Court finds police action lawful in drug-importation case

Defendants Kola and Londono-Gomez appeared before the District Court of South Australia in 2022, jointly charged with the Commonwealth offence of conspiracy to import a commercial quantity of a border-controlled drug

The Commonwealth Director of Public Prosecutions alleged that they conspired with one another and others (including a Mr Yavuz) to import drugs by boat from Panama to Australia. The director further alleged that Kola and Yavuz recruited another person, AZ, to travel to Panama to facilitate the importation

During a pre-trial argument, the defendants asked the court to permanently stay their charges (bring the proceedings to a perpetual standstill)

The primary submission the defendants advanced was that the police, during their investigation, committed the criminal offences of:

• Aiding, abetting, counselling or procuring AZ to commit an offence of breach bail.

• Aiding, abetting, counselling or procuring AZ to commit an offence of being in contempt of court

• Aiding, abetting, counselling or procuring the charged conspiracy to import border-controlled-drug offence

In the alternative, the defendants argued that the police conduct was grossly improper

In finding that there was no basis for a stay of proceedings, the court made it clear that the police did not act unlawfully, nor was their conduct improper

Background

On March 20, 2014, AZ was arrested, charged with unrelated offences and granted bail by SAPOL A condition of his bail was that he not leave the state without permission under the Bail Act.

On May 19, 2014, AZ departed on a flight from Adelaide to Sydney. SAPOL received an alert that AZ intended to depart Australia. AZ was searched by a Customs officer at the request of SAPOL and was permitted to leave Australia thereafter

Police monitored AZ’s telephone communications during the time he was in Panama The CDPP relied upon much of the evidence SAPOL gathered during its surveillance of AZ’s time abroad as proof of the conspiracy charge against the defendants.

AZ failed to board the return flight to Australia on June 5, 2014, as scheduled SAPOL became aware through its surveillance that there were structural issues with the boat arranged to transport the drugs That meant the importation could not occur

On July 21, 2014, AZ returned to Australia and was arrested at the Adelaide Airport on a warrant owing to his failure to attend the Magistrates Court on July 16, 2014 .

Were police complicit in AZ's breach of bail?

It was not in dispute that AZ breached his bail when he left the state The question for the court to determine was whether the police, knowing of AZ’s bail status, aided and abetted his breach of bail by allowing him to leave.

Under section 267 of the Criminal Law Consolidation Act , a person who aids, abets, counsels or procures the commission of an offence is liable to be dealt with as if he or she had committed the principal offence

Generally, an accessory to an offence must intentionally assist or encourage the commission of the crime in some way That is, the general legal principle is that criminal liability does not attach to an omission, except the omission of an act which that person is under a legal obligation to perform.

The court rejected the defendants’ argument that SAPOL’s duty to prevent crime expressed in the Police Regulations, and the oath taken by sworn officers, creates a specific legal duty on police to immediately arrest a person for breaching his or her bail

The court also found that, while the Bail Act empowers a police officer to arrest a person for a breach of bail without a warrant, there is no statutory duty to arrest a person for breach of bail, which would give rise to criminal liability for failing to do so.