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1. The author of the
communication, dated 24 April 2002, is David Nicholas, born in 1941 and
currently serving sentence of imprisonment in Port Phillip Prison. He claims
to be the victim of a violation by Australia of article 15, paragraph 1, of
the Covenant. Without specifying articles of the Covenant, he also alleges
that medical treatment he is provided in detention falls short of
appropriate standards. He is represented by counsel. The Covenant and the
Optional Protocol entered into force for the State party on 13 November 1980
and 25 December 1991.
THE FACTS AS PRESENTED
2.1 On 23 September 1994, Thai and Australian law enforcement officers
conducted a "controlled importation" of a substantial (trafficable) quantity
of heroin. A Thai narcotics investigator and a member of the Australian
Federal Police (AFP) traveled from Bangkok, Thailand, to Melbourne,
Australia, to deliver heroin which had been ordered from Australia. After
arrival, the Thai investigator, operating in conjunction with the AFP, made
a variety of calls arranging for handover of the narcotics, which were duly
collected by the author and a friend.
2.2 On 24 September 1994, the author and his friend were arrested shortly
after handover of the narcotics, and charged on a variety of federal
offences under the Customs Act, as well as State offences. An ingredient of
the federal offences was that the narcotics were imported into Australia "in
contravention of [the federal Customs Act]". [FN1] In April 1995, the High
Court of Australia handed down its decision in the unrelated case of
Ridgeway v The Queen, [FN2] concerning an importation of narcotics in 1989,
where it held that that evidence of importation should be excluded when it
resulted from illegal conduct on the part of law enforcement officers.
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[FN1].Section 233B(1)(c) of the Customs Act provides: "Any person who: (c)
without reasonable excuse (proof whereof shall lie upon him) has in his
possession any prohibited imports to which this section applies which have
been imported into Australia in contravention of this Act:... shall be
guilty of an offence".
[FN2] (1995) 184 CLR 19 (High Court of Australia).
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2.3 At arraignment and re-arraignment in October 1995 and March 1996, the
author pleaded not guilty on all counts. It was uncontested that the law
enforcement officers had imported the narcotics into Australia in
contravention of the Customs Act.
2.4 In May 1996, at a pre-trial hearing, the author sought a permanent stay
of the proceedings on the federal offences, on the basis that (as in
Ridgeway v The Queen) the law enforcement officers had committed an offence
in importing the narcotics. On 27 May 1996, the stay was granted, however
leaving the State offences unaffected.
2.5 On 8 July 1996, the federal Crimes Amendment (Controlled Operations) Act
1996, which was passed in response to the High Court's decision in Ridgeway
v The Queen, entered into force. Section 15X [FN3] of the Act directed the
courts to disregard past illegal conduct of law enforcement authorities in
connection with the importation of narcotics. On 5 August 1996, the Director
of Public Prosecutions applied for the stay order to be vacated. In turn,
the author challenged the constitutionality of section 15X of the Act. On 2
February 1998, the High Court, by a majority of five justices to two, upheld
the constitutional validity of the amending legislation as well as the
validity of lifting the stay on prosecution in the author's case. The matter
was thus remitted to the County Court for further hearing.
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[FN3] The full text of section 15X of the Act provides, in material part:
"In determining, for the purposes of a prosecution for an offence against
section 233B of the Customs Act 1901 or an associated offence, whether
evidence that narcotic goods were imported into Australia in contravention
of the Customs Act 1901 should be admitted, the fact that a law enforcement
officer committed an offence in importing the narcotic goods, or in aiding,
abetting, counseling, procuring, or being in any way knowingly concerned in
their importation, is to be disregarded, if: (a) the law enforcement
officer, when committing the offence, was acting in the course of duty for
the purposes of a [duly exempted] controlled operation ..."
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2.6 As a result, on 1 October 1998, the County Court lifted the stay order
and directed that the author be tried. On 27 November 1998, he was convicted
of one count of possession of a trafficable quantity of heroin and one count
of attempting to obtain possession of a commercial quantity of heroin. The
Court sentenced him to 10 years' imprisonment on the first count and 15
years' imprisonment concurrently on the second count. The total effective
sentence was thus 15 years' imprisonment, with possibility of release on
parole after 10 years. On 7 April 2000, the Victoria Court of Appeal
rejected the author's appeal against conviction, but reduced the sentence to
12 years' imprisonment, with a possibility of release on parole after 8
years. On 16 February 2001, the High Court refused the author special leave
to appeal.
THE COMPLAINT
3.1 The author complains that he is the victim of an impermissible
application of a retroactive criminal law, in violation of article 15,
paragraph 1, of the Covenant. Were it not for the introduction of the
retroactive legislation, he would have continued to enjoy the effect of a
permanent stay in his favour. The effect of the legislation was to direct
courts, to the detriment of the author, to disregard a past fact that in
Ridgeway v The Queen was determinative of a decision to exclude evidence.
The author points out that, for all material purposes, the relevant illegal
conduct in Ridgeway v The Queen was identical to his own subsequent conduct.
The violation is exacerbated in that, during his trial after withdrawal of
the stay, a central element of the offence for which he was convicted was
criminal conduct on the part of law enforcement authorities.
3.2 The author refers to jurisprudence of the European Court of Human Rights
for the proposition that a law cannot be retroactively applied to an
accused's detriment. [FN4] Similarly, ational jurisdictions have found
impermissible the removal, whether by the courts or by legislation, after
the date of a criminal act, of a defence available at the time the offence
was committed. [FN5] By contrast, in Australian law, the presumption against
retrospective operation of criminal law is confined to substantive matters,
and does not extend to procedural issues, including issues of the law of
evidence.
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[FN4] Ecer et al. v Turkey Applns. 29295/95 and 29363/95; judgment of 27
February 2001 and Kokkinakis v Greece Series A No. 260-A, 22; judgment of 25
May 1993.
[FN5] Kring v Missouri (107 US 221), Dobbert v Florida (432 US 282) and
Bouie v Columbia (378 US 347) (United States' Supreme Court).
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3.3 The author thus argues that the prohibition against retroactive criminal
laws covers not only the imposition, aggravation or re-definition of
criminal liability for earlier conduct so liable, but also laws that adjust
the evidentiary rules required to secure a conviction. Alongside these
classes of laws are fundamental requirements that there be certainty in the
law, and that an accused ought not be deprived of a benefit of a law to
which he was previously entitled. These elements are necessary in order to
secure the individual adequate protection against arbitrary prosecution and
conviction, and any deprivation thereof would constitute a breach of article
15, paragraph 1, of the Covenant.
3.4 As a result of the above, the author requests that the Committee require
Australia to provide him with an effective remedy for the violation
suffered, including immediate release, compensation for the violation
suffered, and to take steps to ensure that similar violations do not occur
in the future.
3.5 The author further contends, without raising any articles of the
Covenant, that during his incarceration (four years at the time of
submission of the communication) he has suffered serious health problems:
these included an attack of bacterial endocartitis (on an already defective
heart valve) and removal of an arachnoid cyst resulting in a prostatic
enlargement requiring careful treatment to avoid further bacterial attack.
As his first attach of endocartitis occurred in the Port Phillip Prison
medical unit, he submits that his desire not to be treated there is
warranted.
3.6 As to the admissibility of the communication, he argues that all
domestic remedies reasonably open to him have been exhausted and points out
that the principles of article 15 have neither constitutional nor common law
protection in the State party. He argues that any application to the Human
Rights and Equal Opportunity Commission would be futile and ineffective as
it cannot afford binding relief in case of a violation; it can only offer
non-binding recommendations. Alternatively, the author argues that any
application of a domestic remedy would be unduly prolonged. He also confirms
that the same matter has not been submitted for examination under any other
procedure of international investigation or settlement.
THE STATE PARTY'S SUBMISSIONS ON ADMISSIBILITY AND MERITS
4.1 The State party, by submissions of 20 November 2002, disputes the
admissibility and merits, respectively, of the communication. As to a
factual clarification, the State party points out that the "controlled
operation" conducted in the author's case took place, as was the then
current practice, in accordance with the terms of a 1987 ministerial
agreement relating to such operations and with detailed Australian Federal
Police guidelines. In advance of an operation, a request was made from the
Customs Service to the Federal Police to exempt law enforcement officers
from detailed customs scrutiny. It was understood, at the time, that such an
approach would not jeopardize prosecutions of alleged narcotics traffickers
as such evidence of illegal importation had been held to be admissible
evidence in other common law jurisdictions.
4.2 The State party argues that the communication is inadmissible ratione
materiae. It argues that the plain meaning of article 15, paragraph 1, is to
proscribe laws seeking retrospectively to make acts criminal that were not
offences at the time they were committed. However, as the situation was
interpreted by the High Court, the author was convicted under the criminal
offence of section 233(1)(b) of the Customs Act, a provision that existed at
the time of his arrest and trial.
4.3 The State party argues that section 15X of the amending legislation is
not a criminal offence, imposing liability for any behaviour. No person can
be charged or convicted with an offence against it, nor does it alter any
elements of a criminal offence; rather, it is a procedural law regulating
the conduct of trials. The State party refers to the Committee's deference
to the national courts on questions of the proper interpretation of domestic
law, [FN6] and argues that if the Committee accepts (as it would be
appropriate to do) the High Court's classification of the amending law as a
procedural act not going to the elements of any offence, then no issues
under article 15, paragraph 1, are raised.
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[FN6] Maroufidou v Sweden, Communication No. 58/1979, Views adopted on 9
April 1981.
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4.4 The State party rejects the author's contention that article 15,
paragraph 1, extends beyond a prohibition on retrospective criminal laws to
cover any laws operating retrospectively to the disadvantage or detriment of
an accused. It submits that this interpretation is not supported by the
ordinary meaning of the text of the article, which prohibits laws that seek
retrospectively to make acts or omissions criminal (that is, punishable by
law), when those acts or omissions were not criminal at the time they were
committed. Nor is the author's view supported by the travaux préparatoires
of the Covenant, which suggest that the objects and purposes of this
provision were to prohibit the extension of the criminal law by analogy, to
prohibit the retrospective creation of criminal offences, and to ensure that
criminal offences were clearly stated in law. [FN7] Equally, in the case of
Kokkinakis v Greece cited by the author, the European Commission referred
specifically to "criminal law", rather than any law, being covered by
article 7 of the European Convention on Human Rights when it stated that the
"retrospective application of the criminal law where it is to the accused's
detriment" is prohibited. As the amending law in the present case does not
amount to such a criminal law, the author's case raises no issue under
article 15, paragraph 1.
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[FN7] The State party refers to proceedings in the Third Committee (1960),
where "Many representatives were in favour of the text submitted by the
Commission on Human Rights. The draft article embodies the principle nullum
crimen sine lege, and prohibited the retroactive application of criminal
law. It was pointed out that there could be no offences other than those
specified by law, either national or international." M Bossuyt: Guide to the
Travaux Préparatoires of the International Covenant on Civil and Political
Rights, 1987, at 323.
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4.5 As to the merits, the State party refers to the arguments made above
with respect to the admissibility of the case, in particular that the
relevant "criminal offence" remained at all times the unchanged provisions
of section 233(1)(b) of the Customs Act, and advances further contentions
for the proposition that no violation of article 15, paragraph 1, of the
Covenant has occurred. The State party contends that the amending
legislation, as a procedural law, merely affected the admissibility of
certain evidence in the author's trial.
4.6 The State party further argues that the decision in Ridgeway v The Queen
did not create or recognize any "defence"; rather, it concerned the exercise
of a court's discretion to exclude certain forms of evidence on public
policy grounds. The exercise of a court's discretion to exclude certain
evidence may affect a prosecution's outcome, but an evidentiary rule is not
the same as a "defence", which is an issue of law or fact that, if proved,
relieves a defendant of liability. It follows that if the judgment in
Ridgeway v The Queen did not introduce or recognize a defence, then the
amending legislation did not remove or vary the existence of any defence.
4.7 The State party also points out that after the amending legislation the
courts retain a discretion to exclude evidence which would be unfair to an
accused or to the trial process. It also notes that its High Court rejected
the notion that the amending legislation was directed at the author, with
the judgment of the Chief Justice observing that it did not direct the court
to find any particular person guilty or innocent, and that its effect was
merely to increase the amount of evidence available to the court.
4.8 As to the author's health concerns, the State party disputes the
relevance of these issues to the claim under article 15. The State party
observes that the St Vincent Correctional Health Service, supplying
extensive primary and secondary medical care to Port Phillip prison,
provides inter alia 24 hour availability of medical and nursing staff, a
20-bed in-patient ward at the prison, resuscitative facilities (including
defibrillation), bi-weekly visits by a consultant physician, and ready
availability of transfer in the event of major cardiac problems to St
Vincent's Hospital (possessing a purpose-built 10-bed in-patient ward).
These health services comply with all Australian standards, and the State
party refutes any suggestion the author is receiving any less than the
utmost care and professional treatment.
THE AUTHOR'S COMMENTS AND THE STATE PARTY'S FURTHER SUBMISSION
5.1 By letter of 28 March 2003, the author disputed the State party's
submissions. In response to the State party's invitation to the Committee to
defer to the High Court's assessment of domestic law, the author argues (i)
that the Court's powers are circumscribed by Australian law inconsistent
with the Covenant, (ii) that the High Court dealt a question of
constitutional interpretation rather than the issues under the Covenant
presently before the Committee, and (iii) that the authors are not
contending that domestic law had been improperly applied, as in Maroufidou v
Sweden, [FN8] but rather that domestic law is inconsistent with the
Covenant.
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[FN8] Op.cit.
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5.2 The author disputes that, on the plain meaning of article 15, paragraph
1, no issue arises under the Covenant. Due to the illegal conduct of the
police, an essential element of the offence (an "act or omission" in the
terms of the article) could not, based on the criminal law applicable at the
time of the offence, be made out. Thus, his conduct did not and could not
constitute a criminal offence at the time of the commission of the alleged
offence and article 15, paragraph 1, comes into play.
5.3 The author points out that, in contrast to his own submissions, the
State party has advanced no international law to support its narrow
construction of article 15, paragraph 1, as applicable solely to the offence
described in section 233B of the Customs Act. The author emphasizes that if
the legislature is barred from enacting retroactive criminal laws, it must
also be barred from achieving the same result in practice by criminal laws
that are labeled "procedural".
5.4 In the author's view, it is "artificial" in view of the actual effect on
the author and in ignorance of the legislative intent lying behind the
amending legislation to deny the existence of a retrospective criminal
effect in circumstances where otherwise inadmissible evidence of an
essential element of the offence is brought into play. Such an argument
impermissibly elevates form over substance, for, on any view, the amending
legislation - while ignoring the illegal acts of the State party's officers
- changed a criminal law to the accused's detriment (whether by altering the
law relating to the elements of the offence or by attempting to legalise
otherwise illegal police conduct).
5.5 The author argues that Covenant safeguards should be rigorously applied
in the light of the serious consequences for the individual and the
possibilities for abuse. Because under Australian law, the seriousness of an
offence and the concomitant sentence are partly determined by the quantity
of drugs involved, State officers on "controlled operations" can
pre-determine the potential offences and sentencing range by importing
specific amounts. This is particularly significant in the author's case, as
despite no evidence of communications or orders placed by him, he was
sentenced to a serious penalty of 12 years' imprisonment, clearly influenced
by the amounts of narcotics involved.
5.6 As to health issues, the author states that he recently completed
radiotherapy treatment for mid-range prostate cancer, and is awaiting the
results. If positive, he will then be operated upon for a hernia and
hydrocele condition.
5.7 In a subsequent submission of 6 August 2003, the State party provided
certain additional comments on the author's submissions. This new submission
was received on the very day that the Committee, at its 78th session, was
discussing its Views in the case. In order to provide the author with an
opportunity to respond to the State party's new submission, the
consideration of the case was deferred. No further comments have been
received from the author.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its Rules of Procedure,
decide whether or not the complaint is admissible under the Optional
Protocol to the Covenant.
6.2 The Committee has ascertained that the same matter is not being examined
under another procedure of international investigation or settlement for the
purposes of article 5, paragraph 2 (a) of the Optional Protocol.
6.3 As to the issues of the standard of medical care provided to the author,
the Committee, taking into account the responses of the State party to the
points advanced by the author, considers that the author has failed to
substantiate, for the purposes of admissibility, the contention that the
nature of medical treatment provided to him raises an issue under the
Covenant. This aspect of the communication is accordingly inadmissible under
article 2 of the Optional Protocol.
6.4 As to the arguments relating to exhaustion of domestic remedies that
have been advanced by the author, the Committee observes that, given the
absence of the State party's invocation of any such ground of
inadmissibility, it need not further address these issues.
6.5 Regarding the State party's argument that the communication falls
outside the scope of article 15, paragraph 1, of the Covenant, properly
construed, and is thus inadmissible ratione materiae, the Committee observes
that this argument raises complex questions of fact and law which are best
dealt with at the stage of the examination of the merits of the
communication.
6.6 In the absence of any other obstacles to the admissibility of the claim
under article 15, paragraph 1, of the Covenant, the Committee declares this
portion of the communication admissible and proceeds to its consideration of
the merits of the claim.
CONSIDERATION OF THE MERITS
7.1 The Human Rights Committee has considered the present communication in
the light of all the information made available to it by the parties, as
provided in article 5, paragraph 1 of the Optional Protocol.
7.2 Before addressing the merits of the author's claim under article 15,
paragraph 1, of the Covenant, the Committee notes that the issue before it
is not whether the possession by the author of a quantity of heroin was or
could under the Covenant permissibly be subject to criminal conviction
within the jurisdiction of the State party. The communication before the
Committee and all the arguments by the parties are limited to the issue
whether the author's conviction under the federal Customs Act, i.e. for a
crime that was related to the import of the quantity of heroin into
Australia, was in conformity with the said provision of the Covenant. The
Committee has noted that the author was apparently also charged with some
state crimes but it has no information as to whether these charges related
to the same quantity of heroin and whether the author was convicted for
those charges.
7.3 As to the claim under article 15, paragraph 1, the Committee observes
that the law applicable at the time of that the acts in question took place,
as subsequently held by the High Court in Ridgeway v The Queen, was that the
evidence of one element of the offences with which the author was charged,
that is to say, the requirement that the prohibited materials possessed had
been "imported into Australia in contravention of the Customs Act", was
inadmissible as a result of illegal police conduct. As a result, an order
staying the author's prosecution was entered, which was a permanent obstacle
to the criminal proceedings against the author on the (then) applicable law.
Subsequent legislation, however, directed that the evidence of illegal
police conduct in question be regarded as admissible by the courts. The two
issues that thus arise are, firstly, whether the lifting of the stay on
prosecution and the conviction of the author resulting from the admission of
the formerly inadmissible evidence is a retroactive criminalization of
conduct not criminal, at the time it was committed, in violation of article
15, paragraph 1, of the Covenant. Secondly, even if there was no proscribed
retroactivity, the question arises whether the author was convicted for an
offence, the elements of which, in truth, were not all present in the
author's case, and that the conviction was thus in violation of the
principle of nullum crimen sine lege, protected by article 15, paragraph 1.
7.4 As to the first question, the Committee observes that article 15,
paragraph 1, is plain in its terms in that the offence for which a person is
convicted to be an offence at the time of commission of the acts in
question. In the present case, the author was convicted of offences under
section 233B of the Customs Act, which provisions remained materially
unchanged throughout the relevant period from the offending conduct through
to the trial and conviction. That being so, while the procedure to which the
author was subjected may raise issues under other provisions of the Covenant
which the author has not invoked, the Committee considers that it therefore
cannot conclude that the prohibition against retroactive criminal law in
article 15, paragraph 1, of the Covenant was violated in the instant case.
7.5 Turning to the second issue, the Committee observes that article 15,
paragraph 1, requires any "act or omission" for which an individual is
convicted to constitute a "criminal offence". Whether a particular act or
omission gives rise to a conviction for a criminal offence is not an issue
which can be determined in the abstract; rather, this question can only be
answered after a trial pursuant to which evidence is adduced to demonstrate
that the elements of the offence have been proven to the necessary standard.
If a necessary element of the offence, as described in national (or
international) law, cannot be properly proven to have existed, then it
follows that a conviction of a person for the act or omission in question
would violate the principle of nullum crimen sine lege, and the principle of
legal certainty, provided by article 15, paragraph 1.
7.6 In the present case, under the State party's law as authoritatively
interpreted in Ridgeway v The Queen and then applied to the author, the
Committee notes that it was not possible for the author to be convicted of
the act in question, as the relevant evidence of the unlawful import of
narcotics by the police was inadmissible in court. The effect of the
definitive interpretation of domestic law, at the time the author's
prosecution was stayed, was that the element of the crime under section 233B
of the Customs Act that the narcotics had been imported illegally, could not
be established due to the fact that although the import had been based on a
ministerial agreement between the authorities of the State party exempting
import of narcotics by the police from customs scrutiny, its illegality had
not technically been removed and the evidence in question was hence
inadmissible.
7.7 While the Committee considers that changes in rules of procedure and
evidence after an alleged criminal act has been committed, may under certain
circumstances be relevant for determining the applicability of article 15,
especially if such changes affect the nature of an offence, it notes that no
such circumstances were presented in the author's case. As to his case, the
Committee observes that the amending legislation did not remove the past
illegality of the police's conduct in importing the narcotics. Rather, the
law directed that the courts ignore, for the evidentiary purposes of
determining admissibility of evidence, the illegality of the police conduct.
Thus, the conduct of the police was illegal, at the time of importation, and
remained so ever since, a fact unchanged by the absence of any prosecution
against the officers engaging in the unlawful conduct. In the Committee's
view, nevertheless, all of the elements of the crime in question existed at
the time the offence took place and each of these elements were proven by
admissible evidence by the rules applicable at the time of the author's
conviction. It follows that the author was convicted according to clearly
applicable law, and that there is thus no violation of the principle of
nullum crimen sine lege protected by article 15, paragraph 1.
8. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the facts before it do not disclose a violation
of article 15, paragraph 1, of the Covenant.
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[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.] |
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