(f) Section 7(1)(b) does not, for reasons stated above, constitute a jurisdictional fact.
(3) THE THIRD QUESTION: ADMISSIBILITY IN EVIDENCE OF THE REPORTS OF DR. LOUISE DEGENHARDT
220 The third question arises from the Notice of Motion filed in Court at the hearing on 2 November 2006. The motion was filed by the second defendant in the proceedings concerning Mr. Gedeon only. Mr. Robinson, in his oral submissions, stated that all of the plaintiffs wished to rely upon the expert evidence and that they all, in the judicial review hearing, also wished to rely on a report entitled "Illicit Drugs Reports", particularly in respect of the jurisdictional fact issue.
221 Mr. Temby, on behalf of the Crime Commission, contended that there was no necessity for notices of motion to be filed on each of the proceedings raising the third question. The purpose of the notice of motion raising the question in the Gedeon matter was to have the issue determined upon the basis that the answer to the third question would be regarded as an answer for the purpose of the other proceedings. The third question has been dealt with on that basis.
222 The reports of Dr. Louise Degenhardt were admitted and marked as Exhibits C, D and E. In addition, a report entitled "Illicit Drugs Report" was tendered and marked as Exhibit F in the judicial review proceedings.
223 The Crime Commission applied for an order that the Court determine as a separate question whether or not the two reports of Louise Degenhardt dated 1 November 2006 are relevant and admissible in the proceedings on the plaintiffs' amended summonses.
224 The authorities granted by the first defendant were given in circumstances in which it was anticipated and expected that the cocaine in question would likely not be recovered by the law enforcement officers involved in the controlled operations and therefore the cocaine (or some of it) could ultimately be consumed by either the persons to whom it was sold or other unknown persons.
225 Dr. Degenhardt's reports essentially state that the consumption of cocaine can seriously endanger the health or safety of a person who consumes it. The question as to the admissibility of her reports, in turn, depends upon the construction of s.7(1)(b) and its application to the facts established on the agreed facts and agreed documents (Exhibit B).
226 In the written submissions on behalf of the Crime Commission dated 1 November 2006, it is asserted that the words of s.7(1)(b) are unambiguous. However, notwithstanding, reference was made to the historical context in which the Act was enacted, including, in particular, the High Court's decision in Ridgeway (supra). Against the background of that case, it was submitted that the essential point for the purposes of the third question was that the State Act was calculated to allow, amongst other things, law enforcement officers authorised under an authority granted under that Act to engage in the illicit drug trade for the purposes of gathering evidence of drug trafficking offences. It was contended that s.7(1)(b) should accordingly be construed to facilitate that purpose.
227 The Crime Commission contended that in order to attract the prohibition prescribed by s.7(1)(b), the proposed operation must be one which involves conduct that is likely seriously to endanger someone's health or safety.
228 For that purpose, it was submitted, it is essential that there be a precise identification of the conduct authorised under each authority and to then determine whether or not that conduct was likely seriously to endanger someone's health or safety.
229 The relevant conduct was said, on behalf of the Crime Commission, to involve, firstly, the supply of cocaine by the law enforcement officer (Mark Standen) to "Tom" and, secondly, by way of specific example, conduct allegedly involving the supply of cocaine by "Tom" to the plaintiff Gedeon. As to the first, it is said that there was no likelihood whatever of any danger to anyone's health or safety. The supplying of cocaine did not, of itself, endanger health or safety. Had "Tom" thereupon (or later) consumed the cocaine then his conduct (of consumption) may have endangered "Tom's" health but the authorities did not purport to authorise "Tom" to engage in such unlawful conduct.
230 So far as the alleged supply by "Tom" is concerned, it is said again that there was no likelihood at all that that particular conduct would endanger anyone's health or safety.
231 A similar argument was put that, had, for example, a person to whom "Tom" supplied cocaine later consumed it, then once again, whilst such consumption may have endangered that person's health or safety, the authorities in question did not purport to authorise consumption of the cocaine.
232 It was further contended (written submissions, paragraph [10]):-
"The possibility, or even the probability, that some unauthorised, illegal conduct may occur after the completion of the controlled operation does not prevent the granting of an authority and does not attract the operation of s.7(1)(b) …"
233 It was also contended by the defendants that the legislative purpose and the history and the words of s.7(1)(b) could not be taken as indicating Parliament's intention to give the provisions of that section such a wide meaning as to make Dr. Degenhardt's reports relevant.
234 Finally, it was argued by the Crime Commission that s.6 required a variety of factors to be taken into account including the consequences of a controlled operation as part of the balancing exercise called for by s.6. Such matters were not relevant, however, to s.7. Accordingly, the evidence in Dr. Degenhardt's reports could have been relevant if the authorities had in fact authorised a person to consume cocaine but it was emphasised none of the authorities did so.
235 On this basis, the Crime Commission argued, the evidence had no relevance to the prohibition contained in s.7(1)(b). Accordingly it was submitted the evidence being irrelevant, meant that the reports of Dr. Degenhardt were inadmissible.
236 The preliminary point raised on behalf of the plaintiffs was that, as the outcome of the notice of motion is necessarily tied to the outcome of the "jurisdictional fact" question, it is premature to the judicial review hearing and was unnecessary.
237 Mr. Stratton and Mr. Robinson submitted that the construction contended for on behalf of the Crime Commission was "impermissibly narrow". The plaintiffs, in effect, submitted that the authorities were to be construed as not merely limited to the physical act of "handing over" cocaine to "Tom" and the handing over of that cocaine to a third person for money. It was submitted that the conduct envisaged by the "s.7 prohibition" was significantly wider than that when understood in the context of the powers in the Act and the regulations made under it and from the terms of the six authorities themselves.
238 It was put that, if the defendant's construction of s.7 were to be accepted, then it would permit law enforcement officers pursuant to a controlled operation authority:_
"… to hand a ticking bomb over to a person or persons known or suspected to be terrorists. Similarly, it would be the equivalent of them handing over a loaded gun to a person they know or suspect to be a killer."
239 I do not, with respect, see these examples as assisting the construction of s.7(1). Issues such as the physical handing over of a dangerous object could come within s.7(1)(b) if the object, in terms of the danger to which it could give rise, was a self-activating or self-executing one without intervening conduct by third persons. On the other hand, conduct involving the handing over of a loaded gun to a suspected killer in the second example would be a matter requiring careful consideration in the application, not in terms of s.7, but of s.6(3)(c).
240 A further example was advanced in the plaintiffs' written submissions. It was said that on the defendant's argument, had "Tom" cut the subject cocaine with a harmful or corrosive substance which could result in death if consumed, would mean that he would be protected. I consider, however, as was argued by Mr. Temby on behalf of the Crime Commission, that in that circumstance the danger to the health or safety of the persons consuming the substance would be properly considered to be the consequence of the unlawful activities of the person who added the harmful ingredient and not to the activity of handing over the cocaine before that occurred.
241 Mr. Robinson further contended that the terms of s.7(1) were unambiguous and that there was support for a broader construction to be given by reference to the second reading speech.
242 Mr. Robinson argued that the release of seven kilograms of cocaine in February/March 2005 where there was no provision whatever in the application or the authority or the operational plan to recover it meant that the plan involved the unrestricted release of the cocaine to members of the general public. Attention was drawn, in this regard, to Dr. Degenhardt's opinion that such a release of cocaine would be likely to cause harm to "some members of the Australian public".
243 Dr. Degenhardt, a clinical psychologist and a senior lecturer at the National Drug and Alcohol Research Centre, University of New South Wales, has conducted considerable research examining the use and harm related to the consumption of drugs in Australia. Her Ph.D. qualifications involved research into the associations of drug use problems and mental health problems in Australia.
244 There is, of course, no issue but that Dr. Degenhardt holds the requisite qualifications and experience and therefore, "specialised knowledge" within the meaning of s.79 of the Evidence Act and that the opinions expressed in her reports, Exhibits C and D, are wholly or substantially based on that knowledge. The real question is whether or not those opinions are relevant to the issue under s.7(1)(b).
245 In her report of 31 July 2006, Dr. Degenhardt states that it is "highly likely that harm would be caused to some members of the Australian public by the release of seven kilograms of cocaine onto the 'market'".
246 Dr. Degenhardt advances, inter alia, this opinion upon the basis of evidence which suggests that when drug supply is increased, so too does drug usage. She states that the release of seven kilograms onto the Australian market, which had already been removed from circulation by law enforcement operatives, would constitute such an increase in supply and usage. On that basis, Dr. Degenhardt expresses the opinion that the supply is likely to have had "the potential to cause increases in harms for some users" (p.2).
247 The admissibility of Dr. Degenhardt's reports turns on the provisions of s.55(1) of the Evidence Act 1995 (NSW). That section provides that evidence is relevant in a proceeding if it is evidence which could "… rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings".
248 The expression "a fact in issue", it may be taken as one which refers to issues in the proceedings, defined by substantive law and the pleading. In determining the application of that expression, not only ultimate issues, but other issues as to facts that are relevant to facts in issue may be considered to be "relevant evidence". See generally, Smith v. The Queen [2001] 206 CLR 650 at [6] per Gleeson, CJ., Gaudron, Gummow and Hayne, JJ.
249 The evidence of Dr. Degenhardt is sought to be relied upon as proof of the existence of a fact in issue in the proceedings, namely, as proof that the conduct authorised was "… likely to seriously endanger the health or safety …" of a participant or another person. As discussed earlier, that is a matter involving the proper construction of s.7(1)(b).
250 The phrase in s.7(1)(b) "… engaging in conduct that is likely to seriously endanger the health or safety …" is one, in my opinion, that involves the following concepts:-