a struggle.

[5] Sidhi was killed by a blow to her head with the garden fork.  Stains and spray patterns in her blood were on and around the bed in the main bedroom where at times she slept.  She appears to have been killed while asleep in the main bedroom and then put into the spa. 

[6] Kunal suffered severe head injuries and was rendered unconscious when struck with the fork while asleep in his bed.  There were blood stains, spray patterns and drag marks in Kunal’s blood in his bedroom, and drag marks in his blood from there towards the main bedroom.  He looks to have been taken from his bed to the spa bath.  There he drowned.

[7] The applicant and Neelma had been involved from 2002 in what the prosecution characterises as a “complicated and tumultuous” relationship.  By February 2003, the relationship had broken down.  The applicant had not taken well to the termination and had sought to reinvigorate it by a variety of strategies.

[8] In the days before the killings, the applicant visited the Bridgeman Downs house more than once. 

[9] The prosecution case is that, as arranged with Neelma, he returned late on the night of 20 April or in the early hours of the next morning.  They argued.  He strangled her.  To ensure that Sidhi and Kunal could not implicate him in Neelma’s murder, he killed them too.

[10] There had been attempts to make it appear that there had been a burglary, particularly in Neelma’s room.  And the killer cleaned up. 

[11] No DNA links the applicant – or anyone else – to the killings. 

Adequate prosecution case

[12] Many matters[2] combine to present an adequate circumstantial case that it was the applicant who murdered the children.

Applicant’s relationship with the witness

[13] Ms Bowman is in her early 40s.  She met the applicant in 1988 when employed by his parents in their Brisbane restaurant.  The two of them became friends.  They remained so until they lost contact in about 1994. 

[14] After seeing the applicant on television in connection with the killings, Ms Bowman put a card into his letterbox.  He contacted her.  They spoke about the murders.  This was to become a recurring topic of conversation over the years. 

[15] Ms Bowman seems to have been fascinated by the crime.  She was anxious to discuss it with the man she suspected was the killer.  For his part, even after becoming aware that Ms Bowman was talking to the police, and although he often expressed to her a concern that she may have been recording their conversations, the applicant continued to discuss with her the killer’s possible motivations and methods. 

[16] Despite, or perhaps excited by, the evident risks, both of them continued to engage in such conversations periodically over five years, talking[3] at length about the killings, often adopting what Ms Bowman calls a “question and answer” format. 

The witness and the police

[17] In early June 2003, Constable Halfweeg saw Ms Bowman about a child abuse matter in Victoria.  While he prepared her statement, Ms Bowman told him about her knowledge of the applicant.  She also shared her opinions about the killings.  On 25 June 2003, Mr Halfweeg asked her if he might pass on to homicide detectives information she had given to him.  She agreed, on the proviso that she was not to be identified as the source.  A few weeks later, Mr Halfweeg gave Ms Bowman information about the investigation into the killings. 

[18] Over the next two years or so, from time to time, homicide detectives asked Ms Bowman to relay to them what she had learned from her encounters with the applicant.

[19] Ms Bowman told the applicant that she had been talking to the police about him; and by October 2003 Ms Bowman had told the police that the applicant knew that.  She also told Detective Sergeant Zitny in October 2003 that she thought that the applicant had continued to discuss the murders with her because she had led him to believe that she would not betray him.

[20] At the request of the police, Ms Bowman recorded her 26 March and 21 April 2004 conversations with the applicant.  Afterwards, she declined to record her encounters with him.

Ms Bowman’s motivations

[21] Ms Bowman had her own reasons for continuing to talk to the applicant, among them that by May 2004 she had decided to write a book about the murders.  At this stage, she had not had any arranged meetings with the applicant for about six months.  She had, however, kept in contact through phone calls, email and texting.

[22] Ms Bowman sensed that the applicant was interested in her book; and writing it appealed to her: for one thing, it gave her a reason for ongoing interaction with him.  He was supportive and cooperated with her, speaking about his life. 

Discussions continue

[23] Typically, their conversations included what the killer may have done and why.  The possibility that the applicant was the killer was raised.  They also discussed the chance that others may have caused the deaths[4].  Between September and November 2004, Ms Bowman spoke with him about footprint experts.

[24] In 2005, there was only limited contact between the two of them until November, when the murders were again discussed. 

[25] All the while, Ms Bowman had been speaking to detectives assigned to the investigation, especially Mr Massingham and Mr Zitny.  They had asked her more than once what the applicant may have said about particular things of interest and to tell them about other things that had passed between her and the applicant. 

[26] Ms Bowman at times raised with the detectives the prospect of her broaching matters of interest to the police with the applicant.  The police, however, eventually lost enthusiasm for this. 

[27] The police became increasingly concerned for Ms Bowman’s safety and stopped asking her to tell them of her discussions with the applicant.  No such request was made after October 2005.  Ms Bowman went on communicating with the applicant anyhow, talking about how and why the children were killed: for example, in April 2006, the two of them discussed by telephone “various scenarios”, as Ms Bowman puts it, to explain how the murders could have happened. 

[28] About a fortnight later, the applicant told Ms Bowman that others were proposing to write a book about him, on condition that he told all that he knew about the murders.  Towards the end of that encounter, he invited her to go back to her “detective friends” and let them know that he had not told her anything. 

[29] A few weeks later, Ms Bowman saw the applicant at his home to take photos of him for her book.  He checked her camera to see if it carried a recording device.  She thought him paranoid. 

[30] Still, they went on seeing each other.

[31] When Ms Bowman met the applicant in February 2007, he asked if she had appeared at a Crime and Misconduct Commission hearing.  They spoke about the evidence against him, including a footprint.  At the end, he said that he wished that she did work for the detectives for that would mean that she would keep seeing him to get the story. 

[32] More discussion about the murders occurred when the applicant and Ms Bowman met at his home on 13 July 2007.

[33] The last recorded conversation between Ms Bowman and Mr Zitny before the events of 16 March 2008 took place on 25 July 2007.  Mr Zitny emphasised that the police were not asking her to contact the applicant.  He advised her to consider the risks of engaging with him.  The police, he assured her, were “certainly not encouraging you or driving you, or…wanting you to get involved…”.  He asked her to weigh up the risks and to consider whether “you should be pulling out”.  He told her that whether she continued to talk with the applicant was “a decision for you”, asking her to consider not only herself but also her children and husband.

[34] Much the same discouragement from pursuing the applicant was impressed on her on other occasions[5].  Despite the warnings, Ms Bowman continued to see him. 

[35] When they met in late November 2007, she thought the applicant paranoid.  He claimed that passing cars were police vehicles.  He wondered whether her sunglasses were “bugged”.  When he assured her that she could speak openly, she told him that she fully believed that he had killed the three children.  His reaction was to invite her “theory” as to what he had done.  She told him. 

Month preceding the impugned conversation

[36] They met again in late February 2008.  He told her that he knew that she wanted his confession.  She said that she wanted to know if he felt remorse.  She asked him if he had cried after killing the children.  He said he could not answer that question. 

[37] Ms Bowman told Mr Zitny of that meeting.  She said that she had to pretend that she was the offender and to describe what had happened.  She also said that the applicant was worried that she may have been wearing a “bug”.

[38] Ms Bowman called Mr Zitny on 5 March to say that she had spoken to the applicant the day before and that he remained “paranoid that she works for the police and is wired”.[6]

16 March 2008

[39] The impugned conversation took place on the night of 16 March 2008. 

[40] On 2 April 2008, Ms Bowman spoke to Mr Zitny and Mr Massingham.  In a lengthy, recorded interview she described the events of the night.  Most of what follows is based on that version of events.[7]

[41] Ms Bowman had arranged to see the applicant at 8pm – the eve of his birthday.  She did not keep the appointment.  By phone or text message, he let her know that he wanted to see her.

[42] When they had previously met away from the applicant’s home, he had driven himself to the meeting place.  This night, he informed her that they would have to go together in her car because he was “drunk”.  He blamed her for his condition, saying that he had turned to drink because she had told him that she would be seeing him but had not turned up.  She said that she would see him.  He asked her not to collect him from the front of his house but instead to park in a side street.

[43] Ms Bowman’s impression of the applicant as he walked towards her car was that he was drunk.  He was holding a pint glass and “wobbling” as he came down the path.  She had not previously seen him in such a state.  And he had once told her that he refrained from drinking because he did not like to lose control. 

[44] Soon after the applicant got into Ms Bowman’s car.  Ms Bowman inquired about the drink he was holding.  He said that it was Lambrusco.  He asked her if she wanted some.  She said no.  He indicated that he understood why she was abstinent, saying that she could not drink “cause you’re driving; that right”. 

[45] The applicant asked her if her husband was aware that she was to see him.  He was not happy about it, she replied, but had not stopped her after she had said that it was the applicant’s birthday.  She asked him how he had got out of his house without others noticing him.  He responded: “I’ve got my ways…”.  There was discussion about where to go to continue the conversation. 

[46] Ms Bowman asked the applicant how he had been.  “All right”, he responded.  She asked about “Shiv”, his wife.  He described their relationship as being “all over the place”, explaining that she was not then living with him.  There was discussion about the difficulties he was having getting on with his wife’s mother.  He also spoke about looking after a child because he was a better father than his wife was a mother.

[47] His speech was not slurred but his conversation presented as “too loose”: that is, Ms Bowman explained, “unguarded”.

[48] After those pleasantries, the applicant asked: “Are you going to grill me?”: that is, enquiring whether the conversation was to turn to the murders once again.  She answered in the affirmative.[8] 

[49] Ms Bowman drove to a nearby park.  On the way or soon after they arrived there, the applicant said that he believed she was “wired”.  She replied, “I can’t change what you think”.

[50] At the park, the two of them got out of the car so that they could converse away from the vehicle in case, as Ms Bowman supposed the applicant suspected, her car had been fitted with a recording device.  It started to rain, which led the applicant to jest that: “now you’re making it rain so that we have to sit back in the car and talk”[9] where his contributions could be recorded. 

[51] There was a lot of talk.  Towards the latter part of their four hours together, Ms Bowman returned to the topic she had raised three weeks earlier: remorse. 

[52] She said to him that she was still just trying to work out whether he was “actually remorseful” about what had happened or not.  She asked: “Do you cry?”  He responded, “Yeah, I cry like a baby about it”.  The applicant looked her in the face, and said that he had remorse “For what I did”.  She replied, “Okay”.  He told her “If I could take back what happened, I would”. 

[53] There was more talk on the topic in which he said:

“Do you know how hard it is to kill somebody that says: please don’t, don’t, please?”  You know it’s not easy to kill somebody that’s saying that.”

[54] Ms Bowman assured him that she could imagine that.  He said, “Sorry”.  She told him that that was all she wanted to know: “that you feel remorse”.  “This is good”, she said, adding that it made no sense to her that he could be cold-blooded and not have feelings.

[55] Many other things were said between them that night.  There was more exploration of scenarios.  The applicant spoke of a belief that a machete was used.  Reference was made to the use of a shovel to bury someone.  There was mention of blood in the house: he spoke of “blood everywhere…”, which surprised her because he had previously led her to understand that there was not much blood.  Talk went on in that vein.

[56] At the end of their evening, the applicant acknowledged that what he had said to her that night had incriminated him.  With prompting from Mr Zitny, who referred to his notes of what she had told him on 29 March, in her 2 April interview[10], Ms Bowman assented to the proposition that, when about to part, the applicant had asked her: “Am I busted?”; that she had said, “No”, which led him to say “if I am, I want it to be by you.  If I am busted, it is okay.”

In the nature of a confession?

[57] The part of the conversation sought to be excluded is capable of being regarded as an admission tending to prove that the applicant is the killer. 

Voluntary?

[58] The first ground on which exclusion is sought is that the confession was involuntary because the applicant was intoxicated. 

[59] In general, what renders a confessional statement involuntary is some factor external to the confessionalist[11].  However, the authorities recognise exceptions to that general proposition. 

[60] In principle, intoxication could have such a deleterious effect on cognitive functioning that a confession is not voluntary.  Questions of fact and degree are involved.  An unguarded admission made under the disinhibiting effects of alcohol may be voluntary. 

[61] A confession by someone intoxicated will be excluded as involuntary, said Dixon J in Sinclair v The King,[12] when “the degree of intoxication is so great as to deprive [the confessionalist] of understanding what he was confessing”.[13]

[62] Other tests have been suggested.

[63] In R v Arnott[14], the Victorian Court of Appeal, in reference to mental condition, proposed: “Whether the person’s mind was so disordered and irresponsible that it would be dangerous to pay any attention to whatever he…had said... .  If it is, it is inadmissible”. 

[64] The Court of Appeal of Western Australia considered the issue in State of Western Australia v Silich[15], where the confessionalist had participated in a police interview while affected by alcohol.  Martin CJ[16] said[17]:

“…

In Sinclair v The King…Dixon J observed that mental impairment by the maker of a statement against interest did not necessarily mean that the statement was inadmissible in criminal proceedings brought against the maker of the statement, even if, as a consequence of the mental impairment, the maker of the statement was ‘confusing the products of his disordered imagination or fancy with fact’ at the time of making the statement. The statement will be admissible if the mental state of the accused did not ‘disable him from observing, appreciating, recollecting and recounting real occurrences, events or experiences’.  In the same context, Dixon J cited Commonwealth v Howe (1857) 9 Gray 110 as authority for the proposition that a confession made by an intoxicated defendant is admissible in evidence against him unless ‘the degree of intoxication is so great as to deprive him of understanding what he was confessing’.  Accordingly, a statement made against interest will be admissible if, despite mental impairment, the accused was capable of giving a true account of events.

In R v Ostojic (1978) 18 SASR 188, an admission made by an intoxicated accused was ruled to be admissible on the basis of the trial judge’s conclusion that, notwithstanding his intoxication, the accused was capable of giving a detailed account of his movements and actions on the night in question.  The admission of the confession into evidence was upheld on appeal.  Wells J (with whom King and Hogarth JJ agreed), observed:

I could imagine one type of drunken person who is far gone in liquor and who, in the circumstances, is so plainly unaware of his surroundings, of the identity of his interrogator, and of the drift of the questions put, that he is incapable of choosing whether to speak or not, and is just gabbling.  It would not be a wholly unacceptable proposition that what he said was not voluntary.

…

It is a question of fact and degree.

Similarly, in R v Williams, the majority upheld a ruling by the trial judge to the effect that a confession was made voluntarily by the accused notwithstanding his intoxication, although the confession was ultimately excluded on the ground of unfairness.

Accordingly, in the present case, the question of voluntariness is to be determined by asking whether, on the balance of probabilities, the appellant was so intoxicated at the time of his interview by police that he was incapable of choosing whether or not to participate in the interview, or to understand the questions being asked and provide reasonable responses to those questions.”

[65] Buss JA said[18]:

“It is a fundamental requirement of the common law that a confessional statement must be voluntary.  See R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [50] (Toohey, Gaudron & Gummow JJ).

As Deane J noted in Cleland v The Queen [1982] HCA 67: (1982) 151 CLR 1, the rational basis for the rule excluding confessions that are not voluntary is a combination of the potential unreliability of a confessional statement that is involuntary and the common law privilege against self-incrimination.

It is presumed that a confession is voluntary if there is nothing to suggest that it is involuntary.  See Hough v Ah Sam [1912] HCA 78; (1912) 15 CLR 452. 457 (Barton J).  If the issue of voluntariness is raised, the State or the Crown bears the onus of establishing, on the balance of probabilities, that the confession is voluntary. See Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559, 572-573 (Taylor & Owen JJ).

A confession made by an accused ‘more or less under the influence of intoxicating liquor is not inadmissible as evidence unless the degree of intoxication is so great as to deprive him of understanding what he was confessing’: Sinclair v The King [1946] HCA 55; (1946) 73 CLR 316, 336 (Dixon J).

When the accused is intoxicated, to some extent, a confession will not be voluntary unless the evidence demonstrates that, on the balance of probabilities, the accused was capable of appreciating that he or she had a free choice as to whether to speak or remain silent and was capable of exercising sufficient volition to give effect to what he or she knew was this right.  See R v Buchanan [1966] VR 9, 15, (Sholl J, Pape J agreeing); R v Smith (1992) 58 SASR 491, 498 (Perry J).

The effects of alcoholic liquor vary, to a very significant extent, from person to person.  Questions of fact and degree will arise in determining whether a confession made by an accused who is intoxicated, to some extent, was voluntary.  See R v Ostojic (1978) 18 SASR 188, 196-197 (Wells J, Hogarth & King JJ agreeing).

In the present case, the critical question for the trial judge, on the issue of voluntariness, was this:  whether the State had established on the balance of probabilities that, despite his partial intoxication, when Mr Silich was interviewed by the police he was capable of:

(a) appreciating that he had a choice to speak or remain silent, and was capable of exercising sufficient volition to give effect to what he knew was this right; and

(b) understanding the questions put to him and what he was confessing.”

Confession admissible

[66] On any of the approaches in those authorities[19], the prosecution has shown[20] that the admissions were voluntary. 

[67] The applicant’s disclosure about his remorse for the killings very probably was influenced by the disinhibiting effects of alcohol.  Ms Bowman had broached the topic with him a few weeks earlier.  He was sober then; and at that time he declined to be drawn on his feelings. 

[68] But his mind was not seriously disordered on the night of 16 March.  Still less was he deprived by his consumption of alcohol of a free choice whether to speak. 

[69] At the outset, the two of them discussed, sensibly enough, a range of topics.  He was coherent.  Responsively and thoughtfully, he engaged in the exchanges with Ms Bowman.  Moreover, the applicant knew that he was not obliged to speak with her.  He went with her willingly despite knowing that she intended to “grill” him about the murders.  She had usually done that when they met; and in response to his inquiry about whether she intended to do so yet again, she told him that she did.  He decided, as usual, to engage with her.

[70] The applicant was, despite the effects of alcohol, free to choose whether or not to speak about his involvement in the murders.  He chose to speak.[21]

[71] Nor is there good reason to doubt either that he knew what he was saying or that he appreciated its incriminatory potential.

[72] The applicant realised what Ms Bowman was adverting to in questioning him about remorse.  This time, he decided to respond.  He recognised when he uttered them that his responses were inculpatory.  And that he appreciated that his words had affirmed that he was the killer also emerges from his parting reference to being “busted”. 

Unfairness?

[73] The next question is whether the fairness discretion should be invoked to exclude the evidence.  On this, the applicant bears the burden of persuasion. 

[74] A ground on which the discretion is sought to be invoked relates to intoxication.  Mr Di Carlo contends that the applicant’s drunken state could have affected the reliability of his incriminatory statements.

[75] The applicant chose not to give evidence.  So there is no testimony from him to call into question the reliability of his admissions as accurate acknowledgements that he is the killer. 

[76] Mr Di Carlo did not suggest that the confession is inconsistent with the evidence: whether evidence to be adduced at trial or such additional evidence as has been adduced on this application.  So, for example, no alibi is put forward; and it is not said that the evidence points to someone else as the killer. 

[77] The admissions, though lacking detail, conform with the prosecution case.  The comments about how hard it is to kill someone pleading for life fits with Neelma having been strangled. 

[78] Moreover, as has been said, putting the admissions aside, there is an adequate circumstantial case. 

[79] Other events of the night of 16 March do not call the reliability of a confession into question either.  Ms Bowman’s account indicates that the critical words were not spoken in the context of yet another of their many musings about possible scenarios.

[80] In short, the “remorse” and “busted” remarks are not shown to be unreliable acknowledgements of guilt.  And the apparent truthfulness of the admissions is a weighty consideration tending against exclusion. 

[81] The disinhibiting effect of the applicant’s intoxication is not a satisfactory foundation for discretionary exclusion[22].

[82] The effect of the applicant’s intoxication upon his cognitive functioning and the reliability of what he said is not the only basis upon which exclusion of Ms Bowman’s evidence is sought on the footing that its reception would jeopardise the applicant’s right to a fair trial.  The absence of a recording of events that night is also relied on.  It is said that the jury cannot satisfactorily assess the extent of the applicant’s intoxication or its likely impact on the reliability of what, according to Ms Bowman, he said to her about his contrition and whether he was “busted”.

[83] The jury will be left to assess the extent of the applicant’s intoxication and its significance by reference to the recollection of Ms Bowman rather than with the aid of a recording.  But witnesses commonly testify to unrecorded conversations, including incriminating ones.  Moreover, a jury would appreciate that the evidence concerning the admissions is no more reliable than the recollection of the witness, that risks attend the reliability of recall of events years earlier, and that particular factors may call Ms Bowman’s reliability into question. 

[84] Weight and probative value are within a jury’s province[23].  Any significance attaching to the absence of a recording may safely be left for the jury’s evaluation. 

[85] A fair trial is not put at risk because the confession was not recorded. 

[86] Discretionary exclusion is also sought on the basis that Ms Bowman’s recollection of what the accused said to her concerning “remorse” and “busted” is an unreliable account of his participation in the conversation.

[87] There are reasons to be cautious about accepting her account[24]; among them that:

●The 16 March conversation was not recorded;

●Although Ms Bowman made brief notes of the conversation, there is no evidence that her notes refer to the segments relating to remorse and whether the applicant was “busted”;

●Ms Bowman did not report the conversation to the police until 13 days later, and when she telephoned Mr Zitny to say what had occurred, she was affected by alcohol;

●Mr Zitny made notes of what she had told him on 29 March.  Later, he acquainted her with his notes.  Her recollection may thereby have been influenced;

●In a recorded conversation Ms Bowman had with the applicant on 22 April, he did not acknowledge that he was the killer; nor did he accept that he had indicated as much on 16 March[25];

●Ms Bowman’s lengthy statement makes no reference to the applicant having been intoxicated.

[88] But these and any other circumstances that may emerge at trial that could call the reliability of her recollection or her credibility into question are matters for the jury to assess.  They can be properly exposed for the jury’s consideration: as the evidence emerges; and as its infirmities are drawn to the jury’s attention through cross-examination, in the closing addresses of the lawyers, and in the judge’s summing-up[26].  Exclusion of the impugned evidence is not necessary to secure the applicant’s right to a fair trial.

[89] Exclusion on the unfairness ground is also sought on the basis that Ms Bowman, “acting as an agent of the State”, as Mr Di Carlo puts it, took advantage of a vulnerable, intoxicated man.

[90] Ms Bowman was no agent of the State.  For a time, years earlier, the police had used her to elicit information.  That had stopped by October 2005.  More to the point, the police had, on several occasions, discouraged Ms Bowman from continuing to speak with the applicant.  She persisted despite police advice that, in effect, it was dangerous to do so.  Although she intended to tell the police if she heard something of interest to them, and the police would have been grateful for the information, she maintained contact with the applicant for her own purposes.

[91] The absence of a foundation for engaging the fairness discretion makes it unnecessary to weigh the seriousness of the murders in the balance.

Public Policy

[92] There was no unlawful or improper conduct by the police or by Ms Bowman.

[93] The discussions between Ms Bowman and the applicant on 16 March were not conducted at the instigation of the police.  They occurred despite the police having discouraged Ms Bowman from engaging with the applicant in that way.  And the police were not aware that she intended to see him that night; much less that he would be drunk. 

[94] It was contended that Ms Bowman had contravened s.423 of the Police Powers and Responsibilities Act 2000 (“the Act”), which concerns questioning of intoxicated witnesses by police officers. 

[95] Ms Bowman, however, was not a “police officer”[27].

[96] There is no basis in fact for the applicant’s contention that Ms Bowman was a police agent deployed to enable the police to avoid those provisions of the Act that relate to questioning of intoxicated suspects. 

Disposition

[97] The application is dismissed.