Gedeon v The Queen

[2009] NSWCCA 278

New South Wales

Court of Criminal Appeal

CITATION:	Gedeon v R [2009] NSWCCA 278
HEARING DATE(S):	9 November 2009
JUDGMENT DATE:	20 November 2009
JUDGMENT OF:	Allsop P at 1; Howie J at 1; Hislop J at 1
DECISION:	The orders given on 9 November 2009 were: 1. Application for an extension of time in which to apply for leave to appeal be granted and time be extended up to and including 12 October 2009. 2. Application for leave to appeal from orders of Tupman DCJ made on 14 September 2009 refused.
CATCHWORDS:	CRIMINAL LAW - appeal - evidence - notice of motion to exclude evidence relied on by Crown - notice of motion to permanently stay proceedings - admission of illegally obtained evidence under Evidence Act 1995 (NSW) s 138 discretion and refusal of stay - appeal rights from the decision - Criminal Appeal Act s 5F - interlocutory judgment or order matter of legal form - ruling on the admissibility of evidence not interlocutory - refusal of stay interlocutory - statutory authority to hear s5F application - application for leave to appeal refused - Criminal Appeal Act 1912 (NSW) - s 5F
LEGISLATION CITED:	Criminal Appeal Act 1912 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Evidence Act 1995 (NSW) Law Enforcement (Controlled Operations) Act 1997 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Bozatsis and Spanakakis (1997) 97 A Crim R 296 Dowe and Gedeon v Commissioner of NSW Crime Commission [2007] NSWSC 166; 169 A Crim R 43 Dowe and Gedeon v Commissioner of NSW Crime Commission [2007] NSWCA 296; 177 A Crim R 44 Dowe and Gedeon v Commissioner of NSW Crime Commisson [2008] HCA 43; 236 CLR 120 EK [2009] NSWCCA 4 Glossop [2001] NSWCCA 165 Groves (2 April 1990 NSWCCA unrep No 60407 of 1989) Kocer [2006] NSWCCA 328 Lavender [2002] NSWCCA 511; 37 MVR 491 Marchione [2002] NSWCCA 131; 128 A Crim R 574 Steffan (1990) 30 NSWLR 633
PARTIES:	Gilbert Gedeon The Crown
FILE NUMBER(S):	CCA 13683003/2006
COUNSEL:	P Lange (Applicant) D G Staehli SC; W H Baker (Crown)
SOLICITORS:	S Joyner (Applicant) Director of Public Prosecutions
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2006/11/0335
LOWER COURT JUDICIAL OFFICER:	Tupman DCJ
LOWER COURT DATE OF DECISION:	14 September 2009

3683003/06

ALLSOP P
HOWIE J
HISLOP J

Friday 20 November 2009

GEDEON v R

Judgment

1 THE COURT: On Monday 9 November 2009, the Court made orders extending time in which to file an application for leave to appeal to 12 October 2009 and refusing the application for leave to appeal. These are the reasons for that refusal.

2 The application was under the Criminal Appeal Act 1912 (NSW), s 5F(3) in respect of the dismissal of a notice of motion by a judge of the District Court (Tupman DCJ).

3 On 10 August 2009, the applicant came for trial before Tupman DCJ in the District Court at Sydney. The applicant had been committed for trial over three years before on 13 April 2006. The indictment that was presented contained two charges under the Drug Misuse and Trafficking Act 1985 (NSW) (the “DMT Act”), s 25:

“ Count 1: That between 5 February 2005 and 9 February 2005 at Five Dock in the State of New South Wales he supplied a prohibited drug, namely cocaine, in an amount not being less than the large commercial quantity of that drug. (That charge related to 2 kg of cocaine.)
Count 2: That between 15 March 2005 and 18 March 2005 at Five Dock in the State of New South Wales he supplied a prohibited drug, namely cocaine, in the amount not less than the commercial quantity for that drug. (That charge related to 750g of cocaine.)”

4 The applicant pleaded not guilty to both charges. Prior to the empanelling of the jury, the applicant sought to have the whole of the evidence in the Crown case excluded on the basis that it was illegally obtained and prima facie inadmissible by reason of Evidence Act1995 (NSW), s 138. The Crown opposed the application asking the judge to admit the evidence in the exercise of her discretion under that section.

5 The background which led the Crown to accept the necessity for an exercise of discretion under s 138 can be briefly stated as follows. From late 2004, after information from an informant (“Tom”), the Australian Federal Police (“AFP”), the New South Wales Crime Commission (“NSWCC”) and the New South Wales Police (“NSWP”) established a joint task force to investigate the activities of what they believed to be, on the information of Tom, a major drug importation syndicate.

6 As part of the investigation, members of the taskforce applied for, and were granted, several authorities pursuant to the Law Enforcement (Controlled Operations) Act1997 (NSW) (the “LECO Act”). The LECO Act made acts or omissions which would otherwise have been unlawful, not unlawful if carried out under an authority in connection with obtaining evidence of criminal activity or corrupt conduct or arresting someone involved in such activity or conduct or in frustrating such activity or conduct.

7 Relevantly, two controlled operation authorities were obtained by Mr Mark Standen, then Assistant Director of Investigations of the NSWCC. The first authority concerned the activity that led to the applicant’s first charge. Tom was supplied with 2 kg of cocaine to be supplied to the applicant, and Tom was to receive $340,000 from him in exchange. The relevant circumstances in the Crown case for this first charge were that Tom, at the direction of one Hatfield (said to be a member of the criminal syndicate), attended a meeting on 6 February 2005 at Rushcutters Bay. The applicant was present. Hatfield told Tom to sell the remainder of 7 kg of cocaine buried at a location in Sydney. Tom was wearing a listening device. The Crown case was that the applicant arranged for Tom to supply him with 2 kg of cocaine 2 days later for $340,000, $300,000 in cash and $40,000 on credit. The agreement was to meet at a Five Dock gym and swap bags. The next day, Tom took task force members to a park in Wahroonga and the cocaine was dug up and taken into the possession of the NSWCC. The next day, 2 kg of cocaine was given to Tom who then met the applicant as arranged. Tom was again wearing a listening device. The exchange of bags containing drugs and money took place.

8 The second authority concerned the possession and supply of 750g of cocaine for Tom to supply to the applicant and to receive $120,000 in payment. Between 22 February and 17 March 2005, the remaining 5 kgs of cocaine were supplied by Standen and other officers to Tom to supply others at Hatfield’s request. There were several controlled operation authorities obtained for these supplies. The authority relevant to the second charge was for a supply on 17 March 2005 to the applicant. The Crown case was that on 16 March 2005 Tom met the applicant and Hatfield at Rushcutters Bay. Tom was again wearing a listening device. It is alleged that the applicant agreed to buy 750g of cocaine from Hatfield for $120,000. Tom and the applicant made arrangements for supply the next day at Five Dock. The next day Tom and the applicant met. The cocaine was handed to the applicant. Arrangements were made for later payment. Later, on 6 April 2005, Tom met the applicant at Rushcutters Bay and was paid.

9 After the applicant’s committal, he and Mr Dowe, a fellow accused, took proceedings in the Supreme Court attacking the lawfulness of the controlled operation authorities concerning charges brought against them. On 6 March 2007, Hall J rejected their claims that the authorities were unlawfully granted: Dowe and Gedeon v Commissioner of NSW Crime Commission [2007] NSWSC 166; 169 A Crim R 43. An appeal to the Court of Appeal was dismissed: [2007] NSWCA 296; 177 A Crim R 44. An appeal to the High Court was, however, successful: [2008] HCA 43; 236 CLR 120. The relevant controlled operation authorities were held to be invalid, thereby removing the statutory protection of the LECO Act from various unlawful acts committed by Tom, Standen and others in the investigation. It was therefore necessary for the Crown to rely upon the Evidence Act, s 138 if the evidence of the events recounted above was to be admitted.

10 On 10 August 2009, the applicant filed in Court a motion seeking “orders” as follows:

“1. That all the evidence sought to be relied on by the Crown to prove the charges in the attached Indictment against the Defendant be excluded pursuant to section 138 of the Evidence Act (NSW) 1995.
2. Any such other order the court deems appropriate.”

11 On 27 August 2009, when the matter was before Tupman DCJ for argument, an amended notice of motion was filed in Court seeking “orders” as follows:

“1. That all the evidence sought to be relied on by the Crown to prove the charges in the filed indictment against the Defendant be excluded pursuant to section 138 of the Evidence Act (NSW) 1995.
2. That the prosecution case is doomed to fail as a consequence of order 1 and that a permanent stay be granted.
3. Any such order that the court deems necessary.”
(emphasis added)

12 On 14 September 2009, Tupman DCJ delivered a 59 page judgment dealing with the Crown’s application and the applicant’s amended motion. Her Honour concluded that she should exercise her discretion under the Evidence Act, s 138 to admit the impugned evidence. For present purposes, it is unnecessary to describe her Honour’s reasoning or to be precise about the evidence in question. In the final paragraph of her reasons, her Honour said at [72]:

“Taking into account all of the matters which I am required under Section 138(3) and those other matters to which I have referred, on balance I accept that the desirability of admitting the evidence, despite its being in contravention of Australian law, is outweighed by the undesirability of doing so and it will be admitted in the exercise of my discretion under Section 138(1) of the Evidence Act . The notice of motion is thus dismissed.”

It should be noted that her Honour obviously made a slip in that passage and she intended that her finding should be understood as if the words “is outweighed by the undesirability of doing so” were read as “outweighs the undesirability of not doing so”.

13 Given what was before the Court, the judge can be seen in [72] to have undertaken two judicial acts:

(a) to rule on the admissibility of evidence; and

(b) to dismiss a motion, being the amended notice of motion filed on behalf of the applicant.

14 Subsections 5F(1), (2), (3) and (3A) of the Criminal Appeal Act are, relevantly in the following terms:

“5F Appeal against interlocutory judgment or order

(1) This section applies to:

(a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and
…


(2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies.

(3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings:

(a) if the Court of Criminal Appeal gives leave to appeal, or
(b) if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal.


(3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution’s case.”

15 It is established that under s 5F a decision on a ruling on the admissibility of evidence is not an interlocutory judgment or order. Thus, no appeal lies under s 5F from a ruling on evidence: Steffan (1990) 30 NSWLR 633 at 639-642; Glossop [2001] NSWCCA 165 at [15]-[19]; Lavender [2002] NSWCCA 511; 37 MVR 491 at [8] 492; Kocer [2006] NSWCCA 328 at [1], [10], [15] and [18]; and EK [2009] NSWCCA 4 at [11]-[12] and [19].

16 If the applicant’s motion had been dealt with in its unamended form there could be no doubt that the substance of the order dismissing the motion was a ruling on evidence. The addition of the prayer for a stay is said to change the position.

17 The application for the stay was wholly conditional (in form and in substance) on the exclusion of the evidence (being the form of order 1 (“be excluded”). No argument for a stay, beyond a lack of admissible evidence, was put forward.

18 In Bozatsis and Spanakakis (1997) 97 A Crim R 296 a permanent stay was granted upon the rejection of certain evidence. The appeal from the stay order was held to be competent. Notwithstanding that a ruling on evidence lay at the foundation of the stay order, in substance the appeal was from the stay order. If no appeal could be brought no mechanism existed for testing the correctness of the rulings and the permanent stay thereafter governed the accused’s position. Section 5F(3A) now deals with Crown appeals in relation to rulings on evidence.

19 In Marchione [2002] NSWCCA 131; 128 A Crim R 574 a stay was sought from the trial judge on the ground that the “evidence available to the Crown was not capable of establishing the appellant’s guilt”: at 575 [8]. It was not a case dealing with the rejection or admission of evidence. The certificate under s 5F(3)(b) issued by the judge in that case reflected the legal issues concerned which did not encompass the admissibility of evidence: see 575 [10]. At 577 [15]-[17] Bell J (with whom Heydon JA and Dowd J agreed) said:

“[15] In the present case although it would seem that there was some lack of formality in the way the appellant’s application was framed, it was an application that the proceedings charged in count 1 of the indictment be permanently stayed. An order permanently staying an indictment or, conversely, declining so to do is one which falls within the terms of s 5F: Edelsten (1989) 18 NSWLR 213; 45 A Crim R 289; Bozatsis (1997) 97 A Crim R 296. There is undoubted jurisdiction to stay proceedings on indictment upon the ground that their continuance would amount to an abuse of the process of the Court: Jago v District Court (NSW) (1989) 168 CLR 23; 41 A Crim R 307; Ridgeway (1995) 184 CLR 19; 78 A Crim R 307.
[16] The application was advanced upon the basis that the abuse was of the character described by Mason CJ, Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 at 393:
‘The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the Court, which exist to administer justice with fairness and the impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse if they can be clearly seen to be foredoomed to fail.’
[17] The success of the appellant’s application depended upon persuading the primary judge that the evidence upon which the Crown proposed to rely upon at trial was not capable of supporting the charge which it brought. It is true that such a contention if advanced, and rejected, at the close of the Crown case would not have afforded the appellant a basis for seeking leave to appeal under s 5F(3)(a). However, the order appealed against is that of a refusal of a stay and not a ruling made during the trial such as that in Lethlean [(1995) 83 A Crim R 197] . ”

20 Nevertheless, at 577 [18], Bell J quoted the Court in Steffan at 640-641 where the relationship between ruling on evidence and stay applications was discussed as follows:

“It was submitted by the Crown that, in order to prevent the circumvention of the restricted terms of s 5F, this Court should always refuse leave to appeal from a refusal of a stay where that decision is based upon a ruling as to the admissibility of evidence. We are not prepared to accept that submission in the absolute terms in which it was expressed. Although it is not easy to formulate an example, there may well be the rare case where a ruling upon the admissibility of evidence in favour of the accused would demonstrate a proper basis for a stay of proceedings, so that it would be appropriate to grant leave to appeal from a refusal of a stay in such a case notwithstanding that the principal legal issue which would be determined in the appeal was the admissibility of evidence. This Court’s decision in Groves did not go so far as this submission by the Crown goes.”

21 At 577-578 [19], Bell J then stated that it was appropriate to bear in mind the observations in Groves (2 April 1990 NSWCCA unrep No 60407 of 1989) concerning the limits of a s 5F appeal. Relevantly the Court in Groves said:

“In this way it was argued the applicant ‘could not lawfully be convicted’ on the evidence proposed to be adduced by the Crown, so that the further prosecution of him would amount to an abuse of process.
The applicant faces a difficulty in seeking to raise either proposition in this case by way of an application for leave to appeal under s 5F. First, the trial judge was not invited to rule on the admissibility of the evidence or to exercise the discretion in question, nor was he asked to rule that there would be insufficient evidence to go to the jury. Had he made any such ruling at the commencement of or during the trial, it would not have been amenable to an appeal under s 5F: Edelsten and Powch . It is difficult to see why the applicant should be permitted to have an appellate Court review a decision refusing to stay the further prosecution of the proceedings on these grounds, when they were not taken before the trial judge, and when the relevant rulings during the trial could not have been reviewed save by appeal after conviction pursuant to s 5 of the Act [ Criminal Appeal Act 1912 (NSW)].
As the decisions in Edelsten and Powch show appeals under s 5F are to be kept within strict confines. This Court should be slow to permit those decisions to be watered down by allowing parties to pursue, as grounds for stay applications, matters which are more properly the subject of rulings or decisions in the trial and are amenable to appeal under s 5.
…
Although we do not wish to foreclose entirely the possibility that considerations relative to the ability of the Crown to call a case sufficient to go to the jury, or relative to the integrity of a verdict, cannot be taken into account on a stay application brought prior to trial, we cannot as presently advised envisage circumstances in which that might be appropriate.”


(emphasis added)

22 It can be readily accepted that, in practical effect, this is an application to appeal against a ruling on evidence. The Crown submitted that this fact should found the conclusion that the Court had no statutory authority to hear the application. This was reinforced, it was submitted, when regard was had to the conditional nature of paragraph 2 of the amended motion. It was submitted that substance should be preferred over form.

23 The difficulty with this argument is that s 5F is directed to questions of legal form: the existence of an “interlocutory judgment or order”. Here, the judge dismissed a motion which contained a prayer for a stay, albeit conditionally phrased. On this view there was, albeit “in form”, an interlocutory order and the Court has statutory authority to entertain an application under s5F.

24 Nevertheless, in our view, the application should be refused. Even assuming that the form of the amended notice of motion gave this Court jurisdiction, any discretion should be exercised in conformity with the fact that the entire substance of the application concerns the ruling on the admissibility of evidence. In accordance with Steffan, it should not be stated categorically that the Court should always refuse leave to appeal from a refusal of a stay where that decision is based on a ruling as to admissibility of evidence. However, no factor, in our view, here takes the matter out of what would ordinarily be the fate of such an application. It is true that the rejection of all the evidence would in all likelihood lead to a stay being granted. That, however, is insufficient here to make this the truly exceptional case. To grant leave and hear the appeal would almost certainly delay the applicant’s trial once again. Over three years have passed since he was committed and over five years from the events said to found the charges. The clear desirability of finalising the proceedings against the applicant is a powerful consideration.

25 The judge dealt with the evidence and arguments with apparent care. That is not to say that there may not have been error committed. None, however, has been demonstrated in the arguments put to this Court. The applicant, first argued that the judge erred in concluding that the members of the taskforce had a reasonable excuse for possessing the drugs. We see no apparent error of principle in how her Honour dealt with this issue. Secondly, it was submitted that the judge improperly took into account the gravity of the charges against the applicant in assessing the gravity of the impropriety in the contravention by the authorities. We do not read her Honour’s reasons as having truly done so. Thirdly, it was submitted that the judge erred in stating that the risk of harm to third parties was not high. This expression of the judge must be read in context; nevertheless the way her Honour put it is open to debate. That said, we do not see it as likely to vitiate, on its own, her Honour’s conclusion. These matters are insufficient to persuade us of the existence of arguments of sufficient strength to warrant the further delay to the commencement of the trial.

26 Further, if it be the case that the applicant were to be convicted of the charges, or either of them, his appeal rights in relation to the evidence will be unaffected.

27 In our view, no reason of any persuasiveness was put forward to grant leave.

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