Medium Neutral Citation: Yazdani v R [2016] NSWCCA 194
Hearing dates: 9 May 2016; 10 May 2016
Decision date: 02 September 2016
Before: Simpson JA , McCallum J and Davies J at [1]
Decision:
Appeal dismissed

Catchwords:
CRIMINAL LAW – supply drugs – multiple charges - large commercial quantities – commercial quantities – knowingly participate in criminal group – appeal against conviction – improperly obtained evidence of finding and seizing drugs – whether evidence should have been excluded – whether entry onto property and inspection of bag without search warrant was a deliberate circumvention of Law Enforcement (Powers and Responsibilities) Act 2002 – whether officers of Australian Crime Commission had reasonable grounds to inspect bag – whether misrepresentation to magistrate for search warrant

CRIMINAL LAW – disclosure of evidence by Crown – whether disclosure of covert listening device – whether miscarriage of justice
EVIDENCE – fresh evidence – expert evidence obtained subsequent to trial – evidence not obtained prior to trial for financial reasons – lack of satisfactory explanation of financial issues – evidence available prior to trial - whether fresh evidence as a result of impecuniosity – whether further evidence would be likely to have caused jury to have a reasonable doubt about guilt of the accused – no reasonable doubt shown on the whole of the evidence
Legislation Cited: Australian Crime Commission Act 2002 (Cth), s 25A
Crimes Act 1900 (NSW), s 93T
Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
Criminal Appeal Act 1912 (NSW), s 12
Evidence Act 1995 (NSW), s 138
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 3, 21
Surveillance Devices Act 2004 (Cth), s 16
Cases Cited: Grey v The Queen [2001] HCA 65; 184 ALR 593
House v The King [1936] HCA 40; 55 CLR 499
Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509
Lawless v The Queen [1979] HCA 49 (1979) 142 CLR 659
R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562
R v Spiteri [2004] NSWCCA 321; (2004) 61 NSWLR 369
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
Category: Principal judgment
Parties: Sahba Yazdani (Appellant)
Regina (Respondent)
Representation:
Counsel:
G Brady SC (Appellant)
P Ingram SC (Respondent)
S Maharaj QC (Australian Crime Commission)
Solicitors:
Nyman Gibson Miralis (Appellant)
Office of the Director of Public Prosecutions (Respondent)
Australian Crime Commission Legal Services (Australian Crime Commission)

File Number(s): 2011/50593
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

15 May 2015

Before:

Woods DCJ

File Number(s):

2011/50593

Judgment OF THE COURT

On 13 October 2014 the appellant was arraigned in the District Court on an indictment that contained 16 counts. The first charge was that he knowingly participated in a criminal group, knowing that his participation contributed to the occurrence of criminal activity, namely drug smuggling.…

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 Yazdani v The Queen

Details

AGLC: Yazdani v The Queen [2016] NSWCCA 194
Case: [2016] NSWCCA 194
Decision Date: 02 September 2016

CaseChat Overview and Summary

In the case of Yazdani v The Queen, the respondent was convicted on multiple charges related to the supply of drugs in large commercial quantities and knowingly participating in a criminal group. The case was heard and determined in the High Court of Australia. The primary issues before the Court were whether evidence obtained without a warrant should have been excluded due to a deliberate circumvention of the Law Enforcement (Powers and Responsibilities) Act 2002, and whether the Australian Crime Commission officers had reasonable grounds to inspect the bag without a search warrant. Additionally, the Court considered whether there was a miscarriage of justice due to the Crown's failure to disclose evidence of a covert listening device and whether fresh expert evidence, obtained post-trial due to financial constraints, could be admitted.

The Court found that the officers' entry onto the property and inspection of the bag without a search warrant was not a deliberate circumvention of the Act, and they did have reasonable grounds to inspect the bag. Regarding the failure to disclose evidence of the covert listening device, the Court concluded that there was no miscarriage of justice, as the evidence was not significant enough to have affected the outcome of the trial. Concerning the fresh expert evidence, the Court held that it was not admissible as it was not obtained due to impecuniosity, and it was available before the trial. The Court found that there was no reasonable doubt about the guilt of the accused based on the whole of the evidence.

In conclusion, the High Court upheld the respondent's convictions, finding that the evidence obtained without a warrant was admissible, and the failure to disclose the covert listening device did not result in a miscarriage of justice. The fresh expert evidence was deemed inadmissible, and there was no reasonable doubt about the guilt of the accused based on the whole of the evidence.

Orders