Gedeon v Crime Commission of NSW

2 As an interlocutory judgement it will be necessary for me to make conclusions in the absence of some submissions by other parties. Where findings I make herein effect other cases, or other issues within this case, my views are not final, and are subject to hearing submissions from the defence and prosecution in relation to those findings. It will also be necessary to make a preliminary determination to matters which may or may not be relevant questions should Mr Bradley be called. Naturally, that does not preclude the Prosecution objecting to such questions on any grounds following which I will deal with those objections afresh.

3 Further, this judgement is written without the benefit of transcript and under time pressure due to the number of other matters awaiting this determination, and of course the bail refused status of a number of the defendants including Mr Gedeon.

4 Not in contention is that a person known by the pseudonym "Tom" became an informant to the NSW Crime Commission (NSWCC) in December 2004. A joint task force of NSW Police, Federal Police and the Crime Commission was tasked to utilise Tom and investigate the importation of Cocaine. As part of this role, a plan was devised for Tom to provide to the task force 7kg of cocaine he had left from a previous importation. This plan was discussed at a meeting of the NSW Police Commissioner, Mr Bradley and Mr Standon Assistant Director (Operations) of the NSWCC among others on 2 February 2005. It was also decided that Tom would sell the cocaine in a manner that made it unlikely to be recovered and would be likely to reach street level.

5 Tom dug up the cocaine in the presence of the Task Force on the 7th of February 2005 and they took possession of it and had it analysed. On the 8th of February 2005 the cocaine was handed back to Tom, he repackaged it, added an additive to make it up to 1kg, and pressed it into 1kg lots. He gave it back to the Commission. Following that a Controlled Operations Authority was issued by Mr Bradley. Two kilograms of the cocaine was taken by a Federal Police officer to Five Dock where it was supplied to Tom and onto the defendant Mr Gedeon.

6 Mr Standen has already given lengthy evidence in the committal hearing. It is apparent that significant activity occurred relating to the supply of the drugs which took place outside of the time frame of the Authority. It is apparent that significant activity relating to the supply of the drugs took place by personnel arguably not covered by the Authority, including by Federal Police and others. It has been suggested that the "flavour" of the investigation was Commonwealth and not State, and thus a Commonwealth Control Authority ought to have been obtained. The Federal Police decided not to participate due to the supply of cocaine in circumstances where it may not be recovered. Each of these has been foreshadowed by the defence as a ground for a future submission, either in this court or at trial, that the evidence was illegally or improperly obtained.

7 Further the defence contend that the Authority, the Application and the Control Plan were obtained or issued by way of misfeasance, and it is necessary to traverse this issue in some detail. It is clear that Mr Standen and Mr Bradley knew that it was most likely that the 7kg in general and in particular the 2kg that was sold to Mr Gedeon would end up on the street. That was because it was necessary to keep Tom "unburnt" so that he could continue to assist the authorities with the proposed importation. Yet nowhere in the Application for Authority or the Control Plan by Mr Standen was there any mention of this knowledge. Nor was there any mention of this in the report by Mr Bradley to the Ombudsman.

8 When Mr Standon answered a question as to why there was no mention of this in the Plan or the Application he said, that it was because Mr Bradley already knew it. This was because Mr Bradley was a participant in the decision making process from start to finish that lead to Tom supplying the 7kg of Cocaine in general, and the 2kg in particular.

9 I digress to add that it is at the very least surprising that this most controversial aspect was not documented in the Application or Control Plan. I shall return to this below.

15M On what grounds may a certificate authorising a controlled operation be given? 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: (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 11 The Law Enforcement (Controlled Operations) Act 1997 (NSW) provides: 7 Certain matters not to be authorised (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.

12 Despite this section, both the Application by Mr Standen at Paragraph 13, and the Authority itself, at Paragraph 5(b), express satisfaction that

"no participant in the operation will engage in conduct that is likely to seriously endanger the health or safety of that or any other participant, or any other person, or result in serious loss or damage to property"

13 On the face of it this is most troubling. How, one might ask, can these senior crime investigators come to the conclusion that the supply of 7kg of Cocaine in circumstances where is it is likely that that cocaine will end up in the hands of users on the street, does not seriously endanger the health of those users?

14 Mr Standen was clear that in his view, the potential harm needed to be balanced by the potential gains by investigating the importation of a greater amount. Essentially, this is that the means justify the ends. He gave at least four reasons why he concluded that the supply was not likely to seriously endanger the health of any person. s because cocaine overdose does not cause death,

s there was no additional harm because the users would be able to get their cocaine elsewhere given the prevailing conditions at the time,

s the statute only covered participants and did not include harm to the public, and

s the purity of the this cocaine would mean less risk for the community.

15 At this stage, and of course I have not heard from the learned Crown as to how I ought assess this evidence, one conclusion that can be reached is that these reasons are not cogent or genuine.

16 As to the first explanation, that cocaine does not cause death, Mr Standen stated that he had a Superintendent undertake the research which satisfied him as to this fact. Firstly, death is hardly relevant to serious harm. Serious harm in this context is no term of art, but clearly means something less than death. Secondly, it is difficult to accept that someone who has been involved in drug law enforcement for all of his working life could genuinely conclude that cocaine is such a benign substance.

17 That the purchaser on the street could have replaced these drugs with other drugs is possibly true as far as it goes. However, any reading of the legislation shows that the issue is whether this cocaine would be likely to cause serious harm, not any other cocaine. Should that logic be applied to all controlled operations then s7 would simply have no effect.

18 As to the third explanation, that the statute covered only participants, in my view as a question of law and of statutory interpretation that it is incorrect. Counsel for the NSWCC in an interchange on a different subpoena issue conceded as much. Such an interpretation is in my view not reasonable or believable, as it would make s7 inoperative. The second reading speech confirms this:

"Clause 7 expressly prohibits the approval of a controlled operation if there is likely to be any undue risk to the operatives involved or to any other person. Clause 7 also prevents approval of operations in which there is a risk of serious damage to the property of others. It is not appropriate to authorise controlled operations when there is a high risk of liability for damages".

19 As to the fourth explanation - why would this cocaine not be diluted by the next level in the chain of supply as per other cocaine?

20 I should note in passing that in the course of the hearing there were many delays due to negotiations about the production of documents principally by the NSWCC. These centred on the production of documents related to the Application for and reasons for the controlled operation. It was put to me in the course of submissions on this issue by Mr Singleton instructed by the Crown Solicitor on behalf of the NSW Crime Commission that the proper construction of s7 in this context was that it referred to actual harm, rather than potential harm. To quote from my notes, "supply of itself does not lead to harm" within the meaning of the section, because it is "use that leads to harm". Accordingly, it was put, the certificate was properly granted, as there was no harm to any person per se. In the end I did not have to rule on this submission however there is ample authority from courts around the country about the evil of drug trafficking including cocaine as a "declaration of war against the community", R v Chung [1999] NSW CCA 330 and Attallah [2005] NSWCCA 277. In the latter case, a sentence of 24 years was imposed for an offence of much less quantity of cocaine than here.

21 Thus it is apparent that in my mind there is a real issue of potential misfeasance in the Application for the Authority by Mr Standon, and subsidiary issues relating to the legality of the preparatory acts outside the time frame of the Authority and by personnel not mentioned in the authority. One of several inferences that could be made from the conclusions above is that Mr Standen, and indeed others involved in this operation, saw Tom as an excellent and rare opportunity, that the means justified the ends, and that they were not going to be diverted from their task by a legislative barrier such as section 7, but no doubt the Crown will have something to say about that in due course. The point is that legality, and the explanations given thus far, are very much a live issue in the case.

22 All of this is an issue for committal because of the combined effects of Losurdo 1998 (A Crim R 162) at first instance and in the Court of Criminal Appeal at 103 A Crim R 189 and Dawson [1999] NSWSC 1147. It is clear from these authorities that it is part of the role and function of the committal court to permit cross examination and exploration of issues relating to illegality even thought this is not an issue that can be determined to finality at committal. This is because it allows ventilation that is likely to clarify issues for trial. Not as clear, but raised, is the contention that such issues may need to be addressed as part of the second limb in committal proceedings involving an assessment as to whether the evidence is certainly or likely to be excluded.

23 It is clear that such exploration and ventilation has its limits, and that there is a discretion that must be exercised to ensure that the examination of such evidence does not stray into the irrelevant or remote on issues of illegality. In most cases, this will occur in the prosecution case of course.

24 It is within this context that following the evidence of Mr Standen, discussion took place regarding the calling of Mr Bradley. Mr Gedeon's legal team stated that they wanted to cross-examine him as to his role in the matter, and in particular as to conversations he had with Standen that led to the supply of the cocaine to Mr Gedeon. The next day the Crown reported that Mr Bradley would not make a statement, and that thus they would not be calling him. The defence then stated that they would seek to call him in their case.

25 Strictly speaking, before Mr Bradley can be called certain formalities need to be attended to regarding the proceedings against Mr Gedeon so that the proceedings can move to the calling of defence witnesses, but the matter has proceeded on the assumption that such steps will be taken at an appropriate time.

26 The first exhibit in this matter is an affidavit of Mr John Giorfiutti who is the Solicitor to the NSWCC except for paragraphs 4 and 5, which were not pressed. On the 29th of March Mr Temby tendered two Certificates, the first attests that Mr Bradley was "aware that there was a likelihood that the cocaine proposed to be supplied" would not be recovered by the NSWCC or by any other law enforcement agency. The second restates that Mr Bradley was "satisfied" as to the health issue. It was conceded also that Mr Bradley knew that the cocaine would be handled as a preliminary to a proposed control operation.

27 The Certificates are relevant because of the impact of Section 27 of the Law Enforcement (Controlled Operations) Act 1997 (NSW) 27 Evidentiary certificates A certificate: (a) that is issued by the chief executive officer of a law enforcement agency, and (b) that states that, when granting or varying an authority, the chief executive officer was satisfied as to matters specified in the certificate, is admissible in any legal proceedings and is conclusive evidence that the chief executive officer was satisfied as to those matters.

The Onus 28 Subpoenas are in the usual course of events issued ex parte and when challenged the onus is on the person seeking a document or person to satisfy the court that they ought be produced or appear. Cognisant of that I will nevertheless deal with the submissions of the NSWCC first.

29 Mr Temby produced written submissions, which are most helpful. In essence they contend that the subpoena is an abuse of process and should be set aside as there is no evidence on which the Commissioner could give on a matter within the jurisdiction of this court.

30 It seems to me that Paragraph 1 is introductory and uncontroversial.

31 Paragraph 2 refers to the aim of s27 being so that CEO's need not be called in order to question if their satisfaction is believable.

32 Paragraph 3 is uncontroversial, however I wish to comment on the reference to R v Bains [1909] 1 KB 258. In this case the Prime Minister and Home Secretary were the subject of subpoena to attend. Clearly it was a political stunt by suffragettes. They could not give "any evidence which can possibly be relevant to any issue which may arise".

33 Paragraph 4 is not controversial, and I note the final portion concedes that "subpoena for a person to attend and testify will be legitimate if the subpoenaed person can give admissible (relevant) evidence: Bains".

35 Paragraph 13 raises the issue of disclosure. Some discussion occurred on this point and it was not resolved. In my view it is perfectly clear as to the issues that are to be traversed by the defence should Mr Bradley be called. To use the terminology of Saleam (1989) NSWLR 15 they are stated with "sufficient precision". There is no need for the defence to supply a list of questions as suggested by Mr Temby.

37 Paragraphs 16 to 21 are not controversial, although I note that in the case of Ladocki [2004] NSW CCA 336 DCJ Coolahan did precisely that - i.e. looked behind the reasons for the granting of an Authority, and found it to be unlawfully or improperly obtained on the basis that the code of conduct was not complied with. The CCA criticised the lower court as to "scant attention" being paid to various aspects of s138, but not that point in particular. Whilst I am not bound by the approach of Coolahan DCJ, it is indicative of the way the District Court may deal with the issue.

38 That may well be a "red herring" because after Mr Temby reached that point in his submissions, Mr Turnbull for Mr Gedeon indicated he agreed with Mr Temby's submissions thus far.

39 Nor does Mr Turnbull take issue that the Authority was issued irregularly, nor does he dispute that s27 of the LECO Act applies to an extent. (Paragraphs 21 and 22)

40 Paragraphs 24 to 27 deal with the issue of Commonwealth "flavour". The contention is that once the Authority is accepted as regularly issued, only the Supreme Court can consider whether it is invalid as a result of this issue. That was not disputed by the defence.

41 Paragraphs 28 to 30 deal with the issue as to whether the prior dealings with the drugs outside the time frame and personnel limitations of the Authority could impact on illegality. The contention is that "Any antecedent offences before the issuing of the authorities could not give rise to a discretion (under s138 or otherwise) to exclude evidence of Tom's supplies to Gedeon". I cannot agree with that blanket statement. If a court found that the supply of the cocaine to Tom by the Crime Commission was unlawful, that the packaging and admixture was unlawful as part of a "take part in a supply" type offence, then why could that not give rise to discretion on a "poison tree" type argument? In Mallah [2005] the evidence was found to have been improperly obtained prior to the Authority being issued. The evidence was in the end admitted after consideration of s138(2). The circumstances were somewhat different. But to suggest that it "could" not be a matter for discretionary determination in the District Court is not in my view correct. For this reason I do not agree with Paragraph 30 either.

42 Paragraphs 31 to 35 deal with the proper construction of Section 7 of the LECO and the "health" issue. It is clear from the authorities that Mr Bradley could not be asked questions as to why he signed the Authority or matters to which the Certificates apply. That much was conceded by the defence. However, that is not the only role Mr Bradley played in this matter as will be discussed below. Paragraph 35 contains a repeat of the contention discussed above - that supply itself is not likely to seriously endanger the health of any person. Fortunately, I agree that this is not the place to rule on that contention. I trust that my views are clear from my comments above.

43 Paragraphs 36 to 40 are now not relevant given the Certificates being exhibits 2 and 3.

44 Paragraph 41 puts the reports to the Ombudsman by Mr Bradley as an isolated issue. As I understand it, the issue raised is that in the Application, the Operation Plan, the Authority and the reports to the Ombudsman there is not any reference to the likely non-recovery of the cocaine.

45 In his oral submissions on both the 28th and 29th of March 2006, Mr Temby made the following additional points that appear not to have been raised in his written submissions: That the calling of evidence from Mr Bradley might be of interest, or "titillating"or embarrassing for Mr Bradley, but that is not sufficient for it to be relevant. That s27 is designed to stop CEO's being called, and in the absence of challenging the subpoena it might become "fashionable" to call him.

That this is really a fishing expedition to see what comes up.

An Authority is no different to a warrant (such as a listening device warrant) and thus the authorities prohibit any collateral attack on the reasons for the warrant. Defence Submissions 46 The defence agrees that the legality of the conduct of the investigating officers is the key issue upon which they wish to call Mr Bradley.

47 The defence point out that Mr Bradley has many different roles in this matter, utterly different to the type of role exercised when issuing an arms length warrant by a Judicial Officer or a Registrar. Mr Bradley was an integral part of the investigation, in terms of tactics, assessment and decision-making. This is clear from annexure "C" of exhibit one, and also the evidence of Mr Standen and to a lesser extent Tom. Mr Bradley also took evidence on oath from Tom in a quasi-judicial role. He was present and participating at the meeting of 2 February 2005 where it was decided that Tom would sell the cocaine and it was unlikely to be recovered. He either formulated or was kept informed of the strategy at all times.

48 The defence also state that "they do not want to ask anything about the certificates" and effectively thereby concede the issue relating to collateral attack.

49 Nevertheless, they do wish to ask questions about record keeping, about the research conducted by Mr Standen as to death from cocaine, as to whether he agrees with Mr Standen's opinions about the health effects of cocaine. Not, it is stressed, as the person who was signing the Authority or Certificates, or to attack the Authority itself, but to explore the level to which the contended illegality or impropriety reached, and the extent of that contended illegality or impropriety throughout the investigation team.

50 They wish to ask him about his specific knowledge of the handling of the cocaine prior to the sale to Mr Gedeon, and in particular whether he knew of the packaging into one-kilo lots.

51 The defence point out that one of the considerations at trial (or perhaps even on the second limb of committal) under s138(2) may be the hierarchical level to which the contended illegality has reached and any issues of oversight.

52 They wish to ask questions about the conclusion reached regarding the "health" issue, not to attack the certificate, but to ventilate and explore issues of potential impropriety or illegality in the investigation that led to that point. In the defence view the words "must not be granted" in s7 give rise to a legitimate cause for questioning as to whether the issue was considered within the investigation team with knowing disregard for the legislative provision.

53 The defence contend that Mr Bradley was in the best position to know what occurred, when it occurred and what records were kept with respect to the entire investigation, and that this is relevant independently of the Authority or the Certificates themselves.

54 They also point to the recent signing of the Certificates that are exhibit 2 and 3 as an example of the poor record keeping they particularly want to question Mr Bradley about. I imply from this that the subpoena previously issued on the Commission elicited very little by way of written material of assistance.

55 Finally, they content that this is not a fishing expedition, but a genuine attempt to call a very relevant witness who was an integral part of the investigation.

56 Mr Turnbull also raised issues regarding s13A and s3A of the LECO Act.

57 I approach the issue with some trepidation as these seem to be rather unchartered legal waters on many counts - the subpoena to be set aside relates to a person, he is sought to be called in the defence case, at a committal, in the context of an Authority under the LECO Act.

58 I should note that an important consideration is that these are serious criminal charges involving imprisonment terms of life and 25 years. In criminal cases a more liberal approach is taken to subpoena - Scott v Jones [2003] NSW SC 169. at 24. In Alister v The Queen (1984) 154 CLR at 451 Brennan J stated:

"The right of an accused person to compulsory process as of course to secure witnesses has been acknowledged for nearly three centuries. It is so basic and important an aspect of our criminal procedure that a trial in which the right is denied cannot be, in my opinion, a trial according to law….In a criminal case it is appropriate to adopt a more liberal approach to inspection of documents by the court. The more liberal approach is required to ensure that, in so far as it lies within the courts power, that the secrecy which is appropriate to some of the activities of government furnishes no incentive to misuse the processes of the criminal law".

59 In RTA v Connolly 57 NSWLR 310, Adams J fount that

"I consider that the identification of the legitimate forensic purpose together with the reasonable chance that the documents in question might support the defence, is sufficient to justify a subpoena seeking the documents"

60 The defence is pursuing a legitimate path of enquiry regarding a public officer who was a part of the investigation. This is not a fanciful or remote issue, nor is it a case where the illegality cannot be pointed to as in Ali Tastan 75 A Crim R 498. Indeed, the Commonwealth DPP agreed in a written agreement that Mr Standen may be cross-examined on issues relating to the legality of the operation. There were few if any objections on the grounds of relevance by the Crown in the days that Mr Standen was in the witness box being questioned on these very matters. It is beyond issue that these matters will be key matters at any eventual trial. The only witnesses called thus far, and to be called apart from possibly Mr Bradley are Tom and Mr Standen.

61 Also in consideration is that the subpoena has been issued so that a witness may be called in the defence case at a committal. That is most unusual. It is necessary in my view to tread very carefully before limiting the defendants right to call any witness at committal. Whilst I am not suggesting that any different rules apply relating to relevance and forensic purpose, that the defence are calling the witness requires a very careful consideration before setting aside a subpoena on the grounds of relevance. Further, that Mr Bradley is a public official is relevant, in that part of his job is to justify actions taken under his legislative powers.

62 In my view the defence have satisfied me that Mr Bradley is a relevant witness. Mr Bradley was clearly a major player in the investigation. The defence have said that they will not and do not seek to question Mr Bradley about the Authority and I agree with that. They want to question him about the investigation. I can see that that is relevant to ventilate the issue to a proper degree at the committal. They are not seeking to call a person remote from the investigation for some improper purpose such as the Police Commissioner or the Police Minister. Section 27 was clearly designed to stop CEO's being called to answer questions about their satisfaction as to matters in the Authority. Here, Mr Bradley had been doing far more than assessing an application and a control plan and making a decision. He was part of the investigative process. This is not a nuisance subpoena as in Bains - Mr Bradley was mentioned as part of the investigative process at each point. Further, this is not a case which would set any precedent making it "fashionable" to call CEO's for "titillation" or "embarrassment" to use Mr Temby's words. Mr Bradley's role extended beyond that, inevitably I imagine, in a small organisation where the CEO wears so many hats.

63 Mr Bradley could give relevant evidence as to precisely what he knew about the antecedent dealing with the cocaine. It may well be relevant in the District Court. It could get to the point in the District Court of consideration of s138(2) given the evidence thus far, making evidence as to how high in the hierarchy the knowledge went relevant. Certainly that is not in my view sufficiently remote or fanciful that Mr Bradleys evidence could be characterised as irrelevant. It is "on the cards".

64 Mr Bradley could give relevant evidence about the "health" issue. Not to attack the Authority or to challenge the "satisfaction" in the Certificates, but to see how such a view could possibly arrived at in the context of the process of decision-making and the investigation. After all, Tom did not want to wear a wire and sell the cocaine undercover initially. This was a position reached at the suggestion of the NSWCC with the active participation of the lead investigator - Mr Bradley. How that position was reached is relevant. Mr Standen has given much evidence as to these matters; it seems to me that just because at the end of the process Mr Bradley signed an Authority that does not mean that any evidence he could give is irrelevant because the Authority provides some sort of shield.

65 Mr Bradley is being called in the defence case at committal. His evidence is as relevant as Mr Standen's in terms of the investigation and all matters except those that the defence have agreed not to ask questions on.

66 I also see that it is relevant that Mr Bradly answer questions as to the record keeping. I do not know what documents have been viewed as a result of subpoenas of the Commission, but the absence of any written record as to the supplies ending up on the street is, to use a relatively neutral term, curious.

67 For completeness, I do not agree with the contention of the defence as to Sections 13A and 3A of the LECO Act. Section 13A is concerned with procedural defects not apparent here - certainly not involving section 7 matters. Section 3A is a mystery to me. Mr Temby found it puzzling. It does not improve with time. Suffice it to say that the words "subject to this Act" appear to refute the defence contentions.

68 In terms of the issue of the Authority itself I do no more than note the decision of Salem op cit. although it was not referred to on this aspect in detail in either submissions. I read it in detail as it was handed to me by either Mr Temby or Mr Turnbull. It may not be in issue given that the defence has indicated it will not ask questions on the Authority itself. In that case the court was dealing with s59 of the Police Regulations (Allegations of Misconduct) Act, which provided that any document brought into existence for the purposes of that Act is not admissible in evidence in any proceeding. It was argued by the prosecution that they were not accessible to the defence by way of subpoena. He found

"In my view, if the legislature had intended s59 to have such an extraordinary wide operation, it would have made such a provision expressly…..the circumstance that a document is inadmissible does not mean that a party to those proceedings may not have access to it for legitimate forensic purposes…Subject to a legitimate forensic purpose, a party is entitled to see documents produced on subpoena, not only to see whether they can themselves prove relevant facts, but also to see whether they disclose information which may be established in some other admissible form"

69 The subpoena is not set aside. I am satisfied that this is not a fishing expedition or a collateral attack on the validity of the Authority. Had Mr Bradley done nothing more than signed the Authority after considering the Application and Control Plan, my decision would have been different. But his role was far greater and more involved than that.

70 I expect Mr Bradley to appear at court at the earliest possible agreed time. I have somewhat hardened my position with respect to timing since the discussion yesterday. I will stand this matter down until 12 noon for the parties to consider their position. Subject to submissions to the contrary I expect Mr Bradley to be available for cross-examination at 10am tomorrow morning. The delays in this case caused almost entirely over arguments as to subpoenas on the Crime Commission or its officers have delayed this matter beyond the reasonable and I am most keen for the evidence to move to completion.

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