R v Ladocki

[2004] NSWCCA 336

CITATION:	REGINA v Peter Ferenc LADOCKI [2004] NSWCCA 336
HEARING DATE(S):	1 September 2004
JUDGMENT DATE:	1 October 2004
JUDGMENT OF:	Mason P at 1; Sully J at 95; Sperling J at 96
DECISION:	Appeal against conviction - dismissed; Appeal against sentence - dismissed
CATCHWORDS:	Evidence Act 1995, s138 - Drug Misuse and Trafficking Act 1985, s25A - police informant - controlled purchase of heroin - Law Enforcement (Controlled Operations) Act 1997 - whether evidence obtained illegally or improperly - whether error in exercise of discretion to admit evidence - whether sentence manifestly excessive. -
PARTIES :	REGINA Peter Ferenc LADOCKI
FILE NUMBER(S):	CCA 2004/1738 CCAP (60160/04)
COUNSEL:	Crown: P Ingram Appellant: T Healey
SOLICITORS:	Crown: R Ramsey Appellant: Harris Wheeler Lawyers

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/31/0148
LOWER COURT JUDICIAL OFFICER :	Coolahan DCJ

CCA 2004/1738 CCAP (60160/04)

MASON P
SULLY J
SPERLING J

Friday 1 October 2004

REGINA v Peter Ferenc LADOCKI

BACKGROUND

Ladocki was convicted by jury on 10 March 2003 of supplying heroin on 3 or more occasions during a period of 30 consecutive days, being an offence under s25A of the Drug Misuse and Trafficking Act 1985. He was sentenced to imprisonment for 7 years and 6 months with a non-parole period of 5 years. On 9 May 2003 Ladocki pleaded guilty to a further charge of supplying heroin. He received a head sentence of 4 years and 6 months, with a non-parole period of 3 years in respect of this charge.

In this Court Ladocki appealed against conviction on the ground of wrongful admission of evidence. He also sought leave to appeal against the sentences on the ground that they were manifestly excessive.

The Crown’s case depended upon the evidence of a police informant “Mr Brown” who had effected three controlled buys at Ladocki’s car yard during November 2001. These controlled buys were conducted under an “Authority to Conduct a Controlled Operation” obtained from the Deputy Commissioner of Police under the Law Enforcement (Controlled Operations) Act 1997. Ladocki argued that the failure of the police to disclose that Mr Brown was addicted to heroin in the application for the Authority meant that the evidence had been obtained in consequence of an impropriety or of a contravention of an Australian law. It was submitted that the trial judge had erred in exercising his discretion under s138 of the Evidence Act 1995 to admit the evidence.

HELD per Mason P (Sully and Sperling JJ agreeing) dismissing the appeal:

1. The legislation does not express a purpose that any and every act done in breach of the Code by the applicant officer should spell the invalidity of an Authority.

2. No error in the judge’s exercise of the s138 discretion has been demonstrated. The appellant’s attack on the judge’s exercise of discretion amounted to no more than an invitation for this court to exercise the s138 discretion afresh. The invitation must be declined.

3. No error has been demonstrated with respect to the sentences imposed or the judge’s reasons for those sentences.

ORDERS:

Appeal against conviction dismissed.

Leave to appeal against sentence granted, but appeal dismissed.

CCA 2004/1738 CCAP (60160/04)

MASON P
SULLY J
SPERLING J

Friday 1 October 2004

REGINA v Peter Ferenc LADOCKI

Judgment

1 MASON P: On 3 March 2003 the appellant was indicted before Coolahan DCJ on the following count:

For that he between 30 October 2001 and 10 November 2001 at Islington in the State of New South Wales did on three or more separate occasions during a period of 30 consecutive days supply a prohibited drug other than cannabis, to wit heroin for financial or material reward.

2 This is an offence contrary to s25A of the Drug Misuse and Trafficking Act 1985 (“the Drug Act”) and it carries a maximum penalty of 3,500 penalty units or imprisonment for 20 years, or both.

3 The appellant pleaded not guilty and was tried by a jury who found a verdict of guilty on 10 March 2003.

4 On 9 May 2003 the appellant adhered to a plea of guilty made in the Local Court (cf Justices Act 1902, s51A) to a charge of supplying heroin on 25 September 2002. That offence, contrary to s25(1) of the Drug Act, carries a maximum penalty of 15 years imprisonment or 2,000 penalty unit fine, or both.

5 On 5 September 2003 the appellant was sentenced as follows:

Indictment: Imprisonment for 7 years and 6 months to commence 7.2.03 and expire 6.8.10. Non-parole period of 5 years to commence 7.2.03 and expire 6.2.08.
S51A document : Imprisonment for 4 years and 6 months to commence 7.2.07 and expire 6.8.11. Non-parole period of 3 years to commence 7.2.07 and expire 6.2.10.

6 The appellant appeals against conviction on the ground of wrongful admission of evidence. He also seeks leave to appeal against the sentences on the ground that they were manifestly excessive.

7 The Crown case depended upon the evidence of a registered police informant “Mr Brown”, who had effected three “controlled buys” at the appellant’s car yard on 1, 8 and 9 November 2001. Brown acted under police supervision and surveillance and his conversations with the appellant were recorded through an authorised listening device. The purchases were effected with money provided by the police, who took possession of the heroin acquired from the appellant shortly after each transaction.

8 On 1 November 2001 Brown paid the appellant $1,050 in return for a package weighing 3.4gm containing a purity of 7.5% of heroin. On 8 November Brown paid the appellant $1,050 in return for a package weighing 5.5gm and a purity of 2.5%. On 9 November Brown paid the appellant $2,100 in return for a package weighing 7gm with a purity of 1.5%.

9 Brown’s evidence was corroborated by the police officers. The intercepted conversations also contained damaging admissions by the appellant. When the appellant was arrested, the police located heroin at his premises together with one of the bank notes previously made available to Brown by the police.

10 Brown gave evidence that he had been a heroin user for about 10 years. He bought his heroin from the appellant, generally in quantities of 3½ grams for a price of $1,000. In cross-examination, he admitted that he was a heroin addict and that he had been under the influence of heroin (obtained from someone other than the appellant) when he effected the first of the controlled purchases.

11 The police officers gave evidence that they knew that Brown was a heroin addict, but they denied that he had shown any signs of being affected by heroin when he was sent to effect the controlled purchases.

12 The appellant gave evidence at his trial. The jury did not accept it and it is not suggested in this Court that they erred in doing so.

13 The sole ground of appeal against conviction concerns the admission of the evidence from Brown and others relating to the controlled purchases. The appellant contended that this evidence had been obtained illegally or improperly and that the trial judge had erred in exercising his discretion under s138 of the Evidence Act 1995 to admit it.

14 The admissibility of the evidence had been determined by Judge Coolahan in August 2002 during a trial that subsequently aborted. His rulings were accepted without further argument for the purposes of the trial in March 2003.

15 The key rulings were given on 26 August 2002 following an inquiry that spanned several days. Evidence was given on the voir dire by Brown and the police officers involved in the operation. Detective Senior Constable Furlonger was the officer in charge of the matter and the applicant for the Authority to Conduct a Controlled Operation hereafter referred to.

16 Ridgeway v The Queen (1995) 184 CLR 19 rejected a substantive defence of entrapment in Australia. The High Court also held that the common law discretion to exclude evidence on the grounds of public policy extended to the exclusion of evidence of an offence, or an element of an offence, procured by unlawful or improper conduct on the part of law enforcement officers. In Ridgeway the unlawful conduct by a law enforcement officer (ie importation into Australia) constituted an essential element of the offence with which the accused was charged.

17 The legislative response to Ridgeway in this State was the Law Enforcement (Controlled Operations) Act 1997 (“the Act”). That Act authorises a law enforcement officer to apply to the Chief Executive Officer of a law enforcement agency for authority to conduct a controlled operation on behalf of the agency (s5(1)). The application must be in writing, supported by the information stipulated in s5(2A).

18 Section 6 provides for the determination of applications in the following terms:

6 Determination of applications
(1) After considering an application for authority to conduct a controlled operation, and any additional information furnished under section 5 (3), the chief executive officer:
(a) may authorise a law enforcement officer for the law enforcement agency concerned to conduct the operation, either unconditionally or subject to conditions, or
(b) may refuse the application.
(2) An authority to conduct a controlled operation on behalf of a law enforcement agency may not be granted unless a code of conduct is prescribed by the regulations in relation to that agency.
(3) An authority to conduct a controlled operation may not be granted unless the chief executive officer is satisfied as to the following matters:
(a) that there are reasonable grounds to suspect that criminal activity or corrupt conduct has been, is being or is about to be conducted in relation to matters within the administrative responsibility of the agency,
(b) that the nature and extent of the suspected criminal activity or corrupt conduct are such as to justify the conduct of a controlled operation,
(c) that the nature and extent of the proposed controlled activities are appropriate to the suspected criminal activity or corrupt conduct,
(d) that the proposed controlled activities will be capable of being accounted for in sufficient detail to enable the reporting requirements of this Act to be fully complied with.
(4) In considering the matters referred to in subsection (3), the chief executive officer must have regard to the following:
(a) the reliability of any information as to the nature and extent of the suspected criminal activity or corrupt conduct,
(b) the likelihood of success of the proposed controlled operation compared with the likelihood of success of any other law enforcement operation that it would be reasonably practicable to conduct for the same purposes,
(c) the duration of the proposed controlled operation.
(5) The chief executive officer must keep a written record of the reasons for which the chief executive officer is satisfied as to the matters referred to in subsection (3) (a).

19 Section 7 provides:

7 Certain matters not to be authorised
(1) An authority to conduct a controlled operation must not be granted in relation to a proposed operation that involves any participant in the operation:
(a) inducing or encouraging another person to engage in criminal activity or corrupt conduct of a kind that the other person could not reasonably be expected to engage in unless so induced or encouraged, or
(b) engaging in conduct that is likely to seriously endanger the health or safety of that or any other participant, or any other person, or to result in serious loss or damage to property.
(2) A person must not be authorised to participate in a controlled operation unless the chief executive officer is satisfied that the person has the appropriate skills to participate in the operation.
(3) A civilian participant:
(a) must not be authorised to participate in any aspect of a controlled operation unless the chief executive officer is satisfied that it is wholly impracticable for a law enforcement participant to participate in that aspect of the operation, and
(b) must not be authorised to engage in a controlled activity unless it is wholly impracticable for the civilian participant to participate in the aspect of the controlled operation referred to in paragraph (a) without engaging in that activity.

20 The authority must state and identify various matters:

8 Form of authority
(1) An authority to conduct a controlled operation may be granted:
(a) by means of a written document, signed by the chief executive officer, or by means of a facsimile transmission of a document so signed (a formal authority ), or
(b) by such other means as are available, including (but not limited to) orally in person, by telephone or by 2-way radio (an urgent authority ).
(2) An authority, whether formal or urgent:
(a) must identify the operation by reference to the plan referred to in section 5 (2A) (a), and
(b) must identify the law enforcement officer who is to conduct the operation, and
(c) must identify each person who may engage in controlled activities for the purposes of the operation, and
(d) must state whether or not any such person may operate under an assumed name, and
(e) must identify:
(i) with respect to the law enforcement participants, the nature of the controlled activities that those participants may engage in, and
(ii) with respect to the civilian participants, the particular controlled activities (if any) that each such participant may engage in, and
(f) in respect of an urgent authority, must specify the period (not exceeding 72 hours) for which the authority is to remain in force, and
(g) in respect of a formal authority, must specify the period (not exceeding 6 months) for which the authority is to remain in force, and
(h) must specify any conditions to which the conduct of the operation is subject under section 6 (1) (a).
(3) A person is sufficiently identified for the purposes of subsection (2) (b) or (c) if the person is identified:
(a) by an assumed name under which the person is operating, or
(b) by a code name or code number,
so long as the assumed name, code name or code number can be matched to the person’s identity by reference to documentation kept by the chief executive officer.
(4) Unless it sooner ceases to have effect, an urgent authority ceases to have effect 72 hours after it is granted.
(5) A chief executive officer who grants an urgent authority must ensure that written notes are kept of the following matters:
(a) the date and time when the authority was granted,
(b) the identity of the law enforcement officer to whom the authority was granted,
(c) the particulars referred to in subsection (2).
(6) The regulations may make provision for or with respect to the following matters:
(a) the procedure for granting an urgent authority,
(b) the keeping of records in relation to an urgent authority,
(c) the form in which a formal authority may be granted.

21 Section 13 provides:

13 Effect of authorities
While it has effect, an authority for a controlled operation:
(a) authorises each law enforcement participant to engage in the controlled activities specified in the authority in respect of the law enforcement participants, and
(b) authorises each civilian participant (if any) to engage in the particular controlled activities (if any) specified in the authority in respect of that participant.

22 Section 13A provides:

13A Defect in authority
An application for an authority or variation of authority, and any authority or variation of authority granted on the basis of such an application, is not invalidated by any procedural defect, other than a defect that affects the substance of the application, authority or variation in a material particular.

23 Section 16 provides:

16 Lawfulness of controlled activities
Despite any other Act or law, an activity that is engaged in by a participant in an authorised operation in the course of, and for the purposes of, the operation is not unlawful, and does not constitute an offence or corrupt conduct, so long as it is authorised by, and is engaged in in accordance with, the authority for the operation.

24 Section 20 provides for regulations prescribing codes of conduct, subsection (5) providing:

(5) Contravention of the code of conduct for a law enforcement agency by any person (including a law enforcement officer) employed within that agency is taken to be misconduct for the purposes of any disciplinary proceedings taken against that person with respect to the contravention.

25 Section 27 provides:

27 Evidentiary certificate
A certificate:
(a) that is issued by the chief executive officer of a law enforcement agency, and
(b) that states that, when granting or varying an authority, the chief executive officer was satisfied as to matter specified in the certificate,
is admissible in any legal proceedings and is conclusive evidence that the chief executive officer was satisfied as to those matters.

26 A single code of conduct has been prescribed by Schedule 1 of the Law Enforcement (Controlled Operations) Regulations 1998, applying to all law enforcement agencies.

27 For the purpose of this case it is sufficient to set out cl 1 and the headings to the remaining 8 clauses of the Code.

1 Applicants for authorities to act in good faith
(1) In making an application for an authority, or for a variation of an authority, the applicant must at all times act in good faith.
(2) In particular, the applicant must ensure that the application:
(a) discloses all information of which the applicant is aware as to the circumstances giving rise to the application, especially those that could affect the way in which the application will be determined, and
(b) does not contain anything that is incorrect or misleading in a material particular.
(3) If the applicant subsequently becomes aware of information that, had it been known to the chief executive officer when the application was determined, could have affected the way in which the application would have been determined, the applicant must ensure that the information is given to the chief executive officer as soon as practicable.
2 Disclosure of changed circumstances
3 Participants to be properly briefed
4 Obligations of law enforcement participants with respect to their own actions
5 Obligations of law enforcement participants with respect to the actions of others
6 Reports to be made in good faith
7 Breaches of code to be reported
8 Relationship to other codes of conduct

28 In the voir dire inquiry, Detective Furlonger gave evidence that he had applied for and obtained from the Deputy Commissioner of Police an Authority pursuant to the Act. Deputy Commissioner Moroney acted by delegation (cf s29 of the Act).

29 Detective Furlonger had been responsible for compiling the information that went into the written Application. Both the Application (with portions deleted because of public interest immunity) and the Authority were tendered in the voir dire.

30 The Application disclosed detailed intelligence about the appellant’s ongoing activities as a heroin supplier. Considerable information about the registered informant, Brown, is also provided, including reference to him obtaining heroin from the appellant, using it and selling it at street level on the appellant’s behalf. It was stated that Brown had demonstrated an adherence to police instructions in the past.

31 Brown was put before the Deputy Commissioner as a proposed civilian participant (cf s7). The Application stated Detective Furlonger’s belief that Brown had the appropriate skills to participate (cf s7(2)) on the following basis:

CIN2243 has had an ongoing association with LADOCKI for the past three to four years. During that time the informant CIN2243 has met with LADOCKI countless times and personally negotiated with LADOCKI for the supply of Heroin from LADOCKI to the registered informant. The meetings and negotiations have always only involved the informant CIN2243 and LADOCKI. There has never been a third person directly involved in any of their negotiations and transaction.

CIN2243 lifestyle and experience make the informant familiar with drug transactions, how they are carried out and the terminology used. CIN2243 has already been accepted by the target as having the appropriate skills to take part in drug transactions and negotiations. CIN2243 previous criminal dealings provide the informant with the expertise, reputation and knowledge to take part in the operation.

32 The Application further stated that:

The proposed activities are not likely to seriously endanger the health or safety of any person or to result in serious loss or damage to property. My grounds for holding this view include:
There is no requirement that drugs would be required to be consumed by any participant in the transaction….

33 Detective Furlonger and other police officers were questioned on the voir dire as to their knowledge concerning the detailed information that went into the Application and as to why certain matters were or were not included in that Application or were or were not brought to Deputy Commissioner Moroney’s attention subsequently, in accordance with cl 1(3) of the Code.

34 Detective Furlonger agreed in cross-examination that he believed that the informant was a heroin addict and he agreed that this matter had not been stated in the Application. He also agreed that addicts can be completely unreliable and that they tell lies (Tr p36). He denied that he was aware of any illegal activities of the informant beyond those involved in self-injecting with heroin and dealing in heroin at street level supplied by the appellant (Tr pp34-5, 50-51, 53, 60). He also denied that he had acted in bad faith in withholding the fact that the informant was an addict.

35 The Crown Prosecutor submitted that the judge would be satisfied as to the legality of the Authority. There was no deliberate misleading or withholding of material information. No reliance was placed on s13A (Tr p55). It was common ground that, if the Authority was valid, the combined effect of the Authority and the Act would remove any question of illegality or impropriety as regards the evidence proposed to be tendered at the trial relating to the controlled operation.

36 The defence argued that the Act was passed to remove the uncertainty created by Ridgeway. Reference was made to statements in the second reading speech about the accountability mechanisms in the Act. It was submitted that it was mandatory that information about Brown’s known addiction to heroin should have been included in the Application. Detective Furlonger had not acted in good faith in withholding information, but it did not matter even if he had simply been incompetent and/or ignorant of the Act’s requirements (Tr pp68-9).

37 Judge Coolahan reserved his decision over the weekend. On Monday 26 August 2002 he ruled (in his first judgment given that day) that he would not admit the Authority or the s27 Certificate into evidence.

38 His Honour identified the central issue as being whether the Authority had been validly obtained. He said that the real challenge on that account came not from the Act itself, but from the Code of Conduct established pursuant to the Act.

39 As to the Act, his Honour noted that it was conceded that the Crown had established the pre-requisites under s5. In light of the s27 Certificate issued by Deputy Commissioner Moroney there was conclusive evidence that that officer was satisfied as to the matters addressed in s6.

40 Turning to the Code, his Honour referred to the terms of cl 1 (set out above). His critical reasoning was as follows:

Time does not permit a thorough review of the evidence on the voir dire, as it spans some four days. However, one of the issues raised in relation to the application was a failure at any time on the part of the applicant to notify the Deputy Commissioner of Police, the delegate of the Chief Executive Officer, of the fact that the registered informant was a longstanding heroin addict. It became clear during the course of the evidence that this was in fact the case. Detective Furlonger really stated in his evidence that he was not aware of that to be the case, at least not at the stage when he made the application. The application certainly refers to the registered informant having been a heroin dealer. Detective Furlonger maintained that a reading of the application would lead to the inference that he was also an addict. However, on my reading of the application this inference is not available.
There was further evidence from other police officers which made it clear that, at least before the controlled operation was completed, the fact that the registered informant was a heroin addict was clear. In my view this was a material factor which should have been disclosed, if not in the application then very soon after the authority was granted, and it was a matter that may have affected the decision of the Deputy Commissioner as to whether or not an authority would be granted under the Act. It is one thing for an operative to have been involved in dealing in prohibited drugs, but it is well-known and the experience of these courts is not all dealers are users. The fact that a person is a heroin addict in my view could well have affected the reliability of the informant and was a matter, as I say, which was material to the application to issue the authority.
So in that regard I am of the view that on the probabilities the Crown has not satisfied me that the requirements of para 1 of the Code of Conduct have been complied with. Accordingly I would not allow the admission of the authority or the certificate into evidence.

41 The judge then heard argument on the question whether the evidence about the controlled operation ought to be admitted under s138 of the Evidence Act. At the conclusion of that argument he ruled (in what is hereafter referred to as the “second judgment”) that he would admit the evidence. His reasons disclose that he recognised that the persuasive onus rested upon the Crown. His Honour addressed those portions of s138(3) that had been referred to, concluding as follows:

I adopt the arguments of the learned Crown Prosecutor, without going into them in detail, and in particular the comments of the Court of Criminal Appeal in the unreported decision of Salem . It seems to me that when one undertakes the balancing act required of weighing against each other the two competing requirements of public policy as set out by the High Court in Bunning v Cross , in this case the balance comes firmly down on the side of the Crown and I would allow the admission of the evidence.

42 In this Court the appellant challenged the reasoning upon which this conclusion was based. It was submitted that his Honour erred in five respects which are later identified.

43 Section 138 provides:

138 Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence, and
(b) the importance of the evidence in the proceeding, and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and
(d) the gravity of the impropriety or contravention, and
(e) whether the impropriety or contravention was deliberate or reckless, and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

The contestable assumptions on which the s138 issue was addressed

44 There are vital threshold issues that received scant attention in the District Court and not much more in the submissions to this Court.

45 Section 138(1) enacts a qualified prohibition on the admission of evidence of a particular character. The section’s relevance, if any, to the present trial concerned its potential to exclude a band of evidence vital to the prosecution, ie the evidence relating to the “controlled buys” organised by the police with Brown’s cooperation. This evidence lay at the heart of the prosecution. It was to come from Brown and from the police officers who corroborated his testimony.

46 The inadmissibility of that broad band of evidence, absent a valid Authority under the Act, was simply assumed.

47 It was not, I think, suggested that Brown’s evidence was itself obtained improperly or in contravention of law (cf s138(1)(a)). Rather, the submission was that Brown’s evidence had been obtained “in consequence of an impropriety or of a contravention of an Australian law” (cf s138(1)(b)) on the part of Detective Furlonger. This certainly was the way in which the s138 issue should have been addressed.

48 There was no exploration about the point (if any) at which the Ridgeway principles intersected with the facts of this case. Rather, it was generally assumed that the Crown evidence would be inadmissible by force of the invalidity of the Authority, which was itself assumed to be invalidated if a breach of the Code of Conduct were established. In deference to his Honour I emphasise that this was the way the matter was presented and argued at trial.

49 There appear to be several doubtful steps, if not fallacies, in this reasoning.

50 First, there is no clear analogy between the type of illegality involved in Ridgeway and the police-initiated conduct in the present case. In Ridgeway, importation of the prohibited drug was required to be proved, yet this illegal step had been performed solely by a law enforcement officer. The present case, by contrast, involved no more than proof of the appellant’s own unlawful conduct. It was the type of evidence regularly encountered in criminal trials without the necessity of being sanctioned pursuant to the Act. The appellant’s activities in supplying Brown were those of the “unwary criminal” and not those of the “unwary innocent” (cf Ridgeway at 37, 50, Salem (1997) 96 A Crim R 421 at 429-30), but (unlike Ridgeway) they were his own activities. The onus lay upon the appellant to establish that illegal or improper conduct produced the challenged evidence (R v Coulstock (1998) 99 A Crim R 143, R v Dalley (2002) 132 A Crim R 169).

51 But let it be assumed that Brown’s evidence was itself the product of illegal or improper conduct on his and/or the police’s part (cf Salem). Such an assumption may have been correct and it was certainly the way in which the matter was argued in the District Court and in this Court. However, the second issue needing to be addressed was identification of the impropriety or illegality that triggered the application of the qualified prohibition in s138(1). Such identification was vital so that the court could properly engage in the process contemplated by the section as a whole.

52 The argument in the District Court proceeded on the basis that the relevant triggering event was the contravention of the Code of Conduct which in turn invalidated the Authority. But the Act contains no provision non-compliance with which amounts to a relevant “impropriety or … contravention” arguably engaged by s138(1). The Act establishes a regime whereby the potential impact upon the admissibility of evidence of an irregularity or contravention arising elsewhere can be negated by establishing that the evidence was obtained in the course of an operation duly authorised in accordance with the Act’s detailed procedures (see esp ss13 and 16). If, as Coolahan DCJ held, the Deputy Commissioner’s Authority was invalid by reason of non-compliance with the Act then the shield of the Act was removed. This would bring s138 of the Evidence Act into play, but only if and to the extent that the substantive evidence sought to be adduced by the Crown was itself obtained improperly or illegally.

53 This is really another way of making the first point, but the particular matter here emphasised is the difficulty of applying the criteria in s138 without clearly and correctly identifying the impropriety or illegality tainting the admissibility of evidence in accordance with s138(1).

54 Some of the primary judge’s reasoning and some of the submissions in this Court elided the assumed impropriety or illegality of the transactions in which Brown purchased heroin from the appellant with the contested impropriety of Detective Furlonger’s conduct in failing to comply with the Code of Conduct under the Act.

55 A third problem lies within the four corners of the Act. It too was glossed over in the first judgment and barely addressed in this Court. Yet the failure to deal properly with it tends to undermine not only the conclusion in the first judgment but also the focus and conclusions in the second judgment.

56 In this Court, the appellant made it plain that he did not contend that Detective Furlonger’s contravention of cl 1 of the Code represented illegal conduct in the sense of ”contravention of an Australian law” within s138(1). His submission was that officer’s misconduct was an impropriety that operated to invalidate the Authority issued by the Deputy Commissioner. The argument was that Detective Furlonger’s failure to indicate that Brown was a heroin addict meant that the Authority issued by the Deputy Commissioner was itself invalid, in accordance with principles of administrative law.

57 This argument also involves large steps that I would not be prepared to take as presently advised, although it is unnecessary to reach a concluded position on the matter. In my view, it is highly debatable whether an applicant’s breach of the Code of Conduct would in itself spell invalidity for an Authority that subsequently issued. In the first place, there would appear to be a very large causation question which would need to be considered and which, in the present case, was barely explored. Secondly, nothing in the Act points to an applicant’s breach of the Code being in itself a basis for invalidating an Authority. There is no such express indication. Section 6(2) does not condition validity upon compliance with the Code. Section 6(3) (which sets out the matters of which the chief executive officer is to be satisfied) contains no reference to the Code. Thirdly, s13A (set out above) severely curtails the types of matters relevant to establishing the invalidity of an authority. Its precise scope need not be considered in this appeal, but certainly cannot be overlooked generally.

58 The appellant’s argument (if correct) suggests that any breach of the Code by an applicant would spell automatic invalidity for the Authority that is granted in response to it. This, to say the least, lies ill with the Act’s pains to condition an Authority upon the chief executive officer’s satisfaction about a limited range of matters (none of which refer to the Code), backing this up with a provision making the officer’s certificate conclusive evidence of that satisfaction (s27). Section 20(5) of the Act also suggests the possibility that the consequences of breach of the Code of Conduct may have been expressly addressed in the context of exposing the delinquent officer to disciplinary proceedings.

59 All of these matters indicate that the legislation does not express a purpose that any and every act done in breach of the Code by the applicant officer should spell the invalidity of an Authority (cf Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 389-91).

60 As indicated, the Crown accepted (both in the District Court and in this Court) that Judge Coolahan’s first judgment triggered the prohibition in s138 of the Evidence Act, subject to proper exercise of the judicial discretion conferred by that section. I am content in this appeal to proceed on this basis, while strongly doubting its correctness.

The challenges to the exercise of the discretion under s138

61 This brings me to the appellant’s challenges to the exercise of his Honour’s discretion to admit the evidence in accordance with the reasons in the second judgment. The appellant properly accepted that appellate review is constrained by the well-known principles in House v The King (1936) 55 CLR 499. See generally Salem and R v Rondo (2001) 126 A Crim R 562 for application of those principles in an appeal concerning the exercise of the s138 discretion.

62 It was submitted that there were five material errors in the second judgment. I shall address them in their proper context. It is first necessary to examine the steps in the reasoning that are unchallenged.

63 Judge Coolahan correctly recited the impact of s138 and proceeded to give particular consideration to those of the matters flagged in subsection (3) that were relevant to the facts and issues explored in the voir dire inquiry. It could not be suggested that his Honour erred in taking into account the very matters mentioned expressly in subsection (3). However, at times the appellant’s submissions appear to do so. This possibly explains why some of those submissions were barely pressed in this Court.

64 As to the probative value of the evidence sought to be led by the Crown (cf s138(3)(a)), the primary judge held that it was extremely high. This was obviously correct, since the evidence from Brown and the listening devices strapped to his body was not seriously said to have been affected by Brown’s drug dependency and was essential to establish the offence proscribed by s25A of the Drug Act, with its requirement of proof of three prohibited supplies within 30 days. The appellant does not and could not gainsay the application of par (a) as a factor favouring the exercise of the discretion in the Crown’s favour.

65 Virtually the same can be said about the importance of the evidence in the criminal proceeding (cf s138(3)(b)). Judge Coolahan stated that the importance was obvious given that the Crown conceded that without such evidence there was no Crown case. Once again this consideration supported the exercise of the discretion in favour of the Crown. Assuming that such evidence was itself improperly or illegally obtained because of some unanalysed contravention of the Ridgeway principles, then the prosecution case against the appellant simply fell to the ground if the evidence was excluded. And once again this part of his Honour’s reasoning in the second judgment is not challenged.

66 Turning to the nature of the relevant offence (cf s138(3)(c)), the judge observed that it was serious having regard to the penalty it attracts and the attitude of courts to it. This observation cuts a bit both ways in the discretionary calculus, but once again this part of the second judgment is unchallenged.

67 The first two challenges raised in this Court concern the manner in which his Honour dealt with the issues of the gravity of the impropriety or contravention (cf s138(3)(d)) and whether the impropriety or contravention was deliberate or reckless (cf s138(3)(e)). The judge said:

I am not satisfied that this was great. I take into account that it was Detective Furlonger’s first application under the Act. The application, even in the edited form tendered, is quite lengthy, and at best I am satisfied that his failure to inform the relevant party that the witness sought to be used in the controlled operation was a heroin addict was, in fact, reckless.
Further, I was impressed with the evidence of Senior Constables Rudder and Dominish. They were aware, particularly Senior Constable Dominish who was the handler of the informant and who had caused his registration, that he was a heroin addict or at least had been for some time. But notwithstanding that, based on his observations of the informant and of various checks and balances that he was able to do, he took the view that the informant was nonetheless a person who was reliable and he said that this was borne out during the course of the operation.

68 The appellant submitted that it was irrelevant and factually wrong for the judge to have taken into account whether the informant was reliable. I cannot accept this submission. Brown’s reliability and Detective Furlonger’s opinion about it were highly relevant given the requirement in s7(2) that the chief executive officer had to be satisfied as to Brown’s “appropriate skills to participate”, the issue raised as to the Code’s requirement of good faith on the part of the applicant, and the matters required to be addressed by s138(3)(c) and (d). It also affected the probative value of Brown’s evidence (cf s138(3)(a)).

69 I also reject the challenge to the finding that Brown’s testimony was reliable. This conclusion was well open especially given that Brown was under close police observation and listening device surveillance at all material times. The judge reached his views in the light of the cross-examination of the police witnesses.

70 Upon analysis, these first and second complaints amounted to no more than dissatisfaction as to the weight given by the primary judge in his concededly proper advertence to the statutory criteria in s138(3)(d) and (e). This is not the type of complaint permissible in accordance with House v The King principles. In any event, I see no factual error in his Honour’s analysis. In particular, the statement that Detective Furlonger’s silence was reckless “at best” was a very spongy springboard for the appellant to argue appealable error in the application of s138(3)(e).

71 For reasons given above there are additional problems for the appellant which do not have to be addressed in the final analysis. I simply observe that it is in this portion of the second judgment that Judge Coolahan seems to have elided consideration of Detective Furlonger’s “impropriety” as applicant for an Authority with the issue of the illegality or impropriety attending the controlled purchase transaction itself. In addition there is the problem of jumping from an applicant officer’s breach of the Code to the invalidity of the Authority issued by the Deputy Commissioner.

72 In further defence of Detective Furlonger and possible concerns he may have as to exposure to disciplinary proceedings I feel bound to observe that this portion of the second judgment falls short of a positive finding of breach of the Code. Carelessness is not want of good faith. To say that the judge was “at best … satisfied” that Detective Furlonger’s conduct was reckless is not a finding that it was reckless, a fortiori not a finding that it amounted to lack of good faith.

73 The judge passed over s138(3)(f) and (g) because they had no relevance to the facts of the case. Addressing par (h) (the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law), his Honour said that this was obviously a case where the evidence was always going to be difficult to obtain. He continued:

Argument has been advanced that as at 23 October last year, two days before the purported issue of the authority to conduct the controlled operation, police were in possession of information which could have ground a basis for a search warrant which may have revealed on the premises of the accused a quantity of heroin. However, material was presented to the Court during the course of argument which indicated that the police, whilst being aware in a general sense that from time to time the accused had heroin on his premises, were not aware as to where he kept that substance, and I am not convinced that that would have been a necessarily efficient way to go about the investigation of the accused for this alleged offence.

74 According to the appellant this passage betrays errors three and four. The third error was said to be that the judge should not have taken into account how hard it was for the police to gather evidence of a kind sufficient to convict. This submission is untenable in light of s138(3)(h). The fourth error is said to be the irrelevance of the second sentence in this passage. Once again, that submission flies in the teeth of s138(3)(h).

75 The fifth and final challenge went to the absence of reasoning in the following passage:

I adopt the arguments of the learned Crown Prosecutor, without going into them in detail, and in particular the comments of the Court of Criminal Appeal in the unreported decision of Salem . It seems to me that when one undertakes the balancing act required of weighing against each other the two competing requirements of public policy as set out by the High Court in Bunning v Cross , in this case the balance comes firmly down on the side of the Crown and I would allow the admission of the evidence.

76 This passage must be read in the light of the second judgment as a whole and remembering that one is examining ex tempore reasons for an evidentiary ruling in a trial. There was no defect in exposure of essential reasoning processes.

77 Upon analysis, the appellant’s attack on the second judgment amounted to no more than an invitation that this Court exercise the s138 discretion afresh. The invitation must be declined.

Application for leave to appeal against sentence

78 The appellant seeks leave to appeal against sentence on the basis that the sentences imposed were excessive.

79 The facts relevant to the s25A offence are set out above. They amply justified Judge Coolahan’s description, in his remarks on sentence, that the offender

was a person who was very much in the business of supplying heroin for financial reward. It is obvious that the offender had ready access to the drug and that his customers were not confined to this particular informant. There is no doubt that he was in the business of supplying heroin for money.

80 The facts relevant to the s51A matter were set out in a ”Facts Sheet”. In brief, the appellant arranged to meet a man for the purpose of supplying him with 7gm of heroin at a price of $2,000. The man turned up, but produced one $50 note wrapped around a wad of blank paper. An altercation took place in the course of which the appellant was stabbed a number of times. He was admitted to hospital. The police examined his motor vehicle and located 7.48gm of heroin wrapped in a plastic bag secreted in the roof lining of the vehicle.

81 This offence was a serious one and, as Coolahan DCJ remarked, it provided even further evidence that the appellant was in the business of supplying heroin for reward. It was also very significant that this transaction (on 25 September 2002) occurred after the appellant had been arrested in relation to the “Brown” transactions and while he was on bail awaiting committal or trial.

82 The learned sentencing judge adverted to the numerous decisions of this Court to the effect that anyone who trafficks in heroin to a significant degree should expect a lengthy full-time custodial sentence. The supply of heroin is not a “victimless crime”. The cost to the community is enormously high. Judge Coolahan further remarked:

There is no evidence to suggest that the offender himself is a user but rather all the evidence points to the conclusion that he is a mid-level dealer who makes profit from his enterprise … at the expense of the misery, despair and loss suffered by others.

83 His Honour addressed subjective matters. The appellant was 45 years old at the time of sentencing. He had what the judge described as a “criminal history [that] does not assist him”. It included a sentence in 1996 to a minimum term of five years imprisonment for the supply of a commercial quantity of amphetamine. The additional term of two years then imposed had only concluded less than two months prior to the commission of the offences involving Brown.

84 Coolahan DCJ concluded that it was quite clear that the appellant had learnt nothing from the previous sentences imposed upon him. The appellant did not himself give evidence in the sentencing proceedings.

85 Considerable reliance was placed upon psychiatric evidence. The appellant has difficulty communicating with people, especially following the abovementioned stabbing. The psychiatrist, Dr Wills, described symptoms of very poor attention and concentration. A psychiatrist, Dr Lambeth, thought that the appellant’s symptoms were consistent with post-traumatic stress disorder stemming from the stabbing incident. He also diagnosed a mild-moderate degree of depression accompanied with anxiety, at least some of which stemmed from concern about the inevitability of imprisonment following conviction for the offences with which this appeal is concerned.

86 I must say, with deference to the submission of counsel for the appellant, that I find no error in the sentencing judge having placed little weight upon the symptoms stemming from the stabbing incident. It cannot be said that they contributed in any way to the offences for which the appellant stood to be sentenced. It is unnecessary to go further, beyond observing that the risk of injury through assault would be very foreseeable in relation to a person who trafficks in heroin by supplying it regularly to users.

87 The sentencing judge allowed a discount in the vicinity of 20% for the “utilitarian value” of the plea in the s51A matter.

88 Judge Coolahan summed up his sentencing analysis in the following terms:

It is quite clear that this offender has a complete disregard for the law and … is content to profit from the misery and suffering of others. He could not be described even in terms of a low-level street dealer or a user/dealer but … the reality is he was in the business, in my view, of a middle-level dealer supplying to anyone who was ready to purchase heroin from him, even to the extent of supplying street dealers.

89 The appellant submits that the sentence in relation to the s25A offence was excessive in all of the circumstances having regard to the weight of the prohibited substance in the three controlled purchases, the purity of the prohibited substance and the fact that the period of imprisonment will be spent in protected custody.

90 In my view, the size of the individual transactions involving Brown and the purity of the heroin involved are of little assistance to the appellant. The gravamen of the s25A offence lies in the repeated acts of supplying the prohibited drug within a closed period. In the present case, Brown’s three transactions satisfied the statutory criteria and well justified the descriptions as to the appellant’s business that have already been set out from the remarks on sentence.

91 The issue of protected custody was addressed in the following terms in the remarks on sentence:

There is the issue of the manner in which the offender is presently serving his period of incarceration. It has been said, although there is no specific evidence of it, that he is serving his current incarceration in protection and that it is likely that he will continue to serve the sentences that are about to be imposed upon him in protection. As I say, there was no specific evidence about this but I raised it with the learned Crown Prosecutor on the last occasion and the Crown was content for me to proceed on the basis that the offender is in protection and is likely to stay in protection.
In my view, this is a factor to be taken into account both on sentence and in respect of the ratio between the non-parole period and the parole period but I do not think that these matters, including the injuries suffered by the offender in the attack upon him, should result in any significant alteration of otherwise appropriate sentences.

92 This passage reveals no error. The particular findings are not challenged. And the general reasoning shows that appropriate regard was paid to the protected custody issue, having regard to the way the issue was raised in the court below.

93 In my view no error has been demonstrated in the fairly-broad brush attack on the sentences imposed and the judge’s reasons. The appellant cannot and does not point to any particular error or the failure to advert to relevant circumstances. I would go further and indicate my agreement with the reasons and conclusion of the sentencing judge.

94 Accordingly, I would dismiss the appeal against conviction. As to sentence I would grant leave to appeal but dismiss the appeal.

95 SULLY J: I agree with Mason P.

96 SPERLING J: I agree with Mason P.

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Last Modified: 10/07/2004