R v Ul-Haque - [2007] NSWSC 1251

No judgment structure available for this case.

Reported Decision:
177 A Crin R 348

New South Wales

Supreme Court

CITATION: R v Ul-Haque [2007] NSWSC 1251
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 15/10/07, 16/10/07, 17/10/07, 18/10/07, 19/10/07, 22/10/07, 23/10/07, 24/10/07, 25/10/07, 26/10/07, 30/10/07, 31/10/07, 2/11/07, 5/11/07

JUDGMENT DATE :
5 November 2007

JUDGMENT OF: Adams J at 1

DECISION: The records of interview of 7 and 12 November 2003 and 9 January 2004 are inadmissible.

CATCHWORDS: Admissibility of interviews with AFP - prior improper conduct by ASIO - whether ASIO conduct criminal - false imprisonment - kidnapping - meaning of "oppressive" - onus of proof

LEGISLATION CITED: Criminal Code s102.5(1), 100.1, 102.1
Crimes Act 1900, s86
Evidence Act 1995, s84, 85, 138

CASES CITED: Davis v The Queen [2006] NSWCCA 392
R v D [1984] AC 778
R v DMC (2002) 137 A Crim R 246
R v Linsberg (1905) 69 JP 107
R v Wellard [1978] 3 All ER 161
Re Bolton; ex parte Beane (1987) 162 CLR 514
Ruddock v Taylor [2005] HCA 48 at 137
Trobridge v Hardy (1955) 94 CLR 147

PARTIES: Regina
Izhar Ul-Haque

FILE NUMBER(S): SC 2005/422

COUNSEL: Crown: Mr G. J. Bellew SC/ Mr M.C. Bracks
Accused: Mr I. Barker QC/ Mr P. Lange
Cth: Mr L. Robberds QC

SOLICITORS: Crown: Commonwealth Director of Public Prosecutions
Accused: Lawyers Corp
Cth: Australian Government Solicitor

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

Friday 2 November 2007

2005/2660 REGINA v Izhar UL-HAQUE
JUDGMENT

1 HIS HONOUR:

Introduction

2 The accused is on trial pursuant to an indictment which alleges an offence against s102.5(1) of the Criminal Code in the following terms –

“That between 12 January 2003 and 2 February 2003, in Pakistan, he did receive training with respect to combat and the use of arms from a terrorist organisation, namely Lashkar-e-Taiba, he the said Izhar Ul-Haque at the time aforesaid knowing that the said organization was a terrorist organisation.”

3 The accused having pleaded not guilty to this charge, his trial has now commenced although a jury has not yet been empanelled. The prosecution wishes to rely on alleged admissions made by the accused to Australian Federal Police officers during interviews which were conducted on 7 and 12 November 2003 and 9 January 2004. The accused contends that evidence of what was said during those interviews is inadmissible. For reasons of convenience it was agreed by the parties that I should hear and determine this question before the jury is empanelled for the balance of the trial.

4 The interviews were extensive and lengthy. Much, indeed most, of what they cover is not relevant to the issues in the trial. In considering the admissibility of the interviews, I am only really concerned with the relevant parts. Broadly speaking, these deal with what training he did, whether the training was given by LeT, and whether LeT was a terrorist organisation within the meaning of the Code.

5 Because of the alleged sensitive nature of some of the evidence relevant to the issues on the voir dire it was necessary to close the Court for some part of the evidence. In the result, however, evidence that was given in closed Court does not require suppression and a full copy of the transcript is available. However, the names of certain ASIO personnel were not disclosed and remain secret. It is obvious that this does not affect the issues I need to determine.

The relevant legislation

6 At the time of the alleged commission of the offence the relevant legislative provisions were as set out below.

7 Section 102.5(1) of the Code –

8 Section 100.1 of the Code defined the term “organisation” as –

“organisation

9 Section 102.1 of the Code defined the term “terrorist organization” as –

10 Section 100.1 defined the term “terrorist act” as follows –

“

The Crown case as particularised

11 The prosecution alleges that the accused received training from an organisation known as Lashkar-e-Taiba (LeT). Although LeT is now prescribed as a terrorist organisation in the Regulations made under the Code, this did not occur until late 2003, which was after the accused allegedly committed the offence. The prosecution cannot therefore rely on this prescription but must otherwise establish by admissible evidence capable of proving the fact, if it be the fact, that LeT was a “terrorist organization” at the relevant time. The prosecution alleges, in this respect, that LeT was directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a “terrorist act”, namely action that –

(a) was to be done with the intention of advancing a political, religious or ideological cause, namely the restoration of control of Indian-occupied Kashmir to Muslims;

(b) was done or was to be done with the intention of coercing, or influencing by intimidation, the government of India or intimidating the public or a section of the public (including members of the Indian armed services), actually or potentially serving in the region of Indian-occupied Kashmir;

(c) was intended to cause serious physical harm to a person or persons, namely members of the Indian armed forces serving in the area of Indian-occupied Kashmir;

(d) was intended to endanger the life of such a person; or

(e) was intended to create a serious risk to the health or safety of the public or a section of the public, namely members of the Indian armed forces serving in Indian-occupied Kashmir, or the health and safety of members of the public who might be put at risk as a result of actions against such members of the Indian armed forces.

12 On 20 March 2003, the accused returned to Sydney from Pakistan, where he had, it is alleged, trained for twenty-one days at a camp operated by LeT. Upon his arrival in Australia, his baggage was searched and Customs officers located a number of books, printed material and notebooks. This material referred amongst other things to weapons, oil and gas pipelines in central Asia, articles about events in Afghanistan and a letter by him addressed to his family in which he stated that he was going to Kashmir for “jihad” and that he intended to join LeT. Having seized this material, however, the accused was allowed to go freely on his way and was not subjected to any further action by the authorities, at least any action which came to his attention.

13 It seems almost certain that the action taken against the accused by the authorities was instigated by his being connected with one Faheem Lodhi. He had met Lodhi at a family occasion long before he went to Pakistan. It seems his mother and Lodhi’s wife were good friends. His relationship with Lodhi developed and was, perhaps, the major reason for his going to Pakistan. At all events, it appears that he had some continuing communication with Lodhi after his return and that it was this that excited the interest and instigated the actions of the authorities that led to the interviews here in question and his ultimately being charged.

ASIO officers meet the accused

14 At 7.25pm on 6 November 2003, twenty or so ASIO and four or five police officers, all in plain clothes, attended with a search warrant at the home where the accused lived with his parents and three brothers. Entry was given to the premises by the accused’s mother when a search warrant was shown to her. His father was in Pakistan at the time. The warrant has been tendered. It is unnecessary to say more about it than that it authorised a search of the premises for certain purposes. It is important to note that did not justify any detention of any kind of any person for any purpose except if to do so was necessary for the purpose of conducting the search. It is not disputed that there was no obstruction to the execution of the warrant and no call for any restraint of any person.

15 Earlier in that day the accused had been under surveillance by ASIO. He had been at the University of New South Wales, where he was (and is) a student. The records show that at 5.53pm he boarded a train “from the University of New South Wales” to Blacktown. I interpolate that, of course, there is no station at the University and I assume this is a reference to some other station in near proximity, perhaps in the city. At all events, at 6.35pm a surveillance officer reported that the accused was expected to arrive at Blacktown train station in approximately twenty minutes. Waiting for the accused in the car park near Blacktown railway station were three ASIO officers, B14, B15 and B16. Although B15 and B16 say that they saw the accused and his younger brother enter the car park at about 7.15pm, B14 said that this happened at about 6.30pm. It may be that in the end nothing depends upon this (and the officers were not cross-examined about it) but I think it doubtful that the time of 7.15pm is accurate. Be that as it may, B16 says that he and B15 approached the accused and his young brother whilst B14 remained in an ASIO vehicle nearby. B15 went up to the accused and the following conversation was said to have occurred –

I said: “Izhar Ul-Haque?”

UL-HAQUE said: “Yes.”

I said: “I am B15. I am an officer of the Australian Security Intelligence Organisation and I would like to have a private discussion with you and we need to have that discussion now.”

He said: “OK.”

I said: “We’d like you to accompany us in our car and we’d like to go somewhere else and have a private discussion with you about an important matter.”

He said: “OK, but what about my brother?”

I said: “We have no interest in having a discussion with your brother. Why don’t you give your brother your car keys?”

He said: “But my brother can’t drive.”

I then suggested to UL-HAQUE that at least his brother could wait inside the vehicle.

UL-HAQUE then accompanied B16 and me to an ASIO vehicle and B14 drove us to Francis Park in Blacktown, a drive of about less than five minutes. During the drive to Francis Park UL-HAQUE sat in the back seat of the vehicle between B16 and myself. On the way to the park I said to UL-HAQUE words to the effect of:

I said: “We wish to discuss a very important matter with you and we require you to be honest with us and we require your full co-operation with us in investigating this matter.”

On the way to the park I do not recall UL-HAQUE engaging in any discussion with me, B16 or B14.”

16 B16’s account of this confrontation is in somewhat different terms. He says that B15 said, after asking the accused for his name, “I want to speak with you because you’re in serious trouble”. B16 said that he did not recall the accused’s reply, “But from his facial expression he appeared shocked and surprised”. B16 then asked the accused’s brother, “Who are you?” and was told, “My name is Izaz, Izhar’s younger brother”. B16 does not have any useful recollection as to what then ensued until the party arrived at Francis Park, perhaps ten minutes after the initial meeting.

17 The accused’s account of this part of the conversation differs somewhat from that of the ASIO officers. He said that he was approached by two men at about 7.15 or 7.30pm in the car park at Blacktown train station. His evidence continued –

“A. As I was walking to the car park, two men approached me and one of them said, "I'm an ASIO officer", or, "I'm from ASIO" or something like that and he showed me a badge. I was really shocked and I took one or two steps in the direction I was walking and then that person, whom I later found out to be Mr [B15], came in front of me and looked into my face and said, "You're in serious trouble", and he was just a few breaths away from me, in front of me. "You're in serious trouble. You need to talk to us and you need to talk to us now." He said, "We are doing a very serious terrorism related investigation and we require your full cooperation and it's in your own benefit to talk to us." And at that time, I was with my brother Izaz and he was being talked to by the other person, Mr [B16] I believe, and Mr [B15] said, "We need to have a discussion with you and we need to have it right now and you need to come with us" and I was really frightened.

I didn't know what was happening and I just mumbled "yes", I nodded trying to understand what they are saying. Then I said to - Mr [B15] said, "Would you come into the car with us?" They had their own car, and I said, "What about my brother? I was supposed to take him home in the car?" and he said, "Give the keys to him." But I said, "He can't drive." He said, "Well we need to have the discussion now. Leave the other matters as they are." Then on his orders I got into the car and I was sitting in the middle and I'm not sure who was on the right or left, but I was sitting in the middle in between [B15] and [B16] in the back seat and they said, "We are taking you somewhere to have a private discussion and to talk to you." At that time really I didn't know where I was being taken. In my mind a lot of things were going on, you know, am I being taken to a secret location or some secret ASIO interrogation rooms. I didn't know what was going to happen to me and then they took me to a park near the Blacktown Railway Station. I think it's Francis Park, and when we got to the park, officer [B15] told me to get out of the car.”

18 The accused’s younger brother, Izaz, was seventeen years old at the time. The suggestion that he should wait in the car whilst the officers took the accused to Francis Park was, to say the least, high-handed.

19 The officers were dealing with a young man of twenty-one years. It is obvious that any citizen of ordinary fortitude would find a peremptory confrontation of the kind described by the ASIO officers frightening and intimidating. Furthermore, the fact that he was being taken to a park rather than any official place would have added an additional unsettling factor. I do not think it can be doubted that this was precisely the effect that was intended.

20 To resume B15’s account –

“On arrival at the park, B14 parked the vehicle in a car park adjacent to a sports field and B16, UL-HAQUE and I exited and moved to the rear of the vehicle. I then said to UL-HAQUE words to the effect of:

I said: ‘You must know why we’re here talking to you.’

He said: ‘No.’

I said: ‘So, you really have no idea why we need to talk with you.’

He said: ‘No.’

I said: ‘You’re in a substantial amount of trouble. We are conducting a very serious terrorist investigation at the moment and that investigation has lead us to you. We have many means of investigation and we hold considerable information about you. What we now require from you is your full co-operation with ASIO in resolving the matter by being honest with us.’

UL-HAQUE did not reply and looked at the ground.

I then said words to the effect of:

I said: ‘How do you know Faheem LODHI.’

He said: ‘Who?’

I said: ‘Faheem LODHI.’

UL-HAQUE was then shown a photograph of a person known as Faheem LODHI by either B16 or myself and I said words to the effect of:

I said: ‘We know you know him.’

He said: ‘Yes, that’s Faheem LODHI. I know him.’

B16 and I then had a further conversation with UL-HAQUE during which we discussed his relationship with Faheem LODHI and the manner in which he maintained contact with him and regarding the use of a code. I remember at one point in our conversation I drew a figure ‘Y’ in the gravel with my foot. At that point I said to UL-HAQUE words to the effect of:

I said: ‘This is a Y. We are here.’

At that point I was gesturing towards the intersection of the ‘Y’. I then said words to the effect of:

I said: ‘We’ve got two choices. We can go down the difficult path or a less difficult path. The difficult path would mean that we stand here putting these questions to you like this, having you tell us things which we know to be untrue, and having to demonstrate to you that we know these things are untrue before you give us a truthful answer. Or, we can take a less difficult path which would involve you co-operating and proving truthful answers to our questions and assisting us in resolving our concerns.’

I then stated that ASIO has many means of investigation and knows much in relation to the matter we are investigating. We noted we had concerns in relation to Faheem LODHI and his affiliations. We then had a further conversation that related to Faheem LODHI and UL-HAQUE’s relationship with the organisation Lashkar-e-Taiba. The conversation at Francis Park lasted for about thirty minutes in total. Neither B16 nor I took notes of this conversation at the time.”

21 The accused’s account is as follows –

“The driver sat in the car and we walked about 10, 15 metres towards the edge of the park where there was a creek and the time was around 7.45 approximately or 7.50. Then Mr [B15] then said, ‘Izhar, you need to be honest because we have a lot of information about you and we need your full answers. You should know why we are here.’ I was really hesitant in what was going on and I said, ‘Is it because of the training I've done in January 2003?’ They said, ‘No, we know about that. We're not concerned with that. There are lots of other things you need to tell us about.’ And I could not come up with the answers immediately and they said, ‘Look Izhar, we can do this the easy way or we can do this the hard way. Either you should co-operate with us or there'll be consequences for you, and it's in your own benefit that you keep talking to us.’ Then they said, ‘Do you know Mr Lodhi?’ I said, ‘Yes I know Mr Lodhi.’

Then they showed me a few pictures and I recognised Mr Lodhi and then they discussed where and how and when I had met Mr Lodhi and what I talked – what I was told in the discussions with him and they were saying words to the effect that whenever I would give an answer, they would say, ‘Look, you're not being honest with us. We already have a lot of information about you and if you don't co-operate, things will get worse for you.’

I was really afraid of what's going to happen to me. This went on for about, I would say, 30 minutes or 45 minutes. Then they said, ‘We are going to your house now and they are raiding your house right now at the moment’, and I was really afraid what's going to happen to my family at the house. Because I didn't know until they told me that my house was being raided. Then they told me to get into the car and I sat in between Mr [B16]and Mr [B15] and they drove me back to my house in Glenwood.

Q. Was there conversation in the car?
A. Yes, there were lots of conversations in the car, and they said that you need to be honest with us, and this issue has gone to the highest levels of government. And if you don't cooperate, we have other sources of extracting information, and we need you to cooperate with us; words to that effect.

Q. Pausing there, when you had the first - after the first approach you were told to get into the car?
A. Yes.
Q. You were told to get out the car and told to answer questions. Did you believe you had any choice in the matter?
A. Not really, no. I never thought I had a choice because I believed I was under arrest and that if I did not comply with whatever they asked me that they will either use physical violence or take me to a more sinister place to interrogate me or, you know, do something to my family or deport me, or lots of other things were going on in my mind, and the thought of choice never really occurred because I was under extreme pressure and stress.”

22 In cross-examination of B15 the following occurred –

23 On 7 November 2003 or shortly after, a report was prepared by B15. The following description of the events at the park is set out –

“At Francis Park, it was pointed-out to Izhar that he was in substantial trouble and that his full cooperation with ASIO in resolving the matter at hand would be required. Izhar refused eye contact with the interviewing officers and stated that he did not know why ASIO would have an interest in him. Izhar was shown the photographs of persons known to be relevant to the Brigitte investigation, with Izhar recognising the person in the photograph of Lodhi (stating that he knew him as Faheem Lodhi) and the person in the photograph of Abdul Rakib Hasan (claiming not to know this person’s name). After robust discussion and considerable prompting from the interviewing officers, information was elicited from Izhar concerning his relationship with Lodhi and regarding his training with the Laskhar-e-Tayba in Pakistan (substantially confirming ASIO’s knowledge of these subjects). Following the receipt of telephone advice that the search warrant had been served on 9 Thompson Crescent, Glenwood, the interviewing officers then accompanied Izhar to his residence in the ASIO motor vehicle.”

24 The officer was asked about the meaning of “robust discussion and considerable prompting” –

HIS HONOUR

25 In relation to the statement to the accused that “his full cooperation with ASIO…would be required” B15 was cross-examined –

26 I think this answer was a “yes” with an explanation. If it was a “no”, it is unbelievable.

27 It is, to my mind, incontrovertible that the accused was intentionally given to understand that he was under an obligation to accompany the ASIO officers and answer their questions. The nature of this obligation was, not surprisingly, not spelled out. It could not be, because the officers knew perfectly well that the accused was not obliged to accompany them or to answer their questions or provide any information. But I do not doubt that he felt under compulsion to obey the directions he was given lest some action be taken against him or his family by ASIO or some other instrument of government. This is, it seems to me, the natural and obvious meaning both of the words and conduct of the officers on this occasion. Although it is described as a request, I think that his being told to accompany them to a nearby park was an instruction and was intended to be taken as such.

28 That they were going to a park could scarcely have been reassuring to the accused. The officers said that they had planned to take the accused to the park from the car park before they met with him. Indeed, it appears that they did not tell him that they were going to a park until after the accused had got into the car. I am at a loss to understand, if it was desired to interview the accused before taking him back to his home, why it was necessary to go to a park to do so. The following evidence was given by B15 –

29 Any ordinary member of the public, let alone a 21-year-old, would, I think, be disturbed and frightened by being informed by intelligence officers that, rather than going to some office for questioning, this was going to take place (close to dark) in a park where the conversation would be “private”. I do not accept the explanation given by B15 for this conduct. I believe that the true explanation was that it was intended to bring about precisely what I have described as would be likely to have been the response of any ordinary citizen.

30 Officer B14 gave the following evidence –

Q. What, it’s normal to have these conversations in parks, it is, with people such as Mr Ul-Haque?
A. Your Honour, it’s possible to have a conversation with him where we could – we could have a sensitive discussion because we were the only ones who were able to hear it.

Q. Why did you want to have a sensitive discussion with him at all at that point?
A. Because the matters we were discussing were very sensitive.

BARKER

Q. I’m sorry, I’m having trouble hearing you.

HIS HONOUR

31 The very mode of questioning was intimidating. He was not told what was being investigated except in the most general terms. He was told, in effect, that he knew what he had done was wrong. This is reminiscent of Kafka. It is scarcely surprising that he hung his head. A later report by B15 says that he said he did not know what they were talking about.

32 B16 said that he and B15 “also explained to Ul-Haque that ASIO was an intelligence organisation and provided him with information regarding ASIO’s role providing advice to the government on matters of national security”. I do not think that this information would have been likely to have given the accused any great confidence that he was going to be dealt with fairly or properly or that his fears were unfounded. To the contrary, I think that this information was likely to have confirmed those fears. The accused said in his evidence that, in relation to the ability of ASIO to harm him or his family, he believed “anything would be possible because they were involved in the highest levels of government in Australia, that it was in their power to do those things [such as deport him or his family] if you did not co-operate with them”.

33 B16 added, “I remember that during the majority of the conversation, Ul-Haque was looking at the ground and appeared to be avoiding eye contact”.

34 It is obvious from what I have already said that neither the actual powers of the officers nor the legal rights of the accused were conveyed. It is inescapable that this was deliberate. Language was used which was calculated to suggest both that the officers were legally empowered to require the accused to accompany them and that he must answer their questions. This was deceptive and could not have been accidental.

35 The only reasonable conclusion is that the accused was in fact detained by the officers although they knew that they had no legal right to hinder him. Their language was designed to ensure, if possible, that there would be no need to do so. I am satisfied that when he said that he believed he was under arrest and that if he did not comply with what the officers asked him that they would either use physical violence or take him to a more sinister place for interrogation or otherwise do something else to his family or him the accused was telling the truth. Furthermore, I think that this state of mind was intentionally instilled. This analysis of the situation is strengthened by the approach taken during the interrogation by the officers. The statement to the accused, “What we now require from you is your full cooperation with ASIO in resolving the matter by being honest with us” was completely inconsistent with any suggestion that he was free not to answer their questions or that he could go: “full cooperation” that was “required” necessarily involved both accompanying the officers and answering their questions. The officer pointed out to him that he had two choices, “the difficult path or a less difficult path”. The difficult path comprised “stand[ing] here putting these questions to you like this, having you tell us things which we know to be untrue…[or] we can take a less difficult path which would involve you co-operating and providing truthful answers to our questions and assisting us in resolving our concerns”. Again, these were the only two choices available to the accused. Both involved compliance with the officers’ directions. At the end of the conversation, the officer, to use his own words, said, “What I propose to do now is to take you to your home where an ASIO search under warrant is being conducted”. He was told what the officer would do. This was inconsistent with any suggestion that he had a choice in the matter. In law, as the officers well knew, he was not obliged to go to his home or anywhere else, let alone accompany the officers. This was particularly intimidating since it meant that the accused’s younger brother was left at the car park. In short, the accused remained in detention.

The accused is taken to his home

36 The accused and the ASIO officers returned to his parent’s home, leaving Izaz in the car, which he could not drive, at the car park at Blacktown train station. The accused was taken in the ASIO vehicle in the company of B14, B15 and B16. There was something between twenty-five and thirty officers then in the process of executing the search warrant. According to the accused, when he got to the house he went to his family who were sitting in the middle of the lounge room, and saw the officers doing a house search. He said that he was shocked and frightened at the “immense nature of the operation”. The officer’s statements do not deal with what occurred at the house at that time nor with what he did then. At all events, shortly after 9.15pm, B15 said to the accused, “Why don’t we go and pick up your car now?” Izaz got back to the house about 8.45pm, according to the accused, but he did not know how he managed to return. I think it is a sign of the extent to which the accused was under the thrall of the officers that he had not himself suggested before that time that his younger brother should be collected.

37 B14 then drove B15, B16 and the accused back to the car park. B15 said that during the drive he remembered reiterating to the accused “the importance of his being completely honest with us in resolving the matter”. He said that the accused responded, “Yes, I know. I have to tell you the truth”. When they arrived at the car park where the accused’s car was parked (about fifteen to twenty minutes after leaving the residence) B15 asked if the accused minded if he came with him in his car and the accused responded that he did not. They then drove back to the premises with B14 and B16 following in an ASIO vehicle. According to B15’s statement during the return drive there was a general conversation about a number of matters including the accused’s university studies and cricket. B15 took the opportunity of reiterating the need for the accused to be completely honest in discussing matters relating to ASIO’s intelligence investigations. He said that they returned to the house about 10.30pm. Since the trip from the house to the car park took only fifteen to twenty minutes but they were absent for an hour and fifteen minutes, there is a substantial period of time unaccounted for by the officer. The account in the officer’s report states –

iftar

38 One of the accused’s older brothers, Ikram, said he had been told to tell the accused that “you have to co-operate with this investigation and tell them whatever you know”. The accused said that at about 8.45 or 9 o’clock Ikram was taken to another room in the house by ASIO officers and afterwards came back to the lounge and told him some things which he had been told to relay to him [the accused]. Ikram did not give evidence and, although I do not doubt that the conversation occurred as the accused stated in his evidence, I am unable to be sure, it being hearsay, that Ikram related what was indeed told to him. The accused thought it was about 10.15pm that he and the other officers returned to the car park but, I think that this is a mistake and that the reported time of 9.17pm is correct. Nothing depends on this.

39 The accused said that B15 told him, “Look, we need to have another discussion with you and we need you to come with us in the car”. The accused said that he complied and went with the officers in their car back to the car park. He said that the ASIO vehicle was parked next to his vehicle but that he was not allowed to get out of the car. He said that inside the ASIO car “we had about a one hour discussion regarding lots of issues, like my relationship with Mr Lodhi and the particulars of my conversations with him” and that during this time he was seated between B15 and B16 in the back of the car. The accused said that he went with the officers because he believed that they had authority to direct him and that he had no choice but to co-operate. He said that during the trip to the car park the officers reiterated what they had earlier said, accusing him of not being honest with them and saying “you have to tell us the whole truth and tell us the information you have, and this will not end until you give us everything you have and you have to give us full answers and co-operate with whatever we ask you”. On many occasions, he said, the officers told him, “Look, we know a lot more than you do” and “It is in your own benefit to start talking straight with us”.

40 When the accused and the officers returned to the house he was told to sit in the main area in the lounge. At around 12.15am, he thought, a further interview occurred.

41 B15 states, I think relying on his report, that the interview at the house was instigated by him at about 12.04am on 7 November 2003. Again, on the officer’s own account, his approach was a peremptory one. He said, “What we need to do now is to go over the matters that we discussed before in an organised way and in more detail and to conduct a formal interview of you”. Not surprisingly, the accused complied with this direction and they then went into a bedroom at the front of the premises. At no time during this interview was the accused told that he was free to decline to take part if he wished, let alone that he was free to leave the room. The interview went for the following times, recorded by the ASIO search team diarist: 12.04am to 12.55am, 1.00am to 1.07am, 1.55am to 2.05am, 2.09am to 3.00am and 3.17am to 3.45am. The report said that the interview was concluded at 3.45am “to allow Izhar to prepare for prayers and breakfast”.

42 Before moving on to deal with this interview, I should deal with the evidence of the accused’s other older brother, Inam, who said that during the search of the house (at which he was present) some officers, who he took to be ASIO agents, talked to him about 9pm or 9.30pm and told him “that Izhar is in trouble and we need to help them in their enquiries as much as we can”. He was asked to say to Izhar that “I should ask Izhar to co-operate with them”. However, Inam was unable to recall whether he actually conveyed this request to his brother. I should say that I regarded Inam as an honest and credible witness. Inam said that, when Izhar came back to the house at about 8.15, he was in the presence of two officers. He said that he thought he was about to say his prayers. He was taken into what Inam described as his parents’ bedroom for an interview or some discussion which he did not know about. He said that he asked an officer if he could go and talk to him but he was told to sit at the dining table. In my view, this was not accidental. It is obvious that at least one officer was keeping an eye on the time that the accused was in the bedroom with the B15 and B16, since a careful note was made of the times when that interview was interrupted. The accused said that he was kept in the interview room during the whole period. I do not think that the officer, whoever it was, who directed Inam not to speak to his brother, did so accidentally. I have no doubt that it was clearly understood what was happening when the accused was taken to his parents’ bedroom.

43 I have mentioned that the officers were present inside the house by virtue of a warrant to search and seize relevant material. They had no authority at all to direct the occupants of the house as to where they might go, providing they did not obstruct the search. The occupants were entitled, indeed, to be present with any or all of the officers whilst they conducted any particular search and to observe what was being done.

44 To my mind, to conduct an extensive interview with the accused, keeping him incommunicado, under colour of the warrant, was a gross breach of the powers given to the officers under the warrant. The courts have, for over two hundred years, been jealous and rightly jealous, of the use which might be made of search warrants to interfere with the liberty of the citizen and the right of the citizen to his or her own privacy and to maintain the integrity of their personal possessions including, of course, their home. The words of the great Sir Edward Coke, from his Third Institute, “for a man’s house is his castle”…have become an ironic commentary on lost liberty. Whether it is or not, the warrant issued under the hand of the Attorney General in this case did not authorise the conduct of B15 and B16. It matters not that he was asked – as seems to be the case – about objects which were found. That is not ancillary to the search and I do not believe for a moment that B15 or B16 thought it was.

45 It is worth noting at this point that an Australian Federal Police officer, agent Gordge, was present in the room during the interview. He took notes. He did not ask any questions or in any way participate in the interview. He was told to be a mere passive observer. This has significance for what follows. The accused said of this interview –

“And I sat in one of the chairs, and they started interviewing me, and this went on for a long time, for about three hours, with some breaks in between. And they asked me further questions about how I knew Mr Lodhi and if I knew of what was happening in Sydney regarding any terrorist-type plans. And they asked me about my association with the organisation and the nature of the camps and how people go there and things like that. And this went on for about three hours, I would say approximately.”

“Q. Was it the same sort of questioning as had occurred earlier; that is to say, did they dispute or question things you said and did they give you information? Did they prompt answers?
A. Yes, there were instances like that. For example, I would say something and they would say, ‘You know we know a lot about this issue, and we don't think you are telling us the truth.’ And then I would give them a more detailed answer of what they are asking, and then they would say, you know, ‘That's better, you have to cooperate with us in answering these questions.’

Q. Who asked most of the questions?
A. I would say [B15] but [B16] also asked a few questions.

46 B15 gave evidence that the information provided by the accused in the bedroom interview was much the same as that which had already been given by him in the park. We know what this covered from his report and the notes taken by Mr Gordge. How much was the product of “prompting” – that is to say, acceptance of what was put to him by the ASIO officers and, perhaps, elaboration of it – is not known. However, it is known that the “prompting” was constant and that it was only in response to that “prompting” – that is to say “revealing that we did, in fact, know something about the matter” – that “he then gave us an answer that we believed or knew to be truthful about Lashkar-e-Taiba”. B15 concluded that the accused was prepared to admit to things that "he knew [we] probably knew but that he would either lie or deny things that he thought [we] didn’t know”. The generality of the need to prompt would, I think, include the matters relevant to this trial, namely, the training he undertook and the character of LeT. Acceptance under compulsion of the truth of facts put in these circumstances is plainly fraught and necessarily raises the question whether he was saying what was true or what he believed his questioners wanted to hear. Put another way, the accused was told that he must tell the truth; he believed that some unspecified but possibly dire consequences might flow if he did not tell the truth; the ASIO officers told him when they thought he was not telling the truth and told him, or suggested, what the truth was; the inducement to say that what the ASIO officers told him was the truth, perhaps with some elaboration, was a powerful one. That is, of course, why police who question a suspect will not use this method. It is calculated to obtain what the suspect believes the interrogator wants to hear.

47 This conduct by the accused, assuming that B15’s evidence is to be accepted on this point, is in marked contrast to what happened during the interviews with the police, where the accused’s answers were almost all unprompted. What is important to note is that the answers he gave to the police were, to the extent that they covered the matters disclosed by him to the ASIO officers, to the same effect as those given to the ASIO officers. I return to this subject later.

48 When the interview in the bedroom had finished, B15 said that he told the accused that he would like to meet again soon “and have a chat over coffee to discuss other matters in relation to the investigation”, to which the accused said “fine”, that B15 suggested later that day and the accused said, “Okay what I will do is give you a call when I finish at Uni which will be after jumaat prayers”. B15 says that he gave the accused a telephone number and told him to ask for him so that “we could arrange to meet”. B15 says that during the afternoon of 7 November 2003, about 3pm, he had a telephone conversation with the accused in which he said to him, “I won’t be meeting with you for a chat this afternoon as we agreed earlier this morning, however what I’d like you to do is to contact…[Federal Agent Pegg] on [telephone number] and he will want to meet with you at the police centre in Sydney”. He said that the accused said, “Okay, I’ll do that”.

49 The accused’s account of the conversation when the interview was finished is –

A. At the end of the questioning, [B15] said - he gave me his phone number and he said, ‘I'll be in touch with you and we will have further discussion’ or ‘we need to interview you further sometime later today,’ because it was the morning of 7 November. So he said, ‘Sometime later in the day, I will call you and we need to talk further about this, and it - some other people might need to talk to you as well, so keep your mobile on’ or ‘I will be in touch.’ He said words to that effect. And that ‘It is in your interests to cooperate with us and keep providing us answers.’

50 The accused said that he went to the University sometime in the morning of 7 November and that, something after 2 o’clock, B15 called him –

“A. …He said that ‘I will not be having a discussion with you today in person, but’ - like ‘I myself will not be having a discussion with you, but I need you to go to the Australian Federal Police station and I need you to tell them all the answers they ask you.’ And he said words that ‘I cannot emphasise this enough for you, that it is in your own interests to cooperate with them and provide them all the information they ask you about.’
Q. What was your reaction to that?
A. Well, I was - I felt that it was a continuation of the information gathering that had gone on, and I believed that I had to go to the police station to give this interview because if I did not [B15] would get angry or use other tactics to acquire information and other things can happen to me, and I will be arrested or taken to some other place to interrogate me. And I thought I had to therefore give the interviews.

51 B15 was cross-examined about the telephone conversation with the accused. He said that the accused called him, that he provided him with the name of a police officer and a telephone number and told him, ‘He will want you to attend the police office and have a discussion with them’.

instructed

told

encouraged

The veracity of B15 and the accused

52 I have set out quite extensive passages from the evidence of the accused. I regarded him as a candid and reliable witness. Obviously some details may have slipped his recollection since the events in question and obviously he sometimes gave the effect of what was said to him rather than words themselves. Sometimes, he may have brought parts of conversations that occurred on separate occasions together on the one occasion. However, there was nothing in his evidence which I did not think was, in substance, truthful and reliable. I thought his demeanour was open and candid. Moreover, significant parts of the accused’s evidence are supported, if not always by the precise words, certainly by the thrust of the ASIO officers’ evidence.

53 Although I think that much of what B15 said in evidence was truthful, I think that he was very defensive and was not always candid. Some concessions were obtained despite initial evasive replies whilst the plain meaning of the language he used was not always accepted. The following cross-examination is an example –

“Q. What does the word “require” mean?
A. That in order to establish the facts of the matter, that is the serious terrorist investigation with which we were conducting that we needed him to be honest in answering questions that we had of him.

Q. Are you suggesting that you intended to convey that he had a choice about whether he could talk to you or not?
A. Well, we were just saying--

Q. No, are you suggesting that you intended to convey by the words that you used to him that he had a choice about whether to speak to you or not?
A. He always had a choice, your Honour.

Q. That is not my question. Did you intend to convey by the words that you used that he had a choice about talking to you or not?
A. Yes, I did, your Honour.

Q. Why didn’t you tell him that?
A. Well, I was encouraging him to tell the truth.

Q. What didn’t you tell him that he had a choice if you wished to convey that notion to him?

A. I am not in a practice to say to somebody that it is okay to lie to us.

Q. You are not in the practice--
A. Your Honour, I am just saying we are not in the practice of saying to someone it is okay if you lie to us, so we were encouraging him to tell us the truth, simple as that, your Honour.

Q. He may have wished to remain entirely silent?
A. That’s true, your Honour.

BARKER

Q. Quite clearly you offered him no choice but to talk to you. You demanded he give you answers, right?
A. No, I don’t agree that we demanded that he give us answers.

Q. What does ‘we require you to be honest with us and we require your full cooperation’ mean?
A. In order to establish the facts of the case, i.e., the serious counter terrorist investigation we are undertaking, that we required honest answers to establish what was happening.”

54 The answer suggests that all B15 had in mind was the logical necessity that, to establish the facts of the case, honest answers were needed. I think that, however correct this may have been as an exercise in logic chopping, it was not candid. The words “we require your full co-operation” do not convey a mere logical link: unmistakably they amount to an instruction as to what the accused was required to do as a matter of obedience. The officer was both evasive and dishonest in this evidence. There were other examples of evasion in the officer’s evidence. Whilst there was nothing in the officer’s demeanour that suggested he should not be believed, nor was there anything that gave me confidence that he was telling the truth. Overall, I concluded that, where his evidence differed in substance from that of the accused, I preferred the accused’s evidence. Certainly, I am not persuaded that B15 told the truth about those matters.

55 I accept the evidence of the accused as to the substance of his conversation with B15 both in the house when the interview was finished and in the later telephone call. That B15 would have told him to co-operate with the Australian Federal Police was consistent with B15’s whole approach to the accused and to, I am convinced, his own opinion not only as to what the accused should do, but what it was appropriate for him to tell the accused. I do not think it is credible that B15 did not know, by the time he had secured Mr Pegg’s name and telephone number, that it was proposed to conduct a formal interview with the accused. A note in the records of ASIO is to the following effect –

“Following discussions and agreement with AFP [B15] contacted Izhar Ul-Haque earlier this afternoon and asked him to contact the AFP to attend a formal interview to present his side of the story.”

“Q. What did you discuss for half an hour?
A. I can’t recall exactly, but we discussed the fact that he was – Mr Ul-Haque was going to call me as we had agreed earlier that morning and I was going to provide the name of the police officer and the telephone number for the police officer to Mr Ul-Haque and to say to Mr Ul-Haque that that police officer would like Mr Ul-Haque to give him a call and that he would like Mr Ul-Haque to attend the police office to talk with that police officer.

Q. To be questioned by the police officer?
A. To talk with the police officer.

Q. Just an amiable discussion, is that what you thought?
A. I had no indications what the police were intending to do.”

56 Mr Pegg said that he asked B15 if he could give him any details of what the accused had said to him but that B15 had deflected the question, saying words to the effect, “I would be able to interview him and he was co-operative and that I would have the opportunity to speak to him myself”. Indeed, Mr Pegg said that he was not aware even that Mr Gordge had sat in on the interview with the accused on the previous night and he believed that he had not taken part in any corroboration of the questioning of the accused. He had been told this, he said, by Detective Gordge, who said that he had not sat in on any questioning of Mr Ul-Haque. Astonishingly, the senior AFP officer co-ordinating Operation Newport (which involved Lhodi and Ul-Haque), Federal Agent Hurst, was unaware that an AFP officer was present at the interview between B15 and the accused. And this ignorance was shared by her superior, Federal Agent Wildman.

The legal effect of the ASIO officers’ conduct

57 False imprisonment is a misdemeanour at common law “the offence being made out only on proof of imprisonment or detention even in one’s own home”: Davis v The Queen [2006] NSWCCA 392 per Howie J [at [27]] (with whom Basten JA and Whealy J agreed). Further on in his Honour’s judgment, Howie J deals with the history at common law of the misdemeanour of kidnapping and false imprisonment, citing with approval the following passage from the speech of Lord Brandon of Oakbrook in R v D [1984] AC 778 at 800-801 –

“From this wide body of authority six matters relating to the offence of kidnapping clearly emerge. First, the nature of the offence is an attack on, and infringement of, the personal liberty of individuals. Secondly, the offence contains four ingredients as follows: (1) the taking or carrying away of one person by another; (2) by force or by fraud; (3) without the consent of the person so taken; and (4) without lawful excuse. Thirdly, until the comparatively recent abolition by statute of the division of criminal offences into the two categories of felonies and misdemeanours, the offence of kidnapping was categorised by common law as a misdemeanour only. Fourthly, despite that, kidnapping is always regarded, by reason of its nature, as a grave and (to use the language of an earlier age) heinous offence. Fifthly, in earlier days, the offence contained a further ingredient, namely that the taking or carrying away should be from a place within the jurisdiction to another place outside it; this further ingredient has, however, long been obsolete, and forms no necessary part of the offence today. Sixthly, the offence was in former days described not merely as taking or carrying away a person, but further or alternatively as secreting him; this element of secretion has, however, also become obsolete, so that, although it may be present in a particular case, it adds nothing to the basic ingredient of taking or carrying away.”

58 In R v Wellard [1978] 3 All ER 161, where the appellant had persuaded the female victim that he was a police officer and that therefore she was obliged to go with him, and walked with him to his car, this was sufficient to constitute the crime of kidnapping. Here, the officers conveyed to the accused that he was obliged to accompany them, knowing that this was false.

59 Although there is now a statutory offence in New South Wales, namely that constituted by s86 of the Crimes Act 1900, I do not think that the common law has been thereby abrogated. At all events, in this case, it seems to me that, at least officer B15 committed that offence, the elements of which are the taking or detaining of a person without that person’s consent (relevantly) “with the intention of obtaining an advantage” within the meaning of s86. In relation to the elements of taking or detaining it is not necessary to establish that the alleged offender knew that the victim was not consenting to accompanying him or her: if he or she was reckless as to that fact and the offender intends to detain the victim regardless whether the victim consented or not, this is sufficient: R v DMC (2002) 137 A Crim R 246. As to the advantage, the reason for the detention was plainly in order to extract information from the accused. It is immaterial that the officer believed he was entitled to extract that material or even that he was extracting that material for a worthy cause. I should mention the additional consideration that a wrongful imprisonment amounts to a criminal assault even though no violence or threat of violence is actually used: see R v Linsberg (1905) 69 JP 107.

60 It may not matter very much whether the officers committed the crime of false imprisonment or the tort. As Kirby J observed in Ruddock v Taylor [2005] HCA 48 at 137, “The tort of false imprisonment…reflects the fundamental interest of the common law in protecting individual liberty and freedom of movement”. (His Honour dissented as to the outcome but this proposition was uncontroversial.) Kirby J cited the following passage from Trobridge v Hardy (1955) 94 CLR 147 at 152, where Fullager J said, “The mere interference with the plaintiff’s person and liberty constituted prima facie a grave infringement of the most elementary and important of all common law rights”. Kirby J went on to say –

In re Bolton; ex parte Beane

lettre de cachet

prima facie

61 In this case there was no warrant of any kind justifying the officers, under colour of their office, to detain the accused. Furthermore, they did not do so under any mistaken view about the matter. They were aware that what they were doing was unlawful. They were perfectly well aware that they were not entitled to detain. Nor was there any suggestion of emergency that might have provided some mitigation for their conduct. Yet, B15, in the presence of B16 who assisted him, clearly gave the accused to understand that he was legally obliged to obey their instructions. The suggestion, in the circumstances, that the accused had a choice to disobey them is fanciful. It existed in point of law but not in reality. This conclusion is not undermined by the consideration that, had he indeed decided to ignore the officers, they may not have actually physically restrained him.

62 I do not have to be satisfied beyond reasonable doubt that the ASIO officers committed the offences that I have mentioned. Nevertheless, an adverse finding that they did so should not be made without carefully examining the evidence, bearing in mind that the issue to which it is directed is the commission of a criminal offence or conduct involving significant moral turpitude. Bearing in mind this caution, I am satisfied that that B15 and B16 committed the criminal offences of false imprisonment and kidnapping at common law and also an offence under s86 of the Crimes Act 1900. It follows, a fortiori, that they committed the tort of false imprisonment. Their conduct was grossly improper and constituted an unjustified and unlawful interference with the personal liberty of the accused. So far as their conduct in his parents’ home is concerned, it also constituted an unlawful trespass against the occupants, since they gained admittance under colour of the warrant which did not authorise what they did: keeping the accused incommunicado in a bedroom, let alone subjecting him to compulsory questioning.

The interview of 7 November 2003 with AFP

63 I have already touched on the commencement of the arrangements that led to this interview. Precisely what Mr Pegg knew before he commenced the interview is a little uncertain. However, he was aware that the accused had been questioned the previous day, indeed, in the early morning of the same day, by ASIO. He was aware, I think, of what the accused had told ASIO since there had been a report to senior AFP officers which, in turn, I think had been relayed to him via officers Hurst and Wildman. There is an ASIO note of a meeting with these officers, in which thanks are conveyed for “the assistance [given by ASIO] in preparing material for the interview” of the accused. It was difficult to obtain information from Mr Pegg or Mr Gordge as to what Mr Pegg knew before this interview about what the accused had earlier told ASIO. However, I am satisfied that he was aware of the substance of what had been conveyed. And it is obvious that Mr Gordge knew in detail what the accused had said.

64 Mr Pegg, not surprisingly, accepted that it was important that the accused should understand that he was speaking voluntarily. It will be recalled that on B15’s own statement, he had told the accused –

“You’re in a substantial amount of trouble. We’re conducting a very serious terrorist investigation at the moment and that investigation has led us to you. We have many means of investigation and we hold considerable information about you. What we know require from you is your full co-operation with ASIO resolving the matter by being honest with us.”

65 The effect of concealing from Mr Pegg these crucial parts of the conversation between the ASIO officers and the accused was that the caution which Mr Pegg administered, which was in the conventional form, was completely inadequate. The caution used was –

66 Mr Pegg said that, had he been aware of what B15 had said to the accused, he would have completely differentiated the roles and the processes of ASIO and the AFP and would have adjusted the caution to ensure that any promise or assertion made by ASIO suggesting a legal obligation to speak was no longer operating. He would also need to ensure that any threat, whether express or implied, was rendered entirely innocuous.

67 On reflection, it would in fact have been very difficult to craft a caution which would deal adequately with what B15 had told the accused. As I have said, the accused was given to understand that it was in his interests to co-operate, and there was an implicit threat that if he did not do so some adverse consequences might follow. These consequences were not spelled out. But I think it would have been very difficult for an officer of the Australian Federal Police to give anyone in the accused’s position an assurance that ASIO or some other agency of government would not take some retributive action against him if he did not co-operate with the authorities. Aside from anything else, no Australian Federal Police officer would have had the authority to give such an assurance.

68 It is surprising that Mr Gordge, so far from not telling Mr Pegg about the interview which he had attended in the early hours of the morning of the same day as the interview with the Australian Federal Police, actually told him that he was not present. Of course he knew, though Mr Pegg did not, that the accused had been subjected to robust questioning with much prompting by the officers of ASIO, combined with implicit threats and demands for co-operation. And, of course, he knew that the accused knew that he knew what he (the accused) had told the ASIO officers. The implication, from his mere presence, that the accused should tell Mr Pegg what he had already told ASIO was obvious, and entirely inappropriate.

69 As Mr Gordge was not questioned about this, the reasons for not informing Mr Pegg of what had happened must be left to surmise. Whatever the reason, the effect was that Mr Pegg gave the accused a completely inadequate caution and commenced questioning him unaware of the improper conduct of ASIO that had commenced some twelve or so hours previously.

70 Nothing was done either by ASIO or, as it happened, Mr Gordge or other members of the AFP, to remove the effect of what had been said to the accused by the ASIO officers. I find it very difficult to accept that this was accidental. Mr Gordge certainly must have been aware of the necessity to ensure that anything said by the accused was voluntarily communicated, even if (as seems to be the case) the ASIO officers were not – a reflection of their incompetence, if nothing more sinister.

71 Be that as it may, the accused said that he regarded the caution as a mere formality. He saw that Mr Pegg read it out and assumed, rightly I think, that it was read out to everyone who was interviewed by the Police. So far as the caution was concerned and rights to communicate with friends or relatives or a legal practitioner went, the accused said –

“A. Well, my state of mind was that these are police formalities and procedures. My real concern was that if I did not tell the police all the information they ask me that I will be in more serious trouble, and [B15] would be told of my disobedience in a way, and then other matters will be used to interview me, and I felt that I had to cooperate. I did not really regard them - in English that is what they meant, but in my mind really I felt I had no choice but to answer the questions.

HIS HONOUR

Q. Mr Gordge was there?
A. Yes, Mr Gordge was there.

Q. Did you recognise him from the previous night?
A. Yes, I did, your Honour.

Q. As being the man who was present when [B16] spoke to you in the bedroom?
A. Yes, I recognised him as the same person, and that also affected my mind because I had relayed a lot of information to Mr Gordge and it first of all seemed that I am reiterating the same things that I told the police earlier. And also that if Mr Gordge found something which did not conform with the bedroom interviews, that he would tell Mr [B16] or by himself be - do some other things against me that will be - that will put me in danger.

BARKER

Q. To what extent did the questioning by [B16] and things said by [B16] on the night before influence you when you decided to answer questions to the Australian Federal Police?
A. It affected me immensely because to this day I have never got over that trauma, and I believe that when he said, for example, that "we can do this the easy way or the hard way," I believed that unless I kept talking and kept answering their questions that they will use the hard way and the hard way to me meant a lot of things. It meant, for example, that I could either be deported, I could be arrested, I could be taken to a secret location for interrogation and also and my family could also be immensely affected and my brothers, for example. That's what I thought, that they would be taken into custody to pressurise me into telling the authorities all the information. And in my mind, for example, it was - it was a similar government authority that was asking me questions again, and Mr Gordge was already there in the previous night, so I complied and cooperated.

72 I have carefully watched and listened to the videotaped recording of the interview between Mr Pegg and the accused on this occasion. The accused sat on one side of a desk with Mr Pegg and Mr Gordge opposite to his left and right. For virtually the entire interview the accused’s head was bowed and he made no eye contact. When the accused was asked why he never made eye contact with the officers, and kept his head down he said –

“Well, I was just a bit afraid of authority in a way or I didn’t want to – yeah, I was sort of – what is the word? Sort of, feeling in fear or – and if you look in their eyes then – sorry, I can’t comprise a sentence. What I mean is I felt I had to be sort of obedient, and I also sometimes think like that, I don’t know what the answer is, sorry.”

73 The overwhelming impression that I got from watching the interview is that the accused was cowed. It must be remembered, I think, that he was only twenty-one years of age, I think he was fairly naïve, and I think he had found the experience of the previous twelve hours or so very frightening and worrying. Although no specific threats had been made, the circumstances were ominous and frightening and the language used by ASIO was, I think, calculated not to set him at ease. At the end of the interview the following questions and answers were given –

"Q650. Have the answers you have given during this interview been made of your own free will?

A Yes, yes.

Q651. Has any threat, promise or inducement been held out to you to make the answers

you have given during this interview?

A Can you repeat that, sorry, threats or - ?

Q652. I'll go through it slowly.

A Sure.

Q653. Has anybody threatened you to make the answers you have given during this interview?

A No, mate, no.

Q654. Has anybody promised you anything to make the answers you have given during this interview?

A No, no.

Q655. Has anybody induced you or compelled you to give the answers that you have given during this interview?

A No, no, compelled me, no.

Q656. I'm sorry, I just was concerned because you spoke so softly there. Do you agree that nobody has

compelled you?

A No, no-one has compelled me, no. I spoke with my own will, you know.

Q657. Do you agree the time is now seven seventeen pm?

A I agree the time is seven seventeen.

Q658. This interview is now concluded."

74 The accused said in his evidence that he did not give truthful answers to these questions although he understood them. He said –

“A. I, in my state of mind, I did not have any free will to answer these questions. As I explained before, I believe that if I did not tell Pegg and Gordge all the answers as [B15] says, he can't emphasise enough that, ‘You have to answer the questions’, that something bad will happen to me. This was already 4 hours into the interview and these were read from a script and I just wanted to finish the interview.

Q. Because you wanted to finish the interview, you just gave that particular answer to question 650 as well as the various answers that followed. Is that right?
A. Yes, I just said ‘yes’ or ‘no’ without actually evaluating the questions.

Q. Do you see question and answer 656 on that page?
A. Yes.

Q. Can you just read that question and answer to yourself, please?
A. Yes I've read that.

Q. When you said the words, ‘No, no-one has compelled me, no.’ What did you mean?
A. As I said, I wanted to finish off the interview and I didn't want to get into a discussion with the officers about how the events of the last 24 hours had affected me and how important it was for me to comply with the police and I just regarded them as police procedures and formalities.

101 It is obvious that the admissions were made in the course of official questioning within para85(1)(a). Paragraph 85(1)(b) is also satisfied. The charge here was laid by the Commonwealth Director of Public Prosecutions. He was, of course, entirely independent both of ASIO and the AFP. However, it is clear that his decision whether to charge or not was capable of being influenced by ASIO or the AFP. For example, if either ASIO or the AFP had informed the Director that there were good public policy grounds for not charging the accused, that would undoubtedly – and rightly – influence the Director. Of course, he would not be influenced by an argument that there were public policy grounds for charging the accused with an offence unless, independently, he was satisfied that there was a good legal warrant for doing so. In this case, it was hoped from the beginning that the accused would be used as an informant against Lodhi and, perhaps as a witness. That there might be good grounds for not charging him was therefore no theoretical possibility but a practically available potential outcome. Accordingly, the admissions here fell within subs 85(1).

102 It is, therefore, for the prosecution to establish that ”the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected”. This question is not directed to whether the admissions are true or not, but to the circumstances in which it was made. I have already described the course of the ASIO questioning of the accused and B15’s evidence about what was comprehended by the description of that questioning as “robust discussion and considerable prompting”. Questioning of that kind is calculated to extract what the person being questioned believes the questioner wants to hear. It is inevitable that the truth of what is said is likely – if not certainly – to be adversely affected. The prosecution’s ability to establish, as it must, that this is not the case is made doubly difficult by the fact that there is no record made by ASIO of the course of questioning, though there is a narrative of the results.

103 The interviews by the AFP are infected with the same problem: although, considered alone, they do not raise the problem of truthfulness, they must be considered in the context of the questioning of the accused as a whole. I am not satisfied that, having regard to those circumstances, the admissions sought to be tendered were made in circumstances that their truthfulness was not likely to be adversely affected. Accordingly, the interviews are not admissible upon this ground also.

104 Section 138 of the Evidence Act 1995 is as follows –

138 Exclusion of improperly or illegally obtained evidence

(b) in consequence of an impropriety or of a contravention of an Australian law,

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:

(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(b) the importance of the evidence in the proceeding, and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d) the gravity of the impropriety or contravention, and

(e) whether the impropriety or contravention was deliberate or reckless, and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

105 Enough has already been said to demonstrate that the admissions were obtained in consequence of improper conduct. So far as the admissions concerning training are concerned, the admissions have considerable probative value. I am sceptical that the admissions concerning the character of LeT have much weight, albeit that they may be admissible. Although the offence itself is serious, the conduct of the accused was of relatively minor criminality. Indeed, I think that he did not know he was committing a crime under Australian law, a view shared by Federal Agent Gordge, as appears from what he told the accused in the interview of 7 November about the significance of the proposed proscription of LeT. The impropriety of B15 and B16 was intentional and calculated to produce the very admissions that were made. It was grave. There is no suggestion that the officers acted contrary to ASIO protocols and good reason for thinking that they did not. There are a number of ways by which the evidence might have been obtained, including the use of detention warrants, which were not sought.

106 The interviews should be excluded under s 138 of the Evidence Act 1995.

107 In the circumstances, it is unnecessary for me to consider other modes of excluding the evidence.

The meeting with AFP officers at the accused’s home

108 The police, through weekly telephone calls they “requested” the accused to make were keeping tabs on him.

109 On 28 November 2003, according to the accused, he called the AFP office at 10am as designated by Mr Pegg, but Mr Pegg was absent and he left a message for him. The accused said that around 11am Mr Pegg called him back and said that the police were coming to his house in a few minutes. The accused said that Mr Pegg was accompanied by Federal Agent Gawel. They came into the main lounge room and they said, “Izhar, we are concerned that you have left the house or you have absconded in a way because you did not call us”. The accused responded, “Look, I did call you, I left a message for you. You can check with your secretary or receptionist”. The accused said that he felt “I had done a big crime by not telephoning them”. The accused’s brother, Inam, was there and asked the officers if they wished to sit down and have some cold drinks. The officers said, “Izhar, we need to have a private discussion with you. Let’s go to the backyard”.

110 The accused gave the following account as to what transpired –

“A. …Once we got to the backyard they are all - and their appearance changed and they started with – Mr Pegg and Gawel talked continuously. They said, "Look, you are being dishonest with us. You're not providing us all the information. You have been very disloyal to us and we need you to give full and honest answers. We need your full cooperation." I said, "Officers, I've told you everything I know and I've had so many discussions with you, what other areas do you want me to elaborate further? Is there any particular point you want me to discuss further? Any person you want me to tell you more about? I don't know what you're asking. I can't create the information for you. Please. I don't understand where you're coming from." Then they still said the same sentences that, "you're being dishonest with us" and things like that.

111 There was further conversation about the accused spying for the AFP, telling the accused, amongst other things, that he was “in big trouble and it can only get worse if you don’t co-operate with us”. After some further discussion about visiting a mosque the accused deflected the conversation by saying, “Look, officers, give me some time to talk to my family about this”. They said, “Okay, you should come back to us on 1 December and tell us your decision and remember that it’s only in your benefit to do what we tell you”. The accused said that the officers then left the house. The accused explained that he was psychologically unable to function as a spy, believed that that Lodhi was a dangerous person and he feared for his life if he spied on him. This conversation occurred, the accused said, near the house at the back, standing next to his brother, Inam’s, room.

112 Mr Pegg recalled going to the accused’s house on 28 November 2003 to speak to the accused to ascertain whether he would further assist the Federal Police by undertaking covert enquiries or acting as a witness. The accused was told that, if he gave any assistance, this would be presented to the court although the Police “were not promising anything”. Mr Pegg said that there was a discussion with the accused about his relationship with Lodhi and the accused said that he had been suspicious about what Lodhi had wanted but that if he had been asked to do anything that could have been described as jihad activity in Australia he would have walked away. The officers informed the accused that his matter was to be referred to the Commonwealth Director of Public Prosecutions and he could be facing charges concerning what he had already revealed. In a report about this meeting by Mr Pegg, it was stated, “Police further stated that Ul-Haque’s legal situation had the capacity to possibly benefit from assisting police with further information and with enquiries on our behalf”. He was told that the police were not promising anything. He “could not hope to gain from this offer”. (I leave aside the apparent paradox.) There was conversation about whether the accused would wear a wire. The report goes on “further stated that he would, without really committing himself to the task, speak to Lodhi”, but that the officers did not accept this offer, merely stating that “there were a number of options he could be asked”. The report stated that the accused agreed to attend the AFP on 1 December when this matter would be discussed further. Mr Pegg denied suggesting to the accused that he was being dishonest or disloyal or had been concealing anything. He denied that the accused said that he could not know something he did not know and could not create new information. He did not think it was correct that he told the accused that he didn’t think he had revealed the whole truth and that more information was wanted from him. He denied suggesting that the accused would not want to miss the third year of his medical studies and that this might happen if he was in custody. He denied saying to the accused that he would not be able to resume or continue third year if he did not co-opperate but his normal life could continue if he did. He denied that the accused refused to wear any microphones or deceive people and listen in on their conversations. He denied suggesting that the accused should go to certain locations such as mosques and report conversations that occurred or record conversations with other people. He denied any pressure or any threats to make either his life or that of his family difficult.

113 I have already mentioned that the accused’s older brother, Inam, gave evidence on the voir dire about what happened at their house on the evening of the search. He also gave evidence about what occurred on 28 November 2003. He said that he was at home on that day with his mother and the accused when the two police officers arrived. He said they came into the house and wanted to speak to the accused. He said that after a short time they took the accused out to the back to have a conversation with the accused. Inam went to his bedroom and, when the AFP officers went with the accused into the back, he could hear their conversation. He said –

“They started asking Izhar, they started saying to Izhar he hasn't been fully cooperative with them. Izhar said words to the effect of that he has told them everything that he knew. The AFP officers further said that third year is a very difficult year for medicine, and they can make life very difficult for Izhar if he does not cooperate with them. Izhar said words to the effect of, "I have told you everything and if" - the AFP officer said words to the effect of he can cooperate with them by going into various mosques in Sydney, and listening in to the conversation, and then relaying that information back to them. Izhar was obviously - Izhar was a bit confused and--

CROWN PROSECUTOR: I object to that.

BARKER

Q. What did he sound like when he spoke?
A. He wasn't sure what to say to them at that point of time. He said words to the effect of that "I will speak to my family and then come back to you." One of the AFP officers said words to the effect of that he is not in a position to refuse them.

Q. Izhar is not in a position?
A. Izhar is not in a position to refuse them.

Q. Did you hear Lodhi mentioned?
A. No, I do not recall Lodhi being mentioned in that conversation.

114 Inam was cross-examined about other parts of the conversation which were the subject of the report by Mr Pegg. Inam said that he did not recall those parts of the conversation although he remembered a reference to the possibility of his brother wearing a wire or listening device.

115 This conversation assumes some importance because it shows, if the accused’s evidence be true, that Mr Pegg and Mr Gawel were, in substance, threatening the accused with dire consequences if he did not co-operate further with police. At the same time, although the accused said that he was prepared to tell them everything he knew that was as far as he was prepared to go to co-operate with them but he was not willing and was unable to spy on Lodhi or other persons.

116 In evaluating the contradictory accounts, there are two significant matters to place into the scales. As I have already said, I do not believe Mr Pegg’s denial of the conversation alleged by the accused to have occurred when the first record of interview was completed on 7 November 2003. I have concluded that his credit is therefore adversely affected. Of course, it is no doubt true, as the Crown prosecutor submitted, that this does not mean that the rest of the evidence of Mr Pegg should be disbelieved. He submitted for a number of reasons that I should believe that he was a candid and truthful witness. I do indeed accept that the bulk of Mr Pegg’s evidence was truthful. However, I do not accept that in respect of those parts of the evidence in which he is contradicted by the accused, I should prefer his account. Having decided, as I reluctantly feel I must, that Mr Pegg did not tell the truth about the conversation following the first interview with the accused, a question mark as to his veracity necessarily attaches to other portions of his evidence which are not independently corroborated. I prefer the accused’s evidence over that of Mr Pegg where they are in contradiction.

117 So far as the conversation of 28 November 2003 is concerned, however, there is an additional factor, namely the evidence of Mr Inam Ul-Haque. There are, of course, good reasons for being sceptical about its truthfulness, because he is not a truly independent witness. I do not doubt that he loves his younger brother and would be prepared to do what he could to help him. However, I do not believe that he fabricated the account that he gave of the conversation in the back of his home on the day in question. I do not find it surprising that he may not now recall the other details of the conversation, most of which were not controversial. I notice that, in respect of the proposal to wear a wire, he could not recall who it was that made the suggestion although it is agreed that it was his brother who did so. Nor did he recall whether his brother refused to wear a wire or not. All in all, the differences between his brother’s account and his own of that conversation, tend to support the inference that they have not put their heads together to fabricate the threats which they allege were made by one or other of the police officers. Inam’s creditworthiness is supported also by the fact that, having been told during the search at the house that ASIO required his brother’s cooperation, he said he could not recall if he passed that information on to the accused. Had he been desirous of fabricating evidence to support his brother, this lapse of memory would not have been admitted.

The interview of 9 January 2004

118 The third record of interview was, of course, at a considerable remove in terms of time from the first and second interviews. On the other hand, as Mr Pegg agreed, he had kept regular contact with the accused for the purpose (which I accept) of cultivating him and no doubt for other reasons relating to security. Even if it were not for the conversation of 28 November I would have concluded that the Crown had not established that the third interview was not influenced by the oppressive conduct of ASIO.

119 Accepting the substance of the evidence of the accused about the meeting of 28 November 2003, it follows that the record of interview of 9 January 2004 must have been affected not only by the threats of 6 and 7 November 2003 by the ASIO officers but also by the threats made by Mr Pegg and Mr Gawel on 28 November 2003. Although there were further conversations with these officers, I do not find it necessary to deal with them. It seems plain that the accused’s assertion that the cautions administered to him before the commencement of the interviews were mere formalities should be accepted. I do not doubt that by this stage they were indeed just formalities. As to the accused’s agreement at the end of the interview that he had not been induced by any threat or promise to give the answers, I accept that he regarded this also as simply a matter of form and that when he acknowledged that he acted of his own free will he was not telling the truth, he was exercising the choice which he thought he had between co-operation or some unidentified but worrying, indeed frightening, adverse consequence for him or for him and his family.

120 It was submitted that I should infer from the fact that there were occasions during the interviews when the accused did not accept a suggestion from the officers that he was therefore not really compliant and his will had not been overborne by what had earlier occurred. Firstly, this is not the relevant test under s84 of the Evidence Act 1995. The question is whether the prosecution can show that the accused was not influenced by the oppressive conduct. At all events, the mere fact that the accused sometimes demurred does not seem to amount to much in the face of his overwhelming compliance. It is also submitted that his refusal to spy for the AFP amounts to an assertion of independence inconsistent with his assertion that he felt he must cooperate. To an extent, this is true. But the reasons he gave for his refusal related to his inability to do what was asked and the fear he had of the repercussions of discovery. This argument is unconvincing.

121 I have not set out any conclusions in respect of this interview by reference to the other sections of the Evidence Act. For obvious reasons, having regard to what I have said above, I would reach the same conclusions as I reached in connexion with the earlier interviews.

Conclusion

122 The records of interview of 7 and 12 November 2003 and 9 January 2004 are inadmissible.

**********

27/02/2008 - Typographical errors - Paragraph(s) 24, 31, 73

Actions

Download as PDF Download as Word Document

Citations

R v Ul-Haque [2007] NSWSC 1251

Most Recent Citation

Morrison v Minister for Immigration and Citizenship [2008] FCA 54

Cases Citing This Decision

14

Habib v Nationwide News Pty Ltd [2010] NSWCA 34

R v Pham [2024] NSWSC 1687

R v Cranston (No 9) [2021] NSWSC 1413

Cases Cited

6

Statutory Material Cited

3

Davis v R [2006] NSWCCA 392

R v DMC [2002] NSWCCA 513

Ruddock v Taylor [2005] HCA 48

Cited Sections

CITATION:	R v Ul-Haque [2007] NSWSC 1251 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	15/10/07, 16/10/07, 17/10/07, 18/10/07, 19/10/07, 22/10/07, 23/10/07, 24/10/07, 25/10/07, 26/10/07, 30/10/07, 31/10/07, 2/11/07, 5/11/07
JUDGMENT DATE :	5 November 2007
JUDGMENT OF:	Adams J at 1
DECISION:	The records of interview of 7 and 12 November 2003 and 9 January 2004 are inadmissible.
CATCHWORDS:	Admissibility of interviews with AFP - prior improper conduct by ASIO - whether ASIO conduct criminal - false imprisonment - kidnapping - meaning of "oppressive" - onus of proof
LEGISLATION CITED:	Criminal Code s102.5(1), 100.1, 102.1 Crimes Act 1900, s86 Evidence Act 1995, s84, 85, 138
CASES CITED:	Davis v The Queen [2006] NSWCCA 392 R v D [1984] AC 778 R v DMC (2002) 137 A Crim R 246 R v Linsberg (1905) 69 JP 107 R v Wellard [1978] 3 All ER 161 Re Bolton; ex parte Beane (1987) 162 CLR 514 Ruddock v Taylor [2005] HCA 48 at 137 Trobridge v Hardy (1955) 94 CLR 147
PARTIES:	Regina Izhar Ul-Haque
FILE NUMBER(S):	SC 2005/422
COUNSEL:	Crown: Mr G. J. Bellew SC/ Mr M.C. Bracks Accused: Mr I. Barker QC/ Mr P. Lange Cth: Mr L. Robberds QC
SOLICITORS:	Crown: Commonwealth Director of Public Prosecutions Accused: Lawyers Corp Cth: Australian Government Solicitor