AHA In Person v THE KING In Person [2026] SASC 52

Applicant: AHA In Person Counsel: MR P CHARMAN - Solicitor: STANLEY & CO LAWYERS Respondent: THE KING In Person Counsel: MS L BROWN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Second Respondent: ATTORNEY-GENERAL OF THE COMMONWEALTH In Person Counsel: MR P D'ASSUMPCAO Hearing Date/s: 04/02/2026, 19/03/2026 File No/s: SCCRM-25-015815 B SUPREME COURT OF SOUTH AUSTRALIA (Criminal: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. AHA v THE KING [2026] SASC 52 Judgment of the Honourable Justice Gray (ex tempore) 19 March 2026 CRIMINAL LAW - PROCEDURE - MUTUAL ASSISTANCE IN CRIMINAL MATTERS The applicant and the complainant were married in Sudan in May 2014, before moving to Australia. During a visit to Sudan in 2018, the applicant alleges the complainant assaulted him, after which the parties divorced. Subsequent events include competing allegations between the parties in Australia and Sudan. These included allegations of domestic violence, assault, and rape made by the complainant against the applicant. An arrest warrant was also issued in Sudan against the complainant, following claims by the applicant that the complainant conspired to harm the applicant’s new wife. The applicant faces criminal charges in the District Court of South Australia and seeks from this Court the issue of a certificate pursuant to section 39A of the Mutual Assistance in Criminal Matters Act 1987 (Cth). The purpose of the certificate is to require the Commonwealth Attorney-General to request the Republic of Sudan make arrangements for the provision of documents relevant to, and evidencing, the prosecutions of the complainant in Sudan, and for these witnesses to give evidence via audiovisual link, in the District Court proceedings. Held, granting the application and issuing the certificate: (1) In determining whether to issue a certificate under s 39A, the fundamental consideration is whether the issue of the certificate is in the interests of justice. The likelihood of cooperation by the foreign country, assessed inter alia by reference to evidence of reciprocity, prior provision of documents, diplomatic or consular correspondence indicating cooperation, and the foreign state’s preparedness to respond or cooperate with Australian authorities are relevant, but not determinative, considerations. [23]-[25] Evidence of a foreign state’s preparedness to engage with Australian authorities may weigh in favour of issuing the certificate, notwithstanding practical uncertainties as a result of political or social instability, or the absence of any guarantee of reciprocity. [25] -- 1 of 10 -- (2) The mandatory statutory considerations in s 39A(3)(a)-(e), the fundamental consideration of the interest of justice and other relevant matters in s 39A(4) may lead the Court to issue a certificate even when it is not certain that a foreign country will grant the request. [23] Mutual Assistance in Criminal Matters Act 1987 (Cth) s 39A, referred to. BA v Attorney-General (Cth) [2017] VSC 259, applied. Chidiac v The Queen [2016] NSWCCA 23, considered. -- 2 of 10 -- AHA v THE KING [2026] SASC 52 Criminal: Application 1 GRAY J (ex tempore): This matter concerns an application brought by AHA (‘the applicant’) seeking that this Court issue a certificate pursuant to s 39A of the Mutual Assistance in Criminal Matters Act 1987 (Cth). 2 The question that I must determine is whether I should issue a certificate indicating that it is in the interests of justice for the Attorney-General of the Commonwealth to: a. make an appropriate request to the Republic of Sudan under Part II of the Mutual Assistance in Criminal Matters Act 1987 (Cth) so that arrangements may be made for the provision of certain documents to the District Court of South Australia; and b. make an appropriate request to the Republic of Sudan under Part II of the Mutual Assistance in Criminal Matters Act 1987 (Cth) so that arrangements may be made for certain witnesses to give evidence to the District Court of South Australia by way of audiovisual link in respect of criminal proceedings in that Court. 3 The first respondent to this matter, the Director of Public Prosecutions, does not oppose a certificate being issued.1 The second respondent to this matter, the Attorney-General for the Commonwealth, does not oppose a certificate being issued. The Attorney-General of the Commonwealth submits that whilst it is impossible to determine whether any request made to Sudan will be acceded to, it is equally fair to say that there is no reason to support that such a request would be refused. I have had regard to the evidence provided by the parties concerning this matter,2 to the written submissions of the parties,3 and to the oral submissions including those advanced in Court today. 1 Director of Public Prosecutions, ‘Written Submissions of the Respondent’, Submission in [AHA] v The King, SCCRM-25-015815, 4 March 2026, at [3] (FDN 24). 2 [AHA], ‘Affidavit of Ryan Caldwell’, Submission in [AHA] v The King, SCCRM-25-015815, 8 April 2025 (FDN 2); Attorney-General (Cth), ‘Affidavit of Susie Williamson-de Vries’, Submission in [AHA] v The King, SCCRM-25-015815, 15 May 2025 (FDN 6); Attorney-General (Cth), ‘Affidavit of Andrew Bekkema’, Submission in [AHA] v The King, SCCRM-25-015815, 11 September 2025 (FDN 9); [AHA], ‘Affidavit of Richard James Stanley’, Submission in [AHA] v The King, SCCRM-25-015815, 16 January 2026 (FDN 13); Attorney-General (Cth), ‘Affidavit of Thomas Sharp’, Submission in [AHA] v The King, SCCRM-25-015815, 17 February 2026 (FDN 19); [AHA], ‘Affidavit of Aniket Parmeswaran’, Submission in [AHA] v The King, SCCRM-25-015815, 18 March 2026 (FDN 23). 3 [AHA], ‘Written Submissions of the Applicant’, Submissions in [AHA] v The King, SCCRM-25- 015815, 19 January 2026 (FDN 14); Director of Public Prosecutions, ‘Written Submissions of the Respondent’, Submission in [AHA] v The King, SCCRM-25-015815, 30 January 2026 (FDN 16); Attorney-General (Cth), ‘Written Submissions of the Attorney-General of the Commonwealth’, Submission in [AHA] v The King, SCCRM-25-015815, 30 January 2026 (FDN 17); [AHA], ‘Supplementary Written Submissions of the Applicant’, Submissions in [AHA] v The King, SCCRM- -- 3 of 10 -- [2026] SASC 52 Gray J 2 Relevant statutory provisions 4 Section 39A of the Mutual Assistance in Criminal Matters Act 1987 (Cth) provides: (1) If a defendant in a proceeding relating to a criminal matter thinks that it is necessary for the purposes of the proceeding that: (a) evidence should be taken in a foreign country; or (b) a document or other article in a foreign country should be produced; or (c) a thing located in a foreign country should be seized; or (d) arrangements should be made for a person who is in a foreign country to come to Australia to give evidence relevant to the proceeding; the defendant may apply to the relevant court (see subsection (1A)) for a certificate that it would be in the interests of justice for the Attorney-General to make any appropriate request to the foreign country under Part II, III or IV so that: (e) the evidence may be taken; or (f) the document or article may be produced; or (g) the thing may be seized; or (h) the arrangements may be made. ……. (3) In deciding whether to issue a certificate, the court must have regard to the following matters: (a) whether the foreign country is likely to grant such a request made by the Attorney-General on behalf of the defendant; (b) the extent to which the material (whether it is evidence, a document, an article or a thing) that the defendant seeks to obtain from the foreign country would not otherwise be available; (c) whether the court hearing the proceeding would be likely to admit the material into evidence in the proceeding; (d) the likely probative value of the material, if it were admitted into evidence in the proceeding, with respect to any issue likely to be determined in the proceeding; (e) whether the defendant would be unfairly prejudiced if the material were not available to the court. 25-015815, 19 February 2026 (FDN 20); Attorney-General (Cth), ‘Written Submissions of the Second Respondent’, Submission in [AHA] v The King, SCCRM-25-015815, 30 January 2026 (FDN 21); Director of Public Prosecutions, ‘Written Submissions of the Respondent’, Submission in [AHA] v The King, SCCRM-25-015815, 4 March 2026 (FDN 24). -- 4 of 10 -- [2026] SASC 52 Gray J 3 (4) Subsection (3) does not prevent the court from having regard to any other matter that it considers relevant. Background to the application 5 The applicant is facing criminal charges in the District Court of South Australia (‘the District Court criminal proceedings’). The applicant faces one count of aggravated assault causing harm, and a further count of aggravated assault. The alleged offending is said to have occurred between 31 March 2017 and 1 May 2017. The applicant also faces four charges of rape said to have occurred between 13 August 2018 and 22 August 2018. The complainant in respect of all six counts was at the relevant time the spouse of the applicant. 6 The applicant provides the following by way of background in respect of this application. The applicant and the complainant married in Sudan in May 2014. The complainant moved to Australia in April 2016 to join the applicant who was, at that time, and continues to be, an Australian Citizen. 7 The complainant and the applicant returned to Sudan for a holiday in September 2018. The applicant alleges that on 21 September 2018 whilst in Sudan, the complainant assaulted the applicant, damaged a rental car, and took possession of some of the applicant’s belongings (‘the Sudanese assault allegation’). 8 On 29 September 2018, the applicant divorced the complainant in accordance with Islamic Custom. The complainant is then said to have returned to Australia without the applicant on a false passport on 9 October 2018. On 10 October 2018, a Sudanese divorce certificate was served by the applicant upon the complainant’s father in Sudan. On 11 October 2018, the complainant is said to have made a call to SA Police alleging domestic violence and during this call the complainant was given the number to call regarding her immigration status. In that same month, in October 2018, the applicant married a woman in Sudan. On 26 October 2018, the applicant advised his migration agent that he had separated from the complainant. 9 On 21 November 2018, a report regarding the complainant’s assault on the applicant was submitted to the prosecution in the Republic of Sudan. On 22 November 2018, an arrest warrant was issued for the complainant in Sudan. The complainant is said to have become aware of the existence of this warrant. It is said that on 28 November 2018, the complainant attended at the Port Adelaide Police Station to make allegations of assault and rape against the applicant. 10 In November 2019, the complainant is said to have entered into an agreement with a male in Sudan to organise a third party to threaten the applicant’s new wife unless she paid a total of some 55,000 Sudanese Pounds (‘the Sudanese conspiracy to cause harm’). This agreement is said to have been recorded in electronic messages. 11 On 21 August 2020, the complainant filed an application for divorce in the Federal Circuit Court of Australia. The complainant was granted a visa on -- 5 of 10 -- [2026] SASC 52 Gray J 4 1 October 2021. The complainant filed a notice of discontinuance regarding the application for divorce in the Federal Circuit Court on 13 January 2022. 12 The witnesses that are present in Sudan whom the applicant seeks to call in the District Court criminal proceedings if a certificate is issued are: firstly, one witness in respect of the Sudanese assault allegation; and secondly, two witnesses whom it is said can provide relevant evidence in relation to the Sudanese conspiracy to cause harm. 13 The allegations of the complainant assaulting the applicant in Sudan on 21 September 2018 and the allegations of the complainant conspiring to cause harm to the applicant’s wife, which is alleged to have occurred in or around November 2019, are said to be subject of criminal proceedings in Sudan, with a Sudanese warrant for the complainant’s arrest having been issued in respect of both matters. 14 The applicant has received from the Sudanese Embassy a copy of the prosecution case file in respect of the allegations concerning the Sudanese assault allegation and the Sudanese conspiracy to cause harm. However, what is being sought by the certificate is the provision of documents relevant to and evidencing the prosecution of the complainant in Sudan in respect of both matters, so that the documents may be obtained in a form which will be admissible in the District Court criminal proceedings. Procedural history of this application 15 The Commonwealth Attorney-General filed an Affidavit of Ms Williamson-de Vries to assist the Court in determining the application for a certificate under section 39A of the Mutual Assistance in Criminal Matters Act 1987 (Cth). Ms Williamson-de Vries indicated that once a mutual assistance request is made by Australia to a foreign jurisdiction, it is a matter for the foreign jurisdiction whether to provide the assistance requested and, if so, the timeframes for doing so and on what terms. Ms Williamson-de Vries indicates that upon being notified of the application brought in this matter, the Central Authority (being the relevant Commonwealth body) took steps to seek advice from the Republic of Sudan in relation to providing mutual assistance in response to a request made on behalf of the applicant. 16 Ms Williamson-de Vries indicates that Australia does not have an established crime cooperation relationship with Sudan, and the Central Authority’s records show that Australia has not ever made a mutual assistance request to Sudan. 17 On 24 April 2025, the Department of Foreign Affairs and Trade presented a letter from the Central Authority to the Embassy of the Republic of Sudan in Canberra seeking Sudan’s position in relation to providing mutual assistance in response to a request made on behalf of the applicant. The request made of the Embassy of the Republic of Sudan was general in nature. What was sought was “advice as to whether the Sudanese authorities will accept and progress any -- 6 of 10 -- [2026] SASC 52 Gray J 5 mutual assistance request made by Australian authorities on behalf of a defendant in a criminal matter.”4 18 On 27 August 2025, the Sudanese Embassy provided the Central Authority with a response to the Central Authority’s letter of 24 April 2025. The response provided inter alia as follows: The Embassy of the Republic of The Sudan in Canberra presents its compliments to the Department of Foreign Affairs and Trade of the Commonwealth of Australia and referring to its Note Verbal NOMAD25/13 dated 23 April 2025 concerning proceedings involving the potential provision of mutual legal assistance between the two countries. The Embassy has the honour to inform the Department that it has received a response from the competent authorities in Khartoum, expressing their readiness to engage in potential cooperation in this regard, the Embassy would be grateful if the Department could kindly provide a draft Memorandum of Understanding to be considered between the Republic of the Sudan and the Commonwealth of Australia. The Embassy of the Republic of The Sudan avails itself of this opportunity to renew to the Department of Foreign Affairs and Trade the assurances of its highest consideration. 19 The Central Authority provided a response on 8 September 2025 which inter alia provided as follows: I note the Embassy's request for a draft Memorandum of Understanding. Under Australian law, there is no legal requirement for a formal arrangement to be in place for Australia to cooperate with another country in criminal matters. Australia routinely provides and requests mutual legal assistance on the basis of reciprocity - the understanding that Australia would, to the fullest extent permitted by Australian law, comply with a request for assistance made by the requested Government in respect of equivalent offences. Therefore, we propose that Australia would progress this matter to Sudan on this basis of reciprocity should the court decide that a formal mutual assistance request should be made. If, however, there is a Sudanese requirement for a formal framework (such as a Memorandum of Understanding) to be in place before assistance can be provided in this matter, we would be grateful for advice on this from Sudan. We will advise the Court accordingly, so it may take this into account when deciding whether to issue a certificate that would require the Australian Attorney-General to make a mutual assistance request to Sudan for this matter. 20 On 2 December 2025, the Central Authority asked the Sudanese Embassy for an update on any response to the Central Authority’s letter of 8 September 2025. On 3 December 2025, the Sudanese Embassy responded indicating that the Sudanese Embassy had not received the letter of 8 September 2025, but that having received the email of 2 December 2025, the letter of 8 September 2025 had been forwarded to the relevant authorities in Sudan. 4 Attorney-General (Cth), ‘Affidavit of Susie Williamson-de Vries’, Submission in [AHA] v The King, SCCRM-25-015815, 15 May 2025, 4-5, Exhibit SW-1 (FDN 6). -- 7 of 10 -- [2026] SASC 52 Gray J 6 21 The trial of the criminal matter is now set to be heard in the District Court of South Australia on 5 April 2027. Consideration 22 In BA v Attorney-General (Cth) Bell J held:5 The Attorney-General submitted that whether a foreign country was likely to grant a request made by the Attorney-General on behalf of a defendant (s 39A(3)(a)) is a very weighty consideration of decisive significance in the present case. I agree that it is an important consideration. Its significance is reinforced by the requirement in s 39A(2)(b) to give notice to and hear the Attorney-General (as well as other parties) on the merits of the application. As occurred in the present case, this procedure enables the Attorney-General to lead evidence and make submissions on this subject. The mandatory requirement to take this consideration into account indicates that the court should not lightly issue a certificate where it concludes that the foreign country is not likely to grant the request. However, it is equally clear that this consideration is only one of five specified considerations in s 39A(3)(a)-(e) and the fundamental consideration is whether the issue of the certificate is in the interests of justice (s 39A(1)). The other mandatory considerations, that fundamental consideration and other relevant matters (s 39A(4)) may lead the court to issue a certificate even when satisfied that the foreign country is not likely to grant the request. Section 39A(3)(a)-(e) requires the court to be sensitive to and give real consideration to a likely refusal, but not make the determination of the court beholden to a likely refusal. As the central consideration is whether it is in the interests of justice in Australia for the Attorney-General to make the request, it is difficult to see how it could be otherwise. The submissions of the Attorney-General based on futility must therefore be rejected. They apply a concept of futility that is derived from general public law sources and which does not reflect this statutory scheme. Futility analysis does not operate to qualify or override the several criteria that Parliament has legislated, which must all be applied according to their terms. 23 I accept the reasoning of Bell J in BA v Attorney-General (Cth) and the construction of the legislation that his Honour adopts. 24 In my view, none of the material before this Court suggests that the Republic of Sudan is unwilling to grant a request made by the Attorney-General of the Commonwealth. The evidence suggests to the contrary. The Sudanese Embassy in Canberra, by letter dated 27 August 2025, has indicated that it had in response to the letter from the Central Authority of 24 April 2025 contacted and received a response from the relevant authorities in Khartoum expressing their readiness to engage in potential co-operation. Khartoum is the capital of Sudan and the place from which the relevant court documents are sought. 25 The evidence before this Court indicates that there is armed conflict and civil unrest in Sudan.6 I accept that these matters may impact the likelihood of a response to any request made of the Sudanese authorities should a certificate be 5 [2017] VSC 259, 251 [55]-[56] (‘BA v Attorney-General’). See also, Chidiac v The Queen [2016] NSWCCA 23. 6 [AHA], ‘Affidavit of Aniket Parmeswaran’, Submission in [AHA] v The King, SCCRM-25-015815, 18 March 2026 (FDN 23). -- 8 of 10 -- [2026] SASC 52 Gray J 7 issued. However, this is a matter that needs to be weighed in the context of the response that has been received from the Sudanese Embassy to the Attorney-General of the Commonwealth in this matter. Whilst I would not on the evidence before me make a finding that Sudan will necessarily accede to the request made in the certificate on the basis of reciprocity, I consider that the expressed willingness of the Sudanese authorities to co-operate and the previous provision by the Sudanese Embassy of documents to the applicant indicates that it is more likely than not that the Sudanese authorities will assist by the provision of the court documents sought. I consider the general willingness to co-operate is a positive indication in relation to the potential for witness evidence to be received from Sudan, but I would not, on the evidence before me, make any finding as to the likelihood of those arrangements being made. I find that generally the matters referred to in s 39A(3)(a) favour the issuing of the certificate. 26 The applicant and the first respondent both accepted that the applicant had copies of some of the documents sought pursuant to the certificate. Both of these parties accepted that if a certificate was issued then that would avoid an issue arising at trial concerning the provenance and admissibility of the documents. I accept this submission and find that the matters referred to in section 39A(3)(b) favour the issuing of a certificate. 27 The applicant and the first respondent accepted that the documents and evidence sought pursuant to the application was relevant to the complainant’s credibility and reliability and, as such, may be admissible in the District Court criminal proceedings. I have considered the matters advanced before me by the applicant concerning the complainant’s involvement in an assault upon the applicant and a conspiracy to harm the applicant’s wife. I accept that documents concerning the complainant’s involvement in these matters may be relevant evidence concerning the complainant’s credibility and reliability upon which the applicant may seek to rely, and which may be admissible in the District Court criminal proceedings. I find that the matters referred to in section 39A(3)(c) and (d) favour the issue of the certificate. 28 I have had regard to s 39A(3)(e) and whether the applicant will be unfairly prejudiced if this material were not available in the District Court criminal proceedings. This is not a matter which I can, on the material before me, definitively determine. I have indicated above that it is, however, readily apparent as to why the applicant seeks this material and considers the material to be relevant to the applicant’s defence of the charges in the District Court criminal proceedings. 29 I have had regard to each of the matters contained in subsections 39A(3)(a) to (e) in determining whether to issue a certificate. I find that the evidence before this Court in respect of each of those considerations generally favours the grant of the certificate. Having regard to the overarching interests of justice and the matters contained in s 39A(3) of the Mutual Assistance in Criminal Matters Act 1987 (Cth), I grant the application and would issue the certificate. -- 9 of 10 -- [2026] SASC 52 Gray J 8 30 I consider that the terms of the certificate are somewhat general and having heard from the parties in relation to the terms of the certificate, it is my view that the description of the court documents sought could be more accurately described. It follows that I would grant the application and afford the parties to this proceeding the opportunity to make further submissions as to the precise terms of the certificate. -- 10 of 10 --