Farachi v The King - [2024] VSCA 239

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0016

GHAZWAN FARACHI	Applicant
v
THE KING	Respondent

---

JUDGES:	McCann JR
WHERE HELD:	Melbourne
DATE OF HEARING:	19 September 2024
DATE OF JUDGMENT:	17 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 239

---

CRIMINAL LAW – Appeal – Application by Chief Commissioner of Police for non‑disclosure order pursuant to s 416A(1)(b) of the Criminal Procedure Act 2009 – Where amicus curiae appointed as contradictor – Where subject document is of relevance to the issues raised in the appeal – Where subject document could have been used to impeach the credit of the principal witness against the applicant – Where evidence might be challenged as having been improperly or unlawfully obtained pursuant to s 138 of the Uniform Evidence Act 2008 – Claim for public interest immunity – Application of s 130 of the Uniform Evidence Act 2008 – Where release of the document would create a risk [redacted] – Where interests of justice require non‑disclosure of the subject document.

Criminal Procedure Act 2009; Uniform Evidence Act 2009.

Farachi v The King [2023] VSCA 253; Roberts v The Queen [2020] VSCA 58; 60 VR 431; Chief Commissioner of Police v Crupi [2024] HCA 34; [Redacted]; Gavanas v The King [2022] VSCA 271; 304 A Crim R 503.

---

Counsel
Applicant:	No appearance
Respondent:	No appearance
Chief Commissioner of Police	Mr J Bayly
As Amicus Curiae	Mr G Hughan
Solicitors
Applicant:	--
Respondent:	--
Chief Commissioner of Police	Victorian Government Solicitor’s Office
As Amicus Curiae	--

---

MCCANN JR:

Introduction

In Mr Ghazwan Farachi’s (‘the applicant’) appeal against conviction the Court has previously ordered production to the Court by the Chief Commissioner of Victoria Police (‘the Chief Commissioner’).[1] The Court has also previously upheld the Chief Commissioner’s claims of public interest immunity in relation to some of the information contained in those documents.[2]
[1]Orders for production pursuant to s 317 of the Criminal Procedure Act2009 were made on 19 July 2022.
[2]There was an exchange of partially unredacted documents.
The Chief Commissioner has now applied to the court pursuant to s 416A(1)(b) of the Criminal Procedure Act 2009 (‘CPA’) and s 130 of the Uniform Evidence Act 2008 (‘UEA’) to be excused from disclosing a further document (‘the document’). The document was referred to in submissions filed by the Chief Commissioner in the previous claim of public interest immunity made by the Chief Commissioner but was then not included in the documents the Court was ultimately asked to consider in that determination.[3]
[3]Farachi v The King [2023] VSCA 253, [9].
Because the Chief Commissioner has subsequently concluded that he may be obliged to disclose this document pursuant to his obligations pursuant to the CPA and/or his common law duty of disclosure, he seeks to be excused from doing so by order of the Court.
Neither the applicant nor respondent were provided with the document. Both were provided with the Chief Commissioner’s…

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 Farachi v The King

Details

AGLC: Farachi v The King [2024] VSCA 239
Case: [2024] VSCA 239
Decision Date: 17 October 2024

CaseChat Overview and Summary

The case of Farachi v The King involved the applicant, Farachi, appealing against a decision made by the Chief Commissioner of Police to apply for a non-disclosure order pursuant to section 416A(1)(b) of the Criminal Procedure Act 2009. The Chief Commissioner sought to prevent the disclosure of a document that was of relevance to the issues raised in the appeal. The subject document could have been used to impeach the credit of the principal witness against Farachi, and there was a possibility that the evidence might be challenged as having been improperly or unlawfully obtained under section 138 of the Uniform Evidence Act 2008. The application for a non-disclosure order was contested by Farachi, who claimed that the release of the document would create a risk to the interests of justice.

The legal issues that the court had to decide involved the application of sections 416A(1)(b) and 130 of the Uniform Evidence Act 2008. The court had to determine whether the release of the subject document would create a risk, and whether the interests of justice required the non-disclosure of the document. The court had to consider the principles of public interest immunity and whether the release of the document would be contrary to the interests of justice.

The court found that the subject document could potentially be used to impeach the credit of the principal witness against Farachi. However, the court also found that the release of the document would create a risk to the interests of justice, as it could potentially prejudice the fairness of the proceedings. The court held that the interests of justice required the non-disclosure of the subject document, and that the application for a non-disclosure order should be granted. The court found that the principles of public interest immunity applied, and that the release of the document would be contrary to the interests of justice. The court's decision was based on a careful consideration of the relevant legal principles and the facts of the case.

The final orders of the court were that the application for a non-disclosure order should be granted, and that the subject document should not be disclosed to the applicant. The court held that the interests of justice required the non-disclosure of the document, and that the principles of public interest immunity applied. The court's decision was based on a careful consideration of the relevant legal principles and the facts of the case.

Orders