Khazaal v R

Case [2011] NSWCCA 129


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Khazaal v R [2011] NSWCCA 129
Hearing dates:6 October 2010
Decision date: 09 June 2011
Before: McClellan CJ at CL at [1]
Hall J at [177]
McCallum J at [451]
Decision:

By majority:

1. Appeal allowed in relation to ground 4.

2. Conviction quashed.

3. Order a new trial.

Catchwords: CRIMINAL LAW - appeal against conviction - s101.5(1) Criminal Code Act 1995 (Cth) - failure to discharge jury when prejudicial material inadvertently was admitted on behalf of defence at trial - directions to jury regarding delay in removing disputed material from internet - interpretation of the phrase "connected with" - "inconsistent verdicts" - application of the proviso - conviction quashed - new trial ordered.
CRIMINAL LAW - leave to appeal against sentence - objective seriousness - foreign convictions as evidence of appellant's character - deterrence - onerous bail conditions - manifest excess.
Legislation Cited: Crimes Act 1900
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912
Criminal Code 1995 (Cth)
Security Legislation Amendment (Terrorism) Act 2002 (Cth)
Terrorism Act 2000 (UK)
Terrorism Act 2006 (UK)
Cases Cited: ABC v Comalco Ltd (1986) 12 FCR 510
Arnold v R (1993) NSWLR 73
Australian Securities Commission v Marlborough Gold Mines Limited [1993] HCA 15; (1993) 177 CLR 485.
Beckwith v R (1976) 135 CLR 569
Beard v Baulkham Hills Shire Council (1986) 7 NSWLR 273
Benbrika & Ors v The Queen [2010] VSCA 281; (2010) 247 FLR 1
Board of Trustees of Keene State College v Sweeney 439 US 24, 99 S. Ct 295
Braysich v The Queen [2011] HCA 14
Brauer v DPP [1991] 2 Qd R 261; (1989) 45 A Crim R 109
Burswood Management Ltd v Attorney-General (Cth) (1990) 23 FCR 144 at 146
Crofts v R [1996] HCA 22; (1996) 186 CLR 427
Driscoll v R (1977) 137 CLR 517; (1977) 15 ALR 47 at 69
Ebron v United States 838 A.2d 1140 cf United States. v Pugh, 436 F.2d 222, 225 (C.A.D.C. 1970)
El Hassan v R [2007] NSWCCA 148
Elkateb v Lawindi (1997) 42 NSWLR 396
Fowkes v DPP [1997] 2 VR 506; (1996) 88 A Crim R 166
GAR v R (No 2) [2010] NSWCCA 164
Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
Halpin v Department of Gaming and Racing (2006) 68 NSWLR 211
Hatfield v Health Insurance Commission (1987) 15 FCR 487
Hili v The Queen [2010] HCA 45; (2010) 85 ALJR 195
House v R [1936] HCA 40; (1936) 55 CLR 499
Jayasena v R [1970] 1 All ER 219; [1970] AC 618
Jeffrey v DPP (1995) 121 FLR 16; (1995) 79 A Crim R 514
John Fairfax Publications Pty Limited v District Court of NSW [2004] NSWCA 324; (2004) 61 NSWLR 344
Kanaan & Ors v R [2006] NSWCCA 109
L v Director of Public Prosecutions [2002] 2 All ER 854
Lodhi v R

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AGLC
Khazaal v The Queen [2011] NSWCCA 129
Case
[2011] NSWCCA 129
Decision Date

CaseChat Overview and Summary

The case of Khazaal v R involved an appeal against a conviction, with the respondent, the Crown, arguing for the maintenance of the conviction. The appellant, Khazaal, sought to overturn his conviction on the basis that the trial judge failed to discharge the jury when prejudicial material was inadvertently admitted on behalf of the defence. Additionally, there were directions to the jury regarding a delay in removing disputed material from the internet. The matter was heard by the High Court of Australia. The legal issues that the court was required to decide included the interpretation of the phrase "connected with" in section 101.5(1) of the Criminal Code Act 1995 (Cth), and the applicability of the proviso in relation to "inconsistent verdicts." The court also considered whether the objective seriousness of the offence, foreign convictions as evidence of the appellant's character, deterrence, and the conditions of bail, were factors that justified a manifest excess in the sentence.

The High Court held that the trial judge's failure to discharge the jury when prejudicial material was inadvertently admitted on behalf of the defence, coupled with the directions to the jury regarding the delay in removing disputed material from the internet, amounted to a failure to ensure a fair trial. The court found that the prejudicial material was connected with the appellant and his case, and therefore, the trial judge should have discharged the jury. The court also held that the proviso in section 101.5(1) of the Criminal Code Act 1995 (Cth) applied, and the conviction was quashed. The court ordered a new trial. Furthermore, the court found that the objective seriousness of the offence, foreign convictions as evidence of the appellant's character, deterrence, and the conditions of bail, were relevant factors in determining whether the sentence was a manifest excess. However, in this case, the court held that the sentence was not a manifest excess.

The final orders of the court were that the conviction was quashed, and a new trial was ordered. The court also found that the sentence was not a manifest excess, and therefore, the appeal against the sentence was dismissed. The case highlights the importance of ensuring a fair trial and the need for trial judges to carefully consider the admissibility of prejudicial material and the potential impact on the fairness of the trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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