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R v Dirani (No. 6)

R v Dirani (No. 6)

Case [2018] NSWSC 891 25 June 2018

Criminal Liability

Admissibility of Evidence

Expert Evidence

Criminal Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Dirani (No. 6) [2018] NSWSC 891
Hearing dates: 4 June 2018, 5 June 2018
Date of orders: 05 June 2018
Decision date: 25 June 2018
Jurisdiction: Common Law
Before: Johnson J
Decision:
Reasons for rulings made on 5 June 2018:

1. Allowing the Crown to adduce opinion evidence on surveillance issues from CIN 1877.
2. Allowing the Crown to adduce evidence of extremist material in the possession of, and communicated by, the Accused.
Catchwords: CRIMINAL LAW - trial - conspiracy to do acts in preparation for terrorist act - alternative count of knowingly taking part in supply of firearm - pretrial rulings - objection by the Accused to Crown calling expert opinion evidence on anti-surveillance and counter-surveillance measures - held requirements of s.79(1) Evidence Act 1995 satisfied - evidence of substantial probative value and ought not be excluded under ss.135 or 137 Evidence Act 1995 - objection to Crown tendering extremist material found in possession of Accused some of which was communicated by him to others - evidence of substantial probative value and ought not be excluded under ss.135 or 137 Evidence Act 1995
Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW)
Criminal Code (Cth)
Evidence Act 1995 (NSW)
Firearms Act 1996 (NSW)
Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW)
Cases Cited: Benbrika v R (2010) 29 VR 593; [2010] VSCA 281
BJS v R (2013) 231 A Crim R 537; [2013] NSWCCA 123
Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Dyldam Developments Pty Limited v Jones [2008] NSWCA 56
Elomar v R (2014) 300 FLR 323; [2014] NSWCCA 303
HG v The Queen (1999) 197 CLR 414; [1999] HCA 2
Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29
IMM v The Queen (2016) 257 CLR 519; [2016] HCA 14
Lodhi v R (2006) 199 FLR 303; [2006] NSWCCA 121
Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Morgan v R (2011) 215 A Crim R 33; [2011] NSWCCA 257
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v Baladjam and Ors (No. 50) (Whealy J, NSWSC, unreported, 2 October 2008)
R v Benbrika and Ors (No. 15) [2007] VSC 545
R v Burton (2013) 237 A Crim R 238; [2013] NSWCCA 335
R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA 494
R v Dirani (No. 7) [2018] NSWSC 945
R v Ibrahim and Ors (Fulford J, Woolwich Crown Court, 11 January 2007, unreported)
R v Karabedjovic [2015] VSC 641
R v Kingswell (New South Wales Court of Criminal Appeal, 2 September 1998, unreported)
R v Tang (2006) 65 NSWLR 681; [2006] NSWCCA 167
Velevski v R (2002) 76 ALJR 402; [2002] HCA 4
Ward v R (2018) 55 VR 307; [2018] VSCA 80
Texts Cited: ---
Category: Procedural and other…

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 Dirani (No. 6)

Details

AGLC: R v Dirani (No. 6) [2018] NSWSC 891
Case: [2018] NSWSC 891
Decision Date: 25 June 2018

CaseChat Overview and Summary

In the case of R v Dirani (No. 6), the respondent was charged with conspiracy to commit acts in preparation for a terrorist act, as well as an alternative count of knowingly participating in the supply of a firearm. The proceedings took place in a court of law in Australia. The case revolved around the admissibility of certain evidence tendered by the Crown, including expert opinion evidence on anti-surveillance and counter-surveillance measures, as well as extremist material found in the possession of the respondent, some of which had been communicated by him to others. The respondent raised objections to the Crown's use of this evidence, arguing that it should be excluded under sections 135 and 137 of the Evidence Act 1995.

The court was required to decide whether the evidence met the requirements of section 79(1) of the Evidence Act 1995, and whether it had substantial probative value such that it should not be excluded under sections 135 or 137. The court considered the probative value of the evidence in relation to the charges against the respondent, as well as the potential prejudice to the respondent if the evidence was admitted. The court also considered the relevance of the evidence to the issues in the case, and whether it would assist the jury in determining the facts of the case. The court concluded that the evidence was of substantial probative value and should not be excluded under sections 135 or 137 of the Evidence Act 1995.

The court found that the expert opinion evidence on anti-surveillance and counter-surveillance measures was relevant to the charges against the respondent, and that it would assist the jury in understanding the context in which the respondent was operating. The court also found that the extremist material found in the possession of the respondent was relevant to the charges against him, and that it would assist the jury in understanding his state of mind and the nature of his activities. The court concluded that the evidence was of substantial probative value and should be admitted. The final orders of the court were that the evidence in question would be admitted, and that the trial would proceed as scheduled.

Orders