The Queen v Tore Bjorn Haughbro No. Scc 164 of 1996 [1997] ACTSC 112 (19 December 1997)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   MILES CJ

  

  

   Evidence - admissibility
of evidence of undercover officer to whom illegal
drugs supplied by accused - s.138Evidence Act 1995 (Cth) - whether evidence
"improperly
or unlawfully obtained" - discretion to exclude under s.138 -
discretion under Bunning v. Cross - discretion under Ridgeway v. R
- whether
common law discretions still apply.

  

   Criminal Law - application to stay prosecution on principles of Ridgeway v.
R. - whether s.138 of Evidence Act 1995 (Cth) applies.

  

   Human Rights - whether inducement by undercover police officer of drug
trafficking by former prisoner breaches
International Covenant on Civil and
Political Rights.

  

   Evidence Act 1995 (Cth), sub-s.138(1), sub-s.138(3)

   Australian Federal Police Act 1979 (Cth), s.9 or s.12F

   Acts Interpretation Act 1901(Cth), s.15AB

  

   State of Queensland and Another v. J.L. Holdings Pty Ltd [1997] HCA 1;  (1997) 141 ALR 353

   Bunning v. Cross [1978] HCA 22;  (1978) 141 CLR 54

   Ridgeway v. The Queen [1994] HCA 33;  (1995) 184 CLR 19

   Odgers, Uniform Evidence Laws (1997) 2nd ed.

   Wendo v. R [1963] HCA 19;  (1963) 109 CLR 559

   Tyler v. R (1992) 62 A.Crim.R 241 at 242-6

   Teoh v. Minister for Immigration [1995] HCA 20;  (1995) 183 CLR 273

   Mackellar v. Smith [1982] 2 NSWLR 980

   R v. Salem (unreported, Court of Criminal Appeal of New South
Wales, 3
October 1997)

   ALRC Reports No. 26 and 38

  

  

   CANBERRA, 26-28 November and 1 December 1997 (hearing), 19 December
1997
(decision)

   #DATE 19:12:1997

   #ADD 4:2:1998

  

   Appearances

  

   Counsel for the accused: Mr. B. Collaery

   Solicitors
for the accued: Bernard Collaery & Associates

  

   Counsel for the prosecution: Ms. P. Russell

   Solicitors for the prosecution:
ACT Director of Public Prosecutions

  

  

   THE COURT RULES THAT:

  

  

   1. The evidence of Matthew Johnson be admitted.

  

   MILES CJ

  

   REASONS FOR RULING ON VOIR DIRE AND APPLICATION FOR STAY OF PROCEEDINGS

  

   On 3 December 1996 the accused
was committed for trial. The trial date was
fixed for 26 November 1997 to last three days. Applications by the defence for
disclosure
of material by the prosecution were dealt with at pre-trial
hearings in an effort to ensure both that the trial would commence on
the date
fixed and that the accused would have timely access to all material in the
possession or control of the prosecution upon
which the prosecution wished to
rely or which might bear upon the conduct of his defence.

  

   The accused was arraigned on the
date fixed. He pleaded not guilty and a
jury was empanelled. Application was then made on his behalf for a voir dire
hearing on the
basis that it was expected to establish that a substantial part
of the prosecution evidence had been improperly or illegally obtained
and
should be excluded from the consideration of the jury. Counsel for the
Director of Public Prosecutions conceded that without
such evidence the
prosecution would be bound to fail. In practical terms the trial turned into a
combined voir dire hearing and an
application to permanently stay the
prosecution as an abuse of process.

  

   The voir dire was estimated to last half a day. In
fact it was heard over
four days. The jury were discharged on the second day in order to avoid
inconvenience and further disruption
of the Court's lists. Case management
must give way to the dictates of justice: State of Queensland and Another v.
J.L. Holdings
Pty Ltd [1997] HCA 1;  (1997) 141 ALR 353.

  

   The counts on the indictment were that the accused:

  

  

   1. On 7 March 1996 sold a drug of dependence,
namely methamphetamine, to a
person known as Matthew Johnson.

  

   2. On 7 March 1996 supplied cannabis to a person known as Matthew
Johnson.

  

   3. On 21 March 1996 sold a drug of dependence, methamphetamine, to a person
known as Matthew Johnson.

  

   4.
On 21 March 1996 supplied a traffickable quantity of cannabis to a
person known as Matthew Johnson.

  

   5. On 30 March 1996 supplied
a traffickable quantity of cannabis to a
person known as Matthew Johnson.

   The grounds on which the evidence is sought to be excluded
and the
proceedings stayed relate to what has become known as "entrapment". It is
alleged that the conduct of the accused was induced
by an undercover police
officer who himself participated in the offences alleged to have been
committed by the accused. The evidence
of the commission of the offences is
sought to be excluded upon an application of the principles expounded in
Bunning v. Cross [1978] HCA 22;  (1978) 141 CLR 54 and Ridgeway v. The Queen [1994] HCA 33;  (1995) 184 CLR
19. The stay of proceedings is sought on the principles expounded in the
latter case. However, those cases were
decided on the common law. Since then
the Evidence Act 1995 (Cth) (the Evidence Act) has come into force. Although
it has been said that the Act is "not a 'code' in the technical sense":
Odgers, Uniform Evidence Laws
(1997) 2nd ed. at xxi, the provisions of the
Evidence Act must be recognized and applied. The extent to which the
principles in Bunning v. Cross and Ridgeway go beyond and survive the
provisions
of the Evidence Act awaits authoritative judicial pronouncement and
consideration.

  

   There is an initial question of procedure. In Ridgeway it
was said in the
joint judgment of Mason CJ, Deane J and Dawson J at 40 that "[o]rdinarily the
question whether evidence of an offence
or of an element of an offence should
be excluded pursuant to the discretion to exclude evidence on entrapment
grounds should be
raised and determined in the course of a preliminary
hearing". In my view, it is desirable that the application be made on motion,
supported by affidavit, on a date well in advance of the trial. It is also
desirable that the court, and the prosecution, know whether
the accused admits
the conduct alleged to constitute the offence or whether it is disputed. In
Ridgeway (at 38) it was said that
the "discretion to exclude all evidence will
ordinarily fall to be exercised on the assumption that the offence has been
committed".
If the offence is not admitted, there are obvious difficulties
about whether it should be assumed and about how far the court should
proceed
in relation to finding the relevant facts. Those difficulties do not usually
arise in a voir dire hearing relating to the
admissibility of a confession
unless the truth or otherwise of the confession affects its voluntariness or
the issue of fairness
to the accused or any other issue which may relate to
admissibility or any discretion to disallow otherwise admissible evidence:
Wendo v. R [1963] HCA 19;  (1963) 109 CLR 559.

  

   There may be sensitive questions of prior criminal conduct which also need
to be resolved in relation
to Ridgeway issues. Insofar as the onus lies on the
accused to justify the exercise of discretion to exclude otherwise admissible
evidence, it can hardly be said that there is an onus on the prosecution to
prove the guilt of the accused on previous occasions,
still less with regard
to the offences charged. However, it may be, as Mr. Collaery for the accused,
submitted, that once a prime
facie case is established by the defence that the
police participated in or induced the commission of the offence with which the
accused is charged, then there is an evidentiary burden cast on the
prosecution to prove that the police action was justified by
reason of belief
based on reasonable grounds that the accused had engaged and was engaged in
criminal activity of the kind charged.
If the submission is correct, the
prosecution is required to prove to the satisfaction of the trial judge, on
the balance of probabilities,
that there were reasonable grounds on the part
of relevant police officers that the accused had previously committed a crime
of the
kind charged and, in cases like the present, was likely to continue to
do so. In the absence of such proof, applying s.138 of the Evidence Act and
the principles enunciated in Ridgeway, the evidence of the commission of the
offence should be excluded as evidence illegally
obtained.

  

   UNCONTROVERTED FACTS: ACCUSED SUPPLIES CANNABIS AND AMPHETAMINE TO
UNDERCOVER POLICE OFFICER

  

   The facts
established for the purposes of the present application without
the need to refer to the evidence are as follows.

  

   The accused
was at 9 January 1996 a 53 year old man. He lived in a rented
house at Torrens which he shared with his adult son, John, and a lodger,
Mr.
Gregory Pettit. His admitted sources of income were confined to social
security payments and the proceeds of the sale of timber
products which he
made at home. He also engaged in repair and detailing of motor vehicles from
his home, but it is not clear whether
he made any money out of that activity.
He had previous convictions. On 24 July 1992 he was sentenced to a period of 2
years imprisonment
with a non-parole period of 12 months for an offence of
supplying cannabis. Three days later he was sentenced to three additional
months for an offence of possessing amphetamines. His parole had expired some
15 months before January 1996.

  

   The accused
was acquainted with a woman who gave evidence but known to the
Court only as Sharon. She was, and may still be, addicted to amphetamines.
She
was a police informer on matters relating to drug trafficking in the local
area. (Apparently the police did not put too fine
a point on the distinction
between an informer and an informant.)

  

   The Australian Federal Police and the New South Wales police
were at the
time conducting investigations into drug trafficking in the local area. The
two police forces co-operated with each other
in what they regarded a joint
operation. The investigation by the Australian Federal Police was called
"Operation Ling" and that
by the New South Wales police as "Operation
Explorer".

  

   In the ACT operation one of the officers in charge of the investigation
was
Detective Senior Constable Michael Arnold Chew. He was aware of information
obtained from three separate sources which related
to the accused. One of the
sources was the woman Sharon. I take it that the police were also aware of the
prior criminal record of
the accused. The information obtained from the three
separate sources was given a rating of B2 on a grading system which, within
the Australian Federal Police, meant "usually reliable informant or
information". The information related to the accused dealing
in amphetamines
and cannabis from his premises. The accused was "targeted" for the purpose of
the investigation. A detective constable
in the New South Wales police was
engaged as an undercover agent. He was known for the purposes of the operation
as Matthew Johnson
and gave evidence under that name. He was responsible to a
Sergeant Conwell, who was not called. Johnson was also sworn in as a special
constable in the Australian Federal Police.

  

   Johnson told Sharon that he was interested in buying amphetamines from the
accused.
The accused was known by Sharon to go to the Torrens shops nearby at
the end of a working day. On 9 January 1996 at about 7.30 p.m.
Johnson and
Sharon went to the Torrens shops in a vehicle driven by Johnson. Sharon saw
the accused, stopped him and introduced the
accused and Johnson to each other.
A conversation between the two men followed. It is the subject of dispute. I
shall return to it.

  

   Subsequently Johnson rang the accused at his home and spoke to him on a
number of occasions. He also visited the accused's
home on a number of
occasions. Johnson made notes soon after each telephone conversation, but it
was not until his second visit to
the premises that he was fitted with what
was called in evidence a listening device. It might more accurately be called
a recording
device. In fact it was a small tape recorder. There were
subsequently several conversations between the accused and Johnson which
were
recorded by means of the device. Insofar as the contents of the tapes can be
understood and despite the esoteric nature of the
language used, it is clear
that Johnson and the accused discussed the possibility of Johnson obtaining
some sort of illegal drugs
from the accused.

  

   On 7 March 1966 the accused and Johnson went to the accused's garage where
the accused made available to
Johnson a quantity of white powder later
analysed and found to contain amphetamine. It appears to be common ground that
what is described
in the evidence simply as amphetamine is identical with the
drug of dependence, methamphetamine, which is the subject of two of the
counts
on the indictment. It also appears to be common ground that the mixture
obtained by Johnson from the accused on this occasion
contained 1 to 1.5 per
cent by weight methamphetamine. The exact circumstances are in dispute but it
was admitted by the accused
in his interview with the police and in his
evidence that the powder was weighed on a set of scales in the presence of
Johnson and
that Johnson handed over the sum of $1100 which the accused used
to purchase cannabis at a later date.

  

   It was also admitted
by the accused that on one occasion he supplied a
quantity of cannabis namely, one half to three-quarters of an ounce to
Johnson,
being cannabis that he had kept in his garage. The source of that
quantity of cannabis was a plant grown, with other cannabis plants,
in the
vegetable patch in the accused's backyard. It was supplied to Johnson as a
sample free of charge in response to a request
or requests by Johnson made to
the accused for the accused to supply him with cannabis in bulk. I find that
this act of supply occurred
on 7 March 1996, on the same occasion as the
previously mentioned supply of amphetamines. Those offences are the subject of
the first
and second counts.

  

   On 14 March 1996 Johnson visited the accused's house where there were
further discussions about the accused
obtaining a further quantity of cannabis
"in bulk" and supplying it to Johnson. Johnson pretended that he had a
customer in Sydney
willing and able to pay for a quantity of cannabis of
several pounds. The accused later indicated to Johnson that he had access to
ten pounds of cannabis.

  

   On 21 March 1996 the accused obtained a quantity of cannabis packaged in 16
bags each containing
about one ounce. The accused brought the packages to his
house in two bucket-like containers and supplied those packages to Johnson.
There was discussion about the source of that cannabis, and the accused
supplying a further eight pounds of cannabis to Johnson to
be obtained by the
accused from the same source. At that stage the source was unknown to Johnson.
Johnson paid the accused $6,000
on this occasion.

  

   On 30 March 1996 Johnson was given several thousand dollars cash by his
superior officers in order to consummate
the purchase of the eight pounds of
cannabis from the accused. It was sufficient to cover the estimated cost to
the accused, with
a relatively small margin added for his own profit. Johnson
went to the accused's house and told the accused that he had the money
but
would not pay until the cannabis was produced. The accused then drove to the
Weetangera shops followed by Johnson. They were
under police surveillance. On
arrival the accused left Johnson and went to a rendezvous nearby where he met
his supplier, a man called
Theo Nicholas Panagiotou. This man was initially
reluctant to part with the cannabis until he saw the money. However, stalemate
was
avoided when the accused persuaded him to hand over the eight pounds of
cannabis on the accused's undertaking that he would take
it to his customer,
obtain payment and bring the money back. The cannabis was handed over
accordingly. The accused then returned
to the vicinity of where he had left
Johnson and where Johnson was waiting for him. What happened exactly then is
not clear to me,
but the police moved in and arrested both the accused and
Johnson. The accused's acts are the basis of the supply charged in the
fifth
count.

  

   On those facts, it is established to my satisfaction, on the balance of
probabilities, that the accused and
Johnson were both participants in a series
of events, which if proven beyond reasonable doubt, would result in conviction
of the
accused on the first, second, fourth and fifth counts on the
indictment. They would prove that Johnson was guilty of participating
in the
offences committed by the accused to the extent that he would be regarded as
an aider and abettor. He could also be regarded
as guilty of conspiracy.
Without the participation of Johnson the offences would not have occurred.
However, Johnson was not charged
on any count or with any other offence
arising out of the facts recited.

  

   FACTS DISPUTED: THE MEETING AT TORRENS SHOPS

 


   Johnson gave evidence as follows. At the first meeting with the accused on
9 January 1996 he told the accused that he was interested
in "goey"
(amphetamine) in bulk. The accused produced from a shirt pocket a one ounce
bag of white powder and said that he had sold
"three this arvo". The accused
enquired whether Johnson might be of assistance in obtaining some drums of
phenol acetic acid (used
to manufacture amphetamines). There was further
discussion about price and future communications.

  

   Mr. Collaery properly conceded
that if Johnson's version of events is
accepted for the purpose of deciding the admissibility of Johnson's evidence,
then the principles
in Ridgeway provide no bar to that admissibility.

  

   The onus on this issue, namely whether at the first meeting the accused
indicated his participation in drug trafficking and his willingness to
continue to do so in association with Johnson, lies on the
prosecution. It is
relied upon by the prosecution for the purpose of the voir dire to show that
the police had abundant cause to
continue the undercover operation and to
induce the accused into obtaining drugs to supply to Johnson in order that the
source of
such drugs might be ascertained.

  

   However, the version is strongly disputed. The evidence of the woman Sharon
is not inconsistent
with the prosecution case. Despite a strong attack on her
credibility as a drug addict, informer and possible accomplice, I found
her an
acceptable witness. She had no memory of the details of the conversation
between the two men except that she introduced them
and that they exchanged
telephone numbers. She did not remember whether the accused handed anything
over to Johnson. That is not
surprising. She may not have been paying
attention and it would not have been an unusual event for her to be present at
such a transaction.
Further, I accept her evidence that the accused had
supplied cannabis and amphetamine to her on earlier occasions.

  

   The accused's
evidence was that the meeting at Torrens was entirely
innocent and that the conversations between him and Johnson were confined to
the subject matter of the accused's woodwork. I reject that evidence, although
it is probable that woodwork was among the matters
raised. The accused claimed
that he had never supplied the woman Sharon with drugs and that his only
previous meeting with her was
through a mutual acquaintance, Sharon Kennedy,
when the two called to inspect his woodwork. Ms. Kennedy gave evidence that
she introduced
them for this purpose. Her evidence does not determine the
issue. I reject the accused's evidence that his acquaintance with the
other
woman Sharon was limited to meeting on one occasion and otherwise innocent.

  

   Johnson claimed that this conversation
was the subject of notes made by him
some 10 to 15 minutes after the conversation took place and that the notes
were the basis of
a written statement prepared by him later that day. He gave
his evidence about the conversation by reading from the notes. Neither
the
statement nor the notes were sought to be put in evidence by either party. I
attach no great importance to that, but it seems
to me curious that the
plastic bag which Johnson claimed was handed to him by the accused and which
contained white powder, according
to his evidence (not objected to) "believed
to be amphetamines", was not produced at the hearing on the voir dire. Nor was
its absence
explained.

  

   Furthermore, one would expect that the conversation alleged to have
occurred on 9 January 1996 would have been
reported to Sergeant Conwell. It
might also have been expected that Sergeant Conwell would have been called to
give evidence on the
voir dire, but he was not. Detective Senior Constable
Chew of the Australian Federal Police knew nothing of any report by Johnson
that the accused was in possession of amphetamines on 9 January 1996 and the
supply of amphetamine on that date is not charged in
the indictment.

  

   The evidence about what happened on 9 January 1996 is clouded with
sufficient doubt for me to decline to
find on the probabilities that it
occurred exactly as Johnson claims it did. However, that does not mean that I
find positively that
Johnson was lying on that issue and it does not otherwise
reduce his credibility. It simply means that no conclusion can be drawn
that
any information which the police had at 9 January 1996 about the accused's
drug-trafficking activities was enhanced or reinforced
by the events at
Torrens. The absence of a positive finding that the accused handed over a
white powder to Johnson on 9 January 1996
does not mean that the police
investigating local drug trafficking were bound to abandon investigations into
the activities of the
accused. The introduction at Torrens meant that contact
between the undercover agent and the accused had been made. In my view. there
was no impropriety or unlawfulness in the police deciding that investigating
the accused should continue in the light of the information
already in the
possession of the investigating police prior to the introduction.

  

   FACTS DISPUTED: SUPPLY OF AMPHETAMINE ON
SECOND OCCASION

  

   The other significant area of disputed fact to which I refer relates to the
identity of the substances supplied.
The evidence of the accused and his
recorded statement to the police support the charges relating to the supply of
cannabis. So does
the evidence of Panagiotou. Panagiotou said that the accused
brought a set of weighing scales and a number of small plastic bags
to his
house on 29 March 1996. That supports the evidence of Johnson that the accused
used scales for the purpose of weighing out
small quantities of drugs and then
packaging them in small plastic bags. After taking into account the scepticism
which is conventionally
accorded to the evidence of accomplices, I have no
difficulty in accepting Panagiotou's evidence. He did not try to shift any
blame
to the accused nor to exculpate himself. He had nothing to gain by the
evidence he gave. He showed no signs of malice or wanting
to even scores.

  

   The evidence of Johnson relating directly to the charges of the supply of
amphetamines was that there were
two such occasions, both at the accused's
house. The first occasion alleged was on 7 March 1996 when, according to
Johnson, the accused
took down a black sock from the roof area of the garage,
removed one of nine similar plastic bags contained in the sock, and handed
it
to Johnson in exchange for the sum of $1,100. The other occasion was on 21
March 1996 when the accused "scaled" 29.2 grams into
a plastic bag. The
evidence in relation to both occasions is supported to some extent by the
facts agreed in writing that Johnson
handed a plastic bag containing white
powder to other police on both dates and that the powder was analysed and
found to contain
amphetamine.

  

   The accused's evidence on this issue was not easy to follow. He conceded
that there was one occasion when he
handed a bag containing white powder to
Johnson. I took him to say that this was on 7 March when he received,
according to him, either
$1,000 or $1,100 from Johnson, which he later used to
purchase cannabis from Panagiotou on 21 March. The accused also said that at
Johnson's insistence he had enquired of the woman Sharon, and she said that
she could supply amphetamines for $6,000 to $7,000 from
an address which the
accused disclosed to the police in a police interview.

  

   On this issue I take into account the possibility
that Johnson has
corruptly sought to corroborate his own evidence by making false records and
by handing to his superior officers
amphetamines which he obtained from some
source other than the accused, but ultimately I prefer the evidence of Johnson
for the purpose
of the voir dire and find that on the probabilities the
accused supplied amphetamines to Johnson on both 7 and 21 March 1996.

 


   DISCRETION TO EXCLUDE IMPROPERLY OR ILLEGALLY OBTAINED EVIDENCE

  

   The question arises whether the offence was "improperly
or illegally
obtained". The discretion to exclude evidence improperly or illegally
obtained, according to the common law of Australia,
was developed and
enunciated in Bunning v. Cross. That discretion is similar to but not
identical with the discretion described in
Ridgeway. However, in this
Territory, it is no longer simply a question of the application of the common
law. If the common law is
ousted by the provisions of the Evidence Act, it is
the Evidence Act and not the common law which is to apply. If the Evidence Act
supplements or only partially displaces the common law, it may be that a
combination of the Evidence Act and the common law is appropriate.

   Sub-section 138(1) of the Evidence Act provides as follows:

  

  

   "Discretion to exclude improperly or illegally obtained evidence

  

   138.(1) Evidence that was
obtained:

  

   (a) improperly or in contravention of an Australian law; or

  

   (b) in consequence of an impropriety or of
a contravention of an Australian
law;

  

   is not to be admitted unless the desirability of admitting the evidence
outweighs the
undesirability of admitting evidence that has been obtained in
the way in which the evidence was obtained."

   Sub-section 138(3)
of the Evidence Act provides as follows:

  

  

   "(3) Without limiting the matters that the court may take into account
under subsection (1), it
is to take into account:

  

   (a) the probative value of the evidence; and

  

   (b) the importance of the evidence in the proceeding;
and

  

   (c) the nature of the relevant offence, cause of action or defence and the
nature of the subject - matter of the proceeding;
and

  

   (d) the gravity of the impropriety or contravention; and

  

   (e) whether the impropriety or contravention was deliberate
or reckless;
and

  

   (f) whether the impropriety or contravention was contrary to or
inconsistent with a right of a person recognised
by the International Covenant
on Civil and Political Rights; and

  

   (g) whether any other proceeding (whether or not in a court)
has been or is
likely to be taken in relation to the impropriety or contravention; and

  

   (h) the difficulty (if any) of obtaining
the evidence without impropriety
or contravention of an Australian law."

   Whilst the language of sub-s.138(1) appears to be directed
to the sort of
discretion which was the subject of Bunning v. Cross, it is not clear at all
that it encompasses the sort of discretion
established in Ridgeway. It seems
to me to be stretching the language of sub-s.138(1) to read the words
"evidence obtained improperly
or in contravention of an Australian law" to
include evidence of an act observed by a witness who was engaged in improper
or illegal
conduct at the time. It is easy enough to understand that evidence
of a confession obtained contrary to such mandatory provisions
as s.9 or s.12F
of the Australian Federal Police Act 1979 (Cth) or evidence constituted by a
document or material object obtained as a result of an unlawful act is
evidence illegally obtained.
On the other hand, it has never been suggested,
as far as I am aware, that, whatever were or are the weaknesses of the
evidence of
an accomplice, evidence given by an accomplice of the commission
of an offence by a co-offender should be excluded on the ground
that it was
"illegally obtained" in that the accomplice and co-offender were jointly
engaged in the commission of that offence.

  

   In this respect I consider that the language of sub-s.138(1) is ambiguous
and that recourse may be had therefore to extrinsic
materials: Acts
Interpretation Act 1901 (Cth), s.15AB. It is judicially recognized that much
of the Evidence Act results from the report of the Australian Law Reform
Commission on evidence (ALRC 26 and the ALRC's Final Report No. 38 of 1997).
However, I am not aware of anything in ALRC 26 in the nature of a
recommendation that the Ridgeway discretion be enshrined in the
Evidence Act
or of anything in any other extrinsic materials which indicates that it was
intended that s.138 apply to the Ridgeway type situation. Odgers (at 244)
expresses the view that sub-s.138(1) might be interpreted as extending to such
circumstances on the basis that evidence of a crime "procured by unlawful
conduct" is evidence obtained in contravention of an Australian
law. In other
words, the author suggests that it is not so much the act of the police in
participating in the offence as principal
offenders that is at the heart of
the matter, but the conduct of the police at the time of or prior to the
offence, acting either
as principals in the second degree or as accessories
before the fact, or, in the classic terminology of indictments, "aiding and
abetting, counselling and procuring". Although the matter is not free from
difficulty, I propose to proceed on the basis that sub-s.138(1)
applies to the
question of whether the evidence of Johnson should be admitted because the
facts raise the Ridgeway discretion, not
the Bunning v. Cross discretion.

  

   The section, as I understand it, does not change the common law principle
that the onus
lies on the party alleging that evidence is illegally obtained
to prove that the relevant conduct is unlawful. The accused has no
difficulty
in discharging that onus. Whether the participation of Johnson in the acts of
the accused constituting the supply of drugs
or the previous conduct of
Johnson in procuring the supply of drugs, for himself by the accused is taken
to be the relevant conduct,
it was clearly unlawful conduct.

  

   The next question is to undertake the so-called balancing exercise of
weighing the desirability
of admitting the evidence in question against the
undesirability of admitting any evidence that has been obtained in the way in
which
the evidence in question has been obtained. That is clearly the task of
the Court as required by sub-s.138(1). Sub-section 138(3)
provides for a
number of particular matters that the Court must take into account, without
limiting the Court to those particular
matters. It may be that in some
circumstances considerations relating to one or more of these particular
matters are so over-whelming
that consideration of any others may be ignored
for the purpose of delivering reasons, but unless the case is a very clear
one, the
balancing exercise will usually be delicate and the Court will not be
able to ignore any one of the particular matters which the
section says must
be taken into account. The matters enumerated constitute more than just a
"check list". I think that in the circumstances
of this case I am obliged to
consider each matter in turn.

  

   (a) Probative value of the evidence

  

   The Dictionary, which
is part of the Evidence Act, defines "probative
value" as "the extent to which the evidence could rationally affect the
assessment of the probability of the
existence of a fact in issue". Counsel
for the prosecution submitted that this means something different from "weight
of evidence".
I do not understand the difference, but it does not matter for
the purposes of the present case. Mr. Collaery appeared to be submitting
that
the probative value evidence in question as defined extended to the evidence
taken for the purposes of the voir dire, but I
do not accept this.
Para.138(3)(a) is directed to the evidence which is relevant to issues in the
trial whose probative value is
to be considered and not the evidence which is
relevant only to the preliminary issue of admissibility.

  

   (b) Importance of
the evidence

  

   This can only be assessed as very high. Without it, counsel for the
Director of Public Prosecutions concedes
that the prosecution must fail, and
in the event of the Court deciding not to allow the evidence, the Director
would not oppose a
permanent stay of proceedings.

  

   (c) Nature of offence, defence and subject matter of the proceeding

  

   Again, in my view,
this is directed to the issues in the trial and not
those in the voir dire or the application to stay proceedings. The nature of
the offences charged is that of drug trafficking. Counts 1 and 3 carry a
maximum of five years imprisonment each, count 2 carries
a maximum term of
imprisonment of two years, counts 4 and 5 carry a maximum term of 10 years
imprisonment each.

  

   In theory
at least, the sentences may be cumulative. The nature of any
defence has not emerged from any material before me. The subject matter
of the
proceedings appears for the present case to be sufficiently dealt with in
relation to the nature of the offences. These matters
greatly favour admission
of the evidence.

  

   (d) Gravity of the impropriety or contravention

  

   (e) Whether the impropriety
or contravention was deliberate or reckless

  

   These may be dealt with together. In Ridgeway (at 39) it was said that the
graver
the impropriety or contravention, the more likely it would be in the
public interest that the evidence be excluded and more so if
the illegality is
deliberate or reckless.

  

   First, dealing with impropriety, it is obvious that views differ as to what
constitutes
impropriety. It is also obvious that the Australian Federal Police
and the New South Wales Police do not regard it as improper to
engage in a
certain amount of deception in order that suspected criminals may be
apprehended. In that regard, it is unlikely that
they differ from any other
police force in the modern world. This is not the place in which to engage in
a philosophical discussion
as to whether ends justify means, but it is clear
that most people, without pretending to hold a rigid or well-found position,
would
regard some deception as justified in order to properly investigate
serious crime. Community attitudes, in my view, would also tolerate
a certain
amount of law breaking to the same end.

  

   In the present case the undercover agent deceived the accused by
ingratiating
himself as someone interested in the accused's wood-working
activities and then by preying upon the accused's financial vulnerability
by
enticing him with the prospect of substantial gain for not much effort.

  

   With regard to the supply of cannabis, the tapes,
despite their lack of
clarity, convey the alacrity and enthusiasm with which the accused responded
to the bait held out to him. In
this regard I would not assess the deception
or impropriety as being of great significance. However, with regard to the
supply of
amphetamine, the evidence is much less clear. I am not satisfied
either that there was substantial pressure on the accused to supply
amphetamine, or that the accused responded very positively to whatever
pressure there was. Hence, if it is possible to separate the
two, I would
regard the conduct of the undercover police officer as a more substantial
contribution to the cannabis offences than
to the amphetamine offences, whilst
noting the greater enthusiasm of the accused to engage in the former than in
what Constable Johnson
proposed in respect of the latter. I do not think that
the accused has satisfied the onus of establishing that the conduct of Johnson
was improper apart from its unlawfulness.

  

   However, as far as the gravity of the particular contravention of law on
the part
of Johnson is concerned, there are two sides. Normally, as already
indicated, participating in or procuring a supply of drugs is
a serious
offence. However, it must be borne in mind that in this case the person
supplied with the drugs did not intend to use them
for a criminal purpose. He
did not intend other than that they be passed over to his superior officers
for the purpose of an on-going
investigation. A person in that position is not
regarded as an accomplice: Tyler v. R (1992) 62 A.Crim.R 241 at 242-6

  

   Leaving
aside the events of 9 January 1996, the undercover agent has not
been shown to have contravened any laws except by procuring and
participating
in the offences charged against the accused.

  

   It is clear that the illegal conduct of Johnson was deliberate.
It was not
reckless, except insofar as the officer may have been reckless in not
informing himself about whether or not the conduct
was unlawful. I expect that
in accordance with Ridgeway the High Court would regard a deliberate
contravention of law as more serious
than a reckless contravention. Insofar as
the officer's failure to inform himself of the unlawful nature of his conduct
is concerned,
that failure was probably induced by his superior officers, who
themselves may have been guilty of a contravention of the law in
inducing
Johnson's illegal conduct.

  

   However, insofar as neither Johnson nor his superior officers intended to
use the proceeds
of supply for an unlawful purpose, I do not regard the
contravention on any occasion as particularly serious.

  

   (f) Breach
of rights under International Covenant on Civil and Political
Rights

  

   The International Covenant on Civil and Political Rights
(the Covenant) to
which Australia is a party, is not itself part of the domestic law of
Australia, but it has indirect effect in
Australia through such statutory
provisions as para.138(3)(f) and in the exercise of judicial and quasi
judicial discretions: Teoh
v. Minister for Immigration [1995] HCA 20;  (1995) 183 CLR 273;
Mackellar v. Smith [1982] 2 NSWLR 980.

  

   If I understood Mr. Collaery's submissions correctly, he relied
basically
upon Article 26 of the covenant which guarantees equality before the law.
Equality before the law, I venture to suggest,
is basic to the rule of law and
is probably assumed by the common law. An assumption of the common law may not
be the same as a principle
guaranteed by the common law and I hastily depart
from this jurisprudential area. For the purposes of the present case, Mr.
Collaery
submitted that the accused was the subject of victimisation, or
discrimination at the hands of the police, being himself a formally
convicted
and imprisoned drug offender.

  

   According to this submission, the accused had successfully completed his
period of
parole after being discharged from prison and had been quietly
re-establishing himself in society, achieving rehabilitation by living
on a
pension, growing his own vegetables and selling the product of the woodwork
skills that he had learned in prison. So, it is
said, he was entitled to get
on with his life free from interference from police officers bent on seducing
him back into his former
lifestyle.

  

   The trouble with this submission is that it does not fit the facts. I leave
aside the events of 9 January 1996.
I also leave aside the dubious
relationship between the accused and the woman, Sharon (she says he was
supplying her with amphetamines,
he says that he asked her to supply him). It
is clear that irrespective of the conduct of the police, the accused was
growing cannabis
in his backyard, was in possession of packaged cannabis
hidden in his garage and also in possession of a mixture containing
amphetamine.
His explanation for his possession of the latter is ludicrous. He
claimed that it was a mixture of innocuous substances put there
to trap
someone he suspected of stealing money from him. He claimed that it contained
very little amphetamine, if any.

  

   Then
there are the tapes. They disclose that the accused was a willing
participant in discussions about the supply of substantial quantities
of
drugs. They do not support any suggestion that the accused was prevailed upon
by the police officer to do anything that he was
not willing and ready to do.
In the surrounding circumstances they are inconsistent with the notion that
the accused was a law-abiding
citizen until the arrival of Johnson and a
person who had freed himself from his connection with the drug sub-culture.

  

   There
may be situations in which previous offenders are harassed by
law-enforcement authorities for the purpose of investigation of crime,
but
this is not such a case.

  

   (g) Proceeding in relation to impropriety or contravention

  

   None of the prosecution witnesses
were asked whether they were being
prosecuted in relation to their part in the supply of drugs by the accused. In
the absence of
evidence I presume that they are not. Although obedience to
orders is not a defence known to our system of law, it would be virtually
certain that, if Johnson were prosecuted in relation to his conduct relating
to supply by the accused, a conviction would not be
recorded against him.
However, the absence of any "alternative to evidentiary exclusion" of the
evidence challenged as a means of
punishing or disciplining Johnson (or his
superior officers) in no way convinces me that exclusion is made the more
desirable. Although
in Ridgeway (at 38) it was said that a relevant factor is
the encouragement or toleration of impropriety or contravention by higher
authority in the police force or prosecuting authority, there is a
countervailing recognition that the "all too familiar encounter"
between an
undercover police officer and a suspected drug dealer, although unlawful, has
seldom, if ever, resulted in the prosecution
of the police officer and is
unlikely to do so as long as any transaction made during or as a result of the
encounter is made for
the purposes of law enforcement and not for any corrupt
purpose of the officer or other police. If the officer was not acting under
the legitimate direction and supervision of higher authority and the officer
was not the subject of prosecution or disciplinary proceedings,
the evidence
of such encounter might be more likely to be excluded. But again, that is not
the case here.

  

   (h) Difficulty
of obtaining evidence without impropriety or illegality

  

   Drug trafficking by definition involves some degree of organization.
For
there to be a supplier then there has to be a person supplied. Further, it is
a matter of the experience of courts in this country
in recent years that drug
trafficking is subject to varying degrees of organization. It ranges, on the
one hand, from the supply
by a casual user to another casual user without
reward to, on the other hand, sophisticated international operations in which
the
stakes, financial and otherwise, are high. Without the use of informers
and infiltration of the supply process by undercover operators,
it is unlikely
that law enforcement authorities would be able to expose the more serious
well-organized activities for the purpose
of prosecution.

  

   (i) Other factors

  

   The matters listed in sub-s.138(3) are not exhaustive. Odgers at 251
suggests that
another relevant factor is that referred to in Ridgeway at 39,
and described as "where the actual commission of the offence alleged
against a
defendant in criminal proceedings was 'procured' by the impropriety or
contravention, where that impropriety or contravention
'induced' the defendant
to commit the offence or the impropriety or contravention is itself the
principal offence to which the charged
offence is ancillary or itself
constitutes an ingredient of the charged offence".

  

   Assuming, without deciding, that this remains
a relevant factor following
the Evidence Act, there are particular problems about applying it in the
present case. One problem is that there are several offences charged. In
relation to each offence the acts of the undercover agent, as the person
supplied, may be considered to be "an ingredient of the
charged offence".
Those acts may also be considered to have "induced" one or more subsequent act
of supply by the accused. Another
problem is that the alleged impropriety and
contraventions go further than the act of being supplied.

  

   After due consideration,
I think that all that can be said is that,
consistent with Ridgeway, the Court should be more hesitant about allowing the
evidence
to be admitted in the category of a case where the impropriety or
contravention is ancillary to the offence charged or an ingredient
of the
offence charged than in the other category where the impropriety or
contravention simply induced the accused to commit the
offence charged.
However, cases differ according to their circumstances. This case encompasses
both categories.

  

   The balancing
of the various factors required by sub-s.138(3) is not to be
done in any mechanical way. There is nothing in the Evidence Act to indicate
how much weight is to be given to one factor rather than another or whether
the relative weight of a particular factor
has admission or non-admission. I
note that in New South Wales where there are statutory provisions similar, if
not identical, to
those in s.138, the Court of Criminal Appeal has decided
that it is not necessary for the factors in sub-s.138(3) to be spelt out in a
decision
on whether to admit or reject improperly or illegally obtained
evidence: R v. Salem (unreported, Court of Criminal Appeal of New
South Wales,
3 October 1997). Although I think it would be a bold judge who declined to
give express consideration to s.138 in making such decision, I agree with the
remarks of Hidden J. in Salem at 17 that the ultimate and essential question
to be decided
is whether the public interest is best served by the admission
of evidence tending to establish the accused's guilt of the crime
notwithstanding that that evidence was obtained by the unlawful or improper
conduct of law enforcement authorities. Once the impropriety
or contravention
is proved, then the prosecution must show that the discretion to exclude the
evidence should not be exercised.

  

   On a combination of the reasons which have already been stated, I have
formed the conclusion that the prosecution has shown
that the desirability of
admitting the evidence outweighs the undesirability in relation to all counts
in the indictment. I can do
no better in summing up the position than by
borrowing from the words of Judge Shadbolt, the trial judge in Salem, words
which were
approved by the Court of Criminal Appeal:

  

  

   "[The evidence] is not, in my view, evidence obtained at too high a price
such
as to offend against a sense of fair play or immediately to arouse
feelings of moral outrage. Rather, it presents itself as the now
"normal"
police subterfuge and rather squalid perception which is one of the more
depressing by-products of the thematically sealed
drug culture. [The accused]
was not being persuaded into entering the heroin trade, but was ever there,
standing, if not at the centre,
certainly well enough to know where he could
obtain heroin for himself and if necessary for others."

   The evidence of Matthew
Johnson will therefore be admitted and no occasion
arises for considering whether there should be an order staying the
prosecution.

  

   Finally, I would commend the following remarks of Gleeson J. in Salem to
the attention of the ACT Community Law Reform Committee
and the legislature:

  

  

   "If it be the case that frequently, and perhaps almost as a matter of
routine, the techniques of
investigation and exposure of drug offences involve
law enforcement agencies, or their officers, in breach of the law, and their
only protection lies in discretionary decisions not to prosecute them, then a
very unhealthy situation exists. Whether the problem
can and should be dealt
with by legislation is a difficult question, with far-reaching implications."