Dowe v R [2009] NSWCCA 23 | Case summary

Dowe v R [2009] NSWCCA 23 | Case summary | Zoe

Factual overview 3 From December 2004 a Joint Task Force (the JTF) comprising the New South Wales Police, the Australian Federal Police (AFP) and the New South Wales Crime Commission (the Commission) was investigating the activities of a group of persons involved in the importation and supply of cocaine. The JTF received information from a Commission registered informer codenamed "Tom" that on 8 October 2004, 10kg of cocaine had been imported into Australia by a syndicate comprising, among others, one Shayne Hatfield (Hatfield). 4 Tom had sold 3kg of the cocaine imported in October 2004 prior to his leaving Australia in December 2004. He told investigators that he had buried the balance of 7kg at Wahroonga and that it was possible that Hatfield would want that cocaine sold prior to a further importation, which was anticipated to occur in late February 2005. On 6 February 2005 Tom met with Hatfield and one Gilbert Gedeon (Gedeon) and arrangements were made for Gedeon to purchase 2kg of the cocaine for $340,000, with the sale to take place on 8 February 2005. 5 On 7 February 2005 Tom took investigators to the area where the remaining 7kg of cocaine from the October importation had been buried. This was seized and taken to the Australian Government National Measurement Institute for analysis. It was thereafter in the possession of the Commission which was supervising the investigation. It was decided that the cocaine would be sold as if Tom were still an active player in the syndicate rather than working with the authorities, as was the case. 6 On 10 February 2005 Hatfield and Tom met with one Robert Pavan (Pavan). An arrangement was made for Tom to sell Pavan 1kg of the cocaine for $160,000. As it turned out this transaction did not proceed until 23 February 2005. 7 Pursuant to s 6(1) of the Law Enforcement (Controlled Operations) Act 1997 (the LECO Act), on 22 February 2005, Phillip Alexander Bradley (Bradley), Chief Executive Officer of the Commission, authorised Mark Williams Standen (Standen), a law enforcement officer within the meaning of the LECO Act, to conduct a "controlled operation" within the meaning of that Act. That operation was to be conducted in accordance with the plan of that operation accompanying the application for the authority made by Standen pursuant to s 5(1) of the LECO Act (the operation). The objective of the operation was to obtain evidence of criminal activity being the commission of offences under s 25(2) of the DMT Act. 8 The authority so granted was numbered 05/01038 (the Dowe Authority). It authorised Standen not only to conduct the operation but also to engage in a "controlled activity" being the possession of 1kg of cocaine and its supply to Tom. It also authorised Tom to engage in such an activity being the possession of 1kg of cocaine and its supply to Pavan and/or persons acting on his behalf or at his request, at Newtown, in exchange for $160,000. The Dowe Authority was in force for a period ending at 6.20pm on 25 February 2005. 9 Pursuant to the Dowe Authority, at about 8pm on 23 February 2005, police gave Tom a vacuum-sealed bag containing 1kg of cocaine which had been placed in a plastic David Jones bag. At about 8.30pm that evening Tom met Pavan in Newtown and a conversation occurred which was recorded by a listening device. Tom then walked to a lane opposite St. John Street, Newtown and a short time later a vehicle driven by one Ian Finch (Finch) reversed into the lane. The appellant was sitting in the passenger seat of that vehicle. 10 A short time later Tom walked into the lane, approached the vehicle and placed the bag containing the cocaine into its boot. He then removed a box containing $170,000 and the vehicle drove away. A short time later Finch stopped the vehicle then got out and opened the boot and checked the contents of the bag containing the cocaine. He returned to the driver's seat and drove to the Sydney Harbour Casino at Pyrmont where the appellant alighted from the vehicle and entered the Casino. Finch then drove home and parked the vehicle in his garage. 11 After Tom had placed the bag containing the cocaine in the boot of Finch's car and removed the money therefrom, he met up with Pavan a short time later and a financial transaction took place. On 24 February 2005 Finch met with Pavan. They went to the boot of Finch's car whereupon he handed Pavan the 1kg of cocaine. The police observed all of the foregoing. 12 Thereafter the police intercepted calls between Finch and Hatfield, the appellant and Finch, and between the appellant and Pavan. In particular, conversations took place between Finch and the appellant with respect to the quality of the cocaine that had been purchased from Tom on 23 February. On 4 March 2005, Pavan met with the appellant and thereafter the appellant rang Finch and a conversation again took place with respect to the quality of the cocaine purchased from Tom compared with that previously supplied. 13 On 6 March 2005 the appellant and Finch again spoke about the quality of the cocaine purchased from Tom compared to that supplied on earlier occasions. On 9 May 2005 JTF executed numerous search warrants and Finch, Gedeon, the appellant and Pavan, amongst others, were arrested and charged. Finch pleaded guilty and gave evidence for the prosecution.

The legislative scheme 16 The LECO Act makes provision for controlled operation applications (s 5), the determination of such an application (s 6), the form of authority (s 8), the duration of an authority (s 9), the variation of an authority (s 10), the cancellation of an authority (s 12), the effect of the authority (s 13) and the lawfulness of controlled activities and ancillary activities (ss 16, 17 and 18). Relevantly, the Act also expressly provides that certain activities cannot be authorised thereunder (s 7). 17 The provisions of the LECO Act of relevance for present purposes were as follows: " 3. Definitions authorised operation means a controlled operation for which an authority is in force and, in Parts 3 and 5, includes any operation in the nature of a controlled operation that is authorised by or under the provisions of a corresponding law. … controlled activity means an activity that, but for section 16, would be unlawful. controlled operation means an operation conducted for the purpose of: (a) obtaining evidence of criminal activity or corrupt conduct, or (b) arresting any person involved in criminal activity or corrupt conduct, or (c) frustrating criminal activity or corrupt conduct, or (d) carrying out an activity that is reasonably necessary to facilitate the achievement of any purpose referred to in paragraph (a), (b) or (c), being an operation that involves, or may involve, a controlled activity. … 5(1) A law enforcement officer for a law enforcement agency may apply to the chief executive officer of the agency for authority to conduct a controlled operation on behalf of the agency. … 5(2A) In any application, whether formal or urgent, the applicant must provide the following particulars: (a) a plan of the proposed operation, (b) the nature of the criminal activity or corrupt conduct in respect of which the proposed operation is to be conducted, (c) the nature of the controlled activity in respect of which an authority is sought, (d) a statement of whether or not the proposed operation, or any other controlled operation with respect to the same criminal activity or corrupt conduct, has been the subject of an earlier application for an authority or variation of an authority and, if so, whether or not the authority was given or variation granted. … 6(1) After considering an application for authority to conduct a controlled operation, and any additional information furnished under section 5 (3), the chief executive officer: (a) may authorise a law enforcement officer for the law enforcement agency concerned to conduct the operation, either unconditionally or subject to conditions, or (b) may refuse the application. … (3) An authority to conduct a controlled operation may not be granted unless the chief executive officer is satisfied as to the following matters: (a) that there are reasonable grounds to suspect that criminal activity or corrupt conduct has been, is being or is about to be conducted in relation to matters within the administrative responsibility of the agency, (b) that the nature and extent of the suspected criminal activity or corrupt conduct are such as to justify the conduct of a controlled operation, (c) that the nature and extent of the proposed controlled activities are appropriate to the suspected criminal activity or corrupt conduct, (d) that the proposed controlled activities will be capable of being accounted for in sufficient detail to enable the reporting requirements of this Act to be fully complied with. (4) In considering the matters referred to in subsection (3), the chief executive officer must have regard to the following: (a) the reliability of any information as to the nature and extent of the suspected criminal activity or corrupt conduct, (b) the likelihood of success of the proposed controlled operation compared with the likelihood of success of any other law enforcement operation that it would be reasonably practicable to conduct for the same purposes, (c) the duration of the proposed controlled operation. … 7(1) An authority to conduct a controlled operation must not be granted in relation to a proposed operation that involves any participant in the operation: (a) … (b) engaging in conduct that is likely to seriously endanger the health or safety of that or any other participant, or any other person, or to result in serious loss or damage to property. … (3) It is a sufficient defence to criminal or disciplinary proceedings arising from conduct that has been engaged in by the defendant in reliance on an authority that has been cancelled if the defendant satisfies the court or tribunal before which the proceedings are being heard: (a) that the defendant engaged in the conduct in good faith for the purposes of, and in the course of, a controlled operation for which the authority had been in force, and (b) that, had the authority been in force when the defendant engaged in the conduct, the conduct would have been lawful by operation of section 16, and (c) that the defendant was unaware, and could not reasonably be expected to have been aware, that the authority had been cancelled. 13 While it has effect, an authority for a controlled operation: (a) authorises each law enforcement participant to engage in the controlled activities specified in the authority in respect of the law enforcement participants, and (b) authorises each civilian participant (if any) to engage in the particular controlled activities (if any) specified in the authority in respect of that participant. … 16 Despite any other Act or law, an activity that is engaged in by a participant in an authorised operation in the course of, and for the purposes of, the operation is not unlawful, and does not constitute an offence or corrupt conduct, so long as it is authorised by, and is engaged in accordance with, the authority for the operation." 18 Provision is also made in Part 1AB of the Crimes Act 1914 (Cth) (which includes s 15M) for the authorisation of controlled operations for obtaining evidence with respect to Commonwealth offences. Both the LECO Act and Part 1AB contain parallel provisions for the conduct of controlled operations. It was common ground in the present case that no certificate for such an operation under s 14M of the Commonwealth legislation had been obtained. It was also common ground that both Part 1AB and the LECO Act were enacted as a result of the judgment of the High Court in Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 (Ridgeway). It will be necessary to refer further to this decision later in these reasons. Finally it was also common ground that the protection of s 16 of the LECO Act did not extend to any offence under Commonwealth law.

(4) whether the Crown had established despite any illegality/impropriety, that the evidence would nevertheless be admitted pursuant to the discretionary provisions of s 138. 24 Her Honour answered the first question, insofar as it related to the improper handling of the cocaine, in the affirmative. She held (at [15]) that the cocaine was a prohibited import so that by the operation of s 229(1)(b) of the Customs Act 1901 (Cth) it was forfeited to the Crown. Having been so forfeited, it became "special forfeited goods" within the meaning of s 183UA(1) of that Act. After analysis, the 7kg of cocaine came into the possession of Standen who, by coincidence, was an officer of the AFP. However, the cocaine was an AFP exhibit to which the AFP Exhibits Guidelines applied. Her Honour found (at [19]) that no consideration was given to following those Guidelines although Standen was aware of them as well as the Commonwealth legislation relating to the authorisation of controlled operations. 25 Her Honour's finding with respect to Standen's evidence on this issue was as follows: "20. When it came to applying for a controlled operation authority, according to Mr Standen, passing consideration was given to seeking a Commonwealth authority under Part 1AB of the Crimes Act 1914 but that option was rejected because the proposed controlled operation ' had the flavour of a State supply'. Given that, prior to applying for any controlled operation authority, the AFP had been excluded from the process of determining how to deal with the 7kg of cocaine, I find that no serious consideration was given to seeking a Commonwealth authority. Had the matter been given serious consideration, then it would have become apparent that no Commonwealth authority could be granted because the cocaine was unlikely to remain under the control of the police at the end of the operation: s 15M(3 ) Crimes Act 1914. 21. In short, Mr Standen and other officers attached to the joint task force failed to acknowledge that the drug was forfeited to the Commonwealth Crown and failed to treat it in accordance with the AFP Exhibits Guidelines, which apply to Commonwealth drug exhibits." 26 Standen was also a special officer for NSW and had the duties of a NSW police officer. He was aware, her Honour found, of the NSW legislation with respect to the processing of the cocaine as a NSW drug exhibit. However, he failed to process the drug in accordance with NSW drug exhibit procedures. This, her Honour held (at [26]), was not unlawful but was, at most, an impropriety. Applying the relevant authorities on the meaning of "impropriety" in s 138 of the Evidence Act, her Honour held that Standen's conduct whereby he failed to manage the 7kg of cocaine under either the NSW or Commonwealth schemes for the management of drug exhibits, so qualified as it was deliberate and was clearly inconsistent with minimum standards. 27 With respect to Question 2, she noted (at [33]) the concession of the Crown that unless the police and Tom could establish a "reasonable excuse" for possession of the cocaine under s 233B(1AAB) of the Customs Act, up until the issue by the Dowe Authority, the possession of the drug contravened s 233B(1)(iv) and/or (v) of that Act. However, her Honour held (at [37]) that prior to 22 February 2005 (being the date of issue of the Dowe Authority), there was no "reasonable excuse" for the conduct that was otherwise rendered unlawful by s 233B of the Customs Act. 28 Nevertheless, having found that it was appropriate to deal with the cocaine under NSW legislation, her Honour determined (at [41]) that as a consequence of the decision of Hall J in Dowe No. 1, the existence of a valid NSW controlled operation authority not only provided protection in relation to conduct which would otherwise have involved State offences, but also provided a "reasonable excuse" for what would otherwise have been unlawful conduct under the Customs Act. She therefore concluded that "between 7 February and the grant of the controlled operation authority on 22 February, police possession and handling of the drug was illegal but from the [date] of the grant of authority it was not unlawful." 29 As I understand her Honour's reasons, her finding of "reasonable excuse" for the purposes of the Customs Act was referable only to the period subsequent to the grant of the Dowe Authority. 30 With respect to Question 3, her Honour noted (at [45]) that challenged evidence would be excluded only where there is a causal connection between the illegality/impropriety and the obtaining of the impugned evidence. The former must have "produced" the latter. Her Honour then held: "46. The impropriety of failing to follow the Federal or State scheme for the management of drug exhibits did not impact upon the events of 23 February, let alone 'produce' any significant evidence. On 2 February, the NSW Police Commissioner approved in principle the course of conduct which was followed on 23 February. I infer that, had a s39RA direction [under the DMT Act ] been sought, it would have been granted. 47. Nor did the offences against the Customs Act and the DMT Act impact upon the events of 23 February. For practical purposes, the events of 23 February and thereafter were unaffected by the preceding failure to adhere to the NSW scheme for dealing with drug exhibits, which was itself an impropriety, and which resulted in the police possession of drugs being illegal prior to the grant of the controlled operation authority. 48. The accused has not established that any relevant evidence was 'obtained' improperly or in contravention of Australian law, or 'in consequence of' an impropriety or contravention of an Australian law." 31 In the foregoing circumstances her Honour found it unnecessary to consider Question 4 insofar as it involved the exercise of the discretion contemplated by s 138(1). However, she did comment (at [49]) that "there are many factors which may have militated in favour of admitting evidence of the events of 23 February and thereafter. Inter alia, the relevant offences [with which the appellant was charged] are very serious and no mala fides has been demonstrated on the part of the police." 32 Having rejected the appellant's application to exclude the evidence obtained prior to the issue of the Dowe Authority on 22 February 2005, the trial continued and at the close of the Crown case on 21 May 2007, her Honour directed the jury to return verdicts of not guilty in relation to the first two counts on the indictment and, with respect to the third count, discharged the jury and ordered a retrial.

The appeal from the decision of Hall J 33 On 9 August 2007, the Court of Appeal comprising Spigelman CJ, Basten JA and Handley AJA, heard appeals by the appellant and Gedeon from the decision of Hall J upholding the validity of the Authorities. On 19 October 2007 both appeals were dismissed by majority (Spigelman CJ, Handley AJA agreeing) and Basten JA dissented: Dowe v Commissioner of New South Wales Crime Commission & Anor; Gedeon v Commissioner of New South Wales Crime Commission & Anor [2007] NSWCA 296; (2007) 177 A Crim R 44. 34 Before the Court of Appeal the challenge to the validity of the Authorities was founded upon s 7(1)(b) of the LECO Act which prohibited the granting of an authority to conduct a controlled operation that, relevantly, involved any participant in the operation "(b) engaging in conduct that is likely to seriously endanger the health or safety of that or any other participant, or any other person …" 35 It was contended that the question posed by s 7(1)(b) with respect to whether or not any authorised conduct was "likely to seriously endanger the health or safety" of persons was a jurisdictional fact in the sense that it was a matter for the Court, on the evidence before it, to determine. That contention was rejected by the Chief Justice (at [32]) who held that the precondition in s 7(1)(b) operated "as an emphatic instruction to the decision-maker but it is not a jurisdictional fact of a character which must exist in truth, and may be determined by a court on the basis of evidence adduced to the court but which was never before the decision-maker." 36 The alternative basis of challenge was one of Wednesbury unreasonableness. The Chief Justice identified two issues under this head. The first was whether the word "conduct" in s 7 was to be narrowly interpreted so as to refer only to the act of handing over the cocaine and without reference to its subsequent use. The second was whether the demanding test of irrationality or unreasonableness was met in the particular circumstances of the case. 37 With respect to the first issue the Chief Justice observed (at [49]): "If the subsequent distribution to end users of the cocaine fell within the scope of the prohibited 'conduct' in which a participant would engage pursuant to an authority, within the meaning of s7(1)(b), it was not, and could not be, contended that the health of those users was not 'seriously endangered'. The only issue was whether his Honour was correct to confine the scope of the conduct so that it did not so extend." 38 The critical issue, therefore, was the identity of the persons upon whom the relevant effect was to occur. That turned upon the words "any other person" in s 7(1)(b). At [54] the Chief Justice held: "The words ' any other person ' should be read ejusdem generis with the reference to 'participants' in the controlled operation so as to be confined to persons proximate to, that is, in the physical vicinity of, the operation upon whom the authorised conduct directly impinges."

This finding was contrary to that of Judge Murrell to which I have referred at [27] above. 45 The trial judge then considered whether, if he be wrong with respect to his finding on the issue of "a reasonable excuse", the pre-22 February evidence was obtained "in consequence of" a contravention of an Australian law within the meaning of s 138(1)(b) of the Evidence Act (Question 3 before Judge Murrell). On that issue he inclined to the view that the necessary causal connection was established "on the rather simplistic basis that if it was not for the possessing and the conveying of the cocaine by the authorities and their agent, much of the evidence that the Crown now seeks to rely upon to establish the guilt of each of the accused would not have been obtained." 46 This finding was inconsistent with that of Judge Murrell to which I have referred at [30] above. His Honour then addressed the issue posed by s 138(1) as to whether the desirability of admitting the evidence outweighed the undesirability of admitting it given the manner in which it had been obtained (Question 4 before Judge Murrell). In so doing he referred in some detail to the evidence given on the voir dire before Judge Murrell, particularly by Assistant Commissioner Michael Phelan (Phelan) of the AFP on the one hand and Standen on the other. His Honour referred to Phelan's evidence to the effect that whilst the AFP would not accept the appropriateness of the proposed trafficking in cocaine, it regarded the matter as one for the NSW police and the Commission. As far as Phelan was concerned, he had no issue with the illegality of it. He said "As far as I was concerned, it was legal at the time". His Honour considered that Phelan was saying that whilst the AFP would not countenance itself being involved in the proposed operation, he saw nothing wrong with the State authorities conducting the operation for the purpose of apprehending those involved in an offence against State law. 47 The trial judge then referred to Standen's evidence to the effect that although the Commonwealth authorities had some jurisdictional control over the cocaine, nevertheless what was involved was the conduct of State authorities who had jurisdiction in relation to State offences and that it was in respect of the investigation of the latter that he, Standen, had sought and obtained the Dowe Authority. His Honour also referred to Standen's evidence that he did not think it was necessary to obtain a Commonwealth controlled operation authority. He understood Standen's evidence to be that he had turned his mind to that possibility but had made a deliberate decision that such an authority was not required. 48 His Honour next referred to the evidence of Standen whereby he agreed that possession of a prohibited import was unlawful under Commonwealth law in the absence of a reasonable excuse. However, he, Standen, did not at any stage consider that he might be in breach of that law. 49 Much was made before the trial judge of the question as to whether there was a dispute between the Commonwealth and State authorities regarding the proposed controlled operation involving the sale of the cocaine. His Honour considered that the gist of what Standen had said was that he was clearly aware that the AFP would not have any direct involvement in such activity but that their opposition did not extend to withdrawing their officers from the JTF. They were content to have them continue to act in the background in what might be described as passive support of the operation. 50 It was submitted at trial on behalf of the appellant's co-accused (and adopted by the appellant) that his Honour should find that Standen deliberately chose not to obtain an appropriate controlled activity authority from the Commonwealth authorities because he knew that such an authority would not be granted. Hence he either deliberately or recklessly flouted the law in this respect. It was submitted that to permit the pre-22 February evidence to be given in these circumstances would be to give tacit curial approval to deliberate or reckless illegal behaviour that should not be countenanced. It was submitted that the considerations referred to in s 138(3) such as the probative value of the evidence and the other matters therein referred to which might otherwise militate in favour of admitting the evidence "fell by the wayside" when compared with how easily the law could have been complied with by Standen in light of his deliberate decision not to do so. 51 The trial judge rejected these submissions in the following terms: "I am not satisfied that Mr Standen deliberately chose not to obtain a controlled operation authority. In my view his focus was, in the main, on obtaining sanction in respect of activity that might otherwise be prescribed under New South Wales criminal law and that is well understandable as the activity envisaged fell squarely within the confines of that law. It would be, in my view, a remarkable state of affairs that New South Wales investigating officers should obtain Commonwealth sanctions whenever contemplating controlled operations involving the supply within New South Wales of prohibited drugs that could be expected to have been imported, or highly likely to have been imported, such as heroin and cocaine, particularly when the target of such operations are persons suspected of involvement not in any Commonwealth criminal offence but of purely State criminal offences." 52 On the issue of whether he should exercise his discretion to admit the evidence, the trial judge said: "Given my view of Mr Standen's approach to the matter as indicated earlier, I am clearly convinced that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that was obtained in the way it wa[s]. I am not of the view that the contravention of the law, if there was one, was either deliberate or reckless. The probative value and the importance of the evidence is high and it relate to the alleged commission of very serious offences by persons suspected of ongoing involvement in such serious criminal activity. The gravity of the contravention, if there was one, is minor in the scheme of things in that it may at best be regarded as an innocent and understandable mistake as to the state of the law. …" 53 Finally, his Honour summarised his views in the following terms: "To summarise, my first view is that there was no contravention of Australian law and so the provisions of s 138 are not engaged. If however, I am wrong in this view I am steadfastly of the view that it is appropriate in the circumstances of this case to exercise the discretion to admit the evidence nonetheless." 54 Although the trial judge's reasons for admitting the evidence objected to are dated 15 November 2007, the application to exclude the evidence was rejected by his Honour on 31 October 2007 upon the basis that he would give his reasons at a later time. The trial then proceeded until 15 November 2007 when the jury convicted the appellant of the offence with which he was charged.

The Dowe Authority is held invalid by the High Court 55 On 16 November 2007 (being the day following his conviction), the appellant filed an application for special leave to appeal to the High Court against the decision of the Court of Appeal given on 19 October 2007. The special leave application was, on 18 April 2008, referred by Gleeson CJ and Gummow J to a court of six Justices which heard the application on 30 July 2008 and delivered judgment on 4 September 2008: Gedeon v Commissioner of New South Wales Crime Commission; Dowe v Commissioner of New South Wales Crime Commission [2008] HCA 43; (2008) 82 ALJR 1465. 56 In a joint judgment the Court granted special leave to appeal and declared each of the Authorities invalid. Three submissions were advanced to the Court by the appellant and Gedeon. The first was that the prohibition in s 7(1)(b) of the LECO Act was concerned with the existence of the Commissioner's power to grant an authority rather than with the exercise of a discretion to do so. It was, therefore, a "jurisdictional fact". 57 The second was that the reference in s 7(1)(b) to "any other person" was not, contrary to the view taken by the majority in the Court of Appeal, confined to persons in the physical vicinity of the authorised conduct; rather, that phrase encompassed harm to other persons which was the foreseen and expected consequence of the conduct in question. 58 The third submission was to the effect that s 16 of the LECO Act did not render lawful conduct that, while unlawful at common law or under NSW statute law, was also made unlawful by Commonwealth law. The Court rejected this submission. Nevertheless it recognised (at 1473 [41]) that there was a need for approval under both the State and Commonwealth statutory regimes if full protection for those involved was to be obtained. Further, the absence of a necessary approval under either scheme would be sufficient to raise at trial the operation of s 138 of the Evidence Act. However, s 138 apart, authority under the LECO Act (if otherwise valid) was effective without a certificate under s 15M of the Crimes Act 1914 (Cth). 59 On the other hand, the Court upheld the first two submissions. At [46] it noted that s 7(1) was expressed in terms of prohibition and thus delimited the scope for any exercise of authority by a chief executive officer. The provision conveyed the notion of a contraction in the content of what would be the power otherwise conferred by s 6. If it be established upon a "collateral" attack decided by way of a ruling at trial under s 138 of the Evidence Act that, for example, the authority in question was in relation to a proposed operation involving a participant engaging in conduct that was likely to seriously endanger the health or safety of that or any other participant or any other person, then the grant of the authority was beyond power. 60 Notwithstanding the Chief Justice's construction of the words "any other person" which I have set out in [38] above, in the High Court counsel for the Commission submitted that the expression "any other person" was limited to those involved in the operation in question. However, the Court noted (at [52]) that the emphasis in s 7(1)(b) was upon exposure to the risks of danger or peril rather than upon the materialisation of that risk. After referring to the passage from the judgment of the Chief Justice which I have recorded at [37] above, the Court noted (at [55]) that s 7(1)(b) used the term "likely" and did not speak in terms of the serious endangerment as a necessary consequence of engagement in the conduct authorised. 61 I mention these findings as the evidence of Standen tendered at the trial and upon which the appellant relies in the present appeal referred to the fact that cocaine was far less dangerous than other drugs such as heroin and that no deaths from cocaine had ever been recorded. I shall return to this and other evidence of Standen relating to his understanding of s 7(1)(b) later in these reasons. 62 The Court concluded this issue in the following terms: "57. A reasonable person in the position of the defendant would have foreseen that the conduct of the activities the subject of the Authorities would involve a risk of seriously endangering the health of some at least of the numerous class of end purchasers of the cocaine. The contrary is impossible to reconcile with the legislative judgment, reflected both in federal and State law, prohibiting respectively the importation, supply and possession of such drugs. That prospect was sufficient to attract, as the legislative response to such a situation of risk, the prohibition in par (b) of s 7(1) of the LECO Act. 58. The submission by the Commission that the phrase "any other person" is limited to participants in the operation reads down the ordinary meaning of that phrase and does so with the consequence of leaving the State exposed to the possibility of civil liability to a range of third parties, a hazard the legislature wished to avoid."

The appellant's ground of appeal 63 The appellant's sole ground of appeal was stated in the following terms: "There was a miscarriage of justice as the trial of the applicant proceeded on the basis that the supply to him and others of 1 kilogram of cocaine was pursuant to a lawful controlled operation authority when in fact that authority and the subsequent supply were improper, unlawful and in contravention of Australian laws: as a consequence evidence relating to that operation should not have been admitted at trial." 64 It was submitted that the effect of the High Court's decision declaring the Dowe Authority invalid was that the supply by Tom of the 1kg of cocaine was, in terms of s 138(1) of the Evidence Act, in contravention of an Australian law, namely s 25(1) of the DMT Act, being the same section pursuant to which the appellant himself was charged. It was submitted that there was, in fact, a deliberate, calculated, reckless and wilful breach not only of the Customs Act but also of the DMT Act. This was because Tom, at the behest and with the involvement of the Commission and its officers, had undertaken what they knew, absent a valid authority under the LECO Act, to be the supply of a commercial quantity of cocaine in breach of ss 10 and 29 of the DMT Act. 65 It was thus submitted that in circumstances where law enforcement officers, encouraged by those in higher authority (being the Commissioner of the Commission as well as the Commissioner of Police), had engaged in illegal conduct, considerations of public policy relating to the administration of criminal justice required the exclusion of the post-22 February evidence pursuant to the discretion to exclude such evidence under s 138(1). 66 As in Ridgeway it was submitted that the conduct of the Commission's officers in the present case, absent a lawful authority, involved grave and calculated criminality which had received approval at the highest level of the Commission and New South Wales Police Service. The unauthorised operation involved the creation of the actual elements of the offence with which the appellant was charged, with the consequence that there was a selective prosecution of the appellant rather than the perpetrators of the unlawful activity which led to that charge in the absence of any real indication of official disapproval or retribution. 67 The appellant's written submissions thus stated: "51. What was done was serious criminal conduct. The achievement of the objective of the criminal conduct, the sale of 1 kilogram of cocaine, combined with the clear breach of the LECO Act and Customs Act make this case an extreme one in which the considerations favouring rejection of the evidence on public policy grounds are overwhelming. Against those considerations, one must weigh the legitimate public interest in the conviction and punishment of the appellant for the criminal offence of which the jury found the applicant guilty. 52. Had the applicant been in a position to challenge in the proceedings the legality of the controlled operation, and had the trial judge been in a position to rule on the point, the evidence would inevitably be rejected on public policy grounds." 68 In his written reply to the submissions of the Crown, the appellant indulged, with respect, in a deal of hyperbole. Those submissions may be summarised as follows:

(i) In the foregoing circumstances there must be consequences for so serious a breach of the limitations placed by the Parliament on the law enforcement agencies under the LECO Act . The balance of competing interests clearly favoured rejection of the evidence to ensure obedience to the law by an agency that had breached the extraordinary powers given to it to enforce the law. This breach of the law was exacerbated by the distribution of 1kg of cocaine to end users for their consumption with potential risk to their health and safety. 69 During the course of oral argument on the appeal, the question was raised as to this Court's power to entertain what was referred to as an original exercise of the power under s 138(1) to determine whether the impugned evidence should be excluded or admitted. This was because the s 138 application before the trial judge had proceeded upon the basis that the Dowe Authority was valid. Consequently the application before his Honour was confined to an attempt to exclude the evidence of events prior to the grant of that authority on 22 February 2005. The position now faced by this Court involved the exclusion of the evidence obtained after that date which would result, so it was submitted, in an entirely different dynamic with respect to the discretionary factors to be taken into account under s 138(1) and, in particular, s 138(3). 70 The appellant further submitted that this Court could exercise an original jurisdiction under s 138 at least if it was of the view that it was inevitable that the impugned evidence should be excluded and that it would be futile to suggest otherwise. Alternatively, if the Court was not prepared to so find, then the appellant's conviction should be quashed and a new trial ordered wherein the totality of the alleged unlawful conduct on the part of the law enforcement agencies could be considered afresh in circumstances where the evidence would not necessarily be confined to that which was before the trial judge. In particular, I infer that in any new trial there would be tendered the evidence in the committal proceedings conducted in March 2006, particularly that of Bradley and Standen. That evidence was not before the trial judge although I am prepared to assume that some of it was repeated in Standen's evidence on the voir dire before Judge Murrell, which was before the trial judge. 71 However, there were aspects of the committal evidence which were not relevant either before Judge Murrell or Judge Hulme as it related to matters which were then academic, at least temporarily, as a consequence of the decisions of Hall J and the Court of Appeal. That evidence related in particular to Standen's understanding of or attitude towards the requirements of s 7(1)(b) of the LECO Act and which I accept as being relevant to the application of s 138 now pressed upon this Court. I shall refer further to this evidence below. 72 In response to the appellant's submissions the Crown submitted that the relevant impropriety resulting from the decision of the High Court was neither deliberate nor reckless. To the contrary, the controlled operation was undertaken in the genuine belief that the Dowe Authority was valid. Both the police and the relevant officers of the Commission acted in good faith in the belief that they were at all times acting lawfully under a validly granted controlled operation authority. The Commissioner, Bradley, believed that such an authority could and should be issued by him and, as the High Court noted (at [47]), the decision of Hall J and the majority of the Court of Appeal "appears to have proceeded from a misconstruction of the statutory provisions, in particular of the interrelation between sections 5, 6 and 7." 73 The Crown further submitted that the fact that the Dowe Authority was declared invalid and related to significant evidence did not render the conduct of the relevant officers as involving "grave and calculated criminality". Such a submission confused the concepts of deliberately undertaking an act with deliberately doing so illegally. The present case, it was submitted, fell within the former category. Here the act of supplying the 1kg of cocaine was clearly intended but a breach of the law was not. Indeed the relevant authorities held a positive view that they were not acting unlawfully at the time. In fact, they were acting on an understanding of the law which had been subsequently upheld by three Judges of the Supreme Court including the Chief Justice, albeit that the High Court had determined otherwise. They had a genuine and justifiable belief in the validity of the authority under which they acted, albeit that it ultimately turned out to be mistaken.

"It has, at all times, been common ground that the importation of the heroin was contrary to s 233 B (1)(b) of the Act which provides that any person who imports into Australia any prohibited imports to which s 233 B applies is guilty of an offence under the section. The person who unlawfully brought the heroin into Australia was Chong who, on the facts as disclosed at the trial, was guilty of an offence under s 233 B (1)(b) in that he imported into Australia prohibited imports to which s 233 B of the Act applied. In truth, however, the whole of the unlawful importation was arranged by and under the auspices of the Australian Federal Police and the police involvement reached upwards to a high level of command. Realistically speaking, the illegal importation of the heroin was 'controlled' and effected (through the services of Chong) by the Australian Federal Police. Clearly enough, the objective acts of the members of the Australian Federal Police directly involved in the importation of the heroin by Chong came within s 233 B (1)(d) of the Act which provides that any person who 'aids, abets, counsels, or procures, or is in any way knowingly concerned in, the importation, or bringing, into Australia of any prohibited imports to which this section applies' is guilty of an offence. In that regard, the Commonwealth Director of Public Prosecutions expressly conceded that the Australian authorities 'had either counselled or at least were prepared to aid and abet' the illegal importation. The effect of s 235 of the Act was that, in circumstances where a trafficable quantity of heroin was involved, the maximum penalty for each of the offences presumably committed by Chong and members of the Australian Federal Police was imprisonment for twenty-five years and a fine of $100,000." 75 Before the High Court Ridgeway had submitted that the effect of the police involvement in the illegal importation of the heroin was that the evidence of his guilt should have been excluded on discretionary grounds. This case was decided before the coming into force of the Evidence Act. Nevertheless, at least since Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, it had been the common law in Australia that a trial judge had a discretion to exclude prosecution evidence on public policy grounds in circumstances where it had been obtained by unlawful conduct on the part of the police. That discretion was described in the joint judgment in Ridgeway (at [31]) in the following terms:

"The relative weight to be given to [the positive and negative considerations] will vary according to the circumstances of the particular case. Thus, the weight to be given to the public interest in the conviction and punishment of those guilty of crime will vary according to the degree of criminality involved. The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence - the public interest in maintaining the integrity of the courts and in ensuring the observance of the law and minimum standards of propriety by those entrusted with powers of law enforcement - will vary according to other factors of which the most important will ordinarily be the nature, the seriousness and the effect of the illegal or improper conduct engaged in by the law enforcement officers and whether such conduct is encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings." 77 A further significant observation of their Honours relevant to the present case was the following (at [39]): "References in this judgment to an offence being 'procured' by illegal conduct on the part of law enforcement officers are intended to refer to two distinct, but possibly overlapping, categories of case. The first category consists of cases in which the police conduct has induced an accused person to commit the offence which he or she has committed. In that category of case, the public interest in the conviction and punishment of those guilty of crime is likely to prevail over other considerations except in what we would hope to be the rare and exceptional case where the illegality or impropriety of the police conduct is grave and either so calculated or so entrenched that it is clear that considerations of public policy relating to the administration of criminal justice require exclusion of the evidence. The other category of case is where illegal police conduct is itself the principal offence to which the charged offence…" 78 The Crown submitted and I agree that the facts in Ridgeway were clearly distinguishable from the present case in the following respects: (a) At all material times the relevant law enforcement officers genuinely believed that there was a valid authority in place;

(f) The appellant was neither procured nor entrapped into committing the offence upon which he was convicted. 79 During the course of oral argument it became apparent that the focus of the appellant's submissions was upon s 7(1)(b) of the LECO Act and, in particular, the deliberate risk that was taken by Standen that the cocaine would be distributed to end users within the community. It was further submitted that as a matter of public policy, the fact that a mistake was made in the present case which led to the distribution of 7kg of cocaine to the community was so grave as to dictate that the relevant discretion should be exercised to exclude the post-22 February evidence. In this context it was submitted that the Commission's interpretation of s 7(1)(b) was unreasonable notwithstanding that it had been held to be correct by three judges of the Supreme Court including the Chief Justice. 80 The appellant placed particular reliance upon s 138(3)(d) of the Evidence Act, which requires a court to take into account the gravity of the breach of the law which engages s 138(1). In the present case it was submitted that the offence committed by the Commission carried a life sentence. Although the Commission's motivations might have been pure, and may have been based upon a wrong interpretation of s 7(1)(b), nevertheless a serious crime was committed which had extremely serious consequences. 81 However, the appellant conceded that it was clearly in the public interest that the appellant be convicted as he had chosen to involve himself in the supply of 1kg of cocaine. However, the gravity of the crime committed by the Commission and its agents was one that trumped that of the appellant being convicted. Again, emphasis was placed upon the submission that 7kg of cocaine was intended to be supplied which would inevitably end up in the community causing serious endangerment to its members. 82 Towards the end of the hearing senior counsel for the appellant was referred to a number of assertions in his written submissions in reply to those of the Crown with a request that he provide references to the evidence that supported the assertions in question. 83 In a document forwarded to the Court two days after the conclusion of the hearing, senior counsel for the appellant referred to the assertions contained in paras 7, 9, 10 and 11 of his written submissions in reply and then provided transcript references in the appeal books said to be in support of those assertions. The following 22 "propositions" with appeal book references (which I have omitted), were then advanced in the following terms (the numbering is mine):

Breach of Commonwealth law - AFP deliberately excluded after 2/2/05." 84 A number of the above "propositions" were also advanced before the trial judge with respect to the application made to him under s 138(1). I refer in particular to the AFP's attitude to the proposed controlled operation. The breach of Commonwealth law absent the obtaining of a certificate under s 15M of the Crimes Act 1914 (Cth) was also a matter that was, to a greater or lesser degree, agitated before the trial judge. 85 The "propositions" which were not relevant before the trial judge due to the decisions of Hall J and the Court of Appeal, were those that I have numbered 1, 2, 3, 5, 9, 18 and 19. The evidence in support of those allegations was contained in the evidence given in the committal proceedings in March 2006 before the challenge to the validity of the Authorities was instituted. That evidence established that both Standen and Bradley were aware that there was a probability, if not certainty, that much of the cocaine would be sold into the community to end users although there was the possibility, depending upon the particular circumstances, that some could be retrieved. In fact 1kg was recovered, although the usual plan was to see how events unfolded to determine whether there was any safe opportunity to retrieve the cocaine which had been supplied. Thus the following exchange took place in Standen's evidence: "Q. If it were possible to retrieve the kilo of cocaine without blowing Tom's cover then that part of the plan, but otherwise the plan was to let the cocaine run as it were, to be [disseminated] up to its ultimate end user, correct? A. Correct." 86 In Standen's re-examination the following evidence was elicited: "Q. You were asked some questions earlier concerning general safety issues, we might call them that, in relation to the distribution of cocaine. Did you or others at the Commission to your knowledge weigh up the ramifications of not proceeding in this way? A. We did. Yes, we did is the short answer. The volume of cocaine available on the streets is far in excess of the amount involved here and our suspicion, information, belief, whatever, that the people we were likely to catch through this process may well be responsible for much larger quantities of cocaine being made available on the streets than what was involved in these controlled operations." 87 With respect to Standen's understanding of s 7(1)(b), the following further evidence given at the committal hearing is of significance in the present context: "Q. …so as far as you were concerned this operation was not going to endanger the health of any other person by way of those drugs ending up on the street, that's your position isn't it? A. So far as the participants in the controlled activity correct, and not by comparison to as I said the other options.

A. It's a view that the words or any other person are to be read in the context of the entire paragraph or the section which relates to the conduct of the operation, controlled activity, the participants such as to ensure that an undercover officer wasn't to be shot or .. (not transcribable).. was going to be thrown off a cliff or whatever it might and it relates to the actual controlled activity as opposed to what might happen months down the track as in the case of this cocaine." 91 Although Bradley also gave evidence at the committal proceedings, the appellant did not refer the Court to any of his evidence going to the issue concerning s 7(1)(b). This is so notwithstanding that in the Dowe Authority Bradley stated in cl 5 thereof that he was satisfied as to the following: "(b) No participant will engage in conduct that is likely to seriously endanger the health or safety of that or any other participant, or any other person, or to result in serious loss or damage to property." 92 Notwithstanding that Bradley was merely repeating the provisions of s 7(1)(b) it does not appear that he was cross-examined to suggest that he did not hold an honest and genuine belief in the correctness of that statement of satisfaction. A similar statement was made by Standen in para 16 of his application for the Dowe Authority dated 23 February 2005, and which he refers to in the penultimate answer referred to in the exchange which I have recorded at [88] above. 93 In my opinion the evidence to which I have referred amply supports the Crown's submission to the effect that, relevantly, Standen had a genuine belief that s 7(1)(b), on his understanding of it, did not prohibit the granting of the Dowe Authority. He was joined in this understanding, as I have observed, by Hall J and the majority of the Court of Appeal. I would therefore reject the appellant's submission that there was anything unreasonable, reckless or careless in the interpretation of s 7(1)(b) which Standen adopted. 94 Further, the evidence to which I have referred above established that as far as Standen was concerned, he did not consider that actual harm would, or was likely to be, caused by the distribution of the 1kg of heroin the subject of the Dowe Authority to end users as that quantity would, no doubt, be broken up into much smaller parcels. 95 In the foregoing context the following observation of Magistrate Heilpern, who presided at the committal proceedings, is apposite. In response to a submission that the Dowe Authority was invalid with the consequence that the conduct of the operation which was undertaken pursuant to it was illegal, the learned Magistrate observed: "But if you're saying let's imagine quite clearly - well hypothetically let's say I accept that on the face of it there is a problem with the warrant in that the person who signed the warrant says that he's satisfied there is to be no harm, and quite clearly from the evidence that I've had from Mr Standen it was not an unexpected outcome, and it was a probable outcome and that the cocaine would end up at street level, and we've established that there is somewhat around 100,000 discrete dosage uses, or units, as a result of the police operation, what difference does it make to what the application says?" 96 There is no doubt that, as it turned out, the conduct of the operation which was purportedly sanctioned by the Dowe Authority resulted in the unintentional commission of an offence, and a serious offence at that. However, I would reject the various epithets attributed to that conduct by the appellant namely, that a calculated risk was taken; that the interpretation placed on s 7(1)(b) was made recklessly or unreasonably; that Bradley and Standen were, at best, reckless as to whether a breach of the law would occur by the supply by Tom of 1kg of cocaine to Finch or that the conduct of the operation was deliberate in the sense that there was an intentional breach of the law or a reckless disregard of whether the carrying out of the operation under the Dowe Authority would result in the commission of an offence. 97 For the foregoing reasons the present case, in my opinion, is clearly distinguishable from Ridgeway. Not only did the relevant activities fall into the first category of cases referred to by the plurality in the passage from their judgment, which I have recorded at [78] above, but also the circumstances in which the illegal conduct was engaged in did not involve any mala fides on the part of those concerned up to the highest level. On the contrary, at all material times the relevant law enforcement officers had a bona fide belief that they were acting lawfully having obtained an authority which, had it been valid, had the effect of rendering the controlled operation undertaken according to its terms, lawful. 98 So far as the other matters relied upon by the appellant are concerned, generally speaking they were agitated before the trial judge on the s 138(1) application whose decision thereon is not the subject of challenge. Furthermore, I see no reason why the appellant should be afforded the opportunity of re-agitating his application to the trial judge based on the voir dire evidence before Judge Murrell with respect to the pre-22 February 2005 evidence upon which the Crown relied. Nor do I consider that that decision might have resulted in a different outcome had the s 138 application extended to the evidence which was gathered as a consequence of the undertaking of the controlled operation the subject of the Dowe Authority. 99 In the foregoing circumstances, when one comes to consider the matters to be taken into account pursuant to s 138(3), the following findings should be made: (a) The probative value of the impugned evidence was high;

(g) The difficulty of obtaining the impugned evidence without contravening an Australian law was self-evident which is why, in light of Ridgeway , the Parliament enacted the LECO Act . Furthermore, the application for the Dowe Authority dated 22 February 2005 and signed by Standen, noted the necessity of Tom's assistance who, as a registered informer, needed the protection of an authority granted under that Act. Further, in para 13 of the application, the following appears: "13. Available methods of investigating the criminal activity that do not involve the use of controlled activity are limited to: The use of electronic and physical surveillance, interrogation of law enforcement databases and informer information. The subjects of the investigation are professional criminals with significant experience and expertise in the conduct of their activities. Law enforcement intelligence suggests that the subjects and their associates have corrupt contacts within law enforcement agencies, government departments and other key organisations. I believe that the continued use of the methods outlined above may alert the subjects to the existence of the investigation, thereby enabling the subjects to suspend or conceal their activities and frustrate the investigation. 14. I believe that the nature and extent of the criminal activity is such as to justify the conduct of the operation and that the nature and extent of the proposed controlled activities are appropriate to the criminal activity." (Emphasis in original) (h) In para 3(b) of the Dowe Authority issued by him on 22 February 2005 Bradley stated that he was satisfied that: "the nature and extent of the suspected criminal activity or corrupt conduct was such as to justify the conduct of a controlled operation." 100 Finally, I refer back to the judgment of Judge Murrell of 4 May 2007, to refuse the application by the appellant under s 138(1) to exclude evidence obtained prior to 22 February 2005. Although the appellant suggested that in a new trial it would be open to him to re-agitate all the issues the subject of her Honour's decision, it was not suggested on the appeal before us that her Honour's decision was wrong or, at least, was other than one which she was entitled to reach. It was also submitted that if this Court was to decide the s 138 issue itself, it should "factor in" the findings of Judge Murrell. 101 However, Judge Hulme came to the same conclusion as Judge Murrell as to the admissibility of the pre-22 February evidence but for different reasons. As was the case with the findings of Judge Murrell, there was no challenge on the appeal to the findings of Judge Hulme with respect to that issue. The reasoning of neither judge with respect to their ruling on the admission of the pre-22 February evidence could in any conceivable manner be influenced by the subsequent invalidity of the Dowe Authority. 102 Accordingly, in my opinion there is no merit in the appellant's submission that due to the invalidity of the Dowe Authority he should now be given the opportunity in a new trial to re-agitate on a further application under s 138(1) the admissibility of the pre-22 February evidence. 103 In the foregoing circumstances I am of the opinion that it is open for this Court, as we were invited to do by both parties, to determine for ourselves whether, notwithstanding the invalidity of the Dowe Authority, the evidence gained as a consequence of its execution should, as a matter of inevitability, be either admitted or excluded. If the Court was of the view that it was inevitable that the impugned evidence would be admitted then it was accepted that there would be no proper basis for the appellant's conviction to be quashed and a new trial ordered so as to provide him with the opportunity to re-agitate an application under s 138 which would inevitably fail. 104 In my opinion, I have no doubt that in the circumstances to which I have referred, the discretion under s 138(1) to admit the impugned evidence would be exercised in favour of its admission. To suggest otherwise would be an exercise in futility.

Dowe v R

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