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Supreme Court 13 April 2017

R v Azari (No 1)

[2017] NSWSC 404

HomicidePublic order & justice offences
CRIMINAL LAW APPLICATION GRANTED

Citation: R v Azari (No 1) [2017] NSWSC 404
Court: Supreme Court of New South Wales
Date: 13 April 2017
Judge(s): N Adams J

Background

The accused faced two counts on indictment, both arising from a single intercepted telephone call on 15 September 2014. The Crown alleged that, during that conversation, the accused discussed with a caller (said to be an Australian citizen fighting with Islamic State in Syria or Iraq) a plan to kill random members of the public in Australia. The conversation covered target selection, video recording of killings, recruiting participants, timing, and covert communications.

Count 1 was a Commonwealth offence: doing an act in preparation for, or planning, a terrorist act, contrary to s 101.6(1) of the Criminal Code (Cth). Count 2 was a State offence: conspiracy to murder persons unknown, contrary to s 26 of the Crimes Act 1900 (NSW). The Commonwealth DPP prosecuted both counts with the concurrence of the NSW DPP, and the Crown put both counts to the jury simultaneously rather than in the alternative.

The accused applied for a temporary stay of the indictment on the basis that proceeding on both counts simultaneously exposed him to double jeopardy. He relied on the Supreme Court's inherent jurisdiction to prevent an abuse of process.

  • Whether the indictment, charging both counts simultaneously and not in the alternative, exposed the accused to double jeopardy.
  • Whether Count 1 (terrorist act preparation under Commonwealth law) was capable of encompassing the criminality inherent in Count 2 (conspiracy to murder under State law), on the particular facts of the Crown case.
  • Whether the Court should exercise its inherent jurisdiction to stay the indictment until the Crown elected to proceed on one count only.

Decision

Adams J found that, on the particular facts and the way the Crown framed its case, Count 1 encompassed all of the criminality inherent in Count 2. The offence in s 101.6(1) is drafted broadly: it does not require proof of a specific agreement to kill, but the Crown's own case relied on the same telephone conversation to establish both counts. The "act" alleged for Count 1 was participation in the conversation itself, which on the Crown's case included the formation of the conspiratorial agreement alleged in Count 2.

Although the elements of the two offences are technically distinct, the Court found that distinction to be an artificial one on the particular facts. Count 1, which carries a maximum of life imprisonment, covered conduct broad enough to encompass an agreement to kill. Proceeding on both counts would therefore leave no actual additional criminality to be punished by Count 2.

The Court acknowledged that a stay is an exceptional remedy but confirmed that it should be granted without hesitation where a proper foundation is established. Because the indictment in its current form exposed the accused to double jeopardy, the inherent jurisdiction to prevent abuse of process was enlivened. The Court noted that, given its findings, the Crown would likely elect to proceed on Count 1 alone, though that election remained entirely a matter for the Crown.

Orders Made

  • The indictment containing Counts 1 and 2 was stayed until such time as the Commonwealth Director of Public Prosecutions elected upon which of those two counts she wished to proceed.

Key Takeaways

  • The Supreme Court held that charging an accused on both a Commonwealth terrorism preparation count and a State conspiracy to murder count, arising from the identical act and without putting them in the alternative, can constitute double jeopardy where the Crown's own case leaves no additional criminality to be punished by the lesser charge.
  • Under s 101.6(1) of the Criminal Code (Cth), the concept of "an act" in preparation for or planning a terrorist act is broad enough, on particular facts, to encompass a conspiratorial agreement to kill contained within the same conduct alleged by the Crown.
  • Each double jeopardy analysis is highly fact-specific: the Court declined to draw direct analogy from prior cases involving different charges and statutory provisions, emphasising that the outcome turned on how the Crown framed its particular case.
  • A temporary stay of proceedings is an exceptional remedy, but the inherent jurisdiction to prevent abuse of process will be exercised where the foundation for double jeopardy is properly established.
  • Where a stay is granted on this basis, the election of which count to pursue remains entirely within the Crown's discretion.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 101.6(1) (terrorist act preparation)
- Crimes Act 1900 (NSW), s 26 (conspiracy to murder)
- Crimes Act 1914 (Cth), s 16AB
- Criminal Code (Terrorist Organisation — Islamic State) Regulation 2014 (Cth) and predecessor regulations

Cases:
- Elias v The Queen; Issa v The Queen (2013) 248 CLR 483
- Pearce v The Queen (1998) 194 CLR 610
- Magaming v The Queen (2013) 302 ALR 461
- Nahlous v The Queen (2010) 77 NSWLR 463
- R v B (2008) 76 NSWLR 533
- Lodhi v R [2006] NSWCCA 121; [2007] NSWCCA 360
- R v Lodhi [2006] NSWSC 584; [2006] NSWSC 667
- Glover v R [2016] NSWCCA 316
- R v Dodd (1991) 56 A Crim R 451
- De Simoni v The Queen (1981) 147 CLR 383