Dowe v R [2009] NSWCCA 23

Dowe v R [2009] NSWCCA 23

The appeal failed because, although the Dowe Authority was later declared invalid, the law enforcement officers acted under a bona fide belief that the authority was valid and did not deliberately or recklessly contravene the law. The impugned evidence was highly probative and important, the offence charged was very serious, and the gravity of the contravention was low in the circumstances. The Court held that any s 138 discretion would inevitably be exercised to admit the evidence, so the trial did not miscarry.

Jurisdiction
Australia
Judgment Date
19 February 2009
Procedural Posture
Criminal Appeal Against Conviction / New South Wales Court of Criminal Appeal From Conviction in the District Court
Outcome
Appeal dismissed
Legal Topics
['miscarriage of Justice' 'illegally or Improperly Obtained Evidence' 'controlled Operations' 'validity of Controlled Operation Authority' 'judicial Discretion to Admit or Exclude Evidence' 'supply of Commercial Quantity of Prohibited Drug']
['criminal Law' 'evidence' 'criminal Procedure'] ['miscarriage of Justice' 'illegally or Improperly Obtained Evidence' 'controlled Operations' 'validity of Controlled Operation Authority' 'judicial Discretion to Admit or Exclude Evidence' 'supply of Commercial Quantity of Prohibited Drug']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / New South Wales Court of Criminal Appeal From Conviction in the District Court

Legal Issues

  1. 1 ['Whether evidence obtained in consequence of a controlled operation should have been admitted notwithstanding the later High Court declaration that the authority approving the operation was invalid.' 'Whether the invalidity of the Dowe Authority meant that the supply of 1 kilogram of cocaine was in contravention of Australian law for the purposes of s 138(1) of the Evidence Act 1995.' 'Whether law enforcement officers acted deliberately, recklessly or in bad faith in conducting the controlled operation under the Law Enforcement (Controlled Operations) Act 1997.' 'Whether the appellant suffered a miscarriage of justice because his trial proceeded on the basis that the controlled operation authority was valid.']

Ratio Decidendi

The appeal failed because, although the Dowe Authority was later declared invalid, the law enforcement officers acted under a bona fide belief that the authority was valid and did not deliberately or recklessly contravene the law. The impugned evidence was highly probative and important, the offence charged was very serious, and the gravity of the contravention was low in the circumstances. The Court held that any s 138 discretion would inevitably be exercised to admit the evidence, so the trial did not miscarry.

Court Disposition

Appeal dismissed

Orders

  • ["The appellant's appeal against conviction is dismissed."]