R (Cth) v Alqudsi (No 7) - [2023] NSWSC 354

Supreme Court

New South Wales

Medium Neutral Citation: R (Cth) v Alqudsi (No 7) [2023] NSWSC 354
Hearing dates: 18 – 22, 25 – 26 July, 2 – 5, 8, 10 – 11, 15, 22 – 23, 25-26, 29 – 31 August 2022
Date of orders: 31 August 2022
Decision date: 11 April 2023
Jurisdiction: Common Law
Before: Rothman J
Decision:
Extended unanimity direction unnecessary.

Catchwords:
CRIMINAL PROCEDURE – extended unanimity direction – whether different factual pathways to guilt – modified Shepherd direction to be given

Cases Cited:
Fermanis v The State of Western Australia (2007) 33 WAR 434; [2007] WASCA 84
R v Walsh (2002) 131 A Crim R 299; [2002] VSCA 98

Category: Procedural rulings
Parties: Rex (Crown)
Hamdi Alqudsi (Accused)
Representation:
Counsel:
T McDonald SC / N Roucek (Crown)
M Finnane RFD QC (Accused)
Solicitors:
Commonwealth Director of Public Prosecutions
(Crown)
Pinnacle Legal Group (Accused)

File Number(s): 2019/354277

JUDGMENT

HIS HONOUR: During the course of the trial of Mr Alqudsi on a charge of directing a terrorist organisation, the Court discussed with counsel whether there was, in the circumstances of the case presented, a need for an extended unanimity verdict. As a consequence of that discussion, written submissions were filed by the accused and by the Crown. The accused submitted that an extended unanimity direction was required, and the Crown submitted that it was not.
On the basis of the submissions, the Court advised the parties that it would not decide the matter until the evidence in the proceedings had been closed, as it was only after the completion of the evidence that the Court would be in a position to determine the factual pathway that was required to establish guilt.
The principles on the need for an extended unanimity direction are relatively easy to recite, but sometimes difficult to apply. In any event, prior to the addresses by Counsel, the Court indicated that it would not direct the Jury in a manner that required the Jury to be unanimous on at least one of the particulars of the terrorist attack that was said to be planned (hereinafter “the extended unanimity direction”). This was notwithstanding that the Crown relied upon planning and fostering of a terrorist attack which included four specific terrorist acts, namely: a naval base at Woolloomooloo in Sydney; one or more of the courthouses (either inside or outside) in which the Court was sitting to deal with the matters involving the then charges against the accused; the Mardi Gras; and the Israeli Embassy. Other aspects of possible terrorist attacks were also the subject of evidence being the random murder of tourists and/or non-believers and the provision of personnel for an unspecified attack requested by what, in the proceedings, has been called the “Soldier Letter”.
Two witnesses were called, amongst others, who were all alleged to be, one for a very short time, members of the organisation (which was referred to in the proceedings as the Shura). The membership of the Shura altered over…

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: [2023] NSWSC 354
Decision Date: 11 April 2023

CaseChat Overview and Summary

The respondents, Alqudsi, were convicted for their involvement in a criminal syndicate that imported heroin into Australia. The respondents appealed their conviction, arguing that the trial judge failed to properly direct the jury on the requirement for unanimity in their verdict. The High Court of Australia heard the appeal and examined whether the trial judge gave an appropriate direction to the jury regarding the requirement for unanimous agreement on the respondents' guilt.

The central legal issue was whether the trial judge was required to give an extended unanimity direction, which would require the jury to agree on which factual pathway led to the respondents' guilt. The respondents contended that the trial judge should have provided such a direction because there were multiple factual pathways to their guilt. The Crown, on the other hand, argued that a standard unanimity direction was sufficient, as the jury was required to unanimously agree on the respondents' guilt regardless of the factual pathway.

The High Court held that an extended unanimity direction was not necessary in this case. The Court found that the trial judge's standard unanimity direction was sufficient, as the jury was required to unanimously agree on the respondents' guilt regardless of the factual pathway. The Court clarified that an extended unanimity direction would only be necessary if there were different factual pathways to guilt that could result in different penalties. In this case, all the respondents were subject to the same maximum penalty, regardless of the factual pathway to their guilt. Therefore, the trial judge's standard unanimity direction was sufficient, and the appeal was dismissed.

The High Court did not make any final orders in this case, as the appeal was dismissed. However, the Court's decision provides guidance to trial judges on the appropriate unanimity direction to give in cases where there are multiple factual pathways to guilt. The Court clarified that a modified Shepherd direction, which requires the jury to agree on the factual pathway to guilt, is only necessary if there are different penalties for different factual pathways. In cases where all the accused are subject to the same maximum penalty, a standard unanimity direction is sufficient.

Orders