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 returning to Australia after having undergone a 21-day period of training at a LeT camp in Pakistan. On his arrival in Sydney, his baggage was subject to search and certain books and documents were found in his possession. They were seized by customs officers and handed to members of the Australian Federal Police Force. The Crown case against Ul-Haque is that in January 2003 LeT was an organisation that was engaged in preparing, planning, assisting or fostering the killing of Indian soldiers in Kashmir in order to advance a political religious or ideological cause, namely the restoration of control of Indian occupied Kashmir to Muslims.

4 The Crown case against Ul-Haque at trial will substantially depend on the contents of the three interviews between Ul-Haque and the Australian Federal Police, which I have identified earlier. It is common ground in the present proceedings that, should those interviews be excluded by the Court, the Crown will be unable to proceed with the charges against Ul-Haque.

The case against the accused

5 It is necessary to say something of the case against the accused in the present matter.

6 The Crown case asserts that in about May 2003 one Willie Brigitte, a French National, arrived in Australia. The Crown asserts that Brigitte, in about October 2001, had undertaken training at Paramilitary camps in Pakistan occupied Kashmir. These camps were operated by the terrorist organisation, Lashkar-e-Taiba (“LeT”). The Crown will endeavour to prove that LeT is and was in October 2001 a terrorist organisation with a primary focus upon the removal of Indian security forces from India controlled Kashmir. It has been listed by the Commonwealth Government as a proscribed terrorist organisation since November 2003. The Crown case will endeavour to establish that LeT provided Jihad education and military training to fundamentalists Muslim groups, as well as to individual foreigners. The latter group would be expected, at the conclusion of their training, to return to their own countries and apply their training to fight against the oppression of Muslim communities generally and to establish a Muslim State in their countries through Jihad.

7 Brigitte arrived in Australia on a three-month tourist visa on 16 May 2003. He was apprehended on 9 October 2003 and detained on the basis of alleged immigration violations. He was subsequently deported to France on 17 October 2003. Brigitte was charged by French authorities with criminal conspiracy in preparing for terrorist actions and forgery of administrative documents in relation to a terrorist undertaking. The arrest of Brigitte and his presence in Australia became the subject of very intense media scrutiny in 2003.

8 The Crown case is that the accused is a Pakistani born Australian citizen who holds a Degree in Architecture from the University of Sydney as well as a Certificate of Project Management from the Sydney Institute of Technology. The Crown alleges, and it is critical feature of the Crown case, that between May and October 2003 there was an association between the accused and Brigitte. The Crown proposes to lead evidence to enable it to argue that it is to be inferred that the relationship between the accused and Brigitte, including their common association with the telephone service of a person mutually known to them in Pakistan, was an illicit and covert one. It was connected with the preparation for one of a number of possible terrorist acts in Australia. It will be part of the Crown’s circumstantial case against the accused that the association between the two men is to be taken as evidence in support of each of the four counts in the indictment. The Crown will argue that the relationship and its covert nature give context to the actions of the accused and bear essentially on his knowledge and intentions.

9 The association between the accused and Brigitte is said to involve a number of situations. First, the Crown case is that the accused provided Brigitte with a pre-mobile telephone service in a false name. This service had been obtained by the accused on 6 May 2003 and it is alleged that the accused used this service in communications with Brigitte. Secondly, there was a telephone contact between Brigitte’s telephone number on 7 May and the “mutual” Pakistani number. Thirdly, there was a call from Brigitte’s French telephone number to the Australian telephone service in a false name. There was a further call between these two services on 13 May 2003, the day before Brigitte left for his journey to Australia. Thirdly there will be evidence to suggest that the accused was expecting Brigitte’s arrival in Australia from New Zealand. This is said to sustain an inference about contact between the two men. Fourthly, there were a total of 19 telephone calls from the Brigitte French number to the “mutual” Pakistani number between 12 March and 14 May 2003. Fifthly, after the arrest of Brigitte, there is evidence from which it may be inferred that the accused rang the “mutual” Pakistani number on 22 October 2003. Sixthly, there was the evidence of the witnesses Ahmad and Altaf in relation to visitors who came to the Boorea Avenue Lakemba premises to see Brigitte. Seventhly, there was other evidence regarding telephone calls both on the numbers I have indicated and from a further telephone service in the false name of “John Huck”. There is no need for me to detail all of these matters for the purposes of this background material. The association between the accused and Brigitte is an important feature of the Crown case.

Evidence against the accused

10 On 3 October 2003, a male person purchased two maps of the Australian Electricity Network, along with other associated literature, from the Electricity Supply Association of Australia Limited. Access to such information is restricted to those with a legitimate reason to do so. The person who purchased the material gave the name “M Rasul” of the firm “Rasul Electrical” along with a false address and telephone number. The order form, the receipt and some of the literature purchased were later found during the course of a search of the accused’s workstation at his place of employment. The Crown case is that this material was not related to any legitimate purpose connected with the accused’s employment. In addition, files were downloaded from the accused’s desktop computer, which showed that he had conducted a search on the Internet using the words “Electricity Australia”. There was also a partial image of one of the maps purchased found on a computer seized from the accused’s home at the time of his arrest.

11 In relation to the first count in the indictment, it is the Crown case that the accused was responsible for the collection of the maps and that in doing so, there existed a connection (of which he was aware) between the maps, and the preparation for a terrorist act namely, the bombing of part of the electricity system. There is a specific body of evidence identified in the Crown statement, which it is said, will amount to a powerful circumstantial case demonstrating the connection between the maps and the preparation for an alleged terrorist act. This includes written material in the URDU language found at the accused’s workstation relating, inter alia, to the making of explosives. There will also be evidence alleging that in circumstances of false identification, the accused made enquiries of Deltrex Chemicals regarding chemicals, which were capable of being used as ingredients for explosives. There is also evidence of a conversation between Ms Kenny, the accuser’s principal at his place of employment, and the accused relating to the list from Deltrex Chemicals. This conversation will be relied on to point to deception by the accused and to demonstrate that he was attempting to conceal his true purpose from his employer.

12 Finally, the Crown relies on documents, DVD’s; on computer files seized from the home or office of the accused in October 2003 and April 2004. The Crown alleges that those show the accused had an interest in violent Jihad, martyrdom, the manufacture of explosives and incendiary devices and the selection of possible targets for a terrorist act.

13 In relation to the second count in the indictment, the Crown will rely on the enquiries allegedly made by the accused in relation to the Deltrex Chemical material. The Crown will also rely on the written material found in the URDU language at the accused’s workstation relating to the making of explosives and poisons. When translated the pages were found to contain instructions in respect of:

· How to set a fire, including the ingredients required to do so;

· How to make various kinds of explosives, a hand grenade and a “time pencil” (which is a timing device for explosives);

· Urea Nitrate and Potassium Chlorate as explosives;

· Cyanide gas;

· Poisons made from ordinary household ingredients;

· Matters under the heading of “intelligence” including references to “agent handler”, “fifth column”, “dead drop”, “live drop” and “safe house”;

· Recipes for “invisible ink”.

14 The Crown will, or at least may, lead expert evidence of the use to which these various chemicals can be put, as well as evidence concerning the various matters of “intelligence” which appeared in the documents. In relation to the second count the Crown will also rely upon the general body of circumstantial evidence and other material, which I have already identified.

15 In relation to count 3, investigators retrieved certain material which had been in the possession of the accused. The material was “dumped” by the accused in a waste bin in circumstances evincing, according to the Crown case, a consciousness of guilt. This material contained a total of 37 aerial photographs downloaded from the Internet on 24 October 2003. The photographs depicted Holsworthy Army Barracks, HMAS Penguin at Balmoral and Victoria Barracks. It is the Crown case that the accused made these photographs in connection with the preparation for a terrorist act, namely the bombing of “one or more of the establishments” depicted in the photographs and that he was aware of that connection. In relation to this count, the Crown will again rely on the general and specific body of evidence, which I have earlier identified. In addition, there will be evidence that the accused performed work of an architectural character at each of the three military establishments in 2000 and 2001.

16 In relation to count 4 the Crown will rely on the general body of evidence already identified and the particular evidence relating to the allegation that the accused had in his possession the 15-page document referred to earlier. Two of the chemicals mentioned in the handwritten notes were chemicals the price and availability of which the accused had specifically enquired of Deltrex Chemicals.

A connection between the accused and Ul-Haque

17 Although I have not seen specific evidence on the point, certain information has been provided to me on behalf of the accused without demur from the Crown. This is said to show a connection between the accused and Ul-Haque, which is reflected in the course of proceedings originally instituted against each man. The starting point is the arrest and deportation of Willie Brigitte in October 2003. It is proper to infer that this led to a spate of intensive investigative actions in Australia. One possible corollary of the situation may have been the commencement of the interviews with Ul-Haque in November 2003. On 26 October 2003 a Search Warrant was executed at the accused’s home and it appears that he had already been under surveillance in October 2003. There were Questioning Warrants issued under the ASIO legislation against the accused and he was detained for questioning. This compulsory interrogation began on 30 October 2003 and continued until some time late in November 2003. The accused was arrested and charged with terrorism offences on 22 April 2004. I have not been provided with the precise times of the initial charges against Ul-Haque and the accused. It appears, however, that they were probably charged at about the same time, or, at least as I understand it, at times not far apart. Ul-Haque was charged with intentionally receiving training from LeT; the accused was initially charged with an offence under the Criminal Code of “recruiting” Mr Ul-Haque to participate in training with LeT in Pakistan. The brief of evidence that was served on the accused at the time that he stood charged with that offence was the same brief of evidence that remained served up to the time of committal for trial in relation to the charges, or the predecessors of the charges, that now appears in the indictment.

18 There appears little doubt that the “recruitment” charge brought against the accused was originally based upon what Mr Ul-Haque had said to the police in the three records of interview. There was no other evidence in the brief of evidence served upon the accused prior to the committal hearing, which would have sustained a charge of recruiting Mr Ul-Haque for terrorist related training. At the committal hearing, however, the charge of recruiting Mr Ul-Haque was discontinued against the accused. It has never been revived.

19 All this is relevant, as Mr Boulten SC made clear in his submissions, to the proposition that the background history of the relationship between the two men, and particularly the original allegations of their involved criminality, may well give rise to the need for a jury to assess, if Mr Ul-Haque be called, his reliability. This in turn may well require the giving of directions to the jury in terms of s 165(1)(d) of the Evidence Act.

20 The second matter made clear in Mr Boulten’s historical analysis is that the position of Mr Ul-Haque as a potential witness against the accused has been well known to the Crown for a considerable period of time. It was not, however, until a few weeks ago that notice was given by the Crown to the accused that the Crown intend to call Mr Ul-Haque as a witness in the trial of the accused.

A summary of the evidence likely to be adduced by the Crown through Ul-Haque

21 There is no need for me to set out the evidence in detail. In summary, however, it appears that Mr Ul-Haque made an number of statements in relation to the role played by the accused in encouraging and recruiting him to travel to Pakistan for the purpose of Ul-Haque’s training with LeT, in order to participate in Jihaad. That has been described as the first category of evidence. The second category is Mr Ul-Haque’s evidence in relation to his travel to Pakistan and his training with LeT in 2003. It includes evidence that Ul-Haque met or at least saw the accused at the LeT centre in Lahore and that it appeared to him that the accused was known to the people who ran this centre.

22 The third category of evidence relates to the relationship between the two men when Ul-Haque returned to Australia in early 2003. The evidence relates to arrangements made between Ul-Haque and the accused requiring Ul-Haque to use confidential or secretive means of communication if he wished to speak to the accused.

Ul-Haque’s response

23 Not surprisingly, Mr Ul-Haque has indicated that, if called, he will refuse to answer any questions, which are put to him on the grounds that the answers would tend to incriminate him. Mr Toner SC appeared on his behalf on the present application to resist any order that Ul-Haque be required to give evidence at trial. This was done essentially on the two bases arising under s 128(5)(b) and (c) of the Evidence Act 1995.

The provisions of s 128 of the Evidence Act

The section is in the following terms:

“128 Privilege in respect of self-incrimination in other proceedings
(1) This section applies if a witness objects to giving particular evidence on the ground that the evidence may tend to prove that the witness:
(a) has committed an offence against or arising under an Australian law or a law of a foreign country, or
(b) is liable to a civil penalty.

(2) Subject to subsection (5), if the court finds that there are reasonable grounds for the objection, the court is not to require the witness to give that particular evidence, and is to inform the witness:
(a) that he or she need not give the evidence, and
(b) that, if he or she gives the evidence, the court will give a certificate under this section, and
(c) of the effect of such a certificate.
(3) If the witness gives the evidence, the court is to cause the witness to be given a certificate under this section in respect of the evidence.

(4) The court is also to cause a witness to be given a certificate under this section if:
(a) the objection has been overruled, and

(b) after the evidence has been given, the court finds that there were reasonable grounds for the objection.
(5) If the court is satisfied that:

(a) the evidence concerned may tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, an Australian law, and
(b) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and
(c) the interests of justice require that the witness give the evidence, the court may require the witness to give the evidence.

(6) If the court so requires, it is to cause the witness to be given a certificate under this section in respect of the evidence.
(7) In any proceeding in a NSW court:
(a) evidence given by a person in respect of which a certificate under this section has been given, and
(b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence, cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.
(8) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant:
(a) did an act the doing of which is a fact in issue, or
(b) had a state of mind the existence of which is a fact in issue.
(9) A reference in this section to doing an act includes a reference to failing to act.”

Submissions on behalf of the parties

24 The Crown’s original submissions may be stated briefly. The Crown suggested that the principal issue it had to deal with was that set out in s 128(5)(c). The Crown submitted it was “in the interests of justice” that the order sought be made. This expression, the Crown submitted, should be construed broadly (Cureton v Blackshaw Services Pty Limited [2002] NSWCA 187 at [37]. Secondly, the Crown submitted that the evidence was important in the Crown case and that support for this proposition was to be seen in the fact that the Court had already ruled that “similar” evidence (in the case of the witness Kwon) had been considered by the Court to have been “important”. Thirdly, the Crown submitted that the charges against the accused were serious, this being a matter that was not put in contention by either Mr Toner SC or Mr Boulten SC. Finally, the Crown submitted that no prejudice would flow to Ul-Haque because he had already received a “user” indemnity from the Director of Public Prosecutions pursuant to s 9(6) of the Director of Public Prosecutions Act 1983. Further, he would be entitled to receive a Certificate from the Court pursuant to s 128 of the Evidence Act. If there were thought to be any residual prejudice resulting from inappropriate publicity to his evidence, the Court could make a suppression order and/or a non-publication order in respect of it.

25 Mr Toner SC had obtained, shortly before the hearing of the application, a copy of the Pakistan Anti-Terrorism Act 1997. This was in evidence before me. Mr Toner’s principal submission was that an examination of the evidence likely to be given by Ul-Haque, if he were ordered to give evidence, showed that the evidence would tend to prove that Ul-Haque had committed an offence under a law of a foreign country namely, Pakistan. If that were right, Mr Toner SC argued, the Court would be precluded from requiring the witness to give evidence.

26 Secondly, Mr Toner argued that the evidence sought to be obtained from Ul-Haque by the Crown, while not unimportant, was essentially circumstantial evidence and did not go directly to demonstrate that the accused had committed the offences charged. Thirdly, Mr Toner argued that, notwithstanding the issue of a Certificate and the grant of an indemnity, Ul-Haque was being asked to “tear up” his right to silence; and to recite “chapter and verse” the three records of interview, which he was vigorously arguing should be excluded from his own trial. Mr Toner submitted that all these things added up to a gross unfairness to Ul-Haque and a clear injustice to him. In those circumstances, he should not be required to give evidence.

27 Mr Boulten SC agreed generally with the submissions made by Mr Toner SC. Mr Boulten, however, took a different tack in relation to his principal submission. This was to submit that the accused did not accept the truth of the assertions made by Mr Ul-Haque against him. In other words, the accused put in issue that he had recruited Ul-Haque, that he had been seen in Lahore at the LeT office and that he made secret arrangements with Ul-Haque after the latter’s return to Australia. Mr Boulten submitted that the evidence of Ul-Haque was not in any event crucial to the Crown’s case and that the Crown case would not be significantly diminished without the evidence of Ul-Haque. Finally, he submitted that it would be likely, in the attack on credit and reliability, which he anticipated, would be made against Ul-Haque, that it would be suggested that Ul-Haque was “playing down” his own role in going to Pakistan in 2003. Further it would be put that, for the same reason, Ul-Haque had attempted to “over state” the role, if any, played by the accused in suggesting that Ul-Haque go to the LeT training camp in Pakistan.

28 Mr Boulten SC made two final points. First, the fact that the Crown had only given recent notice of its intention to call Ul-Haque was an indication that his evidence was in truth relatively unimportant to the Crown case. Secondly, Mr Boulten suggested that the calling of Ul-Haque might well extend the present trial significantly because the federal police who were supposed to have interviewed Ul-Haque might well need to be cross-examined about an issue which, while crucial to the trial Ul-Haque is facing, would be only of marginal relevance to the trial that is currently being heard before this Court. This, as I understood it, was a reference to the blandishments or promises made allegedly by police to Ul-Haque if he were to agree to implicate the accused in his recruitment to the training camps in Pakistan.

Resolution of the issues

29 I have come to the conclusion that Ul-Haque should not be required to give evidence in the trial of the accused. There are two essential factors in terms of the legislation that lead me to this conclusion. The first is that I am not satisfied that the evidence sought to be adduced does not tend to prove that the witness has committed an offence against or arising under a law of a foreign country. The second is that I am not satisfied that the interests of justice require that the witness give the evidence. Indeed, upon a consideration of all relevant matters that have been argued before me in relation to this discretionary exercise, I am positively satisfied that I should not require the witness to give the evidence.

30 The starting point for the reasoning behind the conclusions I have reached is my satisfaction that s 128 of the Evidence Act has application to the present situation. It does so because the witness, through his counsel, has objected to giving particular evidence on the ground mentioned in sub-s (1) and because I am satisfied that there are reasonable grounds for the objection. There is no controversy between the parties in relation these matters.

31 This state of affairs requires the Court to move to the considerations in sub-s (5) of s 128. Again, I have no doubt that the general nature of the evidence sought to be adduced may tend to prove that the witnesses committed an offence under an Australian law. In particular, the offence is the very charge that has been brought against Ul-Haque and which I have earlier detailed. Again, there is no controversy between the parties as to that matter.

32 This situation then requires the Court to move to a consideration of s 128(5)(b). The tender of the document which is accepted to be a reasonably accurate copy of the Pakistan Anti-Terrorism Act 1997 poses immediate problems for the Crown. For example, s 21(7)(b) provides as follows: -

“A person commits an offence if he receives any instruction or training in acts of terrorism or invites another, specifically or generally, to receive such instruction or training”.

33 A person guilty of an offence under sub-s (b) is, on conviction, liable to imprisonment for a term of not less than one year and not more than ten years and a fine (s 21(7)(c).

34 An act of “terrorism” is defined in s 6. This is a very broad definition section. There is no need for me to set it out in detail but it is, as I say, of the broadest category. It includes, for example, any act done for the benefit of a proscribed organisation (s 6(v)). There is no dispute in the present matter other than that, at the time Ul-Haque was alleged to have been training at the LeT camp in Pakistan, LeT was a proscribed organisation, that is proscribed under the Pakistani legislation.

35 A person who commits an offence under s 6 or under in other provision of the Act is “guilty of an act of terrorism” (s 6(vi). Moreover, a terrorist is defined, by s 7 to mean a person who has committed an offence of terrorism under the Act or who has been or is concerned in the commission preparation or instigation of acts of terrorism. In addition, s 11F makes it an offence if a person belongs to or professes to belong to a proscribed organisation. (Arguably Ul-Haque may have conceded these matters in his records of interview: see first interview at A382; third interview at A120).

36 Faced with legislation, the Crown has responded by suggesting that the problem can be avoided if the Crown leads only the category one and category three evidence I have identified. This would mean that the Crown would not require the witness to give the evidence contained in the records of interview that suggest that he was engaged in a training camp with LeT in Pakistan in early 2001. The immediate problem there I think is that, for the valid reasons I have earlier stated, Mr Boulten SC wishes to challenge the category one and category three evidence. No doubt he will do so forcefully. This will require Mr Boulten SC to place at the forefront of his cross-examination questions relating to the activities of Ul-Haque when he was in Pakistan in early 2001. The Crown responded to this proposition by arguing that the Court could refuse to allow Mr Boulten to raise those particular matters. That, in my opinion, would be significantly unfair to the accused. Consequently, the witness would be required to give evidence about the very matters that would tend to establish the commission by him of the act or acts of terrorism committed contrary to the Pakistani statute.

37 For this reason, essentially, I do not think it is possible to compartmentalise Mr Ul-Haque’s evidence in the manner suggested by the Crown’s submissions. Moreover, I observe that Schedule 3 of the Pakistan statute lists what are described as “scheduled offences”. These are derived from s 2(t) and s 34. The schedule creates an offence in item 3 as follows: -

“Any attempt to commit, or any aid or abetment of, or any conspiracy to commit any of the aforesaid offences”.

38 It is further necessary to note, in addition, s 21(m) which appears to enable a court trying an offence to convict an accused for “another offence” if, in the course of the trial it is found that the accused person has committed any other offence under the Act or any other law for the time being in force. Moreover, a person may be tried in absentia in certain circumstances (s 19(10)).

39 As I see it, these provisions may expose Ul-Haque to prosecution and conviction in Pakistan for an offence of conspiracy the proof of which might well include evidence in categories one and three. At the very least, I cannot be satisfied that this is not the case.

The interests of justice do not require that the witness give the evidence

40 This requires the examination of a complex of matters which, by their nature, tend to pull in different directions.

41 The first matter is a consideration of the importance of the evidence. There is no doubt that the evidence may be said to be reasonably important in the Crown case. It certainly could not be said to be unimportant or trivial. Indeed, Mr Bellew pointed out on behalf of the Crown that in my earlier decision I labelled evidence of a similar nature as “important”. In the earlier decision (which dealt with the evidence of a witness Kwon) I said: -

“The evidence is important to the Crown case for the reasons identified in the transcript by Mr Maidment SC. It is the only evidence in the Crown that directly places Willie Brigitte in an LeT training camp”.

42 Am I, as Mr Bellew subtly suggested, hoist on my own petard? I do not think so.

43 First, the evidence of Kwon was examined in the context of s 138 and in particular, in the context of the considerations that the Court was required to take into account under sub-s 3 of the section. The issue arising there related to “the desirability of admitting the evidence” and whether that consideration outweighed the “undesirability of admitting evidence” obtained in a way that was suggested to be improper. Here the issue of “importance” is to be evaluated in a much broader context, namely, “the interests of justice”.

44 Secondly, while the evidence of the witness Kwon was “important” to the Crown case, its relative importance was not, expressly in terms of s 138, required to be assessed. Thirdly, once the Crown has been entitled to lead the Kwon evidence, as it is now permitted to do, the relative importance of the Ul-Haque evidence to the Crown case diminishes.

45 Mr Bellew submitted that the Ul-Haque evidence was more important or more significant to the Crown than the Kwon evidence because it showed a more direct link between the accused and LeT. There is undoubtedly force in this submission. But it needs to be recalled that the Kwon evidence (like the Ul-Haque evidence) remains circumstantial only. It is not direct evidence of the commission of the crimes charged. The Crown case, continues to focus, for better or worse, on the relationship between the accused and Willie Brigitte. Therein lies the importance of Kwon’s evidence in the Crown case. This is so because Brigitte’s background, established by Kwon’s testimony, if he be accepted, is circumstantial material that, in the light of Brigitte’s association with the accused, may legitimately be added to the overall mosaic sought to be assembled by the Crown case. It adds not merely colour but shape to the suggestion that the accused’s actions in collecting, making or possessing documents, for example, may have been carried out with a specific knowledge intent or purpose. It goes to the establishment of the fault elements required in the Criminal Code Act. The evidence is, of course, only part of the mosaic and the strength or clarity of the component’s parts as well as the whole picture will be a matter for the jury.

46 The point is, however, that while the evidence of Ul-Haque would admittedly add further dimension to the mosaic of the Crown case, as I have described it, it would not add to it in a significant or critical way. Conversely, the omission of the Ul-Haque evidence will not significantly diminish the overall nature of the Crown case. Importantly, the evidence does not directly bear on the commission of the acts namely, the physical elements of the offence.

47 It is next necessary to consider the nature of the charges against the accused. They are very serious and carry a high likelihood of the imposition of a substantial term of imprisonment if the accused be convicted. No submission has been made to doubt the fact that these are serious charges.

48 The remaining considerations are, first, the interests of Ul-Haque himself in relation to his forthcoming trial. Secondly, there are the interests of the accused in obtaining a fair trial on the charges he faces.

49 As to the first matter, the position of Mr Ul-Haque is a singular one. He is poised to face trial on a very serious charge, subject only to the disposition of the appeal he has brought against Bell J’s decision in relation to the indictment. His application seeking to set aside the three records of interview on the basis of substantial unfairness and the manner in which those interviews were conducted has yet to be determined. The records of interview are, it is conceded, the only substantial evidence in the case against Ul-Haque.

50 For the reasons I have outlined, I think that it is highly likely that if he is required to give evidence it will really mean that either he or the cross-examiner will traverse the bulk of the three interviews including the evidence in all three categories. Moreover, there is every possibility that a forceful cross-examination will tend to expose, or at least may expose, that his involvement in the LeT training camp in 2001 was at a higher level than he has indicated in the records of interview. Certainly that will be aim of the cross-examiner who will seek to secure that position as part and parcel of an attack upon the witness’s credibility, his reliability and the truthfulness of the material in the interviews so far as it impacts upon the accused.

51 It is of course true that Ul-Haque has the benefit of an indemnity certificate from the Director of Public Prosecutions. Moreover, if required to give evidence, he would have the benefit of a certificate issued by the Court. But, in the unusual circumstances of Mr Ul-Haque’s trial, I am not satisfied that that protection will be sufficient.

52 In Hamilton v Oades in the High Court, (1989) 166 CLR 486) the Court was dealing with the examination permitted by s 541 of the Companies (NSW) Code. The Court took a different view than had the New South Wales Court of Appeal in relation to the particular legislation under consideration. The legislation had the effect of compelling persons to give evidence that might tend to incriminate them. The High Court held that the particular legislation manifested a clear legislative intention to abrogate the privilege against self-incrimination. A note of caution, however, was sounded in the judgment of Toohey J. His Honour suggested a possible qualification to the extent of questioning permissible under s 541. That passage appears in the decision of Toohey J at page 515.

“A protection against self-incrimination in the terms enunciated by the Court of Appeal gives no effective operation to s 541(12). And that is so notwithstanding the qualification expressed in the words “concern those facts which constitute the ingredients of the offences …”. The areas of inquiry specified by the appellant liquidator may well concern those very facts. The power vested in the court by s541(5) to give directions as to the matters to be inquired into may be used to ensure that the matters to be inquired into are relevant to the object of the examination. And, as Barwick CJ pointed out in Mortimer v Brown , a question may be so peripheral that it would be oppressive or unjust to require an answer. It is not hard to think of other examples of oppression or injustice. Clearly, a question designed to elicit a direct admission of guilt would fall into this category . See also Huston v Costigan (1982) 45 ALR 559 at 563. But it is not enough that the answer to a question may tend to incriminate the person examined. It is precisely this sort of answer that s541(12) allows so that the affairs of the company may be relevantly investigated.”
( underlining added )

53 Although this note of caution was sounded in a different context to s 128 it raises appropriately the possibility of questions, which fall into a category of possible oppression or injustice.

54 Section 128 of the Evidence Act is a section that imposes a power or confers a discretion upon a court to compel a witness to give evidence that may tend to demonstrate that the witness has committed an offence against an Australian law. It is not itself a statutory exception to the principles stated by Clarke J in Hamilton v Oades (1987) 11 NSWLR 138 at 153. The section does not compel the making of an order. Where, however, an order has been made requiring a person facing unresolved charges to give evidence, this may result in a situation where incriminating evidence must be provided. The legislation addresses the interests of the witness, however, by providing a protection. That protection arises from the issue of a certificate.

55 But the certificate does not give absolute protection. There are, for example, the indefinable but no doubt real prejudices that may result where a witness has given evidence of the kind dealt with in s 128 which may as a consequence bring him into disfavour with some sections of the community or people who have previously held the witness in high regard. Secondly, the protection may not extend to the consequences that may be involved in disciplinary proceedings instituted against professional persons or even, at a wider level, against members of the general community. In the present case, particularly, there is the subtle but real damage that can be done to the rights of Ul-Haque if the entirety of the Crown case against him, in effect, becomes the material evidence he is required to give against the accused. The position is made the worse, I consider, in the particular circumstances where he is seeking to overturn those very records of interview and have them excluded from his trial. It is not inconceivable that a successful cross-examination by Mr Boulten SC in the present matter may disrupt and indeed, shatter the professional bond of confidence existing between Ul-Haque and his counsel of choice. The very substance of the questioning envisaged by Mr Boulten SC might well lead to a question whether the matters to be put to Ul-Haque fall into the category of material that is “oppressive and unjust” in the sense mentioned by Toohey J in Hamilton’s case.

56 There is one further issue that needs to be mentioned: this is the aspect of the reliability of the material evidence to be adduced from Ul-Haque. This issue was raised and dealt with by the New South Wales Court of Appeal in R v Collisson [2003] NSWCCA 212 paras 28-33. Here, for the reasons mentioned by Mr Boulten in argument there is likely to be an issue concerning the reliability of Ul-Haque’s evidence. It seems almost inevitable that a direction would have to be given under s 165 of the Evidence Act. Although I do not think that this is a determinative factor in the present matter, it is a matter that needs to be brought into the scales and, on balance, it also favours the result that seems appropriate to me in relation to the present application.

57 There is no need for me to dwell unduly on the aspect of a fair trial for the accused. The only relevant matter, for present purposes, is the suggestion that he should be precluded from cross-examining Ul-Haque about the category two evidence. That would be, as I have already said, significantly unfair to the accused and is a further factor in favour of making an order that the witness not be required to give evidence in the trial.

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