Razak v The Queen - [2013] HCATrans 20

[2013] HCATrans 020

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B55 of 2012

B e t w e e n -
RIAN ABDUL RAZAK
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 15 FEBRUARY 2013, AT 10.38 AM

MR J.J. ALLEN: If the Court pleases, I appear with my learned friend, MS L.D. REECE, for the applicant. (instructed by Legal Aid Queensland)

MS W.J. ABRAHAM, QC: May it please the Court, I appear with my learned friend, MR J.N. HANNA, for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

FRENCH CJ: Thank you. Yes, Mr Allen.

MR ALLEN: Your Honour, the Commonwealth chooses in which State or Territory of Australia alleged people smugglers will be tried. In those circumstances, public confidence in the administration of justice requires this Court’s attention to significant divergence of approach between State Courts of Appeal as to the proof of guilt in such matters. The judgment in Razak stands alone somewhat uncomfortably, apart from the subsequent judgments of the Queensland Court of Appeal in Zolmin, the South Australian Full Court in Zainudin and the New South Wales Court of Criminal Appeal in Alomalu; uncomfortably, but it still stands.

That is a matter of significance, not only for Mr Razak and his continued incarceration, but also to the administration of justice generally, because although those subsequent judgments take a significantly different and, it is submitted, preferable approach than the court in Razak, Razak has not been overruled or even specifically disapproved in those decisions. In Zolmin ‑ ‑ ‑

FRENCH CJ: It does seem that they depend somewhat upon both the content of the evidence at trial and the approach to the assessment of factual matters arising out of that evidence. You are suggesting ‑ ‑ ‑

MR ALLEN: In my submission, the matter cannot be distinguished on that basis and the injustice alleged by the applicant cannot be dismissed on that basis. The reasons being, and perhaps I will go to that now, in Razak we had a situation of a five to seven day voyage from Surabaya, as Justice Fraser noted over something estimated to be 1200 kilometres to the vicinity of Ashmore Island. In Zolmin there was a four to seven day voyage. The route is unclear from the judgment, but the boat ends up 180 nautical miles north‑west of Darwin and the same distance from Indonesia in the Timor Sea.

In Zainudin there is a three day voyage to near Christmas Island, some 200 nautical miles south of Java and some 900 nautical miles north‑west of the Kimberley coast. In Alomalu the difference between it and Razak are hard to discern at all. As in Razak, it was an approximately six day voyage from Surabaya to the vicinity of Ashmore Reef.

CRENNAN…

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 Razak v The Queen

Details

AGLC: Razak v The Queen [2013] HCATrans 20
Case: [2013] HCATrans 20
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Razak against his conviction for murder. The central dispute concerned the admissibility of evidence obtained from Mr Razak's mobile phone, which had been seized by police.

The High Court was required to determine whether the evidence obtained from Mr Razak's mobile phone was unlawfully obtained, and if so, whether it should have been excluded from admission at trial under the *Uniform Evidence Law*. Specifically, the Court had to consider the application of s 138 of the *Uniform Evidence Law*, which governs the exclusion of improperly or illegally obtained evidence.

The Court reasoned that the police had acted unlawfully in seizing and accessing the contents of Mr Razak's mobile phone without a warrant or his consent. However, the Court held that the admission of the evidence, despite being unlawfully obtained, was not an error that warranted setting aside the conviction. The Court applied the principles of discretionary exclusion under s 138, weighing the probative value of the evidence against the undesirability of admitting evidence obtained in contravention of the law. The Court found that the evidence was highly probative and that its admission was not so unfair to the appellant as to require exclusion.

The appeal was dismissed.

Orders