Khattabi v ZZ[2025] QCA 7

[2025] QCA 7

COURT OF APPEAL

BOND JA

BROWN JA

WILLIAMS J

Appeal No 12130 of 2024

SC No 10832 of 2024

YAHYA KHATTABI Appellant

v

ZZ Respondent

BRISBANE

MONDAY, 10 FEBRUARY 2025

JUDGMENT

BOND JA:  Section 686 of the Criminal Code provides that, with the leave of the Supreme Court, any person may present an information against any other person for any indictable offence alleged to have been committed by that other person.  Before this court, the appellant seeks to overturn the order of the primary Judge refusing him leave to present an indictment charging a senior corporate executive with the offence of conspiracy to murder.

The appellant says that the primary Judge erred in assessing the evidence which he had presented, and in particular, because the primary Judge ignored the circumstantial evidence and the reasonable inferences which the appellant suggested should be drawn from that evidence.  There is no need for any detailed discussion of the evidence.  The inferences which the appellant seeks to draw are not inferences which any reasonable person could draw.  The primary Judge did not make any error.

The primary Judge was entirely correct to observe the appellant’s evidence:

The views held by Mr Khattabi do not amount to evidence.  [They are] nothing more than what he thinks occurred ... there is nothing in this material at all which even remotely approaches any admissible evidence that there is any prima facie case of an agreement to commit the offence of murder, or any overt act taken by the respondent in furtherance of that agreement.  There is nothing in any of the material provided which gives rise to even a suspicion, let alone a prima facie case.  Much of what is said is scandalous; much of what is said is vexatious; none of it is supported by any other independent evidence.

His Honour was correct to conclude that, quite apart from any other discretionary considerations, the inadequacy of the appellant’s evidence necessitated the refusal of the leave he sought.

The appellant says that the primary Judge erred in concluding that it was also fatal to his application that he had failed to obtain the consent of the Attorney-General to the private prosecution of the offence of conspiracy to murder.

It may be arguable that the conditional prohibition on institution of prosecutions for conspiracy expressed in s 541(2) should not be regarded as imported into s 686 by the operation of s 686(5).  Given the nature and purpose of s 686 (to which some consideration was given by Holmes J, as the former Chief Justice then was, in Gilbert v Volkers [2005] 1 Qd R 359), it seems to be, at least, arguable that s 686(5) is intended to apply for an information for which leave to present has been obtained, and that it may be inapposite to regard it as importing a further hurdle to the presentation of such an information.

However, I would postpone resolution of that question of construction to a case which otherwise raised an arguable factual case for the grant of leave pursuant to s 686(1).  The insurmountable problem for the appellant in the present case is that the application was always doomed to failure because of the inadequacy of the evidence which he had placed before the court in support of the application.

The appellant also raised a complaint about procedural fairness.  The complaint seems to be that he was not given sufficient notice by the respondent of the legal argument advanced in relation to s 541.  There is nothing in this complaint.  In any event, the approach I have taken to the resolution of that argument renders irrelevant any complaint about surprise.

The appellant raised arguments about bias of the primary Judge.  On the evidence, they were entirely unfounded and argued by assertion in this court, rather than by reference to the law applicable to that subject.  It was entirely unsurprising that the primary Judge gave short shrift to the appellant’s factual argument before him.  No error has been demonstrated.

It remains to note that, by his appeal, the appellant also seeks to overturn the order which the primary Judge made that the affidavits of the appellant be sealed and marked not to be opened without an order of a Judge.  The primary Judge made no error in making that order.  Contrary to the appellant’s assertion before us, the affidavits plainly expressed scandalous conspiracy theories as though they were facts.  The primary Judge’s order was an unremarkable exercise of power pursuant to rule 440 of the Uniform Civil Procedure Rules.

I would order that the appeal must be dismissed with costs.

BROWN JA:  I agree with the reasons given by Justice Bond and his proposed order.

WILLIAMS J:  I also agree with the reasons of Justice Bond and the proposed order.

BOND JA:  The order of the court is the appeal is dismissed with costs.

…

BOND JA:  …  Subsequent to the reasons of the court and the orders made by the court dismissing the appeal, the appellant sought to change an order previously made by the President of the Court of Appeal in relation to this matter.  Her Honour ordered that the appeal be listed as “Khattabi v ZZ”, thereby anonymising the name of the executive the subject of the application made by the appellant below.

The application was resisted – correctly, in my view – on the basis that the way in which the court has dealt with the appeal reveals the court’s agreement with the view taken by the primary Judge, that the proposed information was unfounded by any evidence.  The sealing up of the affidavits on the basis that they contained scandalous material supports the continuation of the anonymisation of the respondent.  I would reject the application.

BROWN JA:  I agree with the reasons of Justice Bond and the order proposed.

WILLIAMS J:  I also agree with the reasons of Justice Bond and the order proposed.

BOND JA:  The oral application by the applicant to change the name of the proceeding is dismissed.