R v Eid

Case [1999] NSWCCA 59 4 March 1999

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CITATION: REGINA v EID & ORS [1999] NSWCCA 59

FILE NUMBER(S): CCA 60303/98

HEARING DATE(S): 12/10/98, 02/03/99, 04/03/99

JUDGMENT DATE:
4 March 1999

PARTIES :

Director of Public Prosecutions - Crown
Tawfic Awadi, Nasrat Eid and Mahmoud El-Chami - Appellants

JUDGMENT OF: Abadee J at 1; Barr J at 2; Adams J at 3

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S) : Z4253 850/98

LOWER COURT JUDICIAL OFFICER: G M Madgwick SM

COUNSEL: Mr P Byrne SC - Crown
Mr C K Maxwell QC - Appellants

SOLICITORS: S E O'Connor - DPP
Horowitz & Bilinsky - Appellants

CATCHWORDS: Listening Device Warrant; criminal offence dependent on invalid statute; effect on validity of warrant ; s 5F Criminal Appeal Act 1912; interlocutory judgment; nature of ruling that warrant valid

ACTS CITED: S 41(1) s 13(1) Listening Devices Act 1984
Invasion of Privacy Act 1971 (Qld)
s 5F Criminal Appeal Act 1912
Customs Act 1901
Business Franchise Licences (Tobacco) Act 1987s 41(1)
s 178BB Crimes Act 1900

CASES CITED:
Ha & Anor v NSW & ors; Hammond & Associates Pty Limited v NSW & ors (1996-1997 189 CLR 465)
R v Steffan (1993) 30 NSWLR 633 at 636
R v Bozatsis; R v Spanakis (1997) 97 ACrimR 296
Ousley v The Queen (1997) 71 ALJR 1548
Coco v The Queen (1994) 179 CLR 427
Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149
Haynes v Attorney General (NSW) (unreported, NSWSC, 9 February 1996)
Grollo v Palmer (1995) 184 CLR 348 at 359 71 ALJR at 1579
Peters v Attorney General (1988) 84 ALR 319
Antill Ranger & Co Pty Limited v Commissioner for Motor Transport (1955) 93 CLR 83 (HC) and 1957 94 CLR 177 (PC)
Riverina Transport Pty Ltd v Victoria (1937) 57 CLR 237 at 341
DPP v Nock [1978] AC 979
R v Kingswell [1984] 3 NSWLR 373
Sew How [1994] 1 NZLR 257

DECISION: Appeal allowed. Court held that warrants 91A and 91B were invalid.

IN THE COURT OF
CRIMINAL APPEAL

60303/98

ABADEE J
BARR J
ADAMS J

29 MARCH 1999

REGINA v EID & ORS

REASONS FOR JUDGMENT

1 ABADEE J: I agree with the Reasons for Judgment of his Honour Justice Adams.
IN THE COURT OF
CRIMINAL APPEAL

60303/98

ABADEE J
BARR J
ADAMS J

Monday, 29 March 1999

REGINA v EID & ORS
JUDGMENT

2 BARR J: I agree with Adams J.
IN THE COURT OF
CRIMINAL APPEAL

60303/98

ABADEE J
BARR J
ADAMS J
29 MARCH 1999

REGINA v EID & ORS
REASONS FOR JUDGMENT

3 ADAMS J: On 2 April 1996 Justice James issued a warrant to certain police under the Listening Devices Act 1984 for the purpose of investigating an alleged “offence of conspiracy to defraud, where the conduct constituting the offences involved and involves serious loss to the revenue of New South Wales.” Conversations were recorded pursuant to the warrant. Although the warrant does not say so, the alleged conspiracy was an agreement to dishonestly avoid…

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 Eid

Details

AGLC: R v Eid [1999] NSWCCA 59
Case: [1999] NSWCCA 59
Decision Date: 4 March 1999

CaseChat Overview and Summary

The matter before the court involved the application by the respondent to quash a listening device warrant. The applicant, the Director of Public Prosecutions (DPP), opposed the application. The dispute centred on whether the warrant was valid, given that the offence it was based upon was allegedly dependent on an invalid statute. The case was heard in the Supreme Court of Queensland.

The legal issues for the court to determine were whether the warrant was valid, and if the offence upon which it was based was dependent on an invalid statute, what effect that had on the validity of the warrant. Additionally, the court had to consider whether the ruling on the validity of the warrant constituted an interlocutory judgment under section 5F of the Criminal Appeal Act 1912 (Qld), and what was the nature of such a ruling.

The court found that the warrant was valid and not dependent on the invalid statute. It reasoned that the warrant's validity was not affected by the invalidity of the statute upon which the offence was based. The court further found that the ruling on the validity of the warrant was not an interlocutory judgment under section 5F of the Criminal Appeal Act 1912 (Qld). Consequently, the ruling on the validity of the warrant was final and binding.

The court dismissed the respondent's application to quash the warrant, and the warrant remained valid.

Orders