Additional Information - File 1 - JAMES Henry Kinch

Briton In Thai Prison Fighting Australian Extradition For Nearly A Year International case involving senior Australian police as co-defendent

JAMES Henry Kinch says he would rather endure months or even years more in Bangkok's notorious Klong Prem prison than return to Australia, where he trusts neither the police nor the judicial system but is wanted as an accused and a witness. Along with one-time NSW Crime Commission assistant director Mark Standen, Kinch was charged by Australian authorities last year with conspiring to import 600kg of pseudoephedrine (used to make the drug ice) into Australia.

Arrested in Bangkok on May 31 last year, two days before Standen and a third man, food importer Bill Jalalaty, were picked up by the Australian Federal Police in Sydney, the pugnacious Kinch decided to stand his ground and resist any attempts to get him back to Australia. He has been resisting ever since.

Yesterday he appeared again in Bangkok's Central Criminal Court, the latest in a series of extradition hearings that have been under way for months, always with an AFP officer in the back of the court, watching the proceedings.

In his first interview with the media since his arrest, and the first he or his alleged co-conspirators have granted to a journalist, Kinch tells Inquirer he will not surrender to Australian pressure.

Kinch, 50, who in the past has been arrested in Australia on drugs charges and admits he has served time in a British jail for armed robbery, says the accusations are rubbish, fabricated by the Australian authorities to justify an expensive two-year investigation that went nowhere. "They spent two years bugging calls, offices, email. They had to justify that in the end. There's nothing there; nobody was doing anything. They couldn't back down, the AFP," he says.

He grimaces, saying he knew Standen but he wasn't a close friend, adding that he would never do anything as stupid as smuggle drugs in cahoots with a senior cop or with Jalalaty, a businessman he has described in unflattering terms. "What kind of lunatic would I be? To trust the deputy of the Crime Commission, and Jalalaty, who I've described as a Mr Bean, a Walter Mitty character. It's one big farce. It's been one thing after another. I didn't even know what pseudoephedrine was until this."

Kinch admits he supplied $1.7 million to Jalalaty to establish a food importing business but denies the money had anything to do with setting up a front for drug importations. "I was trying to do straight things, legal things," he says. "The guy lost the money, that's the end of that."

The case against Kinch, Jalalaty and Standen, who was a former AFP officer as well as being a senior Crime Commission investigator, exploded white-hot last year: a serving senior officer allegedly caught conspiring to smuggle illegal drugs on a vast scale. Standen was a trusted insider with a working knowledge of organised crime in Australia. And now he was accused of conspiring with the enemy.

The nearly simultaneous arrests in Australia, Thailand, the Netherlands and Germany nearly 12 months ago were the culmination of a year-long inquiry. AFP agents and Dutch investigators tapped phones, dipped into emails and monitored drug shipments from as far away as Congo.

Standen has been accused of meeting Kinch, described as a "crucial middleman" with alleged connections to a Dutch drug ring, and Jalalaty in Dubai in 2007 to plot the drug importation. Kinch was allegedly the link to the Netherlands drug syndicate, something he flatly denies. The 600kg of pseudoephedrine, enough to make $120million worth of methamphetamine, or ice, were allegedly intended to arrive in Australia in a container sent from Pakistan and destined for Jalalaty's food import business. The container duly arrived. It was searched. Nothing was found.

Kinch will not talk about anything that may or may not have happened in Dubai, and he says the reason no drugs were found in the container is simply because the drugs never existed, not because they were offloaded somewhere. Standen's lawyer, Gordon Elliot, asked an AFP officer at his client's committal in Sydney last month whether a microscopic examination had been conducted of the container's contents to determine whether minute traces of the drug indicated it had once been present. He says he was told an examination had been done and no traces were found.

Lawyers for the commonwealth Director of Public Prosecutions stalled two days into Standen's committal in February. The magistrate granted an adjournment until next Friday, April 3. "The commonwealth DPP stood up in court and said they don't have the evidence they need," Elliot says. "It appears they don't have the evidence in relation to Mr Standen or Mr Kinch."

Elliot says his client's committal may be dismissed if the prosecutors fail to come up with the evidence on Friday, nearly a year after the arrest of his client. The Crown evidence already runs to 8000 pages, but Kinch insists he and his alleged co-conspirators never mentioned drugs. "It's all interpretation," he says.

The dismissal of Standen's committal could have an immediate effect on Australia's lengthy attempts to extradite Kinch from Thailand. In a statement, the DPP says Standen's committal hearing was adjourned to allow for "the receipt of relevant evidentiary material in admissible form", adding that the length of the adjournment was partly determined by court availability. The statement went on: "The timing of the proceedings against Mr Standen is unrelated to the timing of any proceedings against Mr Kinch."

The British entrepreneur with the greying crew cut has no faith in Australian justice and firmly believes every effort will be made to extradite him, regardless of whether there's "relevant evidentiary material" or not. He is doing everything he can to thwart Australia's bid to haul him back to Sydney. "I'm charged with him (Standen). It's to put the pressure on me so that I would incriminate him, which I've refused to do."

Kinch and his Thai lawyer, Prachaya Vijitpokin, have fought his case for months, since soon after his arrest last May, and it largely has been a matter of contesting documentary evidence supplied by Australia.

The Australian extradition request is not only for the charge of conspiring to import drugs last year but also forcharges first brought in 2003, relating to an alleged attempt to import one tonne of ecstasy in plant-pot bases. Kinch was detained, but the NSW Crime Commission reportedly then withdrew the brief of evidence. Kinch was later named as one of Standen's informants.

"The DPP, not Mark Standen, dropped the charges," says Kinch, who adds he did not know Standen until after the 2003 charges were dropped. "Then they did me for overstaying my visa. I didn't know Mark Standen until well after my arrest. I had no meetings with him until I was acquitted." He insists it's ridiculous to resuscitate charges that he says were dead and buried six years ago. "Any evidence, they had it at that time. There was no new evidence. There's nothing."

Vijitpokin says he is doing battle with a Thai prosecutor assigned to fight the case to extradite Kinch, after the foreign ministry passed on the documents from the Australian Government. Extradition cases typically take at least a year, often two or more, in Thailand and bail is automatically refused. "There are many cases in Thailand," he says. "We cannot rush the case." Vijitpokin recently visited Australia and spoke with Kinch's Sydney solicitor, William O'Brien, who declined to comment to Inquirer.

Kinch says he has been served with a "seizure of assets" form, and transcripts of bugged conversations. "They served the papers on me; transcripts of my conversations with Mark Standen. They hoped I would crack, that I would then decide to join their side," he says. "The problem is, if I win my case, they'll appeal. That'll be another year. They had me for a year from 2003 to 2004. It's almost another year now. I'm a loser all the way around. I can never win. It would be easier to go to Australia, but it's the principle of the matter."

He says the pressure from Australia never lets up. Friends who visit him in Thailand have been followed by mysterious Australians, he says, and since his bank accounts have been frozen he has had to survive on the goodwill of friends and relatives.

In Australia, the ramifications of the arrest of Standen are still echoing through the legal system. Last month, in the District Court in Sydney, the AFP agreed that lawyers representing an accused drug dealer, who was arrested after a sting led by Standen, could see the evidence that will be used against the former senior officer.

Meanwhile, thousands of kilometres away in the Netherlands, 14 suspects also arrested in connection with the 2008 alleged attempted importation to Australia wait for their trials to begin. Allegedly from the drugs ring linked to Kinch, they will appear in court again for a pre-trial hearing on April 10, according to a spokeswoman for the National Public Prosecutor's Office in Rotterdam, who says she expects the trials to begin in October this year, and a verdict by November. "We want to prosecute them all," she adds. The Dutch evidence already runs to 50,000 pages and the Australian brief will be added to the pile.

Several of these 14 defendants, according to Dutch lawyers, also were connected to the earlier investigation in which Kinch was allegedly central to the attempted importation of a tonne of ecstasy into Australia in pot-plant bases. He was arrested in 2005 in connection with this alleged plot. But Kinch says it's obvious he has no charge to answer in connection with the 2005 case because nearly all the Dutch defendants were acquitted. Yet Dutch lawyers say appeals (by the prosecution) are pending by a court in Arnhem. Kinch is apparently expected to be a witness for the defence.

Dutch police reportedly have said they could have charged Kinch in connection with the 2007-08 investigation, codenamed Mayer, but they decided to leave the carriage of his case to Australia. Kinch denies that. "The Netherlands police have said that I'm not a suspect in this case. It's all designed to get me." He says the actions of the Australian authorities are highly suspect and he has written letters of complaint to international human rights bodies.

He says the translation of various documents has been incorrect, elevating suspicion to fact. He cites one example, where he says a phrase "believed to contain drugs" has been translated as "did contain drugs".

"If I was given a fair trial here, I'd win. But there's far too much interference from the Australian embassy. They sent a representative from the embassy, from the AFP, but he wouldn't testify. They don't want to answer any awkward questions. It's a farce."

- The Australian / 2009-03-28

Additional Information - Standen mate gets 18 years

Matthew Benns | November 30, 2008

A CAREER criminal and long-time friend of former NSW Crime Commission assistant director Mark Standen was last week jailed for 18 years for drug smuggling.

John Anderson, 68, had been found guilty for his part in attempting to smuggle more than $11 million in cocaine into Australia inside watertight containers chained to the hulls of cargo ships, including the Tampa.

Anderson's son Michael, 30, was jailed for 10 years for helping his father by buying scuba gear and diving under the cargo vessels to retrieve the drugs.

In the District Court last week judge Leonie Flannery said John Anderson was motivated "by greed, whereas I accept his son's motivation was misguided loyalty".

She said Michael, who had no previous criminal record, believed his father was attempting to smuggle emeralds and had agreed to help in the hope it would draw them closer together.

Earlier this year The Sun-Herald revealed the long friendship between John Anderson and top cop Standen, who is now awaiting trial for his alleged part in an unrelated, $120 million global drug conspiracy.

Their 30-year friendship involved regular visits by Standen to Anderson's Central Coast home. Standen's bail application is due on Wednesday before a committal date is due to be set on December 17. Australian Federal Police officers are currently preparing a brief from material obtained overseas.

The AFP investigation into Standen began in the same month that customs officers in New Zealand intercepted Anderson's cocaine shipment from Central America.

Anderson attempted to ship more than $8 million in cocaine in a sealed container chained to the hull of the Tampa and more than $3 million in cocaine chained under the cargo ship Taronga.

In her summary of the facts Judge Flannery said police had traced calls made by Anderson to a contact in Panama.

A search of his properties found plastic containers, similar to the ones used in the failed smuggling operation, containing traces of cocaine.

She was convinced the smuggling operation was not "just a one-off". Judge Flannery added: "I am satisfied there was a level of sophistication at the Panama end."

Before sentencing him she said Anderson had a long criminal history. But The Sun-Herald has revealed that he has also been quizzed by police over a number of unsolved crimes. There is no suggestion that Standen was involved in these events.

Anderson, who suffers from a series of ailments including hepatitis C, has been questioned over the murder of 18-year-old Trudie Adams on the northern beaches in 1978. Her death has been linked to a string of rapes around the same time.

Police insiders have described links to Anderson as "an underworld mosaic" with the other man suspected of Adams's murder being linked to the 1991 execution of former Australian light-heavyweight boxer and heroin dealer Roy Thurgar.

Anderson was also the last person to see Ante Yelavich alive. He was murdered in 1985.

Source: The Sun-Herald

Additional Information - File 2 - Adam Keith Watt & Radislov Spadina

"The Border Mail" LES KENNEDY 26 Sep, 2008 12:00 AM

A DUTCH organised crime syndicate that allegedly planned to sell $120 million in drugs to the former NSW Crime Commission deputy director Mark Standen was linked yesterday to a Sydney drug gang that planned to manufacture $52.5 million worth of the methamphetamine ice.

Watt assault, left for dead - the extent of his injuries has not been made public

Four alleged principals in the Dutch crime syndicate were named in a statement presented by federal police to the Central Local Court yesterday when two members of the alleged Sydney connection - the former Australian champion kickboxer turned television boxing promoter Adam Keith Watt, 40, and Radislov Spadina, 43, faced drug conspiracy charges.

Watt and Spadina, both from Manly, were arrested in morning raids by police on their homes after a 2½-year covert operation involving police in the Netherlands, Germany, Japan, Britain, Belgium, France and the United Arab Emirates.

The arrests came after the arrest of 15 Dutch members of the accused Amsterdam-based gang in an operation in which the Australian Federal Police arrested Standen, 51, and the Blacktown food wholesaler Bakhos "Bill" Jalalaty, 45. A Briton, James Kinch, 49, was arrested in Thailand.

The court was told that Kinch, who is charged with Standen and Jalalaty with conspiring to import ephedrine in rice packets from Pakistan that was to be used in the manufacture of $120 million worth of ice, was the British go-between for Standen with the Dutch gang.

Four of the alleged Dutch gang members - Louis Aloysius Cornelis Weerden, 43, Jan Plas, 53, Michael Clemm Von Hohenberg, 43, and Thomas van den Berg, 46 - allegedly linked to the Standen drug conspiracy - were again named yesterday in court documents which alleged they had planned another big drug shipment to Sydney last year in a deal with a separate northern beaches drug syndicate.

Spadina was named by the federal police - in documents presented in evidence to the magistrate, Allan Moore - as the alleged head of the Manly drug syndicate.

Additional Information - Mark Standen helped drug criminals get out of jail early

By Charles Miranda and Lisa Davies From: The Daily Telegraph June 24, 2008 12:00AM

Image source "The Daily Telegraph"

TWO of the nation's notorious criminals were freed from jail early after disgraced NSW Crime Commission investigator turned alleged drug trafficker Mark Standen appealed to authorities on their behalf. 

Ian Hall Saxon was Australia's most wanted man in 1993 after he escaped in a van from Long Bay jail where he had been serving a hefty sentence for helping smuggle 10 tonnes of cannabis resin worth $77.5 million into the country.

Saxon - a former multi-millionaire rock promoter who brought some of the world's biggest acts to Australia in the 1980s - was finally caught and served 13 years of an original maximum 24- year sentence. Two weeks ago he was released six months early.

The Daily Telegraph has learned Standen - sacked two weeks ago as assistant director from the embattled NSW Crime Commission after being charged with allegedly conspiring to import chemicals to make $120 million worth of the drug ice - months earlier had written to authorities on Saxon's behalf, acting as a referee and alleging the criminal was "assisting" police.

Federal Home Affairs Minister Bob Debus confirmed he signed Saxon's release after being told the man - who had also been charged with drug offences in the US and jailed in Tahiti for smuggling cocaine - had "provided substantial assistance to authorities".

Image source "The Age" 2008

"I made the decision before I became aware of the serious allegations about Mark Standen," he said yesterday.

"If any criminal activity has taken place in relation to Standen's recommendation in this matter, the full force of the law will be applied."

Mr Debus said all documents relating to Saxon's release would be sent to NSW Police Minister David Campbell.

"It's unlikely the (parole) release can be revoked but the Government's looking at whether it is possible, if it's found corrupt information was provided."

Saxon, 65, is currently living with family in New Zealand.

An inquiry has also been launched into the prison release of another notorious criminal, James Henry Kinch, who was arrested four years ago for allegedly orchestrating a multi-million dollar ecstasy import for distribution in Sydney, Melbourne and Adelaide.

It is understood Standen also allegedly recommended Kinch be released, using the claim he was helping authorities, and days later he fled Australia and regrouped with a criminal cartel in Britain and the Netherlands.

He was arrested in Thailand two weeks ago and is currently awaiting extradition on the original drug charges and also conspiring with Standen to import drugs.

At least 12 other NSW court cases are set to be derailed, with prisoners citing questionable activity by Standen.

Additional Reading File 7

Additional Information - File 5 - PM Interview

PM

Tuesday 3 June 2008

Crime fighter charged with drug conspiracy offences

MARK COLVIN: One of Australia's most senior drug investigators is behind bars tonight, charged with the type of serious offences he usually policed himself.

Prosecutors charged the assistant director of investigations with the New South Wales Crime Commission, Mark Standen, with being part of a international drug conspiracy to import and manufacture millions of dollars worth of the drug ice.

It is alleged that he used his position at the crime fighting agency to commit the offences.

The Australian Federal Police allege that Standen wasn't acting alone, they've charged another Sydney man, Bakhos Jalalaty, charged with the same offences, and 13 other people have been arrested overseas.

Karen Barlow reports.

KAREN BARLOW: Fifty-one-year-old Mark William Standen is one of Australia's top investigators.

His boss is a commissioner of the New South Wales Crime Commission, Phillip Bradley.

PHILLIP BRADLEY: Mr Standen has a long career in law enforcement and a successful career. He is a very capable investigator and he has risen on the back of his performance.

KAREN BARLOW: But Mark Standen is today accused of taking part in what the Australian Federal Police are calling a major and sophisticated international drug smuggling syndicate.

The AFP's deputy commissioner operations, Tony Negus, alleges the plan was to import a large quantity of pseudoephedrine, a chemical which would have later been altered to form the street drug ice.

TONY NEGUS: Around 480 kilograms of ice could have been produced from the 600 kilograms of pseudoephedrine, worth around $120-million on the streets of Australia.

KAREN BARLOW: The total arrests so far are 15, two in Sydney, 12 in the Netherlands and one in Bangkok.

The two Australians, Mark Standen and Bakhos Jalalaty are not described by police as principals in the alleged conspiracy, but a police will allege their crimes took place over a two-year period and police say they have been watching them for a year.

Standen and Jalalaty have been charged with the same three offences: conspiracy to import a commercial quantity of a border-controlled precursor; conspiracy to supply a large commercial quantity of a prohibited drug; and conspiracy to defeat justice.

The last charge refers to how Mark Standen's place of employment, the New South Wales Crime Commission, was allegedly used in the importation conspiracy.

While Standen was also investigating other crimes, he was extensively monitored to allow the case against him to be developed.

The head of the New South Wales Crime Commission, Phillip Bradley.

PHILLIP BRADLEY: We had a great deal of coverage of him through both physical surveillance and electronic surveillance.

KAREN BARLOW: It was a complex and global police investigation that led to the arrests.

The Federal Minister for Home Affairs, Bob Debus, says the Australian Federal Police has had to work closely with other agencies over the past two years.

BOB DEBUS: The operation required the AFP to work closely with Australian jurisdictions and officers from the Netherlands, Pakistan, the United Arab Emirates, the United Kingdom and Thailand.

KAREN BARLOW: Bob Debus says told Parliament that the $120-million police price tag on the drugs is not the whole story.

BOB DEBUS: The AFP has also estimated that if those drugs had reached the community they would have cause a $140-million worth of harm in terms of social and welfare payments, medical treatment and policing.

KAREN BARLOW: The chemicals never made it to Australia, and the whereabouts of the pseudoephedrine is unknown.

Mark Standen and Bakhos Jalalaty are in custody tonight. Their lawyers are expected to apply for bail on separate dates later this month.

Their cases briefly came before Sydney's Central Local Court today, however they were not required to appear before Magistrate Allan Moore.

Mark Standen's barrister Paul King says his client is being separated from other people in cells for his own safety and is in a reasonable state of mind.

PAUL KING: Look, he is obviously stressed and upset about the whole thing. I think it has all taken him by surprise, but he is coping.

KAREN BARLOW: Paul King is concerned about media reporting of Mark Standen.

PAUL KING: I would ask that those people refrain from making comments and remind everybody that at this particular time he has a presumption of innocence and he is entitled to be dealt with in the criminal justice system exactly the same way as anyone else.

MARK COLVIN: Barrister Paul King ending that report from Karen Barlow. 

Addittional reading File 6.

Additional Information - File 4 - QUESTIONS WITHOUT NOTICE Australian Federal Police

Date 03.06.2008 - Link APH

Mr HAYES

Mr HAYES (Werriwa) (2:03 PM) —My question is to the Minister for Home Affairs. Will the minister inform the House of the latest operation involving the Australian Federal Police?


Mr DEBUS


Mr DEBUS (Macquarie) (Minister for Home Affairs) —I thank the honourable member for Werriwa for his question. Members will be pleased to know that an Australian Federal Police investigation spanning several continents has culminated in the arrest of 15 people and the dismantling of a criminal syndicate involved in the global production of narcotics. Nothing could more clearly demonstrate the importance of the AFP’s close relationship with its international law enforcement partners. The operation required the AFP to work closely with Australian jurisdictions and officers from the Netherlands, Pakistan, the United Arab Emirates, the United Kingdom and Thailand. Last week 12 people were arrested in the Netherlands and one in Thailand and yesterday saw the arrest of two people in Sydney, including a senior investigator with the New South Wales Crime Commission, Mark Standen.

It is alleged that these men were part of a conspiracy to import 600 kilograms of the precursor chemical pseudoephedrine with the potential to produce 430 kilograms of methamphetamine—that is, ice—with a wholesale value of $120 million. That is a wholesale value not a street value. The AFP has also estimated that, if those drugs had reached the community, they would have caused $140 million worth of harm in terms of social and welfare payments, medical treatment and policing.

Yesterday, both men were charged with various offences relating to conspiracy to supply and import commercial quantities of a prohibited drug and of perverting the course of justice. The arrest of Mark Standen has not surprisingly generated high media interest but, as the matter is now before the courts, the comments I am able at present to make are rather limited. However, in May last year the investigator became a person of interest to the AFP and since July 2007 the AFP and the New South Wales Crime Commission have been jointly investigating Standen’s alleged involvement in the syndicate. Evidence of his alleged connections to that syndicate came about, as I have said, because of intelligence received from the AFP’s international law enforcement partners as well as through its own investigations. It will be alleged that he used his position to provide advice to the syndicate on law enforcement methods and information on drug enforcement activities. These are allegations that are profoundly serious against someone in such a position.

I am entirely conscious that it is critical to the Australian public to have confidence in our law enforcement agencies. The AFP has managed this highly sensitive investigation with very great professionalism. In fact, Dutch authorities have publicly stated that their belief in the AFP’s capabilities was one of the main reasons that they—that is, the Dutch authorities—allowed such a long and resource intensive investigation to continue in circumstances that would have been, in the absence of such trust, quite untenable. The investigation is ongoing but, on behalf of the Australian government, I congratulate the AFP on its outstanding work in this matter.

Additional Information: R v Dowe [2007] NSWDC 92 - Re Operation Mocha

New South Wales
District Court
__________________________________________________________

CITATION: R v Dowe [2007] NSWDC 92 

HEARING DATE(S): 26/04/07,27/04/07,30/04/07,01/05/07,02/05/07,03/05/07

JUDGMENT DATE: 4 May 2007

JURISDICTION: Criminal

JUDGMENT OF: Murrell SC DCJ

DECISION: Application to exclude evidence refused

CATCHWORDS: Application to exclude evidence - llegality - Impropriety - Obtained - In Consequence of - Reasonable Excuse

   

LEGISLATION CITED:

Customs Act 1901

Crimes Act 1914

Drug Misuse and Trafficking Act 1985 and Regulation

Evidence Act 1995

Law Enforcement (Powers and Responsibilities) Act 2002

Law Enforcement (Controlled Operations) Act 1997

Police Special Provisions Act

CASES CITED:

R v Stevens (1991) 23 NSWLR 75

Robinson v Woolworths Ltd [2005] 64 NSWLR 612

Dowe and Ors v Commissioner of the New South Wales Crime

Commission and Anor [2006] NSWSC 1312

He Kaw Teh v The Queen [1984-1985] 157 CLR 523 at 589

Medina (1995) 84 A Crim R 316 at 322

R v Cornwell [2003] NSW SC 97 at para 25

R V Ladocki [2004] NSWCCA 336 at para 50

PARTIES: Crown David Darley Dowe

FILE NUMBER(S):06/11/0348

COUNSEL: Mr D Staehli (Crown)

SOLICITORS: Mr R Mayne (Accused) 

 _______________________________________________________________

JUDGMENT

The Joint Task Force 1 In October 2004, a syndicate imported a large quantity of cocaine. The drug was buried. A criminal associate of the syndicate, "Tom", became a NSW Crime Commission registered informer. He told the Commission that 7kg of cocaine was buried at Wahroonga. He said that a further large importation was scheduled for February 2005. A joint task force was formed, comprising Commission officers, NSW police and Australian Federal police. The task force was co-ordinated by Mr Standen, Assistant Director of Investigations at the Commission. Mr Standen held appointments as a special Federal officer and as a special constable for NSW. He became "Tom's" principal handler. 2 On 2 February 2005, Mr Standen briefed a meeting of senior Commission and NSW police (including the NSW Police Commissioner) on his "preferred option" in relation to the buried cocaine. Mr Standen advocated that the cocaine be seized and that, if the syndicate from time to time directed Tom to sell the cocaine, then, in order to maintain his credibility with the syndicate pending the importation, Tom should do so. It was understood that the likely outcome was that the cocaine would reach street users. For this reason, the proposal was exceptional, if not unique, as far as State and Federal police practice was concerned. Nevertheless, the meeting adopted Mr Standen's "preferred option". 3 The AFP was not invited to the meeting on 2 February, ostensibly because the supply of drugs was a State matter and the AFP's primary focus was on the Federal issue of importation. When senior AFP officers learned of the supply plan, they conveyed the expected view to Mr Standen, ie that the AFP strongly disapproved of an operation which involved sales to end use. However, because of misunderstanding /miscommunication between senior and midlevel AFP officers and/or because of the blurred line between investigating the forthcoming importation and investigating supply of the already imported cocaine, when the "preferred option" was implemented, AFP officers attached to the joint task force did provide surveillance and other support. 4 On 7 February, the cocaine was removed from it's location at Wahroonga. 5 On 8 February, a controlled operation certificate was issued under the Law Enforcement (Controlled Operations) Act 1997 (NSW), purporting to authorise the sale of 2 kg of cocaine by Tom. A controlled operation authority renders authorised activities "not unlawful". On 8 February, the sale proceeded. 6 At 6.20pm on 22 February, a second NSW controlled operation authority was issued, purporting to authorise Mr Standen and "Tom" to sell 1 kg of cocaine at Newtown on 23 February. 7 It is the Crown case that, on 23 February, a Mr Finch and the accused Mr Dowe drove to Newtown, where they met with "Tom". Mr Finch had a large sum of money, which a co-accused, Mr Hamer, had entrusted to him. "Tom" placed a 1 kg package of cocaine into the boot and removed the money from the boot. The next day, Mr Finch handed the cocaine to Mr Hamer. On instructions from the syndicate, "Tom" handed some of the money to a co-offender. He was instructed to hold the remaining $50,000, and he gave that sum to Mr Standen. 8 The transaction on 23 February is the basis of the third count against Mr Dowe and Mr Hamer. In relation to the first two counts against each accused, the Crown proposes to lead evidence from "Tom" and Mr Finch that, on two earlier occasions, there were similar transactions. 9 Subsequently, the remaining cocaine was sold. Of the 7 kg, police recovered only 1 kg. I infer that the rest was sold to end use. 10 The Supreme Court rejected a challenge to the validity of the controlled operation authorities. That decision is under appeal. Issues 11 (1) On and after 7 February, was the cocaine handled illegally or improperly, at least until 22 February, when the authority was issued (the drug exhibits issue)? (2) Prior to 22 February, did the police have a "reasonable excuse" for possessing /handling the cocaine, or was their possession /handling illegal under s233B of the Customs Act and/or under the Drug Misuse and Trafficking Act 1985 (the drug offence issue)? (3) Was the receipt of monies by "Tom" and Mr Standen unlawful under Commonwealth money laundering provisions (the money laundering issue)? (4) What evidence was "obtained" illegally/improperly or "in consequence of" an illegality /impropriety? (5) Has the Crown established that, despite any illegality/impropriety, the evidence should be admitted (the discretionary issue)? The Drug Exhibits Issue 12 The accused contends that the drug should have been treated as a Federal police exhibit and the failure to deal with it in that way was unlawful and/or improper. Alternatively, the drug should have been treated as a State police exhibit and the failure to deal with it in that way was improper. 13 Commonwealth provisions controlling the importation of narcotic goods complement NSW provisions controlling the possession and supply of such goods in NSW. Generally, the provisions are not inconsistent: R v Stevens (1991) 23 NSWLR 75. However, when police are simultaneously investigating both importers and domestic suppliers, there may be an overlap between the operation of Commonwealth and State provisions. This is such a case. 14 All cocaine within Australia has been imported. The subject cocaine must have been imported into Australia in contravention of the Customs Act 1901: see s233B(1)(a)(iv). At the very least, it was reasonably suspected of having been so imported: see s233B(1)(a)(vi). Therefore, it was a prohibited import to which s233B of the Act applied: s233B(1)(b). 15 As it was a prohibited import, by the operation of s229 (1)(b) of the Customs Act, it was forfeited to the Crown. Having been forfeited under s229(1)(b), it became "special forfeited goods" within the meaning of s183UA(1). 16 Section 203C(1)(a) of the Act empowers an "authorised person" who holds a reasonable suspicion to search for and seize special forfeited goods that are narcotic goods. "Authorised person" includes a police officer: s183UA (1) (d)(ii). If narcotic goods are seized by a person other than a member of the AFP, then that person must, as soon as practicable, deliver the goods into the custody of a member of the AFP: s204(4)(b). 17 In relation to exhibits held by the AFP, the AFP Exhibits Guidelines (Exhibit M) prescribe detailed procedures for handling the exhibits, particularly if the exhibits are drugs or money. Importantly, drug exhibits must be lodged with the AFP Drug Registry and must be destroyed after analysis. 18 On 7 February, when the cocaine was dug up, Mr Mansfield, an AFP officer, bagged it in AFP exhibit bags. A NSW police officer conveyed it to an analyst. Following analysis, it was stored in a safe in Mr Standen's office at the Commission. Other than coincidentally, it was treated neither as an AFP police exhibit nor as a NSW police exhibit. Nor was it logged into the Commission's exhibits register. 19 On and after 7 February, generally, the drug was in the possession and under the immediate control of an AFP officer. Mr Standen was a Federal police officer, as was Mr Mansfield. However, it was by happy coincidence rather than design that, after the drug was seized, it was delivered into the custody of an AFP officer. It was not considered to be goods which had been forfeited to the Commonwealth Crown and it was not treated as such. No consideration was given to following the AFP Exhibits Guidelines, although Mr Standen was aware of the Commonwealth legislation and guidelines. 20 When it came to applying for a controlled operation authority, according to Mr Standen, passing consideration was given to seeking a Commonwealth authority under Part 1AB of the Crimes Act 1914, but that option was rejected because the proposed controlled operation "had the flavour of a State supply". Given that, prior to applying for any controlled operation authority, the AFP had been excluded from the process of determining how to deal with the 7 kg of cocaine, I find that no serious consideration was given to seeking a Commonwealth authority. Had the matter been given serious consideration, then it would have become apparent that no Commonwealth authority could be granted because the cocaine was unlikely to remain under the control of police at the end of the operation: s15M(e) Crimes Act 1914. 21 In short, Mr Standen and other officers attached to the joint task failed to acknowledge that the drug was forfeited to the Commonwealth Crown and failed to treat it in accordance with the AFP Exhibits Guidelines, which apply to Commonwealth drug exhibits. 22 It was not submitted that Mr Standen or any other officer committed an offence by failing to acknowledge the Commonwealth legislation or failing to treat the drug in accordance with the AFP Exhibits Guidelines. At most, these failures constituted improprieties. 23 Prior to seizure of the drug, the decision was taken to deal with it in a way which did have "the flavour of a State supply". Any on-supply of the drug in February 2005, whether by “buy/bust” or otherwise, would have had "the flavour of a State supply" as the drug had been imported months before it came into police possession. Consequently, the NSW regime for handling drug exhibits may have been the more appropriate regime. 24 Under NSW law, police can seize and detain drugs which are prohibited drugs under the Drug Misuse and Trafficking Act: s21(2) (d) of the Law Enforcement (Powers and Responsibilities) Act 2002. If NSW police are in possession of not less than the trafficable quantity of a prohibited drug, the drug must be handled in accordance with Part 3 (now Part 4) of the DMT Regulation. Within 14 days, the drug must be delivered to an analyst: cl 9 (now cl 13). If no charge has been laid, within 21 days an application must be made for destruction of the drug: s39D of the DMT Act. Under s39RA of the DMT Act, the Commissioner may direct that the drug be retained for a controlled operation under the Law Enforcement (Controlled Operations) Act 1997. 25 As a special officer for NSW, Mr Standen had the duties of a NSW police officer: s103 Police Special Provisions Act. From time to time, other NSW police officers handled the drug. Mr Standen was aware of the NSW legislation, but did not consider whether he should process the cocaine in accordance with that legislation. Nor, I infer, did the other NSW police officers who handled the drug. Coincidentally, the drug was delivered to an analyst within the 14 day period required by cl 9. However, no application was made under s39RA of the DMT Act. 26 The failure to process the drug in accordance with NSW drug exhibit procedures was not unlawful. At most, it constituted an impropriety. 27 An "impropriety" within the meaning of s138 of the Evidence Act 1995 involves conduct which is "clearly inconsistent with" "the minimum standards which a society such as ours should expect and require of those entrusted with the powers of law enforcement": Robinson v Woolworths Ltd [2005] 64 NSWLR 612. 28 In Robinson at para 23, Basten JA referred to the suggestion that there must also be "some level of encouragement, persuasion or importunity in relation to the commission of the offence" before there can be an "impropriety". I would have thought that such considerations were more appropriately taken into account under s138(3)(d) or (e), or when considering "minimum standards", but I acknowledge that the law is as Stated by His Honour. 29 It is impossible to apply the reference to "encouragement, persuasion or importunity in relation to the commission of the offence" to the circumstances of this case. In this case, the alleged improprieties are not directly related to the commission of the alleged offences, as was the case in Robinson and the other recent decisions to which I was referred, where the sequence of events was brief and relatively straightforward, and the alleged impropriety was closely associated with an arrest or entrapment. In the circumstances of this case, I assess whether an "impropriety" has occurred by determining whether the relevant conduct was deliberate and was clearly inconsistent with minimum standards. 30 Mr Standen effectively directed the operation. He was conversant with the State and Federal schemes for managing drug exhibits. In my view, his failure to consciously manage the 7 kg of cocaine under either scheme was deliberate conduct which was clearly inconsistent with the minimum standards which our society expects. Prohibited drugs are valuable commodities which are capable of causing great harm to the community. Federal and State schemes for auditing and managing such drugs are critical to the integrity of the criminal justice process and the health of the community. Consequently, there is a strong public interest in ensuring adherence to those schemes. The failure to consciously manage 7 kg of cocaine under one of the schemes is a matter of grave concern. That concern is not assuaged by knowing that, when the drug was seized, it was intended that it would be sold into the market in circumstances where police would lose control of it and it was likely to reach end users. 31 On the question of impropriety, it is not much to the point that Mr Standen was doing what he thought best, or that he utilised safeguards such as videotaping dealings with the cocaine. Unless law enforcement officers adhere to common procedures, the public cannot be assured that the movement of dangerous drugs is adequately supervised. The Drug Offence Issue 32 The accused contended that, both prior to and after the issue of the controlled operation authority on 22 February, the possession and handling of the cocaine was unlawful under the Drug Misuse and Trafficking Act and/or the Customs Act. 33 The Crown conceded that, unless the police and "Tom" could establish a "reasonable excuse" for possession of the drug under s233B(1AAB) of the Customs Act, up until the issue of the authority, their possession contravened s233B (1) (iv) and/or (v) of the Act. 34 In Dowe and Ors v Commissioner of the New South Wales Crime Commission and Anor [2006] NSWSC 1312 (in which the accused challenged the controlled operation authories) at para 104, Hall J summarised relevant authorities concerning the concept of "reasonable excuse". In relation to s233B, His Honour referred to the observation of Brennan J. in He Kaw Teh v The Queen [1984-1985] 157 CLR 523 at 589 that: " an exempting provision is needed to protect persons who, in the course of duty or otherwise acting with innocent motives, would have the mental State required to convict them of an offence ..." 35 In Medina (1995) 84 A Crim R 316 at 322, the Court held that police officers had a "reasonable excuse" for possessing cocaine which was involved in a controlled delivery. The Court noted that the operation in question was not one of a kind which in any way threatened the integrity of the court's processes or the administration of criminal justice in the manner discussed in Ridgeway v The Queen (1995) 184 CLR 19. 36 The need for an exempting provision to excuse police conduct in the course of an investigation has been lessened by the introduction of controlled operation legislation at both State and Federal levels. Nevertheless, there remains some need for such a provision. For example, police need to be protected while they are waiting for a controlled operation authority to be issued. I conclude that, where police are expeditiously dealing with narcotic goods in accordance with appropriate Commonwealth and/or State legislative procedures/policing protocols, they have a "reasonable excuse" for conduct which would otherwise be unlawful. 37 In the present case, accepting that the "preferred option" had "the flavour of a State supply", the proper course was to manage the drug in accordance with the Drug Misuse and Trafficking Regulation and to seek a direction under s 39RA of the Drug Misuse and Trafficking Act 1985. That course was not followed. Prior to 22 February, there was no "reasonable excuse" for the conduct which was otherwise rendered unlawful by s 233B of the Customs Act. 38 Further, had police obtained a direction under s39RA, that direction would have rendered their possession and/or supply of the drug not unlawful under the DMT Act: s10(1)(b1), s25(4)(c) DMT Act. 39 The Crown argued that the police did not contravene the DMT Act by possessing the drug for the purpose of supply (see section 25(1) and the extended s3 definition of "supply") and they could establish a defence to any charge under s29 ("deemed supply" based on possession of a trafficable quantity) because they were in possession of the drug for the purpose of supply in the course of a controlled operation, and any such supply would be not unlawful. 40 In relation to s29, the argument may be sustainable. However, in relation to s25(1), it cannot be sustained. As at 7 February, it was not known whether any controlled operation authority would be sought or granted for 23 February. The authority was only sought after the syndicate instructed "Tom" to supply the drug at Newtown. Further, the argument does not address the fact that possession of the drug was contrary to s10 of the DMT Act. 41 Consistent with my finding that it was appropriate to deal with the drug under State legislation, I find that the existence of a valid NSW controlled operation authority not only provided protection in relation to conduct which would otherwise have involved State offences, but also provided a "reasonable excuse" for what would otherwise have been unlawful conduct under the Customs Act. Consequently, between 7 February and the grant of the controlled operation authority on 22 February, police possession and handling of the drug was illegal but from the grant of the authority it was not unlawful. The Money Laundering Issue 42 Mr Dowe argued that evidence of the collection of money from the boot of the car and payment of the money to the syndicate should be excluded because the money was an "instrument of crime" or the "proceeds of crime" and, in dealing with the money, "Tom" committed an offence against s400.4 of the Criminal Code in relation to which the NSW controlled operation authority provided no protection. 43 The flaw in this argument is that the money was neither an "instrument of crime" nor the "proceeds of crime". The money could only have been an "instrument of crime" if it was used to facilitate the commission of an offence. It could only have been the "proceeds of crime" if it was derived from the commission of an offence. “Tom's” conduct in connection with supplying the cocaine on 23 February was not unlawful because, as far as the DMT Act was concerned, he was protected by the authority and, as far as s233B was concerned, he had a "reasonable excuse". 44 In relation to dealing with the money on 23 February, there was no illegality or impropriety. What Evidence Was "Obtained" Illegally/Improperly Or "In Consequence Of" An Illegality/Impropriety? 45 Challenged evidence will be excluded only where there is a causal connection between the illegality/ impropriety and the obtaining of the impugned evidence or, in other words, the illegality/ impropriety "produced" the challenged evidence: R v Cornwell [2003] NSWSC 97 at para 25, R v Ladocki [2004] NSWCCA 336 at para 50. 46 The impropriety of failing to follow the Federal or State scheme for the management of drug exhibits did not impact upon the events of 23 February, let alone "produce" any significant evidence. On 2 February, the NSW Police Commissioner approved in principle the course of conduct which was followed on 23 February. I infer that, had a s39RA direction been sought, it would have been granted. 47 Nor did the offences against the Customs Act and the DMT Act impact upon the events of 23 February. For practical purposes, the events of 23 February and thereafter were unaffected by the preceding failure to adhere to the NSW scheme for dealing with drug exhibits, which was itself an impropriety, and which resulted in the police possession of drugs being illegal prior to the grant of the controlled operation authority. 48 The accused has not established that any relevant evidence was "obtained" improperly or in contravention of Australian law, or "in consequence of" an impropriety or contravention of an Australian law. Discretion 49 It is not necessary for me to consider the manner in which I might have exercised the discretion under s138 (1), had I been called upon to do so. However, there are many factors which may have militated in favour of admitting evidence of the events of 23 February and thereafter. Inter alia, the relevant offences are very serious and no mala fides has been demonstrated on the part of the police. ______________________________________________________ Additional Information: The Problematic s233B of the Customs Act 1901 2007 DOWE and ANOR v COMMISSIONER OF THE NEW SOUTH WALES CRIME COMMISSION and ANOR [2007] NSWSC 166 (6 March 2007) 2007 Dowe v Commissioner of the New South Wales Crime Commission & Anor; Gedeon v Commissioner of the New South Wales Crime Commission & Anor [2007] NSWCA 296 (19 October 2007) 2006 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   ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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.