Nicholas v R
193 CLR 173(Judgment by: Gaudron J)
NICHOLAS v REGINA
Court:
Judges:
Brennan CJ
Toohey
GaudronMcHugh
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:
Gaudron J
61. In Ridgeway v. The Queen this Court held, by majority, that there is a discretion "to exclude, on public policy grounds, all evidence of an offence or an element of an offence procured by unlawful conduct on the part of law enforcement officers." [F78] That case involved heroin imported into Australia in breach of the Customs Act 1901 (Cth) by law enforcement officers who sold it to Ridgeway as part of a plan to catch him "red-handed". The majority held that evidence of its importation should have been excluded in exercise of the discretion identified in that case [F79] . And, in the result, Ridgeway's conviction for possession of illegally imported heroin was set aside and an order made staying his further prosecution [F80] .
62. Following the decision in Ridgeway , the Crimes Act 1914 (Cth) ("the Act") was amended by the insertion of Pt 1AB [F81] . That Part deals with controlled operations in which law enforcement officers engage in what is or otherwise would be illegal conduct "for the purpose of obtaining evidence that [might] lead to the prosecution of a person for an offence against section 233B of the Customs Act 1901 [F82] or an associated offence" [F83] .
63. So far as concerns controlled operations carried out after Pt 1AB came into force, s 15I(1) relevantly provides that "a law enforcement officer ... who, in the course of duty, for the purposes of a controlled operation, engages in conduct that, apart from this subsection, would constitute a narcotic goods offence is not liable for that offence if ... there is in force a certificate given under section 15M" [F84] . However, that exemption does not apply if:
- "(a)
- the conduct of the [relevant law enforcement officer] involves intentionally inducing the person targeted by the operation to commit an offence against section 233B of the Customs Act 1901 or an associated offence; and
- (b)
- the person would not otherwise have had the intent to commit that offence or an offence of that kind." [F85]
64. No provision is made in Pt 1AB of the Act with respect to the admission or exclusion of evidence in cases involving controlled operations carried out after it came into force. Rather, it seems to be assumed that, by exempting law enforcement officers from criminal liability for offences committed in the course of those operations, their conduct is rendered lawful and, thus, the discretion identified in Ridgeway is not enlivened. Certainly, that assumption is consistent with s 15G(2) which provides that subject to s 15X, that that 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."
Section 15X applies only to controlled operations commenced before Pt 1AB came into force.
65. There is nothing in Pt 1AB conferring immunity from criminal liability for offences committed in controlled operations started before that Part came into force. Instead, s 15X provides, in the case of a controlled operation undertaken by a law enforcement officer in the course of duty and purportedly in accordance with previous arrangements [F86] , that:
"In determining, for the purposes of a prosecution for an offence against section 233B of the Customs Act 1901 or an associated offence, whether evidence that narcotic goods were imported into Australia in contravention of the Customs Act 1901 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".
The question in this case is whether s 15X is valid.
66. The validity of s 15X was brought into issue in proceedings against the applicant, David Michael Nicholas, in the County Court, Melbourne. He was presented in that Court on an indictment charging four narcotic drug offences. Two of the charges were for offences under s 233B(1)(c) of the Customs Act ("the federal offences") and the other two were for offences under State law. The offences were allegedly committed in September 1994 and involved drugs which were illegally imported into Australia by a law enforcement officer. Before Pt 1AB of the Act came into force, an order was made staying the prosecution of the federal offences. The order was made on the basis that, so far as the drugs in question were illegally imported by a law enforcement officer, the facts were not relevantly distinguishable from those in Ridgeway and, thus, evidence of their importation should be excluded. When Pt 1AB came into force, the prosecution applied to have the stay lifted. In the course of that application, a question arose as to the validity of s 15X and, to the extent that the proceedings raise that question, they were removed into this Court pursuant to s 40 of the Judiciary Act 1903 (Cth).
67. The applicant contends that s 15X is invalid on the basis that it "usurps the judicial power of the Commonwealth". It is also said that s 15X infringes Ch III of the Constitution in that it impermissibly "directs the manner in which [a] Court is to consider an application ... for evidence to be excluded ... [and] also directs the outcome as [the] application ... must inevitably fail when the very basis for the application cannot be taken into account." Additionally, it is put that it infringes Ch III because it is selective rather than general in its operation. In this last regard, it is not in issue that, apart from the applicant, only five or six people whose identities are known to the relevant law enforcement authorities will be affected by s 15X. Finally, it is argued that s 15X does not apply where, as here, a stay has already been granted.
68. In order to understand the arguments advanced on behalf of the applicant, it is necessary to say something of Ch III of the Constitution. It is settled constitutional doctrine that the provisions of that Chapter, particularly s 71, operate so that the judicial power of the Commonwealth can only be exercised by the courts mentioned in that section, namely, this Court, federal courts created by the Parliament and courts invested with federal jurisdiction [F87] , the latter relevantly consisting of State Courts invested with federal jurisdiction pursuant to ss 39 and 39A of the Judiciary Act [F88] . It is also settled constitutional doctrine that they operate so that the Parliament cannot confer any power other than judicial power and powers ancillary to the exercise of judicial power on those courts [F89] .
69. The argument that s 15X "usurps" the judicial power of the Commonwealth is, in effect, an argument that Parliament has attempted to engage in an exercise of judicial power by itself deciding that evidence as to the illegal importation of the narcotic drugs the subject of the federal offences with which the applicant is charged must be admitted at his trial. As will later appear, I do not think s 15X operates in that way. For present purposes, however, it may be assumed that it does. Even so, it does not follow, in my view, that Parliament has "usurped" judicial power.
70. The difficulties involved in defining "judicial power" are well known [F90] . In general terms, however, it is that power which is brought to bear in making binding determinations as to guilt or innocence, in making binding determinations as to rights, liabilities, powers, duties or status put in issue in justiciable controversies, and, in making binding adjustments of rights and interests in accordance with legal standards [F91] . It is a power which is exercised in accordance with the judicial process and, in that process, many specific and ancillary powers are also exercised. One ancillary power which may be exercised in that process is the power to exclude evidence in the exercise of a discretion which permits that course. Other ancillary powers which are or may be brought to bear include the power to grant an adjournment, to make procedural rulings and to rule on the admissibility of evidence.
71. The various ancillary powers which are or may be brought to bear in the exercise of judicial power are not, themselves, ultimate powers of the kind involved in the making of binding determinations as to guilt or innocence or as to existing rights, liabilities, powers, duties, or status, or, in making binding adjustments of rights and interests. And they are not properly identified as judicial power for the purposes of Ch III of the Constitution. Accordingly, the argument that, in enacting s 15X of the Act, the Parliament purported to exercise the judicial power of the Commonwealth must be rejected.
72. The argument that s 15X infringes Ch III of the Constitution because it directs the manner in which the Ridgeway discretion is to be exercised and because it is specific and not general in its operation is, in effect, an argument that s 15X transforms the power to determine guilt or innocence in any case in which that section applies with the result that that power is not then properly characterised as judicial power. To understand that argument, it is necessary to say something as to the nature of judicial power.
73. Judicial power is not adequately defined solely in terms of the nature and subject-matter of determinations made in exercise of that power. It must also be defined in terms that recognise it is a power exercised by courts and exercised by them in accordance with the judicial process [F92] . Thus, as was said in Chu Kheng Lim v. Minister for Immigration , the Parliament cannot make "a law which requires or authorizes the courts in which the judicial power of the Commonwealth is exclusively vested to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power." [F93]
74. In my view, consistency with the essential character of a court and with the nature of judicial power necessitates that a court not be required or authorised to proceed in a manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to facts determined in accordance with rules and procedures which truly permit the facts to be ascertained and, in the case of criminal proceedings, the determination of guilt or innocence by means of a fair trial according to law. It means, moreover, that a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute.
75. The argument that s 15X transforms the power to be exercised in determining guilt or innocence is based on two distinct premises. The first is that s 15X prevents the independent determination of the matter in controversy. The second is that it requires the court to proceed in circumstances which bring or tend to bring the administration of justice into disrepute. Those premises must be examined. And, in the view I take as to what is required for consistency with the nature of judicial power, it is also necessary to consider whether s 15X offends against the requirement of equality before the law. The examination of those issues requires a consideration of the rationale which underpins the discretion identified in Ridgeway . And it also requires an analysis of the precise operation of s 15X.
76. In Ridgeway , Brennan J took the view that the evidence in issue in that case was to be excluded because its admission "would be too high a price to pay" [F94] . A similar view was taken by Toohey J, his Honour adopting the view that "the seriousness of the unlawful conduct ... was such that considerations of public policy precluded its reception" [F95] . Mason CJ, Deane and Dawson JJ were more specific in their identification of the public interest involved. Their Honours clearly regarded the discretion as born of considerations relating to the integrity of the administration of justice. In this regard, they expressed the view that in cases where police conduct induces the commission of an offence, it was unlikely that evidence would be excluded except in "the rare and exceptional case where the illegality or impropriety ... is grave and either so calculated or so entrenched that it is clear that considerations of public policy relating to the administration of criminal justice require ... [its] exclusion" [F96] . And in cases where "illegal police conduct is itself the principal offence ... or itself constitutes an essential ingredient of the charged offence" [F97] , their Honours observed that "police illegality and the threat to the rule of law ... assume a particularly malignant aspect" [F98] , but allowed that, if the action where disowned by those in higher authority and appropriate action taken, it would be unlikely that "considerations of public policy relating to the integrity of the administration of criminal justice" would require exclusion of the evidence in question [F99] .
77. Although Mason CJ, Deane and Dawson JJ anchored the public policy considerations which underpin the Ridgeway discretion in "the integrity of the administration of criminal justice" [F100] , they stopped short of the view which I took, namely that the prosecution of an offence, which is the culmination of illegal action on the part of law enforcement authorities, is an abuse of process because its "inevitable consequence ... is to weaken public confidence in the administration of justice." [F101] Accordingly, it follows from what was said by Mason CJ, Deane and Dawson JJ in Ridgeway and, also, from the fact that Ridgeway identified a discretion rather than a rule of general application that it cannot be said that every prosecution for an offence induced by the illegal action of law enforcement officers weakens confidence in the judicial process.
78. It is necessary now to consider s 15X. Given that s 15G(2) expressly provides that "[s]ubject to section 15X, [Pt 1AB] is not intended to limit a discretion ... to exclude evidence ... or ... to stay criminal proceedings", s 15X must be construed strictly in accordance with its terms. And when so construed, two matters emerge. The first is that it does not purport to negate the existence of the Ridgeway discretion. Rather, s 15X necessarily acknowledges its existence by directing that "[i]n determining ... whether evidence that narcotic goods were imported into Australia in contravention of the Customs Act 1901 should be admitted, the fact that a law enforcement officer committed an offence ... is to be disregarded".
79. The second matter which emerges when s 15X is construed according to its terms is that the only matter it excludes from consideration is the fact that a law enforcement officer committed an offence. It does not, for example, direct that the consequences of the unlawful conduct be disregarded: thus, it does not require a court to disregard resultant unfairness to an accused or to the trial process. Nor does it direct that the consequences of the admission of the evidence in question be disregarded: thus, it does not require a court to ignore the tendency of the evidence to bring the administration of justice into disrepute, if that be the case. Nor does it direct a court to disregard associated conduct, such as intentionally inducing the accused to commit an offence which he or she would not otherwise have the intention to commit. That is a matter which the Parliament clearly intended should deprive law enforcement officers of immunity from criminal liability in relation to controlled operations conducted after Pt 1AB came into force and it would be contrary to all canons of construction to treat s 15X as requiring it to be disregarded in cases involving controlled operations started before then.
80. Properly construed, s 15X does no more than exclude the bare fact of illegality on the part of law enforcement officers from consideration when determining whether the Ridgeway discretion should be exercised in favour of an accused person. So construed, it is clear that it does not prevent independent determination of the question whether that evidence should be excluded or, more to the point, independent determination of guilt or innocence. And so construed, it is also clear that it neither authorises nor requires a court to proceed in circumstances which bring or tend to bring the administration of justice into disrepute. And although it is perhaps not quite so clear, it does not offend against the requirements of equal justice.
81. As already indicated, s 15X does not negate the Ridgeway discretion. It leaves the discretion to be exercised in any case in which it is invoked and, in that respect, the applicant's situation is no different from that which obtained in Ridgeway . And the principle of equality before the law is not infringed simply because, in the exercise of a discretion of the kind identified in Ridgeway , evidence is or may be excluded in one case and not in another. Indeed, it is the very essence of a discretion of that kind that the result of its exercise may vary according to the circumstances of the case. And, in my view, the principle of equality before the law is not infringed simply because s 15X directs that the fact that a law enforcement officer engaged in unlawful conduct is to be disregarded in any case in which that section applies.
82. Cases which arise after Pt 1AB came into force involve a circumstance not present in Ridgeway . When Ridgeway was decided, it was necessarily to be taken that Parliament had set its face against the importation of narcotic drugs by law enforcement officers, even where importation was part of a controlled operation. Parliament has now made plain its view that drug offenders should not escape prosecution simply because law enforcement officers have broken the law by importing the drugs involved in the offences with which they are charged. That consideration might properly result in the Ridgeway discretion being exercised differently, even if the facts are not otherwise distinguishable from those of that case. However, it is a matter for the trial judge whether that consideration has that consequence in this case.
83. It is necessary to say something of the argument that s 15X is directed to a limited number of persons who are known to law enforcement authorities. That argument was developed by reference to the decision of the Privy Council in Liyanage v. The Queen [F102] , a case concerned with legislation which was "clearly aimed at particular known individuals" [F103] and involved a "legislative plan ex post facto to secure the conviction ... of those ... individuals" [F104] . It was held in that case that the legislation infringed the independence of the judiciary as mandated by the Constitution of Ceylon. In reaching its decision, the Privy Council emphasised that the legislation lacked generality but said that "not ... every enactment ... which can be described as ad hominem and ex post facto must inevitably usurp or infringe the judicial power." [F105] I agree. If legislation which is specific rather than general is such that, nevertheless, it neither infringes the requirements of equal justice nor prevents the independent determination of the matter in issue, it is not, in my view, invalid. And as already indicated, s 15X does not offend in either respect.
84. The argument that s 15X is invalid fails. And in my view, the argument that s 15X does not apply in cases in which a stay has already been granted should be rejected for the reasons given by Hayne J. The matter should be remitted to the County Court to be determined in accordance with law.