R v Dirani (No 8)

[2023] NSWSC 70

Supreme Court

New South Wales

Medium Neutral Citation:

R v Dirani (No 8) [2023] NSWSC 70

Hearing dates:

16 September 2022

Date of orders:

23 September 2022

Decision date:

23 September 2022

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

The evidence is excluded.

Catchwords:

CRIMINAL LAW – Evidence – When objection was taken to evidence of conversation between two co-conspirators - Conversation recorded by listening device – Primary objection on the basis of relevance – Where counsel for the accused sought that the determination of admissibility be made without the aid of a transcript – Where the conversation was played on several occasions – Court unable to determine what was said – Evidence not relevant – Evidence excluded

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)

Evidence Act 1995 (NSW).

Cases Cited:

R v Bushell; R v Tozer (No 6); [2021] NSWSC 750

Category:

Procedural rulings

Parties:

Rex – Crown
Mustafa Dirani – Accused

Representation:

Counsel:
D Staehli SC and B Anniwell – Crown
N Steel and D Pace - Accused

Solicitors:
Director of Public Prosecutions (Cth) – Crown
Fourtree Lawyers – Accused

File Number(s):

2015/335067

Publication restriction:

Nil

Judgment

1. Mustafa Dirani has pleaded not guilty to an Indictment alleging that between about 6 August 2015 about 7 October 2015 he conspired with a number of people to do acts in preparation for a terrorist act.

2. The Crown case is set out in a lengthy Crown case statement which has been filed. These reasons assume familiarity with the contents of that document, and with the general nature of the Crown case.

3. The Crown seeks to rely on a conversation which took place on 2 October 2015 between two co-conspirators, Raban Alou and Talal Alameddine. That conversation was recorded by a listening device. Counsel for the accused sought the exclusion of part of that evidence, primarily on the grounds of relevance.

4. Having considered the matter, I came to the view that the evidence should be excluded and I indicated that I would publish my reasons in due course. Those reasons now follow.

5. There is obviously no issue that a conversation took place. However, it is the position of counsel for the accused that it is impossible to ascertain what was said in those parts of the conversation to which objection has been taken, essentially because of the quality of the recording. Counsel has submitted, in particular, that those parts are not sufficiently clear to permit the preparation of the transcript which is relied upon by the Crown.

6. It was the position of counsel for the accused that in these circumstances, I should determine the question of admissibility by listening to the recording without the transcript. This course was urged so that I would not be “primed” (for want of a better word) with a suggested set of words that are said to be able to be heard. [1] The Crown did not object to that course being taken.

   1. See R v Bushell; R v Tozer (No 6); [2021] NSWSC 750 at [39].

7. I listened to the recording in Court in the presence of the parties more than once. Having done so, I was simply not able to ascertain what was being said, other than odd single words which, of themselves, were of no probative value.

8. Subsequently, I listened to the conversation several times in Chambers with the aid of headphones. The result was the same. Although it was possible, after several attempts, to ascertain certain isolated words, they were disjointed.

9. In these circumstances, the only available conclusion was that the evidence was not relevant within the meaning of s 55 of the Evidence Act 1995 (NSW).

10. In these circumstances, I ruled that the evidence should be excluded.

**********

Endnote