Hamide v The Queen - [2020] HCATrans 85

[2020] HCATrans 085

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S348 of 2019

B e t w e e n -
OMAR HAMIDE
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 12 JUNE 2020, AT 11.40 AM

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MS G.E.L. HUXLEY for the applicant. (instructed by Elie Rahme and Associates)

MR H. BAKER, SC: May it please the Court, I appear for the respondent with MS B.K. BAKER. (instructed by Solicitor for Public Prosecutions (NSW))

NETTLE J: Yes, Mr Walker.

MR WALKER: Your Honours can see in a number of places, but we will select the paraphrase starting at page 118 in our written submissions, the undesirable extraneous material introduced by interjection and other, we hope, inadvertence on the part of the witnesses, material which according to the regulation of the fairness of the trial was, in fact, undesirable.

I do not need to dwell on the detail but your Honours appreciate that given the specific nature of the charges in question to introduce, except in response to questions which relevantly made it appropriate to do so, notions of a criminal drug milieu or violence or highly immoral activity was outside the realm of that which was appropriate. When such material is introduced, unfairly prejudicial, as we would put it, counsel for an accused has a choice reflected in the decision the court must make.

Now, either there needs to be a discharge because directions will not avail to a degree sufficient to ensure a fair trial or there needs to be directions. That, of course, is then reflected in the way in which the trial judge, guardian of the fairness of the process, must decide the case. Put negatively, we accept discharge is not appropriate if directions will adequately avail so as to ensure a fair trial. So, when counsel applies for a discharge, the argument, both explicit and implicit is directions will not suffice.

When one is looking to material such as was interjected into these proceedings, there is the well‑known forensic judgment which immediately arises for counsel always, as experience shows, fully understood by trial judges and appellate benches, namely, “If I make anything of this will I make it worse?”, reflected then, of course, in the question, “If I ask the judge who was persuaded by my application to make a direction to deal with this material, will I make it worse?” The sign in neon, “Don’t attend to that circumstance, it is unfairly prejudicial”.

Now, true it is that that is a forensic judgment, utterly familiar in this area of discourse, which rather butts up against the notion, upon which the system is based, that juries follow directions. But that, with respect, represents a pragmatic realism about…

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.

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Details

Case: [2020] HCATrans 85
Decision Date: 12 June 2020

CaseChat Overview and Summary

This case concerned an application for special leave to appeal to the High Court of Australia. The applicant sought to challenge his conviction, arguing that the trial judge erred by refusing to discharge the jury. The core of the applicant's argument was that inadmissible and unfairly prejudicial material had been introduced during the trial, and that directions from the judge were insufficient to remedy the prejudice, thereby leading to a substantial miscarriage of justice.

The legal issues before the High Court included whether the trial judge's refusal to discharge the jury was an error, and if so, whether this constituted a substantial miscarriage of justice. The applicant contended that the introduction of material relating to a criminal drug milieu, violence, or highly immoral activity was outside the scope of the charges and unfairly prejudicial. This raised the question of the appropriate remedy when such material is introduced: discharge of the jury or judicial directions. The applicant argued that in this instance, directions were inadequate and that the forensic judgment of counsel, which often weighs the risk of making matters worse by drawing attention to prejudicial material, was relevant to the decision-making process of the trial judge.

The applicant's counsel argued that the trial judge correctly identified the conundrum of choosing between a discharge and directions, but erred in concluding that directions would suffice. They submitted that the directions given were not sufficiently explicit to identify the prejudicial material and the reasons for its exclusion, and that a direction explicit enough to be effective would have been self-defeating. This, it was argued, meant that a discharge was the only appropriate course to ensure a fair trial. The applicant also raised questions about the application of established principles, such as those in *Crofts*, *Weiss*, and *Patel*, concerning miscarriages of justice and the proviso to the appeal.

The respondent argued that the trial judge's directions were sufficient to prevent a miscarriage of justice. They contended that the Court of Criminal Appeal correctly assessed the situation, finding that the directions adequately focused the jury on the specific charges and that the prejudicial material, when viewed in context, did not have a materially prejudicial effect. The respondent also submitted that the approach taken by the Court of Criminal Appeal, while not explicitly referencing *Patel*, was consistent with its principles by focusing on the statutory language and the question of substantial miscarriage of justice. The respondent maintained that the cumulative effect of the evidence did not lead to a miscarriage and that the trial judge's assessment of the jury's awareness of the applicant's involvement was correct.

Orders