R v Rowe No. Sccrm-98-74 Judgment No. S6750

[1998] SASC 6750

R  v  ROWE

Court of Criminal Appeal

Coram:  Perry, Williams and Bleby JJ

Perry J

The appellant appeals against his conviction in the District Court following a trial by judge alone on an information which alleged eighteen counts involving various firearm and drug offences.  The conviction was recorded on each of the first fourteen of those counts.  The remaining four counts were stood over to a date to be fixed, upon the intimation of counsel for the Director of Public Prosecutions that depending on the outcome of this appeal, which had at that stage already been foreshadowed, he would enter a nolle prosequi.

The first three counts upon which the appellant was convicted alleged that on 20 December 1995 at Pooraka he had possession of a pistol which was reasonably suspected of having been stolen or unlawfully obtained; that without lawful excuse he carried an offensive weapon, namely, the pistol; and that he sold the pistol without satisfying himself that the purchaser held an appropriate firearms permit.

The next three counts relate to drug offences alleged to have been committed on 1 February 1996 at Smithfield.  They alleged that on that day the appellant sold two prohibited substances, namely, paramethoxyamphetamine; lysergide (LSD); and a drug of dependence, namely, a chemical derivative of opium.

The remaining eight counts were alleged to have occurred on 2 February 1996 at Parafield.  The first two of them alleged that the appellant took part in the sale of paramethoxyamphetamine, and separately, a chemical derivative of opium.  The other six counts relate to firearms: one of them, the unlawful possession of a machine gun and two pistols; three of them, carrying offensive weapons, being respectively two pistols and a sub-machine gun; another that the appellant had in his possession a silencer; and as to the last, possession of a sub-machine gun without holding an appropriate firearms licence.

When arraigned on 8 September 1997, the appellant pleaded not guilty to all counts.  His counsel, Mr Retalic, was then granted the right to conduct a voir dire examination directed towards providing a basis either for a stay of the proceedings, or to exclude police evidence the receipt of which was central to the success of the prosecution on all counts.

After hearing evidence on the voir dire and submissions from counsel, the learned trial judge completed the hearing on the voir dire on 10 September 1997.  On that date the appellant failed to appear, whereupon the learned trial judge issued a bench warrant for his arrest.

On 12 September 1997 the learned trial judge delivered his ruling, supported by written reasons, in which he dismissed the appellant’s applications.  The appellant was still at large.  The learned trial judge adjourned the trial pending the appellant’s apprehension.

The trial resumed on 10 March 1998 when Mr Retalic made a number of formal admissions on behalf of the appellant as to the essential elements of each of the offences.  He then elected not to call any evidence or make any submissions.

Thereupon the learned trial judge proceeded to convict the appellant on all of the fourteen counts.

In his notice of appeal, the appellant complains that the learned trial judge failed properly to exercise his discretion in relation to the applications to stay or exclude the evidence in question, in particular with respect to various findings which he made to which I will in due course refer.

The appeal raises questions as to the propriety of the conduct of the investigating police officers in setting up controlled “buys” of the firearms and drugs in question, including the question whether the actions of the police officers were illegal, together with questions as to the efficacy of a purported approval under the Criminal Law (Undercover Operations)Act 1995 (“the Act”) given just before the commission of the offences alleged to have occurred on 1 February 1997.

Before dealing with the arguments raised on the appeal, I will refer to the circumstances as disclosed by the evidence called on the voir dire.

The evidence

Four police witnesses were called.  They were Detective Senior Constable David Brown, a member of the Drug Task Force, Detective Senior Constable Rodney Kitto, a member of the Organised Crime Task Force, Detective Superintendent Edmonds, the officer in charge of the Drug Task Force, and a police officer who acted as an undercover operative.  Although the latter’s name was given in open court during the course of the voir dire hearing, publication of the voir dire evidence was prohibited by order of the court.  In view of that order, for what it is worth, I will endeavour to preserve the anonymity of the undercover operative by referring to him by the name which he used during the course of the undercover operation, namely, “Bill”.

Detective Brown assumed the role of what was described as “case officer” during the operation which resulted in the appellant’s arrest and conviction.  Superintendent Edmonds’ role was to approve, upon application, the use of undercover police operations, whether approval under the Act was required or not.  His role also included consideration of any application for approval under the Act.

Detective Kitto took on the role of undercover controller, which means that he was the contact point with whom the undercover operator dealt during the course of the implementation of the operation.

Detective Brown gave evidence that he received confidential telephone information on about 1 December 1995 which indicated that two persons named respectively “Darren” and “Nick the Nazi” were involved in the sale of illicit firearms.  Inquiries indicated that “Darren” was the appellant and “Nick the Nazi” another person named Nicholas Pugliese.

Detective Brown spoke to Superintendent Edmonds requesting the services of an undercover operative to pursue the investigation.  He was informed by Superintendent Edmonds, inter alia, that any possible offences to do with the firearms would not come within the scope of the Act, but that if he submitted what was described as an “investigation strategy,” the application to proceed by means of an undercover operation would be considered.

Detective Brown prepared the “investigation strategy” which is a document dated 12 December 1995.  In that document, Detective Brown stated, inter alia, “Both Rowe and Pugliese are involved in the selling of ‘skunk’ (strong cannabis) and handguns.  In the same document, the “Mission” to which the investigation was to be directed was said to be to “identify offences against the Firearms Act relating to the sale of firearms” by, inter alia, Pugliese and the appellant.

It is clear from this document that initially it was thought that the entire operation would take only about four days.  As explained in evidence by Detective Brown, what was anticipated at that stage was that there would be negotiation for the purchase of a gun, and on the consummation of that transaction, there would be an immediate arrest which would end the operation.

Approval was given in writing by both Superintendent Edmonds and Detective Kitto for the undercover operation to be launched.  That approval is dated 18 December 1995.  It was not and did not purport to be an approval under the Act.  It is clear from the terms of the document evidencing the approval, described as a “Drug Task Force Tactical Order”, that it only envisaged a transaction involving firearms.  This is apparent from the following extract:

“Meeting to take place between 2-3 suspects dealing in stolen handguns.  Undercover operative will deal with offenders with a view to purchasing same.  Star Division personnel will arrest the offenders.”

Following the making of that order, the undercover operative Bill first made contact with the appellant on 19 December 1995.  The first controlled buy took place on the following day, that is, on 20 December 1995.

Bill’s evidence was that at the very first meeting the appellant “brought up the subject of drugs, what he could supply”.  He went on:

“In general terms, he told me what he had available, what he could supply in the future, where the drugs were originally sourced from, that is, whether they came from Sydney or Melbourne.”

Bill said in evidence that he did not attribute “a great deal of credence” to the talk about drugs as it was not unusual for suspects to exhibit a deal of bravado or to boast about such matters.

The transaction which took place on 20 December 1995 did not signal the end of the operation, as was originally intended.  This was said to be because of indications during the course of the dealings which led up to the first transaction by the appellant that he was in a position to offer firearms of an unusual kind.  One particular firearm which was described by the appellant as being available was a “Heckler and Koch” sub-machine gun which Detective Brown described in his evidence as “a unique weapon and unavailable to the public”.

Superintendent Edmonds approved the extension of the operation, but it was placed on hold temporarily over the Christmas/New Year break.

In the early part of the New Year, Bill maintained contact with the appellant, who renewed his references to the drugs he was prepared to sell.

On Thursday 1 February 1996 at about 1.10 pm, Bill met with the appellant in a car park at the Enfield Hotel at Clearview.  He then reached an understanding with the appellant that the latter would telephone him later that day to confirm that they would meet that evening in order that the appellant might supply a sample of opium paste, “micro dots” of LSD and ecstasy capsules, all of which the appellant said that he had in his possession.

Thereupon, an application was made for approval under the Act.  About two hours later, namely, at 3.05 pm, in response to the application, Superintendent Edmonds signed an approval under the Act “to purchase or attempt to purchase illicit drugs (and firearms) from Rowe, Pugliese and/or other person(s)”.

At about 8.00 pm that same day, Bill received from the appellant the sample drugs, for which he paid to the appellant $200.  It was agreed that they would meet again the following day, that is, Friday 2 February 1996.

At that meeting, the appellant sold to Bill a machine pistol and the two 9 millimetre handguns, together with the drugs the subject of counts 7 and 8, for which Bill paid a total of $2,000.

It is clear from this narration of the facts that the application for approval under the Act was made at a late stage in the dealings between Bill and the appellant.  The reason why that was so was explained by the witness Detective Kitto in this way:

“.... there are a number of different occasions that the operative and Rowe were speaking of drugs, although that was not our aim.  Detective Superintendent Edmonds I approached on a few occasions to check whether we needed to get an approval, and he stated because it was only talk at that stage there was no - it wasn’t part of our aim and we weren’t particularly concerned about the drugs.”

Later he said:

“It (the approval) was sought at that time because it became apparent that he (the appellant) was in possession of some unusual illegal drugs of the type that aren’t common at all, and for that reason we had decided to ..... to seek approval to go ahead and purchase those drugs as well.

...............

Q...... Why did you seek to get the approval at the point that you did.

A...... Because we were actually going to buy illicit drugs for that reason, and because of the Act we had to get the approval.

Q...... To your understanding, had you sought the approval any earlier, would there have been any difficulties in obtaining it.

A...... No.”

Superintendent Edmonds said:

“Q.... During the course of this investigation did the topic again at any stage come up of an approval under the Undercover Operations Act.

A...... That was probably discussed a number of times.

Q...... In what sort of context.

A...... We would review the status of the investigation and I would then go through a mental process, an assessment, as to whether or not an approval was necessary for the next step of the investigation.

Q...... Did you understand at this stage the mention of drugs had come up during the course of conversations with the accused.

A...... Yes, that is not unusual.

Q...... What do you mean by that.

A...... Well, most people with a criminal disposition talk drugs.

Q...... Again, it might be obvious, but, what do you mean by ‘talk drugs’.

A...... I’m sorry, they tend to - well, my experience has been that they talk about their involvement with the buying and selling, production, of illicit drugs or, they would in fact brag about it.

Q...... The word ‘bravado’ has been used.  Is that a term that you would adopt.

A...... Yes, that is one.

Q...... How common or uncommon is that.

A...... It - well it happens all the time.

Q...... during the course of the mention of drugs, by that I refer to conversations you have had with Brown and Kitto where drugs have been mentioned in relation to Rowe, did the topic of an approval under the Act come up.

A...... Yes.  From memory I think there were a couple of occasions when they talked about it and, it was my assessment that the conversations between [BILL] and the accused were not much more than talk between a couple of people with criminal intents, and there was no - on my assessment - there was nothing specific enough to make me feel that now was the time to make sure that we had an approval.  There did come that time but, in the early stages that was my - it was my assessment that an approval wasn’t necessary just because they were talking drugs.

Q...... I will come to the time that approval was granted in a moment.  But, did you give any advice either to [Bill], Kitto or Brown, or all, on the topic of when an approval might become necessary,

Q...... Yes, I - the information I was getting back from the investigators was that the accused was talking big, bravado, as you said before.  It was my instruction to them to try and determine whether his talk was all bravado or whether he really did mean business and he was in fact in the business of dealing in drugs.

Q...... Why didn’t you just give them an approval early on in the piece when you heard there had been mention of drugs.

A...... As I said before, in those sort of conversations, between suspects and undercover police, the conversation about drugs comes up 99 per cent of the time and if I was to do an undercover approval for every time drugs were mentioned in a conversation then I would be spending my life doing undercover approvals that may or may not be necessary.”

Detective Brown’s evidence was:

“Q.... What was your view as to the truthfulness of the accused’s assertion, about obtaining the drugs that had been described.  This is prior to getting the approval.

A...... I guess I really didn’t think that he could come through, particularly with the opium paste and the LSD micro dots, in that they hadn’t been commonly known in South Australia, and linking them with the fact that I didn’t really believe that he could obtain the Heckler and Kosch (sic) machine gun in my mind, it happened to be a task to me.

Q...... As some point did that change.

A...... Yes, it did.

Q...... When.

A...... On 1 February, the day we actually purchased the sample drugs, was the first day that Darren had actually said that he can supply those drugs today, it was no longer a promise for something that could occur in the future, it was something that he could have done for us that day.

Q...... When the approval was obtained from Edmonds, what was the intended course of the remainder of the investigation.

A...... The intended course was to continue pursuing the machine gun.  However, the idea was to purchase a sample of the drugs that he had to offer, hopefully that evening, meaning the night of 1 February, with a view to having those drugs tested and continuing the deal the next day, to increase the amount of drugs and pursue the machine gun and more handguns.

Q...... Was it intended that an arrest be made at some point in time.

A...... Yes.

Q...... When.

A...... At the point when we could obtain the machine gun.

Q...... What was the principal focus of the investigation at this stage, and I am talking about the point of the approval.

A...... I still believe the focal point of the investigation was the machine gun, and the general movements of firearms generally.  However, the added information relating to the drugs, necessitated us moving into the undercover legislation.”

The ruling by the trial judge

The learned trial judge stated that he was “most favourably impressed” both by the demeanour and by the care with which the four police officers gave their evidence.  He said that he accepted their evidence “without reservation”.  He went on to find that initially the focus of the investigation was “the extent of the marketing of illicit firearms”, although Bill would be expected to report on the commission of any other criminal offences which might come to his notice.

He found that boasts were made by the appellant as to the classes of drugs he could supply, but he accepted the evidence of the police officers that such boasting is a commonly experienced phenomenon in dealing with persons suspected of offences of this kind.

The learned trial judge found that by 21 January 1996 the police without “abandoning or putting to one side the primary focus of the investigation into firearms were becoming more suspicious about the information concerning the drugs that the accused said he had for sale”.  He held, however, that they remained sceptical, and that it was not until 1 February 1996 when Superintendent Edmonds gave the approval under the Act that Superintendent Edmonds “suspected, on reasonable grounds, inter alia, that the accused was engaging or was about to engage in serious criminal behaviour”[1] of the kind to which the approval related, in that by then, “the accused had offered samples of the drugs that he had in his possession for sale to [Bill]”.

[1]    See s3(2)(a) of the Act.

He then went on to deal with the arguments which had been put by Mr Retalic, which were similar to the arguments advanced before this Court, in which he criticised the police, claimed that the whole of the “operation” was illegal and that there had been a failure to follow the procedures required by the Act.

After referring to Ridgeway[2], to the judgment of the Court of Criminal Appeal in Giacco and Edginton [3] and to the judgment of Cox J in Martelli[4], he held that the actions of the police officers, and in particular of the undercover operator Bill, were done in good faith; that they were the “only practical method of getting evidence” against the appellant and “of tracking down the dangerous firearms that he had to offer for sale”; that it was the appellant who “pushed and wanted to peddle his supplies of drugs” to Bill; and that no case had been made out to justify the exercise of the Bunning v Cross discretion in favour of rejecting the police evidence relating to the investigation.

[2] (1995) 184 CLR 19, (1995) 78 A Crim R 307.

[3] (1997) 68 SASR 484.

[4] (1995) 83 A Crim R 550.

The argument on appeal

Central to Mr Retalic’s arguments were his submissions:

òthat the police conduct, and in particular the actions of Bill, from the time of the initial approach to the appellant until the conclusion of the sale of the weapons and drugs on 2 February 1996, were illegal;

òthat the approval under the Act was obtained too late to have deflected criminal liability attaching to the police officers with respect to all of the transactions in question;

òand that the learned trial judge erred in the exercise of his discretion in accepting the evidence of the police officers as to the manner in which the transactions developed, more particularly in what Mr Retalic suggested was a finding by the learned trial judge that the activities of the police officers were lawful.

I will deal with the last point first.

In support of that contention, Mr Retalic pointed to the following passage in the learned trial judge’s reasons for ruling:

“During the course of argument Mr Retalic went to great lengths to criticise the police and to claim that the whole of the operation was illegal and that the police failed to follow the procedures required by the Criminal Law (Undercover Operations) Act.

I do not accept that submission, nor do I need to follow him down that track.”

Contrary to Mr Retalic’s argument, I do not read the words “I do not accept that submission” as indicative of a finding that the conduct of the police was lawful.  It must be accepted that the learned trial judge was not prepared to find that the whole of the operation was illegal.  But in his reasons he appears clearly to recognise that Bill’s actions might well, at some stage, have involved him in illegality.  The learned trial judge said:

“Mr Retalic placed much reliance on what he claimed to be the fact that .... [Bill] ..... committed offences by purchasing a pistol from the accused on 20 December 1995 and the sample drugs on 1 February 1996.”

Later he said:

“There is no doubt in my mind that all that was done by the police, and, in particular, by [Bill] .... was done in good faith.  I do not consider this case to be the ‘rare and exceptional case where the illegality or impropriety of the police conduct is grave and either calculated or so entrenched that it is clear that considerations of public policy relating to the administration of criminal justice requires the exclusion of the evidence’.[5]  ..... Moreover, as Cox J said in Martelli,[6] the use of evidence of undercover officers would usually be admitted, particularly where the police have acted in good faith in the belief, fostered no doubt hitherto by the tacit condemnation by the courts, that it is acceptable to commit whatever offence may be constituted by buying or offering to buy drugs from a dealer if it is the only practicable way of getting evidence against the dealer himself.”  (emphasis added)

[5]    Ridgeway (supra) at 39.

[6]    (Supra).

He later described the methods adopted as the “only practical method of getting evidence against the” appellant “and of tracking down the dangerous firearms that he had to offer for sale”.

It is true that the learned trial judge did not expressly and definitively conclude that a specific offence was committed by Bill at any particular stage of the operation.  But reading the reasons for the ruling as a whole, the learned trial judge clearly had in mind that Bill’s conduct might well constitute some form of criminal involvement, but in the circumstances that was justifiable, and did not tilt the scales against admission of the evidence in question.

Mr Retalic argued that Bill was guilty of the common law offence of “counselling or procuring” the unlawful sale of the gun. He further argued that with respect to the sales of the drugs, Bill was taking part in the sale of a drug within the meaning of s32(4) of the Controlled Substances Act 1984, or was guilty of aiding, abetting, counselling, procuring, soliciting or inciting the commission of an offence against the Act within the meaning of s41.

Ms Kelly for the respondent submitted that the conduct of the police officers was not illegal.  She made reference to a number of authorities dealing with accessorial liability of one kind or another, and the question whether there is any offence under the Controlled Substances Act on the part of a purchaser buying drugs for his or her own use.[7]  I do not pause to examine the merits of those arguments.

[7]    See Giorgianni (1985) 156 CLR 473, Scott v Killian (1984) 36 SASR 438, Black (1983) 35 SASR 261, DPP’s Reference No 2 of 1995 (1995) 65 SASR 508 and O’Sullivan v Bastian (No 2) (1948) SASR 17.

As was pointed out by Mason CJ, Deane and Dawson JJ in their joint judgment in Ridgeway:[8]

[8] (1995) 184 CLR 19 at 36.

“In a context where ancillary offences - such as counselling, being knowingly concerned in, inducing, aiding, abetting and procuring - exist, in one form or another, in all Australian jurisdictions and where no laws exist authorising law enforcement officers to encourage or participate in the commission of criminal offences in order to enable the apprehension and procure the conviction of those whom they believe to be involved in criminal activity, it is likely that conduct which intentionally procures the commission of a criminal offence by another will itself be criminal.”

I do not think it follows from that observation that in considering the application of the discretion to exclude evidence which has been illegally or improperly obtained, it is necessary for the court to make nice judgments as to the particular form of accessorial liability, if such liability exists at all, which might possibly apply to the conduct of police officers, or to make finely poised judgments as to the particular stage of a transaction which unfolds over a period of time, when any such liability might attach to those involved.

Ridgeway was an exceptional case.  Not only was the illegal conduct of the police agents in that case a serious offence (involving imprisonment for 25 years and a fine of $400,000), but the illegal police conduct itself “provided and constituted” an element of the offence committed by the accused.[9]

[9] Ibid at 42.

On the other hand, there are many situations in which the courts have treated as unexceptional implication by investigating police officers in various forms of entrapment.  As it was put by Cox J in Martelli:[10]

[10] (1995) 83 A Crim R 550 at 557.

“... - the use of undercover agents to make ‘controlled buys’ or to engage the suspect in analogous criminal actions - has been a commonplace of police investigation methods in common law countries from time immemorial.  It did not usually raise an evidential issue in any resultant prosecution because for a long time the policy of the courts, except perhaps in extreme cases, was that evidence is admissible in a criminal trial if it is relevant, and generally how it was obtained was no bar to its admission.  Since Ireland’s case[11] in 1970 the position in Australian courts has changed radically in this respect.  Applications are frequently made now to have evidence excluded on the ground that it was obtained illegally or improperly and that it would be contrary to public policy or unfair to the accused to admit it.  Meanwhile, the anomaly of admitting such evidence in entrapment cases - directed to sly grog offences, unlawful betting, brothel keeping, drug dealing and so on - where the undercover police officers may themselves have committed or at least procured the commission of the sort of offences they are trying to detect, has been given much greater emphasis by the enormous growth in serious drug crimes in recent years and the widespread use of undercover methods to detect them. ..........

[11] 126 CLR 321.

I do not conclude from their Honours’ treatment of the subject in Ridgeway that they contemplate the wholesale rejection of the sort of entrapment evidence relied upon in the present case - the typical controlled buy - simply because it may have involved the undercover police officers in the commission of accessorial or even substantive offences under the very legislation that they are attempting to enforce.  In such cases, being the first category discussed in the joint judgment (at 39-40; 321-322), the evidence will usually be admitted, particularly where the police have acted in good faith in the belief, fostered no doubt hitherto by the tacit condonation of the courts, that it is acceptable to commit whatever offence may be constituted by buying or offering to buy drugs from a dealer if it is the only practicable way of getting evidence against the dealer himself.”

In Ridgeway, Mason CJ, Deane and Dawson JJ in their joint judgment observed:[12]

[12] Ibid at 39.

“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."”

In a general sense it must be accepted that Bill’s actions “procured” the commission of the firearms offences, in that on the first occasion when he spoke with the appellant on 19 December 1995, which was a telephone conversation which occurred when he rang the appellant on his mobile telephone number, Bill said, inter alia, “I was told you might be able to help me get hold of some iron, do a special job with, you know” (“iron” being a slang word for firearms).  But from then on the appellant was more than willing to do business with Bill, not only with respect to firearms but with respect to drugs.

As to the latter, having regard to the evidence which was accepted by the learned trial judge, it was the appellant who first made reference to drugs and thereafter encouraged the purchase of drugs by Bill, notwithstanding the latter’s scepticism as to the appellant’s references to his ability to procure and supply them.

When the learned trial judge in his reasons in this case observed that he did not need to follow Mr Retalic “down that track”, I take it that he was saying that there was no necessity for him to identify just what particular form of accessorial liability Bill might have been exposed to, or at what precise point of time it may have occurred.  In effect, he was saying that even if Bill was guilty of illegal conduct, the methods adopted by the police were adopted in good faith and were, as he observed, “the only practical method of getting evidence against the” appellant.

The findings by the learned trial judge as to the credit of the police witnesses and as to their acting in good faith were clearly findings which he made with all of the advantage attendant upon his position as trial judge, having heard and observed the police officers give evidence.  Their evidence was unanswered by any evidence from or on behalf of the appellant.

As to the question of the approval given under the Act and the stage at which the approval was sought, I see nothing in the evidence to support the view that the application should have been made earlier.

Under s3(2) of the Act, an approval “may not be given” unless the senior police officer responsible for considering the application for approval “suspects, on reasonable grounds, that persons ..... are engaging or are about to engage in serious criminal behaviour .....” as defined.[13]  I see nothing untoward in the fact that Bill waited until he was confident that the appellant was in fact prepared to sell the samples the subject of the sales which took place on 1 February 1996 before seeking approval from Superintendent Edmonds.  The learned trial judge accepted the evidence of Superintendent Edmonds that it was not until then that he felt able to satisfy the statutory prerequisites for the grant of approval.  No ground has been made out to disturb that finding.

[13]    See s2 and s3(2)(a).

During the course of his argument, it appeared that Mr Retalic was suggesting that the police officers were under an obligation to apply for approval under the Act, at least when they were aware of the possibility that a transaction involving drugs might eventuate.  On the contrary, the police officers were at no time obliged to seek approval under the Act.  The absence of such approval would simply give rise to a situation in which the admissibility of any evidence which was obtained would be considered according to ordinary common law principles, including the Bunning v Cross discretion.

Furthermore, even if approval was sought and obtained, this would not mean that the evidence obtained would necessarily survive attack on the ground, for example, that there was nonetheless some impropriety attaching which should lead its exclusion.

The Act is silent both as to the admissibility of evidence obtained by undercover operations, whether approved or not, and as to its exclusion on discretionary grounds.  The only relevant consequence of the grant of approval under the Act is that the “authorised participant in approved undercover operations incurs no criminal liability by taking part in undercover operations in accordance with the terms of the approval.[14]

[14]    See s4(1) of the Act.

In his notice of appeal the appellant complains that the learned trial judge erred in making certain specific findings of fact relevant to the exercise of the discretion.  None of those complaints is made out.  I have already canvassed most of the factual matters the subject of those complaints, and I do not pause to deal with them further.

From start to finish, the police operation was a typical and unremarkable instance of a controlled purchase of a kind sanctioned by a long history of decisions of common law courts in Australia and elsewhere.  While it is true that as the operation proceeded its scope was widened to include the purchase of drugs as well as guns, that was a consequence of the actions of the appellant.  He was not placed under any pressure by Bill at any stage of the operation to enter into any of the transactions in question.  On the contrary, it was the appellant who initiated and promoted the sale of the drugs.  He was a ready and willing participant in all aspects of the transactions.

In this class of case, police officers often expose themselves to considerable personal risks in an endeavour to secure evidence of the commission of serious crimes.  In many instances the methods adopted will be the only effective means of securing such evidence.  In such cases the courts should not be astute to find reasons to reject the evidence, provided it is clear that the police officers have throughout acted in good faith.

The appellant has not demonstrated that the learned trial judge erred in the exercise of his discretion.

I would dismiss the appeal.

Williams J

I agree
Bleby J

I agree that the appeal should be dismissed for the reasons given by Perry J.