COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MATHESON, J
CWDS
Criminal law and procedure - Admissibility of evidence Of controlled buys of heroin - consideration of the Criminal Law (Undercover Operations) Act, 1995 and whether prosecutor could invoke the Act - retrospective operation thereof - whether in any event Ridgeway's case was distinguishable on the facts - search warrants issued under s52 of the Controlled Substances Act - challenge to validity thereof- whether inspector having the overall control of the proposed raids should have issued the warrants - whether in any event evidence of what was found on raids and subsequent conversations with occupants should be admitted - whether evidence of identification of two of the accused should be excluded - whether an identification parade was appropriate in the circunistances - failure of the prosecution to call informant and his de facto wife on the voir dire - whether a stay should be granted until their evidence was called by the prosecutor - all applications dismissed.
George v Rochett and Another (1990)93 ALR 483; R v Conley (1979) 21 SASR
166; Sutherland v R Unrep Jt 4346 delivered 22/12/1993 (available on SCALE); The Queen v Apostolides (1984)154 CLR 563; Bunning v Cross (1978)141 CLR 54, applied. Ridgeway v The Queen (1995) 129 ALR 41; The Queen v Hallam and Karger
(1985) 42 SASR 126; R v Hayles (1990)54 SASR 549; Ngalkin (1984)12 A Crim R
29, distinguished. The Queen v Giorgi and Romeo (1982)31 SASR 299; The Queen v Romeo (1982)30 SASR 243 Tran Nominees v Scheffler (1986)42 SASR 361, considered.
HRNG ADELAIDE, 11-14, 17 July 1995 #DATE 26:7:1995 #ADD 8:9:1995
Counsel for Crown: Mr J A Powell
Solicitors for Crown: DPP (SA)
Counsel for accused Kokosi: Mr T M McRae
Solicitors for accused Kokosi: R-M A Cadd and Associates
Counsel for accused Albu: Mr M Barnett
Solicitors for accused Albu: Patsouris and Associates
Counsel for accused Gheorgita: Mr R N Mayne
Solicitors for accused Gheorgita: Sykes Bidstrup
ORDER
Applications dismissed
JUDGE1 MATHESON J All three accused made a number of applications prior to the empanelment of the jury, and I heard evidence on a voir dire. Upon its conclusion, I dismissed all applications and said I would give my reasons later, which I now do.
2. The information herein reads:
"MARIN GHEORGHITA
is charged with the following Offence
First Count Statement of Offence
Selling Heroin. (Section 32(l)(c) of the Controlled
Substances Act, 1984).
Particulars of Offence
Marin Gheorghita on the 3rd October, 1991 at Osborne,
knowingly sold heroin a prohibited substance.
ISABELLA LOREDANA KOKOSI
is charged with the following offence
Second Count Statement of Offence
Taking Part in the Sale of Heroin. (Section 32(l)(d) of the
Controlled Substances Act, 1984).
Particulars of Offence
Isabella Loredana Kokosi on the 3rd October, 1991 at
Osborne, knowingly took part in the sale of heroin, a
prohibited substance.
MIHAIL ALBU
is charged with the following offence
Third Count Statement of Offence
Selling Heroin. (Section 32(1)(c) of the Controlled
Substances Act, 1984).
Particulars of Offence
Mihail Albu on the 8th October, 1991 at Osborne, knowingly
sold heroin, a prohibited substance.
MARIN GHEORGHITA
is charged with the following offence
Fourth Count Statement of Offence
Selling Heroin. (Section 32(1)(c) of the Controlled
Substances Act, 1984).
Particulars of Offence
Marin Gheorghita on the 11th October, 1991 at Ridleyton,
knowingly sold heroin, a prohibited substance.
ISABELLA LOREDANA KOKOSI
is charged with the following offence
Fifth Count Statement of Offence
Taking Part in the Sale of Heroin. (Section 32(l)(d) of the
Controlled Substances Act, 1984).
Particulars of Offence
Isabella Loredana Kokosi on the 11th October, 1991 at
Ridleyton, knowingly took part in the sale of heroin, a
prohibited substance.
MARIN GHEORGHITA AND MIHAIL ALBU
are charged with the following offence
Sixth Count Statement of Offence
Possessing Heroin for Sale (Section 32(l)(e) of the
Controlled Substances Act, 1984).
Particulars of Offence
Marin Gheorghita and Mihail Albu on the 16th November, 1991
at Mansfield Park, knowingly had heroin, a prohibited
substance in their possession for the purpose of selling
it."
3. The background facts on the prosecution case are as follows. An informant named Jeff Lynch told a police officer, Detective Senior Constable Harrison, that he could put them in touch with persons dealing in heroin. In consequence on 3 October, 1991 an undercover officer from the Drug Task Force, Detective Senior Constable Harvey, went to a house at No 5 Nautilus Court, Osborne where Lynch was living with his girlfriend Lynette Rowe. He was instructed to make what has been called a "controlled buy" of heroin. He was in plain clothes and in an unmarked car. There were other police in attendance in that area, but out of sight. Harvey and Lynch went to a telephone box in Victoria Road, where Lynch made a telephone call. Then they went back to Lynch's house and waited. About an hour after the phone call, a yellow Ford Telstar pulled up on Victoria Road, a short distance from its junction with Nautilus Court. The Ford Telstar was registered in the name of the accused Kokosi. The driver, a female, and her passenger, a male, got out of the Telstar and walked along Victoria Road and into Nautilus Court, stopping briefly at a rubbish bin. They then went into the premises at 5 Nautilus Court and there was some conversation with Lynch that Harvey in another room could hear, but was not a party to. The man and woman left the house, went back to the rubbish bin, then returned to the house. Harvey then went into the kitchen where he saw the man and woman. The prosecution allege they were the accused Gheorghita and the accused Kokosi. Lynch then introduced Gheorghita to Harvey, Lynch calling Gheorghita "Mick" and calling Harvey "Peter".
4. Harvey told Gheorghita that he wanted to purchase two weights of heroin, (a weight is an expression for a gram of heroin). Gheorghita expressed some reluctance in dealing with Harvey. After a while, Harvey said "Come on, what do you want me to do?" Harvey said "I have got the cash, all right, how much". Gheorghita said "300". Harvey said "a weight?" Gheorghita said "Yes, 300". Harvey said "Okay, here", and produced cash, and counted out $600. Gheorghita again questioned whether Harvey could be trusted, and Kokosi, who was present throughout said "Trust him".
5. Gheorghita gave Harvey two small balls of powder which were packaged in plastic. When Harvey offered Gheorghita the sum of $600, Gheorghita said "You keep it, go on, you're a cop, you got me". Harvey said "What is this shit. Do you want the money or not?" Gheorghita replied "okay man, okay, business", and took the money.
6. Those facts are the basis for the allegations in counts 1 and 2, the prosecution alleging that Gheorghita was selling the heroin and that Kokosi was taking part in the sale by her presence and by being the driver, and saying in the conversation, "Trust him".
7. Harvey then asked Gheorghita what he should do if he wanted more heroin. Gheorghita told Harvey to get a piece of paper and write down a telephone pager number which Gheorghita gave him. Harvey wrote it down. Gheorghita told Harvey that if he wanted to do further business, he should ring that number, quote the number 9 and that would identify him as Harvey. He should then leave a bogus telephone number, and then a further number, 1, 2, 3 or whatever to indicate how many weights of heroin he wanted.
8. Gheorghita said that such transactions would be conducted at McDonalds restaurant on the intersection of South and Torrens Roads at Ridleyton, and told Harvey that if he followed that procedure either Gheorghita or a friend would meet him at the restaurant. Gheorghita and Kokosi left the house, but returned a few moments later and insisted that Harvey leave first in his car, which Harvey did. The two balls of powder which Harvey purchased were later submitted for forensic analysis, and were found to contain heroin.
9. There was an attempt on 7 October to set up a further controlled buy. Harvey went to McDonalds restaurant at Ridleyton, went through the prescribed procedure, telephoning the pager number etc and finishing with a number two for two weights of heroin. He waited for two hours but there was no response. The following day Harvey went back to Lynch's address at 5 Nautilus Court, and again other police were in attendance in the area out of sight. Harvey and Lynch again went to the telephone box, and Lynch made a telephone call. They went back to Lynch's place, waited for a while, and then set off to go to the telephone box to make another call. Just as they set off, a red Ford motor car turned up. That car was seen and photographed by other police. It was registered in the name of the accused Albu. Lynch and Harvey stopped. The man in the Ford was introduced to Harvey as "Michael", and they went into the house. There was some conversation. Harvey said to Albu, "how come you today?" Albu says, "I know you now, now it can be me and him." Harvey said, "I don't like too many faces." Albu said, "No more. It is only me or Mick, from now on we will be together." Harvey asked for two weights, which Albu agreed to sell him at $300 per weight. There was some discussion about the attempted meeting the day before at McDonalds, which had fallen through. Harvey complained. Albu said, "I know, but Mick's away. I didn't know what you looked like, then Mick was drunk the time before. Sorry, it won't happen again. Next time, half an hour, you'll have it. But if you need more then I can just go home and get it. No more problems." Albu produced two balls of powder, packaged again in plastic. Harvey gave him $600. Albu then left, promising Harvey that either he or Mick would meet him next time he rang. He gave Harvey $40 for petrol money. Those balls of powder were also analysed, and each contained heroin. That is the background to the allegations to count three on the information.
10. On 11 October, Harvey went to McDonalds, went through the procedure of phoning the numbers, and entering the number 4 for four weights. There were other police in attendance in the area again, and out of sight. He waited some time, then made another call. Six minutes later the yellow Ford Telstar turned up, driven by Kokosi, with Gheorghita in the front passenger seat. The Telstar stopped in front of Harvey's vehicle, and Gheorghita beckoned Harvey to follow them. They drove off into Paget Street, Ridleyton. Harvey then obtained four weights for $1,000 from Gheorghita, a discount being given for what was a larger weight. That is the background to the allegations in counts 4 and 5, Gheorghita being charged with selling the heroin, and Kokosi being charged with taking part in that as the driver. On the same occasion, Harvey told Gheorghita that he wanted to purchase an ounce of heroin. Gheorghita replied that he could sell him an ounce for $7,000. He was then asked if he could supply two ounces for between 10 to $12,000, and Gheorghita replied "I don't know. The ounce $7,000. I going now." He got into the Telstar and drove off. Those four balls of powder were also analysed and each contained heroin.
11. On 4 November, Harvey went to McDonalds and went through the procedure. He left a message indicating that he did not want to purchase, but that he wanted a meeting, putting a zero on the end, instead of a number. Albu turned up at McDonalds in the red Ford. Together they went into the restaurant where Albu got some food, and they then went and talked in Albu's car. Harvey told Albu that he had seen Mick, and that he was after an ounce, "good quality stuff". Albu told Harvey that it cost 10,000. Harvey said that Mick had previously said $7,000. Albu said, "This is good new gear, the best available. You could cut it two times. It would still be good for Adelaide, no complaints." Then Albu left. On that occasion again, the Ford was photographed by other police and the photographs show Albu is the driver. There were more unsuccessful attempts to set up further buys on 11, 12, 13 and 14 November. On each occasion Harvey went to McDonalds, rang the code and waited, but nothing eventuated.
12. On 16 November, Harvey saw the yellow Telstar outside premises at 6 King Street, Norwood. The detectives decided to conduct what is referred to as a raid on those premises, and also on premises at 31 Kent Street, Mansfield Park, the police having by then obtained information linking Albu with the latter address. Search warrants were issued by an Inspector Paynter. The police then made simultaneous raids on the two addresses.
13. At Kent Street, Mansfield Park, they found Albu in bed in a bedroom. Also in that bedroom they found a brown plastic stool, which had a cap that you could take off. Inside that were two bundles of notes, totalling $1,800, and a set of scales. They also found $280 cash inside a pocket of a coat in the wardrobe, together with another set of scales and numerous plastic bags. Also in that house, but in another bedroom, were papers bearing the names Marin Gheorghita and Isabella Kokosi. The police then searched the backyard. The red Ford was there. In a hole in the grass, a jar containing three balls of powder packaged in plastic was found. They were later analysed and found to contain heroin. That is the background to the allegations in count six, whereby Gheorghita and Albu are jointly charged with being in possession of the concealed heroin for the purpose of selling it.
14. While the police were at Kent Street, they heard a telephone pager beeping. It was located under Albu's bed. That pager, which was leased through Telecom, had a subscriber number, which was the number that Gheorghita had given Harvey on the very first occasion.
15. Albu was questioned. He said he had lived at Kent Street for three to four months. He said he lived there with Gheorghita. When asked about the money, scales and heroin located on the premises, he denied any knowledge of them. He denied having sold any heroin to Harvey on 8 October or having discussed with Harvey on 4 November the possible sale of an ounce of heroin.
16. Meanwhile, police officers had entered the premises at 6 King Street, Norwood. Gheorghita and Kokosi were found in a bedroom. Harvey recognised Gheorghita and Kokosi as the persons who he had had earlier dealings with. Gheorghita and Kokosi were then separately questioned by other police. It was put to Gheorghita: "You have been identified ... as being a person who was involved in the sale of heroin to another person, do you understand that?" Gheorghita replied: "I do understand but, no, I didn't." A Romanian interpreter was obtained. Gheorghita was then further interviewed. He told police he was unemployed and lived with Albu, who he called Michael, at 31 Kent Street, and that Isabella Kokosi was his girlfriend. He denied selling heroin to Harvey on 3 and 11 October, and denied having anything to do with the heroin and money located at Kent Street.
17. Kokosi was also questioned. She told police she lived at Ovingham with her mother. She said she was at 6 King Street for the purpose of visiting a friend. She denied any knowledge of the sales of heroin on 3 and 11 October.
18. All three accused seek an order that the evidence relating to the controlled buys of heroin by members of the Drug Task Force be excluded on the authority of Ridgeway v The Queen (1995) 129 ALR 41, and I propose to deal with that application first.
19. Whether the police evidence of the controlled buys should be excluded; Before examining the relevant evidence and the argument in support of the application, it is necessary to refer to Ridgeway's case. Ridgeway was convicted in the District Court of South Australia of an offence under s233B(1)(c) of the Customs Act, 1901 (Cth) ("the Act"). Particulars alleged against him being that he "without reasonable excuse had in (his) possession a prohibited import, namely 140.7 grams of heroin being not less than the trafficable quantity, to which s233B of the Customs Act applies, and which had been imported into Australia in contravention of the Customs Act, 1909". The background facts are set out in the judgment of Mason CJ, Deane and Dawson JJ at pp43-45:
"The appellant and a man named Lee were in prison together
in South Australia during the years 1985 to 1987. Both were
serving sentences for drug-related offences. On his release
from prison in 1987, Lee was deported to Malaysia where he
became a 'registered informer' for the Royal Malaysian
Police Force. The appellant was released from prison on
parole in February 1989.
In the latter half of 1989, the appellant, who was unaware
of Lee's association with the Royal Malaysian Police Force,
contacted Lee for the purpose of seeking to arrange, through
him, the purchase of heroin for importation into and sale
within Australia. During that period, the appellant, in
breach of his parole conditions and using his brother's
passport, made two trips to Singapore in the course of which
he had personal contact with Lee. In his dealings with the
appellant, Lee acted under the instructions of Assistant
Superintendent Thian Soo Chong (Chong) of the Anti Narcotics
Branch of the Royal Malaysian Police Force who was, in turn,
in contact with a Superintendent Butler (Butler) who was the
Liaison Officer for the Australian Federal Police in Kuala
Lumpur. The information which had been received by Chong
from Lee and passed on to Butler made clear that, if Lee
could not arrange the supply of heroin, the appellant could
'go to another person in another place'.
In these circumstances, the Australian Federal Police,
acting in conjunction with the Malaysian Police, set up
'Operation Decade' which involved what has been described as
a 'controlled' importation and delivery of heroin. The
starting point of the operation was the purchase by Lee,
accompanied by Chong, of heroin in Malaysia. While the
evidence is not clear, the money used for the purchase may,
at least in part, have been obtained by Lee from the
appellant during his second visit to Singapore. After the
purchase, Chong took and retained physical possession of the
heroin. In December 1989, pursuant to arrangements with the
Singapore Police, Chong flew to Singapore with the heroin.
He was accompanied by Lee. On their arrival in Singapore,
the heroin was delivered into the custody of the Singapore
Police. On the following day, the heroin was returned to
Chong who, accompanied by Lee, flew with it to Australia.
They arrived, with the heroin in Chong's physical
possession, at Adelaide Airport on 29 December 1989.
Lee and Chong had each received a visa from the Australian
High Commission in Malaysia. Those visas had been issued on
the application of the Australian Federal Police on the
basis that the two men were involved in a 'controlled
delivery' of narcotics to Australia and that the Royal
Malaysian Police Force was in agreement with, and
cooperating in, the delivery. Upon their arrival, Chong and
Lee were met at the airport by officers of the Australian
Federal Police. Chong was able to clear Customs at the
airport with the heroin by virtue of arrangements made
between the Australian Federal Police and the Australian
Customs Service. Those arrangements were made pursuant to a
Ministerial Agreement of June 1987 and a letter of request
of 28 December 1989 from the Australian Federal Police to
the Australian Customs Service. That Ministerial Agreement
is directed to defining the relationship between, and areas
of responsibility of, the Australian Customs Service and
crime enforcement authorities, including the Australian
Federal Police, with respect to 'Narcotic Drug Law
Enforcement'. By para D7, it provides, among other things,
for a request to be made for the transfer of Customs control
from the Australian Customs Service to the Australian
Federal Police in circumstances 'where certain persons,
goods, ships or aircrafts, suspected or known to be carrying
or having an involvement in drugs, are required by the
Australian Federal Police ... to be exempted from detailed
Customs scrutiny and control'. The Australian Federal
Police's letter of request of 28 December 1989 was made
pursuant to para D7.
From the time of the importation of the heroin, the
appellant was under surveillance by the Australian Federal
Police. Lee met the appellant on several occasions and
provided him with very small samples of the heroin. On
31 December 1989, the appellant went to a hotel room for a
meeting with Lee and Chong. A short time later the
appellant and another person left the room carrying a camera
bag containing 203 grams of heroin (140.4 grams pure
heroin). The appellant and the other men were apprehended
by officers of the Australian Federal Police. The sum of
$9000 cash, being an amount paid by the appellant on account
of the purchase price for the heroin, was in the possession
of Chong and Lee in the hotel room. Lee was paid the
equivalent of the $9000 cash as a reward for his part in the
operation.
It has, at all times, been common ground that the
importation of the heroin was contrary to s233B(1)(b) of the
Act which provides that any person who imports into
Australia any prohibited imports to which s233B applies is
guilty of an offence under the section. The person who
unlawfully brought the heroin into Australia was Chong who,
on the facts as disclosed at the trial, was guilty of an
offence under s233B(l)(b) in that he imported into Australia
prohibited imports to which s233B of the Act applied. In
truth, however, the whole of the unlawful importation was
arranged by and under the auspices of the Australian Federal
Police and the police involvement reached upwards to a high
level of command. Realistically speaking, the illegal
importation of the heroin was 'controlled' and effected
(through the services of Chong) by the Australian Federal
Police. Clearly enough, the objective acts of the members
of the Australian Federal Police directly involved in the
importation of the heroin by Chong came within s233B(1)(d)
of the Act which provides that any person who 'aids, abets,
counsels, or procures, or is in any way knowingly concerned
in, the importation, or bringing, into Australia of any
prohibited imports to which this section applies' is guilty
of an offence. In that regard, the Commonwealth Director of
Public Prosecutions expressly conceded that the Australian
authorities 'had either counselled or at least were prepared
to aid and abet' the illegal importation. The effect of
s235 of the Act was that, in circumstances where a
trafficable quantity of heroin was involved, the maximum
penalty for each of the offences presumably committed by
Chong and members of the Australian Federal Police was
imprisonment for 25 years and a fine of $100,000."
20. On the topic of the discretionary exclusion of evidence, their Honours said at p48:
"At least since Bunning v Cross (1978) 141 CLR 54; 19 ALR
641 it has been 'the settled law in this country' ibid at
CLR 69 per Stephen and Aickin JJ (with the concurrence of
Barwick CJ) that a trial judge has a discretion to exclude
prosecution evidence on public policy grounds in
circumstances where it has been obtained by unlawful conduct
on the part of the police. That discretion is distinct from
the discretion to exclude evidence of a confessional
statement on the grounds that its reception would be unfair
to the accused. See, eg, McDermott v R (1948) 76 CLR 501 at
513-15; R v Lee (1950) 82 CLR 133 at 148-55. The discretion
extends to the exclusion of both 'real' (or non
confessional) evidence Bunning v Cross (1978) 141 CLR at 75;
Cleland v R (1982) 151 CLR l at 19-20, 23; 43 ALR 619;
Pollard v R (1992) 176 CLR 177 at 196, 201; 110 ALR 385;
Foster v R (1993) 67 ALJR 550 at 554; 113 ALR 1 at 7 and
confessional evidence. See Pollard v R (1992) 176 CLR at
196-7, 201. As Barwick CJ pointed out in R v Ireland (l970)
126 CLR 321 at 335, in a judgment with which the other four
members of the court agreed, ibid at 336, the rationale of
the discretion is that convictions obtained by means of
unlawful conduct 'may be obtained at too high a price'. In
its exercise, a trial judge must engage in a balancing
process 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'. Bunning v Cross
(1978) 141 CLR at 74 per Stephen and Aickin JJ. The basis
in principle of the discretion lies in the inherent or
implied powers of our courts to protect the integrity of
their processes. In cases where it is exercised to exclude
evidence on public policy grounds, it is because, in all the
circumstances of the particular case, applicable
considerations of 'high public policy', ibid, relating to
the administration of criminal justice outweigh the
legitimate public interest in the conviction of the guilty.
Clearly enough, in a criminal trial there is a distinction
between a discretion to exclude particular evidence and a
discretion to exclude any evidence at all which tends to
establish the accused's guilt of the alleged crime or of an
element of it. None the less, the existence of the
discretion to exclude evidence procured by unlawful conduct
on the part of law enforcement officers provides strong
support, by way of analogy, for the recognition of a
discretion to exclude evidence of the accused's guilt either
of an alleged crime or of an element of it in circumstances
where the actual commission of the crime was procured by
such unlawful conduct." At pp54-55, their Honours said:
"References in this judgment to an offence being 'procured'
by illegal conduct on the part of law enforcement officers
are intended to refer to two distinct, but possibly
overlapping, categories of case. The first category
consists of cases in which the police conduct has induced an
accused person to commit the offence which he or she has
committed. In that category of case, the public interest in
the conviction and punishment of those guilty of crime is
likely to prevail over other considerations except in what
we would hope to be the rare and exceptional case where the
illegality or impropriety of the police conduct is grave and
either so calculated or so entrenched that it is clear that
considerations of public policy relating to the
administration of criminal justice require exclusion of the
evidence. The other category of case is where illegal
police conduct is itself the principal offence to which the
charged offence is ancillary or creates or itself
constitutes an essential ingredient of the charged offence.
An example of that category is a case where a person is
charged with receipt or possession of stolen property in
circumstances where not only the supply, but the actual
theft, of the stolen property had been organized by the
police for the purpose of obtaining the conviction of the
person to whom it is supplied. See, eg D'Arrigo (1991) 58 A
Crim R 71. In that category of case, the police illegality
and the threat to the rule of law which it involves assume a
particularly malignant aspect. Even in such a case, if the
police conduct is disowned by those in higher authority and
criminal proceedings have been instituted against the police
as well as the accused, it is unlikely that considerations
of public policy relating to the integrity of the
administration of criminal justice would require the
exclusion of evidence either of the accused's offence or of
the particular element of it created by the police
illegality. If, however, the illegal police conduct would
appear to be condoned by those in higher authority and it
does not appear that criminal proceedings have been brought
against the police, those considerations of public policy
will be so strong that an extremely formidable case for
exclusion will be raised. Indeed, if the courts were
prepared to allow curial advantage to be derived from the
police illegality in such circumstances, there could be no
satisfactory answer to Macrossan CJ's rhetorical question,
ibid at 73, 'at what point would it ever be appropriate to
demur and offer objection?'" Brennan J (as he then was) said at p65:
"Assistant Superintendent Chong committed the crime of
importing the heroin into Australia in contravention of
s233B(1)(b) of the Customs Act in order to create one of the
elements of the offence with which it was hoped to charge
Ridgeway and with which he was in fact charged under
s233B(1)(c) of the Customs Act. Assistant Superintendent
Chong's crime was intentional, it was committed in execution
of a settled and deliberate policy on the part of the
Australian Federal Police, it was a grave offence for which
the parliament has prescribed a maximum penalty of a fine
not exceeding $100,000 or imprisonment for a period not
exceeding 25 years, or both, s235(2)(d)(i) and Sch VI of the
Customs Act. To admit evidence of the commission of that
offence in order to establish as against Ridgeway that the
heroin of which he and Harvey were in possession had been
imported into Australia in contravention of the Customs Act
by Assistant Superintendent Chong would be an encouragement
to the Australian Federal Police to continue to flout the
parliament's unqualified prohibition against the importation
of heroin, especially in trafficable quantities (that is, 2
grams), Sch VI. This was not a case where the evidence
related to the conduct of the offender; it was a case where
the offender was charged by reason, inter alia, of the
criminal conduct of an agent of the Australian Federal
Police. All evidence of the illegal importation ought to
have been excluded by the trial judge."
21. All members of the court, other than McHugh J, held that the learned trial Judge should have ruled that all evidence tendered to show that the heroin supplied to the appellant had been, or was reasonably suspected of being illegally imported, should be rejected on public policy grounds. The appeal was allowed, the appellant's conviction was quashed and a permanent stay granted.
22. In the light of the argument before me, I add a reference to what Mason CJ, Deane and Dawson JJ said at p58:
"... in the context of the fact that deceit and infiltration
are of particular importance to the effective investigation
and punishment of trafficking in illegal drugs such as
heroin, it is arguable that a strict requirement of
observance of the criminal law by those entrusted with its
enforcement undesirably hinders law enforcement. Such an
argument must, however, be addressed to the Legislature and
not to the courts. If it be desired that those responsible
for the investigation of crime should be freed from the
restraints of some provisions of the criminal law, a
legislative regime should be introduced exempting them from
those requirements. In the absence of such a legislative
regime, the courts have no choice but to set their face
firmly against grave criminality on the part of anyone,
regardless of whether he or she be government officer or
ordinary citizen. To do otherwise would be to undermine the
rule of law itself." And at p66, Brennan J said:
"As a technique of law enforcement, the so-called
'controlled' importation of prohibited imports may be an
acceptable technique for the detection and breaking up of
drug rings but, if that be so, the law enforcement agencies
must address their concerns to the parliament. So long as
the unqualified terms of s233B(1)(b) reveal the parliament's
intention to prohibit all persons, including the law
enforcement agencies, from importing heroin, it is not for
the courts to encourage the Executive branch of government
to sanction a deliberate course of contravention. The
Executive branch of government cannot dispense its officers
from the binding effect of the laws prescribed by the
parliament, Clough v Leahy (1904) 2 CLR 139 at 155-6; A v
Hayden (No 2) (1984) 156 CLR 532 at 540, 562, 580-2, 588-9,
592; 56 ALR 82. If law enforcement agencies apply for an
amendment of the laws to permit the employment of detection
methods such as those used in this case, it will be for the
parliament to consider whether controls should be
legislatively prescribed. The parliament might impose
conditions upon the employment of those methods. The
parliament might place responsibility for authorising the
importation of prohibited imports for detection purposes
upon specified officers who will be liable if they fail to
exercise supervision over the operations of the law
enforcement agencies. It is manifest that there will be
anomalies, if not corruption, in the conduct of such
operations in the absence of adequate supervision. But
provisions of that kind cannot be prescribed by courts; they
are appropriate matters for consideration by the
parliament."
23. I was referred to s41 of the Controlled Substances Act, which reads:
"41. A person who -
(a) aids, abets counsels or procures the commission of an
offence against this Act; or
(b) solicits or incites the commission of an offence against
this Act, shall be guilty of an offence and liable to the
same penalty as is prescribed for the principal offence."
24. Mr Powell, counsel for the Crown, does not dispute that Harvey "procured" the relevant sales of heroin, and in the circumstances there is no need for me to consider the ambit of s41(a), but I refer in passing to the judgment of Zelling J in The Queen v Giorgi and Romeo (1982) 31 SASR 299 at pp310-311. Nor is there any dispute that the maximum penalty for procuring such a sale is 25 years or $200,000 or both, or that such offences are very serious indeed.
25. In consequence of the decision of the High Court in Ridgeway, and the decision of his Honour Judge Bishop in the District Court of South Australia in R v Marashi and Jaksimoni Unreported Jt No D3262 delivered on 30 May, 1994 in which the learned judge also excluded evidence of controlled buys of heroin by the police, the South Australian Parliament has passed the Criminal Law(Undercover Operations) Act, 1995 ("the Undercover Operations Act"). It was assented to on 15 June, 1995. Before setting out the relevant provisions thereof, it is necessary to consider more precisely the undercover operations in the case before me, and what approval was given by the police officer in charge of the operations.
26. Detective Inspector Paynter, Detective Senior Sergeant Patterson, Detective Senior Constable Harrison and Detective Senior Constable Harvey were all called by the prosecutor on the voir dire. Paynter said in evidence that Harrison (who was then stationed at Port Adelaide CIB) told him that he had an informant who was prepared to provide an introduction to some Romanians that were involved in the drug trade in the Port Adelaide area, and he suggested the making of "controlled buys". Paynter explained that this practice had been used as an investigative tool for many years. He said that because of the nature of the drug trade it is very difficult to obtain direct evidence of the involvement of the offenders because of the covert nature of their operations, and the length to which they go to prevent detection. He said that the "controlled buy" is a practical and appropriate means for police to discover the evidence necessary to prosecute the people involved. A controlled buy typically involves a police officer posing as a purchaser of a drug, and negotiating the purchase of that drug from another. Paynter said he told Harrison to speak to Patterson who was a Senior Sergeant in charge of a Drug Task Force team. As a result of Harrison speaking to Patterson, Patterson presented Paynter with a pro forma entitled "Drug Task Force Expenditure Approval". Patterson filled in a number of gaps in the form. I set out the relevant parts thereof. The words underlined were actually written by Patterson, and the signatures were those of Patterson, Paynter, Harvey and Harrison where shown and they were written on the dates underlined:
"INTRODUCTION
I apply for $800.00 for the controlled purchase of drugs;
for .................................
(other expense/expenditure)
PURPOSE (provide succinct background details)
To purchase two grams of heroin from Romanian dealers.
Dealers have been selling in Port Adelaide area for some
time and have been subject of investigations by Pt Adel. CIB
and D.T.F. over long period.
PROPOSED ACTIONS (If drug purchase)
Aim: Obtain evidence of drug trafficking by FRINCO ION
(suspect)
Objectives: Purchase 2 grams at a cost of $400 per gr
(amount and type of drug)
Tactics:
The purchase will be involving a controlled buy using an
informant to introduce police officer.
Control Factors:
Surveillance Photo/Video C/Off Present
Listening Device Photostat Money Supervisor Present
Other (specify)...........................................
(Signature) C J PATTERSON, Det Sgt 487/9 3/10/91
Signed Name, Rank and I/d Date
Approved and Issued by (D N Paynter) 3/10/91
Received the sum of $800.00
(Signature) HARVEY, PJ S/C 3321/5 3/10/91
Signed(Invest Officer) Name, Rank and I/D Date
Received from D/Sgt PATTERSON, the sum of $200.00, returned
unexpended
(D N Paynter) 4/10/91"
27. In October, 1991 the Drug Task Force did not have a separate form for the approval of the actual undercover operation, but I accept Paynter's evidence that the expenditure approval form served as approval for the operation, as well as its expenditure. A total of four such separate forms were ultimately completed, although a "buy" did not take place on the last occasion for which a form had been filled in, and approval given. All four forms were tendered as exhibits.
28. It will be noticed that the name Ion Frinco is mentioned as the suspect. He was a Romanian well known as a drug dealer in New South Wales who drove a Jaguar. Patterson did not know at that stage whether or not either of the persons known as Mick and Michael could have been Ion Frinco. He was the ultimate target.
29. A document entitled "Crime Command Circular" was also tendered. It read:
"UNDERCOVER ILLICIT DRUG PURCHASE
When investigations into drug offences dictate the
requirement for the undercover purchase of illicit drugs,
such purchase shall only be undertaken by:
(a) a member of the Drug Task Force
(b) a member who is under the control of a Supervisor from
the Drug Task Force, provided that the member has been fully
briefed on operating procedures.
Such action in (a) and (b) will not be undertaken without
the consent of the member's Commissioner Officer and/or a
Commissioned Officer attached to the Drug Task Force, as is
appropriate in the given circumstances. A Commissioned
Officer from the Drug Task Force will assess the need for
his personal inspection based on the risks involved, the
seriousness of the offence/s, the need for supervision and
the amount of money involved. In all cases, a Commissioned
Officer from Drug Task Force will provide supervision.
Determination of the need for use of a listening device in
conjunction with 'controlled buys' will be made by the
Commissioned Officer from Drug Task Force and the criteria
and procedures set down in PCO Circular 481 are to be
adhered to.
(Signed)
C.E.WATKINS
ASSISTANT COMMISSIONER (CRIME)
27 December, 1991."
30. Paynter said the circular came into force about the date thereof. He said there was no documented policy on undercover drug purchases at the time of the operations under consideration here. He said that the Crime Command Circular (supra) reflected the policy that had been in force for some time.
31. Patterson gave evidence that he had a conversation with Harrison prior to the first application for expenditure approval. Harrison told him that he had been informed that two Romanian male persons named Mick and Michael were involved in the sale of heroin. Harrison told him that his informant had proved to be a reliable informant in the past and he was himself involved in the drug scene. He was looking in return for some sort of favourable communication from the detective to the presiding magistrate who was going to sentence him for offences he had committed. Patterson emphasised that nothing could be done for the informant without results. Patterson said that Harrison told him that the name of the informant was Jeff Lynch. Patterson said that he had selected Detective Harvey as a suitable person to make a series of controlled buys from these Romanians, and he asked Paynter for money to make those buys. Patterson assumed the role of the supervising officer in charge of the investigation which was then to commence. Paynter was the commissioned officer who had the ultimate control.
32. Harrison stated that he had met Lynch in December, 1990 about the time a supermarket was burned down. He had arrested Lynch for shop breaking and larceny. Lynch was at that time helping with the investigation of the arson. Harrison said that he had also been assigned to a special police operation at Port Adelaide CIB in relation to drug activity in the Port Adelaide area. Lynch had supplied him with information relating to people using heroin in the Port Adelaide area.
33. Harrison said he had been approached by Lynch on 3 October, 1991, Lynch told him that he wanted some assistance in relation to charges against him in the Port Adelaide Magistrates Court. He said that he could supply information about the heroin dealing of two particular people. He supplied Harrison with the first names of the two people, car registration numbers, a pager number and pager system for the people who ran the business. He volunteered to make the introduction to a undercover police officer. Harrison subsequently introduced Lynch to Detective Harvey for that purpose the same day. Harrison said that after the arrest of the accused on 16 November, 1991, he spoke to a magistrate in chambers at the Port Adelaide Magistrates Court. All the outstanding dishonesty charges against Lynch had been brought on for hearing on that day. Harrison said he told the magistrate about how Lynch had helped the police.
34. Finally, Harvey himself gave evidence. He said that in October, 1991 he was stationed at the Drug Task Force. He was a member of Patterson's team. Patterson asked him to assume the role of undercover buyer of heroin from the people in question. Subsequently he spoke to Harrison, and then to the informant Lynch. Lynch assisted him in organising a cover story so that he could attend at the address where Lynch was living with Lynette Rowe. The cover story they agreed upon was that they had known one another since schooldays, that they had done boxing together and that they had met at the Largs Pier Hotel.
35. The relevant provisions of the Undercover Operations Act are as follows:
"Interpretation
2. In this Act -
'approved undercover operations' means -
(a) undercover operations approved under this Act; or
(b) undercover operations approved by a law enforcement
authority before the commencement of this Act that are of a
type that could have been reasonably approved under this Act
if this Act had been in force when the operations commenced;
'authorised participant' in approved undercover operations
means -
(a) a person authorised under the terms of the approval to
take part in the operations; or
(b) in the case of operations that began before the
commencement of this Act - a person authorised by a law
enforcement authority to take part in the operations;
'senior police officer' means a member of the police force
of or above the rank of Superintendent;
'serious criminal behaviour' means behaviour involving the
commission of -
(a) an indictable offence; or
(b) - (g) ...
'undercover operations' means operations (which may include
conduct that is apart from this Act illegal) of which the
intended purpose is to provide persons engaging or about to
engage in serious criminal behaviour an opportunity to -
(a) manifest that behaviour; or
(b) provide other evidence of that behaviour.
Approval of undercover operations
3.(1) A senior police officer may approve undercover
operations for the purpose of gathering evidence of serious
criminal behaviour.
(2) An approval may not be given unless the officer -
(a) suspects, on reasonable grounds, that persons (whose
identity may - but need not - be known to the officer) are
engaging or about to engage in serious criminal behaviour of
the kind to which the proposed undercover operations relate;
and
(b) is satisfied on reasonable grounds that the ambit of the
proposed undercover operations is not more extensive than
could reasonably be justified in view of the nature and
extent of the suspected serious criminal behaviour; and
(c) is satisfied on reasonable grounds that the means are
proportionate to the end ie that the proposed undercover
operations are justified by the social harm of the serious
criminal behaviour against which they are directed; and
(d) is satisfied on reasonable grounds that the undercover
operations are properly designed to provide persons engaging
or about to engage in serious criminal behaviour an
opportunity -
(i) to manifest that behaviour; or
(ii) to provide other evidence of that behaviour,
without undue risk that persons without a predisposition to
serious criminal behaviour will be encouraged into serious
criminal behaviour that they would otherwise have avoided.
(3) Before giving approval the officer must consider whether
approval for similar operations has previously been sought,
and, if sought and refused, the reasons for that refusal.
(4) The approval must -
(a) be in writing; and
(b) be signed by the officer giving it; and
(c) specify the persons who are authorised to participate in
the operations; and
(d) state the nature of the conduct in which the
participants are authorised to engage; and
(e) specify the date and time the senior police officer
signs the approval and the time from which it takes effect
(which may be contemporaneous with or later than the time of
signing but cannot be earlier); and
(f) state a period (not exceeding 3 months) for which the
approval is given.
(5) A senior police officer may renew an approval from time
to time for a further period not exceeding 3 months.
(6) A senior police officer must, within 14 days after
giving or renewing an approval, cause a copy of the
instrument of approval or renewal to be given to the
Attorney-General.
Legal immunity of persons taking part in approved undercover
operations
4.(1) Despite any other law, an authorised participant in
approved undercover operations incurs no criminal liability
by taking part in undercover operations in accordance with
the terms of the approval.
(2) This section operates both prospectively and
retrospectively."
36. Mr Mayne, counsel for Gheorghita, argued strongly that s4 of the Undercover Operations Act did not make undercover operations lawful, and that in merely stating that an authorised participant incurred "no criminal liability by taking part" therein, did not overcome the problem for the Drug Task Force raised by the judgments of the High Court in Ridgeway's case. Mr Barnett, counsel for Albu, supported his argument, and also submitted that the Undercover Operations Act achieved no more in the context of that Act than s54 of the Controlled Substances Act achieved in the context of that act. Section 54 states:
"54 (1) No personal liability shall attach to -
(a) an authorized officer;
(b) a person accompanying an authorized officer; or
(c) an analyst,
for an act or omission on his part, in good faith, in the
exercise or purported exercise, or discharge or purported
discharge, of any power or duty conferred or imposed upon
him under this Act.
(2) A liability that would, but for subsection (1), lie
against a person referred to in that subsection shall lie
against the Crown."
37. In my opinion, these arguments are misconceived. It is clear to me that Parliament had very much in mind the passages from the judgments of Mason CJ, Deane and Dawson JJ at p58 and of Brennan J at p66 (both of which passages are quoted above), and in particular the wording in the former passage "... a strict requirement of observance of the criminal law by those entrusted with its enforcement undesirably hinders law enforcement ...". Moreover, the arguments ignore the words in parenthesis in the definition of "undercover operations", namely, "(which may include conduct that is apart from this Act illegal)".
38. Next, it was argued that the words "law enforcement authority" in part (b) of the definition of "Approved Undercover Operations", which are not defined in the legislation, should be construed to mean "a member of the police force of or above the rank of superintendent" having regard to the definition of "Senior Police Officer". I do not accept this submission. Perhaps the word "authority" is a curious word to have been used. I notice that in the majority judgment in Ridgeway their Honours speak in several places of "law enforcement officers", and Brennan J speaks of "law enforcement agencies". Toohey J at p74 speaks of "law enforcement authorities". Gaudron J at p85 speaks of "law enforcement agents". McHugh J at p91 speaks of "law enforcement officials". (Compare the language used in the National Crimes Authority Act, 1984.) If counsel's argument is correct I would have expected Parliament to have used the words "Senior Police Officer" in part (b) instead of "law enforcement authority". I can see no justification for interpreting those words in the way urged, especially as they were being used in relation to undercover operations which had been undertaken before the commencement of the Undercover Operations Act. Nor do I agree that there is any justification for the argument advanced that the prosecutor should have called a member of the police of or above the rank of superintendent to say whether the actual undercover operations in this case in October, 1991 "are of the type that could have been reasonably approved under this Act if this Act had been in force" at the time. Inspector Paynter, in my view, came within the purview of the phrase "law enforcement authority", and he did give the necessary evidence. He said that he was familiar with the provisions of 3(2) of the Undercover Operations Act, and he said that if those provisions had been in force on 3 October, 1991 he would have had the necessary suspicion required by (a) thereof, and been satisfied in terms of (b) - (d) thereof, and that he would have approved the undercover operations.
39. Counsel for the accused sought to derive some help from the requirements for approval specified in subs4 of s3, and submitted that Paynter's approval had not complied therewith. I also reject this submission. I think that sub-section has a prospective operation and does not apply to any retrospective operation of the Undercover Operations Act. There was, on Paynter's evidence, a clear, if unwritten, procedure to be followed to authorise such operations. This was followed and the approval necessary at that time was given.
40. It was also argued that the relevant undercover operation here fell foul of the way Paynter allegedly approved of it in that, for example, listening devices were not used, and the informant was involved subsequent to the initial introduction. In my opinion, there is no justification on the evidence for concluding that Patterson or any other police officer flouted the approval Paynter gave, or that his approval was in any way vitiated.
41. In my opinion, Harvey was an "authorised participant" within the meaning of (b) of the definition of "authorised participant". I draw attention to the word "could" in the definition of "approved undercover operations" (b). I have reached the conclusion that even if Ridgeway's case is indistinguishable, the Undercover Operations Act can be invoked by the prosecution in this case to authorise retrospectively the undercover operation.
42. Even if I am wrong in that view, I think that Ridgeway's case is distinguishable. I think that the police conduct here came under the first category of case within the meaning of the majority judgment at p54 quoted above. Although the police acted illegally in procuring the commission of the offences (in counts 1 - 5), their conduct did not actually form an essential ingredient of the various charges, as it did in Ridgeway. Nor was the police conduct of the kind referred by Mason CJ, Deane and Dawson JJ as a "rare and exceptional case". In the exercise of my discretion, I would admit the evidence. Nor am I satisfied that it would be unfair to any of the accused to do so. The exercise of any discretion, of course, only arises if I was of the view that the Undercover Operations Act was of no assistance to the prosecution. In that event, and in the exercise of any relevant discretion, I think I would be entitled to take into account the intention of Parliament in enacting the Undercover Operations Act, thereby rendering curial approval of the police conduct here more appropriate than it would have been in the absence thereof. The discretion in Ridgeway involves a balancing of public policy considerations. The clear expression of legislative intent would resolve the balancing process in favour of admitting the evidence. I merely add that in the exercise of a discretion, it is not entirely irrelevant to remember that what the police did was done prior to the landmark decision in Ridgeway.
43. Whether the search warrants issued by Inspector Paynter on 16 November, 1991 were improperly issued: On 16 November, 1991, and pursuant to s52 of the Controlled Substances Act, Inspector Paynter issued to a number of police officers search warrants to enter premises at 31 Kent Street, Mansfield Park and 6 King Street, Norwood. Section 52 of the Act is contained in Part VII. Pursuant to s50 of the Act, a member of the police force is an authorised officer for the purpose of Part VII. Section 52 so far as is material here reads:
"Power to search, seize etc
52(1) Subject to this section, an authorised officer may -
(a) enter at any time any premises for the purposes of
ascertaining whether the provisions of this Act ... are
being complied with or have been contravened;
(b) where reasonably necessary for that purpose, break into
or open any part of the premises, or anything in or on the
premises, and
(c) ...
(2) While an authorized officer is in or on any premises
pursuant to this section, he may -
(a) inspect or search the premises ...
(b) to (j) ...
(3) ...
(4) An authorized officer shall not exercise the powers
conferred by subsection (1)(a) and (b) except upon the
authority of a warrant issued by an officer of police, a
special magistrate or a justice ...
(5) An officer of police, special magistrate or justice
shall not issue a warrant under subsection (4) unless he is
satisfied, on information given upon oath -
(a) that there are reasonable grounds for suspecting that an
offence against this Act has been, is being, or is about to
be, committed; and
(b) that a warrant is reasonably required in the
circumstances.
(6) - (12) ..."
44. Mr Mayne argued that it was Paynter who controlled the investigation of the accused. When acting under s52 he was required to act judicially, and therefore, he argued, he could not act as judge in his own cause. The warrants were therefore illegal, he argued, and the evidence obtained as a result of the searches should be excluded. He referred to The Queen v Romeo
(1982) 30 SASR 243 at pp269-271 and Tran Nominees v Scheffler (1986) 42 SASR
361 at p378.
45. The terms of s52 of the Controlled Substances Act are to be contrasted with at least two other statutory provisions in South Australia. Section 318 of the Criminal Law Consolidation Act provides in the circumstances there postulated that "The Commissioner of Police or any Inspector of Police" may, by writing, authorise any police officers to enter premises in search of stolen goods. Section 67 of the Summary Offences Act provides merely that "The Commissioner may issue general search warrants to such members of the police force as the Commissioner thinks fit." Incidentally, on the voir dire the witnesses were not asked whether any of the raiding police had general search warrants on 16 November, 1991 under the last mentioned Act.
46. I have derived some guidance from a text book by David Feldman entitled "The Law Relating to Entry, Search and Seizure" published in London in 1986. At pp73-74, the learned author said:
"... the person from whom a warrant is sought has a high
duty imposed on him to protect individual citizens from
arbitrary infringements of their liberties, as well as a
responsibility to facilitate the conviction of the guilty in
the interests of the whole of society. Statutes make this
clear by insisting that reasonable cause should appear from
the information to justify the warrant. In considering
applications, magistrates must act judicially ... This means
they must exercise their own judgment on the information and
act fairly and reasonably ..." At pp145-146, he said:
"A number of statutes give a senior police officer power to
give a written authority to enter premises and search for
particular items in limited circumstances. As this is a
departure from the usual requirement that an independent
judicial officer should process applications for warrants,
the power is normally subject to stringent conditions.
Normally, only an officer of the rank of superintendent or
above is allowed to issue authorisations. Normally, there
must be a grave danger which makes it impractical to obtain
a warrant: danger to the State, as under the Official
Secrets Act 1911; danger to life, as in the case of
explosives, or danger of losing radioactive material. These
dangers must be present in addition to the requirement that
there be reasonable cause to suspect or believe that the
objects of the search are on the named premises. The
premises must be specified in the same way as in a warrant,
and the authority is for a single search and cannot be
extended to other premises. In this it is quite different
from writs of assistance. The authorities are rarely
sought, and still more rarely granted. Many police officers
consider that it is easier to obtain a warrant from a
justice than to obtain a written authority to search from a
superintendent. Senior officers are well aware that they
put their judgment on the line when issuing authorities, and
they are reluctant to take risks. In general the powers are
useful to deal with rare emergencies." And at p147-148, the learned author said:
"Another curious power to authorise searches is contained in
the Police and Criminal Evidence Act 1984, s18(4). Under
s18(1), a constable may enter and search any premises
occupied or controlled by a person who is under arrest for
an arrestable offence, if he has reasonable grounds for
believing that evidence relating to the offence or to
another similar or connected arrestable offence is on the
premises (such evidence not being subject legal privilege).
This power can only be exercised if authorised by an officer
of the rank of inspector or above, unless the arrested
person has not yet been taken to a police station and his
presence elsewhere is necessary for the effective
investigation of the offence. There need not be any
emergency to justify the grant of a written authorisation
under s18 ...
There is a general question to be asked about all the powers
to issue authorities to search without any independent
judicial assessment of the information. Is it proper to
allow entries and searches without an external check on
arbitrary behaviour by public officers? There is a danger
that, by permitting police officers to judge whether it is
right to authorise searches by other police officers,
Parliament may appear to let the police act as judges in
their own cause, especially as the procedure for obtaining
any sort of search warrant is by nature secretive. The
occupier gets no say in the decision. That makes it
particularly important that an outsider should look at the
police case before the search ... The police probably use
their powers very responsibly, but the scope for abuse is
there. Rules are not made to stop responsible, law-abiding
people from acting irresponsibly and unlawfully. They are
made to control the minority who, without them, might go
beyond what is proper in the exercise of their draconian
powers. Parliament has judged that in certain circumstances
the risk must be taken, because the dangers of not allowing
the police to act in cases of emergency far outweigh the
danger of corruption. This is a fair argument as applied to
terrorism, explosives offences and official secrets, but it
is less convincing when applied to stolen goods and searches
after arrest."
47. One of the leading cases on search warrants is the unanimous decision of the High Court of Australia in George v Rockett and Another (1990) 93 ALR 483. In that case the first respondent, Detective Sergeant Rockett attended at the office of the second respondent, a stipendiary magistrate, and applied for the issue of a search warrant under the relevant provisions of the Queensland Criminal Code. The sworn complaint contained an assertion by the first respondent that there were reasonable grounds for his belief that certain documents would afford evidence as to the commission of certain offences, but did not specify what those reasonable grounds were. At p486, the Court said:
"A search warrant thus authorises an invasion of premises
without the consent of persons in lawful possession or
occupation thereof. The validity of such a warrant is
necessarily dependent upon the fulfilment of the conditions
governing its issue. In prescribing conditions governing
the issue of search warrants, the legislature has sought to
balance the need for an effective criminal justice system
against the need to protect the individual from arbitrary
invasions of his privacy and property. Search warrants
facilitate the gathering of evidence against, and the
apprehension and conviction of, those who have broken the
criminal law." At p488, their Honours said:
"... it must appear to the issuing justice, not merely to
the person seeking the search warrant, that reasonable
grounds for the relevant suspicion and belief exists ... It
is well established that on language such as (that contained
in a Queensland section) it is for the justice to come to
his own conclusion on materials presented to him." At p495, the Court said:
"The sworn complaint in this case contains no facts which
might have satisfied the magistrate that there were
reasonable grounds for believing that the documents for
which the search warrant was sought would afford evidence as
to the commission of the offences set out in the complaint.
It contains nothing save the assertion by Rockett that there
are reasonable grounds for his own belief.
In the absence of information in the sworn complaint which
might have satisfied the magistrate as to the existence of
reasonable grounds for Rockett's belief, the magistrate had
no power to issue the warrant. The warrant was invalid."
48. It is necessary to summarise Paynter's evidence as to what information he was given prior to issuing the warrants. I find that Patterson provided that information orally, and provided it under oath. Paynter made notes contemporaneously, and I note that counsel for the defence inspected his notes. Paynter said that Patterson handed him a copy of the Operations Order. That document read:
"OPERATION ORDER
I/R 92/0377
SITUATION
Two male persons named 'Mick' and 'Michael', who are of
Romanian origin are operating a heroin distribution business
in the Adelaide metropolitan area.
1. On the 3rd October, 1991, Peter Harvey bought two weights
of heroin from 'Mick' at Osborne. A female named Isobella
Kokosi was present and involved in the transaction.
2. On the 8th October, 1991, Peter Harvey bought two weights
of heroin from 'Michael' at Osborne.
3. On the 11th October, 1991, Peter Harvey bought four
weights of heroin from 'Mick' at Ridleyton. Isobella Kokosi
was again present.
4. On the 4th November, 1991, Peter Harvey had a meeting
with 'Michael' and discussed the purchase of an ounce of
heroin. The agreed price was $10,000. There is no apparent
difficulty for them to obtain the quantity at short notice.
Contact with the Romanians has been established with a pager
number and a code. The meeting place has been identified by
the Romanians as McDonalds, cnr South and Torrens Roads.
The practice for a buy is to take Harvey a short distance
from McDonalds and complete the transaction. It has taken
up to 2 hours for the Romanians to arrive at the meeting
place.
MISSION
In the afternoon of Monday, 1th November, 1991, Harvey (in
possession of $10,000) will attend at McDonalds, cnr South
and Torrens Road, Ridleyton, page the Romanians, specify the
amount of l ounce of heroin, and purchase same. Harvey will
be fitted with a listening device and when transaction is
completed with Romanians present will be apprehended. All
of the three mentioned participants will be apprehended
during the afternoon.
EXECUTION
1. SURVEILLANCE has been carried out on the suspects.
Addresses have been established and will be targeted when
the initial apprehensions have been made. It is thought
that with the size of this buy, both Romanians will be
present. If not, arrest teams will be on standby at known
addresses for apprehension. Contact will be made by Harvey,
only when surveillance has established contact with the
suspects.
2. Harvey will have a listening device fitted to his body.
This will establish when the buy has been completed. Visual
observations will be established by ISU to aid confirmation,
as a backup.
3. When the buy is completed, members of Star Force will
make the initial contact, holding all persons at the scene
(including Harvey) until arrest teams arrive.
4. Support teams will then attend at the addresses, to
locate any other suspects not at scene, and search premises.
The Deployment Schedule describes the duties of the
personnel involved.
STAGING AREA.
The Same Johnson Sports Ground in Renown Park will be used
as a staging area.
ADMINISTRATION AND LOGISTICS
FIREARMS will be carried by all personnel.
WARRANTS will be issued for all premises.
Det. Insp. Paynter will be available in area.
COMMAND AND SIGNALS
COMMAND will be as per the Deployment Schedule.
COMMUNICATIONS will be on Sabre, Channel 17, off local and
on DVP.
C.J. PATTERSON
Det. Sgt., 487/9.
DRUG TASK FORCE.
11th November, 1991."
49. Paynter then accompanied Patterson to the Drug Task Force Squad Room, and reminded him that he was still under oath. He said Patterson then read the Operations Order to the assembled police officers in his presence. I assume he only read those parts that are under the heading "Situation" and perhaps "Execution" (supra). Patterson referred to the premises at Norwood and at Mansfield Park, and said they expected to find heroin at those premises. He described the lengths to which offenders go to secrete drugs in their premises. I accept Paynter's evidence, and I find that he was satisfied, and reasonably satisfied, of the matters referred to in (a) and (b) of s52(5).
50. What lay behind Mr Mayne's submission was one of the two traditional rules of natural justice which "still provide the framework for an exposition of procedural fairness": the hearing rule - audi alteram partem, or literally, hear the other side, and the rule against bias - nemo debet esse judex in propria sua causa - noone may judge in his own cause, see Aronson and Franklin "Review of Administrative Action" p95. The second rule, of course, is subject to the doctrine of necessity, but I doubt whether that is relevant here. It is the second rule that Mr Mayne invoked, but I query its relevance at what was really the investigation stage rather than the hearing stage. I also point out that Parliament certainly did not contemplate that the occupants of the houses to be searched would be heard.
51. It is true that Paynter was not an independent police officer, but it is difficult to see how Parliament could ever have contemplated that any police officer would be truly independent. It would undoubtedly have been preferable for a police officer who was not in the Drug Task Force Squad to have issued the warrants, but having regard to the absence of any qualification as to the eligibility of a police officer in the section and having regard to my conviction that Paynter was acting responsibly, I reject the submission that the warrants were invalid.
52. Further, even if these conclusions are wrong, this is a case in which I would be prepared to exercise my discretion in favour of admitting the police evidence of what they found at the respective premises, and the evidence of the conversations that took place there, see R v Conley (1979) 21 SASR 166 and the factors to be considered set out in the judgment of Bunning v Cross (1978) 141 CLR 54 at pp78-80).
53. Whether evidence of the identification of Gheorghita and Kokosi by Detective Harvey should have been excluded.
54. The third application made on behalf of the accused Gheorghita and Kokosi was that the evidence of the identification of those accused by Harvey should be excluded on grounds of unfairness. Mr Mayne referred to The Queen v Hallam and Karger (1985) 42 SASR 126. At p130, King CJ said:
"It should be emphasized that the proper method of procuring
evidence of identification is by the identification parade
... Identification by confronting the victim with the
suspect in circumstances which tend to suggest to the victim
that the suspect is under suspicion is a virtually valueless
form of identification which should be resorted to only in
the most exceptional situations."
55. Mr Mayne submitted that the only relevant identifying witness, namely Harvey, was confronted with the only relevant suspects, namely, Gheorghita and Kokosi, when he entered 6 King Street, Norwood after members of the Star Force had entered the premises, and he was directed to a bedroom where Gheorghita and Kokosi had already been apprehended. Mr Mayne complained that what happened was unfair to the accused, and that the police should have organised an identification parade consisting of a number of people, including not only Gheorghita and Kokosi, but the other two people found on the premises, and only then should Harvey have been asked to make an identification.
56. I reject this submission. The facts are quite different to the usual case when an identification parade is the only fair method, as, for example, where there is a one-off sighting of a person previously unknown (see R v Hayles (1990) 54 SASR 549). Harvey had several prior meetings with Gheorghita and Kokosi, some lasting many minutes. In my opinion, this case could more aptly be described as a recognition case, comparable with the case of Sutherland v R Unreported Jt No 4346 (available on SCALE) delivered on 22 December, 1993. At p7, Olsson J said (King CJ and Millhouse J concurring):
"(This) was in truth, a recognition case. Both
identification witnesses said that they had met the
appellant before (in the case of Adams, on several
occasions), there had been ample opportunity to observe him
on the night in question over a substantial period of time,
Flitcroft in fact saw him again the next day to retrieve the
telephone and, as I have pointed out, the appellant has
relatively memorable facial features. In such circumstances
the identification of him as the offender took on a very
different hue.
There is simply no substance in this ground of appeal. Nor
was there anything sinister in the police not attempting to
arrange the traditional "line-up". They would have been
pardoned, at the time of their investigations, for
concluding that identification was not a significant issue -
that it was merely the recognition of a group of persons
known to one or other of the witnesses. Certainly the
appellant did not ever assert to them that it was a case of
mistaken identity, thereby placing the police on notice that
an identification issue existed."
57. Application for Stay: The final application, made on behalf of Albu, was for an order that the proceedings in this matter be stayed "until the evidence of Jeff Lynch and Lynette Rowe is received on the voir dire at this trial". The particulars of the grounds relied upon were as follows.
"Jeff Lynch and Lynette Rowe are relevant and material
witnesses who would be in a position to give evidence about
important matters to be determined in these proceedings that
are in dispute.
The prosecutors at the committal hearing and at the previous
trial in this matter did not call either of them and did not
advance any good reason for their failure to call them.
They should be called by the prosecutor at this trial on the
voir dire. It would be unfair to the accused if the
prosecutor did not call them as witnesses and in the
circumstances the proceedings should be stayed until such
time as the prosecutor indicates his intention so to do."
58. Mr Barnett stressed that on the case for the prosecution, Lynch and Rowe were present during the first alleged sale by Gheorghita to Harvey, and Lynch (at least) was present during the alleged sale by Albu to Harvey. Further, the pager allegedly found at Kent Street was registered in the name of Rowe. The evidence of Albu at the first trial was tendered before me on the voir dire by consent, and it is in conflict with Harvey's evidence. Mr Barnett argued that the evidence of Lynch and Rowe could be critical, and that it would be unfair to the accused if they were not called as witnesses by the Crown.
59. Mr Barnett referred to Ngalkin (1984) 12 A Crim R 29. Ngalkin was committed for trial on a charge of causing grievous bodily harm, and an indictment was subsequently presented. Only one eye-witness was called at the committal proceedings. Prior to the commencement of the trial, the prosecution informed the defence that it proposed to call a further four eye-witnesses. Copies of their statements were provided so close to the trial that there was no proper opportunity to interview them. O'Leary J held in the Northern Territory Supreme Court that the proceedings on the indictment should be stayed. He held that by reason of the failure of the prosecution to call the witnesses at the committal proceedings, the accused had suffered substantial detriment. I only have to state the facts in that case to indicate that they were entirely different to the case at bar, and I think the case has no bearing here.
60. Apparently the Crown has not taken statements from Lynch and Rowe, as I understand Mr Powell, because they themselves are or were involved in the heroin trade, and are not regarded as reliable. He said it was not the practice to call informants as witnesses for the prosecution. A subpoena was served on Lynch at Carnarvon in Western Australia requiring him to attend this trial, and be available to be called by the defence. Lynch advised Harrison that he would not be attending.
61. The leading case in point is The Queen v Apostilides (1984) 154 CLR 563. In a joint judgment the court (Gibb CJ, Mason, Murphy, Wilson and Dawson JJ said at pp575-576:
"We have come to the conclusion that the following general
propositions are applicable to the conduct of criminal
trials in Australia:
1. The Crown prosecutor alone bears the responsibility of
deciding whether a person will be called as a witness for
the Crown.
2. The trial judge may but is not obliged to question the
prosecutor in order to discover the reasons which lead the
prosecutor to decline to call a particular person. He is
not called upon to adjudicate the sufficiency of those
reasons.
3. Whilst at the close of the Crown case the trial judge
may properly invite the prosecutor to reconsider such a
decision and to have regard to the implications as then
appear to the judge at that stage of the proceedings, he
cannot direct the prosecutor to call a particular witness.
4. When charging the jury, the trial judge may make such
comment as he then thinks to be appropriate with respect to
the effect which the failure of the prosecutor to call a
particular person as a witness would appear to have had on
the course of the trial. No doubt that comment, if any,
will be affected by such information as to the prosecutor's
reasons for his decision as the prosecutor thinks it proper
to divulge.
5. Save in the most exceptional circumstances, the trial
judge should not himself call a person to give evidence.
6. A decision of the prosecutor not to call a particular
person as a witness will only constitute a ground for
setting aside a conviction if, when viewed against the
conduct of the trial taken as a whole, it is seen to give
rise to a miscarriage of justice.
We have not attempted in our first proposition to deal
exhaustively with the responsibility of the prosecutor. The
description of that responsibility, which we have cited from
Richardson, emphasizes that the prosecutor's role in this
regard is a lonely one, the nature of which is such that it
cannot be shared with the trial judge without placing in
jeopardy the essential independence of that office in the
adversary system. It is not only a lonely responsibility
but also a heavy one. A decision whether or not to call a
person whose name appears on the indictment and from whom
the defence wish to lead evidence must be made with due
sensitivity to the dictates of fairness towards an accused
person. A refusal to call the witness will be justified
only by reference to the overriding interests of justice.
Such occasions are likely to be rare. The unreliability of
the evidence will only suffice where there are identifiable
circumstances which clearly establish it; it will not be
enough that the prosecutor merely has a suspicion about the
unreliability of the evidence. In most cases where a
prosecutor does not wish to lead evidence from a person
named on the indictment but the defence wishes that person
to be called, it will be sufficient for the prosecutor
simply to call the person so that he may be cross-examined
by the defence and then, if necessary, be re-examined."
62. Mr Barnett relied on the passage I have underlined, but overlooked the fact that it is formulated on the basis that the name of the witness appeared on the indictment, which is not the case here. I am not persuaded in all the circumstances of this case that a stay should be granted.
- AGLC
- R v Isabella Kokosi, Mihail Albu and Marin Gheorghita No. SCCRM 95/333 Judgment No. 5188 Number of Pages 28 Criminal Law and Procedure (1995) 64 Sasr 319 [1995] SASC 5188
- Case
- [1995] SASC 5188
- Decision Date
CaseChat Overview and Summary
The court found that the Undercover Operations Act could be applied retroactively to authorise the police conduct and that the search warrants were valid. The identification of the accused was deemed fair, and the court declined to grant a stay of proceedings due to the prosecution's failure to call certain witnesses, as the decision to call a witness lies solely with the prosecutor.
The final orders of the court were to dismiss all applications made by the accused.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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