Stead v The Queen

[1992] HCATrans 280

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B28 of 1992

B e t w e e n -

NOEL JOHN STEAD

Applicant

arnd

THE QUEEN

Respondent

Application for special leave

to appeal

DAWSON J TOOHEY J GAUDRON J

Stead 1 1/10/92

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 1 OCTOBER 1992, AT 9.30 AM

Copyright in the High Court of Australia

MR R.V. HANSON, QC: If the Court pleases, I appear with my

learned friend, MR A.J. RAFTER, for the applicant.

(instructed by Legal Aid Office (Qld))

MR R.N. MILLER, QC: If the Court pleases, I appear with my

learned friend, MR M.J. BYRNE, for the respondent.

(instructed by Director of Prosecutions)

DAWSON J:	Mr Hanson.
MR HANSON:	Your Honours, we have prepared an outline of

argument and I hand that up. It assumes a fair

degree of familiarity. If Your Honours please, I

may mention the facts before we get to the outline,

if that suits Your Honours.

DAWSON J: Perhaps we will just take a moment to glance at

it, Mr Hanson. Yes, Mr Hanson.

MR HANSON: 

If the Court pleases, the charges against the

applicant arose out of a police undercover
operation code named Operation Trident and our
special leave point is that the Court of Appeal
took a path it was not free to take resulting in

uncertainty with regard to future trials arising

out of the same operation, a denial to the
applicant of the proper consideration and
determination of his appeal in accordance with the
reasoning of the Court of Appeal given in a similar
case six months before arising out of the same
operation, and uncertainty in general in the
administration of justice in Queensland.

TOOHEY J: 

Mr Hanson, when you say that it was not free to

take, do you mean simply because of the earlier
decision or for other reasons?

MR HANSON: 

Your Honour, for that reason only.

DAWSON J:  What is the relationship with the Court of Appeal

to the Court of Criminal Appeal?

MR HANSON:  It is the same court under another name,

Your Honour. The Court of Criminal Appeal was

abolished and replaced by the latter.

GAUDRON J: 

Do you not, in making the submission in outline

that I have read elevate the exercise of discretion
to a rule of practice or rule of law?

MR HANSON: 

Your Honour, at the heart of our argument is

that the statements by the court arising out of the

first trial, that is the D'Arrigo case, amounted to

a statement of principle which went beyond the

particular case there involved but were confined to

all trials subsequent - - -

Stead 2 1/10/92

GAUDRON J: Well, is it a new principle, or is it a

hardening of one aspect of a discretion?

MR HANSON:  The best I can say about it being a new

principle is this, that the court would have to ask

itself whether the statement of principle, the
declaration of policy, is on the same plane as a

point of law considered by the Court in Nguyen, to

which we refer there, which ought not to be

departed from in a subsequent case for good reason.

DAWSON J: But it was discretionary, was it not? At least

the Court of Appeal identified the discretion as

being a Bunning v Cross type discretion.

MR HANSON:  Yes, that is true, Your Honour. Our argument is

there was no room for exercising the discretion

another way.

DAWSON J: What, everything was one way?

MR HANSON:  Well everything was decided upon the way the law

enforcement authorities conducted this operation

and the statements were made regardless of the

circumstances of the accused in that particular

case.

TOOHEY J: If I could take you back to my earlier question:

when you say that, Mr Hanson, do you mean that it
was all one way however you viewed the more

relevant considerations, or it was all one way

because of what the earlier decision had held?

MR HANSON:  It was all one way because of what was said in

the earlier decision, Your Honour, which - - -

TOOHEY J: Well, you really have to - and leaving aside

questions of binding precedent and so on, if there

is any basis upon which one can be distinguished from the other, that argument really falls away,

does it not?

MR HANSON:  We have to say that the Court of Appeal in this

instant case distinguished the earlier case on the

facts and it was not entitled to do that.	It was
not entitled to.	It could not properly do so.

DAWSON J:	You want to develop that now, do you, Mr Hanson?
MR HANSON:	Yes, Your Honour.

DAWSON J: Very well.

MR HANSON:  Your Honours, the applicant has been convicted

on 26 charges of unlawful possession of motor

vehicles; 19 of those vehicles were stolen during

this undercover operation. That operation was

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conceived by the Queensland police for the purpose
of identifying people engaged in receiving stolen

cars. It ran from October 1989 until April 1990.

A police informer named Riesenweber was infiltrated

into the car stealing ring. Before he began he was

given an indemnity by the Attorney-General which

indemnified him for future offences and, if

Your Honours are interested in the terms of that

indemnity, it is to be found at page 7 of the

application book.

That indemnity has been described in the

courts below, in particular in the first appeal, by

the Chief Justice, as an assumption by the

Attorney-General of a dispensing power. Under the cloak of that indemnity, Riesenweber then participated in the theft and disposal of 68 vehicles, including the 19 the subject of the

charges against the applicant.

All of this happened with the knowledge and

the participation of the police and with

Riesenweber's co-operation, but unbeknown to the

applicant, the police even assisted in disposal of

stolen vehicles and the parts to which they had

been reduced.	When the operation closed down 83
people were arrested.	The owners of these 68

vehicles that were stolen were unaware of all of

this; they are innocent victims and the thefts were

real thefts.

The circumstances of the operation came before the Court of Criminal Appeal in 1991 when a man

called D'Arrigo, who had been convicted of

receiving one vehicle, appealed against his

conviction and the judgments are in the record.

There were three separate judgments delivered,

commencing at page 37.

DAWSON J:  I think you can take it we have read those

judgments, Mr Hanson.

MR HANSON:  Thank you, Your Honour. Our position is that in

summary the court in D'Arrigo decided, firstly,

that the indemnity was invalid; secondly, that the

Attorney-General's conduct was probably unlawful in

that he counselled or aided the commission of

future offences; thirdly, that the indemnity and
the police had encouraged the commission of
criminal offences; and the police had participated

in the whole thing.

The court decided, in our submission, that

there was to be a balancing between two competing

public interests, one being the bringing of
offenders to justice and the other being the

maintaining of the integrity of the criminal

Stead 4 1/10/92

processes and upholding observance of the law by

the State's instrumentalities and, in our

submission, an examination of those judgments show

that no consideration was given to the position of

the accused D'Arrigo.

That, in our submission, is apparent from the

judgments in D'Arrigo: the Chief Justice at

page 41, Mr Justice de Jersey at page 49 - I am

speaking of the pages in the application book - and

Mr Justice Dowsett at page 54. As a result, in our

submission, the Court of Criminal Appeal decided

that the evidence of Riesenweber should not be
received and that that amounted to a policy

pronouncement with respect to the administration of

criminal justice which had application to all

subsequent trials where the Crown sought to rely

upon evidence obtained pursuant to that operation

or, at least, to all subsequent trials where

Riesenweber was an essential witness, and this was

such a case.

DAWSON J:  You said "this was such a case"; the present case

was such a case?

MR HANSON:  Yes, the present case was such a case.

DAWSON J: There were differences, were there not, which

were identified by the Court of Criminal Appeal?

MR HANSON:  They were. They all amount to this,

Your Honour, in our submission, that Stead was a

bigger fish than D'Arrigo, and there is nothing

more to it than that.

DAWSON J:  And he had been engaged in a series of offences,

some pre-dating the ones with which we are

concerned?

MR HANSON:	Oh, yes.
DAWSON J: Yes.
MR HANSON:	And some of those for which he has been

convicted, of course, were for that activity and

are not the subject of this application.

Your Honours, although the trial in the

instant case took place before the judgment in

D'Arrigo, the appeal, the subject of this

application, was heard afterwards, and the Court of

Appeal neither followed D'Arrigo nor said it was

wrong. That is to be found at page 27, line 22, of

the application book.

Your Honours, we make that point at the foot of page 2 of the outline and we point out there how

Stead 1/10/92

the court in the present case reached its own

conclusion based on circumstances, some of which

were common to both cases and some of which were

special to the particular case.	We give those
references at the foot of page 2.

The submission, shortly, Your Honours, is that

having regard to the basis on which the statement

was made in D'Arrigo, being a statement of

principle and an enunciation from the highest court

that the courts in Queensland just would have

nothing to do with the evidence obtained by this

means, which involved illegal conduct from the

Attorney-General down, that the individual

circumstances of those who came to trial later

would not be relevant, and it is just not good

enough to distinguish what the court said in

D'Arrigo's case by saying, "Well, this time we've

got a bigger fish than D'Arrigo and therefore other

considerations come into play".

DAWSON J: Well, it is not just a bigger fish. You have

more car thefts. You have more owners concerned to

see the perpetrator brought to justice. That was a

point that was made something of by the Court of

Criminal Appeal.

MR HANSON:  True, Your Honour. I cannot deny that, of

course. The submission is though that the Court of

Criminal Appeal in D'Arrigo proceeded to look

solely at the conduct from the Attorney-General

down, and said, "We will have nothing of this,

nothing of it." And in paragraph 6 of the outline
we summarize the effect then, in our submission, of
the attitude of the Court of Appeal in the present

case.

The point we want to make in (ii) is this:

how does the judge at trial deal with an offender

who comes before him who is concerned with perhaps

six or eight cars, where the Court of Criminal

Appeal in D'Arrigo say where D'Arrigo was concerned

with one, make a pronouncement of policy. The Court
of Appeal in the instant case, where there are 19
vehicles involved, say that the sheer weight of

numbers and the bigger fish outweigh the unlawful

conduct of the Attorney-General and the police, how

does the trial judge who has a man before him who

has six or eight cars deal with the exercise of his

discretion?

DAWSON J:  He has to go through a balancing process. The

exercise of a discretion is not the pronouncement

of a policy. It is the weighing of the particular

factors in a particular case and reaching a

conclusion, and it need not be a conclusion which

everyone must arrive at. Because it is a

Stead 6 1/10/92

discretion one court may come to one conclusion and

another to another, quite properly.	I am putting
that to you as a proposition.

MR HANSON:  Your Honour, at the heart of our submission is

that it went beyond a matter of discretion, having

regard to the most unusual circumstances where the

Attorney-General has said - - -

GAUDRON J: Well, if that is so it must be a new rule of

law, and the earlier decision must be in conflict

with what was said in Bunning v Cross, that it was

a decision.

MR HANSON:  Your Honour, I have a little bit of difficulty

calling it a rule of law. It is a statement of

policy derived from a particular set of

circumstances which are not going to be repeated.

Undoubtedly, I think you will see from the

judgments in the present case the Crown conceded

the indemnity was invalid.	So it is not going to
happen again.	So I have a little bit of
difficulty saying it is a point of law.	We call it
a pronouncement of policy to be followed

thereafter, flowing from the conduct of the State's
law enforcement authorities independent of the
circumstances of the offender. Those are our

submissions, Your Honour.

DAWSON J:  We need not trouble you, Mr Miller. This

application concerns the exercise of the trial

judge's discretion to admit evidence which was the

foundation of the prosecution case.

The Court of Appeal considered the

circumstances identified in Bunning v Cross which

were relevant to the admission of the evidence and

concluded that, notwithstanding the earlier

decision of the Court of Criminal Appeal in Reg v D'Arrigo, the exercise of discretion by the trial

judge had not miscarried. We are not persuaded

that the Court of Appeal was incorrect in reaching
this conclusion. The different result in D'Arrigo
is explicable by the different circumstances in

that case which bore upon the exercise of the same

discretion.

Accordingly, special leave to appeal is

refused.

AT 9.45 AM THE MATTER WAS ADJOURNED SINE DIE

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