The contestable assumptions on which the s138 issue was addressed
44 There are vital threshold issues that received scant attention in the District Court and not much more in the submissions to this Court.
45 Section 138(1) enacts a qualified prohibition on the admission of evidence of a particular character. The section's relevance, if any, to the present trial concerned its potential to exclude a band of evidence vital to the prosecution, ie the evidence relating to the "controlled buys" organised by the police with Brown's cooperation. This evidence lay at the heart of the prosecution. It was to come from Brown and from the police officers who corroborated his testimony.
46 The inadmissibility of that broad band of evidence, absent a valid Authority under the Act, was simply assumed.
47 It was not, I think, suggested that Brown's evidence was itself obtained improperly or in contravention of law (cf s138(1)(a)). Rather, the submission was that Brown's evidence had been obtained "in consequence of an impropriety or of a contravention of an Australian law" (cf s138(1)(b)) on the part of Detective Furlonger. This certainly was the way in which the s138 issue should have been addressed.
48 There was no exploration about the point (if any) at which the Ridgeway principles intersected with the facts of this case. Rather, it was generally assumed that the Crown evidence would be inadmissible by force of the invalidity of the Authority, which was itself assumed to be invalidated if a breach of the Code of Conduct were established. In deference to his Honour I emphasise that this was the way the matter was presented and argued at trial.
49 There appear to be several doubtful steps, if not fallacies, in this reasoning.
50 First, there is no clear analogy between the type of illegality involved in Ridgeway and the police-initiated conduct in the present case. In Ridgeway, importation of the prohibited drug was required to be proved, yet this illegal step had been performed solely by a law enforcement officer. The present case, by contrast, involved no more than proof of the appellant's own unlawful conduct. It was the type of evidence regularly encountered in criminal trials without the necessity of being sanctioned pursuant to the Act. The appellant's activities in supplying Brown were those of the "unwary criminal" and not those of the "unwary innocent" (cf Ridgeway at 37, 50, Salem (1997) 96 A Crim R 421 at 429-30), but (unlike Ridgeway) they were his own activities. The onus lay upon the appellant to establish that illegal or improper conduct produced the challenged evidence (R v Coulstock (1998) 99 A Crim R 143, R v Dalley (2002) 132 A Crim R 169).
51 But let it be assumed that Brown's evidence was itself the product of illegal or improper conduct on his and/or the police's part (cf Salem). Such an assumption may have been correct and it was certainly the way in which the matter was argued in the District Court and in this Court. However, the second issue needing to be addressed was identification of the impropriety or illegality that triggered the application of the qualified prohibition in s138(1). Such identification was vital so that the court could properly engage in the process contemplated by the section as a whole.
52 The argument in the District Court proceeded on the basis that the relevant triggering event was the contravention of the Code of Conduct which in turn invalidated the Authority. But the Act contains no provision non-compliance with which amounts to a relevant "impropriety or … contravention" arguably engaged by s138(1). The Act establishes a regime whereby the potential impact upon the admissibility of evidence of an irregularity or contravention arising elsewhere can be negated by establishing that the evidence was obtained in the course of an operation duly authorised in accordance with the Act's detailed procedures (see esp ss13 and 16). If, as Coolahan DCJ held, the Deputy Commissioner's Authority was invalid by reason of non-compliance with the Act then the shield of the Act was removed. This would bring s138 of the Evidence Act into play, but only if and to the extent that the substantive evidence sought to be adduced by the Crown was itself obtained improperly or illegally.
53 This is really another way of making the first point, but the particular matter here emphasised is the difficulty of applying the criteria in s138 without clearly and correctly identifying the impropriety or illegality tainting the admissibility of evidence in accordance with s138(1).
54 Some of the primary judge's reasoning and some of the submissions in this Court elided the assumed impropriety or illegality of the transactions in which Brown purchased heroin from the appellant with the contested impropriety of Detective Furlonger's conduct in failing to comply with the Code of Conduct under the Act.
55 A third problem lies within the four corners of the Act. It too was glossed over in the first judgment and barely addressed in this Court. Yet the failure to deal properly with it tends to undermine not only the conclusion in the first judgment but also the focus and conclusions in the second judgment.
56 In this Court, the appellant made it plain that he did not contend that Detective Furlonger's contravention of cl 1 of the Code represented illegal conduct in the sense of "contravention of an Australian law" within s138(1). His submission was that officer's misconduct was an impropriety that operated to invalidate the Authority issued by the Deputy Commissioner. The argument was that Detective Furlonger's failure to indicate that Brown was a heroin addict meant that the Authority issued by the Deputy Commissioner was itself invalid, in accordance with principles of administrative law.
57 This argument also involves large steps that I would not be prepared to take as presently advised, although it is unnecessary to reach a concluded position on the matter. In my view, it is highly debatable whether an applicant's breach of the Code of Conduct would in itself spell invalidity for an Authority that subsequently issued. In the first place, there would appear to be a very large causation question which would need to be considered and which, in the present case, was barely explored. Secondly, nothing in the Act points to an applicant's breach of the Code being in itself a basis for invalidating an Authority. There is no such express indication. Section 6(2) does not condition validity upon compliance with the Code. Section 6(3) (which sets out the matters of which the chief executive officer is to be satisfied) contains no reference to the Code. Thirdly, s13A (set out above) severely curtails the types of matters relevant to establishing the invalidity of an authority. Its precise scope need not be considered in this appeal, but certainly cannot be overlooked generally.
58 The appellant's argument (if correct) suggests that any breach of the Code by an applicant would spell automatic invalidity for the Authority that is granted in response to it. This, to say the least, lies ill with the Act's pains to condition an Authority upon the chief executive officer's satisfaction about a limited range of matters (none of which refer to the Code), backing this up with a provision making the officer's certificate conclusive evidence of that satisfaction (s27). Section 20(5) of the Act also suggests the possibility that the consequences of breach of the Code of Conduct may have been expressly addressed in the context of exposing the delinquent officer to disciplinary proceedings.
59 All of these matters indicate that the legislation does not express a purpose that any and every act done in breach of the Code by the applicant officer should spell the invalidity of an Authority (cf Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 389-91).
60 As indicated, the Crown accepted (both in the District Court and in this Court) that Judge Coolahan's first judgment triggered the prohibition in s138 of the Evidence Act, subject to proper exercise of the judicial discretion conferred by that section. I am content in this appeal to proceed on this basis, while strongly doubting its correctness.