R v Taleb (No 2)

The appellant was convicted in the Supreme Court of Victoria of various terrorism offences, including providing support to a terrorist organisation. The appellant appealed against his conviction, contending that the trial judge erred in failing to call an expert witness, Dr Soroush Rafiee, on his behalf. The expert evidence was intended to challenge the prosecution’s expert evidence regarding the relationship between the Islamic State and Islam. The High Court of Australia allowed the appeal and ordered a retrial.

The central issue for the court was whether the trial judge erred in not calling Dr Rafiee as a witness and not cross-examining the prosecution’s expert witness. The court had to determine whether the trial judge’s failure to call Dr Rafiee was a miscarriage of justice. The court also had to decide whether the trial judge erred in not cross-examining the prosecution’s expert witness, A/Prof Hudson, on matters that Dr Rafiee’s report would have revealed. Furthermore, the court had to consider whether the witness was qualified to give evidence concerning the Islamic State.

The court held that the trial judge erred in not calling Dr Rafiee as a witness and not cross-examining A/Prof Hudson. The court found that the trial judge’s failure to call Dr Rafiee was a miscarriage of justice. The court held that the witness was qualified to give evidence concerning Islam, but his evidence concerning the Islamic State was limited. The court held that Dr Rafiee’s evidence could have challenged the prosecution’s evidence and may have affected the outcome of the trial. The court held that the trial judge should have called Dr Rafiee as a witness and cross-examined A/Prof Hudson on matters that Dr Rafiee’s report would have revealed. The court held that the trial judge’s failure to do so was a miscarriage of justice.

The High Court allowed the appeal and ordered a retrial. The court held that the appellant was entitled to a fair trial and that the trial judge’s failure to call Dr Rafiee and cross-examine A/Prof Hudson amounted to a miscarriage of justice. The court held that the trial judge should have called Dr Rafiee as a witness and cross-examined A/Prof Hudson on matters that Dr Rafiee’s report would have revealed. The court held that the appellant was entitled to a retrial.