Dowe; Gedeon v Commissioner of the NSW Crime Commission & Anor

[2008] HCATrans 164

[2008] HCATrans 164

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S544 of 2007

B e t w e e n -

DAVID DARLEY DOWE

Applicant

and

COMMISSIONER OF THE NEW SOUTH WALES CRIME COMMISSION

First Respondent

NEW SOUTH WALES CRIME COMMISSION

Second Respondent

Office of the Registry
  Sydney  No S536 of 2007

B e t w e e n -

GILBERT GEDEON

Applicant

and

COMMISSIONER OF THE NEW SOUTH WALES CRIME COMMISSION

First Respondent

NEW SOUTH WALES CRIME COMMISSION

Second Respondent

ATTORNEY-GENERAL FOR NEW SOUTH WALES

Third Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 APRIL 200, AT 9.34 AM

Copyright in the High Court of Australia

__________________

MR A.C. HAESLER, SC:   Your Honours, for the applicant, Dowe, with MR M.A. ROBINSON and MS J. CHAMBERS.  (instructed by Legal Aid Commission of NSW)

MR M.J. LEEMING, SC:   May it please the Court, I appear with my learned friend, MR C.H. WITHERS, for the applicant in matter No 2, MR G. GEDEON.  (instructed by Matouk Joyner Lawyers)

MR P.F. SINGLETON:   May it please the Court, I appear for the second respondent in both of those matters.  (instructed by New South Wales Crime Commission – Sydney)

GLEESON CJ:   Yes, Mr Haesler.

MR HAESLER:   Your Honour, the application concerns the release into the community by a law enforcement agency of a dangerous and prohibited drug, over a kilogram of cocaine.

GLEESON CJ:   Your client has been convicted, is that right?

MR HAESLER:   My client has been convicted.  His appeal is ‑ ‑ ‑

GLEESON CJ:   There is a pending criminal appeal?

MR HAESLER:   His appeal is pending in the Court of Criminal Appeal.  He is presently serving a sentence of 12 years imprisonment.

GLEESON CJ:   All right.  We have no way of knowing from the papers before us, I am afraid, how important this issue was to his conviction.  First of all, as I would understand it, the legality or illegality of the conduct of the police in the controlled operation was not decisive on the question of the admissibility of the evidence, although it was relevant.

MR HAESLER:   It was relevant and ‑ ‑ ‑

GLEESON CJ:   Secondly, we have no way of knowing from the papers before us how important the issue of the admissibility of that evidence was in his conviction.

MR HAESLER:   The key passage we rely upon is at 43 of the application book in the judgment of the Chief Justice, the second line:

The validity of the authorities will be of significance in the future criminal trial ‑ ‑ ‑

GLEESON CJ:   Of significance.

MR HAESLER:   Yes.

GLEESON CJ:   But since then he has been tried?

MR HAESLER:   He has been tried and convicted.

GLEESON CJ:   He has been convicted, and there is a pending appeal to the Court of Criminal Appeal?

MR HAESLER:   Yes.

GLEESON CJ:   Well, as I say ‑ ‑ ‑

MR HAESLER:   The legality of that authority – well, for the moment it is not an issue at the appeal because there is a binding statement of law as to its legality by the Court of Appeal.

GLEESON CJ:   But will the resolution of that issue be decisive of the outcome of the appeal?

MR HAESLER:   It could even be decisive, but whether he gets legal aid to run the appeal, with respect to their Honours.

GLEESON CJ:   Just concentrating on the outcome of the appeal, will the resolution of that decision be decisive of the outcome of the appeal?

MR HAESLER:   We say it will be – yes, your Honour, for the simple reason that the legality of the authority was - the operation which ensnared the present applicant was one which was critically set up by the authority which is under challenge.

GLEESON CJ:   I think we understand the importance of the issue.

MR HAESLER:   The question would come as to how a judge would exercise their discretion in relation to an authority and the illegality of what is going on.  If one then looks at a case such as Ridgeway v The Queen, which involved the importation unlawfully of 140 grams of heroin and the comments by the court in relation to that level of illegality and compared that with the kilogram of cocaine which is involved in this particular case, the unlawfulness which was foundational to the entrapment of the present applicant would be more than critical, it would be we say almost a lay‑down misère as to whether there was a miscarriage of justice that that particular authority was not able to be challenged at the trial.

GLEESON CJ:   Now, the application of Mr Gedeon is not opposed, as I understand it?

MR HAESLER:   Nor is the present application on the most recent submissions filed by the second respondent.

GLEESON CJ:   Well, what we wanted to ask you was this.  There has been no issue – and I am not suggesting there ought to have been an issue – in the proceedings in the Court of Appeal or before Justice Hall of the jurisdictional basis of the application for judicial review that came before the Supreme Court of New South Wales.  Could you just explain to us what that basis is?

Let me put my question this way.  Police apply for authorisation and receive authorisation and then conduct a controlled operation.  In the course of that controlled operation they “catch”, to use that word, two alleged drug dealers.  Now, we would just like to understand what it is that gives the alleged drug dealers the standing to bring proceedings for judicial review of the authorisation.

MR HAESLER: Well, the standing was based upon sections 65 and 69 of the Supreme Court Act (NSW).

GLEESON CJ:   Right.

MR HAESLER:   It was a challenge to the administrative – or the decision of the first respondent in relation to the granting of that authority which had personal and direct impact upon them.

GLEESON CJ:   That is the basis, is it?

MR HAESLER:   Yes, and ‑ ‑ ‑

GLEESON CJ:   I am not suggesting you are wrong, I just want to understand.  Because it has not been an issue, we do not find any discussion of it in the Court of Appeal.

MR HAESLER:   Yes, so it was that administrative decision that was the subject of the initial proceedings, and as I understand it was ‑ ‑ ‑

GLEESON CJ:   So the decision was to give the police authority to conduct one of these controlled operations ‑ ‑ ‑

MR HAESLER:   To engage in what would otherwise be what we say ‑ ‑ ‑

GLEESON CJ:   Now, who has standing to challenge the validity of the authorisation?  Anybody who might be caught?

MR HAESLER:   We say any person directly affected by it.

GLEESON CJ:   What is the form of direct affectation?

MR HAESLER:   That the lawfulness or otherwise of this particular authority was critical to the – well, the apprehension, the mere fact that he was before the court, his apprehension, and the subsequent criminal proceedings.  Now, as I understand the – and I will be corrected if I am wrong – the issue as to the legality of this particular authority, and as a collateral issue in respect to the criminal trial, was first raised by the

respondents as to whether it should be determined in the criminal trial or determined independently.

GUMMOW J:   It is not a question of the Supreme Court Act, is it?  Was there not a question of inconsistency under the Constitution?

MR HAESLER:   That question was raised sometimes at first instance, it has gone by the by ‑ ‑ ‑

GUMMOW J:   But that made the whole of the proceeding federal jurisdiction, so the question is what is the sufficiency of standing to attempt to enliven section 109 in your favour, is it not?

MR HAESLER:   The 109 issue was originally raised, your Honours, it was never – well, it certainly was not pressed at this stage, nor was it pressed at the Court of Appeal.  It was an issue that was of concern initially, but when the facts of the matter were fully ventilated it simply did not – the 109 issue did not come to any fruition so far as the parties were concerned.  The reliance is primarily upon challenging to a decision by a State authority which had direct and personal consequences for a participant in the controlled operation, the participant being the targets of that controlled operation.

So the State Act provides for authorities to be granted in relation to participants, being the persons conducting the operation, but that participants also includes those who would be, we say, caught or trapped by the operation.

GLEESON CJ:   Perhaps we will hear what the other counsel have to say about this question.

MR HAESLER:   If the Court pleases.

GLEESON CJ:   Mr Leeming.

MR LEEMING:   Two things by way of elaboration.  First of all, jurisdictionally, your Honour Justice Gummow is, of course, correct.  Section 109 was raised at first instance ‑ ‑ ‑

GUMMOW J:   I am just looking at page 20 of the application book in your case, top of the page.

MR LEEMING:   Quite so, and 78B notices are issued.  My learned friend is quite correct, that was not pressed ultimately in the Court of Appeal, it was rejected, we say completely properly, by the primary judge.  Whether it was a complete nonsense or whether it was capable of properly being

argued is not to the point.  It is quite clear that simply by making that claim federal jurisdiction was alive and it is quite clear that there is a single substratum of fact and the whole matter was within federal jurisdiction.

But there were two bases upon which the jurisdiction of the Supreme Court was invoked in these civil proceedings.  First, but we would say secondarily, as my learned friend says, by way of judicial review, but primarily seeking a declaration of right.  I regret to say the originating process is not reproduced in the application book, but your Honours can see from paragraph 1 that the relief that is sought in the summonses filed on 11 April 2006 was a declaration that some decisions were void.

Now, there were two essential bases for that which reflect grounds 1 and 2 and 3 that we seek to agitate in this Court.  The first basis was irrespective of any decision that was made by an officer of the second respondent or some other law enforcement officer, as a matter of law the New South Wales Act did not authorise that, but the document which purported to have been issued by those officers.  That is our first ground.

Secondly, as my learned friend says, there were proceedings in the nature of judicial review of the opinion of the officer which was necessary in order to issue that document.  But I am in complete agreement with my learned friend, both applicants were directly affected by those decisions because both had received, as I am told, briefs of evidence in the pending trials in the District Court, which included all of these materials which were affected by the outcome of the release that they sought.  I hope that assists in relation to that point.

GLEESON CJ:   Thank you.  Mr Singleton, do you want to add anything in relation to that?

MR SINGLETON:   No, your Honour.

GLEESON CJ:   What is your attitude to these applications?

MR SINGLETON:    Neither of them is opposed.

GLEESON CJ:   The course we propose to take in these two matters is to refer each application for special leave to appeal to a hearing by a Full Court of this Court.  Counsel should be prepared to argue those applications as on a full appeal, but they should also be prepared to explain to the Full Court the procedural basis of the proceedings with which we are concerned.

AT 9.45 AM THE MATTER WAS CONCLUDED