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Supreme Court 16 December 2024

R v Rose

[2024] NSWSC 1614

Homicide
EVIDENCE ADMISSIONS PRE EVIDENCE OF ADMISSIONS EXCLUDED

Citation: R v Rose [2024] NSWSC 1614
Court: Supreme Court of NSW
Date: 16 December 2024
Judge(s): Weinstein J

Background

The accused faced a charge of murder arising from an alleged assault on a man at Ballina in February 2022. The victim was found with serious injuries in a laneway behind his unit and died the following day. NSW Police identified the accused as a suspect relatively early in the investigation.

After the accused travelled to Cairns, Queensland, NSW Police obtained a warrant for his arrest. They also arranged for Queensland Police Service (QPS) officers to place an undercover operative (UCO) in a watch house cell with the accused while he awaited extradition, with the stated aim of gathering evidence and intelligence, including on a specific "wish list" of topics provided by NSW Police.

The UCO covertly recorded a 2.5-hour conversation with the accused on 20 February 2022, during which the accused made a number of admissions concerning his involvement in the deceased's death. The accused applied under s 192A of the Evidence Act 1995 (NSW) for a pre-trial ruling excluding that recording from evidence at trial.

Legal Issues

  • Whether, having regard to the circumstances in which the admissions were made, it would be unfair to the accused to use the evidence of the covertly recorded conversation under s 90 of the Evidence Act 1995 (NSW).
  • Whether the conversation between the accused and the UCO constituted the functional equivalent of an interrogation.
  • Whether the earlier conduct of NSW Police during the investigation, including the ERISP of 8 February 2022, tainted the admissions made to the UCO and informed the unfairness analysis.
  • Whether, if any part of the recording was impermissibly unfair, the recording could be severed so that other parts remained admissible.

Decision

Issue 1: Prior police conduct and its relevance to unfairness

Weinstein J found a pattern of improper and unfair conduct by NSW Police in the lead-up to the covert operation. On 8 February 2022, the accused was arrested for larceny of a chicken but was not cautioned as a murder suspect, despite police having already identified him as one (at [28]-[31]). During the subsequent ERISP, the accused attempted to exercise his right to silence on at least six occasions, yet detectives continued questioning him for approximately 35 minutes on topics entirely unrelated to the larceny and directly relevant only to the murder (at [31]-[37]). The failure to caution was found to be improper and unfair (at [31]). Additionally, the Facts Sheet prepared in relation to the larceny charge contained statements about CCTV footage that were simply not true (at [44]-[45]). The court found that by the end of the ERISP, NSW Police knew the accused would exercise his right to silence if questioned again (at [43]).

Issue 2: The covert operation and the functional interrogation question

The court found that NSW Police liaised with QPS between 16 and 18 February 2022 to establish the covert operation, using information obtained from the earlier improper questioning, and that the UCO request form incorrectly indicated the accused had not exercised his right to silence (at [50]-[54], [125]). The accused exercised his right to silence immediately upon his arrest in Cairns on 18 February 2022, a fact relayed promptly to NSW Police (at [57]-[59]). The covert operation proceeded regardless.

The court characterised the conversation between the UCO and the accused not as a voluntary exchange between equals but as a carefully executed plan of subterfuge designed to exploit a vulnerable man: homeless, an alcoholic, and isolated in a cell for more than 36 hours (at [62], [126]-[127]). Listening to the full 2.5-hour recording, Weinstein J was satisfied that the UCO employed sophisticated manipulation, including building rapport through an "honour among thieves" narrative, to elicit admissions (at [127]). The court found that the "wish list" and information obtained partly through the earlier unfair ERISP was woven through the entirety of the conversation (at [127]). In all the circumstances, the court concluded that the conversation was the functional equivalent of an interrogation that unfairly derogated from the accused's free choice to speak or remain silent (at [127]).

Issue 3: Severance

The court rejected the Crown's alternative submission that the recording could be severed, whether at the point of the UCO's mid-conversation debrief or by excising specific exchanges. Weinstein J found that the craft employed by the UCO made it impossible to disentangle parts of the conversation from others, and that each admission needed to be understood within the broader conversational context (at [127]). The entirety of the recorded conversation was excluded.

Orders Made

  • The covertly recorded conversation between the accused and the undercover operative of the Queensland Police Service, recorded at the Cairns watch house on 20 February 2022, is excluded pursuant to s 90 of the Evidence Act 1995 (NSW).

Key Takeaways

  • Under s 90 of the Evidence Act 1995 (NSW), the relevant unfairness is unfairness in the use of the evidence at trial, not simply unfairness in the method of obtaining it. However, improper prior police conduct remains a relevant consideration in the overall assessment (at [107]).

  • A covertly recorded conversation between a UCO and an accused in custody may constitute the functional equivalent of an interrogation where the UCO actively and systematically elicits admissions, pursues predetermined lines of inquiry, and exploits the accused's vulnerability, even if the exchange has the superficial appearance of casual conversation (at [126]-[127]).

  • Where an accused has exercised the right to silence, deploying a UCO to circumvent that choice is a significant factor bearing on unfairness under s 90. The court found that the covert operation in this case was deliberately contrived to work around the accused's repeated assertions of that right (at [91], [127]).

  • Severance of a covertly recorded conversation will not be available where the UCO's technique is so interwoven throughout the whole exchange that individual admissions cannot be reliably assessed in isolation from the broader conversational manipulation (at [127]).

  • Prior improper police conduct, including interviewing a murder suspect under the guise of a larceny investigation without an appropriate caution and persisting despite repeated invocations of the right to silence, can inform and contribute to a finding of unfairness in relation to later-obtained evidence where there is a sufficient causal connection between the two (at [119]-[127]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Evidence Act 1995 (NSW)
- Invasion of Privacy Act 1971 (Qld)
- Surveillance Devices Act 2007 (NSW)

Cases
- Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
- Pavitt v The Queen (2007) 169 A Crim R 452; [2007] NSWCCA 88
- R v Broyles [1991] 3 SCR 595
- R v Mallah (2005) A Crim R 150; [2005] NSWSC 358
- R v Swaffield & Pavic (1998) 192 CLR 159
- R v Workman [2004] NSWCCA 213
- Sidaros v The Queen [2020] ACTCA 11