Bakir v The Queen; Hill v The Queen - [2012] HCATrans 136

[2012] HCATrans 136

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B61 of 2011

B e t w e e n -
YASSAR BAKIR
Applicant
and
THE QUEEN
Respondent

Office of the Registry
Brisbane No B62 of 2011

B e t w e e n -
STEVEN MILTON HILL
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal

HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 7 JUNE 2012, AT 3.25 PM

__________________

MR A.J KIMMINS: If the Court pleases, I appear for Mr Bakir. (instructed by Peter Shields Lawyers)

MR M.J. BYRNE, QC: If the Court pleases, I appear for the applicant, Hill, with MS P. MORREAU. (instructed by Peter Shields Lawyers)

MS W.J. ABRAHAM, QC: May it please the Court, I appear with my learned friend, Mr L.K. CROWLEY, for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

HEYDON J: Yes.

MR KIMMINS: Yes. The prosecution case against Bakir and Hill depended almost exclusively on the evidence of an indemnified accomplice, one Radcliff. Certainly without Radcliff the prosecution did not have a case against either of the applicants. There were a number of other parties involved apart from Bakir and Hill and Radcliff.

Possibly the best starting point would be at record 189, paragraph [87] in the decision of Justice Atkinson, where her Honour identifies in paragraphs [87] and [88] incidents which allegedly occurred prior to the commencement dates for both of the offences that the applicant was convicted of. There is reference specifically to an associate on the fourth line in paragraph [87], one Glen Cook, who the indemnified accomplice, Radcliff, had been involved in a substantial way in drug manufacturing and drug trafficking prior to any alleged involvement of the applicant. Paragraph [88] notes that:

Cook was arrested and taken into custody –

On the second last line of paragraph [88], reference to, the then, co‑accused, Gray, who was Cook’s girlfriend. Paragraph [89] is very relevant. It identifies effectively the sum total of the evidence of Bakir’s implication in, at least, the offence of importation. Effectively, the basis upon which the case proceeded against Bakir was that he uttered the words, which are identified in the fifth line down:

You know about this Fanta and how to get it into Australia.

There was then a protest and then he was told that he had two weeks to organise it. Paragraph [90] identifies that:

After this meeting Radcliff immediately contacted Gray –

who was then to take up with Cook, who was in prison. Paragraph [92], the case was that:

Gray agreed to arrange the importation -

Five lines down, in paragraph [92] we see the first reference of a person called Broad, who was a further accomplice. Radcliff brought Broad into the conspiracy. At paragraph [93] there was further reference to Radcliff dealing with the person, Gray, and also with Broad again, and then…

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: [2012] HCATrans 136
Decision Date

CaseChat Overview and Summary

These appeals concerned the admissibility of evidence obtained by police during a search of the applicants' homes. The applicants, Bakir and Hill, were charged with various offences relating to the possession of prohibited firearms and ammunition. The central dispute revolved around whether the search warrants, which were issued based on information obtained from a confidential informant, were validly executed. The applicants argued that the evidence seized during the searches should have been excluded from trial on the grounds that the warrants were defective and the searches unlawful. The matter proceeded to the High Court of Australia.

The High Court was required to determine whether the search warrants were validly issued under the relevant legislation, specifically concerning the sufficiency of the information provided to the issuing officer to establish reasonable grounds for suspecting the existence of the prohibited items. A further issue was whether, even if the warrants were defective, the evidence obtained should have been admitted under the proviso to section 8 of the *Crimes Act 1914* (Cth) or under the common law.

The Court held that the information before the issuing officer was insufficient to establish reasonable grounds for suspecting the existence of prohibited firearms and ammunition at the applicants' residences. The informant's information was not sufficiently corroborated, and the issuing officer had not adequately considered the reliability of the informant or the basis of their knowledge. Consequently, the search warrants were invalidly issued, and the searches were unlawful. The Court then considered the admissibility of the evidence. Applying the principles established in *Bally v The Queen*, the Court found that the admission of the unlawfully obtained evidence would have been unfair to the applicants and would have had a prejudicial effect that outweighed its probative value. Therefore, the evidence should have been excluded.

The appeals were allowed, and the convictions were quashed. The High Court ordered that the matters be remitted to the Supreme Court of New South Wales for a new trial.

Orders