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Gedeon v The Queen

Gedeon v The Queen

Case [2009] NSWCCA 278 20 November 2009

Appeal

Admissibility of Evidence

Interlocutory Orders

Refusal of Stay

Criminal Law

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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…

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 The Queen [2009] NSWCCA 278
Case: [2009] NSWCCA 278
Decision Date: 20 November 2009

CaseChat Overview and Summary

In the case of Gedeon v The Queen, the appellant was convicted in the Supreme Court of New South Wales of multiple counts of murder and other related offences. The dispute arose from the admissibility of evidence obtained through illegal means, specifically, the use of an unauthorised recording device. The appellant sought to exclude this evidence and, failing that, to permanently stay the proceedings. The appeal was brought to the Court of Criminal Appeal, which had to determine the admissibility of the illegally obtained evidence under s 138 of the Evidence Act 1995 (NSW) and the validity of the appellant's right to appeal the decision to exclude the evidence under s 5F of the Criminal Appeal Act 1912 (NSW).

The court had to decide whether the ruling on the admissibility of evidence was an interlocutory judgment or order of legal form and, therefore, whether the appellant had the right to appeal under s 5F of the Criminal Appeal Act 1912 (NSW). The court considered the statutory authority to hear an application for leave to appeal under s 5F and whether the refusal of a stay was an interlocutory judgment or order of legal form. The court also had to determine if the ruling on the admissibility of evidence was an interlocutory judgment or order of legal form and whether the appellant had the right to appeal the decision.

The court found that the ruling on the admissibility of evidence was not an interlocutory judgment or order of legal form. The court held that the refusal of a stay was an interlocutory judgment or order of legal form, and therefore, the appellant had the right to appeal under s 5F of the Criminal Appeal Act 1912 (NSW). However, the court found that the appellant did not have the statutory authority to hear an application for leave to appeal under s 5F because the ruling on the admissibility of evidence was not an interlocutory judgment or order of legal form. Therefore, the application for leave to appeal was refused. The court also found that the evidence obtained through the unauthorised recording device was admissible under s 138 of the Evidence Act 1995 (NSW), and the refusal of a stay was appropriate.

The Court of Criminal Appeal refused the appellant's application for leave to appeal the decision of the Supreme Court of New South Wales. The court held that the ruling on the admissibility of evidence was not an interlocutory judgment or order of legal form, and therefore, the appellant did not have the right to appeal under s 5F of the Criminal Appeal Act 1912 (NSW). The court also held that the evidence obtained through the unauthorised recording device was admissible under s 138 of the Evidence Act 1995 (NSW), and the refusal of a stay was appropriate. The conviction and sentence of the appellant were upheld.

Orders