Attorney General v Kaddour & Turkmani - [2001] NSWCCA 456

CITATION: Attorney General v Kaddour & Turkmani [2001] NSWCCA 456

FILE NUMBER(S): CCA 60624/01

HEARING DATE(S): 13 November 2001

JUDGMENT DATE:
16 November 2001

PARTIES :

Atorney General
Kaldid Kaddour and Bassam Turkmani

JUDGMENT OF: Spigelman CJ at 1; Sully J at 2; Adams J at 24

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 0011/0634; 0011/0645
0011/0645

LOWER COURT JUDICIAL
OFFICER : Woods DCJ

COUNSEL : R. D. Cogswell SC/P.F. Singleton - Attorney General
P.I. Lakatos as amicus curiae - Contradictor

SOLICITORS: Crown Solicitor's Office
-

LEGISLATION CITED: Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)

CASES CITED:
Arthur Stanley Smith (1996) 86 A Crim R 308

DECISION: Appeal allowed; Interlocutory judgment and orders rejecting claim of public interest immunity vacated

60624/01
SPIGELMAN CJ
SULLY J
ADAMS J

Friday 16 November 2001

ATTORNEY GENERAL v Kaldid KADDOUR & Bassam TURKMANI

JUDGMENT

1 SPIGELMAN CJ: I agree with Sully J.

2 SULLY J: This is a Crown appeal brought by the Attorney General as of right pursuant to section 5F of the Criminal Appeal Act 1912 (NSW). The appeal challenges an interlocutory judgment given by his Honour Judge Woods QC on 10 September last. Mr. Kaddour and Mr. Turkmani, the respondents to the appeal, are currently standing trial before his Honour, sitting without a jury, upon a charge of having solicited the murder of one Albert Brikha. The interlocutory judgment against which the appeal has been brought by the Attorney General concerns some questions of public interest immunity privilege.

3 The relevant facts can be extracted, sufficiently for present purposes and as follows, from the written submissions of learned Counsel for the appellant:

“Both respondents are charged with soliciting the murder of Albert Brikha. The case alleged by the Crown may be summarised as follows.

On 4 July 1997 Brikha, a tow-truck driver, and John Assadourian, a tow-truck driver from a rival business, attended the scene of a motor vehicle accident . The two men argued and Assadourian invited Brikha to go to nearby bushes to settle their differences; Brikha accepted. Out of sight of witnesses at the scene of the accident, three shots were fired. Assadourian emerged from the bushes and departed from the scene. Brikha was found wounded by three bullets. Soon afterwards, Assadourian was charged with attempting to murder Brikha. Brikha was the key Crown witness. On 20 February 1998, whilst the committal proceedings against Assadourian were pending, Brikha was shot dead outside his house.

A police investigation ensued and inter alia focussed on people in the tow truck industry. An initial target was, of course, Assadourian. George Agoulian, an associate of Assadourian, was also investigated. One method used during the investigation was to have police informers engage Assadourian and Agoulian in conversation in circumstances where the conversation might be recorded and might disclose relevant evidence. Neither of the two respondents were targeted in this way (nor was anyone else targeted in this way, although others’ conversation was monitored collaterally).

The Crown case…

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: [2001] NSWCCA 456
Decision Date: 16 November 2001

CaseChat Overview and Summary

The case of Attorney General v Kaddour and Turkmani concerns an appeal by the Attorney General against an interlocutory judgment made by Judge Woods in the District Court. Kaldid Kaddour and Bassam Turkmani are on trial for the alleged solicitation of the murder of Albert Brikha. The appeal challenges the trial judge's decision regarding claims of public interest immunity concerning the identity of police informers. The appeal was heard by Spigelman CJ, Sully J, and Adams J. The central legal issue in this case was whether the trial judge correctly applied the public interest immunity provisions under section 130 of the Evidence Act 1995 (NSW) when rejecting the respondents' claims.

The Court of Criminal Appeal held that the trial judge did not properly apply the statutory test for public interest immunity as outlined in section 130(1) of the Evidence Act. Instead of balancing the public interest in preserving secrecy or confidentiality against the public interest in admitting the information into evidence, the trial judge focused on whether the respondents had a legitimate forensic purpose for seeking to disclose the information. The Court found this approach to be misconceived and held that the trial judge should have made a precise and careful balancing of the prescribed statutory interests. The Court found that the trial judge's reasoning did not demonstrate such a balance, and thus the appeal was allowed. The interlocutory judgment and orders rejecting the claim of public interest immunity were vacated.

The Court ordered that the three copies of the Confidential Statements referred to in the judgment be placed in a sealed envelope, marked "Confidential: not to be opened without the prior order of a Judge of this Court," and kept with the Court file for any necessary future reference.

Orders