R v Azari (No 7) [2018] NSWSC 1680

R v Azari (No 7) [2018] NSWSC 1680

Calls 5, 15 and 39 had only low relevance and the inferences the Crown sought to draw from them depended on accepting the truth of the assertions made by Alqudsi and Baryalei. If not admitted for a hearsay purpose they were not relevant in the way relied on, and if admitted for that purpose they were inadmissible hearsay. The Crown's reliance on s 87(1)(c) could not be sustained because the alleged common purpose was not the common purpose the subject of the proceedings. For call 201, only the fact of the call, subscribers and participants were admissible; the contents were too vague to rationally affect a fact in issue.

Jurisdiction
Australia
Judgment Date
02 November 2018
Procedural Posture
Criminal Proceeding / Voir Dire Ruling on Admissibility of Telephone Intercept Evidence Before Retrial
Outcome
The telephone intercept evidence comprised of calls 5, 15, 39 and 201 was ruled inadmissible.
Legal Topics
['admissibility' 'relevance' 'hearsay' 'telephone Intercept Evidence' 'common Purpose Admissions' 'terrorist Act Preparation or Planning']
['evidence' 'criminal Law'] ['admissibility' 'relevance' 'hearsay' 'telephone Intercept Evidence' 'common Purpose Admissions' 'terrorist Act Preparation or Planning']

Case Brief

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Procedural Posture

Criminal Proceeding / Voir Dire Ruling on Admissibility of Telephone Intercept Evidence Before Retrial

Legal Issues

  1. 1 ["Whether third-party telephone conversations to which the accused was not a party were relevant to the accused's state of mind during the alleged 15 September 2014 telephone conversation." 'Whether calls 5, 15 and 39 were inadmissible under the hearsay rule or admissible for a non-hearsay circumstantial purpose.' 'Whether calls 5, 15 and 39 were admissible under s 87(1)(c) of the Evidence Act 1995 (NSW) as representations made in furtherance of a common purpose.' 'Whether the contents of call 201 were relevant and admissible.']

Ratio Decidendi

Calls 5, 15 and 39 had only low relevance and the inferences the Crown sought to draw from them depended on accepting the truth of the assertions made by Alqudsi and Baryalei. If not admitted for a hearsay purpose they were not relevant in the way relied on, and if admitted for that purpose they were inadmissible hearsay. The Crown's reliance on s 87(1)(c) could not be sustained because the alleged common purpose was not the common purpose the subject of the proceedings. For call 201, only the fact of the call, subscribers and participants were admissible; the contents were too vague to rationally affect a fact in issue.

Court Disposition

The telephone intercept evidence comprised of calls 5, 15, 39 and 201 was ruled inadmissible.

Orders

  • ['The telephone intercept evidence comprised of calls 5, 15, 39 and 201 are inadmissible.']