Ridgeway v R No. SCCRM 92/633 Judgment No. 3960 Number of Pages 31 Criminal Law and Procedure (1993) 60 Sasr 207 (1993) 69 a Crim R 480
[1993] SASC 3960
•17 June 1993
COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL LEGOE(1), MATHESON(2) AND DUGGAN(3) JJ
CWDS
Criminal law and procedure - Appellant convicted by verdict of a jury for possession of trafficable quantity of a prohibited import - appellant organized with Malaysian friend to purchase heroin and import it into Australia - friend was Malaysian police informant - on being informed of proposed transaction Australian and Malaysian police organized purchase of illegal importation of heroin - heroin imported into Adelaide by the police who also organized set-up to catch appellant - appellant is caught having just purchased the heroin - whether trial Judge should have exercised his discretion to exclude the evidence or order a stay or proceedings for public policy reasons given the illegal actions of police acts - Bunning v Cross
(1978) 141 CLR 54, Brian v Froud (1992) 63 A Crim R 9 at 11 and The People v O'Brien (1965) IR 142 at 174, applied. R v Chow (1987) 11 NSWLR 561, considered.
United Nations Single Convention on Narcotic Drugs 1961 - whether incorporated into the domestic law of South Australia at the time of the offence - consideration generally of when international conventions become binding upon individuals in Australia - the convention did not authorize the illegal actions undertaken by the police.
Crimes (Traffic in Narcotic Drugs and Psychotrpic Substances) Act (Cth) 1990 incorporates and adds to the articles of the convention - legislation did not justify actions of authorities as enacted after the offence occurred.
Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act (Cth) 1990.
Minister for Foreign Affairs and Trade v Magno (1992) 112 ALR 529; Dietrich v R (1992) 109 ALR 385 and Bradley v Commonwealth (1973) 128 CLR 557, applied.
Original solicitor who was also counsel for the appellant at the trial through no fault of appellant, or solicitor, was forced to withdraw from case due to a conflict of interest when co-accused represented by same counsel elected to make statement to police (at beginning of trial) - trial judge refused adjournment so appellant could find new counsel and have time to properly prepare the pretrial application for a stay of proceedings and exclusion of evidence - whether judge should have granted an adjournment - consideration of the principle of a fair trial in the light of the High Court decision in Dietrich v R (1992) 109 ALR 385.
HRNG ADELAIDE, 17-19 February 1993 #DATE 17:6:1993
Counsel for appellant: Mr M J Abbott QC
with Mr C J Caldicott
Solicitors for appellant: Caldicott and Co
Counsel for respondent: Mr D J Chapman
Solicitors for respondent: Director of Public
Prosecutions (Cwlth)
ORDER
Appeal dismissed.
JUDGE1 LEGOE J The grounds of appeal, as amended and as further amended during the hearing of this appeal, raise a number of important points in the proper administration of the process of criminal trials. 2. Grounds 1-3 relate to various applications made by the appellant to the trial court for a stay of proceedings. Those grounds are basically that the proceedings constituted an abuse of process. 3. Ground 2 relates to the learned trial judge's failure to exercise a discretion pursuant to Rules 8.01 and 8.02 of the Supreme Court Criminal Rules. 4. Ground 4 relates to the admissibility of evidence at the trial. Alternatively, the appellant claims in ground 4 that the learned trial judge should have exercised his discretion to exclude all evidence or to stay the proceedings. 5. Ground 5 complains that the learned trial judge erred in refusing the application for an adjournment to enable counsel to argue the applications for either a stay of proceedings or the exclusion of evidence. 6. Ground 6 complains of the learned trial judge's failure to give reasons for refusing to adjourn the case (ground 5) or give reasons as to the applications refusing a stay on the grounds of abusive process (grounds 1-3), or finally give reasons for refusing to exclude evidence (ground 4). 7. Grounds 7 and 8 were added by leave of the court during the hearing of the appeal on 19 February. Those grounds are: "7. The learned trial judge erred in holding that the Supreme Court Criminal Rules 1992 had not been complied with.
8. The learned trial judge erred in failing to rule on the application made by counsel for the appellant that all of the prosecution evidence should be excluded in the exercise of the learned trial judge's discretion." 9. On appeal, counsel for the appellant concentrated in his submissions on two main aspects of the criminal process in this matter, namely:-
1. The illegal actions of the Commonwealth Federal Police
and the Malaysian Police Force, particularly the late Inspector
Chong whose cross-examination at the preliminary hearing was
incomplete, and in fact never completed, because during an
adjournment of the preliminary hearing, Mr Chong died in a motor
vehicle accident in Malaysia. These illegal actions to which
frequent reference was made during the cross-examination at the
preliminary hearing involved:
(a) the purchase of the heroin overseas, in Malaysia by Lee and
Chong on 18 December 1989;
(b) the arrangements which were made in Malaysia to illegally
export the heroin from Malaysia by the Australian Federal Police
and Malaysian Police; and
(c) the actual illegal importation of that heroin into Australia
at the Adelaide airport in late December 1989.
2. The police involvement in the entrapment of the appellant
and another person by the name of Harvey when the heroin had
been illegally imported. This was organised by the Federal
Police and handed to Ridgeway at a motel in North Adelaide on
the day of the alleged offence. Counsel for the appellant made
it clear that the submissions that he put in relation to the
above two matters were all based essentially upon the
examination of the witnesses at the preliminary hearing.
Submissions were made on this basis because the appellant
claimed that the learned trial judge should have held a
pre-trial hearing in order to determine whether the illegal
importation of the heroin combined with the Federal Police
prosecution's knowledge of and implication in that importation
rendered the entrapment one that should be condemned by the
court. 10. The court was handed a synopsis prepared by counsel for the appellant of the evidence of, first, Inspector Chong and, secondly, Federal Police officer Sweeney, both of whom were called as witnesses at the preliminary hearing. Their evidence, and particularly their cross-examination, revealed a number of important facts relating to the arrangements that had been made for the heroin to be illegally imported. Mr Sweeney's evidence also related to the arrangements that had been made in Australia for the entrapment of the appellant. 11. Most of the facts were contained in an agreed statement which was submitted to this court some time after the conclusion of counsel's submissions. The agreed facts are conveniently set out in the reasons of my brother, Matheson J, a draft of which I have had the benefit of perusing. However, other facts which were contained in the synopsis were not agreed between counsel. These facts had emerged in the evidence of Chong and Sweeney at the preliminary hearing. A further document called Response to the Appellant's further 'list of facts' reads:
The respondent is unable to agree to those facts, in part
because those further facts were said by the Crown to be only an
allegation and not substantiated. Reference was made to a
letter written by Mr Butler dated 23 January 1990 to the
officer-in-charge of the international division of the
Australian Federal Police in Canberra. Further, the respondent
was unable to agree that Mr Lee had wanted to sell the heroin
for AUD$65,000. The only other comment in the Crown's response
to the appellant's list of further facts relates to the
statement that the purchasing of the heroin had been
"surreptitious". The respondent does not agree with this.
There was a further comment about the cross-examination on Mr
Chong's alleged indemnity he was asked about this and said that
it should be on the file in Malaysia. The respondent made no
other comments on the other paragraphs in the appellant's
further list. The respondent submitted that on the facts,
clearly the appellant instigated the importation of the heroin
by contacting Lee in Malaysia and requesting Lee to arrange for
the importation of the heroin. 12. The appellant was arrested by the Australian Federal Police on 31 December 1989 and charged with the two offences which are set out at the beginning of the reasons of my brother Matheson J. 13. The preliminary hearing commenced in the Adelaide Magistrates' Court in August of 1990. As disclosed in the affidavit of the appellant's solicitor filed in this court, the defence were informed "that the police informant Kim Chuan Lee was missing and would not be attending in Australia at the committal hearing". It appears he became a Baroness Orczy like character in that - "We seek him here, we seek him there. Those Frenchies seek him everywhere. Is he in heaven? Is he in hell? That damned elusive Pimpernel". 14. I agree with my brother Matheson J when he says that the learned trial judge "should have considered whether he should have exercised the discretion which he undoubtedly had to extend the time for making the application for the permanent stay, and should have ruled on the application after proper argument." I am of the view that the learned trial judge did not really deal with the submission which was rather obscurely put to him that the prosecution evidence should be excluded on the ground of illegality. 15. Counsel for the respondent, the Director of Public Prosecutions, very properly conceded that if this court thought there was anything in the arguments, they should be determined despite any procedural difficulties which may confront the appellant. But counsel for the respondent further submitted that the actions of the Royal Malaysian Police and of the Australian Federal Police were justified and indeed required by the provisions of the United Nations' Single Convention on Narcotic Drugs (1961, as amended by the 1972 protocol). The International Law Convention and its status in Australia The relevant portions of the Convention which was handed to the court by counsel for the respondent included the following:-
1. Article 33 relates to the possession of drugs and provides
"the parties (to the Convention) shall not permit the possession
of drugs except under legal authority".
2. Article 34 relates to the measures of supervision and
inspection. That article states that the parties shall require
that persons who obtain licences in accordance with the
Convention and those in a supervisory position in a State
enterprise established in accordance with the Convention have
adequate qualification for the execution of laws and regulations
enacted pursuant to this Convention. Further, all government
authorities, manufacturers, traders, scientists and scientific
institutions and hospitals shall keep appropriate records of
drug manufacture and individual acquisition and disposal.
3. Article 35, the important article relating to these
proceedings, is headed "Action against the illicit traffic".
That article has regard to the constitutional, legal and
administrative systems and provides that the parties shall -
(a) make arrangements at the national level for co-ordination
of preventive and repressive action against illicit traffic in
drugs and further may usefully designate an appropriate agency
responsible for such co-ordination;
(b) assist each other in the campaign against illicit traffic in
narcotic drugs;
(c) co-operate closely with each other and with competent
international organisations of which they are members with a
view to maintaining a co- ordinated campaign against the illicit
traffic;
(d) ensure that international co-operation between the
appropriate agencies be conducted in an expeditious manner; and
(e) ensure that where legal papers are transmitted
internationally for the purposes of a prosecution, the
transmittal be effected in an expeditious manner to the bodies
designated by the parties; this requirement shall be without
prejudice to the right of a party to require that legal papers
be sent to it through the diplomatic channel. 16. Sub-paragraphs (f) and (g) relate to the furnishing of information to the board and commission relating to illicit drug activity. Article 36 states that the parties shall adopt penal provisions relating to the cultivation, production, manufacture and extraction, preparation and possession etc of drugs contrary to the provisions of the Convention. Subsequent to the hearing of this appeal, counsel sent a letter to the court. The letter stated that the United Nations' Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances was adopted and open for signature at Vienna on 20 December 1988. Further, Australia became a signatory to the Convention on 14 February 1989. The Convention was adopted as part of the Australian Law by virtue of the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 which was proclaimed on 14 February 1992 (see Gazette No.4 of 1992). That Act makes provision with respect to the traffic in narcotic drugs and psychotropic substances in accordance with the United Nations' Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The Convention is referred to in the definition section of the Act, namely s.3 and is set out in Schedule I to the Act. In the Convention, Article 1 Controlled Delivery refers to the technique of allowing illicit or suspect consignments of narcotic drugs etc. to "pass out of, through or into the territory of one or more countries, with the knowledge and under the supervision of their competent authorities, with a view to identifying persons involved in the commission of offences established in accordance with Article 3, para.1 of the Convention". Psychotropic substance is defined in the Convention and clearly includes heroin. Article 3 refers to offences and sanctions whereby each party to the Convention shall adopt such measures as shall be necessary to establish as criminal offences under its domestic law when committed intentionally. The offences should include the possession or purchase of any narcotic drug or psychotropic substance for the purpose of any of the activities enumerated in the Convention. 17. Article 11 of the Convention provides more explicitly for controlled delivery, in particular allowing for the appropriate use of controlled delivery at the international level "on the basis of agreements or arrangements mutually consented to, with a view to identifying persons involved in the offences established in accordance with Article 3, para.1." Clause 2 of Article 11 states that decisions to use controlled delivery shall be made "on a case-by-case basis and may, when necessary, take into consideration financial arrangements and understandings with respect to the exercise of jurisdiction by the parties concerned". 18. I turn now to consider the arguments put to this court and how the international convention effects the issues raised in this appeal. The arguments on illegality. Counsel for the respondent submitted that the illegality in this case was technical as it was the appellant who had instigated this illegal importation. Reference was made to an aerogram written by the appellant to the wife of the police informer in Malaysia, Lee. This letter clearly implicated the appellant as the instigator of the heroin importation from Malaysia to Australia. Reference was also made to the fact that the appellant had flown to Singapore on two occasions using his brother's passport. He flew to Singapore and went on to Malaysia in between his fortnightly reports to the probation officer in Adelaide. These flights out of Australia were no doubt in breach of his parole conditions. There was further material, largely in the form of telegrams, suggesting that the appellant had contacted Lee while on these trips to Singapore and Malaysia. 19. Counsel for the respondent conceded that the importation was illegal, but he submitted that the persons involved, namely, Lee and Chong of the Malaysian Police had been given indemnities by the Malaysian authorities. Reference was made to the ministerial agreement which was tendered as an exhibit at the preliminary hearing. Counsel submitted that the ministerial agreement clearly envisaged that there would be situations where the Australia Federal Police would want to import a prohibited import like heroin in order to detect suspected criminals in Australia. It was therefore necessary to control the importation by ensuring that the prohibited import went through the Customs without being checked. Counsel classified this as a "controlled importation". The purpose of such an importation is to catch a suspect in this country. The appellant wanted Lee to bring the heroin to this country, and all his actions and contacts with Lee had been for this purpose. Accordingly, the Australian Federal Police arranged for the importation in order to catch the appellant "red handed". When assessed in these circumstances counsel for the respondent submitted further that the police actions were more justified than the appellant's rights because the appellant had engineered and instigated the illegal importation. When this heroin was purchased in Malaysia and brought to Adelaide it was done at the express request of the appellant. The purpose of purchasing the heroin by Lee in Malaysia and then bringing it into Australia was in order to make contact with the appellant who would test the heroin for quality before paying the full amount for it. 20. These submissions then led counsel for the respondent to inform the court of the Single Convention on Narcotic Drugs referred to above. The court invited counsel to submit further details on the Convention, in particular, whether that Convention had been signed and ratified by Australia. Further the court requested counsel to ascertain whether any legislation had been passed in Australia incorporating the Convention. Counsel for the appellant agreed that if the Convention had been ratified then it should be made available to the court. This Convention had never been mentioned to the learned trial judge. 21. When examined it appeared that the 1961 Convention, only part of which was handed to the court, did not refer to "controlled importation". That expression only appeared later in the 1990 Commonwealth legislation which is discussed above. 22. Both counsel referred the court to R. v Chow (1987) 11 NSWLR 561. In that case, the Thai and Australian Federal Police arranged an importation of heroin as part of a plan to allow it to be imported under surveillance with a view to catching those concerned with its purchase. The Australian Federal Police took possession of it for a time and substituted plaster of Paris for most of the heroin. The police then allowed those concerned to take possession of the container and some of the heroin. There is no suggestion in the report that the Australian police played any part in the acquisition of the heroin in Thailand. The Court of Criminal Appeal in New South Wales held, firstly, that the police are bound by the Customs Act and the heroin was imported in contravention of this Act. Secondly, that it was still a prohibited import notwithstanding that the heroin had been handled by the police. His counsel argued that the appellant Chow submitted that the heroin had been imported by the Commonwealth and so was not in contravention of the Act (see p.565G). The Commonwealth is immune from the operation of the Criminal Law, see Cain v Doyle (1946) CLR 409 at 417-418 per Latham CJ In A v Hayden (1984) 156 CLR
532, the High Court pointed out that the executive has no power to authorise a breach of the law. The court in Chow's case thus held that the importation was illegal. In the case at bar counsel for the respondent conceded that the decision in Chow applied and that the importation in this case was illegal. What was the appellant's involvement? I have already referred to the letter written by the appellant to Lee, and to the appellant's flights to Singapore and Malaysia, as well as his contact with Lee while on those trips. There seems little doubt that it was the appellant who in fact organised this importation. However, that matter was never really canvassed in any of the discussions before the learned trial judge and of course there was no evidence in that regard. The learned trial judge could well have inferred from the circumstantial material that it was the appellant who instigated the importation of the heroin. However, it seems equally clear, although again it has not been determined by the learned trial judge, that the Malaysian police, the Australian Federal Police, through a Mr Butler, became involved and implicated in making the arrangements for the purchase of the heroin and the bringing of that heroin to Australia. 23. The section under which the appellant was convicted is one where in most cases the prosecution have no actual knowledge of the person who illegally imported the heroin or prohibited import. In most cases the prohibited importation is to be inferred by the jury from the fact that the drug (heroin) is not manufactured in Australia and distributed other than under licence. In this case, before the heroin was even purchased the authorities organised the commission of another crime by their own officers and that of the Malaysian Police in order to trap the appellant in North Adelaide. Direct evidence could be given that this heroin was an illegal import. The appellant was probably in breach of his parole when he flew to Singapore and Malaysia on the two occasions on his brother's passport. The appellant may well have committed an offence by sending the aerograms or a conspiracy in making arrangements for the importation. There was evidence available to the prosecution against the appellant before any of the arrangements were made. The circumstances are therefore very different to the authorities referred to this court including that of R. v Chow (supra). Conclusion. 24. In my opinion, the material which was established largely by way of cross-examination at the preliminary hearing was sufficient to enable the court to determine on an application for a stay of proceedings or an exclusion of evidence the following matters:-
1. The appellant and Lee were in gaol in Adelaide together.
2. When Lee was released on parole he was deported back to
Malaysia.
3. The appellant made the approaches to Lee some time in 1989
and actually went to Singapore and Malaysia on two occasions
when he made contact with Lee.
4. Lee was, unbeknown to the appellant, a police informer at
that stage. Lee contacted Mr Chong of the Royal Malaysian
Police. Mr Chong contacted Mr Butler who became involved in
arranging for certain payments to be made to Lee. It seems
clear that Lee was in fact paid AUD$9,000 on his return to
Malaysia. His travelling expenses and a daily allowance while
in Australia were also paid by the Australian Police. There is
some dispute as to whether Lee was to received the AUD$65,000
proceeds of the sale of the heroin in Adelaide to the appellant.
5. Lee purchased the heroin somewhere in Malaysia.
6. Flights to Adelaide were arranged by the Australian
authorities for Lee and Chong. The heroin was actually smuggled
into Australia in a camera bag in the possession of Chong. It
would appear that the criminal offences which were committed
were:-
(a) In Malaysia, the possession of a large amount of heroin for
which very severe penalties including execution are carried out
under Malaysian law.
(b) In Adelaide there was an illegal importation of a prohibited
import, namely, heroin.
(c) The entrance of a deportee into Australia, namely, Lee, by
arrangement with the Australian officials including Mr Butler in
Kuala Lumpur and the Australian Federal Police in Canberra and
the Australian Federal Police in Adelaide.
7. Mr Sweeney, a member of the Australian Police Force, was
actively involved in the illegal importation in that he
organised with the Customs officers at Adelaide airport to let
Inspector Chong, with his camera bag containing the heroin, and
Lee, a prohibited deportee, come through the Customs area,
unsearched, unquestioned and with express directions being given
to the Customs officials as to how they were to be brought
through the Customs area.
8. The heroin was the bait used to enable Lee to contact the
appellant and bring him to the motel at North Adelaide where the
heroin was situated. It appears from the evidence that Mr Lee
made personal contact with Ridgeway in and about Adelaide or the
suburbs during the period prior to the actual arrest of the
appellant at the motel at North Adelaide.
9. The important evidence of Lee has never been available to
the defence for cross-examination as he disappeared in Malaysia
before the committal hearing commenced. The evidence of Mr
Chong at the preliminary hearing was never completed because of
his death. The question is whether the International Convention
was part of the municipal law of Australia at the relevant time
(December 1989) thus justifying the series of acts referred to
above. If the International Law Convention cannot be relied
upon at the relevant time then the extent of the illegal conduct
of the prosecution witnesses should be assessed and compared
with the extent of the appellant's alleged illegal conduct in
relation to the importation of the heroin. It is then that the
Bunning v Cross (1978) 141 CLR 54 discretion should be
considered by the court. The mere fact that the importation of
this heroin by the prosecution witnesses was an illegal act did
not render the evidence inadmissible, cf. Brain v Froude (1992)
63 A Crim R 9 at 11 per Legoe J citing the judgment of Stephen
and Aitken JJ in Bunning v Cross (supra) at pp.66, 74 and as to
the various factors to be taken into account when exercising the
discretion to exclude evidence at pp.77-80. Cox J in Brain v
Froude (supra) at p.16 pointed out that non-compliance with the
law by the police in that case did not render the evidence
inadmissible, but - "It will simply raise a question whether
the evidence should be excluded, in the exercise of the court's
discretion, on the ground that it was unlawfully obtained".
(The emphasis is mine.) Both counsel referred to a recent decision of the Queensland Court of Appeal, The Queen v Stead (judgment delivered 12 June 1992). The Court was there concerned with "Operation Trident", a plan developed by the Queensland police to infiltrate the ranks of persons engaged in stealing motor cars in and around Brisbane for the purpose of resale. A witness named Anthony Reisenweber became a paid police informer and was given an indemnity dated 5 October 1989 and signed by the Attorney-General. But that indemnity was "in respect of any act reasonably and necessarily done by him for the purpose of assisting police investigations in the course of police operation code-named Operation Trident ...". That indemnity was also conditional upon Reisenweber attending and "truthfully give evidence" in court as requested by the prosecutor in the proceedings arising out of Operation Trident. The first six cars had already been stolen before Operation Trident came into effect. The subsequent 18 offences were all carried out under "the cover of Operation Trident, in which the police and police agents had participated extensively by assisting, directly or indirectly in the unlawful activities of stealing, stripping down and disposing of vehicles" (pp.4-5). 25. Stead's case was the sequel to R. v D'Arrigo (1991) 58 A Crim R 71 , a decision of another Court of Criminal Appeal in Queensland. In accordance with the decision in D'Arrigo the court in Stead's case (supra) held that: (1) the indemnity given to Reisenweber was invalid; and (2) the evidence of Reisenweber ought not to have been admitted at trial. McCrossan CJ considered that the Law Ministers of the Crown "are not above the law and are not possessed of the dispensary power which the terms of indemnity would imply". The other judges, de Jersey and Dowsett JJ thought that it was inconsistent with the "rule of law" for the Executive to grant an purported indemnity in respect of criminal acts to be committed in the future. 26. Clearly the evidence of Reisenweber was bound up with the law enforcement authorities participation in the illegal scheme and excluded because the court disapproved of the extent of such illegality. De Jersey J said that the illegality was "of such serious proportions that the court should not countenance reliance by a jury on evidence obtained by means of it" (p.77). Dowsett J said it "was obtained by a process so tainted by illegality as to dictate its exclusion" (p.79). The case of Bunning v Cross (supra) was the centrepiece for the court's decision. The Court of Appeal in Stead's case held that the indemnity in respect of crimes to be committed in the future was "illegal" and "void and of no effect" adopting the language of the Declaration of Rights of 1688. The court observed that the principles of Bunning v Cross (supra), are nearer to the rules adopted in Scotland and Ireland. See Lawrie v Muir (1950) SLT 37 at 39, 40 referred to in Bunning v Cross (supra), at 76 per Steven and Aitken JJ and The People v O'Brien (1965) IR 142 at 147 where the Irish court considered the nature and extent of the illegality and -
"whether it was intentional or unintentional and if intentional
whether it was the result of an ad hoc decision or represented a
separate deliberate policy; whether the illegality was of a
trivial and technical nature or a serious invasion of important
rights the recurrence of which would involve a real danger to
necessary freedom; whether there were circumstances of urgency
or emergency which provide some excuse for the action; and the
nature of the crime being investigated." (emphasis mine, see
p.160) It is therefore necessary to consider the circumstances relevant to the exercise of the court's discretion to exclude the evidence. In my judgment this is the central issue which the court should have determined in this case at the pre-trial stage. For the reasons which I now give in concluding this appeal I consider that the appeal should be allowed, the conviction set aside and the appellant be retried with a full pre-trial hearing on the applications for exclusion of evidence. 27. The nature and extent of the illegality in this matter is such that it was intentional and carefully contrived by the two police forces. It is not a trivial nor a technical illegality. It was a serious breach of the laws of Malaysia and Australia and possibly Singapore. The illegal importation was not authorised nor justified by the municipal laws of this country at the time. The conviction relating to narcotic drugs only became part of the domestic law of Australia on 14 February 1992. This offence occurred in late December 1989. At that time the Convention did not authorise the Executive nor the police in Australia to break the law. See Bradley v The Commonwealth (1973) 128 CLR 557; Barwick CJ and Gibbs J (as he then was) when speaking of s.3 of the Charter of the United Nations Act 1945 said at p.582 that it was -
"no doubt an effective provision for the purposes of
international law, but it does not reveal any intention to make
the Charter binding upon persons within Australia as part of the
municipal law of this country, and it does not have that effect.
Since the Charter and the resolutions of the Security Council
have not being carried into effect within Australia by
appropriate legislation, they cannot be relied upon as a
justification for executive acts that would otherwise be
unjustified, or as grounds for resisting an injunction to
restrain an excess of Executive power, even if the acts were
done with a view to complying with the resolutions of the
Security Council." 28. In Dietrich v R. (1992) 109 ALR 385 at 434 lines 40-42, Toohey J said that where "no international instrument upon which the applicant may successfully rely has been incorporated by legislation into Australian municipal law" then inter alia, no reliance can be placed upon the international provision. 29. In The Minister for Foreign Affairs and Trade v Magno (1992) 112 ALR 529 at 534-535, Gummow J summarised the rules as:-
1. The basic proposition that if the international obligation
involves enforcement in the courts which is not already
authorised by municipal law, legislation is needed to make the
necessary changes in the law or equip the Executive with the
necessary means to execute the obligation; it is for the
Parliament and not the Executive to make or alter municipal law.
His Honour then cites a number of authorities for that
proposition including Dietrich v R. (supra).
2. Not all legislative approval of treaties or other
obligations entered into by the Executive renders the treaty
binding upon individuals within Australia as part of the law of
the Commonwealth, or creates justiciable rights for individuals,
e.g. s.3 of the Charter referred to in Bradley's case (supra),
and the passage in Dietrich v R. (supra), in the judgment of
Toohey J.
3. Parliament may make no attempt to incorporate expressly into
domestic law the terms of a Convention which has been ratified
by Australia. Such a Convention may be resorted to in order to
help resolve an ambiguity in domestic, primary or subordinate
legislation. Clearly that is not the case here. In the case at
bar Parliament has in 1992 passed legislation in different terms
to the 1961 Convention. The 1992 legislation is not ambiguous.
4. In some cases, notwithstanding the absence in the statute of
any reference to a particular international obligation, it may
be evident that the statute adopted the nomenclature of a
Convention in anticipation of subsequent Australian
ratification. If so, where the language of the statute is
ambiguous it is permissible to refer to the provisions of the
Convention to assist resolution of an ambiguity. Once again
that is not the situation here.
5. Difficult questions of administrative law and judicial
review arise where, whilst the international obligation or
agreement in question is not in terms imported into municipal
law and the municipal law is not ambiguous, nevertheless, upon
the proper construction of the municipal law, regard may be had
be a decision-maker exercising a discretion under that law to
the international agreement or obligation. The case at bar does
not fit neatly into any of these categories but questions arise
out of 3 and 5 above. The extent of the illegality 30. The extent of participation in the illegal acts by Malaysian Police, the Australian Federal Police and the Customs officers at the Adelaide International airport, was in general:-
(a) the arrangements made with the paid police informer Mr Lee,
including what payments were actually made to him for the
purchase of the heroin in Malaya; and
(b) what Lee was to do with the heroin when purchased;
and
(c) what further role he was to play in the operation planned by
the Federal Police in Canberra. 31. The above are all relevant considerations in assessing the so-called balancing process for the exercise of the Bunning v Cross (supra), discretion. 32. The nature of the crime for which the appellant was convicted is clearly one which was very serious. Investigations should have been carried out, in my opinion, of the other possible offences which were perhaps just as serious, namely, the apparent attempt to illegally import heroin or the conspiracy to import between himself and Lee. But that all points to the difficulty that the prosecution may have been faced with when relying on the evidence of a police informer who was in fact a convicted criminal in this country and who had been deported. Ever since the appellant was arrested, the whereabouts of Mr Lee has remained elusive. Clearly, his evidence is significant and important from the point of view of the illegal importation of the heroin traced back to its purchase in Malaysia. The prosecution were fully aware of this. 33. Finally, in relation to the ground of appeal which alleges that the learned trial judge was in error in refusing an adjournment to enable counsel to properly argue the application for which notice had been given (ground 5), reference may again be made to Dietrich v R. (supra). When at the trial stage the prosecution filed a fresh and separate information charging the appellant alone with two offences and dropping the co-accused Harvey from the information, the appellant's counsel was forced to withdraw. The appellant was allowed a short adjournment to enable other counsel to be instructed. But nevertheless, the counsel of his choice had withdrawn from the case. In Dietrich v R. (supra), Mason CJ and McHugh J identified what the majority of the court considered to be the approach which should be adopted by a trial judge who is faced with an application for an adjournment or stay by an indigent accused charged with a serious offence who, through no fault on his or her own part, is unable to obtain legal representation. At p.399, their Honours said:-
"In that situation, in the absence of exceptional circumstances,
the trial in such a case should be adjourned, postponed or
stayed until legal representation is available. If, in those
circumstances, an application that the trial be delayed is
refused and, by reason of the lack of representation of the
accused, the resulting trial is not a fair one, any conviction
of the accused must be quashed by an appellate court for the
reason that there has been a miscarriage of justice in that the
accused has been convicted without a fair trial." 34. Although in the present case, the appellant did obtain other counsel for the purpose of making submissions on the applications for a stay or exclusion of the evidence, I am of the opinion that in the whole of the circumstances here the learned trial judge never had the opportunity to determine the real issues in the case. In other words, the question of illegality and the extent of the illegality and the reasons which the prosecution have now put forward to justify that illegality were never made available to the learned trial judge. To ensure a fair trial it was essential to determine what evidence, if any, should be excluded. 35. For these reasons I am of the opinion that the appeal should be allowed, the conviction quashed and the matter sent back for re-trial.
JUDGE2 MATHESON J The appellant was originally charged with Murray James Harvey on an information filed in the Supreme Court containing two counts, namely:
" STATEMENT OF OFFENCE 1.
Possess Prohibited Import (Heroin) Section 233B (l)(c) Customs
Act 1901 PARTICULARS OF OFFENCE JOHN ANTHONY RIDGEWAY and MURRAY
JAMES HARVEY on about the 31st day of December 1989 at the Old
Adelaide Inn, O'Connell Street, North Adelaide in the said
State, without reasonable excuse had in their possession a
prohibited import, namely 140.4 grams of heroin being not less
than the trafficable quantity, to which section 233B of the
Customs Act applies and which had been imported into Australia
in contravention of the Customs Act 1901.
STATEMENT OF OFFENCE 2.
Possess Prohibited Import (Heroin) Section 233B(l)(ca) Customs
Act 1901 PARTICULARS OF OFFENCE JOHN ANTHONY RIDGEWAY and MURRAY
JAMES HARVEY on about the 31st day of December 1989 at the Old
Adelaide Inn, O'Connell Street, North Adelaide in the said
State, without reasonable excuse had in their possession a
prohibited import, namely 140.4 grams of heroin being not less
than the trafficable quantity, to which section 233B of the
Customs Act applies, and which is reasonably suspected of having
been imported into Australia in contravention of the Customs Act
1901." 2. They were arraigned before Mullighan J in the Supreme Court on 22 July, 1991 and both pleaded not guilty to both counts. On 21 August, 1991, Duggan J remitted the matter to the District Court. On 28 July, 1992 Burnett J in the District Court ordered that Harvey have a separate trial and that his name be severed from the information. The trial of the appellant commenced on 4 August, 1992. He did not give evidence on the voir dire or at the trial. When His Honour came to sum up to the jury, there was no dispute that the heroin had been imported into Australia in contravention of the Customs Act, and he instructed the jury that they need only consider the first count. The jury convicted the appellant on that count, and he was sentenced to twelve years imprisonment with a non parole period of eight years. 3. On appeal, his counsel, Mr. Abbott QC, has argued that the learned trial judge should have permanently stayed all further proceedings on the information before the actual trial commenced on the ground that the prosecution evidence was obtained in consequence of the illegal and unfair actions of the Australian Federal Police and others. In the alternative, he argued that his Honour should have excluded the prosecution evidence on grounds of public policy. 4. Before discussing the substantive issues thus raised, it is necessary to refer to the agreed facts and to the setting in which, and the manner in which, those issues were raised before the learned judge. 5. The appellant and Kim Chaun Lee ("Lee") were in prison together in South Australia during 1985-1987. The appellant was serving a lengthy sentence for a number of offences involving the drug cannabis. Lee had been imprisoned for importing heroin into Australia. Lee was released from prison on 9 August, 1987, and deported to Malaysia, where he became an informer for the Royal Malaysian Police Force. From an unspecified date in 1987, he was "run" as an informer by Thian Soo Chong ("Chong"), who was an Assistant Superintendent of Police in the Royal Malaysian Police Force and attached to the Anti Narcotics Branch at Kuala Lumpur. 6. The appellant was released from prison on parole on the 24 February 1989. Conditions of his parole included a condition that he report weekly in person to the parole officer under whose supervision he had been placed, and that he not depart the State of South Australia without the prior written permission of the parole officer. On 9 May, he requested permission to travel to Manila. Permission was refused. On 28 July, the appellant applied for, and subsequently obtained, a passport. On 19 August, his brother, Alan Ridgeway, applied for and subsequently obtained a passport. 7. On 24 August, the following telegram was sent by the appellant to Lee addressed to Lee's wife, Lin Soo Har, at 458 S.G.Chua, Kajang, Selangor, Malaysia: "Lee phone me reverse charges Adelaide 08 266 0747. JR." 8. On 14 September, the appellant attended an interview with his parole officer at 195 Victoria Square, Adelaide. On the same day, he sent a telegram to Lee addressed to Lin Soo Har: "Lee arrive Singapore tonight will stay at Hotel Negara. Look forward to seeing you. JR." He departed from Adelaide for Singapore, also on the same day, using the passport of Alan Ridgeway. He stayed at the Hotel Negara from 14 to 16 September under the name Alan Ridgeway. He then stayed at the Century Park Hilton, Singapore from 16 to 20 September under the name Alan Ridgeway. Travelling on the passport of Alan Ridgeway, the appellant arrived back in Adelaide on 21 September from Singapore. He attended an interview on 22 September with his Parole officer at 195 Victoria Square, Adelaide. He sent a telegram to Lee addressed to Lin Soo Har on 26 September: "Lee, Sorry I missed your call. I had a good holiday. Please ring me tonight at 8.30 or tomorrow night. JR." 9. Lee made telephone contact with Chong on 29 September, and they met later that day. Several other meetings between them followed. A telegram was sent by the appellant to Lee addressed to Lin Soo Har on 4 October: "Lee, important ring me tonight 8.30 pm Adelaide time I will be waiting end of month time is urgent. JR." 10. He sent an aerogram to Lee addressed to Lin Soo Har dated and Postmarked "Adelaide 4 October", which read, (my underlining):
"Hello Lee, Well Lee I have been waiting for your friend to
arrive or else a phone call from you to explain what is
happening but I have received nothing so I thought it best if I
write to you] Lee, time as I explained is very important what I
said I can do I can and will but without your help nothing can
happen; the chance to make sure you have comfort and security is
offered to you with trust and friendship the decision is yours
but if anything is going to happen you must make it happen very
soon; ring me at least and let me know your thoughts I give you
telephone no.3325092 you can get me almost any night around 8.00
Adelaide time. If you feel it is necessary I can come and see
you again but everything is as I explained no problems just get
your friend over here for a holiday as soon as possible; or at
least let me know if you cannot so that I can if need be go to
another person in another place; Lee I sincerely hope that that
will not be necessary. The opportunity I offer is real and just
waiting to happen if you wish it too; please let me hear from
you as soon as you get this letter. Your friend. JR." 11. Lee handed the above aerogram to Chong at a meeting on 7 October. A telegram was sent by the appellant to Lee addressed to Lin Soo Har on 24 October: "Lee; Will arrive Q(u)antas flight 81 Thursday 26th if possible meet me at Changi or Lady Bird Hotel. JR." He attended an interview on 25 October with his parole officer at 195 Victoria Square, Adelaide, and departed from Adelaide for Singapore on 26 October using the passport of Alan Ridgeway. He checked into Orchard Hotel, Singapore on 26 October, and stayed until l November under the name Alan Ridgeway. Lee attended a meeting with Chong, Chong's superior officer, and Superintendent Butler, the Australian Federal Police Liaison Officer stationed at Kuala Lumpur, on 31 October. The appellant, using the passport of Alan Ridgeway, arrived in Adelaide on 2 November. A telegram was sent by him to Lee addressed to Lin Soo Har on 6 November: "Lee Mr and Mrs Collins Hotel Furama Singapore, ring me tonight. JR." A further telegram was sent by him to Lee addressed to Lin Soo Har on 15 November: "Lee ring me tonight to confirm arrival. JR." 12. A lettergram was sent by Lee to (and received by) the appellant on 5 December: "John. Lee visit next week. Holiday passport done visa next week. Wait call urgent see you patient wait. Lee." A further lettergram was sent by Lee to (and received by) the appellant on 11 December: "John visit holiday this week confirm I call you if arrived be happy see you soon. Merry Christmas. Lee." 13. Lee and Chong bought approximately 230 grams of heroin in Malaysia on the 18 December. A telegram was sent by the appellant to Lee addressed to Lin Soo Har on 19 December: "Lee urgent you ring me tonight. Are you coming on holiday or not. Cannot wait - ring me. JR." 14. Lee and Chong arrived at Adelaide airport from Singapore at 7.05 a.m. on 29 December, 1989. Chong was in possession of the heroin contained in a plastic bag inside a tissue box which was in a camera bag. Lee and Chong were met by Australian Federal Police officers at the airport and taken to the O'Connell Inn, North Adelaide. The appellant and Lee were seen to meet outside the Victoria Square Arcade at 12.38 p.m. Lee then went with the appellant to a restaurant on Goodwood Road where they stayed for about one hour. They then travelled to Le Hunte Street, Wayville before the appellant drove Lee to Victoria Square and left him there at 2.11 p.m. Lee then returned to the O'Connell Inn. At about 3.30 p.m. at the O'Connell Inn, Chong removed a sample of heroin with a tooth pick from the plastic bag, placed it into a red top plastic seal bag and handed it to Lee who placed it in a cigarette packet. At about 5.15 p.m., Lee was driven to the vicinity of the Central Market and he sat on a park bench opposite the Hilton International Hotel. At about 5.30 p.m., the appellant joined Lee on the park bench and they appeared to have a conversation. They then walked towards the Central Market and parted company at 5.38 p.m. Lee returned to the O'Connell Inn at 5.45 p.m. The next day at about 11.07 a.m. the appellant and Harvey met Lee at a sidewalk cafe on the western side of Victoria Square. At about 11.40 a.m., the three left the cafe, the appellant and Harvey going to a vehicle registration number SZS-776 and driving away, and Lee continuing on foot. Lee returned to the O'Connell Inn at about 12.00 noon. At about 12.08 p.m. at the O'Connell Inn, Chong removed another sample of heroin from the plastic bag using a tooth pick, placed it in a small piece of silver foil and placed that in a cigarette packet. A short time later Lee left the O'Connell Inn with the cigarette packet. At 12.16 p.m. the appellant parked the same vehicle outside 535 Port Road, Croydon Park and then entered that address. At 12.24 p.m. he came out carrying a white plastic shopping bag and got into the vehicle and departed. At 12.59 p.m., he met Lee in Victoria Square, and both walked to the same vehicle. The appellant, Harvey, Lee and a fourth man left in the vehicle and travelled to 55 Le Hunte Street, Wayville. At 1.36 p.m. the four left in the vehicle and travelled to Victoria Square. Lee alighted from the vehicle at 1.41 p.m. outside the Samuel Way Building, Victoria Square and the others drove off. 15. On 31 December, Chong and Lee left the O'Connell Inn at about 8.00 a.m. and went to Australian Federal Police regional headquarters. Lee made a telephone call. At about 9.30 a.m. Chong, Lee and Australian Federal Police officers, including Detective Sergeant Sweeny and Detective Constable McAtee, travelled to the Old Adelaide Inn, 160 O'Connell Street, North Adelaide and went to Room 118. On the same day, the appellant drove the same vehicle, with Harvey as a passenger, to the Shell Service Station at the corner of Barton Terrace and O'Connell Street, North Adelaide. They arrived at about 10.14 a.m. At about 10.16 a.m, Chong and Lee walked from the Old Adelaide Inn to the Shell Service Station, where they met the appellant and Harvey, and the four of them walked to the Old Adelaide Inn and entered the front doors at about 10.20 a.m. They then entered Room 188. At about 10.37 a.m. Harvey and the appellant came out of the room. The appellant was carrying a beige camera bag. When Sweeny said: "Federal Police Drug Unit, don't move", the appellant dropped the camera bag. 16. McAtee then had a conversation with the appellant: "McAtee said: 'Who does the camera bag belong to?' (pointing to a beige camera bag lying on the floor about one metre away) Ridgeway said: 'It's not mine, I've never seen it before, it's not mine.' McAtee said: 'I saw you carrying it a few moments ago.' Ridgeway said: 'No it's not mine, I don't know anything about it.' 17. The camera bag contained a tissue box, which contained a plastic bag containing heroin hydrochloride of a net weight of 203 grams. This consisted of 140.4 grams of pure heroin. The appellant and Harvey were arrested. Sometime after 4.25 p.m. on the same day Australian Federal Police attended at the Shell Service Station on O'Connell Street. The same vehicle was still at that location and was searched. Located on the floor behind the driver's seat was a white shopping bag, tied at the handles. The bag contained a cardboard box containing a set of scales and a box containing a set of weights. 18. After the appellant's arrest, the firm of Caldicott and Co. were instructed to act for him, and apparently for Harvey also. At the committal hearing in the Adelaide Magistrates Court, Mr. Abbott, QC appeared for the appellant, and Mr. C J Caldicott for Harvey. Lee was not called as a witness. The police stated that he could not be found. Chong and Sweeny gave evidence, and a lot of documents were tendered. Chong returned to Malaysia, and before the committal hearing was completed and the appellant and Harvey were committed for trial, Chong was killed in a motor vehicle accident. Subsequently, unsuccessful representations were made to the Director of Public Prosecutions on behalf of the appellant and Harvey to drop the charges. The representations were partly based on the illegal actions of the Australian Federal Police. 19. The first case came on before Burnett J in the District Court on 14 July, 1992. Mr. D. H. Peek appeared for the Director of Public Prosecutions, Mr. Caldicott appeared for the appellant and Mrs. M. Shaw appeared for Harvey. Mr. Caldicott said his firm was no longer acting for Harvey and that the Legal Services Commission was acting as his solicitor. It is convenient to mention here that Mr. Abbott, QC ceased to act for the appellant before the completion of the committal hearing because of a commitment in a Royal Commission. After legal argument, Mr. Peek obtained an adjournment to 15 July to discuss certain matters with Mrs. Shaw. On 15 July, Mr. Peek told his Honour that Harvey wished to give a full statement to the Australian Federal Police, and the matter was adjourned until 17 July. 20. Early on 17 July, Caldicott and Co. filed an application in the District Court. I set out the relevant parts thereof, (the curious numbering is explicable by the filing of earlier applications):
" ADDITIONAL APPLICATION of JOHN ANTHONY RIDGEWAY of 53
Le Hunte Street, Wayville in the State of South Australia hereby
applies to the Court seeking the making of the following orders:
7-8 ...
9. That this Honourable Court orders a permanent stay on the
proceedings against John Anthony Ridgeway as the evidence
obtained against John Anthony Ridgeway was either illegally
obtained or obtained in unfair means and unfair manner or
alternatively for policy reasons the evidence should not be left
for policy reasons to discourage the Australian Federal Police
from engaging in activities of importation of heroin.
Particulars of the grounds relied upon are as follows:-
7-8 ...
9. That a permanent stay of proceedings should be granted as it
would appear:-
(a) That the Australian Federal Police Liaison Officer Mr.
Butler was actively involved in the purchase of the heroin.
Thereafter the Australian Federal Police were actively involved
in importing into Australia a prohibited substance, namely
heroin thereby committing an offence both under Federal Law and
under State Law.
(b) For policy reasons the Court should not sanction the
importation of heroin by the Australian Federal Police which in
itself is an illegal activity.
(c) The Courts cannot condone an activity of extortion which was
being sanctioned by the Australian Federal Police on their case
by Lee to Ridgeway." 21. It appears that this application was not served on the Director of Public Prosecutions, and that his Honour and Mr. Peek only learned of it on 20 July, but learn of it they did. 22. When Burnett J sat on 17 July, Mr. Caldicott sought and obtained leave to withdraw from the case because his previous client Harvey had by then given a statement to the police and might be called as a witness, and Mr. Caldicott feared a conflict of interest might arise. The case was again adjourned until 20 July, when the appellant told his Honour that he was still trying to get counsel. The case was then adjourned until 22 July, when Mr. Michael Waye announced that he was appearing for the appellant. He said he had not yet been able to brief counsel, and the case was again adjourned until 28 July. It was on 28 July that Harvey's name was deleted from the information. Mr. Michael Waye announced that Mr. Peter Waye had been briefed as counsel, and could appear at the actual trial fixed to start on 4 August. Mr. Michael Waye then put a number of arguments to the learned judge. Understandably, bearing in mind the number of issues involved and their complexity, Mr. Waye was insufficiently prepared. Possibly unaware of the application filed by Caldicott and Co. on 17 July (supra), he had filed the previous day an application in the District Court, the relevant parts of which I set out:
" APPLICATION of JOHN ANTHONY RIDGEWAY hereby applies to the
Court seeking the making of the following orders:-
l. A declaration that the laying of the Information by the
respondent against the applicant constitutes an abuse of the
process of this Honourable Court.
2. A declaration that the continuance of the proceedings in
respect of the Information laid by the respondent constitutes an
abuse of the process of this Honourable Court.
3. An order prohibiting the respondent from further proceeding
upon or pursuing the said Information.
4. In the alternative an order staying permanently all further
proceedings upon the Information laid by the respondent.
5. In the alternative an order dismissing the Information laid
by the respondent against the applicant.
6. In the alternative an order quashing the Information laid
against the applicant by the respondent.
7. Such other order or orders as this Honourable Court deems
fit.
Particulars of the grounds relied upon are as follows:-
1. There have been no efforts to find a person by the name of
Lee.
2. Applications by Mr. Ridgeway's former solicitor to have the
matter re-listed have been refused as has one of my
applications.
3. The defence case can never be put as Lee was not called and
Chong is allegedly dead. The defence cannot cross-examine on
documents produced.
4. Exhibits in this matter have been destroyed or placed in a
position where the defence cannot have them examined." 23. Mr. Michael Waye's arguments on 28 July commenced with an application that the case be taken out of the list because he had had insufficient time to prepare the defence. His arguments also included an argument that the judge should exclude all the prosecution evidence on public policy grounds, and in particular because of the illegal actions of the police. He made brief submissions on his application for a permanent stay, but curiously did not seek to rely in that connection on the illegal actions, but relied, inter alia, on the unavailability of Lee and Chong. Subsequently, Mr. Peek addressed his Honour at length, and informed him, inter alia, that he was no longer going to seek to tender Chong's deposition. He did not really address on the aspect of the illegal actions by the police. Before Mr. Peek completed his address, the learned Judge said that he had "checked", and found that the abuse of process application was "well and truly out of time", and said that he was going to rule that he would not hear that application, and later he made a formal ruling to that effect. He did not appear to consider whether he had a discretion to entertain the application. 24. On 30 July, his Honour made some further rulings, and said, inter alia: "The application relating to abuse of process is well out of time and I have declined to entertain it. I add, for the sake of completeness, that it seems to me that such an application, if properly brought, would have been unlikely to succeed. I decline to grant a stay of proceedings. There is no warrant for that." 25. In addition, his Honour refused Mr. Michael Waye's application for an adjournment, and said the trial must start on 4 August. 26. He did not give reasons for his rulings, nor was he asked to do so. 27. On 4 August, Mr. Peter Waye appeared for the first time as counsel for the appellant, and was given permission to read on to the transcript a summary of what he submitted were the reasons for granting a permanent stay. Before he did so, Mr. Peek opposed Mr. Waye's proposal, and the following exchange then occurred:>
"HIS HONOUR: The point is this, Mr. Peek, for what it is worth;
I have ruled, it is a dead element and quite unnecessary for Mr
Waye to say anything more about it. But if he feels, out of an
abundance of caution, he wants to read onto the transcript what
I have already considered then so be it, as long as it doesn't
amount to asking me the reasons for what I have considered in
the order. If it is a matter of record only -
MR WAYE: It is only a matter of record.
HIS HONOUR: All right, do it.
MR WAYE: The argument is that the whole transaction was so
tainted with illegality that it was contrary to public policy
for the prosecution to proceed on the following factual basis;
the heroin was purchased at Haddyai in Thailand, conveyed to
Malaysia and then to Singapore and then to Australia, in breach
of four jurisdictions' laws in regard to prohibited drugs. It
was bought from an informant illegally through Superintendent
Chong. The price is unknown. There is suggestion that Mr
Butler would first have liked the initial importation into
Australia to Ridgeway to be sold in the streets and an arrest
made on the second importation.
MR PEEK: I am sorry to interrupt my friend. He is now putting
facts that are in no way conceded by the DPP.
MR WAYE: It is on the papers.
MR PEEK: We say that the course of the proceedings before your
Honour was such that Mr Ridgeway was asked more than once,
through his counsel, whether he proposed to adduce evidence and
what evidence he proposed to adduce, and it was in response to
the course of the proceedings that was adopted that the DPP took
a stance as to what evidence they would call. That is what I am
concerned about.
MR WAYE: The argument was on the depositions and the statements.
It is obvious from the statements that the Australian Federal
Police were appalled at Mr Butler's suggestion and they said so.
The next fact of the matter is that the Australian Federal
Police paid for the three air fares and expenses of Mr and Mrs
Chong and Lee and arranged a controlled importation, and
arranged for it to be carried through customs. That is the
heroin. Mr. Sweeny gave evidence that he told Chong in effect
to transfer the heroin to Ridgeway regardless of the money.
Sweeny wanted the heroin brought in a camera case, not
internally. There is no evidence of Lee's disappearance.
There is no evidence that of Ridgeway has ever been to Malaysia,
and that is from the passport people and even from the
depositions. In my submission the whole transaction was so
tainted with illegality and with the co-operation of the
authorities, particularly Australian Federal Police, that there
should be a permanent stay of these proceedings. That is all I
wish to put.
HIS HONOUR: I understand the thrust of that argument. I
appreciate that you weren't here when it was put. It doesn't
change things but you have put that on the record.
MR PEEK: Can I simply say that the fact that I don't reply to
those matters that my friend has put should in no way be taken
as any sort of acquiescence in relation to any of those matters,
but simply consistent with the stance that I have put to your
Honour this morning that those matters have already been
litigated. If I were to reply I would be taking great exception
to a number of propositions my friend put.
HIS HONOUR: When some of them were touched on you did.
MR PEEK: I did. There would have been plenty more that I would
have had to say if I were to reply.
HIS HONOUR: Yes, I understand." 28. The "District Court Rules 1992" commenced on 6 July, 1992. Rule 5(d) of the Rules of General Application states:
"Except where otherwise specifically provided, these Rules shall
apply to and govern:
(d) The proceedings in respect of all prosecutions pending in
District Council Courts on the commencement date except in so
far as the court may order that the former District Criminal
Court Rues, on some particular provision thereof, shall apply to
and govern any such proceedings;" 29. Of the rules specifically applying in the Criminal Jurisdiction, the following seem to be relevant, (the underling is mine):
"5.01 These Rules are made for the purpose of establishing
orderly procedures for the conduct of the business of the Court in
its criminal jurisdiction and of promoting the just and efficient
determination of such business. They are not intended to defeat a
proper prosecution or to frustrate a proper defence of a person
who is genuinely endeavouring to comply with the procedures of the
Court and they are to be interpreted and applied with the above
purpose in view.
7.15 Nothing in these Rules, or any order made pursuant thereto,
shall preclude a trial Judge from making any order or giving any
direction at the trial that, in the opinion of a trial Judge, ought
to be made in the interest of justice, and in order to ensure that
there is a fair trial according to law.
8.01 Any application to quash any proceedings before the Court
in its criminal jurisdiction or to stay any such proceedings
(including an application made on the ground of an abuse of process)
shall be made by issuing and serving an application in Form No. l
in the schedule to this Part.
8.02 Such application shall unless a Judge otherwise directs:
(a) be filed in the Court and made returnable before the person
committed for trial has pleaded to the charges which are to be
the subject of the applications;
(b) be supported by any affidavit upon which the person
committed for trial relies in support of the application, which
affidavit shall be filed with the notice of the application;
(c) be served with copies of any supporting affidavit upon all
other interested parties as soon as possible after it has been
filed;
(d) be returnable before a Judge in open court whether he is to
be the Judge upon the trial of the accused or not.
17.01 The Court shall have power at any time to dispense with
compliance with all or any part of these Rules ..." 30. The District Criminal Court Rules 1986 were in force at the time the information was filed, and I set out the relevant rules thereunder dealing with applications to stay proceedings for abuse of process (the underlining is mine):
"25. Any application to quash any proceedings before the Court
in its criminal jurisdiction or to stay any such proceedings as
an abuse of process or on similar grounds shall be made by
issuing and serving an application in Form No. l in the
Schedule to these rules.
26. Such an application shall unless the Court otherwise
directs:-
(l) Be filed in the Court and made returnable before the accused
has pleaded to the charges which are the subject of the
application.
(2) Be supported by any affidavit which the accused relies upon
in support of the Motion, which affidavit shall be filed with
the notice of application.
(3) Be served with copies of any supporting affidavit upon all
other interested parties as soon as possible after it is filed.
(4) Be returnable before a judge in open court whether he is to
be the judge upon the trial of the accused or not." 31. It is perhaps also relevant to refer to the Rules of the Supreme Court (Criminal Jurisdiction) 1981, (which were repealed by the Supreme Court Criminal Rules 1992), because the information was originally filed in the Supreme Court. Rules 24 and 25 thereof were the relevant rules, and they were virtually identical to Rules 25 and 26 of the District Criminal Court Rules 1986, except that the relevant application had to be made by Notice of Motion. 32. I have spent some time in these reasons reviewing much of what happened in the way of pre-trial procedures, arguments and rulings because I had reached the conclusion during the actual argument - a conclusion strengthened by subsequent reading and consideration - that this Court should rule on whether the case should have been permanently stayed - or the prosecution evidence excluded - on the ground that the evidence was obtained in consequence of the illegal or unfair actions of the Australian Federal Police and others. In so concluding, I do not imply any substantial criticism of the learned trial judge. The argument before him was put in a very diffuse way by counsel who had little time to master the number and complexity of the issues involved. I think, however, that his Honour should have considered whether he should have exercised the discretion which he undoubtedly had to extend the time for making the application for the permanent stay, and should have ruled on the application after proper argument. I acknowledge that his Honour was not actually asked to extend the time, but in fairness to defence counsel the situation was complicated. I incline to the view that the requirement in all the rules, past and present, that the relevant application be filed before a plea is taken refers to the first arraignment, and not to the plea usually taken again after the jury is empanelled, but at all hearings before Burnett J, the District Court Rules 1992 had come into force, and the appellant, with Harvey, had pleaded to the original information on 22 July, 1991. Moreover, when the appellant pleaded before Burnett J and the jury on 4 August, 1992, the charges were not the same in the sense that all references to Harvey had been deleted. I have also been influenced by the fact that the learned trial Judge does not seem to have really confronted the submission that the prosecution evidence should be excluded on the ground of illegality. As I said during the argument, his Honour's ruling against the submission really has to be "squeezed out" of the transcript. Finally, I think much can actually be said for the arguments for the appellant. Even counsel for the Director of Public Prosecutions, Mr. Chapman, conceded that if this Court thought there was anything in the arguments, it should consider them and not be thwarted by any procedural problem. 33. Before discussing the substantive argument on illegality, it is necessary to refer to the relevant provisions of the Customs Act 1901 and the relevant regulations. 34. Section 50 of the Act provides that the Governor General may by regulation prohibit the importation of goods into Australia. Section 51 provides that goods, the importation of which is prohibited under s.50, are prohibited imports. 35. Section 233B(l)(C) makes it an offence to have in your possession without reasonable excuse any prohibited imports to which that section applies. Section 233B(2) states that the prohibited imports to which the section applies are prohibited imports that are narcotic goods. 36. Section 4 contains the following relevant definitions:
"'Prohibited goods' means:
(a) goods whose importation or exportation is prohibited by this
Act or any other law of the Commonwealth; or
(b) goods whose importation or exportation is subject to
restrictions or conditions under this Act or any other law of
the Commonwealth; or
(c) goods subject to the control of the Customs;
'Narcotic goods' means goods that consist of a narcotic
substance.
'Narcotic substance' means a substance or thing that is named or
described in column l of Schedule VI or any other substance or
thing for the time being declared by the regulations to be a
narcotic substance." 37. Heroin is named in column l of Schedule VI Next, it is necessary to look at the Customs (Prohibited Imports) Regulations, Regulation 5(l)(a) of which states:
"5.(l) ... the importation into Australia of a drug is
prohibited unless:
(a) the person importing the drug is the holder of:
(i) a licence to import drugs granted by the Secretary of the
Department of Health, Housing and Community Services or an
authorised person under this regulation; and
(ii) a permission to import the drug granted by the Secretary of
the Department of Health, Housing and Community Services or an
authorised person under this regulation;" 38. No attempt was made by the Australian Federal Police or anyone else associated with the importation to obtain the necessary licence or permission referred to in the Regulation, and it is not disputed that Superintendent Butler, other officers of the Australian Federal Police, and Customs Officers at Adelaide Airport acted illegally. 39. Mr. Abbott QC sought to rely in particular on a passage in the joint judgment of the New South Wales Court of Criminal Appeal in R. v Chow (1987) l NSWLR 561. An application for special leave to appeal to the High Court from that decision was subsequently abandoned. It was a case, like the instant case, of what is described in the cases as a "controlled importation" of heroin, this time from Thailand. At p.566, their Honours (Slattery CJ at CL, Lee and Brownie JJ) said:
"... the mere fact that the Federal police might bona fide
believe that it is in their interest in the suppression of the
drug trade that arrangements be made for a narcotic such as heroin
to be imported into Australia, so that persons here might be
arrested and dealt with by the criminal law for offences committed
under the Customs Act (Cth), will afford no defence at all to a
prosecution for breach of the provisions of the Customs Act (Cth)
in relation to importation of heroin. The police involved and the
person who actually brought the goods in would all have
transgressed against the provisions of the Customs Act (Cth) and
would be liable therefor." 40. I now proceed now to refer to some of the other relevant cases that have helped me reach my conclusions. In R. v Mandica (1980) 24 SASR 394 at p.404, King CJ said:
"It would be totally wrong, of course, for police officers to
incite or encourage susceptible persons to crime in order to
arrest and prosecute them for offences which they might not have
otherwise committed. Indeed, in such a case the police officer
would himself be guilty of a crime. The situation is entirely
different where police have reliable information that a person
is engaged in criminal activity. In such circumstances a police
trap is a legitimate device for obtaining the evidence necessary
for a prosecution. Sometimes it is the only way in which those
carrying on criminal businesses and activities can be brought to
justice." 41. In Hunt v Wark (1986) 40 SASR 489, King CJ said at pp.492-493:
"Bunning v Cross (1978) 141 CLR 54 is authority for the
proposition that a judge at a criminal trial has a discretion to
exclude admissible evidence on the ground that it has been
illegally or improperly obtained. There is no reason why this
principle should not operate where the impropriety, or the
illegality, arises out of the use of an agent provocateur or
methods of entrapment. That is not to say that the use of an
agent provocateur or entrapment is of itself improper. Those
methods may be, and usually are, perfectly proper and acceptable
means of obtaining evidence of criminal conduct. But one
cannot exclude the possibility of impropriety being associated
with police investigation by those means any more than police
investigation by other means. Reference was made by Bray CJ in
The Queen v Veneman and Leigh (1970) SASR 506 at p.508 to the
distinction 'between a case where a Crown witness merely affords
the opportunity to the accused to commit or attempt to commit
the crime if he is so minded, and a case where the Crown witness
beguiles or seduces an unwilling accused to commit or attempt to
commit the crime'. The issues on the present appeal do not call
for a consideration of what might amount to impropriety in the
obtaining of evidence by means of agents provocateur and
entrapment. It is sufficient that the possibility of
impropriety in the way in which such procedures are used,
exists." 42. In R. v Dugan (1984) 2 NSWLR 554, where the Court of Criminal Appeal was considering the duty of the court where evidence prepared by the Crown is the product of unfair or unlawful conduct on the part of the authorities, Street CJ said at p.558:
"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." 43. In R. v Vuckov (1986) 40 SASR 498, Cox J reviewed many of the authorities on entrapment and concluded that there was no such defence recognised by law in South Australia. He reaffirmed that there is a discretion in a trial judge to exclude evidence on the principles enunciated in R. v Ireland (1970) 126 CLR 321 and Bunning v Cross (1978) 141 CLR 54 on the ground that evidence had been obtained improperly by means of entrapment. His Honour regarded that question as being finally closed by the decision of the Full Court in Hunt v Wark (supra). His Honour also concluded that there was power in the court to stay proceedings on the ground of entrapment in an appropriate case. At p.522, he said:
"Plainly instances in which a criminal trial will be stopped in
this way will be rare. However, there seems to me to be no good
reason in principle for denying the power's application to an
entrapment case in which, according to Hunt v Wark (1985) 40
SASR 489, the trial Judge may properly exclude the prosecution
evidence on discretionary grounds and so effectively bring the
case to an end. ... I am of the opinion that the Court has
power to order a stay, on public policy grounds of the kind
formulated in Bunning v Cross (1978) 141 CLR 54, where the
evidence shows that it would be unfair to the defendant or an
affront to the public conscience to permit the prosecution to
proceed. How is the discretion to be exercised? 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." 44. At pp.523-524, his Honour said:
"... in a case where the police or their informer have acted
improperly in attempting to trap a defendant, it will be a
matter in the end of applying the test laid down in Bunning v
Cross (1978) 141 CLR 54 - of looking at all the circumstances of
the case, with the competing requirements of public policy in
mind,and deciding whether the defendant has made out his claim
that the prosecution should be stopped because it would be an
abuse of the process of the court to allow it to proceed. Cf.
Hunt v Wark (1985) 40 SASR 489. The principles to be applied by
a South Australian court will be the same, whether it be a
question of excluding evidence or - as I respectfully prefer to
see it - of staying proceedings." 45. The case went on appeal (see R. v Romeo (1987) 45 SASR 212), but their Honours did not disagree with the conclusions of Cox J set out in the passages I have just quoted, and they have been followed in other states, see, for example, R. v Papoulias (1988) VR 858, R. v Sloane (1990) 49 A Crim R 270, R. v Hsing (1991) 25 NSWLR 685, and R. v Venn-Brown (1991) l QdR 458. 46. In R. v Sloane (1990) 49 A Crim R 270, Gleeson CJ said:
"Many of the cases concerning illegal drug dealing that come
before this Court, and before the criminal trial courts in this
State, are cases in which police agents or informers participate
in drug deals in circumstances where the purpose and effect of
their participation is to expose the criminal activity of
others. It seems that the same applies elsewhere; see, for
example, Loughlin (1982) l NZLR 236; Jewitt (1985) 21 CCC (93d)
7. One of the problems with the concept of entrapment is that
it can be very difficult to draw the line between legitimate
police activity aimed at exposing criminal behaviour and
activity which incites or encourages the commission of crimes
that would not otherwise have been committed." 47. Mr. Abbott sought to rely on the decision of the Queensland Court of Criminal Appeal in D'Arrigo 58 A Crim R 71, and I propose to consider it at some length. In that case, the appellant was convicted of unlawful possession of a motor vehicle with intent to deprive the owner of its use and possession. The case against him relied exclusively upon the testimony of a man called Riesenweber. Riesenweber, who was subject to 28 pending criminal charges, was granted an indemnity not to be prosecuted for future offences committed in the course of a specific police undercover operation. During the course of this operation, Riesenweber, with others, stole and illegally disposed of 68 motor vehicles. The charges against the appellant arose from one of those thefts. The Court quashed the conviction and held that the Crown prerogative to grant indemnities for past criminal acts to assist in gaining prosecution evidence did not extend to issuing licences to break the law in the future, and that the State's interest in maintaining the integrity of the criminal process outweighed the competing State interest in the conviction and punishment of offenders. The Court held that the trial judge should have exercised his discretion to exclude the evidence of Riesenweber on public policy grounds. 48. At pp.72-73, Macrossan CJ said, (my underlining):
"During the trial, an application had been made by defence
counsel for consideration of the issue whether the evidence of
the essential Crown witness Riesenweber should, in the exercise
of the trial judge's discretion, be excluded on policy grounds.
Evidence was led extremely widely in the trial. It revealed
that the sale of a motor vehicle to the appellant, resulting in
the charge brought against him, occurred as a single transaction
in the course of a widespread scheme of car theft, treatment to
disguise the identity of vehicles taken or the parts to which
they were reduced, and resale of the stolen items. The law
enforcement authorities, with the object of apprehending the
guiding hands and those most heavily involved in the scheme,
successfully managed to introduce their agents, most notably
Riesenweber and another undercover operative, Carmont, into the
network. Riesenweber's role was to take part with the thieves
in the selection of vehicles, their asportation to the secret
location where the work to disguise their identity was
undertaken and then their sale to various purchasers.
Astounding as it may seem, this participation by the law
enforcement authorities continued throughout a lengthy
undercover operation during which some 68 vehicles were stolen
from innocent, unaware citizens and put through a process of
illegal disposition. It so happened that in the case of the
sale of the stolen vehicle which was made to the appellant,
Riesenweber was the Crown witness exclusively involved to the
point where the Crown case was completely dependent on his
testimony. In the presentation of the case against the
appellant, it may well not have happened that these relatively
full details of the undercover participation in the operation
which was code-named Trident would emerge but these aspects were
introduced and explored by the defence. Because the evidence
which Riesenweber could give against the appellant was so
thoroughly bound up with the law enforcement authority's
participation in an illegal scheme and so completely arose out
of it, an application was made to the trial judge to exclude the
evidence of Riesenweber in the exercise of his discretion. I
consider that a relevant discretion undoubtedly existed
although, in any balancing exercise which had to be undertaken,
the common consideration of fairness to the accused was not an
ingredient. The competing considerations were, on the one hand,
the interests of the State in the conviction and punishment of
offenders and, on the other hand, the further interests of the
State in maintaining the integrity of the criminal processes and
upholding observance of the law by the State's
instrumentalities. If the courts were prepared to overlook an
unrestrained illegality of this kind without offering any
discouragement to it, at what point would it ever be appropriate
to demur and offer objection? Here the theft of some 68
vehicles of innocent citizens was not only permitted but was
actually assisted. The objective of the apprehension and
conviction of offenders can in the words of Barwick CJ be bought
at too high a price by society: see his observations in Ireland
(1970) 126 CLR 321 at 335. It cannot be accepted that the end
will necessarily justify the means. In the present case the
considerations which call for an expression of the Court's
disapproval of the extent of the illegality involved in the
collection of the evidence against the appellant and others are
so strong that there is an extremely formidable case for
exclusion raised. Due appreciation of the strength of these
factors does not appear in the judge's consideration of the
matter. The conclusion should be reached that the discretion
has miscarried and the appeal should be upheld on this ground." 49. At pp.76-77, de Jersey said (my underlining):
"It is ... repugnant to the rule of law to conceive of an
Attorney's granting, in advance, an indemnity in respect of as
yet unknown criminal conduct which may occur in the future. As
pointed out by Dowsett J, indicating an intention not to
prosecute for past breaches of the law may be justified in
certain special circumstances, but using an indemnity to
encourage future breaches of the law is quite a different
matter. We were offered no authority supporting the legality of
this indemnity. The granting of the indemnity probably amounted
to counselling within s 7(d) of the Code (although not with
respect to a specific offence), and however well-motivated,
therefore simply could not be justified by reference to
prerogative power. If otherwise ample enough to extend to the
granting of an indemnity in respect of possible future criminal
acts, which I would not accept in any event, the prerogative
power must be taken to have been cut down statutorily by the
implicit prohibition on aiding, counselling and procuring in s 7
of the Code. The pernicious potential of such an indemnity
emerges from its very terms: what is to be regarded as an act
'reasonably and necessarily done' to assist the police
investigations, to which the indemnity will extend? Who is to
pass upon what falls within that broad description? The evidence
of Riesenweber, critical to the Crown case against the
appellant, was gathered while he operated under the umbrella of
that indemnity. But for the indemnity he would not have
participated. In my view, his own conduct was unlawful, as was
the mechanism by which the State authority involved him. This
illegality was of such serious proportions that the Court should
not countenance reliance by a jury on evidence obtained by means
of it. We are here faced with competition 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' (Bunning v Cross (1978) 141 CLR 54 at 74). The
balance comes down strongly on the side of rejecting the
evidence. The learned judge should, in the exercise of his
discretion have rejected the evidence." 50. At pp.78-79, Dowsett J said (my underlining):
"Although the appellant's grounds of appeal were numerous, the
aspect which most concerns me is the legality of the Attorney's
conduct in purporting to indemnify in respect of criminal acts
yet to be committed (as opposed to indemnifying against
prosecution in respect of previous criminal misconduct) and the
consequences should the purported indemnity be unlawful. No
authority was cited to support the proposition that the Attorney
may indemnify in respect of future misconduct. Indeed, one
would be surprised if such authority existed. It is impossible,
consistent with the rule of law, to conceive of the executive
excusing anticipated criminal misconduct. Such a course is
quite different from indicating an intention not to prosecute
for prior misconduct. The latter course does not encourage
breaches of the law. To indemnify in respect of future
misconduct will almost inevitably be to counsel or procure the
commission of offences, probably rendering the Attorney liable
to prosecution as a party pursuant to s 7 of the Criminal Code.
Counsel for the Crown did not submit to the contrary. If such
conduct is outlawed by the Code, it cannot be within the
prerogative power. The only substantial argument mounted by the
Crown in opposition to this view was that the position is not
much different from that which obtains in numerous
investigations where undercover police officers enter into
drug-related transactions with suspects. This is, indeed, a
very widespread practice in the police force at the moment, but
as far as I am aware, the ramifications thereof have never been
closely examined by this Court. The argument assumes that the
practice is unexceptionable, an assumption which should not pass
without challenge. Such an operation usually involves a
relatively young police officer 'going undercover' for an
extended period of time, often at one of the coastal resorts
such as the Gold Coast or Cairns. In the course of the
operation, he establishes contacts with numerous people in the
hope that they will respond to requests from him to supply
prohibited substances, no doubt with the expectation that such
suppliers will lead the police to persons higher in the
distribution hierarchy. Judicial experience of the results of
these operations suggests mixed outcomes. For my part, I have
seen a few substantial drug dealers apprehended, but I have also
seen people convicted in circumstances which indicate that they
would not have offended had they not been induced to do so by
police agents. Such activities consume substantial police
resources and require high levels of courage and determination
from the officers involved. Almost always, the officer himself
commits drug-related offences. These operations can be
justified only upon the basis that offences of this kind are
otherwise difficult to detect. It is, of course not for the
Court to advise on matters of police operations. However, where
evidence has been obtained by unlawful conduct, it may appear
that its receipt in court gives judicial approval to such
conduct: see Bunning v Cross (1978) 141 CLR 54 at 74. It is for
this reason that there is a discretion to exclude such evidence
upon a consideration of the competing public interests in
bringing to conviction those who commit offences and in not
extending curial approval to official misconduct: see also
Ireland (1970) 126 CLR 321 at 335, per Barwick CJ This is not a
comparison of public interest and private interest, but rather
of competing public interests. There may be a theoretical
distinction between evidence obtained by illegal means and
evidence obtained in the course of illegal conduct. The policy
considerations underlying the iscretion to exclude (as explained
in Bunning v Cross) indicate that such discretion should be
available in either case. No doubt a critical factor in the
exercise of the discretion will often be the closeness of the
connection between the illegality and the obtaining of the
evidence. It is not necessary for present purposes that I
comment at length upon the legality or desirability of the use
of police officers in undercover roles where this involves them
in the commission of offences, no doubt in the expectation that
proceedings will not be taken against them. However, in some
cases, the extent of police involvement in illegal activities
will so taint the evidence obtained as to lead to its
discretionary exclusion in subsequent proceedings. Exercise of
the discretion will often depend upon the extent of the
illegality and the relationship between the illegality and the
evidence obtained. A distinction may possibly be drawn between
offences committed by police officers and those committed by
other informants and agents, simply because the former are more
easily controlled. On the other hand, the involvement of police
officers in such misconduct poses its own ethical and legal
problems. For example, a police officer committing an offence
breaches the prescribed oath of office pursuant to both the
repealed Police Act 1937 (Qld) and the current Police Service
Administration Act 1990 (Qld) and regulations thereunder. In
assessing the value of proposed operations of this kind, the
police and the Attorney should certainly keep in mind that
illegality in obtaining evidence may result in its exclusion in
subsequent proceedings. To seek to justify the present case by
reference to such operations does not, in my view, achieve that
purpose. Rather, it highlights the problems inherent in them.
It is clearly unacceptable in the administration of the law for
the Attorney-General to indemnify a suspected offender against
unspecified future criminal conduct simply in the hope that this
will lead to the identification of receivers of stolen vehicles.
This is particularly so when, as a result of such indemnity,
the agent engages in conduct resulting in numerous innocent
persons being deprived of their property. This operation was
high-handed and misconceived. Whether there was demonstrated
illegality sufficient to enliven the jurisdiction to exclude
evidence obtained as a result thereof is another matter. I am,
however, satisfied that there was. Clearly, the indemnity was
offered in circumstances in which it was contemplated that
Riesenweber would be a party to offences of car stealing and/or
other offences of a similar nature. Sections 7 and 9 of the
Code operate to make the Attorney and any police officers
supervising Riesenweber parties to his offences. It may not be
possible to identify specific offences as proven beyond
reasonable doubt, but on the balance of probabilities, I am
satisfied that offences were committed by him and that such
offences were counselled or procured by those persons in
authority. I am also satisfied that this illegality led
directly to the obtaining of the evidence given by Riesenweber
against the appellant. That evidence was obtained by a process
so tainted by illegality as to dictate its exclusion." 51. The Court of Appeal of the Supreme Court of Queensland constituted by Davies, Pincus and McPherson JJ had to consider a conviction arising from the Operation Trident in the case of The Queen v Stead Unrep.Jt. delivered on 12 June, 1992. The appellant was convicted, inter alia, of twenty-six counts of unlawful possession of a motor vehicle. At pp.4 and 5 in a joint judgment, their Honours described Operation Trident as one:
"... in which police and police agents had participated
extensively by assisting, directly or indirectly, in the
unlawful activities of stealing, stripping down, and disposing
of vehicles. The vehicles in question were the property of
ordinary citizens, who had left them in parking places at
shopping centres and the like, from which they were stolen.
There was evidence that a total of some 68 vehicles were taken
in this way in the course of the Trident operation. The cost to
the owners and insurers in terms of financial loss, time wasted
and inconvenience suffered, to say nothing of the distress at
having their cars stolen, must have been vast. Some at least is
traceable to the action of the former Attorney-General in
providing the formal indemnity to Reisenweber, and to police
encouragement and participation in the car stealing activities
that followed." 52. The Court was invited not to follow D'Arrigo (supra), or alternatively to treat it as distinguishable. At pp.16 - 18, their Honours referred to the factors they considered were relevant to the exercise of the discretion to exclude Riesenweber's evidence. They said:
"The first of these is that in no sense could it have been said
that the conduct of the Attorney-General, the police, or
Reisenweber was in deliberate or reckless disregard of the law.
The Attorney granted the indemnity upon advice and there is no
suggestion that any of those who acted under it had any doubt as
to its legality. Its illegality having been established, it
could not be suggested as even a remote possibility that, with
knowledge of that illegality, a future Attorney may purport to
grant a similar indemnity. Exclusion of the evidence will
therefore have no useful deterrent function. Secondly,
Reisenweber's evidence here was undoubtedly cogent. Without it,
a guilty man will probably go free of the majority of the
offences for which he was tried and convicted. Whether it would
have been possible to obtain evidence against the appellant in
respect of those or similar offences without Reisenweber's
involvement is a matter of speculation; but, given the
professionalism of the appellant, there can be no doubt that,
without having someone like Reisenweber involved with and
trusted by the appellant, the task of the police in detecting
and then proving commission of the offences by the appellant
would undoubtedly have been very much more difficult. The
prevalence of such offences and the obvious difficulty of
detecting professional organised crime supports this conclusion.
Thirdly, the seriousness of the offences having regard both to
their prevalence and their effect upon the community is itself a
factor. Illegality should be more readily excused in the
detection of serious crime. Fourthly, this is not a case of
entrapment in the sense of the appellant having been induced to
commit a crime. He was engaged in the criminal activity of
stealing cars in a business-like way before Reisenweber became
involved. The first five counts attest to this. There is no
consideration of fairness to the appellant that dictates
exclusion of the evidence under challenge. It is difficult to
see any public benefit in excluding the evidence in the present
case. None of those whose cars were stolen by the appellant
will feel any satisfaction in seeing him go free. Nor, we
imagine, would any other car owners or indeed any right-minded
citizens. On the other hand, civil remedies for authorising the
tortious conversion of so much valuable property are available
to those who choose to use them. In our opinion, therefore, his
Honour rightly admitted Reisenweber's evidence." 53. At p.22, their Honours said: "Without expressing a concluded view on the correctness of the decision in D'Arrigo, we are of opinion that the evidence of Reisenweber was rightly admitted at the trial in this case." 54. Of the American authorities to which I have referred, I have found a consideration in United States of America v Twigg and Neville (1978) 588 F.2d 373 most helpful. The defendants were convicted of charges stemming from the illegal manufacture of speed. The Circuit Court of Appeals held that the nature and extent of police involvement in crime in that case was so far overreaching as to bar prosecution of them. The following factual background of reasoning appears in the majority judgment at pp.380-381:
"At the behest of the Drug Enforcement Agency, Kubica, a
convicted felon striving to reduce the severity of his sentence,
communicated with Neville and suggested the establishment of a
speed laboratory. The Government gratuitously supplied about 20
percent of the glassware and the indispensable ingredient,
phenyl-2-propanone. It is unclear whether the parties had the
means or the money to obtain the chemical on their own. The
DEA made arrangements with chemical supply houses to facilitate
the purchase of the rest of the materials. Kubica, operating
under the business name 'Chem Kleen' supplied by the DEA,
actually purchased all of the supplies with the exception of a
separatory funnel. (The funnel was secured by Twigg at the
direction of Kubica who was engaged in operating the
laboratory.) When problems were encountered in locating an
adequate production site, the Government found the solution by
providing an isolated farmhouse well-suited for the location of
an illegally operated laboratory. Again, there was no cost to
the defendants. At all times during the production process,
Kubica was completely in charge and furnished all of the
laboratory expertise. Neither defendant had the know-how with
which to actually manufacture methamphetamine. The assistance
they provided was minimal and then at the specific direction of
Kubica. These instances of police involvement must be evaluated
against the following backdrop. The only evidence that Neville
was predisposed to commit the crime was his receptivity to
Kubica's proposal to engage in the venture and the testimony of
Kubica that he had worked with Neville in a similar laboratory
four years earlier. Unlike other cases rejecting this defense,
the police investigation here was not concerned with an existing
laboratory ... the illicit plan did not originate with the
criminal defendants ... and neither of the defendants were
chemists - an indispensable requisite to this criminal
enterprise ...
When Kubica, at the instance of the DEA, reestablished contact
with Neville, the latter was not engaged in any illicit drug
activity. Using Kubica, and actively participating with him,
the DEA agents deceptively implanted the criminal design in
Neville's mind. They set him up, encouraged him, provided the
essential supplies and technical expertise, and when he and
Kubica encountered difficulties in consummating the crime, they
assisted in finding solutions. This egregious conduct on the
part of government agents generated new crimes by (Neville)
merely for the sake of pressing criminal charges against him
when, as far as the record reveals, he was lawfully and
peacefully minding his own affairs. Fundamental fairness does
not permit us to countenance such actions by law enforcement
officials and prosecution for a crime so fomented by them will
be barred." 55. Twigg's conviction was also set aside, but it is unnecessary to consider the somewhat different circumstances relating to him. 56. Mr. Chapmen did not dispute the illegal actions of the police and other authorities, or that there was an element of entrapment in what they did, but he insisted that the disposition of the appellant (who was on parole for serious drug offences), the seriousness of the crime he contemplated and his apparent determination to commit it, tilted the balance here in favour of admissability and against a stay. 57. It is not an agreed fact that the appellant instigated the importation of the heroin, but I agree with Mr. Chapman that the inference from the agreed facts that he did so is inescapable. That inference was also drawn by the trial Judge who in his sentencing remarks said, and I think fairly and accurately:
"What is clear is that, while you were on parole, you set about
organising, through Lee, or with his help, the importation into
this country of a large amount of heroin. Late in 1989, you
visited Singapore (twice)and obviously you met Lee there. Your
trips were timed to fit between appointments with your parole
officer. Although you had a (passport), you used your brother's
name (and passport). The agreed facts, the telegrams and the
lettergrams which passed between you and Lee, the evidence of
surveillance by the Australian Federal Police of your movements
when Lee eventually came to Adelaide with the subject heroin,
all point, in the clearest way, to the fact that you set out to
arrange and succeeded in having Lee bring a large amount of
heroin from Malaysia into the country unlawfully. You did not
import the heroin yourself but there can be no reasonable doubt
that you wanted it brought in. You knew it had been brought in
and you did so for your own purpose - namely, financial gain." 58. I do not think in all the circumstances of this case that the police over-reached their responsibility as manifestly the Drug Enforcement Agency did in Twigg and Neville (supra). Nor do I think their actions were high- handed or misconceived as the police actions were in D'Arrigo (supra). They did not seduce an unwilling accused to commit the crime, albeit there obviously was some haggling over the price of the heroin. Nor do I think in all the circumstances that Mr Abbott's plea of unfairness succeeds. Without wishing to be understood as condoning the police actions, I do not think they amounted to "some atrocious attempt at inducing the appellant to travel beyond the boundaries of his criminal disposition" to use the language of Samuels JA in R. v Hsing (supra) at p 697. 59. I would dismiss the appeal.
JUDGE3 DUGGAN J I agree with Matheson J that this court should consider the merits of the application made to the trial judge for a permanent stay of proceedings and the further and alternative question as to whether the prosecution evidence should have been excluded in the exercise of the trial judge's discretion. 2. I also agree with Matheson J's. view that the appellant must fail on both of these issues. The extent of the police involvement in the importation is a crucial consideration in assessing the merits of the applications, but it is clear from the facts that the appellant needed no persuasion to become involved in this illegal activity and that the police and the informer did not initiate and pursue the matter in the manner of an agent provocateur. 3. Nevertheless I am also of the view that the result in this case should not be taken as any encouragement to police officers to embark upon similar conduct in the future. We were referred to R v Chow (1987) 11 NSWLR 561, a case in which the Thai and Australian Police assisted in the importation of heroin so as to catch others concerned in its importation. The main issue appears to have been whether, in the light of the police involvement, the drug retained its characteristic of being a "prohibited import". The aspect of fairness was dealt with in passing in the joint judgment of the court (p.568):
"For the sake of completeness we record here that counsel for
the appellant in the course of his submission contended that the
evidence disclosed such a close association between the Federal
police, the Thai police and Komthacrue, that the case was one in
which the Court should exercise its power to quash a verdict
where the accused has been the victim of entrapment by the
police: R v Dugan (1984) 2 NSWLR 554; R v Vuckov (1986) 40 SASR
498; 22 A Crim R 10; R v Birtles (1969) 1 WLR 1047; (1969) 2 All
ER 113(n); (1969) 53 Cr App R 409. In our opinion, there is no
evidence to suggest that the appellant or Rirasatik or the other
co-accused, Lee, were in any sense induced to commit the crimes
with which they were charged, by anything done by the police or
Komthacrue ...". 4. Insofar as it goes this comment coincides with my own view in the present case. But this is not to condone the police action. As the court pointed out in Chow's case the police officers themselves appear to have committed an offence against the Act. It should be borne in mind that the prosecution for this offence takes place under the provisions of the Customs Act, 1901. The gravamen of the offence is the element of importation. The drug in this case was purchased by a police officer and a police agent. It was then imported with the active assistance of the police and customs agents, all of them, it would appear, committing offences in the process. In my view the court can hardly condone such conduct. But this appeal falls to be decided in accordance with the recognised principles relating to abuse of process and the discretion to exclude evidence and I agree that when these tests are applied the arguments advanced by the appellant must be rejected and the appeal dismissed.
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