Dowe v Commissioner of the New South Wales Crime Commission & Anor; Gedeon v Commissioner of the New South Wales Crime Commission & Anor [2007] NSWCA 296

Dowe v Commissioner of the New South Wales Crime Commission & Anor; Gedeon v Commissioner of the New South Wales Crime Commission & Anor [2007] NSWCA 296

The controlled operation authorities issued under the Law Enforcement (Controlled Operations) Act 1997 (NSW) were not invalidated by the absence of Commonwealth approval, as the Act's definition of 'controlled activity' and excusing effect is limited to State law. The s7(1)(b) prohibition is not a jurisdictional fact for court determination, but a necessary consideration for the Commissioner. The decisions to issue the authorities were not irrational or unreasonable in the relevant administrative law sense. Accordingly, each appeal is dismissed, and claimants are ordered to pay costs.

Jurisdiction
Australia
Judgment Date
19 October 2007
Procedural Posture
Civil Appeal (administrative/judicial Review) / Court of Appeal Judgment on Leave to Appeal, With Directions Regarding Validity of Authorities; Interlocutory to Criminal Proceedings
Outcome
Appeals dismissed after leave granted and directions to file notice of appeal; Claimants to pay Respondents' costs
Legal Topics
['controlled Operations' 'judicial Review of Administrative Decisions' 'validity of Controlled Operation Authorities' 'jurisdictional Facts' 'statutory Construction' 'exclusion of Evidence']
['criminal Law' 'administrative Law'] ['controlled Operations' 'judicial Review of Administrative Decisions' 'validity of Controlled Operation Authorities' 'jurisdictional Facts' 'statutory Construction' 'exclusion of Evidence']

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Procedural Posture

Civil Appeal (administrative/judicial Review) / Court of Appeal Judgment on Leave to Appeal, With Directions Regarding Validity of Authorities; Interlocutory to Criminal Proceedings

Legal Issues

  1. 1 ['Does the failure to obtain a Commonwealth certificate for controlled operations invalidate State controlled operation authorities under the Law Enforcement (Controlled Operations) Act 1997 (NSW)?' 'Is the requirement in s7(1)(b) of the LECO Act—a prohibition on granting an authority likely to seriously endanger health or safety—a jurisdictional fact?' "What is the scope of 'conduct' for s7(1)(b)?" "Does participating in controlled operations under State authority amount to a 'reasonable excuse' for Commonwealth offences?"]

Ratio Decidendi

The controlled operation authorities issued under the Law Enforcement (Controlled Operations) Act 1997 (NSW) were not invalidated by the absence of Commonwealth approval, as the Act's definition of 'controlled activity' and excusing effect is limited to State law. The s7(1)(b) prohibition is not a jurisdictional fact for court determination, but a necessary consideration for the Commissioner. The decisions to issue the authorities were not irrational or unreasonable in the relevant administrative law sense. Accordingly, each appeal is dismissed, and claimants are ordered to pay costs.

Court Disposition

Appeals dismissed after leave granted and directions to file notice of appeal; Claimants to pay Respondents' costs

Orders

  • ['Grant leave to appeal' 'Direct each Claimant to file a Notice of Appeal within 14 days' 'Upon filing Notice of Appeal, each appeal is dismissed' "Claimant to pay Respondents' costs of each proceeding"]