Koushappis v The Queen
[2003] WASCA 146
•27 JUNE 2003
KOUSHAPPIS -v- THE QUEEN [2003] WASCA 146
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 146 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:206/2002 | 22 APRIL 2003 | |
| Coram: | TEMPLEMAN J WHEELER J HASLUCK J | 27/06/03 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave dismissed | ||
| B | |||
| PDF Version |
| Parties: | ANDREW CHRIS KOUSHAPPIS THE QUEEN |
Catchwords: | Criminal law Appeal against conviction Whether satisfactory explanation for delay in bringing appeal Significance of lack of formal authority for police undercover officer |
Legislation: | Criminal Code, s 24 Misuse of Drugs Act 1981 (WA), s 31, s 39 |
Case References: | Bunning v Cross (1978) 141 CLR 54 Koushappis v The Queen [2001] WASCA 18 Nicholas v The Queen (1998) 193 CLR 173 Ridgeway v The Queen (1995) 184 CLR 19 Gavin v The Queen (1991) 6 WAR 195 Mickelberg v The Queen (1989) 167 CLR 259 Ratten v The Queen (1974) 131 CLR 510 Suresh v The Queen (1998) 153 ALR 145 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : KOUSHAPPIS -v- THE QUEEN [2003] WASCA 146 CORAM : TEMPLEMAN J
- WHEELER J
HASLUCK J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Appeal against conviction - Whether satisfactory explanation for delay in bringing appeal - Significance of lack of formal authority for police undercover officer
Legislation:
Criminal Code, s 24
Misuse of Drugs Act 1981 (WA), s 31, s 39
Result:
Application for leave dismissed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr T F Percy QC & Mr N J Mullany
Respondent : Mr S E Stone
Solicitors:
Applicant : McKenzie Lalor
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bunning v Cross (1978) 141 CLR 54
Koushappis v The Queen [2001] WASCA 18
Nicholas v The Queen (1998) 193 CLR 173
Ridgeway v The Queen (1995) 184 CLR 19
Case(s) also cited:
Gavin v The Queen (1991) 6 WAR 195
Mickelberg v The Queen (1989) 167 CLR 259
Ratten v The Queen (1974) 131 CLR 510
Suresh v The Queen (1998) 153 ALR 145
(Page 3)
1 TEMPLEMAN J: On 30 May 2000, after a trial by Judge and jury in the Supreme Court sitting at Kalgoorlie, the applicant was convicted of three offences under the Misuse of Drugs Act 1981. Two offences, being counts 1 and 2 on the indictment, involved the applicant selling quantities of heroin to an undercover officer authorised pursuant to s 31 of the Misuse of Drugs Act, by a delegate of the Commissioner of Police. The third offence, being count 3, involved the applicant having in his possession a quantity of heroin with intent to sell or supply to another.
2 The applicant was sentenced to 4 years' imprisonment on each of counts 1 and 2, and 6 years' imprisonment on count 3, all sentences to be served concurrently.
3 The applicant now seeks leave to appeal, out of time, against his conviction. His application is based on the fact that the undercover officer was not authorised at the material time, with the result (it is contended) that evidence obtained against the applicant was tainted with illegality and should not have gone to the jury.
4 Evidence was given at the trial by Commander Darryl Edwin Balchin, who was then the Regional Police Officer for the Kalgoorlie Police Region. Commander Balchin gave evidence that the Commissioner of Police had delegated to him the power which the Commissioner has under s 39 of the Misuse of Drugs Act to delegate any of his powers under the Act. The Commander said that on 9 November 1998, he had signed an authorisation for a person known as Kalgoorlie Registered Informant No 4 to be an undercover officer pursuant to the provisions of the Act. That evidence was not challenged.
5 In December 2001, the applicant appeared before the District Court sitting in Kalgoorlie on a charge of selling a quantity of a prohibited substance, methylamphetamine, to another. That "other" was also an undercover officer, being Kalgoorlie Registered Informant No 6.
6 Again, Commander Balchin was called by the prosecution to prove that he had signed the authorisation which permitted the informant to act as he did.
7 On that occasion, Commander Balchin's evidence was challenged. It emerged in his cross-examination, that the Commissioner of Police had not delegated to Commander Balchin, his powers under s 39 of the Misuse of Drugs Act.
(Page 4)
8 In those circumstances, the learned trial Judge declined to exercise a discretion to permit the undercover officer to give evidence. His Honour directed the jury to acquit the applicant.
9 This prompted the applicant's solicitors to revisit the evidence adduced against the applicant in the May 2000 trial. In so doing, it emerged that the Commissioner of Police had not delegated to Commander Balchin his power to authorise the actions of the registered informant to whom the applicant had sold the amounts of heroin which were the subject of counts 1 and 2 at the May 2000 trial.
10 Although the applicant's solicitors became aware of these matters in December 2001, this application was not made until 18 November 2002, some 18 months after the applicant was convicted and over 12 months after Commander Balchin had given evidence at the second trial.
The explanation for the delay
11 The delay was explained in an affidavit of Carmel Anne McKenzie, the applicant's solicitor. Ms McKenzie deposed to the fact that "new evidence has come to light since the time for appealing … expired". That "new evidence" is the fact that Commander Balchin was not, at the material time, a delegate of the Commissioner of Police for the purposes of s 39 of the Misuse of Drugs Act.
12 In my view, that is not new evidence. While I accept that those representing the applicant did not know about the lack of Commander Balchin's authority in May 2000, they could have discovered it, by reasonable diligence. All they had to do, as was done by counsel at the second trial, was to ask for the production of the written authorisation required by s 39 of the Misuse of Drugs Act.
13 I return to Ms McKenzie's affidavit. She went on to say that there had been delays:
"attributable to the length of time it has taken to obtain a transcript of the original proceedings … and a transcript of the proceedings that occurred in the District Court of Western Australia on 3 December 2001. The transcript for these proceedings was obtained on 6 May 2002.
Upon receipt of the transcript of those proceedings we sought to obtain Counsel's opinion in relation to this matter which caused a further short delay."
(Page 5)
14 Accepting that it was desirable for transcripts to be obtained, Ms McKenzie did not say when the request for the transcript was made. Further, there is no satisfactory explanation of the delay between 6 May and 18 November 2002 when this application was made.
15 Mr Percy QC who appeared for the applicant told us from the Bar table that the real problem was funding. Accepting that to have been the case, the applicant's solicitors must have known it: and Ms McKenzie should have deposed to the fact in her affidavit. I regard it as wholly unacceptable for the explanation for a lengthy delay to be given from the Bar table to supplement an inadequate affidavit.
16 When considering an application for leave to appeal out of time against a conviction, it is customary to take into account the merits of the applicant's case. However, there are circumstances in which that is not necessary. In my view, this is such a case. I hold that view not only because the delay is substantial and explained inadequately, but also because the outcome of the application is unlikely to have any practical effect on the applicant. He has served the custodial part of his sentence of 6 years' imprisonment and has been released to parole.
17 While I accept that the recording of these three convictions against the applicant is a serious matter, it must be put into a context. That is provided by the reasons given in this Court for its decision to dismiss the applicant's appeal against the sentence of 6 years' imprisonment for the offences in question: Koushappis v The Queen [2001] WASCA 18. Kennedy J, who gave the leading judgment, said, at [5]:
"The applicant has an extremely bad record, which included a conviction for rape in 1981. In September 1987 he had convictions for possessing heroin with intent to sell or supply it, and for selling, or supplying heroin. In December 1987, he had convictions for possessing heroin with intent to sell or supply it and, in August 1995, he had a conviction for possessing amphetamine with intent to sell or supply it. He also had a substantial number of other convictions, which clearly indicated that he had no regard for the observance of the law or for the previous sentences imposed upon the applicant had not served to curb his activities as a drug trafficker."
18 In all the circumstances, I would not grant the applicant leave to appeal out of time.
(Page 6)
19 As I have said, I have come to that conclusion without regard to the merits of the applicant's case. However, I am of the view that the applicant's case is without merit in any event. There are two reasons. First, I consider that if the lack of authority of the undercover officer had emerged during the trial, it is likely that the trial Judge would have exercised a discretion to admit the relevant evidence. Secondly, I consider that count 3 on the indictment of 15 November 1999 stands alone in the sense that it is not tainted by any unlawfulness arising from the lack of authority of the undercover officer. I now set out my reasons for reaching those conclusions.
The significance of the lack of authority
20 There is no doubt that in purchasing heroin from the applicant in the transactions which were the subject of counts 1 and 2 on the indictment, the informant, not being authorised to act as an undercover officer, acted unlawfully. That is to say, the informant had heroin in his possession, albeit for a short time, before he delivered it to the police for destruction. However, there can be little doubt that the informant committed no criminal offence because he may be taken to have acted under an honest and reasonable, but mistaken, belief that he had been duly authorised: see the Criminal Code, s 24.
21 That inference arises from affidavits sworn in this application by Detective Senior Constable Douglas Stjepic and Commander Balchin. The affidavits were received by the Court without objection from counsel for the applicant.
22 Detective Stjepic said that at the material time he was attached to the Kalgoorlie Detectives Office where he was the officer-in-charge of a police operation codenamed "Swift", which culminated in the arrest of the applicant. Detective Stjepic said that as a result of his investigations, he requested Commander Balchin to sign an authorisation for the undercover officer. He said:
"At the time I requested Commander Balchin to sign the authorisation, Commander Balchin was the regional officer for the Kalgoorlie Police Region. I genuinely and honestly believed that in that capacity Commander Balchin had delegated authority from the Commissioner of Police to sign the authorisation."
(Page 7)
23 Commander Balchin, in his affidavit, deposed to the fact that he had been requested by Detective Stjepic to sign the authorisation pursuant to s 31(1) of the Misuse of Drugs Act 1981. The Commander said:
"At the time I was requested to sign that authorisation, I genuinely and honestly believed that the Commissioner of Police had delegated to me in my capacity as regional police officer for the Central Police Region the authority to authorise a person to act as an undercover officer."
24 It was accepted by counsel for the applicant that Detective Stjepic and Commander Balchin had acted in good faith. They were not cross-examined on their affidavits.
25 In those circumstances, although no evidence was given by the informant himself, it is reasonable to infer that he acted under a mistake of fact which, pursuant to s 24 of the Criminal Code, would have the effect that he was not criminally responsible for possessing, the two amounts of heroin he purchased from the applicant on the day in question.
The discretion to admit the evidence
26 Mr Percy conceded that if the defective authorisation of the informant to act as an undercover officer had been discovered at trial, the trial Judge would have had a discretion to admit the evidence against the applicant, even though such evidence had been obtained unlawfully. That is a proper concession, having regard to the decision of the High Court in Bunning v Cross (1978) 141 CLR 54.
27 In that case, a breathalyser test was administered to a driver without any of the statutory preconditions having been satisfied. The driver was charged with an offence which involved driving while under the influence of alcohol. The charge could have been proved only by admitting the evidence of the breathalyser test result, which had been obtained unlawfully.
28 In the High Court, Stephen and Aickin JJ, (at 141 CLR p 77-8) with whom Barwick CJ agreed, referred to the increasing need for the protection of the liberty of the subject "in response to the demand for more active regulatory intervention in the affairs of … citizens". Their Honours spoke of:
" … a continuing flood of measures affecting day-to-day conduct, much of it hedged about with safeguards for the
(Page 8)
- individual. These safeguards the executive, and, of course, the police forces, should not be free to disregard. Were there to occur wholesale and deliberate disregard of these safeguards its toleration by the courts would result in the effective abrogation of the legislature's safeguards of individual liberties, subordinating it to the executive arm. This would not be excusable however desirable might be the immediate end in view, that of convicting the guilty. In appropriate cases it may be 'a less evil that some criminals should escape than that the Government should play an ignoble part' - per Holmes J in Olmstead v United States. Moreover the courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law. On the other hand it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law." (my emphasis)
29 Their Honours went on to consider a number of factors which led them to the conclusion that on balance, the evidence of the breathalyser test should be admitted. In striking that balance, they took account of the fact that "no deliberate disregard of the law appears to have been involved". Later, their Honours said:
"Although such errors are not to be encouraged by the courts they are relatively remote from the real evil, a deliberate or reckless disregard of the law by those whose duty it is to enforce it."
30 Their Honours then went on to note that the nature of the illegality did not in that case affect the cogency of the evidence so obtained. In that context, they said:
"To treat cogency of evidence as a factor favouring admission, where the illegality in obtaining it has been either deliberate or reckless, may serve to foster the quite erroneous view that if such evidence be but damning enough that will of itself suffice to atone for the illegality involved in procuring it. For this reason cogency should, generally, be allowed to play no part in
(Page 9)
- the exercise of discretion where the illegality involved in procuring it is intentional or reckless … where, as here, the illegality arises only from mistake, and is neither deliberate nor reckless, cogency is one of the factors to which regard should be had. It bears upon one of the competing policy considerations, the desirability of bringing wrongdoers to conviction."
31 In my view, these considerations apply with equal force in the present case. It being accepted by the applicant that Commander Balchin and Detective Stjepic acted in good faith, it cannot be said that there was any deliberate or reckless disregard of the law. Indeed, being aware of the requirements of the Misuse of Drugs Act, both officers intended to comply with the law and honestly believed they had done so.
32 Mr Percy submits, however, that the law has moved on since Bunning v Cross. He relies on a more recent decision of the High Court in Ridgeway v The Queen (1995) 184 CLR 19. There, the appellant had been convicted of an offence under the Customs Act 1901 (Cth) in relation to the possession without reasonable excuse of a prohibited import, namely heroin. The heroin had been imported into Australia by a member of the Anti-Narcotics Branch of the Royal Malaysian Police Force as part of an operation involving the controlled importation and delivery of heroin with the specific aim of apprehending the appellant in possession of the drug in Australia.
33 It was conceded at Ridgeway's trial that the arranged importation of the heroin contravened s 233B of the Customs Act, although no member of the Australian Federal Police Force involved in the illegal importation had been charged with any offence.
34 The majority of the High Court held that the importation of the heroin by law enforcement officers was illegal; and therefore, evidence of the importation should have been excluded on the grounds of public policy. Had the evidence been excluded, the prosecution would have been unable to prove a necessary element of the offence with a result that the appellant should have been acquitted.
35 On that basis Brennan and Toohey JJ held that the appellant was entitled to be acquitted of the charge involving the possession of the prohibited import. Mason CJ, Deane and Dawson JJ however, concluded that a permanent stay of the proceedings was the appropriate disposition.
(Page 10)
36 One of the crucial considerations in Ridgeway was that it was the illegal conduct of police officers which had created one of the elements of an offence with which the appellant had been charged. The exclusion of the evidence was an application of what Steven and Aickin JJ had described in Bunning v Cross(supra), (at p 74) as "high public policy".
37 As McHugh J noted in Nicholas v The Queen (1998) 193 CLR 173 at 216–7, the "high public policy" is necessary to preserve the integrity of the administration of justice and to protect the processes of the courts of justice.
38 As I understand Mr Percy's submission in the present case, it is that the power of the Commissioner of Police to authorise a person to act as an undercover officer should be guarded jealously. Because Parliament has expressed the clear intention that only the Commissioner or his delegate may authorise a person to act as an undercover officer, the Court should not accept evidence obtained by, or as a result of the activities of, a person who is not duly authorised.
39 Failure to give effect to this intention, Mr Percy submits, would result in precisely that demeaning of the administration of justice to which Mason CJ, Deane and Dawson JJ referred in Ridgeway, at 184 CLR p 32.
40 The difficulty with Mr Percy's submission, in my view, is that if correct, it would virtually rule out the exercise of any discretion to admit evidence obtained by an undercover officer whose authority was deficient in any way. And yet, Mr Percy does not, and cannot, deny the existence of the discretion.
41 I accept that the authorisation of undercover officer pursuant to s 31 of the Misuse of Drugs Act is a serious matter. This is reflected in the fact that the authorisation can be given only by the Commissioner of Police or a delegate, of or above the rank of Inspector. This limitation is intended to protect the community from the dangers of abuse of the power.
42 Where it emerges that there has been no proper authorisation, an accused person who is likely to be affected by evidence obtained unlawfully is entitled to know the circumstances in which a breach of s 31 of the Misuse of Drugs Act occurred. That would usually be done on the voir dire.
43 In the present case, there was, of course, no voir dire. Nor was it sought to explore the relevant circumstances by cross-examining either Commander Balchin or Detective Stjepic on their affidavits, which did not
(Page 11)
- provide any detail. I repeat: it was accepted that they had acted in good faith.
44 In these circumstances, I do not regard this as a Ridgeway case. Rather it is analogous to Bunning v Cross (supra), although I accept that the seriousness of the offence here is much greater. It carries a maximum term of imprisonment of 25 years and is therefore in an entirely different league from drink-driving offences. However, this is a case of an unfortunate mistake made by police officers who, as I have said, were aware of the law and intended to comply with it. Furthermore, Commander Balchin had previously acted in place of the officer to whom the Commissioner of Police had delegated his power to authorise undercover officers. That being so, Commander Balchin must be regarded as an officer having the degree of seniority and experience appropriate to the exercise of the delegated authority.
45 In these circumstances, I am not persuaded that there has been any demeaning of the administration of justice in the present case. In my view, the public interest and the apprehension of the applicant in the commission of serious drug offences outweighs the defect in the authorisation of the informant to act as an undercover officer with the result that it would not have been appropriate, had the matter been raised at trial, to exclude the material evidence.
The third count stands alone
46 I take the relevant facts from the outline of submissions prepared by Mr Percy on behalf of the applicant.
"(1) On 9 November 1998 an authorised undercover officer within the meaning of s 31 of the (Misuse of Drugs) Act attended the home address of the Applicant, … with the intention of purchasing heroin. It was alleged that at the Applicant's home the operative handed the Applicant a $100.00 note (the serial number of which was marked) and in return the Applicant removed a paper fold containing approximately 0.04 grams of heroin powder from a black film canister and handed it to the operative.
(2) It was alleged the operative arranged to return later to purchase a further two folds of heroin powder from the Applicant. The operative returned to the Applicant's home later the same afternoon and handed to the
(Page 12)
- Applicant $200.00 (2x marked $100.00 notes) and in return the Applicant removed a further two paper folds containing 0.05 grams of heroin powder from a black film canister and handed them to the operative.
- (3) Fifteen minutes after the second alleged sale to the operative, Kalgoorlie Detectives executed a search warrant at the Applicant's home under the provisions of the Act. Police observed the Applicant to run from the kitchen to the bathroom and entry was gained by force. The Applicant was observed attempting to flush the contents of a black film canister down the toilet. Detectives alleged they removed 23 paper folds which were water saturated and found to contain traces of heroin.
(4) It was alleged that further searches of the Applicant's home revealed scales, paper folds cut outs, bags and $3,635.00 cash, including the 3 x $100.00 marked notes allegedly used by the operative to purchase heroin in the Applicant's wallet."
- Count 3 on the indictment was based on the evidence referred to in paragraphs (3) and (4) above, although the marked notes were not necessary to the proof of that charge.
47 There is no evidence about the circumstances in which the search warrant referred to in paragraph (3) was obtained. There has never been any challenge to the legitimacy of that warrant. Even if it be accepted that the issue of the search warrant was prompted by the activities of the informant, it would be inappropriate to regard it as tainted by his lack of authority as an undercover officer when it is not suggested he committed any offence in providing the information on which the warrant was sought.
48 Mr Percy submitted that "the whole operation was mounted as a result of the two transactions effected by the informant and the information supplied to the police had enabled the police's entry of the applicant's premises".
49 There is no evidence to that effect. However, assuming it to be the case, in my view, the situation is distinguishable from Ridgeway (supra) upon which Mr Percy again relies. There, at 184 CLR, p 43, Mason CJ and Deane and Dawson JJ held that:
(Page 13)
- " … the learned trial Judge should have ruled that all evidence tending to show that the heroin supplied to the appellant had been, or was reasonably suspected of having been, illegally imported should be rejected on public policy grounds. The evidence so excluded should have included any evidence from which any inference of illegal importation might be drawn (eg that heroin is not produced in Australia)."
- Because the supply of heroin to the appellant followed from the wholly illegal importation of the drug into Australia, all evidence of heroin supply to the appellant must have been tainted.
50 By contrast, in the present case, even assuming that the informant provided the information upon which the search warrant was based, the evidence obtained as a result of the execution of the warrant was sufficient to prove the commission of the offence charged by count 3. It was not necessary to resort to any evidence about the activities of the informant. The evidence was not tainted, therefore.
51 In these circumstances, I conclude that count 3 stands alone: and it was the applicant's conviction on that count which attracted the head sentence of 6 years' imprisonment.
52 For all these reasons, I would dismiss the application.
53 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Templeman J. I agree with his Honour's reasons for finding that the delay in this application has not been satisfactorily explained. I also agree that this was a case in which the appropriate exercise of the trial Judge's discretion would have been to admit the evidence in question, assuming the defect in Commander Balchin's authority had been discovered at trial. In any event, as his Honour points out, the evidence relating to count 3 on the indictment was not affected by the defect in Commander Balchin's authority. I would therefore dismiss the application.
54 HASLUCK J: I agree with the reasons for decision of Templeman J and with the orders proposed. There is nothing I wish to add.
10
2