R v Ellis [2001] QSC 270

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - where applicant is suspected to be involved in the importation of heroin - where investigation carried out by both Federal and State police - whether investigation unconstitutional - whether evidence obtained in the investigation inadmissible due to it being illegally obtained

Australian Federal Police Act 1979 (Cwth) s 8, s 9

Customs Act 1901 (Cwth) s 219B

Drugs Misuse Act 1986 (Qld)

Judiciary Act 1903 (Cwth ) s 78B

National Crime Authority Act 1984 (Cwth) s 11, s 12, s 13, s 14, s 17

Privacy Act 1988 (Cwth) s 16

Lockwood v The Commonwealth [1954] HCA 31; (1954) 90 CLR 177, cited

R v Duncan; ex parte Australian Iron & Steele Pty Ltd [1983] HCA 29; (1983) 158 CLR 535, cited

R v Hughes [2000] 8 HCA 22, distinguished

Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19, referred

Victoria, State of and Commonwealth of Australia v Australian Building Construction Employees' and Builders Labourers Federation [1982] HCA 31; (1982) 152 CLR 25, cited

Mr Burmester with him Mr Witynski for the Commonwealth Attorney-General

Mr R F Greenwood QC with him Mr P Feeney for the applicant

Australian Government Solicitor for the Commonwealth Attorney-General

Director of Public Prosecutions (Queensland) for the Crown

[1] CHESTERMAN J: The applicant/accused has been charged with one count of trafficking in the dangerous drugs heroin and methylamphetamine; with seven counts of supplying either heroin or methylamphetamine; and four further counts of supplying a dangerous drug jointly with one Ronald Angelo Favaloro. They are to be tried separately.

He was to be tried last June but the trial was adjourned when the applicant's counsel foreshadowed a submission that the whole of the evidence to be led by the prosecution should be excluded on the basis that it was unlawfully obtained. The illegality was said to arise from the involvement in the gathering of the evidence by members of the Australian Federal Police ("AFP") and the National Crime Authority ("NCA") both of whom, it was asserted, had acted beyond the constitutional limits of their powers.

[2] To have the point determined efficiently Douglas J ordered that it be considered pursuant to s 592A of the Criminal Code, and further ordered that notices be given to the Commonwealth and State Attorneys-General pursuant to s 78B of the Judiciary Act. His Honour also ordered that the applicant give particulars of the grounds on which it was said the evidence was obtained unlawfully and the evidence which it was said had been obtained in breach of constitutional power.

[3] It will be necessary to consider the applicant's submissions in some detail but, in essence, the argument is that the applicant stands charged with offences against the criminal law of Queensland - the Drugs Misuse Act 1986 - and that there was no lawful authority for the AFP or the NCA to participate in an investigation into the commission of offences against such a law. Although the whole of the prosecution evidence is said to be tainted by illegality I apprehend that the real target of the complaint is the evidence obtained by listening devices installed on the applicant or his property pursuant to orders made in the Federal Court by virtue of s 219B of the Customs Act 1901.

[4] In or about April 1997 the applicant became the subject of an investigation conducted by the Queensland Police Service ("QPS") which suspected him of involvement in drug dealing. The investigation was given the code name "Eastlake". It involved the use of a covert police officer and another man who was known to, and indeed registered with, the NCA as an informant. The informant was used to introduce the covert police officer to Ellis. Their meetings were secretly recorded. On 7 May 1997 Detective Superintendent Dunne of the QPS convened a meeting of QPS and AFP officers. The result of the meeting was that the AFP agreed to "enter into a joint investigation . . . with QPS as the lead agency". Eight days later "after discussing strategies . . . it was decided (to) . . . employ Customs Act listening devices in this investigation as well as listening device warrants under the Drugs Misuse Act". On 23 May 1997 officers of the NCA were briefed on the investigation and that agency thereafter became a participant in it. Members of the QPS and AFP already involved were appointed to the staff of the NCA so that relevant information could be shared among the three agencies. The role of the NCA appears to have been limited to the dissemination of criminal intelligence it had gathered and the introduction of one of its covert operators, Sang, to the accused Favaloro. Sang was provided with money from the NCP budget which he used to purchase drugs from Favaloro. Those instances of purchase constitute the counts of supplying drugs alleged against him. By contrast it was the QPS covert officer who bought drugs from the applicant utilising moneys from the QPS budget. As with Favaloro the counts of supplying drugs alleged against the applicant are the occasions when the covert officer bought drugs from him.

[5] To facilitate cooperation between State and Federal police, members of the QPS involved in the investigation were sworn as special members in the AFP and AFP members were sworn as special constables in QPS.

[6] The applications for warrants to install listening devices made pursuant to the Customs Act were brought by permanent members of the AFP not by any of the specially sworn members. The information provided by the listening devices was monitored and recorded by members of the AFP.

[7] The applicant's submissions take as their starting point some observations found in the majority judgment of the High Court, Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, in R v Hughes [2000] 8 HCA 22:

" . . . a State by its laws cannot unilaterally invest functions under that law in officers of the Commonwealth; . . . a State law which purported to grant a wider power or authority than that the acceptance of which was prescribed by Commonwealth law would, to that extent, be inconsistent with the Commonwealth law and invalid under s 109 of the Constitution." (para 31)

"The present case emphasises that for the Commonwealth to impose on an officer or instrumentality of the Commonwealth powers coupled with duties adversely to affect the rights of individuals, where no such power is directly conferred on that officer or instrumentality by the Constitution itself, requires a law of the Commonwealth supported by an appropriate head of power." (para 46).

[8] The applicant seeks to make those principles applicable by contending that the investigation into his activities did not go beyond inquiring into whether there had been contraventions of a state law, the Drugs Misuse Act. To the extent that the AFP and NCA were involved it is asserted that nothing in their respective statutes empowered them to investigate breaches of state law. It was also submitted that state law could not impose upon those Commonwealth entities power to investigate a state criminal offence. It may be noted in passing that no state law was identified as purporting to have that effect.

[9] The necessary fact which underpins the applicant's case is that the AFP and NCA were assisting in an investigation only of offences against state laws. Without that there is no foundation for the applicant's contention. The reality is that the AFP became involved because of indications that Ellis was involved in contravening a Commonwealth law by being involved in the importation of heroin contrary to the Customs Act. The applicant's argument loses all force. To overcome this difficulty counsel for the applicant submitted that either officers of the QPS "tricked" the AFP into believing that there was evidence to implicate Ellis in the importation of drugs when there was not, or that the evidence implicating him was so flimsy as to be, and to be known to be, a mere pretext for AFP involvement in the investigation of a state offence. Mr Feeney described the evidence in this way (T7.45-55):

" . . . all that occurs on a taped conversation between . . . the assumed name of the . . . police officer, where Ellis recounts what he has been told by a man from Customs who he sees at the airport . . . where there's an assertion that somehow or other the military authorities in Thailand put drugs on planes that are taken away by the cleaners from the toilet. So it's Ellis recounting a bit of gossip heard at Customs somehow that translates as into drugs being the information being passed on to the Federal Police ... that becomes drugs are smuggled from the Philippines to a military man called "The General" at the Gold Coast."

This depiction does less than justice to the evidence.

[10] On 1 May 1997 the covert police officer discussed with the applicant the purchase of half a kilogram of heroin for a price of $12,000. The next day the applicant supplied the officer with a small amount of heroin. On 3 May the men again meet and the officer bought from the applicant 138 grams of heroin for a price of $7,500. It is notorious that heroin is not a substance which occurs naturally in Australia.

[11] A conversation between the applicant and the covert police officer on 2 May 1997 was tape recorded. Part of the conversation, which has been transcribed, proceeds thus:

"CPO . . . is it coming from the Chinese or the Romanians you know . . .?

Applicant I am not 100 per cent sure . . . I know how they brought the last lot in . . . that's how I got on to them . . . I was there . . . I used to buy a lot . . . when they impounded all the cigarettes at Customs and that . . . I got to know one of the Customs blokes . . . He said . . . they hire the last four seats of the jumbo . . . (from) Thailand . . . the army blokes put the shit under the seats, they ship four blokes over . . . in the four back seats before they drop . . . the last twenty minutes . . . go to the toilet and they ... leave the bags . . . as soon as the plane landed and the cleaner walks through the back door straight into the shit house . . . put the shit in the cleaner doesn't get checked.

[12] Officers of the QPS prepared a briefing note for the meeting called with members of the AFP on 7 May 1997. It summarised the substance of the contact between the applicant and the covert police officer to that date. It read, relevantly,

"Ellis said that he is bringing up a couple of kilograms on Sunday and that he will be keeping it at his warehouse. Peter will pay Ellis $500 a pound to sell it. Ellis intends to sell the heroin in one pound lots.

Ellis told the CPO that the heroin comes from Thailand, as there is no customs control in Thailand. The Thailand army books the last four seats in a commercial aircraft where the heroin is stored under the seats in the plane and the army personnel just sit on the seats and look after it. Just before they land they then move the heroin into the toilets where it is hidden. The heroin is later collected by a cleaner who can avoid customs."

[13] A different account appears in a document entitled "Involvement of Australian Federal Police in Operation `Eastlake'" prepared in June this year by Mr Wilson the AFP officer who led that service's involvement in the investigation. That summary records that at the meeting of 7 May 1997 Superintendent Dunne:

"... outlined their Operation Eastlake including the intelligence from Ellis that the heroin was being brought into Australia in the passenger cabin of aircraft from the Philippines, then supposedly organised by a military official known as The General who was on the Gold Coast."

The country of origin has shifted from Thailand to the Philippines, and the military involvement occurs in this country not in Thailand. These obvious discrepancies were put to Mr Wilson who gave evidence. He explained that the summary was compiled from memory, four years after the meeting, and without reference to the briefing note from which I have quoted and which was later produced and put into evidence. It was not put to the witnesses, and not contended by counsel for the applicant, that Mr Wilson regarded the information as false or worthless or that the purported investigation into drug importation was a sham to conceal the AFP's real activity which was that of investigating offences against the Drugs Misuse Act. No doubt has been cast on the authenticity of the briefing note. There is no suggestion it does not accurately reflect what the applicant actually told the covert officer.

[14] The applicant vacillated during the course of the hearing between asserting that the court had been given all the facts it needed to determine the point raised for its consideration, and contending that there should be a hearing, in the nature of a voir dire, to examine the motives and conduct of officers of the QPS, AFP and NCA to ascertain whether they genuinely believed they were investigating possible breaches of the Customs Act or whether they were not improperly utilising their powers to investigate contraventions of the Drugs Misuse Act. In the end it seems to have been accepted that Mr Wilson's word could be relied upon and that a ruling could be made on the lawfulness of the investigation without a further inquiry into facts. See T80.12-18.

[15] There were reasonable grounds for suspicion that the applicant was involved in the importation of heroin from Thailand or that he associated with those who imported the drug. He was not self evidently, as Mr Feeney contended, merely repeating gossip he had picked up at the airport. He was in possession of substantial amounts of heroin which he sold on a wholesale basis. He said he knew how "the last lot" entered the country because he "was there". He provided a detailed description of a means by which the drug was smuggled. There was clear ground for believing that surreptitious observation of the applicant and his communications with associates might identify persons engaged in criminal activity proscribed by the Customs Act. The same observation was likely to reveal criminal activity by the applicant and his associates involving the possession and sale of dangerous drugs. Unless this ancillary consequence invalidates the participation of the AFP and the NCA the applicant's argument fails at the threshold.

[16] The necessary precondition for the submission that it was unconstitutional for the AFP and NCA to investigate offences against state law has not been made out. Those two entities were exercising commonwealth power to investigate criminal offences against commonwealth law in conjunction with an investigation by state police into offences against state law.

[17] Section 8(1)(b) of the Australian Federal Police Act 1979 provides:

". . . The functions of the Australian Federal Police are:

(b) the provision of police services in relation to:

(ii) property of the Commonwealth . . and property of authorities of the Commonwealth; and

(iii) the safeguarding of Commonwealth interests . . ."

By s 8(1)(c) the AFP may do anything incidental or conducive to the performance of the foregoing functions.

Section 9 provides that, in relation to the laws of the Commonwealth and safeguarding Commonwealth interests, a member of the AFP has the same powers and duties that are conferred or imposed on an officer of police of equivalent rank in the police service of the state in which the member is acting. So, in relation to an investigation into a breach of Commonwealth law or, the protection of Commonwealth interests, a member of the AFP has the same powers and duties of a state police officer of equivalent rank.

[18] The applicant's complaint, as summarised by Mr Feeney, was that the members of the three investigative agencies looking into the activities of the applicant and Favaloro became a de facto conglomerate investigative body "each doing each other's job . . . in the course of (which) there was imposed upon . . . the NCA unilaterally an obligation to investigate offences against state law when what should have happened was that the separate bodies should have performed their separate statutory functions and exercised only the powers conferred by their separate statutes".

[19] There was, I am satisfied, a sufficient factual basis for the AFP to inquire into the applicant's activities in an endeavour to discover and apprehend those responsible for the importation of heroin. It should not be overlooked that the applicant was originally charged with importing heroin, though that charge was withdrawn and the present charges brought instead. The inquiry into importation was clearly a function imposed on the AFP by s 8 of its Act. If in performing that function it should discover that persons suspected of importing heroin were also dealing in drugs contrary to the laws of a state, investigation of that latter activity would be incidental or conducive to the performance of the function of investigating importation. I see nothing in the AFP Act which obliges a member of the AFP to shut his eyes and cover his ears when in the performance of his duties he observes criminal activity contrary to state law.

[20] Section 219B(4A) of the Customs Act allows an application to be made to a judge of the Federal Court by a member of a police force who is also a staff member of the NCA, or a member of the AFP, for permission to install a listening device on a person or in premises in connection with a narcotics inquiry.

This is what happened in the present case. Members of the AFP applied to the Federal Court and obtained warrants to install such devices. Section 219F(2) authorises the chief officer of the NCA or AFP to communicate information obtained by using a listening device to officers of a state police service.

The AFP had lawful authority to investigate the applicant in connection with suspected offences against Commonwealth law and to relay information obtained from the investigation concerning breaches of state law to QPS.

[21] I should mention that the applicant submitted that the (Commonwealth) Privacy Act 1988 prohibited the AFP and NCA from revealing to QPS information obtained about the applicant. Reference was made of s 16 which provides that:

"An agency shall not do an act, or engage in a practice, that breaches an Information Privacy Principle."

Principle 11 which sets the "limits on disclosure of personal information" expressly allows disclosure where it is required or authorised by or under law (ie the Customs Act) or where the information is disclosed for the purposes of enforcement of the criminal law.

[22] The applicant did not attack the constitutional validity of ss 8 and 9 of the AFP Act. The powers conferred on a member of the AFP pursuant to those sections are, obviously, Commonwealth powers. No question therefore arises in this case as to the constitutionality of a Commonwealth officer exercising state powers. The dicta in Hughes has no application. It does not matter that the AFP were exercising powers in cooperation with the QPS who were simultaneously and with respect to the same people exercising state powers of investigation.

[23] The applicant's argument with respect to the NCA has no more substance. Section 11(1) of the National Crime Authority Act 1984 ("NCA Act") provides that the general functions of the NCA are:

"(b) to investigate, otherwise than pursuant to a reference made under s 13 or in accordance with s 14, matters relating to relevant criminal activities;"

Contraventions of the Drugs Misuse Act are relevant criminal activities. By s 11(2) the NCA has special functions where a reference is made under s 13 or in accordance with s 14. In either case the NCA is to investigate the matter referred. Section 13 allows the relevant minister of the Commonwealth to refer a matter to the NCA for investigation. Section 14 permits a Minister of a State, with the approval of the NCA, to refer a matter to it for investigation into an offence against a law of that State.

[24] Section 17 of the NCA Act provides that in performing its functions the NCA shall, so far as is practicable, work in cooperation with law enforcement agencies, amongst whom is numbered QPS. Section 12(1) of the NCA Act provides that where, pursuant to an investigation under s 11(1)(b) the NCA obtains evidence of an offence against a law of a state the NCA must give the evidence to the law enforcement and prosecuting authorities of that state.

[25] I was informed that subsequent to the decision in Hughes doubts have been entertained about the legal efficacy of the procedures established by s 14. Hughes might suggest that a reference in respect of an offence against state law to the NCA, with the concomitant obligation on the NCA to investigate that offence, may amount to the imposition by a State of State responsibilities to a Commonwealth official. If it did the imposition may be unconstitutional and an NCA member who acted pursuant to the reference may be acting beyond powers. I am not sure that, if that were the case, it would necessarily follow that any evidence obtained indicating the commission of a criminal offence would be inadmissible on the trial of the person found to have committed a crime. The problem does not arise here. Despite some initial hesitancy, in the course of the hearing it became clear by the provision of a statement and letter from Ms Florian (exhibits 1 and 5) that there was no reference made with respect to the applicant or his activities by a State minister. The NCA did not exercise any special function pursuant to s 11(2). Rather it performed its general function of investigating a relevant criminal activity.

[26] I accept the submissions of Mr Burmester, who appeared with Mr Witynski for the Commonwealth Attorney-General, that the Commonwealth can authorise a commonwealth body to investigate, on a non-coercive basis, whether criminal offences against the laws of a state have been committed by particular persons. See Lockwood v The Commonwealth [1954] HCA 31; (1954) 90 CLR 177 at 182; Victoria, State of and Commonwealth of Australia v Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25 at 47 ff. Moreover joint Commonwealth-State investigations, not involving the imposition of duties upon Commonwealth officers, are within constitutional power. See R v Duncan; ex parte Australian Iron & Steele Pty Ltd [1983] HCA 29; (1983) 158 CLR 535.

[27] The NCA did not make use of any of the coercive or invasive powers conferred by the NCA Act. No warrants for electronic surveillance were obtained pursuant to that Act. No investigative hearings were conducted, no-one was compelled to produce documents and no search warrants were executed (or obtained). Instead staff of the NCA exercised its general powers to investigate criminal activity against the laws of the Commonwealth and of a state. AFP and QPS members were seconded to the NCA and became members of its staff but the powers they exercised were vested in them respectively by commonwealth or state law.

[28] I accept the submission that there is no constitutional impediment to the NCA's investigation of a state offence by means of its general functions.

[29] There is no substance in the applicant's submissions that the investigation into his conduct by members of the AFP, QPS and NCA were unlawful because the involvement of the AFP and NCA was, and was known to be, unconstitutional because those agencies participated in an inquiry into offences that had no commonwealth interest or element. Each of the AFP, QPS and NCA exercised powers and performed functions lawfully, and constitutionally, entrusted to them. I cannot see that it is objectionable that those powers should have been exercised co-operatively and in conjunction with each other when the occasion for their exercise was an investigation into the same suspects whose activities were thought to contravene both Commonwealth and State laws. No basis has been shown for excluding any of the evidence gathered by the agencies tending to prove that the applicant trafficked in, and supplied, dangerous drugs.

[30] Counsel for the applicant exhibited some coyness about their approach to the future prosecution of the charges against the applicant. It was said that should this application not result in the exclusion of all evidence against the applicant they would seek such an order on the discretionary ground of the type discussed in Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19. The factual basis for such an exclusion was only imperfectly described.

[31] The applicant was arrested on 27 November 1997. The committal hearing occurred in March 2000. There is a suspicion that the applicant is unjustifiably delaying the prosecution of the serious charges laid against him. I direct the applicant within 7 days to provide the Director of Public Prosecutions written notice of any circumstance, to be described with particularity, why his trial should not proceed at the earliest available date. Should the applicant notify the Director that he wishes to argue that some or all of the evidence proposed to be adduced against him should be excluded, I direct that within a further 7 days, he identify the evidence objected to with particularity, and set out clearly and distinctly the basis of his objections.