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Supreme Court 2 November 2015

R v Alqudsi

[2015] NSWSC 1615

Public order & justice offences
CRIMINAL LAW CHALLENGE TO VALIDITY OF INDICTMENT TELECOMMUNICATIONS SERVICE WARRANTS NO SUCH LEGISLATIVE REQUIREMENT SEARCH WARRANTS WHETHER SEARCH WARRANTS UNLAWFUL

Citation: R v Alqudsi [2015] NSWSC 1615
Court: Supreme Court of New South Wales
Date: 2 November 2015
Judge(s): Adamson J

Background

The accused faced trial on indictment for offences under s 7 of the now-repealed Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), with the jury trial listed to commence in February 2016. Prior to trial, a series of pre-trial challenges were brought concerning the validity of the indictment, telecommunications interception warrants, and physical search warrants obtained by the Australian Federal Police (AFP).

The telecommunications warrants had been issued in August 2013 by a Federal Judge, authorising interception of communications associated with the accused and two other persons. The search warrants were issued in December 2013 in connection with AFP Operation Rathlin, a counter-terrorism operation, and authorised searches of residential premises and vehicles.

A complication arose with the search warrants when the AFP officer originally named as executing officer reassigned some warrants to a colleague by crossing out his own name. For two of those warrants, the colleague had not yet been named on them when he received them, and he crossed out the original officer's name and inserted his own. This process became the focus of a significant challenge.

  • Whether the Commonwealth Attorney-General's written consent to the institution of proceedings complied with s 10(1) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), given that the consent document referred to "committal proceedings" rather than "commitment for trial on indictment"
  • Whether the telecommunications interception warrants were invalid because the first page of one warrant was unsigned
  • Whether the description of offences in the telecommunications warrants was sufficient to satisfy the requirements of the Telecommunications (Interception and Access) Act 1979 (Cth)
  • Whether search warrants 2372 and 2378 were rendered unlawful by the manner in which the executing officer's name was altered, given the requirements of s 3E of the Crimes Act 1914 (Cth)
  • Whether any evidence obtained under an unlawful warrant ought to be admitted under s 138 of the Evidence Act 1995 (NSW)

Decision

Validity of the indictment. The accused argued that the Attorney-General's consent was defective because its heading referred to "committal proceedings" rather than the statutory phrase "commitment for trial on indictment." Adamson J rejected this argument. The Crimes (Foreign Incursions and Recruitment) Act uses "commitment," while the Criminal Procedure Act 1986 (NSW) uses the noun "committal" to describe the same process. Having regard to s 68 of the Judiciary Act 1903 (Cth), which makes applicable State procedures for commitment for trial on indictment of persons charged with federal offences, the court found the two terms are synonymous in this context. The challenge to the indictment was dismissed.

Telecommunications warrants. On the question of the unsigned first page, the court found there was no legislative requirement under the Telecommunications (Interception and Access) Act 1979 (Cth) that the first page of a warrant be signed; the warrant was therefore not invalidated on that basis. On the description of offences, the court held that the Act required only short particulars sufficient to identify the relevant offence in a conceptual sense. It did not require the particularisation of the factual ingredients of the alleged offence. The description used in the warrants ("Preparations for incursions into foreign states for the purposes of engaging in hostile activities, contrary to section 7 of the Crimes (Foreign Incursions and Recruitment) Act 1978") was sufficient. Both challenges to the telecommunications warrants failed.

Search warrants. The position on the search warrants was more problematic. Section 3E of the Crimes Act 1914 (Cth) specifies how a warrant is to be issued to an executing officer. The court found that warrant 2372 did not comply with s 3E because the modification of the executing officer's name was not carried out in accordance with the legislative requirements. The execution of warrant 2372 was accordingly illegal, and the search and seizure at the Revesby premises was unlawful. Warrant 2378 (the Silver Nissan Pulsar), by contrast, had been properly endorsed with the executing officer's name and was valid.

Admissibility of unlawfully obtained evidence. Because evidence obtained under warrant 2372 was unlawfully obtained, s 138 of the Evidence Act 1995 (NSW) was engaged. However, the Crown had not yet identified or tendered the evidence in question, so the court could not yet carry out the balancing exercise required by s 138, which mandates consideration of the probative value and importance of the evidence. The admissibility question was deferred to a further pre-trial hearing.

Orders Made

  • The Crown was directed to serve on the accused and provide to the Associate, by 4pm on 6 November 2015, a document setting out all evidence from the Crown case obtained through the execution of warrant 2372.
  • A mention date of 9 November 2015 at 9.15am was confirmed, at which a date for a voir dire (a separate hearing to determine admissibility) on the s 138 question would be allocated and any further pre-trial directions made.

Key Takeaways

  • In a federal prosecution conducted in New South Wales, the terms "committal" and "commitment" are synonymous for the purposes of s 10(1) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), given the interaction between that Act and the Criminal Procedure Act 1986 (NSW) via s 68 of the Judiciary Act 1903 (Cth).
  • Under the Telecommunications (Interception and Access) Act 1979 (Cth), a warrant describing an offence by its statutory name and section number provides sufficient particulars; the warrant need not set out the factual ingredients of the alleged offence, nor is there any requirement that the first page of a telecommunications warrant be signed.
  • A search warrant issued under s 3E of the Crimes Act 1914 (Cth) that does not comply with the statutory requirements for naming an executing officer is unlawful, rendering the resulting search and seizure illegal.
  • Informal modification of a warrant's executing officer details by AFP officers, without compliance with the prescribed legislative process, will not be saved by the fact that the breach may appear technical or may have caused no practical disadvantage.
  • Where evidence obtained under an unlawful search warrant is contested under s 138 of the Evidence Act 1995 (NSW), a court cannot determine admissibility until the Crown has identified the specific evidence in question, because probative value and importance are mandatory considerations in that balancing exercise.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 3C, 3E, 3F, 3G, 3H, 3J
- Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), ss 7, 10
- Criminal Procedure Act 1986 (NSW), ss 47, 53, 55, 56
- Evidence Act 1995 (NSW), s 138
- Judiciary Act 1903 (Cth), s 68
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 76
- Telecommunications (Interception and Access) Act 1979 (Cth), s 5D, Div 4, ss 46, 49, 75

Cases:
- Bagshaw v Carter [2006] NSWCA 113
- Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149
- George v Rockett (1990) 170 CLR 104
- King v The Queen [1969] 1 AC 304
- R v Pettit [2015] TASSC 14
- R v Solomon [2005] SASC 265
- Taikato v The Queen (1996) 186 CLR 454
- Telstra Corporation Ltd v Seven Cable Television Pty Ltd [2000] FCA 1160; 102 FCR 517