Ridgeway v The Queen

[1994] HCATrans 246

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A17 of 1993

B e t w e e n -

JOHN ANTHONY RIDGEWAY

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

DEANE J
DAWSON J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

Ridgeway 1 11/3/94

ON FRIDAY, 11 MARCH 1994, AT 11.57 AM

Copyright in the High Court of Australia

MR M.L. ABBOTT, QC: If the Court pleases, I appear with my

learned friend, MR C.J. CALDICOTT, for the applicant. (instructed by Caldicott & Co)

MR D.J. CHAPMAN: If the Court pleases, I appear for the

respondent. (inst~1cted by M. Rozenes, Director of

Public Prosecutions (Commonwealth))

DEANE J: Yes, Mr Abbott.

MR ABBOTT:	In this matter, if the Court pleases, it is our submission that the South Australian Supreme Court
of Criminal Appeal should have first and primarily
focused on the illegality on the part of the police
and the law enforcement authorities, and then, and
only then, after proper assessment of the nature
and extent of that illegality, should they have
turned to the predisposition of the applicant.

In essence, what we submit happened is that

they focused on the subjective aspects peculiar to

the applicant. Whilst not ignoring the fact of the

police illegality, they failed to focus upon the

illegality and hold it up to the proper and

appropriate scrutiny.

GAUDRON J: What is that scrutiny?

MR ABBOTT:  We would submit that the proper scrutiny is the

scrutiny that was given to the illegality by

Justice Legoe, who was the President of the Court

of Appeal. If I could take the Court to

Justice Legoe's judgment, firstly at page 26.

His Honour said at line 1 on page 26 of the

application book:

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.

So not only did they commit a crime in importing

authorizing Mr Butler, who was the Australian	the heroin, they also committed a crime in for the purchase of the heroin by Detective Chong
and the police informant, Lee.

Justice Legoe's list of offences which had

been committed by the Australian Federal Police is

set out in part on page 27 of the application book.

He said at line 20:

Flights to Adelaide were arranged by the

Australian authorities for Lee and Chong. The

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heroin was actually smuggled into Australia in

a camera bag in the possession of Chong. rt

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.

He referred to this catalogue of crimes, and I will

not read out page 28 and following, but at

page 31 - - -

DEANE J:  Mr Abbott, was it established or was it common

ground that the police activities in Malaysia were

illegal?

MR ABBOTT:  It was common ground, Your Honour. What

happened was that at the behest of Butler, Chong,

the Malaysian drug squad detective - - -

DEANE J:	I am aware of the facts.
MR ABBOTT:	- - - travelled to the Malaysia/Thai border and

got Lee to purchase the heroin with him either in

breach of Thai or Malaysian law, or both, with

money if not supplied by the Australian Federal

Police, then money which was to be reimbursed to

Chong by Mr Butler. At page 31 of the application

book at line 45 Justice Legoe said this: 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.

DEANE J:  Mr Abbott, I think you can proceed on the basis

that we are all conscious of the facts. Now, what

you have to do is show us where the majority went
wrong in point of principle.

MR ABBOTT:  In point of principle, we say they went wrong

because of their approach to the illegality, and

that was that whilst they recognized that there had

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been some illegality, instead of focusing on it to

see whether or not it was of the type, nature and

extent that the courts should not countenance a

prosecution brought upon such illegality, they

focused instead upon the attributes of the

applicant, namely, whether or not he had a

predisposition to commit the offence.

Justice Matheson, who gave the judgment of the

majority, although Justice Duggan said something as
well - his approach may best be seen in the

application book page 58.

DAWSON J: Could I just understand what you are submitting.

Do you say the prosecution should have been stayed,

or do you say that the evidence which had been

illegally obtained ought not to have been admitted

on some basis such as Bunning v Cross? How do you

put it?

MR ABBOTT:	I say that is one of the two important special leave questions which is yet to be decided by the
High Court.  I submitted in the alternative. What
I say is the question has not yet been decided in
an entrapment case as to whether or not it is
appropriate to exclude on the Bunning v Cross
discretionary exclusion basis, or to stay on the
public policy Bunning v Cross ground. Whilst there
has been discussions in cases such as Pollard,
primarily by Your Honour Justice Deane, where
Your Honour spoke of public policy considerations
leading to exclusion of evidence, in the entrapment
situation, and primarily in the case of Hsing,
which I have referred to in the course of my
written argument, in the entrapment situation there
appears to be a divergence, namely, that in New South Wales the Supreme Court has now decided that
a discretionary exclusion is not appropriate where
there has been breach of public policy
considerations in an entrapment case.
South Wales, at least, the courts have adopted what They arrived at that result because in New
Judge of Appeals Samuels referred to as the
subjective approach and instead of focusing on what
he alternatively called the objective approach,
they take their starting point as focussing on the
attributes of the person so entrapped. As
Your Honours will see from my written submissions, they have relied upon what fell from the High Court
during the special leave application of a Ms Sloane
in Sloane's case. But I will turn to that shortly.

Our submission is that the objective approach,

if there be a divergence in approaches, the

objective approach should be preferred, but

whichever approach you take, whether it be

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assessment primarily and foremost on the activities

of the prosecuting authorities and the law

enforcement authorities, or an assessment of those

activities and the attributes of the person

allegedly entrapped, in this particular case there

was no proper focus on the nature and extent of the

illegality of the law enforcement authorities.

Could I return to the judgment of

Justice Matheson and his approach to the illegality

aspect. He said at page 57 of the application

book, line 3:

Before discussing the substantive

argument on illegality, it is necessary to

refer to the relevant provisions of the

Customs Act -

He then sets out the relevant provisions of the

Customs Act, and he says at page 58 line 20, and

this is all he says about the illegality, in

essence:

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.

In essence, what happened, without dwelling on

the facts, is that the AFP decided to make this an

AFP operation, not involving the State. So there

was no question of possibly arresting Mr Ridgeway

for the State offence of possessing heroin for

sale; rather this started off and always remained a

federal police matter, and therefore it had to

involve the illegal importation of heroin, if it

was to involve anything.

So Justice Matheson, from page 58 of the application book onwards then dealt with the

authorities - or at least what he regarded as the

relevant authorities - and I now turn to page 71

where his conclusions are set out and at line 30 -

DEANE J:  Mr Abbott, I think we might advantageously hear

what Mr Chapman has to say at this stage. It may

be that we will need to get you to resume your

comments.

MR ABBOTT: If the Court pleases.

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,;.

MR CHAPMAN:	If the Court pleases, my submission is that one day might arise where the High Court considers that
factually they have an appropriate case to
reconsider the various principles which might be
said to underlie the doctrine of en~rapment, but
this case is not one.  The special leave questions
which Mr Abbott has raised orally today, ever so
slightly vary from those in his summary of
argument, in my submission.

DEANE J: But this case does fall into a very unusual

category, does it not, in that here the police have

illegally imported heroin for the purpose of

procuring an offence whose basis is the illegal

importation of heroin? I am not saying what flows

from that, but it does raise a very important

problem, and it is a problem which should really be

approached the same way in all States, otherwise if

South Australia adopts one approach and New South

Wales, for example, adopts another approach, one is

really pointing to South Australia as the

appropriate venue for illegal importation by police

to procure an offence.

MR CHAPMAN:  In my submission, a number of things about

matters that Your Honour has raised. The

divergence in views between the State courts that

my friend has referred to, in my respectful

submission, is exaggerated. The main divergence,

if any, relates to the remedy that flows once

entrapment has been established, whatever that

entrapment might be.

DEANE J: In one sense, it is an entrapment case but,

really, it is not an entrapment case. It is a case

where the offence and, indeed, the legislative

power is directed to illegal importation and one

has the problem that the illegal importation was

illegal importation by the police.

MR CHAPMAN: With respect, I quite agree, it is not an

entrapment case, and related very much to the

actual facts which also relate to this question of
illegality.	Now, the facts which were found by the

Court of Criminal Appeal and, indeed, the learned

trial judge in his remarks were that the applicant
instigated the importation, that he travelled twice

to Singapore, that he had contact with the man Lee,

that he wrote letters and sent telegrams and

aerograms which urged that the offence of

importation be committed and committed only for his

benefit; so that once it was brought to this

country he could receive it and would receive it

and that he wanted to receive it.

His letter also contained, in my submission,

the clear inference ·that if he could not get Lee to

Ridgeway 6 11/3/94

bring heroin into Australia he would go elsewhere

and go to another person in another place. And in

that situation you would have the position that the

authorities, the police, whether they be in

Malaysia or this country, would not know who the

other person was going to be.

They had to make a decision, when Lee goes to his Malaysian police officer, about the proposal

that had been put to him: do we say "Yes", or do

we say "No"? If we say "No", how are we going to

stop this man causing heroin to be brought into

Australia? This answer is, "We may well not." It

may slip through like, unfortunately, so much

heroin does. Or if we say "Yes", we can control

the activity, in this sense, that there will be no

risk of that heroin coming to this country for

distribution. Our only purpose and reason for
importing it is to, in effect, stop the applicant

from bringing about another importation that we have not got any idea who or where or when that

will be.

So the illegality certainly was conceded, but

what we had was Chong, the Malaysian police

officer, saying that in terms of getting the heroin

in that country he had been given an indemnity by

his authorities.

DEANE J:  Mr Chapman, was there any way in which the

Australian Federal Police could have obtained

authority to bring in the heroin without a breach

of the law?

MR CHAPMAN:  There would be but the person at the other end

in this country would not be committing the offence

under the Customs Act of being in possession of

imported heroin.

DEANE J:  Do you think that answer helps you?

MR CHAPMAN:  I do not see that it harms me. Now, obviously

what I see does not matter so much, but the

position was that, for example, there was nothing

to stop a State charge being laid of possession of

heroin for sale, once the applicant was in

possession of it. Also I suppose one could, as indeed Justice Legoe did, looked at theoretical
possibilities of charging the applicant with

conspiracy before any heroin ever came to this

country, but which would rely very much upon Lee,

the informer, and in this case, as often happens
for various reasons including security and the fear

for one's safety, the man Lee did not come to give

evidence in Australia and Chong of course, as you
might be aware, died part way through the

committal.

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My submission is that the court below was

completely aware of the illegality that was

involved and the steps throughout it but they were

equally aware of some of the matters that I just

touched upon and in fact, of course, this wc1.s not

illegality being committed by federal police but

also the Malaysian police and the authorities in

Singapore took possession - - -

DAWSON J: But it was an illegality which was a necessary

ingredient of the offence.

MR CHAPMAN: That is so. It is not necessary to prove

importation but it would be necessary for this or

its similar offence which was also charged that it

be reasonably suspected of being imported.

DAWSON J: That is what makes this an unusual case, is it

not?

MR CHAPMAN:  It is not something that I am aware of has

happened at all in any other situations except

this, that in Chow's case and also Tate's case an

agent of the police in both of those cases was

involved in the importation of heroin into this

country and in each of those cases, as in this

case, the applicant was involved from the beginning

and wanted every step along the way to happen and

take place, and he urged it and indeed really

threatened that if it did not happen he would go

elsewhere and be away from the reaches of, in this

case, the federal police.

My point that I was seeking to come to is not

to say that it is not factually unusual. In many

ways it is. But that in terms of the approach

adopted by the majority, and I might say this, that

the dissenting judge, Justice Legoe, did not find
that the illegality was so great that the matter

should be stayed or the evidence excluded, but

rather sent it back to another trial when both

sides, before the Court of Criminal Appeal, had

really said, "Here are all the facts that we

consider relevant, we are content for and really

want you to make a decision on this".

When those facts were examined by the two

judges in the majority, they were applying what are

reasonably well settled principles and even if we
leave aside the question of entrapment because I
agree that this is not a case of entrapment because

the matter was instigated by the applicant, and he

not only took no persuading to become involved but
he was the man from start to finish who wanted it all to happen. But, in applying what I would say

are the Bunning v Cross-type principles, which the

majority were well aware of, and they were well

Ridgeway 11/3/94

aware of the illegality, it was a strong feature of

the applicant's argument before them and they

~roceed to basically weigh up the competing

interest.

The matters that have been put to me about it

going to the very offence charged, in my

submission, is a factor but what would have been

the situation if the applicant had been charged

with the State offence of possession of heroin for

the purpose of sale or something like that. So

that, does that mean then that the situation is so

different, as a matter of principle, that the

illegality involved in the importation

automatically really leads to its exclusion? The

majority here, conscious of the test in

Bunning v Cross, conscious of the illegality, did

engage in a balancing exercise and amongst the

matters that they referred to was the seriousness of the offence, the disposition of the applicant.

I might say that what we really have here is a case

of much, much more than disposition. It is not

someone who had a previous conviction a year or two

ago for a similar offence, but someone who the

police are involved with watching and receiving his

correspondence and the like from the very beginning

of this criminal enterprise.

Also, the determination of the applicant to

commit the crime, and the nature of it being such

that detection is difficult. It is, as I said, an

unfortunate fact that a great bulk of heroin,

clearly, obviously, comes into this country, and

here the illegality - whilst, undoubtedly, it is

illegal - the purpose of that illegality was really

to carry out the purpose of the Act, namely, to

stop heroin coming into Australia and finding its

way out and being distributed.

Here the police had complete control of the heroin at every stage, including having actual

physical custody of it in Singapore and in
Australia.	Now, whilst that can be said, "Well,

that is just more illegality," which it is, it also

has balancing against it the safety brought about

by that close involvement in every step of the way.

It is really my submission that what appears so far to be the only special leave point is the

fact that this is a case of unusual illegality and,

in my submission, the principles that ought to be

applied to illegality of that kind are no different
from, and there is no reason to think there is a

significant difference from, the normal balancing

process. The Court of Criminal Appeal was asked to

exercise their own discretion afresh on the facts in the peculiar circumstances because of what had

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happened procedurally before the learned trial

judge. They considered those facts and they

exercised their discretion.

There is not, in my submission, any particular

point where they say or do anything that is an

error of law, and it is to be borne in mind that refers to the fact that the illegality was such,

and the gravamen of this offence, so he says, was

the element of importation, and he refers to those

matters. So he was well aware of that and put that

into to the scales in the balancing process. In my

submission there is nothing special about that, and

no reason why a balancing process should be other

than that sort of similar balancing of competing
considerations, and arriving at a decision and

exercising discretion accordingly. That is what

this case is about, in my submission.

DEANE J: Thank you, Mr Chapman. In this case there will be

a grant of special leave to appeal.

AT 12.28 PM THE MATTER WAS ADJOURNED SINE DIE

11/3/94

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