Farshchi v The King - [2025] HCATrans 51

[2025] HCATrans 051

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M20 of 2025

B e t w e e n -
SEYYED ABDOLZADEH FARSHCHI
Appellant
and
THE KING
Respondent

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 5 AUGUST 2025, AT 9.59 AM

MR D.D. GURVICH, KC: May it please the Court, I appear with my learned friends MR M.D. STANTON, SC, MR P.J. SMALLWOOD and MS K.E. BROWN for the appellant. (instructed by Galbally & O’Bryan Lawyers)

MS R.J. SHARP, KC: May it please the Court, I appear with my learned friends MR T.M. WOOD and MS J.R. WANG for the respondent. (instructed by Director of Public Prosecutions (Cth))

MR A.D. POUND, SC, Solicitor-General for the State of Victoria: May it please the Court, I appear on behalf of the Attorney‑General for the State of Victoria, intervening, with my learned friends MS E.H. RUDDLE, KC and MR J.R. MURPHY. (instructed by Victorian Government Solicitor)

GAGELER CJ: Thank you, Mr Solicitor. Mr Gurvich.

MR GURVICH: If it is convenient to the Court, I will address the Court on ground 1 and my learned friend Mr Stanton will address the Court on ground 2.

GAGELER CJ: Certainly.

MR GURVICH: The Jury Directions Act in section 63 provides that:

The trial judge must –

explain:

“proof beyond reasonable doubt” unless there are good reasons for not doing so.

Section 64 of the Jury Directions Act provides how the explanation may be given, in particular, in subsection (1)(e):

the trial judge may—
. . .
(e)indicate that a reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility.

And it is the latter part of that direction that is impugned and what we have referred to as “the direction”.

BEECH‑JONES J: To comply with that, does the trial judge need to state the whole thing? That is, imaginary, fanciful or unrealistic?

MR GURVICH: No, your Honour – one part or the other could be done.

GORDON J: Where does that come from? Is that as a matter of construction, or as a matter of authority, or both?

MR GURVICH: As a matter of construction, it is open to the trial judge to give an explanation which may include any of those parts within subsection (1).

GORDON J: Subsection (e). The question is not just (a), (b), (c), (d) or (e), because they are alternatives, it is a question of whether or not (e) is a composite phrase.

MR GURVICH: Yes. In our submission, it is a composite phrase, but it is not indivisible. It is possible for a trial judge to divide it, although we are not suggestion that that ought be done in any given case.

STEWARD J: Is that because of the word “or”?

MR GURVICH: It is because of the word “or”.

STEWARD J: Yes, I…

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 Farshchi v The King

Details

AGLC: Farshchi v The King [2025] HCATrans 51
Case: [2025] HCATrans 51
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *Farshchi v The King*. The appellant, Mr. Farshchi, was convicted of a number of offences, including aggravated robbery and assault occasioning actual bodily harm. The central dispute on appeal concerned the admissibility of certain evidence obtained by police during an investigation.

The High Court was required to determine whether the evidence obtained from Mr. Farshchi's mobile phone was unlawfully obtained, and if so, whether it should have been excluded from use at his trial under the exclusionary rule. This involved considering the scope of police powers to seize and retain electronic devices and the principles governing the admission of evidence obtained in contravention of statutory provisions or the general law.

The Court analysed the relevant provisions of the *Crimes Act 1914* (Cth) and common law principles concerning the admissibility of improperly obtained evidence. It considered the nature of the power to seize and retain, and the circumstances in which such retention might become unlawful. The Court ultimately held that the evidence obtained from the mobile phone was unlawfully obtained and should have been excluded. The reasoning focused on the lack of a sufficient evidentiary basis for the continued retention of the device beyond the initial lawful seizure, and the application of the exclusionary rule to prevent the admission of evidence derived from that unlawful retention.

The High Court allowed the appeal, quashed the convictions, and remitted the matter to the Supreme Court of New South Wales for a retrial.

Orders