R v John Nan Truong [1996] ACTSC 12 (19 March 1996)

SUPREME COURT OF THE ACT

THE QUEEN v. JOHN NAN TRUONG
No. SCC 14 of 1995
Number of pages - 11
Criminal Law - Evidence - Human Rights

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ

CATCHWORDS

Criminal Law - trial of accused on charge of armed robbery - alleged admissions made by accused to friend - friend fitted with listening device - police recorded conversation transmitted by listening device - whether friend acting as agent of Australian Federal Police - whether evidence of conversation or record of conversation admissible.

Evidence - admissibility of taped conversation - whether admission in conversation influenced by violent, oppressive, inhuman or degrading conduct under s.84 of Evidence Act 1995 (Cth) - whether unlawfully or improperly obtained - reliability under s.85 of Evidence Act - exclusion under s.137 of Evidence Act - trial judge's discretions to exclude under s.138 of Evidence Act - contrast with tests applied and discretions available prior to Evidence Act.

Evidence - proof of treaties - production of reliable source of information under s.174 of Evidence Act - International Covenant on Civil and Political Rights set out in Schedule 2 to Human Rights and Equal Opportunity Commission Act 1986 (Cth) - no proof needed.

Human Rights - whether conversation or recording of conversation contrary to a right recognized by International Covenant on Civil and Political Rights - it was not.

Australian Federal Police Act 1979 (Cth)

Evidence Act 1995 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
International Covenant on Civil and Political Rights

Barker v. R. (1994) 127 ALR 280
Bunning v. Cross [1978] HCA 22; (1978) 141 CLR 54

HEARING

CANBERRA, 1, 4-6 March 1996
19:3:1996

Counsel for the Prosecution : Mr. S. Madden

Solicitors for the Prosecution : Office of the ACT
Director of Public Prosecutions

Counsel for the Defence : Mr. R. Livingston

Solicitors for the Defence : Snedden Hall and Gallop

ORDER

Orders made

DECISION

MILES CJ The accused was tried for an offence of armed robbery in that on 28 July 1992 he robbed Deena Ann Walker of $4,000, having with him an offensive weapon.

2. During the trial objection was taken by Mr. Livingston, for the accused, to evidence of a conversation on 3 September 1994 between the accused and Michael Boland, a friend of the accused. A voir dire hearing was held to determine the question of whether the evidence of the conversation should be admitted into evidence.

3. The facts established for the purpose of deciding issues going to admissibility and to the discretion to exclude the evidence from the consideration of the jury were as follows.

4. On the night of 28 July 1992 three masked men entered the George Harcourt Inn at Ginninderra and robbed Ms. Walker, the Manager, of the takings. One was armed with a knife and another with an axe. The descriptions given by Ms. Walker of the two men who were armed revealed few similarities with the appearance of the accused. The description given of the third man was very general, but consistent with the appearance of the accused.

5. The accused and Mr. Boland were acquainted through their respective past experiences in Vietnam. In early 1994 the accused and his wife parted company and the accused was living in deprived and depressed circumstances. Mr. Boland gave him personal and financial assistance. On 20 May 1994 the accused came to Mr. Boland's house and said that he had "done a bad thing". Questioned by Mr. Boland, the accused said that he had robbed the George Harcourt Inn in 1992. Mr. Boland relayed that information to the police and Constable Pearce accepted it to the extent that it possibly incriminated the accused. The accused became a suspect. Still the evidence was not strong at that stage. Whether or not it was strong enough to warrant an arrest, Constable Pearce considered that if he himself had conducted an interview with the accused at that stage, he would have been obliged to issue a caution. No doubt that would have been a wise course, but it is not certain and does not need to be decided whether a caution was necessary in the light of the information then in the hands of the police.

6. Over the ensuing months Constable Pearce encouraged Mr. Boland to try to arrange another occasion for a meeting with the accused so that Mr. Boland might engage in conversation with the accused on the subject of the robbery with a view to that conversation being transmitted by a device on Mr. Boland's person and recorded by police nearby in the expectation that further evidence of a confessional nature might be obtained.

7. During the course of the conversation recorded on 3 September 1994 reference was made to "The George Harcourt". The accused said that he "did it", that he "did the organizing", that the others involved were a man called Crewdson and a man who has since died of AIDS. Mr. Boland was persistent in trying to obtain further information and the accused made further incriminating statements relating to a paper that the other two men had signed to the effect that they made him "do it" and relating to his knowledge of the other two men.

8. The accused was suspicious throughout the conversation that it might be taped, and towards the end of the conversation he asked whether it was being recorded. Mr. Boland replied that if he was going to do that, he would have done it years before. He attempted to pass the matter off in half jocular fashion. The accused declined to speak further about the incident.

9. In evidence on the voir dire the accused said, and I accepted, that his suspicion deepened at this later stage of the conversation and that if he had realised that the conversation was being recorded, he would never have said anything about the robbery.

10. Constable Pearce said in evidence on the voir dire that he arranged for Mr. Boland to be fitted up with the transmitting device and for the recording device to be set up and activated in the belief that what he was doing was in accordance with the requirements of law. He said further that his belief was founded upon "a reading of the Act" and in particular upon a letter of advice received by the Australian Federal Police from an officer of the Director of Public Prosecutions and circulated within the Australian Federal Police. That letter was in evidence on the voir dire. It was dated 8 February 1993 and was to the effect that the transmission and recording of a conversation in the manner arranged by Constable Pearce was in accordance with s.12F of the Australian Federal Police Act 1979 (Cth) and that no warrant was required for that purpose. The advice was incorrect. The misapprehension on the part of Constable Pearce and the practice which was apparently widespread in the Australian Federal Police was identified and discussed by a Full Court of the Federal Court of Australia in Barker v. R. (1994) 127 ALR 280 to which reference will be made.

11. Section 12F provides as follows:

"Use of listening devices in relation to general
offences

12F.(1) It is unlawful for an official to use, for
the purposes of general offence inquiries that are
being made by members, a listening device for the
purpose of listening to or recording words while
they are being spoken by a person unless:

(a) the official is the speaker of the words or is
a person, or is included in a class or group of
persons, by whom the speaker of the words intends,
or should reasonably expect, the words to be heard;
or

(b) the official listens to or records the words
with the consent, express or implied, of a person
who is permitted by paragraph (a) to listen to or
record the words; or

(c) if the general offence concerned is a class 1
general offence or a class 2 general offence - the
official does so in accordance with a warrant under
section 12G and the provisions of this Division.

(2) It is unlawful for a person acting by
arrangement with an official to use, for the
purposes of general offence inquiries that are
being made by members, a listening device for the
purpose of listening to or recording words while
they are being spoken by a person unless the
first-mentioned person is the speaker of the words
or is a person, or is included in a class or group
of persons, by whom the speaker of the words
intends, or should reasonably expect, the words to
be heard.

(3) It is the duty of the Commissioner to take
reasonable steps to ensure that subsections (1) and
(2) are not contravened by officials.

(4) Despite any law of a State or Territory:

(a) an official does not act unlawfully merely
because the official uses a listening device as
mentioned in subsection (1) in circumstances to
which paragraph (1)(a), (b) or (c) is applicable;
and
(b) a person acting by arrangement with an
official does not act unlawfully merely because the
person uses a listening device as mentioned in
subsection (2) in circumstances in which the use of
the device is not declared to be unlawful by that
subsection."

12. The expression "general offence inquiries" is defined in s.12B of the Australian Federal Police Act to mean, in that division:

"(a) inquiries in relation to a general offence
that has been committed or is reasonably suspected
of having been committed; or

(b) if there are circumstances reasonably giving
rise to the suspicion that a general offence is
likely to be committed - inquiries in relation to
the likely commission of the offence."

13. Section 12B defines "class 1 general offence" and "class 2 general offence". It is sufficient to say for the purpose of these reasons that armed robbery is not a class 1 general offence and whilst it may have been a "class 2 general offence" (involving serious risk of personal injury) there was no warrant issued to authorise the use of the listening device in accordance with s.12G and para.12F(1)(c).

14. Constable Pearce, as a member of the Australian Federal Police was an official within the meaning of s.12B of the Australian Federal Police Act.

15. To adopt the words of Jenkinson and O'Loughlin JJ in Barker at 297, the official was using the recording equipment to which the device used by Mr. Boland was transmitting. He was using it for the purposes of general offence inquiries that were then being made by members of the Australian Federal Police. The transmitting device worn by Mr. Boland was equipment capable of being used, in conjunction with another device, to record spoken words for the purpose of recording words while they were being spoken by the accused. Constable Pearce was neither the speaker of the words nor a person by whom the accused intended, or should reasonably have expected, the words to be heard, nor was Constable Pearce included in a class or group of persons the subject of any such intention or expectation. Constable Pearce did not record the words with the consent of a person who was permitted by s.12F(1)(a) to listen or record the words. Constable Pearce, as the official, had Mr. Boland's consent. But Mr. Boland was not an official. Section 12F(1)(a) operates only to permit an official to listen to or record words if the speaker intends or should reasonably expect the official to hear them. Section 12F(1)(c) did not apply - none of the general offences the subject of inquiry was a class 1 general offence or a class 2 general offence.

16. Again, using the words of their Honours, sub-s.12F(2) did not make unlawful Mr. Boland's use of the device which he concealed about him on this occasion. He was acting by an arrangement with Constable Pearce to use, for the purpose of general offence inquiries that were being made by members of the Australian Federal Police, a device capable of being used, in conjunction with other equipment, for the purpose of recording words while they were being spoken by the accused, but Mr. Boland was a person by whom the accused intended those words to be heard, by direct aural reception face to face.

17. Prior to the Evidence Act 1995 (Cth) (the Evidence Act), which came into force on 13 April 1995, it was for the prosecution to prove that a confession was made voluntarily. If, although voluntary, a confession was obtained improperly or unfairly then the trial judge had a discretion to exclude the confession from the attention of the jury to be exercised depending on the degree of impropriety or unfairness to the accused. A similar discretion was to be exercised if the prejudice to the accused outweighed the probative value of the confession. If the confession was obtained unlawfully but not necessarily unfairly or improperly, there was a further discretion to exclude the evidence, that discretion to be exercised only after weighing up public interest factors in favour of or against exclusion: Bunning v. Cross [1978] HCA 22; (1978) 141 CLR 54. The onus lay on the accused to prove to the satisfaction of the trial judge that the circumstances were such as to call for the exercise of any discretion to exclude evidence otherwise admissible.

18. The common law rules in this regard have been abolished and replaced by the detailed provisions of the Evidence Act. Sub-section 84(1) of the Evidence Act provides as follows:

"84. (1) Evidence of an admission is not
admissible unless the court is satisfied that the
admission, and the making of the admission, were
not influenced by:

(a) violent, oppressive, inhuman or degrading
conduct, whether towards the person who made the
admission or towards another person; or

(b) a threat of conduct of that kind.

(2) Sub-section (1) only applies if the party
against whom evidence of the admission is adduced
has raised in the proceeding an issue about whether
the admission or its making were so influenced."

19. Mr. Livingston on behalf of the accused raised an issue about whether the admission made to Mr. Boland by the accused was influenced by inhuman conduct. The issue thus having been raised, the onus is on the prosecution to satisfy the Court that the admission was not influenced by such conduct or a threat of such conduct. Inhuman conduct I take to be conduct which is in breach of the International Covenant on Civil and Political Rights to which Australia is, as I understand it, a party: see below.

20. Mr. Livingston also submitted that the conversation with Mr. Boland was inadmissible according to the provisions of s.85 of the Evidence Act. That section provides as follows:

"Criminal proceedings: reliability of admissions
by defendants

85. (1) This section applies only in a criminal
proceeding and only to evidence of an admission
made by a defendant:

(a) in the course of official questioning; or

(b) as a result of an act of another person who is
capable of influencing the decision whether a
prosecution of the defendant should be brought or
should be continued.

(2) Evidence of the admission is not admissible
unless the circumstances in which the admission was
made were such as to make it unlikely that the
truth of the admission was adversely affected.

(3) Without limiting the matters that the court
may take into account for the purposes of
subsection (2), it is to take into account:

(a) any relevant condition or characteristic of
the person who made the admission, including age,
personality and education and any mental,
intellectual or physical disability to which the
person is or appears to be subject; and

(b) if the admission was made in response to
questioning:

(i) the nature of the questions and the manner
in which they were put; and

(ii) the nature of any threat, promise or
other inducement made to the person
questioned."

21. "Official questioning" is defined to mean questioning by an investigating official in connection with the investigation of the commission of an offence or possible commission of an offence. "Investigating official" is defined to mean a police officer or a person appointed under an Australian law to carry out functions in respect of the prevention or investigation of offences.

22. It was submitted that s.85 applied because Mr. Boland was to be regarded as an agent of Constable Pearce, a member of the Australian Federal Police, and that accordingly the questioning by Mr. Boland was to be regarded as "official" questioning within para.85(1)(a), or, alternatively, that Mr. Boland was a person capable of influencing the decision whether a prosecution of the accused should be brought within para.85(1)(b). However, in my view, the association between the Australian Federal Police and Mr. Boland or between Constable Pearce and Mr. Boland was not such as to make the latter an agent for either of the former. Whilst Mr. Boland was no doubt acting in order to assist the police in their enquiries he was not, in my view, acting on their behalf. As to the alternative, whilst it is true in a sense that Mr. Boland was in an indirect way capable of influencing the decision whether or not to prosecute (in that it was his choice whether or not he co-operated with the police to the extent of conversing with the accused in the way proposed by the police and in that the very conversation between himself and the accused was likely to be a factor in influencing the police as to whether or not to prosecute), I think that the section is not aimed at such an indirect capacity to influence. Without limiting the operation of para.84(1)(b), I would think that it is designed mainly to exclude unreliable evidence of admissions made to persons in positions of complainants or victims of crime. In any event, having regard to sub-s.84(2), I am of the view, regardless of on whom any onus lies, that the circumstances of the recorded conversation between Mr. Boland and the accused were such as to make it unlikely that the truth of the admission was adversely affected. I reach this conclusion despite the evidence of the accused, supported to some extent by that of Mr. Boland himself, that the accused was at the time very depressed. In the ordinary course of human affairs depression may be as likely to cause a person to confess what is true as it is to cause the person to confess to something fanciful.

23. It remains to consider the effect of ss.137 and 138 of the Evidence Act. They provide as follows:

"Exclusion of prejudicial evidence in criminal
proceedings

137. In a criminal proceeding the court must
refuse to admit evidence adduced by the prosecutor
if its probative value is outweighed by the danger
of unfair prejudice to the defendant.

Discretion to exclude improperly or illegally
obtained evidence

138. (1) Evidence that was obtained:

(a) improperly or in contravention of an Australian
law: or

(b) in consequence of an impropriety or of a
contravention of an Australian law;

is not to be admitted unless the desirability of
admitting the evidence outweighs the undesirability
of admitting evidence that has been obtained in the
way in which the evidence was obtained.

(2) Without limiting subsection (1), evidence of
an admission that was made during or in consequence
of questioning, and evidence obtained in
consequence of the admission, is taken to have been
obtained improperly if the person conducting the

(a) did, or omitted to do, an act in the course of
the questioning even though he or she knew or ought
reasonably to have known that the act or omission
was likely to impair substantially the ability of
the person being questioned to respond rationally
to the questioning; or

(b) made a false statement in the course of the
questioning even though he or she knew or ought
reasonably to have known that the statement was
false and that making the false statement was
likely to cause the person who was being questioned
to make an admission.

(3) Without limiting the matters that the court
may take into account under subsection (1), it is
to take into account:

(a) the probative value of the evidence; and

(b) the importance of the evidence in the
proceeding; and

(c) the nature of the relevant offence, cause of
action or defence and the nature of the subject -
matter of the proceeding; and

(d) the gravity of the impropriety or contravention;
and

(e) whether the impropriety or contravention was
deliberate or reckless; and

(f) whether the impropriety or contravention was
contrary to or inconsistent with a right of a person
recognised by the International Covenant on Civil
and Political Rights; and

(g) whether any other proceeding (whether or not in
a court) has been or is likely to be taken in
relation to the impropriety or contravention; and

(h) the difficulty (if any) of obtaining the
evidence without impropriety or contravention of an
Australian law."

24. The evidence of the admissions to Mr. Boland was of considerable prejudicial effect as far as the accused was concerned. It was probably the only evidence which the jury was entitled to consider to corroborate that of another witness in the trial, Christopher Crewdson. Mr. Crewdson had pleaded guilty and been convicted of the robbery prior to the trial. He was expected to say (and did in fact say) in the trial that the accused was one of the three men concerned. The evidence of Mr. Boland that the accused made the admissions to him was clear and unchallenged. It was conceded by the accused himself in his evidence on the voir dire. There was nothing suggested in the way of a threat or inducement held out to him to make the confession. The evidence of Mr. Boland was potentially of great probative value. It may be said that it was the very probative weight of Mr. Boland's evidence that gave rise to the prejudice. Whether s.137 imposes an onus or not, I was not convinced that any unfairness to the accused outweighed the probative value of Mr. Boland's evidence. The issue of unfairness in this respect is not entirely divorced from considerations to be made under sub-s.138(1) discussed above.

25. The further submission was made that Mr. Boland made a false statement within the meaning of para.138(2)(b). When the accused asked Mr. Boland whether the conversation was being recorded, Mr. Boland sought to avoid the question by pointing to a tape-recorder in the room and saying, "If I was gonna do that mate, I would have done it years ago". That was a false statement on the part of Mr. Boland. Mr. Boland also said during the course of the interview, "They know nothing". That was also, in my view, a false statement during the course of questioning, false to the knowledge of Mr. Boland and stated in circumstances where Mr. Boland knew or ought reasonably to have known that making such false statements was likely to cause the accused, while being questioned, to make an admission.

26. The evidence of the admission made by the accused to Mr. Boland was thus shown to have been improperly obtained on the part of Mr. Boland and in contravention of an Australian law on the part of Constable Pearce. The Court is therefore required to embark upon the exercise of deciding pursuant to sub-s.138(1) whether the prosecution has discharged the onus of establishing that the desirability of admitting the evidence outweighs the undesirability of admitting that evidence. Sub-s.138(3) lays down a non-exclusive list of matters which must be taken into account, leaving it to the Court to decide how such matters are to be taken into account and what weight is to be given to each. The sub-section does not state whether the relative weight of any such matters favours admission or non-admission. It may be implied that the weight of some matters favours admission. For instance, if the probative value was high, that would tend to favour admitting the evidence. If the impropriety or contravention were deliberate that would tend to favour not admitting the evidence. On the other hand, it is far from clear whether the "importance" of the evidence favours admission or non-admission. Behaviour contrary to the International Covenant on Civil and Political Rights would appear to favour non-admission.

27. The Evidence Act does not define or otherwise identify the International Covenant on Civil and Political Rights (the Covenant). Insofar as the Covenant is a treaty between nations, sub-s.174(1) of the Evidence Act provides for various methods of proof, including production of "(b) a book or other publication, containing the ..... treaty ..... that appears to be a reliable source of information". No such book or publication was produced. A copy of the English text of the Covenant as it applies in relation to Australia is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth). It would therefore appear that no further proof of the provisions is required. But despite the general submission that the admission by the accused was influenced by oppressive or inhuman conduct within s.84(1), no particular conduct on the part of Constable Pearce or Mr. Boland was alleged to be inconsistent with any right of the accused recognized by the Covenant. From my own reading of the provisions of the Covenant and in the light of the facts, none occurred.

28. It is relevant to observe that whilst Constable Pearce's conduct was deliberate, it was not intended by him to contravene the provisions of s.12F of the Australian Federal Police Act. To the contrary, he reasonably believed on professional but mistaken advice, that his conduct constituted no contravention at all. He was following the general practice in the Australian Federal Police at the time based on such advice. That practice was one of the circumstances which led the Federal Court in Barker to the conclusion that on the state of the law at that time the taped record of a conversation between co-offenders should be admitted into evidence despite the contravention of s.12F and that the common law discretion to exclude it from evidence did not need to be exercised in fairness to the accused or in accordance with the public interest considerations raised in Bunning v. Cross.

29. In contrast, in the present case, the Bunning v. Cross test does not apply and whilst s.138 may require the exercise of a discretion very similar to that in Bunning v. Cross, it is the section to which the Court must pay attention, bearing in mind that the onus is on the prosecution to establish that the desirability of admitting the evidence outweighs the undesirability.

30. Furthermore, in Barker, the evidence obtained unlawfully was not direct evidence of a confession. English law at least since the abolition of the Star Chamber, and more particularly since the French revolution, has consistently displayed sensitivity about confessions to public officials, with the apparent purpose of distancing itself from European systems of justice in which interrogation by officials of the State play an important and legitimate role. This sensitivity was reflected increasingly in Australian law prior to the Evidence Act and there is no reason to think that the Act was intended to reverse the trend. Hence I concluded, having regard to all the circumstances and having particular regard to the matters set out in sub-s.138(3), that I was not satisfied that the desirability of admitting Constable Pearce's evidence and of admitting the tape of the conversation recorded by him outweighed the undesirability of admitting that evidence.

31. As far as Mr. Boland's evidence was concerned, I gave particular weight to the evidence of the accused that he would not have spoken to Mr. Boland about the robbery if he had known that the conversation was being recorded. It was to the recording that he made objection, not to the fact that Mr. Boland provided an audience. There was no complaint by the accused in his evidence or otherwise about being over-awed by Mr. Boland or of any pressure being brought to bear on him by Mr. Boland to talk about the robbery or to continue any discussion of that matter. When the accused indicated that he did not want to talk further about the robbery, Mr. Boland desisted. Having seen and heard the accused give evidence, I came to the view that the matter of the robbery weighed heavily on his mind since the time of its commission, more so following the death in August 1994 of the man named by Mr. Crewdson as the other co-offender, and the accused's belief that Mr. Crewdson had AIDS. Both these matters were disclosed to Mr. Boland by the accused during the conversation in question. Hence, although the conduct of Mr. Boland was improper in the statutory sense defined by para.138(2)(b), I was convinced that it was not so improper that in all the circumstances Mr. Boland's evidence of the conversation he had with the accused on 4 September 1994 should be excluded from the jury's consideration. Hence, he gave that evidence in the trial.