La Rocca v The King

[2023] NSWCCA 45

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

La Rocca v R [2023] NSWCCA 45

Hearing dates:

3 March 2023

Date of orders:

10 March 2023

Decision date:

10 March 2023

Before:

Bell CJ at [1];
Davies J at [66];
N Adams J at [67]

Decision:

1. Grant leave to appeal.

2. Allow the appeal.

3. Set aside the notice of motion for a permanent stay of proceedings.

4. Order that that the proceedings be permanently stayed.

Catchwords:

CRIMINAL PROCEDURE – where permanent stay of criminal proceedings sought - inherent power to prevent abuse of process - whether administration of justice would be brought into disrepute if proceedings permitted to continue – external appearance of consignment altered causing conceded incurable disadvantage to accused - where conduct of police deprived applicant of practical ability to seek to argue statutory defence – whether primary judge’s exercise of discretion in refusing stay of proceedings miscarried

Legislation Cited:

Criminal Appeal Act 1912 (NSW) s 5F(3)

Criminal Code Act 1995 (Cth) ss 11.1(1) and 307.5(1)

Law Enforcement (Controlled Operations) Act 1997 (NSW) s 13(a)

Cases Cited:

Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48

Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22

Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20

House v The King (1936) 55 CLR 499; [1936] HCA 40

Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46

La Rocca v R [2021] NSWCCA 116

Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20

Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50

R v Glennon (1992) 173 CLR 592; [1992] HCA 16

R v Grant [2009] 2 SCR 353

R v Horseferry Road Magistrates’ Court; ex parte Bennett [1994] 1 AC 42

Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66

Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42

Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53

Truong v The Queen (2004) 223 CLR 122; [2004] HCA 10

Category:

Principal judgment

Parties:

Jason La Rocca (Applicant)
The Crown (Respondent)

Representation:

Counsel:

B W Walker SC with B Vasic (Applicant)
S Callan SC with D New (Respondent)

Solicitors:

David Legal (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2017/281900

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

07 September 2022

Before:

Judge P Musgrave

File Number(s):

2017/281900

HEADNOTE

[This headnote is not to be read as part of the judgment]

Jason La Rocca (the Applicant) applied for leave to appeal from a decision of Musgrave DCJ (the primary judge) made on 7 September 2022 to dismiss a notice of motion seeking orders that his prosecution be permanently stayed.

The Applicant was charged with attempting to possess a commercial quantity of an unlawfully imported border controlled drug under ss 11.1(1) and 307.5(1) of the Criminal Code Act 1995 (Cth) (the Code). Section 307.5 was subject to a statutory defence contained in s 307.5(4). In order to successfully raise that defence, a person in possession of, or attempting to possess, an unlawfully imported commercial quantity of a border controlled drug must prove, on the balance of probabilities, that he or she did not know that the border controlled drug was unlawfully imported.

The basis for the Applicant’s stay application was that the officer in charge of the investigation had deprived him of his ability to seek to establish the statutory defence by affixing a Singapore Airlines label to one of two boxes containing candles which concealed 14.69kgs of 3,4-Methyl​enedioxy​methamphetamine (MDMA), thus identifying their status as imported goods (the impugned conduct). The boxes formed part of a consignment of three boxes that had, in fact, been imported from Singapore which were intercepted and inspected by the Australian Border Force. They were later repackaged and reconstructed by the NSW Police Force as part of a controlled delivery operation. It was during this process that the impugned conduct occurred. There was no evidence as to whether the boxes in their original form identified their point of origin. But the investigating officer agreed that the Singapore Airlines label was a new element in the appearance of the box compared to how he had first seen it.

Although the primary judge found that the officer’s conduct was not deliberate or reckless and that it was not designed to deprive the Applicant of the possibility of raising the statutory defence, her Honour also held that the practical effect of the affixation of the label was that the accused could not raise the statutory defence and that this subjected the Applicant to an incurable forensic disadvantage. Notwithstanding this finding, her Honour was not satisfied that the continued prosecution would bring the administration of justice into disrepute such that the proceedings ought to be stayed.

The principal issues for determination on appeal were whether:

1. the primary judge’s discretion miscarried because her Honour took into account an irrelevant consideration, namely, that “the potential unfairness … only crystallised when [the Applicant] took the opportunity afforded to him of taking possession of the box”;

2. the primary judge erred in finding that an absence of intention on the part of the officer in charge of the investigation to bring about the consequences of depriving the Applicant of an opportunity to raise a statutory defence meant that the proceedings should not be stayed; and

3. the decision of the primary judge to refuse the application for a permanent stay was not one reasonably open to her.

The Court held (Bell CJ, Davies and N Adams JJ agreeing), granting leave to appeal, allowing the appeal and ordering that the proceedings be permanently stayed:

1. A permanent stay of criminal proceedings should only be granted in rare and exceptional circumstances. Although there is no definitive category of such extreme cases, a stay may be appropriate where the administration of justice would be brought into disrepute should a stay not be granted: [34] (Bell CJ); [66] (Davies J); [67] (N Adams J).

Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; R v Glennon (1992) 173 CLR 592; Dupas v The Queen (2010) 241 CLR 237; Moti v The Queen (2011) 245 CLR 456; Rogers v The Queen (1994) 181 CLR 251, referred to.

2. The administration of justice may be brought into disrepute where conduct by investigating police officers gives rise to a fundamental defect in the trial process which is incurable and flouts the will of Parliament, irrespective of whether that conduct was deliberate, reckless or knowing: [34], [40]-[44] (Bell CJ); [66] (Davies J); [67] (N Adams J).

Barton v The Queen (1980) 147 CLR 75; Jago v District Court (NSW) (1989) 168 CLR 23; R v Glennon (1992) 173 CLR 592; Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325, referred to.

3. It was irrelevant, on the facts of this case, for the primary judge to have had reference to the distinction drawn elsewhere between police misconduct which merely creates an opportunity for offending and that which caused the offence: [54], see also [51] (Bell CJ); [66] (Davies J); [67] (N Adams J).

Ridgeway v The Queen (1995) 184 CLR 19, referred to and distinguished.

4. As a direct result of the deliberate alteration of the boxes by the officer in charge of the investigation, the Applicant was subjected to unfairness or forensic disadvantage in that he was practically deprived of the ability to seek to argue the statutory defence: [55]-[56] (Bell CJ); [66] (Davies J); [68]-[72] (N Adams J).

5. In this respect, the position of the prosecution vis-à-vis the accused was altered and the intention of Parliament to afford an opportunity to a person caught in possession of commercial quantity of drugs to raise a defence as to ignorance of their foreign origin subverted: [55] (Bell CJ); [66] (Davies J); [67] (N Adams J).

6. The seriousness of that unfairness was not diminished by the timing of its “crystallisation”, nor was it a disadvantage that could be cured by directions or undertakings: [57] (Bell CJ); [66] (Davies J); [67] (N Adams J).

7. Although it was relevant for the primary judge to have regard to the fact that the consequences of the officer’s conduct were not deliberate or intended, this did not alter the fact that incurable prejudice to the Applicant still arose in the context of a serious offence carrying a maximum sentence of life imprisonment: [58]-[62] (Bell CJ); [66] (Davies J); [67] (N Adams J).

8. Ultimately, the deliberate alteration of the appearance of evidence in a manner directly material to the Applicant’s ability to establish a statutory defence went to the root of the administration of justice such that it was not reasonably open for the primary judge to refuse to grant the stay on the extraordinary facts of the case: [63]-[64] (Bell CJ); [66] (Davies J); [67] (N Adams J).

9. General consideration by Bell CJ of principles relating to permanent stays of criminal proceedings, and ways in which the administration of justice may be brought into disrepute: [34] (Bell CJ).

Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; R v Horseferry Road Magistrates’ Court; ex parte Bennett [1994] 1 AC 42; R v Grant [2009] 2 SCR 353; Moti v The Queen (2011) 245 CLR 456; Rogers v The Queen (1994) 181 CLR 251, referred to.

JUDGMENT

1. BELL CJ: On 7 September 2022, Musgrave DCJ (the primary judge) dismissed a notice of motion seeking orders that the prosecution of Jason La Rocca (the Applicant) be permanently stayed.

2. The Applicant was charged with attempting to possess a commercial quantity of an unlawfully imported border controlled drug under ss 11.1(1) and 307.5(1) of the Criminal Code Act 1995 (Cth) (the Code).

3. Section 307.5 of the Code provides that:

“307.5   Possessing commercial quantities of unlawfully imported border controlled drugs or border controlled plants

(1)   A person commits an offence if:

(a)   the person possesses a substance; and

(b)   the substance was unlawfully imported; and

(c)   the substance is a border controlled drug or border controlled plant; and

(d)   the quantity possessed is a commercial quantity.

Penalty:  Imprisonment for life or 7,500 penalty units, or both.

(2)   Absolute liability applies to paragraphs (1)(b) and (d).

(3)   The fault element for paragraph (1)(c) is recklessness.

(4)   Subsection (1) does not apply if the person proves that he or she did not know that the border controlled drug or border controlled plant was unlawfully imported.

Note: A defendant bears a legal burden in relation to the matter in subsection (4) (see section 13.4).”

4. As can be seen, the offence is subject to a statutory defence under s 307.5(4) of the Code. In order successfully to raise that defence, a person in possession of or attempting to possess an unlawfully imported commercial quantity of a border controlled drug must prove, on the balance of probabilities, that he or she did not know that the border controlled drug was unlawfully imported.

5. The basis for the stay application in the present case was a particular action of the officer in charge of the investigation which led to the Applicant being apprehended and charged (the impugned conduct). That action had the effect of depriving the Applicant of his ability to seek to take advantage of the statutory defence under sub–s 307.5(4) of the Code.

6. The impugned conduct involved the officer affixing a prominent Singapore Airlines label to one of two boxes which formed part of a consignment imported from Singapore that was intercepted and inspected by the Australian Border Force (ABF), as explained more fully below. That label, as the officer ultimately accepted under cross examination, made it “painstakingly obvious” to anyone seeing the box to which it had been affixed that its contents had been imported from abroad. A recipient of the box without that label may not have known its origin and, if he or she could establish that matter on the balance of probabilities, he or she would not be liable under s 307.5, even if the consignment of goods had in fact been imported from abroad and contained a commercial quantity of a border controlled drug.

7. Whether the Applicant could still be liable for, or could subsequently be charged with, some other offence relating to possession of a commercial quantity of drugs, even if the current proceedings were permanently stayed, was not a matter before the Court.

8. It is desirable to set out the background facts in a little more detail.

Factual Context

9. On 30 August 2017, the ABF intercepted a palette which was affixed with an air waybill marked to an address in Bradbury NSW. The palette contained, among other things, three boxes of candles from a Singapore Airlines flight which presumptive testing suggested contained 3,4-Methyl​enedioxy​methamphetamine (MDMA). The ABF “Receipt for Goods” form, completed on the same day, recorded an air waybill number.

10. Australian Federal Police officers subsequently took custody of the consignment.

11. The consignment was then provided to the NSW Police for further investigation on 11 September 2017. The New South Wales Police determined that of the 231 candles contained in the three boxes, 66 contained concealed MDMA which had a net weight of around 14.69kgs.

12. There was no evidence before the Court, and the Crown Case Statement contained no detail, as to the appearance of the boxes upon their arrival in Australia. In particular, there was no evidence that the boxes, when they originally arrived in Australia as part of a larger consignment of goods, had any markings indicating that they emanated from Singapore or anywhere outside of Australia (although that was the objective fact).

13. Although the existence of an air waybill in relation to the boxes may be inferred from the ABF Receipt for Goods form referred to at [9] above, there was no evidence as to whether the boxes originally had had an air waybill physically attached to them nor as to what the contents of any air waybill may have indicated as to the point of origin of the consignment, even if an air waybill had been physically attached to the boxes.

14. A controlled operation authority was issued on 13 September 2017 pursuant to the Law Enforcement (Controlled Operations) Act 1997 (NSW) (Controlled Operations Act).

15. Section 13(a) of the Controlled Operations Act authorises each law enforcement participant to engage in the “controlled activities” specified in the authority in respect of the law enforcement participants. The controlled activities specified in the authority did not extend to the impugned conduct described more fully below.

16. Due to the number of candles which had been removed from the original three boxes for investigation and for the purposes of orchestrating a controlled delivery, 132 of the candles were re-packaged into two boxes. In this process, as noted above, the officer in charge affixed a prominent, coloured Singapore Airlines label with an air waybill number written on it to one of the two boxes alongside Australia Post labels which bore the Bradbury delivery address. The officer agreed under cross examination that the Singapore Airlines label was a new element in the appearance of the box compared to how he had first seen it.

17. On 14 September 2017, the two boxes were delivered to the Bradbury address.

18. The delivery of the two boxes to the Bradbury address formed part of the controlled delivery. According to the Crown Case Statement, the boxes were collected at about 7.00pm the following day from the Bradbury address in a car containing two males, one of whom was said to be the Applicant. It was as a result of this delivery that the boxes were said to have come into the Applicant’s possession.

19. Following a detour to an address in Yagoona, a further detour to the Applicant’s residence and a stop at Kmart Broadway, the Applicant was observed ultimately unloading the boxes from a vehicle onto a porter’s trolley at the Star Casino. The boxes were then delivered to a hotel room which had been booked by the Applicant’s co-accused, Mr Molina.

20. The Applicant was captured on CCTV leaving the hotel room on several occasions. On one occasion, he left with plastic bags, which the Crown alleged contained the candles, and on another, with a black suitcase that he loaded into Mr Molina’s vehicle and which contained candles when Mr Molina was later arrested.

21. At around 5.00am on 16 September 2017, the Applicant returned to the hotel room where he was arrested by police officers who were executing a search warrant. During the search, the police found several items, including a product tag and other related documents for the black suitcase alongside a handwritten note bearing the Bradbury address.

The stay application

22. The fact that it was the officer in charge of the investigation who had affixed the Singapore Airlines label to one of the two boxes that were delivered to the Bradbury address and then taken on to the Star Casino first emerged in a voir dire. That discovery led to the stay application during which the officer gave evidence and was cross examined.

23. The primary judge found that the officer “affixed the label to the package, thinking it was necessary to provide the airway bill number as a link to the ultimate delivery address” and that he was “was trying to make the parcel look as it would have done, but for the difficulties in its reconstruction and the fact that only two parcels were delivered.” In his statement, the officer had said that “[a]s part of the operation it was also imperative the delivery was viable and realistic.”

24. The vice of the officer’s actions was that, as a result of the interference with the appearance of the boxes by the affixing of the Singapore Airlines label, it was made impossible for the Applicant to contend that he did not appreciate that the consignment was unlawfully imported. The Crown Case Statement contained no other evidence which bore upon the Applicant’s knowledge as to the point of origin of the goods contained in the two boxes, and Ms Callan SC, senior counsel for the Crown, confirmed in the course of argument on the appeal that there was no such evidence.

25. The possibility of the Applicant raising a defence of ignorance as to the foreign origin of the goods was rendered practically futile because of the obvious inference that would arise from the presence of the Singapore Airlines label and the inconsistency of this inference with a position of ignorance as to the origin of the consignment, namely a place outside Australia.

26. The officer’s conduct was thus said to have subjected the Applicant to a forensic disadvantage which, critically, the Crown conceded was incurable. The primary judge agreed, going so far as to observe that “the fact of the label means the accused cannot raise the statutory defence”. Her Honour held that the disadvantage could not be cured “by direction, exclusion of evidence or quarantining areas of examination”.

27. Her Honour also found, however, that the officer’s acts were “not a deliberate or reckless disregard of legal requirements” but “were a result of inexperience on his part and a lack of diligence and sophistication in the transfer, deconstruction [of the consignment] and reconstruction by the multiple agencies”.

28. Notwithstanding the primary judge’s finding that the impugned conduct had deprived the Applicant of the opportunity to seek to make out the statutory defence, her Honour was not satisfied that the administration of justice would be brought into disrepute if the proceedings were not stayed.

29. After referring to passages from Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53 (Strickland), to which I shall return, the primary judge’s dispositive reasoning was as follows:

“Whilst not limiting what may ground a stay, Strickland clearly affirms the principle which has been repeatedly stated by the courts, which is that [100]:

‘a permanent stay of a criminal prosecution is an extraordinary step, which will very rarely be justified’.

The process which must be undertaken by this Court is, therefore, twofold and aligns with issues raised on this application. I repeat them here:

(1)   First, what was the nature of the officer's conduct and,

(2)   Second, what is the relevance of that conduct, that is, was it such

that it is necessary that proceedings be stayed to prevent the administration of justice falling into disrepute.

This matter involves an investigating officer deliberately changing the appearance of a consignment in the course of a controlled delivery. The alteration was done with the intention of making the package look real in the context of the reconstruction of a package as part of a controlled delivery. The complaint arises not simply from the fact a label was placed on the package. If one had originally been there or, indeed, any reference to overseas origin, there could be no complaint at all. The label was, however, (based on the evidence before me) placed on the package in the absence of any real inquiry about how it had looked, or regard being had to the effect on the accused.

The acts of the investigative officer were, however, not a deliberate or reckless disregard of legal requirements, rather, I accept they were a result of inexperience on his part and a lack of diligence and sophistication in the transfer, deconstruction and reconstruction by the multiple agencies involved.

What flowed from the act of the officer was to create a carton, which appeared on the face of it to have been imported. That carton was then delivered to an address, which the accused attended. It is the Crown case that he picked up the carton and later examined it in the hotel room. It is the Crown case that it is at the point of collection, after the label had been placed on it, that is, when he took the carton from the delivery address, that he committed the offence of attempting to take possession of a prohibited substance.

The defence submitted that the decision of Ridgeway v R (1995) 184 CLR 19 had no relevance as it was not considering the balancing exercise required by the Court and, as already referred to - the adoption by the plurality in Strickland and the statements of the Court in Moti that ‘decided cases should not be read as attempting to chart the boundaries of abuse of process’.

Ridgeway is, however, relevant in determining whether the officer’s act constitutes a breach that brings the administration of justice into disrepute and if it is one that cannot be condoned by this Court. Ridgeway draws a distinction between conduct that procures the offence and conduct that amounts to an opportunity. The former may well be viewed as a serious injustice. The latter was held in Ridgeway, that is, in cases of mere opportunity, that the accused person is fairly regarded as wholly responsible for his own actions. That is, that is not productive of serious injustice, and this is relevant on my determination of whether the officer's act grounds the permanent stay in these proceedings.

Taking all of the circumstances into account, I am not satisfied that the officer's act and the consequences of it are such that a trial in this matter would bring the administration of justice into disrepute. The fact of the label means the accused cannot raise the statutory defence. However, this was not the deliberate or intended consequence of the officer's act. Further, the potential unfairness only crystallised when the accused took the opportunity afforded to him of taking possession of the box after it had been delivered.”

The last sentence of this passage and, in particular, her Honour’s use of the word “opportunity” appears to tie it to her reference to Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66 (Ridgeway) in the previous paragraph. As will be seen, the judgment of Gaudron J in that case addresses situations in which “police or other law enforcement agencies merely provide the opportunity for the commission of the crime”: see [51] below.

Application for leave to appeal

30. The Applicant seeks leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) on the following three grounds:

• that the primary judge’s discretion miscarried because her Honour took into account an irrelevant consideration, namely, that “the potential unfairness … only crystallised when [the Applicant] took the opportunity afforded to him of taking possession of the box”;

• that the primary judge erred in finding that an absence of intention on the part of the officer in charge to bring about the consequences of depriving the Applicant of an opportunity to raise a statutory defence meant that the proceedings should not be stayed; and

• that the decision of the primary judge to refuse the application for a permanent stay was not one reasonably open to her.

31. Given that a decision to refuse or grant an application for a permanent stay is interlocutory and discretionary in nature, the Applicant accepted that error must be established in the House v The King (1936) 55 CLR 499; [1936] HCA 40 sense before an appellate court may intervene.

32. For the reasons given below, leave to appeal should be granted, the appeal allowed and a permanent stay of the proceedings ordered.

33. It is first desirable to identify the applicable principles of law and leading authorities relating to the grant of a permanent stay of criminal proceedings.

Applicable principles and authorities

34. The following principles or statements of authority relating to the grant of a permanent stay of a criminal prosecution appear to be uncontroversial:

1. the remedy is an extraordinary one, only to be given in exceptional or extreme circumstances: R v Glennon (1992) 173 CLR 592 at 605; [1992] HCA 16 (Glennon); Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 at [33]-[35] (Dupas); Strickland at [166];

2. such a description recognises the powerful social imperative for those who are charged with criminal offences to be brought to trial: Strickland at [106], see also at [166]-[167], [262];

3. notwithstanding this, the categories or circumstances in which the exceptional remedy of a permanent stay of criminal proceedings may be granted are not and should not be closed: Strickland at [99];

4. there is no “definitive category” of extreme cases: Dupas at [35];

5. each case accordingly must be decided according to its own facts: Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 (Moti) at [60]; Strickland at [99], [246], [261];

6. a permanent stay of criminal proceedings may be appropriate where to refuse such a remedy would bring the administration of justice into disrepute: Rogers v The Queen (1994) 181 CLR 251 at 286; [1994] HCA 42; Moti at [10];

7. the administration of justice may be brought into disrepute in a number of different ways;

8. one example which may warrant a permanent stay is the toleration of an unfair trial where there is a fundamental defect which goes to the root of the trial “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”: Barton v The Queen (1980) 147 CLR 75 at 111; [1980] HCA 48; Jago v District Court (NSW) (1989) 168 CLR 23 at 34; [1989] HCA 46; Glennon at 605-606; Dupas at [35];

9. other examples include where the manner in which the case was developed and brought:

• was contrary to basic tenets of the Australian criminal justice system as may be embodied in statute: Strickland at [261], see also at [186]-[187];

• was contrary to the rule of law: R v Horseferry Road Magistrates’ Court; ex parte Bennett [1994] 1 AC 42 at 62, 67; R v Grant [2009] 2 SCR 353 at [67];

• was otherwise corrosive of the “trust reposed constitutionally in the courts”: Moti at [57]; or

• presented a defect in process “so profound as to offend the integrity and functions of the court as such”: Strickland at [106].

10. considerations beyond the immediate trial may bear upon confidence in the administration of justice: Strickland at [270]; Ridgeway at 75, 77-78, 86-87, 92;

11. the administration of justice may be brought into disrepute where a miscarriage of justice would be the result of a failure to grant a permanent stay of proceedings: Glennon at 616, 624;

12. the administration of justice may be brought into disrepute irrespective of whether the conduct affecting proceedings is deliberate or reckless, and the grant of a permanent stay of proceedings is not confined to cases of deliberate and knowing misconduct nor dependent upon the initial motivation or purpose of the offending party: Truong v The Queen (2004) 223 CLR 122; [2004] HCA 10 at [135]; Strickland at [99];

13. the administration of justice will not necessarily be brought into disrepute, however, where prejudice to an accused may be cured by, for example, directions to a jury or undertakings by prosecuting authorities, or where the prejudice is of a minor or venial nature: Strickland at [100].

35. Many of these principles are illustrated by the decision in Strickland upon which much of the argument in the present case centred.

Strickland

36. In Strickland, a majority of the High Court ordered that the prosecution of the Appellants be permanently stayed on the basis that that unlawful conduct by the Australian Crime Commission (ACC) gave rise to a defect in the trial process which, if the prosecution were allowed, would permit an abuse of process and bring the administration of justice into disrepute.

37. The Appellants were compulsorily examined by the ACC in relation to allegations of financial crime. This was despite those allegations not being the subject of a formal ACC investigation and instead, having been referred to the AFP for investigation. The Appellants had declined to participate in a cautioned record of interview with the AFP but nonetheless, AFP officers watched the Appellants’ examination by an ACC officer without their presence being disclosed. After the examinations, orders were made by the ACC for the dissemination of the examination material to the AFP. Subsequently, the Appellants were charged with offences under Commonwealth and Victorian law.

38. The High Court unanimously found that the conduct of the ACC was unlawful in that the Appellants were not the subject of a formal investigation and thus, their examination for the sole purpose of aiding the AFP was outside the ACC’s statutory authority: [74] (Kiefel CJ, Bell and Nettle JJ), [128]-[130] (Gageler J), [176] (Keane J), [226]-[227] (Gordon J), [274] (Edelman J).

39. The plurality (Kiefel CJ, Bell and Nettle JJ) held that this unlawful conduct meant the prosecution derived a forensic advantage in that the appellants were compelled to answer questions they had lawfully declined to answer. Furthermore, the Appellants were subjected to a forensic disadvantage in that they were locked into a version of events from which they could not then credibly depart at trial: [75]. This disadvantage was incurable, unless the entire product of the examination was destroyed, and a new investigation commenced separate from every previously involved investigator or prosecutor: Edelman J at [292]. It was otherwise impossible to exclude evidence derived from the examinations or to completely assess the extent to which the content of the examinations had informed the AFP’s decision to prosecute: [84]-[85].

40. In determining whether this incurable forensic disadvantage supplied grounds for ordering a permanent stay of the prosecution, the plurality said the following with respect to the relevance of the state of mind of the ACC examiner:

“[99]   Further, although in previous cases regarding unlawful examination and dissemination of examination product the courts' concerns regarding the administration of justice falling into disrepute have focussed on deliberate or advertent reckless disregard of legal requirements, nothing in previous authority suggests or should be taken to imply that abjectly insouciant, wide-ranging disregard of the requirements of the ACC Act of the kind that occurred in the present cases may not also bring the administration of justice into disrepute … As Kirby J aptly summarised the position in Truong v The Queen:

‘relief is not confined to cases of deliberate and knowing misconduct, although that may be sufficient to enliven the jurisdiction. It extends to serious cases where, whatever the initial motivation or purpose of the offending party, and whether deliberate, reckless or seriously negligent, the result is one which the courts, exercising the judicial power, cannot tolerate or be part of.’

[100]   No doubt, society and therefore the law ordinarily looks more askance on instances of deliberate or advertent reckless disregard of a duty or obligation than upon the accidents of incompetence. As a rule, the former are conceived of as entailing greater moral culpability and for that reason their condonation is conceived of as more likely to bring the administration of justice into disrepute. But ultimately it is a question of degree which substantially depends upon the nature of the duty or obligation. If a duty or obligation is of no more than peripheral significance, condonation of its breach, even of an intentional breach, may appear justified in the interests of relatively more pressing considerations of justice. The power to stay proceedings is not available to cure venial irregularities. But if, as here, the duty or obligation is of a kind that goes to the very root of the administration of justice, condonation of its breach will bring the administration of justice into disrepute regardless of the culprit's mentality. Ultimately, these appeals turn on that distinction.”

41. At [101], their Honours reflected upon the invocation of a power by the ACC “for a purpose other than the specific, identified purpose, or that otherwise does not accord strictly with the statute” and described this as flouting the will of the Parliament as expressed through the statute. Their Honours continued that this was:

“an unlawful infraction of the common law right to silence that cuts deep against the grain of the accusatorial nature of the criminal justice system. It follows that, whether such an unlawful infraction of the will of the Parliament and the right to silence is intentional, or the result of advertent recklessness, or, as here, the consequence of grossly negligent abrogation of statutory responsibilities, its condonation is apt to bring the administration of justice into disrepute.”

42. Importantly and consistent with the proposition noted above, namely that considerations beyond the immediate trial may bear upon confidence in the administration of justice, the plurality made the point that to condone a “grossly negligent disregard of statutory protections and fundamental rights … would be to encourage further negligent infractions of the strict statutory requirements”: at [107].

43. Keane J, who agreed with the reasons of the plurality, eschewed any distinction between the quality of the conduct that had occasioned the application for a stay, that is to say whether it had been deliberate and reckless or merely negligent or incompetent. His Honour said that:

“[178]   The search for an appropriate epithet to describe the conduct of Sage (or that of the ACC more broadly) should not distract from the real issue presented by the third category of abuse of process in this case: whether the disregard of the requirements of the Act by Sage and the ACC was such that the administration of justice would be brought into disrepute if the courts were to allow the prosecutions to proceed.

…

[180]   It may be accepted that, for some kinds of criminal offences, a lack of understanding by a person of certain matters may preclude a finding of recklessness on the part of that person. But here the issue is whether it would bring the work of the courts into disrepute if they were to facilitate a proceeding pursued in defiance of the legislative will by an agency of the executive government. In this context, there is no reason to draw a distinction between a deliberate or reckless disregard of the requirements of the Act by agents of the executive government on the one hand, and an incompetent disregard of the law on the other. In either case, the disregard of the law leads to an episode of lawlessness apt to defeat the purpose of the Act.”

44. Keane J devoted a significant part of his judgment to a discussion of Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 (Lee). At [186] of his judgment in Strickland, but speaking of the result in Lee, Keane J said (omitting footnotes and emphasis added):

“it was held that "[w]hat occurred ... affected this criminal trial in a fundamental respect, because it altered the position of the prosecution vis-à-vis the accused." For this alteration in the respective positions of accuser and accused at trial there was no legislative authority. The alteration occurred in defiance of the legislation. As the Court in Lee (No 2) explained:

‘Indeed, [the alteration] occurred contrary to the evident purpose of [the analogue to s 25A(9)], directed to protecting the fair trial of examined persons.’”

45. As I will point out, the conduct of the officer in charge in the present case, in affixing the Singapore Airlines label to one of the boxes containing the consignment, similarly altered the position of the prosecution vis-à-vis the Applicant.

46. It is convenient at this point also to make reference to the High Court’s decision in Ridgeway, the significance of which was in issue before the primary judge.

Ridgeway

47. In Ridgeway, a majority of the High Court, on different grounds, held that the unlawful conduct of police should have given rise to a stay of proceedings.

48. The Appellant was charged with a Commonwealth offence relating to his possession of illegally imported heroin. The heroin had been the subject of a controlled importation coordinated by the AFP who were assisted by a Malaysian police informant and the Malaysian police. It was common ground that the police had either counselled or were prepared to aid and abet the illegal importation of the heroin by the Malaysian police officer and informant.

49. The High Court unanimously rejected the existence of a defence of police entrapment in Australia but in doing so, made several comments with respect to the effect of unlawful police conduct on the exercise of the Court’s discretion to exclude evidence on public policy grounds and to stay proceedings.

50. The plurality comprising Mason CJ, Deane and Dawson JJ held that the evidence arising from the police’s unlawful activity should have been excluded as a matter of discretion consistent with Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22. The result of this was that the proceedings should have been stayed but on the basis that, because all the evidence tending to prove the elements of the offence should have been excluded, the proceedings were an abuse of process as they would have inevitably failed.

51. Gaudron J considered the extent to which police “entrapment” may constitute an abuse of process warranting an exercise of the Court’s discretion permanently to stay criminal proceedings. Her Honour drew a distinction between conduct of the authorities that, in effect, caused the offence in question and conduct which merely provided the opportunity for the offence to occur. Her Honour’s reasoning at 77 is important for present purposes because, as shall be seen, the primary judge in the present case appeared attracted to this distinction:

“Cases involving offences committed as a result of the illegal acts of law enforcement agents may conveniently be contrasted with those … in which police or other law enforcement agents merely provide the opportunity for the commission of crime. In cases of "mere opportunity", the accused person is fairly regarded as wholly responsible for his own actions. And that is so even if there is some illegality associated with the opportunity provided, as, for example, that involved in the purchase of contraband where it is clear that it is generally available to all who wish to purchase it. But in cases which go beyond the provision of mere opportunity, where the offence results from the illegal actions of those whose duty it is to uphold the law, it is they who, in a real sense, are responsible for its commission, not the accused. In such circumstances the accused and society in general may well view prosecution as a serious injustice.

But what is more important is that the administration of justice is inevitably brought into question, and public confidence in the courts is necessarily diminished, where the illegal actions of law enforcement agents culminate in the prosecution of an offence which results from their own criminal acts. Public confidence could not be maintained if, in those circumstances, the courts were to allow themselves to be used to effectuate the illegal stratagems of law enforcement agents or persons acting on their behalf.

So far as public confidence in the administration of justice is concerned, the position is even worse if, as is usually the case, the law enforcement agents or those acting on their behalf are not brought to account for their criminal acts. In cases of that kind, the courts are brought into greater disrepute because they give the appearance of sanctioning illegality. And that appearance is given even if criticism is made of the police conduct involved. Indeed, criticism may well appear to be mere humbug and, itself, lead to a further erosion of confidence in the courts.”

Consideration

52. The three grounds of appeal have been noted at [30] above. They may conveniently be considered together.

53. The kernel of the primary judge’s reasoning was set out in the following passage from her judgment (although it must of course be read in its fuller context which has been set out at [29] above):

“Taking all of the circumstances into account, I am not satisfied that the officer’s act and the consequences of it are such that a trial in this matter would bring the administration of justice into disrepute. The fact of the label means the accused cannot raise the statutory defence. However, this was not the deliberate or intended consequence of the officer’s act. Further, the potential unfairness only crystallised when the accused took the opportunity afforded to him of taking possession of the box after it had been delivered.”

54. The final sentence of this dispositive paragraph clearly relates to the distinction that Gaudron J had sought to draw in Ridgeway and which the primary judge had referred to earlier in her reasons. But, however apposite the distinction may have been in Ridgeway (and it did not command the support of a majority of the Court in that decision), it was not relevant on the facts of the present case. The taking into account of that irrelevant consideration vitiated the primary judge’s exercise of discretion.

55. The unfairness to the Applicant was the direct product of the deliberate alteration by the officer in charge of the appearance of one of the boxes containing the consignment of concealed drugs. This had a result akin to that in Lee and, on Keane J’s analysis, in Strickland, namely "alter[ing] the position of the prosecution vis-à-vis the accused”. It subverted the intention of the Parliament in providing for a defence in s 307.5(4) of the Code, namely to afford an opportunity to a person caught in possession of (or attempting to possess a) commercial quantity of drugs to raise a defence as to ignorance of their foreign origin.

56. Just as there will be a substantial miscarriage of justice where an accused has lost a chance which was fairly open to him of being acquitted, so too in the present case, the Applicant forever lost that chance as a result of the conduct of the officer in charge of the investigation who altered the appearance of one of the boxes in a way that destroyed the possibility of raising the statutory defence. Any evidence that he may otherwise have given to the effect that he did not know, when he took possession of the boxes, of the origin of their contents would have been immediately defeated or fatally undermined by what was implied by the obvious Singapore Airlines label.

57. The deprivation of the opportunity to raise such a defence was not diminished in its seriousness by the timing of its “crystallisation”, to use the term employed by the primary judge in the final sentence of the dispositive paragraph of her reasons. In circumstances where it was no part of the Crown case that the Applicant in fact had some other prior source of knowledge as to the point of origin of the goods in question and appreciated that they had been imported from overseas, the officer’s conduct in altering the appearance of the box could not be dismissed as “venial” or inconsequential. As the Crown conceded, and was a matter of great significance, this was not a forensic disadvantage that it was suggested could be cured by directions or undertakings. The egg could not be unscrambled: Strickland at [292].

58. The primary judge was also strongly swayed by her conclusion that the concededly incurable disadvantage to the Applicant was not caused by any deliberate or intentional conduct on the part of the officer in charge. To emphasise that point, as her Honour did with her use of the word “However” and her identification of this matter as her first (of two) reasons given in support of the ultimate refusal of the stay, was, with respect, to overlook the very clear statements by the plurality and Keane J in Strickland to the effect that deliberate, intentional or reckless misconduct was not essential in order for a permanent stay to be warranted. That is perhaps particularly so when the consequences of the conduct concerned were potentially so profound.

59. If unlawfully obtaining evidence of the truth is problematic, as it was held to be in Strickland, the alteration of the appearance of evidence with concededly material consequences for the availability of a potential defence is even more problematic. For a court to entertain criminal proceedings in this context would be apt to bring the administration of justice into disrepute.

60. True it is that the existence of deliberate or reckless conduct will be more obviously corrosive of the proper repute in which the administration of justice should be held and will weigh heavily in a court’s earnest consideration whether to grant a permanent stay of criminal proceedings: Strickland at [100]. But less egregious, although still unlawful and negligent or incompetent conduct, with serious consequences for an accused may equally warrant the granting of a permanent stay of criminal proceedings.

61. Whilst it was relevant for the primary judge to have regard to the fact that the consequences of the officer’s conduct were neither deliberate nor intended, the seriousness of those consequences and the circumvention of the will of the legislature as a result of the officer’s actions diminished any significance that could be attached to the intention or state of mind of the officer.

62. Further to the taking into account of an irrelevant consideration noted at [54] above, in circumstances where the prejudice to the Applicant was conceded to be incurable in the context of a serious offence carrying a maximum sentence of life imprisonment and where it was the consequence of conduct which the primary judge held resulted from “inexperience” and “a lack of diligence” on the part of the officiating officer, in my opinion, the primary judge’s exercise of discretion miscarried and a permanent stay of proceedings should have been granted.

63. This conclusion is not the result of a mere difference of opinion with the primary judge. Any mere disagreement would not warrant interference with her Honours discretionary decision. Rather, it follows from a consideration of the authorities summarised above in light of the matters referred to in the previous paragraph. In short and with respect, the primary judge’s refusal to grant the stay was not one that was reasonably open to her on the extraordinary facts of the present case. The deliberate alteration of the appearance of evidence in a way directly relevant and material to the ability to establish a statutory defence is a matter that “goes to the very root of the administration of justice”: Strickland at [100].

64. It would, in my view, bring the administration of justice into disrepute to permit the Applicant to be tried in circumstances where he was practically deprived of the potential to raise a defence expressly provided for by the legislature but which was destroyed by the deliberate act of the investigating officer in altering the appearance of the consignment of goods.

Conclusion

65. For the above reasons, leave to appeal should be granted, the appeal allowed, the order dismissing the notice of motion for a permanent stay of proceedings should be set aside and, in lieu thereof, it should be ordered that the proceedings be permanently stayed.

66. DAVIES J: I agree with Bell CJ.

67. N ADAMS J: I agree with the orders proposed by Bell CJ for the reasons provided by his Honour, but I wish to make clear the underlying facts upon which that concurrence is based.

68. The statutory defence in s 307.5(4) of the Criminal Code Act 1995 (Cth) provides that a person will not have committed an offence contrary to s 307.5(1) if the person “proves”, relevantly, that he or she did not know that the border controlled drug was unlawfully imported. Although there may be cases in which an accused person could “prove” this lack of knowledge without giving evidence, ordinarily, he or she would have to enter the witness box and be subjected to cross-examination in order to do so.

69. The applicant did not put any material before the primary judge or this court to explain why, on the facts in this case, the forensic disadvantage he suffered was real as opposed to hypothetical. It is not difficult to identify cases in which even in the absence of any label confirming importation (such as that affixed by the police officer in this case) the statutory defence would not be available in any event. The circumstances in which the items are sent, received and packaged, as well as other evidence in the case, will often afford the Crown ample evidence to rebut such a defence, even in the absence of any obvious labels confirming the element of importation.

70. It was the applicant’s position on this appeal that an accused person cannot be required to identify any actual forensic disadvantage suffered in stay proceedings such as these if to do so would require him or her to foreshadow what their defence might be at trial. That submission had less force in this case given that the applicant ran a positive defence at his first trial. His conviction was the subject of a successful appeal to this court and a new trial was ordered: La Rocca v R [2021] NSWCCA 116. The applicant stood trial with his co-accused and both men ran a “cut throat defence”: they each alleged that they were the “innocent dupe” of the other (see at [65]-[76]). Although the co-offender gave evidence, the applicant did not, electing instead to call two witnesses to support his case.

71. It is undoubtedly correct that an accused person cannot be required to foreshadow his or her defence in order to identify the scope of an alleged forensic disadvantage relied upon to ground a stay. Rather, it remains a tactical decision for an accused person as to how much of their hand they wish to reveal in order to establish any alleged forensic disadvantage. But that decision is to be made in the context that it is the accused person who bears the onus of establishing that a stay should be granted.

72. Ultimately, it was not necessary for the applicant to indicate the scope of his alleged forensic disadvantage in this matter as the Crown conceded that he had suffered an incurable forensic disadvantage by the actions of police and not simply a theoretical one. It was in those circumstances that the primary judge concluded that the addition of the label “means the accused cannot raise the statutory defence”. My concurrence with the orders proposed by Bell CJ is based on the uncontested presumption that the applicant has in fact suffered an incurable forensic disadvantage as a result of the conduct of police.

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Amendments

13 March 2023 - Change made to solicitors for the respondent, corrected from Office of the Director of Public Prosecutions (NSW) to Commonwealth Director of Public Prosecutions.

Decision last updated: 13 March 2023