R v Campbell; R v Waters

District Court of NSW|2023-05-09|Before: Mr P

JUDGMENT

On 8 May 2023 the two co-accused were arraigned on an Indictment containing the following counts:- 1. Count 1 - that between 18 January 2017 and about 24 October 2017, at Sydney in the State of New South Wales and elsewhere, they did conspire with each other, Rohan Peter Arnold and divers others to import a substance, the substance being a border controlled drug, namely cocaine, and the quantity being a commercial quantity. 2. Count 2 - that between 24 October 2017 and about 16 January 2018, at Sydney in the State of New South Wales and elsewhere, they did conspire with each other, Rohan Peter Arnold and divers others to possess a substance, the substance being a border controlled drug, namely cocaine, and the quantity being a commercial quantity.
The co-accused entered pleas of not guilty to each count on the Indictment.
On 3 May 2023 the accused Campbell filed a Notice of Motion seeking the following orders:- 1. That the court grant an order for a stay of proceedings of the trial of David Edward John Campbell (2018/00017350) listed for trial on 1 May 2023. 2. In the alternate, that the Court make an order excluding the evidence obtained under the Major Controlled Operation. 3. Any other orders that the Court deems appropriate.

The evidence relied on by the applicant Campbell

The applicant relies on two affidavits sworn by his solicitor, Ms N Anastasiou. In the first of those affidavits, sworn on 28 April 2023, she set out a chronological history of the matter, consistent with the chronology above. On 14 March 2017 she deposed that an Investigative Strategy was approved by Commander B Hill, Manager of Organised Crime. That strategy did not involve a controlled delivery, but rather seizure of the shipment and identification of it as "lost on the dock". It was that strategy pursuant to which the consignment was seized by the AFP and ultimately the MCO identified as "17-18/27" was authorised on 15 September 2017. Copies of the various authorisations were annexed to the affidavit together with the Crown case statement. Also annexed were the following:- 1. Annexure H - transcript of conversation between Mr Campbell and the NZ UCO Henry. 2. Annexure I - transcript of meeting between Henry and Mr Campbell in Auckland on 27 October 2017. 3. Annexure J - statement of Federal Agent Peter Steinle regarding the provision of two encrypted telecommunications devices 4. Annexure K - transcript of extract of encrypted messages between the UCO Ivan and "Governor". 5. Annexure L - transcript of conversation between UCO Ivan and an unknown Spanish speaking male and a female interpreter held in Bangkok, Thailand, on Wednesday 15 November 2017. 6. Annexure M - Court order from Higher Court in Belgrade concerning undercover investigations to be carried out in Serbia. 7. Annexure N - report from Serbian police on events in Serbia, including the arrest of the co-accused on 18 January 2018. 8. Annexure O - extract of transcripts of encrypted communications on the group chat entitled "NZ Project".
In her affidavit sworn on 4 May 2023 Ms Anastasiou deposed to and annexed the following:- 1. Annexure AA - transcript of the conversation between Campbell and the UCO Henry on 24 October 2017. 2. Annexure BB - further extract from the encrypted communications, including message from Governor concerning the Bangkok meeting. 3. Annexure CC - transcript of part of the record of interview with Mrs Campbell. 4. Annexure DD - Critical Case Note entries, including decision log for events that took place between 10 December 2017 and 1 January 2018, and Case Notes relevant to the investigation.

The evidence relied on by the applicant Waters

The applicant relies on an affidavit affirmed by his solicitor, Mr T Dib, which also set out a chronology of relevant events reflected in the above chronology. The deponent also annexed copies of the Indictment, Crown Case Statement and the relevant authorities together with the Critical Case Note entry and decision log entries referred to by Ms Anastasiou.
Annexure J to the affidavit comprised a number of AFP Situation Reports relevant to the investigation.
Additional evidence was tendered during the submissions. Counsel for Campbell tendered a report issued by Serbian Police on the covert surveillance that took place in Serbia. Learned Senior Counsel for Waters tendered a bundle of encrypted messages between the participants in the "NZ Project"; this bundle was marked as Exhibit 1 on the voir-dire.

Crown evidence

In opposing the applications the Crown relied on a bundle of evidence which became Exhibit A, comprising eleven documents (A.1 - A.11). 1. Exhibit A.1 was an email from Federal Agent Stuart Millen dated 19 November 2017 concerning contact between Campbell and the NZ UCO. 2. Exhibit A.2 were further screenshots from the "NZ Project". 3. Exhibit A.3 was an extract from the official diary of Agent Millen. 4. Exhibit A.4 was an AFP Situation Report dated 28 November 2017. 5. Exhibit A.5 was an email from Agent Millen dated 4 December 2017. 6. Exhibit A.6 was an email from Agent Millen to Stephen Dametto dated 5 December 2017. 7. Exhibit A.7 was an AFP Situation Report dated 6 December 2017. 8. Exhibit A.8 was an email from Agent Millen to Richard Stanford dated 7 December 2017. 9. Exhibit A.9 was a Cellebrite extraction report for Campbell's Ciphr device. 10. Exhibit A.10 comprised an extract of screenshots from Campbell's Ciphr group chat. 11. Exhibit A.11 was a record of conversation between Federal Agent Andrews and Mrs Campbell on 17 January 2018.
The Crown also tendered a bundle comprising the record of conversation of the meeting in Belgrade on 16 January 2018 between the two UCOs together with the accused Waters and Mr Arnold. The purpose of the tender was to establish that no inducement was held out to Mr Waters of any kind to secure his involvement in criminal conduct.

The legislation

Part 1AB of the Crimes Act 1914 (Cth) ("the Crimes Act") deals with controlled operations. The objects of this part of the Crimes Act are set out in s15G as providing for the authorisation, conduct and monitoring of controlled operations and to exempt from criminal liability, and to indemnify from civil liability law enforcement officers involved in such operation or other persons who act in accordance with the instructions of such law enforcement officers. S 15GD provides as follows:- "Meaning of controlled operations and major controlled operations (1) A controlled operation is an operation that: (a) involves the participation of law enforcement officers; and (b) is carried out for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious Commonwealth offence or a serious State offence that has a federal aspect; and (c) may involve a law enforcement officer or other person in conduct that would, apart from section 15HA, constitute a Commonwealth offence or an offence against a law of a State or Territory. Note: Section 15GN specifies when a controlled operation begins and ends. (2) A major controlled operation is a controlled operation that is likely to: (a) involve the infiltration of an organised criminal group by one or more undercover law enforcement officers for a period of more than 7 days; or (b) continue for more than 3 months; or (c) be directed against suspected criminal activity that includes a threat to human life. Note: Section 15GN specifies when a controlled operation begins and ends."
S15GF of the Crimes Act provides that the Authorising Officer for a MCO is the Commissioner or Deputy Commissioner of the AFP.
S15GH provides for an application for a controlled operation to be made by an Australian Law Enforcement officer. Determination of such an application is provided for in s15GI which provides as follows:- "15GI Determination of applications (1) An authorising officer may, after considering an application for an authority to conduct a controlled operation, and any additional information provided under subsection 15GH(5): (a) authorise the controlled operation by granting the authority, either unconditionally or subject to conditions; or (b) refuse the application. (2) An authorising officer must not grant an authority to conduct a controlled operation unless the authorising officer is satisfied on reasonable grounds (a) that either: (i) a serious Commonwealth offence or a serious State offence that has a federal aspect has been, is being or is likely to be committed; or (ii) an integrity testing authority is in effect in relation to an offence that it is suspected has been, is being or is likely to be committed by a staff member of a target agency (see the notes at the foot of this subsection); and (b) that the nature and extent of the suspected criminal activity are such as to justify the conduct of a controlled operation; and (c) that any unlawful conduct involved in conducting the controlled operation will be limited to the maximum extent consistent with conducting an effective controlled operation; and (d) that the operation will be conducted in a way that ensures that, to the maximum extent possible, any illicit goods involved in the controlled operation will be under the control of an Australian law enforcement officer at the end of the controlled operation; and (e) that the proposed controlled conduct will be capable of being accounted for in a way that will enable the reporting requirements of Division 4 to be complied with; and (f) that the controlled operation will not be conducted in such a way that a person is likely to be induced to commit a Commonwealth offence or an offence against a law of a State or Territory that the person would not otherwise have intended to commit; and (g) that any conduct involved in the controlled 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 of a sexual offence against any person; or (iv) result in significant loss of, or serious damage to, property (other than illicit goods); and (h) that any role assigned to a civilian participant in the operation is not one that could be adequately performed by a law enforcement officer. Note 1: Subparagraph (a)(ii) applies in relation to offences punishable on conviction by imprisonment for 12 months or more (see section 15JG). Note 2: The target agencies mentioned in subparagraph (a)(ii) are the ACC, the Australian Federal Police and the Immigration and Border Protection Department (see section 15GC). (3) To avoid doubt, an authorising officer may authorise a particular controlled operation only if he or she is an authorising officer for the controlled operation within the meaning of section 15GF. (4) An authority granted under this section is not a legislative instrument."
S15GA provides as follows:- "15GA Relationship to other laws and matters (1) Subject to subsection (2) and section 15HZ, this Part is not intended to limit a discretion that a court has: (a) to admit or exclude evidence in any proceedings; or (b) to stay criminal proceedings in the interests of justice. (2) In determining whether evidence should be admitted or excluded in any proceedings, the fact that the evidence was obtained as a result of a person engaging in criminal activity is to be disregarded if: (a) both: (i) the person was a participant in a controlled operation authorised under this Part acting in the course of the controlled operation; and (ii) the criminal activity was controlled conduct; or (b) both: (i) the person was a participant in an operation authorised under a corresponding State controlled operations law acting in the course of that operation; and (ii) the criminal activity was conduct constituting an offence for which a person would, but for section 15HH, be criminally responsible."
S15HA provides as follows:- "15HA Protection from criminal responsibility for controlled conduct during controlled operations (1) This section applies if: (a) a participant in a controlled operation engages in conduct in the course of, and for the purposes of, the controlled operation; and (b) engaging in that conduct is a Commonwealth offence or an offence against a law of a State or Territory. (2) Despite any other law of the Commonwealth, a State or a Territory, the participant is not criminally responsible for the offence, if: (a) the participant engages in the conduct in accordance with the authority to conduct the controlled operation; and (b) the participant is identified in the authority as a person authorised to engage in controlled conduct for the purposes of the controlled operation; and (c) the conduct does not involve the participant intentionally inducing a person to commit a Commonwealth offence or an offence under a law of a State or Territory that the person would not otherwise have intended to commit; and (d) the conduct does not involve the participant engaging in any conduct that is likely to: (i) cause the death of, or serious injury to, any person; or (ii) involve the commission of a sexual offence against any person; and (e) if the participant is a civilian participant in the operation - he or she acts in accordance with the instructions of a law enforcement officer."
Also relevant is s15HZ which provides as follows:- "15HZ Evidence of authorities A document purporting to be an authority granted under section 15GI or under a corresponding State controlled operations law: (a) is admissible in any legal proceedings; and (b) in the absence of evidence to the contrary, is proof in any proceedings (not being criminal or disciplinary proceedings against a law enforcement officer) that the person granting the authority was satisfied of the facts he or she was required to be satisfied of to grant the authority."

Submissions on behalf of the applicant Campbell

Each of the applicants and the Crown have relied on thorough and detailed written submissions and have made oral submission supporting their position. In the following summary I will endeavour to distil the critical submissions they rely on.
In his written submissions counsel for Campbell submitted that the MCO authorised on 15 September 2017 was invalid because when objectively viewed the Authorising Officer, Deputy Commissioner Close, could not have been satisfied on reasonable grounds of the matters contained in s15GI(2)(g)(i) "seriously endanger the health or safety of any person" or (ii) "cause the death of, or serious injury to, any person".
Counsel referred to the Investigative Strategy initially approved, namely, that rather than a controlled delivery of the consignment, the container would be identified as "lost on the dock". It was submitted that this strategy was "innately dangerous and has the potential to cause serious injury, harm or death to individuals involved". It was further submitted that "the Authorising Officers would have been aware of the conduct in which the police proposed to engage in, and this would have been mapped out in support of the application for the controlled operation". It was further submitted that the first and second variations, and the extension variation authorised by the AAT Member were invalid because a variation of an authority is valid only if the initial authorisation is valid, which was not the case here.
Counsel submitted that because the authorisations were invalid they did not attract the protections of ss 15GA(2), 15GZ and 15HA. It was submitted that the relevant satisfaction of the Authorising Officer, which was a jurisdictional fact, had not been formed lawfully or reasonably, whilst the decision pursuant to s15GI(1) conferred a discretion to issue an authority, it was submitted that a decision may be legally unreasonable if it "lacks an evident and intelligible justification" relying on Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76]. It was further submitted that where an administrative decision maker makes a decision that is so unreasonable or irrational that no reasonable decision maker could possibly make it, regard must be had to the material, which was actually before the decision maker, relying on CanWest Global Communications Corp v Australian Broadcasting Authority [1997] FCR 540.
Counsel for Campbell relied on Gedeon and Dowe v Commissioner of the NSW Crime Commission (2008) 236 CLR 120; [2008] HCA 43 where the High Court held that a controlled operation authorised under State law involved conduct that was likely to seriously endanger the health or safety of people and should not have been authorised by the NSW Crime Commission. The relevant risk the Commission failed to take into account was the risk of seriously endangering the health of at least some of the end purchasers of cocaine. This was held to be reasonably foreseeable and was sufficient to attract a prohibition under s7(1)(b) of the Law Enforcement (Controlled Operations) Act 1997 (NSW) ('LECO').
It was submitted on behalf of Campbell that the MCO does not on its face identify any grounds upon which the requisite statutory satisfactions were held, nor does it record any view on the part of the deputy commissioner that the satisfaction was held on reasonable grounds. It was further submitted that the controlled conduct was apt to induce the commission of offences which a suspect would not otherwise intend to commit, in breach of s15GI(2)(f).
It was submitted on behalf of Campbell that the breach of s15GI(2)(g)(i) and (ii) by the Deputy Commissioner, namely, seriously endanger the health or safety of any person or cause the death of or serious injury to any person arose through the nature of the controlled operation. It was submitted that the AFP officers "ought to have known, or at the very least turned their mind to, the dangers arising from stealing a container that potentially involved those South American and Chinese criminal organisations, and the consequences that would have on the health, safety of lives of people involved. Particularly when one takes into account the large size and value of the cocaine seized."
Further the length of time for which the AFP held the container caused ongoing tension, anxiety and frustration within the organisation involved in the importation as evidenced in the encrypted messages which included threats of death and harm to people and their families. By conducting the MCO in various countries it also gave rise to a risk of danger to the health or safety of those involved.
It was submitted on behalf of Campbell that by not allowing delivery of the prefabricated steel with the border controlled substances substituted Campbell was denied the opportunity to demonstrate that he knew nothing about what was contained within the steel beams. Having been denied that which would have occurred he was then a suspect and the focus on the investigations for a period of six months from 1 April 2017 until 24 October 2017. At that time the AFP commenced a new charge of conspiracy to possess (Count 2).
Counsel for Campbell submitted that it was reasonably foreseeable thereafter that the safety of both Campbell and others would be endangered, for example by conducting the operation in Serbia, a country which it was submitted was "awash with weapons". That was evidenced by the fact that Campbell was charged and convicted of possession of a firearm in Serbia following his arrest.
Counsel referred to the Case Notes of AFP officers to submit that during the MCO the safety of Campbell was at risk because of threats being made by others in the drug organisation. Those notes evidence the monitoring of that risk and identified concerns for his safety at various times during the MCO. Counsel further relied on extracts from the Ciphr messages in Annexures K and O to the first affidavit of Ms Anastasiou referred to above.
Finally, counsel rehearsed the submission made in his written outline as to the reasonableness of the decision made by the Authorising Officer, relying on Prior v Mole (2017) 261 CLR 265 at [24], submitting that the question is objective, "and it is not enough (or even relevant) that the decision maker thinks that there are reasonable grounds" per Gordon J at [97]. Counsel also relied on Palmer v State of Western Australia (2021) 95 ALJR 229 at [158] where Gageler J said that a satisfaction is not performed lawfully or reasonably unless it "is open to be formed by a reasonable person in the position of the [decision maker] on the basis of the information available to the [decision maker] and [it] must be one that is in fact formed by the [decision maker] through an intelligible process of reasoning on the basis of that available information."

Submissions on behalf of the applicant Waters

Learned Senior Counsel for Waters also relied on a thorough and detailed written outline of submissions in which he submitted the certificates of authorisation of the MCO dated 15 September 2017 and the variations dated 8 and 13 December 2017 and the authorisation dated 20 December 2017 were invalid as they were in breach of s15GI(2)(f) and s15GI(2)(g)(i)-(ii) of the Crimes Act.
Learned Senior Counsel set out the relevant history and submitted that no evidence served by the Crown directly implicated Waters in respect of the two counts on the Indictment prior to the meeting at the Metropol Hotel in Belgrade on 16 January 2017 and subsequent seizure of the encrypted phone devices in the possession of Waters and Arnold. Importantly none of the chat group messages involved Waters and it was submitted that no evidence had been served to reliably support the basis upon which the AFP believed that the applicant was otherwise involved in the relevant import and/or attempts to retrieve the cocaine consignment.
Counsel summarised the circumstances in which Waters came to be present at the meeting in Belgrade. Following his arrest and seizure of his Blackberry device, messages were recovered regarding preparation for the meeting from 7 January 2018 and those messages were also found on the device seized from Arnold.
Waters submitted that the correct approach was that adopted in Gedeon and Dowe v Commissioner of the NSW Crime Commission (2008) 236 CLR 120; [2008] HCA 43 at [22]-[34] and [43]-[49]. As set out above that case involved the application of the NSW LECO Act. The enabling provisions for a controlled operation were found in ss 6 and 7 of that Act which are not in the same terms as s15GI of the Crimes Act. The High Court held that the critical provision was contained in s7(1) of the LECO Act, which provided:- "(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 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, or (c) Engaging in conduct that involves the commission of a sexual offence against any person."
The High Court held in that case that the authority was granted contrary to s7(1)(b) because of the risk to the health and safety of end users of the cocaine when disseminated into the community, and that that was more than a procedural defect, thereby rendering the authorisation invalid. The Court held, at [57] that "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".
Accordingly, the test pursuant to s15GI(2)(f) of the Crimes Act is that a reasonable person in the position of the respondent would have foreseen that the conduct of the activities the subject of the Authorities here would involve a risk that a person could be induced to commit a Commonwealth offence that the person would not otherwise have intended to commit. It was submitted that there would have no offence pursuant to Count 2 but for the controlled operation as it relates to a conspiracy to possess a border controlled drug between 24 October 2017 and 16 January 2018. It was submitted that had the police arrested the co-accused and others known to be involved in the consignment before embarking upon the MCO and/or completed a controlled delivery with substituted substance as often occurs, there would have been no second offence of a conspiracy to possess the border controlled drugs.
It was further submitted that the same risk pursuant to s15GI(2)(f) arose as a result of the situation report dated 28 November 2017 where investigators considered that the suggestion that Campbell might attend a meeting with UCO Ivan was a ruse, and "it is likely Campbell and a minor syndicate member purporting to be "MC" would attend the meeting and therefore would not progress the objectives of the operation". Having identified that risk it was submitted the certificates of authorisation dated 8, 13 and 20 December 2017 were also in breach of s15GI(2)(f) and were invalid as a result.
Learned Senior Counsel for Waters adopted the submissions made on behalf Campbell as to invalidity arising as a result of a breach of s 15GI(2)(g)(i) and (ii) in that a reasonable person in the position of the respondent would have foreseen that the conduct of the activities the subject of the Authorities would involve a risk of seriously endangering the health and/or safety of any person; or the risk of causing the death of, or serious injury of any person. It was submitted that the Ciphr messages and the AFP Situation Reports clearly demonstrated such a risk to the health of Campbell, his family, the undercover officers, Arnold and his family and indeed by extension anyone else drawn into attempting to retrieve the shipment of cocaine, including Waters and his family.
Learned Senior Counsel rehearsed his written submission that no evidence was relied on by the Crown to directly implicate the applicant in the criminal conduct with respect to these charges prior to the meeting at the Metropol Hotel in Belgrade and that Waters had not been identified as one of the participants in the encrypted group chats. Counsel highlighted the AFP Situation Report of 28 November 2017 (Annexure J to the affidavit of Torik Dib) and the reference to a series of messages in which threats were made to the lives of UCO Ivan, Campbell and Arnold. Following that the MCO was extended to enable an exchange of money in Serbia. Counsel referred to Waters representing himself at the meeting on 16 January 2018 in Belgrade as being one of three principals ("Gov" and "MC" being the other two principals). Waters was recorded as saying, "If this goes bad, its on my head".
Counsel then rehearsed his submissions in relation to the application of the High Court decision in Gedeon.
Counsel also identified relevant passages in the encrypted messages constituting threats.
In response to the Crown position that the Court was entitled to find the authorisations valid on their face, it was submitted that the decision in Gedeon allowed a collateral attack where there was an excess of authority. Applying the approach in Gedeon, where the High Court took into account evidence in relation to the dissemination of drugs into the community and held ultimately that the authorisation was there invalid, it was submitted the Crown's reliance on [46] in Gedeon to support a proposition that s7(1) of the LECO Act should be distinguished from s15GI(2) is misconceived as not being a discretion but rather a prohibition.

The Crown submissions

The Crown also relied on a thorough and detailed written outline of submissions in which it was submitted first that the applications alleging invalidity of the authorisations amounted to an impermissible collateral attack, relying on Gould v Director of Public Prosecution (Cth) (2018) 273 A Crim R 9; [2018] NSWCCA 109 and Commissioner of Police, NSW v Taleb (2019) 276 A Crim R 192; [2019] NSWSC 21
Secondly and in the alternative the authorisations, variations and extension were lawfully issued and Gedeon is not authority that assists with the interpretation of Part 1AB of the Crimes Act 1914 (Cth) as the State LECO Act is expressed in significantly different terms.
Thirdly and also in the alternative, if the authorisations and variations were unlawfully issued the desirability of admitting new evidence obtained pursuant to them outweighs the undesirability of admitting the evidence pursuant to s138 of the Evidence Act 1995. It was common ground that this issue is to be deferred pending my determination of the two applications.
Finally the Crown submitted that the proceedings should not be stayed because it has not been established that either count in the Indictment is an abuse of process or is doomed to fail.
After setting out the legislation concerning controlled operations under the Crimes Act, the principal Crown submission was that the attack on the authorisations should not be permitted. It appeared that the nature of the attack was that the Authorising Officers could not have been satisfied on reasonable grounds of the matters set out in s15GI.
The Crown distinguished Gedeon on the basis that s7(1)(b) as construed by the High Court prohibited the issue of a controlled operation authority by delimiting the scope for any exercise of authority by force of the expression "must not be granted" in s7(1). S15GI(2) (along with s15GQ(2) and s15GV(2)) are expressed in very different terms, namely, they empower the Authorising Officer to issue an authority or variation if "satisfied on reasonable grounds" of the matters set out therein. Thus, any inquiry into whether those sections were satisfied could only be directed to whether the Authorising Officer was satisfied on reasonable grounds, and could not extend to a broader inquiry into whether the MCO was in fact likely to induce the commission of an offence or endanger health and safety of persons involved in the operation.
Relying on Gould v DPP (Cth), the Crown submitted that a collateral attack may not be mounted in criminal proceedings on the basis of the sufficiency of material available to the decision maker (here, the authorised officer). Secondly even if such an attack could be mounted the question for the court would be whether the authorised officer "could reasonably" have been satisfied of the matters in s15GI(2)(f) and (2)(g).
Further there had been no suggestion by the co-accused in this matter that there was any impropriety even in the application for the controlled operations authoritisations or the variations or impropriety in the execution of the controlled operation itself. The Crown also relied on R v Taleb where Hamill J said at [32]:- "A party cannot "go behind" a warrant (such as a search warrant, a surveillance device warrant or telephone intercept warrant) in an attempt to obtain the material that was used to procure the warrant. The validity of the warrant is determined by considering whether it is valid "on its face". An accused in a criminal trial may not mount a "collateral attack" on the validity of the warrant by seeking to examine the sufficiency of the material upon which the relevant authorised person or authority issued the warrant."
The Crown further relied on [37] where his Honour noted that the later emergence of evidence did not retrospectively invalidate a controlled operations authorisation.
In respect of the MCO dated 15 September 2017 the Crown noted the matters recorded by Deputy Commissioner Close of which she was satisfied by information given to her including:- "f. The controlled operation will not be conducted in such a way that a person is likely to be induced to commit a Commonwealth offence…; and g. Any conduct involved in the operation will not… seriously endanger the health or safety of any person."
The Crown further noted that on 8 December 2017 Deputy Commissioner Close again stated she was satisfied on reasonable grounds of those relevant matters, that on 13 December 2017 a member of the AAT had similarly recorded his satisfaction on reasonable grounds of those relevant matters and again on 20 December 2017 Deputy Commissioner Close varied the controlled operation authority and recorded she was again satisfied on reasonable grounds of those relevant matters. Thus any suggestion that the authorised officers were not in fact satisfied of the relevant matters was doomed to fail. As the material they formed their satisfaction upon is not before the court, it is impossible for the co-accused to establish that there were not reasonable grounds for authorising the MCO and varying it.
The Crown also relied on what was said in Gedeon at [59], that "hypothetical examples of what might be thought to be extreme situations cannot determine the particular issue of the validity of the Authorities…". The Crown also relied on Dowe v NSW Crime Commission (2007) 117 A Crim R 44 where Basten JA said at [67]:- "Similarly, retaliatory acts by a person targeted in the operation, which may endanger the safety of participants or third parties might properly be said to flow, not from the authorised conduct, but from a belief of the person targeted that he or she had been betrayed to the Authorities. Whether such a conclusion is open would need to be considered in specific circumstances as they arose, as would findings as to whether the risk were likely or unlikely to eventuate."
The Crown submitted that any danger to health or safety identified in the evidence was not caused by the authorised conduct. Rather threats made by Gov and MC were as a result of their desire to have possession of their cocaine and their belief that threats of violence were the best way to achieve this. The Crown submitted that events taking place after the authorisations were not relevant to the authorised officer's assessment of danger or risk made before those events occurred.
The Crown submitted that there was no evidence of inducement of the co-accused to commit an offence they would not have otherwise committed. It was submitted that the effective investigation by police of the kind of criminal activity the subject of the charges may involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. Such conduct does not, without more, induce a person to commit an offence the person would not otherwise have intended to commit.
The Crown conceded that the evidence against the accused Walters predominantly consists of the audio recording of the conversation at the meeting in Belgrade between Waters, UCO Ivan and others. The Crown submitted that the recording contains alleged admissions made by Waters that he was a participant in the conspiracy, the subject of Count of 1 in the Indictment. No police conduct induced him to participate in the alleged offending. Further there was no evidence that the AFP in anyway induced Waters to come to Serbia and undertake the conduct and admissions alleged.
The Crown during submissions tendered two further documents. Exhibit B was a statement of Federal Agent Millen dated 4 May 2023. The statement on its face set out steps taken by him, following the authorisation of the MCO on 15 September 2017, to ensure that that operation did not seriously endanger the health or safety of any person or cause the death of or serious injury to any person. He thereafter set out the police response to various threats contained in the encrypted chat messaging group "NZ Project". Exhibit C was the transcript of the conversation at the meeting in Belgrade on 16 January 2018. It was tendered on the basis that the Crown submitted that there was nothing in it which established that Mr Waters could possibly have been induced to participate in the offending.
The Crown rehearsed its submission, having referred to the various encrypted messages including those in Exhibit B, that the court was not able to utilise that material to undertake an objective assessment as to whether the decision maker was reasonably satisfied of the matters contained in s15GI(2) at the time of making her decision. The Crown noted that one situation that any risk was mitigated concerning Mr Campbell was his statement to the effect that if things went wrong he would go to the police.
The Crown submitted that the only collateral attack available to the authorisation is on the face of the authorisation, for example if it did not comply with s15GK of the Crimes Act. No such complaint had been made here.
The Crown submitted that whilst the expression of reasonable satisfaction with the matters outlined in s15GI(2) was not required by statute, it had been included in each of the MCO authorisations and variations. Thus the authorised decision maker had acknowledged each of the matters they had to consider. There was no evidence to establish that the authorised officer was not so satisfied and therefore the authorisation was valid.
The Crown rehearsed his submissions regarding the distinction between ss 6 and 7 of the LECO Act and the construction of s15GI of the Crimes Act. In Gedeon the High Court had identified s 7 as delimiting the power to authorise a controlled operation pursuant to s6. It was submitted that s7 goes to jurisdiction and is not discretionary in any way and that opened the door in relation to a State controlled operation for an objective assessment to be undertaken of the controlled operation authorisation as to whether or not it is beyond power, as referred to in [46] of the judgment. The Crown submitted that that was enough to dispense with the applications here because there was nothing on the face of the relevant authorisations that would allow the court to hold that they were invalid.
The Crown rehearsed his submission that none of the material before the authorised officer when making the MCO was before the court. The Crown referred to the pretrial judgment of Pickering DCJ where a subpoena seeking production of such material was determined to have no legitimate forensic purpose and then set aside.
Further, in the absence of any evidence the court would not come to the conclusion that the decision reached by the authoriser was so unreasonable or irrational that it could not possibly have been valid.
The Crown submitted that the evidence before the court relating to the police undertaking ongoing monitoring of the situation and risk assessment was relevant as to how the court would look at the objective test if an assessment was made in relation to endangering health and safety. Further there was nothing in the conduct of the operation which amounted to an inducement to participate in criminal activity other than just providing an opportunity. An example of that was the submission made on behalf of Mr Campbell that he was enticed to go to New Zealand whereas the transcript of the telephone conversation on 24 October 2017 demonstrated that it was Mr Campbell who offered to fly over to New Zealand.

Submissions in reply

Learned Senior Counsel for Waters relied on a written outline of submissions in reply. He submitted that any distinction between s7(1) of the LECO Act and s15GI(2) was without substance and amounted to the same type of prohibition. It was submitted the requirement of s15GI also delimited the scope of any exercise of authority where the proposed operation involved any participant in the operation in any of the activities identified in s15GI(2)(f) and (g)(i) and (ii).
It was submitted that the legislative schemes for controlled operations in the LECO Act and s15GI(2) required Authorising Officers to make decisions in the same way and therefore both were open to a collateral attack if the issue that they exercised beyond power was raised on the evidence.
Counsel referred to the protection from criminal responsibility contained in s15HA of the Crimes Act in which there is no reference to any determination being "upon reasonable grounds".
Counsel further submitted that in Gedeon the High Court expressly accepted that a collateral attack was available upon the validity of such a certificate as in circumstances referred to in Ousley v The Queen (1997) 192 CLR 69 at [22]. Similarly a collateral attack was allowed in Taleb v R [2019] NSWSC 241 where Hamill J held the relevant certificate was invalid. The correct test was that outlined in [57] of the judgment in Gedeon.
It was submitted that the evidence here demonstrated a level of concern detailed in the Situation Reports and Ciphr messages as to the risk to the health and safety of Campbell, Arnold and anyone else drawn into the controlled operation. A further bundle of Ciphr messages was tendered, and subsequently marked as Exhibit 1 on the voir-dire, to support this submission.
It was submitted that the controlled operation created the offence in Count 2 and without the controlled operation there was no possibility of that offence occurring.
Counsel for Campbell was given the opportunity to make submissions in relation to the additional Exhibits B and C adduced by the Crown on the voir-dire. Counsel submitted that the statement by Deputy Commissioner Close on the authorisation dated 15 September 2017 that she was "satisfied by information given to me" does not reflect what was required by the Act, which was satisfaction on reasonable grounds, not simply on information given to her. That did not apply to the variations and extension of the authority where each of the decision makers stated they were "satisfied on reasonable grounds".
It was further submitted by counsel for Campbell that when the whole of the transcript of the telephone call made on 24 October 2017 was read, there was no offer by Campbell to travel to New Zealand but rather inducement by the UCO at that very first contact to get Campbell to leave the jurisdiction.

Determination

In considering the question of validity of the relevant authorisations made pursuant to s15GI of the Crimes Act, to the extent that that involves construction of the relevant provisions of that Act, the relevant principles of statutory construction must be borne in mind. In GS v R; Director of Public Prosecutions (NSW) v GS [2022] NSWCCA 65 Payne JA (with whom Rothman and Harrison JJ agreed) set out the legal principles relevant to the question of construction at [38] and [39] as being purposive. His Honour then set out the following relevant principles of construction of a criminal statute as explained by Kiefel CJ and Keane J in R v A2 (2019) 269 CLR 507; [2019] HCA 35 at [32]-[33] and [37]:- "[32] The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision. [33] Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. 'Mischief' is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve. ... [37] None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular case, 'if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance'. When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred." (Footnotes omitted.)"
Part 1AB of the Crimes Act deals with controlled operations and the objects of the part are set out in s15G.
The first authorisation for the MCO was made on 15 September 2017. In context, it was made 6 months after the AFP had commenced investigation into the particular enterprise for importation of border controlled drugs and 5 months after the AFP intercepted the consignment and seized a very large quantity of the drugs. The AFP had proceeded pursuant to an Investigative Strategy up until that time that the consignment was "lost on the dock". Although the investigations continued between seizure of the consignment and the making of the MCO, there is no evidence before the court of the material on which the authorisation was made on 15 September 2017 (nor the subsequent variations and extension authorisations). Rather on its face the authorisation by Deputy Commissioner Close sets out the nature of the serious Commonwealth offences within the meaning of s15GE of the Act "which have been or will be committed", she notes that the investigation is targeting the activities of Waters, Arnold, Campbell and one other, that the drugs had passed through the Czech Republic and the People's Republic of China and states that she is satisfied by information given to her of the relevant matters pursuant to s15GI(2) of the Act including (2)(f) and (g).
The same Deputy Commissioner authorised the variation on 8 December 2017, stating that she was satisfied on reasonable grounds of the same matters. On 13 December 2017 an authorised Member of the AAT authorised an extension of the MCO for a period of three months, stating that he was satisfied on reasonable grounds of the same matters following which on 20 December 2017 Deputy Commissioner Close varied the MCO stating that she was satisfied on reasonable grounds of the same relevant matters pursuant to s15GI(2) of the Act.
The evidence relied on by the applicants here to demonstrate that the decision maker could not have been satisfied on reasonable grounds of the matters set out in s15GI(2)(f) and (g)(i) and (ii) falls into two categories. The first is the encrypted Ciphr messaging between participants in the drug importation enterprise in which threats were made to Campbell, his family, Arnold and his family and perhaps to UCOs (referring to photographs taken of the UCO in Bangkok and reference to passports). The second category involves the Case Notes and Incident Reports following the authorisations which evidence Federal Agents monitoring the communications and assessing the risk involved in the threats. The applicants argue that that evidence is of the same character as the evidence in Gedeon where the High Court found that the controlled operation, by delivering a quantity of cocaine to a suspect, resulted in the delivery of the drug to end users and thereby endangering their health and safety. On the basis of the wording of s7 of the LECO Act, which delimited the power to the authorising person in s6, the authority was found to be invalid. The question thus arises whether Part 1AB should be construed in the same way as the State Act, and if so whether the evidence here demonstrates invalidity in accordance with Gedeon.
I am not persuaded that s15GI should be construed in the same way as the High Court construed s7 in Gedeon. First, the High Court in Gedeon noted the history of the introduction into the Crimes Act of Part 1AB following the Court's decision in Ridgeway v The Queen (1995) 184 CLR 19. At the time Gedeon was decided the enabling section was s15M which was in different terms to s15GI and the Court in Gedeon noted at [6] that s7 of the LECO Act was cast in different terms to s15M of the Federal law. At [46] the Court stated:- "Section 7(1) of the LECO Act is expressed in the terms of prohibition and thus stands rather differently. The provision does not stipulate any criterion the satisfaction of which enlivens the exercise of a power or discretion. Rather, s 7(1) delimits the scope for any exercise of authority by a chief executive officer. There is no statutory power to grant an authority where the proposed operation involves any participant in the operation of any of the activities identified in pars (a), (b) and (c). That is the force of the expression "must not be granted" in s 7(1). It conveys the notion of a contraction in the content of what would be the power otherwise conferred by s 6."
S15GI as set out above is expressed in different terms with the prohibition ("must not grant an authority") qualified by the words "unless the Authorising Officer is satisfied on reasonable grounds" of the matters therein after set out in s15GI(2).
The delimiting nature of s7(1) as construed by the High Court led the Court to state 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 par (b) of s 7(1) of the LECO Act."
I am satisfied that the Commonwealth Parliament did not respond to the prospect referred to above in the same way, by qualifying the prohibition by the insertion of the words in s15GI(2) "unless the Authorising Officer is satisfied on reasonable grounds".
There is no evidence here upon which a finding of invalidity could be made of the authorisation of the MCO on 15 September 2017 and the subsequent variations and extension thereof. In the absence of such evidence s15HZ applies and therefore the authorisations constitute proof that the Deputy Commissioner and Mr Stefaniak were satisfied of the relevant facts.
If I am wrong in that finding, I am not satisfied on the evidence that, like Gedeon a finding could be made that the Authorising Officer could not have been reasonably satisfied so as to breach ss(2)(f) or (g). In respect of ss(2)(f) there is no evidence upon which I would be satisfied that any person was induced to commit an offence they would not otherwise have intended to commit. Similarly in respect of ss(2)(g), there is no evidence upon which a finding could be made that the Authorising Officer could not be reasonably satisfied that the conduct of the controlled operation would seriously endanger the health or safety of any person or cause the death of or serious injury to any person.
The MCO authorised the further investigation of an international drug importation enterprise in which the AFP had seized 1257kgs of cocaine and embarked on an Investigative Strategy so as to flush out those involved in the importation. None of the border controlled drugs were to be released into the community thereby endangering end users such as in Gedeon. Further, undercover police work is inherently dangerous work where the risk to participants is commonly monitored and assessed. That is exactly what happened here according to the various Case Notes.
Also assessed here on the evidence are threats made to those suspects of serious criminal conduct, such threats being made by those higher up in the hierarchy of the enterprise. Such threats were not the type of conduct that the Authorising Officer should have taken into account where the object of the legislation was to enable the further investigation of serious criminal conduct by means of the MCO. I reject the submission made by counsel on behalf of Campbell that persons were endangered following the "stealing" of the consignment by the AFP, as the border controlled drugs were lawfully seized. I also reject the submission that persons were endangered by the meeting taking place in Serbia as that is a country "awash with weapons" based on the fact that Campbell was convicted of a firearms offence there.
I therefore would have found that the assessment of the evidence relied on by the applicants would not have justified a finding that the authorisations, variations and extension of the MCO were invalid on the grounds that the Authorising Officer could not have been reasonably satisfied of the matters in (2)(f) and (g)(i) and (ii), or that any authorisation was on its face irrational.
The decisions of the Court of Criminal Appeal in Gould v Director of Public Prosecutions (Cth) and of Hamill J in R v Taleb do not assist the applicants relating as they do to authorisations for the issue of warrants.
For the above reasons I intend to make orders refusing prayer for relief number 2 in the Campbell Notice of Motion and refuse to make the declarations sought in prayer for relief number 1 and to order as proposed in prayer for relief number 2 in the Waters Notice of Motion.

The joint applications that the proceedings be permanently stayed

The principles relating to the grant of a permanent stay of a criminal prosecution are uncontroversial and are set out in the reasons of Bell CJ (with whom Davis and N Adams JJ agreed) in La Rocca v R [2023] NSWCCA 45 at [34]. As stated by his Honour the remedy is an extraordinary one only given in exceptional or extreme circumstances or where to refuse such a remedy would bring the administration of justice into disrepute.
Given my findings set out above and my proposed orders in this matter the Crown will be entitled to adduce evidence based on the MCO and therefore there is no basis for making the order sought by Campbell to stay the proceedings in Count 2 or the order sought by Waters in prayer for relief number 3 of his Notice of Motion. Both Notices of Motion will therefore be dismissed.

Orders

In respect of the Notice of Motion filed on 3 May 2023 by the co-accused Campbell relief sought in [1] and [2] thereof is refused and the Notice of Motion is dismissed.
In respect of the Notice of Motion filed on behalf of Waters by leave on 8 May 2023 I refuse to make the declaration sought in [1] thereof and to grant the relief sought in [2] and [3] thereof. The Notice of Motion is dismissed.

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: 07 May 2024

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