Director of Public Prosecutions (Cth) v Halis (Ruling No. 1)
[2021] VCC 243
•15 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Restricted Not Suitable for Publication |
Case No. CR-19-02295
CR-19-02296
CR-19-02297
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HANIFI HALIS SAMED ERIKLIOGLU ERTUNC ERIKLIOGLU |
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JUDGE: | HIS HONOUR JUDGE O'CONNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14, 15, 16, 19, 20, 22, 30 October 2020; 7, 8 December 2020 | |
DATE OF RULING: | 15 March 2021 | |
CASE MAY BE CITED AS: | DPP (Cth) v Halis & Ors (Ruling No. 1) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 243 | |
RULING
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Subject: CRIMINAL LAW
Catchwords: Application to exclude record of interview of second accused, Samed Eriklioglu; Allegation of unreasonable force used in arrest; Further allegations of oppressive conduct and inducements; Impermissible cross-examination during interview; Questioning without proper evidentiary foundation; Investigators’ expressions of disbelief; Held: interview admissible; Some questions excluded in the exercise of discretion.
Legislation Cited: Evidence Act 2008 (Vic)
Cases Cited:Sio v The Queen (2016) 259 CLR 47, Habib v Nationwide News [2010] NSWCA 34, R v Sumpton [2014] NSWSC 1432, R v Pritchard [1991] 1 VR 84, McDermott v The King (1948) 76 CLR 501, R v Amad [1962] VR 545, R v O’Neill (1998) 48 SASR 51, Kelly v the State of Western Australia [2017] WASCA 221, R v Smith [1964] VR 95, R v Demiri [2007] VSCA 170, Higgins v R [2007] NSWCCA 56, R v JF (2009) 237 FLR 142, R v Bankowski (1971) 18 FLR 179, Cleland v R (1982) 151 CLR 1, R v Teys (2001) 119 A Crim R 398, Libke v The Queen (2007) 230 CLR 559, R v McNiven [2011] VSC 397, Palmer v The Queen (1998) 193 CLR 1, The Queen v Wills (1985) 39 SASR 35, Em v The Queen (2007) 232 CLR 67, The Queen v Bauer (2018) 266 CLR 56, Haddara v The Queen (2014) 43 VR 53, R v Lee (1950) 82 CLR 133.
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr P. Doyle with Ms S. Holmes | Commonwealth Director of Public Prosecutions |
| For the Accused Halis
For the Accused E. Eriklioglu | Mr J. McMahon SC with Mr M. Stanton Mr P. Tehan QC with Ms K. Mildenhall Mr J. Kelly SC with Mr J. Anderson | Stary Norton Halphen Slades & Parsons James Dowsley & Associates |
HIS HONOUR:
Introduction
1 Mr Tehan QC, who appears with Ms Mildenhall on behalf of Samed Eriklioglu, has made an application to exclude the record of interview conducted with his client between 3:34 am and 11:02 am on Tuesday, 20 November 2018.
2 The application alleges that admissions made by the accused in that interview are inadmissible by virtue of s 84 of the Evidence Act 2008 (the Act), because this court could not be satisfied that those admissions were not influenced by violent, oppressive, inhuman or degrading conduct.
3 It is also alleged pursuant to s 85 of the Act that the admissions were not admissible because this court could not be satisfied that the circumstances in which the admissions were made were such as to make it unlikely that the truth of the admission was adversely affected.
4 That was so, it was contended, having regard to the matters referred to in s 85(3)(b), including the nature of the questions, the manner in which they were asked, and what was said to be inducements made to the accused.
5 In the alternative, it was submitted that the admissions should be excluded because their use in evidence would be unfair to the accused pursuant to s 90 of the Act.
6 In the further alternative, it was submitted that the probative value of the admissions was outweighed by the danger of unfair prejudice. Reliance was placed on ss 135 and 137 of the Act, and what was called the Haddara[1] discretion.[2]
[1] Haddara v The Queen (2014) 43 VR 53.
[2] Reference was also made to s 136 of the Act in written submissions, however, it was not clear on what basis, if admitted, the use of the evidence was to be limited.
7 Finally, it was submitted that the answers given by the accused in his record of interview were obtained improperly, and that the investigators’ conduct of the interview engaged s 138 of the Act such that the desirability of admitting the evidence was outweighed by the undesirability of admitting the evidence.
8 The application focused, first, on the circumstances in which Samed Eriklioglu was arrested and, second, on the manner in which the interview was conducted.
9 More specifically, it was alleged that unnecessary force was used in the arrest, that the accused was not adequately cautioned, and that throughout large parts of the interview Samed Eriklioglu was questioned improperly.
10 As to the nature of the questioning it was submitted that the conduct of the interview involved the following:
· persistent questioning in which the accused’s answers were not accepted by police;
· impermissible cross-examination;
· statements of disbelief which made clear to the accused that he was to provide interrogators with answers which they regarded as credible;
· statements of disbelief which at times deprived the accused of his right to silence;
· questioning which was tendentious, the real purpose of which was to extract admissions; and
· questioning which either directly or indirectly falsely asserted the presence of the accused at recorded conversations which led the accused to wrongly believe the truth of the allegations against him.
11 Mr Doyle, who appeared with Ms Holmes on behalf the Commonwealth Director of Public Prosecutions, opposed the application. He submitted that the arrest was made using proportionate force. The questioning of Samed Eriklioglu was fair, appropriate, and the answers given by the accused were not the product of violence, threats, oppression, or inducement. The factual foundation needed to support the application was, he argued, lacking.
12 It was further submitted that the police did not apply undue pressure or attempt to entrap the accused, and whether or not the questioning at times might be described as “cross-examination”, it was not impermissibly so, nor was it unfair. To the extent that there may be isolated instances of questioning which may have inaccurately stated the evidence or indicated investigators’ disbelief, those instances could be edited or excised. There was no basis to exclude the entire interview.
Background
The charge
13 Hanifi Halis, Samed Eriklioglu and Ertunc Eriklioglu are charged with conspiracy to do acts in preparation for, or planning, a terrorist act between 9 and 20 November 2018 contrary to subsections 11.5(1) and 101.6(1) of the Criminal Code (Cth).
14 The acts alleged involve negotiating and agreeing to purchase a firearm and/or paying a cash deposit for the purchase of a firearm. The terrorist act alleged is an action or threat of action involving an attack on members of the public with a firearm in a well populated area of the city of Melbourne.
The allegations
15 Samed Eriklioglu and Ertunc Eriklioglu are brothers, whilst Hanifi Halis is an associate of both, but more so of Ertunc Eriklioglu.
16 From 27 May 2017, a Victoria Police covert operative known as CO 309 and describing himself as ‘Ali’ started regularly attending a number of mosques and prayer centres in the northern and western suburbs of Melbourne. In that way he became associated with each of the accused.
17 From November 2017 onwards, it is alleged that the accused group met with each other and with CO 309 at a garage in Geach St Dallas, where Ertunc Eriklioglu lived, to pray and to discuss their religious views.
18 In March 2018 police commenced Operation Donabate to investigate the accused’s activities. Surveillance devices were used to record conversations that occurred in the Geach St garage as well in two cars used by the accused. Their phones were intercepted and they were the subject of physical and other technical surveillance.
19 It is alleged that before and during the charge period the accused acquired, possessed, and engaged with extremist material which advocated and depicted violent jihad. They are said to have regularly accessed material relevant to the conflict in Syria and discussed the prospect of moving to that region to take part in the ongoing conflict. The passports of each of the accused were cancelled which frustrated their plans.
20 On 9 November 2018, Hassan Khalif Shire Ali engaged in a terrorist attack in central Melbourne in which three members of the public were attacked, one of whom suffered fatal injuries. The attacker was also killed. The incident generated extensive media coverage. After the attack, it is alleged that the accused discussed obtaining a firearm with CO 309. It is alleged an agreement was made to approach another covert operative, CO 239, known as John, to obtain a firearm. It was also agreed that the accused should speak in a coded language when discussing the purchase of the firearm.
21 Ultimately, a deposit of $450 was given to CO 239, whom the accused understood would conduct the purchase on their behalf. It is alleged that the accused told John that the purchase of the firearm was for the purpose of hunting.
22 Before completing the purchase the accused had a change of heart and communicated to CO 309 that they wanted to get their money back.
23 All the accused were arrested at their homes in the early hours of 20 November 2018.
24 When interviewed, Hanifi Halis remained mute. Ertunc Eriklioglu answered questions about his personal circumstances and religious ideology but generally made no comment as to the allegations. It is alleged, however, that he made a number of false denials concerning his dealings with the covert operatives and the other co-accused. Ertunc Eriklioglu’s interview is also the subject of an extant application for exclusion.
25 Samed Eriklioglu participated in a lengthy interview which is the subject of this application. He gave responsive answers which the prosecution argue amount to substantial admissions.
Approach to resolving application
26 This application raises a number of complex inter-related issues.
27 The defence position is that the whole of the interview should be excluded on whatever basis the ruling proceeds. The prosecution submit that the admissions are to be analysed as individual representations, much like the approach sanctioned by the High Court in Sio v The Queen (2016) 259 CLR 47 in the context of previous representations sought to be admitted under s 65(2)(d) of the Act. It was acknowledged however, that the same circumstances may affect the admissibility of multiple answers, and in such a case the entirety of an interview might be excluded without descending into an analysis of each representation. That said, it was argued that an individualised approach was required in this case.
28 In Sio the plurality’s reasoning as to the individualised approach is revealed in the following passage:
The focus demanded by the language of s 65 is inconsistent with the impressionistic evaluation involved in the compendious approach adopted by the Court of Criminal Appeal. The language of the statute assumes the identification of each material fact to be proved by a hearsay statement tendered in reliance on s 65 and the application of the section to that statement, whereas the compendious approach applied by the trial judge and the Court of Criminal Appeal is not focused in this way. In addition, the approach which is focused upon the particular representation tendered to prove a particular fact in issue has the associated benefit of being conducive to the preservation of clarity, good order and fairness in the conduct of criminal trials.
29 I am not so sure that reasoning readily translates to resolving the questions thrown up by this application. It seems to me, that the approach to be taken in any given case will be governed by the nature of the attack made on the admissions in question. In this instance however, the attack is wide ranging and encompasses virtually all statutory provisions which govern the admissibility and discretionary exclusion of admissions. It also embraces the overarching common law discretion to ensure a fair trial of the accused.
30 That being so, and in order to try and do justice to the arguments advanced, I have examined each of the individual objections in some detail[3] by reading the transcript of the interview, watching the visual recording, listening to a part of the audio recording where the visual recording was not available, referring to the relevant audio recordings and transcripts of covert operative deployments and to the evidence called on the voir dire.
[3] There were 70 specific objections to single questions, or passages of questions particularised in the written submissions – often with multiple arguments attaching to each objection.
31 Having completed that task, I will now deal with the issues raised by the application in three parts:
A. the circumstances of the arrest;
B. the more global objections that seek to exclude the whole or the majority of the interview; and
C. the individual objections to questions or passages of questions.
PART A – THE ARREST
The relevance of the circumstances of the arrest
32 The circumstances of the arrest form a discrete part of the evidence and appear to be relevant in two possible ways. First, the defence submit that the manner in which the arrest was carried out involved impropriety and/or illegality, in that excessive force was used, such as to engage s 138(1) of the Act.
33 Second, the circumstances of the arrest are also said to be a relevant consideration in determining whether, in combination with other matters, the interview is inadmissible pursuant to ss 84 or 85.
Evidence describing the circumstances of the arrest
Operator 166
34 Samed Eriklioglu was arrested by the Victoria Police Special Operations Group (SOG) at about 3:30 on the morning of 20 November 2018.
35 Operator 166 gave evidence that he attended Gentles Avenue in Campbellfield at about 3:00 that morning. He along with other members of the SOG approached a bungalow in the backyard of that property. As he did so, he saw a silhouette of a man standing inside through a wire security door. He and another operator called out words to the effect of “Police, don’t move, show me your hands”. In response, the wooden door was slammed shut.
36 Other officers forced entry and Operator 166 was the first to enter. Once inside he dealt with Samed Eriklioglu’s grandmother whilst Operators 163 and 125 restrained the accused. He did not see Samed Eriklioglu’s actual arrest. Shortly afterwards he observed Samed Eriklioglu on a patch of grass outside the bungalow with other SOG members standing next to him guarding him whilst waiting to hand the accused over to investigators.
37 Sometime shortly after the arrest the members involved in that arrest conducted what was called a ‘hot debrief’, the purpose of which was to discuss the events of that morning in order to analyse what went well, and what might be improved. On the basis of the information he gained during the hot debrief, Operator 166 completed a Use of Force Form at 12:10 pm on 21 November 2018. In part, the document stated: “Samed Eriklioglu was located in a bungalow at the rear of the property, where Operator 163 and 166 called on Eriklioglu whilst displaying firearms and placing him in a three-point hold resulting in the safe arrest”. It also stated that “no injuries were sustained to Eriklioglu, his family or police members”.
38 In cross-examination Operator 166 confirmed that he did not see Operator 125’s rifle become “unhinged”. He could not recall what clothing the accused was wearing. He said that at no time could he remember Operator 125 saying anything about his rifle coming into contact with the accused. He stated that If anyone had said that the accused had been injured, he would have included that in the Use of Force Form.
Operator 163
39 Operator 163 was the second person to enter the bungalow and went directly to the accused. He was able to identify him and directed him “to get on the fucking ground”. Samed Eriklioglu did not immediately comply and moved away. He was then forced to the ground with his hands behind his back. As the witness put it, he “…grabbed him by both arms – upper arm, the sides of his body. I was then able to gain control of those arms and then controllably take him to the ground… I was then able to work my way down to his hands and put them behind his back.”[4] Flexi cuffs were then applied.
[4] Transcript of pre-trial hearing 16 October 2020, page 420.
40 Operator 163 perceived that Samed Eriklioglu was actively resisting and, as he put it, he was “posturing” in order to stand up. He said he did not have full control of the lower half of his body. He said he was aware that if he used all his weight that might cause positional asphyxiation. He then bent the accused across the bed in order to “get better control”. The witness said that Operator 125 then came to his assistance and was able to gain control of Samed Eriklioglu’s left side.
41 As this was done he saw Operator 125’s long arm firearm swing down and make contact with the right side of Samed Eriklioglu’s head in the face area. He did not observe any injuries to that area. Subsequently he believed he asked Samed Eriklioglu if he had any injuries and that he responded that he did not. The witness explained that the Use of Force Form did not describe Operator 125’s rifle coming into contact with the accused because he regarded it as accidental force. However, he asserted that to ensure that the incident was recorded it was described in his statement.
42 Once restrained, Samed Eriklioglu was given a pat-down search after which he was moved outside into the backyard and given a full search: this involved pulling up his shirt and pulling his pants and underwear down to ensure that there were no hidden weapons. He was also told he was under arrest and given a caution. When asked if he understood the caution, the accused replied that he did.
43 In cross-examination, Operator 163 stated that whilst the accused was on the ground, face down, restrained with flexicuffs, he could feel the accused’s muscles contract as if he was attempting to stand. The witness took the accused to be resisting and accepted that he forcefully dragged the accused across the room to place him on the bed. At that point Operator 125 joined in to gain further control of him.
44 He couldn’t recall whether the incident concerning Operator 125’s gun was discussed in the hot debrief but he emphasised that it was certainly included in his statement.
Operator 125
45 Operator 125 was the team leader and a Sergeant of police. The rifle he was carrying was 80 cm long and would have weighed approximately three to four kg. It was secured to his ballistic vest with a cord approximately 100 mms long. The gun was secured about two-thirds along the length of the rifle such that if he was kneeling, the butt of the gun would sit under his chin and the muzzle of the gun would not touch the ground.[5]
[5] Transcript of pre-trial hearing 16 October 2020, page 453.
46 He recalled coming to the assistance of Operator 163 and perceived that that was necessary because it was taking some time to restrain the suspect. He couldn’t recall how many times his gun came into contact with the suspect. He suggested the firearm had “a mind of its own” when both hands need to be used. He did not see any injury caused.
47 He said that he had assisted in placing the ties on the accused’s wrists, however he was confronted with Operator 163’s version, which was to the effect that the ties had already been applied when he assisted. He had a clear impression that he had been seeking to assist in putting the ties on. It was put to Operator 125 that he had invented a reason for intervening and using force because the force he used was unnecessary and unjustified. That was denied.
48 In re-examination Operator 125 said he had participated in countless arrests. He was not in a position to say when the restraints had been applied but said that it was important to assist, otherwise Operator 163 would have had to apply greater force.
Federal Agent Sherief Maksoud
49 The informant gave evidence for parts of 14, 15, 16, 19 and 20 October.
50 His said that his role was essentially to arrest and interview Samed Eriklioglu. He went to Gentles Avenue, Campbellfield at about 3:30am on 20 November 2018. He went to the backyard of those premises where he first saw Samed Eriklioglu on the ground near the clothes line having just been arrested by the SOG. He was restrained using cable ties which were replaced with the informant’s handcuffs. He was seated on a plastic chair and read a caution and his rights. That conversation was recorded on a micro-recorder.
51 When the accused was first seen, his singlet appeared to be ripped, he was wearing underpants,[6] and he had a lump “protruding from the side of his head”. The accused was asked if he needed medical attention to which he responded that he was okay. Some clothes were organised for him and he was taken to the Melbourne Australian Federal Police (AFP) offices.
[6] Transcript of pre-trial hearing 14 October 2020, page 285.
52 At the police station the informant noticed that Samed Eriklioglu had a lump at the back of his head.[7] Mr Maksoud said there was also a mark on the side of his face. The accused was asked if he was okay and he responded that he was.[8]
[7] Transcript of pre-trial hearing 14 October 2020, page 286.
[8] Transcript of pre-trial hearing 14 October 2020, page 287.
53 Sergeant Yip also conducted a welfare check. Mr Maksoud was not present at that time. The informant did not see the need for him to be assessed by a forensic medical officer. The accused was asked multiple times if he was okay, was responding to questions and didn’t exhibit any signs that he was experiencing problems. Although he had only met the accused that day, he had been listening to listening devices and telephone intercepts for months and so had some familiarity with his manner. The accused didn’t seem as if he was suffering any head injury.
54 The interview was ready to commence at about 4:40 am but was further delayed to allow the accused to pray. The interview actually commenced at 5.27 am.
Detective Senior Constable Chris Morrison
55 Chris Morrison was a Victoria Police officer and a member of the Joint Counter-Terrorism Team. He assisted Mr Maksoud with the arrest and interview of Samed Eriklioglu, acting as corroborator. He arrived at Gentles Ave, Cambellfield at about 3.34 am with Mr Maksoud. Responsibility for custody of the accused was handed to him and Mr Maksoud, at which time the accused was given a caution and informed of his rights. That process was recorded on a micro-recorder and concluded at 3.37 am.
56 Mr Morrison had a ‘vague recollection’ that Samed Eriklioglu may have had a bruise under his eye and thought he had a bump on the side of his head. He saw no need to obtain medical assistance or to have a forensic medical officer assess the accused as to his fitness to be interviewed. Right throughout his dealings with Samed Eriklioglu, Mr Morrison did not detect any concern as to cognitive ability or some other effect from a head injury.
Other evidence
57 Sergeant Yew Kwee Yip of Victoria Police was working as a night shift patrol supervisor in the Melbourne Police Service area in the early hours of 20 November 2018. He responded to a request to attend at AFP headquarters in Latrobe St to conduct a ‘welfare check’ on the three accused and arrived at about 4.33 am.
58 He saw the accused at 4.47 am. Mr Yip’s statement was tendered on the voir dire without objection. In that statement he says that Samed Eriklioglu “… did not disclosed (sic) any injuries to me in our conversation however, I observed a red mark on his left temple”.
59 The AFP station attendance summary was also tendered in evidence (Exhibit K). An entry at 4.38 am states “Injuries – red mark on left temple”. Further entries at 4.47 am described as “Initial supervisor check” state “No visible signs of injury. No complaints. Mental impairment or incapacity – Nil apparent. Nil medical issue”. There is another entry at 12.10 pm relating to what was described as a disposal interview where Samed Eriklioglu was asked, “Are you satisfied with the way you have been treated by police during this investigation? – Yes”.
Defence
60 No evidence was called by Samed Eriklioglu on the voir dire.
Submissions as to circumstances of arrest
61 Mr Tehan contended that excessive and unnecessary force had been used in the arrest of the accused. It was not necessary, he argued, for Operator 125 to assist in the arrest at all and he should not have permitted his firearm to strike Samed Eriklioglu. Operator 125’s account as to helping to apply the plastic ties was fundamentally at odds with Operator 163’s version and should be rejected.
62 It was suggested that the accused could have been suffering from concussion after the arrest.
63 Section 138(1) of the Act was relied upon:
Discretion to exclude improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
64 S 462A of the Crimes Act 1958 (Vic) was also referred to:
A person may use such force not disproportionate to the objective as he believes on reasonable grounds to be necessary to prevent the commission, continuance or completion of an indictable offence or to effect or assist in effecting the lawful arrest of a person committing or suspected of committing any offence.
65 I have also had regard to s 3ZC(1) of the Crimes Act 1914 (Cth):
A person must not, in the course of arresting another person for an offence, use more force, or subject the other person to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the other person after the arrest.
66 The excessive force, it was submitted, rendered the arrest unlawful and improper. The admissions obtained after being unlawfully arrested rendered it undesirable to admit the evidence having regard to the competing public interests.
67 Mr Doyle submitted that the force used was not excessive and that there was no illegality or impropriety. In any event, the defence had not established any connection between the admissions made in the interview and any force used by SOG members. The possibility of concussion was not supported by the evidence.
Findings as to circumstances of arrest
68 There are two important points which I think help resolve the issue as to whether excessive force was used in the arrest. First, it was not suggested that the accused did not resist Operator 163 to some extent. On that basis, I cannot accept that it was excessive or unnecessary for Operator 125 to assist in the arrest. Some resistance required some restraint, and I do not think it unreasonable that Operator 125 calculated that he should assist in that restraint. Certainly there are differing accounts as how that assistance was provided, but on either version I am satisfied that what was done was proportionate to the circumstances confronting the arresting officers.
69 Second, it was not suggested that the gun striking the accused was not accidental. It may be that the accidental striking could have been avoided with greater care, but, in such a dynamic situation, incidents of this kind will naturally occur. I regard it as wholly speculative to suggest that the accused was possibly concussed.
70 Accordingly, I find that there is nothing about the circumstances in which the accused was struck with the gun, restrained in the course of the arrest, and sustained the marks or injuries subsequently noted, that suggest he was subject to such excessive force as to render the arrest unlawful or improper.
71 I am less inclined to accept that the reason the Use of Force Form did not disclose the striking of the accused with the gun was because it was accidental. If force is used, whether accidental or otherwise, one might expect that to be recorded in a form titled “Use of Force Form”. Nevertheless, the incident was documented in Operator 163’s statement and that version was not substantively challenged.
72 Accordingly, I am not satisfied that the manner in which the accused was arrested was improper or unlawful. It follows that the accused has not discharged the burden of demonstrating illegality or impropriety in relation to the arrest so as to engage s 138(1).
73 I will consider the issue of whether the circumstances of the arrest form part of the oppressive conduct said to engage s 84 of the Act, below.
PART B – EXCLUSION OF ALL OR MOST OF THE INTERVIEW
Section 84 – Exclusion of admissions influenced by violence and certain other conduct
74 In his written submissions of 18 December 2020, counsel for Samed Eriklioglu set out what is submitted are the “evidentiary gates” through which the interview must pass.[9]
[9] The submission mirrors the analysis undertaken in Em v The Queen (2007) 232 CLR 67 per Gleeson CJ and Heydon J at paragraph [27] and following.
75 The first is s 84:
(1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by—
(a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person; or
(b) a threat of conduct of that kind.
(2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced.
76 As I have indicated, the accused did not give or call evidence on the voir dire. He was not required to do so. The submission that an accused had to adduce evidence which positively established a causal nexus between the conduct proscribed by s 84 and the alleged admission was rejected in Habib v Nationwide News [2010] NSWCA 34.[10]
[10] At paragraphs [227–228].
77 In order to raise a s 84 issue “there must be some evidence that indicates through legitimate reasoning that there is a reasonable possibility an admission or its making were influenced by prescribed conduct”.[11] The prosecution say that in this instance Samed Eriklioglu has failed to discharge that burden.
[11] Habib at paragraph [234].
78 If I find however that there is a reasonable possibility that an admission was influenced by the proscribed conduct, I must then be satisfied that the relevant conduct did not influence the admission or its making.[12] To be clear, the onus in proving that the admission was not so influenced is on the Crown.
[12] Habib at paragraph [232].
79 Samed Eriklioglu contended:
… that striking the accused with the butt of a rifle such as to cause injury to his face and head, leaving him dressed in only his underwear and a ripped singlet combined with the “inaudible” responses at the start of questioning at the house and at AFP headquarters demonstrates at least a connected level of concern with the admissions made during interviewing. When that concern is taken with the impermissible nature of the questioning it is submitted that the conduct is oppressive.[13]
[13] Defence Submissions 18 December 2020 at paragraph [16].
80 “Oppression” in this case is therefore said to consist of what happened in the arrest, taken with the impermissible questioning during the interview.
81 With respect, I have found Hammill J’s analysis in R v Sumpton[14] of the meaning of oppressive conduct in s 84 particularly helpful. His Honour considered that an appropriate basis on which to consider what might constitute oppressive conduct can be summarised using the following dictionary definition:
“… [the] exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors etc.; the imposition of unreasonable or unjust burdens…”[15]
[14] [2014] NSWSC 1432 at paragraphs [120–129].
[15] Sumpton at paragraph [128].
82 I will utilise that definition in considering these submissions.
83 Turning to the circumstances of the arrest, I have already found that excessive force was not used. That said, the accused was clearly subjected to some force during the arrest which, at least to some degree, is likely to have been intimidating. It might be suggested for example that the circumstances of the arrest could have “softened up” the accused and rendered him more suggestible or pliable when answering questions during the record of interview.
84 With those sorts of concerns in mind I watched and listened to the interview with some care. In doing so, I was also conscious of the evidence that the accused had received some injury to his face and head, although that was not visible on the recording.
85 It is to be recalled that once back at the police station the accused was seen by Sergeant Yip, who observed a red mark on the left temple but did not receive any complaint or raise any concern. The accused was given water, went to the toilet and was provided with the opportunity to pray, which he did for a period in the order of 30 minutes, before the interview commenced.
86 As was observed in R v Pritchard,[16] the audio-visual recording of an interview adds a further dimension to the matters that the trial judge hearing an application of this kind should have regard. It enables a better appreciation of the atmosphere during the interview and allows for a first-hand assessment of the manner, tone and pace of the interview. The demeanour of the interviewers and the apparent effect of questions on the accused can be instructive. I should stress that watching the interview recording can by no means be determinative of the application, but it does, I think, enhance an understanding of the dynamic.
[16] [1991] 1 VR 84.
87 In considering whether there was a reasonable possibility that any admissions were influenced by oppressive conduct, it appeared to me that Samed Eriklioglu presented on the video as being quite well engaged with the process. He did not, to my untrained eye, appear to exhibit any signs that he was not fit to be interviewed or that he was adversely affected by an injury. He was asked at Q 60 how he felt and he responded “okay”. He answered “yes” when asked at Q 61 if he felt well enough to participate in the interview.
88 The accused appeared to listen intently, frequently nodding his head to indicate his understanding of information being conveyed and answered responsively and appropriately. For example, he was asked at Q 67:
Q Okay. Now, during this interview I’ll be talking to you about your brother, Ertunc ERIKLIOGLU, Hanifi HALIS and other persons you’re associated with. Also, we are going to ask you questions in relation to you and others intentionally making preparations for or planning a terrorist act. Before we commence my questions, is there anything you wish to say about these topics or about your involvement in preparations in – to conduct a terrorist act?
A I believe, um, I – I haven’t done anything like that.
89 He was softly spoken, calm and cooperative. His posture and body language appeared to be a little constrained or defensive, but perhaps understandably so given the seriousness of the allegations. The accused also seemed hesitant at times and was perhaps nervous. Again, that is understandable in the circumstances, and as the interview progressed he appeared to become more relaxed.
90 The atmosphere in which the interview seems to have been conducted was respectful. The tone, manner and pace of the questioning appeared to be appropriate and generally provided ample opportunity for Samed Eriklioglu to answer the questions put. In essence, I could not discern any way in which the accused’s capacity to do himself justice was compromised by his experience of the arrest.
91 It follows that I do not find that the circumstances of the arrest, in themselves, give rise to a reasonable possibility that the admissions in the interview, or their making, was influenced by oppressive conduct. To so conclude, however, is not to altogether dismiss the defence contentions relating to the circumstances of the arrest. The fact that the accused was subjected to force, albeit not unlawful force, before the interview, still needs to be taken into account when assessing the defence contentions concerning impermissible questioning.
Impermissible questioning
92 In Sumpton the defence argued that the questioning of the accused took a number of different themes which were impermissible. Some questions assumed guilt; others commented on the evidence; still others misrepresented the evidence or ridiculed the accused’s account and undermined his right to silence. Taken “globally” it was argued that the questioning was grossly improper and amounted to oppressive conduct for the purposes of s 84 of the Act.
93 I take Mr Tehan to adopt a similar tack in this application. The complaint he makes alleges that the police put matters to the accused without a proper evidentiary basis or misrepresented the evidence, were irrelevant, impermissibly cross-examined the accused in that the questioning was argumentative, cut off answers, rested on controversial assumptions, employed traps or inducements, conveyed the questioner’s disbelief and undermined the accused’s right to silence. That impermissible questioning, when taken with the circumstances of the arrest, amounted to oppressive conduct which the prosecution could not show did not influence the accused’s admissions or the making of those admissions in the interview.
94 Mr Tehan’s submission prompts the question: what might constitute impermissible questioning in these circumstances? The starting point is the Judges’ Rules which were framed or approved by English judges in 1912 to provide “…guidance of the police in their inquires”.[17] In McDermott Latham CJ stated:
It was further argued that at least there was a rule that persons in custody should not be "cross-examined." The authority for this contention was found in Rule 7 of what are known as the Judges' Rules 1912, which may be found in Archbold on Pleading, Evidence and Practice in Criminal Cases, 31st ed. (1943), p. 370; Phipson on Evidence, 8th ed. (1942), p. 251, and R. v. Jeffries (1946) 47 SR (NSW), at p 292 . Rule 7 is in the following terms: - "A prisoner making a voluntary statement must not be cross-examined, and no questions should be put to him about it except for the purpose of removing ambiguity in what he has actually said."[18]
[17] McDermott v The King (1948) 76 CLR 501 per Dixon J at paragraph [12].
[18] McDermott at paragraph [4].
95 Dixon J, as he then was, referred to the practice in England of excluding confessional statements if they had been obtained in an improper manner:
The abuse of the power of arrest by using the detention of an accused person as an occasion for securing from him evidence by admission is treated as an impropriety justifying the exclusion of the evidence. So is insistence upon questions or an attempt to break down or qualify the effect of an accused person's statement so far as it may be exculpatory.[19]
[19] McDermott at paragraph [12].
96 His Honour thought that the practice derived from the principle that no person should be required to incriminate themselves.[20] A judge in England at that time, in considering whether a confessional statement should be rejected in the exercise of discretion, would form a judgment about the propriety of the means by which the statement was obtained by “…reviewing all the circumstances and considering the fairness of the use made by the police of their position in relation to the accused.”[21]
[20] Nemo tenetur se ipsum accusare.
[21] McDermott at paragraph [14].
97 The Judges’ Rules were reflected in what used to be called the Chief Commissioner’s Standing Orders, which required police interrogators to “be scrupulously fair in interviewing any person”. Where a person was suspected of having committed a crime, police were required not to “endeavour to force any such person into making any admission of guilt, entrap or mislead any person or where such person makes a confession, attempt by further questioning to break down answers to which unfavourable replies have been received or to break down the will of such person”.[22]
[22] Extracted from Pritchard at 91.
98 The ruling of Smith J in R v Amad[23] was cited by both parties in argument and is apposite. His Honour stated:
It was argued on behalf of the Crown that what took place was not cross-examination in any relevant sense. But this contention, at least at one stage of the argument, was based upon what, in my opinion, is the erroneous view that for this purpose questioning is not cross-examination unless either it puts words in the accused's mouth or else it proceeds from a desire in the questioner to break down the accused's denials or extract damaging admissions from him. Even if the questioner is concerned only to find out the truth and has no preconceptions and no desires as to where it will be found to lie, and even if he refrains from putting any words at all into the accused's mouth, he is nevertheless cross-examining in the sense relevant to the matters here in question when he proceeds, as in this present case, to submit the person in custody to a searching questioning in which disbelief is repeatedly expressed in his denials of complicity, his account of his movements is challenged and checked, he is confronted with evidence of its falsity, he is accused explicitly of lying, and his refusal of further information is met with a statement that there are questions which the interrogator must ask him. A person in custody is, by that fact, ordinarily under great stress, and for that reason the law for his protection holds it to be improper to subject him, even after caution, to any form of cross-examination the tendency of which is in fact to extort admissions or to overcome his mental resistance to making admissions. There is no exception from this principle in favour of an interrogator whose desire is solely to find out the truth and not to obtain evidence for use against the accused. It is what the interrogator does and not his state of mind that is decisive.[24]
[23] [1962] VR 545.
[24] Amad at 548.
99 Smith J also referred to the dangers that arise from improper interrogations of that kind, where an accused person might well try to escape the pressures and anxieties of their position by resorting to false denials and inventions which impair their credit.[25]
[25] Amad at 548.
100 Both parties referred to a number of authorities that discussed what might, and what might not, constitute impermissible cross-examination by police in interviews. Those authorities included: R v O’Neill,[26] Pritchard, Kelly v the State of Western Australia,[27] R v Smith,[28] R v Demiri,[29] Higgins v R,[30] R v JF,[31] R v Bankowski,[32] Cleland v R[33] and R v Teys.[34] A further reference point was provided in the form of the judgment of Heydon J in Libke v The Queen (2007) 230 CLR 559 at 597 where improper trial cross-examination is discussed.
[26] (1998) 48 SASR 51.
[27] [2017] WASCA 221.
[28] [1964] VR 95.
[29] [2007] VSCA 170.
[30] [2007] NSWCCA 56.
[31] (2009) 237 FLR 142.
[32] (1971) 18 FLR 179.
[33] (1982) 151 CLR 1.
[34] (2001) 119 A Crim R 398.
101 Many of the cases referred to deal with the issue of impermissible cross-examination in the context of an application for discretionary exclusion under s 90 of the Act or its common-law predecessor. However, Hamill J’s decision in Sumpton demonstrates that it is possible that improper questioning, perhaps in combination with other factors, may amount to oppressive conduct for the purposes of s 84.
102 In argument, Mr Tehan focused particularly on the expressions of disbelief directed to the accused’s exculpatory answers, the inaccurate evidentiary basis for many questions, the fact that the interview was apparently conducted by Mr Maksoud for the underlying purpose of extracting admissions and the manner in which the conduct of the interview would likely impact on the accused’s decision as to whether to give evidence in his trial.[35]
[35] The reasoning in Pritchard was relied upon in respect of this last proposition.
103 Mr Doyle argued that there was no rule against cross-examination in police interviews. By reference to decisions such as O’Neill and Demiri it was clear that police may, and in many instances should, conduct thorough questioning where answers given by the accused are followed up and further probed and tested in a reasonable manner. As Gowans J recognised in R v Smith, police have a duty to ascertain the facts. Investigating police are not obliged to accept a suspect’s first answer and may persist in their questioning. It is a question of degree as to whether persistence has crossed a line so as to render use of the answers in evidence unfair.
104 Mr Doyle also referred to Miles CJ’s judgment in Teys where his Honour suggested that care should be taken not to apply the principle too broadly: “Questions which in a trial would be regarded as cross-examination are not necessarily regarded as improperly put by a police officer questioning a suspect.”[36]
[36] Teys at paragraph [54].
The manner of questioning
105 In dealing with the circumstances of the arrest and their effect on the accused, I made some observations as to the how the accused appeared to engage in the interview. I turn now to consider how the investigators appeared to conduct the questioning.
106 As indicated, I carefully watched the audio-visual recording of the interview, which cuts out Q 803 but resumes at Q 1041. I was also able to listen to the audio recording of the questioning between Qs 804 and 1040. To my observation, the manner in which the interview was conducted overall was appropriate. The way in which questions were asked did not appear to be aggressive or intimidatory. Both police officers’ demeanour appeared to me to be appropriate to the task. Their voices were calm and measured. The pace at which questions were put allowed the accused to consider and reflect on how he should answer.
107 Allowing for the fact that I have had very little opportunity to otherwise observe the accused speak or interact, police did not appear to put him under pressure nor did he show signs of distress when answering questions. The overall impression that I take from watching the video is that the accused’s capacity to do himself justice was not, in some obvious way, compromised simply by the manner in which he was questioned.
108 In forming that view, I am acutely conscious of what was said by their Honours in Pritchard to the effect that a non-aggressive questioning style cannot be decisive as to the exercise of the discretion, or, as in this case, to whether or not the accused was subjected to oppressive conduct.
Obviously, a polite but clever cross-examination may operate insidiously to induce unfairly the giving of incriminating answers.[37]
[37] Pritchard per Crockett, McGarvie and Beach JJ, at 92.
109 The defence contended that a “highly relevant factor in assessing the alleged impermissibility of the questioning” was Mr Maksoud’s purpose and motivation. Although at times the informant said his purpose in questioning the accused was to get the truth, he also said that his purpose was to “extract admissions”. It was put that this was an improper purpose and underpins the impermissible questions asked of the accused during the interview.
110 In response, the prosecution argued that Mr Maksoud’s comment to the effect that his purpose was to extract admissions was no more than a synonym for seeking the truth. If his purpose had been to extract false answers, false denials, or implausible answers, that would be improper; however, proper analysis of the interview reveals that there is no impropriety of that kind.
111 As to this issue I regard it as important to make clear that in my view a police officer conducting a record of interview with an accused person should not, and cannot, seek to “extract admissions”. Rather, the proper approach is encompassed by the Judges’ Rules, or their subsequent iterations, which require an interviewer to be “scrupulously fair” in providing the suspect every opportunity to comment upon the allegations and invite explanation of facts relied upon to support the allegations. The purpose in questioning a suspect is not to force or extract admissions, to intimidate, to subject the suspect to prolonged questioning, to hold out inducements, to mislead, to insist upon answers or to break down answers to which unfavourable replies have been received.
112 Mr Maksoud’s stated purpose of seeking to extract admissions from the accused is troubling to say the least. It reflects an approach that cannot be countenanced and indicates a significant gap in understanding and/or training with respect to the conduct of records of interview. However, as Smith J stated in Amad, “(i)t is what the interrogator does and not his state of mind that is decisive”.[38]
[38] Amad at 548.
113 It seems to me the conduct of the interview needs to be assessed against the nature of the prosecution case. Stripped to its essentials, the accused was recorded speaking with his co-accused and CO 309 and was being questioned in the interview as to what he meant and intended when he did so. There was a large amount of material, the detail of which was, at times, important.
114 For example, Samed Eriklioglu was confronted with the knowledge that Ali and John were police officers. His denial of a code for the discussion of the firearms was met with the production of the napkin setting out the code in clear detail. No doubt, having that evidence put to him would have been uncomfortable – just as it might be for a suspect in a sexual assault case to be confronted with the complainant’s account or CCTV footage of the assault – but Samed Eriklioglu’s response to the evidence to be relied on was important, and by its nature needed to be the subject of some pointed questioning.
115 The defence contention that the accused was subject to impermissible questioning is very much a question of degree. I did not discern, in my assessment of Mr Maksoud’s manner in questioning the accused, a desire to actually extort admissions or overcome the accused’s mental resistance. Although, as I will discuss below, there are points where the questioning is inappropriate or improper, overall it does not in my view reach anything like the sort of level dealt with by Smith J in Amad or by the Court of Criminal Appeal in Pritchard.
116 I accept the Crown submission that Mr Maksoud’s state of mind is better characterised as a desire to get to the truth. Again, as Smith J suggested in Amad, that kind of approach is appropriate.[39] I also accept that his state of mind is not particularly decisive. Rather, it is what he does that matters.
[39] Amad at 548.
117 As will be seen when I turn to a detailed examination of the interview, I do not regard the questioning to which Samed Eriklioglu was subjected as amounting to oppressive conduct, whether of itself or in combination with the circumstances of the arrest. Mindful of the dictionary meaning of oppressive conduct utilised by Hammil J in Sumpton, I do not believe that the conduct to which the accused was subject could be characterised in that way. It follows that I am not satisfied that s 84 is engaged and I would not exclude the interview on that basis.
118 The second evidentiary gate is s 85.
Section 85 – Criminal proceedings: reliability of admissions by accused
(1) This section applies only in a criminal proceeding and only to evidence of an admission made by an accused—
(a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence; or
(b) as a result of an act of another person who was, and who the accused knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the accused should be brought or should be continued.
(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account—
(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and
(b) if the admission was made in response to questioning—
(i) the nature of the questions and the manner in which they were put; and
(ii) the nature of any threat, promise or other inducement made to the person questioned.
119 As I understood Mr Tehan’s argument, it was contended that ss (3)(b)(i) & (ii) were very much engaged on this application. In addition, the circumstances of the arrest must be taken into account. The provision requires me to consider whether the truth of the admissions was adversely affected by those circumstances.
120 In considering that issue I am not concerned with the truth or untruth of the accused’s alleged admissions.[40] Rather, I am to examine whether the reliability of the alleged admissions may have been impaired as a result of the way in which they were obtained.[41]
[40] Section 189(3) of the Act.
[41] R v McNiven [2011] VSC 397; per Lasry J at paragraph [62].
121 Assuming the accused is able to point to circumstances which may adversely affect the truth of an admission, it will be for the prosecution to establish on the balance of probabilities that the truth of the admissions made were unlikely to have been affected by those circumstances.
122 Mr Tehan submitted that there were four ways in which the interviewing police sought to entrap or to offer inducements to Samed Eriklioglu to make admissions against interest.
123 First, it was argued that the police engaged in a type of questioning not unlike that which was disapproved in Palmer v The Queen,[42] and in so doing set a trap for the accused to make admissions. At Q 482 he was asked, “why would the government be suspicious of you because of your friendship with him (Yusuf)?” in the context of questioning as to the cancellation of his passport. Asking Samed Eriklioglu why the government would be suspicious of him was unfair or improper.
[42] (1998) 193 CLR 1.
124 Second, in the passage Qs 739 – 746 the accused is told that he might not be telling police the “full story” and that he needs to tell police “what the story is”.[43] thereafter the accused is confronted with information that his associates Ali and John are police officers. It was submitted that the manner in which this questioning proceeded was indicative of “an inducement to make admissions to the police supposing that the accused would have antipathy towards the police”.[44]
[43] I also deal with this passage in some detail in the context of "impermissible questioning".
[44] Defence submissions 19 November 2020 at paragraph [88].
125 Third, the police introduced the topic of the Bourke Street incident and the discussion about it at the dinner held on 12 November at the apartment of CO 309. It was submitted that the nature of the questioning engaged a trap wherein information was provided to the accused in the hope of gaining admissions as illustrated by Q 794: “(a)nd remembering there was a police member in the room with you, where you guys talking positively or negatively about it (the Bourke Street incident)?”
126 Fourth, the purpose of the cross examination used throughout the interview was to induce the accused into making admissions against interest. The persistence in doing so amounted to undue pressure which deprived the accused of a free choice as to whether to speak or remain silent.
127 Another alleged vice in the questioning was what was submitted was a persistent use of the phrase “do you recall….?” Prefacing questions in that way was objectionable because it denied the accused the opportunity of outright denial of the allegations.[45]
[45] See The Queen v Wills (1985) 39 SASR 35 per King CJ at 37.
128 Beyond those criticisms, Mr Tehan of course relied on the other matters which he says, in combination, amount to impermissible questioning and are further examined below. Those matters, he argued, were equally relevant to his application under s 85.
129 Mr Doyle submitted that the defence had not made clear how the truth of the admissions made by the accused may have been adversely affected. Proper analysis of the interview, he suggested, demonstrated that where the accused was provided with details of the evidence that tended to contradict his exculpatory explanations, he would qualify his answers. Those qualifications were likely to enhance, rather than diminish, the likelihood of his admissions being truthful.
130 One example used to illustrate this point related to Qs 827 – 828. In those answers the accused denied knowledge of the code to be used to describe the guns that were the subject of purchase. However, when he was shown a photo of the napkin recording the code, he indicated that he had seen the code and that it was written by a friend (Qs 829 – 855).
131 A further example relates to the accused’s answers concerning discussion at the dinner on 12 November 2018 about killing many people at Q 885 – 892. In further answers at Qs 875, 1022 – 1025 and 1105, he referred to a change of mind on the part of the group which impliedly asserted a previous intent to use the guns for a terrorist purpose. These answers/admissions were only made, it was contended, after the accused had been told that Ali and John were police officers and reminded of the pertinent topics of conversation discussed at the dinner. The provision of this information made it more likely that the answers/admissions were truthful, not less likely.
132 I do not find the submissions suggesting that the police employed traps or inducements in questioning Samed Erikloglu persuasive. In the circumstances of this investigation, it seems to me that it was appropriate for police to put matters such as the facts that the undercover operatives were police officers, that conversations had been recorded, and that real evidence such as the napkin was in the possession of investigators, to the accused to seek his response.
133 One of the main difficulties for the accused, it seems to me, is that he was being confronted with a formidable array of evidence that would be difficult for anyone in his position to deal with. In that sense he may well have felt under some pressure. However, I see that as a function of the nature of the case rather than any entrapment, inducement or impropriety. I do not find that the questioning was unduly persistent, that it was directed to breaking down the accused’s answers in some unacceptable way, or that it was otherwise likely to impair reliability.
134 Assuming that the accused’s conversation with ASIO – the subject of Qs 482 – 483 – is relevant, I do not think Q 482 and its answer suffer from the Palmer vice. The accused does not answer by referring to what the government thinks; rather he explains what he was told by ASIO. The potential problem of placing the accused in the position of having to explain what the government thinks of him does not materialize. In those circumstances it does not entrap the accused or otherwise work unfairly against him.
135 Although there are questions which are prefaced with the phrase “do you recall …” peppered throughout the interview, in most instances the questions implicitly allow for the possibility that the accused may not recall. When the accused does not remember he appears to say so rather than guess or speculate. He was also reminded explicitly that if did not remember to simply say so.[46] Further, I note that the critical events he was being questioned about occurred eight days or less before the interview. I do not believe that the “do you recall…” questions impaired reliability or otherwise worked unfairness.
[46] Qs 1056–1057
136 I should also emphasise as I indicated above, in considering these issues I have disregarded the issue of the truth or untruth of any admissions.[47] Whether or not the accused’s answers were truthful was not put in issue by the accused on the voir dire.
[47] Section 189(3).
137 In conclusion, I find that that the prosecution have shown that the circumstances in which the accused answered questions make it unlikely that the truth of any admissions made was adversely affected.
Discretions
138 If I was to find that the answers given in the interview were not rendered inadmissible by the operation of ss 84 or 85, it was argued that I should go on to consider s 90. However, having regard to what was said in Em to the effect that the discretion given by s 90 will be engaged only as a final or ‘safety net’ provision,[48] I think it is best to first consider ss 138 and 137.
[48] Em per Gummow and Hayne JJ at paragraph [109].
Section 138 – Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained—
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law—
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
139 I have previously found that there was no illegality or impropriety attaching to the circumstances of the arrest. It is not suggested that there was any illegality surrounding the circumstances of the interview. I am not persuaded that the interview was infected by an impropriety so as to justify its exclusion as a whole.
140 As will be seen below I do find that that there were some questions asked of the accused which were inappropriate, and which could be characterised as improper, and will be excluded. However, whilst acknowledging an overlap between these discretions, I see the basis of those exclusions as sitting more comfortably within ss 137 and s 90.
Section 137 – Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
141 In this provision, as in s 135, the ‘unfair prejudice’, which must be weighed against probative value, is concerned with the risk the jury will use the evidence improperly in some unfair way.[49] Often this arises if the evidence will attract more weight than is justified. As the defence point out it is not necessary to show that the evidence will be unfairly prejudicial but rather that there is a danger of unfair prejudice.
[49] The Queen v Bauer (2018) 266 CLR 56 at paragraph [73].
142 I regard the probative value of the interview, looked at as a whole, as being very high and I do not see a basis for the exclusion of the entire interview applying this provision. However, s 137 does have some work to do when the individual objections are considered below. For completeness, I do not see how the interview could be misleading or confusing which might otherwise provide a basis for exclusion under s 135 (b).
The Haddara discretion
143 In Haddara v The Queen (2014) 43 VR 53 the Court of Appeal held that the enactment of the Evidence Act 2008 did not preclude the application of the general common law discretion to ensure the fair trial of an accused by excluding evidence if its admission would be unfair to the accused.
144 In short, I am not satisfied that there is a basis to invoke that discretion here to exclude the interview.
Section 90 – Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if—
(a) the evidence is adduced by the prosecution; and
(b) having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence.
145 Having determined the interview to be admissible, I see the accused’s submissions as to impermissible questioning as primarily invoking this discretion. He bears the onus in doing so.
146 The origin of this provision was articulated in R v Lee[50] where it was said:
What is impropriety in police methods and what would be unfairness in admitting in evidence against an accused person a statement obtained by improper methods must depend upon the circumstances of each particular case, and no attempt should be made to define and thereby to limit the extent or the application of these conceptions.[51]
[50] (1950) 82 CLR 133.
[51] Per Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ at 151.
147 In essence, the matters canvassed above as bearing upon ss 84 & 85 are now relied upon to submit that it would be unfair to the accused to permit the interview to be adduced.
148 After setting out what the defence contend were the multiple problems in the questioning of the accused that comprise ‘impermissible questioning’ the defence submissions of 18 December 2020 state:
“This is why we say that in this case you cannot unscramble the egg and why this is a case where there cannot simply be the infrequent edit. Rather, it is a case where the whole of the interview should be excluded.”[52]
[52] At paragraph [22].
149 Having waded through the interview in some detail it is tempting to yield to the submission that the egg cannot be unscrambled. Analysing the interview carefully however, I am not persuaded that it should be wholly excluded because it would be unfair to the accused to admit the evidence. That is so for the reasons I have given in my consideration of ss 84 and 85 generally, and more specifically in consideration of the many objections raised by the defence as to individual questions or passages of questions below.
150 In conducting that analysis I had to be conscious of the inter-relationship between questions and the effect the questions asked of the accused had, or would have had, on his subjective state of mind. In that respect the following passage from Em is apposite:
The appellant's submissions depend to a considerable extent on whether the police conduct "conveyed" or "would have conveyed" any particular "message", on the effect on the appellant of any contrasts between the behaviour of the detectives on 24 April 2002 and their behaviour on 15 May 2002, and on the idea that the detectives "confirmed" the appellant's belief. In this respect the submissions face the difficulty that these are allegations going to the appellant's subjective mental state. All that can be concluded about that mental state depends on circumstantial inference. Here circumstantial inference falls well short of the best evidence, direct evidence from the appellant. The appellant's failure to give evidence on the voir dire thus increased his difficulties in discharging the onus of proof.[53]
[53] Per Gleeson CJ & Heydon JJ at paragraph [64].
151 On this application the accused faces similar difficulties. Watching and listening to the interview and examining the content of the questions and answers I could not draw the inference that overall he was particularly adversely effected or disadvantaged in responding to the allegations, such that it would be unfair to admit the interview. As I have previously observed he does look, at times, at least uncomfortable, but that is well explained by having to respond to the evidence with which he was confronted.
152 To my mind the accused has not shown that the interview was conducted in some hostile, overbearing, unduly persistent or confusing way or that he was subject to some unacceptable cross-examination so as to justify total exclusion. In essence, the questioning, generally, does not become so persistent or otherwise impermissible to cross the line that would render it unfair to use the evidence against the accused.
153 I am persuaded however that there are some specific questions and answers that should be excluded on the basis that, no matter their effect on the accused, it would be unfair to use them against him in his trial.
154 I attempt to explain my reasons for the individual exclusions below.
155 I will now turn to a detailed consideration of the questions asked in the interview, using the defence contentions as to impermissible questioning as the framework for that consideration.
PART C – THE INDIVIDUAL OBJECTIONS TO QUESTIONS OR PASSAGES OF QUESTIONS
Cautioning the accused
156 Initially, Samed Eriklioglu contended that part of the problem with the conduct of this interview was that the informant had failed to deliver a proper caution. In his further submissions of 18 December 2020, it was clarified that contention was no longer pressed. However, the accused maintained that his “…state at the time of the delivery and repeating of the caution remain(ed) a relevant consideration”.[54]
[54] See footnote 4, page 3 of Defence Submissions 18 December 2020.
157 In those circumstances I think it is prudent to examine the issues associated with the cautioning of the accused during the interview.
158 Samed Eriklioglu’s recorded interview commenced at 3:34 am on Tuesday 20 November 2018 when he was approached by Federal Agent Maksoud as I have described above. He was told that he was under arrest for planning a terrorist act and cautioned in the following terms:
Q1. We’re just going to do this now, Samed. All right. Now, I’m here with Samed ERIKLIOGLU. Now, Samed I’m just letting you know that you’re under arrest and the reason why you’re under arrest is for planning a terrorist act.
A What?
Q2. Now, Samed, I have to tell you that you don’t have to say or do anything and that anything that you say or do can be used in evidence. Do you understand that caution?
A Yeah.
Q3. All right. Can you tell me in your own words what that caution means?
A (No audible reply)
Q4. Samed?
A Not – I’m not sure.
Q5. You’re not sure.
A No.
Q6. Okay. So, you don’t have to say – I’ll just say it again. I must caution you that you don’t have to say or do anything but anything you do or say can or may be used in evidence. All right. So, do you understand that?
A Yeah.
Q7. Can you tell me in your own words what that means?
A (No audible reply)
Q8. So, you don’t have to say anything to me. You don’t have to do anything. All right. I just want to make sure that you understand this. All right. You don’t have to say or do anything. So, can you tell me what – what I’m telling you now? As in what you understand that to mean?
A So, I don’t have to say anything and - - -
Q9. Yep. And you don’t have to do anything.
A I don’t have to do anything.
Q10. All right. I just want to make sure you understand that….
159 He was then given his rights pursuant to s 23G of the Crimes Act 1914 (Cth), which he declined. The interview was then suspended and resumed at 5:27 am at the AFP’s Melbourne office after the accused was given an opportunity to pray. Once the interview recommenced Mr Maksoud again informed the accused that he was to be interviewed in respect of planning a terrorist act and cautioned him in the following terms:
But before I do I must caution you. I must caution you don’t have – that you do not have to say or do anything but anything that you say or do may be used in evidence. Do you understand that?
A Yes.
Q23. Tell me in your own words what you mean this caution – what you understand from this caution.
A Just the caution so, um – evidence, so, um - - -
Q24. All right. So, I’m going to – I’ll break it down for you. Okay. I caution you - - -
A Yep.
Q25. - - - that you don’t have to say or do anything.
A Okay.
Q26. So, any questions I ask you, you don’t have to say anything.
A Okay.
Q27. So, can you tell me you understand what that means?
A Okay. So, I – I don’t have to say anything. I can give, “Yes,” or, “No,” answer.
Q28. Or you can say nothing at all.
A Mm, mm.
Q29. Okay.
A Yeah.
Q30. I just want to make sure you understand what you rights are here. So, you don’t have to say anything or do anything. Can you explain what that means? Or what you understand that to mean?
A So, when you question me I don’t have to actually say anything or I don’t have to do anything. Or I can – or I can say, “Yes,” or, “No.”
Q31. Yes.
A Yeah.
Q32. Or you can say nothing at all.
A Nothing, yeah.
Q33. Okay. It’s just very important you understand what the caution is because I’m going to be asking you questions and you need to be able to understand this caution, that you don’t have to say or do anything. All right.
A Yeah.
Q34. Are you confident that you know what the caution is and what – what I’m asking – what I’m cautioning you about?
A Yes.
Q35. Okay. The caution also applies to any questions that Detective Senior Constable MORRISON may ask you. Okay. So, anything you’re asked from either myself or Detective Senior Constable MORRISON, it’s up to you whether you want to answer or not…..
160 Samed Eriklioglu was then again told that he could contact a friend or relative and communicate with a legal practitioner. When asked about communicating with a legal practitioner the following exchange ensued:
Q39. Okay. Do you want to tell me what that means?
A So, I can get a lawyer and, ah, if I want.
Q40. Yes. And it will be free, you can ask them any questions. Is that something that you wish to do?
A No.
161 Questioning proceeded until 7:01 am at Q 630. The interview resumed at 7:19 am after which Samed Eriklioglu was cautioned again and asked “do you clearly understand that” to which he responded that he did.
162 At 8:36 am, at Q 1040, the interview was suspended to enable an application for an extension of time for questioning in custody. During this suspension Samed Eriklioglu spoke to his father on the phone.
163 The interview was recommenced at 10:32 am and at Q 1041 the accused was reminded of the caution again and was asked, “Do you clearly understand that?” He responded that he did. The interview concluded at 11:02 am.
164 Mr Tehan contended initially that Samed Eriklioglu had not been properly cautioned because, whilst he was told that he did not have to say anything, it was not made clear to him that if he chose to say anything it would be used in evidence against him. “The process of having the accused explain what the caution means was limited to the understanding that he could either answer questions or say nothing at all.”[55]
[55] Defence submissions 19 November 2020, paragraph [16].
165 Reference was made to s 139(1) of the Act which is in the following terms:
Cautioning of persons
(1) For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if—
(a) the person was under arrest for an offence at the time; and
(b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person; and
(c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.
166 It was submitted that, whilst the full caution was given and repeated at times during the interview, it was reasonably open to infer that the accused may not have appreciated its full effect given the earlier failures to properly explain the implications of choosing to answer questions.
167 In oral argument Mr Tehan ultimately disavowed reliance on this argument in terms to which I have already referred.[56] If I might say, I think that concession was appropriate.
[56] Transcript of pre-trial hearing 7 December 2020, page 833.
168 As I have indicated, part of the visual recording of the interview failed and cuts out after Q 803. However, it is particularly evident in watching the recording that some considerable care and patience was taken by the informant in administering the caution. It may have been prudent to further explain that anything said could be used in evidence, but that criticism falls a long way short of engaging s 139(1) of the Act.
169 The relevance of the force used in the arrest and the inadequacy of the explanation of the caution, it was submitted, were important in considering the later exhortations put to the accused during the interview to the effect that he should “tell the truth” and needed “to tell his side of the story”. I deal with those submissions below.
Asking irrelevant questions
170 It was submitted that there were two areas where questioning during the interview dealt with matters irrelevant to the fact in issue at trial.
171 The first related to Qs 458 – 464, which asked the accused how he felt about voting. He said that it was against his religion to do so.
172 The second irrelevant topic of questioning related to whether the accused would fight with the Australian Army. Samed Eriklioglu indicated that he would not, because “we only fight for the sake of the creator”. Those questions and answers appear at Qs 518 – 524 of the interview.
173 It was submitted that the accused’s opinion as to whether his religion permits him to vote or to fight in the Australian Army could not rationally affect judgment upon a fact in issue in the trial.
174 In response, the Crown submitted that this questioning was relevant in that it confirmed the accused’s belief in religious fundamentalism and is consistent with an attitude that he is sympathetic to violent jihad. It was an important part of the Crown case that the accused was willing to fight in the name of Allah.
175 In my view the questions are relevant. Section 55 of the Act provides for a relatively low threshold for justifying relevance. In seeking to prove that the accused was conspiring to commit acts in preparation for a terrorist act, it is necessary for the prosecution to show that the action or threat of action to be done or threatened, was carried out with the intention of advancing a political, religious, or ideological cause. Here, the religious or ideological cause particularised is “the advancement of Islam through violence”. The ideological or religious justification for the terrorist act that must be proved necessarily requires scrutiny of the attitudes and beliefs of the accused.
176 The two areas identified in argument do not directly prove an adherence to a belief in advancing Islam through violence, however, the answers given are in my view probative of a set of beliefs or attitudes that would likely be present if a person did seek to pursue violent jihad. That seems to me sufficient to meet the test in s 55. The impugned passages are therefore admissible.
Asking questions without using the primary evidence of the allegations
177 As will be seen below, a consistent complaint made by the accused about the conduct of the interview is that investigators put material to him which was inaccurate in important respects. The informant, I accept, was not himself aware of those inaccuracies. At no time were the recordings of the conversations actually played to the accused. It is said that worked on unfairness to him because he was never given the opportunity to comment on what would actually be presented before the jury as evidence.
274 Although the comment is not attributed directly to the accused it was, according to the undercover operative, at least said in his presence. That seems to me to be an adequate evidential basis for the allegation, for which it was appropriate to seek a comment from the accused. Those questions will not be excluded.
Questions 865 – 866
275 It is put that these questions improperly cross-examine the accused. Certainly, on transcript the questions are propositional and assertive. However, on listening to the audio, the questions are put calmly and understandably probe the accused’s stance that he had been talking about getting a Turkish passport and travelling to Turkey. The follow up questions at Q 867 and Q 868 are open and provide every opportunity to provide an explanation. I am not persuaded that these questions are either unfair or create a danger of unfair prejudice.
276 It is also important to observe that the jury will listen to this recording at the time it is introduced into evidence. They would, in the ordinary course, be warned that the evidence is the recording and that any transcript is provided merely as an aid and cannot in any way substitute for the primary evidence.
Question 870
277 This question asserts two propositions. Whilst it is technically objectionable, as the prosecution pointed out, the accused had accepted that he had referred to body armour and discussed killing many people. His denial that it wasn’t true, and that, as he explains in the following question, he wouldn’t “do that stuff” is probative. No unfair prejudice or other unfairness arises by the admission of this question.
Question 875
278 It was suggested this was a compound question. That is not so. The accused is asked, “So, can we agree that talking about all this – we’re not really talking about hunting are we? We’re talk…” Only one proposition is put. The question is admissible.
Question 882
279 This question is objected to on the basis that it is a compound question containing a number of different propositions, namely that the accused discussed getting guns, body armour, and killing as many people as possible. In the final part of the question the informant asks, “was that about hunting or was that about committing or planning a terrorist attack?”
280 In my view the question is admissible. Although the first part of the question appears to be a compound question, read in context the questioner has “piggybacked” matters that the accused has previously agreed he discussed. It is essentially foundational.
281 To paraphrase the questioner: “these are the topics you discussed – was that about hunting, or was that about committing a terrorist act?” Understood in that way, the question was not improper or inappropriate.
282 Moreover, the audio recording of this question reveals that the tone, manner, and pace of the questioning continues in the same measured way.
Question 886
283 It was suggested that this question was argumentative. Again, listening to the audio recording, the word “Samed” does not sound like it is put back to the accused in some argumentative, overly assertive way or in any other way which is calculated to compromise his ability to do himself justice. I do not consider that this part of the exchange was likely to pressure the accused unduly or treat him unfairly.
Question 888
284 At Q 888 the informant puts to the accused, “you said ‘we will tell John we were going hunting’”. This question is objected to on the basis that it does not have an accurate evidentiary basis. When the question is understood as paraphrasing what the accused and co-accused were going to tell John as to why they wanted guns, no unfairness arises.
Questions 889 – 892
285 This is an important passage where the informant puts to the accused what the prosecution now say was his real intention in seeking to acquire a firearm.
Q888. You said, “We will tell John we were going hunting.”
A Yeah.
Q889. But everyone else there knew what the real intention was. Knew what we were really talking about.
A Yeah, but I just – they can’t – like, no one can know the intention, you know. As – as we cancelled it and that’s it, like.
Q890. Your intention at that time?
A Yeah, but many – there’s many Muslims have, like, that intention, like, that doesn’t mean that’s their intention, you know? Like, I don’t know – yeah.
Q891. I put it to you that at that time when you were discussing all that that I’ve talked about you were talking about an attack with guns, killing as many people as possible. Am I wrong?
A Could – could be right, yeah. That’s right.
Q892. I could be right?
A Yeah.
286 It was submitted on behalf of Samed Eriklioglu that the questions were argumentative, conveyed disbelief, and that Q 891 was a compound question.
287 Clearly, the phrasing of some of these questions is not what might be called “courtroom perfect”. For example, a question prefaced with the phrase “(b)ut everyone else knew what the real intention was…” would be unlikely to survive objection in court. On the other hand, there is nothing about the questions that appears to cause confusion or misleads. Nor is there anything about the questioning which appears to be harassing or convey scorn.
288 In coming to those conclusions, my assessment of this argument has again been very much informed by the audio of the recorded interview. The tone, manner, and pace of this passage is appropriate, and the accused appears to be given more than sufficient opportunity to consider and respond. Once the audio of the interview is taken into account, I am well satisfied that this questioning was not unfair, and that the criticism that it is argumentative or conveyed disbelief in an unacceptable way is not made out.
289 For completeness, I should say that I do not accept that Q 891 is a compound question. One allegation is ultimately put to the accused, namely, that the discussion was about an attack. If there was any ambiguity in the answer to the question it was clarified by Q 892.
Question 900
290 At Q 900 the accused was asked, “did you say you wanted an AK-47?” It was contended that there was an insufficient or inaccurate evidential foundation for this question.
291 On the evening of Wednesday 14 November 2018, CO 309 went to Ertunc Eriklioglu’s house to pray. Hanifi Halis was present and the accused also attended shortly afterwards. The undercover operative covertly recorded the conversation between them. The transcript of that recording does not suggest that the accused mentioned an AK-47.
292 However, the undercover operative’s summary of the discussion recorded immediately afterwards states that during the conversation in the garage, Samed Eriklioglu “asked if he could get an AK-47”.[65] on the likely assumption that the witness will give evidence in accordance with his notes, there is a clear evidential basis for this question. It will not be excluded.
[65] UCO transcript 14 November 2018, page 81.
Question 904
293 In this question it was put to the accused that there was a plan to get a truck, force their way into a camp, and that the accused suggested they should put uniforms on. This is objected to on the basis that there is an inaccurate evidentiary foundation and it is a compound question.
294 In my view there is a sufficient evidential foundation for this question. The covert operative’s summary sets out what was discussed about this plan at page 83 of the transcript. Although the transcript of the conversation itself contains many inaudible sections, the accused is recorded as saying, “wear the uniform” at page 54. This appears to be the relevant part of the discussion which is explained in the undercover operative’s summary.
295 Although the question contains a number of propositions, in context the accused was being asked whether or not there was discussion about a plan, the content of which was identified. The accused appeared to have no difficulty in understanding the questioning and answering responsively. The question will not be excluded.
Question 942
296 It is contended that Q 942 rests on a controversial assumption that renders it objectionable. Mr Maksoud stated, “I understand later on you changed your intention that you didn’t even want the gun because you didn’t want to do anything.” (Emphasis added).
297 On one view, the question assumes that at one stage, before he changed his intention, he had wanted to do something. It seems to me however that the question picks up on the answers given by the accused at Qs 930 and 931 where the accused had already indicated that his intentions had changed.
298 Further, it is clear that the questioner wants to deal with the subject matter in sequence. The conversation as to hiding the guns occurred on 14 November 2018 before the accused decided not to go through with the purchase of the gun. Hence the questioner says, “I understand later on you changed your intention…” and attempts to redirect the accused back to the 14 November discussion about hiding guns. Indeed, the informant says at question 944 “… we’ll get to that, we’ll get to that…”, referring to when the accused changed his intention. In my view there is nothing wrong with keeping the questioning on track in the manner that the police officer did on this occasion.
Question 945
299 This question is objected to, also on the basis that it is a compound question and is argumentative. The questioner briefly summarises an aspect of the evidence and then asks the accused a question arising from that summary, namely whether he helped Hanifi Halis give dawah to John.
300 It seems to me that the first part of the question is a comment to which the accused is not given much opportunity to respond. In context, the informant’s comment is irrelevant and should be excluded. To be clear, the words “And you discussed making sure that John didn’t know the real reason for the guns but you were going to Dawah to John or Hanifi was” should be excised. The balance of the question and the answer should remain.
Questions 946 – 956
Q946. Okay. All right. Then after that when you were leaving did you and Hanifi discuss what the best time to do it would be?
A (No audible reply)
Q947. I think you said, “After Fajr is good.” Do you remember that?
A Yeah. Yeah.
Q948. Tell me about that conversation.
A I think I just said, “After – after Fajr,” yeah, “Would be good.”
Q949. And what did Hanifi say?
A I don’t know what he said. Nothing.
Q950. Okay. You don’t remember?
A Might have agreed. I don’t know – I don’t know.
Q951. Might have agreed?
A Might have.
Q952. And then did you talk about where you were going to do it?
A Um, we might have.
Q953. Yeah. Where was that?
A Can’t remember. Is it – is it over there?
Q954. I’m seeing if you – if you remember.
A We just said many places, I think, I’m not sure.
Q955. You said many places?
A Like as in we might have said many.
Q956. Yeah. Do you remember any of those places?
A Nah, I can’t. Not exactly.
301 The questioning in this passage raises an issue upon which the accused placed some reliance. It was submitted that the interviewing officers failed to put a number of key allegations to the accused during the interview. In particular, they failed to put the specific allegation that at the end of the conversation of 14 November 2018, he had said that the attack should take place in a “main area” and agreed that could be in the city.[66] It is also understood that CO 309 will give evidence that at the time this conversation took place the accused pointed towards the city.
[66] UCO transcript 14 November 2018, page 79.
302 This is important, it was contended, because the terrorist act particularised on the Indictment is “… an attack on members of the public with a firearm in a well-populated area of the city of Melbourne” and the allegation constitutes a fundamental part of the Crown case. In his oral evidence Mr Maksoud said that he forgot to ask this during the interview.
303 In addition, it was submitted that the police failed to ask any questions about what plans they had to attack members of the public. For example, how any attack was to be carried out, what planning they had carried out, and specifically who would carry out the attack. These failures, it was contended, resulted in a fundamental unfairness to the accused in that he was not given an opportunity to respond to such crucial allegations. The failure to put those matters should also be seen as a reckless impropriety on the part of investigators.
304 The effect of this failure, it was further argued, impacts upon the accused’s choice as to whether to give evidence. He was not given an opportunity to deny or respond to a fundamental part of the Crown case and therefore it was said that the accused “almost inevitably has to give evidence”.[67]
[67] Defence Submissions 19 November 2020 at paragraph [82].
305 In response, the prosecution submitted that the accused was questioned about the fundamental allegations comprising the Crown case during the course of the interview. The prosecution did not need to prove that the accused had settled upon the specifics of their plan to commit a terrorist act. Where and when an attack was to take place was apparently at an early stage of planning. Omitting some details from the questioning does not render it unfair, nor, it was submitted, does it mean that the accused inevitably has to give evidence.
306 I am not persuaded that the failure to put the allegation that Samed Eriklioglu said the attack should occur in “a main area”, and indicated or agreed that should be the city, amounts to fundamental unfairness that should result in the exclusion of the interview, or indeed the exclusion of this passage of questions.
307 The accused could be in no doubt that he was being questioned in relation to an allegation that he had been involved in making preparations for or planning a terrorist act. He was specifically told so at the outset. Myriad specific allegations were put to him that touch upon or underlie that allegation. Over the lengthy questioning that took place the accused had ample opportunity to make his position clear. I do not see how the failure to put this allegation unfairly compromises his position at trial.
308 Certainly, this particular allegation is more important than many of those that were actually put, and, in that sense, it would have been better if police had sought the accused’s response to it. However, the explanation for not doing so was that the police officer forgot. There is no evidence that this was some sort of deliberate tactic on the part of investigators and I am not persuaded that not putting this allegation amounted to a reckless impropriety. Nor am I satisfied that it would be unfair to admit the evidence. Accordingly, this passage of questioning will not be excluded.
Question 1011
309 At Q 1101 Mr Maksoud suggested to the accused that he had said that although Hanifi Halis was going to pay the money, the deposit (for the purchase of the gun) was for all three accused. It was contended that according to the transcript, Samed did not say these words and there was therefore an inaccurate evidentiary basis for the question.
310 At pages 134–139 of the UCO transcript of 17 November 2018, CO Ali and CO John summarise the conversation they have just had with the accused. At page 135, Ali states:
I THEN ENQUIRED IF THEY ALL PUT MONEY TOGETHER, TO WHICH SAMED SAID THAT HANIFI CAME UP WITH THE MONEY HIMSELF, HOWEVER, THEY WOULD ALL USE THE GUN TO TRAIN.
311 On the assumption that CO 309 will give evidence in accordance with his summary, the difference between the puttage and the evidence to be adduced is marginal and, in my view, there was a sufficient evidential basis to put Q 1011. It will not be excluded.
Question 1026
312 At Q 1026 Mr Morrison asked the accused, “so, before you changed your mind your plan was to kill people with the gun?” It was contended that this question rested on a controversial assumption, namely that the accused wanted to kill as many people as possible.
313 In my view this question was appropriately put. It constitutes an important part of the prosecution case and the accused’s answer is responsive and probative. The question is not unfair and it will not be excluded.
Questions 1029 – 1039
314 In two parts of this passage it is contended that the police engaged in argumentative questioning which was improper. Listening carefully to this passage on the audio recording, it does not strike me as being particularly argumentative. Essentially, the questions point to particular problems with the accused’s exculpatory account and invite a response.
315 The first relates to the accused’s assertion that he has done no action – in context it is not unduly argumentative to point out that paying a deposit for a gun is an action.
316 In arriving at that conclusion I am conscious that what might be impermissible can very much be a question of degree. As the authorities show, the police do not have to lamely accept the accused’s answers. They may ask follow-up questions which reasonably probe the accused’s position. Here, the extent to which the accused’s answers are tested seems to me to be within reasonable bounds.
317 In the second part, the accused is asked these two questions at Q 1038 and Q 1039.
MORRISON:
Q1038. But the other purpose was to use it in a way that you say now you believe not to be right?
A Yeah. It’s – it’s just, you know, yeah. Anyone can say something and it’s just, you know, innocent ones.
But not – not - - -
MAKSOUD:
Q1039. But not everyone commits to paying money to do it.
A Even then they – they might, you know.
318 The accused asserts that anyone can say something, referring to the possibility of using the gun for something other than hunting. I do not think the exchange is unduly argumentative. That said, in context, Q 1039 does seem to come across as more of a comment expressing scepticism rather than a genuine question. On that basis Q 1039 should be excised from the interview but Q 1038 and the balance of other questions remain admissible.
Interview suspension
319 I interpolate at this point that the record of interview was suspended at 8:36 am for the stated purpose of seeking permission from a magistrate to extend the time within which the accused may be interviewed. The recording recommences at 10:32 am and a visual recording of this last section of the interview is available. I have also watched that recording.
320 When the interview recommences, the accused was again cautioned and Mr Maksoud confirmed that he had used the toilet, that he was permitted to call his father and speak to him, and that he had something to eat. At Q 1042 Mr Maksoud further confirms that “we sought an extension and you spoke to the magistrate who has granted the extension”.
Questions 1064 – 1070
321 The passage at Qs 1064 – 1070 was objected to on the basis that it was argumentative and employed controversial assumptions. The issue of body armour and killing a lot of people were matters covered in earlier questioning, with which the accused had agreed. Watching the visual recording confirms that the manner of questioning was not inappropriate.
322 Question 1068 – “Do you normally joke about killing people?” – however, purports to pick up on the answer given by the accused at Q 1065, where he described a specific conversation about killing people as having been for a laugh. In my view, Q 1068 takes the questioning a step further which in context is unwarranted, argumentative, and does tend to convey undue cynicism. Even though the manner in which the question was asked appears to be inoffensive, the question is nonetheless capable of working an unfairness to the accused and I would exclude it.
323 Some concern also arises with respect to the statement in inverted commas in Q 1070 that the accused had said, “we were serious but then we changed our mind…”. I may be mistaken, but I cannot find a reference to the accused earlier saying, “we were serious”. I take it that the questioner was paraphrasing the accused’s position from earlier answers rather than asserting that that was what was literally said. Understood in that way, the question is admissible.
Question 1073
324 At Q 1073 Mr Maksoud puts to the accused that “… If that was your intention, the intention went on – you know, it’s a very long joke…”. It was contended that that question was argumentative and conveyed disbelief.
325 Although the visual recording shows that the manner in which this question was put was appropriate and there may be nothing intrinsically wrong with the police officer pointing out the problem with the accused’s explanation, on balance I think Q 1073 should be excluded. The assertion that it is ‘a very long joke’ comes across as more of a comment than a question and unnecessarily conveys disbelief. The probative value of the answer is outweighed by the danger of unfair prejudice.
Question 1074
326 Q 1074 is a composite question asked by Mr Morrison that wraps together many of the allegations constituting the prosecution case. The questioner puts to the accused that the accused has been saying that this was a joke, and in essence says: “here are all the things that you have said; are you able to clarify that?”
327 Save for one phrase, in my view, the question is admissible. It ultimately provides the accused with an open-ended opportunity to comment on the substance of the prosecution case and his earlier explanation that what had been discussed had been a joke. The visual recording shows that the question was again put in an appropriate manner.
328 However, towards the end of the question Mr Morrison states: “I’m just trying to understand, because that doesn’t make sense with what you’re saying.” The phrase in italics moves the questioner’s position from seeking to understand, to asserting that the accused doesn’t make sense. It seems to me that is a comment which impermissibly conveys disbelief and should be excised. The balance of the question is not unfair and is admissible.
Question 1075
329 This question is objected to on the basis that it rests on controversial assumptions and employs a trap and/or inducement. The question suggests that the allegation here is that the accused was excited by what happened in Bourke Street and was going to purchase firearms and do the same thing.
330 In my view the question simply summarises the Crown case. Although the question appears to be assertive on transcript – “that’s what is being alleged here” – the visual recording suggests that the question is more in the nature of clarification than improper cross-examination. Moreover, the final form of the question is open and provides ample opportunity to address all or any of the matters mentioned. I do not see the question as employing some impermissible trap or inducement. The question is not unfair and is admissible.
Questions 1078 – 1080
331 In Q 1078 it was put to the accused that he had previously said that most of the reason he wanted to obtain a firearm was related to hunting, but that part of the reason was to do something like the Bourke Street attack. That question and the following two questions are objected to on the basis that they rest on controversial assumptions, employ a trap and/or inducement and are argumentative.
332 Having regard to the answers given by the accused at Qs 885 and 1022 – 1027, there was a proper foundation for Q 1078. It does not seem to be otherwise inappropriate or improper.
333 At Q 1079 the accused was asked, “so you’re saying you normally joke about killing innocent people?” Like Q 1068, it seems to me this question goes too far. It is improper in that it alleges that the accused normally jokes about killing innocent people, when in fact the accused had described the specific discussions the subject of the allegations as a joke. Q 1079 should be excluded.
334 Similarly, Q 1080, where Mr Maksoud asks, “do you understand some of the answers you’re giving don’t make a lot of sense?” is inappropriate because it comments pejoratively on the accused’s position without seeking any further information from him. That question should also be excluded.
Questions 1105 and 1108
335 Q 1105 is objected to on the basis that it is in the nature of an interrogation of the accused. The question should be understood as following Q 1104 where the accused was asked about what happened in an Arabic class, and what changed his mind. Q 1105 clarifies that he is being asked about what changed his mind in relation to killing many people. The visual recording makes it clear that that is the purpose of Q 1105. It is in the nature of following up and clarifying what was previously asked. The accused previously stated a number of times that he changed his mind. This questioning seeks to ask the accused why that was so. I do not see it as unfair, or that it gives rise to a danger of unfair prejudice that would outweigh its probative value.
336 Q 1108 is prefaced with the following comment: “what-you know, you’re saying it was a joke. I-I find it hard to believe it was just a joke. But…”. That comment is clearly inappropriate and should not be placed before the jury. It should be excluded. The balance of the question however provides further clarification as to the change of mind which has been the topic of the previous questions. It is not particularly argumentative, as the visual recording shows. The accused answers the question responsively and does not appear to be confused or to misunderstand. It seems to me that the question was not unfair or inappropriate and is admissible.
Conclusion
337 In conclusion, I rule that the record of interview with the accused Samed Eriklioglu is admissible.
338 I further rule however, that some questions and answers identified in Part C of this ruling should be excluded in the exercise of my discretion. Those questions are Qs 674 – 685, 708 – 710, 724, 725, 732 – 737, 739, 740, 744, 746, 777 (in part), 804, 816 (in part), 945 (in part), 1039, 1068, 1073, 1074 (in part), 1079, and 1080.
339 I am conscious that the excision of some questions and answers has the potential to lead to distortion of the context of questions and answers which remain admissible. In the absence of agreement as to the editing of the interview, I will grant leave to either party to raise any such issue for further argument.
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