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Supreme Court 10 March 2015

R v Simmons; R v Moore (No 3)

[2015] NSWSC 189

HomicidePublic order & justice offences
CRIMINAL LAW UNSOLVED MISSING PERSONS INVESTIGATION SUSPECTED COLD CASE MURDER USE OF LISTENING DEVICE ACCUSED RECOVERING FROM ACUTE PSYCHOSIS WHETHER WITNESS AN AGENT OF THE STATE

Citation: R v Simmons; R v Moore (No 3) [2015] NSWSC 189
Court: Supreme Court of New South Wales
Date: 10 March 2015
Judge: Hamill J

Background

This decision arose from a pre-trial voir dire (a hearing held in the absence of the jury to determine the admissibility of evidence) in a cold case murder prosecution. Andrew Russell disappeared from the Bathurst area in June 2009 and was never found. The accused Kieran Moore faced a charge of being an accessory after the fact to murder, the Crown alleging that his co-accused Anthony Simmons killed Russell and that Moore assisted in disposing of the body.

Police had conducted an extensive covert investigation. In September 2011, they deployed a listening device at Bloomfield Hospital in Orange, where Moore was an involuntary psychiatric patient recovering from acute psychosis. A witness, Jodi Biles, visited Moore and recorded conversations on behalf of police. In those conversations Moore denied involvement but made statements the prosecution characterised as showing a consciousness of guilt. Moore was not arrested at that time.

In January 2013, following the arrest of his co-accused Simmons, Moore was arrested and charged with murder. After exercising his right to silence during a formal police interview, Moore spoke with his step-father and then made a series of unrecorded statements to police at Bathurst Police Station. Moore alleged those statements were induced by an assurance from police that the conversation would be "off the record."

  • Whether the covertly recorded Biles conversations were obtained unlawfully or improperly, including whether police misled the magistrate who issued the surveillance device warrant, engaging the discretion to exclude evidence under s 138 of the Evidence Act 1995 (NSW)
  • Whether it was unfair to use Biles as an "agent of the state" to elicit admissions from an accused who was an involuntary psychiatric patient and had not been advised of his right to silence, engaging the discretion to exclude under s 90 of the Evidence Act
  • Whether the 2013 admissions at Bathurst Police Station were inadmissible under s 85 of the Evidence Act on the basis that the circumstances (including an "off the record" inducement) made it unlikely the truth of the admissions was not adversely affected
  • Whether the 2013 admissions should in any event be excluded under s 90 as unfair in all the circumstances

Decision

The Biles Conversations

Hamill J excluded the covertly recorded hospital conversations. The court found that the circumstances in which Moore made the statements rendered their use unfair under s 90 of the Evidence Act. Moore was an involuntary psychiatric patient recovering from acute psychosis at the time. He had not been advised of his right to silence and had not previously been interviewed by police. The use of Biles as an agent of the state to record a patient in those circumstances, without the protections ordinarily afforded to a person under investigation, engaged the unfairness discretion. The court also considered whether police had misled the issuing magistrate in the warrant application under the Surveillance Devices Act 2007 (NSW), examining the s 138 discretion, but the judgment as provided rests the exclusion squarely on s 90.

The 2013 Admissions

The court excluded the unrecorded statements made at Bathurst Police Station under the mandatory operation of s 85 of the Evidence Act. Section 85 requires exclusion where the circumstances in which an admission was made make it unlikely that the admission was not adversely affected as to its truth. Hamill J found that Moore had been offered an inducement, namely a representation that the conversation would be "off the record," which Moore understood to mean that what he said would not later be used against him or disclosed to his co-accused. The court found Moore was also under considerable pressure at the time, having just been arrested on a murder charge, having exercised his right to silence, and having been urged by his step-father to say something.

The court was not satisfied that the circumstances were such that it was unlikely the truth of the admissions had been adversely affected. Because s 85 is expressed in mandatory terms, the evidence was not admissible. Hamill J went on to find, without needing to do so given the s 85 ruling, that the discretion under s 90 would also have been engaged. The combination of the prior denial of involvement, the exercise of the right to silence, and the subsequent inducement made it unfair to use the statements against Moore.

Orders Made

  • The evidence of the recorded conversations between the accused and Jodi Biles on 1 September 2011 and 6 September 2011 is excluded.
  • The evidence of the unrecorded statements of the accused at Bathurst Police Station on 18 January 2013 is excluded.

Key Takeaways

  • Under s 85 of the Evidence Act 1995 (NSW), once a court finds that the circumstances of an admission make it unlikely the truth was not adversely affected, exclusion is mandatory, not discretionary.
  • An "off the record" assurance given by police to a person in custody, who has already exercised the right to silence, can constitute an inducement sufficient to engage both s 85 and the s 90 unfairness discretion.
  • Where a witness is deployed by police as an agent of the state to record an accused who is an involuntary psychiatric patient recovering from acute psychosis, and who has not been advised of the right to silence, the fairness discretion in s 90 may be enlivened even where no direct admission is made.
  • The Supreme Court's approach confirms that the right to silence is a relevant contextual factor in assessing fairness under s 90: its exercise immediately prior to unrecorded admissions made after an inducement weighed significantly in favour of exclusion.
  • Covert listening device operations in sensitive settings, such as psychiatric facilities, require careful and complete disclosure to the issuing authority; shortcomings in warrant applications remain a live basis for challenging the admissibility of evidence obtained under the Surveillance Devices Act 2007 (NSW).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 85, 90, 138
- Surveillance Devices Act 2007 (NSW)
- Criminal Procedure Act 1986 (NSW), s 132

Cases
- Tofilau v The Queen [2007] HCA 39; 231 CLR 396
- R v Simmons; R v Moore (No 2) [2015] NSWSC 143
- Em v The Queen [2007] HCA 46; 232 CLR 67
- Em v R [2006] NSWCCA 336
- R v Em [2003] NSWCCA 374
- Ousley v The Queen [1997] HCA 49; 192 CLR 69
- R v Phan [2001] NSWCCA 29; 53 NSWLR 480
- Pavitt v The Queen [2007] NSWCCA 88; 169 A Crim R 452
- R v Esposito (1998) 105 A Crim R 27
- R v Horton (1998) 104 A Crim R 306
- R v Gallagher [2013] NSWSC 1102
- Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
- Fox v Percy [2003] HCA 22; 214 CLR 118
- Flanagan v Australian Federal Police [1996] FCA 16; 134 ALR 495
- R v Chadd [2006] NZCA 449
- R v Ye Zhang [2000] NSWSC 1099
- Pallier v Solomons (No 2) [2014] NSWSC 1524
- Neat Holding Pty Ltd v Karajan Holding Pty Ltd [1992] HCA 66; 67 ALJR 170
- Asim v Penrose & anor [2010] NSWCA 366