R v TD

Non publication of any information or material that may lead to the identification of any children (s 15A Children (Criminal Proceedings) Act 1987) Decision under appeal Date of Decision: 2013-09-05 00:00:00 Before: Jeffreys DCJ File Number(s): 2012/160490

Judgment 1HOEBEN CJ at CL: I agree with Simpson J. 2SIMPSON J: This is an appeal by the Director of Public Prosecutions ("the Director") against a ruling by Jeffreys DCJ on 5 September 2013, refusing to admit certain evidence proposed to be led by the Crown in a criminal trial. Such an appeal is permitted where the ruling "eliminates or substantially weakens the prosecution's case": Criminal Appeal Act 1912, s 5F(3A). There is no issue in this case that the ruling in question is of that character. This Court accordingly has jurisdiction to hear and determine the appeal. 3The issues raised on the appeal concern an Authority issued under the Law Enforcement (Controlled Operations) Act 1997 ("the LE(CO) Act"). The Law Enforcement (Controlled Operations) Act 1997 4The long title of the LE(CO) Act is: "An Act with respect to the authorisation, conduct and monitoring of certain operations conducted by law enforcement agencies; and for other purposes." 5The LE(CO) Act was introduced into the NSW Parliament following the decision of the High Court in Ridgeway v The Queen [1995] HCA 66; 184 CLR 19. In Ridgeway, the accused was charged with and convicted of an offence against Commonwealth law of possession of a prohibited import (heroin). The importation of the heroin had been facilitated by Malaysian Police with the active cooperation of the Australian Federal Police, in what was termed a "controlled operation". There was no statutory authorisation for such an operation, which involved Australian law enforcement authorities committing, or participating in, the criminal offence of importation of a prohibited narcotic. By a 6-1 majority, the High Court held that evidence of Ridgeway's possession of the heroin was inadmissible. Five members of the High Court reached this conclusion on the basis that the evidence was inadmissible on grounds of public policy; Gaudron J, on the ground that, by illegally importing the heroin, AFP officers had incited or participated in the commission of the offence with which the accused was charged, rendering the proceedings against him an abuse of process. 6The LE(CO) Act was devised as a means of authorising operations such as the "controlled operation" in which Ridgeway was unwittingly involved. It was recognised that a clear line had to be drawn between authorisation of an operation that, on the one hand, might involve the commission of what would otherwise be criminal offences by law enforcement officers (or civilians acting in tandem with law enforcement officers) for the purpose of obtaining evidence of offences that would, at least probably, have been committed in any event; and, on the other hand, inciting or inducing the commission of an offence or offences that would not, absent the incitement or inducement, have been committed. With that balance in mind, the NSW Parliament enacted the LE(CO) Act. 7The LE(CO) Act identifies five separate law enforcement agencies to which it applies, and nominates their various heads as, for the purposes of the LE(CO) Act, Chief Executive Officers. The NSW Police Force is one such law enforcement agency. The LE(CO) Act permits those CEOs to issue Authorities to conduct controlled operations. The process is tightly regulated. 8By s 5 of the LE(CO) Act, a law enforcement officer of a nominated law enforcement agency (including NSW Police Force) may apply to the CEO of that agency for an Authority to conduct a "controlled operation". A "controlled operation" is defined as meaning an operation conducted for the purpose of: "(a) obtaining evidence of criminal activity or corrupt conduct, or (b) arresting any person involved in criminal activity or corrupt conduct, or (c) frustrating criminal activity or corrupt conduct, or (d) carrying out an activity that is reasonably necessary to facilitate the achievement of any purpose referred to in paragraph (a), (b) or (c), being an operation that involves, or may involve, a controlled activity." "Controlled activity" is defined as: "... an activity that, but for section 16, would be unlawful." 9By s 6 of the LE(CO) Act, the CEO of the agency may refuse the application, or may grant the Authority, either unconditionally or subject to conditions. By s 6(2) an Authority may not be granted unless a code of conduct is prescribed by the regulations in relation to the agency in question. 10Further, the CEO of the agency is required, by s 6(3), to be satisfied as to certain specified matters, and, by sub-s (4), to have regard to certain specified matters before granting an Authority. 11Section 7 (particularly s 7(1)) is an important provision, and has particular relevance to the present appeal. Section 7(1) is in the following terms: "(1) An authority to conduct a controlled operation must not be granted in relation to a proposed operation that involves any participant in the operation: (a) inducing or encouraging another person to engage in criminal activity or corrupt conduct of a kind that the other person could not reasonably be expected to engage in unless so induced or encouraged, or (b) engaging in conduct that is likely to seriously endanger the health or safety of that or any other participant, or any other person, or to result in serious loss or damage to property, or (c) engaging in conduct that involves the commission of a sexual offence against any person." Section 7(1)(a) gives effect to recognition of the distinction mentioned above - the goal being to obtain evidence of offences that would, even without the controlled operation, have been committed, but to avoid conduct that would itself provoke the commission of an offence or offences that would not otherwise have been considered. 12Section 8 specifies the form which an Authority must take, and requires the inclusion of certain specified information. Of particular relevance to the present appeal, sub-s (2) of s 8 requires that the Authority must identify the nature of the controlled activities in which the proposed "law enforcement participants" may engage. A "law enforcement participant" in an authorised operation is a participant in the operation who is a law enforcement officer (s 3). "Law enforcement officers" include police officers (s 3). 13By s 13 the effect of an Authority is to authorise each law enforcement participant to engage in the identified controlled activities; by s 13A procedural defects do not invalidate any application for or grant of an Authority, other than those that affect the substance of the application. 14Section 16 is in the following terms: "Despite any other Act or law, an activity that is engaged in by a participant in an authorised operation in the course of, and for the purposes of, the operation is not unlawful, and does not constitute an offence or corrupt conduct, so long as it is authorised by, and is engaged in in accordance with, the authority for the operation." (italics added) The italicised words are important. Section 16 affords protection to participants in authorised criminal activities, but only to the extent of the Authority. Departures from the authorised activity do not attract the protection of s 16. By s 3 an "authorised operation" is: "... a controlled operation for which an authority is in force ..." 15At the relevant time the Law Enforcement (Controlled Operations) Regulation 2007 (now replaced by the Law Enforcement (Controlled Operations) Regulation 2012) contained, in Sch 2, a code of conduct applicable (by cl 10 of the Regulation), to all law enforcement agencies, including the NSW Police Force. Relevantly, cl 5 of the code of conduct provided: "Each law enforcement participant in an authorised operation must take all reasonable steps to ensure that the conduct of the operation does not involve any participant in the operation: (a) inducing or encouraging another person to engage in criminal activity or corrupt conduct of a kind that the other person could not reasonably be expected to engage in unless so induced or encouraged, or (b) engaging in conduct that is likely to seriously endanger the health or safety of that or any other participant, or any other person, or to result in serious loss or damage to property, or (c) engaging in conduct that involves the commission of a sexual offence against any person, or (d) engaging in any activity that, not being a controlled activity, is unlawful." It will be seen that, to a substantial extent, cl 5 of the code of conduct replicates s 7(1) of LE(CO) Act, and reinforces the distinction between operations designed to produce evidence of criminal activity, and those which go beyond evidence gathering and themselves provoke the commission of criminal offences.