Citation: Regina v Peter Ferenc Ladocki [2004] NSWCCA 336
Court: NSW Court of Criminal Appeal
Date: 1 October 2004
Judge(s): Mason P, Sully J, Sperling J
Background
The appellant was convicted by jury of supplying heroin on three or more occasions within a period of 30 consecutive days, an offence under s 25A of the Drug Misuse and Trafficking Act 1985. He was sentenced to 7 years and 6 months imprisonment with a non-parole period of 5 years on that count. He also pleaded guilty to a separate charge of supplying heroin and received a cumulative sentence of 4 years and 6 months with a 3-year non-parole period.
The Crown's case rested on the evidence of a registered police informant, referred to as "Mr Brown," who conducted three supervised purchases of heroin at the appellant's car yard in November 2001. Those transactions were conducted under an Authority to Conduct a Controlled Operation obtained from the Deputy Commissioner of Police under the Law Enforcement (Controlled Operations) Act 1997. The purchases were recorded through an authorised listening device, and the appellant was later arrested with heroin and one of the marked banknotes used in the controlled buys.
The central issue on appeal was that the police failed to disclose in their application for the Authority that Mr Brown was a heroin addict, and that he had been under the influence of heroin at the time of the first controlled purchase. The appellant argued this non-disclosure rendered the evidence illegally or improperly obtained, and that the trial judge had wrongly exercised the discretion under s 138 of the Evidence Act 1995 to admit it.
Legal Issues
- Whether the failure to disclose the informant's heroin addiction in the controlled operation application constituted an illegality or impropriety such that the evidence was obtained in breach of an Australian law or the Law Enforcement (Controlled Operations) Act 1997
- Whether the trial judge erred in exercising the discretion under s 138 of the Evidence Act 1995 to admit the evidence obtained through the controlled purchases
- Whether the sentences imposed were manifestly excessive
Decision
On the evidence admissibility ground, Mason P (with whom Sully and Sperling JJ agreed) held that the Law Enforcement (Controlled Operations) Act 1997 does not express a purpose that any breach of the relevant code by the applicant officer automatically invalidates an Authority. The non-disclosure of Mr Brown's addiction, while potentially a breach of the application requirements, did not render the Authority void or the evidence obtained under it illegal.
On the s 138 discretion, the court found no demonstrated error in the trial judge's exercise of the discretion to admit the evidence. The appellant's argument amounted to an invitation for the Court of Criminal Appeal to re-exercise the discretion from the beginning, which the court declined to do. The judge's ruling from the lengthy voir dire inquiry was accepted without further argument at the substantive trial, and no basis to disturb it was established on appeal.
On sentence, the court rejected the submission that the sentences were manifestly excessive. The sentencing judge had correctly identified the gravamen of the s 25A offence as lying in the repeated acts of supply within the closed statutory period, and had appropriately considered the fact that the appellant was serving his sentence in protective custody. No particular error in reasoning or failure to consider relevant factors was identified.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted, but appeal dismissed
Key Takeaways
- Under the Law Enforcement (Controlled Operations) Act 1997, not every breach of the application requirements by a police officer will invalidate an Authority to Conduct a Controlled Operation; the legislation does not express such a broad purpose.
- In dismissing the conviction appeal, the Court of Criminal Appeal affirmed that a challenge to a trial judge's s 138 discretion must identify a specific error in its exercise; an appellate court will not simply re-exercise the discretion afresh on the same material.
- A failure to disclose a police informant's drug addiction in the controlled operation application did not, on the facts here, render the resulting evidence illegally or improperly obtained within the meaning of s 138 of the Evidence Act 1995.
- Protective custody, while a mitigating circumstance relevant to the experience of imprisonment, did not require any significant reduction to otherwise appropriate sentences on these facts.
- The central character of a s 25A offence under the Drug Misuse and Trafficking Act 1985 lies in the pattern of repeated supply within the statutory period, and the low purity or relatively modest size of individual transactions does not substantially reduce the seriousness of the offending.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 138 (discretion to exclude improperly or illegally obtained evidence)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1) and 25A (supply of prohibited drugs; offence of ongoing supply)
- Law Enforcement (Controlled Operations) Act 1997 (NSW), ss 5 and 6 (applications for and determination of controlled operation authorities)
- Justices Act 1902 (NSW), s 51A
Cases:
- Ridgeway v The Queen (1995) 184 CLR 19 (High Court authority on entrapment and the public policy discretion to exclude evidence of offences procured by unlawful law enforcement conduct)