Regina v Lodhi [2006] NSWSC 666

New South Wales Supreme Court

CITATION : Regina v Lodhi [2006] NSWSC 666

JUDGMENT DATE : 12 May 2006

JUDGMENT OF : Whealy J at 1

DECISION : I certify that it is in the interests of justice for the Attorney-General to make a request to Pakistan under Part 2 of the Mutual Assistance in Criminal Matters Act 1987 that evidence be taken in Pakistan and broadcast to Australia via video-link.

CATCHWORDS : Criminal law - audio-visual link evidence in terrorism trial - Mutual Assistance in Criminal Matters Act 1987 - Certificate where evidence to be taken overseas - principles applicable

LEGISLATION CITED : Mutual Assistance in Criminal Matters Act 1987 Crimes Act (Commonwealth)

PARTIES : Regina v Faheem Khalid Lodhi

FILE NUMBER(S) : SC 2005/1094

Mr P. Boulten SC; Mr P. Lange - Accused COUNSEL : Mr. Maidment SC; Mr. G. Bellew - Crown Mr. R. Wood (Sol) - Attorney-General

Michael Doughty Solicitor - Accused SOLICITORS : DPP (Commonweath) - Crown Australian Government Solicitor - Attorney-General

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

WHEALY J

FRIDAY 12 May 2006

2005/1094 - REGINA v Faheem Khalid LODHI

JUDGMENT - on application re evidence via video-link with Pakistan; see page 770 of transcript

1 HIS HONOUR: An application has been made on behalf of the accused. The nature of the application makes it necessary to consider s 39A of the Mutual Assistance in Criminal Matters Act 1987. 2 The background to the present matter is an earlier application made by the accused under s 15YV of the Crimes Act (Commonwealth) for an order that the evidence of certain witnesses who are in Pakistan be taken by way of audio visual link. Although I have not made formal orders to that effect, I have indicated that it is my intention to do so, and I have also indicated my general satisfaction that the matters required under the audio link legislation to which I have made reference have been satisfied. The Crown Prosecutor several days later, indicated that information had come into his possession making it clear that Pakistan, in determining whether to allow its citizens to give evidence in the trial, require a "Mutual Assistance" request from the Commonwealth of Australia. This official attitude in turn, led to the making of the application for a Certificate under the "Mutual Assistance" legislation. 3 The basis of the present application emerges from the proposition advanced on behalf of the accused that it is necessary and in the interests of justice that the evidence be taken in Pakistan, and that it is as a consequence in the interests of justice for the Attorney-General to make an application for mutual assistance to the Pakistani authorities. 4 The legislation requires the Court, if it is considering issuing a Certificate, to take into account a number of matters. They are matters that must be taken into account. The legislation also enables the Court to take into account any other matter that it considers appropriate in coming to a conclusion that it is in the interests of justice for the Attorney-General to make a request under the relevant section of the Act. 5 I am satisfied in general terms with each of the matters set out in the legislation. I shall briefly state my reason. As to the first, whether Pakistan is likely to grant the request, of course it would be presumptuous of me to make a categorical finding in that regard but I do, from all of the material that has been shown to me, find that there is no reason to suppose other than the request would be granted. 6 As to the second matter, it is necessary to consider the extent to which the material would not otherwise be available. Strictly speaking, this may not require consideration to be given as to whether the evidence is by video-link or not, but it seems to me that, in any event, the material would not otherwise be available because of a combination of factors; those include the age of the accused's father Khalid Khan Lodhi, the business interests of other witnesses, and the obvious expense and difficulty for this group of people from Pakistan to be brought to Australia. By contrast, the taking of their evidence in Pakistan by way of video-link will be much less expensive and much less disruptive to their lives. In the case of the accused's father, it is possibly unlikely that he would be able to come to Australia, in any event, because of his age and health. In addition, there is no other source in Australia from which the evidence may come. 7 Mr Boulten, senior counsel for the accused, has described in brief terms the basis on which the material is said to be probative, and I am satisfied that it is both probative and on the face of it admissible in the proceedings. These are the third and fourth considerations. Moreover, I am satisfied that the Court would be likely to admit the evidence in the proceedings. I have not heard the evidence in detail, and of course the Crown may have some objection to some part of it, but in general terms I think I may safely say I am satisfied of those two matters that arise under sub-sections (c) and (d) of s 39A. 8 The nature of the evidence is threefold. First, to assist the accused in proving that he was in fact interested in importing to and exporting from Pakistan certain materials of a chemical and electrical nature. These materials are likely to be consistent with some of the materials referred to in the evidence the Crown relies upon to prove that the accused was engaged in carrying out acts in preparation for a terrorist act within the meaning of the legislation in the Criminal Code Act. Secondly, there will be evidence to suggest that the accused is a person of good character. Thirdly, there is evidence to suggest that the accused is not and has not been a member of the Lashkar-e-Taiba organisation, and that he has had no involvement with that organisation. 9 This brief statement of the nature of the evidence to be led from the five witnesses, in one form or another and to one degree or another, makes it plain why the evidence is probative in the proceedings. 10 The final matter under the legislation is that I have to be satisfied in relation to the issue as to whether the defendant would be unfairly prejudiced if the material were not available in the trial. That seems to me in the light of the nature of the material I have identified, to be a self-evident fact. I am positively satisfied that the defendant would be unfairly prejudiced if the material were not available. 11 Mr Boulten has also suggested that I am entitled to take into account my preliminary views about whether an order should be made under s 15Y of the Crimes Act (Commonwealth) for the taking of evidence by way of video-link, and I accept that this is an appropriate matter to take into account. 12 The Crown has not raised any objection to the certification that is sought on behalf of the accused, and the Attorney-General, who has been given notice of the application, does not wish to be heard. 13 In those circumstances, I certify that it is in the interests of justice for the Attorney-General to make a request to Pakistan under part 2 of the Mutual Assistance in Criminal Matters Act 1987 that evidence be taken in Pakistan and broadcast to Australia via video-link from the following witnesses for the purposes of the criminal trial of Faheem Khalid Lodhi: Sameer Khan Lodhi, Khalid Khan Lodhi, Arif Amanullah, Majed Khan and Athar Saeed. 14 I have been provided with a form of certificate by Mr Boulten on behalf of the accused and I have now signed that document and dated it 12 May 2006. 15 I would respectfully request that the Attorney-General recognise the urgency of the situation in relation to the making of a request to the Pakistani government, and I would also respectfully suggest that it be brought to the attention of the Pakistani authorities that, if it be at all possible, those authorities act with a degree of urgency in responding to the application. The reason for that is that we are at a point in the trial of the accused where the Crown case will shortly be closed and where the accused's case will begin. It would be potentially very disruptive to the trial if any substantial delay were to occur in relation to the availability of these witnesses for the accused. It is in those circumstances that I repeat my respectful requests to both the Australian government and the government and authorities in Pakistan that the matter be dealt with urgently and with all possible expedition.