R v M, I - [2018] SASC 24

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v M, I & ORS
[2018] SASC 24
Reasons for Rulings of The Honourable Justice Lovell
6 March 2018
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
PUBLIC SERVICE - DUTIES AND OFFENCES IN RELATION TO OFFICE - OFFENCES - GENERALLY
The accused are serving police officers charged with a number of counts of Abuse of Public Office. South Australian Police and the Independent Commissioner Against Corruption conducted a joint investigation. Evidence was obtained by use of a covert operation authorised under the Criminal Investigation (Covert Operations) Act 2009 (SA).
Whether the joint investigation complied with sections 23, 24 and 34 of the Independent Commissioner Against Corruption Act 2009 (SA) - meaning of expression from "time to time" considered - whether the covert operations were approved and therefore authorised in accordance with s 4 of the CICO Act - whether authorisation was invalid - whether s 55 of the CICO Act applied - whether investigation breached the Local Police Policy - whether the evidence obtained from the covert operations should be excluded in the exercise of the court’s discretion - factors taken into account when exercising the discretion considered.
Held, dismissing the application:
The approvals authorising the covert operations were invalid. Although the discretion to exclude the evidence was enlivened, in all of the circumstances the application to exclude the evidence should be dismissed.
Criminal Investigation (Covert Operations) Act 2009 (SA) s 3, s 4, s 5; Independent Commissioner Against Corruption Act 2012 (SA) s 23, s 24, s 34; Summary Offences Act 1953 (SA) s 75, referred to.
Police v Dunstall (2015) 256 CLR 403; R v Lobban (2000) 77 SASR 24, applied.
Bunning v Cross (1978) 141 CLR 54; Ridgeway v The Queen (1995) 184 CLR 19; R v Swaffield (1998) 192 CLR 159; French v Scarman (1979) 20 SASR 333; R v Rockford (2015) 122 SASR 391, discussed.

R v M, I & ORS
[2018] SASC 24
Criminal: Application
LOVELL J.
Overview

X1 is a police officer and was a member of the Sturt Operation Mantle team (the Mantle team). The Mantle team was comprised of police officers whose main task was to investigate drug crimes in the Sturt area. A common task was for the team, or several members of the team, to attend alleged drug crime scenes. On two occasions, 2 January 2014 at Glenelg South and 18 February 2014 at Aberfoyle Park, X1, as part of her duties, attended drug crime scenes and witnessed other Mantle team officers mis-handling crime scene exhibits. Further she alleged she had overheard comments that suggested items were being mis‑handled and/or stolen. X1 reported her observations to a superior officer who contacted the Anti-Corruption Branch (ACB) of the South Australian Police Department. The information was also passed on to the office of the Independent Commissioner Against Corruption (ICAC). ICAC and the ACB then conducted a joint investigation into the allegations code-named “Operation Bandicoot”.
Part of the investigation included conducting Targeted Integrity Tests (covert operations). Approval was sought, pursuant to the Criminal Investigation (Covert Operations) Act 2009 (SA) (CICO Act) to conduct the covert operations. Evidence obtained from the Targeted Integrity Tests conducted by the joint investigation team led to criminal charges being laid against Sergeant IM (IM), Senior Constable MR (MR), Senior Constable JC (JC), Senior Constable BR (BR), Senior Constable KF (KF) and Senior Constable MH (MH).
Counsel for KF, Mr Abbott QC, filed a Rule 49 Application seeking orders excluding the evidence on various grounds. All other accused adopted Mr Abbott’s submissions and sought the exclusion of the evidence. They all made additional submissions relating to their specific circumstances.
During the course of these reasons I will adopt the course of dealing with the submissions of Mr Abbott QC as being submissions adopted by all accused although tailored to KF’s circumstances. Where necessary I will deal with the additional submissions made by each accused.
During the course of these reasons I will identify the rank of the various officers (all accused and prosecution witnesses). I will then refer to them only by their surname. Such a course is expedient and I intend no disrespect to those officers in adopting it.
The Rule 49 Application
In general terms, all accused sought:
1.A declaration that the investigation conducted by the ACB after 31 August 2014 was unlawful.
2.In the alternative to 1, a declaration that the joint investigation of ICAC and the ACB for the purposes of s 34 of the Independent Commissioner Against Corruption Act 2012 (SA) (ICAC Act) was, from 4 February 2014, unlawful.
3.A declaration that the Approvals for a covert operation (and any extensions) and a Targeted Integrity Test(s) made pursuant to s 4 of the CICO Act were invalid or alternatively unlawful.
4.That as a consequence of the declarations all the evidence obtained from the Targeted Integrity Test(s) and any subsequent evidence be excluded.
Background
X1 provided information about two separate crime scenes that she attended.
Glenelg South
X1 attended the crime scene with IM and MR along with Senior Constable S (S), Senior Constable W (W) and Senior Constable G (G). The information provided by X1 in relation to the Glenelg South residence was as follows:
1.The premises were set up similar to that of an Albanian syndicate grow house.
2.While assisting in the dismantling process, X1 heard from another room words to the effect of “that would look good in the office”. X1 looked into the room and saw IM and S. S was disconnecting the cords to a television.
3.X1 heard MR say “that’s a decent fan, better get that out before Crime Scene gets here”. X1 later saw the fan outside. S carried a bag of mulch/fertiliser from the premises. This bag and the television, disconnected by S, were seen by X1 in the police vehicle.
4.The owner of the premises, believed to be an ex-solicitor, arrived and observed the items in the police vehicle. After the owner’s arrival MR returned the pedestal fan to the premises.
5.W later said to X1, referring to the attendance at Glenelg South, “normally it’s only a pair of secateurs”.
6.On 14 January 2014 X1 said that whilst she was in the middle room at office of the Mantle team, the television started to “blink”. S said, “Gee, we could really do with an Albanian drug action about now”.
7.The fan was not taken from the premises. X1, the next day, saw that the television had been entered into the Police Property Management System (PPMS).
Aberfoyle Park
X1 attended the crime scene with BR, MR, G and W. The house had clearly been used for the growing of a cannabis crop.
Whilst the grow house was being dismantled, W asked for something to break down a carbon filter. He said, “Has anyone got anything to break this down?” and then, “Oh nah, that’s alright, I actually need a carbon filter.” The carbon filter was placed in the Mantle trailer.
Later, investigations conducted by the ACB produced CCTV footage showing W unloading a carbon filter from the Mantle trailer at 1.49 pm after the Mantle officers returned from Aberfoyle Park. Property seized from Aberfoyle Park was booked in by BR to the Sturt PPMS but the carbon filter was not booked in.
This became relevant to a crime scene that W had attended months earlier. On 22 July 2013, Sturt Mantle officers including W had attended premises at 68 Albert Street, Goodwood and a carbon filter seized and entered on the Sturt PPMS system. It was said to have been delivered to the Ottoway police compound. The carbon filter was never received at Ottoway.
On 6 February 2014 Senior Constable T (T), from the Ottoway police compound, sent an email to W about the carbon filter having been booked in but not delivered.
At 2.05 pm on 18 February 2014, after the Sturt Mantle team officers returned from Aberfoyle Park, W sent an email to Senior Constable T advising that he had “just come back from leave and had attended down in the wash bay/holding area for hydro items and had located the carbon filter without a property label attached”. The carbon filter mentioned by W was that seized from Aberfoyle Park but not booked in.
History of applications and approvals to conduct a covert operation
The information supplied by X1, supported by further enquiries, formed the basis for an application to conduct a covert investigation of the Sturt Mantle team. Detective Brevet Sergeant Dalton (Dalton), the lead investigator at the ACB, compiled the application; it was dated 14 April 2014.
On the same date Dalton compiled an application for the approval of a Targeted Integrity Test; the application stated that such a test was warranted and recommended.
Section 4 of the CICO Act governed the approval process for a covert operation. An application for the approval of a covert operation had to be made to a “senior police officer”. “Senior police officer” is defined in s 4 as a police officer of or above the rank of Superintendent. At the time, the head of the ACB was Superintendent Baulderstone (Baulderstone). The Approval documents compiled by Dalton were sent to Baulderstone for her to consider whether to approve the covert operation and the Targeted Integrity Test.
On 24 April 2014, acting pursuant to s 4 of the CICO Act, Baulderstone approved the application to conduct an undercover operation. On the same date, acting under the Anti-Corruption Branch Integrity Test Policy (the Local Policy), Baulderstone approved the proposed integrity test.
On 17 June 2014 Dalton submitted an application to “renew” a covert investigation and on 19 June 2014 Baulderstone approved an “extension” to an undercover operation.
On 8 September 2014 Dalton submitted a further application to “renew” the covert operation and on 12 September 2014 Baulderstone approved the “extension” of the undercover operation.
On 23 September 2014, Dalton submitted an application for a covert investigation. This was approved, by Baulderstone, on 30 September 2014.
On 9 October 2014, Dalton made an addendum application for a covert investigation which was approved by Baulderstone on 9 October 2014.
During the course of these reasons, and for reasons of convenience, I discuss the Applications and Approvals in general terms. I have not overlooked the fact that JC was not a member of the Mantle team at the time of the first Approval. All Applications and Approvals were generally based on the same information with minor changes relating to the change in membership of the Mantle team. JC is an example of such a change. I have not overlooked the “adding” of Dalton’s name to the authorised participants list in the September Approval.
The Targeted Integrity Tests
The first Targeted Integrity Test was conducted at Mitchell Park on 15 September 2014. A house had been rented and set up to resemble a grow house. Items consistent with those used in a grow house had been placed in the house by ACB officers. These items had been marked so that they could be identified later. Dalton made an anonymous call to Crime Stoppers and officers BR, MR and KF attended the premises. These three officers seized property from the premises and some of the items were later booked into the PPMS. Other items seized were not booked in and these are generally the subject of the charges. Not booked in were a Bosch cordless screwdriver set, an Arrow staple gun and staples, gaffer tape, an AEG cordless drill set, a Stanley spanner set, crescent clamps, a Leatherman tool, an Ozito cordless drill set, an Eclipse wrench, and two Uniden radios.
Included in the items placed at Mitchell Park were 12 transformers. When seizing property from the house the officers mistakenly left one of the transformers behind.
Upon returning to the Sturt Police Station, officers BR, MR and KF unloaded the hydroponic equipment seized from Mitchell Park and the 11 transformers were left in the station compound. BR went and booked 12 transformers into the PPMS using his identification number. When BR and KF returned to the station compound to put property labels on the transformers, BR took a transformer from a separate group of unrelated exhibits, making the group of transformers up to 12. A property label was placed on this transformer indicating it had been taken from Mitchell Park.
The second Targeted Integrity Test was conducted on 9 October 2014. This took place in a storage unit at Kennard’s storage facility on Goodwood Road. The unit was set up to look like a site for packaging cannabis. Again, Dalton made an “anonymous” call to Crime Stoppers and on this occasion officers MH, JC, BR and MR attended and later IM. The officers seized property including items not later booked into the PPMS.
Items seized but not booked into the PPMS included perfume, a multi-tool, two sets of wire snips and two bottles of Johnnie Walker Red Label whisky.
Evidence on the Rule 49 Application
On the application the prosecution called four witnesses: Dalton, Inspector Dinning (Dinning), Baulderstone and Mr Grant Moyle (Moyle) who at the relevant time was the Director of Operations of ICAC. Before turning to deal with the submissions, I will make brief remarks about the witnesses who gave evidence.
Dalton was the lead investigator for the ACB and had the day to day running of the matter. Dalton was the officer who prepared the approvals for the covert operation and the Targeted Integrity Tests as well as doing a large proportion of the investigative work in the matter. Dalton was an impressive witness. I found her to be an honest, credible and reliable witness. Whilst her investigation was not free of errors, as one would expect in an investigation of this nature, Dalton was always quick to acknowledge her errors. I accept her evidence.
Dinning was an honest, reliable witness and I accept her evidence.
Moyle was an honest and reliable witness and I generally accept his evidence. His recollection as to the constitution of the Mantle team during the time of the investigation was incorrect but he was not invited to refresh his memory from various contemporaneous documents before he gave that evidence. The evidence establishes that he was kept informed of the change in the team and for the reasons that follow he jointly authorised the approvals for the covert operations and kept the Commissioner informed of the progress of the matter at all times.
Baulderstone’s evidence was strongly criticised by counsel but I found her to be generally an honest and reliable witness. There was much criticism of her approach to who she suspected on reasonable grounds to be part of the “culture of dishonesty” within the Mantle team. For the reasons that follow I consider her approach, apart from her suspicion in relation to KF and JC, to have been correct. Much of the criticism then is unwarranted.
On occasions there were inconsistencies in her evidence which cause me to have some doubt about her reliability. I refer particularly to the question of whether Moyle jointly authorised the Approvals as required by the Local Policy. Documents from ICAC’s possession were unfortunately produced very late on the voir dire and after Baulderstone had completed her evidence. Baulderstone appeared to be under the misapprehension that she had, in breach of the Local Police Policy, not had Moyle authorise the Approvals. This was an incorrect assumption as I discuss later in these reasons. Her evidence on the point was confusing and finally she was unable to give any reasonable explanation for her failure to get Moyle to jointly authorise the Approvals. Her confusion is explained by the fact that Moyle did, in fact, jointly authorise the Approvals.
Baulderstone was also criticised for her decision to proceed with the Tests despite the change in membership of the Mantle team over time. Further she was criticised for not rearranging the Tests to exclude certain members. I discuss those matters later in these reasons. In my view much of the criticism was unwarranted. Baulderstone along with the other investigators had a number of operational decisions to make. They decided to not do anything that would create any suspicion that a covert operation was underway. It was decided to allow matters within the Mantle team to continue “normally”. While I accept that other pathways may have been taken, and I take that into account when considering the exercise of the discretions, in the overall context of this case these were operational decisions which were not unreasonable.
I have considered the evidence of Baulderstone carefully. I generally accept her evidence as honest and reliable.
I find that all witnesses attempted to comply with the CICO Act. In relation to all of the witnesses called by the prosecution I find that they acted in good faith. For the reasons that follow Baulderstone failed to comply with s 4 of the CICO Act and the Local Policy.
I note that, having heard the evidence from Moyle, Mr Abbott QC for KF, correctly in my view, withdrew a number of complaints relating to the involvement of ICAC in the investigation. Mr Abbot QC withdrew paragraphs 39 to 49 of his written submissions dated 27 September 2017. I agree with Mr Abbott’s submission that it was unfortunate that Moyle was not called earlier in the proceedings and that documents in the possession of ICAC were not produced until rather late in the proceedings.
Given the way in which the application was conducted I have assumed that all accused have withdrawn their submissions on those issues.
Application Grounds
Expiry of Section 34 Notice
On 10 January 2015 Inspection Ben Spencer made a mandatory report to the Office of Public Integrity concerning the suspected activities of the then current members of the Sturt Mantle team. Section 23 of the ICAC Act required the matter to be assessed and a determination made as to whether or not action should be taken to refer the matter or to make recommendations to the Commissioner. As the matter was assessed as raising a potential issue of corruption in public administration pursuant to s 24(1) of the ICAC Act the matter had to be either investigated by the Commissioner or referred to South Australia Police or other law enforcement agency.
On 23 January 2014 or shortly thereafter, the Commissioner made a determination pursuant to s 27 of the ICAC Act that he would investigate the matter.
Section 34 of the ICAC Act entitles the Commissioner to require a South Australian law enforcement agency, by written notice, to refrain from taking action in respect of a particular matter being investigated by the Commissioner or to conduct a joint investigation with the Commissioner in respect of that matter.
Section 34 states:
Limiting action by other agencies and authorities
(1)The Commissioner may, by written notice, require a South Australian law enforcement agency, inquiry agency or public authority to refrain from taking action, in respect of a particular matter being investigated by the Commissioner under this Act or to conduct a joint investigation with the Commissioner in respect of a particular matter (and the agency or authority must comply with the requirement even if the agency or authority is otherwise required or authorised to take action under another Act).
(2)The notice must specify the period for which it is to apply and set out details of the action that is not to be taken or the requirements governing any joint investigation.
(3)The Commissioner must consider any comments of the agency or authority with respect to the terms of the notice.

There is no dispute that the Commissioner decided to conduct a joint investigation with the South Australian Police. Under cover of a letter from the Commissioner to the Commissioner of Police dated 4 February 2014 the Commissioner enclosed the relevant s 34 Notice. The Commissioner stated that he would head the joint investigation. The s 34 Notice was to expire on 31 August 2014. No further notice was given.
Mr Abbott QC on behalf of KF submitted that as the s 34 Notice had expired on 31 August 2014, the Targeted Integrity Tests conducted after that date, both of them, were conducted without lawful authority. It was submitted that everything done by the ACB after 31 August 2014, purportedly in furtherance of a joint investigation with the Commissioner, was in contravention of the ICAC Act and therefore the evidence obtained via a Targeted Integrity Test and the search of KF’s house and vehicle on 13 October 2014 was unlawful.
I reject the submissions of KF in this regard. The interpretation urged by KF suggests that s 34 of the ICAC Act in some way regulates the power of the police to investigate. It does not do that. Sections 23 and 24 of the ICAC Act, in context, simply ensure that where the matter is assessed as raising a potential issue of corruption in public administration that somebody investigates the matter. It could be the Commissioner, the South Australian Police or another law enforcement agency. Section 34 confers a discretion on the Commissioner whereby he or she can authorise a joint investigation with for, example, the police.
Section 34 also confers a discretion on the Commissioner to direct the police to refrain from “taking action”. The Commissioner in this case did not require the South Australian Police to refrain from taking action. The action was simply directed to be a joint action. The expiration of the time period specified in the s 34 Notice did not circumscribe the power of the police to continue with their investigations.
Further, nothing in the ICAC Act prohibits the Commissioner from conducting an investigation at the same time as, for example, the police. Section 24(6) envisages concurrent investigations.
The prosecution sought to draw support for their interpretation from s 56A of the ICAC Act. I do not accept that aspect of the prosecution submissions. While it does not affect my ultimate conclusion on this point I accept the submissions of BR about the effect of s 56A. Section 56A is not concerned with the ability of the ACB to conduct an investigation whilst ICAC is conducting its own investigation.
I accept the submission of the prosecution that there is no rationale for ss 24 and 32 to be interpreted as depriving “bodies which have statutory responsibilities to exercise powers conferred by Parliament in the public interest” from exercising those powers. The police had the power to investigate both during the joint investigation and after the s 34 Notice expired. The failure to serve another Notice pursuant to s 34 did not render any of the acts of the police after the date in August 2014 unlawful. Nor did it make further investigations undertaken by the Commissioner unlawful.
I accept that Dalton considered that even after the expiration of the s 34 Notice the joint investigation with the Commissioner continued. Baulderstone also acted on the same basis. Their belief cannot affect the legality of the situation after 31 August 2014. There was no notice making it a joint investigation. Accordingly, the police conducted their own investigation. There was nothing unlawful about their investigation due to the absence of a further s 34 Notice.
Did the 4^th February Notice comply with s 34(2) of the Act?
Mr Abbott QC submitted that, in any event, the February Notice of the Commissioner did not comply with the Act as it failed to set out any requirements governing the joint investigation.
The s 34 Notice contained a commencement date, an anticipated end date and specified that the Commissioner would head the joint investigation. It was submitted that the failure to “specify” matters further made the Notice invalid “on its face”.
I reject that submission.
The Notice specified the period “for which it was to apply”. Further it specified that the Commissioner was to head the joint investigation. Clearly that was a detail of what was to be a joint investigation. In my view that was sufficient compliance with s 34. The fact that further details may have been included does not affect the validity of the Notice.
I also accept the prosecution submission that even if there was a technical defect in the Notice, such a defect would not lead to invalidity of the Notice. I deal with this topic, and the legal principles involved, in more detail when discussing issues arising under s 4 of the CICO Act.
Could the “matter” the subject of the investigation include KF?
This argument only applies to those accused who were not members of the Mantle team at the time of the original report by X1. They were KF, MH and JC.
It was common ground that the information of X1 was reported by Inspector Spencer to the Office of Public Integrity. It was this information that became the subject matter of the joint investigation of ICAC and the ACB.
The information was dealt with under ss 23 and 24 of the ICAC Act which relevantly state:
23—Assessment
(1)On receipt by the Office of a complaint or report, the matter must be assessed as to whether—
(a)     it raises a potential issue of corruption in public administration that could be the subject of a prosecution; …
and a determination made as to whether or not action should be taken to refer the matter or to make recommendations to the Commissioner.
…
24—Action that may be taken
(1)If a matter is assessed as raising a potential issue of corruption in public administration that could be the subject of a prosecution, the matter must be—
(a)     investigated by the Commissioner; or
(b)     referred to South Australia Police or other law enforcement agency.
Mr Abbott QC argued that the “matter” reported to the Office of Public Integrity and which became the subject matter of the joint ICAC/ACB investigation was confined to those members of the Sturt Mantle team referred to in the accounts of X1. He argued that KF could never properly be the subject of the joint investigation as she was not a member of the Mantle team at the time and was not therefore the subject of the Commissioner’s s 24 determination.
For the reasons that follow I reject the submissions of KF.
The starting point in ascertaining the meaning of a statutory provision is the text of the statute while having regard to its context and purpose at that time.[1] As Gaegler J stated in SZTAL v Minister for Immigration and Border Protection:[2]
The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility “if, and in so far as, it assists in fixing the meaning of the statutory text”.
[1] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384.
[2] (2017) 91 ALJR 936, 944 [37].
There is no definition of “matter” in the ICAC Act. “Matter” must be given its current meaning [3] and regard must be had to the context in which it appears in the legislation.[4] “Complaint” and “report” are also not defined in the Act.
[3] Acts Interpretation Act 1915 (SA), s 21.
[4] Lend Lease Real Estate Investments Ltd v GPT RE Ltd [2006] NSWCA 207.
“Matter” as defined in the Oxford English Dictionary is a word capable of a number of meanings depending on context. For current purposes it may be defined as a “subject or situation under consideration”. Any “matter” must arise from the “complaint or report” initially made pursuant to s 23. “Complaint” may be defined as “a statement that something is unsatisfactory or unacceptable”.[5] “Report” is a word capable of numerous meanings depending on context. For current purposes it may be defined as “a spoken or written account of something one has observed, heard, done or investigated; an outline”.[6]
[5] Oxford English Dictionary.
[6] Ibid.
It does not matter whether the information supplied by X1 is a complaint or a report. However it is categorised the “complaint or report” informed the basis of the “matter”. The “matter” was assessed as “raising a potential issue of corruption in public administration that could be the subject of a prosecution” and therefore the Commissioner was required to investigate it.[7]
[7] ICAC Act, s 24.
Therefore the “matter” had to be investigated. Clearly a matter may involve unknown individuals and/or unknown circumstances at the time the complaint or report was made. The “matter” must be investigated. At the time of the assessment of a “matter”, the information will necessarily be incomplete. The ICAC Act itself recognises the embryonic nature of the complaint or report as it requires an assessment of the “matter” to see whether it raises the “potential issue of corruption in public administration”.
Given that the “matter” must be the subject of investigation, including the possible use of the wide powers contained within ss 29, 29A, 30 and 31 of the ICAC Act, Parliament must have considered that other facts and/or suspects may be uncovered during the course of the investigation. “Matter” should not be interpreted so narrowly such that if the investigation uncovers other suspects relevant to the investigation, they would have to be the subject of another complaint or report pursuant to s 23. It is possible for there to be a “matter” to be investigated without there being, initially at least, any known suspect. In my view matters that arise from the investigation would be included in the definition of “matter”. A “matter” is not, at the time it is assessed, fixed in time as to persons who may be subject to investigation.
As submitted by the prosecution, it is not apparent why Parliament would have intended, in the context of the provisions directed at ensuring that ICAC is required to investigate, that the scope of the “matter” be so confined. I reject the submissions of KF.
It follows that I reject the same argument on behalf of MH and JC.
Section 4 Approval pursuant to the CICO Act
Before turning to consider the Approvals it is important to understand the context in which Baulderstone and other officers made various decisions.
The information the ACB received originated from a then serving member of the Mantle team, X1. The information came from a person operating within the team itself, not from, for example, an anonymous tip-off. X1 was concerned enough about what had happened to report the matter. Obviously the concern of X1 is not a matter that Baulderstone could have taken into account, but the source of the information was not unimportant.
There were comments overheard by and made directly to X1 during the raid by various officers of the Mantle team of the Glenelg South premises which raised concerns (to use a neutral expression) about the whole Mantle team. I will refer to only some of the information.
X1 alleged that she heard from another room words to the effect of “that would look good in the office”. X1 looked into the room and saw IM and S. S was disconnecting the cords to a television.
X1 heard MR say “that’s a decent fan, better get that out before Crime Scene gets here”. X1 later saw the fan outside. S carried a bag of mulch/fertiliser from the premises. This bag and the television, disconnected by S, were seen by X1 in the police vehicle.
The owner of the premises, believed to be an ex-solicitor, arrived and observed the items in the police vehicle. After the owner’s arrival MR returned the pedestal fan to the premises.
Constable W, later said to X1, referring to the attendance at Glenelg South, “normally it’s only a pair of secateurs”.
It cannot be overlooked that the owner of the premises arrived at the scene before the police had finished their duties. I have not overlooked that the fan was returned. Given the comments heard by, and said to, X1 and reported to ACB it is clear that an investigation was required. For the ACB not to have conducted an investigation, upon receipt of that information, would be unthinkable.
It is also clear that on this information, along with the other matters reported to the ACB, there was insufficient evidence on which to arrest any member of the Mantle team. Baulderstone and Dalton, when giving evidence, accepted that position. The fact that they accepted that position was unsurprising as they considered at that time further investigation was required. That decision was entirely appropriate. Meetings were held at ACB where discussion occurred as to what further investigations could be undertaken. It was certainly a reasonable decision (unrelated to s 4) by the ACB to consider techniques available given that there was at least some suspicion that the whole Mantle team may be involved.
Dalton compiled an Investigation Plan for “Operation Bandicoot”. This plan was approved on 12 February 2014 by both Dinning and Baulderstone. The plan discussed the use of a wide range of investigative tools including telephone intercepts, listening devices, human sources and whistleblowers, various banking and other records, physical surveillance and an undercover operation including Targeted Integrity Tests. In the event a number of those investigative tools were utilised including Targeted Integrity Tests.
Early in the investigation consideration was given to conducting a covert operation, namely a Targeted Integrity Test(s) in addition to other techniques. After preliminary enquiries were made and other options considered the decision was made to conduct the Tests in conjunction with other investigations.
In conducting the Tests it was accepted that some conduct of those involved would be unlawful. Approval was needed pursuant to s 4 of the CICO Act so that authorised participants in the operation would attract the protection of s 5 of the CICO Act. Section 5 states that an authorised participant in approved undercover operations incurs no criminal liability by taking part in undercover operations in accordance with the terms of the approval. Authorisation pursuant to s 4 was an important step in the investigation.
It must be remembered that the decision to conduct Targeted Integrity Tests was part of the investigative stage of the matter. It is in that context that the conduct of Baulderstone (and others) must be considered. Contrary to the submission of MR (dealt with later in these reasons) there is a significantly material difference in the test for granting an approval under s 4 of the CICO Act and having reasonable cause to suspect for an arrest pursuant to s 75 of the Summary Offences Act 1953 (SA). A manifest purpose of the CICO Act is to conduct a covert operation as an investigative tool to obtain evidence to effect an arrest.
On 14 April 2014, Dalton submitted two applications to Baulderstone. The first was an Application to Conduct a Covert Operation. This Application was made seeking approval pursuant to s 4 of the CICO Act. The Application stated that the intention of the investigation team was to conduct a Targeted Integrity Test(s). The Application contained information that Baulderstone needed when considering whether to grant the Approval pursuant to s 4 of the CICO Act.
Dalton stated in the Application:
It is alleged members of Sturt Op Mantle team, whilst in the execution of their duties, during premises searches, dishonestly take property when opportunity exists. The candidness of their conversations at the time of taking property suggests there is an accepted practice within this team of stealing property.
A targeted integrity test is warranted and recommended in the circumstances.
The second was an Application to conduct a Targeted Integrity Test. This Application was made to comply with ACB internal policy. It was clearly dependent upon the first application being granted. It was an application that dealt predominately with matters such as cost and the desirability of the test.
Baulderstone approved both applications on 24 April 2014.
All accused focussed on the first Application and its subsequent Approval. Criticism was also made of the subsequent documents seeking extensions and/or renewals of the covert operation.
IM, MR and BR were members of the Mantle team at the time X1 gave the information. MH had been a member of the Mantle team but was not a member at the time of X1’s allegations. MH joined the Mantle team on 17 January 2013 but left on 5 December 2013. She rejoined on 6 February 2014.
KF was not a member of the Mantle team at the time of X1’s allegations; she joined the team on 20 March 2014. She was a member at the time of the initial application JC did not join the Mantle team until May 2014. He was not a member of the team as at the time the first Application was made.
S, G and W were members of the Mantle team at the time X1 reported her information. They left the Mantle team before the Targeted Integrity Tests were conducted. D, an officer who joined the Mantle team in March 2014 and remained a member, did not attend either Targeted Integrity Test.
The accused submitted that Baulderstone’s Approval to conduct a covert operation was flawed from the outset due to her approach to the requirements of s 4(2)(a). For the Approval to be granted Baulderstone had to suspect on reasonable grounds, that persons (whose identity may—but need not—be known to the officer) have engaged, are engaging or are about to engage in serious criminal behavior of the kind to which the proposed undercover operations relate.
Baulderstone gave evidence that she considered that the information provided by X1 was sufficient for her to have the appropriate suspicion in relation to those officers who were members of the Mantle team as at February 2014 (the date of the latest information provided by X1) even though some of them had not attended the operations conducted in January and February 2014.
Baulderstone also gave evidence that even if an officer joined the Mantle team later than February, simply being a member of the Mantle team after that date, was sufficient for her to have the appropriate suspicion. Baulderstone stated that no consideration was given to a more specific Targeted Integrity Test. She considered the suspicion was on the whole team.
For varying reasons all accused submitted that it was not open for Baulderstone to have such a suspicion in relation to each of them individually. Further they submitted that Baulderstone targeted “Mantle” rather than individuals. The prosecution submitted that the approach of Baulderstone was correct; the suspicion only had to be held generally in relation to persons, not any specific person.
It is necessary to consider s 4 of the CICO Act which states:
(1)A senior police officer may approve undercover operations for the purpose of gathering evidence of serious criminal behaviour.
(1a)An investigator under the Independent Commissioner Against Corruption Act 2012 may apply to the Independent Commissioner Against Corruption to approve undercover operations for the purpose of an investigation into corruption in public administration under that Act where the suspected corruption involves, or may involve, serious criminal behaviour.
(2)An approval may not be given unless the senior police officer or the Independent Commissioner Against Corruption (as the case may be)—
(a)     suspects, on reasonable grounds, that persons (whose identity may—but need not—be known to the officer) have engaged, are engaging or are about to engage in serious criminal behaviour of the kind to which the proposed undercover operations relate; and
(b)     is satisfied on reasonable grounds that the ambit of the proposed undercover operations is not more extensive than could reasonably be justified in view of the nature and extent of the suspected serious criminal behaviour; and
(c)     is satisfied on reasonable grounds that the means are proportionate to the end; that is, that the proposed undercover operations are justified by the social harm of the serious criminal behaviour against which they are directed; and
(d)     is satisfied on reasonable grounds that the undercover operations are properly designed to to provide persons who have engaged, or are engaging or about to engage, in serious criminal behaviour an   an opportunity—
(i)to manifest that behaviour; or
(ii)to provide other evidence of that behaviour,
without undue risk that persons without a predisposition to serious criminal behaviour will be encouraged into serious criminal behaviour that they would otherwise have avoided.
(3)Before giving approval, the senior police officer or the Independent Commissioner Against Corruption (as the case may be) must consider whether approval for similar operations has previously been sought, and, if sought and refused, the reasons for that refusal.
(4)The approval must—
(a)     be in writing; and
(b)     be signed by the person giving the approval; and
(c)     specify—
(i)the date and time of the signing, and the time from which the approval takes effect (which may be contemporaneous with or later than the time of signing but cannot be earlier); and
(ii)the persons who are authorised to participate in the operations; and
(iii)the nature of the conduct in which the participants are authorised to engage; and
(iv)a period (not exceeding 3 months) for which the approval is given.
(5)A senior police officer or the Independent Commissioner Against Corruption (as the case may be) may renew, from time to time, an approval for 1 or more further periods.
(6)A senior police officer or the Independent Commissioner Against Corruption (as the case may be) must, within 14 days after giving or renewing an approval, cause a copy of the instrument of approval or renewal to be given to the Attorney-General.
(7)In this section—
“senior police officer” means a police officer of or above the rank of Superintendent.

Section 4(1) of the CICO Act confers on the senior police officer the power to authorise a particular undercover operation. Sections 4(2)(a)-(d) set out the matters the senior police officer has to be satisfied of or suspect on reasonable grounds before granting the Approval. The purpose of the Approval is to be found in s 5 of the CICO Act. It confers on authorised participants in the covert operation, who act within the terms of the approval, the benefit of not attracting criminal liability for their acts. The effect of s 5 is to make actions which were unlawful, lawful. It does not confer an indemnity or pardon, as the effect of its terms are such that there is no crime that requires a pardon.
Where a statute prescribes that there must be “reasonable grounds” for a state of mind including a “suspicion” it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[8] A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. In answering the question of whether the information afforded reasonable grounds for a suspicion regard must be had to the source of the information and its content seen in the light of the whole of the surrounding circumstances.[9]
[8] George v Rockett (1990) 170 CLR 104.
[9] R v Rondo [2001] NSWCCA 540, [53].
Before turning to consider the terms of s 4 it is appropriate to make findings on the evidence. Baulderstone had before her the information contained within the Application to Conduct a Covert Operation dated 12 April 2014. I do not intend to set out the information contained in the Application. In my view, when considering the information in its totality it was open for Baulderstone to form the relevant suspicion in relation to all serving members, as at the date of the information, of the Mantle team. There were reasonable grounds for her to form the suspicion that IM, MR, S, W and BR had engaged in serious criminal behavior. The report of X1 provided the factual basis for the suspicion.
I have not overlooked the force of the submissions of Mr Fabbian made on behalf of BR. In my view there were reasonable grounds to suspect that all then serving members of the Mantle team had engaged in serious criminal behavior whether they had attended the premises with X1 or not. The evaluation of the reasonableness of a suspicion must be undertaken in the context of the purpose of the power to approve and the civil liberties abrogated by its exercise.[10] As Baulderstone stated in evidence “from the information provided by WB that it was a cultural issue at Sturt Operation Mantle, that it was an accepted practice to steal items from crime scenes. That does not mean that she suspected the Mantle team as an entity. A fair reading of her evidence is that she suspected all members of the Mantle team individually upon receipt of the information from X1. The individual members made up the Mantle team. It is correct that she then considered that joining the Mantle team would make a person a suspect but that does not lead to the conclusion that she did not suspect the individuals making up the Mantle team. The reasonable grounds for suspicion for suspicion applied across all the Approvals.
[10] R v Nyguen (2013) 117 SASR 432, 437 [22].
For the reasons that follow those findings dispose of all the accused’s arguments (including KF, MH, BR and JC) in relation to s 4(2)(a).
The issue argued before me related to the meaning of the expression “that persons (whose identity may—but need not—be known to the officer) have engaged, are engaging or are about to engage in serious criminal behaviour of the kind to which the proposed undercover operations relate”. Did Baulderstone need to suspect on reasonable grounds each individual accused?
As previously discussed the starting point in ascertaining the meaning of a statutory provision is the text of the statute while having regard to its context and purpose at that time.[11]
[11] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384.
The purpose of the combined effect of ss 4(1) and 5 is clear. Sections 4(2)(a)-(d) provide the safeguards relating to the approval process. One of the purposes of the Act is to authorise undercover operations that are designed to collect evidence during the course of a criminal investigation. Evidence obtained by means of an authorised undercover operation will not be subject to discretionary exclusions based on the illegality of the acts of the authorised participants.
The terms of s 4(2)(a) are wide. The suspicion on reasonable grounds must relate to “persons (whose identity may—but need not—be known to the officer)” who “have engaged, are engaging or are about to engage in serious criminal behaviour”. The terms of the subsection do not suggest that the suspicion must attach to a specific individual. Further s 4(2)(a) contemplates that the identity of persons may be unknown. Section 4 clearly contemplates investigations where not all participants are known and that their identity may only be discovered later in the investigation. The Approval of a covert operation, as part of the investigation, may assist in discovering the identity of potential offenders.
By way of an example, if the information received by the ACB had been from an occupant of the house rather than X1, someone who did not know the identity of the members of the Mantle team, it still would have been open for Baulderstone to suspect on reasonable grounds, all then members of the Mantle team. The same inference of a “cultural issue” inside the Mantle team would have arisen.
Further, it was not necessary, in my view, for Baulderstone to have formed that suspicion about all the accused. She only had to form the suspicion, on reasonable grounds, that persons were engaging in serious criminal behavior. As long as that suspicion was held on reasonable grounds in relation to some persons, whether their identity was known or not, the terms of s 4(2)(a) were met. As stated earlier the evidence established that Baulderstone was entitled to form the suspicion in relation to IM, MR, S, W and BR and did so.
KF, MH and JC submitted that the evidence contained within the Application could not found a suspicion, on reasonable grounds, that they individually had engaged, were engaging or were about to engage in serious criminal behavior. None had what was described in the evidence as “probity” issues. I agree with the submission in relation to KF and JC but not MH.
MH had previously been a member of the Mantle team but left for a short period time between 5 December 2013 and February 2014. It was open for Baulderstone to form the suspicion there was a cultural issue within the Mantle team. This implies that the culture had existed for some time. MH was not a member at the time the matters were observed and heard by X1. However she was a member of the team both before and after the allegations of X1. Her time at the Mantle team, particularly before January 2014, and the inferences that can be drawn from the report of X1 were sufficient in my view for Baulderstone to hold a suspicion, on reasonable grounds, that MH had engaged in, was engaging in or was about to engage in serious criminal behavior.
KF and JC only became members of the team after X1 had made her reports. It is correct to observe that, unlike X1, neither KF nor JC had reported any “cultural” problems to anyone in authority. However there were potential explanations for that. Of itself the failure to report any issues could not found a suspicion on reasonable grounds for the purpose of s 4(2)(a). I accept the submissions of KF and JC that the information possessed by Baulderstone did not entitle her to form the suspicion in relation to them.
Having made that finding in favour of KF and JC, it is strictly not necessary for me to consider the other arguments.
That Baulderstone may have incorrectly held that view does not mean that she has not complied with s 4(2)(a). Baulderstone was not required to have the suspicion in relation to all accused. I accept the submission of the prosecution that it is not open for an accused to complain that “I ought not to have been suspected” as sufficient for the approval to be invalid. The accused had to demonstrate that “persons ought not [to] have been suspected”.
However, the fact that Baulderstone held that suspicion in relation to KF and (later) JC, which in the circumstances I find was not based on reasonable grounds, is relevant to the application of other subsections.
I find that Baulderstone complied with s 4(2)(a).
There is some overlap between ss 4(2)(b), (c) and (d). It is convenient to deal with s 4(2)(c) next.
Baulderstone had to be satisfied on reasonable grounds that the means were proportionate to the end; that is, that the proposed undercover operations were justified by the social harm of the serious criminal behaviour against which they were directed.
The theft of items by serving members of the police force from crime scenes, particularly when done in view of other members of the team and with their apparent approval, is a serious matter and had the potential to erode confidence in the police force and the justice system generally.
Baulderstone was faced with a potential issue of corruption within a particular operating unit. On the information received it was open for her to consider that it was a “cultural issue” occurring over a period of time rather than a “one off” occurrence. The nature of the issue was clearly relevant to the type of investigative methods that were available to the ACB. The evidence established that a covert operation was not the only technique employed; it was one of a number of techniques used to gather evidence.
The use of a covert operation and in particular a series of Targeted Integrity Tests, as one of a suite of investigative tools given the serious nature of the issue was a reasonable and proportionate response subject to the safeguards in ss 4(2)(b) and 4(2)(d).
I reject the accused’s arguments in relation to s 4(2)(c). I find Baulderstone complied with s 4(2)(c).
There is considerable overlap between ss 4(2)(b) and 4(2)(d).
For Approval to be given a perfect covert operation does not have to be proposed; only one that is not more extensive than could reasonably be justified in view of the nature and extent of the suspected serious criminal behavior.[12] There are likely to be uncertainties, difficulties and risks involved with any covert operation. The purpose of s 4 is to have in place safeguards to protect, as KF and JC submit, persons against whom there could be no suspicion attaching pursuant to s 4(2)(a).
[12] CICO Act, s 4(2)(b).
The touchstone of s 4(2)(b) is the question of reasonableness. All the subsections required Baulderstone to have reasonable grounds for her suspicion or satisfaction. Subsection 4(2)(b) introduces the further concept of the ambit of the proposed undercover operations being no more extensive than could reasonably be justified in view of the nature and extent of the suspected serious criminal behaviour.
The meaning and content of the expression “than could reasonably be justified” is informed by the words following namely “in view of the nature and extent of the suspected criminal behaviour”.
Baulderstone gave evidence that the grounds she relied on were stated at page 8 of her Approval. In her Approval Baulderstone noted that the members of the Mantle team were suspected of being involved in the theft of items from scenes in which they were investigating criminal offences; that the alleged offending was serious criminal behaviour; that the involvement of the investigators would assist in the investigation. Those grounds must be read in conjunction with the authorisation of the proposed undercover operation set out on page 9 of the Approval. As Baulderstone explained in her evidence, when considering the criteria of s 4(2)(b) the covert operation “couldn’t go outside the type of criminal behaviour that we suspected”. That is what she understood as being the meaning of the expression “the ambit of the proposed undercover operation”.
In my view Baulderstone was correct, as far as it went, in her interpretation of s 4(2)(b).
It was submitted by KF and JC that when considering the “ambit” of the operation consideration had to be given to the number of persons suspected and therefore subject to the operation. I accept that the number of persons suspected may be a relevant factor in some applications. For example if only one member of the Mantle team from January 2014 remained as at September 2014 it could be argued that the test was not reasonably justified. Here however there were at least four members of the Mantle team who were suspected namely IM, MR, BR and MH.
I accept the submission that Baulderstone did not properly consider the “ambit” of the covert operation as she assumed that all seven members in the Mantle team fell under s 4(2)(a). In my view Baulderstone was in error in assuming that KF and JC were persons “who have engaged, or are engaging or about to engage, in serious criminal behaviour” when considering the criteria under s 4(2)(b). I deal with KF’s submissions about the “ambit” of the Test later in these reasons.
In relation to s 4(2)(d) Baulderstone set out her grounds as follows:
·The operation is directed at members of Sturt Operation Mantle who are suspected of being involved in the theft of items from scenes of investigation pursuant to s 134 of the Criminal Law Consolidation Act 1935.
·The operation is only intended to provide those person who are suspected of being involved in the theft of items from scenes of investigation pursuant to s 134 of the Criminal Law Consolidation Act 1935 with the opportunity to undertake that course of action.
The grounds were consistent with the grounds stated in the document entitled “Approval to Conduct an Integrity Test”. Baulderstone did not consider that KF and JC may be police officers not suspected pursuant to s 4(2)(a) but subject to the covert operation. Thus she did not consider them to be, for the purpose of s 4(2)(d), “persons without a predisposition to serious criminal behaviour“.
This was consistent with her answers when cross-examined by Mr Abbott QC.
QAnd the ground you said, the ground you’ve written out, is that the integrity testing is directed at members who are suspected of being involved in the theft of items. In so far as you are able to say in this document that the integrity test is directed to members who are suspected, that could not apply to Ms KF.
AI disagree.
QOn what basis did you suspect Ms KF of having being involved in the theft of items.
AAs I said, the culture.
QAnything else
ANo.
HIS HONOUR
QShe was a member of Mantle, so therefore a suspect.
AYes.
MR ABBOTT
QDo you agree with His Honour’s comment.
AYes, I do.
QA member of Mantle, therefore a suspect.
HIS HONOUR
QThat was based on what you understood to be the ongoing culture.
AYes.
QOr a culture.
AYes.
As stated earlier Baulderstone did not have reasonable grounds on which to suspect that KF and JC were persons “who have engaged, or are engaging or about to engage, in serious criminal behaviour” when considering the criteria under s 4(2)(d).
In my view Baulderstone was in error when she addressed the criteria in both ss 4(2)(b) and 4(2)(d). I deal with KF’s submissions (adopted by the other accused) about the criteria under s 4(2)(d) later in these reasons.
It should be noted that the terms of s 4(2)(d) specifically contemplate an undercover operation being designed in which people not suspected may be involved in the operation. The safeguards are there to ensure that there is no “undue risk” that persons not suspected would be “encouraged” into serious criminal activity. Here the test was designed such that the officers attending would lawfully conduct their duties.
What is the effect of a breach of s 4(b) and (d)?
The challenge to the decision of Baulderstone is not based on the absence of a power to make the decision but rather on the claim that the decision-making process was flawed. The question that arises is whether the failure by Baulderstone to correctly apply the criteria under s 4 has the effect of invalidating the Approval given for the covert operation and therefore the integrity test.
In Project Blue Sky v Australian Broadcasting Authority[13] McHugh, Gummow, Kirby and Hayne JJ stated:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reveals a contestable judgement. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
[13] (1998) 194 CLR 355, 388-9.
It is not a useful test to determine the purpose of the legislation by asking whether compliance with the condition precedent is mandatory or directory. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.[14]
[14] Ibid at 390
The CICO Act is silent as to whether a breach of a requirement of the Act is a condition precedent to the validity of the subsequent decision. I accept that this Act, given that it in effect removes liability for police committing criminal acts, should be construed strictly.
The CICO Act authorises the use of undercover operations and assumed identities for the purpose of criminal investigation and the gathering of criminal intelligence within and outside the state. As already stated an Approval under s 4 enables an authorised participant to incur “no criminal liability” by taking part in the undercover operation in accordance with the terms of the Approval. In effect it renders what may well have been an illegal act by an undercover operative, legal. If there is no illegality discretions under Bunning v Cross[15] (or Ridgeway[16]) may not be relevant.
[15] (1978) 141 CLR 54.
[16] Ridgeway v The Queen (1995) 184 CLR 19 (‘Ridgeway’).
Section 4 of the CICO Act seeks to balance the right of the police, or other agency, to investigate, in a covert and potentially illegal manner, alleged crimes, while respecting the rights of persons who may be subject to such conduct. While it could not be said that s 4 is couched in imperative terms, s 4(2) provides safeguards for persons suspected and also those not suspected. The power to authorise an undercover operation cannot be applied capriciously or without grounds. Section 4 does have a “rule like” quality in that the conditions are easily identified and applied. Self-evidently the persons, either suspected or not suspected, subject to the covert operation have no right to be heard on the question of the safeguards contained within the section. Compliance with the safeguard provisions is important for the operation of the scheme of the CICO Act. The Act contains no penalty for a failure to comply with the terms of s 4.
Whether or not an error leads to invalidity of the Approval process will depend on the circumstances of the case. Not every error will lead to a conclusion that an Approval was invalid. Errors in relation to form rather than substance may not be sufficiently significant to lead to invalidity of an Approval.

In my view, s 4(2) imposes essential preliminary requirements to a valid approval and I infer that a purpose of the legislation is that an act done in breach of the safeguard provisions should be invalid. In my view the failure to comply with ss 4(2)(b) and 4(2)(d) taken either individually or together renders the approval invalid.
Baulderstone adopted the same approach to all the Approvals however they were named. Thus all the Approvals suffer from the same defect and all are therefore invalid.
I do not consider that the errors made by Baulderstone can be restricted in their operation to simply KF and JC. A failure to comply with the requirements of s 4 in relation to those officers means the process against all officers is invalid.
I find that all the Approvals, irrespective of whether they were new Approvals, extensions or renewals, are invalid against all accused.
KF submitted that “the power to conduct any Undercover Operation comes as a result of compliance with the CICO Act. If the CICO Act is not complied with, then there is no power to authorise the Undercover Operation. In that event the evidence obtained as a result of Undercover Operation in breach of the CICO Act is evidence that is illegally obtained.”[17] If by that submission it is meant that the Ridgeway/Bunning v Cross discretion is enlivened then I agree. That is, the evidence obtained is tainted, to some extent, and the discretion is to be exercised. Otherwise the submission is expressed too broadly.
[17] The Accused KF’s Final Closing Submissions on Voir Dire dated 22 November 2017 at [18].
It is necessary to consider whether s 4 confers a power to conduct the test at all or whether it simply renders legal activities that may be illegal.
The expression “undercover operations” is defined in s 3 of the CICO Act:
“undercover operations” means operations (which may include conduct that is apart from this Act illegal) of which the intended purpose is to provide persons engaging or about to engage in serious criminal behaviour an opportunity to—
(a) manifest that behaviour; or
(b) provide other evidence of that behaviour;
Undercover operations, for the purpose of this Act, has a restricted meaning. It does not cover all police undercover operations. It applies only to the expressed intended purpose. Self-evidently not all undercover operations have that as their purpose. The key word in the section is “opportunity”. That suggests a positive act by the police.
The question arises then as to what purpose does the approval serve. Compliance with s 4 confers the benefits of s 5. The Act is silent about any consequence of a failure to comply with s 4.
This part of the CICO Act was enacted to deal with the issue that arose in Ridgeway. Provided a person is “suspected on reasonable grounds” they can be subjected to the undercover operation subject to the safeguards in s 4. If the safeguards are complied with and the Approval granted then the authorised participants do not attract criminal liability and no question of illegality arises.
A failure to comply with s 4 of the CICO Act does not lead to the consequence that the entire operation is unlawful. An undercover operation per se does not always require an illegal or improper act by the police. An opportunity may be given by the police without the necessity of an illegal act. Approval may be sought in case such activity became necessary.
However it was always anticipated here that the investigation would involve the police in some illegal acts and the Approvals were sought for the authorised participants to attract the protection of s 5. That is, the acts involving illegal activity by the police would no longer attract “criminal liability” as discussed earlier. The entire operation is not “unlawful”; rather parts of the undercover operation involved illegal activity on the part of the police. The evidence is not inadmissible; rather the Bunning v Cross discretion (and/or the Ridgeway discretion) is enlivened.
No participants in the Targeted Integrity Tests were validly authorised and therefore cannot invoke the protection provided in s 5 of the CICO Act. The discretion under Bunning v Cross and Ridgeway is therefore enlivened in relation to each accused.
ACB Policy
At the time she submitted the Application to Conduct a Covert Operation, Dalton also submitted an Application to Conduct Targeted Integrity Tests pursuant to Local Policy#4 Integrity Testing (the Policy). Baulderstone was requested to approve that application.
The purpose of the Local Policy was to “establish the circumstances in which an integrity test will be utilised and the protocols to be followed”. An application in the approved format had to be prepared by the investigating officer for submission to the authorising officer. Where the application included a covert/undercover operation the application was to be completed in a manner that complied with the requirements of the CICO Act and General Order, Covert investigations/undercover operations.
Similarly Part 5 of the Policy stated that where the application included a covert or undercover operation then the approval process was to be undertaken in accordance with the CICO Act 2009 and General Order, Covert investigations/undercover operations.
For approval the authorising officer had to be of or above the rank of Superintendent. For a Joint investigation between the ACB and ICAC the authorising officer was the Officer in Charge of the ACB with the Director of Operations ICAC.
The Policy stated that no random integrity tests were to be undertaken.
Evidence
Baulderstone began work as the Officer in Charge of the ACB in February 2014. Part of her duties included rewriting the Local Policy#4 Integrity Testing then in force. Although the commencement date on the later Policy was 1 June 2014, that is after the first approval for a covert operation and integrity test was granted, Baulderstone agreed that she applied the later policy when approving all applications in this matter.
The policy clearly required updating to take into account that the Criminal Law (Undercover Operations) Act 1995 (SA) had been repealed and replaced by the CICO Act. The CICO Act generally adopted the same language as the Criminal Law (Undercover Operations) Act for the requirements of the approval process for a covert operation. The policy had to be reviewed to include the role of ICAC.
Baulderstone made significant changes to the Policy. The “Integrity Test Committee” was abolished. Other changes were also made. As submitted by JC the amendments:
a.placed the power of approving the integrity test on one or two individuals rather than a team;
b.allowed for the Officer in Charge of the ACB to participate in the approval process “should it be justified”;
c.removed the requirement for legal advice.
When asked about the commencement date of the later policy being 1 June 2014 Baulderstone stated that “it didn’t really make any difference” – she had written it in February but had not got around to “approving it and submitting it”. The evidence proceeded on the basis that Baulderstone was attempting to comply with the redrafted Policy even though it was not approved until 1 June 2014.
When giving evidence Baulderstone agreed with the proposition that, in breach of the Policy, she had not sought the approval of the Director of Operations of ICAC. She was unable to give a convincing answer why she had not sought such approval; indeed her evidence was inconsistent on the topic. Baulderstone, had rewritten the policy in February 2014 and had difficulty in explaining in 2017 why she had breached the Policy in April 2014.
The following interchange occurred:
HIS HONOUR
QYou’ve been asked this before but I must admit that I am a little bit confused. In relation to the question of authorisation in breach of your own policy that you had written, when was it that you first realised that there was a breach of your own policy.
AI can’t remember that. To be honest, I can’t remember.
Although Baulderstone was not asked about her notes I infer that there was nothing in her notes that suggested she did seek the authorisation of Moyle.
Unfortunately the relevant notes and files from ICAC were not released until after Baulderstone had given evidence. I agree with the submission of Mr Abbott QC that the late production of these documents created difficulties for counsel for all accused and indeed for Baulderstone.
Moyle gave evidence. He produced as part of his evidence in chief (by affidavit) a bundle of documents which included draft copies of the Application for Approval and a draft Approval. These documents were sent to Moyle under the cover of a “Forwarding Minute” signed by Baulderstone.
The Minute stated:
Please find attached a copy of the Covert Ops application, integrity [sic] test application, draft approval for the covert ops and draft approval for the integrity test re Op Bandicoot for your consideration.
The Minute is undated. Moyle provided the documents to the ICAC Commissioner. Moyle did not recall signing any documentation “authorising” the undercover operation or integrity test. Moyle stated that he approved the applications for covert operations. The ICAC Commissioner was kept informed and also approved the applications.
Thus the admission by Baulderstone that she breached the policy, at least in relation to keeping ICAC informed and getting their approval, at least verbally, was incorrect. The explanations given by her as to why she did breach the policy turned out to be unnecessary.
Baulderstone provided reasons in writing when authorising the Targeted Integrity Tests; Moyle did not. KF submitted that as Moyle was a joint authorising officer he also needed to provide his reasons in writing rather than just agreeing with Baulderstone. The Policy is not well drafted. However, the reasons for the approval were given in writing and Moyle agreed with them; that is sufficient in the circumstances for compliance with s 4 of the CICO Act but not necessarily the Policy. While the exact date that Moyle received the documents is not clear the “forwarding minute” accompanying the Approval documents indicates that they are drafts. Therefore they must have been sent before 24 April 2014. I acknowledge that the electronic notes of Moyle recorded a step being taken on 1 May.
The evidence is not entirely clear. On all of the evidence, in particular on the affidavit of Moyle, I find that the first Application (and all subsequent applications) was approved by Moyle but not signed by him in accordance with the Policy. Exactly what Baulderstone did is not clear but her recollection was incorrect; she did not “ignore” the Policy; she attempted to comply with it. I reject the submission of KF that Baulderstone’s evidence was consistent with her realising that Moyle authorised the Approvals but not in writing in accordance with the Policy. It was clear from the cross-examination that she had no recollection of sending the documents to Moyle. I have had regard to the inconsistencies in her evidence on this topic. She was clearly reconstructing her evidence on the false premise that she had not sought any approval from Moyle. While the evidence she gave about that was wrong I do not accept that she was deliberately trying to mislead me.
I refer in passing to the telephone call Ms Baulderstone had with Mr Powell, counsel for the prosecution, shortly prior to her commencing her evidence. I note the “resolution” of the issue by way of agreed facts. I expressed at the time my unease in that resolution. That unease was a reflection of the fact that the agreed statement of facts leads to a preference by the parties to acceptance of one version over the other. While I will proceed on the basis of the agreed statement of facts, in all of the circumstances I am not prepared to draw an adverse inference against Baulderstone simply on that issue. I proceed on the basis that Baulderstone was in error in what she said but I draw no further inference.
In evidence Moyle could not recall authorising any operation in writing; there are no documents produced that would suggest he did.
However Moyle, in his affidavit, stated that he had bi-monthly meetings with Baulderstone and her staff about this operation. He said he received a copy of the Investigation Plan and that he attended meetings with Baulderstone and Dinning where they discussed investigation strategies. Moyle discussed the progress of the investigation with the Commissioner. Moyle stated in his affidavit:
Throughout the course of this investigation I kept the Commissioner informed of developments. While I and the Commissioner viewed and approved the Investigation Plan and Covert Investigation applications and plans, including the full details of the planned integrity tests, and agreed with the course all courses [sic] of action, these documents and plans were prepared by ACB staff.
I am aware of the ACB Local Policy 4, Integrity testing and have read the document. I cannot recall exactly when I was provided with a copy of this document to read but it was some time either before or at the time of the commencement of this investigation because I was aware I was a member of the Committee, along with the Officer in Charge of ACB, to approve integrity test scenarios.
I accept that Moyle authorised, with Baulderstone, the Approvals. The Policy does not state that the Approval document had to be signed by both Baulderstone and Moyle. However the Policy did incorporate s 4 of CICO Act which required the Approval to be in writing and signed by the person giving the approval.
It is an unusual situation in that the Approval complied with the CICO Act which does not require there to be a “joint approval”; however by implication the Policy required the Approval to be signed by both Baulderstone and Moyle. To that extent there was a breach of the Policy. When exercising my discretions in this matter I will take that breach into account but in the circumstances, particularly where Moyle did in fact authorise the Approvals, it has little weight.
However, the Policy required Baulderstone, where the application included a covert operation, to undertake the approval process in accordance with the CICO Act and General Order, Covert investigations/undercover operations. Given that I have found that the Approvals for the Covert Operations did not comply with the CICO Act then the approvals for the Targeted Integrity Tests must be similarly flawed. To that extent the Approvals given were in breach of the Policy.
The prosecution submitted that a breach of the Policy, of itself, or indeed any “policy”, could not enliven the Bunning v Cross discretion. That is the administrative error is not “illegality or unlawfulness” in the relevant sense. I have reservations about that as a general proposition but I do not have to decide the point. I have found that the Bunning v Cross discretion (and other discretions) is enlivened due to the invalidity of the CICO Act Approvals. A breach, by a police officer, of an internal policy is a factor to be considered in the balancing task undertaken when exercising the discretion.
The Time Period for Renewal and/or Extension
Section 4(4) of the CICO Act states:
The approval must—
(a)be in writing; and
(b)be signed by the person giving the approval; and
(c)specify—
(i)    the date and time of the signing, and the time from which the approval takes effect (which may be contemporaneous with or later than the time of signing but cannot be earlier); and
(ii)     the persons who are authorised to participate in the operations; and
(iii)    the nature of the conduct in which the participants are authorised to engage; and
(iv)    a period (not exceeding 3 months) for which the approval is given.
Section 4(5) of the CICO Act states:
A senior police officer or the Independent Commissioner Against Corruption (as the case may be) may renew, from time to time, an approval for 1 or more further periods.
It is common ground that Dalton, in addition to the original Application for Approval, submitted Applications to “Renew a Covert Operation” on 17 June 2014 and 8 September 2014. Baulderstone granted “Approval to Extend an Undercover Operation” on 19 June 2014 and 12 September 2014 respectively.
All the approvals granted by Baulderstone, other than the approval to conduct Integrity Tests, were for “a period not exceeding 3 months”.
KF’s Submissions
KF submitted that the expression “for a period not exceeding 3 months” had the effect of approving an undercover operation for an unknown period but not exceeding three months. The two “Extensions” were approved before the three month period of the previous approval had expired but neither approval revoked, specifically, the earlier approval. It was arguably possible, without revocation, for there to be two operative Approvals for one targeted test. It was submitted that this rendered the approvals invalid as the expression used impermissibly conferred a discretion on the authorised participants to decide themselves when they would cease to engage in the authorised conduct.
KF also submitted that the Applications for Renewal of 17 June 2014 and 8 September 2014 were in fact variations rather than renewals. Variations, it was submitted, could not be authorised under the CICO Act. The 17 June 2014 Application purported to add 12 new authorised participants. Further JC was added as a member of the Mantle team. The Application also included the “probity” history of JC.
The 8 September 2014 Application sought to add Dalton as an authorised participant; she had been erroneously overlooked in the earlier applications. Further, this application differed from the April 2014 and 17 June 2014 Applications in that it was seeking approval for only one Targeted Integrity Test namely at the Mitchell Park address. The other Applications sought approval to create up to three tests.
KF submitted that the inclusion of the additional investigators and the extra subject (JC) meant the Approvals given were not renewals but related to a new operation.
Baulderstone, when giving evidence, stated that she knew that, in approving the subsequent Applications, she was adding and deleting authorised participants and also adding a potential suspect, JC. She considered that she was still renewing an existing Approval rather than varying it or extending it. Baulderstone considered that she was complying with the CICO Act. It is clear from the Approvals that on every occasion she was asked to approve an application Baulderstone considered all of the criteria under s 4 of the CICO Act.
Prosecution’s submissions
Mr Jacobi, for the prosecution, submitted that s 4(5) of the CICO Act does not authorise a separate “species” of Approval. He referred to the expression in s 4(5) of “from time to time” as indicating that the power to approve an application was amenable to be exercised on more than one occasion. That is on a proper construction of s 4 the discretionary power to approve an application was not spent by the first Approval. The giving of the first Approval did not lead to Baulderstone being functus officio. Support for this interpretation of the expression, it was submitted, could be found in s 37 of the Acts Interpretation Act 1915 which states relevantly:
37—Powers may be exercised from time to time
A power given by any Act to do any act or thing (including the making of an appointment), or to submit to any act or thing, is capable of being exercised from time to time, as occasion requires, unless the context, or the nature of the act or thing, indicates a contrary intention.
The prosecution submitted, in support of their position, that it was necessary, when considering whether to renew an approval, for ss 4(2), (3) and (4) of the CICO Act to be complied with. This is indeed what Baulderstone, in general terms did. Thus it was irrelevant whether new investigators or subjects were added to the Approvals. Each was an Approval on its own and there was no need for there to be “identity” between the Approvals.

In French v Scarman the conduct of the police officers was deliberate. They deliberately refrained from doing what the Act required them to do. King CJ stated:[34]
I think that such an attitude to a safeguard for the citizen deliberately put there by Parliament for his protection merits condemnation. Perhaps it is appropriate to repeat what I said in Walker v Marklew: “It is important therefore that police officers and the public be reminded of the purpose and the importance of the rules which the courts have developed for the protection of citizens who are under suspicion of crime and that police officers be reminded of the necessity of complying with them.” That observation applies with equal force to rules which Parliament has laid down for the protection of citizens.
(Citations omitted)
[34] (1979) 20 SASR 333, 340.
In Bunning v Cross Stephen and Aickin JJ said:[35]
These safeguards the executive, and, of course, the police forces, should not be free to disregard. Were there to occur wholesale and deliberate disregard of these safeguards its toleration by the courts would result in the effective abrogation of the legislature’s safeguards of individual liberties, subordinating it to the executive arm.
[35] (1978) 141 CLR 54, 77–78.
In my view where there is a failure to properly apply “safeguards” which Parliament has enacted for the protection of citizens, as it has here, the Bunning v Cross discretion is enlivened. Whether the conduct of the police was accidental, reckless or deliberate is a factor to be considered when exercising the discretion.
What factors are to be taken into account in the exercise of the discretion?
The exercise of the discretion involves balancing competing interests.
There is the consideration of “high public policy” involving the need to discourage unlawful conduct on the part of law enforcement officers and to preserve the integrity of the administration of the criminal justice system to be weighed against the need to bring criminals to justice.
As Barwick CJ stated in R v Ireland:[36]
Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.
[36] (1970) 126 CLR 321, 335.
Barwick CJ in Bunning v Cross stated:[37]
The question is whether the public interest in the enforcement of the law as to safety in the driving of vehicles on the roads and in obtaining evidence in aid of that enforcement is so outweighed by unfairness to the applicant in the manner in which the evidence came into existence or into the hands of the Crown that, notwithstanding its admissibility and cogency, it should be rejected.
[37] (1978) 141 CLR 54, 64.
In Bunning v Cross Stephen and Aickin JJ said:[38]
What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.
[38] (1978) 141 CLR 54, 75.
Stephen and Aickin JJ also stated:[39]
Moreover the courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law. On the other hand it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law.
[39] (1978) 141 CLR 54, 78.
The factors involved in the exercise of the discretion were identified by Kirby J in R v Swaffield as:[40]
[40] (1998) 192 CLR 159, 212-213 [135].
1.The nature of the offence charged;
2.The probative value of the evidence and its importance in the proceedings;
3.Whether the conduct was deliberate, or resulted from a mistake;
4.Whether the nature of the conduct affected the cogency of the evidence so obtained;
5.The ease with which those responsible might have complied with the law in procuring the evidence in question;
6.The legislative intention (if any) in relation to the law that is said to have been infringed; and
7.Whether such conduct is encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings.
Other factors may be relevant depending upon the facts of the case.
This analysis was adopted by Stanley J in R v Rockford. Stanley J emphasised the importance, when exercising the discretion, the importance of the concept of “high public policy”. He stated:[41]
In exercising the discretion, the judge properly considered the seriousness of the offending, the cogency of the evidence and its probative importance to the prosecution, and his finding that the investigating police officers did not deliberately contravene the law in entering the property to undertake their search. In weighing these factors, the judge acknowledged the risk that treating cogency of evidence as a factor favouring admission where the evidence is obtained unlawfully may serve to engender the erroneous view that, if evidence is damning enough, that factor will outweigh the illegality involved in obtaining it, thereby rendering meaningless the common law and statutory limitations on the exercise by law enforcement authorities of the powers of search and entry.
The factors considered by the judge were relevant to the exercise of the discretion. They weigh in favour of the admission of the evidence obtained as a result of the unlawful search and entry. However, in my view, the judge failed to have regard to what Deane J describes in Pollard as the principal considerations of “high public policy” which favour exclusion of evidence procured by unlawful conduct on the part of investigating police, namely, the threat which disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. As his Honour observed, it is the duty of the Court to be vigilant to ensure that unlawful conduct on the part of police is not encouraged by an appearance of judicial acquiescence. The exclusion of evidence obtained in this way is in the public interest because it is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct and to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process.
[41] (2015) 122 SASR 391, 401 [38]–[39].
The factors
I turn to the question of the exercise of the discretions. I indicate that when assessing the cogency of the evidence I have relied on the written outlines of the prosecution and taken into account the various submissions by the accused in relation to those outlines.
I accept that the safeguards contained within s 4 are to guard against the abuse of the advantage conferred by the granting of the Approval. As such I accept that there is considerable public interest in the observance by the police of the proper processes being followed.
The offences charged are serious involving serving police officers allegedly abusing their public office. The evidence obtained in the Targeted Integrity Tests themselves and back at the office of the Mantle team is probative and essential to the prosecution. There would be no case at all against the officers if the evidence obtained at the Tests was excluded.
I have already made findings about the conduct of Baulderstone and Dalton. In my view they did not attempt to mislead me in their evidence. The errors made in the granting of the Approvals was not a deliberate cutting of corners. The errors arose from a mistake in Baulderstone’s assessment of “suspicion on reasonable grounds”. The errors were not deliberate nor were they reckless.
It is important to consider the errors that were made and the consequences of the errors. The invalidity of the Approvals led to some illegal conduct by the police. I set out the illegal acts earlier in these reasons. It could not be said that the nature of the conduct affected the cogency of the evidence. The illegal acts related to the setting up of the premises with some items, the use of prescribed equipment and cannabis, and two telephone calls, with false information, to Crime Stoppers. The relevant evidence related to what was done at the two Tests and back in the Mantle team office.
The illegal conduct here is different to the conduct of the police in Ridgeway. In Ridgeway, law enforcement officers committed a crime in order to establish an element of a further offence which they anticipated would be committed by the accused. However I accept the submission of KF that the conduct of the officers in this matter eventually led to the crimes being allegedly committed. Without the renting of the premises, the “prescribed equipment” being in place and the call to Crime Stoppers, the Tests would not have gone ahead. In that sense there is a causative link. I do not accept however that the unlawful conduct of the police procured the offences with which the accused were eventually charged as occurred in Ridgeway. I also reject the submission of KF that “presence” at the Test scene, because the charges are almost entirely framed as aid and abet against her, is an element of the offence. The false information provided to Crime Stoppers did no more that have her attend at a particular address, not to a crime of Abuse of Public Office.
However even if I am wrong about that characterisation the illegal conduct of the police is not as serious as that demonstrated on the facts of Ridgeway. The illegal acts here led to the opportunity for the accused to conduct themselves honestly at the Test site. Opportunity cannot be equated with actually committing an act which is an element of the crime.
The illegal conduct of the police did not affect the cogency of the evidence.
Baulderstone attempted to comply with s 4 of the CICO Act. I reject the submissions that she acted in a way which was tricky or deceptive. The errors I have identified relate to her interpretation of s 4(2)(a). That affected her approach to the other subsections mentioned. It is clear from my findings that it would have been relatively easy for Baulderstone to have complied with s 4. She was not attempting any “shortcut” or knowingly abusing her role.
My earlier findings that Baulderstone failed to properly consider ss 4(2)(b) and (2)(d) of the CICO Act require further explanation.
Section 4(2)(b) required Baulderstone to be satisfied on reasonable grounds that the ambit of the proposed undercover operations is not more extensive than could reasonably be justified in view of the nature and extent of the suspected serious criminal behaviour. I have found that she did not consider this section appropriately as she did not take into account, at least on the June and September approvals, that KF and JC were not “suspected” persons.
KF and JC submitted that there was “simply no justification for the refusal to confine the test to only those members of the Sturt Mantle team who were suspected of having been engaged in serious criminal behaviour”. I do not accept that submission.
Dalton gave evidence that the type of integrity tests to be used was discussed prior to the first application on 14 April 2014. She said that ultimately it was decided that it would be impossible to dictate which members did and did not go to any particular test and so they proceeded to design the tests at Terra Avenue and Kennards. Dalton thought she discussed that with Balderstone.
Considerations discussed included whether some members could be specifically tasked by a senior officer to attend a particular matter. It was considered that the direction of a senior member would reduce the likelihood or chance of dishonest behaviour being exhibited. Dalton said it was not impossible for someone such as Chief Inspector Dinning to direct, for example, KF to do other duties, but that she considered that there was a risk that such action could destroy the integrity of the investigation. Further there was always a risk that non targeted members might attend. The evidence establishes that consideration was given to targeting specific members of the Mantle team and not others. For operational reasons it was decided not to proceed on that basis although Dalton did concede it “could have” been done.
Section 4(2)(b) requires that the ambit of the proposed undercover operations is “not more extensive than could reasonably be justified in view of the nature and extent of the suspected serious criminal behaviour”. Consideration was given to targeting specific members and that suggestion was discarded. Even if Baulderstone had considered that KF and JC were not “suspected” persons, the ambit of the operation could well have remained the same. Given the operational reasons discussed that would have been a reasonable approach.
Leaving aside the question of whether once KF and JC were in the Mantle team they should have been “suspected”, both KF and JC argued that they should never have been transferred into the Mantle team in any event. That is, suspecting that there was a “culture of dishonesty” in the team generally the police (in a general sense) allowed two younger officers to be exposed to the culture.
Some members of the Mantle team as at January 2014, against whom there were “reasonable grounds to suspect” transferred to other areas of the police force. KF and JC were their “replacements”.
This presented a problem for the investigators. It took some time to organise the tests and other investigations. To hold back legitimate applications for transfers may have raised suspicion amongst the members of the Mantle team. To allow transfers but not replace the members also may have raised suspicions. It was very much an operational decision. The risk to the officers replacing the transferring members was clearly there. However, JC and KF simply had to honestly carry out their duties.
I accept the submissions on behalf of KF and JC that the decision to allow them to join the Mantle team could be seen to be unfair and I will take that into account in exercising my discretion. However, such a factor needs to be seen in the context of the decisions faced by the investigation team and the eventual design of the test.
Section 4(2)(d) relevantly required Baulderstone to be satisfied on reasonable grounds that “the undercover operations were properly designed … without undue risk that persons without a predisposition to serious criminal behaviour will be encouraged into serious criminal behaviour that they would otherwise have avoided.” I have found that Baulderstone, for the same reasons discussed earlier, did not properly consider this subsection. She did not consider, for example, whether KF and JC faced an “undue risk”.
Baulderstone failed to turn her mind to the fact that the operation was to be designed to discriminate, as the section provides, between persons suspected and those not suspected. However it should be noted that the subsection states that persons without a predisposition to serious criminal behaviour should not be subject to undue risk, not no risk, of encouragement into serious criminal behaviour.
“Undue risk” is not defined in the Act. Undue must be given work to do. It qualifies “risk”. Undue means unwarranted, inappropriate and unjustifiable.
Baulderstone said the test was nothing unusual. It was a standard tasking for the Mantle team to go to and process the scene and then book the exhibits. The test was designed to ensure the “scene” resembled what the Mantle team came across when exercising their usual duties. Care was taken to ensure that there was no “encouragement” involved in the test. What was provided was an opportunity for the suspected behaviour to be exhibited.
It could not be said that KF and JC were, in the event, subject to an “undue risk”. Officers not suspected of the serious criminal behaviour simply had to attend a “normal” crime scene as part of their duties and not dishonestly deal with property.
As indicated earlier I do not have to decide the question of whether a breach of the Policy of itself could lead to the discretion being enlivened. In my view the discretion is enlivened in any event and any breach of the Policy becomes relevant to the exercise of the discretion. The Policy adopted the requirements of s 4 of the CICO Act. A breach of s 4 of the CICO Act was inevitably a breach of the Policy. However the Policy had an additional feature of importance. A police office was not to be subject to a “random test”. If the test was random it would be an additional breach of the Policy.
The question therefore arises whether KF and JC were subjected to a random test in breach of the Policy.
There is a tension between s 4(2)(d) and the suggestion of a random test. These tests were not designed as a “random test”. It is clear that the test was intended to be targeted although as I have found not all members of the Mantle team could have been suspected on reasonable grounds. Section 4(2)(d) contemplates the possibility that persons not suspected can be subjected to a test as long as there is no “undue risk” of encouragement into serious criminal behaviour.
In my view this was not a “random test” for KF and JC as contemplated by the Policy. The failure to properly consider the terms of s 4 were a breach of the Policy but that failure did not result in the test being a random test for the purposes of the Policy.
The Policy also required that officers who failed the first test were to be informed of the failure. Those officers were not informed. There were obviously sound investigative reasons for not informing those officers. However it was a breach of the Policy and I take that into account in exercising the discretion.
I accept that compliance with the law to procure the evidence could have been done with “ease”. However as discussed there was no deliberate cutting of corners in this case. Ease of compliance may sometimes be a point against the admission of evidence but I do not consider it to be of much significance in this case. Indeed had she correctly assessed the position of JC and KF it is likely, given her evidence when challenged and the way the test was designed, the tests would have gone ahead in the same manner.
Baulderstone was the head of the ACB and held the rank of Superintendent. She was, along with the ICAC representative Moyle, responsible for the Approvals and the investigation generally. I have rejected the submission that Baulderstone embarked on the s 4 Approvals by deliberately taking a shortcut. In the circumstances she made a genuine mistake about the interpretation of the section. She did not seek legal advice about the interpretation of the section. With the acuity of hindsight it would have been preferable if she had. However I do not consider that she acted “recklessly” in failing to do so.

There is nothing in this case that would suggest that her conduct in the case was encouraged or tolerated by those higher in authority in the police force in the sense as those expressions were used in Ridgeway.
I have taken into account all the submissions of both the prosecution and KF. I take into account the “high public policy” considerations as discussed in the authorities.
In the exercise of my discretion in relation to KF, whether it be a Bunning v Cross discretion and/or a Ridgeway discretion, I refuse the application.
In relation to the general unfairness discretion described in Lobban and discussed in Dunstall I exercise it on the basis articulated by Nettle J in Dunstall namely that where none of the recognised discretions are engaged, the receipt of otherwise admissible evidence would be productive of such unfairness as to result in an unacceptable risk of miscarriage of justice. I decline to exercise the discretion and I therefore refuse the application.
In reaching my conclusion I decided that Moyle’s failure to sign the Approvals did not lead to invalidity of the Approvals. I have also found that incorrectly describing the Applications and Approvals after the initial approval on 24 April 2014 did not lead to invalidity. I have also found that Baulderstone complied with s 4(2)(c) of the CICO Act. I indicate that even if I am wrong about those matters either individually or collectively I would not exercise my discretion any differently. I have not overlooked, in making these observations, that I have made a number of other decisions relevant to the exercise of my discretion.
It was submitted by KF that an alternative remedy for any illegality found was that of a stay as an abuse of process. In my view there is no support for that submission in the case of Dunstall. The discussion in Dunstall about a stay was in the context of contrasting the remedy of a stay with the suggestion of a “general unfairness” discretion.
I accept the submissions of the prosecution that the Court has no power to order a stay on the basis submitted by KF. Even if I am wrong about that given my findings I would dismiss the application for a stay.
It is convenient for me to deal with the submissions of JC and MH before turning to the other officers due to the similarity of their circumstances.
JC
I have taken into account the submissions made on behalf of JC. Many of the submissions made on his behalf are covered in my reasons relating to KF. I have assessed the evidence against him as cogent. I reject the submission that the evidence is equivocal at best.
However I add the following.
I reject the submission that Baulderstone deliberately or recklessly disregarded the provisions of the CICO Act.
JC further argued that as head of the ACB Baulderstone lacked “independence” and therefore impartiality when assessing the criteria under s 4 of the CICO Act. It is common ground that Baulderstone in her capacity as the head of the ACB approved the Investigation Plan and was involved in other aspects of the investigation. Whilst the day to day activity of the investigation was left to others I accept that Baulderstone had an overall understanding of the investigation and its progress. Such an understanding was required by her job.
This of course does not mean that she could not be impartial. While I have found that she breached the terms of s 4 I accept that she conducted the task diligently and applying the criteria, as she interpreted them, with impartiality. I reject that submission. I do not accept the submission that she simply “rubber stamped” the Approvals. I accept her evidence in that regard.
I reject the submission that Baulderstone simply amended the Policy to include herself in the investigation. While the amendment to the Policy removed the “Committee” process for a joint investigation it included “joint” authorisation.
I dismiss the application for the same reasons.
MH
MH submitted that she should be seen as being in the same position as KF and JC in that at the time of X1’s allegations she was not a member of the Mantle team. However, not long before January 2014, she had been a member of the Mantle team and then returned not long after the allegations made by X1. The allegations made by X1 clearly indicated that the “culture of dishonesty” suspected did not develop in January 2014 and therefore existed prior to X1’s allegations. As indicated earlier I consider that Baulderstone was justified as including her in the “suspects”. However even if I am wrong about that her position can be no better than that of JC and KF in relation to the exercise of the discretion on that point alone.
I have taken into account the submissions made on behalf of MH. I consider the evidence against her as cogent. Even if I am wrong about that aspect, and that she therefore fell into the same category as KF and JC, I would not exercise my discretions any differently. I refuse the applications of MH to exclude the evidence.
MR
MR adopted the arguments of KF.
I add the following remarks.
I reject the submissions of MR relating to the assessment of the strength of the evidence leading to Baulderstone “suspecting on reasonable grounds” that MR was a person contemplated by s 4(2)(a). The evidence must be looked at in its entirety. Isolating the various pieces of evidence and discounting them individually overlooks the task required to be undertaken by Baulderstone.
Further I reject the argument that Baulderstone simply attached her suspicion to an entity, namely the “Mantle team”. I accept that in relation to KF and JC she formed her suspicion, erroneously, simply because they had joined the Mantle team. I also accept that she did suspect the whole team. However a fair reading of her entire evidence is that she held that suspicion against some officers individually and that led to her to include all members.
MR further submitted that as Baulderstone and Dalton had conceded that they did not have sufficient evidence to arrest any of the members of the Mantle team pursuant to s 75 of the Summary Offences Act 1953 that therefore they could not have had the relevant state of mind for s 4 of the CICO Act.
There is an obvious difference simply on the difference in the wording of the two sections. To exercise the power to arrest the officer has to have reasonable cause to suspect. That is a materially different consideration.
Leaving aside the different wording the context of the sections cannot be ignored. In context, s 4 of the CICO Act clearly incorporates consideration that the police may not have sufficient evidence to arrest and hence the need for the covert operation.
As the Court said in R v Nguyen:[42]
The evaluation of the reasonableness of the suspicion must be undertaken in the context of the purpose of the powers, and the civil liberties abrogated by their exercise.
[42] R v Nguyen (2013) 117 SASR 432 at 437 [22]; citing R v Davidson (1991) 54 SASR 580, 584.
The power to arrest and the approval for an undercover operation are materially different matters.
I reject that submission.
MR also submitted that Baulderstone’s role as the head of the ACB and therefore this investigation was inconsistent with the requirement that the approving officer be impartial.
The Act requires a high ranking police officer to conduct the Approval assessment. The Act contains no express provision suggesting that the high ranking officer should be independent of the investigation. In my view when taking into account the scope and purpose of s 4 of the Act there is no implied requirement that an approving officer should have no role to play in the investigation. I reject the submission.
MR submitted that members like him who were suspected of contributing to the culture of dishonestly were prevented from leaving. It was submitted that this fact was significant. It was submitted that “this fact betrays significant doubt over the veracity of the evidence of all officers as regards the true nature of their suspicion.”
The submissions refer to an answer given by Dinning at Transcript page 495. The answer given by Dinning does not support that submission. Further, at Transcript page 498, when asked whether MR was deliberately held back to subject him to the targeted test Dinning replied “no”. Curiously the submissions do not refer to that answer. The only member Dinning considered not moving was IM. Dinning gave evidence that she wanted everything to be seen as “normal” within the Mantle team so as not to raise any suspicions.
The evidence specifically contradicted the submission. The submission should not have been made.
In submissions dated 23 November 2017 MR submitted that “what the police did is to be condemned and that they have misled the accused into acting in a particular way that can be used in evidence against them, and that that process by which that evidence was procured was unfair in a legal sense”.
It was submitted that each accused was “induced” into making admissions by conduct that he or she would “not have made but for the inherent legal unfairness in the investigatory technique.”
Although it is not entirely clear this submission appears to be an attack on the fairness of conducting an integrity test irrespective of any illegality in the conduct of the test. The submission is that the courts should not condone any integrity testing. While the submissions were made in relation to the general unfairness discretion the submission about inducement is redolent of an allegation of an admission that was not made voluntarily. Such a concept involves the exercise of a different discretion. I interpret the submission as only raising the general unfairness discretion.
I reject the submission. I have underlined the invalid assumption in the submission. The conduct of the police, leaving aside any question of illegality or improper behaviour, has not misled MR into acting in a particular way. All MR had to do was turn up at the scene and undertake his normal duties. That is, he was “misled” into turning up and behaving lawfully. He was not “misled” into abusing his public office and dishonestly handling property found at the scene, if those allegations can be proved.
Further he was not misled into making admissions by conduct. It is his conduct, in a general sense, if proved, which make up the elements of the offences rather than an admission to offences.
I reject the submissions.
MR submitted that the evidence was weak and not cogent. I accept that the evidence against MR may not be as strong as that against the others. I do not intend to set out the prosecution’s case against MR other than to say that I do not accept MR’s submission that evidence of the handling of the items and subsequent conversations is “unreliable”. I consider the evidence against MR is cogent.
As with the other accused I decline to exercise my discretions in favour of MR to exclude the evidence.
BR
I have already referred to the helpful submissions of Mr Fabbian in relation to the supposedly different factual position of BR compared with IM and MR. As discussed earlier, while accepting the factual difference, I consider that, in the context of s 4 of the CICO had a suspicion on reasonable grounds in relation to BR.
BR made a specific submission in relation to the “Approval” granted on 30 September 2014. BR highlighted that the application leading to the Approval contained a summary of the information obtained from Integrity Test 1.
I have already dealt with the argument relating to the question of renewal and extension. I do not understand this submission of BR to be advancing any different argument. I reject the submission for the reasons articulated earlier.
As with the other accused I decline to exercise my discretions in favour of BR to exclude the evidence.
IM
IM’s submissions adopted the submissions of other accused. Counsel for IM foreshadowed further submissions in relation to severance and separate trial applications.
I note that the prosecution case against IM is different to that of the other accused. He does not face any charges of “aid and abet”. He did not attend Test 1 and only briefly at Test 2 (for approximately 6 minutes at the end of the operation).
I have assessed the cogency of the evidence against IM. I find the evidence is cogent (subject to the application for severance and a separate trial).
IM further submitted that the general unfairness discretion should be exercised in his favour on a different basis to the other accused. He submitted that in effect the tests had not given him an opportunity to pass or fail (due to his limited attendance at only test 2) and therefore the evidence of the tests should be excluded due to the unfairness.
In the context of the case and given that the evidence against IM largely relates to conduct back in the Mantle team office I reject that submission.
As with the other accused I decline to exercise my discretions in favour of IM to exclude the evidence.