Nicholas v R
193 CLR 173(Judgment by: Toohey J)
NICHOLAS v REGINA
Court:
Judges:
Brennan CJ
TooheyGaudron
McHugh
Gummow
Kirby
Hayne JJ
Subject References:
CONSTITUTIONAL LAW
Separation of judicial power of the Commonwealth
Legislative response to Ridgeway v. The Queen
Whether Parliament usurping judicial power
Whether legislation impermissibly specific in application
Integrity of judicial process
Retrospective operation of statute
EVIDENCE
Importation of prohibited drugs
"Controlled delivery" by law enforcement officer
Rationale for Ridgeway discretion to exclude evidence
Public policy
Other References:
Crimes Act 1914 (Cth), s 15X.
Crimes Amendment (Controlled Operations) Act 1996 (Cth).
Customs Act 1901 (Cth), s 233B.
The Constitution, Ch III.
Judgment date: 2 FEBRUARY 1998
Judgment by:
Toohey J
43. The circumstances in which this matter was removed into the High Court and the operative legislative regime are detailed in the judgment of Hayne J. I shall avoid unnecessary repetition.
44. The applicant contends that Div 3 of Pt 1AB of the Crimes Act 1914 (Cth) ("the Act") is invalid. Part 1AB was introduced by the Crimes Amendment (Controlled Operations) Act 1996 (Cth) ("the Amending Act"), following the decision of this Court in Ridgeway v. The Queen [F57] . In Ridgeway the Court held that evidence of the illegal importation of heroin by law enforcement officers should have been excluded on the grounds of public policy, with the consequence that the prosecution was unable to prove a necessary element of the offence charged. The main provision under attack is s 15X. The key words of that section provide that in determining whether evidence that narcotic goods were imported into Australia in contravention of the Customs Act 1901 (Cth) should be admitted:
"the fact that a law enforcement officer committed an offence in importing the narcotic goods, or in aiding, abetting, counselling, procuring, or being in any way knowingly concerned in, their importation is to be disregarded".
Certain conditions must be fulfilled before the section can operate [F58] ; it is not in issue that the conditions were met.
45. Division 3 deals only with controlled operations [F59] that began before Pt 1AB commenced [F60] . This is such a case. The division stands in contrast to Div 2 of Pt 1AB which is concerned with controlled operations that took place after the part commenced. Section 15I, which is part of Div 2, provides in effect that a law enforcement officer who, in the course of duty, engages in conduct that would otherwise constitute a narcotic goods offence, is not liable for that offence if there is in existence a certificate which authorises the controlled operation.
46. Thus s 15I has no direct evidentiary effect. Rather, it obliges a court relevantly to treat the officer as someone who is not liable for any narcotic goods offence that the officer would otherwise have committed. The application of "the Ridgeway discretion" must be assessed accordingly. On the other hand s 15X does have a direct evidentiary effect. In determining whether evidence of a particular character should be admitted, a court must disregard the fact that an officer committed an offence. The application of the Ridgeway discretion must be assessed on that footing. The court remains free to have regard to any other relevant evidence. This is put beyond doubt by s 15G(2) which reads:
"Subject to section 15X, this Part is not intended to limit a discretion that a court has:
- (a)
- to exclude evidence in criminal proceedings; or
- (b)
- to stay criminal proceedings in the interests of justice".
Thus, a court may exclude evidence obtained from a controlled operation falling within Div 3 on the basis of unfairness to the accused or because the prejudicial effect of the evidence outweighs its probative value. In particular, nothing in Pt 1AB affects s 138(1) of the Evidence Act 1995 (Cth) which reads:
"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."
Of course, in the application of s 138 a court must proceed in accordance with s 15X.
47. The applicant was charged with offences under s 233B of the Customs Act . Relying upon Ridgeway , the County Court made an order permanently staying the proceedings against him. Thereafter the Amending Act came into effect. The respondent then sought to have the order vacated. The proceedings were adjourned and subsequently the matter was removed into this Court. It is common ground that if s 15X is invalid, the application to vacate the stay order cannot succeed.
48. The attack on the validity of s 15X was expressed in terms that the section "infringes or usurps the judicial power of the Commonwealth contrary to the doctrine of separation of powers mandated by Chapter III of the Constitution ". Some refinement of that formulation is necessary in order to understand precisely what the attack involves. As I understand the applicant's argument, it begins with the proposition that Ch III separates the judicial power of the Commonwealth from legislative and executive powers and directs that judicial power may be exercised only by courts which are established, or are invested with federal jurisdiction, by the sections that comprise Ch III. There is no difficulty in accepting the applicant's argument thus far. It is the next step that the applicant seeks to take that calls for closer consideration. The proposition is that the legislature cannot direct a court exercising the judicial power of the Commonwealth as to the manner in which the power is exercised. If necessary, this is further refined to say, at least not in such a way as is inconsistent with the essential powers of a court or with the nature of judicial process.
49. The argument was expressed in two different ways. The first focused on the discretion which a judge has to exclude evidence in certain circumstances and contended that s 15X unduly interfered with that discretion. The second way the argument was put was that Div 3 of Pt 1AB necessarily relates to a small, identifiable group of persons and in that context it directs a judge to deal in a particular way with the evidence, a requirement that does not exist in other cases. At times the two submissions tended to merge.
50. The doctrine of separation of powers serves "both to protect 'the role of the independent judiciary within the constitutional scheme of tripartite government' ... and to safeguard litigants' 'right to have claims decided before judges who are free from potential domination by other branches of government'" [F61] .
51. It is apparent from the decision of the Supreme Court of the United States in Plaut v. Spendthrift Farm Inc [F62] that the limits of legislative encroachment on judicial power can give rise to considerable debate. There the Court, by majority, held legislation unconstitutional to the extent that it required federal courts to re-open final judgments entered before its enactment. But underlying the debate is an acceptance of the proposition that the power to resolve conclusively and to dispose of litigation is a judicial power [F63] . A similar debate has taken place in Canada from time to time. Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island; Reference re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island [F64] is a recent example. The underlying principle remains the same.
52. Because of the form the argument took, it is convenient to say something first about the discretion (more accurately, the power) to exclude evidence sought to be adduced against an accused person [F65] . Consideration can, in this respect, be confined to the exclusion of evidence on grounds of public policy [F66] . The discretion to exclude evidence on those grounds is part of the settled law in this country [F67] . The source of the discretion is not to be found in statute law [F68] ; it "is properly to be seen as an incident of the judicial powers vested in the courts in relation to criminal matters" [F69] . In the same way, courts have developed over many years the concept of a discretion to exclude confessional statements where the reception of the evidence might result in unfairness to an accused. In even broader terms the courts speak of a discretion to exclude evidence, the probative value of which is outweighed by the likely prejudice to an accused. But these aspects of discretion are outside the scope of the present application [F70] .
53. It is a considerable step to reason that legislation may not affect the way in which judicial power is exercised. It is an even bigger step to contend that the legislature may not provide that evidence possessing a certain character must be treated in a certain way or that evidence of a particular character must be rejected or, for that matter, admitted. It might be necessary, in a particular situation, to look closely at the consequences of rejecting or admitting the evidence. Those consequences may, for instance, be so inimical to the idea of a fair trial that a question arises as to the power of the legislature, at any rate where the judicial power of the Commonwealth is involved. In Polyukhovich v. The Commonwealth ( War Crimes Act Case ), where the operation of a law retroactively was one of the issues, I said [F71] :
"It is only if a law purports to operate in such a way as to require a court to act contrary to accepted notions of judicial power that a contravention of Ch III may be involved."
The operation of s 15X falls far short of that situation. It postulates a particular evidentiary footing upon which a court may then proceed where the admissibility of evidence that narcotic goods were imported into Australia is at issue. Section 15X is an evidentiary provision. It does not determine whether a charge of an offence against the Customs Act will succeed or fail. In no sensible way can the section, or for that matter Div 3 generally, be described as a bill of attainder. A closer analogy is with a statutory provision removing a requirement for corroboration. Such a provision was upheld in Rodway v. The Queen [F72] as not falling within the presumption against the retrospective operation of a statute.
54. In its broadest form, the argument of the applicant would seem to invalidate any legislative provision that bore on the exercise of the judicial power of the Commonwealth. And why would it not strike down even provisions designed to ensure due process? Clearly the argument must be expressed much more narrowly. What is at stake here is not the reputation of the courts. It may be that the reputation of the courts will suffer if compelled to admit or to exclude certain evidence, but only if as a consequence the chances of an accused receiving a fair trial are seriously diminished. Even then it is not the reputation of the courts which calls for protection; it is the judicial process itself.
55. Evidence has traditionally been a subject for legislative regulation. The Evidence Act 1995 (Cth) is a recent illustration. To take an example closer to home, averment provisions have been upheld as within constitutional power [F73] . In so far as areas of public policy are involved, the identification of matters which are contrary to public policy is not the sole prerogative of the courts. The legislature may, by the proscription of conduct, spell out areas of public policy.
56. Faced with these hurdles in the way of the first limb of his argument, the applicant was, in a sense, driven to the second limb.
57. The second limb related to the relatively few persons upon whom it was said s 15X might operate, that is where a controlled operation had started before the commencement of Pt 1AB [F74] . Just how many persons cannot be known. Even though the existence of controlled operations may be ascertainable, identifying the persons affected by a controlled operation is another matter. There is nothing in the relevant provisions which singles out an individual, as in Kable v. Director of Public Prosecutions (NSW) [F75] , or which singles out a particular category of persons. It is simply the fact that by applying to controlled operations commenced before Pt 1AB, s 15X necessarily operates only by reference to accused persons to whom those operations related. In the same way, it might be said that the War Crimes Act 1945 (Cth) necessarily applied only to the conduct of a limited number of persons. But that did not lead to any declaration of invalidity [F76] . The legislation held invalid in Liyanage v. The Queen [F77] went a great deal further by purporting to legislate ex post facto the detention of particular persons charged with particular offences on a particular occasion.
58. The applicant had a further submission which did not involve the validity of Div 3 of the Act. The submission was that the division had a prospective operation only and that, the County Court having ordered a stay of proceedings before the Amending Act took effect, s 15X could not apply to any trial of the applicant.
59. It is an established principle that, absent a clear statement of legislative intention, a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation. Once it is understood that s 15X operates only to affect rights to be determined at trial, as in Rodway , the principle is not offended. In any event Div 3 contains a clear statement of its intention to operate in the future. There is nothing to support the argument that, a stay having been granted before the Amending Act came into operation, the stay cannot be lifted thereafter.
60. It follows that Div 3 of Pt 1AB is a valid law of the Commonwealth. The matter should be remitted to the County Court to be dealt with according to law.