R (Cth) v Alqudsi (No 2) [2022] NSWSC 609 (17 May 2022)

Last Updated: 13 April 2023

Supreme Court New South Wales

Case Name:	R (Cth) v Alqudsi (No 2)
Medium Neutral Citation:	[2022] NSWSC 609
Hearing Date(s):	28 – 30 July, 23 September, 12, 25 – 26 October 2021, 10 – 11 February 2022
Decision Date:	17 May 2022
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	(1) Proceedings not dismissed or stayed; (2) Motion for public interest immunity granted; (3) Direct the Crown to draft Short Minutes of Order reflecting the reasons for judgment.
Catchwords:	CRIMINAL PROCEDURE – autrefois convict – double jeopardy – oppression – separate offences to prior conviction in form, elements and for all practical purposes – extraordinary nature of stay of criminal proceedings – public interest immunity – public interest immunity granted – procedure available for disclosure of information if shown to be material
Legislation Cited:	Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), ss 6, 7(1)(e) Criminal Code Act 1995 (Cth), s 102.2(1) Evidence Act 1995 (NSW), ss 130, 137, 138, 165
Cases Cited:	Alister v the Queen (1984) 154 CLR 404; [1984] HCA 85 Carmody v MacKellar (1997) 76 FCR 115; [1997] FCA 839 Commonwealth v Northern Land Council (1993) 176 CLR 604; [1993] HCA 24 Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 Green v United States [1957] USSC 148; [1957] 355 US 184 Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v Carroll (2002) 213 CLR 635; [2002] HCA 55 Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42 Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43 Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2018) 266 CLR 325; [2018] HCA 53
Texts Cited:	Spencer Bower, Turner and Handley, The Doctrine of Res Judicata (3rd ed, 1996)
Category:	Procedural rulings
Parties:	Regina (Crown) Hamdi Alqudsi (Accused / Respondent) Commissioner of the New South Wales Police Force (First Applicant) Commissioner of the Australian Federal Police (Second Applicant)
Representation:	Counsel: T McDonald SC / N Roucek (Crown) M Finnane RFD QC / D Hawkins (Accused / Respondent) D Jordan (First Applicant) T Glover (Second Applicant) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Zali Burrows at Law (Accused / Respondent) Crown Solicitor’s Office (First Applicant) Australian Government Solicitor (Second Applicant)
File Number(s):	2019/354277

JUDGMENT

1. HIS HONOUR: The Court is required to deal with a number of preliminary issues that have been the subject of argument over a considerable period of time. The accused, Hamdi Alqudsi, has been charged by the Commonwealth Director of Public Prosecutions with a contravention of s 102.2(1) of the Criminal Code Act 1995 (Cth) (hereinafter “the Criminal Code”) that he did intentionally direct the activities of a terrorist organisation, being an organisation that was directly or indirectly preparing or fostering the performance of a terrorist act.
2. The “terrorist organisation” is referred to as the “Shura”, which, it is accepted, is a general word referring to a Consultative Council or Consultation Council. It is said that the Shura was formed, initially, in 2013 for the purposes of facilitating people travelling overseas to fight in Syria against the then Syrian Government and those supporting it. Some persons were sent overseas, but, at some point, it is alleged, law enforcement authorities prevented any further travel for that purpose.
3. It is said that — on the basis of evidence that will be produced and on which further comment will be made in these reasons — after the facilitation of travel overseas for that purpose had been prevented, the Shura and, in particular, the accused turned its and his attention to domestic terrorism targets. It is said that those targets included a naval base at Woolloomooloo in Sydney; one or more of the Courts in the Supreme Court dealing with matters involving Mr Alqudsi; the Mardi Gras; the Israeli Embassy in Sydney; the murder of tourists; and another unspecified attack referred to as a plan involving “the soldier letter”.
4. The membership of the Shura altered over time. The Crown, the Court is informed, intends to call two members of the Shura (in relation to whom there are Suppression Orders relating to their name and any matter that would identify them) who will give evidence in the proceedings. That evidence will include the motivation for committing domestic acts of terrorism arising from the frustration associated with the inability to facilitate persons participating in the overthrow of the Syrian Government.
5. The Syrian Government is not, as the Court understands, democratically elected. As the Court is informed, the overthrow of the Syrian Government, at the time, was also being pursued by a Kurdish minority; the United States Government; a revolutionary force, unrelated to any notion of terrorist activity; the Turkish Government, who was supporting the non-Kurdish revolutionary forces; and, many others. The Syrian Government was supported by forces from the Russian Federation.
6. The desire to facilitate the overthrow of the Syrian Government and the frustration of that desire does not, without more, seem to give rise to a motive for domestic terrorism. Nevertheless, the two witnesses, whom the Crown will call, are suspected to give that evidence. Those witnesses will, for obvious reasons, need to be the subject of significant warnings under s 165 of the Evidence Act 1995 (NSW), relating to their participation in criminal activities.
7. As a consequence, the Crown seeks to adduce evidence as to the activities of the Shura, and, in particular Mr Alqudsi, in facilitating the travel of persons to Syria for the purposes of joining in the overthrow of the Syrian Government. Such activity is an offence. Mr Alqudsi was prosecuted for that offence and has been found guilty. The evidence goes only to motive and seemingly depends, for that purpose, on the evidence of the two witnesses.
8. As may be obvious, given the nature of the fear and/or allegation, the Australian Federal Police (hereinafter “the AFP”) conducted significant surveillance on a number of people in a number of properties. That surveillance and those investigations involved persons and groups beyond Mr Alqudsi and, on the evidence adduced in these interlocutory proceedings, involved the establishment by the AFP of a number of operations. It also involved the obtaining by the AFP of significant recordings and notes of surveillance.
9. The issues being determined in this interlocutory judgment relate to an objection by the accused to the continuation of the proceedings as a consequence of the doctrine of autrefois convict and the doctrine of double jeopardy; as well as a stay of proceedings on account of “unfairness”. The unfairness relates both to the same issues raised in the “double jeopardy” submission and also to the lack of disclosure in relation to various surveillance and investigation results.

Autrefois Convict

10. As earlier stated, the accused had been indicted and was found guilty of a number of previous charges. The trial of the accused (hereinafter referred to as “the first trial”) was, as one would expect, on Indictment.
11. The Indictment was preferred on 7 May 2015. The Indictment contained seven counts, each of which was a contravention of s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) (hereinafter “the Foreign Incursions Act”) and related to conduct between 25 June and 14 October 2013. As earlier stated, albeit in general terms, it is alleged that the accused performed services for a number of named persons with the intention of supporting or promoting the commission of an offence against s 6 of the Foreign Incursions Act, being the entry of that person into a foreign State, namely Syria, with the intention to engage in a hostile activity, being armed hostilities in Syria.
12. First, the offence charged on 7 May 2015 is a fundamentally different offence to that charged in the current Indictment. The elements of the offence are both as a matter of law and as a matter of practicality, fundamentally different. There are a number of such differences.
13. The first trial considered an allegation of facilitating persons to perform services, being armed conflict in Syria. The current charge relates to directing an organisation that is a terrorist group in relation to plans for domestic terrorism, that is terrorism the target of which is in Australia. The only possible relevant similarity in the conduct that would give rise to the offence here charged and the offences which were charged in the first trial is that each of them relate to the conduct of the Shura. However, even in relation to that issue, as earlier stated, the membership of the Shura altered over time.
14. Otherwise, the complaint is that the evidence relating to the first trial — being evidence alleging the activities of the Shura in seeking to send persons overseas to engage in armed hostilities in Syria — is to be adduced in these proceedings, because the Crown alleges that the frustration of that activity was the motive for Mr Alqudsi directing the Shura in relation to domestic targets.
15. The principles of autrefois convict (or autrefois acquit) are well known. Simply, it means that the accused has either been acquitted or convicted on another occasion. A prior acquittal or conviction is a bar to a second Indictment for the same offence. The definition of the same offence does not require identicality. It applies to any offence of which the accused could have been properly convicted on the trial of the first Indictment.
16. Further, if the crimes charged are so distinct that the evidence necessary to prove one will not prove the other, then it cannot be said, legitimately, that the doctrine of autrefois applies, and there is no bar to a subsequent prosecution.
17. The issue is further complicated because the mere circumstance that the facts are the same in both trials is not the true test of whether the plea in bar operates. The test is whether the acquittal or conviction on the first charge necessarily involves an acquittal on the second charge.
18. Thus, for example, a conviction or acquittal for murder does not prevent a subsequent conviction for arson, which may have caused the death. Of course, any subsequent conviction of that second charge would have a significant effect on any additional punishment that may be imposed.
19. To be fair to the accused and his legal representatives, the application of the formal doctrine of autrefois convict was argued, if at all, faintly. Rather, the emphasis was on “double jeopardy” and oppression.
20. Nevertheless, autrefois convict, being a plea in bar, is not available where the subsequent offence contains elements not included in the first offence.^[1] The rationale for the foregoing proposition, including the more strict application of the term, being double jeopardy, was said by the High Court to be best described by Black J in the US Supreme Court, where his Honour said:

“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”^[2]

21. Notwithstanding the foregoing rationale, adopted by the High Court, the High Court made clear that the range of crimes and punishments has been so expanded that a single series of actions can give rise to several different criminal offences. Further, an offender is to be punished only for the offence for which he or she is charged. Further again, the prosecuting authorities should be framing charges that will reflect all of the accused’s criminal conduct, thereby enabling the imposition of a sentence that will truly reflect the total criminality of the conduct.
22. Notwithstanding the foregoing explanation of the reasons that multiple offences may be charged, the High Court made clear that a person may not be prosecuted for one offence when that person has previously been prosecuted for substantially the same offence or for an offence the gist or gravamen of which is the same as the prior offence or prosecution for the same matter.^[3]
23. The plea in bar of autrefois acquit or autrefois convict directs attention to that which is required to be proved to establish the commission of each of the offences charged. In that manner, it is necessary to identify the elements of each offence and the facts that are necessary to prove each such element. The identity of witnesses or documents is not the relevant enquiry.
24. Nevertheless, a prosecution may be stayed as an abuse of process because it involves double jeopardy but does not involve the doctrine of autrefois convict. In this case, the offence with which the accused has been charged and is to be tried now is fundamentally different from the charge and the conviction that was previously faced by him. There are some facts that are relevant to each. But even those facts which are necessary to be proved in each prosecution are not particularly significant.
25. That which may be overlapping in terms of the facts and the circumstances is the operation of the Shura. Otherwise, there is little that overlaps, or which is necessary to prove in order to establish the elements of each offence.
26. The foregoing does not deal with the evidence proving that the accused sent, and attempted to send, persons overseas to engage in armed conflict against the Syrian Government. Before dealing with that aspect, it is necessary to deal more fully with the aspects of double jeopardy and abuse of process that are not covered by the plea in bar.

Double Jeopardy

27. As the High Court commented, by reference to Pearce, supra, the expression “double jeopardy” gives rise to difficulty because it is not always used to the same effect. In Carroll,^[4] the Court cited with approval the passage from Pearce, supra, being the following passage:

“The expression ‘double jeopardy’ is not always used with a single meaning. Sometimes it is used to refer to the pleas in bar of autrefois acquit and autrefois convict; sometimes it is used to encompass what is said to be a wider principle that no one should be ‘punished again for the same matter’. Further, ‘double jeopardy’ is an expression that is employed in relation to several different stages of the criminal justice process: prosecution, conviction and punishment.”^[5]

28. The circumstances with which the High Court was dealing in Carroll were that the accused was prosecuted for perjury in circumstances where it was alleged that he had lied on oath during his trial for murder, of which he was acquitted. Even though the offence with which the accused was charged was a fundamentally different offence to the charge of murder of which the accused had been acquitted, the High Court held that the charge for perjury was an abuse of process because it required, in order to prove guilt for perjury, the prosecution to controvert the accused’s acquittal on the charge of murder.
29. It is necessary to deal with the conceptual basis for the doctrines of autrefois and double jeopardy. As was made clear in Pearce, supra, the conceptual basis for autrefois acquit and autrefois convict is different, even though both are usually treated in like manner. The joint judgment^[6] refers to those differences, which are more fully treated in the judgment of Gummow J.
30. In his Honour’s judgment in Pearce, Gummow J cites, with approval, the following passage:

“There is a crucial distinction between pleas of autrefois acquit and autrefois convict though the two are often associated. Autrefois acquit is the species of estoppel by which the Crown is precluded from reasserting the guilt of the accused when that question has previously been determined against it. Autrefois convict, on the other hand, is akin to merger. It is the application to criminal proceedings of the maxim transit in rem judicatam [where a plaintiff is precluded from commencing further proceedings upon the same cause of action for which judgment has already been obtained].”^[7]

31. In turn, the foregoing approach was a reiteration of that which can be derived from the joint judgment of Gaudron and Deane JJ in Rogers.^[8]
32. The doctrines, both of the plea in bar and of the broader concept of double jeopardy, derived from the policy of the criminal law. So much was acknowledged and stated by the High Court in Carroll, supra. In Carroll, the joint judgment said:

“[21] A criminal trial is an accusatorial process in which the power of the State is deployed against an individual accused of crime. Many of the rules that have been developed for the conduct of criminal trials therefore reflect two obvious propositions: that the power and resources of the State as prosecutor are much greater than those of the individual accused and that the consequences of conviction are very serious. Blackstone’s precept ‘that it is better that ten guilty persons escape, than that one innocent suffer’ may find its roots in these considerations.

[22] Many aspects of the rules which are lumped together under the title ‘double jeopardy’ find their origins not so much in the considerations we have just mentioned as in the recognition of two other no less obvious facts. Without safeguards, the power to prosecute could readily be used by the executive as an instrument of oppression. Further, finality is an important aspect of any system of justice. As the New Zealand Law Commission said in a recent report dealing with the possibility of statutory relaxation of the rule against double jeopardy in the case of acquittals procured by perjury or perversion of the course of justice, the need to secure a conclusion of disputes concerning status is widely recognised, and the status conferred by acquittal is important. The Commission quoted what was said by Lord Wilberforce in The Ampthill Peerage:

‘Any determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interest of peace, certainty and security it prevents further inquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth ... and these are cases where the law insists on finality.’

[23] It is, nonetheless, important to recall that the four considerations which we have mentioned (the imbalance of power between prosecution and accused, seriousness for an accused of conviction, prosecution as an instrument of tyranny and the importance of finality) are not the only considerations which find reflection in the criminal law system. At the very root of the criminal law system lies the recognition by society that some conduct is to be classified as criminal and that those who are held responsible for such conduct are to be prosecuted and, in appropriate cases, punished for it. It follows that those who are guilty of a crime for which they are to be held responsible should, in the absence of reason to the contrary, be prosecuted to conviction and suffer just punishment.”^[9]

33. The joint judgment in Carroll continues and deals with the principle associated with inconsistent verdicts. Essentially, an acquittal may not be questioned by evidence which, if it were accepted, would overturn or tend to overturn a verdict already reached. If it were otherwise, the accused would be denied the benefit of the acquittal and the Crown would be free to relitigate the same factual controversy.
34. In this case, the Crown seeks to adduce evidence that, in effect, is consistent with the earlier verdict and it seeks to do so for the purpose of proving the underlying factual basis for the evidence that it will adduce relating to motive. The accused submits that he is free to challenge that evidence.
35. In challenging the evidence, the previous conviction would be questioned or called in question by evidence, which, if accepted, would tend to overturn the previous verdict. However, the issue is not one of autrefois acquit, but one that relates to autrefois convict, or abuse of process as a consequence of a prior conviction.
36. For my own part, I have significant difficulties with the proposition that evidence can be adduced that seeks to challenge the finality of a verdict in relation to a prior conviction. But the doctrines of issue estoppel do not apply in criminal proceedings. Moreover, acceptance of that difficulty would raise significant problems.
37. For example, if tendency evidence were adduced which related to a prior conviction for a similar offence, could the accused be denied the capacity to challenge that evidence? The nature of criminal proceedings supports the proposition that the accused is capable of challenging any evidence adduced against the accused by the Crown and no doctrine akin to estoppel or merger could prevent such a course. For example, since the determination of the prior conviction, scientific evidence may have been obtained that would render the prior conviction unreasonable, even though the sentence has already been served and no appeal has been forthcoming.
38. The joint judgment in Carroll makes clear that there are circumstances where evidence may be tendered that might have the incidental effect of casting doubt on a prior conviction. The High Court said:

“Finality of a verdict of acquittal does not necessarily prevent the institution of proceedings, or the tender of evidence, which might have the incidental effect of casting doubt upon, or even demonstrating the error of, an earlier decision. There may be cases where, at a later trial of other allegedly similar conduct of an accused, evidence of conduct may be adduced even though the accused had earlier been charged with, tried for, and acquitted of an offence said to be constituted by that conduct. R v Z, R v Arp and R v Degnan are cases of that kind. In such cases, the earlier acquittal would not be controverted by a guilty verdict at the second trial.”^[10]

39. Over and above the foregoing, the accused relies on “oppression”, which, as pleaded, is a form of abuse of process. In this regard, the accused relies upon the misuse of the Court process by those responsible for law enforcement, resulting in a substantial unfairness to the accused.
40. The similarity of the proceedings is only superficially attractive. The fact that the Shura, which it is alleged Mr Alqudsi directed, may have been responsible for the sending of persons overseas (giving rise to the Foreign Incursions Act contravention) and may also be responsible for planning or committing a terrorist act domestically does not render the offences the same or even similar. The argument is akin to suggesting that two criminal conspiracies between the same persons to effect two different murders could not be charged, because there would be oppression due to the similarity of the offences.
41. The difficulty in these proceedings is the intention of the Crown to adduce evidence from the first trial which, it says, goes to the motive of the accused. As earlier stated, in the absence of evidence from the two witnesses who have been identified, such a motive is not obvious. Further, motive alone can never prove guilt.
42. There is much authority for the proposition that an accused is capable of challenging evidence adduced against him on any issue, and that would include evidence that has previously been utilised for the purpose of a successful conviction. Nevertheless, I have a lingering doubt as to the “fairness” of such a process to the accused.
43. In the expression “fairness”, it is not suggested that the adducing of evidence that persons were sent overseas for the foreign incursion activities would, in and of itself, be unfair. Rather, the nature and extent of the evidence is such that it may be used impermissibly by a jury to indicate guilt in the current offences, because of the guilt in the prior offences.
44. If the evidence is voluminous, as I suspect it is, then in its volume it is a distracting aspect that imposes an unfairness on the accused. If such an unfairness might arise, it seems to me it could be overcome by strong and specific directions from the Court. Yet, it would be better if it were not to arise.
45. It would be preferable, if it were possible, for the Crown and the accused to have a set of Agreed Facts as to the accused’s involvement in facilitating people going overseas to overthrow the Syrian Government. It would then be for the jury either to believe or otherwise the two witnesses, who were members of the Shura, at least for some part of the time, in their allegation as to whether that conduct formed a motive of the accused, or any other evidence to like effect, assuming there are admissions by the accused, for the planning of acts of terrorism in Australia.
46. In other words, the fact, assuming it be the fact, that the accused sent persons overseas for the purposes of a foreign incursion goes nowhere near the conduct of domestic terrorism, unless there is an admission as to motive. Such an admission as to motive, from that which the Court has been informed, depends on the reliability and truthfulness of the two witnesses to which reference has been made, but there may be other evidence.
47. The trial on this offence should not turn into a trial on whether foreign incursion occurred — requiring the jury to determine guilt on that issue — rather than focusing the jury on whether, even if it were to have occurred, it formed a motive for domestic terrorism.
48. Having expressed that wish or desire, whether fervent or unrealistic or both, nothing that has been put by the accused renders the adducing of the evidence, in and of itself, oppressive, or such that the Court should stay the proceedings on account of double jeopardy or autrefois convict.
49. If, on an examination of the evidence to be adduced relating to the foreign incursion material, the Court forms the view that the volume of it is such that it is, in terms of its probative value, repetitive and such that it becomes unfairly prejudicial to the accused, it may require further steps to be taken. It may be open, in such a circumstance, for the Court to rely upon the provisions of s 137 of the Evidence Act, assuming, as I do, that, if an arguable situation of that kind arose, the accused would make application.
50. Ultimately, a permanent stay of a criminal trial for abuse of process is an exceptional course for the Court to undertake, given, as has been stated by the High Court, the public interest in ensuring that all crimes committed are prosecuted, to the extent that it may be fairly open so to do.^[11] This stay that has been sought by the accused is also dependent upon the doctrine of oppression relating to the failure to disclose adequately all of the arguably relevant documents in the possession of the Crown or the investigators. These last-mentioned aspects will be dealt with later in these reasons.

Public Interest Immunity

51. By Motion on notice, the Commissioner of the New South Wales Police Force (hereinafter “the Commissioner”) sought to set aside certain subpoenas served upon the Commissioner for the production of a wide range of documents.
52. Initially, the documents, or classes of documents, sought in the subpoena were extremely wide and, to a significant extent, vague. The schedule to the subpoena was amended and the grounds of the Motion were divided into three different aspects. First, the Court dealt with the issues associated with that which was described as the “technical” objections.
53. Secondly, the Court dealt with objections taken by the Commissioner on the basis of a lack of a legitimate forensic purpose. On 15 December 2021, the Court upheld the legitimate forensic purpose objection in very minor areas, and otherwise dismissed it, but reserved a number of those documents because they also related to an objection, taken by the Commissioner, in relation to public interest immunity. The public interest immunity objection remains to be resolved.
54. The somewhat trite description of the amount of material sought by the subpoena as being “large” is an understatement. The foregoing is not a criticism of the accused.
55. As earlier stated, as a result of the seriousness of the fears and suspicions of the New South Wales Police Force (hereinafter “the NSWPF”) and the AFP, the number of operations that were established to deal with that which was thought to be threats to the community were significant. It is necessary to set out some of the circumstances of that investigation.
56. At one stage, the Crown alleged that there were 275,000 hours of telephone intercepts. This misstatement was the subject of applications and, ultimately, the Court was informed that there were 275,000 calls, some of which resulted in no answer or no conversation. Nevertheless, the amount of telephone intercepts and documentation that the accused alleges may be relevant is significantly voluminous.
57. First, it should be noted that there is in existence a Joint Counter Terrorism Taskforce (JCTT), which consists of officers of the AFP and NSWPF. One of the operations that was established by the JCTT was Operation PEQIN.
58. Operation PEQIN commenced on 30 June 2015 to investigate an alleged plot, believed at the time to involve the accused, to execute terrorist attacks on the Court. Initially, the Crown did not disclose some material relating to Operation PEQIN. As I understand it, at the time of writing this judgment, all of the required material from Operation PEQIN, other than that which is subject to the public interest immunity argument, has been disclosed.
59. It is sufficient, for present purposes, to state the established and uncontroversial principle that it is a duty reposed on the Crown, in a criminal trial, to disclose all relevant material, including material that may be exculpatory of the accused.
60. At some stage, the accused submitted that none of the material could be used because it arose from warrants that were not directed at Mr Alqudsi. The submission was made that the information obtained under warrant directed at a different person or for a different purpose could not be utilised against Mr Alqudsi.
61. It was put, correctly, that information obtained from a warrant for which the application was not bona fide but made for ulterior purposes would be invalid. Such a proposition is accepted.
62. However, there is no evidence that any warrant issued in relation to any of the matters arising from any one of the operations was issued for a purpose other than that stated in the application for the warrant. I do not accept that information obtained compulsorily, by operation of a warrant in relation to a criminal offence, cannot be used for a related criminal offence. Therefore, I do not accept, particularly in the absence of evidence of the precise nature of the warrants issued, that any of the material obtained has been either obtained unlawfully or for a purpose other than the prosecution of offences relating to the terrorism plots.
63. Apart from Operation PEQIN, other currently relevant issues arise from Operation Appleby, from which daily summaries and shift synopses were sought and were served on 28 March 2022.
64. Operation Appleby was investigating allegations relating to facilitating armed incursion participation by Australians travelling to Syria. It commenced in approximately May 2014 and also involved the accused.
65. Another JCTT investigation was Operation Rathlin, which pre-dated Operation Appleby, and seems to have involved foreign incursion issues in Syria and also involved the accused. It commenced in approximately August 2013 and concluded in December 2013.
66. There were other operations, some of which had seemingly nothing to do with the accused. For example, Operation PEQIN / FELLOWS dealt with the murder of Curtis Cheng. No doubt some confusion was caused by its name which may have arisen because it was an offshoot of Operation PEQIN.
67. On the other hand, Operation Axion was the operation that dealt with the security measures that were thought to be necessitated by the perceived threats to domestic targets arising from the information gleaned in Operation PEQIN, but did not relate to any conduct of the accused, or any other person. There were different operations of JCTT relating to persons, other than the accused, suspected of terrorism activity. Except to the extent such material may include information to the effect that disclosed members of the Shura or a director that is, or is not, the accused, such investigations would not be required to be disclosed.
68. Because of the volume of information collected by the JCTT, a responsible investigating officer has executed an Affidavit to the effect that none of the material is required to be disclosed by the Crown. It is, of course, the duty of the Crown to satisfy itself that all such material has been disclosed, but, it seems, sufficient steps have been taken for that purpose.
69. As earlier stated, the redactions to material that have been provided to the defence on the basis of legitimate forensic purpose, and bases for nonproduction other than public interest immunity, have already been resolved.
70. Also resolved are the issues raised in many respects as to access; the telephone intercept access; complaints as to the conduct of Corrective Services relating to access and computers; phone-call confidentiality; and restrictions on legal visits.
71. Dealing with the issue of public interest immunity, it is necessary to state that the principles to be applied are well-known and, even in these proceedings, uncontroversial. The principles established for the operation of public interest immunity are most often cited by reference to the High Court judgment in Alister.^[12] While the claim of the Commissioner rests, not only on the common law doctrine, but on the provisions of s 130 of the Evidence Act, the test is not relevantly different.
72. The High Court, in Alister, approved the approach taken in Sankey v Whitlam^[13] and said:

“Sankey v. Whitlam establishes that when one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration - i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation.”^[14]

73. Where one is dealing with criminal prosecution and the duty of disclosure of the Crown (including investigators), the two public interests that are considered in determining whether public interest immunity arises weigh heavily in favour of the production of documents. Where the liberty of an accused is at stake, there is an extremely important public interest to ensure that all material is produced that may tend to inculpate or exculpate the accused or may cast doubt on the reliability of the evidence upon which the Crown relies. If there be a public interest in keeping matters secret, then processes must be available to ensure, within reason, that the accused is afforded an appropriate opportunity to understand all that could be put and to rely on it.
74. Nothing has been put, by way of detailed submissions, on behalf of the accused, against the process proposed by the Commissioner. That process involves an application of the three steps to which the High Court referred in Alister. Those steps are:

    (a) an assessment of the harm that would flow, if any, from disclosure of the material to which objection has been taken and a determination that there would be such harm must be demonstrated. In those circumstances the initial approach of the Court will be to incline against disclosure;^[15]

    (b) after redacted disclosure (or nondisclosure of a particular document) the accused, in a criminal trial, who seeks access to the redacted material, would need to show that disclosure would be likely to assist materially the accused’s case;^[16]

    (c) thirdly, if the Court accepts that access to certain information that is otherwise subject to public interest immunity should be disclosed in the interests of the accused, the conflicting aspects of the public interest must again be weighed and, to the extent available, a process adopted that would allow for the material to be viewed by the accused and/or the accused’s legal representative.

75. As has been made clear on a number of occasions, a claim for public interest immunity does not require an application.^[17] The Court itself may be obliged to prevent disclosure of a document that, on its face, may be injurious to the national interest.
76. However, in this case, the Commissioner submits that, if at some point the accused identifies harm flowing from the nondisclosure, then a process may be adopted — about which discussion occurred during the course of the proceedings — in which the identity of a particular informant or agent is protected and/or the material is confined in its publication to only those that are required to receive it. The foregoing is not intended to be an exhaustive statement of the means of disclosure of otherwise immune material which does not, as a consequence of that limited disclosure, prejudice the accused, nor unduly interfere with national interests.
77. Ultimately, if there be a matter that has not been disclosed, and which is prejudicial to the case to be run by the accused, a means is available to ensure that the case of the accused is not so prejudiced.
78. In determining whether public interest immunity applies, the primary consideration is the nature of the material or information to be disclosed. It may be information of a particular kind that is required not to be disclosed, or it may be a document of a particular class that should not be disclosed.
79. The Court has an open Affidavit of Assistant Commissioner Mark Walton APM, affirmed 7 February 2022. The material sought to be subject to the immunity falls into the following categories: persons of interest other than the accused for whom there are or were ongoing investigations; methodology of the NSWPF; methodology of the AFP; and methodology of another government security agency. Further, some of the material involves the disclosure of sources to the NSWPF, the AFP and another agency or agencies.
80. Initially, I discussed with Counsel whether the methods of disclosure that were available should be a factor in determining whether public interest immunity existed. I accept that it should not. Otherwise, the immunity would not arise, and the material would be required to be disclosed.
81. In the foregoing circumstances, I accept the claim for public interest immunity and determine that the interest in protecting the national security and/or the nation outweighs, at least until further information is forthcoming, the interest of the accused in receiving a non-redacted document. The claim for public interest immunity is upheld.
82. A number of other outstanding matters are said to arise, although it is unclear how many of them are in fact extant.

Listening Devices and other Issues

83. The accused complains that certain listening device recordings have not been provided. The Court is unaware of the listening device recordings that are said to be outstanding. On the material that the Court has received, all listening device recordings have been provided, on various dates from 2020 onwards.
84. Again, the foregoing is not a criticism of the accused, nor his legal term. When some of these matters were raised, there had been no service of a range of material that, in the opinion of the Court as earlier expressed, should have been provided. As a consequence of the expression of that opinion, the material has been provided. Nevertheless, as a consequence of the provision of that material, the Court is unaware of the material that is said to arise from listening device recordings that has not been produced, unless it is the material that is said to give rise to legal professional privilege.
85. The legal professional privilege issue arises in the following circumstances. Listening devices were installed in a number of locations and there are a number of warrants for those listening devices, as well as warrants issued for telephone intercepts. The warrants for the listening devices and the telephone intercept warrants allowed for the interception of conversations to which the accused was party.
86. Some of those conversations were conversations with legal representatives. As a consequence, prima facie at least, those conversations would be subject to legal professional privilege.
87. There are times in which conditions are placed upon a warrant such as to prohibit the recording of any conversation between the target of said warrant and the target’s legal representatives. In the case of 24-hour, 7-days per week surveillance, such a condition may be such as to prevent the warrant being effective or able to be monitored.
88. The matter was determined by the Full Court of the Federal Court of Australia in Carmody v MacKellar.^[18] In Carmody, supra, the Full Court of the Federal Court dealt with the circumstances where the recording of conversations was such that material was recorded that was arguably subject to legal professional privilege.
89. It was held by the Full Court that a proper construction of the legislation and the warrant meant that the recording of such conversations was a necessary incident of the legislative permission to record the conversations in question. As such, the recording of such conversations did not invalidate the warrant. Nor were the police prohibited from recording such conversations.
90. Nevertheless, as a consequence of other principles associated with the protection of legal professional privilege, such conversations are not entitled to be divulged to investigators or prosecutors involved in the proceedings for an offence. If there be a breach of such a protocol, it is, generally, a matter for the trial judge (or on appeal). If there be a breach of significance, such a breach may cause the whole trial to be stayed, either permanently or for a significant period, while new investigators, new prosecutors and a new legal term are obtained.
91. The evidence before the Court is that the AFP and the NSWPF adhered to the foregoing protocol. In other words, any material which was a conversation between the accused and one or more of his legal team was “cocooned” and was not available to investigators or the prosecutors involved in the current proceedings. It was alleged, during the course of the interlocutory applications with which the Court has been required to deal, that some of the material that was prima facie subject to legal professional privilege reposed on the accused may be exculpatory and the accused sought access to that material.
92. As a consequence of that request for access, separate Counsel was briefed by the Crown Solicitor and received the material directly from different officers of the law enforcement agencies without that material first being received or reviewed by the Crown Solicitor’s Office. The solicitor with carriage of the Commissioner’s instructions at the Crown Solicitor’s Office facilitated, but did not intervene in, the process whereby the material was reviewed and legal professional privilege material redacted.
93. An amount of material has been, as a consequence of the request, discovered as being available. Apparently, there is a significant volume of material.
94. The Commissioner, in order to facilitate the production of copies of any documentation sought by the accused, has requested of the accused’s legal representatives that they provide times and dates upon which such conversations would be occurring in order to narrow the documents that would be required to be produced by the Commissioner in copy form. Apparently, as at the date of writing this judgment, that request by the Commissioner has not been the subject of compliance. All of the recordings are available to be obtained but only at the offices of the Commissioner.
95. Again, no criticism is made of the defence team in relation to the compliance or otherwise of that request. Nevertheless, the request seems reasonable. The NSWPF, who have kept quite separately, it seems, all of the material that may be, arguably, subject to legal professional privilege, is not the record-keeper of the accused, nor of his legal team.
96. These are conversations that occurred between the accused and his legal representatives. As a consequence, the contents of them would be known. That which is sought is corroborative evidence of the content of those conversations, seemingly for the purpose of finding material that is said to be exculpatory. Leaving aside that such material would, almost by definition, be self-serving, it is a reasonable request of the Commissioner for the accused to provide times and dates upon which such conversations occurred so as to enable a more expeditious and fruitful production.
97. Next, there is an issue relating to disclosure of Operation Appleby material. The material before the Court, in Affidavits and otherwise, makes clear that daily summaries and shift synopses were served on or about 28 March 2022. Some of that material is redacted. To the extent that it is redacted for the purposes already determined in this judgment or in other judgments, no further comment is needed. As a result of this or other determinations of the Court, the documents are either appropriately redacted or they are not.
98. Lastly, there are two other matters that require comment. The first of them is a complaint by the accused that there is material arising from listening devices that may only be played at the AFP headquarters. The restriction that it may be played only at the AFP headquarters is not a restriction relating to public interest immunity. Nor does it relate to confidentiality.
99. It relates, rather, to the capacity to gain access to material that is on a program that is incapable of being shared. I understand the inconvenience associated with listening to significant amount of material at the headquarters of the AFP, particularly in circumstances where it would be impossible, at that location, to obtain instructions from the accused.
100. Nevertheless, there does not seem to be anything that the Court can do about that. It does not seem that the inability to listen to the material and obtain instructions immediately from the accused is such as to render the whole of the trial unfair or its conduct either now, or at some later stage, unfair.
101. The balance of the material upon which objection is taken relates to objections under ss 137 and 138 of the Evidence Act. It also deals with the validity of search warrants.
102. At least to some extent, the validity of the search warrants has been the subject of comment already in these reasons for judgment.
103. The terms of the warrants have not been put before the Court. It is next to impossible, in those circumstances, for the Court to determine that the search warrants were “invalid”. Moreover, it is next to impossible, at this stage of the proceedings and in the absence of any evidence, to determine the “unfair prejudice” to the defendant.
104. The Court can assess the prejudice that may be suffered by the accused and, to some extent, has already commented on the possible application of s 137 to exclude evidence that is repetitive or unnecessary relating to the first trial or, more accurately, the conduct of Mr Alqudsi in relation to the foreign incursion contraventions. Nevertheless, assuming, for present purposes, that there is evidence tying that foreign-incursions conduct to the motive for the domestic terrorism that has been alleged, the fact that conduct of Mr Alqudsi to send persons overseas for armed conflict against the Syrian Government was thwarted by law enforcement agencies and caused Mr Alqudsi to turn his attention and the attention of the Shura, which he is said to direct, to domestic terrorism targets, is a matter of significant probative value. The “unfair prejudice”, if it be unfair, relates to the amount of evidence that is adduced in relation to that conduct, and whether, by virtue of that amount of material, the jury’s focus is distracted from that which are truly the elements of the offence.
105. If, as is alleged, the warrants obtained otherwise than for the purpose of this prosecution, allowed investigators to obtain material that is to be used in this prosecution and the Court came to the conclusion that such material was “improperly or illegally obtained”, contrary to s 138(1) of the Evidence Act, the Court would then be required to assess whether the use of that material — which has been improperly obtained or obtained in contravention of an Australian law, or obtained as a consequence of an impropriety or of a contravention of an Australian law — was outweighed by the desirability of admitting the evidence.
106. Thus far, in these proceedings, nothing has been put by the accused to suggest that such material, if it were improperly or illegally obtained, should not be admitted, at least to the extent that the material relates directly to Mr Alqudsi and the commission of serious offences. I do not by the foregoing suggest that it is the accused that bears the onus of showing that the desirability of admitting the evidence does not outweigh the undesirability of admitting it.
107. Nevertheless, the suggested invalidity results from the fact that the material was obtained by a lawful warrant directed to the investigation of these matters, but not Mr Alqudsi. As a consequence, the warrant could have been re-issued and directed solely to Mr Alqudsi or on account of the offences in which he is alleged to have been involved. That is a factor that informs the assessment of the undesirability of admitting evidence that is said to be improperly or illegally obtained. At this stage, the Court does not, and cannot, determine that the material has been “unlawfully”, improperly or irregularly obtained.
108. Otherwise, if matters arise during the course of the trial under either s 137 or s 138 of the Evidence Act, those are matters that the accused is free to agitate. The Court directs the Crown to produce a Minute of an Order and/or Direction giving effect to the foregoing reasons for judgment.

**********

Amendments

13 April 2023 - Publication restriction lifted.

---

^[1] Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57.
^[2] Green v United States [1957] USSC 148; [1957] 355 US 184 at 187-188, cited with approval in Pearce, supra, at [10] (McHugh, Gummow, Kirby, Hayne and Callinan JJ).
^[3] Pearce, supra, at [18] (McHugh, Hayne and Callinan JJ) and the authorities referred to therein.
^[4] R v Carroll (2002) 213 CLR 635; [2002] HCA 55.
^[5] Pearce, supra, at [9], cited in Carroll, supra, at [9] (Gleeson CJ and Hayne J).
^[6] McHugh, Hayne and Callinan JJ.
^[7] Pearce, supra, at [59] (Gummow J), citing Spencer Bower, Turner and Handley, The Doctrine of Res Judicata (3rd ed, 1996) at [309].
^[8] Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 at 274-277 (Deane and Gaudron JJ); [1994] HCA 42.
^[9] Carroll, supra, at [21]-[23] (Gleeson CJ and Hayne J).
^[10] Carroll, supra, at [50] (Gleeson CJ and Hayne J).
^[11] Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 76; [1989] HCA 46; Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2018) 266 CLR 325; [2018] HCA 53; Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20.
^[12] Alister v the Queen (1984) 154 CLR 404; [1984] HCA 85.
^[13] Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43.
^[14] Alister, supra, at 412 (Gibbs CJ).
^[15] Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604 at 617; [1993] HCA 24.
^[16] Alister, supra, at 412.
^[17] Sankey, supra.
^[18] Carmody v MacKellar (1997) 76 FCR 115; [1997] FCA 839.