Regina v Lodhi [2006] NSWSC 638

Reported Decision : 199 FLR 328

New South Wales Supreme Court

CITATION : Regina v Lodhi [2006] NSWSC 638

JUDGMENT DATE : 24 April 2006

JUDGMENT OF : Whealy J at 1

DECISION : Make an order that the witness is not required to give evidence in the trial

CATCHWORDS : Evidence Act (NSW) - s 128(5) - interests of justice: do they require witness to give evidence? Ant-Terrorism Act 1997 (Pakistan) - unfairness to person accused of terrorism offence in pending trial

Criminal Code (Cth) Evidence Act (NSW) 1995 LEGISLATION CITED : Director of Public Prosecutions Act 1983 Pakistan Anti-Terrorism Act 1997 Companies (NSW) Code

Cureton v Blackshaw Services Pty Ltd [2002] NSWCA 187 at [37] CASES CITED : Hamilton v Oades (1989) 166 CLR 486 (High Court) Hamilton v Oades (1987) 11 NSWLR 138 at 153 R v Collisson [2003] NSWCCA 212 paras 28-33

PARTIES : Regina v Faheem Khalid Lodhi

FILE NUMBER(S) : SC 2005/1094

Mr R. Toner SC - Witness Ul-Haque COUNSEL : Mr G. Bellew - Crown Mr P. Boulten SC; Mr P. Lange - Accused

SOLICITORS : DDP (Commonwealth) - Crown Michael Doughty - Accused

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

WHEALY J

MONDAY 24 April 2006

2005/1094 - REGINA v Faheem Khalid LODHI

JUDGMENT - Application by the Crown for an order requiring that Izhar Ul-Haque give evidence at trial.

1 HIS HONOUR: Izhar Ul-Haque ("Ul-Haque") was committed for trial on 7 March 2005. On 1 April 2005 he was arraigned before Barr J on an indictment which charged him that, between 12 January 2003 and 2 February 2003, in Pakistan, he intentionally received training in respect to combat and the use of arms from a terrorist organisation, Lashkar-e-Taiba ("LeT") knowing that LeT was a terrorist organisation. This offence is provided by s 102.5(1) of the Criminal Code (Cth) as it stood in January 2003. 2 The accused entered a plea of guilty and the proceedings were stood over for trial. The trial, however, did not proceed as a consequence of a series of motions filed on behalf of Ul-Haque. These challenged the indictment on a number of bases including a constitutional argument. There were further motions seeking to exclude from the trial three records of interview conducted with Ul-Haque, two in November 2003 and one in January 2004, although these were not determined. The challenges to the indictment were dealt with by Justice Virginia Bell on 8 February 2006. They were unsuccessful. Since that time, appeals have been taken from her Honour's decision to the Court of Criminal Appeal. These are currently listed for hearing in July 2006. Subject to the fate of those appeals, Ul-Haque's trial is likely to proceed later this year. 3 I shall say something briefly about the Crown case against Ul-Haque. It seems that on 20 March 2003 he arrived at Kingsford Smith Airport Sydney. He is a citizen of Australia and holds citizenship of Pakistan. He was aged 20 years at the time. The Crown alleged that Ul-Haque was returning to Australia after having undergone a 21-day period of training at a LeT camp in Pakistan. On his arrival in Sydney, his baggage was subject to search and certain books and documents were found in his possession. They were seized by customs officers and handed to members of the Australian Federal Police Force. The Crown case against Ul-Haque is that in January 2003 LeT was an organisation that was engaged in preparing, planning, assisting or fostering the killing of Indian soldiers in Kashmir in order to advance a political religious or ideological cause, namely the restoration of control of Indian occupied Kashmir to Muslims. 4 The Crown case against Ul-Haque at trial will substantially depend on the contents of the three interviews between Ul-Haque and the Australian Federal Police, which I have identified earlier. It is common ground in the present proceedings that, should those interviews be excluded by the Court, the Crown will be unable to proceed with the charges against Ul-Haque.