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Court of Criminal Appeal 9 August 2006

UL-HAQUE v REGINA

[2006] NSWCCA 241

Public order & justice offences
CONSTITUTIONAL LAW EXTERNAL AFFAIRS POWER CRIMINAL PROCEDURE CRIMINAL CODE, DIVISION 102, S 102.5 EVIDENCE ADMISSIONS

Citation: UL-HAQUE v REGINA [2006] NSWCCA 241
Court: NSW Court of Criminal Appeal
Date: 9 August 2006
Judges: McClellan CJ at CL; Kirby J; Hoeben J

Background

The appellant was an Australian citizen charged under s 102.5(1) of the Criminal Code 1995 with intentionally receiving training from a terrorist organisation, namely Lashkar-e-Taiba (LeT), in Pakistan between January and February 2003. The alleged training related to combat and the use of arms. At the time of the alleged conduct, LeT had not been specified as a terrorist organisation by regulation, meaning the Crown would need to prove at trial that LeT met the statutory definition.

Before trial, the appellant applied to Bell J in the Supreme Court to have the indictment quashed or the proceedings permanently stayed. The application was refused. The appellant then sought to challenge that refusal in the Court of Criminal Appeal on three grounds: constitutional validity, adequacy of the pleading, and admissibility of certain evidence.

  • Whether s 102.5(1) of the Criminal Code 1995 was a valid exercise of the Commonwealth's external affairs power under s 51(xxix) of the Constitution, given that the alleged conduct concerned a foreign organisation training foreigners in a foreign country, with no direct connection to Australia.
  • Whether the indictment was defective because it failed to particularise a specific terrorist act that the organisation was engaged in, preparing, planning, or fostering.
  • Whether a pre-trial ruling on the admissibility of evidence (specifically, lay opinion evidence and records of interview) was amenable to appeal under s 5F of the Criminal Appeal Act 1912.

Decision

Constitutional validity: The Court upheld the constitutional validity of s 102.5(1). McClellan CJ at CL found that the external affairs power is not limited to conduct with a specific Australian nexus and that geographic externality of the subject matter is itself capable of supporting the exercise of the power. The Commonwealth advanced four bases for constitutional support, including international obligations, international concern about terrorism, and Australia's external relations, and the Court was satisfied the provision fell within the power.

Pleading and particulars: The Court rejected the argument that the indictment was fatally defective. The Crown's particulars identified a specific terrorist act, namely planned armed action against Indian forces in Kashmir intended to advance an ideological cause, which was sufficient to satisfy the statutory definition. The Court held that the Crown did not need to identify a single discrete future terrorist act; the particulars provided were adequate to inform the accused of the case against him and to permit a proper trial.

Admissibility of evidence: The Court refused leave to raise the third ground. Pre-trial rulings on the admissibility of evidence are not, as a general principle, amenable to appeal under s 5F of the Criminal Appeal Act 1912. The Court also noted that there was evidence beyond any disputed lay opinion, including records of interview and proposed witness testimony, that could potentially prove the Crown's case. Whether any individual piece of evidence was admitted remained a matter for the trial judge.

Orders Made

  • Application for leave to raise grounds 1 and 2 granted, but the appeal dismissed.
  • Leave to raise ground 3 refused.

Key Takeaways

  • Geographic externality of the alleged conduct is capable, of itself, of supporting the exercise of the Commonwealth's external affairs power under s 51(xxix) of the Constitution, though additional bases may also apply.
  • Under s 102.5(1) of the Criminal Code 1995, where an organisation is not specified by regulation as a terrorist organisation, the Crown must prove the organisation meets the statutory definition at the time of the alleged offending, which requires particularising a relevant terrorist act.
  • Particulars identifying the type, target, purpose, and political or ideological character of an anticipated terrorist act were held sufficient to support the indictment, without requiring identification of a single, precisely defined future act.
  • A pre-trial ruling on the admissibility of evidence does not ordinarily give rise to an appeal under s 5F of the Criminal Appeal Act 1912, consistent with the established line of NSW authority on that provision.
  • In dismissing the constitutional and pleading grounds, the Court of Criminal Appeal confirmed that proceedings under Division 102 of the Criminal Code 1995 for overseas training offences can validly proceed to trial where adequate particulars have been supplied.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), Division 102, s 102.5, s 102.1, s 100.1
- Criminal Appeal Act 1912 (NSW), s 5F
- Crimes Act 1914 (Cth)
- Evidence Act (NSW), s 78
- War Crimes Act 1945 (Cth)

Cases:
- De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640
- Horta v Commonwealth (1994) 181 CLR 163
- Koowarta v Bjelke-Peterson (1982) 153 CLR 168
- Lodhi v R [2006] NSWCCA 121
- Polyukhovich v The Commonwealth (1991) 172 CLR 501
- Victoria v The Commonwealth (1996) 187 CLR 416
- XYZ v Commonwealth [2006] HCA 25
- R v Bailey (1988) 36 A Crim R 30
- R v Edelsten (1989) 18 NSWLR 213
- R v Powch (1988) 14 NSWLR 136
- Steffan v R (1993) 30 NSWLR 633