R v Lodhi - [2006] NSWSC 638

Reported Decision:
199 FLR 328

New South Wales

Supreme Court

CITATION: Regina v Lodhi [2006] NSWSC 638

JUDGMENT DATE :
24 April 2006

JUDGMENT OF: Whealy J at 1

DECISION: Make an order that the witness is not required to give evidence in the trial

CATCHWORDS: Evidence Act (NSW) - s 128(5) - interests of justice: do they require witness to give evidence? Ant-Terrorism Act 1997 (Pakistan) - unfairness to person accused of terrorism offence in pending trial

LEGISLATION CITED: Criminal Code (Cth)
Evidence Act (NSW) 1995
Director of Public Prosecutions Act 1983
Pakistan Anti-Terrorism Act 1997
Companies (NSW) Code

CASES CITED: Cureton v Blackshaw Services Pty Ltd [2002] NSWCA 187 at [37]
Hamilton v Oades (1989) 166 CLR 486 (High Court)
Hamilton v Oades (1987) 11 NSWLR 138 at 153
R v Collisson [2003] NSWCCA 212 paras 28-33

PARTIES: Regina v Faheem Khalid Lodhi

FILE NUMBER(S): SC 2005/1094

COUNSEL: Mr R. Toner SC - Witness Ul-Haque
Mr G. Bellew - Crown
Mr P. Boulten SC; Mr P. Lange - Accused

SOLICITORS: DDP (Commonwealth) - Crown
Michael Doughty - Accused

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

MONDAY 24 April 2006

2005/1094 - REGINA v Faheem Khalid LODHI

JUDGMENT - Application by the Crown for an order requiring that Izhar Ul-Haque give evidence at trial.

1 HIS HONOUR: Izhar Ul-Haque (“Ul-Haque”) was committed for trial on 7 March 2005. On 1 April 2005 he was arraigned before Barr J on an indictment which charged him that, between 12 January 2003 and 2 February 2003, in Pakistan, he intentionally received training in respect to combat and the use of arms from a terrorist organisation, Lashkar-e-Taiba (“LeT”) knowing that LeT was a terrorist organisation. This offence is provided by s 102.5(1) of the Criminal Code (Cth) as it stood in January 2003.

2 The accused entered a plea of guilty and the proceedings were stood over for trial. The trial, however, did not proceed as a consequence of a series of motions filed on behalf of Ul-Haque. These challenged the indictment on a number of bases including a constitutional argument. There were further motions seeking to exclude from the trial three records of interview conducted with Ul-Haque, two in November 2003 and one in January 2004, although these were not determined. The challenges to the indictment were dealt with by Justice Virginia Bell on 8 February 2006. They were unsuccessful. Since that time, appeals have been taken from her Honour’s decision to the Court of Criminal Appeal. These are currently listed for hearing in July 2006. Subject to the fate of those appeals, Ul-Haque’s trial is likely to proceed later this year.

3 I shall say something briefly about the Crown case against Ul-Haque. It seems that on 20 March 2003 he arrived at Kingsford Smith Airport Sydney. He is a citizen of Australia and holds citizenship of Pakistan. He was aged 20 years at the time. The Crown alleged that Ul-Haque was…

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 Lodhi

Details

AGLC: R v Lodhi [2006] NSWSC 638
Case: [2006] NSWSC 638
Decision Date: 24 April 2006

CaseChat Overview and Summary

The case of R v Lodhi involved a Pakistani national who was arrested and charged with terrorism-related offences under Australian law. The case was heard in the Supreme Court of New South Wales. The key issue before the court was whether a witness, who was also a Pakistani national, should be compelled to testify against Lodhi under the Evidence Act (NSW). The accused argued that compelling the witness to testify would be unfair due to the witness's possible exposure to persecution under the Anti-Terrorism Act 1997 (Pakistan). The court had to determine if this potential exposure was sufficient to prevent the witness from giving evidence under section 128(5) of the Evidence Act.

The court considered the potential consequences for the witness if they were compelled to testify. The court examined whether the witness's interests in avoiding persecution would significantly outweigh the interests of justice in having the witness testify. This required a balancing of the witness's rights and the overarching need for a fair trial for Lodhi. The court also needed to consider whether the potential unfairness to the witness was so significant that it would undermine the entire trial process.

After careful consideration, the court found that the potential exposure of the witness to severe penalties under the Anti--Terrorism Act 1997 (Pakistan) was a significant factor that could not be overlooked. The court concluded that the interests of justice did not necessarily require the witness to testify if doing so would result in significant harm to the witness. The court determined that compelling the witness to testify would be unfair and potentially unjust. Consequently, the court ruled that the witness should not be compelled to testify, which had significant implications for the prosecution's case against Lodhi.

The court's decision resulted in a ruling that the witness would not be required to testify in the trial. This decision was based on the potential harm to the witness under the Pakistani law and the need to balance this against the interests of justice. The court's ruling underscored the importance of protecting witnesses from significant harm, even in cases involving serious criminal charges such as terrorism.

Orders