Regina v Bijkerk [2000] NSWCCA 122

Reported Decision : [2000] 111 A Crim R 443

New South Wales Court of Criminal Appeal

CITATION : Regina v Bijkerk [2000] NSWCCA 122 FILE NUMBER(S) : CCA 60294/99 HEARING DATE(S) : Friday 11 February 2000 JUDGMENT DATE : 14 April 2000

PARTIES : Regina v Roy Anthony Bijkerk JUDGMENT OF : Grove J at 1; Sully J at 35; Simpson J at 36

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 95/11/0542 LOWER COURT JUDICIAL Flannery DCJ OFFICER :

COUNSEL : G. Nicholson QC with B.W. Cross (Appellant) M. Ierace SC (Respondent/Crown) SOLICITORS : Peter Murphy (Appellant) Director of Public Prosecutions (Commonwealth) (Respondent) CATCHWORDS : Criminal Law and Procedure - Entrapment - Police Informant - Conspiracy - Actual Importation Intercepted - Correctness of Interlocutory Ruling in District Court LEGISLATION CITED : Crimes Act 1914 (Commonwealth) Ridgeway v The Queen 1995 184 CLR 19 R v Sloane 1990 49 A Crim R 270 Sherman v United States 356 US 369 R. Hsing 1992 25 NSWLR 685 CASES CITED: R v Dumas, Unreported CCA 20 November 1995 R v Karam 1995 83 A Crim R 416 R v Salem 1997 96 A Crim R 421 R v Coulstock 1998 99 A Crim R 143 R v Saleam 1999 NSWCCA 86 R v N 1999 NSWCCA 187 DECISION : Appeal Dismissed

IN THE COURT OF CRIMINAL APPEAL

60294/99

GROVE J SULLY J SIMPSON J

Friday 14 April 2000

REGINA v ROY ANTHONY BIJKERK

JUDGMENT

1 GROVE J : This is an appeal following conviction of the appellant by Flannery DCJ in the Sydney District Court on a count of conspiracy to import a commercial quantity of the narcotic drug cocaine. The offence was particularized to have been committed between 1 January and 28 September 1993. 2 Despite a plea of guilty having been entered in the District Court, the appeal challenges conviction. Some background needs to be sketched. The appellant and a co-accused, Richards were listed to be identically indicted on 19 April 1999. Both the then accused objected to the admissibility of intended Crown evidence substantially in reliance upon principles asserted to have been articulated in judgments by the High Court in Ridgeway v The Queen 1995 184 CLR 19. Flannery DCJ embarked upon a voir dire hearing. The material placed before him was voluminous and included transcripts from inconclusive hearings. At an earlier trial, presided over by Viney DCJ, a jury failed to agree. Two further trials had commenced, presided over by Christie DCJ, but both were aborted before verdict. 3 Both Viney DCJ and Christie DCJ had conducted similar voir dire hearings concerning the admissibility of the Crown evidence and had ruled in favour of admissibility. On 11 May 1999 Flannery DCJ ruled that the proposed evidence would be admitted and indicated that he would publish his reasons at a later date. He did so on 27 July. However, after announcement of the ruling, the appellant was re-indicted and pleaded guilty. Richards pleaded not guilty and his trial proceeded, culminating in a verdict of guilty being returned by the jury on 7 June. On 24 November 1999, his Honour imposed sentences of twelve years imprisonment (with a minimum term of eight years) on Richards and six and a half years imprisonment (a minimum term of four years) on the appellant. 4 The submissions on behalf of the appellant must be examined in the context of facts. 5 In the course of employment for a corporation which involved some customs agency, one Modica discovered that the Australian Customs utilized a stamp which, if impressed on an invoice prior to goods being shipped, at least from the United States, signalled that the goods had been inspected at the point of export and no further inspection was required in Australia. Modica forged such a stamp. Importing contraband by means of its use was referred to as Modica's "scheme". 6 In February 1992 Modica was arrested in connection with a planned importation of a large quantity of heroin coming from Asia. At interview he mentioned to police that a person named Cluff and an associate of his, whom Modica knew as Warren, were interested in utilizing his scheme. The police suspected, correctly as it turned out, that Warren was in fact, Warren Richards. Police information was that Richards was an active criminal in a wide range of offences. Cluff's interest in the scheme was no doubt whetted by his participation in an unsuccessful attempt in 1990 to import cocaine from the United States which had been foiled by U.S. authorities which had intercepted the narcotic shipment. 7 Police were interested in targeting Cluff and Richards as likely offenders and determined to utilize Modica in that regard. Necessary arrangements were made for recording conversations between Modica and Cluff. There were intermittent contacts. In June 1993 a meeting took place at which Richards introduced Cluff to the appellant who enquired at that meeting whether Modica could organize unimpeded import of cocaine from South America, (where it could be purchased more cheaply than in the United States). Cluff replied that he thought not. 8 Some considerable time later a further meeting took place, this time between Cluff, Modica and the appellant arising out of which it was agreed to proceed with a plan to import four kilograms of cocaine from the United States. The appellant travelled twice to that country in connection with this plan. No narcotic was obtained on the first trip in July 1993 and the appellant engaged in a "dummy run", obviously testing the efficacy of the scheme. He obtained and despatched a pistol to Australia through a freight forwarding office in America. Authorities intervened by unpacking and photographing the weapon, altering its mechanism so as to render it incapable of discharging a bullet and then restoring the package into the transit arranged by the appellant (but under continuing surveillance). 9 On the second trip in September 1993 the appellant purchased what amounted to 3.2 kilograms of pure cocaine and deposited it within two cartons of coffee granules which he lodged for shipment with a freight forwarder. The parcels bore invoices which the appellant had received from Modica. The consignment was imported into Australia accordingly but intercepted and substitution made, after which delivery took place. The appellant was arrested at the place where delivery was made. 10 I shall refer to other facts in connection with particular submissions. 11 A notice of appeal dated 2 June 1999 (that is, prior to delivery of reasons by Flannery DCJ on 27 July) is with the papers although there is no indication on the face of the document as to when it was filed. Some grounds of appeal were expressed in that document but written submissions on behalf of the appellant filed 1 February 2000 enumerated propositions "concerning each of which it is suggested his Honour erred in a material respect". These were treated by the Crown as grounds for the purposes of its written response. It is convenient to set out those paragraphs and I will also refer to them as grounds. "1. His Honour erred in the exercise of his discretion in his use of the 'unwary innocent' test as a basis, or indeed the basis, for determining that this case did not come within category one of the procurement categories identified in the leading judgment in Ridgeway. 2. His Honour erred in finding the illegal police conduct did not come within the second category of Ridgeway (p.14.7). All of the evidence should have been excluded applying the principles of Ridgeway and s.138 of the Evidence Act. Summaries of established and suspected illegal and improper conduct are set out in schedule A and B hereto respectively. 3. His Honour took into account an irrelevant consideration, being that the actual importation of part of the cocaine into Australia by the Australian Federal Police did not constitute an element of the offence with which Bijkerk was charged. The principles of Ridgeway are not excluded from consideration for that reason. It is also noted that police imported the whole, not part, of the drugs concerned. 4. Likewise, the introduction of s.15X of the Crimes Act (C'th) had no bearing on the conspiracy charge. Evidence of the importation by Australian Federal Police officers was relied upon by the appellant as evidence of the illegality of the conduct of police as co-conspirators. It was not sought to exclude the importation from evidence but rather to rely upon it for the purpose of the argument. 5. The degree of procurement in this case is greater than in Ridgeway inasmuch as it was the police through their agent Modica who instigated the offence, not Bijkerk. In Ridgeway it was Ridgeway who initiated the offence by contacting and pursuing Lee. His Honour gave no apparent recognition to that situation. 6. One of the differences relied upon by his Honour in distinguishing Ridgeway was that in Bijkerk's case, the offence was not committed by persons who would not otherwise be unlikely to commit it. His Honour seems to have not appreciated that Ridgeway initiated the importation of the drugs. Ridgeway cannot be portrayed as an 'unwary innocent' whatever the relevance of such a finding might be. 7. His Honour erred in applying the principle that 'Courts should be cautious about impugning imaginative techniques designed to combat the resourceful apparatus of perpetrations of serious crime' to the facts of this case. 8. His Honour erred in ruling that even if the facts of this matter came within the first category of Ridgeway, he would still allow the evidence in on the basis of 'competing desirabilities'. This was a case in which a proper exercise of the public policy discretion in accordance with Ridgeway and s.138 of the Evidence Act required exclusion of the evidence. 9. His Honour erred in finding that the appellant was not an 'unwary innocent' to the extent that this was a relevant or proper consideration in the case. There is no sufficient evidentiary basis for the making of such a finding." 12 The argument on behalf of the appellant was not developed by sequential attention to these grounds but it is convenient to use them for reference and to deal first with grounds 1 and 9 which are topically associated. 13 An observation was made by Gleeson CJ in R v Sloane 1990 49 A Crim R 270 concerning the sale of drugs to an undercover police officer that such specific sale would never have taken place but for the activity of the relevant police officer, but that that was not sufficient to constitute a case of entrapment. His Honour added: "To use the language of an American case on the subject, 'a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal' Sherman v The United States 356 US 369".