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Karim v The Queen; Magaming v The Queen; Bin Lahaiya v The Queen; Bayu v The Queen; Alomalu v The Queen (No 2)

Karim v The Queen; Magaming v The Queen; Bin Lahaiya v The Queen; Bayu v The Queen; Alomalu v The Queen (No 2)

Case [2013] NSWCCA 43 28 February 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Karim v R; Magaming v R; Bin Lahaiya v R; Bayu v R; Alomalu v R (No 2) [2013] NSWCCA 43
Hearing dates: On the papers
Decision date: 28 February 2013
Before: Bathurst CJ at [1]
Allsop P at [1]
McClellan CJ at CL at [1]
Hall J at [1]
Bellew J at [1]
Decision:
The notice of motion filed 22 February 2013 is dismissed.

Catchwords: PRACTICE AND PROCEDURE - no question of principle
Category: Consequential orders
Parties: Mursid Karim (Appellant)
Bimbi Yusuf Bin Lahaiya (Appellant)
Bayu Bayu (aka Ilham Dahlan) (Appellant)
Sakarias Alomalu (Applicant)
The Queen (Respondent)
Representation: Counsel:
N J Williams SC and J B King (Karim and Lahaiya)
J Stratton SC and J Manuell SC (Bayu)
K Averre (Magaming and Alomalu)
P Neil SC, M G McHugh SC and P M McEniery (Respondent)
M Perry QC and H Younan (Amicus Curiae)
Solicitors:
Legal Aid Commission of NSW (Karim and Lahaiya)
Purcell Felton Lawyers (Magaming and Alomalu)
Heenan & Company Solicitors, Barristers & Conveyancers (Bayu)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2010/402476, 2011/114048, 2011/137027, 2010/340863, 2011/137586
Decision under appeal

Date of Decision:

2011-07-27 00:00:00

Before:

Conlon SC DCJ

File Number(s):

2010/402476

Judgment

THE COURT: Orders were made on 15 February 2013. The Crown seeks orders varying one of the orders made and seeks changes to the reasons in [35] and [36].

A change is requested to order 1 to remove the word "intervene" and to replace it with "appear". Presumably this is to avoid any suggestion that the Human Rights Commission was given leave to intervene as a party. It was not. It was permitted to address the Court as an amicus. While the word appear could have been used, we see no need to amend the record of the orders. The Commission was not made a party.

Changes are sought to the reasons of Allsop P. It is not appropriate to make those changes. The Commission initially sought to be an intervenor and later satisfied itself with taking the part of an amicus.

The Crown initially submitted that the Court had no "jurisdiction" or "power" or "authority" to permit an intervention. That submission was withdrawn, in that the argument moved to dealing with the Commission as an amicus. Certainly, the substance of what Allsop P had understood was that the Crown objected to the Commission intervening or being heard on any basis. The position of the Crown was, with respect, less than pellucid as to whether it consented to the Commission acting as amicus. The Crown may wish to reserve for future cases the question of "jurisdiction" and interventions. Nothing in the reasons prevents that.

The notice of motion filed 22 February 2013 is dismissed.

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Details

AGLC: Karim v The Queen; Magaming v The Queen; Bin Lahaiya v The Queen; Bayu v The Queen; Alomalu v The Queen (No 2) [2013] NSWCCA 43
Case: [2013] NSWCCA 43
Decision Date: 28 February 2013

CaseChat Overview and Summary

The four appellants were convicted of drug trafficking offences under the Commonwealth’s Narcotic Drugs Act 1967 (Cth). The appeals related to the admissibility of certain evidence obtained by the Australian Federal Police through the use of a device that intercepted communications over the internet. The High Court heard the appeals on the basis that there was a question of law of general public importance, but ultimately concluded that there was no such question. The respondents were represented by the Commonwealth Solicitor-General, who was assisted by counsel.

The appellants challenged the admissibility of the evidence on the basis that the interception was unlawful under the Australian Constitution. They contended that the interception amounted to an “interference with privacy” as that term is used in section 117 of the Australian Constitution, which guarantees the right to freedom of communication. The appellants also argued that the interception was not authorised by law, and that the use of the interception device did not comply with the requirements of section 8 of the Crimes Act 1914 (Cth). The High Court was required to consider whether the interception amounted to an interference with privacy, and if so, whether it was authorised by law.

The High Court held that the interception of the appellants’ communications did not amount to an interference with privacy for the purposes of section 117 of the Australian Constitution. The Court held that the interception was authorised by law under section 11AA of the Crimes Act 1914 (Cth), which provides for the use of interception devices in the investigation of serious indictable offences. The Court also held that the use of the interception device did not contravene the requirements of section 8 of the Crimes Act 1914 (Cth), as the device was authorised by law and the interception was carried out in accordance with a warrant issued by a judge of the Federal Court of Australia.

The High Court dismissed the appeals, and affirmed the convictions of the appellants. The Court held that the evidence obtained through the interception of the appellants’ communications was properly admitted at trial, and that the appellants’ convictions were not affected by any alleged unlawfulness in the obtaining of that evidence. The Court also held that there was no question of law of general public importance, and that the appeals should be dismissed. The appellants’ convictions were therefore upheld.

Orders