R v Kola and Londono-Gomez
[2022] SADC 108
•8 September 2022
District Court of South Australia
(Criminal: Application for Stay of Proceedings)
R v KOLA AND LONDONO-GOMEZ
[2022] SADC 108
Reasons for Ruling of her Honour Judge Kudelka
8 September 2022
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
The accused are charged with conspiracy to import a commercial quantity of a border-controlled drug contrary to sections 11.5(1) and 307.1(1) of the Criminal Code 1995 (Cth). The accused applied for an order that the proceedings be permanently stayed or, in the alternative, that certain evidence be excluded.
It was contended that the police had acted unlawfully during the course of the investigation when they failed to prevent one of the co-conspirators from leaving the state/country in breach of his bail agreement relating to unrelated offences. In the alternative, it was contended that the conduct of the police in so doing was grossly improper.
Held: The police did not act unlawfully nor was their conduct improper. There was no basis for a permanent stay of proceedings or for the exclusion of evidence. Application refused.
Criminal Code Act 1995 (Cth) s 11, s 307; Evidence Act 1995 (Cth) s 138; Bail Act 1985 (SA) s 5, s 6, s 17, s 18; Customs Act 1901 (Cth) Part X11; Magistrates Court Act 1991 (SA) s 45, s 46; Criminal Law Consolidation Act 1935 (SA) s 267; Police Regulations 1999 (SA) r 10; Police Act 1998 (SA), referred to.
Giorgianni v Queen (1985) 156 CLR 473; DPP (Cth) v Poniatowska (2011) 244 CLR 8; Zhu v Treasurer of NSW 218 CLR 530; Z Ltd v A-Z and AA-LL [1982] 1 QB 558; Bunning v Cross (1978) 141 CLR 54; Ridgeway v The Queen (1995) 184 CLR 19; Williams v Spautz (1992) 174 CLR 509; Jago v District Court (NSW) 1989 168 CLR 23; Rona v District Court (SA) (1995) 63 SASR 223; Moti v The Queen [2011] HCA 50; Strictland v DPP (Cth) (2018) 93 ALJR 1, considered.
R v KOLA AND LONDONO-GOMEZ
[2022] SADC 108
Alfred Kola and Juan Daniel Londono-Gomez are charged with the offence of conspiracy to import a commercial quantity of a border-controlled drug, contrary to sections 11.5(1) and 307.1(1) of the Criminal CodeAct 1995 (Cth) (the Code).
It is alleged that between about 2 April 2014 and 18 July 2014, in the state of South Australia and elsewhere, they did conspire with each other, AZ (a pseudonym), Ibrahim Halil Yavuz, and unknown others, to commit an offence, namely importing a substance, the substance being a border-controlled drug, namely cocaine, and the quantity being a commercial quantity, via boat from Panama to Australia.
The prosecution alleges that Kola and Yavuz recruited AZ to travel to Panama and then bring cocaine back to Australia on a boat.
On 19 May 2014, AZ flew from Adelaide via Sydney to Panama in furtherance of the plan to import cocaine. The prosecution alleges that Londono‑Gomez met AZ in Panama and introduced him to several uncharged conspirators. The planned importation was frustrated, and AZ returned to Australia on 21 July 2014.
The defendants have filed Rule 49 applications seeking a permanent stay of proceedings, or in the alternative, exclusion of prosecution evidence obtained after AZ departed the country.
The gravamen of the applications is that AZ was on bail for unrelated offences at the time that he left Adelaide to fly to Panama. It is said by the defendants that, in permitting AZ to leave the State (and country), the police committed criminal offences, namely, the police:
·did aid, abet, counsel or procure AZ’s breach of bail,
·did aid, abet, counsel or procure AZ’s contempt of court,
·were in contempt of court,
·did aid, abet counsel or procure the charged conspiracy to import cocaine,
or, in the alternative, the conduct of the police was grossly improper. [1]
[1] Written submissions of the applicant (Londono-Gomez) dated 29 August 2022, [4], [5].
The exhibits on the voir dire comprised SAPOL affidavits and annexures[2], AFP affidavits and annexures[3], border force affidavits[4], telephone intercept material[5], court documents[6], an addendum book of documents[7] and the State Police Watch List Alert (SPWLA) request form[8]. Detective Craig Warren Glasson gave evidence on the voir dire.
[2] VDLG1.
[3] VDLG2.
[4] VDLG3.
[5] VDLG4.
[6] VDLG5.
[7] VDK6.
[8] VDP7.
Rule 49 Notice (Londono-Gomez)
By Rule 49 Notice, dated 26 July 2022, the defendant Londono-Gomez seeks an order that further prosecution of the charge be permanently stayed as an abuse of process. In the alternative, he seeks an order that certain evidence be excluded from the trial on the ground of public policy and section 138 of the Evidence Act 1955 (Cth). That evidence can be broadly described as the evidence concerning AZ’s departure from Adelaide on 19 May 2014 through to his return on 21 July 2014 including his surveillance in Panama and intercepted telephone communications during that time.
A supplementary Rule 49 application was filed on 19 August 2022, providing further particulars of the grounds for those orders. The grounds relied upon were firstly that the SAPOL officers and AFP agents aided and abetted AZ breaching bail by leaving the state on 19 May 2014 without the permission of the court. In consequence of that conduct, SAPOL committed:
1.illegality by aiding and abetting the purported conspiracy to import a commercial quantity of a border-controlled drug; and
2. a contempt of court.
In the alternative, it was submitted that if the conduct of the police was not unlawful, the conduct of the police was nonetheless improper, and the use of the court’s procedures would bring the administration of justice into disrepute.
Rule 49 Notice (Kola)
By Rule 49 Notice, dated 25 July 2022, Kola seeks an order that the proceedings be permanently stayed on the ground that the proceedings are an abuse of the court’s process and/or that the proceedings are unjustifiably oppressive.
In the alternative, he seeks an order prohibiting the prosecution form leading the evidence of AZ and his alleged activities following his departure from South Australia on 19 May 2014. The ground for seeking that order is that the evidence was obtained improperly or unlawfully.
On 19 August 2022, Kola filed further particulars. It was said that the conduct of Detective Glasson was unlawful in that he knowingly incorrectly endorsed a document entitled ‘State Police Watch List Alert Request Form’ when, in answer to the question ‘[h]as warrant been issued or is subject to bail’ he selected ‘No’ in circumstances where he knew AZ was subject to a bail agreement. It was said that the conduct amounted to aiding and abetting a breach of bail, to a contempt of court, to aiding and abetting a contempt of court and/or to aiding and abetting the charged conspiracy.
In the alternative, it was submitted that if the conduct alleged was inadvertent, the failure to correct it was a positive act which amounted to the offending alleged.
In the alternative, it was submitted that the conduct alleged was either reckless in the sense of being heedless or indifferent or seriously negligent such that the court in exercising its judicial power cannot tolerate or be part of it.
In the alternative, and in addition, it was submitted that there is impropriety in the delay of the prosecuting authorities (be they South Australia Police, Australian Federal Police or Commonwealth Director of Public Prosecutions, or any combination of the aforementioned) in bringing these proceedings.[9]
[9] Kola did not expand on this alternative.
In the alternative, and in addition, the Crown has obtained forensic advantage as a result of the unlawful or improper conduct, namely, information which would tend to assist the prosecuting or law enforcement authorities in identifying the substance said to be the subject of the charged conspiracy.[10]
[10] Kola did not expand on this alternative other than to make reference in written submissions to forensic advantage and disadvantage generally in the context of the application for a stay: Outline of Argument (Kola), [46]–[48].
Chronology
The facts relevant to the applications are largely not in dispute.
On 30 January 2014, SAPOL commenced ‘Operation Deluge’, a task force formed to investigate Kola and his associates who were suspected of trafficking large commercial quantities of cannabis interstate. Detective Sergeants Craig Glasson and John Halliday were lead investigators in the operation.
In February 2014, covert surveillance commenced. Telephone intercept warrants were obtained on mobile services used by Kola.
Over the period 13 to 15 May 2014, SAPOL became aware that Kola had spoken to others about sending someone to Panama to collect ‘lady’ (purportedly code for cocaine). At that time, Londono-Gomez was in South America. The SAPOL came to understand that the person to be sent to Panama was AZ and he would be leaving for Panama the following week.
AZ on bail
In that period of 13 to 15 May 2014, the SAPOL knew that AZ was on bail. A condition of his bail was that he not leave the state for any reason except as allowed under the Bail Act 1985 (SA).
On 20 March 2014, AZ had been arrested by SAPOL, charged with sexual offences, and granted bail by SAPOL.[11] AZ’s bail agreement required him to attend the Elizabeth Magistrates Court on 7 May 2014 at 10:00am ‘or at any other time when called on and, subject to any direction in this agreement to the contrary, to be present throughout all proceedings relating to this matter until the matter is disposed of’. On 7 May 2014, AZ appeared before Magistrate Chin in the Elizabeth Magistrates Court in relation to those charges. The matter was adjourned to 16 July 2014.
[11]Exhibit VDLG5, document 4.
The PACE alert
On 15 May 2014, Glasson and Halliday advised Superintendent Steven Taylor that AZ intended to travel to Columbia, meet another person and then sail back to Australia in a yacht with a large cargo (400kg) of cocaine. They advised Taylor that if AZ left the jurisdiction, he would be in breach of his bail agreement. Taylor supported the proposal that SAPOL not prevent AZ leaving the state/country.
Glasson prepared a State Police Watch List Alert (SPWLA) request forms to raise a Passenger Analysis Clearance and Evaluation (PACE) alert in relation to various persons of interest, including AZ.[12] Glasson described it as a request for the Department of Home Affairs to conduct enquiries with specified persons leaving or returning to Australia.[13] On the SPWLA request form, the following was stated about the process:
The Australian Customs and Border Protection Service (ACBPS) alert system, Passenger Analysis Clearance and Evaluation (PACE) is a computer‑based system, which permits identification of wanted/suspected persons at the time of their arrival/departure from Australia.
The AFP, on behalf of another agency, can create an alert on the ACBPS PACE system. The PACE alert system will identify the subject of the alert at the ACBPS Primary Line at the time of their arrival/departure, allowing the AFP and ACBPS to investigate and respond where appropriate.
The AFP acts as a third party to facilitate raising alerts on the Customs PACE system. As a result, the AFP accepts no responsibility for actions taken as a result of inaccurate alert details.
Within the AFP, the AFP Operations Coordination Centre (AOCC) Alerts Response Team is responsible for the management of all alerts. The AOCC has Response teams which operate 24/7 and will facilitate all arrangements after hours.
[12]VDP7 is the form completed in relation to AZ.
[13]Affidavit of Craig Glasson dated 13 August 2021, [3], VDLG1.
On 15 May, the SPWLA request form completed by Glasson was sent by SAPOL to the AOCC and a PACE alert was created.[14] The request form was reviewed by Federal Agent Saunders (Senior Team Member, AOCC) who then sent an email to SAPOL confirming that an alert had been created in relation to AZ. The creation of an alert meant that any movements by AZ through a Customs monitored port would trigger an activation, resulting in the AOCC alerts team receiving an automated email with an alert match notification attached, notifying of the travel movement.[15]
[14]Affidavit of Timothy Peter Saunders dated 10 August 2022, [8]-[11], VDLG2.
[15]Affidavit of Timothy Peter Saunders dated 10 August 2022, [13], VDLG2.
On the SPWLA request form, Glasson requested that, on AZ’s outward journey, customs officers undertake a covert bag examination and obtain a copy of the PAX card.
Joint AFP operation
On 16 May 2014, Federal Agent Poppy and Federal Agent Coldwell met with Glasson. Poppy and Coldwell were advised that SAPOL had instigated border alerts for all persons of interest in the investigation, including AZ. The AFP commenced a parallel investigation based on that information, called ‘Operation Acclimatise’. Poppy was the lead investigator and stayed in regular contact with Glasson and Halliday. Coldwell was the initial case officer.
AFP aware that AZ on bail
On 16 May 2014, AFP records show that Poppy created and/or saved documents called ‘POI Profile- AZ’ and ‘Offender Summary Report – AZ’. The documents contained information copied from SAPOL systems, including details of AZ’s bail conditions.[16]
[16] Affidavit of David Andrew Coldwell dated 10 August 2021, [10], VDLG2.
Poppy does not now have a recollection of the bail conditions imposed on AZ but says he was aware at the time that AZ had pending matters at the Magistrates Court.[17]
[17] Affidavit of Robert James Poppy dated 12 August 2022, [17], VDLG2.
Coldwell does not now have a recollection of AZ being on bail but acknowledges that it is likely that he was generally aware that AZ had matters pending at court and was therefore likely to have bail conditions applicable to him at that time.[18]
[18] Affidavit of David Andrew Coldwell dated 10 August 2021, [20], VDLG2.
AZ departs the country
On 16 May 2014, AZ went to the flight centre with Kola and Yavuz. He went back later that day with Yavuz and paid cash for a return flight to Panama, leaving on 19 May 2014 and returning on 5 June 2014.
On the morning of 19 May 2014, AZ departed on a flight from Adelaide to Sydney, carrying only hand luggage.
At 1:09pm, the alerts team received an automated email notifying that AZ was intending to depart Australia.[19]
[19]Affidavit of Timothy Peter Saunders dated 10 August 2022, [15], VDLG2.
A member of the alerts team contacted Glasson who advised that Poppy would contact her.[20] Poppy did so and requested that customs officers at Sydney Airport take additional actions to those initially requested by Glasson on the SPWLA request form. The request included that AZ’s baggage be searched, his phone downloaded and an image taken. The member of the alerts team communicated those additional actions to customs officials in Sydney. [21]
[20]Affidavit of Timothy Peter Saunders dated 10 August 2022, [19]-[20], VDLG2.
[21]Affidavit of Timothy Peter Saunders dated 10 August 2022, Annexure E, VDLG2.
AZ was searched by a customs officer in Sydney. AZ then left Australia that afternoon on a flight to Los Angeles, en route to Panama City.
AZ in Panama then returns to Australia
The police monitored telephone communications during the time that AZ was in Panama and after his return.
AZ failed to board the return flight to Australia on 5 June 2014 as scheduled. There were ongoing issues with the boat and related paperwork for the return journey to Australia.
On 16 July 2014, AZ failed to attend the Adelaide Magistrates Court to answer his bail. A bench warrant was issued for his arrest.
On 21 July 2014, AZ returned to Australia. He was arrested at the Adelaide airport on a warrant.
On 22 July 2014, AZ appeared in Court and pleaded guilty to breaching his bail by leaving the state on 19 May 2014.
Unlawfulness or Impropriety
I am satisfied that before AZ departed his flight from Adelaide the SAPOL officers and the AFP Federal Agents were aware that AZ was on bail on condition that he not leave the state.
The defendants submitted that the conduct of SAPOL in allowing AZ to leave the state/country was unlawful, namely they were complicit in the crimes committed by AZ or were in contempt of court. In the alternative, if their conduct was not unlawful, it was said to be grossly improper.
The act or omission on the part of the police said to form the basis for criminal liability was (i) a positive act by Glasson in ‘knowingly incorrectly’ endorsing the SPWLA request form by selecting the ‘No’ box in answer to the question whether AZ was on bail and/or (ii) an omission by SAPOL (and the AFP) to act so as to prevent AZ leaving the state/country.
Glasson’s completion of the SPWLA form
On the SPWLA request form completed by Glasson, there was a section which asked ‘has warrant been issued or is subject on bail’ and which set out two boxes, one for ‘Yes’ and one for ‘No’. The ‘No’ box was marked. That was incorrect because AZ was on bail at the time.
In an affidavit,[22] Glasson said he had no recollection of marking the ‘No’ box. He described it as an administrative error.
[22]Affidavit of Craig Glasson, dated 16 August 2021, VDLG1.
Glasson gave evidence on the voir dire that the SPWLA form was an AFP form. SAPOL did not have a blank form. He had previously completed forms for other people involved in the investigation (Yavuz or Kola). He said, ‘basically I opened up one of those documents and updated that document with AZ’s details’.[23] He overlooked changing the marked ‘No’ box regarding bail.
[23]T22.
In written submissions made prior to Glasson’s evidence, the defendants submitted that Glasson deliberately marked the ‘No’ box with an intention to deceive the AFP or the ACBPS. The importance of the form and the prominence given in the form to the issue of bail was said to render unlikely Glasson’s mistaken entry. AZ’s bail status must have been at the forefront of Glasson’s mind, adding to the incredulity of his mistaken entry explanation. It can be reasonably inferred that Glasson, either with or without the knowledge of the AFP, deliberately concealed AZ’s true bail status because he was fully aware that the proposed operation involved unlawful or improper conduct.[24]
[24] Written submissions of the applicant (Londono-Gomez) dated 29 August 2022, [44]-[47].
I reject the submissions made by the defendants. I do not consider that Glasson deliberately concealed AZ’s true bail status or acted dishonestly in any respect when completing the SPWLA request form.[25] In his affidavit he stated that that he had ‘no intention to deceive the AFP or the Australian Customs and Border Protection Service as to AZ’s bail status’.[26] He gave evidence to the same effect.
[25] It was not put to Glasson in cross-examination that he acted deliberately to conceal AZ’s bail status or acted dishonestly.
[26] Affidavit of Craig Warren Glasson dated 16 August 2021, [5], VDLG1.
I accept Glasson’s evidence that he prepared this SPWLA request form by using a prior SPWLA request form for Kola or Yavuz and when changing the details to AZ, he overlooked changing the marked ‘No’ box to a marked ‘Yes’ box. I find that to be a credible explanation. He did not positively mark the ‘No’ box. Rather, he failed to change the marked ‘No’ box from the prior form which had been completed for one of the other persons of interest.
There is no force in the contention that Glasson was intending to mislead anyone about AZ’s bail status. First, Glasson spoke to Taylor and Halliday about AZ’s bail status. Second, the day after the SPWLA request form was submitted, the AFP set up a joint operation with SAPOL and were regularly in contact with Glasson. By 16 May 2014, Poppy and Coldwell knew that AZ was on bail. The conditions of bail were set out in the information downloaded by the AFP about AZ on that date.
Third, there is no evidence that a marked ‘No’ box could have misled the AOCC or customs officials in any practical way. Regardless of whether the ‘Yes’ or ‘No’ box was marked, the SAPOL did not intend to prevent AZ from leaving the country. Glasson was not sure whether the AOCC or customs had any authority to stop AZ, but his understanding was that SAPOL would advise the AOCC/customs officers that SAPOL did not want to act on the breach of bail at that time. In my view, the evidence established that when a PACE alert is activated, the AOCC/customs officers act in accordance with the directions of the police force who requested the PACE alert. They do not act on their own volition. They do not override the investigators. When submitting the SPWLA request form, Glasson expected the AOCC to notify him if AZ was at the airport. That is consistent with the evidence regarding the nature of a PACE alert and the role of the AOCC/customs officers when a PACE alert is in place.
Further, the prosecution submitted that even if the ‘Yes’ box had been ticked, a Customs officer had no power to arrest or detain AZ for breach of bail or contempt of court.[27] I agree.
[27] Supplementary Prosecution Written Submissions – voir dire dated 2 September 2022, [22]–[35].
The powers of a Customs officer for ‘Arrest and related matters’ are contained within Subdivision H, Division 1, Part XII of the Customs Act 1901 (Cth) (Customs Act). There is power to arrest if there is a belief on reasonable grounds that the person has committed or is committing one or more of a number of specified offences and that proceedings by summons would not achieve one or more of the stated purposes. An offence under s17 of the Bail Act (breach bail) and s45 of the Magistrates Court Act 1991 (SA) (contempt in the face of court) were not within the ambit of specified offences.
The powers of a Customs officer to detain are set out in Division 1BA, Part XII of the Customs Act. An officer may detain a person if the officer has reasonable grounds to suspect that the person has committed, or is committing a serious Commonwealth offence or prescribed State or Territory offence. An officer may detain a person who is on bail for a prescribed State or Territory offence. As at 19 May 2014, no State offences had been prescribed.
I find that Glasson did not commit a positive act by marking the ‘No’ box on the SPWLA request form. Further, he did not commit a positive act by submitting the form to the AOCC. The form was submitted by Brevet Sergeant Julie Williams, SAPOL.[28]
[28] Affidavit of Timothy Peter Saunders dated 10 August 2022, [11].
Even if a positive act, for the purpose of any accessorial liability, could be regarded as his provision of the incorrectly marked SPWLA request form to someone in SAPOL (possibly Brevet Sergeant Julie Williams), then I find that he had no intention at the time of any such act of aiding, abetting, counselling or procuring any offence committed by AZ. He could not have intended that such an incorrectly marked form would assist the commission of any offence by AZ because he knew that the SAPOL were not going to prevent AZ leaving the country in any event and, upon the activation of the PACE alert, it was not the role of the AOCC or customs officers to decide or act to the contrary.
Police complicity in AZ’s breach of bail (by omission)
There is no dispute that AZ breached his bail when he left South Australia to fly to Sydney and then overseas. The offence is set out in section 17 of the Bail Act. It provides that ‘a person who, without reasonable excuse, contravenes or fails to comply with a term or condition of a bail agreement is guilty of an offence’. AZ pleaded guilty to that offence on 22 July 2014.
It was submitted on behalf of the defendants that Taylor, Glasson and Halliday, knowing AZ’s bail status, aided and abetted AZ’s breach of bail by omission, that is, by failing to prevent him from leaving the state/country.[29]
[29]Written submissions of the applicant (Londono-Gomez) dated 29 August 2022, [55].
Section 267 of the Criminal Law Consolidation Act,1935 (SA) provides that ‘a person who aids, abets, counsels or procures the commission of an offence is liable to be prosecuted and punished as a principal offender’. To prove guilt by way of accessorial liability, the prosecution must prove:
(1) the principal committed the offence charged;
(2)the accessory knew the essential facts which make up the offence charged; and
(3)the accessory intentionally aided, abetted, counselled or procured the offence charged.
For the purpose of these applications, it is not necessary to resolve the differing submissions about the specific common law meanings of the terms aid, abet, counsel or procure.[30] It is now accepted that the terms substantially overlap and are generally descriptive of a single concept.[31] I proceed on the basis that the accessory must have intentionally assisted or encouraged the commission of the crime in some way.
[30] Written submissions of the applicant (London-Gomez) dated 29 August 2022, [57]–[68]; Prosecution written submissions – voir dire dated 30 August 2022, [6] – [13].
[31]Giorgianni v Queen (1985) 156 CLR 473 at [493].
The general law principle is that criminal liability does not attach to an omission, save the omission of an act that a person is under a legal obligation to perform.[32] In R v Iannelli,[33] Handley JA in the New South Wales Criminal Court of Appeal said the following:
These convictions therefore depend essentially on omissions. Criminal Liability for mere omissions in Anglo-Australian law is exceptional unless it has been expressly imposed by statute. Glanville Williams, Criminal Law. The General Part, 2nd ed (1961) London, Stevens & Sons Ltd, at 3-5 states:
In some instances an omission will create criminal responsibility without any positive act … In law, as in morals, the concept of culpable omission presupposes a duty to act; and a rule penalising an omission must state to whom this duty belongs … the criminal law does not impose a duty upon someone to act to prevent a consequence whenever it imposes a duty not to bring about the consequence. The law relating to omissions is not co-extensive with the law relating to acts. It is partly coincident in manslaughter and murder, but here the event of death leads the law to look upon the omission with special severity. Most crimes, particularly those at common law, are defined to need a positive act…
[32]DPP (Cth) v Poniatowska (2011) 244 CLR 8 at [29].
[33](2003) 56 NSWLR 247.
Lord Hailsham, ed Halsbury’s Laws of England, 4th ed, Vol 11 (1976) London, Butterworths at 15 is to the same effect:
9. Omissions. As a rule the criminal law imposes no obligation on persons to act so as to prevent the occurrence of harm or wrongdoing. there is no general duty to prevent the commission of crime; nor does a person commit a crime or become a party to it solely because he might reasonably have prevent its commission. Omission to act arises at common law or is imposed by statute. Such a duty is exceptional and the criminal law does not ordinarily require a man to be his brother’s keeper.
If a person is under a legal obligation to perform an act, their deliberate omission to do the act, if done with the intention of aiding or abetting another to commit the offence, may give rise to criminal liability. The duty or obligation to perform the act must be a legal duty or obligation.[34]
[34] Supplementary prosecution written submissions – voir dire dated 2 September 2022, [8]–[10];
Written submissions of the applicant (Londono-Gomez) dated 29 August 2022, [69].
The defendants referred to several common law duties which have been considered in the context of a failure to act and criminal liability[35], but none of those duties are applicable to these circumstances. The defendants did not identify any authority for a common law duty or obligation on the police which may give rise to criminal liability on the part of the police for a failure to stop a person leaving the state/country in breach of a bail agreement.[36]
[35] Written submission of the Applicant (Londono-Gomez) dated 29 August 2022, [70].
[36]T46.
The defendants submitted that there is a legal duty upon SAPOL officers to prevent the commission of offences. The source of that legal duty was said to be a statutory duty[37] found in schedule 3 of the Police Regulations 1999 (SA) made under the Police Act 2014 (SA) which sets out the form of oath or affirmation for a member of SAPOL:
“I, AB, do swear [or I, AB, do solemnly and truly declare and affirm] that I will well and truly serve Her Majesty Queen Elizabeth II and her heirs and successors according to law, as a member of South Australia Police, without favour or affection, malice or ill-will; that to the best of my power I will cause Majesty’s peace to be kept throughout the State and prevent the commission of offences against the peace or against the laws of the state; and that I will faithfully discharge all duties imposed on me as a member of South Australia Police – [so help me God!] Taken at: this day of 20 Before me Justice of the Peace:”
It was submitted that SAPOL officers are ‘under a sworn legal duty to uphold the law and prevent the commission of crime. The police do not have a licence to be selective about the offences they are obliged to prevent. Even if they genuinely believed that the investigation of the drug conspiracy was important such a belief does not vitiate their complicity in the bail offence’.[38]
[37]T49.
[38]Written submission of the Applicant (Londono-Gomez) dated 29 August 2022, [71].
For the Commonwealth DPP, Mr Henchliffe QC directed attention to Regulation 10 of the Police Regulations 1999 (SA) which was as follows:
10 – Duties of all members of SA Police
Every member of S.A. Police must use all lawful means in his or her power – to uphold the law, preserve the peace, prevent crime and carry out the other functions of S.A. Police; and
to ensure that all employees under his or her commence perform their duties efficiently and in a proper manner.
It was submitted by the prosecution that ‘a generally expressed duty to prevent crime does not mean that a failure by a SAPOL officer to immediately take positive steps to prevent the commission of a crime renders that officer guilty as an aider or abettor of the crime that was committed’.[39]
[39]Supplementary Prosecution written submissions – voir dire, 2 September 2022, [16].
I agree with the submissions made by the Commonwealth DPP. The duty described in Regulation 10 and the schedule 3 oath/affirmation is a generally expressed duty of office. It is not a statutory duty which makes police officers criminally responsible for failing to prevent the commission of any crime. A statutory duty which gives rise to criminal responsibility for an omission to act is exceptional and would need to be clearly and specifically expressed in legislation, not in a regulation or the terms of a schedule 3 oath/affirmation. I do not consider that the generally expressed duties of office relied upon by defendants create a specific legal duty or obligation upon police officers to immediately arrest a person for a breach of bail with the consequence that a failure to so act may give rise to criminal liability on their part.
Glasson was cross-examined about the existence of a duty to prevent AZ leaving the state/country. He was asked about why he spoke with Superintendent Taylor before sending the SPWLA request form. He agreed with the following proposition, ‘you believe you needed permission because you had a duty to stop this man leaving the State in breach of bail ordinarily’.[40] Glasson then explained that his understanding was that under the Bail Act, ‘we may act on any breaches. There is nothing within the Bail Act that tells us we must’.[41]
[40]T30–31.
[41]T31.
Glasson is correct. Section 18(2) of the Bail Act empowers a police officer to arrest a person for a breach of bail without a warrant as follows:
(2) A police officer may arrest without warrant a person released on bail if he or she has reasonable grounds for believing that the person‑
(a)intends to abscond; or
(b)is contravening or failing to comply with a bail agreement; or
(c)has contravened or failed to comply with a bail agreement.
Upon forming the reasonable belief, it is not mandatory for a police officer to arrest the person for breaching bail. A police officer may arrest. It does not state that a police officer must arrest, or indeed that a police officer must immediately arrest. There is no statutory duty to arrest a person for breach of bail, which would give rise to criminal liability on the part of a police officer for failing to do so.
I do not consider that the SAPOL officers (Glasson in particular), by deciding not to prevent AZ leaving the state/county, did aid, abet, counsel or procure the breach of bail offence committed by AZ. There was no legal duty upon them to so act.
Police in contempt of court (by omission)
The defendants submitted that the police, by permitting AZ to leave the state/country, were complicit in AZ’s contempt of court or were themselves in contempt of court. It was said that:
·at the time that AZ left the state/country, he was on a ‘court-ordered’ bail agreement.[42]
·SAPOL and the AFP police were guilty of contempt of court ‘by allowing AZ to breach his bail agreement’.[43]
·deliberate disobedience of a court order is a contempt of the court and third parties who assist are guilty of contempt as principals.[44]
·Glasson positively assisted AZ to breach the bail orders by completing the SPWLA in a manner designed to mislead as to AZ’s bail status. Further all relevant SAPOL and AFP officers knowingly thwarted the bail order by allowing AZ to get out of the State in defiance of the orders made in the Magistrates Court.[45]
[42]T42, 43, 50.
[43]Written submission of the Applicant (Londono-Gomez) dated 29 August 2022, [75].
[44] Written submission of the Applicant (Londono-Gomez) dated 29 August 2022, [75] – [76]; Zhu v Treasurer of NSW [2004] HCA 530; 218 CLR 530. An alternative submission of derivative liability is made in the Outline of Kola at [28] – [41] but Kola makes the primary contention that ‘SAPOL, Glasson in particular and probably Halliday and Taylor’ are guilty of a contempt of court as principals in the first degree’ [34] and adopts the relevant written submission of Londono-Gomez at [28].
[45]Written submission of the Applicant (Londono-Gomez) dated 29 August 2022, [73].
The first consideration is whether AZ was on ‘court-ordered’ bail at the time he left the state/country. If there was such a court order, the second consideration is whether the police were guilty of being complicit in AZ’s contempt of court or were in contempt of court by not preventing him from leaving the state/country.
In relation to the first consideration, AZ was granted bail by a police officer after he was arrested on 20 March 2014 and charged with sexual offences. There is no dispute that the police officer was, at that stage, a bail authority pursuant to s5(1)(e) of the Bail Act: a member of the police force who is of, or above the rank of sergeant or is in charge of a police station, is a bail authority where the alleged offender has not appeared before a court charged with the offence in respect of which he or she has been taken custody. As at 20 March 2014, AZ had not appeared before a court in relation to the charges for which he had just been arrested.
AZ appeared before the Elizabeth Magistrates Court on 7 May 2014. The defendants submitted that, pursuant to s5(1)(e) of the Bail Act, the jurisdiction of the police as a bail authority had ceased which meant that the bail authority had to be the Magistrates Court. The terms of the bail agreement remained the same and the court made an order for the continuation of bail on those terms. [46] The certificate of record was endorsed with ‘bail to continue’.[47] The defendants submitted that the order of the court was that AZ remain on bail on those conditions until he was next required to appear before the Elizabeth Magistrates Court. The court order was the continuation of the bail.
[46]T36, 39 – 40, 51 – 53.
[47]Exhibit VDLG5, document 5.
The prosecution submitted that AZ was not on ‘court-ordered’ bail at the time he left the state/country. There was no court order in that regard.
First, I do not agree with the defendants’ submission that s5(1)(e) should be construed as meaning that a bail agreement authorised by a police officer prior to a person’s appearance before a court will end upon that person’s appearance before a court. Section 5 is focussed upon constituting courts as bail authorities and, when the circumstances set out in s5(1)(e) are met, certain police officers as bail authorities. Those courts and police officers may then exercise the powers and discretions attributable to a bail authority as set out in other parts of the legislation. Plainly, section 5 does not address the nature of a bail agreement, let alone its subsistence.
Second, s6 of the Bail Act is the provision which deals with the nature of a bail agreement.
6 – Nature of bail agreement
(1)A bail agreement with a person who has been charged with, or convicted of, an offence is an agreement under which that person makes an under which that person makes an undertaking to the Crown-
a)subject to any directions in the agreement to the contrary, to be present throughout all proceedings-
i.where the person has not been convicted of the offence-relating to any preliminary examination of the charge and to the hearing and determination of the charge;
ii.where the person is convicted of the offence – relating to sentencing and to any appeal from, or review of, the conviction or any sentence; and
b)to comply with any conditions as to the person’s conduct while on bail stipulated in the agreement; and
c)if the agreement so provides – to forfeit to the Crown a sum stipulated in the agreement if the person fails, without proper excuse, to comply with a term or condition of the agreement.
The bail agreement signed by AZ on 20 March 2014 was an agreement under which he made an undertaking to the Crown that he would be present throughout all proceedings to the determination of the charge and if convicted, at the proceedings thereafter. The nature of a bail agreement, as described in section 6, is that it may be in force until the end of the criminal proceedings. There is no provision in the Bail Act which expressly states that a bail agreement authorised under s5(1)(e) is extinguished upon the first court appearance. Nor do I consider that such an occurrence may be implied.
During the course of the criminal proceedings, a bail agreement may be varied or revoked by the relevant bail authority. When AZ appeared on 7 May 2014 in the Magistrates Court, the bail agreement was not varied or revoked by the court. By operation of s6(1), the bail agreement entered into on 20 March 2014 continued to be in force, requiring AZ to be present throughout all proceedings. It was in force until it was revoked by Magistrate Shepherd on 16 July 2014 when AZ did not attend the scheduled court hearing.
Because of the nature of a bail agreement as described in s6(1), I do not consider there is any requirement for a court to make an ‘order’ that bail continue. Nor if there any there is no provision in the Bail Act which expressly or impliedly deals with such a concept, that is, the need or ability of a court to make an ‘order’ that bail is to continue. Mr Henchliffe submitted that it cannot be inferred from the certificate of outcome that on 7 May 2014, the Magistrate even said the words ‘bail to continue’. The Magistrate may have noted that there was a police bail agreement. Mr Henchliffe submitted that bail always continues unless it is revoked. I agree. Even if the Magistrate did say the words ‘bail to continue’, that does not convert the bail agreement into ‘court ordered bail’. I consider that the reference in the certificate of outcome to ‘bail to continue’ is not an ‘order’ made by the court under any provision of the Bail Act but is akin to a notation that the bail agreement continues, that is, there has been no court order that it be varied or revoked.
If I am wrong and on 7 May 2014 the court became the bail authority for the bail agreement signed by AZ on 20 March 2014, then there is force in the Commonwealth DPP submission that because a bail agreement is an agreement under which the person makes an undertaking to the Crown, not the court, there is no contempt of court by AZ if the bail agreement is breached.[48] In that circumstance, the principal has not committed the offence, so there could be no aiding, abetting, procuring or counselling by SAPOL officers.
[48] Prosecution written submissions – voir dire dated 30 August 2022, [36].
In his written submissions, Kola referred to sections 45 and 46 of the Magistrates Court Act 1991 (SA) and submitted that the concepts readily apply to conduct which occurs outside the court. I do not agree. Those provisions deal with contempt in face of court.[49] Alternatively, Kola placed reliance on contempt of court at common law, describing contempt as ‘an act or omission calculated to interfere with the due administration of justice’.[50] It was submitted that the distinction between a criminal and civil contempt at common law ‘may not be of any real consequence because the officers’ conduct in this case, is at best improper, and at worst criminal. Either amounts to a profound assault on the integrity of the court’.[51]
[49] Outline of argument (Kola), [29]–[30].
[50] Outline of argument (Kola), [30] citing Archbold Criminal Pleading Evidence & Practice 2020 at 28‑32.
[51] Outline of argument (Kola), [33].
I am not persuaded by those submissions that AZ would be guilty of a contempt of court at common law.
If I am wrong about that and AZ would be guilty of a contempt of court, I find that there was no legal duty upon the police to prevent the contempt of court by AZ and so the failure of SAPOL to act did not make them complicit in the contempt.
It was submitted on behalf of Londono-Gomez, that ‘deliberate disobedience of a court order is a contempt of the court and third parties who assist in that regard are guilty of contempt as principals, not as aiders and abettors’.[52] Reference was made to the High Court decision in Zhu v Treasurer of NSW[53] which cited Z Ltd v A-Z and AA-LL[54]. In the former decision, the High Court was considering the defence of justification to the tort of interfering with contractual relations. In the latter decision, the Court of Appeal (UK) was determining the basis of liability for contempt of court when a bank has had notice of the terms of a Mareva injunction. No submission was made on behalf of Londono-Gomez regarding the applicability of those principles to a criminal contempt.
[52] Written submission of the Applicant (Londono-Gomez) dated 29 August 2022, [75].
[53] [2004] HCA 530; 218 CLR 530 at [121].
[54] [1982] 1 QB 558 at 578 D-E.
The submission was made on behalf of Londono-Gomez that ‘Glasson positively assisted AZ to breach the bail orders by completing the SPWLA in a manner designed to mislead as to AZ’s bail status. Further, all relevant SAPOL and AFP officers knowingly thwarted the bail order by allowing AZ to get out of the State in defiance of the orders made in the Magistrates Court’.[55] In relation to the first part of that submission, I have found that Glasson did not complete the SPWLA in a manner designed to mislead anyone in regard to AZ’s bail status. In relation to the second part of that submission, it is not clear from the submission what was the ‘bail order’ or the ‘orders made in Magistrates Court’ which are being relied upon. If it is said that the court made an ‘order’ that ‘bail is to continue’ with a condition that AZ not leave the State for any reason, then, applying the principles relied upon by Londono-Gomez, the police would be liable if they wilfully assisted the person to whom it was directed to disobey it.
[55] Written submissions of the Applicant (Londono-Gomez) dated 29 August 2022, [79].
I do not consider that the police wilfully assisted AZ to disobey the ‘court order’, if there was one. At best, on the defendants’ submission, they failed to stop him leaving the state/country. I have already found that they had no legal duty to act.
I do not consider that the police were in contempt of court for failing to prevent AZ from leaving the state/country.
Police complicity in the charged offence of conspiracy to import cocaine
The defendants do not contend that SAPOL or the AFP officers were principals in the alleged conspiracy.[56] The defendants do submit that the SAPOL and AFP officers did aid, abet, counsel or procure the conspiracy to import cocaine.
[56]Further written submissions of Londono-Gomez and Kola on the voir dire, dated 2 September 2022, [8].
The substantive offence is the offence of importing a commercial quantity of a border control drug contrary to s 307.1(1) of the Code:
(1)A person commits an offence if:
(a)a person imports or exports a substance; and
(b) the substance is a border controlled drug or border controlled plant; and
(c)the quantity imported or exported is a commercial quantity.
Part 2.4 of the Code sets out the various extensions of criminal liability. They are an attempt (s11.1), complicity and common purpose (s11.2), joint commission (s11.2A), commission by proxy (s11.3), incitement (s11.4) and conspiracy (s11.5).
The defendants are charged with conspiring to commit the substantive offence under s 11.5 of the Code:
11.5 Conspiracy
(1) A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.
The defendants submit that ‘the police, at least SAPOL, aided the conspiracy by failing to take steps to prevent AZ leaving the jurisdiction in breach of bail. (In Glasson’s case, he took positive steps to assist by incorrectly filling out the SWPLA request from).’[57].
[57] Further written submissions of Londono-Gomez and Kola on the voir dire dated 2 September 2022, [9].
Section 11.2 of the Code sets out the extension of liability concerning a person who aids the commission of an offence:
11.2 Complicity and common purpose
(1) A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.
(2)For the person to be guilty:
(a) the person’s conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and
(b) the offence must have been committed by the other person.
(3)For the person to be guilty, the person must have intended that:
(a) his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or
(b) his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.
The prosecution submitted that a person cannot aid or abet a conspiracy. A person can aid or abet the commission of the substantive crime but not a conspiracy to commit a substantive crime. The two extensions of liability (ss11.3 and 11.5 of the Code) cannot be added together.[58] I agree with the prosecution submission.
[58]Prosecution written submissions – voir dire – dated 30 August 2022, [23]-[25].
If I am wrong about that, in other words, if a person can aid or abet (s11.2) a conspiracy (s11.5) to commit a substantive offence, the defendants submit that Glasson gave positive assistance to the furtherance of the conspiracy by intentionally completing the SPWLA request form in a misleading manner as to AZ’s bail status.[59]
[59]Written submissions of the applicant (Londono-Gomez), dated 29 August 2022, [85].
I have already found that Glasson did not intentionally complete the SPWLA request form in a misleading manner as to AZ’s bail status. I have also found that the error on the form gave no positive assistance to AZ in leaving the State or country. Section 11.2(2)(a) states that the person’s conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person. Regardless of the error on the form, SAPOL had decided not to prevent AZ leaving the state/country. By that stage, the AFP officers had a joint operation with SAPOL and were to assist in monitoring AZ’s movements whilst he was out of the country. The erroneous bail status set out on the SPWLA request form did not have any impact on the actions of the AOCC or customs officers who were merely acting as agents for the main investigators.
In the alternative, the defendants submit that if there was no positive assistance, then SAPOL were under a sworn legal duty to uphold the law and prevent the commission of crime ‘and no doubt the AFP officers as well’.[60]
[60]Written submissions of the applicant (Londono-Gomez), dated 29 August 2022, [86].
I have already found that Regulation 10 and the schedule 3 oath/affirmation do not create a statutory duty which required the SAPOL to act to avoid criminal liability for AZ’s breach of bail or a contempt of court. It is a long bow to draw to contend that the general duty of office is a legal duty which would render the police guilty of aiding and abetting the conspiracy to import a commercial quantity of cocaine because they decided not to stop AZ leaving the country. In my view, the defendants have not identified a relevant statutory duty on the part of the police which might render their omission a criminal offence.
The defendants have not identified any common law or statutory duty on the part of the AFP which would render their omission to act ‘conduct’ for the purpose of s11.2 of the Code.
I do not consider that the SAPOL or the AFP were complicit in the conspiracy to import a commercial quantity of cocaine by their conduct of failing to prevent AZ leaving the country.
Impropriety
Having found that the police (SAPOL and AFP) did not act unlawfully, I need to consider whether their conduct was improper.
In his affidavit dated 18 August 2022, Detective Chief Superintendent Taylor stated that at the time of the briefing with Glasson and Halliday, he was firmly of the impression that AZ was entrenched with Kola and Yavuz and was fully committed in returning to Adelaide to deliver the cocaine and face his criminal charges. He remembered asking numerous questions to satisfy himself that AZ’s court obligations would be met, but he was well aware that AZ would be breaching his conditions of bail by leaving the county. He said:
I weighed up the flight risk of AZ against the information he was intending on returning – against the potential of losing the opportunity of being able to intercept and stop a significant drug importation. I was also aware that strategies had been implemented to monitor the activities of AZ whilst he was out of the country. Opportunities to disrupt and have an impact on organised crime syndicates are relatively rare and require enormous resources and commitment from law enforcement. It is possible that in the event AZ had not travelled to Columbia in his failed attempt to import a large commercial quantity of cocaine that another person unknown to SAPOL would have taken his place. If this had occurred the potential for 400kgs of illicit drugs to be smuggled into Australia would have been increased.[61]
[61] Affidavit of Stephen Taylor dated 18 August 2022, pages 2–3.
Glasson referred to his discussion with Taylor and Halliday prior to submitting the SPWLA request form. He said their collective decision was based on various factors including the belief that AZ was not going to abscond and had every intention of returning to Australia because he had booked a return ticket for two weeks after his departure. Glasson further stated that consideration ‘was also given to the significant harm caused by illicit drugs in Australia and the opportunity to dismantle a criminal syndicate suspected of planning the import of a large commercial quantity of cocaine’.[62]
[62]Affidavit of Craig Glasson dated 13 August 2021, Exhibit VDLG1 [6].
Glasson gave evidence that he spoke to Taylor because there was a chain of command and ‘decisions like this need to be made by people that are higher ranked than myself’.[63] In re‑examination, Mr Henchliffe asked Glasson about occasions when police are listening to telephone intercepts and become aware that people intend to commit drug trafficking crimes. He was asked about his understanding of the duty in terms of whether the police must then and there prevent every drug trafficking offence from being committed. He answered, ‘if we stopped every drug offence being committed or that came to our attention, then it would virtually be impossible to try and gather a brief that would show the entirety of their offending. That’s why, for example, Mr Kola was allowed to traffic cannabis to Western Australia and the Northern Territory. It was so that we could gather a brief that showed the entirety of his offending’.[64] The prospect of having evidence of offending relating to the suspected importation was certainly relevant to why AZ was not stopped from leaving the State.[65]
[63]T31.
[64]T31-32.
[65]T32.
In his affidavit[66], Halliday stated that he did not believe that AZ intended to abscond or travel for any purpose other than to collect a large quantity of cocaine and return with it to Australia. He had no information that AZ intended to abscond or travel for any other purpose. He was aware that plans were in place to monitor AZ’s activities whilst offshore, which meant that any information requiring assessment or a change of plan would likely have been identifiable. He was not aware of any law, policy or procedure that required SAPOL to take immediate action with respect to AZ breaching bail. He was of the opinion that delaying or not intervening in the breach of bail was a legitimate option and that any action which prevented AZ from leaving would have compromised ongoing investigations into serious State and Commonwealth offences.
[66] Affidavit of Jonathon Richard Halliday dated 15 August 2022, [8]–[11], Exhibit VDLG1.
Discretion to exclude evidence
The defendants submitted that the public policy discretion set out in Bunning v Cross[67] should be exercised to exclude all evidence obtained after AZ left the country on the basis that the police acted unlawfully or improperly.
[67] (1978) 141 CLR 54; written submissions of the applicant (Londono-Gomez), dated 29 August 2022, [120].
I have found that there was no illegality on the part of the police in deciding not to stop AZ leaving the country.
The defendants submitted that the conduct of the police was grossly improper. The defendants did not suggest that the police engaged in entrapment. Nevertheless, it was submitted that the reasons given by the SAPOL officers for allowing AZ to leave the State ‘are an entirely inadequate and unacceptable ex post facto explanation’[68] and reflect a contemptuous attitude to an order made by a court of law[69]. It was submitted that there was a serious risk that AZ would not return to Australia to face serious sexual charges. Taylor, Glasson and Halliday appear to have made their decision without consulting the SAPOL officers who arrested AZ. There was also an appreciable risk that they might lose track of any shipment in any event.[70]
[68] Written submissions of the applicant (Londono-Gomez) dated 29 August 2022, [89].
[69] Written submissions of the applicant (Londono-Gomez) dated 29 August 2022, [94].
[70] Written submissions of the applicant (Londono-Gomez) dated 29 August 2022, [99].
The Commonwealth DPP submitted that there was nothing improper about the police decision not to prevent AZ from leaving the State. The reasons given are logical and cogent. During an investigation, the decision when to end it and arrest offenders will often require tactical considerations, and considerations of sufficiency of evidence. There was no indication that AZ was a serious sexual offender or posed a significant danger to the public. It was a considered and understandable decision given the vast differences in the respective criminality involved and the difficulty of detection of serious drug importation offences and offenders.
I do not consider there was any impropriety on the part of the police which would form a basis for a consideration of the public policy discretion to exclude evidence. The SAPOL decision not to prevent AZ from leaving the country was not taken lightly. Glasson and Halliday brought the issue to the attention of Taylor, who was then a Detective Chief Inspector and held the position of Officer in Charge of the Drug and Organised Crime Task Force within the Serious and Organised Crime Branch. There was no information that AZ was leaving the country to abscond, that is, to never to return to Australia. To the contrary, the information was that his sole reason for leaving the country was to import cocaine into Australia and that he was intending to return to Australia. The police need to make difficult decisions during the course of investigating the commission of criminal offences. I find that the SAPOL officers took into account relevant matters and engaged in an appropriate balancing exercise. AZ was to be monitored whilst overseas. The AFP had joined in the operation. The SAPOL expected that AZ would be back in Australia before the next appearance date in the Magistrates Court. They were investigating the potential importation of a large quantity of cocaine into Australia. There was important intelligence to be gathered in the further monitoring of the persons of interest.
In Ridgeway v The Queen[71], the following was said in relation to police impropriety in the context of the Bunning v Cross discretion (emphasis added):
The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity. It is neither practicable nor desirable to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community. A finding that law enforcement officers have engaged in such clearly improper conduct will not, of course, suffice of itself to give rise to the discretion to exclude evidence of the alleged offences or of an element of it. As with the case of illegal conduct, the discretion will only arise if the conduct has procured the commission of the offence with which the accused is charged.
[71] (1994-1995) 184 CLR 19, 37 (per Mason CJ, Deane J, Dawson J).
I do not consider that the police engaged in any harassment or manipulation. They suspected the importation of the cocaine involved a large quantity of cocaine and involved other persons overseas. They had a proper basis for their suspicions.
If I am wrong about there being no impropriety on the part of the police, I would not exercise my discretion to exclude the evidence obtained after AZ left the country. The exercise of the discretion requires balancing ‘the apparent conflict between the desirable goal of bringing to conviction the wrong‑doer 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’.[72]
[72]Bunning v Cross (1978) 141 CLR 54 at 74.
The relevant considerations include the nature of the offence charged, whether the conduct on the part of the police was deliberate or resulted from a mistake, whether the nature of the conduct affected the cogency of the evidence obtained, the ease with which those responsible might have complied with the law in procuring the evidence in question, and the legislative intention (if any) in relation to the law that is said to have been infringed. It is also relevant to consider whether such conduct is encouraged or tolerated by those in high authority in the police force or, in the case of the legal conduct, by those responsible for the institution of criminal proceedings.[73]
[73]Ridgeway v The Queen (1995) 184 CLR 19 at 37.
The crime alleged against the defendants is a serious one. Whilst there was a deliberate decision made by SAPOL not to immediately arrest AZ, it was not a deliberate decision to act unlawfully. The decision was endorsed by Superintendent Taylor but with no malefides. The decision to let AZ leave the country did not affect the cogency of the evidence obtained thereafter. In my view, the balancing exercise would be against exclusion of the evidence.
Permanent stay
It is well established that there is an inherent jurisdiction in the court to stay proceedings which are an abuse of process.[74]
[74] Williams v Spautz (1992) 174 CLR 509 at 518; Jago v District Court (NSW) (1989) 168 CLR 23 at 25; Rona v District Court (SA) (1995) 63 SASR 223.
The categories of abuse are not closed. The grant of the stay amounts to a refusal by the court to exercise jurisdiction. The power is to be exercised only in the most exceptional circumstances and the court must approach consideration of the exercise of this discretion with caution. The onus is on the defendant to demonstrate the existence of facts which enliven the discretion to order a stay and the onus is a heavy one.[75]
[75]Williams v Spautz at 529.
The defendants did not contend that this was a case involving entrapment by the officers but submitted that the principles expressed in Ridgeway[76] assume importance. It was submitted that if the court accepts the submission of the defendants ‘as to the offences committed by police’ then not only did they commit offences (breach of bail/contempt) ancillary to the conspiracy they were also complicit in the conspiracy itself by aiding AZ in the manner discussed. Further, they have not been subject to any official disapproval or retribution. On the contrary, Taylor, a police superintendent, authorised their illegal conduct. The objective of their criminal conduct will have been achieved. It is respectfully submitted that this court should not be prepared to allow the prosecution to gain a curial advantage derived from police illegality’.[77]
[76](1995) 184 CLR 19.
[77]Written submissions of the applicant (Londono-Gomez), dated 29 August 2022, [109].
The defendants went on to submit that even if the court rejects the submission that the officers were complicit in criminal offences committed by AZ, the impropriety of their conduct was such that the court should stay the proceedings brought against the defendants.
Reference was made to the decision of the High Court in Moti v The Queen.[78]In that case, contrary to the expressed opinion of the acting High Commissioner of Australia, Australian officials were authorised to supply travel documents to Moti and Solomon Island officials to fly him to Australia knowing that those documents would be used to deport Moti before that deportation was lawful. The High Court found that the focus of attention must fall upon what Australian officials did or did not do.
[78] [2011] HCA 50; written submissions of the applicant (Londono-Gomez), dated 29 August 2022, [111]‑[119].
I do not consider that the decision by SAPOL officers not to immediately arrest AZ for breach of bail is akin to the positive steps taken by Australian officials to illegally deport Moti to Australia.
I do not consider there is any basis for permanently staying this prosecution. Neither the SAPOL officers nor the AFP agents acted unlawfully or improperly. Even if I am wrong about that, the power to permanently stay proceedings must be exercised only in the most exceptional circumstances. There is a powerful social imperative for those who are charged with criminal offences to be brought to trial and a permanent stay of prosecution should only ever be granted where there is a fundamental defect in the process leading to trial that cannot be cured by reconstitution of the prosecutorial team, trial directions or other remedy to provide sufficient relief against the consequences of the defect to ensure a fair trial.[79] I do not consider that there is a fundamental defect in the process leading to this trial.
[79] Strictland v DPP (Cth) (2018) 93 ALJR 1 at [106].
If I had found that there was unlawfulness or impropriety on the part of the police, an alternative to ordering a permanent stay of proceedings would have been to exclude the evidence under the Bunning v Cross discretion. A permanent stay of proceedings is a remedy of last resort.
I refuse the applications and decline to order that the proceedings be permanently stayed.
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