SUPREME COURT OF QUEENSLAND
CITATION:
R v Kashani-Malaki [2010] QCA 222
PARTIES:
R
v
KASHANI-MALAKI, Morteza
(appellant)FILE NO/S:
CA No 182 of 2009
SC No 1258 of 2008DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
24 August 2010
DELIVERED AT:
Brisbane
HEARING DATE:
30 March 2010
JUDGES:
McMurdo P, Fraser JA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made, Fryberg J dissentingORDERS:
1. Appeal allowed
2. Conviction for trafficking in dangerous drugs, heroin, methylamphetamine, cocaine and MDMA set aside.
3. A retrial is ordered.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF TRIAL JUDGE – appellant pleaded not guilty to one count of trafficking dangerous drugs (count 1) and one count of importing prohibited substances (count 2) – appellant convicted on count 1, jury unable to reach verdict on count 2 – day of verdict, trial judge received note from individual juror – note included details about how deliberations were progressing and sought further directions – trial judge directed bailiff to take note back and direct jury that judge does not want to receive communication from individual jurors and all questions must be given to bailiff – trial judge disclosed receipt of note in open court – did not disclose actual words of note – no submissions from parties on how to direct jury on matters relating to note – whether manner in which trial judge dealt with note was a material irregularity – whether there was no possible doubt that terms of out of court communication could have affected result of trial
EVIDENCE – FACTS EXCLUDED FROM PROOF – ON GROUNDS OF PUBLIC POLICY – AFFAIRS AND DOCUMENTS OF STATE – RELEVANT PRINCIPLES – CROWN PRIVILEGE – judge at pre-trial hearing granted ACC's application to narrow appellant's subpoena requesting documents relating to interception and recording of conversations to those not compromising public interest – judge refused appellant's application to quash or stay indictment if documents not disclosed – whether judge erred in balancing public interest against appellant's interests in allowing full disclosure – whether judge erred in upholding the public interest immunity privilege
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – pre-trial judge held that evidence of telephone intercepts and recordings was admissible evidence – appellant led expert evidence raising doubts about authenticity of tape recordings – whether the evidence of intercepts and recordings should have been excluded from jury's consideration – whether conclusion about accuracy and reliability of recordings involved speculation or was a jury question
Telecommunications (Interception and Access) Act 1979 (Cth), s 61, s 61A
Criminal Code 1899 (Qld), s 617, s 668E(1A)
Criminal Practice Rules 1999 (Qld), r 94
Jury Act 1995 (Qld), s 70Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85, cited
Continue reading R v Kashani-Malaki
Sign in free to access the full text
- AGLC
- R v Kashani-Malaki [2010] QCA 222
- Case
- [2010] QCA 222
- Decision Date
CaseChat Overview and Summary
The court examined whether the trial judge's handling of the note from the juror constituted a material irregularity that could have affected the trial's outcome. The judge received a note from a juror that detailed the progress of deliberations and sought further directions. The judge directed the bailiff to inform the jury that the judge did not want to receive communication from individual jurors and that all questions must be addressed through the bailiff. The trial judge disclosed the receipt of the note in open court but did not disclose its contents. Neither party made submissions on how to direct the jury regarding the note. The court found that the manner in which the trial judge dealt with the note could have influenced the jury's decision-making process, leading to a material irregularity.
Regarding the exclusion of evidence, the court considered whether the judge erred in balancing the public interest against the appellant's right to full disclosure. At a pre-trial hearing, the judge had granted an application to narrow the appellant's subpoena for documents related to intercepted and recorded conversations, ruling that disclosure would compromise the public interest. The appellant argued for the quashing or staying of the indictment if the documents were not disclosed. The court determined that the judge had correctly balanced the public interest and the appellant's interests in allowing full disclosure, and did not err in upholding the public interest immunity privilege.
Lastly, the court addressed the admissibility of evidence of telephone intercepts and recordings. The pre-trial judge had ruled that the evidence was admissible, despite the appellant's expert evidence raising doubts about the authenticity of the tape recordings. The court concluded that the evidence of intercepts and recordings should have been excluded from the jury's consideration, as the conclusion about the accuracy and reliability of the recordings involved speculation rather than being a question for the jury.
The appeal was allowed, the conviction for trafficking in dangerous drugs was set aside, and a retrial was ordered.
Orders
Orders of the court
1. Appeal allowed
2. Conviction for trafficking in dangerous drugs, heroin, methylamphetamine, cocaine and MDMA set aside.
3. A retrial is ordered.
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.