R v Domokos (No 2) - [2004] SADC 117

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DOMOKOS & ORS (No 2)
Reasons for Rulings of His Honour Judge Robertson
16 June 2004
CRIMINAL LAW
VOIR DIRE - CRIMES ACT 1914 - CUSTOMS ACT 1901
Application to exclude from evidence two telephone intercepts and the delivery of a parcel - Public Policy discretion - General unfairness discretion - Application refused.
Crimes Act 1914 (Cth) Part 1AB; Customs Act 1901 s233B(1)(d); , referred to.
Bunning v Cross (1977-78) 144 CLR 54; R v Kelly (1975) 12 SASR 389; R v Young (1975) 7 ALR 271; R v Tannous (1987) 10 NSWLR 303; R v Lam (1990) 46 A Crim R 402; R v Courtney-Smith (No 2) (1990) 48 A Crim R 49; R v Leff (1986) 86 A Crim R 212; R v Lobban (2000) 77 SASR 24, applied.

R v DOMOKOS & ORS (No 2)
[2004] SADC 117
Judge Robertson
Criminal

This is an Application by the accused Domokos for the exclusion from evidence of two telephone conversations between a Mr Demeter and the accused held on 18 October 2000 and 26 October 2000 respectively. The intercepts were made pursuant to Warrant A2444/00/00. Furthermore the accused Domokos also seeks to have excluded the evidence of Mr Demeter that on 27 October 2000 at his house at Waikerie he handed over a package to the accused.
The evidence discloses that on 10 October 2000 the Federal Police took part in a controlled delivery of a parcel to the home of Mr Demeter at Waikerie. The parcel contained a small amount of illegal drugs. The remainder of the package contained an inert substance. The inert substance had been placed in the package after the Australian Federal Police had removed a large quantity of illegal drugs. The parcel containing a shipment of illegal drugs had been earlier detected whilst it was passing through the Australian Post system. Following a controlled delivery containing illegal drugs to the Waikerie premises by the Australian Federal Police they arrested Mr and Mrs Demeter on 11 October 2000.
With respect to the telephone conversations, Mr White submitted that in each call the accused made implied admissions. He submitted that Mr Demeter in becoming involved in the conversations without advising the accused that he had been arrested and that he was co-operating with the Police became engaged in counselling or procuring the accused to commit an offence, namely the offence for which he has been charged in Count 1, of being knowingly concerned with the importation of a prohibited import. I think from there it was Mr White’s submission that Mr Demeter was acting as an agent of the Police during these conversations and as a result the Police have counselled or procured the commission of the offence by Mr Demeter.
Mr White submitted that the Police obtained the evidence by illegal conduct through the illegal conduct of Mr Demeter. He submitted that the public interest in having the Police comply with the law required, that the evidence be excluded in the exercise of the Public Policy discretion. He cited observations of the High Court in The Queen v Swaffield (1998) 142 CLR 259 and Ridgeway v The Queen (1994-1995) 184 CLR 19 in support of the Application.
Mr White also spent some time in his submission referring to the provisions contained in Part 1AB of the Crimes Act 1914 (Cwth) which provides for exemption from criminal liability for Police Officers and other persons who commit a crime in the course of a Controlled Operation (as defined) if a Certificate has been obtained pursuant to that Part. There are certain steps which need to be taken in order that a Certificate be issued. It is not in dispute that a Part 1AB Certificate was not in existence for the period from 18 October to 27 October. There had been a Certificate obtained for the controlled delivery which took place at Waikerie on 10 October 2000 but that Certificate had expired on 16 October 2000. It was Mr White’s submission that Mr Demeter and the Federal Police were engaged during this period in a Controlled Operation, within the meaning of the Crimes Act, and that the failure to obtain a Certificate is a highly relevant factor in favour of the exclusion of the evidence.
In my opinion the evidence does not disclose that Mr Demeter was acting as the agent of the Police when he held the telephone conversations with the accused Domokos. Australian Federal Police Records indicate that on 11 October, the day of Mr Demeter’s arrest, it was recorded that Mr Demeter may be prepared to assist the Police with a further controlled delivery to the accused Domokos. It seems that Mr Demeter had indicated a willingness to assist the Police. Apart from that evidence there is no other evidence which suggests that an arrangement had been agreed upon prior to 16 October. It is clear that on 27 November he co-operated with the Police regarding the delivery of the parcel. That conduct was the subject of a specific agreement made on the morning of 27 October. It follows from the conclusion that Mr Demeter was not acting as an agent, that the accused has not crossed the threshold of establishing illegal conduct on the part of the Federal Police. However, I will proceed to deal with the other submissions made by Mr White.
The arrangement that Mr Domokos had made with Mr Demeter, prior to the arrest of Mr Demeter, is that Mr Demeter would receive a parcel sent from overseas and that later Mr Domokos would arrange for its collection. For that service Mr Demeter would be paid $500. Prior to his arrest Mr Demeter had informed Mr Domokos that the parcel had arrived. Mr Domokos called Mr Demeter on 16 October and it was during that conversation that Mr Demeter requested that Mr Domokos come and collect the parcel, although no firm arrangement was made for its collection. At the time Mr Demeter knew that the parcel which he had received contained some illegal drugs, having gained that knowledge at the time of his arrest. Mr Demeter has stated that when he agreed with Mr Domokos to accept delivery of a parcel from overseas, he had a suspicion it may contain illegal drugs but was told by Mr Domokos that it did not contain illegal drugs, only important papers. At the time of the call of 16 October 2000 Mr Demeter no longer held the parcel. It was in the hands of the Federal Police. During the telephone call Mr Demeter did not inform Mr Domokos that he had been arrested or that he no longer was in possession of the parcel. Following the telephone call Mr Demeter informed the Federal Police about the call.
On 26 October Mr Domokos called again and informed Mr Demeter he would be arriving at Waikerie the following day to go fishing. Following receipt of that call, Mr Domokos again contacted the Federal Police and informed them of the terms of the conversation.
With respect to the call of 26 October it is difficult to see how the role played by Mr Demeter in that call was counselling or procuring Mr Domokos to commit the offence. He simply received information from Mr Domokos that he intended to arrive in Waikerie the following day. There may be some argument with respect to the call on 16 October, in that by requesting Mr Domokos to collect the package that Mr Demeter was counselling or procuring Mr Domokos to commit the offence although the question of Mr Demeter’s intention would certainly be an issue. I reject the submission by Mr White that the failure to inform Mr Domokos that he was arrested and that he was intending to assist the Police in some way translated into Mr Demeter counselling or procuring the commission of an offence.
It is clear from what I have already said that I am not prepared to accept that Mr Demeter in engaging in those two conversations was acting as an accessory. Of course, even if he was, on my finding that he was not acting as an agent of the Police, such accessorial liability does not translate into the Police having accessorial liability. However, even if it is accepted that there was illegal conduct on the part of the Police in the form of accessorial conduct, which enabled them to obtain the evidence of the two telephone conversations, I have not formed the view that the nature of that conduct is such that I should exclude the evidence in the exercise of the Public Policy discretion.
In reaching this conclusion I have weighed up the competing public policy interests outlined in Bunning v Cross (1997-78) 144 CLR 54 at page 74. Guidance is provided by the High Court (at 78-80) regarding some of the factors which may be considered in weighing up those competing public policy interests. I have also considered these in reaching my decision.
In my opinion any accessorial liability by the Police (assuming it to be established) is one involving fine points of law. The conclusion that there is accessorial liability follows only as a result of the application of a mature legal mind to the facts. Such a mind would need, in the first instance, to be aware that for the purpose of Section 233 B(1)(d) of the Customs Act 1901 an importation venture does not end at the moment the illicit drugs arrive in Australia and are delivered but extend to events which are directly related or proximate or incidental to the importation. (R v Leff (1996) 86 A Crim R 212 at 223). From that point a good understanding of accessorial liability in the Criminal Law would be required.
Federal Agent Traynor, who was the nominated case officer, said in evidence that it was his view that the importation occurred at the time of the delivery of the parcel to Mr Demeter. With respect to the events of 27 October 2000, which I will come to shortly, he understood that he was in the process of gathering evidence. I accept his evidence. It is a perfectly understandable position for a person not versed in the complexities of law regarding this offence. It could not be expected of Federal Police Officers that they would be required to have such a sophisticated level of knowledge that they understood that Mr Demeter was engaging in accessorial conduct and that such liability, by dint of agency would also fall at their feet.
I mentioned earlier that Mr White submitted that the Federal Police should have obtained a Certificate under Part 1 AB with respect to the telephone calls. In my view there was not at the time a “Controlled Operation” within the definition contained in Section 15H of the Crimes Act 1914. At the time of the calls there was no arrangement on foot with Mr Demeter that he would assist the Police and engage in a controlled delivery. The best that can be said is that he had indicated a willingness to become involved. However, even if it was a Controlled Operation which required a Certificate the failure of the Police to obtain one does not cause the balance in the scales to weigh in favour of the exclusion of the evidence. The failure to obtain a Certificate was not deliberate or reckless. Mr Traynor said that he was of the view that the importation had ended when the drugs came into Australia. Even if the Police generally anticipated that Mr Demeter would receive a call or calls from Mr Domokos regarding the collection of the package, and it was expected that Mr Demeter would inform them of any call, it is difficult to see how it could be said that the Police should have realised that if such circumstances arose then that was a controlled operation within the meaning of the Crimes Act and a Certificate would need to be obtained.
As I said earlier, in weighing up the competing public policy interests, taking into account all the relevant circumstances I am not prepared to exercise the Public Policy discretion to exclude the impugned evidence.
I now turn to the delivery of the parcel containing the inert substance by Mr Demeter on 27 October 2000.
For the purpose of these Reasons I am prepared to accept that the handing over of the parcel was a Controlled Operation within the meaning of Section 1AB of the Crimes Act. I accept for the purpose of my decision that by handing over the parcel containing the inert substance that Mr Demeter was engaged in procuring the commission of the offence under Section 233 B (1)(d) of the Customs Act (see: R v Leff (supra)). I further accept, for the purpose of my decision, that Mr Demeter was acting as an agent of the Police and that such agency involved the Federal Police in accessorial conduct through the actions of Mr Demeter. (see: R v Webbe (1926) SASR 108 at 112.) There are arguments which suggests a contrary conclusion but once again I do not stay to consider them.
I mentioned earlier that Federal Agent Traynor gave evidence. He said that he was informed at about 8.15 pm on 26 October 2000 that Mr Domokos was intending to arrive in Waikerie the following morning about 11 o’clock or twelve noon. Mr Traynor told Mr Demeter in a telephone conversation during that evening that the Police might come to Waikerie tomorrow with a parcel to give Mr Domokos. Mr Traynor said that he discussed making a controlled delivery of the parcel, through Mr Demeter to Mr Domokos, with a Senior Officer and also the requirement to obtain a Certificate under Part 1AB of the Crimes Act. He said the conclusion was reached that there would be insufficient time to obtain one. Mr Traynor said that on reaching that conclusion it was decided to remove the remaining illegal drugs in the parcel and substitute them with a further inert substance so that the entire parcel was free of illegal drugs. Mr Traynor said that it was his belief that if illegal drugs remained in the parcel and a delivery was made then such action was a controlled delivery and a Certificate was needed. However, he said it was his belief that if the illegal drugs were removed from the package then any delivery was not a controlled delivery and that as a result a Certificate was not required. I accept the evidence of Mr Traynor. It appeared that Mr Traynor was not familiar with the meaning of the term “Controlled Operation” as it is used in Part 1AB.
As I mentioned earlier Mr White, in part, relied upon the decision of Ridgeway to support his application for the exclusion of the evidence. Some assistance is gained in understanding the decision of the High Court in Ridgeway and its application by reference to the observations of Cox J in R v Martelli (1995) A Crim R 550 at 557-558.
“The exposure and prosecution of criminals by means of what may loosely be called police entrapment – the use of undercover agents to make ‘controlled buys’ or to engage the suspect in analogous criminal actions – has been a commonplace of police investigation methods in common law countries from time immemorial. It did not usually raise an evidential issue in any resultant prosecution because for a long time the policy of the courts, except perhaps in extreme cases, was that evidence is admissible in a criminal trial if it is relevant, and generally how it was obtained was no bar to its admission.
Now the High Court in Ridgeway has examined the problem, looked to the possibility of legislation that would give the police a supervised exemption from criminal responsibility, and given guidance to trial courts about the way the Bunning v Cross discretions, with respect to public policy and possible unfairness to the accused, are to be exercised in these cases in the meantime: see Mason CJ, Deane and Dawson JJ (at 37-40; 320-321), Brennan J (at 48-52; 329-332), Toohey J (at 55-56; 335-336; 63-65; 341-342) and Gaudron J (at 72-74; 349-350).
I do not conclude from their Honours’ treatment of the subject in Ridgeway that they contemplate the wholesale rejection of the sort of entrapment evidence relied upon in the present case – the typical controlled buy – simply because it may have involved the undercover police officers in the commission of accessorial or even substantive offences under the very legislation that they are attempting to enforce. In such cases, being the first category discussed in the joint judgment (at 39-40; 321-322), the evidence will usually be admitted, particularly where the police have acted in good faith in the belief, fostered no doubt hitherto by the tacit condonation of the courts, that it is acceptable to commit whatever offence may be constituted by buying or offering to buy drugs from a dealer if it is the only practicable way of getting evidence against the dealer himself.”.
Whilst the circumstances in Martelli involved a “controlled buy” it still provides assistance when considering the nature and level of Police conduct. When evaluating the Police conduct there is nothing in principle or logic to distinguish an act in the nature of a “controlled delivery” from a “controlled buy”. They are both methods used from time to time by Police when investigating alleged drug offending.
The authorities indicate that the taking of possession of the parcel would involve Mr Domokos being knowingly concerned in a prohibited import contrary to Section 233B(1)(d) of the Customs Act (R v Kelly(1995) 12 SASR 389; R v Young (1975) 7 ALR 271; R v Tannous (1987) 10 NSWLR 303; R v Lam (1990) 46 A Crim R 402; R v Courtney-Smith (No 2) (1990) 48 A Crim R 49 and R v Leff (1996) 86 A Crim R 212). Accordingly, accessorial liability on the part of the Police could arise from the Police being involved in such conduct. I said “could” because, as I mentioned earlier, it is by no means certain that accessorial liability arises. However, as I also mentioned earlier, I have, for the purpose of my decision, accepted that accessorial liability does arise.
Mr White submitted that the Police action in engaging the services of Mr Demeter, an arrested person, to carry out the delivery of the parcel also needs to be taken into account in evaluating the seriousness of the Police conduct. He submitted that this should not be conduct which should be seen to be condoned by the Courts. I do not consider that the engaging of Mr Demeter to make the delivery was improper conduct on the part of the Police in the circumstances which were present. They were aware of the arrangements made between Mr Demeter and Mr Domokos for the delivery of the parcel. Mr Demeter indicated his willingness to assist. There was no alternative option than to use Mr Demeter.
Mr White also submitted that another factor which weighed heavily in favour of the exclusion of the evidence was the failure of the Federal Police to obtain a Certificate for Mr Demeter and themselves under Part 1AB of the Crimes Act. As I said I accept Mr Traynor’s evidence that it was felt that there was insufficient time to obtain a Certificate and that if the illegal drugs were removed then the Police did not need a Certificate. It is not the case that they deliberately ignored the provisions of Part 1AB. The only criticism which can be levelled at the Federal Police is that they did not appear to be familiar with the meaning of a “Controlled Operation” under Part 1AB. It seems that Mr Traynor thought the requirements for a Certificate only applied to controlled deliveries. Whilst the absence of a Certificate is one of the matters to be taken into account, the circumstances which led the Police not to apply for a Certificate is also a relevant matter to consider.
As I said earlier in considering the Public Policy discretion it is necessary to weigh up the competing public policy interests identified in Bunning v Cross (supra) at page 74.
In weighing up those two competing interests the High Court pointed out that an important factor to consider is whether the conduct involved a defiance of the will of the legislature or was a calculated disregard of the common law. Other factors which the High Court considered may play a role in weighing up the public policy considerations are the cogency of the evidence obtained, the ease with which the law may be complied with and the nature of the offence charged (Bunning v Cross at 78-80).

In this case, it cannot be said that the conduct arose from a deliberate disregard for the law. It is also clear that compliance with the provisions of the Act would not have been difficult. However, the failure to obtain a Certificate arose from a lack of understanding of the legislation. The evidence is cogent. It was not obtained by a deliberate illegal or improper conduct. I do not consider the conduct reckless. Finally, the offence charged is a serious one.
Taking into account all the relevant circumstances, I am not prepared to exercise the Public Policy discretion to exclude the evidence.
Finally, in my view neither the evidence of the telephone intercepts nor the evidence of the delivery of the parcel should be excluded in the exercise of the general unfairness discretion. (R v Lobban (2000) 77 SASR 24).
Accordingly, the applications to exclude the evidence contained in paragraphs 2 and 4 of the Rule 9 Notice (as amended) of the accused Domokos are refused.