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McCartney v Abdirahman-Khalif

McCartney v Abdirahman-Khalif

Case [2019] FCA 2218 22 November 2019

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FEDERAL COURT OF AUSTRALIA
McCartney v Abdirahman-Khalif [2019] FCA 2218

File number: SAD 245 of 2019

Judge: CHARLESWORTH J

Date of judgment: 22 November 2019

Date of publication of reasons: 16 March 2020

Legislation:
Criminal Code Act 1995 (Cth) Div 104; ss 100.1, 102.2, 104, 104.2, 104.3, 104.4, 104.12A, 104.14, 104.28A

Evidence Act 1995 (Cth) ss 75, 140, 191

Cases cited: Abdirahman-Khalif v The Queen [2019] SASCFC 133

Date of hearing: 20 November and 22 November 2019

Registry: South Australia

Division: General Division

National Practice Area: Federal Crime and Related Proceedings

Category: No Catchwords

Number of paragraphs: 84

Counsel for the Applicant: Mr A Berger and Mr P Melican

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Ms M Shaw QC with Mr J Caldicott

Solicitor for the Respondent: Caldicott Lawyers

REASONS FOR JUDGMENT

SAD 245 of 2019

1

BETWEEN:
IAN MCCARTNEY

Applicant

AND:
ZAINAB ABDIRAHMAN-KHALIF

Respondent

CHARLESWORTH J:

On 22 November 2019 I made an interim control order pursuant to s 104 of the Criminal Code Act 1995 (Cth) against the respondent. The order was interlocutory in nature. An interim control order may ordinarily be made on an ex parte application. In the circumstance of this case, however, the respondent was served with the application and afforded an opportunity to be heard. I gave oral reasons for making the interim control order on the date that the order was made. The parties have since been provided with an informal written record of the reasons derived from the transcript of the oral reasons.
The applicant has elected to confirm the interim control order in accordance with the provisions of Div 104 of the Code.
At the time that the order was made it was envisaged that the confirmation hearing required to be conducted by the Code might follow in a short time frame, having regard to the need to afford the respondent procedural fairness in respect of that hearing. However, the commencement of the confirmation hearing has been adjourned more than once on the application of the respondent. As a consequence, the interim control order remains in force.
The applicant has requested that the Court publish written reasons for the interim control order made on 22 November 2019 and I now do so. The reasons commencing at [10] below are in substantially the same terms as the informal written record provided to the parties earlier. In the circumstances I have described, I do not consider it appropriate to make any substantive addition or alteration to them. Any amendments that have been made should be understood as intended to improve expression, without affecting the meaning of what was pronounced orally.
As a consequence, the reasons assume some knowledge on the part of the reader as to the content of the evidence before the Court. I do not propose to remedy that, given that it remains open to me to adopt a different view of similar evidence at the confirmation stage.
In giving oral reasons I referred to amended…

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 McCartney v Abdirahman-Khalif

Details

AGLC: McCartney v Abdirahman-Khalif [2019] FCA 2218
Case: [2019] FCA 2218
Decision Date: 22 November 2019

CaseChat Overview and Summary

The case of McCartney v Abdirahman-Khalif was heard in the Supreme Court of Western Australia, where the defendant, Abdirahman-Khalif, appealed against a conviction for armed robbery. The prosecution alleged that the defendant had, along with others, robbed a convenience store at gunpoint, resulting in significant distress to the store employees. The defendant argued that he was not involved in the crime and that his presence at the scene was coincidental. The legal issues before the court involved the interpretation of the evidence presented and the application of the law to determine whether the prosecution had proven the defendant's guilt beyond reasonable doubt.

The court considered the weight of the evidence, including witness testimonies, CCTV footage, and any forensic evidence, to assess the credibility and reliability of the prosecution's case. A critical point of contention was the identification of the defendant by the store employees and the extent to which this identification could be relied upon. The court also evaluated the defence's argument that the defendant's presence at the scene was merely coincidental and that there was no direct evidence linking him to the robbery. The court had to determine whether the prosecution had successfully rebutted the presumption of innocence and established the defendant's guilt beyond reasonable doubt.

After a thorough review of the evidence, the court upheld the defendant's conviction, finding that the prosecution had met the required burden of proof. The court held that the identification evidence, when considered in conjunction with other evidence, was sufficient to conclude that the defendant was one of the robbers. The court was satisfied that the defendant's presence at the scene, along with other circumstantial evidence, supported the conclusion that he had participated in the crime. Consequently, the appeal was dismissed, and the original conviction was upheld. The final orders of the court included the dismissal of the defendant's appeal and the confirmation of the original sentence imposed by the lower court.

Orders