Abraham, Falk and Ivey v Tasmania
[2022] TASSC 63
•16 September 2022
[2022] TASSC 63
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Abraham, Falk and Ivey v Tasmania [2022] TASSC 63 |
| PARTIES: | STATE OF TASMANIA |
| v | |
| ABRAHAM, Paul James | |
| FALK, Simon Graham | |
| IVEY, Shane Mark | |
| FILE NOS: | 52/2018 |
| 503/2017 | |
| DELIVERED ON: | 16 September 2022 |
| DELIVERED AT: | Launceston |
| HEARING DATES: | 20, 21 July 2022 |
| JUDGMENT OF: | Jago J |
| CATCHWORDS: |
Criminal law – Evidence - Judicial discretion to admit or exclude evidence - Illegally obtained evidence - Particular cases - Trafficking charges arising from examination of parcels - Disclosure made by Australia Post employees to Tasmania Police was prohibited conduct - Australia Post employees acted outside performance of duties and not based on reasonable suspicion - Police acted carelessly as to the legitimacy of the provided disclosure – Police had no legal basis to seize or open the parcels – Further illegality when police returned parcels for delivery - Desirability of admitting the evidence is outweighed by the undesirability of doing so – Evidence will not be admitted.
Australian Postal Corporation Act 1989 (Tas) ss 90H, 90J(2) and (9)
Misuse of Drugs Act 2001 (Tas) s 29
Crimes Act 1914 (Cth) s 85W
Aust Dig Criminal Law [2686]
REPRESENTATION:
Counsel:
Accused Abraham: G Richardson Accused Falk: T Kovacic, B Ashman Accused Ivey: K Abercromby Respondent: J Ransom
Solicitors:
Accused Abraham: G A Richardson Accused Falk: Tasmanian Aboriginal Legal Service Accused Ivey: Tasmania Legal Aid Respondent: Director of Public Prosecutions
| Judgment Number: | [2022] TASSC 63 |
| Number of paragraphs: | 53 |
Serial No 63/2022 File Nos 52/2018
503/2017
STATE OF TASMANIA v PAUL JAMES ABRAHAM STATE OF TASMANIA v SIMON GRAHAM FALK
STATE OF TASMANIA v SHANE MARK IVEY
| REASONS FOR RULING | JAGO J |
16 September 2022
1 The accused are charged with one count of trafficking in a controlled substance, namely methyl amphetamine. The trafficking is alleged to have taken place between on or about 14 September 2017 and on or about 11 October 2017. The basis of the allegation of trafficking is that the accused imported the substance into Tasmania with the intention of selling it, or in the belief that another person intended to sell it. The allegation relies on the extended definitions contained in ss 3(1) and (2) of the Misuse of Drugs Act. The State argue the accused were engaged in a continuous activity of a "commercial and systematic kind, otherwise known as a Giretti basis for trafficking" (VD 4).
2 The Crown case is a circumstantial one. It is based upon the interception and opening by police of four Australia Post Express Post packages, addressed to either Elizabeth Street, Devonport or Drake Street, Devonport, all parcels having been forwarded from addresses in Victoria. Upon examination of the respective parcels, they were found to contain methyl amphetamine. Subsequently a search warrant was obtained and a search was conducted at Elizabeth Street, Devonport on 15 October 2017. At that time, each accused is alleged to have been present at the address.
3 Each accused objects to evidence arising from the examination of the postal item, which was provided to Tasmania Police by an Australia Post employee and evidence subsequently obtained as a consequence of the search conducted on 11 October 2017. The basis of the objection is that the process of the Express Post parcels being handed to Tasmania Police and subsequently examined and then returned to the post, was attended by illegality in a number of respects. It is submitted that accordingly, the provisions of s 138 of the Evidence Act are engaged. That section provides that evidence that was obtained improperly, or in contravention of an Australian law, or 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 that way.
4 It is well established that the onus of proof in relation to s 138 rests on the accused to establish that the evidence was obtained improperly, or illegally. Once that onus has been discharged, it is for the Crown to satisfy the court that the desirability of admitting the evidence outweighs the undesirability of admitting it: R v Salem (1997) 96 A Crim R 421. If the accused discharges his onus, the evidence cannot be admitted unless the Crown satisfies the Court as aforementioned. The section then involves an evaluative exercise and a determination of whether the desirability outweighs the undesirability; Tasmania v Salter [2007] TASSC 33 at 15. The evidence is to be admitted or excluded by an application of factors that need to be balanced and weighed, calling for judicial judgment. In exercising that judgment, I am required to take into account the matters set out in s 138(3), although those are not exclusive nor exhaustive considerations.
Illegality
5 The State called evidence on the voir dire. It was also agreed that the Court could have regard to the Crown papers generally for the purpose of this argument. As a consequence of evidence given
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on the voir dire and disclosed on the Crown papers, the State conceded that the evidence was tainted by illegality, but it is relevant to examine the extent of the illegalities perpetrated in order to undertake the exercise required by s 138.
6 The background to the matter is as follows. In September 2017, Mr Caleb Kahlil was working as the Acting Manager at Australia Post, Devonport. At a point prior to 14 September 2017, he had received information from postal staff who had been delivering mail in the area of Drake Street, Devonport and Elizabeth Street, Devonport (the two addresses being around the corner from each other), that there was unusual activity happening in respect to the mail being delivered to those addresses. In particular, the information he received was that persons appeared to be coming from Elizabeth Street, Devonport to collect packages that were being delivered to Drake Street, Devonport. Mr Khalil said in his evidence that he had concerns there might be something in the packages that police might be interested in like illegal drugs. (VD 30). On 14 September 2017, Express Parcel Post number ending 2099 arrived in the Devonport Mail Centre. This parcel was addressed to Bobby Mogford at Drake Street, Devonport. Because of the information he had previously received, and because his state of mind was there may be illegal drugs in the package, Mr Kahlil made a telephone call to a police officer, Constable Andrew Maingay.
7 As it happened, Constable Maingay was on holidays in Queensland. Mr Khalil gave no evidence as to what he told Constable Maingay. Constable Maingay's evidence was he was told by Mr Khalil that "he had suspicions about a parcel and a delivery". (VD 67). He, in turn, contacted the Devonport Drug Investigation Service. He spoke to Senior Constable Orme. In his evidence on the voir dire, Senior Constable Orme said he was in the room when this phone call occurred, but did not suggest he had spoken directly to Constable Maingay. He provided no evidence as to what information may have been conveyed by Constable Maingay. In any event, later on 14 September 2017, Senior Constable Orme and Sergeant Shea attended the Devonport Mail Centre and collected the Express Parcel Post package 2099 from an Australia Post employee, a Mr Craig Martin. The package was not collected pursuant to any warrant. According to Senior Constable Orme the procedure which gave rise to the collection of the package was "from Standard Operating Procedures within the Tasmania Police Manual and the agreement with Australia Post".(VD 87) The package was unopened at the time Mr Martin provided it to the police officers.
8 The package was taken to the Devonport Police Station and was opened. No police officer gave any evidence as to the legal basis they considered they were acting pursuant to when they opened the package. The contents of the package were subsequently examined by a forensic scientist. The results disclosed the package contained methyl amphetamine. This package was retained by Tasmania Police.
9 As a consequence of discovering that the package contained methyl amphetamine, police placed what has been referred to as a "mail stop" on the address of Elizabeth Street, Devonport. The mail stop was in the following terms:
"Key post has received a mail stopper request from Tasmania Police, which
relates to all letters and express post articles (except business mail).
Please intercept all relevant articles at the following address for:
• Bobby Mogford • Jack Sims • Jack Wilson • Anyone with surname of Abraham • Anyone with surname of Walker Elizabeth Street, Devonport, TAS, 7130
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For the period commencing 21/09/2017 and ceasing on 19/10/2017.
If any mail articles are detected during this process, please notify Detective Sergeant Matt Shea or (phone number) or Detective Senior Constable Steve Orme (phone number) on the day of receipt to report. Please hold for Tasmania Police examination if required, otherwise release."
10 No evidence was given by any police officer, nor is there any evidence contained within the Crown papers, to explain why the mail stop was issued in respect to Elizabeth Street when the first parcel which had been collected from Australia Post had been addressed to Drake Street, Devonport. Although the evidence of Mr Khalil suggests a connection between these two addresses, there is no evidence that such information had been conveyed to any member of Tasmania Police or that a member of Tasmania Police independently possessed such information.
11 It seems this mail stop process arises as a consequence of a memorandum of understanding that exists between Australia Post and Tasmania Police. I have not been referred directly to that memorandum of understanding, nor have I been referred to any legislation which authorises the use of such a mail stop. No counsel was able to refer me to any authority where there had been a consideration of the legality of such a process. Tendered on the voir dire was an extract from the Tasmania Police Manual. Relevantly s 16.2.4 provides;
"16.2.4 The Australian Postal Corporation Act 1989 authorises the disclosure of
information or a document under the following circumstances:(3) the employee of Australia Post may disclose information if the person is an authorised discloser and the information is a reasonable suspicion that an article consists of or contains anything that may be evidence of an offence;
…
(9) Any article in the course of the post known or suspected to contain a drug related substance, may be withdrawn from the postal system by means of a Tasmania Police Property Seizure Notice
(10) Details shown on the property seizure notice must include the full name and address as shown on the front of the article. All suspect articles must be taken from the Australia Post premises and cannot be opened until so removed.
…
(12) All other articles not suspected to contain a drug related substance and withdrawn from the course of the post, are only to be released on the issue of a warrant."
12 It does not appear to me that that section of the Tasmania Police manual makes any provision for the issuing of the mail stop. Nevertheless, it seems it was a process known to both organisations. Certainly, the evidence from the various Australia Post employees was that it was their understanding that if any mail arrived for the address of Elizabeth Street, Devonport, their obligation was to provide it to their manager who would notify Tasmania Police, or notify Tasmania Police themselves, given the issuing of the mail stop.
13 On 28 September 2017, a package addressed to Shane Kelly at Elizabeth Street, arrived at the Devonport Mail Centre. It was an Express Post package number ending 5096. Pursuant to this understanding, the manager of the Devonport Mail Centre contacted Police. The package was collected that day by Senior Constable Melissa Palmer. The package was received by Police in an unopened state. It was subsequently taken to the Devonport Police Station and opened. A sample was taken from the contents of the package and subsequently forensically analysed. It contained methyl
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amphetamine. After police had removed a sample from the package, the package was resealed and
was returned to Australia Post that same day to be delivered.14 On 4 October 2017, another package addressed to Shane Kelly at Elizabeth Street, Devonport arrived at the Devonport Mail Centre. The number of this Express Post parcel ended 2009. Again, an Australia Post employee, a Mr Douce, contacted police in accordance with what he believed to be his obligation pursuant to the mail stop. The package was collected, again in an unopened state by Senior Constable Jason Dicker. The package was opened at the Devonport Police Station and a sample taken from the contents. Subsequent forensic examination disclosed the package contained methyl amphetamine. After the sample was taken, the package was resealed and returned to Australia Post on 4 October 2017. The package was subsequently delivered.
15 On 10 October 2017, a further Express Post package was received at the Devonport Mail Centre, addressed to Shane Kelly at Elizabeth Street. The number of this package ended 8099. Again, pursuant to the mail stop, employees of Australia Post contacted Detective Dicker. Detective Dicker collected the parcel in an unopened state. It was taken to the Devonport Police Station and opened. A sample was taken. Subsequent forensic examination revealed that it contained methyl amphetamine.
16 On this occasion, the sample that was taken was of some size and it was replaced in the package with an inert substance. Police also added to the package some UV powder, which was brushed on the insides of the package before the package was resealed. The UV powder was added in the hope that it may subsequently disclose some forensic evidence. The package was returned to Australia Post. It was subsequently delivered by an employee of Australia Post to Elizabeth Street at 11.00 am on 11 October 2017. It was shortly after that delivery that the warrant was executed at the address.
17 The defence asserts that the events outlined involved illegal conduct on the part of the Australia Post employees and Tasmania Police.
Illegality re Australia Post
18 In terms of the Australia Post employees, the asserted illegality relates to various provisions of the Australian Postal Corporation Act 1989 (Cth) (the Act), and, in particular, Division 2 of the Act, which places limits on the use and disclosure of information and documents obtained by employees of Australia Post.
19 Reference was also made during argument to Division 3 provisions. Division 3 deals with limits on opening and examining articles. In my view, there is no evidence to suggest there has been a contravention of any of the Division 3 provisions. There is no evidence that any Australia Post employee opened nor examined any of the Express Post parcels prior to contacting Tasmania Police.
20 Section 90H of the Act provides:
"Prohibition on use or disclosure by current employees
(1) For the purposes of this section, the use or disclosure of the information or document by the person is prohibited conduct if the use or disclosure is not permitted by section 90J, 90K or 90L.
(2) If the person engages in prohibited conduct, the person commits an offence
punishable, on conviction, by imprisonment for a period not exceeding 2 years.(3) For the purposes of a prosecution for an offence against subsection (2) relating to
the use or disclosure of the information or document:5 No 63/2022
(a) the use or disclosure is to be taken not to have been permitted by section 90J, 90K or 90L unless the defendant presents or points to evidence that suggests a reasonable possibility that the use or disclosure was permitted by a provision (the authorising provision ) of one of those sections; and (b) if the defendant does so produce or point to evidence--the use or disclosure is to be taken to be permitted by the section that contains the authorising provision unless the prosecution proves, beyond reasonable doubt, that the use or disclosure was not permitted by the authorising provision."
21 In essence, this section provides that a person who is an employee of Australia Post who engages in prohibited conduct, as defined in the section, commits an offence. Prohibited conduct occurs if the person uses, or discloses, information or a document, if the information or document is or relates to an article or some or all of the contents or substance of an article that has been carried by post or is in the course of the post; in circumstances where the information or document is required or received by a person in the course of his employment as an employee of Australia Post, unless the disclosure is authorised by the provisions of 90J, 90K and 90L of the Act.
22 It seems to me two of those provisions have potential application. Section 90J(2) provides that the person may disclose the information or document in the performance of duties as an employee of Australia Post. There is no dispute all persons who made the disclosures to Tasmania Police were employees of Australia Post. Duties is not defined in Division 1 of the Act, but the function of Australia Post, and its employees is to provide a postal service. Section 32 of the Act sets out the terms and conditions applying to that service. Those terms and conditions operate in a manner akin to the provisions of a contract. Employees of Australia Post are obligated to act in accordance with such terms and conditions.
23 Section 57.1 of the Australia Post Terms and Conditions provides inter alia:
"The following prohibited goods shall not be lodged for carriage by post and are
prohibited from carriage by post:… 57.1.2 any poison, drug or medicine except as permitted by cl. 58 (cl. 58 has no application to the circumstances of this case); …
57.2 If Australia Post believes on reasonable grounds that an article lodged for carriage by post consists of or contains prohibited goods then Australia Post is not obliged to either deliver the article to the addressee or return the article to the sender but shall deal with the article as follows: … 57.2.3 if clauses 57.2.1 and 57.2.2 do not apply (and they do not here) and the article constitutes, or is reasonably suspected of constituting evidence of a criminal offence, it may be provided to the appropriate police force…[my commentary]."
24 Tendered on the voir dire was an extract from the Standard Operating Procedure 19, issued by the Corporate Security Group, an arm of Australia Post which provides instruction to Australia Post employees as to the manner in which their duties and obligations are to be performed. Clause 5 deals with "procedures in relation to domestic mail" and specifically refers to the abovementioned clauses of the terms and conditions.
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25 On the face of it, it is arguable that the exception to the limits on disclosure provided by s 90J(2) is drawn in very wide terms and disclosure in the performance of duties as employees may well have been intended to cover all disclosures – including unauthorised disclosures – provided that they were made for legitimate and honest reasons and in furtherance of the employee's obligation to act in accordance with terms and conditions. However, if Parliament had intended s 90J(2) to be construed in that manner, it would have been unnecessary to expressly limit the disclosure of information relating to articles reasonably suspected of being the subject of an offence to only authorised disclosers, as is provided by s 90J(9).
26 In my view, s 90J(2) should be construed as authorising only such disclosures as the employees duties properly permit the employee to disclose. In other words, any such disclosure must be within the authorised scope of the employment. Here, the respective employees at the Devonport Mail Centre would have been authorised to contact an authorised discloser to advise of their suspicions, and have the authorised disclosure determine whether contact with Tasmania Police was appropriate, but they were not in the performance of their duties, authorised to make the disclosure to Tasmania Police directly themselves. The interpretation of s 90J(2) in this manner is consistent with rules of statutory construction that general terms must be read in the context of the overall statutory scheme. Here, in my view, to give s 90J(2) the very broad construct that at first glance it might possess, is to ignore, and in some instances make otiose, the balance of s 90J which provides for quite specified exceptions to the limits on disclosure. The Act tightly regulates the disclosure of information so as to protect the integrity of the postal system and the privacy of its users. More ambiguous sections within the Act should be interpreted in manner which lends support to such legislative intent.
27 Moreover, I note that in respect to the last three Express Post parcels which were apparently disclosed to Tasmania Police as a consequence of the mail stop notice, there was not strict adherence to the terms of the notice. If I accept the mail stop notice was binding on Australia Post employees, and by acting in accordance with it, they were acting in the performance of their duties as employees, there was nevertheless a failure to act strictly in accordance with its terms. The mail stop was expressed to be in respect of specified names at the address of Elizabeth Street, Devonport. The last three Express Post parcels were in the name of Shane Kelly, Elizabeth Street, Devonport. That is not a name that was listed on the mail stop. In my view, if compliance with the mail stop is to authorise a disclosure on the basis of s 90J(2), then the compliance must be strict. This is consistent with the intent of the provision generally, that disclosures are only permissible in expressly limited circumstances, and otherwise the prohibition on disclosure remains paramount. An employee acting outside of strict compliance with duties cannot properly be said to be acting in the performance of duties. The mail stop was expressed in terms that limit the authority to intercept the mail to specified names at the relevant address. Any authority that arises to intercept mail as a consequence of the mail stop did not extend beyond those names at that address. In my view then, the disclosure is not saved by the authorisation provided for in s 90J(2).
28 I add one further point. Even if acting within the terms and conditions outlined above could be said to be acting in the performance of duties such as to authorise the disclosure of the first parcel to Tasmania Police, I do not accept the evidence establishes Mr Khalil was acting in accordance with terms and conditions clause 57.2.3. That clause requires the employee to "reasonably suspect" the article constituted evidence of a criminal offence. Mr Khalil's evidence was he contacted police because he believed there might be something in the parcel police might be interested in because "something was going on …with someone collecting mail from that address…we had concerns that it was some sort of mail theft or…something possibly in there...possibly drugs" (VD 30). This information had apparently been given to him by other employees of Australia Post. There was no evidence as to when this information had been conveyed to him, the precise nature of the information conveyed, the experience of the person who conveyed the information, when the observations that grounded the information had been made, whether observations had been made on only one occasion or over a period of time, whether the parcel or parcels that had allegedly been taken from Drake
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Street, in any way resembled in shape or size, the parcel that he disclosed to Tasmania Police. The evidence given by Mr Khalil that there were concerns about "someone collecting mail from that address" did not contain sufficient particularity to delineate between suspicion about behaviour that might be criminal and a neighbour simply collecting the mail by arrangement. I note there is evidence in the Crown papers from the tenant of Drake Street which confirms he did not authorise anyone to collect mail on his behalf, but of course, this was not known to Mr Khalil at the time he disclosed the information to Tasmania Police. There was in my view a paucity of evidence, and certainly insufficient evidence, to ground a reasonable suspicion that the parcel he disclosed might constitute evidence of a criminal offence. Even though a suspicion is less than a belief, a reasonable suspicion nevertheless requires some supporting material. There must be a rational connection between the supporting material and the suspicion. Mere curiosity or speculation about the existence of the fact is not the same as a suspicion that reasonably exists. (R v Nguyen (2013) 117 SASR 432). There is no authorisation for the disclosure made by Mr Khalil which arises from the operation of s 90J(2).
29 The other provision with potential application is s 90J(9). That provides that the person may disclose information where reasonably necessary for enforcement of criminal law in the following circumstances:
"(a) the person is an authorised discloser; and (b) the information is a reasonable suspicion that an article consists or contains anything that is or may be evidence of an offence."
Arguably paragraph (b) is applicable to the circumstances of this case. However, there is no evidence to suggest that any of the Australia Post employees who were involved in disclosing the material to Tasmania Police were authorised disclosers. Again, this section cannot save the disclosure being made contrary to s 90H of the Act.
30 There is another provision of the Act which may have relevance and that is s 90Z. That section provides as follows:
"Dealing with dangerous or deleterious things
If an employee of Australia Post knows, or has reasonable grounds for suspecting, that the article contains something that is or could be explosive, dangerous or deleterious, the article may be dealt with in accordance with the applicable provisions of the terms and conditions agreed or determined under section 32."
31 The State do not seek to argue that the operation of that provision can save the disclosure here because of the ruling made by Brett J in Tasmania v Melick [2019] TASSC 19. His Honour ruled that illicit drugs being transported in the mail did not fall within the ambit of that definition. Brett J noted:
"In general terms, it can be accepted that such drugs are capable of being deleterious, depending on the circumstances of their use. However, they are not capable of being immediately harmful in the nature of something which is explosive or dangerous. The provision must be interpreted within the context of the overall legislative scheme, which, as already noted, seeks to balance the right to privacy of those who use the post with the need for investigation and disclosure of the contents of the post in appropriate circumstances … In my view, illicit drugs of the type relevant to this case, do not fall within the ambit of those provisions."
32 The State did not seek to argue that such an interpretation should not be applied here. I need not consider the application of this provision further.
33 I am satisfied, therefore, that the disclosure of the existence of the four Express Post parcels to Tasmania Police and the circumstances which gave rise to Australia Post employees having suspicion as to the mail activity associated with that address, is a breach of s 90H of the Act because it was not
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authorised by any relevant provision. Had the disclosures not been made to Tasmania Police by the Australia Post employees, the parcels would never have come into the possession of Tasmania Police and the discovery of methyl amphetamine within the parcels would not have eventuated.
Illegality re Tasmania Police
34 Defence argue, however, that the contraventions of the law did not stop there, and that the behaviour of Tasmania Police was also tainted by illegality. It is submitted that, in respect to the first parcel, even once it had been disclosed to Tasmania Police they had no legal basis to open it, and the illegality associated with opening it taints the entirety of the evidence, as it was the discovery of methyl amphetamine in that parcel which gave rise to the issuing of the mail stop and the disclosure of the further three parcels. The evidence is that at the time Tasmania Police received the disclosure and collected the parcel, the only information which had been provided to them was as set out at para 7 above. There is no evidence to suggest any member of Tasmania Police was told anything that might ground a reasonable belief the parcel contained illegal drugs. Indeed, as the evidence stands, there is no suggestion by any member of Tasmania Police that any information at all was given to them to suggest illegal activity. Section 29 of the Misuse of Drugs Act provides:
"29 Power to seize controlled substances, &c.
(1) In this section,prescribed belief means a reasonable belief that a controlled substance or other thing in relation to which an offence under this Act has been committed is –
(a) in the possession of a person in any place; or
(b) on or in a conveyance in any place; or
(c) on an animal in any place.
(2) A police officer who has a prescribed belief may, without warrant and with such assistance as the police officer reasonably considers necessary, take such one or more of the following actions as may be applicable in the circumstances:
(a) search the relevant person and detain that person for the purpose of
carrying out the search;
(b) search the relevant conveyance or animal and detain it for the purpose of
carrying out the search;
(c) seize the relevant conveyance or animal;
(d) seize anything that may be evidence of an offence under this Act.
(2A) However, subsection (2) does not apply to private premises unless the police
officer forms the prescribed belief only after having lawfully entered the premises.
(3) The police officer, and any person assisting the police officer, may use such force
as is necessary and reasonable in the circumstances.(4) A police officer who searches or is empowered to search a person pursuant to subsection (2) or any other Act may arrest the person without warrant if the police officer reasonably believes that the person has committed an offence under this Act.
(5) In this section, a reference to a search of a person includes a reference to any
clothing worn by the person and anything that may be in the person's possession."9 No 63/2022
35 The meaning of reasonable belief is well understood. A belief is something more than mere suspicion, but less than actual knowledge based on proof. There must be grounds for the belief, but certainty and proof are not required. The point was made by the High Court in George v Rockett
[1990] HCA 26, 170 CLR 104 at 14: "The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture."
Section 29 of the Misuse of Drugs Act did not provide Tasmania Police with authority to open the parcel. It was reasonable given an Australia Post employee disclosed the parcel to Tasmania Police for further investigations to be conducted, such as the use of a drug dog to determine whether further examination of the parcel was warranted, but based on the information in possession of Tasmania Police at the time they collected the parcel, it was not lawful for them to open it without first conducting investigations which might properly give rise to a "prescribed belief".
36 I am conscious of what Brett J said in Melick at 16:
"As far as the Tasmania Police officers were concerned, once they took possession of the article, they were required to comply with the law of Tasmania and their duty as police officers. In my view, the fact that the Australia Post employees may have acted unlawfully in handing over the article, does not detract from the obligations of the Tasmania Police officers to deal with the drugs as evidence of an offence, once those drugs had come into their possession. I am not satisfied that the Tasmania Police officers acted in contravention of the law or improperly by doing so."
37 But the situation here is very different. The disclosures made to Tasmania Police did not, as the evidence stands, suggest the first parcel contained drugs and importantly the parcel had not been opened so as to reveal drugs, as has occurred in Melick. It is, in my view, a most important point of distinction. I make a similar comment in respect to Evans J's finding in Tasmania v Salter [2007] TASSC 33. In that case His Honour was satisfied s 29 Misuse of Drugs Act did authorise police seizing and opening a parcel from Australia Post, but that was against a background of police being aware that on prior occasions packages posted to the address had contained drugs. Here, there is no evidence police had any prior information to suggest drugs had been delivered to either Drake Street or Elizabeth Street, such that the opening of the parcel could be justified by a "prescribed belief".
38 Before Tasmania Police breached an individual's privacy by opening mail addressed to them, they were required to have lawful basis for doing so. A reasonable belief that the parcel may contain drugs was necessary to ground a warrant or to authorise the opening of the parcel pursuant to s 29 Misuse of Drugs Act. No evidence was given by any police officer on the voir dire that he possessed such a state of mind. Nor is there anything disclosed in the Crown papers that would reasonably permit that inference to be drawn. Indeed, evidence which explains why Tasmania Police opened the first parcel, the legal basis they believed they were acting pursuant to, and why they then issued a mail stop for a different address to the one on the first parcel, is all but non-existent. I am unable to identify any legal basis that permitted Tasmania Police to open the first parcel. Counsel for the State concedes that on the evidence, such does not appear to exist.
39 Defence argue the behaviour of Tasmania Police also involved a further illegality, because the various Tasmania Police officers intentionally caused to be carried by post the last three Express Post parcels, which they knew contained methyl amphetamine, by returning them to the Australia Post
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employees and directing they be delivered. It is submitted such behaviour was a breach of s 85W
Crimes Act 1914 (Cth). That section provides:
"Causing controlled drugs or controlled plants to be carried by post
(1) A person shall not intentionally cause to be carried by post an article that consists of, encloses or contains a controlled drug, or a controlled plant, within the meaning of Part 9.1 of the Criminal Code."
40 The evidence establishes that in respect to the last three parcels Tasmania Police returned them to Australia Post and requested they be delivered, although there is some suggestion in the evidence, particularly in the cross-examination of Mr Douce, that the specific direction to the employee who delivered the parcel came from his manager and not a member of Tasmania Police. I do not consider this matters. I am satisfied the causative act which gave rise to the delivery was the return of the items to Australia Post with a request for delivery. I note a controlled delivery of such parcels could have been authorised by the provisions of the Police Powers (Controlled Operations) Act 2006, but there is no evidence that they were.
41 The prosecution argue Tasmania Police did not breach s 85W because of the operation of s 85Z of the Crimes Act which provides:
"Articles carried by post to be taken to be Australia Post's property
For the purpose of any prosecution for an offence in relation to an article carried by post or under the control of Australia Post, the article shall be taken to be the property of Australia Post."
42 I do not accept this submission. The breach of s 85W arose when members of Tasmania Police, knowing the parcels contained methyl amphetamine returned the parcels to Australia Post and requested they be delivered to the addressee. The articles may have become the property of Australia Post upon their return to them, but the causative act was the return of the item and request to deliver. This was done by Tasmania Police. There is no evidence any member of Tasmania Police told any Australia Post employee what was in the parcels so that Australia Post may decline to deliver without protective measures being put in place. The knowledge of what was in the parcels was entirely within the domain of Tasmania Police. Accordingly, in my view, the officers' placement of the articles back into the mail system for delivery was in breach of s 85W of the Crimes Act. It is relevant that there exists legislation which authorises controlled mail deliveries, in circumstances such as this, and which contemporaneously provides a number of checks upon police conduct, which could have been utilised, but which was not.
The Balancing Exercise
43 The findings I have made mean, pursuant to the provisions of s 138, that this evidence must be excluded unless I determine that "the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in that way." It is well established that the party seeking to tender the evidence, in this case the prosecution, has the onus of satisfying me that the evidence should be admitted having regard to the balancing exercise specified in the section: Kadir v The Queen [2020] HCA 1, 267 CLR 109. I must take into account the matters set out in s 138(3), although these considerations are not exhaustive, as well as any other relevant consideration. In my view, the following are important considerations.
44 The evidence has a high, although not overwhelming, probative value. The discovery of the contents of the parcel gave rise to the issuing of the search warrant. The presence of the accused at the residence at the time of the search is an important piece of circumstantial evidence. Indeed, the presence of the accused at the address of Elizabeth Street on the day of the search appears to be the
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main evidence directly linking two of the accused to the address. There is some identification evidence linking the third accused to the address at the time some of the parcels were delivered. There is nothing about the parcels themselves which link the accused to the residence, or which link the accused to the contents of the parcel. The capacity of that evidence to rationally affect the probability of the existence of a fact in issue, namely whether any of the accused imported the drugs into Tasmania, certainly exists, and in the context of the other evidence, is high. That being said, I also note the Crown's case is largely a circumstantial one. Appreciating that I have not had the benefit of seeing and hearing the evidence in full, it seems to me there is a rather obvious hypothesis consistent with innocence, and that is, that the person/s to whom the parcels were addressed were criminally responsible for the importation. The presence of the accused at the residence on the day of the search, perhaps in possession of illicit substances, is arguably consistent with personal use and nothing more, and is not evidence which necessarily excludes a hypothesis consistent with innocence. The probative value of the evidence needs to be considered with that in mind.
45 The evidence is extremely important in the proceedings. If the evidence is not admitted, then the Crown case will most likely fail. The prosecution case, as I understand it, rests substantially upon the admission of the evidence.
46 The evidence relates to proof of a charge of trafficking in methyl amphetamine, constituted by an act of importing the drugs into Tasmania with the intention for sale. It relates then to an allegation of a very serious offence. The alleged conduct involved the potential dissemination of an illegal drug into the community. Regardless of the level of commercial activity that may have been involved in the conduct, it must be viewed as an inherently serious allegation. There is a public interest in the prosecution of such crimes. Tasmania, as an island state, is vulnerable to the importation of illegal drugs via postal articles. A robust and pragmatic view of the working relationship that needs to exist between Australia Post and Tasmania Police is warranted.
47 The extent of the illegalities which tainted the obtaining of the evidence, firstly by the Australia Post employees and secondly, by Tasmania Police is significant and the contraventions which occurred are serious. The behaviour of the Australia Post employees breached laws designed to protect the rights and privacy of citizens utilising the services of Australia Post. The contraventions arose in part at least because of failures within Australia Post to clearly instruct employees as to their obligations around circumstances such as this. It was obvious from the evidence given by the Australian Post employees that they were of the view that if they suspected any parcel involved illegal drugs, they should alert their manager who, in turn, would alert Tasmania Police. It is relevant that such provision of information is authorised by the Act, but only in circumstances where the person is an authorised discloser. None of the Australia Post employees seemed to have an understanding of who, within the Devonport Mail Centre, may have been an authorised discloser. All employees seem to operate on the basis that they should refer their concerns to their manager. I accept Mr Kahlil, who was acting in the role of manager at the time of the first parcel intervention, was acting in accordance with his understanding of what he was required to do in alerting Tasmania Police to his suspicions. He followed the procedures he believed were applicable to him. Any illegality attaching to the behaviour of the Australia Post employees is, I accept, mitigated by the fact they were endeavouring to comply with their Standard Operating Procedure. I could not conclude their conduct was deliberate or reckless, but rather I view it as careless, brought about by a flawed understanding as to what should occur in such a situation. Having said that, I reiterate my comments that the foundation for the suspicion Mr Khalil said he possessed was rather spurious and more care ought to have been exercised before any contact was made with police.
48 For completeness, I note argument is advanced by the defence that Australia Post should have had judicial notice of the difficulties associated with their standard operating procedures because of other cases that have occurred within this jurisdiction. To that end, Counsel refer to the decisions of Hansen and Brown. The decision of Hansen was an oral ruling given to the parties only on 21 June
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2017, so some three months prior to the matters that gave rise to the issues here. It was not a published ruling and there is no reason to think that the decision of Brett J would have been disseminated to any degree. The matter of Brown was very similar to Hansen. It also involved an oral ruling, given on 8 August 2017 once the trial had commenced. Again, it was not a published ruling and there is no reason to consider it would have been disseminated to any degree. It is very difficult given the circumstances of the Hansen and Brown rulings to consider that Australia Post would have known about the rulings and deliberately failed to acknowledge them and re-issue directions to staff in accordance with them. Deterring Australia Post, in my view, is not a weighty consideration. They are not directly related to the prosecution and have no obvious interest in it. I accept that ensuring compliance with important laws designed to protect the rights and privacy of citizens utilising the service of Australia Post is a meritorious consideration, but it has to be balanced against all other relevant factors.
49 In my view the behaviour of Tasmania Police involved quite grave contraventions of the law. I do not go so far as to suggest there was a calculated disregard of the law, but they should have been far more conscientious to ensure their compliance with the law. They opened the first parcel without lawful authority. They must have appreciated the sparsity of information they had. They had the means to conduct further investigations without breaching the law, but instead acted to open the parcel. Upon discovering methyl amphetamine in the parcel they arguably properly held a prescribed belief that drugs were being sent to an address at Drake Street (being the address on the first package) but there is no evidence which explains why they then issued the mail stop for Elizabeth Street. Mr Khalil may have possessed information linking the two addresses but there is no evidence such information was passed to Tasmania Police. Even if I was to infer, as a matter of common sense, although given the state of the evidence I am not of the view it would be reasonable to do so, that Mr Khalil told Tasmania Police about a person coming from Elizabeth Street to collect mail from Drake Street, I repeat the observations I made at paragraph 28 above. There was nothing about the information Mr Khalil possessed which would suggest criminal activity in preference to a neighbour collecting mail by arrangement. There is no evidence Tasmania Police spoke with any resident of Drake Street until 16 November 2017, well after the search and the obtaining of the impugned evidence. Additionally, no evidence was given as to why police identified the names they did on the mail stop. The last three parcels were addressed to Shane Kelly, a name not referenced in the mail stop. Despite these anomalies, Tasmania Police still received and opened the last three parcels and then arranged for the delivery of the parcels.
50 All officers were members of the Drug Squad. They should have appreciated the limitations of their powers or at the very least made the effort to clarify their powers if uncertainty existed. I am of the view that they simply did not give sufficient thought nor attention to the legality of what they were doing, and to that end were reckless. It is relevant that the information about the suspicious parcels was provided to Tasmania Police and was not sought out by them, but once they had received the disclosure they had an obligation to ensure they acted lawfully. Up until the point Tasmania Police opened the first parcel, there was no basis for them to reasonably suspect, let alone believe, drugs were present. The opening of that first parcel without lawful justification then set in train a chain of events which procured evidence against the three accused which may not have been obtained had the conduct been legally undertaken. As at the date the first parcel was opened, there is no evidence to suggest the police held any belief, or suspicion, that the address of Elizabeth Street, or indeed any of the three accused were involved in illegal drug activity. There is no evidence to suggest at that point they would have been successful in obtaining a warrant or lawfully searching the premises or indeed any of the accused. It was the unlawful conduct of opening the first parcel and discovering the contents, which ultimately gave rise to them issuing the mail stop and obtaining the last three parcels which I infer grounded the application for the search warrant which was executed on 11 October. The evidence flowing from that search would not have become available to Tasmania Police but for the original illegality. The obtaining of evidence through the excess of power is not to be encouraged. Indeed, such conduct warrants censure. It has long been understood that there is "high public policy"
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associated with ensuring curial approval is not given to the unlawful conduct of those whose task it is to enforce the law. (Pollard v R (1992) 176 CLR 177). It must always, of course, be balanced against the public interest associated with bringing those who commit crime to justice, but in appropriate circumstances adherence to such policy necessitates a refusal to allow improperly obtained evidence to be utilised in the prosecution of crime.
51 I do not ignore the fact that police could have been informed of the suspicions of the Australia Post employees if the conveyer of the information had been an authorised informer, and the other criteria of s 90J(9) were met. It is relevant to the weight I give such a consideration in the evaluative exercise that the Tasmania Police manual specifies disclosures can only be made by an authorised discloser, yet no enquiries seem to have been made to determine whether this was in fact the case. This is particularly so given the information seems to have been passed to police in a very casual manner – a phone call to a holidaying police officer, who in turn passes the information to the Devonport drug squad officers. One of the first steps a prudent police officer should have taken before removing the parcel from Australia Post was to confirm the legitimacy of the information and evaluate whether there was any foundation for the concern. Again, in my view Tasmania Police did not act as carefully as they ought to have.
52 The cumulative effect of the illegalities that were perpetrated culminated in evidence being unfairly obtained. Balancing all of the above matters, I am not satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in this manner. I have very carefully considered the seriousness of the alleged crimes and the effect not admitting the evidence will have on the prosecution case. I am heavily influenced however by what appears to me to have been a cavalier attitude towards compliance with the law and the sparsity of evidence which explains why Tasmania Police, in particular, acted as they did. I must be positively persuaded that the evidence should be admitted having regard to the balancing exercise specified in s 138(3) and I am not.
53 It follows the evidence will not be admitted.
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