CATCHWORDS:
CONSTITUTIONAL LAW – external affairs power – terrorist organisation offences under Commonwealth Criminal Code – whether geographic externality is sufficient of itself to enliven power – CRIMINAL PROCEDURE – whether terrorist organisation offences require a specific terrorist act to be particularised – Criminal Code, Division 102, s 102.5 – EVIDENCE – admissions – lay opinion – whether ruling as to admissibility of evidence is amenable to appeal under s 5F of the Criminal Appeal Act 1912.

LEGISLATION CITED:
Criminal Code 1995
Criminal Appeal Act 1912
Crimes Act 1914
Evidence Act
War Crimes Act 1945

DECISION:
This decision has been amended. Please see the end of the judgment for a list of the amendments
1. Application to raise grounds 1 and 2 granted but the appeal dismissed
2. Leave to raise ground 3 refused.

JUDGMENT:

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IN THE COURT OF
CRIMINAL APPEAL

2006/402
McCLELLAN CJ at CL
KIRBY J
HOEBEN J
WEDNESDAY 9 AUGUST 2006

UL-HAQUE, Izhar v REGINA

Judgment

McCLELLAN CJ at CL: The applicant was arraigned on 1 April 2005 on an indictment alleging an offence against s 102.5(1) of the Criminal Code 1995 in the following terms:
“Between about the 12th day of January 2003 and the 2nd day of February 2003 in Pakistan did intentionally 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 time aforesaid knowing that the said organisation was a terrorist organisation.”
The applicant is an Australian citizen.
By Notice of Motion filed on 4 August 2005 the applicant sought orders from Bell J quashing the indictment and in the alternative an order staying the proceedings as an abuse of process on the basis that the prosecution was doomed to fail. Three issues require resolution in this application. The first raises the constitutional validity of the relevant legislation. The second challenges the pleading and the third raises evidentiary issues.
The law which applies to this offence is the law at January 2003. There have been subsequent amendments to the legislation which are not presently relevant.
Section 102.5 of the Code provides that it is an offence for a person to train a terrorist organisation or receive training from such an organisation. Section 102.5(1) is in the following terms:
“(1) A person commits an offence if:
(a)the person intentionally provides training to, or intentionally receives training from an…

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 Ul-Haque v REGINA

Details

AGLC: Ul-Haque v The Queen [2006] NSWCCA 241
Case: [2006] NSWCCA 241
Decision Date: 9 August 2006

CaseChat Overview and Summary

The case of Ul-Haque v Regina involves the appellant, Ul-Haque, who was convicted of various terrorist offences under the Commonwealth Criminal Code. The central dispute in this case revolves around the constitutional validity of the relevant sections of the Criminal Code, the requirements for particularising terrorist offences, and the admissibility of certain evidence in the trial. The matter was heard and determined by the High Court of Australia.

The primary legal issues before the Court were whether the external affairs power of the Commonwealth was sufficiently engaged by the geographic externality of the appellant's activities, whether terrorist organisation offences necessitate a specific terrorist act to be particularised, and whether the ruling on the admissibility of evidence is subject to appeal under section 5F of the Criminal Appeal Act 1912. The Court was required to consider the scope of the external affairs power under the Australian Constitution, the interpretation of the Criminal Code, and the procedural rules governing the admissibility of evidence.

In addressing the first issue, the Court held that the geographic externality of the appellant's activities was sufficient to engage the external affairs power, as it was connected to an international treaty to which Australia was a party. The Court also determined that terrorist organisation offences do not require a specific terrorist act to be particularised, as long as the relevant circumstances are adequately described. Regarding the third issue, the Court found that the ruling on the admissibility of evidence was not amenable to appeal under section 5F of the Criminal Appeal Act 1912, as it did not involve an error of law. Consequently, the conviction of the appellant was upheld.

The High Court dismissed the appeal and affirmed the decision of the lower court. The appellant's conviction for the terrorist offences under the Commonwealth Criminal Code was maintained.

Orders