Ali v The The King - [2022] NSWCCA 199

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Ali v R [2022] NSWCCA 199
Hearing dates: 29 August 2022
Date of orders: 15 September 2022
Decision date: 15 September 2022
Before: Beech-Jones CJ at CL at [1]
Bellew J at [2]
Fagan J at [77]
Decision:
(1) The time for filing a Notice of Appeal is extended to 23 February 2022.
(2) The appeal is dismissed.

Catchwords:
CRIMINAL LAW – Appeal – Evidence – Expert evidence – Where the applicant was convicted of multiple counts of dealing in identification information with the intention of facilitating the dishonest obtaining of a financial advantage by deception – Where Crown case relied on circumstantial evidence including evidence of telephone intercepts – Where interpreter gave evidence of having translated conversations from Hindi into English – One of the parties to those conversations was described as a “male voice” – Crown case was that this was the voice of the applicant – Where interpreter gave evidence without objection that the “male voice” in each conversation was the same voice – Whether that evidence was admissible – Whether the jury were in the same position as interpreter to reach that conclusion – Whether the Crown was under an obligation to play each of the conversations in Hindi to the jury absent any request by trial counsel for the applicant to do so – Consideration of principles governing the Crown’s decision to call witnesses in a criminal trial – Where the playing of the entirety of the calls would have been a waste of valuable Court time – Where applicant required an extension of time in which to bring the application for leave to appeal against his convictions – No merit in either ground of appeal – Extension of time granted – Appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Supreme Court (Criminal Appeal) Rules 2021 (NSW)

Cases Cited:
Butera v Director of Public Prosecutions(Vic) (1987) 164 CLR 180; [1987] HCA 58
Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29
IW v R [2000] 2019 NSWCCA 311
Nasrallah v R; R v Nasrallah [2015] NSWCCA 188
R v Apostilides (1984) 154 CLR 563; [1984] HCA 38
R v Leung (1999) 47 NSWLR 405; [1999] NSWCCA 287
R v Menzies [1982] 1 NZLR 40
Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50

Category: Principal judgment
Parties: Mohammad Ali – Applicant
Regina – Respondent
Representation:
Counsel:
R Pontello SC and T Bicanic – Applicant
M Kumar and B Allison – Respondent
Solicitors:
Karnib Saddik Law Firm – Applicant
C Hyland, Solicitor for Public Prosecutions (NSW) – Respondent

File Number(s): 2015/59662
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

22 May 2017

Before:

His Honour Judge Toner SC

HEADNOTE

[This headnote is not to be read as part of the judgment]

Following a trial in the District Court,…

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 Ali v The The King

Details

AGLC: Ali v The The King [2022] NSWCCA 199
Case: [2022] NSWCCA 199
Decision Date: 15 September 2022

CaseChat Overview and Summary

In the case of Ali v The King, the applicant, who was convicted on multiple counts of dealing in identification information with the intention of facilitating the dishonest obtaining of a financial advantage by deception, sought leave to appeal against his convictions. The appeal hinged on the admissibility of certain evidence presented by the Crown, which relied on circumstantial evidence, including telephone intercepts. An interpreter testified that they had translated conversations from Hindi into English, with one party described as a “male voice.” The Crown's case posited that this was the voice of the applicant. The interpreter testified that the voice in each conversation was the same, but the applicant argued that the jury could not be expected to reach the same conclusion without hearing the conversations in their original language.

The legal issues before the court were whether the interpreter's evidence was admissible and whether the Crown had an obligation to play each conversation in Hindi to the jury, absent a request by the trial counsel for the applicant. The court considered the principles governing the Crown's decision to call witnesses and the potential waste of court time if the entirety of the calls were played. The applicant also sought an extension of time to bring his application for leave to appeal.

The court determined that there was no merit in either ground of appeal and that the jury could reasonably conclude that the voice in question was that of the applicant based on the interpreter's evidence. Additionally, the court found that the Crown was not under an obligation to play the entirety of the calls in Hindi, as doing so would have been a waste of valuable court time. Given the circumstances, the court granted the applicant an extension of time to bring his application for leave to appeal. Ultimately, the appeal was dismissed, and the applicant's convictions were upheld.

Orders