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Court of Criminal Appeal 19 February 2009

Dowe v R

[2009] NSWCCA 23

Also reported as (2009) 193 A Crim R 220
Drugs
CRIMINAL LAW APPEAL AND NEW TRIAL MISCARRIAGE OF JUSTICE ILLEGALLY OBTAINED EVIDENCE

Citation: Dowe v R [2009] NSWCCA 23
Court: New South Wales Court of Criminal Appeal
Date: 19 February 2009
Judge(s): Tobias JA, James J, Price J

Background

The appellant was convicted in the District Court of knowingly taking part in the supply of a commercial quantity of cocaine, contrary to the Drugs Misuse & Trafficking Act 1985 (NSW). The conviction arose from a controlled operation conducted by a Joint Task Force comprising NSW Police, the Australian Federal Police, and the NSW Crime Commission. Under that operation, a registered informer supplied 1 kg of cocaine to persons connected with the appellant, who was observed participating in the transaction and captured on intercepted phone calls discussing the quality of the drugs.

The controlled operation was authorised on 22 February 2005 by the Chief Executive Officer of the NSW Crime Commission under the Law Enforcement (Controlled Operations) Act 1997 (LECO Act). However, following a separate line of litigation, the High Court subsequently ruled that the authority issued for the operation was invalid, because the CEO of the Crime Commission did not have the power to grant it under the LECO Act.

The appellant appealed against his conviction on the sole ground that the invalidity of the controlled operation authority meant that the evidence obtained through it had been illegally obtained and should not have been admitted at trial, resulting in a miscarriage of justice.

  • Whether evidence obtained through a controlled operation should be excluded when the authority approving that operation was later found to be invalid.
  • Whether the trial judge's exercise of discretion to admit the evidence under s 138 of the Evidence Act 1995 was vitiated by the subsequent High Court finding of invalidity.
  • Whether a new trial was warranted to allow the appellant to re-agitate the admissibility of the evidence in light of the High Court's decision.
  • Whether evidence gathered before the controlled operation authority was granted (the pre-22 February evidence) was affected by the subsequent invalidity finding.

Decision

The Court of Criminal Appeal dismissed the appeal unanimously, with James J and Price J agreeing with the reasons of Tobias JA. The central finding was that, even accepting the authority was invalid, this did not inevitably require exclusion of the evidence obtained through the operation.

The Court applied the discretionary framework under s 138 of the Evidence Act 1995, which requires a balancing exercise when evidence has been obtained illegally or improperly. A critical factor in that exercise was that the law enforcement officers who conducted the operation held a genuine and bona fide belief that the authority was valid at the time they acted. There was no suggestion of deliberate wrongdoing or bad faith on their part.

The Court considered it inevitable that, had the s 138 discretion been re-exercised at a new trial with knowledge of the invalidity, the evidence would still have been admitted. Ordering a new trial solely to allow re-agitation of an admissibility argument that would inevitably fail would, in the Court's view, serve no purpose. Accordingly, no substantial miscarriage of justice had occurred.

On the pre-22 February evidence (gathered before the authority was granted), the Court found the invalidity of the later authority had no conceivable bearing on admissibility rulings already made in relation to that earlier evidence. No challenge had been mounted at the appeal to those earlier rulings.

Orders Made

  • Appeal against conviction dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the subsequent invalidation of a controlled operation authority does not automatically require exclusion of evidence gathered under that authority.
  • Under s 138 of the Evidence Act 1995, the bona fide belief of law enforcement officers in the lawfulness of a controlled operation is a significant factor weighing in favour of admitting evidence, even where that operation is later found to have been unauthorised.
  • A new trial will not be ordered merely to allow re-litigation of an admissibility question where the Court is satisfied the outcome of that re-litigation would inevitably be the same.
  • The invalidity of an authority issued during an investigation does not retrospectively infect admissibility rulings on evidence gathered before that authority was granted.
  • Special leave to appeal to the High Court was dismissed on 2 October 2009, leaving the Court of Criminal Appeal's reasoning undisturbed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth)
- Customs Act 1901 (Cth)
- Drugs Misuse & Trafficking Act 1985 (NSW)
- Evidence Act 1995 (NSW), s 138
- Law Enforcement (Controlled Operations) Act 1997 (NSW)

Cases:
- Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54
- Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19
- Dowe v Commissioner of New South Wales Crime Commission [2007] NSWSC 166; (2007) 169 A Crim R 43
- Dowe v Commissioner of New South Wales Crime Commission & Anor; Gedeon v Commissioner of New South Wales Crime Commission & Anor [2007] NSWCA 296; (2007) 177 A Crim R 44
- Gedeon v Commissioner of New South Wales Crime Commission; Dowe v Commissioner of New South Wales Crime Commission [2008] HCA 43; (2008) 82 ALJR 1465
- R v Dowe [2007] NSWDC 92