Reported Decision : 168 A Crim R 423 New South Wales Supreme Court CITATION : R v Almirol [No 1] [2007] NSWSC 290 29/01/07 - 31/01/07 01/02/07 HEARING DATE(S) : 05/02/07 - 09/02/07 12/02/07 - 16/02/07 19/02/07 - 21/02/07 JUDGMENT DATE : 21 February 2007 JURISDICTION : Common Law Division Criminal List JUDGMENT OF : Kirby J DECISION : Telephone Intercept evidence allowed. CATCHWORDS : Criminal Practice & Procedure - admissibility of Telephone Intercepts - accused overseas - police use friend to telephone - police agent - no warning - warrant granted in respect of telephone number in Australia - whether that number "likely to be used" by accused - whether evidence improperly obtained - or were "admissions" that it would be unfair to use - s90(b) Evidence Act. LEGISLATION CITED : Telecommunications (Interception) Act 1979 Evidence Act 1995 R v Almirol [2006] NSWSC 898 Barbaro v DPP (1999) 49 NSWLR 68 NSW Crime Commission v Vuletic [2005] NSWSC 614 Flanagan, Howard & Grollo v Commissioner of the Australian Federal Police (1996) 134 ALR 495 Van der Meer (1998) 35 A Crim R 232 Swaffield & Pavic v The Queen (1998) 192 CLR 159 CASES CITED : Collins v The Queen (1980) 31 ALR 257 R v EM [2003] NSWCCA 347 EM v Regina [2006] NSWCCA 336 R v Hebert (1990) 2 SCR 151 R v Broyles (1991) 3 SCR 595 R v Cassar (No 27) [1999] NSWSC 650 O'Neill (1995) 81 A Crim R 458 PARTIES : Regina Alejandro Almirol FILE NUMBER(S) : SC 2004/2997 COUNSEL : A J Robertson (Crown) P M Paish (Accused) SOLICITORS : S Romeo - DPP (Crown) P Ash & Associates (Accused) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST JUSTICE DAVID KIRBY Wednesday 21 February 2007 2997/2004 REGINA v Alejandro ALMIROL JUDGMENT [No 1] - Admissibility of Telephone Intercepts 1 KIRBY J: Alejandro Almirol is charged with the murder of Palatavake Tauveli at Regents Park on 15 December 2002. The trial was originally listed on 7 March 2005 as a joint trial before James J, the co-accused being Prehector Trocio. Prehector Trocio thereafter pleaded guilty and was sentenced. 2 The trial of Alejandro Almirol was adjourned. It was again listed before James J on 7 November 2005. The trial judge was asked to determine the admissibility of telephone conversations between a Crown witness, Mrs Cora Davis, and the accused. The calls had been intercepted pursuant to a warrant under the Telecommunications (Interception) Act 1979 ("the Act"). The warrant was obtained by the police on 23 May 2003. Counsel then appearing for Mr Almirol conceded that the warrant had been lawfully obtained. It was argued, however, that the evidence should be excluded under s90(b) of the Evidence Act 1995 because it was said to be unfair. On 8 November 2005, James J rejected that application. He ruled that the intercepted conversation should be admitted, subject to the following: (p12) "7 ... It may be that there would be some prejudice to the accused through the admission of evidence of things said by Trocio about what had happened on 15 December 2002. However, I consider that the accused can be protected against any such prejudice by the giving of directions and/or by the editing of the interview." 3 Mr Almirol then pleaded guilty. However, the following day he made an application to withdraw that plea. The application was later heard by James J. On 8 September 2006 leave was given to withdraw the plea (R v Almirol [2006] NSWSC 898). The trial is now listed before me. Mr Paish of counsel now appears for Mr Almirol. Counsel has sought to revisit the issue concerning the admissibility of the intercepted telephone calls. It has been submitted that the evidence should be excluded upon the following bases: · First, it was said that the warrant was invalid and the evidence improperly obtained; · Secondly, there was, in any event, a problem in respect of the intercepted conversations on 24 May 2003. Telstra made an error when intercepting the calls. The consequence was that there was no valid warrant to support the interception; · Thirdly, further evidence called on the voir dire underlined, according to counsel, the unfairness of the procedure adopted by the police. The evidence should therefore be rejected under s90(b) of the Evidence Act. Alternatively, the conduct of the police was improper and the evidence should be rejected under s138. 4 Before dealing with these arguments, I should set out the background to the charge. Background. 5 Mr Alejandro Almirol ("the accused") was born in the Philippines in 1964. He lived in a village and spoke a dialect known as "Tagalog". He came to Australia on a tourist visa in 2001. He got a job working in a cheese factory in Yagoona. Prehector Trocio worked at the same factory, as did the deceased. The deceased was a 40 year old man, originally from Tonga. 6 The accused met and befriended Mrs Cora Davis. Mrs Davis was married to Mr Rodney Davis. They lived at 1 Maunder Street, Regents Park. Mr Almirol was invited to move into their home, where he became a border. Mrs Cora Davis was born in the Philippines and spoke the Tagalog dialect. She knew the accused's wife. They lived in the same village as Mrs Davis' mother. According to the cultural tradition of the Philippines, Mrs Davis referred to Mr Almirol's wife as "sister". 7 On 15 December 2002, Mrs Davis and her husband left Australia for the Philippines on holidays. They permitted Mr Almirol to remain in the house. The same day Mr Almirol invited the deceased and Prehector Trocio to the house. They drank alcohol. There was an argument. The deceased was struck with a steel chair and rendered unconscious. Later his throat was cut, that being the action which presumably caused his death. The substantial issue concerns the part played by the accused and by Mr Trocio in these events. 8 The deceased having died, the accused and Prehector Trocio attempted to move his body to a car so that it could be dumped. However, the deceased was too heavy. The following day, 16 December 2002, the deceased's body was cut into sections. The accused acknowledged that he participated in that process. He asserted that Mr Trocio did as well. The body parts were then placed with other items, including blood stained cushions, sheets and rubber gloves, in plastic bags. It was common ground that the accused and Prehector Trocio then drove to the Blue Mountains. At least four plastic bags were deposited in locations which were widely scattered and remote. 9 On 19 December 2002, with the assistance of Mr Trocio and his wife, Mr Almirol left Australia. He returned to the Philippines. On 30 December 2002, and in the week that followed, the plastic bags were found. The remains were identified as those of Palatavake Tauveli. 10 It is instructive to examine the police investigation, as it unfolded, in order to understand what the police knew at the time they made application for an interception warrant. Having identified the deceased, the police attended the cheese factory where he had worked. They learned that he had last attended work on Friday 13 December 2002. He had been expected at work the following Monday, but did not arrive. Two other employees, Messrs Almirol and Trocio, had also unexpectedly ceased work some days later. 11 One of the plastic bags included a prescription from a chemist in Lidcombe. The prescription was in the name of Herbert Davis, the father of Mr Rodney Davis. By this means the police were led to 1 Maunder Street, Regents Park, the home of Mr Rodney and Mrs Cora Davis. On 3 April 2003 they interviewed Mr Davis. He disclosed that Mr Almirol had lived at his home. However, when he and his wife returned from the Philippines on 18 January 2003, he was no longer living there. Mr Davis said he believed that he had returned to the Philippines. He could offer no explanation for the presence of a prescription relating to his father in one of the plastic bags. He did say, however, that upon his return there was evidence of a "major disturbance of property". The carpet and underlay in one of the bedrooms had been rolled up. The carpet tiles in the sunroom had been removed. The furniture had been rearranged. 12 On 15 April 2003, the police executed a search warrant on 1 Maunder Street, Regents Park. The police described the result of the search in these terms: (Ex 2, p4/5) "15 … The premises were found to be in the condition that Davis had described. Chemical scientific examination was conducted on the premises. The chemical examination indicated blood in the bedroom with the carpet rolled up. The blood in this room was on the walls and the flooring. Examination then showed distinctive drag marks in blood from this bedroom through the hallway to the sunroom located at the rear of the premises. Examination of the sunroom revealed a significant amount of blood on the walls and floor. Underneath the house police found a bag of carpet tiles that had apparently come from the sunroom. These tiles also tested positive to blood. …" 13 After the search, Mr and Mrs Davis attended the police station and were interviewed. Mrs Davis said that she had met Mr Almirol by chance at the Flemington Markets after his arrival in Australia. She repeated much of the information her husband provided. Nothing was said to implicate Mr Almirol in the murder, although she did confirm the state of the premises upon her return from the Philippines. 14 On 24 April 2003, the police interviewed the wife of Prehector Trocio, Mrs Marie Trocio. Mrs Trocio knew both the deceased and Mr Almirol. They worked at the same cheese factory as her husband. She said that Mr Almirol drank a lot. Mr Almirol had asked her husband to assist him in obtaining a passport. He said his father was ill and he urgently needed to return to the Philippines. Money and assistance had been provided. They drove him to the airport. Mrs Trocio then said this: (Ex A, s'ment Marie Trocio, 24/4/03, p4) "21. During the drive home or before going to work, Hector said, 'Lito told me that he killed Mr T.' I said, 'I don't want to know.' I wish he didn't tell me. At first I didn't believe him but after thinking about it, I thought, 'Why would he leave so quickly.' Hector probably knows more, but I didn't want to know." 15 On the same day the police conducted a Record of Interview with Prehector Trocio. He disclosed that his wife had dropped him at 1 Maunder Street, Regents Park, on 15 December 2002. Both the accused and the deceased were already there drinking. After a time he left the house and, as he did so, Mr Almirol telephoned him on his mobile phone. He asked him to return. He then saw Mr Almirol "smack" the deceased "with a chair, and he went down" (Ex A, R of I, p15, Q140). Mr Trocio said that he protested, saying in English: "Don't, don't." The Record of Interview then included these words: (Ex A, R of I, p15/16, Q142) "A … He saying, 'Go there, go there. If you're not with me then you know, then go to the, … by myself.' What are you talking about … 'just go there and watch in the door somebody coming.' And he hit him with the knife and I was just there standing at the door looking for someone coming in, and I kept telling him, 'Don't, don't.' He not listen to me. And he kept on going, and I was afraid to, my life, after that he asked me to get the pulse." 16 Mr Trocio acknowledged that they then attempted to lift the body so that it could be placed in the boot of the car. However, the deceased was too heavy. They dragged the body back inside. According to Mr Trocio, the accused then cut the body into four sections, which were then placed in plastic bags. The bags were placed in the boot of the car. Mr Trocio acknowledged that he drove the car with the accused as a passenger. The bags were disposed of in the Blue Mountains. Within a matter of days the accused left Australia for the Philippines. 17 Mr Trocio told the police that, at the time of the murder, Mr Almirol was wearing running shoes, consistent with the shoes located by the police on their search of 1 Maunder Street, Regents Park. 18 On 8 May 2003, Detective Murphy prepared an Information to obtain a first instance warrant for the arrest of Mr Almirol on a charge of murder. The Information was lodged with the Bankstown Court and the warrant issued the same day. 19 On 20 May 2003, the police again interviewed Marie Trocio. She acknowledged that aspects of her previous statement had been untrue. She also provided additional information concerning her husband's involvement in the clean up of the house and the disposal of the body. 20 The following day, 21 May 2003, Mrs Cora Davis was interviewed for a second time. She also acknowledged that aspects of her first statement had been untrue and that she had withheld information. She said that she knew of Mr Almirol in the Philippines, through his wife who was from the same village. On 16 December 2002 she said that she had received a telephone call in the Philippines made from her home in Regents Park by Hector Trocio and the accused. According to her statement, the conversation was in these terms: (Ex A, s'ment Cora Davis 21/5/03, p2) "10. … I said, 'Where are you ringing from.' Hector said, 'from your house … don't get shocked … what I'm gonna tell you … we killed someone.' I said, 'That's bullshit, I don't believe you, you're having me on.' Hector said, 'It just happened, we had no choice, we had to do it.' I said, 'Who was it?' Hector said, 'Mr T.' I said to Hector, 'Can I talk to Amang?' Hector said, 'Here's Amang.' I then heard Hector say in the background, 'Talk to her she doesn't believe me.' Amang then got the phone and I heard his voice say, 'You have to believe it.' I said, 'Why did you do it, why did you have to kill someone.' Amang said, 'It's self defence.' Hector then got the phone and I heard Hector's voice again say, 'What you gonna do?' He said, 'I don't know, it's just happened, I can't think what to do now.' I said, 'I have to ring Rod and tell him everything that you told me.' Hector said, 'Yeah tell him.' I knew that I was talking to Hector and Amang because I recognised their voices as I have spoken to them many times on the telephone and in person before this." 21 Mrs Davis said that Mr Almirol then contacted her after his arrival in Singapore, when in transit. They met shortly before Christmas at a farm close to the village. Mrs Davis recounted her conversation with Mr Almirol in these terms, referring to him by the name "Amang", and the deceased as "Mr T": (Ex A, s'ment Cora Davis 21/5/03, p3) "17. Amang and I then went to a farm not far from Amang's father's farm at Santa Arcadia. When we there I said, 'Can you tell me what happened? How did you kill him? Tell me what happened from the beginning.' He said, 'When you left Sunday, I went to work and Hector arranged Mr T to come over for a drink.' I said, 'How did you meet Mr T then?' He said, 'I met him at the train station and then we went to your place.' He also said that Hector had drunk one bottle of Crown Lager but Mr T and he had shared a bottle of Scotch. He said that the rest of Hector's beer is in the fridge. I said, 'So Hector's not really drunk then, he knows what he's doing.' Amang said, 'No but because he was a drug addict in the past he is a bit nervous.' I said, 'Why did youse kill him, what's the reason?' 18. Amang said, 'When I went to the toilet, Mr T and Hector were talking. When I came back from the toilet, Mr T said he was going to kill Hector. Hector told me that Mr T was going to kill him. Hector asked me what I was talking about, he asked me if Mr T and me were having a go at him. I told Hector that I'm your friend, we're not talking against you. Hector told me that Mr T is going to kill him.' I said, 'Why Mr T is going to kill Hector?' Amang said, 'Hector went out and he rang me. Hector keep saying that Mr T is going to kill him. Hector kept asking me what Mr T and me were saying about him. I told him, 'Nothing, you don't trust me I'm your friend.' I asked Hector to come back to the place. Hector then came back to the place. I went again to the toilet and then Hector and Mr T were fighting when I came out. Mr T had Hector with him.' I said, 'What did you do then?' He said, 'Mr T is too big so I had to run to my bedroom and went and got a chair. I hit Mr T with a chair.' I said, 'What happened to Mr T then, is he dead?' Amang said, 'No he just unconscious.' I asked Amang, 'How did youse end up killing him, why didn't you just take him to the hospital?' Amang said, 'Hector said there is nothing we can do we have to finish him.' I said, 'What did you say then?' Amang said, 'Up to you.' I said, 'How did you kill him then?' Amang, with one of his hands, motioned across his throat. I understood that to mean that they cut his throat. I said, 'Gee that's disgusting what you done, that's terrible, who cut his throat?' He said, 'Hector cut Mr T's throat but he was still breathing and Hector said, 'nothing we can do we have to finish it, you finish it' so I got the knife and then saw that Mr T's eyes were opened, I said to Mr T, 'I'm sorry' and I covered his eyes with hand and cut his throat with the knife.' I said, 'Why did you have to cut his throat in the second time?' He said, 'It's too late, he's dying anyway, to end his misery.'" 22 On 21 May 2003, the police therefore knew of Mr Almirol's whereabouts. They had his mobile telephone number. They had a warrant for his arrest, although his arrest would require extradition proceedings. However, they believed that it was important to corroborate the further account provided by Mrs Cora Davis (Stek T80). Legal advice was sought within the Police Service. Detective Sergeant Stek, in a voir dire before James J, said this: (Ex A, T3 (7/11/05)) "A. … Detective McKinnon made contact with the legal officer from the State Crime Command of the Police Service, Detective Sergeant Greg Berry. Q. That is the legal officer? A. Of the State Crime Command of the New South Wales Police, and the advice received back from the solicitor, Will Berry, Mr Berry, was that that would be a good idea for the investigation and as long as the following steps were undertaken. The first step would be to ensure that the witness Davis does not make any untrue representations, so that was to be made clear to that witness before the call was made. Secondly, that no lies were to be told to the accused during that particular phone call, so again the advice was to emphasise that to the witness. And thirdly, the advice was it would be beneficial and more of an assistance to the Court if the accused did most of the talking during that phone call." 23 On 23 May 2003, application was made to a designated member of the AAT for a warrant under s45 of the Telecommunications (Interception) Act 1979 (Cth). The application was supported by an affidavit sworn by Detective Senior Constable Murphy. It was Detective Murphy's first telecommunication interception warrant (T52). The affidavit in support repeated much of the information placed before the Bankstown Court when the first instance warrant had been sought, adding information from Mrs Corazon Davis' second statement. The application nominated "telecommunications service (02) 9643.8850", being the landline at 1 Maunder Street, Regents Park. It also incorporated, mistakenly, the following: (Ex 3) "30. I have reasonable grounds to believe that Alejandro Almirol is likely to use telecommunications services (02) 9649.9058." 24 This was plainly a mistake. The application and the affidavit paragraphs 6 and 34 made it clear that the warrant was sought in respect of the number (02) 9643.8850. Paragraph 34, for instance, was in these terms: (Ex 3) "34. The interception of telecommunications service number (02) 9643.8850 is considered necessary to obtain evidence and other information in relation to the commission of the class 1 offence of murder." 25 The affidavit also made it clear what the police had in mind. Paragraph 31 was as follows: (Ex 3) "31. Corazon Davis has agreed to assist police in this investigation by calling Almirol in the Philippines, using the service the subject of this application on Saturday the 24 May 2003. Corazon Davis anticipates that Almirol will be present at premises she intends to call. It is intended that she will speak to Almirol about Taueli's murder. If Almirol is not present at the place that Corazon Davis first calls, she anticipates that the occupants of that place will have a contact number of Almirol that she will then contact him on." 26 Upon the basis of this material the designated AAT member issued an Intercept Warrant in respect of (02) 9643.8850. 27 The following day the police went to the home of Mrs Davis. They were accompanied by an officer who spoke the Tagalog dialect. They provided Mrs Davis with written instructions which explained what they wanted her to do. The instructions were in these terms: "Police require you to be truthful and you are instructed not to lie to Alejandro Almirol. Police also would like Almirol to be the person doing most of the talking during these conversations. Therefore, you should ask questions of Almirol that require long answers. In order to start the conversation reassure Almirol that you are OK. The following questions are merely suggested to initiate conversation with Almirol but you may have other things to say that make Almirol feel comfortable. In order to lead into the conversation about this incident you might wish to say. · Is that you Amang? - (this is important) · How are you? · How have you been keeping? · How are your wife and family? · They haven't got you yet? · What are you doing at the moment - are you working? · I am OK are you OK? If Almirol asks why tell him that: · Hector told the police that he did not cut Mr Ts throat and it was you. I don't know what to believe now. What happened? · You told me that Hector cut him first then you finished him off - tell me what really happened? · Hector told me that after you hit Mr T on the head you both went outside and had a smoke and you took hours deciding what to do before you cut Mr T's throat. Is that right? Why? Tell me what you guys were talking about? · Why didn't you just take him to the hospital? · Why didn't you just take him home? · I need to know something - remember when we were at the farm - and you told me what happened. It's very important that you tell me, as I have to get it straight. Tell me what happened." 28 I gather that Mrs Davis was also provided with a phone card to cover the cost of the International call. She said that she was willing to make the call. Indeed she made a number of calls, all of which were intercepted. The sequence was described by James J in his judgment of 8 November 2006, as follows: (p4) "… The first conversation, commencing at about 2.04, was with her mother who lived in the Philippines, only a short distance from where the accused was living. Mrs Davis asked her mother to have the accused come to her mother's house. The second conversation which commenced at about 2.17, was with the accused and was mainly concerned with Mrs Davis obtaining the accused's telephone number in the Philippines, so that Mrs Davis could telephone him on his number. The third conversation, commencing at about 2.35 and lasting about half an hour, is the most important conversation for the purposes of this voir dire inquiry. There is a translation of this conversation in a folder of documents prepared by the Crown which was admitted into evidence in the voir dire inquiry. Another translation prepared by a translator retained by the defence was also admitted into evidence in this inquiry. A fourth conversation on the afternoon of 24 May 2003 commenced at about 3.18 and would appear to have lasted 12 to 15 minutes. It was virtually a continuation of the third conversation. On 27 May 2003 Mrs Davis in Australia had three further conversations with the accused in the Philippines, each of the conversations lasting about 5 minutes." 29 Against that background, let me turn to the objections to the admission of this evidence. Was the interception lawful? 30 The power to authorise the interception of a telephone call in 2003 was provided by s45 of the Telecommunications (Interception) Act 1979 (since repealed). That section was then in these terms: "45. Where an agency applies to an eligible Judge or nominated AAT member for a warrant in respect of a telecommunications service and the Judge or nominated AAT member is satisfied, on the basis of the information given to the Judge or nominated AAT member under this Part in connection with the application, that: (a) Division 3 has been complied with in relation to the application; (b) in the case of a telephone application -- because of urgent circumstances, it was necessary to make the application by telephone; (c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service: (d) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in connection with the investigation by the agency of a class 1 offence, or class 1 offences, in which the person is involved; and (e) having regard to: (i) the extent to which methods of investigating the offence or offences that do not involve so intercepting communications have been used by, or are available to, the agency; (ii) how much of the information referred to in paragraph (d) would be likely to be obtained by such methods; and (iv) how much the use of such methods would be likely to prejudice the investigation by the agency of the offence or offences, whether because of a delay in obtaining some or all of that information or for any other reason; some or all of that information cannot appropriately be obtained by such methods; the Judge or nominated AAT members may, in his or her discretion, issue a warrant authorising interceptions of communications made to or from the service." 31 Section 5 of the Act included the following definitions which are relevant: " telecommunications service means a service for carrying communications by means of guided or unguided electromagnetic energy or both, being a service the use of which enables communications to be carried over a telecommunications system operated by a carrier but not being a service for carrying communications solely by means of radio communication. telecommunications system means: (a) a telecommunications network that is within Australia; or (b) a telecommunications network that is partly within Australia, but only to the extent that the network is within Australia; and includes equipment, a line or other facility that is connected to such a network and is within Australia." 32 Counsel for Mr Almirol drew attention to the words in s45(c). The AAT member had to be satisfied, upon the basis of the material provided by Detective Senior Constable Murphy, that there were reasonable grounds for suspecting that a particular person, in this case Mr Almirol "is using or likely to use the service", that is, (02) 9643.8850, the Sydney landline to 1 Maunder Street, Regents Park. 33 Plainly there was no jurisdiction to obtain a warrant to intercept Mr Almirol's mobile telephone in the Philippines. The police therefore had directed their application to the Maunder Street telephone number. What, then, was the basis upon which it could be suggested that Mr Almirol was a person "using or likely to use" the telecommunication service? The word "use" is not defined. Counsel for Mr Almirol suggested it should be given its ordinary meaning (cf Barbaro v DPP (1999) 49 NSWLR 68, per O'Keefe J at 74). It was argued that before a person could be said to be "using or likely to use" the service something "proactive" on the part of Mr Almirol was required. That is, the police must demonstrate, according to counsel for Mr Almirol, that he can be expected to use that service, either by operating the handset at 1 Maunder Street, or dialling that number from the Philippines. 34 Here, according to counsel, Mr Almirol, being in the Philippines, would obviously not use the handset at 1 Maunder Street. Nor, it was argued, could it reasonably be inferred that he would dial that number from the Philippines. When he had lived at the house his landlord, Mr Rodney Davis, had insisted that he not use the landline. He had his own mobile phone which he used. After Mr and Mrs Davis left the house on 15 December for the Philippines, Mr Almirol had used the landline for a short interval between 15 December and 19 December when he left the country. Since returning to the Philippines, the only evidence of any communication between Mr Almirol and those within the household at 1 Maunder Street was in the statement of Mrs Davis of 22 May 2003, paragraph 13. In short, there were text messages between the accused and Mrs Davis, mobile to mobile, and one occasion (on 13 May 2003) where Mrs Davis had telephoned Mr Almirol by means of the landline. That material, it was submitted, provided no basis upon which the AAT member could be satisfied that there were reasonable grounds for believing that Mr Almirol was "a person using or likely to use" the service in respect of which the warrant was sought, namely (02) 9643.8850. 35 In support of this argument, counsel drew attention to an amendment to the Telecommunications (Interception) Act. The amendment followed a review by Mr Anthony S Blunn in August 2005. Mr Blunn's report included a section dealing with what were termed "B-Party Interceptions". In respect of that topic, Mr Blunn said this in his report: (Ex 5) "12.1 An area of concern raised by law enforcement agencies is the issue of so called 'B-Party' intercepts. 12.2 The issue arises where there is evidence that a person, other than a person suspected of involvement in the prescribed crime, the B-Party, is using a telecommunications service for communications which are believed to be relevant to the investigation. The B-Party may simply be a conduit for a relevant communication and may not even be aware of the use being made of them. 12.3 I am advised that presently the Interception Act is generally interpreted by the Agencies as not authorising the use of B-Party intercepts." 36 Mr Blunn's conclusion was as follows: (Ex 5) "12.10 Accordingly, I recommend that the Interception Act be amended to make it clear that B-Party services may be intercepted in limited and controlled circumstances." 37 The Attorney General, in the Second Reading Speech, adopted Mr Blunn's report, including his suggestion concerning the interception of calls with "an associate of the person of interest". Section 45 was repealed and replaced by s46. Section 46 broadened the former s45(d) by including s46(1)(d)(ii). The new s46(1)(d) was in these terms: "s46(1)(d) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in connection with the investigation by the agency of a serious offence, or serious offences, in which: (i) the particular person is involved; or (ii) another person is involved with whom the particular person is likely to communicate using the service; … " 38 The Telecommunications (Interception) Act is not beneficial legislation which ought to be given a liberal interpretation (NSW Crime Commission v Vuletic [2005] NSWSC 614, per Johnson J at para [45]). Approaching the issue of construction with that in mind, I find no assistance from Mr Blunn's report, or the amending legislation in the construction of s45(c). Mr Almirol was not an associate of a person of interest. He was the person of interest. What was contemplated was not a B-Party interception. It was the interception of a telephone conversation with the suspect. It is clear from the section, and especially s45(d), that useful information may be obtained through interception of a communication "to or from" the service. Here, the AAT member could be satisfied that Mr Almirol was a person "likely to use" the Maunder Street landline because the police, as disclosed in the affidavit of Mr Murphy, intended that Mrs Davis should telephone him in the Philippines. It is not necessary, in my view, that Mr Almirol should initiate the communication before it could be said that he was a person "likely to use the service", or that part of the service which is physically within Australia. 39 Here, the Crown, in the alternative, argued that it may also be reasonably inferred that Mr Almirol was likely to use the Maunder Street landline by himself telephoning that number from the Philippines. The inference, it was suggested, arose from a combination of facts. Mr Almirol knew the telephone number of 1 Maunder Street. Rodney and Cora Davis were amongst his best friends in Australia, apart from Mr Trocio, who had since betrayed him. He knew the police were contemplating extradition. It may be assumed that he was keenly interested in the progress of those proceedings. Mr and Mrs Davis were likely to be witnesses in the extradition proceedings, a fact that he would also have appreciated. It was therefore likely that he would telephone them at some point to obtain information. 40 The extradition proceedings would obviously take some time. The intrusion into the privacy of Mr and Mrs Davis, in intercepting their landline, would be substantial. However, in view of the conclusion I have reached as to the construction of s45(c) above, it is unnecessary to consider whether, upon the alternative basis, it would have been open to the AAT member, upon the information placed before her, to be satisfied in respect of the issues raised by s45(c). 41 Two other matters were raised in the context of the warrant, although they were also relevant to the discretion under s90(b) of the Evidence Act. The first was that Detective Murphy's affidavit in support of the interception warrant did not advert to the fact that a first instance warrant had been sought and obtained by the police on 8 May 2003. In respect of that issue, Detective Murphy said this: (T50) "Q. Why did you not disclose to the AAT member that you had sought and obtained and, indeed as at 23 May were in possession of, a first instance warrant to arrest the accused on the count of murder? A. The best way I can answer that is that it was an omission on my part. It was not intentional on my part, but it was a mere omission on my part." 42 He later added: (T52) "A. I agree that is an important factor, but in relation to the facts of the case, it doesn't change the facts of the case." 43 I accept Detective Murphy's evidence. There was no impropriety. The issue of the warrant was a relevant historical fact which should have been included in the application placed before the AAT member. However, its omission, in my view, does not vitiate the warrant or the discretion which was exercised (cf Flanagan, Howard and Grollo v Commissioner of the Australian Federal Police (1996) 134 ALR 495 at 553/7). 44 The second aspect related to the following paragraph in Detective Murphy's affidavit: (Ex 3) "33. Where possible traditional methods of investigation including examination of crime scenes, scientific examination, interviewing suspects and witnesses, use of intelligence and analysis of call charge records have been used and will continue to be used where appropriate. However, it is believed that the use of such other methods of investigations is unlikely to produce evidence of the same nature and quality as that obtained by means of interception. I believe that without the use of interception this investigation will be prejudiced." 45 Detective Murphy, in cross examination, acknowledged that in order to obtain a first instance warrant on 8 May 2003, the police had to have formed the belief that Mr Almirol was guilty of the offence. Having obtained the warrant, the police were in a position to seek his extradition. Indeed, he acknowledged their case for extradition had strengthened since 8 May 2003 by reason of the additional material provided by Mrs Cora Davis. 46 However, paragraph 33 of the application was true. Traditional methods were unlikely to produce evidence of "the same nature and quality" as the interception of the proposed conversation between Mrs Davis and Mr Almirol. This is not a matter, in my view, which affects the validity of the warrant or which discloses any impropriety. Was there an irregularity? 47 The second argument attacking the warrant related solely to the telephone conversations intercepted on 24 May 2003. The Crown brief included the statement of Mr Ruben Amores, who transcribed the audio tapes in June 2003. The tapes, according to Mr Amores' statement, referred to Warrant No. CO2134 issued on 16 May 2003. The warrant which had been issued on 24 May 2003 in respect of Mr Almirol was Warrant No. CO2137. The warrant identified by Mr Amores, therefore, was a different warrant, issued on a different day. It related to another person, not Mr Almirol. The designated member from the AAT was not the person who issued Mr Almirol's warrant. The mix-up was investigated by Sergeant Patrick Lynch, who is attached to the Telecommunications Interception Branch. Sergeant Lynch provided a statement in which he described what occurred: (Ex D) "12. The Telecommunications Interception system used by the New South Wales Police is capable of receiving intercepted calls from more than one service on a particular Product Delivery Line, although it is the practice of the Telecommunications Interception Branch to allocate one Product Delivery Line to an individual warrant. 13. On the basis of my examination of the interceptions system, it appears the telecommunications carrier, Telstra, has incorrectly delivered intercepted calls relating to service number 02 9643 8850 to the Product Delivery Line allocated to warrant CO2134-00. These calls should have been delivered by Telstra to the Product Delivery Line allocated to warrant CO2137-00. The problem appears to have been rectified by Telstra on the next business day being 26 May 2003. 14. A problem would arise from this situation when producing calls for evidentiary purposes. The process for transferring calls to Compact Disc involves the loading of intercepted calls by warrant number, as opposed to the targeted service number. The process would automatically have the warrant number and other information transferred directly onto the disk. In the case of intercepted calls for warrant CO2137-OO which were inadvertently delivered to the Product Delivery Line for warrant CO2134-OO, the Compact Disc would show details for warrant CO2134-OO." 48 It was argued that Warrant CO2137 could not be used to justify the interception of the calls and consequently was not available to underpin the reception of that evidence. 49 The Crown asserted that plainly there was a valid warrant. It was simply an administrative error in the mechanics of separating the communications which had been received which related to two valid warrants. There was, according to the Crown, no irregularity and no inhibition upon the reception of the evidence. Alternatively, if there was an irregularity, it was "other than substantial" and came within the following provision of the Act: "75(1) Where a communication has been intercepted in contravention of subsection 7(1) but purportedly under a warrant (other than a warrant under section 11A, 11B or 11C), a person may give information obtained by the interception in evidence in an exempt proceeding, being a proceeding in a court or before a tribunal, body, authority or person, if the court, tribunal, body, authority or person, as the case may be, is satisfied that: (a) but for an irregularity, the interception would not have constituted a contravention of subsection 7(1); and (b) in all the circumstances, the irregularity should be disregarded. (2) A reference in subsection (1) to an irregularity is a reference to a defect or irregularity (other than a substantial defect or irregularity): (a) in, or in connection with the issue of, a document purporting to be a warrant; or (b) in connection with the execution of a warrant, or the purported execution of a document purporting to be a warrant." 50 I was referred to the recent decision by Johnson J in NSW Crime Commission v Vuletic (supra), where his Honour reviewed the authorities on s75 of the Act. I accept the Crown's argument that, if there was an irregularity or defect, it was "other than substantial" and presents no difficulty in respect of the lawfulness of the interception which took place. The Evidence Act 1995. 51 Moving to the third argument, counsel submitted that the evidence relating to the telephone conversations made pursuant to the warrant should be rejected, either under the discretion provided by s90 of the Evidence Act (which is concerned with admissions), or under s138 of the Act (which is concerned with the exclusion of improperly or illegally obtained evidence). 52 It is convenient to deal with s138 first. There was no suggestion that the police had contravened any law. It was, however, suggested that the evidence had been improperly obtained. Counsel for Mr Almirol pointed to a number of circumstances. The police already had a warrant for the arrest of Mr Almirol. They were therefore not merely investigating a suspect. They had already formed the view that there was evidence that he had committed the offence of murder and, upon that basis, had obtained the warrant (Van der Meer (1998) 35 A Crim R 232, per Mason CJ at 239/40). The police knew that if they (through an officer who spoke Tagalog) attempted to speak to Mr Almirol by telephone or otherwise, they would be obliged to administer a caution. Yet the police resorted to the device of having Mrs Cora Davis, a friend of Mr Almirol, speak to him. It may be inferred that they knew that the use of Mrs Davis, as an agent for the police, had the advantage that no caution would be appropriate or administered. 53 I accept that the circumstances of the call to Mr Almirol were as outlined by his counsel. However the police said, and I also accept, that the purpose of using Mrs Davis to speak to Mr Almirol in the intercepted telephone calls was to obtain corroboration of her account to the police on 21 May 2003, and not to avoid administering a caution (T80). 54 There was, in my view, no improper conduct on the part of the police. It is therefore unnecessary to balance the matters identified in s138 in order to determine whether, under that section, the evidence should be admitted. 55 I turn, then, to the discretion which arises under s90. That section is in these 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." 56 Counsel drew attention to s84 of the Evidence Act which provides that an admission is not admissible unless the court is satisfied that it was not influenced by "violent , oppressive, inhuman or degrading conduct" or "a threat of conduct of that kind". Here, whilst there was no basis for excluding the intercepted conversations under s84, the discretion provided by s90, it was submitted, was much broader. Fairness included whether, in the circumstances, the admissions said to have been made were "an expression of the independent will" of the person who is said to have made them (Swaffield and Pavic v The Queen (1998) 192 CLR 159, per Brennan CJ at 167ff; Collins v The Queen (1980) 31 ALR 257 at 307). The Crown acknowledged the breadth of the discretion, drawing attention to R v EM [2003] NSWCCA 347 and EM v Regina [2006] NSWCCA 336. 57 As I have mentioned, the exclusion of the evidence under the discretion provided by s90 was argued before James J. His Honour declined to exclude the evidence under that section. Whilst counsel for Mr Almirol relied upon additional material and additional arguments, it is useful at this point, to advert to the matters which persuaded James J that the evidence should not be excluded. His Honour referred at some length to the High Court judgment in Swaffield and Pavic v The Queen (supra). Swaffield was an appeal from Queensland and Pavic from Victoria. Each appeal involved the discretion to exclude evidence of admissions at common law. His Honour noted that there was no material difference between the common law and s90 of the Evidence Act (R v EM (supra) at para [107]). James J remarked that the facts in the Pavic appeal were somewhat closer to the facts in the present case than Swaffield. The facts in Pavic were conveniently summarised by Brennan CJ as follows: (at p166) "5. Police were investigating the murder of a man named Andrew John Astbury, whose body was found in the Yarra River handcuffed to an electric motor casing. The police interviewed Pavic on 3 January 1995 at the homicide squad office at St Kilda Road in Melbourne. At the beginning of the interview, Pavic was given the usual warning and he was advised that he had a right to communicate with his solicitor. He contacted a solicitor. When questioned by the police, acting on his solicitor's advice, he made no comment on the questions put to him. During the questioning, the police informed Pavic that he was believed to have committed the offence of murder. Nevertheless, at the end of the interview, Pavic was allowed to leave the office. 6. On 4 January, the police recovered from the Yarra River a garbage bag containing blood-stained towels and clothing. On 9 January they obtained a statement from Lewis James Clancy in which he identified some of the clothing as clothes which he had left in Pavic's vehicle some time before. Pavic had told Clancy that he had lost the clothes and insisted that he accept $50 for them. This satisfied the police that they had sufficient evidence to arrest Pavic and charge him with murder. After his interview with the police, Clancy agreed to being fitted with a microphone to record a conversation with Pavic. At Pavic's trial, Clancy gave evidence that he agreed to participate in the police investigation by being fitted with a microphone because he wanted to dispel what he perceived to be the police belief that he was implicated in the murder in some way. He conveyed that belief to Pavic, as the police contemplated that he would, although the fact was that at that time Clancy was not a suspect. In the conversation with Pavic which Clancy recorded, Clancy told Pavic that the police had recovered his clothing stained with blood. In the ensuring conversation, Pavic made a number of inculpatory statements." 58 Toohey, Gaudron and Gummow JJ, forming part of the majority, referred to the Canadian decisions of R v Hebert (1990) 2 SCR 151 and R v Broyles (1991) 3 SCR 595. It was recognised that the Canadian cases might be affected by the Canadian charter of rights and freedoms. The authorities were, nonetheless, regarded as "instructive". James J drew attention to the following discussion of these cases: (p7) "87. In R v Broyles the Supreme Court of Canada was constituted by La Forest, L'Heureux-Dubé, Sppinka, Gonthier, Cory, McLachlin and Iacobucci JJ. The judgment of the Court was delivered by Iacobucci J. The accused was charged with murder; the evidence against him was largely circumstantial but it included a statement which the accused made to a friend after his arrest and after he had been cautioned that he was not required to say anything. The friend visited the accused in prison at the request of the police. The friend wore a recording device. The friend questioned the accused about the killing of the deceased. 88. The evidence of the statements made to the friend was excluded pursuant to a provision of the Charter. The Court identified two questions which were necessary for decision but which did not have to be answered in Hebert . The first was whether the friend was an agent of the State. The second was whether the accused's statement had been elicited by the friend. The Court held that the friend was an agent of the State during the conversation. The meeting was set up and facilitated by the police and, without the intervention of the authorities, there would have been no conversation. The Court held further that the statement had been elicited because parts of the conversation were in the nature of an interrogation, not just parts of a conversation which flowed naturally. It concluded that the admission of the evidence would render the trial unfair." 59 His Honour then extracted the following passage where Toohey, Gaudron and Gummow JJ made the following comments in the context of Pavic's case: (p8) "100. No caution was administered by Clancy, which is hardly surprising in the circumstances. The circumstances are close to those in Broyles, the Canadian decision . As in Broyles , the person with whom Pavic spoke must be regarded as an agent of the State. The meeting was not directly set up by the police but Clancy spoke with Pavic at the request of the police who equipped him with a recording device. 101. If Broyles is applied, the next question is whether the admissions by Pavic were elicited by Clancy or were made in the course of a conversation. Put another way, was there an interrogation by Clancy? 102. Pavic argued that he was misled by Clancy into making the admissions he did. The trial judge approached the exercise of his discretion on that footing and said: 'Whilst the role of the accused in the killing was volunteered by him to Clancy in a somewhat limited fashion, it cannot, in my view, be said to be the result of, or inextricably linked to, the expressed fear of Clancy that he may be charged with an offence.' 103. In all the circumstances there is no sufficient reason to interfere with the trial judge's refusal to exclude the evidence of the conversation. This appeal should also be dismissed." 60 Applying these principles James J found, as the Crown conceded before me, that Mrs Davis should be regarded as an agent of the State. The police had asked her to make the call. They gave her instructions. I would add that they paid for the call by providing her with a phone card. But for their intervention, the call would not have been made. 61 Further, James J, whilst acknowledging that it was not always easy to distinguish between "interrogation" and a "free flowing conversation", found that the conversation should be characterised as "interrogation". On a number of issues Mrs Davis was persistent, returning repeatedly to the same issue. I agree with that conclusion. 62 James J also acknowledged that there had been some misrepresentation on the part of Mrs Davis. I would add that certainly she had omitted to disclose the circumstances which caused her to make the call. She told Mr Almirol that she was seeking clarification of the account he had given on the farm at Christmas, whereas in fact she was quite clear in her own mind as to what he had said. 63 Against that background, and these findings, James J dealt with the discretion under s90. The court was enjoined to look at all the circumstances in determining whether there is unfairness to the accused in admitting the evidence. His Honour was not persuaded that he should exercise his discretion to exclude the evidence, having regard to the following circumstances which I summarise (pp 10-12). · First, there had been no refusal by Mr Almirol to make a statement to the police. His case, in this respect, differed from both Swaffield and Pavic. It also differed from both the Canadian cases. · Secondly, Mr Almirol had left Australia on 19 December 2002 for the Philippines, where he remained. There was no indication that he intended to return to Australia. By his departure, he had deprived the police of any opportunity of questioning him in Australia. · Thirdly, the accused had spoken in detail, and without apparent reluctance, to Mrs Davis in the Philippines. The questions in the intercepted conversations were "to a large extent, although not entirely" concerned with "seeking confirmation and clarification or amplification of what the accused had already told her". · Fourthly, the reliability of the admissions provided by Mr Almirol to Mrs Davis were not likely to have been affected adversely by what Mrs Davis said to him, nor the fact that she to some extent interrogated him. · Fifthly, although Mrs Davis was provided with instructions by the police as to the questions she may ask, they were contained on a single sheet of paper. They "fell far short" of a comprehensive script. It was not a case of "an intermediary, in effect, interviewing a suspect by asking questions drafted by the police". · Sixthly, although there was some misrepresentation by Mrs Davis about the purpose of her call -- what were termed "half truths" by his Honour -- the same is true of virtually every conversation where a person has been fitted with a listening device. His Honour added this: (p12) "In the present case no representation was made that what was said in the conversations would not be recorded or that what was said in the conversations would not be used in evidence. Although the admissions would not have been made in the absence of what Mrs Davis said, I do not consider that the admissions made by the accused were otherwise caused by what Mrs Davis said to him." · Seventhly, his Honour recognised that some prejudice may attack to particular answers within the recorded conversation. However, he considered that the accused could be protected against such prejudice by the giving of directions and/or by editing the interview. 64 As mentioned, the material placed before me is not the same as that before James J. I will now deal with the additional material. The additional material. 65 Counsel pointed to two matters additional to those placed before James J, which were relevant to the discretion under s90. They were: · First, the status of Mr Almirol as an accused, not simply a suspect. · Secondly, the "special relationship" between Mr Almirol and Mrs Cora Davis. 66 Dealing with the first matter, counsel drew attention to the phases of a criminal investigation as described by Mason CJ in Van der Meer (supra) where the former Chief Justice said this: (at 239/40) "In reaching the conclusion that there was no impropriety in the interrogation of the applicants the trial judge overlooked the well-established constraints that apply to the interrogation of suspects. The common law balances (a) the need to allow the police freedom of action in the investigation of crime in order to ascertain the wrongdoer and (b) the need to ensure that a suspect is fairly treated and his right to silence protected. This balance is achieved by permitting the police to conduct a general inquiry into an unsolved crime until the stage is reached when the accusatory stage begins. It is notoriously difficult to define the point at which that stage begins because there is an infinite variety of fact situations. The Judges' Rules endeavoured to meet this problem by imposing restrictions on police interrogation by reference to the occurrence of three events in the course of an investigation. They were: (1) when a police officer made up his mind to charge the suspect with a crime (r 2); (2) when a suspect was taken into custody (r 3); and (3) when a suspect was formally charged (r 8). The occurrence of any one of these events may be taken as marking the beginning of the accusatory stage when the giving of a caution is required: see G L The, 'An Examination of the Judges' Rules in Australia' (1972) 46 ALJ 489 at 493. And in one other situation at least the obligation to give a caution will arise earlier. For example, when the police have sufficient evidence in their possession to justify a charge, even if they have not decided to charge the suspect: see Devlin, p29." 67 Here, James J referred to Mr Almirol as a "suspect" (p 5). However, the investigation had passed beyond the point where he was simply a suspect. An information had been filed and a warrant issued on 8 May 2003, that is six weeks before the intercepted telephone calls. Accordingly, were Mr Almirol questioned by the police, a caution would be required. It was submitted, in these circumstances, that there was real unfairness in the police using an agent to question the accused, and thereby avoiding a caution. 68 For a number of reasons, however, I am not persuaded that anything turns upon the fact that James J referred to Mr Almirol as a suspect, as opposed to someone that had been charged. First, James J was certainly aware of the accusations of Prehector Trocio against Mr Almirol, which had been made in April 2003, and which to some degree were supported by his wife. Whether charged or not Mr Almirol, if interviewed by the police at any time thereafter, would require a caution. Secondly, although unquestionably there were circumstances known to the police which created suspicion concerning Mr Almirol and his possible role in the death of the deceased (including his sudden flight to the Philippines), the charges necessarily relied upon the accusations of Prehector Trocio. It may be inferred that, as at 23 May 2003, when the police sought an interception warrant, they recognised that the case against Mr Almirol had two difficulties. The first was that Prehector Trocio, his accuser, was an accomplice. His evidence may be unreliable (cf s165(1)(d) of the Evidence Act 1995). Secondly, and in any event, although Prehector Trocio's version had been the fundamental basis upon which the police might reasonably have formed the view that the accused was guilty of murder (justifying the first instance warrant), that version had since been undermined by information furnished by Mrs Cora Davis. Her account, based upon conversations with both Prehector Trocio and Mr Almirol on 16 December 2002, and subsequent face to face conversations with Mr Almirol at the farm, suggested that Mr Trocio's early version was indeed unreliable. According to her, he had acknowledged that both were involved. More than that, Mr Almirol described a circumstance which, if accepted as possible, raised issues concerning self defence. Mr Almirol asserted that he went to the rescue of his friend, Prehector Trocio, who was then under attack by a much larger man who was armed with a knife. Although, according to Mrs Davis, he acknowledged having ultimately cut his throat upon the urging of Prehector Trocio, he said he did so in circumstances where he believed that the victim was dying and to put him out of his misery. 69 That was a strikingly different and more problematical account than Hector Trocio's version which the police had relied upon in the warrant application. It could not be ignored. It is understandable, in these circumstances, that the police should seek confirmation of Mrs Davis' account. It was impractical simply to await the extradition, assuming an order could be obtained. Extradition could be months away, as events proved. 70 Moving to the second additional matter, the relationship between Mrs Davis and the accused, attention was drawn to the evidence given by Mrs Davis on the voir dire. She said this, responding to a number of leading questions: (T86) "Q. Would it be fair, in part, that you wanted an explanation from him as to what that man, Mr T, was doing there in the first place, drinking there - A. Yes. Q. It was not just the terrible fact that this man died, but how did he let this to happen in the first place? How did he let this drinking session occur in your place, that is what you wanted to know, is that fair? A. Yes. Q. He owed you a debt of gratitude? More so than, say, in Australian society, deeper than that, because of your connection and your heritage, he was responsible to you for what had occasioned in that house, it is as simple as that? A. Yes. Q. He owed you an explanation, would that be fair to say? A. Yes. Q. And, indeed, it would be more than rude if he didn't provide you with an explanation? A. Yes." 71 Mrs Davis agreed that, the murder having occurred in her house when Mr Almirol was in occupation, created on his part towards her "a deep sense of debt of gratitude" and of "shame" (T87/88; Ex 4). Counsel then asked the following questions, without objection: (T88) "Q. I know that you cannot answer for another person, but would this be a fair proposition - and it may be objected to - if I owed you a debt of gratitude and brought shame to you and you asked me; well, you tell me exactly what happened, I would be compelled to give you those answers - to give you that explanation, would that be fair to say? A. Yes." 72 Were a person in Australia generously to allow another to occupy their house whilst they were away, that person would no doubt owe a debt of gratitude. If things went wrong, the person in occupation would no doubt feel they owed the owner some sort of explanation. I rather doubt that the situation is remarkably different in the Philippines. 73 However that may be, I do not accept that, in any sense, even making due allowances for differences in culture, that the statements by Mr Almirol in response to Mrs Davis during the intercepted conversations were involuntary (cf Swaffield and Pavic (supra) at 169/170). Mrs Davis was known to Mr Almirol. She was not a "person in authority". She was a friend who had extended a kindness to him. Things had gone badly wrong, causing Mrs Davis some real inconvenience. Nonetheless, it could not be said that Mr Almirol was overborne. He responded to her questions. He told her what he chose to disclose. There were, for instance, differences in the account he gave in their face to face meeting at Christmas and the conversations in May 2003. 74 It often happens that the person who makes the telephone call, or is fitted with a listening device, is a friend and has the trust of the person to whom he or she is speaking. It is that trust which makes the evidence highly reliable. It will be noticed that the person who was used to obtain the evidence in Pavic was Clancy, a friend of Pavic. In that context, Brennan CJ said this in Swaffield and Pavic (supra): (at 185/6) "In Pavic's case, the confessional statements were made to Clancy whom Pavic knew as a friend. Clancy was not a police officer or other person in authority over Pavic. There was no impropriety in the police obtaining Clancy's consent to the recording by Clancy of his intended conversation with Pavic. A serious crime had been committed and the means adopted for its solution and for the securing of evidence against the prime suspect were quite legitimate. The investigation of crime is not a game governed by a sportsman's code of fair play ( Bunnings v Cross (1978) 141 CLR 54 at 74, per Stephen and Aickin JJ). Fairness to those suspected of crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation or the giving of a sufficient opportunity 'to invent plausible falsehoods' ( R v Lee (1950) 82 CLR 133 at 152)." 75 Sperling J, in R v Cassar (No 27)[1999] NSWSC 650, referred to the following passage from a judgment of Dowsett J in O'Neill (1995) 81 A Crim R 458, where the following was said: (at 553) "It cannot be said that because Lally was acting covertly on behalf of the police, there was inequality in the relationship between her and the appellant which might suggest to the appellant that she was under an obligation to speak. No question of involuntariness or unfairness arose from the fact that the appellant was not warned. The police are not obliged to be absolutely frank in investigating crime. Indeed, the law providing for the use of listening devices is statutory authority to the contrary. Although we might all prefer that friendship not be exploited for ulterior purposes, the public interest in detecting and punishing crime outweighs social nicety. " (emphasis added) 76 Turning, then, to the discretion under s90, I adopt the reasons of James J and determine that, having regard to all the circumstances, including the additional material placed before me, the Court should not refuse to admit the evidence upon the basis that it would be unfair to the accused to use the evidence, subject to the comments of James J which I repeat: (p12, para [7) "... It may be that there would be some prejudice to the accused through the admission of evidence of things said by Trocio about what had happened on 15 December 2002. However, I consider that the accused can be protected against any such prejudice by the giving of directions and/or by the editing of the interview." ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.