R v Amoedo & Dominguez

[2006] NSWDC 188

CITATION:	R v Amoedo & Dominguez [2006] NSWDC 188
HEARING DATE(S):	22/08/06
JUDGMENT DATE:	25 August 2006
JURISDICTION:	Criminal
JUDGMENT OF:	Norrish QC DCJ
DECISION:	See para 34.
CATCHWORDS:	Evidence - illigally obtain evidence - illegal search - desirability of admitting evidence - Customs Act - international law - private and public law.
LEGISLATION CITED:	Evidence Act 1995 Customs Act 1901 Customs (Interception of Vessels) Regulation 2001 Fisheries Management Act 1991
CASES CITED:	Bunning v Cross (1978) 141 CLR 54 R v C (1997) 93 A Crim R 81 R v Helmhout (2001) 125 A Crim R 257 Olbers Co. Ltd v The Commonwealth (2004) 148 A Crim R 547 Re Director of Public Prosecutions; ex parte Lawler (1994) 179 CLR 270 George v Rockett (1990) 170 CLR 104
PARTIES:	Regina Alfonso Dacruz Amoedo Enrique Dominguez
FILE NUMBER(S):	06/11/0241
COUNSEL:	P Hastings QC - Crown L Crowley - Crown M T Trowell QC - Offenders H K Dhanji - Offenders
SOLICITORS:	Ms A Samad - Commonwealth DPP T Anderson - Phillips Fox - Offenders

JUDGMENT

Application pursuant to s.138 Evidence Act 1995

Introduction

1 On 21 August 2006 this Court declined to order a permanent stay of proceedings in respect of the current prosecution of the two above named accused. That application was formally refused on Friday 18 August 2006. The accused were then arraigned and evidence adduced in respect of the application for a permanent stay of proceedings was received in respect of a further application to exclude evidence sought to be relied upon by the Prosecution to prove the guilt of the accused arising out of search and seizure of and upon ‘Taruman’ on 6 September 2005, pursuant to s.138 Evidence Act 1995. This judgment should be read in conjunction with findings of fact and other findings and observations made in the judgment relating to the application for a permanent stay of proceedings delivered on 21 August 2006.

2 The accused seek to exclude evidence, generally described in this Court’s earlier judgment, as having been obtained during searches of the Taruman on 6 September 2005, on the basis that the evidence in question was obtained either improperly or in contravention of an Australian law, or in consequence of an impropriety of an Australian law. It is submitted on behalf of the applicants that the desirability of admitting the evidence is out weighed by the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained, taking into account all relevant matters, including those matters set out in s.138(3) Evidence Act. It is accepted by the applicants that the onus is upon them to establish that evidence was relevantly improperly or illegally obtained. However, it is for the Prosecution, seeking to admit the evidence, to satisfy the Court that the desirability of admitting the evidence outweighs the undesirability of admitting it, having regard to the manner in which it was obtained.

3 The Prosecution, in the context of findings made in the earlier judgment given, conceded at least some impropriety relevant to the manner in which the evidence was “obtained”, but that the desirability of admitting the evidence outweighed the other considerations.

Section 138 Evidence Act

4 That section provides as follows:

“(1) Evidence that was obtained:

(a) improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of an Australian law;

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:

(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or

(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a) the probative value of the evidence; and

(b) the importance of the evidence in the proceeding; and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and

(d) the gravity of the impropriety or contravention; and

(e) whether the impropriety or contravention was deliberate or reckless; and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.”

5 The fundamental interpretation of this provision apparently is not in issue. The section requires the Court to be satisfied firstly, that the evidence was relevantly improperly or illegally “obtained” or “in consequence” of such matters and then, if so, the Court is to undertake a balancing exercise, weighing considerations that support exclusion of the evidence against those supporting its admission.

6 In Bunning v Cross (1978) 141 CLR 54, Stephen and Aickin JJ observed that the discretionary aspect of the balancing exercise relevant to exclusion at common law required weighing competing requirements of public policy: “the desirable goal of bringing to conviction the wrong doer” and the avoidance of “the undesirable effect of curial approval or even encouragement being given to the unlawful conduct of those whose task it is to enforce the law (at 74)”. Stephen Odgers SC the learned author of “Uniform Evidence Law” (7th Ed) observes that whilst this formulation cannot displace the balancing test articulated in s.138(1) it is “a useful articulation of the principal public interest which must be balanced”. Likewise in R v C (1997) 93 A Crim R 81, it was held that this provision in its assessment of competing public interests was relevantly similar to the discretion available at common law.

7 Having regard to the earlier factual findings relating to the boarding of the Taruman and the seizure of documents there can be no doubt that the relevant evidence was “obtained” as a consequence of the actions of Australian authorities purporting or believing at the time that they were exercising powers pursuant to ss.184A, 185A Customs Act and Customs (Interception of Vessels) Regulation 2001.

8 The issue that arises firstly for consideration in this matter is whether there was a relevant impropriety or illegality having regard to those earlier findings. The considerations set out in s.138(3) are not an exclusive statement of relevant considerations (R v Helmhout (2001) 125 ACrimR 257). As it has transpired the only relevant considerations addressed upon are the various matters set out in that subsection said to be relevant to the circumstances of this case.

The Contentions of the Parties

9 In written and oral submissions the accused assert that the search and actions following the search were relevantly illegal, as there were no legislative powers to search pursuant to ss.184A, 185A Customs Act, or under any other act, and that whilst, in accordance with the decision in Olbers Co. Ltd v The Commonwealth (2004) 148 ACrimR 547 the property in question was, at the time of seizure, that of the Commonwealth, there was a failure to comply with the provisions set out in Part 6 Division 6C Fisheries Management Act (FMA), reflecting upon the severity of the illegalities occasioned. Further, and/or alternatively, exceeding the powers available under s.184A(8) Customs Act was a “serious impropriety” that ought not, as with any illegality, receive curial endorsement.

10 The accused both submit that whilst the evidence is highly probative, the cogency of the evidence ought play no part in the exercise of the relevant discretion where the illegality involved in procuring it is intentional or reckless. Although there may be exceptions to this proposition, “for example where the evidence is both vital to conviction and is of a perishable or evanescent nature, so that if there be any delay in securing it, it will have ceased to exist”. Further, it is submitted that whilst the evidence is important it is not the totality of the evidence. The offences do not carry terms of imprisonment and are therefore less serious than those offences that carry terms of imprisonment, the impropriety or contravention of the law was grave and should not be “encouraged or tolerated” and the Court should observe the public interest “in maintaining the integrity of the Courts and in ensuring the observance of the law and minimum standards of propriety by those entrusted with powers of law enforcement”. Customs Officers involved were illegally armed. Those responsible were at an extremely high level of authority it is submitted and had the opportunity of getting “considered advice”. The conduct complained of was “in disregard of international law” and Australia’s international obligations to Cambodia. As this was the first operation of it’s kind there was a need to set a standard, so to speak, to prevent recurrences of the illegal behaviour. It is submitted that whilst it is not a case of “mala fides” the impropriety or contraventions were either deliberate or reckless and in the circumstances this was particularly serious. Unless a ruling is made adverse to the prosecution the conduct will remain unpunished or unchecked and further any difficulty in obtaining the evidence could not justify the action that was taken. Other issues were raised as well that have been taken into account.

11 The Crown accepted in the context of the earlier ruling that at least there was impropriety established however the balancing of considerations in this matter was much the same as that undertaken in respect of the application for a stay of proceedings.

12 In this matter the prosecution contends that:

i. there was an absence of mala fides,

ii. the evidence obtained was of a very high probative value,

iii. the evidence obtained was tangible, specific and cogent and totally unaffected by the claimed impropriety or illegality,

iv. the evidence was vital to the prosecution of the accused and the prosecution of the accused might fail without it,

v. the offences were serious, in the sense that they were not minor or trivial and the particular offences were very serious offences in the context of the FMA. The Crown referred to judicial observations of high authority underlining the significance of FMA offences, particularly observations in the High Court (Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270 (at 295)) where it was observed: “Protection of the nation’s fishing grounds is a matter of high public importance. If protection is to be achieved, drastic deterrents may be needed”;

vi. even if the gravity of the contravention or impropriety was serious, it was neither deliberate or reckless,

vii. the evidence, if not seized at the relevant time, may have been destroyed thus there was objectively “difficulty obtaining the evidence without impropriety or contravention of an Australian law”, particularly having regarding to the urgency of the situation. Although in this matter there was no “deliberate cutting of corners”.

Consideration

Whether there was evidence obtained by, or as a consequence of, “illegal” or “improper” conduct.

13 Noting the terms of s.138(1), there can be no doubt that the evidence the prosecution wishes to adduce from the activities of Mr O’Flanagan and his colleagues was obtained from conduct for which there was no legal authority at the time, save for that incidental to the seizure of the property of the Commonwealth pursuant to s.106A FMA, as interpreted by the Federal Court in Olbers Co Ltd v The Commonwealth, to which I referred in my earlier judgment. Strictly construed the relevant logs, charts and computer records to be adduced in evidence were caught by s.106A(c), as relevant “equipment”, … “on (the) boat” either “at the time” of a relevant offence or “used in the “commission of an offence”, which was property of the Commonwealth. Although Olbers determined ‘private law’ issues, not public law issues as arise here, the logical conclusion on the basis of that decision is that the Commonwealth could “seize” its property on the ‘high seas’ and return it to Australia. “Self help” is, as I understand the matter, available at common law. Recaption of goods, abatement of nuisance, ejectment of trespassers are examples of “self help”. Extra-judicial remedies are recognised in tort, contract and international law. I understand the decision in Olbers to have upheld the Commonwealth’s right to “self help” on the high seas to recover property belonging to it, on the facts of that case. That the “evidence” was ‘obtained’ on the high seas, as a fact, must be considered with the understanding that it could relevantly have been ‘obtained’ later in Australian waters when the boat was ‘returned’ under the same common law ‘self help’ remedy.

14 If seizure occurs on the high seas Part 6, Subsection 6C of FMA does not apply. Having regard to s.106B and the terms of s.84 and 87FMA, whilst the boat is on the high seas, s.106A, in its terms, permits theoretically seizure on a “suspicion” which may lead to the finding of evidence that “confirms” that the foreign boat was “used in (a relevant) offence”. The terms of the United Nations Convention for the Law of the Sea (UNCLOS) are on their face incompatible with such wide power. The full implications of the impact of ‘common law rights’ of the Commonwealth of Australia upon the ‘public rights’ under Australian law of the owners and the accused (and other crew) are a grey area that have not been fully debated before me, except in so far as the accused has submitted, which I accept, that a private citizen cannot, in effect, commit a crime to enforce a common law right (using my words). Thus neither could, and should, the Commonwealth of Australia.

15 Noting these matters as a backdrop or legal reality, ultimate resolution of this difficult application falls to be considered in the context of the reality of the situation as at the time of the obtaining of the evidence and beforehand, both objectively and by examination of the conduct of relevant decision makers. Having regard as to what was earlier held in the permanent stay proceeding, pursuant to ss.184A and 185A Customs Act and Customs (Interception of Vessels) Regulation 2001 (Regulation 8), there was no power to board for the purposes of actually seizing control of the ship and “obtaining” items and documents the subject of the current objection. This was because there was no “agreement or arrangement” which enabled the exercise of Australian jurisdiction over the Taruman. There was an agreement from Cambodia to board in the terms of the cable of 19 August 2005, which I construe, although its terms are not abundantly clear, to confirm the ship’s identity and registration incidental to the flag state’s responsibility under Article 92 of the UNCLOS (cf s.185A(2(a)(b) FMA). I take this permission, or ‘arrangement’ to exist, not pursuant to the terms of s.184(8), but pursuant to international law. Cambodia however did not agree to or enter an arrangement to submit Taruman to Australian law. Anything done purportedly pursuant to s.185A(4) was outside the scope of the agreement or arrangement that existed. The relevant “request” to board was in accordance with the agreement or arrangement, but not pursuant to s.184A. S. 84 FMA provided no power to board or search for reasons already given.

16 The request of Cambodia and the boarding of Taruman were made and undertaken at a time when those responsible for the operation directing Mr O’Flanagan had reasonable grounds for believing the Taruman had been engaged in illegal fishing within the AFZ. The combination of circumstances known to Mr Hurrell, Ms Leary and Mr Jones, to name those with relevant responsibilities who gave oral evidence in the Court, and their interpretation of the available evidence, including the photographic evidence, in my view, were sufficient grounds to induce that state of mind in a reasonable person (George v Rockett (1990) 170 CLR 104, at 112-3).

17 Further, those that made the relevant decisions that led to the seizure of the documents, Mr O’Flanagan and others in the boarding party who ‘obtained’ the evidence, were conduits of ‘higher authority’. There was considerable confusion in the evidence as to what those people believed or had been advised, but Mr Hurrell and Ms Leary understood that at the most the Cambodian Agreement permitted boarding and “inspection” no more. What ‘inspection’ actually meant in the minds of Mr Hurrell and Ms Leary, or those that advised them I am unsure. They made in my view a leap in reasoning to convince themselves that if the inspection revealed evidence of illegal fishing operations that powers under the Customs Act could be invoked (ie s.185A). They all genuinely believed however that in order to board the ship they could do so under threat of force, although there was no authority to do so under international or Australian domestic law in this matter.

18 Mr O’Flanagan and his colleagues had no power under any relevant statutory authority to cause the Master and/or the Fishing Master by threat of force to sail towards Australian waters although the Court in Olbers approved a degree of ‘self help’ to recover its property.

19 Thus, on one hand, the boarding and seizure of the ship; including its equipment, was in contravention of relevant Australian statutory law, but it was not, theoretically, at common law. The “obtaining” of the evidence was likewise in contravention of Australian statutory law but at common law the evidence was the property of the Commonwealth. The method of returning it to the jurisdiction was at the very least improper. The applicants have satisfied the terms of s.138(1)(a) and/or (b) Evidence Act.

Desirability of Admission (s138(1) and (3) Evidence Act)

20 The Prosecution must satisfy the Court of the desirability of admission. Here the evidence obtained was highly probative of guilt, this is conceded by the accused (cf s.55 Evidence Act). The illegalities and/or improprieties did not in any way affect the cogency of the evidence. The allegations are very serious allegations in the context of the range of offences available in the FMA, and whilst not the most serious offences punishable under Commonwealth law, they are neither minor or trivial. The allegations touch upon matters of significant economic importance to Australia. The seriousness of the allegations is measurable, not by the fact that no term of imprisonment is available as a penalty, but that the offences are triable by a judge and jury and the fines are, for individuals, very substantial indeed.

21 It is conceded that no issue arises pursuant to the International Covenant on Civil and Political Rights. I note that, as I understand it at this stage, there will not likely be any disciplinary or other proceedings against any person who may be adjudged to have acted in breach of Australian law or otherwise improperly.

22 Having regard to these matters the controversial issues for assessment that arise to be taken into account pursuant to s.138 (3) are those others set out at (d) and (e) of that subsection and related issues.

23 This involves consideration of the conduct and belief of relevant decision makers, as much as it can be assessed given the incomplete nature of the evidence. I do not have all the legal advice given to Hurrell and Leary, nor the recollections of the other members of the Operations Advising Group.

24 As I earlier concluded there was no issue concerning the implications of s.106A FMA that arose in the minds of the relevant decision makers with regard to boarding the ship, search and seizure. Forfeiture was considered as an issue when seizure of the ship had occurred and after discovery of incriminating material. Some of the evidence suggests that there was discussion concerning forfeiture in contemplation of this latter event but forfeiture was conditional upon that occurring in the minds of Mr Hurrell and Ms Leary. Ss.106B-G, particularly an alleged non-compliance with s.106C, do not arise for consideration, given the circumstances of this matter.

25 In the context of my earlier findings, noting for example Ms Leary’s view as at 9.21 am (EST) on the day of seizure, the advice received (such as can be identified from the available material), the evidence of the participants and even Mr Hurrell’s attitude in his earlier email of 2 September 2006, Mr Hurrell and Ms Leary believed that they could board and “inspect” and at that point do nothing more. They did not believe at the time of boarding that there was a right of seizure of the ship or relevant equipment. There are lacunae in the evidence however which cannot be filled with other than speculation. For example, no examination was undertaken of the witnesses as to precisely what instructions were given in the various briefings as to the scope of inspection. The evidence appears on my examination of it to be silent as to precisely what orders O’Flanagan had and what authority was given to him to “inspect”, without the voluntary consent of the Master or his crew. The evidence reveals in accordance with the agreement with Cambodia, that the boarding was undertaken, as I earlier concluded, without relevant voluntary consent. But there has been no examination during the voir dire of the basis, once Australian authorities boarded, upon which Mr O’Flanagan and his colleagues took it upon themselves to search for documents.

26 I am unable to conclude one way or the other as to what was the state of mind of Hurrell and Leary as what could be done to turn an inspection into a search. Nor can I determine what were the specific instructions given, or the beliefs of Jones and O’Flanagan, regarding the extent to which “inspection” could go beyond the bare essentials of confirming the registration and/or flag nation’s status of the Taruman and perhaps matters of identification. While there are a number of inferences that might be drawn from the circumstances that existed (high handed officiousness officially directed or condoned, deliberate abrogation of the rights of the owners and crew of Taruman, carelessness in execution of the orders that were given, misunderstanding by the boarding party as to ambit of their authority, negligence in the execution of the orders) no particular conclusion appears more attractive or reasonable than another. There is the possibility of a combination of these factors contributing to the situation where the relevant “incriminating” material was located. I am satisfied, however, that on the part of Mr Hurrell and other relevant decision makers there was a belief held by them in good faith, although not justified at law, that once relevant incriminating evidence was found, that triggered powers to be exercised pursuant to s.185A Customs Act, to enable seizure of material which led to a belief that the ship could be forced back into Australian waters for “further investigation” and possible or probable forfeiture. I cannot conclude that these decisions were made otherwise than in good faith, albeit at least negligently.

27 It is to be remembered that this was the first time that purported powers available under the Customs Act were being exercised. Notwithstanding considered advice apparently given by persons purportedly qualified, the decision makers ie Hurrell, Leary and Jones particularly, bearing in mind O’Flanagan was the agent of such directions or orders he was given, did not fully understand the legislation or the implications of the situation. Nor apparently did those who advised the enforcement and operation officers. Given that they had reasonable grounds for believing that offences of some type under the FMA had taken place, it is clear that whilst there were deliberate decisions made at each level of command, they were not deliberate decisions to break Australian law. They certainly were not decisions made in bad faith or fraudulently. The SOLAS (Safety of Life at Sea) “issue” raised from Ms Leary’s notes of the OAG meeting may evidence uncertainty in her mind as to the implications of the seizure but do not , in my view, reflect evidence of deliberate wrong doing.

28 After the relevant seizure of relevant records and other items of an incriminating nature on the ship, I note the evidence to which Mr Dhanji referred in oral submission concerning the threat of force to cause the ship to be directed towards Australian waters. This underlines my earlier finding that any consent and cooperation that was given was not voluntary on the part of the accused. There was no legal authority for the threat of force whilst on the ship, although such threats that were made were threats to use force and did not involve the actual application of force. I have noted the submissions that have been made relating to the need to “set an example”, not give “curial authority to wrong doing”, “setting a standard” and wider issues that arise concerning Australia’s international and it’s relationship with Cambodia. In this latter regard there is no evidence of protest from the international community or from Cambodia itself. In fact there was rather acquiescence by Cambodia in the decisions made by the Australian authorities. There may have been retrospective approval, but I have previously held this did not constitute relevant permission. I understand further that the owners of the vessel were most probably less than pleased with events, particularly if it be so (although there is no evidence of this before me) there was a loss of any opportunity to enforce private rights before the ship was returned to Australian waters. Whilst such a scenario remains a reasonable possibility, given the state of the evidence it is a matter of speculation as to the extent to which any private rights were in the circumstances enforceable or capable of enforcement before such return.

29 I have noted those specific complaints made in submission about the use of force on board, the presence of armed men directing the accused to comply with their directions and specific threats of use of force if their directions were not complied with, particularly those specific matters occurred after the objected evidence was “obtained”. Even assuming that O’Flanagan’s actions were commanded by Jones or others above him, taking into account all the relevant evidence I conclude that such powers as were purportedly exercised by those Australian authorities on board the Taruman, were exercised in a mistaken belief that having located incriminating evidence of illegal fishing, this empowered Australian authorities to compel those in charge of the vessel to sail back to Australian waters.

30 In relation to this last aspect of the matter, particularly Mr O’Flanagan’s reasons for his action and the role of Mr Hurrell, Ms Leary and Mr Jones in this respect, there was no questioning of these witnesses of a specific nature in respect of instructions given, understanding of the basis for such conduct, or whether in fact in the case of Hurrell and Leary they were at the relevant time, or shortly afterwards, aware of the use of force. I cannot fill gaps in the evidence with speculation as I have said, or draw inferences or conclusions in relation to matters where there is no factual foundation for so doing.

31 I am sure that all those involved were anxious, to use a colloquialism, to “nail a suspect”. But I cannot conclude that their enthusiasm involved a cavalier disregard for the rights of the owners of the crew of the Taruman. Rather there was a series of careless and/or negligent leaps of logic or reasoning. The finding of incriminating evidence seems to have provided in the minds of those making decisions on the day an ex post facto justification for purportedly enforcing legal powers, that otherwise would not exist. They did not exist beforehand because Mr Hurrell and Ms Leary and those advising them understood that Cambodia had not agreed to submitting Taruman to Australian domestic law.

32 As to the difficulty of obtaining the relevant evidence without contravention of Australian law or impropriety, there is no doubt that unless the Taruman voluntary sailed into Australian waters, the objected evidence would not have been obtained had the Australian authorities complied with the agreement with Cambodia. If the seizure was delayed, pending for example agreement from Cambodia to submit the Taruman to Australian domestic law, given the circumstances of the boarding and the confrontation between the boarding party and the accused, there was great risk of relevant evidence being destroyed or lost. As to whether there was a “cutting of corners” I am unable to decide either way. The evidence is clearly vital to the prosecution case and was appreciated by those who obtained it to be vital to establish offences under the FMA.

33 That the integrity and/or cogency of the evidence is not tainted or affected by the conduct is another relevant consideration in this case which militates in favour of admission.

Conclusion

34 Thus having regard to all the matters that have been raised by the parties and the evidence available to the Court I have come to the view that the Crown has established that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.

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