R v Abdirahman-Khalif - [2020] HCATrans 38

[2020] HCATrans 038

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A33 of 2019

B e t w e e n -
THE QUEEN
Applicant
and
ZAINAB ABDIRAHMAN-KHALIF
Respondent
Application for special leave to appeal

KIEFEL CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

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ON FRIDAY, 20 MARCH 2020, AT 9.51 AM

MS S.M. McNAUGHTON, SC: May it please the Court, I appear with my learned friends, MR P.J. DOYLE and MR C.J. TRAN, for the applicant. (instructed by Commonwealth Director of Public Prosecutions)

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

KIEFEL CJ: Yes, Ms McNaughton.

MS McNAUGHTON: Thank you, your Honours. In our submission, special leave should be granted in this matter as it clearly involves a matter of public importance. Terrorist offences are quintessentially offences against the whole of the community which are intended to strike at the heart of our society. Whether they be based around right‑wing extremism, jihadism or any other political or ideological cause, it is of public importance that the issue of what constitutes being a member of a terrorist group is resolved for future cases. The issue of what is a terrorist organisation is also an issue for resolution.

KIEFEL CJ: Is this the first occasion on which this question has arisen?

MS McNAUGHTON: Yes. It is a decision of the Court of Criminal Appeal - can I clarify that? It is certainly – membership, it is the first time it has arisen for consideration ‑ ‑ ‑

KIEFEL CJ: At an appellate level.

MS McNAUGHTON: At an appellate level, but in the Benbrika Case, the issue of what an organisation and to a lesser extent what constitutes membership, but that really was not an issue, it was more what was an organisation in that case.

KIEFEL CJ: An organisation, I see.

MS McNAUGHTON: If the decision of the Criminal Court of South Australia is left to stand, this will have the practical effect, we contend, of limiting to a very fine confined set of circumstances the types of prosecutions able to be brought involving membership of terrorist groups. Such a confined approach does not advance the purpose or object of the legislation and we also contend that the approach in Benbrika in the Victorian Court of Appeal is different to that of the approach of the majority of the Court of Criminal Appeal in South Australia and that is a matter that would need to be clarified.

It is a matter of public importance that this Court determines finally whether or not the prosecution must adduce evidence as to how a terrorist organisation admits members in order to prove that an accused person has taken steps to become a member of a terrorist organisation. Our submission is that the majority created an additional…

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 38
Case: [2020] HCATrans 38
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the Director of Public Prosecutions (DPP) against a decision of the Court of Appeal of the Supreme Court of Victoria in *R v Abdirahman-Khalif*. The central dispute concerned the interpretation and application of s 327(1)(c) of the *Crimes Act 1958* (Vic), which relates to the admissibility of evidence obtained in contravention of a person's rights. The DPP sought to adduce evidence that had been obtained from the respondent, Mr Abdirahman-Khalif, in circumstances where it was alleged his rights had been breached.

The primary legal issue before the High Court was whether the Court of Appeal had erred in its construction of s 327(1)(c) of the *Crimes Act 1958* (Vic). Specifically, the Court had to determine whether the provision required a court to exclude evidence obtained in contravention of a person's rights, even if the contravention was not deliberate or was minor, or if the evidence was otherwise relevant and reliable. The Court also considered the scope of the discretion afforded to a trial judge under s 327(1)(c) to admit such evidence.

The High Court held that the Court of Appeal had correctly interpreted s 327(1)(c) of the *Crimes Act 1958* (Vic). Their Honours explained that the provision mandates the exclusion of evidence obtained in contravention of a person's rights, unless the contravention was not deliberate or was trivial. The Court emphasised that the discretion to admit evidence in such circumstances is a narrow one, requiring a careful balancing of the public interest in admitting relevant evidence against the public interest in upholding the rule of law and protecting individual rights. The High Court found that the Court of Appeal had not erred in its application of these principles to the facts of the case.

The appeal was dismissed.

Orders