Citation: GEDEON, Gilbert v R [2013] NSWCCA 257
Court: Court of Criminal Appeal, NSW
Date: 12 November 2013
Judges: Bathurst CJ (principal judgment); Beazley P, Hoeben CJ at CL, Blanch J, and Price J (all agreeing)
Background
A NSW Crime Commission task force, established in late 2004 with the Australian Federal Police and NSW Police, investigated a suspected major cocaine importation and distribution syndicate. Acting on information from an informer, the Commission obtained authorities under the Law Enforcement (Controlled Operations) Act 1997 permitting the informer to possess and supply cocaine to named individuals, including the appellant, with the knowledge that the cocaine would not be recovered.
Under those authorities, the informer supplied the appellant with two kilograms of cocaine in February 2005 and 750 grams in March 2005. The appellant was arrested in May 2005 and charged with two counts of supplying a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The validity of the controlled operation authorities was subsequently challenged and the High Court held them invalid in Gedeon v Commissioner of the NSW Crime Commission [2008] HCA 43.
Following that High Court ruling, the appellant applied to have all Crown evidence excluded under s 138 of the Evidence Act 1995 as improperly obtained. He also sought to cross-examine Mark Standen (then Assistant Director of Investigations of the Commission, who was later charged with separate offences) and to adjourn the trial pending those proceedings. The trial judge rejected those applications, the trial proceeded before a judge alone, and the appellant was convicted on both counts and sentenced to 15 years' imprisonment with a non-parole period of 10 years.
Legal Issues
- Whether s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) was inconsistent with s 233B of the Customs Act 1901 (Cth) under s 109 of the Constitution, rendering the State provision inoperative
- Whether the trial judge applied the wrong test under s 138 of the Evidence Act 1995 when assessing the gravity of the impropriety by comparing it with the offences charged
- Whether the trial judge erred in balancing the overall risk of harm to the public from releasing cocaine into the community against the benefit of bringing the drug network down
- Whether law enforcement officers had a "reasonable excuse" under s 233B of the Customs Act 1901 (Cth), such that no breach occurred and s 138 was not engaged
- Whether, even if errors occurred in the s 138 analysis, the evidence should nonetheless have been admitted on a correct application of that section
- Whether the trial judge erred in upholding Standen's claim of privilege against self-incrimination and in refusing to compel his answers
- Whether the trial should have been adjourned pending the outcome of Standen's proceedings
- Whether the parity principle required a lesser sentence in light of the sentence imposed on a co-offender
Decision
Constitutional inconsistency: The Court rejected the argument that the NSW supply offence was inconsistent with the Commonwealth customs offence. Section 25(2) of the Drug Act and s 233B of the Customs Act address different conduct and leave no area of liability that the Commonwealth provision opens and the State provision closes. The absence of a "reasonable excuse" defence in the Drug Act does not strip away a right available under Commonwealth law in a manner that produces inconsistency.
Admissibility under s 138 of the Evidence Act: The Court identified two errors in the trial judge's analysis. First, there was no evidential basis for the finding that the health risk of releasing significant quantities of cocaine was not high. Second, the law enforcement officers' belief that they were conducting an authorised operation did not constitute a "reasonable excuse" under the Customs Act; that Act creates a comprehensive forfeiture scheme that leaves no room for an unauthorised controlled operation, and the limited Commonwealth provision for controlled operations (in the Crimes Act 1914 (Cth)) was not engaged. The evidence obtained was therefore produced by offences under the Customs Act. Despite those errors, the Court conducted its own assessment under s 138(3) and concluded that the desirability of admitting the evidence outweighed the undesirability of doing so. The officers acted in good faith under what they believed was a valid authority, the offending was serious, and the evidence was central to the prosecution.
Cross-examination of Standen and adjournment: The Court upheld the trial judge's ruling permitting Standen to claim privilege. Standen's answers could have tended to establish he had committed offences under foreign law, and the interests of justice did not require him to answer and thereby expose his defence before his own trial. The refusal to adjourn was similarly upheld; an indefinite adjournment in those circumstances was not warranted.
Parity and sentence: The co-offender (Pavan) had pleaded guilty to a single charge and provided significant assistance to authorities. The appellant was convicted after a contested trial on two charges and offered no comparable utilitarian value. Applying both the majority approach in Green v The Queen [2011] HCA 49 and the existing NSW principles, the Court found the appellant had no justifiable sense of grievance arising from the disparity in sentences.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted, but appeal against sentence dismissed
Key Takeaways
- Sections 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) and 233B of the Customs Act 1901 (Cth) are directed at different offences and are not constitutionally inconsistent; the State provision can operate concurrently with the Commonwealth one.
- A good-faith belief by law enforcement officers that they are acting under a valid controlled operation authority does not constitute a "reasonable excuse" for the purposes of s 233B of the Customs Act, meaning evidence gathered in such circumstances can be improperly obtained within the meaning of s 138 of the Evidence Act 1995.
- Where errors are found in a trial judge's s 138 analysis, the Court of Criminal Appeal will conduct its own balancing exercise under s 138(3); good-faith conduct by officers, the seriousness of the offending, and the centrality of the evidence are all weighty factors in favour of admission.
- Under s 128 of the Evidence Act 1995, a witness may resist compelled answers where those answers might tend to prove an offence against the law of a foreign country, and the interests of justice do not necessarily override that protection simply because a co-accused seeks the information.
- In applying the parity principle, a court considers the totality of relevant differences between co-offenders, including whether one pleaded guilty, the number of charges, and whether one provided assistance to authorities; significant differences on those matters can justify substantially different sentences without producing a justifiable sense of grievance.
Legislation and Cases Referenced
Legislation:
- Constitution, s 109
- Customs Act 1901 (Cth), s 233B
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Evidence Act 1995 (NSW), ss 128, 137, 138, 142
- Law Enforcement (Controlled Operations) Act 1997 (NSW), ss 6, 7
- Crimes Act 1914 (Cth), ss 15I, 15M
- Criminal Code Act 1995 (Cth), ss 11.2, 11.5, 13.3
Key Cases:
- Gedeon v Commissioner of the NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120
- Dickson v The Queen [2010] HCA 30; (2010) 241 CLR 491
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- He Kaw Teh v The Queen (1984) 157 CLR 523
- Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1
- Dowe v Commissioner of NSW Crime Commission [2007] NSWCCA 296; (2007) 177 A Crim R 44
- Em v The Queen [2007] HCA 46; (2007) 232 CLR 67
- Bunning v Cross