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TOPIC –
Analyze the considerations of rule, principle, and/or policy which are articulated in or which might lie behind the decision in State of Tasmania v Melick [2019] TASSC 19 (see following pages).
Please note – you must make reference to the concept of Judicial Activism in your paper, incorporating the role of the Judge as discussed by Dworkin and Hart (among others).
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v Melick [2019] TASSC 19
PARTIES: STATE OF TASMANIA v MELICK, Thomas Oliver
FILE NO: 366/2016
DELIVERED ON: 7 June 2018
DELIVERED AT: Hobart
HEARING DATES: 4, 5, 6, 7 June 2018
JUDGMENT OF: Brett J
CATCHWORDS:
Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Illegally obtained evidence – Particular cases – Bio security officer inspected parcel for plant quarantine material and discovered illicit drugs – Unlawful for Australia Post employee to x-ray and open parcel, and disclose contents to police – Evidence has high probative value – Desirability of admitting the evidence outweighs the undesirability of its admission.
Evidence Act 2001 (Tas), s 138. Plant Quarantine Act 1997 (Tas), s 49. Australian Postal Corporation Act 1989 (Cth), ss 90N, 90P, 90T, 90U, 90Z. Aust Dig Criminal Law [2686]
Communications Law – Postal services – Australian Postal Corporation (and its predecessors) – Functions and powers – Power to open and examine post – Bio security officer inspected parcel for plant quarantine material and discovered illicit drugs – Unlawful for Australia Post employee to x-ray and open parcel, and disclose contents to police.
Plant Quarantine Act 1997 (Tas), s 49. Australian Postal Corporation Act 1989 (Cth), ss 90N, 90P, 90T, 90U, 90Z. Aust Dig Communications Law [1054]
REASONS FOR RULING BRETT J 7 June 2018
1 The accused is charged with one count of trafficking in a controlled substance, in particular, MDMA. The trafficking is alleged to have taken place between 28 December 2015 and 12 January 2016. The basis of the allegation of trafficking is that the accused attempted to import the controlled substance into Tasmania with the intention of selling it. The allegation relies on the extended definitions contained in s 3(1) and (2) of the Misuse of Drugs Act 2001.
2 The Crown case is entirely circumstantial. A crucial aspect of this case is evidence that, on 12 January 2016, an Express Post parcel addressed to the accused, which had been forwarded from an address in Victoria, was detected in the course of post at the Mornington Mail Centre. Upon examination, the parcel was found to contain 501 ecstasy tablets and a snap lock bag containing 4.5 grams of cocaine.
3 The accused objects to evidence of and arising from the examination of the postal item. The basis of the objection is that the process whereby the item was detected and its contents examined, was attended by illegality in a number of respects. It is submitted that, accordingly, the provisions of s 138 of the Evidence Act 2001 are engaged. That section provides that evidence that was obtained improperly or in contravention of an Australian law, or in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in that way.
4 It is accepted by both parties, and I accept, that the onus of establishing that the evidence was obtained by, or in consequence of, a contravention of an Australian law falls on the accused. If I am satisfied that that is the case, then the prosecution must satisfy me that the desirability of admitting the evidence outweighs the undesirability of admitting it, having regard to the way in which it was obtained. Unless I am satisfied of that matter, the section prevents the admission of the evidence. In making the latter determination, I am required to take into account the matters set out in s 138(3), although these are not exclusive considerations.
Illegality
5 In order to understand the way in which it is asserted by the accused that the evidence was obtained by, or in consequence of, a contravention of an Australian law, it is necessary to understand the events which led to the contents of the package coming into the possession of the police. Those matters were the subject of evidence on the voir dire. The parties also agreed that I could have regard to the Crown papers generally for the purposes of this argument.
6 At the relevant time, Jason Paul was employed as an inspector with Biosecurity Tasmania. The appointment as an inspector is made pursuant to s 49 of the Plant Quarantine Act 1997. Section 50 of that Act sets out the general functions of an inspector. Those functions reflect the central subject matter with which the legislation is concerned, the prevention of the introduction of exotic weeds, pests and diseases into Tasmania.
7 For some time prior to and since January 2016, inspectors from Biosecurity Tasmania, including MrPaul, screened Express Post parcels arriving from Victoria into Tasmania at the Mornington Mail Centre. The screening took place on each day between Tuesday to Friday of each week. The screening relates only to Express Post parcels because other forms of mail are screened at other mail centres. It seems that the Mornington Mail Centre is the primary, if not exclusive, point of entry into Tasmania for Express Post articles.
8 The methodology conducted by Mr Paul, which I infer is typical of biosecurity inspectors performing that role, is to select for the purposes of x-ray a sample of parcels from the conveyor belt which carries those parcels in the Mail Centre as part of its processing function. The selection is made on the basis of parameters informed by experience. The inspectors are specifically concerned with detecting the presence of organic plant material relevant to their function under the Plant Quarantine Act. Mr Paul testified that indications that mail might contain such material might arise from the nature of the parcel, for example, such material is often sent by mail in boxes, or on the basis of the mainland locality from which the parcel has originated. He has the potential to examine every parcel coming through the Mail Centre but practical requirements mean that only a selection of those parcels will be subject to x-ray surveillance.
9 Mr Paul agreed with senior counsel for the accused that the x-ray operates by passing x-rays through the subject article. The speed at which the x-rays move through the item will be affected by its density. The result is a rudimentary image of the contents, which appears on the screen of the examination machine. In the case of the machine used by Mr Paul, it also reflects various substances according to a typical colour. For example, organic material, the focus of Mr Paul’s surveillance, may appear orange, whereas aluminium is blue, and dark green could be plastic.
10 The drugs were discovered after the relevant parcel was selected by Mr Paul for x-ray screening. As already noted, he was not looking for drugs, but rather organic plant material. In this case, he observed on the x-ray what appeared to be organic material. He based this identification on the colour of the contents of the parcel. His understanding of the relevant provisions of the Australian Postal Corporation Act 1989 (Cth) (the Act), was that he was not permitted to open the parcel in order to physically examine its contents, but that this could be done by an employee of Australia Post, whom he believed had been appointed as an authorised examiner under that legislation. He presented the parcel to that person, who opened it and discovered the drugs. There was no plant quarantine material in the parcel.
11 The Australia Post employee believed, correctly as it transpired, that the contents of the parcel were illicit drugs. Australia Post had formulated standard operating procedures which required illicit drugs, upon discovery, to be delivered to the police. The employee followed those procedures. Tasmania Police were informed of the discovery, and, upon their arrival at the Mail Centre, the drugs, and the parcel in which they had been contained, were delivered into their possession.
12 The defence asserts that these events involved illegal conduct on the part of the officers of Biosecurity Tasmania, Australia Post and Tasmania Police. The asserted illegality involves various contraventions of the provisions of the Act, in particular Pt 7B. The provisions of that Part prescribe the manner in which postal articles are to be dealt with by Australia Post. This includes the prescription of limits upon the examination of the contents of parcels while they are in the course of post. In particular Div 2 deals with limits on the use and disclosure of information and documents, which counsel termed “secrecy” provisions, and Div 3 deals with limits on the examination of the contents of postal articles. It is apparent that the purpose of these provisions is to strike a balance between the protection of the privacy of postal mail, and the public interest in the detection of illegal or dangerous items, and criminal conduct, through examination of the mail. The legislation seeks to achieve this balance by prohibiting examination or disclosure of the contents of the mail, except in defined circumstances.
13 In general terms, the defence alleges that the x-ray examination of the parcel, the examination of its contents and the disclosure and then provision of the contents to the police, was contrary to the Act. The asserted contraventions which have been established to my satisfaction are:
(a) It is asserted that the examination of the article by x-ray by the Biosecurity officer was contrary to s 90N of the Act. That section provides as follows:
“Prohibition on opening or examining article (1) For the purposes of this section, the opening of the article, or the examination
of its contents, is prohibited conduct if:
(a) the opening or examination is not permitted by any of sections 90P to 90U or section 90UB; or
(b) the opening or examination is permitted by section 90Q or 90S but occurs otherwise than at a place determined in writing by the Board for the purpose of opening or examining the article, or a class of articles that includes the article.
(2) A person who engages in prohibited conduct commits an offence punishable, on conviction, by imprisonment for a period not exceeding 2 years.”
The Biosecurity officer was purporting to act in accordance with the provisions of s 90U. Section 90U provides specifically for examination of the post by quarantine inspection officers. It applies to articles coming into a State from another place in Australia. The provision authorises a quarantine inspection officer to request an authorised examiner to open a postal article if the inspector has reasonable grounds for believing that the article consists of or contains quarantine material. In this case, the Biosecurity officer, after using x-ray examination to confirm the potential presence of quarantine material, acted in purported compliance with that provision by requesting a person whom he believed to be an authorised examiner, to open the article.
The first contravention raised by the defence concerns the use of x-ray to examine the contents of the parcel. As I concluded in a ruling in respect of similar circumstances in the case of Tasmania v Hansen (unreported, 21 June 2017), the section does not permit a quarantine officer to examine the contents of the article unless and until he has reasonable grounds for believing that the article contains quarantine material. At that point, the officer’s authority is limited to requesting an authorised examiner to remove the article from the normal course of carriage and open it. The quarantine inspection officer is otherwise prohibited by the provisions of s 90N from examining the contents of the article. As I concluded in Hansen, the prohibition extends to x-ray examination of the contents. This conclusion is supported by the provisions of s 90P, which provides another exception to prohibited conduct under s 90N. That section permits an authorised examiner to examine an article or its contents “… by any means that does not involve unfastening or physically interfering with the cover of the article”. The section further provides that “For example, the article and its contents may be examined by x-ray, metal detector or odour detector.” That exception is only necessary if x-ray examination falls within the ambit of the general prohibition contained in s 90N.
As already discussed, the evidence disclosed that Bio security Tasmania conducted constant surveillance of postal items at the Mornington Mail Centre. The practice was that the officer would select items for x-ray examination based on screening criteria, such as the location of the source of the item. It was explained that parcels emanating from certain locations were more likely to contain plant quarantine material than otherwise. The officer would only refer the parcel to an authorized examiner if x-ray examination revealed the potential presence of plant quarantine material.
I am satisfied that this practice breaches the Act in at least two respects. Firstly, the x-ray examination is prohibited conduct and only permitted if specifically authorized by the Act, for example in the case of an authorized examiner acting under s 90P. It is common ground that at the relevant time, Bio security officers were not authorized examiners. Accordingly, it was unlawful for the Bio security officer to use x-ray to examine the contents of the parcel. This was the case, irrespective of the officer’s belief about the contents of the article. The Act does not permit direct examination by a person other than an authorized examiner in any circumstance. Secondly, the authorized officer is only permitted to open the parcel in the case of a lawful request from a Bio security officer. Such a request is only permitted if the bio security officer holds the requisite belief specified in s 90U. An unlawful examination cannot provide the basis for the belief and, hence, the request. It follows that it was unlawful for the Australia Post employee to open the article.
(b) The next issue raised by the accused concerns what took place after the opening of the parcel and discovery of the drugs. Section 90U(6) provides as follows:
“(6) Subject to section 90X, if the article is found not to consist of, or contain, quarantine material, the authorized examiner must close up the article and return it to the normal course of carriage, following the procedures (if any) that are prescribed for the purposes of this section.”
Senior counsel for the accused submits that Australia Post breached this section because, when it was found that the parcel did not contain quarantine material, it did not close up the article, with its contents still inside, and return it to the normal course of carriage, but instead kept it for the purpose of handing it over to the police. It is submitted that such conduct was not authorized on the basis that the examiner had located illicit drugs in the parcel. The submission is that, irrespective of this discovery, the article must be returned to the normal course of carriage unless quarantine material is located.
There are, of course, other circumstances in which the post can be opened, but only for specific reasons analogous to the search for quarantine material. Section 90T is one such provision. It deals with articles reasonably believed to consist of or contain illegal drugs. However, that section applies only in the case of articles which:
- weigh 25 grams or more, and
- that are in the course of post between Australia and a place outside Australia, and
- that are reasonably believed by Customs officers to consist of or contain drugs that are being carried in contravention of a Commonwealth law relating to their importation into or exportation from Australia.
The defense argument is that, because s 90N contains a general prohibition on the opening of articles except in the circumstances authorized specifically by relevant provisions, including ss 90U and 90T, then, unless the circumstances specifically defined in those sections apply, the article cannot be opened, and if it is opened, must be then dealt with in accordance with those provisions. It is submitted that s 90T demonstrates that Parliament intends, specifically in the case of illegal drugs, that the privacy of the mail will only be superseded in the case of drugs which are being imported into or exported from Australia, contrary to Commonwealth law. This, according to defense counsel, exemplifies the balance struck between crime detection and personal privacy in respect of the use of the post to transport drugs.
I accept those submissions. The mere fact that the Australia Post employee found that the article contained illicit drugs, which were at best being transported from one part of Australia to another, did not justify the employee acting in contravention of clear legislative provisions.
Ms Shand, on behalf of the prosecution, submits that, notwithstanding the provisions just discussed, the employee was acting lawfully because s 90U(6) is expressly made subject to the provisions of s 90X. That section provides that if ss 90Z or 90ZA apply to an article which has been opened or examined, then the article may be dealt with under that section, despite any other provision dealing with what must happen after the article has been opened. The section which Ms Shand submits is applicable to the circumstances of this case is s 90Z. That section provides as follows:
“Dealing with dangerous or deleterious things
If an employee of Australia Post knows, or has reasonable grounds for suspecting, that the article contains something that is or could be explosive, dangerous or deleterious, the article may be dealt with in accordance with the applicable provisions of the terms and conditions agreed or determined under section 32.”
The relevance of this provision is that the Australia Post employee was purporting to comply with standard operating procedures which were in accordance with the provisions of terms and conditions determined by the Australia Post Board under s 32. That section authorities the Board to determine terms and conditions applicable to the supply of postal services. In effect, those terms and conditions operate as would the provisions of a contract. The terms and conditions in force at the relevant time were placed in evidence. Clause 62 deals with prohibited goods. The definition of prohibited goods includes “poison, drug or medicine”. Clause 62.2.1 provides that where an article is reasonably suspected of containing something that is explosive, dangerous, prohibited or deleterious, it may be delivered up to the police. Clause 62.2.3 provides that in other circumstances, if an article is reasonably suspected of constituting evidence of a criminal offense, it may be provided to the appropriate police force.
Standard Operating Procedure 19, which was applicable at the relevant time, deals with “drugs in the mail”. The document draws upon a number of legislative provisions. For example, it deals specifically with procedures relating to international mail, and refers specifically to s 90T. Clause 5 deals with “procedures in relation to domestic mail”. That clause specifically refers to cl 62 of the terms and conditions, and, on the basis of that clause, instructs Australia Post employees as follows:
“5 Procedures in relation to domestic mail
The Australia Post Terms and Conditions (APT&C) paragraph 62, determines that illicit drugs are ‘Prohibited Goods’. As such it would be ‘reasonably suspected’ that the possession of illicit drugs constitutes an offence and the article can be delivered up to the prosecuting authority ie State Police (para 62.1.2 and 62.2.3 refer). There is no need for the authority to execute a warrant. A receipt for the article is to be obtained from the authority at the time of handing over the drugs. This process will not necessarily require CSG involvement other than advice and also coordination of the Authorities.
When such articles are handed over to the Authorities the articles become their property to deal with as they see fit, including them opening the articles. They cease being a mail article in the course of the post or the responsibility of Australia Post.”
Ms Shand argues that illegal drugs of the type found in this parcel constitute “something that is or could be … deleterious”. Accordingly, she submits, the provisions of s 90Z apply and, by virtue of s 90X, the article can be dealt with under that section. It follows, according to Ms Shand’s argument, that the article can be dealt with in accordance with the terms and conditions and, accordingly, Australia Post employees were authorised by the standard operating procedure to hand over the drugs to Tasmania Police.
Ms Shand’s reasoning is sound, provided that the drugs fall within the description of “something that is or could be … deleterious”. Neither party was able to refer me to any authority which would inform the meaning of that word, within the context of this provision. I was, however, referred to dictionary definitions. For example, the Macquarie Australia Dictionary defines “deleterious” as “hurtful, harmful, injurious”.
Ms Shand argues that illegal drugs are clearly capable of falling within the ambit of such a definition. However, it is a fundamental principle of statutory interpretation that terms, particularly general words, must be interpreted having regard to their context within the legislation read as a whole, and, in particular, the overall statutory scheme. See K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315, per Mason J. Further, the ejusdum generis rule requires the meaning of a general word, within a list of words which define a category, to be read down to accord with the category so defined. When regard is had to those principles, it is clear that the meaning of “deleterious” within s 90Z cannot be defined as broadly as the prosecution suggests. It is not appropriate or necessary for me to define the precise limits of the interpretation of this provision. However, in the case of the illicit drugs which form the subject matter of this case, I am satisfied that they do not fall within that definition. In general terms, it can be accepted that such drugs are capable of being deleterious, depending on the circumstances of their use. However, they are not capable of being immediately harmful in the nature of something which is explosive or dangerous. The provision must be interpreted within the context of the overall legislative scheme, which, as already noted, seeks to balance the right to privacy of those who use the post, with the need for investigation and disclosure of the contents of the post in appropriate circumstances. Division 4 should be read down accordingly. In my view, illicit drugs of the type relevant to this case do not fall within the ambit of those provisions.
This conclusion is supported by the provisions of s 90T. It would seem clear that if the legislature had intended to include in that provision drugs which are being transported by post within Australia, it would have been a simple matter to say so expressly, or to prescribe a separate provision for them. It is highly unlikely that the intention would be to catch such items by the general words used in s 90Z. Further, if s 90Z was to receive the interpretation urged by the prosecution, then s 90T would be otiose. An interpretation which avoids that outcome and gives meaning and effect to that provision should be preferred to one which does not.
I am satisfied, therefore, that the provisions of s 90Z are not applicable to the drugs which were found in the parcel in this case. It follows that s 90X is not applicable and, therefore, that the provisions of s 90U required the authorised examiner to close up the article and return it to the normal course of carriage, following the examination of its contents. In failing to comply with that provision, and instead taking the contents of the parcel out of the course of post and delivering them to Tasmania Police, the authorised examiner and other employees of Australia Post have contravened that provision.
(c) I am satisfied that employees of Australia Post committed a related but separate contravention of the Act, by informing Tasmania Police of the presence of the contents of the article, in particular the illicit drugs, prior to handing the drugs over to Tasmania Police. Section 90H of the Act provides that a person who engages in prohibited conduct, as defined in that section, commits an offence. “Prohibited conduct” occurs if the person uses or discloses information which relates to the contents or substance of an article being carried by post, and which is acquired or received by that person in the course of his employment, as an employee of Australia Post, unless the disclosure is permitted by certain specified sections of the Act. In this case, the only section which was relevant to the disclosure of the existence of the drugs in the parcel is s 90J. That sections sets out a number of circumstances in which it is lawful for an employee of Australia Post to disclose the relevant information. The provision which is relevant to the circumstances of this case is s 90J(9), which provides that the person may disclose the information if:
(a) the person is an authorised discloser; and
(b) the information is a reasonable suspicion that an article consists of or contains anything that is or may be evidence of an offence.
Clearly par (b) is applicable to the circumstances of this case. However, par (a) requires that the disclosure can only be made by an authorised discloser.
The disclosure in question was made by Mr Peter Jones, who describes himself as a mail processing co-ordinator and supervisor. Although he was not directly asked whether he was an authorised discloser, it is a reasonable inference from his evidence that he was not. His testimony disclosed little understanding of the provisions of the Act that relate to disclosure, including those discussed above. Mr Jones relied on the standard operating procedures as authorisation for the disclosure. It can be inferred that had he been an authorised discloser, he would have said so during the course of his evidence.
I am satisfied, therefore, that his disclosure of the relevant information to Tasmania Police was a breach of s 90H of the Act because it was not authorised by any relevant provision, including s 90J.
14 I am satisfied that the relevant evidence has been obtained as a consequence of these contraventions. In addition to these contraventions, the defence raised a number of other technical issues with respect to the actions of Australia Post. However, I am not satisfied that the accused has satisfied his onus to establish these other contraventions, nor that the evidence was obtained in consequence of them. In particular:
- There is no evidence that Mr Paul was not properly appointed as an inspector pursuant to the Plant Quarantine Act.
- The question of reserved services is not applicable to location of the evidence in this case, and the evidence was not obtained in consequence of a contravention, if such contravention has been established.
- It is asserted on behalf of the accused that the members of Tasmania Police who took possession of the illicit drugs are also in breach of the Act, in particular s 90N(2). That section prohibits any person from examining the contents of an article. However, the prohibition only applies while the article is in the course of post, and does not apply while it is out of the control of Australia Post.
15 Section 90E defines “in the course of post” to mean, in relation to an article, when the article: is being carried by post; or has been collected or received by Australia Post for carriage by post but has not been delivered by Australia Post.
16 In this case, I think it is arguable that the employees of Australia Post, by handing the article over to Tasmania Police, have delivered the article and it has passed out of the control of Australia Post. As far as the Tasmania Police officers were concerned, once they took possession of the article, they were required to comply with the law of Tasmania and their duty as police officers. In my view, the fact that the Australia Post employees may have acted unlawfully in handing over the article, does not detract from the obligation of the Tasmania Police officers to deal with the drugs as evidence of an offence, once those drugs have come into their possession. I am not satisfied the Tasmania Police officers acted in contravention of the law or improperly by doing so.
17 I am also not satisfied that there has been any other relevant contravention. The contraventions that I have identified above are restricted to employees of Australia Post and Biosecurity Tasmania.
The balancing exercise
18 The findings I have made trigger the application of s 138(1). Accordingly, the evidence is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the manner described. In considering this question, I must take into account the matters set out in s 138(3), as well as any other relevant consideration.
19 After considering all relevant matters, including those referred to in s 138(3), I am satisfied that the desirability of admitting the evidence in this case outweighs the undesirability of admitting evidence obtained as a consequence of the said contraventions.
20 The most important considerations, in my view, are as follows:
- I consider that the evidence has high probative value. The discovery of the parcel, the nature of the parcel, including the fact that it was addressed to the accused at a post office box in the name of his parents, and the identification of the contents of the parcel are important pieces of circumstantial evidence. The capacity of that evidence to rationally affect the probability of the existence of a fact in issue, namely whether the accused imported the drugs into Tasmania, is in my view, very high.
- The evidence is extremely important in the proceedings. If the evidence is not admitted, then the Crown case will fail. The prosecution is entirely dependent upon the admission of that evidence.
- The evidence relates to proof of a charge of trafficking in MDMA, constituted by an act of importing the drugs into Tasmania with the intention of sale. The charge, in my view, relates to an allegation of a serious offence. The alleged conduct involved the introduction and potential dissemination of an illegal drug into the Tasmanian community. This consequence carries with it an inherent potential for harm to an indefinite number of people. This must be considered a serious matter, irrespective of the level of commercial activity manifested by that conduct.
- It is clear that the contraventions which I have found took place are also serious matters. I accept that the laws which were breached are important laws designed to protect the rights and privacy of citizens utilising the services of Australia Post. I accept also that the contraventions arose from failures within Australia Post and Biosecurity Tasmania, which were systemic, in the sense that they were failures of the relevant organisation, rather than the individuals who performed the relevant actions. In my view, this increases the gravity of the contraventions.
- However, there are a number of factors in this case which tend to ameliorate the gravity of those contraventions. In particular:
In respect of the location of the drugs:
- This was not a case in which the contraventions occurred during the course of an investigation, or which related directly to an intention on the part of investigators to obtain the evidence. No one involved in this case set out to look for drugs. They were found as an incident of a systemic and routine examination of the post by Biosecurity Tasmania, designed to detect plant quarantine material. This task and its purpose is clearly contemplated and provided for by Federal and State legislation. The contraventions relate to the manner in which that examination was taking place and then to what occurred when the drugs were located. The case can, therefore, be distinguished from circumstances in which an investigator, seeking to obtain evidence of a particular crime, deliberately, recklessly or even inadvertently breaks the law in order to obtain the evidence, which is then used to support the intended prosecution.
- It is also relevant to this question, for the reasons I stated in Hansen, to note that at the time that this screening was taking place, there had been no judicial warning relating to the illegality of the practice of Biosecurity officers using x-ray to screen postal items. I accept that it is a concern that subsequent to Hansen, Biosecurity Tasmania and Australia Post have continued the illegal practice, although it seems, in the context of this case, that some recent attempts have been made to rectify this problem. I do not think that I need examine the legality of those attempts. The relevance of the continuation of the practice after Hansen and Brown to this case can only be with respect to the desirability of not admitting the evidence in order to deter the continuation of an unlawful practice. However, I accept Ms Shand’s submission that although not admitting the evidence may have some deterrent effect, that effect should not be overstated in respect of these particular agencies. They are not directly related to this prosecution and have no obvious interest in it. It is a factor, but as with all other considerations, it needs to be balanced against the factors which support the desirability of admitting the evidence. In this case, the evidence is vital in respect of a prosecution for a serious crime, and hence its admission is desirable for that reason.
The purpose of Biosecurity’s examination of the post was to look for quarantine material entering Tasmania. This purpose is clearly important and in the best interests of the Tasmanian community. It is also a purpose specifically facilitated by the Commonwealth Act. Accordingly, the officers in question were seeking to achieve a lawful purpose. Further, they did not ignore the procedural requirements designed to safeguard the rights of citizens using the post. Upon identifying the article for further examination with respect to the potential presence of quarantine material, a lawful purpose, the officer attempted to further comply with the law by referring the package to a person he believed was an authorised examiner. Of course, I am satisfied that the initial use of x-ray examination to identify the article in the first place was unlawful. There may also be questions about whether the officer applied the correct test in deciding to have the package opened, although I do not think I have sufficient evidence to establish a contravention of the law in relation to that question. The point I am making, however, is that the officer was pursuing a lawful purpose and attempting to comply with restrictions on his power. In that respect, this case can be distinguished from more serious cases in which the law has simply been ignored, or deliberately contravened, in pursuit of evidence to support a potential prosecution.
In respect of the contraventions which relate to informing the police of the contents of the parcel and then handing those contents over to the police rather than closing up the parcel and placing it back into the normal course of carriage, I note the following matters:
- This contravention occurred because of a misunderstanding by Australia Post, as an organisation, of its legal obligations in respect of circumstances such as this. The officers concerned were complying with standard operating procedures which had been formulated in accordance with the terms and conditions fixed by the Board of Australia Post, pursuant to s 32 of the Act. My findings in respect of the said contraventions depend upon my conclusion that the terms and conditions are subject to other express provisions of the Act, in particular in this case, the provisions of s 90U. This conclusion incorporates a finding that the drugs are not “something that is or could be explosive, dangerous or deleterious” within the meaning of s 90Z. If they were, then the standard operating procedures applied and the actions of the Australia Post workers were lawful. It is true that the individual workers were not expressly or even consciously relying on s 90Z, but they were following operating procedures which were based on terms and conditions which had been framed on the assumption that items such as drugs fall within the procedural authority created by that provision.
- There is no question, therefore, that all concerned at Australia Post, including those who formulated the standard operating procedures and the workers who applied them, were attempting to comply with the law. Their mistake was in a misinterpretation of provisions which contain terms which are vague and not defined within the legislation. The difficulty with interpretation of these terms is highlighted by the obvious problem that both counsel had in providing me with firm authority as to the meaning of the word “deleterious”. So, once again, the contraventions did not occur because of an attempt to obtain evidence in contravention of or without regard to the law, but rather because of mistakes with respect to the interpretation of that law.
- Further, the problem with the standard operating procedures has not been judicially identified before this case, whether at the time of the contraventions or since. Accordingly, in respect of this aspect of the matter, this is not a case where the organisation or the individual workers had any prior warning of the problems, nor does the issue with respect to deterrence based on subsequent behaviour have any particular relevance.
- In any event, had the law been complied with, the legislation contemplated police being informed of the existence of the contents of the package, albeit that they would have been required to wait until delivery, in order to seize or deal with it. It can be inferred that, had the authorities acted as required by the law, the evidence would still have been obtained by Tasmania Police and available to the prosecution in this case.
- The comments I have already made in relation to the desirability of punishing the prosecution for the failures of Australia Post, apply equally to these contraventions.
It follows from what I have said that none of the established contraventions occurred because of deliberate or reckless conduct on the part of the individual officers of either Australia Post or Biosecurity Tasmania. Further, given the lack of prior judicial notice and the difficulties with legislative interpretation, the contraventions do not, in my view, represent deliberate or reckless conduct on the part of the relevant organisations. There has, at the very least, been an attempt to comply with the law, notwithstanding that I found those attempts in certain respects to be unsuccessful.
21 In conclusion, I should not for one moment be taken as suggesting that the laws relating to postal secrecy are not important. Clearly they are, and they should be applied as the law requires. However, what I am concerned with in this case is balancing the desirability of admitting this evidence against the undesirability of admitting evidence obtained as a consequence of the specific breaches of those laws. For the reasons given, I am satisfied that the desirability of admitting the evidence outweighs the undesirability of its admission in those circumstances. Accordingly, the evidence will be admitted.
MARKING RUBRIC
| High Distinction | Excellent writing style – concise and clear. Appropriate structure – including strong introduction, logically constructed body and conclusion. Clearly identifies scope of topic. Displays a sophisticated level of understanding of the subject matter. Very few or no spelling or grammatical errors. Very few or no errors in referencing style. Displays very high level understanding of rule, principle and policy, including sophisticated engagement with literature in this area, and identifies all those rules, principles and policies relevant to the issue.
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| Distinction | Very good writing style with only a few expression issues. Good introduction, logical body and conclusion. Keeps to task after identifying the topic clearly and accurately. Few spelling and grammatical errors and few errors in referencing style. Displays high level of understanding of rule, principle and policy, including engagement with literature in this area, and identifies all those rules, principles and policies relevant to the issue.
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