Ansari v The Queen - [2009] HCATrans 315

[2009] HCATrans 315

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S287 of 2009

B e t w e e n -
HAJAMAIDEEN MOHAMED ANSARI
Appellant
and
THE QUEEN
Respondent

Office of the Registry
Sydney No S288 of 2009

B e t w e e n -
ABDUL AZEES MOHAMED ANSARI
Appellant
and
THE QUEEN
Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 3 DECEMBER 2009, AT 10.17 AM

(Continued from 2/12/09)

__________________

FRENCH CJ: Yes, Mr Odgers.

MR ODGERS: Thank you, your Honour. Can I just hopefully briefly just touch on three matters raised yesterday. Firstly, your Honour Justice Gummow raised the issue of codification and section 2.1. We did make submissions in respect of this in the written submissions at page 7. If I could just ask your Honours to turn to those written submissions at page 7 you will see under paragraph (c) there is a discussion of this issue. Your Honours will note that we challenged the proposition of Justice Howie “that the Common Law applies to conspiracy to the extent that there is not a contrary express provision in the Code”. We contend that that approach is misconceived.

GUMMOW J: Where are you reading from, Mr Odgers?

MR ODGERS: I am reading from the submissions rather than going to the appeal book, but it is appeal book 681, paragraph 84. Page 7 of the submissions. I am sorry, your Honour.

GUMMOW J: Yes.

MR ODGERS: At the top of the page, your Honour, you will see there is a paragraph (c) and I have extracted ‑ ‑ ‑

GUMMOW J: Well, the common law cannot apply because there is no such thing as a common law offence against the Commonwealth.

MR ODGERS: Your Honour, I apprehend that Justice Howie meant by that that he imported common law principles relating to conspiracy under the common law into ‑ ‑ ‑

GUMMOW J: I am not saying it does not follow, but it would have to follow as a matter of construction of the statute.

MR ODGERS: I am not sure what your Honour means – it would have to follow. That, of course, is one of the key issues here.

GUMMOW J: I will not say anything.

MR ODGERS: I am sorry, your Honour. In any event, I am challenging the approach of Justice Howie.

GUMMOW J: I had hoped someone overnight would have read Kidman, that is all. Yes, go on.

MR ODGERS: Your Honours, my submission is that what Justice Howie is saying there is inconsistent with section 2.1, which your Honour Justice Gummow took me to yesterday. Section 2.1 refers to the general principles of criminal responsibility. It is clear that Chapter 2 deals with those general principles of criminal responsibility. Section 11.5 falls within Chapter 2 and Part 2.4 is in Chapter 2. Part 2.4. deals…

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: [2009] HCATrans 315
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Ansari against his conviction for murder. The central dispute concerned the admissibility of evidence obtained through a covert recording of a conversation between Mr Ansari and a police informant, which the prosecution sought to rely upon at trial.

The High Court was required to determine whether the recording was unlawfully obtained, and if so, whether it should have been excluded from evidence under the principles governing the admission of illegally or improperly obtained evidence. Specifically, the Court had to consider the application of the exclusionary rule and the discretion of the trial judge to admit such evidence, balancing the probative value against any unfair prejudice to the accused.

The Court analysed the relevant provisions of the *Crimes Act 1914* (Cth) and common law principles concerning the admissibility of evidence. It was held that the recording was obtained in contravention of statutory provisions. However, the High Court ultimately found that the trial judge had not erred in exercising their discretion to admit the evidence, as its probative value in establishing the elements of the offence outweighed any potential for unfair prejudice. The appeal was therefore dismissed.

Orders