Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v TD [2013] NSWCCA 337 Hearing dates: 11 December 2013 Decision date: 20 December 2013 Before: Hoeben CJ at CL at [1]; Simpson J at [2]; Hall J at [50] Decision: (i) The Director's appeal is upheld; (ii) The ruling of the District Court that evidence of the conversations between UCO535 and the respondent not be admitted is vacated. Catchwords: CRIMINAL LAW - solicit to murder EVIDENCE - Crown appeal - Criminal Appeal Act 1912, 5F(3A) - controlled operation - Law Enforcement (Controlled Operations) Act 1997 - Authority to conduct controlled operation - nature of controlled activity - undercover police operative - communications with accused recorded pursuant to Authority - whether evidence unlawfully obtained - Evidence Act 1995, s 138 - whether Authority validly granted - whether activity within term of Authority - Code of conduct - evidence not unlawfully obtained - ruling excluding evidence vacated Legislation Cited: Criminal Appeal Act 1912 Criminal Procedure Act 1986 Evidence Act 1995 Law Enforcement (Controlled Operations) Act 1997 Law Enforcement (Controlled Operations) Regulation 2007 Law Enforcement (Controlled Operations) Regulation 2012 Cases Cited: Gedeon v The Commissioner of the NSW Crime Commission [2008] HCA 43; 236 CLR 120 Ridgeway v The Queen [1995] HCA 66; 184 CLR 19 Category: Principal judgment Parties: Regina (Appellant) TD (Respondent) Representation: Counsel: V Lydiard (Appellant) M Kumar (Commissioner of Police) C Davenport SC/S Bouveng (Respondent) Solicitors: S Kavanagh - Solicitor for Public Prosecutions (Appellant) I V Knight - Crown Solicitor (Commissioner of Police) Cater & Blumer (Respondent) File Number(s): 2012/160490 Publication restriction: Pursuant to s 34(2)(b) of the Law Enforcement and National Security (Assumed Identities) Act 2010, that there be no publication or other disclosure of the assumed identity of the undercover operative or of any document or evidence or other information that identifies, or might facilitate the identification of, the assumed identity of the undercover operative, except as is necessary for the proper condcut of the proceedings Non publication of any information or material that may lead to the identification of any children (s 15A Children (Criminal Proceedings) Act 1987) Decision under appeal Date of Decision: 2013-09-05 00:00:00 Before: Jeffreys DCJ File Number(s): 2012/160490 Judgment 1HOEBEN CJ at CL: I agree with Simpson J. 2SIMPSON J: This is an appeal by the Director of Public Prosecutions ("the Director") against a ruling by Jeffreys DCJ on 5 September 2013, refusing to admit certain evidence proposed to be led by the Crown in a criminal trial. Such an appeal is permitted where the ruling "eliminates or substantially weakens the prosecution's case": Criminal Appeal Act 1912, s 5F(3A). There is no issue in this case that the ruling in question is of that character. This Court accordingly has jurisdiction to hear and determine the appeal. 3The issues raised on the appeal concern an Authority issued under the Law Enforcement (Controlled Operations) Act 1997 ("the LE(CO) Act"). The Law Enforcement (Controlled Operations) Act 1997 4The long title of the LE(CO) Act is: "An Act with respect to the authorisation, conduct and monitoring of certain operations conducted by law enforcement agencies; and for other purposes." 5The LE(CO) Act was introduced into the NSW Parliament following the decision of the High Court in Ridgeway v The Queen [1995] HCA 66; 184 CLR 19. In Ridgeway, the accused was charged with and convicted of an offence against Commonwealth law of possession of a prohibited import (heroin). The importation of the heroin had been facilitated by Malaysian Police with the active cooperation of the Australian Federal Police, in what was termed a "controlled operation". There was no statutory authorisation for such an operation, which involved Australian law enforcement authorities committing, or participating in, the criminal offence of importation of a prohibited narcotic. By a 6-1 majority, the High Court held that evidence of Ridgeway's possession of the heroin was inadmissible. Five members of the High Court reached this conclusion on the basis that the evidence was inadmissible on grounds of public policy; Gaudron J, on the ground that, by illegally importing the heroin, AFP officers had incited or participated in the commission of the offence with which the accused was charged, rendering the proceedings against him an abuse of process. 6The LE(CO) Act was devised as a means of authorising operations such as the "controlled operation" in which Ridgeway was unwittingly involved. It was recognised that a clear line had to be drawn between authorisation of an operation that, on the one hand, might involve the commission of what would otherwise be criminal offences by law enforcement officers (or civilians acting in tandem with law enforcement officers) for the purpose of obtaining evidence of offences that would, at least probably, have been committed in any event; and, on the other hand, inciting or inducing the commission of an offence or offences that would not, absent the incitement or inducement, have been committed. With that balance in mind, the NSW Parliament enacted the LE(CO) Act. 7The LE(CO) Act identifies five separate law enforcement agencies to which it applies, and nominates their various heads as, for the purposes of the LE(CO) Act, Chief Executive Officers. The NSW Police Force is one such law enforcement agency. The LE(CO) Act permits those CEOs to issue Authorities to conduct controlled operations. The process is tightly regulated. 8By s 5 of the LE(CO) Act, a law enforcement officer of a nominated law enforcement agency (including NSW Police Force) may apply to the CEO of that agency for an Authority to conduct a "controlled operation". A "controlled operation" is defined as meaning an operation conducted for the purpose of: "(a) obtaining evidence of criminal activity or corrupt conduct, or (b) arresting any person involved in criminal activity or corrupt conduct, or (c) frustrating criminal activity or corrupt conduct, or (d) carrying out an activity that is reasonably necessary to facilitate the achievement of any purpose referred to in paragraph (a), (b) or (c), being an operation that involves, or may involve, a controlled activity." "Controlled activity" is defined as: "... an activity that, but for section 16, would be unlawful." 9By s 6 of the LE(CO) Act, the CEO of the agency may refuse the application, or may grant the Authority, either unconditionally or subject to conditions. By s 6(2) an Authority may not be granted unless a code of conduct is prescribed by the regulations in relation to the agency in question. 10Further, the CEO of the agency is required, by s 6(3), to be satisfied as to certain specified matters, and, by sub-s (4), to have regard to certain specified matters before granting an Authority. 11Section 7 (particularly s 7(1)) is an important provision, and has particular relevance to the present appeal. Section 7(1) is in the following terms: "(1) An authority to conduct a controlled operation must not be granted in relation to a proposed operation that involves any participant in the operation: (a) inducing or encouraging another person to engage in criminal activity or corrupt conduct of a kind that the other person could not reasonably be expected to engage in unless so induced or encouraged, or (b) engaging in conduct that is likely to seriously endanger the health or safety of that or any other participant, or any other person, or to result in serious loss or damage to property, or (c) engaging in conduct that involves the commission of a sexual offence against any person." Section 7(1)(a) gives effect to recognition of the distinction mentioned above - the goal being to obtain evidence of offences that would, even without the controlled operation, have been committed, but to avoid conduct that would itself provoke the commission of an offence or offences that would not otherwise have been considered. 12Section 8 specifies the form which an Authority must take, and requires the inclusion of certain specified information. Of particular relevance to the present appeal, sub-s (2) of s 8 requires that the Authority must identify the nature of the controlled activities in which the proposed "law enforcement participants" may engage. A "law enforcement participant" in an authorised operation is a participant in the operation who is a law enforcement officer (s 3). "Law enforcement officers" include police officers (s 3). 13By s 13 the effect of an Authority is to authorise each law enforcement participant to engage in the identified controlled activities; by s 13A procedural defects do not invalidate any application for or grant of an Authority, other than those that affect the substance of the application. 14Section 16 is in the following terms: "Despite any other Act or law, an activity that is engaged in by a participant in an authorised operation in the course of, and for the purposes of, the operation is not unlawful, and does not constitute an offence or corrupt conduct, so long as it is authorised by, and is engaged in in accordance with, the authority for the operation." (italics added) The italicised words are important. Section 16 affords protection to participants in authorised criminal activities, but only to the extent of the Authority. Departures from the authorised activity do not attract the protection of s 16. By s 3 an "authorised operation" is: "... a controlled operation for which an authority is in force ..." 15At the relevant time the Law Enforcement (Controlled Operations) Regulation 2007 (now replaced by the Law Enforcement (Controlled Operations) Regulation 2012) contained, in Sch 2, a code of conduct applicable (by cl 10 of the Regulation), to all law enforcement agencies, including the NSW Police Force. Relevantly, cl 5 of the code of conduct provided: "Each law enforcement participant in an authorised operation must take all reasonable steps to ensure that the conduct of the operation does not involve any participant in the operation: (a) inducing or encouraging another person to engage in criminal activity or corrupt conduct of a kind that the other person could not reasonably be expected to engage in unless so induced or encouraged, or (b) engaging in conduct that is likely to seriously endanger the health or safety of that or any other participant, or any other person, or to result in serious loss or damage to property, or (c) engaging in conduct that involves the commission of a sexual offence against any person, or (d) engaging in any activity that, not being a controlled activity, is unlawful." It will be seen that, to a substantial extent, cl 5 of the code of conduct replicates s 7(1) of LE(CO) Act, and reinforces the distinction between operations designed to produce evidence of criminal activity, and those which go beyond evidence gathering and themselves provoke the commission of criminal offences. Background 16In early May 2012 it came to the attention of Detective Senior Constable Daniel Peverill of the NSW Police Force that the respondent had been making inquiries about having her former partner (BV) murdered. BV is the father of the respondent's young son. On 19 May 2012 Detective Senior Constable Peverill applied, pursuant to s 5 of the LE(CO) Act, for an Authority to conduct a controlled operation. (No issue arises concerning compliance with the requirements of s 5.) On the same day Assistant Commissioner Michael Fuller, with appropriate delegation, granted the application. Relevantly, the Authority contained the following: "3. Having considered the Application, and any additional information furnished under s 5(3) of the Act, I am satisfied as to the following: (a) there are reasonable grounds for suspecting that criminal activity or corrupt conduct has been, is being or is about to be conducted in relation to matters within the administrative responsibility of the Agency, ... 5. I am also satisfied as to the following: (a) no participant will induce or encourage another person to engage in criminal activity or corrupt conduct of a kind that the other person could not reasonably be expected to engage in unless so induced or encouraged, ... 6. Pursuant to sections 6 and 8 of the Act, I authorise the following: (a) Detective Senior Constable Daniel PEVERILL law enforcement officer within the meaning of the Act ... may conduct the controlled operation in accordance with the plan of the proposed operation accompanying the Application. *(b) A law enforcement officer identified in column 1 of the Table below (an authorised law enforcement participant)* may engage in controlled activities of the nature specified opposite that participant in column 2 of the Table for the purposes of the controlled operation: Name of participant Nature of controlled activities UCO535 conspiring, agreeing, soliciting, encouraging, persuading, or endeavouring to persuade, or proposing to any person to commit the murder of [BV] by [TD], and any other person associated in the commission of the said criminal activity and includes entering and remaining on inclosed lands where necessary." UCO458 "UCO535" and "UCO458" were both undercover police officers. 17At 12.15pm on 20 May 2012, the law enforcement officer designated as "UCO535", after being briefed by Detective Senior Constable Peverill, drove to the home of the respondent in Mathoura, NSW. There he met the respondent and had a conversation with her. Part of the conversation took place in a motor vehicle en route to and at a different location. The conversation was electronically recorded and monitored by Detective Senior Constable Marc Azzi. 18Later that day (1.42pm) UCO535 attended a further briefing with Detective Senior Constable Peverill. At 2.50pm he met the respondent again and had a further conversation with her. This conversation was also electronically recorded, and was again monitored by Detective Azzi. During the course of this conversation, the respondent handed to UCO535 three sheets of paper. One was a coloured photocopy of a photograph of a male, who the respondent identified as BV. Another was a photocopy of a photograph of two cars parked in a car park. A male and female were depicted standing next to one of the cars. The respondent wrote on this document noting certain location and streets, and a residence in a Melbourne suburb. The third page was a photocopy of a sports boat club newsletter, on which the respondent wrote an address that she told UCO535 was that of BV. She wrote a date of birth that she said was BV's date of birth, and a mobile telephone number that she said was that of BV, and a number of other names. 19The recordings of the two conversations were transcribed. The recordings constitute the evidence that was ruled by Judge Jeffreys to be inadmissible. 20Having regard to the basis on which the evidence was ruled inadmissible, it is necessary to set out, in some detail, the contents of the conversations. The extracts from the conversations are taken from transcripts which were in evidence, the accuracy of which was not disputed. 21At the first meeting of UCO535 and the respondent, at the respondent's home, the respondent's young son was also present. UCO535 ascertained the name of the respondent, and introduced himself under an assumed name. The respondent suggested that they might go for a walk. He ascertained that the respondent knew what he was there for, at which she expressed some concern. He then told her: "The boys have sent me down, so they've sent me down, so, to have a chat with you." 22There followed some apparently innocuous conversation, apparently about the respondent's home. It appears that they then drove off, at the direction of the respondent. The respondent told UCO535 that BV had used amphetamines, he had shown pornography in the presence of children, and had abused and sexually abused her son. UCO535 then asked: "Do you need something, or what can I do for you?" The respondent replied: "I don't know, I actually don't know what you can do, like, I ultimately, this, you know, the way I feel ultimately I feel like the guy needs to have an overdose and disappear ... but I also am really aware that the finger will point to me straight away." A little later the respondent said: "So, I don't, I'd love the bloke to disappear and leave this little boy alone. Umm, Leave us alone." UCO535 then said: "That's, that's why I'm here. If you need something done I need you to tell me what you need done. If you, what you need done." At an early stage, the respondent said: "... How, I suppose I don't really need to know, but how, how do, like you knock him off, how do you, how do you get over it not, like I don't want to know, I don't want to know how it happens or when it happens or, but how do you feel at ease with any of it?" 23On numerous occasions UCO535 placed the ball squarely in the respondent's court to identify what she was seeking to have done to BV. He raised the issue of remuneration and said that that would depend upon what the respondent wanted done. The respondent said that money was a problem and there was some discussion about "price", with UCO535 again saying that price was dependent upon what the respondent wanted done. The respondent said: "I can imagine that it's a high price for what I have just said to 'do him in', that is a high price, I can imagine." The following exchange then occurred: "UCO535: It depends, it depends. See, your words, 'do him in', could be different things in my world. Respondent: I, overdosing, meaning death ... is that what 'doing in' means? I don't know. UCO535: It depends, you know what I mean. Doing in, doing him in could mean a few things, you know what I mean." 24The respondent then raised the prospect of "scaring" BV, in a way that would prevent him from having anything to do with her son until her son was of an age when he might, of his own initiative, seek to find his father. UCO535 asked if she had spoken to BV. The respondent said that this was not possible because of BV's behaviour. The following exchange then occurred: "UCO535: You need to spell it out to me what you want done, and that way I can then say, All right, this is how much it's going to cost you. And I'm not going to tell you how I'm actually going to do it, but this is what I need from you --- for me to get the job done. Respondent: OK. UCO535: You know what I mean? Things like, for example, that's what I'm saying, you need to tell me what you need done. Respondent: I need him to back off, I need him to leave it alone ... Yeah. Is that enough? UCO535: What do you what done but? Respondent: I know. UCO535: What do you want done? Respondent: I don't know. How do you, how do you make him back off? UCO535: Like, you've already told me you want him to OD, you know what I mean. Respondent: Well, that's my only, that's the only way I know how to back off ... People around here look and see, watching seeing what you're doing, yeah. How do you get people to back off? What, you break their legs? Yeah, I don't know what you do. What do you do? ... UCO535: I can't give you that advice. The reason why I can't give your that advice because, for example, me ... Respondent: If you went a broke his legs and he didn't back off then, is that what you're saying? UCO535: No, no, it's solely up to you, you know what I mean. Whatever you decide to do, I'm happy to do. But I'm saying, I need you to tell me what you need done and that way I can then start planning, like, basic things like, for example, photos, address --- phone numbers, who does he hang out with, you know what I mean. What pubs he go to, all those sort of things ... then I can start doing a bit of homework ... because at the end of the day, mate, I don't give a fuck about him. ... Respondent: I can't give you specifically what I, all I want him to do is to leave us alone and not go through courts anymore, leave us completely alone until [my son] is 18, if he wants to go and look for his father, he can. And this is it, if he doesn't then, if he doesn't back off then yes, I would like him to overdose. Is that possible, is that without giving you details? ... Is that possible to do? UCO535: Mate, to, to, to make the bloke overdose there's ways. There's ways of doing things, you know what I mean. ... UCO535: But the reality is, if you need something done I need you to tell me exactly, because the trouble is, if I start the ball rolling, you know what I mean, I don't go back ... I get it done. There's certain things etcetera." 25There was much more discussion in the same vein. The respondent again (more than once) expressed her preference for a drug overdose, and her desire for BV to leave her and her son alone. Despite numerous attempts by UCO535 to have the respondent explicitly commit to what she was engaging him to do, she withstood those attempts. At one stage, well into the conversation, she recognised that this was what UCO535 was doing, and asked if he was recording the conversation. He denied that. 26There was more discussion of the mechanics of an overdose. The respondent expressed concern that, if all that was done to BV was that his legs were broken, he could retaliate against her. 27After more discussion UCO535 told the respondent that she had three options. These he identified as: "... talk, get rid of ... or walk away." The respondent immediately rejected the "walk away" option. She suggested, as alternative, having BV imprisoned. UCO535 made it clear that this was not a viable option. They reverted to the three options. The respondent said: "That's the second option. It keeps coming back to the second option." The "second option" was "to get rid of [BV]". UCO535 responded by saying that it was the respondent's decision. She said: "I can't walk away." 28They agreed that the respondent could take some time to consider her position and to meet again later in the day. 29UCO535 drove the respondent back to her home; during the course of the drive there was further discussion. They concluded with this exchange: "UCO535: And that way I can see are you serious, or aren't you serious, you know what I mean. Do you want to go on with it. And that's what I'm saying, at the end of the day it's your choice, you know what I mean? I'm not going to force you to do anything, I'm not going to tell you to do anything, you know what I mean? ... If you walk, walk away, you know what I mean, at the end of the day I just, I don't want you to give a contract to anyone else, and you've already said you're not, and that's it, you know what I mean, for me, I'm happy, whichever way, whichever way you decide." 30UCO535 left the respondent at just after 1.40pm. The arrangement was that he would return to her premises at 3pm. This he did, after the briefing with Detective Peverill. The respondent gave him the photographs to which I have referred above and good deal of information about BV. UCO535 again asked her to specify what she wanted done. He said: "The chances are all right, I think you're talking about option 1 what I spoke about, is that right?" The respondent assented to that proposition. Option 1, it will be recalled, was "talking" to BV. There is no indication in the recorded conversations that the respondent had indicated a preference for that option. However, the respondent agreed with the proposition. UCO535 said: "The chances are ... he's going to come back ... and get you. That, that, that's a chance ..." 31What followed should be extracted precisely. The transcript records: "UCO535: All right. I'll be upfront with you, I'm not going to bullshit you --- Respondent: No, and I don't want that. UCO535: Yeah. Option 2 --- Respondent: mmm. UCO535: --- is --- Respondent: Is the only way. UCO535: The only way, all right. If you say go for option 2 I'll do it but it's gunna cost. Respondent: As you know --- UCO535: Yeah. Respondent: --- in the experience --- UCO535: Yeah. Respondent: --- of all the stuff that you've done --- UCO535: Yeah. Respondent: --- option 2 is the only way isn't it, or walk away? Option 2 is the only way." 32There was then discussion about price and methods of payment. The conversation finished with the following: "UCO535: All right. Today we haven't spoken, you've never seen me and that's it all right. Respondent: The others saw you. UCO535: What was I there for? Respondent: To help me with the building. UCO535: Exactly right. Thank you. Thank you ... As I said Tanya I'll start the ball rolling, all right. Respondent: Don't worry I'm not gunna renig or anything --- UCO535: Yeah. Respondent: --- all that's --- UCO535: All right. As I said you know when I drive away from here --- Respondent: That's it. UCO535: --- that's it --- Respondent: Yep. UCO535: All right. Take care, enjoy. Respondent: Nothing's gunna come --- UCO535: Nothing will come back on you, all right." 33Shortly after this second conversation the respondent was arrested and charged with conspiracy to murder. She was taken into custody at the Deniliquin Police Station, where she was interviewed. That interview is not in evidence in the current proceedings. The District Court proceedings 34The respondent's trial was fixed to commence on 2 September 2013 in the District Court at Griffith. Prior to empanelment of a jury, the legal representatives of the respondent sought, pursuant to s 189 of the Evidence Act 1995, that a voir dire be conducted into the admissibility of the evidence of the recorded conversations. Whether s 189 or s 130 of the Criminal Procedure Act 1986 was the appropriate enabling provision does not here need to be determined. In written submissions provided to Jeffreys DCJ, counsel for the respondent raised the following issues: * the validity or invalidity of the Authority granted by the Assistant Commissioner Fuller on 19 May 2012; * the lawfulness or unlawfulness of the conduct of Detective Peverill, UCO535 and Detective Azzi in the conversations with the respondent and the recording of those conversations. 35It was contended on the respondent's behalf that the Authority was invalid, and therefore did not authorise the activities of UCO535. In the alternative, it was contended that, even if the Authority were validly granted, the conduct of UCO535 and the other detectives did not comply with: * cl 3(a)(i) of the code of conduct; * cl 5(a) of the code of conduct; * s 7(1)(a) of the LE(CO) Act; * s 16 of the LE(CO) Act. It was therefore contended that the evidence was unlawfully or improperly obtained and ought not to be admitted having regard to s 138 of the Evidence Act. 36Detective Peverill and UCO535 gave oral evidence on the voir dire and were cross-examined. 37On 5 September 2013 Jeffreys DCJ gave judgment. He held that the evidence was unlawfully obtained. Accordingly, having considered the provisions of s 138 of the Evidence Act, in the exercise of the discretion thereby conferred, he ruled that the evidence would not be admitted in the trial of the respondent. 38The precise means by which his Honour reached the conclusion that the evidence was unlawfully obtained is not entirely clear. His Honour considered s 7 of the LE(CO) Act to be "a very important consideration", and that the protection afforded by s 16 is only available to activity clearly authorised in accordance with the LE(CO) Act. He went on to conclude that UCO535 encouraged the respondent to engage in criminal activity that she could not reasonably be expected to engage in unless so encouraged. Accordingly, he held, the activity of UCO535 went further than could be authorised and was therefore not protected by s 16. He held that, in considering the respondent's "intentions" he was confined to the evidence of the recording and could not have regard to the reasons underpinning the application for the grant of the Authority. That appears to be a reference to the evidence of Detective Peverill that he had secured information that the respondent was making inquiries into having BV murdered. 39In written submissions filed on behalf of the respondent in this Court, senior counsel sought to support the exclusion of the evidence. Her starting proposition was that the Authority was invalidly granted. This, she contended, was because the Authority purported, on its face, to authorise conduct that was expressly prohibited under the LE(CO) Act. The conduct said to meet that characterisation was; "conspiring, agreeing, soliciting, encouraging, persuading or endeavouring to persuade, or proposing to any person to commit the murder of [BV] by [the respondent], and any other person associated in the commission of the said criminal activity ..." Such authorisation was, so the argument ran, in breach of s 7(1)(a) of the LE(CO) Act. Moreover, senior counsel submitted, the conduct so authorised was in contravention of the code of conduct. 40That contention cannot be accepted. Section 7 is concerned with and directed to the granting of an Authority. Section 7(1): "... delimits the scope for any exercise of authority by a Chief Executive Officer.": Gedeon v The Commissioner of the NSW Crime Commission [2008] HCA 43; 236 CLR 120 at [46]. 41The limitation is on the grant of an Authority involving any participant in the operation in any of the activities identified in paras (a), (b) and (c) of s 7(1). 42In considering whether an Authority is invalid by reason of failure to come within the limits imposed by s 7(1), it is necessary to have regard to the specific conduct that is authorised, but also to the CEO's declared satisfaction as to the other matters of which he or she is required, by s 6(3), to be satisfied, and the matters to which he or she is required, by s 6(4), to have regard. When recourse is had to the precise terms of the Authority issued in this case, it will be seen that Assistant Commissioner Fuller was satisfied that: "No participant will induce or encourage another person to engage in criminal activity or corrupt conduct of a kind that the other person could not reasonably be expected to engage in unless so induced or encouraged." The activity authorised under the heading of "Nature of controlled activities" in column 2 of cl 6 must be read in conjunction with that declaration of satisfaction. Accordingly, the Authority fell precisely within the terms of s 7. 43It is not clear that Jeffreys DCJ took the view that the Authority was, in the sense contended by senior counsel, invalidly granted, although there are pointers in that direction in the judgment. 44It seems to me, however, that the principal reason for determining that the evidence was unlawfully obtained was a conclusion of fact that UCO535, in his conversation with the respondent, encouraged her to engage in criminal activity that went beyond what she could reasonably have been expected to engage in absent that encouragement. The factual basis on which his Honour reached this conclusion was stated as: "Between the first conversation and the second conversation the undercover operative had a briefing with his supervisor. The undercover operative's supervisor and Detective Peverill had listened to the conversations live. It is clear in my view that the undercover operative in the first conversation tended to raise difficulties and/or obstacles in relation to various options discussed other than the murder option. When I listen to the conversations it seems to me that the [respondent] raised options which were then as a consequence of the difficulties and/or obstacles indicated by the undercover operative effectively eliminated insofar as the [respondent] was concerned, and she was on a number of occasions returned to the murder option. The undercover operative in his evidence denied that his conversations with the [respondent] encouraged her to engage in criminal activity." The essential finding of fact was that, by his conduct, UCO535 actively encouraged or induced the respondent to engage in the criminal activity of soliciting murder; and that, in doing do, UCO535 crossed the line between obtaining evidence of criminal activity, and provoking or inducing criminal activity. That conduct was not protected by s 16, and was, accordingly, unlawful. The factual conclusions on which that was based were not open on the evidence, and cannot be sustained. Indeed, senior counsel for the respondent did not attempt to support them. It is because of those factual conclusions that I have set out, at considerable length, the conversations. At all times UCO535 was assiduous in seeking to have the respondent identify what it was that she wanted him to do. It was the respondent who first, at an early stage, proposed a drug overdose. It is true that she was wary, until a relatively late stage in the conversations, of committing herself to the course of action to which she ultimately committed. But it is quite wrong to say that UCO535 "tended to raise difficulties and/or obstacles" in relation to options other than the murder option. It was therefore unsustainable to find, as his Honour in effect did, that the respondent's decision to participate in soliciting the murder of BV was brought about by UCO535's conduct, and would not, otherwise, have occurred. 45Moreover, despite his Honour disregarding evidence, other than that contained in the conversations, with respect to the respondent's intentions, the recordings were not the only relevant evidence with respect to the question of what conduct she would have engaged in. Detective Peverill's evidence was that he had become aware of the respondent making inquiries into having BV murdered. That evidence was not challenged and no objection was taken to it. It is a highly relevant piece of evidence in the consideration of kind of conduct the respondent would or might have engaged in absent any encouragement or inducement by UCO535. 46In my opinion the conclusion that the evidence was unlawfully obtained was not open and was wrong. 47I would add that the same conclusion follows in the event that an impropriety by reason of breach of the code of conduct were to be raised. 48Given the conclusion I have reached, there is no call to consider s 138 of the Evidence Act. 49The orders I propose are: (i)The Director's appeal is upheld; (ii)The ruling of the District Court that evidence of the conversations between UCO535 and the respondent not be admitted is vacated. 50HALL J: I agree with Simpson J. ********** Amendments 06 February 2014 - Names anonymised Amended paragraphs: coversheet, 16, 18, 22, 23, 24, 25, 26, 27, 30, 38, 39, 44, 45 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. Decision last updated: 07 July 2015