Citation: Regina v Peter Ferenc Ladocki [2002] NSWCCA 442
Court: New South Wales Court of Criminal Appeal
Date: 4 November 2002
Judge(s): Sully J, Dunford J, Bell J
Background
The applicant faced trial in the District Court at Newcastle on a charge under the Drug Misuse and Trafficking Act 1985 (NSW). The Crown's case relied substantially on evidence gathered during what purported to be a controlled operation authorised under the Law Enforcement (Controlled Operations) Act 1997 (NSW).
During an extensive preliminary hearing known as a voir dire, the trial judge found that the relevant statutory formalities for the controlled operation had not been observed. This rendered the evidence obtained through that operation unlawfully or illegally obtained. That finding was not contested on appeal.
The trial judge then turned to the question of whether the illegally obtained evidence should nonetheless be admitted at trial. Exercising the discretion under section 138 of the Evidence Act 1995 (NSW), the judge ruled in favour of admitting the evidence. The applicant sought leave to appeal that evidentiary ruling to the Court of Criminal Appeal before the trial concluded.
Legal Issues
- Whether a mid-trial evidentiary ruling by a District Court judge constitutes an interlocutory judgment or order within the meaning of section 5F of the Criminal Appeal Act 1912 (NSW), so as to be susceptible to appeal before conviction.
- Whether leave to appeal against the section 138 discretion ruling should be granted in the circumstances.
Decision
The Court of Criminal Appeal refused leave to appeal, finding that the application failed at the very first hurdle. The Court applied the established principle from The Queen v Steffan (1993) 30 NSWLR 633, in which the Court of Criminal Appeal had held that a ruling on evidence made in advance of or during a trial is not an interlocutory judgment or order within the meaning of section 5F.
The Court in Steffan had further observed that even if such a ruling were capable of falling within section 5F, the fact that any evidentiary ruling can always be altered during the trial means that leave would only be granted in unusual circumstances. No such unusual circumstances were identified here.
Sully J, with whom Dunford J and Bell J agreed, treated the Steffan principles as authoritative and determinative. The underlying policy rationale is the longstanding reluctance of appellate courts to allow criminal prosecutions to be interrupted by interlocutory appeals prior to conviction and sentence. Leave to appeal was accordingly refused by all three judges.
Orders Made
- Leave to appeal refused.
Key Takeaways
- A ruling on evidence made before or during a criminal trial in the District Court is not an interlocutory judgment or order within the meaning of section 5F of the Criminal Appeal Act 1912 (NSW), and therefore does not attract an appeal as of right to the Court of Criminal Appeal.
- Even where section 5F could theoretically apply to such a ruling, the courts maintain a strong policy against interrupting criminal prosecutions with interlocutory appellate procedures before conviction and sentence.
- The fact that a trial judge's evidentiary ruling can be altered at any point during the trial weighs against granting interlocutory leave to appeal in all but unusual circumstances.
- In confirming the Steffan principles, the Court of Criminal Appeal reaffirmed the primacy of the trial judge's authority over evidentiary decisions in the course of a criminal trial.
- A finding that evidence was illegally obtained under the Law Enforcement (Controlled Operations) Act 1997 (NSW) does not automatically result in exclusion; the trial court retains a discretion under section 138 of the Evidence Act 1995 (NSW) to admit such evidence, and that discretion is not readily reviewable mid-trial.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A
- Law Enforcement (Controlled Operations) Act 1997 (NSW)
- Evidence Act 1995 (NSW), s 138
Cases:
- The Queen v Steffan (1993) 30 NSWLR 633