Te v The Queen

[1998] HCATrans 331

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M104 of 1997

B e t w e e n -

MENG KOK TE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 SEPTEMBER 1998, AT 10.11 AM

Copyright in the High Court of Australia

MR P.G. NASH, QC:   If the Court pleases, I appear with my learned friend, MR D.A. PERKINS, for the applicant.  (instructed by Kuek & Associates)  

MR J.D. McARDLE:   May it please the Court, I appear with my learned friend, MR J.B. SAUNDERS, for the respondent.  (instructed by the Office of Public Prosecutions (Victoria))

GUMMOW J:   Mr Nash.

MR NASH:   If the Court pleases, there was filed with the Registrar yesterday ‑ ‑ ‑

GUMMOW J:   There is an extension of time needed, is there not?

MR NASH:   Yes, your Honour.

GUMMOW J:   Is that opposed?

MR McARDLE:   No, your Honour.

GUMMOW J:   Yes, you can have the extension.

MR NASH:   If the Court pleases.

KIRBY J:   We received the supplementary submission.

GUMMOW J:   We have, as Justice Kirby says, the supplementary submission filed on the 10th.

MR NASH:   Yes.  Well, the supplementary submission in fact encapsulates everything that we wish to put to the Court today.  The essential issue for the Court in relation to special leave appears to us to be whether the Court of Appeal was correct in applying less stringent tests of construction and supervision to legislation which dispenses from the law than to search warrant legislation.

HAYNE J:   Does the case then come to the construction of the particular section 51 instrument that was issued?

MR NASH:   It comes in one sense, your Honour, and I can see where your Honour is leading me, with respect.

HAYNE J:   Nowhere at all.  I was simply asking you an innocent, open-ended question.

MR NASH: I am indebted to your Honour for that assurance. It does turn on the interpretation of section 51 and in so far as it turns on the interpretation of section 51, and no more, we concede there is not a special leave point in relation to the interpretation. There may be a special leave point in relation to miscarriage of justice.

HAYNE J:   But not simply the Act but the instrument that was issued under the Act?

MR NASH:   The Act and the instrument, but more specifically, your Honour, to the approach to be taken by the Court when one has effectively - and I am not going to recite to the Court what was said in Reg v Hayden and a number of other cases about it.

GUMMOW J:   But at page 49 of the application book at line 20 there is a reference by Justice Phillips to the trial judge’s statement that he would still not have excluded the evidence.

MR NASH:   With respect, your Honour, that does appear ‑ ‑ ‑

GUMMOW J:  And that would suggest this might not be a convenient vehicle, apart from everything else.

MR NASH:   What his Honour said was something slightly different.  The paraphrase is not, we would say, quite accurate and, more importantly, there was no argument of the discretion question and that appears from the trial judge’s own words.  I think it is at page ‑ ‑ ‑

HAYNE J:   At page 16 does his Honour not deal with Bunning v Cross and Ridgeway there?

MR NASH:   Yes, your Honour.

HAYNE J:   Lines 16 to 27.

MR NASH:  

In my view, although there might be some substance as a matter of general principle in the argument that instructions of the type contemplated by such legislation as s.51 should be -

I am looking at page 13, line 18.  I am sorry, your Honour, I have lost it.

HAYNE J:   It is at page ‑ ‑ ‑

MR NASH:   I am sorry, 16.  Can I take your Honour to the opening words of that paragraph:

I might say that, although Mr Grace did not direct submissions at the time of making his present submission as to the question of exclusion of evidence -

in other words, that was a matter that was not argued at all before the trial judge and ‑ ‑ ‑

KIRBY J:   But he goes on to say, effectively, that if there had been such submissions he would not, in the exercise of his discretion, have excluded the evidence on the basis that the conduct of police was so unfair as to affront public conscience.

MR NASH:   With respect, your Honour, he does not quite say that.  He says:

nothing else has been produced before me to say that a strong basis would exist to stay the proceedings in the exercise of my discretion -

In other words, what we had was a submission which was basically in relation to the illegality question.  No submission in relation to discretion, no evidence in relation to discretion, nothing has been produced before me and the trial judge says on what is before me at the moment I would not have exercised my discretion.

KIRBY J:   Is that discretion to stay the same as the discretion to reject evidence, although probative?

MR NASH:   No, your Honour, it is not, and the application, at that stage, was an application to stay.

KIRBY J:   But is not the same question involved, a stay because it would affront the sense of justice of the community, you will reject the evidence because, though probative, it would be an affront to the halls of justice to permit the evidence to be admitted.

MR NASH:   Yes, your Honour, the principles are the same.

KIRBY J:   So, it is the same issue and his Honour has addressed himself to it.

MR NASH: His Honour has addressed himself to it almost in vacuo, we would say, and with no point having been made in relation to the exercise - to the question of how he should exercise his discretion. The argument turned on what was section 51 about and the applicant’s counsel lost that argument.

GUMMOW J:   Well, what would the arguments have been on the Bunning v Cross discretion?  Why would discretion not have been exercised as the judge is suggesting?  The judge’s intuition - I put it no higher than that - seems a sound one.

MR NASH:   Well, his Honour did find specifically in relation to one of the offences that it was induced.  He did not find - this is in his sentencing - he did not find that the others were induced, but what one has, and this is a matter that his Honour did not take into account because his Honour could not take it into account because of the finding he had made.  How can one make a decision as to the degree of criminality of police behaviour when one has found there has been no criminality?  One of the factors to weigh in his Honour’s discretion was in fact missing.  Once I say this man has had authority to do what he has done ‑ ‑ ‑

KIRBY J:   Yes, but it is missing by law, by law made not by the Executive Government but by the Parliament.

MR NASH:   Our submission, your Honour, is it is missing by law made by the police officer himself because on the construction that was adopted by the Court of Appeal what one had was Parliament saying, “You may do certain acts on the instructions of an officer of the rank of Senior Sergeant or above.”  The Senior Sergeant says, “Go and investigate.”  Then who decides what criminal acts are to be committed?  The only person who has the decision making there is the police officer who is claiming the immunity.

KIRBY J:   Well, that may be a complaint against the Victorian Parliament for enacting such a provision but you can really not run the “peace, order and good government issue”, can you?

MR NASH: Well, with respect, your Honour, it is not a complaint against the Victorian Parliament, it is a complaint against the Court of Appeal and the construction they have placed on section 51. It is our submission that what section 51 does is say that, “If you commit an offence against the Act on instructions in writing, then you have immunity” not, “If you have instructions in writing to do something which happens to involve you in the commission of an offence against the Act”. There is a significant difference between the two and it emerges - if I can go to ‑ ‑ ‑

KIRBY J: Where is section 51 set out? Is it set out in any of the reasons?

MR NASH:   It is set out in the reasons of the Court of Appeal at the bottom of page 47.

HAYNE J:   42, I think.  Your numbering does not coincide with ours.

MR NASH:   I apologise to the Court.  That may explain why I have become so addled.  It is at the bottom of page 42:

KIRBY J:   I have it, now.

MR NASH:

No member of the police force acting under instructions given in writing in relation to a particular case.....shall be deemed to be an offender or accomplice in the commission of an offence against this ‑

KIRBY J:   So, you say, according to principle, it has to be given a narrow construction?

MR NASH:   Yes, your Honour.

KIRBY J:   One protective of the rule of law and that all it does is exempt the police officer from prosecution, it does not affect the unlawfulness of the police officer’s acts?

MR NASH:   We say that, but we also say, your Honour, that the instruction has to be to commit the act not an instruction to go and investigate.

HAYNE J:   How would that work in the real world of drug trafficking?

MR NASH:   Well, Mr Justice Phillips made the point, your Honour, that it would not work in the real world because you would not know what offences would be committed.  We say that in the real world of drug trafficking one could be instructed to go out and negotiate deals or to endeavour to negotiate deals with any of the following six people or people described or to buy or sell drugs to these people.  One would not need to specify by ‑ ‑ ‑

GUMMOW J:   What happened if one of them just happened to bring along a friend?

MR NASH:   Well, with respect, your Honour, inconvenience in the operation of the legislation is not a ground for undermining what we say is a fundamental aspect of the rule of law.  What this section does, this section should be ‑ ‑ ‑

KIRBY J:   I suppose it would be possible to frame an instruction that said, “Or any person in the company of that person” or something of that kind?

MR NASH:   Yes, your Honour.  I mean, it could ‑ ‑ ‑

KIRBY J:   And what you are objecting to is the generality of permitting the Executive Government, in effect, to have a carte blanche of compliance with the criminal law made by the Parliament?

MR NASH:   Yes, your Honour.  Really, I do not know that I can ‑ ‑ ‑

KIRBY J: Is there a provision similar to section 51 in other States for ‑ ‑ ‑

MR NASH:   There is a provision in South Australia which is different in form and there is the provision in the Commonwealth legislation which is also different in form.

KIRBY J:   Well, this is, again, Justice Hayne’s opening question.  The Victorian Court of Appeal should ordinarily be the place where construction of Victorian legislation will stop, they have given their authority to the construction and why should we get into what is effectively really just a local statute controlling local police?

MR NASH:   We say it is not merely a question of local statute because it is a question of the approach to be taken to the interpretation of dispensing legislation and that approach goes right across -not to the words - but goes to any dispensing legislation.  It is a serious matter for the rules of law ‑ ‑ ‑

KIRBY J:   But the court has dealt with this in Ridgeway and in Nicholas, has it not, and we have said what has to be said, that they have to be construed strictly and they do not give a complete immunity from a compliance with the law and we have been down that track twice in recent years.

MR NASH:   Well, with respect, your Honour, in Ridgeway there were two statements. One by, I think, Chief Justice Mason, Justices Deane and Dawson and one by Justice Brennan, as he then was, which said that if there were to be an exemption it was for the legislature to do it but Justice Brennan was the only one who made “warning” sounds - I think that would be the right word - in relation to these matters being properly policed, if such legislation were operative or were to come into existence. Section 51, of course, was there before this, but what we say, and it is a question of first impression, your Honour, and I can stand here until the red light goes, and I do not know that I can take it much further.

KIRBY J:   You have two other points, do you not, you have the duplicity point and the unfairness point?  Do you argue them or not?

MR NASH: I do not propose to argue the duplicity or unfairness points, your Honour. In relation to the special leave point on section 51, of course, we say that if this evidence was inadmissible there has then been a fundamental miscarriage of justice because it was on the basis of the evidence of Simon Lee, the police officer, and solely on that, effectively, that the applicant was convicted and that is the other leg to our special leave point.

KIRBY J: But if we were of the view, which seems to have been the view at least hinted by the primary judge, because he did not have to deal with it in the way the matter developed, and accepted by the Court of Appeal of Victoria, that at the end of the line the evidence would not be excluded on the discretion ;then really this is not a convenient vehicle to raise the issue of the specificity of section 51. What you would do, you would wait for a case which does look as if the evidence would be excluded, or might be excluded, whereas here it seems that that was the contrary view of the primary judge, to the extent that he turned his mind to it, and one could really understand why.

MR NASH: In the interim, your Honour, one has the decision of the Court of Appeal standing as a precedent, not only in relation to the interpretation of section 51 but for the proposition that the same strict rules that govern the interpretation of the search warrant legislation and the execution of search warrants does not apply to dispensing powers. That, logically, if that is not manifestly wrong, it should be followed in other States dealing with dispensing legislation of any kind. Our submission, your Honour, is that it is not a question just of what a section 51 means but how does one approach dispensing legislation.

KIRBY J:   Yes, but you say there is only a provision in South Australia and that is different.

MR NASH:   Yes, your Honour, and in the Commonwealth and that is different, also, but they are both - dispensing legislation is to be read broadly.  That is what the Court of Appeal has said.

KIRBY J:   Where did they say that?

GUMMOW J:   I do not think they went that far.

KIRBY J:   I would hope not.  How can you construe, broadly, the powers that are given to an executive officer of the Executive Government to depart from the law of the land?

MR NASH:   I am looking, your Honour, at - my numbering is different from the ‑ ‑ ‑

HAYNE J:   Well, tell us the page of the judgment?  We have that, too.

MR NASH:   It is page 8 of the judgment, lines 5 to 15, supplemented by the next paragraph, effectively.

KIRBY J: It says, “will be strictly construed”. I see, I am sorry. It goes on, “section 51 is different”. Do you say that means that their Honours were of the opinion that section 51 would not be strictly construed?

MR NASH:   Need not be strictly construed, yes, your Honour.  It is placed in contradistinction to ‑ ‑ ‑

KIRBY J:   It would take a lot to convince me that that was the proper approach to such a section.

MR NASH:   If the Court pleases, they are the submissions on behalf of the applicant.

GUMMOW J:   Yes.  Yes, Mr McArdle.

MR McARDLE:   May it please the Court.  Your Honours, cases involving search warrants, listening device warrants and similar are, as the Court of Appeal recognised, entirely different or present entirely different circumstance.

KIRBY J: Well, that is just analogous reasoning. We have got to concentrate on section 51.

MR McARDLE:   Yes.

GUMMOW J:   And on this instrument.

MR McARDLE:   Yes.  Well, then, in relation ‑ ‑ ‑

KIRBY J:   Did the Court of Appeal really say at page 8 of the judgment of Justice Phillips that section 51 should not be given a strict construction?

MR McARDLE:   I do not think that was what their Honours said.

KIRBY J:   I hope not, because it is a very large power to give, not, as is pointed out in the written submissions, to a court to dispense with but to an officer of the Executive Government to dispense with the law made by Parliament.

MR McARDLE:   Yes, and it has a history, a history in different circumstances.  An interesting history, because in Victoria, as the Court of Appeal noted, it went back to about 1906 or thereabouts, in which this sort of investigation was directed probably at either starting price bookmakers or illegal totalisers or something of that nature and the nature of the investigation was such that it was necessary to get whatever the equivalent in those days of an undercover agent into the area. 

KIRBY J:   Presumably, they would stand for sentence of about six months but we are talking here of people who are liable to sentence for life imprisonment or very long sentences, therefore one would think it would be given, just in terms of principle, a strict construction.

MR McARDLE:   Yes.  But, the main issue is the construction of the document itself, whether it was appropriate.  It related to an operation and, of course, the nature of this sort of investigation is that it could not condescend to too many particulars.  For example, it would not be possible to nominate the names of the persons with whom the transaction might take place or even the places or the times or the areas or any of those things because the nature of such an investigation reflected in the facts of this case is that the undercover agent tries to work his way into the combination towards the top and it was not until well into this operation he came across the applicant.

KIRBY J:   There would be another construction and that is that you take it step by step, you do not just get a blanket warrant at the beginning to do what you consider necessary or what develops to be necessary, that you seek fresh authorities.

MR McARDLE:   That would depend upon the nature of these sorts of investigations, how they are supervised and things of that nature and the Court is not supplied with material in relation to that but it is submitted that the Court would be very cautious and should be very cautious in taking that view of such an investigation because things often move very quickly and it may be the situation that the undercover operative is right in the middle of it very, very quickly.  On other occasions, he might not be.  Specific written instructions might not be available as the case develops or as the investigation develops.  And, from that point of view, it is, of course, as I would seek to show, different and in our contention quite different from other sorts of warrants.

KIRBY J:   But is it not wrong to say that it does not confer a power, it confers an immunity?

MR McARDLE:   Yes.

KIRBY J:   By conferring the immunity it is in effect conferring a power to act outside the law made by Parliament because people are restrained.  The purpose of the criminal law is to restrain from doing certain things.

MR McARDLE:   Yes, but it still creates an immunity from the consequences of taking part in these actions.

KIRBY J: I just question the two points at page 8 of Justice Phillips’ judgment where he says section 51 is different, ie, it does not have to be construed strictly and, secondly that it does not confer a power, it confers an immunity. I do not think there is a contradiction between those two notions.

MR McARDLE:   No.

KIRBY J:   And the point that is being made by Mr Nash is that if we leave this to stand, it becomes authority for that proposition in Victoria.

MR McARDLE:   Well, the expression “immunity”, I think, appears in the ‑ ‑ ‑

KIRBY J:   I am not doubting that it confers an immunity, that is its point, but by conferring the immunity, it confers, effectively, a power, because the constraints of the criminal law are removed.

MR McARDLE:   In certain defined circumstances in the document itself.  In this case, it was, of course, defined in terms of what was described as operation “Apex”.  This case, in fact, involved two operations, one called “Apex” and the other one called “Tremor”.  For the purposes of the argument, they were considered ‑ ‑ ‑

KIRBY J:   “Earth Tremor”, I think.

MR McARDLE:   I thought it was “Tremor”.

KIRBY J:   “Apex” and “Earth Tremor”.

MR McARDLE:   But in any event ‑ ‑ ‑

KIRBY J:   They do not become better or worse by reason of the appellation.

MR McARDLE:   I do not know.  I am not sure how these things are chosen, but, in any event, the appeal was run on the basis, really, of the first, that is Apex.  It was, apparently, defined, although I do not think it is part of the material before the Court, as to what that was all about.  But, again, it is the nature of these things, the investigator would not know where he was going.

KIRBY J:   It is not so much this case that concerns me, it is the principle that is then established for all cases.  A principle that, if it does not have to be construed strictly, you do not have to worry about it conferring power because it is giving an immunity.

MR McARDLE:   Well, that, it is submitted, reflects the legislation.

KIRBY J:   Well, it does not reflect the legislation as I read it.  However.  What do you say about the Bunning v Cross point?

MR McARDLE:   Your Honour, the admission of this evidence, assuming there is a deficiency, was almost inevitable, if for no other reason than these documents in a different case have been looked at and examined by the Court of Appeal in a case called Papoulias, which is referred to in the cases before the Court and, in fact, in the course of the voir dire, the documents, the section 51 certificates in Papoulias were brought to the attention of the trial judge.  They were examined in Papoulias, they survived that unscathed.  Approaching from a different point of view, what was wrong, what was unlawful, I ask rhetorically, in relation to what the police did on this occasion, in using the same documents, or the same form of documents?

KIRBY J:   Well, the suggestion is that, as I understand it, knowing that the applicant was himself involved in a trafficking offence, knowing that he had committed a serious crime, for their own purposes of Apex or Earth Tremor, they continued him in his life of crime, led him down the path of further offences and, thereby, exposed him to greater punishment.

MR McARDLE:   An examination of the evidence, as I recollect it, is that they did not - Mrs Le, who was the undercover operative, did not have contact with Te, I think, until well into the transaction and, of course, it is a proper purpose, it is submitted, for the investigator to work his way up the ladder and various stratagems are used to do that such as ‑ ‑ ‑

KIRBY J:   It does expose the accused to the risk of further offences and, therefore, further punishment at a later stage.

MR McARDLE:   Well, he does not have to commit those offences.

HAYNE J:   Can I just go back to your Papoulias point?  Do I understand it to be that, in weighing a Bunning v Cross discretion, account should be taken of the fact that the police had acted in accordance with what was then thought to be the law in this State as stated in Papoulias by the Full Court?

MR McARDLE:   Yes, and had been for some time.  Papoulias, I think, was decided in the late ’80s.  So, in those circumstances, it is submitted that it was as inevitable as anything can be, that the evidence would get in.

KIRBY J:   It was not specifically addressed because it did not have to be in the way the argument developed.  The argument was for a stay, not for the exclusion of the evidence.  It was at an early stage, not the trial stage, but you say the principles, or the considerations, would be very similar, if not identical.

MR McARDLE:   Yes, so far as one can predict these things with confidence, at all.  It would be inevitable the evidence would get in and in those circumstances, it is submitted that this is not an appropriate vehicle for special leave.  Now, that ruling, looking at the bottom of the transcript, was, I think, in August of 1995.  This case had a very bad history, as the Court would see from some of the comments ‑ ‑ ‑

KIRBY J:   It certainly has.

GUMMOW J:   Well, the Court was upset about that.

MR McARDLE:   Yes, well, so was the trial judge and the matter may well have been revisited.  In fact, by, I think, the end of 1995, or thereabouts, fresh counsel had come into the case and, in fact, there was a fresh presentment.  But the matter may well have been revisited.  But, again, at the risk of repeating myself, the admission of the evidence was inevitable in light of those considerations.

GUMMOW J:   Yes, thank you.

MR McARDLE:   Your Honours, I do not think there is anything further I can say.

GUMMOW J:   Yes, thank you, Mr McArdle.  Mr Nash, anything in reply?

MR NASH:   No, there is nothing I can add to the Court

GUMMOW J:   We will take a short adjournment.

AT 10.42 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.44 AM:

GUMMOW J: The Court should not be taken as necessarily accepting the construction placed by the Court of Appeal upon section 51 of the Drugs, Poisons and Controlled Substances Act 1981 of the State of Victoria. However, an appeal to this Court would turn upon the interpretation of a particular instrument made in exercise of the power conferred by section 51 and upon the application of the principles in Bunning v Cross and Ridgeway v The Queen.  In those respects, there are insufficient prospects of success to attract a grant of special leave and, accordingly, special leave is refused.

The Court will now adjourn to reconstitute.

AT 10.45 AM THE MATTER WAS CONCLUDED