Aweys v The Queen; El Sayed v The Queen - [2014] HCATrans 87

[2014] HCATrans 087

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M133 of 2013
No M134 of 2013

B e t w e e n -
SANEY EDOW AWEYS
Applicant
and
THE QUEEN
Respondent

Office of the Registry
Melbourne No M136 of 2013

B e t w e e n -
NAYEF EL SAYED
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 APRIL 2014, AT 11.33 AM

____________________

MR D.J. NEAL, SC: I appear with MR M.D. STANTON for the applicant, Aweys, if your Honours please. (instructed by Robert Stary Lawyers)

MR J.M. SELIMI: May it please the Court, I appear for Mr El Sayed. (instructed by Pasha Legal)

MR D.D. GURVICH: May it please the Court, I appear on behalf of the respondent in each matter. (instructed by Director of Public Prosecutions (Cth))

FRENCH CJ: Yes, Mr Neal.

MR NEAL: Thank you, your Honours. Your Honours, our oral submissions will focus primarily on grounds 1 and 2 of the application. Your Honours, the primary question in this appeal is whether the offence of conspiring to do an act of preparation for a terrorist act is committed where the defendant carries out an act of preparation said to be the asking of a ruling whether the planned attack is lawful, wanting that ruling to be negative, that is, that it is not lawful, but appreciating a risk that the ruling may be that it is lawful. We say that this has imported, impermissibly imported a concept of recklessness into an offence which is based in the law of conspiracy, that that is contrary to the ruling in LK and other decisions.

BELL J: But does that not involve the eliding of the offence with which your client was charged and the separate offence of a conspiracy to commit a terrorist act? The conspiracy here was to do an act preparatory to the commission of a terrorist act. Obtaining a fatwa, on the view taken by the Court of Appeal, was a preparatory act. The court found that the trial judge repeatedly and correctly directed the jury with respect to the necessary intention. It did not seem to me that there was any issue in the Court of Appeal as to the application of the principles explained by this Court in LK concerning the mental element of the offence of conspiracy.

MR NEAL: Your Honour, the subject matter of the conspiracy was the section 101.6 offence of the Criminal Code, and perhaps can I direct you to that? That is in the bundle of our authorities. It reads:

A person commits an offence if the person does any act in preparation for, or planning, a terrorist act.

Then there are other definitions that depend on that which go into the complications of a terrorist act and the like. We say, consistently…

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: [2014] HCATrans 87
Decision Date

CaseChat Overview and Summary

These appeals concerned the admissibility of evidence obtained by police during a search of the appellants' premises. The appellants, Aweys and El Sayed, were convicted of drug trafficking offences. They sought to exclude evidence seized during a search of their shared residence, arguing that the search warrant was invalid. The High Court of Australia was required to determine whether the warrant was lawfully issued and, consequently, whether the evidence obtained pursuant to it was admissible.

The central legal issue was whether the information provided to the issuing officer in support of the search warrant was sufficient to establish reasonable suspicion that the appellants were involved in drug trafficking. Specifically, the Court considered whether the informant's information was sufficiently particularised and corroborated to justify the belief that the premises were being used for the commission of a drug trafficking offence, as required by the relevant legislation.

The High Court held that the information before the issuing officer did not establish a sufficient basis for reasonable suspicion. The informant's information was vague and lacked the necessary particularity to connect the appellants directly to drug trafficking activities at the premises. Furthermore, there was insufficient independent corroboration of the informant's claims. The Court reaffirmed the principle that a search warrant must be based on reasonable suspicion, which requires more than mere conjecture or a general belief. The lack of specificity and corroboration meant the issuing officer could not have formed a reasonable suspicion, rendering the warrant invalid and the subsequent search unlawful.

Consequently, the evidence obtained from the search was inadmissible. The High Court allowed the appeals, quashed the convictions, and ordered that the appellants be discharged.

Orders