Counter-terrorism interviewing and investigative interoperability: R v ul-Haque [2007] NSWSC 1251

Abstract

In R v ul-Haque [2007] NSWSC 1251, Justice Adams excluded Izhar ul-Haque's admissions of training with a terrorist organisation made to Australian Federal Police (AFP) officers during interviews on 7 and 12 November 2003 and 9 January 2004. Those interviews followed earlier questioning of ul-Haque by Australian Security and Intelligence Organisation (ASIO) officers on 6 and 7 November 2003. As a result of the inadmissibility finding, charges were dropped against ul-Haque. The prior ASIO questioning was held to be both unlawful and improper via ss 84, 85 and 138 of the Evidence Act 1995 (NSW) which lead to the inadmissibility of ul-Haque's admissions obtained at the subsequent AFP interviews. This case illustrates the possible tensions between intelligence-gathering by ASIO officers and prosecution-focused, evidencegathering by the AFP in the investigation of the same alleged terrorist activity. Justice Adams' criticisms are analysed in terms of recommendations from The Street Review, The Carnell Report, ASIO's detention and questioning powers, and empirical psychological research on questioning practice.