R v Al Jenabi - [2004] NTSC 44

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PARTIES: THE QUEEN

ALI HASSAN ABDOLAMIR AL JENABI

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO: 20308400, 20308403

DELIVERED: 7 September 2004

HEARING DATES: 7-11, 22-25, 28-30 June 2004 and 1-2, 5-7, 9, 12-16, 19, 21-22, 30 July 2004

JUDGMENT OF: MILDREN J

CATCHWORDS:

CRIMINAL LAW – evidence – discretion to exclude – reliability –unfairness discretion – public policy – probative value weighed against prejudicial effect

EVIDENCE – whether admissible – whether proper identification made on photo board – whether highly prejudicial to accused – whether legislation complied with

Crimes Act 1914 (Cth) s 3, s 3ZO, s 3ZO(1), s 3ZO(2), s 3ZO(2)(f), s 3ZM(6)(1); Evidence Act (NT) s 26L; Migration Act 1958 (Cth) s 232A

Eyewitness Identification: Why So Many Mistakes?, Lorretta Re (1984) 58 ALJ 509 at 513

Alexander v The Queen (1980-1981) 145 CLR 395 at 414; Bunnings v Cross (1998) 141 CLR 54; Festa v The Queen (2001) 208 CLR 593 at 602; Murphy v The Queen (1994) 52 SASR 124 at 124-125; R v Carr (2000) 117 A Crim R 272 at 288; R v KS (2003) 139 A Crim R 553 at 560; The Queen v Swaffield (1998) 192 CLR 159; referred to

REPRESENTATION:

Counsel:
Plaintiff: D Lovell QC, P Usher
Defendant: J Tippett QC, G Smith

Solicitors:
Plaintiff: Commonwealth Director of Public Prosecutions
Defendant: NT Legal Aid Commission

Judgment category classification: B
Number of pages: 38

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

R v Al Jenabi [2004] NTSC 44
No. 20308400, 20308403

BETWEEN:

THE QUEEN
Plaintiff

AND:

ALI HASSAN ABDOLAMIR AL JENABI
Defendant

CORAM: MILDREN J

REASONS FOR RULING

(Delivered 7 September 2004)

[1] This is an application pursuant to s 26L of the Evidence Act.
[2] The accused is charged with four counts of “people trafficking” contrary to s 232A of the Migration Act 1958 (Cth) (as well as with a number of alternative charges). The four main counts allege that he was responsible for the organisation of four boats of illegal immigrants which arrived in the Australian Territory of Ashmore and Cartier Islands in 2000 and 2001. The issues in the case are whether the person who is in the dock is Ali Al Jenabi and whether he is the person responsible for the organisation of the bringing into Australia of a group of five people or more, reckless as to whether or not those people had a lawful right to come to Australia.
[3] The evidence which the Crown intends to lead is of the following kind:
(1) evidence from an informer, a Mr Sultani, who allegedly worked for the accused for a period of 12 months and who is well familiar with him and with his operations;
(2) the evidence of a number of passengers on the vessels who claim to be…

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 Al Jenabi

Details

AGLC: R v Al Jenabi [2004] NTSC 044
Case: [2004] NTSC 44
Decision Date: 07/09/2004

CaseChat Overview and Summary

In this criminal case, the accused was charged with "people trafficking" contrary to s 232A of the Migration Act 1958 (Cth). The main issues in the case were whether the person who is in the dock is Ali Al Jenabi and whether he is the person responsible for the organisation of the bringing into Australia of a group of five people or more, reckless as to whether or not those people had a lawful right to come to Australia. The present application relates to the evidence of those witnesses who were passengers upon the four vessels concerned. Each of those witnesses were asked by members of the Australian Federal Police to look at a photo board made up of 9 black and white photographs to see if they were able to identify the person who organised their trip to Australia. Most of those witnesses picked out a photograph of the person the Crown alleges is the accused, with varying degrees of certainty as to whether or not this was a photograph of the alleged people smuggler. The photograph used in the photo board is the same photograph used in the visa application. Counsel for the accused submitted that I should exclude this evidence in the exercise of my discretion. The court found that the photo identification evidence of the following witnesses would be excluded in the exercise of the court's discretion for the reasons given above: James Basaka, Mohammed Shohani, Akeel Al Obaidy, Ali Merundi, Mohmood Haeri, Muhammad Al-Shennawa, Massoud Jizan, and Nizar Al Haddad. The evidence of all the other witnesses would be admitted for the reasons given above.

Orders