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[2015] ACTSC 17
Supreme Court of the ACT
2015-02-13
Penfold J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - EVIDENCE - Judicial Discretion to admit or exclude Evidence - application to exclude evidence obtained against accused during cross-border controlled operation conducted under NSW legislation - accused not named in authority to conduct the cross-border controlled operation - whether evidence obtained improperly or in contravention of Australian law or as a consequence of impropriety or contravention of Australian law - effect on authority of failure to vary authority to add suspect identified during operation - whether accused could have been named in authority in respect of alleged offences entirely committed in ACT - authority not invalidated - scope of authority determined by reference to suspects named - whether authority authorised activities in which evidence was obtained against accused - authority did authorise those activities - no impropriety or contravention of Australian law found - application to exclude evidence dismissed.
Crimes (Controlled Operations) Act 2008 (ACT), ss 7, 7(3), 7(4), 25, Dictionary
Evidence Act 2011 (ACT), ss 138, 138(1), 138(3)
Explanatory Statement for Crimes (Controlled Operations) Bill 2008 (ACT)
1. Nhan Van Hoang has been charged in the ACT with one count of trafficking in heroin on 26 April 2013. The evidence against him will largely be given by a New South Wales Police Force undercover operative (a UCO) identified as Jason, who was present at a meeting in the ACT at which Edward Mapiva, using "buy money" provided by Jason, bought a quantity of heroin from Mr Hoang, and by ACT police who apprehended Mr Hoang as he drove away from the meeting and found most of the "buy money' in his possession.
2. Mr Hoang seeks the exclusion from his trial of the evidence obtained as a result of the police operation. That evidence (the challenged evidence) will consist of:
(a) evidence from Jason and other police officers of the events of 26 April 2013 and of earlier occasions on which Mr Mapiva, using money provided by Jason, had obtained heroin from Mr Hoang and handed it over to Jason; and
(b) the "physical" evidence, being the drugs obtained and the "buy money" provided by Jason and recovered from Mr Hoang.
3. Mr Hoang's application is made under s 138 of the Evidence Act 2011 (ACT), which is relevantly as follows:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
must not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(3) Without limiting the matters that the court may take into account under subsection (1), it must take into account -
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Note The International Covenant on Civil and Political Rights is accessible at www.legislation.act.gov.au/updates/humanrights/.
4. To engage s 138, Mr Hoang needs to establish that the challenged evidence was obtained improperly or in contravention of an Australian law, or in consequence of an impropriety or of a contravention of an Australian law.
5. The police operation was conducted in reliance on an authority to conduct a cross-border operation (the Authority) obtained by officers of the NSW Police Force under Part 3A of the Law Enforcement (Controlled Operations) Act 1997 (NSW) (the NSW Act). The operation involved several incidents over nearly two months in which Mr Mapeva, at Jason's request, had obtained heroin in the ACT from Mr Hoang, using money provided by Jason, and subsequently handed it over to Jason in NSW. On the last occasion, Mr Hoang was apprehended by ACT police who found him in possession of marked notes that had been part of the "buy money", and Mr Mapiva was stopped by NSW police who seized the heroin before it could be handed over to Jason.
6. Mr Hoang's argument in support of the exclusion of the challenged evidence was in general terms as follows:
(c) that Jason's conduct during the controlled operation was not authorised (at least in relation to Mr Hoang) by the Authority;
(d) that therefore his conduct (including his provision of "buy money" for the purchase of the heroin and his receipt of the heroin obtained in earlier similar transactions, and possibly his role in driving Mr Mapiva to the ACT to complete the transactions) constituted an impropriety or a contravention of an Australian law;
(e) that the evidence was therefore obtained, improperly or in contravention of an Australian law or, at the least, as a consequence of that contravention or impropriety.
7. The specific argument that Jason's activities were unauthorised and therefore improper or in contravention of an Australian law took some time to emerge, and is somewhat more complicated; it is most conveniently explained against the background of the legal framework in which the controlled operation was conducted and the particular facts of this case.
with respect to the authorisation, conduct and monitoring of certain operations conducted by law enforcement agencies; and for other purposes.
9. It provides for the authorisation of controlled operations that are to be conducted in NSW. It also contains provisions for the authorisation of cross-border controlled operations which build on the provisions relating to operations taking place entirely within NSW.
10. A controlled operation is defined at s 3(1) of the NSW Act as an operation conducted for the purpose of:
(a) obtaining evidence of criminal activity or corrupt conduct, or
(b) arresting a person involved in criminal activity or corrupt conduct, or
(c) frustrating criminal activity or corrupt conduct, or
(d) carrying out an activity that is reasonably necessary to facilitate the achievement of any purpose referred to in paragraph (a), (b) or (c),
being an operation that involves, or may involve, a controlled activity.
11. Under Part 2 of the NSW Act, an authority to conduct a controlled operation is available to officers of several different law enforcement agencies. Relevantly to the current case, the Commissioner of Police of the NSW Police Force may authorise an officer or employee of the Police Force, or a person seconded to that Police Force, to conduct a controlled operation on behalf of the Police Force (s 5).
12. An application to the Commissioner for such an authority must under s 5(2A) provide particulars including, relevantly:
(a) a plan of the proposed operation;
(b) the nature of the criminal activity or corrupt conduct in respect of which the proposed operation is to be conducted; and
(c) the nature of the controlled activity in respect of which an authority is sought.
13. Section 6 of the NSW Act deals with the Commissioner's consideration of an application for authority to conduct a controlled operation.
14. If the authority is granted, it must set out various kinds of information about the operation. Under ss 8(2)(a) and (b), it must identify the operation (by reference to the plan required under s 5(2A)), and the law enforcement officer who is to conduct the operation. It must identify each person who may engage in controlled activities for the purposes of the operation, and state whether or not any such person may operate under an assumed name (s 8(2)(c) and (d)). It must also identify, for each participant in the operation, the nature of the controlled activities in which he or she may engage (s 8(2)(d)).
15. The Act provides certain protections for particular activities engaged in during a controlled operation, and defines a "controlled activity" as an activity that, but for those protections, would be unlawful (s 3(1)). In relation to controlled operations, the protections are provided in s 13, and Pt 3, of the NSW Act. Sections 13 and 16 are as follows:
While it has effect, an authority for a controlled operation:
(a) authorises each law enforcement participant to engage in the controlled activities specified in the authority in respect of the law enforcement participants, and
(b) authorises each civilian participant (if any) to engage in the particular controlled activities (if any) specified in the authority in respect of that participant.
Despite any other Act or law, an activity that is engaged in by a participant in an authorised operation in the course of, and for the purposes of, the operation is not unlawful, and does not constitute an offence or corrupt conduct, so long as it is authorised by, and is engaged in in accordance with, the authority for the operation.
16. That is, an authority to conduct a controlled operation:
(a) authorises police officers and others identified as participants to engage in specified activities that would otherwise be unlawful and conduct in respect of which people would otherwise be criminally liable;
(b) specifies that the activities are not unlawful; and
(c) protects those participants from criminal liability.
17. Section 17 of the NSW Act deals specifically with activities in relation to assumed names, and s 18 protects certain other activities undertaken in connection with controlled or other protected activities. Section 19 protects a variety of people, including those empowered to authorise controlled operations and those participating in them, from civil liability arising out of an authorised operation.
18. Part 3A of the NSW Act deals with cross-border controlled operations. A cross-border controlled operation is:
a controlled operation that is, will be, or is likely to be, conducted in this jurisdiction and in one or more participating jurisdictions.
19. Under s 20A, cross-border controlled operations may be authorised under the general provisions of the NSW Act, subject to certain modifications set out in Pt 3A.
20. One important modification is that, while an authority for a controlled operation is granted by reference to criminal activity or corrupt conduct, authority for a cross-border controlled operation is granted by reference to a "relevant offence", which is defined in s 20B as follows:
(a) an offence against the law of this jurisdiction that carries a maximum penalty of imprisonment for 3 years or more, or
(b) any other offence against the law of this jurisdiction that is prescribed by the regulations.
21. Section 3(1) of the NSW Act defines "this jurisdiction" as New South Wales.
22. There is also a definition in s 20B(1) of "suspect" which, when used as a noun, is defined as:
a person reasonably suspected of having committed or being likely to have committed, or of committing or being likely to be committing, a relevant offence.
23. Section 20E lists further requirements for an authority to conduct a cross-border controlled operation; they apply in addition to the requirements of s 8(2). That section is as follows:
20E Form of authority to conduct cross-border controlled operation
An authority to conduct a cross-border controlled operation must (in addition to the requirements of section 8 (2)):
(a) state the name and rank or position of the chief executive officer, and
(b) state that it authorises the conduct of a cross-border controlled operation, and
(c) state whether it is a formal authority or an urgent authority, and
(d) state the participating jurisdictions in which the controlled conduct is, or is likely, to be engaged in, and
(e) identify (to the extent known) any suspect, and
(f) state the date and time when the authority is granted, and
(i) the nature and quantity of any illicit goods that will be involved in the operation, and
(ii) the route through which those goods will pass in the course of the operation.
24. The effect of an authority to conduct a cross-border controlled operation, and in particular the protections provided to participants, are dealt with in ss 20H and 20K, which are as follows:
20H Effect of authorities to conduct cross-border controlled operations
(1) An authority to conduct a cross-border controlled operation authorises each participant to engage in the activities referred to in section 13 in this jurisdiction and in any participating jurisdiction (subject to any corresponding law of the participating jurisdiction).
(2) The authority to engage in controlled conduct given to a participant in a cross-border controlled operation cannot be delegated to any other person.
20K Protection from criminal responsibility for controlled conduct during authorised operations
(1) Section 16 (Lawfulness of controlled activities) does not apply in relation to an authorised operation that is a cross-border controlled operation.
(2) However, despite any other Act or law of this jurisdiction, a participant who engages in conduct (whether in this jurisdiction or elsewhere) in an authorised operation that is a cross-border controlled operation in the course of, and for the purposes of, the operation, is not, if engaging in that conduct is an offence, criminally responsible for the offence, if:
(a) the conduct is authorised by, and is engaged in in accordance with, the authority for the operation, and
(b) the conduct does not involve the participant's intentionally inducing a person to commit an offence under a law of any jurisdiction or the Commonwealth that the person would not otherwise have intended to commit, and
(c) the conduct does not involve the participant's engaging in any conduct that is likely:
(i) to cause the death of, or serious injury to, any person, or
(ii) to involve the commission of a sexual offence against any person, and
(d) the participant is a civilian participant - he or she acts in accordance with the instructions of a law enforcement officer.
25. In relation to cross-border controlled operations, the protected activity is described as "controlled conduct" (defined in s 3(1) of the NSW Act as "conduct in respect of which, but for section 20K or 20L, a person would be criminally liable").
26. Because authority for a cross-border controlled operation may extend to conduct in a jurisdiction outside NSW, the efficacy of ss 20H, 20K and 20L in protecting "controlled conduct" depends in part on complementary provisions in laws of other jurisdictions, including the ACT.
27. For present purposes, s 25 of the Crimes (Controlled Operations) Act 2008 (ACT) (the ACT Act) is relevant. It is as follows:
The following provisions apply, with any necessary changes, to a corresponding authority under a corresponding law, and to a corresponding authorised operation under that law, as if the corresponding authority were an authority given under section 10:
(a) section 16 (Effect of authority);
(b) section 17 (Defect in authority);
(c) section 18 (Protection from criminal responsibility for controlled conduct during authorised operation);
(d) section 19 (Civil liability not incurred);
(e) section 20 (Effect of s 18 and s 19 on other laws relating to criminal investigation);
(f) section 21 (Effect of being unaware of amendment or cancellation of authority);
(g) section 22 (Protection from criminal responsibility for certain ancillary conduct).
28. The Dictionary to the ACT Act defines "corresponding authority" and "corresponding law":
corresponding authority means an authority authorising a controlled operation (within the meaning of a corresponding law) that is in force under a corresponding law.
corresponding law means a law of another jurisdiction that corresponds to this Act, and includes a law of another jurisdiction that is declared by regulation to correspond to this Act.
29. I am not aware of any regulations made under the ACT Act.
30. There is no attempt in the ACT Act to describe when a law of another jurisdiction corresponds to the ACT Act, but the Explanatory Statement for the Crimes (Controlled Operations) Bill 2008 says:
It is the Government's intention that this clause should be interpreted purposefully [sic] by examining the substance of the foreshadowed Act and corresponding law. It is not intended that mutual recognition would be defeated if corresponding law was not cast in exactly the same terms as the Territory's law.
31. The NSW Act and the ACT Act are not only "not cast in exactly the same terms" as each other, but are different in many significant respects. Relevantly, the ACT Act does not reflect the NSW distinction between "controlled operations" and "cross-border controlled operations", and there are various other more or less significant differences. However, in the absence of any challenge to the application of the ACT Act in relation to activities in the ACT purported to be authorised by a NSW authority under the NSW Act, and having regard to the intention set out in the Explanatory Statement, which presumably became the legislative intention by the enactment of the Bill, I accept for present purposes that the NSW Act is a corresponding law for the purposes of s 25 of the ACT Act, and that s 25 accordingly provides protection to controlled conduct authorised under the NSW Act that takes place in the ACT.
32. Section 7 of the ACT Act was not mentioned in submissions, but seems to be relevant; ss 7(3) and (4) are as follows:
(3) Subject to subsection (4), this Act does not limit a discretion a court has -
(a) to admit or exclude evidence in a proceeding; or
(b) to stay a criminal proceeding in the interests of justice.
(4) However, in deciding whether evidence should be admitted or excluded in a proceeding, the fact that the evidence was obtained as a result of a person engaging in criminal activity is to be disregarded if -
(a) the person was a participant or corresponding participant acting in the course of an authorised operation or corresponding authorised operation; and
(b) the criminal activity was controlled conduct within the meaning of this Act or controlled conduct within the meaning of a corresponding law.
33. In summary, if Jason's activities were undertaken "in the course of" the controlled operation authorised under the NSW Act, and any criminal conduct engaged in by him in the course of that operation was conduct in respect of which he was protected from criminal liability by ss 20K or 20L of the NSW Act or by s 25 of the ACT Act, then s 7(4) of the ACT Act requires me to disregard for present purposes the fact that the evidence against Mr Hoang was obtained as a result of any such criminal conduct by Jason.
34. The key issue in this matter is therefore whether Jason's activities were protected by the Authority obtained under the NSW Act.
35. At paragraph 6, the Authority notes that the operation will be conducted in NSW and the ACT, and identifies the undercover operative (Jason). As well as authorising him to operate under an assumed name, paragraph 6 authorises him to engage in activities of the nature specified in the Authority for the purposes of the controlled operation. Those controlled activities are specified in the Authority as follows:
Negotiations or agreements relating to, or knowingly taking part in any step of, the supply of prohibited drugs involving Sandy Lee MILLER, Thomas WILLIAMS and any other person or persons involved in or likely to be involved in, the commission of the said criminal activities ...
The purchase and possession of prohibited drugs from Sandy Lee MILLER, Thomas WILLIAMS and any other person or persons involved in or likely to be involved in, the commission of the said criminal activities ...
36. At paragraph 7, as well as naming two suspects, Ms Miller and Mr Williams, the Authority gives dates of birth and addresses for each of them. Paragraph 8 sets out, as the nature of the illicit goods that will be involved in the operation, prohibited drugs including but not limited to heroin and cannabis.
37. The Authority was given on 4 March 2013 and was expressed to remain in force until 4 May 2013.
38. The following material was in evidence before me:
(a) the indictment charging Mr Hoang in the ACT:
(b) the prosecution case statement relating to the offence with which Mr Hoang is charged;
(c) the Authority;
(d) a statement made on 25 June 2013 by DSC Jon Horrocks of the AFP, who in 2013 was attached to the Drug Investigation Team;
(e) five statements made by DS Timothy Pieper of the NSW Police Force, on 15 March 2013, 22 March 2013, 5 April 2013, 19 April 2013 and 26 April 2013 respectively (but without attachments mentioned in the statements);
(f) two statements made by "Jason" on 30 April 2013, relating to events on 22 March 2013 and 5 April 2013.
39. As well, DSC Horrocks and DS Pieper gave oral evidence.
40. It seems that Jason was carrying a listening device each time he took part in an activity arranged in reliance on the Authority, and that the transmission from the listening device was monitored by DS Pieper as each activity progressed. DS Pieper's evidence included reports of what was said during some of Jason's dealings with Ms Miller and others.
41. The following facts emerged, unchallenged for present purposes, from the evidence I heard.
42. Jason had established contact with Ms Miller around 4 March 2013, when the Authority was obtained.
43. On 15 March 2013 Jason went to Ms Miller's house in Queanbeyan, where he met Mr Mapiva. He talked to Ms Miller and Mr Mapiva about buying some cannabis.
44. Mr Mapiva had been Ms Miller's partner "on and off" but DS Pieper knew that their relationship was volatile. DS Pieper gave evidence that at that point Mr Mapiva and Ms Miller "had obviously patched up their relationship" and that Mr Mapiva expressed a keen interest in getting involved in dealing in heroin. DS Pieper said that Mr Mapiva "is very excited to be a part of the supply of that heroin process". In questioning from counsel for Mr Hoang, DS Pieper gave evidence as follows:
MR FERNANDEZ: On 15 March 2013 the people who were involved with the undercover operative were Mr Mapiva and Mr Hoang. Is that correct?
DS PIEPER: No. I don't know if it would benefit the court playing a listening device recording, but what has happened is the undercover operative has gone to [the address specified in the Authority], he has met with Sandy Miller. Eddy Mapiva is there. There has been a bit of a guffaw over who the undercover operative is. Sandy Miller, they have a discussion about not only the purchase of some cannabis, this is as a trio with Sandy Miller, Eddy Mapiva and the undercover operative. The undercover operative drives Sandy Miller to an address. She comes out of that address, supplies him with an amount of cannabis. At the same time Eddy Mapiva begins to make inquiries in relation to the purchase of an amount of heroin. When Sandy Miller returns to the [address specified in the Authority] with the undercover operative, Eddy Mapiva says, "Yes, we're right to go" to get the drug. Eddy Mapiva gets in the car with the undercover operative. They drive out in the general direction of Weston. At the same time Sandy Miller is making, or she reports back to Eddy Mapiva that she had made contact with, Big Daddy is the term, and the meeting and the location is passed on, as is the amount and the cost of the drug.
MR FERNANDEZ: The meeting location is the Coppins Crossing bridge? Is that right?
DS PIEPER: Yes. We don't become aware of that, obviously. That information is between Sandy Miller and Eddy Mapiva. He just says, "left, right, left, right, left right" and they go there.
45. Later, Jason and Mr Mapiva returned to Ms Miller's home in Queanbeyan and Jason received two packages, containing heroin and "green vegetable matter", which were subsequently delivered to DS Pieper. At that stage, DS Pieper said, he had no idea who "Big Daddy" was, and was not aware of Mr Hoang as a person involved in drug supply.
46. On 22 March 2013, Jason was again sent to buy drugs. He was to make initial contact with Ms Miller. DS Pieper gave evidence that at that stage "Sandy was the first port of call, Eddy if we - we could cross."
47. However, because he knew that Mr Mapiva's relationship with Ms Miller was quite volatile, DS Pieper said that he could not be sure from time to time that Mr Mapiva would still be involved with Ms Miller's activities.
48. Accordingly, Jason went to Ms Miller's home where he had a conversation with Ms Miller and Mr Mapiva. The details of the conversation are not in evidence before me, but following the conversation, Jason and Mr Mapiva again left the house and drove towards the ACT. During the trip, Jason called Ms Miller's phone number on his mobile phone and then gave the phone to Mr Mapiva, who "instructed the person on the phone to let him know we were 3 or 4 minutes away". Jason dropped Mr Mapiva near a car parked on the road, and then returned to pick him up; in the interim the drugs had been received and paid for by Mr Mapiva. Jason drove Mr Mapiva back to Ms Miller's house. In Ms Miller's presence, Mr Mapiva opened the package obtained from the supplier, removed a small amount of the white powder, and then re-wrapped the package and handed it to Jason. Jason then had a further conversation with Ms Miller about obtaining a large amount of cannabis, at the end of which Ms Miller gave Jason a bag containing green vegetable matter free of charge.
49. By 22 March, DS Pieper said, he was aware of the name of the person supplying heroin to Mr Mapiva.
50. On 5 April 2013, Jason received a text message from Ms Miller's mobile phone "Algood for both today", which he understood to relate to supply of both cannabis and heroin. He went to Ms Miller's home, picked up Mr Mapiva, and drove him into the ACT and to the same area where heroin had previously been handed over. Jason let Mr Mapiva out of the car and drove away, but on this occasion, Jason returned and parked on the opposite side of the road from the supplier's vehicle. Mr Mapiva returned to the car with a package; Jason gave him a further amount of money, and Mr Mapiva went back to the supplier's car and returned with another package. At this point the supplier (described as an Asian male) ran across to Jason's car, leant down and looked at Jason in the car. Jason said "hello" and the supplier nodded, then spoke to Mr Mapiva outside the car.
51. Jason and Mr Mapiva returned to Ms Miller's house where Jason had a conversation with Mr Mapiva and Ms Miller. Again, apparently in Ms Miller's presence (although this is implicit rather than explicit in the relevant statement made by Jason about this occasion), Mr Mapiva removed some of the white powder from one of the packages before handing the packages over to Jason.
52. Almost immediately, Jason drove away from the house again, this time with Ms Miller, who directed him to a location in Canberra where she got out of the car and walked away with money provided by Jason. After some time she returned with three bags of green vegetable matter, which she gave to Jason. Jason then drove Ms Miller back to her home, where he had another conversation with both Ms Miller and Mr Mapiva about the purchase of heroin and cannabis before leaving.
53. By this point, ACT police had become involved in surveillance of the transactions, and Mr Hoang's ACT activities were of interest to them. However, DS Pieper understood from information obtained by Jason that Mr Hoang would not be willing to become engaged in a drug supply operation with anyone new, and there were no plans to target Mr Hoang through the NSW operation.
54. There was another transaction on 19 April 2013. Jason again went to Ms Miller's address in Queanbeyan where he spoke to Mr Mapiva, and Jason then drove Mr Mapiva into the ACT where a package of off-white powder was obtained by Mr Mapiva. Jason and Mr Mapiva returned to Ms Miller's address, and Jason received the package. The evidence before me does not mention any personal involvement of Ms Miller in this transaction, nor her presence at the house. The only explicit link with Ms Miller was that the transaction between Jason and Mr Mapiva began and ended at Ms Miller's home.
55. The evidence before me about the 26 April 2013 transaction (after which Mr Hoang was arrested) contains no specific reference to Ms Miller in relation to the events of the day. However, the evidence does indicate that, as usual, Jason met Mr Mapiva at Ms Miller's address in Queanbeyan, and the case statement indicates that the meeting was arranged in a series of intercepted text messages and phone calls between Mr Hoang and a mobile phone recorded as belonging to Ms Miller.
Absence of reference to Mr Hoang in the Authority
56. Counsel for Mr Hoang initially, and at several later points in the hearing, said that the impropriety or contravention relied on for the purposes of s 138(1) was that after the time at which Mr Hoang's involvement in the drug trafficking was known to the police officers concerned, the Authority "contravened" s 20E of the NSW Act, in that it did not "identify (to the extent known) any suspect", because it did not identify Mr Mapiva and Mr Hoang as suspects.
57. Section 20E is set out at [23] above. Relevantly, it says:
An authority to conduct a cross-border controlled operation must (in addition to the requirements of section 8 (2)):
58. First, I do not consider that it is meaningful for a provision in this form to be read as imposing an obligation on a document such that a document that did not comply with the provision would "contravene" it, because it is not meaningful to suggest that a document can contravene a legislative provision any more than it is meaningful to suggest that a document can commit an offence.
59. It may be easier to make a case that there is some impropriety about a document that does not comply with legislative requirements, but even so, s 138(1) requires that the challenged evidence "was obtained improperly" or "was obtained in consequence of an impropriety" (emphasis added). That is, the impropriety needs to have attached either to the actual obtaining of the evidence, or to have had a causal link with the obtaining of the evidence. Here, on the other hand, any "impropriety" arising from the inadequacy of the Authority may indirectly affect the operation of the Authority, but it has not directly or indirectly led to, or caused, or enabled, the obtaining of the evidence. The evidence has been obtained despite any inadequacy of the Authority, not because of it.
60. The real question on this basis would be whether the absence of information required to be included in the document affects the operation or efficacy of the Authority, either in whole or in part, and whether any such effect on the Authority has in this case resulted in a contravention of a law or any other relevant impropriety in the course of obtaining the challenged evidence. That question is considered below.
61. Section 13A of the NSW Act provides that an authority granted on the basis of an application:
is not invalidated by any procedural defect, other than a defect that affects the substance of the application [or] authority ... in a material particular.
62. I do not consider that this provision is relevant to the current case, because if there is any basis for finding that Mr Hoang was required for any purpose to be named as a suspect in the Authority, then the absence of any mention of Mr Hoang in the Authority would be more than just a "procedural defect" or, if it could be described as a procedural defect, it would be one that affects the substance of the Authority.
63. Counsel's next submission was that after the NSW police officers became aware of Mr Hoang's role in the drug supply, they should have applied for a variation in the Authority, and that the failure to do so deprived the Authority of any effect (thus depriving Jason of any protection in respect of his conduct and rendering it a contravention of law).
64. The NSW Act provides that police officers may apply to vary an authority, including to name an additional suspect. DS Pieper gave evidence that he had experience in seeking variations, that he knew how to fill in the relevant forms and had the necessary information to do so in this case, and that he had twice sought advice from NSW Police legal advisers about whether to seek a variation of the Authority but had been told that it was not necessary in the circumstances of the case.
65. The NSW Act does not, however, include any requirement for a variation to be sought when a new suspect is identified. The variation provisions permit rather than require a variation.
66. In the absence of any provision requiring a variation, counsel fell back on policy arguments to support his position. He said that the fact that a variation could be sought to name an additional suspect meant that a variation ought to be sought if an additional suspect were identified, and that a failure to do so was at least an impropriety sufficient to provide a ground for excluding evidence obtained after the variation could have been, but was not, sought. The policy argument was, in general terms, that because the legislative scheme permitted senior police officers, generally without external scrutiny, to authorise the commission of serious criminal activity, strict compliance with the legislative scheme was required and should be enforced when there was any external scrutiny such as by a court. Furthermore, counsel argued, these policy considerations also required that the legislation should not be read as permitting such a broad description of the controlled activities as is found in the Authority. Specifically, counsel said that it was:
not excusable and not justifiable for the police to be able to rely on a blanket statement in the authority that the authority can cover "any other person or persons involved in or likely to be involved in the commission of the said criminal activities".
(a) that while it was appropriate for the Authority to refer to "the supply of prohibited drugs involving" Ms Miller and Mr Williams, it was not appropriate for the Authority to refer also to "any other person or persons involved in or likely to be involved in, the commission of the said criminal activities";
(b) that the inclusion of this latter phrase in the Authority was accordingly invalid or ineffective; and
(c) that the Act should be interpreted as confining the effect of the Authority to matters directly involving the activities of the named suspects.
68. As to this last submission, the explicit qualification in s 20E(e) of the obligation to identify suspects - they are to be identified "to the extent known" - is in my view a clear indication of a legislative intention not to confine cross-border controlled operations only to the direct activities of individuals who can be named at the start of the operation. Indeed, the provision seems to contemplate cases in which a controlled operation might be desirable even if there is at the beginning no-one who can be named as a suspect in relation to particular criminal conduct; for instance, police may have good reason to believe that drugs are being supplied to students at a particular school without being able initially to identify by name any individual suspected of being involved in that supply. If that is correct, then a description of the scope of an authority by reference to named suspects and to others involved in the drug supply activities in which those suspects are involved would not be unacceptably and invalidly wide.
69. On the other hand, I accept counsel's broader submission that the nature of the controlled operations scheme requires strict compliance with the legislation. However, I consider that counsel has misunderstood the way in which the legislation requires and enforces that strict compliance. That policy aim is in my view not to be achieved by reading assorted unstated qualifications into the plain words of the legislation, but by paying full regard to the specified qualifications found in the legislation.
70. That is, an authority for a cross-border controlled operation protects identified participants in the operation from criminal liability for activities identifiable by reference to the contents of the authority. Activities not authorised by reference to the contents of the authority are not protected. That is how the legislation enforces the limits of the authority, and that is the point at which external scrutiny is useful. If the authority has been granted in accordance with the legislation, then the role of a court is to ensure that protection is not extended to activities not covered by the authority - it is not to give directions about whether some further authority, extending to other activities, could or should have been sought or granted.
71. In the course of argument, counsel for Mr Hoang abandoned the submission that a failure to vary the Authority to include the name of a new suspect invalidated the authority to the extent that it operated in relation to the suspects who were named in the application, and a submission that the non-involvement of the other suspect, Thomas Williams, in Jason's dealings with Ms Miller and Mr Mapiva rendered the Authority ineffective.
72. Counsel instead narrowed his submission to the proposition that, absent the name of any new suspect, the Authority remained limited to activities "that can be directly traced back to one of the named" suspects. I agree with counsel's general submission that the scope of an authority is limited by reference to the suspects named in the authority, but the exact nature of the limitation requires further consideration.
73. On the basis of counsel's concession that the Authority is not rendered wholly ineffective by the failure to add Mr Hoang to the list of suspects, the remaining question is whether the relevant activities of Jason (ie those that provided the evidence against Mr Hoang) were, irrespective of Mr Hoang's involvement, authorised by the terms of the Authority as it stood.
74. The Authority relevantly authorised Jason to engage, for the purposes of the controlled operation, in controlled activities of the following kinds, being:
negotiations or agreements relating to, or knowingly taking part in any step of, the supply of prohibited drugs involving Sandy Lee MILLER, Thomas WILLIAMS and any other person or persons involved in or likely to be involved in, the commission of the said criminal activities ...
The purchase and possession of prohibited drugs from Sandy Lee MILLER, Thomas WILLIAMS and any other person or persons involved in or likely to be involved in, the commission of the said criminal activities ...
75. Jason had no direct dealings with Mr Hoang except on 5 April 2013, (as described at [50] above). The question, in my view, is whether Jason's activities (consisting of negotiating to obtain from Mr Mapiva heroin that would, with Jason acting as Mr Mapiva's driver, be collected by Mr Mapiva from a supplier, who happened to be Mr Hoang, and handed over to Jason) were within the scope of the Authority. If they were, then the fact that the supplier was able to be identified and later arrested and charged by ACT police did not put Jason's activities outside the scope of the Authority as it stood, and it did not leave them unprotected and therefore unlawful.
76. This in turn depends on whether Jason's dealings with Mr Mapiva were negotiations or agreements related to, or amounted to any step of, "the supply of prohibited drugs involving Sandy Lee Miller, ... and any other person or persons involved in or likely to be involved in, the commission of the said criminal activities".
78. Mr Mapiva, having apparently made the first contact with a possible supplier, travelled to the place where the drugs were to be supplied while Ms Miller was making further contact with the supplier and passing on the details of the meeting location, and the amount and cost of the drugs.
79. I am satisfied that on 15 March, Jason's actions in pursuing the supply of heroin from Ms Miller and Mr Mapiva fell squarely within the description of "negotiations or agreements related to, or ... any step of, 'the supply of prohibited drugs involving Sandy Lee Miller'".
80. In my view, Jason's actions on 5 April, as described at [50] to [52] above, fall within the description of "negotiations or agreements related to, or ... any step of, the supply of prohibited drugs involving Sandy Lee Miller'". Ms Miller was clearly "involved" on that day, whether or not she was directly negotiating with Mr Hoang.
81. As noted at [55] and [55] above, the only link between Ms Miller and the operations on 19 April and 26 April that is explicit in the evidence before me is that in each case, Jason met Mr Mapiva at Ms Miller's home, that on 19 April, he and Mr Mapiva returned to Ms Miller's home where Mr Mapiva handed over the heroin obtained from Mr Hoang, and that on 26 April there were several telephone contacts with Mr Hoang for which Ms Miller's mobile phone was used.
82. I am not persuaded on the balance of probabilities that any of Jason's activities in relation to any of the transactions between Mr Mapiva and Mr Hoang fell outside the scope of the Authority, in that they could not be described as "negotiations or agreements related to, or ... any step of, the supply of prohibited drugs involving Sandy Lee Miller". That conclusion relies in particular on the evidence:
(a) that all the transactions were initiated by visits by Jason to Ms Miller's home in Queanbeyan and discussions with Ms Miller and Mr Mapiva (for the earlier transactions) and with Mr Mapiva (for the later ones);
(b) that except for the 26 April transaction, which was terminated (after Mr Mapiva received the drugs) by NSW and ACT police respectively stopping Mr Mapiva and Mr Hoang, all the transactions concluded in Ms Miller's home;
(c) that Ms Miller's mobile phone was used in several of the transactions including that on 26 April 2013;
(d) that Mr Mapiva was apparently Ms Miller's live-in partner, but that Mr Mapiva's involvement seemed to depend on the maintenance of his relationship with Ms Miller and that there was no guarantee that would continue.
(a) that Jason's activities undertaken in reliance on the Authority were not protected by the Authority and therefore by the NSW Act and the ACT Act, and were therefore improper or involved a contravention of an Australian law; or
(b) that any evidence obtained by means of or as a result of those activities was obtained in consequence of any such impropriety or contravention.
84. Although it turned out to be irrelevant to my conclusions in this matter, I mention one issue that arose in the course of argument, namely whether Mr Hoang ever became a "suspect" under the NSW Act such that he could have been added to the Authority by a variation.
85. I note first that although DS Pieper in his evidence agreed several times that Mr Hoang had become a suspect some time before 26 April 2013, that agreement was not given by reference to any consideration of the definition of "suspect" in the NSW Act.
86. As already mentioned (at [20] to [22] above, a "suspect" is a person reasonably suspected in relation to the commission of a relevant offence, and a "relevant offence" is an offence against the law of NSW. On the face of it, Mr Hoang's conduct in the ACT would not seem to be an offence against the law of NSW.
87. Counsel for Mr Hoang pointed to Pt 1A of the Crimes Act 1900 (NSW) (the NSW Crimes Act), which extends the application of a law of NSW beyond the territorial limits of NSW if there is a relevant nexus between NSW and the offence (s 10A of the NSW Crimes Act).
88. Counsel said that under Pt 1A, Mr Hoang could have been prosecuted for trafficking drugs, despite all the relevant conduct having taken place in the ACT, on the basis that:
(a) since the drugs supplied by Mr Hoang were on their way to Queanbeyan in NSW, the supply would have had "an effect in" NSW (NSW Crimes Act, s 10C(2)(b)) as defined in s 10B(3) of that Act;
(b) therefore a geographical nexus existed between NSW and the offence (NSW Crimes Act, s 10C(2)); and
(c) therefore the offence constituted by that supply was an offence against the law of NSW (NSW Crimes Act, s 10C(1)).
89. On this basis, he said, Mr Hoang was a "suspect" for the purposes of the NSW Act because the offence which he was suspected of having committed or being likely to commit in the ACT was an offence against the law of NSW for the purposes of the definitions of "relevant offence" and "suspect" in s 20B(1) of that Act.
90. I accept this argument to the extent of accepting that under Pt 1A of the NSW Crimes Act, Mr Hoang's alleged offences may, depending on the particular facts found, have been offences against the law of NSW. What I am not so sure about is whether the provisions of the NSW Act, having regard in particular to the express limitation on the scope for approval of cross-border controlled operations by reference to offences against "the law of this jurisdiction", are intended to confer on NSW police authorities a power to approve cross-border controlled operations that do not target any activities carried out in NSW but target exclusively activities carried out in another jurisdiction that could only be prosecuted in NSW in reliance on the extended jurisdiction provided by Pt 1A of the NSW Crimes Act. For instance, should the NSW Act be read as intended to authorise not only a genuinely "cross-border" operation such as the one that has produced evidence against Mr Hoang, but even a "cross-border" operation under which the only people identified as suspects are people engaged in drug-supply activity that is confined to the ACT and the only connection with NSW is the general likelihood that drugs supplied in large quantities in the ACT were likely to find their way across the border into NSW?
91. Fortunately, as noted above, I have not needed to reach any conclusion about the scope of the definition of "suspect" in the NSW Act in order to decide this application.
92. In case I am wrong in concluding that Jason's activities were protected by the Authority, I shall mention briefly the issues that, if the challenged evidence had been found to have been obtained as a result of unlawful activity by Jason, would be relevant in determining whether that evidence should nevertheless have been admitted in Mr Hoang's trial. The question that would, in that hypothetical situation, need to be answered under s 138(1) of the Evidence Act is whether the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
93. In determining the answer to that question, the matters listed in s 138(3) of the Evidence Act would need to be taken into account.
94. The probative value of Jason's evidence, and the rest of the challenged evidence, appears likely to be very high. No intended challenge to Jason's credibility was mentioned before me.
(b) the importance of the evidence in the proceeding
95. The challenged evidence is crucial in the proceeding - without it, the Crown will have no case.
96. The offence with which Mr Hoang is charged, trafficking in heroin, is a serious offence. It carries a maximum penalty including 10 years imprisonment, and has the potential to endanger many lives.
(d) the gravity of the impropriety or contravention
97. The contravention or impropriety that might have been found would have been Jason's participation in criminal activities not protected by the Authority. Those activities, in general terms, procuring the trafficking of heroin, would have been very serious had they not been authorised by the Authority.
(e) whether the impropriety or contravention was deliberate or reckless
98. I am satisfied on the evidence before me that the NSW police officers involved in the cross-border controlled operation, and DS Pieper in particular, were well aware of the need to act only within the scope of the relevant authority (including because this was the only way to ensure that UCOs were protected from criminal liability), and that DS Pieper twice sought legal advice about whether a variation of the Authority should be sought. DS Pieper accepted in evidence that the ultimate decision whether to seek a variation was his, but if it had been necessary to make a finding, I would have found that, if he did made the wrong decision, it was despite his best efforts, without any intention to act beyond the scope of the Authority, and without being reckless as to the risk of doing so.
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights
99. Counsel for Mr Hoang did not identify any human right to which the claimed impropriety or contravention could be said to be contrary or with which it could be said to be inconsistent.
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention
100. I understand that no disciplinary or other action is contemplated against any of the "participants" whose activities were authorised by the Authority. This is unsurprising given that the police do not concede any impropriety or contravention of law.
101. Counsel for Mr Hoang said that the absence of any proposal for disciplinary action against any of the participants in the controlled operation makes it more important to send a message about the need to act within the scope of an authority by excluding the evidence in this case. I accept the general implication of counsel's submission that if the relevant authorities do not send the appropriate messages to operational police officers and others about the importance of avoiding improprieties or contraventions of law, the need for the court to do so may carry particular weight in making a decision under s 138.
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law
102. The prosecution conceded that if the NSW police had believed it was necessary, it would have been a simple administrative matter to seek a variation of the Authority to include Mr Hoang. Whether such a variation could have been made is subject to the issues raised at [84] to [90] above about whether Mr Hoang could in fact have been named in the Authority as a suspect.
103. If an impropriety or contravention of the kind claimed had been established, I would have concluded that in the particular circumstances of this case, the desirability of admitting the evidence obtained through the controlled operation outweighs the undesirability of admitting evidence that has been obtained in the way in which that evidence was obtained. That conclusion would have been based on an assessment that any such impropriety or contravention had emerged to some extent from the complexity of the legislative scheme, had been unintentional, and had come about despite the genuine efforts of DS Pieper to ensure that there was no impropriety or contravention, but would also have taken account of the gravity of the offence charged and the crucial nature of the challenged evidence in that prosecution.
104. The applicant has not established any impropriety or contravention of law in the conduct of the controlled operation that has produced the evidence against Mr Hoang.
I certify that the preceding one hundred and five [105] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.
R
Hoang [2015] ACTSC 17