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Court of Criminal Appeal 27 August 2021

Dirani v R

[2021] NSWCCA 202

Public order & justice offences
CRIME APPEALS UNREASONABLE VERDICT DIRECT AND CIRCUMSTANTIAL EVIDENCE APPEALS APPEAL AGAINST CONVICTION

Citation: Dirani v R [2021] NSWCCA 202
Court: NSW Court of Criminal Appeal
Date: 27 August 2021
Judges: Bathurst CJ; Price J; N Adams J

Background

The appellant was convicted in the Supreme Court of conspiracy to do acts in preparation for a terrorist act, contrary to ss 11.5(1) and 101.6(1) of the Criminal Code (Cth). The alleged conspiracy involved the appellant and others obtaining a firearm for Farhad Mohammad, who used it on 2 October 2015 to murder Curtis Cheng, a civilian NSW Police employee, outside Police Headquarters in Parramatta.

The Crown case combined direct and circumstantial evidence, including recorded and unrecorded conversations between the appellant and a co-conspirator, surveillance footage, and opinion evidence from a police officer with expertise in surveillance techniques (referred to as CIN 1877). The appellant was sentenced to 28 years' imprisonment with a non-parole period of 21 years.

The appellant sought leave to appeal his conviction and sentence on multiple grounds. The Court of Criminal Appeal unanimously allowed the appeal on the ground concerning CIN 1877's expert evidence, quashed the conviction, and ordered a new trial. The sentence appeal did not require consideration as a result.

  • Whether the verdict was unreasonable and could not be supported by the evidence
  • Whether the Crown impermissibly invited the jury to speculate about the contents of unrecorded conversations
  • Whether CIN 1877's opinion evidence about the appellant's manner of driving constituted admissible expert opinion under the Evidence Act 1995 (NSW)
  • Whether the trial judge erred in admitting an ISIS publication that the appellant had never seen
  • Whether the trial judge erred in permitting the Crown to tender the appellant's version of a recorded conversation from the first trial, which the trial judge treated as an admission under s 87 of the Evidence Act

Decision

Ground 1: Unreasonable verdict. The Court was not satisfied that the jury, acting rationally, ought to have entertained a reasonable doubt as to the appellant's guilt. The jury was required to consider all evidence together rather than in isolation, and the whole of the evidence did not give rise to reasonable explanations other than guilt. This ground was dismissed.

Ground 2: Crown speculation on unrecorded conversations. The Crown was entitled to respond to the defence proposition that no communications existed beyond those recorded. The closing address did not go outside the trial judge's rulings or invite impermissible speculation. This ground was also dismissed.

Ground 3: CIN 1877's expert evidence. The Court found that CIN 1877 held genuine specialised knowledge in surveillance and counter-surveillance, and his evidence describing those techniques was properly based on that expertise. However, portions of his evidence went well beyond this admissible scope. Specifically, his opinions about the appellant's manner of parking were not drawn from any identified expertise. In one instance, CIN 1877 acknowledged that the appellant's parking position was not obviously consistent with acting as a lookout, yet still expressed the opinion that the appellant was performing that role. That conclusion was not grounded in expert skill or judgment and was a matter for the jury alone. The Court held this ground was made out.

Grounds 4 and 5: Tender of ISIS publication and prior trial transcript. The ISIS publication was admitted not for a hearsay purpose but for its relevance to whether the attack was a terrorist act, and no error was found. Regarding the prior transcript, the appellant's former lawyers had authority to tender it on the appellant's instructions, making it an admission under s 87 of the Evidence Act. Its admission was not rendered unfair merely because it put the appellant in a position where he may have felt compelled to explain himself. Both grounds were dismissed.

Proviso. The Court declined to apply the proviso in s 6 of the Criminal Appeal Act 1912 (NSW). CIN 1877's impugned evidence went to a critical part of the Crown case, and it was impossible to assess the extent to which the jury had relied upon it. A substantial miscarriage of justice had occurred, and the conviction was quashed.

Orders Made

  • Appeal against conviction allowed
  • Conviction quashed
  • New trial ordered
  • Sentence appeal did not require consideration

Key Takeaways

  • Expert opinion evidence is admissible only where the opinion is drawn wholly or substantially from the expert's specialised knowledge based on training, study, or experience. An opinion that merely asserts a conclusion without identifying the expertise underpinning it does not meet this standard.

  • Where a police officer with surveillance expertise gave opinions that amounted to speculation about a defendant's purpose, rather than descriptions grounded in that expertise, those opinions were inadmissible regardless of the officer's genuine qualifications in related matters.

  • The Court of Criminal Appeal confirmed that the proviso in s 6 of the Criminal Appeal Act 1912 (NSW) will not be applied where inadmissible evidence touched on a critical element of the Crown case and it is impossible to assess its effect on the jury's verdict.

  • A transcript tendered by defence lawyers on a defendant's instructions in an earlier trial can constitute an admission under s 87 of the Evidence Act 1995 (NSW), and its subsequent tender by the Crown in a retrial is not rendered unfair merely because it creates a forensic dilemma for the defendant.

  • In assessing an unreasonable verdict ground, the whole of the evidence must be considered together. A Crown case that includes individual elements open to innocent explanation will not necessarily be insufficient where the cumulative evidence, taken as a whole, excludes reasonable explanations other than guilt.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), ss 11.5(1), 101.6(1)
- Evidence Act 1995 (NSW), ss 87, 90
- Criminal Appeal Act 1912 (NSW), s 6

Cases:
- Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
- CA v R [2017] NSWCCA 324
- Campbell v R [2014] NSWCCA 175
- Commonwealth v Helicopter Resources Pty Ltd [2020] HCA 16; (2020) 377 ALR 191
- Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
- EM v The Queen (2007) 232 CLR 67; [2007] HCA 46
- Haines v R [2018] NSWCCA 269
- HG v The Queen (1999) 197 CLR 414; [1999] HCA 2
- Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kalbasi v State of Western Australia (2018) 264 CLR 62; [2018] HCA 17
- Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28
- Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334
- Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- R v Birks (1990) 19 NSWLR 677
- R v Dirani (No 3) [2018] NSWSC 882
- R v Dirani (No 29) [2019] NSWSC 64