By Paul Gregoire and Ugur Nedim
Prior to empanelling a jury for the 2007 trialling of Izhar Ul-Haque on a charge of training with a known terrorist organisation, NSW Supreme Court Justice Michael Adams had to make voir dire determination, which is a decision on whether evidence before a court is admissible.
The evidence in question was gathered during three Australian Federal Police interviews with Ul-Haque. Two of these took place in November 2003, and the third was held the following January.
Ul-Haque was facing one count of having received training from a terrorist organisation, contrary to section 102.5(1) of the Criminal Code (Cth). The accused had pleaded not guilty to this offence, which carries a maximum penalty of 25 years imprisonment.
The prosecution’s case against Ul-Haque involved him allegedly having undertaken combat and arms training with terrorist organisation Lashkar-e-Taiba (Let) at a camp in Pakistan over the 21-day period ending on 2 February 2003.
When Ul-Haque arrived back in Sydney from Pakistan in March that year, he was searched at the airport, and customs found materials referring to weapons, along with a letter to his family stating he was going to Kashmir to fight jihad. But following this, he was free to go.
Falsely taken into detention
On 6 November 2003, Haque was surveilled at the University of NSW, where he was a student. And he was later observed catching a train to Blacktown, and when he arrived at around 7.15 pm, three ASIO officers were waiting, and two of them approached him and his accompanying brother.
One agent describes having told Ul-Haque they were from ASIO and that they would like to talk to him in private. The other recalls the first officer telling the accused he was in “serious trouble”, which is the same version Ul-Haque recalled.
Yet, either way, the man got into the car, while his brother was left at the station to sit in his vehicle and wait while he was taken to a nearby park for questioning.
A report prepared by one of the intelligence officers on the following day sets out that “at Francis Park, it was pointed out to Izhar that he was in substantial trouble and that his full cooperation with ASIO in resolving the matter at hand would be required”.
The agents asked Ul-Haque how he knew Faheem Lodhi: a man he’d met long before going to Pakistan and is said to have provided the inspiration for him to undertake his trip. And during the 30 minute discussion, it became apparent the officers were interested in Lodhi.
During the voir dire hearing, Justice Michael Adams found that the officers gave Ul-Haque the impression he was obliged to accompany them, despite their being no legal requirement. And the accused followed, as he understood that if he didn’t, some sort of trouble would ensue.
His Honour further questioned why the agents didn’t conduct an interview at Ul-Haque’s Glenwood family home, as that’s where they were planning to take him after the sojourn in the park. And Justice Adams concluded that going to this location was intended to disturb and frighten the man.
Extensive questioning
The officers weren’t satisfied with Ul-Haque’s answers regarding Lodhi and accused him of lying. They then told him that his house was being raided, as 20 ASIO officers and a few plainclothes police officer had just executed a warrant. And the agents then drove him there, arriving at 8.45 pm.
After Ul-Haque was confronted with the huge search operation at his house, the officers suggested, at 9.15 pm, that they go and pick up his car and his brother at the station, where they’d left them. And despite it being a trip of around 40 minutes, they returned to the house at 10.30 pm.
One of the accused’s older brothers informed Ul-Haque on return, that he’d been told to tell him that he was required to cooperate and tell the truth. And the ASIO officers then ordered their detainee to return to their car out the front, where they questioned him for another hour.
Just after midnight, the officers re-entered the house with the accused, and they required him to further follow them into a bedroom for more questioning that ended at 3.45 am.
And at no time was Ul-Haque made aware that he had the right to decline questioning or that he could even leave the room.
Deceiving the suspect
Justice Adams found that during the ordeal, the ASIO officers deliberately refrained from outlining what they’re actual powers were or of informing Ul-Haque of his rights. And the language used by the agents conveyed the idea that they had the power to require the accused to follow orders.
His Honour said that the intelligence agents had intentionally led Ul-Haque to believe that if he refused to cooperate with them, he could face physical violence or be taken to a “more sinister place for interrogation” or that something may happen to his family.
“To my mind, to conduct an extensive interview with the accused, keeping him incommunicado, under colour of the warrant, was a gross breach of the powers given to the officers under the warrant,” stated the NSW Supreme Court justice.
The fact that the agency prompted Ul-Haque in questioning him was certain. And the judge added that while it was hard to ascertain what evidence was provided on first being prompted by the agents, it was clear that information relating to the accused’s trial regarding LeT was part of it.
“The ASIO officers told him when they thought he was not telling the truth and told him, or suggested, what the truth was; the inducement to say that what the ASIO officers told him was the truth, perhaps with some elaboration, was a powerful one,” explained Justice Adams.
And he further found that one of the ASIO officers was quite evasive in his answers, while he determined that the evidence provided by Ul-Haque was more convincing.
The legal ramifications
Justice Adams found the ASIO agents conveyed to the accused that he was required to follow them, when he was not, and this behaviour constituted the offence of kidnapping, contrary to section 86 of the Crimes Act 1900 (NSW). And in particular, this was done with the intention of taking advantage.
His Honour added that it was not necessary to establish that the offender was aware that the victim was not consenting, as they were simply “reckless as to the fact”. And the advantage they sought was the information gained.
“In this case there was no warrant of any kind justifying the officers, under colour of their office, to detain the accused,” explained the Supreme Court justice “Furthermore, they did not do so under any mistaken view about the matter. They were aware that what they were doing was unlawful.”
The behaviour of the two ASIO officers was found to comprise “false imprisonment and kidnapping at common law” and on the statute, which was “grossly improper and constituted an unjustified and unlawful interference with personal liberty”.
The admissibility of evidence obtained during the two November AFP interviews were also found tainted by his Honour, as Ul-Haque was still under the influence of the “oppressive conduct” on the part of the ASIO agents, due to his regarding both agencies as “arms of the state”.
Evidence inadmissible
Regarding the third AFP interview, despite it being carried out in January 2004, Justice Adams considered the accused would still have been susceptible to the initial oppressive conduct of the agents, as well as threats made by the AFP officers, during the November interviews.
In conclusion, Justice Adams added that the matter boiled down to whether the prosecution could show that the oppressive conduct of the intelligence agents hadn’t swayed the accused’s actions, which it had failed to do.
And on 5 November 2007, the Supreme Court Justice ruled the records of the three AFP interviews were inadmissible.
