R v Upton [2007] ACTSC 21 (27 March 2007)

Last Updated: 7 May 2008

R v HAROLD SCOTT UPTON

[2007] ACTSC 21 ( 27 March 2007)

EVIDENCE - discretion to exclude unlawfully obtained evidence - person deliberately commits offence and then informs authorities - whether evidence admissible against co-offender.

Evidence Act 1995 (Cth), s 137, s 138

Dangerous Substances Act (ACT) 2004, s 76

Criminal Code 2002 (ACT), s 48

Ridgeway v The Queen (1994-5) 184 CLR 19

R v Sloane (1990) 49 A Crim R 270

Robinson v Woolworths [2005] NSWCCA 426; (2005) 64 NSWLR 612

R v Leiske [2006] ACTSC 97

R v Swaffield, Pavic v R (1998) 192 CLR 159

No. SCC 22 of 2006

Judge: Connolly J

Supreme Court of the ACT

Date: 27 March 2007

IN THE SUPREME COURT OF THE )

) No. SCC 22 of 2006

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: HAROLD SCOTT UPTON

Applicant

AND: THE QUEEN

Respondent

ORDER

Judge: Connolly J

Date: 27 March 2007

Place: Canberra

THE COURT ORDERS THAT:

1. The evidence in the Case Statement dated 24 May 2004 of Mr Brennan, Mr Doherty and Mr Schafer be ruled admissible.

1. This is an application for certain evidence to be excluded pursuant to ss 137 and 138 of the Evidence Act 1995 (Cth) (the Evidence Act) on the basis that material was obtained improperly or unlawfully. The accused, Mr Harold Upton, is charged on indictment with one count of supplying a prohibited dangerous substance, namely fireworks, contrary to s 76(1) of the Dangerous Substances Act (ACT) 200 and, in the alternative, one count of supplying a prohibited dangerous substance, namely fireworks, to a person not authorised to receive those fireworks contrary to s 76(3) of the Dangerous Substances Act. These are serious offences with a maximum penalty of imprisonment for seven years, or a substantial monetary penalty, or both.

2. For the purposes of this application, counsel were in agreement that the Case Statement filed by the prosecution with the indictment in May 2006, sets out the facts relevant to the application. The prosecution case is that on 6 May 2004, a Mr Brennan telephoned the accused at his business premises whose telephone number was listed as "ACT Fireworks". He made arrangements to purchase fireworks the next day. Mr Brennan does not and has never held a licence authorising him to purchase fireworks.

3. The next morning Mr Brennan, giving the name of "Derek", attended the premises in Fyshwick and met the accused in his store. The accused and Mr Brennan then went to a vehicle parked nearby, at which point the accused sold Mr Brennan a box of mixed fireworks for $200.00 in cash. This transaction was witnessed by a journalist from The Canberra Times, and photographed by a photographer from The Canberra Times. It is common ground that Mr Brennan was associated with the community group Animal Liberation and set out to purchase fireworks, without a licence, knowing that it was an offence, in order to make a public point about the prevalence of this type of activity. Mr Brennan made contact with The Canberra Times and arranged for the journalist, Mr Doherty, and the photographer, Mr Schafer, to be present when the transaction occurred.

4. After purchasing the fireworks and arranging for more photographs to be taken, Mr Brennan attended the premises of the relevant regulatory authority, Workcover ACT, where he made a statement in which he admitted his involvement in the unlawful purchase of fireworks, and identified the accused as the person from whom he had made the purchase. It is common ground for the purposes of this application that there was no prior arrangement between Mr Brennan and the prosecution authority in relation to this purchase.

5. The accused makes application to have this evidence excluded on the basis that it has been obtained unlawfully and that the accused was, in effect, entrapped into conducting this transaction.

6. It has long been the law that the courts have a discretion to exclude the admission of otherwise relevant evidence if it has been obtained improperly, particularly where law enforcement authorities have resorted to illegality. In Ridgeway v The Queen (1994-5) 184 CLR 19, police had arranged for the importation of a significant quantity of heroin, and undercover police set out to obtain purchasers for this heroin. The High Court exercised its discretion to exclude the evidence, saying (per Mason CJ, Deane and Dawson JJ) at 37:

The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that they are conductive to the commission of a criminal offence by a person believed to be engaged in criminal activity. It is neither practicable nor desirable to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community. A finding that law enforcement officers have engaged in such clearly improper conduct will not, of course, suffice of itself to give rise to the discretion to exclude evidence of the alleged offences or of an element of it. As with the case of illegal conduct, the discretion will only arise if the conduct has procured the commission of the offence with which the accused is charged.

7. This discretion is now contained in s 138 of the Evidence Act which provides:

(1) Evidence that was obtained:

(a) improperly or in contravention of 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.

8. Also relevant is s 137 of the Evidence Act, which provides that:

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

9. The accused's argument is that, because Mr Brennan embarked on a course of action which was unlawful and known by him to be unlawful, the discretion should be exercised. It is common ground that Mr Brennan knew that it was unlawful to purchase fireworks without a licence, just as he knew that it was illegal for them to be sold to a person without a licence. Charges were brought against Mr Brennan, and he appeared in the Supreme Court charged on indictment with one count of possessing a prohibited dangerous substance, namely fireworks, on 24 November 2005. He was acquitted, the prosecution not bringing evidence to demonstrate that the items were in fact dangerous, and on that basis the jury were directed to acquit. It is apparent from the transcript that this was a deliberate decision, and his Honour the Chief Justice, presiding at the trial, made the observation that the Director was to be congratulated for taking the view that it may not be in the public interest for the prosecution to continue. His Honour said (T 70):

The reason for that is reasonably straightforward. We rely upon citizens to make reports of criminal activity to the relevant authorities. If, in the course of doing that, they inadvertently or accidentally appear to breach the law, albeit intending to expose a breach of the law, it would be a powerful deterrent against people exposing that activity.

10. I am not satisfied that the conduct of Mr Brennan in deciding to attempt to purchase illegal fireworks in order to bring the matter to the attention of the authorities, and the conduct of the reporter and photographer who witnessed the incident and took photographs, amounts to unlawful conduct such as should enliven the discretion to exclude the evidence. It seems to me that the simple purchase of an illegal product does not amount to entrapment. As Gleeson CJ observed in R v Sloane (1990) 49 A Crim R 270 at 273:

A common method of establishing that a person is carrying on an activity of selling goods of a particular kind is to buy some of the goods in question from that person. The specific sale would never have taken place but for the activity of the relevant police officer or informer, but that is not sufficient to constitute a case of entrapment.

11. The conduct here in question seems to me to equate closely with the conduct considered by the New South Wales Court of Criminal Appeal in Robinson v Woolworths [2005] NSWCCA 426; (2005) 64 NSWLR 612. In that case the court considered a program of "compliance testing" whereby relevant health authorities recruited young persons who entered premises where tobacco was lawfully on sale and purchased tobacco products. The young persons were directed to be truthful and, if asked, disclose their age or show identification. In that case, the prosecution authorities were themselves involved in the conduct, whereas here the prosecution only came to know of the sale after it had taken place. Nevertheless, the Court of Criminal Appeal held that the evidence was admissible. Basten J, after an extensive review of the authorities, said at 625:

In my view, the conduct complained of was not capable, as a matter of law, of constituting impropriety for the purposes of s 138 of the Evidence Act. The factors which support that conclusion have been discussed above, but may be summarised as follows:

(a) The conduct of the law enforcement authority provided the opportunity for the commission of the offence, but did not involve the application of any form of pressure, persuasion or manipulation;

(b) The conduct involved a straightforward request, made in a public place, in the course of a legitimate business and therefore involved no intrusion on individual rights or freedoms and certainly no harassment;

(c) The two girls acted in the manner of ordinary members of the public seeking to purchase cigarettes;

(d) In the case of an offence that does not involve a criminal intent, the policy against tempting people to commit crimes which otherwise might not have occurred is of limited significance;

(e) Because the victim of a contravention of the law, namely the young person who successfully purchases tobacco products, is unlikely to complain about a contravention, the conduct constitutes a viable and practical means of achieving a better level of compliance than would be likely if law enforcement were dependent on receipt of complaints;

(f) A properly run compliance program, backed by the possibility of prosecution where contravention occurs, is itself a reasonable and proper means of promoting compliance with the law.

12. It seems to me that, where a program involving a degree of illegality by a prosecution authority in being directly involved in the unlawful sale has been endorsed by an appellate court, it can hardly be said to be a more serious contravention where the prosecution authority has had no involvement, and the purchase was conducted by a private citizen, albeit one motivated by a desire to bring to light a perceived illegality. While Mr Thomas, for the accused, rightly observed in submissions that the law should be vigilant not to encourage "vigilantes", Mr Brennan was not taking the law into his own hands, rather, it seems to me, he was seeking to bring a matter to the attention of the proper authorities. The journalist and photographer, it seems to me, were engaged in a longstanding tradition of a free press of bringing to public attention matters of legitimate public concern. While their prior knowledge that an unlawful sale was likely to occur may theoretically expose them to a prosecution (on the basis that s 48 of the Criminal Code 2002 (ACT) provides that a person is taken to have committed an offence if the person "aids, abets, counsels or procures the commission of the offence by someone else"), their conduct in reporting what they saw must be seen to have been in the public interest. There is a long and honourable tradition of journalists exposing impropriety and illegality, which should not be condemned by the courts.

13. It seems to me that there is a clear distinction to be drawn between cases where the conduct of a law enforcement authority actually induces the commission of an offence, and cases where the authority merely provides an opportunity for the crime to occur. In Ridgeway, Gaudron J drew this distinction saying (at 77) that:

In cases of "mere opportunity", the accused person is fairly regarded as wholly responsible for his own actions. And that is so even if there is some illegality associated with the opportunity provided, as, for example, that involved in the purchase of contraband where it is clear that it is generally available to all who wish to purchase it.

Her Honour contrasted this with other cases as follows:

But in cases which go beyond the provision of mere opportunity, where the offence results from the illegal actions of those whose duty it is to uphold the law, it is they who, in a real sense, are responsible for its commission, not the accused. In such circumstances the accused and society in general may well view prosecution as a serious injustice.

14. This distinction, which is equally applicable in this case, was relied upon by Hall J in Robinson v Woolworths where his Honour said at 632:

Clearly, then, cases involving the unfair enticement of vulnerable persons to commit an offence, will in many situations readily be seen to be improper conduct. On the other hand, an investigating officer, who has reasonable grounds for suspecting that a person who is the target of a controlled operation is engaged in unlawful activities, may be held to act properly where he or she merely provides the opportunity for that person to commit an offence consistent with the suspected illegal activity.

15. Clearly great care needs to be taken lest inappropriate conduct by law enforcement authorities undermines statutory rights and guarantees. Thus courts are very wary of telephone calls organised by police to elicit confessions (R v Leiske [2006] ACTSC 97), although in R v Swaffield, Pavic v R (1998) 192 CLR 159 the High Court did permit a covertly obtained confession in circumstances where a police informer wore a listening device in a conversation with a murder suspect in which incriminating statements were made. But these are far removed from the circumstances of the present case.

16. In the present matter, on the prosecution case, Mr Brennan selected the accused's telephone number because he was advertising himself as a lawful fireworks provider. He then attended the premises, and sought to purchase fireworks. He did not have the requisite licence, and his evidence was that this was never asked for, and a cash sale proceeded, photographed and witnessed by the journalist and photographer.

17. I see no impropriety in this evidence, and rule that the evidence of Mr Brennan, Mr Doherty and Mr Schaffer relating to the alleged offences in the indictment dated 24 May 2004 be ruled admissible on the trial of the accused.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 27 March 2007

Counsel for the applicant: Mr R Refshauge SC and Ms M Hunter

Solicitor for the applicant: Director of Public Prosecutions (ACT)

Counsel for the respondent: Mr R Thomas

Solicitor for the respondent: Legal Aid Office (ACT)

Date of hearing: 1 March 2007

Date of judgment: 27 March 2007