Richard Eric Charles Massey v R (No.1) No. SCCRM 94/344 Judgment No. 4787 Number of Pages 13 Criminal Law and Procedure Jurisdiction, Practice and Procedure

[1994] SASC 4787

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), MILLHOUSE(3) AND PERRY(2) JJ

CWDS
Criminal law and procedure - jurisdiction, practice and procedure - Stay of proceedings - entrapment by police - charge of taking part in supply of heroin - application for permanent stay of proceedings or exclusion of evidence refused - prison officer delivering heroin for prisoner from whom he was seeking a loan - suggestion of delivery initiated by police - police belief on information that appellant engaged in drug activities in prison - appellant not proved to have been induced to commit crime of type which he would not otherwise have committed - appeal dismissed.

Criminal law and procedure - jurisdiction, practice and procedure - Conviction based upon plea of guilty entered after adverse ruling on application for permanent stay and to exclude the evidence of commission of the crime - whether appeal lies. R v Romeo (1987) 45 SASR 212, applied.

HRNG ADELAIDE, 22 September 1994 #DATE 7:10:1994

Counsel for appellant:             Mr G R Algie

Solicitors for appellant:         C B McDonough and Co

Counsel for respondent:             Mr J J Doyle QC with
   Mr S A Millsteed

Solicitors for respondent:         DPP (SA)

ORDER
Appeal dismissed.

JUDGE1 KING CJ The appellant was charged on an Information in the District Court containing two counts. The first count alleged improper exercise of public office. The second count alleged taking part in the supply of heroin. Before being arraigned, the appellant applied to the court for the following orders:-
    1. That the prosecution of the Information be permanently
    stayed on the basis that to proceed would be an abuse of
    the court's process;
    2. In the alternative, that the prosecution be prevented
    from leading any evidence obtained against the appellant
    after 3 August 1993.

2. Although the application is expressed to relate to both counts, it was argued only in respect to count 2 as the conduct forming the basis of the first count occurred before the events which founded the complaint of abuse of process. The learned trial judge, after hearing evidence on the application as well as argument from counsel, dismissed the application.

3. Upon the dismissal of the application for the stay and to exclude evidence, the appellant was arraigned and pleaded guilty to the second count. The Director of Public Prosecutions entered a nolle prosequi on the first count. In consequence of the plea of guilty, the appellant was convicted on the second count. He now appeals to this court against that conviction.

4. An unusual feature of this case is that the appellant appeals against a conviction entered in consequence of his plea of guilty. There is no suggestion that the plea was entered other than freely and voluntarily with the benefit of legal advice and with full knowledge that it constituted a confession to the crime. The conviction is based upon what is sometimes called a judicial confession, that is to say a confession formally made in court by means of the plea. The legal effect of a plea of guilty is that there is no issue between prosecution and the person charged as to the truth of the charge and the conviction is entered on that basis. The basis of the conviction is not evidence adduced by the prosecution but the formal plea of guilty to the charge.

5. On that analysis of the legal position, I felt considerable difficulty about an appeal against a conviction on a charge as to which there was no issue in the court below. The Solicitor General, who appeared for the respondent to the appeal, was prepared to concede that an appeal lay against such a conviction. He pointed out that if an accused person were precluded from appealing against a conviction based upon a plea of guilty following an adverse ruling, the accused person would be faced with the necessity of putting the prosecution to proof in order to test on appeal the ruling which made conviction inevitable. This would entail expense and delay. The Solicitor General pointed to the convenience of allowing an accused person to challenge the adverse ruling by way of appeal against conviction notwithstanding the conviction being based upon a formal admission of guilt.

6. In R v Romeo (1987) 45 SASR 212 the Court of Criminal Appeal entertained an appeal against conviction in circumstances similar to the present. Johnston J expressly referred the question of the right of appeal in his reasons for judgment and he referred to relevant authorities. I think that R v Romeo (supra) is sufficient warrant for this court to entertain the present appeal. In view of the concession of the Solicitor General that an appeal lies in the present circumstances, it is unnecessary in the present case to explore the limits of the right to appeal against a conviction based upon a plea of guilty.

7. The ground upon which the appellant sought to have the prosecution permanently stayed or the evidence of the commission of the crime excluded in the exercise of the court's discretion, was that he had been induced to commit the crime by improper police entrapment. His appeal is based upon the contention that the learned District Court judge erred in refusing to stay the proceedings or exclude the evidence.

8. The appellant was a prison officer and was a supervising prison officer at the Yatala Prison at the relevant time. A man by the name of Hunt was serving a sentence of imprisonment at Yatala. In July 1993 Hunt made, and the appellant accepted, an offer of a loan. The amount initially was to be $5,000 but it was later increased to $10,000. On the strength of the offer of the loan, the appellant made certain personal and family arrangements particularly with respect to an intended holiday in Queensland. Despite repeated promises and arrangements, however, the promised money did not materialise. The appellant did improper favours for Hunt. At Hunt's request he searched the Justice Information System computer for information about a man who, it was alleged, had taken pornographic photographs of Hunt's de facto wife. The desired information was not on the computer, but the appellant admitted in cross examination that if it had been there he would have supplied it to Hunt knowing that it might result in harm to Parsons. He ascertained, at Hunt's request, that Hunt was wanted for extradition and so informed Hunt. Hunt asked the appellant to remove an extradition order from his file. The appellant told Hunt that he had done so although, in truth, he had not removed the document.

9. Towards the end of July Hunt informed the authorities of his dealings with the appellant. Hunt was interviewed by the police on 3 August. The police had information from another source or sources that the appellant was engaged in drug activities in the prison. The belief that he was so engaged was reinforced by what Hunt told them of the appellant's associations and activities, although Hunt did not allege that there had been any mention of drugs between him and the appellant. On 19 August an authorised interception tap was placed on the appellant's telephone. On 20 August Hunt was brought from the prison to the office of his solicitor Mr Stokes and a meeting occurred there between them and Detectives Lawrence, Symons and Schramm. Hunt's de facto wife Teresa ("Terri") Starcevich also attended the meeting. The police described it as a "strategy meeting". It was decided to test how far the appellant would go in doing favours for Hunt in exchange for the promised loan of $10,000. In fact the $10,000 did not exist and Hunt had no intention of making the loan.

10. On 21 August, as a result of decisions made at the strategy meeting, Hunt requested the appellant bring pornographic literature into the prison for his use and the appellant did so. It is hardly necessary to say that the appellant acted improperly in complying with each of the requests made by Hunt and that he performed those improper favours because of the promised loan.

11. The police, believing that the appellant was involved in drug activities in the prison, suspected that he would be prepared to procure drugs for Hunt. They arranged with Hunt to approach the appellant on this topic.

12. On 22 August there was a telephone conversation between Hunt and Massey. Hunt told the appellant that he owed a favour to a man and that he was under an obligation to get a small amount of heroin to that man's wife. He said that he was not happy to get Terri Starcevich to do it. The appellant immediately responded "Do you want me to do some picking up and dropping off from you?" Hunt did not answer that question but continued the conversation in a way which could only be regarded as angling for an offer by the appellant to procure the drug for him. The appellant did not make any such offer and warned Hunt to be careful. He said at one point "You find out what the story is and have exact details of what it is before you do anything or before I do anything." The intercepted record of the conversation shows that later the appellant said "It was easy, that's what I say, you know, you sort of you, you talking about it, if you still want that stuff to come from Sydney ... bring it through an aeroplane and through, you know, you risk the, run the risk of losing it, I mean its only a day trip and a day trip back on a bike .. pick it up in a bag and know, back you come, no questions asked."

13. The appellant claimed in his evidence that he was referring in that passage not to drugs but to money. Later in the conversation, however, he said "See what's going but if you want, if you want, you know that stuff to be picked up and dropped off just ... be real, real careful what you decide on."

14. The record of the conversation then continues:-
    "Hunt: 'Yeah, well, you know, I don't know anything about
    it but.'
    Massey: 'Yeah.'
    Hunt: 'You blokes really know more about what's going on
    with these things than I do, I -'
    Massey: 'Yeah.'
    Hunt: 'It's all new to me.'
    Massey: 'Well, you've just got to be really careful
    because people watch and all sorts can happen.'
    Hunt: 'Alright mate.'
    Massey: 'Just be real careful, alright.'
    Hunt: 'Well I'll see. I will just, it's only just for
    clearing, he did her a favour and I don't want to be
    hassled by this bloke, that's all.'
    Massey: 'Yeah, no problems.'
    Hunt: 'Alright.'"

15. Massey agreed in cross examination that he must have been discussing heroin in that passage.

16. Police provided Starcevich with $200 and arranged with Hunt to tell the appellant to collect it for the purpose of procuring the parcel of heroin. The police had the appellant under surveillance and they hoped that he would procure the heroin from a supplier thereby leading the police to the supplier. This did not eventuate. The appellant's evidence was that he gave the $200 to Hunt.

17. It is necessary, at this stage, to say something of the learned judge's view of the credibility of the appellant. The prosecution did not call Hunt or Starcevich to give evidence. The appellant's account of events was therefore largely uncontradicted. The learned trial judge was somewhat guarded in his assessment of the appellant. In his reasons for his decision on the application he said:-
    "Having said all this, I must in the end be largely
    reliant on what Massey has said. His is the only
    evidence on many topics. His good character was vouched
    for by two witnesses. He is by no means a person whose
    evidence can simply be dismissed."

18. It is apparent, however, on the tenor of the reasons, that the judge was not prepared to make findings of fact in accordance with the appellant's evidence in every respect. On the question whether the money was taken to Hunt the judge said:-
    "He says he took it to Hunt who later gave him heroin.
    That is not the information given to the police by Hunt,
    but he may not have been truthful. In any event Massey
    later handed over heroin to Starcevich at a controlled
    handover. He received a cheque for $10,000 purporting to
    be the loan, though it was never intended to honour that
    cheque. He was then stopped by police, questioned,
    arrested, and charged."

19. Police entrapment may in appropriate circumstances lead, in the discretion of the court, to exclusion of the evidence of the commission of the crime Hunt v Wark (1985) 40 SASR 489 or to a permanent stay of criminal proceedings in respect of the crime R v Vukov (1986) 40 SASR 498 especially at p522; R v Ridgeway (1993) 60 SASR 207 per Matheson J at 231; R v Hsing
(1991) 25 NSWLR 685 per Samuels JA at 696. In R v Hsing (supra) Samuels JA pointed out that at times courts have approached this issue from the point of view of discouraging improper police practice on the principles enunciated in Bunning v Cross (1978-1979) 141 CLR 54 but at other times have placed emphasis upon the unfairness to an accused being prosecuted for an offence which has been induced by official action. I think that both aspects must play a part in the ultimate decision as to whether the prosecution should be stayed or the evidence of the commission of the crime be excluded. In Jago v District Court (NSW) (1989) 168 CLR 23 Mason CJ at page 30 quoted with approval the explanation given by Richardson J in Moevao v Department of Labour (1980) 1 NZLR 464 at 482 of the rationale for the exercise of the power to stay a prosecution. Richardson J said that unfairness to the particular accused may be an important consideration. He added:-
    "But the focus is on the misuse of the court process by
    those responsible for law enforcement. It is whether
    the continuation of the prosecution is inconsistent with
    the recognised purposes of the administration of criminal
    justice and so constitutes an abuse of the process of the
    court."

20. I do not think that the court should feel any need to express disapproval of the course of action taken by the police in the present case or to discourage similar action in the future. The police had information that the appellant was engaged in drug activities in the prison. They had information from Hunt that he was prepared to accept a loan from a prisoner and thereby place himself under an obligation to that prisoner. The situation, on the information which the police had, was that of a prison officer who was, or may have been, engaged in drug activities in the prison and who had placed himself under an obligation to a prisoner for whom he was prepared to do improper favours. In those circumstances I think that the police were bound, in the performance of their duty, to ascertain whether the prison officer was prepared to engage in drug dealings on behalf of the prisoner. There was no question of inveigling or importuning an innocent person to commit an offence so that he could be prosecuted. It was a case of providing the opportunity for a prison officer who was known to be prepared to perform improper favours for a prisoner from whom he was prepared to take an improper benefit, and who was believed to be engaged in drug activities in the prison, to engage in such an activity in a way which would lead to his detection. It is true that the question of drugs was introduced into the relationship between Hunt and the appellant as a result of the police initiative. It was introduced, however, only because the appellant was believed to be engaged in that type of activity and had placed himself improperly under an obligation to a prisoner.

21. Notwithstanding the propriety of the police conduct, I think that it would be unfair to the appellant to allow the prosecution to proceed if he has been induced by the police strategy to commit an offence of a kind which he would not otherwise have committed. I do not think, however, that the appellant has established on the balance of probabilities that that is the position.

22. The appellant voluntarily accepted the offer of the loan from Hunt. He must have known that such an offer would come at a price. He would be expected to perform favours for Hunt. He recognised that by the willingness with which he undertook the performance of the favours requested by Hunt as to the computer searches and the supply of pornographic material. When Hunt raised the question of drugs, at the instigation of the police, the appellant's reaction was not that of a person who was unwilling to act as a courier of drugs. In saying "Do you want me to do some picking up and dropping off from you?", the appellant was virtually volunteering to be a carrier of the heroin to the person for whom it was intended. That reaction indicated a willingness to engage in that type of activity.

23. It is true, of course, that the police suspected that the appellant might be prepared to go further and to obtain drugs from a supplier. The fact that that belief on the part of the police proved to be unfounded, does not alter the fact that the appellant was willing from the outset, without any inveigling or importunity, to do what he was ultimately prosecuted for doing, namely to deliver the drugs to the intended recipient. The desire for the loan was, of course, the motivation, but that merely exposed the appellant's willingness to deliver drugs for a prisoner in exchange for a favour.

24. While the information which the police had about the appellant's alleged activities in the prison is relevant in assessing the propriety of their conduct, it must be ignored in determining whether the appellant was induced to engage in criminal conduct of the kind in which he would not have been involved but for police inducement. There is no admissible evidence that he was engaged in such activities. What is proved by admissible evidence, however, is that the appellant accepted an offer of an improper inducement from a prisoner and performed improper favours in exchange for it and that one of those favours was the delivery of a parcel of heroin. It was also proved by admissible evidence that when the issue of heroin was raised, he spoke in a way which indicated a willingness to be involved in the delivery of the heroin. The appellant claimed in his evidence that he would not have been involved in the delivery of heroin if it had not been for the pressure applied by Hunt in relation to the loan. It appears from the tenor of the learned judge's reasons that he did not accept that evidence. I do not think that it could reasonably be accepted having regard to the circumstances of the case including the appellant's actions and the words used by him in the telephone conversation with Hunt.

25. On the issue of whether the appellant was induced to do something which he would not otherwise have done, Mr Algie, who appeared for him in the court below and before us, sought to lead evidence in the court below from a psychologist. The psychologist was allowed to give evidence de bene esse, but having heard the evidence the learned judge ruled it to be inadmissible. That ruling is challenged on the appeal.

26. It was not suggested that the appellant was mentally abnormal. On the contrary, the psychologist gave evidence that the appellant "is very much an average normal citizen" with intelligence slightly above average. He said:-
    "... To summarise, Mr Massey's profile indicated he was a
    stable, generally relaxed person, who was moderate in his
    activities and enthusiasm. He enjoyed others' company,
    but valued privacy. He was a down to earth, practical
    and traditional person to person, largely set in his own
    ways. On the agreeable scales, he appeared
    compassionate, good natured and easy to cooperate and
    avoid conflicts with. Finally, his conscientious score
    indicated he was a person who was likely to be dependable
    and moderately well organised."

27. The thrust of the psychologist's evidence was that the majority of people placed in the appellant's position would be likely to succumb to the temptation to do what he did in order to procure the loan. The matters upon which the psychologist's evidence was sought were matters of ordinary human experience upon which expert evidence is not admissible: R v Turner (1975) QB

834 esp at 841; R v Runjanjic and Kontinnen (1991) 56 SASR 114 esp at 120. The learned judge was correct in rejecting this evidence.

28. In my opinion the learned judge was correct in refusing the application for a permanent stay of these proceedings and in declining to exclude the evidence of the commission of the crime. The appeal should therefore be dismissed.

JUDGE2 PERRY J I agree with King CJ that the appeal should be dismissed for the reasons given by him.

JUDGE3 MILLHOUSE J Appeal against conviction and sentence by a man who pleaded guilty to taking part in the supply of heroin.

2. The first question the Court had to decide was whether a person may appeal against conviction when he has made a "judicial confession", pleaded guilty.

3. This is what had happened in the District Court. The appellant asked for and was given a voir dire on the question of entrapment, whether there should be either a stay of proceedings or the exclusion of evidence. Judge Bright was against the appellant. The appellant pleaded guilty and the Crown entered a nolle prosequi on the other count in the Information, improperly exercising public office.

4. Had the appellant maintained his plea of not guilty he would most likely have been convicted - although as we know, in a trial "there's many a slip 'twixt the cup and the lip", a witness may have fallen under a bus and so on. If he had been convicted the appellant could then have appealed and a ground could have been that the evidence obtained by entrapment should have been excluded. A lot of time and money would have been spent, wasted really, to get to the same position as we were in at the beginning of the hearing of the appeal. Fortunately not only had it been sensible to proceed as the appellant did but the procedure is also supported by authority. The Solicitor General told us that this is often done in England. It has been done here too. In R v Romeo (45 SASR 212) (the facts of which have some similarity to the facts here), the Court permitted an appeal after a plea of guilty. Johnston J considered the question at pages 226-228. At page 226 he said:-
    " The Crown accepted that there was a right of appeal
    against conviction in these circumstances: the judgment
    of a court in passing a conviction based upon a plea of
    guilty which plea is made on an erroneous basis that a
    defence is not open is a judgment which is in error in
    law within the meaning of s 353(1) of the Criminal Law
    Consolidation Act 1935, and alternatively it was conceded
    by the Crown that it may be regarded as a miscarriage of
    justice. Similarly, the Crown conceded that a ruling
    that the discretion to exclude evidence will not be
    exercised may be similarly categorised; for the purposes
    of the present case the Crown was prepared to concede
    that it could be so categorised. The question of a right
    to appeal had been discussed between the appellant and
    the trial judge before the plea was entered and the plea
    was entered upon the understanding to which the Crown was
    a party that the accused would not lose the right of
    appeal."

5. We were not told whether the matter had been discussed by counsel at this trial, as it had been in Romeo, but the Solicitor General accepted that we should hear the appeal and we proceeded to do so.

6. The facts are accurately set out in the Reasons of Judge Bright. I need only summarise them.

7. The appellant had been a prison warder at Yatala. A man named Hunt, (whom the learned trial judge described as "a clever con man ... an able pretender, manipulator and persuader") was a prisoner. Hunt came to know that the appellant was in need of money. Hunt offered the appellant a loan, first of $5 000 and a week later of $10 000. (Hunt, I think, had no money to lend but the appellant must have assumed he had.) Hunt dangled the loan before the appellant. The appellant became increasingly anxious to get the money. It was mental torture really: the more Hunt delayed in producing the money the more desperate for it the appellant became.

8. (On the voir dire Mr Algie, for the appellant, sought to call a psychologist to give evidence of the temptation which the appellant, an apparently mentally normal man, must have experienced to do what Hunt asked of him so as to get the loan. The learned trial judge heard the evidence de bene esse but later rejected it, saying:-
    "Having heard it, I do not think that it takes me into
    areas where ordinary experience would not allow a
    reasonable judge or juror to form his own opinion about
    susceptibility to pressure and temptation.... It is only
    rarely that evidence to explain ordinary human behaviour
    is admissible. That is classically a matter for jury
    determination. In the present case I do not find the
    fact that a man succumbs to pressure and temptation so
    unusual that I feel I can be assisted by the evidence
    led. I rule that it is not admissible." The learned judge was quite right.)

9. There seems to be no evidence that prison officers may not borrow money from prisoners but it is so wrong a thing to do that I need no evidence to assume it is forbidden and regarded as a serious offence. Indeed the other count of improperly exercising public office was based on it.

10. Hunt told the police of his offer to the appellant and the appellant's acceptance.

11. The authorities - I use that wide term to embrace the prison administration and the police - suspected a drug ring at Yatala and other corruption amongst prison officers. There was at the most only a vague suspicion that the appellant, a man previously of good reputation, was involved in either. Yet when the police found that the appellant was prepared to take a loan from Hunt they decided to "test" him further. They learnt that the appellant had already done some favours for prisoners. Their first test was to get Hunt to ask the appellant to bring into the gaol pornographic literature for him. The appellant did so.

12. The police devised a scheme, with Hunt's help, to test the appellant further, this time in relation to drugs. That the police first introduced drugs into all this, is of significance: there had been no mention of drugs up to this point. Hunt was to ask the appellant to get some heroin for Hunt's de facto (not in gaol): the police would then "spring" the appellant.

13. Hunt may be a most untrustworthy person (the Crown did not call him, or his de facto, on the voir dire): certainly he did not follow the police scheme. The appellant said he needed $200 to buy the heroin: he could not get it on credit. The police supplied $200: Hunt's de facto gave it to the appellant: the appellant took the money into Yatala and gave it to Hunt: Hunt got heroin in the gaol and gave it to the appellant: the appellant took it out and handed it over to Hunt's de facto in exchange for a solicitor's trust account cheque for $10 000. He was then "sprung" by the police. (It will be noticed that Hunt had not followed police directions but changed the arrangement: that was a risk the police took in working with an unreliable person.)

14. The question is, was this entrapment? Were the actions of the police and of Hunt such that the evidence obtained by "testing" the appellant should not be used?

15. The answer is not easy. In R v Ridgeway (60 SASR 207) Matheson J quoted (at pages 230-231) Street CJ in R v Dugan ((1984) 2 NSWLR 554) describing the balance which a Court must keep: the quotation is apt:-
    "The Court is required to make a relative, balanced
    assessment of the interests of the community in
    facilitating the apprehension of offenders and bringing
    them to conviction, on the one hand, and, on the other
    hand, repudiating conduct and subterfuge in the processes
    of criminal investigation that are unfair or unlawful in
    the sense of bearing so gross a character as to offend
    relevant concepts of democratic decency.

The seriousness of the criminal conduct or plans being
    investigated will be relevant in arriving at this
    balanced assessment, as will be what is known or
    reasonably believed of the persons under investigation."

16. Cox J with his typical thoroughness, erudition and clarity considered at length the whole question of entrapment in The Queen v Vuckov and Romeo (40 SASR 498). I am content to accept his conclusions. At pages 522-523 he said:-
    " The discretion to stop the trial may be exercised in a
    defendant's favour where he was induced to commit the
    crime with which he is charged by the wrongful
    importunities of the law enforcement authorities or, in
    some circumstances, of someone acting in a relevant sense
    on their behalf ... Certain general propositions may be
    made. Obviously there will be no entrapment, in the
    relevant sense, unless the police or someone acting on
    their behalf incited the defendant to commit the crime
    with which he is charged. What the cases refer to as
    'ordinary solicitation' of a suspected person may not be
    offensive, but 'calculated inveigling or persistent
    importuning' will be ... There is no question, then, of
    the automatic exclusion of the kind of agent provocateur
    evidence that has been regularly admitted by the courts
    in betting and brothel-keeping and sly grog cases. In
    The Queen v. Veneman and Leigh, a procuring case, Bray
    CJ said: 'Evidence of this kind has been admitted in
    the criminal courts for centuries. It is commonplace for
    evidence to be given by a police officer that a licensee
    has, at his request, sold him liquor after hours, or that
    a bookmaker has, at his request, accept his bets. And
    such evidence has been given and admitted in the case of
    graver crimes: see R. v. Nation.'

However, the learned Chief Justice ... posed a
    distinction between this sort of case and 'a case where
    the Crown witness beguiles or seduces an unwilling
    accused to commit or attempt to commit the crime'. ...
    There is a big difference between talking a man into a
    crime that, left to himself, he was unlikely to commit,
    and merely giving him the opportunity to do what he was
    already disposed to do. However, evidence of
    predisposition is not the only factor. What the police
    and their agent did, in what manner and to what extent
    either may have exceeded the bounds of propriety, will be
    important, possibly all important. As the conduct of the
    police is under judgment, it will be relevant to consider
    whether they had good reason to suspect that the
    defendant would willingly commit the crime in question,
    and evidence that he had done the same sort of thing in
    the past may tend to show that he was very ready to
    offend on the occasion charged against him. The nature
    and magnitude of the particular offence may also be
    relevant factors. Methods that would be regarded as
    objectionable in the investigation of minor breaches of
    the law may have to be accepted in the case of very
    serious crimes."

17. There can be no doubt at all about the seriousness of corruption and drug running going on in gaols. The public interest demands that both should, if possible, be uncovered and stopped. I accept that that was the object of the exercise here. Was, though, what police did in relation to the appellant fair or did they go too far?

18. I have come to the conclusion that the police did go too far, for this reason. While the appellant had already been guilty of wrongdoing, in being prepared to take the loan and doing favours for prisoners, before the police came into it, and while they may have been otherwise generally suspicious about him, they had nothing specific on him in relation to drugs. It was they who first introduced drugs into the plot. There is no evidence at all to suggest that the appellant would have done anything about drugs had it not been for Hunt's request to him, prompted by the police and reinforced by the teasing over the loan.

19. It is not enough, as the Solicitor General argued it was, that the police were concerned with corruption generally. I notice that Cox J in Vuckov (it is in the passage I have already quoted) referred to inciting a defendant "to commit the crime with which he is charged". Here the charge is taking part in the supply of heroin. Were we considering the other count, abandoned by the Crown, the Solicitor General would have been on stronger ground.

20. By the time the notion of drugs was introduced the appellant was desperate for money and was being not merely teased but tortured by Hunt through delay in producing it. By then, having been "strung along" he would have done almost anything to get the $10 000. This amounted to "calculated inveigling if not persistent importuning." It was not fair. The unfairness outweighs the public interest.

21. In my view it would be unjust for the evidence obtained in this way to be led. I regret that I cannot agree with the conclusion of the learned trial judge.

22. The appeal should be allowed.

23. What then should we do? During argument there was uncertainty as to the proper course, whether we should grant a permanent stay of the prosecution or merely exclude the evidence. In Vuchov (at page 518) Cox J said:-
    " A stay of proceedings appears to me to be in principle
    a more satisfactory way of dealing with the problem, at
    least in the general run of cases, than simply excluding
    the evidence as having been unlawfully or unfairly
    obtained."

24. I accept that and suggest that we should grant a stay.

25. With the conviction the sentence (it was three years imprisonment with a two year non parole period, suspended) also falls. I should say that in my view were the conviction to be upheld then the penalty imposed was moderate, one with which I would not interfere.

26. I suggest that the appeal against conviction be allowed.