Nicholas v R

193 CLR 173

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(Judgment by: Brennan CJ)

NICHOLAS v REGINA

Court:

Judges:
Brennan CJToohey
Gaudron
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

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Judgment by:
Brennan CJ

1. The accused, David Michael Nicholas, was charged on indictment in the County Court of Victoria on four counts to which he pleaded not guilty. The first two counts alleged the commission of offences against s 233B of the Customs Act 1901 (Cth); the last two counts alleged offences against s 73(1) of the Drugs Poisons and Controlled Substances Act 1981 (Vic). The prohibited imports to which the Commonwealth offences allegedly related were heroin of a traffickable quantity which had been imported into Australia by Australian and Thai law enforcement officers in contravention of s 233B of the Customs Act .

2. On 27 May 1996 Judge Crossley, in accordance with the judgment of this Court in Ridgeway v. The Queen ^[F1] , granted an application on behalf of the accused that his trial on counts 1 and 2 be permanently stayed. Subsequently the Parliament enacted the Crimes Amendment (Controlled Operations) Act 1996 (Cth) ("the Amending Act") which inserted Pt 1AB into the Crimes Act 1914 (Cth). That Act is intended to reverse the effect of this Court's decision in Ridgeway . On 5 August 1996 the prosecution applied to Judge Crossley to vacate the order permanently staying the trial of the accused on counts 1 and 2, basing the application solely upon the fact that the Amending Act had come into force since the making of the order of 27 May 1996. The cause pending in the County Court between the accused and the Crown was removed into this Court pursuant to s 40(1) of the Judiciary Act 1903 (Cth) in order to determine whether Div 3 of Pt 1AB of the Crimes Act (as inserted by the Amending Act) is a valid law.

The Amending Act

3. Section 15G in Div 1 of Pt 1AB defines the objects of that Part. Sub-section (1) of s 15G provides, inter alia:

"The objects of this Part are:

(a)

to exempt from criminal liability law enforcement officers who, in the course of controlled operations authorised as provided under this Part:

(i)

take an active part, or are otherwise involved, in the importation or exportation of narcotic goods; or

(ii)

are involved in activities relating to the possession of narcotic goods; and

(b)

...

(c)

to provide that evidence of importation of narcotic goods obtained through a controlled operation:

(i)

started before the commencement of this Act; and

(ii)

in which the Australian Federal Police and the Australian Customs Service acted in concert to allow the narcotic goods to pass through the Customs;

is not to be rejected because of the unlawful conduct of law enforcement officers who took an active part, or were otherwise involved, in the importation of the narcotic goods."

4. Division 2 of Pt 1AB contains a series of provisions which exempt law enforcement officers and members of the police force of a State from criminal liability for a "narcotic goods offence" if the conduct that would otherwise constitute that offence is engaged in in the course of duty for the purposes of a "controlled operation" provided "there is in force a certificate given under section 15M that authorises the controlled operation": s 15I. A "controlled operation" is defined by s 15H as an operation which, inter alia, "is carried out for the purpose of obtaining evidence that may lead to the prosecution of a person for an offence against section 233B of the Customs Act 1901 ". Section 15M prescribes the criteria which govern the issuing of a certificate by an "authorising officer" ^[F2] . Although sub-ss (1) and (3) of s 15I exempt law enforcement officers and State police officers from criminal liability for a narcotics offence in the circumstances to which those sub-sections respectively apply, s 15I(6) provides as follows:

"If, because of subsection (1) or (3), a person who has imported narcotic goods into Australia is not liable for an offence under paragraph 233B(1)(b) of the Customs Act 1901 , the narcotic goods are, nevertheless, for the purposes of section 233B of that Act, taken to be goods imported into Australia in contravention of that Act."

The provisions of Div 2 of Pt 1AB can relate only to controlled operations that start after Pt 1AB commenced.

5. Division 3 of Pt 1AB, which is the division relevant to the present case, applies only to controlled operations that started before the commencement of Pt 1AB: s 15V(1). That Division covers prosecutions which were pending and which would otherwise have been affected by the judgment in Ridgeway at the time when Pt 1AB came into force. Division 3 affects the exercise of a trial judge's discretion to exclude evidence in a prosecution for an offence against s 233B or an associated offence ^[F3] . The relevant provision is s 15X which reads as follows:

"Evidence of illegal importation etc. of narcotic goods not to be rejected on ground of unlawful conduct by law enforcement officer

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, if:

(a)

the law enforcement officer, when committing the offence, was acting in the course of duty for the purposes of a controlled operation; and

(b)

for the purposes of the operation:

(i)

the Australian Federal Police, by written request signed by one of its members and purported to be made in accordance with the Ministerial Agreement, asked a Regional Director for a State or Territory that the narcotic goods, while subject to the control of the Customs (within the meaning of the Customs Act 1901 ), be exempted from detailed scrutiny by officers of the Australian Customs Service; and

(ii)

the request for exemption was granted."

6. In the Explanatory Memorandum which accompanied the Bill for the Amending Act, the purpose of s 15X was stated to be "to alter the rule of evidence laid down in Ridgeway v. R (1995) 129 ALR 41 , where certain circumstances relating to the involvement of law enforcement officers in the importation of narcotic goods in the course of a controlled operation can be shown to have existed".

7. Counsel for the accused submits that s 15X is an invalid attempt by the Parliament to interfere with or derogate from the judicial power of the Commonwealth, to interfere with the judicial process and to direct a court as to the manner and outcome of the exercise of its jurisdiction.

The Operation and Effect of s 15X

8. To appreciate the effect of s 15X, it is necessary to go back to the principle which emerges from the judgments of this Court in Ridgeway ^[F4] . Ridgeway had been convicted in the Supreme Court of South Australia of having in his possession without reasonable excuse a traffickable quantity of heroin to which s 233B of the Customs Act applied and which had been imported into Australia in contravention of that Act. He appealed against his conviction, contending that the trial judge ought to have stayed permanently the proceedings against him or ought to have excluded evidence of the importation on discretionary grounds. The discretion was said ^[F5] to arise because the heroin had been illegally imported under the auspices of, and with the active involvement of, the Australian Federal Police so that it could be supplied to Ridgeway.

9. Mason CJ, Deane and Dawson JJ noted ^[F6] that:

"The illegal importation of the heroin which members of the Australian Police Force organised and in which they were involved was the very conduct against which the legislative provision creating the offence of which the appellant was convicted was primarily directed."

The factors warranting rejection of the evidence of importation on public policy grounds were found to be extremely strong. Their Honours identified those factors as "grave and calculated police criminality; the creation of an actual element of the charged offence; selective prosecution; absence of any real indication of official disapproval or retribution; the achievement of the objective of the criminal conduct if evidence be admitted". Toohey J and I each agreed ^[F7] that evidence of the importation should have been excluded for substantially the same reasons as those advanced in the joint judgment. Gaudron J held that the proceedings ought to have been stayed because public confidence in the courts is necessarily diminished where the illegal actions of law enforcement agents culminate in the prosecution of an offence resulting from their own criminal acts. Such proceedings, her Honour held, were an abuse of process ^[F8] . McHugh J dissented. Mason CJ, Deane and Dawson JJ favoured an order permanently staying the proceedings on the ground that, once evidence of illegal importation was excluded, the proceedings would inevitably fail ^[F9] . Gaudron J also favoured a stay to remedy the abuse of process. Toohey J and I, holding that once the evidence was excluded, there was no evidence to support an element of the offence for which Ridgeway had been convicted, favoured an order substituting a verdict of acquittal for Ridgeway's conviction.

10. Division 2 of Pt 1AB exempts from criminal liability law enforcement officers and State police officers who take part in controlled operations that are authorised by an authorising officer. Consequently, evidence of their conduct in importing narcotic goods or otherwise taking part in authorised controlled operations is no longer to be excluded on the footing that such conduct is an intentional flouting of a law designed to suppress the supply of narcotic goods, committed in execution of a settled and deliberate official policy ^[F10] . In cases to which Div 2 applies, at the trial of a person charged with an offence under s 233B of the Customs Act or an associated offence, conduct to which sub-ss (1) and (3) of s 15I apply can no longer weigh against admission of evidence of that conduct in proof of an element in the offence charged.

11. But sub-ss (1) and (3) of s 15I do not apply to conduct in which law enforcement officers or State police officers engaged before Pt 1AB commenced. The consequences of that conduct are left to s 15X. That section relates to the exercise of the Ridgeway discretion in respect of the illegal importation of narcotic goods by law enforcement officers in a controlled operation that started before s 15X commenced. Where evidence of such conduct is tendered against an accused in proof of an element of an offence under s 233B of the Customs Act or an associated offence, evidence of that conduct will be rejected in accordance with Ridgeway unless s 15X applies. Section 15X applies when the narcotic goods were imported in the course of duty for the purpose of a controlled operation certified ^[F11] to have been engaged in pursuant to the consent of a Regional Director of Customs that the imported narcotic goods be exempted from detailed scrutiny by officers of the Australian Customs Service while those goods were subject to the control of Customs (hereafter an "authorised controlled operation"). In exercising a court's discretion to decide whether evidence of the importation of narcotic goods in an authorised controlled operation should be admitted or rejected, the court is directed to disregard the fact that a law enforcement officer committed an offence in importing those narcotic goods. If that fact had been disregarded in Ridgeway , evidence of the illegal importation of the heroin of which Ridgeway was found to have been in possession would have been admitted, there being no other reason for rejecting evidence relevant to prove one of the elements of the offence. In the present case, if s 15X is valid, if the heroin referred to in the indictment was imported in an authorised controlled operation and if there is no other reason for rejecting evidence of its illegal importation, that evidence would be admitted on a trial of the accused.

12 The accused submits that s 15X is invalid. The argument proceeds on three grounds. First, the accused contends that s 15X invalidly purports to direct a court to exercise its discretionary power in a manner or to produce an outcome which is inconsistent with the essential character of a court or with the nature of judicial power. Secondly, the accused argues that, as s 15X applies to identifiable cases and is directed specifically to the accused in those cases rather than to the public generally, s 15X purports to usurp judicial power. Thirdly, the accused submits that an attempt to sterilise the Ridgeway discretion invalidly undermines the integrity of the court's processes and public confidence in the administration of justice. Alternatively to these arguments, it is submitted that s 15X on its true construction does not apply to the accused whose trial had already been permanently stayed. The section, it is said, applies only to future trials and does not purport to affect orders that have been made to stay a trial. It is convenient to consider these arguments seriatim.

1. Consistency with the Essential Character of a Court or with the Nature of Judicial Power

13. In Chu Kheng Lim v. Minister for Immigration ^[F12] , Brennan, Deane and Dawson JJ pointed out that the grants of legislative power contained in s 51 of the Constitution do not "extend to the making of 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".

14. The nature of judicial power and the essential character of the courts which are charged with its exercise can be ascertained in part from the Constitution, in part from the common law. The common law informs the institutions of government ^[F13] - Parliament, the Executive and the Judicature - in which the legislative, executive and judicial powers of the Commonwealth are reposed respectively by ss 1, 61 and 71 of the Constitution.

15. The judicial power of the Commonwealth is vested in a court when the Constitution or a law of the Commonwealth confers jurisdiction to exercise judicial power in specified matters. Having heard and determined a matter in which it has jurisdiction, the court exercises the judicial power of the Commonwealth by the making of its judgment or order. Subject to the Constitution, the Parliament can prescribe the jurisdiction to be conferred on a court but it cannot direct the court as to the judgment or order which it might make in exercise of a jurisdiction conferred upon it. So much appears from a passage in the joint judgment in Chu Kheng Lim ^[F14] in which s 54R of the Migration Act 1958 (Cth) was held by Brennan, Deane and Dawson JJ to be invalid for the following reason, inter alia:

"In terms, s 54R is a direction by the Parliament to the courts as to the manner in which they are to exercise their jurisdiction. It is one thing for the Parliament, within the limits of the legislative power conferred upon it by the Constitution, to grant or withhold jurisdiction. It is a quite different thing for the Parliament to purport to direct the courts as to the manner and outcome of the exercise of their jurisdiction. The former falls within the legislative power which the Constitution, including Ch III itself, entrusts to the Parliament. The latter constitutes an impermissible intrusion into the judicial power which Ch III vests exclusively in the courts which it designates."

16. One of the exclusively judicial functions of government is the adjudgment and punishment of criminal guilt as the joint judgment in Chu Kheng Lim pointed out ^[F15] :

"There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character. The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth. That function appertains exclusively to ^[F16] and 'could not be excluded from' ^[F17] the judicial power of the Commonwealth ^[F18] . That being so, Ch III of the Constitution precludes the enactment, in purported pursuance of any of the sub-sections of s 51 of the Constitution, of any law purporting to vest any part of that function in the Commonwealth Executive."

The function of adjudication and punishment of criminal guilt under a law of the Commonwealth can be exercised only by those courts in which the necessary jurisdiction is vested pursuant to Ch III of the Constitution ^[F19] . Those courts include, relevantly for present purposes, the County Court of Victoria ^[F20] .

17. A court in which criminal jurisdiction under a law of the Commonwealth is vested pursuant to Ch III of the Constitution exercises the judicial power of the Commonwealth when it adjudges and punishes criminal guilt. Judicial power, though never exhaustively defined, was described in a familiar passage in the judgment of Griffith CJ in Huddart, Parker & Co Proprietary Ltd v. Moorehead ^[F21] :

"[T]he words 'judicial power' as used in sec 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action."

18. As the exercise of judicial power results in the making of a "binding and authoritative" decision, that decision itself becomes the charter for the future of the rights and liabilities with which it deals and the lawful authority for the taking of action in accordance with its terms. In the criminal jurisdiction, an adjudication of guilt and the imposition of sentence become the authority for, and the duty of, the Executive government to carry the sentence into execution.

19. To exercise judicial power, a court is bound to take the essential steps identified by Mason, Murphy, Brennan and Deane JJ in Fencott v. Muller ^[F22] . Referring to Huddart, Parker their Honours said:

"The unique and essential function of the judicial power is the quelling of such controversies by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion."

As the rights and liabilities prescribed by a court's judgment (including a liability to undergo punishment in accordance with a sentence imposed by a criminal court) declare or are founded on the antecedent rights and liabilities of the parties (including a right or liability to the exercise of a judicial discretion), the court must find the facts and apply the law which, at the relevant time ^[F23] , prescribe those antecedent rights and liabilities. The finding of facts is a curial determination of the actual existence or occurrence of the acts, matters and things on which criminal liability for the offence charged depends. It is a function which, on the trial on indictment of a person charged with an offence against a law of the Commonwealth, is reposed in a jury ^[F24] . In finding facts, the jury is restricted to the evidence laid before them supplemented by facts commonly known that need no proof.

20. Some characteristics of a court flow from a consideration of this function, including the duty to act and to be seen to be acting impartially ^[F25] . We are not concerned with these characteristics in the present case, except in so far as the duty to act impartially is inconsistent with the acceptance of instructions from the legislature to find or not to find a fact or otherwise to exercise judicial power in a particular way. A law that purports to direct the manner in which judicial power should be exercised is constitutionally invalid ^[F26] . However, a law which merely prescribes a court's practice or procedure does not direct the exercise of the judicial power in finding facts, applying law or exercising an available discretion. For the purposes of the accused's first submission, the function of a court to which s 15X relates is the finding of facts on which the adjudication and punishment of criminal guilt depend.

21. Section 15X does not impede or otherwise affect the finding of facts by a jury. Indeed, it removes the barrier which Ridgeway placed against tendering to the jury evidence of an illegal importation of narcotic goods where such an importation had in fact occurred. Far from being inconsistent with the nature of the judicial power to adjudicate and punish criminal guilt, s 15X facilitates the admission of evidence of material facts in aid of correct fact finding.

22. However, to identify the adjudication of criminal guilt as the relevant exercise of judicial power is not to deal with the effect of s 15X on which the accused relies to challenge its validity. The accused's argument is not that the adjudication by the jury of criminal guilt is affected by s 15X but that s 15X governs the determination by the trial judge of the challenge to the admission of evidence of an illegal importation. The argument assumes that the exercise of discretion to admit or reject evidence is itself an exercise of judicial power distinct from a step in the practice or procedure which governs the exercise of judicial power.

23. The judicial power of a court is defined by the matters in which jurisdiction has been conferred upon it. The conferral of jurisdiction prima facie carries the power to do whatever is necessary or convenient to effect its exercise. The practice and procedure of a court may be prescribed by the court in exercise of its implied power to do what is necessary for the exercise of its jurisdiction ^[F27] but subject to overriding legislative provision governing that practice or procedure. The rules of evidence have traditionally been recognised as being an appropriate subject of statutory prescription. A law prescribing a rule of evidence does not impair the curial function of finding facts, applying the law or exercising any available discretion in making the judgment or order which is the end and purpose of the exercise of judicial power. E S Roscoe ^[F28] , observing that the common law had produced a law of evidence of such high technicality as "justly merited the wholesale condemnation of Bentham" credits Lord Denman with the initiation of the move for legislative reform. The preamble to the Evidence Act 1843 (Imp) ^[F29] shows the need which was perceived to warrant legislative intervention:

"Whereas the Inquiry after Truth in Courts of Justice is often obstructed by Incapacities created by the present Law, and it is desirable that full Information as to the Facts in Issue, both in Criminal and in Civil Cases, should be laid before the Persons who are appointed to decide upon them"

it was enacted that certain evidentiary rules be changed. Even though judicial opinion was opposed to the enactment of the Criminal Evidence Act 1898 (Imp) ^[F30] , it would not have occurred to the Imperial Parliament that a legislative power to prescribe rules of evidence might be regarded as a usurpation of judicial power.

24. In The Commonwealth v. Melbourne Harbour Trust Commissioners ^[F31] , Knox CJ, Gavan Duffy and Starke JJ said:

"A law does not usurp judicial power because it regulates the method or burden of proving facts."

And in Williamson v. Ah On ^[F32] , Higgins J said that "the evidence by which an offence may be proved is a matter of mere procedure". He added:

"The argument that it is a usurpation of the judicial power of the Commonwealth if Parliament prescribe what evidence may or may not be used in legal proceedings as to offences created or provisions made by Parliament under its legitimate powers is, to my mind, destitute of foundation."

However, Isaacs J pointed out a difference between a rule of evidence and a provision which, though in the form of a rule of evidence, is in truth an impairment of the curial function of finding the facts and hence an usurpation of judicial power. He said ^[F33] :

"It is one thing to say, for instance, in an Act of Parliament, that a man found in possession of stolen goods shall be conclusively deemed to have stolen them, and quite another to say that he shall be deemed to have stolen them unless he personally proves that he got them honestly."

If a court could be directed by the legislature to find that an accused, being found in possession of stolen goods, had stolen them, the legislature would have reduced the judicial function of fact finding to the merest formality. The legislative instruction to find that the accused stole the goods might prove not to be the fact. The legislature itself would have found the fact of stealing. Isaacs J continued:

"The first is a parliamentary arbitrary creation of a new offence of theft, leaving no room for judicial inquiry as to the ordinary offence; the second is only an evidentiary section, altering the burden of proof in the ordinary case of theft, and requiring certain pre-appointed evidence to fit the special circumstances in the interests of justice, because the accused best knows the facts, and leaving the Court with these provisions to examine the facts and determine the matter."

The reversal of an onus of proof affects the manner in which a court approaches the finding of facts but is not open to constitutional objection provided it prescribes a reasonable approach to the assessment of the kind of evidence to which it relates. Rich and Starke JJ held ^[F34] that a grant of power to make laws for the peace, order and good government of a territory carried the power "to enact whatever laws of evidence it thinks expedient, and in particular justifies laws regulating the burden of proof, both in civil and criminal cases ... and it is not for the Courts of law to say whether the power has been exercised wisely or not". The same view was taken by Gibbs and Mason JJ in Milicevic v. Campbell ^[F35] and by Gibbs CJ in Sorby v. The Commonwealth ^[F36] .

25. In Rodway v. The Queen ^[F37] , the Court held that a provision which changed the law relating to the necessity for corroboration of the evidence of a victim of crime was a provision governing practice and procedure. As a procedural law, it was to be applied on the trial of an offender for an offence committed prior to the legislative change. This decision accords with the view expressed in Wigmore on Evidence ^[F38] :

"Rules of evidence are merely methods for ascertaining facts. It must be supposed that a change of the law merely makes it more likely that the fact will be truly ascertained, either by admitting evidence whose former suppression - or by suppressing evidence whose former admission - helped to conceal the truth. In either case no fact has been taken away from the party; it is merely that good evidence has been given the one or bad evidence been taken from the other."

26. If s 15X had simply declared that evidence of an illegal importation should be admitted, denying any discretion in the trial judge to exclude the evidence, the provision would simply have enlarged the evidentiary material available to a jury to assist it to find the facts truly. It would have been a mere procedural law assisting in the court's finding of material facts. No exception could be taken to such a law consistently with the authorities cited above. But s 15X leaves the trial judge with a discretion to reject evidence of importation of narcotic goods in an authorised controlled operation, requiring only that in exercising the discretion, the illegal conduct of law enforcement officers should be disregarded. The existence of the judicial discretion does not alter the classification of the law as a law governing the admission of evidence and therefore a law governing procedure. The procedure for determining the admission of evidence of illegal importation is affected, but the judicial function of fact finding is unchanged and the judicial power to be exercised in determining guilt remains unaffected. The first ground of objection to the validity of s 15X fails.

2. Application of s 15X only to Identifiable Cases

27. At the time when Div 3 of Pt 1AB commenced to operate, there was a finite number of cases in which an authorised controlled operation for the illegal importing of narcotic goods had occurred. The number of prosecutions which had been instituted in respect of such goods was necessarily limited and the identity of those against whom charges had been laid were known by the prosecuting authorities. When the present proceedings were removed into this Court, counsel for the Crown stated that there were "half a dozen in New South Wales and Victoria". It was possible that further charges would be laid for offences committed after Div 3 commenced in respect of narcotic goods illegally imported in an authorised controlled operation before Div 3 commenced.

28. Relying on the limited number of cases to which Div 3 might apply, the accused argues that s 15X targets a limited group of alleged offenders and, by removing the linch-pin on which the Ridgeway discretion to exclude evidence depends, attempts to secure their conviction. This was said to attract the invalidating principle which the Privy Council expressed in Liyanage v. The Queen ^[F39] . In that case, legislation which had been enacted by the Parliament of Ceylon to deal with the trial of those who had been arrested after an attempted coup d'etat was held to be invalid. The Privy Council said ^[F40] :

"Mr Gratiaen succinctly summarises his attack on the Acts in question as follows. The first Act was wholly bad in that it was a special direction to the judiciary as to the trial of particular prisoners who were identifiable ... and charged with particular offences on a particular occasion. The pith and substance of both Acts was a legislative plan ex post facto to secure the conviction and enhance the punishment of those particular individuals. It legalised their imprisonment while they were awaiting trial. It made admissible their statements inadmissibly obtained during that period. It altered the fundamental law of evidence so as to facilitate their conviction. And finally it altered ex post facto the punishment to be imposed on them.

In their Lordships' view that cogent summary fairly describes the effect of the Acts. As has been indicated already, legislation ad hominem which is thus directed to the course of particular proceedings may not always amount to an interference with the functions of the judiciary. But in the present case their Lordships have no doubt that there was such interference; that it was not only the likely but the intended effect of the impugned enactments; and that it is fatal to their validity."

The principle to be derived from Liyanage applies only to legislation that can properly be seen to be directed ad hominem . It was so held by Mason CJ, Dawson and McHugh JJ in Leeth v. Commonwealth ^[F41] :

"[L]egislation may amount to a usurpation of judicial power, particularly in a criminal case, if it prejudges an issue with respect to a particular individual and requires a court to exercise its function accordingly (see Liyanage v. The Queen ). It is upon this principle that bills of attainder may offend against the separation of judicial power (see Polyukhovich v. The Commonwealth ). But a law of general application which seeks in some respect to govern the exercise of a jurisdiction which it confers does not trespass upon the judicial function."

The cases to which s 15X applies are not only those in which prosecutions were pending when it came into force but any prosecution which thereafter required proof of illegal importation in an authorised controlled operation started before Div 2 commenced. Section 15X is the key provision of Div 3 which complements Div 2 by ensuring that in no case where the relevant narcotic goods are imported in an authorised controlled operation should evidence of the importation be excluded by reason of the illegality of the conduct of the law enforcement officers who were involved in the importation. The provisions of Pt 1AB bear no resemblance to the provisions of the Acts which were held invalid in Liyanage . In that case, the legislation was directed specifically to the conviction and punishment of the offenders who had been arrested and were to be tried for their part in the attempted coup d'etat . In this case, Pt 1AB is directed to all cases of alleged offences against s 233B of the Customs Act and associated offences, whether committed before or after Pt 1AB commenced. The distinction between Div 2 and Div 3 is accounted for by the different ways chosen by the Parliament to achieve a reversal of the Ridgeway decision. In one way or the other, the Parliament ensured that the conduct of law enforcement officers in importing narcotic goods in an authorised controlled operation should not prevent the laying before the jury of evidence of the importation of the narcotic goods in respect of which other offenders were charged with an offence against s 233B of the Customs Act or an associated offence.

29. It is erroneous to suggest that Div 3 seeks to secure the conviction of those other offenders for the offences with which they were or will be charged. Division 3 is concerned with the effect of illegality on the part of law enforcement officers, not with the offences committed by others. Section 15G(2) leaves the court with its general power to exclude evidence of an importation in an authorised controlled operation if there should be reasons for rejecting the evidence other than the illegality of the conduct of the law enforcement officers. It remains for the court in each case in which an alleged offender is charged with an offence against s 233B or with an associated offence to determine whether the elements of the offence charged have been proved. In making its finding, the court will not be deprived of evidence of the importation of narcotic goods which have been imported in an authorised controlled operation merely because the law enforcement officers acting in the course of their duty were involved in the importation in circumstances covered by Div 2 or Div 3 (as the case may be).

30. The second ground of attack on the validity of s 15X also fails.

3. Undermining the Integrity of the Court's Processes and Public Confidence in the Administration of Justice

31. The accused submits that Ridgeway ^[F42] does not merely prescribe a rule of evidence but is an assertion of judicial power to exclude evidence in order to protect the public interest and to preserve public confidence in the administration of justice. To appreciate the nature of the Ridgeway discretion, it is necessary to trace briefly the development in Australian law of the public policy discretion to exclude evidence that is otherwise relevant and admissible.

32. In R v. Ireland ^[F43] , photographs of the right hand of an accused person were taken by police officers without any power to do so, the police having told the accused that he had to have his hand photographed. Barwick CJ observed ^[F44] that "the trial judge would have had a discretion to reject [the photographs] because of the manner in which they had been obtained." Speaking of evidence of facts or things procured by means that are unlawful at common law or by statute, he said ^[F45] :

"Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion."

In Bunning v. Cross , Stephen and Aickin JJ said ^[F46] :

"What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. ... [T]he discretionary process called for by Ireland ... [is] concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration."

Their Honours, emphasising that the police forces should not be free to disregard statutory safeguards for the individual, said ^[F47] :

"Were there to occur wholesale and deliberate disregard of these safeguards its toleration by the courts would result in the effective abrogation of the legislature's safeguards of individual liberties, subordinating it to the executive arm. This would not be excusable however desirable might be the immediate end in view, that of convicting the guilty. ... [I]t may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law." (Emphasis added.)

33. In Cleland v. The Queen ^[F48] , Deane J stressed the balance which had to be struck in exercising the public policy discretion, adding "impropriety" to "unlawfulness" as a factor to be weighed. Referring to the principle endorsed in Ireland and Bunning v. Cross , his Honour said ^[F49] :

"The rationale of this principle is to be found in considerations of public policy, namely, the undesirability that such unlawful or improper conduct should be encouraged either by the appearance of judicial approval or toleration of it or by allowing curial advantage to be derived from it. Its application involves a weighing, in the particular circumstances of each case, of the requirement of public policy that the wrongdoer be brought to conviction and the competing requirement of public policy referred to above, namely, that the citizen should be protected from unlawfulness or impropriety in the conduct of those entrusted with the enforcement of the law."

In Pollard v. The Queen ^[F50] , Deane J returned to the problem, citing what Stephen and Aickin JJ had said in Bunning v. Cross and proceeding:

"As that passage makes plain, the principal considerations of 'high public policy' which favour exclusion of evidence procured by unlawful conduct on the part of investigating police transcend any question of unfairness to the particular accused. In their forefront is the threat which calculated disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. It is the duty of the courts to be vigilant to ensure that unlawful conduct on the part of the police is not encouraged by an appearance of judicial acquiescence. In some circumstances, the discharge of that duty requires the discretionary exclusion, in the public interest, of evidence obtained by such unlawful conduct. In part, this is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct. In part it is necessary to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process." (Emphasis added.)

34. Ridgeway was an extension of the public policy discretion. The unlawfulness in that case was not in the conduct of police who were engaged in the collection of evidence of a crime committed, but in the conduct of law enforcement officers of the Executive Government who themselves committed a crime in order to establish an element of a further offence which they anticipated would be committed by another party. However, the underlying principle was that evidence needed for the conviction of the other party could be bought at "too high a price" and it was therefore necessary to balance the bringing of the other party to conviction and the "undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law" ^[F51] . In Ridgeway ^[F52] , Mason CJ, Deane and Dawson JJ said:

"The basis in principle of the discretion lies in the inherent or implied powers of our courts to protect the integrity of their processes. In cases where it is exercised to exclude evidence on public policy grounds, it is because, in all the circumstances of the particular case, applicable considerations of 'high public policy' ^[F53] relating to the administration of criminal justice outweigh the legitimate public interest in the conviction of the guilty."

35. It is clear that, in exercising the Ridgeway discretion, the court is balancing two competing public interests: the public interest in bringing to conviction an offender who has committed a crime and the public interest in upholding the law when law enforcement officers, the agents of the Executive Government, have deliberately flouted the law laid down by the Parliament or the common law. If the court were to disregard the illegal conduct of law enforcement officers and to admit evidence of that conduct, albeit the conduct was in flagrant and deliberate breach of the Parliament's statutory command, the unlawful conduct would itself have conferred a "curial advantage" ^[F54] on the law enforcement officers and the reception of evidence of the illegal conduct would "demean the court as a tribunal whose concern is in upholding the law" ^[F55] .

36. But it is a mistake to see the Ridgeway discretion as a device calculated to protect the reputation of the courts. It simply reflects the court's duty to ensure that it does not exercise its discretionary powers to achieve an objective which flagrant and deliberate breaches of the law are designed to achieve, especially when the breaches are committed by agents of the Executive Government whose duty is to uphold the law. By weighing the competing public interest factors, the court seeks to strike the right balance between them. It is by a proper balancing of the interests served by the general criminal law - the law which governs the conduct of law enforcement officers as well as the general public - against the interests served by the law relating to the admission of evidence of guilt in a criminal prosecution that the integrity of the court's processes are preserved and the repute of the courts as the administrators of criminal justice is protected.

37. To suggest that the statutory will of the Parliament, expressed in s 15X, is to be held invalid because its application would impair the integrity of the court's processes or bring the administration of criminal justice into disrepute is, in my respectful opinion, to misconceive both the duty of a court and the factors which contribute to public confidence in the administration of criminal justice by the courts. It is for the Parliament to prescribe the law to be applied by a court and, if the law is otherwise valid, the court's opinion as to the justice, propriety or utility of the law is immaterial. Integrity is the fidelity to legal duty, not a refusal to accept as binding a law which the court takes to be contrary to its opinion as to the proper balance to be struck between competing interests. To hold that a court's opinion as to the effect of a law on the public perception of the court is a criterion of the constitutional validity of the law, would be to assert an uncontrolled and uncontrollable power of judicial veto over the exercise of legislative power. It would elevate the court's opinion about its own repute to the level of a constitutional imperative. It is the faithful adherence of the courts to the laws enacted by the Parliament, however undesirable the courts may think them to be, which is the guarantee of public confidence in the integrity of the judicial process and the protection of the courts' repute as the administrator of criminal justice.

38. The fact that, s 15X apart, on the trial of an offender for an offence against s 233B of the Customs Act or for an associated offence, the courts would reject evidence of the illegal importation of the relevant narcotic goods by a law enforcement officer does not establish that s 15X is beyond the legislative power of the Parliament. Once the Parliament has enacted s 15X, it is the duty of the courts to apply it. In doing so, the courts defer to the legislative competence of the Parliament and affirm their own adherence to the rule of law. In striking a balance between the factors relevant to the Ridgeway discretion, subject to the conditions prescribed by Div 3 of Pt 1AB, the Parliament expresses where the balance of public interest lies. The declaration of the balance of public interest devolves on the court when the Parliament is silent, but once the Parliament has spoken, it is the voice of the Parliament that declares where the balance of the public interest lies.

39. No attack on the validity of s 15X succeeds.

Does s 15X Apply to the Present Case?

40. The accused submits that s 15X is clearly intended to operate in the future, without prejudice to a right which he acquired by the making of the permanent stay order. Section 15X, so the argument runs, is not dealing with mere matters of procedure but is directed to the exercise of the public policy discretion which determines rights and obligations. The argument mistakes the effect of a stay order and raises a false dichotomy between matters of procedure and the public policy discretion.

41. An order staying a criminal trial is not a judicial decree conferring an immunity from punishment for a criminal offence. It is not the equivalent of a verdict and judgment of acquittal. It confers no vested right. A stay does not determine the matter charged in the indictment. There is concededly power to lift a stay and, if the stay be lifted, the trial on the indictment can proceed. Further, for reasons earlier stated, s 15X bears the character of a procedural law. Like the statute considered in Rodway ^[F56] , s 15X is a "statute which prescribes the manner in which the trial of a past offence is to be conducted". It applies to the proceeding between the Crown and the accused which, though stayed, is still pending. Section 15X destroys the basis on which the permanent stay was ordered. The stay is no longer appropriate. The issues raised on the indictment between the Crown and the accused must now be determined, either by plea or by verdict.

42. Accordingly, the order staying the trial should be lifted and the matter remitted for trial to the County Court of Victoria. As the question raised is one that affects the admissibility of evidence in a pending criminal proceeding, there should be no order for costs.