R v BJM[2022] QSC 307

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant was arrested on 3 April 2020 for attempted murder.  Queensland Police arranged with its Covert Operations Unit for a law enforcement participant (“LEP”) to be in the watchhouse holding cell into which the applicant was placed. 
2. [2]
   The applicant and the LEP conversed and the applicant made certain admissions.
3. [3]
   The applicant applies to have evidence of the recorded conversation at the watchhouse between him and the LEP excluded from his trial for attempted murder (Indictment No 1223/21) and from his trial for drug offences (Indictment No 1282 of 2020).  He seeks the exclusion of the recorded conversation on three grounds.  He submits:

1. It is unfair and against the interests of justice to admit evidence of the conversation as it amounted to an “impermissible curtailment” of his freedom to choose to speak to police: reliance is placed on the decisions of the High Court in The Queen v Swaffield and Pavic v The Queen.^[1]
2. The public policy discretion should be exercised to exclude evidence of the conversation.
3. The prejudicial effect of the evidence substantially outweighs its probative value: particular reliance is placed on what is said to be the poor quality of the audio recording with parts of it being indistinct or inaudible.

4. [4]
   In reply, the respondent submits: 

1. Swaffield is distinguishable because after that decision the Police Powers and Responsibilities Act 2000 (Qld) (“PPRA”) was enacted to regulate police questioning, has replaced the Judges’ Rules upon which Swaffield was based, and provides that the provisions of the PPRA governing questioning for indictable offences do not apply to “functions of a police officer performed in a covert way”,^[2] as occurred here. 
2. In any case, the unfairness discretion should not be exercised in circumstances in which the applicant spoke voluntarily, and was not subject to interrogation or other conduct that was unfair or improper or which made his statements unreliable.
3. There was no illegal or improper conduct by police that would make it appropriate to exercise the public policy discretion to exclude.  This includes the fact that the police who arranged for the LEP to be in the watchhouse cell in order to converse with the applicant believed that such a practice was legal.
4. The quality of the recording is reasonably good with the overwhelming majority of its contents being able to be heard and understood.  The few indistinct words do not affect matters of substance and do not call for the exclusion of the conversation pursuant to s 130 of the Evidence Act 1977 (Qld) or under what is often called the Christie discretion. 

The issues

5. [5]
   The application raises the following substantial issues:

• Were the watchhouse admissions illegally obtained?
• Were the watchhouse admissions improperly obtained?
• Should the unfairness discretion be exercised?
• Should the public policy discretion (or the broader discretion discussed in Swaffield) be exercised?
• Do occasional difficulties with the audibility of the recorded conversation justify exclusion of the recorded conversation on the ground that the prejudicial effect of the evidence substantially outweighs its probative value?

Facts

6. [6]
   On 6 November 2019, a woman was shot in the face when she came to her front door.  Police investigations indicated that she was the mistaken target of an act of revenge by the applicant, who went to the wrong house. 
7. [7]
   On 10 November 2019, police executed a search warrant in relation to the attempted murder.  The applicant was told of his right not to answer questions and was given the opportunity to speak to a friend, a relative or a lawyer.  He declined those opportunities and spoke to police.  He denied being involved in the 6 November shooting. 
8. [8]
   During the search the applicant participated in questioning about various drug-related items found on the premises.  At one point the applicant asked to speak to his lawyer and the questioning ended.  He was taken to a police station and declined to be interviewed, after which he was charged with drug related offences and granted bail. 
9. [9]
   Police investigations continued into the shooting.  Police planned to arrest the applicant at around 7:30 am on 3 April 2020 and made a request for an LEP to be utilised when the applicant was placed in a watchhouse cell.
10. [10]
    The officers involved in the investigation understood that such a covert method was legal.  That belief was reasonable because, as noted, the provisions of the PPRA about police questioning for indictable offences do not apply to a police officer performing functions in a covert way.  The relevant officers’ training did not suggest to them that the planned course of action was illegal or improper. 
11. [11]
    At 7:35am police attended at the applicant’s home.  He was arrested for attempted murder.  He was cautioned and asked to speak to his lawyer.  He was taken at 7:42am to the Brisbane City Watchhouse, arriving there at 8:25am. 
12. [12]
    Shortly before his arrival police had arranged for the LEP to be placed into a cell, and at 8:42am the applicant was placed into the same cell.  The applicant and the LEP were the only persons in the cell at this time. 
13. [13]
    A conversation between the two ensued.  After being asked if he was sick, the applicant disclosed that he had “snorted heaps of coke last night”.  The applicant asked the LEP what he had been “nabbed for”.  The reply was “doin’ drugs”.  The applicant then stated that he had “got done” for “a half K” and that “last November bro they get me for attempted murder man”.  He made other statements about his “crew” and that the drama “had to do [with] some retaliation and shit”.  The applicant said that he thought he “might be able to beat it”.  Other admissions were made.
14. [14]
    At 9:30am the applicant was removed from the cell to allow him to contact his lawyer.  He was able to do so by telephone and after this conversation he declined to be interviewed.  He was placed back in the cell and resumed the conversation with the LEP.
15. [15]
    The conversation was not in the nature of an interview with the applicant, let alone an interrogation.  The LEP did not badger the applicant or press him to answer questions.  The discussion had a conversational tone, and included open questions from the LEP such as “What happened, bro?”. 
16. [16]
    The LEP did not boast about his own criminal exploits or say things in a way that might be said to have induced the applicant to “big note” himself, exaggerate what he had done, make false claims or otherwise say things that were unreliable. 
17. [17]
    I find that the applicant spoke voluntarily to the LEP, believing the LEP to be at the watchhouse after being arrested for involvement in drugs.

The right to silence

18. [18]
    What right or interest is being protected by the discretions to exclude in cases of covertly recorded conversations with undercover police officers or other informants acting in conjunction with police?  A simple answer is the “right to silence”.  However, the “right to silence” is a confusing term because it may be used in several different ways.^[3] 
19. [19]
    Insofar as the applicant argues that the police curtailed his “right to silence” it is necessary to be clear about what that right is and the respects in which the discretions to exclude protect it. 
20. [20]
    The right of an individual to remain silent in response to police questioning is, on one level, the same freedom that any individual has not to answer a question posed by a fellow citizen about any subject, for instance an innocuous inquiry about the time of day.  The “right to silence” may refer, instead, to the immunity possessed from being compelled to answer questions by police or others in a position of authority.  In some contexts it may relate specifically to a suspect.  In some contexts, the “right to silence” may have additional force because answering the questions may tend to incriminate and thereby attract the privilege against self-incrimination.
21. [21]
    The general concern is with individuals feeling compelled to answer police questions when they have a legal right not to do so.  The compulsion to answer may be from an official who is specifically authorised to demand answers on pain of punishment, but the relevant power does not abrogate the privilege against self-incrimination.  The compulsion may be circumstantial, rather than arise from a statutory power to compel answers.  It may arise from the fact that the questioner is a person in authority and the individual feels compelled to answer questions because of that fact, their relative powerlessness, the risk of being arrested if they do not answer, or the fact that he or she is in custody.
22. [22]
    Most questioning by police does not involve the exercise of a statutory power to demand answers on pain of punishment for failing to do so.  It typically involves a different form of compulsion that arises from questions being asked by a person in authority. 
23. [23]
    The principle that an individual’s “right to silence” should be freely exercised in response to questioning by police and other persons in authority led to the development of rules of evidence, judicial discretions, the Judges’ Rules, and codes and laws governing police questioning.  These include cautions, requirements to inform individuals of their rights, and provisions like s 418 of the PPRA that was relied upon in this application.
24. [24]
    Rules of evidence and judicial discretions have different rationales and historical developments.  And a single rule may have more than one justification.^[4]
25. [25]
    More than one justification exists for a “right to silence” in response to police questioning. 
26. [26]
    One purpose is to prevent abuse of power.  If police and other officials believe that they have the right to demand an answer, then they may come to believe that they have the right to demand the answer they want: an admission.  This encourages improper practices.  As Wigmore states:^[5]

“Any system of administration which permits the prosecution to trust habitually to compulsory self-disclosure as a source of proof must itself suffer morally thereby.  The inclination develops to rely mainly upon such evidence, and to be satisfied with an incomplete investigation of the other sources … If there is a right to answer, there soon seems to be a right to the expected answer, - that is to a confession of guilt.  Thus the legitimate use grows into unjust abuse; ultimately, the innocent are jeopardised by the encroachments of a bad system.  Such seems to have been the course of experience in those legal systems where the privilege was not recognised.”

27. [27]
    An associated concern is that impropriety, including oppressive conduct, may render confessions less reliable or unreliable.
28. [28]
    A different justification for the right to silence is the idea that no one can be required to be their own betrayer.^[6]  It is a cardinal principle that the Crown must prove the guilt of an accused person. In Sorby v The Commonwealth,^[7] Gibbs CJ stated “the protection which that principle affords to the liberty of the individual will be weakened if power exists to compel a suspected person to confess his guilt”.  This principle was stated by Frankfurter J:^[8]

“Ours is an accusatorial system, a system in which the state must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth.”

29. [29]
    There may be other rationales for the privilege against self-incrimination, or what is more loosely described as the “right to silence”, based on the dignity of the individual.^[9]  According to McHugh J in Azzopardi v The Queen,^[10] the “so-called right to silence is merely an incident of or a consequence of certain immunities enjoyed by a person accused of an offence.  Those immunities are derived from the privilege against self-incrimination”.  Different rationales for the privilege against self-incrimination have been identified over time.^[11]  They fall into two broad categories.  One is based on respect for human dignity.  The other is systemic and seeks to achieve policy goals, such as preventing abuse of power and maintaining the accusatorial system of criminal justice.^[12] 
30. [30]
    The aspect of the unfairness discretion considered by Toohey, Gaudron and Gummow JJ in Swaffield and the broader discretion to exclude evidence obtained at a price that is unacceptable according to community standards might be justified by reference to the “right to silence” in the sense of a freedom to choose to speak to police.  However, as will appear, the exercise of that discretion does not follow as a matter of course because the freedom to remain silent when asked by police to answer questions has been avoided, subverted, not respected, or nullified.  Covert operations that continue after a suspect has chosen not to be interviewed may be said to undermine the suspect’s freedom of choice.  Yet, they do not necessarily lead to exclusion of admissions made in response to questions by undercover police or by informants acting in conjunction with police.
31. [31]
    The resolution of this application does not turn on the “right to silence” in some ill-defined or general sense.  According to the majority view in Swaffield, the applicant’s freedom to choose to speak to the police was impugned.  But that does not necessarily lead to exclusion of the evidence.

Three discretions

32. [32]
    The admissibility of admissions or confessions depends on two strict rules and on the operation of three discretions.^[13]  This application is not concerned with the two rules that concern an inducement held out by a person in authority or “basal involuntariness”.
33. [33]
    The public policy discretion to exclude illegally or improperly obtained evidence weighs two competing policies: bringing to conviction a wrongdoer and the undesirable effect of judicial approval or even encouragement being given to unlawful or improper conduct by law enforcement officers.^[14]
34. [34]
    The unfairness discretion arises when in all the circumstances it would be unfair to admit the evidence against the accused.^[15]  The question is not whether the police have acted unfairly.  Unfairness, in this sense, is concerned with an accused’s right to a fair trial.  That right may be jeopardised if a statement is obtained in circumstances that affect its reliability.^[16]  The unfairness discretion is not limited to cases of unreliability and may be engaged by improper conduct.  For instance, had a police investigation been properly conducted, the statements of an accused might not have been made or not been made in the form in which they were made.^[17]
35. [35]
    In the case of alleged police misconduct in obtaining evidence, the line between unfairness and policy may become blurred.^[18]  In such a situation, it may be argued that there is a single discretion.^[19]  The better view is that although the circumstances of a case may engage both discretions, and, in that sense the two discretions will overlap, the focus of each discretion is different.^[20]  The purpose or purposes of each discretion is different.
36. [36]
    Often it will be convenient to address first the question of whether the evidence should be excluded on the ground that its use in evidence would be unfair to the accused.  But a consideration of the nature and extent of the conduct of the police in the context of the public policy discretion may clarify its significance for the fairness discretion.^[21]
37. [37]
    The third discretion, reflected in s 130 of the Evidence Act 1977 (Qld) and sometimes described as the Christie discretion, may be exercised to exclude evidence, the prejudicial effect of which exceeds it probative value.  The term “prejudice” in this context comprehends the danger that the jury may use the evidence improperly in a way that goes beyond its probative value.^[22]  The discretion to exclude evidence may be exercised only where the evidence has relatively slight probative value and a substantial prejudicial effect other than its effect in proving the offence.^[23]

The nature of a discretion and its exercise

38. [38]
    A particular discretion to exclude otherwise admissible evidence may be engaged by proof of a fact or facts, for instance by illegal or improper conduct in obtaining the evidence.  If the discretion is engaged then the court is required to consider its exercise.  In doing so, factors that are relevant to the particular discretion in the circumstances are assessed and weighed, and a decision is made whether or not to exercise the discretion to exclude. 
39. [39]
    As noted, the applicant seeks the exclusion of the recorded conversation between him and the LEP in the exercise of the unfairness discretion on the ground that the conversation amounted to an impermissible curtailment of his freedom to choose to speak to police, and also in the exercise of the public policy discretion on the basis that the evidence was illegally or improperly obtained.  I have found that the evidence was not illegally obtained.  The alternative basis upon which the public policy discretion may be engaged is that the evidence was improperly obtained. 
40. [40]
    The basis upon which the applicant invites the court to exercise each discretion is essentially the same.  It is that the police improperly curtailed the applicant’s freedom to choose to speak to police in circumstances in which the applicant wished to consult his lawyer before deciding whether or not to participate in an interview with police, and, having spoken to his lawyer, indicated that he did not wish to be interviewed.
41. [41]
    The applicant does not seek to engage the Christie discretion on this basis.  The recorded admissions are probative of the applicant’s involvement in the attempted murder and in drug trafficking and are not “prejudicial” in the sense described.  The Christie discretion is relied on only in a separate argument about the quality of the recording.
42. [42]
    It is convenient to first address the applicant’s reliance on the decisions of the High Court in Swaffield and Pavic. 

Swaffield and Pavic

43. [43]
    Swaffield was charged with unlawfully setting fire to a rowing clubhouse.  He declined to be formally interviewed by police.  In an unrelated undercover drug operation, an undercover officer spoke to Swaffield and pretended that his brother-in-law was in trouble for burning a car.  Swaffield made admissions to the undercover officer of his involvement in the rowing clubhouse fire.  A judge refused to exclude the evidence of the conversation.  The Queensland Court of Appeal, by majority, quashed Swaffield’s conviction and entered a verdict of acquittal.  An appeal by the Crown to the High Court was dismissed. 
44. [44]
    Pavic, a suspect in a murder case, was taken into custody and interviewed by police.  He exercised his right not to answer questions.  The police believed that Pavic had committed the murder but did not charge him at that stage.  Additional evidence from an informant, Clancy, led police to believe that they had enough evidence to charge Pavic with murder.  However, the police arranged for Clancy to speak to Pavic and to record their conversation.  In the conversation Pavic admitted to being involved in the murder.  The trial Judge declined to exclude the conversation.  Pavic’s appeals to the Victorian Court of Appeal and to the High Court were dismissed. 
45. [45]
    The appeals to the High Court in Swaffield and Pavic were heard together.  The High Court ruled that notwithstanding the fact that an admission was made voluntarily it may be excluded because of issues about its reliability, unfairness or public policy. 
46. [46]
    Brennan CJ stated:^[24]

“If the confession is voluntary and apparently reliable, the only unfairness to an accused in admitting his confession against him is that he was induced to make the confession by conduct which is contrary to statute or to public policy.  For example, if a confession is obtained in breach of an important statutory directive to law enforcement officers or by their deliberate or reckless disregard for the law or for proper standards of conduct, the public interest may require the rejection of a voluntary and apparently reliable confession.”

47. [47]
    As to Swaffield’s “right to silence”, Brennan CJ observed that it would be “a mistake to assume that there is some general ‘right to silence’ wider than or different from the privilege that any person enjoys not to answer questions asked of him about an alleged offence by persons in authority …”.^[25]  The Chief Justice recognised that there is “a public interest in ensuring that the police do not adopt tactics that are designed simply to avoid the limitations on their inquisitorial functions that the courts regard as appropriate in a free society”.^[26]  A majority of the Queensland Court of Appeal had given great weight to that interest.  Brennan CJ observed that against that interest, the public interest in having Swaffield’s admissions available to the Court on his trial for arson had to be weighed.  Pincus JA, who dissented in the Court of Appeal, took a different view about where the balance rested.  Brennan CJ observed that there was “much to be said” for either view.^[27]  Because either view of where the balance between public interests rested was open, Brennan CJ concluded that it was undesirable for the High Court to intervene.
48. [48]
    In Pavic’s case there was no impropriety in the police obtaining a recording by Clancy of his conversation with Pavic.  A serious crime had been committed and the means adopted for securing evidence against the prime suspect were “quite legitimate”.^[28]  Brennan CJ stated:^[29]

“The investigation of crime is not a game governed by a sportsman’s code of fair play.  Fairness to those suspected of crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation or the giving of a sufficient opportunity ‘to invent plausible falsehoods’.”

49. [49]
    Toohey, Gaudron and Gummow JJ found that one aspect of the fairness discretion is to protect against forensic disadvantages which might be occasioned by the admission of improperly obtained confessional statements.^[30]  Their Honours analysed decisions about secretly recorded conversations, including the Canadian cases of R v Hebert^[31] and R v Broyles.^[32]  Historically, courts had spoken of “compulsion to speak”.^[33]  However, in reliance on the Canadian cases, Toohey, Gaudron and Gummow JJ preferred an approach that looks to “the accused’s freedom to choose to speak to the police and the extent to which that freedom has been impugned”.^[34]  They stated:^[35]

“Where the freedom has been impugned the court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations.”

50. [50]
    Kirby J adopted a similar approach to the reception of evidence of covertly recorded conversations.  This requires the “general atmosphere of a conversation” to be considered in assessing fairness.^[36]  Account also is taken of the way in which the confession was made and, in particular, “whether it can be said to have been elicited by interrogation and questioning directed at procuring a confession”.^[37]
51. [51]
    The concept of elicitation was discussed by the Supreme Court of Canada in the decisions that were relied upon by Toohey, Gaudron, Gummow and Kirby JJ in Swaffield.  The Supreme Court of Canada in Broyles^[38] held that two sets of factors should be taken into account:

“The first set of factors concerns the nature of the exchange between the accused and the state agent. Did the state agent actively seek out information such that the exchange could be characterised as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarily have done? The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation.

The second set of factors concerns the nature of the relationship between the state agent and the accused. Did the state agent exploit any special characteristics of the relationship to extract the statement? Was there a relationship of trust between the state agent and the accused? Was the accused obligated or vulnerable to the state agent? Did the state agent manipulate the accused to bring about a mental state in which the accused was more likely to talk?”

52. [52]
    In Swaffield, Kirby J stated that the critical question “is not whether the accused has been tricked and secretly recorded”.^[39]  He also stated:

“Subterfuge, ruses and tricks may be lawfully employed by police, acting in the public interest.”^[40]

53. [53]
    According to Kirby J, the issue is “not even whether the trick has resulted in self-incrimination, electronically preserved to do great damage to the accused at the trial”.^[41]  The issue is whether “the trick may be thought to involve such unfairness to the accused or otherwise to be so contrary to public policy that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value”.^[42]
54. [54]
    Kirby J ruled that in the case of covertly obtained confessions:^[43]

“… the line of forbidden conduct will be crossed if the confession may be said to have been elicited by police (or by a person acting as an agent of the police) in unfair derogation of the suspect's right to exercise a free choice to speak or to be silent. Or it will be crossed where police have exploited any special characteristics of the relationship between the suspect and their agent so as to extract a statement which would not otherwise have been made.”

55. [55]
    The Canadian authorities upon which Toohey, Gaudron, Gummow and Kirby JJ relied include the following passage from the judgment of McLachlin J (with which Dickson CJ, Lamer, La Forest, L’Heureux-Dubé, Gonthier and Cory JJ concurred):^[44]

“When the police use subterfuge to interrogate an accused after he has advised them that he does not wish to speak to them, they are improperly eliciting information that they were unable to obtain by respecting the suspect's constitutional right to silence: the suspect's rights are breached because he has been deprived of his choice. However, in the absence of eliciting behaviour on the part of the police, there is no violation·of the accused's right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police.”

Relevant principles derived from Swaffield and Pavic and later authorities

56. [56]
    The decisions in Swaffield and Pavic have been considered by numerous courts.  They include the High Court’s decision in Tofilau v The Queen^[45] and decisions of intermediate courts of appeal such as R v Juric,^[46] Pavitt v The Queen^[47] and R v Belford and Bound.^[48]  The relevant principles derived from these authorities include the following in respect of secretly recorded conversations between an accused and an informant (who in some circumstances is found to be “an agent of the State”):

1. The underlying consideration is the extent to which the accused’s freedom to choose to speak to the police has been impugned.^[49]
2. Where the freedom has been impugned the court has a discretion to reject the evidence.
3. In deciding whether to exercise that discretion, the court will look at all the circumstances. 
4. The fact that the accused has declined to participate in an interview with police, or that police anticipate the accused will choose not to speak to police when asked to do so, is a relevant factor.  It is not, however, decisive as illustrated in cases such as Pavic in which the accused had earlier exercised his “right to silence”.
5. The fact that an accused is in custody, awaiting trial, will not, without more, require the exclusion of covertly taped confessional evidence.^[50] 
6. Relevant factors include:
   1. whether the conversation was the functional equivalent of an interrogation;
   2. the nature of the relationship between the State agent and the accused, and whether the State agent exploited it; and
   3. the relative power of the parties to the conversation.^[51]

57. [57]
    As to 6a, the mere fact that the exchange includes the asking of questions does not mean that the conversation amounts to the functional equivalent of an interrogation.^[52]
58. [58]
    As to 6b, the fact that the parties to the conversation have a pre-existing relationship, as in Pavic, is not sufficient to require the discretion to be exercised.^[53]  The relationship may be one in which the accused felt obliged to the State agent or was vulnerable to manipulation by the State agent to make incriminating statements.

The use of deception

59. [59]
    The use of deception is not a critical factor.  Subterfuge, ruses and tricks may be lawfully employed by police, acting in the public interest.  As Gleeson CJ stated in Tofilau:^[54]

“The use of undercover police operatives always involves deception. Such operatives are undercover precisely because they are trying to deceive somebody about something.”

60. [60]
    Chief Justice Gleeson went on to observe:^[55]

“… many forms of undercover police activity, and of covert surveillance, involve attempts to gain information from people who, if they were aware of what was going on, would remain inactive or silent. There is a sense in which it can be said that intercepting a telephone conversation, or secretly recording an interview, always deprives a person of the opportunity to remain silent in circumstances where, if the person had realised that he or she was under observation, the person would have remained silent. That does not mean that there has been an infringement of one of the legal rules which together make up the right to silence. Nor does it mean that what is being said in the conversation is involuntary. The argument seems to equate the right to silence with a right of privacy, and to treat as involuntary any statement that is made without a fully-informed appreciation of the possible consequences. Neither step is consistent with legal principle.”

61. [61]
    Callinan, Heydon and Crennan JJ in Tofilau considered the question of whether the appellants’ freedom to speak or remain silent had been so influenced by deception, trickery or manipulation that there had been no effective exercise of the freedom.^[56]  That discussion occurred in the context of an argument that the conduct of a person who has been deceived is not voluntary.  Counsel submitted that the deception undertaken by undercover officers was “the functional equivalent of an interrogation of a suspect”, involved “improper means” or was “improper or undesirable”. 
62. [62]
    Their Honours ruled that police trickery by itself does not render a confession inadmissible on the grounds of involuntariness.  Australian authority did not provide a distinct ground for treating confessions as automatically inadmissible on the basis of “appalling police trickery unless the inducement rule is attracted or the conduct is such as to overbear the will of the accused”.^[57]  Their Honours recognised that “appalling police trickery” could trigger a discretion to exclude the evidence.^[58]
63. [63]
    In Tofilau, one of the appellants, Clarke, sought the discretionary exclusion on public policy grounds on the basis that the evidence was improperly obtained, or on the basis of what was described in submissions as a single discretion identified in Swaffield. 
64. [64]
    Reliance was placed upon, among other things, the forensic disadvantages of hectoring questioning,^[59] as well as an argument that the police conduct was inconsistent with Clarke’s fundamental “right to silence”.  That submission was rejected by Callinan, Heydon and Crennan JJ because the admissions were voluntary and because Clarke saw himself as having a choice whether he exercised the “right to silence” for his own purposes.^[60] 
65. [65]
    The relevance of subterfuge to interrogate an accused who has advised that he does not wish to speak to police is that the trick is used to negate a decision not to speak to police.^[61]  However, as McLachlin J stated in Hebert:

“… in the absence of eliciting behaviour on the part of the police, there is no violation·of the accused's right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police.”

66. [66]
    In this context, it is irrelevant that the person to whom the relevant statements are made is an undercover police officer or a police informant.  In Hebert a majority of the Supreme Court of Canada observed that:^[62]

“[T]he right to silence predicated on the suspect's right to choose freely whether to speak to the police or to remain silent does not affect voluntary statements made to fellow cell mates ... This would be the case regardless of whether the agent used to subvert the accused's right was a cell mate, acting at the time as a police informant, or an undercover police officer.”

Unacceptable conduct

67. [67]
    In a case in which it would not be unfair in the circumstances to admit the statement of the accused, the evidence may have been obtained “at a price which is unacceptable having regard to prevailing community standards”.^[63]  Such a case resembles the rationale for the public policy discretion, and may entail a balancing exercise between the public interest in securing the conviction of a wrongdoer, particularly in the case of a serious crime, and the public interest in law enforcement officers not engaging in illegal or improper conduct. 

Were the watchhouse admissions illegally obtained?

68. [68]
    Counsel for the applicant relies upon s 418 of the PPRA.  It provides that before a police officer starts to question a relevant person for an indictable offence the police officer must inform the person that he or she may:

    1. telephone or speak to a friend or relative to inform the person of his or her whereabouts and ask the person to be present during questioning; or
    2. telephone or speak to a lawyer of the person’s choice and arrange, or attempt to arrange, for the lawyer to be present during the questioning. 
69. [69]
    Section 418(2) requires the police officer who proposes to start to question the person about an indictable offence to “delay the questioning for a reasonable time to allow the person to telephone or speak” with a friend, relative or lawyer. 
70. [70]
    If the person arranges for someone to be present, the police officer must delay the questioning for a reasonable time to allow the other person to arrive.^[64]
71. [71]
    Chapter 15 of the PPRA, which regulates questioning by police, does not apply to functions of a police officer performed in a covert way.^[65]  The LEP was performing his functions in a covert way.  Therefore, the powers and responsibilities of those conducting investigations and questioning for indictable offences, including the provisions of s 418, did not apply to any questions that were proposed to be asked, or which were in fact asked, by the LEP. 
72. [72]
    In submitting that there was a breach of s 418, counsel for the applicant acknowledged that s 418 did not apply to covert operatives.  As a result, the LEP was not required to issue cautions and to inform the applicant of his rights.  Instead, the submission was advanced that the breach of s 418 was by the arresting officer, and more generally, by those concerned with the management of the investigation in placing the LEP in the cell with the applicant when regard is had to the applicant’s rights under s 418.
73. [73]
    In the course of argument, counsel for the applicant accepted that insofar as s 418 applied to the arresting officer, he did delay his questioning and complied with s 418 in relation to any such questioning.  Counsel argued, however, that in placing the LEP in the cells before the applicant had an opportunity to obtain advice from his lawyer, the applicant was denied his right to speak to his lawyer.
74. [74]
    Insofar as the applicant relies on s 418 rather than on some broader notion of the right to silence or his freedom to choose to speak to police, I am unable to accept that there was a breach of s 418.  Parliament’s clear intent is that the provisions of Chapter 15, including s 418, do not apply to functions of a police officer performed in a covert way.  As a result, an undercover officer is not required to comply with s 418 before questioning a suspect or to inform or caution the suspect of the suspect’s right to silence.^[66]  Nor, in my view, does s 418 oblige the police to delay the initiation of a covert procedure, such as a conversation between a suspect and a covert LEP, until the suspect has been informed of his rights under s 418 and been given a reasonable time to allow a friend, relative or lawyer to be present during the questioning.  This is because the questioning to which s 418 applies is questioning that is governed by Chapter 15, not questioning by a police officer performing functions in a covert way.
75. [75]
    Section 418 does not apply to a police officer who is engaged in a covert operation, either as a direct participant or as the operation’s manager, irrespective of whether the LEP engages a suspect in conversation in a bar, on a bus or in a cell.  Section 418 does not impose obligations on officers who manage such a covert operation in respect of questioning by an undercover police officer.
76. [76]
    I conclude that the questioning was not in breach of the provisions of the PPRA and was not otherwise illegal. 
77. [77]
    This conclusion addresses the issue of illegality.  It does not address the broader point made by the applicant, in reliance on Swaffield, that the relevant officers who facilitated the applicant speaking with the LEP on 3 April 2020 knew or suspected that the applicant wanted to exercise his right to silence, or at least to consult his lawyer before choosing to speak to the police.  In that regard, s 397 of the PPRA provides that nothing in Chapter 15 “affects the right of a person to refuse to answer questions, unless required to answer the questions by or under an Act”. 

Were the watchhouse admissions improperly obtained?

78. [78]
    This issue arises in respect of the public policy discretion and also in respect of the unfairness discretion.  It raises the question of what is meant by “improper” in those contexts and an associated issue of whether admissions are elicited by means that are “unacceptable having regard to prevailing community standards”.^[67]
79. [79]
    The conduct of the LEP in conversing with the applicant was not improper in ways that often arise in respect of the admission of confessions or that engage the public policy discretion.  The conduct was not oppressive.  There was no element of coercion.  The LEP did not use threats or promises or engage in improper conduct that would call for disciplinary action against the police or call into question the reliability of the admissions made by the applicant.  Instead, the alleged improper or unacceptable conduct consists of the applicant’s “freedom to choose to speak to the police” being impugned.^[68]
80. [80]
    On 3 April 2020, the applicant chose not to speak to the police, at least until after he had consulted his lawyer, and declined to be interviewed after consulting her. 
81. [81]
    The police believed that the use of an LEP who was to be placed in the same cell as the applicant was lawful and proper.  That belief was reasonable.  There was no statutory impediment upon the use of such a covert strategy.  The LEP was not required to identify himself to the applicant as a police officer, to issue a caution to the applicant about speaking to him, or to inform the applicant of his rights under s 418 of the PPRA.  Those controlling the LEP as part of the covert operation were not required to instruct the LEP to do any of those things.
82. [82]
    The judgment of Toohey, Gaudron and Gummow JJ in Swaffield turned in part upon the fact that the undercover police officer did not issue a caution, as required at the time by Rule 2 of the Judges’ Rules.^[69]  The undercover officer’s breach of Rule 2 permitted but did not dictate exclusion of the conversation.
83. [83]
    The conduct of undercover police officers in such cases is no longer regulated in Queensland by the Judges’ Rules.  Legislative enactments since Swaffield provide that the functions of police performing covert operations are not subject to the requirements about police questioning in the PPRA which replaced the Judges’ Rules.
84. [84]
    The police involved in this matter were entitled to believe that their conduct in using the LEP did not breach the law.  It did not in fact do so.
85. [85]
    The use of an undercover police officer to converse with an accused is a long-standing police practice.  The case law is to the effect that it is not necessarily unfair or improper, despite the fact that it may impugn an accused’s freedom to choose to speak to the police.  Instead, any impugning of the accused’s right to choose whether or not to speak to the police gives rise to a judicial discretion to exclude the evidence, depending on all the circumstances.  These circumstances include the extent to which the relevant parts of the conversation were the functional equivalent of a police interrogation.
86. [86]
    In this matter, the relevant parts of the conversation were not the functional equivalent of an interrogation.  The applicant’s counsel fairly acknowledged that they were not and did not criticise the conduct of the LEP as engaging in oppressive or overbearing conduct.  Nevertheless, after the applicant made certain disclosures about the charge of attempted murder that he was facing, the conversation included direct and open questions by the LEP about what happened.  The participants to the conversation also exchanged information about the drug dealing in which each was involved. 
87. [87]
    While the Canadian authorities that were followed by a majority of the High Court in Swaffield indicate that the focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation, I think it appropriate to have regard to both the nature and the content of the exchanges between the applicant and the LEP in deciding whether the police were improperly eliciting information that they were unable to obtain in a formal and recorded interview. 
88. [88]
    I have listened to the conversation and read a transcript of it.  The exchanges were conversational.  The applicant’s involvement in the attempted murder and in drug trafficking were not initially disclosed by him as the result of questioning by the LEP.  They were disclosed by the applicant and became the subject of the conversation. 
89. [89]
    There was no imbalance of power.  The LEP did not present as a seasoned criminal and was content to represent himself as a much smaller fish than the applicant in the business of drug dealing. 
90. [90]
    The applicant and the LEP were not in a pre-existing relationship or any other kind of relationship that enabled the LEP to exploit the relationship or manipulate the applicant.
91. [91]
    The fact that the applicant was in custody might be thought to have placed him in a more vulnerable situation than if the conversation occurred in a bar or on a bus.  The law that governs the discretionary exclusion of evidence in such a case does not create hard distinctions that depend on whether the conversation occurred early in the course of an investigation, following arrest or after being charged.  This may be because the law should not depend on the happenstance of whether police decide to charge in a case in which they believe they have sufficient evidence to charge the accused or delay charging the accused until the covert operation is completed.  Even after an accused is charged, investigations continue, and police may obtain evidence from informants, including prison informants, to whom the accused elects not to exercise the right to silence.  Still, I take account of the fact that the accused was in custody. 
92. [92]
    As noted, the conduct of the LEP was not oppressive so as to call into question the reliability of the relevant statements.
93. [93]
    Although the exchange between the LEP and the applicant was not the functional equivalent of an interrogation, it did impugn what was described in Swaffield as the accused’s freedom to choose to speak to the police.  The conversation was engaged in after the applicant had been cautioned, had chosen not to answer questions by police about the subject of their investigations or to participate in a recorded interview.  Part of it was undertaken during a time at which the applicant was being given an opportunity to consult his lawyer before deciding whether or not to participate in an interview with police.  Some of the conversation occurred after the applicant had spoken to his lawyer, advised police that he did not wish to be interviewed and was returned to the cell.  However, this is not sufficient, in my view, to conclude that the watchhouse admissions were improperly obtained.
94. [94]
    In summary, the circumstances in which the admissions were obtained were not oppressive, coercive or exploitative.  For the reasons that follow, the conduct of the police was not unacceptable according to community standards and was not otherwise improper.  

Should the unfairness discretion be exercised?

95. [95]
    Because the accused’s freedom to choose to speak to the police was impugned, a discretion to exclude evidence of the recorded conversation is engaged.
96. [96]
    An important issue in the exercise of the discretion is the extent to which that freedom was impugned, and, in particular the extent to which it was impugned by eliciting behaviour and questioning that was the functional equivalent of a police interview or interrogation.  The LEP did not interrogate the accused.  The applicant and the LEP engaged in a conversation in the course of which they asked questions of each other.
97. [97]
    The applicant chose to speak to someone whom he believed to be a fellow prisoner.  In doing so, he took the risk that his fellow prisoner may inform the police about their conversation or be an undercover police officer. 
98. [98]
    I am not persuaded that it is unfair in all the circumstances to use the applicant’s statements against him at trial.  The admission of his statements will not render his trial unfair.

Should the public policy discretion or the broad discretion recognised in Swaffield be exercised?

99. [99]
    It is convenient to address the question raised in Swaffield of whether, having regard to the means by which the evidence was obtained it has been obtained “at a price which is unacceptable having regard to prevailing community standards”.  To the extent that this “invests a broad discretion in the court” it overlaps with the public policy discretion.

Was the evidence obtained at an unacceptable price having regard to prevailing community standards?

100. [100]
     This question raises the issue of the sources from which the court is to discern “prevailing community standards” that relate to the conduct of police.  One obvious source are standards of conduct enacted on behalf of the community by its Parliament.  The conduct complained about in this application did not breach any law or code governing police questioning of suspects or covert police operations.
101. [101]
     Conduct may be “unacceptable having regard to prevailing community standards” without it being illegal or unlawful.  Conduct that is allowed or even encouraged by the executive may not be conduct that courts wish to encourage or be seen to tolerate by allowing the product of that conduct to be admitted into evidence.  These considerations inform the exercise of the public policy discretion.^[70]
102. [102]
     Unacceptable conduct is not confined to conduct that is prohibited by legislation.  It extends to conduct that is unacceptable having regard to freedoms and rights recognised by the common law.
103. [103]
     This State, like many other jurisdictions, has had the bitter experience of police malpractice.  Police misconduct, including the widespread use of “verbals”, was the subject of official investigation and recommendations for reform in the late 1970s.^[71]  Despite the recommendations of an inquiry chaired by Justice Lucas there was legislative inertia. It fell to Judges of this Court and other courts to apply the Judges’ Rules so as to exclude evidence that was obtained by unacceptable conduct. ^[72]
104. [104]
     The Queensland Parliament eventually enacted laws to regulate questioning by police for indictable offences.  The laws did not abrogate in any presently relevant circumstance what may loosely be described as “the right to silence”.  The laws regulated police questioning and enhanced the ability of individuals to exercise their right to silence by providing for cautions, access to lawyers before questioning commenced and the compulsory recording of confessional and similar statements. 
105. [105]
     A legislative choice was made that these rules should apply to police exercising authority as police.  Significantly, the Parliament provided that these rules do not apply to police exercising functions in a covert way.
106. [106]
     Legislation was not required to permit police conduct of the kind disclosed in this application.^[73] 
107. [107]
     The fact that covert operations of the kind undertaken in this matter involve subterfuge and deceit does not make them unacceptable having regard to prevailing community standards.  Deceptive conduct may be lawfully and properly employed by police, acting in the public interest, in order to bring the guilty to justice.
108. [108]
     It is not apparent to me that the use of an LEP to record admissions by a suspect offends prevailing community standards.  The conduct of the LEP in this case was not improper since, for the reasons given, he did not undertake any form of interrogation, engage in oppressive conduct, or exploit any vulnerability of the applicant.
109. [109]
     Ultimately, the argument that the police conduct in obtaining the evidence was unacceptable according to prevailing community standards fastens on the fact that it impugned the applicant’s freedom to choose to speak to the police.
110. [110]
     The Canadian cases that were followed by the majority of the High Court in Swaffield did not rule that the use of subterfuge by placing an undercover police officer in a cell with a suspect is unacceptable according to prevailing community standards or according to standards that the judiciary would wish police to observe.  As discussed, the Canadian authorities establish that the use of such subterfuge is unacceptable when it is used to interrogate an accused who has advised that he does not wish to speak to police and the nature of the exchange between the accused and the undercover police officer improperly elicits information because the relevant parts of the conversation are the functional equivalent of an interrogation.  Unacceptable conduct also may occur where the police exploit some special characteristic of the relationship between the suspect and their agent to obtain a statement that would not otherwise have been made.
111. [111]
     In deciding whether the conduct of the police was unacceptable according to community standards it is relevant that the conversation was recorded.  This avoids controversy about what was said and the circumstances in which it was said.  It serves the public interest in a similar way to observance of legislative requirements to record police questioning that is subject to the PPRA. 
112. [112]
     Another factor that bears upon the acceptability or otherwise of the conduct is that the conduct in question is not said to have affected the reliability of the evidence as might have been said in respect of oppressive conduct.
113. [113]
     Another matter relevant to the acceptability or otherwise of the conduct, and one that arises in the related context of the public policy discretion, is that the conduct was in respect of serious offences.  The community is more likely to accept resort to the kind of deception that was undertaken by the covert operation in this case in respect of a serious offence than in respect of a minor offence.
114. [114]
     Judges face difficulties in many contexts in determining prevailing community standards.  They do not conduct surveys of a supposedly representative sample of the community.  They cannot seek out extraneous information about popular sentiment.  They should not assume that expressions of opinion in the media about police conduct or other aspects of the criminal justice system will reflect community standards or be well-informed.  Despite these difficulties, the broad discretion identified by Toohey, Gaudron and Gummow JJ in Swaffield requires judges to decide whether conduct is unacceptable having regard to prevailing community standards. 
115. [115]
     There may be clear cases of “appalling police behaviour” where the answer is obvious.  There may be other cases involving subterfuge and deception by police that are clearly acceptable according to community standards.  A stark example would be deception of a suspect early in the stages of a kidnap investigation in order to obtain evidence of the crime and to locate and save the victim.  Other cases may not be so clear. 
116. [116]
     In my view, the fact that the applicant declined to be interviewed by police following police cautions and also after he spoke to his lawyer did not make it unacceptable, according to community standards, for the police to seek to obtain admissions by other means.  These means would include lawful covert recordings, obtaining evidence from informants (who spoke to the accused either in the community or in custody), and obtaining evidence from undercover police (who spoke to the accused either in the community or in custody).
117. [117]
     I am not persuaded that it is unacceptable, according to community standards, for police to conduct lawful covert recordings of conversations involving a suspect who has earlier indicated a choice not to speak to the police.  I apprehend that decent members of the community, aware of the “right to silence” and its various rationales, would expect police to undertake lawful covert recordings in the interests of bringing to conviction a wrongdoer who has declined to be interviewed by police in respect of serious crimes, provided the police do not engage in oppressive or other improper conduct. 
118. [118]
     The conversation in which the undercover police officer was engaged was not in the nature of an interview, let alone an interrogation.  The covert conduct engaged in by the police in this matter did not involve the manipulation of a pre-existing relationship or the exercise of an imbalance of power between the LEP and the applicant.  It did not involve some of the hazards associated with more contentious forms of covert police operations of the kind considered in cases such as Ridgeway v The Queen^[74] and Tofilau. 
119. [119]
     The applicant was aware of his “right to silence”, being his freedom not to speak to the police or to others who may inform against him.  He chose to speak to someone whom he took to be a fellow prisoner.  He took the chance that the fellow prisoner would inform on him or turn out to be an undercover police officer.  The applicant  made a choice not to exercise his right to silence when he was in the watchhouse cell. 
120. [120]
     I am not persuaded that the conduct of the police in seeking to obtain admissions from the applicant after he declined to be interviewed by police was unacceptable according to community standards. The applicant’s statements were not obtained at a price that is unacceptable having regard to prevailing community standards.

The public policy discretion

121. [121]
     For similar reasons the facts do not warrant the exercise of the public policy discretion to exclude evidence that is unlawfully or improperly obtained.  The evidence was not unlawfully obtained.  The evidence was not improperly obtained by conduct that was oppressive or breached standards of behaviour to be expected of law enforcement officers.  It involved the use of an undercover police officer in circumstances in which the applicant had indicated that he did not wish to be questioned by police.  Therefore, it impugned his freedom to choose to speak to the police.
122. [122]
     I have found that the police conduct did not involve any form of oppression or questioning that was the functional equivalent of an interrogation.  The conduct did not involve a deliberate or reckless disregard by police of the law.  The police acted on the basis that the deployment of the LEP was lawful and proper.  That belief was reasonable.
123. [123]
     The police conduct that is complained about by the applicant did not affect the cogency of the evidence that was obtained. 
124. [124]
     The evidence was obtained in relation to serious offences. 
125. [125]
     As Brennan CJ stated in Swaffield, there is “a public interest in ensuring that the police do not adopt tactics that are designed simply to avoid the limitations on their inquisitorial functions that the courts regard as appropriate in a free society”.^[75]
126. [126]
     The fact that the conduct of police impugned the applicant’s freedom to choose to speak to the police is a factor that favours exclusion in the public interest.  As against that interest is the public interest in having the applicant’s admissions available at trial for serious offences. 
127. [127]
     In summary, the police conduct was undertaken in good faith, was lawful, and did not breach rules governing questioning enacted by the legislature or developed by the judiciary to supplement those rules.^[76]  Declining to exercise the public policy discretion in the circumstances of this case does not risk giving rise to a public perception that the court approves of or encourages police misconduct.  In addition, it is not necessary to exercise the discretion in order to discipline police or to deter police from engaging in improper conduct in the future.
128. [128]
     The public interest in ensuring that the police respect the exercise of a suspect’s “right to silence” in response to a request to be interviewed must be weighed against the public interest in having admissible evidence of the applicant’s statements available at his trial on serious offences.
129. [129]
     Having weighed the factors that favour exclusion of the evidence in the public interest against the factors that favour its admission in the public interest, I conclude that the public interest favours the admission of the evidence.
130. [130]
     I decline to exercise the public policy discretion. 

The use of deception and the absence of coercion

131. [131]
     The applicant chose not to be interviewed by police.  He chose to speak to another occupant of a watchhouse cell.  No coercion was exercised by his fellow occupant to converse.  The applicant chose to converse and to disclose matters that are relied upon as admissions against him.  The applicant chose to speak in those circumstances and must be taken to have accepted the risk that the other occupant of the cell may inform upon him to police or be an undercover police officer. 
132. [132]
     Use of deception in such a case is insufficient to require the discretion to exclude to be exercised.  Some trickery may be so appalling as to justify exercise of a discretion to exclude.  However, trickery in allowing a police officer to pose as a prisoner is not of that character.  The police conduct in obtaining such evidence by such means was not unacceptable having regard to community standards. 
133. [133]
     The concern of the majority of the High Court in Swaffield, in reliance on the Canadian authorities, was with conduct in the nature of an interrogation that improperly elicited admissions in the absence of a caution or was with exploitation of the vulnerability of the accused because of a power imbalance or an existing relationship between the accused and the questioner. 
134. [134]
     It has been said that “the notion of compulsion is not an integral part of the fairness discretion”.^[77]  That is not to say that it is irrelevant to the exercise of the discretion in the context of undercover police operations.
135. [135]
     The Supreme Court of the United States observed in that regard:^[78]

“The essential ingredients of a ‘police-dominated atmosphere’ and compulsion are not present when an incarcerated person speaks freely to someone whom he believes to be a fellow inmate ... When a suspect considers himself in the company of cellmates and not officers, the coercive atmosphere is lacking ... ‘[W]hen the agent carries neither badge nor gun and wears not “police blue,” but the same prison gray’ as the suspect, there is no ‘interplay between police interrogation and police custody.’ ”

136. [136]
     To the extent that any balancing exercise is involved, the balance favours the reception of admissible evidence relied upon to support the prosecution of serious criminal offences over any countervailing interest in police not resorting to covert strategies that deceive a person who has chosen not to be interviewed by police. 
137. [137]
     In this case, discretionary considerations favour the reception into evidence of admissions made to a person who did not purport to exercise lawful authority and who did not coerce the applicant. The applicant made a free choice to speak.

Does the quality of the recording justify exclusion of the admissions?

138. [138]
     As noted at the start of these reasons, the applicant seeks the exclusion of the audio recording pursuant to the Christie discretion principally due to what is contended to be the poor quality of the recording, with parts of it being indistinct or inaudible.  He submits that these features carry the risk of the jury speculating about the words that cannot be heard and attribute more weight to the conversation than it deserves, resulting in unfair prejudice to him.  He invites the court to conclude that it would be unfair to admit the recorded conversation as its probative value is outweighed by the potential prejudicial effect.
139. [139]
     I do not regard the quality of the recording as poor for a secret recording.  Occasional words are inaudible or indistinct.  This is not uncommon for covert recordings or audio recordings by police “in the field”.  I listened to the recording in a courtroom during the hearing and also, with the concurrence of counsel, on a laptop in my chambers, aided by the transcript that was made Exhibit 1.  The recording’s quality and audibility for jurors is able to be enhanced by wearing earphones. 
140. [140]
     This is not a case like R v Bercolli & Ioannou^[79] in which a substantial portion of the recording and transcript was inaudible or unintelligible.  In that case the Court of Criminal Appeal concluded that what was not intelligible may have included statements by one or both of the appellants demonstrating that they or either of them had not finally agreed to a plan to kill.  What remained of the recording was found by the Court to be “insufficient to justify the conclusion that the unintelligible portions might safely be ignored as containing nothing to exculpate the appellants or either of them”.^[80]
141. [141]
     As explained by Dowsett J in R v O'Neill,^[81] the peculiar relevance of the defective quality of the recording in R v Bercolli & Ioannou was that the conversation was itself an element of the offence.  That said, the significance of an admission made in a conversation may be affected by other parts of the conversation.  An example was given in O'Neill that a statement by an accused that she had tried to murder her husband would lose its inculpatory effect if other parts of the conversation demonstrated that she was joking or speaking in a figurative sense.  The quality of the recordings in O'Neill did not require their rejection on such a basis.  Nor does the quality of the recording in this case justify its exclusion in the exercise of the Christie discretion or on the ground that the use of the recording in evidence would be unfair to the applicant. 
142. [142]
     There is no suggestion that the occasional indistinct or inaudible word or words might cause other audible parts of the conversation to lose their inculpatory effect.
143. [143]
     This is not a case in which there are substantial passages that are indistinct or inaudible so as to encourage the jury to speculate about what was said in those passages to the unfair prejudice of the applicant.  If requested, the jury may be told not to speculate about what was said in those occasional parts of the recording that are inaudible or indistinct.
144. [144]
     The relevant statements in the recording are not of slight probative value.  The risk that the jury might attach more weight to the recorded conversation than it deserves is not high.  The risk that the jury will make inappropriate use of the conversation because some parts of it are indistinct or inaudible is not high and may be addressed by appropriate directions to the jury.
145. [145]
     I do not accept that the probative value of the evidence is outweighed by the potential for unfair prejudice.  I decline to exercise the discretion to exclude evidence of the conversation based on the applicant’s arguments as to its quality.
146. [146]
     Finally, the applicant submits that some of the words used by the applicant in the conversation are vague and loose in their context to the point where many statements are not reasonably capable of being construed as an admission by the accused.^[82]  I disagree.  The statements relied upon by the respondent as inculpatory are capable of being construed by the jury as admissions.  It will be a matter for the jury what they make of the relevant statements and the weight that they give to them. 

Disposition

147. [147]
     I decline to exercise the discretion to exclude evidence of the recorded conversation on 3 April 2020 between the applicant and Law Enforcement Participant 76 from the applicant’s trial on Indictment No. 1223 of 2021 and Indictment No. 1282 of 2020. 
148. [148]
     The amended application filed 26 November 2021 is dismissed.