Elomar v The Queen

[2018] HCATrans 219

[2018] HCATrans 219

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S128 of 2018

B e t w e e n -

MOHAMED ALI ELOMAR

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL CJ
BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 OCTOBER 2018, AT 10.13 AM

Copyright in the High Court of Australia

MR D.G. DALTON, SC:   If it please the Court, I appear with my learned friend, MR E.Y. OZEN, SC, for the applicant.  (instructed by Nyman Gibson Miralis)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear with my learned friend, MR Y. SHARIFF, for the respondent.  (instructed by Director of Public Prosecutions (Cth))

KIEFEL CJ:   Mr Dalton, I see the application is something like three years out of time.

MR DALTON:   It is, your Honour. 

KIEFEL CJ:   And, that the respondent opposes an extension but on the basis of the merits of the case.

MR DALTON:   Yes, your Honour.

KIEFEL CJ:   So, we will hear from you.

MR DALTON:   Thank you very much, your Honour.  Your Honours, this application is brought with particular focus upon the definition of an admission under the Evidence Act 1995 (NSW) and the change that that has caused upon the principles regarding the co‑conspirators’ rule, as it was so called, that are dealt with in Ahern v The Queen (1988).

Your Honours, it is our submission that the definition therein has now caught a type of evidence that was previously used for a non‑hearsay basis, pursuant to those co‑conspirator principles under Ahern and other cases, has caught them in this way.  And that is, your Honours, the evidence that is sought to be led in the non‑hearsay manner, being circumstantial evidence as to the existence and scope of the alleged conspiracy and the subject matter in the various incidents that were challenged, were made by a person who actually became a party to the proceedings.  And, it was adverse to that person’s interests in the outcome of the proceedings and, indeed, obviously, adverse to the interests of the outcome – the proceedings of the other co‑accused.

BELL J:   Mr Dalton, as I understand it, it is accepted that 87(1)(c) is a statement of the co‑conspirators’ rule with respect to the admission of admissions where a foundation has been laid for the same, but it is by no means clear that there was any reliance on the co‑conspirators’ rule in support of proof of your client’s participation in the conspiracy.

MR DALTON:   Yes, your Honour.  In fact, the Crown eschewed that.

BELL J:   Yes.  So, the acts and declarations of persons, other than your client, were adduced in the trial of your client to establish, as a fact, the existence of the conspiracy.

MR DALTON:   Yes, your Honour.  Under the Act, section 60 is, in a sense, the operative section in regards to evidence that is sought to be used for a non‑hearsay purpose.  Therefore – and via that section then being crossed over into being able to be used for a hearsay purpose, except for, pursuant to section 60(3), in relation to admissions.  More importantly, your Honour, section ‑ ‑ ‑ 

BELL J:   There is no, as I understand it, suggestion here that the evidence the subject of this challenge was evidence of an admission.

MR DALTON:   But, your Honour, under section 61, it is the purpose for which the evidence is, in fact, tendered in the first instance.  The Crown says, subjectively, it asserts its purpose was for the non‑hearsay – the non‑hearsay purpose that your Honour is referring to.  That is a subjective ‑ it is a subjective position that is an assertion by the Crown.  And, as the Court said in Gilbert Adam – and I believe that your Honour was a member of that Bench back in 1999 – at 116, that purpose is to be objectively orientated, not subjectively.  It has to be objectively ascertained.

In that context, your Honour, what has occurred is the Crown has said, we eschew the hearsay purpose, we only wish to use this evidence for the non‑hearsay purpose.  But, under the Act, that purpose was, in fact, adverse to, in the first instance, the particular conspirators that it was in the first instance tendered against ‑ ‑ ‑

BELL J:   In the sense that any evidence in the Crown case tending to establish the Crown case might be described as adverse. 

MR DALTON:   That is so, your Honour, but it has to be a representation by a party, and that is what the admission definition says.  It is a representation by the party which catches the admission definition.  Your Honours, that is why it is necessary, in our submission, for this Court to determine what effect that definition, under the Act, has had upon the co‑conspirators’ rule and related considerations, in particular the way the Crown sought to rely upon it for the alleged non‑hearsay purpose.

BELL J: I thought we were agreed the evidence – when you refer to the co‑conspirators’ rule, it was no part of the basis upon which this evidence was left to the jury that it invoked what we describe as the co‑conspirators’ rule and what, nowadays, might be seen to attract section 87(1)(c) of the Evidence Act.  

MR DALTON:   Your Honour, the Crown eschewed that.

BELL J:   Yes.

MR DALTON:   But, the point that we are seeking to make is this, and that is ‑ ‑ ‑

BELL J:   You say, regardless of that, the evidence of the acts and declarations of one party to a conspiracy tended to establish the fact of the conspiracy, necessarily it comes within 87 of the Evidence Act. 

MR DALTON:   Exactly so, your Honour.

BELL J:   Yes, I think we understand that argument.

MR DALTON:   That is because of the definition of “admission” under the Act and, also, the understanding of the word “purpose”, pursuant to section 60.

BELL J:   Is it difficult to make this argument good, given that section 87(1) is concerned with “determining whether a previous representation” is to be “taken to be an admission by a party” and the case against your client was not left on the basis that any of these acts or declarations were admissions made by him.

MR DALTON:   Yes, your Honour, because they were not admissions made by him, in the first instance.

BELL J:   They were not to be taken to be admissions made by him, having regard to the scheme of the Act.

MR DALTON:   Your Honour, that was the way it was left.  Our position is it could not be left that way.

BELL J:   Was this a submission that was put to Justice Whealy?

MR DALTON:   Yes.

BELL J:   It was.  I see, all right. 

MR DALTON:   He actually said, in relation to that, that he found it a very difficult matter to determine.  At that point in time, also, Mr Button, SC, now Justice Button, was supporting my argument in that regard.  As I said, the Justice Whealy said that he found it very difficult but that he felt constrained by Macraild back in 1997 which is a drug case in New South Wales in the New South Wales Court of Criminal Appeal which, shortly after the advent of the Evidence Act in 1995, determined that the co‑conspirators’ rule – and the associated principles regarding evidence of that kind being led for a non‑hearsay purpose ‑ applied just as it did under the common law and we say that is wrong.

BELL J:   Section 87 is concerned – is an exception to the hearsay rule?

MR DALTON:   Yes, it is.

BELL J:   Evidence that is tendered for no hearsay purpose, you say, comes within 87.

MR DALTON:   Yes, your Honour.  Our argument is simply this.  A party cannot simply say the purpose for which we are tendering this is X.  That needs to be objectively viewed – objectively ascertained ‑ at 116 in Gilbert Adam in 1999 in relation to the proper interpretation of “purpose” pursuant to section 60 – not what is asserted by the other party.  And, if one looks at the effects of these representations in this case, they were adverse to the interests to the party they were first tendered against, coming within the definition of “admission” pursuant to the Act and, indeed, thereafter, for them to become admissible against another party they would have to go through either section 83 or 87.  So, it is our position that the landscape has changed.  No longer is that principle available, pursuant to the Act and the Act, pursuant to section 9, says that ‑ ‑ ‑

BELL J:   When you say, no longer is that principle available, you are saying, to the extent that the Court in Ahern drew a distinction between evidence received under the co‑conspirators’ rule and evidence adduced to establish the fact of the conspiracy for a non‑hearsay purpose.  That has been collapsed, in some way, by the Evidence Act.

MR DALTON:   That is right.

BELL J:   Yes, I understand.

MR DALTON:   Thank you, your Honour.  Mr Ozen reminds me – in relation to the maximum damage example that is used in the decision of the Court of Criminal Appeal, we say that is intrinsically tied with an element, as far as the second ground is concerned, regarding a terrorist act because that was the only enunciation in the evidence, on our submission, of maximum damage being done, as in imperilling the lives and danger of members of the public.  So, it was a quite critical example of this situation.

I note, the Court of Criminal Appeal said it was not, in fact – it was not Sharrouf’s representation.  Our position was, it was Sharrouf’s representation, he being another alleged co‑conspirator.  They said it was simply what Benbrika had to say, that was relevant and there was, otherwise, an association between the alleged conspirators and Benbrika and others and they were, therefore, adhering to his views. 

In our submission, the only way that was possibly relevant to Sharrouf, in the first instance, and any other co‑conspirators, was his presence there, obtaining that information.  If he – this was late at night.  If that had been a rant, a soliloquy, by he in the absence of others that had been taped, there was no way that could be shown to be properly admissible against any of the co‑conspirators.  It was not something that was published, as far as his views were concerned, therefore it was implicit for the link to admissibility that one of the conspirators – alleged conspirators – was, in fact, there when he said those things.

BELL J:   Mr Dalton, the Court of Criminal Appeal was a little critical of the way the objection was taken, it being, I think, a somewhat global objection.  Are you directing us to some particular passage in the Court of Criminal Appeal that tells us about this evidence?

MR DALTON:   Yes, your Honour.

BELL J:   What passage is that?

MR DALTON:   Your Honour, the passages in relation to the presence of Sharrouf is at page 893, paragraphs 239 to 246 and, in particular, at 241.

BELL J:   At 241, you say?

MR DALTON:   Yes, your Honour. 

BELL J:   The Court of Criminal Appeal here seems to be dealing with a complaint respecting relevance.

MR DALTON:   Just excuse me a moment, your Honour.

BELL J:   The matter I am raising with you, Mr Dalton, is an objection was taken, as I understand it, in global terms to the admission of evidence of acts and declarations of other conspirators for the ground that you are now seeking to advance before us but there seems to have been a lack of particularity.  You are taking us now to a particular instance that you say illustrates the force of your section 87 argument ‑ ‑ ‑

MR DALTON:   Yes, your Honour.

BELL J:   ‑ ‑ ‑ but it is by reference to what seems to have been a different contention being advanced before the Court of Criminal Appeal.

MR DALTON:   Your Honour, it was the same contention being advanced before the Court of Criminal Appeal.  Your Honour, that was the way it was dealt with by the Court of Criminal Appeal, I accept that, but if your Honours were to read number 38 of Justice Whealy’s decision – judgment – in relation to this very point, your Honours will see that the argument was fairly taken in relation to this and other related conversations – things that were said – representations by other co‑conspirators – which were of a highly‑inflammatory nature and very much assisted the Crown in its case in overall terms and highly prejudicial to the applicant in this application.

Your Honour, it is our submission the point was fairly raised before Justice Whealy and, as I said, that is in judgment number 38 – excuse me a moment.  Mr Ozen has copies of number 38 if the Court would be assisted in that regard.  Thank you very much.

KIEFEL CJ:   Where are you taking us to?

MR DALTON:   If your Honours just excuse me.  The application issues start at paragraph 11, your Honour, and then go over the page with the number of examples therein.  Then, your Honours will see the development of the admissions argument from paragraph 20 onwards.  Resolution of the issues begins at 34 and your Honour will see that reference to his Honour saying:

This is not an easy question to resolve ‑

at 41.  There is also the reference to the support of our argument in that regard by Mr Button at 40.  Then 41, and then your Honours will see the determinations, thereafter.

Your Honours, as was noted by his Honour, at the commencement of the judgment, there were three folders that were, in fact, tendered for the purpose of number 19, that was adopted thereafter with respect to this application, number 38.

KIEFEL CJ:   What do you say about what his Honour said at paragraph 54 – that your argument:

failed to accept and recognise to the distinction drawn in Ahern between evidence going to the existence and scope of the conspiracy and, by way of contrast –

MR DALTON:   That was the matter that was being taken up with me by Justice Bell earlier on ‑ ‑ ‑

KIEFEL CJ:   Yes, quite, yes.

MR DALTON:   ‑ ‑ ‑ to which our submission, in relation to that – as per the ground – is that that has now changed because of the definition of admission under the Evidence Act.

KIEFEL CJ:   I see, yes.  This is the collapsing of the ‑ ‑ ‑

MR DALTON:   Yes, your Honour.  Your Honours, then, in relation to the construction point, your Honour we are rather content to rely upon our submissions in that regard, except to say this, that it is a very wide net, this legislation, and, of course, that is understandable but it starts at a very early stage.  Importantly, if I can just note, in that regard, your Honours, the submissions that we made at appeal book 1089, paragraphs 34 and 35, we have taken his Honour’s findings in relation to this particular aspect of the contemplation with respect to the conspiracy as charged with the findings of fact that his Honour was able to make ‑ in relation to the matter of Touma, who was a co‑accused, he was dealt with previously ‑ and, then, these accused in 35. 

Your Honours will see that it is our submission that demonstrates that, it being necessary – the fault element being intention – that recklessness was not sufficient.  In our submission, the manner in which his Honour dealt with that ingredient, in circumstances where his Honour suggested that it was a legitimate threat and then used two examples, one being two protestors climbing up the sails of the Opera House and, another, on a Greenpeace vessel, diminished the effect of the legislation which permits for a protest – and it was the Crown case that what was to occur was in protest of Australia’s military involvement in Iraq – that it permits even serious damage to property by way of construction in relation to those characteristics under the Act.  So, your Honours, in our submission, it is a very critical component.

BELL J:   This argument comes down, though, to his Honour’s directions to the extent that on one occasion he referred to genuine and legitimate protest.  Is that ‑ ‑ ‑

MR DALTON:   Yes, your Honour, but that was when he dealt with that component of the ingredients of the charge in his directions to the jury.  So, one reference it may be but it was – and he actually refers to Parliament’s intention.

BELL J:   Mr Dalton, am I right in recollecting the trial itself went for some months.

MR DALTON:   It did.

BELL J:   At the conclusion, his Honour delivered a lengthy summing‑up, including handing out written statements as to the ingredients of the offence.

MR DALTON:   Yes, your Honour.

BELL J:   And this ground is based on a comment that his Honour made in the course of oral directions but did not find its way into the written directions and that his Honour withdrew and corrected following an application.  Is that right?

MR DALTON:   No, not quite. 

BELL J:   What is wrong with that?

MR DALTON:   Because it is not just one comment, your Honour.  What follows thereafter are the two examples.  And, then saying, thereafter – and this is not really a case put forward by any of the accused in these proceedings.

BELL J:   Indeed, it was not.

MR DALTON:   That is a very important point.  We have referred, in that regard, to the Court of Criminal Appeal’s decision, suggesting – at least in implicit terms – there is an evidentiary onus in relation to the accused with respect to this legislation.  We submit that is very wrong and it is a matter that should be rectified, rectified quickly, particularly in such wide‑ranging legislation that goes to such an early stage where – as all the findings of his Honour concluded – there was no plan that could actually be orientated from the evidence, no target, no class of targets.

KEANE J:   Your client had in his possession 10,000 rounds of ammunition and a telescopic sight for his gun.

MR DALTON:   Your Honour, there was evidence in relation – he was a licensed firearm holder and there was evidence in a confidential inquiry that was tendered at the proceedings in respect to his possession of firearms.  And, in relation to the ammunition, the ammunition could also be used in the making of a bomb, which goes into that argument in relation to serious damage to property would not be something that would be included as the first set of characteristics – the inclusive one, in contrast to the excluding ones, being acts that are available in legitimate protest – in protest.  I made the same mistake as his Honour.  And, your Honours, I note this, that also there are serious offences available, pursuant to State legislation, in respect to sabotage of buildings and so forth, carrying 25 years as the maximum sentence that would have been available despite this legislation.

KIEFEL CJ:   I see the time, Mr Dalton.

MR DALTON:   Thank you very much, your Honour.

KIEFEL CJ:   We need not trouble you, Ms Abraham.

The applicant seeks an extension of time within which to bring this application for special leave.  In our view any appeal in this matter would be futile.  There is no reason to doubt the decision below.  The application for extension is refused.

The Court will now adjourn to 10.00 am on Tuesday, 6 November in Canberra.

AT 10.38 AM THE MATTER WAS CONCLUDED