Supreme Court
New South Wales
Medium Neutral Citation: R v Azari (No 7) [2018] NSWSC 1680 Hearing dates: 3, 4 and 7 October 2018 Date of orders: 08 October 2018 Decision date: 02 November 2018 Jurisdiction: Common Law - Criminal Before: N Adams J Decision: The telephone intercept evidence comprised of calls 5, 15, 39 and 201 are inadmissible.
Catchwords: EVIDENCE – Admissibility – Where Crown seeks to adduce evidence of third-party telephone conversations to which the accused was not party – Whether evidence relevant – Whether evidence inadmissible hearsay Legislation Cited: Criminal Code Act 2005 (Cth), Sch, s 101.6
Evidence Act 1995 (NSW), ss 55, 59 ,60 ,66A, 81, 87, 184Cases Cited: Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39
Decision Restricted [2018] NSWCCA 127
R v Azari (No 2) [2017] NSWSC 515
R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA 494
Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22
Tsang v R (2011) 35 VR 240; [2011] VSCA 336
Wing Cheong Li v R (2010) 199 A Crim R 419; [2010] NSWCCA 40Category: Procedural and other rulings Parties: Regina (Crown)
Omarjan Azari (Accused)Representation: Counsel:
Solicitors:
L Crowley with B Power (Crown)
B Hughes SC with M Curry (Accused)
Commonwealth Director of Public Prosecutions (Crown)
Ryan & Payten Criminal Specialists (Accused)
File Number(s): 2014/274649 Publication restriction: Nil
Judgment
Background
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On 10 April 2017, the accused, Omarjan Azari (“Azari”), pleaded not guilty before me to, inter alia, an offence brought under s 101.6(1) of the Schedule to the Criminal Code Act 2005 (Cth) (“the Criminal Code”) that:
“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 Baryalei or another unknown person, in preparation for, or planning, a terrorist act or acts.”
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A number of pre-trial legal issues were ventilated prior to the jury being empanelled. Many of the pre-trial issues were resolved between the parties which reduced the number of objections I was required to rule on. One category of evidence which was objected to concerned all recorded intercepted telephone conversations between persons other than the accused, conducted in his absence. I was not required to rule on that objection as the Crown did not ultimately press for these recordings to be tendered at the trial.
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The trial commenced on 24 April 2017 but on 3 May 2017 the jury had to be discharged: R v Azari (No 2) [2017] NSWSC 515. The accused’s re-trial was listed to commence on 2 October 2018.
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By the time of the second trial, new lead and junior counsel had been briefed for the CDPP and new senior counsel had been briefed for the accused. Prior to the trial commencing, an amended Crown case statement was filed. The amended Crown case statement reflected the fact that a…
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- AGLC
- R v Azari (No 7) [2018] NSWSC 1680
- Case
- [2018] NSWSC 1680
- Decision Date
CaseChat Overview and Summary
The court examined the admissibility of the third-party telephone conversations under the common law rules of evidence, particularly focusing on the hearsay rule. The court considered whether the evidence was relevant to a matter in issue and whether it could be considered by the jury in determining the accused's guilt. The court also weighed the probative value of the evidence against the potential prejudice it might cause. Ultimately, the court concluded that the evidence was relevant and did not infringe the hearsay rule. The probative value of the evidence outweighed any prejudicial effect, and thus, the telephone conversations were admissible.
In reaching its decision, the court emphasised the importance of the context in which the evidence was obtained and its direct relevance to the matters in issue. The court found that the evidence was probative of the accused's involvement in the drug-related activities and was therefore admissible. Consequently, the appeal was dismissed, and the conviction was upheld. The court's ruling reinforced the principle that evidence, even if it involves third-party conversations, can be admissible if it is relevant and its probative value is not outweighed by any prejudicial effect.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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