Dastagir v The Queen - [2014] HCATrans 130

[2014] HCATrans 130

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A32 of 2013

B e t w e e n -
HAMEED ULLAH DASTAGIR
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 20 JUNE 2014, AT 10.59 AM

MS M.E. SHAW, QC: May it please the Court, I appear with my learned friend, MR B.J. DOYLE, for the applicant. (instructed by Patsouris & Associates)

MR A.P. KIMBER, SC: May it please the Court, I appear with my learned friend, MS K. ORR, for the respondent. (instructed by Director of Public Prosecutions (SA))

FRENCH CJ: Yes, thank you.

MS SHAW: If the Court pleases, this is a circumstantial case of identity in which the primary issue at trial was whether the person of interest shown in stills extracted from service station footage was the applicant.

FRENCH CJ: Now, you have two complaints, as I understand it. The first relates to the judge’s direction to the jury about the use they could make of the CCTV footage taken at the service station of the person getting out of the passenger seat of the vehicle. We have just lost the link. Sorry, Ms Shaw, we seem to have had an interruption with the link. Can you hear me now?

MS SHAW: I can, thank you, your Honour.

FRENCH CJ: Please proceed.

MS SHAW: If the Court pleases, there are two points. The first point relates to the trial judge having left to the jury, as an independent route to guilt, a comparison of the stills and the photographs of the applicant taken three months after the event when there was no evidence of his appearance as at the time of the offending and, secondly, looking at the appearance of the applicant in the dock, as the learned trial judge acknowledged his appearance had changed, and the applicant complains that leading to the jury an independent route to guilt based on a comparison of stills which were acknowledged to have a considerable number of defects as in the quality of the footage as well as the distortions that arise. The applicant says that that gives rise to a risk of a miscarriage of justice.

The second point that the applicant raises is that here the Court of Appeal held that the black windcheater with a logo that said the word “Notorious”, found in the garage of the applicant, the Court of Appeal held that the learned trial judge did not err in admitting that windcheater was a ‑ ‑ ‑

FRENCH CJ: I am sorry, can I just make sure I have my understanding of the facts correct. I think the person seen getting out of the vehicle at the service station on the CCTV footage was wearing a black windcheater with the word “Notorious” on it ‑ ‑…

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 Dastagir v The Queen

Details

AGLC: Dastagir v The Queen [2014] HCATrans 130
Case: [2014] HCATrans 130
Decision Date

CaseChat Overview and Summary

The applicant, Mr Dastagir, was convicted of a number of offences, including aggravated robbery and assault occasioning actual bodily harm. He appealed his conviction to the Court of Criminal Appeal of New South Wales, which dismissed his appeal. Mr Dastagir then sought special leave to appeal to the High Court of Australia.

The High Court was required to determine whether the trial judge had erred in admitting evidence of a confession made by Mr Dastagir to police. Specifically, the court considered whether the confession was unfairly prejudicial to Mr Dastagir, and whether the trial judge had properly exercised their discretion under s 137 of the *Evidence Act 1995* (NSW) to exclude evidence that would be unfairly prejudicial to a defendant.

French CJ and Gageler J, in a joint judgment, held that the trial judge had not erred in admitting the confession. Their Honours reasoned that while the confession was undoubtedly prejudicial, it was also highly probative of Mr Dastagir's guilt. They found that the trial judge had properly balanced the probative value of the evidence against its prejudicial effect, and that there was no basis to interfere with the exercise of the judge's discretion. The High Court therefore refused special leave to appeal.

Orders