Tofilau v The Queen

Criminal law – Evidence - Confessions and admissions - Scenario evidence - Undercover police officers posing as a criminal gang used scenarios involving staged criminal conduct to gain the trust of persons suspected of committing a serious crime - On condition that the person tell the gang boss the truth about his prior criminal activity, the gang boss offered that person membership of the gang with concomitant material benefits and the prospect of illegally avoiding prosecution for prior crimes - Whether the resulting confessions were admissible.

Criminal law – Evidence - Confessions and admissions - "Inducement rule" - History of the "inducement" requirement - Whether the promises made to the confessionalists were "inducements" - History of the "person in authority" requirement - Whether undercover police officers posing as gang members were "persons in authority" - Whether a person who represented himself as having the capacity to influence illegally a criminal prosecution was a "person in authority" - Whether a person must be known by the suspect to have actual lawful authority to influence the course of the prosecution to be a "person in authority".

Criminal law – Evidence - Confessions and admissions - "Basal voluntariness" - History of the "basal voluntariness" rule - Meaning of "voluntariness" - Whether the use of deception by the police obviated "voluntariness" - Whether inducements obviated "voluntariness" - Whether in the circumstances the confessionalists' wills were overborne - Relevance of analogy to "duress".

Criminal law – Evidence - Confessions and admissions - Discretionary grounds for exclusion - "Public policy" discretion - Whether the use of deception by the police was improper.

Criminal law – Evidence - Confessions and admissions - Discretionary grounds for exclusion - Unfairness discretion - Whether in all the circumstances it was unfair to the confessionalist to use against him a confession obtained by police deception.

Criminal law – Evidence - Confessions and admissions - Discretionary grounds for exclusion - Prejudice discretion - Whether the prejudicial impact of the circumstances in which the confession was obtained was greater than the probative value of the confession.

Criminal law – Evidence - Confessions and admissions - Discretionary grounds for exclusion - Reliability discretion - Whether the circumstances in which the confession was made rendered the confession inherently unreliable.

Words and phrases – "basal voluntariness", "duress", "free choice", "inducement", "oppression", "overborne", "person in authority", "right to silence", "scenario evidence", "scenario techniques", "unfairness", "voluntary".

Evidence Act 1958 (Vic) – s 149.