Moti v The Queen [2011] HCATrans 96 - [2011] HCATrans 96

[2011] HCATrans 096

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No B47 of 2010

B e t w e e n -
JULIAN RONALD MOTI
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

FRENCH CJ
GUMMOW J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 APRIL 2011, AT 10.34 AM

MR I.M. BARKER, QC: If the Court pleases, I appear with MR P.J. DOYLE for the applicant. (instructed by Herdlaw Solicitors)

MR J.V. AGIUS, SC: May it please the Court, I appear with my learned friend, MR M.C. CHOWDHURY, for the respondent. (instructed by Director of Public Prosecutions (Cth))

FRENCH CJ: Mr Barker, I think you have indicated to us that you are not pressing certain aspects of the application for leave and special leave questions.

MR BARKER: Yes, your Honour. There was argument in the Court of Appeal about whether the present applicant could raise matters which were found against him by the primary judge and it is referred to ‑ ‑ ‑

GUMMOW J: We have seen to that. Looking at the draft notice of appeal on page 61 it is ground 2(4), is it - ground 2(4), that is out?

MR BARKER: Yes. There is no argument about the matters in contention because there was no finding by the court below. One judge found for us, one judge against us and one did not find at all.

FRENCH CJ: What is ground 2(3)? That is a sort of a vibe‑type ground, or?

MR BARKER: Yes, it is dependent upon other grounds. We say that the totality of the treatment of the person points to injustice, that the other grounds are more specific.

FRENCH CJ: Yes, all right. I think you had effectively excluded 1(d) from your summary of argument under the definition of the “Special Leave Questions”?

MR BARKER: Yes.

FRENCH CJ: In the application for special leave you were not relying on 2(2), is that right?

MR BARKER: Yes.

FRENCH CJ: Yes, all right. Mr Agius, it might assist us to hear from you first as to why special leave should not be granted, having regard to the basis upon which Mr Barker is now proceeding.

MR AGIUS: Thank you, your Honours. Your Honours, in our submission, the law relating to the operation of the discretion to stay the prosecution is well settled and the Court of Appeal in this case followed an orthodox approach in reviewing the decision of the judge at first instance. It identified a number of errors in the first instance judge’s reasoning on the question of whether the payments made amounted to an abuse of process, such that the only remedy was to prevent the law from taking its course and putting the applicant on trial.

Those errors were a failure to distinguish between circumstances where the payments made induced the making of a complaint or the provision of a statement by…

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: [2011] HCATrans 96
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an application for special leave to appeal in *Moti v The Queen*. The applicant, Mr Moti, sought to challenge his conviction for offences related to the importation of a large quantity of heroin. The case concerned the admissibility of evidence obtained during a police investigation.

The central legal issue before the High Court was whether the evidence obtained from Mr Moti's mobile phone, including text messages and call logs, was lawfully obtained. Specifically, the Court considered whether the police had the necessary authority under the *Crimes Act 1914* (Cth) to seize and retain the phone and its contents, and whether the subsequent search and analysis of the phone's data constituted an unlawful search.

The High Court granted special leave to appeal on this issue. The Court indicated that it would consider the scope of police powers to seize and retain electronic devices under Commonwealth legislation, and the principles governing the admissibility of evidence derived from such devices, particularly where the search of the device may extend beyond the immediate purpose of seizure. The Court's reasoning would likely focus on the interpretation of relevant provisions of the *Crimes Act* and the application of established principles regarding unlawful searches and the exclusionary rule.

Orders