His Honour did not comment on the court's decision in that respect, but there was no occasion for him to do so.
81 There is thus support for the Crown's concession. However, there is contrary authority.
82 In Potter (1994) 72 A Crim R 108 the Crown tendered, at the request of the offender, a record of interview described as one in which the offender provided the law enforcement authorities with information of assistance to them in their investigation into the drug trade. At the outset of the interview the offender was told that his statement was made on the assurance that anything he said in it would not be used in evidence against him in any proceedings. When the record of interview was tendered the offender's counsel said, "That would complete the record of assistance in relation to fact". It was accepted that the tender was requested to assist in seeking a discount for assistance to the authorities.
83 Carruthers J, with whom Clarke JA and Wood J (as Wood CJ at CL then was) agreed, said (at 116) -
"There appears to be little doubt that Judge Phelan relied upon this record of interview when assessing the value of information which the respondent had provided. The troubling aspect is, however, that the document contains statements by the respondent (which Judge Phelan did not take into account) which greatly enhance the extent of his criminal involvement in the subject offences. This material completely undermines any suggestion that his role was nothing more than that of a 'minder' or a 'patsy'.
At the hearing of the appeal, Mr Nicholson QC for the respondent submitted that this Court should not take this material into consideration in determining the degree of the respondent's criminality because it had been tendered before Judge Phelan upon a restricted basis, ie as going only to the degree of assistance to authorities. In my view the true legal position is that when this document was tendered before Judge Phelan it became evidence in the case for all purposes. The undertaking which Detective Mulqueeney had given to the respondent was, in my view, waived when the document was tendered at the request of the respondent's counsel. Thus to the extent that there may be any practice that documents of this nature are received purely on restricted grounds, such practice should cease. However this Court has concluded that as the document was received by Judge Phelan on this restricted basis it would be unfair to the respondent that it be taken into account with regard to his criminality in the determination of this appeal."
84 So far as appears the Court's attention was not drawn to R v Raz; nor so far as appears in Meggett was the attention of Wood CJ at CL drawn to Potter.
85 Thus there are decisions of this Court supporting the Crown's concession and a decision of this Court apparently at odds with it. Before deciding whether the Crown's concession conforms with legal principle, however, it is convenient to go to the judge's reasons for disagreeing with the common submissions that he should not take into account the payment of $2,500.
86 After referring to the first paragraph in the applicant's statement embodying the promise about the use of the information in it, the judge said -
"The statement was headed "New South Wales Police'. Whether Mr O'Connor had authority to bind the Commonwealth Crown in prosecutions under federal law was not demonstrated. It seems to me that he would not have had such authority.
…
I find that on its proper construction paragraph 1 of the offender's statement does not extend to the present sentencing hearing and determination on the offender's plea of guilty to the subject charge. On its proper construction it relates to possible further prosecution proceedings for other possible offences. When the statement was made the offender had already indicated to the authorities that he intended to plead guilty on the current charge relating to 9 April 2000. His statement covers over 50 pages plus 42 further annexed pages relating to involvement in many other importations going back to 1998.
Properly construed paragraph 1 of the statement was intended to protect the offender against further prosecution in respect of other possible charges. It was not intended to protect him against unrestricted disclosure for sentencing purposes in the already contemplated sentencing hearing in respect of which he had already indicated an intention to plead guilty. The statement was based on the prior correctly held common assumption that the offender would adhere to his previously stated intention to plead guilty to the already pending charge.
When the statement was made both the Crown and Defence knew that the offender would be pleading guilty to the present single charge. They both knew and accepted that in consideration of the offender's promised plea to the current charge and his undertaking to assist the police in respect of their further inquiries covering a much wider involvement the offender would be indemnified in respect of further, but not the present, prosecution. That qualification was made expressly clear in the Commonwealth DPP's written undertaking of 20 August 2001 (Exhibit 'C'). It expressly stated that on condition that the offender gave the assistance therein referred to he would not be prosecuted for any acts or omissions 'in respect of the importations of heroin into Australia' particularised in his statement of 9 July 2001 during the period 1 January 1998 to 9 April 2000 'but not including those relating to the importation which is the subject of the charge presently pending against you'.
This case is therefore distinguishable from R v Raz to which both Miss Bashir and Mr Crown referred in support of their submissions that the $2,500 payment to be made to Bourchas could not be 'used against him' on sentence in the present prosecution.
There is another point which needs to be noticed. The offender having pleaded guilty it was the duty of both the Crown and the defence, in the interests of justice, to disclose to the Court all matters known by them relevant to sentence. Both knew that the offender had told police that it was usual for him to receive a payment of $2,500 for his involvement in a heroin import such as the subject one. That was a matter relevant to sentence. It was therefore the duty of both Crown and defence to disclose it to the court in this particular matter, the offender having pleaded guilty. Paragraph 1 of the offender's statement should not be construed in a way which negates that duty. If that duty involved in the offender's mind waiving for the purpose of the sentencing hearing pursuant to his plea of guilty his perceived right to withhold from the sentencing court's knowledge a matter relevant to sentencing then so be it. But the duty of disclosure for the purposes of sentence on the plea of guilty was clear. The Court was entitled to know, and the Crown and defence had a duty in the public interest and as a matter of public policy, to disclose to the Court, all relevant matters of which they were aware relevant to the sentencing process. The Court is entitled to know, for sentencing purposes on a plea of guilty, what the offender told police relevant to the admitted offence and his own culpability concerning it.
It should not be overlooked that the test of admissibility is relevance subject to rules of exclusion. Section 138 of the Evidence Act 1995 (Cth and NSW) provides that evidence that was obtained improperly can be admitted if the desirability of admitting it outweighs the undesirability of admitting it. If s 138 is applicable (and I did not hear argument on the matter) then it seems clear that the desirability of admitting the subject evidence against the offender does outweigh the undesirability of admitting it. It is not appropriate for the Crown and defence to make or support bargains or 'deals' which involve non-disclosure to the Court on sentencing pursuant to pleas of guilty matters which are known and which are relevant to be considered by the sentencing judge. To do so would be contrary to public policy and the public interest, and liable to bring the sentencing process into public disrepute."
87 At least three reasons are given, to do with authority, construction and duty of disclosure. It may be that relevance subject to rules of exclusion is a fourth reason. Some of the reasons are particular to the present case. Some are of general application. With respect, the reasons given were not a sound basis for his Honour to decline to accept the common submissions that he should not take into account the payment of $2,500.
88 So far as the judge's conclusion was founded on the New South Wales Crime Commissioner not having authority to bind the Commonwealth Crown in prosecutions under federal law, I do not think it was necessary that authority be demonstrated. The issue is not one of contractual obligation. Under the New South Wales Crime Commission Act 1985 the Commission has a wide investigatory function, and if he obtains evidence admissible in the prosecution of an offence against a law of the Commonwealth must furnish it to the Attorney General (s 6(1), (2)). The Commissioner, and more particularly Mr Gawel who must have conveyed the promise, were persons in authority. There can be little doubt that the applicant's statement was induced by the promise held out by a person in authority. There is thereby attracted the principle earlier mentioned that an involuntary confession is not admissible. In my view, the principle operates even if it is not demonstrated that the New South Wales Crime Commissioner has authority to bind the Commonwealth Crown in prosecutions under federal law.
89 So far as the judge's conclusion was founded on the construction of para 1 in the applicant's statement, I do not construe it in the manner the judge did. In my opinion it is plain that, in the circumstances then obtaining, neither the applicant nor the authorities would have intended that, with the exemptions mentioned, the information given by the applicant would be used in the criminal proceedings against him on the charge then pending any more than in other criminal proceedings which might be brought. The words have that meaning, and there is no reason to cut them down. That the applicant had made known that he intended to plead guilty did not alter their meaning. That the undertaking of the Commonwealth Director of Public Prosecutions was that the applicant would not be further prosecuted and left the current prosecution to proceed did not do so either. The unlikely prospect that the applicant would tell chapter and verse of his involvement in the drug importing organisation, knowing that the information could be used in his prosecution for the importation of 9 April 2000, tells against the judge's construction. R v Raz was not distinguishable.
90 The judge considered that, as a matter of public policy, it was the duty of the Crown and the defence to disclose to the court all matters known to them relevant to sentence. It should be observed that the question he was addressing was not one of disclosure, but of use of the information disclosed.
91 I am unable to accept that the applicant and the Crown were subject to such a generous duty; further, while no doubt ample and unselfish disclosure is a policy consideration, in relation to assistance provided to the authorities (and it is not necessary to go further) there are countervailing policy considerations.
92 Even at sentencing the offender and the Crown act within the adversary system, and it is not consistent with that system that the offender is under a duty to bring forward everything adverse to the offender's interests on sentencing. (See for example Boyd v Sandercock, ex parte Sandercock (1990) 2 Qd R 2, where it was held that the solicitor for the offender was "under no positive duty" to bring to the court's attention a previous conviction. Deliberately misleading the court would have been a different matter.)
93 The Crown is more the agent of the public interest, and the remarks of Gleeson CJ in R v Gallagher should be recalled, but the Crown must also act fairly towards the offender. There is a public interest in obtaining assistance to the authorities by promising that information disclosed will not be used against the offender, and no public interest in then going back on the promise. On the contrary, in the public interest the promise should be kept; otherwise the course of law enforcement will be harmed because offenders will not provide information to the authorities. Any doubt as to the propriety of leniency in recognition of assistance to the authorities has been put to rest by statute, for example s 23 of the Crimes (Sentencing Procedure) Act (NSW) and s 16A(2)(h) of the Crimes Act 1914 (C'th).
94 In these circumstances it can be proper, within the bounds spoken of in R v Gallagher, for the disclosure to the Court not to extend to the full content of a statement such as the applicant's statement. More to the point, it can be proper for the disclosure to be on the basis that the Crown does not use what is disclosed against the offender. It is too absolute to say that the Court is entitled to know what the offender told police relevant to the admitted offence and his own culpability concerning it, or to deprecate "deals" whereby the Court does not know those matters.
95 It is not clear whether the judge's conclusion was in part founded on relevance subject to exclusion on the desirability/undesirability test under s 138 of the Evidence Act. The Evidence Act did not apply. Even if it had applied, s 138 of the Evidence Act was not material because the applicant's statement was not obtained in circumstances of impropriety or contravention of the law. But again, the question was one of use of the information in a statement which had been admitted into evidence.
96 To return then to whether the Crown's concession conforms with legal principle, can relevant material be admitted on the basis that its use is restricted? Under the Evidence Act it can be done (see in particular s 136, and also provisions such as ss 91 and 95). It can also be done at common law or under prior statutory provisions. The prime illustration is hearsay: evidence that A said something to B may be admissible to prove that A made the statement to B, if that is a relevant issue, but not to prove the truth of what A said to B. Whether hearsay evidence admitted without objection can be used in proof of the truth of the hearsay statement, considered for example in Jones v Sutherland Shire Council (1979) 2 NSWLR 206 and the cases there referred to, is a different question; underlying it, however, is that there can be restricted use of the evidence. Other illustrations are evidence of prior inconsistent statements going to impugn the witness but not evidence of the facts stated (eg Hammer v S Hoffnung & Co Ltd (1928) 28 SR 260; R v Askew (1981) Crim L Rev 398); evidence of prior consistent statements going to rebut an allegation of recent fabrication but not evidence of the facts stated (eg Transport and General Insurance Co Ltd v Edmondson (1961) 106 CLR 23; R v Lawless (1974) VR 398); and evidence of complaint in sexual cases going to the credibility of the complainant but not evidence of the facts of which complaint is made (eg Ugle v The Queen (1989)167 CLR 647). It is not necessary to multiply illustrations. Restricted use of admitted material is open.
97 I see no reason why in appropriate circumstances the restriction cannot come from the express or implied basis on which evidence is tendered and admitted. In R v Raz the restriction appears to have been express, but in Meggett it seems to have been accepted that the restriction will normally apply. When in R v Potter it was said that the offender's statement became evidence for all purposes, the reason was that the undertaking not to use what was said in evidence against the offender was waived when the statement was tendered at the request of the offender's counsel. If a tender at the offender's request meant waiver, tender by the offender would mean waiver. Perhaps it was not sufficiently made clear that the tender was on the basis that the use of the statement should be restricted: as Meggett shows, an offender may consider that the information in a statement assisting the authorities should be taken into account in his favour. If that be so R v Potter may not stand against the approach taken in R v Raz, although it was also said that the practice of receiving statements such as the applicant's statement "purely on restricted grounds" should cease.
98 I respectfully prefer R v Raz. To receive a statement such as that of the applicant as evidence of the offender's assistance to the authorities, but not use the information in it against the offender as (for example) enhancement of his offending conduct, is in principle permissible and can serve a valuable purpose. Perhaps it will not always be appropriate, but I can see no reason why it should not have been done in the present case.