Regina v Lodhi [2006] NSWSC 638

Regina v Lodhi [2006] NSWSC 638

Ul-Haque was not required to give evidence because the Court was not satisfied that the proposed evidence did not tend to prove offences under Pakistani law, particularly under the Pakistan Anti-Terrorism Act 1997, and was not satisfied that the interests of justice required compulsion. The evidence was circumstantial and not critical to the Crown case; compelling it would create substantial unfairness to Ul-Haque in light of his pending trial and challenge to his records of interview, and preventing cross-examination about his conduct in Pakistan would be significantly unfair to the accused.

Jurisdiction
Australia
Judgment Date
24 April 2006
Procedural Posture
Criminal Proceeding; Crown Application for an Order Requiring Izhar Ul Haque to Give Evidence at Trial Under S 128(5) of the Evidence Act 1995 / Application in the Accused's Trial Before the Supreme Court of New South Wales, Common Law Division, Criminal List
Outcome
Crown application refused; the witness was not required to give evidence in the trial.
Legal Topics
['evidence Act 1995 S 128' 'interests of Justice' 'foreign Law Self Incrimination' 'pakistan Anti Terrorism Act 1997' 'fair Trial' 'witness Reliability']
['criminal Law' 'evidence' 'privilege Against Self Incrimination' 'terrorism Offences'] ['evidence Act 1995 S 128' 'interests of Justice' 'foreign Law Self Incrimination' 'pakistan Anti Terrorism Act 1997' 'fair Trial' 'witness Reliability']

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Procedural Posture

Criminal Proceeding; Crown Application for an Order Requiring Izhar Ul Haque to Give Evidence at Trial Under S 128(5) of the Evidence Act 1995 / Application in the Accused's Trial Before the Supreme Court of New South Wales, Common Law Division, Criminal List

Legal Issues

  1. 1 ['Whether s 128 of the Evidence Act 1995 applied because the witness objected to giving evidence on the ground that it may tend to incriminate him.' 'Whether the evidence sought from the witness tended to prove that he had committed an offence against or arising under a law of a foreign country, namely Pakistan.' 'Whether the interests of justice required the witness to give the evidence despite his objection.' "Whether limiting cross-examination about the witness's training in Pakistan would unfairly affect the accused's trial."]

Ratio Decidendi

Ul-Haque was not required to give evidence because the Court was not satisfied that the proposed evidence did not tend to prove offences under Pakistani law, particularly under the Pakistan Anti-Terrorism Act 1997, and was not satisfied that the interests of justice required compulsion. The evidence was circumstantial and not critical to the Crown case; compelling it would create substantial unfairness to Ul-Haque in light of his pending trial and challenge to his records of interview, and preventing cross-examination about his conduct in Pakistan would be significantly unfair to the accused.

Court Disposition

Crown application refused; the witness was not required to give evidence in the trial.

Orders

  • ['Make an order that the witness is not required to give evidence in the trial.']