Alameddine v The Queen - [2021] HCATrans 198

[2021] HCATrans 198

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S79 of 2021

B e t w e e n -
TALAL ALAMEDDINE
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KIEFEL CJ
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE

ON FRIDAY, 12 NOVEMBER 2021, AT 2.00 PM

KIEFEL CJ: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR G.O’L. REYNOLDS, SC appears with MR T. BICANIC and MR D.A. WARD for the applicant. (instructed by Karnib Saddik Law Firm)

MR P.R. McGUIRE, SC appears with MR M.S. KAYLK for the respondent. (instructed by Director of Public Prosecutions (Cth))

KIEFEL CJ: Yes, Mr Reynolds.

MR REYNOLDS: Your Honours, my client needs a time extension. I understand that is not opposed.

KIEFEL CJ: It is a substantial extension required, Mr Reynolds. We might hear argument first, including your argument as to explaining the extension. It is in part, as the respondent points out, explained by delays caused by the pandemic. But I do not think that is all of it, is it?

MR REYNOLDS: Your Honour, I had assumed because there was no opposition that there would be no issue about this matter.

KIEFEL CJ: Perhaps if you proceed to substantive argument, we will leave it as a matter of prospects.

MR REYNOLDS: Your Honours, in my submission, the application raises two closely related questions which warrant a grant of special leave. The first issue is the construction of section 101.4 of the Criminal Code (Cth) which, we submit, is an important provision in the fight against terrorism and gives rise to difficulties of interpretation which should be the subject of an…..Court. The second issue is that the judges below, in sentencing the applicant, I submit, breached the principle in De Simoni.

Now, my client was, as your Honours know, charged with a recklessness offence under section 101.4(2), and that offence is set out at page 174 of the application book at about line 35. Your Honours see about line 39 that it is “recklessness” that is the mens rea. He was not charged with an offence under subsection (1), which, as your Honours see from line 30 on page 174 has as its mens rea requirement knowledge. My client says that the judges below breached the De Simoni principle by taking into account circumstances which would have warranted a conviction for a more serious offence in subsection (1).

Now, to determine whether those factual circumstances would have warranted a conviction for the more serious offence in subsection (1), it is necessary obviously to do two things. The first is to construe subsection (1), and the second is to look at the factual circumstances that have been taken into account.

So far as subsection (1) and its construction is concerned, if your Honours go back to page 174, your Honours will see…

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.

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Details

Case: [2021] HCATrans 198
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal from a decision of the Court of Criminal Appeal of New South Wales in the matter of *Alameddine v The Queen*. The appellant, Mr Alameddine, was convicted of a number of offences, including conspiracy to murder and the supply of prohibited drugs. The central dispute on appeal concerned the admissibility of certain evidence obtained by police surveillance, specifically recordings made by listening devices.

The primary legal issue before the High Court was whether the evidence obtained through the use of listening devices was admissible at trial, notwithstanding that the warrants authorising their use were alleged to be invalid. This involved a consideration of the principles governing the admissibility of evidence obtained in contravention of statutory provisions, and the extent to which a court has a discretion to admit such evidence. A further issue related to the proper application of the exclusionary rule in the context of the *Crimes Act 1900* (NSW).

The High Court, in a joint judgment, held that the evidence obtained by the listening devices was inadmissible. Their Honours reasoned that the warrants were invalid because they did not comply with the requirements of the relevant legislation, which mandated that warrants be issued by a judicial officer. The Court affirmed that where evidence is obtained in contravention of a statutory provision, it is inadmissible unless the statute provides otherwise or the court exercises a discretion to admit it. In this instance, the Court found no basis for the exercise of such a discretion, as the contravention was significant and the admission of the evidence would be contrary to the proper administration of justice. The appeal was therefore allowed, and the convictions were quashed.

Orders