Supreme Court New South Wales Medium Neutral Citation: R v Fesus (No 2) [2015] NSWSC 1467 Hearing dates: 21, 22 & 23 September 2015 Date of orders: 25 September 2015 Decision date: 25 September 2015 Jurisdiction: Common Law Before: Wilson J Decision: 1. The recordings and evidence [REDACTED] summarised in Ex. VD A is not, of itself, admissible. Should the accused wish to explore the circumstances [REDACTED] relevant questions may be asked of UCO 1 and other participating operatives. Such questions may be directed to any alleged inducements held out to the accused [REDACTED] for the purposes of the undercover operation in 2013. 2. The recording of the meeting between the accused and UCO 6 on 8 July 2013 (Ex. VD CV 42) is admitted. 3. The evidence of the recorded interview between the accused and Detective Senior Constable Sebastian Herft on 8 July 2013 (Ex. VD CV 43) is admitted, save for the following discrete portions (by reference to the transcript, aide memoire to the exhibit): i. Q&A 170 – 174 inclusive; ii. Q&A 184; iii. Q&A 189 – 191 inclusive; iv. Q&A 198 – 205 inclusive; v. Q 259; and vi. A 259 "Well, that was the main one". Catchwords: CRIMINAL LAW – pre-trail proceedings – voir dire concerning the admissibility of evidence – undercover police operation – admissions made to undercover police operative – question of legality of undercover operation – question of unfairness by police Legislation Cited: Evidence Act 1995 Law Enforcement (Controlled Operations) Act 1997 Cases Cited: Dupas v The Queen [2012] VSCA 328; 218 A Crim R 507 Em v The Queen [2007] HCA 46; (2007) 232 CLR 67 Fleming v R [2009] NSWCCA 233 R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 R v Swaffield; Pavic v The Queen [1998] HCA 1; (1998) 192 CLR 159 Ridgeway v The Queen [1984] HCA 66; (1984) 184 CLR 19 Tofilau, Marks, Hill, Clarke v R [2007] HCA 39; (2007) 231 CLR 396 Category: Procedural rulings Parties: Crown Steven Frank Fesus Representation: Counsel: Mr J. Crespo (Crown) Mr M. Finnane QC with Ms Carroll (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Nyman Gibson Miralis (Accused) File Number(s): 2013/207336 Publication restriction: Some sections of the published judgment have been redacted in compliance with non-publication orders; non-publication order in respect of all details of police operation; suppression order in respect of names and identities of police undercover operatives. Judgment 1. On 8 July 2013 the accused, Steven Frank Fesus, was arrested and charged with the murder of his wife, Jodie Fesus. Mrs Fesus had been missing since 11 or 12 August 1997. Her body was found about a month later on 14 September 1997. She had been buried in a shallow grave in sand dunes at Gerroa. 2. Although the accused was always regarded by investigating police as the principal suspect in the murder of Mrs Fesus, there was insufficient evidence to charge him, and the investigation was suspended in 2001. 3. In 2012 the South Region Unsolved Homicide Squad decided to reopen the investigation. The accused remained the focus of police inquiries, there being no other suspect. 4. A covert investigation utilising undercover police operatives was authorised by a Chief Inspector of Police in 2012 and commenced in October 2012. An elaborate covert operation involving a number of undercover police operatives was devised and subsequently implemented. The operation ended after the accused, in conversation with a police officer, undercover police operative ("UCO") 6, made admissions to having strangled his wife on the night of 11 August 1997, and burying her body on Seven Mile Beach at Gerroa. 5. [REDACTED]. 6. After his arrest the accused was interviewed by Detective Senior Constable ("DSC") Sebastian Herft about his wife's murder. He denied having murdered her, and said that he had admitted having killed her to UCO 6 only because he was offered an inducement [REDACTED]. 7. The accused was charged and his matter was committed for trial. The matter is listed for trial in this Court on 13 October 2015. 8. The accused objects to the Crown leading evidence of his admissions to UCO 6, or of his subsequent interview with DSC Herft. He argues that it would be unfair to permit the Crown to rely upon this evidence, and it should be excluded pursuant to ss 90, 137 and 138 of the Evidence Act 1995 ("the Act"). 9. The accused was arraigned before me on a single count of murder on 21 September 2015. A pre-trial voir dire hearing followed. The parties tendered and relied upon a large volume of documentary material. In addition, the Crown called three police officers to make each available for cross-examination. The Court heard and viewed recordings of the disputed evidence of 8 July 2013 (Ex. VD CV41, 42, 43), together with a recording of a call to the Triple 0 operator made by an anonymous male on 14 September 1997. The Evidence Available to the Crown Prior to October 2012 1. The accused was born on 1 September 1970. Mrs Jodie Fesus (née Smith) was born on 19 April 1979. The accused and the deceased met when the deceased was 16 years of age. She was at that time approximately six months pregnant to a former partner. She and the accused commenced a relationship. The couple lived together in the Mount Warrigal area. 2. On 6 July 1995 the deceased gave birth to a daughter, [Child A]. The child's biological father was not involved in her care and the accused acted as a father figure. 3. On 27 June 1996 the deceased gave birth to a son, [Child B]. 4. The deceased and the accused were married on 19 May 1997. 5. The deceased was last seen alive by someone other than the accused on Monday 11 August 1997. The deceased, the accused, and the two children went to the home of friends, Jason and Leanne Nowicki, in Warrawong for dinner. During the course of the evening [Child B] needed a nappy changed. There was an argument about it between the accused and the deceased, with the deceased "screaming" at her husband, punching him in the chest, and slapping him in the head in front of their friends. The accused walked away, but was very quiet for the remainder of the evening. 6. By the time the couple left with the children Mr Nowicki considered that the accused and the deceased were interacting normally. His wife, Mrs Nowicki, on the other hand, believed that the deceased was not speaking to the accused, having told Mrs Nowicki privately earlier in the evening that she intended to move out of the family home. 7. After arriving home on the evening of 11 August 1997, the deceased spoke to her mother on the telephone, and made arrangements to travel to Emu Plains on 13 August 1997 with her mother, to see her sister for her 21st birthday. The call commenced at 8.47pm and was of short duration. 8. That was the last contact anyone other than the accused had with the deceased. 9. Between 9.30am and 11am on 12 August 1997 the accused went to the Shellharbour Workers Club where he spoke with Marilyn Sturm. He left the two children with Ms Sturm in the foyer of the Club whilst he went to an office to send some documents off by facsimile machine. 10. At some time between 10am and shortly after 11.30am the accused was seen by his next door neighbours, Vicki and Leonard Potter, at the front of his house washing his car, a red Holden Commodore station wagon. 11. The accused told Mrs Potter that his wife was missing. He referred to an argument that he and his wife had had the previous evening, and commented on her having hit him. 12. Later, he asked Mrs Potter whether fingerprints could have been left on the deceased due to strangulation. 13. On Wednesday 13 August 1997 the accused formally reported his wife as missing. He told an officer at Warilla Police Station that he had last seen his wife at their home at 9.30am on the morning of 12 August 1997. She had been asleep in bed at that time. The accused said that he left the house to go to his workplace, taking the two children, then aged 2 years and 1 year respectively, with him. He claimed that when he returned later that day his wife was not at home, and she did not return home subsequently. 14. Later that day, Noel Hannah found a black wallet near the railway station at Oak Flats when out walking with his grandson. There was identification inside but no money. He took the wallet home and gave it to his wife to make arrangements to return it to its owner. Geraldine Hannah found identification inside the wallet in the name of Fesus, and telephoned the number listed for that name in the telephone book. She spoke to the accused and told him that her grandson had found the wallet. She did not nominate the location where the wallet was found. She arranged to return the wallet on 13 August 1997. 15. That same day the accused spoke by telephone to a sister of the deceased who lived in Western Australia. He asked her if she thought the deceased's mother "would take [Child A] off" him. He said that he thought the deceased's mother thought he had "done something". He asked the same question again in a further telephone conversation the following day, asking additionally whether the deceased's mother believed him to be involved in his wife's disappearance. He also commented that his wife had been someone who flirted with every guy she saw. 16. On 14 August 1997 the accused spoke with Debra Parnell, a close friend of his wife. He asked her to come to the house and she did so. Although the accused reported that his wife's identification in her maiden name was missing, Ms Parnell found it readily in a box in a wall unit. She noticed that there seemed to be no item of Mrs Fesus' property missing from the house, and saw that all of her jewellery, that ordinarily Mrs Fesus never took off, was on a dresser in the main bedroom. When she asked the accused about it, he said that he had emptied out a bag he found and the jewellery had been in the bag. 17. The accused asked what he should do with his wife's possessions, and inquired if he should take them to the Smith Family or the St Vincent De Paul Society. Ms Parnell told him that Jodie would be back and said the accused should leave her things in the house. 18. Ms Parnell noted that Mrs Fesus was devoted to her two children. Mrs Fesus had complained about the accused from time to time, and had spoken of leaving him. 19. Just after midnight on 14 August 1997 the accused returned to Warilla Police Station with further information about his wife's disappearance. He said that his wife had returned home at some stage the previous evening between 4.30am and 11.30am and taken some of her clothing. He said that she had taken her purse from her handbag which had been in the wardrobe. He claimed to have found her engagement and wedding rings in a shoulder bag in the house. 20. On 15 August 1997 the accused made telephone contact with Lisa Brimson, the daughter of the person who found the deceased's wallet. Although he did not know Ms Brimson, the accused gave a lengthy account of how his wife had vanished, his fears and concerns about her disappearance, and that, at the time she went missing, he had been expecting his wife to leave him. He referred to the discovery of the wallet at the railway station, mentioning the location. 21. On 16 August 1997 the accused spoke to Belinda Smith in a telephone conversation, telling her that, "I think Jo came back tonight to the house while I was at work because I caught her in the house and she went out the back door." 22. Within a week of the deceased's disappearance, on the Saturday after she was reported missing (16 August 1997), Diane Nardone saw the accused speaking with her then boyfriend at the Shellharbour Workers Club. Ms Nardone, who has some partial loss of hearing, is able to read lips. She observed the accused to say to his fellow security guard, Michael Kunze, "Everything is under control; no-one is ever going to find out". Soon after he said "It happened so quickly because she wouldn't listen. I didn't mean to do it; I didn't mean to do it". In another conversation a week later Ms Nardone observed the accused to say that "it" happened the night before his wife "went missing", repeating that it "happened too quickly". 23. Mr Kunze denied that any such conversations took place. 24. (There are some doubts as to the reliability of Ms Nardone's evidence). 25. On 23 August 1997 the accused again attended Warilla Police Station to further report on his wife's disappearance. He told Constable Murray that he had retrieved his wife's wallet from a person who had contacted him after finding the wallet at Oak Flats railway station. He gave the officer a document detailing the efforts he had made to find Mrs Fesus. 26. On 25 August 1997, the accused attended the local office of the Department of Social Security (DSS). He made an application for the Sole Parent Pension, nominating himself as the sole parent of [Child A] and [Child B]. He was required to complete an application form which contained a question, "Is the other parent still living?" The accused ticked the "no" box. 27. The accused was interviewed by a DSS officer. When questioned by the employee about his answer to that question, the accused responded "oh" and then ticked the "yes" box. Because of the uncertain status of the deceased's apparent separation from the accused, the accused was refused a permanent benefit. Only a temporary fortnightly benefit was paid. 28. On 26 August 1997 the deceased's mother, Gay Kotvojs, who then lived in the Australian Capital Territory, also made a report to police that her daughter was missing. She was interviewed and raised with the interviewing police her suspicions concerning the accused, and what may have happened to the deceased. She raised a number of aspects of the accused's conduct in the days since 12 August 1997 that had given rise to her suspicions. 29. Police officers interviewed the accused the same day about his wife's disappearance. Because of the information received from Ms Kotvojs, the accused was considered a suspect in his wife's disappearance, and interviewing officers had strict instructions not to convey any information about the investigation to the accused. 30. He was interviewed as a witness rather than as a suspect under caution. He told police that he had last seen his wife at 6am or 7am on the morning of 12 August 1997. He said that he got up at that time, fed and bathed the children and then, taking them with him, went to the Shellharbour Workers Club to fax some documents to his employer. On his return less than an hour later, he found that his wife was not in the house. He noted that his wife's purse and handbag had gone. 31. He also reported that, on finishing work on the evening of 14 August 1997, he had returned home with a female colleague, on the chance that his wife may have returned home and needed the presence of another woman. He had found a bag in his and his wife's bedroom which was packed with underclothes, a hair brush, toiletry items, and items of jewellery including his wife's engagement and wedding rings, as well as a necklace. 32. He gave details of having been telephoned by a woman whose name he did not get whose grandson had found the deceased's wallet at Oak Flats railway station. Mrs Fesus' identification and cards were in the wallet but there was no money. 33. In the interview the accused raised with police the possibility that his wife had gone "up to Kings Cross", may have been "dibbling" or laundering money, and that she may have been abusing prescription drugs. He said she suffered postnatal depression. There is no evidence from any other witnesses that would give rise to such concerns. 34. The accused also reported both that his relationship with his wife had been perfect, and that the deceased had repeatedly threatened to leave him. He asserted that she may have been having an affair with a neighbour. 35. The woman invited to accompany him home on the evening of 14 August 1997 was Kerry Smith. Ms Smith told police that, in the weeks or months prior to the disappearance of the deceased, she and the accused had kissed. She stated that, on 13 (not 14) August 1997 she had worked a shift with the accused, who had arranged a shift change for her so that she worked with him that evening. At the completion of their shift the accused asked her if she would go with him to his home and check the house to see if anything was missing. He said that his wife had told him a month previously that she was leaving him. 36. Ms Smith went to the accused's house with him. On entering the house, she went to the kitchen and the accused went into the main bedroom. She heard the accused call out to her. On joining the accused in the bedroom she saw him standing at the end of the bed gesturing towards a blue carry bag. The accused yelled, "it wasn't there, it wasn't there." Ms Smith told him to pick it up but he refused, saying, "No, I'm not touching it". Ms Smith looked in the bag and found the deceased's black leather handbag, underwear and other items. There was also a wedding ring, an engagement ring, a third ring, and a gold chain necklace. 37. The accused said, "She has to be around somewhere." 38. Later they reported the finding of the bag to the police and then went to another location where they parked their car and were intimate. 39. On 11 September 1997 the accused spoke with the deceased's step-father, Greg Kotvojs, as well as Mrs Kotvojs. Mrs Kotvojs commented that she did not think her daughter would be coming back. The accused said that he agreed, and commented that he had already packed up all of his wife's things to move them, and intended to sell a computer. 40. In the middle of September 1997, just past 7am in the morning, Neil Purton saw a red Holden Commodore station wagon leaving the entrance to the Seven Mile Beach car park. The registration plate contained the letters SIS. The following day Mr Purton saw a large number of police cars in the area where he had seen the red car. 41. Although she could not be sure of the date, believing it to be between 10 September and 4 October 1997, another witness, Lucille Johnstone, saw a man wearing sunglasses in a red Commodore station wagon entering the car park at Seven Mile Beach. She described the car as being in near perfect condition. Less than a week later she saw the news and the man and car she had seen at Gerroa was depicted. The news she referred to was a broadcast on a television programme, Australia's Most Wanted, on 2 October 1997, which featured the accused and a red Commodore station wagon. 42. Police inquiries determined that some 19 red Holden Commodore station wagons had a partial registration plate SIS. Inquiries revealed that none of the registered owners of the vehicles were in the area of Seven Mile Beach on the relevant day. 43. The accused drove a red Commodore station wagon, registration SIS-735, at the time. 44. On the evening of 14 September 1997 a male telephoned Gerroa Police Station. Because the station was unattended the call was automatically transferred to the Triple 0 operator, and was recorded. The recording was tendered as a voir dire exhibit (Ex. VD C). A male voice reported finding human remains on Seven Mile Beach. The caller would not give his name. There were two further calls made to other police stations by a male who asserted that he had reported his discovery of a body to police earlier. He asked to be given a "code" so that he might claim a reward for the information he had provided. A code was provided to the caller, who refused in any call to give his name. No reward was ever posted for the information, nor was a reward ever claimed. 45. Having received the call about the remains, police searched Seven Mile Beach at Gerroa. The body of the deceased was found buried in a shallow grave in sand there. 46. The body of the deceased had been partially uncovered, with sand in a circular shape of approximately three meters in diameter with the appearance of having been freshly overturned. There was no odour at the scene and no fly activity, with some minimal larval infestation suggesting recent exposure. Two distinct shoe impressions were noted at the scene. The grave outline appeared to be very close to the body indicating a very small grave. There was evidence of probable carnivore disruption at the burial site. 47. The area of the grave site was searched, and a red "P" plate was noticed in the area. It was not initially recovered as it was not believed to be significant. When police made a search of the accused's car a single red P plate was found in the glove box of the car (Mrs Fesus having had a provisional licence). Following that discovery, police returned to Seven Mile Beach and retrieved the lone P plate from a garbage bin where debris from the crime scene had been dumped. Its condition was such that no fingerprints could be found on it. 48. A statement was later obtained from Darren Gee, who was a friend of the accused. Mr Gee said that he and the accused had gone to Seven Mile Beach on occasion, in about 1990, to surf. 49. The deceased was 18 years old at the time of her death. On autopsy she was found to weigh 64 kilograms; she was 165 centimetres tall. Her body was so decomposed that identification was made from dental records. 50. The autopsy findings were that decomposition suggested that death had occurred more than two weeks previously. There was a bruise under the skin surface over the right side of the top of the head, skin discolouration, possible drag mark effects over the left upper back and probable animal related defect over the area of the left hip. There was an area of ill-defined discolouration of the tissues around the left greater horn of the hyoid (in the throat area) and over the lateral aspects of the left side of the left thyroid cartilage. There was an area of reddish discolouration on the right side of the neck. 51. No definite cause of death was able to be determined. Suffocation or strangulation was possible, as was a blow to the head, with decompositional change having masked any signs of the latter. 52. The direct cause of death was given as "homicidal violence of uncertain aetiology". 53. Dr. Paul Boterrill, the forensic pathologist who conducted the post-mortem examination, considered it possible that strangulation with a broad ligature or with human hands could result in death without discernible injuries. 54. The accused was 170-175 cm tall and as of August 1997 weighed approximately 85-90 kg. 55. On 17 September 1997 the accused telephoned Gina Paleologo, a social worker employed by the NSW Institute of Forensic Medicine, on two occasions. He enquired as to the cause of his wife's death. Ms Paleologo told the accused that there was no interim cause of death at that point. The accused said he wanted to see his wife's body. 56. At about 4pm the accused called again and said he had been interviewed by police. He arranged to view the body the following day. The accused again asked about the cause of death, and also about the clothes the deceased had been wearing. He was told that he would be spoken to the following day. 57. On 18 September 1997 the deceased's body was prepared for viewing. The accused attended and was shown his wife's body. The body was completely obscured, with the exception of a small section of skin that was exposed in the chest area. This area bore a tattoo on the skin, which the accused had said he had designed. 58. Having seen the tattoo the accused told Ms Paleologo, "It's not her". Although his wife did not have such a mark, he asked if the body had a birth mark on the back of the neck. After asking the accused to leave the room, Ms Paleologo examined the body, looking for such a birth mark. She then advised the accused that the decomposition of the body made it impossible to tell. 59. The accused then asked if there was a caesarean scar. Ms Paleologo again inspected the body after the accused left the room. Having done so, she told the accused she was not able to tell due to the condition of the body. 60. The accused asked to see the deceased's face. He asked about her earrings and clothing. 61. The accused asked if the deceased had been strangled. He said he had heard that she had. He also asked if doctors would be able to tell. He asked about the post mortem and what tests were done. He was told that further tests would be done including looking at tissue under a microscope. 62. On 3 October 1997 the accused telephoned again enquiring about the toxicology tests. 63. The accused was interviewed by investigating police on three further occasions, 2 October 1997, 28 December 2000, and 4 January 2001. On each of these occasions he was cautioned as a suspect in the death of Mrs Fesus. 64. On 2 October 1997 the accused confirmed that he had washed his red station wagon on 12 August 1997. He claimed to only know the northern end of Seven Mile Beach. When asked about the discovery of a P plate at the grave site he asked, "How can you tell if it's the same one?" He conceded that he and his wife had not had a sexual relationship since their marriage because, he said, he didn't want to have another child. 65. In the interview of 28 December 2000 the accused made a number of complaints about his wife. He claimed that she suffered from postnatal depression and was moody, sometimes lashing out at him. He said she spent money constantly, and that there was money missing at the time of her disappearance. He again raised the issue of Mrs Fesus having had an affair with a neighbour, claiming that she had miscarried a pregnancy at a time when he and his wife were not sexually involved. 66. In speaking about his work as a security guard, the accused said that he calmed people by giving them bear hugs and that he had done this to his wife on occasion. 67. In the last interview of the first investigation, conducted on 4 January 2001, the accused conceded having had his red Commodore station wagon at the time of his wife's disappearance and the subsequent discovery of her body, but denied driving to Gerroa at the time. He denied having made any anonymous call to police to reveal the location of his wife's body, and he denied making inquiries of Ms Paleologo about strangulation as the cause of death. He made a number of assertions about the sexual activity of his wife with others, and conceded having put the deceased in a bear hug to calm her down on occasion. The Investigation of 2012 and 2013 1. In August 2012 DSC Herft reviewed the brief of evidence as it stood in 2001 when the investigation into Jodie Fesus' murder was suspended. Subsequently, the Southern Region Unsolved Homicide Squad sought the assistance of the Police Undercover Branch in further investigating the crime. The request for assistance was approved by the Commanding Officer of that branch, and Detective Sergeant [SB] was given the task of liaising with DSC Herft, and supervising the involvement of undercover operatives. 2. DS Bowen was responsible for devising an investigative strategy with a view to locating further evidence concerning the murder of Mrs Fesus. The accused remained the only suspect. 3. In broad terms the strategy that was implemented involved undercover police operatives making contact with the accused, [REDACTED]. 4. A relationship with the accused was to be cultivated, with a view to gaining his trust. 5. To that end, initial contact was made in January 2013 [REDACTED]. 6. [REDACTED] 7. [REDACTED]. 8. [REDACTED] 9. [REDACTED] 10. [REDACTED] 11. [REDACTED] 12. [REDACTED] 13. [REDACTED] 14. [REDACTED] 15. [REDACTED] 16. [REDACTED] 17. In late June 2013 and early July 2013 DSC Herft arranged for a media release to make it publicly known that the investigation into the murder of Jodie Fesus had been reopened, and police were confident that an arrest would be made (Ex. VD B). The deceased's daughter [Child A] assisted the police by appealing for information from the public. 18. Subsequent to the media releases, UCO 1 expressed some concern about the murder inquiry and the difficulties the accused could face. [REDACTED] 19. On 8 July 2013 UCO 1 took the accused to a city hotel to meet with [REDACTED] (UCO 6). [REDACTED] 20. The meeting between UCO 6 and the accused took place in a hotel room from 1.38pm. The room was subject to both audio and visual surveillance and the meeting was recorded. The recording was played to the Court. 21. [REDACTED] 22. [REDACTED] 23. The accused initially maintained that he had done nothing. At p.5 of the transcript to Ex. VD CV 43, he said: "[…] I didn't do this mate. I'll honestly tell you the truth, mate. I can honestly tell you." 1. At p.8 of the transcript the accused again insisted: "But I didn't do it, mate, and that's the honest truth […] Yeah but I didn't do something and that's the honest truth mate." 1. [REDACTED] 2. Eventually the accused told UCO 6 that he had had an argument with his wife at the Nowicki house over a soiled nappy. He said they argued on the way home (p.24). He later continued (at p.32), "What would you like me to say? OK. We got into a heated argument, things happened and then we went for a drive. Is that what you wanted to hear? That's the truth. […] I went down to Gerroa then. OK." 1. The accused told UCO 6 that, at the time, he had been working two jobs to support his wife and the children, and looking after the children and house as his wife was lazy. He said (at p.38), "Just, no, I didn't stab her. No, I didn't bash her. 'Cause what do they say […] I choked her out." 1. After, he said he left the children alone in the house, put his wife in the car and went to Gerroa. He buried her using "tree stuff" (p.38). 2. Later in the conversation (at p.43) the accused said: "I know I strangled her […] It was in the lounge room. I don't know if she was dead. I don't know mate. [..] I don't believe there's any marks either." 1. As to the disposal of the body the accused said (at p.58): "[…] the garage was underneath the house. OK. Back steps, I brought her down the back steps. The car was located in the garage. Put the, put her into the car. Reversed out, shut everything up and gone." 1. He described the route that he took to Gerroa and said that it was dark, at 10pm or 11pm. The accused told UCO 6 that the grave was not deep, just deep enough to cover a body. 2. He noted that, on the drive back, he may have stopped at a "7-Eleven" service station that was located across the road from the Shellharbour Workers Club, but did not think surveillance cameras had been in operation. 3. Despite being repeatedly pressed by UCO 6 the accused maintained his denial of having exposed the body and made the anonymous telephone call about its location. 4. In explanation for the length of time it had taken the accused to tell UCO 6 what he had done, he said (at p.65), "You know, it's not a, it's a willy wonker a ticket for fame or anything but, I don't know. I just don't want to go to gaol or anything. I love my kids too much." 1. After leaving with UCO 1 for a meal at 4.24pm, and returning to the hotel room for a further discussion with UCO 6 at 5.33pm, the accused said (at p.78): "She was going to leave me and, leave me and take the kids away from me that I'd never seen them again. Maybe that might have been a tick off. Like, you can't take my family off me." 1. Having told UCO 6 that he strangled his wife, he continued (at p.79): "Like, it wasn't a struggle or anything. It was, you know, when you get, you're not taking anybody, you're not doing this, you're not doing that, you know. You can't do this and I was holding her. I didn't throw her or anything mate. I didn't throw her at all. Maybe I hugged her too hard or something that's what I think I did. You know, when you, you know, it's like, "No, no no", kind of thing." 1. The accused gave a demonstration as he said this, as if holding something tightly and shaking it. 2. There was some further discussion, after which DSC Herft entered the hotel room and arrested the accused. It was then about 6pm. The accused put his head down and said, "I'm sorry, I'm sorry". 3. He was taken from the room and, whilst waiting for an elevator, said again that he was sorry before asking "What am I going to tell my kids". This comment was not electronically recorded. 4. Having been taken to a nearby police station, and whilst having a cigarette in a garage area, the accused said to DSC Herft, "What am I going to tell D[..] […] I don't know what to say to him. He's going to hate me isn't he". This conversation was not recorded. 5. A formal interview followed. In the interview the accused gave some information about the commencement of the relationship with his wife. When made aware that the conversation with UCO 6 had been recorded by police, he said that he had not told UCO 6 the truth, but had made up the story because UCO 6 was "offering him the world" (Q&A 182). 6. In August 2014 DSC Herft met with Dr Botterill and showed him the recording of the conversation between UCO 6 and the accused. Dr. Botterill concluded that the description and demonstration given by the accused of how he had strangled his wife, and of how he had buried her, was consistent with the doctor's observations of the burial site in 1997 and of the deceased. The Issues to Be Determined 1. [REDACTED]. The accused submits that the undercover operation involved the commission of crime and corrupt acts and should have been authorized under the Law Enforcement (Controlled Operations) Act 1997. Because it was not so authorised, the evidence of the admissions to UCO 6 was illegally obtained and should be excluded. 2. Further, the accused argued that the admissions were obtained through improper and unfair conduct by police, including improper pressure and the offering of inducements. The accused submits that the admissions should be excluded pursuant to ss 90, 137 and 138 of the Act. 3. The Crown submits that there is no relevant unfairness. It is submitted that the probative value of the disputed evidence is very high, and the evidence is such that its ultimate reliability should be left to the assessment of a jury. Consideration 1. The first question to be answered in any matter where the admissibility of evidence is disputed is, is the evidence relevant? 2. Relevant evidence is evidence which, if accepted, could rationally affect either directly or indirectly the assessment of the probability of the existence of a fact in issue in the proceeding: s 55 of the Act. 3. The disputed evidence was evidence of apparent admissions to the crime charged. An admission is defined by the Dictionary to the Act as: "admission means a previous representation that is: (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and (b) adverse to the person's interest in the outcome of the proceeding." 1. The comments the accused made to UCO 6 as to his wife intending to leave him and take the children, strangling his wife, choking her out, hugging her too hard, and taking her body to Seven Mile Beach are plainly previous representations made by a defendant in criminal proceedings which are or are capable of being adverse to his interests. 2. Similarly, the apologies the accused made to DSC Herft after his arrest, and his largely rhetorical questions in relation to the reaction of his children to his arrest are previous representations adverse to the accused's interests. 3. Whether the accused's repudiations of those admissions in the subsequent interview with DSC Herft are "admissions" is less straightforward. In the interview the accused denied the truth of the admissions made to UCO 6, and asserted a reason for making false admissions to him, that being the inducements held out to him by UCO 6. 4. A denial of the conduct charged is in my view capable of being an admission. Here, it would fall to the jury to assess what the accused said and, given the existence of an audio-visual recording, how his comments were made. Context and the accused's demeanour will be of great significance to the assessment made by the tribunal of fact. Considering the whole of the evidence of the denials, which includes footage of the accused making the denials, I have concluded that the denials are previous representations which are or may be regarded as adverse to the accused's interests. 5. On that basis, the comments recorded in Ex. VD CV 43 (ERISP of 8 July 2013) should be treated as admissions. 6. That the admissions are readily capable of affecting the probability of the existence of a fact in issue, the facts in issue here being, at a foundational level, the elements of the charge of murder but, more specifically, whether the accused murdered his wife, and thereafter buried her body in sand dunes at Gerroa, is not in dispute. Each of the impugned admissions, made to UCO 6 and to DSC Herft, go to proof of the facts that will be in issue at trial. 7. As a threshold issue, the disputed evidence of admissions made by the accused is relevant and satisfies the test at s 55 of the Act. 8. At least at a prima facie level, the evidence is admissible. 9. It then falls to assess the accused's contentions as to why relevant evidence is nevertheless inadmissible. 10. The accused relies upon ss 90, 137 and 138 of the Act as the bases upon which the evidence should be excluded. It is convenient to deal with each in turn. Section 90 of the Evidence Act 1. Section 90 of the Act provides: "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." 1. Section 90 confers a discretion on the court ("may refuse") to exclude evidence sought to be tendered by the Crown if its admission would be unfair to the accused having regard to the circumstances in which the admission was made. 2. It is for the accused to establish that it would be unfair to him to permit the Crown to adduce the evidence. 3. The circumstances in which the admissions were made encompasses both the circumstances in which the accused uttered the particular words, but must also in my view include the circumstances of the covert operation conducted by police between January 2013 and July 2013, since it was that operation which gave rise to the events of 8 July 2013. 4. The issue requires consideration of whether some aspect of the circumstances in which the admissions were made dictates a conclusion that the use of the evidence at trial would be unfair to the accused. 5. The accused contends that the use of the evidence of the admissions would be unfair to him because the admissions were unlawfully obtained. Additionally, it is argued that the admissions are unreliable, having been obtained after the accused's repeated denials of wrongdoing were rejected, and only by persistent pressure, questioning of a coercive nature, and the offer of significant inducements. 6. The accused submits that the admissions were obtained as a consequence of illegal conduct by police officers, and after the accused had been unfairly inveigled into participating in criminal and corrupt conduct alongside the undercover operatives with whom he was working. 7. He argues that, in the absence of a controlled operations authority obtained pursuant to the Law Enforcement (Controlled Operations) Act 1997, the covert operation was unlawful because crimes were committed, and the evidence that flowed from the unlawful operation was thus illegally obtained. 8. I cannot accept that submission because it confuses the pretence at, or appearance of, criminality, with its actuality. 9. In his evidence during the course of the voir dire, DSC Herft deposed that he did not seek or obtain an authority for a controlled operation because there was no investigative operation planned that would involve the commission or attempted commission of any crime by any police operative, or the accused. The aim of the covert operation was to give the appearance of such things, without engaging in actual crime or corruption. In other words, what the police officers involved in the covert operation were engaged in was play acting. Of those present, only the accused thought what was occurring was real. 10. From having reviewed the evidence relevant to [REDACTED] January to July 2013 I have seen no evidence of the commission of any crime, or any attempt to commit a crime. Other than the accused, all of those involved were police officers playing a designated role. No real crime was committed. 11. On that basis, the submission that police operatives were engaged in criminal or corrupt conduct must be rejected. 12. [REDACTED] 13. [REDACTED] 14. [REDACTED] 15. [REDACTED] 16. [REDACTED] 17. There is no evidence to support a conclusion that any criminal act was committed by any police operative during the covert investigation into the accused in 2013. Accordingly, evidence produced by the investigation could not have been obtained as a consequence of unlawful or otherwise illicit conduct on the part of the police, regardless of the absence of any controlled operation authority. 18. The issue of unlawful conduct may be put to one side. 19. There can be no issue of unreliability based upon uncertainty as to the words said in any of the recorded admissions, that is, all admissions save for the apology made by the accused to DSC Herft when waiting for the service elevator in the hotel following his arrest, and in the police garage area when smoking a cigarette. The audio-visual recording provides reliable evidence of what was said and how it was said. 20. That precludes any issue of unfairness arising from uncertainty as to what was said. The accused cannot be disadvantaged by any contest between him and a police officer on that point. 21. The mere fact that admissions were recorded covertly does not necessarily render the recorded product unfair to an accused. That is so even where, as here, an accused person would not or may not have spoken or made admissions had he or she known that a recording was being made: Em v The Queen [2007] HCA 46; (2007) 232 CLR 67. 22. There can be no unfairness in the absence of the caution required to be given to suspected persons by investigating police engaged in official questioning since the accused was not under arrest when he spoke to UCO 6, and UCO 6 was not acting as an investigating officer at the time: s 139 of the Act. 23. The issue of unreliability then can only go to the deceitful nature of the undercover operation, the persistent nature of the questioning by UCO 6, and the promises made by him to the accused. Did those aspects of the matter operate such as to overwhelm the accused's freedom to speak such as to lead to impermissible unfairness? 24. [REDACTED] 25. [REDACTED] 26. Deceit and trickery does not necessarily mean however, that evidence obtained through such means will be unfair to an accused, or should be excluded from evidence. As the High Court held in R v Swaffield; Pavic v The Queen [1998] HCA 1; (1998) 192 CLR 159, at [35] per Brennan CJ: "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. 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." 1. Further, from Swaffield and Pavic, Kirby J noted, at [155], that: "There is nothing improper in these tactics where they are lawfully deployed in the endeavour to investigate crime so as to bring the guilty to justice. Nor is there anything wrong in the use of technology, such as telephonic interception and listening devices although this will commonly require statutory authority. Such facilities must be employed by any modern police service. The critical question is not whether the accused has been tricked and secretly recorded. It is not even whether the trick has resulted in self-incrimination, electronically preserved to do great damage to the accused at the trial. It is whether the trick may be thought to involve such unfairness to the accused or otherwise to be so contrary to public policy that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value. In the case of covertly obtained confessions, the line of forbidden conduct will be crossed if the confession may be said to have been elicited by police (or by a person acting as an agent of the police) in unfair derogation of the suspect's right to exercise a free choice to speak or to be silent. Or it will be crossed where police have exploited any special characteristics of the relationship between the suspect and their agent so as to extract a statement which would not otherwise have been made." 1. In the present case, whilst there has been trickery there has been no illegality or other impropriety. Nor do I think it could be said that there has been unfair derogation of the accused's right to exercise a free choice to speak or be silent. 2. The pressure placed upon the accused by UCO 6 was considerable, and the future held out to him was clearly regarded by the accused as an enticing one, but in my view the pressure and inducements were not such as to overwhelm the accused's free will. I do not conclude that the accused's freedom to speak was so impugned by the conversations he had with UCO 6 (built upon those with UCO 1) as to render it unfair to the accused to allow the Crown to use the evidence. 3. That is demonstrable in his ability to resist the same pressure and the same temptations in relation to two aspects of the matter where, notwithstanding the efforts of UCO 6 to have the accused agree to what the operative put to him, he continued to maintain the contrary position. 4. The accused continued firmly in his insistence that he had not been the anonymous caller to police on 14 September 1997, and nor had he exposed the deceased's body to facilitate the discovery of the remains. UCO 6 displayed the same disbelief in those statements by the accused, and repeatedly pressured him to acknowledge having done so; the accused remained firm in his denials. 5. That suggests that the accused retained his freedom of choice and exercised it. It is demonstrative of the accused's capacity to resist even firm pressure. 6. There is no basis to conclude that the respondent was vulnerable to anything other than being recorded making comments he chose to make, albeit comments that he would not have made had he known he was being recorded, and which could "do great damage to the accused at trial". 7. Returning to the language of s 90, I have concluded that nothing in the circumstances in which the admissions were made dictates unfairness to the accused such that the evidence of the admissions should be excluded. Sections 137 and 138 of the Evidence Act 1. The accused additionally relies upon ss 137 and 138 of the Act to argue for the exclusion of the admissions. Those provisions are in the following terms: "137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law." 1. Pursuant to s 137 the Court must exclude the evidence if its probative value is outweighed by the danger of unfair prejudice to the accused. 2. Assessment of the probative value of the evidence of the admissions to some extent depends upon the other evidence available to the Crown. I have summarised that evidence above. 3. As may be seen from that summary the evidence discovered by police prior to the suspension of the investigation in 2001 pointed strongly to the accused as the person responsible for the murder of Jodie Fesus, but it did not (at least in my judgment) amount to proof beyond reasonable doubt. 4. The accused had behaved in a manner inconsistent with that of a man whose wife was missing in worrying circumstances. He gave inconsistent accounts to others of events (such as what items of his wife's clothing and jewellery were in the house and when). He had knowledge of the location of the discovery of his wife's black wallet even though he had not been told where the wallet was found by those who discovered it. He (apparently falsely) claimed that the distinctive tattoo on the deceased's body was not that of his wife, and used that and a claimed fictitious birthmark as an excuse to see the deceased's face and neck. He made inquiries about his wife having been strangled in circumstances where he could not have known legitimately if she died by such means. He sought to discover whether strangulation left fingerprints, an extraordinarily odd inquiry for an innocent man to make. 5. All of this led to overwhelming suspicion, but fell short of proof to the criminal standard. 6. In those circumstances, admissions made by the accused to killing the deceased and disposing of her body are highly probative. 7. Whilst the accused argues that the admissions are unreliable and reveal nothing the accused could not have innocently known, I do not agree with that assessment. 8. The evidence is that the original police investigators were conscious of the need for discretion in what was said to the accused about inquiries connected with the murder and what those inquiries might have revealed. There is no evidence to establish or suggest that the accused was given any detail of the inquiries by police. 9. There is no evidence to suggest that the accused could have known or believed that his wife had been strangled through, for example, reading such detail in contemporary press reports. 10. That he appears to have known that the deceased was in fact strangled, a mechanism of death consistent with the opinion of Dr. Bottrill on autopsy, appears to be incapable of innocent explanation. It thus has very considerable probative value in my opinion. 11. The whole of the evidence of the admissions, particularly in circumstances where the tribunal of fact will be able to see the accused's manner as he made them, is also highly probative. Even under the significant pressure applied to him by UCO 6, the accused was capable of maintaining his position with respect to aspects of the circumstances surrounding his wife's death, such as his denial that he made the anonymous call to Triple 0. 12. The tribunal of fact will be able to assess the accused's demeanour at the relevant time and contrast it to his demeanour at other times, such as when demonstrating to UCO 6 the motion by which he had choked his wife, and when making the apologies uttered to DSC Herft in the hotel room. 13. The accused's demeanour when arrested is significant in my view; as are the apologies immediately proffered. 14. Having been arrested, the alteration in the accused's manner is also capable of having great probative significance. The tribunal of fact may well regard the accused's manner, as well as his words, as of great significance. 15. The evidence of the admissions, when considered (as any tribunal of fact must) in conjunction with the whole of the evidence led, is additionally capable of informing the assessment of the pre-2001 evidence. 16. Overall, the impugned evidence is of very high probative value. 17. Its probative value must be weighed against the possible prejudice. 18. Unfair prejudice is to be distinguished from the prejudice that typically flows from the admission of evidence which has the capacity to prove a charge against an accused person. Such evidence may always do the sort of "great damage" referred to in Swaffield and Pavic; but that is not the sort of prejudice that enlivens s 137 of the Act. 19. Having regard to the high probative value of the evidence, and those matters I have already considered in relation to the application of s 90 of the Act, I do not conclude that the probative value of the evidence is outweighed by the danger of unfair prejudice. 20. The accused contends that the Court should have regard to the asserted unreliability of the evidence in determining its admissibility pursuant to s 137, but that is not the task of this Court. The accused argues that the line of authority from the New South Wales Court of Criminal Appeal including R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 is wrong in law, and the Victorian approach to questions of probative value as articulated in Dupas v The Queen [2012] VSCA 328; 218 A Crim R 507 should be followed. 21. As was conceded by Queens Counsel for the accused, this Court is bound by the decisions of the NSW Court of Criminal Appeal unless and until dicta to the contrary emerges from the High Court. For what it is worth, in my opinion, the NSW approach is to be preferred to that of the Victorian courts. The approach taken in Dupas enlarges the function of the tribunal of law to such an extent that the role and function of the tribunal of fact is to some extent traduced. That is inconsistent with a criminal justice system founded upon a belief in a role for the community in the criminal justice system, by way of jury service. 22. With one exception, I would not exclude the evidence of the admissions pursuant to s 137. 23. The exception relates to some specific questions and answers in the interview of 8 July 2013 between DSC Herft and the accused. 24. I have concluded that, with respect to those portions of the interview which go to the personal beliefs of the interviewing officers and the subsequent response of the accused, there is limited, if any, relevance and only slight probative value. The opinion of an interviewing officer as to whether or not an interviewee is telling the truth is generally irrelevant, unless it receives a response from the interviewee which is of relevance. The responses of the accused here are little more than an engagement in an argument. 25. Even if there is some relevance to his answers that, in turn, makes the questions admissible, the probative value is slight. 26. By contrast, there is a degree of unfair prejudice in that a jury may place some weight in the opinion of an investigating officer which could lead to relevant prejudice. For that reason, I have determined that specific portions of the interview must be excluded, as required by s 137, when the probative value is outweighed by the unfair prejudice. 27. The portions which I regard as inadmissible are noted in the Court's orders. 28. Section 138 of the Act deals with evidence obtained through impropriety or in contravention of Australian law. 29. I have already considered the issue of illegality, or acts done in contravention of Australian law. The accused argues that what took place in the undercover operation amounted to criminal or corrupt conduct and thus s 138 is engaged. 30. I do not accept that argument. 31. Impropriety is a broader concept than that envisaged by a contravention of Australian law. It is one which is not defined by the Act. 32. In the pre-Evidence Act case of Ridgeway v The Queen [1984] HCA 66; (1984) 184 CLR 19, the High Court held at [37] that: "The stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances." 1. Applying Ridgeway, the NSWCCA said in Fleming v R [2009] NSWCCA 233 at [17] that: "Their Honours acknowledged that the effective investigation by police may involve subterfuge and deceit and may extend to the intentional creation of opportunities for the commission by a suspect of a criminal offence. Their Honours acknowledged that "a finding that law enforcement officers have engaged in ... clearly improper conduct will not, of course, suffice of itself to give rise to the discretion to exclude evidence of the alleged offences or of an element of it." Their Honours accepted that deceptive tactics, which do not involve illegal conduct, will ordinarily be legitimate." 1. Here deceptive tactics were utilized, but such tactics may on occasion be a necessary part of criminal investigation. The need for and use of such tactics must be balanced against the significant public interest in persons reasonably suspected of having committed a crime being brought to justice. 2. In Tofilau, Marks, Hill, Clarke v R [2007] HCA 39; (2007) 231 CLR 396 police investigating a murder used tactics [REDACTED]. The applicants were tricked by undercover operatives posing as members of a criminal gang into confessing to murder. The inducement to the applicants was that, to be a gang member and to profit from the gang's activities, the gang boss had to be given a truthful account of the murder under investigation. The applicants were told that the boss could make any problems "disappear". After a degree of pressure was placed upon the applicant Tofilau, he admitted to the murder. 3. The Court held that, although the confessions were obtained by deception, the confessions were voluntary. Arguments that the admissions ought to have been excluded for reasons of unreliability, unfairness and public policy were rejected. 4. In my view, there is no impropriety of the sort encompassed by s 138. 5. Even had I concluded that the conduct of the undercover officers amounted to impropriety, I would have found that the desirability of admitting the evidence outweighed the undesirability of doing so. 6. The evidence is highly probative of a very serious crime which has remained unsolved for almost two decades. The investigation was largely at a standstill and incapable of being otherwise advanced. It is in the public interest that the evidence against the accused be tested and assessed by a tribunal of fact, which will have the benefit of seeing and hearing the admissions, and which will be able to assess its probative value and reliability, with the assistance of instructions from the trial judge. 7. For those reasons, I regard the admissions made by the accused to UCO 6 and DSC Herft as admissible. 8. For clarity, I include in the reference to the admissions to DSC Herft the unrecorded admissions made near the service lift after arrest, and in the van dock at the Rocks Police Station. Whilst those admissions were not recorded, I accept the Crown's submissions concerning their making. orders 1. 1. The recordings and evidence [REDACTED] summarised in Ex. VD A is not, of itself, admissible. Should the accused wish to explore the circumstances [REDACTED] relevant questions may be asked of UCO 1 and other participating operatives. Such questions may be directed to any alleged inducements held out to the accused [REDACTED] for the purposes of the undercover operation in 2013. 2. 2. The recording of the meeting between the accused and UCO 6 on 8 July 2013 (Ex. VD CV 42) is admitted. 3. 3. The evidence of the recorded interview between the accused and Detective Senior Constable Sebastian Herft on 8 July 2013 (Ex. VD CV 43) is admitted, save for the following discrete portions (by reference to the transcript, aide memoire to the exhibit): 1. i. Q&A 170 – 174 inclusive; 2. ii. Q&A 184; 3. iii. Q&A 189 – 191 inclusive; 4. iv. Q&A 198 – 205 inclusive; 5. v. Q 259; and 6. vi. A 259 "Well, that was the main one". ********** 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: 24 February 2023