Regina v Peter Ferenc Ladocki [2002] NSWCCA 442

New South Wales Court of Criminal Appeal

CITATION : Regina v Peter Ferenc Ladocki [2002] NSWCCA 442 FILE NUMBER(S) : CCA 60436/02 HEARING DATE(S) : 4 November 2002 JUDGMENT DATE : 4 November 2002

PARTIES : Regina Peter Ferenc Ladocki JUDGMENT OF : Sully J at 1; Dunford J at 8; Bell J at 9

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 02/31/0148 LOWER COURT JUDICIAL Coolahan DCJ OFFICER :

COUNSEL : P. E. Barrett - Crown T. M. Healey - Appellant SOLICITORS : S. E. O'Connor - Crown Harris Wheeler Lawyers - Appellant

Criminal Appeal Act 1912 (NSW) LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 (NSW) Law Enforcement (Controlled Operations) Act 1997 (NSW) Evidence Act 1995 NSW CASES CITED: The Queen v Steffan (1993) 30 NSWLR 633 DECISION : Leave to appeal refused

IN THE COURT OF CRIMINAL APPEAL 60436/02

SULLY J DUNFORD J BELL J

Monday 4 November 2002 REGINA v PETER FERENC LADOCKI Judgment 1 SULLY J: Before the Court is an application brought pursuant to section 5F of the Criminal Appeal Act 1912 (NSW). The application seeks leave to appeal against a particular decision of a Judge of the District Court. The relevant background is as follows. 2 The applicant, Mr. Ladocki, has been presented for trial in the District Court at Newcastle upon an indictment charging him with a contravention of section 25A of the Drug Misuse and Trafficking Act 1985 (NSW). The Crown case against the applicant is substantially a case based upon evidence obtained by investigating authorities during the course of an operation purporting to be a controlled operation in terms of the Law Enforcement (Controlled Operations) Act 1997 NSW. 3 An extensive voir dire hearing has been conducted by the learned trial Judge. The hearing concentrated initially upon a challenge to the validity of the authorisation of the particular operation, the conduct of which yielded the evidence upon which the Crown case against the applicant substantially relies. The learned trial Judge has ruled that the requisite formalities of the legislation were not complied with, so that the evidence obtained in the course of the carrying out of those operations was evidence unlawfully or illegally obtained. That particular decision is not subject to present challenge. 4 The learned trial Judge thereupon considered the exercise of his Honour's relevant discretion pursuant to section 138 of the Evidence Act 1995 NSW. His Honour has ruled that he will exercise in favour of the Crown that discretion, and that he will thereupon admit the challenged evidence at the trial. It is that decision which is the subject of the present application. 5 It seems to me that the present application comes to grief on the very threshold, as it were, by reference to the principle established by the decision of this Court (Hunt CJ at CL, Grove and Sharpe JJ) in The Queen v Steffan (1993) 30 NSWLR 633. At 639G the Court, in a joint judgment, says this: "Accordingly, in our opinion, a ruling on evidence made in advance of or in the course of the trial, in either the Supreme Court or the District Court, is not an interlocutory judgment or order within the meaning of s 5F of the Criminal Appeal Act. Even if we were wrong in that conclusion, the fact that the ruling can always be altered means that the circumstances would have to be unusual for leave to appeal to be granted prior to conviction." 6 At 642G the Court says in its judgment: "The requirement of leave in s 5F evidences a legislative intention to uphold the authority of the trial judge, and it reflects the long standing policy of the courts that it is undesirable that criminal prosecutions should be interfered with by interlocutory appellate procedures prior to convictions and sentence. The grant of leave for the purpose sought in this case would amount to a clear breach of that policy." 7 In my opinion, those statements of principle, standing, as they do, as authoritative, entail that the present application cannot succeed. In my opinion, the leave sought should be refused. 8 DUNFORD J: I agree 9 BELL J: I also agree. 10 SULLY J: The Court orders accordingly. **********