The learned trial judge erred in admitting evidence that had been obtained in contravention of an Australian law.
5 Argument in support of this ground relied upon Ridgeway (supra) in the context of the express provisions of s138 of the Evidence Act 1995.
6 It was contended that the whole of the evidence in the Crown case (described as effectively the evidence of the witness Cluff) or at least certain evidence to which I will later refer concerning the importation of a firearm, should have been excluded on the basis that the case fell into either or both of the categories mentioned in the joint judgment in Ridgeway , namely as to the first that illegal or improper conduct of police had induced the appellant to commit the offence and as to the second, that illegal conduct of police was an element of the charged offence.
7 No oral evidence was adduced on the voir dire hearing but a very substantial quantity of documentation was tendered. Included were three sets of particulars, transcripts of interviews by police with intended witnesses (Modica and Cluff), witness statements by Cluff, an affidavit by the then detective in charge of the operation leading to the arrests of the appellant and others, transcripts of recorded conversations, committal depositions and the transcripts of three earlier uncompleted trials.
8 In relation to the lastmentioned, it can be noted that a trial presided over by Viney DCJ resulted in the jury being unable to agree. Two further trials commenced, presided over by Christie DCJ, but both were aborted. The circumstances in which one of these terminated will be touched upon in relation to ground 3. Both Viney DCJ and Christie DCJ had conducted similar voir dire hearings to that conducted by Flannery DCJ and each had ruled, on the evidence respectively before them, that the evidence which was the subject of the objection should be admitted.
9 Flannery DCJ (dealing both with the appellant and Bijkerk) found that "neither accused was induced to commit a crime which either would have been unlikely to commit". The appellant gave no evidence that he was induced to commit the offence and relied, both at first instance and in this court, upon a contention that it should be inferred from the documentation that he was so induced.
10 It is apt to sketch a chronology of some significant events and circumstances.
11 Being in possession of the forged customs stamp, Modica sought to use it in ventures by others who wished to bring into Australia contraband of various sorts including drugs. In about 1990 Modica became acquainted with Cluff, the point of contact being a hairdressing salon being operated by Modica's brother- in-law of which they were customers. Modica sought Cluff's help in acquiring venturers. Cluff introduced a man named Harvey and two importations of illicit drugs were undertaken. One succeeded and the second was foiled by authorities. Thereafter Harvey declined to make another attempt and Modica, with some persistence, sought Cluff's help in finding another venturer.
12 On 11 February 1992 Modica was arrested. He agreed to assist police. On 25 February 1992 there was a meeting at the West Ryde Hotel between Modica and Cluff and this meeting was recorded by a listening device. The purpose of the meeting was for Modica to see if Cluff had found someone "to organize another cocaine importation". By this time of course Modica, but not Cluff, was acting at the behest of police. Cluff nominated the appellant as a person desirous of importing narcotics from America. They (Cluff and the appellant) had first discussed the possibility of importing narcotics with the help of Modica's forged stamp "a month or two" before the West Ryde Hotel meeting, therefore the discussion was either in late 1991 or early 1992.
13 There was a considerable delay before any actual activity and the evidence suggested several reasons contributing to this. The appellant was seeking funds for his venture and it was in connection with this that Bijkerk ultimately joined. In addition, the appellant required a share of the potential profit more favourable to himself than had originally been proposed. He also wished to be satisfied that, if Modica's scheme was implemented, the degree of risk of detection by authorities would be low. There was further delay when the appellant reported an unwillingness to engage in activity for a time owing to the terminal illness of a family member.
14 However, in the first half of 1993 a meeting was held between the appellant, Bijkerk and Cluff at a location described as outside the Lion Battery factory at Burwood, and the desire to make an illicit import was affirmed. In June 1993 the appellant informed Cluff that he and Bijkerk "had the money arranged". There were subsequent meetings by various conspirators including a gathering of Modica, Cluff, Bijkerk and the appellant at a chinese restaurant in Croydon when Modica reassured the others that the reason for the failure of the second importation involving Harvey had been learned (the invoice had been placed within the package instead of being attached to the outside) and he further assured them that the mistake would not be repeated.
15 The evidence did not enable a finding that agreement was reached at any exact time but it obviously had been reached prior to July 1993 when Bijkerk travelled to the United States. Whilst there the conduct of a "trial run" importing a pistol into Australia was conceived. Neither Modica nor Cluff was involved in the conception of this part of the plan. Modica reported to police when he found out about it and, after intercepting and disabling the weapon, police and customs permitted a routine delivery to be completed. Bijkerk made a second excursion to the United States in September 1993 when cocaine was despatched to Australia by a similar means. The authorities intercepted the narcotic and replaced it with a licit substance. Arrests followed shortly after delivery.
16 The offence of conspiracy charged against the appellant was complete upon his agreement to participate in the narcotics importation and the occurrence of events in furtherance of the agreement after it had been struck were evidential of, but not elemental to his crime.
17 The principal submission of the appellant was that he had been induced to commit the crime by conduct by or on behalf of authorities which was both illegal and improper in the sense that it involved harassment and manipulation inconsistent with "minimal standards of acceptable police conduct": Ridgeway @ p37 per Mason CJ, Deane and Dawson JJ. It was also submitted that the facts went "beyond a situation in which police have merely provided the opportunity for an offence to be committed": @ p57 per Toohey J. Reference was made to the observation of Gaudron J:
"The question whether an accused would not have committed the offence charged if law enforcement agents had not in some way incited or participated in its commission is a question of causation. It may be that, in some cases, it is more accurately described as a question of the causative influence of an inducement. But however it is described, it is a question to be decided as a matter of common sense and experience, not by some hard and fast test which focuses on the disposition of the accused. Of course, disposition will be relevant in some cases, but even then, it may not be decisive. And in some cases - the present case is one - disposition may be of no relevance at all." : @ p78.
18 Finally senior counsel for the appellant adverted to the remarks of McHugh J (dissenting in the result) :
I do not think that it is possible to formulate a rule that will cover all cases that arise when an accused person seeks to stay a prosecution on the ground that the offence was induced by or was the result of the conduct of law enforcement authorities. The ultimate question must always be whether the administration of justice will be brought into disrepute because the processes of the court are being used to prosecute an offence that was artificially created by the misconduct of law enforcement authorities. That question should be determined after considering four matters:
(1) Whether conduct of the law enforcement authorities induced the offence.
(2) Whether, in proffering the inducement, the authorities had reasonable grounds for suspecting that the accused was likely to commit the particular offence or one that was similar to that offence or were acting in the course of a bona fide investigation of offences of a kind similar to that with which the accused has been charged.
(3) Whether, prior to the inducement, the accused had the intention of committing the offence or a similar offence if an opportunity arose.
(4) Whether the offence was induced as the result of persistent importunity, threats, deceit, offers of rewards or other inducements that would not ordinarily be associated with the commission of the offence or a similar offence." : @ p92.
19 His Honour's preceding remarks should also be noted:
"The State can justify the use of entrapment techiques to induce the commission of an offence only when the inducement is consistent with the ordinary temptations and stratagems that are likely to be encountered in the course of criminal activity. That may mean that some degree of deception, importunity and even threats on the part of the authorities may be acceptable."
20 As a primary matter, consideration must be given to identifying those persons or categories of persons who can relevantly be regarded as representative of authority. Police and customs officers are obviously included. In the present case Modica must be so regarded only after his arrest in February 1992 when he agreed to assist police. Contrary to the submission of the appellant, Cluff was not relevantly an agent of authority. I say not relevantly because until he was arrested for his own involvement in the conspiracy on 1 November 1993 he was unaware of the police investigation. By that date the appellant's offence had been committed and anything that Cluff did or agreed to do thereafter could not affect the appellant's culpability. Insofar as prior to his arrest, Cluff dealt with the appellant at the behest of Modica he did not thereby become the agent of those on whose behalf Modica was acting and indeed, Cluff was a target of, rather than a tool of, the investigation.
21 In a written submission senior counsel for the Crown conceded that "while their (police) conduct was unlawful in that they 'counselled or procured' the importation of narcotics through the agency of Modica contrary to s 233B(1)(d) (of the Customs Act), they did not induce the appellant's involvement. Rather they merely allowed Modica to continue to promote his scheme through Cluff mindful that the appellant had already expressed interest in it".
22 In support of the principal submission it was contended that on all the material here … "(the appellant) would not have made the agreement to import prohibited drugs unless the proposition had been put to him in this form by the Federal Police…". The reference to form included the terms of the profit share to be allocated to the appellant. It was submitted that the appellant might be inferred to have agreed only to participate in the crime on terms and not generally, and that he had agreed only after a significant and unacceptable degree of pressure had been placed upon him.
23 This pressure was said to have been applied by Cluff who, it should be repeated, was not even aware of any police investigation or activity at the relevant time. Evidence showed that Cluff undoubtedly made frequent enquiry of the appellant as to whether he remained interested in the scheme and the appellant's response was to use expressions such as "just leave it with me". The proposition that inducement of the appellant should be implied - as it must be in the absence of any direct testimony from the appellant - has to be examined in the whole context. As already stated, the appellant needed assistance by way of finance and was not content with the original profit sharing arrangement. The agreement was able to crystallise when Bijkerk was introduced. The appellant was the medium through which he was found and introduced and nothing in the evidence suggests that this was inspired by suggestion from either Cluff or Modica.
24 It was pointed out that some of the evidence of Cluff's repeated approaches to the appellant emerged in the trial and was not before Flannery DCJ at the voir dire hearing. This is an appeal against conviction and I see no reason for limiting material available for examination in order to consider the appellant's contentions. However I am unpersuaded that his Honour's conclusion that the appellant had not been induced to enter the criminal agreement has been shown to be wrong and no material at trial additional to that was available on the voir dire hearing causes me to reach a different conclusion.
25 Obviously extracted from the observations of the joint judgment in Ridgeway @ p37 much stress was placed in submission upon an assertion that the appellant was the subject to "manipulation and harassment". There was nothing which occurred which could merit description as "manipulation" of the appellant, and if (ignoring the absence of Cluff's agency for the police) analysis is undertaken of the descriptions of the encounters between Cluff and the appellant, there is shown a persistence rather than a "harassment". The appellant was acting in accordance with his own wishes and any unwillingness can be seen to relate, not against involving himself in the criminal enterprise but towards his desire of achieving favourable terms for himself and fulfilling a need for assurance concerning the degree of risk of detection.
26 The finding that the appellant was not induced to commit the offence by police conduct excludes the case from the first category mentioned in Ridgeway @ p39. Nor, so far as the second category mentioned is concerned, was any police conduct an essential ingredient of the charged offence. The submission that such conduct was an element of offence overlooked the fact that the crime of conspiracy had been committed prior to any actual importation either of the illicit drug or of the pistol on the "dummy run". It was argued that the charged offence was ancillary to illegal police conduct but it is plain that, on the Crown's concession that police counselled or procured Modica to import narcotics, such conduct has to be classified as ancillary to the crime of conspiracy charged rather than the other way around.
27 The evidence does not show that the appellant was directly involved in the decision to test the efficacy of the scheme by despatch of the pistol. This would appear to have been conceived by Bijkerk and, presumably, American connections. It was undertaken nevertheless after the agreement to import narcotics in which the appellant was a participant was struck and was in a real sense in furtherance of that agreement in that assessment of the risk of detection was always a major consideration. There was no error in admitting that evidence.
28 Insofar as his Honour declined to exercise the discretion to exclude the evidence, no basis has been shown for this Court to intervene and there is manifest no failure to adhere the principles established in such cases as Bunning v Cross 1978 141 CLR 54 and Ridgeway or by s138 of the Evidence Act.
29 Ground 1 is not made out.