R (Cth) v Alqudsi (No 3)

[2022] NSWSC 842

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R (Cth) v Alqudsi (No 3) [2022] NSWSC 842

Hearing dates:

20, 21 23 June 2022

Decision date:

24 June 2022

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1)   Stay refused.

(2)   Amendments to record of interview to be made as set out in judgment.

Catchwords:

CRIMINAL PROCEDURE – Stay of proceedings on basis of prejudicial evidence – evidence admissible or not admissible – stay exceptional remedy – proper remedy s137 of Evidence Act 1995 (NSW) – availability of documentation to be admitted to jury at opening – absent agreement not to be made available as distorts weight and not subject to directions and context

EVIDENCE – admissibility of parts of record of interview – rulings issued

Legislation Cited:

Criminal Code Act 1995 (Cth), ss 100.1, 102.1, 102.2
Evidence Act 1995 (NSW), ss 48, 50, 135, 137

Category:

Procedural rulings

Parties:

Regina (Crown / Respondent)
Hamdi Alqudsi (Accused / Applicant)

Representation:

Counsel:
T McDonald SC / N Roucek (Crown / Respondent)
M Finnane RFD QC / (Accused / Applicant)

Solicitors:
Office of the Commonwealth Director of Public Prosecutions (Crown / Respondent)
Pinnacle Legal Group (Accused / Applicant)

File Number(s):

2019/354277

Judgment

1. HIS HONOUR: Following further interlocutory applications, the Court is required to deal with motions of the defendant and/or matters arising as a result of discussion between the parties. For reasons relating to the imminence of the trial, these reasons are in short form.

2. The first issue raised by the defendant is another application for a permanent stay of proceedings. The basis of that application is that the accused will be identified as either a convicted person or a person who is serving time in prison. This arises from questions and answers in the record of interview (MFI 1 of 21 June 2022); exculpatory statements made by the accused; references to the South Coast Correctional Centre and “Supermax”; and his dress in the course of the record of interview.

3. As unfortunate as it may be that the incarceration of the accused may be revealed during the course of the trial, and the fact that he was charged with another offence, this is an unavoidable aspect. First, it is unnecessary for the jury to be informed that the accused was convicted of the other offence.

4. Secondly, the jury will have explained to them that, given the nature of the charge in these proceedings, whether or not the accused was guilty, it would be extraordinary for bail to be granted and, therefore, he would be imprisoned without regard to guilt. Otherwise, the jury will be directed in relation to the obvious matters as to its relevance to the charge with which the jury is dealing.

5. As is made clear in the submissions of the accused (MFI 2 of 21 June 2022), the accused seeks to explain that he was wrong to be involved in previous offences, but that he did not commit the current offence.

6. Simply, if material were sought to be adduced — including questions and answers in the ERISP and/or record of interview — that material is either admissible or not. If admissible, subject to the provisions of s 137 and possibly s 135 of the Evidence Act 1995 (NSW), they can be tendered. Of course, the evaluation under s 137, or the exercise of discretion under s 135, would render the material inadmissible.

7. If the material is not admissible, the question and answer cannot be tendered. There is no basis for the extraordinary step of a stay of the prosecution, either temporary or permanent.

8. As to the matters that have been the subject of agreement between the parties and/or lack of agreement, the Court makes the following comments. First, the parties, and in particular the accused, should be congratulated on seeking to shorten the trial.

9. Secondly, no other order is made in relation to the Agreed Facts proposed to be formulated by the parties. If they are agreed, they can be tendered and disclosed to the jury. If not, then, to the extent the evidence is relevant and admissible, it is for the Crown to prove the material, as advised.

10. To the extent that the failure to agree relates to a lack of knowledge of dates or other details that are otherwise uncontested, I again urge use by the parties of ss 48 and 50 of the Evidence Act.

11. Other questions arise as to the relevance of certain documents in the proposal for agreed facts and, to a lesser extent, in the Crown Case Statement. The offence in question is an offence under s 102.2 of the Criminal Code Act 1995 (Cth) (hereinafter “the Criminal Code” or “the Code”) and requires proof of:

• direction;

• of a terrorist organisation; and

• knowledge that it is a terrorist organisation.

12. A terrorist organisation is an organisation, directly or indirectly engaged in the preparation, planning, assisting a terrorist act or an organisation that has been prescribed: s 102.1 of the Code. A terrorist act (defined by s 100.1) is action or threat of action with intention to advance a political, religious or ideological cause and the action or threat is made with the intention of coercing or influencing by intimidation, the Government of the Commonwealth, a State, Territory or foreign country or intimidating the public or a section of it.

13. Further, the action, which is carried out or threatened, must: cause serious harm that is physical harm to a person; serious damage to property; a person’s death; endangerment of a person’s life, other than the life of the person taking the action; create a serious risk to the health and safety of the public or a section of it; or, somewhat irrelevantly for present purposes, seriously disrupts electronic, telecommunications or financial system and the like. However, such action is not terrorist act if it is merely advocacy, protest, dissent or industrial action and is not intended to cause serious harm that is physical harm, a person’s death, the endangerment of life of another, or a serious risk to the health and safety of the public.

14. As a consequence of those definitions, the affiliation to the Islamic State, which is sought to be proved by the Crown, may indirectly affect the probability of the existence of a fact in issue in the proceedings, particularly when taken together with other evidence.

15. As a consequence, the facts in paras [39] and [40] of MFI 1 of 21 June 2022 are relevant. Further, the probative value is not outweighed by its prejudicial effect, particularly because any prejudice can be overcome by appropriate directions.

16. As to the relevance of paras [39], [40], [41], [42] and [44] of the MFI 1 of 21 June 2022, each of them is relevant. I accept the submissions that had been filed in relation to an earlier argument of like kind that are contained in MFI 5 of 16 July 2021, particularly at paras [162] to [169], inclusive, and at [174] to [176] inclusive.

17. Each of the paragraphs is relevant because they go to the operation of the Shura (the Consultative Council) after 2013 and the conduct of the members of the Shura, which, it is alleged, fit within the definition of terrorist act as earlier outlined.

18. In my view, there is no unfair prejudice associated with this material that cannot be overcome by appropriate directions from the Court.

19. In particular, in relation to para [44], the letter is relevant because of its content and the fact that it was addressed to and seen by the accused and may, in that regard, directly or indirectly affect the probability of the existence of a fact in issue, being that the Shura, of which it is alleged the accused was the director, was engaged in a terrorist act.

20. An issue arose during the course of the preliminary matters as to the distribution to the jury of the record of interview, transcripts of telephone intercepts and/or recordings. In my view, the record of interview and the transcript of telephone intercepts and recordings should not be distributed to the jury at the opening, nor prior to evidence being adduced, in proper form, unless there is agreement by the accused and/or the parties.

21. The distribution of the material to the jury, as originally proposed, would give the material a weight that it ought not otherwise bear and allow the jury to read the material uninformed by any directions by the Court or the context in which the evidence has been obtained. I acknowledge that the Crown accepts, essentially, that aspect.

22. There are a number of matters dealing with the record of interview, some of which were first raised and then withdrawn. In that category is question-and-answer 212, to which, as I understand it, the objection is now withdrawn. The basis of the objection was the reference to Supermax and the attack on Curtis Cheng.

23. In any event, it seems, on the face of it, the question-and-answer is exculpatory rather than prejudicial, other than to the extent that it reveals that the accused was in prison at the time, which can be explained innocuously. The same issue arises in relation to question-and-answer 256, to the extent that objection is taken to that question.

24. The next issue relates to question-and-answer 597. I accept the proposition of the Crown that the words “at least to me” should be deleted. The question is one that puts an allegation of affiliation to Islamic State to the accused and, to the extent that it is prejudicial, it is not unfairly so. The accused explains that he was unaware of the full import of the conduct of Islamic State.

25. Objection is taken to question 690. The Crown does not press the question and answer. Similarly, in relation to 701. The record of interview will be edited appropriately.

26. Objection is taken to question 724. The objection is on the basis of the expression of opinion by the questioner. Obviously, there are times when, in putting an allegation and seeking comment, a questioner will urge a particular state of mind.

27. Nevertheless, I accept that there is some unfair prejudice associated with the terms of the question. I reject the second sentence starting with the words “what I’m saying” until the words “I’m saying that.” As a consequence, the record of interview should be amended so it reads:

“I understand what you’re saying. I’m not asserting here that you had direct involvement ...”.

28. The next objection is to question 798-799. The Crown does not press the question and answer to 798, which is an appropriate concession and with which I agree. As to 799, I accept that all but the first sentence of the question in 799 and the answer may be admitted.

29. In relation to question-and-answer 840, the Court is unclear what the final status of this issue is. In any event, the Court takes the view that the question-and-answer is inadmissible as its unfair prejudice, or the danger of it, outweighs its probative value. Further, it is an expression of opinion as to the status of the investigation, which is not relevant to any issue with which the jury is required to deal.

30. Objection is taken to questions and answers 847 through to 854, inclusive. The Crown does not press these questions and answers with which concession I agree.

31. The next issue relates to questions and answers 894 and 895. These questions and answers are part of a line of questions relating to the “Soldier Letter” (Exhibit C on the Voir Dire of 23 June 2022), mentioned earlier in these reasons. Question-and-answer 894 is admissible.

32. To the extent that it refers to prison, it is a reference to the author of the letter, who is not the accused. The Crown does not press question-and-answer 895. However, given its content, I reserve to the accused the right to withdraw the objection and/or to cross-examine on the comment.

33. The penultimate objection to the record of interview relates to questions 926-99. It is necessary to set some context.

34. An explanation given by the accused regarding the relationship (or lack of it) between him and foreign incursions, for which he was charged, and the Islamic State to which there was some form of allegiance, was that the accused did not wish to cause harm in Australia. There is an issue associated with the change in the accused’s beliefs to Sufism.

35. Question-and-answer 926 has the agent asking questions to the effect that if “someone genuinely cared about the society in Australia” something would be said to police or agents. The answers flow from earlier questions in which the accused makes clear that he disregarded the letter; didn’t take any notice of it and then says:

“I don’t know what his intentions are or what he’s done-being very clear what’s going on and, you know, so obviously I disregarded it.”

36. In my view question 926, which is not answered (and it is the answer that is the evidence; not the question) is inadmissible in its entirety. I accept that the Crown does not press the first and second sentence of question 927 so that the question will start with “There’s content” and I accept that proposition. I would on that basis, allow the remainder of question 927 and I allow questions 928, 929 and the answers thereto.

37. The last aspect of objections to the record of interview are two questions and answers, 936 and 937. The Crown does not press the words “it doesn’t cut it for me to say” in the middle of question 936. I accept that concession.

38. The foregoing context to which the Court has referred, as to the benevolent motivation in aligning with Islamic State and/or the Shura, informs the nature of question 937, whether it possesses any prejudice, and the ruling. But for the words not pressed by the Crown, I would allow the question and answer to 936 and the answer to 937. I do not allow the question in 937.

39. I rule in accordance with the foregoing reasons.

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Amendments

13 April 2023 - Publication restriction lifted.

Decision last updated: 15 May 2023