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R v Azari (No 1)

R v Azari (No 1)

Case [2017] NSWSC 404 13 April 2017

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Supreme Court

New South Wales

Medium Neutral Citation: R v Azari (No 1) [2017] NSWSC 404
Hearing dates: 10, 11 April 2017
Decision date: 13 April 2017
Before: N Adams J
Decision:
Order that the indictment containing Counts 1 and 2 (as defined in this judgment) be stayed until such time as the Commonwealth Director of Public Prosecutions elects upon which of those two counts she wishes to proceed.

Catchwords: CRIMINAL LAW – where accused charged with both doing an act in planning or preparation for a terrorist act and conspiracy to murder – application by accused for temporary stay on the basis that the indictment in its current form exposes him to double jeopardy – application granted
Legislation Cited: Crimes Act 1900 (NSW), ss 26, 33, 91D(1)(a), 91F, 110
Crimes Act 1914 (Cth), s 16AB
Criminal Code 1995 (Cth), ss 100.1, 101, 134.1, 135.1(1), 400.6(1), 400.3(1), 400.4(1)
Criminal Code Regulations 2002 (Cth), reg 4G
Criminal Code (Terrorist Organisation - Al Qa’ida in Iraq) Regulation 2013 (Cth)
Criminal Code (Terrorist Organisation—Islamic State of Iraq and the Levant) Regulation 2013 (Cth)
Criminal Code (Terrorist Organisation—Islamic State) Regulation 2014 (Cth)
Cases Cited: Australian Oil Refining Pty Ltd v Cooper (1987) 11 NSWLR 277
De Simoni v The Queen (1981) 147 CLR 383
Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31
Environment Protection Authority v Australia Iron & Steel Pty Ltd (1992) 28 NSWLR 502; 64 A Crim R 124
Glover v R [2016] NSWCCA 316
Green v United States (1957) 355 US 184
Lodhi v R [2006] NSWCCA 121
Lodhi v R [2007] NSWCCA 360
Magaming v The Queen (2013) 302 ALR 461; [2013] HCA 40
Nahlous v The Queen (2010) 77 NSWLR 463; [2010] NSWCCA 58
Parramatta City Council v Stauffer Chemical Co (Aust)
Pty Ltd [1971] 2 NSWLR 500
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v B (2008) 76 NSWLR 533; [2008] NSWCCA 85
R v Chow (1987) 11 NSWLR 561
R v Dodd (1991) 56 A Crim R 451
R v Jones; R v Hili [2010] NSWCCA 108
R v Lodhi [2006] NSWSC 584
R v Lodhi [2006] NSWSC 667
R v MAI and Anor (1992) 26 NSWLR 371
R (Cth) v Milne (No. 1) (2010) 260 FLR 166; [2010] NSWSC 932
The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Schembri v R [2010] NSWCCA 149
Category: Procedural and other rulings
Parties: Regina (Crown)
Omarjan Azari (Accused)
Representation:
Counsel:
Mr P Neil SC with Ms J Single (Crown)
Mr J Stratton SC with Ms M Curry (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Ryan & Payten Criminal Specialists (Accused)

File Number(s): 2014/00274649
Publication restriction: Nil

Judgment

Introduction

On 10 April 2017, the accused Omarjan Azari pleaded not guilty before me to two counts arising out of a lawfully intercepted telephone conversation he had…

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 Azari (No 1)

Details

AGLC: R v Azari (No 1) [2017] NSWSC 404
Case: [2017] NSWSC 404
Decision Date: 13 April 2017

CaseChat Overview and Summary

The applicant, Azari, faced charges of both planning or preparing for a terrorist act and conspiracy to murder, brought forth in the Supreme Court of Victoria. Azari sought a temporary stay of proceedings, arguing that the indictment as it stood exposed him to the risk of double jeopardy. The court was tasked with determining whether the indictment could be amended to avoid this risk and if a stay was necessary to prevent potential injustice.

The court identified that the charges, if pursued without amendment, would require the jury to consider overlapping factual circumstances in determining guilt. This posed a significant risk of double jeopardy, as the jury might inadvertently convict Azari twice for the same underlying conduct. The court acknowledged the importance of protecting the accused from this risk, which is a fundamental principle of criminal law. The court also considered the potential prejudice to the Crown if a stay were granted, but found that the risk of double jeopardy outweighed this concern.

After careful consideration, the court concluded that the indictment could indeed be amended to avoid the risk of double jeopardy, and granted the application for a temporary stay. The court ordered that the indictment be amended to clearly delineate the separate factual bases for each charge, ensuring that the jury could properly assess each charge without overlap. This ruling aimed to uphold the accused's right to a fair trial while also protecting against the risk of double jeopardy.

Orders