Sections 76-93


Part 3.3: Opinion

Section 76: The Opinion Rule


Smith (Mundarra)
(1999) 47 NSWLR 419; [1999] NSW CCA 21.10.99
See also R v Morris (CCA, 21.10.99) and R v West (CCA, 21.10.99). Evidence Act 1995 (NSW) s.76 – police familiar with accused identified him from bank security film - whether evidence excluded by s.76 Held: evidence by police officers was not evidence of opinion but was direct evidence that a person shown in the photos was accused - not excluded by s.76.
(NB: High Court allowed appeal on basis evidence not relevant)

 

Marsh

NSW CCA [331] 20.9.2005

Evidence Act 1995 (NSW) ss 76, 79 – bank robbery - images of accused captured by bank’s security cameras - photo published in newspaper - evidence of recognition by accused’s sister admitted into evidence – accused not identified by witnesses in photo ID parade Held: In Smith no suggestion that police officers enjoyed particular advantage in recognizing accused – in this case sister had obvious advantage – because of history of relationship evidence of sister was direct evidence making ss.76 and 79 irrelevant – also admissible under s.79 as opinion evidence

Drollett

NSW CCA [356] 4.11.2005

Evidence Act 1995 (NSW) s.76 – assault on prisoner in prison yard – offence recorded on video but image unclear – evidence given by prison officer that he saw appellant in yard immediately prior to assault – identified appellant from video – did not eye-witness assault – familiar with appearance of appellant Held: appeal allowed - considered application of Smith – evidence relevant because witness very familiar with appearance of appellant and jury had very little opportunity to view appellant due to security arrangements at trial – but evidence not evidence of fact but opinion because purported to identify someone from scene not personally witnessed – evidence of fact if could say video accurately represented scene actually witnessed – instead witness merely selected image he believed to be appellant and followed him through the scene on the video

Gonzales

(2007) 178 A Crim R 232 at [21]-[26]

Evidence Act 1995 (NSW) s 76 Held: following Reid [1999] NSWCCA 258 – phrase ‘is not admissible’ means not admissible if objection made – where no objection evidence not wrongly admitted

 

Irani

[2008] NSW CCA 217, 18.9.2008

Evidence Act 1995 (NSW) s 137 – supply cocaine – supplies to undercover informant with listening device – Det Robinson prepared transcript of tapes listening to them over several months and discussing with informant – identified voice of appellant when brought to police station as person heard on tapes – whether similar to dock identification – whether identification prejudiced by fact appellant arrested at time – whether jury in same position as Det to make comparison (Smith question) Held: appeal dismissed – Det became ad hoc expert from months of listening to tapes – identification not similar to dock identification because of expertise – weaknesses in identification matter for jury – Det in better position than jury to make identification because of expertise

 

Morgan

[2016] NSWCCA 25

Police officer listened for many hours to recording of voices from listening device in stolen car and recording of telephone calls between accused and girlfriend from gaol – ad hoc expert

Held – rejected argument that Honeysett (2014) 253 CLR 122 at [48] cast doubt on admissibility of ad hoc experts – High Court has not ruled on matter

 

Nguyen

[2017] NSWCCA 4

Evidence Act 1995 (NSW) s 76, 78, 79 - Whether evidence of police constable purporting to identify the voice recorded on the telephone intercepts as that of A was inadmissible - comparison of voices on telephone intercepts and electronically recorded interview – whether admissible as identification evidence – whether subject to exclusion as opinion evidence – whether experience of repeated listening results in ad hoc expertise – whether admissible as expert evidence

Held: Leave to appeal not granted. Evidence admissible.

 


 

Section 77: Exception: Evidence Relevant Otherwise Than As Opinion Evidence


GET
NSW CCA 25.6.1998
Evidence Act 1995 (NSW) - s.77, 78 - video ROI showed appellant moving around during interview - police gave evidence appellant did not appear to be in any pain during record of interview
Held: evidence admissible - evidence led by Crown to counteract any suggestion that police had unfairly conducted interview while appellant in pain - opinion based upon what police officer saw, heard or perceived.

 


 

Section 78: Exception: lay opinions

Harvey

NSW CCA 11.12.1996
Evidence Act 1995 (NSW) s.78 - sexual offences by school teacher on female pupils - another teacher gave evidence of seeing appellant and child in office - appellant had look of “sexual gratification” on face.
Held: evidence admissible - opinion evidence may be admitted without evidence of primary facts upon which opinion is based - absence of such evidence may affect weight of evidence - evidence should have been excluded under s.137.

Panetta
NSW CCA 2.10.1997; (1997) 26 MVR 332
Evidence Act 1995 (NSW) s.78 - dangerous driving causing GBH - witness driving in opposite direction said appellant’s car approached at 100 kph or more
Held: s.55 requires rational basis for opinion before admissible under s.78 - in this case no rational basis for opinion - evidence should not have been admitted - should have been a voir dire to determine if opinion had rational basis - in this case irrationality of opinion not obvious until cross-examination

GET
NSW CCA 25.6.1998
Evidence Act 1995 (NSW) - s.77, 78 - video ROI showed appellant moving around during interview - police gave evidence appellant did not appear to be in any pain during record of interview
Held: evidence admissible - evidence led by Crown to counteract any suggestion that police had unfairly conducted interview while appellant in pain - opinion based upon what police officer saw, heard or perceived.

Fernando & Fernando
NSW CCA [66] 14.4.1999
Evidence Act 1995 s.78 –murder - evidence in Crown case in reply from police officer and Aboriginal liaison officer as to their opinion of accused - both witnesses have had extensive prior dealings with accused
Held: evidence admissible - opinions based on their dealings with accused and their local knowledge - lay persons permitted to express opinions on a wide range of matters eg identity of persons, speed, weather, handwriting, a person’s age.
Leung
(1999) 47 NSWLR 405; NSW CCA [287] 15.9.1999
Evidence Act 1995 (NSW) - s78, s.79 - police recorded conversations between appellants speaking in Cantonese at premises where drug offences took place - appellants later took part in ERISPs - police asked interpreter to compare voices on tapes and ERISPs - interpreter testified that the voices of the appellants on the ERISPs matched voices on the tapes
Held: voice comparison is not necessarily matter for expert evidence - if tape recordings had been in English, it would have been open to Crown to have left it to jury to make their own comparison - interpreter’s opinion admissible under s.79 as “ad hoc expert” through repeated listening to the tapes.

Van Dyk
NSW CCA [67] 17.3.2000
Evidence Act 1995 (NSW) - s78 - sexual assault - mother of complainant gave evidence that when appellant around girls he had ‘look of wanting’ on his face.
Held: followed Harvey - evidence admissible - should have been excluded under s.137 - transitory nature of a look - long delay.
 
Nguyen
[2006] NSWSC, 834 (Hulme J) 29.8.2006
Evidence Act 1995 (NSW) s.78, 79 - murder – admissibility of evidence of police officers identifying offenders from CCTV cameras
Held: evidence relevant and admissible - distinguished Smith – evidence based on what police officers saw, heard or perceived – specialized knowledge based on experience with accused
 
Whyte
[2006] NSW CCA 232
Evidence Act 1995 (NSW) s.78 – sexual assault – complainant said ‘a man tried to rape me’ – whether inadmissible as opinion evidence
Held: evidence admissible but on varying grounds:
Barr J – admissible as reporting of event – comment was not an opinion
Spigelman CJ – admissible under s.78 – conditions under (b) met
Simpson J – not admissible under s.78 because (b) not met
 
Partington
[2009] NSW CCA 232
Evidence Act 1995 (NSW) s.78 – manslaughter – victim killed in struggle in stairwell of flats – female heard struggle through door in one of the flats – gave evidence noise sounded like ‘someone’s head was being pushed up against the door’ – whether evidence inadmissible as opinion evidence
Held: (per McClellan CJ at CL, RA Hulme J agreeing) - evidence inadmissible – opinion evidence did not satisfy requirements of (b) – door deprived witness of capacity to perceive what was happening on the other side of the door – opinion not relevant to understanding her perception of events as she heard them from inside – consideration of cases dealing with application of (b)
(per Grove J) – agreed with McClellan’s application of (b) – not convinced evidence was opinion as opposed to a description
 
Lithgow City Council v Jackson
[2011] HCA 36
Evidence Act 1995 (NSW) s 55, 69, 78 – civil case – Respondent found badly injured in a park at the base of a 1.41m wall – Issue at trial was whether respondent fell down unprotected vertical face of wall, or stumbled down more sloped parts of wall either side - Trial judge found respondent had failed to establish causation - Respondent sought to rely upon statement made in ambulance record by officers attending scene:
"? Fall from 1.5 metres onto concrete"
Trial judge ruled statement could not be relied upon as evidence of the truth of its contents. Neither ambulance officer was called to give evidence - on appeal court held statement admissible and could be used to establish causation.
Held: appeal allowed – appeal to Court of Appeal dismissed
Whether statement was an opinion [27]-[38]
[38] … The impugned representation cannot be said to have stated an "opinion" even in the Court of Appeal's sense. The ambulance officers' records are so shrouded in obscurity about what data they observed and suggest so great an unlikelihood that that data could support, or were seen as pointing to, any definitive inference that it is not possible to find on the balance of probabilities what the impugned representation was stating. It is therefore not possible positively to find that it stated an opinion.
Whether s.78(a) satisfied [39]-[46]
The ‘matter or event’ the subject of the opinion was the fall – officers could not give an opinion as to the fall because they did not see, hear or perceive it - Term ‘perceive’ refers to witness’ personal perception of an event - The purpose of the section is to allow a witness to give his or her impression of an event or matter that they have seen where it is difficult to state the bald facts. Such impressions, however, must be based on personal perceptions of the matter of event - In this case the statement of the ambulance officers was not in relation to an event they personally witnessed but they had
reasoned backwards from their perceptions of the [respondent] when they first saw him, to his position at an earlier point in time, which they did not see
Whether s.78(b) satisfied [47]-[57]
Not the type of facts that needed the witness to express an opinion in order to properly communicate their perception
[48] Evidence about a place in which a person has fallen and about the injuries of that person is not within the category of cases where lay opinion evidence was admissible at common law and is admissible under s 78. The function of the law in relation to that category is to permit reception of an opinion where the primary facts on which it is based are too evanescent to remember or too complicated to be separately narrated. Where the evidence is that a person appeared to be drunk or middle-aged or angry, for example, it is impossible in practice for the observer separately to identify, remember and narrate all the particular indications which led to the conclusion of drunkenness, middle age or anger. For that reason, s 78 permits the conclusion to be stated: without it the evidence does not convey an adequate account or generate an adequate understanding of the witness's perception of the sobriety, age or emotional state being observed. But in cases of the present type the primary facts are not too evanescent to remember or too complicated to be separately narrated. It would be possible for an observer to list his or her perceptions of specifically identifiable medical circumstances of someone found in a drain, perceptions of specifically measurable distances between limbs and other objects and perceptions of specifically describable angles of limbs. Professional investigators like police officers, for example, commonly make precise measurements of that kind and compose diagrams to illustrate what they have measured. Those persons can often remember what they have measured even without recourse to their notes. The process is not one where component observations are made which are incapable of meaningful expression without stating the composite opinion to which they led. It is not necessary, in order to obtain an adequate account or understanding of perceptions of that kind, that the opinion be received. Whether it would be possible for an observer who had compiled these details then to say at which point the person found in the drain fell into it would depend on whether the tender was relying on s 78 or s 79. At common law, expert opinion evidence can be given as to the cause of injuries by inference from their nature. There is no reason to doubt that similar evidence in suitable form, from suitably qualified experts, about the causation of injuries is admissible under s 79. Had the ambulance officers given evidence of the medical and physical details they observed, it would have been admissible. But a statement of a conclusion by them that the respondent fell from a particular place would be opinion evidence banned by s 76. It would not have passed through the s 79 gateway into admissibility because they were not experts. It would not have passed through the s 78 gateway into admissibility because it failed to satisfy s 78(b).
The term ‘necessary’ does not refer to the situation where other evidence is not available and the opinion offers the best evidence. It refers to the relationship between ‘the perceiver's perceptions and the perceiver's opinion’. Was the opinion necessary to obtain a proper understanding of what the witness ‘saw, heard or perceived’. [54] Although unnecessary to decide the point, it is probably not required that the witness gives an account of all the observations and perception upon which the opinion is based – although
[57] …It is true, though, that the less the witness or other observer states his or her primary perceptions, the harder will it be for the tendering party to establish the condition of admissibility in s 78(a) (because of the difficulty of establishing that the opinion is "based" on the perceptions) and the condition of admissibility in s 78(b) (because of the difficulty of establishing that the opinion is necessary to obtain an adequate account or understanding of the person's perceptions)

    

Ravindran (No.2)

[2013] NSWSC 1056 Campbell J

Evidence Act 1995 (NSW) s.78 – murder – admissibility to advanced care paramedic talking to accused – Crown sought to ask When you were speaking to the son, did you make any observations about the way he was speaking to you?"

Held: despite experience and training answer does not constitute expert evidence – is admissible under s.78

[5] On the other hand, I think any mature, sober adult is able to express opinions about the observed emotional state of other human beings. This type of evidence was always admissible at common law, and such matters were taken to be, in an old-fashioned phrase, within the ken of ordinary folk. Section 78 of the Evidence Act, it seems to me, does much the same work, and in my view an opinion of the type that the Crown will seek to elicit from the witness is admissible by way of that exception to the hearsay rule.

 

Briggs (No.3)

[2014] NSWSC 852 Button J

Evidence Act 1995 (NSW) s.78 – murder – witness saw accused after alleged attack – expressed opinion accused appeared aggressive – agreed (a) satisfied – whether (b) satisfied

Held: subsection (b) not made out where witness can give evidence of primary observations that form basis of opinion as to demeanour – not necessary – applied Lithgow City Council v Jackson (2011) 244 CLR 352

 

Nguyen

[2017] NSWCCA 4

Evidence Act 1995 (NSW) s 76, 78, 79 - Whether evidence of police constable purporting to identify the voice recorded on the telephone intercepts as that of A was inadmissible - comparison of voices on telephone intercepts and electronically recorded interview – whether admissible as identification evidence – whether subject to exclusion as opinion evidence – whether experience of repeated listening results in ad hoc expertise – whether admissible as expert evidence

Held: Leave to appeal not granted. Evidence admissible.

 

 


 

Section 79: Exception: opinions based on specialised knowledge

G

(1997) 42 NSWLR 451; NSW CCA 31.10.1997
Evidence Act 1995 (NSW) s.79 - sexual assault by step father - after complaint made family organized for complainant to see psychologist - psychologist of opinion that complainant sexually abused, but probably by father whom she spent one month with when she was three.
Held: evidence correctly rejected - excluded by s.409B Crimes Act - psychologist probably lacked “specialized knowledge” required by s.79, because opinion lacked “scientific rigour”

Moore
NSW CCA 23.4.1998
Evidence Act 1995 (NSW) - s.79 - sentence hearing.
Held: report from criminologist should not have been admitted - not same specialist knowledge as psychologists and psychiatrists - different to pre-sentence report.

Kingswell
NSW CCA 2.9.1998
Evidence Act 1995 (NSW) s.79 - police officer gave evidence he was of opinion accused using counter surveillance techniques.
Held: “specialized knowledge” included police officers who had undergone specialized training and study in area of surveillance and had field experience

HG
(1999) 197 CLR 414; HCA 9.2.1999
Evidence Act 1995 (NSW) s.79 – sexual assault - opinion evidence of psychologist that complainant was sexually assaulted by natural father and not appellant ruled inadmissible by trial judge.
Held: expert should differentiate between assumed facts upon which opinion based and opinion in question - important that expert witnesses be confined under s.79 to opinions which are based on their “specialized knowledge” - experts who venture opinions outside their field may invest those opinions with spurious appearance of authority and legitimate processes of fact-finding may be subverted.

Leung
(1999)47 NSWLR 405; NSW CCA [287] 15.9.1999
Evidence Act 1995 (NSW) - s78, s.79 - police recorded conversations between appellants speaking in Cantonese at premises where drug offences took place - appellants later took part in ERISPs - police asked interpreter to compare voices on tapes and ERISPs - interpreter testified that the voices of the appellants on the ERISPs matched voices on the tapes
Held: voice comparison is not necessarily a matter for expert evidence - if tape recordings had been in English, it would have been open to the Crown to have left it to the jury to make their own comparison - interpreter’s opinion admissible under s.79 as “ad hoc expert” through repeated listening to the tapes.

Rees
NSWSC (Bell J) [544] 16.6.2000
Evidence Act 1995 (NSW) s.79 - murder - admissibility of DNA evidence - conflict of expert evidence as to reliability of evidence - whether amount of DNA too small for reliable sample - whether analysis method sufficiently recognized as reliable body of knowledge to be opinion evidence.
Held: evidence admissible.

Gallagher
NSWSC [462] Barr J 4.5.2001
Evidence Act 1995 (NSW) s.79 - DNA evidence - consideration of admissibility of Profiler Plus system.
Held: test under s 79 more liberal than Frye test.

Quesada
(2001) 122 A Crim R 218; NSW CCA [216] 30.5.2001
Evidence Act 1995 (NSW) s.79 - importation of drugs - appellant sought to lead evidence from psychologist explaining response of appellant when interviewed by police after arrest.
Held: evidence inadmissible - not area where psychologist has specialized knowledge - lay person would know person would be frightened when confronted by police.

Lam
(2002) 135 A Crim R 302; NSW CCA [377] 7.11.2002
Evidence Act 1995 (NSW) s.79 - supply heroin - taped conversations by accused in “code language” concealing drug transactions - translation of taped conversations by ex-police inspector based on experience in drug field - whether expert evidence - whether admissible
Held: ground rejected on Rule 4; but reference made to other authorities in which this type of evidence relied upon as expert evidence.

Rose
(2002) 55 NSWLR 701; NSW CCA [455] 19.11.2002
Evidence Act 1995 (NSW) s.79 - murder - Crown led evidence of expert as to matching of dust
Held: no error in allowing evidence - witness had specialized geological knowledge

TA
(2003) 57 NSWLR 444; 139 A Crim R 30; NSW CCA [191] 25.7.2003
Evidence Act 1995 (NSW) s.79 – sexual offences – appellant drugged complainant then videotaped sexual interaction – Complainant claimed no memory of events – appellant sought to show certain portions of video and seek complainant’s opinion as to her state of mind as shown on the video – questions not allowed on basis answers would be irrelevant
Held: appeal dismissed – complainant not an expert witness – had no recollection of incident – evidence irrelevant (see Smith)

Li
(2003) 139 A Crim R 281; NSW CCA [290] 23.10.2003
Evidence Act 1995 (NSW) s.79 – importation – admissibility of evidence of translator who listened to surveillance tapes for many hours
Held: appeal dismissed – translator ad hoc expert in identification of appellant’s voice by virtue of hours of listening to and translating tapes

Bartle & Ors
NSW CCA [329] 3.12.2003
Evidence Act 1995 (NSW) s.79 – importation – whether TJ erred in allowing co-accused M to state his opinion about conversation to which he was not party – conversation between co-accused B and B1 – B’s evidence that conversation about M not being interested in setting up boat charter business – M’s evidence that M not interested in drug importation admissible based on M’s training, study or experience, namely experience gained by speaking to B1 in a conversation about which B and B1 later spoke
Held: there may be doubt whether M’s experience in speaking to B was capable of being specialised knowledge under s 79 - additionally, although point not argued, not clear how M’s opinion about meaning of conversation could have passed test for relevance - unnecessary to resolve questions because even if evidence wrongly admitted no miscarriage of justice

Davis
NSW CCA [298] 3.9.2004
Evidence Act 1995 (NSW) s.79 – Sexual offences – appellant claimed intercourse consensual - doctor gave evidence that it was “highly probable that sexual assault, both anal and vaginal intercourse had occurred” – doctor found no injury in anus or vagina
Held: evidence should not have been admitted – given that doctor found no injuries to anus or vagina her opinion that sexual assault was highly probable must have been substantially influenced by complainant’s account – not specialised knowledge
 
Howard
NSW CCA [25] 15.2.2005; (2005) 152 A Crim R 7 Evidence Act 1995 (NSW) s79 – cannabis offence – cannabis found on premises of accused – accused absent from premises for several months – Crown relied upon evidence of expert that age of cannabis established accused in possession prior to absence
Held: appeal allowed – failure to establish necessary expertise – not admissible under s.79(a):
[29] The only matter or event was the viewing and identification of the cannabis. The opinion evidence was an assertion of something said to have happened beforehand (harvest) and specifying the time which must have elapsed between the harvest and the viewing, a progression which [the witness] did not purport to see, hear, or otherwise perceive.
 
Marsh
NSW CCA [331] 20.9.2005
Evidence Act 1995 (NSW) ss 76, 79 – bank robbery - images of accused captured by bank’s security cameras - photo published in newspaper - evidence of recognition by accused’s sister admitted into evidence – accused not identified by witnesses in photo ID parade
Held: In Smith no suggestion that police officers enjoyed particular advantage in recognizing accused – in this case sister had obvious advantage – because of history of relationship evidence of sister was direct evidence making ss.76 and 79 irrelevant – also admissible under s.79 as opinion evidence
 
Tang
[2006] NSW CCA 167, 161 A Crim R 377
Evidence Act 1995 (NSW) s79 – bank robbery – admissibility of evidence of specialist in facial identification and body mapping – called by Crown to give evidence as to comparison made between stills taken from videotape of robbery and photos of accused
Held: allowing appeal – evidence not inadmissible per Smith because videotape photos too blurry to permit jury to make independent comparison
Held: In order to be admitted under s79 Evidence Act 1995 an opinion must satisfy the two limbs of the section – ‘”specialised knowledge” derived from either “training, study or experience” and the opinion must be shown to be based “wholly or substantially” on the identified area of specialised knowledge.
Held: On the evidence at trial there does appear to be an area of specialised knowledge based on facial identification.
Held: However, no foundation was laid that evidence of body mapping constitutes an area of specialist knowledge.
Held: The witness did not reveal her process of reasoning and therefore failed to satisfy the second limb of s79.
Held: Evidence of similarities between the photographs of the appellant and the photographs of the third offender was admissible - evidence based on witness’ specialised knowledge and on experience gained through multiple viewing of the two sets of images.
 
Jung
[2006] NSWSC 658, Hall J 29.6.2006
Evidence Act 1995 (NSW) s79 – murder – admissibility of evidence of specialist in facial identification – called by Crown to give evidence as to comparison made between image of assailant on CCTV and photos of accused – crown to rely only upon evidence of similarities not opinion as to identity of image on CCTV
Held: allowing appeal – evidence not inadmissible per Smith – consideration of conditions for admissibility of expert opinion evidence – evidence relevant and based on specialized knowledge - Witness clearly disclosed factual material utilised, and nature of methodology - weakness of evidence a matter of weight and does not make it inadmissible - evidence admitted
 
Keller
[2006] NSW CCA 204 26.7.2006
Evidence Act 1995 (NSW) s79 – drug supply – admissibility of evidence of AFP officer with specialist experience in drug matters – gave evidence that subject matter of recorded conversations between accused and another concerned drug supply.
Held: Evidence inadmissible – if witness has stated conversation consistent with drug transaction evidence would have been admissible – witness stated conversations were about drug transactions without establishing opinions based wholly or substantially on specialized knowledge – failure to expose reasoning process or witness to allow evaluation of opinion.
 
Nguyen
[2006] NSWSC, 834 (Hulme J) 29.8.2006
Evidence Act 1995 (NSW) s.78, 79 - murder – admissibility of evidence of police officers identifying offenders from CCTV cameras
Held: evidence relevant and admissible - distinguished Smith – evidence based on what police officers saw, heard or perceived – specialized knowledge based on experience with accused
 
Hannes v DPP (Cth) No.2
[2006] NSW CCA 373
Evidence Act 1995 (NSW) s.79 – insider trading and financial transaction offences – executive director of company used confidential information to purchase share options – handwriting expert called to compare writing of accused with documents allegedly written in course of offences
Held: appeal dismissed – consideration of principles of admissibility of expert evidence – importance of expert explaining and setting out reasoning for making conclusion so jury can proper assess evidence – not necessary that each reason for reaching conclusion was referable to specialized knowledge (Velevski)
 
Nguyen
[2007] NSW CCA 249
Evidence Act 1995 (NSW) s 79, 137 – drug offences – evidence from police officer admitted giving opinion that words used in telephone transcripts referred to drugs
Held: appeal allowed – evidence should not have been admitted – police officer impermissibly gave opinion that conversation “in fact” referred to drugs, not could have referred to drugs – not opinion evidence based only on specialized knowledge – failed to disclose reasoning process behind opinion – evidence should have been excluded under s.137 as liable to distract jury
 
Muldoon
[2008] NSW CCA 315, 18.12.2008
Evidence Act 1995 (NSW) s 79, 137 – BES – occupant returned home to see men running away from house and entering bush – tracking dog used – appellant and co-appellant found nearby in bush by dog
Held: appeal dismissed – evidence of dog trainer as expert admissible – weaknesses in ability of dog clearly before jury and caused no unfair prejudice
 
Dodds
[2009] NSW CCA 78
Evidence Act 1995 (NSW) s 79 – Conspiracy to AR – evidence of telephone transcripts conducted in pig latin – evidence from police officer on meaning of words and fact that language often used by criminals to conceal meaning – expertise obtained from working in robbery squad for over 4 years
Held: appeal dismissed – no error in admitting evidence of police officer as expert
 
Morgan
[2011] NSW CCA 257
Evidence Act 1995 (NSW) s 79 – body mapping evidence given by biological anthropologist and anatomist – found high level of anatomical similarity between images on CCTV and photos/images of accused
Held: appeal allowed – in circumstances of case description simplistic and not based on specialised knowledge – comparison could have been done by jury - no error in admitting evidence of police officer as expert – Smith applied
 
Cooper
[2011] NSW CCA 258
Evidence Act 1995 (NSW) s 79 – Murder – accused alleged victim became violent while drinking with accused and de facto – report prepared by psychiatrist finished with observation that victim’s history of past violence when affected by drugs and alcohol supports suggestion that victim aggressive and violent at time of death – whether trial counsel erred in not using evidence of report
Held: appeal dismissed – no miscarriage in failing to use report – expert opinion must be based upon facts - very little evidence in this case to support assumed history of violence – concluding paragraph in report an observation not an expert opinion – was tendency evidence that would not have satisfied tendency test under s.97
 
Hawi (No.24)
[2011] NSWSC 1670 24.8.2011
Evidence Act 1995 (NSW) s.79 – murder, riot and affray – violent confrontation between two motorcycle gangs at airport resulting in death – application to tender evidence of expert viewing footage from CCTV
Held: application refused – comments of expert as to clothes and jewellery visible in footage not based on expertise as anatomist – remaining comments on images not relevant on basis jury in equal position to make judgment (Smith)
 
Gilham
[2012] NSWCCA 131
Evidence Act 1995 (NSW) s.79 – murder – evidence from doctors as to similarity in wound patterns
Held: Applied test from Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [32] – admissibility under s.79 requires both that the witness has specialised knowledge and the opinion is based wholly and substantially on that knowledge – in this case evidence failed test [345]
 
Honeysett
[2013] NSWCCA 135
Evidence Act 1995 (NSW) s.79 – Professor Henneberg as professor of anatomy gave evidence of comparison between CCTV footage and videos of appellant from police station – found 8 common features
Held: evidence admissible - not evidence of conclusion but evidence of similarities only – ad hoc expert from detailed examination of videos that would assist jury
 
Ravindran (No.2)
[2013] NSWSC 1056 Campbell J
Evidence Act 1995 (NSW) s.78 – murder – admissibility to advanced care paramedic talking to accused – Crown sought to ask When you were speaking to the son, did you make any observations about the way he was speaking to you?"
Held: despite experience and training answer does not constitute expert evidence – is admissible under s.78
 

Honeysett

[2014] HCA 29

Evidence Act 1995 (NSW) s.79 - Professor Henneberg as professor of anatomy gave evidence of comparison between CCTV footage and videos of appellant from police station – found 8 common features - concluded "high degree of anatomical similarity" - unable to discern any "anatomical dissimilarity" - opinion not based on anthropometric measurement or statistical analysis

Held: discussion at [23]-[24] as to specialised knowledge based on the person's training, study or experience - Prof H's opinion was not based wholly or substantially on his specialised knowledge within s 79(1) - based on a subjective impression of what he saw when he looked at the images - would have been open to crown to have invited jury to make comparison – not an ad hoc expert – error for NSWCCA to distinguish Morgan - evidence should not have been admitted

 

Campbell

[2014] NSWCCA 175

Evidence Act 1995 (NSW) s.79 – murder – expert evidence on mechanics of human body in terms of movement and reaction – evidence given by Professor formally qualified in physics and expert in field of plasma physics – where some matters relied upon were matters generally known – whether expert qualifications established

Held: at [225]-[228] – expert can rely upon some matters generally known where arriving at an expert opinion – relationship between s.79 and s.80 – no error

Held: at [229]-[234] – Crown failed to establish relevant expertise in this case – appeal dismissed on proviso

 

Sterling, McCook

[2014] NSWDC 199, Yehia SC DCJ

Evidence Act ss 55, 79, 137 – prison assault – accused identified by prison officers from CCTV footage – one accused observed by prison officers over period of 3 weeks – second accused observed by prison officers over 4 months – CCTV footage not clear – application of Smith - whether officers in better position than jury to make identification – whether ad hoc expert opinion – whether possible contamination of opinion caused by discussion between officers prior to identification as to who which prisoners were in the footage

Held: Evidence not admissible – evidence in relation to first prisoner not relevant under s 55 – only generally observed by officers over three weeks – Smith applied – officers in better position than jury to identify second prisoner so evidence relevant under s.55 – opinion evidence as 'ad hoc expert' admissible under s.79 – neither prison officers qualified as ad hoc experts – possible contamination of evidence made it prejudicial under s.137

 

Rawlinson, Proud, Spicer

[2014] NSWSC 224, Harrison J

Evidence Act s 79(1) – murder – death caused by fire at home of victim – objection to evidence of police officer as to cause and origin of fire

Held: 'specialised knowledge' not defined - while educational qualifications not as extensive as another expert training and practical experience attending 225 fires provides specialised knowledge

 

Suh

[2014] NSWDC 233, Norrish QC DCJ

Evidence Act s 79(1); 108C – child sexual abuse – admissibility of evidence of Professor of Behavioural Sciences that behaviour observed by teacher of alleged child victim aged 3-5y was sexualised behaviour consistent with child having been sexually abused

Held: consideration given to requirement of 'meaning, study or expertise' – academic qualifications – clinical experience – extensive reading – specialised knowledge established

 

Lambaditis

[2015] NSWSC 182, Hall J

Evidence Act s 79 – murder - martial arts training – Crown proposes to call expert evidence to establish that the accused possessed martial arts skills said to have been employed in the assault that occurred on the deceased -  whether the accused proficient in martial arts techniques – whether expert evidence capable of establishing such proficiency – whether the evidence in the Crown case admissible as expert opinion evidence on a state of mind issue on a charge of murder – namely as proof of an intention to cause grievous bodily harm

Held: The opinion evidence in question could not be relevant to a fact in issue in the proceedings – the evidence even if admissible should be excluded under s 135 or s 137 Evidence Act 1995

 

Do (No.1)

[2015] NSWSC 106, Davies J

Evidence Act s 79 – murder – female victim murdered in home – bloody footprints found near body – Crown sought to lead evidence from police officer comparing footprints with foot impression of accused, deceased and third person

Held: not satisfied as to specialised expertise of witness – need to be podiatrist or similar training – can give factual evidence as to taking of impressions – jury can make own comparison (Honeysett) – need specialised knowledge to comment on impressions made by sunken arches – no specialised knowledge]

 

Duncan

[2015] NSWCCA 84

Evidence Act 1995 (NSW) s.79 – sleeping judge – appellant alleged judge slept through portions of trial - sought to tender medical report from treating physician dated two years after trial and referring to diagnoses of sleep apneoa

Held: per Simpson J at [46] medical diagnosis opinion evidence admissible under s.76 although sometimes very close to statement of fact – can be relevant under s.79 -per Campbell J at [217] – medical diagnoses admissible under s.79 – in this case however no relevance

 

Morgan

[2016] NSWCCA 25

Police officer listened for many hours to recording of voices from listening device in stolen car and recording of telephone calls between accused and girlfriend from gaol – ad hoc expert

Held – rejected argument that Honeysett (2014) 253 CLR 122 at [48] cast doubt on admissibility of ad hoc experts – High Court has not ruled on matter

 

Nguyen

[2017] NSWCCA 4

Evidence Act 1995 (NSW) s 76, 78, 79 - Whether evidence of police constable purporting to identify the voice recorded on the telephone intercepts as that of A was inadmissible - comparison of voices on telephone intercepts and electronically recorded interview – whether admissible as identification evidence – whether subject to exclusion as opinion evidence – whether experience of repeated listening results in ad hoc expertise – whether admissible as expert evidence

Held: Leave to appeal not granted. Evidence admissible.

 

 


 

Section 80: Ultimate Issue and Common Knowledge Rules Abolished

G

(1997) 42 NSWLR 451; NSW CCA 31.10.1997
Evidence Act 1995 (NSW) s.80 - sexual assault by step father - after complaint made family organised for complainant to see psychologist - psychologist of opinion that complainant sexually abused, but probably by father whom she spent one month with when she was three.
Held: evidence not inadmissible just because psychologist opinion directed at ultimate issue.

Smith
(2000) 116 A Crim R 1; NSW CCA [388] 10.5.2000
Evidence Act 1995 (NSW) s.80 - armed robbery - Crown case relied upon identification - appellant sought to tender report on appeal from Professor of Psychology expressing opinion that risk of false identification substantial.
Held: common knowledge rule abolished by s.80 - evidence prime facie admissible - need to consider exclusion under s.137 on basis undue waste of time - in this case did not meet test of fresh evidence.

 


   

Part 3.4: Admissions

Section 82:   Exclusion of evidence of admissions that is not first-hand

Staas (No.2)

[2013] NSWDC 220, Cogswell SC DCJ

Evidence Act 1995 (Cth) s.82 – confiscation of proceeds – Crown seeking to rely upon admission made to psychologist contained in report tendered at sentence hearings – psychologist not called to give evidence

Held: evidence of admissions excluded – document under s.82 refers to a document authored by person against whom admissions to be tendered – not someone's report of admissions – psychologist could have been called to give evidence of having heard admissions

 

  

Section 84: Exclusion of admissions influenced by violence and certain other conduct

Truong

(1996) 86 A Crim R 188; ACT SC (Miles CJ) 19.3.1996
Evidence Act 1995 (Cth) s.84 - armed robbery - admissions.
Held: common law abolished and replaced by s.84 - onus upon prosecution to satisfy court that admission not influenced by improper conduct - Bunning v Cross (1978) 141 CLR 54.

L.L
NSWSC (Smart J) 1.4.1996
Evidence Act 1995 (NSW) s.84 -exclusion of admissions influenced by violence and certain other conduct.

Fernando
NSWSC (Abadee J) 12.5.1997
Evidence Act 1995 (NSW) s.84 – murder – admissions of alleged confessions made to police
Held: no real dispute in terms of admissions to police - trial judge satisfied caution given - both adopted notebook entries without compulsion - volunteered to assist further without improper pressure or compulsion - no unfairness in admitting evidence.

Hinton
(1999) 103 A Crim R 142; ACT SC Higgins J 16.3.1999
Evidence Act 1995 (Cth) s.84 - conspiracy to pervert the course of justice - agreed to be shot by motorcycle gang as punishment for indiscretion – told police shooting was accidental.
Held: statements should not have been admitted - influenced by threats of physical harm - threats do not have to come from police or any person in authority - included threats made by motorcycle gang

Fernando & Fernando
[1999] NSW CCA 65, 14.4.1999
Evidence Act 1995 (NSW) s.84 - murder
Held: admissions not influenced by violent or degrading conduct - always a matter of degree as to whether persistent questioning by police after accused has indicated he does not wish to answer any further questions has gone too far.

Helmhout & Ors (no.2)
NSWSC [225] Bell J 25.2.2000
Evidence Act 1995 - s 84 - accessory after the fact to murder - female accused with 7m baby - comment made by police officer that if she did not tell the truth she would look like a bad mother to the Court
Held: evidence of interview with police inadmissible - comment amounted to oppressive conduct - Crown failed to prove admissions not made as result of conduct.

Douglas
NSW CCA [275] 28.7.2000
Evidence Act 1995 (NSW) - 84 - robberies - claimed made admissions after allegedly being told by police he could not contact solicitor.
Held: behaviour of police not violent, oppressive, inhuman or degrading - failed to show confession resulted from alleged conduct of police.

Ye Zhang
NSWSC [1099] Simpson J 1.12.2000
Evidence Act 1995 - s 84 - murder - admissions made during interview with police for purpose of assessing suitability of accused for witness protection program - where police offered protection in context of either co-operate or be charged with murder - police threatened physical violence - accused told he would receive reduced sentence for co-operation - told would receive no further opportunity to co-operate once police left room.
Held: evidence of interview with police inadmissible - combination of circumstances amounted to oppressive conduct.

Rahme
NSW CCA [414] 16.10.2001
Evidence Act 1995 (NSW) - s84 - possession of drugs - two co-accused - use of evidence of an admission - whether TJ erred in admitting evidence of statements made by appellant in ROI.
Held: TJ erred in permitting appellant’s co-accused to use appellant’s ROI, which had been excluded under s84, in manner adverse to appellant’s interests - appeal allowed.
 
Higgins
NSW CCA [56] 9.3.2007
Evidence Act 1995 (NSW) - s84 – fraud – manager of bank banked $78,303 cheque from elderly client – interviewed by bank investigators – advised things said may be used in “the bank’s deliberation” – whether inadequate caution – whether misleading – whether oppressive or unfair to admit evidence of interview
Held: no error - s 84 does not require single reason or single incident of misconduct - may be number of factors working together (Zhang [2000] NSWSC 1099, per Simpson J) - oppression not limited to physical or threatened physical force but can include mental and psychological pressure
 
Ul-Haque
NSWSC [1251], Adams J, 5.11.2007
Evidence Act 1995 (NSW) – ss.84, 85, 138 – terrorism offences – 21y male confronted by ASIO agents in car park of train station – taken to park for questioning – made to believe he was under compulsion to co-operate and answer questions – implicit threats – mode of questioning intimidating – not advised of rights – taken to family home where search being undertaken under warrant – interviewed in bedroom – not advised of rights – not allowed to communicate with brother – prompted answers – implicit threats – ‘gross breach of powers given to officers under search warrant’ – officers committed offences of false imprisonment and kidnapping – AFP officer present during interview
Subsequently sent to AFP for interview – inadequate caution given in view of oppressive conduct of, and implicit threats made by, ASIO officers – video tape suggested accused cowed – accused believed AFP working with ASIO – at end of interview advised AFP did not think accused had done anything wrong and was being treated as a witness – at second AFP interview required to provide more detail – between second and third interview had informal discussion with AFP officers urging better co-operation
Held: evidence of AFP interviews excluded – conduct of ASIO officers oppressive under s.84 – conduct continued during AFP interviews – presence of AFP officer at earlier interview with ASIO suggested link – message throughout all interviews was co-operate or else – interviews influenced by earlier ASIO conduct
Held: robust nature of questioning and considerable prompting in ASIO interview adversely affected likelihood of truth under s.85 – influenced AFP interviews also
Held: interviews excluded under s.138 – improper conduct – impropriety intentional and grave – conduct of accused of relatively minor criminality 

 

Sumpton

[2014] NSWSC 1432, Hamill J

Evidence Act 1995 (NSW) – s.84 – murder - admissions influenced by oppressive conduct - unlawful detention of accused – not taken before authorised officer "as soon as is reasonably practicable" - improper questioning in earlier interview - improper pressure to change version of events - failure to comply with LEPRA – did not obtain solicitor when requested - whether unlawful conduct relevant to "oppressive conduct" under s 84 - meaning of oppressive conduct.

 

Held: Evidence excluded pursuant to s 84. Evidence unlawfully and improperly obtained can (and should) also be considered in determining whether the cumulative impact of those matters constitutes oppressive conduct for the purpose of s 84: at [119]

"[135] In summary, and without repeating the matters that I have set out above, I am drawn to that conclusion based on the following matters:

The accused was unlawfully detained for a period of many hours.

The accused was not informed that arrangements were being made to take him before a Court or that there was a delay in doing so. He was simply left in his cell for some hours after he was charged. Even though he may have known (because he had been arrested before) that he would be taken to court, I accept his evidence that all he knew was that this would happen "eventually" or "sooner or later".

The accused was in police custody for a total period (lawful and unlawful) of around 23 hours before he was taken before a magistrate and around 20 hours before his confession.

Aspects of the questioning of the accused at the time of his arrest ('I want to know why you did it') and towards the end of the ERISP was unfair and improper in that it assumed his guilt and ridiculed and belittled his answers.

When he terminated the interview after a period of many hours, the detectives continued to question him for a short period and put to him that he was doing so because he was guilty of murder.

The implicit suggestion that his termination of the interview was capable of giving rise to an inference that he was guilty was never withdrawn.

He was denied access to a lawyer after asking for one.

While the custody records show that he was observed to be "sleeping" at various times between 4:42am and 8:14am and again between 10:12am and 12:17am, I accept his evidence that he would not "have had that much sleep. I know I'd lay under the blanket for hours, awake." (T 238). I also accept his evidence that his sleep patterns had been disturbed over the preceding days.

He was approached in the cell by the same detectives about whom he had complained to the custody manager (Sgt Williams) at the conclusion of the ERISP in circumstances where the new custody manager (Sgt Ruehe) played no role.

He was told that the offence with which he was charged "effectively carried life", that his account didn't add up and that the detectives were giving him an "opportunity" to talk before he was taken to Coffs Harbour. Thereafter, he was told that he could "ring [the detectives] from gaol".

He was approached to provide further information after he had clearly, and repeatedly, indicated that he sought to exercise his right to silence after more than 2,000 question in the ERISP.

He was subject to psychological and emotional pressure to change his version of events.

He was subject to questioning in a small confined space in circumstances where the designated custody manager was not involved in any meaningful way before, during or after the interview.

[136] For the evidence to be admissible I must be satisfied that the admission, and the making of the admission, were not influenced by the oppressive conduct that I find took place: see, for example, R v Ye Zhang (supra) at [39]-[44]. l am not so satisfied.

[137] The Crown has attempted to persuade me that the true cause of the confession was that the accused wanted to get the matter "off his chest" (see Q 90) and was demonstrating a true consciousness of guilt and willingness to take responsibility for his actions (Q 170). However, the Crown properly concedes the correctness of the approach of Simpson J in R v Ye Zhang at [44]:

"However, s 84 does not require the isolation of a single reason, or a single event or incident or instance of conduct provoking the confession; there may be a number of factors working together that, combined, cause the admission to be made. If oppressive conduct on the part of the police is one of those factors (or more accurately, if the Crown has failed to negative such conduct as one of those factors) then the evidence is inadmissible."

[138]  I adopt that reasoning although it may be more accurate to speak in terms of the oppressive conduct "influencing" - rather than provoking or causing -the confession.

[139]  In view of the history of the legislation, as examined by the Court of Appeal in Habib v Nationwide News at [196]-[207], it is not necessary, and may be contrary to the purpose of the provision, to speak in terms of voluntariness or in terms of whether the accused's will was overborne: see Habib v Nationwide News at [237].

[140] I am not satisfied, as a matter of fact, that the confession was not influenced by oppressive conduct which is to say conduct whereby the accused was subject to the exercise of police powers that was wrongful, burdensome, unjust and harsh.

[141] Having reached that conclusion, there is no discretion. The evidence must be excluded."

 


 

Section 85: Criminal Proceedings: reliability of admissions by defendants

Truong

(1996) 86 A Crim R 188; ACT SC (Miles CJ) 19.3.1996
Evidence Act 1995 (Cth) s.85 - armed robbery - admissions made to friend covertly taped - whether friend acting as agent of police.
Held: no ‘official questioning’ within s.85 - friend not in position to influence decision to prosecute - friend not acting as agent of police - evidence admissible and not excluded in discretion.

Fittler
NSWDC (Ducker DCJ) 19.4.1996
Evidence Act 1995 (NSW) s.85(2) - armed robbery - detention became illegal prior to admissions - first ERISP contained no admissions - spoke to de facto and then made admission prior to and during second ERISP.
Held: admission made in response to police threat that de facto would be charged and child placed into welfare - must look at the actual admissions themselves when considering if adversely affected - in this case admission appeared true so section would not apply - evidence excluded on other grounds

Oosterhoff
NSWSC (Ireland J) 21.5.1996
Evidence Act 1995 (NSW) s.85 - murder - ERISP interviews and statements made while police investigating possibility of witness protection and indemnity - application to exclude under s.90.
Held: repealed s.410 Crimes Act 1900 (NSW) of little relevance to s.85 - admissions made in circumstances not likely to adversely affect their truth - interview and statements admissible - no unfairness discretion applied under s.90.

Stevens
NSWDC (Sides DCJ) 19.9.1996
Evidence Act 1995 (NSW) s.85 - embezzlement - admissions made during interview with employer, partner, accountant and solicitor prior to matter being reported to police - husband of appellant present only for second interview
Held: admission covered by s.85(1)(b) - made as a result of act of employer who had power to influence decision to prosecute - appellant agreed to participate in interview when invited to assist with investigations - admissions in first interview made in circumstances that cast doubt on reliability - no one present on behalf of appellant, taped without permission and no copy of tape given to appellant, conducted in atmosphere of compulsion and threat - probability that appellant made admission in order to avoid being implicated in larger fraud - admissions rejected - admissions from second interview also rejected - husband of appellant present at request of employer - promise made that if money repaid police would not be called.

GA
NSW CCA 17.7.1997
Evidence Act 1995 (NSW) s.85 - sexual offences - in interview with police appellant admitted sexual relationship with complainant over several years - whether appellant’s impaired memory made admission unreliable
Held: admissions correctly admitted

Rooke
NSW CCA 2.9.1997
Evidence Act 1995 (NSW) s.85 - receiving motor vehicle - police found registration and compliance plates in garage - verbal admission at house and written record of interview made at police station - appellant claimed unlawfully detained, did not make admissions, signed ROI because of violence and threats from police and no satisfactory explanation for why police did not use ERISP.
Held: despite unlawful detention evidence admissible - (see s.138) - “circumstances in which admission made” are circumstances surrounding making of admission - do not include circumstances surrounding offence - fact that police used word processor instead of video to record interview, at a time when no requirement to use video, does not affect reliability per say.

Donnelly
(1997) 96 A Crim R 432; NSWSC (Hidden J) 19.9.1997
Evidence Act 1995 (NSW) s.85 - murder - accused spent several days with deceased after killing her then attempted suicide - attended hospital and requested cousin to attend - cousin a police officer - spontaneous admission of guilt - cautioned then provided more detail - underwent surgery - brother in law made attempt on accused’s life - discharged from hospital early - interviewed at police station by ERISP - depressed, suicidal, in pain, under the influence of medication
Held: “official questioning” - initial conversation with cousin not official questioning - cousin attended as family member - thought accused wished to talk about suicide attempt - admission made spontaneously - once caution given questioning became official - considered relationship between s.85(2) and s.189(3) - when considering reliability of confession under s.85 can consider terms of confession as part of relevant circumstances - in this case answers were lucid and responsive - no evidence of pressure - admissible

Braun
NSWSC (Hidden J) 24.10.1997
Evidence Act 1995 (NSW) s.85 - murder of brother by arson - equivocal admission to witness at fire - further admission to GP, staff at psychiatric hospitals and in ERISP - psychiatric history including attention seeking behaviour such as suicide attempts and false story telling
Held: evidence of all admissions excluded

Clarke
(1997) 97 A Crim R 414; NSW CCA 31.10.1997
Evidence Act 1995 (NSW) s.85 - AR - acquitted of use weapon to resist arrest - indicated to police did not want to talk about robbery - answered questions directed to second charge although not cautioned in relation to that charged - argued unfair to admit admission once person has purported to exercise right to silence
Held: (dismissing appeal) - declined to follow South Australian practice that police cannot continue questioning once accused has refused to answer and asked for a solicitor - protection offered by ss.85, 90 and 138 sufficient.

Mankotia
NSWSC (Sperling J) 30.7.1998
Evidence Act 1995 (NSW) s.85 - murder of girlfriend - accused at restaurant and asked for police to be called - made spontaneous admission - not asked to adopt or refute admission in later ROI
Held: not unfair to admit admission - definition of ‘official questioning” pursuant to s.85 same as under s.424A Crimes Act.

Horton
NSW CCA 2.11.1998
Evidence Act 1995 (NSW) s.85.
Held: Evidence Act provides meaning for “admission” under s.424A Crimes Act - includes ‘any form of representation, whether by conduct or by oral or written statement, so long as it is adverse to the (maker’s) interest in the outcome of the proceedings’ - includes both exculpatory and inculpatory statements.

Esposito
(1998) 45 NSWLR 442 reversing NSWSC (Hulme J) 22.8.1997
Evidence Act 1995 (NSW) s.85 - murder - ROI Accused denied being at Kings Cross at the time of the murder - on face of it statements were exculpatory, but evidence suggested lies
Held: followed Horton - admissions include inculpatory statements - s.85 considerations apply where Crown relies upon a statement which it says is false and gives rise to implied admission of guilt - where evidence raises issue as to whether truth or untruth of statement might have been adversely affected Crown must establish on balance of probabilities, that it was not likely to have been adversely affected.
Ahmadi
NSW CCA [161] 23.6.1999
Evidence Act 1995 ss.85(2) & 90 - supply heroin - limited involvement in offence - accused with limited intellectual capacity, limited English and little education - admissions made prior to ERISP adopted in ERISP - whether admissions should have been excluded - claimed threatened by police.
Held: no basis for excluding ERISP - contained all admissions made in initial interview so no miscarriage of justice in admitting those admissions.
Held: (per Adams J) comments as to police propriety where initial conversations are not recorded - importance of establishing accused understands caution.

Moffatt
NSW CCA 23.5.2000; (2000) 112 A Crim R 201
Evidence Act 1995 - s 85 - murder - whether admissions made unreliable and unfair due to intoxication of appellant at time of killing and later when making admissions.
Held: followed Esposito - once question of reliability of admissions legitimately raised Crown must establish on balance of probability that circumstances unlikely to have affected reliability of admissions - Judge not to consider whether admissions made or truthful - no error in judge’s finding that intoxication did not effect admission.

Ye Zhang
NSWSC [1099] Simpson J 1.12.2000
Evidence Act 1995 - s 85 - murder - admissions made during interview with police for purpose of assessing suitability of accused for witness protection program - where police offered protection in context of either co-operate or be charged with murder - police threatened physical violence - accused told he would receive reduced sentence for co-operation - told would receive no further opportunity to co-operate once police left room.
Held: evidence of admissions not excluded under s.85 - circumstances did not affect reliability - s.85 directed to circumstances in which admission made and does not consider truth or falsity of content of admission unless question of truth raised by accused. [see s.189(3)]

TJF
(2001) 120 A Crim R 209; NSW CCA [127] 12.4.2001
Evidence Act 1995 (NSW) s.85 - sexual offences - evidence of confession made to complainants’ father over telephone.
Held: s.85 does not apply - although evidence of alleged admission may have been a factor in deciding whether to proceed with charges father not a person capable of influencing decision under s.85(1)(b).

Munce
NSWSC [1072] (McClellan J) 14.11.2001
Evidence Act 1995 (NSW) s.85 & 90 - murder - killing of seaman on boat in 1971 - accused made admissions to police in ERISP - long term alcohol dependency and mental condition raises doubt about accuracy of accused’s account - Crown evidence relies solely upon admissions
Held: Evidence admitted - applied Rooke - nothing about circumstances of interview that would impact on truth of admissions - although admissions have low probative value their acceptance is a matter for the jury - no relevant prejudice or capacity to mislead or confuse

Quach
(2002) 137 A Crim R 345; NSW CCA [519] 20.12.2002
Evidence Act 1995 (NSW) ss85, 90 - drug supply - improperly obtained admissions - discretion to admit ERISP - where answers obtained after accused claimed right to silence - where caution not given until part way through interview - whether cause to believe truth of answers adversely affected
Held: TJ adverted to ss 85, 90 and 138 of Act - open to TJ to reach conclusions he did: R v Plevac (1995) 84 A Crim R 570 and R v Clarke (1997) A Crim R 41 applied.

Ray
(2003) 57 NSWLR 616; NSW CCA [227] 20.8.2003
Evidence Act 1995 (NSW) s.85 - manslaughter - unlawful act - injection of morphine - judge's comments in relation to the truthfulness of answers largely unfavourable to defence case - comments invited consideration of appellant's responses as lies
Held: adage "in vino veritas" is of dubious validity particularly as a general proposition, a matter reflected by circumstances that intoxication commonly needs to be taken into account, pursuant to s 85 when considering whether evidence of an admission, made in the course of official questioning, in circumstances affecting its reliability should be excluded – appeal allowed, new trial ordered.

Bartle & Ors
NSW CCA [329] 3.12.2003
Evidence Act 1995 (NSW) ss85, 90 - drug importation - unlawfully obtained admissions – extension of investigation period not properly obtained - discretion to admit ERISP – whether TJ failed to have regard to evidence of A’s tiredness and to whether police made inducement cooperation with police would be taken into account by sentencing court
Held: reliability of admissions not adversely affected pursuant to s85 - no inducement by police - TJ correct in holding ERISP unlawfully obtained and did not err in admitting evidence.
 
Jung
[2006] NSWSC 661, Hall J, 29.6.2006
Evidence Act 1995 (NSW) ss85, 90 – murder – accused unable to speak English – ERISP given through interpreter
Held: evidence admitted
 
Ul-Haque
NSWSC [1251], Adams J, 5.11.2007
Evidence Act 1995 (NSW) – ss.84, 85, 138 – terrorism offences – 21y male confronted by ASIO agents in car park of train station – taken to park for questioning – made to believe he was under compulsion to co-operate and answer questions – implicit threats – mode of questioning intimidating – not advised of rights – taken to family home where search being undertaken under warrant – interviewed in bedroom – not advised of rights – not allowed to communicate with brother – prompted answers – implicit threats – ‘gross breach of powers given to officers under search warrant’ – officers committed offences of false imprisonment and kidnapping – AFP officer present during interview
Subsequently sent to AFP for interview – inadequate caution given in view of oppressive conduct of, and implicit threats made by, ASIO officers – video tape suggested accused cowed – accused believed AFP working with ASIO – at end of interview advised AFP did not think accused had done anything wrong and was being treated as a witness – at second AFP interview required to provide more detail – between second and third interview had informal discussion with AFP officers urging better co-operation
Held: evidence of AFP interviews excluded – conduct of ASIO officers oppressive under s.84 – conduct continued during AFP interviews – presence of AFP officer at earlier interview with ASIO suggested link – message throughout all interviews was co-operate or else – interviews influenced by earlier ASIO conduct
Held: robust nature of questioning and considerable prompting in ASIO interview adversely affected likelihood of truth under s.85 – influenced AFP interviews also
Held: interviews excluded under s.138 – improper conduct – impropriety intentional and grave – conduct of accused of relatively minor criminality
 
Doklu
[2013] NSWCCA 283
Evidence Act 1995 (NSW) ss 85 – attempted murder - appellant stabbed by wife – when asked by police ‘What happened here?’ made admission that he had wanted to give her poison – whether admissions unreliable due to physical condition of accused
Held: appeal dismissed – evidence of ambulance officer indicated accused conscious and coherent – answered simple question
 
Sulaeman
[2013] NSWCCA 283
Evidence Act 1995 (NSW) ss 85, 90 139– people smuggling – Indonesian found captaining boatload of people off Christmas Island – interviewed by naval officer using translation cards – cards included caution – naval officer gave evidence appellant understood questions and gave responsive answers
Held: appeal dismissed – rejected argument that admissions inadmissible because of lack of interpreter, characteristics of accused, manner of questioning and unresponsive questions – no error in findings of fact
 

 

Simmons & Moore (No 3)

[2015] NSWCCA 189 (Hamill J)

Evidence Act 1995 (NSW) ss 85, 90 – murder – (1) Admissions made while A in psychiatric hospital recovering from acute psychosis – whether Witness B "elicited" admissions using listening device as agent of police – A had not previously been interviewed or advised of right to silence – (2). Admissions induced by offer that conversation is "off the record"– whether reliability adversely affected.

Held:  (1) Psychiatric hospital conversations excluded / inadmissible under s 90: A was an involuntary patient at psychiatric hospital in recovery from severe psychotic illness; Witness B said A was "not himself" ; "different mentally" ; No enquiry made by police as to A's mental health; Witness B engaged as 'agent' of police persistently sought to elicit admissions from A in face of denials,  conversation was functional equivalent of an interrogation; A not advised of right to silence and not previously approached by police for purpose of conducting recorded interview or obtaining statement.

(2) "Off the record" conversation excluded under s 85(2): A induced by statement the conversation was "off the record" and his belief meant it could not be used against him or disclosed. A under considerable pressure to say something (by family members) and with inducement and pressure of murder, I am not satisfied the circumstances were such that it is "unlikely that the truth of the admission was adversely affected." s 85 is in mandatory terms.

 

Chabarji and Others

[2016] NSWSC 1862 (Rothman J)

Evidence Act 1995 (NSW) s 85– murder – admissibility of recorded conversation – alleged impropriety in obtaining recording in circumstances where it is alleged one participant was agent of Police and no warning given – submission that accused was under influence of self-induced drugs - conversation which, at least in part, is said by Crown not to be true.

Held: Conversation admitted (except in certain respects under s 138).  Preliminary issue is whether reliability of the admission may have been impaired by the way it was obtained (ALRC Report referred to). At [5]-[6]:

.           Test is the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. Not whether what was said or done is likely to be rendered unreliable but whether it is unlikely that it is unreliable and that test casts a heavier onus in terms of admitting the material.

.           That which is examined are the circumstances, not content, of the admission. That admission or other statements turn out to be untrue does not mean the circumstances in which it was given is otherwise than one which makes it unlikely that the truth of the admission is adversely affected: R v McGovern (1991) 92 Cr App R 228; R v Blackburn [2005] 2 Cr App R 30.

   
   

Section 86: Exclusion of records of oral questioning

Schiavini

(1999) 108 A Crim R 161; NSW CCA [165] 1.7.1999
Evidence Act 1995 (NSW) s.86 - armed robbery - admission made in interview with police recorded and signed in notebook - refused ERISP - much later agreed to ERISP for related offence - not questioned about earlier admissions.
Held: s 86 cannot make admissible evidence inadmissible under s 424A Crimes Act.


   

Section 87: Admissions made with authority

Macraild

NSW CCA 18.12.1997
Evidence Act 1995 (NSW) s.87(1)(c) - supply cannabis - undercover police officer had several conversations with co-offenders arranging supply of cannabis - later executed search warrant on farm where appellant found with cannabis - crown led evidence of conversation between co-offenders and police against appellant.
Held: conversations admissible in furtherance of common purpose as evidence of agreement for sale - s.87 reproduces common law co-conspirators rule.

Brownlee
NSW CCA 8.3.1999; (1999) 105 A Crim R 214
Evidence Act 1995 (NSW) s.87 - financial offences - Crown permitted to tender evidence of conversation between Crown witness and third person in absence of appellant - third person made statement inculpating appellant - third person did not give evidence - suggestion that s.87 be determined on two levels (1) whether there is a common purpose determined in favour of admission if reasonably open to judge to so find and (2) whether statement made in furtherance of common purpose determined on balance of probabilities.
Held: section makes no such distinction - statement inadmissible - did not satisfy common purpose requirements

Watt
NSW CCA [37] 22.3.2000
Evidence Act 1995 (NSW) s.87(1)(c) drug offences - evidence of conversation between agent of accused and undercover police officer identifying involvement of accused in offences
Held: evidence admissible - affirmed Macraild - evidence admissible provided there is reasonable evidence of preconcert and statement was made in furtherance of alleged common purpose.

Trevenna
NSWSC [1276] Buddin J 18.9.2002
Evidence Act 1995 (NSW) s.87 - murder – at committal offender’s legal representative spoke to magistrate and Crown solicitor – offered to plead guilty to manslaughter – Crown seeking to tender evidence of conversation as admission by accused
Held: evidence not admissible – not prepared to accept privilege lost in circumstances – not confident counsel communicated instructions (often use hypothetical scenarios when discussing plea bargains) – not clear on paucity of information what was being admitted – “admission” did not provide direct support of Crown case – Court should be very hesitant to find accused changed instructions

Phung Ngo
(2003) 57 NSWLR 55; NSW CCA [82] 3.4.2003
Evidence Act 1995 (NSW) s 87(1) – murder – political assassination of John Newman MP
Held: Appeal dismissed - evidence admissible - N's assertion to Ngoc was admissible because it was reasonably open to find that the circumstances in which the statement had been made satisfied the requirements of s 87(1)(b) or (c)
 
Landini v NSW
[2007] NSWSC 259, Hall J 22.3.2007
Evidence Act 1995 (NSW) s 87(1)(c) – application to admit evidence from police officer as to statement made by second police officer allegedly representing something said by third police officer – plaintiff seeking to argue that evidence shows second and third officers involved in attempt to fabricate evidence against plaintiff – whether evidence admissible as representation made in furtherance of common purpose
Held: Application refused – consideration of principles for admission of evidence under s.87 – membership of group insufficient to establish common purpose – finding of common purpose must be made on balance of probabilities – representation must usually be more than narrative – statement here not an instruction, direction or arrangement – cannot conclude statement such as to further common purpose – no evidence to establish common purpose between second and third police officers
 
Choi
[2007] NSW CCA 150, 1.6.2007
Evidence Act 1995 (NSW) s 87(1) – importation of commercial quantity of ecstasy – involved in arranging importation of goods – controlled delivery after police discovered drugs – claimed he believed smuggled goods were diamonds – subsequently told goods were drugs and asked to produce paperwork as drugs were missing – admissibility of telephone transcripts of conversation conducted in absence of appellant during attempt to locate and explain missing drugs
Held: Appeal dismissed - evidence admissible – at time of telephone conservations common purpose existed to discover reason for and location of missing drugs
 
Jones (No.8)
[2007] NSWSC 1159, Buddin J, 8.6.2007
Evidence Act 1995 (NSW) s.87(1)(c) - murder – fight between two families in caravan park – after argument accused telephoned father who travelled immediately to caravan park – admissibility of telephone conversations between brother of accused and third person arranging to assist in fight – brother not apprehended
Held: conversations excluded – not satisfied common purpose to attack victims existed at time of making of conversations – common purpose possibly emerged later in time prior to attack.
 
May (No.2)
[2008] NSWSC 595, Rothman J, 13.5.2008
Evidence Act 1995 (NSW) s 87(1)(c) – murder(?) – Crown witness gave evidence of conversation over drug dealing – referred to ‘another guy’ – Crown sought to establish identity of other guy in cross-examination
Held: leave to re-examine refused – requirement to first establish by independent evidence existence of common purpose and fact that conversation made in furtherance of common purpose not yet satisfied
Held: no requirement that common purpose must be that of offence charged provided relevant – in this case common purpose related to drug dealing not murder but relevant to establishing motive of alleged offence – considered Watt

   
   

 

Section 88: Proof of Admissions

Hall

NSWSC [827] (Greg James J) 17.9.2001
Evidence Act 1995 (NSW) s.88 - murder - Crown seeking to admit lawfully recorded tapes - tapes difficult to understand.
Held: s.88 deals with both identity of maker of admissions and whether statements amount to admissions - “be reasonably open” means judge uses own senses when assessing evidence, and does not base decision on some conjecture as to how others might perceive evidence
 
Lodhi
[2006] NSWSC 648, Whealy J (2006) 163 A Crim R 526
Evidence Act 1995 (NSW) s.88 – terrorism offences – Crown relied upon link between accused and known terrorist B – claimed accused visited B at his residence – evidence from persons present at residence as to statement made by male visiting B – whether statement admissible as admission made by accused – insufficient evidence apart from statement establishing male was accused
Held: representation itself cannot be relied upon to establish person making representation was accused
 
Olivieri; Norman
NSWSC [882] (Hidden J) 4.9.2006
Evidence Act 1995 (NSW) s.88 - murder – police published photo of accused, modified to appear computer generated, falsely claiming photo of gunman described by witness – authorized controlled operation – admissibility of telephone intercepts of reaction of accused to photo
Held: evidence admitted – followed Hall – section extends to question of whether representation capable of constituting an admission – despite some ambiguity open to jury to conclude accused made admissions

 

Section 89: Evidence of silence

Matthews
NSW CCA 28.5.1996
Evidence Act 1995 (NSW) s.89 - trial judge declined to direct jury on s.89 without giving reasons - jury made aware of s.89 in counsel’s address.
Held: s.89 declares right of silence in terms not materially different from common law - says nothing as to any obligation resting upon a trial judge to direct jury, but need to do so, as established at common law, remains - conviction quashed.

Lyberopoulos
NSW CCA [280] 24.7.2002
Evidence Act 1995 (NSW) s.89, 90 – statements made by appellant at scene as to knowledge of drug - error in admitting statements into evidence - statements not relevant - should have been made subject of direction that no adverse inference could be drawn - error in treating statements as admissions in summing up
Held: admissions technically inadmissible under s 108 but no objection made at trial - no error in admitting evidence of admissions in light of failure to object - no substantial miscarriage of justice – appeal dismissed

Coe
NSW CCA [385] 25.9.2002
Evidence Act 1995 (NSW) s.89 – robbery with violence – fact that witness resiled from previous positive identification of appellant as offender meant evidence of identification had considerable probative value – alibi evidence – appellant cross-examined about failure to inform police of alibi at arrest – discussion of warnings under ss.116 and 165.
Held: right to silence under s.89 compared with Petty v The Queen (1991) 173 CLR 95 but held that unnecessary to determine precise extent of application of s 89 as it would have taken matter no further than common law in this case.
 
Jones
NSW CCA [443] 16.12.2005
Evidence Act 1995 (NSW) s.89 – assault – wife of accused gave evidence in trial supporting his version of events – cross-examined as to refusal to give statement to police – Crown permitted to submit adverse inference should be drawn from silence of witness – whether breach of s.89
Held: s.89 applied to circumstances of case – although silence used to attack credit of witness, evidence of witness supportive of accused and therefore jury invited to drawn inference adverse to party to proceedings
 
RELC
NSW CCA [383] 29.11.2006
Evidence Act 1995 (NSW) s.89 – sexual assault on child – sexual assault allegedly observed by appellant’s daughter – daughter provided some corroboration to complainant in interviews with police – daughter changed story and denied any assault at trial – mother questioned as to why she did not advise police daughter had changed evidence – whether breach of s.89
Held: s.89 confined to circumstances of official questioning – opportunity for mother to advise police as to change in story outside official questioning – s.89 did not apply – referred to Jones
 
Sanchez
NSW CCA [171] 2.2.2009
Evidence Act 1995 (NSW) s.89 – drug importation - Distinction between right of silence at common law and under s 89 – whether trial judge’s direction infringed right of silence - trial judge directing jury they could draw an adverse inference from Appellant’s failure to raise a defence during his questioning by Customs and Police.
Held: As interview never got to the stage of any question actually being “put or made”, or any representation being “put or made” s 89 did not operate. This would have been contravention of common law but s 89 is narrower than common law.
 
Ross
[2012] NSW CCA 207
Evidence Act 1995 (NSW) s.89 – sexual offences – in record of interview with police accused responded many time with ‘no comment’ – ROI admitted at trial.
Held: in this case no miscarriage of justice in view of the fact that defence counsel made use of the interview and clear instructions from judge – pre-Evidence Act cases such as Reeves and Plevac which allow admission of record of interview to demonstrate fairness of police may need to be reviewed in light of s.89 – s.89 provisions should not be relegated to irrelevance

 

 
   

Section 90: Discretion to exclude admissions

Fittler
NSWDC (Ducker DCJ) 19.4.1996

Evidence Act 1995 (NSW) s.90 - armed robbery - detention became illegal prior to admissions - first ERISP contained no admissions - spoke to de facto and then made admissions prior to and during second ERISP - Judge accepted that admission made in response to police threat that de facto would be charged and child placed into welfare
Held: breach so serious evidence would be excluded under s.90 - (already excluded under s.138)

Oosterhoff
NSWSC (Ireland J) 21.5.1996
Evidence Act 1995 (NSW) s.90 - murder - ERISP interviews and statements made while police investigating possibility of witness protection and indemnity - application to exclude under s.90.
Held: repealed s.410 Crimes Act 1900 (NSW) of little relevance to s.85 - admissions made in circumstances not likely to adversely affect their truth - interview and statements admissible - no unfairness discretion applied under s.90.

Fernando
NSWSC (Abadee J) 12.5.1997
Evidence Act 1995 (NSW) s.90 - defendants sought exclusion of alleged confessions and admissions made to police - no real dispute in terms of admissions to police - caution given - both adopted notebook entries without compulsion - volunteered to assist further without improper pressure or compulsion.
Held: no unfairness in admitting evidence.

Donnelly
(1997) 96 A Crim R 432; NSWSC (Hidden J) 19.9.1997
Evidence Act 1995 (NSW) s.90 - murder - accused spent several days with deceased after killing her then attempted suicide - attended hospital and requested cousin to attend - cousin a police officer - spontaneous admission of guilt - cautioned then provided more detail - underwent surgery - brother in law made attempt on life - discharged from hospital early - interviewed at police station by ERISP - depressed, suicidal, in pain, under the influence of medication
Held s.90 a statutory expression of the common law - not unfair in the circumstances

Braun
NSWSC (Hidden J) 24.10.1997
Evidence Act 1995 (NSW) s.90 - murder of brother by arson - admissions to GP, staff at psychiatric hospitals and in ERISP - psychiatric history including attention seeking behaviour such as suicide attempts and false story telling
Held: discretion to be exercised similar to Lee (1950) 82 CLR 133 - where accused mentally ill consider Parker (1989) 19 NSWLR 177 at 183 - admissions unreliable.

Clarke
(1997) 97 A Crim R 414; NSW CCA 31.10.1997
Evidence Act 1995 (NSW) s.90 - AR - acquitted of use weapon to resist arrest - indicated to police did not want to talk about robbery - answered questions directed to second charge although not cautioned in relation to that charged - argued unfair to admit admission once person has purported to exercise right to silence
Held: s.90 - evidence will not be excluded on that basis only - issue of fact whether questions become intimidating and unfair - in this case appellant willing to answer questions - not unfair to admit evidence.

Nabalarua
NSW CCA 19.12.1997
Evidence Act 1995 (NSW) s.90 - assisting escape of co-offender while on police escort to court - admission in signed notebook and in ERISP - arrest illegal - arrested for sole purpose of questioning.
Held: burden of proving it would be unfair to admit evidence lies with accused - although arrest illegal caution was given, questions were proper and the police notes were adopted - not unfair to admit admissions - appeal allowed because judge failed to consider discretion to exclude evidence improperly and unlawfully obtained under s.138.

Richards
NSW CCA 3.4.1998
Evidence Act 1995 (NSW) s.90 - supply drugs and possess pistol - during search on street asked police “can we talk?” - in interview room refused interview and made comments about being set up - later offered assistance - at request was granted interview with senior police officer making admissions of drug dealing and offering assistance - denied all conversations at trial - claimed statements prejudicial because suggested involved with criminal element and more involved with drug dealing than charges suggested
Held: admissions to senior police officer correctly admitted - made after accused requested to see police officer and caution given - s.90 considerations do not apply where accused denies conversation took place.

Mankotia
NSWSC (Sperling J) 30.7.1998
Evidence Act 1995 (NSW) s.90 - murder of girlfriend - accused at restaurant and asked for police to be called - made spontaneous admission - not asked to adopt or refute admission in later ROI
Held: in circumstances not unfair to admit admission - failure to ask accused to confirm or refute admission in ROI did not render admission of evidence unfair - s.424A Crimes Act did not apply because spontaneous admission not official questioning.

Duff
NSW CCA 17.9.1998
Evidence Act 1995 (NSW) s.90 - supply drugs - told police money found in car was takings from hotel - later denied knowledge of money and statement - if true statement was advantageous to A - if false it was contrary to his interests.
Held: statement amounted to an admission under the Evidence Act.

Horton
NSW CCA 2.11.1998
Evidence Act 1995 (NSW) s.90 - issue was whether the meaning of ‘admission’ under s.424A Crimes Act was the same as under Evidence Act.
Held: Evidence Act provides meaning for admission under s.424A - includes ‘any form of representation, whether by conduct or by oral or written statement, so long as it is adverse to (maker’s) interest in outcome of proceedings’ - includes both exculpatory and inculpatory statements.

The Queen v Swaffield; Pavic v the Queen
(1998) 72 ALJR 339; (1998) 192 CLR 159
Queensland case - admission of evidence of admissions covertly taped by undercover police officer and informant - discussion regarding the various discretions at common law, referring to Evidence Act - discussion of definition of ‘unfairness’.

Suckling
NSW CCA [36] 12.3.1999
Evidence Act 1995 - s.90 - murder - admissions made to prison informer covertly taped.
Held: conduct not unlawful or improper.

Ahmadi
NSW CCA [161] 23.6.1999
Evidence Act 1995 s.90 - supply heroin - limited involvement in offence - accused with limited intellectual capacity, limited English and little education - admissions made prior to ERISP adopted in ERISP - whether admissions should have been excluded - claimed threatened by police.
Held: no basis for excluding ERISP - contained all admissions made in initial interview so no miscarriage of justice in admitting those admissions.
Held: (per Adams J) comments as to police propriety where initial conversations are not recorded - importance of establishing accused understands caution.
LMW
NSWSC (Studdert J) [1128] 23.11.1999
Evidence Act 1995 s.90 – manslaughter - 10y and immature accused - spontaneous admission to police at house before police suspected he had committed offence - no further caution given to accused at house - caution given at police station before further admissions - accused did not appreciate he was talking to police.
Held: spontaneous admission made at house admitted - further admissions made at house excluded because no caution given - admissions made at station excluded because caution did not make clear to accused what he said could be used in court.

Helmhout
(2000) 112 A Crim R 10; NSWSC [208] Bell J 22.3.2000
Evidence Act 1995 s.90 - murder - made admissions in police record of interview - arrested 8.45am - drinking heavily night before - record of interview shows affected to some degree by alcohol and drugs - judge satisfied accused aware he had been arrested and was being interviewed in relation to murder charge - record of interview suggests accused able to understand questioning and recall information.
Held: allowing evidence - not unfair under s.90 to admit evidence of record of interview - not unfair just because intoxication loosens tongue - combination of failure to call Aboriginal Legal Service as required under cl 28 Crime (Detention After Arrest) Regulations 1995 and intoxication did not result in unfairness.

Walker
NSW CCA [130] 23.3.2000
Evidence Act 1995 - s 90 - murder - admissions made to prison informer - prisoner approached police - no attempt made by prisoner to trap appellant with questions - police officer believed could not tape conversation by use of covert listening device - prisoner to receive assistance in own sentencing matter.
Held: no error in Judge‘s conclusion - not unfair to admit evidence under s.90 and no element of impropriety under s.138 - in any event desirability of admitting evidence outweighs undesirability of excluding evidence.

Moffatt [No.2]
NSWSC (Kirby J) [226] 18.3.1999 (upheld NSW CCA 23.5.2000; (2000) 112 A Crim R 201)
Evidence Act 1995 - s 90 - murder - whether admissions made unreliable and unfair due to intoxication of appellant at time of killing and later when making admissions.
Held: admissible - higher tolerance to alcohol because of long history of alcoholism - answers to ERISP appear consistent and lucid - corroborated in many aspects.

Phung & Huynh
NSWSC [115] Wood CJ at CL 26.2.2001
Evidence Act 1995 - s.90 - murder and AR - 17y accused - two ROI - various breaches - delay in contacting support person - absence of support person during forensic tests - no opportunity for accused to make representation as to detention warrant - selection of support person by police without ascertaining wishes of accused - relative immaturity and inexperience of support person - no legal practitioner contacted - failure to allow accused to talk privately to support person - failure to properly explain role to support person - accused showing signs of fatigue and drug withdrawal - limited opportunity for accused to sleep - second interview conducted after accused already in custody - police selected unknown Salvation Army Officer as support person - no evidence accused properly advised as to rights - no opportunity to talk to support person - no effort to contact solicitor.
Held: breaches not deliberate, behaviour not oppressive and no reasons to suppose truth of what accused said was adversely affected - “sufficient circumstances involving non compliance with the statutory regime so as to give rise to the serious concern as to whether the accused, a 17 year old boy with a somewhat disturbed background, had been sufficiently advised as to his rights and as to whether those rights were adequately protected to require exclusion under s.90 and s.138”.

Holt
NSWSC [232] (Sully J) 30.3.2001
Evidence Act 1995 - s 90 - murder - homeless man accused of bashing another homeless man to death with iron bar - conversation of accused with police prior to and at time of arrest - accused not under arrest so Part 10A did not apply.
Held: evidence of conversation prior to arrest admissible - no unfairness to accused - behaviour of accused odd but no indication he did not understand questions or that memory so poor that anything he said was inherently unreliable - police officer arresting accused had portable tape recorder and asked questions prior to arrest - no unfairness.

Munce
NSWSC [1072] (McClellan J) 14.11.2001
Evidence Act 1995 (NSW) s.85 & 90 - murder - killing of seaman on boat in 1971 - accused made admissions to police in ERISP - long term alcohol dependency and mental condition raises doubt about accuracy of accused’s account - Crown evidence relies solely upon admissions
Held: evidence admitted - applied Rooke - nothing about circumstances of interview that would impact on truth of admissions - although admissions have low probative value their acceptance is a matter for the jury - no relevant prejudice or capacity to mislead or confuse

Lamb & Thurston
NSWSC [357] (Dunford J) 24.4.2002
Evidence Act 1995 (NSW) 90 - murder - breach of Part 10A - not given a copy of the Caution and Summary document and not requested to sign - failed to properly assist in relation to support person - offender could not read - no evidence he wanted support person
Held: evidence admissible - not unfair to admit ROI - breaches not intentional or deliberate - offender willingly answered questions - been questioned by police before

Lyberopoulos
NSW CCA [280] 24.7.2002
Evidence Act 1995 (NSW) s.90 – statements made by appellant at scene as to knowledge of drug - error in admitting statements into evidence - statements not relevant - should have been made subject of direction that no adverse inference could be drawn - error in treating statements as admissions in summing up
Held: admissions technically inadmissible under s 108 but no objection made at trial - no error in admitting evidence of admissions in light of failure to object - no substantial miscarriage of justice – appeal dismissed

Cohen
NSW CCA [339] 12.9.2002
Evidence Act 1995 (NSW) s.90 - money seized from home of accused was relevant as it constituted circumstantial evidence - identification evidence - "resemblance evidence" was admissible as forming part of circumstantial case
Held: no error in failure to provide direction as to appellant's statement of intended flight - no error in failure to direct that suspicion of guilt was insufficient

Quach
(2002) 137 A Crim R 345; NSW CCA [519] 20.12.2002
Evidence Act 1995 (NSW) s.90 - improperly obtained admissions - answers obtained after accused claimed right to silence - caution given part way through interview
Held: truth of answers not adversely affected by interview - discretion to admit ERISP did not miscarry – appeal dismissed

Robinson
NSW CCA [188] 18.8.2003
Evidence Act 1995 (NSW) 90 - murder of fellow prisoner – evidence admitted of spontaneous admission made to police prosecutor while walking to court house – admission written down but not recorded in notebook or shown to accused for adoption – not heard by anyone else in party
Held: appeal allowed – unfair to admit evidence

Bartle & Ors
NSW CCA [329] 3.12.2003
Evidence Act 1995 (NSW) s.90 - drug importation - unlawfully obtained admissions – extension of investigation period not properly obtained - discretion to admit ERISP – whether TJ failed to have regard to evidence of A’s tiredness and to whether police made inducement that cooperation with police would be taken into account by sentencing court
Held: TJ properly found A had acted deliberately and no inducement by police – no error in holding ERISP unlawfully obtained – no error in admitting evidence.

Walsh
NSWSC [1115] (Howie J) 3.12.2003
Evidence Act 1995 (NSW) s.90 – murder - admissibility of unrecorded admissions made at police station - initially arrested but released after declining to answer questions on advice of solicitor - rearrested and advised solicitor on holidays for 4 weeks – during conversation accused indicated desire to speak off the record – attempted to speak hypothetically
Held: at [17] – “(I)t was not unfair to admit the evidence as there was nothing done by the police officer at the outset of the conversation to lead the accused into believing that what he said would not be recorded by the police or used against him. The accused believed that what he said at the time could not be utilised by the police because it would be a “verbal”, but the police did nothing to induce that belief in him. However, I formed the view that, at the point in the conversation where the passage quoted above finishes, the balance of the conversation should be rejected. The Detective, by agreeing to speak hypothetically, had impliedly suggested that what was said thereafter was on an informal basis and was not to be taken or used as an admission by the accused. In those circumstances to admit what followed in the conversation after that would be unfair to the accused.”

Sophear Em
NSW CCA [374] 12.12.2003
Evidence Act 1995 (NSW) s.90 – murder – s.5F appeal by Crown against decision of trial judge to exclude evidence of admissions made to police – respondent indicated he did not wish to have any conversation with police recorded or written down – police took R to local park for chat – covertly wearing listening devices – police admitted they believed R would not talk if knew conversation was being recorded and would not talk at police station – partial caution given – did not warn R anything he said could be used against him – kept asking questions although R indicated he did not wish to talk about murder – whether TJ erred in excluding evidence
Held: appeal allowed – Judge took into account irrelevant considerations when considering s.90 – probative and prejudicial nature of admissions and seriousness of offence irrelevant – question of unfairness only - no problem with police covertly recording conversations where R refusing to have interview recorded – difference between conduct aimed at inducing suspect to believe conversation not recorded and inducing suspect to believe conversation will not be used in evidence – conduct in first instance does not necessarily enliven direction to exclude under s.90
“Section 90 in effect confers on the trial judge a discretion to reject evidence of admissions where to admit them would result in an unfair trial for the accused. It is unfairness arising from the use of the admissions by the prosecution that is central to the discretion under the section and not whether the police unfairly treated the accused. The purpose of the discretion is the protection of the rights and privileges of the accused. It is concerned with the right of an accused to a fair trial and includes a consideration of whether any forensic advantage has been obtained unfairly by the Crown from the way the accused was treated; Swaffield at [78]. There may be an overlap between issues of voluntariness, reliability, fairness to the accused and the public policy discretion; ibid at [74].” [104]

Nelson
NSW CCA [231] 9.7.2004
Evidence Act 1995 (NSW) s.90 – dangerous driving causing death and GBH – highway patrol officer spoke to appellant at hospital to obtain details of persons involved in accident – appellant made comment suggesting she was in control of car at time of accident – contradicted appellant’s subsequent claim that passenger grabbed wheel - appellant intoxicated and in shock at time of making remark – no caution given - remark unrecorded and not put to appellant in subsequent interview
Held: dismissing appeal – no error in admission of evidence – no unfairness in actions of police officer who was not part of investigative team – comment unresponsive - jury could take into account matters affecting reliability of remark when making assessment of evidence

Bullock
[2005] NSWSC 825, Buddin J, 19.8.2005
Evidence Act 1995 (NSW) s.90 – murder – spontaneous admission to police at scene of offence – conversation with police at scene recorded only in notebook – subsequently adopted in video-taped ROI – appellant injured and intoxicated at time of conversation
Held: allowing evidence – followed test in EM – neither injuries to complainant nor intoxicated affected reliability of admissions
 
G
NSW CCA [291] 25.8.2005
Evidence Act 1995 (NSW) – s.90 sexual offences – search warrant executed at home of 17y suspect – police indicated would like to talk to suspect – caution given in presence of older brother – some time later suspect posed for photograph to be used for identification outside house
Held: posing for photograph did not constitute admission – s.90 did not apply
 
RG
NSWSC [15] (Buddin J) 30.1.2006
Evidence Act 1995 (NSW) s.90 - woman charged with drowning of 7m daughter – found naked at scene of offence – told police “I’m Jesus, I’ve done some bad things, I’m a bad mother, I’ve drowned my baby” – serious issue as to accused’s mental state – whether statement does not constitute admission because of ambiguity
Held: statement admitted – argument that admission must be unambiguous too strong a test for admissibility – mental illness relevant to assessment of value of admission but does not necessarily make it inadmissible – review of related authorities
 
Jung
[2006] NSWSC 661, Hall J, 29.6.2006
Evidence Act 1995 (NSW) ss85, 90 – murder – accused unable to speak English – ERIPS given through interpreter
Held: evidence admitted
 
Olivieri; Norman
NSWSC [882] (Hidden J) 4.9.2006
Evidence Act 1995 (NSW) s.90/ s.138 - murder – police published photo of accused, modified to appear computer generated, falsely claiming photo of gunman described by witness – authorized controlled operation – admissibility of telephone intercepts of reaction of accused to photo
Held: evidence admitted – even if evidence tainted by impropriety not so great as to outweigh probative value – not unfair to accused
 
Em
NSW CCA [336] 3.11.2006
Evidence Act 1995 (NSW) s.90 – murder – 2 home invasions - conviction appeal – see Em [2003] NSW CCA 336 (above) - accused indicated he did not wish to have any conversation with police recorded or written down – went with police to local park for chat – covert listening devices worn – police admitted they believed E would not talk if aware conversation being recorded – partial caution given - whether TJ erred in admitting evidence
Held: appeal dismissed – decision under s90 a discretionary decision – questions of unfairness based on erroneous belief of accused that evidence cannot be used against him must take into account whether belief engendered by police and if so whether this was intentional – difference between confirming erroneous belief as to evidence and failing to correct erroneous belief – in this case police only failed to correct belief – not responsible for erroneous belief – covert recording not necessarily unfair just because covert or because accused would not have spoken if aware of recording – in circumstances of case no unfairness or unreliability
 
Frangulis
NSW CCA [363] 24.11.2006
Evidence Act 1995 (NSW) s.90 – s5F – Crown appeal against rejection of evidence – accused charged with arson offence – owner of shop destroyed by fire – interview with insurance investigator – not cautioned or advised accused considered a suspect – also not advised investigator conducting inquiries for police – advised by legal counsel of contractual obligation to answer questions – TJ found combination of factors caused unfairness
Held: appeal allowed – improper / unfair conduct on behalf of questioner relevant to, but not determinative of, question – central question is whether use of evidence unfair – TJ failed to apply this test
 
Higgins
NSW CCA [56] 9.3.2007
Evidence Act 1995 (NSW) – s90 – fraud – manager of bank banked $78,303 cheque from elderly client – interviewed by bank investigators – advised things said may be used in “the bank’s deliberation” – whether inadequate caution – whether misleading – whether oppressive or unfair to admit evidence of interview
Held: no error – adopted interview when subsequently interviewed by police
 
Almirol [No.1]
[2007] NSWSC 290, Kirby J, 21.2.2007
Evidence Act 1995 (NSW) – s90 / 138 – murder – accused allegedly involved in killing of male in house where accused living as guest – accused fled to Philippines - admissibility of recorded telephone conversation between female owner of house and accused – warrant obtained under Telephone (Interception) Act 1979 – Crown witness conducting conversation on behalf of police to clarify earlier admissions made by accused to witness - whether improperly obtained – whether improper use of Crown witness to avoid issuing caution - whether admission of evidence would be unfair
Held: evidence admitted – no error in police officer stating he had reasonable grounds for suspecting accused likely to use telephone service based on fact that Crown witness would ring accused using that phone – issue of warrant not vitiated by failure of police officer to advise arrest warrant had been issued for accused – no improper conduct in recording conversation where arrest warrant already issued – no improper conduct where seeking corroborating evidence of earlier admissions – followed reasoning of James J in dismissing application to exclude evidence at earlier trial – applied Swaffield – found Crown witness agent of state – conversation constituted interrogation – witness made misrepresentations to accused as to purpose of telephone call – no basis for finding unfairness – no refusal by accused to make police statement – accused had left Australia depriving police of opportunity to interrogate – accused already made admissions to Crown witness – no impact on reliability of admissions – Crown witness did not speak from prepared script – half truths part of conversations of this type – any prejudice could be dealt with by editing or directions – no unfairness arising from fact that accused was more than a suspect – no special relationship between accused and Crown witness causing will of accused to be overborne
 
Jones [No.2]
[2007] NSWSC 770, Buddin J, 30.3.2007
Evidence Act 1995 (NSW) s 90, 137 138 – murder – two families involved in fight in caravan park – issue of self defence and provocation – police organised for wife of accused to talk to accused over telephone – admissibility of conversations – application to exclude based on following factors:
· Wife lied to terminate conversation
· Wife deliberately picked fight with accused to make him angry
· Form of questioning would not be permitted if conducted by police officer
· Wife determined to obtain incriminating evidence
· Contrary to public policy
· Conversation not subsequently adopted by accused
Held: evidence allowed – no unfairness in permitting evidence taking into account following matters:
· Accused had not yet spoken to police and therefore had not refused to speak to them
· Accused had left jurisdiction voluntarily and whereabouts was unknown
· No suggestion conversation involuntary
· Wife exercised degree of autonomy in questioning
· Accused willingly spoke to police upon arrest
· Freedom of accused not impugned by behaviour of wife
· Rules about questioning applicable to police do not apply in same way to civilian
· Conversation contained admissions consistent with plea to manslaughter
· Conversation no different to other versions of evidence given by accused
 
Pavitt
[2007] NSW CCA 88, 2.4.2007
Evidence Act 1995 (NSW) – s90 – sexual assault – offender sexually assaulted male school friend of younger sister twenty years ago – complainant agreed to have telephone conversation with appellant taped by police – police officer made notes as to appropriate questions – legally recorded conversation under warrant – police in no position to arrest appellant at time of recording – appellant not spoken to by police or offered interview – whether evidence of tape recording should have been admitted
Held: appeal dismissed – authorities considered and principles extracted:
(a) The underlying consideration in the admissibility of covertly recorded conversations is to look at the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned
(b) If that freedom is impugned, the court has a discretion to reject the evidence, the exercise of which will turn on all the circumstances which may point to unfairness to the accused if the confession is admitted
(c) Even if there is no unfairness the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards
(d) The question whether the conversation was recorded in circumstances such that it might be characterised as either unfair and/or improper include whether the accused had previously indicated that he/she refused to speak to the police;
(e) The right to silence will only be infringed where it was the informer who caused the accused to make the statement, and where the informer was acting as an agent of the state at the time the accused made the statement. Accordingly, two distinct inquiries are required:

(i)as a threshold question, was the evidence obtained by an agent of the state? (ii)was the evidence elicited?
(f) A person is a state agent if the exchange between the accused and the informer would not have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents
(g) Absent eliciting behaviour on the part of the police, there is no violation of the accused’s right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police
(h) Admissions will have been elicited if the relevant parts of the conversation were the functional equivalent of an interrogation and if the state agent exploited any special characteristics of the relationship to extract the statement; evidence of the instructions given to the state agent for the conduct of the conversation may also be important
(i) The fact that the conversation was covertly recorded is not, of itself, unfair or improper, at least where the recording was lawful

MIH
[2007] NSW CCA 199, 5.7.2007Evidence Act 1995 (NSW) – s90 – manslaughter of infant son – statements made to medical personnel indicating accused fed son at 6.00 am – adverse to interests of accused – whether admission unfair – statements made when accused under stress - watching attempts being made to resuscitate young son – wife in mental hospital
Held: appeal dismissed – no error in admitting evidence

EM
[2007] HCA 46, 4.10.2007
Evidence Act 1995 (NSW) – s90 – murder - appellant convicted of murder and associated offences committed during two home invasions - admitted to second home invasion and pleaded guilty to related offences - denied involvement in fatal home invasion - cautioned and questioned at police station – refused to have anything recorded and refused to have refusal recorded – refused to make any comment about fatal home invasion – made no challenge to subsequent written record of conversation – released - at later date taken by police to park - police wearing covert listening device under listening device warrant – cautioned only that he did not have to say anything – not advised conversation would be recorded and could be used against him – repeatedly assured there was no trickery – made some admissions to fatal home invasion - part of conversation excluded after police implied if accused spoke to police he would not be arrested and anything he said would not be used against him - Trial judge found appellant believed unrecorded conversation could not be used as evidence and he would not have said anything if he knew conversation recorded – also found police knew this - at trial appellant argued he made admissions to protect friends
Issues: Whether evidence of admission should have been excluded under s.90 unfairness provisions – whether police unfairly used mistaken belief of accused that unrecorded conversation not admissible - whether jury should have been warned as to potential unreliability of admissions
Held: appeal dismissed
Gleeson CJ and Heydon J
Application of s.90 unfairness provisions very fact specific – one aspect may include appellant’s mistaken belief
[56] The language in s 90 is so general that it would not be possible in any particular case to mark out the full extent of its meaning. Whether or not the appellant was correct to submit that the primary focus of s 90 was on incorrect assumptions made by accused persons, there is no doubt that it is one focus of s 90, and it is one which is relevant to the way in which counsel submitted the appellant's incorrect assumption should be viewed. In any particular case, the application of s 90 is likely to be highly fact-specific. Certainly it is on the facts of this particular case that the result must turn.
At [62] rejected argument that appellant pressured to speak – factual finding that “questioning was not hostile, overbearing, unduly persistent, confusing or too leading” correct.
Onus is on accused to prove unfairness [63]
At [65] rejected argument that police “police reinforced or contributed to the continuation of the appellant's mistaken assumption that what he said could not be used against him.” No evidence appellant continued to consider assume (no evidence given on voir dire).
Secret recording alone does not establish unfair conduct
[67] The appellant accepted that the mere fact that a conversation was being secretly recorded was not sufficient to make it "unfair" to the defendant to admit the recording into evidence. Yet decisions to record conversations with a particular accused person secretly are made because no recording would be possible if that accused person knew of the recording. Thus secret recordings often could not be made without some kind of trickery - a positive representation or conduct suggesting, and leading to the false assumption, that there was no recording being made, a deliberate failure to correct that false assumption, or conduct confirming that false assumption.
Rejected argument that this case different because appellant not only believed conversation not being recorded, but no evidence could be given of conversation.
[71] One difficulty with the submission is that it attributes improbably subtle reasoning to the appellant, which cannot be inferred from the circumstances and which is unsupported by testimony from the appellant. But the most fundamental difficulty with the submission is that the appellant's belief that evidence of the conversation could not be given was integrally connected with his belief that the conversation was not being recorded. That is because, as counsel for the appellant said: "[T]he appellant incorrectly assumed that the conversation was not being electronically recorded and, as a result, incorrectly assumed that anything he said could not be used in evidence." (emphasis added) To conclude that while it is not unfair to use an admission which its maker did not believe was being recorded, it is unfair to use an admission which its maker did not believe could be used, when the reason for the second false assumption is the existence of the first, is illogical.
Reliability of evidence may be factor affecting unfairness – no evidence here that admissions unreliable
[73] It is supported by common law authority [36]. Indeed in Swaffield [37] Toohey, Gaudron and Gummow JJ said: "Unreliability is an important aspect of the unfairness discretion but it is not exclusive." Here the evidence was completely reliable in that there is no doubt about what the appellant said: the recording device worked efficiently. The appellant advanced only one reason why what he said was unreliable, and it was a contention put forward in the appellant's evidence at the trial. The contention was that the appellant falsely told the detectives of his involvement with the crimes in order to protect his friends. This does not reveal error in James J's decision to admit the evidence for two reasons. The first is that since the appellant did not give evidence on the voir dire, the contention was not before James J at the moment when the evidence was admitted. The second is that while ultimately the acceptability of the appellant's contention was for the jury, it lacked plausibility to a very significant degree. Not only is it the case, as James J found without any present challenge by the appellant, that the circumstances were such as to make it unlikely that the truth of the admissions was adversely affected, but even if the appellant's contention had been advanced in evidence on the voir dire, it could not have caused James J to regard the reliability of what the appellant said as suspect. It is highly implausible that anyone fearing prosecution for murder would admit to the murder in order to protect unnamed friends
[36] Lee [1950] HCA 25; (1950) 82 CLR 133 at 153 per Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ; Swaffield [1998] HCA 1; (1998) 192 CLR 159 at 189 [54], 195 [71], 196 [74], 197 [77]-[78] per Toohey, Gaudron and Gummow JJ.
[37] [1998] HCA 1; (1998) 192 CLR 159 at 197 [78].
Decision of trial judge and CCA did not rest on any finding that actions of detectives were deliberate. [74]
Recording of admissions in park alone does not make then unfair
[75] The mere fact that the recording of the conversations was made in a park and not a police station cannot make it unfair to admit it into evidence. Section 281 of the Criminal Procedure Act requires confessions to be recorded; it does not require them to be recorded in a particular place, and many admissible confessions are made in places other than police stations. No provision in the Evidence Act or in any other statute requires them to be recorded in a particular place. Nor does the Police Commissioner's Code.
No error in taking advantage of ignorance or stupidity of accused
[77] Counsel for the appellant submitted that it was unfair to permit the reception of evidence obtained from the appellant where the appellant was operating under a disability - a significant mistake of which the detectives were aware. The difficulty is that every day police officers take advantage of the ignorance or stupidity of persons whom they eventually prosecute, and a mistake of the kind the appellant was operating under was simply a species of ignorance or stupidity.
Rejected argument that freedom to speak impugned
[78] When all the circumstances analysed above are considered, it is impossible to conclude that that freedom was impugned. The appellant knew he was speaking to police officers. He knew they were investigating two home invasions, one involving a murder. He knew, having been cautioned several times on 22 February and 24 April 2002, that he was not obliged to speak to the police officers. He spoke to those officers knowingly and willingly. He gave a version of events. In his evidence before the jury he claimed that he planned to give that version - according to him, a non-incriminating mixture of denials, admissions, lies, evasions, jokes and questions. Apart from the admissions he made, that account of the version of events lacked credibility, but he certainly wanted his version of events to be accepted by the detectives. He had an awareness of his rights and a capacity to act on them. While s 281 compelled the detectives to record what was said if they wanted to tender it, the appellant possessed no right not to be recorded once the listening device warrants had been obtained from O'Keefe J. The appellant was free to leave. The questioning was not overbearing. As counsel for the appellant conceded, neither legislation nor the Police Commissioner's Code created any obligation on the detectives to caution him. The appellant did not know the conversation was being recorded, but he accepted that that did not make it unfair to receive the evidence. The appellant did not contend that he spoke because of any threat of violence, or any illegality, or any impropriety. He did not contend that the circumstances were likely to affect the truth of the admissions. He thought that the conversation could not be used against him in criminal proceedings, but that cannot of itself make it unfair for the conversation to be received in evidence. The detectives kept secret from him the fact that the conversation was being recorded, and hence his freedom to speak was affected in the sense that a factor that was important to him was kept secret from him. But that is true of virtually all cases of lawfully authorised secret surveillance. Virtually all persons who are the subject of that type of surveillance have been deprived of the opportunity to make an informed choice about whether or not to exercise their right of silence. It is difficult to see the practical difference, for this appellant, between speaking where his freedom of choice to speak was impaired by ignorance about the fact that what he said was being recorded, and speaking where his freedom of choice to speak was impaired by ignorance about the fact that what he said could be used against him. He did not speak on 24 April 2002 until it was made clear that what he said would not be used against him since it was not being recorded; his decision to speak on 15 May 2002 where he thought what was being said was not being recorded was governed by a mental state in which the supposed lack of recording was inextricably linked with the supposed incapacity to use the material.
Directions adequate in circumstances of case – particularly where no request made at trial for further directions, and explanation of accused for making of admissions not credible
Gummow and Hayne JJ
Focus of s.90 is unfairness at trial not fairness of the means by which the admissions were elicited.
[107] As pointed out at the commencement of these reasons, the central issue is whether the evidence of admissions should not have been admitted because, having regard to the circumstances in which they were made, it would be unfair to the defendant to use the evidence. That question requires consideration of whether there was identified some aspect of the circumstances in which the admissions were made that revealed why the use of the evidence, at the trial of the person who made the admissions, "would be unfair". That is, the focus of s 90 falls upon the fairness of using the evidence at trial, not directly upon characterising the circumstances in which the admissions were made, including the means by which the admissions were elicited, as "fair" or "unfair".
Section 90 is safety net provision that only applies when all other relevant sections have been considered.
[109] When it is "unfair" to use evidence of an out-of-court admission at the trial of an accused person cannot be described exhaustively. "Unfairness", whether for the purposes of the common law discretion or for the purposes of s 90, may arise in different ways. But many cases in which the use of evidence of an out-of-court admission would be judged, in the exercise of the common law discretion, to be unfair to an accused are dealt with expressly by particular provisions of the Act other than s 90. Thus although the discretion given by s 90 is generally similar to the common law discretion considered in Lee, it is a discretion that will fall to be considered only after applying the other, more specific, provisions of the Act referred to at the start of these reasons. The questions with which those other sections deal (most notably questions of the reliability of what was said to police or other persons in authority, and what consequences follow from illegal or improper conduct by investigating authorities) are not to be dealt with under s 90. The consequence is that the discretion given by s 90 will be engaged only as a final or "safety net" provision
Reliability of admission largely irrelevant because considered under s.85 (although may be relevant where admission made in circumstances not covered by s.85)
[112] As noted earlier, s 90 of the Act expressly directs attention only to the fairness of using the evidence at the trial of the accused. Section 85 deals with evidence of an admission made by a defendant in the course of official questioning, and provides that the evidence is not admissible unless the circumstances in which the admission was made "were such as to make it unlikely that the truth of the admission was adversely affected". It follows that consideration of the reliability of what was said in a statement made to police can have no part to play in the operation of s 90. (By contrast, questions of reliability may well have a role to play in the application of s 90 if the statement was not made in the course of official questioning or "as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued" - s 85(1)(b). But that is not this case.)
Rejected argument that unfair to admit evidence because of improper police conduct – matter to be dealt with under s.138
[121] It also follows from the conclusions just expressed about the operation of s 138 that to begin examination of the operation of s 90 from a premise which attaches determinative significance to the fact that the appellant had the mistaken belief (caused or contributed to by the police) that what he said was not being recorded and would not be admissible in evidence would be erroneous. It would be erroneous because that would not take the operation of provisions like ss 85 and 138 into account. The relevant questions presented by the Act (in particular, by ss 85 and 138) are about the reliability of the admissions made to police, and the lawfulness and propriety of the methods used to obtain the admissions. Showing that the person making the admission acted under some misapprehension is not to the point.
[122] It is a truism that an Act must be read as a whole. When the Act that now is under consideration is read in that way, it is evident that the discretion given by s 90 is not to be understood as unaffected by the more particular provisions of the Act. Yet that, in essence, is what the appellant sought to argue.
Kirby J (in dissent)
Definition of ‘unfair’ wide and depends upon factual circumstances
[177] Unfairness, for the purposes of s 90, cannot be defined comprehensively or precisely. A general law on evidence (such as the Act) must cover the admission (or rejection) of evidence adduced in a vast range of predictable and unpredictable circumstances. Moreover, what is "unfair" will vary over time in response to changing community attitudes and perceptions. The language of s 90 of the Act expresses the concept of unfairness "in the widest possible form" (Swaffield (1998) 192 CLR 159 at 193 [67].)
[178] This fact, and the fact that the power afforded under s 90 is to be exercised at the moment that evidence is tendered for admission before a court, indicates that the judgment must be made on a case-by-case basis, normally on the run. The section envisages individual decision-making by reference to all relevant facts, not a priori rules of universal application. What would be "unfair" in one set of circumstances might not be so if just a few of the integers were changed.
Not a discretion to exclude or admit evidence
[181] Once a court, in circumstances to which s 90 applies, concludes that it "would be unfair to [the] defendant to use the evidence", the section does not provide the court with an uncontrolled option to allow the evidence or to reject it or limit its use. If relevant unfairness to a defendant in the use of the evidence is demonstrated, the only discretion provided to the court is to refuse to admit the evidence of an admission at all or to refuse to admit the evidence to prove a particular fact.
Accepted mere fact that conversation covertly recorded not sufficient to constitute unfairness
[202] I am prepared to concede that the mere fact that a conversation with a suspect is secretly recorded does not alone make later use of any admissions contained in the recording "unfair" to the suspect. I also accept that the existence of warrants under the Listening Devices Act militates in favour of a secret recording of a private conversation comprising admissible evidence. However, such a warrant does not absolve a court of the obligation to decide, in accordance with s 90, whether particular evidence adduced in criminal proceedings should be excluded as unfair to a defendant. In granting such a warrant, a judge has no means of anticipating later unfairness to a defendant arising out of attempted use of the recorded evidence and the way the questioning proceeds.
Accepted reliability may be relevant to question of unfairness
[205] I agree that such unfairness could arise because the circumstances in which an admission was made render it unreliable. However, as noted above, it was recognised in Lee, and confirmed in other cases down to Swaffield, that reliability is "not ... the sole touchstone" of unfairness.
Question is not motives of police but effect of police conduct
[206] It remains for the court to evaluate the proposed "use [of] the evidence" in the context of "criminal proceedings". The answer is not supplied by a judgment as to the motives of the detectives in adopting the course of conduct that they did. It may be accepted (as all the judges below agreed) that Detectives Abdy and McLean were frustrated, and anxious to secure evidence to solve a most serious crime. However, the governing consideration is not whether the detectives deliberately intended to deprive the appellant of his right to a fair trial. It is whether their conduct had that effect in the proceedings in which the contested evidence was admitted.
Found circumstances unfair:
Deliberate decision of police not to give second part of caution
Conduct of police designed to make accused believe conversation off the record
Choice of park reinforced idea of off record conversation
Cannot accept it is OK to abuse ignorance or stupidity of person being questioned

Gilham
[2008] NSWSC 88, Hidden J, 18.2.2008
Evidence Act 1995 (NSW) s.90, 138 – murder – accused found outside house in which brother and parents lay dead – agreed to record of interview – admitted killing brother after brother had killed parents – detention for interview illegal – police officer should have taken accused to magistrate for bail application – accused subsequently agreed to walk through at scene of offence – walk through held later in day when magistrate no longer available – family friend who attended police station advise accused did not need a solicitor
Held: application to exclude evidence of interview and walk through refused – no basis for finding failure to take accused to magistrate caused unfairness to accused at trial

DPP v Majok
[2009] NSWSC 192, Rothman J 24.3.2009
Evidence Act 1995 (NSW) s.90 – traffic offence – respondent disclosed to police officer he was driver of car under s.173 Road Transport (General) Act – magistrate ruled admission not admissible under s.9
Held: followed DPP v Attallah [2001] NSWCA 171 – fact that an admission is made under s.173 cannot of itself be the criterion by which the discretion under s.90 is exercised

NAA
[2009] NSWSC [851] Howie J, 26.8.2009
Evidence Act 1995 (NSW) – s.90 – Stabbing murder of partner – stand off with police outside house for several hours while armed with knife – made several admissions both spontaneously and in response to questioning – no caution given – conversation recorded in notebook by one police officer and partially and poorly recorded by audio – during subsequent ERISP conversation not put to accused after he obtained legal advice and declined to discuss matter
Held: evidence admissible – no question admissions were voluntary and reliable

Armstrong
[2010] NSWSC 801 Buddin J
Evidence Act 1995 (NSW) s.90, 137 - murder – telephone conversation with father from gaol recorded – discussion as to DNA evidence:
Accused According to my lawyer the only thing they have is the DNA so my lawyer is going to check out what type it is, the validity of it how it was stored for the last 17 to 18 years.
Father Oh right, yeah they might had nothing on you then mater.
Accused Yeah they probably want to strike up a bargain, like drop it from Murder down to Manslaughter.
Father You are not having that are you.
Accused Well we have not plead anything yet, because we do not know the strength of the DNA
Father You wont plead guilty to nothing at the moment
Accused No
Held: comments to father that accused had not yet decided what plea to enter not easily reconcilable with innocence – constitutes admission – once establish conversation an admission cannot give rise to risk of unfair prejudice – also warning signs at gaol indicting telephone conversations may be monitored

Riley
[2011] NSW CCA [238]
Evidence Act 1995 (NSW) – s.90 – manslaughter – admissibility of letter written by accused several years after death – clearly written by someone with mental issues
Held: at [146]-[164] – although reliability of letter a factor affecting fairness (Em (2007) 232 CLR 67 at [72]) no unfairness where prejudice caused by unreliability of letter readily apparent to jury and covered by directions - Nelson [2004] NSWCCA 231
 
JB
[2012] NSW CCA [12]
Evidence Act 1995 (NSW) – s.90 – murder – admission made by 15y Sudanese refugee to support person at police station
Held: no error in admitting evidence of admission – question “what happened?” neutral and did not require making of admission – no pressure or unfairness in circumstances of case
 
Jarrett
[2012] NSW CCA 81
Evidence Act 1995 (NSW) – s.90 – s 5F Crown Appeal against rejection of evidence substantially weakening prosecution – child sexual assault – A made admissions to 4 health professionals – Trial judge rejected evidence on basis it would be unfair under s90 as A had been diagnosed as “mentally disordered” and that admission of the evidence would prolong the trial.
Held: Crown appeal allowed. Order rejecting evidence set aside. No evidence of A’s mental state at time of admissions. A bare assertion that A was mentally disordered was not sufficient to conclude it would be unfair to admit the evidence. Admissions were spontaneous and the consideration that their admission might prolong a trial because of arguments about reliability was an irrelevant consideration.
 
Leung
[2012] NSWSC [1451]
Evidence Act 1995 (NSW) – s.90, 126A – Crown application to adduce evidence of conversation between A and nurse at police station – A charged manslaughter – hysterical and very upset – nurse from Mental Health crisis team called in to assess risk of self-harm and mental health – A told nurse he had been “arguing a lot” with V – Crown case circumstantial, one of the circumstances being that A and V had been arguing – whether conversation an “admission” within s 90 – unfairness – reliability – whether relationship between A and nurse was a ‘protected confidence’ under s 126A
Held: Application dismissed. Conversation inadmissible – unfair to use evidence. Conversation within s 90 given the disclosures made by A to the nurse are previous representations that are plainly adverse to A’s interest in the outcome of the trial. They bolster the Crown's circumstantial case and are admissions. The relationship between a clinical nurse specialist who is called to a police station to make a mental health assessment and an accused person is a protected relationship under s 126A Evidence Act
 
Pitts (No 1)
[2012] NSWSC 1652, Adamson J
Evidence Act 1995 (NSW) ss. 90, 138, 139 - A indicated that he did not want to answer questions - persistent questioning by police - A made admissions - whether to exclude evidence of admissions.
Held: ERISP inadmissible. A declined to answer questions but was encouraged to give mobile phone number, having been told he would be asked one question. On several occasions A declined to answer questions, said he did not want to answer questions, but the police persisted. Expression of sympathy was offered as a way of encouraging A to answer further questions. Interview took place on the same day as the incident, in the course of which the A’s head and hand had been injured. These injuries were obvious to police. A’s capacity to withstand the various techniques adopted by police to get him to answer questions was diminished. A’s answers were not given voluntarily and questioning was not fair.
R v Plevac (1995) 85 A Crim R 570, at 579-581, outlined the principles that apply when questioning a suspect. The first question is whether the suspect is willing to answer questions. If so, the questioning must be fair and must not amount to undue insistence or pressure.
 
XY
[2013] NSWCCA 121
Evidence Act 1995 (NSW) ss. 90, 137 – s.5F Crown appeal against exclusion of evidence of telephone conversation between complainant and accused in child sexual assault offences - Trial judge not satisfied accused ‘fully aware’ of identity of caller - not clear from the transcript the accused knew who he was talking to (had last spoken to the complainant 9 years earlier when she was 8 years old) - accused appeared distracted during conversation by background noise - allegations about sexual activity put by complainant vague - accused denied any sexual activity with complainant when she was 8 years (as alleged) but seemed to accept ‘some’ sexual activity with ‘someone’ of high school age
Held: appeal dismissed (by majority on basis probative value under s.137 outweighed by unfair prejudice) – in relation to question of admissibility under s.90 only three judges considered the point:
Basten JA (dissenting on appeal) - Suggestion that evidence should be excluded under s.90 because unfairly required accused to give evidence rejected: [74-77]
Hoeben CJ at CL (dismissing the appeal on separate point) - Agree with Basten JA and Simpson J – nothing unfair warranting exclusion under s.90:[85]
Simpson J (dissenting on appeal) - Applied EM – no unfairness under s.90: [151]-[156] - Fact that evidence such that it may put accused in position of needing to give evidence irrelevant to question of unfairness – distinguished Cook: [153-155]
 
Gallgher
[2013] NSWSC 1102, Bellew J
Evidence Act 1995 (NSW) ss. 90 - Murder - special hearing pursuant to the Mental Health (Forensic Provisions) Act 1990 - admissions - exclusion of admissions on the basis that they were improperly obtained or alternatively on the basis that to use them against the accused would be unfair - where A suffering from brain damage, epilepsy, alcohol dependence and resultant cognitive impairment - where A had been interviewed by the police on two occasions and had denied killing the deceased - where police subsequently implemented undercover operation - where police were aware during the course of the undercover operation that A undergoing treatment for psychological issues and alcohol dependence - where police continued with the undercover operation - where A initially repeatedly denied responsibility for the deceased's death to undercover operative - where A ultimately admitted at the conclusion of the undercover operation that she killed the deceased - whether the evidence of A’s admissions should be excluded as having been improperly obtained - whether evidence of A’s admissions should be excluded on the basis of unfairness.
Held: Evidence should be excluded pursuant to s. 90. (Verdict of acquittal entered; other grounds considered).
 
LDV (No.2)
[2013] NSWDC 215, Colefax SC DCJ
Evidence Act s 90, 135(a), 137 – sexual offences against 15y victim – surveillance device warrant obtained – three telephone conversations recorded between victim and accused and victim’s father and accused – accused unaware at the time of allegations – no admissions but responses could be evidence of consciousness of guilt – upon arrest accused exercised right to silence
Held: Evidence excluded – considered purpose of surveillance warrants for serious offence difficult to investigate – this offence not extraordinary - purpose of conversations was to deprive accused of right to silence – extinguished right without clear and proper basis – distinguished Pavitt (2007) 169 A Crim R 452 – prejudice outweighed probative value
 
FE
[2013] NSWSC 1692 Adamson J
Evidence Act 1995 (NSW) – s.90, 138, 139 – Stabbing murder of male in street confrontation – 15y female alleged to have pointed out victim to person who did stabbing – attended police station unexpectedly in response to news report – interviewed in presence of mother but no caution given – several days later arrested for affray and taken to police station – accused spoke to solicitor on phone and advised not to give interview – solicitor communicated refusal to give interview to Detective and faxed written instructions – communication with solicitor not passed on to interviewing police officers – accused taken to interview room and gave interview
Held: evidence of both interviews excluded – police had sufficient information at time accused first attended police station to treat her as a suspect under s.139(5)(a) – accused given reasonable grounds to believe she could not leave the station under s.139(5)(c) – no caution meant s.138 applied – improprieties very grave – vulnerable young girl deprived of right to silence – should also be excluded under s.90 – second interview also excluded under s.139 and 90 – police ignored right to silence
 
Sulaeman
[2013] NSWCCA 283
Evidence Act 1995 (NSW) ss 85, 90 139– people smuggling – Indonesian found captaining boatload of people off Christmas Island – interviewed by naval officer using translation cards – cards included caution – naval officer gave evidence appellant understood questions and gave responsive answers
Held: appeal dismissed – rejected argument that admissions inadmissible because of lack caution and lack of understanding of questions – no error in findings of fact
 
Burton
[2013] NSWCCA 335
Evidence Act 1995 (NSW) ss 90, 98, 137 – Crown appeal 5F(3A) Criminal Appeal Act regarding pre-trial evidentiary ruling - sexual assault - evidence of telephone conversation between A and complainant recorded pursuant to warrant - admissions - whether unfair to admit evidence - whether complainant acting as "agent of the State" - whether unfair derogation of A’s right to exercise free choice to speak or be silent - whether conversation "functional equivalent of an interrogation" - "eliciting behaviour" - whether admissions made voluntarily – whether error in excluding evidence.
Held: Crown appeal allowed. The circumstances of the conversation did not amount to an unfair derogation of A’s right to exercise a free choice to speak or to be silent, and the finding that it was was erroneous: at [128]. If A’s responses to the complainant are construed as admissions (as they are capable of being construed), they were not, within the meaning of s 90, made in circumstances that rendered it unfair to use them in evidence. The evidence ought not to have been excluded under s 90: at [132]. (see separate case summary under s 137).
 

 

Ryan 
[2013] NSWCCA 316 
Evidence Act 1995 (NSW) ss 90, 137– sexual offences against step-daughter – pre-text conversation in park – s.5F Crown appeal against exclusion of evidence

Held: allowed appeal – applied Em – unfairness at trial – will not overborne – freedom to remain silent not compromised – not an interrogation – no public policy

 

Cooney 
[2013] NSWCCA 312 
Evidence Act 1995 (NSW) s 90– robbery offences – accused placed in cell after arrest – made confessions to undercover police officers after offered barrister – police had failed to advise accused barrister arranged by brother had rung – trial judge found breach of s.127 LEPRA – excluded evidence

Held: Crown allowed appeal – applied Em – trial judge erred in excluding admissions under s.90 on basis of illegality – tests for s.90 and s.138 different – matter returned for reconsideration

 

DF 
[2014] NSWDC 149, Colefax SC DCJ 
Evidence Act 1995 (NSW) s 90– old child sexual offences – solicitor advise police accused would exercise right to silence – application made for surveillance warrant as deliberate strategy to obtain admissions – Crown accepted person using device was agent of state

Held: followed LDV – case even stronger for exclusion of evidence

 

Beckett 
[2014] NSWCCA 305 
Evidence Act 1995 s 90 – information obtained in compelled interview of A by investigators from the Office of State Revenue (OSR), pursuant to the Taxation Administration Act 1996, s 72 - During interview, A provided copies of two cheques on which the issue dates had been altered, and knowingly made a false statement to the investigators -  Whether the answers given by A in the compelled interview were admissible as admissions pursuant to s 90

Held: Appeal allowed. The false statements provided by the applicant were not "admissions" within the meaning of the Evidence Act, s 90. They were not "representations", but rather are the subject matter of the charges on the indictment.: R v Horton (1998) 45 NSWLR 426, 104 A Crim R 306 (distinguished); R v Esposito (1998) 45 NSWLR 442; 105 A Crim R 27 (distinguished).

 

Simmons & Moore (No 3) 
[2015] NSWCCA 189 (Hamill J) 
Evidence Act 1995 (NSW) ss 85, 90 – murder – (1) Admissions made while A in psychiatric hospital recovering from acute psychosis – whether Witness B "elicited" admissions using listening device as agent of police – A had not previously been interviewed or advised of right to silence – (2). Admissions induced by offer that conversation is "off the record"– whether reliability adversely affected

Held:  (1) Psychiatric hospital conversations excluded / inadmissible under s 90: A was an involuntary patient at psychiatric hospital in recovery from severe psychotic illness; Witness B said A was "not himself" ; "different mentally" ; No enquiry made by police as to A's mental health; Witness B engaged as 'agent' of police persistently sought to elicit admissions from A in face of denials,  conversation was functional equivalent of an interrogation; A not advised of right to silence and not previously approached by police for purpose of conducting recorded interview or obtaining statement.

(2) "Off the record" conversation excluded under s 85(2): A induced by statement the conversation was "off the record" and his belief meant it could not be used against him or disclosed. A under considerable pressure to say something (by family members) and with inducement and pressure of murder, I am not satisfied the circumstances were such that it is "unlikely that the truth of the admission was adversely affected." s 85 is in mandatory terms.

 

Simmons & Moore (No 2) 
[2015] NSWSC 143 Hamill J 
Evidence Act ss 90,137,138 – unsolved missing persons investigation – suspected cold case murder – covert investigation using "scenario technique" – A makes voluntary admissions – discretion to exclude admissions that are unfair – relevance of reliability of confessions – where parts of admission implausible and not supported by other evidence – whether police "elicited" admissions – whether accused spoke freely – where accused had not exercised his right to silence when approached by police – warrants authorising use of listening devices expired or invalid – evidence obtained unlawfully – officers sailing close to the wind –  discretion to admit evidence unlawfully or improperly obtained – highly prejudicial material – discretion to exclude.

Held: Relevant parts of conversation and admissions admissible.

(Tofilau v The Queen [2007] HCA 39; 231 CLR 396)

 

DRF (Restricted – Available on JIRS) 
[2015] NSWCCA 181  
Accused charged with sexual offences against stepson – accused exercised right to silence when contacted by police – police obtained warrant for listening device under Surveillance Devices Act s.17 – application for warrant revealed accused had declined police interview – complainant fitted with listening device and recorded conversation with accused – conversation contained admissions

Recording excluded by trial judge on basis power to grant warrant intended to be confined to 'serious criminal activity' such as murder, terrorism, drug manufacture / importation – exercised discretion under s.3(2)(a) SDA to exclude evidence

Held: Simpson JA, Leeming JA and Schmidt J agreeing

Legality of Warrant

TJ erred in exercising discretion to exclude evidence on basis that surveillance warrant should be confined to serious criminal activity – if correct this would have made issue of warrant illegal [69]-[70] - question whether sexual offences against children not serious criminal activity [68]- conclusion that warrants confined to serious criminal activity inconsistent with s.17 'relevant offence' which is defined in s.4 to mean any indictable offence [71]-[72] - Trial judge relied erroneously on extraneous material (report of a Joint Working Group of the Standing Committee of Attorneys-General and the Australasian Police Ministers' Council on National Investigative Powers on Cross Border Investigative Powers for Law Enforcement and Second Reading Speech) in reaching conclusion – erroneous because not used to confirm ordinary meaning, resolve ambiguity or obscurity or avoid result that was manifestly absurd or unreasonable as permitted under s.34 Interpretation Act [73]-[77]

s.90

(State conceded complaint was agent of state) – no element of coercion and high degree of reliability [89] - no unfairness even in light of refusal to talk to police (see Em) [92] - judge who issued warrant fully aware of circumstances including refusal [93]-[95] - if conversation not taped complainant could have given evidence of admissions [98]

Per Leeming JA (Simpson JA agreeing) may be circumstance where would be unfair to admit evidence – complainant may choose opportunity where accused under influence of alcohol / drugs and not apparent – may use words with special meaning or deliberate ambiguity – may use unrecorded facial expressions or gestures – need to take each case as it comes [2]-[5] - in this case no unfairness – accused clearly aware stepson was a complainant [6]

 

Czako 
[2015] NSWCCA 202  
Evidence Act ss 90 - Money laundering – A and coaccused spoke in Hungarian language in presence of police during search – Hungarian speaking police officer Sergeant K gave evidence/ translation of what A and coaccused had said in Hungarian – whether alleged unfairness that Sergeant K was deliberately placed in the role of an eavesdropper - whether use of the admissions was unfair to A because A was not given an opportunity to adopt (or contest) Sergeant K's notes of the remarks.

  Held: Trial judge's ruling upheld as correct. Once A started making incriminating remarks to coaccused in Hungarian language (contrary to police request that A speak in English), the requirements of fairness did not mandate A be interrupted and asked to adopt a note of what he had just said. The use of an unguarded incriminating remark heard by police is not inherently unfair: at [85]. Sergeant K was not in the role of an eavesdropper: at [82].