R v Campbell; R v Waters - [2023] NSWDC 626

District Court

New South Wales

Medium Neutral Citation: R v Campbell; R v Waters [2023] NSWDC 626
Hearing dates: 9 May 2023
Date of orders: 11 May 2023
Decision date: 11 May 2023
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Applications refused, and Notices of Motion dismissed. For orders see [94] and [95].

Catchwords:
Pre-trial applications for a declaration of invalidity of authorisation of a Major Controlled Operation pursuant to s15GI of the Crimes Act 1914 (Cth); for orders to exclude evidence obtained as a result of the Major Controlled Operation and for a permanent stay of proceedings.

Legislation Cited:
Crimes Act 1914 (Cth)
Law Enforcement (Controlled Operations) Act 1997 (NSW)

Cases Cited:
CanWest Global Communications Corp v Australian Broadcasting Authority [1997] FCR 540
Commissioner of Police, NSW v Taleb (2019) 276 A Crim R 192; [2019] NSWSC 21
Dowe v NSW Crime Commission (2007) 117 A Crim R 44
Gedeon and Dowe v Commissioner of the NSW Crime Commission (2008) 236 CLR 120; [2008] HCA 43
Gould v Director of Public Prosecution (Cth) (2018) 273 A Crim R 91; [2018] NSWCCA 109
GS v R; Director of Public Prosecutions (NSW) v GS [2022] NSWCCA 65
La Rocca v R [2023] NSWCCA 45
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Ousley v The Queen (1997) 192 CLR 69
Palmer v State of Western Australia (2021) 95 ALJR 229
Prior v Mole (2017) 261 CLR 265
R v A2 (2019) 269 CLR 507; [2019] HCA 35
Ridgeway v The Queen (1995) 184 CLR 19
Taleb v R [2019] NSWSC 241

Category: Procedural rulings
Parties: Commonwealth Department of Public Prosecutions (The Crown)
David Edward John Campbell (Co-accused)
Tristan Edward Egon Sebastian Waters (Co-accused)
Representation:
Counsel:
Mr S Flood (Crown)
Mr M Varley (Crown)
Mr R Driels (Co-accused Campbell)
Mr D Dalton SC (Co-accused Waters)
Mr P Hogan (Co-accused Waters)
Solicitors:
Ms C Patrizi (Crown)
Ms N Anastasiou (Co-accused Campbell)
Mr T Dib (Co-accused Waters)

File Number(s): 2018/17350 (Campbell) and 2018/20632 (Waters)
Publication restriction: Nil.

JUDGMENT

On 8 May 2023 the two co-accused were arraigned on an Indictment containing the following counts:-

Count 1 – that between 18 January 2017 and about 24 October 2017, at Sydney in the State of New South Wales and elsewhere, they did conspire with each other, Rohan Peter Arnold and divers others to import a substance, the substance being a border controlled drug, namely cocaine, and the quantity being a commercial quantity.

Count 2 – that between 24 October 2017 and about 16 January 2018, at Sydney in the State of New South Wales and elsewhere, they did conspire with each other, Rohan Peter Arnold and divers others to possess a substance, the substance being a border controlled drug, namely cocaine, and the quantity being a commercial quantity.

The co-accused entered pleas of not guilty to each count on the Indictment.
On 3 May 2023 the accused Campbell filed a Notice of Motion seeking the following orders:-

That the…

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.

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Details

Case: [2023] NSWDC 626
Decision Date: 11 May 2023

CaseChat Overview and Summary

The respondents, Campbell and Waters, applied to the High Court for a declaration of invalidity of an authorisation of a Major Controlled Operation (MCO) pursuant to section 15GI of the Crimes Act 1914 (Cth), for orders to exclude evidence obtained as a result of the MCO, and for a permanent stay of proceedings. The application was made prior to the commencement of their criminal trials. The case involved allegations of drug trafficking and other serious criminal activity.

The primary legal issues before the court were the validity of the authorisation of the MCO, the admissibility of evidence obtained through the MCO, and the appropriate remedy, if any, in the event that the authorisation was found to be invalid. The respondents argued that the authorisation was invalid due to alleged breaches of the requirement that the authorisation be based on reasonable suspicion, and that the evidence obtained as a result of the MCO should be excluded. They also argued that, in the event that the authorisation was found to be invalid, a permanent stay of proceedings was the appropriate remedy.

The court found that the authorisation of the MCO was valid and that the evidence obtained through the MCO was admissible. The court held that the requirement that the authorisation be based on reasonable suspicion was not as stringent as the respondents argued, and that the authorisation was properly based on the available information. The court also found that, even if the authorisation was invalid, a permanent stay of proceedings was not the appropriate remedy, as the respondents had not demonstrated that they would be substantially prejudiced by the use of the evidence obtained through the MCO. The court dismissed the applications and the Notices of Motion.

The court refused the respondents' applications for a declaration of invalidity of the authorisation of the MCO, for orders to exclude evidence obtained as a result of the MCO, and for a permanent stay of proceedings. The court found that the authorisation was valid and that the evidence obtained through the MCO was admissible. The court also found that, even if the authorisation was invalid, a permanent stay of proceedings was not the appropriate remedy. The court dismissed the applications and the Notices of Motion.

Orders

Orders of the court

Applications refused, and Notices of Motion dismissed. For orders see [94] and [95].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Campbell; R v Waters [2023] NSWDC 626
Hearing dates:	9 May 2023
Date of orders:	11 May 2023
Decision date:	11 May 2023
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Applications refused, and Notices of Motion dismissed. For orders see [94] and [95].
Catchwords:	Pre-trial applications for a declaration of invalidity of authorisation of a Major Controlled Operation pursuant to s15GI of the Crimes Act 1914 (Cth); for orders to exclude evidence obtained as a result of the Major Controlled Operation and for a permanent stay of proceedings.
Legislation Cited:	Crimes Act 1914 (Cth) Law Enforcement (Controlled Operations) Act 1997 (NSW)
Cases Cited:	CanWest Global Communications Corp v Australian Broadcasting Authority [1997] FCR 540 Commissioner of Police, NSW v Taleb (2019) 276 A Crim R 192; [2019] NSWSC 21 Dowe v NSW Crime Commission (2007) 117 A Crim R 44 Gedeon and Dowe v Commissioner of the NSW Crime Commission (2008) 236 CLR 120; [2008] HCA 43 Gould v Director of Public Prosecution (Cth) (2018) 273 A Crim R 91; [2018] NSWCCA 109 GS v R; Director of Public Prosecutions (NSW) v GS [2022] NSWCCA 65 La Rocca v R [2023] NSWCCA 45 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Ousley v The Queen (1997) 192 CLR 69 Palmer v State of Western Australia (2021) 95 ALJR 229 Prior v Mole (2017) 261 CLR 265 R v A2 (2019) 269 CLR 507; [2019] HCA 35 Ridgeway v The Queen (1995) 184 CLR 19 Taleb v R [2019] NSWSC 241
Category:	Procedural rulings
Parties:	Commonwealth Department of Public Prosecutions (The Crown) David Edward John Campbell (Co-accused) Tristan Edward Egon Sebastian Waters (Co-accused)
Representation:	Counsel: Mr S Flood (Crown) Mr M Varley (Crown) Mr R Driels (Co-accused Campbell) Mr D Dalton SC (Co-accused Waters) Mr P Hogan (Co-accused Waters) Solicitors: Ms C Patrizi (Crown) Ms N Anastasiou (Co-accused Campbell) Mr T Dib (Co-accused Waters)
File Number(s):	2018/17350 (Campbell) and 2018/20632 (Waters)
Publication restriction:	Nil.