Ridgeway v The Queen

Ridgeway v The Queen - [1995] HCA 66 - HCA 1995 case summary — Zoe

[24]

Moreover, the two principal considerations weighing against the recognition of a judicial discretion to reject evidence of an offence procured by illegal conduct on the part of law enforcement officers were also the principal considerations which weighed against the recognition of the discretion to reject unlawfully procured evidence. The first of those considerations is that to which reference has already been made, namely, the legitimate public interest in the conviction of those guilty of crime. In Ireland and Bunning v Cross, that consideration was rightly seen as not justifying a denial of the existence of a discretion to exclude unlawfully procured evidence but as constituting the primary factor to be put in the balance against the considerations favouring a rejection of the evidence in determining how the discretion should be exercised in all the circumstances of a particular case. It should be similarly seen in relation to a discretion to exclude evidence of an offence procured by unlawful conduct. The second of those considerations lies in the separation, under our system of the administration of criminal justice, of executive and judicial functions. The function of determining whether, in the circumstances of a particular case, a criminal prosecution should be initiated and maintained is essentially that of the Executive. The function of hearing and determining the prosecution, when initiated and while maintained, is that of the courts. Nonetheless, it has long been established that, once a court is seized of criminal proceedings, it has control of them and may, in a variety of circumstances, reject relevant and otherwise admissible evidence on discretionary grounds [30] or temporarily or permanently stay the overall proceedings to prevent abuse of its process. [31] One such discretion is the discretion to exclude unlawfully procured evidence on public policy grounds. That discretion is properly to be seen as an incident of the judicial powers vested in the courts in relation to criminal matters. Neither its existence nor its exercise involves any intrusion into the exclusive sphere of the Executive. Nor, in our view, does the existence or exercise of a judicial discretion to exclude, on public policy grounds, all evidence of an offence or an element of an offence procured by unlawful conduct on the part of law enforcement officers.

[27]

Insofar as they are used as instrumentalities in the administration of criminal justice, the federal courts have an obligation to set their face against enforcement of the law by lawless means or means that violate rationally vindicated standards of justice, and to refuse to sustain such methods by effectuating them. They do this in the exercise of a recognised jurisdiction to formulate and apply "proper standards for the enforcement of the federal criminal law in the federal courts," McNabb v United States [37] , an obligation that goes beyond the conviction of the particular defendant before the court. Public confidence in the fair and honorable administration of justice, upon which ultimately depends the rule of law, is the transcending value at stake. Subsequently [38] , Frankfurter J quoted with approval the substance of the following passage from the opinion of Roberts J in Sorrells [39] : The doctrine [ie of entrapment] rests, rather, on a fundamental rule of public policy. The protection of its own functions and the preservation of the purity of its own temple belongs only to the court. It is the province of the court and of the court alone to protect itself and the government from such prostitution of the criminal law. The violation of the principles of justice by the entrapment of the unwary into crime should be dealt with by the court no matter by whom or at what stage of the proceedings the facts are brought to its attention. In our view, the reasoning in those minority opinions and in the minority opinions of Douglas J (Brennan J concurring) and Stewart J (Brennan and Marshall JJ joining) in United States v Russell [40] provides persuasive support for the recognition in this country of a judicial discretion to exclude evidence of an illegally procured offence analogous to the Bunning v Cross discretion to exclude illegally procured evidence. 1. R v Dugan (1984) 2 NSWLR 554; Hunt v Wark (1985) 40 SASR 489; R v Vuckov and Romeo (1986) 40 SASR 498; R v Romeo (1987) 45 SASR 212 at 218-220; R v D'Arrigo [1994] 1 Qd R 603; R v Stead [1994] 1 Qd R 665; R v Venn-Brown [1991] 1 Qd R 458; R v Papoulias [1988] VR 858; cf R v Hsing (1991) 25 NSWLR 685; R v Thompson & Thompson (1992) 58 A Crim R 451; Coward v The Queen (1985) 16 A Crim R 257; R v Weston and Lee (unreported; Supreme Court of Tasmania; Crawford J; 11 July 1991). 2. (1932) 287 US 435 at 453-459. 3. (1958) 356 US 369 at 378-385. 4. Sorrells v United States (1932) 287 US 435 at 457; Sherman v United States (1958) 356 US 369 at 385. 5. (1958) 356 US 369 at 380. 6. (1943) 318 US 332 at 341. 7. Sherman (1958) 356 US 369 at 385. 8. (1932) 287 US 435 at 457. 9. (1973) 411 US 423 at 436ff, 439ff.

[36]

In what has been written above, the existence of the Bunning v Cross discretion to exclude illegally procured evidence has been relied upon as supporting, by way of analogy, the recognition of a discretion to exclude evidence of an illegally procured offence or an element thereof. It is arguable that the preferable view is that the two discretions are not distinct and independent but represent complementary aspects of a single discretion which encompasses them both. Regardless of whether that be so, there is, at the least, a broad correspondence between the considerations, both positive and negative, to which regard should be had by a trial judge in determining whether the challenged evidence should be excluded in a case where either discretion exists and is invoked. Those considerations were identified in judgments in this Court in cases in which the Bunning v Cross discretion was established and explained [55] . The relative weight to be given to them will vary according to the circumstances of the particular case. Thus, the weight to be given to the public interest in the conviction and punishment of those guilty of crime will vary according to the degree of criminality involved. The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence - the public interest in maintaining the integrity of the courts and in ensuring the observance of the law and minimum standards of propriety by those entrusted with powers of law enforcement - will vary according to other factors of which the most important will ordinarily be the nature, the seriousness and the effect of the illegal or improper conduct engaged in by the law enforcement officers and whether such conduct is encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings. When assessing the effect of the illegal or improper conduct, the relevance and importance of any unfairness either to a particular accused or to suspected or accused persons generally will likewise depend upon the particular circumstances [56] . Ordinarily, however, any unfairness to the particular accused will be of no more than peripheral importance.

[40]

References in this judgment to an offence being "procured" by illegal conduct on the part of law enforcement officers are intended to refer to two distinct, but possibly overlapping, categories of case. The first category consists of cases in which the police conduct has induced an accused person to commit the offence which he or she has committed. In that category of case, the public interest in the conviction and punishment of those guilty of crime is likely to prevail over other considerations except in what we would hope to be the rare and exceptional case where the illegality or impropriety of the police conduct is grave and either so calculated or so entrenched that it is clear that considerations of public policy relating to the administration of criminal justice require exclusion of the evidence. The other category of case is where illegal police conduct is itself the principal offence to which the charged offence is ancillary or creates or itself constitutes an essential ingredient of the charged offence. An example of that category is a case where a person is charged with receipt or possession of stolen property in circumstances where not only the supply, but the actual theft, of the stolen property had been organised by the police for the purpose of obtaining the conviction of the person to whom it is supplied [58] . In that category of case, the police illegality and the threat to the rule of law which it involves assume a particularly malignant aspect. Even in such a case, if the police conduct is disowned by those in higher authority and criminal proceedings have been instituted against the police as well as the accused, it is unlikely that considerations of public policy relating to the integrity of the administration of criminal justice would require the exclusion of evidence either of the accused's offence or of the particular element of it created by the police illegality. If, however, the illegal police conduct would appear to be condoned by those in higher authority and it does not appear that criminal proceedings have been brought against the police, those considerations of public policy will be so strong that an extremely formidable case for exclusion will be raised. Indeed, if the courts were prepared to allow curial advantage to be derived from the police illegality in such circumstances, there could be no satisfactory answer to Macrossan CJ's rhetorical question [59] "at what point would it ever be appropriate to demur and offer objection?"

[73]

Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion. In Bunning v Cross, Stephen and Aickin JJ [86] clearly distinguished the discretion to exclude evidence for unlawfulness from the discretion to exclude evidence for unfairness to the accused: 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. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration. The purpose of the discretion to exclude evidence on the ground of unfairness is to ensure a fair trial for the accused; the purpose of the discretion to exclude evidence on the ground of unlawfulness is not to ensure a fair trial but to ensure that the conviction of the alleged offender is not bought at too high a price by reason of curial approval of - if not reward for - illegal conduct on the part of the law enforcement agency. 1. (1978) 141 CLR 54. 2. (1970) 126 CLR 321 at 335. 3. Bunning v Cross (1978) 141 CLR 54 at 74-75.

[87]

Assistant Superintendent Chong committed the crime of importing the heroin into Australia in contravention of s 233B(1)(b) of the Customs Act in order to create one of the elements of the offence with which it was hoped to charge Ridgeway and with which he was in fact charged under s 233B(1)(c) of the Customs Act. Assistant Superintendent Chong's crime was intentional, it was committed in execution of a settled and deliberate policy on the part of the Australian Federal Police, it was a grave offence for which the Parliament has prescribed a maximum penalty of a fine not exceeding $100,000 or imprisonment for a period not exceeding twenty-five years, or both [100] . To admit evidence of the commission of that offence in order to establish as against Ridgeway that the heroin of which he and Harvey were in possession had been imported into Australia in contravention of the Customs Act by Assistant Superintendent Chong would be an encouragement to the Australian Federal Police to continue to flout the Parliament's unqualified prohibition against the importation of heroin, especially in trafficable quantities (that is, 2 grams) (Sch VI). This was not a case where the evidence related to the conduct of the offender; it was a case where the offender was charged by reason, inter alia, of the criminal conduct of an agent of the Australian Federal Police. All evidence of the illegal importation ought to have been excluded by the trial judge [101] . If all evidence of illegal importation had been excluded, the prosecution could not have succeeded. If the evidence had been excluded, either the Crown would have entered a nolle prosequi or there would have been a verdict of acquittal by direction. As the evidence was not excluded and Ridgeway was convicted, the appropriate order to make is to allow the appeal and therefore to quash the conviction. There is no other option. Once the appeal is allowed, the mandatory provisions of s 353(2) of the Criminal Law Consolidation Act 1935 SA govern the order to be made. It reads:

[167]

See, eg, R v Hsing (1991) 25 NSWLR 685 at 689; R v Venn-Brown [1991] 1 Qd R 458 at 467; Hunt v Wark (1985) 40 SASR 489 at 492; R v Vuckov and Romeo (1986) 40 SASR 498 at 511; R v Romeo (1987) 45 SASR 212 at 218, 239 (cf at 227); R v Papoulias [1988] VR 858 at 863; Coward v The Queen (1985) 16 A Crim R 257 at 260-261, 267-268; R v Steffan (1993) 30 NSWLR 633 at 643. 2. See, eg, R v Vuckov and Romeo (1986) 40 SASR 498 at 510-511; R v Romeo (1987) 45 SASR 212 at 218, 239 (cf at 227); R v Papoulias [1988] VR 858 at 863; R v Steffan (1993) 30 NSWLR 633 at 643. See also R v Hsing (1991) 25 NSWLR 685 at 689-690. 3. See, eg, R v Sloane (1990) 49 A Crim R 270 at 272; R v Hsing (1991) 25 NSWLR 685 at 696; R v Yooyen (1991) 57 A Crim R 226 at 234; R v Thompson & Thompson (1992) 58 A Crim R 451 at 453-454; R v Steffan (1993) 30 NSWLR 633 at 643. See also R v Vuckov and Romeo (1986) 40 SASR 498 at 522. 4. See, eg, Hunt v Wark (1985) 40 SASR 489 at 492-493; R v D'Arrigo [1994] 1 Qd R 603 at 609, 610-611; R v Vuckov and Romeo (1986) 40 SASR 498 at 514, 523-524; R v Romeo (1987) 45 SASR 212 at 218-220, 239; R v Venn-Brown [1991] 1 Qd R 458 at 466-469; R v Papoulias [1988] VR 858 at 863-864; Coward v The Queen (1985) 16 A Crim R 257 at 261, cf at 263-264, 265-267; R v Weston and Lee (unreported; Supreme Court of Tasmania; 11 July 1991), per Crawford J. See also R v Dugan [1984] 2 NSWLR 554 at 558-559, 563-564. See further R v Pethig [1977] 1 NZLR 448 at 450; Police v Lavalle [1979] 1 NZLR 45 at 48; R v Katipa [1986] 2 NZLR 121 at 125. 5. R v Sloane (1990) 49 A Crim R 270 at 273. See also R v Hsing (1991) 25 NSWLR 685 at 693, 696; R v Thompson & Thompson (1992) 58 A Crim R 451 at 454; R v Steffan (1993) 30 NSWLR 633 at 643. See further, R v Chow (1987) 11 NSWLR 561 at 568; R v Yooyen (1991) 57 A Crim R 226 at 234; Hunt v Wark (1985) 40 SASR 489 at 493; R v Vuckov and Romeo (1986) 40 SASR 498 at 522-523; Coward v The Queen (1985) 16 A Crim R 257 at 260; R v Venn-Brown [1991] 1 Qd R 458 at 469.

[254]

If the courts of justice are to prevent the entrapment of offenders becoming abuses of their processes, the courts need to impose stringent conditions on the use of entrapment techniques. In a society predicated on respect for the dignity and the rights of individuals, noble ends cannot justify ignoble means [233] . Governments are the agents of the people. Since the enactment of the Australia Act 1986 UK, the powers of government in this country are derived from the people who are the ultimate sovereign [234] . No government in a democratic state has an unlimited right to test the virtue of its citizens [235] . Testing the integrity of citizens can quickly become a tool of political oppression and an instrument for creating a police state mentality [236] . Moreover, when the authorities use entrapment techniques that induce a person to commit an offence, they increase the incidence of crime. That being so, the use of an entrapment technique can only be justified when there is reasonable suspicion that the person so induced would have committed that offence or some similar offence, or the technique has been used in the course of a bona fide investigation of criminal or suspected criminal activity and has ensnared the accused. Furthermore, if crime is not to be artificially increased by entrapment techniques, the nature of the inducement cannot go beyond what is likely to be replicated in carrying out the criminal activity in question [237] . The State can justify the use of entrapment techniques 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 [238] . But once the State goes beyond the ordinary, it is likely to increase the incidence of crime by artificial means. The courts of justice cannot countenance the use of their processes to prosecute offences that in substance have been artificially created by the misconduct of those whose duty is to uphold the law.

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