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[2001] QSC 411
defendant. Application to exclude the evidence contained in the schedule (exhibit 1) as it relates to illegal activity on the part of a member of the Queensland Police Service at the trial of Frederick John...
Ellis sought to exclude evidence from an undercover police operation where a covert operative bought illegal drugs from him. The court applied the well-known public-policy balancing test (Bunning v Cross) and considered whether police illegality or any unfairness required exclusion. Finding no unrestrained illegality (unlike Operation Trident / D'Arrigo), no victim harm, adequate QPS oversight and that the evidence was cogent and crucial to prosecuting large-scale drug trafficking, White J held the public interest in conviction outweighed reasons for exclusion and refused the application to exclude the evidence.
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1,627 words · generated 24/08/2026
Operation Eastlake was a Queensland Police Service (QPS) undercover drug investigation begun in about April 1997 targeting Frederick John Ellis (and co-accused Ronald Favaloro). A covert police operative (CPO, using the name 'Jeffries') was introduced to Ellis by a National Crime Authority informant. The CPO made multiple purchases of heroin and methylamphetamine from Ellis (and/or Favaloro). Meetings and buys were tape-recorded and photographed; the CPO handed the drugs to his controller after buys, they were checked and sent to the Government Chemical Laboratory for analysis and then lodged at QPS exhibits ([8]–[9]).
No linked legislation citations have been extracted yet.
Ellis applied under s 592A(2)(e) of the Criminal Code to exclude the evidence of those purchases on the basis that it was tainted by illegality, namely, the CPO's purchase and possession of illegal drugs. The application argued the evidence should be excluded for illegality or impropriety, invoking principles in Bunning v Cross, and relied on D'Arrigo as an example where evidence was excluded because of police-enabled unrestrained illegality ([3], [5], [15]–[18]).
White J heard the application on 29–30 October 2001 and delivered judgment on 2 November 2001. Favaloro, the co-accused, undertook to be bound by the ruling so it applied to both defendants ([4]). The principal contested issues were the tests and their application: whether the illegal acts of the CPO compelled exclusion under public-policy principles, and whether any understanding or immunity arrangements with prosecuting authorities affected admissibility ([12], [20], [24]).
The court refused the application and ordered the evidence admitted: "The application ... is refused." ([27]).
Two legal axes frame the decision. First, the public-policy balancing test from Bunning v Cross requires weighing the public interest in convicting offenders against the public interest in not sanctioning or encouraging unlawful conduct by law enforcement ([7]). Second, the unfairness principle from R v Ireland asks whether admission would be unfair to the accused ([7]).
White J accepted that the CPO's purchase and possession of prohibited drugs were unlawful under the Drugs Misuse Act; that is not disputed. The real question was whether that illegality was of a kind or degree that the court should exclude the related evidence.
White J distinguished Operation Eastlake from the paradigmatic case of unrestrained police illegality, Operation Trident as considered in D'Arrigo. D'Arrigo involved police-assisted stealing of vehicles and an invalid indemnity given to an informant; the Court of Criminal Appeal in D'Arrigo found the evidence was obtained "at too high a price" and excluded it because of the severe public-policy objections, the misconduct caused real victims and involved open executive indulgence of criminality ([15]–[18]).
By contrast, here White J emphasised several limiting facts: no innocent third-party victims were exploited by the police activity; the drugs bought were promptly taken out of circulation by police (photographed, analysed and kept in exhibits), removing ongoing public harm; the evidence was cogent and reliable (and included a recorded discussion of a major heroin transaction, exhibit 3) ([9], [6], [25]). He also noted the QPS had put in place supervisory committees and guidelines (the Trident Inquiry recommendations were implemented in practice by QPS guideline systems) so that covert operations had oversight and were not "unrestrained" ([22]–[24]).
White J addressed the question whether there had been any arrangement amounting to immunity from prosecution in respect of police who committed unlawful acts in controlled operations. He referred to the Trident Inquiry's statement that indemnities in futuro were inappropriate and to authority that executive power cannot validly grant immunity for future offences (D'Arrigo / Stead) ([16]–[17], [20]). On the facts, there was no evidence of an improper immunity arrangement: QPS practice envisaged that police would not be charged only where they adhered to a strictly controlled regime; the control structures and oversight reduced the policy concern ([20], [23]–[24]).
Weighing the factors, White J concluded the public interest strongly favours admission in the context of serious trafficking involving large quantities; exclusion would produce no public benefit and might frustrate prosecution of organised drug crime. He therefore exercised the judicial discretion under s 592A to refuse exclusion ([25]–[27]).
Before this judgment, the relevant authorities were:
White J accepted the continuing force of Bunning but reiterated that D'Arrigo's result turned critically on the extreme facts (unrestrained illegality, real innocent victims, improper indemnity). On the facts of Eastlake, that extreme rationale did not apply. The judgment thus sits within a line of authorities recognising a fact-sensitive balancing exercise: where police illegality is limited, controlled and supervised and there are no victims, the public interest in conviction can outweigh the reasons for exclusion.
This judgment also acknowledges the legislative and administrative evolution: in 1997 Queensland had no statutory controlled-operations regime (the Police Powers and Responsibilities Act 2000 post-dates this operation), and the Crimes Act s 15 (Cth) offered limited Commonwealth controlled-operations regimes for importation matters. White J treats the existence of QPS guidelines and oversight as material to the balancing problem ([13], [22]–[24]).
Paragraph [7] (Bunning v Cross quotation): The court says you must weigh two competing public-policy aims: (1) convicting criminals, and (2) not giving approval to law-enforcement acting unlawfully. Plain English: judges must balance bringing offenders to justice against preventing the courts from encouraging police to break the law.
Paragraphs [15]–[18] (D'Arrigo discussion): D'Arrigo condemned a police operation that facilitated thefts, used an invalid indemnity and produced victims; that evidence was excluded. Plain English: where police involvement is broad, reckless, harms citizens and involves improper executive immunity, evidence may be excluded.
Paragraph [22]–[24] (Trident Report and QPS controls): The Trident Report accepted undercover operations are necessary but must be controlled; QPS introduced supervisory structures and guidelines. Plain English: undercover operations are legitimate if properly supervised and controlled.
Paragraph [25]–[26]: White J contrasts Eastlake with Trident: Eastlake's operations did not involve exploitation of third parties, the drugs were removed, evidence was compelling, and public interest favoured admission. Plain English: here the wrongdoing by the officer was limited and necessary to catch serious traffickers, so the balance favours using that evidence.
Paragraph [27] (disposition): The exclusion application is refused. Plain English: the challenged evidence will be admitted at trial.
This decision is most directly engaged where:
Conversely, where police acts are broad, involve facilitating theft or victim harm, or involve executive indemnities for future crimes, D'Arrigo-style exclusionary concerns are triggered.
White J explicitly situates his decision among competing authorities: he applies Bunning, considers D'Arrigo and Stead, and follows the line that admits supervised, controlled undercover evidence where there is no unrestrained illegality ([7], [15]–[19], [22]–[26]). The judgment signals that later legislative developments (Police Powers and Responsibilities Act 2000) and formal controlled-operations regulation would further render such evidence admissible when proper procedures are followed ([13], [22]–[24]). The judgment therefore is consistent with a trend of allowing carefully supervised undercover activity, while reserving exclusion for extreme misconduct.
Practitioners should expect courts to continue to apply the Bunning balancing test and to scrutinise the degree of police illegality, the presence of victims, the existence and adherence to supervision and guidelines, and the overall cogency of the evidence.
This analysis has summarised and explained White J's reasoning in R v Ellis [2001] QSC 411, grounded in the judgment text and its paragraph references. This is general legal information, not legal advice. I can make mistakes. Before you act on this, rely on it, or use any draft based on it, get a qualified Australian lawyer to check it.
The Director of Public Prosecutions (Queensland) for the respondent Crown
[1] Frederick John Ellis and Ronald Angelo Favaloro are jointly charged that between
8 April 1997 and 28 November 1997 at Brisbane they carried on the business of unlawfully trafficking in the dangerous drugs heroin and methylamphetamine.
[2] The indictment contains four counts of jointly supplying heroin; seven counts of supplying a dangerous drug against Ellis alone; two counts of supplying a dangerous drug against Favaloro alone; one count of possession of heroin against Favaloro; and one count of possession of a car and mobile phone used in connection with trafficking in dangerous drugs against Favaloro.
[3] By application brought pursuant to s 592A(2)(e) of the Criminal Code Ellis seeks to have certain evidence, obtained by means of a police undercover operation excluded from the trial on the ground that it is tainted by illegality similar to the basis on which evidence was excluded in R v D'Arrigo [1994] 1 Qd R 603.
[4] Favaloro has been arraigned and pleaded not guilty to the counts on the indictment which concern him. His trial has thus commenced, s 594(3). He filed an application dated 23 October 2001 in similar terms to that of Ellis dated
24 August 2001. There was some concern as to whether an application pursuant to s 592A could be heard and determined in respect of Favaloro given that procedures under that section are described as pre-trial procedures and his trial has now commenced. Even though a trial may be adjourned, and without considering the sufficiency of any reason for doing so, the consequence may well be that I would be the trial judge and in the absence of any arrangement to that effect, this may cause difficulty. These considerations became academic because Mr A Donaldson, counsel for Favaloro, undertook on behalf of his client to be bound by any ruling about the admissibility of this body of evidence in Ellis'application.
[5] The original application sought a wide range of orders and directions but
Mr Feeney, in effect, abandoned that application and sought an order that
"the evidence relating to the supply and purchase of the drugs set out in the schedule [exhibit 1] be excluded on the ground of illegality and/or impropriety."
The schedule is a document in a form familiar in drug sentencing matters where there are a number of supply transactions. It sets out in columns the counts on the indictment, the date and place of the offending activity, a description of the offence, the particulars of continuity and the result of analysis of the drugs obtained.
[6] Counsel were content to proceed on the basis that the schedule gave a sufficient description of the evidence sought to be excluded. Exhibit 3 is a transcript of a covert tape recording of conversations between Ellis, Favaloro and the covert police operative ("CPO") which took place in a restaurant on 12 November 1997, not long before the closure of the operation, in which there was discussion about the supply of nine pounds of heroin for just under $1 million.
[7] There is no criticism made of the personal conduct of the CPO vis-à-vis Ellis or that the admission of the impugned evidence would be unfair to him in the sense used in R v Ireland [1970] HCA 21; (1970) 126 CLR 321 at 334. The argument is concerned only with the well known principle expressed in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 per Stephen and Aickin JJ at 74 which involves
"... the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law."
The unlawful conduct here is the purchase and possession of dangerous drugs contrary to the provisions of the Drugs Misuse Act 1986 (Qld) by the CPO.
[8] In about April 1997 Ellis became the subject of investigation conducted by the Queensland Police Service ("QPS") which suspected him of involvement in serious drug dealings. The investigation was codenamed "Operation Eastlake". A CPO who used the name Jeffries was introduced to Ellis by a National Crime Authority
("NCA") registered informant. Their meetings and conversations were tape recorded and, on occasion, monitored and photographed by a police mobile surveillance team. These conversations entailed discussions about the supply of dangerous drugs by Ellis and/or Favaloro to the CPO and their meetings regularly involved the purchase of dangerous drugs from one or other or both of the accused. The meetings often took place in restaurants and hotels over a meal.
[9] Shortly after each buy the CPO met his controller, handed over the drugs where they were unwrapped, photographed, checked for fingerprints, despatched to the Government Chemical Laboratory for analysis and then lodged at the QPS Central Exhibit Facility.
[10] Operation Eastlake was one of about a dozen drug investigations operating in Queensland at that time. Chief Superintendent Kerry Dunne, then a Detective Superintendent in charge of the Queensland Drug Investigative Group, gave evidence in this application. On 7 May 1997 he arranged a meeting with representatives of the NCA, the Australian Federal Police ("AFP") and members of the QPS, largely, it would seem, because there was "intelligence from Ellis that the heroin was being brought into Australia in the passenger cabin of an [commercial] aircraft", exhibit 2. These Federal agencies agreed to participate in Operation Eastlake with the QPS as lead agency.
[11] This application does not concern the involvement of the NCA or AFP although it was the subject of an unsuccessful application before Chesterman J to exclude
evidence on the ground that it had been illegally obtained because members of the NCA and AFP concerned in Operation Eastlake had acted beyond the limits of their constitutional powers, (R v Ellis [2001] QSC 270).
[12] Mr Feeney was concerned to explore with Chief Superintendent Dunne the supervision of the operation and what the understanding of the QPS was about the vulnerability of its members to prosecution for illegal conduct, namely, the purchase and possession of dangerous drugs contrary to the provisions of the Drugs Misuse Act 1986, and whether there was any offer of or understanding about immunity from prosecution by the Director of Prosecutions (or Public Prosecutions, as the Office became known).
[13] In 1997 there was no legislative protection for members of the QPS to engage in unlawful activity in order to investigate serious offences and/or organised crime as is now provided for in Chapter 5 of the Police Powers and Responsibilities Act
2000 (Qld). Such a regime of controlled operations for obtaining evidence about certain offences relating to narcotic goods was then contained in the Crimes Act
1914 (Cth), s 15. Indeed there was discussion on 20 May 1997 during a joint briefing on the progress of Operation Eastlake as to whether these provisions of the Crimes Act applied at that point in the investigation and it was concluded that they might do so when an importation issue arose.
[14] The approach of the QPS to drug operations in 1997 involving CPOs and drug purchases from targeted persons was governed to a large extent by the recommendations of the Honourable W J Carter QC in his report of March 1993, arising out of the Royal Commission of Inquiry into Operation Trident. By the time of the Inquiry the QPS had started to address a great many of the concerns raised when the facts and circumstances of Operation Trident became more widely known in the QPS. The Inquiry was established to investigate an operation conducted by the QPS set up to deal with organised car theft in the Beenleigh/Gold Coast district. It involved police infiltrating the ranks of persons engaged in stealing cars for the purpose of resale. In the course of Operation Trident some 68 motor vehicles were stolen from unknowing members of the public who thereby suffered loss with the consent and/or active participation of members of the QPS.
[15] In December 1991 the Court of Criminal Appeal handed down its judgment in D'Arrigo. The court quashed the conviction which had been recorded in the District Court when D'Arrigo had been found guilty of the unlawful possession of a motor vehicle with intent. The vehicle was one which had been stolen in the course of Operation Trident. The prosecution case depended on the evidence of one Riesenweber, a police informant, who had been given an indemnity in the name of the then Attorney-General against prosecution in respect of future illegal conduct done for the purpose of assisting police in Operation Trident. In their judgment each member of the court made an adverse finding concerning the indemnity from prosecution which had been granted to Riesenweber and the "unrestrained illegality" of the way in which the evidence was collected.
[16] The court concluded that the executive authority of the State was not enabled by the prerogative power to grant an indemnity against prosecution for future misconduct, Macrossan CJ at 604, de Jersey J at 609 and Dowsett J at 610. In R v Stead [1994]
1 Qd R 665 in respect of the same indemnity the Court of Appeal put this beyond question at 668,
"The common law recognised the existence of a power to pardon as an aspect of the Royal prerogative and one that was capable of being delegated. What was disputed over a long period was the wider claim by the Crown to exercise a power of pardoning an offence before its commission. It implied an authority in the Crown to dispense with the application of the law to a particular individual or to suspend the operation of laws in general. Attempts to invoke such a power led directly to the Revolution of 1688 and the adoption of the Declaration of Right. Articles 1 and 2 condemned as "illegal" the purported exercise of the power of suspending or dispensing with laws, 'as it hath been assumed and exercised of late'."
[17] Relating that fundamental principle to the present day the court held at 669
"It follows, that while the Governor acting on the advice of the Premier has power to grant a pardon in respect of a past offence, neither the Governor, nor any delegate from him or her, has the power to suspend or dispense with the laws or their execution, or with any statute: cf. Fitzgerald v Muldoon [1976] 2 NZLR 615, 662-
623. The attempt to do so by what purported to be an indemnity against prosecution for future offences granted by the former Attorney-General in favour of Reisenweber on 5 October 1989 therefore was, to use the words in ss 1 and 2 of the Bill of Rights,
"illegal" and "void and of no effect". Hence the indemnity was incapable of prevailing against the provisions of section 7 of the Criminal Code making a person criminally responsible for an offence committed by another that was counselled or procured or assisted by that person."
[18] As to the admissibility of the evidence obtained by Reisenweber, the court in D'Arrigo condemned the direct and indirect involvement by police in assisting criminals to steal and illegally dispose of motor vehicles, the property of innocent citizens whose loss could never be adequately recompensed. Macrossan CJ observed at 605
"The competing considerations were, on the one hand, the interests of the State in the conviction and punishment of offenders and, on the other hand, the further interests of the State in maintaining the integrity of the criminal processes and upholding observance of the law by the State's instrumentalities. If the courts were prepared to overlook an unrestrained illegality of this kind without offering any discouragement to it, at what point would it ever be appropriate to demur and offer objection?"
As a consequence the court held that Reisenweber's evidence was obtained "at too high a price" and ought to have been excluded.
[19] The Court of Appeal (Davies, Pincus and McPherson JJA) took a different view about similar evidence in Stead. The appellant was another person implicated in car
thefts some of which were stolen under the auspices of Operation Trident while others were not. The court said at 673
"Without expressing a concluded view on the correctness of the decision in D'Arrigo, we are of opinion that the evidence of Reisenweber was rightly admitted at the trial in this case."
[20] It is the approach of the Court of Criminal Appeal in D'Arrigo which Mr Feeney urges, submitting that "the closeness of the connection between the illegality and the obtaining of the evidence" would dictate the exclusion of the evidence, per Dowsett J in D'Arrigo at 611. Mr Feeney further submitted that the present position with undercover drug operations and Operation Eastlake in particular is founded upon a tacit understanding with the Director of Public Prosecutions that there will be no prosecution brought against members of the QPS engaged in illegal activity. The Trident Inquiry Report, accepting that an indemnity in futuro was invalid, noted at p 170 that it was inappropriate that such immunity be given tacitly. The evidence of Chief Superintendent Dunne indicated that while members of the QPS could expect not to be charged with offences, if they engaged in illegal conduct while carrying out QPS orders in a controlled operation, that would only be so if there was adherence to a strictly controlled official regime of supervision.
[21] In the absence of any legislative permission to engage in "controlled" illegal activity the QPS could have desisted altogether from engaging in undercover operations which would involve illegal conduct by QPS members. Or, as Mr Feeney submitted, the QPS could make use of legislatively authorised modern investigative tools such as telephone interceptions, installation of covert listening devices and cameras, and outside surveillance.
[22] The Trident Inquiry Report recognised, as had many judicial decisions and writings from other jurisdictions prior thereto that certain forms of criminal activity defy detection by the use of the conventional methods of criminal investigation and that the undercover operation is a legitimate investigative policing tool. The Report noted at p 129,
"This form of crime is often intensely secretive in character; rarely will the offender acknowledge his guilty participation; so often the
"business" of the criminals is conducted behind a facade of commercial respectability at the same time making use of legal forms and the skill of the law's practitioners."
As a consequence of research and the evidence presented to the Inquiry Mr Carter concluded at p 151 that there was a broadly based acceptance of the practise of undercover operations.
"The issue therefore is not whether the covert operation should be used, but whether, and if so to what extent, there is a need to exercise control over the establishment and control of operations, and, in that event, the degree and form of control."
This was seen as the key to acceptance, in a public policy sense, of undercover police operations which were so starkly absent in Operation Trident. A limited
legislative regime was recommended but this was not implemented until the Police
Powers and Responsibilities Act 2000.
[23] By the time of the Inquiry, supervising committees had been established by the QPS for covert operations. Chief Superintendent Dunne said that the control committee had the benefit of the advice of an experienced lawyer to overview the way in which evidence was obtained, so as not to prejudice the successful prosecution of targets which had been recommended by the Trident Inquiry. The Report commented favourably on the polices and procedures then developed by the QPS in respect of covert operations, covert police operatives and informants, p 172.
[24] The QPS guidelines which governed Operation Eastlake had been formulated from the recommendations discussed in the Trident Inquiry Report and expanded further over time. They included overview by a management committee, the Ethical Standards Committee and, if necessary, the Criminal Justice Committee. Chief Superintendent Dunne recalled a meeting with Mr R Miller QC, the then Director of Prosecutions in either 1995 or 1996 in respect of a concern about the conduct of a particular CPO at which Mr Miller indicated that it was for the Commissioner of Police to decide whether proceedings were to be commenced against any police officer arising out of alleged unlawful conduct in the course of undercover police operations. He expressed satisfaction with the guidelines. Chief Superintendent Dunne was aware of relevant legal decisions in Australia and knew that the courts regularly admitted into evidence at the trial of persons charged with Drugs Misuse Act offences the evidence of covert undercover police operatives who had purchased drugs from the accused.
[25] There is no suggestion of conduct in Operation Eastlake of the kind which led to condemnation and exclusion of evidence in, for example, D'Arrigo, Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 or the evidence of importation in Marriott v The Queen (1995) 126 FLR 119. There were no victims of the unlawful conduct which had been such a seriously aggravating feature in Operation Trident. Here the drugs were purchased and immediately taken out of circulation. The evidence which is proposed to be tendered against Ellis is cogent and reliable. Mr Feeney submitted that the contents of exhibit 3 would raise a strong prima facie case of trafficking against the accused without the necessity of admitting evidence in which the CPO engaged in the unlawful activity of purchasing and possessing the dangerous drugs. But if the evidence is otherwise admissible there is no compelling argument for depriving the prosecution of its best evidence. Similarly, if illegally obtained evidence is excluded and a criminal thereby escapes punishment, Ridgeway requires that that consequence be borne by the community.
[26] There is a significant public interest in securing the detection and conviction of persons who engage in trafficking in dangerous drugs particularly when that involves large quantities. There is no doubt as to the prevalence of drug dealing and the difficulty of detecting organised crime associated with the importation, production and distribution of prohibited drugs is well known. As the court observed in Stead, it is difficult to see any public benefit in excluding the impugned evidence in this case. The public interest very much favours its admission.
[27] The application to exclude the evidence contained in the schedule (exhibit 1) as it relates to illegal activity on the part of a member of the Queensland Police Service
at the trial of Frederick John Ellis for the offences set out in the indictment presented 17 April 2000 is refused.
R
Ellis
(1978) 141 CLR 54
(1995) 126 FLR 119
(1970) 126 CLR 321
(1995) 184 CLR 19
Application to exclude the evidence contained in the schedule (exhibit 1) as it relates to illegal activity on the part of a member of the Queensland Police Service at the trial of Frederick John Ellis is refused ([27]).