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Court of Criminal Appeal 23 June 2017

Barakat v R

[2017] NSWCCA 147

Drugs
CRIMINAL LAW GROUNDS OF APPEAL UNCLEAR NO HOUSE V THE KING ERROR IDENTIFIED APPLICANT MERELY SOUGHT TO RE ARGUE THE ISSUE DE NOVO APPEAL DISMISSED

Citation: Barakat v R [2017] NSWCCA 147
Court: Court of Criminal Appeal, New South Wales
Date: 23 June 2017
Judge(s): Hoeben CJ at CL; R A Hulme J; Wilson J

Background

The applicant faced trial in the District Court on nine counts relating to the supply of methylamphetamine and cocaine, alleged to have occurred between July and August 2010. The prosecution's case centred on a registered informant ("AP") who, acting under a formally authorised controlled operation, purchased drugs from the applicant using funds provided by authorities. The controlled operation authority was in place from 12 May 2010.

Before that authority was granted, AP had made four payments to the applicant (totalling $4,500 between March and May 2010) using money said to be provided by authorities to repay a perceived drug debt. The applicant argued these pre-authorisation payments were irregular and illegal, and that the entire controlled operation was tainted as a result, making the prosecution a product of a "poisoned tree."

District Court Judge Toner SC refused the application for a permanent stay on 7 April 2017. The applicant then sought leave to appeal that interlocutory decision to the Court of Criminal Appeal, with the trial scheduled to commence on 26 June 2017.

  • Whether leave to appeal should be granted under s 5F(3) of the Criminal Appeal Act 1912 (NSW) against a refusal of a permanent stay of proceedings.
  • Whether the primary judge erred by failing to take into account a material consideration, specifically the alleged nexus between the pre-authorisation payments and the subsequent controlled operation.
  • Whether the primary judge misapplied or mischaracterised the significance of Ridgeway v The Queen in the context of the controlled operation authorisation.

Decision

Hulme J (with whom Hoeben CJ at CL and Wilson J agreed) refused leave to appeal. The court noted at the outset that the applicant's procedural conduct was significantly deficient: the notice of appeal was filed without any articulated grounds, the "grounds of appeal" document filed in advance of the hearing identified no error by the primary judge, and the "appeal book" was not a proper appeal book at all. The Crown assisted the court by supplying missing documents at short notice.

On the substantive grounds, Hulme J found neither had merit. Ground 1 alleged that the primary judge had failed to take into account a material consideration, but in substance it amounted to a dispute about a factual finding that was plainly open to the primary judge. No House v The King error (that is, a legal error in the exercise of a discretion) was identified.

Ground 2 was based on a misreading of the primary judge's judgment. The relevant passage at paragraph 66 of that judgment was a general observation about Parliament's legislative response to Ridgeway v The Queen through the Law Enforcement (Controlled Operations) Act 1997, not a specific finding about the facts of this case. Again, no appellable error was established.

The court also observed that the application as a whole sought to have the stay application re-argued from scratch, which is not the proper function of an interlocutory appeal. On that basis, and on the merits, leave was refused.

Orders Made

  • Leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) was refused.

Key Takeaways

  • An appeal against a refusal of a permanent stay is an appeal against the exercise of a judicial discretion; to succeed, an applicant must identify a House v The King error in the primary judge's reasoning, not simply re-agitate the factual dispute afresh.
  • No House v The King error arises merely because an appellate court might weigh the facts differently. A factual finding that was open to the primary judge cannot be impugned on appeal solely on the basis of disagreement.
  • Grounds of appeal alleging failure to consider a material consideration will fail where the "error" asserted is, in substance, a challenge to a factual conclusion rather than a legal misdirection.
  • The Court of Criminal Appeal noted the applicant's procedural failings with some force: a notice of appeal without grounds, a document styled as grounds of appeal that identified no error, and a mislabelled appeal book all undermined the application.
  • Extraordinary delay in proceedings, where substantially attributable to the steps taken by an applicant, carries weight in the context of applications that may further postpone a trial date.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5F(3), 5F(5)
- Criminal Appeal Rules r 5B
- Evidence Act 1995 (NSW), s 138
- Law Enforcement (Controlled Operations) Act 1997 (NSW), s 6

Cases
- House v The King [1936] HCA 40; 55 CLR 499
- Jago v The District Court New South Wales [1989] HCA 46; 168 CLR 23
- R v Ladocki [2004] NSWCCA 336
- Ridgeway v The Queen [1995] HCA 66; 184 CLR 19
- The Queen v Glennon [1992] HCA 16; 173 CLR 592
- TS v R [2014] NSWCCA 174
- Walton v Gardiner [1993] HCA 77; 177 CLR 378