R v Tore Bjorn Haughbro [1997] ACTSC 234; (1997) 135 ACTR 15 (19 December 1997)

SUPREME COURT OF THE ACT

THE QUEEN v. TORE BJORN HAUGHBRO
No. SCC 164 of 1996
Number of pages - 14
Evidence - Criminal Law - Human Rights
[1997] ACTSC 234; (1997) 135 ACTR 15

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MILES CJ

CATCHWORDS

Evidence - admissibility of evidence of undercover officer to whom illegal drugs supplied by accused - s.138 Evidence 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

HEARING

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

19:12:1997

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

ORDER

THE COURT RULES THAT:

1. The evidence of Matthew Johnson be admitted.

DECISION

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."