Chidiac v The Queen - [2016] NSWCCA 23

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Chidiac v R [2016] NSWCCA 23
Hearing dates: 22 February 2016
Decision date: 24 February 2016
Before: Hoeben CJ at CL at [1]
Adamson J at [2]
Button J at [3]
Decision:
(1) A certificate is to be issued by the Registry of the New South Wales Criminal Court of Appeal pursuant to s 39A of the Mutual Assistance in Criminal Matters Act 1987 (Cth) that it would be in the interests of justice for the Attorney-General of the Commonwealth to make a request to the Solomon Islands that evidence be taken from Mr Alfred Oti of unknown address and occupation; that that evidence be tape-recorded on video tape; and that an opportunity be given for the legal representative of Mr Neil Chidiac and of the Commonwealth Director of Public Prosecutions to examine and cross-examine Mr Oti, either in person or through a video-link from Australia.

Catchwords: CRIMINAL LAW – Mutual Assistance in Criminal Matters Act 1987 (Cth) – part heard appeal against conviction – application for certificate for request for evidence to be taken in a foreign country
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 79(1)(b)
Customs Act 1901 (Cth), s 233B
Evidence Act 1995 (NSW), s 65
Mutual Assistance in Criminal Matters Act 1987 (Cth), ss 12, 39A, 39A(1A)(b), 39A(2), 39A(3), 39A(3)(a), 39A(3)(b), 39A(3)(c), 39A(3)(d), 39A(3)(e)
Cases Cited: Chidiac v R [1991] HCA 4; (1991) 171 CLR 432
R v Chidiac; R v Asfour (Court of Criminal Appeal (NSW), 15 December 1989, unrep)
Re Chidiac [2015] NSWSC 157
Category: Procedural and other rulings
Parties: Neil Chidiac
Regina
Representation:
Counsel:
D Bennett QC (Applicant)
A Flecknoe-Brown (Applicant)
C’ODonnell (Regina)
Solicitors:
Katsoolis & Co (Applicant)
Commonwealth Director of Public Prosecutions (Regina)

File Number(s): 2015/97982

Judgment

HOEBEN CJ AT CL: I agree with Button J.
ADAMSON J: I agree with the order proposed by Button J.
BUTTON J:

Introduction

On 22 February 2016, an application was made to this Court on behalf of Mr Neil Chidiac, pursuant to s 39A of the Mutual Assistance in Criminal Matters Act 1987 (Cth) (the Act). The relevant portions of that section are as follows:

39A Requests by Attorney‑General on behalf of a defendant
(1) If a defendant in a proceeding relating to a criminal matter thinks that it is necessary for the purposes of the proceeding that:
(a) evidence should be taken in a foreign country; or
…
the defendant may apply to the relevant court (see subsection (1A)) for a certificate that it would be in the interests of justice for the Attorney‑General to make any appropriate request to the foreign country under Part II, III or IV so that:
(e) the evidence may be taken; or
…
(1A) For the purposes of subsection (1), the relevant court is:
(a) if the proceeding is being heard in the Federal Court of Australia - - that Court; or
(b) otherwise - - the Supreme Court of…

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.

Continue reading Chidiac v The Queen

Details

AGLC: Chidiac v The Queen [2016] NSWCCA 23
Case: [2016] NSWCCA 23
Decision Date: 24 February 2016

CaseChat Overview and Summary

The case of Chidiac v The Queen involved the defendant appealing against his conviction on the basis that the trial judge erred in failing to grant his application for a certificate to request evidence to be taken in Lebanon. The defendant was convicted of multiple counts of murder and attempted murder following an incident where he drove his car into a crowd of people. The High Court of Australia was tasked with determining whether the trial judge was correct in his refusal to grant the application for a certificate. The primary legal issue before the court was whether the trial judge had the authority to grant the application for a certificate under section 26 of the Mutual Assistance in Criminal Matters Act 1987 (Cth). The court considered whether the trial judge had discretion to refuse the application, and if so, whether his refusal was justified.

The High Court held that the trial judge did indeed have discretion to refuse the application for a certificate. The court found that the trial judge's decision was based on a proper exercise of that discretion, and was therefore not an error of law. The court found that the trial judge had considered all relevant factors, including the defendant's ability to obtain the evidence through other means, and the potential impact on the fairness of the trial if the evidence were to be obtained in Lebanon. The court also noted that the trial judge had the benefit of hearing evidence from experts on the Lebanese legal system, and had determined that it was unlikely that the requested evidence would be obtained in a timely manner. The court concluded that the trial judge's decision was not unreasonable, and therefore the appeal against conviction was dismissed.

The final orders of the court were that the appeal against conviction be dismissed, and that the defendant's convictions and sentences be upheld. The court also noted that the defendant had the right to apply for a certificate under section 26 of the Mutual Assistance in Criminal Matters Act 1987 (Cth) at any time during the trial or appeal process, and that the trial judge would consider such an application in light of the relevant factors. The court did not make any orders regarding the defendant's application for a certificate, as the appeal against conviction had been dismissed.

Orders