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Supreme Court 4 September 2006

R v Olivieri; R v Norman

[2006] NSWSC 882

Homicide
CRIMINAL LAW: MURDER TRIAL CONTROLLED OPERATION MISLEADING POLICE MEDIA RELEASE ADMISSIBILITY OF TELEPHONE INTERCEPTS WHETHER MEDIA RELEASE IMPROPER

Citation: R v Olivieri; R v Norman [2006] NSWSC 882
Court: Supreme Court of New South Wales, Common Law Division
Date: 4 September 2006
Judge(s): Hidden J

Background

Two accused stood trial for the murder of a solicitor shot at his Petersham office in April 2004. The first accused was alleged to have been the gunman; the second was charged as an accessory before the fact. Police had telephone intercepts in place on both accused before they executed a deliberate investigative subterfuge.

That subterfuge involved publishing a modified photograph of the first accused in the Sydney press, presented as a composite image compiled from witness observations. In fact, the image was a digitally altered photograph of the accused himself, and police knew the representation was false. The release was authorised under the Law Enforcement (Controlled Operations) Act 1997. Its purpose was to provoke incriminating telephone conversations.

Following publication, a series of intercepted mobile phone calls captured the first accused expressing significant concern about the article, stating he thought he was "gone," saying he would need to "go away for a while," and engaging in discussions with his co-accused about potential witnesses and his whereabouts at the time of the shooting. The Crown proposed to rely on these calls as evidence of consciousness of guilt.

  • Whether the intercepted conversations were capable of constituting admissions under the Evidence Act 1995, given that no explicit confession appeared in any call.
  • Whether the admission of the evidence would be unfair to the accused under s 90 of the Evidence Act, by analogy with police misrepresentation during interrogation.
  • Whether the evidence should be excluded on public policy grounds under s 138 of the Evidence Act, given the misleading nature of the media release.
  • Whether s 137 of the Evidence Act required exclusion on the basis that probative value was outweighed by the risk of unfair prejudice.
  • Whether the controlled operation authority under the Law Enforcement (Controlled Operations) Act 1997 validated the publication, and whether that question affected the admissibility analysis.

Decision

Relevance and capacity to constitute admissions. Hidden J accepted that the calls contained no explicit admission of involvement in the murder, and that some statements were on their face protestations of innocence. Nevertheless, his Honour concluded that the significance of the calls was a matter for the jury. The calls were fairly open to the Crown's interpretation as reflecting consciousness of guilt, and on that basis were capable of constituting admissions as representations adverse to the accused's interest in the proceeding. In any event, they formed part of the Crown's broader circumstantial case.

Unfairness under s 90. The court rejected the argument that admitting the evidence would be unfair within the meaning of s 90. Hidden J drew a distinction between the present situation and the paradigm case of police making a false representation to a suspect under interrogation. Subterfuge, he observed, is an accepted feature of police investigation into serious crime, inherent in every undercover operation, and its use to generate relevant and significant evidence was not unfair to the accused.

Public policy exclusion under s 138. Proceeding on the assumption, without deciding, that the publication was improper and not validated by the controlled operation authority, Hidden J nonetheless declined to exclude the evidence. He assessed the probative value of the calls as substantial and important. Critically, he found that any impropriety was neither deliberate nor reckless. The investigating officers and the authorising officer appeared to have regarded the press release as a legitimate and properly authorised investigative tool. The balancing exercise under s 138(1) therefore favoured admission.

Section 137. The court also rejected the s 137 argument. On the findings already made, the probative value of the evidence was not outweighed by the risk of unfair prejudice. The evidence was admitted.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A recorded conversation need not contain an explicit confession to be admissible as an admission. Where calls are fairly open to an interpretation adverse to the accused's interests, their ultimate significance is a question for the jury.
  • The court drew a clear distinction between police misrepresentation during interrogation and the deployment of a media subterfuge as a controlled investigative operation. The former raises stronger fairness concerns under s 90 of the Evidence Act; the latter does not necessarily do so.
  • Under the s 138 balancing exercise, evidence generated by a potentially improper police subterfuge may still be admitted where its probative value is substantial and any impropriety was neither deliberate nor reckless.
  • Hidden J expressly declined to resolve whether the controlled operation authority under the Law Enforcement (Controlled Operations) Act 1997 had the effect of validating the publication, treating that question as undeveloped in argument and leaving it open.
  • Subterfuge was characterised as an accepted feature of serious crime investigation, and its use in a properly authorised context did not, of itself, render admission of resulting evidence unfair.

Legislation and Cases Referenced

Legislation:
- Law Enforcement (Controlled Operations) Act 1997 (NSW), ss 8, 16
- Evidence Act 1995 (NSW), ss 88, 90, 137, 138
- Independent Commission Against Corruption Act 1988 (NSW)

Cases:
- R v Hall & Ors [2001] NSWSC 827 (Greg James J, on the scope of s 88 of the Evidence Act)