AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 12 September 2017

R v Mackie

[2017] NSWSC 1211

Homicide
EVIDENCE ADMISSIONS WHERE ACCUSED REFUSES TO PARTICIPATE S 138 EVIDENCE ACT “IMPROPER” EVIDENCE ADMISSIONS WHETHER UNFAIR TO ACCUSED

Citation: R v Mackie [2017] NSWSC 1211
Court: Supreme Court of New South Wales
Date: 12 September 2017
Judge: Garling J

Background

The accused faced a charge of murder arising from the death of a woman whose body was found beneath a bridge near Tathra in October 2015. The Crown case was that the accused participated in the killing alongside her de facto partner, who died by suicide before proceedings commenced. The Crown's case relied substantially on admissions the accused had made in three distinct contexts.

The accused brought a Notice of Motion seeking to exclude: admissions made to an undercover police operative; admissions made during a recorded police interview on 1 December 2015; and admissions made in the presence of a senior detective after that interview concluded. The matter was heard on a voir dire (a hearing conducted to determine the admissibility of evidence, separate from the trial itself).

During proceedings, the Crown indicated it no longer sought to tender the recorded interview or related oral admissions to the interviewing detective. This rendered the second order in the motion unnecessary. The contested issues became whether the admissions to the undercover operative and the post-interview admissions to the senior detective should be excluded.

  • Whether admissions made to the undercover operative should be excluded under ss 84, 85, 90, or 138 of the Evidence Act 1995, including whether the operative's conduct was oppressive, inhuman, or degrading, and whether the admissions were voluntary and reliable.
  • Whether the undercover operative's invocation of the spirit of the accused's recently deceased partner during conversations constituted conduct that rendered the admissions unfair or unreliable.
  • Whether post-interview remarks made by the accused in the presence of Detective Chief Inspector McNeill constituted "admissions" made in the course of "official questioning" within the meaning of s 281 of the Criminal Procedure Act 1986, and whether the absence of a caution affected admissibility.
  • Whether the accused's belief that her post-interview remarks were "off the record" was relevant to admissibility under ss 84, 85, 90, or 138 of the Evidence Act.

Decision

Admissions to the undercover operative: Garling J declined to exclude the admissions made to the undercover operative. The accused had spoken freely and voluntarily, and the operative had not overborne her will. The Court accepted that employing an undercover operative and covertly recording conversations is neither unlawful nor improper under New South Wales law. On the question of the operative invoking the spirit of the accused's recently deceased partner to encourage disclosures, Garling J acknowledged the technique was unusual, but found it did not render the admissions unreliable or the circumstances oppressive, inhuman, or degrading within the meaning of s 84. The admissions remained voluntary in the relevant sense.

The Court also considered whether admitting the evidence would be unfair under s 90 of the Evidence Act, which permits a court to refuse to admit evidence of admissions if it would be unfair to the defendant. Garling J was not satisfied that any unfairness had been demonstrated. The Crown had made no false promises or inducements that could undermine the reliability of what was said. Where the accused gave inconsistent accounts in different conversations, the Court noted the jury would be in a position to assess each account against the broader evidence.

Post-interview admissions to Detective Chief Inspector McNeill: The admissions made after the formal recorded interview concluded, in the presence of DCI McNeill, were excluded. These remarks were made without any caution being administered, and the accused appears to have believed she was speaking informally and "off the record." The Court was persuaded that these circumstances brought the admissions within the scope of the exclusionary principles applicable to official questioning under s 281 of the Criminal Procedure Act, and that admitting them would be unfair or otherwise warrant exclusion.

Recorded interview: Because the Crown no longer sought to tender the recorded interview or related admissions, Order 2 of the motion was rendered unnecessary and was not made.

Orders Made

  • Order 1 (exclusion of admissions to the undercover operative): declined.
  • Order 2 (exclusion of the recorded police interview): unnecessary, as the Crown no longer sought to tender that material.
  • Order 3 (exclusion of admissions made to or in the presence of DCI McNeill on 1 December 2015): granted. Those admissions are not admissible in the proceedings.
  • The Notice of Motion was otherwise dismissed.

Key Takeaways

  • Using an undercover operative and covertly recording an accused's conversations is neither unlawful nor improper in New South Wales, and admissions obtained in this way are not automatically excluded on grounds of oppression or unfairness.
  • Under s 84 of the Evidence Act, "violent, oppressive, inhuman or degrading conduct" sets a high threshold. An undercover operative invoking the spirit of a deceased person to encourage disclosures did not, on the facts here, meet that threshold or render the admissions involuntary.
  • Where an accused makes post-interview remarks in the presence of police, without a caution and in the belief that the conversation is informal or "off the record," those remarks may fall within the reach of s 281 of the Criminal Procedure Act and related exclusionary provisions, warranting exclusion.
  • The Supreme Court confirmed that voluntariness and reliability remain central considerations when assessing admissions under ss 84, 85, and 90 of the Evidence Act, regardless of the method by which they were obtained.
  • Inconsistencies between an accused's different accounts of events do not themselves compel exclusion; the jury retains the function of weighing competing versions against the totality of the evidence.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 84, 85, 90, 138
- Criminal Procedure Act 1986 (NSW), s 281
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Surveillance Devices Act 2007 (NSW)

Cases:
- Em v The Queen [2007] HCA 46; (2007) 232 CLR 67
- Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396
- Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
- Habib v Nationwide News Pty Ltd [2010] NSWCA 34; (2010) 76 NSWLR 299
- R v Dalley [2002] NSWCCA 284; (2002) 132 A Crim R 169
- R v MM [2004] NSWCCA 364
- R v Horton (1998) 45 NSWLR 426
- Higgins v R [2007] NSWCCA 56
- R v Naa [2009] NSWSC 851; (2009) 197 A Crim R 192
- R v Sumpton [2014] NSWSC 1432
- R v Ye Zhang [2000] NSWSC 1099
- Regina v Fulling [1987] QB 426