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Gedeon v The Queen

Gedeon v The Queen

Case [2013] NSWCCA 257 12 November 2013

Appeal

Admissibility of Evidence

Criminal Liability

Sentencing

Inconsistency between State and Commonwealth laws

Constitutional Validity

Criminal Law

Constitutional Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: GEDEON, Gilbert v R [2013] NSWCCA 257
Hearing dates: 25 - 26 March 2013
Decision date: 12 November 2013
Before: Bathurst CJ at [1]; Beazley P at [347]; Hoeben CJ at CL at [348]; Blanch J at [349]; Price J at [350]
Decision:
1. Appeal against conviction dismissed.
2. Grant leave to appeal against sentence but dismiss the appeal.

Catchwords: CRIMINAL LAW - appeal against conviction - two counts of supply in contravention of the Drug Misuse and Trafficking Act 1985.
CONSTITUTIONAL LAW - inconsistency between State and Commonwealth laws - whether s 25 of the Drug Misuse and Trafficking Act 1985 is inconsistent with s 233B of the Customs Act 1901 (Cth).
EVIDENCE - admissibility - improperly obtained evidence - gravity of impropriety or contravention - evidence gathered pursuant to authority under the Law Enforcement (Controlled Operations) Act 1997 - authority subsequently held to be invalid.
EVIDENCE - admissibility - improperly obtained evidence - whether the trial judge correctly assessed the overall risk of harm of the controlled operation to the community.
EVIDENCE - admissibility - improperly obtained evidence - whether the trial judge erred in considering the defence of reasonable excuse in relation to s 233B of the Customs Act 1901 (Cth).
EVIDENCE - admissibility - improperly obtained evidence - whether desirability of admitting the illegally or improperly obtained evidence outweighed the undesirability.
EVIDENCE - witness - cross-examination on voir dire - privilege - self-incrimination - whether answers would tend to prove an offence against a law of a foreign country - proof of foreign law - whether the interests of justice required that the evidence be given over objection.
CRIMINAL LAW - sentencing - parity principle.
Legislation Cited: Constitution, s 109
Crimes Act 1914 (Cth), ss 4C, 15I, 15M
Crimes Act 1958 (Vic), s 321
Criminal Appeal Act 1912, s 5F
Criminal Appeal Rules, r 4
Criminal Code Act 1995 (Cth), ss 11.2, 11.5, 13.3
Customs Act 1901 (Cth), ss 203A, 203C, 204, 205, 205C, 205G, 207, 229, 233B, 235, Sch VI
Defence Force Discipline Act 1982 (Cth)
Drug Misuse and Trafficking Act 1985, ss 3, 10, 25, 29, 33,
Evidence Act 1995, ss 103, 128, 137, 138, 142, 174, 175, 191
Law Enforcement (Controlled Operations) Act 1997, ss 6, 7
Law Enforcement (Controlled Operations) Regulation 1998, Sch 1
Traffic Act 1949 (Qld)
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
International Covenant on Civil and Political Rights
Cases Cited: Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253
BP Exploration Co (Libya) Ltd v Hunt [1980] 1 NSWLR 496
Bunning v Cross (1977) 141 CLR 54
Damberg v Damberg (2001) 52 NSWLR 492
Dickson v The Queen [2010] HCA 30; (2010) 241 CLR 491
Director of Public Prosecutions v Marijancevic [2011] VSCA 355; (2011) 33 VR 440
Director of Public Prosecutions v MD [2010] VSCA 233; (2010) 29 VR 434
Dowe v Commissioner of the New South…

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 Gedeon v The Queen

Details

AGLC: Gedeon v R [2013] NSWCCA 257
Case: [2013] NSWCCA 257
Decision Date: 12 November 2013

CaseChat Overview and Summary

The appellant, Gedeon, was convicted on two counts of supplying a prohibited drug in contravention of the Drug Misuse and Trafficking Act 1985. The conviction arose from evidence obtained during a controlled operation authorised under the Law Enforcement (Controlled Operations) Act 1997, which was later found to be invalid. Gedeon appealed against his conviction on several grounds, including the admissibility of evidence obtained through the invalid authority, the trial judge's assessment of the risk of harm to the community, and the application of the parity principle in sentencing. The High Court of Australia was called upon to determine these issues.

The primary legal issues in this case were the admissibility of evidence obtained through an invalid authority under the Law Enforcement (Controlled Operations) Act 1997, the inconsistency between s 25 of the Drug Misuse and Trafficking Act 1985 and s 233B of the Customs Act 1901 (Cth), and the application of the parity principle in sentencing. The Court had to consider whether the trial judge correctly assessed the risk of harm to the community, whether the defence of reasonable excuse was properly considered, and whether the desirability of admitting the illegally obtained evidence outweighed its undesirability. Additionally, the Court examined the implications of the invalid authority on the evidence obtained and its potential impact on the conviction.

The Court found that the trial judge had not erred in assessing the risk of harm to the community from the controlled operation, nor in considering the defence of reasonable excuse. The Court held that the desirability of admitting the illegally obtained evidence outweighed the undesirability, as the evidence was crucial to the prosecution's case and its exclusion would have been unjust. The Court also determined that there was no inconsistency between the State and Commonwealth laws, as the purpose and effect of the provisions were different. Finally, the Court upheld the application of the parity principle in sentencing, ensuring consistency in sentencing for similar offences.

The High Court of Australia dismissed the appeal and affirmed Gedeon's conviction and sentence. The Court held that the evidence obtained through the invalid authority was admissible, the trial judge had correctly assessed the risk to the community, and the parity principle applied in sentencing. The Court's decision reinforced the importance of the proper administration of justice and the careful consideration of evidence obtained through controlled operations.

Orders