R v Ellis

[2001] QSC 411

SUPREME COURT OF QUEENSLAND

CITATION:              R v Ellis [2001] QSC 411

PARTIES:                 R

v

FREDERICK JOHN ELLIS

(applicant)

FILE NO/S:               SC No 203 of 2000

DIVISION:               Trial Division

PROCEEDING: Application pursuant to s 592A of the Criminal Code

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:    2 November 2001

DELIVERED AT:     Brisbane

HEARING DATE:     29 and 30 October 2001

JUDGE:  White J

ORDER:The application to exclude the evidence contained in the Schedule (exhibit 1) as it relates to illegal activity on the part of a member of the Queensland Police Service at the trial of Frederick John Ellis is refused.

CATCHWORDS:       CRIMINAL     LAW     –     EVIDENCE     –     JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – ILLEGALLY  OBTAINED  EVIDENCE  –  PARTICULAR CASES – whether evidence relating to supply and purchase of  drugs  should  be  excluded  from  trial  on  the  ground  of illegality and/or impropriety – where purchase and possession

Crimes Act 1914 (Cth), s 15

Criminal Code (Qld) s 592A, s 594(3)

Drugs Misue Act 1986 (Qld)

Police Powers and Responsibilities Act 2000 (Qld), Ch 5

Bunning v Cross (1978) 141 CLR 54, considered

Re Gudgeon (1995) 83 A Crim R 228

Marriott v R (1995) 126 FLR 119, distinguished R v D’Arrigo [1994] 1 Qd R 603, distinguished R v Ellis [2001] QSC 270, considered

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R v Ireland (1970) 126 CLR 321, distinguished R v Stead [1994] 1 Qd R 665, considered Ridgeway v R (1995) 184 CLR 19, considered

COUNSEL:                Mr P Feeney for the applicant

Mr C Clarke for the respondent Crown

SOLICITORS:          Bernard Bradley & Associates for the applicant

The  Director  of  Public  Prosecutions  (Queensland)  for  the respondent Crown

[1]     Frederick John Ellis and Ronald Angelo Favaloro are jointly charged that between

8 April 1997 and 28 November 1997 at Brisbane they carried on the business of unlawfully trafficking in the dangerous drugs heroin and methylamphetamine.

[2]     The indictment contains four counts of jointly supplying heroin; seven counts of supplying  a  dangerous  drug  against  Ellis  alone;  two  counts  of  supplying  a dangerous drug against Favaloro alone; one count of possession of heroin against Favaloro; and one count of possession of a car and mobile phone used in connection with trafficking in dangerous drugs against Favaloro.

[3] By application brought pursuant to s 592A(2)(e) of the Criminal Code Ellis seeks to have  certain  evidence,  obtained  by  means  of  a  police  undercover  operation excluded from the trial on the ground that it is tainted by illegality similar to the basis on which evidence was excluded in R v D’Arrigo [1994] 1 Qd R 603.

[4] Favaloro has been arraigned and pleaded not guilty to the counts on the indictment which concern him. His trial has thus commenced, s 594(3). He filed an application dated 23 October 2001 in similar terms to that of Ellis dated

24 August 2001. There was some concern as to whether an application pursuant to s 592A could be heard and determined in respect of Favaloro given that procedures under that section are described as pre-trial procedures and his trial has now commenced. Even though a trial may be adjourned, and without considering the sufficiency of any reason for doing so, the consequence may well be that I would be the trial judge and in the absence of any arrangement to that effect, this may cause difficulty. These considerations became academic because Mr A Donaldson, counsel for Favaloro, undertook on behalf of his client to be bound by any ruling about the admissibility of this body of evidence in Ellis’application.

[5]     The  original  application  sought  a  wide  range  of  orders  and  directions  but

Mr Feeney, in effect, abandoned that application and sought an order that

“the evidence relating to the supply and purchase of the drugs set out in the schedule [exhibit 1] be excluded on the ground of illegality and/or impropriety.”

The schedule is a document in a form familiar in drug sentencing matters where there are a number of supply transactions.  It sets out in columns the counts on the indictment, the date and place of the offending activity, a description of the offence, the particulars of continuity and the result of analysis of the drugs obtained.

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[6]     Counsel were content to proceed on the basis that the schedule gave a sufficient description of the evidence sought to be excluded. Exhibit 3 is a transcript of a covert tape recording of conversations between Ellis, Favaloro and the covert police operative (“CPO”) which took place in a restaurant on 12 November 1997, not long before the closure of the operation, in which there was discussion about the supply of nine pounds of heroin for just under $1 million.

[7]     There is no criticism made of the personal conduct of the CPO vis-à-vis Ellis or that the admission of the impugned evidence would be unfair to him in the sense used in R v Ireland (1970) 126 CLR 321 at 334. The argument is concerned only with the well known principle expressed in Bunning  v  Cross (1978) 141 CLR 54 per Stephen and Aickin JJ at 74 which involves

“…   the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and    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.”

The unlawful conduct here is the purchase and possession of dangerous drugs contrary to the provisions of the Drugs Misuse Act 1986 (Qld) by the CPO.

[8]     In about April 1997 Ellis became the subject of investigation conducted by the Queensland Police Service (“QPS”) which suspected him of involvement in serious drug dealings.  The investigation was codenamed  “Operation Eastlake”.  A CPO who used the name Jeffries was introduced to Ellis by a National Crime Authority

(“NCA”)  registered  informant.    Their  meetings  and  conversations  were  tape recorded  and,  on  occasion,  monitored  and  photographed  by  a  police  mobile surveillance team.  These conversations entailed discussions about the supply of dangerous drugs by Ellis and/or Favaloro to the CPO and their meetings regularly involved the purchase of dangerous drugs from one or other or both of the accused. The meetings often took place in restaurants and hotels over a meal.

[9]     Shortly after each buy the CPO met his controller, handed over the drugs where they were unwrapped, photographed, checked for fingerprints, despatched to the Government Chemical Laboratory for analysis and then lodged at the QPS Central Exhibit Facility.

[10]     Operation  Eastlake  was  one  of  about  a  dozen  drug  investigations  operating  in Queensland at that time.  Chief Superintendent Kerry Dunne, then a Detective Superintendent  in  charge  of  the  Queensland  Drug  Investigative  Group,  gave evidence  in  this  application.    On  7  May  1997  he  arranged  a  meeting  with representatives of the NCA, the Australian Federal Police (“AFP”) and members of the QPS, largely, it would seem, because there was “intelligence from Ellis that the heroin was being brought into Australia in the passenger cabin of an [commercial] aircraft”, exhibit 2.  These Federal agencies agreed to participate in Operation Eastlake with the QPS as lead agency.

[11]     This application does not concern the involvement of the NCA or AFP although it was the subject of an unsuccessful application before Chesterman J to exclude

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evidence on the ground that it had been illegally obtained because members of the NCA and AFP concerned in Operation Eastlake had acted beyond the limits of their constitutional powers, (R v Ellis [2001] QSC 270).

[12]     Mr  Feeney  was  concerned  to  explore  with  Chief  Superintendent  Dunne  the supervision of the operation and what the understanding of the QPS was about the vulnerability  of  its  members  to  prosecution  for  illegal  conduct,  namely,  the purchase and possession of dangerous drugs contrary to the provisions of the Drugs Misuse  Act 1986, and whether there was any offer of or understanding about immunity from prosecution by the Director of Prosecutions (or Public Prosecutions, as the Office became known).

[13] In 1997 there was no legislative protection for members of the QPS to engage in unlawful activity in order to investigate serious offences and/or organised crime as is now provided for in Chapter 5 of the Police Powers and Responsibilities Act

2000 (Qld).  Such a regime of controlled operations for obtaining evidence about certain offences relating to narcotic goods was then contained in the  Crimes Act

1914 (Cth), s 15. Indeed there was discussion on 20 May 1997 during a joint briefing on the progress of Operation Eastlake as to whether these provisions of the Crimes Act applied at that point in the investigation and it was concluded that they might do so when an importation issue arose.

[14]     The approach of the QPS to drug operations in 1997 involving CPOs and drug purchases   from   targeted   persons   was   governed   to   a   large   extent   by   the recommendations of the Honourable W J Carter QC in his report of March 1993, arising out of the Royal Commission of Inquiry into Operation Trident.  By the time of the Inquiry the QPS had started to address a great many of the concerns raised when the facts and circumstances of Operation Trident became more widely known in the QPS.   The Inquiry was established to investigate an operation conducted by the QPS set up to deal with organised car theft in the Beenleigh/Gold Coast district. It involved police infiltrating the ranks of persons engaged in stealing cars for the purpose of resale.  In the course of Operation Trident some 68 motor vehicles were stolen from unknowing members of the public who thereby suffered loss with the consent and/or active participation of members of the QPS.

[15]     In December 1991 the Court of Criminal Appeal handed down its judgment in D’Arrigo.    The  court  quashed  the  conviction  which  had  been  recorded  in  the District Court when D’Arrigo had been found guilty of the unlawful possession of a motor vehicle with intent.  The vehicle was one which had been stolen in the course of  Operation Trident.  The prosecution case depended on the evidence of one Riesenweber, a police informant, who had been given an indemnity in the name of the then Attorney-General against prosecution in respect of future illegal conduct done for the purpose of assisting police in Operation Trident.  In their judgment each member of the court made an adverse finding concerning the indemnity from prosecution  which  had  been  granted  to  Riesenweber  and  the   “unrestrained illegality” of the way in which the evidence was collected.

[16]     The court concluded that the executive authority of the State was not enabled by the prerogative power to grant an indemnity against prosecution for future misconduct, Macrossan CJ at 604, de Jersey J at 609 and Dowsett J at 610.  In R v Stead [1994]

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1 Qd R 665 in respect of the same indemnity the Court of Appeal put this beyond question at 668,

“The common law recognised the existence of a power to pardon as an aspect of the Royal prerogative and one that was capable of being delegated.  What was disputed over a long period was the wider claim by the Crown to exercise a power of pardoning an offence before its commission.  It implied an authority in the Crown to dispense with the application of the law to a particular individual or to suspend the operation of laws in general.  Attempts to invoke such a power led directly to the Revolution of 1688 and the adoption of the Declaration of Right.  Articles 1 and 2 condemned as  “illegal” the purported exercise of the power of suspending or dispensing with laws, ‘as it hath been assumed and exercised of late’.”

[17]     Relating that fundamental principle to the present day the court held at 669

“It follows, that while the Governor acting on the advice of the Premier has power to grant a pardon in respect of a past offence, neither the Governor, nor any delegate from him or her, has the power to suspend or dispense with the laws or their execution, or with any statute: cf. Fitzgerald v Muldoon [1976] 2 NZLR 615, 662-

623.  The attempt to do so by what purported to be an indemnity against  prosecution  for  future  offences  granted  by  the  former Attorney-General  in  favour  of  Reisenweber  on  5  October  1989 therefore was, to use the words in ss 1 and 2 of the  Bill of Rights,

“illegal” and “void and of no effect”. Hence the indemnity was incapable of prevailing against the provisions of section 7 of the Criminal  Code  making  a  person  criminally  responsible  for  an offence committed by another that was counselled or procured or assisted by that person.”

[18]     As to the admissibility of the evidence obtained by Reisenweber, the court in D’Arrigo  condemned the direct and indirect involvement by police in assisting criminals to steal and illegally dispose of motor vehicles, the property of innocent citizens whose loss could never be adequately recompensed. Macrossan CJ observed at 605

“The competing considerations were, on the one hand, the interests of the State in the conviction and punishment of offenders and, on the other hand, the further interests of the State in maintaining the integrity of the criminal processes and upholding observance of the law by the State’s instrumentalities.  If the courts were prepared to overlook an unrestrained illegality of this kind without offering any discouragement to it, at what point would it ever be appropriate to demur and offer objection?”

As a consequence the court held that Reisenweber’s evidence was obtained “at too high a price” and ought to have been excluded.

[19]     The Court of Appeal (Davies, Pincus and McPherson JJA) took a different view about similar evidence in Stead.  The appellant was another person implicated in car

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thefts some of which were stolen under the auspices of Operation Trident while others were not.  The court said at 673

“Without expressing a concluded view on the correctness of the decision  in   D’Arrigo,  we  are  of  opinion  that  the  evidence  of Reisenweber was rightly admitted at the trial in this case.”

[20]     It is the approach of the Court of Criminal Appeal in  D’Arrigo which Mr Feeney urges, submitting that  “the closeness of the connection between the illegality and the obtaining of the evidence” would dictate the exclusion of the evidence, per Dowsett J  in  D’Arrigo at 611. Mr Feeney further submitted that the present position with undercover drug operations and Operation Eastlake in particular is founded upon a tacit understanding with the Director of Public Prosecutions that there will be no prosecution brought against members of the QPS engaged in illegal activity. The Trident Inquiry Report, accepting that an indemnity in futuro was invalid, noted at p 170 that it was inappropriate that such immunity be given tacitly. The evidence of Chief Superintendent Dunne indicated that while members of the QPS  could  expect  not  to  be  charged  with  offences,  if  they  engaged  in  illegal conduct while carrying out QPS orders in a controlled operation,  that would only be so if there was adherence to a strictly controlled official regime of supervision.

[21]     In  the  absence  of  any  legislative  permission  to  engage  in  “controlled”  illegal activity  the  QPS  could  have  desisted  altogether  from  engaging  in  undercover operations  which  would  involve  illegal  conduct  by  QPS  members.    Or,  as Mr Feeney submitted, the QPS could make use of legislatively authorised modern investigative tools such as telephone interceptions, installation of covert listening devices and cameras, and outside surveillance.

[22]     The Trident Inquiry Report recognised, as had many judicial decisions and writings from other jurisdictions prior thereto that certain forms of criminal activity defy detection by the use of the conventional methods of criminal investigation and that the undercover operation is a legitimate investigative policing tool.  The Report noted at p 129,

“This form of crime is often intensely secretive in character; rarely will the offender acknowledge his guilty participation; so often the

“business”  of  the  criminals  is  conducted  behind  a  facade  of commercial  respectability  at  the  same  time  making  use  of  legal forms and the skill of the law’s practitioners.”

As a consequence of research and the evidence presented to the Inquiry Mr Carter concluded at p 151 that there was a broadly based acceptance of the practise of undercover operations.

“The issue therefore is not whether the covert operation should be used,  but  whether,  and  if  so  to  what  extent,  there  is  a  need  to exercise control over the establishment and control of operations, and, in that event, the degree and form of control.”

This was seen as the key to acceptance, in a public policy sense, of undercover police operations which were so starkly absent in Operation Trident. A limited

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legislative regime was recommended but this was not implemented until the Police

Powers and Responsibilities Act 2000.

[23]     By the time of the Inquiry, supervising committees had been established by the QPS for covert operations.  Chief Superintendent Dunne said that the control committee had the benefit of the advice of an experienced lawyer to overview the way in which evidence was obtained, so as not to prejudice the successful prosecution of targets  which  had  been  recommended  by  the  Trident  Inquiry.    The  Report commented favourably on the polices and procedures then developed by the QPS in respect of covert operations, covert police operatives and informants, p 172.

[24]     The QPS guidelines which governed Operation Eastlake had been formulated from the recommendations discussed in the Trident Inquiry Report and expanded further over  time.    They  included  overview  by  a  management  committee,  the  Ethical Standards   Committee   and,   if   necessary,   the   Criminal   Justice   Committee. Chief Superintendent Dunne recalled a meeting with Mr R Miller QC, the then Director of Prosecutions in either 1995 or 1996 in respect of a concern about the conduct of a particular CPO at which Mr Miller indicated that it was for the Commissioner of Police to decide whether proceedings were to be commenced against any police officer arising out of alleged unlawful conduct in the course of undercover  police  operations.    He  expressed  satisfaction  with  the  guidelines. Chief Superintendent Dunne was aware of relevant legal decisions in Australia and knew that the courts regularly admitted into evidence at the trial of persons charged with  Drugs Misuse Act   offences   the   evidence   of   covert   undercover   police operatives who had purchased drugs from the accused.

[25]     There is no suggestion of conduct in Operation Eastlake of the kind which led to condemnation and exclusion of evidence in, for example,  D’Arrigo,  Ridgeway v The Queen (1995) 184 CLR 19 or the evidence of importation in Marriott v The Queen (1995) 126 FLR 119. There were no victims of the unlawful conduct which had been such a seriously aggravating feature in Operation Trident. Here the drugs were purchased and immediately taken out of circulation. The evidence which is proposed to be tendered against Ellis is cogent and reliable. Mr Feeney submitted that the contents of exhibit 3 would raise a strong prima facie case of trafficking against the accused without the necessity of admitting evidence in which the CPO engaged in the unlawful activity of purchasing and possessing the dangerous drugs. But if the evidence is otherwise admissible there is no compelling argument for depriving  the  prosecution  of  its  best  evidence.    Similarly,  if  illegally  obtained evidence is excluded and a criminal thereby escapes punishment, Ridgeway requires that that consequence be borne by the community.

[26]     There is a significant public interest in securing the detection and conviction of persons  who  engage  in  trafficking  in  dangerous  drugs  particularly  when  that involves large quantities.  There is no doubt as to the prevalence of drug dealing and the difficulty of detecting organised crime associated with the importation, production  and  distribution  of  prohibited  drugs  is  well  known.    As  the  court observed in Stead, it is difficult to see any public benefit in excluding the impugned evidence in this case.  The public interest very much favours its admission.

[27]     The application to exclude the evidence contained in the schedule (exhibit 1) as it relates to illegal activity on the part of a member of the Queensland Police Service

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at  the  trial  of  Frederick  John  Ellis  for  the  offences  set  out  in  the  indictment presented 17 April 2000 is refused.