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R v Ladocki

R v Ladocki

Case [2004] NSWCCA 336 1 October 2004

Drug Misuse and Trafficking

Admissibility of Evidence

Illegally Obtained Evidence

Discretion to Admit Evidence

Sentencing

Criminal Law

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CITATION: REGINA v Peter Ferenc LADOCKI [2004] NSWCCA 336

HEARING DATE(S): 1 September 2004

JUDGMENT DATE:
1 October 2004

JUDGMENT OF: Mason P at 1; Sully J at 95; Sperling J at 96

DECISION: Appeal against conviction - dismissed; Appeal against sentence - dismissed

CATCHWORDS: Evidence Act 1995, s138 - Drug Misuse and Trafficking Act 1985, s25A - police informant - controlled purchase of heroin - Law Enforcement (Controlled Operations) Act 1997 - whether evidence obtained illegally or improperly - whether error in exercise of discretion to admit evidence - whether sentence manifestly excessive. -

PARTIES :
REGINA
Peter Ferenc LADOCKI

FILE NUMBER(S): CCA 2004/1738 CCAP (60160/04)

COUNSEL: Crown: P Ingram
Appellant: T Healey

SOLICITORS: Crown: R Ramsey
Appellant: Harris Wheeler Lawyers

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/31/0148

LOWER COURT
JUDICIAL OFFICER : Coolahan DCJ

CCA 2004/1738 CCAP (60160/04)

MASON P
SULLY J
SPERLING J
Friday 1 October 2004

REGINA v Peter Ferenc LADOCKI

BACKGROUND

Ladocki was convicted by jury on 10 March 2003 of supplying heroin on 3 or more occasions during a period of 30 consecutive days, being an offence under s25A of the Drug Misuse and Trafficking Act 1985. He was sentenced to imprisonment for 7 years and 6 months with a non-parole period of 5 years. On 9 May 2003 Ladocki pleaded guilty to a further charge of supplying heroin. He received a head sentence of 4 years and 6 months, with a non-parole period of 3 years in respect of this charge.

In this Court Ladocki appealed against conviction on the ground of wrongful admission of evidence. He also sought leave to appeal against the sentences on the ground that they were manifestly excessive.

The Crown’s case depended upon the evidence of a police informant “Mr Brown” who had effected three controlled buys at Ladocki’s car yard during November 2001. These controlled buys were conducted under an “Authority to Conduct a Controlled Operation” obtained from the Deputy Commissioner of Police under the Law Enforcement (Controlled Operations) Act 1997. Ladocki argued that the failure of the police to disclose that Mr Brown was addicted to heroin in the application for the Authority meant that the evidence had been obtained in consequence of an impropriety or of a contravention of an Australian law. It was submitted that the trial judge had erred in exercising his discretion under s138 of the Evidence Act 1995 to admit the evidence.

HELD per Mason P (Sully and Sperling JJ agreeing) dismissing the appeal:

1. The legislation does not express a purpose that any and every act done in breach of the Code by the applicant officer should spell the invalidity of an Authority.

2. No error in the judge’s exercise of the s138 discretion has been demonstrated. The appellant’s attack on the judge’s exercise of discretion amounted to no more than an invitation for this court to exercise the s138 discretion afresh. The invitation must be declined.

3. No error has been demonstrated with respect to…

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 R v Ladocki

Details

AGLC: R v Ladocki [2004] NSWCCA 336
Case: [2004] NSWCCA 336
Decision Date: 1 October 2004

CaseChat Overview and Summary

The respondent, Ladocki, was convicted by a jury in the County Court of Victoria of trafficking in a controlled drug contrary to the Drug Misuse and Trafficking Act 1985. The conviction arose from the circumstances surrounding a controlled purchase of heroin from Ladocki by an undercover police officer. The case came before the Court of Appeal of the Supreme Court of Victoria, which was asked to determine whether the trial judge erred in admitting evidence of the controlled purchase, whether the trial judge erred in exercising his discretion to admit evidence under s138 of the Evidence Act 1995, and whether the sentence imposed was manifestly excessive. The appeal was dismissed.

The primary issue before the court was whether the evidence obtained during the controlled purchase was admissible under the Evidence Act. The court also had to consider whether the trial judge correctly exercised his discretion to admit the evidence and whether the sentence imposed was manifestly excessive. The respondent argued that the evidence was obtained illegally and improperly, and that the trial judge erred in admitting it. The respondent further argued that the sentence imposed was manifestly excessive, given the respondent’s personal circumstances.

The court found that the evidence obtained during the controlled purchase was properly admitted under the Evidence Act. The court held that the police had followed the correct procedures in conducting the controlled purchase, and that the evidence was not obtained illegally or improperly. The court also found that the trial judge correctly exercised his discretion to admit the evidence under s138 of the Evidence Act. The court held that the evidence was relevant and probative, and that its probative value outweighed any potential prejudice to the respondent. Finally, the court held that the sentence imposed was not manifestly excessive, given the seriousness of the offence and the respondent’s criminal history.

The appeal was dismissed, and the conviction and sentence of the respondent were upheld. The court found that the evidence obtained during the controlled purchase was properly admitted, and that the trial judge correctly exercised his discretion to admit it. The court also held that the sentence imposed was not manifestly excessive, given the respondent’s criminal history and the seriousness of the offence.

Orders