R (Cth) v Alqudsi (No 2) [2022] NSWSC 609

R (Cth) v Alqudsi (No 2) [2022] NSWSC 609

The current charge under s 102.2(1) of the Criminal Code Act 1995 (Cth), concerning intentional direction of a terrorist organisation in relation to alleged domestic terrorism targets, was fundamentally different in form, elements and practical substance from the accused's prior foreign incursion convictions. The overlap in evidence about the Shura and foreign incursion conduct did not make the offences the same, did not establish double jeopardy or oppression warranting a stay, and any unfair prejudice from the volume or use of such evidence could be addressed at trial, including by directions or possible Evidence Act rulings. The public interest immunity claim was established because...

Jurisdiction
Australia
Judgment Date
17 May 2022
Procedural Posture
Criminal Procedure / Preliminary Interlocutory Rulings on Autrefois Convict, Double Jeopardy, Abuse of Process, Disclosure and Public Interest Immunity
Outcome
Proceedings not dismissed or stayed; public interest immunity motion granted.
Legal Topics
['autrefois Convict' 'double Jeopardy' 'abuse of Process' 'stay of Criminal Proceedings' 'disclosure' 'terrorism Offences' 'foreign Incursions' 'public Interest Immunity' 'legal Professional Privilege' 'listening Devices' 'search Warrants' 'evidence Act 1995 (nsw) Ss 130, 137, 138 and 165']
['criminal Law' 'criminal Procedure' 'evidence' 'public Interest Immunity'] ['autrefois Convict' 'double Jeopardy' 'abuse of Process' 'stay of Criminal Proceedings' 'disclosure' 'terrorism Offences' 'foreign Incursions' 'public Interest Immunity' 'legal Professional Privilege' 'listening Devices' 'search Warrants' 'evidence Act 1995 (nsw) Ss 130, 137, 138 and 165']

Case Brief

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Procedural Posture

Criminal Procedure / Preliminary Interlocutory Rulings on Autrefois Convict, Double Jeopardy, Abuse of Process, Disclosure and Public Interest Immunity

Legal Issues

  1. 1 ["Whether the prosecution was barred by autrefois convict because of the accused's prior convictions under the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth)." 'Whether continuation of the proceedings would amount to double jeopardy, oppression or an abuse of process requiring a stay.' "Whether evidence about the accused's earlier foreign incursion conduct could be adduced as motive evidence in the current terrorism prosecution." 'Whether subpoenas and disclosure claims should yield to public interest immunity asserted by the Commissioner of the New South Wales Police Force.' 'Whether issues concerning listening device recordings, legal professional privilege, Operation Appleby material, access restrictions and warrant validity justified dismissal, stay or other relief.']

Ratio Decidendi

The current charge under s 102.2(1) of the Criminal Code Act 1995 (Cth), concerning intentional direction of a terrorist organisation in relation to alleged domestic terrorism targets, was fundamentally different in form, elements and practical substance from the accused's prior foreign incursion convictions. The overlap in evidence about the Shura and foreign incursion conduct did not make the offences the same, did not establish double jeopardy or oppression warranting a stay, and any unfair prejudice from the volume or use of such evidence could be addressed at trial, including by directions or possible Evidence Act rulings. The public interest immunity claim was established because...

Court Disposition

Proceedings not dismissed or stayed; public interest immunity motion granted.

Orders

  • ['Proceedings not dismissed or stayed.' 'Motion for public interest immunity granted.' 'Direct the Crown to draft Short Minutes of Order reflecting the reasons for judgment.']