R v Swift[1999] QCA 94

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

CA No 295 of 1998

CA No 296 of 1998

Brisbane

R v Swift

THE QUEEN

v

JOHN EDWARD SWIFT

(Applicant) Appellant

Pincus JA

Davies JA

Thomas JA

Judgment delivered 26 March 1999

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 26/03/1999

1. The appellant appeals against his convictions on one count of official corruption and three of perjury and seeks leave to appeal against the sentences imposed for those offences. Both the appeal and the application for leave to appeal are in effect, in respect of official corruption. If the appeal against the first conviction succeeds, so will those in respect of the perjury convictions; the evidence referred to below is as relevant to those appeals as it is to the official corruption appeal. And the sentences for the perjury offences were made concurrent with a longer sentence for official corruption.

2. The appellant was convicted under s 121(1)(a) of the Criminal Code that on 16 June 1996 at the Gold Coast in the State of Queensland, being a person employed in the public service as a detective sergeant of police, in which capacity he was concerned in the prosecution of offenders, he corruptly agreed to receive a benefit, namely $3,000 for himself, on account of his afterwards doing an act with a view to the protection of an intended offender from detection, namely informing a man called Evans of police interest in or investigation of him in respect of suspected criminal offending.

3. The appeal is, in effect, against the decision of a trial judge to admit evidence of what appears to be such an agreement by the appellant, then a serving police officer. If his Honour ought to have excluded the evidence the appeal must succeed. The application for exclusion of the evidence took place at the commencement of the trial on the basis of facts which were agreed or at least not disputed by the parties.

4. The evidence sought to be excluded consisted of the oral evidence of a Criminal Justice Commission operative, Evans, and a secretly recorded tape recording of the conversation between him and the appellant alleged to constitute the agreement. The main basis for the argument that the learned trial judge was wrong in refusing to exclude this evidence was that the agreement, and consequently the evidence, was procured by the illegal conduct of the Criminal Justice Commission or Evans, which illegality gave rise to a discretion to exclude the evidence, and that that discretion should have been exercised to exclude the evidence because there was no evidence that the appellant had, prior to that procurement, done anything unlawful.

5. The undisputed facts included the following. Evans knew of a drug dealer on the Gold Coast, McKnight, who had previously claimed to him that she enjoyed corrupt police protection. Upon instructions from the Criminal Justice Commission Evans pretended to McKnight that he was involved in a drug operation and wanted similar protection from police. McKnight then put him in contact with a person called Zanetti who, in turn, brought in a former police officer Spidalieri. After a number of meetings with these persons Spidalieri then took Evans, on 16 June 1996 to meet the appellant, then a detective sergeant of police at the Gold Coast, in a hotel on the Gold Coast.

6. There is no evidence that the appellant was the person from whom McKnight had claimed to have received protection. On the other hand, as the respondent's counsel put it, the trail led from McKnight to the appellant who, it is plain from the recording of the conversation on 16 June 1996, was aware, when the parties met, that the purpose of the meeting was to make an agreement of the kind alleged and, it may be reasonably inferred, was prepared to make such an agreement.

7. From the transcript of the recording the conclusion was plainly open that at the meeting on 16 June the appellant agreed to provide protection to Evans for the latter's drug activities in consideration of payment of $3,000. The protection was to include advice to Evans, when Evans was about to engage in his activities, as to whether he was likely to be in danger from any police action. It was agreed that Evans could phone the appellant 24 hours before engaging in his drug dealing activities and that the appellant would warn him by indicating whether it was fine or sunny or cloudy or that he should prepare to get a thunderstorm.

8. On 28 June 1996 Evans rang the appellant. The transcript of the recording of this conversation, which was not disputed, records that Evans said that he was "going to be tied up over the weekend" and asked "what's the weather forecast?" The appellant replied that it was "pretty good". There was some further conversation and then Evans asked again "But the weather's looking fine?" to which the appellant replied "Yeah mate. Yeah." and then added "The forecast is fine, yeah". The conclusion was plainly open that, in saying this, the appellant thought he was performing the agreement of 16 June.

9. Before this Court the conduct of law enforcement officers in this case was said to be unlawful for three reasons. The first, which had not been relied on below, was that Evans' conduct was beyond the powers of the Criminal Justice Commission under the Criminal Justice Act 1989, those powers being relevantly limited to a case where there is reason to suspect that a known person has engaged in official misconduct. That submission is based on sections of the Criminal Justice Act which define the responsibilities of the Criminal Justice Commission and the functions of its Official Misconduct Division.

10. The responsibilities of the former are defined to include "undertaking intelligence activities to support its responsibilities in relation to official misconduct or alleged or suspected misconduct by members of the police service" and "in discharge of such functions in the administration of criminal justice as, in the commission's opinion, are not appropriate to be discharged, or cannot be effectively discharged, by the police service ... undertaking ... investigation of official misconduct in units of public administration".^[1]  A unit of public administration is defined to include the police service.^[2]

11. The functions of the Official Misconduct Division are defined to include investigating cases of "alleged or suspected misconduct by members of the police service ... that come to its notice from any source, including by complaint or information from an anonymous source".^[3]

12. First it was submitted that none of these provisions empowers the Criminal Justice Commission or its Official Misconduct Division to carry out an investigation of suspected misconduct unless there is a suspicion that a known person has engaged in official misconduct. It therefore did not apply to this case, the appellant not being under suspicion of having engaged in corrupt activities before the meeting of 16 June, notwithstanding the existence of a reasonable suspicion that a member or members of the police force at the Gold Coast, who could not be identified, had provided protection to a drug dealer. In our view that is too narrow a construction of the provisions referred to. The phrase "suspected misconduct by members of the police service" is capable of including, and should be construed so as to include a reasonable suspicion of misconduct by one or more members of the police service notwithstanding that no specific police officer can be identified as the subject of that suspicion and the phrase "investigation of official misconduct" should be construed to include the investigation of any such suspicion.

13. Secondly it was argued that these provisions did not authorize the instigation of misconduct by a member of the police service notwithstanding that that may be done in the course of and for the purposes of investigating suspected misconduct by members of the police service.  Put in such wide a form the argument must be rejected;  there is nothing expressed or implied in the Act which would require such a construction.  However it must be accepted that it would not authorise any such instigation if it were otherwise unlawful;  in other words it would not authorise an unlawful act, which would require unmistakably clear words.^[4]  It is necessary therefore to turn to the second and third reasons advanced for the contention that the conduct of officers, including and especially Evans, was unlawful.

14. It was submitted that Evans acted unlawfully in making the offer which he made to the appellant on 16 June on two other bases; that he committed an offence against s 121(1)(b) which proscribes corruptly offering to confer upon any person any property or benefit of any kind on account of any act or omission on the part of the person employed in the public service; and that he committed an offence under s 121(1)(a) by virtue of s 7. In order to consider these submissions it is necessary to set out the provisions of s 121(1):

121.(1)Any person who -

1. being a justice not acting judicially, or being a person employed in the public service in any capacity not judicial for the prosecution or detention or punishment of offenders, corruptly asks, receives, or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself, herself or any other person, on account of anything already done or omitted to be done, or to be afterwards done or omitted to be done, by the person, with a view to corrupt or improper interference with the due administration of justice, or the procurement or facilitation of the commission of any offence, or the protection of any offender or intending offender from detection or punishment; or
2. corruptly gives, confers, or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, upon, or for, any such person, or to, upon, or for, any other person, any property or benefit of any kind, on account of any such act or omission on the part of the justice or other person so employed;

is guilty of a crime, and is liable to imprisonment for 14 years, and to be fined at the discretion of the court."

15. The first of the above arguments depends on the construction of s 121(1)(b) and its application to the facts of this case.  That provision relevantly envisaged an offer of money by Evans to the appellant "on account of any such act or omission" on the part of the appellant, "such act or omission" referring to "anything already done or omitted to be done, or to be afterwards done or omitted to be done by the person" in subs (1)(a).  That act, which was to be afterwards done by the appellant, was the protection of drug activities of Evans.  That is the way in which the charge against the appellant was framed.  If that is correct then, for Evans to be liable under subs 1(b), his offer to pay money to the appellant must have been on account of the protection by the appellant of drug activities.  If "on account of" means "for"^[5] then plainly Evans did not make his offer to the appellant for the protection of any drug activities, though he did make it for an agreement by the appellant to provide that protection.  But it is, in our view, arguable that unless the former was the case, Evans was not liable under s 121(1)(b).

16. A similar question arose in R v Smith^[6] in which the facts were similar to the present and in which a person in Evans' position was held to have been rightly convicted.  He admitted making an offer of a gift to the mayor of the local authority but contended that it was not a genuine offer but was made for the purpose of exposing corruption which he, the appellant, thought existed at the time;  that if the mayor had accepted the offer he would then have exposed him, and that he did not in fact want any favour to be shown to him.  The legislation under which he was convicted proscribed any offer of a gift "as an inducement to or reward for or otherwise on account of" an act or omission.  The appellant was convicted of offering a gift as an inducement to the mayor to use his influence.  The decision in that case turned on the meaning of the word "corruptly";^[7]  the court holding that it was sufficient for that purpose that the appellant intended to induce the mayor's agreement to the transaction.  The distinction referred to in the previous paragraphs was not adverted to but it may be that an offer could be made as an inducement to a person to use his influence notwithstanding that the offeror intended to expose the offeree as soon as the latter accepted the offer, the inducement being evidenced by that acceptance.

17. For reasons to which we shall refer later we would be reluctant to decide this question without further argument and we do not think it necessary to do so. We turn now to the second of these arguments which depend on the application of s 7 to the offences under s 121(1).

18. These are counterpart offences in this sense;  that in par (a) is an offence by the public servant who amongst other things agrees to receive money on account of his afterwards doing some corrupt act and that in par (b) is an offence by a person who offers such money on account of the doing of such act.  They appear to state comprehensively the criminal liability of persons in those respective capacities and the others which are specified;  for example, par (b) appears to state comprehensively the criminal liability of any person who offers, gives, confers, procures or promises a bribe to a public servant for an act or omission of the latter.  Section 7, if applied literally to s 121, would, in every case in which there is an offence under par (a), make an offender under par (b) also liable under par (a).  Whilst it must be accepted that there are cases in which one act or omission may constitute more than one offence, it may be doubted whether that is the legislative intention here or whether, on the other hand, reading the Code as a whole, the intention was that par (b) should comprehensively state the liability of the giver or procurer or intended giver or procurer of a bribe and par (a) should likewise state the liability of the asker or receiver of such bribe.^[8]

19. The respondent to this appeal conceded illegality on one or other, or perhaps both of these bases, a concession which was encouraged by this Court. Consequently those questions were not fully argued. We would be reluctant to decide them in the absence of full argument. However, in the circumstances of this case, we find it unnecessary to do so for it is clear in our view that, even if Evans' conduct was unlawful, the learned trial judge was nevertheless correct in admitting this evidence.

20. We should add that it is not entirely clear how his Honour dealt with this question; whether he concluded that there was no illegality or whether, notwithstanding his preference for the view that the actions of the authorities did not procure the commission of the offence, he nevertheless assumed that they did but exercised his discretion in favour of admitting the evidence. His reference to "balance" and "strong preponderance in favour of admitting the evidence" suggests the latter. In the end nothing turns on this because of the conclusion which we reach that, even if this Court exercised the discretion afresh, it should be exercised in favour of admission of the evidence.

21. It was submitted by the appellant that, if there was no illegality by Evans or the Criminal Justice Commission which enlivened the discretion to exclude the evidence of the agreement, then there was impropriety by Evans which did so. But as we are prepared to assume, for the purpose of this appeal, that there was illegal conduct by Evans which enlivened the exercise of that discretion it is unnecessary to consider that alternative argument.

22. The circumstances relevant to the exercise of that discretion have already been referred to.  The Commission had a suspicion on reasonable grounds that some member or members of the Gold Coast police was or were providing protection to a drug dealer there called McKnight.  Evans, posing as a drug dealer told McKnight that he wanted similar police protection.  McKnight put Evans in contact with a person called Zanetti who, in turn, put him in touch with a former police officer Spidalieri who, in turn, introduced Evans to the appellant.  It was reasonable to infer from the recorded conversation of the meeting on 16 June 1996 that, by the time of that meeting, the appellant believed Evans to be a drug dealer who was prepared to offer him money for police protection and was willing to enter into such an agreement.  On the assumption that the making of that offer by Evans was an offence, it is the application to these circumstances of the principles stated in Ridgeway v The Queen^[9] which determines whether the learned primary judge was wrong in law in refusing to exclude evidence of the agreement made on 16 June 1996;  or whether, if he concluded that, there being no illegality, the exercise of the discretion did not arise, the discretion should have been exercised to exclude the evidence.

23. In Ridgeway the joint judgment of Mason CJ, Deane and Dawson JJ makes the point that where a course of unlawful conduct on the part of the police has procured both the commission of the offence and evidence of it, there will be little practical significance in the distinction between an exclusion of that particular evidence on the ground that it was procured by the illegal conduct and the exclusion of all evidence on the ground that the commission of the offence was itself procured by that conduct if the only evidence against the accused is that which was unlawfully procured.^[10]  This is such a case.  Both the commission of the offence and the evidence of it were procured by Evans seeking the appellant and making what may be assumed to be an unlawful offer to him.

24. Having concluded that a trial judge possesses a discretion to exclude, on public policy grounds, evidence of an offence or of an element of an offence in circumstances where its commission has been brought about by unlawful conduct on the part of law enforcement officers, the joint judgment went on to consider two distinct but possibly overlapping categories of case in which the exercise of discretion may arise.  The first, they said, consisted of cases in which the police conduct had induced an accused person to commit the offence which he or she has committed.  In that category of case, they said, the public interest in the conviction and punishment of those guilty of crime is likely to prevail over other considerations except in what they hoped would be the rare and exceptional case where the illegality or impropriety of police conduct was grave and either so calculated or so entrenched that it was clear that considerations of public policy relating to the administration of criminal justice required exclusion of the evidence.  The other category of case, they said, was where illegal police conduct was itself the principal offence to which the charged offence was ancillary or created or itself constituted an essential ingredient of the charged offence.^[11]

25. We have assumed that this case falls within the first of those categories; it plainly does not fall within the second. But Mr Morris QC for the appellant submitted that if, in a case which appears to fall within this category, the person so induced is someone who is not believed on reasonable grounds to have committed the same or a similar offence before, the evidence should be excluded. The basis for a distinction between a person or suspect in respect of whom such a reasonable belief exists and one in respect of whom there is no such belief but there is a belief on reasonable grounds that he is corrupt in the sense that he is prepared to enter into a corrupt protection agreement if approached, is not apparent to us. We do not think that the latter could, in our view, be described as the rare and exceptional case where the illegality by Evans was grave and either so calculated or so entrenched that considerations of public policy require exclusion of the evidence. Plainly the assumed illegality here was deliberate. But the only reasonable inference open on the evidence was that, far from being an entrapped unwary innocent, as Mr Morris contended, the appellant was a police officer to whom a trail of corruption led, and who had made known his availability to provide protection to a drug dealer for money. It was then probably impossible to expose his corruption without making a corrupt offer to him. Considerations of public policy in this case required admission of the evidence of his corrupt agreement.

26. The appellant also contended that the verdict was unsafe on the basis of evidence that the appellant did not intend to make the agreement apparently made on 16 June and that consequently there was no such agreement. It was submitted that his intention was to pretend to agree whilst not actually agreeing.

27. It was in support of this argument, apparently, that the appellant contested the accuracy of one of his answers as recorded in the transcript of the tape recorded conversation of 16 June 1996. The transcript at one point records Evans as saying:

"It's a three, three, three split with you and your two mates.  With a grand for him.  I'm giving him five.  Okay.  Now are you happy with that?  I'm up."

And it records the appellant as replying "Um" in a way which is said, if one listened to the tape, would indicate affirmation. The appellant contended at the trial and still maintains that, although what is stated on the transcript as having been said was said and although the first of those statements was made by Evans, the reply was not by the appellant. There are a number of answers to this any one of which, in our view, is conclusive against the raising of this contention on appeal.

28. In the first place Evans gave evidence that the transcript accurately recorded what was said on the tape and by whom so that, although the appellant denied that in the above respect only, the jury were entitled to prefer Evans' evidence about this although there may have been other inaccuracies in it. Secondly the conclusion that the appellant made the agreement alleged in the indictment in that meeting on 16 June does not depend on that answer being made by the appellant. Looking at the transcript as a whole, without that answer, it may be inferred that he made the agreement alleged. And thirdly it was plainly open to infer that what he said in the conversation on 28 June 1996 was intended by him to be performance of that agreement by him.

29. The third of these matters also, in our view, answers the argument of the appellant that the evidence did not prove the appellant's intention to make the agreement alleged when he took part in the conversation on 16 June. The jury were entitled to infer, from the fact that he intended to perform it on 28 June, that he intended to make it on 16 June. Indeed there was no evidence, other than that of the appellant which the jury was entitled to reject, from which any other inference could have been drawn than that the conversation of 16 June was, as it appeared, an oral agreement of the kind alleged. Moreover merely to state the appellant's explanation for why he purported to make a protection agreement with Evans is to understand why the jury did not believe him. He said he had been told that Evans was a police informant and he pretended to agree "in order to cultivate an informant". If he thought Evans was a police informant the only honest and sensible course would have been to reject his offer whether or not he was corrupt.

30. This alternative argument, which was the basis for a contention that the verdict was unsafe or unsatisfactory, must therefore also fail.

31. The appeal against conviction should be dismissed.

32. The appellant was sentenced to an effective term of five and a half years imprisonment, that being the sentence imposed for the offence of official corruption, with a recommendation for parole after serving two years. He was also sentenced to two years imprisonment on each of three counts of perjury. He was 36 years of age at the date of sentence having been born on 27 June 1962. He had no prior criminal history.

33. In sentencing the appellant the learned sentencing judge said correctly that the conduct involved an appalling abuse of his office. He demonstrated no remorse. Apart from his previous good record there is little to be said in his favour. As is almost invariably so in a case of this kind, the appellant has destroyed his career and consequently incurred a heavy financial loss. He has also caused considerable distress to his own family.

34. The difficulty of detecting offences of this kind and the importance of preventing corruption in the police force are matters which make deterrence an important factor in this case.

35. The only factor mentioned by the appellant in support of the application for leave to appeal against sentence was that the sentence imposed failed to give sufficient weight to the circumstances of the offence including that it would not have been committed unless it had been instigated by the relevant law enforcement agency. But as we have mentioned, the action of the law enforcement agencies was probably the only way in which this man's corruption could have been uncovered. It is not a matter which should reduce his sentence.

36. Comparable cases referred to below and in this Court, especially R v McNamara and Gray,^[12] R v Gibson,^[13] R v McKnight,^[14] and R v Kirkpatrick,^[15] support the sentence imposed here.

37. The application for leave to appeal against sentence should be refused.