Webster v The Queen [No 4] - [2013] WASC 479

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: WEBSTER -v- THE QUEEN [No 4] [2013] WASC 479

CORAM: JENKINS J

HEARD: 24 OCTOBER 2013

DELIVERED : 13 NOVEMBER 2013

PUBLISHED : 14 FEBRUARY 2014

FILE NO/S: INS 26 of 2012

BETWEEN: JAMES WEBSTER
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Offender's application for stay of convictions before sentence - Claim for public interest immunity by Crown witness called by offender to give evidence at hearing of application - Favourable answers over which privilege claimed would not enable offender to obtain a stay of convictions - No basis for a stay being granted

Legislation:

Crimes Act 1914 (Cth), s 15GI(1), pt 1AB
Criminal Procedure Act 2004 (WA), s 90, s 98
Customs Act 1901 (Cth)

Result:

Claim for public interest immunity upheld
Application for stay dismissed

Category: B

Representation:

Counsel:

Applicant:     Mr D J McKenzie
Respondent:     Ms R V C Fogliani
The Commissioner of
the Australian Federal
Police:     Ms W M Endebrock Brown

Solicitors:

Applicant:     David McKenzie Legal Pty Ltd
Respondent:     Director of Public Prosecutions (Cth)
The Commissioner of
the Australian Federal
Police:     Australian Government Solicitor

Case(s) referred to in judgment(s):

Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Nelson v Haynes [2003] WASCA 73; (2003) 27 WAR 154
Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19
Webster v The Queen [No 2] [2013] WASC 73

JENKINS J:
(These reasons were delivered orally and have been edited from transcript)

Application for stay - claim for public interest immunity

The applicant, James Webster, applied for a stay of criminal charges brought against him by the Crown in right of the Commonwealth. In the course of the hearing of the application Mr Webster called Phillip John Cormack, a federal agent with the Australian Federal Police (AFP) to give evidence. During the course of Mr Cormack's evidence he declined to answer a number of questions on the grounds of public interest immunity. These are my reasons for allowing that claim in respect of each of the answers which Mr Cormack declined to give. As will become clear the reasons also mean that the application for a stay must fail.

Background

The background to this matter is set out in the decision of Hall J, in respect of Mr Webster’s application to withdraw his pleas of guilty to the same criminal charges: Webster v The Queen [No 2] [2013] WASC 73. I will not repeat that background, but Hall J's decision should be read in conjunction with these reasons.
On 3 April 2013 Mr Webster's sentencing was adjourned pending his appeal against Hall J's decision to refuse his application to withdraw his pleas of guilty to his charges. By letter dated 8 May 2013 Mr Webster sought consideration of his application for a permanent stay. He had made the application for a stay on 21 January 2013 but had not taken steps to have it heard whilst his parallel application to withdraw his pleas of guilty was pending.
On 12 June 2013 Mr Webster advised the court that his appeal against Hall J's decision had been discontinued but that he maintained his application for a stay of the charges. On that date, Mr Webster's application to stay the prosecution was set down for hearing. Mr Webster has been remanded in custody at all times.
The parties have agreed a set of facts, which I incorporate into these reasons.

The claim for public interest immunity

The questions which Mr Cormack declined to answer on the ground of public interest immunity (the questions) are as follows:
1.Does [Frank Olomi] have any connection to this operation? In other words, is he employed in this operation?
2.When you commenced work for the operation did you believe that [Frank Olomi] had met with Mr Webster at the beginning of October 2010?
3.Was there also an undercover operative called Monica Driver?
4.Did you ever give an instruction to Monica Driver to refer to Rob as Mr Big?
5.Who is Monica Driver?
6.When you became involved in this operation, did you believe that Monica Driver had met with James Webster?
7.And further to that did you believe that Monica Driver had set up a meeting between James Webster and Rob?
8The person named Monica Driver, is that her real name?
9.Is there any authority that relates to an undercover operative called Monica Driver?
The most favourable answers which Mr Webster would hope to receive to the questions are to the effect that Frank Olomi was a civilian who was acting on behalf of the AFP at all material times and that Monica Driver was an AFP agent or was working on behalf of the AFP in some capacity. Further, that APAC Distribution was a business established solely for the purpose of the AFP conducting the operation against Mr Webster. It is not in dispute that Ms Driver is the person registered as carrying on the business known as APAC Distribution.

Mr Webster's affidavit in support of the application for a stay

Mr Webster has deposed that because he, Mr Webster, owed Mr Olomi money and because he was 'more refined' than Mr Olomi, in October 2010 Mr Olomi asked Mr Webster to help him get in contact with a 'Mr Big' in illicit drug trafficking. Further, that Mr Olomi was acting at the behest of the AFP when he told Mr Webster that the purpose of Mr Webster getting in touch with 'Mr Big' was to establish a relationship with 'Mr Big' so that Mr Olomi could 'move up the ladder in drug circles'. Mr Webster has deposed that it was then agreed between he and Mr Olomi that the ruse that Mr Webster would use to establish a relationship with 'Mr Big' would be to tell 'Mr Big' that Mr Webster could get cocaine shipped to Australia. Mr Webster says that Mr Olomi told him that if the ruse succeeded and he (Mr Webster) established a relationship with 'Mr Big', 'Mr Big' would 'let us in on something else', Mr Olomi would wipe his debt and would be in a position to look after him (Mr Webster). Mr Webster has deposed that because he owed Mr Olomi money he felt compelled to help him.
Mr Webster has deposed that Mr Olomi gave him the phone number of Ms Driver, who was supposed to work for 'Mr Big'. Mr Olomi told him that they should contact her immediately. Mr Webster says that he and Mr Olomi then drove to a phone box and that Mr Olomi was standing next to him when he called the given number and spoke with the person who claimed to be Ms Driver. He deposed that after that day, he arranged a new phone number for Ms Driver to contact him on. Mr Webster then spoke to her about two weeks later and arranged a meeting with her at a restaurant. Mr Webster says that the night before the planned meeting he received a text message from Mr Olomi, asking him to meet with Ms Driver by himself, as Mr Olomi's daughter was ill. Consequently, he met with Ms Driver. She told him that she worked for 'Mr Big', who the parties agree was a person who Mr Webster subsequently met called 'Rob', who was, unbeknownst at that time to Mr Webster, an undercover AFP agent. Hereinafter I will refer to the undercover agent as Rob.
Mr Webster said that Rob rang him two or three weeks later and that he then met with him. Mr Webster deposed that Rob told him that his company was called APAC Distribution. The remainder of the relevant facts are contained in the set of agreed facts (attached).

Mr Cormack's evidence

During Mr Cormack's evidence he said that he was the investigating officer in respect of this matter. He said that on 28 October 2010 he commenced an operation investigating the importation of cocaine into Australia, which was being organised by Mr Webster. He denied that the operation involving Mr Webster commenced before that date. I note that in Mr Webster's affidavit of 16 August 2013 he said that it was at the beginning of October 2010 that Mr Olomi first spoke to him about getting in contact with 'Mr Big'.
In cross‑examination Mr Cormack produced the major controlled operation authorities granted under the Crimes Act 1914 (Cth) s 15GI(1), in respect of the operation against Mr Webster.
The first authority was granted on 25 November 2010 and ceased to be in force on 24 February 2011. It related to an investigation targeting the activities of Mr Webster in respect of the importation of a commercial quantity of cocaine. The authority authorised the conduct of a major controlled operation involving the delivery of 'the fully inert substance'. It also authorised the assignment of AFP undercover operatives to engage in discussions, communications and arrangements with Mr Webster and unknown persons involved in the alleged illegal activity regarding the importation of border controlled drugs in accordance with the provisions of the Crimes Act pt 1AB. The authorisation permitted a list of named AFP agents to be involved in the operation. In addition, it authorised an undercover operative (UCO) who was identified only by a number to be involved in the operation. It is conceded that the UCO is the person known as 'Rob'. There is a further name which has been redacted in the authority. The authority stated that there 'are no civilian participants involved in the major controlled operation'. A formal variation of the authority was granted on 22 February 2011, which extended the period of the operation until 24 May 2011.
A further formal variation was issued on 19 May 2011, and it ceased to be in effect on 24 May 2011. This variation authorised Rob to engage in conversations with Mr Webster or any of his associates in relation to the supplying of drugs to Mr Webster or to any associates, to deliver an inert substance to Mr Webster or his associates, to receive a payment for the inert substance and to provide Mr Webster or any of his associates with a sample of drugs.
A further formal variation was granted on 24 May 2011 and it extended the period of operation until 24 August 2011. Finally, a formal variation was granted on 26 July 2011, which authorised the use of an additional AFP UCO to engage in conversations with Mr Webster or any of his associates in relation to the supplying of drugs to Mr Webster or any associates, to deliver an inert substance to Mr Webster or his associates, to receive a payment for the inert substance and to provide Mr Webster or any of his associates with a sample of drugs.
Mr Cormack said that APAC distribution had no relevance to the investigation. I note that Mr Webster does not say that he did a business name search or any other inquiry to establish the bona fides of APAC Distribution at the time the operation was ongoing.
After Mr Cormack concluded his evidence I adjourned the application for a stay of the charges against Mr Webster, so that the Commissioner of the AFP could file affidavits and written submissions in respect of the claim for public interest immunity. In pursuance of the claim, the Commissioner filed an open affidavit of Kevin Zuccato, an Assistant Commissioner with the AFP and the National Manager Intelligence. The Commissioner also filed a closed, or sealed, affidavit.
When the matter next came on for hearing I advised the parties that I had decided not to read the closed affidavit until Mr Webster had satisfied me that it was likely that favourable answers to the questions would enable him to obtain a stay of the charges. I gave oral reasons for that decision. In essence, I had concluded that unless Mr Webster satisfied me that favourable answers to the questions may substantially assist him to obtain a stay, the claim to public interest immunity must succeed. There would be no utility in me reading the closed affidavit.

The parties submissions

Mr Webster says that favourable answers to the questions will assist him to prove that there has been an abuse of process, which would justify a stay of the charges. The abuse of process he asserts is that the AFP operation against him involved improper and illegal conduct by Mr Olomi, Ms Driver and UCO's, because their conduct induced him to commit the offences to which he has pleaded guilty.
Mr Webster submits that the process of using Mr Olomi to bring him (Mr Webster) into the operation was the commencement of drawing Mr Webster into the web in which he would be entrapped. Mr Webster's debt to Mr Olomi was something which Mr Olomi used to get Mr Webster to do what he wanted and to contact 'Mr Big', otherwise known as 'Rob'. Further, Mr Olomi's introduction of Mr Webster to Ms Driver gave Ms Driver legitimacy as someone involved in the illicit drug trade. Similarly, using Ms Driver as a middle person between Mr Webster and Rob gave Rob legitimacy, as a person involved in the illicit drug trade. Mr Webster submits that it was a chain of inducements which resulted in him trusting that Rob was a powerful person in the illicit drug trafficking industry and a person with whom he could safely engage in drug trafficking or discussions about it.
In respect of APAC Distribution, Mr Webster submits that having an apparently, legitimately, registered business name which Rob used also assisted to give Rob legitimacy as a bona fide person and drug trafficker.
Mr Webster's argument as to how the answers to the questions could assist him to obtain a stay of the charges also depends on a further submission that if he had not pleaded guilty to the charges he may have been able to successfully object to the admissibility of some of the prosecution's evidence on the basis that he was induced by Rob to commit the offences or he was induced by the conduct of Mr Olomi and Ms Driver, both of whom he alleges were AFP agents or acting on behalf of the AFP, to enter into illegal transactions with Rob. Thus, the prosecution would have been unsuccessful. Alternatively, if he had pleaded not guilty to the charges he submits he would have been successful in obtaining a stay of the charges against him on the same basis. Either or both of these propositions are now said to justify me staying the prosecution.
The Crown submits that Mr Webster's application for a stay of the charges can never succeed on the basis of his allegations of illegal and/or improper conduct because his pleas of guilty to the charges were an acceptance by him of all of the essential elements of the offences. In effect, the Crown says that it is too late for Mr Webster to object to any of the evidence which the Crown may have led to prove the charges and too late for him to obtain a stay of the prosecution.
It says that an accused may enter a plea of guilty to a charge which they or another may think could never have been proved against them. That is an accused's prerogative and a conviction entered after such a plea cannot be stayed simply because the offender or a judge thinks that if a plea of not guilty had been entered the charge could never have been proved.
The Crown also disputes that any of its evidence would have been inadmissible against Mr Webster if he had pleaded not guilty and the charges had gone to trial. It says that Mr Webster was not induced by the words or actions of Rob to commit the offences. It says that even assuming that Mr Olomi and Ms Driver were acting as the AFP's agents or on behalf of the AFP at the relevant times, nothing they said or did induced Mr Webster to commit these offences.
The Crown says that if Mr Olomi's and Ms Driver's words or actions induced Mr Webster to believe that Rob was a bona fide, illicit drug trafficker, that is not the same as saying that they induced him to commit a criminal offence he would not have otherwise committed. The Crown submits that engendering trust is not an inducement to commit a criminal offence.
The Commissioner of the AFP, in essence, agrees with these submissions and for those reasons says that the answers to the questions could not and cannot assist Mr Webster to obtain a stay of these charges.
In respect of APAC Distribution the Crown says that APAC Distribution played no role in the offences. It also points out that Mr Webster did not do a business name search for APAC Distribution until long after he was charged with these offences. So that any legitimacy which APAC Distribution had from being a registered name, or which Ms Driver may have had as a result of being the person who was registered as carrying on a business in that name, did not impact on Mr Webster's decision to commit these offences.

The law

Mr Webster asks me to exercise the discretion in the Criminal Procedure Act 2004 (WA) to stay the prosecution of the charges against him. Section 90 states:
(1)A superior to which an accused is committed on a charge or in which an accused is indicted on a charge may at any time order that the prosecution of the charge be stayed permanently, if it is in the interests of justice to do so.
(2)On making such an order the court –
...
(b)may discharge the accused from the charge; and
(c)may make any orders it thinks fit, including orders as to bail and orders under Schedule 4, to ensure the accused and any witness are amenable to justice until -
(i)the time for appealing against the stay order has expired; and
(ii)any appeal against the stay order is concluded.
Mr Webster says that the principles in Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 justify me staying the prosecution of the charges if there is evidence that the AFP or its agents induced him to commit the offences by improper and/or illegal conduct.
Mr Ridgeway pleaded not guilty but was convicted under Commonwealth law of possession of a prohibited import, namely heroin. Mr Ridgeway had initiated and arranged for the importation through a registered informant with an overseas police force. The heroin had been imported into Australia with the cooperation of the AFP and the Australian Customs Service so that Mr Ridgeway could be arrested in possession of it. It was conceded by the prosecution that the law enforcement officers who had facilitated the importation of the heroin into Australia had breached the Customs Act 1901 (Cth). At the time that the operation against Mr Ridgeway was conducted, the AFP was not able to obtain major controlled operation authorities. The Crimes Act was not amended until after the decision in Ridgeway to enable that to occur.
Mr Ridgeway was unsuccessful in persuading the trial judge to exercise his discretion to exclude the evidence of the illegal importation of the heroin. His appeal to the Supreme Court of South Australia was unsuccessful. On appeal to the High Court, Mr Ridgeway submitted that the evidence of the illegal importation into Australia ought to have been excluded in the exercise of the discretion to exclude evidence on the grounds of public policy, because it had been illegally imported. Alternatively, he contended that he had a substantive defence of entrapment to the charges. Thirdly, he contended that the prosecution was an abuse of process because of the illegal importation, and the judge ought to have permanently stayed the proceedings.
The High Court quashed Mr Ridgeway's conviction and, by a majority decision, the prosecution was stayed. It is, of course, not open to me to quash the convictions which I entered in respect of these charges against Mr Webster. Further, Mr Webster's application to withdraw his pleas of guilty has been denied.
Each of the judges of the High Court in Ridgeway held that in Australia there is no substantive defence of entrapment.
The plurality (Mason CJ, Deane and Dawson JJ), found that a trial judge possesses a discretion to exclude, on public policy grounds, evidence of an offence, or of an element of an offence, in circumstances where its commission has been procured by unlawful conduct on behalf of law enforcement officers. This discretion is to be contrasted with the discretion to exclude particular evidence because it is unlawfully obtained (31, 38).

The plurality said that it was unnecessary for them to determine whether the discretion to exclude evidence extended to circumstances where a criminal offence has been induced by improper, though not unlawful, conduct on behalf of the authorities. Nevertheless, they indicated that they were of the view that it did so. Their Honours said:
[C]ircumstances can conceivably exist in which a law enforcement officer intentionally brings about the opportunity for the commission of a criminal offence by conduct which is not criminal but which is quite inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement. Extreme cases of creating circumstances of temptation under which a vulnerable but otherwise law-abiding citizen commits an offence of a kind which (so far as the police are concerned) he or she otherwise might not have committed provide possible examples. As the Supreme Court of Canada pointed out in R v Mack (1988) 44 CCC (3d) 513 at 541, 'there are inherent limits on the power of the state to manipulate people and events for the purpose of attaining the specific objective of obtaining convictions'. The rationale of the discretion requires that it extend to cases where those 'inherent limits' are exceeded (36).
In respect of the discretion to exclude evidence where a criminal offence has been induced by improper conduct on behalf of an investigative authority, the plurality said:
The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity. It is neither practicable nor desirable to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community. A finding that law enforcement officers have engaged in such clearly improper conduct will not, of course, suffice of itself to give rise to the discretion to exclude evidence of the alleged offences or of an element of it. As with the case of illegal conduct, the discretion will only arise if the conduct has procured the commission of the offence with which the accused is charged (37).
The plurality decided that a prosecution is not an abuse of process, which would justify a stay, merely because the offence was procured by illegal conduct. However, the plurality said that the appropriate ultimate relief in a case, where the commission of the charged offence had been procured by illegal police conduct, may well be a permanent stay of further proceedings. Their Honours said that ordinarily the question whether evidence of an offence or an element of the offence should be excluded pursuant to the discretion to exclude evidence on entrapment grounds should be raised and determined in the course of a preliminary hearing. If such evidence was excluded then the continuation of the prosecution, if it would necessarily fail, would be oppressive and vexatious and that such continuation would be grounds for a permanent stay of proceedings.
I digress to note that the 'ordinary circumstances' referred to by the plurality will not arise in Western Australia because of the absence of preliminary hearings. Ordinarily, in Western Australia the admissibility of such evidence would be determined at a directions hearing after committal pursuant to the Criminal Procedure Act s 98. A directions hearing was not held in this case because Mr Webster pleaded guilty to the charges.
The plurality then found that the trial judge, on public policy grounds, should have excluded all evidence in Ridgeway intending to show that the heroin supplied to Mr Ridgeway had been imported illegally. Accordingly the case against Mr Ridgeway for possession of imported drugs should have been permanently stayed, because without that evidence, it would inevitably fail.
In the context of this case it is important to note two matters. First, the plurality acknowledged that deceit and infiltration may be of particular importance in the effective investigation and punishment of trafficking in illegal drugs. Their Honours said that if it was desirable that law enforcement officers engage in such conduct, the legislature had to legalise it. In the absence of such a legislative regime, their Honours said that the courts have no choice but to set their faces firmly against grave criminality on the part of a law enforcement officer (43 – 44). These comments are particularly relevant because the Commonwealth legislature has, since Ridgeway was decided, taken steps to legalise the 'deceit and infiltration' of which the plurality spoke, by enacting the Crimes Act pt 1AB. The AFP operation against Mr Webster was authorised in accordance with pt 1AB, although that authorisation did not permit actions which would induce Mr Webster to commit a criminal offence.
The second matter which the plurality mentioned was that a relevant matter in deciding to stay the prosecution against Mr Ridgeway was that Mr Ridgeway's possession of the heroin at the time he was apprehended was arguably a serious offence against the laws of South Australia, of which illegal importation was not an element (43). The staying of the Commonwealth proceedings against Mr Ridgeway did not preclude the institution of proceedings for such a State offence. Their Honours said that the fact that illegal importation would not be an element of the charged offence would greatly reduce the weight of the considerations favouring an exclusion of the evidence (44). Thus, the plurality was not of the view that any illegal conduct associated with the drugs in question would prevent a related prosecution, which nevertheless relied on evidence which flowed from illegal conduct, succeeding.
In a separate judgment, Brennan J said that it was not an abuse of process to prosecute an offender who has been induced to commit an offence in order to procure his conviction. Neither did his Honour accept that the prosecution of an offender entrapped into the commission of an offence was an abuse of process enlivening a judicial discretion to stay the prosecution (48). Brennan J, however, accepted that the evidence of unlawful conduct of a law enforcement officer may enliven a discretion to exclude evidence on the grounds of unlawfulness and unfairness (49).
Brennan J said that if Ridgeway's case involved no more than an objection to the admission of evidence against Mr Ridgeway that he had taken possession of the heroin from the law enforcement officers and, therefore, that he was an 'unwary criminal', there would be sufficient to warrant a refusal by the High Court to overrule a discretionary decision to admit the evidence against Mr Ridgeway. His Honour noted that evidence that had been unlawfully obtained was not necessarily inadmissible (50).
Nevertheless, his Honour ruled that in 'rare cases', the discretion to exclude evidence which had been unlawfully obtained may be exercised in circumstances where an entrapped offender was an unwary criminal. This was because the conduct engaged in by the law enforcement agency may be so grave that the conviction of the offender had been brought at 'too high a price' if the evidence obtained by the illegal conduct were admitted. Thus, the evidence would be excluded on public policy grounds rather than because of unfairness to the accused (50).
His Honour held that the case of Ridgeway was a case in point. Brennan J noted that Ridgeway was not a case where the evidence related to the conduct of the offender, it was a case where the offender was charged by reason, amongst other things, of the criminal conduct of an agent of the AFP. Thus, his Honour held that all evidence of the illegal importation ought to have been excluded by the trial judge (53).
His Honour said that if all evidence of the illegal importation had been excluded, the prosecution could not have succeeded. Either the Crown would have entered a nolle prosequi or there would have been a verdict of acquittal by direction. His Honour, thus, considered that the appropriate order was that the conviction be quashed and a verdict of acquittal entered. It is to be noted that his Honour did not consider that it was appropriate to stay the prosecution.
Brennan J noted, as the plurality had, that this result may be unsatisfactory from the viewpoint of law enforcement. However, like the plurality, Brennan J was of the view that the solution was for the legislature to legalise controlled operations on behalf of law enforcement officers. He said that such provisions could not be prescribed by the courts.
Toohey J, also in a separate judgment, accepted that if an accused had been entrapped there had been an abuse of process which would warrant a court staying the relevant prosecution. However, his Honour concluded that Mr Ridgeway had failed to discharge the onus on him to show that he had been entrapped. Toohey J regarded Mr Ridgeway as an 'unwary criminal' rather than an 'unwary innocent' (58).
Further, Toohey J was not of the view that the trial judge should have, or that the High Court should, stay the prosecution against Mr Ridgeway on the grounds that it was an abuse of process because of the illegal conduct of the law enforcement officers. His Honour concluded that to proceed with the charge against Mr Ridgeway was not improper, and the continuation of the charge against Mr Ridgeway would not have amounted to the trial court sanctioning the unlawful conduct of the law enforcement officers.
Despite these conclusions, his Honour was of the view that if the discretion to exclude evidence obtained by unlawful means, in particular the evidence showing that the heroin was a prohibited import, was exercised that evidence should have been excluded. This was not on the basis of fairness to Mr Ridgeway but on the basis of public policy (64).
Given that if that evidence was excluded there was not sufficient evidence to convict Mr Ridgeway of the offence charged, Toohey J decided the conviction should be quashed and a verdict of not guilty should be entered.
Gaudron J, also in a separate judgment, considered whether the trial judge should have exercised the discretion to exclude evidence which had been illegally obtained by excluding the prosecution evidence in its entirety, even though some or all of it was obtained quite properly. Her Honour determined that it was completely incompatible with the judicial process and with public confidence in the administration of the criminal law if, there being no abuse of process, the courts were to involve themselves with the question of whether criminal proceedings should be instituted or maintained by bringing a halt to a prosecution by the exclusion of the prosecution evidence in its entirety. Her Honour said that if a prosecution was to be brought to a halt it could only be because, in the circumstances, it constituted an abuse of process (74).
Her Honour said that the theoretical possibility that an offence might be committed when the offender could not or would not have committed but for the lawful actions of law enforcement agents could be considered if and when such a case arrived (76). The critical consideration for her Honour was whether Mr Ridgeway's offence resulted from the criminal acts of law enforcement officers or those acting on their behalf. Gaudron J said the proceedings in which there had been entrapment of that kind are an abuse of process because they weaken public confidence in the administration of justice (78).
Her Honour decided that the case against Mr Ridgeway ought to be permanently stayed because it was an abuse of process, due to the fact that the offence charged against Mr Ridgeway resulted from the criminal acts of law enforcement officers or those acting on their behalf.
McHugh J was in dissent as to the result. In his Honour's view, a stay of a prosecution was the appropriate remedy where the commission of a criminal offence was induced by or resulted from the misconduct of law enforcement officers. To this extent it seems that his Honour agreed with Gaudron J, that such proceedings would be an abuse of process (87).
The above, rather lengthy, summary of the judgments in Ridgeway is necessary to illustrate that the case is not authority for the proposition that an accused is entitled to a permanent stay of a prosecution on the basis that it is an abuse of process, even if he or she was induced by the illegal acts of the law enforcement officers, or those acting on their behalf, to commit these offences.
Only Gaudron J favoured a stay of the prosecution in Ridgeway in order to remedy such an abuse of process. On my reading of the judgments, both McHugh and Toohey JJ would also have stayed the prosecution if there had been proof of entrapment. However, the majority (comprising the plurality and Brennan J, on this point), would not have stayed the prosecution because it was an abuse of process. The plurality stayed the prosecution because after the discretion to exclude evidence of the offences resulting from the illegal activity of the law enforcement officers had been exercised, the prosecution must inevitably fail through lack of evidence. Brennan J did not regard it as an abuse of process to prosecute an offender who has been induced to commit an offence in order to procure his conviction.
There was greater unanimity in respect of the proposition that a court has a discretion to exclude all the evidence against an accused, or evidence in relation to a particular element of an offence against an accused, on the grounds of public policy if the offence results from the illegal activity of law enforcement officers or those acting on their behalf. However, illegality alone was not a factor which in the plurality's view justified the exclusion of the evidence. Their Honours identified the factors justifying exclusion of the evidence of importation in Ridgeway's case as being 'grave and calculated police criminality; the creation of an actual element of the charged offence; selective prosecution; absence of any real indication of official disapproval or retribution; [and] the achievement of the objective of the criminal conduct if evidence be admitted' (42). Further, against those factors, the plurality acknowledged that other factors favouring the admission of the evidence had to be considered. It was only after that weighing process had been done that they concluded that the evidence ought to have been excluded in Ridgeway's case.
Brennan and Toohey JJ decided that the evidence against Mr Ridgeway should be excluded on public policy grounds. Gaudron J would have only excluded the illegally obtained evidence rather than all of the prosecution evidence.
There was not such a clear indication of what the appropriate result would have been in Ridgeway's case if the conduct of the law enforcement officers or those acting on their behalf in that case had been improper, rather than illegal. The plurality said the exclusion of the evidence was only justified in 'extreme cases'. McHugh J would have excluded evidence obtained by improper conduct on the same grounds as evidence of unlawful conduct. Other members of the majority did not decide the issue.

Discussion

If the answers to the questions are as favourable as Mr Webster hopes, the evidence would establish that law enforcement officers or those acting on their behalf (Mr Olomi), procured Mr Webster to contact and form a relationship with Rob, a person who he would believe was a 'Mr Big' in the illicit drug trafficking industry. Mr Olomi allegedly persuaded Mr Webster to present a ruse or a false story to Rob in order to make Rob believe that Mr Olomi and Mr Webster were able to get cocaine shipped to Australia. The premise being the false impression thus created, would cause 'Mr Big' to involve Mr Olomi and Mr Webster in some drug deals. This is the only inference to draw from Mr Webster’s statement that 'Mr Big would eventually let us in on something else'.
Even assuming that Mr Webster had not pleaded guilty, that the prosecution intended to lead the evidence from Mr Olomi and Ms Driver at his trial, that Mr Olomi and Ms Driver were law enforcement agents or acting on behalf of law enforcement agents, and the conversations between Mr Webster, Mr Olomi and Ms Driver occurred as Mr Webster alleges, I do not accept Mr Olomi and Ms Driver engaged in illegal or improper conduct, which would justify the exclusion of their evidence at his trial.
Turning first to consider Mr Olomi's conduct, on Mr Webster’s story, there was no intention on his or Mr Olomi's behalf that the ruse that was to be used to establish a relationship with 'Mr Big' represented an intention on behalf of Mr Olomi or Mr Webster to actually import narcotics into Australia. Neither, in my view, can it be said that the conversations between Mr Olomi and Mr Webster induced Mr Webster to commit the offences with which he is charged. The conversations may have induced him to speak to and establish a relationship with Rob, who he believed was 'Mr Big'. However, the conversations with Rob, which resulted in these offences actually being committed occurred months later and had nothing to do with Mr Olomi. At the very most, on Mr Webster's account, Mr Olomi's behaviour involved some deceit.
Turning then to consider Ms Driver's conduct, her involvement with Mr Webster involved her purporting to work for Rob and making some comments about his business dealings. On Mr Webster's case when she did so, she knew that she was not telling him the truth. Assuming, most favourably to Mr Webster that the first formal authority was not in effect at this time and Ms Driver was a law enforcement agent or a person acting on behalf of a law enforcement agent, her conduct may have involved some deceit, which would amount to minor impropriety.
The actions of Mr Olomi and Ms Driver, assuming that they were acting in some capacity on behalf of the AFP, were not clearly inconsistent with minimum standards of acceptable police conduct. Further, their conduct did not procure the commission of the offences to which Mr Webster pleaded guilty.
The involvement of APAC Distribution, in my opinion, is of no moment.
These findings mean that the answers to the questions would not assist Mr Webster to obtain a stay. However, there are other reasons why the answers relating to the conduct of Mr Olomi and Ms Driver, even on a view of the facts most favourable to Mr Webster, could not assist Mr Webster to obtain a stay of these charges.
The first is that the Crown does not rely upon the evidence of Mr Olomi and Ms Driver to prove the charges against Mr Webster. The Ridgeway discretion is an exclusionary one.
The second is that in order to obtain a stay of these proceedings on the basis of the principles analogons to those stated in Ridgeway, Mr Webster would have to show that not only would the evidence of these witnesses be excluded in the exercise of the discretion to exclude evidence on the grounds of public policy, but also that after exclusion of the evidence, the prosecution case would inevitably fail. Because the prosecution case does not rely upon the evidence of Mr Olomi and Ms Driver, Mr Webster could not use the answers to the questions to justify a stay of the proceedings. Even if the prosecution had intended to call the evidence of Mr Olomi and Ms Driver, the exclusion of the evidence would not mean that the prosecution against Mr Webster would inevitably fail.

For all these reasons the claim for public interest immunity over the answers to the questions must be upheld. In addition, there is a fundamental difficulty with Mr Webster's application for a stay of the prosecution, which means that not only that the claim to public interest immunity must be upheld, but also that his application for a stay must be dismissed.
The insurmountable difficulty is that Mr Webster entered pleas of guilty to these charges and has been convicted of them. He has applied to set aside his pleas of guilty. That application has been heard and dismissed: Webster v The Queen [No 2]. He stands convicted of these charges. He is awaiting sentence for them and unless there is a proper reason for adjourning sentence, the court is obliged to proceed to sentence Mr Webster.
Mr Webster's pleas of guilty constituted an admission by him of each of the essential elements of each of the three offences against him: Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501, 510; Nelson v Haynes [2003] WASCA 73; (2003) 27 WAR 154 [55], [57]. It is now irrelevant whether Mr Webster could have successfully objected to the admissibility of any evidence, which the Crown may have tendered at a trial of these charges. An accused may plead guilty to a criminal offence and a plea of guilty will not be set aside even in circumstances where there was insufficient evidence to prove the offence: Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 141 and 157. In saying this, I do not suggest that this was such a case. As Hall J found, the prosecution case was strong: Webster v The Queen [No 2] [37].
Not only is it irrelevant whether Mr Webster could have been successful in excluding any of the Crown's evidence, it is by no means clear that he would have been able to do so. Not only would Mr Webster have had to satisfy the court that the evidence of which he complained was illegally or improperly obtained, he would have also had to persuade the court that the public policy grounds which favoured excluding evidence outweighed those grounds in favour of admitting it. But, as I have said, those issues are irrelevant at this point. If Mr Webster had wished to raise them, he should have pleaded not guilty to these offences. Rather, he pleaded guilty and the law is that he must be sentenced for the offences.
I do not accept that, what is sometimes called, the Ridgeway discretion enables me to stay charges after pleas of guilty have entered, an accused has been convicted and he is awaiting sentence. As I have pointed out, the Ridgeway discretion is a discretion to exclude evidence. Where such an exclusion results in insufficient evidence to prove a charge, the court may then stay the proceedings. There is no question of me now determining that evidence should have been excluded when Mr Webster entered pleas of guilty and his application to have those pleas set aside has been unsuccessful.
Ridgeway does not stand for the proposition that a court may stay a criminal prosecution on the basis that it is an abuse of process because evidence, which may have been led to prove offences at a trial, but which was never led because pleas of guilty were entered, may have been excluded in the exercise of a judge's discretion to exclude evidence on public policy grounds. Neither is it authority for the proposition that a court can permanently stay a prosecution as an abuse of process because evidence of the offence itself, or of an element of it, was obtained illegally.
Further, if the application which Mr Webster makes for a stay of his prosecution was successful, he would remain convicted of these offences, but never be sentenced for them. I have never heard of that situation arising. Even accepting that the Criminal Procedure Act s 90 empowers a superior court to permanently stay a prosecution at any time if it is in the interests of justice to do so, it is difficult to envisage a situation where an offender has been validly convicted of an offence, but where it would be in the interests of justice that he or she not be sentenced. Even if that is a theoretical possibility, I do not believe that it is in the interests of justice that it occur in this case.
I have found it unnecessary to decide whether there was any illegal or improper conduct on behalf of Rob. But even if there was, in my opinion, the above principles mean that it is not open for me now to stay the prosecution. If Mr Webster had wished to object to the admissibility of Rob's evidence on the basis that it had been unlawfully or improperly obtained, then the time to do so was before his conviction. It is not now open for me to stay his convictions or stay the prosecution on the basis that a trial judge's discretion may have been exercised to exclude it.
If the conduct of the law enforcement officers were so heinous that Mr Webster's conviction amounts to a miscarriage of justice or his prosecution was an abuse of process, then the convictions ought not to stand. A stay of the prosecution after conviction and before sentence is not the appropriate remedy. In saying this, I am not suggesting that his convictions do amount to a miscarriage of justice or his prosecution was an abuse of process.

Conclusion

For these reasons, I uphold the claim for public interest immunity in respect of the answers to the questions.
Mr Webster submitted that even if the claim for public interest immunity was upheld, his application for a permanent stay would not fail because there was evidence that post-dated the events with Mr Olomi and Ms Driver, which would support the application for a stay. This was on the basis that there had been illegal or improper conduct by Rob. It is obvious from my reasons that the time has passed, in my view, for this court to consider the admissibility of evidence of the conduct of Rob.
For the reasons I have given, not only must the claim of public interest immunity be upheld, but the application for a permanent stay of the prosecution against Mr Webster must fail.