Additional Information: The Cocaine & TOM

HEARING DATE(S) :    2 November 2006; 21 November 2006
     JUDGMENT DATE :     12 December 2006 - to read more visit link MORE

DOWE v. COMMISSIONER OF THE NEW SOUTH WALES CRIME COMMISSION & ANOR; PAVAN v. COMMISSIONER OF THE NEW SOUTH WALES CRIME COMMISSION & ANOR; GEDEON v. COMMISSIONER OF THE NEW SOUTH WALES CRIME COMMISSION & ANOR; ZAITER & ANOR v. COMMISSIONER OF THE NEW SOUTH WALES CRIME COMMISSION & ANOR [2006] NSWSC 1312

THE FACTS - TOM 

23 On 8 October 2004, approximately 10 kilograms of cocaine was unlawfully imported into Australia. None of the parties to the present proceedings was involved in, or aware of, the importation at the time it occurred. A person code named “Tom” had the primary role of selling the cocaine and he took possession of it. Some time after 8 October 2004, “Tom”  buried the cocaine in bushland near Wahroonga. Later, he sold three kilograms of the cocaine and re-buried seven kilograms of it.

24 In consequence of information provided to the Crime Commission by “Tom”, he, on 14 December 2004, was registered as a Commission informer. A joint taskforce of New South Wales Police, Australian Federal Police was then established and the Crime Commission investigated the information provided by “Tom” and sought to obtain evidence regarding offences against Commonwealth and State law.

25 On 2 February 2005, a meeting was held between officers of New South Wales Police and the Crime Commission to discuss the potential sale of up to seven kilograms of the cocaine through the informer “Tom”. It is a fact of some significance that this occurred in a context in which “Tom” had earlier advised the Commission of two planned importations of significant quantities of cocaine proposed for February 2005.

26 At the meeting on 2 February 2005, the Assistant Director of the Commission gave a briefing. No Australian Federal Police were present on that occasion. In order to advance the investigation and, in order to maintain “Tom’s” credibility with a particular person and with other subjects of the investigation, the meeting approved in principle the supply of up to seven kilograms of cocaine in circumstances in which it was unlikely that the cocaine would be recovered by law enforcement officers.

27 The Statement of agreed facts set out the circumstances in which the six authorities were purportedly granted pursuant to s.6 of the Act by the first defendant for the conduct of six controlled operations. The authorities were granted on 8 February 2005, on 22 February 2005, 24 February 2005, 25 February 2005, 4 March 2005 and 17 March 2005.

28 The statement of agreed facts also established that late on 6 February 2005, “Tom” was allegedly instructed by a person who was suspected of being both the importer and distributor of the cocaine to retrieve and supply two kilograms of it to a named person. On 7 February 2005, the joint taskforce officers from the Crime Commission, New South Wales Police and Australian Federal Police went with “Tom” to the bushland near Wahroonga and retrieved seven kilograms of cocaine. It was sealed in several Australian Federal Police evidence bags and taken to the National Measurement Laboratory at Pymble apparently for weighing and testing for analysis.

29 On that date and some days later, all of the cocaine was delivered to the Assistant Director of the Crime Commission who placed it in a safe.

30 The agreed statement also sets out the facts concerning supply of cocaine to “Tom” for the purposes of enabling him to supply it to others and the facts concerning transactions involving such supply. The statement also records the facts concerning money received by “Tom” in exchange for the cocaine.

31 Each of the first, second, third, fifth and sixth authorities purported to permit, according to their respective terms:-

(a) One or more specified “law enforcement officers” (within the meaning of the Act) to possess and supply stated quantities of cocaine. (b) An “authorised civilian participant” (within the meaning of the Act) identified in the Authorities to possess and supply stated quantities of cocaine.

32 The details of the activities authorities are set out in paragraph [36]. The first authority related to the supply of the two kilograms of cocaine.

33 Each of the authorities listed the Assistant Director of the Commission as a law enforcement officer.

34 The first defendant, in each authority, identified by name the relevant law enforcement officer to conduct the controlled operation and the identity of the civilian participant by reference to an informer number. An authority was purportedly granted in each case for such persons to engage in the controlled activities specified in a table set out in paragraph 6.

35 The authorities purported to authorise “Tom” and named law enforcement officers to possess quantities of the said cocaine, to supply those quantities to the persons named in the authorities, and to deal with the money paid in exchange for the cocaine supplied. The Crime Commission alleges that the cocaine was supplied in accordance with the authorities and that money was received in exchange.

36 Reproduced below are the terms of the authorities, insofar as the particular controlled activities specified are concerned:-

• (a) Authority (Operation No: 05/0056) granted on 8 February 2005
(i) Nature of controlled activities by law enforcement participant
Possession and supply of 2 kilograms of cocaine to Informer 719.
(ii) Nature of controlled activities by civilian participant
Possession and supply of 2 kilograms of cocaine to Gilbert Gedeon or any agent acting on his behalf in return for payment of $340,000 cash.
Hand $340,000 in cash, representing the proceeds of the sale of the cocaine, to Shane Hatfield or any agent of his.

• (b) Authority (Operation No: 05/10038) granted on 22 February 2005
(i) Nature of controlled activities by law enforcement participant
Possess 1 kilogram of cocaine and supply the cocaine to Commission informer 719, code-named “Tom”.
(ii) Nature of controlled activities by civilian participant
Possess 1 kilogram of cocaine and supply that cocaine to Robert Pavan, and/or persons acting on his behalf or at his request, at Newtown, in  exchange for $160,000.
Of the $160,000 received, hand $110,000 to Pavan, and the remaining $50,000 to Shayne Hatfield.
• (c) Authority (Operation No: 05/01068) granted on 24 February 2005
(i) Nature of controlled activities by law enforcement participant
Possess 250 grams of cocaine and supply that 250 grams of cocaine to Commission informer 719, code-named “Tom”.
(ii) Nature of controlled activities by registered informer 719
Possess 250 grams of cocaine and supply that 250 grams of cocaine to Steve Sevastapoulos, Mario Alexandridis and another person known only as Joe, in return for the payment of $40,000.
Of the $40,000 received, hand $1,000 to Steve Sevastapoulos and hand the remaining $39,000 to Shayne Hatfield.
• (d) Authority (Operation No: 05/01109) granted on 28 February 2005
(i) Nature of controlled activities by law enforcement participant
Possess one kilogram of cocaine and supply the cocaine to Commission informer 719, code-named “Tom”.
(ii) Nature of controlled activities by registered informer
Take possession of one kilogram of cocaine and supply this cocaine to Robert Pavan and/or persons attending with him or introduced by him, in return for payment of $160,000.
Retain the $160,000 received and hand it to Shayne Hatfield, at the time and place nominated by Hatfield.
• (e) Authority (Operation No: 05/01373) granted on 4 March 2005
(i) Nature of controlled activities by law enforcement participant
Possess one kilogram of cocaine and supply the cocaine to Commission informer 719, code-named “Tom”.
(ii) Nature of controlled activities by registered informer
Take possession of one kilogram of cocaine and supply this cocaine to Robert Pavan and/or persons attending with him or introduced by him, in return for payment of sum of money expected to be $170,000.
Of the money received, Pavan is expected to retain $5,000 as a commission and the remainder is to be retained by Tom and handed to Shayne Hatfield, at the time and place nominated by Hatfield.

• (f) Authority (Operation No: 05/01792) granted on 31 March 2005
(i) Nature of controlled activities by law enforcement participants
Possess 750 grams of cocaine and supply the cocaine to Commission informer 719, code-named “Tom”.
(ii) Nature of controlled activities by registered informer
Take possession of 750 grams of cocaine and supply this cocaine to Gilbert Gedeon and/or persons attending with him or introduced by him, in return for payment of $120,000 to be collected by Tom at a later date.
The $120,000 is to be retained by Tom and handed to Shayne Hatfield, at the time and place nominated by Hatfield.

37 On each of the occasions on which “Tom” supplied cocaine purportedly as a ”civilian participant” and as part of the controlled operations, he was visually observed by joint taskforce officers.

38 Subsequently, “Tom” was granted indemnities by both Commonwealth and New South Wales authorities covering all acts done by him under the Authorities.

39 It is agreed that the matters the subject of the authorities were not the subject of any permissions or authorisations under Part 1A of the Crimes Act 1914 (Cth) or of any order under s.39RA of the Drugs (Misuse and Trafficking) Act 1985 (NSW).

40 On various dates in May 2005, the five plaintiffs were arrested and charged in respect of alleged supply of a prohibited drug contrary to the Drugs (Misuse and Trafficking) Act. They were committed for trial in April 2006.

41 The criminal proceedings against each of the plaintiffs in respect of these matters were listed before the District Court on 27 October 2006 for the purposes of setting a trial date in 2007. The proceedings are due to be relisted before the District Court for the purpose of setting them down for trial.

42 All of the charges in relation to each of the plaintiffs concerning the cocaine referred to in the agreed statement resulted from the controlled operations undertaken pursuant to the Authorities.