Nicholas v The Queen

Case [1998] HCA 9

HIGH COURT OF AUSTRALIA

BRENNAN CJ,
TOOHEY, GAUDRON, McHUGH, GUMMOW, KIRBY AND HAYNE JJ

NICHOLAS  APPELLANT

AND

THE QUEEN  RESPONDENT

Nicholas v The Queen (M60-1996) [1998] HCA 9
2 February 1998

ORDER

  1. Declare that s 15X of the Crimes Act 1914 (Cth) is a valid law of the Commonwealth.

  1. Remit the matter to the County Court of Victoria for further hearing according to law.

Representation:

J L Sher QC with S A Shirrefs for the appellant (instructed by Galbally & O'Bryan)

M S Weinberg QC with J G Morrish for the respondent (instructed by Commonwealth Director of Public Prosecutions)

Intervener:

G Griffith QC with M K Moshinsky and G R Kennett intervening on behalf of the Attorney-General for the Commonwealth (instructed by Australian Government Solicitor)

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Nicholas v The Queen

Constitutional law – Separation of judicial power of the Commonwealth – Legislative response to Ridgeway v The Queen – Whether Parliament usurping judicial power – Whether legislation impermissibly specific in application – Integrity of judicial process – Retrospective operation of statute.

Evidence – Importation of prohibited drugs – "Controlled delivery" by law enforcement officer – Rationale for Ridgeway discretion to exclude evidence – Public policy.

The Constitution, Ch III.

Crimes Act 1914 (Cth), s 15X.

Crimes Amendment (Controlled Operations) Act 1996 (Cth).

Customs Act 1901 (Cth), s 233B.

  1. BRENNAN CJ. The accused, David Michael Nicholas, was charged on indictment in the County Court of Victoria on four counts to which he pleaded not guilty. The first two counts alleged the commission of offences against s 233B of the Customs Act 1901 (Cth); the last two counts alleged offences against s 73(1) of the Drugs Poisons and Controlled Substances Act 1981 (Vic). The prohibited imports to which the Commonwealth offences allegedly related were heroin of a traffickable quantity which had been imported into Australia by Australian and Thai law enforcement officers in contravention of s 233B of the Customs Act.

  2. On 27 May 1996 Judge Crossley, in accordance with the judgment of this Court in Ridgeway v The Queen[1], granted an application on behalf of the accused that his trial on counts 1 and 2 be permanently stayed.  Subsequently the Parliament enacted the Crimes Amendment (Controlled Operations) Act 1996 (Cth) ("the Amending Act") which inserted Pt 1AB into the Crimes Act 1914 (Cth). That Act is intended to reverse the effect of this Court's decision in Ridgeway. On 5 August 1996 the prosecution applied to Judge Crossley to vacate the order permanently staying the trial of the accused on counts 1 and 2, basing the application solely upon the fact that the Amending Act had come into force since the making of the order of 27 May 1996. The cause pending in the County Court between the accused and the Crown was removed into this Court pursuant to s 40(1) of the Judiciary Act 1903…

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Nicholas v The Queen [1998] HCA 9
Case
[1998] HCA 9
Decision Date

CaseChat Overview and Summary

In *Nicholas v The Queen*, the High Court of Australia considered the constitutional validity of section 15X of the *Crimes Act 1914* (Cth). The case concerned the importation of prohibited drugs and the discretion of courts to exclude evidence obtained through the involvement of law enforcement officers in a "controlled delivery" operation. The accused argued that section 15X, which sought to alter the evidentiary rules established in *Ridgeway v The Queen*, represented an impermissible intrusion by Parliament into the judicial power of the Commonwealth and the integrity of the judicial process.

The central legal issue before the High Court was whether section 15X of the *Crimes Act 1914* (Cth) was a valid law of the Commonwealth, or if it unconstitutionally usurped the judicial power of the Commonwealth by interfering with the judicial process and directing courts on how to exercise their jurisdiction. This question arose in the context of the High Court's previous decision in *Ridgeway v The Queen*, which had established a public policy discretion for courts to exclude evidence where law enforcement officers were involved in the illegal importation of drugs as part of a controlled operation.

The Court reasoned that section 15X did not usurp judicial power but rather modified the common law rule of evidence that had been articulated in *Ridgeway*. The legislation was found to be a valid exercise of Parliament's legislative power to regulate the admissibility of evidence in federal prosecutions, particularly in response to a specific judicial decision. The Court distinguished between Parliament dictating the outcome of a case and Parliament altering the rules of evidence that courts must apply. By providing specific conditions under which evidence would not be rejected due to law enforcement conduct, Parliament was seen as defining the scope of the judicial discretion, not removing it entirely or directing a specific outcome.

The High Court declared that section 15X of the *Crimes Act 1914* (Cth) was a valid law of the Commonwealth. Consequently, the matter was remitted to the County Court of Victoria for further hearing in accordance with the law, including the application of section 15X.

Orders

Orders of the court

1.

Declare that s 15X of the Crimes Act 1914 (Cth) is a valid law of the Commonwealth.

2.

Remit the matter to the County Court of Victoria for further hearing according to law.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Division 3 of Pt 1AB, which is the division relevant to the present case, applies only to controlled operations that started before the commencement of Pt 1AB: s 15V(1). That Division covers prosecutions which were pending and which would otherwise have been affected by the judgment in Ridgeway at the time when Pt 1AB came into force. Division 3 affects the exercise of a trial judge's discretion to exclude evidence in a prosecution for an offence against s 233B or an associated offence[3]. The relevant provision is s 15X which reads as follows:[3] An "associated offence" in relation to s 233B of the Customs Act is defined to mean:"(i)an offence under section 236 or 237 of that Act that relates to the offence; or(ii)an offence under section 7A or subsection 86(1) of this Act that relates to the offence"."Evidence of illegal importation etc. of narcotic goods not to be rejected on ground of unlawful conduct by law enforcement officerIn determining, for the purposes of a prosecution for an offence against section 233B of the Customs Act 1901 or an associated offence, whether evidence that narcotic goods were imported into Australia in contravention of the Customs Act 1901 should be admitted, the fact that a law enforcement officer committed an offence in importing the narcotic goods, or in aiding, abetting, counselling, procuring, or being in any way knowingly concerned in, their importation is to be disregarded, if:(a)the law enforcement officer, when committing the offence, was acting in the course of duty for the purposes of a controlled operation; and(b) for the purposes of the operation:(i)the Australian Federal Police, by written request signed by one of its members and purported to be made in accordance with the Ministerial Agreement, asked a Regional Director for a State or Territory that the narcotic goods, while subject to the control of the Customs (within the meaning of the Customs Act 1901), be exempted from detailed scrutiny by officers of the Australian Customs Service; and(ii) the request for exemption was granted." In the Explanatory Memorandum which accompanied the Bill for the Amending Act, the purpose of s 15X was stated to be "to alter the rule of evidence laid down in Ridgeway v R (1995) 129 ALR 41, where certain circumstances relating to the involvement of law enforcement officers in the importation of narcotic goods in the course of a controlled operation can be shown to have existed". Counsel for the accused submits that s 15X is an invalid attempt by the Parliament to interfere with or derogate from the judicial power of the Commonwealth, to interfere with the judicial process and to direct a court as to the manner and outcome of the exercise of its jurisdiction.The operation and effect of s 15X To appreciate the effect of s 15X, it is necessary to go back to the principle which emerges from the judgments of this Court in Ridgeway[4]. Ridgeway had been convicted in the Supreme Court of South Australia of having in his possession without reasonable excuse a traffickable quantity of heroin to which s 233B of the Customs Act applied and which had been imported into Australia in contravention of that Act. He appealed against his conviction, contending that the trial judge ought to have stayed permanently the proceedings against him or ought to have excluded evidence of the importation on discretionary grounds. The discretion was said[5] to arise because the heroin had been illegally imported under the auspices of, and with the active involvement of, the Australian Federal Police so that it could be supplied to Ridgeway.[4] (1995) 184 CLR 19.[5] (1995) 184 CLR 19 at 25.

Decision

Reasons for decision

BRENNAN CJ (dissent) TOOHEY J GAUDRON J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: TOOHEY J, GAUDRON J

Counsel for the accused submits that s 15X is an invalid attempt by the Parliament to interfere with or derogate from the judicial power of the Commonwealth, to interfere with the judicial process and to direct a court as to the manner and outcome of the exercise of its jurisdiction.The operation and effect of s 15X To appreciate the effect of s 15X, it is necessary to go back to the principle which emerges from the judgments of this Court in Ridgeway[4]. Ridgeway had been convicted in the Supreme Court of South Australia of having in his possession without reasonable excuse a traffickable quantity of heroin to which s 233B of the Customs Act applied and which had been imported into Australia in contravention of that Act. He appealed against his conviction, contending that the trial judge ought to have stayed permanently the proceedings against him or ought to have excluded evidence of the importation on discretionary grounds. The discretion was said[5] to arise because the heroin had been illegally imported under the auspices of, and with the active involvement of, the Australian Federal Police so that it could be supplied to Ridgeway.[4] (1995) 184 CLR 19.[5] (1995) 184 CLR 19 at 25. Mason CJ, Deane and Dawson JJ noted[6] that: "The illegal importation of the heroin which members of the Australian Police Force organised and in which they were involved was the very conduct against which the legislative provision creating the offence of which the appellant was convicted was primarily directed."The factors warranting rejection of the evidence of importation on public policy grounds were found to be extremely strong. Their Honours identified those factors as "grave and calculated police criminality; the creation of an actual element of the charged offence; selective prosecution; absence of any real indication of official disapproval or retribution; the achievement of the objective of the criminal conduct if evidence be admitted". Toohey J and I each agreed[7] that evidence of the importation should have been excluded for substantially the same reasons as those advanced in the joint judgment. Gaudron J held that the proceedings ought to have been stayed because public confidence in the courts is necessarily diminished where the illegal actions of law enforcement agents culminate in the prosecution of an offence resulting from their own criminal acts. Such proceedings, her Honour held, were an abuse of process[8]. McHugh J dissented. Mason CJ, Deane and Dawson JJ favoured an order permanently staying the proceedings on the ground that, once evidence of illegal importation was excluded, the proceedings would inevitably fail[9]. Gaudron J also favoured a stay to remedy the abuse of process. Toohey J and I, holding that once the evidence was excluded, there was no evidence to support an element of the offence for which Ridgeway had been convicted, favoured an order substituting a verdict of acquittal for Ridgeway's conviction.[6] (1995) 184 CLR 19 at 42.[7] (1995) 184 CLR 19 at 64 and 53 respectively.[8] (1995) 184 CLR 19 at 77-78.[9] (1995) 184 CLR 19 at 43.