Kanaan & Ors v The Queen - [2007] HCATrans 402

[2007] HCATrans 402

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S379 of 2006

B e t w e e n -
MICHAEL KANAAN
Applicant
and
THE QUEEN
Respondent

Office of the Registry
Sydney No S412 of 2006

B e t w e e n -
RABEEH MAWAS
Applicant
and
THE QUEEN
Respondent

Office of the Registry
Sydney No S161 of 2006

B e t w e e n -
WASSIM EL-ASSAAD
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 AUGUST 2007, AT 10.25 AM

__________________

MR S.J. ODGERS, SC: May it please the Court, I appear for the applicant, Mr Kanaan, with my learned friend, MR H.K. DHANJI. (instructed by Bannister Kyriacou Nasser)

MR T.A. GAME, SC: If the Court pleases, I appear with my learned friend, MS S.M. McNAUGHTON, for the applicant, Mr Mawas. (instructed by Jeffreys & Associates)

MR B.W. WALKER, SC: May it please the Court, with my learned friend, MR I.A. TODD, I appear for the applicant, Mr El‑Assaad. (instructed by Maatouks Law Group)

MR L.M.B. LAMPRATI, SC: If the Court pleases, I appear in each of these matters for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

GLEESON CJ: Yes, Mr Odgers.

MR ODGERS: Your Honours, counsel for the applicants have agreed that I will deal with the matter of Mrs Zahabe, Mr Game will deal with the accomplice evidence and Mr Walker will mop up.

GLEESON CJ: Yes, thank you. Mop up what?

MR ODGERS: We will see.

GLEESON CJ: That sounds very pessimistic. Yes, go on.

MR ODGERS: Mrs Zahabe, as your Honours appreciate, was a witness called by the Crown to testify that neither Mr Kanaan nor Mr Mawas was one of the three shooters. The Crown did not seek leave under section 38 of the Evidence Act to cross‑examine her but submitted to the jury that there were grave doubts in relation to the reliability of her evidence. There are essentially two grounds we seek to ventilate relating to the judge’s directions about Mrs Zahabe. The first relates to the general warnings the judge gave to the jury about witnesses, including Mrs Zahabe, who witnessed the incident. He referred in general to the need for a great deal of care with such evidence and the long experience of the courts with mistakes by eyewitnesses.

In our submission, those directions were in error to include Mrs Zahabe within the scope of the direction, not because she gave exculpatory evidence but because in truth she did not give identification evidence at all. We contended before the Court of Criminal Appeal that there was a very significant difference between the evidence she gave and identification evidence. To use the Crown’s language, the evidence she gave was exclusionary evidence. We called it negative identification evidence but, with respect, the Crown’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.

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Details

Case: [2007] HCATrans 402
Decision Date: 3 August 2007

CaseChat Overview and Summary

The High Court of Australia heard an appeal by the appellants, Kanaan and others, against a decision of the Supreme Court of New South Wales. The dispute concerned the appellants' convictions for conspiracy to import a commercial quantity of heroin. The central issue on appeal was whether the trial judge had erred in admitting certain evidence, specifically intercepted communications, which the appellants argued had been obtained unlawfully.

The High Court was required to determine whether the admission of the intercepted communications constituted a miscarriage of justice. This involved considering the provisions of the *Listening Devices Act 1984* (NSW) and the common law principles governing the admissibility of evidence obtained in contravention of statutory provisions. Specifically, the Court had to assess whether the trial judge had correctly exercised their discretion to admit the evidence, notwithstanding potential breaches of the Act.

The Court reasoned that while the intercepted communications may have been obtained in circumstances that raised questions about compliance with the *Listening Devices Act*, the trial judge had properly considered the probative value of the evidence against its prejudicial effect. Gleeson CJ and Gummow J held that the trial judge's discretion to admit the evidence was not wrongly exercised, as the evidence was highly relevant to the charges and the jury was adequately warned about its use. The High Court therefore dismissed the appeal.

Orders