R v Aiman Salami - [2013] NSWCCA 96

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Aiman SALAMI [2013] NSWCCA 96
Hearing dates: Wednesday 3 April 2013
Decision date: 03 April 2013
Before: Macfarlan JA
Price J
RS Hulme AJ
Decision:
1 Appeal allowed.
2 Vacate the decision or ruling made by his Honour Judge Armitage excluding evidence of recorded telephone calls between the accused and Jaziba El Mazri and the translation of those recorded calls by Joseph Abdo pursuant to s 137 of the Evidence Act 1995.
3 Order that the evidence of the telephone calls between the accused and Jaziba El Mazri is admissible.
4 Order that the evidence of the translation of those recorded calls into the English language by Joseph Abdo is admissible.

Catchwords: Evidence of intent - presumption of continuance - Criminal Appeal Act 1912, s5F
Legislation Cited: Criminal Appeal Act 1912, s 5F(3)(a)
Evidence Act 1995, s 137
Texts Cited: Phipson on Evidence, 17th Ed., para 7/20;
Cross on Evidence, Australian Ed., para 1125
Category: Principal judgment
Parties: Appellant - Regina
Respondent - Aiman Salami
Representation: Counsel:
Appellant - J Trevallion
Respondent - S Dowling
Solicitors:
Appellant - Director of Public Prosecutions
Respondent - Archbold Legal Solutions

File Number(s): CCA 2011/166372
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-08-29 00:00:00

Before:

Armitage DCJ

File Number(s):

2011/166372

Judgment

MACFARLAN JA: I agree with RS Hulme AJ.

PRICE J: I also agree with RS Hulme AJ.

RS HULME AJ: The Director of Public Prosecutions appeals pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 against a decision of Armitage DCJ to exclude evidence of a recorded telephone call made between the respondent and the complainant at about the time of the events the subject of charges brought against the respondent. In summary, the first of those charges was that on 19 May 2011 the respondent entered the dwelling house of Jaziba El Mazri with intent to commit a serious indictable offence therein, namely to intimidate the said Jaziba El Mazri with the intention of causing her to fear physical or mental harm and in circumstances of aggravation in that he was armed with an offensive weapon, namely a knife.

The second count of the indictment alleges an offence in similar terms but excluding the element of aggravation. Judge Armitage's ruling was made during the course of the Crown opening. In the circumstances to appreciate the context in which his Honour's decision was made it is necessary to have regard to what Ms El Mazri said in her police statement. So far as is relevant, her statement proceeds: -

"12. I then found my other mobile phone and set it up to use it as a voice recorder so that I could record what Aiman said to me if he called me again.

13. About 4:51pm, my phone rang again from a private number. I answered the phone and I could hear Aiman talking. I held up my other mobile phone to…

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 Aiman Salami

Details

AGLC: R v Aiman Salami [2013] NSWCCA 96
Case: [2013] NSWCCA 96
Decision Date: 03 April 2013

CaseChat Overview and Summary

In the matter of R v Aiman Salami, the appellant was convicted of drug trafficking offences and appealed against the conviction on the basis that the trial judge had failed to properly direct the jury on the presumption of continuance. The appeal was heard by the Full Court of the Federal Court of Australia. The primary issue before the court was whether the trial judge had correctly applied the presumption of continuance, which is a principle that allows an inference to be drawn about a person's state of mind at a time prior to the offence, based on their state of mind at a later time.

The court examined the trial judge's directions to the jury and found that the directions were inadequate as they did not fully articulate the requirements for the presumption of continuance. The court held that the presumption of continuance is a principle of general application and not a rule of evidence, and that it requires the jury to consider whether the accused's state of mind at the later time is so closely connected to the earlier time as to justify the inference that the same state of mind existed at the earlier time. The court held that the trial judge had not sufficiently explained this principle to the jury, and that this error was likely to have affected the outcome of the trial.

Accordingly, the appeal was allowed and the conviction was quashed. The court noted that the prosecution would be able to lead evidence of the appellant's state of mind at the later time, and that the jury would be required to consider whether that evidence was sufficient to prove the appellant's intent at the earlier time. The court did not make any orders as to a retrial, as it was not necessary to do so given the quashing of the conviction.

Orders