Tasmania v Lam
[2006] TASSC 7
•28 November 2005
[2006] TASSC 7
CITATION: Tasmania v Lam [2006] TASSC 7
PARTIES: TASMANIA, STATE OF
v
LAM, David Wing Leong
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 46/2005
DELIVERED ON: 28 November 2005
DELIVERED AT: Launceston
HEARING DATE: 10, 11 August 2005
JUDGMENT OF: Crawford J
CATCHWORDS:
Criminal Law – General matters – Ancillary liability – Conspiracy – Generally – Whether offender must be capable of committing the crime the object of the conspiracy – Whether only one of the conspirators need be so capable.
Gallagher (1989) 44 A Crim R 256, applied.
Aust Dig Criminal Law [87]
Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Evidence unfair to admit or improperly obtained – Illegally obtained evidence – Generally.
Evidence Act 2001 (Tas), s138(1).
Aust Dig Criminal Law [423] [425]
REPRESENTATION:
Counsel:
State: A R Jacobs
Accused: W A Ayliffe & K H Targett
Solicitors:
State: Director of Public Prosecutions
Accused: Ritchie & Parker Alfred Green & Co
Judgment Number: [2006] TASSC 7
Number of paragraphs: 72
Serial No 7/2006
File No 46/2005
STATE OF TASMANIA v DAVID WING LEONG LAM
REASONS FOR JUDGMENT CRAWFORD J
28 November 2005
The accused is charged on an indictment with three counts of illegal possession of fish, contrary to the Living Marine Resources Management Act 1995, s264(1). Count 1 alleges that on or about 23 April 2002, without lawful excuse, he had possession of 80.2 kilograms of abalone meat with a value, determined in accordance with s269, exceeding $5,000, namely $6,492.20. Count 2 similarly alleges possession on or about 21 May 2002 of 100.24 kilograms of abalone meat with a value of $8,294.40. Count 3 similarly alleges possession on or about 2 July 2002 of 160.7 kilograms of abalone meat with a value of $13,016.70.
The accused pleaded not guilty to the three charges. Prior to a jury being sworn for his trial, he applied under the Criminal Code, s361A, to have determined the admissibility of evidence of conversations he had with others, many of which were electronically recorded, and the question whether it is a defence available to him that his possession was lawful because the abalone had been lawfully taken, processed, sold and delivered by police officers by virtue of the officers having been exempted from the provisions of the Living Marine Resources Management Act, under s11.
In summary, the State's case includes the following. In August 2001, the Tasmania Police Service commenced Operation Oakum, under the auspices of the Oakum Task Force, an investigative unit within the Tasmania Police Service. Its focus was to conduct investigations into the activities of a network of associated individuals who were believed to be involved in organised criminal conduct based upon the systematic and illegal taking of abalone from State waters, the subsequent processing of that abalone and its export from Tasmania. Police obtained evidence and information indicating that there existed a network of organised groups of individuals, involved in the systematic poaching of abalone, whose operations were highly organised. Participants were believed to be acutely aware of police methods and to use sophisticated anti-surveillance and security measures to avoid detection. Indications were that the organised activities of the network involved at least 12 separate groups of divers engaged in taking considerable quantities of abalone illegally, and that a hard core group coordinated collection of abalone from divers and arranged for its illegal processing, packaging and interstate transportation by a variety of means.
Believed to be heavily involved in those illegal activities were Tasmanians Michael Francis Munday and his brother Christopher Munday, and Victorian David Campbell Strachan. Also involved in assisting Michael Munday in illegal taking and supplying of abalone was a man who became a registered police informant known as "Ski jump". Operation Oakum was aimed at all aspects of the illegal activity, including diving, transportation, processing and delivering to persons in Tasmania and interstate.
On 10 and 16 January 2002, a magistrate authorised warrants ("the earlier warrants") under the Listening Devices Act 1991, s17, for the use of listening devices to record and listen to the private conversations of Michael Munday and other associates, including Christopher Munday and David Strachan, "Ski jump" and his associates. Information concerning the illegal activities of Michael Munday, his associates "Kevin" and Kevin's son, Christopher Munday, David Strachan and "Ski jump" was obtained with and without the assistance of the listening devices that were used under the authority of the earlier warrants. "Ski jump's" activities were conducted with the full knowledge of the police and he kept the police informed of what was going on. He deliberately took part in conversations that to his knowledge were being recorded under the authority of the earlier warrants.
On 28 February 2002, Detective Sergeant Cerritelli applied to a magistrate for another warrant under the Listening Devices Act. In support of his application he made a comprehensive statutory declaration in which he explained in detail the history I have summarised. Based on the available information he had received, he expressed a belief that "Michael Francis Munday and his associates including David Campbell Strachan and Christopher Munday have been, and continue to be, involved in the systematic illegal taking of abalone from Tasmanian State Waters and it's [sic] export from Tasmania". He stated that "'Ski jump' has indicated that he is prepared to provide ongoing assistance to the Oakum Task force by wearing a recording device in order to record conversations with Michael Francis Munday and other associates including Christopher Munday and David Campbell Strachan who are engaged in the illegal supply of abalone" and "to record conversations in connection with Munday providing false evidence in connection with his apprehension on 16/12/01". Detective Sergeant Cerritelli declared that it was proposed that pursuant to the warrant he was seeking, listening devices would be used to permit police to record and listen to those conversations, and that their use was necessary for the purposes of obtaining "further information and/or evidence in relation to the involvement of aforementioned persons and their associates in relation to the prescribed offences" that were mentioned earlier in the statutory declaration. He formally sought a new warrant authorising the installation of two (2) listening devices on or about the person of registered informant "Ski jump", for the purpose of listening to and recording the private conversations with Michael Francis Munday and other associates including Christopher Munday and David Campbell Strachan. No mention was made of the accused in the statutory declaration, because the police had no information or evidence at that time which implicated him in illegal activities.
On 28 February 2002, as a consequence of Detective Sergeant Cerritelli's application, the magistrate used his powers under s17 to authorise, by warrant ("the first warrant"), Detective Sergeant Cerritelli and on his behalf, "Ski jump" and certain other police officers and persons, to use "two listening devices by which to record and listen to the private conversations of Michael Francis MUNDAY and other associates including Christopher MUNDAY and David Campbell STRACHAN, registered informant 'Ski jump' and his associates". The warrant also authorised the installation of the listening devices on or about "Ski jump's" person and authorised and required the retrieval of the devices from "Ski jump". The period during which the warrant was to be in force was fixed as 5pm on 28 February 2002 to 5pm on 28 April 2002. It is the defence case that the warrant did not authorise the recording of and listening to the private conversations of the accused.
The State's case continues that on 14 March 2002, "Ski jump" contacted Michael Munday at his home by telephone. Munday indicated that the two of them would dive for abalone on Monday, Tuesday or Wednesday of the following week and "Ski jump" was to install two bunk beds in a new vessel. For the first time, the accused was mentioned when Michael Munday told "Ski jump" to contact a person who bought abalone in Launceston by the name "David" (who was the accused). Munday gave "Ski jump" the accused's mobile telephone number, told him the pick-up man for the accused was "Alex" and gave "Ski jump" a mobile telephone number for Alex as well. Munday explained to "Ski jump" that he had once agreed to sell 160 kilograms of abalone to the accused and that the accused had paid for them, but upon the accused weighing the abalone after delivery he had found that he had been short supplied with only 103 kilograms. Munday said that the accused had vowed never to have anything to do with him again. Munday did not want the accused to know that he was involved and he told "Ski jump" to say to the accused that Christopher Munday had given him the contact number.
The State will seek to call evidence of a number of conversations it says took place subsequently between the accused and his agent with "Ski jump" and an undercover police officer, Constable Gary Hays. Many of them were recorded by listening devices. I will continue with the history before dealing with the basis upon which the accused seeks to have all of that evidence ruled inadmissible.
The State's case continues that on 14 March 2002, "Ski jump" contacted the accused on the telephone number Michael Munday had provided. "Ski jump" told the accused, as instructed by Michael Munday, that Christopher Munday had provided him with the accused's number. He explained that he was a diver from St Helens and that he had some abalone for sale at $40 per kilo. Apparently mistaking the reference to Christopher Munday as being a reference to Michael Munday, the accused related to "Ski jump" how he had bought from Michael Munday and paid for 160 kilograms of abalone, but on delivery it had weighed only 105 kilograms, and how he had told Michael Munday "that's finish, no more business". "Ski jump" pointed out to him that he was confusing Christopher Munday with his brother, Michael. The accused indicated that $40 per kilogram was too much and he could offer $20 per kilogram. They arranged that they could meet some time and that "Ski jump" would telephone to arrange it. "Ski jump" telephoned the accused back calling himself "Eddie". He said that he had been talking to his "partner" who wanted $30 per kilogram. The accused said he would have to ask his "friend", adding that "they have to come over from somewhere, you know, someone has to pick it up". They arranged that "Ski jump" would telephone the accused the following day. Those two telephone conversations were recorded by means of listening devices.
On Saturday, 16 March 2002, "Ski jump" contacted the accused by telephone and they arranged to meet in Launceston on Tuesday, 19 March. Counsel for the accused said that the conversation was recorded by means of a listening device, but there was no evidence of that to which I was referred.
On 19 March 2002, the two men met in a food hall in Launceston. They determined that the accused would purchase abalone from "Ski jump" for $28 per kilogram. The accused offered to supply "Ski jump" with a freezer to store the abalone at "Ski jump's" home. The meeting concluded with "Ski jump" agreeing to contact the accused by telephone to arrange to deliver abalone to the accused the following week. Counsel for the accused said that the conversation was not recorded by a listening device because the device failed.
Later that day Michael Munday contacted "Ski jump" and they discussed their proposed involvement in diving for abalone. "Ski jump" did not mention to Munday his recent dealings with the accused. It appears that thereafter all of "Ski jump's" dealings with the accused were at the instigation of the police and that sales of abalone by "Ski jump" to the accused, and deliveries of those abalone to the accused's agent, were also made at the instigation of the police, who dived for and processed the abalone and undertook the actual deliveries.
On Friday, 22 March 2002, "Ski jump" and the accused spoke again. The accused said that "my friend" ask you to bring fifty, fifty kilo" of abalone. They arranged that "Ski jump's" "partner" (who was to be an undercover police officer) would deliver the 50 kilograms of abalone to the accused's "friend" in Launceston the following Tuesday at a time they would arrange by telephone on the Monday night. That conversation was recorded by means of a listening device. On the same day, "Ski jump" spoke with Michael Munday about a diving trip they were planning.
On 25 March 2002, Detective Inspector Plumpton applied to a magistrate for another warrant under the Listening Devices Act. In support of the application, he also made a comprehensive statutory declaration in which he explained in detail much of the history I have summarised. As Detective Sergeant Cerritelli had done, Detective Inspector Plumpton declared that based on the available information he had received, he believed that "Michael Francis Munday and his associates David Campbell Strachan and Christopher Munday have been, and continue to be, involved in the systematic illegal taking of abalone from Tasmanian State Waters and it's [sic] export from Tasmania". He also declared that "furthermore, from the information available to which reference has been made in this affidavit, it is my belief that David Wing Leong LAM and his associates have been, and continue to be, involved in the systematic illegal taking of abalone from Tasmanian State Waters and it's [sic] export from Tasmania". He expressed his belief, "based on current and ongoing investigations that David Wing Leong LAM has in the past purchased illegally obtained abalone from Michael Francis MUNDAY, and that he will without lawful excuse have in his possession abalone exceeding $5,000 which is a Crime under section 264 of the Living Marine Resources Management Act 1995". Detective Inspector Plumpton stated that "Ski jump" had indicated that he was prepared to provide ongoing assistance to the Oakum Task force "to record conversations with Michael Francis Munday and other associates including Christopher Munday and David Campbell Strachan, and David Wing Leong LAM and his associates, who are engaged in the illegal supply of abalone". Detective Inspector Plumpton declared that it was proposed that listening devices be utilised to permit police to record and listen to those conversations, and that their use was necessary for the purposes of enabling evidence to be obtained of the commission of prescribed offences that were specified. He formally sought "a new warrant pursuant to Section 17 of the Listening Devices Act 1991 authorising the installation of two (2) listening devices" the object being "to obtain further information and/or evidence in relation to the involvement of aforementioned persons and their associates in relation to the prescribed offences".
On 25 March 2002, as a consequence of Detective Inspector Plumpton's application, the magistrate used his powers under section 17 to authorise, by warrant ("the second warrant"), Detective Inspector Plumpton and on his behalf, certain other police officers and persons, to use "two listening devices to record and listen to the private conversations of Michael Francis MUNDAY and other associates including Christopher MUNDAY and David Campbell STRACHAN, registered informant "Ski jump" and his associates; and David Wing Leong LAM and his associates". The period during which the warrant was to be in force was fixed as 5pm on 25 March 2002 to 5pm on 25 May 2002. It is the defence case that although in its terms the warrant clearly authorises the recording of and listening to the private conversations of the accused, evidence of those conversations was obtained as a direct consequence of his earlier conversations coming to the knowledge of a person as a result, direct or indirect, of the use of a listening device in contravention of the Listening Devices Act, s14(1).
The Living Marine Resources Management Act, s11(1), gave to the Minister for Primary Industries, Water and Environment power, by order published in the Gazette, to exempt a class of persons from any provision of the Act subject to any condition the Minister determined. On 23 January 2002, the Minister published such an exemption order in the Gazette. It ordered that police officers acting under the authority of the Inspector of Police in charge of the Marine and Resource Division of the Operations Support District of the Tasmania Police Service were exempted from the provisions of the Act and any regulations and rules made thereunder, for the purpose of law enforcement. The order was expressed to remain in force for a period of four months from 23 January 2002. On 15 May 2002, the Minister published in the Gazette a similarly expressed order that was to remain in force for a period of four months from 15 May 2002.
Protected by the first of those exemptions, a police officer or officers harvested a quantity of abalone. Counsel for the State said that the abalone was taken partly for the purpose of making a controlled delivery to the accused and partly for another purpose or purposes.
A person who the State says was the accused's agent for the purposes of delivering abalone to him or to his order, used "Lee" as a pseudonym. I will call him that. The State's case is that on 26 March 2002, Constable Hays, in the performance of his undercover role, contacted Lee on the telephone number provided by the accused to "Ski jump", and arranged to meet in the car park of a Launceston food hall. I understand that a listening device recorded that conversation. Having met, Constable Hays followed Lee to the car park at the Elphin Sports Centre, where Constable Hays delivered 50.55 kilograms of abalone to Lee in return for $1,400 paid by Lee after weighing the abalone. I understand that a listening device recorded their conversation.
Most of the telephone calls by "Ski jump" that were listened to and recorded by police officers prior to 29 March 2002, were made by or in the presence of the police officer who was responsible for controlling and overseeing the call. From 29 March, a conference call method was commonly utilised, with a police officer, perhaps in Launceston or Hobart and remote from "Ski jump", who might, for example, have been in St Helens. The police officer would place the call to say, the accused, and then transfer the call to "Ski jump", but at the same time listen to and record the conversation.
On 29 March 2002, "Ski jump" spoke by telephone to the accused. A listening device recorded their conversation. It included that the accused had buckets to hold three kilograms which he would give to "Ski jump"; that the accused's friend was coming over every Tuesday; and that the accused's friend would take 50 kilograms for a start. The accused asked "Ski jump" if he had a freezer.
On 30 March 2002, "Ski jump" and the accused spoke again by telephone. A listening device recorded their conversation. It included a suggestion by the accused that "Ski jump" should rent a place and put a freezer in it; that the accused would then take abalone out of the freezer on a weekly basis and subsequently meet "Ski jump" to organise payment; that 100 kilograms of abalone would be delivered on 23 April 2002; and that the accused would give "Ski jump" some bags and buckets that would hold three kilograms to make it easier to put the abalone in boxes. The accused indicated that there was a space available to rent at Coats Patons, Launceston, with rooms which were lockable and into which a person could drive a car.
On 4 April 2002, "Ski jump" spoke to the accused by telephone and arranged to meet him the following day at the food hall. Their conversation was recorded by a listening device. Later that day "Ski jump" attempted to contact Michael Munday by telephone, but was only able to speak to his domestic partner.
On 5 April 2002, Constable Hays and "Ski jump" met the accused at the food hall. A listening device recorded their conversation. The accused gave them a quantity of plastic tubs with holes bored inside half of them. He instructed them on how he required the abalone to be prepared with the utilisation of the tubs. The accused again mentioned Coats Patons as a possible location for a freezer. They discussed drying abalone. The accused wanted dry abalone to obtain a better price. He said that Lee was unhappy as the abalone from the first delivery had thawed out by the time it reached Melbourne.
Protected by the first of the exemptions, a police officer or officers harvested a quantity of abalone on 11 April 2002. On the following day "Ski jump" attempted to speak to Michael Munday by telephone, succeeding on the third attempt. A listening device recorded their conversation. They talked about a proposed dive. "Ski jump" spoke to Michael Munday again by telephone on 19 April 2002. In the course of their conversation, Munday indicated that the accused was not good to deal with.
On 22 April 2002, "Ski jump" spoke to the accused by telephone. A listening device recorded their conversation. They arranged that a delivery of 80 – 85 kilograms of abalone would be made the following day. The accused asked "Ski jump" to contact Lee just prior to the delivery time. The accused said that his friend had told him that he could take 100 – 150 kilograms with no problem.
On 23 April 2002, Constable Hays spoke to Lee by telephone. Their conversation was recorded. A meeting was arranged for the car park at the Elphin Sports Centre. Later that day, Constable Hays made a controlled delivery of 80.2 kilograms of abalone meat to Lee. After that transaction police followed Lee to Coats Patons, where he went inside. That abalone is the subject of the first count in the indictment.
On 24 April 2002, "Ski jump" spoke to Michael Munday by telephone. A listening device recorded their conversation. In the course of it Munday told "Ski jump" that the accused had him "on the hook" and was not a good person to deal with. They talked about the possibility of "Ski jump" taking fish to the mainland and about doing a small trip first and heading round the coast.
The State's case continues that on 27 April 2002, "Ski jump" and the accused spoke by telephone. Their conversation was recorded by a listening device. During the course of the conversation they made arrangements for a delivery on 14 May 2002. The accused stated that he could handle 100 – 200 kilograms.
On 29 April 2002, a telephone conversation between "Ski jump" and Michael Munday was recorded by a listening device. On 30 April 2002, "Ski jump" travelled to Michael Munday's residence at Garden Island Creek. Their conversation was recorded by a listening device. They discussed past and future trips in connection with taking illegal abalone. The accused was briefly mentioned in relation to the original sale to him of 160 kilograms of abalone, with respect to which it was said that the accused's pick-up man "Alex" stole 56 kilograms, so that only 104 kilograms was delivered to the accused. Further telephone conversations between "Ski jump" and Michael Munday on 1 and 2 May 2002 were recorded by a listening device.
Protected by the first of the exemptions under the Living Marine Resources Management Act, s11(1), police harvested 118 kilograms of abalone on 3 May 2002. On 7 May, police went to the Coats Patons building and ascertained from the manager that the accused had rented a lockable storage area inside the complex for about two years. On 13 May, "Ski jump" spoke to the accused by telephone. Their conversation was recorded by a listening device. They arranged for a delivery of 100 kilograms of abalone the following week. The accused said that the most he could handle was 200 kilograms.
On 20 May 2002, "Ski jump" spoke to the accused by telephone and the conversation was recorded. Arrangements were made for the delivery of 100 kilograms and for "Ski jump" to pick up more buckets. On the same day, police searched the accused's storage area at Coats Patons pursuant to a search warrant.
On 21 May 2002, Constable Hays spoke to Lee by telephone and they arranged to meet at the Elphin Sports Centre car park. Constable Hays drove there and met Lee, who gave Constable Hays 14 ice cream buckets. Constable Hays then delivered 102.4 kilograms of abalone meat to Lee, who paid Constable Hays $2,800. That abalone is the subject of the second count in the indictment. Police followed Lee to the Coats Patons complex where he went inside. Later that day, police searched the accused's storage area inside the building. They did not find any abalone but observed that packaging material seen there the day before had changed. It appeared that some of the material had been used to package something.
On 27 May 2002, Detective Sergeant Shaw applied to a magistrate for another warrant under the Listening Devices Act. In support of his application he made a comprehensive statutory declaration in which he explained in detail the history I have summarised. Based on the available information he had received, he expressed a belief that "Michael Francis Munday and his associates including David Campbell Strachan and Christopher Munday have been, and continue to be, involved in a systematic illegal taking of abalone from Tasmanian State Waters and it's [sic] export from Tasmania". He also expressed his "belief that David Wing Leon LAM and his associates have been, and continue to be, involved in a systematic illegal taking of abalone from Tasmanian State Waters and it's [sic] export from Tasmania". He asserted a belief that the accused's conduct involved the commission of certain prescribed offences and "based on current and ongoing investigations that David Wing Leong LAM has in the past purchased illegally obtained abalone from Michael Francis Munday, and that he will without lawful excuse have in his possession abalone exceeding $5,000 which is a Crime under section 264 of the Living Marine Resources Management Act1995".
Pursuant to that and other information contained in Detective Sergeant Shaw's statutory declaration, another warrant ("the third warrant") under the Listening Devices Act was issued by the magistrate on 27 May 2002. It authorised Detective Sergeant Shaw and on his behalf, certain other police officers and persons, to use two listening devices to listen to and record the private conversations of the same persons who were the object of the second warrant, so that the conversations of the accused and his associates were once again specifically identified as objects of the warrant. It fixed the period of time during which it was to be in force as 4pm on 27 May 2002 to 4pm on 25 July 2002.
It is part of the State's case that listening devices recorded further conversations involving the accused leading up to the delivery, on 2 July 2002, of 160.7 kilograms of abalone meat by an undercover police officer to the accused, the abalone having been taken, processed and otherwise handled by the police pursuant to an exemption under the Living Marine Resources Management Act, s11(1). That abalone is the subject of the third count in the indictment.
On the State's case, an undercover police officer delivered abalone meat to the accused's agent on five occasions, that is to say on 26 March, 23 April, 21 May, 4 June and 2 July 2002. However, only the abalone meat delivered on the second, third and fifth of those occasions respectively form the subject of the three counts. The value of abalone meat delivered on the first and fourth occasions was insufficient to make possession an indictable offence under the Living Marine Resources Management Act, s264(1).
Operation Oakum involved much more than these reasons describe. I have referred to five warrants under the Listening Devices Act, but there were close to 20 warrants overall that were obtained. A number of groups of offenders were being investigated.
The Listening Devices Act 1991
The basic prohibition of s5(1) is that a person shall not use, or cause or permit to be used a listening device to record or listen to a private conversation, whether the person is or is not a party to the conversation. There is no dispute that what the police utilised to record the conversations that are relevant in this case was a listening device, nor that the conversations of the accused or his alleged agent that were recorded, amounted to private conversations, in the sense that those terms are used in the Act.
Grafted onto the basic prohibition of s5(1) are some exceptions. One of them, to be found in s5(2)(a), is that the prohibition does not apply to the use of a listening device pursuant to a warrant granted under Pt 4, which contains s17, the section pursuant to which the warrants used in this case were granted. Subject to the statutory exceptions, a person who contravenes the Act by using a listening device to record or listen to a private conversation commits an offence and is liable to punishment which, in the case of an individual, can be a fine or imprisonment for up to two years.
Section 14 provides for the inadmissibility of evidence of private conversations when unlawfully obtained. Subsection (1) is in these terms:
"(1) Where a private conversation has come to the knowledge of a person as a result, direct or indirect, of the use of a listening device in contravention of section 5 –
(a)evidence of the conversation; and
(b)evidence obtained as a direct consequence of the conversation so coming to the knowledge of that person –
may not be given by that person in any proceedings before any court or person authorized to receive evidence."
Counsel for the accused asserted that a court has no discretion to admit evidence that is inadmissible by reason of subs14(1) because, in its terms, the subsection contains an absolute prohibition on the giving of evidence falling within it. The assertion was incorrect because subs(3) provides that, subject to the exercise of the Court's discretion, subs(1) does not render any evidence inadmissible in certain circumstances, two of which, in pars14(3)(b) and (d), apply in the circumstances of this case. The exercise of the discretion in circumstances coming within par(d) is subject to the requirements of subs(4). The relevant provisions are:
"(3) Subsections (1) and (2) do not render any evidence inadmissible –
(a)...; or
(b)if the private conversation concerned comes to the knowledge of the person called to give the evidence otherwise than in the manner referred to in those subsections, notwithstanding that the person also obtained knowledge of the conversation in such a manner; or
(c)...; or
(d)in proceedings for –
(i)an offence punishable by imprisonment for life or for 21 years; or
(ii)a serious narcotics offence –
if the court considers that the evidence should be admissible.
(4) In determining whether to admit evidence as referred to in subsection (3)(d), the court shall –
(a)be guided by the public interest, including where relevant the public interest in –
(i)upholding the law; and
(ii)protecting people from illegal or unfair treatment; and
(iii)punishing those guilty of offences; and
(b) have regard to all relevant matters, including –
(i)the seriousness of the offence in relation to which the evidence is sought to be admitted; and
(ii) the nature of the contravention of section 5 concerned."
Subject to the exercise of the Court's discretion, par3(b) excepts from the prohibition of subs(1) the giving of such evidence by a person if the private conversation came to that person's knowledge otherwise than in the manner referred to in subs(1), notwithstanding that the person also obtained knowledge of the conversation in such a manner. Thus, a person who was a party to the private conversation, or a person who overheard it other than by the unlawful use of a listening device, could, subject to the Court's discretion being favourably exercised, give evidence of it, notwithstanding the provisions of subs(1).
Further, subject to the exercise of the Court's discretion, par(3)(d) excepts from the prohibition of subs(1) the giving of such evidence in proceedings for an offence punishable by imprisonment for life or for 21 years. These proceedings are for an offence against the Living Marine Resources Act, s264(1), which is punishable by imprisonment for 21 years, because s264(1) provides that it is an indictable offence punishable under the Criminal Code, and s389(3) of the Code provides for punishment by imprisonment for 21 years.
The validity of the warrants
Provision is made by s17 for the grant of warrants authorising the use of listening devices in certain circumstances. By subs(1) it is provided that upon complaint made by a police officer of or above the rank of sergeant that the officer suspects or believes that a prescribed offence has been, or is about to be, or is likely to be, committed and that, for the purpose of an investigation into that offence or of enabling evidence to be obtained of the commission of the offence or the identity of the offender, the use of a listening device is necessary, a magistrate may, if satisfied that there are reasonable grounds for that suspicion or belief, authorise, by warrant, the use of a listening device. Matters to be taken into account by the magistrate are prescribed by subs(2).
Subsection 17(4) governs the contents of a warrant granted by a magistrate. It requires that a warrant shall specify (inter alia) where practicable, the name of any person whose private conversation may be recorded or listened to by the use of a listening device pursuant to the warrant. I am satisfied that it was not practicable to specify the name of the accused in the first warrant, because no association between him and the illegal activities being investigated had been made at the time the warrant was granted. His name was specified in the second and third warrants. No suggestion has been made that any of the warrants failed to comply with subs17(4).
It was submitted by counsel for the accused that the warranties were invalid because s17 did not authorise the grant of the warrants in circumstances where police officers and "Ski jump" were taking part in an unlawful conspiracy (a subject with which I will deal later) and where the role of the police was a dominant one, without which the abalone would never have been delivered to the alleged agent of the accused, Lee. Counsel submitted that the police officers could not have had reasonable grounds for suspecting or believing that a prescribed offence was about to be, or was likely to be, committed. There was no merit in the submissions, the detail of which I had difficulty following. There is no reason to think that the police officers who made the complaints for the warrants did not have reasonable grounds for believing that a person was likely to commit a prescribed offence, such as one under s264. Possession by a person of abalone exceeding $5,000 in value, without lawful excuse, would amount to such an offence, except in the case of a person exempted under s11. Further, that the police officers who made the complaints may not have had reasonable grounds for their beliefs would not affect the validity of the warrants. What is required is that the magistrates, who granted the warrants, were satisfied that there were reasonable grounds for the relevant suspicion or belief, and there was no evidence to suggest that the magistrates who granted the warrants were not so satisfied.
I add that counsel relied on Coco v R (1994) 179 CLR 427 at 436, but I do not understand why. That case concerned different statutory provisions and different factual circumstances and is irrelevant here.
The authority of the first warrant
The first warrant dated 28 February 2002 authorised the use by certain persons "of two listening devices by which to record and listen to the private conversations of Michael Francis MUNDAY and other associates including Christopher MUNDAY and David Campbell STRACHAN, registered informant 'Ski jump' and his associates". It was submitted by counsel for the accused that it did not authorise the use of a listening device to record and listen to the two telephone conversations on 14 March and the telephone conversation on 22 March between "Ski jump" and the accused. I am not aware of evidence of any other relevant uses of listening devices prior to the grant on 25 March of the second warrant.
When making his submissions, counsel for the accused commenced by pointing out that the accused was not named in the first warrant as an object of the authorised use of a listening device and then submitted that the accused could not be regarded as having been an associate of "Ski jump", for the purposes of the expression in the warrant "'Ski jump' and his associates". Counsel for the State interrupted and said that he would not seek to argue that and that his submission was that the first warrant authorised the use of a listening device with respect to the conversations in question because the accused was an associate of Michael Munday. Counsel for the accused then submitted that although there was evidence that there may in the past have been an association between Michael Munday and the accused, it was evidence only that Munday had sold and delivered abalone to the accused on one occasion and that because the accused believed that there was a substantial short delivery, he had vowed never to deal with Munday again. It was submitted that it could not be said that the accused remained an associate of Michael Munday at the relevant time. Counsel for the State argued to the contrary.
The extent of the authority of the first warrant is to be determined from a consideration of its terms. It did not limit the authorised use of the listening devices to recording and listening to private conversations between any two or more of the persons specified in the warrant or to whom it referred. The authority extended to the private conversations of Michael Francis Munday and of other persons. In particular, the authority extended to the private conversations of "Ski jump". Each of the relevant conversations on 14 and 22 March that were recorded and listened to by means of a listening device, were private conversations of "Ski jump" and were within the express authority of the warrant, regardless of whether the accused was an associate of Michael Francis Munday or "Ski jump". Therefore, I hold that the first warrant authorised the use of the listening device to record and listen to those conversations.
It is unnecessary to deal further with the submissions of counsel concerning the authority of the first warrant, but I will do so. I agree with counsel for the accused that the evidence did not establish that at the time of the relevant conversations the accused was an associate of Michael Munday. It established only that they once had an association in the course of which Munday unlawfully supplied the accused with abalone. It did not establish that they were associates at the relevant time, because their relationship had ceased to exist.
I also agree with counsel for the accused that at the time that "Ski jump" first spoke to the accused on 14 March, they were not associates. They did not know each other and could not be described as associates of each other. It follows that if, contrary to my view, the first warrant only authorised the recording of and listening to private conversations that occurred between any two or more of the persons specified or referred to in the warrant, it did not authorise the use of the listening device with respect to the first of the conversations between "Ski jump" and the accused on 14 March. However, by the point in time, in the course of that conversation, when they arranged that they could meet sometime in the future and that "Ski jump" would telephone to arrange it, they were associates of each other. No agreement between them was reached concerning a sale of abalone by "Ski jump" to the accused, but the seeds for sale had been sown and the accused invited "Ski jump" to call him by telephone and to "come up to see me if you like". He added that he could meet "Ski jump" and that he could arrange for somebody to pick the abalone up. Certainly when the second conversation commenced, later that day as I understand it, the accused was an associate of "Ski jump". In the course of that conversation they discussed the size of the abalone to be supplied, whether it would be frozen, and its price. "Ski jump" said that his friend wanted $30 per kilogram and the accused said that he would have to ask his friend, because that was not what he wanted. He added that "they have to come over from somewhere ... to pick it up", which I infer to be a reference to a person coming from outside Tasmania to take delivery of the abalone. They agreed that "Ski jump" would call the accused again. After that conversation, their association developed and eventually, on the State's case, five deliveries of abalone meat to the agent of the accused were made as a result of the association they had formed.
Counsel referred to the meanings of "associate" as provided in the Shorter Oxford English dictionary and the Macquarie dictionary. They include a partner in interest, as in business or in an enterprise or action; a confederate; an accomplice; and one who is united to another by a community of interest. The relationship of "Ski jump" and the accused from the outset of the second of their conversations fell within those descriptions.
In summary, I find that the recording of and listening to the conversations between "Ski jump" and the accused on 14 and 22 March were authorised by the first warrant because they were all private conversations of "Ski jump". I also hold that the recording of and listening to the second of the conversations on 14 March and the conversation on 22 March, between the two men, was authorised by the first warrant because they were private conversations between "Ski jump" and one of his associates.
Whether the Listening Devices Act, s14, excluded evidence of any of the conversations
It was submitted for the accused that evidence of all of the conversations involving him, that were recorded and listened to by means of a listening device, were inadmissible because of s14(1). To understand the submission it is first necessary to consider the conversations with which I have just dealt, that is the two recorded and listened to conversations between "Ski jump" and the accused on 14 March and their conversation on 22 March. Upon the basis of my finding that all of those conversations came within the authority of the first warrant, none is inadmissible under s14(1). Because, as is admitted, all of the relevant conversations that were recorded and listened to after the grant of the second or third warrants were authorised by the terms of the warrants, it follows that none of the recordings of the conversations with respect to which objection was taken is inadmissible under the subsection.
However, if I am wrong in finding that the use of a listening device with respect to their first conversation on 14 March was authorised by the terms of the first warrant merely because it was a private conversation of "Ski jump", it follows that the warrant did not extend to it, accepting as I do that at the time of that conversation the accused was not an associate of Michael Francis Munday and, certainly when the conversation commenced, he was not an associate of "Ski jump". On that assumption, and subject to subs(3), subs(1) would apply to the first conversation and evidence of the conversation could not be given by any person whose knowledge of it came about as a result of the use of the listening device. (I note that by s13, a reference to the giving of evidence of a private conversation that has come to the knowledge of a person as a result of the use of a listening device includes a reference to the production of a record of such a private conversation.) It is not altogether clear to me who such a person might be, but it is likely to include Constable Warrington. He gave evidence that he was "involved with" the use of the listening device with respect to that conversation and that he was responsible for "setting up" the equipment. My understanding of his evidence is that he was next to "Ski jump" at the time of the conversation and that as a result he could hear what "Ski jump" said and he could also hear some, but not all, of what the accused said. It would seem to follow that some of his knowledge of that conversation did not come about as a result of the use of the listening device, direct or indirect, and that to that extent, s14(1) does not prevent him from giving evidence of the conversation. The subsection does apply to those parts of the conversation of which his knowledge has come about as a result, direct or indirect, of the use of the listening device. Perhaps he gained the knowledge from listening to the recording or from reading a transcript of it. He may not produce in evidence the recording of those parts that came to his knowledge in that way.
Nevertheless, I would exercise the discretion to admit the evidence under subs(3) for a number of reasons. I will deal with them in due course, but will deal first with some other submissions that were advanced for the accused.
It was submitted that if I agree, which I do not, that under the Listening Devices Act, s14(1)(a), knowledge of the relevant conversations on 14 and 22 March came about as a result, direct or indirect, of the use of a listening device in contravention of s5, then the later conversations should be regarded as inadmissible under s14(1)(b), notwithstanding that recording or listening to those conversations was expressly authorised by the second or third warrants. It was submitted that evidence of the later conversations was obtained as a direct consequence of the conversations of 14 and 22 March so coming to the knowledge of police officers. I do not agree. If such knowledge was gained as a result of a breach of s5, the evidence of the later conversations might arguably be said to have been obtained as an indirect consequence of that knowledge being acquired by the police officers, but it is unnecessary to determine that. It is sufficient to say that it was not obtained as a direct consequence of that knowledge being acquired, as required by par14(1)(b).
A conspiracy involving the police
It was common ground that the activities of police officers that involved (inter alia) diving for and taking abalone, processing it, storing it and selling and delivering it to the accused's agent did not amount to breaches of the Living Marine Resources Management Act, and rules or regulations made under it, because the officers were exempt from those laws by virtue of the exemptions granted by the Minister under s11(1) of that Act. Thus, the officers were not acting in breach of laws that, for example, prohibited taking of undersize or excessive quantities of abalone, unlicensed taking and possession and sale of abalone and failing to complete documentation with respect to abalone taken or possessed. However, while Constable Hays did not breach those laws when he had possession of abalone and delivered it to Lee, because of the exemption, Lee acted in breach of the law when, on the State's case, he took delivery of the abalone, and possibly also the accused if Lee was his agent when he did so, for their possession was not exempted under the Act.
It was pointed out by counsel for the accused that "Ski jump" was not exempted from the provisions of that Act and it was submitted that even though the police officers, including Constable Hays, were so exempt, they were not exempt from the provisions of the Criminal Code. Upon that basis it was submitted that police officers committed the crime of conspiracy when they took part in an agreement which had as its object that Lee and the accused, not exempt from the Living Marine Resources Management Act, would have unlawful possession of abalone. It was also submitted that "Ski jump", who enjoyed no exemption under that Act, committed the crime of conspiracy.
Under the Criminal Code, s297(1)(c), a person who conspires with another to commit a crime is guilty of the crime of conspiracy. The object of the conspiracy must be the commission of a crime and not merely a summary offence. Thus, a conspiracy to commit an offence under the Living Marine Resources Management Act, s264, the section under which the accused is charged, will amount to the crime of conspiracy, because a s264 offence is an indictable offence and therefore a crime. See the definition of "crime" in the Criminal Code, s1. In other words, a conspiracy to commit the offence under s264 of having possession of fish with a value exceeding $5,000, without lawful excuse, amounts to the crime of conspiracy. On the other hand, if the object of the conspiracy is merely that a person shall have possession of fish not exceeding $5,000 in value, in contravention of the law, the crime of conspiracy would not be committed. The object of the conspiracy would be the commission of an offence under s262 of the Act, that of possession of fish in contravention of the Act, which is a summary offence and not a crime. Accordingly, on the face of the evidence before the Court, it appears that "Ski jump" and police officers did not commit the crime of conspiracy arising out of agreements to put Lee or the accused in possession of the abalone meat delivered to Lee on 26 March and 4 June 2002, for the value of the fish on each of those occasions did not exceed $5,000. However, the contrary appears to be the case concerning the abalone meat the subject of the three counts in the indictment, involving abalone meat delivered on 23 April, 21 May and 2 July, for on each occasion the value agreed to be delivered, and in fact delivered, exceeded $5,000, on the State's case.
Gallagher (1989) 44 A Crim R 256 is authority for the proposition that the police officers who were participants in such a conspiracy would be guilty of the crime of conspiracy, notwithstanding any exemption they may have had under the Living Marine Resources Management Act, with respect to their taking, possessing or otherwise dealing in the abalone in question. At 258, Grove J, with whom the other members of the New South Wales Court of Criminal Appeal agreed, accepted as a correct and applicable statement of the law a proposition advanced in the second edition of American Jurisprudence that "it is a generally accepted proposition that a person who is personally incapable of committing an offence may be guilty of conspiracy to commit the offence at least if one of his co-conspirators is capable of committing it". His Honour adopted R v Whitchurch (1890) 24 QBD 420.
The discretion under the Evidence Act, s138, and the Listening Devices Act, s14(3)
I return to the exercise of the discretion under the Listening Devices Act, s14(3), to admit evidence that would otherwise be inadmissible under subs(1). The accused also raised for determination the discretion in the Evidence Act 2001, s138, to exclude evidence improperly or illegally obtained. The same matters may be taken into account with regard to each of the discretions. The relevant provisions of s138 are:
"138 Discretion to exclude evidence improperly or illegally obtained
(1) Evidence that was obtained –
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law –
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2)...
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account –
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding, whether or not in a court, has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty, if any, of obtaining the evidence without impropriety or contravention of an Australian law.
It was submitted by counsel for the accused that the evidence of the conversations with the accused was obtained improperly, or in consequence of an impropriety, and in contravention and as a result of a contravention of the law. It was submitted that the impropriety was the entrapment of the accused by police officers and their agent, "Ski jump", by inducing the accused to commit offences against ss262 and 264. Counsel emphasised that the accused was not merely encouraged to commit the offences but was induced to do so by police actions. Counsel submitted that the contravention of the law was the unlawful conspiracies in which "Ski jump" and the police officers participated.
There is no substantive defence of entrapment in this country. Ridgeway v R (1995) 184 CLR 19. Nevertheless, on occasions courts have refused to admit evidence, applying either common law evidentiary rules of exclusion or statutory provisions such as 138(1), in circumstances where evidence of offending has been obtained by means of activities amounting to police entrapment. Counsel referred to a number of authorities and I have had regard to them all.
Considerable public benefit depended on the police being able to successfully conduct the Oakum operation. It was not aimed only at the accused. Its purpose included detecting and charging those involved in a network of associated individuals who were believed to be taking part in organised unlawful conduct in systematically and illegally taking abalone from State waters and exporting it from Tasmania. The network was difficult to infiltrate. The purpose of the police's operation included detecting and charging those who were unlawfully taking abalone, those to whom the abalone was being supplied and individuals from interstate who were receiving it. The purpose in supplying the accused with the abalone was not merely to charge him but also to detect and charge those who were dealing with him.
There is every reason to think that the accused willingly offended. He was not induced by the police to do so with any reticence on his behalf. He had previously purchased unlawful abalone from a poacher and had passed it on to an interstate source. There is no reason to think that he had resolved not to offend again or had considered not doing so. From the time "Ski jump" first approached him he willingly involved himself once again in illegal abalone. He negotiated a price. He initiated a number of the communications. He arranged for a person, Lee, who I infer was from interstate, to take delivery in Tasmania on about five occasions. He demonstrated that he had an intimate knowledge of the treatment and transportation of illicit abalone to the mainland. He suggested that "Ski jump" rent space and acquire a freezer to facilitate the deliveries of abalone. He provided plastic tubs with holes bored in them to assist what they were doing. He had rented storage space at the Coats Patons building which appears to have been used by him, or one of his associates, in the course of storing and moving illicit abalone until it was eventually taken out of the State. What the police did was not unfair to the accused in any real sense. The officers lawfully took and handled the abalone in accordance with their exemptions. I accept that the actions of some of the police officers amounted to a criminal conspiracy on three occasions to put Lee, and the accused, and possibly others, in unlawful possession of abalone exceeding $5,000 in value, but it was not suggested that the officers realised that they were acting in an unlawful way. To the contrary, there is every reason to think that the officers believed that by reason of their exemptions they were at all times acting lawfully. Further, I consider that the undercover infiltration by police of criminal or unlawful networks is, in a general sense, acceptable conduct. I reject the submission of the accused's counsel that the majority of Tasmanians would view the conduct of the police as improper and the prosecution as amounting to an abuse of process. In particular, I have no doubt that law abiding participants in the abalone industry would view the police activities as fully justified.
The evidence in question appears to have considerable probative value and will be exceedingly important at the trial. I am not aware that any impropriety or contravention of the law by police officers was inconsistent with the right of a person recognised by the International Covenant on Civil and Political Rights. See the Evidence Act, s138(3)(f). Counsel made no reference to that question. I infer that no proceeding has been or is likely to be taken in relation to any impropriety or contravention. See s138(3)(g). I am satisfied that the police generally experienced considerable difficulty in obtaining evidence by other means. See s138(3)(h).
The circumstances of the case cannot be compared with one where a person only offends because of police entrapment or inducement. The evidence established that the accused had offended before and was willing to do so again. For all of the above reasons I have determined that insofar as I have a discretion, it should be exercised in favour of the evidence of the conversations, in particular those that were recorded and listened to by means of a listening device, being admitted into evidence.
A defence based on a lawful excuse for possession
The prosecution must prove that any possession of abalone by the accused was without lawful excuse. That is an element of the offence under s264. It was submitted by the accused's counsel that he should be at liberty to assert by way of defence that he had a lawful excuse for possession in circumstances where the abalone were owned by the State and were lawfully taken, sold and delivered by representatives of the State, in accordance with the orders of exemption granted to the police. I reject the submission. There is nothing in the Living Marine Resources Management Act to suggest that the police had power or authority to put the accused in lawful possession of the abalone. On the basis of the evidence it may be inferred that the accused believed he was acquiring illicit abalone and that his possession would be unlawful. Further, although it is an element of an offence of possession under s262 that the fish in question must have been taken or possessed in contravention of the law, it is not an element of the offence under s264. Reliance was placed by the accused's counsel on a statement of Slicer J in R v Osborne (2003) 11 Tas R 295 at 300 that the principle that evidence obtained by means of entrapment procedures may be excluded where the commission of the crime was itself brought about by the conduct of officers of the State, "is at one level recognition that no crime had in fact been committed, irrespective of the state of mind of the person charged, since the events were instituted and controlled by an instrumentality of the state which sanctioned the events said to have created criminal conduct". With respect, I do not agree. In this country, the basis for the exclusion of such evidence in some cases has not been based on a suggestion that no offence had been committed. The High Court in Ridgeway (supra) rejected entrapment as a defence.
I hold that it is not open to the accused to defend the charges upon the basis that he had a lawful excuse for his possession of the abalone in question because it was supplied to him by police officers.
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