R v Alqudsi

Hamdi Alqudsi’s trial on indictment for various offences contrary to s 7 of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) (now repealed) is listed for hearing with a jury commencing on 2 February 2016.

There are three issues for determination:

The parties asked me to defer the third issue until after judgment has been delivered on the first two issues.

On 26 August 2013 Federal Judge Pascoe, on the application of the Australian Federal Police (AFP), issued a warrant pursuant to s 49 of the Telecommunications (Interception and Access) Act 1979 (Cth) which purported to authorise the interception of communications made to or from any telecommunications service that the accused was using or was likely to use. Judge Pascoe relevantly stated that he was satisfied, on the basis of information given to him by the AFP, that information obtained from the interception would be likely to assist in the AFP’s investigation of “the following serious offences in which the named person [the accused] is involved”.

Of present relevance, one of the offences that followed this preamble was described in the following terms:

Warrants were also issued under the Telecommunications (Interception and Access) Act in respect of others: Wassim Fayad and Amin Mohamed. Relevantly the same descriptions of offences against s 7 of the Crimes (Foreign Incursions and Recruitment) Act were included in each warrant.

On 2 December 2013 Federal Agent (FA) Gategood went to the Downing Centre Local Court with FA Cole to apply for search warrants pursuant to s 3E of the Crimes Act in connection with an operation known as Operation Rathlin which was being conducted by the Joint Counter-Terrorist Team at the Sydney Office of the AFP.

The warrants issued on that day included four warrants issued by Stephen Lister, the issuing officer, to Steven Gategood, the executing officer, for the following premises or vehicles:

Later, on 2 December 2013, FA Gategood attended an operational briefing with respect to the proposed execution of the warrants the following day. On that occasion a decision was made as to which officer would be the executing officer for each warrant.

In respect of some of the warrants, FA Gategood followed his, and what he understood to be the, usual practice of: striking out his own name on the warrant; inserting the name of the officer who was to be the executing officer and; handing the endorsed warrant to the named executing officer. In accordance with this practice, FA Gategood endorsed warrant 2371 with the name of Michael Wallosceck before handing it to him.

However, of the three warrants he handed to FA Cole, FA Gategood had endorsed only one (2378) with FA Cole’s name; the other two (2372 and 2380) had not been endorsed. Thus, warrants 2372 and 2380 continued to show FA Gategood as the executing officer when FA Cole received them. When FA Cole, who understood that he was to be the executing officer in respect of warrants 2372 and 2380, saw that his name did not appear as executing officer on those warrants, he struck out FA Gategood ’s name and inserted his own.

At about 7.00am on 3 December 2013 FA Cole entered the premises at 19 Creswell Street, Revesby with nine other officers, including FA Gategood, to execute warrant 2372. As executing officer, FA Cole performed the role of “warrant holder”. He provided the accused with a copy of warrant 2372 and a document setting out the rights of an occupier.

FA Cole later handed the accused a copy of warrants 2378 (Silver Nissan Pulsar) and 2380 (Red Ford Festiva). He observed FA Gategood placing the accused under arrest.

It was common ground that no evidence was obtained from the Red Ford Festiva. Accordingly, warrant 2380 need not be considered further. Evidence that assists the Crown case was obtained pursuant to the other warrants referred to.

On 17 July 2014 George Brandis, Commonwealth Attorney-General, signed a document which is relevantly in the following form:

The accused contended that the Attorney-General’s consent was not valid because it was headed “Consent to the Institution of Committal Proceedings”.

Section 10(1) of the Crimes (Foreign Incursions and Recruitment) Act 1978 provided:

Section 68 of the Judiciary Act 1903 (Cth) makes applicable those State laws and procedures, including for the examination and commitment for trial on indictment of persons charged with offences, that apply generally in the State. Thus, a Magistrate has power to conduct criminal proceedings for Federal offences: Bagshaw v Carter [2006] NSWCA 113. The Criminal Procedure Act 1986 (NSW) relevantly applied to the accused’s commitment for trial, which took place in New South Wales. Section 47 of the Criminal Procedure Act provides that “committal proceedings” are to be commenced by the issue and filing of a court attendance notice. Such proceedings are taken to have commenced on the date of such filing: s 53. Committal proceedings are to be conducted by a Magistrate (s 55) and heard in open court (s 56). If the Magistrate is of the opinion that there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence, the Magistrate must commit the accused person for trial: s 65. The trial for which the accused is committed is trial on indictment.

The accused submitted that the consent given by the Attorney-General did not comply with s 10(1) of the Crimes (Foreign Incursions and Recruitment) Act because it referred to “committal proceedings” in the heading rather than “the commitment of a person for trial on indictment”. The flaw in the accused’s argument is that, in this context, “committal” and “commitment” are one and the same. The slight difference in language derives from the circumstance that the Crimes (Foreign Incursions and Recruitment) Act refers to “commitment” for trial and the Criminal Procedure Act, while it uses the verb “commit”, uses the noun “committal” rather than “commitment”. The accused’s argument must be rejected having regard to the terms of s 68 of the Judiciary Act.

For these reasons, the accused’s challenge to the validity of the consent has not been made out.

The accused challenged the warrants for telephone interception on two bases:

The Telecommunications (Interception and Access) Act relevantly provides:

An offence is a “serious offence” if its maximum penalty is at least seven years: s 5D(2)(a) of the Telecommunications (Interception and Access) Act.

The Telecommunications (Interception and Access) Regulations 1987 prescribe forms for warrants under the Telecommunications (Interception and Access) Act. It was not suggested that there was any non-compliance with the relevant forms prescribed.

The accused could not point to any requirement of either the Act or the Regulations that required each page of the warrant to be signed. It is not for a court to impose any additional formal requirement on such a document. Accordingly, this challenge has not been made out.

The second challenge raises the question whether the description of the offence in the warrants is sufficient to comply with the requirement for “short particulars of each serious offence” in s 49(7).

The authorities referred to by the Crown establish that what is required is that the offence be identified in a “conceptual sense” and, further, that it be sufficiently identified to enable the determination to be made whether the offence is a “serious offence” as required by s 49: R v Solomon [2005] SASC 265 at [26]-[27] per Doyle CJ (Duggan and Sulan JJ agreeing); Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 at 197 (Beaumont, Ryan and Lindgren JJ). Particulars such as would inform the person concerned of the factual ingredients of the offence are not required. Search warrants are important tools to be used in the investigation of suspected criminal conduct. Operational realities are to be taken into account: Hart v Commissioner of the Australian Federal Police [2002] FCAFC 392 at [68] per French, Sackville and Nicholson JJ. To require more particularity than is necessary to identify the offence in a conceptual way and to qualify it as a “serious offence” would be to substantially undermine the purpose and utility of search warrants.

Accordingly, the second challenge has not been made out.

Section 3E of the Crimes Act 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:

Section 3C of the Crimes Act contains the following definitions.

The Crimes Act also relevantly provides:

Section 3J of the Crimes Act confers additional powers on constables executing the warrant. These powers are conferred alike on the executing officer and a constable assisting.

The accused challenges this warrant on four grounds:

The evidence established that FA Gategood, who was the original executing officer, struck though his own name and inserted that of FA Wallosceck. Accordingly, FA Wallosceck became the executing officer for the warrant and, as such, the constable responsible for executing the warrant: s3E(5) of the Crimes Act.

There is no requirement in the Crimes Act for the original, or any subsequent, executing officer, to sign the warrant or the endorsement of the change. It is not for a court to impose any additional formal requirement on such a document.

No allegation of illegality or impropriety has been made out in respect of warrant 2371.

Challenges were made to this warrant along the same lines as were made to warrant 2371.

The evidence established that FA Gategood, who was the original executing officer, struck though his own name and inserted that of FA Cole. Accordingly, FA Cole became the executing officer for the warrant and, as such, the constable responsible for executing the warrant: s3E(5) of the Crimes Act.

For the reasons given in respect of warrant 2371, no allegation of illegality or impropriety has been made out in respect of warrant 2378.

Challenges along the lines of those made about warrants 2371 and 2378 were made in respect of warrant 2372. For the reasons given above, those challenges have, with the exception addressed below, not been made out.

The evidence established that FA Gategood, who was the original executing officer, handed the warrant in its original form to FA Cole. FA Cole, when he noticed that FA Gategood’s name was still on the warrant, struck through “Steven Gategood” and inserted his own name. Accordingly, the process for appointing a new executing officer pursuant to s 3E(5)(d) of the Crimes Act was not complied with. The accused argued that the warrant was, accordingly, invalid as there was no validly appointed executing officer and the original name (FA Gategood) had been deleted.

The Crown submitted that, given that the original executing officer, FA Gategood, did not endorse the warrant to FA Cole, the endorsement was invalid. Accordingly, it contended that FA Gategood remained the executing officer. It argued that, as FA Gategood was present throughout the execution, there was no illegality or invalidity associated either with the warrant or its execution. Moreover, the Crown relied on the apparent lack of distinction between “executing officer” and “constable assisting” in terms of the actions the respective officers were authorised to undertake. The Crown further submitted that, even if the warrant was not strictly in accordance with the Crimes Act, the deficiency was not such as to render the warrant either improper or illegal for the purposes of s 138 of the Evidence Act.

I note for completeness that the Crown eschewed the argument that FA Cole could be regarded as FA Gategood’s agent for the purposes of endorsing the warrant when he struck out FA Gategood’s name and inserted his own.

The most closely analogous case to the present to which I was referred was R v Pettit [2015] TASSC 14. Of present relevance, in R v Pettit, warrants were issued under s 3E of the Crimes Act which named Pallot as the executing officer. However, on the day on which they were to be executed, Pallot was indisposed. Poly, another officer, signed over the warrants to Hall. The warrants were executed. Pallot was not present at their execution.

Justice Tennent said:

Pettit argued that the consequences of Poly’s unauthorised act and the absence of an executing officer when the search was conducted were that the search was unlawful and the evidence unlawfully obtained.

The Crown accepted that Pallot remained the executing officer under the warrant. However, the Crown argued that the search was lawful as the powers of an executing officer and constables assisting could operate independently of each other and that, even though Pallot was not present at the search, any person who came within the definition of constable assisting who was present could carry out all powers of search and seizure under the Crimes Act, having regard to s 3F. It submitted further that the officers who were present were assisting Pallot. Accordingly, it submitted that, although Pallot was not present, the warrant and the consequential search were nonetheless valid. There were several other issues raised with the validity of the warrants and the lawfulness of their execution which are not relevant for present purposes.

Justice Tennent rejected the Crown’s submissions and decided that the search of the premises and the seizure of material were unlawful as the search had been conducted in circumstances where there was no executing officer, or constable assisting that officer, present.

The passage I have highlighted in the extract from Tennent J’s judgment in R v Pettit set out above would, thus, seem to provide some support for the Crown’s argument that FA Gategood was, and remained, the executing officer, as no valid endorsement had been made to the warrant. However, in R v Pettit, his Honour was not required to determine whether Pallot remained the executing officer since both parties accepted that he did. Moreover, in R v Pettit, there was what might be regarded as a more substantial illegality than in the present case in that Pallot had not only not endorsed the warrant to Hall or been privy to its assignment to Hall (for which Poly had been responsible) but he had also not been present for its execution. Accordingly, the correctness of the parties’ acceptance that Pallot was the executing officer, as no other executing officer had been validly appointed, did not need to be considered.

The Crown also relied on Telstra Corporation Ltd v Seven Cable Television Pty Ltd [2000] FCA 1160; 102 FCR 517 in support of its submission that FA Cole’s endorsement of his name on the warrant was invalid as it was not in accordance with s 3E(5)(d) of the Crimes Act and should therefore be disregarded ab initio. The Crown referred, in particular, to what the Court (Beaumont, Moore and Gyles JJ) said at [97]:

Telstra Corporation Ltd v Seven Cable Television Pty Ltd concerned the validity of a declaration made by the Australian Competition and Consumer Commission in purported exercise of a power to declare that a specified eligible service is a “declared service”. There was no power to make the declaration without revoking or varying a deeming statement, for which statutory provision was made. However, as the deeming statement was invalid ab initio, it presented no impediment to the validity of the declaration.

In my view, the principal difficulty with the Crown’s submission in the present case (that FA Gategood was, and remained the executing officer) is that it does not take sufficient account of the nature and importance of search warrants.

In George v Rockett (1990) 170 CLR 104 the High Court outlined the relevant principles in the following passage at 110-111:

By s 3E of the Crimes Act, the Commonwealth Parliament has conferred a substantial power on the executive to invade the privacy of individuals and to intrude on their property rights. The accused, as the occupier of the premises, was entitled to know the name of the executing officer of the warrant at the time of its execution. Section 3E requires the issuing officer to name the executing officer. The executing officer is the only person who can appoint a substitute. This must be done under the hand of the executing officer. The warrant showed that FA Cole was the executing officer since he was named as such. He had not been validly appointed. FA Gategood’s name had been deleted; accordingly, he was no longer shown as the executing officer. Proper compliance with the requirements of s 3E(5)(d) is all the more significant when, as here, the person whose rights are affected by the warrant is in no position to know whether any endorsement was made by the original executing officer and, accordingly, whether the named executing officer was validly appointed.

Although there are provisions in other statutes that authorise warrants to be issued other than to named persons, s 3E is not one of them. It would have been open to Parliament to include in the Crimes Act a section permitting irregularities to be overlooked or forgiven. The Crown did not identify any such section. Provisions of that nature are to be found in other statutes, such as s 75 of the Telecommunications (Interception and Access) Act or s 76 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), the latter of which provides:

Nor is there any provision in the Crimes Act that regulates the consequences of alterations or deletions in a warrant, such as, for example, s 14(1) of the Succession Act 2006 (NSW), which provides that an alteration to a will after it has been executed is not effective unless the alteration is executed in the manner in which a will is required to be executed.

The Crown’s submission that FA Cole’s endorsement can be simply disregarded appears to be based on the assumption that a warrant ought to be treated in a similar way to other legal documents, such as a will or a deed where an amendment, if irregular, is, in some circumstances, simply treated as of no effect, leaving intact the original document. For the reasons given above, although R v Pettit appears to support that proposition, it only arose per incuriam.

I do not regard such an approach as appropriate in the context of a warrant. Concepts which apply to the construction of other legal documents ought not be assumed to apply to warrants: see King v The Queen [1969] 1 AC 304 at 312 per Lord Hodson. The Crown’s argument, if correct, would subvert the requirement of certainty. As was said in Taikato v The Queen (1996) 186 CLR 454 at 466 (Brennan CJ, Toohey, McHugh and Gummow JJ):

I reject the Crown’s submission that, notwithstanding that FA Cole had not been validly appointed as an executing officer, the warrant was nonetheless legal. The authority to enter the accused’s premises, conduct a search there and seize items located there derived from the warrant. A warrant that does not comply with the law is an illegal warrant. As was said in George v Rockett at 110:

For the reasons given above, warrant 2372 did not comply with s 3E of the Crimes Act and its execution was, accordingly, illegal. It did not authorise the search and seizure at 19 Creswell Street, Revesby. Accordingly, the evidence obtained as a result of its execution was unlawfully obtained and s 138 of the Evidence Act applies.

It could reasonably be said that the breach was a purely technical one, which resulted from ignorance rather than disregard for the law; did not have any particular effect; and gave the APF no advantage in obtaining evidence as both FA Cole and Gategood were present throughout. However, these matters relate, not to the question of legality, but to the question whether the evidence obtained as a result of the search and seizure pursuant to that warrant ought be admitted under s 138 of the Evidence Act.

The accused was not in a position to address me on s 138. Moreover, the Crown had neither tendered, nor otherwise described, the evidence obtained through the execution of warrant 2372. Accordingly, I cannot make the judgment required by s 138 since the probative value and importance of the evidence are mandatory relevant considerations in the decision whether to admit the evidence (s 138(3)(a) and (b)). Thus, it is necessary to address that question at a further pre-trial hearing. Although the evidence of the three federal agents called in this hearing (FA Gategood, FA Cole and FA Gill) was also relevant to matters germane to those listed in s 138(3), I propose to defer making findings on such matters until after the further pre-trial hearing when I have heard submissions from the parties on all relevant matters.

I make the following directions: