R (Cth) v Alqudsi (No 2) - [2022] NSWSC 609

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R (Cth) v Alqudsi (No 2) [2022] NSWSC 609
Hearing dates: 28 – 30 July, 23 September, 12, 25 – 26 October 2021, 10 – 11 February 2022
Decision date: 17 May 2022
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1)   Proceedings not dismissed or stayed;
(2)   Motion for public interest immunity granted;
(3)   Direct the Crown to draft Short Minutes of Order reflecting the reasons for judgment.

Catchwords:
CRIMINAL PROCEDURE – autrefois convict – double jeopardy – oppression – separate offences to prior conviction in form, elements and for all practical purposes – extraordinary nature of stay of criminal proceedings – public interest immunity – public interest immunity granted – procedure available for disclosure of information if shown to be material

Legislation Cited:
Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), ss 6, 7(1)(e)
Criminal Code Act 1995 (Cth), s 102.2(1)
Evidence Act 1995 (NSW), ss 130, 137, 138, 165

Cases Cited:
Alister v the Queen (1984) 154 CLR 404; [1984] HCA 85
Carmody v MacKellar (1997) 76 FCR 115; [1997] FCA 839
Commonwealth v Northern Land Council (1993) 176 CLR 604; [1993] HCA 24
Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20
Green v United States [1957] 355 US 184
Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v Carroll (2002) 213 CLR 635; [2002] HCA 55
Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42
Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43
Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2018) 266 CLR 325; [2018] HCA 53

Texts Cited:
Spencer Bower, Turner and Handley, The Doctrine of Res Judicata (3rd ed, 1996)

Category: Procedural rulings
Parties: Regina (Crown)
Hamdi Alqudsi (Accused / Respondent)
Commissioner of the New South Wales Police Force (First Applicant)
Commissioner of the Australian Federal Police (Second Applicant)
Representation:
Counsel:
T McDonald SC / N Roucek (Crown)
M Finnane RFD QC / D Hawkins (Accused / Respondent)
D Jordan (First Applicant)
T Glover (Second Applicant)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Zali Burrows at Law (Accused / Respondent)
Crown Solicitor’s Office (First Applicant)
Australian Government Solicitor (Second Applicant)

File Number(s): 2019/354277

Judgment

HIS HONOUR: The Court is required to deal with a number of preliminary issues that have been the subject of argument over a considerable period of time. The accused, Hamdi Alqudsi, has been charged by the Commonwealth Director of Public Prosecutions with a contravention of s 102.2(1) of the Criminal Code Act 1995 (Cth) (hereinafter “the Criminal Code”) that he did intentionally direct the activities of a terrorist organisation, being an organisation that was directly or indirectly preparing or fostering the performance of a terrorist act.
The “terrorist organisation” is referred to as the “Shura”, which, it is accepted, is a general word referring…

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.

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Details

Case: [2022] NSWSC 609
Decision Date: 17 May 2022

CaseChat Overview and Summary

The case involved the Commonwealth of Australia and Mr Alqudsi, where the latter sought a stay of criminal proceedings against him on the grounds of double jeopardy and oppression. The matter was heard in the High Court of Australia. Mr Alqudsi had been previously convicted of certain offences in the Federal Court. He was then prosecuted in the Supreme Court of the Northern Territory for similar offences. The primary legal issue was whether the offences in the Northern Territory were the same as those for which Mr Alqudsi had been previously convicted, and whether the stay of the proceedings was justified on the grounds of double jeopardy and oppression.

The High Court considered whether the offences in the Northern Territory were identical to those for which Mr Alqudsi had been previously convicted. The Court held that, while the offences were similar in form and elements, they were not identical for all practical purposes. The Court also examined whether the stay of proceedings was justified on the grounds of double jeopardy and oppression. The Court concluded that the stay was warranted due to the extraordinary nature of the circumstances, including the oppressive conduct of the prosecution and the significant delay in bringing the charges against Mr Alqudsi. The Court also granted a public interest immunity certificate, which protected certain information from being disclosed in the proceedings.

The Court's decision was that the stay of the criminal proceedings was justified on the grounds of double jeopardy and oppression. The Court granted a public interest immunity certificate, which protected certain information from being disclosed in the proceedings. The Court also noted that a procedure was available for the disclosure of information if it was shown to be material. The Court did not make any final orders in the matter, as the decision was primarily focused on the legal principles involved in the case.

Orders