GEDEON, Gilbert v R

Catchwords

(2010) 241 CLR 491 Director of Public Prosecutions v Marijancevic [2011] VSCA 355(2011) 33 VR 440 Director of Public Prosecutions v MD [2010] VSCA 233(2010) 29 VR 434 Dowe v Commissioner of the New South Wales Crime Commission [2006] NSWSC 1312(2006) 206 FLR 1 Dowe v Commissioner of New South Wales Crime Commission [2007] NSWCCA 296(2007) 177 A Crim R 44 Dowe v The Queen [2009] NSWCCA 23(2009) 193 A Crim R 220 Dwyer v Calco Timbers Pty Ltd [2008] HCA 13(2008) 234 CLR 124 Em v The Queen [2007] HCA 46(2007) 232 CLR 67 Fleming v The Queen [2009] NSWCCA 233(2009) 197 A Crim R 282 Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43(2008) 236 CLR 120 Green v The Queen [2011] HCA 49(2011) 244 CLR 462 Hamilton v Oades [1989] HCA 21(1989) 168 CLR 23 Jimmy v The Queen [2010] NSWCCA 60(2011) 245 CLR 1 Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54(2005) 223 CLR 331 Norbis v Norbis [1986] HCA 17(1986) 161 CLR 513 at 518-519 Nudd v The Queen [2006] HCA 9

Judgment (41 paragraphs)

[1]

Background 3The appellant was arrested as a result of a New South Wales Crime Commission (Commission) operation codenamed "Mocha". As part of the operation the Commission caused authorities to be issued pursuant to the Law Enforcement (Controlled Operations) Act 1997 (Controlled Operations Act) authorising an informer known as "Tom" to sell cocaine to other persons. This was done in the knowledge that the cocaine would not be recovered. The appellant was one of the persons to whom the cocaine was sold. The evidence is set out in further detail below. 4The appellant and another person, Mr David Dowe, challenged the validity of the controlled operations authorities, the challenge of which was ultimately successful: Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120. 5Following the successful appeal to the High Court the appellant applied for a permanent stay of the proceedings and that "all the evidence sought to be relied upon by the Crown" be excluded pursuant to s 138 of the Evidence Act 1995. Following an extensive voir dire the trial judge ruled against the appellant. 6One of the witnesses called by the Crown on the voir dire was a Mr Mark Standen, who at the time of the offences was the Assistant Director of Investigations of the Commission. The appellant sought leave to cross-examine Mr Standen in respect of certain charges that had subsequently been brought against Mr Standen. Mr Standen objected to answering such questions. The appellant sought an order from the trial judge that Mr Standen be compelled to answer such questions or that his trial be adjourned until the proceedings against Mr Standen were completed. Each application was refused by the trial judge. These matters are the subject of Grounds 6 and 7 of the grounds of appeal. 7The trial judge at the conclusion of the voir dire determined that the challenged material, which comprised principally the evidence of Tom and recordings of conversations which he had with the appellant and other participants in the drug operations, was admissible. The appellant sought leave to appeal this decision under s 5F of the Criminal Appeal Act 1912. The Court of Criminal Appeal declined leave: R v Gedeon [2009] NSWCCA 278. 8Following the unsuccessful application to the Court of Criminal Appeal the matter came back before the trial judge on 23 November 2009. A further application was made to cross-examine Mr Standen in respect of the charges laid against him which was refused. The trial judge again refused to adjourn the proceedings until Mr Standen's proceedings were finalised. Following the refusal of those applications the trial proceeded as a judge alone trial. 9The trial did not involve any factual issues concerning the appellant's conduct. The appellant in fact made certain admissions pursuant to s 191 of the Evidence Act. As I indicated, following the trial the appellant was convicted of both offences.

[2]

The Crown case 10From December 2004 a Joint Task Force (JTF) had been established between the Commission, the Australian Federal Police (AFP) and the NSW Police to investigate what they believed was a major drug syndicate involving the importation and distribution of cocaine. The information which led them to this belief was supplied by Tom. 11Tom gave evidence that on 6 February 2005 he met with the appellant, a Mr Shane Hatfield and another member of the drug syndicate at Rushcutters Bay. The conversation was recorded by way of a listening device concealed on Tom. The effect of the conversation was that the appellant offered to purchase two kilograms of cocaine for $340,000 and Mr Hatfield agreed to the appellant paying $300,000 at the time of supply and $40,000 at a later time. Tom and the appellant agreed to meet at Five Dock on 8 February 2005 to complete the transaction. 12Tom gave evidence that on 7 February 2005 he went with investigators to a bushland area in Wahroonga where seven kilograms of cocaine were buried. The cocaine was then taken to the Australian Government's National Measurement Institute for analysis. The seven blocks returned a gross weight of 6.975 kilograms with a purity of between 59.2% and 69.6%. Two kilograms were then taken to the Commission where they were stored in a safe in the office of Mr Standen. 13On 8 February 2005, 2 one kilogram bags of cocaine with some Glucodin were repacked by Tom under police supervision. Later that day Mr Phillip Bradley, Commissioner and Chief Executive Officer of the Commission, purported to issue an authority under the Controlled Operations Act authorising Tom to supply the appellant or his agent with two kilograms of cocaine in return for payment of $340,000. It also authorised him to hand $340,000 cash representing the sale of the cocaine to Mr Hatfield. 14Tom gave evidence that on 8 February 2005 he and the appellant arrived in separate vehicles at the car park of the Five Dock Leisure Centre. The conversation was recorded by a listening device and the meeting was the subject of video surveillance. Tom handed the appellant the bag containing two kilograms of cocaine and the appellant gave Tom a box containing $300,000 in cash. The appellant asked for more cocaine. 15Mr Kelly Mansfield, an AFP Federal Agent, gave evidence that the appellant placed the bag containing the cocaine into the boot of a Camry motor vehicle. After Tom and the appellant parted, JTF officers took possession of the money which was found to total $300,050. The money was substituted with other cash and returned by Tom to Mr Hatfield. 16Tom had a further meeting with the appellant and Mr Hatfield at Rushcutters Bay Park on 16 March 2005. Tom gave evidence that the effect of the conversation which took place on that day was that the appellant agreed to purchase a further 750 grams of cocaine for $120,000. It was agreed that Tom and the appellant would meet in the Five Dock area the next day but payment would be made later. 17On 17 March 2005 another controlled operations authority was issued purporting to authorise Mr Standen and Mr McGann, another law enforcement officer, to possess 750 grams of cocaine and supply it to Tom. The authority also purported to authorise Tom to supply the appellant with 750 grams of cocaine in return for payment of $120,000 to be collected by Tom at a later date, retained by him and then handed to Mr Hatfield. Investigators supplied Tom with two bags containing that amount. On that day Tom met the appellant and handed him the cocaine. 18Under the direction of JTF investigators Tom rang the appellant on 4 April 2005 and arranged to collect the outstanding $120,000. The payment was made on 6 April 2005. A controlled operations authority was also issued on 6 April 2005 purporting to authorise Tom to undertake that transaction. 19The appellant was arrested on 9 May 2005.

[3]

The grounds of appeal 20As the grounds of appeal raise discrete issues it is convenient to deal with them separately.

[4]

Ground 1 - Section 25(2) of the Drug Act is inconsistent with s 233B of the Customs Act 1901 (Cth) (the Customs Act) insofar as it purports to deal with prohibited imports and as a consequence the indictment and conviction should be quashed 21Prior to dealing with this ground it is convenient to set out the relevant provisions of the Acts in question. 22Section 25 of the Drug Act created the offence of supply of prohibited drugs. At the relevant time it was in the following terms: "25(1) A person who supplies, or who knowingly takes part in the supply of, a prohibited drug is guilty of an offence. (1A) A person of or above the age of 18 years who supplies, or who knowingly takes part in the supply of, a prohibited drug (other than cannabis leaf) to a person under the age of 16 years is guilty of an offence. (2) A person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence. (2A) A person of or above the age of 18 years who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug (other than cannabis leaf) which is not less than the commercial quantity applicable to the prohibited drug to a person under the age of 16 years is guilty of an offence. (2B) Where, on the trial of a person for an offence under subsection (1A) or (2A), the jury are satisfied that the person charged had, at the time the offence is alleged to have been committed, reasonable cause to believe, and did in fact believe, that the person to whom the prohibited drug was supplied was of or above the age of 16 years, they may acquit the person of the offence charged and find the person guilty of an offence under subsection (1) or (2), respectively, and the person is liable to punishment accordingly. (3) Where, on the trial of a person for an offence under subsection (2), the jury are not satisfied that the amount of prohibited drug involved is equal to or more than the commercial quantity applicable to the prohibited drug, they may acquit the person of the offence charged and find the person guilty of an offence under subsection (1), and the person shall be liable to punishment accordingly. (4) Nothing in this section renders unlawful the supply of a prohibited drug by: (a) a person licensed or authorised to do so under the Poisons Act 1966, or (b) a person acting in accordance with an authority granted by the Secretary of the Department of Health where the Secretary is satisfied that the supply of the prohibited drug is for the purpose of scientific research, instruction, analysis or study, or (c) a person acting in accordance with a direction given by the Commissioner of Police under section 39RA, or renders unlawful the taking part by any other person in the supply of a prohibited drug by a person to whom paragraph (a), (b) or (c) applies. (5) Nothing in this section renders unlawful the administration of a prohibited drug to a person being cared for by another person in the circumstances described in section 10(2)(d)." 23Section 29 of the Drug Act sets out circumstances where possession is taken to be possession for supply. It provides as follows: "29 A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall, for the purposes of this Division, be deemed to have the prohibited drug in his or her possession for supply, unless: (a) the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply, or (b) except where the prohibited drug is prepared opium, cannabis leaf, cannabis oil, cannabis resin, heroin or 6-monoacetylmorphine or any other acetylated derivatives of morphine, the person proves that he or she obtained possession of the prohibited drug on and in accordance with the prescription of a medical practitioner, nurse practitioner, midwife practitioner, dentist or veterinary surgeon." 24It should be noted that a traffickable quantity for the drug in question is 3 grams. 25Supply is defined in s 3 of the Drug Act as follows: "supply includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things." 26Section 33 provides a graduated scale of penalties for offences under s 25(2). It provides as follows: "33(1) This section applies to the following offences: (a) an offence under section 23(2), 24(2) or 25(2) or (2A), (b) an offence under section 26 of conspiring to commit an offence referred to in paragraph (a), (c) an offence under section 27 of aiding, abetting, counselling, procuring, soliciting or inciting the commission of an offence referred to in paragraph (a), (d) an offence under section 28 of conspiring to commit, or of aiding, abetting, counselling, procuring, soliciting or inciting the commission of, an offence under a law in force outside New South Wales which corresponds to section 23(2), 24(2) or 25(2) or (2A). (2) The penalty for an offence is: (a) except as provided by paragraph (b), a fine of 3,500 penalty units or imprisonment for 20 years, or both, or (b) where the offence relates to cannabis plant or cannabis leaf, a fine of 3,500 penalty units or imprisonment for 15 years, or both. (3) Despite subsection (2), if the court is satisfied that the offence involved not less than the large commercial quantity of the prohibited plant or prohibited drug concerned, the penalty for the offence is: (a) except as provided by paragraph (b), a fine of 5,000 penalty units or imprisonment for life, or both, or (b) where the offence relates to cannabis plant or cannabis leaf, a fine of 5,000 penalty units or imprisonment for 20 years, or both. (4) In this section: large commercial quantity, in relation to a prohibited plant or prohibited drug, means the number or amount, if any, specified opposite the plant or drug in Column 5 of Schedule 1." 27Finally, the provisions of s 4C(2) of the Crimes Act 1914 (Cth) should be noted: "4C(2) Where an act or omission constitutes an offence under both: (a) a law of the Commonwealth and a law of a State; or (b) a law of the Commonwealth and a law of a Territory; and the offender has been punished for that offence under the law of the State or the law of the Territory, as the case may be, the offender shall not be liable to be punished for the offence under the law of the Commonwealth." 28A commercial quantity of cocaine under Schedule 1 to the Drug Act is 250 grams. A large commercial quantity is one kilogram. The effect of s 4 of the Drug Act is that it is not necessary for the prosecutor to prove the precise amount of the particular prohibited drug contained in any substance which is the subject of the charge including for the purpose of the deeming provision in s 29: R v R2 (1990) 19 NSWLR 513 at 514-515. 29The relevant provision of the Customs Act, s 233B, provided at the time as follows: "233B(1) A person commits an offence if: (a) the person: (i) possesses goods on board a ship or aircraft; or (ii) brings goods into Australia; or (iii) imports goods into Australia; or (iv) possesses goods that have been imported into Australia in contravention of this Act; or (v) conveys goods that have been imported into Australia in contravention of this Act; or (vi) possesses goods that are reasonably suspected of having been imported into Australia in contravention of this Act; or (vii) fails to disclose to an officer on demand any knowledge in his or her possession or power concerning the importation or intended importation, or bringing or intended bringing, into Australia of goods; and (b) the goods are a prohibited import to which this section applies. (1AAB) Subparagraph (1)(a)(i), (ii), (iv), (v) or (vi) does not apply if the person proves that the person had a reasonable excuse for doing the act referred to in that subparagraph. (1AAC) A person commits an offence if: (a) the person: (i) exports goods from Australia; or (ii) fails to disclose to an officer on demand any knowledge in his or her possession or power concerning the exportation or intended exportation from Australia of goods; and (b) the goods are a prohibited export to which this section applies. (1AA) For the purposes of an offence against subparagraph (1)(a)(i), absolute liability applies to the physical element of circumstance of the offence, that the relevant possession is on board any ship or aircraft. Note: For absolute liability, see section 6.2 of the Criminal Code. (1AB) For the purposes of an offence against subparagraph (1)(a)(iv) or (v), absolute liability applies to the physical element of circumstance of the offence, that the prohibited imports have been imported into Australia in contravention of this Act. Note: For absolute liability, see section 6.2 of the Criminal Code. (1AC) For the purposes of an offence against subparagraph (1)(a)(vi), absolute liability applies to the physical element of circumstance of the offence, that the prohibited imports are reasonably suspected of having been imported into Australia in contravention of this Act. Note: For absolute liability, see section 6.2 of the Criminal Code. (1A) On the prosecution of a person for an offence against subsection (1), being an offence to which subparagraph (1)(a)(iv) applies, it is a defence if the person proves that he or she did not know that the goods in his or her possession had been imported into Australia in contravention of this Act. (1B) On the prosecution of a person for an offence against subsection (1), being an offence to which subparagraph (1)(a)(vi) applies, it is a defence if the person proves that the goods were not imported into Australia or were not imported into Australia in contravention of this Act. (1C) Any defence for which provision is made under either of the last 2 preceding subsections in relation to an offence does not limit any defence otherwise available to the person charged. (2) The prohibited imports to which this section applies are prohibited imports that are narcotic goods and the prohibited exports to which this section applies are prohibited exports that are narcotic goods. (3) A person who is guilty of an offence against subsection (1) of this section is punishable upon conviction as provided by section 235. (4) This section shall not prevent any person from being proceeded against for an offence against any other section of this Act, but he shall not be liable to be punished twice in respect of any one offence." 30Section 229(1)(b) provides that prohibited imports shall be forfeited to the Crown. 31At the time of the offences the penalty prescribed for a contravention of s 233B involving the importation of a commercial quantity of a narcotic substance was a fine not exceeding 7,500 penalty units or imprisonment for life or both, or for such period as the court thinks appropriate: s 235(2)(c). A commercial quantity of cocaine under Schedule VI of the Customs Act was defined as two kilograms, and further, unlike the Drug Act the quantity was measured by reference to the amount of pure cocaine found in the substance. 32Cocaine is defined as a prohibited drug for the purpose of the Drug Act and a prohibited import for the purpose of the Customs Act.

[5]

(a) The appellant's submissions 33The appellant acknowledged that his submission on this ground was contrary to what was decided by this Court in R v Stevens (1991) 23 NSWLR 75. However, he submitted that this decision should not be followed in light of the decision of the High Court in Dickson v The Queen [2010] HCA 30; (2010) 241 CLR 491 (Dickson). 34The appellant emphasised that he was relying on what he described as direct inconsistency. He submitted that in R v Stevens supra the focus of the Court was instead on indirect inconsistency, namely whether it was the intention of the Commonwealth legislature to cover the field. 35The appellant submitted there was direct inconsistency between s 233B of the Customs Act and s 25 of the Drug Act. He submitted that s 25 by definition includes the act of possession, relying on the definition of supply in s 3 in conjunction with the deemed supply provision in s 29. He submitted that the prohibition was absolute and the defence of reasonable excuse contained in s 223B(1AAB) of the Customs Act was not available. He also relied on the fact that as was the case in Dickson, the offence related to Commonwealth property by reason of s 229(1)(b) of the Customs Act. 36In supplementary submissions filed after the decision of the High Court in Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 (Momcilovic), the appellant pointed to the width of the phrase "reasonable excuse" in s 233B(1AAB), submitting that it was an "exception, exemption, excuse, qualification or justification" within the meaning of s 13.3 of the Criminal Code Act 1995 (Cth) (Criminal Code). He submitted that the position was analogous to that in Dickson. He pointed out that in relation to conspiracy, s 11.5(5) of the Criminal Code provided for the defence of withdrawal from the conspiracy in contrast to the provisions of s 321 of the Crimes Act 1958 (Vic). He submitted that s 233B(1AAB) of the Customs Act similarly provides a defence not available under the Drug Act. He submitted that the High Court in Momcilovic adopted the same approach as in Dickson. 37The appellant submitted that the Commonwealth had specifically legislated not only in relation to the importation of narcotics but also to their subsequent possession. He submitted that the Drug Act criminalises the same conduct and therefore closes up one area deliberately left open by the Commonwealth, namely, by removing the possibility that a person in possession might reasonably be excused. He submitted this was a direct inconsistency. 38At the hearing counsel for the appellant submitted that the defence was in the nature of a right or privilege conferred by the paramount legislature which was taken away by the State legislature. He submitted that the fact it is possible to obey both sets of provisions is not sufficient to avoid such inconsistency. 39Counsel for the appellant also sought to show inconsistency by way of a comparison between s 10 of the Drug Act which creates the offence of possession of prohibited drugs and s 233B(1)(iv) of the Customs Act which concerns possession of imported prohibited drugs. He submitted that by comparison with s 10, s 233B(1)(iv), by reason of s 233B(1AAB), provided for the defence of reasonable excuse. He submitted that that added weight to the proposition that the Customs Act preserves an area free from liability which was taken away by the Drug Act. 40Counsel for the appellant, relying on Dickson, submitted that the offence charged involved dealing with Commonwealth property. He pointed out that the inconsistency in Dickson was found to exist only so far as the Victorian statute in issue related to Commonwealth property. The submission presumably was that the State legislation was not dealing with purely State supply but with Commonwealth property and the question of inconsistency had to be considered on that basis. 41Counsel for the appellant emphasised that in considering this issue the paramount consideration is the text of the legislation and whether there is a direct inconsistency such that s 109 of the Constitution is invoked. He submitted that it was incorrect or irrelevant to say that the reasonable excuse defence was co-extensive with defences available at common law. He submitted that if this was the case there would have been no need to include it. He also submitted that the common law defences were provided for in Chapter 2 of the Criminal Code which applied to offences against the Customs Act. He submitted that in those circumstances the defence of reasonable excuse must mean something other than what is contained in Chapter 2 of the Criminal Code.

[6]

(b) The Attorney General's submissions 42The New South Wales Attorney General intervened in the proceedings. The Attorney submitted that the relevant legislation did not deal with the same conduct; he submitted that s 25 of the Drug Act dealt with supply whereas s 233B of the Customs Act dealt with importation. The Attorney submitted that the most that could be said was that the offences share a common element, namely possession of certain substances. However, he submitted this was not the conduct criminalised by s 25 of the Drug Act. 43The Attorney pointed to the two different mental elements for each offence. In relation to possession the prosecution bears the onus of showing that the accused knew that he or she had physical control of the substance, whilst in relation to s 25 it is necessary to establish not only the element of possession but also the intention of supplying the drugs to another person. 44The Attorney submitted the decision in R v Stevens supra remains good law. He submitted that Lee CJ at CL was correct in stating that the provisions were directed to fundamentally different purposes; the Customs Act provisions were directed at importation whereas the Drug Act provisions concerned the control of narcotics within the State, irrespective of their origin. 45The Attorney submitted that the attempt by the appellant to distinguish R v Stevens supra on the basis that it was only concerned with indirect inconsistency was based on the erroneous assumption that there was a categorical distinction between direct and indirect inconsistency. The Attorney pointed out that in all cases it was necessary to carefully analyse the laws in question to determine their true construction and scope referring, to what was said by Gummow J in Momcilovic at [245]. 46The Attorney submitted that the inconsistency found in Dickson did not turn solely on the fact that there were differences between the criteria for criminal culpability between the State and Commonwealth laws in question, but rather, the particular character and context of those differences. He submitted that in contrast to the present case, the Commonwealth legislation in Dickson reflected the deliberate choice to exclude certain aspects of conduct covered by the State legislation. 47The Attorney submitted that Dickson was not authority for the proposition that State legislation is directly inconsistent with Commonwealth legislation for the purpose of s 109 of the Constitution if the State legislation omits a defence provided for in the Commonwealth legislation. The Attorney noted that Dickson did not overrule McWaters v Day (1989) 168 CLR 289, and that in Momcilovic, Crennan and Kiefel JJ at [637] cited McWaters v Day as authority for the proposition that inconsistency did not arise merely because of the existence of differences between the two law. 48The Attorney submitted that the notion of reasonable excuse is largely co-extensive with defences available under the common law that are applicable to offences such as those established under s 25(2) of the Drug Act. At the hearing the Solicitor General emphasised that it was incorrect to state that the two sections in question criminalised the same conduct.

[7]

(c) The Crown's submissions 49The Crown, which adopted the submissions of the Attorney General, emphasised that the Customs Act provision was a limited regime that criminalised acts related to the importation of narcotic goods. The Crown referred to what was said by Spigelman CJ in R v Campbell [2008] NSWCCA 214; (2008) 73 NSWLR 272 that the Commonwealth in passing the legislation relied on the external affairs power and, in these circumstances, it was hardly surprising that the focus of the section was on imports. The Crown submitted that this statement were consistent with the approach in R v Stevens supra. 50The Crown also emphasised that no reliance was placed on the deeming provision in s 29 of the Drug Act in respect of the charges against the appellant. 51The Crown pointed out that the concept of supply involved the transferring to another of the substance needed, wanted or requested by the person to whom it was to be given and, consequently, it was the physical act of receiving for supply which was the nub of the offence. The Crown pointed out that other physical acts in the definition did not necessary involve possession. The Crown submitted that it was inconceivable that the forfeiture provisions could not prevent the State criminalising such acts. 52Senior counsel for the Crown submitted that contrary to what was put by the appellant, the goods were not Commonwealth property. He submitted that although the goods were forfeited under s 229(1)(b), title did not pass to the Crown until the goods were condemned as forfeited by s 205C of the Customs Act. 53In common with the Solicitor General, senior counsel for the Crown emphasised that s 233B was not directed to supply of drugs.

[8]

Consideration 54As I indicated above, the appellant placed reliance on what was described as direct inconsistency between s 233B of the Customs Act and s 25 of the Drug Act. However, as Gummow J pointed out in Momcilovic, care must be taken in speaking of different classes of inconsistency to not obscure the test where reliance is placed on s 109, namely, to apply that provision only after analysis of the laws in question to determine their construction: Momcilovic supra at [245], [261]; see also Crennan and Kiefel JJ at [637]. 55In Momcilovic each member of the Court explained that in considering whether s 109 will apply in any particular case, the intention of federal Parliament is ascertained by the conventional process of statutory construction: Momcilovic supra at [111] per French CJ; [245] and [258] per Gummow J; [315] per Hayne J; [474] per Heydon J; [637] per Crennan and Kiefel JJ; [660] per Bell J). 56In the present case it is clear from the language of s 233B of the Customs Act that the section relates to imported goods. Although the offence extends beyond the importation of such goods, those provisions, namely s 233B(1)(iv)-(vii), relate either to goods which have been imported, are reasonably suspected of having been imported or in the case of s 233B(1)(vii), the intended importation of goods. 57The fact that the section is concerned with imported goods can also be shown from the fact that in passing the legislation Parliament invoked its constitutional authority over external trade and commerce. As Spigelman CJ pointed out in R v Campbell supra at [107], the entire focus of the section is on imports and exports. 58To establish an offence under s 233B the prosecution must prove beyond reasonable doubt that the accused knew he or she had the prohibited import in their possession: He Kaw Teh v The Queen (1984) 157 CLR 523 at 545, 584, 589 and 603. It is only if the prosecution can prove that element of the offence that the defence of reasonable excuse under s 233B(1AAB) may arise. 59By contrast, s 25(1) of the Drug Act deals with the supply of drugs within this jurisdiction whether imported or otherwise. The relevant mental element is the intent to supply or to do any of the other acts contained in the extended definition of supply in s 3 of the Drug Act. Supply in that context means to furnish or to provide something which is needed or wanted or required by the person to whom it is given and does not include merely returning it to its owner: R v Carey (1990) 20 NSWLR 292 at 294. 60The appellant's contention that there is direct inconsistency is not based on the proposition that there are conflicting duties imposed by both legislatures, but rather, that the State Act alters, impairs or detracts from the operation of the federal Act. The principle was expressed in these terms by Dixon J in the State of Victoria v The Commonwealth (The Kakariki) (1937) 58 CLR 618 at 630; see also Telstra Corporation Ltd v Worthing [1999] HCA 12; (1999) 197 CLR 61 at [27]-[28]; Dickson at [13]; Momcilovic at [264], [627]. The appellant's contention was that there was a direct collision between the two pieces of legislation in the sense that the Drug Act imposed a greater obligation than provided for by the Customs Act: Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253 at 258-259; Telstra Corporation Ltd v Worthing supra at [27]; Dickson at [22], or that the Drug Act took away a right deliberately excluded from conduct rendered criminal by the Customs Act: Dickson at [22]. 61In considering the issue it must be borne in mind that inconsistency does not arise merely because the relevant federal and State statutes deal with the same matters in different terms, unless the language of the federal statute indicates an intention that its law be the only law on the subject matter: McWaters v Day supra at 296; Momcilovic at [637]. 62An example of two laws operating concurrently in this sense can be found in The Kakariki, in which the respective Commonwealth Navigation Act and State Marine Act provided for the removal of ships sunk in a port within the State of Victoria. Dixon J pointed out that in such circumstances there was no reason for treating the federal legislation as intending to do more than confer a concurrent or parallel power to enforce the removing of wrecks; his Honour stated that there would be operational inconsistency if there were simultaneous attempts by both authorities to remove a wreck. The question of dual prosecution in the present case is dealt with by s 4C(2) of the Crimes Act (Cth), to which I have referred above. 63McWaters v Day supra involved offences of driving whilst intoxicated under the Traffic Act 1949 (Qld), which carried a maximum penalty of nine months' imprisonment or a fine of $1,400 or both, and the Defence Force Discipline Act 1982 (Cth), which imposed liability for a similar offence on a defence member or defence civilian with a maximum penalty of 12 months' imprisonment. The High Court held that there was no inconsistency and made the following comments at 299: "Since the Discipline Act is supplementary to, and not exclusive of, the ordinary criminal law, it follows that it does not deal with the same subject-matter or serve the same purpose as laws forming part of the ordinary criminal law. The result is that there is no inconsistency between s. 40(2) of the Discipline Act and s. 16(1) of the State Act for the purposes of s. 109 of the Constitution. It is accordingly unnecessary to consider the appellant's contention that s. 40(2) is invalid." 64In the present case the appellant's submission was that in not providing for the defence of reasonable excuse, the Drug Act took away what was described by his counsel as a right or privilege available under the Customs Act, namely, the possession of an imported drug with reasonable excuse. That submission seems to me to be misconceived for a number of reasons. 65First, the Drug Act is dealing with supply and not possession of a drug. The necessary element is intention to supply the drug. It is difficult to see how if the accused was shown to have possession for supply there could be a reasonable excuse for possession. That is illustrative of the fact that the two pieces of legislation are operating in different spheres. 66Second, as was pointed out in R v Daher [1981] 2 NSWLR 669 at 672, the matters encompassed within the concept of reasonable excuse are largely co-extensive with common law defences, answers, justifications or excuses. The difference is that under the Customs Act the onus is clearly on the defendant to establish such justifications or excuses. 67The deeming provision in s 29 of the Drug Act does not affect the position. It reverses the onus of proof in relation to supply in cases where the Crown has established beyond reasonable doubt that the accused had in his or her possession not less than the trafficable quantity of a prohibited drug. Reversing the onus in that way does not take away any right or liberty left open by the Customs Act, nor does it alter, impair or detract from it. 68The present case can be contrasted with Dickson, which involved two laws covering the same area, namely conspiracy to steal Commonwealth property. The federal legislation in requiring an overt act and permitting withdrawal from the conspiracy prior to the commission of such an act was said to exclude a significant area of conduct to which the State law attached and the State law thus closed a significant area of liberty left open by the federal law: Dickson supra at [25]. The High Court described the inconsistency in the following terms: "[22] The direct inconsistency in the present case is presented by the circumstance that s 321 of the Crimes Act (Vic) renders criminal conduct not caught by, and indeed deliberately excluded from, the conduct rendered criminal by s 11.5 of the Criminal Code (Cth). In the absence of the operation of s 109 of the Constitution, the Crimes Act (Vic) will alter, impair or detract from the operation of the federal law by proscribing conduct of the appellant which is left untouched by the federal law. The State legislation, in its application to the presentment upon which the appellant was convicted, would undermine and, to a significant extent, negate the criteria for the existence and adjudication of criminal liability adopted by the federal law. No room is left for the State law to attach to the crime of conspiracy to steal property in the possession of the Commonwealth more stringent criteria and a different mode of trial by jury. To adapt remarks of Barwick CJ in Devondale Cream, the case is one of 'direct collision' because the State law, if allowed to operate, would impose upon the appellant obligations greater than those provided by the federal law."(Citation omitted) 69In the present case as I have sought to demonstrate, the relevant legislation is directed to different offences and there is no area of liability left open by the Commonwealth which is closed by the Drug Act. 70Further, it would be immaterial in my opinion, if the effect of the Customs Act was that title to the drugs vested in the Commonwealth at the time that the offence took place. The offence is the supply of drugs and there is no reason to conclude that the Commonwealth legislature intended to deliberately leave open an area of liability in respect of supply resulting from title to such drugs vesting in the Commonwealth by virtue of the provisions in the Customs Act. 71In any event at the relevant time title had not vested in the Commonwealth. Although the drugs are forfeited to the Commonwealth by virtue of s 229(1)(b), for title to pass the goods need to be seized either with or without a warrant pursuant to s 203A or s 203C of the Customs Act and a seizure notice issued in accordance with the terms of s 205. If no claim for the goods is made at the end of 30 days after the issue of the notice, the goods are taken to be condemned as forfeited to the Crown. It is at this point the title vests in the Commonwealth pursuant to s 205G of the Customs Act. This process had not occurred at the time of the offences and, as such, title of the goods had not vested in the Commonwealth. 72It follows from what I have said that R v Stevens (1991) 23 NSWLR 75, although dealing with the question in the context of argument based on indirect inconsistency, was correctly decided. 73In these circumstances Ground 1 of the grounds of appeal is not made out.

[9]

Grounds 2 to 5 - Incorrect application of s 138 of the Evidence Act 1995 in the admission of evidence establishing the Crown case 74Grounds 2 to 5 are as follows: "2) Her Honour erred in law, and applied the wrong test under s. 138 Evidence Act 1995, by assessing 'the gravity of the impropriety or contravention' for the purpose of s. 138(3)(d) by reference to, or comparison with, the gravity of the offence with which the appellant was charged. 3) Her Honour erred in law, and applied the wrong test under s. 138 Evidence Act 1995, by balancing the 'overall risk' of harm to the public caused by the NSW Crime Commission supplying cocaine against the 'desirability of bringing to an end the drug importation and distribution network'. 3)A The trial judge erred in finding as a fact that the risk of adverse health consequences to end users was 'not high' in the absence of evidence capable of supporting that finding. [This ground was added pursuant to leave granted during the hearing of the appeal.] 4) Her Honour erred in failing to exclude the evidence relating to the events of 8 February and 16 March 2005 pursuant to s. 138 Evidence Act 1995, because the learned trial judge determined erroneously that the evidence had not been obtained in consequence of a breach of Commonwealth law, specifically: i) Her Honour erred in concluding that the actions of the authorities and Tom on 8 February and 16 March were not criminalised by Commonwealth law, since each participant had a 'reasonable excuse' and therefore there had been no violation of s. 233B Customs Act 1901 (C'th); and ii) Her Honour erred in concluding that, if the defence of reasonable excuse did not apply, then the evidence was not obtained in consequence of the actions of Tom and the authorities; 5) In determining that the desirability of admitting the evidence of the supplies to the appellant outweighed the undesirability of admitting the evidence pursuant to s. 138 Evidence Act 1995, her Honour erred by: i) Failing to give sufficient weight, or any weight at all, to the harm to the public interest caused by the actions of the authorities; ii) Affording too much weight to the stated beliefs of the law enforcement personnel that they were acting pursuant to a valid authority issued in accordance with the Law Enforcement (Controlled Operations) Act 1997; and iii) Failing to take into account a number of other improprieties, such as (a) the failure to comply with Commonwealth law in terms of forfeiture of the cocaine, (b) the failure to attempt to obtain a controlled operations certificate under Commonwealth law in circumstances where such a certificate would not, and could not, lawfully be issued, (c) the failure to comply with standards relating to the handling of exhibits, particular drug exhibits, (d) the failure to comply with standards relating to the maintenance of the proceeds of crime, and (e) the failure to comply with procedures and protocols relating to the control and handling of informants." 75I have referred earlier in this judgment to the fact that the appellant sought orders that all the evidence against him be excluded. After an extensive voir dire the trial judge concluded in a judgment given on 14 September 2009 that the evidence she found to be illegally obtained should be admitted under s 138 of the Evidence Act, whilst part of the evidence the subject of the challenge was not obtained improperly or illegally. 76As Grounds 2 to 5 to some extent overlap, it is convenient to deal with them together.

[10]

The judgment of the trial judge 77The trial judge referred to the fact that the controlled operations authorities were held to be invalid by the High Court in Gedeon v Commissioner supra, and to the subsequent decision of the this Court in Dowe v The Queen [2009] NSWCCA 23; (2009) 193 A Crim R 220, which held that the evidence against the appellant Mr Dowe was admissible under s 138 of the Evidence Act. The trial judge accepted that having regard to the different evidence and submissions before her, the decision in Dowe did not govern the outcome of the application. 78The trial judge accepted that the evidence obtained as a result of the two controlled operations authorities was illegally obtained and consequently, the Crown bore the onus under s 138 of the Evidence Act of establishing its admissibility. The trial judge dealt separately with the categories of evidence said to have been illegally obtained which were not protected by the controlled operations authorities. 79The first piece of evidence was the conversation of 6 February 2005 to which I have referred in par [11] above. Her Honour held that evidence was not obtained in contravention of Australian law, the conversation having been recorded pursuant to a validly obtained listening device warrant. She concluded that there was no inducement or entrapment of the type referred to in Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19. 80The second category was the recovery of the seven kilograms of cocaine from bushland at Wahroonga to which I have referred in par [12] above. Her Honour accepted that this conduct was capable of constituting an offence under the Drug Act. She accepted that this illegal activity produced the evidence about the cocaine including the fact that it was cocaine, its quantity, its provenance and by allowing the commencement of the chain of continuity which ended with its supply to the appellant. Her Honour accepted that it was inadmissible under s 138(1) of the Evidence Act, unless admitted in the exercise of the discretion under that section. 81The third category was the packaging of the 2 one kilogram bags of cocaine on 8 February 2005 referred to in par [13] above. The trial judge accepted this involved a contravention of the Drug Act and that it produced evidence to be relied upon. She again concluded that this evidence was inadmissible under s 138(1) of the Evidence Act subject to the exercise of her discretion. 82The fourth category was evidence that on 22 February 2005 Tom was given one kilogram of cocaine at the offices of the Commission and, in the presence of law enforcement officers, prepared it for sale by dividing it into one bag of 750 grams and one bag of 250 grams. The trial judge accepted this contravened the Drug Act and produced evidence which was inadmissible under s 138(1) subject to the exercise of her discretion. 83The fifth category related to the conversation of 16 March 2005 referred to in par [16] above. Her Honour accepted the argument that the entry into the agreement made in that conversation constituted an offence under the Drug Act, but rejected the proposition that the conversation produced the evidence relied upon by the Crown. 84Her Honour then referred to the other items of illegality relied upon by the appellant. The first concerned possessing and dealing with Commonwealth goods in contravention of the Customs Act without obtaining a Commonwealth controlled operations certificate pursuant to s 15M of the Crimes Act (Cth). 85Her Honour accepted that there was no application for such a certificate, that the cocaine was a prohibited import and that there were special provisions relating to prohibited imports which were forfeited to the Crown. I have summarised these provisions in par [71] above. Her Honour also accepted that possessing and conveying cocaine without reasonable excuse was an offence against the Customs Act. Her Honour, however, found that there was a reasonable excuse in that the acts were done with a view to investigating and prosecuting serious drug offences. She rejected the proposition that failure to deal with the drugs in accordance with the Commonwealth or State legislation or policing guidelines, removed the reasonable excuse. She declined to follow the minority judgment of Basten JA in Dowe v Commissioner of New South Wales Crime Commission [2007] NSWCCA 296; (2007) 177 A Crim R 44 (Dowe (No 2)) to the contrary, stating the High Court did not deal with this issue. 86Her Honour, however, accepted that as a result of s 15I(2A) and s 15M(e) of the Crimes Act (Cth), no such Commonwealth certificate could be issued where illicit drugs were likely to pass out of the control of the relevant law enforcement authority. However, she stated that this did not alter the defence of reasonable excuse. 87Her Honour also expressed the view that even if those illegalities occurred, they did not produce the evidence which the Crown sought to rely on. 88Her Honour then dealt with illegality said to have arisen between the two controlled operations authorities of 8 February and 17 March 2005, when Mr Standen and other law enforcement operators supplied the balance of the seven kilograms of cocaine to Tom to supply to other people pursuant to a controlled operations authorities not challenged in the High Court. The trial judge held that notwithstanding the lack of challenge, the controlled operations authorities should be regarded as invalid as having been issued in almost identical circumstances. However, she concluded there was no causal connection between the illegalities and the evidence. 89The trial judge noted that the allegation of illegality based on a failure to deal legally with the proceeds of crime was not pursued in argument, and further, her Honour rejected the proposition that Tom was induced or encouraged to engage in criminal activities. 90Her Honour's conclusion was that, subject to the exercise of her discretion under s 138 of the Evidence Act, the evidence of unearthing the cocaine on 7 February, the preparation of it by Tom on 8 and 22 February, and the evidence concerning its transfer from law enforcement officers to Tom and supply to the appellant, was illegally obtained and therefore inadmissible. 91The trial judge also dealt with the argument that the evidence was infected with a number of improprieties. She accepted, in accordance with Ridgeway supra at 36, that improper conduct is conduct falling below "the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement". She said that on one view it was not necessary to deal with the issue as most of the evidence in any event would be inadmissible as illegally obtained unless the discretion under s 138 was exercised. However, she accepted the question of improprieties was relevant to the exercise of her discretion. 92The first alleged impropriety was failing to conform to exhibit handling protocols in relation to drugs, proceeds of crime and related evidence. The trial judge accepted that the activities which took place were not in accordance with those protocols and it was never intended that the drugs be dealt with in accordance with them. However, she did not accept that this was inconsistent with the minimum standards required of law enforcement officers. She referred to the fact that all of the dealings were recorded on video or in statements of officers who knew and understood that the activities were being undertaken as part of a controlled operation. 93The second alleged impropriety was the seizure by and storage of drugs at the Commission. The trial judge stated this did not amount to an impropriety for the same reasons as she had given in relation to the failure to follow protocols. 94The third alleged impropriety was the failure to comply with informer management policies, protocols and requirements including the failure to ascertain the full extent of Tom's criminality. The trial judge accepted there was a failure to comply with the informer management policies, pointing to the failure by Mr Standen to keep records, absence of any direct supervision of Mr Standen and the fact there was no co-handler. 95However, her Honour said that when viewed in context this conduct did not amount to impropriety. She pointed to the fact that there was some record of Mr Standen's dealing with Tom, that Mr Standen reported on an ongoing basis to Mr Bradley and that there was a formal record of interview with Tom. The trial judge also stated that there was no evidence that any of this conduct produced the evidentiary material complained of or that any different evidence would have been produced if Tom had been managed entirely within the policy guidelines. 96The fourth category was dealing with money provided to the Commission by Tom. The trial judge accepted that Tom provided money in a bag handed to a law enforcement officer, Mr Mansfield, and then to Mr Standen probably on 7 February 2005. The bag was later given by Mr Standen to the Commission and receipted as $65,000. Tom in his evidence said he could not recall how much was handed over but said it was between $35,000 and $80,000. The trial judge said given the large sums involved it was not noteworthy, but accepted there was potential that Tom was providing money to Mr Standen for the latter's private purposes. 97Her Honour accepted that this was an unusual and undesirable way to deal with the funds but she concluded from the evidence that $65,000 was in fact passed from Tom and ultimately to the Commission. Her Honour concluded in those circumstances that what occurred was not improper, but even if it was, there was no causal connection between the conduct and the evidence supporting the Crown's case. 98The fifth category was the failure to comply with the letter and spirit of the JTF agreement. The trial judge accepted that what occurred was outside the terms of that agreement because control over the drugs was lost and ultimately they were presumably supplied to end users. However, she did not accept that this would amount to an impropriety. 99The sixth category was the failure to abide by the Code of Conduct surrounding controlled operations contained in Schedule 1 to the then Law Enforcement (Controlled Operations) Regulation 1998. Her Honour concluded that this submission was largely otiose having regard to the invalidity of the controlled operations authorities. However, she noted that the complaint was that Mr Standen in particular, but also Mr Bradley and the other officers, did not act in good faith in applying for and granting the controlled operations authorities. She said this was relevant to determine whether the illegalities were deliberate or reckless but she did not accept that of itself it constituted an impropriety. 100The seventh category of alleged impropriety was that Mr Bradley had made his decision to issue the authorities prior to 8 February 2005, at the time of a meeting with the Commissioner of Police on 2 February 2005, or that the decision was in fact made by the Commissioner of Police. The trial judge rejected this argument on the evidence, stating that it was appropriate to plan for the operation. She said the evidence established that any agreement reached on 2 February was always contingent on Tom and his information being reliable. She also said that there was no evidence that Mr Bradley made any final decision to grant an authority prior to 8 February, accepting the evidence of Mr Bradley on this issue. 101The trial judge then dealt with the question of the exercise of discretion contained in s 138 of the Evidence Act, recognising the onus was on the Crown to show that the desirability of admitting the evidence outweighed the undesirability of admitting evidence so obtained taking into account at least the factors in s 138(3). She accepted for the purpose of s 138(3)(a) that the evidence was highly probative and for the purpose of s 138(3)(b) very important. She also accepted for the purpose of s 138(3)(c) that the offences for which the appellant was charged were very serious. 102The trial judge also accepted that for the purpose of s 138(3)(d) of the Evidence Act the contraventions by the authorities were serious. She said, however, they were less serious than the appellant's contraventions as they did not occur as part of an organised criminal activity but instead were part of a law enforcement effort. She concluded that in considering the gravity of the contraventions, it was appropriate to consider the motivation and beliefs of those involved in the conduct. She said the evidence that the officers in question believed they were acting in accordance with validly issued controlled operations authorities was overwhelming. 103The trial judge then dealt with the question raised by s 138(3)(e), namely, whether the contraventions were deliberate or reckless. She concluded that the officers concerned did not intend to breach the law, nor were they reckless. 104So far as the officers involved in the actual drug handling and transfers were concerned, she said there was no evidence that they were acting otherwise than in good faith and in the belief that they were participating in authorised controlled operations. She recorded the same conclusion in relation to Tom. 105In dealing with Mr Standen her Honour noted that he had been arrested in June 2008 and charged with three serious offences. She accepted the material before her tended to throw doubt on his conduct between June 2006 and June 2008, accepting what was said by the Crown Prosecutor that there seemed to have been "a progression in the relationship from unfortunate to criminal in the continuum of his conduct with the people involved". She rejected the proposition that the evidence including the charge of conspiracy to pervert the course of justice brought against Mr Standen had any relevance other than on the question of credibility. 106The trial judge rejected the submission that Mr Standen and Mr Bradley did not act in good faith because they knew that the operation was not able to be authorised. She rejected the proposition they did not genuinely believe that s 7(1)(b) of the Controlled Operations Act only required, in terms of assessing harm to others, that persons in the immediate vicinity of the operation need only be considered. Her Honour also rejected the submission that a failure to obtain legal advice was reckless. 107The trial judge also rejected the submission that there was a deliberate attempt to sideline or exclude the AFP from the operation because Mr Standen and Mr Bradley knew that the AFP would not participate in an operation involving the release of drugs into the community. Her Honour rejected the proposition that Mr Bradley had deliberately engineered the exclusion of the AFP from a meeting on 2 February 2005 when the operation was discussed. She stated that what occurred after 8 February 2005 was inconsistent with an intention by Mr Bradley to sideline those officers in the belief they would take action to bring the operation to an end. She pointed out that when the AFP became aware of the operations they did not withdraw except in a formal way by ensuring that AFP officers could not be designated as law enforcement participants. 108The third component of the allegation of the absence of good faith was a submission that Mr Bradley only paid lip service to the requirements of the Controlled Operations Act. The trial judge rejected that argument on the same basis she rejected the argument that the manner the authorities were issued involved an impropriety. 109The fourth allegation of bad faith was that Mr Standen, with the support of Mr Bradley, was driven to achieve an outcome regardless of rules, policies, guidelines and the law. Her Honour rejected this argument. She said that Mr Standen did not approach the operation knowing it breached the law or being recklessly indifferent to that fact. She said the fact that Mr Standen said he was "results driven" and viewed the release of seven kilograms of cocaine into the community as morally justified, did not exhibit recklessness as to his legal obligations. 110Her Honour rejected the argument that bad faith was exhibited by the fact that reports made by Mr Bradley to the Ombudsman did not disclose that the drugs had been released to the community. She said the reports were in accordance with what was required by the reporting provisions. 111So far as Mr Standen's credibility was concerned, the trial judge pointed out that his evidence was supported in all relevant senses by other evidence, particularly by the evidence of Mr Bradley. 112In these circumstances the trial judge concluded that the contraventions of the law and the improprieties were not deliberate or reckless. 113So far as s 138(3)(g) of the Evidence Act was concerned, her Honour accepted "there has been the myriad civil proceedings" culminating in the High Court's decision and also minor disciplinary proceedings against the AFP officers, Mansfield and Nelson. She said it was unlikely proceedings would be brought against Mr Bradley and Mr Standen. 114So far as s 138(3)(h) was concerned, her Honour accepted that it would have been difficult, if not impossible, to obtain the evidence without the illegalities if the overall aim of the JFT was to apprehend all those involved. 115Her Honour also took into account that the case did not involve the police inducing the criminal behaviour. She pointed to the fact that the appellant was a willing participant. 116Her Honour's conclusion was in the following terms: "70. In the end a decision must be made, if this evidence is to be admitted, that the desirability of admitting the evidence outweighs the undesirability of doing so. This involves a balancing act. It is a relatively unpalatable situation that law enforcement agencies themselves become drug suppliers. There are few circumstances where that could be condoned. Whilst there was a risk that some end users of this cocaine may suffer adverse health consequences as a result of its distribution into the community, the evidence is that it was to be released through a pre-existing network of drug suppliers to a pre-existing clientele of drug users, and as such it seems to me the risk of such harm was not high. The High Court, of course, found that it was a foreseeable risk, which prevented the decision-maker from issuing the Controlled Operation Authorities but in terms of exercising the discretion I accept that the overall risk was outweighed by the desirability of bringing to an end this much wider drug importation and distribution network, involving the importation and supply of far greater quantities of cocaine in the past and about to be imported, and with a far wider network of criminality and corruption."

[11]

The legislative framework 117In considering the issues that are raised under these grounds it is important to have regard to the relevant statutory framework in which they arise. I have set out the relevant provisions of the Drug Act and the Customs Act above at pars [22] and [29]. The relevant provisions relating to the controlled operations authorities are ss 6 and 7 of the Controlled Operations Act and s 15M of the Crimes Act (Cth). As they stood at the time they respectively provided as follows: "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. (2) An authority to conduct a controlled operation on behalf of a law enforcement agency may not be granted unless a code of conduct is prescribed by the regulations in relation to that agency. (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. (5) The chief executive officer must keep a written record of the reasons for which the chief executive officer is satisfied as to the matters referred to in subsection (3)(a). "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) inducing or encouraging another person to engage in criminal activity or corrupt conduct of a kind that the other person could not reasonably be expected to engage in unless so induced or encouraged, or (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. (2) A person must not be authorised to participate in a controlled operation unless the chief executive officer is satisfied that the person has the appropriate skills to participate in the operation. (3) A civilian participant: (a) must not be authorised to participate in any aspect of a controlled operation unless the chief executive officer is satisfied that it is wholly impracticable for a law enforcement participant to participate in that aspect of the operation, and (b) must not be authorised to engage in a controlled activity unless it is wholly impracticable for the civilian participant to participate in the aspect of the controlled operation referred to in paragraph (a) without engaging in that activity." "15M On receiving an application that complies with section 15K or 15L in relation to a controlled operation, the authorising officer may give a certificate authorising the operation if he or she is reasonably satisfied that: (a) it is likely that a serious Commonwealth offence has been, is being or will be committed; and (b) the nature and extent of the offence, and any suspected criminal activity that is related to it, justifies a controlled operation; and (c) conducting the operation would not involve intentionally inducing a person to commit a Commonwealth offence, or an offence against a law of a State or Territory, if that person would not otherwise have intended to commit: (i) that offence; or (ii) an offence of that kind; and (d) any unlawful activity involved in conducting the operation will be limited to the maximum extent consistent with conducting an effective controlled operation; and (e) the operation will be conducted in a way that ensures that, to the maximum extent possible, any illicit goods involved in the operation will be under the control of an Australian law enforcement officer at the end of the operation; and (f) any unlawful activity involved in conducting the 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 or a sexual offence against any person; or (iv) result in loss of, or serious damage to, property (other than illicit goods); and (g) the operation will be conducted in a way that is consistent with the reporting and accountability requirements of this Part; and (h) if a person who is not a law enforcement officer is to be involved in the operation - the role to be assigned to the person could not adequately be performed by a law enforcement officer." 118Section 138 of the Evidence Act provides as follows: "(1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law."

[12]

(a) The appellant's submissions 119The appellant contended that the trial judge erred in concluding that the contraventions by the law enforcement officers were not grave or even very serious. He pointed to the fact that the offences were the subject of significant penalties including life imprisonment. 120The appellant submitted that the trial judge in coming to her conclusion was wrongly influenced by a comparison between the offences committed by the law enforcement officers and those committed by the appellant. He submitted that such a comparison was erroneous because the gravity of the charges against the appellant were taken into account in considering the matters raised in s 138(1)(c) of the Evidence Act and it was inappropriate to also take them into account in considering s 138(1)(d). 121Prior to dealing with the specific ground of appeal, senior counsel for the appellant emphasised at the hearing that the case involved two questions. First, whether the trial judge made a number of specific errors in admitting the evidence despite the unlawfulness. He identified the unlawfulness as selling several kilograms of cocaine into the community with no knowledge of where it would end up and with little or no meaningful research into the possible harm it might cause. He said the second and more fundamental question was whether the conviction was secured at too high a price. 122In relation to Ground 2, senior counsel for the appellant submitted that the gravity of the impropriety or contravention had to be assessed on its own terms. He rejected the proposition that for the purpose of s 138(3)(d) the gravity of the impropriety could be measured by what it was designed to prevent or achieve, submitting that the balancing exercise required for the purpose of s 138 should be done after all the factors in subs (3) had been considered.

[13]

(b) The Crown's submissions 123The Crown submitted that all the trial judge in fact was stating was that the law enforcement officers' motive was not to make financial gain. The Crown referred to cases dealing with s 138(3)(c) of the Evidence Act which state that it is relevant to take into account the motivations and belief of those involved in the conduct in considering the applicability of the provision, implicitly submitting that such matters could also be taken into account under s 138(3)(d): R v Dalley [2002] NSWCCA 284; (2002) 132 A Crim R 169 at [2], [3] and [5]; R v MM [2004] NSWCCA 364 at [34]; R v Camilleri [2007] NSWCCA 36; (2007) 68 NSWLR 720 at [18], [28], [31] and [32]. 124In addition to the cases relied on in the written submissions, at the hearing senior counsel for the Crown pointed to the position at common law prior to the introduction of the Evidence Act and, in particular, to what was said by Stephen and Aickin JJ in Bunning v Cross (1977) 141 CLR 54 at 80 that "[s]ome examination of the comparative seriousness of the offence and of the unlawful conduct of the law enforcement authority is an element in the process required by Ireland's case": R v Ireland (1970) 126 CLR 321. 125In that context senior counsel for the Crown submitted that it was irresistible that the findings of fact of the trial judge were that the police did not know and did not believe that what they were doing was wrong, at least as far as the most serious offences were concerned. He submitted it was always the belief of the law enforcement officers that the supply of cocaine would be duly authorised. He stated that in those circumstances a comparison of the seriousness of the conduct of the appellant and that of the Commission meant that the balancing process required by s 138 of the Evidence Act came down heavily in favour of the Crown. He submitted the way the trial judge weighed up these matters was entirely appropriate.

[14]

(a) The appellant's submissions 126The appellant submitted that the trial judge erred in seeking to balance the risk of harm to the community against the desirability of bringing the drug distribution network to an end. Referring to Gedeon v Commissioner supra at [57], the appellant submitted that the evidence did not justify her Honour's conclusion that the risk of harm was not high as the cocaine would be released to a pre-existing clientele. 127The appellant further submitted that the finding was irrelevant as the fact of the risk was the reason the authorities were invalid and the reason why no certificate under s 15M of the Crimes Act (Cth) could have been issued. 128Senior counsel for the appellant submitted at the hearing that it was not open for the trial judge to conclude the risk of harm was not high based on the evidence of Mr Standen. He also submitted that even if it was shown that the risk was not high, the trial judge's ultimate conclusion in par [70] of her judgment, set out at par [116] above, wrongly balanced the risk of harm against the desirability of conviction, thereby misapplying s 138 which required all the factors in s 138(3)(a)-(h) to be taken into account in considering whether the evidence should be admitted notwithstanding the illegality or impropriety. 129Senior counsel for the appellant also relied on what was said in Gedeon v Commissioner supra at 141-2 to the effect that a reasonable person in the position of the Commission would have foreseen that the conduct would involve a risk of seriously endangering the health of some of a numerous class of end users. He submitted that one of the reasons the federal legislature had the requirement that the drugs be kept under control was because of the danger inherent in the distribution of drugs in the community. 130Senior counsel for the appellant pointed to the evidence of Mr Standen that he decided to back his own judgment on this issue. Mr Standen did say that he believed the purchasers were likely to be those persons who had purchased some 200 kilograms of cocaine in the previous six months. This was similar to the evidence of Mr Bradley who said he believed the drugs would go to an established clientele. 131As I indicated, during the hearing the appellant sought and was granted leave to add Ground 3A of the grounds of appeal. Senior counsel for the appellant submitted that whatever beliefs were held by Mr Bradley and Mr Standen, those beliefs were not capable of establishing the extent of the risk caused by the release of the drugs into the community.

[15]

(b) The Crown's submissions 132The Crown submitted that that issue was in fact raised by counsel for the appellant at the trial. I have read the submissions referred to and whilst the risk of injury to health was the subject of argument, the defence counsel did not invite the trial judge to draw the comparison (T889-891). 133Further, the Crown submitted that her Honour's conclusion was consistent with the evidence of Mr Bradley and Mr Standen which she accepted. It is correct that both Mr Bradley and Mr Standen said that they believed the drugs would be delivered through a pre-existing network. However, Mr Standen said he did not consider it likely that first-time users would obtain the drugs, whilst Mr Bradley accepted this was a possibility. 134Finally the Crown submitted that s 138(3) of the Evidence Act does not exclusively state the matters to be taken into account. The Crown submitted that in those circumstances the trial judge was entitled to perform the balancing act undertaken by her Honour. 135At the hearing senior counsel for the Crown submitted that although there was no expert evidence as to the potential harmful effect of the distribution of the drugs, having regard to the experience Messrs Bradley and Standen had in the investigation of drug crimes, some weight could be placed on their evidence. He submitted they were not cross-examined as to the bona fides of their opinions, rather that they were reckless in going ahead on the basis of limited advice regarding the risk of health consequences. 136Senior counsel for the Crown also submitted that what the trial judge was referring to in par [70] of her judgment, set out at par [116] above, was the evidence of Messrs Standen and Bradley. 137Finally on this ground, senior counsel for the Crown submitted that in considering the adverse health consequences of distribution of the drugs into the community it was necessary to weigh that risk against what was being sought to be achieved, namely the investigation and arrest of members of a syndicate which had distributed 200 kilograms of cocaine in the previous year.

[16]

(a) The appellant's submissions 138The appellant submitted that the trial judge erred in failing to exclude evidence of the events of 8 February and 16 March 2005 because the judge had erroneously determined that evidence was not obtained in breach of a Commonwealth law. 139The appellant submitted that by 8 February 2005 the cocaine in question had been forfeited to the Crown as a consequence of s 229(1)(b) of the Customs Act and in these circumstances mere possession was an offence pursuant to s 233B(1)(a)(iv) of that Act: R v Chow (1987) 11 NSWLR 561. 140The appellant submitted that whilst her Honour correctly concluded that the events of 8 February and 16 March 2005 were capable of amounting to contraventions of the Customs Act, the defence of reasonable excuse was not available to those involved in the operation. He pointed to the fact that law officers, unless otherwise provided by statute, are in no different a position from an ordinary citizen, referring to R v Salem (1997) 96 A Crim R 421 at 422. The appellant submitted that consistent with the reasoning of Basten JA in dissent in Dowe (No 2), it should have been held that the defence of reasonable excuse was not available. 141The appellant pointed to the fact that s 233 of the Customs Act which dealt with the importation of prohibited imports other than narcotic goods, contained a specific defence for a person who possesses or conveys such goods at the direction of a Customs officer. He submitted the fact that a similar defence was not available under s 233B demonstrated that the imperatives of law enforcement were not sufficient to constitute a reasonable excuse. 142The appellant also submitted that the suggestion that law enforcement could constitute a reasonable excuse undermined the search and seizure provisions in s 203C of the Customs Act, which requires such seized goods to be delivered to the AFP to be dealt with as determined by the Commissioner. He submitted that in those circumstances the only lawful course of action was to deliver the drugs to the AFP. In fact Mr Standen's evidence (at T187) was that after the drugs were uncovered they were handed to Federal Agent Mansfield and placed in an AFP exhibits bag. 143The appellant submitted that Mr Standen must have known of these provisions and thus permitted this contravention of the Customs Act. It should be noted, however, that although Mr Standen admitted he knew of these provisions and also of s 15M of the Crimes Act (Cth), he gave evidence that he did not turn his mind to those provisions at the time. 144In these circumstances the appellant submitted that the trial judge was incorrect in concluding that the failure to comply with State and Commonwealth legislative provisions did not lead to the conclusion of an absence of reasonable excuse. He submitted that as s 15M of the Crimes Act (Cth) made it plain that operations such as the one in question could not have been approved as a Commonwealth controlled operation because of the health danger to end-users, it could not be justified by a defence of reasonable excuse. 145The appellant also submitted that the trial judge was incorrect in concluding that the evidence was not obtained as a result of the illegalities. He submitted it was clear that the evidence could not have been produced if the Commonwealth law had been complied with. In this regard he pointed to the fact that by allowing Tom to be in possession of the drugs, the officers involved in the operation had aided and abetted an offence contrary to s 233B(1)(a)(iv) of the Customs Act and s 11.2(1) of the Criminal Code (Cth). He referred to the fact that if the drugs had come into possession of the AFP they would not have been available for distribution as there was no legislative provision which would have permitted this to occur. In this respect he pointed to the evidence of Federal Agent Gray, the Acting Manager of the AFP's Sydney Office, and the evidence of Assistant Commissioner Phelan. It should be noted, however, that Agent Gray was aware of the possibility of the drugs going to end-users at least after 17 February (T478) and Assistant Commissioner Phelan was aware of the proposal to sell cocaine (T832). The evidence of Federal Agent Nelson demonstrates that he was also aware of that proposal. 146The appellant submitted that in these circumstances, regardless of the effect of the controlled operations authorities, each element of the operation was unlawful. 147At the hearing senior counsel for the appellant acknowledged that throughout his cross-examination Mr Standen maintained that he was concerned about the lawfulness of the operation and believed he was protected by the controlled operations authorities. 148Senior counsel for the appellant submitted that the formulation of a plan to dig up the cocaine and their actual digging up involved overt acts in a conspiracy to take possession of imported drugs contrary to s 233B of the Customs Act and, as her Honour found, the subsequent activities in respect of those drugs also involved a contravention of that Act. He said that once it was known that the drugs in question were imported drugs, the bona fide reliance on the controlled operations authorities would not amount to a reasonable excuse. 149Senior counsel for the appellant also submitted that the illegality produced the evidence. He submitted that in considering this issue the approach of Judge Hulme (as his Honour then was) in the second trial of Mr Dowe was appropriate. In his judgment on the voir dire in that trial his Honour made the following remarks: "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."

[17]

(b) The Crown's submissions 150The Crown submitted that the search and seizure provisions, particularly as set out in s 203C and related provisions of the Customs Act, did not apply to the retrieval of the cocaine from the bushland at Wahroonga. 151The Crown also submitted that Basten JA in Dowe (No 2) was in error in concluding that Ridgeway supra was authority for the proposition that deliberate release of drugs into circulation could not involve possession with reasonable excuse. The Crown submitted that law officers in that case were knowingly concerned in the importation of drugs in contravention of s 233B(1)(b) and s 233B(1)(d) to which that defence did not apply. The Crown submitted that the analysis of Hall J in Dowe v Commissioner of the New South Wales Crime Commission [2006] NSWSC 1312; (2006) 206 FLR 1 was to be preferred. The Crown submitted that the fact the officers were acting under a belief that what they were doing was authorised, provided a reasonable excuse. 152The Crown also submitted that the trial judge's comment that the evidence was not produced as a result of the contravention of the Customs Act was consistent with the conclusion of this Court in R v Ladocki [2004] NSWCCA 336. 153Senior counsel for the Crown pointed to the background to the events the subject of the proceedings, particularly the establishment of the JTF and the willingness of the federal authorities to grant a certificate to permit a further importation of drugs to take place. He referred to the evidence which gave rise to the opportunity to mount the operation, namely that Tom was asked by Hatfield to sell the balance of cocaine buried at Wahroonga. He referred to the evidence of Assistant Commissioner Phelan, the effect of which was that what State Police did with the imported drugs was a matter for them, and further, to his evidence that he believed that State Police could mount the operation but that the AFP could not. 154Senior counsel for the Crown submitted that the need for a Commonwealth controlled operation certificate was first raised by Basten JA in the Court of Appeal in Dowe (No 2) and by the High Court in Gedeon v Commissioner supra. He submitted that in these circumstances there was a reasonable excuse for the operation because of the fact that the officers believed at all times that the use or proposed use of the cocaine was to be authorised by the State controlled operations authorities. 155Senior counsel for the Crown also submitted that the discussion between Tom and Hatfield to which I have referred in par [11] above was not procured by the police, as the conversation was not infected by what the police were doing in relation to the controlled operation. He said there was no evidence that this was done in furtherance of a conspiracy, stating there was no evidence at that stage of any intention to supply at that time. That submission did not take account of the meeting of 2 February 2005 when the whole operation was discussed with the Commissioner of Police. 156Finally, senior counsel for the Crown submitted that if offences under the Customs Act were committed, in the circumstances they could not be described as serious or grave.

[18]

(a) The appellant's submissions 157In dealing with Ground 5(i) of the grounds of appeal, the appellant repeated his submissions in relation to Ground 2 that it was inappropriate to compare his conduct with that of the law enforcement officers. 158The appellant also submitted that the trial judge erred by understating the risk to end-users. He submitted that there was no evidence as to who would ultimately receive the cocaine or what effect it might have. He submitted that the evidence of Mr Standen that the purchasers were likely to be the same persons who purchased 200 kilograms of cocaine from the syndicate in the previous six months, and thus were unlikely to be newcomers to the situation, was not capable of establishing the degree of risk and was in any event an inadequate consideration of the position. 159The appellant also submitted that the reasoning of the trial judge overlooked the considerable danger to public safety caused by the distribution of drugs; he stated that the imposition of a sentence of life imprisonment for such offences is recognition of the danger to the community caused by their distribution including its ancillary consequences. He submitted that this risk was required to be taken into account in performing the balancing exercise required by s 138(3). 160The appellant also submitted that the trial judge in performing the balancing exercise failed to consider the extent to which the administration of justice would be brought into disrepute because of the risk that obtaining evidence in the manner undertaken would result in physical harm, and also, would depend upon acts which the legislature had criminalised. Relying on what was said by the High Court in Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 and a number of United Kingdom, Canadian and United States' authorities, R v Latif and Shahzad [1996] 1 All ER 353; (1996) 1 WLR 104; R v Mullen [2000] QB 520; R v Campbell [1999] 1 SCR 565; United States v Bogart 783 F 2d 1428 (1986); United States v Valona 834 F 2d 1334 (1987); United States v Buishas 791 F 2d 1310 (1986) and United States v Santana (1993) 6 F 3d 1 (1993), the appellant submitted that the detriment to the administration of justice was so great the public interest in conviction was outweighed. Adopting the expression used in the United States' authorities, the appellant described the conduct in the present case as outrageous. 161So far as Ground 5(ii) was concerned, the appellant submitted that the trial judge placed undue reliance on the officers' innocent misinterpretation of s 7(1) of the Controlled Operations Act and their intention to bring a criminal enterprise to an end. He submitted that this resulted in an overly restrictive view of s 138 of the Evidence Act being taken by her Honour. 162The appellant submitted that irrespective of any contravention of the relevant legislation the supply of seven kilograms of cocaine into the community could not be regarded as anything but improper and that this was known to Mr Bradley and Mr Standen. However, the evidence relied on in support of this submission rather shows Mr Bradley and Mr Standen recognised the potential harm that would flow from the release of drugs, but balanced that against what Mr Bradley described as the apprehension of people who were "suppliers of cocaine in the order of hundreds of kilos and would continue to do so unless they were apprehended". 163The appellant referred to the approval by French CJ in Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 83 ALJR 494 at [29] of the dictionary definition of impropriety as "not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong". He also referred to the need to identify the minimum standard expected and required of those entrusted with the power of law enforcement. He submitted that had her Honour approached the question in this way, she would have appreciated that the innocent belief of the officers that they were acting with the protection of a valid controlled operations authority, did not prevent their actions being improper. 164The appellant accepted that the trial judge had to conclude that the authorities did not deliberately or recklessly misinterpret s 7(1)(b) of the Controlled Operations Act. However, he submitted that once the relevant consideration was identified as the supply of drugs, its consequential harm and the effect on the administration of justice, it was evident that the operation was improper. He submitted the evidence of Mr Standen and Mr Bradley that it was a high risk and highly unusual operation, demonstrated the impropriety. In that context he referred to the evidence of Mr Standen that the proposed operation was referred to the NSW Police Commissioner because it was controversial and his acknowledgement that irrespective of the legislation, the proposal was controversial in its own right. 165The appellant submitted that the JTF did not conduct itself within the confines of accepted police practice and that the members of the JTF themselves believed they were acting at the very boundary of what was permitted by law. The appellant referred to the evidence of Mr Bradley that what occurred was a radical departure from usual practice and high risk in the context of drugs going into the community, and also to the evidence of Federal Agent Gray that it was near the boundaries of the law. He referred to the evidence of Mr Bradley that the views of the NSW Commissioner of Police were significant because his officers would be involved in a controlled operation which, but for the execution of the controlled operations authority, would involve those officers in criminal offences. It should be noted that immediately prior to giving this evidence Mr Bradley stated that he had considered whether harm would be caused to persons within the immediate vicinity of the operation, which was what he believed was required by s 7(1)(b) of the Controlled Operations Act. 166The appellant also pointed to the fact that each of Mr Bradley and Mr Standen were aware that the AFP was critical of the operation. Mr Standen acknowledged that he was told that this was the case by Federal Agent Gray and earlier by Federal Agent Nelson. However, he denied that Mr Gray told him that the AFP had said they were not going to be involved; rather he said that Mr Gray had told him the AFP objected in principle and would not participate formally in the activities. He said that Mr Gray told him that he was not withdrawing AFP personnel but that they would only take an observing position in those parts of the operation involving supply. The appellant also pointed to the fact that each of Mr Bradley and Mr Standen acknowledged that other members of the staff of the Commission had expressed concerns about the operation. 167The appellant further contended that in considering s 138(e) of the Evidence Act the motivation of the officers to prevent crime was irrelevant. 168So far as Ground 5(iii) was concerned, the appellant submitted that the trial judge erred in dismissing or minimising the relevance of the other improprieties to which reference was made in her judgment. In particular, he pointed to the failure to comply with basic and established protocols relating to the handling of proceeds of crime and the use of informers. 169Finally in relation to Ground 5 the appellant contended that the conduct in question had to be considered both individually and as a whole. He submitted that the trial judge applied the wrong test, unnecessarily excluded relevant evidence, took into account irrelevant considerations and ultimately arrived at a conclusion which was unreasonable.

[19]

(b) The Crown's submissions 170In relation to Ground 5(i) the Crown relied on its submissions in respect of Grounds 2 and 3. The Crown submitted that the expectation that drugs would be supplied to an established clientele of users assisted in the conclusion that the risk to such groups would be balanced by the anticipated arrest of persons involved in substantial trading of the substance. The Crown stated that this expectation was consistent with views expressed by Adams J in Ward v The Queen [2007] NSWCCA 22; (2007) 168 A Crim R 545 at [19]. 171The Crown also submitted that it was incorrect to suggest there would be impropriety even if the operation had been lawful. It was submitted that it was for the legislature to determine whether the investigation of crime should be free of the constraints of the criminal law. The Crown referred to what was said by Basten JA in Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 64 NSWLR 612 at [37]: "Before leaving these broad principles, it is necessary to note theindeterminacy of the test identified by reference to inconsistency with 'the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement': Ridgeway (at 36). Such a test invites assertion and counter-assertion, with no objective touchstone to assist in deciding which to accept and which to reject. It is at least doubtfulwhether a majority of the Australian community would have shared the High Court's view of the 'entrapment' of Mr Ridgeway: see for example, the comments of McHugh J (at 85). The answer is not necessarily to eschew the task, but to establish, in advance, standards of conduct against which a claim of impropriety can be assessed. Where no relevant pre-existing standard has been breached, it should be a rare case in which impropriety would lead to exclusion. (Of course, standards may themselves require scrutiny, but no relevant standard was identified in the present case.) And the test of such a case must involve judicial appraisal of all potentially relevant public policy considerations, being the task actually undertaken in Ridgeway. Appeals to 'community standards' will tend to substitute subjective reactions for careful analysis, albeit of ill-defined concepts." 172The Crown also pointed to what was said by Basten JA in Robinson v Woolworths Ltd supra that these principles should be applied in considering impropriety for the purpose of s 138. 173So far as Ground 5(iii) was concerned, the Crown submitted that the improprieties complained of were not in fact improprieties and did not have any causal connection with obtaining the evidence in issue.

[20]

Consideration 174Section 138 of the Evidence Act requires a similar balancing process to that previously required by the criminal law in respect of evidence illegally obtained: Director of Public Prosecutions v Marijancevic [2011] VSCA 355; (2011) 33 VR 440 at [17]-[18]. The manner in which that process is to be carried out has been modified by s 138, in particular, in two ways: first, the onus is cast on the party seeking to rely on the illegally or improperly obtained evidence to satisfy the court that the desirability of admitting the evidence outweighs the undesirability; second, the balancing exercise is to be carried out at least by reference to the criteria in s 138(3). 175In these circumstances, the principles laid down in cases such as R v Ireland supra, Bunning v Cross supra and Ridgeway supra, remain relevant to the consideration of the issues raised by s 138: Robinson v Woolworths Ltd supra at [21]-[23]; Fleming v The Queen [2009] NSWCCA 233; (2009) 197 A Crim R 282 at [18]. 176I have referred to what was said by Stephen and Aickin JJ in Bunning v Cross supra at par [124] above. To this may be added what was said by Mason CJ, Deane and Dawson JJ in Ridgeway supra at 30-31 to the following effect: "At least since Bunning v Cross, it has been 'the settled law in this country' that a trial judge has a discretion to exclude prosecution evidence on public policy grounds in circumstances where it has been obtained by unlawful conduct on the part of the police. That discretion is distinct from the discretion to exclude evidence of a confessional statement on the grounds that its reception would be unfair to the accused. The discretion extends to the exclusion of both 'real' (or non-confessional) evidence and confessional evidence. As Barwick CJ pointed out in R v Ireland in a judgment with which the other four members of the Court agreed, the rationale of the discretion is that convictions obtained by means of unlawful conduct 'may be obtained at too high a price'. In its exercise, a trial judge must engage in a balancing process to resolve 'the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law'. The basis in principle of the discretion lies in the inherent or implied powers of our courts to protect the integrity of their processes. In cases where it is exercised to exclude evidence on public policy grounds, it is because, in all the circumstances of the particular case, applicable considerations of 'high public policy' relating to the administration of criminal justice outweigh the legitimate public interest in the conviction of the guilty."(Citations omitted) 177The exercise of the discretion does not depend on the question of fairness for the accused or for that matter on whether the accused was induced to commit the offence in question: R v Camilleri supra at [31]-[32]. Rather, as was said in Ridgeway supra, it depends on considerations of "high public policy" relating to the question of whether the effect of the illegality or impropriety on the administration of justice outweighs the legitimate public interest in the conviction of the guilty. 178During the course of the hearing there was some discussion surrounding the question of whether the exercise of the discretion to admit or reject evidence under s 138 is only reviewable if errors in the sense referred to in House v The King (1936) 55 CLR 499 are demonstrated. The question cannot be said to be finally settled: Fleming v The Queen supra at [22]; Marijancevic supra at [13]; Director of Public Prosecutions v MD [2010] VSCA 233; (2010) 29 VR 434 at [27]; Em v The Queen [2007] HCA 46; (2007) 232 CLR 67 at [55]; Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 518-519; contra Riley v R [2011] NSWCCA 238 at [161], albeit relating to s 137 of the Act; Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124 at [39], [41]-[43]. However, as I have concluded that the trial judge did fall into error in her consideration of s 138 it is unnecessary to pursue this matter further.

[21]

Ground 2 179It is correct as the appellant contended that s 138(3)(c) and s 138(3)(d) of the Evidence Act deal separately with the nature of the offence and the gravity of the impropriety. Nevertheless they are two factors to be taken into account in balancing the matters referred to in the subsection. 180I do not think that in those circumstances the approach of the trial judge demonstrated error. Her Honour was required for the purposes of s 138(3)(d) to assess the gravity of the contravention of the law enforcement officers. As I have pointed out at par [102] above, she recognised that the conduct of the offenders and the law enforcement officers was similar, but stated that the latter conduct was mitigated by the motivation and belief of those involved. Her Honour was thus giving proper consideration to the issues raised by s 138(3)(d). The fact that in the course of reaching that conclusion she compared the appellant's conduct to that of the law enforcement officers, does not lead to the conclusion that she failed to properly consider the matters referred to in that subsection. In R v Dalley supra, Spigelman CJ in dealing with s 138(3)(c) cited with approval what was said by Stephen and Aickin JJ in Bunning v Cross supra, that some examination of the comparative seriousness of the offences is part of the balancing process: see also R v MM supra at [54]. It seems to me that the trial judge was doing no more than undertaking this evaluation. 181It follows that Ground 2 is not made out.

[22]

Grounds 3 and 3A 182It seems to me that there was no evidence to justify the conclusion of the trial judge that the risk involved in releasing a significant amount of cocaine into the community was not high. The trial judge was justified in my opinion in accepting the evidence of Mr Standen and Mr Bradley as investigators experienced in the area, that the drugs would be released through a pre-existing network and that it was likely that a significant portion of the drugs would be distributed to a pre-existing clientele. In that context, however, it must be borne in mind as I pointed out earlier that Mr Bradley accepted that it was possible that first-time users would obtain the drugs, whilst Mr Standen stated that he did consider that it was likely. 183However, it does not seem to me that the opinions of Mr Bradley and Mr Standen were capable of proving the fact that the risk of harm to the community was not high. There is nothing to suggest that their experience as law enforcement officers qualified them to express this view and apart from expressing the opinion that the drugs would go to a pre-existing clientele, they did not provide any factual basis for their conclusion. 184In these circumstances it is important to bear in mind what was said by the High Court in Gedeon v Commissioner supra at [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 para (b) of s 7(1) of the LECO Act." 185It follows in my opinion that Ground 3A of the grounds of appeal has been made out. 186That does not mean that the opinions of the law enforcement officers were irrelevant. The trial judge was entitled to accept their evidence that they believed that the risk involved in distributing the drugs was outweighed by the risk to the community in permitting the operation of the syndicate to continue. Her Honour was entitled to take that evidence into account in the ultimate exercise of her discretion and in considering the gravity of the contravention for the purpose of s 138(3)(d). The appellant did not contend that it could not be taken into account but rather complained that the trial judge placed too much weight on the matter. 187So far as Ground 3 is concerned, if in fact it was the case that all her Honour considered in the exercise of her discretion was the risk of harm to the community in distributing the drugs as compared to the risk of allowing the syndicate to continue to operate, she would have fallen into error both in failing to take into account all of the matters referred to in s 138(3) and in failing to consider the matters which underpinned the section referred to in Ridgeway supra in the passage I have cited above: see also Pollard v The Queen (1992) 176 CLR 177 at 196 per Brennan, Dawson and Gaudron JJ; 203-204, 209 per Deane J, Mason CJ agreeing at 184. 188However, her Honour had dealt in the paragraphs preceding par [70] of her judgment with each of the matters referred to in s 138(3) of the Evidence Act and her consideration of those matters informed the conclusion she ultimately reached. This was made clear in the concluding paragraph of her judgment to the following effect: "[72] Taking into account all of the matters which I am required under Section 138(3) and those other matters to which I have referred, on balance I accept that the desirability of admitting the evidence, despite its being in contravention of Australian law, outweighs the undesirability of doing so and it will be admitted in the exercise of my discretion under Section 138(1) of the Evidence Act. The notice of motion is thus dismissed." 189It follows that Ground 3 has not been made out.

[23]

Ground 4 190Subject to the defence of reasonable excuse, the trial judge accepted in par [50(c)] of her judgment that the possession and handling of the cocaine by the law enforcement officers and by Tom would amount to a contravention of s 233B of the Customs Act. Her Honour concluded, however, that the defence of reasonable excuse was available and that if there were contraventions then they did not produce the evidence. 191The trial judge identified the reasonable excuse in par [50(c)] of her judgment in the following terms, "namely that they committed these acts with a view to investigating and prosecuting serious drug offences both past and future". She said that this was not affected by the fact that a Commonwealth controlled operations certificate could not be issued, preferring the approach of Judge Hulme (as his Honour then was) in an earlier trial of Mr Dowe to that of Judge Murrell in another trial of Mr Dowe and the views of Basten JA in Dowe (No 2). 192I do not believe that the matters identified by the trial judge constitute a reasonable excuse. A contravention of s 233B(1) arises if the person charged with the offence has knowledge that he or she had the prohibited import in their possession: He Kaw Teh supra at 545, 584 and 603. In the present case it was not in dispute that the law enforcement authorities knew that the drugs were prohibited imports. 193In He Kaw Teh Gibbs CJ, with whom Mason J agreed, described at 539 the defence of reasonable excuse as providing protection to a person who has taken drugs from an addict and is about to destroy them, because he found them and is taking them to the police or because he is an officer of Customs who has confiscated them. Brennan J at 588 said the defence was needed to exempt police and customs officers who have such prohibited imports in possession from time to time in the course of their duty and innocent people who find themselves in possession of narcotic goods either by accident or as a consequence of the action of others. 194Although I accept that these categories of reasonable excuse are not exhaustive, the extent of the defence must be considered in light of two matters. The first is the statutory context itself. The Customs Act contains elaborate provisions for the forfeiture, seizure and ultimate condemnation of prohibited imports: see s 229(1)(b), s 203A, s 203C, s 205 and s 205C. Importantly s 204(4) provides for narcotic goods to be delivered to a member of the AFP, whilst s 207 empowers the Commissioner of Police or a Deputy Commissioner of Police to deal with the goods in such manner as he or she considers appropriate. The provision leaves no room for the goods to be used in an unauthorised operation. 195Further, s 15M of the Crimes Act (Cth) makes specific and limited provision for controlled operations of the nature of the one said to provide the reasonable excuse in the present case. 196The trial judge did not contend that a mere belief on the part of the law enforcement officers that they were acting lawfully would provide a reasonable excuse for the purpose of s 233B. Mere ignorance of the law is not an excuse. 197The position may well be different if, for example, the officers believed that the drugs were not imported drugs or that they were acting under a valid Commonwealth controlled operation certificate when it was in fact invalid. That is not the case here. 198For these reasons and for the reasons given by Basten JA in Dowe (No 2) at [65]-[71], I am of the opinion that the defence of reasonable excuse was not made out and the trial judge erred in concluding to the contrary. 199I am also of the view that the trial judge erred in concluding that the offences did not produce the evidence. 200In my opinion the approach of Judge Hulme on this issue, to which I have referred in par [149] above, is correct. At the very least but for the taking of possession of the drugs by the State law enforcement officers, the conveying of the drug to the Commission's office, the possession of the drugs by Tom and the conveyance by Tom of two kilograms of the drugs to Five Dock on 8 February and 750 grams on 17 March 2005, constituted offences under the Customs Act which produced the evidence. 201However, I do not believe that the illegalities produced the evidence of the communications of 6 February 2005. It was by no means clear that there was any agreement to supply the drugs at that stage, although it was clearly in contemplation. Even if there was such an agreement it did not produce the conversation in the sense I have described. In any event, this ground of appeal is only directed to the events of 8 February 2005 and 16 March 2005. 202It follows that this ground of appeal has been made out.

[24]

Ground 5(i) 203In one sense it is unnecessary to deal with this ground as having regard to the errors to which I have already referred it will be necessary to evaluate whether the evidence was properly admitted. However, it does seem to me that if in fact her Honour properly considered each of the factors in s 138(3) and the conclusion which she reached was an appropriate exercise of her discretion, the fact that she did not refer to the underlying rationale for excluding such evidence, would not indicate error. 204In this context care must be taken in placing reliance on the overseas authorities to which the appellant referred. Thus the test prescribed by Lord Steyn in R v Latif and Shahzad supra at 112, being whether there has been an abuse of process affronting public conscience, demonstrates a somewhat different approach to that mandated by s 138(3) and for that matter the earlier common law authorities in this country. Similarly, the Canadian approach was also based on the doctrine of abuse of process, R v Campbell [1999] 1 SCR 565 at [42]; although somewhat similar to the common law position in this country, the rationale of the doctrine was said to be to protect the integrity of the court's process and the administration of justice from disrepute: R v Campbell [1999] 1 SCR 565 at [43]. The United States' authorities relied upon emphasised the limited ambit of the doctrine outside the right of the accused to due process. For instance, in United States v Santana supra at 9-10, the right to stay or dismiss charges produced by evidence illegally obtained was said to be as a result of invoking disciplinary powers to secure enforcement of better prosecutorial practice and to reprimand those who failed to observe it. 205The other mattes relied on by the appellant were the matters raised in respect of Ground 2 and an understatement of the risk to end-users. I have dealt with these matters in dealing with Grounds 2 and 3. 206It follows that subject to the errors to which I have referred in dealing with the previous grounds, this ground is not made out.

[25]

Ground 5(ii) 207As with Ground 5(i) it is strictly unnecessary to deal with this ground because of the need to reconsider the admissibility of the evidence. However, as the matters raised are relevant to the overall assessment of the admissibility of the material and particularly to the matters referred to in s 138(3)(e), it is convenient to deal with them at this stage. 208As I indicated, this ground of appeal relied on the proposition that the distribution of drugs into the community was improper, irrespective of any contravention of the relevant legislation and irrespective of the trial judge's finding that there was not deliberate or reckless misinterpretation of s 7(1)(b) of the Controlled Operations Act. It was submitted that Mr Standen and Mr Bradley knew that their conduct was improper and proceeded in reckless disregard of that fact. I do not agree for the following reasons. 209First, the trial judge made no finding that either Mr Bradley or Mr Standen knew that their actions irrespective of their legality were improper. To the contrary, her Honour found at par 55 of her judgment that all of the officers involved in the operation understood and believed that they were handling cocaine and money as part of an authorised operation which aimed to expose a very significant cocaine importing syndicate. Further, she accepted the evidence of Mr Bradley and Mr Standen that they believed in terms of assessing the harm to others that they were only required to consider those in the immediate vicinity of the operation. Further, the trial judge accepted Mr Standen's evidence that he believed that it was morally justifiable to distribute seven kilograms of cocaine into the community having regard to what it was designed to prevent. 210Nor do I believe that her Honour was in error in finding that Mr Bradley and Mr Standen were not reckless. In R v Helmhout [2001] NSWCCA 372; (2001) 125 A Crim R 257 at [33], Hulme J stated the concept "must involve as a minimum some advertence to the possibility of, or breach of, some obligation, duty or standard of propriety, or of some Australian law or obligation and a conscious decision to proceed regardless or alternatively a 'don't care' attitude generally". I agree with this formulation subject to the qualification in Marijancevic supra at [85] that the reference to "don't care" must be understood as meaning that the person in question recognised that the conduct might be improper but determined to engage in it not caring whether it was or was not. 211In the present case I do not think that the conduct of either Mr Bradley or Mr Standen can be characterised as reckless in that sense. It is true that Mr Bradley recognised that what occurred was a radical departure from usual practice and high risk. This is what prompted him to seek the approval of the NSW Commissioner of Police. Further, so far as harm was concerned, he considered that he was only required by law to consider harm to those persons in the immediate vicinity. This view was consistent with the view of the majority in Dowe (No 2) per Spigelman CJ at [44]-[53], Handley AJA agreeing. Mr Standen's evidence was to the same effect. 212It also must be remembered that Mr Bradley and Mr Standen believed they were acting in accordance with valid controlled operations authorities. In those circumstances when considering according to Ridgeway supra at [36], whether the conduct was inconsistent with minimum standards which a society should expect of those entrusted with law enforcement, conduct carried out under an authority validly issued would not in my opinion be improper in that sense as it was effectively condoned by the legislature. Although the authorities were not valid in this case, a bona fide belief in their validity tells strongly against any reckless disregard of the impropriety about which complaint is made. 213It follows in my opinion that Ground 5(ii) has not been made out.

[26]

Ground 5(iii) 214The appellant's submissions focused on the failure to observe protocols relating to the handling of the proceeds of crime and the running of informers. I have set out the nature of these improprieties and the factual finding of the trial judge in pars [94]-[97] above. In my opinion there was no causal link between these improprieties and the evidence which was produced. 215It follows that Ground 5(iii) has not been established.

[27]

Should the evidence have been admitted? 216Having regard to the conclusions I have reached on Grounds 3A and 4, it is necessary to consider whether it was appropriate to admit the evidence. At the risk of repetition, the task required by s 138 of the Evidence Act is to consider the desirability of admitting evidence illegally or improperly obtained against its undesirability, taking into account the matters in s 138(3) and bearing in mind that the ultimate question posed in Ridgeway supra is to resolve the conflict between the benefit of bringing a wrongdoer to conviction, against the adverse impact upon the integrity of court processes by giving curial approval or encouragement to the unlawful conduct of those whose task it is to uphold the law. 217Turning to s 138 itself, for the purpose of s 138(3)(a) there is no doubt that the evidence has high probative value. It directly involved the appellant in the serious drug offences with which he was charged. As the trial judge pointed out, transfer of the cocaine from Tom to the appellant was crucial to the Crown case. So much was not in dispute. 218So far as s 138(3)(b) is concerned, the importance of the evidence is self-explanatory. Without it the whole of the Crown case would have failed. 219So far as the nature of the offence is concerned, the offences are extremely grave. As the trial judge pointed out, the maximum penalty for the charge the subject of Count 1 was life imprisonment and in respect of Count 2, 20 years' imprisonment. Further, as the appellant submitted, the distribution of drugs within the community can have serious and significant adverse consequences to the health and welfare of the community including not only to the health of end-users, but also as a result of the ancillary criminal consequences that can arise from the activities of drug trafficking and drug dependence. In R v Dalley supra the majority (Spigelman CJ and Blanch AJ) stated at [2] and [102] that the more serious the offence, the more likely it is that the public interest requires the admission of the evidence: see also R v Camilleri supra at [33]. 220Section 138(3)(d) requires assessment of the gravity of the impropriety or contravention. As I have indicated, the conduct of the law enforcement officers involves similar breaches of the Drug Act as the offences said to have been committed by the appellant, as well as contraventions of s 233B of the Customs Act. In one sense the fact that contrary to the finding of the trial judge there were contraventions of the Customs Act, adds little to the overall criminality of the conduct of the law enforcement officers. The contraventions arose out of identical conduct to that which constituted the offences under the Drug Act and for which, having regard to the provisions of s 4C(2) of the Crimes Act (Cth), no additional punishment could be imposed. Nevertheless, the fact remains that the actions involved a serious breach of Commonwealth law and one that having regard to the provisions of s 15M of the Crimes Act (Cth) could not have been undertaken under the protection of a controlled operations certificate. 221Further, the activity involved the deliberate release of a significant quantity of drugs into the community. As I have indicated, there was no evidence to support the proposition that this course would have a limited harmful effect. To the contrary, just as with the contraventions by the appellant, there was a significant risk of harm to members of the community by the release of such drugs. This adds to the gravity of the conduct, whether it is considered as a consequence of the contravention of the legislation or as a separate impropriety. 222Against these matters must be put the fact that the law enforcement officers, in particular Mr Bradley and Mr Standen, held a bona fide belief that they were entitled to carry out the operation by virtue of the controlled operations authorities and that in assessing the harm to the community they believed they were only required to consider those persons in the vicinity of the operation. Such an approach had judicial support at least up to the time of the decision in the High Court in Gedeon v Commissioner supra. In addition, regard must be had to the findings of the trial judge that the officers acted in good faith so as to apprehend those responsible for the operation of a significant drug syndicate. Although it is undoubtedly true that the end does not necessarily justify the means, the bona fides of the law enforcement officers and the motivation for their actions are relevant in assessing the gravity of these contraventions or improprieties. 223There was no suggestion that the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights. 224So far as s 138(3)(g) is concerned, the only proceedings apparently brought in relation to the impropriety and contravention were minor disciplinary proceedings against Mr Nelson and Mr Mansfield, two of the AFP Agents involved in the operation. 225So far as s 138(3)(h) was concerned, the trial judge concluded that it would have been difficult, if not impossible, to obtain the evidence without the illegalities if the overall aim of the JTF was to apprehend all those involved. No issue was taken with that conclusion or the manner in which the trial judge dealt with s 138(3)(h). In particular, it was not suggested the evidence could have been obtained by an operation having the protection of both State and Commonwealth controlled operations certificates, being one which would cease at the time the drugs were passed to the appellant. In these circumstances it is unnecessary to pursue this matter further. 226In all the circumstances and bearing in mind the Crown bears the onus of establishing that the evidence should have been admitted, I am satisfied that her Honour was correct in admitting the evidence. The offences the subject of the charges were significant and there was a significant public interest in obtaining the conviction and preventing the continued operation of the syndicate. Against that, the contraventions by the law enforcement officers were also serious and involved a significant risk to the community having regard to the release of the drugs. However, in light of the findings of the trial judge that Mr Standen and Mr Bradley bona fide believed that they both were acting lawfully and had taken adequate account of the interests of the community in the manner prescribed by the statute, I consider that on balance it was appropriate to admit the evidence. 227The conclusion I have reached is consistent with that reached by this Court in Dowe (No 2). Although the arguments presented were somewhat different and the cross-examination of Mr Bradley and Mr Standen was more extensive in this case, having regard to the factual findings of the trial judge the ultimate issue confronting the Court in each case was the same. Although I have not relied on what was said by the Court in reaching its conclusion in Dowe (No 2), the view I have taken in this case is consistent with it. 228It follows that the trial judge was not in error in admitting the evidence.

[28]

Grounds 6 and 7 229These grounds of appeal are as follows: "6) The learned trial Judge erred in preventing the appellant from cross-examining Mr. Standen in relation to charges which were pending against the witness and in particular: i) Her Honour erred in concluding, in the absence of evidence, that the answers to the questions the appellant intended to put to Mr. Standen would tend to prove that Mr. Standen had committed an offence against a law of a foreign country; and ii) Her Honour erred in concluding that it was not in the interests of justice that Mr. Standen be required to answer questions in relation to his pending charges, because, if required to answer such questions, Mr. Standen would be required to disclose his defence, and the certificate would not protect him against derivative use of the information; 7) Alternatively, her Honour erred in refusing to adjourn the appellant's trial, pending the outcome of the proceedings against Mr. Standen."

[29]

Background 230At the time Mr Standen gave evidence on the voir dire at the trial of the appellant he had been charged with three serious offences. The charges were: first, one count of conspiracy to import a commercial quantity of pseudoephedrine between 1 June 2006 and 2 June 2008; second, one count of conspiracy to supply 300 kilograms of pseudoephedrine between those same two dates, that being not less than a large commercial quantity; and third, one count of conspiracy to pervert the course of justice between those two dates by agreeing that he would use the knowledge and information obtained by him to avoid proceedings being instituted or successfully prosecuted with respect to an offence of importing a substance in contravention of Commonwealth law. A Mr Bakhos Jalalaty was charged on the same indictment with the same three offences. 231There was tendered by the appellant on the voir dire a body of material relating to these charges. It included the AFP Facts Sheet summarising the facts on which the charges were based, a record of interview conducted with Mr Standen relating to the charges brought against him and various items of evidence including telephone intercepts said to support the charges. The Facts Sheet contained allegations that certain acts carried out as part of the conspiracy the subject of the charges occurred in the Netherlands, Pakistan and the United Arab Emirates. They included communications between alleged members of the syndicate in Netherlands and alleged members of the syndicate in Pakistan concerning the quality of 1,000 kilograms of pseudoephedrine, communications between Dutch members of the syndicate and Mr Jalalaty relating to the alleged importation of the drugs, discussions between Mr Jalalaty and members of the syndicate in Pakistan, conversations between Mr Standen and Mr Jalalaty relating to payments to various parties in Lahore and Karachi and various conversations and emails between Sydney, Dutch and Pakistani syndicate members. The Facts Sheet, however, did not allege that any overt acts in the conspiracy were carried out by Mr Standen outside Australia. 232Mr Standen was cross-examined on the voir dire for over three days, the cross-examination occupying some 230 pages of transcript. Towards the end of the cross-examination senior counsel then appearing for the appellant indicated that he wished to cross-examine Mr Standen on matters surrounding the charges brought against him. These included the receipt of money from alleged co-conspirators, correspondence indicating what persons should be alert to when near a container of drugs, the way emails could be used without detection, the use of pseudonyms in emails, trips to Dubai, reference to individuals in the Netherlands, the question of Mr Standen's impecuniosity, a proposal by him to co-opt other members of his family in importation events, discussions about precursors and chemicals, alertness to avoid detection, discussions about a story to be told if detected, discussions concerning transfer of funds through Austrac, discussions concerning the appointment of some person to the Commission inappropriately and sending money via a relative in Hong Kong. 233Mr Standen was represented by counsel who objected to the cross-examination on the basis that the evidence may tend to prove that Mr Standen was guilty of an offence under Australian law and the law of another country and that having regard to the provisions of s 128(4) of the Evidence Act, he should not be required to give such evidence. In addition to tendering material demonstrating that Pakistan, the United Arab Emirates and the Netherlands were signatories to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Convention) and that pseudoephedrine was on the list of precursors issued by the International Narcotics Control Board, the appellant tendered material from the website of the Ministry of Justice of the Netherlands. This material stated that "[m]ost acts involving drugs which are offences in other countries are likewise offences in the Netherlands." It also stated that the import or export of hard drugs was an offence, as was the illegal production of and traffic in precursors, money laundering and planning an offence. It also stated that Dutch policy on law enforcement is "more explicit than in some other countries, which operate along the same lines in practice." 234The material was admitted without objection. Further, as senior counsel for the appellant properly accepted at the hearing of the appeal, the trial judge was asked to exercise her discretion on the basis that it was not contended that Mr Standen would not be liable to prosecution under foreign law. 235In a judgment dated 20 August 2009 the trial judge declined to permit counsel for the appellant to cross-examine Mr Standen on material relating to those charges. This decision is the subject of Ground 6. 236Thereafter the appellant applied for an adjournment of the proceedings against him pending the conclusion of the trial of Mr Standen. The application was refused. This ruling is the subject of Ground 7. 237Mr Standen was convicted of the offences charged against him on 11 August 2011. The appellant seeks to rely on this in support of his contention that an adjournment should have been granted. Ultimately it was agreed between the appellant and the Crown that in considering this issue regard could be had to the remarks made on the sentencing of Mr Standen but not to the Crown address or the evidence at his trial. 238In his remarks on sentencing Mr Standen, James J, the trial judge in those proceedings, made the following comments: "[20] The jury in seeing and hearing the prisoner give evidence for approximately 25 days had an extended opportunity to assess his general credibility and to assess whether the explanations he offered of particular items of evidence might reasonable possibly be true (sic). It can be inferred from the verdicts of guilty returned by the jury that the jury formed an adverse view of Mr Standen's credibility and rejected, as not even reasonably possibly being true, at least many of the explanations he proffered of apparently incriminating evidence." See R v Standen [2011] NSWSC 1422. 239James J found that as a result of payments made by a co-conspirator Mr Kinch to Mr Standen in December 2005 and January and February 2006, Mr Standen was irretrievably corruptly compromised as far as Mr Kinch was concerned, although his Honour accepted that that payment was not part of any criminal enterprise which had been entered into. 240James J found that the offending in respect of the offences the subject of the three charges commenced in early 2006. He stated that a payment of $1 million in about February 2006 to Mr Jalalaty was to develop a business as a cover or front for an illicit importation. 241In describing Mr Standen's role in the commission of the offences his Honour stated that Mr Standen, drawing on his knowledge and experience, advised Mr Jalalaty as to what steps should be taken to lessen the risk of the criminal enterprise being detected, that he made inquiries of officers of law enforcement authorities for the purpose of ascertaining whether shipments of the illicit substance had been detected by Customs and that from time to time he acted as an intermediary between Mr Kinch and Mr Jalalaty. He found that for many months Mr Standen knew what substance was going to be imported, how much was to be imported, its value and that he expected to receive a share of the profits of the venture. 242James J found that Mr Kinch and Mr Standen were principals with respect to the importation of the pseudoephedrine into Australia and that the proposed quantity to be imported was not less than 300 kilograms.

[30]

The judgment of the trial judge 243In her judgment on this issue the trial judge noted that in relation to all the allegations of illegality or impropriety put to Mr Standen, he asserted that he was at all times acting in good faith, either not turning his mind to some of the issues said to be best practice for law enforcement officers or not being aware of the existence of other matters and in any event, that he never had any deliberate intention to act improperly or in contravention of the law. Further, she noted that he denied acting recklessly. 244Her Honour recognised that in those circumstances the credibility of Mr Standen was relevant to the issue before her on the voir dire. 245Her Honour noted that at the time the issue the subject of this judgment ultimately arose, counsel for the appellant had completed his cross-examination of Mr Standen on all issues except matters relating to the charges brought against him. The trial judge was supplied with a list of issues on which it was proposed to cross-examine and noted that it would include cross-examination to suggest Mr Standen was guilty of the offences with which he had been charged and may also suggest earlier criminality. She stated that as she understood the position, depending on his answers, it may be suggested to him that he had criminal involvement with the informer Tom including money laundering connected with the supply of illegal drugs outside police operations and similar matters. 246In these circumstances the question arose as to whether Mr Standen should be required to be cross-examined on these matters, albeit with the benefit of a certificate under s 128 of the Evidence Act. Her Honour was informed that Mr Standen would object to answering the questions on the grounds set out in s 128(1) of the Evidence Act. 247Her Honour accepted there would be reasonable grounds for the objection and that she would be obliged to inform the witness that he need not give the evidence unless required to do so by virtue of s 128(4) of the Evidence Act. The effect is that if the witness is required to give the evidence, he or she would obtain the benefit of a certificate under the section which prevents the evidence being used in proceedings in a New South Wales court: Evidence Act, s 128(7). 248Her Honour accepted that she could only require the evidence to be given if she was satisfied that the evidence did not tend to prove Mr Standen committed an offence against or arising under the law of a foreign country and that the interests of justice require the evidence to be given: s 128(4). 249The trial judge accepted on the basis of the statement of facts against Mr Standen tendered in the proceedings and a folder of transcripts relating to the charges, that some of the activities alleged to have occurred between June 2006 and June 2008 in the drug trafficking syndicate of which he was a member occurred in the Netherlands, Pakistan and the United Arab Emirates. The trial judge noted that all three countries were signatories to the Convention, which included pseudoephedrine as a precursor used in the illicit manufacture of narcotic drugs and psychotropic substances. 250In these circumstances the trial judge concluded in the absence of argument or suggestions to the contrary, that it was contrary to the law of each of those countries to manufacture, supply, trade in, import, export or otherwise deal with such substances. She also accepted from evidence tendered from the Netherlands Prosecutor's Office that there were criminal offences created in that country involving the sale, transport, production, import or export of such substances, or planning or intending to carry out such activities. She also accepted from that evidence that Dutch law created offences relating to money laundering surrounding such activities. 251However, the trial judge acknowledged that there was no evidence before her from which she could make a finding that an offence of the nature of those charged against Mr Standen in Australia, namely conspiracy to commit any of the substantive Dutch offences existed, and further, even if so whether some of the matters in the statement of facts tendered before her would be evidence under Dutch law to prove that conspiracy. 252Nevertheless the trial judge reached the following conclusion: "However, taking all of that into account, and given the status of the United Nations Convention and the fact of signature by each of the relevant four countries, and the serious matters which that Convention seeks to control, I am satisfied at least for the purposes of this application that for each of those steps in the conspiracy alleged against Mr Standen where events occurred within another country, and in general terms because of the involvement of at least two Dutch nationals who have now been arrested, that at least some of the questions which Standen would be asked if permitted, would tend to prove that he had committed an offence against or arising under the law of a foreign country, more probably than not contrary to Dutch law." 253She concluded in those circumstances she could not direct Mr Standen to give evidence which would tend to prove he had committed such offences. 254Against the possibility that she was incorrect in reaching that conclusion and having regard to the fact that not all of the events either occurred outside Australia or involved others outside Australia, her Honour proceeded to consider whether it was in the interests of justice that Mr Standen be compelled to answer such questions: s 128(4)(b). 255Her Honour determined that the interests of justice both in the trial and more generally did not require Mr Standen to answer those questions. She stated that she did not accept that the evidence which may suggest criminal behaviour on the part of Mr Standen was of great significance; she stated that such evidence could only go to credibility. 256Further, the trial judge noted that the source material which would have formed the basis of the cross-examination was tendered before her and in considering the question posed by s 138, she would be entitled to draw such inferences as were available from that material. Her Honour said the only distinction would be that there would be no opportunity to explore explanations given by Mr Standen in respect of the material. 257She then considered the position of the appellant and recognised that he was facing very serious charges, a matter relevant to take into account in considering the interests of justice. However, she also took into account that subject to the questions of admissibility it was a strong Crown case. 258The trial judge took into account the position of Mr Standen and noted that the general principle was that he was not obliged to disclose his defence; her Honour described this principle as significant if not fundamental to the system of criminal law. She recognised however, the statutory inroads made by s 128 of the Evidence Act. Further, she stated that it was important in the administration of justice that the position was not reached where Mr Standen could not receive a fair trial. 259The trial judge also noted the danger to Mr Standen arising from the fact that derivative use may be made of his answers. 260In the circumstances the trial judge concluded that it was not in the interests of justice to require Mr Standen to answer questions directed to the charges against him. 261Her Honour dealt with the subsequent application for adjournment briefly stating that having regard to the findings she made in relation to the s 128 application, the evidence was not so important that it would not be in the interests of justice to require the trial to continue.

[31]

The legislative background 262Section 128 of the Act as it stood at the time provided as follows: "128(1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness: (a) has committed an offence against or arising under an Australian law or a law of a foreign country, or (b) is liable to a civil penalty. (2) The court must determine whether or not there are reasonable grounds for the objection. (3) If the court determines that there are reasonable grounds for the objection, the court is to inform the witness: (a) that the witness need not give the evidence unless required by the court to do so under subsection (4), and (b) that the court will give a certificate under this section if: (i) the witness willingly gives the evidence without being required to do so under subsection (4), or (ii) the witness gives the evidence after being required to do so under subsection (4), and (c) of the effect of such a certificate. (4) The court may require the witness to give the evidence if the court is satisfied that: (a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and (b) the interests of justice require that the witness give the evidence. (5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence. (6) The court is also to cause a witness to be given a certificate under this section if: (a) the objection has been overruled, and (b) after the evidence has been given, the court finds that there were reasonable grounds for the objection. (7) In any proceeding in a NSW court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence: (a) evidence given by a person in respect of which a certificate under this section has been given, and (b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence, cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence. Note. This subsection differs from section 128 (7) of the Commonwealth Act. The Commonwealth provision refers to an 'Australian Court' instead of a 'NSW court'. (8) Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned. (9) If a defendant in a criminal proceeding for an offence is given a certificate under this section, subsection (7) does not apply in a proceeding that is a retrial of the defendant for the same offence or a trial of the defendant for an offence arising out of the same facts that gave rise to that offence. (10) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant: (a) did an act the doing of which is a fact in issue, or (b) had a state of mind the existence of which is a fact in issue. (11) A reference in this section to doing an act includes a reference to failing to act."

[32]

(a) The appellant's submissions 263The appellant submitted the trial judge was in error in concluding that the evidence the subject of the proposed cross-examination may have tended to prove that Mr Standen had committed an offence against or under the law of a foreign country. He relied in particular on what was said by Lindenmayer J in Marriage of Atkinson (1997) 136 FLR 347 at 376-377, that the witness must specify the particular law or at least the class of laws under which such an offence arises. 264The appellant submitted that no such attempt was made as there was no identification of any particular foreign provision upon which Mr Standen relied. The appellant accepted that Mr Standen did not have to prove that it would be likely that he would be convicted of a particular foreign offence, but submitted he had to demonstrate there was a possible offence with which he could have been charged, proving this matter either by expert evidence or use of provisions such as ss 174 and 175 of the Evidence Act. 265The appellant pointed out that mere accession to a convention does not mean that its contents have been incorporated into domestic law. He also submitted that the Convention did not require signatories to criminalise conduct across borders or require the exercise of jurisdiction when the conduct is alleged to have occurred abroad, where the ultimate supply took place abroad and the appellant was not present in the jurisdiction. 266So far as the printout from the Ministry of Justice website was concerned, the appellant submitted that it was not admissible and did not demonstrate that the conduct of Mr Standen constituted a breach of Dutch law. He also submitted that the presumption that, absent evidence, foreign law would be taken to be the same as the domestic law, was difficult to apply in the case of civil law countries. 267On this basis the appellant submitted the trial judge erred in concluding that the evidence which may have been given by Mr Standen may have tended to prove he committed an offence under the law of a foreign country. 268The appellant also contended the trial judge erred in not concluding that the interests of justice required the evidence be given. He submitted that the legislature had abrogated the right against self-incrimination and had struck a fresh balance which was required to be implemented by the courts. He submitted by taking into account the importance of the privilege in determining where the interests of justice lay, the trial judge had robbed s 128 of its purpose and power. In particular, the appellant submitted that the trial judge erred in concluding that derivative use could be made of the material having regard to the provisions of s 128(7) of the Evidence Act. 269The appellant submitted the interests of justice required the evidence be given as the credit of Mr Standen was a central plank in the argument that the evidence the subject of the voir dire should not have been admitted. 270At the hearing, senior counsel for the appellant conceded that r 4 of the Criminal Appeal Rules applied having regard to the failure to take objection to the evidence. He submitted, however, that even if there was material which suggested the existence of a foreign offence, the cross-examination could have been tailored to deal with this problem. However, as I indicated, senior counsel for the appellant also conceded that it was not contended at the trial that Mr Standen would not be liable to prosecution under foreign law in respect of the matters the subject of the proposed cross-examination. 271Senior counsel for the appellant also submitted that regardless of the admission of the evidence it was not capable of establishing a foreign offence, although as I have indicated that was not in issue on the voir dire. He also acknowledged that there was no suggestion that Mr Standen was involved in the importation of drugs the subject of the present proceedings and the most that could be put to him was he would do anything to achieve the appropriate outcome regardless of the legal position and also that he did not care if the drugs were harmful. He subsequently stated it would show the general attitude of Mr Standen to compliance with the law. 272So far as the question of an adjournment was concerned, the appellant submitted that any detriment to Mr Standen could have been cured by an adjournment. He submitted that absent the cross-examination, the trial judge could not properly determine the credibility of Mr Standen and there was every reason to conclude that the appellant would have been better off if the trial had been adjourned. 273In supplementary submissions filed after the conviction of Mr Standen the appellant pointed to evidence which was only relevant to the credibility of Mr Standen would have been admissible in the present case. The appellant submitted that this evidence would indicate that Mr Standen had been disbelieved by a jury and that he had been convicted of drug and perversion of justice offences.

[33]

(b) The Crown's submissions 274The Crown emphasised the conclusion of the trial judge that the evidence suggestive of criminal behaviour by Mr Standen was not of great significance in the matter for determination on the voir dire and that the source material on which the cross-examination would be based was in fact tendered. 275The Crown submitted there were no authorities supporting the proposition of Lindenmayer J in the Marriage of Atkinson supra, that it was necessary to specify the law or class of law in respect of which the evidence might tend to prove a contravention. However, the Crown accepted that there must be some indication of the relevant threat of self incrimination. The Crown submitted that all that was required was that there were reasonable grounds for a finding that the evidence may tend to prove that a person had committed a particular offence. 276The Crown referred to the statement of Heydon JA (as his Honour then was) in Damberg v Damberg (2001) 52 NSWLR 492 at 505 to the effect that it is well established, subject to numerous exceptions, that where foreign law is not proved it will be presumed to be the same as the lex fori. He submitted the failure of the appellant to object to the material tendered entitled the judge to proceed on the basis that there was no complaint about the acceptance of Mr Standen's case that the material constituted reasonable grounds for concluding that the evidence would tend to prove that Mr Standen had committed an offence against a foreign law. 277The Crown referred to authority which recognised consistently with the opinion of the trial judge that notwithstanding the provisions of s 128(7), the section offered only limited protection: Ross v Internet Wines Pty Ltd [2004] NSWCA 195; (2004) 60 NSWLR 436; R v Lodhi [2006] NSWSC 638; (2006) 199 FLR 328. 278Senior counsel for the Crown contended at the hearing that the summary of facts tendered on the voir dire related to overseas matters on which the trial judge could rely in concluding that Mr Standen was at risk of being charged with offences overseas. 279In considering the importance of the evidence senior counsel for the Crown emphasised that to a very large extent the evidence of Mr Standen was corroborated by that of Mr Bradley. 280Senior counsel for the Crown submitted that had the adequacy of the evidentiary material been raised, it would have been open to Mr Standen to obtain evidence of the relevant foreign law. However, having regard to the way that the case was conducted by the appellant it was unnecessary for him to do so. 281So far as Ground 7 was concerned, the Crown submitted that the decision to grant or refuse an adjournment was discretionary. The Crown submitted that having regard to the material which went into evidence it would be impossible to conclude that the appellant would have been in a better position if the cross-examination had taken place. The Crown pointed to the fact that there was ample material affecting the credibility of Mr Standen before the trial judge. 282The Crown also pointed to the fact that in assessing the probative value of the evidence, regard would need to be had to the difficulty in assessing dishonesty at a particular point of time from events which occurred subsequent to that time: R v Robinson [1999] NSWCCA 186 at [48]-[49]. 283As with Ground 6 the Crown emphasised that the evidence of Mr Standen was by and large corroborated by that of Mr Bradley.

[34]

Ground 6 284It is convenient first to deal with the question of whether the trial judge erred in determining that the interests of justice did not require the evidence to be given. 285A number of matters should be noted at the outset. First, the onus was on the appellant to establish that the interests of justice required the evidence to be given. That, in my opinion, is the effect of s 142 of the Evidence Act: see S Odgers, Uniform Evidence Law, 10th ed (2012) at [1.3.13060]. 286Second, the requisite standard provided for in s 128(4)(b) of the Evidence Act is that the interests of justice require admission of the evidence. It is not enough that the evidence be relevant and in this case satisfy the exception to the credibility rule in s 103 of the Evidence Act. This relatively high standard of satisfaction is consistent with the fact that the legislation to a significant extent abrogates a basic common law right. 287Third, as a corollary to the second proposition, the trial judge who has the conduct of the trial is in a considerable position of advantage in dealing with whether the interests of justice require the admission of the evidence. That does not mean a decision is incapable of appellate review, but in considering whether to review a decision, regard must be had to the position of the trial judge who is familiar with the nuances of the trial. 288Fourth, it was not contended in this case that s 128 as a matter of construction precluded cross-examination of a witness in respect of pending charges. Thus the issues of construction which divided the members of the High Court in X7 v Australian Crime Commission [2013] HCA 29; (2013) 87 ALJR 858 and Lee v New South Wales Crime Commission [2013] HCA 39 do not arise in the present case. 289The application to cross-examine on the material the subject of the charges was made at the conclusion of a lengthy cross-examination of Mr Standen in which a significant attack on his credibility was mounted: see par [232] above. It could not be said in those circumstances that her Honour was in error in concluding that an additional attack on Mr Standen's credit based on material which was in fact before her would not be of real significance such as to require the answers to be given in the interests of justice. 290As the trial judge pointed out in dealing with Mr Standen's credibility, she had the facts and a deal of evidentiary material relating to the charges before her as well as a record of interview in which Mr Standen attempted to explain the material put against him. Her Honour was entitled to doubt whether in these circumstances additional cross-examination would significantly alter the position. 291Further, it must be remembered that the proposed cross-examination was not designed to demonstrate the involvement of Mr Standen in the offences the subject of the charges brought against the appellant; the most it could go to was to support the proposition that Mr Standen would do everything to achieve what he regarded as the appropriate outcome regardless of the legal position, his lack of concern as to whether the drugs were harmful and the general attitude of Mr Standen to compliance with the law. These were matters on which there had already been substantial cross-examination. 292Nor do I think that the trial judge erred in taking into account the position of Mr Standen. In my opinion, the trial judge did not misconstrue s 128(7) and conclude that it did not provide protection against derivative use. She was simply noting the proposition accepted in other cases that the provision of derivative use immunity does not provide complete protection: R v Lodhi supra at [55]; Ross v Internet Wines Pty Ltd supra at [99]. 293In the present case the appellant sought leave generally to cross-examine Mr Standen in respect of the charges brought against him. The effect of such cross-examination, even with derivative use immunity, was summarised by Hayne and Bell JJ, with whom Kiefel J agreed, in their joint judgment in X7 supra in the following terms: "[124] Even if the answers given at a compulsory examination are kept secret, and therefore cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers, after being charged, would fundamentally alter the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial (and adversarial) trial in the courtroom. No longer could the accused person decide the course which he or she should adopt at trial, in answer to the charge, according only to the strength of the prosecution's case as revealed by the material provided by the prosecution before trial, or to the strength of the evidence led by the prosecution at the trial. The accused person would have to decide the course to be followed in light of that material and in light of any self-incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid. That is, the accused person would have to decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to what answers he or she had given at the examination. The accused person is thus prejudiced in his or her defence of the charge that has been laid by being required to answer questions about the subject matter of the pending charge." 294It should be noted that in Lee v New South Wales Crime Commission supra at [54], one member of the majority, French CJ, expressly agreed with these remarks. 295It is true that the trial judge may have been able to control the cross-examination to limit any unfairness which may have arisen: Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 at 498-499; Lee v New South Wales Crime Commission supra at [140]. However, the trial judge was entitled to take account of the position of Mr Standen in the manner she did along with the other matters she referred to in determining whether the interests of justice required the evidence to be given. 296It follows in my opinion that the trial judge did not err in finding that the interests of justice did not require Mr Standen to give the evidence. 297In these circumstances it is strictly unnecessary to deal with the question of whether the trial judge was correct in declining to permit the cross-examination on the basis that it tended to prove Mr Standen committed an offence against the law of a foreign country. Nevertheless it is appropriate that I do so. 298I have already pointed to the fact that senior counsel for the appellant acknowledged that no objection was taken to the evidence. In these circumstances r 4 of the Criminal Appeal Rules applies to this ground of appeal so far as it relates to the admission of the evidence said to support the proposition that the cross-examination may tend to prove an offence under foreign law. Having regard to my conclusion that the interests of justice did not require that the evidence be admitted, no miscarriage of justice has been demonstrated. It follows that this ground of appeal would fail to the extent it relied on the wrongful admission of evidence. 299However, the appellant submitted that the evidence so admitted did not provide any foundation for the claim that the cross-examination would tend to prove a contravention of foreign law by Mr Standen. 300To the extent that the trial judge did not deal with this point, there is really no basis for criticism. As the trial judge pointed out (see par [250] above) and as the appellant concedes, it was not in issue before her. Indeed, no submission whatsoever was made by senior counsel for the appellant at the trial on this issue. 301In these circumstances there is a real question as to whether this point should be permitted to be taken or whether the appellant should be bound by the course taken at the trial: see, for example, Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at [9]. At the very least the approach taken by her Honour should be considered in light of this fact. 302I have set out the approach taken by the trial judge above at pars [249]-[252]. The approach her Honour effectively adopted was that while she was not prepared to assume there was an offence of conspiracy under Dutch law similar to the common law (see par [251] above), she was prepared to presume that the Dutch law criminalising the importation and export of narcotic substances was similar to Australian law and that Mr Standen as a participant would be liable for breach of that law. 303In adopting that approach the trial judge was applying the well-known presumption that absent evidence to the contrary, foreign law is presumed to be the same as the law in this country. As set out above, in Damberg v Damberg supra at [119], Heydon JA, with whom the other members of the Court agreed, described the proposition as well supported. However, he then cited numerous exceptions throughout jurisdictions in the common law world. He stated at [144] by reference to The Parchim (1918) AC 157 that one circumstance where the presumption was applied was when it was assumed to be reasonable to apply English law because it was unlikely to differ greatly from the foreign law. In the result in Damberg, the Court declined to presume that the law of Germany relating to the taxation of capital gains was the same as that of Australia. 304The presumption can apply in relation to the law of non-common law countries. In Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331, a question arose as to whether a Chinese court would exercise its discretion under Article 146 of the General Principles of Civil Law of the People's Republic of China in the same way as it would be exercised by a court of this country. Article 146 permitted a Chinese court in a dispute between foreign nationals of the same country to apply the law of that country to resolve the dispute. The majority was prepared to apply the presumption: Gummow and Hayne JJ at [125], Callinan J at [249], Heydon J at [267], although Gleeson CJ who agreed in the outcome and McHugh and Kirby JJ who dissented, were not prepared to do so. Gummow and Hayne JJ explained the presumption in the following terms: "[125] If there is thought to be some deficiency in the evidence, the 'presumption' that foreign law is the same as the law of the forum comes into play. That would then require an Australian court to approach the task of construing Art 146 as it would approach the construction of an Australian statute. Neither the absence of pleading the relevant content of foreign law nor the absence of proof would be fatal to the case of the party relying on the relevant provision of foreign law. If the presumption was applied it would follow that the relevant power or discretion would be exercised, as it would by an Australian court under an Australian statute, having regard to its scope and the objects for which it was conferred."(Citations omitted) Whilst Callinan J dealt with the issue as follows: "[249] In those circumstances, the absence of relevant evidence of the Chinese approach to the construction and application of Art 146, it is right in my opinion to presume that the Chinese principles of statutory construction are the same as the Australian ones and to use the latter. This is consistent with authority in which English law has been applied to resolve questions involving a foreign law in the absence of any, or sufficient evidence of that law, which otherwise is in the usual case, to be pleaded and proved as a fact. In Jabbour v Custodian of Israeli Absentee Property, Pearson J, who was confronted with an unassisted need to construe some Israeli statutes, said this: 'I did not feel entitled or qualified to look through volumes of Palestine or Israeli ordinances or statutes or law reports as they were not in evidence and I would not know which of the ordinances or statutes were still in force or which of the reported decisions were still good law at any material time. It must be assumed that the Israeli rules of construction are the same as the English rules of construction.'" (Citations omitted) Heydon J at [267] agreed with each of Gummow and Hayne JJ and Callinan J. 305There is also some uncertainty about which party can rely on the presumption. In BP Exploration Co (Libya) Ltd v Hunt [1980] 1 NSWLR 496 at 503, Hunt J stated that the application of the presumption was to operate against, not in favour of, the party whose obligation it was to prove the foreign law. This statement was cited with approval in Nygh's Conflict of Laws in Australia, 8th ed (2010) at [17.41]. By contrast, Dicey, Morris and Collins on the Conflict of Laws, 15th ed (2012) at [9-025] stated the presumption in the following terms: "The burden of proving foreign law lies on the party who bases his claim or defence on it. If that party adduces no evidence, or insufficient evidence, of the foreign law, the court applies English law. This principle is sometimes expressed in the form that foreign law is presumed to be the same as English law until the contrary is proved."(Citations omitted) 306The learned authors, after referring to Damberg v Damberg supra and Neilson supra, state that courts have not yet offered precise guidelines as to when application of the presumption would not be appropriate. 307None of these issues were debated before the trial judge. However, having regard to the material tendered and the absence of any submissions to the contrary, she was entitled in my opinion to assume that Australian law was unlikely to differ greatly from foreign law in this area and to apply the presumption. Both the Netherlands and Australia were signatories to the Convention and the material concerning Dutch law that was tendered without objection showed that the import and export of narcotic substances was criminalised in that country. 308I do not think that the decision of the Full Court of the Family Court in Marriage of Atkinson supra affects the position. The case was an unusual one. The husband had filed certain evidence in relation to his financial position. He declined to answer questions in cross-examination on the ground it might tend to prove offences committed by him against the law of Vanuatu. The trial judge declined to allow the questions to be put but then proceeded to refuse to permit the husband to tender any evidence concerning his financial affairs. The appeal was allowed. Lindenmayer J at 376-377 concluded that as the evidence did not specify the particular law or class of laws in respect of which an offence might be proved, the husband should not have been permitted to decline to answer the questions and thus the whole of his evidence should have been admitted. 309However, the other members of the bench did not adopt the same approach. Baker J at 349 disagreed with Lindenmayer J on the effect of s 128, holding that the judge was correct in finding that the husband was not required to give the evidence. He went on to decide that the trial judge in those circumstances was in error in refusing to permit the husband to lead any evidence as to his financial affairs. The third judge, Smithers J, simply held that irrespective of whether the questions should have been permitted or not, the judge was in error in not permitting the other evidence to be given. 310It is unnecessary to decide if Lindenmayer J was correct. This is because, in my opinion, the class of foreign law to which Mr Standen was liable was adequately identified, namely, participation in the importation and export of drugs. 311The appellant submitted that cross-examination could have been tailored to avoid any potential exposure to foreign law offences. This was not expressly raised in the grounds of appeal or for that matter in the Court below. To the contrary, senior counsel then appearing for the appellant expressly disclaimed such an approach (T466). In these circumstances, this point should not be permitted to be raised in this appeal. 312It follows that Ground 6 has not been made out.

[35]

Ground 7 313The decision of whether or not to grant an adjournment is discretionary in the sense that it could only be overturned if an error in the sense described in House v The King supra is demonstrated: R v Alexandroaia (1945) 81 A Crim R 286 at 290; R v MAK [2005] NSWCCA 98 at [13]. 314The only error identified is that the trial judge failed to conclude that the appellant might be in a better position if his trial was adjourned until the conclusion of the trial of Mr Standen: R v Collisson [2003] NSWCCA 212; (2003) 139 A Crim R 389 at [34]. 315In my opinion there was no error in the exercise of discretion. Having correctly concluded that the interests of justice did not require the evidence to be given on grounds including that it would not be of great significance to her determination on the voir dire, it does not seem to me to be an error of discretion by the trial judge to permit a trial in respect of an alleged offence which had been committed 4½ years previously to continue. 316Quite apart from the significance of the evidence, there was no basis to assess if the appellant's prospects would be improved if a continuation of the trial awaited the trial of Mr Standen. Mr Standen may or may not have given evidence at the trial, the evidence may or may not have assisted the appellant and the jury may or may not have found him guilty. Any benefit to the appellant in these circumstances was entirely speculative. 317Further, whether Mr Standen was convicted or acquitted of the charges, the problem of potential foreign offences would remain. Mr Standen may well have been entitled to refuse to answer questions on the grounds that they tended to prove offences against foreign law. 318It follows that there was no error of discretion in declining to grant the adjournment. This ground of appeal has not been made out.

[36]

Ground 8 319This ground of appeal was as follows: "8) The appellant (applicant) has a justifiable sense of grievance in light of the sentence imposed upon the offender, Mr. Pavan, and a different less severe sentence is warranted and ought to have been imposed." 320The appellant was sentenced to a total term of 15 years' imprisonment with a non-parole period of 10 years' imprisonment. 321Mr Robert Pavan who was involved in the same syndicate pleaded guilty to one count of knowingly taking part in the supply of a large commercial quantity of cocaine, the quantity being 3 kilograms. The charge particularised three separate supply offences. Mr Pavan was sentenced to a total term of 12 years with a non-parole period of 7½ years. His sentence included a discount of 20% for the utilitarian value of his plea.

[37]

The remarks on sentence 322The trial judge noted that the offences were very serious, stating that they involved substantial quantities of cocaine. Her Honour stated that whilst the quantity of cocaine the subject of each count was significantly above the lower limit necessary to constitute the offence (two times in respect of Count 1 and three times in respect of Count 2), the quantities were not such as to aggravate the objective seriousness of the offences. She accepted the drugs were relatively pure. 323The trial judge stated that the appellant played an important role in the syndicate at an intermediate level in the supply chain. She stated that he had a greater organisational role than a mere wholesaler. She accepted, however, that he was not the principal of the syndicate. 324Ultimately the trial judge concluded that each of the offences were in the middle range in terms of objective seriousness but towards the bottom of that range. 325The trial judge accepted that the appellant made significant concessions and admissions in the conduct of the trial which had significant utilitarian value. She noted that from the outset the appellant conceded that the charge could easily be proved if his challenge to the admissibility of evidence failed. She described the challenge as "not merely speculative or nonsensical". 326The trial judge noted that the whole trial was completed in three days which she described as having significant utilitarian value. She stated that if strict proof was required the trial would have taken at least two weeks or considerably longer. She accepted the sentence should be discounted to reflect the utilitarian value that arose because of the conduct of the accused at the trial. 327So far as the appellant's subjective circumstances were concerned, the trial judge noted that whilst he could not be called a person of good character, nonetheless in both his life before he committed these offences and more so since, he had demonstrated some significant positive attributes. 328She accepted from the history given by the appellant to a Dr Lennings that the appellant commenced using drugs following the death of his sister in 1999, that he overcame that to an extent for a period of time but resumed his association with drugs following a boating accident caused by his negligence in which his fiancé's brother was seriously injured. Her Honour accepted, however, that he committed the offences for monetary gain. 329The trial judge accepted that the appellant had ongoing support from his fiancé and his family. She stated in these circumstances that he had demonstrated excellent prospects of rehabilitation. 330Her Honour accepted that the principles of parity were relevant and stated that the sentence which bore the greatest similarity in terms of criminality and subjective circumstances was that imposed on Mr Pavan. Her Honour made the following comments: "His role, as I understand it from the sentence imposed by Judge Berman in this Court, was quite similar to that of this offender, in that he identified purchasers and facilitated the supply of the cocaine sourced from Hatfield. He was present and supervised the supply and he was engaged in it for financial gain. The offence was found to be in the middle of the range in terms of objective seriousness. He was somewhat older than this offender, but equally had a minor criminal record and was a drug user. He was found to have good prospects of rehabilitation and to be unlikely to re-offend. Judge Berman on those findings declined to impose the standard non-parole period, but as I understand it purely on the ground of the utilitarian value of the plea which he assessed at twenty per cent. That as I calculate it must mean that his Honour used a starting point of about fifteen years for that offence and then discounted it in the circumstances. It seems to me that that is a sentence which is a matter that should be considered when assessing relativity or proportionality in relation to this offender and the appropriate sentence. It is the case that for Mr Pavan, he was facing sentence for one count only, whereas this offender is before the Court for two counts. In large part that does not play, in my view, a significant difference in comparing the two sentences, given that the facts in relation to Mr Pavan indicate that that three kilos was represented by three separate supply offences of one kilo each on three separate occasions dealt with as a rolled up charge. That could equally have been the case in relation to this offender. Of course it was not. The offender gains no credit or mitigation because of those decisions made by the prosecuting authorities." 331In these circumstances her Honour concluded that the appropriate sentence for Count 1 was a non-parole period of nine years with a parole period thereafter of five years, giving rise to an overall period of imprisonment of 14 years and for Count 2 a non-parole period of six years with a parole period of three years, giving rise to an overall period of imprisonment of nine years. Her Honour stated that only a small amount of accumulation was necessary as in large part the two offences represented one episode of criminality, albeit two separate offences. Having regard to the period the appellant had spent in custody the judge directed the sentence for Count 1 should commence on 16 May 2009 and Count 2 on 16 May 2008.

[38]

The submissions of the parties 332The appellant submitted that the roles played by Mr Pavan and the appellant in the syndicate were identical, both acting as go-betweens between Mr Hatfield and other wholesalers. He submitted that the conduct of Mr Pavan was slightly more serious as the quantity of drugs was slightly greater and Mr Pavan had engaged in three rather than two discrete transactions. 333The appellant also submitted the subjective cases were largely identical, both men having only relatively minor prior convictions and good prospects of rehabilitation. 334The appellant submitted that the trial did not involve any factual contest about the appellant's conduct. He pointed to the fact that he sought to challenge the s 138 ruling made by the trial judge but that leave was refused. He pointed to the fact that he was obliged to maintain his plea of not guilty to preserve his right of appeal against the s 138 ruling. He submitted that his manner of conducting the trial facilitated the course of justice which should have been afforded considerable weight in the sentencing process. 335Counsel for the appellant submitted that although it would have been of little utility, it would still have been open to the appellant to put the Crown to strict proof on all issues. He pointed out that Mr Pavan obtained a discount on sentence even though his plea was not forthcoming at the first opportunity. 336The Crown submitted that in sentencing, the trial judge paid particular regard to the sentence imposed on Mr Pavan. It was submitted that her Honour was correct in stating that the appellant gained no credit or mitigation because of decisions made by the prosecuting authorities to impose different charges. The Crown submitted that having taken the sentence of Mr Pavan into account, there was no error in the exercise of her sentencing discretion in imposing a different sentence. 337The Crown submitted that the reduction from the standard non-parole period of 15 years to a parole period of 10 years adequately provided for any discount arising out of the saving of time at the trial.

[39]

Consideration 338It is plain that the trial judge took into account the parity principle and the level of co-operation by the appellant and his representatives in the conduct of the trial. The question is whether these matters were adequately taken into account having regard to the sentence imposed on Mr Pavan. 339There are two differences of significance which must be borne in mind. First, Mr Pavan entered a plea of guilty. It is not entirely clear from the judgment of Berman SC DCJ when the plea was entered into but it would appear to have been after the decision in Dowe (No 2). More importantly he did not contest any aspect of the proceedings at least after arraignment. 340By contrast the appellant contested the admissibility of the evidence in a voir dire extending over some 18 days and as a result of his plea in a trial occupying three days. He was fully entitled to take that course and as the trial judge said, his co-operation significantly reduced the length and complexity of the trial. That being said the utilitarian value of his conduct was significantly less than that of Mr Pavan. 341Further, the appellant unlike Mr Pavan, was sentenced for two offences which the trial judge partly accumulated. It has been held consistently in this Court that the parity principle does not extend to correcting any imbalances in the manner in which offenders were charged: R v Formosa [2005] NSWCCA 363 at [44], [54]; Pham v The Queen [2009] NSWCCA 25; (2009); 193 A Crim R 190 at [36], [37]; Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [117], [247]; JOD v R [2009] NSWCCA 205. The appellant did not suggest these cases were wrongly decided. 342In Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, the majority expressed some reservation as to the scope of the principle laid down in these cases. At [30], their Honours made the following comments: "[30] In Lowe v The Queen and in Postiglione v the Queen, this Court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise. Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen, there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged."(Citations omitted) 343However, their Honours did not overrule what was said in those cases. The minority expressly stated that in this regard Jimmy supra was correctly decided: Green supra at [90], [91], [122]. Nonetheless, the Court should be mindful of the remarks of the majority just quoted. 344Having regard to the marked difference between the utilitarian value of the plea of guilty entered by Mr Pavan and the assistance provided by the appellant, and further, to the fact that the appellant was convicted of two charges instead of one in the case of Mr Pavan, the appellant was not entitled to have a legitimate sense of grievance in the objective sense referred to in the authorities: see Green supra at [31]. My conclusion would be the same regardless of whether the approach of the majority in Green supra was applied or the matter was approached by the application of the principles in Jimmy supra and the other cases to which I have referred. 345It follows that this ground has not been made out.

[40]

Conclusion 346In the result I would make the following orders: (1)Appeal against conviction dismissed. (2)Grant leave to appeal against sentence but dismiss the appeal. 347BEAZLEY P: I agree with the reasons and with the orders proposed by Bathurst CJ. 348HOEBEN CJ at CL: I agree with Bathurst CJ. 349BLANCH J: I agree for the reasons given by the Chief Justice that both the appeal against conviction and the appeal against sentence should be dismissed. 350PRICE J: I agree with the judgment of the Chief Justice that both the conviction appeal and the sentence appeal be dismissed.

[41]

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 November 2013

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (41 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (80)