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Supreme Court 8 July 2021

R v Kilincer (No. 2)

[2021] NSWSC 829

Homicide
CRIMINAL LAW PRETRIAL APPLICATION ACCUSED CHARGED WITH MURDER [2007] HCA 39 S.84 OBJECTION OVERRULED CONSTRUCTION OF S.85(1) CONSIDERED

Citation: R v Kilincer (No. 2) [2021] NSWSC 829
Court: Supreme Court of New South Wales
Date: 8 July 2021
Judge: Johnson J

Background

The accused was charged with the murder of a 52-year-old automotive workshop owner at Blacktown on 11 December 1995. The victim died from severe blunt force trauma to the head and face. The accused had been employed at the workshop as a transmission mechanic from early or mid-1995 and lived approximately five minutes away. He denied any involvement when interviewed by police in 1995 and 1996.

The case became a cold case. After reviews in 2009 and 2017, and with the accused identified as the main suspect and all other investigative avenues exhausted, police in 2018 authorised a covert operation. Between February 2019 and January 2020, approximately 48 undercover deployments were conducted targeting the accused.

The operation culminated on 29 January 2020 in a hotel room meeting between the accused and an undercover officer posing as the "Big Boss" of a fictitious criminal syndicate. The Crown alleged that the accused made admissions to the murder during that conversation. The accused applied to have those admissions excluded before trial.

The pre-trial hearing, conducted over three days in February 2021, required the court to resolve the following questions:

  • Whether the admissions should be excluded under s 84 of the Evidence Act 1995 (NSW) on the basis that they were obtained by oppressive conduct
  • Whether the admissions should be excluded under s 85 on the basis that the circumstances made it unlikely they were reliable
  • Whether the admissions should be excluded under s 90 on the basis that it would be unfair to the accused to use them
  • Whether the admissions should be excluded under s 137 on the basis that their probative value was outweighed by the danger of unfair prejudice to the accused

Decision

Johnson J overruled each of the four objections and held that the admissions made on 29 January 2020 were admissible.

On the s 84 oppression objection, the court was not satisfied that the conduct of the covert operation amounted to oppressive conduct of the kind required to engage the exclusionary provision. The "Mr Big" methodology, while manipulative by design, did not meet the threshold under s 84 on the facts presented.

On the s 85 reliability objection, the court examined the construction of s 85(1) and the circumstances in which the admissions were made. It was not persuaded that those circumstances made it unlikely the admissions were reliable. The court noted that the accused did not give or adduce evidence at the pre-trial hearing, which bore on what could be established about the circumstances from his perspective.

On the s 90 unfairness and s 137 unfair prejudice objections, the court similarly declined to exclude the evidence. Johnson J noted the Crown's acceptance that certain jury directions identified in an earlier Victorian decision (by Callaway JA in R v Tofilau (No. 2)) would be appropriate, including a direction that the evidence of the accused's participation in fictitious criminal activities was admitted only to establish context, and that the jury must not reason from it that the accused is the kind of person likely to have committed the murder charged. The court recorded these matters for future reference ahead of trial.

Orders Made

  • The court declined to exclude the admissions made by the accused on 29 January 2020 under ss 84, 85, 90, or 137 of the Evidence Act 1995 (NSW).
  • The accused's Amended Notice of Motion filed 15 February 2021 was dismissed.

Key Takeaways

  • All four statutory exclusion grounds under the Evidence Act 1995 (NSW), namely oppression (s 84), unreliability (s 85), unfairness (s 90), and unfair prejudice (s 137), were tested against admissions obtained through a "Mr Big" or "Big Boss" covert scenario operation, and all four objections were overruled on the facts of this case.
  • The "Mr Big" investigative methodology, in which undercover officers pose as members of a powerful criminal syndicate to elicit confessions from suspects, has now been examined in numerous Australian jurisdictions; this decision adds NSW Supreme Court authority to a body of case law confirming such evidence can be admissible.
  • An accused's silence at a pre-trial admissibility hearing (by choosing not to give or adduce evidence) may affect the evidentiary foundation available to support exclusion arguments, particularly under s 85 where the circumstances of the making of the admission are directly in issue.
  • Where "Mr Big" admissions are admitted at trial, certain jury directions are likely to be required, including a direction limiting the use of evidence of fictitious criminal participation to context and prohibiting propensity reasoning from it; the Crown in this case accepted as much, though it reserved its position on further directions relating to the manipulative nature of the technique.
  • A cold case investigation that had stalled for over two decades, with no remaining conventional investigative avenues, provided the operational context for authorisation of the covert operation, a factual feature that appears relevant to the court's overall assessment of the circumstances.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 84, 85, 90, 137
- Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW)
- Acts Interpretation Act 1901 (Cth)
- Evidence Act 1995 (Cth)
- Interpretation Act 1987 (NSW)
- Evidence (National Uniform Legislation) Act 2011 (NT)
- Evidence Act 2008 (Vic)

Key Cases
- Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39
- Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Deacon v R (2019) 282 A Crim R 303; [2019] NTCCA 21
- Director of Public Prosecutions (Vic) v Hou (2020) 62 VR 1; [2020] VSCA 190
- Director of Public Prosecutions (Vic) v Walters (2015) 49 VR 356; [2015] VSCA 303
- R v Burton (2013) 237 A Crim R 238; [2013] NSWCCA 335
- R v Bartle & Ors (2003) 181 FLR 1; [2003] NSWCCA 329
- Bin Sulaeman v R [2013] NSWCCA 283
- Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 39
- McDermott v The Queen (1948) 76 CLR 501; [1948] HCA 23
- Lauchlan v State of Western Australia [2008] WASCA 227