Tofilau v The Queen

HIGH COURT OF AUSTRALIA

GLEESON CJ
GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ

Matter No M144/2006

LEMALUOFUIFATU ALIPAPA TOFILAU   APPELLANT

AND

THE QUEEN   RESPONDENT

Matter No M145/2006

MATTHEW JOSEPH MARKS   APPELLANT

AND

THE QUEEN   RESPONDENT

Matter No M146/2006

SHANE JOHN HILL       APPELLANT

AND

THE QUEEN    RESPONDENT

Matter No M147/2006

MALCOLM JOSEPH THOMAS CLARKE   APPELLANT

AND

THE QUEEN    RESPONDENT

Tofilau v The Queen
Marks v The Queen
Hill v The Queen
Clarke v the Queen
[2007] HCA 39
30 August 2007
M144/2006, M145/2006, M146/2006 & M147/2006

ORDER

Each appeal is dismissed.

On appeal from the Supreme Court of Victoria

Representation

O P Holdenson QC with L C Carter for the appellants in M144/2006 & M146/2006 (instructed by Victoria Legal Aid)

P F Tehan QC with C B Boyce for the appellant in S147/2006 (instructed by Ronald V Tait)

G J Lyon SC with M J Croucher for the appellant in S145/2006 (instructed by Victoria Legal Aid)

P A Coghlan QC with J D McArdle QC and S B McNicol for the respondents (instructed by Solicitor for Public Prosecutions (Vic))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Tofilau v The Queen; Marks v The Queen; Hill v The Queen; Clarke v The Queen

Criminal law – Evidence – Confessions and admissions – Scenario evidence – Undercover police officers posing as a criminal gang used scenarios involving staged criminal conduct to gain the trust of persons suspected of committing a serious crime – On condition that the person tell the gang boss the truth about his prior criminal activity, the gang boss offered that person membership of the gang with concomitant material benefits and the prospect of illegally avoiding prosecution for prior crimes – Whether the resulting confessions were admissible.

Criminal law – Evidence – Confessions and admissions – "Inducement rule" – History of the "inducement" requirement – Whether the promises made to the confessionalists were "inducements" – History of the "person in authority" requirement – Whether undercover police officers posing as gang members were "persons in authority" – Whether a person who represented himself as having the capacity to influence illegally a criminal prosecution was a "person in authority" – Whether a person must be known by the suspect to have actual lawful authority to influence the course of the prosecution to be a "person in authority".

Criminal law – Evidence – Confessions and admissions – "Basal voluntariness" – History of the "basal voluntariness" rule – Meaning of "voluntariness" – Whether the use of deception by the police obviated "voluntariness" – Whether inducements obviated "voluntariness" – Whether in the circumstances the confessionalists' wills were overborne – Relevance of analogy to "duress".

Criminal law – Evidence – Confessions and admissions – Discretionary grounds for exclusion – "Public policy" discretion – Whether the use of deception by the police was improper.

Criminal law – Evidence – Confessions and admissions – Discretionary grounds for exclusion – Unfairness discretion – Whether in all the circumstances it was unfair to the confessionalist to use against him a confession obtained by police deception.

Criminal law – Evidence – Confessions and admissions – Discretionary grounds for exclusion – Prejudice discretion – Whether the prejudicial impact of the circumstances in which the confession was obtained was greater than the probative value of the confession.

Criminal law – Evidence – Confessions and admissions – Discretionary grounds for exclusion – Reliability discretion – Whether the circumstances in which the confession was made rendered the confession inherently unreliable.

Words and phrases – "basal voluntariness", "duress", "free choice", "inducement", "oppression", "overborne", "person in authority", "right to silence", "scenario evidence", "scenario techniques", "unfairness", "voluntary".

Evidence Act 1958 (Vic), s 149.

1. GLEESON CJ.   The appellants were suspected of having committed serious and violent crimes (murder).  They were tricked by undercover police officers, posing as criminals, into confessing.  They were tried and convicted.  Their confessions were received in evidence.  The technique of deception used by the police, and the details of the confessions, appear from the reasons of other members of the Court.  The confessions, which were made in circumstances that supported rather than cast doubt upon their reliability, were obviously found by the trial juries to have been true.  The issue in these appeals is whether the evidence of the confessions should have been excluded.

2. All four appellants rely upon the rule of the common law that evidence of a confession (the rule covers all admissions, but we are concerned here with admissions that amounted, or for practical purposes amounted, to confessions) may not be received against an accused person unless it is shown to be voluntary.  In this context, as in other legal contexts, the word "voluntary" may create uncertainty.  There is, however, an aspect of the rule with a more specific focus. A confessional statement will be excluded from evidence as involuntary if it has been obtained from an accused either by fear of prejudice or hope of advantage, exercised or held out by a person in authority[1].  That particular and well-established form of involuntariness was described by Dixon J as "the classical ground for the rejection of confessions and [that which] looms largest in a consideration of the subject."[2]  Even so, it does not cover the field.

   [1]Ibrahim v The King [1914] AC 599 at 609.

   [2]McDermott v The King (1948) 76 CLR 501 at 511-512.

3. In addition to the rule that requires a trial judge to exclude evidence of a confession that is not voluntary, there are discretionary principles according to which a trial judge may exclude evidence of a voluntary confession.  Those principles have been stated in a number of decisions of this Court, and were summarised in R v Swaffield[3], by Toohey, Gaudron and Gummow JJ, as covering three classes of case.  The first is a case where it would be unfair to the accused to admit the statement.  The relevant form of unfairness is related to the law's protection of the rights and privileges of the accused person.  The second is a case where considerations of public policy, such as considerations that might be enlivened by improper police conduct, make it unacceptable to admit the statement.  The third concerns the general power of a trial court to reject evidence on the ground that its prejudicial effect (that is to say, the danger of its misuse, not its inculpatory force) outweighs its probative value.

   [3](1998) 192 CLR 159 at 189 [51]-[52].

4. The first two of those discretions were of potential relevance to these cases.  They were invoked by the appellants at trial in the Supreme Court of Victoria, and in the Victorian Court of Appeal.  The ability to invoke considerations of unfairness, and public policy, in support of an argument for exclusion of confessional evidence in the exercise of a judicial discretion limits the need to go beyond established principle in seeking to characterise the conduct of a confessionalist as involuntary.  If what is really meant is that, the confession having been induced by some form of deception, it would be unfair to the accused (in the sense stated above) to receive it in evidence, or contrary to public policy to allow the deception to bear fruit, then existing principle brings discretion into play.  There is no occasion to seek to extend the concept of voluntariness beyond its accepted limits in order to accommodate considerations of fairness and public policy.  On the other hand, it is understandable that an accused would seek to invoke a rule of mandatory exclusion rather than to rely only upon discretionary judgment.  Furthermore, the approach taken by appellate courts to the review of discretionary decisions may make it more difficult for a convicted person to challenge an unfavourable ruling[4].  This consideration will be even more compelling in a second appellate court, where an intermediate appellate court has reviewed, and affirmed, a trial judge's exercise of discretion.  These forensic considerations were reflected in the course taken in argument in these appeals.  Initially, all four appellants confined their arguments in this Court to the issue of voluntariness:  both the narrower, more specific, aspect earlier identified, and the wider, less clearly defined aspect (referred to in argument, adapting an expression used by Dixon J in McDermott v The King[5], as "basal voluntariness").  Under pressure of argument, one appellant relied as well on the discretionary principles.  Concentrating on the mandatory rule of exclusion avoided the difficulty of overcoming discretionary judgments which had already been affirmed after appellate review.  Tactically, it may have suited the appellants not to become too closely involved in the extent to which their complaints could be dealt with on discretionary grounds.  In this connection, it is interesting to note the course of argument and decision in the two matters decided in Swaffield.  Those cases involved confessions obtained by subterfuge and deception.  They were dealt with according to principles of discretionary exclusion.  If some of the arguments advanced in the present appeals were correct, then Swaffield and its related appeal would seem to have been dealt with according to the wrong principle.  On the approach of at least three of the present appellants, they should have been dealt with under the rubric of mandatory exclusion of involuntary confessions.

   [4]House v The King (1936) 55 CLR 499 at 505.

   [5](1948) 76 CLR 501 at 512.

5. Two further preliminary matters should be mentioned.  First, the common law rules with which we are presently concerned apply, not only to confessions of guilt, but to all admissions sought to be used in evidence against an accused person at trial.  Sometimes, an admission may be made in the course of an assertion of innocence.  It may be an admission of a fact which is not seriously in dispute, which of itself is not inconsistent with innocence, but which the prosecution could not otherwise prove.  The admission may have been made to any manner of person, and in any kind of circumstance.  It may have been made in response to a mistake, a misrepresentation (either deliberate or innocent), to the pressure of events or circumstances, or to mere inadvertence.   It may have been made in circumstances where issues of legal rights or consequences, or considerations of choice either to speak or remain silent, never entered the mind of the maker.  It would be clearly wrong to suggest that the only kinds of admission used in evidence at criminal trials are those made to police officers in a context of a conscious decision not to exercise a "right to silence".  Admissions, which may turn out to be very damaging, are often made in circumstances where the maker of the admission is unconcerned with legalities, and may not even realise the significance that later will be attached to what is said.  Secondly, the use by the police of deception in the hope of eliciting admissions is not new.  The particular technique of deception adopted in the present cases seems to have been imported into Australia from Canada.  Since these trials, it has been reported in the media.  Presumably, unless Australians suspected of serious crime are unaware of what is contained in the newspapers, it has a limited life expectancy.  It would, however, be erroneous to characterise these appeals as raising a completely novel problem demanding reconsideration of established legal principle.  The use of undercover police operatives always involves deception.  Such operatives are undercover precisely because they are trying to deceive somebody about something.  The technique of deception used in Deokinanan v The Queen[6], where the police put an accused person's friend in a prison cell with the accused in the hope of obtaining a confession, is common.  These days, the friend would probably be equipped with a secret recording device.  The Privy Council held that the confession was voluntary and admissible.  All forms of covert surveillance, many of them authorised (subject to safeguards, such as a requirement for judicial approval) by statute, involve a kind of deception.  Interception and recording of telephone conversations often produces evidence of admissions tendered at a criminal trial, as well as circumstantial or direct evidence of criminal activity.  The parties to those conversations speak in the erroneous belief that they are not being overheard.  They have no opportunity to consult a lawyer, or to take advice on what they should or should not say.  They are not given any warning that what they say may be used against them.  They do not waive any right to silence.  Yet, if a suspect, in an intercepted and secretly recorded conversation, makes an admission, that admission is ordinarily and rightly regarded as voluntary.  At least, it is not regarded as involuntary simply because the person making the admission is the victim of a form of deception.

   [6][1969] 1 AC 20.

6. The concept of voluntariness, which is significant in many legal contexts, is protean.  This was explained by Windeyer J in Ryan v The Queen[7] to be "partly because of ambiguities in the word 'voluntary' and its supposed synonyms, partly because of imprecise, but inveterate, distinctions which have long dominated men's ideas concerning the working of the human mind".  Even the use of terms such as "mind" and "will", or "freedom of choice", may provoke scientific or philosophical protest.  Generally speaking, however, the law, as a normative science which must evaluate human conduct for practical purposes, accepts certain working hypotheses, one of which is the existence of free will.  It judges the conduct of people upon assumptions of personal autonomy that may be rejected by a psychiatrist or a philosopher[8].  Conscious of this problem, judges, when they speak of confessions as voluntary, or involuntary, often seek to explain what they mean.  In Cornelius v The King[9], Dixon, Evatt and McTiernan JJ gave as an example of an involuntary statement one that is given in consequence of a threat made, or a promise of advantage given, by a person in authority.  In the preceding sentence, however, they stated a wider proposition:  "If [a statement] is made as a result of violence, intimidation, or of fear, it is not voluntary."  Similarly, some years later, in his judgment in McDermott, Dixon J referred both to the "definite rule" excluding statements resulting from threats or inducements by persons in authority, and also to a wider concept.  He said that to say that a statement has been voluntarily made means "that it has been made in the exercise of [a person's] free choice".  He amplified this:  "If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne.  If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary."[10]

   [7](1967) 121 CLR 205 at 244.

   [8]cf Azar (1991) 56 A Crim R 414 at 418-419.

   [9](1936) 55 CLR 235 at 245.

   [10](1948) 76 CLR 501 at 511.

7. An example of the dangers involved in giving a broad and colloquial meaning to the concept of voluntariness is provided by cases dealing with the admissibility of statements made by people under a legal obligation to answer questions.  The courts have rejected arguments that such statements, not being made in the exercise of a free choice to speak or remain silent, were involuntary.  One such case was R v Kempley[11], where the Court of Criminal Appeal of New South Wales held that admissions made under compulsory interrogation pursuant to certain regulations could be received in evidence in a later prosecution, and were not involuntary.  The case went to this Court, where special leave to appeal was refused.  Latham CJ said[12]:

   "The reasons for excluding statements obtained from accused persons by inducements consisting in a threat or promise by a person in authority were that it was probable that statements so induced might be false, and further that it was improper for such persons to use their authority to bring about confessions by accused persons.  But it could not be held by a court of law that compliance with a law requiring true answers and designed to elicit true answers should be assumed to be likely to produce false answers ...  Thus it could not be said that the calling of the attention of a person to a duty imposed upon him by law to answer truly was a threat or was improper in any sense."[13]

   [11](1944) 44 SR (NSW) 416.

   [12]Kempley v The King (1944) 18 ALJ 118 at 122.

   [13]See also R v Travers (1957) 58 SR (NSW) 85; R v Zion [1986] VR 609.

8. That reasoning is directed to the narrower, "definite" rule, rather than the wider concept of voluntariness, but the outcome of the case is instructive.  Latham CJ's identification of considerations of reliability as the primary, but not the sole, rationale for the exclusion of involuntary statements is consistent with history and authority.  The addition of the reference to impropriety in the form of abuse of authority to extract confessions is interesting in the light of later High Court authority, such as Bunning v Cross[14] and Swaffield, concerning discretionary exclusion.

   [14](1978) 141 CLR 54.

9. Statements often are made under weaker, but nevertheless real, forms of legal compulsion.  Membership of a professional association, for example, might oblige a person to answer questions posed by a governing professional body.  Again, a person may be under a contractual obligation to furnish information to another.  A recent example in the New South Wales Court of Criminal Appeal is R v Frangulis[15], where the owner of a building destroyed by fire was advised by his solicitor that he was required by an insurance policy to provide information to the insurance company about the circumstances of the fire.  The information provided did not involve a confession of guilt, but it contained admissions which were later used in evidence against the insured, who was convicted of arson.  It could hardly be denied that such admissions were voluntary, but there was, no doubt, a sense in which the insured's freedom to speak or to remain silent was, or was at least perceived by the insured to be, impaired.

   [15][2006] NSWCCA 363.

   The "definite" rule

10. Reference has been made above to the passage in his judgment in McDermott in which Dixon J referred to the general requirement of voluntariness for the admissibility of confessional statements and then added that it was "also a definite rule" that a statement cannot be voluntary if it is preceded by an inducement held out by a person in authority.  The context reveals that Dixon J used the word "definite", not for emphasis, but as meaning precise or specific, in contrast to the general and less specific principle to which he had earlier referred.

11. The first argument of each of the appellants in the present case was based upon this definite rule.  The confessions made by the appellants were procured by inducements held out to them.  The question is whether the people who held out the inducements, police officers posing as criminals, were persons in authority.  This question was considered recently by the Supreme Court of Canada, in a case indistinguishable from the present, R v Grandinetti[16], and answered in the negative.  The decision was unanimous.  The reasons of the Court were delivered by Abella J.  This Court, of course, is bound to form its own opinion on the matter, but the reasons of Abella J are persuasive.

    [16][2005] 1 SCR 27.

12. A similar question had been considered previously by the Supreme Court of Canada.  In R v Hodgson[17], seven members of that Court gave the same rationale for the rule of exclusion as had been given in this Court by Latham CJ in Kempley; concerns about unreliability (false confessions) and the need to guard against improper state coercion.  Citing Hodgson, Abella J said in Grandinetti[18]:

    "The underlying rationale of the 'person in authority' analysis is to avoid the unfairness and unreliability of admitting statements made when the accused believes himself or herself to be under pressure from the uniquely coercive power of the state."

    [17][1998] 2 SCR 449.

    [18][2005] 1 SCR 27 at 38 [35].

13. It was conceded in Grandinetti that undercover police officers are usually not persons in authority within the rule, because the critical element is the perception of the person making the statement.  That concession also represents the law in Australia.  The unusual feature of Grandinetti, and of the present cases, is that the undercover police officers, although posing as persons who were not persons in authority, represented that they had influence with other persons who could influence the investigation and prosecution of the relevant offence.  The representations expressly or by implication indicated that those whom the undercover officers could influence were themselves corrupt.  The belief of the maker of the confessional statement was that he was being offered inducements, not by police officers, but by criminals who were in a position to influence certain corrupt police officers.  The Supreme Court of Canada held, and I respectfully agree, that in such circumstances "the state's coercive power is not engaged."[19]  The appellants did not believe the makers of the inducements to be persons in authority, or to be acting as agents of persons in authority.  Their supposed capacity to exercise corrupt influence over others who were persons in authority does not alter their character as understood by the appellants.  A representation (true or false) as to a capacity to influence corrupt officials could be made by anybody, but it would not constitute the maker of the representation a person in authority.  The definite rule does not avail the appellants.

    [19][2005] 1 SCR 27 at 42 [44].

    The wider principle

14. In view of the obvious possibility that this Court would reach the same conclusion as the Supreme Court of Canada in Grandinetti, the appellants next supported mandatory exclusion of their confessional statements by reference to the wider principle, which they called "basal voluntariness".  This was a reference to a fundamental principle concerning voluntariness, of which the "definite rule" considered above is a particular, although the most common, application.

15. It may be that the definite rule ought to be regarded as a response of the law of evidence to some extent analogous to the response of the law of contract to problems of defining voluntariness when dealing with questions of duress.  In Barton v Armstrong[20], Lord Wilberforce and Lord Simon of Glaisdale said:

    "The action is one to set aside an apparently complete and valid agreement on the ground of duress.  The basis of the plaintiff's claim is, thus, that though there was apparent consent there was no true consent to the agreement:  that the agreement was not voluntary.

    This involves consideration of what the law regards as voluntary, or its opposite; for in life, including the life of commerce and finance, many acts are done under pressure, sometimes overwhelming pressure, so that one can say that the actor had no choice but to act.  Absence of choice in this sense does not negate consent in law:  for this the pressure must be one of a kind which the law does not regard as legitimate.  Thus, out of the various means by which consent may be obtained – advice, persuasion, influence, inducement, representation, commercial pressure – the law has come to select some which it will not accept as a reason for voluntary action:  fraud, abuse of relation of confidence, undue influence, duress or coercion.  In this the law, under the influence of equity, has developed from the old common law conception of duress – threat to life and limb – and it has arrived at the modern generalisation expressed by Holmes J – 'subjected to an improper motive for action'".

    [20][1976] AC 104 at 121 (references omitted).

16. The common law of evidence in Australia has treated the definite rule as a specification of a particular form of conduct, involving the application of a certain kind of coercive force external to a confessionalist, which it will not accept as a reason for voluntary action.  At the same time, it has declined to limit itself by treating that as the only form of conduct that will destroy or overwhelm the freedom of choice which it considers necessary to make conduct voluntary.  (Some Australian jurisdictions have enacted legislation which deals somewhat differently with the matter of admissions, but such legislation is not of present concern.)

17. The law treats as voluntary a great deal of conduct about which a person, speaking colloquially, may say that he or she had no choice.  Since the original rationale for the principle of exclusion of involuntary statements was concern about the unreliability of statements made under coercion, that will sometimes be a useful guide in making a judgment about what kind of conduct will be taken to render a statement involuntary.  It is, however, of no assistance to the appellants in this case, because the deception practised upon them was not such as was likely to elicit a false confession.

18. To the extent that abuse of the state's coercive authority is another part of the rationale for the exclusionary rule, there are two difficulties for the appellants.  The first has already been mentioned in dealing with the definite rule:  the appellants thought they were talking to criminals, not police officers.   The second is that deception is a very common method of seeking to obtain confessions from people suspected of crime.  For most of the twentieth century, the Crimes Act 1900 (NSW), in s 410, excluded evidence of confessions induced by untrue (meaning deliberately false[21]) representations made by persons in authority.  That legislation was unusual, and went beyond the common law.  Thus, in Adams, Criminal Law and Practice in New Zealand[22], the following appeared:

    "The mere fact that a confession, otherwise voluntary, has been obtained by artifice, misrepresentation, breach of faith, or other underhand means, will not render it inadmissible. In New South Wales, under s 410 of the Crimes Act 1900, a confession is inadmissible if induced by any untrue representation made by the prosecutor or a person in authority. But no trace of any such rule is to be found in England or New Zealand."

    [21]R v Connors (1990) 20 NSWLR 438.

    [22]2nd ed (1971) at 988.

19. Since possible forms of deception are bounded only by human imagination, and human gullibility, it would be dangerous to assert that no form of deception could deprive conduct of its voluntary character.  Most deception used in the hope of eliciting admissions, however, including the form used in the present case, is calculated to induce a person to choose to reveal information that otherwise would be concealed.  The appellants were subjected to powerful psychological pressure, but it is not unusual for people to reveal old secrets under pressures that are no less compelling.  The law attempts to distinguish between external pressures and pressures personal to the confessionalist[23].  That itself may be a distinction based on pragmatic rather than scientific considerations.  The effect of external forces and circumstances on an individual is likely to depend on characteristics personal to the individual.  That which a person of one disposition may regard as unbearable pressure may be a matter of indifference to another.  The physical or emotional characteristics of a person, or that person's background or circumstances, will always be material to the effect of externally imposed pressure.  The burden of guilt may weigh heavily on one person but may be borne lightly by another.

    [23]Collins v The Queen (1980) 31 ALR 257 at 307 per Brennan J.

20. References were made in argument to the appellants' "right to silence", and to the effect on that right of the techniques adopted by the undercover police. As Lord Mustill pointed out in R v Director of Serious Fraud Office, Ex parte Smith[24], that expression "refers to a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute."  It is not a single principle.  It is a convenient shorthand reference to a collection of principles and rules, some substantive and some procedural.  If it is said that there has been an infringement of a person's right to silence, then it is usually necessary to identify the particular legal rule involved and to explain the nature of the infringement by reference to that rule.  The tendency in argument in the present case was to use the shorthand description to create an aura of inviolability around the appellants' guilty secrets, and then to take the further step of characterising the tricking of the appellants into deciding to reveal those secrets as an overbearing of the will.

    [24][1993] AC 1 at 30.

21. In answer to this line of reasoning it must again be observed that 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.

22. In Basto v The Queen[25], Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ described s 410 of the Crimes Act 1900 (NSW) as a "statutory extension of ... common law doctrine". Yet if the argument for the appellants in the present case were correct it was not an extension at all; fraudulent misrepresentations would vitiate consent and result in involuntariness. The argument for the appellants proves too much. If the deception practised upon the appellants rendered their statements involuntary, then many other forms of deception to which people suspected of crime are subjected will have the same consequence. The wills of the appellants were not overborne. Their statements were, in a legal sense, voluntary.

    [25](1954) 91 CLR 628 at 640.

23. There remain, however, the discretionary grounds relied upon by one appellant.  There, questions of unfairness, including unfair derogation from legal rights, and matters of public policy, including an evaluation of police conduct, are important.

    Discretion

24. The discretionary arguments were strongly relied on by all appellants at trial and in the Court of Appeal.  However, appellate review of judicial discretion, in accordance with the principles stated in Housev The King[26], is not at large.  I agree with what is said on the subject in the reasons of Callinan, Heydon and Crennan JJ and have nothing to add.

    [26](1936) 55 CLR 499.

    Conclusion

25. The appeals should be dismissed.

26. GUMMOW AND HAYNE JJ.   Undercover police, posing as criminals, tell a murder suspect that, to join their gang and profit from their activities, he must tell their boss the truth about his involvement in the murder.  They tell him that, if he does that, the boss can and will make any problems "go away".  The undercover police play out various scenarios designed to show the suspect how successful and powerful they are as criminals.  Any initial protestations of innocence by the suspect are met with insistence upon the need to tell the truth because charging and conviction are inevitable if the gang's help is rejected.  Is the suspect's subsequent confession to those who play the roles of boss and gang members a voluntary confession?

27. This is the central issue that arises in each of these appeals.  Although the facts of each case differ in their detail, they raise the same legal issue, and it is to be resolved in the same way.  In each case the appellant's confession was rightly held in the courts below[27] to have been made voluntarily.

    [27]R v Tofilau (2003) 13 VR 1; R v Tofilau (No 2) (2006) 13 VR 28; R v Hill [2004] VSC 293; R v Hill [2006] VSCA 41; R v Clarke [2004] VSC 541; R v Clarke [2006] VSCA 43; R v Marks (2004) 150 A Crim R 212; R v Marks [2006] VSCA 42.

28. There are three separate, but overlapping, inquiries that may have to be made in deciding whether evidence of an out‑of‑court confessional statement is admissible[28].  First, there is the question, commonly described as a question of "voluntariness", presented when the confession in issue was made to someone identified as a "person in authority".  Second, there may be the consideration of exclusion of evidence of the confession based upon notions of "basal voluntariness"[29].  Finally, there is the discretion to exclude evidence of the confession for reasons of fairness, reliability, probative value or public policy[30].

    [28]R v Swaffield (1998) 192 CLR 159 at 188‑189 [50]‑[52] per Toohey, Gaudron and Gummow JJ.

    [29]McDermott v The King (1948) 76 CLR 501 at 511‑512 per Dixon J.

    [30]Swaffield (1998) 192 CLR 159 at 188‑189 [50]‑[52], 197 [78] per Toohey, Gaudron and Gummow JJ.

29. The first question, the question of "voluntariness", requires examination of whether the statement in issue was made to a person known or believed by the speaker to be a person in authority.  In the present cases, because each appellant neither knew nor believed that those to whom he was speaking were police (or other persons having lawful authority to affect the course of the investigation of or prosecution for the offence to which the confession related) the particular rules about confessional statements to persons in authority were not engaged.

30. The central inquiry in each of the present cases concerns the second question – the question described as "basal voluntariness".  In none of the present cases was there compulsion of the kind that would deny "basal voluntariness".  In each case, the appellant could and did choose not only whether to say anything about the murder, but also what he said about that subject.  That he spoke at all because he thought that he would profit from doing so does not mean that he was not free to choose whether he spoke or remained silent about the murder.  His statements were made voluntarily.

31. In only one of the present cases (the matter of Clarke) was it submitted that it was necessary to consider the third issue which may arise in connection with confessions – the discretion to exclude evidence of the out‑of‑court statement alleged to constitute or contain a confession.  It was said, in Clarke, that the confession to undercover police should have been excluded because it was unfairly or inappropriately obtained by or on behalf of investigating authorities.  This contention should be rejected.

32. It is convenient to turn at once to a consideration of the origin and content of the applicable principles.  Once that is done, so much of the facts of the individual cases can be set out as is necessary to permit consideration of the application of those principles.

    Some important matters of history

33. Proper understanding of the principles governing "voluntariness" and "basal voluntariness" requires some understanding of the history of the development of the common law rules about the admissibility of evidence of out‑of‑court confessional statements.

34. The common law rule excluding evidence of certain out‑of‑court confessional statements was originally founded only in considerations of the reliability of the evidence.  The rule was predicated upon the presumption that only a voluntary confession is reliable.  The essential premise was that a person does not act against self‑interest.  In the 18th century, reliability was understood to be the only rationale for the rule.  So much was made clear in R v Warickshall[31] where it was said that:

    "It is a mistaken notion, that the evidence of confessions and facts which have been obtained from prisoners by promises or threats, is to be rejected from a regard to public faith:  no such rule ever prevailed.  The idea is novel in theory, and would be as dangerous in practice as it is repugnant to the general principles of criminal law.  Confessions are received in evidence, or rejected as inadmissible, under a consideration whether they are or are not intitled to credit.  A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and therefore it is admitted as proof of the crime to which it refers; but a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape when it is to be considered as the evidence of guilt, that no credit ought to be given to it; and therefore it is rejected."  (emphasis added)

    The 18th century focus upon reliability is confirmed when it is noticed that, in Warickshall, the principle that was stated was expressly confined to the exclusion of evidence of what had been said by the accused.  The Court in Warickshall went on to say[32] that:

    "This principle respecting confessions has no application whatever as to the admission or rejection of facts, whether the knowledge of them be obtained in consequence of an extorted confession, or whether it arises from any other source; for a fact, if it exist at all, must exist invariably in the same manner, whether the confession from which it is derived be in other respects true or false."  (emphasis added)

    [31](1783) 1 Leach 263 at 263‑264 [168 ER 234 at 234‑235].

    [32](1783) 1 Leach 263 at 264 [168 ER 234 at 235].

35. Subsequent development of the common law regulating the exclusion of evidence of out‑of‑court confessions was, at least for a time, informed wholly by considerations of reliability.  Much of that development of the common law was directed to articulating the circumstances in which evidence of statements made to persons in authority were to be excluded.  But it is important to recognise that "voluntariness" was used at this time as the means of determining whether the evidence was not so unreliable that it should be excluded from consideration by the jury.  That is, a class of cases was identified in which evidence of what had been said out of court was to be rejected because, as a class, those cases were thought likely to have produced an unreliable confession.  Voluntariness, for its own sake, had no significance.

36. These early developments of the law relating to confessions had little if anything to do with the privilege against self‑incrimination.  The development of the law relating to that privilege had separate roots and developed independently[33].

    [33]Morgan, "The Privilege Against Self‑Incrimination", (1949) 34 Minnesota Law Review 1.

37. The law, as understood in the middle of the 19th century, was stated in the first edition of Best on Evidence, published in 1849, as being[34] that:

    "Self‑disserving evidence is not always receivable in criminal cases, as it is in civil.  There is this condition precedent to its admissibility, that the party against whom it is adduced must be shown to have supplied it voluntarily, or at least freely. ... [T]he law on the subject as it stands at present is merely that every confession or criminative statement of any kind, which either has been extracted by any species of physical torture, coercion, or duress of imprisonment; or been made in consequence of  inducements held out to the accused, by any person in whose custody he is, or who has any lawful authority, judicial or otherwise, over his person or the charge against him, ought to be rejected."

    [34]Best, A Treatise on the Principles of Evidence and Practice as to Proofs in Courts of Common Law, (1849) at 418‑419.

38. This statement of the law was not inconsistent with what Parke B was to say, a few years later, in R v Baldry[35]:

    "By the law of England, in order to render a confession admissible in evidence it must be perfectly voluntary; and there is no doubt that any inducement in the nature of a promise or of a threat held out by a person in authority, vitiates a confession."

    [35](1852) 2 Den 430 at 444‑445 [169 ER 568 at 574].

39. The way in which the requirement of an inducement by a person in authority had been understood before the decision in Baldry was not then without controversy.  Not least was that so because cautions against saying anything in response to official questioning had been held[36] to be a form of inducement.  In Baldry, Parke B said[37] that the rule about inducements had "been extended quite too far, and that justice and common sense have, too frequently, been sacrificed at the shrine of mercy".  But leaving aside these controversies about the particular content that was then given to the rules governing the admissibility of evidence of out‑of‑court confessional statements made to persons in authority, the rules remained rooted in considerations of reliability.  Indeed the burden of the criticism made by Parke B in Baldry of earlier decisions about what was an inducement by a person in authority was that the consequence of the earlier decisions was to exclude evidence that was not likely to be unreliable.

    [36]R v Drew (1837) 8 Car & P 140 [173 ER 433]; R v Morton (1843) 2 M & Rob 514 [174 ER 367].

    [37](1852) 2 Den 430 at 445 [169 ER 568 at 574].

40. The way in which Parke B stated the rule in Baldry was consistent with the need to make a distinct inquiry about "basal voluntariness".  And that understanding of the rule stated by Parke B would have been consistent with what had earlier been written on the subject in the first edition of Best on Evidence.  But subsequent developments in the law relating to confessions suggest strongly that the rules stated by Parke B were later understood as a single rule concerned only with statements to persons in authority.  Indeed it is the statement of Parke B in Baldry that has subsequently been identified[38] as the point at which the requirement of an inducement by a person in authority became an essential part of the test.  And, as will later appear, it was not until this Court's decision in McDermott v The King[39] that the overarching principle of voluntariness was again identified as encompassing the consideration of not only inducements offered by persons in authority but also "basal voluntariness".  Yet it is to be observed that the formulation in successive editions of Best on Evidence of the relevant principles remained substantially unchanged through the latter half of the 19th century and into editions published as late as 1922[40].

    [38]See, for example, Cross and Tapper on Evidence, 8th ed (1995) at 665.

    [39](1948) 76 CLR 501.

    [40]Phipson (ed), The Principles of the Law of Evidence, 12th ed (1922) at 472.

41. The rule about confessional statements to persons in authority remains.  A confession made following a promise or threat by a person in authority is inadmissible.  As was said in the advice of the Privy Council in Ibrahim v The King[41], a case sometimes treated[42] as the origin of much of the modern Australian law relating to the admissibility of confessions[43]:

    "It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority."

    Whether, as that opinion suggests[44], the principle "is as old as Lord Hale" need not be considered.

    [41][1914] AC 599.

    [42]See, for example, McDermott (1948) 76 CLR 501 at 503‑504.

    [43][1914] AC 599 at 609.

    [44][1914] AC 599 at 609‑610.

42. In the first part of the 20th century, the rationale for the common law rules excluding evidence of certain out‑of‑court confessional statements was still understood to be reliability.  Wigmore, writing in the second edition of his work on Evidence[45], published in 1923, treated reliability as not simply the central, but the only, rationale for the common law rules relating to confessions.  That author said[46]:

    "The principle upon which a confession is treated as sometimes inadmissible is that under certain conditions it becomes untrustworthy as testimony.  ...  This theory, while developing different and inconsistent practical tests at the hands of various Courts, seems to have been generally accepted as the underlying and fundamental principle since the first introduction of any doctrine about the inadmissibility of confessions."

    Wigmore denied[47] that the exclusionary rules could rightly be founded in any considerations other than considerations of reliability.  He expressly rejected the notions that the rules were to be understood as related to breach of confidence or of good faith, or were to be engaged because of illegality in the method of obtaining the confession, or in the speaker's situation at the time of making it, or because of any connection with the privilege against self‑incrimination.

    [45]A Treatise on the Anglo-American System of Evidence in Trials at Common Law, 2nd ed (1923), vol 2 at 139‑142.

    [46]A Treatise on the Anglo-American System of Evidence in Trials at Common Law, 2nd ed (1923), vol 2 at 139‑140.

    [47]A Treatise on the Anglo-American System of Evidence in Trials at Common Law, 2nd ed (1923), vol 2 at 142‑144.

43. Yet it is clear that during the 20th century there was a major conceptual shift in the rationale for the law in this area.  First, there was introduced a concern for self‑determination as encapsulated by the maxim nemo debet prodere se ipsum (no one can be required to be his own betrayer or, in what Lord Diplock said[48] was "its popular English mistranslation 'the right to silence'").  It has been argued that this was a conflation, perhaps based on confusion, of the traditional requirement for voluntariness to determine reliability and the privilege against self‑incrimination[49].  Second, there emerged a concern to regulate police conduct by excluding evidence obtained by inappropriate police action.  There would seem little doubt that the latter concern was linked to the growth of a professional police force in the latter half of the 19th century and was both reflected in and grew out of the introduction of the Judges Rules in England in 1912[50].  However this may be, by the end of the 20th century, three rationales had been propounded[51] to support the rule excluding evidence of an out‑of‑court confession made in response to some threat or inducement made or offered by a person in authority:  reliability, self‑determination and regulation of police conduct.

    [48]See, for example, R v Sang [1980] AC 402 at 436.

    [49]Godsey, "Rethinking the Involuntary Confession Rule:  Toward a Workable Test for Identifying Compelled Self‑Incrimination", (2005) 93 California Law Review 465 at 477‑478; Bram v United States 168 US 532 (1897).

    [50]Framed or approved by the judges in England, for the guidance of the police in their inquiries:  R v Voisin [1918] 1 KB 531 at 539; Archbold, Pleading, Evidence & Practice in Criminal Cases, 28th ed (1931) at 406.

    [51]See, for example, DPP v Ping Lin [1976] AC 574 at 595 per Lord Morris of Borth‑y-Gest, 607 per Lord Salmon; Lam Chi‑Ming v The Queen [1991] 2 AC 212 at 217‑219.

44. It may be that the way in which the law has developed in other jurisdictions, notably Canada[52] and England[53], before statutory intervention[54], may best be understood as the rearticulation of applicable principles in ways intended to accommodate application of these other rationales to the exclusion of certain kinds of confessional evidence.  In particular, the treatment in those jurisdictions of the idea of "inducement" (and, perhaps, "person in authority") may owe much to accommodating principles of self‑determination and police regulation in a single test originally informed only by considerations of reliability.  Whether that is so need not be decided.

    [52]R v Hodgson [1998] 2 SCR 449; R v Oickle [2000] 2 SCR 3; R v Grandinetti [2005] 1 SCR 27.

    [53]DPP v Ping Lin [1976] AC 574 at 595 per Lord Morris of Borth‑y‑Gest, 607 per Lord Salmon; Lam Chi‑Ming v The Queen [1991] 2 AC 212 at 217‑219.

    [54]Police and Criminal Evidence Act 1984 (UK).

45. For present purposes, it is important to notice that the common law in Australia has developed in and since McDermott by identifying the three overlapping rules mentioned earlier in these reasons.  Those rules deal with confessional statements made to persons in authority, but also engage the considerations described as "basal voluntariness" and the application of the discretionary principles earlier mentioned.  Because the common law in Australia has developed in this way it is neither necessary nor appropriate to extend the concept of "person in authority" beyond those persons known or believed by the confessionalist to have lawful authority to affect the course of the investigation of or prosecution for the offence in question[55].

    [55]cf Grandinetti [2005] 1 SCR 27 at 39‑42 [38]‑[44].

46. In the present matters, the focus falls upon "basal voluntariness".

    Basal voluntariness

47. It is a definite rule of the common law of Australia that a confession made in response to a threat or inducement by a person in authority is inadmissible.  But it is also a definite rule that a confession must be made voluntarily before evidence may be given of it.  This latter rule, described as "basal voluntariness", derives directly from the common law principles in Warickshall where voluntariness was used as the touchstone of reliability.  But that is not to be understood as suggesting that the common law has not been further developed.

48. In his dissenting speech concerning the existence of a defence of duress to a charge of murder, the subject with which the House of Lords was concerned in Director of Public Prosecutions for Northern Ireland v Lynch[56], Lord Simon of Glaisdale pointed to the "chaotic terminology" in the classification of conduct as voluntary or involuntary for purposes of the criminal law.  His Lordship said[57]:

    "Will, volition, motive, purpose, object, view, intention, intent, specific intent or intention, wish, desire; necessity, coercion, compulsion, duress – such terms, which do indeed overlap in certain contexts, seem frequently to be used interchangeably, without definition, and regardless that in some cases the legal usage is a term of art differing from the popular usage.  As if this were not enough, Latin expressions which are themselves ambiguous, and often overlap more than one of the English terms, have been freely used – especially animus and (most question‑begging of all) mens rea."

    [56][1975] AC 653. Lynch was subsequently overruled in R v Howe [1987] AC 417.

    [57][1975] AC 653 at 688.

49. What can be said for the purposes of the present appeal is that in legal discourse the terms "voluntary", "voluntariness" and cognate terms take their colour from the particular context and purpose in which they are used.  Several contrasting examples may be given from the civil and criminal law.

50. In Ryan v The Queen[58], Windeyer J, when considering the proposition that the only acts punishable were voluntary acts of the accused, remarked:

    "The word 'involuntary' is sometimes used as meaning an act done seemingly without the conscious exercise of the will, an 'unwilled' act:  sometimes as meaning an act done 'unwillingly', that is by the conscious exercise of the will, but reluctantly or under duress so that it was not a 'wilful' act."

    [58](1967) 121 CLR 205 at 244.

51. The plea of non est factum which puts in issue the execution of an instrument by the defendant, who alleges the absence of a consenting mind, is kept within narrow limits to allow for the significance attached by third parties to the presence of a signature upon a document[59].  On the other hand, where an alienation of property is set aside on the ground of undue influence, the law responds to "an unconscientious use of any special capacity or opportunity that may exist or arise of affecting the alienor's will or freedom of judgment in reference to such a matter".  The words are those of Dixon J in Johnson v Buttress[60].  When Dixon J thereafter in McDermott[61] came to deal with "basal voluntariness" in the context of the law of evidence he used, as these reasons will show, different terms.

    [59]Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 182‑183 [48]‑[49].

    [60](1936) 56 CLR 113 at 134.

    [61](1948) 76 CLR 501 at 515.

52. What emerges are two general propositions, supported by what was said by Lord Wilberforce in Lynch[62] with reference to Barton v Armstrong[63].  The first is that only some of the means by which consent to act or speak may be obtained are classified unacceptable for the attribution of legal consequences.  The second is that what the law accepts in one field of legal discourse it may regard as unsatisfactory in another.

    [62][1975] AC 653 at 680.

    [63][1976] AC 104 at 125.

53. When one turns to the common law respecting the inadmissibility of some confessional statements, it must first be said that the common law tests of voluntariness have never required a subjective inquiry into the mind of the confessionalist to determine why it was that he or she made the statement of which evidence is to be given.  Rather, subject to what later is said about the discretion to reject confessional evidence, the common law rules have sought to operate by excluding evidence from consideration of the tribunal of fact that is deemed so unreliable as a class that it should not be available for consideration.  The exclusionary effect of the rules is important.  Although it is for the prosecution to demonstrate[64] that a confession was made voluntarily before it becomes admissible, the rules are essentially exclusionary in character.  The rules deal only with the admissibility of evidence of out‑of‑court confessional statements.  If the evidence is admitted, it remains open for the confessionalist to argue, and for the tribunal of fact to accept, that, even if the statement was made, it is not reliable.

    [64]R v Lee (1950) 82 CLR 133 at 144.

54. To the extent to which questions of fairness are distinct from reliability, and to the extent to which questions of controlling police conduct and methods are relevant, they are best dealt with under the discretion.  Questions of basal voluntariness are to be understood as informed only by considerations of reliability of the evidence concerned.  Do the circumstances in which the evidence was obtained fall into the category of cases which the law classifies as so likely to produce unreliable evidence that the evidence should be excluded from consideration by the tribunal of fact?  In order to make good the propositions just stated, it is necessary to consider what was said in McDermott.

    McDermott v The King

55. The reasons of Dixon J in McDermott[65] have rightly been taken to be the authoritative statement of the common law of Australia on the admissibility of confessions.  In McDermott, the Court decided[66] that, apart from special statutory provisions like what is now s 149 of the Evidence Act 1958 (Vic), a judge may exclude evidence of a confessional statement if "improperly procured by officers of police" even if "the strict rules of law, common law and statutory," do not require rejection of the evidence. The Court rejected the argument that evidence of a confession had to be rejected if the confession had been obtained in breach of the Judges Rules. But it is in the reasons of Dixon J that there is found reference to the notion of "basal voluntariness" and it is only by close analysis of those reasons that the content of that concept emerges.

    [65](1948) 76 CLR 501.

    [66](1948) 76 CLR 501 at 515.

56. The overarching common law rule was described[67] by Dixon J as being that "a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made".  The rule was amplified[68] in the immediately following sentences:

    "This means substantially that it has been made in the exercise of his free choice.  If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne.  If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary.  But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made ...  An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority (Ibrahim v The King[69]; R v Voisin[70])."  (emphasis added)

    The similarities between this statement of the applicable rules, and the passage quoted earlier from the first edition of Best on Evidence, are evident.

    [67](1948) 76 CLR 501 at 511.

    [68](1948) 76 CLR 501 at 511.

    [69][1914] AC 599 at 609‑610.

    [70][1918] 1 KB 531 at 537‑538.

57. The content given by Dixon J, in McDermott, to the word "voluntarily" is important.  As pointed out above, the overarching principle is that a confession cannot be admitted into evidence unless it is shown to have been made "voluntarily".  Both the rules governing the exclusion of evidence of certain confessions made to persons in authority and the principle of "basal voluntariness" take their place as aspects of this one principle.  Both also identify criteria that found a legal conclusion: that the confession was not made "voluntarily".

58. That this is the way in which the rules operate is most obviously apparent in the rule concerning statements made to persons in authority.  The particular content that is given to both the concept of "inducement" and the concept of a "person in authority" constitute the criteria that yield the relevant legal conclusion: that the confession was not made voluntarily.  But as the reasons of Dixon J in McDermott show, application of the rule about "basal voluntariness" also depends upon identifying the criteria that are to found the legal conclusion that a confession was not made "voluntarily".  The relevant conclusion is described as the will being "overborne".  The circumstances that yield that conclusion, and provide the criteria which govern the availability of the legal conclusion, are described as "the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure".  All are species of compulsion.

59. Further refining the content of the criteria that are engaged under the head of "basal voluntariness" must take account of the way in which the tests will fall for consideration.  "Basal voluntariness" may be seen as a principle underpinning the whole of the law relating to confessions.  But it is a principle that in practice will fall for consideration, if at all, only in cases not concerning a person in authority.  The test excluding statements preceded by an inducement in the form of fear of prejudice or hope of advantage held out by a person in authority necessarily excludes confessions in which a person in authority has so acted as to engage the principle of basal voluntariness.  For, of course, if a person in authority subjects a suspect to coercion, whether by threats of violence or other intimidatory acts, the rule excluding a confession made to a person in authority in response to an inducement is readily applied.  Further questions may then be engaged where the person in authority is an agent of the state.  Thus, the conduct of state agents will either be dealt with directly under the rules about statements to persons in authority or, if those rules do not require exclusion of the evidence, circumstances that are said to bear upon reception of the confessional evidence that state agents have obtained can be examined in connection with the exercise of the discretion.

60. Confessions made to someone not known or believed to be a person in authority will thus fall to be considered under the test of "basal voluntariness".  Basal voluntariness is concerned with confessions made under compulsion.  The key inquiry is about the quality of the compulsion that is said to have overborne the free choice of whether to speak or to remain silent.  In this context, "overborne" should be understood in the sense described[71] by Dixon J as "the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure".  It is necessary to focus upon the sufficiency of the compulsion.

    [71](1948) 76 CLR 501 at 511.

61. In McDermott, Dixon J treated overbearing of the will separately from the fear of prejudice or hope of advantage.  Fear of prejudice and hope of advantage were treated as the two species of the genus of inducements.  But, by contrast, overbearing of the will was confined to circumstances like duress.  Considerations of a fear of prejudice or the hope of advantage were seen as not only different from an overbearing of the will but also as relevant only to statements made to a person in authority.

62. Rarely, if ever, would the test of "basal voluntariness" exclude confessions where some hope of advantage (as distinct from fear of prejudice) was held out to the person who made the confession.  The "basal principle" of which Dixon J spoke[72] is "a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man's will" (emphasis added).  But there are few circumstances when an inducement in the form of a promise of advantage will compel a person to speak.  Promises of advantage that are not made by a person whom the confessionalist knows or believes to be a person in authority would rarely, if ever, be such as could found the conclusion that the speaker did not have a free choice to speak or remain silent.  That is not to say that the promising of an advantage may not bear upon the exercise of the discretion.  It may do so.

    [72](1948) 76 CLR 501 at 512.

63. Two further points should be made.  The first is negative and identifies what does not suffice to show that the will has been overborne.  The conclusion that a confessionalist had no choice to speak or stay silent is not required (and without more being established, would not be open) if it is observed that the confessionalist acted under some misapprehension or mistake, even if that misapprehension or mistake was induced by the person to whom the confession is made.  Nor is that conclusion required (and without more being shown the conclusion would not be open) if it is observed that there was some imbalance of power between the confessionalist and the person to whom the confession was made.

64. The second point to make is that the conclusion that a confessionalist had no choice to speak or stay silent is not readily reached where the confession was not made to a person whom the speaker knew or believed to be a person in authority.  In such a case, absent duress of person or intimidation, it will be necessary to articulate why there was no choice.  Was the importunity, insistence or pressure so sustained or persistent that there was no choice?  Why?  By hypothesis, the confessionalist did not know or believe that the weight of the state or its agencies bore upon him or her.  What, then, is said to have deprived that person of choice?  For the basal voluntariness rule to apply it must be possible to identify what it was that is said to have deprived that person of choice.

    The discretion

65. In only one of the present cases, the case of Clarke, did the appellant submit that the discretion to exclude the confession should have been exercised in favour of its exclusion from evidence.  It was submitted that the confession had been inappropriately or unfairly obtained by investigating authorities.  This being the particular basis of the appellant's complaint, it is neither necessary nor appropriate to attempt to chart the metes and bounds of the discretion.  Only those aspects of the discretion that are relevant to the facts in Clarke require application.  It is nonetheless important to begin consideration of the application of the discretion by reference to three decisions of this Court – R v Lee[73], Cleland v The Queen[74], and R v Swaffield[75].

    [73](1950) 82 CLR 133.

    [74](1982) 151 CLR 1.

    [75](1998) 192 CLR 159.

66. In Lee, the Court decided some questions about the operation of what is now s 149 of the Evidence Act 1958 (Vic). Those issues may be put to one side. But the decision in Lee is also important for what it decided about the circumstances in which a voluntary confession may be excluded in the exercise of the discretion.  The Court discountenanced asking[76], as separate questions, whether a police officer had acted "improperly" and then whether it would be unfair to reject the accused's statement.  Rather, it was said[77] to be "better to ask whether, having regard to the conduct of the police and all the circumstances of the case, it would be unfair to use his own statement against the accused".  And emphasis was given[78] to it being in the interests of the community that all crimes "should be fully investigated with the object of bringing malefactors to justice, and such investigations [not being] unduly hampered".

    [76](1950) 82 CLR 133 at 154.

    [77](1950) 82 CLR 133 at 154.

    [78](1950) 82 CLR 133 at 155. See also R v Jeffries (1946) 47 SR (NSW) 284 at 313.

67. In Cleland[79], a majority of the Court again emphasised the purpose of the rules as to confessions (and in particular the residual discretion) as being to ensure that the accused has a fair trial not, as Gibbs CJ put it[80], "to insist that those who enforce the law themselves respect it".  In that regard, Gibbs CJ expressly agreed[81] with what Brennan J had said in Collins v The Queen[82] that:

    "it is difficult to conceive of a case ... 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."

    [79](1982) 151 CLR 1.

    [80](1982) 151 CLR 1 at 8, quoting from Bunning v Cross (1978) 141 CLR 54 at 75 per Stephen and Aickin JJ.

    [81](1982) 151 CLR 1 at 9; see also at 17 per Wilson J, 34‑35 per Dawson J.

    [82](1980) 31 ALR 257 at 317.

68. It is in the setting provided by these earlier decisions of the Court that the decision in Swaffield is to be understood.  There, in the joint reasons of Toohey, Gaudron and Gummow JJ, it was pointed out[83] that it is not always possible to treat voluntariness, reliability, unfairness to the accused, and public policy considerations as discrete issues.  It followed[84] that:

    "The wider the operation given to the principle that, to be admissible, a confession must be voluntary, the less scope there is, in practice, for the exercise of the unfairness discretion.  Particularly is that so in relation to improprieties calculated to cause the making of an untrue admission.  It may be expected that improprieties calculated to have that effect will often impact on the exercise of a free choice to speak if that notion is given its full effect.  However, it will not necessarily be so in every case."

    But as was also pointed out[85], unreliability, although an important aspect of the unfairness discretion, is not the only consideration that may be engaged.  Other forms of disadvantage may arise.  The circumstances considered by this Court in Foster v The Queen[86] and in the Supreme Court of Victoria by Smith J in R v Amad[87] are notable instances of such other forms of disadvantage.  But the chief focus for the discretionary questions that arise remains upon the fairness of using the accused person's out‑of‑court statement, rather than upon any purpose of disciplining police or controlling investigative methods.

    [83](1998) 192 CLR 159 at 196 [74].

    [84](1998) 192 CLR 159 at 197 [76].

    [85](1998) 192 CLR 159 at 197 [78].

    [86](1993) 67 ALJR 550 at 554‑555; 113 ALR 1 at 7‑8.

    [87][1962] VR 545.

69. In the further consideration of the questions raised, in Clarke, about the refusal of the trial judge to exclude evidence of confessional statements the appellant had made, it will be necessary to examine not only the particular facts of the case that are said to have required the discretionary exclusion of the evidence, but also the principles that are to be applied in the appellate review of that decision.  The second of those questions is better left for consideration in conjunction with the application of the principles that have been stated in these reasons to the particular facts of that case.

    Tofilau

70. On 29 June 1999, Belinda Romeo was found dead in her unit.  She had been dead for some days.  She had died by ligature strangulation.

71. On the day after Ms Romeo's body was found, the appellant made a statement to police in which he described having met Ms Romeo about half way through March 1999.  They had commenced a sexual relationship and the appellant had moved into Ms Romeo's unit soon after they had met.  He said that he had stayed there for two weeks until he left and returned to live with relatives in Carlton.  He said that the last time he had seen Ms Romeo was at a club, in the early hours of the morning of Sunday, 20 June 1999.  He had subsequently tried to telephone her but with no result.

72. One month later, on 29 July 1999, the appellant was arrested and he took part in a videotape recorded interview at the offices of the homicide squad of the Victoria Police.  He denied any involvement in Ms Romeo's death and was released without being charged.

73. Little progress was made in the investigation of Ms Romeo's death during the next two years but in November 2001, the investigation took a new turn.  Between November 2001 and March 2002, police constructed a series of 16 scenarios in which undercover police operatives, posing as members of an organised criminal gang, interacted with the appellant.  The officer in charge of the police team subsequently gave evidence at the appellant's trial that he had been provided with only basic information about the circumstances surrounding the death of Ms Romeo and that very little information was given to the covert operatives.  He said that this was done so that leading questions would not be asked by operatives that might affect the reliability of any admissions they obtained and to ensure that they did not inadvertently disclose to the appellant that they knew anything about the matter.

74. It is not necessary to describe the techniques used by the undercover police officers.  Considerable emphasis was given to instilling in the appellant a sense of confidence that association with what he was led to believe was a criminal gang would bring not only financial and personal reward but also protection against police investigation.  The appellant participated in or observed what appeared to be serious criminal activity by gang members.  In fact, the "criminal" activity was staged.  From time to time reference was made in conversation between the appellant and members of the gang to the appellant's connection with the death of Ms Romeo.  Over time it was made plain to the appellant that it was important that the appellant tell the gang the whole truth about his background.  If he did, the problem could be handled.

75. The covert operations culminated in March 2002.  Police served a notice on the appellant foreshadowing an application to the Magistrates Court for permission to take a sample from him for DNA analysis.  (He had refused to give such a sample when he was interviewed in 1999.)  One of the gang members, on being told that the notice had been served, exhorted the appellant to tell the truth.  He told the appellant that he did not believe what the appellant had earlier said and that he believed that the appellant had killed Ms Romeo.  The appellant then admitted to killing Ms Romeo by strangling her with something she had round her neck.  As the trial judge put it[88], the appellant was "effectively persuaded" by one of the covert operatives to give a full and frank account of the killing to the gang's boss.

    [88](2003) 13 VR 1 at 6 [15].

76. The appellant was then taken to a meeting, in a hotel room, with the man whom he understood to be the "boss".  What happened in that room was videotape recorded.  The "boss" told the appellant that he did not have to say anything, that he could "get up and walk out now" but that the "boss" could not help him if he did.  The boss went on to say[89]:

    "But we can help you, we can make this go away but you'll have to tell me everything that happened so that I make sure that we cover all the bases."

    The appellant then described to the "boss" how he had killed Ms Romeo.  He said that he had disposed of the scarf he had used to strangle her by leaving it in a car behind the units where Ms Romeo lived.

    [89](2003) 13 VR 1 at 6 [15].

77. On the day following this conversation the appellant was arrested, taken to the offices of the homicide squad, and there he participated in a tape recorded interview.  He denied that he had been to the hotel but, when the recording was played, he accepted that the voices on the recording that had been made of the conversation at the hotel were his, and that of the "boss".  The appellant denied strangling Ms Romeo and said that he had decided to pretend that he had committed a murder so that he could work in the gang.

78. In the course of the interview, the appellant was shown a scarf found in a car behind Ms Romeo's unit.  He denied ever having seen it before.  It was put to the appellant that he had told the "boss" about throwing the scarf with which he had strangled Ms Romeo into a car at the back of the block of units.  He was asked how he could explain how he knew where the scarf had been found if his story about participating in the murder was all an invention.  He declined to offer any comment.

79. The trial judge[90] and the Court of Appeal[91] held that what the appellant had said to gang members and the boss were not statements made to a person in authority.  These conclusions were correct.  During the recorded interview with officers of the homicide squad the appellant said, "I don't know if he's [the boss is] a cop or not."[92]  Because the appellant neither knew nor believed that those to whom he spoke had lawful authority to affect the course of the investigation of or prosecution for the murder of Ms Romeo, the rules about confessional statements to persons in authority were not engaged.

    [90](2003) 13 VR 1 at 11 [32].

    [91](2006) 13 VR 28 at 67 [170].

    [92](2006) 13 VR 28 at 47 [84].

80. The trial judge[93] further held that evidence of what the appellant had said in the conversations was not to be excluded as not being made voluntarily.  (The better view may be that no distinct point about basal voluntariness was argued in the Court of Appeal, though it is plain that reference was made to the subject.)  However this may be, the trial judge's conclusion on that subject was correct.

    [93](2003) 13 VR 1 at 16 [51].

81. The statements the appellant made to undercover police officers were not made under compulsion.  Nothing that was said to or done with the appellant constituted compulsion of a kind that would meet the criteria leading to the conclusion that what was said was not said voluntarily.  There was no duress or intimidation.  The police operation was elaborate and took place over an extended period.  The appellant thought that he would benefit from saying what he did.  More than once the appellant was told how important it was that he be frank about his past and about the circumstances of Ms Romeo's death in particular.  He was repeatedly told that if he had a problem the boss would make it "go away".  But no coercion was applied to the appellant by those to whom he made his confession.  There was no importunity, insistence or pressure of a kind exerted by those to whom the confession was made that would found the conclusion that the appellant had no free choice whether to speak or stay silent.  Observing that the appellant may have felt under pressure requires no different conclusion.  What is important is the absence of coercion by those to whom he spoke.  That he may have felt under the pressure that he himself generated by his desire to join the gang and thus gain not only the financial benefits said to follow from that membership but also resolution of what otherwise appeared to be his inevitable prosecution for murder is not to the point.

82. The appeal to this Court should be dismissed.

    Marks

83. This appellant was charged with the murder of his great‑aunt, Margaret Mary O'Toole.  She was found dead in her home on 17 April 2002.  She had been beaten to death.  In April 2002, the appellant owed more than $28,500 on credit card accounts.  His accounts were overdrawn.  One creditor had obtained judgment against him.  The previous year, in April, the deceased, accompanied by the applicant, had borrowed $28,000, secured by mortgages over certain real estate, for use in a "business investment".  There was evidence, and there were admissions made by the appellant, from which it would have been open to the jury to conclude that the appellant had received the money which his great‑aunt borrowed.  There was evidence of the appellant borrowing other money from her.  There was also evidence from which it would have been open to the jury to conclude that the deceased either had called for repayment of the money lent or proposed to do so.

84. In May 2002, police arrested the appellant, cautioned him, searched his premises, and conducted a videotape recorded interview.  He was not then charged with the deceased's murder.

85. Between 25 September 2002 and 27 November 2002 the Victoria Police Undercover Unit conducted an operation of the same kind as has been considered in the matter of Tofilau.  Again, the operation culminated in an interview with the "boss" of the criminal gang conducted in a hotel room.  Again, the "boss" said that he did not care whether the appellant was responsible or not for the death of the deceased but that he needed to know what had happened so that the situation could be "handled".  The appellant described to the "boss" how he had killed the deceased and what he had done after doing so.

86. At his trial the appellant submitted that evidence of these statements should be excluded.  On the voir dire he adduced evidence from a consulting clinical and forensic psychologist that, in his opinion, the appellant was suffering from a borderline personality disorder as well as a dependent personality disorder and an adjustment disorder, in addition possibly to an anti‑social personality disorder.  Presumably this evidence was directed to showing what had moved the appellant to say what he did.  For the reasons given earlier, the application of the rule about basal voluntariness neither required nor permitted that kind of inquiry.  The relevant inquiry was about whether those who had secured the confession had coerced the appellant; it was not about the appellant's state of mind.

87. The trial judge concluded[94] that there was no evidence that the will of the accused was overborne and that the prosecution had discharged the onus of demonstrating basal voluntariness.  He concluded[95] that the rule about confessions to persons in authority was not engaged because the person to whom the statements were made was not known or believed to be a person in authority.

    [94]Marks (2004) 150 A Crim R 212 at 224 [70].

    [95](2004) 150 A Crim R 212 at 225 [75].

88. The appellant's appeal to the Court of Appeal against his conviction on grounds including that the trial judge erred in failing to exclude evidence of the out‑of‑court confessions to the "boss" was dismissed.  For the reasons given in respect of the matter of Tofilau, the appeal to this Court should also be dismissed.  The statements in issue were not made to a person in authority.  They were not made under compulsion.  No challenge was made in this Court to the failure to exclude them in exercise of the discretion.

    Hill

381. Since no other basis was advanced on which to criticise Coldrey J's reasoning or the Court of Appeal's acceptance of it[471], this aspect of the Marks appeal fails.

     [471]R v Marks [2006] VSCA 42 at [186].

     "Basal involuntariness":  the circumstances of Hill

382. Although counsel for Hill at the trial did not contend that Hill's confession should be excluded on the ground of basal involuntariness[472], Bongiorno J dealt with that issue.  He held that the accused was not overborne, and his will was not affected by what the gang members said.  He said that Hill's admissions were made "in a free exercise of his will to speak or not to speak.  He could at any stage have left.  The only 'inducement' for him to remain and to continue talking to the police was a hope of gain or reward which they offered out to him."  The trial judge thus did not consider that Hill was influenced by any assistance which the gangsters might be able to give in terminating the investigation of his stepbrother's murder.  The Court of Appeal held that that conclusion was open:  Hill had expressed confidence to one "gangster" that the police had no evidence linking him with the stepbrother's murder[473].

     [472]R v Hill [2006] VSCA 41 at [106]-[107].

     [473]R v Hill [2006] VSCA 41 at [102].

383. Apart from relying on some factual submissions advanced by each of the other appellants which are irrelevant to Hill's circumstances, counsel's principal point was that the questioning by the gangsters was so persistent as to cause the confession to be "dragged out of him", and to be made, as Hill later claimed in his record of interview with non-undercover police officers, "under compulsion".  It is true that Callaway JA described the questioning as "persistent"[474], but counsel referred to no evidence which supported the broader submission, and the questioning could not be described as "duress, intimidation, persistent importunity, or sustained or undue insistence or pressure".  This aspect of Hill's appeal fails.

     [474]R v Hill [2006] VSCA 41 at [3].

     "Basal involuntariness":  the circumstances of Clarke

384. Kellam J had the benefit of observing "the demeanour and the manner in which the [appellant Clarke] commenced to make the admissions"[475] which had been recorded.  He also observed Clarke being cross-examined on the voir dire.  The trial judge found that, while the undercover officers misled him about their identity, and while they overstated the progress of the police investigation, Clarke had a free choice whether to speak or not[476].  He was told to tell the truth; he was offered a choice whether or not to speak about the death of Bonnie Clarke; he was given the opportunity to leave without saying anything; and the trial judge specifically rejected Clarke's evidence that if he had left he would have received a beating.  The trial judge concluded[477]:

     "But in the end result, and in all the circumstances, the accused had a choice as to whether he spoke up or did not.  He was offered the choice of not proceeding with his endeavours to join the criminal organisation or of doing so and telling ... the truth.  He chose the latter course."

     And the trial judge pointed to many admissions by Clarke during the voir dire that he was weighing up his options[478].  He also pointed to a statement by Clarke that it was his choice to stay because of "the pure fact of greed for money"[479].

     [475]R v Clarke [2004] VSC 11 at [49].

     [476]R v Clarke [2004] VSC 11 at [46]-[49].

     [477]R v Clarke [2004] VSC 11 at [49].

     [478]R v Clarke [2004] VSC 11 at [50]-[52].

     [479]R v Clarke [2004] VSC 11 at [51].

385. The factual finding, accepted by the Court of Appeal[480], that Clarke had a free choice whether to speak or not was challenged in this Court.  It was submitted that:

     "The trial judge concentrated on the objective circumstance of [the gangsters] saying that he could leave at any time without bringing into the mix the reality that if he did leave it was inevitable that he would be charged with murder.  It is unrealistic to find that the Appellant exercised an effective choice to speak or remain silent."   

     It was conceded that nothing said by the undercover police officers to the appellant "expressly forced" him to speak.  Nevertheless, the supposed gang leader's "statements to the Appellant that he could leave at any time were, in reality, quite hollow.  The same was true if he continued in his denials of murder".  Why the statements were hollow was not explained. 

     [480]R v Clarke [2006] VSCA 43 at [125] per Vincent JA (Callaway and Buchanan JJA concurring).

386. It was also submitted: 

     "The situation was tantamount to the Appellant having a loaded gun held at his head and [the 'gang leader'] saying to him 'if you deny it the trigger will be pulled, but you are free to deny it.'  This is not freedom to speak or remain silent."  (emphasis in original)

     The example would fit Dixon J's test, but the facts are far removed from the example.

387. Counsel for Clarke read out numerous selected passages from the conversations with the "gangsters" which led to the confession.  While some of those passages revealed the appellant to be under increasing stress, the primary purpose of counsel's selections was to establish that Clarke believed that unless he confessed it was inevitable that he would be charged with murder and convicted; and hence that he believed he had no choice but to confess.  Indeed counsel went so far as to submit that "it was not open to the judge to find other than that the appellant was in fear of the murder charge and confessed as a result of this fear".  Counsel submitted that this negated any suggestion that the appellant was free to leave at any time.

388. The primary flaw in these arguments is that, while the appellant was told that the police would not give up their investigation and was also told that they had some information adverse to him, the evidence did not establish that the appellant believed that unless he confessed he would be charged with murder and convicted, or that any such belief caused him to confess.  Contrary to the appellant's submissions, the trial judge was entitled to rely on the appellant's admissions on the voir dire that he saw himself as having a choice, and that he chose to stay because of greed, and to prefer those admissions over the rather more speculative inferences about the appellant's beliefs which counsel sought to draw from the tape recorded interviews with the undercover officers. 

389. Even if Clarke were deceived into speaking by the false representations of the police officers as to who they were and as to the extent of the police investigation, which they "overstated"[481], it does not follow that he did not exercise a free choice to speak.  Counsel for Clarke submitted: 

     "These inducements followed upon months of calculated manipulations of his personal situation and condition.  They included the actual commission of crime."

     It was submitted that the purpose "of the process was corruption of the legal system".  That criticism is false.  No crimes were committed.  No corruption of the legal system took place.  Counsel for Clarke also submitted that the function of the basal involuntariness rule was to operate as a disincentive against undesirable practices of the kind which the police officers had engaged in.  The proposition that the police practices were undesirable is questionable.  They were in no way unlawful.  Whether they were improper in such a manner as to justify discretionary exclusion is a matter for consideration below[482].    

     [481]R v Clarke [2004] VSC 11 at [79] per Kellam J.

     [482]Below at [391]-[414].

     Section 149 of the Evidence Act

390. It may be controversial whether s 149 is capable of applying to evidence which does not offend the inducement rule but is affected by basal involuntariness. Even if s 149 is capable of applying, since it has been contended that basal involuntariness does not arise here, no occasion arises to consider whether in fact s 149 would assist the appellants.

     Discretionary exclusion

391. Clarke applied towards the end of the first day of hearing to amend his notice of appeal.  The new ground contended that the Court of Appeal had "erred in failing to determine that the trial judge had erred in not excluding, in the exercise of his discretion", the admissions made by Clarke to the gang leader. 

392. Events at trial.  At trial counsel for Clarke (who was not the counsel appearing in the Court of Appeal or this Court) put three arguments to Kellam J:  that Clarke was denied the opportunity to exercise his rights; that the manner in which the admissions were obtained placed Clarke at "a massive forensic disadvantage"; and that the nature of the covert operation was such as to require exclusion of the admissions on public policy grounds.

393. Clarke's first argument at trial.  The first argument was that the covert operatives denied Clarke any of his rights under the provisions of Pt III Div 1 Subdiv 30A of the Crimes Act. Counsel submitted that the gang boss was dominant in his relationship with Clarke; that in consequence he discouraged Clarke from responding to a police request for a DNA sample; that the "prop" – a supposed progress report into the state of the police investigation – which he supplied Clarke with contained material falsehoods; that he indulged in hectoring, bullying and overbearing behaviour in circumstances where Clarke had not been given the opportunity to be questioned by non-undercover officers; and that he had thus not been able to exercise any of the rights given by those provisions of the Crimes Act.

394. Kellam J accepted that, although in the videotape of his discussions with the boss Clarke revealed no distress and gave no sign of being under threat or coercion, he was hectored and harangued to a significant degree, in a manner which would be unacceptable in a formal police interview. He also accepted that the prop was fabricated and that while no piece of information in it was untrue, it contained several exaggerations. Indeed the available admissible circumstantial evidence fell a long way short of being sufficient to charge Clarke. Thus he was not in custody or something akin to custody and was not subject to the compulsion of the state. He was not under any compulsion by threat of violence. He thus had no vulnerability flowing from custody or compulsion of that kind. He had no rights under the relevant provisions of the Crimes Act because he was neither in custody nor a suspect, and because the police officers were engaged in covert investigations[483].  The means employed against Clarke were deceptive, but they did not circumvent any express exercise by Clarke of his right not to talk to police officers.  Kellam J found that although the relationship between Clarke and the boss was unequal, it did not compare with the inequality between a person in custody and police officers.  Nor did the boss unfairly exploit the inequality.  Clarke wanted to impress the boss in order to join the gang and avoid the consequences of the police investigation.  Kellam J concluded that the means employed by the covert operatives were not disproportionate to their purpose of investigating the serious crime of murdering a six year old girl. 

     [483]See Crimes Act, s 464(2) (definition of "investigating official"), ss 464A and 464C, discussed above at [342].

395. Clarke's second argument at trial.  The second argument advanced by counsel for Clarke at the trial was that reception of the admissions would create the forensic disadvantage of revealing Clarke to be a person with a criminal past who was prepared to engage in criminal acts in the future and to encourage the criminal acts involved in interfering with the police investigation. 

396. Kellam J accepted that while this difficulty could be lessened by editing parts of the confessional statements, it could not be wholly cured, for some prejudicial material would remain.  However, he thought that the forensic disadvantage could be overcome by careful jury directions, and he indicated that the issue might have to be reconsidered as the trial proceeded. 

397. Clarke's third argument at trial.  The third argument advanced at trial by counsel for Clarke was that employment of the particular covert operation was too high a price to pay:  it involved the deliberate depraving of an apparently reformed offender, and it was a technique with obvious dangers if used by corrupt police officers.  Although Kellam J found force in the submission, he said[484]:

     "[T]he fact is that the accused exercised his own free will in this regard.  Indeed, he joined in the exercise with some enthusiasm.  Significantly, and contrary to the then belief of the accused, no actual criminal act occurred.  The police conduct, although dramatic, was not unlawful.  Police officers acting as covert operatives did not commit any crimes.  In particular the purported criminal activity was not designed to introduce the accused man into such activity in order to arrest and charge him for it but, rather, used as an investigative tool to solve an extremely serious crime."

     Kellam J concluded that the task was to balance the individual and public interest in protecting the rights of the accused against the public interest in the effective investigation and prosecution of serious crime, and that the conduct of the undercover operatives was not sufficiently unacceptable to cause the evidence to be excluded[485].

     [484]R v Clarke [2004] VSC 11 at [98].

     [485]R v Clarke [2004] VSC 11 at [66]-[102].

398. The Court of Appeal.  The Court of Appeal found no appellable error in Kellam J's approach[486].

     [486]R v Clarke [2006] VSCA 43 at [129]-[134].

399. Counsel's submissions in this Court.  Counsel for Clarke in this Court submitted that while it was conventional to analyse discretionary exclusion of confessions as involving two "discretions" – to reject a confession the reception of which would be unfair[487], and to reject a confession that was illegally or improperly obtained on public policy grounds[488] – in truth there was but a single "discretion"[489].  It is not necessary to resolve this question, since the outcome of the appeal will be the same whatever the answer.  He also submitted that in any event what was involved was not a "discretion" but a rule of law, and relied on an analogy with the rule excluding evidence the prejudicial effect of which exceeded its probative value.  It is not necessary to resolve that question either, for the same reason, although the appellant's submission is open to question, and quite out of line with past linguistic usage in this field.

     [487]R v Lee (1950) 82 CLR 133.

     [488]Cleland v The Queen (1982) 151 CLR 1.

     [489]He cited R v Swaffield (1998) 192 CLR 159 at 202 [91] per Toohey, Gaudron and Gummow JJ.

400. Counsel for Clarke submitted that Kellam J's reasoning contained four errors.

401. The first alleged error was his conclusion that Clarke was not in a vulnerable position.  The error lay in a failure to appreciate that Clarke believed that if he left the operatives he would inevitably be charged with murder.  It also lay in a failure to appreciate fully, or weigh, the fact that the boss held himself out as a person with significant power over the progress of the police investigation.

402. The second alleged error related to the forensic disadvantage which reception of the admissions created for Clarke in revealing a criminal propensity.  Counsel submitted that Kellam J was wrong to conclude that the forensic disadvantage of having this evidence of bad disposition admitted could be overcome by judicial warnings.

403. Thirdly, it was alleged that there was another forensic disadvantage.  This argument, which is not recorded by Kellam J as having been put to him, related to the nature of the questioning engaged in by the boss.  Counsel submitted: 

     "[T]he judge erred by placing no weight upon the impact of the nature of the questioning ... and the effect that such questioning would have upon the [appellant's] decision whether or not to give evidence at his trial.  Here the questioning was protracted.  It included continual statements of disbelief with regard to the [appellant's] denials.  It was in the nature of oppressive haranguing and exhortation."

     Counsel relied on R v Amad[490] and R v Pritchard[491].

     [490][1962] VR 545.

     [491][1991] 1 VR 84.

404. The fourth error alleged by counsel for Clarke was that the boss, and other covert officers, exploited the vulnerability of Clarke by a process of psychological duress.  "Minimum standards of the conduct of law enforcement officers whether covert or otherwise would never permit subjecting a suspect to this form of duress in an attempt to obtain confessional evidence."  It was said that Kellam J erred in placing too much weight on the enthusiasm with which Clarke joined in the scenarios and on the fact that the police officers did not commit any crimes. 

405. Consideration of the appellant's arguments.  The first submission and, in part, the fourth, rest on the proposition that Clarke was in a vulnerable position.  That proposition, and the contentions underlying it, were rejected above for reasons which need not be repeated[492]. 

     [492]See above at [384]-[389].

406. As to the forensic disadvantages of the scenario evidence in revealing Clarke's criminal propensity, it misrepresents Kellam J's reasoning to suggest that he relied only on the effect of jury directions to cure the problem.  He relied also on the effect of editing, and left open the possibility of the problem being revisited later if necessary.  The Court was taken to no passage indicating that counsel for Clarke at the trial took up this invitation.  In any event the prejudicial effect of the criminal propensity revealed was insignificant compared to the prejudicial effect of what he admitted about the murder of Bonnie Clarke.

407. So far as the forensic disadvantages of hectoring questioning are concerned, there is no close analogy between the authorities on which Clarke relied and the present case.  R v Amad[493] concerned questioning by non-covert police officers of an accused person held in custody who had not been cautioned. The questioning was in breach of the Police Commissioner's Standing Orders, and there were other improprieties. Here Clarke was not in custody, the police officers lacked the material to place him in custody, there was no breach of either the Crimes Act or the modern equivalent of the Police Commissioner's Standing Orders, and there were no improprieties. In addition, the reasoning of Smith J towards his conclusion that the discretion should be exercised against reception reflects a distaste for the employment at trials of lies by persons being interrogated. Whether evidence should be excluded on the grounds under consideration is a question depending very much on the specific facts of the particular case, and Smith J's approach to the employment of lies is not necessarily determinative in other cases.

     [493][1962] VR 545.

408. In R v Pritchard, which was again, unlike the present case, a case involving interrogation in custody in breach of the Chief Commissioner's Standing Orders[494], the outcome turned on the unfairness of depriving the accused of his right to make an unsworn statement by reason of receiving evidence of police interrogation in which the interrogator repeatedly and derisively revealed disbelief in the accused's denials.  The particular aspect of the right to make an unsworn statement which was stressed was the right to give a version of events without being subjected to cross-examination.  That kind of thinking has no application in Victoria now in view of the fact that the right to make an unsworn statement has been abolished.  But again, since the decision to exclude the evidence depends closely on the facts of each case, the reasoning in R v Pritchard is not determinative in the circumstances of this case, which will now be considered below[495]. 

     [494][1991] 1 VR 84 at 91.

     [495]Below at [413].

409. The submission that Kellam J erred in failing to conclude that the way Clarke was treated fell below acceptable standards of police conduct must be rejected for the following reasons. 

410. Counsel for Clarke correctly accepted that so far as his arguments turned on exclusion because of illegal or improper means, the factors listed by Stephen and Aickin JJ in Bunning v Cross[496] were relevant.  Two of these in particular are adverse to Clarke's submissions.  One is the nature of the offence charged – here not only a murder, but a particularly vicious and horrifying murder.  This was a factor which on occasion counsel, in his emphasis of the need for compliance with particular standards, submitted was irrelevant:  but to accept that submission would be radically to change the law, as counsel admitted, and for the worse.  The other is whether the police conduct affected the cogency of the evidence[497].  That Clarke said what the prosecution alleged he said is clear beyond doubt, for what he said was recorded, and he did not deny saying it.  There is no reason to disagree with Kellam J's conclusion, after he had closely compared what Clarke said with the objective evidence, that the admissions were "not inherently unreliable" and that "it would be open in all the circumstances for a jury to consider that the manner in which the admissions are shown to have been made on the video-tapes is such that they are reliable"[498].  The Court of Appeal agreed with that conclusion[499], and no attack was made on it in this Court, beyond a throwaway assertion that the conduct "may well have" affected the cogency of the evidence.  That assertion must be rejected. 

     [496](1978) 141 CLR 54 at 78-80. See also R v Swaffield (1998) 192 CLR 159 at 212-213 [135] per Kirby J.

     [497]If the matter is viewed as resting on unfairness rather than public policy, the likelihood or unlikelihood of the interrogation producing an untrue admission is equally relevant:  R v Lee (1950) 82 CLR 133 at 153 per Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ.

     [498]R v Clarke [2004] VSC 11 at [64].

     [499]R v Clarke [2006] VSCA 43 at [128].

411. Three other relevant Bunning v Cross factors are whether any illegality was the result of an innocent mistake or a deliberate disregard of the law, whether it was easy to comply with the law, and what the specific intention of the legislation infringed was.  These do not arise in terms because there was no illegality, as counsel for Clarke twice conceded, then denied, but then, correctly, twice conceded again.  Counsel for Clarke however submitted that the conduct was improper.  He submitted – correctly – that it was plainly deliberate.  He also submitted that it would have been easy for the police to have behaved properly, by questioning Clarke in a conventional fashion.  It is true that that would have been easy, but it is also true that conventional questioning had failed in the past. 

412. Counsel for Clarke said that three further factors were relevant[500].  One was that the conduct was encouraged or tolerated by those in higher authority:  plainly it was.  Another was that the conduct was inconsistent with a right of Clarke's which was fundamental, namely the "right to silence".  That submission must be rejected in view of the conclusions reached above that the admissions were voluntary and that Clarke saw himself as having a choice which he exercised for his own purposes[501].  That is, he had a right to silence but he chose not to exercise it.  The final factor was whether the conduct would involve the court itself in giving, or appearing to give, effect to impropriety in a way that would be incompatible with the functions of a court, or which might damage the repute and integrity of the judicial process.  Counsel for Clarke submitted that for police officers to promise to secure immunity from prosecution when in fact they intended to prosecute was an act of bad faith and corruption, which if permitted by this Court, would cause "the very authority of the State ... itself [to] be placed in jeopardy".  It was improper for the state to put moral or psychological pressure on individuals in a process of actively eliciting confessions – as improper as it is for the state to put physical pressure on them for that purpose. 

     [500]Relying on factors (v) to (vii) as stated by Kirby J in R v Swaffield (1998) 192 CLR 159 at 213 [135].

     [501]Above at [384]-[389].

413. The correctness of that submission must be evaluated against the following circumstances.  The police had failed – and their failure was not said to be culpable – to collect sufficient evidence against Clarke to charge him.  The crime being investigated was very serious[502]. It had remained unsolved for 20 years. The scenario technique was one which had been in use for a long time in Canada, and had been approved by the Canadian courts. It was not embarked on as an unthinking frolic by junior officers. It had been deliberately selected by the superiors of those involved in the light of Canadian experience. No alternative was available if the investigation was to continue. It was reasonable for the police to seek to employ this technique, new in Australia, in carrying out their important duty to investigate an old crime. The technique was employed in a discriminating way, with considerable care being taken to avoid illegality. No doubt psychological pressure was built up, but conventional police interrogation of the most proper kind naturally involves pressure. Counsel submitted that the process was "designed to circumvent the [appellant's] right to silence". Clarke was in fact an experienced criminal who understood that he did not have to answer anyone's questions. He had not claimed any right to silence when interviewed by non-undercover officers soon after the murder. He actively cooperated in the questioning by the undercover officers. The questioning took place in the course of a relationship which he entered freely, and did not exploit some pre-existing or collateral relationship. The interrogation elements in the conversations were patent, and consistent with the roles which he believed the undercover officers were occupying. He had not been charged, and there was no proper basis to charge him. There was no illegality and no breach of Police Standing Orders. Part III Div 1 Subdiv 30A of the Crimes Act did not apply. The failure of other investigative methods which made it necessary to conduct the undercover operation also made it necessary for a process of active "elicitation" to take place. The admissions eventually obtained formed a significant part of the prosecution case. The operatives stressed the need to tell the truth. The undercover officers did not prey upon any special characteristics of Clarke related to his gender, race, age, education or health. The means of elicitation were not so disproportionate to the problem confronting the police as to be inherently unfair or contrary to public policy.

     [502]See, in relation to the seriousness of the crime, Cleland v The Queen (1982) 151 CLR 1 at 17 per Murphy J.

414. If Kellam J's decision is to be viewed as discretionary, it cannot be said that he made any error of fact or law, took anything irrelevant into account or failed to take anything relevant into account; nor that the result was so unjust as to suggest some error not apparent on the face of his reasoning.  If his discretion is not to be viewed as discretionary, it was correct for the reasons set out above.  In either event the Court of Appeal was right not to interfere with it. 

415. In view of the importance of the issue raised by the application for leave to amend, it is appropriate to grant that leave, but to reject the new ground of appeal.

     A cautionary note

416. Nothing said above should be taken as a warrant for any undiscriminating reception of evidence gathered by police officers operating covertly.  Plainly, as these appeals show, it is desirable that covert operations be undertaken from time to time, and they can be undertaken without damaging the integrity of the police force, or indeed of the system of criminal justice itself.  Covert operations can however be risky.  Sometimes the covert officers will, as a matter of necessity, be remote from close supervision and the discipline that it entails.  Seduction of officers by criminals is not unknown.  Covert officers can be placed in danger.  Their response to that danger may cause them, however understandably, to act in a way that might otherwise be thought irregular.  But none of those factors were present in the circumstances out of which these appeals arose.  The trial judges in these cases were in all respects careful and discriminating in considering and admitting the relevant evidence.

     Orders

417. Each appeal is dismissed.