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District Court 11 May 2023

R v Campbell; R v Waters

[2023] NSWDC 626

DrugsPublic order & justice offences
PRE

Citation: R v Campbell; R v Waters [2023] NSWDC 626
Court: District Court of New South Wales
Date: 11 May 2023
Judge(s): Mahony SC DCJ

Background

Two co-accused, Campbell and Waters, faced trial on an indictment alleging, among other counts, conspiracy to import a commercial quantity of a border controlled drug. The prosecution arose from an AFP investigation that began in early 2017, when Australian Border Force discovered approximately 1.28 tonnes of cocaine concealed within steel structures imported from China. The AFP seized the drugs and subsequently authorised a Major Controlled Operation (MCO) on 15 September 2017 under s 15GI of the Crimes Act 1914 (Cth), employing undercover operatives to identify and gather evidence against those responsible for the importation.

The controlled operation extended over several months and across multiple countries, involving encrypted communications within a criminal syndicate, undercover meetings, and ultimately a meeting in Belgrade in January 2018 at which Waters and others were present. Both accused were charged following that operation, with Waters implicated principally through audio recordings of the Belgrade meeting and messages found on encrypted devices seized at the time of his arrest.

Before trial, both accused filed notices of motion challenging the validity of the MCO authorisations and seeking exclusion of all evidence derived from the operation, together with permanent stays of the relevant charges. The applications raised identical legal questions, though Campbell's stay application was confined to one count on the indictment.

Legal Issues

  • Whether the MCO authorisations (and their variations and extensions) were invalid for non-compliance with s 15GI(2)(f) of the Crimes Act, on the basis that the controlled operation was likely to induce persons to commit offences they would not otherwise have committed.
  • Whether the authorisations were invalid under s 15GI(2)(g)(i) and (ii) because the operation was likely to seriously endanger the health or safety of persons, or cause death or serious injury.
  • Whether the decision in Gedeon and Dowe v Commissioner of the NSW Crime Commission (2008) 236 CLR 120 (construing s 7 of the NSW Law Enforcement (Controlled Operations) Act 1997) applied by analogy to Part 1AB of the Crimes Act, permitting a collateral attack on the authorisations.
  • Whether the evidence obtained under the MCO should be excluded.
  • Whether either count should be permanently stayed as an abuse of process.

Decision

Issue 1: Whether the Gedeon approach to invalidity applies to s 15GI of the Crimes Act

The court declined to construe s 15GI of the Crimes Act in the same manner as the High Court construed s 7 of the NSW LECO Act in Gedeon (at [81]-[84]). In Gedeon, s 7(1) contained an absolute prohibition ("must not be granted") that delimited the power to authorise a controlled operation, allowing an objective inquiry into whether the operation in fact risked endangering health and safety. Section 15GI(2) is expressed differently: it qualifies the prohibition with the words "unless the Authorising Officer is satisfied on reasonable grounds," directing any inquiry to whether that satisfaction was reasonably formed rather than to an independent objective assessment of the risks themselves (at [82]-[84]). The court was therefore not persuaded that Parliament responded to the same concerns in the same way.

Issue 2: Whether the authorisations were invalid for want of reasonable satisfaction

No material placed before the Authorising Officer at the time of the authorisations was in evidence before the court. Each authorisation and variation on its face recorded that the relevant decision maker was satisfied of the matters required by s 15GI(2), including those in paragraphs (f) and (g). In the absence of contrary evidence, s 15HZ of the Crimes Act applied, rendering the authorisations proof that the requisite satisfaction was formed (at [85]). Even if that analysis were wrong, the court found that the evidence relied upon by the applicants would not have justified a finding that the Authorising Officer could not have been reasonably satisfied of the relevant matters (at [86]-[89]).

Issue 3: Inducement and endangerment grounds specifically

The court found no evidence that any person was induced to commit an offence they would not otherwise have intended to commit, in breach of s 15GI(2)(f) (at [86]). On the health and safety grounds under s 15GI(2)(g), the court rejected the submission that the AFP's seizure of the consignment endangered persons, noting the drugs were lawfully seized and none were released into the community (distinguishing Gedeon) (at [88]). The court also rejected the argument that the choice of Serbia as an operational venue endangered participants simply because Campbell was later convicted of a firearms offence there (at [88]). Threats made by those higher in the criminal hierarchy reflected their own criminal conduct rather than conduct attributable to the authorised operation itself (at [88]).

Issue 4: Permanent stay of proceedings

A permanent stay of criminal proceedings is an extraordinary remedy available only in exceptional or extreme circumstances, or where its refusal would bring the administration of justice into disrepute (at [92]). Because the court upheld the validity of the MCO authorisations and the Crown remained entitled to adduce evidence derived from the operation, no basis for a stay of any count was established (at [93]).

Orders Made

  • Campbell's notice of motion (filed 3 May 2023) dismissed: the stay of proceedings on Count 2 and the related alternative relief were refused.
  • Waters' notice of motion (filed by leave on 8 May 2023) dismissed: declarations of invalidity of the MCO authorisations refused, evidence exclusion refused, and the permanent stay refused.

Key Takeaways

  • Section 15GI(2) of the Crimes Act 1914 (Cth) differs materially from s 7(1) of the NSW Law Enforcement (Controlled Operations) Act 1997 as construed in Gedeon: because s 15GI qualifies its prohibition by reference to the Authorising Officer's reasonable satisfaction, any collateral challenge to a Commonwealth MCO is directed to whether that satisfaction was lawfully and reasonably formed, not to an independent objective assessment of the operation's risks (at [81]-[84]).

  • Where no evidence of the material before the Authorising Officer is placed before the court, s 15HZ of the Crimes Act operates so that the authorisation itself constitutes proof that the requisite satisfaction was formed; a challenge unsupported by that underlying material faces a formidable evidential obstacle (at [85]).

  • Threats made by members of a criminal syndicate against co-conspirators and undercover officers during a controlled operation do not, without more, constitute the kind of endangerment to health or safety that should have precluded an Authorising Officer from being satisfied under s 15GI(2)(g), particularly where the object of the legislation is to enable investigation of serious criminal conduct (at [88]).

  • Lawful seizure of border controlled drugs by the AFP does not constitute the "endangerment" of persons within the meaning of the controlled operations legislation, and a court will not treat subsequent events (such as an accused's conviction for an unrelated offence in a foreign jurisdiction) as retrospectively demonstrating that an authorisation was improperly granted (at [88]).

  • A permanent stay of criminal proceedings remains an extraordinary remedy, confined to exceptional circumstances or cases where refusal would bring the administration of justice into disrepute; the dismissal of an invalidity challenge to the underlying controlled operation removes the foundation for a stay application tied to that challenge (at [92]-[93]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth)
- Law Enforcement (Controlled Operations) Act 1997 (NSW)

Cases
- CanWest Global Communications Corp v Australian Broadcasting Authority [1997] FCR 540
- Commissioner of Police, NSW v Taleb (2019) 276 A Crim R 192; [2019] NSWSC 21
- Dowe v NSW Crime Commission (2007) 117 A Crim R 44
- Gedeon and Dowe v Commissioner of the NSW Crime Commission (2008) 236 CLR 120; [2008] HCA 43
- Gould v Director of Public Prosecution (Cth) (2018) 273 A Crim R 91; [2018] NSWCCA 109
- GS v R; Director of Public Prosecutions (NSW) v GS [2022] NSWCCA 65
- La Rocca v R [2023] NSWCCA 45
- Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
- Ousley v The Queen (1997) 192 CLR 69
- Palmer v State of Western Australia (2021) 95 ALJR 229
- Prior v Mole (2017) 261 CLR 265
- R v A2 (2019) 269 CLR 507; [2019] HCA 35
- Ridgeway v The Queen (1995) 184 CLR 19
- Taleb v R [2019] NSWSC 241