Citation: Regina v Bijkerk [2000] NSWCCA 122
Court: NSW Court of Criminal Appeal
Date: 14 April 2000
Judges: Grove J, Sully J, Simpson J
Background
The appellant was convicted in the Sydney District Court of conspiracy to import a commercial quantity of cocaine, with the offence particularised as occurring between January and September 1993. The conviction followed a plea of guilty entered after the trial judge, Flannery DCJ, ruled that the Crown's proposed evidence was admissible. The plea came after three previous trials had failed to produce a verdict, with two earlier judges having conducted similar admissibility hearings and reaching the same conclusion.
The prosecution arose from a police operation targeting a customs fraud scheme. A police informant named Modica had devised a method of forging an Australian Customs inspection stamp, which allowed goods shipped from the United States to bypass inspection on arrival in Australia. Police arranged for Modica to make recorded contact with suspected criminal associates, ultimately including the appellant.
The appellant travelled twice to the United States in connection with a plan to import approximately four kilograms of cocaine. On the second trip, in September 1993, he purchased cocaine, concealed it within coffee granule cartons bearing forged invoices supplied by Modica, and lodged the consignment for shipment. Australian authorities intercepted the delivery, made a substitution, and arrested the appellant when he attended to collect it.
Legal Issues
- Whether Flannery DCJ erred in applying the "unwary innocent" test when determining that the case did not fall within the first category of entrapment identified in Ridgeway v The Queen (1995) 184 CLR 19
- Whether the police conduct fell within the second Ridgeway category such that all Crown evidence ought to have been excluded
- Whether the fact that police actually imported the cocaine into Australia was a relevant consideration, given the charge was conspiracy rather than importation
- Whether the introduction of s 15X of the Crimes Act 1914 (Cth) had any bearing on the conspiracy charge
- Whether the degree of police procurement in this case exceeded that in Ridgeway, given the informant instigated the offence
- Whether Flannery DCJ gave proper consideration to the absence of evidence that the appellant would otherwise have committed such an offence
- Whether his Honour erred in his application of s 138 of the Evidence Act in declining to exclude the evidence
Decision
Grove J (with Sully J and Simpson J agreeing) dismissed the appeal, finding no error in Flannery DCJ's admissibility ruling. The central question was whether police conduct in deploying Modica as an informant, and in facilitating the importation scheme, amounted to the kind of unlawful procurement that the High Court in Ridgeway held could justify excluding prosecution evidence or staying proceedings.
On the first Ridgeway category, the court found that the "unwary innocent" test was appropriately applied. The evidence disclosed that the appellant and his associates had existing criminal interests in drug importation, including a prior failed cocaine importation attempt. This was not a case of police inducing an otherwise innocent person to commit an offence.
Regarding police conduct as co-conspirators, the court noted that evidence showed Australian Federal Police had actively sought to have the appellant arrested in the United States during his first trip and had requested that no shipment be permitted to proceed. Rather than demonstrating police participation in the conspiracy, this evidence pointed in the opposite direction, suggesting police were endeavouring to have the appellant dealt with lawfully at the earliest opportunity.
On the remaining grounds, the court found no error in the trial judge's approach to the Ridgeway categories or to s 138 of the Evidence Act. The approach was consistent with the methodology approved in R v Salem and related authorities. The court also declined to elevate an observation by Flannery DCJ about investigative techniques into a legal principle that he had misapplied.
Orders Made
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that the Ridgeway entrapment doctrine does not exclude evidence merely because police used an informant to make contact with and monitor suspected drug offenders who already had a criminal disposition toward the type of offence in question.
- Where evidence establishes that police sought to have a defendant arrested and the importation prevented, rather than facilitating completion of the offence, that conduct is inconsistent with characterisation as criminal co-conspiracy.
- A conspiracy charge is analytically distinct from the completed act of importation: the fact that police physically imported drugs as part of an interception operation did not, on these facts, bring the case within the second Ridgeway category or affect admissibility of evidence going to the conspiracy.
- In dismissing the appeal, the court reiterated that s 138 of the Evidence Act must be applied consistently with the principles approved in R v Salem, requiring a balancing exercise that accounts for the seriousness of the offence and the nature of the police conduct.
- Successive voir dire hearings before three different District Court judges, each reaching the same conclusion on admissibility, formed part of the evidentiary context the Court of Criminal Appeal assessed in finding no error in Flannery DCJ's ruling.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth), including s 15X
- Evidence Act 1995 (NSW), s 138
Cases:
- Ridgeway v The Queen (1995) 184 CLR 19
- R v Sloane (1990) 49 A Crim R 270
- Sherman v United States 356 US 369
- R v Hsing (1992) 25 NSWLR 685
- R v Dumas (unreported, NSW CCA, 20 November 1995)
- R v Karam (1995) 83 A Crim R 416
- R v Salem (1997) 96 A Crim R 421
- R v Coulstock (1998) 99 A Crim R 143
- R v Saleam [1999] NSWCCA 86
- R v N [1999] NSWCCA 187