Citation: R (Cth) v Alqudsi (No 7) [2023] NSWSC 354
Court: Supreme Court of New South Wales
Date: 11 April 2023
Judge(s): Rothman J
Background
The accused stood trial on a charge of directing a terrorist organisation, alleged to have occurred between August and December 2014. The organisation in question, referred to throughout the proceedings as "the Shura," was alleged to have been engaged in planning and fostering terrorist acts. The Crown's case involved evidence of several specific potential targets, including a naval base, courthouse locations, the Mardi Gras, and the Israeli Embassy, as well as evidence relating to the random murder of tourists and the provision of personnel for an unspecified attack.
During the trial, the court raised with counsel whether the structure of the Crown's case required what is known as an "extended unanimity direction." Such a direction requires jurors to be unanimous not only on the verdict but also on at least one specific factual pathway to guilt. Both parties filed written submissions, with the accused arguing the direction was necessary and the Crown submitting it was not.
Rothman J reserved the question until all evidence had been heard, accepting that the appropriate direction could only be determined once the full factual picture was clear.
Legal Issues
- Whether the multiple potential terrorist attack targets relied upon by the Crown constituted distinct factual pathways to guilt, requiring an extended unanimity direction
- Whether the elements of the offence of directing a terrorist organisation demanded jury unanimity on any one particular planned or fostered terrorist act
- Whether a modified Shepherd direction was warranted given the central importance of one witness's evidence
Decision
Rothman J outlined the governing principles on extended unanimity directions. Each factual ingredient necessary to constitute an offence must be proved beyond reasonable doubt, and the jury's verdict must be unanimous. Where multiple discrete facts are relied upon to prove a single essential ingredient of an offence, and any one of those facts would suffice, the jury must be unanimous on which of those facts they accept. Critically, the court drew a firm distinction between alternative factual bases for liability (which do require an extended direction) and alternative legal formulations of liability based on the same or substantially the same facts (which do not).
Applying those principles to the charge of directing a terrorist organisation, Rothman J concluded that the specific targets alleged did not constitute separate essential ingredients of the offence. The essential elements were: that the accused intentionally directed an organisation; that the organisation was a terrorist organisation (one engaged in preparing, planning, assisting, or fostering a terrorist act); and that the accused knew it was a terrorist organisation. Crucially, the identity of any particular target was not an essential ingredient. The Crown was not required to prove that any specific attack had been planned against a named target. The targets were merely illustrative particulars, not distinct factual pathways to guilt. Accordingly, no extended unanimity direction was required.
However, Rothman J determined that a modified Shepherd direction was necessary in relation to the evidence of the witness referred to as "OA." The court found that if the jury were not satisfied beyond reasonable doubt of the substance of OA's evidence, the remainder of the evidence would not independently establish either the accused's role or the Shura's role. Because OA's evidence was foundational in this way, the jury would need to be directed that it could not convict unless satisfied of that evidence beyond reasonable doubt. In those circumstances, giving an extended unanimity direction would have introduced unnecessary complication without any corresponding benefit.
Orders Made
No orders were made in this decision.
Key Takeaways
- An extended unanimity direction is required where discrete facts are relied upon to prove an essential ingredient of an offence, and any one of those facts would be sufficient to establish that ingredient. The direction is not required merely because the Crown relies on multiple examples or particulars in support of a single element.
- Specific targets or planned acts alleged in a terrorism prosecution do not automatically become essential ingredients of the offence of directing a terrorist organisation. Where the existence of terrorist planning is the relevant ingredient, the particular target is a particular, not an element.
- The distinction between alternative factual bases for liability and alternative legal formulations based on substantially the same facts is critical to determining whether an extended unanimity direction is needed. Only the former triggers the requirement.
- A modified Shepherd direction may be appropriate where a single witness's evidence is so foundational to the Crown's case that the jury could not convict without being satisfied of it beyond reasonable doubt, even where no extended unanimity direction is given.
- Rothman J confirmed, following R v Walsh and Fermanis v The State of Western Australia, that the question of whether an extended unanimity direction is warranted cannot properly be resolved until all evidence has been heard, because the answer depends on the precise factual pathway disclosed by the evidence as a whole.
Legislation and Cases Referenced
Cases:
- R v Walsh (2002) 131 A Crim R 299; [2002] VSCA 98
- Fermanis v The State of Western Australia (2007) 33 WAR 434; [2007] WASCA 84
- Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
Legislation:
No specific legislative provisions were identified in the provided text, though the offence of directing a terrorist organisation arises under Commonwealth criminal law, and the judgment refers to the statutory definitions of "terrorist organisation" and "terrorist act."