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that its integrity, on the face of it, cannot be impugned. It is a totally accurate verbatim account of
what took place, and it is a ruse and subterfuge designed to reflect what is in the defendant’s mind.
It will not succeed without there being present in the defendant’s mind something which can cause
him to react to it in a way which makes it evidentially probative.
In our submission it would be very contrary to the public interest if this ’phone call were not to be
admitted. It is very similar, in our submission, to the blackmail type of case where the police
intervene and make a ’phone call. It is very similar to many cases one has come across where
customs officers make telephone calls, either as undercover officers, or they get co-conspirators to
make telephone calls in order to get somebody to turn up at a particular place at a particular time
with drugs in order to -------
JUSTICE BLOFELD: I am sorry. I have listened to the telephone call itself. I cannot entirely
exclude from my mind what happened thereafter, because should the telephone call go, if it has any
probative effect, what thereafter happens, that the defendant then left the house and went where he
did go, is of no consequence to anybody because there is no way that the jury can understand it.
THE SOLICITOR GENERAL: That is right.
JUSTICE BLOFELD: Part and parcel of its probative effect is the actions thereafter. It is not like an
inadmissible conversation to some extent and then the murder weapon is found, and the murder
weapon goes in and the conversation does not, because the movements without the conversation are
almost unintelligible, not entirely, you might be able to glean some probative value, I suppose.
THE SOLICITOR GENERAL: The real thrust of the evidence, which is to show that the defendant
was responding to an existing relationship, would be lost and the relevance of the occasion of his
visit to Harrow the previous Thursday would be lost. Our submission is that when he decided to
leave the house, when he left the house, the circumstances in which he did, his return prior to his
arrest, he was always acting as a perfectly free agent in his own environment.
It would be impossible to say that the ’phone call, his actions taken on the basis of the ’phone call,
were in any way brought about by something that was unfair. We all know that the telephone system
is not a totally secure means of communication or by design or accident persons may overhear.
There is nothing mysterious or tricky about the ’phone calls made and, in our submission, there was
a position here of equality to the extent that the defendant, by exercising his own judgement, could
have either attached conditions or brought the thing to an end at any time. He chose not to do so.
JUSTICE BLOFELD: All right.
MR. TANSEY: My learned friend said that this is a ruse in the public interest. With respect, your
Lordship, that is just not right. If - because this is the basis on which the prosecution set out - they
have clear information on which they can arrest him, they have decided already that, in fact they are
going to search his premises, and therefore, as night follows day, they must therefore be intending to
arrest him very swiftly.
JUSTICE BLOFELD: I am not certain that follows.
MR. TANSEY: Well, my Lord, they must be pretty close to it. They have very much in their minds
a course of action which they are going to take and that must mean his arrest very swiftly. The
reason, it seems, for the speed of the action was the details of what happened to Oschenko
defecting had become more and more public and consequently the police had to act quickly before
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