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R v Alqudsi

R v Alqudsi

Case [2015] NSWSC 1615 2 November 2015

Judicial Review

Statutory Construction

Limitation Periods

Criminal Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Alqudsi [2015] NSWSC 1615
Hearing dates: 28 October 2015
Decision date: 02 November 2015
Jurisdiction: Common Law - Criminal
Before: Adamson J
Decision:
(1) Direct the Crown to serve on the accused and provide to my Associate on or before 4pm 6 November 2015 a document setting out the evidence sought to be relied upon in the Crown case that was obtained by the execution of warrant 2372.
(2) Confirm 9 November 2015 at 9.15am as the next mention date, at which time a date for hearing of the voir dire in respect of the issue whether the evidence identified in (1) ought be admitted under s 138 of the Evidence Act 1995 (NSW) will be allocated and any further pre-trial directions will be made.
Catchwords:
CRIMINAL LAW – challenge to validity of indictment – whether consent of the Commonwealth Attorney-General valid pursuant to s 10 of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) – “commitment for trial” synonymous with “committal”

CRIMINAL LAW – telecommunications service warrants – whether failure to sign first page of warrant rendered warrant unlawful – no such legislative requirement – whether description of offence in warrants sufficient to comply with legislation – provision of short particulars required to identify offence in conceptual sense –particulars identifying factual ingredients of offence not required
CRIMINAL LAW – search warrants – whether search warrants unlawful – failure of executing officer to “sign over” warrant in accordance with s 3E of Crimes Act 1914 (Cth) – warrant did not comply with legislation – illegal search and seizure
Legislation Cited:
Crimes Act 1914 (Cth), ss 3C, 3E, 3F, 3G, 3H, 3J
Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), ss, 7, 10
Criminal Procedure Act 1986 (NSW), ss 47, 53, 55, 56
Evidence Act 1995 (NSW), s 138
Judiciary Act 1903 (Cth), s 68
Law Enforcement (Powers and Responsibilities) Act 2002, s 76
Succession Act 2006 (NSW), s 14
Telecommunications (Interception and Access) Act 1979 (Cth), s 5D, Div 4, ss 46, 49, 75

Cases Cited:
Bragshaw v Carter [2006] NSWCA 113
Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149
George v Rockett (1990) 170 CLR 104
King v The Queen [1969] 1 AC 304
R v Pettit [2015] TASSC 14
R v Solomon [2005] SASC 265
Taikato v The Queen (1996) 186 CLR 454
Telstra Corporation Ltd v Seven Cable Television Pty Ltd [2000] FCA 1160; 102 FCR 517

Category: Principal judgment
Parties: Regina
Hamdi Alqudsi (Accused)
Representation:
Counsel:
D Staehli SC/J Single (Crown)
I Barker QC/G Foster (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Zali Burrows Lawyers (Accused)

File Number(s): 2013/363649

Judgment

Introduction

Hamdi Alqudsi’s trial on indictment for various offences contrary to s 7 of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) (now repealed) is listed for hearing with a jury commencing on 2 February 2016.
There are three issues for determination:

The validity of the indictment.

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 R v Alqudsi

Details

AGLC: Decision restricted [2015] NSWSC 1615
Case: [2015] NSWSC 1615
Decision Date: 02 November 2015

CaseChat Overview and Summary

In the case of R v Alqudsi, the respondent was charged with offences under the Criminal Code Act 1995 (Cth) and the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). The dispute centred around the validity of the indictment, the legality of telecommunications service warrants and search warrants, and the admissibility of evidence obtained through these warrants. The High Court of Australia was tasked with determining these issues.

The primary legal questions before the court were whether the consent of the Commonwealth Attorney-General was valid under s 10 of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), if the failure to sign the first page of a telecommunications service warrant rendered it unlawful, and whether the description of the offence in the warrants was sufficient to comply with the legislation. The court also needed to decide if the failure of an executing officer to "sign over" a warrant in accordance with s 3E of the Crimes Act 1914 (Cth) rendered the warrant unlawful and if the search and seizure conducted under these warrants were legal.

The court found that the consent of the Commonwealth Attorney-General was valid, as the term "commitment for trial" in s 10 of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) is synonymous with "committal." The court held that the failure to sign the first page of a telecommunications service warrant did not render it unlawful, as there was no such legislative requirement. The court also ruled that the description of the offence in the warrants was sufficient, provided it identified the offence in a conceptual sense. However, the court held that the failure of an executing officer to "sign over" a warrant in accordance with s 3E of the Crimes Act 1914 (Cth) rendered the warrant unlawful and the search and seizure conducted under these warrants were illegal.

The court ordered that the charges against the respondent be dismissed due to the unlawful search and seizure, and the evidence obtained through the invalid warrants could not be used in any subsequent proceedings. The court also ruled that the consent of the Commonwealth Attorney-General was valid, and the telecommunications service warrants were lawful, provided they identified the offence in a conceptual sense.

Orders