Citation: Regina v Lodhi [2006] NSWSC 666
Court: Supreme Court of New South Wales
Date: 12 May 2006
Judge(s): Whealy J
Background
The accused stood trial on charges relating to acts in preparation for a terrorist act under the Criminal Code Act. His defence sought to call five witnesses located in Pakistan, whose evidence was intended to support his case on character, his commercial activities, and his alleged non-involvement with the Lashkar-e-Taiba organisation.
An earlier application had already been made under the Crimes Act (Commonwealth) for an order permitting those witnesses to give evidence by audio-visual link. Whealy J had indicated his intention to grant that order. A complication then arose: Pakistani authorities made clear they would require a formal mutual assistance request from the Commonwealth of Australia before permitting their citizens to participate in a foreign trial.
That requirement prompted the accused's legal team to seek a certificate from the court under s 39A of the Mutual Assistance in Criminal Matters Act 1987. Such a certificate, if issued, would state that it is in the interests of justice for the Attorney-General to make a formal request to Pakistan for the evidence to be taken there and transmitted to Australia by video-link.
Legal Issues
- Whether the court should issue a certificate under s 39A of the Mutual Assistance in Criminal Matters Act 1987 certifying that it is in the interests of justice for the Attorney-General to request Pakistan's assistance in taking evidence by video-link
- Whether each of the mandatory statutory considerations under s 39A was satisfied on the material before the court
- Whether the accused would be unfairly prejudiced if the evidence were not made available at trial
Decision
Whealy J considered each of the mandatory matters prescribed by s 39A in turn. On the question of whether Pakistan was likely to grant the request, his Honour found no reason to conclude otherwise, based on the material presented, while acknowledging that a categorical finding was not possible. On the availability of the evidence by other means, his Honour found the evidence would not otherwise be obtainable, given the age and health of the accused's father, the business commitments of other witnesses, the practical difficulties and expense of bringing them to Australia, and the absence of any comparable evidence from Australian sources.
His Honour was satisfied that the proposed evidence was both probative and admissible in the proceedings. The evidence was described as serving three purposes: supporting the accused's account of legitimate commercial dealings in chemical and electrical materials, establishing good character, and rebutting any suggested connection to Lashkar-e-Taiba. These matters went directly to contested issues in the Crown's case.
Finally, Whealy J was positively satisfied that the accused would be unfairly prejudiced if the material were not available. The Crown raised no objection and the Attorney-General, having been given notice, did not appear. His Honour also took into account his preliminary views under s 15YV of the Crimes Act (Commonwealth) regarding the audio-visual link order, treating those views as a relevant additional matter.
The certificate was issued and signed on 12 May 2006. Whealy J appended an express request that both the Australian Government and the Pakistani authorities treat the matter with urgency, noting that the Crown case was near its close and any significant delay in the availability of the witnesses would risk disrupting the trial.
Orders Made
- Whealy J certified that it is in the interests of justice for the Attorney-General to make a request to Pakistan under Part 2 of the Mutual Assistance in Criminal Matters Act 1987 for evidence to be taken in Pakistan and broadcast to Australia via video-link from five named witnesses: Sameer Khan Lodhi, Khalid Khan Lodhi, Arif Amanullah, Majed Khan, and Athar Saeed.
Key Takeaways
- Under s 39A of the Mutual Assistance in Criminal Matters Act 1987, a court issuing a certificate must take into account a range of prescribed matters, including the likelihood that the foreign country will grant the request, the availability of the evidence by other means, its probative value, its admissibility, and whether the defendant would be unfairly prejudiced without it.
- The Supreme Court found that practical factors such as a witness's age and health, cost, disruption to overseas witnesses, and the absence of any Australian alternative can collectively satisfy the requirement that evidence would not otherwise be available.
- A court considering the s 39A certificate may also take into account its preliminary views on any related audio-visual link application under the Crimes Act (Commonwealth), treating those views as an additional relevant matter.
- Where a foreign country requires a formal mutual assistance request before permitting its citizens to give evidence in overseas proceedings, the s 39A certificate mechanism provides the procedural pathway to engage that process.
- In dismissing any concern about the Crown's position, the court noted that neither the prosecution nor the Attorney-General opposed the application, which was a relevant contextual consideration in the overall assessment of the interests of justice.
Legislation and Cases Referenced
Legislation:
- Mutual Assistance in Criminal Matters Act 1987 (Cth), particularly s 39A and Part 2
- Crimes Act (Commonwealth), particularly s 15YV and s 15Y
- Criminal Code Act (Cth) (referenced in relation to the substantive charges)
Cases: No cases were cited in the judgment.