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Court of Criminal Appeal 20 November 2009

Gedeon v R

[2009] NSWCCA 278

Drugs
CRIMINAL LAW APPEAL EVIDENCE APPEAL RIGHTS FROM THE DECISION CRIMINAL APPEAL ACT S 5F REFUSAL OF STAY INTERLOCUTORY

Citation: Gedeon v R [2009] NSWCCA 278
Court: Court of Criminal Appeal, New South Wales
Date: 20 November 2009
Judge(s): Allsop P, Howie J, Hislop J

Background

The applicant faced two charges of drug supply under the Drug Misuse and Trafficking Act 1985 (NSW), relating to the supply of cocaine in February and March 2005. The Crown's case depended heavily on evidence gathered through a joint police taskforce using undercover operations and listening devices. Those operations were conducted under authorities issued pursuant to the Law Enforcement (Controlled Operations) Act 1997 (NSW), which ordinarily protected officers and informants from criminal liability for otherwise unlawful acts carried out in the course of an investigation.

The validity of those controlled operation authorities had already been litigated through the Supreme Court and Court of Appeal, both of which upheld the authorities. The High Court, however, held the authorities were invalid. That invalidity stripped the statutory protection from the relevant acts, meaning the Crown's evidence was obtained unlawfully.

Before trial commenced in the District Court, the applicant moved to have all of the Crown's evidence excluded under s 138 of the Evidence Act 1995 (NSW), which gives a court a discretion to admit improperly or illegally obtained evidence. The trial judge, Tupman DCJ, declined to exclude the evidence and refused a related application for a permanent stay of proceedings. The applicant then sought leave to appeal to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 (NSW), which permits appeals from interlocutory judgments or orders.

  • Whether a ruling on the admissibility of evidence under s 138 of the Evidence Act constitutes an "interlocutory judgment or order" for the purposes of s 5F of the Criminal Appeal Act 1912 (NSW), thereby engaging the Court's appellate jurisdiction.
  • Whether the refusal of a permanent stay of proceedings qualifies as an interlocutory order under s 5F.
  • Whether leave to appeal from the refusal of the stay should be granted, given the substantive challenge was directed entirely at the admissibility ruling.
  • Whether the District Court judge erred in exercising the s 138 discretion to admit the illegally obtained evidence.

Decision

The Court of Criminal Appeal drew a distinction, as a matter of legal form, between a ruling on admissibility of evidence and a refusal of a stay of proceedings. A ruling on admissibility is not an interlocutory judgment or order in the relevant sense and therefore does not attract the right of appeal under s 5F. A refusal of a permanent stay, by contrast, is interlocutory in form and can in principle engage s 5F jurisdiction.

The Court acknowledged that the amended notice of motion, by including the stay application, gave the Court at least arguable jurisdiction to hear the matter. However, the Court held that, even accepting jurisdiction, the discretion to grant leave should be exercised to refuse it. The substance of the application was entirely concerned with the admissibility ruling, not any independent stay ground. Framing a challenge to an admissibility decision as a stay application does not convert it into something that warrants interlocutory appellate intervention.

The Court considered the applicant's three specific complaints about the District Court's s 138 analysis. It found no apparent error of principle in how the judge dealt with the question of whether taskforce members had a reasonable excuse for possessing the drugs. The Court also rejected the submission that the judge improperly took the gravity of the charges into account when assessing the seriousness of the investigative impropriety. Although the Court noted that the judge's language about the risk of harm to third parties was open to debate in context, it did not consider that observation capable of vitiating the overall conclusion.

The Court also weighed the substantial delay already experienced by the applicant. More than three years had passed since his committal, and more than five years since the events underlying the charges. The Court treated the strong public interest in finalising proceedings as a powerful reason against further delay. It also noted that, if the applicant were convicted, his appeal rights on the admissibility question would remain available.

Orders Made

  • Application for an extension of time in which to apply for leave to appeal granted; time extended to 12 October 2009.
  • Application for leave to appeal from orders of Tupman DCJ made 14 September 2009 refused.

Key Takeaways

  • A ruling on the admissibility of evidence is not an "interlocutory judgment or order" for the purposes of s 5F of the Criminal Appeal Act 1912 (NSW), and accordingly does not attract an interlocutory right of appeal.
  • A refusal of a permanent stay of proceedings is interlocutory in form and can engage s 5F jurisdiction, but the Court of Criminal Appeal confirmed that it will not ordinarily grant leave where the true substance of the application is an attack on an admissibility ruling.
  • Including a stay ground in a notice of motion alongside an admissibility challenge does not, without more, transform the application into one that warrants interlocutory appeal.
  • No error of principle was established in Tupman DCJ's exercise of the s 138 discretion, notwithstanding that aspects of her reasoning on risk of harm to third parties were open to debate.
  • Significant pre-trial delay is a material consideration weighing against the grant of leave for interlocutory appeal in criminal proceedings, particularly where appeal rights remain intact following any conviction.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Evidence Act 1995 (NSW), s 138
- Law Enforcement (Controlled Operations) Act 1997 (NSW)

Cases:
- Dowe and Gedeon v Commissioner of NSW Crime Commission [2007] NSWSC 166; 169 A Crim R 43
- Dowe and Gedeon v Commissioner of NSW Crime Commission [2007] NSWCA 296; 177 A Crim R 44
- Dowe and Gedeon v Commissioner of NSW Crime Commission [2008] HCA 43; 236 CLR 120
- Steffan (1990) 30 NSWLR 633
- EK [2009] NSWCCA 4
- Bozatsis and Spanakakis (1997) 97 A Crim R 296
- Glossop [2001] NSWCCA 165
- Groves (2 April 1990, NSWCCA, unreported)
- Kocer [2006] NSWCCA 328
- Lavender [2002] NSWCCA 511; 37 MVR 491
- Marchione [2002] NSWCCA 131; 128 A Crim R 574