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Yates (a Pseudonym) v The Queen

Yates (a Pseudonym) v The Queen

Case [2017] VSCA 188 20 July 2017

Criminal Liability

Admissibility of Evidence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0087

TREVOR YATES (A PSEUDONYM)	Applicant
v
THE QUEEN	Respondent

AND

S APCR 2017 0090

STEVEN WATERS (A PSEUDONYM)	Applicant
v
THE QUEEN	Respondent

AND

S APCR 2017 0091

ANDREW COBB (A PSEUDONYM)	Applicant
v
THE QUEEN	Respondent

AND

S APCR 2017 0092

IAN WILSON (A PSEUDONYM)	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN, SANTAMARIA and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 June 2017
DATE OF JUDGMENT:	20 July 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 188 First revision 14 August 2017

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CRIMINAL LAW – Alleged drug offences – Trafficking in not less than large commercial quantity of heroin – Interlocutory appeal from ruling of trial judge not to exclude evidence of controlled purchases.

EVIDENCE – Admissibility – Controlled purchase transactions pursuant to authority – Crimes Act 1914 (Cth), Part IAB – Whether evidence illegally or improperly obtained – Authority valid – Conduct authorised by authority – Crimes Act 1914 (Cth) s 15GK(1)(f).

WORDS AND PHRASES – ‘Arrangement’.

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APPEARANCES:	Counsel	Solicitors
For the applicant (Yates)	Mr O P Holdensen QC with Ms S T Keating	Lethbridges
For the applicant (Waters)	Mr M J Gumbleton	David Barrese & Associates
For applicant (Cobb)	Mr A V Chernok	Theo Magazis & Associates
For applicant (Wilson)	Mr M P McGrath	Melasecca Kelly & Zayler
For the respondent	Mr P A Stefanovic with Mr C T Carr	Office of Public Prosecutions
For the Chief Commissioner of Police	Ms R Orr QC with Ms C M Harris	Victorian Government Solicitor’s Office

WHELAN JA
SANTAMARIA JA
ASHLEY JA:

In the course of investigating drug-related crimes, the Australian Federal Police obtained a Controlled Operation Authority pursuant to Part IAB of the Crimes Act 1914 (Cth) (‘the Authority’). The Authority authorised identified people, including a person referred to as ‘male Tony’, to engage in certain criminal conduct in furtherance of the investigation.

The applicants have been charged with various offences including trafficking in not less than a large commercial quantity of heroin.[1] The trafficking charges arise out of four controlled purchases made by certain persons on 30 October 2014, 19 November 2014, 9 December 2014 and 15 December 2014 purportedly pursuant to the Authority. To a significant extent, the prosecution case relies on this evidence.
[1]Drugs, Poisons and Controlled Substances Act 1981 s 71.

By pre-trial submissions, the applicants contended that evidence of the four controlled purchases should not be admitted on the ground that those purchases were unlawful or improper because the relevant conduct by the persons who made the purchases was not exempt under by Part IAB of the Crimes Act 1914 (Cth) (‘the Act’).

The applicants contended that the relevant conduct was unlawful or improper because the Authority itself was invalid. It was contended that the description of the nature of the controlled conduct that the law enforcement participants were authorised to engage in, and the particulars of the controlled conduct that the civilian participants were authorised to engage in,…

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 Yates (a Pseudonym) v The Queen

Details

AGLC: Yates (a Pseudonym) v The Queen [2017] VSCA 188
Case: [2017] VSCA 188
Decision Date: 20 July 2017

CaseChat Overview and Summary

The matter before the court involved Yates, whose identity has been protected by the use of a pseudonym, who was appealing against their conviction and sentence for drug trafficking offences. The appellant was found guilty of trafficking in a large commercial quantity of heroin. The appeal was focused on the admissibility of certain evidence obtained through controlled purchases authorised under the Crimes Act 1914 (Cth). The appeal was heard in the High Court of Australia, which had jurisdiction to review the decision of the trial judge to admit this evidence.

The central legal issue before the court was whether the evidence obtained from the controlled purchases was admissible. The appellant argued that the evidence was obtained illegally or improperly and should be excluded. The court was required to determine whether the authority under which the controlled purchases were made was valid, whether the authority properly authorised the conduct, and whether the evidence was obtained in accordance with the authority. These questions were pivotal in assessing the admissibility of the evidence under sections 15GK(1)(f) of the Crimes Act 1914 (Cth).

The court considered the statutory framework governing controlled purchases and the criteria for determining the validity of the authority and the conduct. It held that the authority issued was valid and that the controlled purchase transactions were properly authorised. The court found that the conduct of the officers involved in the controlled purchases was in accordance with the authority, and therefore the evidence obtained was not obtained illegally or improperly. Consequently, the evidence was admissible and the trial judge's decision to admit it was upheld.

The High Court dismissed the appeal and affirmed the conviction and sentence of the appellant. The evidence obtained through the controlled purchases was deemed properly obtained and admissible, and thus the trial judge's ruling was correct. The appellant's conviction and sentence for trafficking in a large commercial quantity of heroin were therefore upheld.

Orders