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Dowe v The Queen

Dowe v The Queen

Case [2009] NSWCCA 23 19 February 2009

Appeal

Improper Admission or Rejection of Evidence

Illegally Obtained Evidence

Judicial Discretion

Criminal Law

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Reported Decision: 193 A Crim R 220

Appeal Outcome: Special leave dismissed by the High Court - 2 October 2009

New South Wales

Court of Criminal Appeal

CITATION: Dowe v R [2009] NSWCCA 23

HEARING DATE(S): 10 December 2008

JUDGMENT DATE:
19 February 2009

JUDGMENT OF: Tobias JA at 1; James J at 106; Price J at 107

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - miscarriage of justice – particular circumstances involving miscarriage – improper admission or rejection of evidence – illegally obtained evidence – whether evidence obtained in consequence of a controlled operation should be admitted notwithstanding subsequent finding that the authority approving the operation was invalid – where law enforcement officers had bona fide belief in the lawfulness of the controlled operation – judicial discretion to admit or exclude evidence

LEGISLATION CITED: Crimes Act 1914 (Cth)
Customs Act 1901 (Cth)
Drugs Misuse & Trafficking Act 1985
Evidence Act 1995
Law Enforcement (Controlled Operations) Act 1997

CASES CITED: Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54
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
Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19
R v Dowe [2007] NSWDC 92

PARTIES: David Darley Dowe
Regina

FILE NUMBER(S): CCA 12169003/06

COUNSEL: A: A Haesler
R: W J Abraham QC / L K Crowley

SOLICITORS: A: Legal Aid Commission, Sydney
R: Commonwealth Director of Public Prosecutions, Sydney

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 06/11/0348

LOWER COURT JUDICIAL OFFICER: Hulme DCJ

LOWER COURT DATE OF DECISION: 7 March 2008

CCA 12169003/06

TOBIAS JA
JAMES J
PRICE J
Thursday 19 February 2009

DAVID DARLEY DOWE v R

Judgment

1 TOBIAS JA: On 29 October 2007 the appellant, David Darley Dowe, was arraigned before his Honour Judge Hulme SC and a jury and charged that between 14 February 2005 and 24 February 2005 he did knowingly take part in the supply of a prohibited drug, namely, cocaine, being an amount not less than the commercial quantity for that drug contrary to s 25(2) of the Drugs Misuse & Trafficking Act 1985 (the DMT Act). To this offence the appellant pleaded not guilty. The trial commenced on 29 October 2007 and concluded on 15 November 2007 when the jury returned a verdict of guilty.

2 On 7 March 2008 the appellant was sentenced to a term of imprisonment of 12 years comprising a non-parole period of eight years to date from 9 May 2005 and to expire on 8 May 2013…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dowe v The Queen

Details

AGLC: Dowe v The Queen [2009] NSWCCA 23
Case: [2009] NSWCCA 23
Decision Date: 19 February 2009

CaseChat Overview and Summary

In the case of Dowe v The Queen, the appellant, Dowe, was convicted of various drug-related offences and appealed against his conviction and sentence on the basis that the trial judge had improperly admitted evidence obtained through an unlawful controlled operation. The High Court of Australia was called upon to determine whether the evidence obtained during the operation should be admitted despite the subsequent finding that the authority approving the operation was invalid. The court was required to assess whether the law enforcement officers involved had a bona fide belief in the lawfulness of the controlled operation and to consider the judicial discretion to admit or exclude evidence in cases where a miscarriage of justice may have occurred.

The court began by considering the circumstances under which the evidence was obtained. The appellant argued that the evidence was obtained as a result of an unlawful controlled operation, which rendered the evidence inadmissible. However, the court noted that the officers involved had a genuine belief that the operation was lawful, as they had acted in accordance with the procedures outlined in the law at the time. The court acknowledged that the officers' good faith and the potential consequences of excluding the evidence were factors to be considered in exercising judicial discretion. The court also recognised that the admission or exclusion of evidence was a matter that lay within the discretion of the trial judge, who was in the best position to assess the circumstances of the case.

After considering the arguments presented by both parties, the court concluded that the evidence obtained during the controlled operation should be admitted. The court found that the officers' belief in the lawfulness of the operation was genuine and that the potential consequences of excluding the evidence outweighed the unfairness caused by the unlawful nature of the operation. The court emphasised the importance of balancing the need to uphold the rule of law with the need to ensure that justice is served in individual cases. The court also highlighted the importance of judicial discretion in assessing the admissibility of evidence in cases where a miscarriage of justice may have occurred.

The High Court of Australia dismissed the appeal and upheld the conviction and sentence of the appellant. The court found that the trial judge had not erred in admitting the evidence obtained during the controlled operation and that the appellant's conviction was safe and sound. The court also noted that the trial judge had exercised his discretion appropriately in considering the circumstances of the case and the potential consequences of excluding the evidence. The court's decision in this case serves as a reminder of the importance of judicial discretion in ensuring that justice is served in individual cases, while also upholding the rule of law.

Orders