Nicholas v R
193 CLR 173(Judgment by: Hayne J)
NICHOLAS v REGINA
Court:
Judges:
Brennan CJ
Toohey
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
Judgment by:
Hayne J
219. David Michael Nicholas was presented in the County Court of Victoria on an indictment alleging four counts - two alleging offences against s 233B(1)(c) of the Customs Act 1901 (Cth) and two alleging offences against s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). Each count concerned Nicholas' alleged possession or attempted possession of heroin on 24 September 1994. The heroin the subject of these charges was imported into Australia by Australian and Thai law enforcement officers in contravention of s 233B of the Customs Act but, so the Crown alleges, as part of a "controlled operation" undertaken under the terms of the Ministerial Agreement of June 1987 which is mentioned in Ridgeway v The Queen [F363] .
220. After Nicholas had been committed for trial, but before he was arraigned, this Court decided Ridgeway . After Nicholas had been arraigned and had pleaded not guilty to all four counts, he applied to the trial judge to exclude evidence of the importation of the heroin the subject of the charges and to stay the prosecution of the two counts alleging offences against the Customs Act . On 27 May 1996, the trial judge ordered that further proceedings on the two Customs Act offences should be stayed permanently [F364] .
221. On 8 July 1996, the Crimes Amendment (Controlled Operations) Act 1996 (Cth) came into operation. That Act introduced Pt 1AB into the Crimes Act 1914 (Cth), the object of that Part being (among other things) "to exempt from criminal liability law enforcement officers who, in the course of controlled operations" authorised under that Part of the Act "take an active part, or are otherwise involved, in the importation or exportation of narcotic goods" [F365] and "to provide that evidence of importation of narcotic goods obtained through a controlled operation" that had been started before the commencement of the Act and 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 those goods [F366] . Division 2 of Pt 1AB (ss 15H to 15U) makes provision for controlled operations that may take place after the coming into effect of the Act. Thus, provision is made for the making of an application for a certificate authorising a controlled operation [F367] , for the grounds on which a certificate authorising a controlled operation may be given [F368] , for notification to the Minister of applications for certificates [F369] and for the tabling by the Minister before each House of the Parliament of reports about controlled operations [F370] . Section 15I provides:
"(1) Subject to subsection (2), a law enforcement officer (other than a member of the police force of a State) 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, at the time when he or she engages in that conduct, there is in force a certificate given under section 15M that authorises the controlled operation.
(2) Subsection (1) does not apply if:
- (a)
- the conduct of the 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.
(3) Subject to subsection (5), a member of the police force of a State 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, at the time when he or she engages in that conduct, there is in force a certificate given under section 15M that authorises the controlled operation.
...
(6) 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.
...".
222. Division 3 of Pt 1AB deals with controlled operations that were started before the commencement of the Part. The central provision of the Division is s 15X which reads:
"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."
223. After the 1996 amending Act came into operation, the prosecution applied to the trial judge who had ordered a permanent stay of further proceedings in relation to the two Customs Act offences alleged against Nicholas for an order lifting that stay. Counsel for Nicholas contended that Div 3 of Pt 1AB of the Crimes Act is invalid on the ground that it "infringes or usurps" the exercise of the judicial power of the Commonwealth. The whole of the cause (and thus, so far as presently relevant, the application for an order lifting the stay) was then removed into this Court.
224. The trial judge had ordered that proceedings on the two Customs Act offences should be stayed permanently. It was, however, accepted before us that it would be open to the judge, in a proper case, to lift that stay. No doubt that concession proceeded from an acceptance of two propositions - that an order staying further proceedings did not constitute any final determination of issues joined and that there was not, in the circumstances of this case, any abuse of process in applying for a lifting of the stay or if the stay were to be lifted [F371] .
225. As is apparent from the chronology I have given, Pt 1AB was introduced into the Crimes Act in response to the Court's decision in Ridgeway . The legislative debates make plain that that is so [F372] .
226. The discretion of the trial judge to exclude prosecution evidence which has been obtained by unlawful conduct on the part of the police is well established [F373] . It is equally well established that that discretion is distinct from the discretion of a trial judge to exclude admissible evidence when to admit it would be unfair to the accused. The discretion to exclude illegally procured evidence is not primarily concerned with questions of fairness to the accused but rather with "society's right to insist that those who enforce the law themselves respect it, so that a citizen's precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may remain unimpaired" [F374] .
227. The rule is not a rule of absolute exclusion; a discretion must be exercised. And the exercise of that discretion must be informed by consideration of two competing requirements: that those guilty of crime be detected and punished and that those whose task it is to enforce the law obey it. Reference is made in Bunning v. Cross , and elsewhere, to various considerations that might bear upon the resolution of that tension and thus upon the exercise of the discretion in individual cases. In particular, reference is made in Bunning v. Cross to the importance of identifying whether there was some "isolated and merely accidental non-compliance with statutory safeguards" [F375] as opposed to deliberate breach of the law on the part of those who are duty bound to uphold it. Since Bunning v. Cross there have been many cases in which that balancing exercise has been undertaken [F376] .
228. Ridgeway was not a case concerning illegally procured evidence. Rather, one of the elements of the offence with which Ridgeway was charged was constituted by the illegal conduct of law enforcement officers: it was law enforcement officers who had imported the prohibited narcotic goods. Again, however, it is important to note that the Court did not hold in Ridgeway that evidence of the unlawful conduct of the law enforcement officers said to constitute one element of the charged offence could never be received; it was held that the trial judge had a discretion to exclude that evidence. As Mason CJ, Deane and Dawson JJ said [F377] :
"... the considerations of 'high public policy' which justify the existence of the discretion to exclude particular evidence in the case where it has been unlawfully obtained are likewise applicable to support the recognition of a more general discretion to exclude any evidence of guilt in the case where the actual commission of the offence was procured by unlawful conduct on the part of law enforcement officers for the purpose of obtaining a conviction. In both categories of case, circumstances can arise in which the need to discourage unlawful conduct on the part of law enforcement officers and to preserve the integrity of the administration of criminal justice outweighs the public interest in the conviction of those guilty of crime."
As this passage makes plain, the exercise of the discretion calls, once more, for resolution of the tension between the competing principles that have earlier been mentioned. It may be, then, as their Honours suggest [F378] , that the discretion to reject illegally procured evidence and the discretion to exclude evidence of an illegally procured offence are not distinct and independent but are complementary aspects of a single discretion encompassing both. I need not decide whether that is so.
229. Whether or not the discretion to exclude evidence of an illegally procured offence is separate from the discretion discussed in Bunning v. Cross , it is a discretion the exercise of which is to be informed by similar considerations, although, as Ridgeway also makes plain, the relative weight to be given to those considerations will vary according to the circumstances of each particular case.
"Thus, the weight to be given to the public interest in the conviction and punishment of those guilty of crime will vary according to the degree of criminality involved. The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence - the public interest in maintaining the integrity of the courts and in ensuring the observance of the law and minimum standards of propriety by those entrusted with powers of law enforcement - will vary according to other factors of which the most important will ordinarily be the nature, the seriousness and the effect of the illegal or improper conduct engaged in by the law enforcement officers and whether such conduct is encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings. When assessing the effect of the illegal or improper conduct, the relevance and importance of any unfairness either to a particular accused or to suspected or accused persons generally will likewise depend upon the particular circumstances [F379] . Ordinarily, however, any unfairness to the particular accused will be of no more than peripheral importance." [F380]
230. It is against that background that the challenge to the validity of Div 3 of Pt 1AB must be judged.
Nicholas' contentions had three strands -
First, that the nature and basis of the discretion to reject evidence of an offence or element of an offence procured by unlawful conduct on the part of law enforcement officers are of such a kind that it is only the courts that can determine in what circumstances the discretion is to be applied;
Secondly, that Div 3 of Pt 1AB deals only with a small and identifiable group of persons and is, on that account, an impermissible interference with the exercise of judicial power; and
Thirdly, that on its true construction, Div 3 of Pt 1AB does not apply to a case, such as the present matter, in which a stay has previously been ordered.
These strands were not always treated as separate threads in the argument but it is convenient to deal with them as if they were.
231. It was submitted that the discretion to reject evidence of illegally procured offences is a common law (as opposed to statutory) discretion which is exercised by the courts to protect the integrity of their processes. No doubt this is so. Equally there is no doubt that a court which exercises the discretion is exercising judicial power. Thus, when the trial judge ruled that the evidence which the prosecution proposed to lead of the importation of the heroin which it was alleged that Nicholas had, or had attempted to have, in his possession should be excluded, the trial judge was exercising the judicial power of the Commonwealth. But it by no means follows from these considerations that Parliament may make no law touching the discretion.
232. At the outset it is necessary to recall that the discretion is one which is rooted in public policy and requires the balancing of competing considerations. Part 1AB seeks to have the courts strike that balance differently in some kinds of cases, presumably because the Parliament considers that the public interest requires it. The effect of Nicholas' contentions is that only the courts may determine what the public interest requires. I do not accept that that is so.
233. The facts that the discretion is a creature of the common law and is concerned with the protection of the integrity of the courts' processes do not mean that the discretion cannot be affected by legislation. There are many rules which have been developed by the common law which have been changed or even abolished by legislation and yet it is not suggested that such legislation intrudes upon the separation of judicial and legislative powers. Nor do the facts that the discretion is designed to protect the integrity of the courts and that the discretion is "an incident of the judicial powers vested in the courts" [F381] take the discretion altogether beyond the reach of the legislature. Whether other considerations would arise if Parliament attempted to abolish the discretion altogether is a question I need not, and do not, address. The legislation now in question does not abolish the discretion - it affects only some kinds of prosecutions and then only in the limited circumstances that are prescribed in the legislation.
234. Moreover, Pt 1AB is concerned with a rule about the reception or rejection of certain evidence. That Parliament may make laws prescribing rules of evidence is clear and was not disputed. Plainly, Parliament may make laws (as it has) on subjects as diverse as the circumstances in which hearsay may be received [F382] or the circumstances in which confessional statements by accused persons may be admitted in evidence [F383] and it may do so to the exclusion of the previous common law rules [F384] .
235. The common law rules that were developed in these areas were often, if not always, developed with questions such as reliability of evidence or fairness to the accused at the forefront of consideration and thus, at least to that extent, with questions of the integrity of the curial process and its results well in mind. And yet such legislation does not infringe the separation of powers.
236. It may be accepted that the judicial power of the Commonwealth is an "elusive concept" [F385] difficult, if not impossible, of comprehensive definition. At its core it concerns what Griffith CJ described in Huddart, Parker & Co Pty Ltd v. Moorehead [F386] as "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". As Kitto J pointed out in R v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [F387] the judicial power involves "as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation" and that decision will be based upon identifiable legal principles [F388] . But that is far from saying that the legal principles to be applied are to be formulated only by those in whom judicial power is properly invested. Indeed to state the proposition is to reveal its error.
237. Once it is accepted that the legislature may make or change the rules of evidence it is clear that it may make or change the rules governing the discretionary exclusion of evidence. In particular, it may make or change rules governing the factors which a court is to take into account in exercising that discretion. In the case of this particular discretion, the exercise of which depends upon the balancing of competing considerations, I see no intrusion on the judicial power by the legislature saying that in some kinds of case, one consideration (that of preserving the reputation of the courts by their not being seen to condone law breaking) is to be put to one side in favour of the consideration that persons committing a particular kind of crime should be convicted and punished.
238. It is said that if the courts do that, their reputation is harmed because they are seen to condone the breaking of the law by law enforcement officers. But that is to ignore a fundamentally important consideration - that the courts would receive evidence which otherwise may have been rejected because that is the effect of the statutory injunction to disregard the fact that the law was broken by the law enforcement officers. There would, in these circumstances, be no harm to the reputation or integrity of the judicial process if the courts were to follow the law and there would be no harm to the reputation of the courts if, applying the law, a court received the evidence in the course of trying the issues joined between prosecution and accused. Moreover, it is always necessary to recall that not every breach of the law by those who should enforce it led to rejection of their evidence at common law; a discretion was exercised. Harm to the courts has not been seen, in Australia or elsewhere, as the inevitable consequence of the reception of such evidence.
239. As was noted in Bunning v. Cross [F389] there was a marked contrast between the approach manifest in R v. Ireland [F390] (and in Bunning v. Cross ) and the approach that had, until then, been taken in the English and Canadian courts. Since then, the general effect of English cases has been to favour the reception of evidence even though it has been illegally obtained [F391] . (The question in England has also now been affected by legislation [F392] .) In Canada the matter is controlled by s 24(2) of the Charter of Rights and Freedoms which provides, in effect, that if evidence is obtained in breach of the Charter, the evidence is excluded if it is established that, having regard to all of the circumstances "the admission of it in the proceedings would bring the administration of justice into disrepute" [F393] . In the United States, the view that appears to have prevailed is not that a defence of entrapment is necessary to "preserve the institutional integrity of the system of federal criminal justice" [F394] but that the relevant question is whether the accused would have committed the offence but for the actions of the law enforcement officers [F395] . In none of these jurisdictions, then, has the reception of evidence obtained illegally been seen as presenting such a threat to the integrity of the judicial process, or the reputation of the courts, as to require its rejection in all cases. Nor is there any reason to consider that the factors affecting the decision whether to admit evidence that one element of an offence charged against an accused which has been constituted by the illegal conduct of law enforcement officers are so different from those that bear on whether to receive evidence obtained illegally that a different conclusion should be reached.
240. No doubt the conduct of law enforcement officers who participated in controlled operations involving the importation of drugs into this country was a deliberate and serious breach of the law (a breach ordinarily attracting condign punishment) but the choice made by the legislature is that these facts are to be disregarded in deciding whether to receive evidence of their conduct. That choice is, as I have said, the choice of the legislature, not the courts and is not a choice which leads to damage to the reputation of the courts.
241. It may be accepted that the discretion to reject evidence of illegally procured offences is a discretion stemming from "the inherent powers of the courts to protect the integrity of their own processes" [F396] . But the fact that the discretion is based in the inherent powers of the courts does not take the discretion beyond the reach of legislative change. Nor does the fact that the discretion is intended to protect the reputation of the courts. The courts' opinion of what is necessary, or desirable, to preserve their reputation is not a sound test of constitutional validity. As Brennan CJ points out in his reasons: "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." [F397]
242. I need not, and do not, decide whether there are some inherent powers of the courts which cannot be abolished [F398] . The legislation now in question does not purport to abolish any power of the court. Section 15G(2), which applies to both Div 2 and Div 3 of the Part, and thus applies both to controlled operations taking place after the Act came into effect and those that had taken place earlier, expressly denies any such general intention. It provides:
"(2) Subject to section 15X, this Part is not intended to limit a discretion that a court has:
- (a)
- to exclude evidence in criminal proceedings; or
- (b)
- to stay criminal proceedings in the interests of justice."
As counsel for Nicholas emphasised, s 15X may, on its true construction, require a court to disregard the very fact that enlivens the discretion spoken of in Ridgeway - that a law enforcement officer committed an offence in importing the narcotic goods. It may be, then, that s 15X is properly described as removing the discretion to exclude evidence of illegally procured offences in the cases to which it applies. At the least it very much limits the discretion in such cases. But on its widest construction, s 15X says no more than that in the limited circumstances in which that section has operation the discretion to reject evidence is not to be exercised.
243. If the rejection of evidence of illegally procured offences had been held to be inevitably required in all cases because only in that way could the reputation of the courts be protected, the question whether Parliament might change or abolish that rule might (I do not say would) have arisen. But that is not the case with this rule. The courts have recognised that a difficult balancing exercise must be undertaken and that no single answer applies to all cases in which the question might arise. In my view the fact that the discretion is based in the inherent powers of the courts does not mean that Pt 1AB, or Div 3 in particular, intrudes on the judicial power of the Commonwealth.
244. I turn then to the other two strands in the argument.
245. Section 15X applies to only a small group of cases: those arising out of controlled operations started before the commencement of Pt 1AB [F399] and in which a request was made and granted under the Ministerial Agreement for exemption of the goods from detailed scrutiny by customs officers [F400] . No doubt the number of those controlled operations is known; it seems that there may have been very few such cases [F401] .
246. For present purposes, then, I am prepared to assume that not only are the controlled operations to which s 15X may apply known but also that all offenders who were concerned in crimes committed after those importations have been identified by police. If the cases described in the second reading speeches were the only cases to which s 15X might apply, it would seem that there are no more than about five or six persons concerned.
247. It was said that Div 3 of Pt 1AB can therefore be seen as legislation directed to the disposition of particular identifiable prosecutions and is, for that reason, an infringement upon judicial power.
248. First, however, it is to be noted that the legislation deals only with the reception of evidence; it does not deal directly with issues of guilt or innocence of any offence charged against those in whose prosecutions the evidence may be led. Secondly, the mere fact that it may be possible to identify all the persons in relation to whom s 15X applies does not mean that the legislation interferes with judicial power. Where legislation deals only with events which have happened before the legislation comes into effect, it must always be possible, at least theoretically, to identify all cases to which the legislation may apply; the events have happened and can, in theory, be identified. That has not hitherto been seen as sufficient reason to conclude that the legislation is invalid [F402] . The number of cases affected may be a relevant consideration but I doubt that it is a sure guide to validity and I do not rest my decision only on whether the provisions which are now under consideration affect 5 or 6 persons rather than 1 or 2 (or 5 or 6 rather than 500 or 600). For present purposes it is enough to say that because the legislation does not deal directly with ultimate issues of guilt or innocence but only with whether evidence of only one of several elements of an offence can be received and deals not with a single identified, or identifiable, prosecution but with several prosecutions (albeit prosecutions which I assume can be identified and are relatively few) it does not have the character of a bill of attainder or like impermissible interference in the judicial process. Rather, it is legislation of a kind much more closely resembling the legislation concerning corroboration warnings considered in Rodway v. The Queen [F403] - legislation which was held to affect only the procedures to be followed in litigation, not the rights of the parties.
249. The distinction between legislation dealing only with questions of evidence or procedure and legislation dealing with questions of guilt or innocence is, of course, concerned with substance, not form [F404] , and will not always be easy to draw, but it is a distinction of great importance. As Brennan, Deane and Dawson JJ said in Chu Kheng Lim v. Minister for Immigration [F405] :
"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 [F406] and 'could not be excluded from' [F407] the judicial power of the Commonwealth [F408] . 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."
250. Nothing in Pt 1AB purports to take any question of adjudging or punishing criminal guilt under a law of the Commonwealth away from the courts which exercise the judicial power of the Commonwealth. Even if s 15X is construed as entirely removing (in cases to which it applies) the discretion to exclude evidence of the illegal conduct of law enforcement officers who were concerned in the importation of narcotic goods, the issue of guilt or innocence of the crime charged in cases to which that section applies is left to the courts to decide.
251. I have said that the distinction between legislation dealing only with questions of evidence or procedure and legislation dealing with questions of guilt or innocence will not always be easy to draw. It is possible to imagine changes to evidence or procedure which would be so radical and so pointed in their application to identified or identifiable cases then pending in the courts that they could be seen, in substance, to deal with ultimate issues of guilt or innocence. The legislation dealt with by the Privy Council in Liyanage v. The Queen [F409] might be seen to have been of that kind.
252. It was submitted that s 15X can be seen to be of the same kind as the legislation considered in Liyanage because of its application to a limited group of identifiable cases, because it deals with proof of an essential element of an offence charged and because its application in this case deprives Nicholas of the benefit of an order staying proceedings on the Customs Act offences permanently. I have dealt with the first of these three considerations. It is convenient to deal with the other two together.
253. Before Pt 1AB came into operation, the trial judge concluded, following Ridgeway , that because evidence of the illegal importation of the narcotic goods should not be received, the charges under the Customs Act that were alleged against Nicholas would fail and that therefore the further prosecution of those charges would be an abuse of process and should be permanently stayed.
254. There is, in my view, nothing in s 15X or Pt 1AB more generally, which suggests that s 15X applies only to cases in which no application for stay has been granted before the Part came into force. Nicholas' contention that the section was limited in this way should be rejected. Further, once it is accepted, as it was in this case, that the trial judge has power, in a proper case, to lift a permanent stay that has been granted, there is no reason to conclude that the change in the law worked by Pt 1AB is not a sufficient reason to consider lifting the stay. (Indeed the contrary was not contended.) Inevitably then, the application of Div 3 of Pt 1AB (and s 15X in particular) in the circumstances of this case may mean that evidence of an essential element of the alleged offences which was previously excluded may now be admitted. But that should not be permitted to obscure two very important facts: first, that the proof of the matter alleged against the accused must still be undertaken by the prosecution and judged by the court in the ordinary way and second, that the discretion to reject evidence of illegally procured conduct is a discretion that is not focused upon the need to ensure a fair trial for the accused. It is a discretion that is based on other, different, considerations.
255. The legislation does not intrude on the judicial power of the Commonwealth. Accordingly, I would declare s 15X of the Crimes Act to be a valid law of the Commonwealth and remit the cause to the County Court to be dealt with according to law.
(1995) 184 CLR 19 .
s 15J defines authorising officer in these terms:
"The Australian law enforcement officer who is in charge of a controlled operation may apply to:
- (a)
- the Commissioner, a Deputy Commissioner or an Assistant Commissioner; or
- (b)
- a member of the National Crime Authority; for a certificate authorising the controlled operation."
An "associated offence" in relation to s 233B of the Customs Act is defined to mean:
- "(i)
- an offence under section 236 or 237 of that Act that relates to the offence; or
- (ii)
- an offence under section 7A or subsection 86(1) of this Act that relates to the offence".
(1995) 184 CLR 19 .
(1995) 184 CLR 19 at 25.
(1995) 184 CLR 19 at 42.
(1995) 184 CLR 19 at 64 and 53 respectively.
(1995) 184 CLR 19 at 77-78.
(1995) 184 CLR 19 at 43.
See Ridgeway v. The Queen (1995) 184 CLR 19 at 53.
s 15W.
(1992) 176 CLR 1 at 27.
Australian Communist Party v. The Commonwealth (1951) 83 CLR 1 at 193; Cheatle v. The Queen (1993) 177 CLR 541 at 552.
(1992) 176 CLR 1 at 36-37.
(1992) 176 CLR 1 at 27.
Waterside Workers' Federation of Australia v. J W Alexander Ltd (1918) 25 CLR 434 at 444.
R v. Davison (1954) 90 CLR 353 at 368, 383.
See, also, Polyukhovich v. The Commonwealth (1991) 172 CLR 501 at 536-539, 608-610, 613-614, 632, 647, 649, 685, 705- 707, 721.
Chu Kheng Lim v. Minister for Immigration (1992) 176 CLR 1 at 27.
Judiciary Act 1903 (Cth) s 68.
(1909) 8 CLR 330 at 357.
(1983) 152 CLR 570 at 608; see also Wilson v. Minister for Aboriginal and Torres Strait Islander Affairs (1996) 70 ALJR 743 at 747; 138 ALR 220 at 226.
Attorney-General v. Vernazza [1960] AC 965 at 977; Nelungaloo Pty Ltd v. The Commonwealth (1948) 75 CLR 495 at 503-504, 579-580; R v. Humby; Ex parte Rooney (1973) 129 CLR 231 at 250.
Section 80 of the Constitution.
R v. Watson; Ex parte Armstrong (1976) 136 CLR 248 .
Chu Kheng Lim v. Minister for Immigration (1992) 176 CLR 1 at 36-37; and see Liyanage v. The Queen [1967] 1 AC 259 at 290.
See Grassby v. The Queen (1989) 168 CLR 1 at 16.
The Growth of English Law, (1911) at 151.
6 & 7 Vict c 85.
Stone and Wells, Evidence: Its History and Policies, (1991) at 46- 47.
(1922) 31 CLR 1 at 12.
(1926) 39 CLR 95 at 122.
(1926) 39 CLR 95 at 108.
(1926) 39 CLR 95 at 127.
(1975) 132 CLR 307 at 316-317, 318-319.
(1983) 152 CLR 281 at 298.
(1990) 169 CLR 515 at 521.
Tillers' review, (1983) par 7 at 474.
[1967] 1 AC 259 .
[1967] 1 AC 259 at 290.
(1992) 174 CLR 455 at 469-470.
(1995) 184 CLR 19 .
(1970) 126 CLR 321 .
(1970) 126 CLR 321 at 334.
(1970) 126 CLR 321 at 335.
(1978) 141 CLR 54 at 74-75.
(1978) 141 CLR 54 at 77-78.
(1982) 151 CLR 1 .
(1982) 151 CLR 1 at 20.
(1992) 176 CLR 177 at 202-203.
Bunning v. Cross (1978) 141 CLR 54 at 74.
(1995) 184 CLR 19 at 31.
Bunning v. Cross (1978) 141 CLR 54 at 74 per Stephen and Aickin JJ.
Pollard v. The Queen (1992) 176 CLR 177 at 203 per Deane J.
Bunning v. Cross (1978) 141 CLR 54 at 78 per Stephen and Aickin JJ.
(1990) 169 CLR 515 at 518.
(1995) 184 CLR 19 .
The law enforcement officer must be acting in the course of duty and a request for exemption from scrutiny of the narcotic goods by Customs must have been granted. See pars (a) and (b) of s 15X.
A controlled operation is defined by s 15H as an operation that involves the participation of law enforcement officers; 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 an officer engaging in conduct that would, apart from s 15I(1) or (3), constitute a narcotic goods offence.
The Amending Act commenced on 8 July 1996. Judgment in Ridgeway was delivered on 19 April 1995.
Commodity Futures Trading Commission v. Schor 478 US 833 at 848 (1986), quoted in Harris v. Caladine (1991) 172 CLR 84 at 135. See also Wilson v. Minister for Aboriginal & Torres Strait Islander Affairs (1996) 70 ALJR 743 at 747; 138 ALR 220 at 226.
131 L Ed 2d 328 (1995).
Chu Kheng Lim v. Minister for Immigration (1992) 176 CLR 1 at 27, 36-37, 49-50.
Unreported judgment of Supreme Court of Canada, 18 September 1997.
Courts are called upon to exercise a discretion in a variety of situations. See generally Hawkins, The Uses of Discretion, (1992). But in the evidentiary context the emphasis is upon the power to exclude evidence consequent upon the exercise of a discretion.
See generally R v. Swaffield; Pavic v. The Queen [1998] HCA 1 .
Bunning v. Cross (1978) 141 CLR 54 at 69; Ridgeway (1995) 184 CLR 19 at 30-31.
But see now Evidence Act 1995 (Cth), s 138(1); Evidence Act 1995 (NSW), s 138(1).
Ridgeway (1995) 184 CLR 19 at 33.
They are discussed in R v. Swaffield; Pavic v. The Queen [1998] HCA 1 .
(1991) 172 CLR 501 at 689.
(1990) 169 CLR 515 .
Milicevic v. Campbell (1975) 132 CLR 307 . See generally Cross on Evidence, 5th Aust ed (1996) at 204-205.
s 15V(1).
(1996) 70 ALJR 814 ; 138 ALR 577 .
Polyukhovich v. The Commonwealth (1991) 172 CLR 501 .
[1967] 1 AC 259 .
(1995) 184 CLR 19 at 33 per Mason CJ, Deane and Dawson JJ. See also at 52-53 per Brennan J and 64-65 per Toohey J.
Ridgeway v. The Queen (1995) 184 CLR 19 at 43 per Mason CJ, Deane and Dawson JJ, 52-53 per Brennan J, 64 per Toohey J.
Note that the stay did not extend to the prosecution of alternative offences under State law. Note also that Brennan and Toohey JJ would have entered a verdict of not guilty.
The Crimes Amendment (Controlled Operations) Act 1996 (Cth).
Section 233B prescribes a range of offences relating to the importation and possession of narcotic goods.
Section 15H of the Act.
Section 15M sets out the grounds upon which the authorising officer must be satisfied in order to issue a certificate authorising a controlled operation.
Sections 15I(2) and (5).
Prior to the enactment of the Crimes Amendment (Controlled Operations) Act 1996 (Cth), each controlled operation was conducted in accordance with a Ministerial Agreement made by the Minister for Industry, Technology and Commerce and the Special Minister of State on 3 June 1987. The Ministerial Agreement provided that a written request could be made to the Australian Customs Service:
"where certain persons, goods, ships or aircraft, suspected or known to be carrying or having an involvement in drugs, are required by the Australian Federal Police or the National Crime Authority to be exempted from detailed customs scrutiny and control and in cases where there is to be substitution of imported goods."
Where the request for exemption was granted, the controlled operation would be conducted in accordance with detailed Australian Federal Police Guidelines governing such operations. See Second Reading Speech to the Crimes Amendment (Controlled Operations) Bill 1995, House of Representatives, Parliamentary Debates (Hansard), 22 August 1995 at 6.
See In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 264-265 per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ; Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v. Dignan (1931) 46 CLR 73 at 97-98 per Dixon J; R v. Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 166; Attorney-General of the Commonwealth of Australia v. The Queen (1957) 95 CLR 529 at 538; [1957] AC 288 at 312-313; Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 580-581 per Deane J; Leeth v. The Commonwealth (1992) 174 CLR 455 at 469 per Mason CJ, Dawson and McHugh JJ, 487 per Deane and Toohey JJ.
As to the position of Territory Courts see Capital TV and Appliances Pty Ltd v. Falconer (1971) 125 CLR 591 at 602 per McTiernan J, 606 per Menzies J, 613 per Owen J, 623 per Walsh J, 627 per Gibbs J. But cf Gould v. Brown [1998] HCA 6 at 41-42 per Gaudron J.
See In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 264-265 per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ; Victorian Stevedoring and General Contracting Pty Ltd and Meakes v. Dignan (1931) 46 CLR 73 at 97-98 per Dixon J; R v. Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556 at 586-587 per Dixon and Evatt JJ; R v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 270 per Dixon CJ, McTiernan, Fullagar and Kitto JJ; Attorney-General of the Commonwealth of Australia v. The Queen (1957) 95 CLR 529 at 538; [1957] AC 288 at 312-313; Polyukhovich v. The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 606-607 per Deane J, 703 per Gaudron J; Leeth v. The Commonwealth (1992) 174 CLR 455 at 469 per Mason CJ, Dawson and McHugh JJ, 487 per Deane and Toohey JJ. See also Harris v. Caladine (1991) 172 CLR 84 . As to the position of State courts, see British Medical Association v. The Commonwealth (1949) 79 CLR 201 at 236 per Latham J; Queen Victoria Memorial Hospital v. Thornton (1953) 87 CLR 144 at 151-152; R v. Murphy (1985) 158 CLR 596 at 613-614; Kable v. DPP (NSW) (1996) 70 ALJR 814 at 830 per Dawson J, 846 per McHugh J, 858 per Gummow J; 138 ALR 577 at 599, 622, 638. As to the position of State courts invested with Territory jurisdiction, see Gould v. Brown [1998] HCA 6 at 41 per Gaudron J.
See, for example, R v. Davison (1954) 90 CLR 353 at 366 per Dixon CJ and McTiernan J; R v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 394 per Windeyer J; Precision Data Holdings Ltd v. Wills (1991) 173 CLR 167 at 188-189; Brandy v. Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 257 per Mason CJ, Brennan and Toohey JJ, 267 per Deane, Dawson, Gaudron and McHugh JJ.
See Gould v. Brown [1998] HCA 6 at 43-44 per Gaudron J and the references there cited.
Harris v. Caladine (1991) 172 CLR 84 at 150 per Gaudron J; Re Nolan; Ex parte Young (1991) 172 CLR 460 at 496 per Gaudron J; Polyukhovich v. The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 703- 704 per Gaudron J.
(1992) 176 CLR 1 at 27 per Brennan, Deane and Dawson JJ. See also Polyukhovich v. The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 607, 613 per Deane J and 704 per Gaudron J; Leeth v. The Commonwealth (1992) 174 CLR 455 at 469-470 per Mason CJ, Dawson and McHugh JJ.
Ridgeway v. The Queen (1995) 184 CLR 19 at 52.
Ridgeway v. The Queen (1995) 184 CLR 19 at 64, citing Foster v. The Queen (1993) 67 ALJR 550 at 557; 113 ALR 1 at 10.
Ridgeway v. The Queen (1995) 184 CLR 19 at 39.
Ridgeway v. The Queen (1995) 184 CLR 19 at 39.
Ridgeway v. The Queen (1995) 184 CLR 19 at 39.
Ridgeway v. The Queen (1995) 184 CLR 19 at 39.
Ridgeway v. The Queen (1995) 184 CLR 19 at 39.
Ridgeway v. The Queen (1995) 184 CLR 19 at 78.
[1967] 1 AC 259 .
[1967] 1 AC 259 at 289.
[1967] 1 AC 259 at 290.
[1967] 1 AC 259 at 289.
(1995) 184 CLR 19 .
That is, the Crimes Act 1914 (Cth).
s 15G(1)(a).
A "controlled operation" is defined in s 15H as an operation that:
- "(a)
- involves the participation of law enforcement officers; and
- (b)
- 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 or an associated offence; and
- (c)
- may involve a law enforcement officer engaging in conduct that would, apart from subsection 15I(1) or (3), constitute a narcotic goods offence."
Section 15M sets out the grounds on which a certificate authorising a controlled operation may be given. An authorising officer must be satisfied that the applicant has provided all the information available to the applicant about the nature and quantity of the narcotic goods to which the operation relates, that the person targeted by the operation is likely to commit an offence against s 233B of the Customs Act or an associated offence, that the operation will make it easier to obtain evidence for the prosecution of this person and that the narcotic goods involved will be under the control of an Australian law enforcement officer.
s 15I(2) and (5).
s 15V(1).
Mason CJ, Brennan, Deane, Dawson and Toohey JJ, McHugh J dissenting. Gaudron J held that the incitement or participation of the officers in the commission of the offence rendered the proceedings an abuse of process.
Gaudron J also held that a stay of the proceedings was necessary.
(1995) 184 CLR 19 at 31.
(1978) 141 CLR 54 .
(1970) 126 CLR 321 at 335.
For example, photographs taken against the will of an accused (Ireland (1970) 126 CLR 321 ) and the results of a breathalyser test administered in contravention of statutory requirements (Bunning v. Cross (1978) 141 CLR 54 ).
Cleland v. The Queen (1982) 151 CLR 1 at 16, 23, 36; Pollard v. The Queen (1992) 176 CLR 177 at 196-197, 201; Ridgeway (1995) 184 CLR 19 at 30-31.
Cleland (1982) 151 CLR 1 at 16-17, 19-20, 31-32; Pollard (1992) 176 CLR 177 at 196-197; Ridgeway (1995) 184 CLR 19 at 37.
Ridgeway (1995) 184 CLR 19 at 31-32.
(1995) 184 CLR 19 at 32.
(1995) 184 CLR 19 at 33.
(1995) 184 CLR 19 at 41-42.
(1995) 184 CLR 19 at 77.
(1995) 184 CLR 19 at 33 per Mason CJ, Deane and Dawson JJ.
(1995) 184 CLR 19 at 48-49, 82.
See Bunning v. Cross (1978) 141 CLR 54 at 74-75.
Ridgeway (1995) 184 CLR 19 at 31.
The Crown concedes that the discretion involves an exercise of judicial power although it is perhaps more correct to say that the exercise of the discretion occurs in the course of exercising judicial power.
s 15X of the Act.
(1909) 8 CLR 330 at 357.
(1983) 152 CLR 570 at 608.
Brandy v. Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 268.
See, for example, Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 at 149, cited in Brandy (1995) 183 CLR 245 at 268.
Brandy (1995) 183 CLR 245 at 268. See also Federal Commissioner of Taxation v. Munro (1926) 38 CLR 153 at 176; Rola Co (Australia) Pty Ltd v. The Commonwealth (1944) 69 CLR 185 at 198-199.
Brandy (1995) 183 CLR 245 at 257, 269, citing R v. Davison (1954) 90 CLR 353 at 368.
R v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254.
Chu Kheng Lim v. Minister for Immigration (1992) 176 CLR 1 at 26 per Brennan, Deane and Dawson JJ, citing Boilermakers (1956) 94 CLR 254 at 270 per Dixon CJ, McTiernan, Fullagar and Kitto JJ.
(1996) 70 ALJR 814 at 847; 138 ALR 577 at 622 and see the cases cited therein.
Chu Kheng Lim (1992) 176 CLR 1 at 27.
(1992) 176 CLR 1 .
(1992) 176 CLR 1 at 35-36.
(1992) 176 CLR 1 at 37.
(1992) 176 CLR 1 at 36. Mason CJ, Toohey J and I did not dissent from the general principle outlined by Brennan, Deane and Dawson JJ, but found that s 54R could be read down so that it only prevented courts from releasing persons lawfully held in custody: see (1992) 176 CLR 1 at 13-14, 50-51, 69.
[1967] 1 AC 259 .
[1967] 1 AC 259 at 290.
The Australian Constitution, 2nd ed, (1997) at 484 (footnotes omitted).
(1991) 172 CLR 501 .
Mason CJ, Dawson, Toohey and McHugh JJ.
Mason CJ, Dawson, Toohey and McHugh JJ, Deane and Gaudron JJ dissenting.
Second Reading Speech to the Crimes Amendment (Controlled Operations) Bill 1996, House of Representatives, Parliamentary Debates (Hansard), 20 June 1996 at MC 2510.
(1995) 184 CLR 19 at 44.
Crimes Amendment (Controlled Operations) Bill 1996.
Second Reading Speech to the Crimes Amendment (Controlled Operations) Bill 1996, House of Representatives, Parliamentary Debates (Hansard), 20 June 1996 at MC 2514.
(1995) 184 CLR 19 at 41.
Williamson v. Ah On (1926) 39 CLR 95 at 108, 126-127, 128; Orient Steam Navigation Co Ltd v. Gleeson (1931) 44 CLR 254 at 259-260, 262- 263, 264; Milicevic v. Campbell (1975) 132 CLR 307 at 316.
(1926) 39 CLR 95 at 122.
(1995) 37 NSWLR 639 .
(1995) 37 NSWLR 639 at 658.
(1995) 37 NSWLR 639 at 657.
cf Sorrells v. United States 287 US 435 at 457 (1932).
It may seem ironic that, after dissenting in Ridgeway, I should hold invalid a section whose effect is to undermine, if not defeat, the consequences of that decision. In Ridgeway, however, I held on the facts that that prosecution did not "bring the administration of justice into disrepute" ((1995) 184 CLR 19 at 92). Earlier, I had said (at 92) that "[t]he ultimate question must always be whether the administration of justice will be brought into disrepute because the processes of the court are being used to prosecute an offence that was artificially created by the misconduct of law enforcement authorities". Holding s 15X invalid is therefore in accord with my dissent in that case although unlike Mason CJ, Deane and Dawson JJ I thought that it was unsatisfactory to simply apply the Bunning v. Cross discretion to the Ridgeway type of case.
The term "Australian court" is defined in the "Dictionary" to the statute so as to include a court of a State.
So far as presently relevant, s 233B provides:
"(1) Any person who:
...
- (b)
- imports, or attempts to import, into Australia any prohibited imports to which this section applies ...; or
- (c)
- without reasonable excuse (proof whereof shall lie upon him) has in his possession, or attempts to obtain possession of, any prohibited imports to which this section applies which have been imported into Australia in contravention of this Act; ...
- shall be guilty of an offence.
(1A) On the prosecution of a person for an offence against the last preceding subsection, being an offence to which paragraph (c) of that subsection applies, it is not necessary for the prosecution to prove that the person knew that the goods in his possession or of which he attempted to obtain possession had been imported into Australia in contravention of this Act, but it is a defence if the person proves that he did not know that the goods in his possession or of which he attempted to obtain possession had been imported into Australia in contravention of this Act.
...
(1C) Any defence for which provision is made under either of the last 2 preceding subsections in relation to an offence does not limit any defence otherwise available to the person charged.
(2) The prohibited imports to which this section applies are prohibited imports that are narcotic goods and the prohibited exports to which this section applies are prohibited exports that are narcotic goods.
(3) A person who is guilty of an offence against subsection (1) of this section is punishable upon conviction as provided by section 235.
(4) This section shall not prevent any person from being proceeded against for an offence against any other section of this Act, but he shall not be liable to be punished twice in respect of any one offence."
Section 15X states:
"In determining, for the purposes of a prosecution for an offence against section 233B of the [Customs Act] or an associated offence, whether evidence that narcotic goods were imported into Australia in contravention of the [Customs Act] 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]), be exempted from detailed scrutiny by officers of the Australian Customs Service; and
- (ii)
- the request for exemption was granted."
"[A]ssociated offence" was inserted into s 3(1) of the Crimes Act by the 1996 Act as follows:
"associated offence means:
- (a)
- in relation to an offence against section 233B of the Customs Act 1901:
- (i)
- an offence under section 236 or 237 of that Act that relates to the offence; or
- (ii)
- an offence under section 7A or subsection 86(1) of this Act that relates to the offence; or
- (b)
- in relation to an offence against section 10, 11, 12, 13 or 14 of the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 - an offence under section 5, 7 or 7A or subsection 86(1) of this Act that relates to the offence; or
- (c)
- in relation to an offence against a law of a State or Territory - an offence:
- (i)
- under a provision of a law of that State or Territory that corresponds to section 5, 7 or 7A or subsection 86(1) of this Act; and
- (ii)
- that relates to the offence."
(1995) 184 CLR 19 .
(1996) 70 ALJR 743 at 747; 138 ALR 220 at 226.
(1949) 79 CLR 201 .
(1953) 87 CLR 144 at 151-152.
(1985) 158 CLR 596 at 614-615.
(1949) 79 CLR 201 at 236.
(1985) 158 CLR 596 at 614.
Waterside Workers' Federation of Australia v. J W Alexander Ltd (1918) 25 CLR 434 at 463.
Australian Building Construction Employees' and Builders Labourers' Federation v. The Commonwealth (1986) 161 CLR 88 ; cf Plaut v. Spendthrift Farm Inc 131 L Ed 2d 328 (1995), in which the United States Supreme Court held invalid as a legislative encroachment upon the judicial branch, a federal law which instructed Art III courts to entertain on their merits claims previously dismissed by those courts on procedural grounds. The decision has been criticised: "Leading Cases", (1995) 111 Harvard Law Review 229.
(1973) 129 CLR 231 .
(1977) 138 CLR 1 .
(1977) 138 CLR 1 at 11. Barwick CJ (at 6), Gibbs J (at 6), Stephen J (at 7) and Mason J (at 7) agreed with the reasons given by Jacobs J.
Waterside Workers' Federation of Australia v. J W Alexander Ltd (1918) 25 CLR 434 at 444. See also Federal Commissioner of Taxation v. Munro (1926) 38 CLR 153 at 175; R v. Davison (1954) 90 CLR 353 at 382-383; Polyukhovich v. The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 608-609, 685, 706; Brandy v. Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 258-259, 269.
6 & 7 Will IV, c 114, s 1.
Maxwell v. The Director of Public Prosecutions [1935] AC 309 at 316-317; Sir Harry Poland QC, "Changes in Criminal Law and Procedure since 1800" in A Century of Law Reform, (1901) 43 at 54.
Chu Kheng Lim v. Minister for Immigration (1992) 176 CLR 1 at 27, 53.
Chu Kheng Lim v. Minister for Immigration (1992) 176 CLR 1 at 36-37, 53.
See Kable v. DPP (NSW) (1996) 70 ALJR 814 ; 138 ALR 577 .
Liyanage v. The Queen [1967] 1 AC 259 at 290.
[1967] 1 AC 259 .
Australian Building Construction Employees' and Builders Labourers' Federation v. The Commonwealth (1986) 161 CLR 88 at 96.
R v. Humby; Ex parte Rooney (1973) 129 CLR 231 at 250.
Liyanage v. The Queen [1967] 1 AC 259 at 280.
(1970) 123 CLR 361 at 394.
(1973) 129 CLR 231 at 249-250.
(1991) 172 CLR 501 .
War Crimes Act Case (1991) 172 CLR 501 at 533-540, 643- 651, 689-690, 717-722.
(1990) 169 CLR 515 at 518.
Williamson v. Ah On (1926) 39 CLR 95 at 106-107.
The King and the Attorney-General of the Commonwealth v. Associated Northern Collieries (1911) 14 CLR 387 , reversed on other grounds by the Full Court: Adelaide Steamship Co Ltd v. The King and the Attorney-General of the Commonwealth (1912) 15 CLR 65 , which decision was upheld by the Privy Council: Attorney- General of the Commonwealth v. Adelaide Steamship Co Ltd (1913) 18 CLR 30 , [1913] AC 781 ; The Commonwealth v. Melbourne Harbour Trust Commissioners (1922) 31 CLR 1 ; Williamson v. Ah On (1926) 39 CLR 95 ; Orient Steam Navigation Co Ltd v. Gleeson (1931) 44 CLR 254 ; Milicevic v. Campbell (1975) 132 CLR 307 ; see also He Kaw Teh v. The Queen (1985) 157 CLR 523 at 545-546, 587-588; Leask v. The Commonwealth (1996) 70 ALJR 995 at 1018-1019; 140 ALR 1 at 33-34.
(1911) 14 CLR 387 at 404.
(1912) 15 CLR 65 at 102 (Full Court); (1913) 18 CLR 30 , [1913] AC 781 (PC).
(1911) 14 CLR 387 at 404. See also Jones v. Sterling (1982) 63 FLR 216 at 221-222.
23 Fed Cas 988 at 990 (1818).
122 Mass 505 at 519 (1877).
180 US 486 (1901).
122 Mass 505 (1877).
193 US 65 (1904).
A Treatise on Statute Law, 2nd ed (1911) at 471.
A Treatise on the Constitutional Limitations, 6th ed (1890) at 452.
(1922) 31 CLR 1 .
(1922) 31 CLR 1 at 12.
(1922) 31 CLR 1 at 17.
(1926) 39 CLR 95 at 122.
(1926) 39 CLR 95 at 122-123. See also Milicevic v. Campbell (1975) 132 CLR 307 at 315-316, 318-319, 321.
Williamson v. Ah On (1926) 39 CLR 95 at 123.
cf Ulster County Court v. Allen 442 US 140 at 156 (1979). There, speaking of the Due Process Clause, the Supreme Court said:
"[I]n criminal cases, the ultimate test of any device's constitutional validity in a given case remains constant: the device must not undermine the factfinder's responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt".
Collins v. Youngblood 497 US 37 at 46 (1990).
(1911) 14 CLR 387 at 404.
Landgraf v. USI Film Products 128 L Ed 2d 229 at 253 (1994). The same passage in the judgment of the Court goes on to state:
"Article I, 10, cl 1 prohibits States from passing another type of retroactive legislation, laws 'impairing the Obligation of Contracts.' The Fifth Amendment's Takings Clause prevents the Legislature (and other government actors) from depriving private persons of vested property rights except for a 'public use' and upon payment of 'just compensation.' The prohibitions on 'Bills of Attainder' in Art I, 9-10, prohibit legislatures from singling out disfavored persons and meting out summary punishment for past conduct. See, eg, United States v. Brown 381 US 437at 456-462 (1965). The Due Process Clause also protects the interests in fair notice and repose that may be compromised by retroactive legislation; a justification sufficient to validate a statute's prospective application under the Clause 'may not suffice' to warrant its retroactive application. Usery v. Turner Elkhorn Mining Co 428 US 1 at 17 (1976)."
Collins v. Youngblood 497 US 37 at 46 (1990). See also Beazell v. Ohio 269 US 167 at 170-171 (1925).
Collins v. Youngblood 497 US 37 at 49-50 (1990).
(1995) 184 CLR 19 at 42-43, 49, 64, 73-74.
The expression used in s 15(1).
(1996) 184 CLR 333 at 345-346.
(1977) 138 CLR 1 at 11.
By order of the Court made on 13 December 1996 by Gaudron, McHugh and Gummow JJ acting pursuant to the Judiciary Act 1903 (Cth), s 40(1).
s 3 and Sched 1, cl 2.
(1995) 184 CLR 19 .
R v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254.
s 233B(1)(c).
Customs Act 1901 (Cth), s 4 (definitions). The quantity of the prohibited imports was not agreed and the applicant contested his guilt of the offences charged.
Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 73(1) ("has or attempts to have in his possession a drug of dependence" [heroin]).
Ridgeway v. The Queen (1995) 184 CLR 19 at 26.
On the application for removal, the applicant challenged the validity of the entire Act. However, during argument, it was made clear that the applicant confined his challenge to the validity of s 15X.
Pursuant to the Judiciary Act 1903 (Cth), s 78B.
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.
Queensland, Report of the Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct (Fitzgerald Report) (1989) at 177. See House of Representatives, Main Committee, Parliamentary Debates (Hansard), 20 June 1996 at MC 2513- 2514.
Second Reading Speech of Attorney-General (Mr Williams), House of Representatives, Main Committee, Parliamentary Debates (Hansard), 20 June 1996 at MC 2514.
Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 (Cth), Sched 1.
Ridgeway v. The Queen (1995) 184 CLR 19 at 26.
Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ; McHugh J dissenting.
(1970) 126 CLR 321 .
(1978) 141 CLR 54 . See also Cleland v. The Queen (1982) 151 CLR 1 ; Pollard v. The Queen (1992) 176 CLR 177 ; Foster v. The Queen (1993) 67 ALJR 550; 113 ALR 1 .
Ridgeway v. The Queen (1995) 184 CLR 19 at 51.
Justice Gaudron was of the view that, by illegally importing the heroin, the Australian Federal Police had incited and participated in the commission of the offence with which Mr Ridgeway was charged and hence that the proceedings were an abuse of process. See (1995) 184 CLR 19 at 74-78.
Justice Brennan was of the view that a verdict and judgment of acquittal should be entered ((1995) 184 CLR 19 at 54). Justice Toohey considered that a verdict of not guilty should be entered ((1995) 184 CLR 19 at 65).
This was the view of Mason CJ, Deane and Dawson JJ ((1995) 184 CLR 19 at 44) and of Gaudron J ((1995) 184 CLR 19 at 78).
Ridgeway v. The Queen (1995) 184 CLR 19 at 44.
Ridgeway v. The Queen (1995) 184 CLR 19 at 53-54.
Ridgeway v. The Queen (1995) 184 CLR 19 at 54.
Brennan J and Toohey J.
s 15V(1).
s 15G(1)(b).
Section 15H defines a "controlled operation" as an operation that:
- "(a)
- involves the participation of law enforcement officers; and
- (b)
- 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 or an associated offence; and
- (c)
- may involve a law enforcement officer engaging in conduct that would, apart from subsection 15I(1) or (3), constitute a narcotic goods offence."
Application for certificate (s 15J); the form and content of applications (s 15K); urgent applications (s 15L); the grounds on which a certificate may be granted (s 15M); the form and content of certificates (s 15N); surrender of certificates (s 15O); and the period for which certificates are in force (s 15P).
The Chief Executive Officer of Customs (s 15Q) and the Minister administering the Act (s 15R).
s 15U.
s 15S.
s 15T.
s 15V(1).
s 15V(2).
s 15W.
Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518, 532, 547.
Acts Interpretation Act 1901 (Cth), s 15AB; CIC Insurance Ltd v. Bankstown Football Club Ltd (1997) 71 ALJR 312 at 324; 141 ALR 618 at 634-635.
Second Reading Speech, House of Representatives, Parliamentary Debates (Hansard), 22 August 1995 at 6.
Second Reading Speech, House of Representatives, Parliamentary Debates (Hansard), 22 August 1995 at 6.
Second Reading Speech, House of Representatives, Parliamentary Debates (Hansard), 22 August 1995 at 6.
Second Reading Speech, House of Representatives, Parliamentary Debates (Hansard), 22 August 1995 at 7.
Senate Legal and Constitutional Legislation Committee, Crimes Amendment (Controlled Operations) Bill 1995 (1995) at 13.
Senate Legal and Constitutional Legislation Committee, Crimes Amendment (Controlled Operations) Bill 1995 (1995) at 13.
Senate Legal and Constitutional Legislation Committee, Crimes Amendment (Controlled Operations) Bill 1995 (1995) at 19-21.
Senate Legal and Constitutional Legislation Committee, Crimes Amendment (Controlled Operations) Bill 1995 (1995) at 21. The report contained the statement (at 21) that the Senate Committee had been informed that there were seven cases before the courts involving facts similar to those in Ridgeway, with five of those defendants in custody. There were apparently four cases where appeals had been lodged seeking to challenge convictions for offences under s 233B(1) of the Customs Act on the basis of the decision in Ridgeway. Three of the four appellants were reported to be in custody. This information was based upon a submission given to the Committee by Mr J McCarthy of the Commonwealth DPP's office.
House of Representatives, Main Committee, Parliamentary Debates (Hansard), 20 June 1996 at MC 2512.
House of Representatives, Main Committee, Parliamentary Debates (Hansard), 20 June 1996 at MC 2510.
House of Representatives, Main Committee, Parliamentary Debates (Hansard), 20 June 1996 at MC 2514.
From the confusing format in the Hansard of the investigations listed by Mr Kerr (see House of Representatives, Parliamentary Debates (Hansard), 22 August 1995 at 6, quoted at pp 17-18), it is possible that this was a mistake in the speech given by Mr Kerr.
s 15I.
Ridgeway v. The Queen (1995) 184 CLR 19 at 43-44 per Mason CJ, Deane and Dawson JJ, at 53-54 per Brennan J.
Ridgeway v. The Queen (1995) 184 CLR 19 at 94.
Director of Public Prosecutions v. Polyukhovich (No 2) unreported, Supreme Court of South Australia, 4 March 1993 per Cox J at 2.
cf CSIRO v. Perry (No 2) (1988) 53 SASR 538 at 557 per King CJ applying United States v. Swift & Co 286 US 106 at 114 (1932) per Cardozo J for the Court; System Federation v. Wright 364 US 642 (1961); Quin v. Mercury Bay Timber Co (1885) 3 NZLR (SC) 352.
Ridgeway v. The Queen (1995) 184 CLR 19 at 54, 65.
Such as the Community Protection Act 1994 (NSW) dealt with in Kable v. DPP (NSW) (1996) 70 ALJR 814 ; 138 ALR 577 .
Such as the Criminal Law (Special Provisions) Act, No 1 of 1962 (Ceylon), considered in Liyanage v. The Queen [1967] 1 AC 259 .
s 15G(2).
House of Representatives, Crimes Amendment (Controlled Operations) Bill 1996, Explanatory Memorandum (1996, taking account of Senate amendments) at 2, at 6 (with reference to s 15X), at 18 (with reference to proposed section 15X).
The Evidence Act 1995 (NSW), in substantially identical terms, came into force in September 1995.
The onus of proof is changed (s 138(1)); it applies to derivative evidence (s 138(1)(b)); it includes confessional evidence (s 138(2)); it enumerates certain matters which must be taken into account in the exercise of the discretion (s 138(3)) and it applies both to civil and criminal proceedings (s 138(1)).
ss 71, 77.
ss 39(2) and 68.
Judiciary Act 1903 (Cth), ss 79, 80.
ss 4, 8 and 9; cf s 5.
Evidence Act 1995 (Cth), s 11(2).
(1995) 184 CLR 19 at 44.
Bunning v. Cross (1978) 141 CLR 54 at 74; Ridgeway v. The Queen (1995) 184 CLR 19 at 31, 49, 77; R v. D'Arrigo [1994] 1 Qd R 603 at 605.
Bunning v. Cross (1978) 141 CLR 54 at 78; Pollard v. The Queen (1992) 176 CLR 177 at 202-203; Ridgeway v. The Queen (1995) 184 CLR 19 at 60-62, 77, 84.
Rodway v. The Queen (1990) 169 CLR 515 ; cf Leeth v. The Commonwealth (1992) 174 CLR 455 at 470; Chau v. DPP (1995) 37 NSWLR 639 at 647, 654-655.
cf Australian Building Construction Employees' and Builders Labourers' Federation v. The Commonwealth (1986) 161 CLR 88 at 96.
Leeth v. The Commonwealth (1992) 174 CLR 455 at 469 applying R v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254.
R v. Quinn; Ex parte Consolidated Food Corporation (1977) 138 CLR 1 at 11.
cf Plaut v. Spendthrift Farm Inc 131 L Ed 2d 328 at 342 (1995).
Plaut v. Spendthrift Farm Inc 131 L Ed 2d 328 at 342, 346-347 (1995); cf Kable v. DPP (NSW) (1996) 70 ALJR 814 ; 138 ALR 577 .
Leeth v. The Commonwealth (1992) 174 CLR 455 at 469-470 applying Liyanage v. The Queen [1967] 1 AC 259 ; cf Hayburn's Case, 2 US 408 at 411-412 (1792); United States v. O'Grady 89 US 641 at 647-648 (1874); C & S Air Lines v. Waterman Corp 333 US 103 at 113 (1948). See also Roberts, "Retrospective Criminal Laws and the Separation of Judicial Power" (1997) 8 Public Law Review 170.
International Covenant on Civil and Political Rights, Art 14.1 ("... In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. ...")
Attorney-General of the Commonwealth of Australia v. The Queen (1957) 95 CLR 529 at 541; [1957] AC 288 at 315 applied in Wilson v. The Minister (1996) 70 ALJR 743 at 748; 138 ALR 220 at 227.
(1991) 172 CLR 84 at 159. See also at 139.
Wilson v. The Minister (1996) 70 ALJR 743 ; 138 ALR 220 .
Plaut v. Spendthrift Farm Inc 131 L Ed 2d 328 at 355 (1995) per Scalia J, joined by Rehnquist CJ, O'Connor, Kennedy, Souter and Thomas JJ, Breyer J concurring.
Plaut v. Spendthrift Farm Inc 131 L Ed 2d 328 at 354- 355 (1995). But see at 356-358 per Breyer J.
Polyukhovich v. The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 532; cf R v. Humby; Ex parte Rooney (1973) 129 CLR 231 at 249-250 per Mason J.
R v. Davison (1954) 90 CLR 353 at 366 per Dixon CJ and McTiernan J.
Huddart, Parker & Co Pty Ltd v. Moorehead (1909) 8 CLR 330 at 357 per Griffith CJ. See also R v. Davison (1954) 90 CLR 353 at 380- 381; R v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 390-393 per Windeyer J. The latter lays emphasis upon Montesquieu's proposition that the performance of the judicial power by people different from those constituting the legislature or the executive is vital to the independent performance of the judicial function.
Polyukhovich v. The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501; Kable v. DPP (NSW) (1996) 70 ALJR 814 at 837; 138 ALR 577 at 608 per Toohey J citing Liyanage v. The Queen [1967] 1 AC 259 at 291.
Wilson v. The Minister (1996) 70 ALJR 743 at 747; 138 ALR 220 at 226.
Kable v. DPP (NSW) (1996) 70 ALJR 814 ; 138 ALR 577 .
Kable v. DPP (NSW) (1996) 70 ALJR 814 at 851; 138 ALR 577 at 628-629 per McHugh J; cf Williams v. Spautz (1992) 174 CLR 509 at 519-520; Walton v. Gardiner (1993) 177 CLR 378 at 395-396; Maxwell v. The Queen (1996) 184 CLR 501 at 534; Moevao v. Department of Labour [1980] 1 NZLR 464 at 481-482 where "public confidence" in the courts is repeatedly referred to.
(1996) 70 ALJR 743 at 750; 138 ALR 220 at 229-230.
(1996) 70 ALJR 814 at 836-837, 848-851; 138 ALR 577 at 608, 624- 629.
Liyanage v. The Queen [1967] 1 AC 259 at 267; Leeth v. The Commonwealth (1992) 174 CLR 455 at 469-470; Polyukhovich v. The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 650. But cf Plaut v. Spendthrift Farm Inc 131 L Ed 2d 328 at 355, footnote 9 (1995) per Scalia J, joined by Rehnquist CJ, O'Connor, Kennedy, Souter and Thomas JJ, Breyer J concurring, and at 357- 358 per Breyer J.
As it did in Kable v. DPP (NSW) (1996) 70 ALJR 814 at 816; 138 ALR 577 at 580.
Chu Kheng Lim v. Minister for Immigration (1992) 176 CLR 1 at 26-29.
Chu Kheng Lim v. Minister for Immigration (1992) 176 CLR 1 at 27; Liyanage v. The Queen [1967] 1 AC 259 at 289-290.
Bunning v. Cross (1978) 141 CLR 54 at 77-78; Cleland v. The Queen (1982) 151 CLR 1 at 20.
Bunning v. Cross (1978) 141 CLR 54 at 75; Pollard v. The Queen (1992) 176 CLR 177 at 203; Foster v. The Queen (1993) 67 ALJR 550 at 557; 113 ALR 1 at 10.
cf Olmstead v. United States 277 US 438 at 470 (1928) per Holmes J (dissenting), at 484-485 per Brandeis J (dissenting). See also Katz v. United States 389 US 347 at 357-359 (1967) per Stewart J for the Court.
Ridgeway v. The Queen (1995) 184 CLR 19 at 31; see also Bunning v. Cross (1978) 141 CLR 54 at 78.
Bunning v. Cross (1978) 141 CLR 54 at 78; Pollard v. The Queen (1992) 176 CLR 177 at 202-203; Ridgeway v. The Queen (1995) 184 CLR 19 at 60-61, 76, 84.
Sherman v. United States 356 US 369 at 380 (1958) per Frankfurter J.
Ridgeway v. The Queen (1995) 184 CLR 19 at 34.
287 US 435 at 457 (1932).
356 US 369 at 385 (1958).
MacMillan Bloedel Ltd v. Simpson [1995] 4 SCR 725 at 749-750 per Lamer CJ, quoting from Jacob, "The Inherent Jurisdiction of the Court" (1970) 23 Current Legal Problems 23 at 27.
United States v. Russell 411 US 423 at 437-439 (1973) per Douglas J dissenting (Brennan J concurring) and at 439-445 per Stewart J dissenting (Brennan and Marshall JJ joining).
(1995) 184 CLR 19 at 34.
s 15G(2).
Nelungaloo Pty Ltd v. The Commonwealth (1948) 75 CLR 495 at 503; R v. Humby; Ex parte Rooney (1973) 129 CLR 231 at 250; Polyukhovich v. The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 533.
Polyukhovich v. The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 532.
Rodway v. The Queen (1990) 169 CLR 515 at 521.
Williamson v. Ah On (1926) 39 CLR 95 at 108-109, 122, 127; Milicevic v. Campbell (1975) 132 CLR 307 at 316; Sorby v. The Commonwealth (1983) 152 CLR 281 at 298-299.
Customs Act 1901 (Cth), s 235(2).
s 15V(1).
War Crimes Amendment Act 1988 (Cth) considered in Polyukhovich v. The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 .
s 54R.
(1992) 176 CLR 1 .
Plaut v. Spendthrift Farm Inc 131 L Ed 2d 328 at 355 (1995).
[1967] 1 AC 259 .
[1967] 1 AC 259 at 287-288, 290-292.
[1967] 1 AC 259 at 290.
[1967] 1 AC 259 at 291-292.
(1992) 176 CLR 1 at 67.
R v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 394.
[1967] 1 AC 259 at 290; cf Plaut v. Spendthrift Farm Inc 131 L Ed 2d 328 at 355 (1995).
s 15I(1).
s 15X.
s 15G(1)(a).
s 15I(1).
(1995) 184 CLR 19 at 38.
See eg Ridgeway v. The Queen (1995) 184 CLR 19 at 60, 87; Connelly v. DPP [1964] AC 1254 at 1354 per Lord Devlin; Hunter v. Chief Constable [1982] AC 529 at 536 per Lord Diplock; Moevao v. Department of Labour [1980] 1 NZLR 464 at 482 per Richardson J.
R v. Mack (1984) 44 CCC (3rd) 513 at 539 per Lamer J for the Court.
(1996) 70 ALJR 743 at 747; 138 ALR 220 at 226. See also Maxwell v. The Queen (1996) 184 CLR 501 at 534.
Sherman v. United States 356 US 369 at 380 (1958) per Frankfurter J.
Ridgeway v. The Queen (1995) 184 CLR 19 at 35-36.
Ridgeway v. The Queen (1995) 184 CLR 19 at 37.
cf Ridgeway v. The Queen (1995) 184 CLR 19 at 44.
(1995) 184 CLR 19 at 26.
Although we have no record of the form of the order, and its form is not recorded in the transcript of the judge's reasons, it is clear from those reasons that the judge intended to make, and did make, an order in the same form as the order that was made in Ridgeway.
s 15G(1)(a).
s 15G(1)(c).
s 15J.
s 15M.
s 15R.
s 15T.
cf Rogers v. The Queen (1994) 181 CLR 251 ; see also Director of Public Prosecutions (Cth) v. Polyukhovich unreported, Supreme Court of South Australia, 4 March 1993 per Cox J.
Second Reading Speech of the Attorney-General: House of Representatives, Main Committee, Parliamentary Debates (Hansard), 20 June 1996 at MC 2510, 2512, 2514.
Bunning v. Cross (1978) 141 CLR 54 .
Bunning v. Cross (1978) 141 CLR 54 at 75 per Stephen and Aickin JJ.
Bunning v. Cross (1978) 141 CLR 54 at 78 per Stephen and Aickin JJ.
See, eg, in this Court Cleland v. The Queen (1982) 151 CLR 1 ; Pollard v. The Queen (1992) 176 CLR 177 ; Foster v. The Queen (1993) 67 ALJR 550; 113 ALR 1 .
Ridgeway (1995) 184 CLR 19 at 31-32.
Ridgeway (1995) 184 CLR 19 at 37-38 per Mason CJ, Deane and Dawson JJ.
See, eg, Bunning v. Cross (1978) 141 CLR 54 at 77-78; Pollard v. The Queen (1992) 176 CLR 177 at 202-203.
Ridgeway (1995) 184 CLR 19 at 38 per Mason CJ, Deane and Dawson JJ.
Ridgeway (1995) 184 CLR 19 at 33 per Mason CJ, Deane and Dawson JJ.
See, eg, Evidence Act 1995 (Cth), Pt 3.2.
Crimes Act, Pt 1C.
Crimes Act, s 23A(1). "Any law of the Commonwealth in force immediately before the commencement of this Part, and any rule of the common law, has no effect so far as it is inconsistent with this Part."
Polyukhovich v. The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 532 per Mason CJ.
(1909) 8 CLR 330 at 357.
(1970) 123 CLR 361 at 374.
War Crimes Act Case (1991) 172 CLR 501 at 532-533 per Mason CJ.
(1978) 141 CLR 54 at 73 per Stephen and Aickin JJ.
(1970) 126 CLR 321 .
R v. Sang [1980] AC 402 ; R v. Khan [1996] 3 WLR 162 ; [1996] 3 All ER 289.
Police and Criminal Evidence Act 1984 (UK), s 78.
This provision has given rise to much litigation in the Supreme Court. See, eg, R v. Collins [1987] 1 SCR 265 ; R v. Wijesinha [1995] 3 SCR 422; R v. Stillman (1997) 144 DLR (4th) 193.
United States v. Russell 411 US 423 at 445 (1973) per Stewart J (dissenting).
Hampton v. United States 425 US 484 at 488-489 (1976) per Rehnquist J, at 492 n 2 per Powell J. Both the majority and dissenting judgments in Jacobson v. United States 503 US 540 (1992) appear to accept that the relevant question is whether government agents' conduct caused the accused to commit the offence.
Ridgeway (1995) 184 CLR 19 at 34 per Mason CJ, Deane and Dawson JJ.
[1998] HCA 9 at 37.
cf MacMillan Bloedel Ltd v. Simpson [1995] 4 SCR 725 .
s 15V(1).
s 15X(b). A certificate may be given by the Minister that such a request was made and granted and in a prosecution for an offence against s 233B of the Customs Act or an associated offence, that certificate is, upon mere production, prima facie evidence of the facts stated in it: s 15W.
In his Second Reading Speech the Attorney-General gave three cases as examples: House of Representatives, Main Committee, Parliamentary Debates (Hansard), 20 June 1996 at MC 2514. See also the Second Reading Speech of the Minister for Justice when a similar Bill was introduced in 1995: House of Representatives, Parliamentary Debates (Hansard), 22 August 1995 at 6. That Bill lapsed when Parliament was dissolved. The Minister for Justice then gave four cases as examples.
War Crimes Act Case (1991) 172 CLR 501 at 533-534 per Mason CJ, 649 per Dawson J, 689 per Toohey J, 721 per McHugh J; cf 631 per Deane J, 704-705 per Gaudron J.
(1990) 169 CLR 515 .
Chu Kheng Lim v. Minister for Immigration (1992) 176 CLR 1 at 27 per Brennan, Deane and Dawson JJ.
(1992) 176 CLR 1 at 27.
Waterside Workers' Federation of Australia v. J W Alexander Ltd (1918) 25 CLR 434 at 444.
R v. Davison (1954) 90 CLR 353 at 368, 383.
See, also, the War Crimes Act Case (1991) 172 CLR 501 at 536-539, 608-610, 613-614, 632, 647, 649, 685, 705-707, 721.
[1967] 1 AC 259 .
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