New South Wales Supreme Court CITATION : R v Ye Zhang [2000] NSWSC 1099 CURRENT JURISDICTION: Common Law - Criminal FILE NUMBER(S) : SC 70096/97 13/11/2000,14.11.2000,15.11.2000, HEARING DATE(S) : 16.11.2000,17.11/2000,21.11.2000, 22.11.2000 JUDGMENT DATE : 1 December 2000 PARTIES : Crown Ye Zhang JUDGMENT OF : Simpson J LOWER COURT Local Court JURISDICTION : LOWER COURT 00108302/97/46 FILE NUMBER(S) : LOWER COURT Ms S Schreiner JUDICIAL OFFICER : COUNSEL : Crown: Ms M Cunneen Accused: Mr D Dalton SOLICITORS : Director of Public Prosecutions Legal Aid CATCHWORDS : Voir dire - evidence of admissions said to have been made by the accused. Mental Health (Criminal Procedure) Act 1990 Evidence Act 1995 LEGISLATION CITED : Criminal Procedure Act 1986 Justices Act 1902 Crimes Act 1900 CASES CITED : R v Donnelly (1997) 96 A Crim R 432 at 438 per Hidden J DECISION : Evidence of admissions excluded. THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION SIMPSON J Friday 1 December 2000 70096/97 REGINA v YE ZHANG Judgment HER HONOUR : 1 On 22 July 1997 the accused was charged with two counts of murder. He was subsequently found, firstly pursuant to s 10, and secondly pursuant to s 29, of the Mental Health (Criminal Procedure) Act 1990 to be unfit to be tried. He having been detained in custody as a prisoner for a period of not less than twelve months, s 30(2) required the court to conduct a special hearing in respect of the offences with which he was charged. In May 2000 such a special hearing was conducted by Newman J and a jury. The jury was unable to agree on verdicts. A second special hearing was fixed to commence on 13 November 2000. 2 Shortly before that date, for reasons entirely outside the control of the accused, his legal representation changed. His new legal advisers took a view of the admission of the Crown evidence radically different from that taken by their predecessors. Accordingly, they requested that a voir dire be conducted into the question of the admission of evidence of admissions made by the accused and constituting virtually the entirety of the Crown evidence against him. It is not disputed that the accused made such admissions: they are largely preserved in electronically recorded interviews, and to the extent that they are not, the accused does not deny that he said substantially what was attributed to him. The challenge to the admission of the evidence concerns the circumstances in which the accused said what he said. The principal contention made on his behalf is that his decision to make the admissions lacked the necessary quality of voluntariness that would permit their acceptance into evidence. 3 That challenge concerns both admissibility in the strict sense, and the exercise of discretions permitting or requiring the exclusion of evidence otherwise admissible. The accused invokes ss 84, 85, 90, 138 and 189 of the Evidence Act 1995 and s 424A of the Crimes Act 1901 (now re-enacted as s 108 of the Criminal Procedure Act 1986). The various bases of challenge have a degree of complexity that calls for a rather detailed outline of the relevant facts and circumstances. The areas of contested fact, for the purposes of this voir dire, are relatively narrow, but where they exist, they are significant. The issues that arise relate to the application of the statutory provisions to the facts. 4 I propose to set out, in the first instance, an outline of the facts as alleged by the Crown. Crown Allegations 5 On 7 July 1997 the badly decomposed bodies of two Chinese immigrants, Mr Jian Zhang and Ms Mai Wang, were discovered in their home unit at 3/17 Cecil Street, Ashfield. After investigation, police concluded that they had been murdered on 2 June. Media outlets, including newspapers published in both the English and Chinese languages, reported the discovery of the bodies, some giving a good deal of detail about the circumstances of the deaths. At that time police had insufficient evidence to charge anybody with the murders. 6 Although it was not known at the time, Ms Wang's credit card was used on an almost daily basis at automatic teller machines for the purpose of withdrawing cash in the maximum amount then permissible. This continued until 22 June. 7 On 22 June two men presented themselves to the Broadway Police Station. They were Jie Song and Zhi Yun Li. Li reported that he had been assaulted and robbed in Belmore Park, and his wallet stolen. It later transpired that the wallet contained not only items and documents identifying him, but also Ms Wang's credit card. The wallet was handed to police on 10 July by a William Chan, who had found it on the verandah of his Surry Hills premises some time earlier, but who appreciated its significance only after reading reports of the discovery of the bodies. The wallet containing the credit card was an important piece of material in the investigation. 8 On 14 July the accused telephoned police and told them that he had information about the identity of the murderers of Ms Wang and Mr Zhang. As a result of telephone call a Mandarin speaking member of the Police Service, Eden Lai, met him and conveyed him to the Ashfield Police Station where he was interviewed by Detective Senior Constable Jason Breton. The accused gave an account that cast suspicion on Jie Song and Zhi Yun Li, but exculpated himself. An electronically recorded interview was conducted, the videotape of which, together with the transcript thereof, became exhibit A on the voir dire. Thereafter the accused agreed to be fitted with a listening device and to attempt to engage Song and Li in conversations about the murders which would be recorded and in which, it was anticipated, they would incriminate themselves. This the accused did over about three days. Although the conversations were monitored, they were generally in a Chinese dialect unfamiliar to monitoring police (including Detective Lai) and could not be understood. Nevertheless Detective Breton and the officer in charge of the murder investigation, Detective Sergeant Mark Goodwin, formed the view that the accused was not making a genuine attempt to bring up the subject of the murders and thus have the other two acknowledge their involvement. At this point, also, the two detectives harboured a suspicion that the accused was more involved in the deaths than he had so far admitted. They continued, nevertheless, to treat him as a witness with relevant information to provide. He allowed them to search his own premises, a tiny room at Bankstown, and admitted to having been involved in a home invasion robbery at Campsie on 22 May with Song and Li. The search of the accused's premises yielded, among other things, a copy of a Chinese language newspaper of 9 July containing a report of the discovery of the two bodies. 9 On Monday 21 July Detective Breton made arrangements for the accused to move out of his room and be accommodated in a hotel. 10 On 22 July Detective Breton prepared to interview the accused again. The purpose of this interview was to take a witness statement that conformed with the provisions of the Justices Act 1902 and would be admissible in evidence in the event of charges being laid against Song and Li. A concurrent purpose of the interview and statement was to provide the foundation for the assessment of the suitability of the accused for the witness protection programme. It was during the course of this interview that the accused admitted his guilt. The circumstances in which he did so are the principal area of dispute. I will return to outline the competing versions of these events below. 11 The accused having admitted his guilt, it became necessary to interview him again, this time not as a witness but as a suspect. This necessitated the use of the electronic recording facilities. The electronic recording equipment at the Ashfield Police Station was not functioning, and arrangements had to be made for replacement equipment to be sent, in order for Detective Breton to conduct the interview. 12 On the arrival of the recording equipment the accused was interviewed at considerable length (Ex B). He gave a detailed account of the events he claimed to have taken place when the victims were murdered. He said that he had met Song and Li at Ashfield Railway Station and they walked to Cecil Street together. His account included the information that Ms Wang's hands had been tied behind her back and secured with sticky tape; that Mr Zhang's had been similarly tied; that Ms Wang's body had been left face down on the double bed, Mr Zhang's face up; that Ms Wang had been forced to disclose the personal identification number of her ATM card; that Song had used his left hand to strangle Mr Zhang; that Li had stuffed a soft cloth into Ms Wang's mouth. 13 The accused drew a rough plan of the interior of the home unit. He explained that it had been possible easily to gain access to the unit because he had on a previous year arranged for a taxation refund to be sent to him at Mr Zhang's address, and that Mr Zhang had telephoned him to say that another taxation letter addressed to him had been delivered, but that later he (Mr Zhang) had called Song to tell him that the letter did not contain a refund cheque, but rather a notification that $400 was owing to the Australian Taxation Office. There was more detail to which it will be necessary in due course to refer. 14 At the conclusion of the interview the accused accompanied detectives to the Ashfield home unit where he identified various parts of the premises to which he had referred, and demonstrated what he said had happened on the occasion of the murders. The entire process was video taped. The video recording and the transcript of the conversation constitute Ex C. It has been referred to as the video of the "walkaround". I shall continue to use that convenient term. Towards the end of the questioning the accused was asked again about the time at which he had met Song and Li. He said he did not know if it was exactly 2 o'clock, it could have been ten minutes earlier or later than 2 pm. He said that it was still very sunny when the three men left the home unit. 15 The police officers and the accused returned to the Ashfield police station where yet another interview took place; this also was electronically recorded. The interview was largely directed to matters other than that now under consideration, and of no present relevance. That part of the interview which is relevant to the present charges became Ex D. The accused was particularly questioned about the time that he had met the other two men at Ashfield Railway Station before walking to Cecil Street. He was unable to be specific about the time of the events in question. *** 16 The above account, although regrettably lengthy, by no means exhausts the factual material it is necessary to consider for the purposes of the present determination. It will be more convenient to expand the relevant factual matters when considering each of the accused's separate arguments. Evidence Act s 84 17 The accused firstly invokes the provisions of s 84 of the Evidence Act. That section is in the following terms: 84. Exclusion of admissions influenced by violence and certain other conduct (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) Subsection (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. 18 It was common ground that the onus lies on the Crown to establish that the making of the admissions was not influenced by conduct of the kind referred to in the section. The accused's contention is that the conduct of the police was violent or oppressive, or constituted a threat of violence or oppression. The argument focuses upon the circumstances in which the accused made admissions of his involvement. In order to consider this contention it is necessary to resolve the disputed issues of fact concerning what precipitated his confession. The two detectives gave essentially identical accounts to the following effect. 19 Detective Breton was in the process of questioning the accused for the purposes already mentioned: that is, of taking a witness statement, and in preparation for the consideration of the involvement of the accused in a witness protection programme. Over a period of time Detective Breton obtained information from the accused concerning his early life in China and the circumstances in which he came to be resident in Australia. The information the accused provided included reference to a relationship the accused had had with a woman, but which had terminated. This piece of information subsequently acquired an unexpected significance. 20 Shortly after this Detective Goodwin entered the room and spoke to the accused. He stressed the importance of telling the truth in the interview, and of disclosing all details, no matter how small they may have appeared. The accused did not reply but put his head in his hands and rubbed his face. Detective Goodwin asked why he was so nervous and again the accused did not initially reply. He began to cry. Detective Goodwin then said: "Ye, if there's something you want to say, you can tell us." 21 The accused then said that he had "done these stupid things with Song and Li". Detective Goodwin asked if he meant by that that he had been involved in the murders and the accused replied that he had done "these stupid things". Detective Goodwin then administered a caution and when the accused said he understood, asked how the murders had taken place. The accused then gave a brief account of the events he said had taken place, again saying that the three had done "these stupid things". Detective Goodwin told him that it would be necessary for him to be interviewed further by Detective Breton. Detective Breton told him that the electronic recording device at Ashfield was not functioning, and that he was trying to secure another. A little later, in a conversation recorded in Detective Breton's notebook, the accused explicitly admitted to having committed "this murder", and was again cautioned. He affirmed the brief account earlier given. 22 In answer to a specific question by Detective Breton, the accused said that the men had arrived at the Ashfield home unit at about 2 pm. 23 In the meantime Detective Breton continued his efforts to obtain facilities for electronically recording an interview with the accused, and the necessary equipment arrived at 5.45 pm. Despite this, on the police version, there was no occasion when the accused was left alone with Detective Goodwin. 24 The conversations recounted above were recorded only in Detective Breton's notebook, which has since been lost as the result of a burglary at his home. However, although the circumstances of the loss of the notebook was explored in evidence, there is no dispute that the accused gave the answers and the information attributed to him by both Detectives Goodwin and Breton. 25 The accused gave a different account of these events. It is worth here observing that he gave his evidence in a mixture of English (in which his proficiency is limited) and Mandarin through an interpreter. Extracts from the transcript quoted will not necessarily give an accurate picture of the difficulties encountered in understanding his evidence. 26 The accused's account of the circumstance in which he made his admissions relevantly begins on the morning of Monday 21 July, when Detective Breton picked him up and took him to the police station, with a view to taking his statement. The taking of the statement, in fact commenced the following day. It will be remembered that the accused was to be accommodated in a hotel. He was, on any view of the evidence, being treated as a witness of some importance. 27 The accused claims that during the journey to the police station Detective Breton offered him, in return for his co-operation with police, free food, free accommodation, citizenship, assistance with obtaining employment, and financial reward. He was later taken to a hotel. 28 On the following morning, when the interview was to begin, the accused was taken by Detective Breton from the hotel to the Ashfield Police Station. He saw Sergeant Lai, who told him to "co-operate". He recounted how Detective Breton had begun taking the statement, a procedure which went smoothly, and said that as they finished, Detective Goodwin entered the room and Detective Breton left. He said Detective Goodwin, who was holding a pen in his hand, pointed at him and accused him of being one of three men who had committed the murders, and that he represented that the accused would not be sentenced at all, or would be sentenced leniently, in return for his co-operation in being fitted with the listening device equipment. He said that he felt physically very uncomfortable; that Detective Goodwin pointed the pen at him, and, effectively, gave him a choice of being charged with murder or co-operating with police; that Detective Goodwin then referred to photographs of Mr Zhang and Ms Wang and said that they were nice people who had come to Australia for a better life and had died tragically; that he again offered the accused a choice of being charged with murder or co-operating with police; that he offered the accused witness security, saying "we look after you"; that he pointed the pen again, saying he wanted to hit the accused in the face; and that he threw the pen down near the accused and gave him one final opportunity to co-operate, telling him that once he (Detective Goodwin) had left the room, the accused would have no further opportunity to co-operate. The accused said that he was experiencing stomach pain at this time. He said that after going to the toilet he felt much better, less stressed, but still in a difficult situation. He said that on the one hand he wanted to co-operate with police but that on the other he had little detail of the events in question, and, accordingly, he began to make things up. He said that Detective Breton returned to the room and began asking questions, and writing down his own questions and the accused's answers in his notebook. Before he did so, according to the accused, he said: "We charge you with murder but we hold your hands up." 29 For reasons that will become apparent, it is necessary here to record that the accused claimed that Detective Goodwin said that he had been in the police force for fifteen years and Detective Breton for twelve years. The accused said that although he signed the record of the conversation in the notebook he had not read it to ensure its accuracy because he trusted Detective Breton. (This seems to have limited materiality since, as noted above, it is not suggested that the written records of the interview are inaccurate or fabricated.) The accused did not deny that he had made the answers and provided the information attributed to him. What he now says is, firstly, that his decision to give the answers was influenced by the oppressive conduct of either or both of the police officers, or the violent conduct of Detective Goodwin and, secondly, that the answers he gave were figments of his imagination. 30 In the voir dire proceedings, neither detective was extensively cross-examined about the accused's allegations. However, during the course of the previous special hearing, a scenario in terms substantially similar to that given by the accused was put to Detective Goodwin in the presence of the jury. He denied the substance of the allegations. The transcript of that hearing is in evidence. It is common ground that issue on these factual matters is joined for the purposes of the present hearing. 31 The first matter to be determined is whether the applicant's version, or that of the police witnesses, (or perhaps some amalgam of the two) of the events immediately preceding his confession should be accepted. Once that factual determination has been made it will be necessary to consider the application of the provisions of s 84. 32 Counsel for the accused submitted that I should accept the accused's version of events. Recognising the difficulty in making a factual determination where two conflicting accounts are before the fact finder, he pointed to certain relatively small, but telling, pieces of evidence tending to support the accused's version. I should here interpolate that the findings of fact I made are in no way dependent upon any assessment of the demeanour of any of the witnesses. It would be unfair, and, indeed impossible, having regard to the accused's unfitness to be tried and language difficulty, to attempt any assessment of his truthfulness by observation of his manner in the witness box. As for Detectives Goodwin and Breton, I saw nothing in the way they gave their evidence that would permit me to accept or reject the accounts they gave. I discard demeanour as a factor relevant to the assessment of the truthfulness of the competing accounts. 33 The first piece of evidence to which counsel pointed concerned the accused's claim that Detective Goodwin had told him that he had been in the Police Force for fifteen years and Detective Breton for twelve. In the special hearing that took place in May Detective Goodwin said that he had joined the Police Force in 1982. In 1997, when these events occurred, he had therefore been in the Police Force for fifteen years, as the accused claimed he had said. There is no other apparent source whereby that information could have come into the possession of the accused. Further, although there was no direct evidence as to how long Detective Breton had, in 1997, been in the Police Force, senior counsel who previously appeared for the accused was able to establish, by reference to his statement, (a rather more convoluted process than was necessary) that Detective Breton is three years younger than Detective Goodwin. It is a not unreasonable inference that he has been in the Police Force approximately three years less than Detective Goodwin. Again, there is no apparent alternative source of this information. In other words, an apparently trivial statement attributed to Detective Goodwin by the accused accords with established facts, and no basis for the accused's knowledge of those facts, other than that Detective Goodwin indeed made the statement, can be identified. All of this tends to suggest that the accused ought be accepted, at least in relation to that part of his evidence in which he claimed that Detective Goodwin had referred to the police experience of the two officers. If the accused is to be accepted in that respect then it is a relatively short step to accept him in relation to the other matters. 34 On the other hand, this was a relatively innocuous statement, and, even though it might be accepted that this was said by Detective Goodwin, it does not establish that the more pertinent allegations made by the accused are made out. It is necessary, therefore, to look for other features of the evidence which may assist in determining where the truth lies. One such matter is the acknowledgment that the two police officers believed that the accused was not, during the period between 14 and 17 July when he was fitted with the listening device equipment, making a real effort to engage Song and Li in inculpatory conversations. Police did not then have access to a translation of what was contained on the tapes. A translation, acquired much later, is capable of allaying their concerns, but this is of no relevance to their then attitude. The fact was that, at that time, the detectives were suspicious of the accused's efforts on their behalf. Further, both officers had a continuing belief, unsurprising in the circumstances, that the accused's offer to assist did not encompass a desire to tell all that he knew, and that in fact he was far more deeply involved in the murders than he had to that point admitted. 35 Further, the account the accused gave of Detective Goodwin telling him that his co-operation would result in a reduced sentence is entirely consistent with the practice of the criminal law, yet no other possible source of knowledge of that practice in the accused has been identified. 36 Another factual matter, also pointing to the accuracy of the accused's account, concerns the unavailability at Ashfield of video recording equipment. Neither Detective Breton nor Detective Goodwin was stationed at Ashfield and could not therefore be expected to be aware of the position there with respect to facilities and equipment. On Detective Breton's account he had embarked upon his interview of the accused for the purpose of taking a written statement, not an interview of a suspected person, and accordingly did not expect or need to make use of that sort of equipment. Detective Breton said that he did not then know that the Ashfield machine was not functioning and he had no reason to know or to assume it. The detailed statements of Detectives Breton and Goodwin made no mention of any occasion upon which Detective Breton left the room leaving Detective Goodwin and the accused alone together, and their evidence was given on the assumption that no such event had occurred. Yet when, (on their version) it became necessary, as a result of the accused's confession, to record an interview electronically, Detective Breton, without apparently leaving the room or making other inquiries, was able to tell the accused that the equipment was faulty and that he was trying to obtain a replacement. In cross-examination he accepted that there was an error in his evidence, because, he said, he did not know until after the accused's confession that the recording equipment was unavailable. That is simply inconsistent with the unbroken sequence of events as recorded in his statement. It is not, however, inconsistent with the accused's account, which was that Detective Breton had left the room and the accused was alone with Detective Goodwin. It is also consistent with an intention on the part of the officers to establish a situation in which the accused would need to be interviewed, not as a witness, but as a suspect, and the interview be electronically recorded. 37 For those reasons, in my view the account given by the accused is more likely to be accurate than and is to be preferred to, that given by the police officer. I have, accordingly, come to the view that the account of events as given by the accused should be substantially accepted. I do not, however, accept that he began to fabricate an account of the event in question. While this impacts on his credibility generally, I have reached the conclusions I have by an analysis of objective or undisputed facts. The circumstance that I do not believe the accused when he says that his account was false does not affect the conclusion about the events preceding the making of the admission. 38 The provisions of s 84 set out the circumstances in which the absence of true voluntariness in admissions will result in the exclusion of evidence of the admissions. The section confers no discretion. Where there has been conduct of the kind described, unless the Crown satisfies the court that the conduct did not influence the admission or the making of the admission, the court is bound to reject the evidence. 39 Having concluded that the facts are substantially as outlined by the accused, the questions which next arise are, in sequence: (i) whether the conduct of either or both of the detectives was violent or oppressive; (ii) whether the conduct of either or both of the detectives constituted a threat of violence or oppression; if either (i) or (ii) is answered affirmatively: (iii) whether I am satisfied that the accused's admission was not influenced by that conduct. 40 Counsel for the accused argued that the promise of witness protection alone is capable of amounting to oppressive conduct. I do not find it necessary to isolate the evidence concerning the offer of future protection from the other evidence relating to the events which preceded the making of the admission, but I doubt whether that circumstance alone could be regarded as oppressive. In this case, the accused was not merely offered witness protection; he was not merely offered witness protection in return for co-operation (which it is also difficult to construe as oppression); he was offered witness protection in exchange for co-operation in the context of being confronted with two alternatives only: to co-operate with police or be charged with murder. He was offered those alternatives at the same time as being told that he could expect a reduced (or no) sentence in return for his co-operation. There was a threat of some kind, of physical violence (when Detective Goodwin told him he would like to hit his face); and, finally and importantly, he was told that once Detective Goodwin had left the room he would have no further opportunity to co-operate with police. This last was calculated to apply pressure to the accused. 41 I am satisfied that the conduct of the police as whole was designed to and did in fact oppress the accused. 42 On behalf of the Crown it was argued that, even if the conduct of the police was capable of being oppressive, the Crown had nevertheless discharged the onus of establishing that the accused's admissions, or his decision to make admissions, was not influenced thereby. 43 The basis for that submission lay in something that occurred during the cross-examination of the accused. Counsel for the Crown was asking him some questions about the young woman with whom he had had a failed relationship. The accused became extremely distressed and tearful. When pressed he gave some answers that demonstrated conclusively that, even in late 2000, the subject is a cause of considerable emotional pain to him. It was pointed out that his breakdown in the police station in July 1997 could be pin pointed in time as following closely upon his giving Detective Breton information on the same subject. It might, therefore, be inferred that, in 1997 when the breakdown of the relationship with the woman was fresher in his mind, it was even more painful, and that it was this vulnerability that broke down his defences and caused him to make the admissions he did. The submission was that the admission was not influenced by any conduct on the part of the police, but rather by his own emotional vulnerability in relation to its subject matter. 44 Having observed the accused in the witness box I am satisfied that the subject of the relationship is one that renders him vulnerable and its having been raised at that time may well have been a factor that precipitated his confession. However, s 84 does not require the isolation of a single reason, or a single event or incident or instance of conduct provoking the confession; there may be a number of factors working together that, combined, cause the admission to be made. If oppressive conduct on the part of police is one of those factors (or, more accurately, if the Crown has failed to negative such conduct as one of those factors) then the evidence is inadmissible. 45 I am not satisfied that the making of the admission by the accused was not influenced by the oppressive conduct. 46 The provisions of s 84 therefore dictate that the evidence not be admitted. 47 It was also argued on behalf of the accused that, even on the version of facts given by the police witnesses, their conduct was relevantly oppressive. I do not find it necessary to consider this argument. 48 That conclusion in effect disposes of the present voir dire. However, in case others take a different view, it is appropriate that I consider, as briefly as possible, the remaining matters argued on behalf of the accused. Evidence Act s 85 49 The next section invoked is s 85 of the Evidence Act which is concerned with evidence of admissions the reliability of which is in question. The section provides as follows: 85. Criminal proceedings: reliability of admissions by defendants (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. 50 It was not in dispute that, even though the accused was not initially being questioned as a suspect, all his admissions were made in the course of official questioning, and, in any event, the admissions certainly resulted from the acts of others with the relevant capacity to influence the decision to prosecute. Accordingly, s 85 has application. By sub s (2) evidence of the admission is not admissible unless the circumstances were such as to make it unlikely that the truth of the admission was adversely affected. 51 Application of this section produces a different result to the application of s 84. Once again I proceed on the basis that the accused's account of events is to be preferred to that of the police officers. The focus of s 85 is the reliability of the admission in the circumstances in which it was made. It is necessary to consider with some care what the two officers said to the accused. Detective Breton had offered him the benefits mentioned earlier in (paragraph 27). Sergeant Lai had advised him to co-operate. Detective Goodwin had held out the offer of no, or a reduced, sentence; had expressed sympathy for the two victims and made a threat of violence; had imposed a deadline on the time during which the accused would be allowed to take advantage of the offer of co-operation; had conveyed his belief that the accused was involved in the killing; and had offered a choice of "co-operating" with police or being charged with murder. In cross-examination the accused agreed that Detective Goodwin had impressed upon him the importance of telling the truth, including the small details that may have seemed unimportant. Apart from the last matter, while the conduct of police affected the voluntariness of the accused's confession, it does not, to my mind, have the same impact on its reliability. Generally speaking, s 85 is directed to the circumstances in which an admission is made and any impact those circumstances may have on the reliability or otherwise of the admission. The section is not directed to the truth or falsity of the content of the admission: see R v Rooke (unreported, Court of Criminal Appeal, NSW, 2 September 1997 per Barr J) but that position is not absolute. S 189 governs the conduct of voir dire proceedings. That section is relevantly in the following terms: 189. The voir dire (1) If the determination of a question whether: (a) evidence should be admitted (whether in the exercise of a discretion or not), or (b) evidence can be used against a person, or (c) a witness is competent or compellable, depends on the court finding that a particular fact exists, the question whether that fact exists is, for the purposes of this section, a preliminary question. … (3) In the hearing of a preliminary question about whether a defendant's admission should be admitted into evidence (whether in the exercise of a discretion or not) in a criminal proceeding, the issue of the admission's truth or untruth is to be disregarded unless the issue is introduced by the defendant. 52 The combined effect of sub ss (1) and (3) is that where the voir dire determination concerns the admission of evidence of an admission in a criminal case, the truth or falsity of the admission is to be disregarded unless that issue is introduced by the accused. It seems to me that sub s (3) is designed to obviate a "bootstraps" argument in the determination of the admission of the evidence. That is, evidence of an admission will not be admitted because the admission can be shown, by other evidence, to be truthful. The attention of the court is to be directed to the circumstances in which the admission was made, excluding evidence that would substantiate or contradict the admission. The legislation delineates the circumstances in which the admission was made from its independently verifiable (or otherwise) content. An exception to that position, provided in s 189(3), is made where the accused introduces the question of truth or falsity of the admission. Where the accused takes that course, neither the Crown or the court is precluded from embarking on an examination of the proof of the admission, although it may be that the extent to which that will be considered is limited: R v Donnelly (1997) 96 A Crim R 432 at 438 per Hidden J. 53 Here the accused has explicitly raised the question of the truth or falsity of the admission he undoubtedly made. In his evidence he claimed that he began making up things that were not true. His counsel pointed to various details of the confession that were at odds with facts objectively provable. If the truth or falsity of the confession bears upon the determination of the preliminary question, considerations of that issue is not, therefore, prohibited. 54 S 189 is not without complexity. A "preliminary question" is, relevantly, a question as to whether a fact, upon which the admission of evidence depends, exists. The "preliminary question", for present purposes, is whether the circumstances in which the accused's admission was made make it unlikely that its truth was adversely affected. In the consideration of that question, because the accused has asserted that that admission was untruthful, it is legitimate to have regard to all of the evidence concerning its veracity. However, it is appropriate to consider separately the two questions, that is, the question relating to the circumstances in which the admission was made (excluding issues of its veracity) and, only after that has been done, the question of its truth or falsity. 55 I have already indicated that I do not consider that the circumstances generally (excepting one) in which the admission was made adversely affected its reliability. Putting that correctly, I am satisfied that the Crown has established that the circumstances (excluding one) in which the admission was made were such as to make it unlikely that its truth was adversely affected. I specifically include in this Detective Goodwin's injunction to the accused that he had a limited time in which to make up his mind to co-operate. While that placed pressure on the accused to decide to make the admission (a circumstance relevant to s 84) it did not operate adversely on the veracity of what he said. Indeed, it may well have had the opposite effect. 56 The remaining circumstance, however, is less favourable to the Crown. Detective Goodwin gave the accused two alternatives only: to "co-operate" or be charged with murder - it being, presumably, implicit that if he were charged with murder in the absence of co-operation, he would not obtain the benefit of a reduced sentence, witness protection and so on. 57 Co-operating with police in this context plainly meant admitting participation in the killings. This alone (leaving aside questions of veracity) would prevent my being satisfied that it was unlikely to have adversely affected the truth of the admission. The accused well knew what was expected of him in terms of "co-operation". However, as I have noted above, it is legitimate to take into account, and make an assessment of, the truth or falsity of the admission. There is no dispute that the initial admissions were in terms substantially as recorded by Detective Breton. Subsequent admissions are objectively verifiable by reason of the video recording of the interview following the admission (Ex B) and the video of the "walkaround" (Ex C). The accused gave a great deal of detail on each occasion. Some of that detail has been shown to have been incorrect. For example, the accused said that he met the two co-offenders at Ashfield Railway Station at about 2 pm (on a June day) and walked with them the relatively short distance to Cecil Street. In the answer referred to above he said that it was still sunny when they left Cecil Street, having murdered the two victims. Other evidence establishes that Ms Wang was last seen at Petersham TAFE at 3.45 on 2 June; Mr Zhang was believed to have left work at Glebe at about 4.30 pm. Sunset on that day was at 4.55 pm. These facts make it plain that the accused's answers about the time in which the events he described took place cannot be correct. 58 The point made by counsel for the accused is a telling one. Added to that, there are other discrepancies between the account given by the accused and other objectively proven circumstances. He told police that at the time he was living at the Matthew Talbot Hostel at Woolloomooloo and had been asked to leave because he had not paid rent for his accommodation. Records of the Matthew Talbot Hostel show that he did not take up accommodation there until 4 June, two days after the murders. He had, however, been living at another hostel, apparently of a similar kind to the Matthew Talbot, and in the same general area of Sydney. 59 The accused explained the ease with which the three gained access to the victims' apartment by reference to the "taxation letter" that he said Mr Zhang had advised was ready for collection. His counsel submitted that the evidence demonstrated relevant and substantial inaccuracy. There was indeed found at the premises a letter from the Australian Taxation Office addressed to the accused, but it was a letter to do with superannuation and did not meet the description given by the accused. Moreover, it bore the date 28 May 1997, a Wednesday. It was initially addressed to the accused's accountants in another suburb, who had, evidently, on receipt, forwarded it to the address at Cecil Street given to them by the accused. The available evidence does not disclose whether or not it was in the Cecil Street unit when the victims were killed on 2 June. It may have been found among mail collected by a neighbour. The Crown has submitted that the existence of the letter is an important factor corroborating the accused's account; counsel for the accused has, to the contrary, submitted that the divergences between the description given by him, and the relevant dates, suggest that his account was untruthful. The dates are material because, it was submitted, it was unlikely that the letter dated 28 May (Wednesday) had been posted and arrived at the accountants' in time to be re-directed to and arrive at Ashfield by 2 June (Monday) and allow Mr Zhang time to make the two phone calls notifying the accused and Song of the arrival of and the contents of the letter. I do not accept the submission made on behalf of the accused. In my view the presence of the letter gives substantial support to the accuracy of the version given by the accused. 60 Another divergence between incontrovertible facts and the description given by the accused relates to the position of the victims on the bed after their murder. In the walkaround video the accused asserted that they were lying across the bed; police who discovered the bodies said they were lying, conventionally, lengthwise. 61 Reference was also made by counsel to the contents of media reports of the murders, especially those in Chinese language newspapers. These were relied upon as containing much of the information which the accused gave to police, indicating a source, other than personal knowledge, of the detail of the murders. One matter in this regard was highlighted. A motor vehicle belonging to the couple was located in the supermarket car park. When the accused was asked in the interview (Ex B) about Mr Zhang's car, he answered that the car was a blue coloured Nissan. In fact, Mr Zhang's car was yellow (Ex P). However, it was described in a newspaper article as a Nissan Bluebird. This, on the argument of the accused's counsel, demonstrated the extent to which the accused had absorbed and adopted what he had read and that he recounted that to the police as distinct to recounting what he knew of his own knowledge. 62 These arguments are of some substance and cannot be discounted. The suggestion that the accused fabricated his confession cannot be seen in isolation from the fact that he has now been diagnosed as suffering from schizophrenia. But Dr Wong, who has examined the accused on at least three occasions, has also viewed the video tapes of the records of interview, and saw in them no evidence of psychiatric disorder at the time they were made. Counsel indicated that he intended to have Dr Wong and another psychiatrist listen to the audio tapes recorded by the listening devices for the same purpose. No evidence was adduced to suggest that, at the time the accused answered the questions put to him by police, he was psychiatrically disturbed. I do not think that the consideration of the veracity of the admissions, so far as that is relevant to the s 85 determination, should be based upon doubt emanating from the later diagnosis of schizophrenia. The earliest evidence of a diagnosis, or provisional diagnosis, of that disorder is in Dr Wong's report of April 1999, following interviews with the accused in the same month. 63 I was asked to watch the whole of the video tape of the "walkaround" and did so in Chambers. It shows the accused willingly answering police questions, identifying relevant parts of the apartment, demonstrating what he said had taken place. It was, as the Crown submitted, a compelling piece of evidence. 64 I am satisfied that, notwithstanding the circumstances in which the admissions were made, and my conclusion that they were deprived of the necessary quality of voluntariness that would permit their admission into evidence, the reliability of the circumstances in which they were made is unaffected. I would not, on the basis of s 85, reject this admission. The veracity or accuracy of the content of the admissions would, if they were otherwise admissible, be a matter for jury determination. Evidence Act, s 90 65 The accused also invokes s 90 of the Evidence Act. That section is in the following terms: 90. Discretion to exclude admissions In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. 66 The section confers a discretion in general terms, but that discretion arises only when the conclusion has been reached that the admissions were made in circumstances such as to make it unfair to the accused to admit the evidence. The section is in this respect to be contrasted with ss 84 and 85, each of which requires exclusion if the Crown is able to establish the necessary basis for admission. 67 There is, for present purposes, a real distinction between s 84 and s 90. S 84 requires exclusion of the evidence if the Crown fails to negative influence as the result of oppressive conduct. S 90 permits rejection of the evidence if it is shown that the circumstances would render its admission unfair. A finding that the Crown has failed to negative influence for the purposes of s 84 does not necessarily carry the corollary, that is, that the admission is in fact made as a result of the oppressive conduct. However, my conclusions above do, in effect, in this case have that consequence. Accordingly, I would exercise the s 90 discretion to exclude the evidence. Evidence Act, s 138 68 S 138 requires the exclusion of evidence obtained improperly or in contravention of an Australian law or in consequence of such an impropriety or contravention unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in that way. In sub s (3) a non-exhaustive list of matters to be taken into account is provided. 69 The foundational impropriety or contravention on which counsel for the accused relied is what is alleged to have been a contravention of s 424A of the Crimes Act. S424A, as it stood in 1997 (its provisions have since been transferred to the Criminal Procedure Act 1986, (s108)) provided that evidence of an admission made in the course of official questioning was not admissible unless (i) there was available to the court a tape recording of the interview in which the admission was made; or, alternatively, (ii) if the Crown established to the court that there was a reasonable excuse for not making such a tape recording, it was able to provide a tape recording of a subsequent interview containing an acknowledgment that the admission had been made; or, in the further alternative, (iii) the Crown established a reasonable excuse for not making either of the tape recordings referred to in (i) and (ii). 70 The substantive provisions of s 138 do not come into operation unless there is first established a relevant impropriety or contravention. 71 It is to be observed that s 424A was a section concerning the admission of evidence. It was not a section that imposed any obligation or duty on any person or forbade or prohibited any conduct on the part of any person, such as to be capable of giving rise to a contravention. Contrary to the submission of counsel for the accused, there was no contravention by the detectives in questioning the accused without tape recording equipment, nor any failure to comply with the provisions of the section. The section simply is not susceptible of contravention or failure to comply. 72 That leaves remaining only the issue whether the questioning of the accused in the absence of recording equipment amounted to an impropriety within the meaning of s 424A on the part of the detectives, such as to activate the provisions of s 138. Again, it is difficult to see how a section dealing with admissibility of evidence can provide the foundation for a finding of impropriety. There is nothing is s 424A that governs conduct of interviews by police officers; the section is concerned only with the evidentiary consequences of the unavailability of tape recordings of admissions. The intent of the legislature was, no doubt, to encourage investigating officials to conduct interviews in such a way as would not result in their rejection for evidentiary purposes, but failure on the part of investigating officials to respond to such encouragement does not constitute impropriety. There was no impropriety in the conduct of the detectives in failing to tape record the accused's admissions. Accordingly it is unnecessary to consider further the requirements of s138 because the foundation for its operation has not been established. ********** Last Modified: 12/07/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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