Varley v Attorney General

Varley v Attorney General (NSW) (1987) 8 NSWLR 30 Eastman v DPP (ACT) [2003] 214 CLR 318 Application of Rendell (1987) 32 A Crim R 243 Application of Moore (2000) 112 A Crim R 331 Re Pedrana (2000) 117 A Crim R 459 CASES CITED : Application of Pearson [1999] NSWSC 143 Application of El Hani [2007] NSWSC 330 R v Toro-Martinez [2000] NSWCCA 216 Mallard v Regina (2005) 224 CLR 125 R v Mawbey (1796) 6 RT 619 MacKenzie v The Queen (1996) 71 ALJR 91 R v Toro-Martinez (Ainslie-Wallace DCJ, 5.11.99)

PARTIES : Alexjandro Arturo TORO-MARTINEZ (Applicant)

SOLICITORS : Ms T Inverarity, (Commonwealth Attorney-General)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HALL J : 1 The applicant, Alejandro Arturo Toro-Martinez, has made application by letter addressed to the Registrar of this Court dated 14 October 2005 seeking an inquiry into his conviction following his plea of guilty on 26 November 1999 to a charge under s.233B(1)(d) of the Customs Act 1901 (Cth) of being knowingly concerned in the importation of not less than a trafficable quantity of cocaine. 2 The applicant referred in his application to an inquiry "under s.464 of the Commonwealth Crimes Act", however, the application is to be dealt with pursuant to s.78 Crimes (Appeal and Review) Act 2001 ("the Act") (formerly s.474D Crimes Act 1900 (NSW)).

Recent correspondence 3 In a letter dated March 2007, the Attorney-General's Department, Criminal Justice Division set out comments on the application. The Department submitted that it was not apparent that there was a doubt or question as to Mr Toro-Martinez's guilt, as to any mitigating circumstances in his case or as to any part of the evidence in the proceedings against him such as would satisfy the requirements of s.79(2) of the Act. The letter attached a copy of a letter dated 5 March 2007 written by the applicant addressed to Mr Lacey, Criminal and Bail Matters, Supreme Court of New South Wales. On 26 October 2007 the Department wrote to the Registrar of the Court in response to a letter from Mr Lacey dated 24 April 2007 providing an opportunity to comment further on submissions made by Mr Toro-Martinez. The respondent made further submissions in its last-mentioned letter.

The statutory scheme for review 4 The provisions contained in Part 13A (ss.474B - 474N) Crimes Act 1900 were repealed and re-enacted as Part 7 (ss.76 - 88) Crimes (Appeal and Review) Act 2001 on 23 February 2007. An application made pursuant to Part 13A before the repeal and transfer of that Part that had not been finally determined under that Part immediately before its repeal, is taken to be an application under the corresponding provision of Part 7 of the Crimes (Appeal and Review) Act 2001: clause 13, Schedule 1, Crimes (Appeal and Review) Act 2001. 5 Sections 78 and 79 Crimes (Appeal and Review) Act 2001 provide as follows:-

(1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.

(2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister.

79 Consideration of applications (1) After considering an application under section 78 or on its own motion:- (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or

(b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.

(2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.

(3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if:- (a) it appears that the matter:-

(i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or

(ii) has previously been dealt with under this Part or under the previous review provisions, or

(iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or

(iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and

(b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.

(3A) The Supreme Court may defer consideration of an application under section 78 if:-

(a) the time within which an appeal may be made against the conviction or sentence (including an application for leave to appeal) is yet to expire, or

(b) the conviction or sentence is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or

(c) the application fails to disclose sufficient information to enable the conviction or sentence to be properly considered.

(4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application.

(5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application)."

Legal Principles 6 In accordance with s.79(4), the application by Mr Toro-Martinez under s.78 of the Act is not a judicial proceeding and in determining the application, the Court exercises administrative power: Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48-50; Eastman v Director of Public Prosecutions (ACT) [2003] 214 CLR 318 at 362.

7 The test to be applied in determining an application is, whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.79(2) of the Act. This view may be formed where the material causes the judge considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley (supra) at 35, 48; Application of Rendell (1987) 32 A Crim R 243 at 245; Application of Moore (2000) 112 A Crim R 331; Re Pedrana (2000) 117 A Crim R 459. 8 The application of Mr Toro-Martinez relates to a conviction pursuant to Commonwealth legislation. The jurisdiction of this Court to hear an application pursuant to s.78 Crimes (Appeal and Review) Act 2001 (previously s.474D Crimes Act 1900 (NSW)) was confirmed in the decision of Wood CJ at CL in Application of Pearson [1999] NSWSC 143; see also Application of El Hani [2007] NSWSC 330 per Johnson J. This Court may receive and consider an application from a federal offender pursuant to s.79 of the Act, but only in order to determine whether or not to refer the case pursuant to s.79(1)(b) to the Court of Criminal Appeal to be dealt with under the Criminal Appeal Act 1912. The direction of an inquiry pursuant to s.79(1)(a) is not available for offenders falling under Commonwealth legislation.

9 The background to the application is conveniently set out in the respondent's submissions dated 22 March 2007, as follows:- "Following a National Crime Authority (NCA) investigation (known as Operation Columbia), Mr Toro-Martinez was charged with being knowingly concerned in the importation of a trafficable quantity of 655.2 grams of cocaine contrary to s.233B(1)(d) of the Customs Act 1901. This charge arose out of the importation of plastic folders impregnated with cocaine. An issue arose in the prosecution proceedings as to the circumstances surrounding the obtaining of controlled operations certificates under section 15M of the Crimes Act 1914 (Cth). Some of the envelopes containing the cocaine had been intercepted by NCA officers prior to the issue of the first controlled operation certificate.

Mr Toro-Martinez sought a permanent stay of his prosecution of this charge. Her Honour Judge Ainslie-Wallace dismissed the application for a permanent stay on 5 November 1999 after finding that 'none of the evidence which was the subject of the voir dire was either improperly or illegally obtained'…

On 26 November 1999, Mr Toro-Martinez pleaded guilty to the charge and was sentenced [by Ainslie-Wallace DCJ] to three years and six months imprisonment with a two year non-parole period commencing from 9 June 1998, the date of his arrest … Notwithstanding his plea of guilty, Mr Toro-Martinez appealed to the Court of Criminal Appeal against his conviction and the CDPP appealed against the sentence on the ground of manifest inadequacy.

The Court of Criminal Appeal dismissed Mr Toro-Martinez's appeal against conviction and upheld the appeal against sentence. The Court imposed a head sentence of six years, commencing on 9 June 1998, with a non-parole period of three years. Mr Toro-Martinez was eligible for release on parole on 8 June 2001 and his head sentence expired on 9 June 2004.

On 6 July 2001, Mr Toro-Martinez sought review of a decision by the NCA denying him access to certain tapes and transcripts which he had sought under the Freedom of Information Act 1982. That decision was affirmed by the Administrative Appeal Tribunal (AAT) on 31 January 2003 on the basis that to make available any existing tapes or transcripts would reasonably be expected to disclose lawful methods of detecting or investigating matters arising out of breaches of the law."

10 As the chronology of events set out above indicates, at the time of making the present application, Mr Toro-Martinez had served the sentence imposed by the Court of Criminal Appeal in respect of his conviction on the charge to which the application relates (i.e. for the offences committed between 18 and 20 December 1996). 11 Mr Toro-Martinez's current imprisonment arises from his conviction in relation to an unrelated offence, being the importation of 2.698kg of cocaine, by courier from South America on 15 December 1996 and collected by associates of Mr Toro-Martinez who were arrested in Cairns on 20 December 1996. In relation to that offence Mr Toro-Martinez was charged on 9 February 2000 with being knowingly concerned in the importation into Australia of a commercial quantity of cocaine. He was convicted under s.233B Customs Act on 25 February 2002 and he was sentenced on 26 July 2002 in the District Court of New South Wales by Hock DCJ to imprisonment for twelve years and six months, to commence on 9 June 2001 and expire on 8 December 2013. He will be eligible for release on parole on 8 June 2008.

12 The respondent submitted that given that the applicant's sentence for the conviction to which this application relates has been served, "…any inquiry pursuant to s 474D might be of no practical benefit. Nevertheless, Mr Martinez is still serving time for a second offence and it is an open question as to whether his application could bear upon that." (Submissions 22 March 2007). Notwithstanding the fact that the sentence imposed by the Court of Criminal Appeal has been served, I consider that the Court's jurisdiction under the Act can and should be exercised so as to determine the application that has been made.

13 The application by way of letter to the Registrar of this Court dated 14 October 2005 attached the following materials:-

(a) Martinez and National Crime Authority , Administrative Appeals Tribunal, Decision and Reasons for Decision, 31 January 2003;

(b) Martinez and National Crime Authority , Administrative Appeals Tribunal, Transcript of Proceedings, 9 December 2002;

(c) Commonwealth Director of Public Prosecutions v Martinez , Magistrate Brydon, 15 February 1999, Transcript of Committal Proceedings;

(d) National Crime Authority Statement of David James Frewin dated 5 January 1998 in the matter of Cardona-Reinoso;

(e) Copies of correspondence between the applicant and Senator the Hon Christopher Ellison, Minister for Justice and Customs, Senator for Western Australia;

(f) Letter from the Commonwealth Department of Public Prosecutions to the applicant dated 22 September 1998 responding to a request for further and better particulars; and

(g) Schedule that summarises the details of the relevant parcel deliveries including to whom each of the parcels were addressed and date of each delivery. 14 Besides the application and materials mentioned above, the applicant submitted the following additional materials:

(a) Letter from the applicant to Mr Mark Lacey, Manager Client Services, Criminal & Bail Matters, Supreme Court of New South Wales, dated 21 November 2006 attaching copies of the applicant's correspondence with other parties;

(b) Letter from the applicant to Mr Mark Lacey, Manager Client Services, Criminal & Bail Matters, Supreme Court of New South Wales, dated 12 February 2007 attaching copies of the applicant's correspondence with other parties;

(c) Letter from the applicant to Mr Mark Lacey, Manager Client Services, Criminal & Bail Matters, Supreme Court of New South Wales, dated 5 March 2007 containing further submissions in relation to the application and attaching copies of the following materials:- (i) Documentation with respect to Operation Columbia and control operation certificates issued; (ii) Letter from Commonwealth Department of Public Prosecutions to the applicant dated 22 September 1998, attaching schedule that summarises the details of the relevant parcel deliveries including to whom each of the parcels were addressed and date of each delivery; (iii) Letter from Attorney-General's Department to the applicant dated 27 November 2002 in response to the applicant's request under the Freedom of Information Act 1982 ; (iv) Commonwealth Director of Public Prosecutions v Martinez , Magistrate Brydon, 15 February 1999, extract of Transcript of Committal Proceedings; (v) Letter from Commonwealth Department of Public Prosecutions to the applicant dated 18 February 2003 in response to the applicant's request under the Freedom of Information Act 1982 ; (vi) R v Alejandro Arturo Toro-Martinez , 29 October 1999, Judgment of Ainslie-Wallace DCJ (on subpoena for production of material); (vii) Letter from Australia Post to the applicant dated 17 January 2003 in response to the applicant's request under the Freedom of Information Act 1982; (viii) Letter from Australian Customs Service to the applicant dated 5 March 2003 in response to the applicant's request under the Freedom of Information Act 1982; and (ix) Copies of the applicant's correspondence with other parties. (x) Letter from the applicant to Mr Mark Lacey, Manager Client Services, Criminal & Bail Matters, Supreme Court of New South Wales, dated 19 April 2007, containing further submissions in relation to the application and attaching copies of the following materials:- • Copy of letter to Mr Mark Lacey, Manager Client Services, Criminal & Bail Matters, Supreme Court of New South Wales, from the applicant dated 5 March 2007; • Commonwealth Director of Public Prosecutions v Martinez , extracts of Transcript of Proceedings, 10 March 1999, 29 October 1999; • Copies of various materials previously provided by the applicant as set out above; and • Copies of the applicant's correspondence with other parties. 15 By way of response, the Australian Government Attorney-General's Department, the respondent, have provided written submissions dated 22 March 2007 and further written submissions dated 26 October 2007.

Grounds of the application 16 The applicant bases his application primarily upon a number of grounds, which may be summarised as follows:- (a) In his letter dated 14 October 2005 to the Registrar of this Court, Mr Toro-Martinez submitted that evidence given by Robert Ferris Lovett (Liaison Officer at the former NCA) before the Administrative Appeal Tribunal on 9 December 2002 conflicts with the evidence given by Michael Ralph Purchas (Chief Investigator of the former NCA) at the applicant's committal hearing on 15 February 1999, and accordingly, that Mr Purchas had committed perjury and thereby perverted the course of justice. It is submitted that the effect of Mr Purchas' evidence was that arrangements had been made with Customs Service and Australia Post in relation to interception of the relevant parcels. The effect of Mr Lovett's evidence was, that in response to a request from the applicant under the Freedom of Information Act 1982, he did not find any documents relating to or records of communications in that regard to be held by the NCA.

(b) In his letters to this Court dated 5 March 2007 and 19 April 2007, the applicant submitted further material in support of his application. The applicant submitted that Mr Purchas committed perjury when he gave evidence that the NCA had sought advice from the Commonwealth Director of Public Prosecutions ("CDPP") and the Attorney-General's Department ("AGD") regarding the need to obtain controlled operations certificates. The applicant made requests of the CDPP and AGD under the Freedom of Information Act 1982 seeking material relating to NCA's requests for advice. The CDPP replied to Mr Toro-Martinez stating that it did not possess any record that NCA had made such request or that CDPP had given such advice. The AGD stated to Mr Toro-Martinez that it had no material to provide, and in its letter noted that AGD had been advised by Mr Purchas that the advice was provided orally from CDPP to the NCA, that it had not been reduced to writing and that therefore there are no records of it.

(c) The applicant raises issues relating to exclusion of evidence on the basis of investigative impropriety. He submitted that evidence gathered in Operation Columbia should have been inadmissible as some of the envelopes containing the cocaine were intercepted by NCA officers without controlled operation certificates in place.

Matters concerning the perjury allegation 17 In the applicant's original letter to the Registrar dated 14 October 2005 there was a single ground identified for the application. That was expressed in terms that documents received by him as a result of proceedings in the Administrative Appeals Tribunal revealed that evidence of Mr Lovett of the former National Crime Authority had "conflicted with that of… Mr Michael Purchas… during my Committal Hearing [15 February 1999]". It was contended that this evidence "further indicates" that Mr Purchas had committed perjury at the committal proceedings. It was said that such evidence at the committal stage had perverted the course of justice. In his letter dated 5 March 2007 the applicant referred to "more information". This included letters from the Attorney-General's Department and from the CDPP (referred to as "fresh evidence"). 18 In this letter it was further contended that the matters to which reference was made would have resulted in Ainslie-Wallace DCJ having ruled in his favour. Before proceeding further it is as well to note that Ainslie-Wallace DCJ in her judgment dated 5 November 1999 dealt with the bases for the stay application (page one of the judgment). Each of these were said to have as a foundation that evidence had been manufactured or contrived by "officers of the executive pursuant to an unlawful or illegal investigation contrary to due process of law and public policy." 19 The Court of Criminal Appeal in R v Toro-Martinez [2000] NSWCCA 216, Spigelman CJ delivered judgment on 7 June 2000. Spigelman CJ referred to the stay application and an application for exclusion of evidence and observed "each on the basis of the involvement of the authorities in the importation and the subsequent dealing with the imported cocaine. Upon the application being rejected, Mr Toro-Martinez changed his plea from guilty to not guilty." (paragraph 2). Accordingly, the alleged participation of the authorities in the importation and the dealing by them after importation was examined in terms of the alleged illegality and impropriety. 20 In considering whether the specific evidence of Mr Purchas which is said to have "conflicted" with that of Mr Lovett, would have had the effect for which Mr Toro-Martinez contends, namely, that Ainslie-Wallace DCJ would have decided the application favourably to him, it is necessary to clearly identify that application in the context of the case.

Factual matters determined by Ainslie-Wallace DCJ 21 In her judgment given on 5 November 1999, the relevant facts were collected under the heading "Background". It is here sufficient to state that in July 1995, a person known as "Warren" (a registered informant for the then National Crime Authority) received a letter from one Castro-Vargas. That person had served a term of imprisonment for importation of cocaine and had been released and was deported to Columbia in June 1995. The letter indicated that Castro-Vargas had a way of sending things to "Warren" by mail and he wanted Warren to contact him. 22 "Warren" made contact with the National Crime Authority and he was told by an officer of that Agency to maintain contact with Castro-Vargas to see what he was talking about. 23 Following receipt of the letter from Castro-Vargas, Warren telephoned him in July 1995. Castro-Vargas made it clear to Warren in that call that he was proposing to send cocaine to Warren in Australia. Warren indicated a willingness to be involved. 24 In August 1995, a further letter was received from Castro-Vargas who indicated that he proposed to send two parcels to the accused which would contain 25 grams of cocaine in each. He also stated that he required US$10,000 so that he could send somebody to Australia to give Warren a kilogram of cocaine. This conversation was reported to Officer Purchas who told Warren to maintain contact. 25 In November 1995, Warren arranged for a drug dealer named Sim to make $10,000 available to be sent to Columbia to Castro-Vargas. In consultation with the NCA and pursuant to a request from Castro-Vargas, Warren sent him a list of names and addresses to which he said Castro-Vargas could send further letters. The addresses were, in the main, false and NCA officers seized the parcels as they arrived at the various addresses. Some 23 parcels were received in this way. Each contained a plastic sheet impregnated with cocaine. 26 A further letter was received from Castro-Vargas in which he asked for more money to enable him to travel to Australia. In December 1995, Warren wrote to Castro-Vargas and indicated that he had purchasers in Australia who would pay $50,000 per kilogram and who had $200,000 to spend. There were, in fact, no purchasers with money to buy drugs and Warren agreed in evidence that this had been a fabrication. 27 In November and December 1996, Warren was contacted by a person known as Maurice. In November 1996, Warren was again contacted by Maurice and told to telephone a person known as "Campo". Warren was told by Maurice that a person known as "the chemist" would arrive and he would contact Warren. Warrant was instructed to hand the plastic sleeves to that person in batches so that the cocaine could be extracted from them. A meeting was arranged at which Warren and an undercover officer were present. This officer was known as "Chris". 28 On 18 December 1996, Warren and Chris met with "the chemist" and a person by the name of Cardona and they were introduced to the accused. At this meeting it was said that the accused gave Chris a list of chemicals and equipment which were, apparently, required for the extraction process. 29 Chris arranged for the chemicals and equipment to be provided and hired a truck to deliver them to the accused. Eventually, a number of shredded plastic sheets were handed to the accused. 30 A problem arose in relation to chemicals that had been supplied by officers and on 20 December 1996, Officer Purchas made inquiries with the Government Analytical Laboratories to seek clarification about the chemicals which had earlier been provided. 31 In November 1996 and in December 1996, Officer Purchas was granted two certificates pursuant to s.15M of Part 1AB of the Crimes Act 1914 (Cth). 32 In her judgment, Ainslie-Wallace DCJ stated that she did not accept the submission that but for the actions of the officers there would have been no importation. She noted that Castro-Vargas had made the overture to Warren and that as Warren stated, Castro-Vargas needed no encouragement to send cocaine to Australia. A reading of the letters confirmed that fact. 33 Ainslie-Wallace DCJ concluded that she could not find that the officers involved in Operation Columbia committed the offence of being knowingly concerned in the importation of cocaine.

The appeal 34 As Spigelman CJ observed in the appeal, that the case against the applicant was concerned with a quantity of 655.2 grams of pure cocaine in a controlled delivery. Importantly, whatever illegalities were alleged against officers involved in the delivery had nothing to do with the elements of the crime alleged against Mr Toro-Martinez. Spigelman CJ at [14] observed that:- "The improprieties or illegalities allegedly committed by the authorities consisted of a range of acts over a period from July 1995 to December 1996. For almost the whole of this period, the Appellant had no participation in any relevant crime. It was a feature of the illegality alleged in the present case that it does not impinge in any respect on the involvement by the Appellant in the criminal enterprise. No inducement, trick or entrapment was employed by any representative of the authorities which involved the Appellant in any way. Rather, it is suggested, that certain aspects of conduct by the authorities meant that the actual importation and some subsequent steps within Australia were in some manner determined, or at least influenced by, such conduct. However, none of those acts influenced the Appellant to participate in the crimes. The submission appears to be that, but for that official conduct, the specific importation in which the Appellant was "knowingly concerned", on his own admission , would not have occurred." (emphasis added)

35 The importance of these observations is that whatever 'officers' (including Mr Purchas) did or said about the facts related to the controlled operations and associated procedures, those operations had no bearing on Mr Toro-Martinez and his culpability as reflected in his guilty plea. This, in particular, is relevant to what may be termed the "controlled operation issue". 36 This is also fundamental to the issues raised in the present application for there is no basis for the contention that any assumed 'conflict' between Mr Purchas and Mr Lovett could have any bearing upon Ainslie-Wallace DCJ's determination as the applicant asserts. The nexus between the controlled operation(s) and the applicant's participation in the criminal enterprise which the applicant assumes existed did not exist in fact.

The issue of alleged perjury 37 In his letter to the Registrar of this Court dated 14 October 2005, the applicant submitted that:- "Upon scrutiny of [documents relating to the applicant's freedom of information proceedings in the AAT] I realised that a miscarriage of justice had occurred, due to the fact that the testimony by Mr Robert Ferris Lovett (Liaison Officer at the NCA)… conflicted with that of the (previous) testimony by Michael Purchas (Chief Investigator of the NCA) during my Committal Hearing that took place 15th February 1999. This further indicates that Chief Inspector Purchas had committed Perjury during my Committal Hearing and therefore Perverted the Course of Justice." (sic) 38 In his letter dated 5 March 2007 to this Court, the applicant submitted that Ainslie-Wallace DCJ had been under the impression that the NCA officers had been "acting in good faith", and, "Had Judge Ainslie-Wallace been aware of the tainted evidence and that all the parcels arrived in Queensland and not intercepted in Sydney as claimed in the certificates authorising a Controlled Operation her ruling would have been in my favour". 39 The applicant attached a schedule that summarised the details of the persons to whom each of the relevant parcels containing cocaine were addressed and the date of each delivery, which he submitted established that:- "the first 14 parcels arrived without the protection of a Controlled delivery Certificate and without any letters of exception from Australian Customs which was a requirement under the Transitional arrangements (Section 15X), therefore there was no retrospective protection for the agents or the registered informant under procedural fairness. The operation started in 1995 and the first certificate was not issued till 15 November 1996 and ceased to be in force 14 December 1996, since the certificate had no retrospective effect the actions concerned to the previous 14 parcels and previous importations during this operation could not be covered."

40 The applicant also submitted the following:- "Judge Ainslie-Wallace erred when she recommended that the Commonwealth DPP obtain immunity from prosecution in the state of Queensland for the registered informant by the Commonwealth Attorney General in order for him to be able to testify. I also think that judge Ainslie-Wallace was under the impression that Australia Customs and Australia Post had been notified therefore she assumed that the officers were acting in good faith. Had she been aware that Chief Inspector Michael Purchas and Investigator David James Frewin have committed perjury on the committal hearing her conclusions on voir dire and judgment Friday 5th November 1999 would have been different." (sic)

41 The applicant in his letter dated 5 March 2007 submitted that the two letters he obtained under the Freedom of Information Act 1982 from the CDPP and the AGD, should be considered "fresh evidence", citing in support of his submissions the decision in Mallard v Regina (2005) 224 CLR 125.

42 The applicant submitted that this Court should assess "… whether, firstly, the conduct of Chief Inspector Mr Purchas was wilful perjury or faulty recollection in order to justify a lack of operational plan and/or secondly, whether I was given procedural fairness under the "fresh evidence" procedures." (Letter dated 5 March 2007). 43 The applicant further submitted that, "The fact that the National Crime Authority did not notify Australia Post makes the statements made by Mr Purchas during the October 10th 1999 committal hearing an act of perjury." (Letter dated 19 April 2007). 44 The allegation of perjury was submitted by the applicant to arise from the cross-examination of Mr Purchas by counsel appearing for Mr Toro-Martinez at the committal hearing, Mr J Weller. During cross-examination, Mr Weller asked Mr Purchas questions regarding the parcels intercepted as part of Operation Columbia that contained plastic folders which had been impregnated with cocaine, as follows (Commonwealth DPP v Alejandro Arturo Toro-Martinez, Magistrate Brydon, 15 February 1999, pp 56-57):- "Q. You arranged the interception of parcels? A. Yes.

Q. Who did you arrange that with? A. Customs Service and Australia Post.

Q. Who did that? A. A number of people, but exactly who I don't recall.

Q. Did you apply for some sort of exemption? A. Well, no because we were intercepting. We were not going to let a continuance of a criminal offence, we were taking this cocaine off the street as it arrived.

Q. But of course that didn't happen in all cases did it? A. I don't follow your question…

Q. Well the brief suggests that packages, parcels did arrive, and Mr Warren brought them to you, to the NCA?... A. I understand your question now, no. The interception failed on a number of occasions but still when Mr Warren got those packages they were taken off the street…

Q. So prior to the first package arriving, the controlled operations legislation was in place, and you knew of that? A. I'm not sure of the dates, no.

Q. Well the first package arrived on 19 September '96 and the legislation came in in July '96? A. On the what date, the first one?

Q. July '96? A. And the first package arrived?

Q. The first package arrived on 19 September? A. '96?

Q. Two months later? A. Yeah, my recollection is that once we were aware of the Act coming in we wrote to the Federal DPP for advice, and subsequently we were advised to take out a certificate for abundant caution, that's my recollection.

Q. So you did do that, didn't you? A. Yes …"

45 Mr Toro-Martinez's allegation of perjury arises as a result of the conflict he alleges between the evidence of Mr Purchas, set out above, and the evidence given by another NCA officer, Mr Lovett, during proceedings in relation to freedom of information before the AAT on 9 December 2002. In those proceedings, Mr Toro-Martinez sought production under the Freedom of Information Act 1982 of amongst other things, any and all files, documents, correspondence, letters between the NCA, the Australian Customs Service and Australia Post relating to Operation Columbia. 46 In the AAT proceedings, Mr Lovett gave evidence to the effect that he had found no letters, documents, reports or file notes or records of such communication between the NCA and the two agencies. He also stated that he had found no reference to communication at all between the NCA, Customs or Australia Post concerning the impending arrival and proposed interception of the envelopes in question (Alejandro Martinez and National Crime Authority, Transcript of proceedings, AAT, 9 December 2002, pp 22-23). Following Mr Lovett's evidence in those proceedings, the AAT deduced that such materials did not exist, but it did not proceed to make a finding as to the matter (Martinez and National Crime Authority [2003] AATA 88, Senior Member Allen at [7]). 47 The applicant submitted that during the voir dire, Ainslie-Wallace DCJ was under the impression that Australia Post and Customs had been notified about Operation Columbia and that she therefore assumed Mr Purchas and Mr Frewin were "acting in good faith". The applicant also submitted that had Ainslie-Wallace DCJ been aware of the "tainted" evidence and that the cocaine packages arrived in Queensland as part of Operation Columbia and not in Sydney, as claimed in the controlled operations certificates obtained by the NCA subsequent to the arrival of the first series of packages, her Honour would not have refused the applicant's motion for a permanent stay of his prosecution proceedings.

48 In relation to this ground, the respondent submitted that:- (a) In giving evidence at the committal hearing, Mr Purchas only agreed "arrangements" had been made by the NCA with Customs and Australia Post, and that these arrangements were made by persons other than himself, therefore he may not have been familiar with the form they took. (b) The fact that Mr Lovett was unable to find any documentation or record relating to communication between the NCA and the two agencies does not mean that such materials never existed or that the arrangements referred to by Mr Purchas were not made. 49 I do not consider that Mr Purchas' testimony is contradicted by the evidence given by Mr Lovett, so as to establish that Mr Purchas committed perjury as alleged by the applicant in this regard. I will elaborate upon the failure of the materials to establish the applicant's allegation below. 50 It is important to observe that Mr Purchas' evidence given on 15 February 1999:-

(b) That he made "arrangements" with "Custom Service and Australia Post";

(c) That he did no make those arrangements personally but they were made by "a number of people." 51 There is no evidence that establishes that Mr Purchas' evidence on these matters was in any respect inaccurate or could be said to have been shown to have been false.

Alleged perjury in relation to the obtaining of advice by the NCA from the CDPP or AGD

52 The applicant submitted that another instance in which perjury was committed by Mr Purchas at the applicant's committal hearing was in relation to his evidence that advice had been sought by the NCA in relation to obtaining controlled operation certificates for Operation Columbia. 53 The extract of transcript from the applicant's committal hearing (Magistrate Brydon on 15 February 1999, pp 56 to 57) is relied upon by the applicant as forming part of the basis for his allegation of perjury against Mr Purchas in relation to the seeking of advice by the NCA from the CDPP or AGD. The applicant relies upon the following evidence of Mr Purchas in particular, and contrasts it with the responses he received from the CDPP and AGD regarding his requests pursuant to the Freedom of Information Act 1982:- "Q. The first package arrived on 19 September? A. '96? Q. Yes? A. And - Q. Two months later? A. Yeah, my recollection is that once we were aware of the Act coming in we wrote to the Federal DPP for advice, and subsequently we were advised to take out a certificate for abundant caution, that's my recollection. Q. So you did do that, didn't you? A. Yes… Q. What was the purpose of applying for the first certificate on the - I think it was 14 November - 15 November '96. Why did you apply for it? A. Well I've in part answered that, that we sought advice from the Federal Attorney-General's Department, and we were told to get one for abundant caution, and then once we had a defined plan we intended to conduct the controlled operations with the cocaine, and that certificate would in fact specifically cover that." 54 The letter dated 18 February 2003 to Mr Toro-Martinez from the CDPP in response to his application pursuant to the Freedom of Information Act 1982, relevantly stated:- "You will note from pages 57 and 58 of the transcript which you attached to your FOI request, that although Inspector Purchas originally stated in court that the NCA sought advice from the Commonwealth DPP concerning the certificate, he corrected his evidence to state that the advice was sought from the Commonwealth Attorney-General's Department. My office was not requested to provide any such advice and did not provide any such advice. Nor, if the Commonwealth Attorney-General's Department did provide the NSW with such advice, did my office obtain a copy of it or of any related correspondence."

55 The letter dated 27 November 2002 to Mr Toro-Martinez from the AGD in response to his application pursuant to the Freedom of Information Act 1982, relevantly stated:- "I am informed by Chief Inspector Purchas of the National Crime Authority (NCA) that the mention of the Attorney-General's Department in the section of court transcript you have provided is actually an error. He has advised that the advice in question was in fact provided by the Office of the Commonwealth Director of Public Prosecutions. He has also advised that the advice was oral advice provided in a conference setting and was not reduced to writing. I understand therefore, that there are no documents in existence relating to the advice."

56 The respondent's submissions on the question of perjury are as follows:- "Even if they remain pertinent given the foregoing discussion, the applicant's claims set out above concerning the impressions formed by Ainslie Wallace DCJ during the voir dire are purely speculative. It is apparent from her judgment that she accepted the testimony of officer Purchas regarding Operation Columbia and the response of the NCA to the importation. It is also clear that she found nothing illegal or improper in the actions of the NCA and her findings were upheld by the New South Wales Court of Criminal Appeal. With respect to the specific substance of the allegations of perjury against officer Purchase, it should first be noted that in his reference to the two letters of AGD of 27 November 2002 and the CDPP of 1 February 2003 the quotation drawn by the applicant from the letter of AGD is not complete. As that letter reveals, Purchas not only advised AGD that he was in error in making the reference in the transcript to the NCA's receipt of advice from that Department he also advised that the advice NCA received was given by the CDPP orally in a conference setting and was not reduced to writing. As the letter also states, it was understood that there are no documents in existence in relation to the advice. Given this, it would appear there is no inconsistency in Purchas's evidence. As noted earlier, CDPP has advised the applicant that it did not give Mr Purchas any advice. It is still possible, however, that oral advice was given. Nevertheless, even if it is taken that no advice was in fact given by either the CDPP or AGD, Purchas's statements on the transcript were given three years after the events in question and were, as he said, based upon his 'recollection'. It is apparent from this and Purchas's reference to two separate organisations as the source of the advice that the NCA received (sic) that he was attempting to recall what he understood to be the facts of the matter and was not intentionally giving false testimony. If anything, Purchas appears to have been confused. As an honest mistake, inadvertence, carelessness or misunderstanding leading to evidence shown to be false does not constitute perjury, it is more unlikely, and would be extremely difficult to establish, that Purchas intentionally gave false testimony. Perhaps most importantly, nothing hinges or hinged upon the receipt of the advice anyway as, regardless of it, the controlled operations certificates referred to were subsequently obtained by the NCA and their acquisition in itself was and is a fact of no consequence to the applicant's eventual conviction. In light of the above and due to considerations of space, it is considered that no submissions need to be made here in respect to the point made by the applicant that the letters of the CDPP and AGD are fresh evidence. It appears that these letters would not have raised a reasonable doubt in a jury's mind as to the guilt of the applicant in relation to the offending with which this Minute has been concerned. But, as the applicant pleaded guilty to the offending anyway, it seems pointless to consider the issue." 57 In relation to the charges of perjury made by the applicant, even if the evidence of Officer Purchas could be said to have been contradicted by evidence later given by others, that, of course, is insufficient to establish a charge of perjury. Perjury is a common law offence and is now also the subject of statutory provisions in Commonwealth and State legislation. The mental element for perjury at common law is that the witness swears to a particular fact knowing it to be untrue, or swears to a fact without knowing at the time whether the fact is true or false: Regina v Mawbey (1796) 6 TR 619, 637. In proceedings by way of prosecution for an offence of perjury, the prosecution at common law must prove that the witness knew that the statement was false or did not believe it to be true. It has been stated that the issue of "belief" allows for the possibility of an honest mistake to be taken into account: MacKenzie v The Queen (1996) 71 ALJR 91 wherein it was stated at 105 (Gaudron, Gummow and Kirby JJ) that "honest mistake, inadvertence, carelessness or misunderstanding leading to evidence shown to be false will not constitute perjury for which a criminal intention must always be proved". Section 35 of the Crimes Act 1914 (Cth) creates the offence of giving false testimony referring, inter alia, to "Any person who … intentionally gives false testimony touching any matter, material in that proceeding …": s.35(1). As stated above, the material relied upon by the applicant in the present application does not provide the essential factual foundation for a finding adverse to Mr Purchas as to the requisite mental element central to the offence of perjury either at common law or under relevant statutory provisions.

Illegality alleged in relation to Operation Columbia

58 The applicant based his claim as to the illegality of certain aspects of Operation Columbia on the following submissions:- (a) Commencing in September 1996, 14 packages arrived in Australia containing the plastic folders impregnated with cocaine at a time when no controlled operations certificate had been obtained by the NCA. The addresses in Queensland to which the packages were sent had been provided to the sender in Columbia by the NCA through an informer, who ultimately collected some of the packages. Subsequent to the arrival of the packages, the NCA obtained two controlled operations certificates for the periods 15 November 1996 to 14 December 1996, and 13 December 1996 to 11 January 1997. (b) No arrangements had been made with Customs Service and Australia Post pursuant to s.15X Crimes Act in relation to the seeking and granting of an exemption from Customs from inspection for the cocaine which was the subject of the operation. (c) Without controlled operations certificates to cover them, the arrival of the packages as part of Operation Columbia and collection of them by the NCA informer breached provisions of the Queensland Criminal Code and the Drugs Misuse Act 1986 (Qld), as well as s.86W(1) of the Crimes Act 1914 . 59 Allegations of impropriety on the part of investigating authorities were raised and relied upon by the applicant in his application for a stay of the prosecution, which was heard and determined by Ainslie-Wallace DCJ. Her Honour's judgment in R v Alejandro Arturo Toro-Martinez was delivered on 5 November 1999. Ainslie-Wallace DCJ fully considered the applicant's arguments in relation to the evidence obtained as part of Operation Columbia being tainted and her Honour ruled against those arguments. 60 In his appeal to the Court of Criminal Appeal (R v Toro-Martinez [2000] NSWCCA 216), the applicant relied on the following two grounds of appeal:- (a) that the learned trial judge erred in law by holding that the officers of the Executive had not knowingly been concerned in the importation of a prohibited import, namely, cocaine from Columbia from July 1995 until December 1996; and,

(b) that the learned trial judge erred in law by holding that officers of the Executive did not commit a number of illegal acts in connection with the relevant operation between July 1995 and December 1996.

61 Spigelman CJ in Toro-Martinez (supra) observed at [33] - [51]:- The nature of the impropriety or illegality alleged in the present case concerned the official involvement with the importation of cocaine into Australia and the subsequent handling. The specific importation in which the appellant was said to be knowingly concerned, was the subject of a controlled delivery organised by the authorities. A second, alternative, basis for this appeal arises from the existence of a certificate under s.15M of the Crimes Act 1914 (Cth). That section is found in the new Part 1AB inserted by the Crimes Amendment (Controlled Operations) Act 1996 (Cth) following upon the decision of the High Court in Ridgeway v The Queen (1995) 184 CLR 19. The effect of the provision is that participation in an importation authorised in this manner does not constitute illegality, relevantly, for purposes of the exercise of the Ridgeway discretion or the parallel discretion found in s.138 of the Evidence Act. The offence with which the appellant was charged took place between 18 and 20 December 1996. There were two certificates obtained under s.15M of the Crimes Act. The first was said to extend from 15 November 1996 until 14 December 1996. The Crown did not rely on that certificate. The Crown relied on the second certificate which was said to cover the period from '13 December 1996 until 11 January 1996'. Before her Honour, and in this Court, the validity and scope of the second certificate was challenged by reason of the reference to 'January 1996' in the second certificate. Her Honour found that the typographical error of inserting 'January 1996' in lieu of 'January 1997' was an immaterial error. I agree. This is the kind of typographical error that often occurs at the end of one calendar or the commencement of a new calendar year. The intent is plain and the error is obvious. Attention was drawn in this Court to the provisions of s.15N and s.15P of the Crimes Act 1914. It was noted that sub-section 15N(2) commencing with the words 'The certificate must …' outlined a series of requirements for a certificate. The introductory words of s.15(2), however, are to be contrasted with the provisions of s.15N(4) which, with respect to the error relevant in the present case, states 'The certificate may specify a day (not later than 30 days after the day on which it was given) as the day on which the certificate is to cease to be in force'. Even with respect to the apparently mandatory requirements of sub-section 15N(2), there is a specific provision in sub-section 15N(5) to the effect:- 'A failure to comply with this section does not affect the validity of the certificate authorising a controlled operation.' There was no basis on which, in my opinion, the typographical error of the date can qualify the validity of the certificate in so far as it specifies a day in accordance with the discretion to do so identified in sub-section 15N(4). … There was, in my opinion, a valid certificate under s.15M. Accordingly, the relevant acts of the authorities with respect to the importation and handling of the cocaine were covered by a valid certificate, namely, the one dated 13 December 1996.

… Her Honour concluded that the officers were not knowingly concerned in the importation of cocaine. This finding of fact was open to her Honour. She added :- 'Had I formed the view that the officers had been knowingly concerned in the importation of cocaine, I am of the opinion that the illegal conduct of the officers would fall within the first category identified in Ridgeway (supra) and in which the decision to admit the evidence needs to be considered against those matters contained within s.138 of the Evidence Act. Without gong to the necessity of listing those factors, I am satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting it.' This passage of her Honour's reasons is attacked as a mere assertion, in breach of her Honour's obligation to provide proper reasons. There is some force in this criticism. However, in the light of her Honour's outline of the facts and submissions earlier in the judgment, it is reasonably clear which are the matters which she took into account. Her Honour was dealing with a submission to the effect but for the involvement of the officers there would have been no importation. In submissions in this Court it was suggested that her Honour fell into error and that the real question was 'Whether but for the actions of the officers the offence with which the appellant has been charged would have taken place?'. Nothing in the evidence before the trial judge, nor in this Court, suggests that any act of the informer or the undercover officers involved in this matter, played any material role in the conduct of the Appellant. The basis on which the alleged improper or illegal activity on the part of the officers could have had an effect on the involvement of the Appellant was that, without such official involvement, there would have been no importation at all. There was an absence of precision, both before her Honour or in this Court, as to what evidence it was which ought to have been excluded. The focus of the allegations of illegality and impropriety were on the act of importation. The other matters referred to were the acquisition of chemicals needed to extract the cocaine from the plastic folders and the steps taken preparatory to extraction. However, even if all the evidence associated with the acquisition or the use of the chemicals had been excluded, that would not have fundamentally undermined the case against the Appellant who was charged with being knowingly concerned in the act of importation. In the absence of any evidence from the Appellant or anyone associated with his defence, the Court cannot speculate about what, if any, effect on his plea may have been occasioned if there had ever been a separate objection to the admissibility of evidence in relation to the acquisition of chemicals and the preparatory steps. On the evidence before the trial judge and this Court, an informer on behalf of the National Crime Authority had engaged in a process of subterfuge with Castro-Vargas who wished to export cocaine to Australia from Columbia. The process included a number of different aspects, including the provision of addresses for the delivery of cocaine parcels, the payment of moneys, the assertion of the existence of a safe distributor, meeting agents of the exporter and the introduction of other undercover agents of the NCA who, in turn, supplied, at the request of those criminally involved, the specific chemicals required to remove the impregnated cocaine. The involvement was, in many respects, tangential and the encouragement, in so far as there was encouragement, was of a minor order. None of the conduct complained of on behalf of the authorities in this case, in my opinion, breaches a standard of impropriety, let alone of illegality, to a significant degree, if at all. Her Honour was entitled to find, as she did find, that even without any official conduct, there would have been an importation. As the officer-in-charge of the investigation, a Mr Michael Purchas, said in his evidence:- 'Cocaine was going to be sent regardless. The idea was to make sure that we associated ourselves enough with the group that we knew where it was to be sent and we were in a position to seize it and to arrest them.' Her Honour was correct to find that this was the character of the involvement. The extent of the encouragement by the authorities through the informer and other involvement was, at the highest, of a low level. I am unable to discern an impropriety or contravention of Australian law to a degree which would justify the exclusion of the evidence. In the circumstances, there is no basis for interfering with her Honour's decision to balance in favour of admission, the desirability of admitting the evidence against any undesirability associated with the way in which the evidence was obtained. Accordingly, I am unable to detect undesirability to the relevant extent which would justify excluding the evidence or interfering with the exercise of the discretion under s.138 by her Honour." (emphasis added) 62 The Court of Criminal Appeal accordingly determined that:- (a) there was a valid certificate under s.15M and the relevant acts of the authorities with respect to the importation and handling of cocaine were covered by a valid certificate; (b) any impropriety or contravention of Australian law was not to a degree which would justify the exclusion of the evidence; and, (c) there was no suggestion that the applicant was innocent of the offence.

63 The respondent submitted in relation to this application, in my view correctly, that, "Allegations of illegal investigative conduct and its legal consequences were fully canvassed before the District Court and the Court of Criminal Appeal". 64 The perjury allegation appears to be the only additional fact or circumstance that, if it had substance, might be regarded as special under paragraph 79(3)(b) of the Appeal and Review Act. As I have stated, there is a lack of evidence necessary to establish the allegations of perjury. 65 The respondent further observed that it is apparent from the face of the controlled operations certificates obtained by the NCA that the packages containing cocaine that had gone to Sydney and Brisbane had been intercepted.

Conclusion 66 Upon consideration of the material provided and the submissions of the parties and for the reasons set out above, I consider that the application made raises no doubt, sense of unease or disquiet with regard to the applicant's conviction. I can see no reason that would require referral of the case pursuant to s.79(1)(b) to the Court of Criminal Appeal. 67 I observe that, even if it was open on the present application to direct an inquiry into conviction pursuant to s.79(1)(a) of the Act, no basis has been demonstrated under s.79(2) for such a direction to be given. 68 I, accordingly, refuse the application.

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