Gedeon v The Queen
[2013] NSWCCA 257
•12 November 2013
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: GEDEON, Gilbert v R [2013] NSWCCA 257 Hearing dates: 25 - 26 March 2013 Decision date: 12 November 2013 Before: Bathurst CJ at [1]; Beazley P at [347]; Hoeben CJ at CL at [348]; Blanch J at [349]; Price J at [350] Decision: 1. Appeal against conviction dismissed.
2. Grant leave to appeal against sentence but dismiss the appeal.
Catchwords: CRIMINAL LAW - appeal against conviction - two counts of supply in contravention of the Drug Misuse and Trafficking Act 1985.
CONSTITUTIONAL LAW - inconsistency between State and Commonwealth laws - whether s 25 of the Drug Misuse and Trafficking Act 1985 is inconsistent with s 233B of the Customs Act 1901 (Cth).
EVIDENCE - admissibility - improperly obtained evidence - gravity of impropriety or contravention - evidence gathered pursuant to authority under the Law Enforcement (Controlled Operations) Act 1997 - authority subsequently held to be invalid.
EVIDENCE - admissibility - improperly obtained evidence - whether the trial judge correctly assessed the overall risk of harm of the controlled operation to the community.
EVIDENCE - admissibility - improperly obtained evidence - whether the trial judge erred in considering the defence of reasonable excuse in relation to s 233B of the Customs Act 1901 (Cth).
EVIDENCE - admissibility - improperly obtained evidence - whether desirability of admitting the illegally or improperly obtained evidence outweighed the undesirability.
EVIDENCE - witness - cross-examination on voir dire - privilege - self-incrimination - whether answers would tend to prove an offence against a law of a foreign country - proof of foreign law - whether the interests of justice required that the evidence be given over objection.
CRIMINAL LAW - sentencing - parity principle.Legislation Cited: Constitution, s 109
Crimes Act 1914 (Cth), ss 4C, 15I, 15M
Crimes Act 1958 (Vic), s 321
Criminal Appeal Act 1912, s 5F
Criminal Appeal Rules, r 4
Criminal Code Act 1995 (Cth), ss 11.2, 11.5, 13.3
Customs Act 1901 (Cth), ss 203A, 203C, 204, 205, 205C, 205G, 207, 229, 233B, 235, Sch VI
Defence Force Discipline Act 1982 (Cth)
Drug Misuse and Trafficking Act 1985, ss 3, 10, 25, 29, 33,
Evidence Act 1995, ss 103, 128, 137, 138, 142, 174, 175, 191
Law Enforcement (Controlled Operations) Act 1997, ss 6, 7
Law Enforcement (Controlled Operations) Regulation 1998, Sch 1
Traffic Act 1949 (Qld)
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
International Covenant on Civil and Political RightsCases Cited: Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253
BP Exploration Co (Libya) Ltd v Hunt [1980] 1 NSWLR 496
Bunning v Cross (1977) 141 CLR 54
Damberg v Damberg (2001) 52 NSWLR 492
Dickson v The Queen [2010] HCA 30; (2010) 241 CLR 491
Director of Public Prosecutions v Marijancevic [2011] VSCA 355; (2011) 33 VR 440
Director of Public Prosecutions v MD [2010] VSCA 233; (2010) 29 VR 434
Dowe v Commissioner of the New South Wales Crime Commission [2006] NSWSC 1312; (2006) 206 FLR 1
Dowe v Commissioner of New South Wales Crime Commission [2007] NSWCCA 296; (2007) 177 A Crim R 44
Dowe v The Queen [2009] NSWCCA 23; (2009) 193 A Crim R 220
Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124
Em v The Queen [2007] HCA 46; (2007) 232 CLR 67
Fleming v The Queen [2009] NSWCCA 233; (2009) 197 A Crim R 282
Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486
He Kaw Teh v The Queen (1984) 157 CLR 523
House v The King (1936) 55 CLR 499
Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540
JOD v R [2009] NSWCCA 205
Lee v New South Wales Crime Commission [2013] HCA 39
Marriage of Atkinson (1997) 136 FLR 347
McWaters v Day (1989) 168 CLR 289
Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1
Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 518-519
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 83 ALJR 494
Pham v The Queen [2009] NSWCCA 25; (2009); 193 A Crim R 190
Pollard v The Queen (1992) 176 CLR 177
R v Alexandroaia (1945) 81 A Crim R 286
R v Camilleri [2007] NSWCCA 36; (2007) 68 NSWLR 720
R v Campbell [2008] NSWCCA 214; (2008) 73 NSWLR 272
R v Campbell [1999] 1 SCR 565
R v Carey (1990) 20 NSWLR 292
R v Chow (1987) 11 NSWLR 561
R v Collisson [2003] NSWCCA 212; (2003) 139 A Crim R 389
R v Daher [1981] 2 NSWLR 669
R v Dalley [2002] NSWCCA 284; (2002) 132 A Crim R 169
R v Formosa [2005] NSWCCA 363
R v Gedeon [2009] NSWCCA 278
R v Helmhout [2001] NSWCCA 372; (2001) 125 A Crim R 257
R v Ireland (1970) 126 CLR 321
R v Ladocki [2004] NSWCCA 336
R v Latif and Shahzad [1996] 1 All ER 353; (1996) 1 WLR 104
R v Lodhi [2006] NSWSC 638; (2006) 199 FLR 328
R v MAK [2005] NSWCCA 98
R v MM [2004] NSWCCA 364
R v Mullen [2000] QB 520
R v R2 (1990) 19 NSWLR 513
R v Robinson [1999] NSWCCA 186
R v Salem (1997) 96 A Crim R 421
R v Standen [2011] NSWSC 1422
R v Stevens (1991) 23 NSWLR 75
Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19
Riley v R [2011] NSWCCA 238
Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 64 NSWLR 612
Ross v Internet Wines Pty Ltd [2004] NSWCA 195; (2004) 60 NSWLR 436
State of Victoria v The Commonwealth (The Kakariki) (1937) 58 CLR 618
Telstra Corporation Ltd v Worthing [1999] HCA 12; (1999) 197 CLR 61
The Parchim (1918) AC 157
United States v Bogart 783 F 2d 1428 (1986)
United States v Buishas 791 F 2d 1310 (1986)
United States v Santana (1993) 6 F 3d 1 (1993)
United States v Valona 834 F 2d 1334 (1987)
Ward v The Queen [2007] NSWCCA 22; (2007) 168 A Crim R 545
X7 v Australian Crime Commission [2013] HCA 29; (2013) 87 ALJR 858Texts Cited: Dicey, Morris and Collins on the Conflict of Laws, 15th ed (2012)
Nygh's Conflict of Laws in Australia, 8th ed (2010)
S Odgers, Uniform Evidence Law, 10th ed (2012)Category: Principal judgment Parties: Gilbert Gedeon (Appellant)
Crown (Respondent)
Attorney General of NSW (Intervening)Representation: Counsel:
P Hamill SC and P D Lange (Appellant)
D G Staehli SC and H Baker (Respondent)
M G Sexton SC and G Wright on behalf of the Attorney General
Solicitors:
Michael Doughty (Appellant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2006/13683 Publication restriction: No Decision under appeal
- Jurisdiction:
- 9101
- Before:
- Tupman DCJ
- File Number(s):
- 2006/11/0335
2006/13683
HEADNOTE
[This headnote is not to be read as part of the judgment]
The appellant was arrested as a result of a New South Wales Crime Commission (Commission) operation. The Commission, the Australian Federal Police and the New South Wales Police established a task force in late 2004 to investigate what they believed to be a major syndicate involved in the importation and distribution of cocaine. The operation arose from information supplied by an informer.
As part of the operation a number of authorities were issued pursuant to the Law Enforcement (Controlled Operations) Act 1997, which authorised certain conduct including that the informer possess and supply cocaine to persons including the appellant. This was done in the knowledge the cocaine would not be recovered.
Pursuant to controlled operations authorities, the informer supplied the appellant on two occasions in February and March 2005 with two kilograms and 750 grams of cocaine respectively. On 9 May 2005 the appellant was arrested and charged with two contraventions of s 25(2) of the Drug Misuse and Trafficking Act 1985.
The appellant and another person challenged the validity of the authorities. The High Court upheld the challenge in Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120. Subsequently the appellant made an application which included that all evidence sought to be relied on by the Crown be excluded pursuant to s 138 of the Evidence Act 1995.
The appellant also sought leave to cross-examine Mr Mark Standen, who at the relevant time was the Assistant Director of Investigations of the Commission, in relation to charges which had subsequently been brought against Mr Standen. Mr Standen objected on the basis that the evidence might tend to prove that he was guilty of an offence under Australian law or the law of a foreign country. The appellant made several applications to either compel Mr Standen to answer such questions or that his trial be adjourned until Mr Standen's proceedings were completed. The trial judge ruled against the appellant in relation to both matters.
The trial ultimately proceeded before the trial judge sitting alone. The appellant was convicted of both offences and was sentenced to a total term of 15 years' imprisonment with a non-parole period of 10 years' imprisonment.
The appellant appealed against his conviction and also sought leave to appeal against the sentence imposed. The issues for determination on the appeal were:
(i) whether s 25(2) of the Drug Misuse and Trafficking Act 1985 (Drug Act) was inconsistent with s 233B of the Customs Act 1901 (Cth) (Customs Act);
and further, whether the trial judge:
(ii) erred by applying the wrong test under s 138 of the Evidence Act by assessing the gravity of the impropriety or contravention by reference to, or comparison with, the offences with which the appellant was charged;
(iii) erred by applying the wrong test under s 138 of the Evidence Act by balancing the overall risk of harm to the public caused by the Commission supplying cocaine against bringing the drug network to an end, and further, by finding that the risk of adverse health consequences to end users was not high;
(iv) erred by failing to exclude certain evidence under s 138 of the Evidence Act by finding that it had not been obtained as a consequence of a breach of s 233B of the Customs Act as the participants had a 'reasonable excuse';
(v) in determining that the desirability of admitting evidence of the supplies to the appellant outweighed the undesirability of doing so, erred by failing to give weight to the harm to the public interest, affording too much weight to the beliefs of law enforcement officers that they were acting under a valid authority, and by failing to take into account further improprieties by law enforcement authorities;
(vi) erred in preventing the cross-examination of Mr Standen by concluding his answers would tend to prove that he had committed an offence against a law of a foreign country and, also, that it was not in the interests of justice that he be ordered to answer questions as he would be required to disclose his defence;
(vii) erred by refusing to adjourn the trial pending the outcome of Mr Standen's proceedings;
and further, in relation to sentence:
(viii) whether the appellant had a justifiable sense of grievance in light of the sentence imposed on a co-offender and a less severe sentence was warranted.
The Court held, dismissing the appeal:
In relation to (i):
(per Bathurst CJ, Beazley P, Hoeben CJ at CL, Blanch and Price JJ agreeing)
1. There is no inconsistency between s 25(2) of the Drug Act and s 233B of the Customs Act as the provisions are directed to different offences and there is no area of liability left open by the Customs Act that is closed by the Drug Act: [54]-[63] and [69].
He Kaw Teh v The Queen (1984) 157 CLR 523; R v Carey (1990) 20 NSWLR 292; State of Victoria v The Commonwealth(The Kakariki) (1937) 58 CLR 618; McWaters v Day (1989) 168 CLR 289; Dickson v The Queen [2010] HCA 30; (2010) 241 CLR 491; R v Stevens (1991) 23 NSWLR 75 considered. Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 applied.
2. In not providing for a defence of reasonable excuse, the Drug Act does not take away a right or privilege that is available under the Customs Act: [64]-[68].
Dickson v The Queen [2010] HCA 30; (2010) 241 CLR 491; R v Stevens (1991) 23 NSWLR 75; R v Daher [1981] 2 NSWLR 669 considered.
3. It would be immaterial if the effect of the Customs Act was that title to the drugs vested in the Commonwealth at the time of the offence; however, in any event, at the relevant time title had not vested in the Commonwealth: [70]-[71].
In relation to (ii):
(per Bathurst CJ, Beazley P, Hoeben CJ at CL, Blanch and Price JJ agreeing)
4. The nature of the offence and the gravity of the impropriety are two factors to be taken into account pursuant to s 138(3) of the Evidence Act. The approach of the trial judge did not demonstrate error; the fact that her Honour compared the appellant's conduct to that of the law enforcement officers does not mean that she failed to properly consider the matters in that subsection: [179]-[181].
R v Dalley [2002] NSWCCA 284; (2002) 132 A Crim R 169; Bunning v Cross (1977) 141 CLR 54 applied.
In relation to (iii):
(per Bathurst CJ, Beazley P, Hoeben CJ at CL, Blanch and Price JJ agreeing)
5. There was no evidence to justify the conclusion that the risk in releasing a significant amount of cocaine into the community was not high. However, the law enforcement officers' opinions were not irrelevant and the trial judge was entitled to accept their evidence that they believed the risk in distributing the drugs was outweighed by the risk in permitting the syndicate to continue: [182]-[186].
Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 considered.
6. The trial judge otherwise considered each of the matters referred to in s 138(3) of the Evidence Act which informed her ultimate conclusion: [187]-[189].
In relation to (iv):
(per Bathurst CJ, Beazley P, Hoeben CJ at CL, Blanch and Price JJ agreeing)
7. The fact that the law enforcement officers committed the acts with a view to investigating and prosecuting serious drug offences did not constitute a reasonable excuse. The Customs Act creates a scheme for the forfeiture of prohibited imports that leaves no room for goods to be used in an unauthorised operation, while the Crimes Act (Cth) makes limited provision for controlled operations: [190]-[198].
He Kaw Teh v The Queen (1984) 157 CLR 523 considered. Dowe v Commissioner of New South Wales Crime Commission [2007] NSWCCA 296; (2007) 177 A Crim R 44 applied.
8. The evidence obtained on 8 February and 16 March 2005 was produced by offences under the Customs Act: [199]-[202].
9. As a result of the errors found in relation to (iii) and (iv), it was necessary to consider the desirability of admitting the evidence illegally or improperly obtained against its undesirability. Having regard to the matters in s 138(3) of the Evidence Act, the trial judge was correct in admitting the evidence: [216]-[228].
In relation to (v):
(per Bathurst CJ, Beazley P, Hoeben CJ at CL, Blanch and Price JJ agreeing)
10. If the trial judge properly considered each of the factors under s 138(3) of the Evidence Act and the conclusion she reached was an appropriate exercise of her discretion, the fact she did not refer to the underlying rationale for excluding such evidence would not indicate error: [203]-[206].
R v Latif and Shahzad [1996] 1 All ER 353; (1996) 1 WLR 104; R v Campbell [1999] 1 SCR 565; United States v Santana (1993) 6 F 3d 1 (1993) considered.
11. The relevant law enforcement officers did not know that their conduct was improper and proceed in reckless disregard of that fact. The officers believed they were acting as part of an authorised operation and their conduct cannot be characterised as reckless: [207]-[213].
R v Helmhout [2001] NSWCCA 372; (2001) 125 A Crim R 257; Director of Public Prosecutions v Marijancevic [2011] VSCA 355; (2011) 33 VR 440 applied.
12. There was no causal link between the further improprieties of the law enforcement officers and the evidence which was produced: [214]-[215].
In relation to (vi):
(per Bathurst CJ, Beazley P, Hoeben CJ at CL, Blanch and Price JJ agreeing)
13. The trial judge did not err in finding that the interests of justice did not require Mr Standen to give evidence in relation to his pending charges. The trial judge was entitled to doubt whether additional cross-examination would alter the position and also to take account of Mr Standen's position: [284]-[296].
X7 v Australian Crime Commission [2013] HCA 29; (2013) 87 ALJR 858; Lee v New South Wales Crime Commission [2013] HCA 39 considered.
14. The trial judge was entitled to decline to permit the cross-examination of Mr Standen and to presume that Australian law was unlikely to differ greatly from foreign law as to the import and export of narcotic substances: [297]-[312].
Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331; BP Exploration Co (Libya) Ltd v Hunt [1980] 1 NSWLR 496; Marriage of Atkinson (1997) 136 FLR 347 considered. Damberg v Damberg (2001) 52 NSWLR 492 applied.
In relation to (vii):
(per Bathurst CJ, Beazley P, Hoeben CJ at CL, Blanch and Price JJ agreeing)
15. The decision of whether to grant an adjournment is discretionary and there was no basis to assess if the appellant's prospects would improve: [313]-[318].
In relation to (viii):
(per Bathurst CJ, Beazley P, Hoeben CJ at CL, Blanch and Price JJ agreeing)
16. The appellant was not entitled to have a legitimate sense of grievance in relation to the sentence that was imposed on a co-offender: [338]-[345].
Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 considered.
Judgment
BATHURST CJ: Gilbert Gedeon (the appellant) was charged on an indictment for two contraventions of s 25(2) of the Drug Misuse and Trafficking Act 1985 (Drug Act). The first count charged that between 5 February 2005 and 9 February 2005 the appellant supplied not less than the large commercial quantity of cocaine, whilst the second count charged that between 15 March 2005 and 18 March 2005 the appellant supplied not less than the commercial quantity of cocaine.
Following a trial before a judge sitting alone the appellant was convicted of both offences. He was sentenced on 7 May 2010 to a total term of 15 years' imprisonment with a non-parole period of 10 years' imprisonment. The appellant appeals against conviction and seeks leave to appeal against the sentence imposed.
Background
The appellant was arrested as a result of a New South Wales Crime Commission (Commission) operation codenamed "Mocha". As part of the operation the Commission caused authorities to be issued pursuant to the Law Enforcement (Controlled Operations) Act 1997 (Controlled Operations Act) authorising an informer known as "Tom" to sell cocaine to other persons. This was done in the knowledge that the cocaine would not be recovered. The appellant was one of the persons to whom the cocaine was sold. The evidence is set out in further detail below.
The appellant and another person, Mr David Dowe, challenged the validity of the controlled operations authorities, the challenge of which was ultimately successful: Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120.
Following the successful appeal to the High Court the appellant applied for a permanent stay of the proceedings and that "all the evidence sought to be relied upon by the Crown" be excluded pursuant to s 138 of the Evidence Act 1995. Following an extensive voir dire the trial judge ruled against the appellant.
One of the witnesses called by the Crown on the voir dire was a Mr Mark Standen, who at the time of the offences was the Assistant Director of Investigations of the Commission. The appellant sought leave to cross-examine Mr Standen in respect of certain charges that had subsequently been brought against Mr Standen. Mr Standen objected to answering such questions. The appellant sought an order from the trial judge that Mr Standen be compelled to answer such questions or that his trial be adjourned until the proceedings against Mr Standen were completed. Each application was refused by the trial judge. These matters are the subject of Grounds 6 and 7 of the grounds of appeal.
The trial judge at the conclusion of the voir dire determined that the challenged material, which comprised principally the evidence of Tom and recordings of conversations which he had with the appellant and other participants in the drug operations, was admissible. The appellant sought leave to appeal this decision under s 5F of the Criminal Appeal Act 1912. The Court of Criminal Appeal declined leave: R v Gedeon [2009] NSWCCA 278.
Following the unsuccessful application to the Court of Criminal Appeal the matter came back before the trial judge on 23 November 2009. A further application was made to cross-examine Mr Standen in respect of the charges laid against him which was refused. The trial judge again refused to adjourn the proceedings until Mr Standen's proceedings were finalised. Following the refusal of those applications the trial proceeded as a judge alone trial.
The trial did not involve any factual issues concerning the appellant's conduct. The appellant in fact made certain admissions pursuant to s 191 of the Evidence Act. As I indicated, following the trial the appellant was convicted of both offences.
The Crown case
From December 2004 a Joint Task Force (JTF) had been established between the Commission, the Australian Federal Police (AFP) and the NSW Police to investigate what they believed was a major drug syndicate involving the importation and distribution of cocaine. The information which led them to this belief was supplied by Tom.
Tom gave evidence that on 6 February 2005 he met with the appellant, a Mr Shane Hatfield and another member of the drug syndicate at Rushcutters Bay. The conversation was recorded by way of a listening device concealed on Tom. The effect of the conversation was that the appellant offered to purchase two kilograms of cocaine for $340,000 and Mr Hatfield agreed to the appellant paying $300,000 at the time of supply and $40,000 at a later time. Tom and the appellant agreed to meet at Five Dock on 8 February 2005 to complete the transaction.
Tom gave evidence that on 7 February 2005 he went with investigators to a bushland area in Wahroonga where seven kilograms of cocaine were buried. The cocaine was then taken to the Australian Government's National Measurement Institute for analysis. The seven blocks returned a gross weight of 6.975 kilograms with a purity of between 59.2% and 69.6%. Two kilograms were then taken to the Commission where they were stored in a safe in the office of Mr Standen.
On 8 February 2005, 2 one kilogram bags of cocaine with some Glucodin were repacked by Tom under police supervision. Later that day Mr Phillip Bradley, Commissioner and Chief Executive Officer of the Commission, purported to issue an authority under the Controlled Operations Act authorising Tom to supply the appellant or his agent with two kilograms of cocaine in return for payment of $340,000. It also authorised him to hand $340,000 cash representing the sale of the cocaine to Mr Hatfield.
Tom gave evidence that on 8 February 2005 he and the appellant arrived in separate vehicles at the car park of the Five Dock Leisure Centre. The conversation was recorded by a listening device and the meeting was the subject of video surveillance. Tom handed the appellant the bag containing two kilograms of cocaine and the appellant gave Tom a box containing $300,000 in cash. The appellant asked for more cocaine.
Mr Kelly Mansfield, an AFP Federal Agent, gave evidence that the appellant placed the bag containing the cocaine into the boot of a Camry motor vehicle. After Tom and the appellant parted, JTF officers took possession of the money which was found to total $300,050. The money was substituted with other cash and returned by Tom to Mr Hatfield.
Tom had a further meeting with the appellant and Mr Hatfield at Rushcutters Bay Park on 16 March 2005. Tom gave evidence that the effect of the conversation which took place on that day was that the appellant agreed to purchase a further 750 grams of cocaine for $120,000. It was agreed that Tom and the appellant would meet in the Five Dock area the next day but payment would be made later.
On 17 March 2005 another controlled operations authority was issued purporting to authorise Mr Standen and Mr McGann, another law enforcement officer, to possess 750 grams of cocaine and supply it to Tom. The authority also purported to authorise Tom to supply the appellant with 750 grams of cocaine in return for payment of $120,000 to be collected by Tom at a later date, retained by him and then handed to Mr Hatfield. Investigators supplied Tom with two bags containing that amount. On that day Tom met the appellant and handed him the cocaine.
Under the direction of JTF investigators Tom rang the appellant on 4 April 2005 and arranged to collect the outstanding $120,000. The payment was made on 6 April 2005. A controlled operations authority was also issued on 6 April 2005 purporting to authorise Tom to undertake that transaction.
The appellant was arrested on 9 May 2005.
The grounds of appeal
As the grounds of appeal raise discrete issues it is convenient to deal with them separately.
Ground 1 - Section 25(2) of the Drug Act is inconsistent with s 233B of the Customs Act 1901 (Cth) (the Customs Act) insofar as it purports to deal with prohibited imports and as a consequence the indictment and conviction should be quashed
Prior to dealing with this ground it is convenient to set out the relevant provisions of the Acts in question.
Section 25 of the Drug Act created the offence of supply of prohibited drugs. At the relevant time it was in the following terms:
"25(1) A person who supplies, or who knowingly takes part in the supply of, a prohibited drug is guilty of an offence.
(1A) A person of or above the age of 18 years who supplies, or who knowingly takes part in the supply of, a prohibited drug (other than cannabis leaf) to a person under the age of 16 years is guilty of an offence.
(2) A person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence.
(2A) A person of or above the age of 18 years who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug (other than cannabis leaf) which is not less than the commercial quantity applicable to the prohibited drug to a person under the age of 16 years is guilty of an offence.
(2B) Where, on the trial of a person for an offence under subsection (1A) or (2A), the jury are satisfied that the person charged had, at the time the offence is alleged to have been committed, reasonable cause to believe, and did in fact believe, that the person to whom the prohibited drug was supplied was of or above the age of 16 years, they may acquit the person of the offence charged and find the person guilty of an offence under subsection (1) or (2), respectively, and the person is liable to punishment accordingly.
(3) Where, on the trial of a person for an offence under subsection (2), the jury are not satisfied that the amount of prohibited drug involved is equal to or more than the commercial quantity applicable to the prohibited drug, they may acquit the person of the offence charged and find the person guilty of an offence under subsection (1), and the person shall be liable to punishment accordingly.
(4) Nothing in this section renders unlawful the supply of a prohibited drug by:
(a) a person licensed or authorised to do so under the Poisons Act 1966, or
(b) a person acting in accordance with an authority granted by the Secretary of the Department of Health where the Secretary is satisfied that the supply of the prohibited drug is for the purpose of scientific research, instruction, analysis or study, or
(c) a person acting in accordance with a direction given by the Commissioner of Police under section 39RA,
or renders unlawful the taking part by any other person in the supply of a prohibited drug by a person to whom paragraph (a), (b) or (c) applies.
(5) Nothing in this section renders unlawful the administration of a prohibited drug to a person being cared for by another person in the circumstances described in section 10(2)(d)."
Section 29 of the Drug Act sets out circumstances where possession is taken to be possession for supply. It provides as follows:
"29 A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall, for the purposes of this Division, be deemed to have the prohibited drug in his or her possession for supply, unless:
(a) the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply, or
(b) except where the prohibited drug is prepared opium, cannabis leaf, cannabis oil, cannabis resin, heroin or 6-monoacetylmorphine or any other acetylated derivatives of morphine, the person proves that he or she obtained possession of the prohibited drug on and in accordance with the prescription of a medical practitioner, nurse practitioner, midwife practitioner, dentist or veterinary surgeon."
It should be noted that a traffickable quantity for the drug in question is 3 grams.
Supply is defined in s 3 of the Drug Act as follows:
"supply includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things."
Section 33 provides a graduated scale of penalties for offences under s 25(2). It provides as follows:
"33(1) This section applies to the following offences:
(a) an offence under section 23(2), 24(2) or 25(2) or (2A),
(b) an offence under section 26 of conspiring to commit an offence referred to in paragraph (a),
(c) an offence under section 27 of aiding, abetting, counselling, procuring, soliciting or inciting the commission of an offence referred to in paragraph (a),
(d) an offence under section 28 of conspiring to commit, or of aiding, abetting, counselling, procuring, soliciting or inciting the commission of, an offence under a law in force outside New South Wales which corresponds to section 23(2), 24(2) or 25(2) or (2A).
(2) The penalty for an offence is:
(a) except as provided by paragraph (b), a fine of 3,500 penalty units or imprisonment for 20 years, or both, or
(b) where the offence relates to cannabis plant or cannabis leaf, a fine of 3,500 penalty units or imprisonment for 15 years, or both.
(3) Despite subsection (2), if the court is satisfied that the offence involved not less than the large commercial quantity of the prohibited plant or prohibited drug concerned, the penalty for the offence is:
(a) except as provided by paragraph (b), a fine of 5,000 penalty units or imprisonment for life, or both, or
(b) where the offence relates to cannabis plant or cannabis leaf, a fine of 5,000 penalty units or imprisonment for 20 years, or both.
(4) In this section:
large commercial quantity, in relation to a prohibited plant or prohibited drug, means the number or amount, if any, specified opposite the plant or drug in Column 5 of Schedule 1."
Finally, the provisions of s 4C(2) of the Crimes Act 1914 (Cth) should be noted:
"4C(2) Where an act or omission constitutes an offence under both:
(a) a law of the Commonwealth and a law of a State; or
(b) a law of the Commonwealth and a law of a Territory;
and the offender has been punished for that offence under the law of the State or the law of the Territory, as the case may be, the offender shall not be liable to be punished for the offence under the law of the Commonwealth."
A commercial quantity of cocaine under Schedule 1 to the Drug Act is 250 grams. A large commercial quantity is one kilogram. The effect of s 4 of the Drug Act is that it is not necessary for the prosecutor to prove the precise amount of the particular prohibited drug contained in any substance which is the subject of the charge including for the purpose of the deeming provision in s 29: R v R2 (1990) 19 NSWLR 513 at 514-515.
The relevant provision of the Customs Act, s 233B, provided at the time as follows:
"233B(1) A person commits an offence if:
(a) the person:
(i) possesses goods on board a ship or aircraft; or
(ii) brings goods into Australia; or
(iii) imports goods into Australia; or
(iv) possesses goods that have been imported into Australia in contravention of this Act; or
(v) conveys goods that have been imported into Australia in contravention of this Act; or
(vi) possesses goods that are reasonably suspected of having been imported into Australia in contravention of this Act; or
(vii) fails to disclose to an officer on demand any knowledge in his or her possession or power concerning the importation or intended importation, or bringing or intended bringing, into Australia of goods; and
(b) the goods are a prohibited import to which this section applies.
(1AAB) Subparagraph (1)(a)(i), (ii), (iv), (v) or (vi) does not apply if the person proves that the person had a reasonable excuse for doing the act referred to in that subparagraph.
(1AAC) A person commits an offence if:
(a) the person:
(i) exports goods from Australia; or
(ii) fails to disclose to an officer on demand any knowledge in his or her possession or power concerning the exportation or intended exportation from Australia of goods; and
(b) the goods are a prohibited export to which this section applies.
(1AA) For the purposes of an offence against subparagraph (1)(a)(i), absolute liability applies to the physical element of circumstance of the offence, that the relevant possession is on board any ship or aircraft.
Note: For absolute liability, see section 6.2 of the Criminal Code.
(1AB) For the purposes of an offence against subparagraph (1)(a)(iv) or (v), absolute liability applies to the physical element of circumstance of the offence, that the prohibited imports have been imported into Australia in contravention of this Act.
Note: For absolute liability, see section 6.2 of the Criminal Code.
(1AC) For the purposes of an offence against subparagraph (1)(a)(vi), absolute liability applies to the physical element of circumstance of the offence, that the prohibited imports are reasonably suspected of having been imported into Australia in contravention of this Act.
Note: For absolute liability, see section 6.2 of the Criminal Code.
(1A) On the prosecution of a person for an offence against subsection (1), being an offence to which subparagraph (1)(a)(iv) applies, it is a defence if the person proves that he or she did not know that the goods in his or her possession had been imported into Australia in contravention of this Act.
(1B) On the prosecution of a person for an offence against subsection (1), being an offence to which subparagraph (1)(a)(vi) applies, it is a defence if the person proves that the goods were not imported into Australia or were not imported into Australia in contravention of this Act.
(1C) Any defence for which provision is made under either of the last 2 preceding subsections in relation to an offence does not limit any defence otherwise available to the person charged.
(2) The prohibited imports to which this section applies are prohibited imports that are narcotic goods and the prohibited exports to which this section applies are prohibited exports that are narcotic goods.
(3) A person who is guilty of an offence against subsection (1) of this section is punishable upon conviction as provided by section 235.
(4) This section shall not prevent any person from being proceeded against for an offence against any other section of this Act, but he shall not be liable to be punished twice in respect of any one offence."
Section 229(1)(b) provides that prohibited imports shall be forfeited to the Crown.
At the time of the offences the penalty prescribed for a contravention of s 233B involving the importation of a commercial quantity of a narcotic substance was a fine not exceeding 7,500 penalty units or imprisonment for life or both, or for such period as the court thinks appropriate: s 235(2)(c). A commercial quantity of cocaine under Schedule VI of the Customs Act was defined as two kilograms, and further, unlike the Drug Act the quantity was measured by reference to the amount of pure cocaine found in the substance.
Cocaine is defined as a prohibited drug for the purpose of the Drug Act and a prohibited import for the purpose of the Customs Act.
The submissions of the parties
(a) The appellant's submissions
The appellant acknowledged that his submission on this ground was contrary to what was decided by this Court in R v Stevens (1991) 23 NSWLR 75. However, he submitted that this decision should not be followed in light of the decision of the High Court in Dickson v The Queen [2010] HCA 30; (2010) 241 CLR 491 (Dickson).
The appellant emphasised that he was relying on what he described as direct inconsistency. He submitted that in R v Stevens supra the focus of the Court was instead on indirect inconsistency, namely whether it was the intention of the Commonwealth legislature to cover the field.
The appellant submitted there was direct inconsistency between s 233B of the Customs Act and s 25 of the Drug Act. He submitted that s 25 by definition includes the act of possession, relying on the definition of supply in s 3 in conjunction with the deemed supply provision in s 29. He submitted that the prohibition was absolute and the defence of reasonable excuse contained in s 223B(1AAB) of the Customs Act was not available. He also relied on the fact that as was the case in Dickson, the offence related to Commonwealth property by reason of s 229(1)(b) of the Customs Act.
In supplementary submissions filed after the decision of the High Court in Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 (Momcilovic), the appellant pointed to the width of the phrase "reasonable excuse" in s 233B(1AAB), submitting that it was an "exception, exemption, excuse, qualification or justification" within the meaning of s 13.3 of the Criminal Code Act 1995 (Cth) (Criminal Code). He submitted that the position was analogous to that in Dickson. He pointed out that in relation to conspiracy, s 11.5(5) of the Criminal Code provided for the defence of withdrawal from the conspiracy in contrast to the provisions of s 321 of the Crimes Act 1958 (Vic). He submitted that s 233B(1AAB) of the Customs Act similarly provides a defence not available under the Drug Act. He submitted that the High Court in Momcilovic adopted the same approach as in Dickson.
The appellant submitted that the Commonwealth had specifically legislated not only in relation to the importation of narcotics but also to their subsequent possession. He submitted that the Drug Act criminalises the same conduct and therefore closes up one area deliberately left open by the Commonwealth, namely, by removing the possibility that a person in possession might reasonably be excused. He submitted this was a direct inconsistency.
At the hearing counsel for the appellant submitted that the defence was in the nature of a right or privilege conferred by the paramount legislature which was taken away by the State legislature. He submitted that the fact it is possible to obey both sets of provisions is not sufficient to avoid such inconsistency.
Counsel for the appellant also sought to show inconsistency by way of a comparison between s 10 of the Drug Act which creates the offence of possession of prohibited drugs and s 233B(1)(iv) of the Customs Act which concerns possession of imported prohibited drugs. He submitted that by comparison with s 10, s 233B(1)(iv), by reason of s 233B(1AAB), provided for the defence of reasonable excuse. He submitted that that added weight to the proposition that the Customs Act preserves an area free from liability which was taken away by the Drug Act.
Counsel for the appellant, relying on Dickson, submitted that the offence charged involved dealing with Commonwealth property. He pointed out that the inconsistency in Dickson was found to exist only so far as the Victorian statute in issue related to Commonwealth property. The submission presumably was that the State legislation was not dealing with purely State supply but with Commonwealth property and the question of inconsistency had to be considered on that basis.
Counsel for the appellant emphasised that in considering this issue the paramount consideration is the text of the legislation and whether there is a direct inconsistency such that s 109 of the Constitution is invoked. He submitted that it was incorrect or irrelevant to say that the reasonable excuse defence was co-extensive with defences available at common law. He submitted that if this was the case there would have been no need to include it. He also submitted that the common law defences were provided for in Chapter 2 of the Criminal Code which applied to offences against the Customs Act. He submitted that in those circumstances the defence of reasonable excuse must mean something other than what is contained in Chapter 2 of the Criminal Code.
(b) The Attorney General's submissions
The New South Wales Attorney General intervened in the proceedings. The Attorney submitted that the relevant legislation did not deal with the same conduct; he submitted that s 25 of the Drug Act dealt with supply whereas s 233B of the Customs Act dealt with importation. The Attorney submitted that the most that could be said was that the offences share a common element, namely possession of certain substances. However, he submitted this was not the conduct criminalised by s 25 of the Drug Act.
The Attorney pointed to the two different mental elements for each offence. In relation to possession the prosecution bears the onus of showing that the accused knew that he or she had physical control of the substance, whilst in relation to s 25 it is necessary to establish not only the element of possession but also the intention of supplying the drugs to another person.
The Attorney submitted the decision in R v Stevens supra remains good law. He submitted that Lee CJ at CL was correct in stating that the provisions were directed to fundamentally different purposes; the Customs Act provisions were directed at importation whereas the Drug Act provisions concerned the control of narcotics within the State, irrespective of their origin.
The Attorney submitted that the attempt by the appellant to distinguish R v Stevens supra on the basis that it was only concerned with indirect inconsistency was based on the erroneous assumption that there was a categorical distinction between direct and indirect inconsistency. The Attorney pointed out that in all cases it was necessary to carefully analyse the laws in question to determine their true construction and scope referring, to what was said by Gummow J in Momcilovic at [245].
The Attorney submitted that the inconsistency found in Dickson did not turn solely on the fact that there were differences between the criteria for criminal culpability between the State and Commonwealth laws in question, but rather, the particular character and context of those differences. He submitted that in contrast to the present case, the Commonwealth legislation in Dickson reflected the deliberate choice to exclude certain aspects of conduct covered by the State legislation.
The Attorney submitted that Dickson was not authority for the proposition that State legislation is directly inconsistent with Commonwealth legislation for the purpose of s 109 of the Constitution if the State legislation omits a defence provided for in the Commonwealth legislation. The Attorney noted that Dickson did not overrule McWaters v Day (1989) 168 CLR 289, and that in Momcilovic, Crennan and Kiefel JJ at [637] cited McWaters v Day as authority for the proposition that inconsistency did not arise merely because of the existence of differences between the two law.
The Attorney submitted that the notion of reasonable excuse is largely co-extensive with defences available under the common law that are applicable to offences such as those established under s 25(2) of the Drug Act. At the hearing the Solicitor General emphasised that it was incorrect to state that the two sections in question criminalised the same conduct.
(c) The Crown's submissions
The Crown, which adopted the submissions of the Attorney General, emphasised that the Customs Act provision was a limited regime that criminalised acts related to the importation of narcotic goods. The Crown referred to what was said by Spigelman CJ in R v Campbell [2008] NSWCCA 214; (2008) 73 NSWLR 272 that the Commonwealth in passing the legislation relied on the external affairs power and, in these circumstances, it was hardly surprising that the focus of the section was on imports. The Crown submitted that this statement were consistent with the approach in R v Stevens supra.
The Crown also emphasised that no reliance was placed on the deeming provision in s 29 of the Drug Act in respect of the charges against the appellant.
The Crown pointed out that the concept of supply involved the transferring to another of the substance needed, wanted or requested by the person to whom it was to be given and, consequently, it was the physical act of receiving for supply which was the nub of the offence. The Crown pointed out that other physical acts in the definition did not necessary involve possession. The Crown submitted that it was inconceivable that the forfeiture provisions could not prevent the State criminalising such acts.
Senior counsel for the Crown submitted that contrary to what was put by the appellant, the goods were not Commonwealth property. He submitted that although the goods were forfeited under s 229(1)(b), title did not pass to the Crown until the goods were condemned as forfeited by s 205C of the Customs Act.
In common with the Solicitor General, senior counsel for the Crown emphasised that s 233B was not directed to supply of drugs.
Consideration
As I indicated above, the appellant placed reliance on what was described as direct inconsistency between s 233B of the Customs Act and s 25 of the Drug Act. However, as Gummow J pointed out in Momcilovic, care must be taken in speaking of different classes of inconsistency to not obscure the test where reliance is placed on s 109, namely, to apply that provision only after analysis of the laws in question to determine their construction: Momcilovic supra at [245], [261]; see also Crennan and Kiefel JJ at [637].
In Momcilovic each member of the Court explained that in considering whether s 109 will apply in any particular case, the intention of federal Parliament is ascertained by the conventional process of statutory construction: Momcilovic supra at [111] per French CJ; [245] and [258] per Gummow J; [315] per Hayne J; [474] per Heydon J; [637] per Crennan and Kiefel JJ; [660] per Bell J).
In the present case it is clear from the language of s 233B of the Customs Act that the section relates to imported goods. Although the offence extends beyond the importation of such goods, those provisions, namely s 233B(1)(iv)-(vii), relate either to goods which have been imported, are reasonably suspected of having been imported or in the case of s 233B(1)(vii), the intended importation of goods.
The fact that the section is concerned with imported goods can also be shown from the fact that in passing the legislation Parliament invoked its constitutional authority over external trade and commerce. As Spigelman CJ pointed out in R v Campbell supra at [107], the entire focus of the section is on imports and exports.
To establish an offence under s 233B the prosecution must prove beyond reasonable doubt that the accused knew he or she had the prohibited import in their possession: He Kaw Teh v The Queen (1984) 157 CLR 523 at 545, 584, 589 and 603. It is only if the prosecution can prove that element of the offence that the defence of reasonable excuse under s 233B(1AAB) may arise.
By contrast, s 25(1) of the Drug Act deals with the supply of drugs within this jurisdiction whether imported or otherwise. The relevant mental element is the intent to supply or to do any of the other acts contained in the extended definition of supply in s 3 of the Drug Act. Supply in that context means to furnish or to provide something which is needed or wanted or required by the person to whom it is given and does not include merely returning it to its owner: R v Carey (1990) 20 NSWLR 292 at 294.
The appellant's contention that there is direct inconsistency is not based on the proposition that there are conflicting duties imposed by both legislatures, but rather, that the State Act alters, impairs or detracts from the operation of the federal Act. The principle was expressed in these terms by Dixon J in the State of Victoria v The Commonwealth (The Kakariki) (1937) 58 CLR 618 at 630; see also Telstra Corporation Ltd v Worthing [1999] HCA 12; (1999) 197 CLR 61 at [27]-[28]; Dickson at [13]; Momcilovic at [264], [627]. The appellant's contention was that there was a direct collision between the two pieces of legislation in the sense that the Drug Act imposed a greater obligation than provided for by the Customs Act: Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253 at 258-259; Telstra Corporation Ltd v Worthing supra at [27]; Dickson at [22], or that the Drug Act took away a right deliberately excluded from conduct rendered criminal by the Customs Act: Dickson at [22].
In considering the issue it must be borne in mind that inconsistency does not arise merely because the relevant federal and State statutes deal with the same matters in different terms, unless the language of the federal statute indicates an intention that its law be the only law on the subject matter: McWaters v Day supra at 296; Momcilovic at [637].
An example of two laws operating concurrently in this sense can be found in The Kakariki, in which the respective Commonwealth Navigation Act and State Marine Act provided for the removal of ships sunk in a port within the State of Victoria. Dixon J pointed out that in such circumstances there was no reason for treating the federal legislation as intending to do more than confer a concurrent or parallel power to enforce the removing of wrecks; his Honour stated that there would be operational inconsistency if there were simultaneous attempts by both authorities to remove a wreck. The question of dual prosecution in the present case is dealt with by s 4C(2) of the Crimes Act (Cth), to which I have referred above.
McWaters v Day supra involved offences of driving whilst intoxicated under the Traffic Act 1949 (Qld), which carried a maximum penalty of nine months' imprisonment or a fine of $1,400 or both, and the Defence Force Discipline Act 1982 (Cth), which imposed liability for a similar offence on a defence member or defence civilian with a maximum penalty of 12 months' imprisonment. The High Court held that there was no inconsistency and made the following comments at 299:
"Since the Discipline Act is supplementary to, and not exclusive of, the ordinary criminal law, it follows that it does not deal with the same subject-matter or serve the same purpose as laws forming part of the ordinary criminal law. The result is that there is no inconsistency between s. 40(2) of the Discipline Act and s. 16(1) of the State Act for the purposes of s. 109 of the Constitution. It is accordingly unnecessary to consider the appellant's contention that s. 40(2) is invalid."
In the present case the appellant's submission was that in not providing for the defence of reasonable excuse, the Drug Act took away what was described by his counsel as a right or privilege available under the Customs Act, namely, the possession of an imported drug with reasonable excuse. That submission seems to me to be misconceived for a number of reasons.
First, the Drug Act is dealing with supply and not possession of a drug. The necessary element is intention to supply the drug. It is difficult to see how if the accused was shown to have possession for supply there could be a reasonable excuse for possession. That is illustrative of the fact that the two pieces of legislation are operating in different spheres.
Second, as was pointed out in R v Daher [1981] 2 NSWLR 669 at 672, the matters encompassed within the concept of reasonable excuse are largely co-extensive with common law defences, answers, justifications or excuses. The difference is that under the Customs Act the onus is clearly on the defendant to establish such justifications or excuses.
The deeming provision in s 29 of the Drug Act does not affect the position. It reverses the onus of proof in relation to supply in cases where the Crown has established beyond reasonable doubt that the accused had in his or her possession not less than the trafficable quantity of a prohibited drug. Reversing the onus in that way does not take away any right or liberty left open by the Customs Act, nor does it alter, impair or detract from it.
The present case can be contrasted with Dickson, which involved two laws covering the same area, namely conspiracy to steal Commonwealth property. The federal legislation in requiring an overt act and permitting withdrawal from the conspiracy prior to the commission of such an act was said to exclude a significant area of conduct to which the State law attached and the State law thus closed a significant area of liberty left open by the federal law: Dickson supra at [25]. The High Court described the inconsistency in the following terms:
"[22] The direct inconsistency in the present case is presented by the circumstance that s 321 of the Crimes Act (Vic) renders criminal conduct not caught by, and indeed deliberately excluded from, the conduct rendered criminal by s 11.5 of the Criminal Code (Cth). In the absence of the operation of s 109 of the Constitution, the Crimes Act (Vic) will alter, impair or detract from the operation of the federal law by proscribing conduct of the appellant which is left untouched by the federal law. The State legislation, in its application to the presentment upon which the appellant was convicted, would undermine and, to a significant extent, negate the criteria for the existence and adjudication of criminal liability adopted by the federal law. No room is left for the State law to attach to the crime of conspiracy to steal property in the possession of the Commonwealth more stringent criteria and a different mode of trial by jury. To adapt remarks of Barwick CJ in Devondale Cream, the case is one of 'direct collision' because the State law, if allowed to operate, would impose upon the appellant obligations greater than those provided by the federal law."(Citation omitted)
In the present case as I have sought to demonstrate, the relevant legislation is directed to different offences and there is no area of liability left open by the Commonwealth which is closed by the Drug Act.
Further, it would be immaterial in my opinion, if the effect of the Customs Act was that title to the drugs vested in the Commonwealth at the time that the offence took place. The offence is the supply of drugs and there is no reason to conclude that the Commonwealth legislature intended to deliberately leave open an area of liability in respect of supply resulting from title to such drugs vesting in the Commonwealth by virtue of the provisions in the Customs Act.
In any event at the relevant time title had not vested in the Commonwealth. Although the drugs are forfeited to the Commonwealth by virtue of s 229(1)(b), for title to pass the goods need to be seized either with or without a warrant pursuant to s 203A or s 203C of the Customs Act and a seizure notice issued in accordance with the terms of s 205. If no claim for the goods is made at the end of 30 days after the issue of the notice, the goods are taken to be condemned as forfeited to the Crown. It is at this point the title vests in the Commonwealth pursuant to s 205G of the Customs Act. This process had not occurred at the time of the offences and, as such, title of the goods had not vested in the Commonwealth.
It follows from what I have said that R v Stevens (1991) 23 NSWLR 75, although dealing with the question in the context of argument based on indirect inconsistency, was correctly decided.
In these circumstances Ground 1 of the grounds of appeal is not made out.
Grounds 2 to 5 - Incorrect application of s 138 of the Evidence Act 1995 in the admission of evidence establishing the Crown case
Grounds 2 to 5 are as follows:
"2) Her Honour erred in law, and applied the wrong test under s. 138 Evidence Act 1995, by assessing 'the gravity of the impropriety or contravention' for the purpose of s. 138(3)(d) by reference to, or comparison with, the gravity of the offence with which the appellant was charged.
3) Her Honour erred in law, and applied the wrong test under s. 138 Evidence Act 1995, by balancing the 'overall risk' of harm to the public caused by the NSW Crime Commission supplying cocaine against the 'desirability of bringing to an end the drug importation and distribution network'.
3)A The trial judge erred in finding as a fact that the risk of adverse health consequences to end users was 'not high' in the absence of evidence capable of supporting that finding.
[This ground was added pursuant to leave granted during the hearing of the appeal.]
4) Her Honour erred in failing to exclude the evidence relating to the events of 8 February and 16 March 2005 pursuant to s. 138 Evidence Act 1995, because the learned trial judge determined erroneously that the evidence had not been obtained in consequence of a breach of Commonwealth law, specifically:
i) Her Honour erred in concluding that the actions of the authorities and Tom on 8 February and 16 March were not criminalised by Commonwealth law, since each participant had a 'reasonable excuse' and therefore there had been no violation of s. 233B Customs Act 1901 (C'th); and
ii) Her Honour erred in concluding that, if the defence of reasonable excuse did not apply, then the evidence was not obtained in consequence of the actions of Tom and the authorities;
5) In determining that the desirability of admitting the evidence of the supplies to the appellant outweighed the undesirability of admitting the evidence pursuant to s. 138 Evidence Act 1995, her Honour erred by:
i) Failing to give sufficient weight, or any weight at all, to the harm to the public interest caused by the actions of the authorities;
ii) Affording too much weight to the stated beliefs of the law enforcement personnel that they were acting pursuant to a valid authority issued in accordance with the Law Enforcement (Controlled Operations) Act 1997; and
iii) Failing to take into account a number of other improprieties, such as (a) the failure to comply with Commonwealth law in terms of forfeiture of the cocaine, (b) the failure to attempt to obtain a controlled operations certificate under Commonwealth law in circumstances where such a certificate would not, and could not, lawfully be issued, (c) the failure to comply with standards relating to the handling of exhibits, particular drug exhibits, (d) the failure to comply with standards relating to the maintenance of the proceeds of crime, and (e) the failure to comply with procedures and protocols relating to the control and handling of informants."
I have referred earlier in this judgment to the fact that the appellant sought orders that all the evidence against him be excluded. After an extensive voir dire the trial judge concluded in a judgment given on 14 September 2009 that the evidence she found to be illegally obtained should be admitted under s 138 of the Evidence Act, whilst part of the evidence the subject of the challenge was not obtained improperly or illegally.
As Grounds 2 to 5 to some extent overlap, it is convenient to deal with them together.
The judgment of the trial judge
The trial judge referred to the fact that the controlled operations authorities were held to be invalid by the High Court in Gedeon v Commissioner supra, and to the subsequent decision of the this Court in Dowe v The Queen [2009] NSWCCA 23; (2009) 193 A Crim R 220, which held that the evidence against the appellant Mr Dowe was admissible under s 138 of the Evidence Act. The trial judge accepted that having regard to the different evidence and submissions before her, the decision in Dowe did not govern the outcome of the application.
The trial judge accepted that the evidence obtained as a result of the two controlled operations authorities was illegally obtained and consequently, the Crown bore the onus under s 138 of the Evidence Act of establishing its admissibility. The trial judge dealt separately with the categories of evidence said to have been illegally obtained which were not protected by the controlled operations authorities.
The first piece of evidence was the conversation of 6 February 2005 to which I have referred in par [11] above. Her Honour held that evidence was not obtained in contravention of Australian law, the conversation having been recorded pursuant to a validly obtained listening device warrant. She concluded that there was no inducement or entrapment of the type referred to in Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19.
The second category was the recovery of the seven kilograms of cocaine from bushland at Wahroonga to which I have referred in par [12] above. Her Honour accepted that this conduct was capable of constituting an offence under the Drug Act. She accepted that this illegal activity produced the evidence about the cocaine including the fact that it was cocaine, its quantity, its provenance and by allowing the commencement of the chain of continuity which ended with its supply to the appellant. Her Honour accepted that it was inadmissible under s 138(1) of the Evidence Act, unless admitted in the exercise of the discretion under that section.
The third category was the packaging of the 2 one kilogram bags of cocaine on 8 February 2005 referred to in par [13] above. The trial judge accepted this involved a contravention of the Drug Act and that it produced evidence to be relied upon. She again concluded that this evidence was inadmissible under s 138(1) of the Evidence Act subject to the exercise of her discretion.
The fourth category was evidence that on 22 February 2005 Tom was given one kilogram of cocaine at the offices of the Commission and, in the presence of law enforcement officers, prepared it for sale by dividing it into one bag of 750 grams and one bag of 250 grams. The trial judge accepted this contravened the Drug Act and produced evidence which was inadmissible under s 138(1) subject to the exercise of her discretion.
The fifth category related to the conversation of 16 March 2005 referred to in par [16] above. Her Honour accepted the argument that the entry into the agreement made in that conversation constituted an offence under the Drug Act, but rejected the proposition that the conversation produced the evidence relied upon by the Crown.
Her Honour then referred to the other items of illegality relied upon by the appellant. The first concerned possessing and dealing with Commonwealth goods in contravention of the Customs Act without obtaining a Commonwealth controlled operations certificate pursuant to s 15M of the Crimes Act (Cth).
Her Honour accepted that there was no application for such a certificate, that the cocaine was a prohibited import and that there were special provisions relating to prohibited imports which were forfeited to the Crown. I have summarised these provisions in par [71] above. Her Honour also accepted that possessing and conveying cocaine without reasonable excuse was an offence against the Customs Act. Her Honour, however, found that there was a reasonable excuse in that the acts were done with a view to investigating and prosecuting serious drug offences. She rejected the proposition that failure to deal with the drugs in accordance with the Commonwealth or State legislation or policing guidelines, removed the reasonable excuse. She declined to follow the minority judgment of Basten JA in Dowe v Commissioner of New South Wales Crime Commission [2007] NSWCCA 296; (2007) 177 A Crim R 44 (Dowe (No 2)) to the contrary, stating the High Court did not deal with this issue.
Her Honour, however, accepted that as a result of s 15I(2A) and s 15M(e) of the Crimes Act (Cth), no such Commonwealth certificate could be issued where illicit drugs were likely to pass out of the control of the relevant law enforcement authority. However, she stated that this did not alter the defence of reasonable excuse.
Her Honour also expressed the view that even if those illegalities occurred, they did not produce the evidence which the Crown sought to rely on.
Her Honour then dealt with illegality said to have arisen between the two controlled operations authorities of 8 February and 17 March 2005, when Mr Standen and other law enforcement operators supplied the balance of the seven kilograms of cocaine to Tom to supply to other people pursuant to a controlled operations authorities not challenged in the High Court. The trial judge held that notwithstanding the lack of challenge, the controlled operations authorities should be regarded as invalid as having been issued in almost identical circumstances. However, she concluded there was no causal connection between the illegalities and the evidence.
The trial judge noted that the allegation of illegality based on a failure to deal legally with the proceeds of crime was not pursued in argument, and further, her Honour rejected the proposition that Tom was induced or encouraged to engage in criminal activities.
Her Honour's conclusion was that, subject to the exercise of her discretion under s 138 of the Evidence Act, the evidence of unearthing the cocaine on 7 February, the preparation of it by Tom on 8 and 22 February, and the evidence concerning its transfer from law enforcement officers to Tom and supply to the appellant, was illegally obtained and therefore inadmissible.
The trial judge also dealt with the argument that the evidence was infected with a number of improprieties. She accepted, in accordance with Ridgeway supra at 36, that improper conduct is conduct falling below "the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement". She said that on one view it was not necessary to deal with the issue as most of the evidence in any event would be inadmissible as illegally obtained unless the discretion under s 138 was exercised. However, she accepted the question of improprieties was relevant to the exercise of her discretion.
The first alleged impropriety was failing to conform to exhibit handling protocols in relation to drugs, proceeds of crime and related evidence. The trial judge accepted that the activities which took place were not in accordance with those protocols and it was never intended that the drugs be dealt with in accordance with them. However, she did not accept that this was inconsistent with the minimum standards required of law enforcement officers. She referred to the fact that all of the dealings were recorded on video or in statements of officers who knew and understood that the activities were being undertaken as part of a controlled operation.
The second alleged impropriety was the seizure by and storage of drugs at the Commission. The trial judge stated this did not amount to an impropriety for the same reasons as she had given in relation to the failure to follow protocols.
The third alleged impropriety was the failure to comply with informer management policies, protocols and requirements including the failure to ascertain the full extent of Tom's criminality. The trial judge accepted there was a failure to comply with the informer management policies, pointing to the failure by Mr Standen to keep records, absence of any direct supervision of Mr Standen and the fact there was no co-handler.
However, her Honour said that when viewed in context this conduct did not amount to impropriety. She pointed to the fact that there was some record of Mr Standen's dealing with Tom, that Mr Standen reported on an ongoing basis to Mr Bradley and that there was a formal record of interview with Tom. The trial judge also stated that there was no evidence that any of this conduct produced the evidentiary material complained of or that any different evidence would have been produced if Tom had been managed entirely within the policy guidelines.
The fourth category was dealing with money provided to the Commission by Tom. The trial judge accepted that Tom provided money in a bag handed to a law enforcement officer, Mr Mansfield, and then to Mr Standen probably on 7 February 2005. The bag was later given by Mr Standen to the Commission and receipted as $65,000. Tom in his evidence said he could not recall how much was handed over but said it was between $35,000 and $80,000. The trial judge said given the large sums involved it was not noteworthy, but accepted there was potential that Tom was providing money to Mr Standen for the latter's private purposes.
Her Honour accepted that this was an unusual and undesirable way to deal with the funds but she concluded from the evidence that $65,000 was in fact passed from Tom and ultimately to the Commission. Her Honour concluded in those circumstances that what occurred was not improper, but even if it was, there was no causal connection between the conduct and the evidence supporting the Crown's case.
The fifth category was the failure to comply with the letter and spirit of the JTF agreement. The trial judge accepted that what occurred was outside the terms of that agreement because control over the drugs was lost and ultimately they were presumably supplied to end users. However, she did not accept that this would amount to an impropriety.
The sixth category was the failure to abide by the Code of Conduct surrounding controlled operations contained in Schedule 1 to the then Law Enforcement (Controlled Operations) Regulation 1998. Her Honour concluded that this submission was largely otiose having regard to the invalidity of the controlled operations authorities. However, she noted that the complaint was that Mr Standen in particular, but also Mr Bradley and the other officers, did not act in good faith in applying for and granting the controlled operations authorities. She said this was relevant to determine whether the illegalities were deliberate or reckless but she did not accept that of itself it constituted an impropriety.
The seventh category of alleged impropriety was that Mr Bradley had made his decision to issue the authorities prior to 8 February 2005, at the time of a meeting with the Commissioner of Police on 2 February 2005, or that the decision was in fact made by the Commissioner of Police. The trial judge rejected this argument on the evidence, stating that it was appropriate to plan for the operation. She said the evidence established that any agreement reached on 2 February was always contingent on Tom and his information being reliable. She also said that there was no evidence that Mr Bradley made any final decision to grant an authority prior to 8 February, accepting the evidence of Mr Bradley on this issue.
The trial judge then dealt with the question of the exercise of discretion contained in s 138 of the Evidence Act, recognising the onus was on the Crown to show that the desirability of admitting the evidence outweighed the undesirability of admitting evidence so obtained taking into account at least the factors in s 138(3). She accepted for the purpose of s 138(3)(a) that the evidence was highly probative and for the purpose of s 138(3)(b) very important. She also accepted for the purpose of s 138(3)(c) that the offences for which the appellant was charged were very serious.
The trial judge also accepted that for the purpose of s 138(3)(d) of the Evidence Act the contraventions by the authorities were serious. She said, however, they were less serious than the appellant's contraventions as they did not occur as part of an organised criminal activity but instead were part of a law enforcement effort. She concluded that in considering the gravity of the contraventions, it was appropriate to consider the motivation and beliefs of those involved in the conduct. She said the evidence that the officers in question believed they were acting in accordance with validly issued controlled operations authorities was overwhelming.
The trial judge then dealt with the question raised by s 138(3)(e), namely, whether the contraventions were deliberate or reckless. She concluded that the officers concerned did not intend to breach the law, nor were they reckless.
So far as the officers involved in the actual drug handling and transfers were concerned, she said there was no evidence that they were acting otherwise than in good faith and in the belief that they were participating in authorised controlled operations. She recorded the same conclusion in relation to Tom.
In dealing with Mr Standen her Honour noted that he had been arrested in June 2008 and charged with three serious offences. She accepted the material before her tended to throw doubt on his conduct between June 2006 and June 2008, accepting what was said by the Crown Prosecutor that there seemed to have been "a progression in the relationship from unfortunate to criminal in the continuum of his conduct with the people involved". She rejected the proposition that the evidence including the charge of conspiracy to pervert the course of justice brought against Mr Standen had any relevance other than on the question of credibility.
The trial judge rejected the submission that Mr Standen and Mr Bradley did not act in good faith because they knew that the operation was not able to be authorised. She rejected the proposition they did not genuinely believe that s 7(1)(b) of the Controlled Operations Act only required, in terms of assessing harm to others, that persons in the immediate vicinity of the operation need only be considered. Her Honour also rejected the submission that a failure to obtain legal advice was reckless.
The trial judge also rejected the submission that there was a deliberate attempt to sideline or exclude the AFP from the operation because Mr Standen and Mr Bradley knew that the AFP would not participate in an operation involving the release of drugs into the community. Her Honour rejected the proposition that Mr Bradley had deliberately engineered the exclusion of the AFP from a meeting on 2 February 2005 when the operation was discussed. She stated that what occurred after 8 February 2005 was inconsistent with an intention by Mr Bradley to sideline those officers in the belief they would take action to bring the operation to an end. She pointed out that when the AFP became aware of the operations they did not withdraw except in a formal way by ensuring that AFP officers could not be designated as law enforcement participants.
The third component of the allegation of the absence of good faith was a submission that Mr Bradley only paid lip service to the requirements of the Controlled Operations Act. The trial judge rejected that argument on the same basis she rejected the argument that the manner the authorities were issued involved an impropriety.
The fourth allegation of bad faith was that Mr Standen, with the support of Mr Bradley, was driven to achieve an outcome regardless of rules, policies, guidelines and the law. Her Honour rejected this argument. She said that Mr Standen did not approach the operation knowing it breached the law or being recklessly indifferent to that fact. She said the fact that Mr Standen said he was "results driven" and viewed the release of seven kilograms of cocaine into the community as morally justified, did not exhibit recklessness as to his legal obligations.
Her Honour rejected the argument that bad faith was exhibited by the fact that reports made by Mr Bradley to the Ombudsman did not disclose that the drugs had been released to the community. She said the reports were in accordance with what was required by the reporting provisions.
So far as Mr Standen's credibility was concerned, the trial judge pointed out that his evidence was supported in all relevant senses by other evidence, particularly by the evidence of Mr Bradley.
In these circumstances the trial judge concluded that the contraventions of the law and the improprieties were not deliberate or reckless.
So far as s 138(3)(g) of the Evidence Act was concerned, her Honour accepted "there has been the myriad civil proceedings" culminating in the High Court's decision and also minor disciplinary proceedings against the AFP officers, Mansfield and Nelson. She said it was unlikely proceedings would be brought against Mr Bradley and Mr Standen.
So far as s 138(3)(h) was concerned, her Honour accepted that it would have been difficult, if not impossible, to obtain the evidence without the illegalities if the overall aim of the JFT was to apprehend all those involved.
Her Honour also took into account that the case did not involve the police inducing the criminal behaviour. She pointed to the fact that the appellant was a willing participant.
Her Honour's conclusion was in the following terms:
"70. In the end a decision must be made, if this evidence is to be admitted, that the desirability of admitting the evidence outweighs the undesirability of doing so. This involves a balancing act. It is a relatively unpalatable situation that law enforcement agencies themselves become drug suppliers. There are few circumstances where that could be condoned. Whilst there was a risk that some end users of this cocaine may suffer adverse health consequences as a result of its distribution into the community, the evidence is that it was to be released through a pre-existing network of drug suppliers to a pre-existing clientele of drug users, and as such it seems to me the risk of such harm was not high. The High Court, of course, found that it was a foreseeable risk, which prevented the decision-maker from issuing the Controlled Operation Authorities but in terms of exercising the discretion I accept that the overall risk was outweighed by the desirability of bringing to an end this much wider drug importation and distribution network, involving the importation and supply of far greater quantities of cocaine in the past and about to be imported, and with a far wider network of criminality and corruption."
The legislative framework
In considering the issues that are raised under these grounds it is important to have regard to the relevant statutory framework in which they arise. I have set out the relevant provisions of the Drug Act and the Customs Act above at pars [22] and [29]. The relevant provisions relating to the controlled operations authorities are ss 6 and 7 of the Controlled Operations Act and s 15M of the Crimes Act (Cth). As they stood at the time they respectively provided as follows:
"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.
(2) An authority to conduct a controlled operation on behalf of a law enforcement agency may not be granted unless a code of conduct is prescribed by the regulations in relation to that agency.
(3) An authority to conduct a controlled operation may not be granted unless the chief executive officer is satisfied as to the following matters:
(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.
(10) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant:
(a) did an act the doing of which is a fact in issue, or
(b) had a state of mind the existence of which is a fact in issue.
(11) A reference in this section to doing an act includes a reference to failing to act."
The submissions of the parties
(a) The appellant's submissions
The appellant submitted the trial judge was in error in concluding that the evidence the subject of the proposed cross-examination may have tended to prove that Mr Standen had committed an offence against or under the law of a foreign country. He relied in particular on what was said by Lindenmayer J in Marriage of Atkinson (1997) 136 FLR 347 at 376-377, that the witness must specify the particular law or at least the class of laws under which such an offence arises.
The appellant submitted that no such attempt was made as there was no identification of any particular foreign provision upon which Mr Standen relied. The appellant accepted that Mr Standen did not have to prove that it would be likely that he would be convicted of a particular foreign offence, but submitted he had to demonstrate there was a possible offence with which he could have been charged, proving this matter either by expert evidence or use of provisions such as ss 174 and 175 of the Evidence Act.
The appellant pointed out that mere accession to a convention does not mean that its contents have been incorporated into domestic law. He also submitted that the Convention did not require signatories to criminalise conduct across borders or require the exercise of jurisdiction when the conduct is alleged to have occurred abroad, where the ultimate supply took place abroad and the appellant was not present in the jurisdiction.
So far as the printout from the Ministry of Justice website was concerned, the appellant submitted that it was not admissible and did not demonstrate that the conduct of Mr Standen constituted a breach of Dutch law. He also submitted that the presumption that, absent evidence, foreign law would be taken to be the same as the domestic law, was difficult to apply in the case of civil law countries.
On this basis the appellant submitted the trial judge erred in concluding that the evidence which may have been given by Mr Standen may have tended to prove he committed an offence under the law of a foreign country.
The appellant also contended the trial judge erred in not concluding that the interests of justice required the evidence be given. He submitted that the legislature had abrogated the right against self-incrimination and had struck a fresh balance which was required to be implemented by the courts. He submitted by taking into account the importance of the privilege in determining where the interests of justice lay, the trial judge had robbed s 128 of its purpose and power. In particular, the appellant submitted that the trial judge erred in concluding that derivative use could be made of the material having regard to the provisions of s 128(7) of the Evidence Act.
The appellant submitted the interests of justice required the evidence be given as the credit of Mr Standen was a central plank in the argument that the evidence the subject of the voir dire should not have been admitted.
At the hearing, senior counsel for the appellant conceded that r 4 of the Criminal Appeal Rules applied having regard to the failure to take objection to the evidence. He submitted, however, that even if there was material which suggested the existence of a foreign offence, the cross-examination could have been tailored to deal with this problem. However, as I indicated, senior counsel for the appellant also conceded that it was not contended at the trial that Mr Standen would not be liable to prosecution under foreign law in respect of the matters the subject of the proposed cross-examination.
Senior counsel for the appellant also submitted that regardless of the admission of the evidence it was not capable of establishing a foreign offence, although as I have indicated that was not in issue on the voir dire. He also acknowledged that there was no suggestion that Mr Standen was involved in the importation of drugs the subject of the present proceedings and the most that could be put to him was he would do anything to achieve the appropriate outcome regardless of the legal position and also that he did not care if the drugs were harmful. He subsequently stated it would show the general attitude of Mr Standen to compliance with the law.
So far as the question of an adjournment was concerned, the appellant submitted that any detriment to Mr Standen could have been cured by an adjournment. He submitted that absent the cross-examination, the trial judge could not properly determine the credibility of Mr Standen and there was every reason to conclude that the appellant would have been better off if the trial had been adjourned.
In supplementary submissions filed after the conviction of Mr Standen the appellant pointed to evidence which was only relevant to the credibility of Mr Standen would have been admissible in the present case. The appellant submitted that this evidence would indicate that Mr Standen had been disbelieved by a jury and that he had been convicted of drug and perversion of justice offences.
(b) The Crown's submissions
The Crown emphasised the conclusion of the trial judge that the evidence suggestive of criminal behaviour by Mr Standen was not of great significance in the matter for determination on the voir dire and that the source material on which the cross-examination would be based was in fact tendered.
The Crown submitted there were no authorities supporting the proposition of Lindenmayer J in the Marriage of Atkinson supra, that it was necessary to specify the law or class of law in respect of which the evidence might tend to prove a contravention. However, the Crown accepted that there must be some indication of the relevant threat of self incrimination. The Crown submitted that all that was required was that there were reasonable grounds for a finding that the evidence may tend to prove that a person had committed a particular offence.
The Crown referred to the statement of Heydon JA (as his Honour then was) in Damberg v Damberg (2001) 52 NSWLR 492 at 505 to the effect that it is well established, subject to numerous exceptions, that where foreign law is not proved it will be presumed to be the same as the lex fori. He submitted the failure of the appellant to object to the material tendered entitled the judge to proceed on the basis that there was no complaint about the acceptance of Mr Standen's case that the material constituted reasonable grounds for concluding that the evidence would tend to prove that Mr Standen had committed an offence against a foreign law.
The Crown referred to authority which recognised consistently with the opinion of the trial judge that notwithstanding the provisions of s 128(7), the section offered only limited protection: Ross v Internet Wines Pty Ltd [2004] NSWCA 195; (2004) 60 NSWLR 436; R v Lodhi [2006] NSWSC 638; (2006) 199 FLR 328.
Senior counsel for the Crown contended at the hearing that the summary of facts tendered on the voir dire related to overseas matters on which the trial judge could rely in concluding that Mr Standen was at risk of being charged with offences overseas.
In considering the importance of the evidence senior counsel for the Crown emphasised that to a very large extent the evidence of Mr Standen was corroborated by that of Mr Bradley.
Senior counsel for the Crown submitted that had the adequacy of the evidentiary material been raised, it would have been open to Mr Standen to obtain evidence of the relevant foreign law. However, having regard to the way that the case was conducted by the appellant it was unnecessary for him to do so.
So far as Ground 7 was concerned, the Crown submitted that the decision to grant or refuse an adjournment was discretionary. The Crown submitted that having regard to the material which went into evidence it would be impossible to conclude that the appellant would have been in a better position if the cross-examination had taken place. The Crown pointed to the fact that there was ample material affecting the credibility of Mr Standen before the trial judge.
The Crown also pointed to the fact that in assessing the probative value of the evidence, regard would need to be had to the difficulty in assessing dishonesty at a particular point of time from events which occurred subsequent to that time: R v Robinson [1999] NSWCCA 186 at [48]-[49].
As with Ground 6 the Crown emphasised that the evidence of Mr Standen was by and large corroborated by that of Mr Bradley.
Consideration
Ground 6
It is convenient first to deal with the question of whether the trial judge erred in determining that the interests of justice did not require the evidence to be given.
A number of matters should be noted at the outset. First, the onus was on the appellant to establish that the interests of justice required the evidence to be given. That, in my opinion, is the effect of s 142 of the Evidence Act: see S Odgers, Uniform Evidence Law, 10th ed (2012) at [1.3.13060].
Second, the requisite standard provided for in s 128(4)(b) of the Evidence Act is that the interests of justice require admission of the evidence. It is not enough that the evidence be relevant and in this case satisfy the exception to the credibility rule in s 103 of the Evidence Act. This relatively high standard of satisfaction is consistent with the fact that the legislation to a significant extent abrogates a basic common law right.
Third, as a corollary to the second proposition, the trial judge who has the conduct of the trial is in a considerable position of advantage in dealing with whether the interests of justice require the admission of the evidence. That does not mean a decision is incapable of appellate review, but in considering whether to review a decision, regard must be had to the position of the trial judge who is familiar with the nuances of the trial.
Fourth, it was not contended in this case that s 128 as a matter of construction precluded cross-examination of a witness in respect of pending charges. Thus the issues of construction which divided the members of the High Court in X7 v Australian Crime Commission [2013] HCA 29; (2013) 87 ALJR 858 and Lee v New South Wales Crime Commission [2013] HCA 39 do not arise in the present case.
The application to cross-examine on the material the subject of the charges was made at the conclusion of a lengthy cross-examination of Mr Standen in which a significant attack on his credibility was mounted: see par [232] above. It could not be said in those circumstances that her Honour was in error in concluding that an additional attack on Mr Standen's credit based on material which was in fact before her would not be of real significance such as to require the answers to be given in the interests of justice.
As the trial judge pointed out in dealing with Mr Standen's credibility, she had the facts and a deal of evidentiary material relating to the charges before her as well as a record of interview in which Mr Standen attempted to explain the material put against him. Her Honour was entitled to doubt whether in these circumstances additional cross-examination would significantly alter the position.
Further, it must be remembered that the proposed cross-examination was not designed to demonstrate the involvement of Mr Standen in the offences the subject of the charges brought against the appellant; the most it could go to was to support the proposition that Mr Standen would do everything to achieve what he regarded as the appropriate outcome regardless of the legal position, his lack of concern as to whether the drugs were harmful and the general attitude of Mr Standen to compliance with the law. These were matters on which there had already been substantial cross-examination.
Nor do I think that the trial judge erred in taking into account the position of Mr Standen. In my opinion, the trial judge did not misconstrue s 128(7) and conclude that it did not provide protection against derivative use. She was simply noting the proposition accepted in other cases that the provision of derivative use immunity does not provide complete protection: R v Lodhi supra at [55]; Ross v Internet Wines Pty Ltd supra at [99].
In the present case the appellant sought leave generally to cross-examine Mr Standen in respect of the charges brought against him. The effect of such cross-examination, even with derivative use immunity, was summarised by Hayne and Bell JJ, with whom Kiefel J agreed, in their joint judgment in X7 supra in the following terms:
"[124] Even if the answers given at a compulsory examination are kept secret, and therefore cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers, after being charged, would fundamentally alter the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial (and adversarial) trial in the courtroom. No longer could the accused person decide the course which he or she should adopt at trial, in answer to the charge, according only to the strength of the prosecution's case as revealed by the material provided by the prosecution before trial, or to the strength of the evidence led by the prosecution at the trial. The accused person would have to decide the course to be followed in light of that material and in light of any self-incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid. That is, the accused person would have to decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to what answers he or she had given at the examination. The accused person is thus prejudiced in his or her defence of the charge that has been laid by being required to answer questions about the subject matter of the pending charge."
It should be noted that in Lee v New South Wales Crime Commission supra at [54], one member of the majority, French CJ, expressly agreed with these remarks.
It is true that the trial judge may have been able to control the cross-examination to limit any unfairness which may have arisen: Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 at 498-499; Lee v New South Wales Crime Commission supra at [140]. However, the trial judge was entitled to take account of the position of Mr Standen in the manner she did along with the other matters she referred to in determining whether the interests of justice required the evidence to be given.
It follows in my opinion that the trial judge did not err in finding that the interests of justice did not require Mr Standen to give the evidence.
In these circumstances it is strictly unnecessary to deal with the question of whether the trial judge was correct in declining to permit the cross-examination on the basis that it tended to prove Mr Standen committed an offence against the law of a foreign country. Nevertheless it is appropriate that I do so.
I have already pointed to the fact that senior counsel for the appellant acknowledged that no objection was taken to the evidence. In these circumstances r 4 of the Criminal Appeal Rules applies to this ground of appeal so far as it relates to the admission of the evidence said to support the proposition that the cross-examination may tend to prove an offence under foreign law. Having regard to my conclusion that the interests of justice did not require that the evidence be admitted, no miscarriage of justice has been demonstrated. It follows that this ground of appeal would fail to the extent it relied on the wrongful admission of evidence.
However, the appellant submitted that the evidence so admitted did not provide any foundation for the claim that the cross-examination would tend to prove a contravention of foreign law by Mr Standen.
To the extent that the trial judge did not deal with this point, there is really no basis for criticism. As the trial judge pointed out (see par [250] above) and as the appellant concedes, it was not in issue before her. Indeed, no submission whatsoever was made by senior counsel for the appellant at the trial on this issue.
In these circumstances there is a real question as to whether this point should be permitted to be taken or whether the appellant should be bound by the course taken at the trial: see, for example, Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at [9]. At the very least the approach taken by her Honour should be considered in light of this fact.
I have set out the approach taken by the trial judge above at pars [249]-[252]. The approach her Honour effectively adopted was that while she was not prepared to assume there was an offence of conspiracy under Dutch law similar to the common law (see par [251] above), she was prepared to presume that the Dutch law criminalising the importation and export of narcotic substances was similar to Australian law and that Mr Standen as a participant would be liable for breach of that law.
In adopting that approach the trial judge was applying the well-known presumption that absent evidence to the contrary, foreign law is presumed to be the same as the law in this country. As set out above, in Damberg v Damberg supra at [119], Heydon JA, with whom the other members of the Court agreed, described the proposition as well supported. However, he then cited numerous exceptions throughout jurisdictions in the common law world. He stated at [144] by reference to The Parchim (1918) AC 157 that one circumstance where the presumption was applied was when it was assumed to be reasonable to apply English law because it was unlikely to differ greatly from the foreign law. In the result in Damberg, the Court declined to presume that the law of Germany relating to the taxation of capital gains was the same as that of Australia.
The presumption can apply in relation to the law of non-common law countries. In Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331, a question arose as to whether a Chinese court would exercise its discretion under Article 146 of the General Principles of Civil Law of the People's Republic of China in the same way as it would be exercised by a court of this country. Article 146 permitted a Chinese court in a dispute between foreign nationals of the same country to apply the law of that country to resolve the dispute. The majority was prepared to apply the presumption: Gummow and Hayne JJ at [125], Callinan J at [249], Heydon J at [267], although Gleeson CJ who agreed in the outcome and McHugh and Kirby JJ who dissented, were not prepared to do so. Gummow and Hayne JJ explained the presumption in the following terms:
"[125] If there is thought to be some deficiency in the evidence, the 'presumption' that foreign law is the same as the law of the forum comes into play. That would then require an Australian court to approach the task of construing Art 146 as it would approach the construction of an Australian statute. Neither the absence of pleading the relevant content of foreign law nor the absence of proof would be fatal to the case of the party relying on the relevant provision of foreign law. If the presumption was applied it would follow that the relevant power or discretion would be exercised, as it would by an Australian court under an Australian statute, having regard to its scope and the objects for which it was conferred."(Citations omitted)
Whilst Callinan J dealt with the issue as follows:
"[249] In those circumstances, the absence of relevant evidence of the Chinese approach to the construction and application of Art 146, it is right in my opinion to presume that the Chinese principles of statutory construction are the same as the Australian ones and to use the latter. This is consistent with authority in which English law has been applied to resolve questions involving a foreign law in the absence of any, or sufficient evidence of that law, which otherwise is in the usual case, to be pleaded and proved as a fact. In Jabbour v Custodian of Israeli Absentee Property, Pearson J, who was confronted with an unassisted need to construe some Israeli statutes, said this:
'I did not feel entitled or qualified to look through volumes of Palestine or Israeli ordinances or statutes or law reports as they were not in evidence and I would not know which of the ordinances or statutes were still in force or which of the reported decisions were still good law at any material time. It must be assumed that the Israeli rules of construction are the same as the English rules of construction.'"
(Citations omitted)
Heydon J at [267] agreed with each of Gummow and Hayne JJ and Callinan J.
There is also some uncertainty about which party can rely on the presumption. In BP Exploration Co (Libya) Ltd v Hunt [1980] 1 NSWLR 496 at 503, Hunt J stated that the application of the presumption was to operate against, not in favour of, the party whose obligation it was to prove the foreign law. This statement was cited with approval in Nygh'sConflict of Laws in Australia, 8th ed (2010) at [17.41]. By contrast, Dicey, Morris and Collins on the Conflict of Laws, 15th ed (2012) at [9-025] stated the presumption in the following terms:
"The burden of proving foreign law lies on the party who bases his claim or defence on it. If that party adduces no evidence, or insufficient evidence, of the foreign law, the court applies English law. This principle is sometimes expressed in the form that foreign law is presumed to be the same as English law until the contrary is proved."(Citations omitted)
The learned authors, after referring to Damberg v Damberg supra and Neilson supra, state that courts have not yet offered precise guidelines as to when application of the presumption would not be appropriate.
None of these issues were debated before the trial judge. However, having regard to the material tendered and the absence of any submissions to the contrary, she was entitled in my opinion to assume that Australian law was unlikely to differ greatly from foreign law in this area and to apply the presumption. Both the Netherlands and Australia were signatories to the Convention and the material concerning Dutch law that was tendered without objection showed that the import and export of narcotic substances was criminalised in that country.
I do not think that the decision of the Full Court of the Family Court in Marriage of Atkinson supra affects the position. The case was an unusual one. The husband had filed certain evidence in relation to his financial position. He declined to answer questions in cross-examination on the ground it might tend to prove offences committed by him against the law of Vanuatu. The trial judge declined to allow the questions to be put but then proceeded to refuse to permit the husband to tender any evidence concerning his financial affairs. The appeal was allowed. Lindenmayer J at 376-377 concluded that as the evidence did not specify the particular law or class of laws in respect of which an offence might be proved, the husband should not have been permitted to decline to answer the questions and thus the whole of his evidence should have been admitted.
However, the other members of the bench did not adopt the same approach. Baker J at 349 disagreed with Lindenmayer J on the effect of s 128, holding that the judge was correct in finding that the husband was not required to give the evidence. He went on to decide that the trial judge in those circumstances was in error in refusing to permit the husband to lead any evidence as to his financial affairs. The third judge, Smithers J, simply held that irrespective of whether the questions should have been permitted or not, the judge was in error in not permitting the other evidence to be given.
It is unnecessary to decide if Lindenmayer J was correct. This is because, in my opinion, the class of foreign law to which Mr Standen was liable was adequately identified, namely, participation in the importation and export of drugs.
The appellant submitted that cross-examination could have been tailored to avoid any potential exposure to foreign law offences. This was not expressly raised in the grounds of appeal or for that matter in the Court below. To the contrary, senior counsel then appearing for the appellant expressly disclaimed such an approach (T466). In these circumstances, this point should not be permitted to be raised in this appeal.
It follows that Ground 6 has not been made out.
Ground 7
The decision of whether or not to grant an adjournment is discretionary in the sense that it could only be overturned if an error in the sense described in House v The King supra is demonstrated: R v Alexandroaia (1945) 81 A Crim R 286 at 290; R v MAK [2005] NSWCCA 98 at [13].
The only error identified is that the trial judge failed to conclude that the appellant might be in a better position if his trial was adjourned until the conclusion of the trial of Mr Standen: R v Collisson [2003] NSWCCA 212; (2003) 139 A Crim R 389 at [34].
In my opinion there was no error in the exercise of discretion. Having correctly concluded that the interests of justice did not require the evidence to be given on grounds including that it would not be of great significance to her determination on the voir dire, it does not seem to me to be an error of discretion by the trial judge to permit a trial in respect of an alleged offence which had been committed 4½ years previously to continue.
Quite apart from the significance of the evidence, there was no basis to assess if the appellant's prospects would be improved if a continuation of the trial awaited the trial of Mr Standen. Mr Standen may or may not have given evidence at the trial, the evidence may or may not have assisted the appellant and the jury may or may not have found him guilty. Any benefit to the appellant in these circumstances was entirely speculative.
Further, whether Mr Standen was convicted or acquitted of the charges, the problem of potential foreign offences would remain. Mr Standen may well have been entitled to refuse to answer questions on the grounds that they tended to prove offences against foreign law.
It follows that there was no error of discretion in declining to grant the adjournment. This ground of appeal has not been made out.
Ground 8
This ground of appeal was as follows:
"8) The appellant (applicant) has a justifiable sense of grievance in light of the sentence imposed upon the offender, Mr. Pavan, and a different less severe sentence is warranted and ought to have been imposed."
The appellant was sentenced to a total term of 15 years' imprisonment with a non-parole period of 10 years' imprisonment.
Mr Robert Pavan who was involved in the same syndicate pleaded guilty to one count of knowingly taking part in the supply of a large commercial quantity of cocaine, the quantity being 3 kilograms. The charge particularised three separate supply offences. Mr Pavan was sentenced to a total term of 12 years with a non-parole period of 7½ years. His sentence included a discount of 20% for the utilitarian value of his plea.
The remarks on sentence
The trial judge noted that the offences were very serious, stating that they involved substantial quantities of cocaine. Her Honour stated that whilst the quantity of cocaine the subject of each count was significantly above the lower limit necessary to constitute the offence (two times in respect of Count 1 and three times in respect of Count 2), the quantities were not such as to aggravate the objective seriousness of the offences. She accepted the drugs were relatively pure.
The trial judge stated that the appellant played an important role in the syndicate at an intermediate level in the supply chain. She stated that he had a greater organisational role than a mere wholesaler. She accepted, however, that he was not the principal of the syndicate.
Ultimately the trial judge concluded that each of the offences were in the middle range in terms of objective seriousness but towards the bottom of that range.
The trial judge accepted that the appellant made significant concessions and admissions in the conduct of the trial which had significant utilitarian value. She noted that from the outset the appellant conceded that the charge could easily be proved if his challenge to the admissibility of evidence failed. She described the challenge as "not merely speculative or nonsensical".
The trial judge noted that the whole trial was completed in three days which she described as having significant utilitarian value. She stated that if strict proof was required the trial would have taken at least two weeks or considerably longer. She accepted the sentence should be discounted to reflect the utilitarian value that arose because of the conduct of the accused at the trial.
So far as the appellant's subjective circumstances were concerned, the trial judge noted that whilst he could not be called a person of good character, nonetheless in both his life before he committed these offences and more so since, he had demonstrated some significant positive attributes.
She accepted from the history given by the appellant to a Dr Lennings that the appellant commenced using drugs following the death of his sister in 1999, that he overcame that to an extent for a period of time but resumed his association with drugs following a boating accident caused by his negligence in which his fiancé's brother was seriously injured. Her Honour accepted, however, that he committed the offences for monetary gain.
The trial judge accepted that the appellant had ongoing support from his fiancé and his family. She stated in these circumstances that he had demonstrated excellent prospects of rehabilitation.
Her Honour accepted that the principles of parity were relevant and stated that the sentence which bore the greatest similarity in terms of criminality and subjective circumstances was that imposed on Mr Pavan. Her Honour made the following comments:
"His role, as I understand it from the sentence imposed by Judge Berman in this Court, was quite similar to that of this offender, in that he identified purchasers and facilitated the supply of the cocaine sourced from Hatfield. He was present and supervised the supply and he was engaged in it for financial gain. The offence was found to be in the middle of the range in terms of objective seriousness. He was somewhat older than this offender, but equally had a minor criminal record and was a drug user. He was found to have good prospects of rehabilitation and to be unlikely to re-offend.
Judge Berman on those findings declined to impose the standard non-parole period, but as I understand it purely on the ground of the utilitarian value of the plea which he assessed at twenty per cent. That as I calculate it must mean that his Honour used a starting point of about fifteen years for that offence and then discounted it in the circumstances. It seems to me that that is a sentence which is a matter that should be considered when assessing relativity or proportionality in relation to this offender and the appropriate sentence.
It is the case that for Mr Pavan, he was facing sentence for one count only, whereas this offender is before the Court for two counts. In large part that does not play, in my view, a significant difference in comparing the two sentences, given that the facts in relation to Mr Pavan indicate that that three kilos was represented by three separate supply offences of one kilo each on three separate occasions dealt with as a rolled up charge. That could equally have been the case in relation to this offender. Of course it was not. The offender gains no credit or mitigation because of those decisions made by the prosecuting authorities."
In these circumstances her Honour concluded that the appropriate sentence for Count 1 was a non-parole period of nine years with a parole period thereafter of five years, giving rise to an overall period of imprisonment of 14 years and for Count 2 a non-parole period of six years with a parole period of three years, giving rise to an overall period of imprisonment of nine years. Her Honour stated that only a small amount of accumulation was necessary as in large part the two offences represented one episode of criminality, albeit two separate offences. Having regard to the period the appellant had spent in custody the judge directed the sentence for Count 1 should commence on 16 May 2009 and Count 2 on 16 May 2008.
The submissions of the parties
The appellant submitted that the roles played by Mr Pavan and the appellant in the syndicate were identical, both acting as go-betweens between Mr Hatfield and other wholesalers. He submitted that the conduct of Mr Pavan was slightly more serious as the quantity of drugs was slightly greater and Mr Pavan had engaged in three rather than two discrete transactions.
The appellant also submitted the subjective cases were largely identical, both men having only relatively minor prior convictions and good prospects of rehabilitation.
The appellant submitted that the trial did not involve any factual contest about the appellant's conduct. He pointed to the fact that he sought to challenge the s 138 ruling made by the trial judge but that leave was refused. He pointed to the fact that he was obliged to maintain his plea of not guilty to preserve his right of appeal against the s 138 ruling. He submitted that his manner of conducting the trial facilitated the course of justice which should have been afforded considerable weight in the sentencing process.
Counsel for the appellant submitted that although it would have been of little utility, it would still have been open to the appellant to put the Crown to strict proof on all issues. He pointed out that Mr Pavan obtained a discount on sentence even though his plea was not forthcoming at the first opportunity.
The Crown submitted that in sentencing, the trial judge paid particular regard to the sentence imposed on Mr Pavan. It was submitted that her Honour was correct in stating that the appellant gained no credit or mitigation because of decisions made by the prosecuting authorities to impose different charges. The Crown submitted that having taken the sentence of Mr Pavan into account, there was no error in the exercise of her sentencing discretion in imposing a different sentence.
The Crown submitted that the reduction from the standard non-parole period of 15 years to a parole period of 10 years adequately provided for any discount arising out of the saving of time at the trial.
Consideration
It is plain that the trial judge took into account the parity principle and the level of co-operation by the appellant and his representatives in the conduct of the trial. The question is whether these matters were adequately taken into account having regard to the sentence imposed on Mr Pavan.
There are two differences of significance which must be borne in mind. First, Mr Pavan entered a plea of guilty. It is not entirely clear from the judgment of Berman SC DCJ when the plea was entered into but it would appear to have been after the decision in Dowe (No 2). More importantly he did not contest any aspect of the proceedings at least after arraignment.
By contrast the appellant contested the admissibility of the evidence in a voir dire extending over some 18 days and as a result of his plea in a trial occupying three days. He was fully entitled to take that course and as the trial judge said, his co-operation significantly reduced the length and complexity of the trial. That being said the utilitarian value of his conduct was significantly less than that of Mr Pavan.
Further, the appellant unlike Mr Pavan, was sentenced for two offences which the trial judge partly accumulated. It has been held consistently in this Court that the parity principle does not extend to correcting any imbalances in the manner in which offenders were charged: R v Formosa [2005] NSWCCA 363 at [44], [54]; Pham v The Queen [2009] NSWCCA 25; (2009); 193 A Crim R 190 at [36], [37]; Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [117], [247]; JOD v R [2009] NSWCCA 205. The appellant did not suggest these cases were wrongly decided.
In Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, the majority expressed some reservation as to the scope of the principle laid down in these cases. At [30], their Honours made the following comments:
"[30] In Lowe v The Queen and in Postiglione v the Queen, this Court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise. Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen, there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged."(Citations omitted)
However, their Honours did not overrule what was said in those cases. The minority expressly stated that in this regard Jimmy supra was correctly decided: Green supra at [90], [91], [122]. Nonetheless, the Court should be mindful of the remarks of the majority just quoted.
Having regard to the marked difference between the utilitarian value of the plea of guilty entered by Mr Pavan and the assistance provided by the appellant, and further, to the fact that the appellant was convicted of two charges instead of one in the case of Mr Pavan, the appellant was not entitled to have a legitimate sense of grievance in the objective sense referred to in the authorities: see Green supra at [31]. My conclusion would be the same regardless of whether the approach of the majority in Green supra was applied or the matter was approached by the application of the principles in Jimmy supra and the other cases to which I have referred.
It follows that this ground has not been made out.
Conclusion
In the result I would make the following orders:
(1) Appeal against conviction dismissed.
(2) Grant leave to appeal against sentence but dismiss the appeal.
BEAZLEY P: I agree with the reasons and with the orders proposed by Bathurst CJ.
HOEBEN CJ at CL: I agree with Bathurst CJ.
BLANCH J: I agree for the reasons given by the Chief Justice that both the appeal against conviction and the appeal against sentence should be dismissed.
PRICE J: I agree with the judgment of the Chief Justice that both the conviction appeal and the sentence appeal be dismissed.
**********
Decision last updated: 12 November 2013
36
39
15