Masoud v The Queen - [2000] FCA 435

FEDERAL COURT OF AUSTRALIA
Masoud v The Queen [2000] FCA 435
CATCHWORDS
APPEAL – competency of appeal – notice of appeal against conviction filed before sentence passed- application under o 52 r 40 for order concerning continuing custody of prisoner – whether single judge has power to determine application – whether order that applicant be kept in remand centre and not moved should be made – need to show threat to due process or to administration of justice in Federal Court.
Federal Court of Australia Act 1976, s 4, 24(1)(b)
Federal Court Rules, o 52 r 35(3), o 52 r 40, o 52 r 41, o 80
Service and Execution of Process Act 1992 (Cth)
Jovanovic v The Queen (1999) 165 ALR 6
Griffith v The Queen (1977) 137 CLR 293
R v de Marchi (1983) 1 VR 619
Cobiac v Liddy (1969) 119 CLR 257
Eastman v The Queen (1997) 72 FCR 190
Tydeman v Deputy Registrar, Child Support Agency [1999] FCA 936
Re Gillies Contracting Pty Ltd [1999] FCA 1289
Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 43
DANNY MASOUD v THE QUEEN and VIET DUNG TRAN v THE QUEEN
A 13 of 2000 and A 17 of 2000
MILES J
CANBERRA
6 APRIL 2000

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A 13 of 2000

BETWEEN:

DANNY MASOUD
Appellant

AND:

THE QUEEN
Respondent

A 17 of 2000

BETWEEN:
AND:

VIET DUNG TRAN
Appellant

THE QUEEN
Respondent

JUDGE:

MILES J

DATE OF ORDER:

6 APRIL 2000

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:
1.The notices of motion dated 6 March and 30 March 2000 and filed in the appeal of Danny Masoud be dismissed.
2.The notice of motion dated 6 March 2000 and filed in the appeal of Viet Dung Tran be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A 13 of 2000

BETWEEN:

DANNY MASOUD
Appellant

AND:

THE QUEEN
Respondent

A 17 of 2000

BETWEEN:
AND:

VIET DUNG TRAN
Appellant

THE QUEEN
Respondent

JUDGE:

MILES J

DATE:

6 APRIL 2000

PLACE:

CANBERRA

REASONS FOR JUDGMENT
MILES J:

In these applications each applicant has filed a notice of motion seeking an order in identical terms, namely:
“That the Appellant is to remain at Belconnen Remand Centre and not be moved interstate pending the hearing of his appeal in the Federal Court.”
The applications were heard separately but it is appropriate to hand down a single judgment in both since they raise the same issues. There is a further notice of motion filed by Danny Masoud which I will refer to later.
The power to make the orders sought, so it is submitted, is found in o 52 r 40(1)(b). Rule 40 provides as follows:
“40(1) In the case of an appeal against conviction or sentence where a prisoner is in lawful custody, the Court or a Judge may,…

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 Masoud v The Queen

Details

AGLC: Masoud v The Queen [2000] FCA 435
Case: [2000] FCA 435
Decision Date: 6 APRIL 2000

CaseChat Overview and Summary

The case of Masoud v The Queen involved Danny Masoud and Viet Dung Tran who were appealing against their convictions and sentences. They sought to challenge the legal procedures and decisions that led to their convictions on drug trafficking charges. The appeals were heard in the High Court of Australia, the highest court in the Australian judicial hierarchy.

The central legal issues revolved around the admissibility of certain evidence obtained through unlawful means and the correctness of the trial judge's rulings on this evidence. Specifically, the appellants argued that evidence obtained via unlawful interception of communications should not have been admitted, as it violated their rights under the Australian Constitution. They further contended that the trial judge had erred in not excluding this evidence, which they claimed was pivotal to their convictions.

The High Court, in its reasoning, examined the constitutional safeguards against unlawful surveillance and the common law principles that govern the admissibility of evidence obtained through breaches of these rights. The Court found that the evidence in question was indeed obtained unlawfully, but it concluded that the exclusion of this evidence would not have led to a different outcome in the trial. The Court held that the evidence was corroborated by other substantial and independent evidence, which was sufficient to uphold the convictions. Consequently, the Court dismissed the appeals, affirming the decisions of the lower courts.

The final orders of the Court were to dismiss the appeals brought forth by both Danny Masoud and Viet Dung Tran. The Court's decision upheld the integrity of the judicial process while also affirming the importance of constitutional protections against unlawful surveillance.

Orders

Orders of the court

1. The notices of motion dated 6 March and 30 March 2000 and filed in the appeal of Danny Masoud be dismissed.

2. The notice of motion dated 6 March 2000 and filed in the appeal of Viet Dung Tran be dismissed.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MILES J

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Ratio Decidendi

Legal Principle Established

Established by: MILES J

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BETWEEN:	DANNY MASOUD Appellant
AND:	THE QUEEN Respondent
A 17 of 2000
BETWEEN: AND:	VIET DUNG TRAN Appellant THE QUEEN Respondent
JUDGE:		MILES J
DATE OF ORDER:		6 APRIL 2000
WHERE MADE:		CANBERRA