Citation: R v Alqudsi (No 2) [2015] NSWSC 1783
Court: Supreme Court of New South Wales
Date: 27 November 2015
Judge(s): Adamson J
Background
The accused faced trial on seven counts under section 7 of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) (since repealed). The Crown alleged that between June and October 2013 he assisted seven men to travel from Australia to Syria via Turkey to engage in armed hostilities against the Syrian government, acting as a conduit between the men and a contact in Syria.
On 3 December 2013, Australian Federal Police officers executed a search warrant at the accused's Revesby residence and seized a range of items. In an earlier ruling (R v Alqudsi [2015] NSWSC 1615), the court found the warrant execution was unlawful because the executing officer had not been validly appointed under section 3E(5) of the Crimes Act 1914 (Cth). Specifically, the named executing officer handed the warrant to a colleague and instructed him to execute it, but the colleague wrote in his own name rather than having the original officer endorse it.
This judgment addressed whether the evidence seized under that warrant should nonetheless be admitted at trial under section 138 of the Evidence Act 1995 (NSW), which gives the court a discretion to admit improperly or unlawfully obtained evidence where the desirability of admitting it outweighs the undesirability.
Legal Issues
- Whether the items seized during the warrant execution were unlawfully obtained within the meaning of section 138 of the Evidence Act 1995 (NSW).
- Whether the desirability of admitting the unlawfully obtained evidence substantially outweighed the undesirability of admitting it, having regard to the mandatory factors in section 138(3).
- The probative value and importance of each specific item seized from the accused's residence.
Decision
Unlawful Obtaining Confirmed
The court confirmed, consistently with its earlier ruling, that the property seized was unlawfully obtained within the meaning of section 138 (at [6]). The breach arose because section 3E(5) of the Crimes Act 1914 (Cth) required the original executing officer to endorse the warrant himself when transferring execution responsibility to a colleague (at [5]-[10]).
Nature and Gravity of the Contravention
The court found that the contravention was neither deliberate nor reckless (at [17]). Both officers had intended to follow the correct procedure and both were present during the execution. Their ignorance of the precise statutory requirement likely reflected inadequate training rather than wilful disregard of the law (at [16]-[17]). The court characterised the gravity of the breach as relatively insubstantial, noting that the AFP obtained no advantage from the non-compliance and that endorsement by the correct officer would have made the execution entirely lawful (at [18], [22], [38]).
Probative Value of Individual Items
The court assessed each seized item separately. A notebook containing to-do lists referencing travel to Turkey on relevant dates and naming three persons from the indictment was found to have high probative value (at [27]-[28]). A paper containing Turkish and Syrian telephone numbers alongside one of the named individuals was found to have significant probative value in supporting the Crown's case that the accused had relevant contacts in both countries (at [29]). A letter about passport cancellation for a person named in count one was found relevant because it suggested the accused was concerned about that person's passport status (at [31]). Photographs potentially linking two indicted individuals to the accused and to armed hostilities were found potentially significant (at [32]). Documents encouraging armed conflict were found relevant to motive and to the accused's understanding of terms used in intercepted telephone conversations (at [33]). A second notebook bearing the accused's name and containing to-do lists was found relevant because it connected the accused to the other items seized (at [34]).
Balancing Exercise Under Section 138
The court was satisfied that the desirability of admitting each item substantially outweighed the undesirability of doing so (at [38]). The serious nature of the offences, carrying a maximum penalty of ten years' imprisonment, and the probative value and relative importance of the evidence were powerful factors in favour of admission. The technical and innocent nature of the breach, which made no practical difference to whether the evidence could have been obtained, weighed heavily on the other side of the balance (at [38]). The court also noted that its ruling was confined to the section 138 question; no other objections to the evidence were determined (at [39]).
Orders Made
- Evidence admissible under section 138 of the Evidence Act 1995 (NSW).
Key Takeaways
- Under section 138 of the Evidence Act 1995 (NSW), a court must weigh the desirability of admitting unlawfully obtained evidence against the undesirability of admitting it, with the mandatory factors in section 138(3) always required to be addressed, even though the discretion is not limited to those factors (at [12]).
- A technical breach of the statutory warrant execution procedure, which was neither deliberate nor reckless and gave investigators no practical advantage over a lawful execution, will be treated as a contravention of relatively low gravity in the section 138 balancing exercise (at [17]-[18], [38]).
- The Supreme Court confirmed that the seriousness of the offences charged, here carrying a maximum of ten years' imprisonment, is a relevant and significant factor favouring admission under section 138, consistent with the High Court's approach in Ibbs v The Queen (at [15], [38]).
- In a circumstantial Crown case, individual items of evidence need not independently establish guilt to have significant probative value. The court applied the "strands of a cable" principle from Shepherd v The Queen, finding that each item's contribution to the overall case supported admission even where alternative explanations existed (at [26]).
- Where the Crown's case rests substantially on lawfully obtained telephone intercepts, the probative value of seized items that clarify or contextualise those intercepts will be a weighty consideration in the section 138 balancing exercise (at [37]-[38]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1914 (Cth), s 3E Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), ss 6, 7 Evidence Act 1995 (NSW), s 138
Cases
- Ibbs v The Queen [1987] HCA 46; 163 CLR 447 Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494 R v Alqudsi [2015] NSWSC 1615 R v Camilleri [2007] NSWCC 36; 68 NSWLR 720 Shepherd v The Queen (1990) 170 CLR 573