Kolalich v The Queen S145/1996 [1997] HCATrans 70 (14 February 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S145 of 1996

B e t w e e n -

RICHARD KOLALICH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 FEBRUARY 1997, AT 2.39 PM

Copyright in the High Court of Australia

MR J.C. PAPAYANNI: If the Court pleases, I appear for the applicant. (instructed by Jeffreys & Associates)

MS E.L. FULLERTON: May it please the Court, I appear with MR C.P. O'DONNELL for the Crown. (instructed by the Commonwealth Director of Public Prosecutions)

TOOHEY J: Yes, Mr Papayanni.

GAUDRON J: Why do you appear for the Crown? It is the Queen, is it not?

MS FULLERTON: I do beg your pardon.

GAUDRON J: I am just wondering, why is it still called the Queen? Why is it not the DPP who prosecutes these days?

MS FULLERTON: That might be an interesting question.

TOOHEY J: A good question.

MS FULLERTON: I am certainly briefed and paid by them. Just who I nominate as the party for whom I appear seems to change depending upon the forum in which I appear, your Honour.

GAUDRON J: It just seems to me that the day when the Queen prosecutes are long since past because - - -

MS FULLERTON: That day may fast be approaching.

MR PAPAYANNI: We may not have to wait too long.

TOOHEY J: Yes, Mr Papayanni.

MR PAPAYANNI: If the Court pleases. The facts in this case are very similar to those in Ridgeway and - - -

TOOHEY J: They are not, really, are they?

MR PAPAYANNI: They are, yes.

TOOHEY J: Are they? I thought the evidence of the Crown was of a conspiracy entered into before there was any involvement of police officers.

MR PAPAYANNI: Yes, but, see, from what they are putting here in relation to it, that in Ridgeway the facts there were similar in the fact that Ridgeway could have been charged with conspiracy. Now, in Ridgeway's Case, Ridgeway went to Malaysia and he spoke to Lee, and Lee and Ridgeway agreed. There could be said to be a conspiracy beforehand there in relation to that and that what happened afterwards were the acts of the police and Lee who was the informer.

You get the similar situation here in relation to this matter where Yeo and Kolalich of course - I will come to the charge in a minute because it is important in this case, but the two differences between Ridgeway is that this case is one of conspiracy. Ridgeway was possession of imported heroin.

GAUDRON J: They are conceptually different charges for the purposes of the Ridgeway considerations, really.

MR PAPAYANNI: Yes, and therefore the principles should be different to Ridgeway and follow Ireland. Now, the other difference here is that there was an objection to particular evidence; not objection to the whole of the evidence. Now, in relation to particular evidence, if it is essential, as the Court of Criminal Appeal held, that before the Bunning v Cross discretion can be exercised, you must have evidence that goes, because of the illegal police conduct, to the commission of the offence or an element to the offence. If that was the case in relation to particular evidence, it would mean that you would get a verdict by direction in every case or an acquittal in every case.

Now, in Ireland's Case, of course, there was a situation there where murder had been committed beforehand. It was the police's illegal conduct in relation to the photographs and the evidence of the police officer that went to the fact that connected the accused up with the murder. Now, in this particular situation - and I will come to the charge in a minute. What the Court of Criminal Appeal has held in this particular case, that it is an essential element, before you look at the Bunning v Cross situation, that the police conduct must go directly to an element of the case or the commission of the offence. Now, in my submission, in relation to - is wrong; and secondly, it is wrong in this case also because the police conduct, the evidence of the police conduct goes to an element of the offence.

Now, in order to understand that, it is essential that one look at the charge which is on page 1 and, in that connection, perhaps I could hand your Honours section 233B. Your Honours will see there, in relation to the charge, which was laid under 233B(cb) which is conspiracy in relation to any prohibited import - if one looks at the charge, the charge is that Kolalich and Begovic entered into a conspiracy with "other persons" also. That each of them conspired "with each other and divers other persons". Now, the "divers other persons" were Yeo, who was the agent for the police. The Thai police - - -

GAUDRON J: But at that time? Was it not the evidence that he became the agent later?

MR PAPAYANNI: Yes, but this is only in relation to evidence after 10 September - particular evidence; not the whole of the evidence. This goes to a retrial. In Ridgeway's Case it goes to a quashing of the conviction. In Ireland's Case it went to a retrial. This is a case where particular evidence is objected to, not the whole of the evidence. That is why the question of abuse of process and so on does not come into this matter. So you get a situation here where particular evidence is objected to. If it was a situation that you had to have that the evidence of police misconduct or illegality went to a particular element of the offence, what it would mean that there would be no retrial. It would mean that in every case where particular evidence is objected to, you could not get that particular evidence excluded unless you could get a verdict by direction or an acquittal.

Now, the second point that I make is that in a conspiracy, the evidence in relation to the illegal conduct of the police and the informer, Yeo, who was in the same situation as Lee, or police agent, and also the police brought in themselves the heroin into the country. Now, we say also here that it was an essential element in any case but it was not necessary to have that for the discretion to be exercised because the discretion is exercised on the public interest. The public interest is lessened here because it is a retrial and he is not escaping conviction and the public policy is still the same where a condoning of the police, illegal activity and so on.

Now, if we get a situation here, if we look at the charge, the first thing the Crown has to prove is that there was a conspiracy between Kolalich and Begovic. Then, on the indictment as it stands, they have to show that there was a conspiracy between Kolalich and one of other divers persons. Those "divers persons" were Yeo, the Thai police, the federal police in Thailand and Detective Sergeant Weller. So, you have the situation there that the conspiracy - now, you can only prove the conspiracy as laid - and also they have to prove, which is an important factor here, that it was heroin. The only evidence of heroin was the fact that there was a conversation in relation to "gear" and the other evidence of heroin, which was necessary to the proof of the case, was the fact that Detective Sergeant Weller brought the heroin in and then part of that heroin was handed over to Chong and Chatchai who were the Thai police and that was handed over to Begovic.

TOOHEY J: Are you saying, Mr Papayanni, that absent that evidence, there was no evidence of any conspiracy to import heroin?

MR PAPAYANNI: No, I am not saying that at all. I am saying that there was evidence beforehand, as the Court of Criminal Appeal had said. Now, an accused is an entitled to a fair trial - - -

TOOHEY J: Evidence of what?

MR PAPAYANNI: Evidence of a conspiracy to import heroin beforehand. The accused is entitled to a fair trial on admissible evidence and the Crown or the Queen obtains a curial advantage by getting a whole lot of inadmissible evidence.

Now, if we look at what the police did in this case and look at what they did in Ridgeway's Case, the situation of Ridgeway and Lee: Ridgeway goes to Malaysia, speaks to Lee and as a result of that Lee, who is a police informer, gets the police to buy the heroin. In this case what happened was that Kolalich agrees with Begovic and Begovic goes to Malaysia and there Yeo puts him in touch with the police on 18 September and then, as a result of the conversation with the police, he is induced to buy the heroin. First of all he says he gets two kilograms and then eventually they say they wanted four. So then he buys the heroin. So, you have a similar situation in relation to that as in Ridgeway. If Ridgeway had been charged with conspiracy, according to the Court of Criminal Appeal, all the evidence would have been admissible.

That was never referred to in Ridgeway's Case when saying that he could be charged under State law. There was never any suggestion that he could be charged under Commonwealth law. So you get the situation here that on the indictment the persons who were guilty of illegal conduct were Yeo, who was party to the conspiracy; there was the Thai police who were guilty also of conspiracy in relation to that; there was Detective Sergeant Weller who was also a party to the conspiracy.

Now, the other offences that were committed were the importation by Detective Sergeant Weller. The Thai police and Yeo were accessories before the fact in relation to that and they could come under aid and abet, counsel and procure, which is 233B(d) and also knowingly concerned with the importation. So you have all the offences that the police had committed in relation to that. Both the police and Yeo had committed all those offences in relation to this matter.

McHUGH J: But what offences had they committed?

MR PAPAYANNI: Well, I have just pointed that out. Detective Sergeant Weller who brought in the heroin committed - - -

McHUGH J: What date did he bring it in?

MR PAPAYANNI: He brought it in on, I think, 24 September.

McHUGH J: I thought it was the 26th but - - -

MR PAPAYANNI: It might have been the 26th, yes.

McHUGH J: - - - there were all those conversations that were recorded and the earliest Ridgeway act you can point to is the actual importation.

MR PAPAYANNI: No, the earliest Ridgeway act is the conversation between Lee and Ridgeway in which Ridgeway asked Lee or made an arrangement with Lee, which could have been a conspiracy, to get the heroin. You had that same situation here.

McHUGH J: That is not a Ridgeway point. Nothing may have been done in furtherance of it. There may have been no illegal importation into Australia.

MR PAPAYANNI: Well, there was.

McHUGH J: I know there was, but supposing they arrested the accused on 24 September.

MR PAPAYANNI: The police would still have been guilty in relation to that because they would have been party to the conspiracy. Now, the conspiracy is proved by the overt acts of the conspirators.

TOOHEY J: Hold on a moment. You shift the focus of attention of the conspiracy, Mr Papayanni, to the applicant and those certain persons whom you have named but the indictment charges the applicant with conspiracy with Begovic and with others.

MR PAPAYANNI: Yes, but how do you prove it, that is the point, your Honour? You prove it by the overt acts and the overt acts of the persons - - -

TOOHEY J: Could I take you to page 49 of the application book where there are three matters the subject of comment by Chief Justice Gleeson. He says, first of all, that the trial judge:

was clearly correct when he held.....that there was a conspiracy to import heroin on foot, to which the appellant and Begovic were parties, well before 10 September 1989 - - -

MR PAPAYANNI: He did not exactly find that. He said there was evidence of it and that there was - - -

TOOHEY J: All right. Well, let us go on:

Second, even if the trial judge had been invited to exclude, and had excluded, the evidence of the illegal importation of heroin by Detective Sergeant Weller, there was abundant evidence of the conspiracy alleged in the indictment.

And, thirdly:

the evidence establishes that Begovic obtained the heroin in Chiang Mai quite independently of any assistance he and the appellant received from Yeo or the Thai or Australian police.

That takes it well out of Ridgeway, does it not?

MR PAPAYANNI: Yes, but Begovic met with the police on 18 September and they encouraged him to buy the heroin which was not bought until 21 or 22 September and then it was delivered to Chong and Chatchai, so the events there were similar as Justice Gaudron said in relation to it, it is not the question of who initiates it but the person who procures it, even though the person who initiated the action, there still is a procurement by the police of the importation.

GAUDRON J: No, of the offence.

MR PAPAYANNI: Of the offence.

GAUDRON J: But the offence charged here is conspiracy. There was no procurement of a conspiracy.

MR PAPAYANNI: The point is this: how do you prove a conspiracy? You prove it by the overt acts of the alleged conspirators. In this way it was proved not only the conversations before 10 September. In Ridgeway, of course, all evidence in connection with the importation which were the conversations, police surveillance, and if there had been any taps or listening devices, that would have been excluded also. In this particular case, all the evidence in relation to the importation was illegal.

Now, on the basis of Ireland's Case, that was illegal conduct by the police and by Yeo, and on that basis the court should have determined, in accordance with Bunning v Cross, whether that evidence should have been, in its discretion, excluded. Now, what the courts said is, "We will not bother to do that because it is not identified with a particular element of the offence." Now, in this case it is particular evidence that has been objected to, not the whole of the evidence and it does not matter whether there is evidence beforehand of a conspiracy or not.

TOOHEY J: Well, it does, if in fact the Court of Criminal Appeal takes the view which it did take, and I say that in relation to an application for special leave to appeal, that even if the evidence of the alleged "illegal importation should have been and had been excluded, there remained abundant evidence of the guilt of the appellant." That appears on page 51.

MR PAPAYANNI: That is not according to what the trial judge held, because if your Honour looks at page 6, your Honour will see there that the trial judge said:

In my view, there is evidence of a conspiracy existing prior to 10 September 1989 and quite clearly, in my view, the jury could infer that when the accused Kolalich spoke to the witness Yeo about some "gear" in Thailand, the jury could infer that that related to heroin.

Now, one of the essential elements of the offence was to show that what was going to be imported was heroin. In relation to that essential element, what the Crown relied upon was the importation by Detective Sergeant Weller of the heroin to show that it was heroin. It was analysed and shown to be heroin.

Now, if the situation had been different, that evidence was given to show beyond any doubt that what was spoken of as "gear" was, in fact, heroin. So, the evidence did, in that respect, as well as others, go to the question of what "gear" was and that was an essential element of the charge that heroin was the prohibited drug. So, you get the situation there that there was, in fact, an essential element and that in relation to particular evidence, it is not essential in any case that the essential element to the offence be necessary, otherwise if particular evidence was objected to, it would have to go to an acquittal rather than to a retrial.

In this case, if the evidence in relation to the conversations in relation to the importation had been excluded, the accused would have had a fair trial on evidence that was in fact admissible. In this way, he did not have a fair trial in the sense that all the evidence which went to show exactly what the substance was, was heroin, was in fact given by illegal conduct of the police. So, the situation is totally different to Ridgeway's Case and it means that if a person is charged with conspiracy, there is never any essential element in relation to the offence except the conspiracy itself.

Now, each person who joins a conspiracy becomes a conspirator. It does not matter whether he is party to it or not, and his acts, according to what the Crown has to show by the acts of Yeo and the police and Begovic and the applicant, in the first place by the overt acts that there was a conspiracy. That is laid down in Ahern, it is laid down in Tripodi and a number of cases. That is part of the proof. That is an essential element.

So, in the first place, all this evidence as to the illegal activity of the police and Yeo went to prove a conspiracy. Then you prove that Kolalich was a party to that conspiracy. The essential element of the charge is this evidence of the overt acts which goes to conspiracy. The next essential element is that it is heroin, and the essential element by the police bringing in the heroin went to that element of the offence. So, it comes directly within Ridgeway in any case. The Court of Criminal Appeal ignored those facts. That is my submission in relation to those matters.

TOOHEY J: We need not trouble you, Ms Fullerton.

Having regard to the evidence as to when, and the circumstances in which the conspiracy alleged against the applicant occurred and the way in which the trial was conducted, the Court is satisfied that there was no miscarriage of justice. The application for special leave to appeal is refused.

AT 3.00 PM THE MATTER WAS CONCLUDED