Sleiman v The Queen [2012] HCATrans 200 - [2012] HCATrans 200

[2012] HCATrans 200

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M175 of 2011

B e t w e e n -
MIRVAT SLEIMAN
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 AUGUST 2012, AT 1.01 PM

MR D.A. DANN: If the Court pleases, I appear on behalf of the applicant. (instructed by Melasecca, Kelly & Zayler)

MR B.L. SONNET: If the Court pleases, I appear for the respondent. (instructed by Director of Public Prosecutions (Vic))

HAYNE J: Yes, Mr Dann.

MR DANN: If the Court pleases, it is submitted that this application raises both a specific issue in respect to an individual miscarriage of justice in the applicant’s case and a general issue arising in relevance to the application of the principles set out in R v Darby. If I can deal with the specific issue first, the instant case, the alleged miscarriage, it is submitted that this is in fact one of those cases referred to in Darby where the evidence against one individual, one co‑accused, is in fact overwhelming, and a jury which is directed that they must either convict or acquit both may find it practically impossible to sustain and act on a reasonable doubt in respect to the other.

HAYNE J: Is not the central difficulty you have in this case that there was a recording of the conversation that was the formation of the conspiracy?

MR DANN: Yes, your Honour, I was going to concede that that formed the centrepiece of the case against both. But, the battleground really was, well, how is that phone call to be interpreted, and the contentions were being made in respect to this applicant; well, this is a woman, a somewhat mentally fragile woman, responding in that particular conversation in a way that she does, but not evidencing a genuine agreement to follow through, and indeed, the surrounding evidence was that indeed there was surrounding evidence that she had in fact made contrary indications by way of assertion and comment to the co‑accused about that particular phone call that he was speaking rubbish and he should not have been speaking it, but that is how the defence was categorised.

The point I am making, to interpret that conversation and whether that conversation was evidence of a genuine agreement, there was other evidence led in this trial, and most of that other evidence related to the co‑accused, so that there was a body of evidence, it was submitted, that related to that co‑accused which did not relate to this applicant. I just want to briefly take the Court through it. As against the co‑accused, there was evidence of a past act of violence in the lead up to the formation of this alleged conspiracy.

In that particular incident, which is said to be January, so we are dealing with the…

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.

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Details

Case: [2012] HCATrans 200
Decision Date

CaseChat Overview and Summary

In *Sleiman v The Queen* [2012] HCATrans 200, the High Court of Australia considered an application for special leave to appeal against a decision of the Court of Criminal Appeal of New South Wales. The applicant, Mr Sleiman, had been convicted of a number of offences, including armed robbery and assault occasioning actual bodily harm.

The central legal issue before the High Court was whether the applicant's grounds of appeal to the Court of Criminal Appeal had been properly considered and determined. Specifically, the applicant contended that the Court of Criminal Appeal had failed to adequately address his arguments concerning the admissibility of certain evidence and the fairness of his trial.

Hayne and Crennan JJ granted special leave to appeal. Their Honours indicated that the application raised arguable points of law regarding the proper approach to appeals against conviction where issues of evidence and trial fairness are in contention. The Court did not provide detailed reasons for its decision to grant special leave at this stage, but the granting of leave signifies that the High Court will proceed to hear the substantive appeal.

Orders