New South Wales District Court CITATION: Regina v John Ibrahim [2006] NSWDC 6 HEARING DATE(S): 20th February 2006 - 23 February 2006 JUDGMENT DATE: 31 March 2006 JUDGMENT OF: Finnane QC DCJ DECISION: There was impropriety of such a type that the evidence should be excluded. CATCHWORDS: Evidence - Admissibility - Improperly obtained evidence - Controlled Operations - Impropriety - Illegally obtained evidence which could have been obtained legally - Listening devices - Recorded conversations LEGISLATION CITED: Evidence Act 1995 Law Enforement (Controlled Operations) Act 1997 CASES CITED: Ridgeway v The Queen (1995) 184 CLR 19 Robinson v Woolworths Limited [2005] NSWCCA 426 PARTIES: Regina John Ibrahim FILE NUMBER(S): 05/11/0361 COUNSEL: Ms S Bowers (Crown) Ms E Fullerton SC (Accused) SOLICITORS: C Tobler (Crown) Galloways Solicitors & Attorneys (Accused) JUDGMENT Introduction. 1 The interest to maintaining confidence in the proper administration of justice requires from time to time that evidence of criminal activities not be permitted to be given in court. In some cases, and this is one, the exclusion of evidence could mean that the Crown has no case to present. 2 The New South Wales Parliament has provided by legislation a means by which police and other law enforcement authorities may obtain consent to engage in operations, called "controlled operations", which involve illegal conduct on the part of the participants. The clear purpose of that legislation is to provide a means of conducting police operations within the law, although without that authority, police conduct would be unlawful. 3 What the police and their agent, Roy Malouf, did in this case was, in my opinion, improper and unlawful. It could have been authorised under the legislation but no application was made. For reasons, which I give below in my opinion, the conduct was such, that in accordance with the principles laid down in Ridgeway's case, the evidence should be excluded. The result will be that the Crown will not have a case against the accused. Background: The facts leading To This Case. 4 On the 14th of July 2003 a number of men led by Michael Ibrahim went to the Guildford area, to the home of Roy Malouf, Richard Malouf and Pierre Malouf. Pierre Malouf was the father of Richard and Roy Malouf. During the course of the day, one of the group of men with Michael Ibrahim attacked Roy Malouf with a baseball bat and broke one of his legs. An ambulance came and took Roy Malouf to hospital. The Ibrahim gang apparently left the scene, but returned later, and when Roy Malouf was away from the house, shots were fired by the group led by Michael Ibrahim and these injured Pierre Malouf and Richard Malouf. For present purposes, it does not matter who fired the shots, nor does it matter who attacked Roy Malouf. 5 Detectives from the New South Wales police force commenced to investigate the bashing and shootings of the Malouf family, but were unable to get their cooperation. Police from Granville obtained a search warrant to search the Malouf home. In that home they found items, which suggested that members of the Malouf family were engaged in theft and the possession of firearms. Roy Malouf gave evidence to me and was questioned about what had happened. I have no doubt that he, his father and his brother, were engaged in criminal activities and that those who attacked them were engaged in similar activities. The Malouf's and the Ibrahim's knew one another, apparently from the time that Michael Ibrahim had been at school with Roy Malouf. 6 The investigating detectives eventually persuaded Roy Malouf, Richard Malouf and Pierre Malouf to give statements. Roy Malouf commenced to give a statement on the 10th of September 2003 and finished it on the 17th September 2003 Richard Malouf gave a statement on the 25th of September 2003. Pierre Malouf commenced a statement on the 13th of October 2003 and finished it on the 20th of October 2003. 7 These statements were produced after Sergeant Tzinberg obtained from the New South Wales Crime Commission a summons requiring Roy Malouf to attend a Crime Commission hearing on the 12th of September 2003. This summons was served on Malouf on the fourth of September 2003, the day before he was to meet Sam Ibrahim for the purpose of having a conversation with him in which he was fitted with a listening device, and with a view to finding out if Sam Ibrahim would make threats against the Malouf family. 8 There has been considerable debate during these proceedings about the purpose that lay behind the getting of the Crime Commission summons. The evidence of the police witnesses was that the summons was obtained for the purpose of persuading Roy Malouf that if he and his family members did not make statements, then he would have to attend the Crime Commission, under compulsion and give evidence. Because each of Roy Malouf, Pierre Malouf and Richard Malouf made statements, the Crime Commission hearing was cancelled. 9 I have given a great deal of thought to this matter because it seemed to me that the primary purpose of getting the summons may have been something other than the holding of an inquiry by the Crime Commission. However, I'm not able to come to a firm conclusion that the police sought the summons for some collateral purpose, because, having gone over the transcript a number of times, I have come to the conclusion that the police were motivated by a desire to get Roy Malouf to give evidence, either by way of a statement to them or to a Crime Commission hearing. I make that finding even though I am not entirely satisfied that Mr Tzinberg gave truthful evidence about this matter. 10 That does not dispose entirely of the matter, because the police told Roy Malouf to take the summons to the meetings with Sam Ibrahim and John Ibrahim. They told Malouf to tell Sam Ibrahim and John Ibrahim that the Crime Commission had summoned Malouf. The other pretence that Malouf was to engage in was that he just wanted to discuss things to see if the two families could sort out their differences. The whole purpose of the meetings, in my opinion, was to see if either of the Ibrahims would make threats. According to Malouf, and to Maroun Charbel, John Ibrahim had made previous threats. In my opinion, the police were entitled to give some credence to these claims. After all, there had been a bashing and there had been shots fired. 11 Clearly enough, a Crime Commission summons should be used only for the purpose for which it was issued, namely to require the recipient of it to attend the hearing of the Crime Commission, and the police should not have instructed Malouf to take a Crime Commission summons to the meetings with the Ibrahim's. However he did not do so but he did tell both of the Maloufs that he had received the summons. He did not tell John Ibrahim that the hearing had been cancelled, nor that the summons was spent. 12 When the police arranged for Malouf to attend the meetings with the Ibrahims, in my opinion, Malouf became their agent and it was their duty to ensure that he behaved properly and lawfully. At the first meeting, Sam Ibrahim, he made it quite plain that he would say and do what every felt like saying and doing. The way in which he behaved at that interview should have caused the police to do something other than send him in to speak to John Ibrahim, with no effective controls imposed on what he might say or do. 13 The question also arose as to whether the police ever turned their minds to the question of getting authority to conduct a controlled operation under the terms of the Law Enforcement (Controlled Operations) Act 1997. That Act, enacted after Ridgeway's case, provides a method for law enforcement officers to engage in criminal conduct for the purpose of catching criminals and provided the persons authorised act within the terms of their authority they do not commit a criminal offence. The Act provides for applications to a senior officer. Those applications may be accepted or refused (See section 6). I am satisfied that no serious consideration was given to such an application, and certainly nothing was discussed with Inspector Ryan, who was the officer who would have had to authorise the application being made to the Deputy Commissioner of Police. 14 The police claimed that they told him Malouf to tell the truth when he met John Ibrahim, not to say too much and to let Ibrahim do the talking. I am unable to conclude with certainty that they did not give him these instructions. At the same time, they knew that during the course of the discussions, he would certainly tell some lies. His reason for being at the meeting was itself a lie, his claims about police pressure were a lie and his claims about the Crime Commission summons were a lie. They had every reason to believe that he would tell other lies during the course of the meeting, since his general character as a criminal would give them that reason. The reason that the police wanted this meeting was that they wanted evidence against John Ibrahim in the form of threats against the Malouf family. I am satisfied that they sent Malouf to these meetings for the purpose of getting evidence of threats by Ibrahim against the Maloufs and that they knew from the meeting with Sam Ibrahim that Malouf would tell lies and would try to inveigle John Ibrahim to make a threat. 15 During the course of the discussion, Malouf importuned John Ibrahim to make threats by persistently asking him what he would do and begging him to do something to sort things out. He claimed that he did not wish to help the police, but he was being pressured to do so. By making continual requests and frequent flattering comments, he managed to persuade John Ibrahim to say things, which, on the Crown's submission, could be regarded as implied threats to interfere with witnesses. If the words spoken by John Ibrahim amounted to a criminal offence, the solicitation of that offence made Malouf someone who was aiding and abetting, counselling and procuring it. What follows from these findings? 16 Section 138 of the Evidence Act 1995 provides that evidence that was obtained improperly or in contravention of an Australian law or in the consequence of an impropriety or a contravention of an Australian law is not to be admitted into evidence, unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. 17 It has been argued on behalf of Mr Ibrahim that the police acted improperly in obtaining the Crime Commission summons and in encouraging Malouf to engage in a conversation with John Ibrahim in which the aim was to get him to incriminate himself by making a threat or threats against members of the Malouf family. It was argued, also that Malouf himself engaged in criminal conduct, with the support of the police. Finally, it was argued that the conversation itself contained no threats that could form the basis of the indictment. 18 In Ridgeway v the Queen (1995 184 CLR 19) the High Court of Australia laid down some principles to be applied in cases where police directly involve themselves in criminal activities for the purposes of catching criminals and procure the crime to be committed; and where a police officer, intentionally brings about the opportunity for the commission of an offence by conduct in which he does not actually commit a criminal offence, but which is quite inconsistent with the minimum standards, which a society such as ours should require of those entrusted with powers of law enforcement. 19 These principles, properly applied, entitle the court to exclude from the trial evidence, which falls within either category. However, there is clearly a difference between a case in which a police officer actually commits a criminal offence and a case where a police officer makes it possible for another to commit a criminal offence. 20 Ridgeway's case concerned police officers actually involving themselves illegally in importing heroin into Australia, though they did this for the purpose of arresting criminals, who were also involved in this importation. The court held as a matter of public policy, that the evidence should be excluded and stayed any further proceedings against the accused. 21 The majority decision recognised that effective investigation by police of some types of criminal activity "[m] ay necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence" (Para 25). 22 McHugh J. in his judgment at Para 33 (in dissent) pointed out the impossibility of formulating a rule to cover all cases where an accused person seeks to stay a prosecution on the ground that the offence was induced by or was the result of the conduct of law enforcement authorities; "[t] he ultimate question must always be whether the administration of justice will be brought into disrepute, because the processes of the court are being used to prosecute an offence, that was artificially created by the misconduct of law enforcement authorities". 23 His Honour considered that four matters were required to be considered before this question could be determined. Those four matters were: 1. Whether conduct of the law enforcement authorities induced the offence. 2. Whether, in proffering the inducement, the authorities had reasonable grounds for suspecting that the accused was likely to commit the particular offence, or one that was similar to that offence or were acting in the course of a bona fide investigation of offences of a kind similar to that with which the accused has been charged. 3. Whether, prior to the inducement, the accused had the intention of committing the offence or a similar offence if an opportunity arose. 4. Whether the offence was induced as a result of persistent importunity, threats, deceit, offers of rewards or other inducements that would not ordinarily be associated with the commission of the offence or a similar offence. 24 Although McHugh J dissented in the result, the four matters he refers to are consistent with the reasons of the majority. 25 In Robinson v Woolworths Ltd. [2005] NSWCCA 426, the Court of Criminal Appeal considered that the Ridgeway principles applied to cases to be considered under section 138 of the Evidence Act 1995. 26 The case involved two girls, who were under the age of 18, being retained by health authorities to approach an employee of Woolworths and ask for cigarettes. The purpose of this was to see if the employee would seek proof of age. In one sense, the girls were seeking to trap the employee. However, the employee merely had to ask for proof of age. No false representation was being made. 27 Unsurprisingly, the Court of Criminal Appeal did not find that impropriety had been established on the part of the health authorities and concluded that there was no basis for excluding the evidence. There was no unlawfulness on the part of the health authorities and whilst the request of the girls provided an opportunity for the commission of the offence of supplying cigarettes to a minor, the request did not amount to any form of pressure, persuasion or manipulation. 28 The Court held that an onus on lay on the party resisting admission of the evidence to establish impropriety. 29 In the present case, for reasons already given by me, I have concluded that none of the police made any application for permission to have this conference conducted as a controlled operation pursuant to the relevant legislation. In fact, in my opinion, no serious thought was given to treating this as a controlled operation. That is significant, because the legislation under which such operations are conducted, provides a procedure where permission has to be sought from a very senior officer who is given the benefit of legal advice. If he or she, having considered the proposal, does not think it should be undertaken, then permission is denied. If permission is granted, then provided the operation is conducted within the terms of the permission, those police officers and/or civilians who are involved in the operation do not commit any offence. No doubt the Parliament could envisage situations where the senior officer would not consider it prudent, or appropriate to engage in such an operation. 30 The intention of Parliament must be supported by the courts. If Parliament provides a method by which police can engage in unlawful activities, and they choose not to employ that method, then any Court considering whether the evidence obtained during those unlawful activities should be admitted, is entitled to take into account the fact that no application was made or obtained to carry out those activities in a controlled operation. 31 I have found that there was no impropriety in obtaining a Crime Commission summons, but I have also found that the police who briefed Malouf, encouraged him to speak about the crime commission summons as if it were still effective, to make false claims that the police were putting pressure on him and to make a false claim that the reason for the meeting were so that the two families could sort out differences. The police had every reason to believe that he would tell additional lies and that he would importune John Ibrahim to make a threat. They were encouraging a known criminal to try and trap John Ibrahim into making a threat. They chose to adopt this approach, probably because the evidence of Malouf and of Maroun Charbel, of threats made previously, would be worthless. By encouraging Malouf to aid and abet Ibrahim to make a threat, they were in fact acting improperly. They could have sought authority to do this as a controlled operation. They did not do so. 32 Furthermore, they were directly taking action to cause a crime to be committed, in circumstances where no crime could be committed, unless this meeting between Malouf and Ibrahim were arranged. I have already found that Malouf sought the meeting. Ibrahim was not seeking to meet Malouf for the purpose of making a threat; rather, he was responding to repeated requests by Malouf for a meeting to discuss relationships between the Malouf and Ibrahim families. In my opinion, if the meeting had not been held, no threats (assuming what was said, could be regarded as threats) would have been made at that time. 33 When regard is had to the tests specified by McHugh J. (supra), I draw the following conclusions: 1. The conduct of the police induced the offence (assuming that the words spoken could constitute an offence). 2. The police had reason to suppose that if Malouf were persistent enough, Ibrahim would make a threat. 3. There is no evidence that before the importunities of Malouf, John Ibrahim had any intention of committing the offence charged in the indictment or any similar offence if an opportunity arose. 4. The offence (if one was committed) was induced as a result of persistent importunity, deceit and inducements that would not ordinarily be associated with the commission of the offence or a similar offence. 34 I must then apply the provisions of section 138 of the Evidence Act 1995. 35 The findings, which I have made are that the evidence was obtained improperly and in contravention of an Australian law, namely the Law Enforcement (Controlled Operations) Act 1997. 36 The evidence is obviously important since without this evidence, there is no case against the accused. The offence is a serious one, but is not to be equated to offences such as murder or sexual intercourse without consent. I have already found, that but for the arranging of the meeting of the second of December 2003, this offence could not have been committed on that day. 37 In my opinion, there would not have been any difficulty in obtaining the evidence without impropriety or contravention of an Australian law, since if the controlled operation had been authorised, the evidence could have been obtained legally. 38 I'm also of the opinion that police officers must be discouraged from adopting methods of investigation, which are likely to lead to illegality, when a perfectly legal method of engaging in those methods of investigation is provided by law. 39 For these reasons, I'm of the opinion that the accused, John Ibrahim, has satisfied the onus of establishing that the evidence should be excluded and I exclude it. 40 The only other matter upon which I should make some comment is the question whether what was said in the conversation of the 2 December 2003 could amount to the offence charged. I had some considerable difficulty in finding what it was that could be regarded as threats. Clearly enough, any case would have to be run on the basis that the words spoken, in the context in which they were spoken, were threats against members of the Malouf family and were aimed at intimidating them from giving evidence. Whilst I think that case is not very strong, if I were wrong and it was held that the evidence of this conversation could be given before the jury, it would be a matter for the jury as to whether the case was made out. I am unable to say that the conversation could not provide evidence, as alleged by the Crown. Conclusions: 41 There was impropriety of such a type that the evidence should be excluded. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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