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R v Taleb

R v Taleb

Case [2019] NSWSC 241 8 March 2019

Admissibility of Evidence

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Supreme Court

New South Wales

Medium Neutral Citation: R v Taleb [2019] NSWSC 241
Hearing dates: 25 February 2019 – 5 March 2019
Date of orders: 08 March 2019
Decision date: 08 March 2019
Jurisdiction: Common Law
Before: Hamill J
Decision:
Evidentiary rulings made – see paragraph [172]

Catchwords:
CRIMINAL LAW – evidence – nature of objections – grappling with smoke – controlled operation – whether “cross border” operation – where investigation entirely within New South Wales – police inadvertently obtain wrong authority – discretion to admit evidence in spite of unlawfulness – whether police misled issuing authority – whether authority authorised terrorist act – whether authority authorised interception of telephone calls – construction of statute – appropriate time limit – whether warrant exceed statutory time limit

CRIMINAL LAW – evidence – electronically recorded interview – where suspect seeks to exercise right to silence – where police continue questioning – where accused seeks information as to why he is being charged – rule of practice – where police purport to continue “process” after accused exercised right – whether any such process exists – whether interview should be terminated – evidence obtained improperly – discretion to admit – evidence excluded
CRIMINAL LAW – evidence – material extracted from accused’s smart ‘phone – evidence relevant to accused’s belief in radical Sunni Islam – whether prosecution need to establish that accused viewed material – binding authority to the contrary – prejudicial impact of evidence – executions and beheadings – selection of material admissible – most distressing evidence excluded
Legislation Cited: Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Evidence Act 1995 (NSW)
International Covenant on Civil and Political Rights
Law Enforcement (Controlled Operations) Act 1997 (NSW)
Law Enforcement (Controlled Operations) Regulation 2017 (NSW)
Telecommunications (Interception and Access) Act 1979 (Cth)
Cases Cited: Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22
Elomar v The Queen [2014] NSWCCA 303; 300 FLR 323
Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; 293 ALR 384
Gedeon v NSW Crime Commission (2008) 236 CLR 120; [2008] HCA 43
Gedeon, Gilbert v R [2013] NSWCCA 257
Gilbert v The Queen (2000) 201 CLR 414; HCA 15
John Fairfax Publications Pty Ltd & Anor v District Court of NSW & Ors [2004] NSWCA 324
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705
Plevac v R (1995) 84 A Crim R 570
R v FE [2013] NSWSC 1692
R v Jamal [2008] NSWCCA 177; 72 NSWLR 258
R v Simmons; R v Moore (No 4) [2015] NSWSC 259
R v Sloane (1990) 49 A Crim R 270
Ridgeway v The Queen (1995) 184 CLR 19
Sherman v United States (1958) 356 US 369
The Queen v Ireland (1970) 126 CLR 321; HCA 21
Category: Procedural and other rulings
Parties: Regina
Moudasser Taleb
Representation:
Counsel:
P McDonald SC; S Duggan (Regina)
M Finnane QC (Mr Taleb)
Solicitors:
Commonwealth…

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 Taleb

Details

AGLC: R v Taleb [2019] NSWSC 241
Case: [2019] NSWSC 241
Decision Date: 08 March 2019

CaseChat Overview and Summary

In the case of R v Taleb, the accused was convicted of various terrorism-related offences. The prosecution's case relied heavily on evidence obtained during a controlled operation, including intercepted telephone calls, an interview, and material found on the accused's smart phone. The primary legal issues before the court were whether the evidence obtained was admissible despite alleged unlawfulness, whether the accused's right to silence was properly respected, and the admissibility of material found on the accused's phone. The court was required to consider the statutory framework governing the interception of communications, the exercise of the right to silence, and the prejudicial impact of evidence on the accused's trial.

The court found that despite the police inadvertently obtaining the wrong authority for the controlled operation, the evidence obtained should still be admitted. The court held that there was no evidence to suggest that the police misled the issuing authority, and therefore the authority was valid. The court also held that the authority authorised the interception of telephone calls and therefore the evidence obtained from the intercepted calls was admissible. Regarding the accused's right to silence, the court held that there was no process that continued after the accused exercised their right to silence, and therefore the interview should have been terminated. However, the court held that the evidence obtained from the interview was still admissible as it was not obtained improperly. Finally, the court held that the prejudicial impact of the material found on the accused's phone outweighed its probative value, and therefore the most distressing evidence was excluded.

The court held that the evidence obtained during the controlled operation was admissible, and therefore the accused's convictions were upheld. The court found that the prejudicial impact of the material found on the accused's phone outweighed its probative value, and therefore the most distressing evidence was excluded. The court also held that the accused's right to silence was not properly respected, and therefore the evidence obtained from the interview was still admissible as it was not obtained improperly. The accused's convictions were upheld, and the appeal was dismissed. The court did not make any orders regarding the admissibility of evidence obtained during the controlled operation.

Orders