UL-HAQUE v REGINA [2006] NSWCCA 241

UL-HAQUE v REGINA [2006] NSWCCA 241

The Court was bound by Polyukhovich and subsequent High Court authority to hold that legislation operating on conduct geographically external to Australia is supported by the external affairs power, so the constitutional challenge to s 102.5(1) failed. The Crown was not required under Division 102 to identify a specific completed or planned terrorist act; the amended particulars of an action involving physical attack on members of the Indian armed services in Kashmir with the requisite statutory intentions were sufficient. The proposed evidence was not shown to make the prosecution doomed to fail, and any evidentiary admissibility ruling was not appealable under s 5F.

Jurisdiction
Australia
Judgment Date
09 August 2006
Procedural Posture
Criminal Appeal/application Concerning Indictment for Offence Under S 102.5(1) of the Criminal Code 1995 / Application for Leave to Raise Grounds of Appeal From Bell J's Decision on a Motion to Quash the Indictment or Stay the Proceedings
Outcome
Application to raise grounds 1 and 2 granted but the appeal dismissed; leave to raise ground 3 refused.
Legal Topics
['external Affairs Power' 'terrorist Organisation Offences' 'particularisation of Terrorist Act' 'admissibility of Admissions and Lay Opinion' 'appealability of Evidentiary Rulings Under S 5 F of the Criminal Appeal Act 1912']
['constitutional Law' 'criminal Law' 'criminal Procedure' 'evidence'] ['external Affairs Power' 'terrorist Organisation Offences' 'particularisation of Terrorist Act' 'admissibility of Admissions and Lay Opinion' 'appealability of Evidentiary Rulings Under S 5 F of the Criminal Appeal Act 1912']

Case Brief

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Procedural Posture

Criminal Appeal/application Concerning Indictment for Offence Under S 102.5(1) of the Criminal Code 1995 / Application for Leave to Raise Grounds of Appeal From Bell J's Decision on a Motion to Quash the Indictment or Stay the Proceedings

Legal Issues

  1. 1 ['Whether s 102.5(1) of the Criminal Code 1995 was supported by the external affairs power in s 51(xxix) of the Constitution where the alleged conduct and terrorist organisation were external to Australia.' 'Whether the Crown was required to particularise a discrete terrorist act to establish that Lashkar-e-Taiba was a terrorist organisation for the purpose of Division 102 of the Criminal Code.' 'Whether statements made by the applicant were admissible for the truth of their contents and whether the Crown case was doomed to fail for want of admissible evidence that the applicant trained with a terrorist organisation.']

Ratio Decidendi

The Court was bound by Polyukhovich and subsequent High Court authority to hold that legislation operating on conduct geographically external to Australia is supported by the external affairs power, so the constitutional challenge to s 102.5(1) failed. The Crown was not required under Division 102 to identify a specific completed or planned terrorist act; the amended particulars of an action involving physical attack on members of the Indian armed services in Kashmir with the requisite statutory intentions were sufficient. The proposed evidence was not shown to make the prosecution doomed to fail, and any evidentiary admissibility ruling was not appealable under s 5F.

Court Disposition

Application to raise grounds 1 and 2 granted but the appeal dismissed; leave to raise ground 3 refused.

Orders

  • ['Application for leave to raise grounds 1 and 2 granted but the appeal dismissed.' 'Leave to raise ground 3 refused.']