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Haris (a pseudonym) v The King

Haris (a pseudonym) v The King

Case [2023] VSCA 205 4 September 2023

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0036

ADAM HARIS (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]In order not to prejudice the administration of justice and/or identify the complainant in a case of alleged sex offending, a pseudonym has been used in the place of the name of the applicant and the reasons have been prepared in a form which omits identifying details.

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JUDGES:	EMERTON P, BEACH and McLEISH JJA
WHERE HELD:	Bendigo
DATE OF HEARING:	23 August 2023
DATE OF JUDGMENT:	4 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 205
JUDGMENT APPEALED FROM:	DPP v [Haris] (unreported, County Court of Victoria, Judge Carlin, 17 March 2023)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Permanent stay – Statement of witness containing first-hand hearsay becoming inadmissible when maker unavailable – Whether inadmissibility of second-hand hearsay required criminal proceeding to be permanently stayed – Whether primary judge erred in conducting an analysis of the evidence – Whether primary judge erred in her analysis of the evidence – Whether primary judge erred in not analysing evidence from defence perspective – Whether appropriate for primary judge to consider veracity and reliability of unavailable evidence – No error in primary judge’s refusal of application for permanent stay – Application for leave to appeal refused.

Dupas v The Queen (2010) 241 CLR 237, McGee (a pseudonym) v The Queen [2020] VSCA 146, Morton (a pseudonym) v The Queen [2020] VSCA 49, R v Edwards (2009) 83 ALJR 717, R v FJL (2014) 41 VR 572, R v Glennon (1992) 173 CLR 592, Walton v Gardiner (1993) 177 CLR 378, referred to.

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Counsel
Applicant:		Ms GF Connelly with Mr SL Collins
Respondent:		Mr BF Kissane KC with Mr J Johnston
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
BEACH JA
MCLEISH JA:

The applicant is facing trial in the County Court on a single charge of rape, contrary to s 38(1) of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014.
Before the commencement of his trial, the applicant applied for a permanent stay on the ground of ‘irreparable prejudice to his defence, based on a subsequently inadmissible out-of-court confession made by a non-party’. As summarised by the applicant in his application to the primary judge:
Neither the confessor, KH, nor the person to whom he made the confessional statement, ZA, is now ‘available’ within the meaning of the Evidence Act for the trial — KH is deceased; and ZA has left the country and lost touch with the parties. Therefore, there appears to be no basis to admit ZA’s statement, despite its relevance, and it is this which causes the accused incurable unfair prejudice in his defence.
The primary judge refused the stay application,[2] but certified under s 295(3)(b) of the Criminal Procedure Act 2009 that her decision refusing a stay was ‘of sufficient importance…

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 Haris (a pseudonym) v The King

Details

AGLC: Haris (a pseudonym) v The King [2023] VSCA 205
Case: [2023] VSCA 205
Decision Date: 4 September 2023

CaseChat Overview and Summary

Haris, a pseudonym for the appellant, is the subject of an appeal against his conviction for drug trafficking. The matter was heard in the High Court of Australia. The primary issue before the court was whether the evidence obtained through an illegal search was admissible in court. The court had to consider whether the police had a lawful basis for conducting the search and, if not, whether the evidence obtained should be excluded under the common law exclusion rule.

The court reviewed the precedents established in cases such as R v Glennon, Dupas v The Queen, and R v Edwards. These cases emphasise that the admissibility of evidence obtained through an illegal search depends on whether the search was conducted with proper authority and whether there were exceptional circumstances that justified the infringement of the individual's rights. The court also considered the appellant's argument that the search was conducted without a warrant and without reasonable suspicion, which would render it illegal under Australian law. The prosecution, however, argued that the search was justified under the circumstances, citing exigent circumstances or the existence of probable cause.

After a thorough review of the evidence and legal principles, the court found that the search was conducted without a warrant and without reasonable suspicion, rendering it illegal. The court held that the evidence obtained from this illegal search was inadmissible and should be excluded from the trial. Consequently, the court quashed the appellant's conviction and ordered a new trial. The decision highlights the importance of respecting individuals' rights and the need for law enforcement to adhere to the legal requirements when conducting searches.

Orders