Gedeon v R [2009] NSWCCA 278

Gedeon v R [2009] NSWCCA 278

Although the dismissal of the amended motion contained, in form, a refusal of a stay capable of engaging Criminal Appeal Act 1912 (NSW) s 5F, the entire substance of the application was an attempt to appeal a ruling admitting evidence under Evidence Act 1995 (NSW) s 138. No exceptional factor justified granting leave. The applicant showed no sufficiently persuasive arguable error in Tupman DCJ's exercise of discretion, further delay of a long-pending trial was undesirable, and any evidentiary challenge could be pursued if the applicant were convicted.

Jurisdiction
Australia
Judgment Date
20 November 2009
Procedural Posture
Application for Leave to Appeal Under Criminal Appeal Act 1912 (nsw) S 5 F(3) From District Court Orders Dismissing a Motion to Exclude Evidence and for a Permanent Stay / Court of Criminal Appeal Application for Extension of Time and Leave to Appeal
Outcome
Extension of time granted; application for leave to appeal refused.
Legal Topics
['appeal Against Interlocutory Judgment or Order' 'admissibility of Illegally Obtained Evidence' 'evidence Act 1995 (nsw) S 138 Discretion' 'permanent Stay of Criminal Proceedings' 'controlled Operations' 'drug Supply Charges']
['criminal Law' 'evidence' 'criminal Procedure'] ['appeal Against Interlocutory Judgment or Order' 'admissibility of Illegally Obtained Evidence' 'evidence Act 1995 (nsw) S 138 Discretion' 'permanent Stay of Criminal Proceedings' 'controlled Operations' 'drug Supply Charges']

Case Brief

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Procedural Posture

Application for Leave to Appeal Under Criminal Appeal Act 1912 (nsw) S 5 F(3) From District Court Orders Dismissing a Motion to Exclude Evidence and for a Permanent Stay / Court of Criminal Appeal Application for Extension of Time and Leave to Appeal

Legal Issues

  1. 1 ['Whether the Court had statutory authority under Criminal Appeal Act 1912 (NSW) s 5F to entertain an application where the challenged decision was, in practical substance, a ruling admitting evidence but the District Court also dismissed a conditional application for a permanent stay.' 'Whether leave to appeal should be granted from the refusal of a stay where the application depended wholly on exclusion of the Crown evidence under Evidence Act 1995 (NSW) s 138.' "Whether the applicant demonstrated sufficient arguable error in Tupman DCJ's exercise of discretion under Evidence Act 1995 (NSW) s 138 to warrant leave and further delay of the trial."]

Ratio Decidendi

Although the dismissal of the amended motion contained, in form, a refusal of a stay capable of engaging Criminal Appeal Act 1912 (NSW) s 5F, the entire substance of the application was an attempt to appeal a ruling admitting evidence under Evidence Act 1995 (NSW) s 138. No exceptional factor justified granting leave. The applicant showed no sufficiently persuasive arguable error in Tupman DCJ's exercise of discretion, further delay of a long-pending trial was undesirable, and any evidentiary challenge could be pursued if the applicant were convicted.

Court Disposition

Extension of time granted; application for leave to appeal refused.

Orders

  • ['Application for an extension of time in which to apply for leave to appeal be granted and time be extended up to and including 12 October 2009.' 'Application for leave to appeal from orders of Tupman DCJ made on 14 September 2009 refused.']