R v Azari (No 1) [2017] NSWSC 404

R v Azari (No 1) [2017] NSWSC 404

Although the formal elements of Count 1 and Count 2 differed, the Crown's primary case on Count 1 was that the telephone conversation itself contained an agreement to murder, and all evidence relied on for Count 2 would also be relied on for Count 1. Because s 101.6 of the Criminal Code was broad enough to encompass an agreement to kill and carried a maximum penalty of life imprisonment, Count 1 as pleaded and proposed to be run encompassed the criminality inherent in Count 2. The indictment therefore exposed the accused to double jeopardy and was stayed until the Commonwealth Director of Public Prosecutions elected which count to proceed upon.

Jurisdiction
Australia
Judgment Date
13 April 2017
Procedural Posture
Criminal Law Pre Trial Application for Temporary Stay of Indictment on Basis of Double Jeopardy and Abuse of Process / Procedural Ruling Before Trial After Pleas of Not Guilty to Counts 1 and 2
Outcome
Application granted; indictment stayed temporarily pending election by the Commonwealth Director of Public Prosecutions.
Legal Topics
['double Jeopardy' 'abuse of Process' 'temporary Stay of Indictment' 'election Between Counts' 'acts in Preparation for, Or Planning, Terrorist Acts' 'conspiracy to Murder']
['criminal Law' 'criminal Procedure' 'terrorism Offences'] ['double Jeopardy' 'abuse of Process' 'temporary Stay of Indictment' 'election Between Counts' 'acts in Preparation For, or Planning, Terrorist Acts' 'conspiracy to Murder']

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Procedural Posture

Criminal Law Pre Trial Application for Temporary Stay of Indictment on Basis of Double Jeopardy and Abuse of Process / Procedural Ruling Before Trial After Pleas of Not Guilty to Counts 1 and 2

Legal Issues

  1. 1 ['Whether charging the accused with both doing an act in preparation for, or planning, a terrorist act contrary to s 101.6(1) of the Criminal Code and conspiracy to murder contrary to s 26 of the Crimes Act 1900 (NSW) exposed him to double jeopardy.' 'Whether Count 1, as the Crown proposed to run it, encompassed the criminality inherent in Count 2.' 'Whether the Court should exercise its inherent jurisdiction to stay the indictment until the Commonwealth Director of Public Prosecutions elected which count to proceed on.']

Ratio Decidendi

Although the formal elements of Count 1 and Count 2 differed, the Crown's primary case on Count 1 was that the telephone conversation itself contained an agreement to murder, and all evidence relied on for Count 2 would also be relied on for Count 1. Because s 101.6 of the Criminal Code was broad enough to encompass an agreement to kill and carried a maximum penalty of life imprisonment, Count 1 as pleaded and proposed to be run encompassed the criminality inherent in Count 2. The indictment therefore exposed the accused to double jeopardy and was stayed until the Commonwealth Director of Public Prosecutions elected which count to proceed upon.

Court Disposition

Application granted; indictment stayed temporarily pending election by the Commonwealth Director of Public Prosecutions.

Orders

  • ['The indictment containing Counts 1 and 2 (as defined in the judgment) be stayed until such time as the Commonwealth Director of Public Prosecutions elects upon which of those two counts she wishes to proceed.']