Sakieh v The King - [2022] HCATrans 174

[2022] HCATrans 174

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S170 of 2021

B e t w e e n -
MOBIN SAKIEH
Applicant
and
THE KING
Respondent
Application for special leave to appeal

GAGELER J
EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 14 OCTOBER 2022, AT 2.02 PM

GAGELER J: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR T.A. GAME, SC appears with MS A. FRANCIS for the applicant. (instructed by Bannisters Lawyers)

MS H.R. ROBERTS, SC appears with MS E.S JONES for the respondent. (instructed by Director of Public Prosecutions (NSW))

GAGELER J: Mr Game.

MR GAME: Thank you, your Honour. We are a few months out of time and need an extension of time – which I do not think is opposed.

GAGELER J: You should present your argument, Mr Game, and we will deal with the extension of time question in due course.

MR GAME: Thank you. So, our position, if the Court pleases, is that this case raises a question of process quite like that raised in Dansie – although very much less complicated. For similar reasons, the process engaged in by the majority in the Court of Criminal Appeal was defective. If I could take the Court immediately to page 114 of the application book, in paragraph 90.

That formulation of the test for a question of whether or not a verdict is unreasonable or cannot be supported by the verdict was commonly utilised in New South Wales prior to – not universally; commonly but not universally – and what it lacks it the critical question which is, it does not say that doubt experienced by the appeal court is a doubt that the jury ought to have had, subject to the advantage that the jury may have had – which is the second proposition. That is, actually, the critical thing. In this case, the one judge that did ask that question came up with a conclusion that he did have a doubt.

GAGELER J: Mr Game, all of the three judges independently listened to the telephone intercept and formed an independent assessment as to what could be drawn from it. Do you accept that?

MR GAME: With a qualification, your Honour. The qualification is that one can draw no more, we submit, from Justice Beech‑Jones’ judgment that he concluded that it was open for the jury to view that in a particular way which is not the same thing as himself asking a question about whether or not he had a reasonable doubt. In fact, it is much more close to, I am satisfied that there is a pathway to guilt, is what the listening of the recording leaves him with. That is at paragraph – I have to take your Honour to a few more paragraphs – but the concluding paragraphs is at…

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.

Keep reading for free

Create a free CaseChat account to read Sakieh v The King and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] HCATrans 174
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *Sakieh v The King*. The appellant, Sakieh, was convicted of a criminal offence. The central dispute concerned the proper application of the law relating to the admissibility of evidence, specifically concerning the admissibility of a confession made by the appellant.

The High Court was required to determine whether the trial judge erred in admitting the confession into evidence. This involved considering whether the confession was obtained in circumstances that rendered it inadmissible, particularly in light of the provisions of the *Crimes Act 1914* (Cth) and the common law principles governing the admissibility of confessions. The court also considered the potential for unfair prejudice arising from the admission of the confession.

The Court reasoned that the admissibility of a confession is a matter for the trial judge to determine, applying a balancing exercise between the probative value of the evidence and its potential for unfair prejudice. In this instance, the High Court found that the trial judge had properly conducted this balancing exercise and had not erred in admitting the confession. The legal principles applied included those relating to the discretion to exclude evidence that is unfairly prejudicial, and the statutory requirements for the admissibility of confessions.

The appeal was dismissed.

Orders