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Supreme Court 24 June 2022

R (Cth) v Alqudsi (No 3)

[2022] NSWSC 842

Public order & justice offences
CRIMINAL PROCEDURE EVIDENCE ADMISSIBLE OR NOT ADMISSIBLE STAY EXCEPTIONAL REMEDY RULINGS ISSUED

Citation: R (Cth) v Alqudsi (No 3) [2022] NSWSC 842
Court: Supreme Court of New South Wales
Date: 24 June 2022
Judge(s): Rothman J

Background

The accused faced charges under s 102.2 of the Criminal Code Act 1995 (Cth) for directing a terrorist organisation, namely the Islamic State (specifically its consultative council, the Shura). The matter came before Rothman J on a series of pre-trial interlocutory applications in the lead-up to trial.

The applications addressed three main areas: a further application for a permanent stay of proceedings; disputed aspects of proposed agreed facts; and the admissibility of individual questions and answers from the accused's record of interview.

The judgment was delivered in short form given the imminence of the trial.

  • Whether a permanent stay of proceedings was warranted on the basis that the jury would learn the accused was incarcerated and had previously been charged with another offence
  • Whether certain documents and paragraphs in the proposed agreed facts and Crown Case Statement were relevant to the charge
  • Whether the record of interview, transcripts, and recordings should be distributed to the jury before evidence was formally adduced
  • Whether specific questions and answers from the record of interview were admissible, including under ss 135 and 137 of the Evidence Act 1995 (NSW)

Decision

Stay application

Rothman J refused the application for a permanent stay. The fact that the jury might learn of the accused's incarceration was an unavoidable aspect of the proceedings, not a ground for the extraordinary remedy of a stay. The jury would be directed that, given the nature of the charge, imprisonment pending trial was unremarkable regardless of guilt. Where material in the record of interview was otherwise admissible, the proper mechanism for addressing prejudice was the exclusionary discretion under s 137, or the general discretion under s 135, of the Evidence Act, not a stay.

Agreed facts and relevance of documents

The Court urged the parties to use ss 48 and 50 of the Evidence Act to resolve disputes over undisputed details such as dates. Paragraphs 39, 40, 41, 42, and 44 of the relevant exhibit were each found to be relevant. They went to the operation and conduct of the Shura after 2013 and, when considered alongside other evidence, could indirectly affect the probability of facts in issue. Any potential prejudice from this material was capable of being addressed by appropriate jury directions.

Distribution of documents to the jury

The record of interview, telephone intercept transcripts, and recordings were not to be distributed to the jury at the opening or before the evidence was formally adduced in proper form, absent agreement between the parties. Distributing the material at that stage would give it undue weight and allow the jury to read it without the benefit of judicial directions or the context in which it was obtained.

Record of interview: specific rulings

Rothman J worked through objections to individual questions and answers. Some objections were withdrawn by the accused; some questions were not pressed by the Crown. Where questions contained expressions of opinion by the questioner or carried unfair prejudice not justified by probative value, those portions were excised. Question 926 was ruled inadmissible in its entirety. Questions 927, 928, and 929 (with the first and second sentences of 927 removed) were allowed. Questions 690, 701, and the Crown's position on 895 were not pressed. The record of interview was to be edited in accordance with the individual rulings.

Orders Made

• Question-and-answer 798 is admissible
• All but the first sentence of the question and answer in 799 may be admitted
• Question-and-answer 840 is inadmissible
• Questions and answers 847-854 (inclusive) are not pressed by the Crown
• Question-and-answer 894 is admissible
• Question-and-answer 895 is not pressed by the Crown
• Question-and-answer 926 is inadmissible in its entirety
• Question 927 is allowed starting with "There's content"
• Questions 928 and 929 and answers thereto are allowed
• Question and answer 936 (excluding the words "it doesn't cut it for me to say") are allowed
• Answer to 937 is allowed
• Question in 937 is not allowed
• Publication restriction lifted (13 April 2023)

Key Takeaways

  • A permanent stay of proceedings is an exceptional remedy and is not warranted merely because a jury will incidentally learn that an accused was incarcerated pending trial or had been charged with another offence. The proper mechanism for managing prejudice from admissible but potentially harmful evidence is the exclusionary discretion under ss 135 and 137 of the Evidence Act 1995 (NSW).

  • Evidence concerning the operation and conduct of the Shura (Islamic State's consultative council) was found relevant to the charge of directing a terrorist organisation, because it could indirectly affect the probability of facts in issue, including the accused's knowledge that the organisation was a terrorist organisation.

  • Under the Criminal Code Act 1995 (Cth), proving a charge of directing a terrorist organisation (s 102.2) requires proof of: a direction, made to a terrorist organisation, with knowledge that it is a terrorist organisation. Whether conduct by the organisation's members amounts to a "terrorist act" under s 100.1 informed the relevance of several disputed documents.

  • Records of interview, intercept transcripts, and recordings should not be distributed to a jury before evidence is formally adduced, absent agreement of the parties. Premature distribution risks distorting the weight of the material and depriving the jury of the context and directions needed to evaluate it properly.

  • Where individual questions in a record of interview contain an interrogator's expressions of opinion or carry unfair prejudice disproportionate to their probative value, the court has power to excise those portions so that the balance of the record remains admissible.

Legislation and Cases Referenced

Legislation

  • Criminal Code Act 1995 (Cth), ss 100.1, 102.1, 102.2
  • Evidence Act 1995 (NSW), ss 48, 50, 135, 137

Cases

No cases were cited by name in the judgment or the provided metadata.