Ansari v The Queen - [2009] HCATrans 313

[2009] HCATrans 313

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 WEDNESDAY, 2 DECEMBER 2009, AT 3.06 PM

__________________

MR S.J. ODGERS, SC: May it please the Court, I appear for both appellants with my learned friend, MR W.P. LOWE. (instructed by Ford Criminal Lawyers)

MR P.W. NEIL, SC: May it please, your Honours, I appear for the respondent in each appeal. (instructed by Commonwealth Director of Public Prosecutions)

FRENCH CJ: Yes, Mr Odgers.

MR ODGERS: Your Honours, I propose to first address the two grounds of appeal in respect of which special leave has been granted and then, after I have made submissions on those, to turn to the grounds where we seek special leave pursuant to the summons which was filed in the Court. If I can take you to the indictment in respect of the offences, it is found at the appeal book, page 12, volume 1. May I say by way of introduction that much of what I am going to say, of course, has been dealt with to an extent by what has been said in the preceding matter and I certainly do not want to repeat everything that was said. I will try to only refer to matters which have not been perhaps referred to in the way that I would submit matters should be taken into account and, of course, there are differences between the two cases, which I need to highlight.

In respect of the indictment your Honours will see that the two appellants and a third person, a brother, were charged with conspiring with each other and with another man and diverse others to deal with money. So the same as RK and LK conspiracy to deal with money under section 400.3(2). Value of one million or more, again the same, but where there was a risk that the money would become an instrument of crime which, of course, is different from RK and LK where it was an element that it was proceeds of crime. Here the element under 400.3(2) is not that it was proceeds of crime, but rather a risk existed that it would become an instrument of crime and where the appellants and the third person were reckless as to the fact that there was a risk that the money would become an instrument of crime.

So in contrast with LK and RK, it is not reckless as to the money being proceeds of crime, it is reckless as to the risk that the money would become…

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 313
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