(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law."
29 The Court of Criminal Appeal has itself considered the operation of s 138 of the Evidence Act in recent times. In R v Camilleri [2007] 68 NSWLR 720 (McClellan CJ at CL, Bell and Howie JJ) reinforced the views expressed by Howie J in R v EM [2003] NSWCCA 374, to the effect that s 138 is concerned with balancing public interests. McClellan CJ at CL (with whom the other members of the Court agreed) said at 727 (31): -
"The fundamental concern of the section is to ensure that, if the law has been breached, or some other impropriety has been involved in obtaining evidence, this is balanced against the public interest in successfully prosecuting alleged offenders. The competing interests are obedience to the law in the gathering of evidence and enforcement of the law in respect of offenders. In R v EM (at 74), Howie J said:
'The discretion under s 138 is similar to that which was described in R v Swaffield (1998) 192 CLR 159 as the public policy discretion at common law. Of course, there is a significant difference between the discretion under s 138 and that at common law: the section requires that the Crown persuade the Court to admit evidence that was improperly or unlawfully obtained. But just as at common law, the public policy discretion was distinct and separate from the unfairness discretion, so the discretion to admit evidence under s 138 is a distinct and separate discretion from that arising under s 90. The two discretions may overlap but they are not synonymous. Section 138 is not, in its terms at least, concerned with the Court ensuring a fair trial for the accused. Certainly that is not a paramount consideration when exercising the discretion. The discretion exercised under s 138(1) seeks to balance two competing public interests, neither of which directly involves securing a fair trial for the accused."
30 Considering the matters stipulated in s 138(3), McClellan CJ at CL said at (35):
"This case is to be distinguished from a situation where evidence is obtained by police in knowing breach of the law or, where they may be reckless as to whether or not it has been lawfully obtained. Where the breach of the law is innocent, and the alleged offence serious there must be powerful countervailing considerations before the evidence should be rejected. The fact that the evidence is of high probative value will weigh in favour of its admission."
31 There are several earlier first instance judgments in the Common Law Division of the Supreme Court that I have also found helpful. The first is that of Adams J in Director Public Prosecutions v Coe [2003] NSWSC 1 May 2003. In that decision, Adams J examined the common law principles, which had preceded the introduction of the section. He also examined the discussion by the Australian Law Reform Commission in its Interim Report on Evidence (No 26) of the issues sought to be addressed by s 138. Although his Honour was principally concerned with the meaning to be given to the word "obtained" in s 138(1), he also gave consideration to the general principles, which underpinned the public policy discretion, reflected both at common law and in the section of the Evidence Act. Adams J referred to a passage in Robinett v Police (2000) 78 SASR 85; 116 A Crim R 492 where Bleby J had cited Lobban (2000) 112 A Crim R 357 per Martin J (with whom Doyle CJ and he agreed). The passage is at 367 where Martin J said: -
"In my opinion however the history of the public policy discretion has been centred upon the discretion being enlivened only when the evidence is obtained by unlawful, improper or unfair conduct on the part of law enforcement authorities. In identifying the rationale for the existence of the discretion, the High Court and other authorities have emphasised the importance of preventing the courts from being 'demeaned' by the use of the 'fruits of the illegality' or being used 'to effectuate the illegal stratagems of law enforcement agents or persons acting on their behalf'. The focus is thus upon bringing the administration of criminal justice into disrepute through the use of the courts in this manner. The courts have not undertaken the role of supervising the conduct of law enforcement authorities generally in circumstances divorced from any attempt by those authorities to use the courts to further the aims of their unlawful, improper or unfair conduct".
32 Adams J thought this statement of the position was "plainly correct". His Honour added however: -
"But I would not interpret this passage as doing anything more than restating the principle that the courts will not allow themselves to be manipulated into condoning crimes or serious improprieties by law enforcement officers or their agents, as is made clear by the concluding sentence."
33 A second decision which I have found particularly helpful is that of Howie J in an interlocutory judgment Regina v Richard Bruce Cornwell Supreme Court, Common Law Division (unreported 20 February 2003). In that case his Honour was considering an application by the accused in that trial to hold that the evidence obtained as a result of the use of a listening device was inadmissible under s 138 of the Evidence Act. The basis of the ruling sought was that the evidence had been obtained in consequence of an impropriety by the investigating officers. The alleged impropriety was said to have been a misstatement in the affidavit in support of the warrant.
34 Howie J held that the evidence had not been obtained as a result of an impropriety and that the particular misstatement, seen in the context of the affidavit as a whole, led him to the view that all that was involved was an inadvertent mistake in an otherwise carefully drawn affidavit. His Honour held that such conduct could not alone be reasonably be regarded as improper, notwithstanding the significance of swearing an affidavit in support of a Listening Device Warrant. His Honour also found that there was no causal connection between the impropriety alleged and the obtaining of the impugned evidence. At para 20, his Honour said: -
"I am of the view that, otherwise than when sub-sections 138(2) or s 139 apply, the court should determine whether the section in engaged having regard to the particular facts and circumstances before it but with due regard to the seriousness of a finding that evidence was obtained improperly or as a consequence of an impropriety and the outcome of such a finding. Not every defect, inadequacy, or failing in an investigation should result in a finding that the section applies merely because it may be considered that, as a result of those defects inadequacies or failings, the investigation was not properly conducted or that the police did not act properly in a particular respect. On the other hand the terms of sub-section 138(3)(e), which sub-section requires the court to take into account whether the impropriety or contravention was deliberate or reckless make it clear that the conduct need not necessarily be wilful or committed in bad faith or as an abuse of power".
35 To these two authorities I would also add the reference to the decisions by Johnson J, R v Petroulias [No 8] 2007 NSWSC 82 and R v Petroulias [No 9] 2007 NSWSC 84. They are to like effect. (Although these decisions were involved, as was Cornwell with improprieties, they have a value by analogy in relation to the present issue which is concerned more precisely with an illegality or the actual breach of a statutory provision.)
36 Both Mr Button SC and Mr Lange have addressed the Court on the extent of the probative value of the evidence. Counsel, on behalf of their respective clients, differed somewhat on this point. But the difference is not a major one and I think the matter can be addressed broadly. In my view the probative value is quite high in each case. So too is the importance of the evidence to the Crown case. In the case of Khaled Cheikho, for example, the thrust of the defence case is that he is to be assessed, in terms of the Crown case at least, differently from the other accused, in the sense that he had not been personally involved in the purchase of weapons or chemicals. His association with the other accused, accordingly, in a "training" situation is quite important to the Crown case.
37 The overall approach of Khaled Cheiko's defence is to limit his involvement in the alleged conspiracy. Therefore, I think that evidence of his identification as a person present at this camp, in that context, must also be said to be of reasonably high probative value. In a entirely circumstantial case, evidence of this kind can, in an important way, affect the assessment of the probability of the existence of a fact in issue. This relates to both his physical acts and to his state of mind. In the case of Moustafa Cheikho, it is true that he had already been identified by Ms Bodkin as the driver of the vehicle, and the person who had paid her the money on the relevant day. That may, in one sense, lessen the importance of the evidence, but it does not lessen the probative value of the evidence of his subsequent identification by Mr Cooley. I consider, overall, that the evidence of his identification as a person in attendance at this camp remains of reasonably high probative value.
38 Mr Button fairly accepted that it would have a degree of probative value, but I think that the value of the evidence is higher than counsel was prepared to concede. Neither counsel had anything to say about the nature of the charge involved here. It is obviously of the highest seriousness. The offence carries a maximum penalty of life imprisonment. In both Dally and in Camileri the Court of Criminal Appeal has emphasised the importance of this consideration.
39 An important consideration here relates to the nature of the contraventions. It was not argued that they were deliberate, and indeed the evidence plainly shows that to be so. It was but faintly argued by Mr Lange that they were reckless, in the sense stipulated by the section, but it was certainly put by both counsel that the actions of Snr Constable Toohey, in particular, were negligent.
40 I have had occasion in earlier decisions in this trial, and for that matter in The Queen v Lodhi, where issues of this kind had been raised, to note that there are justifiable criticisms that can be levelled at the investigating authorities because of a failure to properly coordinate investigative activities conducted on a joint basis between the New South Wales Police and Federal Police. In many instances this had resulted in New South Wales Police simply being unaware of the provisions of the Crimes Act 1914. In other situations, and this is a very good example of it, we here have a Federal Agent who was present, but because he was taking a subordinate role and really leaving it to the New South Wales police officer to conduct the procedures, no attempt was made to contemplate or consider drawing Senior Constable Toohey's attention to the provisions of section 3ZP of the Crimes Act.
41 Some responsibility must also be laid at the feet of those who were involved in sending the photos through. I can only assume that it did not occur to any of those persons that there might be some requirement in the Commonwealth legislation that needed to be addressed.
42 But, overall, the view I take is that, while there was a degree of carelessness here, and I am critical of the police for that, I certainly do not consider it was deliberate, and I do not consider that it was reckless. In particular, I do not think that there was any intention or attempt by the police to deny these men the rights that were available to them under the Crimes Act 1914 and, importantly, I do not think that there is any real suggestion in the overall submissions that the integrity of the identification process was affected in this matter by the failure to have separate photographic arrays prepared and presented. Mr Cooley did not have the slightest difficulty in identifying the four men he nominated as being at the camp. Ms Bodkin was very clear and definite in her identification of Moustafa Cheikho.
43 Both of the identifying witnesses had no problem at all in identifying the persons they picked out, and I do not think that there can be any suggestion that, if the proper procedures had been followed, any different result would have occurred.
44 It is not irrelevant, I think, to note that, certainly so far as Mr Waterstreet was concerned, as of yesterday he was prepared to concede that his client had been at the camp, although, as Mr Button said, if the evidence should be excluded, that is if the Crown has not discharged the onus it carried of satisfying the Court that the evidence should be admitted, then there was no reason why his client should not be entitled to take advantage of that situation. The point I am making perhaps is a broader one. It is that this identification issue has really only come up at the last minute, as it were, during the trial. Prior to yesterday when the point arose, it had been tacitly accepted that both Khaled Cheikho and Moustafa Cheikho were present at this camp at Mulga Creek.
45 The only relevance of these latter considerations is that they go to reinforce the conviction I have that the integrity of the process was not in fact affected by the failure to comply strictly with s 3ZP. I certainly would not classify the breaches as technical or trivial, but I do not think that they were so serious as to warrant this reasonably important evidence being excluded on the trial of this offence, serious as it is.
46 I do not think that there is any need to refer to any of the other particular subsections of s 138(3) of the Evidence Act. I accept that the identification processes could have been carried out without contravention of the laws. I accept, as Mr Button has argued, that the police could have sent through booklets in the proper form to enable the section to be complied with. But, overall, it is my view that the contraventions occurred, essentially, through ignorance and inadvertence, rather than as a result of considerations of practicality or timing.
47 I do not imagine that any proceedings of a disciplinary kind have been, or are likely to, be taken in relation to the contravention or contraventions, but I would like to draw the attention of the police to this decision. I ask that the Crown arrange for a copy of this decision to be made available to the relevant authorities. It is quite clear that there needs to be tuition and co-ordination at a high level so that police officers of both State and Federal persuasion understand the requirements of this rather complex legislation and endeavour to meet those requirements in future cases. There is also a strong argument to say that these procedures should be made uniform as between the Commonwealth and the States.
48 All that, however, is rather beside the point. I simply repeat that so far as the matters in s 138(3) are considered, having considered all of the relevant matters, it is clear to me that the Crown has comfortably established that the desirability of admitting the evidence outweighs the undesirability of admitting it, notwithstanding the breaches or possible breaches which may have occurred.
49 In those circumstances, I hold that the evidence should not be excluded and may be admitted at trial.