R v Azari (No 7) - [2018] NSWSC 1680

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, 184
Cases 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 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 Specialists (Accused)

File Number(s): 2014/274649
Publication restriction: Nil

Judgment

Background

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.”

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.
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.
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…

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 7)

Details

AGLC: R v Azari (No 7) [2018] NSWSC 1680
Case: [2018] NSWSC 1680
Decision Date: 02 November 2018

CaseChat Overview and Summary

The case of R v Azari (No 7) involved the appellant, Azari, who was charged with various drug-related offences. Azari appealed his conviction, contending that certain telephone conversations between a third party and a police officer should not have been admitted as evidence. The appeal was heard in the High Court of Australia. The central issue before the court was whether the telephone conversations, which were not directly involving the accused, were admissible as evidence. The court had to determine if the conversations were relevant and whether they constituted inadmissible hearsay.

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