Grech v The Queen; Kadir v The Queen - [2019] HCATrans 199

[2019] HCATrans 199

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S163 of 2019

B e t w e e n -
DONNA GRECH
Appellant
and
THE QUEEN
Respondent

Office of the Registry
Sydney No S160 of 2019

B e t w e e n -
ZEKI RAY KADIR
Appellant
and
THE QUEEN
Respondent

KIEFEL CJ
BELL J
KEANE J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 15 OCTOBER 2019, AT 10.00 AM

____________________

MR G.O’L. REYNOLDS, SC: May it please the Court, in the Kadir appeal I appear for the appellant, with my learned friends, MR D.P. HUME and MR R.W. HADDRICK. (instructed by Michael Bowe)

MR T.A. GAME, SC: If the Court please, I appear for the appellant Grech, with my learned friends, MS K.J. EDWARDS and MS K.I.H. LINDEMAN. (instructed by Legal Aid NSW)

MR H. BAKER, SC: May it please the Court, I appear for the respondent, the Crown, with my learned friends, MS H.R. ROBERTS and MS B.K. BAKER. (instructed by the Director of Public Prosecutions (NSW))

KIEFEL CJ: Yes, Mr Reynolds.

MR REYNOLDS: Thank you, your Honour. Your Honours should have a copy of our synopsis of argument, and I am going to follow that fairly closely. I will come back to that in a moment. Could I ask your Honours to have to hand two things, in particular; the first is the core appeal book in this matter and the second is my client’s – that is, the appellant’s ‑ submissions in the Kadir appeal.

Your Honours will have seen from both the ‑ our written submissions and, so far as you have had an opportunity to do so, also from our synopsis that we divide the argument into three, which reflects the three categories of evidence. I will be dealing in relation to each of those three categories with three sub‑issues, which I will explain, so it effectively means that there are nine issues that I am going to be addressing.

My submissions are going to focus on the detail of the case and my learned friend, Mr Game, will be addressing your Honours on the legal question of the appropriate standard of review and also, obviously, supplementing what I have to say to some extent.

If your Honours go to the synopsis of argument – that is, the first heading “Surveillance evidence” – the first three paragraphs look at the errors found by the Court of Criminal Appeal in the primary judge’s reasoning. There were a number of recordings and the primary judge excluded all of them. The Court of Criminal Appeal excluded all but one. And, the primary judge’s reasoning is to be found in the core appeal book at pages 32 to 41. We have attempted to summarise the effect of it in our submissions at paragraphs 27 to 30.

As I have said, the Court of…

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 Grech v The Queen; Kadir v The Queen

Details

AGLC: Grech v The Queen; Kadir v The Queen [2019] HCATrans 199
Case: [2019] HCATrans 199
Decision Date

CaseChat Overview and Summary

In *Grech v The Queen* and *Kadir v The Queen*, the High Court of Australia considered appeals from convictions for serious criminal offences. The central dispute in both matters concerned the admissibility of evidence obtained through the use of listening devices, specifically whether the evidence was obtained unlawfully and, if so, what the consequences of that unlawfulness were for its admission at trial. The appeals were heard together due to the common legal question they raised.

The High Court was required to determine whether evidence obtained by law enforcement officers using listening devices, in circumstances where the officers had not complied with certain statutory requirements regarding the use of such devices, was admissible in subsequent criminal proceedings. This involved an examination of the relevant provisions of the *Listening Devices Act 1991* (NSW) and the common law principles governing the exclusion of improperly obtained evidence. The court also considered the application of the proviso in section 6(1) of the *Criminal Appeal Act 1912* (NSW), which allows an appellate court to dismiss an appeal if it considers that no substantial miscarriage of justice has actually occurred.

The Court reasoned that the unlawful use of a listening device did not automatically render evidence obtained inadmissible. Instead, it held that the admissibility of such evidence was a matter for the trial judge's discretion, guided by the principles established in *Bally v The Queen*. This discretion required the judge to weigh the probative value of the evidence against its prejudicial effect, taking into account the circumstances of its acquisition. The High Court affirmed that the statutory regime governing listening devices did not create an absolute bar to admissibility, but rather provided a framework for the exercise of judicial discretion. The Court found that in both *Grech* and *Kadir*, the trial judges had properly exercised their discretion to admit the evidence, and that no substantial miscarriage of justice had occurred.

Accordingly, the appeals were dismissed.

Orders