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Supreme Court 25 September 2015

R v Fesus (No 2)

[2015] NSWSC 1467

Homicide
CRIMINAL LAW PRE TRAIL PROCEEDINGS UNDER COVER POLICE OPERATION QUESTION OF UNFAIRNESS BY POLICE

Citation: R v Fesus (No 2) [2015] NSWSC 1467
Court: Supreme Court of New South Wales
Date: 25 September 2015
Judge: Wilson J

Background

The accused was charged with the murder of his wife, who disappeared in August 1997 and whose body was found buried in sand dunes at Gerroa approximately one month later. Although police had long regarded the accused as the principal suspect, insufficient evidence existed to charge him, and the investigation was suspended in 2001.

In 2012, the Unsolved Homicide Squad reopened the investigation and authorised a covert undercover operation. The operation involved multiple undercover police operatives (UCOs) and was elaborate in design. It concluded when the accused made admissions to UCO 6, acknowledging he had strangled his wife and buried her body. He was arrested on 8 July 2013 and subsequently interviewed by a detective, during which he denied the murder and claimed the admissions to UCO 6 had been induced.

The accused objected to the Crown leading evidence of both the admissions to UCO 6 and the subsequent police interview. The matter came before Wilson J at a pre-trial voir dire hearing (a preliminary hearing to determine whether particular evidence is admissible at trial).

  • Whether the undercover police operation was conducted lawfully, having regard to the Law Enforcement (Controlled Operations) Act 1997
  • Whether admissions obtained through the covert operation were unfairly obtained, warranting exclusion under s 90 of the Evidence Act 1995 (discretion to exclude admissions in criminal proceedings)
  • Whether the admissions should be excluded under s 137 of the Evidence Act 1995 (mandatory exclusion where probative value is outweighed by unfair prejudice to the accused)
  • Whether any impropriety in the conduct of the undercover operation required exclusion under s 138 of the Evidence Act 1995 (exclusion of improperly or illegally obtained evidence)

Decision

Wilson J admitted the recording of the meeting between the accused and UCO 6, and admitted the subsequent recorded police interview subject to the exclusion of specific discrete portions. Her Honour found no impropriety of the kind captured by s 138 of the Evidence Act 1995 in the conduct of the undercover operation.

Even if impropriety had been established, the court found the desirability of admitting the evidence would have outweighed the undesirability of doing so. The court emphasised that the evidence was highly probative of a very serious offence that had remained unsolved for nearly two decades, and that the investigation had been at a standstill with no viable alternative means of advancing it.

The court drew on the High Court's decision in Tofilau v R [2007] HCA 39, in which similar undercover confession techniques were considered and upheld. In that case, the High Court held that confessions obtained by deception could nonetheless be voluntary, and that arguments for exclusion based on unreliability, unfairness, and public policy did not succeed. Wilson J applied comparable reasoning here.

The accused's claim that his admissions to UCO 6 were induced was noted, including his account given during the subsequent interview with the detective. However, the court accepted the Crown's submissions regarding the circumstances of the admissions, including certain unrecorded admissions made near the service lift following arrest and at the van dock at the Rocks Police Station.

Orders Made

  • Certain recordings and evidence (redacted in the published judgment) summarised in Exhibit VD A were held not to be admissible of themselves; however, the accused may explore those circumstances through cross-examination of UCO 1 and other participating operatives, including on the question of any alleged inducements
  • The recording of the meeting between the accused and UCO 6 on 8 July 2013 (Exhibit VD CV 42) was admitted
  • The recorded interview between the accused and Detective Senior Constable Herft on 8 July 2013 (Exhibit VD CV 43) was admitted, with the following discrete portions excluded:
  • Questions and Answers 170 to 174 inclusive
  • Question and Answer 184
  • Questions and Answers 189 to 191 inclusive
  • Questions and Answers 198 to 205 inclusive
  • Question 259
  • The answer at Q&A 259: "Well, that was the main one"

Key Takeaways

  • Admissions obtained through deceptive undercover police operations are not automatically inadmissible; voluntariness remains the central question, following the High Court's reasoning in Tofilau v R (2007) and R v Swaffield; Pavic v The Queen (1998).
  • Under s 138 of the Evidence Act 1995, a court must balance the desirability of admitting evidence against the undesirability of condoning any impropriety; where the alleged impropriety is not established, the balancing exercise does not arise.
  • The Supreme Court found the public interest in testing highly probative evidence of a serious, long-unsolved homicide before a tribunal of fact weighed significantly in favour of admission.
  • Even where a confession is obtained by deception, a claim by the accused that the admission was induced does not necessarily render it involuntary or require exclusion; the circumstances of the inducement must be carefully assessed on the evidence.
  • Portions of a formal police interview may be severed and excluded while the remainder is admitted, allowing a nuanced approach to the admissibility of interview evidence.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 90, 137, 138
- Law Enforcement (Controlled Operations) Act 1997 (NSW)

Cases
- Tofilau, Marks, Hill, Clarke v R [2007] HCA 39; (2007) 231 CLR 396
- R v Swaffield; Pavic v The Queen [1998] HCA 1; (1998) 192 CLR 159
- Em v The Queen [2007] HCA 46; (2007) 232 CLR 67
- Ridgeway v The Queen [1984] HCA 66; (1984) 184 CLR 19
- R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
- Fleming v R [2009] NSWCCA 233
- Dupas v The Queen [2012] VSCA 328; 218 A Crim R 507