Tu Phan (a Pseudonym) v The Queen; Jin Wu (a Pseudonym) v The Queen

[2020] HCATrans 186

[2020] HCATrans 186

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M50 of 2020

B e t w e e n -

TU PHAN (A PSEUDONYM)

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Melbourne  No M51 of 2020

B e t w e e n -

JIN WU (A PSEUDONYM)

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 NOVEMBER 2020, AT 12.53 PM

Copyright in the High Court of Australia

____________________

MR P.J. MORRISSEY, SC:   May it please the Court, I appear with MS C.A. BOSTON for the applicants.  Ms Boston is present but not on camera.  (instructed by Melasecca Kelly & Zayler)

MR L.K. CROWLEY, QC:   May it please the Court, I appear for the respondent in each case with MR D.P. HOLDING who is also present but not on camera.  (instructed by Commonwealth Director of Public Prosecutions)

BELL J:   Yes, Mr Morrissey.

MR MORRISSEY:   Your Honours, the key special leave question for us today is question No 2:  does Part 1AB of the Crimes Act affect and augment the exclusionary weight of the matters in section 138(3)(d), (g) and (h) of the Evidence Act and particularly in circumstances such as those of the current case.  Our contention is that the police do need guidance and incentive and encouragement to comply with the important scheme in Part 1AB.  Deterrence is a relevant – unusually relevant consideration in that and the trial courts need guidance if they are faced with applications under section 138 arising from breaches of Part 1AB as in this case.

So, the first part I would turn to, obviously welcoming any interruptions or questions that emerge, is the question of section 138(3)(g), that is the subsection that concerns deterrence, and the submissions here also capture what we have to say about the application of Part 1AB.  Subparagraph (g) is an important provision.  In Kadir and Grech at paragraph 16 the Court observed that:

Where an officer is likely to be dealt with in another forum for his or her misconduct, the need to exclude evidence as a deterrent is reduced. 

Now, there can be a danger of reducing deterrence to the status of an incantation, to use that comment from Ridgeway at paragraph 9, the “hollow and unavailing” statements.  Deterrence in 138(3)(g) focuses chiefly on the response to the breach in conduct.  Deterrence is not irrelevant where the breach is careless.  Analogy could be drawn with sentencing for negligent manslaughter or culpable driving.  What has been deterred in that setting is the carelessness. 

So, we have an initial contention at 138(3)(g) is not ameliorated by the absence of recklessness and we argue that deterrence applies particularly when considering Part1AB and it applies regardless of whether the failure to comply was reckless or careless.  We have described it as a goad to compliance, in our submissions, and I would briefly seek to amplify the indications within Part 1AB of that.

Part 1AB, firstly, features an internal authorisation process.  It places the authorising officer at the centre of the process.  There are clear signs of that…..  Section 15GI provides the authorising officer must not authorise unless he or she is satisfied of the matters set out in GI(2).  Preliminary to that, he or she can request additional information, and the application they receive must contain sufficient information and, indeed, they can only grant such an application after considering the application and applying those factors. 

Further, there is provision, and I will characterise it as anxious provision, for variation to be sought and granted, both formal variations and urgent variations under 15GP(3), and the process of authorising is substantially replicated in 15GQ.  In short, the authorising officer is at the centre, and a failure to engage that authorising process we characterise as serious.  Whatever the subjective excuse may be, persistence in the breach is serious, and recalcitrance in the breach is serious. 

Now, in this case, the submission in our outline is that her Honour erred and placed no weight, or insufficient weight, upon this factor.  The Court of Appeal at 65 found that her Honour considered 138(3)(g) to have very little relevance.  This accurately captures her Honour’s findings and this, we say, constitutes a failing to give sufficient weight.  Her Honour’s words do not disclose anything more than what we unfortunately characterise as the “hollow and unavailing” comment.

That is highlighted because her Honour’s factual findings were quite harsh.  We have characterised it as reflecting recalcitrance, but it suffices to say that her Honour found that there was no response by the police, no other proceedings, no reaction here.  In light of that, deterrence loomed large on the facts here, for this sustained breach.  Concerning the second major controlled operations authority, no excuse at all was offered. 

It is our argument that the Court of Appeal erred in three particulars in dealing with the way her Honour approached it.  The court misunderstood her Honour’s harsh factual findings.  The court took the view that her Honour had ameliorated that, but our submission is that, properly characterised, that is not how she saw it at all.  Her Honour simply said there was no response. 

Secondly, the court found that the breach was mitigated by the nature of the contraventions, and our submission is that carelessness needs to be deterred as much as any other conduct does.  Our submissions - so therefore, we are submitting that there has been a failure to have any or proper regard to subparagraph (g), and that that is an important ‑ ‑ ‑ 

BELL J:   Mr Morrissey, how does this not come down to an application that cavils with the weighing of the 138(3) factors?

MR MORRISSEY:   It does cavil with the weighing of them, your Honour.  That is correct. 

BELL J:   What is the point of principle then? 

MR MORRISSEY:   Your Honour, the point of principle is that in this case carelessness is in a sense a shield for non‑compliance with Part 1AB and whereas a weighing of those factors in 138 may proceed in a – perhaps one might say a normal case or a normal situation of policing, according to a fairly intuitive approach – where Part 1AB is at issue, the intersection between part 1AB and section 138 is important, because Part 1AB is unusual and imposes unusual priorities on the way in which those factors should be weighed. 

BELL J:   Part 1AB permits undercover operatives under the protection of a controlled operation authority to engage in conduct that would otherwise be unlawful.  When one comes to consider 138, to the extent that one is looking at evidence that was obtained in contravention of an Australian law, one is looking at evidence that – at the forthcoming trial, if there be a trial – it is intended that evidence will be adduced by the prosecution of undercover police officers engaged in a conspiracy to import a commercial quantity of a border controlled drug in the background, true it is, that the consideration of the failures that attended the authorisations are significant.  But I have some difficulty understanding where you develop a point of principle respecting carelessness having regard to subsection (3) and its language. 

MR MORRISSEY:   Well, your Honour, it is – the way the court approached the issue in this case, the way the court approached subparagraph (g) and the way the Court approached subparagraph (h) in this case was in error – there were clear, in my submission, errors.  That is separate from the point that we seek to mount about the so‑called impugned finding.  With respect to (3)(g) there appears to have been no relevance given to a statutory consideration that had to be given weight and our contention is that none was given to it. 

The reason why that error was made is because there has been an error of principle made concerning how Part 1AB applies – Part 1AB throws into special and sharp relief subparagraph(g), deterrence.  As to subparagraph (h), if the Court pleases, the second major controlled authority is the subject of a clear and straightforward error. 

In this case her Honour said that the difficulty of eliciting that evidence, or the difficulty of obtaining that evidence without a contravention of Australian law favoured admission.  The Court of Appeal, at paragraph 122 found no error with that, and that is just a straightforward error, both the principle – well, it is a straightforward error.  We have mounted an argument about that at 128, and the respondents have addressed that as best – as they see fit at 35 and do not seem to cavil with the existence of that error. 

BELL J:   But, Mr Morrissey ‑ ‑ ‑

MR MORRISSEY:   I apologise, your Honour, something happened there. 

BELL J:   I am sorry.  Mr Morrissey, can I just take this up with you, respecting the factor (h) error?  In Kadir, one was dealing with deliberate disregard of the law and the Court pointed out, in those circumstances, the fact that it would have been difficult to obtain the evidence without contravening Australian law did not favour admission.  But, equally, the Court pointed out in an instance where the conduct of the officers is not deliberate or reckless, the factor (h) is likely to be a neutral consideration.

MR MORRISSEY:   Yes. 

BELL J:   So, what I am pointing out to you, Mr Morrissey, is, in the overall weighting of these factors, one might have thought any consideration of factor (h) did not loom as large as some of the other considerations, having regard to the finding that the conduct of the officers was neither wilful nor deliberate.

MR MORRISSEY:   Your Honour, that is an important point of principle when you are considering breaches of Part 1AB because our submission here is that, first of all, Kadir leaves open that gap.  Kadir, obviously, in situations where there is recklessness or deliberate conduct – that will favour exclusion – but where there is no recklessness, it is said that it is likely to be neutral and the Court doubtless, advisedly, left that gap of likely to be neutral rather than saying it will always be neutral. 

Part 1AB provides the setting in which that gap is to be exploited and is to be given play because here what you have is a scheme where the police are required to comply, but the scheme is set up to require compliance and it, in its own terms, demands anxious ongoing compliance and monitoring.  It has both of those things – the ongoing quality of the monitoring that is sought is important. 

In that setting, therefore, the absence of recklessness may mask – may tend to mask a genuine egregious issue – and our contention is that that is what occurred here.  In that setting, a breach of Part 1AB may be careless – it may not be reckless.  Her Honour made the finding, in this case – it is not traduced here – that it was not reckless. 

But our submission is that the absence of recklessness is of vastly reduced significance here because Part 1AB requires that ongoing advertence.  If that is right, your Honours – and there must be situations where something short of actual recklessness will still require that subparagraph (h) indicates exclusion, that is the case here, in our submission. 

That is an important point of principle this Court can give guidance on.  It should be made clear that it seems that her Honour gave the ruling before Kadir was handed down.  But the Court of Appeal has found no error – and there is an error.  Her Honour found that it was in favour of admitting that this is one that may well have determined the outcome or, at least, is capable of having done so.  That is at page 93 of the application book, your Honour, where her Honour makes that finding.

In our submission, at least as far as the second major controlled authority is concerned, our contention is that at the end her Honour’s errors and the Court of Appeal’s errors in relation to (g) and (h), if corrected, would tend to compel the opposite outcome.  The Court of Appeal in finding no error is an intermediate court which is giving expression to that…..error.  As a matter of general principle, this Court can give guidance on how those factors ‑ ‑ ‑

KEANE J:   Mr Morrissey, we do not write essays about all the possibilities that might arise in terms - when you say we can give guidance, it is dealing with concrete cases that raise the question.  We do not speculate about possibilities and gradations and such like.  The difficulty here is that what is presented to us is a case where there is a dispute about the weight accorded to relevant considerations.

MR MORRISSEY:   Well, in responding - in answering as I was, I was endeavouring to respond to her Honour’s question concerning the general application and what we are seeking to establish here is how these factors, in section 138, may operate in the context where there has been carelessness of an ongoing kind demonstrated.

That is a matter of principle, and it is directly relevant here because – and it is not an abstract essay that is being sought today, your Honour, but simply an application as to how this Court should regard the ongoing – and it is our argument – egregious breach which we have expressed in the special leave question, falls short of recklessness but requires a careful consideration of how one regards subparagraph (g) and subparagraph (h) in that light, because otherwise there may be a double or triple counting of the absence of recklessness in this setting.

Where you have a scheme – which is not properly regarded – seldom, indeed, will recklessness be established – or far less deliberate misfeasance.  But, nevertheless, an ongoing failure, such as the kind that is established here, has led to the persistence of police in illegal conduct over many weeks.  The explanation offered is that an honest mistake was made by the principal law enforcement officer. 

So, your Honour, what we termed as “recalcitrance” earlier on, is an important matter because whilst we appreciate that you are not being asked to deal with abstract controversies in the future, likewise, the particular dispute here should have some general application.  But, here, it would have.  If the Court were to uphold or consider the arguments that we put, then that is a matter which would resolve this case, or has the capacity to resolve this case, and also be of general application and general use.

The effect of deterrence, here, is central, really.  I think we have said that already.  Your Honour, we adopt what we had to say about the impugned finding.  That impacts upon part of the argument we have in relation to section 138(3)(h) – in particular, the first major controlled authority – and is central to the finding in our criticism of the findings made in relation to subparagraph (d). 

With respect to that, to use an American phrase, it is getting into the weeds too much to discuss the evidence of it.  We adopt the outline that we have.  But what we would submit is there is a serious issue for the Court to consider because, on the evidence we have set out there, it simply was not open to the Court – either the Court of Appeal or her Honour – to make the findings that she did.

Correcting an erroneous outcome is an interest of this Court.  In my submission, here – at least in respect to subparagraph (8) – there is the plainest error.  It is on the face of a record by an intermediate court right now and that does require correction with respect to the second major control operation – whatever one makes of the submissions about the first one.  Your Honours, those are the submissions.

BELL J:   Yes, thank you, Mr Morrissey.  We do not need to hear from you, thank you, Mr Crowley.

MR CROWLEY:   If it please the Court.

BELL J:   We are not persuaded that the application raises any issue of principle.  Moreover, in our opinion, there are insufficient prospects that an appeal would succeed to warrant the grant of special leave.  Special leave is refused.

MR CROWLEY:   If the Court pleases.

BELL J:   The Court will now adjourn to 2.00 pm.

AT 1.14 PM THE MATTERS WERE CONCLUDED