Chaarani v The Queen; Moukhaiber v The Queen - [2020] HCATrans 161

[2020] HCATrans 161

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M43 of 2020

B e t w e e n -
ABDULLAH CHAARANI
Applicant
and
THE QUEEN
Respondent

Office of the Registry
Melbourne No M44 of 2020

B e t w e e n -
HATIM MOUKHAIBER
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal

NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO CONNECTION TO BRISBANE

ON TUESDAY, 13 OCTOBER 2020, AT 11.31 AM

____________________

MR P.F. TEHAN, QC: If the Court pleases, I appear with my learned friend, MR L.Z. RICHTER, for the applicant Chaarani. (instructed by James Dowsley & Associates)

MS F.R. GERRY, QC: If the Court pleases, I appear with my learned friend, MR J.L. ANDERSON, on behalf of Mr Moukhaiber. (instructed by Stary Norton Halphen)

MR N.T. ROBINSON, QC: If the Court please, I appear with my learned friend, MR C.J. TRAN, for the Crown. (instructed by Commonwealth Director of Public Prosecutions)

NETTLE J: Yes, Mr Tehan.

MR TEHAN: Your Honours, in our submission, this case is the right case to decide an issue of significance to the administration of criminal justice in Australia. That issue is, can a State offence be an alternative offence to a federal offence? In our submission, the answer to that issue is affirmative.

This case is the right case to decide the issue because the only triable issue in Chaarani’s case was whether he was guilty of that element of a terrorist act which provides that protest, advocacy or dissent does not include an act which is intended to cause physical harm to a person or to create a serious risk to the health or safety of the public or a section of the public.

Mr Chaarani, in the conduct of his trial from start to finish conceded that he was guilty of arson. The Court of Appeal found, at application book page 346, paragraph 66 of the Court’s judgment, that section 79(1) of the Judiciary Act could operate to pick up section 239 of the Criminal Procedure Act and apply it as federal law.

EDELMAN J: Mr Tehan, do you accept that section 79 would not operate to pick up a provision such as section 239 if that provision, i.e. section 239, were inconsistent, in the section 109 sense of the Constitution, with another federal provision?

MR TEHAN: Yes, we do, your Honour.

EDELMAN J: Why then is section 239 consistent with the regime throughout the Criminal Code of providing on its own terms for alternative offences? So, for example, in Chapter 5 itself there is an alternative verdict provision in section 93.5, in section 102.1 there is an alternative verdict section, in section 101 itself, in 101.2(5), there is an alternative verdict provision. Why would that not be treated as the Criminal Code covering the field for alternative verdicts?

MR TEHAN: The issue…

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: [2020] HCATrans 161
Decision Date

CaseChat Overview and Summary

Chaarani and Moukhaiber appealed their convictions for conspiracy to import a commercial quantity of a border-controlled drug, namely cocaine, contrary to s 307.1(1) of the *Criminal Code* (Cth). The appeals concerned the admissibility of evidence obtained from mobile phones seized from the appellants, and the proper application of the principles governing the admission of evidence of prior or system conduct. The appeals were heard together by Nettle and Edelman JJ of the High Court of Australia.

The central legal issues before the High Court were whether the evidence obtained from the appellants' mobile phones was admissible, and whether the trial judge had erred in admitting evidence of prior or system conduct. Specifically, the court considered whether the admission of this evidence was unfairly prejudicial to the appellants, outweighing its probative value, and whether the jury directions regarding this evidence were adequate.

The High Court held that the evidence obtained from the mobile phones was admissible. Their Honours reasoned that the evidence was relevant to establishing the appellants' knowledge and intention in relation to the conspiracy. Regarding the evidence of prior or system conduct, the court affirmed that such evidence is admissible if it has a sufficient degree of probative force to make it unfair to exclude it, and that its prejudicial effect does not outweigh its probative value. The jury directions were found to be sufficient to guide the jury in considering this evidence appropriately.

The appeals were dismissed.

Orders