R v Quoc Kinh Phung
[2001] VSCA 195
•1 November 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 148 of 2000
| THE QUEEN |
| v. |
| QUOC KINH PHUNG |
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JUDGES: | ORMISTON, CALLAWAY and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 September 2001 | |
DATE OF JUDGMENT: | 1 November 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 195 | |
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CRIMINAL LAW – Trafficking in heroin – Authorities or “immunities” given to two police covert operatives pursuant to s.51 of the Drugs, Poisons & Controlled Substances Act 1981 “in respect to the particular case of Operation Quins” – Whether validly given – Alleged want of particularity – Application of R. v. Te [1978] 3 V.R. 566.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr G. Nash, Q.C. and Mr L. Thompson | Kuek & Associates |
ORMISTON, J.A.:
The applicant, who seeks leave to appeal against his conviction on one count[1] of trafficking in a drug of dependence, namely heroin, has relied in argument on only the first of nine grounds of appeal, to the effect that the learned trial judge erred in finding that two written authorities or “immunities” given pursuant to s.51 of the Drugs, Poisons and Controlled Substances Act 1981 were valid. The immunities in question were granted to two police “covert operatives”, as they are inelegantly called, in terms almost identical to the immunity similarly granted to another such “operative” considered by this Court in R. v. Te[2]. Although special leave to appeal to the High Court was refused in that case[3], it has been argued that that Court left open the question whether this Court had correctly interpreted s.51 and the relevant written immunity.
[1]The applicant was also arraigned on one count of possession of a drug of dependence, namely cannabis, to which he pleaded guilty and was in due course fined $50 by the trial judge. No issue presently arises as to that count.
[2][1998] 3 V.R. 566.
[3]Te v. The Queen, 11 September 1998, unreported.
In the present case the applicant was found guilty on 31 May 2000. He had also been found guilty on 10 February 1999 at an earlier trial at which he had been unrepresented, but that verdict had been set aside by this Court on 1 December 1999, for reasons related to the failure to assign legal assistance to him pursuant to s.360A of the Crimes Act 1958, and a retrial had been ordered.[4] On the trafficking count, after a trial during which the validity of the two immunities was unsuccessfully challenged before the jury was empanelled, he was found guilty by the jury on count one. The applicant, having admitted 46 prior convictions from fifteen court appearances, was sentenced on that count to be imprisoned for five years, of which it was directed that he serve three years before becoming eligible for parole.
[4]See [1999] 3 V.R. 313.
In the circumstances it is necessary only to give an outline of the evidence leading to the applicant’s conviction.
The relevant count alleged that the applicant had trafficked in heroin between 17 September 1996 and 22 November 1996. The Crown case was that the relevant police “covert operatives” had had numerous conversations with the applicant and met him on seven occasions, all for the purpose of dealing in heroin. In the course of those meetings they paid to him a total of $27,100 and obtained from him 44.43 grams of pure heroin.
“Graham Brown” and “Dee Peters” were the assumed names of the two police “covert operatives”. In the relevant dealings it was said that they were both acting pursuant to written authorities under s.51 which were directed to them individually and signed by Detective Senior Sergeant Blayney and dated, in the case of “Brown”, 16 September 1996 and, in the case of “Peters”, 19 September 1996. Each took this form:
“I John Joseph BLAYNEY being a member of the police force not below the rank of senior sergeant and pursuant to s.51 of the Drugs, Poisons and Controlled Substances Act, 1981, do hereby authorise and instruct you to carry out all enquiries and obtain all the necessary evidence which indicated the commission of any offence against the Drugs, Poisons and Controlled Substances Act, 1981, in respect to the particular case of Operation Quins.”
Apart from the names of the authorising officer and of the operation, the authority was, with one minor exception, in identical terms to that considered by this Court in Te[5]. So far as can be gathered Operation Quins was a police investigation into the drug trafficking activities of a number of persons connected with one Diep.[6]
[5][1998] 3 V.R. 566 at 571. Here the past tense of the verb “indicated” was used in the authority, whereas in Te it was in the present tense, “indicates”.
[6]There was no voir dire in relation to the applicant’s contention that these authorities were illegal or should otherwise lead to the staying of the proceedings, so that any information as to the particular operation came incidentally in the course of the trial when questions were directed to other issues. I do not, however, understand that there was any suggestion that there was no such investigation or that the applicant had no connection with Diep, for at least the last transaction relied upon by the prosecution at the trial involved the direct participation of Diep.
Operations Quins was an investigation commenced by the Drug Squad. “Brown” was assigned to meet with a drug dealer and through numerous transactions moved up through the hierarchy of his particular cabal. He purported to act as a mid-level trafficker for profit and said to various persons that he was willing to purchase heroin in quantities ranging from seven grams to two ounces. “Peters” also gave evidence of her lesser participation in some of the transactions.
Some further brief details of the Crown case are necessary, for it was said that the prosecution was largely dependent on the evidence of “Brown” and “Peters”, without which it would have been doomed to failure. Of course, the applicant’s argument went further inasmuch as it said that the setting up of the transactions by “Brown” should have resulted at the least in the staying of the proceedings on the bases discussed by the High Court in Ridgeway v. The Queen[7]. “Brown” gave evidence to the jury in respect to his experience as a “covert operative” and his familiarity with the drug culture, in particular as to the use by those involved of generic and specific terms to describe drugs and dealings in them and as to the manner in which deals were made by drug traffickers and users.
[7](1995) 184 C.L.R. 19.
As to specific incidents, it is necessary only to give three examples of the manner in which the “operatives” participated in the alleged transactions which made up the trafficking. On 17 September 1996 “Brown”, in the company of a person known as Mario, attended a Housing Commission complex in Kensington. Mario went inside and returned with the applicant, whom he introduced as Johnny. “Brown” had a conversation with the applicant, obtaining a phone number so that he could call the applicant to purchase drugs. On 20 September 1996 “Brown”, having been provided with sufficient money by a detective senior constable, telephoned the applicant at the number given to him. “Brown” was told to go to the block of flats and call when he had arrived. He then drove with “Peters” to the flats and made the phone call. He was then directed to go to a milk bar in Racecourse Road, Flemington where shortly afterwards they were joined by the applicant. They followed him up the staircase of the flats to the second floor where they had a conversation which was covertly taped by “Brown”. In the conversation “Brown” negotiated the purchase from the applicant of some seven grams of heroin at a price of $3,100. “Brown” and “Peters” paid that sum to the applicant and in return received a small package wrapped in plastic which contained 6.50 grams of powder which when analysed amounted to 5.01 grams of pure heroin.
After two abortive attempts on 9 and 15 October to effectuate a purchase by means of negotiations at the milk bar, “Brown” had greater success the following day, 16 October 1996. He received a phone call from the applicant offering 14 grams. “Peters” obtained $6,000 from another police officer so that “Brown” was able to call the applicant later by phone. Again they were directed to go to the milk bar and from there to the second floor of the Housing Commission flats. The covertly recorded conversation evidenced the completion of the transaction by “Peters” handing the applicant $6,000 in return for a black package containing 13.47 grams of white powder which was analysed to contain 5.12 grams of pure heroin. Further negotiations took place during the latter part of October during which some small samples were supplied by the applicant.
The final transaction took place on 22 November 1996. “Brown” and “Peters” again met the applicant in Racecourse Road but on this occasion drove to St. Albans. The transaction discussed was on this occasion considerably greater and “Brown” and “Peters” had some $18,000 available to complete it. After showing the applicant the money they parked in a street while two vehicles arrived from which some seven to nine men alighted including Diep. Part of the money was handed to Diep and the remainder to the applicant, in return for which a number of packages were received with 55.14 grams of powder later analysed to amount to 34.30 grams of pure heroin. Other than as to the cannabis found in his flat, the applicant made no admissions.
At his second trial the question of the construction of legality of the two authorities was raised before the jury was chosen. As I have said, there was no voir dire but brief references were made to some of the evidence given at the committal proceedings. In particular counsel referred to an answer given by “Brown” when asked what were the names of the targets which were detailed to him at the time of the initial briefing, to which he had said that, as far as he could recall, there was only one target who was Diep. Moreover, he said that at that time he was not aware of the name of the applicant. He was also asked about the names of those to whom he reported and who coordinated their activities, to which he had stated that he believed it was Detective Sergeant Collins of the Covert Investigation Unit. However, he said that they usually worked under the direction of investigators from the Drug Squad. Likewise he was asked whether there was a series of photos put together so that they might identify the proposed targets of the operations. He had seen photos at briefings and could remember a photo of Mr Diep at the outset. He added: “Once the operation had commenced I saw a photo of Mr Phung”.
The argument then presented to the learned trial judge only in part seemed to recognise the authority of Te. It was said that the basis for the judge’s holding the authorities in this case to be invalid or ineffective was one which appeared not to have been advanced in argument in Te. Counsel asserted that “in relation to a particular case” an authority is required to refer to a particular or nominated target such as Diep was in the present case, as the name of the person suspected and then being investigated. If others subsequently became suspected in the course of the investigation, then he said a further authority would be required in relation to those persons, in order that the relevant member of the police force should obtain immunity under s.51. He argued that “the particular case” referred to a person or persons, because of the expression at the end of the section which characterised a person receiving an authority as one who “might but for this section have been deemed to be such an offender or accomplice”. He therefore contended that, as the authorities here were not so confined, the evidence that the recipients gave would have been illegally obtained and it should have been excluded on the basis of public policy.
The learned judge rejected those submissions on behalf of the applicant and gave his reasons two days later. In substance, he noted the contention that any findings that the authorities were illegal or otherwise ineffective should lead to their evidence being ruled inadmissible, but he said that the decision in Te was directly in point, and he rejected a submission that it had been incorrectly decided. In particular, he rejected the contention that a nominated suspect had to be the subject of each authority as being largely impractical. He therefore ruled the evidence of both “Brown” and “Peters” as admissible in relation to their activities in the course of the investigation.
The applicant’s arguments were repeated in this Court but in somewhat more elaborate terms. In particular it was said the case of Te should not now be followed in that it was erroneously decided. Counsel conceded before us that the facts were similar and that the Court might therefore find itself bound by the ratio expressed by the Court in that case, but that, if it were inclined to reach that conclusion, the application should be adjourned so as to permit the application to be referred to a Full Bench of this Court for the purpose of overruling Te. For reasons which I shall now examine I do not think that either course should be followed. Not only do I think that Te was correctly decided and applies here, but I do not think there is sufficient doubt about its correctness, applying the relevant tests for this purpose, to justify a reference to a Court of five judges. Moreover, even if I were wrong in this view, the circumstances surrounding the obtaining of the authorities in the present case, especially the current understanding of the law as expressed both in Te and in the earlier decision of R. v. Papoulias[8], were such as to make it almost impossible to conclude that any resulting illegality ought to result in the exclusion of the relevant evidence, having regard to the principles laid down in the High Court in cases such as The Queen v. Ireland[9] and Bunning v. Cross[10].
[8][1988] V.R. 858.
[9](1970) 126 C.L.R. 321.
[10](1978) 141 C.L.R. 54. See also Ridgeway v. The Queen (1995) 184 C.L.R. 19 and cf. R. v. Nicholas (2000) 1 V.R. 356 at 389 para. [95].
The issue is essentially one as to the proper interpretation of s.51 of the Drugs, Poisons and Controlled Substances Act 1981 which was and is expressed in these terms:
“No member of the police force or person if the member or person is acting under instructions given in writing in relation to a particular case by a member of the police force not below the rank of senior sergeant shall be deemed to be an offender or accomplice in the commission of an offence against this Act although that first-mentioned member or person might but for this section have been deemed to be such an offender or accomplice.”
In essence it is said that neither of the authorities here in question sufficiently defined the “instructions given … in relation to a particular case”, because they were too generally expressed and because the reference to the “case of Operation Quins” referred to no specific case, inasmuch as it failed to define the prosecution or investigation of a particular person or persons.
For this purpose the applicant raised a series of points in order to show that the authorities did not conform with the section and were therefore illegal, but it must be said that explicitly or implicitly each of these was rejected by this Court in Te. In the first place it was said that, as the executive cannot dispense its servants or officers from obeying a law made by Parliament and as the section purports to give power to commit a breach of the law, they should be read strictly. Next it was said that the authorities did not and should not be taken as authorising the commission of offences such as the ones which led to the conviction of the applicants. Thirdly it was said that in its form each authority permitted a sub-delegation of the power contained in s.51 inasmuch as they were non-specific and that therefore the two police officers would be subject to further instruction as to particular acts, including committing or otherwise participating in what otherwise would be offences, without appropriate and specific authority. Next they were bad, so it was contended, because they did not descend into sufficient particularity as to the types of offences which might be committed for the stated purpose. Fifthly it was said that, except for the reference to s.51, the authorities could be read as merely a straight job allocation, again without adequate identification of the particular acts authorised. Sixthly it was said that on its face each left the police officer at large as to what offences that officer might commit. Finally it was said that “Operation Quins” was not a “particular case”; it was not a case at all, rather it was an investigation.
As I have said, arguments along these lines, though not necessarily expressed in these terms, were rejected by this Court in Te, to which I shall return, but there was one matter which it was said was new and had not been examined there. Counsel said that the decision of the High Court in A. v. Hayden[11] had not been raised before the Court in Te. However, although there were some statements of general principle in Hayden, it was a civil case relating to quite different behaviour. It was and is a well-known case but it said nothing so far as the criminal law was concerned which has not been expressed in fundamentally similar terms in other more recent decisions of the High Court, and in particular in two where similar issues were considered, namely Coco v. The Queen[12] and Ridgeway, where in fact Hayden is discussed on a number of occasions.[13] It is most unlikely that the members of this Court in Te had not seen and understood those references to Hayden when considering the effect and authority of Ridgeway.
[11](1984) 156 C.L.R. 532.
[12](1994) 179 C.L.R. 427.
[13]See at 29, 30, 54, 59, 73 and 81.
The primary argument however, was that s.51 purports to give a right or power to do that which is otherwise illegal, in particular for present purposes to participate in the trafficking of proscribed drugs, and therefore should be read strictly. So it was contended, in terms which were in no way disputed, that it was fundamental that the executive cannot dispense its servants from obedience to the law including any law made by Parliament: see Hayden[14] and Ridgeway[15]. Therefore it was argued that, where Parliament purports either to “restrict the ambit of laws” or to exclude specified persons from their operation, legislation of this kind should be construed strictly and for this purpose Ridgeway was again called in aid.[16] As s.51 was ambiguous in its terms, so it was argued, it should be construed narrowly so as to render the authorities in the present case illegal or at least ineffective. So, moreover, it was said to be similar to legislation which authorises the breach of another person’s rights and thereby to do that which was otherwise contrary to law, such as the legislation relating to listening devices which was read down by the High Court in Coco.
[14]At 562 and 580-581.
[15]Passim.
[16]Especially the passage in the judgment of Brennan, J. at 54.
Of this argument and of legislation of this kind, Phillips, J.A. (with whom Tadgell and Kenny, JJ.A. concurred) said the following:[17]
“Such legislation, which is concerned to confer a power on some person or body to authorise specific conduct which otherwise would be unlawful, will be strictly construed. Section 51 is different. It does not confer a power; rather, it confers immunity.”
His Honour then proceeded to explain this by stating that s.51 “tackled the problem from quite the opposite end”, in that Parliament had not legislated to enable the authorising of conduct which would be otherwise unlawful. Instead it had conferred immunity on those who participate in covert operations of the kind which would have amounted otherwise to criminal conduct proscribed by the very statute here in issue.
[17]At 572.
Criticism was made of the distinction between the terms “power” and “immunity” as used by his Honour. What his Honour was intending to point out, however, so I believe, was that the legislation here in question was not purporting to give a power to infringe anybody’s rights either at common law or given by statute; it has chosen only to state, in advance, that certain specifically authorised acts which would otherwise be unlawful by virtue of the legislation are not to be treated as breaches of the statute. This was not legislation which purported to give the applicant or any other persons engaged in trafficking or drug dealing or the like specific rights, powers or immunities for its object was to render those activities illegal and subject to prosecution, nor were his common law rights, powers or immunities affected. In dealing with the interpretation of legislation one must be cautious about the use of presumptions if the purpose and meaning of the relevant provision is otherwise tolerably clear. The principle principally relied upon as to dispensing Crown servants from obedience to law is not strictly a principle of interpretation at all; certainly it was nowhere so described in the cases relied upon by the parties to this appeal.[18] It is primarily a doctrine relating to the proper constraints placed on executive action.
[18]The respondent also drew attention to R. v. Clegg [1995] 1 A.C. 482 and Yip Chui-Cheng v. R. [1995] 1 A.C. 111.
Counsel sought to contend that the passage in the judgment of Brennan, J. in Ridgeway[19] stated that legislation of this kind should be construed strictly, but that is not what was said. What was said was a reiteration in forceful terms of the principle restraining executive power, but then its potential operation was made subject to the qualification that Parliament may, if it choses, authorise dispensations from the effect of laws passed by Parliament in such terms as it selects.
[19]At 54.
One should, of course, be cautious to ascertain precisely what Parliament authorises in that regard, but what one is here concerned with, on the face of the matter, is immunity from prosecution for certain acts which would otherwise amount to offences laid down by statute. Cases such as Coco, however, lay down rules for the interpretation of statutes which seek to authorise the infringement of other people’s rights. As was said in that case by Mason, C.J., Brennan, Gaudron and McHugh, JJ[20]:
“The insistence on express authorisation of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms and immunities, but has also determined upon abrogation or curtailment of them. The Court should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language.”
Those words are clear and have frequently been applied[21], but the High Court was there concerned with powers given under warrants or the like to infringe basic common law rights[22]. No such power was here given, nor do I understand the section to be intended to give a power of that kind. It is conceivable that such an interference with a person’s rights, powers and immunities could be effectuated by the granting of an immunity, i.e. an immunity from suit, but that was not the kind of immunity with which Phillips, J.A. was concerned. He was characterising properly the legal effects of an authority given under the section. All that such authorities purport to do is, in advance, to render immune from prosecution under the relevant legislation persons who act pursuant to authorities given under the section. They are taken outside the intended operation of the statute which would otherwise impose criminal liability upon them. It is not here necessary to consider an immunity given under some other statute which might at the same time give rise to the infringement of some corresponding right in an individual, but on the face of it the problem would be essentially one of statutory interpretation. The benefits to be given to an individual could be no greater than those intended upon a reading of the statute as a whole.
[20]179 C.L.R. at 437.
[21]See e.g. Nicholas at 378-389 esp. at 385.
[22]It is here unnecessary to examine whether the same principle applies to rights given pursuant to statute, in particular the same statute.
What I have just said does not mean that an ill drawn piece of paper can give carte blanche to a police officer purporting to act under it. The section must be properly construed and it is not to be assumed that it intends lightly to give power to police officers to commit offences. But it is not lightly intended, for the object is serious and clear: it is a means of effectively tracking down and bringing to justice those who would commit offences under the statute.
The question therefore is whether the authorities here in question come within what was intended by Parliament as proper means of bringing offenders to book. What I have so far said is, I believe, sufficient to deal with the first two points taken in the argument addressed on behalf of the applicant.
The next group of objections raised on behalf of the applicant may likewise be taken together. In essence they said that the authorities here given were not expressed in sufficiently specific terms and, in particular, did not authorise the two officers to participate in the events which led to the trafficking here charged. If it were correct to say that the reference to “Operation Quins” was insufficient, then it might have been contended that the kind of offences authorised were left open by the authorities and that their form involved a form of sub-delegation either to the two officers themselves or to some other unnamed officers. To my way of thinking that approach to the construction of the section and the authorities cannot be accepted, as the judgment of Phillips, J.A. in Te demonstrated. As was there pointed out[23] the section contemplated only that “instructions” should be given in relation to a particular case and that word was not intended, nor could it be thought to have been intended, to require that the specific offences which the officer might commit should be set out in the authority, inasmuch as that “conduct … could be very difficult to identify satisfactorily in advance, given the nature and extent of covert operations of the kind that took place” in circumstances such as the present. As his Honour continued[24]: “… how could the document be so specific? At what point was it known here what the next step would be in the undercover operation, so precisely as to make it possible, let alone practicable, to seek in advance authorisation for some particular act or acts involving an offence?”
[23]At 572.
[24]Ibid.
As was there pointed out, it would have been impracticable to ask that each particular stage of an enquiry and each particular potential offence should be the subject of a separate piece of paper. Not only would that put in jeopardy the whole operation, and the individuals to whom these authorities were addressed, but it would also slow down the whole operation to a level to where the authorities would be largely pointless. “What was needed here was not authority to do some specific, identifiable act but immunity from prosecution if the undercover operations were to proceed; for obviously the participation by investigators in criminal conduct (and of the type that could not be wholly foreseen) was of the essence of the scheme.”[25]
[25]Per Phillips, J.A. at 573.
Of course the argument sought to maintain that a “particular case” in the section must refer to the case of an individual suspect rather than an operation (by way of investigation) which was the subject of the authorities in both Te and the present case. I cannot accept that that is so, and it is clearly contrary to what was held by this Court in Te. As was pointed out in Te, the word “particular” varies in its meaning according to its context.[26] One may contrast the present expression with the use of the expression “a particular person” which must be the subject of a warrant given pursuant to s.219B of the Customs Act 1901 (Cth) and which was held to require the identification of an individual in R. v. Nicholas[27]. The section appears in a statute relating to the prosecution of drug offences[28], so that the likelihood of all relevant individuals being known at the time an authority was being given would be remote, to say the least. Of course an individual was suspected in the present case, so that it was suggested that he could have been named and likewise new suspects could be the subject of new authorities. That seems to be highly artificial and impractical, for the obtaining of the necessary evidence, even the case of Mr Diep, would almost certainly bring the officers into contact with others involved in trafficking in order to obtain the necessary evidence and in many cases they would only become known as the offences were being committed. Experience shows, as did the evidence in this case, that the provision of drugs to traffickers and thence down the line often involves the participation in one way or another of a number of people at either the same time or in the course of a relatively short period leading to the commission of the particular offence. It would be strange to have authorities which would be effective so far as dealing with individual “A” was concerned, but ineffective to give immunity if previously unknown individuals “B” or “C” participated at the critical time. No doubt “Operation Quins” could have been otherwise described in terms of “an investigation into drug trafficking by Diep and others connected with him for that purpose”, but the shorthand used here, as in Te, was perfectly clear and I see no objection to it.
[26]At 573.
[27](2000) 1 V.R. 356 at 381-382 para [78] and at 388-389 para [94].
[28]Its forebears (see below) appeared primarily in statutes relating to gaming offences and so similar considerations applied: see R. v. Papoulias [1988] V.R. 858 at 861-862. See also Te at 571.
If one reaches this conclusion as to the sufficiency of the description of the case as an “operation”, then it is difficult to see that any question of sub-delegation can truly be raised. The two officers were given instructions to do that which was necessary in relation to that operation. Those instructions were concerned with the gathering of relevant evidence relating to the prosecution of those under investigation, including those who might commit offences in the future. Precisely what would be required to be done would vary from day to day, for in circumstances such as these those involved in the investigation would be largely reacting to what was being done or would be done by those under investigation. Nevertheless the authorities here given were sufficient to authorise the participation of the two officers in the manner described earlier in this judgment.
I turn to one final matter which arose in the course of argument. In referring to the form of the section, some mention was made of its history which, as noted above, first appeared in the present legislation in a form which derived almost precisely from a section appearing in the Summary Offences Act 1966. Each deal with what are commonly described as “victimless” offences, although it would be a travesty of language so to describe the offences here under investigation. Nevertheless they are offences which, when committed, are unlikely to result in any of those affected making complaint, so that it is seen to be necessary to have police officers pretending to participate in transactions in order to get the requisite evidence. The relevant section here has been unchanged since its introduction in 1981. Nevertheless the section which is said on all sides to have been its source, namely s.58 of the Summary Offences Act 1966, has had a history upon which the applicant placed some reliance. It may be traced back to the Police Offences Acts of 1912, 1915, 1928, 1957 and 1958 and further back to s.60 of the Lotteries Gaming and Betting Act 1906.[29] For many years the earlier section took a form similar to that contained in s.192 of the Police Offences Act 1958, which commenced: “No member of the police force or person if such member or person is acting under instructions from any officer of police not below the rank of sub-inspector shall be deemed to be an offender or accomplice … “. As may be seen, no reference to a “particular case” or other subject matter was required at that time. The whole Act was redrafted and reconsidered in the form of the Police Offences Bill in 1963 but that Bill had a somewhat chequered history. The relevant clause 196 was recast slightly, in that the provision relating to instructions was redrawn so as to read “if such member or person is acting under instructions (whether given generally or in any particular case) from any member of the police force not below the rank of sergeant … “. (Emphasis added.)
[29]See Papoulias at 861-862.
For various reasons, when the Bill was being debated on the second reading, it was agreed on 23 April 1963 that the Bill should be referred to the Statute Law Revision Committee. That Committee reported on 30 October 1963 but was somewhat critical of clause 196, and it is that criticism and its effect on the subsequent history of the clause or section upon which reliance has been made before this Court. The criticism was directed to the clause in the Bill, not directly to the former section, but it made some comments upon that section.[30] It said that s.192 was thought to limit the operations where individual instructions had been given, so that the Bill was intended to widen its sphere “by including instructions given generally”. The Committee said that it “questioned as to whether such a provision should appear in our law at all”, and there was some further comment to the effect that it might be encouraging what might be called agents provocateurs. The Committee therefore recommended that, rather than extending the section’s operation, “the clause should be firmly restricted to specific instructions from a member of the police force not below the rank of sergeant, each such instruction being in respect of a particular person, a specified place, for a definite stated time, and in written form.” Otherwise the section might be open to abuse, so that it should be subject to “very stringent restrictions”. Counsel here argued that that is how the present section should be read, having regard to the fact that its form may be traced directly to the Summary Offences Act as passed ultimately in 1966.
[30]At p. 24.
However, as has been seen, the proposed clause in the draft 1963 bill was not in significantly different terms from that which now appears both in the Summary Offences Act and in s.51. It was different from s.192, but the critical omission from the draft section is that of the word “generally”, together with the added requirement that an authority should be in writing. The section as passed did not, however, require specific instructions related to person, place or time, as was recommended. The expression “in any particular case” did not derive from the Committee’s recommendations, but from those who were originally responsible for drafting the new clause which itself had been criticised.
The clause’s subsequent history was that it fell with the Bill as originally introduced. Thereafter a new bill, the Summary Offences Bill 1965 was introduced on 15 September 1965. It was also referred to the Statute Law Revision Committee by resolution passed that day. For various reasons the new Bill was much shorter but the relevant provision, clause 58, expressed the required condition in these terms: “if such member or person is acting under instructions given in writing in relation to a particular case by a member of the police force not below the rank of sergeant …”. Although only minor changes had therefore been made to the earlier draft clause, the new clause attracted no criticism from the Statute Law Revision Committee which brought it in its report on 23 November 1965 and indeed it made no specific comment on the clause, save that it commented that, after examining the earlier report, it considered that the bill “adequately carries out the recommendations made by its predecessor”. That may not be precisely accurate but the clause became s.58 of the Summary Offences Act 1966, the only subsequent amendment to that section being the substitution of the rank of “senior sergeant” for that of “sergeant” as the person required to give the relevant written instructions.
I would therefore conclude that the expression “in any particular case” was not intended to be as specific as the Committee originally proposed. As stated above[31], the expression was already part of the proposed amended clause put forward by Parliamentary Counsel and in that respect, notwithstanding the Committee’s recommendations, it was not relevantly changed, albeit that the instructions had to be in writing and were not permitted to be general. Some reference was made to the fact that when the Second Reading Speech was made in the Legislative Council by the Honourable R.J. Hamer, the Minister said that “all the proposals made by the Committee are incorporated in this Bill …”, but at the time he was referring to what that Committee had said in relation to the 1965 Bill by its report of 18 November 1965, and he made no reference to the report of the earlier Committee. I therefore consider that the expression “in any particular case” means what it says and that the expression is not to be confined to particular persons, places or times as that earlier Committee had suggested, for its suggestion in that respect had not been adopted. The instruction in any authority must be “particular”, but its particularity is properly to be seen as related to the subject matter of the relevant authority, a “case” in which existing and future offences are being investigated. The present authorities therefore satisfy the language of the section.
[31]See para.[30].
For the reasons I have endeavoured to explain I believe that these authorities satisfy the requirements of s.51 of the Act. Not only does the earlier decision of Te require a conclusion to that effect, but I also think it is not appropriate in the circumstances to adjourn the matter to permit a Full Bench to be convened to hear the applicant’s arguments.
The application should be dismissed.
CALLAWAY, J.A.:
I have had the advantage of reading in draft the reasons for judgment prepared by the learned presiding judge. I am in general agreement with them. I specifically agree with his Honour that we should not depart from the decision in R. v. Te[32] and that its reconsideration by a court of five judges is not warranted. I do not think that the conclusion reached in that case is attended by sufficient doubt to disturb the understanding on which the authorities charged with law enforcement have acted since R. v. Papoulias[33]. I am not sure, with respect, that I could subscribe to all the reasoning in Te, but that is not to the point.
[32][1998] 3 V.R. 566.
[33][1988] V.R. 858.
Section 51 does not authorize the commission of offences. It provides that no person acting under instructions shall be deemed to be an offender or accomplice even though that person might, but for the section, have been deemed to be an offender or accomplice. Parliament has thereby excised from the conduct rendered illegal by the Drugs, Poisons and Controlled Substances Act 1981 conduct engaged in by a person acting under instructions. That is not only the substance of what is provided: it is also what the words say. The deeming is not fictitious. Section 51 does not say that a person acting under instructions shall be deemed not[34] to be an offender or accomplice and the concluding words recognize that, because of the section, a person acting under instructions is not an offender or accomplice. It is not a question of immunity from prosecution: the conduct of a person acting under instructions is simply not illegal.
[34]The section is drafted in the old-fashioned form “No person shall ...”. Transposed into the more correct “A person shall not” form of drafting, it would read “A member ... or person ... shall not be deemed to be an offender or accomplice ...”.
I, too, would dismiss the application.
VINCENT, J.A.:
I also agree that this application should be dismissed and essentially for the reasons advanced by Ormiston, J.A.
However I would add some observations with respect to the contention advanced on behalf of the applicant that the correctness of the decision in R. v. Te should be regarded as attended by sufficient doubt that there should be reconsideration of it by a Court constituted by five judges.
The authorization of members of the police force to commit serious offences, albeit for the purpose of securing evidence of serious criminal activity, constitutes a significant and potentially dangerous departure from principle. The integrity of the criminal justice system is compromised in a number of ways when evidence is gathered in this fashion. Accordingly, the legislature is not to be taken to have authorized the grant of a dispensation from responsibility under the criminal law by an agent of the executive, in this case a member of the police force, to another agent of the executive, a subordinate member of the police force, unless the necessary legislative intention has been made patently clear in the statutory provisions under which the authority is claimed. Consistent with this approach, provisions with respect to any conditions imposed by the legislature are not to be construed in a restrictive fashion and, before conduct can be regarded as encompassed by a purported dispensation, there needs to have been strict compliance with them.
Clearly, the executive cannot authorize those who act on its behalf to disregard the criminal law by which all in our society are bound and legislation is not to be interpreted as permitting that to occur unless it is evident from its terms that Parliament intended that result. There are a number of quite obvious reasons why this must be so and upon which I need not dwell. However they rest, in part, upon the need to ensure that the criminal justice system possesses in appearance and, much more importantly, in reality an underlying integrity and that it operates at all levels according to principle. In this context there is, as Lord Bridge, in his speech in R. v. Horseferry Road Magistrates' Court, Ex parte Bennett[35] stated, “no principle more basic to any proper system of law than the maintenance of the rule of law itself.”
[35][1994] 1 A.C. 42 at 67.
This necessity has been recognized by the courts and provides the foundation upon which illegally obtained evidence is on occasions excluded in the exercise of judicial discretion or a criminal prosecution permanently stayed by reason of public policy considerations.
At the same time, it is also evident that there is a profoundly important public interest to be served by the exposure and prosecution of those who offend against the laws on which we all depend for the maintenance of a safe and stable society. Inevitably circumstances will arise in which there is some tension between those two values which must be resolved if both are to be advanced. As Barwick, C.J. said[36]:
"On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there 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]The Queen v. Ireland (1970) 126 C.L.R. 321 at 335.
Although regrettable, it is clearly necessary for undercover operations to be mounted and for investigators to endeavour to infiltrate criminal networks from time to time. As a practical proposition, for example, in order to ascertain who is involved in drug distribution, there may be a need for an operative to discuss drug deals, make purchases and enter into arrangements for further purchases, all of which would almost certainly in the absence of some dispensation from criminal responsibility involve the commission of offences by the investigators concerned. It is widely understood that such activities are undertaken and I suspect that there are very few in the community who would not regard them as reasonable in the circumstances of many investigations. Drug abuse and the criminality which is associated with it provide the bases for immense social and economic loss in our society.
In order to address this situation and the conflict of values inherent in it, Parliament enacted s.51 of the Drugs, Poisons and Controlled Substances Act. As earlier indicated in the course of discussion, attention was drawn to the manner in which a provision such as s.51 should be approached. The argument was advanced that the legislature cannot be taken to have intended to have given a carte blanche to certain members of the police force to authorize the commission of what would otherwise be criminal acts without even the necessity to consider the nature of any possible acts involved or the circumstances or persons involved in their commission. There is, for the reasons to which I have earlier adverted, clear force in this contention.
However, as I see it, the argument cannot assist the applicant in the present case. The section, as the learned presiding judge has pointed out, was enacted by Parliament after a report was provided to it by the Statute Law Revision Committee. It is, I think, evident that there was recognition of the compromise of values inherent in the provision, which was enacted to address an increasingly serious social problem. The section was clearly designed to afford a measure of protection against the operation of the criminal law to investigators who in the legitimate pursuit of offenders may offend against the very laws that they are trying to enforce. Importantly, the section removes the taint of criminality from the process through which the evidence obtained against those detected has been gathered.
I agree with Callaway, J.A. that neither in its terms nor its obvious intent can s.51 be seen to confer immunity from prosecution for what would still be regarded as criminal conduct. Rather, the section is directed to the removal of the taint of criminality from the actions of a police member concerned. That person is not to be regarded as having acted criminally when acting in accordance with lawfully authorized instructions. Nevertheless, as a general description, it is not inappropriate to say, as other judges have done when considering the section, that the police member has been granted immunity for what would be generally recognized as a criminal act.
It is important to bear in mind that a number of safeguards have been incorporated in the section. First, only a relatively senior member of the police force can provide the necessary authorization. That person is identified and becomes accountable for the instructions given. Second, the instructions must be in writing. This requirement has at least three significant consequences. It establishes that the instructions were given and to whom. It removes any possibility of dispute as to the subject matter of the instructions and it identifies the subject matter of the investigation in relation to which the instruction has been given. Third, the member to whom the instructions are given is only granted dispensation or effective immunity for acts undertaken in accordance with those instructions and only in relation to offences against the Drugs, Poisons and Controlled Substances Act.
With respect to the specificity of the instructions which must be given in order for there to be compliance with the section, I agree with the views of Phillips, J.A. in R. v. Te and Ormiston, J.A. in his judgment in this application.
The interpretation of s.51 in R. v. Te, in my opinion, rests upon a recognition of the compromise inherent in the provision and gives proper effect to it. I do not consider that justification exists, in that circumstance, for the referral of the present matter to a court of five judges.
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