R v Elfar; R v Golding; R v Sander

This interesting recent decision, the appellants argued (amongst other matters) that the indictments ought to be permanently stayed because the appellants had been compulsorily but unlawfully examined about the relevant events under the Australian Crime Commission Act 2002 (Cth). These examinations had occurred before the decision of the High Court in X7 v Australian Crime Commission which had held such examinations to be unlawful. Interestingly, the Court of Appeal rejected that these circumstances themselves in general constituted a miscarriage of justice and that there was any practical unfairness in the specific case of the appellants.

Gotterson, Morrison and McMurdo JJA

11 July 2017

This matter concerned three appeals against conviction. Each of the appellants was convicted of an offence of the importation into Australia of a commercial quantity of a border controlled drug in contravention of s 11.2A(1) and (2), and s 307.1(1) of the Criminal Code (Cth). [3].

In 2010, the Australian Federal Police received information that a vessel carrying a large quantity of narcotics was sailing towards Australia in order to meet another vessel, to which it would transfer its cargo at sea. [7]. One of the vessels, identified as the Mayhem of Eden, was tracked by the AFP, and observed entering Moreton Bay and mooring off the Scarborough Marina. [8].

On board the Mayhem were two of the appellants, Elfar and Golding. [9]. Each was observed disembarking the Mayhem carrying a “large, heavy duffel bag”. [10]. The appellants were taken to a shopping centre by a taxi, where they were joined by a man called Triplett. [11]. The appellants placed the bags in a car which had been hired by Triplett. [12]. Triplett and Golding subsequently drove away from the shopping centre. [11]. Elfar returned to the shopping centre, and was arrested shortly afterwards. [11].

Less than an hour later, the car was stopped by the AFP. [12]. Triplett and Golding were arrested and the car was searched without a warrant. [12]. One of the duffel bags was cut open and found to contain blocks of cocaine. [13]. About five hours later a search warrant arrived, and the rest of the car was searched, along with the second duffel bag, which also contained blocks of cocaine. [13].

After the first bag had been cut open, the AFP officers went to the Scarborough Marina to secure the Mayhem. [14]. The officers boarded the vessel by forced entry. [14]. Several hours later a search warrant was obtained, and the officers conducted a search of the vessel. [14]-[16]. Some 335 blocks of cocaine were seized from the Mayhem. [17].

A few days later, the second vessel, the Edelweiss was boarded outside Australia’s territorial waters by AFP and Customs officers. [18]. The third appellant, Sander, was on board the vessel and detained by the Customs officers. [18]. Food products matching those found on the Mayhem were found on board the Edelweiss. [18].

The appellants unsuccessfully sought to exclude a number of items of evidence in a pre-trial ruling conducted under s 590AA of the Criminal Code (Qld). [19]. The arguments were that: (i) there had been no power to stop the car and to cut open the bag in which cocaine was found, (ii) the warrant obtained for the search of the Mayhem was unlawfully obtained, or alternatively, the earlier entry on board the Mayhem was unlawful, and (iii) the provisions of the Customs Act 1901 (Cth) which permitted the search of the Edelweiss outside the territorial waters of Australia were invalid because they were unsupported by any head of power under s 51 of the Constitution. [21], [22]. None of the challenges to the admissibility of the evidence were successful on appeal. [49], [64], [121].

Elfar and Golding also sought to have their convictions quashed on the basis that the AFP had deliberately tried to hide aspects of the searches of the car and the Mayhem. [66]–[71]. However, “[n]one of these allegations of non-disclosure provide[d] any basis for the convictions to be quashed”. [72]. A further ground of appeal, that the prosecution on the indictment ought to have been stayed, either permanently or temporarily, because of an alleged failure to disclose material relevant to the persons involved in the investigation, was also unsuccessful. [73]–[77].

The three appellants also argued that the indictment ought to have been permanently stayed because, before the trial, the appellants had been compulsorily but unlawfully examined about the relevant events under the Australian Crime Commission Act 2002 (Cth). The examinations were conducted prior to the decision of the High Court in X7 v Australian Crime Commission (2013) 248 CLR 92, “which held that the ACC Act did not then authorise an examiner to require a person, who had been charged with a Commonwealth indictable offence, to answer questions about the subject matter of the charged offence”. [79]. In reliance on X7, the appellants submitted that “there would be, in each and every case, such a fundamental alteration of the accusatorial judicial process of a criminal trial, from [a] person being compelled to answer questions about the subject matter of an offence with which the person has been charged, that any conviction would constitute a miscarriage of justice”. [82]. Alternatively, the appellants argued that “in the facts and circumstances of their cases, there was a practical unfairness to their defence of the charge”. [82].

McMurdo JA, with whom Gotterson and Morrison JJA agreed, conducted a thorough review of the authorities. [84]-[96]. After conducting that review his Honour stated that the first argument could not be accepted. [101]. His Honour referred to the authorities, particularly X7 v The Queen (2014) 246 A Crim R 402, which explained that “the mere occurrence of the irregularity of the kind in this case (the unlawful examination, under compulsion, of the defendant on relevant matters) of itself does not give rise to a prejudice which can justify the permanent stay of the proceeding”. [101].

As for the appellants’ second argument, it was argued that an actual prejudice, or practical unfairness, resulted from an “impediment upon each in his election to give or not give evidence at the trial”. [102]. However, as McMurdo JA observed, while the appellants “could not have given evidence at their trial which was exculpatory, without contradicting the evidence given to the ACC”, neither appellant “claim[ed] that his evidence to the ACC was untrue, inaccurate or incomplete”. [102]-[103]. And neither had offered any indication of what evidence he might have given at the trial, but for the suggested impediment from the ACC examination. [103]. McMurdo JA therefore concluded that neither of the appellants had proved that “by his evidence given to the ACC, he was unfairly deprived of the chance of an acquittal”. [105].

The appeal against convictions were dismissed. [108], [136].

J English