R v Alqudsi [2015] NSWSC 1615

R v Alqudsi [2015] NSWSC 1615

The Attorney-General's consent was valid; no illegality or impropriety was established regarding search or interception warrants for premises 2371 and 2378. However, the search warrant for 19 Creswell St, Revesby (2372) was invalid and its execution was illegal as the process for substituting the executing officer was not followed, contrary to s 3E(5)(d) of the Crimes Act 1914 (Cth), rendering evidence obtained by its execution unlawfully obtained.

Parties
Crown: Regina; Accused: Hamdi Alqudsi
Jurisdiction
Australia
Judgment Date
02 November 2015
Procedural Posture
Criminal / Pre Trial Interlocutory (challenge to Indictment and Warrants)
Outcome
Challenge to Attorney-General's consent and most warrants dismissed; warrant 2372 ruled unlawful; evidence from warrant 2372 subject to voir dire under s 138 Evidence Act 1995 (NSW).
Legal Topics
Challenge to Validity of Indictment, Search Warrants, Telecommunications Interception Warrants, Unlawfully Obtained Evidence, Attorney General Consent
Criminal Law Challenge to Validity of Indictment Search Warrants Telecommunications Interception Warrants Unlawfully Obtained Evidence Attorney General Consent

Case Brief

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Parties

Regina

Crown

Hamdi Alqudsi

Accused

Procedural Posture

Criminal / Pre Trial Interlocutory (challenge to Indictment and Warrants)

Legal Issues

  1. 1 Whether consent of the Commonwealth Attorney-General to institution of proceedings was valid under s 10 of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth)
  2. 2 Whether defects in search warrants or their execution rendered them unlawful
  3. 3 Whether evidence obtained by unlawful warrants should be admitted under s 138 of the Evidence Act 1995 (NSW)

Ratio Decidendi

The Attorney-General's consent was valid; no illegality or impropriety was established regarding search or interception warrants for premises 2371 and 2378. However, the search warrant for 19 Creswell St, Revesby (2372) was invalid and its execution was illegal as the process for substituting the executing officer was not followed, contrary to s 3E(5)(d) of the Crimes Act 1914 (Cth), rendering evidence obtained by its execution unlawfully obtained.

Court Disposition

Challenge to Attorney-General's consent and most warrants dismissed; warrant 2372 ruled unlawful; evidence from warrant 2372 subject to voir dire under s 138 Evidence Act 1995 (NSW).

Orders

  • Direct the Crown to serve on the accused and provide to the Associate by 4pm 6 November 2015 a document setting out the evidence sought to be relied upon in the Crown case obtained by execution of warrant 2372.
  • Confirm 9 November 2015 at 9.15am as the next mention date, at which time a date for hearing of the voir dire regarding admissibility of the evidence under s 138 of the Evidence Act 1995 (NSW) will be allocated and further pre-trial directions will be made.