R v Abdaly; R v Hosseinishoja (No 2)

Case •

[2022] NSWSC 1510

•

02 November 2022

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: R v Abdaly; R v Hosseinishoja (No 2) [2022] NSWSC 1510
Hearing dates: 25-31 October, 1-2 November 2022
Date of orders: 2 November 2022
Decision date: 02 November 2022
Jurisdiction:Common Law - Criminal
Before: Hamill J
Decision:

(1) The evidence of criminal activities of other members of the group is not admissible.

(2) Implicit application for “Basha inquiry” refused.

(3) Evidence of association with Mr Sultani is admissible.

See [79]

Catchwords:

CRIMINAL LAW – evidence – admissibility – accused charged with murder – delay in identifying substantial issue – unsatisfactory – turgid recitation of delay – late service of material – failure of parties to communicate – waste of court time – evidence of association with criminal group – Rebels – relevance – probative value – relationship with group leader – such evidence relevant and admissible – evidence of leader’s control over group – fish burgers at McDonalds – where prosecution case accused obeyed directions of leader – evidence relevant and admissible to murder charge – evidence of criminal activities of other members of the group – where no evidence accused aware of crimes alleged – whether relevant – assessment of probative value – assessment of prejudice – capacity to impact on fact in issue – evidence not admissible

Legislation Cited:

Criminal Procedure Act 1986 (NSW), s 132

Evidence Act 1995 (NSW), ss 55, 97, 137

Cases Cited:

Elomar v R; Hasan v R; Cheikho v R; Cheiko v R; Jamal v R [2014] NSWCCA 303; (2014) 316 ALR 206

Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50

Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50

Qualteri v R [2006] NSWCCA 95; 171 A Crim R 463

R v AN [2000] NSWCCA 372; (2000) 117 A Crim R 176

R v Baines; R v Danishyar (Supreme Court (NSW), Fagan J, 10 December 2020, Fagan J)

R v Baines; R v Danishyar (Supreme Court (NSW), Fagan J, 10 December 2020, Fagan J)

R v Cornwell (2003) 57 NSWLR 82; [2003] NSWSC 97

R v Ngatikaura [2006] NSWCCA 161; (2006) 161 A Crim R 329

R v Quach [2002] NSWCCA 519; (2002) 137 A Crim R 345

R v Sukkar [2005] NSWCCA 54

Category:Procedural rulings
Parties: Rex (Plaintiff)
Sayed Anush Abdaly (Defendant)
Seyed Amirmohammad Hosseinishoja (Defendant)
Representation:

Counsel:
D Patch (Rex)
M Cunneen SC (Abdaly)
G Brady SC with P Lange and M Ayache (Hosseinishoja)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Rex)
Tohi Lawyers (Abdaly)
One Group Legal (Hosseinishoja)
File Number(s): 2020/306132; 2020/306616
Publication restriction:

Except for publication on legal websites, there is an interim non-publication order over the names of the two accused and Abuzar Sultani.

Redactions have been made in accordance with non-publication orders which apply in relation to the identify of witnesses.

Judgment

  1. Each of the accused is charged with the murder of Nikola Srbin on 5 June 2013.

  2. It is the prosecution case, and it appears not to be disputed, that Mr Srbin was bashed to death by a large group of men because of a falling out he had with a man I will call “Witness A” over some drug deals. It is alleged that Witness A owed a debt to Mr Srbin (and others with whom the latter was associated) and that on 15-16 May 2013 Mr Srbin’s group took extreme measures to enforce the debt. This included committing a serious assault on Witness A, holding a knife to his eye, and threatening further reprisals including a threat to “torture” him “for hours and hours and hours” if he did not repay the money. Witness A told an associate, Abuzar Sultani, about his difficulties and it is alleged that Mr Sultani organised a group of men to carry out the bashing of the deceased on 16 May 2013, who then died on 5 June 2013. The prosecution case is that both accused men were members of that group.

  3. This judgment relates to objections made by each of the accused to evidence the Prosecutor seeks to adduce concerning the alleged “close association” between the accused and Mr Sultani. That close association is alleged to be a “criminal association” and arose through the membership of each of the accused in a group, or collection of groups, referred to as the Burwood Chapter of the Rebels motorcycle club (the Burwood Rebels) and/or the “Sultani Criminal Group”.

  4. [A draft and unrevised copy of this judgment was provided to the parties on 2 November 2022 (1) so that all remaining pre-trial disputes, some of which turned on the outcome of this issue, could be resolved and (2) to inform the submissions of the parties on those disputes, and (3) to allow the parties to confirm (or otherwise) that all of individual piece of evidence to which objection was taken was subject to a ruling.]

  5. It is the prosecution case that once he had received the complaint from Witness A, Mr Sultani summoned a group of men to the club house of the Burwood Rebels and that the members of the group entered a joint criminal enterprise to murder Mr Srbin. Alternatively, the prosecution case is that the members of the group entered a joint criminal enterprise to commit some less serious crime but that it was within their contemplation that murder would be committed. The legal niceties of these alternative cases need not be considered further here. The case of both accused men currently on trial is that they were not part of the group and did not share the common purpose alleged by the prosecution.

  6. The prosecution will rely on the evidence of Witness A who was a member of the group. He pleaded guilty to manslaughter and has agreed to give evidence against each of the accused. He will say that they were members of the group that bashed and killed Mr Srbin. Other witnesses will give evidence of each of the accused’s membership and involvement in the Burwood Rebels as well as the relationship each had with Mr Sultani. It is unnecessary to refer to other evidence upon which the prosecution will rely to establish its case. The other evidence largely goes to support the direct evidence of Witness A.

A turgid recitation of how this issue came to light and was eventually refined

  1. The circumstances in which this potentially important issue arose for consideration is, with respect to the parties, unsatisfactory. The case was listed before the criminal list Judge on 3 and 10 September 2021 and again on 1 October 2021. On the last of those occasions, the matter was listed for trial and scheduled to commence on 31 October 2022. The matter was listed before me on 26 August 2022 and 14 September 2022. The objective of those latter listings was to ascertain whether there were any pre-trial issues to be determined. At that stage, Mr Sultani was included on the indictment charging each of the three men with the murder. There was a second count against each accused alleging that they participated in a criminal group “on 16 May 2013” (that is, on the day of the bashing of the deceased). Each counsel indicated that there would be an application to sever the indictment and the Prosecutor indicated that consideration was being given to severing that second count or, perhaps, to discontinuing the proceedings on that count. In the weeks that followed the Prosecutor removed the “criminal group” charge from the indictment. The parties also indicated that the accused may, and then would, make an application for a trial by judge alone pursuant to s 132 of the Criminal Procedure Act 1986 (NSW). While there was a suggestion that the Director of Public Prosecutions (the DPP or the Director) may consent to the application, the Court and parties were later advised that the application was opposed. Some other very minor issues were identified but there was no suggestion that a substantial objection was to be taken to a reasonably large body of evidence concerning the criminal activities of, and association between, Mr Sultani, each of the accused and the groups to which they allegedly belonged at the relevant time. In fairness to those representing the accused, I understand that some of the evidence concerning the issue had still to be disclosed by the prosecution.

  2. To suit the convenience of the legal representatives, and because a date suitable to all counsel could not be found, the matter was listed in the week before the trial. It would obviously have been preferable to list the pre-trial earlier. Two days were set aside (25 and 26 October 2022) although the parties were advised to keep the balance of the week free in case other issues arose or the arguments took longer than expected. When the matter came on for pre-trial hearing on 25 October 2022, it emerged that Mr Sultani and the Prosecutor were in discussions as to his plea. On 26 October 2022, Mr Sultani entered a plea of guilty. Meanwhile, other issues were being canvassed including the application for a Judge alone trial. It was only during the arguments over that issue that I learned that a large body of evidence or “disclosure material” had only recently been served and that there was a significant issue of admissibility upon which, it seemed, the parties had not communicated in any meaningful way.

  3. In written submissions produced to the Court on 31 October 2022 (MFI 17), Mr Brady SC, who is briefed to appear for Mr Hosseinishoja but is unfortunately stuck in a trial in another court, set out a chronology which included the following (all dates are in 2022 and I am using my own words not those of Senior Counsel):

  • 26 Aug.   At the first pre-trial mention, the Court was advised of the application to sever the indictment.

  • 14 Sept.    At the second pre-trial mention, the Court was advised that the Prosecutor was still considering the position in relation to the criminal group charge (count 2).

  • 26 Sept.   The Prosecutor notified the Court (and the parties) that the Director had directed no further proceedings in relation to count 2. However, the Director advised that the evidence relevant to that charge remained “admissible (as context/relationship evidence) in the trial for the murder charge”.

  • 12 Oct.   Mr Hosseinishoja’s solicitor wrote to the DPP requesting that it identify “evidence relevant to those criminal group charges” that is intended to be relied on at the trial. The objective of this request was said to be to determine which evidence might be subject to objection.

  • 13 Oct.   The Director responded to this request as follows:

“The evidence upon which the Crown relies in this matter is contained in the brief, which has been served on you.

In addition to that, the Crown has provided a Crown Case Statement which informs the parties, and the court, as to how the crown puts its case.

If there is any proposed evidence to which you take objection, please notify the Crown and the Court as a matter of urgency, so that it can be dealt with before the commencement of the trial.

[Senior Counsel asserted, and it was not contested, that as at this date the only evidence in the brief relating to the criminal group was in the statement of Witness A and a witness known as RS 1546093.]

  • 18 Oct.   The DPP served 4834 “pages of disclosure” including material relating to Witness RS 1521670 and RS 1777888 which the Prosecutor indicated would be relied on at the trial.

  • 19 Oct.   A further request was made for details of the evidence the prosecution proposed to lead.

  • 28 Oct.   At 8:32am the DPP wrote to the other parties setting out a list of pieces of evidence upon which the prosecution proposed to rely to establish “the involvement of each of the accused Abdaly and Hosseinishoja in the criminal group controlled by Abuzar Sultani.”

  1. The email sent at 8:32am on 28 October 2022 became Ex VD-3 on the pre-trial hearing later that day. The details of the evidence that the prosecution proposed to adduce (or not adduce) was articulated as follows:

“1. The Crown does not propose to adduce any evidence of any other specific crimes allegedly committed by either of the accused.

2. The Crown will adduce evidence from RS 093 as set out in his statement dated 15 July 2016 up to and including paragraph 22.

3. The evidence in the case will include copies of the photographs of the Burwood clubhouse referred to in paragraph 20 (including under construction), including (but not only) photographs of members of the criminal group.

4. The evidence in the case will include copies of the photographs of the participants in the national run referred to in paragraph 19.

5. The evidence will also include the identification evidence referred to in the statement of RS 093 dated 28 February 2017 and the statement of Detective Sgt Hunt of the same date.

6. Thereafter, the Crown proposes to adduce evidence from RS 093, RS 670 and RS 1777888 of a general nature to the effect that the group, including the accused as close associates of Sultani, continue to operate until November 2016, which operations included dealing with drugs, money, vehicles and firearms.

7. The Crown intends to adduce evidence from RS 670 in accordance with his statement dated 21 September 2016 up to an including paragraph 7. [An email sent a few minutes later clarified that the prosecution pressed up to paragraph 10 of this statement.]

8. The Crown also intends to adduce evidence from RS 670 in accordance with his statement dated 26 October 2016 up to and including paragraph 29 – but not including paragraph 8, the redacted part of paragraph 23, paragraph 24 (which has been entirely redacted) or the redacted part of paragraph 28.

9. The Crown also intends to adduce evidence from RS 670 in accordance with his statement dated 26 October 2016 from paragraph 63 to paragraph 68 (about safe houses).

10. The Crown also intends to adduce evidence from RS 670 in accordance with his statement dated 26 October 2016 from paragraph 74 to paragraph 75 (money).

11. The Crown also intends to adduce evidence from RS 670 in accordance with his statement dated 26 October 2016 from paragraph 76 to paragraph 81.

12. The Crown also intends to adduce evidence from RS 670 in accordance with his statement dated 26 October 2016 in paragraph 85 (Anoush) and paragraph 92 (Moey) – but not the reference to him being “locked up for ages for an attempted murder”.

13. The Crown also intends to adduce evidence from RS 670 in accordance with his statement dated 26 October 2016 in paragraph 96 (the use of encrypted BlackBerry devices).

14. The Crown also intends to adduce evidence from RS 670 in accordance with his statement dated 12 July 2017 in paragraphs 8 (identification and role of Abdaly) and 14 (identification and role of Hosseinishoja).

15. The Crown also intends to adduce evidence of the identification of Hosseinishoja by RS 1777888 in accordance with his statement dated 25 January 2019.”

  1. The statements referred to in the email were tendered later that day and became Ex VD-4. It was only at that point, which was the fourth day of the pre-trial hearing (the Court did not sit on Thursday 27 October 2022), and the day before the trial proper was originally scheduled to commence, that I became aware of the evidence the prosecution sought to adduce on this issue and that most of it appeared to be subject to objection by both accused men.

  2. The following Monday, 31 October 2022, Mr Brady SC provided the Court with the submissions that became MFI 17. Paragraph 17 of that document set out the position taken by Mr Hosseinishoja:

“The Accused responds to evidence of the Criminal Group, using the Crown’s numbering as follows:

1. Noted;

2. Objection to paragraphs 16 to 18 inclusive and the last sentence of paragraph 22;

3. No objection;

4. No objection;

5. No objection;

6. Objection to this evidence. The defence understands it is a summary the Crown’s position which is then more fully set out in the following paragraphs;

7. Objection;

8. Objection to paragraphs 9, 10 (only the reference to why Lindsay isn’t with them), 11 (only the reference to guns), 12, 13-29;

9. Objection;

10. Objection;

11. Objection;

12. No objection;

13. Objection;

14. No objection save for the comment “He got done for bashing and killing a kid at Burwood a few years ago”.

15. No objection to the identification. Otherwise there is objection to evidence “of a general nature” from RS888.”

  1. There were some oral submissions on the issue on Monday 31 October 2022. The Prosecutor provided a list of cases that he had found during his research relating to the issue. [1] He indicated that he would prepare written submission overnight and this aspect of the pre-trial hearing was stood over for further submissions on Tuesday 1 November (that is, the re-scheduled first day of the trial).

    1. As read onto the record, R v Quach [2002] NSWCCA 519 from [15], R v Cornwell [2003] NSWSC 97 at [37], Elomar v R [2014] NSWCCA 303 at 351, Qualteri v R [2006] NSWCCA 95 at [74], [111], R v AN [2000] NSWCCA 372 at [47], R v Sukkar [2005] NSWCCA 54 at [64].

  2. At 3:51pm the Prosecutor emailed my Associate and the parties indicating that (i) the initial indication of the evidence pressed by the prosecution had changed and now “the Crown does not press the entirety of paragraph 8 of the statement of RS 670 dated 26 October 2016” but that (ii) “on reflection, the Crown does press the first sentence of that paragraph, namely the words “Although (we) were in the Rebels we were kind of different to other chapters. We were our own crew.” (italics in original) [2]

    2. This email was marked in chambers as MFI 21.

  3. Then, at 5.58pm on Monday, the Prosecutor wrote a further email to my Associate indicating that the parties had engaged – and I would say, with deliberate and considerable emphasis, finally – in “a helpful discussion” and that “the matters in dispute between the parties have now been clearly identified, and are much narrower than they were when Mr Brady wrote his useful written submissions”. [3]

    3. This email was marked in chambers as MFI 22.

  4. By email received at 9:57am the following morning (Tuesday 1 November) the Prosecutor provided written submissions (MFI 18) as follows:

“3. The evidence that remains in dispute is:

The statement of RS 093 signed 15 July 2016

4. Paragraph 16: The Crown points out that this paragraph is only about an event in 2013. It clearly relates to the activities of Sultani himself, and some, at least, of his associates. It illustrates the nature of some of those activities. As the temporal connection between the evidence in this paragraph and the events the subject of the charge is very close, the Crown submits that this evidence is admissible.

5. Paragraph 17: The Crown points out that this paragraph has the same timeframe (‘Around the same time as this’) and makes the same submissions as above.

6. Paragraph 18: The Crown points out that this proposed evidence also has the same timeframe and makes the same submissions as above. Furthermore, the subject matter of this paragraph is about when and how ‘[RS 658] and AJ’ were given their ‘Elite’ patches by the club, in 2013 - which does not seem to be a controversial subject matter.

7. The statement of RS 670 signed 28 October 2016

8. Paragraph 8: Contrary to the emails of 28 October, the Crown does press the first line (but only that line) of paragraph 8.

9. Paragraph 9: The evidence in this paragraph is not date specific. Accordingly, the Crown does not press this paragraph in its current form. However, the Crown intends to conference witness RS 670 and ascertain whether (as seems likely, given the phraseology used at the beginning of the paragraph) this relates, initially, to 2013. If that is so, then the Crown would adduce that evidence.

This can be dealt with as a short preliminary matter before the evidence of RS 670, and the Crown will not open on this evidence.

10. Paragraphs 19 to 22: Insofar as these paragraphs refer to activities in 2013, the Crown presses the evidence.

11. Paragraph 23: This paragraph is only about an event in 2013. The Crown presses this evidence. 

12. The proposed evidence of a general nature referred to in paragraph 6 of the emails from the DPP solicitor dated 28 October 2022.

13. The Crown notes the objection.

The Crown proposes that, with leave, it will lead evidence from the relevant witnesses (that being the safe and sensible way to proceed) to the effect that Abdaly and Hosseinishoja, and the other persons identified as close associates of Sultani, ‘remained close associates of Abuzar Sultani until November 2016.’ The references to ‘the group’ and ‘operations which included dealing with drugs money vehicles and firearms’ will not be adduced as part of this ‘evidence of a general nature’.”

  1. Under force of argument, and when asked about the evidence concerning what “the other chapters were doing” (of which there is none), the Prosecutor did not press the first two sentences of paragraph 8 of the statement of “RS 670”. [4]

    4. Transcript, 1 November 2022, p 136(20-35).

  2. The Prosecutor indicated he did not press paragraph 9 of the same statement, at least in its current form but that there might be “a little Basha inquiry about it”. [5]

    5. Ibid, p 136(40-45).

  3. As to paragraph 10 of that statement I was told:

“PATCH: … So para 10, in that same statement, the first three lines up to and including the words ‘Lindsay is not with them anymore’ are not objected to, and the Crown will adduce that evidence. The words immediately following the word ‘anymore,’ going over to the next page, ‘because he fucked up and owed the boys money so they caved his head in’ – they’re objected to. The Crown accepts that objection and will not adduce that evidence. Then the remaining two sentences are not objected to, and the Crown will adduce that evidence.

HIS HONOUR: This is the bit about him being a ‘big white Aboriginal boy from Penrith’?

PATCH: Not objected to, your Honour”. [6]

6. Ibid, p 137(10-22).

  1. The Prosecutor said he did not press the following parts of paragraph 11 of that statement: “like, source a gun” and “guns and”. As I understand it, the parties are agreed as to which parts of paragraph 11 can be admitted. [7]

    7. Ibid, p 137(25-45).

  2. As to paragraphs 19-22, those paragraphs were pressed but “only in so far as these paragraphs refer to activities in 2013” and, again, it was suggested a “short Basha inquiry” may be required. [8]

    8. Ibid, pp 138-139.

  3. The Prosecutor indicated that paragraphs “63-68 under the heading Safe Houses” were no longer pressed. [9] Nor were paragraphs 74-75. [10] As will be seen, the position in relation to paragraphs 76-77 was a little opaque. [11] Paragraphs 78-81 were not pressed.

    9. Ibid, p 139(42-45).

    10. Ibid, p 139(46).

    11. Ibid, pp 139-140.

  4. The Prosecutor also indicated:

“Paragraph 85 under the heading ‘Anouche’ is not objected to, and the Crown will adduce that evidence.

HIS HONOUR: Yes.

PATCH: Paragraph 92, under the heading ‘Moey’ – ‘Anouche’ is said to be Abdaly and ‘Moey’ is said to be Hosseinishoja, just to be clear. The heading ‘Moey,’ the Crown presses that paragraph with the exception of the last sentence, ‘He was locked up for ages for an attempted murder; he got out and then was doing his own thing.’ That is not pressed, that last sentence. But the rest is not objected to and the Crown will adduce the evidence.” [12]

12. Ibid, p 140.

  1. Following the luncheon adjournment, I was told there was further agreement between the parties, concerning paragraph 18 of the statement of “RS 093”. This paragraph was originally pressed in full (Ex VD-3, item 2) and objected to (MFI 17, p 3 of 7). I was told the parties were agreed that the Prosecutor could lead the first line, namely:

“Also around this same time [RS 658] and AJ were given their ‘elite’ patches by the club.”

  1. Mr Ayache, the solicitor for Mr Hosseinishoja, indicated his client’s position having consulted with Mr Brady SC over the luncheon adjournment. Relevantly he said:

“Insofar as paragraphs 12 and 13 of the written submissions are concerned, as I understand, the prosecution's position is purely intending to lead general evidence of a close association. Mr Brady simply indicated that if that is the extent of it, there is no issue. If it is a close association in terms of a criminal association, that should be made plain, because it will have a bearing or inform your Honour when your Honour is considering the judge alone application. So if it is merely a close association, using those words, there is no issue.” [13]

13. Ibid, p 152.

  1. The purpose of that turgid recitation of the background to this issue is threefold.

  2. First, it is necessary to emphasise the importance of the parties communicating with each other about pre-trial admissibility issues. A considerable amount of court time has been wasted and, once the parties communicated, the issues were narrowed to a considerable degree. The issue ought not to have emerged, almost by accident, during oral argument about whether it was in the interests of justice to make an order for a judge alone trial. The Court should have been advised of this issue some time ago so that time could be allocated resolving the issue. Further, the parties ought to have discussed the matter and communicated their respective positions rather than leave it until the pressure of the debate compelled them to do so. In their defence, the lawyers freely acknowledged this.

  3. Secondly, a recitation of the history will allow me in due course to set out the controversial parts of the evidence with as much clarity and precision as I can.

  4. Thirdly, the recitation demonstrates the confusion surrounding the issue and explains why it will be necessary to provide a draft to the parties and allow them to satisfy themselves that all relevant items of evidence have been ruled upon or are subject to agreement.

  5. Before I return to the individual items of evidence, I will explain in general terms the position of the parties and the principles that are relevant to the conclusions I have reached concerning the individual sentences and paragraphs that remain subject of objections.

A consideration of the evidence, its relevance, and the applicable legal principles generally

  1. It cannot be, and (as I follow the arguments) is not, disputed that the closeness of the association between the accused and Mr Sultani in or around the middle of 2013 is a relevant and potentially important issue in the trial. Further, the nature of that association may rationally impact on an assessment of a fact in issue. This includes the fact that each was a member of the Burwood Rebels, that Mr Sultani became the leader (President) of that group and that the two accused men came to hold positions of responsibility in that group. Mr Hosseinishoja was the “Sergeant at Arms” and Mr Abdaly was the Secretary who collected the membership fees. There is no dispute that evidence of those matters will be admitted in the trial and that the Prosecutor can elicit the evidence without objection.

  2. It is also correct, as far as it goes, that if the men were close associates in 2014, 2015 and 2016, they were more likely to have been close associates in the middle of 2013, when the murder was committed. This may be controversial as between the parties but I accept the Prosecutor’s submission on the issue.

  3. There is also potential relevance to the fact that the nature of the association between the men included being involved in illegal activities of one kind or another. However, the degree of relevance (or probative value) of that evidence must be considered against its potential to create unfair prejudice: s 137 Evidence Act 1995 (NSW). The Prosecutor does not rely on the evidence as “tendency” evidence under s 97 of the Evidence Act.

  4. These matters are relevant and probative because they can be used by the tribunal of fact in assessing the probability that the accused men answered Mr Sultani’s call to gather at the Burwood Club House, obtain weapons (there is reference to a bag of guns being obtained even though these were not used in the killing), and then travel to the scene of the crime where Mr Srbin was beaten to death.

  5. As the Prosecutor submitted, if they were members of a group of which Mr Sultani was the leader, and if the evidence is that he directed the group and gave orders which were generally followed, it is more likely that the accused men followed such directions on 16 May 2013. Similarly, those relationships make it more likely that they joined in a criminal enterprise to commit the assault on Mr Srbin.

  6. That such evidence is capable of being used in this way is established by the decision of the High Court in Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50. There are many cases to similar effect, some of which were referred to by the Prosecutor (and now set out in footnote 1 above). Admissibility will depend on the details of the evidence and the issues in the trial. As will be seen, most of the evidence in this case is not of a similar kind to that which was held to be admissible in Harriman v The Queen.

  7. The cases to which reference was made are cases where the accused person was involved in the other criminal conduct or was at least aware of it. The cases do not establish that criminal conduct engaged in by other members of a “criminal group”, of which the accused person may or may not be aware, can be used to establish the criminal association between the group’s members, or the nature of the relationships between the members of the group. That is the situation with a good deal of the evidence the admissibility of which remains in dispute between the parties.

  8. To take a stark example, the prosecution presses for the admissibility of the following evidence it is anticipated will be given by the witness known as RS 1521670:

“23. XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXX. By cleaned I knew he meant getting the barrels changed over because they had been used. I am also aware they acid wash the barrels and put the rifling back in them.”

  1. I was told that there is no evidence that either Mr Abdaly or Mr Hosseinishoja was aware of this incident. I am not persuaded that the incident could rationally inform the tribunal of fact’s conclusion or understanding of the relationship between Mr Sultani and either of the two accused men. It is even less capable of rationally affecting (indirectly) the assessment of the relevant fact in issue, that is whether the accused agreed to follow Mr Sultani’s direction to participate in the criminal enterprise that resulted in Mr Srbin’s death.

  2. The cases referred to in support of the admission of the evidence all involved evidence of associations or relationships which shed light on the charged offending:

  • In Quach v R [2002] NSWCCA 519; 137 A Crim R 345, the evidence related to conversations between the appellant and another drug dealer regarding previous drug deals between the same two men. [14]

    14. Quach v R at [15]-[16], [35], [43] (Spigelman CJ).

  • Sukkar v R [2005] NSWCCA 54 dealt with the admissibility of previous conversations between the appellant and other drug dealers, in which the speakers used language such as “we”, “us”, “this time” and “next time”. [15] The conversations related to, and established, the association between the offenders in connection with the distribution of drugs.

  • In R v Cornwell (2003) 57 NSWLR 82; [2003] NSWSC 97, the question of admissibility was directed to recorded conversations demonstrating specific prior criminal conduct of the defendant. [16]

  • In Elomar v R; Hasan v R; Cheikho v R; Cheiko v R; Jamal v R [2014] NSWCCA 303; (2014) 316 ALR 206, the impugned evidence related to the previous conduct of one of the co-accused, which was sought to be tendered against all of the accused. It was held the evidence was relevant to that accused’s state of mind. [17]

  • In Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463, the issue on appeal related to the directions provided to the jury as to the proper use of evidence of prior uncharged sexual acts allegedly carried out by the appellant on the same victim. [18]

  • Similarly, AN v R [2000] NSWCCA 372; (2000) 117 A Crim R 176 concerned earlier uncharged acts involving the appellant and the alleged victim. [19]

    15. Sukkar v R at [47]-[57], [64]-[66] (Wood CJ at CL).

    16. R v Cornwell at [4]-[9], [36], [39], [46].

    17. Elomar v R; Hasan v R; Cheikho v R; Cheiko v R; Jamal v R at [325]-[333], [351], [368]-[372].

    18. Qualtieri v R at [63]-[66], [80], [82]-[92] (McClellan CJ at CL).

    19. AN v R at [26]-[34], [47] (Kirby J).

  1. None of those cases support the proposition that allegations of uncharged criminal acts against other, mostly unspecified, members of a group to which an accused person belongs is admissible on the basis asserted by the Prosecutor.

  2. Mr Ayache, appearing for Mr Hosseinishoja, referred to the case of R v Ngatikaura [2006] NSWCCA 161; (2006) 161 A Crim R 329. That case related to the admissibility of evidence of prior drug offending to which the respondent (accused) pleaded guilty. [20] Again, as with the other cases referred to, the fact involved the accused herself committing a similar or relevant offence. The trial Judge excluded the evidence. The Court allowed an appeal by the prosecution against that decision. Beazley JA (as her Excellency then was) held the evidence was admissible to rebut an anticipated defence case that the drugs located in the respondent’s house were owned by her husband. This was a similar reasoning process to that adopted by the High Court in Harriman v The Queen. [21] The majority in R v Ngatikaura (Simpson and Rothman JJ), while agreeing with the orders proposed by Beazley JA, took the view that the evidence was tendency evidence and remitted the matter to the District Court.

    20. See R v Ngatikaura at [57], [68] (Simpson J) and [86]-[87] (Rothman J).

    21. Harriman v The Queen at 601-602 (Dawson J), 614-615 (Gaudron J) and 634 (McHugh J).

  3. The authorities to which I referred in paragraph [40] were provided by way of a list read onto the record. There was no analysis as to how those cases supported the admissibility of the evidence sought to be led in this case. When such analysis is undertaken, it is clear they do not do so.

  4. The basis upon which Prosecutor’s position on the admissibility of the evidence was stated several times in the course. For example, the basis of the tender and the use to which the evidence was put was explained as follows: [22]

    22. Tcpt, 1 November 2022, pp 141-142.

“PATCH: The flavour of it is that they were - there was a group of people. They were friends of Sultani. They included Hosseinishoja and Abdaly. Friends and associates of Sultani is a better expression.

HIS HONOUR: Yes.

PATCH: And they were close associates. They met on a regular basis. They were setting up a clubhouse in 2013. We have photographs of both of the accused at the clubhouse. Both of them were either members or associates of the Rebels during the time they were setting up that clubhouse, because it was a Rebels clubhouse. We have pictures with Rebel symbols on the wall at that time, from Abdaly’s phone, which were seized in 2016, with metadata that shows the dates of the photographs, as does the Rebels run. Same source. Same sort of metadata.

So we have evidence of a close association, and a close association including involvement, to some degree at least, with the Rebels. We have evidence of Sultani’s membership of the Rebels, and how that progressed in 2013 and 2014 as well.

We have some evidence of some of the activities of Sultani associated with - some of the criminal activities of Sultani, and the inference I would put to the jury is that even though there might not be any evidence that there is not any evidence; I won’t say ‘might not.’ Is not any evidence of the direct personal involvement of either the accused in those things, that they were aware of what was going on in a general sense, namely, that there was--

HIS HONOUR: Sorry, just to interrupt you - and I beg your pardon. This is the evidence that the parties agree you can adduce?

PATCH: Yes. Well, the inference is something I’d be asking the jury.

HIS HONOUR: Yes, sure.

PATCH: That inference is not agreed.”

  1. Later the following exchange occurred: [23]

    23. Ibid, p 146.

“HIS HONOUR: But how does that inform who went to the house - went to the scene of the crime?

PATCH: Because it makes it more likely that they - I will just take a step back. The evidence from witness A will be that he contacted Sultani because he was concerned that--

HIS HONOUR: [He had] just had someone threaten to chop his eye out.

PATCH: That's right. That's right. What was going to happen to him from the Srbin group, father and son, and Moshref as well.

So he contacts Sultani to get help. They meet and they drive to the Burwood clubhouse, under construction clubhouse. On the way Sultani makes a number of phone calls and then a group of men assemble at the clubhouse as a result, obviously enough, of the summonses made by Sultani. It is the same group of men, essentially - there may have been one or two more at the clubhouse that actually went to Redfern. It is a little bit vague. But the same group of men essentially went to Redfern with Sultani.

So, if there is a close association with Sultani, it makes it more likely - so, Abdaly and Hosseinishoja had a close association with Sultani - it makes it more likely that he would ring them and summons them to Burwood and more likely that they would obey the summons and more likely that they were part of the group that went to Redfern at his direction.

HIS HONOUR: If they had a close association with him in 2015 and 2016? That makes it more likely that they did that in 2013?

PATCH: It makes it more likely they had a close association in 2013 given the evidence of the continuum.”

  1. Earlier in the pre-trial hearing the Prosecutor made reference to this body of evidence:

“PATCH: … And then there is the evidence that will establish that both these men, Anush Abdaly and Hosseinishoja were close associates of Sultani in 2013, and then thereafter until November 2016 when the series of arrests broke up the activities of the group and the Crown proposes not to lead any evidence of specific crimes allegedly committed by Abdaly or Hosseinishoja, acknowledging that would be overall prejudicial but of the overall nature of the criminal group, yes, that the group dealt was a criminal group dealing with guns, sorry, firearms, drugs, cars and engaged in crimes of violence in the general sense.

…

PATCH: Your Honour, the Crown case is and this is in the Crown case statement, that Abdaly and this is in the Crown case statement, that the accused Abdaly and the accused Hosseinishoja were in a close relationship with Mr Abuzar Sultani. They were members of the inner circle of the criminal group. The criminal group was one controlled and directed by him. This was the nature of the relationship or association in 2013. The Crown seeks ‑ and that is an issue, I would think, in the trial.

HIS HONOUR: You think it is an issue in the trial?

PATCH: I gather it is an issue in the trial because the closer the relationship in 2013, the more likely it is that they were members of the group that Sultani summoned to the club house to assemble to go and assault the deceased.

HIS HONOUR: Quite, but that does not answer the question I am asking, which is the reasoning process that goes from they sold some guns and rebirthed some cars in 2014 or 15, therefore they were more likely to be at this flat in Redfern and were part of the bashing.

PATCH: The way the Crown puts that is that they were close associates and members of the inner circle in 2014, 2015 and 2016 until the group was disbanded by the police in November 2016. If they were close associates say in 2014, it makes it more likely that they were close associates in 2013. The same reasoning with perhaps diminishing force as one goes through time but the same reasoning applies in 2015 and in respect of 2016. That is how the Crown puts it, your Honour.

HIS HONOUR: How does the fact that another member of the group or the group committed crimes inform that question, that primary question of the closeness of the association.

PATCH: It wasn’t just a close association in terms and I don’t want to it be flippant but in terms of going down to the pub.

HIS HONOUR: Close criminal associations, a close --

PATCH: Correct and the fact that it was not merely a close association but a close criminal association is what the Crown would seek to prove. The close criminal association is established by proof of the nature of the activities of the gang over the years.” [24]

24. Tcpt, 28 October 2022, pp 60(27-35), 85(49)-86(38).

  1. The Prosecutor provided an unreported judgment of Fagan J in a trial that also involved Mr Sultani and two other members of the Burwood Rebels: R v Baines; R v Danishyar (Supreme Court (NSW), Fagan J, 10 December 2020, unrep). Fagan J allowed evidence, over objection, of the same kind of which the present accused men do not object. That is, evidence was allowed of the accused’s membership of the Burwood Rebels and of their “close and sustained relationship” with Mr Sultani. His Honour rejected a submission that the mere association with the “Rebels OMCG” was sufficiently prejudicial to warrant exclusion under s 137. No such submission was made in this case. This judgment should not be taken as disallowing such evidence which I understand to be led without objection.

  2. However, the judgment of Fagan J says nothing of the admissibility of other criminal acts committed by other members of the Burwood Rebels.

  3. The position of each of the accused was that the evidence was either not relevant or, if it was, its probative value was outweighed by the danger of unfair prejudice.

  4. In relation to almost all the evidence, I accept the submissions of the two accused men.

Rulings on the impugned evidence

  1. I now turn to consider the individual parts of the evidence that remained in dispute.

Objection 1:

  1. The first remaining objection was to the following evidence from the statement of RS 1546093 dated 15 July 2016:

“Firearms supplied by Ab’s

16. XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XX

17. XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XX

18. Also around this same time, [RS658] and AJ were given their ‘Elite’ patches by the club. These are usually only given out after 20 years service or when you get a presidency. [RS658] and AJ got theirs well before then so they must have done something significant on behalf of the club. XXXXX XXXXX XXXXX X.

…

22. … They also use the office as a pick up and drop off point for drugs, money and guns.” [25]

25. The struck-out parts are not pressed by the Prosecutor.

  1. This evidence is not relevant. If it has some relevance, its probative value is slight and its capacity to result in unfair prejudice is substantial. There is no evidence to connect the accused with this activity and it does not inform the relationship between Mr Sultani and the two accused men.

  2. I reject this part of the evidence of RS 1546093.

Objection 2

  1. The second objection relates to “evidence from RS 093, RS 670 and RS 1777888 of a general nature to the effect that the group, including the accused as close associates of Sultani, continue[d] to operate until November 2016, which operations included dealing with drugs, money, vehicles and firearms” (emphasis in original): see item 6 of Ex VD-3.

  2. I am unable to rule on evidence couched in such vague and unclear terms. In such terms it is not admissible.

  3. Assuming such evidence has an indirect capacity to impact on a rational assessment of a fact in issue (Evidence Act, s 55) it has a far greater potential to create unfair prejudice (s 137). As the accused submitted, grappling with such generality in cross-examination is likely to lead to incurable prejudice to their right to a fair trial by inviting the witnesses to provide evidence of some form of criminality, entirely unrelated to the current charge and allegations. Further, evidence provided in that form will invite a form a tendency reasoning to the effect of:

  • the accused is a member of a group that commits a range of criminal offences;

  • they are therefore the kind of person who is more likely to have committed this criminal offence.

  1. The evidence is not relevant and, if it is relevant, it is so potentially prejudicial that it must be excluded under s 137.

Objection 3

  1. The third issue that I understand remains to be determined is the admissibly of paragraph 9 of the statement of RS 1521670 signed 28 October 2016. The Prosecutor said he did not press this evidence in its current form, but that he proposed to confer with the witness or seek to conduct a Basha inquiry. Paragraph 9 is as follows:

“9. XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XX The money they owed would normally be for drugs or if they had done jobs for people and hadn’t been paid.”

  1. There is no evidence that either accused was aware of this activity. Even if the Prosecutor can place it in the time frame of around 2013, any probative value it has (that is, to inform the nature of the activities undertaken by the group in 2013), is outweighed by the danger of unfair prejudice. The evidence comprises non-specific admissions of “stand over” activities by the witness and their involvement with Mr Sultani in the supply of guns. It is highly prejudicial and does not inform the relationship between Mr Sultani and the accused men or the accused’s knowledge and involvement of the criminal activities of the group.

  2. I would exclude this evidence under s 137 of the Evidence Act.

  3. I refuse the implicit application to hold a Basha inquiry to explore the timeframe in which the witness thinks, six years after making his statement, that these things occurred.

Objection 4

  1. As I understand it, there remains a dispute as to the admissibility of the evidence in paragraphs 19-23 of the statement of witness RS 1521670 signed 28 October 2016:

“Vehicles

19. XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XX

20. XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XX

21. XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XX

22. XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XX

Firearms

23. XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX X By cleaned I knew he meant getting the barrels changed over because they had been used. I am also aware they acid wash the barrels and put the rifling back in them.”

  1. The Prosecutor indicated that this evidence was pressed insofar as it relates to events in 2013 and submitted that paragraph 23 related, on its face, to that time period and was admissible.

  2. There is no evidence (as far as I can tell) that connects the two accused men with the alleged criminality that is outlined except for the fact (which I accept can otherwise be established) that they were close associates with Mr Sultani. The jury is likely to speculate that one or other of the accused was one of “the boys” referred to in paragraphs 19, 20 and 22. To allow such speculation would amount to unfair prejudice that could not be cured by direction. Other parts of the evidence are either hearsay or based on rumour (for example, “I was not the sole provider for the boys as I know they were getting them off other people” and “about one month ago I heard from one of the boys that the long wheel base van had been grabbed by the Police”).

  3. Even assuming parts of this evidence is relevant in establishing the criminal activities undertaken by the group, and that it qualifies as an exception to the hearsay rule, none of paragraphs 19-23 is admissible on the proper application of s 137 of the Evidence Act.

Objection 5

  1. The fifth outstanding issue concerns evidence from paragraphs 76-81 of the statement of witness RS 1521670 dated 26 October 2016:

“Abuzar Sultani and Associates

76. XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XX

77. Abs moved from Top Ryde to an apartment in Sydney Olympic Park in Australia Avenue on the 28th floor, apartment 2803 in building number one. I know Abs lives there with one of the boys, a tall skinny Arab, named Musti, he is the same boy lived with Abs in Ryde. This bloke used to drive a red Mazda 3 and now drives a grey C200 Merc.

78. Abs is 27 years old and an Afghan, he is studying business at University in Macquarie University. Abs looks like an office worker, he is about five foot seven or eight, skinny build, always clean shaven with short black hair.

79. Abs has some particular habits. Abs is a clean freak and cleans up all the time. His apartment is spot on. Abs always gives you hand sanitiser, when you use to the toilet you have to sit down to piss as he doesn’t want any splatter. All the boys sit down to go to the toilet because they know Abs would be pissed off. Abs is a Muslim and is very strict when it comes to eating the right food, going to Muslim talks and the like. It is like when we eat at Maccas he has fillet’o’fish and everyone does because he won’t have you sit next to him eating meat.

80. Abs is the ‘boss’ of the group. He gives the orders, all the money goes to him. He organises everything we do. Abs has about six blackberries and with those he maintains contacts with everyone he supplies with. XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX X. He has had lots of Blackberry ID’s, his latest one he uses to contact me on is ‘unconfirmed’.

81. Abs has just bought a new C63 AMG which he bought in around April or March. One of his mates has a factory behind the Mercedes dealer in Alexandria. Abs had a charcoal or black WRX STI before that and possibly even a Ferrari before that. Abs does not have a girlfriend and doesn’t drink or take drugs. Abs will buy cocaine for the boys and allow them to have it when he buys it but doesn’t like it when they have it at other times because he doesn’t want people ‘fried’ - by that I mean off their head.” [26]

26. I understand the struck-out portions are not pressed.

  1. For what it is worth, I would allow paragraph 76 as it establishes the witness’s knowledge of Mr Sultani.

  2. I was confused as to the status of the rest of this evidence and whether or not it was pressed. The written submissions seemed to suggest the evidence was pressed but objected to. However, the transcript (as I read it) suggests that the remaining portions were not pressed: see tcpt, 1 November 2022, p 140. However, having said (in oral submissions) that the evidence was not pressed, the Prosecutor said:

“Noting that evidence of Sultani's relationship and position in the group of associates in 2013 is something evidence of which the Crown does not abandon”. [27]

27. Tcpt, 1 November 2022, p 140(15-17).

  1. Given my imperfect understanding, I indicate that (i) assuming there is evidence that the particular accused in question (be it Mr Hosseinishoja or Mr Abdaly) is established to be a member of “the group” referred to in paragraph [80] and (ii) that the evidence relates to the period around June 2013, I would have allowed the evidence that “Abs [being Mr Sultani] is “the boss of the group” and that “he gives the orders”.

  2. On the same two assumptions, I would have allowed the evidence that the members of the group followed or adopted Mr Sultani’s habit of sitting when he urinated and followed his lead in eating fish burgers at McDonald’s. This evidence speaks to the control that Mr Sultani exercised over the members of the group. It is therefore relevant and admissible. However, the Prosecutor appears to have abandoned that part of the evidence and it may be a wise decision given the other evidence in the case.

  3. I would allow paragraph 76 but reject paragraphs 77-81 in its current form, subject to the observations in the last two paragraphs.

Objection 6

  1. As best as I can make out, the final issue remaining is the prosecution’s desire to lead evidence from relevant witnesses to the effect that Mr Abdaly and Mr Hosseinishoja, and other persons identified as close associates of Sultani, “remained close associates of Abuzar Sultani until November 2016”. This was identified in the written submissions as one of the issues that remained in dispute (MFI 18, paragraphs 3 and 13). The same paragraphs indicated that the evidence of this later association and involvement in “the group” would not include “dealing with drugs money vehicles and firearms”.

  2. I am satisfied the continued association with Mr Sultani is relevant and, based on the proviso referred to in the last sentence of the preceding paragraph – and accepting the Prosecutor’s undertaking in that regard – does not carry with it the danger of unfair prejudice that attends much of the other evidence.

  3. Accordingly, I will allow such evidence.

Objection 7

  1. A further matter raised during the oral argument, and upon which I neglected to rule when I published a draft of this judgment for the parties’ consideration, [28] concerned the following evidence proposed to be led from RS 6152170:

“85. Anoush [that is, the accused Mr Abdaly] was the secretary of the Burwood Rebels and would collect everyone’s fees each week. We all paid $50 a week which went into a money pot to be used for legal fees if anyone of us go charged by the police.”

28. The Prosecutor reminded me of this unresolved issue after the draft judgment was provided to the parties: see tcpt, 2 November 2022, p 188.

  1. Mr Abdaly objected to the italicised portion on the basis that it discloses some non-specific form of gang associated criminality.

  2. In conformity with my other rulings in relation to this body of evidence, this evidence is not admissible on the application of s 137 of the Evidence Act. The probative value of evidence that the Burwood Rebels had a “money pot” to be used for lawyers in the event that a member was charged with a criminal offence is slight. That probative value is outweighed by the danger of unfair prejudice.

Rulings

  1. For those reasons, I made the following evidentiary rulings:

  1. Except for the first sentence of paragraph 18 (to which objection was withdrawn), the evidence in paragraphs [16]-[18] and [22] of the statement of witness RS 1546093 signed 15 July 2016 is not admissible.

  2. Unable to rule on item 6 in the email which is marked as Ex VD-3. However, the evidence is rejected in its current form.

  3. The tender of the evidence in paragraph 9 of the statement of RS 1521670 signed 28 October 2016 is rejected and the application to conduct a Basha inquiry to obtain further details is refused.

  4. The tender of the evidence in paragraphs 19-23 of the statement of RS 1521670 signed 28 October 2016 is rejected and the application to conduct a Basha inquiry to obtain further details in relation to paragraphs 19-22 is refused.

  5. Allow paragraph 76 of the statement of RS 1521670 signed 28 October 2016.

  6. Note the prosecution does not press paragraphs 77-81 of the statement of RS 1521670 signed 28 October 2016, while noting that parts may be admissible if pressed.

  7. Allow direct evidence that Mr Abdaly and Mr Hosseinishoja remained close associates of Abuzar Sultani until November 2016.

  8. Note the prosecution’s written submission:

“The references to ‘the group’ and ‘operations which included dealing with drug money vehicles and firearms will not be adduced as part of the evidence of a general nature’.”

  1. The tender of the evidence in paragraph 85 of the statement of RS 6152170 signed 28 October 2016 that money collected by Mr Abdaly for club fees “went into a money pot to be used for legal fees if anyone of us got charged by the police” is not admissible.

**********

Endnotes

Decision last updated: 19 December 2022

Most Recent Citation
Cases Citing This Decision

1

R v Abdaly; R v Hosseinishoja (No 3) [2022] NSWSC 1511
Cases Cited

12

Statutory Material Cited

2

Elomar v R [2014] NSWCCA 303
Tsang v DPP (Cth) [2011] VSCA 336
Harriman v the Queen [1989] HCA 50