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High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CRI 2009-485-70
SARAVUTHY MAO
Appellant
v
MINISTRY OF FISHERIES
Respondent
Hearing: 4 August
2009
Counsel: P V Paino for Appellant
P K Feltham for Respondent
Judgment: 6 August 2009
JUDGMENT OF RONALD YOUNG J
(Appeal against conviction)
Introduction
[1] In September
2007 an undercover operation involving a special duties
fisheries officer began in the Wellington region. The officer, Mr Brett Stevens,
concentrated on the illegal harvesting and sale of paua. Between January and
May 2008 the appellant purchased 2,500 kilograms
of illegally caught paua from
Mr Stevens.
SARAVUTHY MAO V MINISTRY OF FISHERIES HC WN CRI 2009-485-70 6 August 2009
[2]
At trial in the District Court on 16 charges of knowingly possessing and
procuring this paua, the informant's evidence was essentially
unchallenged. The
essential issue for the District Court was whether the fact that Mr Stevens
participated in obtaining the paua
illegally tainted the whole of the transaction with
illegality (including the sales to the appellant), thus rendering the evidence
improperly obtained and inadmissible in this prosecution.
[3] The Judge in the District Court concluded the evidence was not
improperly
obtained. As an alternative, the Judge concluded exclusion of the evidence, if
improperly obtained, would have been disproportionate:
s 30 Evidence Act 2006.
[4] The appellant asserts the Judge was wrong in both conclusions. The essence
of the appellant's case
is captured in paragraph [12] of his submissions as follows:
12. The real point in this appeal, and at the defended
hearing, is whether
the conduct of the SDFO sanctioned by the Ministry was such that it was
essentially wrong to
permit the State to use the evidence against the accused
in the defended hearing.
Facts
[5] The source of some of
the paua sold to the appellant came from Mr Stevens'
activities with paua divers illegally obtaining paua from around the Wellington
coast.
During his undercover activities, Mr Stevens developed a relationship with a number
of people who had been illegally obtaining
paua. On 12 to 15 occasions, he
transported divers with their diving equipment to the coast and later picked up the
divers and their catch. The paua illegally obtained on these occasions and others was
purchased by Mr Stevens. He froze and stored
the paua and ultimately sold it to the
appellant and others. These transactions comprised the 16 informations the appellant
faced
at trial.
[6] The first sale of paua by Mr Stevens to the appellant occurred when the
appellant arrived at Mr Stevens' home
with another man who had arranged to buy
illegal paua from Mr Stevens. The appellant was not expected. The appellant said
he would
buy all the paua Mr Stevens could supply, including up to half a ton at a
time.
[7] I note that as the relationship between
the two developed, the appellant
sometimes purchased paua from Mr Stevens but at other times although offered paua
he declined to
purchase. At times, despite the appellant's request, Mr Stevens was
unable to supply paua.
[8] The value of the purchases was
some $61,000. However, the paua was worth
over $300,000 on the legal market. The appellant accepts that he was ready, willing
and
able to commit the offences. As the Judge observed it was clear this was not the
first time the appellant had been involved in such
activity, nor were the purchases
from Mr Stevens the only purchases of illegal paua by the appellant.
Appellant's case
[9]
The appellant submits that the conduct of the undercover officer was
objectionable when he transported paua poachers to and from the coastline to
illegally obtain paua. The
appellant distinguishes an undercover officer simply
purchasing illegally obtained paua (unobjectionable) from what he describes
as the
acts of assistance by the undercover officer to the divers to commit offences under
the Fisheries Act 1983 of unlawfully taking
the paua.
[10] The appellant says the scale of the sales by the officer of over 7,000
kilograms of illegal paua was only possible
because the officer organised the illegal
poachers so that large amounts of paua could be illegally obtained. The appellant
submits
that the first step in the process is Mr Stevens' unlawful activity. The
appellant says when Mr Stevens, on at least 12-15 occasions,
drove the divers to the
coast to illegally obtain paua and later picked up the divers and then bought the catch
from the divers his
conduct was beyond simply supporting those acting criminally.
[11] Taking account of the scale of the operation and this unlawful
conduct, the
appellant says the fruit of Mr Stevens' activities is therefore tainted by his activities.
His activities went beyond
a passive undercover officer. He actually created a larger
and more co-ordinated market for the illegally obtained paua. Once Mr
Stevens'
activity is tainted with illegality, the State should be prevented from ever using this
illegally obtained evidence. Counsel
stressed the officer's pivotal role in obtaining
the illegal paua as the crucial aspect.
Discussion
[12] The law has long recognised
a distinction between the State providing the
opportunity to offend as against active encouragement to commit a crime that would
not otherwise have been committed. The former is acceptable, the latter may not be
(Police v Lavalle [1979] 1 NZLR 45 (CA); R v Katipa [1986] 2 NZLR 121 (CA)).
[13] It is important to keep in mind, however, it is not just a question of active
encouragement by the State to commit
the crime. Active encouragement where an
accused intended to commit a similar crime is not enough to convert the
prosecutorial conduct
into a form of unlawful entrapment. But "State-created" crime
is objectionable. In R v Looseley [2001] UKHL 53; [2001] 4 All ER 897 the House of Lords said:
[20] But what is meant by `state-created crime'? What is the legal
concept underlying
oft-repeated expressions such as lure, incite, or instigate?
What is the distinction, of relevance in the commission of a
crime, which
these phrases are seeking to draw? If an undercover policeman asks a
known drug supplier for drugs, is
he `luring' the unsuspecting supplier into
committing a crime? If not, why not? What does `lure' mean in this
context?
By what criteria is a trial judge to distinguish the acceptable from
the unacceptable?
[21] Questions such as these
have generated extensive overseas judicial
utterances and also academic literature, both in this country and abroad. The
several suggested answers have different emphases and, to a limited extent,
different practical consequences. Underlying
some of the learning is the
notion that expressions such as `state-created crime' and `lure' and `incite'
focus attention
on the role played by the police in the formation of the
defendant's intent to commit the crime in question. If the defendant
already
had the intent to commit a crime of the same or a similar kind, then the
police did no more than give him the
opportunity to fulfil his existing intent.
This is unobjectionable. If the defendant was already presently disposed to
commit such a crime, should opportunity arise, that is not entrapment. That
is not state-created crime. The matter stands
differently if the defendant
lacked such a predisposition, and the police were responsible for implanting
the necessary
intent.
[14] Under the Evidence Act 2006, the question will be whether the Judge finds,
on the balance of probabilities, that
evidence was "improperly obtained" (s 30).
[15] In this case the objectionable conduct is said to be the undercover officer
taking divers to and from the scene of their illegal poaching and purchasing their
illegally obtained paua. There is no suggestion
the officer converted innocent divers
to illegal poachers. His assistance did no more than provide opportunity for those
who were
already involved in illegal paua taking. By analogy he was little more
than the undercover police officer who drove the drug dealer
from house to house to
sell his drugs. It could hardly be suggested the officer was unlawfully entrapping the
dealer by helping him
out with transport. So it is the case on these facts. The divers
whom the officer arrested were, before his involvement, catching
and selling illegal
paua.
[16] As to the volume of paua sold I cannot see the relevance of this factor which
was stressed by
the appellant. The purpose of the operation was obviously in part to
identify those who were prepared to buy paua in bulk and thereby
identify significant
offenders. The appellant was prepared to and did buy large amounts of paua from
Mr Stevens.
[17] Once again
the drug dealing analogy is apt. There is nothing improper in an
undercover police officer offering to buy large quantities of drugs
from an offender.
The offender will decide his level of involvement either by selling or, as here,
purchasing a particular quantity
of the illegal substance. The undercover officer
provided the opportunity by offering to sell the paua to the offender. There is
no
suggestion the sales were only made after lengthy harassment or undue pressure.
The appellant elected whether to purchase any
paua, and if so, how much.
[18] It is difficult to see how Fisheries could effectively investigate the illegal sale
of paua
other than through covert investigatory techniques. There is no "victim" to
report the crime. Those involved who know they are acting
unlawfully are hardly
going to report themselves. Others who may not know the paua they purchase is
unlawfully obtained and have
nothing to complain about. The difficulty in
identifying illegal paua is self-evident. This is also a relevant consideration in
deciding whether the actions of the officer
was improper.
[19] In summary, therefore:
a) I do not consider the actions of the undercover officer in transporting
the divers and in purchasing their paua was objectionable. The divers
were all willing and able to obtain
illegal paua. They had a history of
doing so, including providing their own transport. The undercover
officer's provision of transport did not therefore mean this was
somehow a state created crime. As to the purchase
of the paua by the
officer he did little more than centralise the illegal sales that occurred
before
his involvement. The divers were already selling their illegally
obtained paua before Mr Stevens' involvement.
Given that
conclusion the appellant's case must fail if the undercover actions are
not unlawful,
the sales by him to the appellant cannot be from
"tainted" evidence;
b) the quantity of the paua sold
is irrelevant;
c) no other investigatory techniques to investigate the alleged crimes
were possible.
[20] I agree with the conclusions of the District Court Judge. The evidence
against the appellant was not obtained unlawfully.
[21] Even if I had concluded the evidence was somehow tainted and therefore
improperly obtained, I agree with the District Court
Judge the exclusion of such
evidence would have been disproportionate. As to this the Judge said:
[39] Had I been required
to do so, I nevertheless would have found that
exclusion of the evidence would be disproportionate. In my view any
impropriety would be at an extremely low level as the defendant was deeply
embedded in the illegal paua trade and would have
behaved in exactly the
same way if the opportunity was offered by someone else. I cannot see any
recklessness or bad
faith on the part of Stevens or anyone else involved in
the undercover operation. The evidence is highly significant and central
to
the prosecution case. The charges are serious and given the level of
offending disclosed, a relatively significant
sentence of imprisonment would
be highly likely. There are obvious issues in policing paua poaching over a
huge coastline
and few other available investigatory techniques.
[22] As to the s 30(3) factors:
Nature of impropriety
a) The alleged impropriety was no more than stepping over the line from
legitimate enquiry into active participation
and encouragement. It
was at best a judgement call gone wrong. The undercover programme
was thoroughly
set up and monitored.
Nature and quality of evidence
b) The evidence sought to be excluded is vital to
the prosecution case.
Seriousness of offending
c) Whilst I accept the appellant's point that this offending
is not
offending against a person, it is very serious offending of its type with
16 charges each carrying
a maximum penalty of five years'
imprisonment.
Other investigatory techniques
d) It is
difficult to see realistically what investigatory techniques other
than an undercover officer could be used when the
illegal harvesting
and sale of paua is underground. There is obviously no hope of
tracing illegally obtained
paua. This is especially so in this case
where the focus was on large commercial harvesting and sale of paua.
[23]
These factors overwhelmingly support the conclusion that exclusion of the
evidence would be disproportionate to the impropriety.
[24] For the reasons given, therefore, the appeal will be dismissed.
_____________________________
Ronald Young J
Solicitors:
P V Paino, Paino & Robinson, PO Box
40 955, Upper Hutt, email: law@paino-robinson.co.nz
P K Feltham, Luke Cunningham & Clere, PO Box 10357, Wellington, email: pkf@lcc.co.nz
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URL: http://www.nzlii.org/nz/cases/NZHC/2009/970.html