R v Ridgeway

R v RIDGEWAY
[1998] SASC 6963

Court of Criminal Appeal: Doyle CJ, Olsson and Lander JJ

DOYLE CJ. The appellant, Mr Ridgeway, was convicted upon the verdict of a jury of the offence of having a prohibited substance, namely heroin, in his possession for the purposes of sale, contrary to s32(1)(e) of the Controlled Substances Act 1984 (SA) (“the CSA”).
He appeals against the conviction and against the sentence imposed.
Two main grounds were argued on appeal. The first is that the trial judge, in the exercise of his discretion, should have excluded all or most of the evidence led by the prosecutor, inevitably leading to an acquittal. This submission was based upon the fact that unlawful acts committed by officers of a law enforcement authority had preceded, had been an integral part of, and had procured the commission of Mr Ridgeway’s offence. The second ground is that the trial judge should have stayed the proceedings on the ground that their continuance would expose Mr Ridgeway to a form of double jeopardy.
In resisting the former submission, counsel for the prosecutor submitted that any relevant illegality by officers of a law enforcement authority was cured by the provisions of the Criminal Law (Undercover Operations) Act1995 (SA) (“the Undercover Operations Act”).
These issues were argued before the trial judge as issues preliminary to the trial. The trial judge ruled against the submissions for Mr Ridgeway. He also rejected the countering submission by counsel for the prosecution.
On the appeal, counsel for Mr Ridgeway also argued a number of grounds of appeal relating to the conduct of the trial and to the summing up.

Facts

The main issues argued on appeal were the subject of a voir dire hearing before the trial judge on a number of different days. Some evidence was led before him. As well, he had before him the material upon which Mr Ridgeway was committed for trial.
Mr Ridgeway was the accused in Ridgeway v The Queen (1995) 184 CLR 19. As I understand the position, the trial judge was invited to decide the pre-trial issues upon the basis of the facts set out in the judgment of Mason CJ, Deane and Dawson JJ in Ridgeway, in particular at 25-27. Apart from the brief oral evidence called before the trial judge, and the material upon which Mr Ridgeway was committed, the trial judge had also before him an affidavit sworn by the solicitor for Mr Ridgeway. Annexed to that was a document setting out certain agreed facts. The oral evidence that the trial judge heard was evidence from two officers of the Australian Federal Police (“the AFP”).
The trial judge appears to have acted upon the basis of the evidence as summarized by Mason CJ, Deane and Dawson JJ in Ridgeway, and so will I. There are some additional relevant facts, and along the way I will refer to them. I will now identify what appear to me to be the important aspects of the facts.
Mr Ridgeway was acquainted with a Mr Lee. They had met while serving a sentence of imprisonment in South Australia for drug-related offences. Mr Ridgeway did not know that Mr Lee, after his release, had become a registered informer of the Royal Malaysian Police Force (“RMPF”).
In the latter part of 1989 Mr Ridgeway contacted Mr Lee, with a view to arranging through him to purchase heroin and to import it into Australia. Mr Lee was then in Malaysia. I emphasise that it was Mr Ridgeway who initiated the proposal. He demonstrated some persistence in relation to it. He indicated that if Mr Lee did not do what he wanted, he would pursue his proposals through another person.
Mr Lee dealt with Mr Ridgeway under the instructions of Mr Chong, an officer of the RMPF. He, in turn, was in contact with Mr Butler of the AFP.
The AFP, in conjunction with the RMPF, set up what has been described as a “controlled importation” of heroin into Australia with a view to the delivery of the heroin to Mr Ridgeway.
To implement this operation, Mr Lee and Mr Chong purchased heroin in the north of Malaysia. Some of the money used may have come from Mr Ridgeway. My impression is that the purchase of the heroin was illegal, but that is not completely clear.
Mr Chong took possession of the heroin. Again I gather, although it is not entirely clear, that Mr Chong’s possession of the heroin was unlawful in Malaysia.
Mr Chong and Mr Lee flew to Singapore. Arrangements were made with the Singapore Police. They took possession of the heroin. Once again I gather that this possession was unlawful, but once again that is not completely clear. The heroin was returned to Mr Chong, who then flew to Australia with Mr Lee.
Mr Chong and Mr Lee obtained Australian visas with the assistance of the AFP. The aircraft on which they flew to Australia arrived at Adelaide on Friday 29 December 1989. The heroin was concealed in a camera bag.
Officers of the AFP, in particular Mr Sweeney, had made arrangements for Mr Chong and Mr Lee to be cleared through Australian Customs at Adelaide Airport. This was done pursuant to standing arrangements between the AFP and the Australian Customs Service. Those arrangements in turn rested upon a Ministerial agreement of June 1987 between the Minister for Industry, Technology and Commerce and the Special Minister of State. That arrangement provided for a request to be made, in specified circumstances, for the transfer of customs control from the Australian Customs Service to the AFP. In such a case, responsibility for compliance with Customs’ requirements would rest with the AFP. It was pursuant to that agreement that the arrangements were made which enabled Mr Chong and Mr Lee to clear customs with the heroin in Mr Chong’s possession.
It is common ground that, despite the Ministerial agreement, Mr Chong’s importation of the heroin into Australia was an offence under s233B(1)(b) of the Customs Act 1901 (Cth). It is also common ground that members of the AFP who facilitated Mr Chong’s importation of the heroin were guilty of an offence under s233B(1)(d) of the Customs Act on the basis that they had counselled or aided and abetted the illegal importation of the heroin. The maximum penalty for each of the offences apparently committed by Mr Chong and by the members of the AFP was imprisonment for 25 years and a fine of $100 000.
Mr Ridgeway was under surveillance by the AFP from the time of Mr Chong’s arrival. Mr Chong retained possession of the heroin. Mr Lee met with Mr Ridgeway on several occasions, after his arrival in Adelaide. On two occasions Mr Chong gave to Mr Lee a very small sample of heroin, described as a “taste”, for delivery to Mr Ridgeway. Apparently the purpose was so that Mr Harvey, who was with Mr Ridgeway, could assess the quality of the heroin. Officers of the AFP were aware of and agreed to this happening. It is implicit in what I have said that officers of the AFP were working closely with Mr Chong.
On 31 December Mr Ridgeway and Mr Harvey met with Mr Chong and Mr Lee in a motel room in Adelaide. A short time later Mr Ridgeway and Mr Harvey left the room. They were apprehended almost immediately by officers of the AFP. The prosecution case was that Mr Ridgeway was carrying a camera bag, and that the heroin imported by Mr Chong was in the bag. The prosecution case was also that Mr Ridgeway had given Mr Chong and Mr Lee $9 000 for importing the heroin, and had received the heroin from them.
In the present proceedings it was common ground that Mr Chong’s possession of the heroin was an offence under the CSA. He was guilty of one or more of the offences of possession of a prohibited substance, contrary to s31(1)(a) of the CSA, sale or supply of a prohibited substance contrary to s32(1)(c) of the CSA, and possession for the purpose of sale of a prohibited substance contrary to s32(1)(e) of the CSA. Officers of the AFP were liable to prosecution for offences ancillary to these offences.
There is no evidence that members of the police force of South Australia were consulted about the operation, or that any sort of purported authorisation was obtained for the operation for the purposes of the law of South Australia. As the law of South Australian then stood, any such authorisation would have been ineffective.
Although the trial judge made no finding on the point, there is no reason to doubt that Mr Chong and the officers of the AFP acted in good faith. They had good reason to think that Mr Ridgeway intended to import heroin into Australia, and was capable of putting his intention into effect without their co-operation. It would have been difficult to expose Mr Ridgeway’s intended offence if he had gone to another source for heroin. The controlled operation was carefully managed. I am, however, not satisfied that the operation could not have succeeded using a harmless substitute for heroin, but I appreciate that there was probably a need to provide “tastes” as a preliminary to the sale. I am not in a position to find that the operation would have succeeded with a harmless substitute, I am simply left uncertain on the point.
The AFP officers gave evidence before the trial judge to the effect that they were unaware at the time that their conduct, and that of Mr Chong, was unlawful.
Mr Rathjen, one of the AFP officers, said that he believed that Commonwealth law overrode the State law in relation to the importation of the heroin. Presumably he meant by that that the relevant Commonwealth law had the effect of rendering the later possession of the heroin in this State lawful also. When questioned about the supply of the “tastes” he seems to have agreed that “technically” that constituted an offence. His evidence on the topic is not clear. He said that the sole purpose of the operation was to secure a conviction under the Customs Act.
Mr Sweeney, the other AFP officer who gave evidence, said that he was probably not aware at the time of the decision in R v Chow (1987) 11 NSWLR 561. That decision was given in October 1987. In the course of that decision the Court of Appeal of the Supreme Court of New South Wales said (at 566):
“To the extent that the submission contends that the Federal Police, with or without Ministerial concurrence, may arrange for narcotic goods to be imported into Australia contrary to the terms of the Customs Act (Cth), s233B(1)(b), it fails in limine and it is unnecessary to refer here to the detail of the evidence ...”

The implicit suggestion by counsel was that after that decision officers of the AFP should have been aware that a controlled operation of the type in question here did not cure the illegality that would otherwise arise.

I accept, as I suspect the trial judge did, that the AFP officers believed, in a somewhat confused fashion, that their conduct was not unlawful under the Customs Act, and that the only illegality under State law was the supply of the “tastes.”
It is difficult to understand how that view could have been held within the higher levels of the AFP, bearing in mind the legal advice that would have been available. Nevertheless, I proceed on the basis that it was thought that the conduct of Mr Chong and of the AFP officers was not unlawful, except in the sense already mentioned.
I approach the matter on the basis that the conduct of the AFP officers in fact involved grave criminality. It attracted a maximum penalty of imprisonment for 25 years and a fine of $100 000 or both. I also proceed on the basis that it involved offences under the CSA that attracted a maximum penalty of 25 years’ imprisonment or a fine or $200 000 or both.

Previous proceedings

Mr Ridgeway was convicted in the District Court of South Australia on an information charging him with the offence of possessing a prohibited import, namely, the heroin imported into Australia by Mr Chong. On appeal the High Court set aside the conviction; Ridgeway v The Queen (1995) 184 CLR 19. It did so on the basis that the importation of heroin by Mr Chong was illegal; that officers of the AFP were involved in that illegality upwards to a high level of command; that on grounds of public policy the evidence of the illegal importation should have been excluded; and that accordingly the prosecution could not prove an essential element of the offence, the prior unlawful importation of the heroin. The High Court ordered a permanent stay of further proceedings in relation to the offences alleged under the Customs Act.
Mason CJ, Deane and Dawson JJ expressly left open the possibility of a prosecution against Mr Ridgeway under the CSA. They said (at 44):
“The second further matter is that, as has been indicated, a quashing of the appellant’s conviction and the imposition of a stay of proceedings in respect of the offence against the Act will not preclude the appropriate authorities from instituting proceedings against the appellant for an offence or offences against the law of South Australia. In the event that such proceedings are instituted, it may be that the appellant will seek to have the whole of the evidence of any alleged offence excluded on public policy grounds by reason of the illegal police conduct. This Court has not heard argument on the question whether a proper exercise of the discretion would require the exclusion of the evidence in those circumstances. It should, however, be clear from what has been written above that the fact that illegal importation would not be an element of the charged offence would greatly reduce the weight of the considerations favouring an exclusion of evidence.”
Olsson J, in his reasons, has summarised the approach taken by the trial judge to the application for exclusion of the relevant evidence. I will not repeat that material.

The Undercover Operations Act

By the time of the trial in question, the Parliament of South Australia had enacted the Undercover Operations Act. The legislation is a response to the decision of the High Court in Ridgeway, and its exposure of the difficulty faced by a law enforcement authority in circumstances like the present case.
Section 4 provides as follows:
“(1).. Despite any other law, 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.
(2). This section operates both prospectively and retrospectively.”

If that provision applies, it would be a very material matter to consider in the exercise of what I will refer to as the Ridgeway discretion to exclude evidence of an illegally procured offence. I will refer in more detail to the nature of that discretion in due course.

“Approved undercover operations” are defined by s2 to mean:
“(a).. undercover operations approved under this Act; or
(b). undercover operations approved by a law enforcement authority before the commencement of this Act that are of a type that could have been reasonably approved under this Act if this Act had been in force when the operations commenced”.

Subparagraph (b) of the definition is the relevant provision.

“Undercover operations” are also defined. That expression 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.”
“Serious criminal behaviour” is also defined. It is defined to mean:
“... behaviour involving the commission of -
(a).. an indictable offence; or
(b). an offence against the Controlled Substances Act 1984; or
... ”

and offences against specified sections of five other Acts of the South Australian Parliament.

On the evidence, I am satisfied that the controlled importation of the heroin by Mr Chong, the possession of the heroin in Adelaide and the handling of it, and the dealings with Mr Ridgeway were part of an operation approved by a law enforcement authority before the commencement of the Undercover Operations Act.
I reach that conclusion as a matter of fact on the basis that the operation that was approved involved the obtaining, importation and sale of the heroin. I reach that conclusion as a matter of law on the basis that the AFP is, for the purposes of the Undercover Operations Act, a law enforcement authority.
In my opinion that expression should not be restricted to a member of the police force of South Australia, or even to some entity with authority under the law of this State to enforce the law. I am satisfied that Parliament intended to reach more widely than that. It is to be noted that in relation to future undercover operations, the giving of an approval is provided for by s3, which contemplates the giving of an approval by a senior police officer. It is clear that that means a member of the police force of South Australia. In relation to past operations, the use of “law enforcement authority” suggests a deliberate choice to reach more widely; cf R v Albu (1995) 65 SASR 439 at 449 Cox J. In enacting the Undercover Operations Act Parliament must be taken to have been aware of the fact that various law enforcement authorities had already purported to approve undercover operations. It is understandable that Parliament would have intended, within certain limits, to legitimise what had been done in the past. To my mind it is not surprising that Parliament should contemplate legitimising undercover operations that have been authorised by law enforcement authorities of the Commonwealth or of another State. If the intention had been to restrict the retrospective operation of the Undercover Operations Act to operations approved by officers of the South Australian police force or by some other body authorised by State law, I consider that Parliament would have used more limited language than the language that it has used.
It is for those reasons that I conclude that the relevant operation was approved by a law enforcement authority.
But to be an approved undercover operation, the operation had to be an “undercover operation” as defined. That means that its purpose had to relate to persons “engaging or about to engage in serious criminal behaviour.”
On the evidence before the trial judge, the intended purpose of the operation was to provide Mr Ridgeway with an opportunity to manifest behaviour involving the commission of an indictable offence under Commonwealth law, namely, an offence under s233B of the Customs Act. The purpose did not include the exposure of offences under the CSA, even though the commission of such offences was a necessary result of the operation.
Does “serious criminal behaviour” as defined include behaviour involving the commission of an indictable offence under the law of the Commonwealth? I consider that it does.
As the present case illustrates, and as I am confident will arise in the future, there are situations in which events will occur in this State which are part of an operation intended to expose an offence under Commonwealth law or, indeed, the law of another State. It is readily understandable that such an operation might also involve conduct that is a crime under the law of this State. The present case is an instance. In my opinion Parliament would have envisaged the need for approvals, prospectively and retrospectively, for operations intended to expose indictable offences under the law of another place, which operations might also involve offences under the law of this State, even though the purpose of the operation was not to provide a person with an opportunity to engage in serious criminal behaviour contrary to the law of this State. I consider that it is likely that Parliament envisaged that approval could be given to an operation like the one in question, even though the purpose of the operation was the exposure of an offence against Commonwealth law. Of course, looking to the future, the problem could largely be avoided by treating the operation as having more than one purpose - the exposure of offences under the Customs Act and of offences under the CSA. But I do not consider that that is essential. I consider that Parliament envisaged the giving of an approval under the Undercover Operations Act for an operation, the only purpose of which is the exposure of an offence under the law of another place, the purpose of the approval under the Undercover Operations Act being to protect against liability for incidental criminality under the law of this State.

If I am wrong in that, it would follow that the relevant operation was not an approved undercover operation, because its intended purpose was not to provide Mr Ridgeway with an opportunity to manifest an intention to engage in serious criminal behaviour contrary to the law of this State. It was a necessary result of the operation that Mr Ridgeway would commit offences against the law of this State, but that appears to have been no part of the purpose of the operation.
For these reasons, I conclude that the operation which led to Mr Ridgeway’s arrest was an undercover operation approved by a law enforcement authority before the commencement of the Undercover Operations Act.
The next issue is whether it is an operation “of a type” that could have been reasonably approved under the Undercover Operations Act.
Any such approval would be required only for the purposes of, and could relate only to, criminal liability under the law of South Australia. Thus, if the present case were to occur in the future, I would expect the AFP to seek an authorisation under Part 1AB of the Crimes Act in relation to an offence against s233B of the Customs Act, and an approval from a senior police officer of the South Australian police force under s3 of the Undercover Operations Act in relation to possible criminal offences under the law of this State. In principle, I can see no reason why an undercover operation could not proceed under the basis of an authorisation under the Crimes Act and an approval under the Undercover Operations Act.
But when the operation in question commenced, there was no provision under the Crimes Act whereby an authorisation could be obtained that would protect an officer of the AFP from liability for a breach of the Customs Act. The relevant part of the Crimes Act was not enacted until 1996.
If the Undercover Operations Act had been in force in 1989, and an approval had been sought under it for the undercover operation, the police officer from whom the approval was sought would have had to consider the fact that the operation involved serious breaches of the Customs Act, for which there was no process of authorisation under the Crimes Act. That being so, could the police officer reasonably have approved the operation in relation to offences under the law of this State, knowing that it would involve the commission of serious offences under Commonwealth law? I do not think so.
But the requirement of the Undercover Operations Act is not that the operation be one that could have been approved under the Act. The requirement is that the operation be one “of a type” that could have been reasonably approved. What is the significance of the inclusion of the words “of a type”?
It would not have been surprising if Parliament had limited retrospective approval to past operations that could have been reasonably approved under the Act. Some loosening of the test must have been intended by the additional words “of a type”. I conclude that the explanation for their presence is an intention to apply s4 to a past operation even though the operation could not in fact have been reasonably approved, so long as it is the type of operation that could reasonably be approved under the Undercover Operations Act. An operation involving the sale of heroin contrary to the CSA is a type of operation that could be approved under the Undercover Operations Act. The approval could relate only to the possession and sale of the heroin in this State, not to antecedent acts such as its importation into Australia. It makes sense to say that this is a type of operation that could reasonably be approved, even though in the past an actual operation that involved the use of illegally imported heroin could not reasonably be approved.
It might be objected that this line of reasoning misses the point, and that in considering the type of operation involved one has to include the fact that it is an operation of a type that involves the use of illegally imported heroin. I acknowledge the force of that argument. However, to my mind the intended focus of the provision is upon the nature of the operation, rather than the origin of the material that it involves.
On that basis I conclude, by a rather tortuous route, that s4 does apply to the operation in question. My examination of the relevant provisions makes me think that the Undercover Operations Act may yet cause problems in the future.

The Ridgeway discretion

The principle on the basis of which the trial judge was asked to exclude much of the prosecution evidence was expressed as follows in Ridgeway by Mason CJ, Deane and Dawson JJ at 35-36:
“At this stage, it suffices to say that, for the reasons given above, it should be accepted that a trial judge possesses a discretion to exclude, on public policy grounds, evidence of an offence or of an element of an offence in circumstances where its commission has been brought about by unlawful conduct on the part of law enforcement officers.”
The discretion is very similar to the Bunning v Cross discretion to exclude illegally procured evidence: Ridgeway at 37-38 Mason CJ, Deane and Dawson JJ; at 52 Brennan J. It may be that there is in truth only one discretion, with complementary aspects: Ridgeway at 38 Mason CJ, Deane and Dawson JJ; at 52, Brennan J; at 64 Toohey J; contra at 74 Gaudron J; at 86 McHugh J.
To the extent that the Ridgeway discretion differs from the Bunning v Cross discretion, its focus is not upon the exclusion of a particular item of evidence procured or obtained by unlawfulness but upon the possible exclusion of all evidence of an illegally procured offence: Ridgeway at 38 Mason CJ, Deane and Dawson JJ; at 52 Brennan J. Olsson J, in his reasons, sets out the explanation given by Mason CJ, Deane and Dawson JJ of an offence being procured by illegal conduct. I will not repeat that explanation. I refer also to what Brennan J said on the same topic in Ridgeway at 52.
The approach to the exercise of the Ridgeway discretion is summarised by the following passage from the reasons of Mason CJ, Deane and Dawson JJ in Ridgeway at 42-43:
“In these circumstances, the above-mentioned factors - ie grave and calculated police criminality; the creation of an actual element of the charged offence; selective prosecution; absence of any real indication of official disapproval or retribution; the achievement of the objective of the criminal conduct if evidence be admitted - combine to make the case an extreme one in which the considerations favouring rejection of evidence on public policy grounds are extremely strong. Against those considerations, one must weigh the legitimate public interest in the conviction and punishment of the appellant for the criminal offence of which he is guilty. The weight of that consideration in the present case is reduced by the fact that the appellant’s possession of the heroin at the time he was apprehended constituted any one of a variety of offences against the law of South Australia of which illegal importation was not an element and which range from knowing possession of a prohibited substance or drug of dependence (maximum penalty: $2,000 and 2 years’ imprisonment) to possession of more than the prescribed quantity of a prohibited substance or drug of dependence for the purpose of sale or supply (maximum penalty: $500,000 and life imprisonment). That being so, the effect of a stay of the prosecution of the appellant for offences against the Commonwealth Act would be that the appellant remained liable to be prosecuted under State law. In all the circumstances, the considerations of public policy favouring an exclusion of evidence of the illegal importation of the heroin clearly outweigh the considerations of public policy favouring the conviction of the appellant of an offence under s233B(1) of the Act.” [Footnotes omitted.]

I refer also to the reasons of Brennan J at 53 and of Toohey J at 64.

The facts in the present case are substantially the same as the facts in Ridgeway. The difference is that on this occasion the offence in question is that of possession of heroin for sale, not possession of a prohibited import. Proof of Mr Ridgeway’s guilt, when one considers the elements of the present offence, does not require proof of the complicity of the AFP in the unlawful importation of heroin into Australia. The proper presentation of the prosecution case would require proof of the possession of the heroin by Mr Chong and Mr Lee, of the provision of the tastes to Mr Harvey, and of the delivery of possession by Mr Chong to Mr Ridgeway. The illegality in which the AFP officers were involved is not an essential element of Mr Ridgeway’s offence, which consists of the possession of the heroin for sale. However, the illegal possession of the heroin by Mr Chong is intimately related to the illegal possession of Mr Ridgeway. The distinction between the present case and Ridgeway appears to lie solely in the fact that while the illegality in which Mr Chong and the AFP officers were involved was equal to the illegality for which Mr Ridgeway was charged, the former illegality was not an element of the offence that gave rise to Mr Ridgeway’s illegality.
This is not a case in which evidence of a completed crime has been obtained by unlawful means. The complaint is that Mr Ridgeway’s possession of the heroin for sale came about as a result of Mr Chong’s equally unlawful possession of the heroin for sale, and that possession was aided and abetted by, indeed dependent upon the assistance of, officers of the AFP.
The conduct of the AFP officers procured Mr Ridgeway’s illegal conduct in the sense that it made it possible. However, it must be remembered that Mr Ridgeway was determined to obtain heroin for sale by one means or another. The AFP officers did no more than give him the opportunity to commit the offence that he evidently planned to commit.
While the illegal conduct of the AFP is not itself the principal offence to which Mr Ridgeway’s offence is ancillary, and does not itself create or constitute an essential ingredient of Mr Ridgeway’s offence, it is of equal seriousness and, as I have already said, intimately involved with Mr Ridgeway’s offence.
To my mind, the case lies between the two categories of procurement identified by Mason CJ, Deane and Dawson JJ in Ridgeway, in the lengthy passage set out in the reasons of Olsson J. At the risk of repetition, I make the point that the AFP officers were involved in the commission of the very same offence as that for which Mr Ridgeway is charged. They were involved in serious criminality. There is no indication of official disapproval of their conduct. I refer again to the passage, earlier cited, where Mason CJ, Deane and Dawson JJ summarised the approach that they took to the exercise of the discretion.
The fact that the illegal conduct of the AFP was not itself an element of Mr Ridgeway’s offence was apparently regarded by Mason CJ, Deane and Dawson JJ as significant. That appears from the concluding part of the extract from their reasons set out above. It is not clear whether Brennan J and Toohey J regarded the distinction as equally significant, see Ridgeway at 53 and at 64 respectively.

The exercise of the discretion

If, as I have concluded, s4 of the Undercover Operations Act applies to the present case, no criminal liability now attaches to the officers of the AFP, or to Mr Chong or Mr Lee, treating them as authorised participants as well, in relation to their possession of the heroin in South Australia. As well, to the extent that the circumstances of the importation of the heroin are relevant, it now appears that any criminal liability attached to their involvement in that is removed by s15X of the Crimes Act (Cth). The effect of the application of that section was considered by the High Court in R v Nicholas (1998) 151 ALR 312.
The application of s4 does not alter the fact that the heroin was a prohibited substance. While in a sense, or in the abstract, its possession remained unlawful, s4 so operates so that those involved in its possession prior to its delivery to Mr Ridgeway incur no criminal liability.
The matter was not considered in this way by the trial judge. He considered that the Undercover Operations Act did not apply. Considering the exercise of the Ridgeway discretion on the basis that s4 does apply, my opinion is that the competing considerations come down in favour of the admission of the evidence. I take s4 as an indication by Parliament that in a case like this any criminality on the part of the law enforcement authority is eliminated and so is to be excluded from consideration. The real foundation for the exclusion of the evidence, criminal conduct on the part of the law enforcement authority, has now gone. By admitting the evidence the court no longer gives its approval to unlawful conduct by members of the law enforcement authority, and, of course, there is no question of unfairness to Mr Ridgeway.
On that basis I consider that no complaint can be made of the failure to exclude the relevant evidence. But because the case may go further, I propose to consider it now on the basis upon which the trial judge approached it. That is, on the basis that the members of the AFP were guilty of serious unlawful conduct.
Olsson J has summarized the reasoning of the trial judge. He has also set out a central part of his reasons. I do not agree that the trial judge failed to address the correct issues. In the course of his reasons he referred specifically to the High Court decision in Ridgeway. He did not, it is true, refer expressly to the serious illegality under State law in which the AFP officers were involved, when addressing the exercise of the Ridgeway discretion. But I consider that what he meant was that once one took into account the fact that the illegal conduct of the AFP officers was not an element of the offence with which Mr Ridgeway was charged, the scales came down in favour of admitting the evidence. I do not consider that, considered as a whole, his reasons indicate that he overlooked the serious criminality under State law. Earlier parts of his reasons show that he was well aware of the breaches of the CSA in which the AFP officers were involved. He set out an extract from the reasons of Mason CJ, Deane and Dawson JJ that referred to offences under the CSA. He considered the application of the Undercover Operations Act to those offences. In my opinion he was right to proceed on the basis that proof of illegality under the CSA was not an essential element of the offence with which Mr Ridgeway was charged. He referred to Bunning v Cross, and a part of the reasons of Stephen and Aickin JJ that refers to the competing requirements of public policy.
For those reasons I do not agree that the trial judge failed to exercise the Ridgeway discretion, or that he misdirected himself in doing so.
But, was his decision erroneous, in the sense of being a decision that could not be reached in the proper exercise of the discretion?
I must say that I regard the considerations favouring exclusion of the evidence relating to Mr Chong’s possession of the heroin, his delivery of it to Mr Ridgeway, and Mr Ridgeway’s consequent possession of the heroin, as powerful.
Mr Chong, aided by officers of the AFP, was guilty of an identical offence to that for which Mr Ridgeway was convicted. Admittedly, Mr Chong’s possession was closely supervised by officers of the AFP. There was no real risk of the heroin getting on to the market. Nor was there a victim of the crime in which the AFP officers were involved. It is not a case like R v D’Arrigo [1994] 1 Qd R 603 in which a police agent participated in the theft of a large number of motor vehicles in order to catch receivers of stolen cars. But the fact of the offence remains. As I have already explained, the official criminality, if I can call it that, is central to the prosecution case, although not an element of Mr Ridgeway’s offence. The court is asked to condone or ignore the official illegality, by receiving evidence of Mr Chong’s illegal possession without demur, while enabling the evidence of Mr Ridgeway’s possession to be used as a basis for convicting him. The official illegality was intentional. There is no indication of official disapproval. On the present hypothesis, the Undercover Operations Act does not apply. Parliament has not chosen to legitimise the situation retrospectively.
There are matters pointing the other way. Mr Ridgeway’s intended offence was one that would be hard to detect by relying upon surveillance. It was a serious and prevalent offence. It is understandable that there seemed to be no other way of exposing his criminality. To my mind it is also of some but limited significance that the present prosecution is brought by an authority of the State, and a State authority was not involved in any way in the official criminality. However, the Director of Public prosecutions (“the DPP”) shows no inclination to prosecute those who were. There is a strong public interest in the conviction and punishment of Mr Ridgeway. The official illegality was not committed to produce an element of the crime for which Mr Ridgeway was convicted.
It is not for me to exercise the discretion afresh. The issue for me is whether it was open to the trial judge to reach the conclusion that he did on the basis that he did, namely, that the Undercover Operations Act does not apply. Although the considerations favouring the exclusion of the evidence are strong, so are the considerations pointing the other way. My view is that the decision reached by the trial judge is one that was open to him. I regard the case as a difficult one. That being so, it is all the more difficult to say that the trial judge’s decision is wrong.
For those reasons I would not interfere with the decision.

Double jeopardy - the appellant’s submission

It is submitted that the trial judge should have stayed the proceedings on the grounds that their continuance would expose Mr Ridgeway impermissibly to a form of double jeopardy.
The submission is that Mr Ridgeway is now charged with an offence, the essence of which is the possession of heroin, and the same possession was the essence of the offences charged in Ridgeway. It is also submitted that the substance of each offence is identical. It is correct that possession of heroin is central to each offence but the fact is, as Olsson J points out, that the offences are in law quite different. It cannot be suggested that the present charge is, in substance, an attempt to pursue the matters stayed by the High Court’s decision in Ridgeway. However, the proof of each offence involves the presentation of much overlapping evidence.
It is submitted that the same evidence and witnesses are involved in each case. I agree, save that evidence about events prior to the arrival of the heroin in South Australia is not relevant. But to my mind, the fact that the same evidence is involved in each case is of no particular significance.
It is submitted that the offence under the CSA could have been charged on the earlier information as an alternative count. I agree, and attach some weight to that. That would have meant that from the outset Mr Ridgeway knew that he faced an alternative count under State law.
It is submitted that there has been unnecessary delay by the DPP in bringing these proceedings. I disagree. An information charging the present offence was filed on 31 July 1995, a little more than three months after the High Court decision in Ridgeway. Various procedural matters and arguments have taken a good deal of time since then. I agree with the trial judge’s conclusion that there has been no undue delay by the DPP. That is subject to the point that this charge could have been laid when the first information was filed in about 1990. But if it had been laid then, the jury at the first trial would have been instructed not to return a verdict on the charge under the CSA if they found Mr Ridgeway guilty under the Customs Act. After the matter had gone to the High Court it would, presumably, have been returned to enable further proceedings on the information. So much the same end result would have been reached.

It is submitted that Mr Ridgeway was in custody after his first trial, was released, and has now suffered a second return to custody. I accept that that is a relevant matter.
The trial judge found that the delay has not given rise to any prejudice to Mr Ridgeway in presenting his defence. That is a relevant matter.
It is on the basis of these matters that Mr Ridgeway claims that it is an abuse of process for the present charge to proceed.

Double jeopardy - relevant principles

In Walton v Gardiner (1993) 177 CLR 378, the High Court rejected the notion that the power of the court to stay proceedings as an abuse of process is limited to cases where the proceedings have been brought for an improper purpose or where there is no possibility of the court affording the affected party a fair hearing.
The High Court in Walton was concerned with proceedings before a professional disciplinary tribunal, not proceedings before a court. But the court drew upon principles applicable to court proceedings. Mason CJ, Deane and Dawson JJ said (at 395-396):
“As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice. The question whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings.” [Footnotes omitted.]
The High Court decision in Walton was an appeal from a decision of the Court of Appeal of New South Wales in Gill v Walton (1991) 25 NSWLR 190. Complaints had been made in 1982, 1983, 1985 and 1986 against medical practitioners alleging professional misconduct in the treatment and supervision of patients. The alleged misconduct occurred between 1973 and 1977. The complaints were made to a statutory disciplinary tribunal. In 1986 the Court of Appeal ordered a stay of the proceedings before the tribunal. It did so on the grounds that their continuation was harsh and oppressive and was an abuse of the process of the tribunal. The Court relied upon what it regarded as inexcusable delay on the part of the complainants, the time that had elapsed since the conduct the subject of the complaints, the intervening history of proceedings against the practitioners, and the loss of information and evidence that would be important for the defence. As a result of a later Royal Commission, which produced further evidence, the complaints alleging misconduct were reformulated in a manner which showed a substantial degree of overlapping between the issues to which the new complaints gave rise and the issues that would have arisen under the previous complaints.
Gleeson CJ referred to the earlier findings of inexcusable delay. He commented that since the earlier finding a further period of five years had elapsed. That delay had caused further prejudice. Gleeson CJ said (at 200):
“I consider that the complainants have been put at a significant disadvantage in defending themselves by reason of the time that has elapsed since the events in question. However, I am not persuaded that it would not be possible for them to obtain a fair hearing before the tribunal of the complaints now being made against them.”

He referred to the previous orders staying proceedings. He said (at 200):

“It cannot be said that the present case falls squarely within any of the settled particular instances of specific legal rules informed by the principle against double jeopardy. There was no hearing on the merits of the original charges against the claimants. Indeed the original charges, although similar, are not identical to, the present charges.”

A little later he said (at 201):

“The combination of the time that has elapsed, by virtue of unreasonable delay on the part of the department, between the time of the conduct in question and the time of the laying of the new charges, with its consequent prejudice, and of the fact that the new charges are closely related to charges that this court ordered should not be proceeded with, and that the claimants were therefore entitled to regard as behind them, gives rise to a powerful argument that what is now attempted by the department is oppressive.”

He went on to say that the Court had to weigh in the balance the public interest not only in fairness of procedure, but also in the due prosecution of charges such as those under consideration. The fitness to practise of the practitioner in question was an important matter. He concluded that the matter was finely balanced, but that the earlier stay tipped the scales in favour of the claimants. He said (at 202):

“What is involved is not merely consistency of adjudication, although that is significant. More important, it seems to me that it would be oppressive to require the claimants to face new proceedings, some five years after the original proceedings against them were stayed. That consideration, combined with the significant prejudice they have already suffered by reason of the department’s unreasonable delay, produces the result that the new proceedings, insofar as they relate to the principal complaints, should also be stayed.”

Kirby P approached the matter in a similar way: at 206-207. I refer also to the discussion of the relevant principles by Kirby P in Cooke v Purcell (1988) 14 NSWLR 51 at 55-56.

On appeal, the High Court found no error in the approach taken by the Court of Appeal of New South Wales. The majority accepted the relevance of notions of fairness to an accused person that underlie the common law principle against double jeopardy (at 398). The majority also treated as relevant the fact that the substance of the new complaint largely corresponded with the substance of the complaints that had been stayed.

Double jeopardy - the present case

The trial judge has not dealt expressly with the submission based upon principles of double jeopardy, although it appears to have been an aspect of the submissions before him. I therefore approach the matter afresh.
There has been no final determination on the merits of the charge under the Customs Act. The conviction has been set aside and the proceedings stayed. However, as Walton demonstrates, the fact that there has not been a determination on the merits does not prevent the court from staying later proceedings that substantially overlap with the stayed proceedings. But in the present case the proceedings against Mr Ridgeway have not been stayed because those proceedings were oppressive or unfair. They have been stayed because, as a result of the exclusion of evidence tendered by the prosecution, the proceedings would necessarily fail, making their continuance oppressive and vexatious in that more limited sense. There is an area of overlap between the charges laid in the present proceedings and the stayed charges, in that the possession of heroin is a central aspect of each. The evidence to be tendered by the prosecution in the earlier proceedings and in the present proceedings is much the same, although not entirely so. There has been no undue delay by the prosecution in the present case, and there is no prejudice to a fair trial from the delay.
In Walton, the fact of the earlier stay on grounds of oppression was an important factor. It raised the issue of consistency of decision-making, as well as double jeopardy. It would seem inconsistent that charges, similar to charges stayed on the grounds of oppression, could later be pursued. As well, the oppression and prejudice found to arise from the earlier charges could only have deepened by the time of the later charges.
In the present case there is no inconsistency between the stay imposed by the High Court and allowing the present charges to proceed. The stay of the Customs Act charges was granted because the prosecution could not succeed, and for no other reason. The delay since then is not oppressive, and does not give rise to prejudice to the defence of the charges under the CSA. It is true that the present charges could have been laid at the time of the earlier information. But, as I explained a little earlier, if they had been so laid, my view is that no verdict would have been taken upon them. Mr Ridgeway would still be in the position of facing, in effect, a re-trial on the charges under the CSA. If the charge under the CSA had been laid under the earlier information, Mr Ridgeway would have known all along that he had to face that charge. I acknowledge the force of that point.
When I weigh up the issue of fairness, as explained in Walton, against the public interest in the disposition of charges of serious offences, and public confidence in the administration of justice, and bear in mind the lack of any ground for substantial criticism of the conduct of the prosecuting authorities, I come to the conclusion there are no grounds upon which a stay should be granted.
Accordingly, this ground of appeal fails.

Other grounds of appeal against conviction

As to the other grounds of appeal argued, I am content to agree with the conclusions of Olsson J and with the reasons that he has given.

Appeal against sentence

For the reasons given by Lander J, I agree that the appeal against sentence should be dismissed.

Conclusions

For those reasons, I would dismiss the appeal against conviction and the appeal against sentence.

OLSSON J. The appellant appeals, by leave, against both his conviction, by verdict of a jury, of the offence of possession of heroin for sale and also the sentence imposed on him in respect of it. He asserts that the sentence was manifestly excessive in the circumstances.
The conviction and sentence of the appellant must be viewed against a substantial background history of prior litigation which arose from the circumstances relied upon by the Crown.
The appellant was originally charged by the Director of Public Prosecutions (Cth) with possession, without reasonable excuse, of a prohibited import, contrary to s233B(1)(c) of the Customs Act 1901 (Cth). Having been convicted of that offence, the appellant appealed, successively, to the Court of Criminal Appeal and the High Court. As appears from Ridgeway v The Queen (1995) 184 CLR 19, the High Court quashed the conviction and stayed further prosecution under s223B of the Customs Act. It did so on the ground that importation of the heroin in question had come about by reason of illegal conduct of law enforcement officers. Accordingly, evidence of that importation ought to have been excluded on grounds of public policy.
The facts leading to that decision are simply stated. A quantity of 140.4 grams of pure heroin was brought into Australia by one Chong of the Anti Narcotics Branch of the Royal Malaysian Police Force (“RMPF”), with the knowledge and approval of the Australian law enforcement authorities. This had been purchased on or near the Thai border by Chong and a man named Lee. The latter was said to have been a former gaol inmate with the appellant in South Australia. Lee was deported to Malaysia after release from prison. He became a registered informant with the RMPF, unknown to the appellant. The Crown asserted that Lee had allegedly been importuned by the appellant, over a period of time, to procure the heroin with funds to be supplied to him by the latter and then illegally bring it into Australia. Lee disclosed the approaches to him to the RMPF, which entered into an arrangement with the Australian authorities to set up an undercover operation designed to entrap the appellant.
In the Customs Act proceedings it emerged that the original purchase of the heroin was illegal where it took place, as was its arranged importation into Australia. Despite purported Ministerial approval of the operation, there was no statutory provision which sanctioned what was a clear breach of the provisions of the statute.
Be that as it may, Chong and Lee travelled to Adelaide, via Singapore, with visas issued by the Australian Government on the application of the Australian Federal Police (“the AFP”). The heroin was cleared through customs pursuant to the Ministerial approval.
From the time of their arrival the appellant was kept under surveillance by officers of the AFP. Lee met him several times in Adelaide and supplied very small “tastes” of the heroin for testing. Thereafter, on 31 December 1989, the appellant went to an hotel room and met Chong and Lee. The Crown case was that the appellant had earlier remitted funds to Lee with which to purchase the heroin and also handed over a further $9000 in the hotel room, in exchange for a camera bag containing the heroin. He was arrested by AFP officers with the camera bag and its contents after leaving the hotel room.
In the course of their judgments in Ridgeway v The Queen (supra) various members of the High Court expressly left open the issue of whether, despite the outcome of the federally initiated prosecution, a prosecution under State legislation could be sustained. The situation in that regard was, for example, expressed by Mason CJ, Deane and Dawson JJ, in their joint judgment in these terms:-
“... a quashing of the appellant’s conviction and the imposition of a stay of proceedings in respect of the offence against the Act will not preclude the appropriate authorities from instituting proceedings against the appellant for an offence or offences against the law of South Australia. In the event that such proceedings are instituted, it may be that the appellant will seek to have the whole of the evidence of any alleged offence excluded on public policy grounds by reason of the illegal police conduct. This Court has not heard argument on the question whether a proper exercise of the discretion would require the exclusion of the evidence in those circumstances. It should, however, be clear from what has been written above that the fact that illegal importation would not be an element of the charged offence would greatly reduce the weight of the considerations favouring an exclusion of evidence.”
Quite clearly, those dicta prompted the initiation of the proceedings now under review.
Following various preliminary skirmishes, the accused was ultimately tried and convicted on an ex officio information of the State Director of Public Prosecutions, which was expressed as under:-

“Information of the Director of Public Prosecutions
JOHN ANTHONY RIDGEWAY
is charged with the following Offence
Statement of Offence
Possession of Heroin for Sale. (Section 32(1)(e) of the Controlled Substances Act 1984.)
Particulars of Offence
John Anthony Ridgeway on the 31st day of December 1989 at North Adelaide, knowingly had heroin, a prohibited substance, in his possession for the purpose of selling it to another person.”

It is stating the obvious that, as foreshadowed in the joint judgment to which I have referred, such charge did not require proof of any element of importation.
It is necessary, before proceeding to a consideration of the specific issues debated on the appeal, to stress one particular aspect of the factual history.
Although, in a sense, this was an entrapment situation, it was not the case that the initiative for importation of the heroin lay with the authorities. The evidence clearly revealed that, at all material times, the appellant was the prime instigator of what occurred. In reality the RMPF and AFP did no more than facilitate the entry of the drug without hindrance.
The appellant communicated with Lee by lettergram, overseas telegram and telephone to persuade him to procure the heroin and then bring it into Australia. He also travelled to Singapore twice to meet Lee there to arrange the transaction. He did so in breach of his own parole conditions, using his brother’s passport. Lee initially expressed reluctance to do as the appellant asked, because of what he said was the risk involved. However, he was strongly pressed by the appellant to assist in the scheme. At one stage the appellant handed over $A4000 to Lee to fund the purchase of the heroin. Lee was to receive $A9000 for procuring the heroin and acting as courier. This was the sum actually paid to him on delivery, as already recited.
It is readily apparent then that this was not a situation in which the offence was instigated by the police. The appellant planned and initiated the scheme from the outset. It would never have occurred but for his unilateral pressuring of Lee.
The appellant initially pleaded twelve grounds in respect of his appeal against conviction. One of these was formally abandoned at the hearing and another was amended. In the event Mr Abbott QC, of senior counsel for the appellant, only sought to argue certain of them in detail. He merely relied upon his written outline as to the balance.
I first turn to the major points developed in argument.
He first sought to challenge the refusal of the learned trial judge to exercise his discretion to exclude the evidence of the police witnesses and Lee on public policy grounds. In effect, he argued that the deliberate illegality of the conduct of the authorities in bringing the heroin into Australia, which had been condemned by the High Court, necessarily tainted the prosecution case in relation to the charge brought by the State Director of Public Prosecutions.
Mr Abbott QC contended that what he termed the “federal illegality” associated with the importation did not cease on the importation of the heroin, but flowed on into the commission of the alleged offence under the State legislation.
In this regard he argued that:-
the illegality was not merely an inducement to the appellant - the appellant would not have committed (or been able to commit) the offence charged were it not for the illegal conduct of the prosecution witnesses;

it was the AFP who instigated the whole incident;

they provided money for the purchase of the heroin;

the AFP initiated relevant meetings;

they endeavoured to “inculcate” the accused;

the illegal conduct of the AFP and those associated with them was actually condoned by high authority and no persons other than the appellant were charged; and

the whole operation was mounted by federal officers and those working with them in flagrant disregard of State law and in contravention of the provisions of the Controlled Substances Act 1984.

He went on to submit that such a scenario necessarily bore on two quite separate discretions recognised by the High Court in Ridgeway v The Queen (supra).
The first of these was that discussed in Bunning v Cross (1978) 141 CLR 54 at 74-75, ie a discretion to exclude evidence, where that evidence is the product of unfair or unlawful conduct on the part of the authorities. As Stephen and Aickin JJ there pointed out the issue is not so much one of fairness to the accused, in the direct sense, but is, rather, a recognition of society’s right “to insist that those who enforce the law themselves respect it, so that a citizen’s precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may remain unimpaired”. What is involved is the well known and understood balancing process - that of 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. In that balancing process factors such as the seriousness of the offence charged and of fairness to the accused are relevant, but are by no means the only matters to be taken into consideration.

The second was what Mr Abbott QC described as the quite separate “Ridgeway discretion”. He drew attention to the distinction sought to be drawn in the joint judgment of Mason CJ and Deane and Dawson JJ between illegally procured evidence and an illegally procured offence, given the absence in Australian law of any substantive defence of entrapment. He invited attention to the following discussion, by their Honours, of the two separate concepts:-
“... the considerations of ‘high public policy’ which justify the existence of the discretion to exclude particular evidence in the case where it has been unlawfully obtained are likewise applicable to support the recognition of a more general discretion to exclude any evidence of guilt in the case where the actual commission of the offence was procured by unlawful conduct on the part of law enforcement officers for the purpose of obtaining a conviction. In both categories of case, circumstances can arise in which the need to discourage unlawful conduct on the part of law enforcement officers and to preserve the integrity of the administration of criminal justice outweighs the public interest in the conviction of those guilty of crime. In both categories, the objective of the unlawful conduct is the obtaining of curial advantage: the use of the unlawfully procured evidence in one category; the obtaining of a conviction for the unlawfully procured offence in the other. In both, the reception of the evidence by the courts is a critical step in the obtaining of that objective. If, in relation to either category, no judicial discretion existed to prevent the curial advantage being derived from the unlawful conduct, statements of judicial disapproval would be likely to be hollow and unavailing and the administration of justice would be likely to be ‘demeaned by the uncontrolled use of the fruits of illegality in the judicial process’. Indeed, there is much to be said for the view that the considerations favouring the exclusion of unlawfully procured evidence of a crime which had already been committed are likely to be less compelling than those favouring the exclusion of evidence of a crime which would never have been committed but for such unlawful conduct on the part of law enforcement officers designed to bring about its commission.
Moreover, the two principal considerations weighing against the recognition of a judicial discretion to reject evidence of an offence procured by illegal conduct on the part of law enforcement officers were also the principal considerations which weighed against the recognition of the discretion to reject unlawfully procured evidence. The first of those considerations is that to which reference has already been made, namely, the legitimate public interest in the conviction of those guilty of crime. In Ireland and Bunning v Cross, that consideration was rightly seen as not justifying a denial of the existence of a discretion to exclude unlawfully procured evidence but as constituting the primary factor to be put in the balance against the considerations favouring a rejection of the evidence in determining how the discretion should be exercised in all the circumstances of a particular case. It should be similarly seen in relation to a discretion to exclude evidence of an offence procured by unlawful conduct. The second of those considerations lies in the separation, under our system of the administration of criminal justice, of executive and judicial functions. The function of determining whether, in the circumstances of a particular case, a criminal prosecution should be initiated and maintained is essentially that of the Executive. The function of hearing and determining the prosecution, when initiated and while maintained, is that of the courts. Nonetheless, it has long been established that once a court is seized of criminal proceedings, it has control of them and may, in a variety of circumstances, reject relevant and otherwise admissible evidence on discretionary grounds or temporarily or permanently stay the overall proceedings to prevent abuse of its process. One such discretion is the discretion to exclude unlawfully procured evidence on public policy grounds.”
As I understood his argument Mr Abbott QC sought to contend that it was evident from the reasoning of their Honours both that the weighing process in the two types of situation was necessarily different; and that there were also two categories of “procurement” type cases, each of which attracted different considerations. He drew attention to these dicta:-
“In one important respect, the factors militating against the exclusion of all evidence of an illegally procured offence are likely to be more weighty than the factors militating against exclusion of illegally procured evidence. The discretion to exclude all evidence will ordinarily fall to be exercised on the assumption that the offence has been committed and that the effect of the exclusion of the evidence is that the prosecution will be shut out completely from proving guilt and that a guilty person will walk free. In contrast, the discretion to exclude illegally procured evidence will ordinarily be exercised on the basis that guilt or innocence remains an open question to be determined by reference to any other admissible evidence which the parties may see fit to place before the court. On the other hand, in the worst cases of entrapment by illegal police conduct, the weight to be given to the public interest in the conviction and punishment of those guilty of crime may be lessened by the diminution in the heinousness of the accused’s conduct resulting from (for example) the fact that he or she was an otherwise law-abiding person who would not have offended were it not for the ‘inordinate inducements’ involved in the illegal conduct.
References in this judgment to an offence being ‘procured’ by illegal conduct on the part of law enforcement officers are intended to refer to two distinct, but possibly overlapping, categories of case. The first category consists of cases in which the police conduct has induced an accused person to commit the offence which he or she has committed. In that category of case, the public interest in the conviction and punishment of those guilty of crime is likely to prevail over other considerations except in what we would hope to be the rare and exceptional case where the illegality or impropriety of the police conduct is grave and either so calculated or so entrenched that it is clear that considerations of public policy relating to the administration of criminal justice require exclusion of the evidence. The other category of case is where illegal police conduct is itself the principal offence to which the charged offence is ancillary or creates or itself constitutes an essential ingredient of the charged offence. An example of that category is a case where a person is charged with receipt or possession of stolen property in circumstances where not only the supply, but the actual theft, of the stolen property had been organised by the police for the purpose of obtaining the conviction of the person to whom it is supplied. In that category of case, the police illegality and the threat to the rule of law which it involves assume a particularly malignant aspect. Even in such a case, if the police conduct is disowned by those in higher authority and criminal proceedings have been instituted against the police as well as the accused, it is unlikely that considerations of public policy relating to the integrity of the administration of criminal justice would require the exclusion of evidence either of the accused’s offence or of the particular element of it created by the police illegality. If, however, the illegal police conduct would appear to be condoned by those in higher authority and it does not appear that criminal proceedings have been brought against the police, those considerations of public policy will be so strong that an extremely formidable case for exclusion will be raised. ... ”
Mr Abbott QC asserted that a review of the ruling given by the learned trial judge in relation to the appellant’s application indicates that he did not recognise the distinctions above adverted to and, thus, failed to address the situation in the appropriate manner envisaged by the High Court.
It seems to me that, with all due respect to the learned trial judge, there is force in that contention.
A perusal of his ruling indicates that, having concluded that the Criminal Law (Undercover Operations) Act 1995 had no application to the facts of the case, the learned trial judge appears simply to have focused his attention on the tests postulated in The Queen v Ireland (1970) 126 CLR 321 and Bunning v Cross (supra).
He said that the involvement of the federal agents in an illegal transaction did not form any necessary part of the prosecution case in relation to the State offence. He declined to exercise his discretion adversely to the prosecution, stating that he had had regard to the question of unfairness to the accused (as adverted to in Bunning v Cross) and had also brought to account in the requisite balancing exercise the question of the delay which had occurred. He went on to comment:-
“... When one excludes from the scales the illegal importation as an element of the offence, the public interest in securing the conviction and punishment for such a serious offence is sufficient to outweigh the countervailing considerations - in particular the fact that those in authority gave Mr Ridgeway the opportunity to commit the offence and participated therein themselves. Whilst I have exercised my discretion with regard to the particular facts now before me, I note the manner in which the Court of Criminal Appeal proceeded in Marriott v R (judgment delivered 15 November 1995).
I refer to the remarks of Cox J in R v Martelli (Judgment No S5330) and his review of police practices. I do not consider that the admission of the evidence which the prosecutor now seeks to adduce would affront the public conscience. Moreover, I do not consider that relevantly there will be any unfairness to the accused by the admission of the evidence of the ‘controlled delivery’. The accused opened negotiations with Lee and was a willing participant in the events thereafter; he acted within the limits of his own criminal disposition when given the opportunity. In my opinion upon the material now before me the balance favours the reception of the evidence which the prosecution seeks to lead.”
It does seem that no reference was made by him to the special considerations said, by the High Court in Ridgeway v The Queen (supra), to be applied to illegal police conduct inducing the commission of the offence.
In terms of the reasoning in Ridgeway v The Queen (supra) it seems to me that, if the police conduct, in relation to the procurement of the offence charged, was in fact illegal - as Mr Abbott QC says it was - then it necessarily, prima facie, attracted the strictures adverted to by Mason CJ and Deane and Dawson JJ as above recited. I think that it may well be said that not only did the Australian authorities procure the commission of the offence - they were party to it. The possession and sale of the heroin by their agents was no less an offence against South Australian law than was that of the appellant. This throws up a need to consider whether, in all of the circumstances, an admission of the impugned evidence would be seen to undermine the integrity of the administration of justice and constitute a failure to protect the processes of the courts of justice. (See Nicholas v The Queen (1998) 151 ALR 312 at 325, 342.)
However, as rapidly emerged on the hearing of the appeal, the evidence in this case begs the question as to whether or not any such illegality was regularised by the enactment of the Criminal Law (Undercover Operations) Act.
S4 of that statute confers legal immunity on an “authorised participant” taking part in approved undercover operations in accordance with the terms of any relevant approval. This legislation, notoriously, was a response, on the part of the legislature to the decision of the High Court in Ridgeway v The Queen (supra).
Moreover, the statute expressly operates retrospectively in certain circumstances.
“Undercover operations” are defined to mean operations (which may include conduct itself illegal, but for the statute) of which the intended purpose is to provide persons engaging or about to engage in “serious criminal behaviour” an opportunity, inter alia, to manifest that behaviour.
The term “serious criminal behaviour” is, itself defined as meaning behaviour involving the commission of an indictable offence, an offence against the Controlled Substances Act, or offences against a variety of other State enactments.
“Authorised participant” is, itself, defined as including, in the case of operations that began before the commencement of the statute, a person authorised by a law enforcement agency to take part in the operations.
The definition of the phrase “approved undercover operations” includes undercover operations approved by a law enforcement agency before the commencement of the statute that are of a type that could have been reasonably approved under the legislation, if it had been in force when the operations commenced.
In my opinion Chong and Lee and the federal operation all potentially fell within these provisions. It matters not, as Mr Abbott QC declaimed, that they had no intention of involving or seeking co-operation from the State police at the time. Had Ridgeway v The Queen (supra) then been decided and had the regularising statute then been in place there is no doubt in my mind that their attitude would have been entirely different. There is every reason to conclude that the federal authorities could, in such circumstances, have sought the requisite authority.
Furthermore, I do not agree with his submission that, had approval been sought, it could not reasonably have been granted. As Cox J pointed out in The Queen v Albu and Anor (1996) 65 SASR 439 at 449, what is required is a judgment as to a hypothetical situation. One of the factors to have been borne in mind was the bona fide belief of the law enforcement agencies at the time as to the legal position, coupled with the clear evidence that, at all times, the appellant was the initiator of what took place.
In those circumstances the ground of appeal argued by Mr Abbott QC cannot succeed.
If I am wrong in that conclusion it by no means follows that any failure of the learned trial judge to consider an exercise of a so-called “Ridgeway discretion” (see Brennan CJ in Nicholas v The Queen at 325) leads to the result that this appeal should be allowed.
I accept that, as already indicated, there are weighty factors which would support an exercise of it in favour of the appellant. However, such an exercise is not automatic. The requisite balancing exercise still has to be executed. In the instant case these factors are of critical importance:-
as I have already recited, it was the appellant and not the federal agents who initiated and at all times promoted and developed the project to bring the heroin into Australia. He clearly importuned Lee to procure the heroin and act as courier. It was he who paid for this to be done. It was sheer chance that, unbeknown to him, Lee had become a registered informer with the RMPF. That this is a relevant consideration emerges from Marriott v The Queen (1995) 126 FLR 119 at 125, quite apart from the fact that it focused on legislation which was not in pari materia with the Controlled Substances Act.

the quantity of heroin involved was large and would have had a serious impact on the community had it been resold by the appellant.

the federal authorities did not act in cynical, knowing breach of the South Australian law. On the contrary, they bona fide thought that their actions were both lawful and proper. They merely facilitated an enterprise which had been engineered by the appellant in the first instance. The legislature subsequently moved swiftly to regularise situations of this type.

As was pointed out by Brennan J in Ridgeway v The Queen (supra) the fact that the primary illegal importation of the heroin was not an element of the offence now under consideration greatly reduces the weight of considerations favouring an exclusion of the relevant evidence. That dictum seems to have been in accord with the apparent views of Mason CJ and Deane and Dawson JJ. All four judges quite clearly envisaged the possibility and potential propriety of a proper prosecution being launched pursuant to the State statute.
Accordingly, whilst I have difficulty with the process of reasoning adopted by the learned trial judge (including his reliance on Marriott v The Queen (supra), which was based on legislation different to the Controlled Substances Act provision) I nevertheless accept that he quite reasonably and properly declined to exclude the evidence in question. The public interest consideration in convicting the appellant of a serious offence against the drug laws of this State, in the particular circumstances in which he initiated the whole transaction and carried it into effect, far outweigh any element of unintended illegality involved.
I would reject this ground of appeal.
It was next argued on behalf of the appellant that the learned trial judge erred in declining to stay the proceedings on the ground of abuse of process - on the footing that the prosecution pursuant to the provisions of the State statute had the practical effect of placing the appellant in a situation akin to double jeopardy and by virtue of the delay which had occurred in launching the State prosecution.
In advancing that contention Mr Abbott QC was unable to point to any significant specific prejudice which resulted to his client due to the lapse of time involved. Rather, he based his contention on what was said to be the oppressiveness of requiring the appellant to face a second prosecution for what was, substantially, the same conduct as that in issue in Ridgeway v The Queen (supra) a long time after the alleged events.
Mr Abbott QC conceded that, although the situation could not be categorised as one of double jeopardy in the strict legal sense of that word, nevertheless, it fell within the principle discussed in Walton v Gardiner (1997) 177 CLR 378.
That case related to a series of complaints brought against three medical practitioners, which had been referred to a Medical Tribunal, as disciplinary proceedings.
In 1986 certain complaints, so referred, alleged misconduct in the treatment of patients at a private hospital between 1973 and 1977. A court ordered a permanent stay of complaints against two of the practitioners on the ground that they constituted an abuse of process, by virtue of prolonged delay after the facts were known.
Following the findings of a later Royal Commission, fresh complaints were made against the practitioners in 1991. Although they were not precisely the same as the earlier complaints, they arose out of the same pattern of professional conduct as had given rise to those complaints and raised issues which substantially overlapped those inherent in the first complaints.
The New South Wales Court of Appeal stayed the fresh complaints because they were unfairly and unjustly oppressive.
The High Court agreed that the substance of the fresh complaints corresponded, to a very large extent, with the substance of the initial complaints. As was said, the earlier jeopardy of loss of the right of practice and of pecuniary penalty to which the respondents had been subjected in relation to an alleged inappropriate regime of medical treatment “were renewed in the proceedings based on more generalized and wider, but essentially similar, complaints”.
The majority of the High Court held that a power to stay as an abuse of process may be exercised if, in the particular circumstances, it appears that a continuation of proceedings would involve unacceptable injustice or unfairness. It is not necessary to prove improper purpose, or that a fair hearing will not be possible. They stressed that what is involved is a weighing process, in which notions of fairness akin to those which underlie the common law principle against double jeopardy may properly be taken into account.

Mr Abbott QC submitted that the only significant difference between the charge of possession of a prohibited import under s223B(1) of the Customs Act and the charge of possession for sale under the Controlled Substances Act was the element of importation. He contended that the learned trial judge erroneously restricted his consideration to aspects of potential unfairness and delay. He did not advert to the principle discussed in Walton v Gardiner (supra).
He argued that the elements of oppressiveness which combined to justify a stay were:-
The fact that the essence of both offences was the element of possession;

The substance the subject of the offence was identical;

The witnesses were identical and would give the same evidence;

No new evidence was proposed to be called;

The accused could have been charged with this offence in 1990 on the earlier information;

There has been unnecessary delay on the part of the prosecution;

The appellant has had to endure two trials on the same issue and facts;

The appellant has been in custody on the former charge only to be released and re-charged;

Between the time of the initial trial and the new trial the appellant has since married and started a new life;

(10)The authorities themselves had committed illegalities under the Controlled Substances Act 1984 (SA).

It is, at once, to be observed that these factors range rather beyond the issue of oppressiveness, as discussed in Walton v Gardiner (supra). They overlap the issue of exercise of discretion as expounded in Ridgeway v The Queen (supra).
I agree with Mr Rice, of counsel for the respondent, that it is an inaccurate oversimplification to suggest that the ingredients of the two offences under consideration differ only in relation to the element of importation.
The offences are, in fact, markedly different.
That alleged under s233B(1) of the Customs Act required the prosecution to establish that the appellant had been in possession, without reasonable excuse, of that which was a prohibited import. By way of contrast the offence now under consideration required proof that the appellant was knowingly in possession of a prohibited substance for the purpose of selling it to another person.
The only common element is, in fact, that of possession.
In all fairness to the learned trial judge it must be said that the present issue based on Walton v Gardiner (supra) does not seem to have been fully developed before him. It is small wonder that he made no reference to it.
Mr Rice argued that the instant case was a far cry from the extreme situation which arose in Walton v Gardiner (supra). Whilst there was, undoubtedly, some area of overlap in relation to the element of possession, the essential nature of the two offences in question was quite different. Moreover, there had not been any final resolution of the Customs Act charge on the merits. The rationale which led to a stay of it focused on an activity which does not constitute an element of the present offence. True it was that the possession of the heroin by Chong and Lee was unlawful when it was handed over to the appellant - but that would always have been so, whatever had been its original source.
I consider that this is an important feature. If illegality of possession, per se, operated to exclude the prosecution evidence in this case, then it follows that all cases which involved an undercover supply of a prohibited substance to an accused person would, necessarily, fail. I do not believe that, in an area in which detection and conviction of drug dealers is notoriously difficult, the public interest demands such a conclusion. The situation is quite the contrary. What must always be in contemplation is the propriety and appropriateness of police actions in a particular set of circumstances. One question which must always be posed and answered is as to whether, on the facts, it must be concluded that an admission of the relevant evidence would result in the processes of the court improperly being employed to confer curial advantage on the prosecution, by reason of unlawful conduct, in a manner calculated to impair the integrity of criminal justice administration.
I do not see the present situation as falling in that category, or as exposing the appellant to a situation any different to that which would have been obtained had he initially been charged with both the federal and State offences and a verdict not being taken on the latter, because of a verdict on the former. Had that been the situation, he would have remained liable to retrial on the State offence, consequent upon a quashing of the verdict on the federal charge.
It seems to me that the majority of the High Court in Ridgeway v The Queen (supra) must have had these considerations in mind. Their dicta concerning liability for trial on a charge of a State offence is otherwise inexplicable.
There is, I consider, no substance in this ground of appeal.
Mr Abbott QC then complained that the learned trial judge fell into error in setting aside a defence subpoena directed to the AFP. This sought production of documentation on its file related to an investigation into possible drug dealings by persons associated with the racing industry. This investigation was known as “Operation Racehorse”. It principally focused on activities in Western Australia. It was said by the AFP that the documentary records were vast and largely of a nature of an intelligence log. The AFP objected to production both on the grounds of immunity and also that the subpoena was vexatious and oppressive.
The learned trial judge set aside the subpoena as an abuse of process.
Inter alia, he had this to say:-
“As at October 1989 Australian Federal Police were maintaining an intelligence log relating to an investigation concerning possible drug dealings by persons associated with the racing industry; the administrative title ‘Operation Racehorse’ was given to the AFP investigation. Mr Lee was identified in the intelligence reports as a person of interest. On 6 October 1989 an intelligence report from Kuala Lumpur incidentally identified Ridgeway; the report notes that ‘... Lee born 21.2.57 (project Racehorse target) has been approached by Australian John Ridgeway AKA Allen to bring heroin to Australia. It is expected that the destination will be Adelaide at this time. Lee and Ridgeway were cell mates in Yatala ... ’
At p63 (or thereabouts) of the transcript of the hearing before me of 15 January 1997 the prosecutor, Mr Rice explained to me how the AFP opened a new operations log bearing the code name ‘Operation Decade’ for the purpose of specifically accommodating the activities of Mr Ridgeway.
Whilst I am prepared to order the production of material relating to Operation Decade (subject to consideration of immunity and privilege claims for specific documents) I treat Operation Racehorse differently.
In my view Mr Petraccaro of counsel for the accused has not been able to identify a basis upon which he should be entitled to require production or to see the material now in question. He can do no more than hope and speculate as to what, perchance, it may be his client’s good fortune to find. I do not consider it to be ‘on the cards’ that the documents now in question will materially assist the defence. (see Alister v R (1984) 154 CLR 404 at 415).
I am told that the documents associated with Operation Racehorse are so voluminous as to require a truck to bring them to Adelaide. This is not a case in which I would be disposed to take the documents into custody at this stage and then examine them for myself. Such a course would be oppressive. I take the view that in issuing this subpoena (in its application to Operation Racehorse), the defence is merely seeking (in a figurative sense) to troll a fishing line through the documents in the hope of hooking something worthwhile.”
Mr Abbott QC asserted that the material sought bore on Lee’s credit. This was, he said, in issue because the defence case was that the bag containing heroin had, as he put it, “been foisted on Mr Ridgeway in the hotel room and then he had been pushed outside the door”. He also claimed that an issue arose as to the bona fides of the AFP, how much heroin had been imported in total and how much money they had been given.
In the course of debate he was unable to demonstrate what material was really in issue and where it would, potentially, have taken the defence beyond the admitted facts that the AFP were associated with Lee in illegally importing heroin into Australia and (potentially) may have been involved in other activities similar to that involving the appellant.
It is to be remembered that the actual text of the subpoena, as issued, required production of:-
“All documents in relation to an Australian Federal Police Operation Code Named ‘Operation Racehorse”, including Australian Federal Police running sheets and any correspondence between the Malaysian Government and the Australian Government relating to the matter.”
It is difficult to conceive a subpoena being expressed in wider terms and impossible to conclude other than its effect is vexatious and oppressive in the extreme. Its issue was, patently, a Micawber like trawling exercise, based on little more than an outside chance that something useful might turn up. It is small wonder that the learned trial judge ruled as he did. There was nothing advanced by Mr Abbott QC which gave rise to any conviction that the AFP file was likely to reveal anything of real relevance or importance to the present case. How, on the information before the court, it can, realistically, be said that it is “on the cards” that the documents sought will materially assist the defence in any relevant manner (Alister and Ors v The Queen (1984) 154 CLR 404 at 414) utterly escapes me. There is simply no identified contentious issue to which the material sought is likely to be relevant.
I would summarily reject this ground of appeal.
In his outline of argument Mr Abbott QC briefly addressed certain other grounds of appeal. I will discuss them seriatim.
First, he complained that the learned trial judge failed to direct the jury as to the dangers of acting on the evidence of the police and other authorities who, he said, were, in effect, accomplices in the crime of which the appellant was convicted.
It was conceded that an adequate warning of this type was given concerning the evidence of Lee. However, it was submitted that a similar approach ought to have been adopted in relation to the AFP witnesses and Chong.
What the learned trial judge did say was as under:-
“... So, as far as the police are concerned they have demonstrated that they have been prepared to break the law of South Australia and of Australia for the purpose of establishing a case against the accused. The breaches of the law are serious and once a person is shown as being prepared to step outside the law to secure a particular end, one is entitled to ask what lengths will this person go to secure his or her object.
The police put considerable resources into Operation Decade. You should consider the possibility that in their enthusiasm or dedication in their task, for securing the intended result when the trap was set and sprung, one or more of the police witnesses may have been tempted to describe what he or she hoped to be the case rather than what actually happened. I do not say that this occurred. It is evident that the manner in which the police proceeded was in accordance with arrangements made at high levels and in this case in the interests of, and in the course of promoting good international relations. Indeed Mr Rathjen and Mr Sweeney gave evidence that they were not aware that at the time of these events that their activities were indeed illegal. Nevertheless, the fact remains that they were illegal and I have got to draw your attention to that fact. Despite the motives of all those who may be involved, the fact remains that there has been a serious breach of the law and you are entitled to consider the prosecution evidence in that light.
However deceit and infiltration do have a legitimate part to play in the detection of crime and obtaining proof with a view to prosecution.
You see, it is my job as a judge to respect the law and encourage others to respect the law. And there is no doubt that this heroin was brought into Australia in breach of the Australian Customs Act. No‑one has authority to do that. And the police or Mr Chong and Mr Lee had possession of this heroin in South Australia which is a breach of our Controlled Substances Act. It is my duty, despite the evidence that has been given by Mr Rathjen and Mr Sweeney and despite the fact that arrangements have been approved, apparently at high levels of government, nevertheless, to draw your attention to the fact that illegality has occurred.”
It is true that this direction fell short of a fully developed, explicit “accomplice” warning of the nature of that actually given in relation to Lee’s evidence.
However, the situation with the AFP witnesses and Chong was quite different to that of Lee. Lee was conceded to be a police informer and was, in a realistic sense, an accomplice of the appellant. A full warning in his case was clearly mandated by the circumstances.
By way of contrast it could not be said that the other witnesses were accomplices in the real sense. True it is that their actions were demonstrated to have been unlawful. It is equally true that those actions were not the product of a knowing, cynical breach of the law. Quite the contrary. The evidence plainly indicated that, albeit erroneously, they bona fide believed their conduct to be proper and administratively sanctioned at the highest level - in accordance with prescribed departmental procedures.
In such circumstances it is my opinion that the direction given, which alerted the jury to view their evidence with caution because of the illegality in fact involved, was appropriate and adequate. It is not without significance that, at the conclusion of the summing up, experienced trial counsel for the accused, when afforded an opportunity of doing so, made no complaint of any deficiency of the type now sought to be identified.
As was said in Karzis v The Queen (Court of Criminal Appeal, 19 May 1993, S3938, unreported):-
“The responsibility of counsel does not end when he sits down after finishing his address to the jury. He cannot just go to sleep during the summing up. ... He has a responsibility to listen carefully to what the judge says, to raise points afterwards when asked, so that errors and imperfections are corrected.
Not only does the silence of counsel in this case strongly suggest that the summing up on this point was felt to be adequate in the atmosphere of the trial (Guy v The Queen (1991) 57 A Crim R 21 at 30-1), but also it tends to indicate that the point now sought to be taken may have been of no real significance at the time (Gallagher v The Queen (1997) 96 A Crim R 300). The fact that no relevant exception was taken on this occasion provides such an indication. Quite frankly, this ground smacks of a desperate, ex post facto, combing through the summing up in an attempt to discover some theoretical deficiency in it. In my view, this is tending to become an all too familiar exercise in relation to criminal appeals which ought, firmly, to be discouraged.
Second, it was contended that the direction in fact given as to corroboration in relation to Lee’s evidence was wrong in law, in that “the learned trial judge failed to instruct the jury to limit the use to which they could put the corroborative evidence.”
The specific complaint made is that, having listed aspects of the evidence which could be used as corroboration, the learned trial judge said:-
“You will consider these matters in relation to the whole of the evidence in the case which you consider compelling or persuasive.”
Although no complaint was made at the conclusion of the summing up, it is now said that this direction was inappropriate, because it would have led the jury to believe that they could use the corroborative evidence not only in relation to that of Lee, but also as corroborating all of the other evidence in the trial which the jury considered “compelling or persuasive”.
Several comments are attracted by this criticism.
First and foremost, the point above made concerning a failure of experienced trial counsel to complain at the time is equally pertinent to this ground of appeal.
Second, I do not consider that, when the sentence sought to be impugned is read in context, it invited the jury to do what is asserted by Mr Abbott QC at all. It has, impermissibly, been plucked out of context and given an emphasis which was never intended. No doubt that is the reason why no exception was taken to it at the time. It seems to me that what the learned trial judge was really saying was that, in assessing whether or not and how to use the items of potentially corroborative evidence, those items ought to be looked at and evaluated in the context of that evidence as a whole which is found to be compelling or persuasive.
Finally, once again, this ground appears to me no more than a plucking at straws in an attempt to dissect or dismember the summing up in a manner which this court has unequivocally condemned on a number of occasions in the past.
I would reject it.
The last matter complained of arose from the decision of the learned trial judge, made on the morning of the last day of the trial, to discharge one of the jurors and continue the trial with the remaining 11 members.
It was reported, in absence of the jury, that, overnight, one of the jurors had been arrested for the offences of cultivation of indian hemp and possessing it for sale. It was said that he had admitted participation in what was quite an extensive cultivation project involving three partners and three locations.
On the morning in question the juror in question had been kept segregated from the other jurors, whilst the situation was discussed between the learned trial judge and counsel in closed court.
The learned trial judge caused the juror to come into court and answer certain questions on oath, after first having advised him of his right not to incriminate himself.
The juror re-confirmed that he had no prior knowledge of the appellant. He said that he had had no social interaction with the other jurors outside of the court precincts. Steps were taken to recover any notes made by the juror from where they had been left in the jury room. The juror said that, since his arrest, he had had no contact with any of the other jurors. He testified that, during the course of the trial, he had had no discussion with other jurors on the topic of drugs, other than in relation to the evidence of the case being tried.
The learned trial judge elected to discharge the juror who had been arrested and continue the trial with eleven jurors, pursuant to s56 of the Juries Act 1927 (SA). He did so over the objection of counsel for the appellant.
After the juror had been discharged the learned trial judge brought the other jurors into court, sought from them an assurance that it remained the situation that there was no reason why each member could not give an objective judgment in the case and told them that they would not be able to separate until a verdict was rendered. They were simply informed that circumstances had arisen whereby it was not possible for the discharged juror to continue to serve on the jury.
That process was completed by lunch time. Counsel’s addresses had concluded the preceding afternoon. The summing up commenced immediately after lunch and the jury finally retired to consider its verdict at 4.24 pm. They returned a unanimous verdict at 6.15 pm.
In his outline Mr Abbott QC conceded that, in normal circumstances, the continuance of a trial with eleven jurors would be appropriate. However, in this case, it was unsafe to do so because of:-

the fact that the juror’s misconduct involved alleged drug offences;

he had apparently made admissions concerning those offences; and

no-one could be satisfied that the presence of such a person on the jury did not influence or infect their deliberations.

So it was that he contended that there was a risk that the jury was influenced by the discharged juror and that the appellant did not receive a fair trial.
All that need be said is that, at the end of the day, what was involved was an exercise of judgment and discretion on the part of the learned trial judge. His ultimate decision followed the taking of careful and detailed steps by him to ensure that the jury had not been tainted and would not even have become aware of what had occurred during the preceding night.
There is simply no reason to think that the exercise of discretion was illfounded, or inappropriate in the circumstances. This ground of appeal has not been made out.
For the foregoing reasons I would dismiss the appeal against conviction.
There remains the appellant’s appeal against sentence. He complains that the sentence of nine years and two months (after giving credit for four months already served), with a non parole period of six years and two months was manifestly excessive.
In the course of his sentencing remarks, having commented on the inherent seriousness of the offence, the learned trial judge made these points:-
The appellant had been subjected to considerable inconvenience and stress as a consequence of the federal prosecution. This included having been sentenced to 12 years imprisonment with a non parole period of 8 years;

The appellant had actually served two years and five months unexpired parole period in respect of a breach of parole, being the conduct the subject of both the federal charge and the State charge;

The appellant was said by counsel to have “turned over a new leaf”, wished to make a new life with his recently married partner and had employment available to him; and

In view of the appellant’s criminal history, the fact that the offence was committed whilst on parole and the calculated nature of the offence, a serious view had to be taken. Deterrence must be a dominant factor.

Mr Abbott QC submitted that, given the advent of the truth in sentencing legislation, the sentence actually imposed equated to a term slightly in excess of that originally imposed in relation to the Customs Act offence - a result which the learned sentencing judge positively did not intend. Moreover, had the appellant been sentenced for the State offence at about the time when he was actually sentenced for the federal offence, he would have been entitled to remissions which are now denied to him. It was further contended that, despite what was said by the learned trial judge, it is difficult to see how any significant allowance had in fact been made for the inconvenience, uncertainty and stress to which the appellant had been entitled. Equally, it was difficult to perceive any practical allowance for the other mitigating factors above referred to.
Finally, it was contended that some discount should have been applied as a mark of the disapproval of the Court of the illegal conduct of the federal agents and the entrapment aspects.
In my opinion the lastmentioned aspect is of no weight at all. Whilst, in a sense, this was an entrapment situation, the plain fact of the matter was that the appellant had firmly resolved to commit the offence in any event. He had made it clear that, if Lee would not participate, he would seek the assistance of someone else. Furthermore, as I have already pointed out, this was not a situation in which the authorities knowingly embarked on conduct which was unlawful. Those immediately concerned bona fide thought that their actions were properly sanctioned. The parliament has since regularised such situations.
As to the other aspects relied on Mr Rice acknowledged that the sentence imposed was what he described as “moderately severe”. But he made the point that this was serious, deliberate offending embarked upon whilst the appellant was still on parole in respect of other drug offences. The factors of personal and general deterrence had to loom as paramount considerations.
There is no doubt in my mind that, given the practical ceiling of what had earlier been done in relation to the sentence for the federal offence, this offence called for a severe sentence. Prima facie, some allowance ought to have been made for the mitigating factors of the stress, uncertainty and description caused by the train of events which actually occurred and the possibility of some positive steps towards rehabilitation which were identified. On the other hand the aggravating features of the calculated offending, during a period of parole for other drug offences must be taken into account. This was no spur of the moment conduct. It was a plan hatched over a substantial period of time.
Two features which have caused me to pause and reflect are whether the totality principle required some moderation of the total time to be served, bearing in mind the service of the unexpired period of parole; and whether the sentence imposed is unduly high having regard to the practical ceiling established by the sentence originally imposed by Burnett DCJ.
However, at the end of the day, I am not persuaded that the sentence imposed is inappropriate. I am in general agreement with what has been said by Lander J on this aspect.
I would, therefore, also dismiss the appeal against sentence.

LANDER J.I have had the advantage of reading the draft reasons of Doyle CJ. I agree for the reasons he gives that the appeal against conviction should be dismissed. It follows that I also agree with the reasons of Olsson J in relation to the appeal against conviction in so far as his Honour dealt with grounds of appeal not directly addressed by Doyle CJ.
I will only address the appeal against sentence.
Mr Ridgeway, who was born in 1950 and was thus a mature man of thirty-nine years when this offence was committed, was sentenced to nine years and two months imprisonment with a non parole period of six years and two months for the offence of possession of heroin for sale.
He has a significant criminal history. Prior to October 1983, Mr Ridgeway had been convicted of a number of relatively minor offences being behavioural offences and minor offences involving dishonesty. He had, however, been sentenced to be imprisoned on three occasions for short periods of time.
In October 1983, he was convicted, with a number of other men, of three counts of cultivating Indian hemp, one count of possessing that drug, one count of trading in Indian hemp and one count of possession for trading. In respect of those offences he was sentenced to two years and six months on each conviction for cultivating, the sentences to be cumulative; three years imprisonment for trading to be served concurrently with the conviction for cultivating; and three years imprisonment for possession for trading also to be served concurrently with the sentences for cultivating. At the same time he was also convicted of another count of cultivating Indian hemp on another property and he was sentenced to a further term of imprisonment of two years and six months cumulative on the other sentences of cultivation. He committed the offence of trading while on bail for the other matters. In the result he received a total head sentence of ten years. The sentencing Judge at the time imposed a non parole period of four years. The Crown appealed against the non parole period and the non parole period was increased by the Court of Criminal Appeal to eight years.
There can be no doubt that the offences for which he was convicted in 1983 must have been serious to have merited a total term of imprisonment of ten years and non parole period of eight years. There can be no doubt that the Court of Criminal Appeal believed the matter to be particularly serious and further, having regard to the increase in the non parole period, believed that Mr Ridgeway was not a good candidate for rehabilitation.
There were three separate plantations in which Mr Ridgeway was involved. On one plantation there were 3000 to 4000 plants, on another 1000 plants, and on the last 5000 to 6000 plants.
Bollen J, who gave the judgment of the Court of Criminal Appeal and with whom King CJ and Mohr J agreed, said of Mr Ridgeway’s participation in the main venture:
“This was a very large operation. It was premeditated in the sense that Debelis and Ridgeway deliberately conceived the idea, chose the place, chose the Hepworths as people who might succumb to temptation, put up the money and engaged labourers. They deliberately planned and executed all the work necessary to get a large illegal operation started. And it was profitable. It would have been more profitable had the police not found the last crop. No one, other than perhaps Ridgeway and Debelis or one of them, knows how much was made in all from the sale of Indian Hemp cultivated on Hepworth’s property. During argument Mohr J convincingly showed that a vast amount of money is somewhere. The Court and the police do not know where it is. As I say, perhaps Ridgeway or Debelis, or both, know. Ridgeway told an officer that he would have enough to live on when he came out. He meant that he would have enough to live well.”
Bollen J described Mr Ridgeway as the instigator of the whole crop. It was in respect of this crop that he was sentenced to three cumulative terms of two years and six months.
In relation to the Crown appeal the Court of Criminal Appeal said:
“Ridgeway pleaded guilty. He had an excellent work record with the E&WS. Nothing more could or can be said in his favour. He set up a large-scale illegal operation for gain. Again, we do not know how much he gained. He told the police he would be able to live on the proceeds when he came out. I have no doubt that he has a very large sum put away. In effect he has said so. Perhaps he will never offend again. If it is so it is because these crops have produced enough for him (a man of 33) to live comfortably. He had previous convictions between 1962 and 1979. None was for a ‘drug offence’.
Mr Martin submitted that the plea of guilty was ‘not brought about by any genuine contrition but rather ... to the sheer hopelessness of the matter ... and what is more he might as well do his time and come out and live on the proceeds’. Ridgeway’s comments to the police justify that submission. Yet some credit must be given for the plea which saves the State expense. I think that some credit should be given in sentence and in fixing a non-parole period. But he who pleads guilty out of a true contrition may expect more credit that he who pleads out of mere expediency of out of a realisation that there is no hope.
As Mr Martin said, Ridgeway instigated ‘multiple serious crimes’. There is nothing to suggest that he is contrite or that he wishes to mend his ways. He cares nothing for the seriousness of what he has done. I have accepted Mr Martin’s invitation to us during argument to re-read the statements that Ridgeway made to the police. I agree with Mr Martin that they “clearly display a total and complete indifference to the nature of the crimes and a pure self interest - trying to get out of it as best he could.”
Ridgeway is not a suitable candidate for parole. After his arrest, while he was on bail he committed the crime alleged in Count 11 - possession of a drug for trading. Even the experience of arrest and charge on these serious matters did not move him to give up activity with drugs. He should spend a long portion of his sentence fixed in prison. Her Honour’s fixing of 4 years is manifestly inadequate.”
The view of the Court Of Criminal Appeal proved to be correct. Mr Ridgeway was released from prison in February 1989 and within some months took up contact with Lee for the purpose of seeking to arrange, through him, for the purchase of heroin for importation and sale within Australia.
The timing of his release and contact seemed to suggest that Mr Ridgeway learnt little during the five or six years he served in prison between 1983 and 1989. He committed this offence very shortly after his release from imprisonment and whilst he was on parole. The unexpired portion of the non parole period was then in excess of three years and six months.
When he first came before the District Court Judge for sentencing in respect of the Commonwealth offence, which has subsequently been quashed, the District Court Judge imposed a sentence of imprisonment of twelve years in addition to the unexpired portion of the non parole period. In total that left Mr Ridgeway fifteen years, seven months and seventeen days to serve. The District Court Judge set a non parole period of eight years.
The appellant subsequently served the unexpired portion of the non parole period and four months of the sentences imposed in relation to the Commonwealth proceedings before the High Court quashed the conviction and stayed those Commonwealth proceedings.
The learned Judge in sentencing Mr Ridgeway in respect of the State offence, the subject of this appeal, took into account the fact that the appellant had served the unexpired portion of his non parole period and the further four months in excess of that non parole period and gave the appellant credit for the further four months served.
He took into account the inconvenience and stress which the appellant had suffered by reason of the multiplicity of proceedings in the Courts in this State and the High Court. He also mentioned that Mr Ridgeway claims that he has turned over a new leaf and was looking forward to making a new life with his new wife.
The sentence of nine years and two months was, after taking into account the four months already served, two years and six months less than that imposed by the District Court Judge. Both sentences were imposed in circumstances where the appellant would not be entitled to any remissions for good behaviour. The sentence imposed by the District Court Judge did not carry any remissions for good behaviour because it was a sentence imposed under Commonwealth legislation. The sentence imposed by the learned Judge, in this matter, carries no remissions because of the Truth In Sentencing legislation.
Effectively, therefore, if the original sentence imposed by the District Court Judge was right for the circumstances of the offence then the learned Judge, in this matter, has given the appellant credit for something like two years and six months imprisonment for all of the matters that were put to him.
I do not agree that the head sentence is manifestly excessive.
This was a very serious crime involving possession of heroin for sale. The quantity of heroin was equivalent to about 140.4 grams of pure heroin. The heroin was possessed by a man who had previously been sentenced to imprisonment for ten years for drug related offences. The crime was committed shortly after release from gaol and whilst the appellant was on parole.
He clearly learnt nothing whilst serving his first sentence or whilst on parole for it. In my opinion, it cannot be said that the head sentence was manifestly excessive.
The learned Judge imposed a non parole period of six years and two months again giving four months credit for the time served before the High Court quashed the conviction for the Commonwealth proceedings.
The non parole period was, in my opinion, at least appropriate. This man previously was given a non parole period of eight years. That did not deter him from immediately committing a very serious offence on his release on parole. There is no reason apart from the stress and inconvenience to show Mr Ridgeway any leniency. To impose a sentence less than the 1983 sentence would, in my opinion, send the wrong message to those who trade in drugs.
In Mr Ridgeway’s circumstances, in my opinion, it cannot be said that having regard to his antecedents, a non parole period of six years and two months (effectively six years and six months) was inappropriate. He was previously sentenced to imprisonment for ten years with a non parole period of eight years. He was not able to complete his previous parole without offending. Apart from the appellant saying so there is not much reason to think he is any better candidate for rehabilitation than he previously was.
In my opinion, the sentence appropriately reflects the appellant’s criminality and gives the appropriate and necessary credit to the appellant for the inconvenience and stress associated with the multiplicity of proceedings arising out of this offence.
For those reasons I would dismiss the appeal against sentence.

[1998] SASC 6963

26 November 1998