R v BJM

The applicant sought the exclusion of an audio recording of admissions made by him to an undercover police officer in a watchhouse cell. The applicant had, at the time of making admissions to the undercover officer, refused to participate in a formal record of interview. The applicant claimed the recording of the admissions should be excluded on three bases: (1) unfairness arising from an impermissible curtailment of his freedom to choose to speak to police, as recognised by the High Court in Swaffield; (2) public policy; and (3) Christie discretion – prejudice outweighing probative value due to quality of the audio. Applegarth J dismissed the application, refusing to exercise his Honour’s discretion under any of the three bases to exclude the evidence. His Honour found the admissions were lawfully obtained by police and there was no unfairness or public policy reason to exclude in the circumstances. His Honour also found the quality of the audio was not so poor as to cause the probative value of the admissions to be outweighed by any prejudice of occasional words being inaudible or indistinct.

Applegarth J

10 February 2024

Background

The applicant was arrested and charged with attempted murder. [1]. Prior to his arrest, and under caution, he participated in some questioning by police in which he denied his involvement in the offence. [7]–[8]. He later refused to participate in a formal record of interview. [8].

After his arrest and while in the watchhouse holding cell, the applicant made admissions to the other occupant, who was an undercover police officer (LEP). [1]–[2]. Those conversations were recorded. [3].

The applicant sought for the exclusion of the recorded conversations from his trial on three grounds:

1.It would be unfair and against the interests of justice to admit the evidence because it amounted to an “impermissible curtailment” of his freedom to choose to speak to police (R v Swaffield; Pavic v The Queen (1998) 192 CLR 159);

2.The Court’s public policy discretion should be exercised to exclude the evidence; and

3.The prejudicial effect of the evidence substantially outweighs its probative value, particularly due to poor audio quality of parts of the recordings.

The Crown submitted there was no improper or unfair conduct warranting the exclusion of the evidence. [4]. The Crown also distinguished Swaffield on the basis the rules applicable to police questioning changed under the Police Powers and Responsibilities Act 2000 (“PPRA”) and those provisions do not apply to covert questioning for indictable offences. [4]. Indeed, it was on that basis that police who placed the LEP in the cell believed the conduct was legal. [10].

Refusal to exclude evidence

Applegarth J dismissed the application, refusing to exclude the evidence of the applicant’s admissions on any discretionary basis.

Evidence lawfully obtained

Applegarth J held the admissions were not illegally obtained as the covert operative was not required to comply with the rights and cautions under s 418 of the PPRA, nor was it otherwise unlawful. [71]–[76]. The usual cautions and rights need not be given by a covert operative before asking questions. [71]. Notably, his Honour commented that “in my view … s 418 [does not] 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”. [74].

Voluntariness of admission

His Honour found the applicant spoke voluntarily to the LEP. [17]. There was nothing improper in the conduct of the LEP. [79]. The LEP did not press the applicant to answer questions or badger him, [15], nor make threats or promises. [79], [86]. Open-ended questions were used and the “discussion had a conversational tone”. [15], [88]. The LEP also did not say things which might induce the applicant to exaggerate what he had done or make false claims. [16], [89].

Unfairness: Swaffield

His Honour considered the multifaceted “right to silence” and considered that, the right as described by the majority in Swaffield, regarding an accused’s freedom to choose to speak to police, being impugned will “not necessarily lead to an exclusion of the evidence”. [30]–[31]. Swaffield and Pavic demonstrate that what is important is whether unfairness has been caused to the accused such that the court should exercise its discretion to exclude the evidence. [45]–[55]. His Honour summarised at [56] the relevant principles derived from those cases, and the authorities that have followed since:

“1.The underlying consideration is the extent to which the accused’s freedom to choose to speak to the police has been impugned.

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.

6.Relevant factors include:

a)whether the conversation was the functional equivalent of an interrogation;

b)the nature of the relationship between the State agent and the accused, and whether the State agent exploited it; and

c)the relative power of the parties to the conversation.” (citations omitted)

His Honour found the use of deception or subterfuge not to be a critical factor in making the determination as police may lawfully engage in such conduct when acting in the public interest. [59]–[60]. Use of such tactics does not automatically render the admissions made unfair. [61]–[62]. The question is whether the evidence has been obtained at a price unacceptable to prevailing community standards, such that it is unfair. [67]. Unfairness is also part of the rationale for the public policy discretion. [67].

In the circumstances of the present case, his Honour found that while the conversation with the LEP did impugn the applicant’s freedom to choose to speak to police, the admissions were not obtained in an unfair or improper manner. [93]–[94]. Thus, the impugning of that freedom was not sufficient to conclude that the admissions were improperly obtained. [93]. Applegarth J found that it was not unfair to use the applicant’s statements against him at trial. [98]. Amongst the matters already describe as to the conduct of the LEP, the applicant chose to speak to the LEP as a fellow prisoner, aware of the risk that such a person may inform police about the conversation or may be an undercover police officer. [97].

Price of obtaining the evidence and the public policy discretion

Applegarth J refused to exclude the applicant’s admissions on the basis of public policy. [120].

His Honour explained the public policy discretion to exclude improperly obtained evidence weighs the competing policies of attaining a conviction of an offender with the undesirable effect of judicial approval or encouragement of unlawful or improper conduct of law enforcement officers. [33]. Overlap exists between this public policy discretion and the question, under Swaffield, of whether the evidence was obtained at an unacceptable price having regard to community standards. [99].

In the present case, factors weighing in favour of police’s conduct not being unacceptable included that the conversation was audio recorded, [111], there was no oppressive or interrogatory conduct, [110]–[112], and the relevant offence was serious. [113].

His Honour explained:

“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.” [117].

Ultimately, his Honour was satisfied that the applicant’s statements were not obtained at a price that is unacceptable having regard to prevailing community standards. [120], [132]. The same reasons formed the basis for his Honour refusing to exercise the public policy discretion to exclude the evidence. [121]–[130].

Quality of the recording and the Christie discretion

Applegarth J also refused to exclude the evidence on the basis of the Christie discretion, that is, that the prejudice outweighed the probative value due to the quality of the recording. His Honour found the quality of the recording was not poor for a covert recording. [139]. Although occasional words were indistinct or inaudible, [139], this was not substantial passages, nor was this a case where the missing words raised issue about the inculpatory effect of audible parts of the conversation. [140]–[143], [146]. Those audible parts were significant and any inappropriate use of the conversation by the jury could be cured by appropriate directions. [144].

Finding the probative value was not outweighed by the potential for unfair prejudice, his Honour declined to exclude the evidence on this basis. [145].

H Edwards of Counsel