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Supreme Court 17 May 2022

R (Cth) v Alqudsi (No 2)

[2022] NSWSC 609

Public order & justice offences
CRIMINAL PROCEDURE AUTREFOIS CONVICT DOUBLE JEOPARDY OPPRESSION PUBLIC INTEREST IMMUNITY PUBLIC INTEREST IMMUNITY GRANTED

Citation: R (Cth) v Alqudsi (No 2) [2022] NSWSC 609
Court: Supreme Court of New South Wales
Date: 17 May 2022
Judge(s): Rothman J

Background

The accused faced a charge under s 102.2(1) of the Criminal Code Act 1995 (Cth) of intentionally directing the activities of a terrorist organisation, referred to as the "Shura" (an Arabic word for a consultative council). The prosecution alleged the Shura was formed in 2013 to facilitate the travel of Australians to Syria to join armed conflict against the Syrian Government, and that after Australian Federal Police disrupted those efforts, the accused and the organisation turned their attention to planned domestic terrorism targets, including a naval base, several courts, the Mardi Gras, and the Israeli Embassy in Sydney.

The accused had previously been convicted at a separate trial (the "first trial") of offences under the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) relating to facilitating individuals' travel to Syria for hostile activities. In these current proceedings, the Crown sought to adduce evidence from that earlier conduct to establish motive for the alleged domestic terrorism offending.

The proceedings reached the Supreme Court on a series of preliminary issues raised before trial, including whether the current prosecution was barred by the accused's prior conviction, whether it should be permanently stayed as oppressive or unfair, and whether certain AFP surveillance material was protected by public interest immunity.

  • Whether the doctrine of autrefois convict (the plea in bar that a person cannot be tried again for an offence of which they have already been convicted) applied to bar the current prosecution
  • Whether the proceedings should be permanently stayed on the grounds of double jeopardy or oppression arising from the use of evidence connected to the first trial
  • Whether the proceedings should be stayed due to alleged non-disclosure of AFP surveillance material
  • Whether public interest immunity applied to that surveillance material, and if so, how any potentially material evidence within it could be accessed by the accused

Decision

Autrefois convict: Rothman J rejected the autrefois convict plea. The current charge, of directing a terrorist organisation in relation to plans for domestic attacks, contains elements that are fundamentally different in both law and practice from the first trial's charges, which concerned facilitating individuals' travel to Syria to engage in armed hostilities abroad. The only common thread was the involvement of the Shura, but even its membership had changed over time. Where subsequent offences contain elements not included in the first offence, the plea in bar is unavailable. The argument was, in any event, advanced only faintly by the defence, which focused instead on double jeopardy and oppression.

Double jeopardy and oppression: His Honour confirmed that the rationale for double jeopardy protections is that the State, with all its resources, should not be permitted to make repeated attempts to convict an individual for the same alleged conduct. However, the principle does not prevent prosecution for a genuinely distinct offence merely because some overlapping factual material may be tendered. The proposed use of first-trial evidence was for the limited purpose of establishing motive for the current, separate charge. The application for a permanent stay on grounds of unfairness or oppression was refused. The court emphasised that a permanent stay is an extraordinary remedy reserved for the most exceptional circumstances.

Public interest immunity: The AFP claimed public interest immunity over surveillance material gathered during its investigation. Rothman J granted the immunity claim. The court confirmed the established framework: where the public interest in maintaining confidentiality of law enforcement material outweighs the public interest in disclosure for the purposes of litigation, immunity will be granted. The court noted, however, that a procedure remains available for the accused to seek disclosure of any specific material if it can be demonstrated to be relevant and material to the defence.

Allegedly improperly obtained evidence: The court declined at this interlocutory stage to make any finding that the surveillance material had been unlawfully, improperly, or irregularly obtained. Any objection to the admissibility of specific material under ss 137 or 138 of the Evidence Act 1995 (NSW) remained available to be raised during the trial itself.

Orders Made

• The Court directs the Crown to produce a Minute of an Order and/or Direction giving effect to the foregoing reasons for judgment.

Key Takeaways

  • Autrefois convict does not bar a subsequent prosecution where the new charge contains elements not present in the earlier offence, even if some overlapping factual material exists across both proceedings.
  • A permanent stay of criminal proceedings on grounds of oppression or double jeopardy is an extraordinary remedy; its availability is not triggered simply because evidence from a prior conviction is tendered in a later, genuinely distinct prosecution.
  • Where the Crown seeks to admit evidence of prior conduct not charged in the current indictment, admissibility for a limited purpose (such as motive) does not of itself render the proceedings unfair or oppressive.
  • Public interest immunity can be granted over AFP surveillance material where the balance of competing public interests favours non-disclosure, while a procedure remains available to the accused to seek access to any material later shown to be relevant and material to the defence.
  • Challenges to the admissibility of potentially improperly obtained evidence under ss 137 or 138 of the Evidence Act 1995 (NSW) are matters for trial, not interlocutory determination, where no finding of unlawful or irregular conduct has yet been established.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 102.2(1)
- Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), ss 6, 7(1)(e)
- Evidence Act 1995 (NSW), ss 130, 137, 138, 165

Cases:
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- R v Carroll (2002) 213 CLR 635; [2002] HCA 55
- Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42
- Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46
- Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2018) 266 CLR 325; [2018] HCA 53
- Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20
- Alister v the Queen (1984) 154 CLR 404; [1984] HCA 85
- Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43
- Commonwealth v Northern Land Council (1993) 176 CLR 604; [1993] HCA 24
- Carmody v MacKellar (1997) 76 FCR 115; [1997] FCA 839
- Green v United States [1957] 355 US 184