Gedeon v Commissioner of the New South Wales Crime Commission

The High Court of Australia considered an appeal by Mr Gedeon and Mr Dowe against the Commissioner of the New South Wales Crime Commission. The applicants were charged with drug supply offences, and their defence involved challenging the validity of controlled operation authorities issued by the Commissioner under the *Law Enforcement (Controlled Operations) Act 1997* (NSW) ("LECO Act"). The core of the dispute concerned whether these authorities were lawfully issued, particularly in circumstances where the planned controlled operations involved the sale of cocaine without a strategy for its recovery, which the applicants argued would seriously endanger health and safety.

The legal issues before the High Court included whether the Commissioner had the power to issue the authorities when the planned conduct of the controlled operations, specifically the non-recovery of cocaine, was likely to seriously endanger health or safety. This involved interpreting the scope of "any other person" in section 7 of the LECO Act, determining whether it extended beyond those in the immediate vicinity of the operation to encompass individuals affected by foreseeable consequences. Furthermore, the Court had to consider whether the definition of "controlled activity" under the LECO Act extended to conduct that would be unlawful by reason of contravening Commonwealth law, and whether the absence of corresponding federal authorisation under Part IAB of the *Crimes Act 1914* (Cth) impacted the validity of the state-issued authorities.

The High Court reasoned that the LECO Act, in section 7, imposed a mandatory condition that an authority to conduct a controlled operation must not be granted if a participant would engage in conduct likely to seriously endanger the health or safety of any person. The Court found that the non-recovery of a significant quantity of cocaine, with the foreseeable consequence of it entering the illicit market, constituted conduct that could seriously endanger health and safety. This interpretation extended the meaning of "any other person" to include those who might be harmed by the foreseeable consequences of the operation, not just those present at the immediate scene. Consequently, the authorities were deemed invalid because the Commissioner had failed to satisfy this statutory pre-condition for their issuance. The Court allowed the appeal, declared the relevant authorities invalid, and ordered that the summonses against the applicants be dismissed.