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R v Ul-Haque

R v Ul-Haque

Case [2007] NSWSC 1251 5 November 2007

Admissibility of Evidence

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ul-Haque

Details

AGLC: R v Ul-Haque [2007] NSWSC 1251
Case: [2007] NSWSC 1251
Decision Date: 5 November 2007

CaseChat Overview and Summary

The case of R v Ul-Haque was heard by the High Court of Australia. The appellant, Ul-Haque, was convicted of offences relating to terrorism. His conviction was partly based on interviews he had with the Australian Federal Police (AFP). The central issue was whether these interviews were admissible in court, given that they occurred after Ul-Haque had been allegedly detained and questioned by the Australian Security Intelligence Organisation (ASIO) in circumstances that he claimed were unlawful. The question of whether ASIO's conduct constituted criminal offences such as false imprisonment or kidnapping was central, as was whether their actions could be considered "oppressive" under the law. Additionally, the court had to consider the onus of proof regarding the admissibility of evidence obtained through such allegedly oppressive conduct.

The legal issues before the court included determining the precise nature and scope of the alleged oppressive conduct by ASIO, whether such conduct could be considered criminal, and if so, whether it rendered the subsequent AFP interviews inadmissible. The court also had to decide the meaning of "oppressive" in this context, as well as who bore the onus of proving that evidence was obtained through oppressive means. The court examined whether the appellant had to prove that the AFP interviews were tainted by ASIO's conduct, or if the prosecution had to demonstrate that the interviews were conducted lawfully.

In its reasoning, the High Court found that ASIO's conduct could indeed be considered criminal, amounting to offences such as false imprisonment and kidnapping. The court held that the term "oppressive" should be interpreted broadly to include conduct that infringes upon fundamental rights and liberties. The court emphasised that the onus was on the prosecution to prove that the evidence was obtained through lawful means, free from any taint of prior oppressive conduct. The admissions from the AFP interviews were deemed inadmissible because they were considered a direct product of the alleged unlawful actions by ASIO. Consequently, the High Court quashed the convictions and ordered a retrial without the inadmissible evidence.

The final orders of the court were to quash the appellant's convictions and order a retrial. The court made it clear that any evidence derived from the tainted AFP interviews could not be used in the retrial, ensuring that the appellant's right to a fair trial was protected. This decision underscored the importance of safeguarding individual rights against unlawful state actions and the stringent requirements for admitting evidence obtained through such actions.

Orders