Dowe v The Queen - [2009] NSWCCA 23

No judgment structure available for this case.

Reported Decision: 193 A Crim R 220

Appeal Outcome: Special leave dismissed by the High Court - 2 October 2009

New South Wales

Court of Criminal Appeal

CITATION: Dowe v R [2009] NSWCCA 23

HEARING DATE(S): 10 December 2008

JUDGMENT DATE:
19 February 2009

JUDGMENT OF: Tobias JA at 1; James J at 106; Price J at 107

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - miscarriage of justice – particular circumstances involving miscarriage – improper admission or rejection of evidence – illegally obtained evidence – whether evidence obtained in consequence of a controlled operation should be admitted notwithstanding subsequent finding that the authority approving the operation was invalid – where law enforcement officers had bona fide belief in the lawfulness of the controlled operation – judicial discretion to admit or exclude evidence

LEGISLATION CITED: Crimes Act 1914 (Cth)
Customs Act 1901 (Cth)
Drugs Misuse & Trafficking Act 1985
Evidence Act 1995
Law Enforcement (Controlled Operations) Act 1997

CASES CITED: Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54
Dowe v Commissioner of New South Wales Crime Commission [2007] NSWSC 166; (2007) 169 A Crim R 43
Dowe v Commissioner of New South Wales Crime Commission & Anor; Gedeon v Commissioner of New South Wales Crime Commission & Anor [2007] NSWCA 296; (2007) 177 A Crim R 44
Gedeon v Commissioner of New South Wales Crime Commission; Dowe v Commissioner of New South Wales Crime Commission [2008] HCA 43; (2008) 82 ALJR 1465
Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19
R v Dowe [2007] NSWDC 92

PARTIES: David Darley Dowe
Regina

FILE NUMBER(S): CCA 12169003/06

COUNSEL: A: A Haesler
R: W J Abraham QC / L K Crowley

SOLICITORS: A: Legal Aid Commission, Sydney
R: Commonwealth Director of Public Prosecutions, Sydney

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 06/11/0348

LOWER COURT JUDICIAL OFFICER: Hulme DCJ

LOWER COURT DATE OF DECISION: 7 March 2008

CCA 12169003/06

TOBIAS JA
JAMES J
PRICE J
Thursday 19 February 2009

DAVID DARLEY DOWE v R

Judgment

1 TOBIAS JA: On 29 October 2007 the appellant, David Darley Dowe, was arraigned before his Honour Judge Hulme SC and a jury and charged that between 14 February 2005 and 24 February 2005 he did knowingly take part in the supply of a prohibited drug, namely, cocaine, being an amount not less than the commercial quantity for that drug contrary to s 25(2) of the Drugs Misuse & Trafficking Act 1985 (the DMT Act). To this offence the appellant pleaded not guilty. The trial commenced on 29 October 2007 and concluded on 15 November 2007 when the jury returned a verdict of guilty.

2 On 7 March 2008 the appellant was sentenced to a term of imprisonment of 12 years comprising a non-parole period of eight years to date from 9 May 2005 and to expire on 8 May 2013 and a balance of term of three years. The appellant appeals only against his conviction.

Factual overview

3 From December 2004 a Joint Task Force (the JTF) comprising the New South Wales Police, the Australian Federal Police (AFP) and the New South Wales Crime Commission (the Commission) was investigating the activities of a group of persons involved in the importation and supply of cocaine. The JTF received information from a Commission registered informer codenamed “Tom” that on 8 October 2004, 10kg of cocaine had been imported into Australia by a syndicate comprising, among others, one Shayne Hatfield (Hatfield).

4 Tom had sold 3kg of the cocaine imported in October 2004 prior to his leaving Australia in December 2004. He told investigators that he had buried the balance of 7kg at Wahroonga and that it was possible that Hatfield would want that cocaine sold prior to a further importation, which was anticipated to occur in late February 2005. On 6 February 2005 Tom met with Hatfield and one Gilbert Gedeon (Gedeon) and arrangements were made for Gedeon to purchase 2kg of the cocaine for $340,000, with the sale to take place on 8 February 2005.

5 On 7 February 2005 Tom took investigators to the area where the remaining 7kg of cocaine from the October importation had been buried. This was seized and taken to the Australian Government National Measurement Institute for analysis. It was thereafter in the possession of the Commission which was supervising the investigation. It was decided that the cocaine would be sold as if Tom were still an active player in the syndicate rather than working with the authorities, as was the case.

6 On 10 February 2005 Hatfield and Tom met with one Robert Pavan (Pavan). An arrangement was made for Tom to sell Pavan 1kg of the cocaine for $160,000. As it turned out this transaction did not proceed until 23 February 2005.

7 Pursuant to s 6(1) of the Law Enforcement (Controlled Operations) Act 1997 (the LECO Act), on 22 February 2005, Phillip Alexander Bradley (Bradley), Chief Executive Officer of the Commission, authorised Mark Williams Standen (Standen), a law enforcement officer within the meaning of the LECO Act, to conduct a “controlled operation” within the meaning of that Act. That operation was to be conducted in accordance with the plan of that operation accompanying the application for the authority made by Standen pursuant to s 5(1) of the LECO Act (the operation). The objective of the operation was to obtain evidence of criminal activity being the commission of offences under s 25(2) of the DMT Act.

8 The authority so granted was numbered 05/01038 (the Dowe Authority). It authorised Standen not only to conduct the operation but also to engage in a “controlled activity” being the possession of 1kg of cocaine and its supply to Tom. It also authorised Tom to engage in such an activity being the possession of 1kg of cocaine and its supply to Pavan and/or persons acting on his behalf or at his request, at Newtown, in exchange for $160,000. The Dowe Authority was in force for a period ending at 6.20pm on 25 February 2005.

9 Pursuant to the Dowe Authority, at about 8pm on 23 February 2005, police gave Tom a vacuum-sealed bag containing 1kg of cocaine which had been placed in a plastic David Jones bag. At about 8.30pm that evening Tom met Pavan in Newtown and a conversation occurred which was recorded by a listening device. Tom then walked to a lane opposite St. John Street, Newtown and a short time later a vehicle driven by one Ian Finch (Finch) reversed into the lane. The appellant was sitting in the passenger seat of that vehicle.

10 A short time later Tom walked into the lane, approached the vehicle and placed the bag containing the cocaine into its boot. He then removed a box containing $170,000 and the vehicle drove away. A short time later Finch stopped the vehicle then got out and opened the boot and checked the contents of the bag containing the cocaine. He returned to the driver’s seat and drove to the Sydney Harbour Casino at Pyrmont where the appellant alighted from the vehicle and entered the Casino. Finch then drove home and parked the vehicle in his garage.

11 After Tom had placed the bag containing the cocaine in the boot of Finch’s car and removed the money therefrom, he met up with Pavan a short time later and a financial transaction took place. On 24 February 2005 Finch met with Pavan. They went to the boot of Finch’s car whereupon he handed Pavan the 1kg of cocaine. The police observed all of the foregoing.

12 Thereafter the police intercepted calls between Finch and Hatfield, the appellant and Finch, and between the appellant and Pavan. In particular, conversations took place between Finch and the appellant with respect to the quality of the cocaine that had been purchased from Tom on 23 February. On 4 March 2005, Pavan met with the appellant and thereafter the appellant rang Finch and a conversation again took place with respect to the quality of the cocaine purchased from Tom compared with that previously supplied.

13 On 6 March 2005 the appellant and Finch again spoke about the quality of the cocaine purchased from Tom compared to that supplied on earlier occasions. On 9 May 2005 JTF executed numerous search warrants and Finch, Gedeon, the appellant and Pavan, amongst others, were arrested and charged. Finch pleaded guilty and gave evidence for the prosecution.

The authorities issued under the

LECO Act

14 I have already referred at [8] above to the Dowe Authority issued by Bradley on 22 February 2005 which permitted Standen, then Assistant Commissioner of Investigations for the Commission, to provide 1kg of cocaine to Tom so that he could supply it to Pavan or another person at his request. In fact, Bradley had issued a number of similar authorities during the course of the investigation. One of those was Authority No. 05/00556 issued by Bradley on 7 February 2005 and pursuant to which Tom supplied 2kg of cocaine to Gedeon on 8 February 2005 (see [4] above (the Gedeon Authority). Gedeon, like the appellant, had been charged with an offence under s 25(2) of the DMT Act for knowingly taking part in the supply of a commercial quantity of a prohibited drug, namely cocaine.

15 The law enforcement agencies involved in the investigation apparently considered that through Tom they were presented with a unique opportunity to infiltrate an organisation of syndicated drug importers and to identify their supply and distribution chains. In order to maximise the prospects of apprehending and prosecuting as many persons involved in that criminal activity as possible, the agencies utilised Tom to engage in a series of controlled operations purportedly authorised pursuant to the LECO Act.

The legislative scheme

16 The LECO Act makes provision for controlled operation applications (s 5), the determination of such an application (s 6), the form of authority (s 8), the duration of an authority (s 9), the variation of an authority (s 10), the cancellation of an authority (s 12), the effect of the authority (s 13) and the lawfulness of controlled activities and ancillary activities (ss 16, 17 and 18). Relevantly, the Act also expressly provides that certain activities cannot be authorised thereunder (s 7).

17 The provisions of the LECO Act of relevance for present purposes were as follows:

3. Definitions

authorised operation

controlled activity

controlled operation

being an operation that involves, or may involve, a controlled activity.

…

5(1) A law enforcement officer for a law enforcement agency may apply to the chief executive officer of the agency for authority to conduct a controlled operation on behalf of the agency.

…

5(2A) In any application, whether formal or urgent, the applicant must provide the following particulars:

(a) a plan of the proposed operation,

(b) the nature of the criminal activity or corrupt conduct in respect of which the proposed operation is to be conducted,

(c) the nature of the controlled activity in respect of which an authority is sought,

(d) a statement of whether or not the proposed operation, or any other controlled operation with respect to the same criminal activity or corrupt conduct, has been the subject of an earlier application for an authority or variation of an authority and, if so, whether or not the authority was given or variation granted.

6(1) After considering an application for authority to conduct a controlled operation, and any additional information furnished under section 5 (3), the chief executive officer:

(a) may authorise a law enforcement officer for the law enforcement agency concerned to conduct the operation, either unconditionally or subject to conditions, or

(b) may refuse the application.

(a) that there are reasonable grounds to suspect that criminal activity or corrupt conduct has been, is being or is about to be conducted in relation to matters within the administrative responsibility of the agency,

(b) that the nature and extent of the suspected criminal activity or corrupt conduct are such as to justify the conduct of a controlled operation,

(c) that the nature and extent of the proposed controlled activities are appropriate to the suspected criminal activity or corrupt conduct,

(d) that the proposed controlled activities will be capable of being accounted for in sufficient detail to enable the reporting requirements of this Act to be fully complied with.

(4) In considering the matters referred to in subsection (3), the chief executive officer must have regard to the following:

(a) the reliability of any information as to the nature and extent of the suspected criminal activity or corrupt conduct,

(b) the likelihood of success of the proposed controlled operation compared with the likelihood of success of any other law enforcement operation that it would be reasonably practicable to conduct for the same purposes,

(c) the duration of the proposed controlled operation.

7(1) An authority to conduct a controlled operation must not be granted in relation to a proposed operation that involves any participant in the operation:

(a) …

(b) engaging in conduct that is likely to seriously endanger the health or safety of that or any other participant, or any other person, or to result in serious loss or damage to property.

(3) It is a sufficient defence to criminal or disciplinary proceedings arising from conduct that has been engaged in by the defendant in reliance on an authority that has been cancelled if the defendant satisfies the court or tribunal before which the proceedings are being heard:

(a) that the defendant engaged in the conduct in good faith for the purposes of, and in the course of, a controlled operation for which the authority had been in force, and

(b) that, had the authority been in force when the defendant engaged in the conduct, the conduct would have been lawful by operation of section 16, and

(c) that the defendant was unaware, and could not reasonably be expected to have been aware, that the authority had been cancelled.

13 While it has effect, an authority for a controlled operation:

(a) authorises each law enforcement participant to engage in the controlled activities specified in the authority in respect of the law enforcement participants, and

(b) authorises each civilian participant (if any) to engage in the particular controlled activities (if any) specified in the authority in respect of that participant.

…

16 Despite any other Act or law, an activity that is engaged in by a participant in an authorised operation in the course of, and for the purposes of, the operation is not unlawful, and does not constitute an offence or corrupt conduct, so long as it is authorised by, and is engaged in accordance with, the authority for the operation.”

18 Provision is also made in Part 1AB of the Crimes Act 1914 (Cth) (which includes s 15M) for the authorisation of controlled operations for obtaining evidence with respect to Commonwealth offences. Both the LECO Act and Part 1AB contain parallel provisions for the conduct of controlled operations. It was common ground in the present case that no certificate for such an operation under s 14M of the Commonwealth legislation had been obtained. It was also common ground that both Part 1AB and the LECO Act were enacted as a result of the judgment of the High Court in Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 (Ridgeway). It will be necessary to refer further to this decision later in these reasons. Finally it was also common ground that the protection of s 16 of the LECO Act did not extend to any offence under Commonwealth law.

The validity of the Gedeon Authority and the Dowe Authority (the Authorities) is challenged

19 The Commission was issued subpoenas for the production of documents during the course of committal proceedings with respect to the appellant in March 2006, and Bradley as the Commissioner was subpoenaed to attend and give evidence. The issue of the subpoenas was opposed on the ground that the reasons for the issue of the Dowe Authority were not relevant and any challenge to its legal validity should be instituted in the Supreme Court by way of judicial review proceedings pursuant to s 69 of the Supreme Court Act 1970.

20 Accordingly, on 11 April 2006 the appellant and Gedeon commenced judicial review proceedings in the Supreme Court, ultimately claiming, inter alia, that the Authorities were ultra vires and invalid.

21 On 13 April 2006 the appellant and Gedeon were committed for trial. The appellant’s first trial commenced on 26 April 2007 before her Honour Judge Murrell and a jury.

22 In the meantime, on 6 March 2007 the Supreme Court proceedings of both the appellant and Gedeon were determined by Hall J, who affirmed the validity of the Authorities: Dowe v Commissioner of New South Wales Crime Commission [2007] NSWSC 166; (2007) 169 A Crim R 43 (Dowe No. 1). Relevantly for present purposes, his Honour held that the Authorities were not issued in contravention of s 7(1)(b) of the LECO Act.

The first trial of the appellant before Judge Murrell

23 As I have observed, the appellant’s first trial commenced on 26 April 2007. He was originally indicted on three counts of knowingly taking part in the supply of a commercial quantity of cocaine and entered pleas of “Not Guilty” to each count. On the first day of the trial application was made to exclude the evidence obtained pursuant to the Dowe Authority. In support of that application, evidence on the voir dire was given over a period of some four days. In her judgment of 4 May 2007 (R v Dowe [2007] NSWDC 92) Judge Murrell identified (at [11]) five questions for her determination of which four are presently relevant: namely:

(1) whether on and after 7 February 2005 the cocaine was handled illegally or improperly at least until 22 February when the Dowe Authority was issued;

(2) whether prior to 22 February 2005, the police had a “ reasonable excuse ” for possessing/handling the cocaine or whether their possession/handling thereof was illegal under s 233B of the Customs Act 1901 (Cth) and/or under the DMT Act ;

(3) whether any evidence was “ obtained ” illegally/improperly or “ in consequence of ” an illegality/impropriety within the meaning of s 138(1) of the Evidence Act 1995.

24 Her Honour answered the first question, insofar as it related to the improper handling of the cocaine, in the affirmative. She held (at [15]) that the cocaine was a prohibited import so that by the operation of s 229(1)(b) of the Customs Act 1901 (Cth) it was forfeited to the Crown. Having been so forfeited, it became “special forfeited goods” within the meaning of s 183UA(1) of that Act. After analysis, the 7kg of cocaine came into the possession of Standen who, by coincidence, was an officer of the AFP. However, the cocaine was an AFP exhibit to which the AFP Exhibits Guidelines applied. Her Honour found (at [19]) that no consideration was given to following those Guidelines although Standen was aware of them as well as the Commonwealth legislation relating to the authorisation of controlled operations.

25 Her Honour’s finding with respect to Standen’s evidence on this issue was as follows:

Crimes Act

had the flavour of a State supply’.

) Crimes Act

21. In short, Mr Standen and other officers attached to the joint task force failed to acknowledge that the drug was forfeited to the Commonwealth Crown and failed to treat it in accordance with the AFP Exhibits Guidelines, which apply to Commonwealth drug exhibits.”

26 Standen was also a special officer for NSW and had the duties of a NSW police officer. He was aware, her Honour found, of the NSW legislation with respect to the processing of the cocaine as a NSW drug exhibit. However, he failed to process the drug in accordance with NSW drug exhibit procedures. This, her Honour held (at [26]), was not unlawful but was, at most, an impropriety. Applying the relevant authorities on the meaning of “impropriety” in s 138 of the Evidence Act, her Honour held that Standen’s conduct whereby he failed to manage the 7kg of cocaine under either the NSW or Commonwealth schemes for the management of drug exhibits, so qualified as it was deliberate and was clearly inconsistent with minimum standards.

27 With respect to Question 2, she noted (at [33]) the concession of the Crown that unless the police and Tom could establish a “reasonable excuse” for possession of the cocaine under s 233B(1AAB) of the Customs Act, up until the issue by the Dowe Authority, the possession of the drug contravened s 233B(1)(iv) and/or (v) of that Act. However, her Honour held (at [37]) that prior to 22 February 2005 (being the date of issue of the Dowe Authority), there was no “reasonable excuse” for the conduct that was otherwise rendered unlawful by s 233B of the Customs Act.

28 Nevertheless, having found that it was appropriate to deal with the cocaine under NSW legislation, her Honour determined (at [41]) that as a consequence of the decision of Hall J in Dowe No. 1, the existence of a valid NSW controlled operation authority not only provided protection in relation to conduct which would otherwise have involved State offences, but also provided a “reasonable excuse” for what would otherwise have been unlawful conduct under the Customs Act. She therefore concluded that

”between 7 February and the grant of the controlled operation authority on 22 February, police possession and handling of the drug was illegal but from the [date] of the grant of authority it was not unlawful.”

29 As I understand her Honour’s reasons, her finding of “reasonable excuse” for the purposes of the Customs Act was referable only to the period subsequent to the grant of the Dowe Authority.

30 With respect to Question 3, her Honour noted (at [45]) that challenged evidence would be excluded only where there is a causal connection between the illegality/impropriety and the obtaining of the impugned evidence. The former must have “produced” the latter. Her Honour then held:

DMT Act

Customs Act

DMT Act

48. The accused has not established that any relevant evidence was ‘obtained’ improperly or in contravention of Australian law, or ‘in consequence of’ an impropriety or contravention of an Australian law.”

31 In the foregoing circumstances her Honour found it unnecessary to consider Question 4 insofar as it involved the exercise of the discretion contemplated by s 138(1). However, she did comment (at [49]) that

“there are many factors which may have militated in favour of admitting evidence of the events of 23 February and thereafter. Inter alia, the relevant offences [with which the appellant was charged] are very serious and no mala fides has been demonstrated on the part of the police.”

32 Having rejected the appellant’s application to exclude the evidence obtained prior to the issue of the Dowe Authority on 22 February 2005, the trial continued and at the close of the Crown case on 21 May 2007, her Honour directed the jury to return verdicts of not guilty in relation to the first two counts on the indictment and, with respect to the third count, discharged the jury and ordered a retrial.

The appeal from the decision of Hall J

33 On 9 August 2007, the Court of Appeal comprising Spigelman CJ, Basten JA and Handley AJA, heard appeals by the appellant and Gedeon from the decision of Hall J upholding the validity of the Authorities. On 19 October 2007 both appeals were dismissed by majority (Spigelman CJ, Handley AJA agreeing) and Basten JA dissented: Dowe v Commissioner of New South Wales Crime Commission & Anor; Gedeon v Commissioner of New South Wales Crime Commission & Anor [2007] NSWCA 296; (2007) 177 A Crim R 44.

34 Before the Court of Appeal the challenge to the validity of the Authorities was founded upon s 7(1)(b) of the LECO Act which prohibited the granting of an authority to conduct a controlled operation that, relevantly, involved any participant in the operation

“(b) engaging in conduct that is likely to seriously endanger the health or safety of that or any other participant, or any other person …”

35 It was contended that the question posed by s 7(1)(b) with respect to whether or not any authorised conduct was “likely to seriously endanger the health or safety” of persons was a jurisdictional fact in the sense that it was a matter for the Court, on the evidence before it, to determine. That contention was rejected by the Chief Justice (at [32]) who held that the precondition in s 7(1)(b) operated

“as an emphatic instruction to the decision-maker but it is not a jurisdictional fact of a character which must exist in truth, and may be determined by a court on the basis of evidence adduced to the court but which was never before the decision-maker.”

36 The alternative basis of challenge was one of Wednesbury unreasonableness. The Chief Justice identified two issues under this head. The first was whether the word “conduct” in s 7 was to be narrowly interpreted so as to refer only to the act of handing over the cocaine and without reference to its subsequent use. The second was whether the demanding test of irrationality or unreasonableness was met in the particular circumstances of the case.

37 With respect to the first issue the Chief Justice observed (at [49]):

“If the subsequent distribution to end users of the cocaine fell within the scope of the prohibited ’conduct‘ in which a participant would engage pursuant to an authority, within the meaning of s7(1)(b), it was not, and could not be, contended that the health of those users was not ‘seriously endangered’. The only issue was whether his Honour was correct to confine the scope of the conduct so that it did not so extend.”

38 The critical issue, therefore, was the identity of the persons upon whom the relevant effect was to occur. That turned upon the words “any other person” in s 7(1)(b). At [54] the Chief Justice held:

any other person

ejusdem generis

39 Basten JA agreed with the Chief Justice (at [73]) that the relevant jurisdictional fact was the satisfaction of the Commissioner so that the matter was not one for determination by a court if and when the authority was challenged. However, his Honour disagreed with the majority with respect to the proper construction of s 7(1)(b). In his view, once it was accepted that the relevant conduct (the supply of cocaine) was likely to result in consumption of the drug and that consumption of it would or was likely to endanger the health of the consumer, it followed both as a matter of construction and in terms of the policy underlying the legislation, that that was a factor which was required to be taken into account. If it was taken into account, then absent some specific circumstance, which had not been identified by the parties, the authority could not be granted: see at [81]. Accordingly, his Honour concluded (at [86]) that the Authorities could not have been properly granted as the grant would in each case have been prohibited by s 7(1)(b).

The second trial of the appellant before Judge Hulme SC

40 The second trial of the appellant on the third count commenced on 31 October 2007 before Judge Hulme SC and a jury. Although it proceeded on the basis of the majority decision of the Court of Appeal given on 19 October 2007, the appellant asserted in his written submissions that it also proceeded on the basis of the rulings of her Honour Judge Murrell on 4 May 2007, it being contended that the only application to exclude the pre-22 February evidence in the second trial was with respect to matters not previously litigated. However, I am not convinced that this is correct although Judge Hulme acknowledged that the arguments advanced before Judge Murrell were more wide-ranging than those which were advanced before him. Nevertheless, it seems to me that at least Questions 23 and 4 before Judge Murrell (see [23] above) was again agitated before Judge Hulme.

41 In this context much of the evidence given on the voir dire before Judge Murrell related to this issue. Although the trial judge noted that Judge Murrell’s judgment was before him, he acknowledged the necessity for him to make his own findings on the evidence to which he had been directed and, on the basis of the submissions he had heard, for him to come to his own conclusions with respect thereto.

The decision of Judge Hulme on the application to exclude pre-22 February evidence

42 As noted by his Honour in his judgment of 15 November 2007 on the application to exclude the evidence obtained prior to 22 February 2005, the focus of the appellant’s submissions was on the asserted illegality under the Customs Act of the NSW authorities dealing with cocaine which had been unlawfully imported and, pursuant to s 229(1)(b) of the Customs Act, forfeited to the Crown. As his Honour noted, that asserted illegality was the unlawful dealing in forfeited goods contrary to s 233B(1) of the Customs Act.

43 Both before Judge Murrell and the trial judge, the Crown conceded that unless the police and Tom could establish a “reasonable excuse” for possession of the cocaine under s 233B(1AAB) of the Customs Act, up until the issue of the Dowe Authority, their possession of what was a prohibited import contravened s 233B(1) of that Act.

44 With respect to that issue (Question 2 before Judge Murrell), the trial judge made the following finding:

a reasonable excuse

45 The trial judge then considered whether, if he be wrong with respect to his finding on the issue of “a reasonable excuse”, the pre-22 February evidence was obtained “in consequence of” a contravention of an Australian law within the meaning of s 138(1)(b) of the Evidence Act (Question 3 before Judge Murrell). On that issue he inclined to the view that the necessary causal connection was established

“on the rather simplistic basis that if it was not for the possessing and the conveying of the cocaine by the authorities and their agent, much of the evidence that the Crown now seeks to rely upon to establish the guilt of each of the accused would not have been obtained.”

46 This finding was inconsistent with that of Judge Murrell to which I have referred at [30] above. His Honour then addressed the issue posed by s 138(1) as to whether the desirability of admitting the evidence outweighed the undesirability of admitting it given the manner in which it had been obtained (Question 4 before Judge Murrell). In so doing he referred in some detail to the evidence given on the voir dire before Judge Murrell, particularly by Assistant Commissioner Michael Phelan (Phelan) of the AFP on the one hand and Standen on the other. His Honour referred to Phelan’s evidence to the effect that whilst the AFP would not accept the appropriateness of the proposed trafficking in cocaine, it regarded the matter as one for the NSW police and the Commission. As far as Phelan was concerned, he had no issue with the illegality of it. He said “As far as I was concerned, it was legal at the time”. His Honour considered that Phelan was saying that whilst the AFP would not countenance itself being involved in the proposed operation, he saw nothing wrong with the State authorities conducting the operation for the purpose of apprehending those involved in an offence against State law.

47 The trial judge then referred to Standen’s evidence to the effect that although the Commonwealth authorities had some jurisdictional control over the cocaine, nevertheless what was involved was the conduct of State authorities who had jurisdiction in relation to State offences and that it was in respect of the investigation of the latter that he, Standen, had sought and obtained the Dowe Authority. His Honour also referred to Standen’s evidence that he did not think it was necessary to obtain a Commonwealth controlled operation authority. He understood Standen’s evidence to be that he had turned his mind to that possibility but had made a deliberate decision that such an authority was not required.

48 His Honour next referred to the evidence of Standen whereby he agreed that possession of a prohibited import was unlawful under Commonwealth law in the absence of a reasonable excuse. However, he, Standen, did not at any stage consider that he might be in breach of that law.

49 Much was made before the trial judge of the question as to whether there was a dispute between the Commonwealth and State authorities regarding the proposed controlled operation involving the sale of the cocaine. His Honour considered that the gist of what Standen had said was that he was clearly aware that the AFP would not have any direct involvement in such activity but that their opposition did not extend to withdrawing their officers from the JTF. They were content to have them continue to act in the background in what might be described as passive support of the operation.

50 It was submitted at trial on behalf of the appellant’s co-accused (and adopted by the appellant) that his Honour should find that Standen deliberately chose not to obtain an appropriate controlled activity authority from the Commonwealth authorities because he knew that such an authority would not be granted. Hence he either deliberately or recklessly flouted the law in this respect. It was submitted that to permit the pre-22 February evidence to be given in these circumstances would be to give tacit curial approval to deliberate or reckless illegal behaviour that should not be countenanced. It was submitted that the considerations referred to in s 138(3) such as the probative value of the evidence and the other matters therein referred to which might otherwise militate in favour of admitting the evidence “fell by the wayside” when compared with how easily the law could have been complied with by Standen in light of his deliberate decision not to do so.

51 The trial judge rejected these submissions in the following terms:

“I am not satisfied that Mr Standen deliberately chose not to obtain a controlled operation authority. In my view his focus was, in the main, on obtaining sanction in respect of activity that might otherwise be prescribed under New South Wales criminal law and that is well understandable as the activity envisaged fell squarely within the confines of that law. It would be, in my view, a remarkable state of affairs that New South Wales investigating officers should obtain Commonwealth sanctions whenever contemplating controlled operations involving the supply within New South Wales of prohibited drugs that could be expected to have been imported, or highly likely to have been imported, such as heroin and cocaine, particularly when the target of such operations are persons suspected of involvement not in any Commonwealth criminal offence but of purely State criminal offences.”

52 On the issue of whether he should exercise his discretion to admit the evidence, the trial judge said:

“Given my view of Mr Standen’s approach to the matter as indicated earlier, I am clearly convinced that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that was obtained in the way it wa[s]. I am not of the view that the contravention of the law, if there was one, was either deliberate or reckless. The probative value and the importance of the evidence is high and it relate to the alleged commission of very serious offences by persons suspected of ongoing involvement in such serious criminal activity. The gravity of the contravention, if there was one, is minor in the scheme of things in that it may at best be regarded as an innocent and understandable mistake as to the state of the law. …”

53 Finally, his Honour summarised his views in the following terms:

“To summarise, my first view is that there was no contravention of Australian law and so the provisions of s 138 are not engaged. If however, I am wrong in this view I am steadfastly of the view that it is appropriate in the circumstances of this case to exercise the discretion to admit the evidence nonetheless.”

54 Although the trial judge’s reasons for admitting the evidence objected to are dated 15 November 2007, the application to exclude the evidence was rejected by his Honour on 31 October 2007 upon the basis that he would give his reasons at a later time. The trial then proceeded until 15 November 2007 when the jury convicted the appellant of the offence with which he was charged.

The Dowe Authority is held invalid by the High Court

55 On 16 November 2007 (being the day following his conviction), the appellant filed an application for special leave to appeal to the High Court against the decision of the Court of Appeal given on 19 October 2007. The special leave application was, on 18 April 2008, referred by Gleeson CJ and Gummow J to a court of six Justices which heard the application on 30 July 2008 and delivered judgment on 4 September 2008: Gedeon v Commissioner of New South Wales Crime Commission; Dowe v Commissioner of New South Wales Crime Commission [2008] HCA 43; (2008) 82 ALJR 1465.

56 In a joint judgment the Court granted special leave to appeal and declared each of the Authorities invalid. Three submissions were advanced to the Court by the appellant and Gedeon. The first was that the prohibition in s 7(1)(b) of the LECO Act was concerned with the existence of the Commissioner’s power to grant an authority rather than with the exercise of a discretion to do so. It was, therefore, a “jurisdictional fact”.

57 The second was that the reference in s 7(1)(b) to “any other person” was not, contrary to the view taken by the majority in the Court of Appeal, confined to persons in the physical vicinity of the authorised conduct; rather, that phrase encompassed harm to other persons which was the foreseen and expected consequence of the conduct in question.

58 The third submission was to the effect that s 16 of the LECO Act did not render lawful conduct that, while unlawful at common law or under NSW statute law, was also made unlawful by Commonwealth law. The Court rejected this submission. Nevertheless it recognised (at 1473 [41]) that there was a need for approval under both the State and Commonwealth statutory regimes if full protection for those involved was to be obtained. Further, the absence of a necessary approval under either scheme would be sufficient to raise at trial the operation of s 138 of the Evidence Act. However, s 138 apart, authority under the LECO Act (if otherwise valid) was effective without a certificate under s 15M of the Crimes Act 1914 (Cth).

59 On the other hand, the Court upheld the first two submissions. At [46] it noted that s 7(1) was expressed in terms of prohibition and thus delimited the scope for any exercise of authority by a chief executive officer. The provision conveyed the notion of a contraction in the content of what would be the power otherwise conferred by s 6. If it be established upon a “collateral” attack decided by way of a ruling at trial under s 138 of the Evidence Act that, for example, the authority in question was in relation to a proposed operation involving a participant engaging in conduct that was likely to seriously endanger the health or safety of that or any other participant or any other person, then the grant of the authority was beyond power.

60 Notwithstanding the Chief Justice’s construction of the words “any other person” which I have set out in [38] above, in the High Court counsel for the Commission submitted that the expression “any other person” was limited to those involved in the operation in question. However, the Court noted (at [52]) that the emphasis in s 7(1)(b) was upon exposure to the risks of danger or peril rather than upon the materialisation of that risk. After referring to the passage from the judgment of the Chief Justice which I have recorded at [37] above, the Court noted (at [55]) that s 7(1)(b) used the term “likely” and did not speak in terms of the serious endangerment as a necessary consequence of engagement in the conduct authorised.

61 I mention these findings as the evidence of Standen tendered at the trial and upon which the appellant relies in the present appeal referred to the fact that cocaine was far less dangerous than other drugs such as heroin and that no deaths from cocaine had ever been recorded. I shall return to this and other evidence of Standen relating to his understanding of s 7(1)(b) later in these reasons.

62 The Court concluded this issue in the following terms:

“57. A reasonable person in the position of the defendant would have foreseen that the conduct of the activities the subject of the Authorities would involve a risk of seriously endangering the health of some at least of the numerous class of end purchasers of the cocaine. The contrary is impossible to reconcile with the legislative judgment, reflected both in federal and State law, prohibiting respectively the importation, supply and possession of such drugs. That prospect was sufficient to attract, as the legislative response to such a situation of risk, the prohibition in par (b) of s 7(1) of the LECO Act.

58. The submission by the Commission that the phrase "any other person" is limited to participants in the operation reads down the ordinary meaning of that phrase and does so with the consequence of leaving the State exposed to the possibility of civil liability to a range of third parties, a hazard the legislature wished to avoid.”

The appellant’s ground of appeal

63 The appellant’s sole ground of appeal was stated in the following terms:

“There was a miscarriage of justice as the trial of the applicant proceeded on the basis that the supply to him and others of 1 kilogram of cocaine was pursuant to a lawful controlled operation authority when in fact that authority and the subsequent supply were improper, unlawful and in contravention of Australian laws: as a consequence evidence relating to that operation should not have been admitted at trial.”

64 It was submitted that the effect of the High Court’s decision declaring the Dowe Authority invalid was that the supply by Tom of the 1kg of cocaine was, in terms of s 138(1) of the Evidence Act, in contravention of an Australian law, namely s 25(1) of the DMT Act, being the same section pursuant to which the appellant himself was charged. It was submitted that there was, in fact, a deliberate, calculated, reckless and wilful breach not only of the Customs Act but also of the DMT Act. This was because Tom, at the behest and with the involvement of the Commission and its officers, had undertaken what they knew, absent a valid authority under the LECO Act, to be the supply of a commercial quantity of cocaine in breach of ss 10 and 29 of the DMT Act.

65 It was thus submitted that in circumstances where law enforcement officers, encouraged by those in higher authority (being the Commissioner of the Commission as well as the Commissioner of Police), had engaged in illegal conduct, considerations of public policy relating to the administration of criminal justice required the exclusion of the post-22 February evidence pursuant to the discretion to exclude such evidence under s 138(1).

66 As in Ridgeway it was submitted that the conduct of the Commission’s officers in the present case, absent a lawful authority, involved grave and calculated criminality which had received approval at the highest level of the Commission and New South Wales Police Service. The unauthorised operation involved the creation of the actual elements of the offence with which the appellant was charged, with the consequence that there was a selective prosecution of the appellant rather than the perpetrators of the unlawful activity which led to that charge in the absence of any real indication of official disapproval or retribution.

67 The appellant’s written submissions thus stated:

LECO Act

Customs Act

52. Had the applicant been in a position to challenge in the proceedings the legality of the controlled operation, and had the trial judge been in a position to rule on the point, the evidence would inevitably be rejected on public policy grounds.”

68 In his written reply to the submissions of the Crown, the appellant indulged, with respect, in a deal of hyperbole. Those submissions may be summarised as follows:

(a) There was no innocent breach of the law by the Commission or its officers: a calculation was made that the law would be interpreted in a manner supportive of the approach taken;

(b) There was thus a calculated attempt to stretch the limits of the LECO Act . A calculated risk was taken that the authority granted by the Commissioner would be valid;

(c) The interpretation placed by the Commission upon s 7(1)(b) of the LECO Act was made “ recklessly or unreasonably ”. This was because of what the High Court said in the paragraphs of its judgment which I have recorded at [61] above;

(d) If not a deliberate breach of the LECO Act , the Commission’s conduct was at best reckless as to whether a breach of s 7(1)(b) might occur and its conduct was reckless with respect to the consequences of the supply of 1kg of cocaine on the community in terms of its potential danger to end users;

(e) Given that the conduct in question involved breaches of Commonwealth law that were not protected by a s 15M certificate, the Commission and its officers were therefore guilty of deliberate and wilful breaches of Commonwealth law;

(f) It is a public policy imperative to ensure that those who are charged with, and given special and extraordinary powers with respect to, enforcing the law, obey the law; the public interest in an individual criminal’s conviction cannot be obtained at too high a price;

(g) Questions of public policy must extend to the present situation where the relevant law enforcement agency has acted unlawfully in a manner that put a large number of individual members of the public at risk by allowing the distribution of cocaine previously in its possession, knowing that it would inevitably be consumed;

(h) The conduct of the officers here involved the unlawful and improper collection and storage of the imported cocaine and its supply to Tom for further supply contrary to the disapproval of the AFP;

LECO Act

69 During the course of oral argument on the appeal, the question was raised as to this Court’s power to entertain what was referred to as an original exercise of the power under s 138(1) to determine whether the impugned evidence should be excluded or admitted. This was because the s 138 application before the trial judge had proceeded upon the basis that the Dowe Authority was valid. Consequently the application before his Honour was confined to an attempt to exclude the evidence of events prior to the grant of that authority on 22 February 2005. The position now faced by this Court involved the exclusion of the evidence obtained after that date which would result, so it was submitted, in an entirely different dynamic with respect to the discretionary factors to be taken into account under s 138(1) and, in particular, s 138(3).

70 The appellant further submitted that this Court could exercise an original jurisdiction under s 138 at least if it was of the view that it was inevitable that the impugned evidence should be excluded and that it would be futile to suggest otherwise. Alternatively, if the Court was not prepared to so find, then the appellant’s conviction should be quashed and a new trial ordered wherein the totality of the alleged unlawful conduct on the part of the law enforcement agencies could be considered afresh in circumstances where the evidence would not necessarily be confined to that which was before the trial judge. In particular, I infer that in any new trial there would be tendered the evidence in the committal proceedings conducted in March 2006, particularly that of Bradley and Standen. That evidence was not before the trial judge although I am prepared to assume that some of it was repeated in Standen’s evidence on the voir dire before Judge Murrell, which was before the trial judge.

71 However, there were aspects of the committal evidence which were not relevant either before Judge Murrell or Judge Hulme as it related to matters which were then academic, at least temporarily, as a consequence of the decisions of Hall J and the Court of Appeal. That evidence related in particular to Standen’s understanding of or attitude towards the requirements of s 7(1)(b) of the LECO Act and which I accept as being relevant to the application of s 138 now pressed upon this Court. I shall refer further to this evidence below.

72 In response to the appellant’s submissions the Crown submitted that the relevant impropriety resulting from the decision of the High Court was neither deliberate nor reckless. To the contrary, the controlled operation was undertaken in the genuine belief that the Dowe Authority was valid. Both the police and the relevant officers of the Commission acted in good faith in the belief that they were at all times acting lawfully under a validly granted controlled operation authority. The Commissioner, Bradley, believed that such an authority could and should be issued by him and, as the High Court noted (at [47]), the decision of Hall J and the majority of the Court of Appeal

73 The Crown further submitted that the fact that the Dowe Authority was declared invalid and related to significant evidence did not render the conduct of the relevant officers as involving “grave and calculated criminality”. Such a submission confused the concepts of deliberately undertaking an act with deliberately doing so illegally. The present case, it was submitted, fell within the former category. Here the act of supplying the 1kg of cocaine was clearly intended but a breach of the law was not. Indeed the relevant authorities held a positive view that they were not acting unlawfully at the time. In fact, they were acting on an understanding of the law which had been subsequently upheld by three Judges of the Supreme Court including the Chief Justice, albeit that the High Court had determined otherwise. They had a genuine and justifiable belief in the validity of the authority under which they acted, albeit that it ultimately turned out to be mistaken.

The appellant’s submission should be rejected

74 As I have indicated, the appellant relied heavily upon the decision of the High Court in Ridgeway. That case involved what was referred to as a “controlled importation” of heroin into Australia from Malaysia. The prosecution had conceded, and it was clearly the case and never doubted by those involved, that the arranged importation of the heroin contravened s 233B of the Customs Act. It was so described in the joint judgment of Mason CJ, Deane and Dawson JJ in the following terms (at [27]):

75 Before the High Court Ridgeway had submitted that the effect of the police involvement in the illegal importation of the heroin was that the evidence of his guilt should have been excluded on discretionary grounds. This case was decided before the coming into force of the Evidence Act. Nevertheless, at least since Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, it had been the common law in Australia that a trial judge had a discretion to exclude prosecution evidence on public policy grounds in circumstances where it had been obtained by unlawful conduct on the part of the police. That discretion was described in the joint judgment in Ridgeway (at [31]) in the following terms:

76 Under the heading “Exercise of the Discretion”, the joint judgment contained the following observations (at [38]):

77 A further significant observation of their Honours relevant to the present case was the following (at [39]):

“References in this judgment to an offence being ‘procured’ by illegal conduct on the part of law enforcement officers are intended to refer to two distinct, but possibly overlapping, categories of case. The first category consists of cases in which the police conduct has induced an accused person to commit the offence which he or she has committed. In that category of case, the public interest in the conviction and punishment of those guilty of crime is likely to prevail over other considerations except in what we would hope to be the rare and exceptional case where the illegality or impropriety of the police conduct is grave and either so calculated or so entrenched that it is clear that considerations of public policy relating to the administration of criminal justice require exclusion of the evidence. The other category of case is where illegal police conduct is itself the principal offence to which the charged offence…”

78 The Crown submitted and I agree that the facts in Ridgeway were clearly distinguishable from the present case in the following respects:

(a) At all material times the relevant law enforcement officers genuinely believed that there was a valid authority in place;

(b) In applying for and issuing the Dowe Authority, Standen and Bradley respectively applied the law as they understood it to be at the time;

(c) It was only after the High Court ruled on the correct construction of s 7(1)(b) that the Dowe Authority was declared invalid;

(d) Unlike Ridgeway , the conduct of the relevant officers did not bring about the commission by the appellant of the offence with which he was charged: nor was it an element of that offence; in other words, the conduct fell into the first category referred to by the High Court in Ridgeway in the passage which I have recorded at [77] above;

(e) Tom approached the authorities and the conduct which was then undertaken was part and parcel of the ongoing activities of a large scale drug syndicate;

79 During the course of oral argument it became apparent that the focus of the appellant’s submissions was upon s 7(1)(b) of the LECO Act and, in particular, the deliberate risk that was taken by Standen that the cocaine would be distributed to end users within the community. It was further submitted that as a matter of public policy, the fact that a mistake was made in the present case which led to the distribution of 7kg of cocaine to the community was so grave as to dictate that the relevant discretion should be exercised to exclude the post-22 February evidence. In this context it was submitted that the Commission’s interpretation of s 7(1)(b) was unreasonable notwithstanding that it had been held to be correct by three judges of the Supreme Court including the Chief Justice.

80 The appellant placed particular reliance upon s 138(3)(d) of the Evidence Act, which requires a court to take into account the gravity of the breach of the law which engages s 138(1). In the present case it was submitted that the offence committed by the Commission carried a life sentence. Although the Commission’s motivations might have been pure, and may have been based upon a wrong interpretation of s 7(1)(b), nevertheless a serious crime was committed which had extremely serious consequences.

81 However, the appellant conceded that it was clearly in the public interest that the appellant be convicted as he had chosen to involve himself in the supply of 1kg of cocaine. However, the gravity of the crime committed by the Commission and its agents was one that trumped that of the appellant being convicted. Again, emphasis was placed upon the submission that 7kg of cocaine was intended to be supplied which would inevitably end up in the community causing serious endangerment to its members.

82 Towards the end of the hearing senior counsel for the appellant was referred to a number of assertions in his written submissions in reply to those of the Crown with a request that he provide references to the evidence that supported the assertions in question.

83 In a document forwarded to the Court two days after the conclusion of the hearing, senior counsel for the appellant referred to the assertions contained in paras 7, 9, 10 and 11 of his written submissions in reply and then provided transcript references in the appeal books said to be in support of those assertions. The following 22 “propositions” with appeal book references (which I have omitted), were then advanced in the following terms (the numbering is mine):

”1. Basic plan to sell to end users formulated before the Authority was approved – as aim to arrest the most people.

2. Standen aware that Controlled operation should not endanger health and safety generally.

3. Failed to consider in context of known dangers and statutory restrictions.

4. Concern bad publicity not prohibitions in LECO or dangers to community.

5. Sale to end users was not or was only obliquely mentioned in critical documentation.

6. AFP excluded, that could not fit within Commonwealth legislation and objections to sale to end users of cocaine ignored.

7. Joint Taskforce members say that despite their experience they did not even contemplate federal and state offences might be being committed prior to the grant of the authority.

8. It was never intended to deal with the drugs seized in the conventional way.

9. AFP Officers did not draw attention of their authorities that the plan involved distribution of drugs would not be recovered.

10. Basic procedures not followed.

11. Standen prepared to mislead court.

12. Stretch limits of LECO Act : Application and Authority fail to mention sale to end users: does not set out matters which will seriously endanger health safety and simply recites s 7 LECO Act . Does not alert Ombudsman to problems and danger. No consideration of contrary position in Commonwealth Crimes Act .

13. False statement in application regarding accountability. Drugs sold could not be accounted for. Drug and money handling procedures and requirements were not followed.

14. No controlled operation sought from time of drug’s seizure.

15. A presumption Certificate would be granted no real consideration of LECO at all.

16. Spoke to Commonwealth DPP but did not seek their advice. Did not speak to State DPP.

17. Did not consider Commonwealth restrictions on dangers etc. a factor.

18. Reckless as to consequences.

19. Always the plan that end users would receive the cocaine.

20. Did not consider that DMT Act was being breached throughout.

21. Actions deliberate.

84 A number of the above “propositions” were also advanced before the trial judge with respect to the application made to him under s 138(1). I refer in particular to the AFP’s attitude to the proposed controlled operation. The breach of Commonwealth law absent the obtaining of a certificate under s 15M of the Crimes Act 1914 (Cth) was also a matter that was, to a greater or lesser degree, agitated before the trial judge.

85 The “propositions” which were not relevant before the trial judge due to the decisions of Hall J and the Court of Appeal, were those that I have numbered 1, 2, 3, 5, 9, 18 and 19. The evidence in support of those allegations was contained in the evidence given in the committal proceedings in March 2006 before the challenge to the validity of the Authorities was instituted. That evidence established that both Standen and Bradley were aware that there was a probability, if not certainty, that much of the cocaine would be sold into the community to end users although there was the possibility, depending upon the particular circumstances, that some could be retrieved. In fact 1kg was recovered, although the usual plan was to see how events unfolded to determine whether there was any safe opportunity to retrieve the cocaine which had been supplied. Thus the following exchange took place in Standen’s evidence:

86 In Standen’s re-examination the following evidence was elicited:

87 With respect to Standen’s understanding of s 7(1)(b), the following further evidence given at the committal hearing is of significance in the present context:

“Q. …so as far as you were concerned this operation was not going to endanger the health of any other person by way of those drugs ending up on the street, that’s your position isn’t it?
A. So far as the participants in the controlled activity correct, and not by comparison to as I said the other options.

Q. I’m not talking about the participants here, it says any other person, so you would have had to have gauged and considered the fact that these drugs would end up on the street and that people would use them. Now are you saying that you’d thought of that and obviously decided that that act was not going to endanger any other person’s health?
A. I did give consideration to that, but that aside it’s still our view, being the Commission, that that section relates to the actual conduct of the operation, not what might happen a month, two months, six months down the track.”

88 In a similar vein was the following further exchange between the cross-examiner and Standen:

“Q. …I’ll go back a step. It was at least probable and quite likely that the kilo of cocaine which was the subject of [the Dowe Authority], this application, the one I’m discussing, to be transacted at Newtown would not be recovered by police. Correct?
A. More probable than not, that’s correct.’

Q. And in that regard, more probable than not that ultimately it would be disseminated to street level, correct?
A. Correct.

Q. Your state of mind was that any danger to health or safety of persons unknown but particularly end users who may be in mind, was outweighed as it were in a balancing act by reference to the possible results that you sought to achieve at the end of the whole investigation. That was your state of mind?
A. It’s not quite a simple as that but that’s certainly part of it, yes.

Q. You considered that the supply of a kilo of cocaine could seriously endanger health or safety of persons who might be expected to use it?
A. This kilo are you saying?

Q. A kilo of cocaine.
A. Could.

Q. And this kilo of cocaine was no different to any other kilo except of course that it was reasonably potent because it was a reasonably higher purity, correct?
A. Perhaps in terms of the commodity but not necessarily in terms of the chain it was likely to follow given the history of these transactions.

Q. Nowhere in either the plan or the application is it made clear that it is more likely than not that the kilo of cocaine to be transacted would indeed proceed through to end use. You agree with me on that?
A. That’s correct.

Q. Did you think it relevant to include that fact?
A. As I said before, not particularly so.

Q. You were obviously mindful of the fact that the legislation includes a particular reference to conduct that is likely to seriously endanger health or safety of any person?
A. Yes, hence the inclusion of paragraph 16.

And lastly, we also have a view about the extent of that particular provision in the controlled operations legislation

89 In re-examination the following exchanges are pertinent in the present context:

“Q. You were asked, you gave in answer to a question about your consideration of the health and safety issue, if I can put it that way, three propositions, not all of which were explored with you. The first was the question of serious endangerment. You said you had a view about this but you didn’t express it. What is your view?

…

A. The view was that, given the information provided, that is that in the previous six months to the February delivery to Mr Gideon [sic] some 200 kilos of cocaine had been distributed through particular nominated and detailed supply routes, that the persons to whom these seven kilos were to be distributed would be the same persons who, on the information available both from Tom and what we previously knew were long time suppliers of cocaine with established networks, the likelihood was, the very strong likelihood that the users would be part of an existing long term supply chain and use chain, it would be going to people who were very familiar with the use of cocaine, people who would if not purchasing this cocaine would perhaps purchase other cocaine and that it was unlikely to be introduced to a new market, for example. They would be people familiar with the cocaine trade, as evidenced by the sale of the 200 kilos in a very short space of time.

90 Finally, Standen was referred to that part of his evidence which I have emphasised at [88] above in the following exchange:

“Q. And then you said you had a view of this particular provision, that is the one which I think it’s in section 7 of the Act which deals with health and safety which you didn’t express, what was the view which you held of that provision?

91 Although Bradley also gave evidence at the committal proceedings, the appellant did not refer the Court to any of his evidence going to the issue concerning s 7(1)(b). This is so notwithstanding that in the Dowe Authority Bradley stated in cl 5 thereof that he was satisfied as to the following:

“(b) No participant will engage in conduct that is likely to seriously endanger the health or safety of that or any other participant, or any other person, or to result in serious loss or damage to property.”

92 Notwithstanding that Bradley was merely repeating the provisions of s 7(1)(b) it does not appear that he was cross-examined to suggest that he did not hold an honest and genuine belief in the correctness of that statement of satisfaction. A similar statement was made by Standen in para 16 of his application for the Dowe Authority dated 23 February 2005, and which he refers to in the penultimate answer referred to in the exchange which I have recorded at [88] above.

93 In my opinion the evidence to which I have referred amply supports the Crown’s submission to the effect that, relevantly, Standen had a genuine belief that s 7(1)(b), on his understanding of it, did not prohibit the granting of the Dowe Authority. He was joined in this understanding, as I have observed, by Hall J and the majority of the Court of Appeal. I would therefore reject the appellant’s submission that there was anything unreasonable, reckless or careless in the interpretation of s 7(1)(b) which Standen adopted.

94 Further, the evidence to which I have referred above established that as far as Standen was concerned, he did not consider that actual harm would, or was likely to be, caused by the distribution of the 1kg of heroin the subject of the Dowe Authority to end users as that quantity would, no doubt, be broken up into much smaller parcels.

95 In the foregoing context the following observation of Magistrate Heilpern, who presided at the committal proceedings, is apposite. In response to a submission that the Dowe Authority was invalid with the consequence that the conduct of the operation which was undertaken pursuant to it was illegal, the learned Magistrate observed:

“But if you’re saying let’s imagine quite clearly – well hypothetically let’s say I accept that on the face of it there is a problem with the warrant in that the person who signed the warrant says that he’s satisfied there is to be no harm, and quite clearly from the evidence that I’ve had from Mr Standen it was not an unexpected outcome, and it was a probable outcome and that the cocaine would end up at street level, and we’ve established that there is somewhat around 100,000 discrete dosage uses, or units, as a result of the police operation, what difference does it make to what the application says?”

96 There is no doubt that, as it turned out, the conduct of the operation which was purportedly sanctioned by the Dowe Authority resulted in the unintentional commission of an offence, and a serious offence at that. However, I would reject the various epithets attributed to that conduct by the appellant namely, that a calculated risk was taken; that the interpretation placed on s 7(1)(b) was made recklessly or unreasonably; that Bradley and Standen were, at best, reckless as to whether a breach of the law would occur by the supply by Tom of 1kg of cocaine to Finch or that the conduct of the operation was deliberate in the sense that there was an intentional breach of the law or a reckless disregard of whether the carrying out of the operation under the Dowe Authority would result in the commission of an offence.

97 For the foregoing reasons the present case, in my opinion, is clearly distinguishable from Ridgeway. Not only did the relevant activities fall into the first category of cases referred to by the plurality in the passage from their judgment, which I have recorded at [78] above, but also the circumstances in which the illegal conduct was engaged in did not involve any mala fides on the part of those concerned up to the highest level. On the contrary, at all material times the relevant law enforcement officers had a bona fide belief that they were acting lawfully having obtained an authority which, had it been valid, had the effect of rendering the controlled operation undertaken according to its terms, lawful.

98 So far as the other matters relied upon by the appellant are concerned, generally speaking they were agitated before the trial judge on the s 138(1) application whose decision thereon is not the subject of challenge. Furthermore, I see no reason why the appellant should be afforded the opportunity of re-agitating his application to the trial judge based on the voir dire evidence before Judge Murrell with respect to the pre-22 February 2005 evidence upon which the Crown relied. Nor do I consider that that decision might have resulted in a different outcome had the s 138 application extended to the evidence which was gathered as a consequence of the undertaking of the controlled operation the subject of the Dowe Authority.

99 In the foregoing circumstances, when one comes to consider the matters to be taken into account pursuant to s 138(3), the following findings should be made:

(a) The probative value of the impugned evidence was high;

(b) The importance of that evidence is self-evident;

(c) The nature of the offence with which the appellant was charged was that it was one of considerable seriousness as the appellant in fact conceded;

(d) The gravity of the contravention of the DMT Act as a consequence of the invalidity of the Dowe Authority was, in the circumstances, low;

(e) The contravention was neither deliberate nor reckless in any relevant sense;

(f) No proceeding, as far as the Court is aware, has been taken against either Bradley or Standen as a consequence of the contravention and it is highly unlikely that any such action could be justified in the circumstances;
(g) The difficulty of obtaining the impugned evidence without contravening an Australian law was self-evident which is why, in light of Ridgeway , the Parliament enacted the LECO Act . Furthermore, the application for the Dowe Authority dated 22 February 2005 and signed by Standen, noted the necessity of Tom’s assistance who, as a registered informer, needed the protection of an authority granted under that Act. Further, in para 13 of the application, the following appears:

“13. Available methods of investigating the criminal activity that do not involve the use of controlled activity are limited to:

The use of electronic and physical surveillance, interrogation of law enforcement databases and informer information. The subjects of the investigation are professional criminals with significant experience and expertise in the conduct of their activities. Law enforcement intelligence suggests that the subjects and their associates have corrupt contacts within law enforcement agencies, government departments and other key organisations. I believe that the continued use of the methods outlined above may alert the subjects to the existence of the investigation, thereby enabling the subjects to suspend or conceal their activities and frustrate the investigation.

14. I believe that the nature and extent of the criminal activity is such as to justify the conduct of the operation and that the nature and extent of the proposed controlled activities are appropriate to the criminal activity.” (Emphasis in original)

(h) In para 3(b) of the Dowe Authority issued by him on 22 February 2005 Bradley stated that he was satisfied that:

“the nature and extent of the suspected criminal activity or corrupt conduct was such as to justify the conduct of a controlled operation.”

100 Finally, I refer back to the judgment of Judge Murrell of 4 May 2007, to refuse the application by the appellant under s 138(1) to exclude evidence obtained prior to 22 February 2005. Although the appellant suggested that in a new trial it would be open to him to re-agitate all the issues the subject of her Honour’s decision, it was not suggested on the appeal before us that her Honour’s decision was wrong or, at least, was other than one which she was entitled to reach. It was also submitted that if this Court was to decide the s 138 issue itself, it should “factor in” the findings of Judge Murrell.

101 However, Judge Hulme came to the same conclusion as Judge Murrell as to the admissibility of the pre-22 February evidence but for different reasons. As was the case with the findings of Judge Murrell, there was no challenge on the appeal to the findings of Judge Hulme with respect to that issue. The reasoning of neither judge with respect to their ruling on the admission of the pre-22 February evidence could in any conceivable manner be influenced by the subsequent invalidity of the Dowe Authority.

102 Accordingly, in my opinion there is no merit in the appellant’s submission that due to the invalidity of the Dowe Authority he should now be given the opportunity in a new trial to re-agitate on a further application under s 138(1) the admissibility of the pre-22 February evidence.

103 In the foregoing circumstances I am of the opinion that it is open for this Court, as we were invited to do by both parties, to determine for ourselves whether, notwithstanding the invalidity of the Dowe Authority, the evidence gained as a consequence of its execution should, as a matter of inevitability, be either admitted or excluded. If the Court was of the view that it was inevitable that the impugned evidence would be admitted then it was accepted that there would be no proper basis for the appellant’s conviction to be quashed and a new trial ordered so as to provide him with the opportunity to re-agitate an application under s 138 which would inevitably fail.

104 In my opinion, I have no doubt that in the circumstances to which I have referred, the discretion under s 138(1) to admit the impugned evidence would be exercised in favour of its admission. To suggest otherwise would be an exercise in futility.

Conclusion

105 For the foregoing reasons in my opinion there has been no miscarriage, let alone a substantial miscarriage, of justice due to the fact that the trial of the appellant proceeded on the basis that the authority pursuant to which he was supplied with 1kg of cocaine was subsequently determined by the High Court to be invalid. I would therefore reject the sole ground of appeal that was advanced and propose that the appellant’s appeal against his conviction be dismissed.

106 JAMES J: I agree with Tobias JA.

107 PRICE J: I agree with Tobias JA.

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Dowe v The Queen [2009] NSWCCA 23

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Elmir v R [2009] NSWCCA 22

Cases Citing This Decision

5

R v Simmons; R v Moore (No 2) [2015] NSWSC 143

R v Nunan [2025] NSWDC 293

Sheiles v The Queen [2018] NSWCCA 285

Cases Cited

6

Statutory Material Cited

5

Ridgeway v the Queen [1995] HCA 66

Dowe v Commissioner of the New South Wales Crime Commission [2007] NSWSC 166

Reported Decision:	193 A Crim R 220
Appeal Outcome:	Special leave dismissed by the High Court - 2 October 2009

CITATION:	Dowe v R [2009] NSWCCA 23
HEARING DATE(S):	10 December 2008
JUDGMENT DATE:	19 February 2009
JUDGMENT OF:	Tobias JA at 1; James J at 106; Price J at 107
DECISION:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - miscarriage of justice – particular circumstances involving miscarriage – improper admission or rejection of evidence – illegally obtained evidence – whether evidence obtained in consequence of a controlled operation should be admitted notwithstanding subsequent finding that the authority approving the operation was invalid – where law enforcement officers had bona fide belief in the lawfulness of the controlled operation – judicial discretion to admit or exclude evidence
LEGISLATION CITED:	Crimes Act 1914 (Cth) Customs Act 1901 (Cth) Drugs Misuse & Trafficking Act 1985 Evidence Act 1995 Law Enforcement (Controlled Operations) Act 1997
CASES CITED:	Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 Dowe v Commissioner of New South Wales Crime Commission [2007] NSWSC 166; (2007) 169 A Crim R 43 Dowe v Commissioner of New South Wales Crime Commission & Anor; Gedeon v Commissioner of New South Wales Crime Commission & Anor [2007] NSWCA 296; (2007) 177 A Crim R 44 Gedeon v Commissioner of New South Wales Crime Commission; Dowe v Commissioner of New South Wales Crime Commission [2008] HCA 43; (2008) 82 ALJR 1465 Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 R v Dowe [2007] NSWDC 92
PARTIES:	David Darley Dowe Regina
FILE NUMBER(S):	CCA 12169003/06
COUNSEL:	A: A Haesler R: W J Abraham QC / L K Crowley
SOLICITORS:	A: Legal Aid Commission, Sydney R: Commonwealth Director of Public Prosecutions, Sydney
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 06/11/0348
LOWER COURT JUDICIAL OFFICER:	Hulme DCJ
LOWER COURT DATE OF DECISION:	7 March 2008