• Controlled Substances Act 1984 (SA) s32(1)(e), s32(3), s52;
• Narcotic and Psychotropic Drugs Act 1934 (SA) (repealed) s5(2), s5(4);
• Customs Act 1901 (Cth) s233B(1)(b), s233B(1)(c), referred to.
• R v Turner (1980) 24 SASR 217;
• He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523, applied.
• R v Boyce (1976) 15 SASR 40, not followed.
• R v Frangos (1979) 21 SASR 331;
• R v Bush [1975] 1 NSWLR 298, discussed.
• Witness Protection Act 1996 (SA) , referred to.
• D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171;
• Re Gibson (1991) 57 A Crim R 322;
• R v Smith (1996) 86 A Crim R 308;
• Cain v Glass (No 2) (1985) 3 NSWLR 230;
• R v Lewes Justices; Ex parte Home Secretary [1973] AC 388;
• Marks v Beyfus (1890) 25 QBD 494;
• Jarvie v Magistrates Court of Victoria [1995] VicRp 5; [1995] 1 VR 84;
• Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1;
• R v Meissner (1994) 76 A Crim R 81, applied.
• Signorotto v Nicholson [1982] VicRp 40; [1982] VR 413, discussed.
• Commonwealth Constitution, Chapter III ;
• Judiciary Act 1903 (Cth) s78B;
• Supreme Court Criminal Appeal Rules 1996 (SA) r15, referred to.
• Coulter v R (1988) 164 CLR 350;
• Kable v Director of Public Prosecutions [1996] HCA 24; (1996) 189 CLR 51, considered.

Counsel: MR T A GRAY QC WITH MR D J WARDLE - Solicitors: DOUGLAS WARDLE

Counsel: MR S A MILLSTEED QC WITH MR P L CROWE - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS (SA)

Judgment No. [2000] SASC 161

On Appeal from DISTRICT COURT (HIS HONOUR JUDGE HERRIMAN)

(Court of Criminal Appeal: Doyle CJ, Mullighan and Bleby JJ)

[2000] SASC 161

Court of Criminal Appeal: Doyle CJ, Mullighan and Bleby JJ

DOYLE CJ. I agree that the appeal should be dismissed. There is nothing that I wish to add to the reasons given by Bleby J for so deciding.

MULLIGHAN J. I agree that the appeal should be dismissed for the reasons given by Bleby J.

BLEBY J. The appellant was convicted, after being found guilty by a jury, of a charge of possessing amphetamine for sale contrary to s 32(1)(e) of the Controlled Substances Act 1984. He applied for leave to appeal against his conviction on a number of grounds. The judge who heard the application granted leave to appeal on one ground only.

Having been refused leave to appeal on most grounds, the appellant then requested that his application be considered by the Full Court pursuant to r 15 of the Supreme Court Criminal Appeal Rules 1996. As required by r 15(6) he submitted a summary of argument. Rule 15(7) provides that such an application should be considered by the Full Court privately. In this case the appellant also provided extensive written submissions that he was entitled to be heard in open court, attacking the validity of r 15 to the extent that it allowed the application to be dealt with in private. That Full Court ("the first Full Court") adhered to the procedure identified in the Rules and held that the procedure of considering the matter in private was valid, consistent with the decision of the majority of the High Court in Coulter v R (1988) 164 CLR 350. It refused leave to appeal on the additional grounds.

At the end of his reasons for refusing leave Prior J, on behalf of the first Full Court, said:

"The applicant may wish to invite the Full Court to consider the validity of the r15 procedure when the grounds of appeal the subject of the grant of leave are listed for hearing by the Full Court. If he does, advance notice should be given to the court and the respondent of this."

In the outline of argument submitted by the appellant to this Court, the appellant sought to argue the invalidity of r 15 on grounds which included an alleged incompatibility with Chapter III of the Commonwealth Constitution. The grounds which did not directly raise incompatibility with Chapter III were said to do so indirectly through the application of the decision in Kable v Director of Public Prosecutions [1996] HCA 24; (1996) 189 CLR 51. The submissions challenged both the procedures as to the granting of leave and the restrictions, by the requirement of leave, upon the right of appeal itself.

Notwithstanding the invitation given by the first Full Court and the submissions contained in the outline of argument, the appellant had not given the notices required by s 78B of the Judiciary Act 1903 (Cth). No such notices had been given in respect of the application to the first Full Court either. At the outset of the hearing, this Court indicated that it could not entertain the argument without such notices having been given. The appellant expressly refrained from seeking an adjournment of the hearing to enable such notices to be given, and opted for the appeal to proceed. This Court made it quite clear that it would only proceed on the assumption of the validity of r 15 of the Supreme Court Criminal Appeal Rules and without hearing or disposing of the appellant's argument as to the validity of r 15. The appeal proceeded on that basis.

I merely add that, if the matter had been argued, the appellant would have encountered, at this level, a significant obstacle in the decision of the High Court in Coulter, which held the predecessor of Rule 15 to be valid in the light of a similar challenge.

On the morning of 14 September 1997 the appellant was in the Diamonds nightclub at Light Square, Adelaide. At that time Constable Downs and Sergeant Foot, both in plain clothes, went into the nightclub. Constable Downs, in purported compliance with s 52 of the Controlled Substances Act 1984, proceeded to search the appellant. The search yielded a substantial quantity of amphetamine. A subsequent search of the appellant's car yielded a further quantity. The total amount seized was 58.6 grams, containing 4.83 grams of pure amphetamine.

The admissibility of the evidence of the searches was challenged on a voir dire hearing before the jury was empanelled. Such evidence was crucial to the success of the prosecution. Constable Downs was cross-examined extensively as to his justification for conducting the search. His credibility was attacked, and it was suggested that he had falsely invented evidence of a previous incident in order to "manufacture" a ground for his intended search. It was suggested that a tip-off that he allegedly received minutes before, about the appellant being in possession of drugs, did not occur. Constable Downs was found by the trial Judge to be a credible witness. Based on the findings that he made as to the circumstances giving rise to the search, the genuineness of Constable Downs' belief and the reasonableness of the grounds for his belief, the trial Judge rejected the challenge to the admissibility of the evidence. The appellant was in due course convicted.

A little more needs to be said about the evidence led on the voir dire. Upon their arrival at the nightclub, Constable Downs and Sergeant Foot paused on what was described as a platform, from which access was gained to different parts of the nightclub. Lighting conditions there were darker than outside where it was daylight, and it took some time for the police officers to adjust their eyes to the light. Constable Downs said that soon after his arrival, a male person whom he described as being five feet seven or five feet eight inches tall, 25 to 30 years old, of average build, with plain straight black or dark hair, and of Greek or Italian appearance, approached him, probably from the northern stairs leading to the first floor lounge. The person approached him from his right and said to Downs "Richie is holding". The person then immediately left the premises. Downs said that he had seen that person on a couple of occasions over a period of six months before, but he did not then know his name and could not, at the time of giving evidence, identify him.

Downs assumed that "Richie" was on the first floor. He also inferred from the informer's conduct and from what was said to him that the informer knew that he was a police officer, and that the informer wished to remain anonymous. Downs did not attempt to discover the person's identity. According to Downs, nothing was then said between himself and Sergeant Foot, but they went upstairs. He there saw the appellant whom he knew as "Richie" from previous dealings. He assumed that the appellant was the person to whom the informer had referred. The search of the appellant then took place. Downs gave evidence of other events which also contributed to his belief that the appellant had in his possession a substance in contravention of the Act, but that evidence is not relevant for the purposes of this appeal.

At no stage did Constable Downs claim privilege or public interest immunity from being required to give the description that he gave of the informer.

Sergeant Foot also gave evidence on the voir dire. He had been standing near Constable Downs and to his left when the information about Richie was given to Downs. Because of the level of noise in the premises, he did not hear the exchange between the informer and Downs. According to Foot's evidence Downs said, before they went upstairs "We've got a job on". He assumed from that that Downs had received a tip-off, and that he was proceeding upstairs to investigate it. Both police officers were used to following the other's lead in situations like that.

Foot was asked on the voir dire if he could identify the informer. He said "I'm not sure if I could". He said that he could give a description but he declined to provide a description on the ground that it might enable the person to be identified. He was asked whether the person was a police informer, to which he answered that he did not know. Later he said that he did not know if the informer was a "registered" police informer. There was never any suggestion that the person was a participant in a witness protection programme under the Witness Protection Act 1996.

After hearing argument the trial Judge refused to direct the witness to give a description of the informer.

The ground of appeal in relation to this ruling is as follows:

"1. The Learned Trial Judge was in error in failing to exclude the evidence resulting from the search of the appellant in that: a. The witness Peter John Foot should not have been allowed to refuse to provide a description and other details concerning the 'anonymous informant' in that: (i) There was no proper basis established for public interest immunity to apply to the evidence of Sergeant Foot as to those matters sought to be led by way of cross examination of the said witness. (ii) Given the fact that the witness, Constable Downs had described the so called informant any possible claim of public interest immunity had thereby been waived. (iii) The effect of the Ruling was to deprive the appellant of a vital opportunity to further challenge the evidence of Jeffrey Wayne Downs."

After the application for leave to appeal had been dealt with by the first Full Court the appellant was given leave to add a further ground of appeal on an unrelated matter. I shall return to that in due course.

The appellant argued was that his ability to challenge the justification for the search was hindered by the failure of Sergeant Foot to give his description of the informer. The description given by Constable Downs was lacking in detail, and if Foot had given a description which conflicted with that of Downs, it would have been a basis for challenging the very existence of the anonymous informer, and therefore the principal platform on which Downs based his suspicion in order to justify the search. It was part of the appellant's case that Downs was merely looking for an excuse in order to conduct a search of the appellant.

It was further argued that if the description that Sergeant Foot was able to give had led to the identification of the informer, the trial Judge's ruling denied the appellant an opportunity of having access to a relevant witness. The informer, if identified, would be able to give evidence as to whether there was a conversation as deposed to by Downs, the nature of the conversation, the identity of the person referred to in the conversation and the meaning of the words spoken. It was also asserted that he could have been an important witness at the trial as to whether he observed the appellant merely using drugs for himself and not selling or supplying them to anyone, or whether he observed the appellant selling or supplying them to others.

The rule of law, now well-established from a long line of cases, is that the identity of police informers may not be disclosed in most legal proceedings. This forms part of the general immunity from disclosure granted in respect of communications made in the public interest. The rule and its rationale are adequately described by Lord Diplock in D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171 at 218:

"The rationale of the rule as it applies to police informers is plain. If their identity were liable to be disclosed in a court of law, these sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. So the public interest in preserving the anonymity of police informers had to be weighed against the public interest that information which might assist a judicial tribunal to ascertain facts relevant to an issue upon which it is required to adjudicate should be withheld from that tribunal. By the uniform practice of the judges which by the time of Marks v. Beyfus, 25 Q.B.D. 494 had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure."

The rule is well known and easily stated, but, surprisingly, there are many aspects of its application on which little guidance is given in the cases. Some of these have arisen in this case.

Does the protection apply to the identity of any police informer? The cases do not suggest that the protection applies only in respect of "registered" informers or those on a list kept by the police or who are paid by the police. As Ambrose J said in Re Gibson (1991) 57 A Crim R 322 at 331:

"Although the term 'informer' is not defined either in the Criminal Code (Qld) or in the Drugs Misuse Act, it is a term that has long been used in the criminal law to describe a person who is not a member of the police force who informs police officers of facts relating to the proposed commission of offences and the criminals involved or of the identity of persons involved in the commission of criminal offences already committed."

However, as Mr Millsteed QC for the respondent rightly conceded, it is not any informer of that description who will be the subject of the immunity.

Individuals give information to the police about crime for a variety of reasons and in a variety of ways. Some will give a formal interview which will form the basis of the evidence given in court. Such statements will be given sometimes willingly, sometimes reluctantly, but usually openly. It is nevertheless valuable information, and may well become admissible evidence.

Some will give all the information they know but it will be hearsay and inadmissible in a court. It may well lead to the obtaining of other evidence which can be used. Some will be able to give information which will be admissible evidence but choose not to, and merely give sufficient information that leads the police to make other inquiries which does produce admissible evidence. Information in either of these categories may be given willingly and openly. Some will be given anonymously. Some will be given expressly in confidence. Some may request that they not be identified. Some may give it on condition that they are not identified. Many, as in this case, will give information where nothing is explicitly stated about any condition of or desire for confidentiality of the identity of the informer.

Given the rationale for the rule, namely the preservation of anonymity, there must be present an element of confidentiality in the identity of the informer. This was implicitly recognised by the New South Wales Court of Criminal Appeal (Gleeson CJ, Clarke and Sheller JJA) in R v Smith (1996) 86 A Crim R 308 at 311:

"The fact that one person provides information to another in confidence does not of itself mean that disclosure of such information may not be compelled in legal proceedings. The private interest in confidentiality yields to the public interest in the due administration of justice.... The rationale of this form of public interest immunity is that, if it were not extended, sources of information would dry up and the prevention and detection of crime would be hindered."

It is only the assurance of confidentiality of the identity of the informer that prevents the valuable sources of information from drying up.

Is it sufficient if a person merely expresses a desire that his or her identity remain confidential, or must it be a condition of the giving of the information that the informer's identity remains confidential? The rationale for the immunity requires that there be protection of actual confidences, or of information given in confidence. That means, on a true analysis, that the immunity will only protect the identity of a person where the information is given upon condition that the confidence is honoured and that the person's identity will not be disclosed, or upon an assurance by the recipient that that will be the case. Anything less would seem not to be justified by the rationale for the immunity.

The question then arises as to the appropriate standard of proof of the fact that a condition of confidentiality of the informer's identity applied to the giving of the information. Must the court be satisfied on the balance of probabilities that such a condition was imposed, or is it sufficient that there is a real risk or a real chance that it was given in confidence? Does the court merely need to be satisfied that there were reasonable grounds for the police officer to believe that the information was given in confidence, or need the court only be satisfied that it was reasonable for the police officer to believe that there was a chance that it was given in confidence? I would reject any test which made it dependant upon the reasonable belief of the police officer. Ultimately, it is the court which grants the immunity. It is for the court to be satisfied that the conditions for the granting of the immunity are fulfilled. Furthermore, it would be an unjustified departure from ordinary standards if the court merely had to be satisfied that there was a real risk or chance that the informer gave the information on a condition of confidentiality. In my opinion the court should be satisfied on the balance of probabilities that the information was given on the basis that the informer's identity would remain confidential.

There will, of course, be many reasons why people wish to impose a condition of confidentiality of their identity, often coupled with restrictions on the amount of information they are prepared to give. For some it will be for reasons of self-protection. For others it will be a desire not to become embroiled in the criminal justice system. For others it may be out of a desire not to disclose their own involvement in criminal activity. There may well be other reasons. Whatever the reasons, the court cannot be concerned to inquire into them or to inquire into the genuineness of the claim. Kirby P (as he then was) in Cain v Glass (No 2) (1985) 3 NSWLR 230 at 233 - 234 considered that defence of the particular witness formed part of the rationale for the rule. He said:

"In the case of police informers, rules have developed, over many years, to protect the confidential basis upon which police deal with such informers. In part, this is for the defence of the particular witness involved. In part, it is to ensure a continuing flow of helpful information from such a witness. In part, it is to reassure the many other persons who, formally and informally, provide useful information to the police."

On the other hand, McHugh JA (as he then was) said (at 247):

"The justification for the exalted position of the informer rule in the spectrum of public interest immunity is that, unless the anonymity of informers is protected 'the flow of intelligence about planned crime or its perpetrators' will stop: D v National Society for the Prevention of Cruelty to Children (at 232) per Lord Simon of Glaisdale. Although the need to protect the safety of informers may have played a part in creating the principle, the existence of a threat to the informer is not a condition precedent to its operation."

None of the cases suggest that the existence of a threat to the informer is a condition precedent to the operation of the rule. It is therefore not necessary to establish that there is such a threat. For the same reason it is not necessary to establish the existence of any other condition which might justify the preservation of the confidentiality of the informer's identity. The rationale for the rule is the flow of intelligence about the perpetration of crime. That does not require any inquiry as to the reasons why confidentiality might be sought in a particular case. The only question is whether the condition of confidentiality exists.

Can the court be satisfied that the condition exists where, as in this case, there is no express condition imposed by the informer as to the confidentiality of his identity? There will be many cases, as in this one, where the information is almost encoded, where it merely consists of a non-verbal sign, or where the person may not even want to be seen to have had contact with the police, let alone to convey information. It will seldom be elaborate; it is likely to be information only about one particular fact. The information may not even identify a suspect. It may just be that a crime of some sort is likely to be committed at a given time or place. In none of these cases is it likely that a condition of confidentiality will have been mentioned, let alone agreed upon. Yet, if there were any suggestion that the identity of the informer would be released, the information would probably not have been forthcoming.

Merely because nothing is said does not mean that a condition of confidentiality has not been acknowledged. Often it will be implied from the conduct of the parties and from the other surrounding circumstances. In the examples I have mentioned above, the very brevity or incompleteness of the information will be a strong indicator that the condition applies. It is pointless to attempt to list all the circumstances which might give rise to an inference that the informer intended that the information should be given conditional upon his identity remaining confidential.

Where the informer has not made known explicitly the basis upon which the information is given, and in particular has not made known that it is given conditional upon his identity remaining confidential, then in the absence of evidence to the contrary, I consider that a court should be prepared readily to draw the inference from any conduct of the informer or from other surrounding circumstances that it was given on such a condition. Such an approach is consistent with the purpose and rationale of the rule, namely to give effect to the public interest in ensuring that a person is not deterred, for whatever reason, from giving relevant information to the police for the detection and prevention of crime.

The trial Judge, having referred to the public interest immunity applying "to the identity of persons who supply information to police on a confidential basis", then expressed his satisfaction that such was the nature of the supplier in this instance. In my opinion he was justified in so finding. A number of factors pointed to the fact that the information was given subject to the necessary condition. There were no factors to suggest otherwise. There was the fact that Downs was a police officer; the cryptic message itself; the fact that the informer did not pause for conversation, but disappeared from the building immediately; and the fact that the illicit drug trade attracts large amounts of money and organised crime, such that harm can often befall people who are known to or who threaten to disclose information about it to the police. In my opinion, the conditions for the operation of the rule were satisfied.

The exception to the rule has been stated in a number of ways. Lord Diplock in D v National Society for the Prevention of Cruelty to Children in the passage I have already quoted stated the exception as being in the case of a trial for a criminal offence where "disclosure of the identity of the informer could help to show that the defendant was innocent of the offence". It was formulated slightly differently by Lord Simon of Glaisdale (supra at 232), namely that the public interest "that no innocent man should be convicted of crime is so powerful that it outweighs the general public interest that sources of police information should not be divulged, so that, exceptionally, such evidence must be forthcoming when required to establish innocence in a criminal trial".

Lord Simon's expression of the exclusion was the same as that formulated in R v Lewes Justices; Ex parte Home Secretary [1973] AC 388 at 407 - 408.

In Marks v Beyfus (1890) 25 QBD 494, long regarded as containing the modern formulation of the rule, Lord Esher MR, with whom Lindley LJ agreed, considered (at 498) that the exception applied "if upon the trial of a prisoner the judge should be of opinion that the disclosure of the name of the informant is necessary or right in order to shew the prisoner's innocence....". Bowen LJ said (at 500):

"The only exception to such a rule would be upon a criminal trial, when the judge if he saw that the strict enforcement of the rule would be likely to cause a miscarriage of justice, might relax it in favorem innocentiae."

Two observations need to be made about those formulations. The first is that it is not always the case that the mere identity of the informer will help to show that the defendant is innocent. In some cases it may. In many cases, however, the application of the exception arises where evidence is sought to be tendered which will affect the innocence of the accused but which incidentally but necessarily discloses the identity of an informer. In other words, it may be the information itself which will "establish the innocence", or it may be some other information which, incidentally, will disclose the identity of the informer.

The second point to be made is that expressions like the requirement "to establish the prisoner's innocence" as justifying the exception must be read with caution lest it be thought that the exception will apply only where the burden of proof is on the accused, and that it will not apply where the evidence may reasonably raise a reasonable doubt on the prosecution case. I would wish to make it quite clear that the exception will apply not only to establish the accused's innocence but to cast reasonable doubt on the prosecution case.

There remains, however, a consideration of the extent to which the court should be satisfied that such may or will occur, if the evidence is not given.

In Cain v Glass (No 2) (1985) 3 NSWLR 230 McHugh JA at 250 stated the exception as follows:

"At a trial on indictment, the evaluation of the facts is a matter for the jury. Consequently, if information resulting from disclosure of an informer's identity may reasonably lead to the acquittal of the accused, the trial judge will be compelled to require disclosure since the weight to be given to the evidence is a matter for the jury."

The court was there concerned as to whether the rule, with its exception, applied to committal proceedings before a magistrate. At 257 McHugh JA continued:

"I see no reason to confine the exception to that part of a committal proceeding which commences after the prosecution has made out a prima facie case. No doubt the case will be truly exceptional where the disclosure of the informant's identity is likely to produce evidence leading to the destruction of proof of a prima facie case. Only if the magistrate was satisfied that disclosure would have this result could disclosure be justified. But once a prima facie case is made out and the issue is whether the magistrate should commit under the Justices Act, s 41(6), it may be easier to persuade him that the information is likely to lead to the discharge of the information against the defendant. Nevertheless the burden on the defendant will still be appreciably higher than at a trial. This is because, at the trial, it is enough to require disclosure that the jury might reasonably think that the evidence, which is likely to result from the disclosure, will lead to an acquittal." (Emphasis added)

Kirby P (at 234) agreed with the reasons of McHugh JA.

The matter was discussed at some length by Brooking J, speaking for the Victorian Court of Appeal, in Jarvie v The Magistrates Court of Victoria [1995] VicRp 5; [1995] 1 VR 84. Having referred to the tests in the English cases mentioned above and to what Gibbs ACJ said in Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 42 ("necessary to support the defence of an accused person"), he said (at 89):

"But, while the court will no doubt allow the identity of an informer to be disclosed only after the most anxious consideration, the expressions I have cited, and other similar words, were in my view not intended to convey that disclosure is warranted only where it is clear that the result must be to demonstrate that the accused is not guilty. So in Cerrah v. R. (unreported, Full Court, 6 October 1988) Vincent J., speaking in effect for the court, said: 'It is, in my view, clear that before what appears to be a legitimate claim against the disclosure of the name of a police informer is rejected, the accused must demonstrate that the evidence is at the very least capable of being, if not likely to be, of some real assistance to him in answering the case made out against him. A speculative possibility of the kind for which the present applicant contends would certainly not suffice.' I doubt whether this test is significantly different to that mentioned by Wilson and Dawson JJ. and Brennan J. in Alister v. R. at 438 and 456 (a likelihood of the obtaining of material substantially useful to the accused). The test laid down by Vincent J. is capable of being applied not only on a trial but also in committal proceedings. I would respectfully suggest that the words 'is at the very least capable of being, if not likely to be, of some real assistance to him' should be understood as requiring it to be demonstrated that there is good reason to think that disclosure of the informer's identity may be of substantial assistance to the defendant in answering the case against him. I should add that I respectfully doubt whether McHugh J.A. (as he then was) in Cain v. Glass (No. 2) (1985) 3 N.S.W.L.R. 230 intended to lay down any substantially different test to that which I have attempted to formulate. The fact that there is good reason to think that disclosure of the informer's identity may be of some slight assistance to the defence is not sufficient to outweigh the public interest in non-disclosure. The balancing process accepts that justice, even criminal justice, is not perfect, or even as perfect as human rules can make it. But once it is demonstrated that there is good reason to think that non-disclosure may result in substantial prejudice to the accused, the balance has been shown to incline in his favour and disclosure should be directed."

That formulation was adopted by the New South Wales Court of Criminal Appeal in R v Meissner (1994) 76 A Crim R 81, Carruthers J at 88. I too am happy to adopt that formulation.

In this case all that could be said by counsel for the appellant was that the disclosure of the informer's identity, or the giving of evidence which might assist in identifying him, for there was no certainty that Sergeant Foot's description would lead to his being identified, might assist in the cross-examination of Constable Downs, might assist in locating the informer who could give evidence as to the nature of the conversation and the identity of "Richie", might result in the informer giving evidence as to the appellant's behaviour relevant to showing that he was not selling and that the informer might have been of some other assistance to the appellant at the trial. The appellant was unable to show that the description of the informer by Sergeant Foot might be of substantial assistance to the appellant in answering the case against him.

It must be remembered also, that the immunity was claimed not in the course of a trial, but in the course of a voir dire examination as to the admissibility of evidence of a search. The question that is perhaps more appropriately asked is whether the description of the informer that Sergeant Foot may have been able to give was likely to be of substantial assistance to the appellant in his objection to the evidence of Constable Downs relating to the search. It cannot be said that the disclosure would be likely to have had that effect.

Sergeant Foot did not hear the conversation between the informer and Constable Downs but he did see the informer speaking to Downs. This tended to confirm Downs' evidence, accepted by the trial Judge, that a conversation occurred. It was that conversation which was crucial to the formation of Constable Downs' belief. His belief was reinforced by other factors of which he gave evidence. The most favourable answer to the appellant that Sergeant Foot could have given was a description of the informer which differed from that given by Constable Downs. It cannot be said that that would be likely to have deterred the trial Judge from accepting the evidence of Constable Downs as to what was said, given the poor lighting conditions, the short period which they both had to observe the informer and the fact that both witnesses said that a conversation occurred. On the other hand, if he had given a description which coincided with that of Constable Downs, it could only have strengthened the prosecution case.

It cannot even be said, if Sergeant Foot had given a description of the informer, that that would necessarily have led to his being identified and being able to be called. Furthermore, there was no reason to believe that the informer, if identified, could have given any evidence which would have or could have tended to assist the appellant or to exonerate him. Such a possibility was merely speculative.

In my opinion, the description by Sergeant Foot of the informer could not reasonably have been said to be capable of being of any assistance to the appellant. The effect of that evidence, if given, could have been little more than speculative or, at the most, of very slight assistance. It was insufficient to outweigh the public interest in non-disclosure. If disclosure were required merely because it might enable an accused person to pursue a possible line of inquiry, it would be tantamount to destroying the very immunity which the public interest protects. The same could be said of any informer. In my opinion the appellant has been unable to bring himself within the exception to the public interest immunity rule.

It was but faintly argued on the appeal that if public interest immunity did arise, then it had been waived by Constable Downs' failure to claim the immunity and by his giving a description of the informer. In my opinion there is no substance in this argument. In the first place, it is for a particular witness to claim the immunity. The merit of his claim cannot be judged by the failure of another witness to claim the same immunity.

However, the authorities suggest that the evidence of Constable Downs on this topic was wrongly admitted. In Marks v Beyfus (supra), Lord Esher MR said (at 498):

"[T]his rule of public policy is not a matter of discretion; it is a rule of law, and as such should be applied by the judge at the trial, who should not treat it as a matter of discretion whether he should tell the witness to answer or not."

Bowen LJ was even more emphatic. He said (at 500):

"I entirely agree that such a matter as this is not one for the exercise of the judge's discretion, but for the application of the law; the privilege does not depend upon the witness claiming it when asked the question; but the judge should refuse to allow the question as soon as it is asked."

Likewise, in Signorotto v Nicholson [1982] VicRp 40; [1982] VR 413 Fullagar J at 417 stated the rule in terms that a police officer "cannot be required, indeed cannot be permitted, to divulge the identity of a paid police informer....". However, for the reasons I have already given, it is not necessary that the informer be paid. The rule of law will apply to any informer.

Accordingly, I reject the argument of the appellant based on any alleged waiver by Constable Downs.

I turn to the second ground of appeal. The appellant was charged with a breach of s 32(1)(e), Controlled Substances Act 1984. Subsection (1) provides:

"(1) A person must not knowingly - (a) manufacture or produce a drug of dependence or a prohibited substance; or (b) take part in the manufacture or production of such a drug or substance; or (c) sell, supply or administer such a drug or substance to another person; or (d) take part in the sale, supply or administration of such a drug or substance to another person; or (e) have such a drug or substance in his or her possession for the purpose of the sale, supply or administration of that drug or substance to another person."

Section 32(3) of the Controlled Substances Act 1984 provides:

"(3) For the purposes of this section, a person who knowingly has in his or her possession more than a prescribed amount of a drug of dependence or a prohibited substance, being an amount that is prescribed for the purposes of this subsection, will, in the absence of proof to the contrary, be presumed to have that drug or substance in his or her possession for the purpose of the sale or supply of that drug or substance to another person."

The prescribed quantity of amphetamines for the purpose of the subsection is a pure weight of two grams.

Having directed the jury on the other elements of the crime the trial Judge said:

"If you get to that point, you will proceed to find it proved that the amphetamine was in the accused's possession for the purposes of selling it to another simply because that quantity exceeded two grams. But you will not proceed to that conclusion if the accused proves to your satisfaction on the balance of probabilities that the purpose of his possession was not for selling to another."

A similar direction was given later in the summing-up. There was no direction given that the accused had to know that he was in possession of more than two grams of pure amphetamine. That direction was consistent with directions which have been given in this State now for a number of years. The appellant now complains that that failure amounts to a miscarriage, that there was no evidence of any knowledge by the appellant of the amount of pure amphetamine that he possessed, and that accordingly there must be an acquittal.

Section 32(3) admits of two possible interpretations. The interpretation reflected in the trial Judge's summing-up is that the presumption arises if the prosecution proves that the accused knowingly had in his possession a drug of dependence or a prohibited substance. It need not prove that he knew that it was more than the prescribed amount. The interpretation urged by the appellant is that for the presumption to arise, the prosecution must prove that the accused knew that he had in his possession a drug of dependence or a prohibited substance and that he also knew that it was more than the prescribed amount. In other words, the question is whether "knowingly" relates only to the fact that the substance possessed is a drug of dependence or a prohibited substance, or whether it relates as well to the amount of the drug or substance possessed.

That the subsection admits of some ambiguity has been recognised in previous judgments of this Court. They related to the provisions of s 5(4) of the now repealed Narcotic and Psychotropic Drugs Act 1934. The material parts of that subsection are similar to those of subsection (3). In R v Boyce (1976) 15 SASR 40, Bray CJ at 47 expressed, obiter, the following view:

"Obviously the jury needs a careful direction as to whether or not on the facts of the particular case they are entitled to find that the onus has been cast on the defence by reason of this sub-section. The question of whether the accused knowingly has in his possession more than the prescribed quantity of the drug is a question of fact for them, once they are told what in law the prescribed quantity is. There are, in my view, strong grounds for thinking that, before the sub-section can be invoked and the onus reversed, the knowledge must extend not only to the possession of the drug but to the possession of the requisite quantity of the drug. In this case, for example, I am inclined to think that, before the jury could regard as having passed to the appellant the onus of proof on the question of whether the purpose of his possession of the drug was the purpose of sale, they would have to find, not only that he knew that the case contained Indian hemp, but that he knew that it contained more than twenty-five grams of Indian hemp."

The other case is R v Turner (1980) 24 SASR 217 where Cox J, in giving reasons for a direction given to the jury, decided the opposite. The principal reasons for not applying the section in the manner suggested by Bray CJ were that that construction would stultify the evident purpose of the subsection and would render it a dead letter, that in leaving the actual amount to be prescribed by regulation, Parliament was leaving it to the Executive to determine quantities of particular drugs that are likely to be possessed for personal use as against possession for the purpose of trade and that it was that the very quantity of the amount possessed should lead to the inference, where necessary, of the purpose of possession; and that the use of the word "knowingly" was probably directed to the requirement to show that possession of the drug in question was contrary to the criminal law.

In resolving this question it is clear that much turns on the significance and purpose of the word "knowingly" as used in the subsection. The section in the present Act was enacted before the decision of the High Court in He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523. That case concerned s 233B(1)(b) and (c) of the Customs Act 1901 (Cth). That subsection relevantly read:

"Any person who - ... (b) imports, or attempts to import, into Australia any prohibited imports to which this section applies or exports, or attempts to export, from Australia any prohibited exports to which this section applies; or (c) without reasonable excuse (proof whereof shall lie upon him) has in his possession, or attempts to obtain possession of, any prohibited imports to which this section applies which have been imported into Australia in contravention of this Act; ... shall be guilty of an offence."

As it will appear from some of the cases to which I shall need to refer in due course, prior to the decision in He Kaw Teh there was some uncertainty about and different views taken of the nature of possession for the purposes of drug legislation and in particular, of the necessary mental element or mens rea involved in possession. As determined by the majority in He Kaw Teh, the starting point is that there is an implication or a presumption that a guilty mind is an essential ingredient of every offence. As Brennan J said at 565:

"When a statute creates and defines an offence only by reference to its external elements, a mental element is usually implied in the definition. A person who engages in prohibited conduct is not criminally responsible for it unless the mental element is present. The mental element is mens rea or guilty mind."

That presumption or implication may be rebutted by the terms of the statute or the way in which it deals with the subject matter: Gibbs CJ at 528; Brennan J at 565 - 566 and Dawson J at 590 - 591. Whether it has been so rebutted is a matter of statutory interpretation, but "it requires clear language before it can be said that a statute provides for a person to do or to abstain from doing something at his peril as to make him criminally liable if his conduct turns out to be prohibited because of circumstances that that person did not know or because of results that he could not foresee" (Brennan J at 567). The Court held that the presumption had not been rebutted in respect of either of the relevant paragraphs in s 233B(1) of the Customs Act.

In respect of a charge of possession under paragraph (c) it was held that the prosecution bore the onus of proving not only that the accused knew that he had possession, in the sense of exclusive physical control, of the goods but that he knew that they were a prohibited import. Possession "connotes knowledge of the existence of the thing possessed" (Gibbs CJ at 542). In relation to the words "reasonable excuse" as used in paragraph (c), the Chief Justice had previously observed (at 539):

"Plainly the words suggest that no question of reasonable excuse arises until it is proved that the accused had possession of the goods. Since possession imports knowledge, 'reasonable excuse', which falls to be considered only after possession has been proved, does not include mere lack of knowledge."

I return to a consideration of s 32(1)(e). If the prefatory word "knowingly" were removed from subsection (1), it is reasonably clear, in the light of the decision in He Kaw Teh that the elements of the offence which the prosecution would have to prove (in the case of a drug) would be as follows:

3. That the accused was in possession of the substance in the sense that -

(a) the substance was in his exclusive physical control;

(b) he knew that it was in his physical control; and

(c) he knew that the substance was a drug of dependence; and

4. His possession of the drug was for the purpose of sale, supply or administration to another.

On this analysis it is immediately apparent that the word "knowingly", so far as paragraph (e) of the subsection is concerned, is superfluous and adds nothing to the ordinary requirements for proof of the necessary mental state associated with possession.

It is also plain that the word "knowingly" adds nothing to and cannot qualify the fourth element I have listed, namely the purpose of the possession. The purpose referred to in the section is an additional element. It is an intention to achieve a particular end: in this case the sale, supply or administration to another of a substance of which the accused is in possession. Such a purpose or intention is either proved or it is not. Therefore, whatever Parliament intended by inserting the word "knowingly" in subsection (1), it can only have been intended to qualify "possession".

I return to the fourth element, namely proof of the purpose for which the substance is possessed. Purpose can be proved in a number of ways. Perhaps the most obvious is by way of a statement of the accused as to what his purpose was. It can be inferred from his actions, but it cannot be inferred solely from the fact of possession of the drug or from the fact of his "knowingly" being in possession of the drug.

Drawing an inference as to a person's intention in performing a particular act is a common feature of a criminal trial, and a common process for juries to engage in. In most cases, however, the inference being drawn is as to an intention or purpose in performing an act which has happened, and the inference can readily be drawn from the nature of the act itself and the surrounding circumstances. However, s 32(1)(e) requires proof of an intention or state of mind usually as to an event which has not yet happened. Unless an accused admits a particular purpose or intention, which is unlikely, there are very few objective facts, apart from possession, from which the intention to sell or supply can be inferred. Possession by itself will not be enough. In the fickle drug trade it is extremely difficult to prove an intention or purpose before the intended act is carried out. If the intended act is carried out, another offence by then will have been committed under s 32(1)(c), but with it may well be lost the opportunity to prove the nature of the substance or drug possessed. It may be possible in some circumstances to infer a necessary purpose by proving contact of the possessor with another person or acts of transportation, but even they may be insufficient. The difficulty with proof of an offence against s 32(1)(e), standing alone, is that by definition of the offence in question, the very act intended will not have been carried out, and the necessary inference would be extremely difficult to prove.

The purpose of s 32(3) is to render proof of that purpose or state of mind easier. It is an aid to proof of the fourth element of the offence as I have described it. It would plainly fail in its purpose if it added an extra element to be proved in order to secure a conviction, or if it substituted for the fourth element proof of another element more difficult to prove than the fourth element, proof of which it is designed to assist.

The appellant's argument in this case requires that, in order to take advantage of subsection (3) the prosecution should prove beyond reasonable doubt that the accused knew that the amount of (in this case) amphetamine in pure form exceeded two grams. Amphetamine, and a great many other drugs in powder form are "cut" by diluting the pure form with other substances. The extent of the dilution can vary considerably, and cannot be ascertained by visual observation, feel or by smell. It would usually be ascertainable only by chemical analysis. It would be odd if Parliament, as an aid to proof, intended to substitute for proof of one state of mind, proof of another which is even more difficult to prove than the first. Given that the kinds of substances to which the subsection applies are usually possessed and traded in a diluted, adulterated form, the prosecution could seldom prove that an accused knew the precise quantity of unadulterated, pure substance possessed or traded in these circumstances. In most cases it would not even be possible to prove that the accused had directed his or her mind to the question, let alone prove knowledge of the pure quantity of the drug.

Parliament must have intended the subsection to have some use. The fact that the appellant's argument would effectively render it impotent points strongly to an interpretation which only requires proof of the actual amount of the unadulterated substance in order to raise the presumption of the purpose of sale or supply.

I have already pointed out that the use of the word "knowingly" in subsection (1) appears to add nothing to the requirements of proof of an offence against subsection (1)(e). The Controlled Substances Act 1984 repealed the Narcotic and Psychotropic Drugs Act 1934. It is not insignificant that the equivalent section in that Act did not contain the word "knowingly". Section 5(2) provided:

(2) A person who - (a) produces, prepares or manufactures a drug to which this Act applies; (b) cultivates a prohibited plant knowing it to be a prohibited plant; (c) sells, gives, supplies or administers, or offers to sell, give, supply or administer any drug to which this Act applies to any other person or otherwise deals or trades in any such drug; (d) has in his possession any drug to which this Act applies for any of the purposes set out in paragraph (c) of this section; or (e) being the owner, lessee or occupier of any premises, or concerned in the management of any premises, permits those premises to be used for the production, preparation, manufacture, sale, distribution, smoking, consumption or administration of any drug to which this Act applies or for the cultivation of any prohibited plant, shall be guilty of an indictable offence." (Emphasis added)

Whilst s 5(2) of the Narcotic and Psychotropic Drugs Act did not qualify an offence of possession for the purposes of sale or supply with the word "knowingly" it did do so in s 5(1) for simple possession. That subsection created an offence where a person who "knowingly has in his possession any drug to which this Act applies". When speaking of that subsection in R v Frangos (1979) 21 SASR 331 King CJ said:

"A charge under this provision may be analysed into three ingredients. The first ingredient is possession of the thing which is the subject of the charge. In general, there is possession for this purpose where there is physical custody or control of the thing, together with knowledge on the part of the accused that the thing is in his physical custody or control (Director of Public Prosecutions v. Brooks [1974] A.C. 862).... The second ingredient is that the thing which is the subject of the charge is a drug to which the Act applies. The third ingredient is the mental element involved in the word 'knowingly'. If it were not for the word 'knowingly' in our statutory definition, a question would arise as to the nature of the mental element of the crime and as to the applicability of Director of Public Prosecutions v. Brooks [1974] A.C. 862.... The word 'knowingly' makes it clear, however, that under our statute the prosecution must prove, not only that the accused knew that the thing which is the subject of the charge was in his custody or control, but also that he knew that it was a drug to which the Act applies."

Walters J, with whom Wells J agreed, also agreed with the essential ingredients listed by King CJ but added (at 339):

"Although what does constitute possession may vary according to each set of circumstances, and according to the context in which the word 'possession' is used, it seems to me that in order to prove possession, it must ordinarily be shown that the possessor had the thing in his physical custody or control under circumstances which demonstrated that he had a conscious mental recognition of the thing's presence, and that he was assenting to being in custody or control of it.... However, in order to prove the type of possession which is proscribed by s. 5(1)(a) of the Act, the prosecution must go further, and prove a mental element beyond what is required in order to constitute mere possession. Before the prosecution can succeed on a charge under the section, it must be proved that the defendant 'knowingly [had] in his possession a drug to which [the] Act applies'; in other words, that he had a conscious mental recognition that the substance in his possession was a drug whose nature was such that it was prohibited by law."

In the light of the decision in He Kaw Teh, those observations are incorrect, but the case does provide useful background to the circumstances in which s 32 of the Controlled Substances Act was enacted. A not dissimilar position had been taken by the New South Wales Court of Criminal Appeal in R v Bush [1975] 1 NSWLR 298, where the Court had held that it was not necessary to prove knowledge of the nature of the substance possessed because, among other things, possession in the relevant statute meant no more than de facto possession. That case was specifically overruled in He Kaw Teh.

The addition of the qualification "knowingly" to s 32(1) of the Controlled Substances Act when it was enacted in 1984 would therefore have been perceived as having some significance. In the then state of the law it can be seen to have been intended to have been a change of substance from the equivalent provision in the Narcotic and Psychotropic Drugs Act. More significantly for present purposes, however, it may explain why the word "knowingly" was used in s 5(4) of the Narcotic and Psychotropic Drugs Act. Section 5(2)(d) made it an offence for a person who "has in his possession" a drug for the purpose of sale, supply etc. "Knowingly" was not included. However it was included in subsection (4), which read:

"(4) A person who knowingly has in his possession more than a prescribed quantity of any drug to which this Act applies shall be deemed to have that drug in his possession for the purposes of trading in the drug unless the contrary is proved."

The elements which the prosecution was required to prove under subsection (2)(d) were:

1. That the substance in question was a drug to which the Act applied;

2. That the accused was in possession of the substance (on the then state of the law, de facto possession only, proving that he had possession but not necessarily that he knew that it was a drug to which the Act applied); and

3. That the accused's possession was for the purpose of sale, supply etc.

It was in those circumstances that subsection (4) was enacted requiring, if the subsection was to be availed of, that the accused "knowingly" had possession (i.e. that he knew that the substance was a drug to which the Act applied) and that he possessed more than the prescribed quantity. The rationale for the subsection can be seen: namely that if the prosecution availed itself of the deeming provision, it must also prove knowledge on the part of the accused of the substance possessed - knowledge that it was a drug to which the Act applied. Upon proof of the actual quantity possessed, the deeming provision would apply. If subsection (4) was not availed of, the offence could still be proved by other means, but it was not necessary to prove knowledge that the substance possessed was a drug to which the Act applied.

What appears to have happened when the Controlled Substances Act was enacted in 1984 (without the benefit of the High Court's decision in He Kaw Teh) is that "knowingly" was inserted in the body of the subsection creating the offence (subsection (1)), and that the essential features of the deeming provision were retained in s 32(3), although with the change to subsection (1), the use of "knowingly" was no longer necessary in subsection (3). What does seem clear from this history, however, is that "knowingly" was only ever intended to qualify the nature of the substance possessed. Since the decision in He Kaw Teh, there is an added reason why the word in subsection (3) is superfluous. If subsection (3) properly construed, suggests that "knowingly" is for that reason superfluous, it can only add weight to the interpretation adopted by Cox J in R v Turner.

There remains the dictum of Bray CJ in R v Boyce (supra). One would hesitate in not applying a dictum from such an eminent source. However, it was not necessary for the decision and the question appears not to have been fully argued. I consider that the reasons of Cox J in R v Turner for taking the opposite view are preferable, and derive considerable support from the matters to which I have referred.

I am conscious of the fact that the parliamentary intention could have been put beyond question by drafting the subsection in a slightly different manner. I have explained how I believe that the present drafting may have come about. That has plainly given rise to some ambiguity. When the ambiguity was first raised, it was resolved by Cox J in R v Turner. That decision has now stood for some 20 years. I would be reluctant to disturb, without good reason, a settled interpretation of the section which has been accepted and acted upon for that period. Although there is some ambiguity, I certainly see no good reason to depart from that interpretation.

For these reasons I would reject the second ground of appeal.

It follows that in my opinion the appeal should be dismissed.