Massey v The Queen

[1995] HCATrans 249

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A5 of 1995

B e t w e e n -

RICHARD ERIC CHARLES MASSEY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
TOOHEY J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 23 AUGUST 1995, AT 12.34 PM

Copyright in the High Court of Australia

MR M.L. ABBOTT, QC:   If the Court pleases, I appear with my learned friend, MR G.R. ALGIE, for the applicant.  (instructed by C.B McDonough & Co)

MS W.J. ABRAHAM:   May it please the Court, I appear with my learned friend, MR S.K. McEWEN, for the respondent.  (instructed by P.J.L. Rofe, QC, Director of Public Prosecutions (South Australia))

BRENNAN CJ:   Mr Abbott.

MR ABBOTT:   This matter arises out of a judgment of the Full Court of South Australia and the judgment of the Chief Justice King is set out at page 23 and following of the application book.  Basically it is our submission that what the Full Court did not do was take into regard the test enunciated by this Court in Ridgeway which, of course, had not been decided at the time of the determination of this appeal by the Full Court.

GUMMOW J:   Ridgeway is all about admission of evidence.

MR ABBOTT:   Ridgeway also postulates a test in relation to police activity which results in the production of a crime and in our submission that is exactly what happened in this case.

BRENNAN CJ:   But Ridgeway is no authority for saying that any police activity that results in some generally causal sense in a crime is inadmissible.

MR ABBOTT:   No, certainly not.  But Ridgeway postulates the exercise that the court is bound to undertake to determine whether or not the evidence should or should not be excluded.

BRENNAN CJ:   And what do you say is the test which Ridgeway propounds for that purpose.

MR ABBOTT:   Page 56 of Ridgeway (1995) 129 ALR 41.

BRENNAN CJ:   We do not seem to have a copy of it, Mr Abbott  Was anything done about the provision of copies?

MR ABBOTT:   We have some copies.

BRENNAN CJ:   Thank you.  What page, Mr Abbott?

MR ABBOTT:   I take the Court to the two categories in Ridgeway set out at page 54, line 40. This Court spoke of:

The other category of case is where illegal police conduct is itself the principal offence to which the charged offence is ancillary or creates or itself constitutes an essential ingredient of the charged offence.

Then an example is given.  This Court then said:

In that category of case, the police illegality and the threat to the rule of law which it involves assume a particularly malignant aspect.

The test was then propounded at page 56 and the relevant part starts at line 30 because we say this is what, in fact, the Full Court of South Australia did and apropos of what the Full Court in Ridgeway did this Court said:

Examination of the judgments of Matheson J and Duggan J who constituted the majority in the Full Court discloses that their Honours placed disproportionate weight on the question of unfairness to the particular accused.  As should be clear from what has been written above, the question of unfairness to a particular accused is ordinarily of but peripheral importance in deciding whether evidence of an illegally procured offence should be excluded on public policy grounds.

That is what, in our submission, the Full Court did not consider.  I go on, omitting the next sentence:

The critical question was whether, in all the circumstances of the case, the considerations of public policy favouring exclusion of the evidence of the appellant’s offence, namely, the public interest in maintaining the integrity of the courts and of ensuring the observance of the law and minimum standards of propriety by those entrusted with powers of law enforcement, outweighed the obvious public interest in the conviction and punishment of the appellant of and for the crime against s.233B(1)(c) of the Act of which he was guilty.

In the case at Bar the Chief Justice found there was no impropriety at all.  He found their was no illegality.  He therefore never conducted a weighing exercise such as that adumbrated by this Court in Ridgeway’s Case.  And whether we call it Ridgeway’s Case or an extension of Bunning v Cross, in our submission, the principal error in respect of which we say special leave should be granted lies in his findings.  I take the Court to the application book at page 28 line 22 where he sets out the facts of the police illegality:

Police provided Starcevich ‑

I will not go into all the facts ‑

with $200 and arranged with Hunt to tell the appellant to collect it for the purpose of procuring the parcel of heroin.  The police had the appellant under surveillance and they hoped that he would procure the heroin from a supplier thereby leading the police to the supplier.  This did not eventuate.  The appellant’s evidence was that he gave the $200 to Hunt.

I add there that, in fact, Hunt was in gaol; the $200 was taken into gaol, Hunt provided the heroin and the applicant then thereafter transported it back to Starcevich.  So, the operation set up by the police did not quite go according to plan, but it was, nevertheless, an operation which was tainted by the police illegality in that the police breached section 31(1)(a) and section 41(a) of the Controlled Substances Act and I hand up for the Court’s consideration a list of potential offences committed by the police, together with the relevant sections of the Controlled Substances Act.  At the very least ‑ ‑ ‑

GUMMOW J:   Which two provisions?

MR ABBOTT:   The provisions, your Honour, are section 31 of the Controlled Substances Act and section 32.

BRENNAN CJ:   Where do we find those?

MR ABBOTT:   The annexed pages in the Controlled Substances Act, we have set out, appended to this first page, the relevant provisions of the Controlled Substances Act.

GUMMOW J:   Whereabouts in section 31?  It has various branches to it, which particular ‑ ‑ ‑

MR ABBOTT:   It is:

(1) A person shall not ‑

(a) knowingly have in his possession a drug of dependence or a prohibited substance ‑

and in section 32 ‑ ‑ ‑

GUMMOW J:   So that is 31(1)(a)?

MR ABBOTT:   Yes, 31(1)(a), section 32(1)(d):

(1) A person shall not knowingly ‑

.....

(d) take part in the sale, supply or administration of such a drug or substance to another person; 

and also (1)(e):

have such a drug or substance in his possession for the purposes of the sale, supply or administration ‑

and further, section 41, which provides accessorial liability which we have also appended as the last page in these extracts, provides that:

A person who ‑

(a) aids, abets, counsels or procures the commission of an offence against this Act; or

(b) solicitors or incites the commission of an offence against this Act, shall be guilty of an offence ‑

In our submission, this was clearly a case described in that reference at page 54 of Ridgeway:

where illegal police conduct is itself the principal offence to which the charged offence is ancillary or creates or itself constitutes an essential ingredient of the charged offence.

BRENNAN CJ:   Now, that is talking about the actus reus.

MR ABBOTT:   Yes.

BRENNAN CJ:   What was the actus reus on the part of the police which constituted the element of the offence with which the accused was convicted?

MR ABBOTT:   The accused was convicted of having in his possession ‑ knowingly taking part in the sale or supply of a drug of dependence and he took part in the sale or supply by virtue of the utilisation of the money and by using the contacts which the police had provided.

GUMMOW J:   So, that was 32(1)(c)?

MR ABBOTT:   Yes, 32(1)(c).

GUMMOW J:   And you say the police were within 32(1)(d) or (e), do you?

MR ABBOTT:   Yes, 32(1)(d) or (e) and the facts are relevant.  If we look at page 28 and following, the rest of the facts which are relevant are set out in the judgment of Justice Millhouse ‑ ‑ ‑

BRENNAN CJ:   Can I just delay you for a moment?  Coming back to those sections, 32, what did the police do which fell within 32(1)(d)?

MR ABBOTT:   They aided and abetted.  Pursuant to section 41, or counselled and procured ‑ ‑ ‑

BRENNAN CJ:   I understand that, but I am asking you what is the actus reus which the police committed which was an element of the offence with which the accused was convicted?

MR ABBOTT:   The provision of the money.

BRENNAN CJ:   Where does that fall into some proscribed act?

MR ABBOTT:   By provision of the money, they took part in the sale.  They provided the money for the purposes of the sale and may I refer the Court to the next page, 32(4):

Without limiting the generality of this section, a person takes part in the manufacture, production, sale, supply or administration of a drug of dependence or prohibited substance if ‑

.....

(b) he provides or arranges finance for any such step in that process ‑

So, we would say that the police, by providing the money and, indeed inciting the applicant to go into the purchase of heroin, or at least the delivery of heroin, created or at least went some way towards creating the offence.

BRENNAN CJ:   They gave him the opportunity.

MR ABBOTT:   They did more than the opportunity, with respect, your Honour.

BRENNAN CJ:   They offered him the means, if you wish, to commit the offence.

MR ABBOTT:   They did more than ‑ ‑ ‑

BRENNAN CJ:   But they did not, themselves, commit an element of his offence.

MR ABBOTT:   We would submit that they clearly did in that subsection (4)(b) specifically says that the police took part in the supply of the prohibited substance by providing the finance.

BRENNAN CJ:   Be it so.  His offence was not providing the finance; his offence was engaging in the sale, doing the things which he did.

MR ABBOTT:   No, his offence was taking part in the supply.

BRENNAN CJ:   That is right, doing what he ‑ ‑ ‑

MR ABBOTT:   The police also took part in the supply by providing finance.

BRENNAN CJ:   Took a different path, a different path.  In Ridgeway’s Case it was a question of the importation itself which was an element of Ridgeway’s offence.

MR ABBOTT:   I accept that, but this was clearly illegal police conduct which is either ancillary or created or constituted an essential ingredient of the charged offence.  They are alternatives of this Court and we would say that, even if your Honour is correct in saying that their conduct does not constitute an essential ingredient of the charged offence, it certainly is ancillary or created the charged offence.

GUMMOW J:   Are you saying that they both, in effect, are treated as having sold within (1)(c) because they both took steps that bring them within (4)?

MR ABBOTT:   Yes.

GUMMOW J:   Albeit different ones?

MR ABBOTT:   Yes.

GUMMOW J:   But you say they are sufficiently ancillary?

MR ABBOTT:   Sufficiently ancillary, yes.  Or created, depending on the interpretation.  In any event, if the Court is with me to that stage, it would follow that the Full Court was required to have conducted a balancing exercise such as Bunning v Cross and Ridgeway predicate, namely, assessing the objective illegality of the police on the one hand and the public policy considerations on the other.  The Full Court did not ever get to that position because the Full Court found no illegality; they found no impropriety; they never conducted the relevant exercise which, if my argument is accepted, they should have conducted.     I take the Court to the application book ‑ ‑ ‑

GUMMOW J:   Just before you do that, that formulation you rely on page 54 of Ridgeway, is that repeated elsewhere in the majority judgment?

MR ABBOTT:   To a greater or lesser extent at page 52, your Honour, the Court said ‑ ‑ ‑

GUMMOW J:   That is the same judgment.

MR ABBOTT:   Yes, line 15, page 52 ‑

GUMMOW J:   But, that is the same judgment.

MR ABBOTT:   I am sorry, I thought you meant is it repeated in ‑

GUMMOW J:   Is it repeated elsewhere in other majority judgments?

MR ABBOTT:   I think not in those terms but I do rely upon page 52 line 15 even though it be the same judgment because the Court observed there a most material matter, that is:

In a context where ancillary offences ‑ such as counselling, being knowingly concerned in, inducing, aiding, abetting and procuring ‑ exist, in one form or another, in all Australian jurisdictions and where no laws exist authorising law enforcement officers to encourage or participate in the commission of criminal offences in order to enable the apprehension and procure the conviction of those whom they believe to be involved in criminal activity, it is likely that conduct which intentionally procures the commission of a criminal offence by another will itself be criminal.

That, in our submission, is the case here.

BRENNAN CJ:   But, Mr Abbott, are you not misreading that paragraph on page 54?  There are two categories to which their Honours are there referring: 

The first category consists of cases in which the police conduct has induced an accused person to commit the offence which he or she has committed. 

Now, you were saying this is what happened in this case: 

In that category of case ‑

say their Honours ‑

the public interest in the conviction and punishment of those guilty of crime is likely to prevail over other considerations except in what we would hope to be the rare ‑

et cetera.  So, that is one category.

MR ABBOTT:   Yes.

BRENNAN CJ:   Then you come to the second category, which is the relevant one:

The other category of case is where illegal police conduct is itself the principal offence to which the charged offence is ancillary or creates or itself constitutes an essential ingredient of the charged offence.

MR ABBOTT:   It must be the conduct, with respect, which creates an essential ingredient of the charged offence.  The Court was there distinguishing between police conduct on the one hand and illegal police conduct on the other.

BRENNAN CJ:   But, where is the illegal police conduct here which “creates or itself constitutes an essential ingredient of the charged offence”?

MR ABBOTT:   The provision of $200 to purchase heroin, when combined with the aid and abet provisions and with ‑ ‑ ‑

BRENNAN CJ:   Forget the aid and abet ‑ that is in the first category.

MR ABBOTT:   Right. Section 32(4) provides that the police take part in the very offence with which this applicant is charged if they provide or arrange finance for any step.

BRENNAN CJ:   Be it so.  They are parties to it, if you like, but where is it that the conduct of the police itself creates the accused’s offence or is an essential ingredient of the accused’s offence?

MR ABBOTT:   I can only point to what the police did:  the provision of the $200; the setting up of the scheme whereby the girlfriend, Starcevich, and Hunt were to importune the applicant for the purchase and delivery of heroin and, as a result of which, the applicant took part in the supply of heroin.

TOOHEY J:   Mr Abbott, if you were to look at page 32 of the Chief Justice’s judgment at about line 19, what the Chief Justice says is that:

What is proved by admissible evidence, however, is that the appellant accepted an offer of an improper inducement from a prisoner and performed improper favours in exchange for it and that one of those favours was the delivery of a parcel of heroin.

None of those things ‑ while the police may have made some of those steps practicable, that does not involve the police in the commission of the offence unless you bring in your aiding and abetting provisions.

MR ABBOTT:   I notice my time is fast approaching ‑ we would refer the Court to page 40 where the facts are set out in the minority judgment in some greater detail and the Court will see that, at the bottom of page 39 line 33 there was at the most only a vague suspicion that the appellant was involved in drug offence or corruption and yet they then devised, at the top of page 40, a scheme to test him.  It is referred to in the appeal book at page 6 in the judgment of the judge at first instance as a form of integrity testing that they devised.  And so, they set up the test; they provided the parameters of the conduct and they then, in our submission, are stuck with the behaviour of their agents, whether the police intended the agents to behave that way or not.

In any event, our first, and indeed final submission, is that this was a case which required the Full Court to at least consider the police illegality against public policy considerations.  The Chief Justice, in his judgment, said that there was no impropriety.  At page 31 line 12:

Notwithstanding the propriety of the police conduct ‑

and at page 30, he said:

I do not think that the court should feel any need to express disapproval of the course of action taken by the police in the present case ‑

So there never was any weighing exercise of the type which Ridgeway and Bunning v Cross say should be undertaken.  What was done was an exercise in which questions of unfairness only were considered: unfairness, on the one hand to the applicant based on considerations of his subjective well-being.  If the Court pleases.

BRENNAN CJ:   Thank you, Mr Abbott.  Mr Abbott, are you seeking the remedy of a permanent stay or simply the allowing of the appeal on the basis of the wrongful admission of the evidence?

MR ABBOTT:   Allowing of the appeal on the basis of the wrongful admission of the evidence.

BRENNAN CJ:   The Court will adjourn at this stage and will resume at 2.15.

AT 12.58 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

BRENNAN CJ:   We need not trouble you, Ms Abraham. 

This case is clearly distinguishable from Ridgeway v The Queen (1995) 129 ALR 41. The conduct of the police did not create the offence actually committed by the applicant, nor did the police conduct itself constitute an essential ingredient of the applicant’s offence. In a ruling given by the trial judge on the voir dire, his Honour identified the conduct of the applicant which constituted the actus reus of his offence as being the transportation of $200 from one Starcevich to a prisoner, Hunt, and the subsequent transportation from Yatala Prison to Starcevich in the city of a substance that was proved to be heroin. The police conduct did not extend beyond providing the money to Starcevich which the applicant then used in committing the offence of taking part in the supply of heroin.

In these circumstances, the only question is whether the police conduct was of such grave illegality that the public interest in the conviction and punishment of the applicant was outweighed by other considerations demanding the exclusion of the evidence of the police conduct.  The prospect of establishing that proposition on appeal is not sufficiently substantial to justify a grant of special leave.  For those reasons, special leave is refused.

AT 2.15 PM THE MATTER WAS CONCLUDED