Jin Wu (a pseudonym)[1] v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0141

JIN WU (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms in place of the name of the applicants.

S APCR 2019 0142

TU PHAN (a pseudonym)	Applicant
v
THE QUEEN	Respondent

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JUDGES:	T FORREST and EMERTON JJA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 April 2020
DATE OF JUDGMENT:	22 April 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 94
JUDGMENT APPEALED FROM:	R v [Phan] (Ruling No 1) (Unreported, County Court of Victoria, 4 June 2019); R v [Phan] (Ruling No 2) (Unreported, County Court of Victoria, 8 July 2019)

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CRIMINAL LAW – Interlocutory appeal – Evidentiary ruling – Conspiracy to import commercial quantity of border controlled drug – Evidence obtained by undercover operatives acting under major controlled operation authorities – Evidence obtained either in contravention of Australian law or as consequence thereof – Whether desirability of admitting evidence outweighed undesirability of admitting evidence – No error by trial judge – Leave to appeal refused – Crimes Act 1914 (Cth) pt 1AB, Evidence Act 2008 s 138.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr P Morrissey SC with Mr G Nikolovski	Melasecca, Kelly & Zayler
For the Respondent	Mr L Crowley QC with Mr D Holding	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

T FORREST JA
EMERTON JA
CROUCHER AJA:

Introduction

The applicants are charged with two counts of conspiracy to import a commercial quantity of a border controlled drug, contrary to ss 11.5(1) and 307(1) of the Criminal Code Act 1995 (Cth) (‘Code’). The evidence supporting these counts was largely obtained by undercover operatives (‘UCOs’), said to be acting under two major controlled operation authorities (‘MCOAs’) granted under pt 1AB of the Crimes Act 1914 (Cth) (‘Crimes Act’).

In pre-trial argument, the applicants contended that this evidence was obtained in contravention of an Australian law, or in consequence of such a contravention, and thus s 138(1) of the Evidence Act 2008 (Vic) (‘Evidence Act’) was engaged. The judge ruled that the evidence was obtained either in contravention of an Australian law or as a consequence thereof,[2] however, the desirability of admitting the evidence outweighed the undesirability of same.[3] Thus her Honour ruled that the evidence obtained by the UCOs may be led in the trial.
[2]R v [Phan] (Ruling No 1) (Unreported, County Court of Victoria, 4 June 2019) (‘Ruling No 1’).
[3]R v [Phan] (Ruling No 2) (Unreported, County Court of Victoria, 8 July 2019) (‘Ruling No 2’). The evidence gathered by the UCOs under the first MCOA was held to be obtained in contravention of an Australian law. The evidence acquired under the second MCOA was held to be obtained as a consequence of such a contravention.

Her Honour certified under s 295(3) of the Evidence Act that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case.

In this application for leave to appeal against an interlocutory decision, both applicants filed the following common grounds:

Ground 1:The Learned Trial Judge erred in exercising her discretion not to exclude the evidence despite the finding of that the evidence was obtained in contravention of an Australian law (or in consequence thereof), on the bases that:

(a) The decision was not reasonably open in the circumstances;
(b) Her Honour had regard to irrelevant considerations; and/or
(c) Her Honour had no regard or insufficient regard to relevant considerations.

Ground 2: The decision was vitiated by a breach of procedural fairness.

Both applicants were represented by common senior and junior counsel. Ground 2 was not pursued in argument and we shall not consider it further.

The issues that pertain to this appeal are identical to both applicants and we shall consider their contentions as one.

The structure of these reasons shall be broadly as follows:

(a) The factual background: We shall provide under this heading a broad overview of the alleged offending. More detailed factual analysis will be developed from time to time as we set out and analyse the parties’ specific contentions.

(b) Summary of the judge’s conclusions in Rulings No 1 and No 2

(c) Legal principles on the application of s 138 of the Evidence Act

(d) Analysis

(e) Conclusion

Background

We have borrowed heavily from the judge’s comprehensive reasons in Ruling No 1, and also from the Prosecution Summary of Opening dated 19 February 2019. None of her Honour’s factual findings set out below in this broad background are disputed in this application.

Trident and Polaris

Trident was a task force set up in Victoria comprising state police, and members of the Australian Federal Police (‘AFP’) and the Australian Border Force. It was set up to target crime on the waterfront.

Polaris was a similar task force set up in New South Wales with similar objects.

On 12 February 2016, the Trident task force received intelligence from a foreign law enforcement agency that a Colombian syndicate was proposing to import cocaine into Melbourne via the ports. Trident were advised that the syndicate had stockpiled about 1,250 kilograms of cocaine.

Detective Sergeant Cole of Trident was contacted by the same foreign agency. The agency requested Cole to take photographs of a shipping container located at the Melbourne port. On 24 February 2016, Cole took the photographs and supplied them to the agency. The agency intended to show the photographs to criminals in South America as proof of access to containers at the Melbourne port.

Assistant Commissioner Ian McCartney of the AFP was purportedly assigned the duties of Deputy Commissioner from 29 February 2016. The applicants contended in pre-trial argument that this purported assignment was invalid, thus invalidating any MCOAs[4] issued under McCartney’s hand. The judge rejected this argument and it is not pressed in this application.
[4]Pursuant to s 15GI of the Crimes Act.

On 2 March 2016, Cole contacted the foreign agency and enquired as to whether Trident would be asked to participate in the investigation into a possible drug importation from Panama to Melbourne.

On the same day, Detective Sergeant Schott of the Polaris task force received a call from the same foreign agency about the same potential importation. Based on information from other investigations, Schott believed that the Jomaa crime family, particularly Koder Jomaa and Abbas Jomaa, were involved in the proposed importation. The Jomaas were the subject of an existing Polaris operation (Operation Astatine) before the foreign agency contacted Schott.

Cole and Schott spoke on 4 March 2016, and arranged a meeting between Trident and Polaris on 9 and 10 March 2016. It was agreed that there would be a joint investigation but that Polaris would take the lead. This was because of the belief that the Jomaa family was involved in the proposed importation.

UCOs ‘Unicorn’ and ‘Wisdom’ were briefed by their handler about Operation Astatine between 18 and 23 March 2016.

The first MCOA

On 22 March 2016, Detective Senior Constable Wilson of Polaris applied for an MCOA to authorise the conduct of the UCOs and to protect them from criminal sanctions in the event that their conduct was otherwise unlawful.

On 23 March 2016, McCartney granted this application for an MCOA (‘the first MCOA’). The first MCOA listed Koder Jomaa, Abbas Jomaa ‘[a]nd a person or persons as yet unknown who have been responsible for or will be involved in the illegal activity the subject of this authority’ as the targets of the investigation. The illegal activity was described as the importation and conspiracy to import a commercial quantity of a border controlled drug under s 307.1 of the Code, by virtue of s 11.5 of the Code. The controlled conduct included ‘meetings, discussions, negotiations, arrangements or agreements with [the targets] and/or their associates regarding the importation, trafficking, purchase, sale, manufacture and/or possession of border controlled drugs’.

Unicorn received a call from a Jomaa family representative on 28 March 2016. They arranged to meet on 29 March 2016 in Melbourne. The purpose was so that an encrypted BlackBerry mobile phone could be given to Unicorn by the Jomaa representative. The representative, without explanation, failed to attend the prearranged meeting on 29 March. This was the last positive contact concerning this investigation between the Jomaa family, and either of Polaris or Trident.

On 2 April 2016, the foreign agency advised Polaris that the Colombian syndicate had expressed interest in importing 100 kilograms of cocaine through the Melbourne ‘gate’[5] and an address was needed for the syndicate to send an encrypted BlackBerry to Melbourne.
[5]The Melbourne ‘gate’ was the term used to describe the corrupt means by which the UCOs asserted they could facilitate the undetected transmission of drugs through the Melbourne port. It was also on occasions called the Melbourne ‘door’.

On 7 April 2016, the agency advised Polaris that a person in Colombia known as ‘Goldmining’ had instructed that an encrypted BlackBerry had been sent to Australia.

On 11 April 2016, the BlackBerry arrived in Melbourne and was collected by Cole. It was subsequently provided to Unicorn.

On 15 April 2016, BlackBerry messages commenced between ‘Ghost’ and Unicorn. The identity of Ghost was unknown at this stage. Cole and Schott were informed of the exchanges as they occurred. As at mid-April, Schott believed that the Jomaa family were using a Vietnamese group (of which Ghost was a member) as a cover to communicate with the UCOs. The UCOs were holding themselves out as controlling the Melbourne gate.

Ghost advised that he would send an associate to Melbourne to inspect the gate. On 22 April 2016, Stephen Truong arrived in Melbourne and was shown around the port. Ghost’s identity remained unknown.

Between 20 and 24 April 2016, a document styled ‘Investigating Strategy — Operation Astatine’ was created by Polaris.[6] That document lists Koder Jomaa and Abbas Jomaa as the primary targets. Schott confirmed in evidence that he believed at this stage that the Jomaa family were involved. Her Honour accepted his evidence.
[6]It became Exhibit 15 at the pre-trial hearing.

Unicorn and Ghost arranged to meet in Bangkok on 30 April 2016. Before this meeting occurred, Schott received intelligence that the person using the BlackBerry alias ‘Ghost’ may be one of the applicants, Tu Phan. He was also told that Truong was an associate of Phan, and Phan was known to Canadian authorities. Schott requested from those authorities Phan’s photograph and passport information.

In Bangkok on 30 April 2016, Unicorn and Wisdom met with Ghost. It was confirmed that Ghost was the applicant Phan. By the final meeting on 2 May 2016 in Bangkok between Ghost and the UCOs, Schott’s belief as to whether the Jomaas were still involved had weakened to a ‘slight belief’.

On 2 May 2016, Schott spoke to his superior officer and explained that Trident should take over the operation, and Trident could inform Polaris should the Jomaas reappear.

In the first week of May 2016, Schott spoke to Cole and advised him that he no longer believed that the Jomaas were involved in the planned importation, and that Trident should obtain their own MCOA using their own principal law enforcement officer (‘PLEO’) to enable Trident to continue the investigation.

The investigation was handed from Polaris to Trident on 11 May 2016. On 12 May 2016, a background briefing within Trident occurred and on 16 May 2016, the AFP’s operations committee approved the takeover by Trident.

The second MCOA

An application for a second MCOA was prepared by 20 May 2016. The application was approved by McCartney on 23 May 2016 (‘the second MCOA’). The second MCOA listed the applicant Phan and four associates, as well as ‘a person or persons as yet unknown who have been responsible for or will be involved in the illegal activity the subject of this authority’ as the targets of the investigation. The illegal activity was described as the importation and conspiracy to import a commercial quantity of a border controlled drug under s 307.1 of the Code, by virtue of s 11.5 of the Code. The controlled conduct included ‘meetings, discussions, negotiations and arrangements with the targets and/or their associates in relation to the importation, trafficking and/or purchase of border controlled drugs’. The first MCOA continued to be in force and authorised a differently directed Jomaa investigation.

The information derived from the first MCOA underpinned the second MCOA. Count 1 is based on the information derived from the first MCOA; count 2 is based on the information derived from the second MCOA. It is unnecessary at this stage to set out further factual detail of events after the second MCOA was generated. It is sufficient to say that the prosecution will allege at trial that the applicants and others, from about August 2016, agreed to use the Melbourne gate to import 100 kilograms of cocaine. On 26 June 2017, packages containing 91.72 kilograms of pure cocaine were seized from the Spirit of Shanghai and an inert substance was substituted. All participants in the elaborate exchange, including the applicants, were arrested at three Melbourne locations on 29 June 2017.

Controlled operations and major controlled operations

Part 1AB of the Crimes Act governs the conduct of controlled operations. The main objects of the part are:

(a)to provide for the authorisation, conduct and monitoring of controlled operations; and

(b) to exempt from criminal liability, and to indemnify from civil liability;
… [a range of persons, including law enforcement officers].[7]

[7]Crimes Act s 15G.

A controlled operation and a major controlled operation are defined in ss 15GD(1) and (2) of the Crimes Act. Relevantly, a controlled operation is an operation that:

(a) involves the participation of law enforcement officers; and

(b)is carried out for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious Commonwealth offence or a serious State offence that has a federal aspect; and
(c)may involve a law enforcement officer or other person in conduct that would, apart from section 15HA, constitute a Commonwealth offence or an offence against a law of a State or Territory.[8]

[8]Ibid s 15DG(1). Section 15HA provides protection from criminal responsibility in controlled operations and major controlled operations.

A major controlled operation is a controlled operation which is likely to:

(a)involve the infiltration of an organised criminal group by one or more undercover law enforcement officers for a period of more than 7 days; or

(b) continue for more than 3 months; or
(c)be directed against suspected criminal activity that includes a threat to human life.[9]

[9]Ibid s 15DG(2).

In Ruling No 1, the judge found that the evidence from the first MCOA was derived from conduct carried out beyond the scope of that authority and thus illegally. This finding is not in dispute in this application. What is in dispute, however, is the quality of the impugned conduct, which bears upon any assessment of the factors under s 138 of the Evidence Act.

An operation becomes a controlled or major controlled operation through the making of an application under s 15GH(4)(a) of the Crimes Act to an appropriate authorising officer. That officer must not grant an authority unless the officer is satisfied on reasonable grounds of a number of stringent preconditions, including that ‘a serious Commonwealth offence or a serious State offence that has a federal aspect has been, is being or is likely to be committed’.[10]
[10]Ibid s 15GI(2)(a)(i).

The first application for an MCOA was filed on 22 March 2016 and addressed to McCartney, who, for the purposes of this application, is accepted to be an authorising officer within the meaning of s 15GF of the Crimes Act.[11] Under the heading ‘Background’ on the MCOA application, the targets of the proposed operation are said to be Koder Jomaa and Abbas Jomaa, together with ‘a person or persons as yet unknown who have been involved in the illegal activity that is the subject of this authority’. The illegal activity is described as the importation and conspiracy to import a commercial quantity of a border controlled drug under s 307.1 of the Code, by virtue of s 11.5 of the Code.
[11]In pre-trial argument, the applicants contended that McCartney was not an authorising officer within the meaning of s 15GF. Her Honour found that he was and the applicants do not seek to disturb that finding in this application.

On 23 March 2016, McCartney gave formal authority for a major controlled operation. It is clear from its terms that the objects of the authority were the Jomaa brothers and ‘a person or persons as yet unknown who have been, or will be responsible for, the illegal activity the subject of this authority’. The controlled conduct was said to concern meetings, discussions, negotiations, arrangements or agreement with Abbas Jomaa, Koder Jomaa ‘and/or their associates’. The activities controlled were to include the ‘importation, trafficking, purchase, sale, manufacture and/or possession’ of border controlled drugs.

All controlled activities carried out after 23 March 2016 until 23 May 2016, and described in summary form in these reasons from paragraphs 9 to 31, were said by the prosecution in pre-trial argument to be within the scope of the first MCOA. In the event the judge found, inter alia, that whilst the first MCOA was lawfully and validly granted,[12] as a matter of objective fact, the Jomaa brothers were not involved in the authorised investigation from a certain date, and thus the activities of the UCOs and their superiors were unlawful thereafter.

The judge’s conclusions

[12]See Ruling No 1.

Ruling No 1

The judge correctly observed that s 138 of the Evidence Act involved a two-stage process. The onus was on the applicants to establish that the evidence was obtained improperly or unlawfully, as required by ss 138(1)(a) and (b). If this were established, then it was for the respondent to persuade the judge that the desirability of admitting the evidence outweighed the undesirability of admitting the evidence.

Her Honour considered the three broad strands of the applicants’ submissions. She concluded:

(f) The authorising officer was empowered to grant the first MCOA and there were reasonable grounds for granting the MCOA. As we have observed, these conclusions are not disputed in this application.

(g) From at least 2 April 2016, the UCOs’ activities were beyond the scope of the first MCOA and, given the unlawful nature of those activities, the evidence obtained from them was either obtained improperly or in contravention of an Australian law. Although this ultimate conclusion is not disputed in this application, the subjective quality or nature of the impropriety or unlawfulness is impugned and we shall examine it later in these reasons.

(h) The evidence obtained under the second MCOA was obtained in consequence of a contravention of an Australian law. For approximately five weeks from 15 April to 23 May 2016, the UCOs were actively conspiring with the applicants to import cocaine into Australia. This conduct was unlawful because it was beyond the scope of the first MCOA. The second MCOA was granted on the basis of those five weeks of unlawful conduct. The evidence was thus obtained as a consequence of a contravention of Australian law. The judge’s reasoning path concerning the second MCOA is not disputed in this application.

Ruling No 2

The judge concluded in this ruling that the desirability of admitting the evidence outweighed the undesirability of admitting the evidence.

Her Honour correctly observed that, given the outcome of Ruling No 1, the burden shifted to the prosecution to establish that the desirability of admitting the evidence outweighed the undesirability of admitting it.

We have summarised below the findings of fact and law which were made by the judge concerning the MCOAs.

Sections 138(3)(a)–(b): The probative value of the evidence and the importance of the evidence in the proceeding

The probative value of the evidence is high.[13]
[13]Evidence Act s 138(3)(a).

The impugned evidence is vitally important in the proceeding. It is essentially the entire Crown case.[14]

Section 138(3)(c): The nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding

[14]Ibid s 138(3)(b).

The charges are amongst the most serious on the criminal calendar. Her Honour recited and rejected the following arguments by the defence concerning the impact of the ‘nature of the relevant offence’:

(i) More serious charges requiring a more rigorous insistence on compliance with statutory provisions dealing with the obtaining of evidence. The judge observed that the preponderance of authority is that the more serious the crime, the greater the public interest in the conviction and punishment of the guilty parties.[15]
[15]R v Dalley (2002) 132 A Crim R 169, 172 [7] (Spigelman CJ) (‘Dalley’).

(j) Where the relevant unlawfulness is a breach of pt 1AB of the Crimes Act, the seriousness of the offence cannot be evaluated without considering the corresponding seriousness of the breach of pt 1AB. Her Honour concluded that the relative seriousness of the criminality in this case was not diminished in the face of the pt 1AB breach.

(k) The nature of the offence is such that the alleged offending ultimately did not result in harm to any person and thus its seriousness is less than, for instance, a murder. The judge was unimpressed by this submission, and concluded that a large-scale drug importation, if not detected and stopped, does great harm to society.

(l) The crime would not have occurred if police had not set up the Melbourne gate. The judge concluded that the fact that police, together with a foreign law enforcement agency, set up the gate did not diminish the seriousness of the offending. When the applicants learned of the existence of the gate, they enthusiastically sought to use it. There was no suggestion of entrapment or inducement.

We consider the applicants’ contentions and the judge’s reasoning further from paragraph 78 of these reasons.

Section 138(3)(d): The gravity of the impropriety or contravention

As to the gravity of the contravention, the judge held that it was unarguable that the actions of the UCOs and their superiors involved a serious breach of the law. The judge considered their subjective beliefs under s 138(3)(e), however, and concluded that the fact that the UCOs may have had a ‘mistaken but honest and reasonable belief’ in an exculpatory state of facts[16] did not diminish the gravity of their conduct under s 138(3)(d).
[16]Pursuant to s 313.3 of the Code.

The actions of the UCOs could easily have been covered by an appropriately worded MCOA. The judge considered this to be relevant to ameliorate the gravity of the contravention. The judge concluded, however, that the fact that the first MCOA was based on genuine intelligence did not diminish the gravity of the contravention.

Section 138(3)(e): Whether the impropriety or contravention was deliberate or reckless

Her Honour observed that the word ‘reckless’ as used in s 138(3)(e) of the Evidence Act must involve some advertence to the breach of the obligation, and a conscious decision to proceed or ‘a ”don’t care” attitude’[17] to proceed regardless of that possibility. Even if a ‘don’t care’ attitude existed without advertence to the possibility of breach, in the current circumstances, it would still constitute a serious breach given the overall gravity of law enforcement officers engaging in serious illegality.
[17]Ruling No 2, [8], citing Gedeon v the Queen (2013) 237 A Crim R 326, 366 [210] (Bathurst CJ) (‘Gedeon’).

The judge found that the impropriety or contravention was not deliberate, reckless or wilfully blind between 2 April 2016 and the Bangkok meeting on 30 April 2016.[18] The judge, who found Schott (the PLEO) a straightforward and truthful witness, accepted his evidence that after 2 April, he considered the possibility that the Jomaas may not be involved but he retained a genuine belief that they were involved. Between 2 April and 30 April 2016, the judge found that this belief was not ‘unrealistic, exaggerated or blinkered’.[19]
[18]Evidence Act s 138(3)(e).
[19]Ruling No 2, [63].

The judge accepted Schott’s evidence that, if after April 2016, he had concluded the Jomaas were not involved, he would ‘have just gone and got another controlled operation on the new grounds’.[20] He had done this in the past.
[20]Ibid [73].

A good deal of documentary evidence between 4 April 2016 and 30 April 2016 was cited by the judge in support of Schott’s conclusion that the Jomaas were still part of the conspiracy, including:[21]
[21]Ibid [75]–[94].

·An email on 4 April from Troy Thompson, Acting Commander of Trident who, according to Schott, did not play a role in the investigation.
·BlackBerry messages between Ghost and Unicorn. Ghost’s early messages create the impression that there are many people involved in the deal, and that Ghost himself already knows details of the deal. As the messages progress, there are multiple references by Ghost to his partners, including financial investors.
·A diary note by Schott on 17 April, which came about as a result of a telephone conference with various persons, including the foreign law enforcement agency. In that note, Schott records, ‘Jomaa group. Stumped up by the Viet group.’
·An email on 18 April concerning the Jomaas, which had been forwarded to Schott, amongst others.
·A situation report on 19 April by Schott, in which he states that the Vancouver syndicate owns 15 kilograms of the importation with another syndicate, believed to be Koder Jomaa’s syndicate, owning the remaining 85 kilograms.
·A further email from Schott dated 22 April which repeats his view of who owns the 100 kilograms of cocaine.

After the Bangkok meetings, in the period between 2 to 23 May 2016, her Honour found that no police officer could reasonably have maintained the view that the Jomaas were still involved in the proposed importation. The preponderance of evidence known to the investigators confirmed they were dealing with a different syndicate.

The judge concluded that after 2 May 2016, Schott seemed to have the view that if the Jomaas were not involved, then a new MCOA was needed. He should have taken immediate steps to address this, and not just handed the investigation over to Trident.

Cole, a Trident investigator, stated that he believed the conduct of the UCOs was still covered by the first MCOA. The judge considered that this was an assumption, as opposed to a considered belief.

After Bangkok, Schott basically handed the whole matter over to Trident, despite being the PLEO of Polaris.

Her Honour made the following findings about the second MCOA:

(m) The second application for an MCOA was not intended to create the false impression that the Jomaas were still involved (as alleged by the applicants).

(n) There was no great risk in obtaining a second MCOA. Had the police perceived a genuine problem with the first MCOA, it is likely they would have acted more promptly.

Her Honour summarised her conclusions under s 138(3)(e) as follows:

(o) The police honestly and reasonably believed up until the Bangkok meetings that the Jomaas ‘either were or may be involved in the proposed importation’[22] and that the first MCOA covered the conduct of the UCOs. The contravention did not involve ‘any knowledge or realisation that the conduct was illegal, and thus falls towards the less serious end of the spectrum’.[23]

(p) The contravention, up until the Bangkok meetings, was not ‘deliberate, reckless, extraordinarily negligent or egregious in the face of the evidence’.[24]

[22]Ibid [109].

[23]Ibid.

[24]Ibid.

After the Bangkok meetings, her Honour found that Schott’s conduct approached negligence. He was the PLEO and effectively abandoned his role without ensuring a new PLEO was appointed. Those above him should also have actively monitored and overseen what was occurring under the first MCOA.

The judge concluded that police derived no real unfair advantage by applying for the second MCOA on 20 May 2016, rather than immediately after the Bangkok meetings. There was sufficient relevant information to hand to have applied for one immediately after Bangkok. No criticism is made of the police conduct after the second MCOA was obtained. That was because police were working within its terms.

Sections 138(3)(f)–(g): Whether the impropriety or contravention was inconsistent with a civil and political right of a person recognised by treaty and whether any other proceeding has been taken in relation to the impropriety or contravention

Subsection (3)(f) was considered by the judge to be irrelevant, while

sub-s (3)(g) was considered to have very little relevance.

Section 138(3)(h): The difficulty of obtaining the evidence without impropriety or contravention of an Australian law

The judge concluded that it would not have been difficult to obtain the evidence, provided the first MCOA had been carefully drafted and properly monitored. The judge did not consider that this weighed in favour of exclusion because investigators genuinely believed, if mistakenly, that they were acting within its scope. Her Honour rejected the applicants’ suggestion that after 30 April 2016, the investigators should have remained talking to the applicants without actually engaging in the controlled conduct. Her Honour concluded that this was unworkable and contrary to common sense. This is a factor that weighs in favour of admitting evidence gathered under the second MCOA which, had it been granted just after the Bangkok meetings, would have been drafted in the same terms.

The judge then considered the applicants’ submission that the intention of the legislation was to create a restrictive regime that ought be rigorously enforced. Her Honour agreed that pt 1AB of the Crimes Act created a comprehensive regime which permitted certain persons to commit criminal offences without legal liability and that that regime must be taken seriously by those implementing it.

Her Honour concluded that the police misconduct, whilst not deliberate or reckless, was still significant. The judge said that ‘carelessness and negligence are still serious’,[25] and can lead to exclusion of evidence. She noted that the conduct of police up until Bangkok was based on an honest and reasonable belief that the UCOs were acting within the scope of the first MCOA. They then should have acted immediately, or at least carefully considered doing so, however, the result — the second MCOA — would have been the same, albeit issued about three weeks earlier. Weighing these factors against the probative value of the evidence, which disclosed over 14 months of serious, large-scale international drug trafficking into Australia, her Honour was satisfied that the desirability of admitting the evidence outweighed the undesirability of same.
[25]Ibid [129].

Section 138 legal principles

At common law, a judge may exercise his or her discretion to exclude evidence which has been improperly or unlawfully obtained.[26] In exercising this discretion, a judge must balance competing policy considerations, including ‘the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful [or improper] conduct of those whose task it is to enforce the law’.[27]
[26]Bunning v Cross (1978) 141 CLR 54 (‘Bunning’). The principles on the application of s 138 were helpfully summarised in R v Kerr (Ruling No 1) [2015] VSC 64, [11]–[16], [20].
[27]Bunning (1978) 141 CLR 54, 74 (Stephen and Aickin JJ).

Section 138 of the Evidence Act essentially codifies the common law discretion.[28] Section 138(1) provides:
[28]Robinson v Woolworths Ltd (2005) 64 NSWLR 612, 618 [22] (Basten JA, Barr J agreeing) (‘Robinson’).

138 Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained—
(a)improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law—

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

There are, however, differences between the common law and legislative approaches. One such difference is the burden of proof in an application for exclusion of improperly or illegally obtained evidence; s 138 has altered that burden in a two-stage process.[29] First, the party seeking to exclude the evidence has the burden of satisfying the judge that the impugned evidence was obtained improperly or in contravention of an Australian law.[30] Secondly, the party seeking admission of the impugned evidence must satisfy the court that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.[31]
[29]Employment Advocate v Williamson (2001) 111 FCR 20, [78] (Branson J).
[30]Parker v Comptroller-General of Customs (2009) 83 ALJR 494, 500 [28] (French CJ) (‘Parker’).
[31]Ibid.

Another difference is that while exclusion under the common law is discretionary, s 138 is expressed in mandatory terms: upon satisfaction that the evidence was obtained improperly or in contravention of an Australian law, the judge must exclude the evidence, unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.[32]
[32]See DPP (Vic) v Hicks (No 1) (2014) 240 A Crim R 171, 185 [60] (‘Hicks’).

The Evidence Act, however, does not define ‘improperly’, ‘impropriety’ or ‘contravention’. In Parker, French CJ noted that the relevant ordinary meanings of ‘improper’ included ‘not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong’,[33] while ‘contravention’ referred to ‘[t]he action of contravening or going counter to; violation, infringement, transgression.’[34]
[33]Parker (2009) 83 ALJR 494, 501 [29] (French CJ).
[34]Ibid.

The Court of Criminal Appeal in New South Wales has held that in the absence of a general legislative definition of ‘impropriety’, the common law principles espoused in Ridgeway v The Queen,[35] which were ‘derived from earlier Australian authority’[36] should be applied. The majority accordingly held

that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as ‘the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement’. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be ‘quite inconsistent with’ or ‘clearly inconsistent with’ those standards.[37]

[35](1995) 184 CLR 19.

[36]Robinson (2005) 64 NSWLR 612, 618 [22] (Basten JA, Barr J agreeing). See also Hicks (2014) 240 A Crim R 171, 184 [56].

[37]Robinson (2005) 64 NSWLR 612, 618–619 [23] (Basten JA, Barr J agreeing).

In summary, if the party seeking exclusion of the impugned evidence satisfies the court that the evidence was improperly or illegally obtained, it then falls to the party seeking its admission to persuade the court that it should be nonetheless admitted. The balancing exercise prescribed by s 138(1) is, essentially, the balancing exercise at common law.[38] Section 138(3), however, sets out a list of mandatory factors to be considered when undertaking this balancing exercise:
[38]DPP v Marijancevic (2011) 33 VR 440, 445 [17].

(3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account—
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and

(d) the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

In the context of this application, there is no real contest that the police task forces acted unlawfully. The controversy was primarily focussed upon three subsections in s 138(3):

(c)the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and

(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless[.]

Analysis

In order to understand fully the applicants’ contentions, it is necessary to refer quite extensively to the judge’s reasons for judgment. This will involve some repetition.

In short compass, the applicants:

·conceded orally[39] that the principles developed in House v The King[40] apply to the determination of this interlocutory appeal;
·contended that the trial judge failed to give sufficient weight in the balancing exercise to the factors which militated strongly against admission;
·submitted that the trial judge overvalued factors which weighed in favour of admission; and
·contended that ‘two additional factors’ — the nature of the scheme in pt 1AB of the Crimes Act and the need for strict compliance with that scheme — are factors that also militated strongly against admission.

[39]Contrary to written submissions.

[40](1936) 55 CLR 499, 503 (Dixon, Evatt and McTiernan JJ).

We shall consider the ‘two additional factors’ first. In reality, they are one factor — the implied stringency of the legislation with the associated importance of compliance. Part 1AB of the Crimes Act is the federal regime for the ‘authorisation, control and monitoring of controlled operations’.[41] It controls the circumstances in which law enforcement members participate (usually in an undercover capacity) in the commission of a crime.
[41]Crimes Act s 15G(a).

Division 2 of pt 1AB of the Crimes Act deals with applications for MCOAs and the determination of those applications. Section 15GI governs this determination. A list of mandatory considerations is set out within that subsection. Relevantly, s 15GI(2) provides:

(2)An authorising officer must not grant an authority to conduct a controlled operation unless the authorising officer is satisfied on reasonable grounds:
(a) that either:

(i)a serious Commonwealth offence or a serious State offence that has a federal aspect has been, is being or is likely to be committed; or
…

(b)that the nature and extent of the suspected criminal activity are such as to justify the conduct of a controlled operation; and
(c)that any unlawful conduct involved in conducting the controlled operation will be limited to the maximum extent consistent with conducting an effective controlled operation; and
(d)that the operation will be conducted in a way that ensures that, to the maximum extent possible, any illicit goods involved in the controlled operation will be under the control of an Australian law enforcement officer at the end of the controlled operation; and
(e)that the proposed controlled conduct will be capable of being accounted for in a way that will enable the reporting requirements of Division 4 to be complied with; and
(f)that the controlled operation will not be conducted in such a way that a person is likely to be induced to commit a Commonwealth offence or an offence against a law of a State or Territory that the person would not otherwise have intended to commit; and

(g) that any conduct involved in the controlled operation will not:
(i)seriously endanger the health or safety of any person; or

(ii) cause the death of, or serious injury to, any person; or
(iii)involve the commission of a sexual offence against any person; or
(iv)result in significant loss of, or serious damage to, property (other than illicit goods) …

These are stringent conditions. The language employed, including the phrase ‘must not grant an authority’ in the absence of satisfaction on reasonable grounds, makes this plain.

Senior counsel for the applicants, both before the trial judge and before us orally, emphasised that this comprehensive legislative regime, making legal otherwise illegal conduct, required strict compliance and any breach of controlled conduct was to be taken very seriously. This proposition only needs to be stated to be accepted. Indeed, in our view, there can be no doubt that her Honour reached the same conclusion. In reference to pt 1AB, the judge said this:

Defence referred to the second reading speech given when this legislation was first introduced in 1996. They argue the intention of the legislation was to create a restrictive regime for the authorisation, conduct and monitoring of controlled operations. It is essential that such operations are conducted in conformity with established procedures, and that defence are able to test the process of authorisation and the admissibility of evidence.
Part 1AB creates a comprehensive legislative regime which permits certain persons to commit criminal offences, including serious criminal offences, without being liable at law for their conduct. I agree that as a matter of public policy, it is essential that this regime is taken seriously by those implementing it. It is not simply an internal document creating guidelines or a protocol. It is legislated in the Commonwealth Crimes Act, and a failure to implement the regime carefully may result in evidence being inadmissible. Part 1AB itself recognises this.
Defence argue the ends should not be allowed to justify the means. Strict compliance and close management of a major controlled operation is particularly important given the authorisation process occurs internally, and is not granted by a court or tribunal. I accept this submission.[42]

[42]Ruling No 2, [126]–[128] (citation omitted).

This factor is clearly one that weighed, in the s 138 calculus, against the admission of evidence the product of a breach of pt 1AB. The weight to be given will vary from case to case and will depend upon a judge’s analysis of the s 138(3) factors, including the gravity of the contravention and whether it was deliberate or reckless. The applicants submitted that her Honour failed to take this factor into account, or gave it insufficient weight in the balancing exercise. We shall bear this factor steadily in mind when we come to consider, on all the relevant considerations, whether the judge’s ultimate conclusion was reasonably open.

Section 138(3) factors

Section 138(3)(a): The probative value of the evidence

It is beyond doubt that the probative value of the evidence obtained from the contravention is high. This assessment was not disputed in the pre-trial argument and is not disputed before us. It weighed in favour of admitting the evidence.

Section 138(3)(b): The importance of the evidence in the proceeding

As the judge noted:

It is also not disputed between the parties that the evidence is very important in the proceeding. Essentially the evidence is the entire Crown case. Its importance could not be higher.[43]

[43]Ibid [14].

This assessment is not disputed by the applicants in this application. It weighed in favour of admitting the evidence.

Section 138(3)(c): The nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding

Her Honour concluded that the charges were amongst the most serious on the criminal calendar and rejected the applicants’ arguments that the weight given to this factor ought be diminished because:

(q) the more serious the offence, the more important it is that police follow proper procedures;

(r) the seriousness of the offence cannot be weighed independently of a breach of pt 1AB of the Crimes Act;

(s) the seriousness of this offence involving ultimately an abortive attempt to import narcotics can be contrasted with, for instance, a completed offence against the person such as murder. There is a greater public interest in prosecuting a murderer to conviction, than an unsuccessful, if large-scale, drug importer; and

(t) the crime would not have been committed if police had not set up the Melbourne gate.

In our view, the applicants have failed to demonstrate that the trial judge erred in rejecting these submissions. The more serious the offence, the greater the public interest in convicting the wrongdoer.[44] An agreement to import 100 kilograms of cocaine into this country is grave criminality by any measure, capable, if carried out, of ‘great harm to society’[45] and there is a powerful public interest in pursuing the wrongdoers to conviction.
[44]Dalley (2002) 132 A Crim R 169, 171–2 [1]–[7] (Spigelman CJ, Blanch AJ agreeing at 189 [102], Simpson J dissenting on this point at 174 [19]).
[45]Ruling No 2, [19].

The seriousness of the offending can be considered independently of the breach of pt 1AB. The breach of pt 1AB fell to be considered in various ways in the applicants’ ‘two additional factors’, and under ss 138(3)(d), (e) and (h). Ultimately, the nature of the offending must be considered with all the other relevant factors operating for and against admission, but we do not understand it to be somehow dependent on the circumstances of the breach of pt 1AB. We can discern no error in the judge’s conclusion that ‘the relevance of the seriousness of the criminality here is not diminished because we are dealing with a breach of pt 1AB of the Crimes Act’.[46]
[46]Ibid [17].

Similarly, we agree with her Honour’s conclusion that the fact that police had set up the Melbourne gate is not relevant to the nature of the crime. The gate was set up by police in relation to another offender. The applicants, on the evidence, heard of the existence of the gate and keenly pursued access to it. Her Honour concluded:

There is no suggestion of inducement or entrapment in this case. The accused willingly and enthusiastically sought to use the gate when they learned of its existence. The nature of the subject matter of the proceeding here, being large‐scale international drug importation, is not diminished because the police together with the foreign law enforcement agency … created the gate.[47]

There is no error in this reasoning. This factor weighed in favour of admitting the evidence.

Section 138(3)(d): The gravity of the impropriety or contravention

[47]Ibid [19].

The applicants contended in this application that the judge wrongly ameliorated the gravity of the contravention, which should have weighed strongly in favour of exclusion. Whilst her Honour found the conduct to be a serious breach of the criminal law, so the applicants argued, she erred in three respects in undervaluing this factor in the balancing exercise. Those factors are:

(u) the finding in Ruling No 2 that the impugned activities could have been undertaken lawfully under an appropriately worded MCOA.[48] The applicants submitted orally that this factual finding was not open on the evidence. This finding is also attacked in the applicants’ contentions under s 138(3)(h);

(v) the judge wrongly mitigated the gravity of the contravention by reference to Schott’s genuine belief that the Jomaas might still be involved; and

(w) the judge failed to have regard to other matters affecting the gravity of the contravention, particularised as the persistence and duration of the contravention, and the clear legislative intent that strict compliance with the legislation is required.

[48]Ibid [27]. This finding is restated in different ways at [73] and [119].

The respondent disputed these propositions. Senior counsel for the respondent submitted that it was relevant to consider whether the unlawful conduct could have been undertaken under the protection of an appropriately worded MCOA and her Honour was correct to reach the disputed conclusion.

In Ruling No 2, her Honour said:

Here, unlike Gedeon, the actions of the [UCOs] could have been undertaken under the protection of an authority if that authority was worded in such a way that their conduct was covered.[49] In my view, that fact is relevant to an assessment of the gravity of the contravention. This is not a case where the actions of the police could never be lawful, but rather a case where the actions of the police could readily be lawful under a properly drafted authority. In my view, this ameliorates the gravity of the contravention.[50]

[49]Gedeon (2013) 237 A Crim R 326, 367–368 [220].

[50]Ruling No 2, [27].

On a related topic, the judge said:

Defence also argue I should infer that police didn’t seek a variation or new authority after 2 April because they feared rejection. Schott was cross-examined about this. He said if the Jomaas were out, he would have just gone and got another controlled operation on the new grounds. He could have got another new authority on persons unknown using the handle ‘Ghost’, it’s something he has done in the past.
I regard this as a frank, sensible answer. The granting of authorities contemplates the existence of unknown persons, and people coming into or leaving criminal arrangements. I do not infer the police did not seek a new authority or a variation because they feared their application would be rejected.[51]

[51]Ibid [73]–[74] (citations omitted).

Again, when dealing with s 138(3)(h), her Honour stated:

The simple answer is it is not difficult to obtain the evidence without impropriety or contravention of an Australian law, all that needs be done is that the [MCOA] is carefully and properly drafted, and carefully monitored to ensure that the actions of any [UCO] are properly covered by the authority. Here, of course, such monitoring may not have produced a different result prior to the Bangkok meetings, given in my view it was reasonable for officers to believe the Jomaa brothers may still be involved and they were covered by the first [MCOA].[52]

[52]Ibid [119].

In our view, it was clearly relevant to any consideration of the gravity of the contravention to consider this issue. If actions of the UCOs could never be lawful, then clearly, a breach would be serious indeed. If, however, the conduct could have been undertaken lawfully under a more appropriately worded MCOA, this is a relevant consideration that is capable of mitigating the gravity of the breach or contravention. The breach becomes more amenable to adjectives such as ‘technical’, ‘inadvertent’ or ‘negligent’.

We consider that it was open to the judge to conclude that the unlawful actions of the UCOs would readily have been rendered lawful under a properly drafted MCOA.

First, despite defence submissions to the contrary, there was an evidentiary basis for this conclusion. We have extracted the relevant portions of Schott’s cross-examination in pre-trial argument below:

COUNSEL:Do you agree that in the documents that you artificially included an ongoing interest with the Jomaas, being owners of 85 kilos, just to preserve a nexus with the existing authority? Do you agree with that or not?
SCHOTT:No, that’s not correct at all. I — I would’ve — you know, if I believed the Jomaas were out I would’ve just gone and got another controlled operation on the new grounds.

COUNSEL: Why would you have needed to do that?
SCHOTT:If they weren’t involved and I knew they weren’t involved — um, the controlled operations — um, it - the grounds would’ve been — um, I guess substantially different than put to the delegate. Um, but I still believe that these people were associates of the Jomaas in any case.
COUNSEL:I understand you’ve said that and I’ve questioned you, you’ve answered and that’s your position, but you’ve said that if you knew the Jomaas were out, [you] would’ve regarded the authority as not protecting the coverts, and I just want you to elaborate on why that is?
SCHOTT:Ah, because they wouldn’t have been named as targets or wouldn’t have been associates to the — um, to the controlled operation.
COUNSEL:Yes, and in short … Assistant Commissioner McCartney, he wouldn’t have been in a position to issue an authority if the Jomaas were out? Correct?
SCHOTT:That’s incorrect. We — I could’ve got another new authority — um, on persons unknown using the handle ‘Ghost’. It’s something that I’ve done in the past.
COUNSEL:But you’d have satisfied him of all of the statutory factors set out in the pt 1AB of the Crimes Act, wouldn’t you?
SCHOTT:Yes, but I believe I would’ve have that, no problem, given the messaging and the — um, and the material we had at that date.

COUNSEL:     Yes. You say, ‘I believe’. Did you consider that at the time?
SCHOTT:       Well, I — I know - - -
COUNSEL:     Did you?
SCHOTT:       But it’s not my decision so - - -
COUNSEL: No, I know. Hang on, sorry, I shouldn’t have cut you off then. Go on. You were saying it was not your decision. So continue, sorry?
SCHOTT:It’s not my decision to authorise a controlled operation but I’ve applied for over 150 of these roughly — um, and I — and given that experience of applying and being involved in the application for these authorities I am sure that I would’ve had enough to convince a — a delegate.

Second, it is not necessary for an MCOA to identify the suspected offenders, if that identity is at that stage unknown. If a criminal offence is regarded as likely to be committed at the time an MCOA is granted, it can be focussed on the unlawful activity anticipated as likely, rather than the identity of the unknown participants. Section 15GK(1)(g) of the Crimes Act prescribes that an MCOA must ‘identify (to the extent known) the person or persons targeted’.[53] The MCOA must ‘identify the nature of the criminal activity (including the relevant suspected offences) in respect of which the controlled conduct is to be engaged in’.[54] As at 2 April 2016 (the date on which her Honour found the UCOs’ activities became unlawful), the identity of the perceived Jomaa associate was unknown. The activity, however, was known — the criminal conspiracy to import 100 kilograms of cocaine was already complete, albeit ongoing. In finding that the UCOs’ activities were unlawful, the judge stated:

I note that the scope of the controlled conduct could have been expressed differently, if the focus of the conduct was the importation of cocaine in a shipping container(s) from Panama or Colombia through the use of corrupt Melbourne port workers, rather than the Jomaa family.[55]

[53]Emphasis added.

[54]Crimes Act s 15GK(1)(d).

[55]Ruling No 1, [139].

Third, the first MCOA was granted on 23 March 2016. By that stage, Trident had received intelligence that a Colombian syndicate had proposed to import cocaine into Melbourne via the ports. Trident had been advised that 1,250 kilograms of cocaine was stockpiled by this criminal syndicate. Also, by that stage, Cole of Trident had supplied photographs of a shipping container at the Melbourne port as part of the development of the Melbourne gate subterfuge to be practised on the South American criminals planning the importation. At this time, it was believed that there were criminals working on the Melbourne waterfront, capable and prepared to facilitate the importation of narcotics.[56] It follows there was a substantive basis for the authorising officer to believe that a serious Commonwealth offence was ‘likely to occur’, as required by s 15GI(2)(a)(i) of the Crimes Act.
[56]According to the application for the first MCOA.

We are of the view that the trial judge was correct to consider whether a differently worded MCOA could have authorised the otherwise unlawful conduct of the UCOs; further, we consider that it was open to her Honour to conclude that such an authority would have been readily available had one been sought in a timely manner.

The applicants contended that the judge wrongly mitigated the gravity of the offence by reference to Schott’s genuine belief (after 2 April 2016) that the Jomaas were or might still be involved. Senior counsel for the applicants argued that, whilst her Honour was correct to find that Schott’s belief was relevant to the s 138 considerations and that it was not malicious, the breach was grave for other reasons — particularly, the persistence of the breach, despite clear warning signs. The backdrop of the legislative policy of pt 1AB compounded the gravity of the breach. We do not accept this criticism of the judge’s reasoning. Her Honour gave careful consideration to compliance with pt 1AB,[57] and considered that the breach itself was serious:

Carelessness and negligence are still serious. The foundation of the common law discretion lies in protecting the individual from improper conduct and illegality by police; the right of citizens to insist that those who enforce the law understand and respect it; and the desirability of discouraging police from breaking the law.[58]

[57]See Ruling No 2, [126]–[128].

[58]Ibid [129].

The judge found that up until the Bangkok meetings, the conduct of the police was based on an honest and reasonable belief that they were acting in conformity with the first MCOA:

After Bangkok, a second authority could only be based on what they had obtained to date. They should have acted immediately, or at the very least carefully considered the issue, but the result — a second authority — would have been the same.[59]

[59]Ibid [130].

The applicants disputed the judge’s ‘honest and reasonable belief up until Bangkok’ conclusion. In written submissions, the applicants argued that ‘[i]f Schott’s belief was honest, it was misplaced and not reasonable’. Her Honour was well placed to make an assessment of Schott as a witness. He was cross-examined extensively by senior counsel for the applicants. Her Honour found Schott to be ‘straightforward’,[60] and an ‘honest and direct’[61] witness. This finding was open to the judge on the evidence and she is far better placed than us to make the evaluation. In our view, her Honour was entitled to conclude that up until Bangkok, Schott possessed an honest and reasonable belief that the Jomaas were involved in the criminal conspiracy and up until that stage, at least, she was entitled to use this fact to mitigate the gravity of the breach.
[60]Ibid [59].
[61]Ibid [72].

Finally, on this aspect, the applicants contended that her Honour failed to consider the persistence and duration of the contravention, and the clear legislative intent that strict compliance with the legislation is required. In our view, the judge did not overlook these factors. She found that there was objectively a contravention from 2 April 2016, that police should have been alerted to the breach by 29 April 2016, and yet did not apply for and receive the second MCOA until the 22 and 23 May 2016, respectively. The judge clearly considered these factors in her overall assessment of the evaluation required by s 138 of the Evidence Act and, as we have noted elsewhere, her Honour agreed with the applicants’ submissions that pt 1AB requires strict compliance and that contraventions were to be treated seriously.[62]
[62]Ibid [126]–[128].

As to the applicants’ submissions in relation to the second MCOA that an authorising officer must assess the likelihood of a serious Commonwealth offence being committed without regard to evidence that might be the product of the UCOs’ unlawful conduct, this is contrary to the evaluative balancing exercise required by s 138. Recently, in Kadir v The Queen,[63] the High Court reminded us that s 138 does not enact the ‘fruit from the poisoned tree’ doctrine which prevails in the United States, but rather, ‘provides for the exclusion of evidence obtained by, or in consequence of, impropriety or illegality, unless the product of balancing the competing public interests favours admitting the evidence’.[64] In our view, it is an absurdity to suggest that the authorising officer for the second MCOA should have conducted some inexpert exclusionary exercise on the intelligence and evidence available to him, and then acted on only the admissible residue, while a serious criminal conspiracy was ongoing.

Section 138(3)(e): Whether the impropriety or contravention was deliberate or reckless

[63][2020] HCA 1 (‘Kadir’).

[64]Ibid [40].

The applicants contended that the judge erred in finding that after the conduct of the UCOs became unlawful, police had an honest and reasonable belief until the Bangkok meetings of 29 April to 2 May 2016, that the activities of the UCOs were covered by the first MCOA:

·Throughout April 2016, police were guilty of ‘culpable inattention’.
·There was at least a very reasonable possibility that the Jomaas were out by the start of April 2016. Schott recognised it and discussed it with his superiors.
·The judge should have concluded that there was an egregious failure by the AFP to consider and act over several weeks on the material known to them.
·It was an error to find that Schott’s belief was reasonable in the face of the evidence and the strictness of pt 1AB.
·At an early point in the meeting on 30 April 2016, it was plain that the Jomaas were out and that Ghost was thus covered by the first MCOA. Schott should have acted then.

We shall set out the text of her Honour’s conclusions on this issue:

Overall, I find that the police honestly and reasonably believed up until the Bangkok meetings both that the Jomaas either were or may be involved in the proposed importation, and that the first Authority covered the conduct of the UCOs. The contravention did not involve any knowledge or realisation that the conduct was illegal, and thus falls towards the less serious end of the spectrum. The contravention was not deliberate, reckless, ‘extraordinarily negligent’ or ‘egregious in the face of the evidence’.
I accept that to the extent it was considered, those taking over the investigation after Bangkok believed they were covered by the first Authority, but it seems no‐one properly turned their mind to this question. They assumed coverage. The conduct of the investigators between 2 and 23 May in this regard was careless in the sense of not giving sufficient thought to avoiding harm or errors.
I find the conduct of Schott after the Bangkok meetings approaches negligence. He was the PLEO and effectively abandoned his role without ensuring a new PLEO was appointed. Strong criticism can also be directed at those above him, who in my view should have been actively monitoring and overseeing what was occurring pursuant to the first Authority. I disagree with the description ‘dangerous tool’, but pt 1AB of the Crimes Act sets out a careful regime for conducting major controlled operations that must be complied with. It’s not an internal protocol or a set of suggestions — it is in the Commonwealth Crimes Act and permits what would otherwise be serious criminal conduct. It cannot and should not be ignored by those who have the power to use it.
…
I don’t find that the police gained any unfair advantage, or indeed any advantage, by applying for the second authority on 20 May rather than immediately after Bangkok. Sufficient relevant information to found the second authority had already been obtained once the Bangkok meetings had taken place.
No criticism is made by defence of the police conduct after the second Authority is obtained. They were working in accordance with its terms.[65]

[65]Ibid [109]–[111], [113]–[114] (citations omitted).

In our view, the applicants’ criticisms of the judge’s conclusions are misconceived. As we have said, it was open to the judge to conclude that within the task force, there was an honest and reasonable belief that the Jomaas were or may be involved in the prospective importation and that the UCOs’ activities were covered by the first MCOA. It follows, in our view, that it was open to her Honour to conclude that the contraventions, up until Bangkok, were not deliberate, reckless, ‘extraordinarily negligent’ or ‘egregious in the face of the evidence’.

The judge’s assessment of Schott’s ‘honest and reasonable belief’ was made after hearing extensive oral evidence and consideration of documentary material. We note the following:

(x) Whilst the Jomaa representative had failed to attend a meeting arranged on 29 March 2016, we doubt that any competent and conscientious police officer would exclude them from the investigation on that basis. This seems to be what the applicants contended.

(y) It is plain that Ghost had deliberately left the impression to the UCOs that the people involved ‘earlier’ were his partners.[66]
[66]Ibid [79]–[81].

(z) The BlackBerry message sent just before the aborted 29 March meeting was sent by a Jomaa associate.

(aa) The documentary evidence we have set out in paragraph 56 of these reasons.

In our view, the judge’s assessment of Schott’s ‘honest and reasonable belief’ of the continuing Jomaa involvement up until the Bangkok meetings was open to her and had a solid foundation in the evidence.

As we have set out, the judge was critical of police after the Bangkok meetings and expressed that criticism in strong terms. No one properly turned their mind to the coverage of the first MCOA after it became clear that the Jomaas were not involved. This conduct between 2 May and 23 May 2016 was careless. Schott’s conduct, as PLEO, approached negligence. He effectively abandoned his role and those above him, who should have been monitoring the activities under the first MCOA, were also strongly criticised. In the face of the evidence and these qualified but strong criticisms, we consider that the applicants’ contention that her Honour undervalued this aspect cannot be sustained.

The applicants have failed to demonstrate that it was not open to the judge to reach the conclusions that she did under s 138(3)(e) of the Evidence Act.

Section 138(3)(f): Whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights

No breach of this subsection was alleged by the applicants.

Section 138(3)(g): Whether any other proceeding has been or is likely to be taken in relation to the impropriety or contravention

The applicants contended that this factor strongly favoured exclusion, given the judge’s findings, which the applicants described as ‘harsh’, and the apparent absence of any sanction consequent upon the contravention. The applicants’ submissions contended that s 138(3)(g) was an important subsection and ‘not a polite fanfare for other clauses such as ss 138(3)(d) and (e)’. Deterrence is a key feature of s 138 and central to the operation of pt 1AB.

In our view, this was a factor that did weigh in favour of exclusion, but its impact is mitigated to a degree by the fact that the contravention was at all times not deliberate and prior to the Bangkok meetings, the subject of an ‘honest and reasonable’ belief that the UCOs’ activities were encompassed by the first MCOA. Whilst the progression towards the second MCOA was leisurely and accompanied by inattention approaching negligence by Schott and probably his superiors, there was no finding of reckless or deliberate breach. In these circumstances, this s 138(3)(g) factor weighed in favour of exclusion but its impact on the balancing exercise is mitigated to a degree by the nature of the contraventions.

The judge considered this factor,[67] and appeared to mitigate the impact of the factor on the basis that ‘all officers involved believe that there was nothing they could have done differently or better’.[68] Her Honour observed that the foundation of the common law discretion lay, inter alia, in the ‘desirability of discouraging police from breaking the law’.[69] The judge noted the defence submission with approval that even if an individual officer acted under a mistaken but reasonable belief, that fact ‘would not negate the deterrent effect of evidentiary exclusion’.[70] The effect of exclusion would be to encourage officers to discover, and conform to, the legal requirements.[71] Her Honour went on to balance the need for deterrence against the belief of police up to and after the Bangkok meetings, as we have set out.
[67]Ibid [116]–[117].
[68]Ibid [117].
[69]Ibid [129].
[70]Ibid.
[71]This passage of her Honour’s judgment in Ruling No 2 was cited in [50] of the defence submissions dated 25 June 2019. These submissions in turn cited this passage from Evidence (Interim) [1985] ALRC 26.

We are not satisfied that her Honour failed to take this factor into account, or that she failed to accord it sufficient weight.

Section 138(3)(h): The difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law

Insofar as the evidence gathered under the first MCOA was concerned, the judge found that this factor did not support exclusion:

Consideration of this factor produces different answers depending upon how it is approached.
The simple answer is it is not difficult to obtain the evidence without impropriety or contravention of an Australian law, all that needs be done is that the [MCOA] is carefully and properly drafted, and carefully monitored to ensure that the actions of any [UCO] are properly covered by the authority. Here of course such monitoring may not have produced a different result prior to the Bangkok meetings, given in my view it was reasonable for officers to believe the Jomaa brothers may still be involved and they were covered by the first Authority. Alternatively, it may have led as a matter of prudence to the adding in of ‘the person using the BB handle Ghost’ as far back as 15 April, with the result that the evidence could easily have been obtained lawfully.
Overall, when considering the first Authority, this is not a factor that weighs in favour of exclusion. I say that because obtaining the evidence lawfully would have involved the investigators recognising that they were outside the scope of the first Authority. Subjectively, they reasonably believed they were covered by the first Authority, and the situation was unfolding and developing.[72]

[72]Ruling No 2, [118]–[120] (citations omitted)

There is no error in this reasoning. In Kadir, the High Court stated:

[W]here the impropriety or illegality involved in obtaining the evidence is deliberate or reckless (factor (e)), proof that it would have been difficult to obtain the evidence lawfully will ordinarily weigh against admission.[73] By contrast, where the impropriety or illegality was neither deliberate nor reckless, the difficulty of obtaining the evidence lawfully is likely to be a neutral consideration.[74]

[73]R v Borg (2012) 220 A Crim R 522, 547–548 [103]–[108]; R v Gallagher [2015] NSWCCA 228, [47]–[48] (Beech-Jones J, Gleeson JA and Adams J agreeing).

[74]Kadir [2020] HCA 1, [20].

To the extent that the applicants argued that the judge erroneously concluded that an appropriate worded MCOA could have readily been generated, we have dealt with this argument elsewhere in these reasons. In short, we consider the argument to be without merit.

Insofar as the second MCOA was considered, her Honour said:

When it comes to the Second Authority, in my view it could not be obtained without relying on the evidence obtained under the first Authority. In this way, it would be extremely difficult if not impossible to obtain the evidence other than in consequence of a contravention of an Australian law. I note this paragraph directs attention to the difficulty of obtaining the evidence without impropriety or contravention. Here, I am really dealing with the difficulty of obtaining the evidence other than in consequence of a contravention.
I am satisfied here that there was no deliberate cutting of corners by police. However, nor was there any urgency, such as an immediate risk to personal safety or destruction of evidence, which may justify the contravention, although there was a need for the [UCOs] to stay in their role and continue contact, in order to maintain a convincing presence.
The defence suggestion that after 30 April, the [UCOs] could somehow have kept talking to the accused, but not engaged in controlled conduct, is in my view unworkable and against common sense. I do not require evidence about that. It would have been suspicious in the extreme if the [UCOs] had suddenly steered discussion away from the planned importation, and rather just wanted to talk to the accused, whatever that means.
Overall, when considering the Second Authority, this is a factor that weighs in favour of admitting the evidence. In circumstances where the police reasonably believed they were covered by the first Authority, then even if they had recognised the problems after the Bangkok meetings, all they could have done was obtain a second authority based on the information they had obtained using the UCOs. In other words, whether they recognised the problem or not, the result would have been the same other than the Second Authority would have been obtained sooner. Whilst I am critical of the conduct of the first major controlled operation in the period between Bangkok and 23 May 2016, that criticism does not lead me to a conclusion that the officers could have obtained the Second Authority, and therefore the evidence, in any different way.[75]

[75]Ruling No 2, [121]–[124] (citations omitted).

There is no error in the reasoning within these paragraphs. Her Honour correctly found that the evidence gathered under the second MCOA could not have been obtained without reliance upon the evidence obtained under the first MCOA. The applicants’ suggestion that the UCOs should have engaged with the criminal combination without indulging in controlled conduct in order to obtain untainted evidence to present in an MCOA application, is impractical. Her Honour correctly concluded it to be ‘unworkable and against common sense’.[76]

Overall balancing exercise under s 138

[76]Ibid [123].

The applicants complained that the judge conducted no transparent weighing process as required by s 138. It is correct that after dealing with each individual component of s 138(3) and the ‘two additional factors’ relied upon by the applicants, the judge’s reasons progress rapidly to announcing her ultimate conclusion that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. This is not to say that the judge did not conduct the relevant exercise. Her reasoning is found throughout the judgment, rather than in the concluding paragraphs.

The type of balancing exercise contemplated by s 138 is not amenable to a scientific or quantitative calculation. Ultimately, a decision maker will need to balance competing public interests within the unique factual setting of the individual case. The result will be a product of careful factual analysis, the application of the section and relevant case law, and the decision maker’s intuitive evaluation of the weight that ought be given to factors weighing for and against exclusion. Although receiving little attention from the applicants in this application, the probative value of the evidence, the importance of the evidence in the proceeding and the nature of the relevant offence were all factors that were considered by the judge, and were entitled to weigh heavily in favour of admitting the evidence.

Whilst other factors may have weighed in favour of excluding the evidence, in our view, it was open to the judge to mitigate or ameliorate the weight given to them as a consequence of her findings, particularly relating to the gravity of the contravention and the fact that it was not deliberate or reckless.

Conclusion

Overall, the applicants have failed to demonstrate that the findings of the judge were not reasonably open, or that her Honour’s reasoning was infected by irrelevant considerations or by overlooking relevant considerations. In view of those findings, and in all of the circumstances, it was open for the judge to be satisfied that the desirability of admitting the evidence outweighed the undesirability of admitting it.

Leave to appeal is refused.

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Jin Wu (a pseudonym)[1] v The Queen [2020] VSCA 94

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[2020] VSCA 94

22 April 2020