The High Court’s judgment last week to free a heroin trafficker because evidence used to convict him had been obtained illegally has been condemned more than it has been praised. Police had engaged in the controlled import of heroin in order to get the conviction. The court rejected a defence of entrapment, but said the illegality of the evidence-gathering was of such a grave nature that public policy demanded the exercise of judicial discretion to exclude the evidence. The result would be an acquittal. The High Court was between the devil and the deep blue sea. On one hand, it faced condoning the illegal conduct of the police. On the other, it faced freeing someone who was obviously a heroin trafficker. The six majority judges preferred the latter. The lone dissenter said the conviction could be upheld while condemning the police conduct, even suggesting they be prosecuted. The majority judges, however, thought that mere judicial statements condemning police conduct would be hollow. There is some truth in that.
They thought that as the police had engaged in the very conduct that the law in this case had been designed to prevent, namely the import of heroin. It is unfortunate that this has resulted in a quashed conviction of someone otherwise guilty, but that may be the price to get the whole issue fixed. One of the case’s leading critics has been Justice Minister, Duncan Kerr. He is proposing to legalise some police controlled activity that would otherwise be illegal. This sounds all right. But there are no easy answers. The history of Australian policing _ with corruption, at times, leading to the highest levels _ gives no cause for complete faith in the police to control the their own use of crime to catch criminals.
It would be far to easy for corrupt police to use the authorised, controlled handing of drugs or stolen goods or whatever as a disguise for their own corrupt conduct. Some very clear judicial oversight would be necessary. Mr Kerr is right to signal some legislative change because the High Court has left the criminal justice system in an unsatisfactory state. The bottom line now is that police cannot engage in what would be significant crime even in a controlled way and with the pure motive of catching criminals. However, the power of some organised crime is such that this might be the only way.
That said, the High Court was right to say that it could never condone the breaking of the law by the police _ which part of the Executive arm of government. It is of fundamental to our system that the Executive _ that is the Government, the Ministers and the public servants _ must obey the law and be answerable to it. If that principle is ever diluted we are on the first step to erosion of liberty, arbitrary rule and perhaps tyranny. If police are to engage in conduct that would ordinarily be criminal (like importing heroin or possessing drugs, firearms or stolen goods) in order to defeat crime, the conduct must be done in a lawful way.
That necessarily means legislation laying down the sorts of circumstances it can be done and an administrative process to ensure the legislation is complied with. That will not be an easy task and nor should it be done too quickly. It is not merely a question of closing a loophole quickly before too many drug dealers get through it. Rather, it will be a piece of legislation which touches the heart of our system of government. So great care is needed.