R v Osborne
[2003] TASSC 17
•16 April 2003
[2003] TASSC 17
CITATION: R v Osborne [2003] TASSC 17
PARTIES: R
v
OSBORNE, Andrew Kevin
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 249/2002
DELIVERED ON: 16 April 2003
DELIVERED AT: Burnie
HEARING DATES: 28, 31 March, 1, 4 April 2003
JUDGMENT OF: Slicer J
Criminal Law - Evidence - Judicial discretion to admit or exclude evidence - Evidence unfair to admit or improperly obtained - Generally - Abuse of process - Entrapment.
Evidence Act 2001 (Tas), s138.
Ridgeway v R (1995) 184 CLR 19, applied.
Aust Dig Criminal Law [423]
REPRESENTATION:
Counsel:
Crown: T J Ellis SC
Accused: G A Richardson
Solicitors:
Crown: Director of Public Prosecutions
Accused: G A Richardson
Judgment Number: [2003] TASSC 17
Number of Paragraphs: 49
Serial No 17/2003
File No 249/2002
THE QUEEN v ANDREW KEVIN OSBORNE
REASONS FOR JUDGMENT SLICER J
16 April 2003
The accused seeks the exclusion of the evidence of undercover officers who met with him on a number of occasions between July and December 2001. The evidence sought to be excluded comprises the officers' accounts of the conversations, recordings of some of three conversations and acts of sale on the part of the accused.
Mr Osborne has been indicted on four counts of selling a narcotic substance on 28 July, 9 August, 14 November and 7 December 2001, contrary to the Poisons Act, 1971 s47(1)(a), and each count relates to a sale to and purchase by an undercover operator.
The matter is to be determined prior to the empanelment of a jury, in accordance with the Criminal Code, s361A.
The accused contends that the evidence ought be excluded on three bases, namely:
(1)As a matter of public policy in that the officers acted outside of permitted procedures, conduct which ought not be sanctioned by the courts. Whilst the conduct might be lawful, its manner of execution was improper.
(2)The conduct of the operators was unlawful.
(3)The conduct itself was causative of the acts of sale in that "but for" that conduct a crime would not have occurred.
The contentions depend in part on the application of the principles stated in Ridgeway v R (1995) 184 CLR 19, and the statutory requirements of the Evidence Act 2001, s138 ("the Act"). Central to the resolution of those contentions are questions of credibility of witnesses and inferences to be drawn from statements and conduct.
General background
Mr Osborne had a prior history of commercial dealings with illicit drugs, in particular amphetamines. That history, and Mr Osborne personally, were known to officers of the Drug Investigation Service. An officer, Constable Walkden, was assigned to the collection and compilation of intelligence material concerning the suspected activities of Mr Osborne. Information is, as a matter of course, collected, recorded and allocated a reliability assessment code. Information is received from the observations and general reports of police officers, statements and hearsay material obtained from registered or known informants, material gleaned from formal interviews with other suspects and members of the public, both named and anonymous.
In mid-2001, Mr Osborne became a person of interest to the Drug Investigation Centre and special attention was paid to material touching his activities. Other persons believed to be associated with him in the commercial distribution of drugs were also subject to scrutiny. Constable Walkden was responsible for the co-ordination of the information, but remained subject to the supervision of a superior officer.
The information collated before the date of the first "controlled bag" on the part of the operatives and sale by the accused was considerable. Between 19 May 2000 and July 2001, some 10 entries were recorded which specifically related to events involving drugs directly concerning Mr Osborne. Those events included:
· supplying amphetamines to named persons;
· market area including attempts to widen the scale of operations;
· addresses at which amphetamines were sold by Mr Osborne and his partner, Tabatha Johnson;
· specific dates and acts of consumption, possession and supply of amphetamines.
· evidence of sales from the residence of the suspect, including details of the room inside the house in which the transactions were conducted.
A decision was made by senior officers of the Investigative and Investigation Support Services to introduce undercover operatives into the surveillance and investigation of the suspect. The Support Service was responsible for the use and operation of surveillance equipment and operational control of the undercover officers. The Investigation Service was responsible for the co-ordination of the operation and the collection and assessment of the information received. Thus two sets of senior officers were responsible for the overall operation. It could not be said that the methodology employed by the operatives was capricious or conducted in a manner not subject to scrutiny.
On 27 July 2001, two operatives, A and B, went to the home and introduced themselves as travellers who had heard that Mr Osborne could assist them in obtaining some amphetamine. Mr Osborne expressed interest but stated that the amount they wished to purchase was less than his own supplier would provide. The officers left and sought instructions from supervising officers who authorised them to purchase a larger amount. They returned to the home of the accused and reached agreement for the purchase of an amount of amphetamine for the price of $200. Later in the day, the accused delivered to the operatives amphetamines in a quantity apparently significantly less than that provided for in the purchase sum. Mobile telephone numbers were exchanged and the operatives left with a general statement of interest that further contact would be made.
Following contact on 7 August 2001, police sought and obtained a warrant from a magistrate in accordance with the Listening Devices Act 1991, s17. The operatives, equipped with surveillance devices, returned to the home of the accused on 9 August and a further transaction for the purchase of amphetamines for a price of $200 was completed.
Some phone contact was maintained between 9 August and 14 November 2001. On the latter date, operatives A and B again visited the home of the accused and more amphetamines purchased.
On 27 and 29 November, two telephone calls were made from a mobile phone, the registered number of which accorded with that provided by the accused, to the mobile phone of operative A. He returned the call on 30 November and after a general conversation concerning the quality and quantity of amphetamines, the operative indicated that an associate was interested in purchasing significant amounts of the drug. Shortly thereafter the accused left voice messages recorded on the mobile telephone of operative A. On 1 December, operative A returned the calls and spoke with the accused who indicated that he could supply a significant amount. Arrangements were made for a further meeting.
The meeting occurred at a Devonport hotel on 6 December, at which operatives A and B introduced operative C to the accused, Tabatha Johnson and a third associate. Arrangements were made for the purchase of amphetamine for a price of $600 which, after a confused delay, was delivered by the accused in the early hours of 7 December.
The conversations held during the meetings of 9 August and 6 - 7 December were recorded, with minor omissions, and the tapes of those recordings and transcripts tendered on the hearing.
The accused was arrested and charged in January 2002 with the crimes of selling a narcotic substance on 28 July, 9 August, 14 November and 7 December 2001, the occasion on which the operatives purchased amphetamine.
The accused, who gave evidence on the hearing, does not dispute the sales, nor the accuracy of the recordings of the conversations. He gave a different account of the unrecorded meeting of 28 July to that given by operative A and relied on some portion of the recorded conversation said to support the conclusion that he had been induced to supply the drugs by the importuning of the operatives, an act which he would not otherwise have done. His account is that he and his partner, Tabatha Johnson, who also gave evidence on the hearing, were amphetamine addicts who purchased drugs from another for their own use and it was only the improper conduct of the officers which led to the acts of sale.
General principles
The onus lies with the Crown to establish the admissibility of evidence, but it is for an accused to establish either contravention of Australian law or impropriety on the part of public officers. If breach of law or impropriety is established, then it is for the Crown to obtain a discretionary inclusion of the evidence within the ambit permitted by the Evidence Act. (R v Coulstock (1998) 99 A Crim R 143, R v Eade [2000] NSW CCA 369).
The Act, s138, relevantly provides:
"(1) Evidence that was obtained ¾
(a)improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law ¾
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning ¾
(a)did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b)made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account ¾
(a)the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and
(d)the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
…
(h)the difficulty, if any, of obtaining the evidence without impropriety or contravention of an Australian law."
As can be seen, the legislation provides wide scope for any examination of the admissibility of or discretionary exercise in the reception of evidence. The general principles are as stated in Ridgeway v R (supra) which, although not a decision dependent upon the legislation, affords a general statement of the relevant principles.
The decision in Ridgeway states three general principles, namely that:
(1)entrapment per se does not afford a substantive defence to criminal conduct;
(2)evidence obtained by means of "entrapment" procedures may be excluded where the commission of the crime was itself brought about by the conduct of officers of the state;
(3)evidence obtained during the course of "entrapment" procedures might be excluded when those procedures were themselves contrary to law or tainted by impropriety.
The third principle differs little from the approach taken in relation to the obtaining of evidence generally (Bunning v Cross (1978) 141 CLR 54), and in particular, confessional evidence (Cleland v R (1982) 151 CLR 1). Consideration of fairness, prejudice and non-approbation of improper conduct affecting social and legal norms are factors determinative of reception. The second, also grounded in public policy, is at one level recognition that no crime had in fact been committed, irrespective of the state of mind of the person charged, since the events were instituted and controlled by an instrumentality of the state which sanctioned the events said to have created criminal conduct.
Those issues can be identified:
(1)Whether, but for the involvement of an instrumentality of the state, a crime would have been committed?
In his judgment at Ridgeway (supra), at 53 - 54, Brennan J dealt with the issue of causation in the following manner:
"This result is manifestly unsatisfactory from the viewpoint of law enforcement. As a technique of law enforcement, the so-called 'controlled' importation of prohibited imports may be an acceptable technique for the detection and breaking up of drug rings but, if that be so, the law enforcement agencies must address their concerns to the parliament. So long as the unqualified terms of a s233B(1)(b) reveal the parliament's intention to prohibit all persons, including the law enforcement agencies, from importing heroin, it is not for the courts to encourage the Executive branch of government to sanction a deliberate course of contravention. The Executive branch of government cannot dispense its officers from the binding effect of the laws prescribed by the parliament. If law enforcement agencies apply for an amendment of the laws to permit the employment of detection methods such as those used in this case, it will be for the parliament to consider whether controls should be legislatively prescribed. The parliament might impose conditions upon the employment of those methods. The parliament might place responsibility for authorising the importation of prohibited imports for detection purposes upon specified officers who will be liable if they fail to exercise supervision over the operations of the law enforcement agencies. It is manifest that there will be anomalies, if not corruption, in the conduct of such operations in the absence of adequate supervision. But provisions of that kind cannot be prescribed by courts; they are appropriate matters for consideration by the parliament."
McHugh J, at 84, considered that:
"In my opinion, the public policy ground for excluding evidence that was recognised by this court in Bunning v Cross and later cases should not be applied when an accused person seeks to exclude evidence of a crime on the ground that he or she was induced to commit the crime by reason of the unlawful or improper conduct of law enforcement officials. The policy considerations that are applicable in such a case are not identical with the considerations that are applicable in a case where the crime was not induced by police misconduct. Moreover, the focus of the decision and the weight to be given to identical policy considerations differ in each case. In addition, the remedy of excluding evidence that falls within the Bunning v Cross discretion does not deal satisfactorily with all the problems that arise when the conduct of law enforcement officials induces or results in the commission of criminal offences."
and, at 92, summarised the test as:
"(1)Whether conduct of the law enforcement authorities induced the offence.
(2)Whether, in proffering the inducement, the authorities had reasonable grounds for suspecting that the accused was likely to commit the particular offence or one that was similar to that offence or were acting in the course of a bona fide investigation of offences of a kind similar to that with which the accused has been charged.
(3)Whether, prior to the inducement, the accused had the intention of committing the offence or a similar offence if an opportunity arose.
(4)Whether the offence was induced as the result of persistent importunity, threats, deceit, offers of rewards or other inducements that would not ordinarily be associated with the commission of the offence or a similar offence."
Toohey J regarded the deliberate conduct of the police as a significant matter in any balancing assessment when he stated, at 64:
"In considering the exercise of the discretion, 'two competing requirements of public policy' are involved. Those requirements are, on the one hand, that a wrongdoer be convicted and, on the other, that the courts should not be seen to lend approval to unlawful conduct on the part of law enforcement authorities. In the present case the evidence of importation of the heroin, which was an essential element of the charge against the appellant, was of an importation arranged by police officers in contravention of the Customs Act. The actions of the police officers were a deliberate breach of the Act, designed to produce that element.
There is a distinction between causation and "a situation in which police provided an opportunity for an offence to be committed" Toohey J, at 57. Causation might be an issue where all of the principal conduct occurred at the hands of possible officers and a person became involved in a peripheral sense. Gaudron J, at 78, approached the question of causation in the following manner:
"The question whether an accused would not have committed the offence charged if law enforcement agents had not in some way incited or participated in its commission is a question of causation. It may be that, in some cases, it is more accurately described as a question of the causative influence of an inducement. But however it is described, it is a question to be decided as a matter of common sense and experience, not by some hard and fast test which focuses on the disposition of the accused. Of course, disposition will be relevant in some cases, but even then, it may not be decisive. And in some cases - the present case is one - disposition may be of no relevance at all."
In all reasons for judgment where the issue of causation is discussed, it is focused on "abuse of process", namely conduct intended to bring about a consequence, namely the use of court process to punish someone believed generally to be guilty of criminal conduct but against whom it has been impossible to safely prefer charges. The surrounding circumstances required to achieve this finding of abuse of process would have to be extreme.
It may be that the provisions of the Act, s138, contain wider tests (R v Salem (CC NSW) unreported, 3 October 1997), R v Keran (CA NSW), unreported, 21 November 1995), but if so, the legislative provisions reinforce an evidentiary rather than a substantive approach. Causation might show greater involvement, hence greater impropriety on the part of the law enforcement orders and the level of causative effect might be a guide to the assessment of that impropriety, but in its own right the issue of causation is not determinative of the outcome.
Lawfulness of conduct
The undercover operatives were engaged in unlawful conduct. They purchased an illegal substance and might even be said to have instigated another to possess for sale. Parliament has acknowledged the need for law enforcement officers to engage in forms of illicit conduct in its enactment of the Poisons Act, s91, which relevantly provides:
"No act, matter, or thing done … in good faith by … any police officer … in the administration … of this Act, or in the exercise or performance … of any of his or its powers, functions, or duties under this Act, subjects the … police officer … to any liability (whether civil or criminal) in respect of that act, matter, or thing."
The appellant suggests that the provision operates as a form of indemnity rather than an exclusion from the operation of the criminal law. The operative words are "subject … to any liability". In its consideration of the question of whether "entrapment" afforded a substantive defence (ie, it operated so as to exclude the application of the criminal liability, the High Court distinguished the question from the operation of duress and insanity which excluded liability. In those cases there was no liability under criminal law. That is the approach apposite to the legislative provision. The issue was considered by the Victorian Court of Appeal in R v Te [1998] 3 VR 566, which concerned the provisions of the Drugs Poisons and Controlled Substances Act 1981 (Vic), s51. Although stated in different legislative terms, the Victorian provision is comparable.
The Victorian legislation provides that:
"No member of the police force … acting under instructions … shall be deemed to be an offender or accomplice in the commission of an offence …"
In his reasons for judgment, Phillips JA relied on the decision of Coco v R (1994) 179 CLR 427, held that the legislative enactment operated to give immunity to the officers from a claim that they were active participants in the criminal activity.
In this case, the officers were subject to the direction of superior officers and as of August 2001 were acting in accordance with a warrant issued by a judicial officer. In their joint judgment, Ridgeway v R (supra) at 37, Mason CJ, Deane and Dawson JJ addressed the question in the following terms:
"The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity. It is neither practicable nor desirable to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community. A finding that law enforcement officers have engaged in such clearly improper conduct will not, of course, suffice of itself to give rise to the discretion to exclude evidence of the alleged offences or of an element of it. As with the case of illegal conduct, the discretion will only arise if the conduct has procured the commission of the offence with which the accused is charged."
In this case, the officers were acting within the scope of their duty and protected in the execution of that duty by an enactment of Parliament. They were not acting "in contravention of Australian law" as provided for by the Act, s138(1)(a).
Findings of fact
Before consideration can be given to the issues of impropriety and causative effect, it is first necessary to determine their factual basis.
The accused does not take issue in substance with the accuracy of the recordings of conversations and transactions. He seeks to rely on the events at the initial meeting (unrecorded) as tainting the subsequent material and showing that his later enthusiasm was a product of passivity or acceptance and a desire to show himself to be more important than he was.
The indictment alleges not conspiracy or trafficking, but four acts of selling a narcotic substance. Three of those acts occurred after a warrant had been granted and two of the acts were the subject of recorded evidence. There is no suggestion of impropriety in those recorded conversations. Even if a finding of inducement or impropriety was made in relation to the meeting (unrecorded) on 28 July, it does not follow that such would impact adversely on the subsequent evidence.
The accused gave evidence and called Tabatha Johnson as a witness on the hearing. Some nine hours of recorded material was tendered in evidence and it is not necessary to make findings on all of the matters raised by the evidence. However, neither the accused nor his partner are accepted as credible or reliable witnesses. Their accounts were materially inconsistent, conflicted with other established evidence and had the characteristics of self-serving reconstruction.
The police operatives were acting out a role. At the first meeting they stated the origin of their belief that the accused could supply them with amphetamines. The accused immediately indicated that such was possible. Following discussion about quantity, the officers left and sought authority to engage in a higher level of purchase. They waited at the accused's premises while he left to obtain the amphetamine and delivered it upon his return. Even if the accused felt that he was being importuned, it was open for him, upon return, to claim that he was unsuccessful. On his own account he did not.
The accused and his partner gave a different account. Both claimed to be drug addicts who purchased amphetamine solely for their own use. Each said that the initial invitation to the operatives was for the purpose of ascertaining the source of unfounded rumours that they were engaged in the distribution of an illicit substance. The accused claimed that he had been hesitant in responding to the request and was a reluctant participant because of the importuning of the officers. Ms Johnson said that she and the accused repeatedly denied involvement in the selling of amphetamine and that both attempted to "throw the requests off". Their account is rejected. The subsequent exchanges as recorded indicate a different response. The exchanges were friendly and enthusiastic. They evidence a detailed knowledge of commercial involvement, quality and quantity of amphetamine and a preparedness to obtain the substance. The methodology employed in leaving the premises to obtain the substance, its obtaining at short notice, and the stated preparedness to obtain future supplies and its delivery at differing places belie the claim of innocent and unfortunate involvement caused through passivity by the importuning of others. The evidence of the accused in explaining the various items recorded in the intelligence précis or data base was inventive, self-serving and internally inconsistent.
The evidence of operative A as to the events and conversations of 28 July are accepted in their entirety. That the request of the operatives and their surrounding narratives were contrivances are not in issue. They came within the accepted norms of investigative procedures. There was no impropriety in the events of 28 July and no reason to exclude the evidence.
The remaining evidence speaks for itself. The conversations were far ranging and, at times, indiscreet. Not all of the material ought be led before a jury because it pertains to other matters and could be excluded as unduly prejudicial. But that evidence which relates to the transactions giving rise to the counts in the indictment, while prejudicial in that it is supportive of guilt, is not tainted by impropriety and ought be received. The accused was friendly, relaxed, boastful and showed a willingness to accommodate the requests of the operatives. His provision of the mobile telephone number, his willingness to seek out marijuana and his agreement to meet with operative C illustrates not the response of a reluctant victim, but of a person ready to sell amphetamines to persons previously or recently unknown.
Causation and impropriety
Conduct which causes criminal conduct might well, because it is disproportionate, amount to evidence of a high level of impropriety because of threats, inducements or unacceptable subterfuge. Conduct performed outside of proper protective controls or untrammelled by adequate protocols or supervision might lead to a response by the suspect produced by such threats and the like. Yet causation remains linked to the question of propriety. Police Standing Orders 5.9.1.1 and 5.9.1.2 currently in force provide for procedures to be followed in applications for the use of listening devices. They require compliance with statutory provisions and the level of authorisation required for their use. Procedures are stated for evidence on procedural matters associated with their use to be provided by a detective inspector or other member of the ISS. Order 5.9.4 provides for procedures associated with covert policing and the level of authorisation, supervision and restrictions on use to trained and designated (verifiable by register) operatives. The standing orders have the status as stated by Crisp J in R v Deverell [1969] Tas R 106.
Operative A stated in evidence that there were departmental protocols governing "how far and what an undercover officer should do on making an enquiry [sic] and obtaining a sell [sic] from the suspect and that:
"Those parameters are set by the controller who oversees the undercover operatives. And they're basically to go and ask and if you receive a no then leave."
The accused claimed that he had refused the request outright, but that evidence is not accepted. However, it is clear that on occasions the accused indicated that he had retired as a "dealer" and did not wish to take up dealing again. That evidence is accepted.
The evidence favourable to the accused is that on the first meeting he indicated that he "did not wish to take up dealership again". In the recording of the conversation of 9 August, the accused is heard to say:
" … especially when I'm not doing it?? I'm not dealing. 'm doing it for favours? I'd be making two or three hundred dollars out of ?? I'm not doing it."
and:
"You cannot go any further up the ladder. And it makes me jittery at that time when you deal with the man? Like he's looking at me like ?? come out. I'm not coming out of retirement now after the shit that we've ?? Al the fucking scum can go to fucking hell cos I don't …"
"I mean that's the same. I'm not doing any of it for the money."
and at the meeting on 6 December when the following exchange between the accused and one of the operatives:
"RS: Right. You obviously want a little bit for helping me out.
AO: Yeah … I'm easy I mean.
RS: Ah. Eh …
AO: I like breaking rules. I'd do it for nothing if I could."
The extracts must be seen in context. In other passages the accused provides ample evidence supportive of current commercial dealings. One interpretation could be that he was referring to "high level" dealing and was not prepared to work except on an "ad hoc" basis commensurate with his needs. Even accepting the contrary statements as bravado, it does not follow that the above statements evidence impropriety on the part of the officers. Their conduct was not causative of his sale to the officers other than that they approached him, made a request and gave money which resulted in sale. The fact, if accepted, that he sold, on only opportunistic occasions and did so only to support his habit, would not impact on the issue stated in each count of the indictment that he sold amphetamine. The evidence relates to four transactions, not to a general count of conspiracy or trafficking.
Discretion
If my conclusions as to the lawfulness of the conduct of the police officer be wrong and offends the provisions of the Act, s38(1)(a), then I would, nevertheless, exercise discretion and have it received into evidence (the Act, ss136, 137, 138(2)). The reasons permitting the exercise of a discretion in favour of the prosecution are:
(1)The purchases by the operatives were controlled by senior officers and complied with established procedures and comprised but portion of the interest of law enforcement officers in the conduct of the accused.
(2)The prior conviction of the accused for the crime of trafficking in a narcotic substance.
(3)The evidence is highly probative and at least the recorded material conveys information directly stated by the accused. Prejudice because of their content is caused by the conduct and statements of the accused himself.
(4)There is no evidence of coercion, threats, inducements or untoward pressure.
(5)The nature of the conduct alleged, the difficulty in its detection and the recognised need for covert investigation.
(6)Any illegality was of minor import and not that caused by reckless indifference, disdain for legal requirements or vindictiveness or a product of violent or unwarranted deceptive conduct.
Conclusion
The evidence is admissible and in the exercise of discretion ought be received on the trial.
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