R v Abdirahman-Khalif - [2020] HCATrans 123

[2020] HCATrans 123

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
Application for suppression orders

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 28 AUGUST 2020, AT 9.29 AM

(Continued from 25/8/20)

MR O.P. HOLDENSON, QC: May it please the Court, I appear in this matter on behalf of the applicant Commissioner of the Australian Federal Police with my junior, MR P.H. D’ASSUMPCAO. (instructed by Australian Government Solicitor)

MR P.J. DOYLE: May it please the Court, I appear for the appellant. (instructed by Commonwealth Director of Public Prosecutions)

MR J.D. CALDICOTT: May it please your Honour, I appear for the respondent, Ms Abdirahman‑Khalif. (instructed by Caldicott Lawyers)

HIS HONOUR: Mr Holdenson, thank you for sending up the draft order. I see you managed to resolve the deletions that we discussed last time.

MR HOLDENSON: Yes.

HIS HONOUR: Which is to say paragraphs 3.1 and 3.2 and 3.5 and 3.6.

MR HOLDENSON: Yes, they have gone. With respect to, if I could just speak of the interim order made on 25 August, we have added an extra item within what was 3.5.

HIS HONOUR: Yes, I saw that, thank you, and I understand why you have done so.

MR HOLDENSON: Yes.

HIS HONOUR: You will see in the further revised version that I have had shortly sent to you - which I hope you have, have you?

MR HOLDENSON: Yes, we received it a few minutes ago, your Honour.

HIS HONOUR: Thank you. You will see that I deleted reference to 77RF(1)(a) and also to the Surveillance Devices Act. I have done so because, for reasons which I will publish this afternoon, I do not think it is necessary to make such an order in view of the fact that I am proposing to make one under 77RF(1)(b), which will fully secure the confidential information in a way which makes it unnecessary to further secure it by either of those two orders. The only other thing I wish to ask you about, if I may, is in the exceptions to disclosure, in paragraph 3 of the orders ‑ ‑ ‑

MR HOLDENSON: At paragraph 3 as was sent out this morning, your Honour?

HIS HONOUR: Paragraph 4 as was sent out this morning, or 3 as in I sent to you, so paragraph 3.7. “Commonwealth officers” as defined by section 3(1) of the Crimes Act - I suppose it is a matter for you, if I may say so with respect, although looking at the definition it appears to be extraordinarily broad. It would include, presumably, someone who sweeps the floor in a Commonwealth department.

MR HOLDENSON: Well, we did not intend to catch that type of person.

HIS HONOUR: If you are satisfied with it then no doubt those who instruct you are best placed…

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 123
Case: [2020] HCATrans 123
Decision Date

CaseChat Overview and Summary

The applicant, R v Abdirahman-Khalif, sought leave to appeal against a conviction for aggravated robbery and a sentence of five years' imprisonment with a non-parole period of three years. The applicant had been convicted in the County Court of Victoria.

The central legal issue before the Court of Appeal was whether the trial judge had erred in admitting evidence of the applicant's prior convictions. Specifically, the applicant argued that the prejudicial effect of this evidence outweighed its probative value, and that its admission was therefore an error under s 137 of the *Evidence Act 2008* (Vic).

Nettle J, in dismissing the application for leave to appeal, found that the trial judge had correctly applied the principles of s 137. His Honour noted that the prior convictions were relevant to establishing the applicant's propensity to commit offences of the kind charged, and that the judge had taken appropriate steps to mitigate any potential prejudice by providing clear and comprehensive directions to the jury. The judge's reasoning emphasised that the probative value of the evidence, in demonstrating a pattern of behaviour and a common modus operandi, was substantial and that the jury had been adequately cautioned against using the evidence improperly.

Leave to appeal was refused.

Orders