Yates (a Pseudonym) v The Queen
[2017] VSCA 188
•20 July 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0087
| TREVOR YATES (A PSEUDONYM) | Applicant |
| v | |
| THE QUEEN | Respondent |
AND
S APCR 2017 0090
| STEVEN WATERS (A PSEUDONYM) | Applicant |
| v | |
| THE QUEEN | Respondent |
AND
S APCR 2017 0091
| ANDREW COBB (A PSEUDONYM) | Applicant |
| v | |
| THE QUEEN | Respondent |
AND
S APCR 2017 0092
| IAN WILSON (A PSEUDONYM) | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN, SANTAMARIA and ASHLEY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 28 June 2017 |
| DATE OF JUDGMENT: | 20 July 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 188 First revision 14 August 2017 |
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CRIMINAL LAW – Alleged drug offences – Trafficking in not less than large commercial quantity of heroin – Interlocutory appeal from ruling of trial judge not to exclude evidence of controlled purchases.
EVIDENCE – Admissibility – Controlled purchase transactions pursuant to authority – Crimes Act 1914 (Cth), Part IAB – Whether evidence illegally or improperly obtained – Authority valid – Conduct authorised by authority – Crimes Act 1914 (Cth) s 15GK(1)(f).
WORDS AND PHRASES – ‘Arrangement’.
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| APPEARANCES: | Counsel | Solicitors |
| For the applicant (Yates) | Mr O P Holdensen QC with Ms S T Keating | Lethbridges |
| For the applicant (Waters) | Mr M J Gumbleton | David Barrese & Associates |
| For applicant (Cobb) | Mr A V Chernok | Theo Magazis & Associates |
| For applicant (Wilson) | Mr M P McGrath | Melasecca Kelly & Zayler |
| For the respondent | Mr P A Stefanovic with Mr C T Carr | Office of Public Prosecutions |
| For the Chief Commissioner of Police | Ms R Orr QC with Ms C M Harris | Victorian Government Solicitor’s Office |
WHELAN JA
SANTAMARIA JA
ASHLEY JA:
In the course of investigating drug-related crimes, the Australian Federal Police obtained a Controlled Operation Authority pursuant to Part IAB of the Crimes Act 1914 (Cth) (‘the Authority’). The Authority authorised identified people, including a person referred to as ‘male Tony’, to engage in certain criminal conduct in furtherance of the investigation.
The applicants have been charged with various offences including trafficking in not less than a large commercial quantity of heroin.[1] The trafficking charges arise out of four controlled purchases made by certain persons on 30 October 2014, 19 November 2014, 9 December 2014 and 15 December 2014 purportedly pursuant to the Authority. To a significant extent, the prosecution case relies on this evidence.
[1]Drugs, Poisons and Controlled Substances Act 1981 s 71.
By pre-trial submissions, the applicants contended that evidence of the four controlled purchases should not be admitted on the ground that those purchases were unlawful or improper because the relevant conduct by the persons who made the purchases was not exempt under by Part IAB of the Crimes Act 1914 (Cth) (‘the Act’).
The applicants contended that the relevant conduct was unlawful or improper because the Authority itself was invalid. It was contended that the description of the nature of the controlled conduct that the law enforcement participants were authorised to engage in, and the particulars of the controlled conduct that the civilian participants were authorised to engage in, did not comply with the requirements of the Act, in substance, because they were insufficiently specific.
Further, the applicants contended that, if the Authority was valid, the relevant conduct was unlawful or improper because it was outside the ambit of the conduct respectively described or particularised in the Authority.
In that context objection was taken by the Chief Commissioner of Victoria Police (‘CCP’), supported by the Commissioner of the Australian Federal Police, to the answering of questions and to the production of documents concerning the status (that is, whether law enforcement or civilian participant) of ‘male Tony’. The ground of the objection was public interest immunity.
On 1 May 2017 the trial judge in the County Court ruled that the evidence of the four purchases was admissible. The objection by the CCP, and the status of ‘male Tony’, were both left undetermined.
Each applicant has given notice under s 295 of the Criminal Procedure Act 2009 that he wishes to appeal against that interlocutory decision. The primary judge who made the interlocutory decision has given a certificate under s 295(3) of the Criminal Procedure Act 2009.
Relevant facts
In the course of the committal proceeding a redacted version of the Authority was produced and tendered in evidence together with an affidavit of Detective Sergeant Jonathan Lee Ersch sworn on 22 March 2016 explaining it.[2] Ersch is the ‘Principal Law Enforcement Officer’ under s 15GC of the Act. As such he was required to ensure that the conduct of those involved remained within the scope of the Authority.
[2]The affidavit of Jonathan Lee Ersch sworn on 22 March 2016 was not in the materials before the Court.
In a further affidavit sworn on 21 April 2017, Ersch described the relevant operation (‘Operation Grote’) and his own role in it. He said:
Operation Grote was a targeted investigation initiated by the JOCTF [Joint Organised Crime Taskforce] into the activities of the [O] Syndicate (the Syndicate). I was the investigation manager for Operation Grote. The operation resulted in the arrests of the five accused on 17 December 2014 for the charges currently before the Court in this proceeding. On 12 May 2015, police arrested [person named] who has been convicted of offences which are alleged to include the criminal conduct of the accused. However as he was a minor at the time of his arrest, his charges were heard and determined in the Broadmeadows Children’s Court of Victoria. As part of Operation Grote, further members of the Syndicate have been arrested and charged, including an arrest of a Syndicate member in New Zealand on 17 December 2014.
Operation Grote identified evidence that the five accused were involved in the importation of heroin into Australia and the trafficking of commercial quantities of heroin within Australia. As part of Operation Grote, four purchases of heroin from members of the Syndicate were made by Victoria Police covert operatives. These purchases were made in accordance with an Authority issued pursuant to Part IAB of the Crimes Act 1914 (Cth), the AFP Formal Authority for a Major Controlled Operation (Controlled Operation Number: AFP 14-15/45) (the Authority). The Authority was authorised by AFP Deputy Commissioner Michael Phelan on 10 October 2014. I am the Principal Law Enforcement Officer named on the Authority to conduct the controlled operation. Pursuant to s 15GC of the Crimes Act 1914 (Cth), as Principal Law Enforcement Officer, I was responsible for the conduct of the operation authorised by the Authority. I was also required to ensure that the conduct of those involved in the conduct authorised by the Authority remained within the scope of the Authority.
Following Magistrate Robertson’s first ruling on 29 October 2015, a redacted copy of the Authority (‘the redacted Authority’) was provided to the Court, to the legal representatives of four accused and to [Yates], who was not legally represented. The redacted Authority shows that there were both law enforcement and civilian participants in the operation authorised by the Authority. Information in the redacted Authority has been redacted on the basis of public interest immunity.
…
A unique identifying number that exclusively refers to ‘Male Tony’ appears on the Authority, but is part of the redacted information. On 30 October 2015, the legal representatives for the four represented accused were informed by the CCP’s legal representatives that ‘Male Tony’ was named on the Authority. The legal representatives were not informed of the capacity in which ‘Male Tony’ is identified in the Authority, namely whether he is a police officer or a civilian participant, because this would undermine the claim for public interest immunity.
As the investigation manager for Operation Grote, and the Principal Law Enforcement Officer named on the Authority, and from my knowledge of the investigation resulting in the arrest and prosecution of the accused, I believe that all persons identified on the Authority at all times acted within the scope of the Authority.[3]
[3]Affidavit of Jonathan Lee Ersch sworn on 21 April 2017, [15]–[19].
Terms of the Authority
The Authority, relevantly, reads as follows:
Members of the Australian Federal Police (AFP) are currently investigating:
Controlled Operation Number: AFP 14-15/45
TO:The principal law enforcement officer Detective Sergeant Jonathan ERSCH of the Australian Federal Police, a law enforcement agency within the meaning of section 15GC of the Crimes Act 1914.
A formal application has been made to me by Federal Agent Andrew Lloyd DAVIES under section 15GH of the Crimes Act 1914, for the issue of an authority to conduct a major controlled operation under section 15GI of the Act.
Members of the Australian Federal Police (AFP) are currently investigating:
Importation of a commercial quantity of a border controlled drug, namely heroin, under section 307.1 of the Criminal Code (Cth) being a Commonwealth offence that involves importation of prohibited imports which is punishable on conviction by imprisonment for a period of life or 7500 penalty units, or both.
Possessing commercial quantities of unlawfully imported border controlled drugs, namely heroin, under section 307.5 of the Criminal Code (Cth) being a Commonwealth offence that involves controlled substances which is punishable on conviction by imprisonment for a period of life or 7500 penalty units, or both.
Trafficking a commercial quantity of a controlled drug, namely heroin, under section 302.2 of the Criminal Code (Cth) being a Commonwealth offence that involves controlled substances which is punishable on conviction by imprisonment for a period of life or 7500 penalty units, or both.
The investigation is targeting the activities of:
·[O], born 20 November 1965 …
·[Yates], born 10 June 1974 …
[Redacted]
And a person or persons as yet unknown who have been responsible for or will be involved in the illegal activity that is the subject of this authority.
The nature and quantity of illicit goods to which the operation relates are:
Up to 50 kilograms of heroin which is a commercial quantity of controlled drugs as defined under Schedule 3, Regulation 5A of the Criminal Code Regulations 2002, possession of which is in contravention of section 307.5 of the Criminal Code (Cth).
The foreign countries through which any such illicit goods have passed, or are likely to pass, in the course of the operation are: Afghanistan, Pakistan, [redacted] and New Zealand.
…
I, Deputy Commissioner Michael PHELAN, am satisfied by information given to me:
…
(c)that any unlawful conduct involved in conducting the controlled operation will be limited to the maximum extent consistent with conducting an effective controlled operation; and
…
I certify that the participants set out below are authorised to conduct a controlled operation in relation to the importation of prohibited imports and controlled substances in accordance with the provisions of Part IAB of the Crimes Act 1914. The nature of the controlled conduct which the participants may engage in is set out below.
The law enforcement participants set out in the following table are permitted to be involved in the operation, and the nature of activities covered by the authority for each such person is set out opposite their name:
Law Enforcement Participants
Nature of controlled conduct
[Redacted]
Engage in discussions, communications and arrangements with [O], [Yates], [redacted] or their associates, regarding the purchase, trafficking, possession and/or importation of border controlled drugs and/or precursors.
Exchange money relating to the purchase and/or importation of border controlled drugs and/or precursors.
The persons set out in the following table, who are not law enforcement officers are permitted to be involved in the operation, the particulars of conduct authorised for each such person is set out opposite each such person:
Civilian Participants
Particulars of conduct that the participant is authorised to engage in
[Redacted]
Under the direction of law enforcement:
Engage in discussions, communications and arrangements with [O], [Yates], [redacted] or their associates via phone, email, in person or other means permitted by law enforcement, regarding the purchase, trafficking, possession and/or importation of border controlled drugs and/or precursors.
Possess money and/or facilitation of money exchange relating to the purchase and/or importation of border controlled drugs and/or precursors.
…
In the course of submissions counsel referred to the sections of the Authority headed ‘Law Enforcement Participants’ and ‘Nature of controlled conduct’ and headed ‘Civilian Participants’ and ‘Particulars of conduct that the participant is authorised to engage in’ as ‘boxes’ and we will do the same.
Ruling of the primary judge[4]
[4]Unreported, County Court of Victoria, Judge Lyon, 1 May 2017 (‘Reasons’).
Before the trial judge, it was contended that the scope of the Authority was exceeded by both the law enforcement participants and the civilian participants because the terms of the Authority in relation to each group in the respective boxes were confined to ‘discussions, communications and arrangements’ regarding or relating to the purchase, trafficking, and possession of drugs. It was submitted that those terms did not authorise trafficking itself but rather were confined to conduct ancillary to it.
Alternatively, it was contended that the Authority was invalid because it did not comply with the Act. The descriptions of the authorised conduct were said to be insufficient, too broadly expressed and nebulous. Reliance was placed, by way of contrast, on the wording of the authority, and the variations to that authority, considered in the decision of the Court of Appeal in Western Australia in Webster v The Queen (‘Webster’).[5]
[5][2015] WASCA 20. The actual text of the authority considered in Webster does not appear in the reasons of the Court of Appeal (WA). The Court of Appeal extracted the summary of the text considered by the primary judge:
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 [13]–[15].
Webster [2015] WASCA 20, [40] (McLure P, Buss and Mazza JJA), quoting Webster v The Queen[No 4] [2013] WASC 479, [13]–[15] (Jenkins J) (emphasis added).
As to the contention concerning the scope of the Authority, the trial judge said:
In my view, it follows that the word ‘arrangements’ can refer to both the planning of the future event and the result of the event itself. In this instance, the Authority enables nominated participants to discuss, communicate and plan the intended purchase of heroin. By the word ‘arrangement’, the officers are also, in my view, authorised to undertake the actual transaction.
My view in this respect is fortified by the fact that officers also are empowered to exchange money relating to the purchase of heroin.
I do not consider that the words ‘regarding’ and ‘relating to’ should be read as having an antecedent, or limiting effect. Rather, the natural meaning of the words is to ‘make or show a connection between’. In this respect, ‘discussions, communications and arrangements regarding the purchase of heroin’ simply means ‘discussions, communications and arrangements connected to the purchase of heroin’. When seen in this light, there can be no suggestion that law enforcement officers were required to stop before making actual purchases.
Further, the words ‘exchange money relating to the purchase of heroin’ simply means ‘exchange money in connection with the purchase of heroin’.
Accordingly, I consider that the Authority authorised law enforcement officers to not only conduct the negotiations leading up to but to also participate in direct drug purchases.
Similar considerations apply to the authorisation of civilian participants. Civilian participants were authorised to engage in ‘discussions, communications and arrangements via phone, email, in person or other means permitted by law enforcement, regarding the purchase…of heroin’. Thereafter, civilian participants were enabled to possess money and/or facilitate money exchange relating to the purchase.
Given the analysis I have already undertaken, it must follow that, in my opinion, civilian participants were also authorised under the terms of the Authority to engage not only in the preliminary, or lead up discussions and negotiations, but in aspects of the actual transactions themselves.[6]
[6]Reasons [37]–[43].
It will be noticed that the trial judge made separate findings: he found that the Authority authorised law enforcement participants to participate in drug purchases, and that the Authority authorised civilian participants to participate in drug purchases.
As to the contention concerning the validity of the Authority, the trial judge said:
Section 15GK(1)(f) specifies only that the Authority must set out the ‘nature of the controlled conduct that those participants may engage in’ for law enforcement officers. Taking my earlier consideration of the word ‘nature’, the Authority is only required to specify the basic inherent features, qualities or character of the conduct.
In my view, this aspect of the Authority provides a clear and reasonable statement of permitted or controlled conduct: nominated officers were permitted to negotiate and buy heroin from [Yates] and others. I do not consider that the words ‘regarding’ or ‘relating to’ can reasonably be read as restricting the permitted conduct to falling short of conducting actual transactions with the targets or their associates. In fact, to do so would be counterintuitive to the reason for the implementation of Part 1AB in the first place.
Likewise, I consider that the part of the Authority relating to civilian participants sufficiently particularises the conduct which they could undertake. Their conduct was always to be subject to the directions of a law enforcement officer. In my view it is clear that civilian participants were authorised to participate in the lead up to purchases, and then to act within those purchase transactions. In addition, under the direction of law enforcement officers, civilian participants were authorised to hold the money and facilitate the exchange of that money in the actual controlled transactions for the purchase of heroin.
Accordingly, I consider that the Authority was sufficient to authorise the nominated participants to negotiate with, and purchase heroin from, Mr [Yates], Mr [O] and their associates.
I have read the decision in Webster and particularly the passage at [40]. That case relies upon the description given by the trial judge as to the contents of the Authority, as the Authority itself is not attached to the judgment of the Court of Appeal or to the judgment at first instance. So far as it can be gleaned from the passage reproduced from the judgment of Jenkins J, I do not consider the Authority in Webster’s case to be particularly different or more detailed than the Authority produced in this case. Of course, in Webster, the law enforcement officers were delivering an inert substance in exchange for money from Mr Webster. Yet although it is the obverse to the transactions conducted in this case, I do not find anything in the description of Jenkins J to suggest that the Authority in that case was any more detailed or prescriptive than here. Moreover, the variations sought to the Authority in Webster’s case were natural: there is a variation to extend the date or length of the operation; there is a variation to deliver the inert substance, receive payment for it and to deliver sample drugs; and a final variation authorising a new undercover operative to enter the negotiations. Although it does not appear that the Authority in Webster’s case used either the term ‘regarding’ or ‘relating to’, I do not see the differences between the Authorities (in Webster and in this case) as providing any reason, by a comparison of the Authorities against each other, for causing me to conclude that the Authority here did not sufficiently describe the controlled conduct such as to not exempt either civilian participants or law enforcement officers from criminal liability in their dealings with Mr [Yates] and others.[7]
[7]Reasons [45]–[49].
The trial judge, again, separately addressed the position in relation to the law enforcement participants and the position in relation to the civilian participants.
The trial judge did not determine the public interest immunity objection concerning ‘male Tony’. He ruled against the contentions made in support of exclusion of the evidence ‘irrespective of whether the male Tony was a law enforcement officer participant or a civilian participant’.[8]
[8]Reasons [50].
Application for leave to appeal
On 8 May 2017 Yates applied for leave to appeal the ruling. His proposed ground of appeal is as follows:
The Learned Trial Judge erred by finding that evidence obtained in connection with the Authority for a Major Controlled Operation (the Authority) was not illegally or improperly obtained on the basis that:
i.The terms of the Authority were sufficiently specific in accordance with Part IAB Crimes Act 1914, to exempt the criminal conduct engaged in by law enforcement officers and/or civilian participants;
ii.Compliance with s 15GK(1)(f) of the Crimes Act 1914 which calls for the particular conduct of civilian participants to be specified, could be achieved by the Authority requiring that participation of civilians was subject to the directions of a law enforcement officer;
iii.It was not necessary to identify the status of ‘Male Tony’ as a civilian or law enforcement officer and separately consider whether the Authority exempted that person’s criminal conduct from criminal liability under Part IAB Crimes Act 1914;
iv.Evidence obtained in connection with the Authority was not improperly obtained because it was within the scope of the Authority, in accordance with the statutory safeguards in Part IAB and not without limit.
On 9 May 2017 Waters applied for leave to appeal. His proposed ground of appeal is as follows:
The learned trial judge erred in finding the impugned evidence was not obtained improperly or illegally, or in consequence of an impropriety or illegality, pursuant to sections 138(l)(a) and (b) of the Evidence Act 2008 (Vic) on the basis that:
a.The Major Controlled Operation Authority (the Authority) complied with Part IAB of the Crimes Act 1914 (Cth), insofar as the unlawful conduct was sufficiently specified and ‘limited to the maximum extent[ required by section 15GI(2)(c);
b.The Authority sufficiently specified ‘the particular controlled conduct’ that ‘Male Tony’ was authorised to engage in for the purposes of section 15GK(l)(f)(ii) of the Crimes Act 1914 (Cth), such that it was unnecessary to determine the status of that person as either a ‘law enforcement participant’ or a ‘civilian participant’; and
c.The law enforcement participants and/or the civilian participants are exempt from criminal responsibility for any offence as their conduct was authorised by the Authority pursuant to section 15HA(2)(a) of the Crimes Act 1914 (Cth).
Cobb and Wilson have also applied for leave to appeal against the ruling. In each case, the proposed ground of appeal is identical to that of Waters.
All applicants, and the respondent, agreed that if the Court found the judge had erred as to either the validity of the Authority or as to its proper construction, the matter should be remitted to the trial judge for the exercise of discretion under s 138 of the Evidence Act 2008.
Contentions of Yates
In his submissions, Yates contended that (1) the Authority did not comply with the Act and (2) it did not authorise the actual conduct of the law enforcement participants and the civilian participants in the present case.
Yates relied upon a number of matters in relation to the asserted non-compliance with the Act.
It was submitted that the wrong language had been used on the face of the Authority. The words introducing the conferral of authority on law enforcement participants spoke in terms of ‘the nature of activities covered by the authority for each such person’ rather than (as required by s 15GK(1)(f)(i)) ‘the nature of the controlled conduct that those participants may engage in’. The words introducing the conferral of authority on the civilian participants spoke in terms of ‘the particulars of conduct’ rather than (as required by s 15GK(1)(f)(ii)) ‘the particular controlled conduct’.
It was submitted that the controlled conduct in each box referred to ‘border controlled drugs’ rather than the particular drug which was involved in the investigation, namely heroin; and was then extended to ‘precursors’, when there was no suggestion that precursors were involved in the operation. The boxes contained no time limitation.
Yates emphasised that s 15GK(1)(f) of the Act required the Authority to ‘specify’ the relevant matters. It was submitted that this meant it was necessary that the text be explicit, unambiguous, clear, categorical, definite and with some detail.[9] It was submitted that the necessity for precision in the conferral of authority becomes clear when reference is made to s 15HA which exempts law enforcement participants and civilian participants from criminal responsibility for controlled conduct during controlled operations. It was submitted that the Authority did not ‘specify’ either the ‘nature’ of the controlled conduct for law enforcement participants or ‘the particular’ controlled conduct for civilian participants.
[9]Counsel cited Leros Pty Ltd vTeraraPty Ltd (1992) 174 CLR 407,423; Deputy Commissioner of Taxation v Gillis (2003) 59 NSWLR 153; Evans v Minister for Immigration and Indigenous Affairs (2003) 135 FCR 306 (Gray and Kenny JJ); Chief Examiner v Brown(A Pseudonym) (2013) 44 VR 741, 776-77[124]; Harofam Pty Ltd v Scherman (2013) 42 VR 372,376-77 [13]-[14]. On the meaning of ‘particular’, see R v Nicholas (2000) 1 VR 356,378[70], especially 380-81 [76], 381-82 [78], 387 [90] and 388-89 [94].
Yates submitted that the language of the Authority is too broad and general. It refers to ‘discussions, communications and arrangements’. It does not focus upon what is permitted to be the subject of the ‘discussions, communications and arrangements’. It does not specify the relevant drug (heroin) or the relevant quantity. The expression ‘[e]xchange money relating to’ does not identify with whom the money is to be exchanged nor the purpose of the exchange. It could have said ‘provide money to’ or ‘give money’. The expression ‘engage in … arrangements’ ‘was not English’ and did not make sense. One does not ‘engage’ in arrangements; one makes them.
In the event that conduct, otherwise authorised, was anticipated to go beyond the authorised matter specified, it was submitted that the Authority could be varied under s 15GO(5) as, it was submitted, had been done in Webster. Where general words of the kind employed here are used, it becomes ambiguous and unclear whether the conduct engaged in was ‘controlled conduct’.
Alternatively, it was submitted that, if the Authority is valid, it refers only to acts antecedent to the purchase of border controlled drugs. It does not extend to the purchase itself, or to the taking possession and receipt of heroin. It did not embrace trafficking. The conduct which was to be lead in evidence was said to be unlawful because it went outside the authorised conduct.
Contentions of Waters and the other applicants
In his written submissions, Waters said that the provisions of Part IAB of the Act require that the controlled conduct be stated in the Authority with a degree of specificity that limits criminality to the maximum degree required to conduct an effective controlled operation. The present Authority was bad in so far as it purported to authorise ‘participants to commit any drug related offence as it relates to any border controlled drug or precursor’.
Waters submitted that the primary judge erred in finding that even if ‘male Tony’ was a ‘civilian participant’ the Authority authorised his conduct. It was submitted that it was necessary to determine the status of ‘male Tony’ in order to decide whether the impugned evidence was obtained by reason of an impropriety or illegality.
Waters adopted the contentions of Yates on the issue of whether the Authority complied with the Act. In particular, he contended that the trial judge had erred in finding that the conferral of authority in the box concerning civilian participants had been sufficiently particularised. He drew attention to the difference between the wording in s 15GK(1)(f)(i) (‘the nature of the controlled conduct’) and the wording in s 15GK(1)(f)(ii) (‘the particular controlled conduct (if any)’). He referred to the Revised Explanatory Memorandum to the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 (Cth), which explained the different wording by reference to the necessity that the involvement of civilian participants be ‘tightly controlled’.[10] He compared the text of the Authority conferred on law enforcement participants in the first box with that conferred on civilian participants in the second box. He said that there was barely any difference between them. He contended that neither satisfied the requisite statutory requirements. Alternatively, he submitted that if the wording in respect of law enforcement participants was sufficient, that in relation to civilian participants could never be enough.
[10]Counsel relied upon pages 59–60, 67, 69, 71, 79 of the Revised Explanatory Memorandum, Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 (Cth).
Waters also contended that the conduct in fact engaged in by the law enforcement officers and the civilian participants was not authorised by the terms of the Authority.
Counsel for Cobb and Wilson adopted the submissions advanced on behalf of Yates and Waters.
Contentions of the respondent
The Director of Public Prosecutions (‘DPP’) contended that the Authority complied with the Act and that the conduct of the authorised persons fell within the specification contained in the Authority, substantially for the reasons given by the trial judge.[11]
[11]Senior counsel for the Chief Commissioner of Victoria Police made brief submissions on one issue of construction of the Act by way of assisting the Court. Her instructions had been to support the public interest immunity claim. The issue she addressed did not bear on that. As each of the applicants had submitted that, if his arguments in relation to the Authority were successful, the matter should be remitted to the trial judge, counsel for the Chief Commissioner said she had no further submissions.
Counsel for the respondent referred to the original explanatory memorandum to the amending bill which introduced the relevant provisions of the Act (the applicants having relied upon the revised explanatory memorandum). It was submitted that the original explanatory memorandum had made it clear that the relevant amending Act had adopted model legislation that had been drafted by the Standing Committee of Attorneys-General’s Joint Working Group and which had been included in a 2003 report entitled Cross-border Investigative Powers for Law Enforcement.[12] The DPP relied upon the explanations and examples given in that report as indicating that the wording used in the two boxes in the Authority closely accorded with what had been envisaged.
[12]Standing Committee of Attorneys-General and Australasian Police Ministers Council Joint Working Group on National Investigation Powers: Cross-border Investigative Powers for Law Enforcement, November 2003, 1–8 and 28–59 were relied upon.
The legislative scheme
Part IAB of the Act regulates the conduct of controlled operations.
Before the introduction of Part IAB, the High Court had ruled in Ridgeway v The Queen[13] that evidence of the importation and the consequent sale of heroin by law enforcement operatives should have been excluded in the trial of a person to whom the drugs had been sold on the grounds of public policy. Although the importation and sale had been carried out for the purposes of conducting an undercover operation, the law enforcement officers had illegally imported heroin into Australia.
[13](1995) 184 CLR 19.
Section 15G sets out the objects of Part IAB. Those objects reflect an intention on the part of the legislature to create a restrictive regime for the authorisation, conduct and monitoring of controlled operations. Section 15G provides as follows:
The main objects of this Part are:
(a)to provide for the authorisation, conduct and monitoring of controlled operations; and
(b) to exempt from criminal liability, and to indemnify from civil liability:
(i)law enforcement officers who, in the course of a controlled operation authorised under this Part, take an active part in, or are otherwise involved in, the commission of a Commonwealth offence or an offence against a law of a State or Territory or conduct that may result in a civil liability; and
(ii)certain other persons who, in accordance with the instructions of a law enforcement officer and in the course of a controlled operation authorised under this Part, take an active part in, or are otherwise involved in, the commission of a Commonwealth offence or an offence against a law of a State or Territory or conduct that may result in a civil liability.
Section 15GA(2) provides that in deciding whether to admit evidence of a controlled operation, the fact that an authorised participant engaged in criminal activity is to be disregarded if the person was authorised and the activity was ‘controlled conduct’ as defined.[14]
[14]The definition is in s 15GC.
Section 15GI(2) provides that an authorising officer must not grant an authority to conduct a controlled operation unless the authorising officer is satisfied on reasonable grounds:
…
(c)that any unlawful conduct involved in conducting the controlled operation will be limited to the maximum extent consistent with conducting an effective controlled operation; and
(d)that the operation will be conducted in a way that ensures that, to the maximum extent possible, any illicit goods involved in the controlled operation will be under the control of an Australian law enforcement officer at the end of the controlled operation; and
(e)that the proposed controlled conduct will be capable of being accounted for in a way that will enable the reporting requirements of Division 4 to be complied with; and
(f)that the controlled operation will not be conducted in such a way that a person is likely to be induced to commit a Commonwealth offence or an offence against a law of a State or Territory that the person would not otherwise have intended to commit; and
(g)that any conduct involved in the controlled operation will not:
(i) seriously endanger the health or safety of any person; or
(ii) cause the death of, or serious injury to, any person; or
(iii) involve the commission of a sexual offence against any person; or
(iv)result in significant loss of, or serious damage to, property (other than illicit goods); and
(h)that any role assigned to a civilian participant in the operation is not one that could be adequately performed by a law enforcement officer.
Section 15GK(1) sets out the required contents of an authority. It must:
(a)state the name and rank or position of the person granting the authority; and
(b)identify the principal law enforcement officer for the controlled operation and, if the principal law enforcement officer is not the applicant for the authority, the name of the applicant; and
(c) state that the application was a formal application; and
(d)identify the nature of the criminal activity (including the relevant suspected offences) in respect of which the controlled conduct is to be engaged in; and
(da)in the case of an integrity testing controlled operation authority--identify the integrity testing authority concerned; and
(e)state the identity of the persons authorised to engage in controlled conduct for the purposes of the controlled operation; and
(f) specify:
(i)with respect to the law enforcement participants, the nature of the controlled conduct that those participants may engage in; and
(ii)with respect to the civilian participants, the particular controlled conduct (if any) that each such participant may engage in; and
(g)identify (to the extent known) the person or persons targeted; and
(h)specify the period of effect of the authority, being a period not exceeding 3 months; and
(i)specify any conditions to which the conduct of the controlled operation is subject; and
(j)state the date and time when the authority is granted; and
(k)identify the following details (to the extent to which they are known and are relevant):
(i)the nature and quantity of any illicit goods that will be involved in the controlled operation;
(ii)the foreign countries through which those goods are likely to pass in the course of the controlled operation;
(iii)the place or places at which those goods are likely to be dealt with by an officer of Customs;
(iv)if subparagraph (iii) does not apply--the place or places where those goods are likely to enter into Australia;
(v)the time or times when, and the day or days on which, those goods are likely to be dealt with by an officer of Customs.
Section 15GC defines ‘controlled conduct’ and ‘conduct’ as follows:
conduct has the same meaning as in the Criminal Code.
controlled conduct means conduct constituting an offence for which a person would, but for section 15HA, be criminally responsible.
Section 4.1(2) of the Criminal CodeAct 1995 (Cth) defines ‘conduct’ as follows:
‘conduct’ means an act, an omission to perform an act or a state of affairs.
The singular includes the plural.[15]
[15]Section 23 of the Acts Interpretation Act 1901 (Cth) (headed ‘Rules as to gender and number’) provides as follows: ‘In any Act: (a) words importing a gender include every other gender; and (b) words in the singular number include the plural and words in the plural number include the singular .’
Section 15HA provides that, where a participant engages in conduct in accordance with an authority, and where that participant is identified in that authority as a person authorised to engage in controlled conduct (other criteria also being satisfied), that person is not criminally responsible for the offence.
In the context of this application s 15GK(1)(f) is the critical provision. It requires the Authority to ‘specify’:
· With respect to the law enforcement participants, the nature of the controlled conduct that those participants may engage in.
· With respect to the civilian participants, the particular controlled conduct (if any) that each such participant may engage in.
As all parties before us contended, s 15GK(1)(f) differentiates between what must be specified for law enforcement participants and what must be specified for civilian participants. In the case of law enforcement participants, the authority must specify the ‘nature’ of the controlled conduct. In the case of civilian participants, the authority must specify the ‘particular’ controlled conduct. It is plain that this differentiation gives expression to a legislative intention that the participation of civilians in a controlled operation is to be more tightly controlled than the participation of law enforcement officers.
The validity of the Authority
The first question which arises is whether the present Authority complied with the Act? In our opinion, it did.
In relation to law enforcement participants, the Authority must specify the nature of the controlled conduct that those participants are authorised to undertake. In our opinion this requires specification of the type of conduct authorised. In the present case, the Authority specified:
(a) the authorised acts: ‘engage in discussions, communications and arrangements’;
(b) the people with whom those acts may be undertaken: ‘[O], [Yates], [redacted] or their associates’;
(c) the purpose for which those acts may be undertaken: the ‘discussions, communications and arrangements’ were to be ‘regarding the purchase, trafficking, possession and/or importation’; and
(d) the subject matter of those acts: ‘border controlled drugs and/or precursors’.
In our opinion, this Authority sufficiently specifies the matters required to be specified by s 15GK(1)(f)(i).
The submissions put by the applicants that the Authority should have specified matters as specific as the actual drug (heroin) and the quantities are unrealistic, in our view. Every authority must specify conduct which is to occur in the future. In so far as the law enforcement participant is authorised to engage in discussions, communications and arrangements about trafficking in drugs, it would be impracticable to specify in advance that the only lawful discussion, communication and arrangement should be in respect of one particular drug and in a particular quantity or range of quantities. An authorised discussion, communication or arrangement could take any number of unanticipated turns. The Act does not require such rigidity. Amendment of an authority ‘after the event’ to address a discussion, communication or arrangement which fell outside over-restrictive language of that authority would lack utility.
The Authority also provides that the law enforcement participant is authorised to ‘[e]xchange money relating to the purchase and/or importation of border controlled drugs and/or precursors.’ The applicants contended that this phrase was lacking in specificity and that if what was meant was ‘use money to purchase drugs’ and then to take possession of the drugs purchased, it would have been easy enough to have said that. However, the issue is whether the words used constitute a specification of the ‘nature’ of controlled conduct. The fact that other and simpler words might have been used is beside the point. In our opinion, the words used in the Authority specified sufficiently the type of activity (the use of money to purchase drugs), and, hence, its ‘nature’.
In our opinion, the descriptions in the box setting out the nature of the authorised conduct for law enforcement participants were more specific than was necessary. This observation is relevant because of the applicants’ reliance upon the similarity between the words used in the Authority to specify the nature of the controlled conduct that law enforcement participants may engage in on the one hand, and the words used to specify the particular controlled conduct that civilian participants may engage in on the other. The applicants said that the Authority conferred on the law enforcement participants was insufficiently specific, or if it was sufficient, it was barely so. On either basis, they said that a fortiori the wording of the Authority in respect of civilian participants was lacking in the necessary specification of their particular conduct.
We do not accept the validity or usefulness of this approach. In each case where an issue of this kind arises, it is necessary to compare the wording of the applicable section of the authority with the relevant provisions of the Act. The box concerning law enforcement participants must be measured against the requirements of s 15GK(1)(f)(i). The box concerning civilian participants must be measured against the requirements of s 15GK(1)(f)(ii). When it comes to validity, nothing is to be gained by measuring the provisions of one part of an authority by reference to those in another part.
Likewise, the use of different expressions in the headings of the boxes to the words used in the Act are not significant if the text in the boxes satisfies the relevant statutory requirements. In our opinion, they do.
We consider that the proposed grounds of appeal, insofar as it was contended that the Authority was invalid, were sufficiently arguable to warrant granting leave to appeal but, for the reasons given, the appeal on that ground must be dismissed.
The scope of the Authority
If the Authority is valid, the applicants contended that the conduct engaged in by the participants was not authorised by the Authority. The applicants contended that the Authority only authorised conduct which was antecedent to the purchase of the heroin, and did not extend the purchasing, and taking possession of, the drug. The summary of prosecution opening reveals that the prosecution proposes to lead evidence of the four completed drug purchases, involving the exchange of money for heroin, by the participants. The applicants submit the Authority only authorised conduct antecedent to an actual purchase and exchange.
The key consideration in this context is the use of the term ‘engage in … arrangements’ in each of the boxes.
In Newton v Federal Commissioner of Taxation,[16] the Privy Council, in considering the meaning of ‘arrangement’ in s 260 of the Income Tax Assessment Act 1936 (Cth) which rendered tax avoidance arrangements void against the Commissioner, said:
Their Lordships turn to consider the other points raised in the case. Their Lordships are of opinion that the word ‘arrangement’ is apt to describe something less than a binding contract or agreement, something in the nature of an understanding between two or more persons—a plan arranged between them which may not be enforceable at law. But it must in this section comprehend, not only the initial plan, but also all the transactions by which it is carried into effect—all the transactions, that is, which have the effect of avoiding taxation, be they conveyances, transfers or anything else. It would be useless for the commissioner to avoid the arrangement and leave the transactions still standing.[17]
[16](1958) 98 CLR 1. Prior to the hearing the Court referred counsel to the exposition of the meaning of the word ‘arrangement’ in the context of s 260 of the Income Tax Assessment Act 1936 (Cth) in Newton v Federal Commissioner of Taxation. See also Federal Commissioner of Taxation v Newton (1957) 96 CLR 577.
[17]Newton v Federal Commissioner of Taxation (1958) 98 CLR 1, 7-8.
In our opinion, as the trial judge said, the use of the word ‘arrangement’ in each of the relevant boxes in the Authority embraces not only the planning of an activity, but also ‘all the transactions by which it is carried into effect’. While it might be accepted that the expression ‘engage in…arrangements’ is not particularly elegant, in our opinion it is clear in its meaning. The person is authorised to make the plan and to carry it out.
Insofar as the proposed grounds contend the conduct in issue was not within the scope of the Authority, we would dismiss the application for leave to appeal.
Other issues
During the course of the hearing consideration was given, and some submissions were made, as to the meaning of the words ‘(if any)’ in s 15GK(1)(f)(ii). The words present difficulty but none of the counsel, including counsel appearing for the CCP, submitted that they are significant in the resolution of the issues before us. We will accordingly leave that issue for resolution on an occasion where it is submitted that the words do have significance.
The proposed grounds of appeal suggested the judge had been in error in taking into account the fact that the box which specified or purported to specify the particular conduct that civilian participants could engage in required that their conduct be undertaken ‘under the direction of law enforcement’. The judge in his ruling did refer to that matter. It might be accepted that that was strictly irrelevant to what was required to be specified, although it did emphasise the control to which a civilian participant was to be subjected. In any event, in our opinion the judge’s conclusion that the specification in the relevant box did comply was correct.
Like the trial judge, we do not consider it to be necessary to determine the status of ‘male Tony’ in order to resolve the matters in contention in this application.
Conclusion
Our conclusions are relevantly the same as those reached by the trial judge. The proposed grounds of appeal do not separate the contention that the Authority itself was invalid from the contention that the conduct in fact engaged in was not within the scope of the Authority. In the circumstances we will simply order that the application for leave to appeal is granted but the appeal is dismissed.
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