R v Sahin [2000] VSCA 145

21. The circumstances leading to the secret taping of the conversations were these. In early 1996 the applicant was charged with several firearms offences. It seems that he was concerned that a conviction might jeopardise his prospects of gaining entry into the United States. He also had a sense of grievance about the pending prosecution; he felt that the informant was being unreasonable and officious in pursuing the prosecution and wished to have it withdrawn. Consequently, on 15 April 1996 he asked Detective Senior Constable Peter Watson to speak to the informant about dropping the charges. Watson told the applicant, in effect, that the informant could not withdraw the charges because he lacked seniority; only an officer of the rank of senior sergeant or higher could do so. His advice to the applicant was to speak to his solicitor.

24. Watson was then unaware of the fact that, on 11 April 1996, a covert investigation had commenced in relation to the applicant which arose out of Detective Senior Sergeant (now Inspector) Vallas ("Vallas") being informed by Detective Senior Sergeant Coburn ("Coburn") that he had received information from an informant that the applicant had made threats directed to a policewoman who had taken part in executing a search warrant at his premises. Coburn also told Vallas that he was told by the registered informer that the applicant was seeking to procure the services of a corrupt policeman, preferably one who spoke Greek or Turkish who would, in exchange for money, cause harm to the policewoman and have the firearm offences withdrawn. On the following day, Vallas obtained permission from his superior to act as an undercover operative and assume the role of a corrupt policeman and in that context deal with the applicant.

27. In the result, Vallas and the applicant met on five occasions between 15 April and 2 May 1996 during which they discussed, essentially, Vallas using his position in the police force to procure certain results for the benefit of the applicant. The conversations of those meetings (other than that at the second meeting) were secretly tape-recorded by a device which was under the control of Vallas. He had numerous other telephone and face-to-face discussions with the applicant during this period concerning matters associated with the services that he was to provide to the applicant, but they are not relevant for present purposes and can be disregarded. On 8 May 1996 the applicant was arrested and was ultimately charged with the offences in respect of which he stood trial.

30. So far as is relevant, the Crown case against the applicant was that he incited Vallas to blackmail with a view to obtaining payment of $1.35m which the applicant claimed was due to him by a Steven Zulic ("Zulic"). The prosecution contended that the applicant effectively requested Vallas to engage in a course of conduct which involved Vallas placing a trafficable quantity of heroin at Zulic's home and Vallas then raiding the premises, finding the drugs and arresting Zulic on a charge of trafficking heroin. The charge was to lead to Zulic being required to surrender his passport thereby preventing him from leaving Australia. The applicant believed that this, in turn, would bring sufficient pressure to bear on Zulic and his associates to cause them to pay the applicant the $1.35m.

33. His Honour found the following relevant facts. Towards the end of the first meeting, at which Vallas agreed to procure the withdrawal of the firearms charges, the applicant mentioned that there was the possibility of further work that Vallas might be able to perform for him and, in particular, assist in collecting $1m owed to him by a then unnamed person. At the third meeting, the applicant again raised the topic of Vallas helping him to collect the money. This time, he was more specific. He said that the amount was $1.35m and that the person who owed it to him was Zulic (who was then unknown to Vallas). The applicant suggested the use of heavy-handed tactics to pressure Zulic into paying the money and told Vallas that he would be prepared to pay him 20 per cent if he could get the money back. The applicant dismissed Vallas' suggestion that he sue for the money, saying it would involve a delay of three to five years.

36. At the fourth meeting the applicant raised for the first time the possibility of preventing Zulic from leaving Australia as a way of forcing him or his overseas contacts to pay the alleged debt. The applicant said that he wanted to discuss this matter with Vallas to see which was the best way to proceed in that regard. Eventually Vallas said that to prevent Zulic leaving Australia he would have to be charged with an offence and that, as a condition of bail, he would have to surrender his passport (which would be returned to him upon payment of the money). His Honour found that in response to Vallas asking if Zulic had drugs or guns or something of that nature in his place, the applicant suggested that such goods be planted there. This finding was strongly challenged by Mr. Thomas and I will come back to it later. A plan was then formulated, principally by Vallas, which involved Vallas planting illegal goods on Zulic, arresting him and thus forcing him to surrender his passport. After some further discussions the applicant told Vallas on 2 May 1996 to implement the scheme.

39. In his ruling, his Honour rejected the submissions of counsel for the applicant that Vallas "criminally implicated" himself in the offence. His Honour said that he did not consider that Vallas incited or procured the applicant to commit the offence; he merely provided an opportunity for him to incite Vallas to blackmail. His Honour said that, although Vallas did suggest "certain procedures particularly in relation to the incitement of blackmail and put propositions with which the applicant could have disagreed", the procedures were worked out by Vallas in response to a request for such advice from the applicant and it was the applicant who ultimately authorised that the scheme be implemented. There was no illegal conduct on the part of Vallas.

42. In R. v. Ridgeway[2], Mason, C.J., Deane and Dawson, JJ. recognised[3] that the trial judge has a discretion to exclude particular prosecution evidence on public policy grounds where it has been obtained by unlawful or improper means by law enforcement officers. Their Honours also held that the trial judge has a like discretion[4] to exclude any evidence which tends to establish the accused's guilt of the alleged offence or any element of it where the commission of that offence was procured by the unlawful or improper conduct on the part of the police. It is unnecessary to examine their Honours' reasoning which led them to articulate these principles. Suffice it to say that it had its foundation essentially in what was said by Barwick, C.J. (with whom the other members of the court agreed) in R. v. Ireland[5] as that was further explained by Stephen and Aickin, JJ. (with whom Barwick, C.J. agreed) in Bunning v. Cross[6] where their Honours emphasised[7] that:

"What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law."

46. In Ridgeway, their Honours also recognised[8] that the relative weight to be given to the requirements of public policy will vary according to the circumstances of the particular case, but they considered[9] that where it is sought to exclude all evidence of an illegally procured offence, the illegal behaviour of the police must be particularly grave before the discretion is exercised to exclude it. Their Honours said:

"The discretion to exclude all evidence will ordinarily fall to be exercised on the assumption that the offence has been committed and that the effect of the exclusion of the evidence is that the prosecution will be shut out completely from proving guilt and that a guilty person will walk free. In contrast, the discretion to exclude illegally procured evidence will ordinarily be exercised on the basis that guilt or innocence remains an open question to be determined by reference to any other admissible evidence which the parties may see fit to place before the court. On the other hand, in the worst cases of entrapment by illegal police conduct, the weight to be given to the public interest in the conviction and punishment of those guilty of crime may be lessened by the diminution in the heinousness of the accused's conduct resulting from (for example) the fact that he or she was an otherwise law-abiding person who would not have offended were it not for the `inordinate inducements'[10] involved in the illegal conduct."

50. It will be recalled that what the applicant sought to be excluded from the trial was evidence of the offence with which he was charged as distinct from particular evidence which was illegally obtained. I have already mentioned that the learned judge found that the conduct of Vallas was not relevantly unlawful or improper and that it did not procure the relevant offence. Mr. Thomas did not contend that his Honour applied any wrong principle of law in reaching his conclusion. He argued, rather, that his Honour made the following errors.

(a) His Honour's finding that it was the applicant who suggested to Vallas that certain goods be "planted" on Zulic was unsupported by the evidence, which showed that the proposal originated from Vallas. Mr. Thomas claimed that this amounted to an erroneous finding of a material fact.

(b) It was not open to his Honour on the evidence to find, as he did, that Vallas had not acted unlawfully in his dealings with the applicant. It was Mr. Thomas' case that, on the evidence, his Honour was bound to find that Vallas had acted unlawfully in relation to the applicant and had, by such conduct, incited or procured the commission of the offence in question.

(c) Similarly, it was said that the finding that Vallas had not acted improperly was not open on the evidence. Mr. Thomas argued that his Honour was bound to find on the evidence that the relevant conduct of Vallas was improper and that it incited or procured the commission of the offence by the applicant.

56. In my view, the first contention should be rejected. The transcript of the relevant part of the conversation and the recording of it support his Honour's conclusion or, at the very least, they do not establish an error on his Honour's part on this issue. The material shows that in the context of Vallas explaining to the applicant that Zulic would have to be charged with a criminal offence if he were to be prevented from leaving Australia, Vallas said:

".. I mean if we have some information like he had drugs or guns or something like that at his place or - I dunno .."

"I don't think he - he can operate anything like that, to be honest".

Although the transcript does not disclose this, the playing of the tapes reveals that the applicant added to what I have just set out, the words "I don't think so". Be that as it may, according to the transcript Vallas then said: "Yeah. We'll see if my friend can - you know ..". The transcript then shows the applicant as saying ".. plant something there sort of get him or something like that, you know? ..". I have listened to this section of the tape on a number of occasions and, in my view, it discloses that the applicant said, immediately prior to saying "plant something", the words "not unless they can". In other words, what the applicant said in response to Vallas' statement: "Yeah. We'll see if my friend can - you know ..", was this:

"Not unless they can plant something there sort of get him or something like that, you know?"

64. Thus, looking at the conversation as a whole, it discloses in my view that it was the applicant and not Vallas who made the suggestion that illegal goods be "planted" on Zulic. At the very least, it was open to his Honour so to find. I should say for completeness that both parties agreed that we could listen to the tapes for the purpose of clarifying what has been recorded on the transcript and, since this particular issue was strongly contested, they helpfully wound the relevant tape to a position where the conversations in question commenced.

67. I note that the applicant did not give evidence on the voir dire or at the trial and that the correctness of the tapes and the transcript was not relevantly challenged. Moreover, neither on the voir dire nor at the trial did the applicant's counsel, who is experienced in the conduct of criminal trials, submit that Vallas somehow deliberately led the applicant to suggest that the goods be so "planted". This is to be contrasted with the applicant's case below that Vallas had solicited the bribe, not by seeking it in terms, but by using the motion of rubbing his fingertips of the one hand together so as to indicate that he wanted to be paid.

70. Consequently, I am not persuaded that his Honour erred in that finding.

73. But even if I am wrong in this conclusion, given his Honour's other findings of fact which are not challenged and the other matters to which I refer later, even if it is assumed that it was Vallas who effectively suggested that the illegal goods be "planted" on Zulic, by itself, this error would not vitiate his Honour's decision to allow the Crown to lead the evidence in question. It was the right decision.

76. I now turn to consider Mr. Thomas' second argument which is based on the contention that the relevant conduct of Vallas was unlawful. Mr. Thomas argued that Vallas acted unlawfully in that he incited the applicant to incite him, Vallas, to blackmail. In my view, this submission has no substance. First, the evidence makes it clear that Vallas did not incite the applicant to incite him. In my view, for reasons which appear later, on a proper characterisation of the evidence, Vallas merely afforded the applicant the opportunity to incite him to blackmail Zulic and did not procure him to commit that offence. Secondly, even if the conduct of Vallas towards the applicant fell within the definition of "incite" in s.2A of the Crimes Act 1958 (which includes "command, request, propose, advise, encourage or authorise") such conduct would not, by itself, constitute the crime of incitement which is a statutory offence created by s.321G of the Crimes Act[11] because Vallas did not intend to incite the applicant within the meaning of that section.

79. I now turn to consider Mr. Thomas' third principal submission which was founded on the contention that his Honour was bound to find on the evidence that, in his relevant dealings with the applicant, Vallas had acted improperly. In the context of considering the circumstances which might constitute improper conduct by law enforcement officers, Mason, C.J., Deane and Dawson, JJ. in Ridgeway recognised[12] that effective investigation into some types of criminal activity may necessarily involve on the part of the police subterfuge, deceit and the intentional creation of opportunities for the commission by the suspect of a criminal offence. Where those tactics do not involve criminal conduct, their use will ordinarily be legitimate notwithstanding that they are conducive to a criminal offence by a person believed to be engaged in criminal activities. Their Honours said that the stage of impropriety will be reached in such a case only where harassment or manipulation is practised by the law enforcement officer which is inconsistent with the minimum standards of acceptable police conduct in all the circumstances including, inter alia, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or the prevention of the crime and any imminent danger to the community.

82. A case which illustrates the type of conduct of law enforcement officers that might properly be regarded as falling below the minimum standard of acceptable police conduct is R. v. Mack[13]. In that case the accused successfully argued that the trial judge erred in rejecting his defence of entrapment. The police and their agent had repeatedly harassed, intimidated and tempted the accused, a former drug dealer, to engage in certain conduct in relation to drugs which led to his being charged with the possession of them for the purpose of trafficking. In the circumstances applicable to that case, the Supreme Court of Canada held that the defence of entrapment was available to the accused. In analysing the distinction between deceitful conduct of the police in the pursuit of their duties which is "acceptable" in the sense that it does not fall below the minimum relevant standard and conduct which is not so "acceptable", Lamer, J. (who wrote the judgment of the court) said this[14]:

"There is a crucial distinction, one which is not easy to draw, however, between the police or their agents - acting on reasonable suspicion or in the course of a bona fide inquiry - providing an opportunity to a person to commit a crime, and the state actually creating a crime for the purpose of prosecution. The former is completely acceptable as is police conduct that is directed only at obtaining evidence of an offence when committed (see Amato, supra, per Estey J., at p.446). The concern is rather with law enforcement techniques that involve conduct that the citizenry cannot tolerate. In many cases the particular facts may constitute a classic example of what may be referred to as `entrapment' which has been described by an American judge as `the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer' (Sorrells v. United States, [1932] USSC 174; 287 U.S. 435 (1932), at p.454, per Roberts J., cited by Dickson C.J. in Jewitt, supra, at p.145)."

86. Although entrapment is not recognised as a substantive defence in Australia (Ridgeway[15]) entrapment by the police may nevertheless be relied on to make out illegal or improper conduct on their part[16]. In the circumstances that prevailed in Mack it would be understandable if it were held that the conduct of the police was below the minimum standard of acceptable police conduct and was, thus, improper. The circumstances in the present case are, however, radically different from those which prevailed in Mack.

89. Another case where it was held that the conduct in question fell below the minimum standard expected of the police, is Dau v. Emanuele[17]. In that case, however, most of the relevant conduct of the person who induced the accused to commit the offence in question took place before he became a police agent and at a time when there was no basis for suspecting that the applicant intended to commit that offence. Again, the circumstances of that case were materially different from those prevailing here.

92. The taped discussions between the applicant and Vallas make it clear that Vallas did not engage in harassing or intimidating or manipulating the applicant so as to induce or procure him to commit the offence (although Vallas intentionally gave him the opportunity to commit it). This is not surprising given that it was the applicant who, in effect, came to Vallas in his capacity of a corrupt policeman and later sought his advice as to how he should go about recovering the debt from Zulic and eventually requested him to blackmail Zulic. The conversations between the applicant and Vallas made it clear that, in the end, what interested the applicant most was to work out a way in which Zulic would be prevented from leaving Australia. Not surprisingly, he sought advice as to this from a person who he believed was a corrupt policeman who had a working knowledge of law enforcement. It was the applicant who first suggested that if Zulic were prevented from leaving Australia that might force him or his New York associates to pay the money. He said:

"Maybe we should approach it this way. These people overseas are desperate for him [Zulic] to leave. If he can't leave Australia - if we were to keep him here for - for any reason - if it's possible - now how would the people overseas pay up or ... you reckon?"

It is clear that this idea had been present to his mind prior to this meeting. He told Vallas that he was aware from having spoken to the relevant parties in New York that they were desperate to have Zulic attend their meeting. It is obvious that the applicant believed that keeping Zulic in Australia would exert the maximum amount of pressure on Zulic or his associates to pay him the $1.35m. It is also clear on the material that the applicant was single-minded in his pursuit of this aim. For instance, when he asked Vallas: "which [was] the best way to go?" (to keep Zulic in Australia), to which Vallas did not respond but went back to the suggestion of exerting physical pressure on Zulic, it was the applicant who brought Vallas back to the idea of keeping him in Australia and then pursued the matter in detail. As his Honour said, the applicant was not a passive listener. When Vallas said that Zulic would have to be charged with "something", it was the applicant who suggested that the charge might be failing to reimburse him for his payment of Zulic's telephone bill. Not surprisingly, Vallas explained that the charge had to relate to theft or deception or "something like that". It was broadly in that context that the applicant suggested that relevant goods be "planted" at Zulic's premises. Once the theme of "planting" in Zulic's house was raised, Vallas developed the details of how Zulic would be prevented from leaving Australia and at the following meeting Vallas was told to proceed with his plan. Even at that point the applicant did not remain passive. He directed Vallas not to mention anything to Zulic (after he was arrested) about his going to New York but to tell him that "If the money is paid you can go".

97. To the extent that it could be said that Vallas misled the applicant about the role of Vallas and provided him with the opportunity to commit the relevant offence, it was well open to his Honour to find that, in the circumstances, such conduct was not inconsistent with the minimum standard of acceptable police conduct. It is relevant to have regard to the context in which the applicant dealt with Vallas. It was the applicant who, in effect, sought out Vallas. Moreover, it was the applicant who told Vallas after the transaction concerning the firearms charges was completed, that he might require his services in relation to other transactions, including collecting money which he then said amounted to $1m from a then unnamed person. Against that background it was not a matter of Vallas pressing himself or his services on the applicant. Indeed, the whole purpose of the meetings between them was to enable the applicant to exploit the services of Vallas. It was important that he should play, convincingly, the role of a corrupt policeman.

100. There are other circumstances which are relevant to the question whether Vallas had acted improperly. First, the nature and extent of the criminal activity in which the applicant intended to engage could have had serious consequences for law enforcement. It concerned the bribing of a senior policeman to use his position unlawfully in order to advance the interests of the applicant. Such a crime, when committed, is not easy to detect and is even more difficult to anticipate and prevent. Secondly, Vallas and his superior had reasonable grounds on which to hold a suspicion that the applicant intended to bribe a corrupt policeman to abuse his office. In this respect, their position was quite unlike that of the senior Commonwealth public servant in Dau who had no reasonable basis for apprehending that the accused intended to bribe him, yet induced him to commit that offence by deliberately disclosing to him commercially sensitive information to the disadvantage of the Commonwealth and then "spinning a web of deceit, including heavy hints, for the purpose of inducing [the accused] to commit an offence"[18].

103. Further, in the circumstances, the launching of the undercover operation which would necessarily involve the practice of deceit by Vallas was lawful and justified. It is in the interests of proper law enforcement that the police take appropriate steps to catch out the person who was suspected of intending to commit the crime, before the crime is committed and the mere fact that this will involve deceit does not make their conduct unlawful or improper. As Stephen and Aickin, JJ. said in Bunning v. Cross[19]:

"There is no initial presumption that the State by its law enforcement agencies, will in the use of such measures of crime detection observe some given code of good swordsmanship or of chivalry. It is not fair play that is called in question in such cases but rather society's right to insist that those who enforce the law themselves respect it, so that a citizen's precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may remain unimpaired."[20]

Similarly, it was appropriate in the circumstances that the undercover operation should continue beyond its originally intended phase. It will be recalled that it resulted from the applicant's request that Vallas might use his position to further the applicant's other interests, the first being the blackmailing of Zulic to secure payment to the applicant of $1.35m. It was within the ambit of Vallas' duties as a policeman to investigate and deal appropriately with the new threatened crime and to that end, use his apparent position of a "bent" policeman to provide the applicant with the opportunity to commit the offence in question.

108. Thus, to use the words of Callaway, J.A. in R. v. Bernath[21], "[t]his was not a case of the serpent's beguiling or of a trap for the unwary innocent as opposed to a trap for the unwary criminal." Unlike the law enforcement officer in Mack, Vallas did not "create the crime". Given that and the other circumstances to which I have referred, it is my opinion that it was open to his Honour to find that Vallas had not acted below the minimum standard of propriety expected or required of a policeman.

111. Thus, Mr. Thomas**'** challenge to his Honour's findings must fail.

114. But even if it is assumed that Vallas acted unlawfully or improperly or both in his dealings with the applicant and procured the commission of the offence in question and thus his Honour's decision to exclude the evidence of the taped conversations was vitiated, the discretion enlivened thereby should not be exercised to exclude the evidence in question on the grounds of public policy. As I have already mentioned, in my view, the nature and extent of the applicant's criminal activity were significant, while the conduct of Vallas, assuming it to be illegal or improper or both, was not of the same or comparable gravity. In the circumstances, balancing against one another the two competing public policy considerations to which reference has been made, the public interest in bringing to justice those who seek to gain from bribing corrupt police officers to abuse their positions would outweigh the public interest in not sanctioning the unlawful and improper conduct of the type assumed to have been committed by Vallas in this case.

117. Consequently, I would dismiss the application.

[1] [1998] HCA 1; (1998) 192 C.L.R. 159

[2] [1995] HCA 66; (1995) 184 C.L.R. 19

[4] as to whether it is a single discretion or two discretions, see 37-8.

[5] [1970] HCA 21; (1970) 126 C.L.R. 321 at 334-5

[6] [1978] HCA 22; (1978) 141 C.L.R. 54

[10] A phrase used by Frankfurter, J. in Sherman v. United States [1958] USSC 87; (1958) 356 US 369 at 383.

[11] The common law offence of incitement was abolished by s.321L.

[12] at 37; see also Bunning v. Cross at 75

[13] (1998) 2 SCR 903; 44 CCC (3rd.) 513

[17] (1995) 60 F.C.R. 270

[20] See also Brennan, C.J. in Swaffield at 185-186

[21] [1997] 1 V.R. 271 at 277