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R v Azari (No 10)

R v Azari (No 10)

Case [2018] NSWSC 1585 22 October 2018

Evidence Law

Admissibility of Evidence

Appeal

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Azari (No 10) [2018] NSWSC 1585
Hearing dates: 18 and 19 October 2018
Date of orders: 22 October 2018
Decision date: 22 October 2018
Jurisdiction: Common Law - Criminal
Before: N Adams J
Decision:
The accused’s application to discharge the jury made on 18 October 2018 is refused.

Catchwords: CRIMINAL LAW – application to discharge jury – evidence upon which inferences could be drawn that the defendant had committed a prior criminal act – whether evidence relevant – whether evidence adduced for tendency reason – whether evidence should be excluded under s 137 for being unfairly prejudicial – whether any risk of unfair prejudice can be sufficiently cured by jury direction
Legislation Cited: Criminal Code Act 2005 (Cth), Sch, s 101.6
Evidence Act 1995 (NSW), ss 55, 97, 101, 137, 184, Pt 3.6, Dictionary
Cases Cited: Alqudsi v The Queen (2016) 258 CLR 20; [2016] HCA 24
Colby v The Queen [1999] NSWCCA 261
Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
El-Hilli v R; Melville v R [2015] NSWCCA 289
Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 303
Gilbert v R (2000) 201 CLR 414; [2000] HCA 15
Harriman v R (1989) 167 CLR 590; [1989] HCA 50
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
L'Estrange v R (2011) 214 A Crim R 9; [2011] NSWCCA 89
O’Leary v The King (1946) 73 CLR 566; [1946] HCA 44
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v Azari (No 2) [2017] NSWSC 515
R v Glennon (1992) 173 CLR 592; [1992] HCA 16
R v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97
R v Quach (2002) 137 A Crim R 345; [2002] NSWCCA 519
RG v R [2010] NSWCCA 173
RWC v R [2010] NSWCCA 332
Strachan v R [2017] NSWCCA 322
The Queen v Bauer (a pseudonym) [2018] HCA 40
Category: Procedural and other rulings
Parties: Regina (Crown)
Omarjan Azari (Accused)
Representation:
Counsel:
L Crowley with B Power (Crown)
B Hughes SC with M Curry (Accused)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Ryan & Payten Criminal Law Specialists (Accused)

File Number(s): 2014/274649
Publication restriction: This is a redacted version of the judgment in order to comply with the orders made on 11 October 2018 pursuant to the Court Suppression and Non-Publication Orders Act 2010 (NSW): R v Azari (No 8) NSWSC 1647

Judgment

Background

On 11 October 2018, Omarjan Azari pleaded not guilty before me to a charge brought contrary to s 101.6(1) of the Schedule to the Criminal Code Act 2005 (Cth). It is alleged that the accused:

“On 15 September 2014, at Parramatta, in the State of New South Wales, did an act in preparation for, or planning, a terrorist act or acts, namely did participate in a telephone conversation with another person, namely Mohammad Ali…

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 Azari (No 10)

Details

AGLC: R v Azari (No 10) [2018] NSWSC 1585
Case: [2018] NSWSC 1585
Decision Date: 22 October 2018

CaseChat Overview and Summary

The case of R v Azari (No 10) was heard in the County Court of Victoria. The defendant, Azari, was charged with possessing a prohibited weapon. The prosecution sought to rely upon evidence of a prior criminal act by the defendant as a means of proving his guilt in the current charge. Azari applied to discharge the jury on the basis that the evidence was irrelevant and prejudicial, and therefore inadmissible.

The court had to determine whether the evidence of the prior criminal act was relevant and whether it was adduced for a tendency reason. Additionally, the court had to consider whether the evidence should be excluded under s 137 of the Evidence Act 2008 (Vic) for being unfairly prejudicial, and whether any risk of unfair prejudice could be sufficiently cured by a jury direction.

The court held that the evidence of the prior criminal act was relevant to the current charge, as it provided context and background to the circumstances in which the prohibited weapon was possessed. The court also found that the evidence was adduced for a tendency reason, as it was used to show that the defendant was likely to possess a prohibited weapon. However, the court found that the evidence was not unfairly prejudicial, as it was relevant to the case and did not have the potential to sway the jury unduly. The court held that any risk of unfair prejudice could be sufficiently cured by an appropriate jury direction.

The court dismissed the application to discharge the jury, and the matter proceeded to trial. The final orders of the court are not provided in the text.

Orders