Gedeon v Commissioner of the New South Wales Crime Commission

Criminal law – Evidence - Unlawfully obtained - Part IAB of Crimes Act 1914 (Cth) ("Crimes Act") provided that person not liable for offences under Commonwealth, State or Territory law committed for purpose of controlled operation - Section 15M of Crimes Act provided for issue of certificate authorising controlled operation if authorising officer reasonably satisfied that, inter alia, unlawful activity in course of controlled operation would not seriously endanger health or safety of person - Section 16 of Law Enforcement (Controlled Operations) Act 1997 (NSW) ("LECO Act") provided that activity for purpose of controlled operation not unlawful despite other Act or law - Section 3(1) of LECO Act defined "controlled activity" as activity that would be unlawful but for operation of s 16 - Section 7 of LECO Act provided that authority to conduct controlled operation must not be granted if, inter alia, participant in proposed operation would engage in conduct likely to seriously endanger health or safety of person - Section 138 of Evidence Act 1995 (NSW) conferred upon trial judges discretion to exclude evidence obtained illegally.

Criminal law – Evidence - Unlawfully obtained - Commissioner issued authorities ("Authorities") under LECO Act authorising controlled operations - No authorities issued under Pt IAB of Crimes Act - Authorities authorised informer to sell cocaine to applicants - Cocaine not recovered by law enforcement officers - Applicants charged with taking part in supply of prohibited drug contrary to Drug Misuse and Trafficking Act 1985 (NSW).

Criminal law – Evidence - Unlawfully obtained - Whether Commissioner had power to issue Authorities where sale of cocaine without recovery strategy was decided at trial or upon judicial review to seriously endanger health or safety of person - Whether reference to "any other person" in s 7 of LECO Act confined to person in physical vicinity of authorised conduct or extended to person subject to foreseen and expected consequence of proposed controlled operation - Whether "controlled activity" within meaning of LECO Act extended to conduct unlawful by reason of contravention of Commonwealth law.

Judgments and orders – Judicial review - Declarations - Whether jurisdiction to entertain application to declare Authorities invalid - Whether discretion to do so should be exercised - Matters bearing on appropriateness of making declaration touching conduct of criminal proceedings.

Words and phrases – "controlled operation", "declarations", "seriously endanger health or safety".

Law Enforcement (Controlled Operations) Act 1997 (NSW). Crimes Act 1914 (Cth).