R v Healy[2014] QSC 236

SUPREME COURT OF QUEENSLAND

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE –

ILLEGALLY OBTAINED EVIDENCE – GENERALLY – where phone calls made to one mobile service diverted to another that was intercepted under warrant – where cooffender who held both mobile services cooperated with police – whether interception of the diverted calls was done “under a warrant” within the meaning of s 7(2) of the Telecommunications (Interceptions and Access) Act 1979 (Cth)

CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS               –               STATEMENTS               –                             VOLUNATRY STATEMENTS – INDUCEMENT – OTHER MATTERS NOT CONSTITUTING INDUCEMENT – where co-offender gave induced statement to police – where induced statement was subsequently confirmed under caution – where alleged that police induced co-offender to cooperate through fear of prejudice or hope of advantage – whether evidence demonstrates co-offender’s independent choice to cooperate

Criminal Code 1899 (Qld) s 590AA

Crimes Act 1914 (Cth) s 23F and s 23V, considered

Telecommunications (Interception and Access) Act 1979 (Cth) s 5 and s 7, considered

Bunning v Cross (1978) 141 CLR 54, cited

Collins v R (1980) 31 ALR 257 at 216, followed; at 309, 317, cited

Hilton v Wells (1985) 59 ALJR 396; 58 ALR 245, applied

McDermott v The King (1948) 76 CLR 501, considered

Pollard v R  (1992) 176 CLR 177 at 202-203, cited

R v Ireland (1920) 126 CLR 321 at 334-335, cited

R v Marks (2004) VSC 476 at [108], applied R v Pinkstone (SC(WA), 10 March 1997, unreported), applied

R v Smith (1996) 86 A Crim R 398 at 403-404, followed

R v Swaffield; Pavic v The Queen (1998) 192 CLR 159 at

194, cited

R v Warrell [1993] 1 VR 671 at 681, cited

Ridgeway v The Queen (1995) 184 CLR 19, cited

1. [1]
   This is a contested application under s 590AA of the Criminal Code (Qld) for pretrial admissibility rulings.  The relief sought is the exclusion of proposed prosecution evidence or a stay of proceedings for abuse of process.
2. [2]
   The applicant is charged with importing and attempted possession of six kilograms of pure cocaine.
3. [3]
   The maximum penalty for each offence is the same but one may be regarded as more serious than the other depending on the circumstances.^[1]
4. [4]
   The challenged evidence is the expected testimony of one of the applicant’s alleged accomplices, Brett Dunn, and recordings of intercepted phone conversations between the two of them.  There is insufficient evidence to sustain a conviction without the challenged evidence.

The objection

5. [5]
   The application is focused solely on the conduct of police.  The applicant objects to the real evidence of the intercepted conversations for both illegality and investigative impropriety.  The conversations are said to have been intercepted without the lawful authority of a warrant and/or improperly recorded because they were outside the scope of the warrant.  It is also contended that it would be contrary to public policy to permit the prosecution to have the forensic advantage of the intercepted communications.  In this regard, the applicant submits that Dunn’s side of the conversations were either involuntary or procured by misuse of police investigative power, while the applicant’s own self-incriminating statements were elicited by illegitimate police deception.
6. [6]
   The applicant also argues that the prosecution should not be allowed to call Dunn as a witness because his “proof of evidence” was “involuntary” or obtained in breach of statutory procedural protections, undue pressure and manipulation.  The Crown denies that the exclusionary discretion arises or should be exercised in the circumstances because the challenged evidence is really the product of Dunn’s willingness to give and procure it rather than the result of any irregular law enforcement methods.
7. [7]
   Whether Dunn’s induced statements and actions would have been admissible in any prosecution against him is not at issue.  The question is instead whether the court should allow the prosecution to use his testimony and the derivative real evidence of the intercepted conversations to convict the applicant at his upcoming trial.  
8. [8]
   The key issue is whether the investigation was conducted in such an unacceptable way that it should not be allowed to “bear fruit” for public policy reasons.^[2]

The context

9. [9]
   On 27 May 2009, Dunn was caught in a federal police undercover operation collecting what he thought was a posted parcel of illegal drugs allegedly smuggled into Australia by the applicant from Thailand via the United States.  After initially refusing to talk to investigators, Dunn later agreed to tell them about the applicant’s role in bringing the drugs into the country.  
10. [10]
    Telephone calls allegedly made by the applicant from Thai telephone number +66

810 007 336 to Dunn’s private mobile service (+61 406 890 029), which police had diverted to number +61 403 738 280, were also secretly intercepted under warrant in the period from 28 May 2009 to 1 June 2009 (“the intercepted conversations).^[3] Then on 2 June 2009 Dunn delivered a backpack supposedly containing eight kilograms of cocaine to another target of the investigation at a shopping centre in Fairfield (“the controlled delivery”).

11. [11]
    The induced statement was initially given on the proviso that the information would not be used to prosecute him and in anticipation of consideration being given to the possibility of an indemnity.  However, after the controlled delivery Dunn confirmed the truth or accuracy of the induced statement under caution so as to make it at least notionally admissible against him as a confession.^[4] He pleaded guilty to the offence of attempting to possess cocaine in February 2010.^[5] A formal police statement was signed by Dunn on 23 June 2009 (“the induced statement”).^[6] He was sentenced to a shorter term of imprisonment that he would otherwise have received because of an undertaking to testify against the applicant.

Findings

[12]  The public policy discretion is not engaged because the challenged evidence was not produced or procured by investigative misconduct.  If some aspect of the conduct of the investigation was unlawful or improper, neither a purposive application of the discretion nor the balance of relevant public policy considerations favours the exclusion of the evidence.  Reception of the evidence at trial would not amount to an abuse of process, demean the court, or lower community confidence in the due administration of criminal justice within the State.

Ruling

[13]  The prosecution is permitted to lead the challenged evidence at the applicant’s trial in proof of his guilt.  The importance of the points involved and the likely effect on the outcome of the case require that reasons be given.

Reasons

14. [14]
    The criminal admissibility rules “…represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth”.^[7] Confessions are thus received testimonially, despite their hearsay character, on the basis of the theory that self-condemnation is most likely to be true.^[8] Forced confessions were rejected at common law only because of their inherently dubious quality.^[9]
15. [15]
    It was not until the late 19^th century that confessions, when induced by persons in authority, were presumed to be involuntary and therefore liable to mandatory exclusion at common law^[10] and, in Queensland, under statute.^[11] What matters, in this context, is not how the confession was obtained, but whether the suspect’s free will was somehow overborne, for example by fear of prejudice or hope of advantage.^[12]  The intention of police is immaterial to making this assessment.^[13]
16. [16]
    The High Court later approved an extension of the common law and statutory rules excluding involuntary statements in McDermott v The King.^[14] Dixon J confirmed a power to reject unfairly or “improperly procured” confessions that do not attract the strict operation of the exclusionary rules.^[15] The discretion arises whenever admitting the confession against the accused would be unfair or lead to a miscarriage of justice.^[16]
17. [17]
    Nowadays, trial judges have even broader general law, statutory and discretionary authority, not limited to confessions, to override or modify admissibility rules for reasons of undue prejudice, unfairness and public policy.^[17] As the Victorian Court of Appeal noted in R v Warrell:^[18]

“These concepts of voluntariness, fairness, and public policy are integral to the operation of our criminal justice system.  They are designed to ensure that any finding of guilt arrived at, on the basis of confessional evidence, is not only reliable but that the evidence itself has been obtained in a socially acceptable fashion.  It is important to keep in mind, in this context, that they are concerned not only with the recognition and protection of the rights of those who may be suspected of the commission of criminal offences, but that any such finding is not surrounded by an aura of possible injustice which compromises both the system and the society which supports it.”

18. [18]
    A confession as well as an item of real evidence (blood) obtained as a result of police deception were excluded on all three grounds in R v Scott; Ex parte Attorney General.^[19] In the present case, however, the applicant places sole reliance on the public policy discretion.  
19. [19]
    Applications for the exclusion of the evidence of a witness (not the accused) for police illegality or impropriety is not unprecedented.  The testimony of an indemnified witness against an accomplice in R v Falzon was excluded on that basis because it was vague, uncorroborated and induced by police threats and promises as well as gross intimidation.^[20] Similar applications were refused by Ireland J in Ho; Tan v DPP,^[21] and by Howie J in R v Lawrence (No 3).^[22]

The public policy discretion

20. [20]
    The possible rejection of confessional evidence by a trial judge, regardless of its reliability, for police misconduct was first acknowledged by Latham CJ in Kempley v R.^[23] However, the genesis of the modern version of the so-called public policy

discretion is Barwick CJ’s statement in R v Ireland that:^[24]

“[E]vidence of facts or things so ascertained or procured [by means of unlawful or unfair acts] is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured.  Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence.”

21. [21]
    The principle is uniquely Australian. It has no counterpart in the English common law,^[25] and instead reflects the rule adopted in Scotland and Ireland against receiving evidence tainted by illegality or impropriety.  That rule operates if admitting would have the effect of denying civil liberties or overriding due process protections, thus offering a positive inducement for State authorities to employ irregular investigative methods against the citizen.^[26] It does not exist “for the sake of frustrating a police illegality, or drawing public attention to it.”^[27] Comparable exclusionary rules in Canada and the United States, by contrast, are based primarily on constitutional guarantees of the right to privacy and the privilege against self-incrimination.^[28] A secondary basis is the need to deter police delinquency from bringing the administration of justice into disrepute.^[29]
22. [22]
    The Ireland discretion applies to all categories of evidence, regardless of voluntariness or overall probative value on the basis that reliability and weight are questions for the jury, not the judge.^[30] As a matter of principle, however, it operates only to exclude evidence obtained by unlawful, improper or unfair conduct on the part of the investigating or prosecuting authorities.^[31] It is not the means by which police wrongdoing is punished by the courts.^[32]
23. [23]
    Ensuring fairness to an accused or reducing the chances of a wrongful conviction is relevant to, but not the “central point” of, the discretion.^[33] Instead, as Stephen and

Aitken JJ pointed out in Bunning v Cross, the chief aim of the discretion is:^[34] “… to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and 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.”

Its primary role is to ensure that convictions were not obtained at “too high a price” in reliance on evidence which, on balance, would be better to reject in the overall public interest.^[35] In other words, to justify an exercise of the discretion, the undesirability of admitting has to outweigh the desirability of not doing so.        

24. [24]
    In Pollard v R Deane J went as far as saying that the courts have a duty not to condone the undesirable effect of unlawful conduct on the part of the police by giving curial approval or “an appearance of judicial acquiescence”.^[36] His Honour

also, apparently for the first time, expressly drew attention to:^[37]

“… the threat which calculated disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice.” 

25. [25]
    Mason CJ, Deane and Dawson JJ applied the policy discretion by extension in Ridgeway v The Queen,^[38] where the offence, and not just proof of it, resulted from police entrapment.  Their Honours enlarged the conceptual basis of Deane J’s “institutional approach” in Pollard to encompass the maintenance of public confidence in the integrity of the courts,^[39] and the protection of the processes of the courts from being “put in motion for a purpose which, in the eye of the law, it is not intended to serve”.^[40]
26. [26]
    More recently, the proper approach to be adopted, at least in cases involving voluntary confessions to covert police agents, was held by Toohey, Gaudron and Gummow JJ in  R v Swaffield; Pavic v The Queen^[41] to be to apply:

“…an overall discretion which might take account of all the circumstances of the case to determine whether the admission of evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards”.

The “contemporary community standards” referred to have since been described as being “the maintenance of the rule of law in a liberal democracy, the elements of the proper administration of justice and the due requirements of law enforcement.”^[42]

27. [27]
    Thus, by the end of the 1990s the policy discretion had various rationales and was being employed for multiple purposes.  These included maintaining public confidence in the administration of justice and reflecting accepted community standards,^[43] preventing the adverse effects of “curial approval” being obtained from unlawful police conduct,^[44] and ensuring that the courts’ processes are not abused^[45] or otherwise “demeaned by the uncontrolled use of the fruits of illegality in the judicial process”.^[46] However, the “real point” of the discretion, according to JRS

Forbes, is that:^[47]

“…it would be bad for the executive area of justice, and undignified for the judicial branch, if courts readily turned a blind eye to the collection of evidence by unlawful or disreputable means.” 

Arguably, the end it truly serves is to ensure that “…a citizen’s precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may remain unimpaired.”^[48]

The intercepted conversations

28. [28]
    As mentioned, the prosecution intends to adduce evidence of incriminating statements allegedly made by the applicant in conversations with Dunn during calls from and diverted to the intercepted mobile service (029) between 28 May and 1 June 2009.
29. [29]
    The first ground of objection the applicant raises relates to the alleged failure to comply with the statutory duty imposed by s 57 of the Telecommunications (Interceptions and Access) Act 1979 (Cth) (“the TI Act”).  The applicant contends that the warrant should have been revoked as soon as it emerged that Dunn, and not the “particular person” mentioned in the warrant, was in possession of service 280.  Notably, however, the issuer of the interception warrant acted under s 46 of the TI Act.^[49] Consequently, the warrant was a “telecommunications service” warrant, as distinct from a “named person” warrant.^[50]
30. [30]
    Moreover, as the prosecution points out, Dunn’s assertion in his first interview on 27 May 2009 gave police more, not less, reason to think that the named person might make use of that service by making calls to, rather than from, it.^[51]  Accordingly, the warrant was not invalid at the time the relevant conversations were intercepted.  This means that the recordings were not illegally obtained.
31. [31]
    The second problem with the reception of the interceptions suggested by the applicant stems from the diversion of calls to number 029 to the intercepted service 280 after the interception warrant had issued.  The diversion enabled police technicians to listen to and record “telecommunications” (defined in s 5 to include “conversations”) to both numbers.  In the applicant’s submission, the interception of the diverted conversations was not done “under a warrant” within the meaning of s 7(2) of the Telecommunications (Interceptions and Access) Act 1979. According to the applicant’s submission, it was therefore unlawful by operation of the prohibition found in s 7(1)(b) against authorising, suffering or permitting another person to intercept a “communication passing over a telecommunications system.”
32. [32]
    Properly construed, however, the warrant expressly authorised interceptions of communications, that is, conversations “made to or from” service 280.  It is immaterial, in my view, that two of the calls allegedly made by the applicant to 029 were diverted to 280 without his knowledge.  
33. [33]
    In a practical sense, the diversion had the effect of an incoming communication intended for 029 being made to 280.  A communication in the nature of a conversation made to or from service 280 was within the scope of the authority given by the warrant, irrespective of the caller’s intention – for example, to contact Dunn on a different service.  The warrant authorised police to intercept and record

“communications made to or from” service 280.^[52] The means by which such a communication was made – that is, via service 029 – is irrelevant.  Each of the relevant conversations was a communication “made to or from” service 280 within the terms of both s 46 of the Telecommunications (Interceptions and Access) Act

1979 and the warrant.  It follows that, contrary to the applicant’s contention, the intercepted conversations were not improperly obtained and are admissible, despite any infringement of the applicant’s privacy rights.

The induced statement

34. [34]
    Police apparently always intended to charge Dunn with a drug offence of some kind.  However, they regarded him as a low-grade player in the importation ring and decided to use his induced activities (including his confession, intercepted conversations, and participation in the controlled delivery) to “get the high-end” targets.  While Dunn was not at risk of prosecution for offences related to any of the induced activities, they might have been used in proof of his prior offending.  In these circumstances, police believed that the ordinary criminal investigation procedures and protections were inapplicable.
35. [35]
    Consequently, the process of obtaining the induced statement between 27 May and 2 June was not electronically recorded as required by s 23V of the Crimes Act 1914 (Cth), and no s 23F Crimes Act warning was given.  As the weekend progressed, however, the status of the induced statement changed to a voluntary confession with the apparent agreement of Dunn’s lawyer.^[53] Dunn was asked to adopt the induced statement on 2 June 2009 under “full rights and warning”.  This was done so that the statement would be potentially admissible in any proceedings against him, and to give it added weight in the case against the applicant.

Is the exclusionary discretion enlivened?

36. [36]
    An adverse finding against police of improper investigative conduct does not, of itself, engage the discretion.  As with illegal conduct, the discretion will only arise if the conduct itself procures either the commission of or evidence of the offence an accused is charged with.  The discretion arises then because allowing the use of the evidence so procured may appear to encourage or approve of investigative misconduct and thus compromise the court’s commitment to upholding the law.^[54]
37. [37]
    Dunn was probably induced to turn police informer and agent by hope of advantage, promise of reward, and, to a degree, fear of the consequences of not doing so.  To that extent the induced statement was “involuntary”.  However, that does not of itself make it evidence illegally or improperly procured by police so as to engage the policy discretion.  As Brennan CJ pointed out in Collins v R in relation to involuntariness:

“[M]otives to confess, like motives for many human actions, may be mixed and if there be a congeries of motives it is necessary to determine whether the confession would not have been made (at all) but for pressure…or some fear of prejudice or hope of advantage induced by a person in authority, or whether the making of the confession is really to be accounted for by motives…not referable to such pressure, fear or hope.”^[55]

This is a matter of fact and degree to be determined by assessing the practical effect of the particular circumstances on the will.  

38. [38]
    Dunn was a willing, if not enthusiastic, police informer and undercover agent, activated by his own legal advice, self interest and, to a lesser extent, feelings of remorse.  To my mind the evidence thus obtained is, as Mr Rice QC put it in submissions, the product of Dunn’s “willingness to give it”.^[56] This was manifested from the time he was detained through to when the statement was signed on 23 June 2007, and included his guilty plea and appearance as a prosecution witness at the applicant’s committal hearing.^[57] That willingness appears undiminished even now.
39. [39]
    In my opinion, Dunn’s testimony is admissible against the applicant because, unlike the situation in Falzon, it was the product of a free choice to assist police in the hope or expectation of a personal benefit.  It was not bullied out of him.  It is corroborated and is detailed, not vague.
40. [40]
    Even if the challenged evidence was proven to have been procured by police, to be successful, the applicant still needs to establish some illegality or impropriety.

Was there any police illegality or impropriety?

41. [41]
    Conduct is unlawful if a rule of law (statutory or otherwise) is disobeyed or a legal requirement is unmet.  An example is unauthorised detention for questioning.  The use of telephone intercepts not properly authorised by law is another.  However, merely failing to satisfy a pre-condition for the exercise of investigative authority or power (such as not warning a suspect before questioning) is not unlawful but may be improper.  Conduct that is not illegal will be improper for purposes of the policy discretion:

“…only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, among other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, [and] the difficulty of effective investigation…”^[58]

Thus, inducing or deceiving an “unwary” suspect into incriminating himself and others where he or she would probably not have done so had the investigation been conducted regularly may constitute an improper use of police authority.^[59]

42. [42]
    The applicant’s argument that the ends do not justify the means assumes that the evidence constitutes a forensic disadvantage which he would not have had to face but for the improper circumstances involved in obtaining the statement.  These circumstances include:

    1. inducing an involuntary statement;
    2. tricking Dunn into unwittingly surrendering his right to silence by holding out false hopes of an indemnity; 
    3. exaggerating and misinforming his lawyers about the strength of the evidence against Dunn; 
    4. exploiting Dunn’s confusion and anxiety about his situation; breaching statutory procedural requirements; 
    5. denying access to confidential legal advice; 
    6. raising the prospect of a lower sentence; and 
    7. taking unfair advantage of the special vulnerability of being held in de facto custody for a week.
43. [43]
    The issue of voluntariness usually only arises in the context of questions of admissibility about a confession tendered against its maker.  Nonetheless, it provides a useful conceptual framework and practical guide to assessing Dunn’s treatment by police for the purpose of applying the public policy discretion and determining, in effect, the admissibility of a “confession” to be used as a basis for oral evidence against the applicant rather than the maker.   
44. [44]
    Evidence is not “involuntary” simply because it was induced by police promises, pressure, or even a degree of deception.  Nor is it improper in enforcing the criminal law for police to persuade an accomplice to give up his principles in circumstances where he may have been confused, anxious or vulnerable and not fully appreciative of the full significance of what he was doing or saying.  As Gleeson CJ noted in Tofilau v the Queen, the law treats as voluntary a great deal of conduct which a person, despite being unwilling, may have been legally obliged to engage in.^[60] In choosing to reveal rather than conceal what he knew about the applicant’s illegal drug activities, Dunn no doubt succumbed to some psychological pressure.  However, the pressure was as much, if not more internal than external.  
45. [45]
    Even if the induced statement was involuntary or improperly procured by police, it does not necessarily follow that it cannot be used in court to prosecute the applicant or others.  It would be unusual for a court to refuse admission to a voluntary confession on public policy grounds for police impropriety alone.  As Brennan J said in Collins v R:^[61]

“[I]t is difficult to conceive of a case – though I do not say such a case could never arise – where a voluntary confession which might fairly be admitted against an accused person would be rejected in the public interest because of unlawful conduct leading to the making of the confession. ... [I]t would be only in a very exceptional case that the residual question would arise as to whether the public interest requires the rejection of the confession.”   

Inducement alone might lead to the rejection of the voluntary admissions and incriminating statements implicating co-offenders because of the unacceptable risk of unreliability or unfairness, but only exceptionally for impropriety or illegality.  

46. [46]
    There is no factual basis for a finding that police offered or inspired the unrealistic hope of an indemnity.^[62] Any realistic possibility of a transactional indemnity from prosecution was short-lived.  As early as 28 May 2009, Dunn’s lawyer was telling him that the chances of an indemnity were bleak and that he might be better off putting his resources into running a defence.^[63] Dunn conceded at committal that, while he never gave up hope, he did not really ever think he was going to get an indemnity.  On this basis, I am reasonably satisfied that Dunn’s cooperation was not contingent on indemnity offers.
47. [47]
    By 29 May 2009 Dunn’s lawyer was telling him that “they’ve got you and “they are [going to] charge you” and “you’re going to wind up having a little bit of time to serve no matter what”.^[64] Undeterred, Dunn sought reassurance from his solicitor that he had “done the right thing” in agreeing to participate in the controlled delivery planned for 2 June 2009.^[65] He was told that “…as you’ve made the choice…you’re helping yourself at the end of the day”^[66] and “…sleep well tonight knowing that you are doing the right thing, you’re helping yourself.”^[67]
48. [48]
    The day before the controlled delivery, police confirmed that “people who do cooperate with the police, who assist police, especially, like you’re doing in furthering an investigation, providing evidence, all that kind of stuff, do get a discount of their sentence”.^[68] This is not an example of police impropriety.  Viewed in context, it is not clearly inconsistent with or contrary to minimum law enforcement standards.  
49. [49]
    Even when told of the changed legal status of the induced statement, Dunn remained “happy to help” in providing the statement and making the controlled delivery.^[69] Similarly, on 2 June when he was interviewed on the record under caution and with the benefit of legal advice Dunn confirmed the truth of the induced statement and his intention to “continue on” with helping police.^[70]
50. [50]
    As Mr Rice QC points out, the evidence clearly shows that, with the encouragement and support of his own lawyer, and so long as he was maximizing his chances of a lesser charge or lighter sentence, Dunn was prepared to fully and freely cooperate with police.  This was regardless of whether or not he was going to be indemnified, charged, cautioned or recorded.
51. [51]
    The failure of police to tell Dunn on 28 May 2009 that participation in intercepted conversations with the applicant and the controlled delivery might implicate and later be used against him and/or the applicant in court contrary to sections 23F and 23V of the Crimes Act was not illegal or improper.  There was no contravention or infringement of a statutory obligation or investigative control mechanism. 
52. [52]
    Section 23F(1) imposes a duty on officials to remind suspects of the right to silence protection before questioning them.  Section 23V is concerned only with admissibility.  It is not a precondition to the exercise of investigative power.  It does not appear that either section is intended to extend to potential witnesses providing a statement under inducement in support of an application for indemnity or a reduced sentence.^[71]
53. [53]
    In any event, pursuant to subsection 23V(5), evidence to which s 23V applies may be admitted despite noncompliance if it would not be contrary to the interests of justice to do so.  The only practical consequence of a failure to warn or record is the same as the effect of an inducement: anything of an incriminating nature said or done by Dunn could not be used against him.^[72] Further, the failure to warn in an earlier interview can be made good in a later interview.^[73] It follows that same can be done in respect of an induced statement.
54. [54]
    Neither the police nor Dunn induced the applicant to do anything he did not already intend to do.  Any forensic disadvantage to him is the consequence of his own actions, and does not stem from the circumstances in which Dunn’s evidence was obtained by the police.^[74] The applicant has not made out a case of illegal or improper procurement of evidence by police. Even if he had, illegality does not result in automatic exclusion of challenged evidence.^[75]
55. [55]
    It is in the overall public interest for law enforcement to be effective and efficient and for criminals who are caught to assist police to bring their accomplices to justice.  The “real evil” the discretion is aimed at is the “deliberate or reckless disregard of the law” in obtaining criminal evidence.^[76] I am not satisfied that the investigative methods employed by police in relation to Dunn crossed “the line of forbidden conduct” in the Swaffield and Pavic sense.^[77] That is, the evidence was not obtained “…in unfair derogation of [the right to silence, nor was the statement one] which would not otherwise have been made.”^[78]

The exclusionary considerations

56. [56]
    As Pincus JA pointed out in R v Davidson and Moyle; ex parte A-G:^[79]

“It [is] not and has never been the law [in Australia] that police are not entitled to resort to deception and trickery in pursuing their investigations:  ‘The effective investigations by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creations of opportunities for the commission by a suspect of a criminal offence.  When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity…’” 

57. [57]
    Cogency will not excuse deliberate or reckless illegality or impropriety, but heavily influences the admissibility issue in other cases.  Where derivative evidence (here, the intercepted telephone conversations) logically confirms the truth of disputed oral testimony, the risk of a wrongful conviction is reduced.  The mutually corroborative effect of the evidence is more likely to result in the admission of both rather than the exclusion of either.
58. [58]
    The gravity of the offence is also a material consideration, and, generally speaking, past applications of the policy discretion reveal that the likelihood of reception increases according to the seriousness of the alleged crime compared to the nature and degree of any investigative irregularity.  A more lenient approach will be taken when the detection of major crime by conventional means is difficult and the methods used were the most (or only) practical way of bringing a wrongdoer to

justice.^[80]

59. [59]
    The administration of justice would not be demeaned in the present case by allowing the prosecution to use the challenged evidence.  Dunn is a willing, if not eager, prosecution witness.  He does not himself criticise or complain about his treatment at the hands of investigators, and there is, as already mentioned, a strong public interest in encouraging accomplices to assist police to catch their partners in crime and help in prosecuting them for serious offences inimical to the overall welfare of the community.