R v Alqudsi

Relevant legislation

1. Section 138 of the Evidence Act relevantly provides: 138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. . . . (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
2. Section 3E of the Crimes Act 1914 (Cth) makes provision for the issue of search warrants where there are reasonable grounds to suspect there will be evidence on premises. Section 3E(5) relevantly provides: "(5) If an issuing officer issues a warrant, the officer is to state in the warrant: (a) the offence to which the warrant relates; and . . . (d) the name of the constable who, unless he or she inserts the name of another constable in the warrant, is to be responsible for executing the warrant; and . . ."
3. Section 3E(5) was the provision that was breached when the warrant was executed.

Relevant principles

1. The burden of satisfying the condition that the evidence has been improperly or unlawfully obtained is on the person seeking its exclusion. If this condition is established, the party seeking to adduce the evidence bears the burden of proving facts relevant to matters in favour of its admission: Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494 at [28] per French CJ. For the reasons given in my earlier judgment, the accused has discharged the burden of proving that the evidence was unlawfully obtained.

Relevant considerations

1. Although the range of factors relevant to my discretion under s 138 is not limited to the factors listed in s 138(3), these are mandatory relevant considerations. Accordingly, I propose to address each of these matters in turn. As the matters in s 138(3)(a) and (b) are the only factors that relate to the individual items of evidence, I propose to address the balance of the factors before turning to the particular items.

The nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding: s 138(3)(c)

1. The relevant proceeding is the criminal trial by jury of the accused for seven counts against s 7. The offence is an offence against s 7 of the Crimes (Foreign Incursions and Recruitment) Act, which is an indictable offence for which the maximum penalty is ten years' imprisonment. Section 7 relevantly provides: "Preparations for incursions into foreign States for purpose of engaging in hostile activities (1) A person shall not, whether within or outside Australia: . . . (e) give money or goods to, or perform services for, any other person or any body or association of persons with the intention of supporting or promoting the commission of an offence against section 6; . . . (1A) A reference in subsection (1) to the commission of an offence against section 6 is a reference to the doing of an act that would constitute, or would but for subsection 6(2) constitute, an offence against section 6. (1B) A person shall not be taken to have committed an offence against this section merely because of doing an act by way of, or for the purposes of, the provision of aid of a humanitarian nature. (2) A person shall not be taken to have committed an offence against this section in respect of the doing of an act outside Australia unless: (a) at the time of the doing of that act, the person: (i) was an Australian citizen; or (ii) not being an Australian citizen, was ordinarily resident in Australia; or (b) the person was present in Australia at any time before the doing of that act and, at any time when the person was so present, his or her presence was for a purpose connected with that act, or for purposes that included such a purpose. Penalty: Imprisonment for 10 years."
2. Section 6 of the Act provides: "Incursions into foreign States with intention of engaging in hostile activities (1) A person shall not: (a) enter a foreign State with intent to engage in a hostile activity in that foreign State; or (b) engage in a hostile activity in a foreign State. Penalty: Imprisonment for 20 years. (2) A person shall not be taken to have committed an offence against this section unless: (a) at the time of the doing of the act that is alleged to constitute the offence, the person: (i) was an Australian citizen; or (ii) not being an Australian citizen, was ordinarily resident in Australia; or (b) the person was present in Australia at any time before the doing of that act and, at any time when the person was so present, his or her presence was for a purpose connected with that act, or for purposes that included such a purpose. (3) For the purposes of subsection (1), engaging in a hostile activity in a foreign State consists of doing an act with the intention of achieving any one or more of the following objectives (whether or not such an objective is achieved): (a) the overthrow by force or violence of the government of the foreign State or of a part of the foreign State; (aa) engaging in armed hostilities in the foreign State; (b) causing by force or violence the public in the foreign State to be in fear of suffering death or personal injury; (c) causing the death of, or bodily injury to, a person who: (i) is the head of state of the foreign State; or (ii) holds, or performs any of the duties of, a public office of the foreign State or of a part of the foreign State; or (d) unlawfully destroying or damaging any real or personal property belonging to the government of the foreign State or of a part of the foreign State. (4) Nothing in this section applies to an act done by a person in the course of, and as part of, the person's service in any capacity in or with: (a) the armed forces of the government of a foreign State; or (b) any other armed force in respect of which a declaration by the Minister under subsection 9(2) is in force. (5) Paragraph (4)(a) does not apply if: (a) a person enters a foreign State with intent to engage in a hostile activity in that foreign State while in or with an organisation; and (b) the organisation is a prescribed organisation at the time of entry. (6) Paragraph (4)(a) does not apply if: (a) a person engages in a hostile activity in a foreign State while in or with an organisation; and (b) the organisation is a prescribed organisation at the time when the person engages in that hostile activity. (7) For the purposes of subsections (5) and (6), prescribed organisation means: (a) an organisation that is prescribed by the regulations for the purposes of this paragraph; or (b) an organisation referred to in paragraph (b) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code. (8) Before the Governor-General makes a regulation prescribing an organisation for the purposes of paragraph (7)(a), the Minister must be satisfied on reasonable grounds that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering: (a) a serious violation of human rights; or (b) armed hostilities against the Commonwealth or a foreign State allied or associated with the Commonwealth; or (c) a terrorist act (as defined in section 100.1 of the Criminal Code); or (d) an act prejudicial to the security, defence or international relations of the Commonwealth."
3. Although the range of offending conduct covered by s 7 is wide and the maximum penalty is generally regarded as being reserved for the worst category of case, the maximum penalty is nonetheless an indication of the seriousness with which Parliament regards the offence: Ibbs v The Queen [1987] HCA 46; 163 CLR 447 at 451-452.

The gravity of the impropriety or contravention (s 138(3)(d)) and whether the impropriety or contravention was deliberate or reckless (s 138(3)(e))

1. The execution of the warrant would have been lawful had FA Gategood written FA Cole's name on the warrant rather than leaving him to do it himself. FA Gategood intended to appoint FA Cole as the executing officer in his stead and instructed FA Cole that he was to be the executing officer. They were both present at the execution of the warrant. They had both received training with respect to the issuing and execution of warrants but had neither known nor understood the requirements of s 3E(5). Neither FA Gategood nor FA Cole was aware that the appointment of FA Cole as the executing officer had not been validly effected. Although FA Gategood was aware of the usual practice of the executing officer "signing over" the warrant in his or her own hand, he did not appreciate that this was what s 3E(5) of the Crimes Act required.
2. The relevant illegality is an indication that whatever training they received was inadequate to impress on them the importance of compliance with s 3E. However, although there was formal non-compliance, FA Gategood actually intended that FA Cole execute the warrant as executing officer in his stead. The illegality was not deliberate. Nor am I satisfied that it was reckless.
3. In these circumstances, I regard the gravity of the contravention as being relatively insubstantial.

Whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights (ICCPR): s 138(3)(f)

1. Article 17 of the ICCPR provides: "1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks."
2. The execution of the warrant constituted an unlawful interference with the accused's privacy, family and home. However, the illegality was so minimal that I do not regard this factor as adding much weight to the factors under s 138(3)((d) and (e), which cover the same subject matter.

Whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention: s 138(3)(g)

1. The Crown does not suggest that any proceeding would be taken against FA Cole or FA Gategood (such as disciplinary proceedings). Indeed, the circumstances of the contravention are such that their ignorance of the legal requirement could well have been the result of inadequate training as to the importance of complying with the statutory procedures for appointing another executing officer.

The difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law: s 138(3)(h)

1. There was no difficulty in obtaining the evidence without contravention of an Australian law. The accused submitted that there was, accordingly, no imperative that the evidence be obtained in that way, which had the effect of making the contravention more serious. I do not accept this submission. There would have been no contravention if FA Gategood had endorsed the warrant. The Australian Federal Police (AFP) obtained no advantage from the non-compliance. In these circumstances, although the difficulty of obtaining the evidence lawfully is a relevant factor, I regard it as a neutral one.

The probative value of the evidence (s 138(3)(a)) and the importance of the evidence in the proceeding (s 138(3)(b))

1. It is apparent from the Defence Case Statement and subsequent documents filed that the accused intends to put the Crown to proof of all elements of the offence. There does not appear, at least from these documents, to be a positive defence case. No alternative hypothesis consistent with innocence has been articulated on behalf of the accused. Accordingly, all evidence which is relevant to the counts on the indictment as propounded in the Crown Case Statement is relevant to the trial of the accused.
2. The Crown has identified from the items seized from the accused's residence at Revesby the following items which will be considered in turn (by reference to their Property Seizure Record number). I propose to address the relevance of each item of evidence before engaging in the weighing exercise required by s 138(1).
3. I note that the accused's submissions as to relevance were substantially the same for each item. The accused submitted that there were other explanations for each item of evidence; that they could not necessarily be regarded as associated with the accused; and that it was "drawing a long bow" to suggest that any one item could establish the accused's guilt of the offences charged.
4. I propose to address this submission before turning to the individual items. The Crown case is a circumstantial one. The metaphor apparently first coined by Wigmore of "strands of a cable" (Wigmore on Evidence, vol 9 (Chadbourn rev. 1981) par.2497, pp 412-414) is apt: see Shepherd v The Queen (1990) 170 CLR 573 at 579 per Dawson J. Though any one strand of the cable may not be (and would indeed be unlikely to be) strong enough to prove the Crown case, many strands may be sufficient to prove a case beyond reasonable doubt. Accordingly, it is no answer to the asserted relevance of a document or photograph or other item that it is consistent with innocence as well as guilt, or that, taken by itself, it would not be enough to prove the Crown case.

HA009: Red covered notebook labeled "Things to Do CYC and Dawah Hamdi Alqudsi" (found inside a backpack inside a wardrobe)

1. Various pages from the notebook have been identified on which are written lists of tasks and dates. The dates which are indicated are 21 August 2013 and 22 August 2013. The list for 21 August 2013 refers to travel from Sydney to Turkey, which, on the Crown case, is one of the routes taken by those referred to on the indictment. It also names three of the persons referred to in the indictment as being those for whom the accused is alleged to have performed services contrary to s 7 of the Crimes (Foreign Incursions and Recruitment) Act: Abul Qaqa (count 1); Abu Moussa (count 2) and Abu Abdul Malik (count 3). There are also references to the need to obtain a further passport urgently.
2. The probative value of the evidence appears to be high as it refers to travel to relevant countries in August 2013 and links the accused with three persons on the indictment. The document that refers to the need for a passport is also of significant probative value because it tends to indicate that the accused played a significant role in assisting those who wanted to travel. It may be relatively important to resolve ambiguities in what was said in intercepted telephone conversations. The entries in the notebook are contemporaneous with the events referred to in the indictment, which tend to suggest that the accused had a relevant motive or plan and had the knowledge or capacity to carry it out.

HA002: Piece of white paper (found inside a khaki-coloured bag inside a backpack inside wardrobe)

1. This paper contains a record of a Turkish telephone number and a Syrian telephone number. The name of Abu Quaqa (who is named on the first count on the indictment) is also written on the paper. There is also the name, "Ahrar Al Sham", which the Crown will submit is a Syrian insurgent organisation. This document tends to support the Crown case that the accused had contacts in both Turkey and Syria which he used to assist those named in the indictment to travel to Syria for the purposes of engaging in armed hostilities with an insurgent organisation there. Its probative value is significant. As with HA009, it is capable of suggesting that the accused had a relevant motive or plan and the knowledge or capacity to carry it out.

HA004: A4 piece of paper with colour photo of 9 men in black robes, each holding a rifle and one of whom is holding a flag (found inside a khaki-coloured bag inside a backpack inside wardrobe)

1. This piece of paper is relied on by the Crown to prove that the accused has an interest in Islamist fighters. It tends to show that the accused had a motive to perform services for those who proposed to enter a foreign State (Syria) for the purpose of engaging in armed hostilities. The document has some probative value and may be important to show why the men (which other evidence might indicate were travelling to Turkey) were going there.

HA007: Letter from Department of Foreign Affairs and Trade addressed to Tyler Casey dated 10 September 2013 and its attachment (HA008) (found inside khaki-coloured bag inside a backpack inside wardrobe)

1. The letter gave notice to Tyler Casey, also known as Abu Qaqa, (referred to in count 1 on the indictment) that the Minister had cancelled his passport on the grounds that the Australian Security Intelligence Organisation (ASIO) suspected on reasonable grounds that if a passport were issued to him, he would be likely to engage in conduct that might prejudice the security of Australia or a foreign country. I accept the Crown's submission that the document is relevant because the inference is available that this letter was in the accused's possession because he was concerned about Mr Casey's passport status. On the Crown case, the accused had assisted Mr Casey to travel to Syria via Turkey. The attachment, a document entitled "ASIO Security Assessment", although separately marked (HA008), forms part of the document HA007 and derives its probative value, in part, from the document to which it was attached.

HA011: Print-outs of four photographs including two showing men holding weapons, two photographs of men alleged to be persons named in the indictment

1. The Crown case is that two of the men in the photographs who are carrying weapons are Mehmet Biber and Caner Temel (who are persons named in the indictment). I consider that HA011 is potentially of significance because it may link the two men to the accused and also tends to suggest that the accused had a plan associated with their being involved in armed hostilities (as opposed, say, to humanitarian purposes).

HA016: documents found inside a plastic bag inside a suitcase in the backyard shed of the Revesby premises

1. This item comprises seven documents which are relied on by the Crown to support the inference that the accused was interested in "jihad". It is not necessary to extract from these documents the various statement that constitute a call to arms to Muslims to fight the jihad to expel infidels from Arab land. It is sufficient to note that the documents constitute tracts which encourage the readers to support armed conflict by either engaging in it or supporting those who participate in it. The distinction is drawn between "offensive jihad" where the enemy is attacked in its own terrirory and "defensive jihad" where the enemy is expelled from Muslim territory. These documents are relevant to motive and therefore have probative value in the Crown case to show the accused's interest in martyrdom and jihad. They may also tend to establish the accused's knowledge of what "martyrdom" and "mujajideen" mean when the speaker, whom the Crown says is the accused, uses the terms on the telephone in the intercepted conversations.

HA019: Brown and green spiral notebook found in the suitcase where the items that comprised HA016 were found

1. This item is a notebook with Arabic words which, when translated, read "the poor slave of Allah: Hamdi Ibrahim Alqudsi My notes" on the front cover and "Hamdi Alqudsi" with a phone number on the back cover. There are "to do" lists at around the relevant time and an "agenda" which has, as item four: "Abul-qaqa & his wife". Abulqaqa is named on the indictment (count 1) as a person to whom the accused provided services. The notebook is relevant because it is linked to the accused and tends to support a connection between the other items found in the shed (HA016) and the accused.

Whether the evidence ought be admitted under s 138

1. Section 138 requires a weighing process to be undertaken to determine whether the desirability of admitting the evidence (taking into account such matters as the nature of the offence, the probative value of the evidence and its importance to the proceedings) outweighs the undesirability of admitting the evidence (having regard to the gravity of the contravention; whether it was deliberate, or reckless, as well as the difficulty of obtaining the evidence without impropriety).
2. I consider the breach of the law by FA Gategood and FA Cole to be "innocent" in that it was neither deliberate nor reckless. The following passage from the judgment of McClellan CJ at CL (Bell and Howie JJ agreeing) from R v Camilleri [2007] NSWCC 36; 68 NSWLR 720 at [35] is, in my view, apposite: "This case is to be distinguished from a situation where evidence is obtained by police in knowing breach of the law or, where they may be reckless as to whether or not it has been lawfully obtained. Where the breach of the law is innocent, and the alleged offence serious there must be powerful countervailing considerations before the evidence should be rejected. The fact that the evidence is of high probative value will weigh in favour of its admission."
3. As I understand the Crown case against the accused (as revealed in the Crown Case Statement), it is substantially based on communications which were recorded as a result of telephone intercepts, which I have found to be lawful: R v Alqudsi [2015] NSWSC 1615 at [21]-[28]. Each of the items obtained as a result of the execution of the search warrant at the accused's premises at Revesby which is referred to above is significant and has some probative value in the context of what is alleged to have been communicated in the recorded exchanges. The relevance and probative value of each item has been identified above. In general terms, the relevance of each item is either to connect the accused to the persons named in the indictment who left Australia, or attempted to do so; to indicate the religious or philosophical motive that the accused might have had to perform the services which the Crown alleges that he provided to those persons; or to show that he was capable of assisting those persons to travel to Turkey and on to Syria through Hatay because of his contacts in Turkey and Syria.

Conclusion

1. The serious nature of the offences and the probative value and relative importance of the evidence are powerful factors in favour of its admission under s 138. The illegality, which was neither deliberate nor reckless, was relatively trivial. The act that made the execution of the warrant illegal (that it was endorsed by FA Cole instead of FA Gategood) made no difference to whether the evidence could be obtained and gave the AFP no advantage. In these circumstances, I am satisfied that the desirability of admitting each of the items relied on by the Crown which is listed above, substantially outweighs the undesirability of admitting evidence that was obtained in circumstances which involved technical non-compliance with a statutory provision.
2. I note that the argument was confined to the admissibility of the evidence under s 138. I have not heard any other objections to the evidence and, accordingly, have determined only that the desirability of admitting the evidence outweighs the undesirability of so doing pursuant to s 138 of the Evidence Act.
3. I note for completeness that there were several computer files located on a computer in the accused's residence at Revesby, which contained items of a similar ilk to those documents which comprised HA016. The Crown did not seek a determination of their admissibility under s 138 as it has not yet determined which of the document it proposes to tender in its case.

Amendments 17 May 2023 - Publication restriction removed - judgment republished DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 May 2023