R v Kashani-Malaki - [2011] QSC 308

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kashani-Malaki [2011] QSC 308

PARTIES:

THE QUEEN
(respondent)
v

MORTEZA KASHANI-MALAKI

(applicant)

FILE NO/S:

1258/08

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

5 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

4 October 2011

JUDGE:

Ann Lyons J

ORDER:

1. The application for the exclusion of the telephone intercept evidence is refused.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – where the accused has pleaded not guilty to trafficking in dangerous drugs and importing prohibited imports – where the accused applies pursuant to s 590AA of the Criminal Code 1899 for a pre-trial ruling that numerous telephone recordings be excluded on the basis that the Australian Crime Commission (ACC) did not comply with the requirements of the Telecommunication (Interception Act) 1979 (the Act) at the time the interceptions were carried out in 2003 and 2004 – whether the ACC sufficiently notified the Managing Director of the carrier of the issue of the warrant in accordance with ss 47 and 60 of the Act – whether the evidence should be excluded

Criminal Code 1899 (Qld), s 590AA–
Telecommunication (Interception Act) 1979 (Cth); ss 7, 47, 60

R v Bunting and Wagner (No 5) [2003] SASC 253; followed

COUNSEL:

R Richter QC with M Croucher for the applicant
G Rice SC with J Hanna for the respondent

SOLICITORS:

Anthony Isaacs Lawyers for the applicant
Director of Public Prosecutions (Cth) for the respondent

ANN LYONS J:

The Charges

Mr Kashani-Malaki (the accused) is charged on a two count indictment with one count of trafficking in dangerous drugs, namely heroin, methylamphetamine, cocaine and 3,4-methylenedioxymethamphetamine(MDMA) between 29 July 2003 and 13 April 2004 (count 1) and one count of importing prohibited imports, namely narcotic goods consisting of a trafficable quantity of cocaine between 8 December 2003 and 28 January 2004 (count 2).

Background

Mr Kashani-Malaki pleaded not guilty and the trial commenced in the Brisbane Supreme Court on 10 July 2009. He represented himself. During the period of the alleged trafficking the Australian Crime Commission (ACC) conducted a surveillance operation which involved extensive telephone interceptions. It is clear that the main evidence implicating the accused involved some 206 intercepted telephone conversations. Recordings of those conversations and transcripts of those conversations were the basis of the evidence at trial. After a three week trial the accused was convicted by a jury of the trafficking charge in count1. The jury were unable to reach a verdict on count 2.

Mr Kashani-Malaki appealed to the Court of Appeal on five grounds namely;
(i)         The pre-trial judge erred by holding there were alternative grounds to challenge the authenticity of alleged recordings.
(ii)        The pre trial judge erred by ruling that evidence of telephone excerpts was admissible against him.
(iii)       The trial miscarried as he was not represented by Counsel.
(iv)       There was a miscarriage of justice due to the way in which a note from a juror was dealt with by the trial judge.
(v)        There…

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 Kashani-Malaki

Details

AGLC: R v Kashani-Malaki [2011] QSC 308
Case: [2011] QSC 308
Decision Date: 5 October 2011

CaseChat Overview and Summary

The case of R v Kashani-Malaki involves the appellant, who has pleaded not guilty to charges of trafficking in dangerous drugs and importing prohibited imports. The appellant sought a pre-trial ruling under section 590AA of the Criminal Code 1899, requesting that numerous telephone recordings be excluded from evidence on the basis that the Australian Crime Commission (ACC) did not adhere to the requirements of the Telecommunication (Interception Act) 1979 when the interceptions were carried out in 2003 and 2004. The primary issue for the court to determine was whether the ACC had sufficiently notified the Managing Director of the carrier of the issue of the warrant, as required by sections 47 and 60 of the Act, and if the evidence should consequently be excluded.

The court examined the procedural history and the statutory requirements under the Telecommunication (Interception Act) 1979, specifically sections 47 and 60. The appellant argued that the ACC failed to provide the requisite notification to the Managing Director of the carrier, thereby invalidating the telephone intercepts. The court considered the evidence provided by the ACC and assessed the compliance with statutory obligations. The court concluded that while there were procedural shortcomings, these did not reach the threshold of depriving the evidence of probative value or rendering the trial unfair. The court also took into account the public interest in convicting serious drug-related offences and the integrity of the criminal justice system.

Based on the court's analysis, the application for the exclusion of the telephone intercept evidence was refused. The court held that despite the procedural deficiencies, the evidence was admissible and should not be excluded. The reasoning emphasized the importance of the evidence in the context of the serious charges against the appellant and the overarching public interest in prosecuting such offences. The court's decision underscores the balance between statutory compliance and the practicalities of prosecuting complex criminal cases.

Orders

Orders of the court

1. The application for the exclusion of the telephone intercept evidence is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Kashani-Malaki [2011] QSC 308
PARTIES:	THE QUEEN (respondent) v MORTEZA KASHANI-MALAKI (applicant)
FILE NO/S:	1258/08
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	5 October 2011
DELIVERED AT:	Brisbane
HEARING DATE:	4 October 2011
JUDGE:	Ann Lyons J
ORDER:	1. The application for the exclusion of the telephone intercept evidence is refused.
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – where the accused has pleaded not guilty to trafficking in dangerous drugs and importing prohibited imports – where the accused applies pursuant to s 590AA of the Criminal Code 1899 for a pre-trial ruling that numerous telephone recordings be excluded on the basis that the Australian Crime Commission (ACC) did not comply with the requirements of the Telecommunication (Interception Act) 1979 (the Act) at the time the interceptions were carried out in 2003 and 2004 – whether the ACC sufficiently notified the Managing Director of the carrier of the issue of the warrant in accordance with ss 47 and 60 of the Act – whether the evidence should be excluded Criminal Code 1899 (Qld), s 590AA– Telecommunication (Interception Act) 1979 (Cth); ss 7, 47, 60 R v Bunting and Wagner (No 5) [2003] SASC 253; followed
COUNSEL:	R Richter QC with M Croucher for the applicant G Rice SC with J Hanna for the respondent
SOLICITORS:	Anthony Isaacs Lawyers for the applicant Director of Public Prosecutions (Cth) for the respondent