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Court of Criminal Appeal 10 March 2023

La Rocca v R

[2023] NSWCCA 45

Also reported as (2023) 306 A Crim R 301
Drugs
CRIMINAL PROCEDURE

Citation: La Rocca v R [2023] NSWCCA 45
Court: Court of Criminal Appeal
Date: 10 March 2023
Judge(s): Bell CJ (with Davies J and N Adams J agreeing)

Background

The applicant was charged with attempting to possess a commercial quantity of an unlawfully imported border controlled drug under the Criminal Code Act 1995 (Cth). The charge arose from a controlled delivery operation in September 2017 in which Australian Federal Police and NSW Police delivered two boxes of candles, concealing approximately 14.69 kg of MDMA, to an address in Bradbury, NSW. The applicant was arrested after being observed taking the boxes to a hotel room at the Star Casino.

During a pre-trial voir dire, it emerged that the investigating officer had affixed a prominent, coloured Singapore Airlines label to one of the two boxes before the controlled delivery. That label had not been on the box when police first received the consignment. The officer said he added it to make the delivery appear realistic and to link the airway bill number to the delivery address.

The applicant applied for a permanent stay of proceedings, arguing that the label made it impossible to raise the statutory defence under section 307.5(4) of the Criminal Code. That defence allows an accused to avoid liability by proving on the balance of probabilities that they did not know the drug was unlawfully imported. The primary judge (Musgrave DCJ) dismissed the stay application, and the applicant sought leave to appeal.

Legal Issues

  • Whether the investigating officer's conduct in affixing the Singapore Airlines label to the consignment constituted an abuse of process warranting a permanent stay of criminal proceedings.
  • Whether the primary judge erred by treating the officer's lack of deliberate or reckless intent as a decisive factor weighing against a stay.
  • Whether the primary judge erred by applying the Ridgeway distinction between police conduct that causes an offence and conduct that merely provides the opportunity for an offence to occur.
  • Whether the administration of justice would be brought into disrepute if the proceedings were permitted to continue.

Decision

Irrelevant consideration: the Ridgeway distinction

Bell CJ held that the primary judge's reasoning was vitiated by reliance on an irrelevant consideration. The primary judge appeared attracted to the distinction drawn by Gaudron J in Ridgeway v The Queen between conduct that causes an offence and conduct that merely provides the opportunity for one. That distinction was not applicable on the facts of this case, and applying it constituted an error that undermined the exercise of discretion (at [54]).

State of mind of the officer

The primary judge placed significant weight on her finding that the officer's conduct was not deliberate or reckless, but arose from inexperience and lack of diligence. Bell CJ held that this approach was inconsistent with clear statements by the plurality and Keane J in Strickland v Commonwealth Director of Public Prosecutions that deliberate, intentional or reckless misconduct is not essential for a permanent stay to be warranted (at [58]). Where the consequences of the conduct are potentially profound, less egregious but still negligent or incompetent conduct with serious consequences for an accused may equally warrant a permanent stay (at [60]).

Effect on the statutory defence

The officer's deliberate act of affixing the label directly altered the appearance of the evidence in a way that destroyed the applicant's practical ability to raise the legislatively provided defence. The Crown conceded the forensic disadvantage was incurable and could not be remedied by direction, exclusion of evidence, or any other curative measure. Bell CJ drew an analogy with the reasoning in Lee v The Queen and Strickland, observing that the officer's conduct altered the position of the prosecution relative to the applicant in a materially adverse way (at [55]). The alteration of evidence with material consequences for the availability of a defence is, in Bell CJ's view, more problematic than unlawfully obtaining evidence of truth (at [59]).

Disrepute to the administration of justice

The Court of Criminal Appeal held that permitting the trial to proceed in circumstances where the applicant was practically deprived of a defence expressly provided by Parliament would bring the administration of justice into disrepute (at [64]). The primary judge's refusal to grant the stay was not reasonably open on the extraordinary facts of this case, and the discretion miscarried (at [62]-[63]).

N Adams J agreed with the orders but emphasised that her concurrence rested on the Crown's uncontested concession that the applicant had suffered an incurable forensic disadvantage, not merely a theoretical one (at [72]).

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The order dismissing the notice of motion for a permanent stay of proceedings set aside.
  • Proceedings permanently stayed.

Key Takeaways

  • A permanent stay of criminal proceedings does not require proof that police conduct was deliberate or reckless. The Court of Criminal Appeal confirmed, following Strickland, that negligent or incompetent conduct with serious and incurable consequences for an accused can be sufficient to warrant a stay (at [58], [60]).

  • Where police deliberately alter the physical appearance of evidence in a way that destroys an accused's practical ability to raise a statutory defence, that conduct "goes to the very root of the administration of justice" and may bring the administration of justice into disrepute if proceedings are permitted to continue (at [63]-[64]).

  • The Ridgeway distinction between police conduct that causes an offence and conduct that merely provides the opportunity for one is not universally applicable to stay applications. Reliance on that distinction where it has no bearing on the facts is an error capable of vitiating the exercise of discretion (at [54]).

  • An incurable forensic disadvantage, particularly one conceded by the Crown, carries substantial weight in a stay application. The Crown's concession in this case that no curative direction, evidence exclusion or other remedy could address the disadvantage was central to the Court's conclusion (at [26], [72]).

  • Under section 307.5(4) of the Criminal Code Act 1995 (Cth), an accused ordinarily needs to give evidence to establish the defence of ignorance of unlawful importation. Conduct by investigating police that forecloses that defence before trial subverts the intention of Parliament in providing for it (at [55], [68]).

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW) s 5F(3)
- Criminal Code Act 1995 (Cth) ss 11.1(1) and 307.5(1)
- Law Enforcement (Controlled Operations) Act 1997 (NSW) s 13(a)

Cases
- Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48
- Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22
- Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46
- La Rocca v R [2021] NSWCCA 116
- Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20
- Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50
- R v Glennon (1992) 173 CLR 592; [1992] HCA 16
- R v Grant [2009] 2 SCR 353
- R v Horseferry Road Magistrates’ Court; ex parte Bennett [1994] 1 AC 42
- Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66
- Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42
- Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53
- Truong v The Queen (2004) 223 CLR 122; [2004] HCA 10