DPP v Harika - [2007] VSC 435

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1544 of 2006

THE QUEEN

ABDUL NACER BENBRIKA, AIMEN JOUD, SHANE KENT, FADL SAYADI, HANY TAHA, EZZIT RAAD, ABDULLAH MERHI, BASSAM RAAD, AHMED RAAD, SHOUE HAMMOUD, MAJED RAAD and AMER HADDARA

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 November 2007
DATE OF RULING:	7 November 2007
CASE MAY BE CITED AS:	R v Benbrika and ors (Ruling No. 9)
MEDIUM NEUTRAL CITATION:	[2007] VSC 435

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CRIMINAL LAW – Evidence – Conversations between accused and family – Rumours of undesirable activity – Subsequent conversation with others in which rumours not denied – Hearsay – No prejudicial effect.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Maidment SC with Mr N Robinson SC, Mr D Lane and Ms L Taylor	Commonwealth DPP
For the Accused Ezzit Raad	Mr G Barns	Slades & Parsons
For the Accused Taha	Mr J Montgomery SC	Robert Stary & Associates
For the Accused Benbrika	Mr R Van de Wiel QC with Mr A Halphen	Doogue & O”Brien
For the Accused Joud	Mr T E Wraight	Lethbridges
For the Accused Haddara	Mr A D Trood	Robert Stary & Associates
For the Accused Merhi	Mr M Taft SC	Robert Stary & Associates
For the Accused Ahmed Raad	Mr J McMahon	Robert Stary & Associates
For the Accused Sayadi	Ms N Karapanagiotidis	Robert Stary & Associates
For the Accused Majed Raad	Mr G P Mullaly	Slades & Parsons
For the Accused Bassam Raad	Mr B Lindner	Robert Stary & Associates
For the Accused Kent	Mr J O’Sullivan	Robert Stary & Associates
For the Accused Hammoud	Mr D Brustman	Victoria Legal Aid

HIS HONOUR:

This application concerns the admissibility of conversations between one of the accused, Shoue Hammoud, and his father, and between the same accused and a relative, Ahmed Abboud. The conversations each deal with rumours that Shoue Hammoud was involved in undesirable activity of which his father and Abboud did not approve.

The admissibility of this evidence is opposed both by counsel for Hammoud and counsel for Hany Taha, a co‑accused who is also involved. However, the argument for exclusion was argued, in accordance with the practice followed by the Court in this trial, only by one member of counsel, Mr Brustman.

In the first conversation (line 373 of the Crown summary) complained of, Hammoud's father asked him if he was involved with the police. Hammoud said, "No." His father then told Hammoud that someone had told him that he, Hammoud, Hany Taha and Fadl Sayadi had been "dobbed in", that they were going to make a bomb and that the police were after them. He gave further details of this information and then asked Hammoud if he was in trouble. Hammoud denied that the information was true and denied that he was in trouble. The second conversation (line 376 of the Crown summary) was in a similar vein.

A similar conversation between Ahmed Abboud and Hammoud took place…

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 DPP v Harika

Details

AGLC: DPP v Harika [2007] VSC 435
Case: [2007] VSC 435
Decision Date: 7 November 2007

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Harika, the court was asked to determine the admissibility of hearsay evidence in relation to conversations the accused had with family members and others. The accused was charged with engaging in criminal activities and was alleged to have discussed these matters with family and others. The case was heard in the Supreme Court of Australia, which was asked to decide whether the hearsay evidence was admissible and whether it was prejudicial to the accused.

The primary legal issue was whether the hearsay evidence was admissible and whether its admission was prejudicial to the accused. The court was required to consider the common law exceptions to the hearsay rule and whether the evidence was relevant to the charge against the accused. The court also had to consider whether the hearsay evidence had a prejudicial effect on the accused's right to a fair trial.

The court held that the hearsay evidence was admissible and that its admission was not prejudicial to the accused. The court found that the hearsay evidence was relevant to the charge against the accused and that it fell within the common law exceptions to the hearsay rule. The court also found that the hearsay evidence did not have a prejudicial effect on the accused's right to a fair trial. The court held that the hearsay evidence was admissible and that it was not prejudicial to the accused.

The court found in favour of the prosecution and held that the hearsay evidence was admissible and that it was not prejudicial to the accused. The court did not provide any further orders beyond this finding.

Orders