Citation: R v Mallah [2005] NSWSC 358
Court: Supreme Court of New South Wales (Common Law Division)
Date: 11 February 2005
Judge(s): Wood CJ at CL
Background
The accused was charged on indictment with three offences under the Criminal Code Act 1995 (Cth), all relating to alleged acts done in preparation for or planning a terrorist act. The charges centred on threats to kill officers of ASIO and the Department of Foreign Affairs and Trade (DFAT), as well as the sale of a videotape, photographs, and a typed statement to an undercover police operative known as "Greg" for $3,000.
The background to the prosecution included the refusal of a passport application on security grounds, conversations intercepted by telephone warrant in 2003, and the discovery of a rifle, ammunition, and various written documents at the accused's home during a search warrant executed in September 2003. Following those events, police conducted a covert operation involving undercover operative Greg, who made contact with the accused between 27 November and 3 December 2003.
At a pre-trial hearing, the accused brought a motion to exclude evidence gathered during the covert operation. Two other pre-trial motions (by the NSW Police Service and the Commonwealth Director of Public Prosecutions) were also before the court, though the substantive judgment deals with the accused's motion.
Legal Issues
- Whether undercover operative Greg was engaged in unlawful conduct by acting outside the scope of a Controlled Operations Certificate issued under the Crimes Act 1914 (Cth), such that the evidence obtained should be excluded.
- Whether Greg's conduct was improper because he made misrepresentations to the accused that induced the offending and the production of the videotape.
- Whether, as a consequence of any unlawfulness or impropriety, the evidence should be excluded under s 90 of the Evidence Act 1995 (NSW) (exclusion of admissions on grounds of unfairness) or s 138 (exclusion of improperly or unlawfully obtained evidence).
- Whether, even if the evidence as a whole was admissible, admissions relating to past conduct (Count 1) should be treated differently from admissions relating to prospective or current offending (Counts 2 and 3) and excluded on that basis.
Decision
Wood CJ at CL dismissed the accused's motion. His Honour found that the evidence obtained during the covert operation was admissible, notwithstanding that some contravention of law or impropriety existed in the manner in which it was obtained.
On the question of unlawfulness, the court examined whether Greg's conduct fell outside the scope of the Controlled Operations Certificate. To the extent that any aspects of Greg's conduct were not covered by the certificate, the court weighed this against the nature and seriousness of the offending under the s 138 balancing exercise.
On the s 90 unfairness argument, the court was not persuaded that the covert operation involved a deliberate plan to circumvent the accused's right to silence. The accused had declined to be interviewed by police in September 2003, but the court held that the covert operation's primary purpose was to ascertain whether the accused had a current intention to harm others and to prevent that from occurring. Any incidental discussion relating to past conduct was considered to flow from that legitimate objective.
The court also rejected the fallback submission that admissions relating to Count 1 (past conduct) should be excised while those relating to Counts 2 and 3 were admitted. The admissions were closely interconnected, and the court found that the earlier admissions provided essential context for the later ones. Separating them would have been a meaningless exercise.
Orders Made
- The motion of the accused to disallow the tender of the undercover operative evidence was dismissed.
- The evidence was ruled admissible, subject to any further submissions that might be addressed in relation to individual passages at trial.
Key Takeaways
- Under s 138 of the Evidence Act 1995, evidence obtained through unlawful or improper means is not automatically excluded; the court must weigh the desirability of admitting the evidence against the undesirability of admitting evidence so obtained, having regard to the seriousness of the offending and other relevant factors.
- A covert operation directed primarily at assessing and preventing a current threat, rather than at circumventing a previously exercised right to silence, will not ordinarily give rise to the kind of unfairness required to exclude admissions under s 90.
- Where admissions relating to past and prospective offending are closely interconnected and the former provides essential context for the latter, a court may decline to excise one category while admitting the other.
- The Supreme Court confirmed that the legitimacy of a controlled operation's purpose is a significant factor in the s 138 balancing exercise, particularly in terrorism-related prosecutions.
- Evidence independently capable of proof (such as documents seized by warrant before the covert operation began) is not rendered inadmissible solely because related admissions were obtained through a partly irregular undercover operation.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), ss 11.2, 11.4, 101.6(1)
- Crimes Act 1914 (Cth) (Controlled Operations provisions)
- Evidence Act 1995 (NSW), ss 90, 138
Cases:
- Ridgeway v The Queen (1995) 184 CLR 19
- DPP v Carr (2002) 127 A Crim R 151
- DPP v Coe [2003] NSWSC 363
- R v Esposito (1998) 45 NSWLR 442
- R v Suteski (2002) 56 NSWLR 182
- R v Em [2003] NSWCCA 374
- R v Ladocki [2004] NSWCCA 336
- R v Blick (2000) 111 A Crim R 326
- R v Dalley [2002] NSWCCA 284
- R v Helmhout [2001] NSWCCA 372
- R v Juric [2002] 4 VR 411
- R v Chimirri [2002] VSC 555
- R v Dewhurst [2001] VSC 172
- R v Roba [2000] VSC 96
- R v MAI and Anor (1992) 26 NSWLR 371
- R v Lisoff [1999] NSWCCA 364
- R v Phan [2003] NSWCCA 205
- R v Suckling [1999] NSWCCA 36
- R v Cummins NSWCCA 23 November 1998