R v Abdirahman-Khalif - [2020] HCATrans 129

[2020] HCATrans 129

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A5 of 2020

B e t w e e n -
THE QUEEN
Appellant
and
ZAINAB ABDIRAHMAN‑KHALIF
Respondent

BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO CONNECTION TO BRISBANE, SYDNEY AND MELBOURNE

ON THURSDAY, 3 SEPTEMBER 2020, AT 10.00 AM

MS S.M. McNAUGHTON, SC: I appear with my learned friends, MR P.J. DOYLE and MR C.J. TRAN, for the appellant. (instructed by Commonwealth Director of Public Prosecutions) We have actually lost all visual message now, but I hope you can hear me and perhaps see me.

BELL J: I can see and hear you, but you at the moment have no sight of the Court. Is that the position?

MS McNAUGHTON: That is the position. I have a white screen.

BELL J: Yes. Let me just inquire before we consider how to proceed, Ms McNaughton.

MS M.E. SHAW, QC: I appear with my learned friend, MR B.J. DOYLE, for the respondent. (instructed by Caldicott Lawyers)

BELL J: Thank you, Ms Shaw. Do I take it you have no difficulty both seeing and hearing the Court?

MS SHAW: No, we do not.

BELL J: And are you able to see Ms McNaughton?

MS SHAW: Yes, we can, in the left corner.

BELL J: Ms McNaughton, it seems unsatisfactory to stay with you not being able to see the Court or your opponent. What I propose to do is to briefly adjourn to see if we can rectify the situation. The Court will adjourn.

AT 10.02 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.07 AM:

BELL J: Ms McNaughton, do I take it that you can now see the Court?

MS McNAUGHTON: Yes, I can indeed. Thank you, Justice Bell.

BELL J: Yes, very well.

MS McNAUGHTON: The appellant’s contention is that the fundamental error of the majority of the court below was the overly narrow and formal construction of the word “member” when taking into account the extended inclusive definition. That erroneous approach was informed by problems with the definition of “organisation” and we also contend wrapped up in this issue was a failure by the majority of the court to grapple with the body of evidence that was actually before the jury.

If I may just set the statutory scene quickly. The offence provision in question is 102.3 of the Criminal Code (Cth). That is at page 42 of volume 1 of the joint book of authorities. But going back to ‑ one can see the top of that page, that is within Chapter 5 and within Part 5.3, but to go to the beginning of Chapter 5 which we note is called “The security of the Commonwealth”, that is divided into different divisions. Division 1 is preliminary - that contains within it some definitions. Then there is Division 101 which is entitled “Terrorism” and…

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 R v Abdirahman-Khalif

Details

AGLC: R v Abdirahman-Khalif [2020] HCATrans 129
Case: [2020] HCATrans 129
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, R v Abdirahman-Khalif, against a decision of the Court of Appeal of the Supreme Court of Victoria. The applicant had been convicted of a number of offences, including aggravated burglary and assault, and sought to challenge the validity of the search warrant that led to the discovery of evidence used in his prosecution. The central dispute concerned whether the information provided to obtain the search warrant was sufficient to establish reasonable grounds for believing that evidence of a criminal offence would be found at the premises to be searched.

The High Court was required to determine whether the issuing officer had a sufficient evidentiary basis to form the requisite belief for the grant of the search warrant under section 480 of the *Crimes Act 1958* (Vic). Specifically, the Court had to consider whether the information before the issuing officer, which included details about the applicant's alleged involvement in prior criminal activity and intelligence regarding his current whereabouts, provided reasonable grounds to suspect that evidence relating to the alleged offences would be found at the specified address.

The Court reasoned that the issuing officer must have reasonable grounds for believing that evidence of a criminal offence will be found at the premises. This requires more than mere suspicion; it necessitates an objective assessment of the information presented. In this instance, the Court found that the information provided did not establish a sufficient nexus between the alleged offences, the applicant's suspected possession of evidence, and the premises to be searched. The intelligence relied upon was too general and lacked the specificity required to justify the intrusion involved in executing a search warrant. Consequently, the search warrant was deemed to have been improperly issued.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders