Ahmad v The Queen - [2004] HCATrans 258

[2004] HCATrans 258

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P42 of 2002

B e t w e e n -
SYED REDZA FAROUK AHMAD
Applicant
and
THE QUEEN
Respondent
Application to set aside a certificate of deemed abandonment

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON THURSDAY, 5 AUGUST 2004, AT 4.33 PM

MR A.E. MONISSE: May it please the Court, I appear for the applicant. (instructed by the applicant)

MR P.J. URQUHART: May it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (Western Australia))

HIS HONOUR: Yes, Mr Monisse.

MR MONISSE: Thank you, your Honour. I appear on behalf of the applicant in his application today. This application is for reinstatement of his 2002 application for special leave and related orders. Your Honour, I refer you to the outline of submissions.

HIS HONOUR: Yes, I have read those.

MR MONISSE: I would simply address you on those, your Honour. In relation to the decision of Gallo v Dawson, the applicant submits that the principles contained therein do not have as much application as those that follow in paragraphs 4 to 10 of my submission.

HIS HONOUR: Yes. Why do you say that? They both deal with litigants who have lost their statutory rights. Why should not the principles be applied? It does not mean that they would necessarily have the same weight. They may or may not, but why are they not equally applicable to this situation?

MR MONISSE: Well, for a number of reasons, your Honour. Firstly, you have those other authorities that I referred to you which appear to arguably be more on point. Secondly, the applicant has gone further down the trail in his appeal, namely, he has filed his appeal, and that is contrasted with an application for leave to appeal out of time, for instance. Thirdly, if the principles or application for special leave were to have effect at today’s hearing of the application for reinstatement, then your Honour may as well call this a hearing for special leave, but more importantly ‑ ‑ ‑

HIS HONOUR: It is only a factor, but one thing you have to face up to is that your client has now been deported to Malaysia. The only order that he could obtain if he succeeded in getting special leave and his appeal was allowed would be an order for a new trial, would it not? There would be some difficulty about that.

MR MONISSE: That may be a potential issue, your Honour, but I would respectfully submit that that hurdle can be crossed if and when it arises. The bottom line, as far as he is concerned, and hence the reason for lodging the appeal in the first place to this honourable Court, is to clear his name. The great irony is he has been deported on a character…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ahmad v The Queen

Details

AGLC: Ahmad v The Queen [2004] HCATrans 258
Case: [2004] HCATrans 258
Decision Date

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal to the High Court of Australia by Mr Ahmad against a decision of the Supreme Court of Queensland. The dispute arose from Mr Ahmad's conviction for a criminal offence.

The primary legal issue before the High Court was whether the Supreme Court of Queensland had erred in dismissing Mr Ahmad's appeal against his conviction. Specifically, the High Court was required to consider whether there was a miscarriage of justice in the proceedings below.

McHugh J, in chambers, considered the grounds of appeal advanced by Mr Ahmad. His Honour reviewed the relevant evidence and legal arguments presented. Ultimately, McHugh J found no arguable error of law or fact that would warrant the granting of special leave to appeal.

Special leave to appeal was refused.

Orders