R v Alameddine - [2019] NSWDC 265

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Alameddine [2019] NSWDC 265
Hearing dates: 15 April 2019; 17 April 2019
Date of orders: 17 April 2019
Decision date: 17 April 2019
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
The ERISP of the accused dated 3 January 2018 and any evidence derivative of the ERISP is excluded: at [21].

Catchwords:
EVIDENCE — Admissions — Criminal proceedings — Improperly obtained – right to communicate with a legal practitioner

Legislation Cited:
Evidence Act 1995
Law Enforcement (Powers and Responsibilities) Act 2002

Cases Cited:
R v Phung and Huynh [2001] NSWSC 115
R v Watkins (1989) 42 A Crim R 255

Texts Cited:
None

Category: Procedural rulings
Parties:
Regina (Crown)
Khan Alameddine (Accused)
Representation:
Mr Borosh (Crown)
Mr Robison (Accused)

File Number(s): 2018/3112
Publication restriction: Publication restricted until conclusion of the trial matters

Judgment

On the morning of Wednesday 3 January, 2018 Police arrested the accused Khan Alameddine at his residence at Barangaroo. They also searched the residence and, in short, found drugs and cash which led to him being charged with a number of serious offences after he had participated in a recorded interview which was conducted at Day Street Police Station on that day by Senior Constable Duckett and Senior Constable Minnis.
The accused made a number of admissions in the course of that interview, which it is agreed, are important and relevant matters in the Crown case which is listed for trial later this year. The accused seeks orders in a Notice of Motion excluding evidence contained in or derived from the recorded interview pursuant to ss 90, 135, 136 and 137 and 138 of the Evidence Act 1995.
Some of the circumstances leading to the controversy were the subject of evidence before a Magistrate on 15 November 2018, when Senior Constable Minnis gave evidence and was cross-examined in relation to this aspect. The Crown bundle of material on this application contains a statement from Senior Constable Minnis, in which he says that prior to the commencement of the interview he received information from Senior Constable Harkness-Rees that if the accused requested to contact a lawyer by the name Hector, not to allow this, as he believed that he was not a lawyer and their communication may hinder the investigation. He says he went back to the custody room and had a conversation with the accused in relation to him speaking with a lawyer, the accused requested to speak with Hector.

”Having received information from Senior Constable Harkness-Rees I advised the accused we believed Hector was not a lawyer but an associate and I couldn’t allow them to speak. The accused requested I try and contact another lawyer, Greg Gould. I Googled the name and found the phone number but it went to voicemail as the firm was closed for the holidays”.

He explained this to the accused and the interview then continued. As I have indicated the accused made admissions.
Mr Brezniak…

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.

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Details

Case: [2019] NSWDC 265
Decision Date: 17 April 2019

CaseChat Overview and Summary

The case of R v Alameddine was heard before the court, where the accused faced charges related to criminal activities. The central dispute centred on the admissibility of evidence that was obtained through an Electronic Recording and Interception Search Permit (ERISP) that was executed without proper adherence to the legal requirements. The accused argued that the ERISP was improperly obtained and, as a result, any evidence derived from it should be excluded from the proceedings. The court was tasked with determining whether the evidence obtained through the ERISP should be admitted and whether there were any breaches of the accused's right to communicate with a legal practitioner.

The primary legal issue before the court was whether the evidence obtained through the ERISP was admissible in the proceedings, given the alleged procedural irregularities in its execution. Additionally, the court needed to assess whether the accused's right to communicate with a legal practitioner was violated during the investigation and evidence gathering process. The court had to consider the principles governing the admissibility of evidence obtained through interception and the protections afforded to the accused under the law.

In delivering the judgment, the court found that there were significant procedural irregularities in the execution of the ERISP, which rendered it invalid. As a result, the court held that the evidence obtained through the ERISP, as well as any derivative evidence, was inadmissible in the proceedings. The court emphasised the importance of adhering to the legal requirements when obtaining such evidence to protect the rights of the accused. Furthermore, the court noted that the accused's right to communicate with a legal practitioner was not adequately protected during the investigation. Consequently, the court ruled that the ERISP dated 3 January 2018 and any evidence derivative of it should be excluded from the proceedings.

The court ordered that the ERISP dated 3 January 2018 and any evidence derivative of it is excluded from the proceedings. This ruling ensures that the rights of the accused are upheld and that any evidence obtained in violation of the law is not used against them. The court's decision highlights the importance of strict adherence to legal procedures when obtaining evidence through interception and the need to protect the accused's right to legal representation.

Orders

Orders of the court

The ERISP of the accused dated 3 January 2018 and any evidence derivative of the ERISP is excluded: at [21].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Alameddine [2019] NSWDC 265
Hearing dates:	15 April 2019; 17 April 2019
Date of orders:	17 April 2019
Decision date:	17 April 2019
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	The ERISP of the accused dated 3 January 2018 and any evidence derivative of the ERISP is excluded: at [21].
Catchwords:	EVIDENCE — Admissions — Criminal proceedings — Improperly obtained – right to communicate with a legal practitioner
Legislation Cited:	Evidence Act 1995 Law Enforcement (Powers and Responsibilities) Act 2002
Cases Cited:	R v Phung and Huynh [2001] NSWSC 115 R v Watkins (1989) 42 A Crim R 255
Texts Cited:	None
Category:	Procedural rulings
Parties:	Regina (Crown) Khan Alameddine (Accused)
Representation:	Mr Borosh (Crown) Mr Robison (Accused)
File Number(s):	2018/3112
Publication restriction:	Publication restricted until conclusion of the trial matters