Alqudsi v The Commonwealth - [2015] HCA 49

HIGH COURT OF AUSTRALIA
FRENCH CJ
Matter No S119/2015
HAMDI ALQUDSI  PLAINTIFF
AND
THE COMMMONWEALTH OF AUSTRALIA  DEFENDANT
Matter No S132/2015
HAMDI ALQUDSI  APPLICANT
AND
THE QUEEN  RESPONDENT
Alqudsi v The Commonwealth
Alqudsi v The Queen
[2015] HCA 49
20 July 2015
S119/2015 & S132/2015
ORDER
Matter No S119/2015
1.The proceeding be remitted to the Supreme Court of New South Wales.
2.The proceeding continue in that Court as if the steps already taken in the proceeding in this Court have been taken in that Court.
3.The Registrar of this Court forward to the proper officer of that Court photocopies of all documents filed in this Court.

4.The costs of the Commonwealth's amended summons, this summons, be the costs in the cause remitted.
5.The costs of the proceeding to the date of remission, including the costs of this order, are to be according to the scale applicable to proceedings in this Court and thereafter according to the scale applicable to that Court and in the discretion of that Court.
6.The costs of the plaintiff's summons of 15 July 2015 will be costs in the cause.

Matter No S132/2015
1.The application for removal is dismissed.
2.There will be no order as to costs.

Representation
S B Lloyd SC with D P Hume for the plaintiff/applicant (instructed by Zali Burrows Lawyers)
C L Lenehan for the defendant/respondent (instructed by Australian Government Solicitor and the Commonwealth Director of Public Prosecutions)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Alqudsi v The Commonwealth
Alqudsi v The Queen

Remitter summons – Plaintiff sought declaratory relief that s 7(1)(e) of Crimes(Foreign Incursions and Recruitment) Act 1978 (Cth) is invalid in context of pending criminal proceedings – Whether proceedings should be remitted.
Application for removal – Whether sufficient cause shown to remove pending criminal proceedings – Relevance of principle against fragmentation of pending criminal proceedings.
Words and phrases – "fragmentation of pending criminal proceedings", "sufficient cause".
Judiciary Act 1903 (Cth), ss 40(1)-(2), 44(1).

FRENCH CJ. The plaintiff, Hamdi Alqudsi, has been charged on an indictment dated 7 May 2015 with seven counts of offences against s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) ("the Act"). Each of the counts alleges that between 25 June and 14 October 2013 in Sydney he performed services for another person with the intention of supporting or promoting the commission of an offence against s 6 of the Act, being the entry by that person into a foreign State, namely Syria, with intent to engage in a hostile activity in Syria, in particular engaging in armed hostilities in Syria. Each of the seven counts related to services performed for a different person. The Act was in force at the time of the alleged offences but was repealed with effect from 1 December 2014 by the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth). Section 7(1)(e)…

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 Alqudsi v The Commonwealth

Details

AGLC: Alqudsi v The Commonwealth [2015] HCA 49
Case: [2015] HCA 49
Decision Date: 20 July 2015

CaseChat Overview and Summary

In *Alqudsi v The Commonwealth*, the plaintiff, Mr Alqudsi, sought declaratory relief from the High Court of Australia concerning the validity of section 7(1)(e) of the *Crimes (Foreign Incursions and Recruitment) Act 1978* (Cth) in the context of pending criminal proceedings against him. The plaintiff also sought the remittal of these proceedings. Separately, the Commonwealth applied for the removal of the criminal proceedings into the High Court.

The High Court was required to determine whether the proceedings should be remitted to the Supreme Court of New South Wales, and whether sufficient cause had been shown to remove the pending criminal proceedings into the High Court. A key consideration for the court was the principle against the fragmentation of pending criminal proceedings.

French CJ reasoned that the plaintiff's application for declaratory relief concerning the validity of a provision of the Act, in the context of ongoing criminal proceedings, did not constitute sufficient cause to remove those proceedings into the High Court. His Honour noted the strong principle against fragmenting criminal proceedings by allowing collateral challenges to the validity of the charges or the governing legislation in a separate forum. Consequently, the application for removal by the Commonwealth was dismissed. However, the plaintiff's summons seeking remittal of the proceedings was granted, with the matter to continue in the Supreme Court of New South Wales as if the steps taken in the High Court had been taken there.

Orders

Orders of the court

Matter No S119/2015

1. The proceeding be remitted to the Supreme Court of New South Wales.

2. The proceeding continue in that Court as if the steps already taken in the proceeding in this Court have been taken in that Court.

3. The Registrar of this Court forward to the proper officer of that Court photocopies of all documents filed in this Court.

4. The costs of the Commonwealth's amended summons, this summons, be the costs in the cause remitted.

5. The costs of the proceeding to the date of remission, including the costs of this order, are to be according to the scale applicable to proceedings in this Court and thereafter according to the scale applicable to that Court and in the discretion of that Court.

6. The costs of the plaintiff's summons of 15 July 2015 will be costs in the cause.

Matter No S132/2015

1. The application for removal is dismissed.

2. There will be no order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH CJ

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Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ

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