Phung v The Queen

[2002] HCATrans 538

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M11 of 2002

B e t w e e n -

QUOC KINH PHUNG

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 DECEMBER 2002, AT 10.00 AM

Copyright in the High Court of Australia

MR P.G. NASH, QC:   If the Court pleases, I appear with my learned friend, MR J.P. BRETT, for the applicant.  (instructed by Access Law)

MR J.D. McARDLE, QC:   If the Court pleases, I appear on behalf of the respondent with my learned friend, MR T.P. BURKE.  (instructed by Director of Public Prosecutions)

GLEESON CJ:   Yes, Mr Nash.

MR NASH:   If the Court pleases, two quick housekeeping matters.  Could I seek an extension of time in relation to the application that is about a month to six weeks ‑ ‑ ‑

GLEESON CJ:   Is that opposed, Mr McArdle?

MR McARDLE:   It is not consented to, your Honour, but I am unable to present any prejudice.

GLEESON CJ:   Yes, you have that extension.

MR NASH:   Could I also have permission to rely on the supplementary outline of submissions that was only filed in the Court yesterday that picks up a very small point.

McHUGH J:   It just refers to YSA.

MR NASH:   Yes.  Thirdly, if the Court would turn to the submissions, could I delete paragraphs 31 and 32 which appear at page 55 of the application book.  It is not proposed to rely on the argument set out in those two paragraphs.  At page 54 could I qualify what is said in paragraph 21.  At paragraph 21 there is a statement that, “It appears that the Court of Appeal accepted that this was the case”.  That is not strictly accurate.  It is clear that the Court of Appeal accepted what is set out in the first sentence of the paragraph but they specifically did not accept that that constituted a delegation.  This application is really a rerun in some ways of the application that was unsuccessful in the matter of Te v The Queen in which the ‑ ‑ ‑

GLEESON CJ:   In which the same counsel appeared.

MR NASH:   Same counsel, your Honour, different Bench – perhaps fortunately, perhaps unfortunately.  The Court there said it:

should not be taken as necessarily accepting the construction placed by the Court of Appeal upon section 51 –

The issue really here is a very simple one.  It is not merely a question of the interpretation of a section of a Victorian statute or the question of the interpretation of a particular authorisation.  Rather it involves the question as to the extent to which courts will help police the warning that Justice Brennan voiced in Ridgeway when he spoke of the dangers if controls were not exercised over parliamentary delegations or parliamentary authorisations of illegal activity.

The Court of Appeal has taken the view that the controls contained in section 51 should not be construed strictly.  It is, in our submission, a triumph at the moment of pragmatism over principle.  The arguments ‑ ‑ ‑

GLEESON CJ:   Excuse me, I am just trying to find section 51 again.  The instruction is at page 24, is that right?

MR NASH:   Yes, your Honour.  Our contention, if the Court pleases, is that what is authorised by section 51 is the commission of an offence which a person is instructed or authorised to commit by instructions from a senior sergeant or above, not an offence committed when carrying out instructions.  The distinction is one that the Court of Appeal refused to accept and refused to accept in Te and in doing so expressed the view that this legislation should not be construed narrowly.  It is our submission that legislation such as this needs to be construed narrowly.  Perhaps in reality the applicant’s arguments before this Court are best summarised by Justice Ormiston in paragraph 17 at page 29 of the application book, the first one being really that the legislation authorises a senior sergeant or above to authorise an offence.  It does not authorise generally a senior sergeant or above to dispense his subordinates generally from adherence to the law in respect of a particular police undercover operation.

GLEESON CJ:   This section contains an unusual, although not unique, use of the word “deeming”.

MR NASH:   The Court of Appeal has interpreted that as meaning “adjudged”.  We say, your Honour, that it makes little difference whether one treats it as an immunity from prosecution or an exemption from the law.  This really is a semantic rather than a substantive difference.  What is being authorised one way or another is for a police officer to do what would otherwise be an offence.

GLEESON CJ:   But the instruction on page 24 is merely an instruction to carry out inquiries and obtain necessary evidence.

MR NASH:   Yes, your Honour.  That really is the nub of our complaint.

GLEESON CJ:   That, I presume, is the kind of standing instruction that all police are under at all times.

MR NASH:   Yes.  The only thing that suggests any permission to break the law is the phrase, “pursuant to s.51 of the Drugs, Poisons and Controlled Substances Act”.

GLEESON CJ:   What about the expression, “Operation Quins”?  You would need to know, would you not, what Operation Quins involved before you could say one way or the other whether that was an instruction to carry out possibly illegal acts?  If Operation Quins, for example, involved infiltrating a drug network and operating for a time as an undercover supplier of drugs, then it would follow, would it not, that it was an instruction to do something that might be illegal?

MR NASH:   Yes, your Honour.  The case was argued in the Court of Appeal effectively on that basis.  There was no material before the trial judge or before the Court of Appeal on this question.

McHUGH J:   As to what, Mr Nash?  I thought there was evidence that Operation Quins was the police investigation into the drug activities of a number of persons related to a man named Diep.

MR NASH:   Yes, your Honour.  I was thinking in terms of the question his Honour asked me about the undercover – it is perhaps implicit that it is an undercover operation because there were two police operatives whose names were aliases rather than genuine names.

McHUGH J:   Brown and Peters.

MR NASH:   Yes, your Honour.  Our contention is that even if it is intended to authorise the commission of offences, and assuming that it is, it still leaves it to the operative to decide what offences shall be committed.  The effect of this is that the dispensing power exercised by Parliament delegated to a senior sergeant or above, the effect of it, the operation of it, is in fact determined by the actual policeman himself.  The pragmatic argument against the contention that specific offences need to be authorised is that a police officer may find himself in the position where he cannot obtain instructions in the height of an undercover operation and he has to, for example, go along with an offence which he has not been specifically authorised to commit.

McHUGH J:   Is your point that the sort of instruction that the legislature must be taken to have in mind is the sort of instruction which would have authorised the series of acts in relation to a person like Ridgeway selling drugs, to meet him at the airport and that this is just too general.  It is not a particular case.  It just uses this term “Operation Quins” and it does not authorise anything in particular.  It just said make inquiries in relation to this operation.

MR NASH:   Except for the reference to section 51, it could be just an ordinary standing instruction to all police officers.  On its face it has nothing to do with authorising the commission of an offence.

GLEESON CJ:   Let us suppose that a police officer was charged with an offence as a result of something done in the course of an undercover operation and the police officer wanted to rely on the immunity given by section 51.  Then it would not get the police officer home, would it, just to produce this instruction?  The police officer would also have to call evidence about what Operation Quins involved.

MR NASH:   And precisely what it involved, your Honour, not in general terms.

GLEESON CJ:   Do we know that?

MR NASH:   We know it was an undercover operation involving ‑ ‑ ‑

GLEESON CJ:   I understand that, but what I am interested in knowing is where a police officer would stand if prosecuted for an offence and the police officer sought to rely on section 51.  In order to engage the immunity given by section 51, he would have to do more than just produce that document, would he not?

MR NASH:   Yes, your Honour.  We say he would have to go a lot further than that.

GLEESON CJ:   What I want to know is:  do we know from the evidence how much further he could have gone?  In other words, is there evidence before the Court that would enable us to decide whether a particular police officer, if prosecuted for a particular offence, could engage the immunity in section 51?  In other words, what do we know about Operation Quins?

MR NASH:   Not enough to answer your Honour’s question.

GLEESON CJ:   That is a bit of a problem, is it not?

McHUGH J:   I suppose your answer has to be that, as a result of the decision in Te, these very general instructions are given and that is all that is tendered, and that was all that was done by the authorities in this particular case.  They just tendered the document and nothing else.

MR NASH:   In this case and in Te the Court of Appeal has said that an authority such as this is not to be construed with the strictness with which one construes a search warrant.

GLEESON CJ:   How did this issue come up in this case?

MR NASH:   At the trial the evidence of the police officers obtained pursuant to buying and selling, in a particular transaction buying drugs, pursuant to the authority.  It was sought to exclude the evidence on the ground that it involved illegal acts by the police officers.

GLEESON CJ:   Was there a voir dire hearing?

MR NASH:   I am not sure whether there was a voir dire – there was a voir dire and there was a ruling, your Honour.

McHUGH J:   It was prior to the jury being empanelled.

MR NASH:   Yes.  I was trying to remember that, your Honour.  The jury had been empanelled, I think, and there was a ruling by the trial judge that these authorities were sufficient to render the acts of the police officers not illegal, therefore no question of the exercise of the discretion in Bunning v Cross terms needed to be considered.

GLEESON CJ:   When the trial judge made that ruling, what, if any, information did the trial judge have about Operation Quins?

McHUGH J:   The instructions were exhibit 1 and I do not think he had anything else, did he?

MR NASH:   I was trying to remember, your Honour, but my recollection is the instructions were there and that was all that was there, as I understand it, at that time.  My learned friend Mr McArdle will correct me if I am wrong.

GLEESON CJ:   How did the trial judge know that what the police officers did had anything to do with Operation Quins?

MR NASH:   I do not think even that question – in the ruling, your Honour, all I can say is that there is no advertence whatsoever to what was the ambit of Operation Quins.

GLEESON CJ:   That sounds very odd because, just looking at the document, it might be thought that, assuming section 51 is given a broad construction, that document might or it might not confer the immunity granted by section 51, depending on exactly what was involved in Operation Quins.

MR NASH:   As I understand it, your Honour, that was not canvassed.

McHUGH J:   The hypothesis of the argument was that the evidence of the officers had been obtained in the course of engaging in illegal activity and that Ridgeway and Bunning v Cross should be applied to exclude the evidence of those tape recordings.  The trial judge’s and the prosecution’s answer was:  here is exhibit 1, the instructions which follows the form of Te.  End of story.

MR NASH:   I notice that my yellow light has come on.  May I quickly make one other point and that is that the thing that we are really concerned here about is the clear decision of the Court of Appeal, that a document such as this need not be construed with the same strictness as a search warrant.  Our concern is that this cuts right across the principle behind the decision in Hayden’s Case and that it raises a serious matter of public interest.  If the Court pleases, they are the submissions.

GLEESON CJ:   Your red light has not yet come on, Mr Nash, and I would like to ask you a question.  Is not the problem that I raised with you very similar to the problem that was encountered in the special leave application in Te?

MR NASH:   No, your Honour.  The one big difference here is that, if one leaves aside the issue as to is this a question of construing a particular document, this is a situation where there was no attempt or consideration of the discretion.  More significantly perhaps, the applicant here had in fact been tried, sentenced, had appealed and at the time of the ruling had actually served three years and five months of a five‑year sentence with a minimum of three, which was imposed both at the first trial and at the second trial.  So that in balancing the two public interests, that of convicting the guilty and enforcing the law against police officers or ensuring that police officers behave properly, the scales were weighed quite differently from the case of Te.  Assuming our interpretation of section 51 is correct, although he might not be convicted by reason of the exclusion of this evidence, he would not escape scot‑free; he has already served three and a half years.  That has to be a matter weighing up the gravity, seriousness of admission or non‑admission.

GLEESON CJ:   How do we know that Operation Quins did not involve the precise conduct that the police officer engaged in?  How do we know

there was not some document that says, “This is what Operation Quins requires you to do”?

MR NASH:   We do not, your Honour.  What we do know ‑ ‑ ‑

McHUGH J:   Can I suggest this to you.  Your grounds of appeal do not raise the issue which you can raise to get this issue argued indirectly.  Should not your ground of appeal be that the learned trial judge erred in considering the exclusion of this evidence by simply relying on this document?  In other words, he was asked to exclude this document on the ground that the detectives were engaged in illegal activities and the judge simply said the document is conclusive.  So the real question is whether or not he erred in taking that view without any other evidence, but your grounds of appeal do not seek to raise that.

MR NASH:   With respect, your Honour, if the Court were to be generous to us, we would certainly wish to seek leave to amend in that form.

GLEESON CJ:   Thank you, Mr Nash.  Yes, Mr McArdle.

MR McARDLE:   Your Honours, can I commence by taking your Honours to page 24 of the application book and in particular to footnote 6.  The Court will see there that:

There was no voir dire in relation to the applicant’s contention that these authorities were illegal or should otherwise lead to the staying of the proceedings –

There was no examination of the evidence, it would appear, by ‑ ‑ ‑

GLEESON CJ:   Let us come back to the question of how this issue arose at the trial.  The footnote goes on to say:

any information as to the particular operation came incidentally in the course of the trial when questions were directed to other issues.

What was the trial judge invited to rule on before the trial and what, if any, information did he have before him about Operation Quins?

MR McARDLE:   I am not sure what information he had.  The application book does not reveal that and, although I was in the appeal which was determined more than a year ago, I am afraid my memory does not allow me to tell the Court what the position is.  It would appear from the ruling it was an attack upon the document – that is to say, the section 51 certificate itself – made on behalf of the applicant in order to exercise a discretion in the applicant’s favour to have this evidence excluded because of illegality.

GLEESON CJ:   But on any view of the meaning and effect of section 51, you could not tell, could you, whether the immunity conferred by section 51 covered the conduct in question simply by looking at this document?

MR McARDLE:   No, your Honour, but it would rather depend upon how the voir dire was run.  The onus was on the applicant.  He had the carriage of the voir dire because the argument was that it was an illegality and it should be excluded in the exercise of his Honour’s discretion.

McHUGH J:   But, Mr McArdle, it seems to have been assumed for the purposes of the argument that he had made a prima facie case, that, apart from section 51, the evidence might be excluded under Bunning v Cross, but the judge’s answer was, as appears at page 17, that the written instructions were sufficient to answer the case.  So the real point was whether the judge should have exercised his discretion.  Is it not arguable that he misdirected himself because he just took the 51 instrument as conclusive of the question?

MR McARDLE:   Your Honours, with respect, we do not know.  It does not appear in the application book and, more importantly for these purposes, it is submitted that it was not something that was really ventilated in the Court of Appeal.

McHUGH J:   That is a different point, yes.

MR McARDLE:   So, with all respect, your Honours, this does not present a suitable vehicle for special leave decisions.

GLEESON CJ:   Maybe I am missing something, but would you agree that if this police officer had been prosecuted for an offence and he had sought to rely on the immunity conferred by section 51, it would not have been sufficient for him just to tender this document?  He would have to give the court some information about Operation Quins, would he not?

MR McARDLE:   It would depend really how the case was run.  For example, if it said, “You are involved in a heroin transaction”, as this case was about, and it was outside Quins, then the issue would become what the operation was about.  At some stage or another, yes, it would have to be part of the prosecution case, I would imagine.

GLEESON CJ:   But for all I know – and correct me if I am overlooking some evidence – Operation Quins was an investigation of illegal gambling.

MR McARDLE:   Your Honour will see at the same page of the application book, page 24, at the end of paragraph 5, his Honour says:

So far as can be gathered Operation Quins was a police investigation into the drug trafficking activities of a number of persons connected with one Diep.

GLEESON CJ:   The key words are “So far as can be gathered” and that is what the footnote relates to.  The point that is made in the footnote is that this is not information that emerged in the course of the challenge to the admissibility of the evidence of the police officer; this is information that you can pick up by looking at parts of the transcript of the trial in relation to other matters.  Is it the case that when the judge was invited to rule upon the admissibility of the evidence of this police officer, the judge was given no information about Operation Quins?

MR McARDLE:   I am unable to answer that question, your Honour.  His Honour’s ruling is in the application book.  It would appear that it was a direct attack upon the validity of the document by its terms in connection with section 51.

McHUGH J:   Except at the bottom of page 13 his Honour says:

The substance of Mr Lindner’s submission was that the evidence of Brown and Peters had been unlawfully obtained as it had been obtained by police officers Brown and Peters in the course of their engaging in criminal activity.  It was submitted on behalf of the accused that s.51 of the Drugs Poisons and Controlled Substances Act had not been complied with and the police officers were not protected –

et cetera, et cetera.  The judge looked at the instrument and said that was an answer, and he relied on Te’s Case.

GLEESON CJ:   It looks as though the submission he was dealing with is that at line 19 on page 14.  That was the argument he had before him:

It was submitted on behalf of the accused that the use of the words “a particular case” in the section required –

the nomination of a particular target or suspect.  That is the argument the trial judge was ‑ ‑ ‑

MR McARDLE:   Yes, and that was the argument that was advanced, amongst some other things, in the Court of Appeal.  It was the argument also, if my memory is correct, that was advanced in Te and there was an earlier case of Papoulias in which these certificates had been looked at by the Court of Criminal Appeal in Victoria as well.

GLEESON CJ:   So it looks as though the argument that I have been troubling Mr Nash and you with is one that was just not raised at all at the trial?

MR McARDLE:   Yes.  Your Honours, there was just a confrontation as to the terms of the certificate and how it fitted with section 51.

GLEESON CJ:   The argument seems to be that on the face of the certificate it could not possibly engage the immunity conferred by section 51.

MR McARDLE:   Yes, because the certificate was too vague.  It did not refer to a particular case, concerning which, we would submit, that the Court of Appeal was quite right.  There is a distinction that is obvious, it is submitted, between this sort of case and that, for example, of a warrant to arrest or a warrant to seize, because a warrant to seize interferes with a person’s rights.  Particularity would be required under the terms of that warrant.  The applicant in this case had no rights that were being interfered with.  He had no right to sell the heroin and he had no right to conduct his activities in peace and quiet without police investigation.  This instrument was directed towards an investigation of those matters, something quite different from search warrants or listening device warrants and similar which interfere with people’s rights.  So far as the particular case is concerned, because this is an investigative tool, the legislation should be ‑ and, it is submitted, was – correctly interpreted as one in which some width would have to be allowed.

McHUGH J:   That seems to me a dubious proposition.  You got a warning from Justice Gummow on the previous occasion in the special leave application in Te that the Court did not necessarily agree with the construction that the Court of Appeal has put on it.  I think the authorities are playing on very dangerous ground if they are going to rely on this particular type of authority.

MR McARDLE:   Your Honours, this case probably would have almost preceded the special leave application in Te.  It is of some antiquity.  The case went through the Court of Appeal on a different point and returned for retrial.

McHUGH J:   Yes, I understand.

MR McARDLE:   The other thing, your Honours, it is understood that the question of covert activities in the supervision is presently before the Standing Committees of Attorneys‑General in any event.  The other thing that we wish to point out to the Court in relation to this is that there are provisions throughout the State, and of course part of Commonwealth law, in relation to covert activities.  They vary; they vary immensely.  This one has a long history, commencing with attempts to suppress illegal totalisers or SP bookmaking.

McHUGH J:   Back in the days of John Wren.

MR McARDLE:   The first legislation was in the early part of the last century, yes, certainly.  I think it was directed towards totalisers.  They are crimes which are not victimless of course, but they are ones in which the victims are unlikely to complain.  So the investigative technique ‑ ‑ ‑

GLEESON CJ:   Complain about the offence anyway.

MR McARDLE:   Yes, complain about the offence; they might be left with a grievance.  Someone who is buying or selling heroin is not going to complain to the police about it.  Of course, the earlier mischief to which these documents were directed is, I suppose, now really a part of history.

McHUGH J:   You may be right that this is not a suitable vehicle for special leave but, speaking for myself, I think consideration ought to be given to much more specific instructions than is in this particular case, Mr McArdle.

MR McARDLE:   Yes.  Your Honours, we are happy to undertake to direct a transcript of what has happened today to ‑ ‑ ‑

GLEESON CJ:   This case does seem to have gone off both at trial and in the Court of Appeal on a pretty narrow challenge to this document that appears at page 14 of the application book.

MR McARDLE:   Yes.  It was an attempt, it might be said, to reargue Te.  In fact, some part of the proceedings in the Court of Appeal were directed towards the question of whether or not five judges should be assembled to hear the case and that was rejected.  There is of course in the background, as I think we have pointed out to the Court, another case of Papoulias about 10 years ago in which these certificates were examined.  That in turn leads one to this submission, that in the event that it was thought that there was some illegality about these proceedings, it would, it is submitted, be surprising if the judge did not admit the evidence in any event, it being a discretionary matter and these certificates having been, up until the time Judge White had to consider the matter, the subject of approval by at least eight judges.  One judge sat twice.

GLEESON CJ:   That looks like the basis on which the Te special leave application went off.

MR McARDLE:   Yes, and it is submitted so far as the discretionary matter is concerned, then it remains a good point here.  Your Honours, our position so far as the issue of the particular case is concerned I think we have made plain in what I have had to say today in our outline of argument.  So far as the precision of the document is concerned, again we have made the point that it is different from warrants or similar documents that might interfere with people’s accumulated rights and has to be construed separately.  Indeed, the interpretation has to be directed towards the mischief and the mischief is in turn to overcome, or at least to allow, police to engage in covert activities.

Those circumstances are such that it cannot be said that the lines of communication would be available or free so as to get another certificate or another name on a certificate.  When they embark upon these things, you cannot assume, for example, even assuming a name is essential, that the name is the right name or there is not the same person with several names or the person you thought had one name turns out to be a couple of persons.  You are in a world of pseudonyms and nicknames and slang and in those circumstances, we submit, subject to any matters the Court wishes to raise with me, that there is no error in the Court of Appeal.

GLEESON CJ:   Thank you, Mr McArdle.  Yes, Mr Nash.

MR NASH:   If the Court pleases.  The issue raised in relation to the instrument requiring extrinsic evidence which your Honour the Chief Justice raised highlights the fact, in our submission, that the instrument itself is inadequate.  It leaves to the discretion of the individual police officer the determination of the offences to be committed.  There is no supervision or control.

GLEESON CJ:   That might depend on what Operation Quins is; that is the problem.  For all we know, Operation Quins might have been highly specific as to the nature of the undercover operations to be undertaken, even though it did not nominate any particular suspect.

McHUGH J:   All the steps in Operation Quins may have been outlined in general form.

MR NASH:   Yes, your Honour, but not in the authority in writing given pursuant to section 51.  The only other point we would make by way of reply is that first of all, Papoulias did not consider the validity of the authorities, merely their existence.  The argument my learned friend puts is a bootstraps argument.  The Court of Appeal has been getting it wrong for so long that police officers are now entitled to ignore the law.  That is an unfair paraphrase that in effect that is what it amounts to.

GLEESON CJ:   I thought that what he was saying was that this instruction was one that had followed a form approved by Victorian courts for a long time and in those circumstances it would have been a very odd exercise of discretion on the part of the trial judge to refuse to admit this evidence even if he had taken the view that the form was defective.

MR NASH:   He did have before him the statement of Justice Gummow when leave was refused in Te.

GLEESON CJ:   But I thought we were told that this instruction was written years before Justice Gummow said what he did.

MR NASH:   Yes, your Honour.  The instruction was that the hearing before the trial judge specifically involved a discussion of the views of this Court expressed in Te as well as the views of the Court of Appeal.  If the Court pleases, there are no further submissions.

GLEESON CJ:   Thank you, Mr Nash.

Having regard to the way in which the case was conducted at first instance and the grounds argued before the Court of Appeal, we do not consider that the present case is a suitable vehicle to ventilate the point of general importance which the applicant seeks to raise.  However, we would repeat the observations that were made by this Court in dismissing the application for special leave in the case of Te v The Queen decided on 11 September 1998 and we would add that, in any event, we are not persuaded that in the present case in relation to the matter sought to be raised by the applicant there was a miscarriage of justice.

In those circumstances, the application is refused.

AT 10.41 AM THE MATTER WAS CONCLUDED