Nicholas v R

193 CLR 173

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(Decision by: Gummow J)

NICHOLAS v REGINA

Court:

Judges: Brennan CJ
Toohey
Gaudron
McHugh

GummowKirby
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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Decision by:
Gummow J

The Jurisdiction of the County Court

130. The accused, David Michael Nicholas, was presented in the County Court of Victoria on an indictment, two of the four counts in which allege offences against s 233B of the Customs Act 1901 (Cth) ("the Customs Act"). The County Court thus was seized of a matter arising under a law of the Commonwealth within the meaning of s 76(ii) of the Constitution. The County Court was invested with federal jurisdiction, pursuant to s 77(iii) of the Constitution, by s 68 of the Judiciary Act 1903 (Cth) ("the Judiciary Act").

131. A further operation of the Judiciary Act is that, at the trial, the laws of the State of Victoria relating to evidence will be binding on the County Court, except as otherwise provided by the Constitution or the laws of the Commonwealth (s 79), and that so far as the laws of the Commonwealth are inapplicable or their provisions are insufficient to carry them into effect, the common law in Australia as modified by the Constitution and by the statute law in force in Victoria will govern the exercise of federal jurisdiction by the County Court (s 80). No Victorian statute law is in question in this case. The Evidence Act 1995 (Cth) does not apply to State courts (s 4(1)), with the exception of certain provisions which have an extended application in all proceedings in an "Australian court" (s 5) ^[F164] . Rather, the question is whether another, and particular, law of the Commonwealth with respect to certain evidence is applicable in the County Court to displace what otherwise would be the operation of s 80 of the Judiciary Act which would "pick up" the common law.

132 The two counts alleging offences against s 233B(1)(c) of the Customs Act concern the accused's alleged possession or attempt to obtain possession of heroin on 24 September 1994 ^[F165] . This was before the commencement on 8 July 1996 of the Crimes Amendment (Controlled Operations) Act 1996 (Cth) ("the 1996 Act"). The 1996 Act inserted a new Pt 1AB into the Crimes Act 1914 (Cth) ("the Crimes Act"). This comprises ss 15G-15X. Part 1AB is headed "Controlled operations for obtaining evidence about certain offences relating to narcotic goods". Division 3 (ss 15V-15X) is headed "Controlled operations started before commencement of this Part". Section 15G(1)(c) states as one of the objects of Pt 1AB:

"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."

133. The uncontested evidence given at the accused's committal established that the heroin the subject of the charges against the accused was imported into Australia by law enforcement officers in contravention of s 233B of the Customs Act. The Crown alleges that this was part of a "controlled operation" to which pars (a) and (b) of s 15X apply ^[F166] . So far as is presently material, a "controlled operation" is an operation that is carried out for the purpose of obtaining evidence that may lead to the prosecution of a person for an offence against s 233B of the Customs Act or an "associated offence" and may involve law enforcement officers engaging in conduct that would constitute an offence (s 15H) ^[F167] .

134. It would follow from s 15X that at the trial of the accused, in determining whether evidence that the heroin was imported into Australia in contravention of the Customs Act should be admitted, the County Court would be obliged to disregard the fact that law enforcement officers committed offences in importing the heroin.

135. Were it not for s 15X, s 80 of the Judiciary Act would operate to make applicable the common law principle propounded by the majority in Ridgeway v. The Queen ^[F168] . This is that the discretion (or perhaps, more accurately, the power) to exclude evidence on the ground of public policy extends to the exclusion of evidence of an offence, or an element of an offence, procured by unlawful conduct on the part of law enforcement officers.

136 However, s 80 applies only "[s]o far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect". Section 15X is expressed to apply "for the purposes of a prosecution for an offence against section 233B" of the Customs Act. These terms are apt to embrace a prosecution in a State court exercising federal jurisdiction invested, pursuant to s 77(iii) of the Constitution, by s 68 of the Judiciary Act. The consequence is that the common law principle explained in Ridgeway is displaced by s 15X of the Crimes Act in relation to certain prosecutions.

The Constitutional Question

137. The accused contends that s 15X is invalid. It was to resolve that question that this Court, acting pursuant to s 40 of the Judiciary Act, removed into this Court the cause pending in the County Court.

138 The accused takes as his starting point the separation of judicial power from the legislative and executive powers of the Commonwealth established by Ch III of the Constitution. He referred to the statement by five members of the Court in Wilson v. The Minister for Aboriginal & Torres Strait Islander Affairs ^[F169] :

"The institutional separation of the judicial power assists the public perception, central to the system of government as a whole, that these controversies have been quelled by judges acting independently of either of the other branches of government."

The next step in the argument reflects what was said by Latham CJ in British Medical Association v. The Commonwealth ^[F170] , which was approved in Queen Victoria Memorial Hospital v. Thornton ^[F171] and in R v. Murphy ^[F172] . Latham CJ said ^[F173] :

"There is no provision in the Constitution which enables the Commonwealth Parliament to require State courts to exercise any form of non-judicial power."

139. Later, in R v. Murphy , six members of the Court observed ^[F174] :

"According to the authorities, the power conferred by s 77(iii) is limited by the principle, which has been distilled from Ch III and the dispositions it makes with respect to the judicial power, that only judicial functions and functions incidental thereto may be invested in a State court."

140. Section 15G(2)(a) of the Crimes Act states that, subject to s 15X, Pt 1AB of the Crimes Act is not intended to limit a discretion that a court has to exclude evidence in criminal proceedings. The effect of the submissions for the accused is that, in its application to the prosecution of the accused in the County Court, s 15X imposes a constitutionally invalid stricture upon what otherwise, pursuant to s 80 of the Judiciary Act, would be that Court's common law power to exclude evidence. The accused contends that, were the trial of the accused to be conducted in conformity with s 15X, the result would be that the State court would go beyond the exercise of those judicial functions and functions incidental thereto which mark the limits of the judicial power of the Commonwealth. That power is vested by s 71 of the Constitution in this Court, such other federal courts as are created by the Parliament, and in such other courts as the Parliament invests with federal jurisdiction.

141. The constitutional question does not arise by reason of the nature of the subject-matter for the exercise of the judicial power or the consequences of that exercise of power. An example of such a situation which would not involve the exercise of the judicial power would be the declaration of what thereafter ought to be the respective rights and liabilities of parties to a civil dispute ^[F175] . The dispute does not turn upon the alteration or abrogation by statute of antecedent private substantive rights or status which are at stake in, or which provide the foundation for, particular pending civil litigation. Indeed, the validity of such a law has been upheld ^[F176] . Nor, in contrast to the position in R v. Humby; Ex parte Rooney ^[F177] , does the accused complain of the termination by legislation of a civil status following an ineffective attempt to do so in the purported exercise of judicial power. In Humby , such a law relating to marriage was upheld.

142. Rather, the accused founds his case upon the traditional right to judicial determination of criminal guilt. What this involves appears from remarks by Jacobs J in R v. Quinn; Ex parte Consolidated Food Corporation ^[F178] . His Honour said ^[F179] :

"The historical approach to the question whether a power is exclusively a judicial power is based upon the recognition that we have inherited and were intended by our Constitution to live under a system of law and government which has traditionally protected the rights of persons by ensuring that those rights are determined by a judiciary independent of the parliament and the executive. But the rights referred to in such an enunciation are the basic rights which traditionally, and therefore historically, are judged by that independent judiciary which is the bulwark of freedom. The governance of a trial for the determination of criminal guilt is the classic example."

In short, as Griffith CJ had earlier remarked, "convictions for offences and the imposition of penalties and punishments are matters appertaining exclusively to [the judicial] power" ^[F180] .

143. Implicit in the submissions for the accused is the notion that the basic right to which Jacobs J referred in Quinn would be satisfied by the determination of criminal guilt through the application of the common law rules of evidence. However, caution is required in accepting any proposition which so exalts the common law. Many aspects of criminal procedure which now loosely would be considered as based in "the common law" are the result of extensive changes made in England by statute in the course of the last century. For example, counsel was not allowed to prisoners on charges of felony until as late as The Trials for Felony Act 1836 (UK) ^[F181] . The accused only became a competent witness as a result of a series of statutes commencing in 1872 and culminating in the Criminal Evidence Act 1898 (UK) ^[F182] .

Usurpation of the Judicial Power

144. The present dispute does not turn upon the nature of the liabilities of the accused under s 233B of the Customs Act which are subjected to determination by the exercise of judicial power, nor upon the consequences of that determination. The accused is liable to the determination of criminal guilt and the consequent infliction of punishment. There is a correlative right of the accused to the determination of that guilt and the infliction of punishment by the exercise of judicial power. What is at the heart of the complaint by the accused is legislative prescription as to the manner of the exercise of the judicial power at his trial.

145. The essential question concerns the limitation imposed by s 15X upon the discretion which the trial court otherwise would enjoy to exclude evidence that the heroin in question was imported into Australia in contravention of the Customs Act. Is this such an interference with the governance of the trial and a distortion of its predominant characteristics as to involve the trial court in the determination of the criminal guilt of the accused otherwise than by the exercise of the judicial power of the Commonwealth?

146. The legislative powers of the Commonwealth do not extend to the making of a law which authorises or requires a court exercising the judicial power to do so in a manner which is inconsistent with its nature ^[F183] . Thus, a legislative direction requiring a court not to release a person held in unlawful custody is a direction as to the manner (and outcome) of the exercise of its jurisdiction and is an impermissible intrusion into the exercise of the judicial power ^[F184] . Nor would a legislative direction be valid if it required a court in exercise of the judicial power of the Commonwealth to order imprisonment, not on the basis that the persons in question had breached any criminal law, but upon an opinion formed by reference to material, not necessarily admissible in legal proceedings, that, on the balance of probabilities, they might breach such a law ^[F185] .

147 The "pith and substance" ^[F186] of the legislation which gave rise to Liyanage v. The Queen ^[F187] was an attempt by the legislature of Ceylon "to circumscribe the judicial process on the trial of particular prisoners charged with particular offences on a particular occasion and to affect the way in which judicial discretion as to sentence was to be exercised so as to enhance the punishment of those prisoners" ^[F188] . That legislation was held to be invalid. There was "a marked interference with the judicial process and [the legislation] circumscribed the judicial function and the discretions incidental to it" ^[F189] . The changes made by the legislation included the denial to the particular accused persons of the benefit of laws that no confession made to a police officer was admissible against them and that a confession by one of several co-accused was inadmissible against the others ^[F190] .

148. Liyanage illustrates two propositions of relevance in the present case. The first is that the concern of the Court in construing Ch III of the Constitution is with substance, not merely form. The second is a corollary of the first and was expressed by Windeyer J in R v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd ^[F191] . His Honour said that the concept of judicial power (and, one should add, that of impermissible intrusions upon the manner and outcome of its exercise) transcends "purely abstract conceptual analysis" and "inevitably attracts consideration of predominant characteristics", together with "comparison with the historic functions and processes of courts of law". Later, in R v. Humby; Ex parte Rooney ^[F192] , Mason J said of the notion of "[u]surpation of the judicial power" by infringement of Ch III that it was a concept "which is not susceptible of precise and comprehensive definition".

"Retrospective" Legislation

149. The accused sought to impugn s 15X on the basis that it was applicable to past events in respect of a number of identifiable cases. However, Polyukhovich v. The Commonwealth ( War Crimes Act Case ) ^[F193] decides that even a law, on its face imposing criminal liability in respect of past conduct which, at the time of its commission, did not contravene a law of the Commonwealth, does not, for that reason alone, usurp the exercise of the judicial power of the Commonwealth. The law will be valid if it leaves for determination by a court the issues which would arise at a trial under the law in question ^[F194] .

150. Section 15X is not a law which imposes criminal liability. Section 233B does so and has been in the same form at all material times. Section 15X is not a "retrospective" law. While the accused is alleged to have possessed or attempted to possess heroin on 24 September 1994, the 1996 Act commenced on 8 July 1996 and the accused was to be tried thereafter. In Rodway v. The Queen ^[F195] , Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ said:

"Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance."

As Isaacs J put it, a law which, on its true construction, is merely evidentiary and operates only to regulate future curial procedure is not retrospective ^[F196] .

151. Section 15X limits what otherwise would be the discretion of the court to exclude evidence as to the importation of the heroin in question by certain law enforcement officers. It does not alter with retrospective effect the substantive law by, for example, changing the elements of the offences under s 233B of the Customs Act with effect at the date of the commission of the alleged offences by the accused on 24 September 1994.

Procedural Laws

152. In addition, there is a lengthy history of laws of the Commonwealth, particularly with respect to restrictive trade practices, immigration and customs (including s 233B(1)(c) itself), which create civil liabilities or criminal offences and reverse the traditional onus of proof ^[F197] .

153. Section 15A of the Australian Industries Preservation Act 1906 (Cth) provided that in certain prosecutions for offences under that statute the averments of the prosecutor were to be deemed to be proved in the absence of proof to the contrary, but so that an averment of intent was not to be deemed sufficient to prove intent, and in respect of an indictable offence the guilt of the defendant was to be established by evidence. The validity of the section was considered by Isaacs J in The King and the Attorney-General of the Commonwealth v. Associated Northern Collieries ^[F198] but not upon appeal ^[F199] . Isaacs J said of s 15A ^[F200] :

"It is a stringent provision casting the initial burden of proof upon the defendants in certain cases, but as I read the section that is all. It still leaves it to the judicial tribunal to determine on recognised principles the issue of guilt or innocence upon any evidence that may be adduced. Indeed I am acting in the present instance upon the basis of that interpretation, by disregarding the provisions of the section altogether.

Similar enactments have been held valid in America as for instance by Marshall CJ, in the case of 'The Thomas and Henry' v. US ^[F201] , and by Gray CJ, in Holmes v. Hunt ^[F202] , where a number of authorities are collected. See also Li Sing v. United States ^[F203] , citing with approval Holmes v. Hunt ^[F204] and applying the rule of competency to a very strongly worded section; and again Ah How v. US ^[F205] , see also Craies on Statutory Law ^[F206] and Cooley's Constitutional Limitations ^[F207] ."

154. In The Commonwealth v. Melbourne Harbour Trust Commissioners ^[F208] , the Court upheld the validity of s 48 of the Customs Act. Knox CJ, Gavan Duffy and Starke JJ said ^[F209] :

"An argument was also made that sec 48 of the Act is not a law relating to Customs, and is also a usurpation of the judicial power of the Commonwealth. Neither of these contentions can be sustained. The section makes provision for the enforcement of a Customs security, and in effect casts upon the party who purports to have given the security the burden of proving either that he has not executed it or that he has complied with its conditions or that the security has been released or satisfied. A law does not usurp judicial power because it regulates the method or burden of proving facts. And the mere statement of the purpose and operation of sec 48 establishes it as a law relating to Customs."

Isaacs J ^[F210] said there was no substance in the objection that s 48 was invalid because it was an attempt by the legislature to exercise judicial power; the provision was "a mere evidentiary section and of a class well known in Customs Acts".

155. In Williamson v. Ah On ^[F211] , Higgins J described as "destitute of foundation" the argument that it was "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". Higgins J went on ^[F212] to say that he doubted the validity, in a case where there was no actual evidence on the subject of a person's immigration, of an enactment that the mere averment of the prosecutor was to be proof that the person "is an immigrant". But this was on the footing that the fact to be proved was a constitutional fact "touching the power of Parliament itself to legislate" ^[F213] .

156. No such question arises with respect to s 15X of the Crimes Act. Nor does s 15X deem to exist, or to have been proved to the satisfaction of the tribunal of fact, any ultimate fact, being an element of the offences with which the accused is charged. A law of that nature, albeit procedural in form, might well usurp the constitutionally mandated exercise of the judicial power for the determination of criminal guilt ^[F214] . Section 15X is quite different in form and operation.

The United States Authorities

157. As I have indicated above, "by simply labeling a law 'procedural', [the] legislature does not thereby immunize it from scrutiny" ^[F215] under Ch III. However, the limitations that are involved in such an analysis may be seen by reference to the course of decisions in the United States. The earlier decisions were referred to by Isaacs J in the passage, set out earlier in these reasons, in The King and the Attorney-General of the Commonwealth v. Associated Northern Collieries ^[F216] . More recently, issues of the nature of those in the present case largely have been determined not by reference to Art III but to express guarantees. The United States Constitution contains two provisions (Art I, 9, cl 3 and Art I, 10, cl 1), the first directed to Congress and the other to the States, each of which, as interpreted by the Supreme Court, "flatly prohibits retroactive application of penal legislation" ^[F217] .

158. A law which is "procedural" may, as a matter of substance, offend these Ex Post Facto clauses. This will be so if the law, whatever its form, "make[s] innocent acts criminal, alter[s] the nature of the offense, or increase[s] the punishment" ^[F218] . Nevertheless, a change to the procedural law which alters the situation to the disadvantage of the accused will not, on that account alone, offend the Ex Post Facto clauses ^[F219] . The result is that only in limited circumstances will procedural changes offend the express guarantees in the United States Constitution.

The Balance Between Competing Interests

159. One element in the offences under s 233B(1)(c) alleged against the accused is that the heroin was imported into Australia in contravention of the Customs Act. The prosecution in this respect would prove importation by law enforcement officers who committed offences in doing so. Ridgeway held that there was a discretion in the court to exclude such evidence. In reaching that conclusion, the Court weighed the competing legitimate public interests involved ^[F220] . These were the interest in securing a conviction of wrongdoers and the interest in the courts not being seen to lend approval to unlawful conduct by law enforcement authorities.

160. The legislature has now, in the newly inserted Pt 1AB of the Crimes Act, struck a different balance between these competing interests. Division 2 of Pt 1AB (ss 15H-15U) sets up for the future a new regime under which, in certain circumstances, law enforcement officers are rendered "not liable" ^[F221] for offences committed for the purposes of a "controlled operation". This Court is here concerned with Div 3 (ss 15V-15X), which deals with controlled operations started before 8 July 1996.

161. With respect to the accused, s 15X will require the County Court to disregard facts which otherwise, at common law, would enliven a discretion to exclude evidence tendered to prove that importation of the heroin in question was by law enforcement officers who committed an offence in doing so. In other respects, s 15G(2) preserves the discretion of the court to exclude evidence.

162. The section in its operation, if not necessarily on its face, deals not with proof but with a discretion to exclude evidence of facts. It operates to facilitate the proof by the prosecution of its case by the admission of evidence that otherwise was liable to exclusion. The case for the accused is made that much more difficult than it would have been if s 15X had not been enacted. However, the section does not deem any ultimate fact to exist, or to have been proved. It leaves untouched the elements of the crimes for which the accused is to be tried. Nor does s 15X change the amount or degree of proof essential to convict him from that required when the alleged offences were committed.

A Law of Limited Application?

163. It is not significant that s 15X will have an operation in respect of a numerically limited class of persons presented for trial. Both s 15and s 15X operate in respect of prosecutions for offences against s 233B of the Customs Act and associated offences. Before the commencement of the 1996 Act on 8 July 1996 an ascertainable number of "controlled operations" had been started. However, given the scope of s 233B and the associated offence provisions, the identity of all those who were liable to prosecution under those provisions, and at whose trial the Ridgeway discretion otherwise would apply, might not be established for some time after 8 July 1996.

164. Section 15X is part of a legislative scheme designed to strike a balance between competing interests and to give effect with respect to these prosecutions to a perception of the public interest which differs from that expressed in the common law in Australia. That is a matter for the Parliament. The legislation is not designed to achieve any particular outcome upon the determination by judicial process of the criminal guilt of any particular individuals by reason of their identity or their conduct on particular occasions.

75 Further, this is not a case where the Executive purports to dispense with laws made by the legislature. The Parliament has left untouched s 233B and the laws creating "associated offences". What it has done is to change the application of s 80 of the Judiciary Act by, in a limited respect, providing a legislative, not a common law, prescription as to the exercise of the court's power to reject certain evidence.

165. In various areas of criminal law procedure, the legislature has required the courts to exercise a power in a particular way, upon satisfaction of conditions stipulated by the legislature. Mitchell v. The Queen ^[F222] provides a recent example with respect to sentencing.

166. The new legislation empowers the Crown to rely upon an act of importation which was illegal and remains so, and requires the court to disregard the illegality. To some, that may offend views as to what should be public policy in such matters. But views of public policy may differ, as the judgments in the divided Court in Ridgeway demonstrate. For the legislature to prefer one such view to another is not, of itself, to undermine, in a constitutionally impermissible manner, the integrity of the judicial process in the exercise of the judicial power of the Commonwealth.

Conclusions

167. Section 15X does not operate so to prescribe the manner of exercise of the judicial power upon trials of offences against s 233B of the Customs Act or associated offences as to deny the basic rights referred to by Jacobs J in Quinn ^[F223] . The courts are left with the determination of the facts in the light of the law which created the offence, as a matter of form and substance.

168. I agree with the reasons for judgment of Hayne J with respect to the construction of Div 3 of Pt 1AB.

169. I agree also with the orders proposed by his Honour.