Citation: R v Alqudsi [2015] NSWSC 2132
Court: Supreme Court of New South Wales
Date: 28 August 2015
Judge(s): Adamson J
Background
The accused faced trial on charges under s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), with the trial listed to commence on 21 September 2015. On the day before this decision, Adamson J had delivered a judgment upholding the constitutional validity of that provision.
Defence counsel, senior and junior, had only recently been briefed and had not yet had sufficient opportunity to review the material in the matter. The Crown also advised that the interpreter previously engaged to translate Arabic-language intercepts was no longer available, and that fresh transcripts of roughly 2,000 pages of telephone intercepts and messages were still being prepared.
Defence counsel applied to adjourn the trial, with the Crown consenting to the application.
Legal Issues
- Whether the trial date of 21 September 2015 should be vacated, having regard to the three grounds advanced by defence counsel
- The weight to be given to the recency of legal representation, the outstanding translation of intercepts, and the pending constitutional appeal as reasons for adjournment
Decision
Issue 1 (Recency of legal representation): Adamson J did not regard the lateness of counsel's briefing as a determinative or even significant reason for granting the adjournment (at [5]).
Issue 2 (Outstanding transcripts): The judge was persuaded that it was important in the interests of justice for the accused to have adequate time to assess which parts of the Arabic-language transcripts he would contest and which he would accept as accurate (at [5]). The Crown indicated the completed transcript bundle would be served the following week (at [3]).
Issue 3 (Constitutional appeal): Defence counsel indicated a notice of appeal against the previous day's constitutional ruling would be filed the following week. Adamson J expressly declined to determine whether that appeal process ought to disrupt the criminal trial, treating that as a matter for others to decide (at [6]).
Adjournment and listing: Having concluded that some delay was inevitable, Adamson J considered it preferable to return the matter to the arraignments list on 11 September 2015 so that Johnson J, as arraignments judge, could best allocate Court resources (at [7]).
Orders Made
- The trial date of 21 September 2015 was vacated and the matter was stood over to the arraignments list before Johnson J on 11 September 2015.
- The accused was directed to confirm by email to the Associate of the arraignments list judge, on or before 4 September 2015, whether the issue relating to the certificate required for prosecution (as raised in item d(ii) of the defence response to the Crown Case Statement) was still pressed.
Key Takeaways
- The Supreme Court granted an adjournment primarily on the basis that the accused required sufficient time to assess the accuracy of Arabic-language transcript material, treating this as a matter of justice rather than mere convenience (at [5]).
- Recency of legal representation, standing alone, was not regarded as a determinative or even significant factor in the adjournment application (at [5]).
- A pending constitutional appeal arising from related proceedings was noted but expressly left to others to weigh against the continuation of the criminal trial (at [6]).
- Where a trial adjournment becomes unavoidable, returning the matter to the arraignments judge was considered the appropriate mechanism for efficient allocation of Court resources (at [7]).
- The decision turned on its specific procedural circumstances and does not purport to establish any broader principle governing adjournment applications in criminal proceedings.
Legislation and Cases Referenced
Legislation
- Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 7(1)(e)
Cases
- Not stated