R v Abbas, Chaarani & Mohamed (Rulings 1-40)
[2019] VSC 855
•24 August 2018
IN THE SUPREME COURT OF VICTORIA
Not Restricted
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0177
S CR 2017 0176
S CR 2018 0175
THE QUEEN
v
HAMZA ABBAS,
ABDULLAH CHAARANI,
AHMED MOHAMED
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JUDGE:
Beale J
WHERE HELD:
Melbourne
DATE OF HEARING:
16 July; 17 July; 18 July; 23 July; 24 July; 27 July; 30 July; 31 July; 2 August; 6 August; 7 August; 8 August; 9 August; 10 August; 13 August; 14 August; 15 August; 17 August; 20 August; and 24 August 2018
DATE OF RULINGS:
17 August 2018 and 24 August 2018
CASE MAY BE CITED AS:
R v Abbas, Chaarani & Mohamed (Rulings 1–40)
MEDIUM NEUTRAL CITATION:
[2019] VSC 855
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RULING 1 – Application by accused to exclude all nine Islamic State videos – None of the videos were accessed by D1 – Only some of the videos were accessed by D2, D3 and D4 – Evidence Act 2008, ss 55, 56, 97, 137.
RULING 2 – Application by accused to exclude the video titled “Child soldiers executing and beheading 5 Kurdish fighters” or parts thereof – Evidence Act 2008, ss 55, 56, 137.
RULING 3 – Application by accused to exclude video titled “Battlefield dead and suicide attacks” or parts thereof – Evidence Act 2008, ss 55, 56, 137.
RULING 4 – Application by accused to exclude video titled “IS 2 ” or parts thereof – Evidence Act 2008, ss 55, 56, 137.
RULING 5 – Application by accused to exclude video titled “A second message to America” or parts thereof – Evidence Act 2008, ss 55, 56, 137.
RULING 6 – Application by accused to exclude video titled “Kill the helpers of the Devil” or parts thereof – Evidence Act 2008, ss 55, 56, 137.
RULING 7 – Application by accused to exclude video titled “address by Musa Cerantonio – The Filth of Nationalism” – Evidence Act 2008, ss 55, 56, 137.
RULING 8 – Application by accused to exclude the video “Flames of War 2” or parts thereof – Evidence Act 2008, ss 55, 56, 137.
RULING 9 – Application to exclude the video “remote 6fb” or parts thereof – Evidence Act 2008, ss 55, 56, 137.
RULING 10 – Application to exclude the video “You must fight them O Muwahhid” or parts thereof – Evidence Act 2008, ss 55, 56, 137.
RULING 11 – Application by D1 & D2 to exclude evidence of the titles of 24 YouTube videos allegedly accessed by D1, D3 & D4 – Evidence Act 2008, ss 55, 56, 137.
RULING 12 – Application by accused to exclude descriptions of redacted portions of IS videos the subject of Rulings 1 to 10 – Evidence Act 2008, ss 55, 56, 137 – Elomar v R [2014] NSWCCA 303.
RULING 13 – Application by D2 & D3 to exclude intermittent untranslated Arabic audio and script in nine videos the subject of Ruling 1 – Evidence Act 2008, ss 55, 56, 137.
RULING 14 – Application by accused to exclude images and screenshots found on accused’s devices – Evidence Act 2008, ss 55, 56, 137.
RULING 15 – Application by accused to exclude evidence of the fatwa of Sheik Al Adnani Al Shami issued September 2014 – Evidence Act 2008, ss 55, 56, 97, 137.
RULING 16 – Application by accused to exclude references to Osama Bin Laden and Abu Bakr Al Baghdadi – Evidence Act 2008, ss 55, 56, 137.
RULING 17 – Application by accused to exclude evidence relating to three trips to Clonbinane – P alleged trips were for the purpose of testing improvised explosive devices whereas accused claimed trips were purely recreational – Evidence Act2008, ss 55, 56, 137.
RULING 18 – Ultimately, no ruling required.
RULING 19 – Application by D2 & D3 to exclude parts of ARUNTA call on 1 September 2017 between D3 and unidentified male – Evidence Act 2008, ss 55, 56, 90, 137.
RULING 20 – Application by D1 to exclude screenshot of “Heavy.com” article – Evidence Act 2008, ss 55, 56.
RULING 21 – Application by D1 to exclude image of “martyred” cousin Nabil Abbas sent by D1 on 16 May 2016 to Nabila Abbas (D1’s sister) by WhatsApp and MMS – Evidence Act2008, ss 55, 56, 137.
RULING 22 – Application by D1 to exclude screenshot of Facebook page showing ”Tinny Terrorists” – Evidence Act 2008, s 137.
RULING 23 – Ultimately, no ruling required.
RULING 24 – Application by D3 to exclude images stored on D3’s mobile phone of a person in a park waving a black flag – Evidence Act 2008, ss 55, 56.
RULING 25 – Application by D1 to exclude text message received by D1 on 22 March 2015 about Islamic State destroying mosques being consistent with the prophet’s teaching – Evidence Act2008, ss 55, 56, 137.
RULING 26 – Application by D3 to exclude WhatsApp messages between D3 and “Esam” about the Pulse Nightclub Massacre in Orlando, Florida – Evidence Act 2008, s 137.
RULING 27 – Application by D3 to exclude text messages between Omar Elhawali and D3 re Muslims taking oath of allegiance to Australia – Evidence Act 2008, ss 55, 56, 137.
RULING 28 – Application by D3 to exclude text messages on 17 December 2016 between D3 and his wife, Balqisa Sheikh, regarding D3 constantly being away from home – Evidence Act 2008, ss 55, 56, 137.
RULING 29 – Application by D1 to exclude intercepted prison cell conversation on 23 December 2016 (or parts thereof) – Evidence Act 2008, ss 55, 56, 137.
RULING 30 – Application by D1 to exclude evidence of the PDF of a Fatwa located on his mobile phone – Evidence Act 2008, ss 55, 56, 137.
RULING 31 – Application by D1 to exclude his searches for ‘nasheeds’ and other web searches – Evidence Act 2008, ss 55, 56, 137 – R v Dickman (2017) 261 CLR 601; [2017] HCA 24.
RULING 32 – Application by D1 to exclude evidence of the firearms application downloaded on D1’s computer – Evidence Act 2008, ss 55, 56, 137.
RULING 33 – Application by D1 to exclude reliance by P on certain conduct by D1 as incriminating conduct – Jury Directions Act 2015, ss 19, 20, 21.
RULING 34 – Application by D2 to exclude evidence of D2’s attempt to travel overseas on 9 July 2015 – Evidence Act 2008, ss 55, 56, 137.
RULING 35 – Application by D2 to exclude evidence of D2’s alleged remarks at time of arrest – Remarks relied on by P for inference that D2 supported violent jihad – Alleged remarks not tape recorded or subsequently confirmed on tape recording – Alleged remarks never put to D2 in recorded police interview – Crimes Act (Cth) 1914, ss 23A, 23B, 23G, 23V – Crimes Act (Vic) 1958, s 464H – Evidence Act 2008, ss 90, 137.
RULING 36 – Application by D2 to exclude references to firearms – Evidence Act 2008, ss 55, 56, 137.
RULING 37 – Application by D3 to exclude evidence of D3’s attempt to travel overseas on 27 May 2015 – Evidence Act 2008, ss 55, 56, 137.
RULING 38 – Application by D3 to exclude evidence of his alleged support for violent jihad between May and December 2014 – Evidence Act 2008, ss 55, 56, 137.
RULING 39 – Application by D3 to exclude evidence of D3 searching for ISIS on “Heavy.com” between 12 & 18 November 2016 – Evidence Act 2008, ss 55, 56, 137.
RULING 40 – Application by P to cross-examine D4, a co-offender called by P – D4 pleaded guilty in February 2018 to conspiring with D1, D2 and D3 to do an act or acts in preparation for or planning a terrorist act – Evidence Act 2008, ss 38, 137, 192, 192A.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr N Papas QC with Mr P Doyle
Commonwealth Director
of Public Prosecutions
For the Accused Abbas
Ms F Gerry QC with
Ms A Beech
Stary Norton Halphen
For the Accused Mohamed
Mr J Kelly SC with
Ms A Cannon
Leanne Warren
and Associates
For the Accused Chaarani
Mr P Tehan QC with Mr M Dempsey
James Dowsley
and Associates
TABLE OF CONTENTS
INTRODUCTION........................................................................................................................................ 1
RULING 1 – APPLICATION BY ACCUSED TO EXCLUDE NINE PRO ISLAMIC STATE VIDEOS.............................. 4
Background........................................................................................................................................ 4
Submissions...................................................................................................................................... 11
Analysis............................................................................................................................................ 16
RULING 2 – APPLICATION BY ACCUSED TO EXCLUDE VIDEO TITLED “CHILD SOLDIERS EXECUTING AND BEHEADING 5 KURDISH FIGHTERS” OR PARTS THEREOF........................................................................................... 21
Background....................................................................................................................................... 22
Submissions...................................................................................................................................... 23
Analysis............................................................................................................................................ 25
RULING 3 – APPLICATION BY ACCUSED TO EXCLUDE VIDEO TITLED “BATTLEFIELD DEAD AND SUICIDE ATTACKS” OR PARTS THEREOF................................................................................................................................ 26
Background....................................................................................................................................... 26
Submissions...................................................................................................................................... 27
Analysis............................................................................................................................................ 28
RULING 4 – APPLICATION BY ACCUSED TO EXCLUDE THE VIDEO TITLED “IS 2” OR PARTS THEREOF............ 29
Background....................................................................................................................................... 29
Submissions...................................................................................................................................... 30
Analysis............................................................................................................................................ 31
RULING 5 – APPLICATION BY ACCUSED TO EXCLUDE VIDEO TITLED “A SECOND MESSAGE TO AMERICA” OR PARTS THEREOF.......................................................................................................................................... 33
Background....................................................................................................................................... 33
Submissions...................................................................................................................................... 34
Analysis............................................................................................................................................ 36
RULING 6 – APPLICATION BY ACCUSED TO EXCLUDE VIDEO TITLED “KILL THE HELPERS OF THE DEVIL” OR PARTS THEREOF.......................................................................................................................................... 37
Background....................................................................................................................................... 38
Submissions...................................................................................................................................... 39
Analysis............................................................................................................................................ 40
RULING 7 – APPLICATION BY ACCUSED TO EXCLUDE VIDEO TITLED “ADDRESS BY MUSA CERANTONIO – THE FILTH OF NATIONALISM”................................................................................................................................. 41
Background....................................................................................................................................... 41
Submissions...................................................................................................................................... 42
Analysis............................................................................................................................................ 45
RULING 8 – APPLICATION TO EXCLUDE THE VIDEO TITLED “FLAMES OF WAR 2” OR PARTS THEREOF......... 45
Background....................................................................................................................................... 45
Submissions...................................................................................................................................... 46
Analysis............................................................................................................................................ 48
RULING 9 – APPLICATION BY ACCUSED TO EXCLUDE THE VIDEO TITLED “REMOTE 6fb” OR PARTS THEREOF 49
Background....................................................................................................................................... 49
Submissions...................................................................................................................................... 50
Analysis............................................................................................................................................ 52
RULING 10 – APPLICATION BY ACCUSED TO EXCLUDE THE VIDEO TITLED “YOU MUST FIGHT THEM O MUWAHHID” OR PARTS THEREOF.......................................................................................................................... 53
Background....................................................................................................................................... 53
Submissions...................................................................................................................................... 54
Analysis............................................................................................................................................ 57
RULING 11 – APPLICATION BY D1 AND D2 TO EXCLUDE EVIDENCE OF THE TITLES OF 24 YOUTUBE VIDEOS ALLEGEDLY ACCESSED BY D1, D3 AND D4........................................................................................... 58
Background....................................................................................................................................... 58
Submissions...................................................................................................................................... 60
Analysis............................................................................................................................................ 62
RULING 12 – APPLICATION TO EXCLUDE DESCRIPTIONS OF REDACTED PORTIONS OF SEVEN OF NINE ISLAMIC STATE VIDEOS THE SUBJECT OF RULINGS 1-10.............................................................................................. 64
Background....................................................................................................................................... 64
Submissions...................................................................................................................................... 68
Analysis............................................................................................................................................ 69
RULING 13 – APPLICATION BY D2 AND D3 TO EXCLUDE INTERMITTENT UNTRANSLATED ARABIC AUDIO AND SCRIPT IN THE 9 VIDEOS............................................................................................................................... 70
Background....................................................................................................................................... 70
Submissions...................................................................................................................................... 72
Analysis............................................................................................................................................ 73
RULING 14 – APPLICATION BY ACCUSED TO EXCLUDE IMAGES AND SCREENSHOTS FOUND ON ACCUSED’S DEVICES........................................................................................................................................................ 74
Background....................................................................................................................................... 74
Submissions...................................................................................................................................... 75
Analysis............................................................................................................................................ 75
RULING 15 – APPLICATION BY ACCUSED TO EXCLUDE EVIDENCE OF THE FATWA ISSUED BY SHIEK AL–ADNANI AL SHAMI IN SEPTEMBER 2014.............................................................................................................. 75
Background....................................................................................................................................... 75
Submissions...................................................................................................................................... 78
Analysis............................................................................................................................................ 79
RULING 16 – APPICATION BY ACCUSED TO EXCLUDE REFERENCES TO OSAMA BIN LADEN AND ABU BAKR AL BAGHDADI........................................................................................................................................ 80
Background....................................................................................................................................... 80
Submissions...................................................................................................................................... 81
Analysis............................................................................................................................................ 82
RULING 17 – APPLICATION BY THE ACCUSED TO EXCLUDE EVIDENCE RELATING TO THE THREE TRIPS TO CLONBINANE........................................................................................................................................................ 83
Background....................................................................................................................................... 83
Submissions...................................................................................................................................... 94
Analysis............................................................................................................................................ 97
RULING 18 – APPLICATION BY THE ACCUSED TO EXCLUDE EXPERT EVIDENCE OF FA DENIS SCOTT (AND DR GULLY)........................................................................................................................................................ 97
RULING 19 – APPLICATION BY D2 AND D3 TO EXCLUDE PARTS OF ARUNTA CALL ON 1 SEPTEMBER 2017 BETWEEN D3 AND AN UNIDENTIFIED MALE............................................................................................................ 98
Background....................................................................................................................................... 98
Submissions.................................................................................................................................... 101
Analysis........................................................................................................................................... 103
RULING 20 – APPLICATION BY D1 TO EXCLUDE SCREENSHOT OF “HEAVY.COM” ARTICLE......................... 104
Background..................................................................................................................................... 104
Submissions.................................................................................................................................... 104
Analysis........................................................................................................................................... 106
RULING 21 – APPLICATION BY D1 TO EXCLUDE IMAGE OF “MARTYRED” COUSIN NABIL ABBAS SENT BY D1 ON 16 MAY 2016 TO NABILA ABBAS (D1’S SISTER) BY WHATSAPP AND MMS.............................................. 107
Background..................................................................................................................................... 107
Submissions.................................................................................................................................... 109
Analysis........................................................................................................................................... 111
RULING 22 – APPLICATION BY D1 TO EXCLUDE SCREENSHOT OF FACEBOOK PAGE SHOWING “TINNY TERRORISTS”....................................................................................................................................................... 112
Background..................................................................................................................................... 112
Submissions.................................................................................................................................... 112
Analysis........................................................................................................................................... 113
RULING 23 – APPLICATION BY D3 TO EXCLUDE AN IMAGE OF AN AK47 FIREARM SENT FROM D3’S PHONE VIA WHATSAPP..................................................................................................................................... 114
RULING 24 – APPLICATION BY D3 TO EXCLUDE IMAGES STORED ON D3’S MOBILE PHONE OF A PERSON IN A PARK WAVING A BLACK FLAG................................................................................................................... 114
Background..................................................................................................................................... 114
Submissions.................................................................................................................................... 114
Analysis........................................................................................................................................... 115
RULING 25 – APPLICATION BY D1 TO EXCLUDE TEXT MESSAGE RECEIVED BY D1 ON 22 MARCH 2015 ABOUT ISLAMIC STATE DESTROYING MOSQUES BEING CONSISTENT WITH THE PROPHET’S TEACHING....................... 115
Background..................................................................................................................................... 115
Submissions.................................................................................................................................... 116
Analysis........................................................................................................................................... 117
RULING 26 – APPLICATION BY D3 TO EXCLUDE WHATSAPP MESSAGES BETWEEN D3 AND “ESAM” ABOUT THE PULSE NIGHTCLUB MASSACRE IN ORLANDO, FLORIDA............................................................................... 117
Background..................................................................................................................................... 117
Submissions.................................................................................................................................... 118
Analysis........................................................................................................................................... 118
RULING 27 – APPLICATION BY D3 TO EXCLUDE TEXT MESSAGES BETWEEN OMAR ELHAWLI AND D3 REGARDING MUSLIMS TAKING THE OATH OF ALLEGIANCE TO AUSTRALIA........................................................... 118
Background..................................................................................................................................... 118
Submissions.................................................................................................................................... 120
Analysis........................................................................................................................................... 121
RULING 28 – APPLICATION BY D3 TO EXCLUDE TEXT MESSAGES ON 17 DECEMBER 2016 BETWEEN D3 AND HIS WIFE BALQISA SHEIKH REGARDING D3 CONSTANTLY BEING AWAY FROM HOME...................................... 122
Background..................................................................................................................................... 122
Submissions.................................................................................................................................... 124
Analysis........................................................................................................................................... 124
RULING 29 – APPLICATION BY D1 TO EXCLUDE AN INTERCEPTED PRISON CELL CONVERSATION ON 23 DECEMBER 2016 OR PARTS THEREOF................................................................................................................ 125
Background..................................................................................................................................... 125
Submissions.................................................................................................................................... 126
Analysis........................................................................................................................................... 127
RULING 30 – APPLICATION BY D1 TO EXLUDE EVIDENCE OF THE PDF OF THE FATWA LOCATED ON HIS MOBILE PHONE............................................................................................................................................ 128
Background..................................................................................................................................... 128
Submissions.................................................................................................................................... 129
Analysis........................................................................................................................................... 131
RULING 31 – APPLICATION BY D1 TO EXCLUDE HIS NASHEED AND WEB SEARCHES................................. 132
Background..................................................................................................................................... 132
Submissions.................................................................................................................................... 133
Analysis........................................................................................................................................... 135
RULING 32 – APPLICATION BY D1 TO EXCLUDE EVIDENCE OF THE FIREARMS APPLICATION DOWNLOADED ON D1’S COMPUTER..................................................................................................................................... 136
Background..................................................................................................................................... 136
Submissions.................................................................................................................................... 137
Analysis........................................................................................................................................... 138
RULING 33 – APPLICATION BY D1 TO EXCLUDE RELIANCE BY P ON CERTAIN CONDUCT BY D1 AS INCRIMINATING CONDUCT....................................................................................................................................... 139
Background..................................................................................................................................... 139
Submissions.................................................................................................................................... 142
Analysis........................................................................................................................................... 144
RULING 34 – APPLICATION BY D2 AND D3 TO EXCLUDE EVIDENCE OF D2’S ATTEMPT TO TRAVEL OVERSEAS ON 9 JULY 2015....................................................................................................................................... 145
Background..................................................................................................................................... 145
Submissions.................................................................................................................................... 151
Analysis........................................................................................................................................... 153
RULING 35 – APPLICATION BY D2 TO EXCLUDE EVIDENCE OF D2’S ALLEGED COMMENTS AT TIME OF ARREST (“MAKE ME A MARTYR”, ETC)...................................................................................................................... 154
Background..................................................................................................................................... 154
Submissions.................................................................................................................................... 167
Analysis........................................................................................................................................... 171
RULING 36 – APPLICATION BY D2 TO EXCLUDE REFERENCES TO FIREARMS............................................. 174
Background..................................................................................................................................... 174
Submissions.................................................................................................................................... 177
Analysis........................................................................................................................................... 178
RULING 37 – APPLICATION BY D3 TO EXCLUDE EVIDENCE OF D3’s ATTEMPT TO TRAVEL OVERSEAS ON 27 MAY 2015....................................................................................................................................................... 179
Background..................................................................................................................................... 179
Submissions.................................................................................................................................... 184
Analysis........................................................................................................................................... 187
RULING 38 – APPLICATION BY D3 TO EXCLUDE EVIDENCE OF SUPPORT FOR VIOLENT JIHAD BETWEEN MAY AND DECEMBER 2014............................................................................................................................. 187
Background..................................................................................................................................... 187
Submissions.................................................................................................................................... 189
Analysis........................................................................................................................................... 191
RULING 39 – APPLICATION BY D3 TO EXCLUDE EVIDENCE OF D3 SEARCHING FOR ISLAMIC STATE ON “HEAVY.COM” BETWEEN 12 NOVEMBER 2016 AND 18 NOVEMBER 2016................................................................. 192
Background..................................................................................................................................... 192
Submissions.................................................................................................................................... 192
Analysis........................................................................................................................................... 193
RULING 40 – APPLICATION BY P TO CROSS-EXAMINE P’s OWN WITNESS, D4, A CO-OFFENDER................ 193
Background..................................................................................................................................... 194
Submissions.................................................................................................................................... 210
Analysis........................................................................................................................................... 213
INTRODUCTION
1 Each of the accused were tried, and convicted, on a charge of conspiring to do an act or acts in preparation for or planning a terrorist act contrary to ss 11.5(1) and 106(1) of the Criminal Code (Cth).
2 On 17 August 2018, I made a number of pre-trial rulings. At the time, I provided the parties with a Table of Rulings which is Annexure A below. I said I would provide detailed written reasons for those rulings in due course and I do so now.
3 On 24 August 2018, I made an additional pre-trial ruling. I ruled that the prosecution (‘P’) could cross-examine its own witness, Ibrahim Abbas (‘D4’), a co-offender who had pleaded guilty , if he testified in accordance with certain representations made by him to police. I also include here my reasons for that advance ruling.
4 Before setting out my reasons for the above mentioned rulings, a brief chronology of events is in order.
5 On 22 December 2016, four men Hamza Abbas (‘D1’), Abdullah Chaarani (‘D2’), Ahmed Mohamed (‘D3’) and D4 were arrested by the Australian Federal Police (‘AFP’). They were each charged with conspiring with one another between 21 October 2016 and 22 December 2016 to do an act or acts in preparation for or planning a terrorist act or acts.
6 On 6 February 2018, D4 pleaded guilty.[1]
[1]The plea Indictment to which D4 pleaded guilty was in similar but not identical terms to the trial Indictment on which D1, D2 & D3 were tried.
7 The trial of D1, D2 and D3 was listed to commence on 16 July 2018.
8 Their trial Indictment, which nominated D4 as a co-conspirator, described the contemplated terrorist act as follows:
“an action or threat of action involving the detonation of an improvised explosive device or devices and/or the use of bladed weapons and/or the use of a firearm or firearms in or around the city of Melbourne , in an area in which people were likely to congregate.”[2]
[2]This is the terrorist act described in the Indictment dated 17 August 2018 and filed over the same day. The previous Indictment dated 12 April 2018, and D4’s plea Indictment dated 6 February 2018, described the terrorist act as follows: “an action or threat of action involving the detonation of an improvised explosive device or devices and/or the use of bladed weapons and/or the use of a firearm in the immediate vicinity of Federation Square, Flinders Street Train Station and Saint Paul’s Cathedral in the Melbourne Central Business District.”
9 The particulars of the preparatory acts described in the trial Indictment were:
(a) purchasing chemicals, explosive substances, and mechanical and electrical components for use in the manufacture of improvised explosive devices;
(b) taking steps towards manufacturing and testing improvised explosive devices;[3]
[3]This particular was not included in D4’s plea Indictment dated 6 February 2018.
(c) purchasing bladed weapons;
(d) taking steps to gain access to firearms;[4] and
(e) conducting reconnaissance of potential target areas of Federation Square, Flinders Street train station and St Paul’s Cathedral.
[4]This particular was not included in D4’s plea Indictment dated 6 February 2018.
10 In brief, it was alleged that during the period of the conspiracy, the accused and D4 were making preparations and plans for a terrorist attack at or in the vicinity of Federation Square on or around Christmas 2016. D2, D3 and D4 were alleged to be the original conspirators and D1 was alleged to have joined the conspiracy in early December 2016.
11 On 16 July 2018, the day the trial was listed to commence, pre-trial argument commenced.
12 On 20 July 2018, P filed and served a notice of additional evidence, indicating for the first time that they intended to call D4 to give evidence, whether he cooperated with P or not.
13 On 27 August 2018, the jury was finally empanelled.
14 On 2 November 2018, the jury returned verdicts of guilty in respect of all three men, each of whom I remanded in custody for a plea hearing in April 2019. At the request of the parties, that plea hearing was postponed until the completion of another lengthy terrorism trial of D2 and D3 before Tinney J.[5] The plea hearing for the accused in this matter was finally conducted on 15-16 October 2019.
[5]See R v Mohamed, Chaarani & Moukhaiber [2019] VSC 498.
15 On 29 November 2019, I sentenced the accused.[6]
[6]R v Abbas, Chaarani & Mohamed [2019] VSC 775.
16 I turn now to the reasons for my pre-trial rulings. Unless otherwise indicated, all references to sections and parts are to sections and parts of the Evidence Act 2008. For convenience’s sake, I also include a Table of Abbreviations:
Abbreviation Meaning D1 Hamza Abbas. D2 Abdullah Chaarani. D3 Ahmed Mohamed. D4 Ibrahim Abbas. IED Improvised explosive device. IS Islamic State. LEE List of Electronic Exhibits dated 20 July 2018 which became Exhibit 10 at the pre-trial hearing. LEE 63, for example, means Item 63 in Exhibit 10. P Prosecution. PRs Previous representations. ROI Record of Interview. SIC Summary of Intercepted Conversations dated 19 July 2018 prepared by the prosecution. SPO Amended Prosecution Summary of Opening dated 19 July 2018 and redacted on 1 August 2018. SPO [63], for example, means paragraph 63 of the Amended Prosecution Summary of Opening. TATP Triacetone triperoxide, a highly explosive material. TRs Testimonial representations.
RULING 1 – APPLICATION BY ACCUSED TO EXCLUDE NINE PRO ISLAMIC STATE VIDEOS
Background
17 The impugned evidence consisted of nine pro-Islamic State (‘IS’) videos. These were the only IS videos which P sought to play to the jury, although there were more found on devices belonging to the accused. Some redactions had already been made to the videos by P. For example, a number of videos showed beheadings but the actual moment of beheading was redacted and the images of severed heads were pixilated.
18 The videos were labelled by P as follows:
A. Child soldiers executing and beheading 5 Kurdish fighters;[7]
B. Battlefield dead and suicide attacks;[8]
C. IS 2;[9]
D. A second message to America;[10]
E. Kill the Helpers of the Devil;[11]
F. Address by Musa Cerantonio – The Filth of Nationalism;
G. Flames of War 2;[12]
H. Remote 6fb;[13]
I. You must Fight them O Muwahhid.[14]
[7]P ultimately provided an English translation of this video for the jury. The video and transcript became Exhibit 4 in the trial and, on the List of Electronic Exhibits included in the Jury Book, was Item 62 (LEE 62).
[8]P ultimately provided an English translation of this video for the jury. The video and transcript became Exhibit 8 in the trial and, on the List of Electronic Exhibits included in the Jury Book, was Item 70 (LEE 70).
[9]P ultimately provided an English translation of this video for the jury. The video and transcript became Exhibit 5 in the trial and, on the List of Electronic Exhibits included in the Jury Book, was Item 89 (LEE 89) and Item 248 (LEE 248).
[10]The video, which was in English, became Exhibit 9 in the trial and, on the List of Electronic Exhibits included in the Jury Book, was Item 153 (LEE 153).
[11]P ultimately provided an English translation of this video for the jury. The video and transcript became Exhibit 10 in the trial and, on the List of Electronic Exhibits included in the Jury Book, was Item 157 (LEE 157).
[12]The video had English subtitles and became Exhibit 14 in the trial and, on the List of Electronic Exhibits included in the Jury Book, was Item 172 (LEE 172).
[13]P ultimately provided an English translation of this video for the jury. The video and transcript became Exhibit 6 in the trial and, on the List of Electronic Exhibits included in the Jury Book, was item 178 (LEE 178).
[14]The video had English subtitles and became Exhibit 7 in the trial and, on the List of Electronic Exhibits included in the Jury Book, was item 217 (LEE 217).
19 I will briefly summarise the content of each of these videos:
A.In “Child soldiers executing and beheading 5 Kurdish fighters,” there are images of dead and maimed civilians, including children, in a devastated city or cities. A man is beheaded in the street before a crowd. There are scenes of battle and explosions. There is footage of group executions carried out by “normal” IS soldiers, child soldiers and old men. The IS soldiers use knives to execute their victims; the child soldiers and old men use pistols. Each group of victims kneel in a line before their executioners. There are close ups of the victims’ faces as they await death. One individual from each group of executioners makes a speech before the executions are carried out. The IS flag is shown fluttering in the corner of the screen. There are close ups of the aftermath of the executions. The sound track of the video mostly consists of chanting interspersed by a narrator’s voice.
B.In “Battlefield dead and suicide attacks”, there is footage of an IS military leader addressing his troops at night before a battle. Later, victorious IS soldiers are shown standing behind a line of dead enemy combatants whose bodies are bulldozed into a mass grave. There are close ups of prisoners. There are many scenes of battles, the IS flag fluttering in the corner of the screen. Victorious IS soldiers display the spoils of their victories including weapons and ammunition they have captured. A suicide bomber speaks about his faith and his love for his family before driving his explosive laden vehicle into its target which causes a massive explosion. Another suicide bomber in a similar vehicle does likewise. There are many images of battle casualties. The sound track consists mostly of chanting and occasional narration. The video is accompanied by English subtitles.
C.In IS 2, there are many battle scenes with the IS flag fluttering in the corner of the screen. An IS soldier with his hand blown off makes a speech to the camera, seemingly unperturbed by the state of his hand which he holds up like a badge of honour. There is a long sequence involving a successful attack on an enemy compound and close ups of dead enemy combatants. There are also close ups of injured IS soldiers, at least one of whom makes the Tawheed gesture. There is aerial footage of a number of suicide attacks carried out in explosive laden vehicles. There are massive explosions when the vehicles hit their targets, whether that be an enemy compound or convoy. The sound track consists of chanting with occasional narration.
D.“A second message to America” begins with a speech by US President Obama about defending Americans and punishing IS. Then an American journalist Steven Sotloff, kneeling before an IS executioner holding a knife, makes a speech criticising President Obama. The masked executioner makes a speech before cutting Sotloff’s throat and killing him.
E.In “Kill the Helpers of the Devil”, blood spatters the screen from time to time. Allied aircraft are shown taking off or dropping bombs. A male is executed with a sword, and several more males are executed by shooting. A number of IS prisoners make speeches to the camera. After each victim’s speech, the sound of a sword being pulled from a sheath is heard. The five victims, kneeling in a line, are executed by masked gunmen. Other prisoners answer questions before the camera. At the end of questioning, the sound of a sword being unsheathed is heard. Several males are executed by gunfire. A prisoner is made to climb to the top of a tower and display a flag whereupon he is shot and falls to the ground dead. Three males are executed by having their throats cut before a crowd. The speeches in this video are all in Arabic.
F.In “Address by Musa Cerantonio – The Filth of Nationalism” Cerantonio, one of the accused in a terrorist trial running before Croucher J, makes a long speech attacking nationalism and urging Jihad.
G.In “Flames of War 2” there are images of allied firepower interspersed with images of Presidents Obama, Putin and Trump. There are images showing the carnage caused by allied attacks. There are dead and injured civilians, including children. The narrator declares that the allied war on terror has been a failure. There are graphics of flaming meteors hitting a map showing locations of terrorist attacks in allied countries. There are scenes of warfare and suicide bombers carrying out attacks. There is an image of map with a lit fuse burning across the map towards an IS target. There are images of IS soldiers in prayer and in action, blowing up tanks with hand held rocket launchers. There are Russian helicopters attacking IS troops and being destroyed. Enemy soldiers are beheaded, their severed heads raised in the air and/or placed on the victim’s torso. IS soldiers celebrate victory. Injured IS soldiers raise their finger in the sign of the Tawheed. There are more suicide attacks in vehicles laden with explosives and close ups of soldiers being decapitated, shown in slow motion. Multiple severed heads are shown rolling downhill in slow motion. A male prisoner is chained and burned alive. IS soldiers oversee enemy soldiers digging their own graves, then shoot them in the head. Throughout the video there is an English voice over.
H.In “Remote 6fb,” there are scenes of battle, IS soldiers marching, President Obama and other world leaders watching war planes fly over. There are images of deceased or injured children, presumably victims of allied attacks. American Secretary of State John Kerry addresses a gathering of Islamic leaders. There is a mass execution of prisoners by gunfire. There are more images of allied firepower, war planes and ships. There are bombs exploding and IS soldiers travelling in convoy, the IS flag fluttering on their vehicles. President George W. Bush is shown declaring that the battle of Iraq has been won. A masked Islamic spokesman, holding a knife addresses President Obama, saying the spark has been lit in Iraq. There is a close up of a severed head. An IS soldier carries the IS flag, as he walks slowly, high on a hillside above a town. The soundtrack is that of an Islamic speaking narrator.
I.“You must Fight them O Muwahhid” begins with scenes of terrorist attacks around the world. It is then broken into four parts. In the first part, an IS soldiers, assisted by a second soldier, explains how to carry out terrorist knife attacks. He speaks in French and there are English subtitles. He demonstrates on a prisoner who is gagged and bound, arms outstretched. The victim is eventually executed by cutting his throat and stabbing him in the torso. In the second part of this video, a masked IS soldier standing in a street, makes a call to arms in English. He speaks of Muslim women being raped and dishonoured by the enemy. This exhortation is followed by scenes of terrorist attacks. In the third part of the video, a masked IS soldier in a suburban kitchen, shows how to make an improvised explosive device, using, amongst other things, hydrogen peroxide, acetone and sulphuric acid. In the last part of the video, a prisoner has explosives strapped to him and is made to run into the distance, shots being fired at his feet. His deadly package is then exploded remotely. The video ends with scenes of preparation for terrorist attacks and pictures of IS publications.
20 Each of these nine videos was referred to in a list of electronic exhibits (‘LEE’) that became pre-trial Exhibit 10.[15]
[15]This should not be confused with the revised List of Electronic Exhibits which was put before the jury and had different item numbering.
21 LEE, which was based largely on the forensic analysis of electronic devices seized from each of the accused and D4, indicated, in respect of each item, which seized mobile phone or computer allegedly accessed the relevant item, and when it was so accessed.
22 LEE indicated that none of the impugned videos were accessed on devices seized from D1.
23 LEE indicated that D2’s Samsung mobile phone was used to access video A on 1 and 2 of September 2016,[16] video B on 15 October 2016[17] and video C on 22 December 2016.[18]
[16]LEE 63.
[17]LEE 70.
[18]LEE 83.
24 LEE indicated that D3’s iPhone 6 was used to access video C on 22 December 2016,[19] video H on 24 June 2016[20] and 25 June 2016,[21] and video I on 28 November 2016.[22]
[19]LEE 259.
[20]LEE 193.
[21]LEE 194.
[22]LEE 231.
25 LEE indicated that D4’s blue hard drive accessed or stored video D on 28 January 2016[23] and video E on 12 March 2016.[24] LEE indicated that D4’s silver USB drive stored video F in the favourites folder on 19 August 2013. LEE indicated that D4’s black mini-computer tower with Seagate drive accessed video G on 22 December 2016.
[23]LEE 165. Note that in my Table of Pre Trial Rulings I incorrectly referred to LEE 166.
[24]LEE 169.
26 On 17 August 2018, I rejected the accused’s application to exclude all nine videos. I ruled that, provided certain additional redactions were made, which I will discuss later, P could play the videos to the jury, save for video F.[25]
[25]Ruling 1 in my Table of Pre Trial Rulings does not indicate that I excluded Video F but Ruling 7 makes it clear that I did so.
Submissions
D1
27 D1’s primary submission was that there was no need for P to play any of the videos as LEE gave the jury an adequate description of the videos without subjecting them to unnecessary, gruesome material. D1 distinguished these videos from crime scene videos or post-mortem photos, because in many cases, juries need to see such material for an understanding of the alleged crime or cause of death. These videos, by contrast, had no forensic purpose, according to D1.
28 D1 submitted that P had failed to identify the purpose of the evidence. [26] If P was relying on the videos to ask the jury to conclude that a person who had such videos would be more likely to agree to a terrorist act, then, according to D1, tendency reasoning was invited. In the absence of reasonable written notice and significant probative value, such reasoning was impermissible under s 97.
[26]Transcript of Proceedings, R v Abbas, Chaarani & Mohamed (Supreme Court of Victoria, S CR 2017 0177; 0176; 0175, Beale J, 2 August 2018), 542.
29 D1 also submitted that, if P sought to adduce the videos to show that the accused knew or had an idea of the sort of attack they would commit in the Melbourne CBD, then it simply lacked relevance as regards D1 because none of the impugned videos were on D1’s devices, and while he may have viewed some of the material on the other accused’s devices, it did not make it more likely that he entered into the conspiracy.
D2
30 In his written submissions,[27] D2 submitted that the videos were highly emotive and that most jurors would find them particularly disturbing and distressing. D2 suggested that the jury should be informed of the videos’ content, rather than having the videos played.
[27]See D2’s written submissions dated 1 August 2018.
31 D2 also submitted that the videos ought be excluded because of the lack of ‘common possession’. D2 noted that P’s case was that evidence of a common ideology was central to the existence of a conspiracy between the accused. D2 referred to Elomar v R[28] where at [474] the NSWCCA said:
These were not facts to be proved by tendency evidence. They were facts to be proved by inferences drawn from circumstantial evidence. The circumstances were the common possession of the extremist material, providing the foundation (or part of the foundation) for an inference that other activities of the appellants were undertaken in preparation for a terrorist act or acts. The evidence was relevant also as providing the foundation (or part of the foundation) for an inference that the various appellants agreed with each other appellant, and with the other alleged co-conspirators, to prepare for a terrorist act or acts.
[28]Elomar v R [2014] NSWCCA 303.
32 D2 said that the key phrase was ‘common possession’, and provided a chart to make the point that there was little extremist material that was possessed by all of the accused.
33 In oral submissions,[29] D2 did not substantially add to his written submissions, other than to emphasise that the material could be elicited through the tender of LEE and/or through expert evidence. The material, D2 submitted, was highly emotive, confronting and there was a lack of precision from P about what it sought to achieve by tendering the videos.
[29]Transcript of Proceedings, R v Abbas, Chaarani & Mohamed (Supreme Court of Victoria, S CR 2017 0177; 0176; 0175, Beale J, 2 August 2018), 573.
34 In D2’s response[30] to P’s submission (summarised below) that Elomar v The Queen[31] and Benbrika v The Queen[32] provided support for the playing of the impugned videos, D2 submitted that merely because it had been done before did not mean it should be done here, particularly when the evidence could be adduced by other means. D2 distinguished Benbrika v The Queen[33] where the accused were charged with being members of a terrorist organisation rather than being parties to a conspiracy.
[30]Ibid 574.
[31]Elomar v R [2014] NSWCCA 303.
[32]Benbrika v R (2010) 29 VR 593; [2010] VSCA 281.
[33]Benbrika v R (2010) 29 VR 593; [2010] VSCA 281.
35 D2 submitted that there must be a limit to the amount of extremist material to be adduced and its cumulative weight would eventually get to the point where its minimal probative value would be exceeded by the risk of unfair prejudice.
D3
36 In oral submissions,[34] D3 adopted the submissions of the other accused, noting that the videos lacked context.
[34]Transcript of Proceedings, R v Abbas, Chaarani & Mohamed (Supreme Court of Victoria, S CR 2017 0177; 0176; 0175, Beale J, 2 August 2018), 533.
37 D3 submitted the videos were sensational in nature and accordingly, the prejudicial effect of putting the material before the jury exceeded whatever probative value it might have for that limited purpose; the highest the evidence could go would be to show the desensitising effect of the videos on the viewer. Such probative value was, according to D3, minimal.
P
38 P submitted that it had limited the number of videos to be played to the jury so that the jury would not be watching huge amounts of gruesome material.
39 P submitted that accessing of the videos by the accused increased the likelihood of the alleged criminal conspiracy having being formed.[35] P’s case was that the accused entered into an agreement to prepare and plan for an attack using improvised explosives, machetes, and knives and firearms with the aim of killing as many citizens as possible. According to P, the accused were motivated to carry out such an attack in pursuit of their ideological and religious objectives, to wage violent Jihad against those they considered to be disbelievers or “kuffar”.[36]
[35]Ibid, 543.
[36]See SPO at [2].
40 In P’s submission, to convict a person of such a serious crime, jurors would rationally require evidence of the accused’s state of mind. This would particularly be the case for jurors who had little understanding of IS and their methods or the conflict in the Middle East.
41 To support its contention that the videos were indicative of the radicalised state of mind of the accused, P relied on the analysis of Fulford J in R v Ibrahim (Ruling),[37] a case concerning attempted bombings in London on 21 July 2005. In that case, the accused were found in possession of extremist material. Fulford J said this in R v Ibrahim at [58]:
What is certain in my view is that the discovery of those records of beheadings is potentially highly revealing of the intentions of some or all of these accused. When the jury are assessing whether the events of 21 July may have been no more than a hoax, they would be entitled to take into account that one or more of the defendants had a clear interest in retaining the record of the violent deaths of others. This evidence potentially constitutes significant proof of the extent of the radicalisation of one or more of the defendants in that it reveals an apparent interest in using murder as opposed to discussion or protest as a tool of persuasion.[38]
[37]R v Ibrahim (Ruling) Unreported, Woolwich Crown Court, Fulford J, 11 January 2007.
[38]Whealy J applied Fulford J’s analysis in R v Baladjam et al (No 50) Unreported, Supreme Court of New South Wales, 2 October 2008 at [95]. This passage from Ruling 50 was extracted in Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206 at [418].
42 In P’s submission, the material it proposed playing to the jury was highly probative of P’s allegation that the accused had the relevant state of mind. Further, viewing the actual content, rather than just descriptions of it, was necessary to fully appreciate the material as the accused would have seen and absorbed it. This point was made by Whealy J in Baladjam & Ors (Ruling 50):
The jury is entitled to see a selected number of these images to appreciate the full flavour of the way in which they would have been viewed by the accused. A written or verbal description of the images and their content would not convey effectively the exaltation displayed, and intended to be displayed, by the images themselves.[39]
[39]R v Baladjam et al (No 50) Unreported, Supreme Court of New South Wales, 2 October 2008, 31 at [95].
43 Similar language was used by the Victorian Court of Appeal in Benbrika v The Queen, where evidence of execution videos was described as ‘highly probative as to both the existence and nature of the organisation and the common commitment of the applicants to the cause of violent Jihad’.[40]
[40]Benbrika v R (2010) 29 VR 593, 654 at [276]; [2010] VSCA 281 at [276].
44 P also addressed the risk of unfair prejudice, particularly that the jury might react to the videos in an unduly emotional way. P accepted that the jury ought not be unnecessarily traumatised, however maintained that the horror of the material needed to be revealed to some extent. P suggested that appropriate directions could be given. For example, in Elomar, the jury were directed in the following way:
I recognise that explicit material of that kind may be disturbing, offensive and confronting to some people. Some of the images, for example, show significant injuries to human beings. You must avoid reacting to this evidence in an emotional or irrational manner and you must guard against a natural human tendency to do so. It is of vital importance that as judges of the facts you maintain a dispassionate and detached view towards the whole of the evidence.[41]
[41]As quoted by the NSWCCA in Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206 at [424].
45 The jury were also reminded in Elomar that the videos formed just part of circumstantial case, and that it would be completely wrong to reason that any of the accused had a tendency or propensity to commit an act or acts in preparation of a terrorist act.
46 P rejected the argument that to allow the videos would be to invite tendency reasoning. It submitted that it was simply inviting the jury to consider whether between the dates of the alleged conspiracy, the accused had made an agreement. The videos were simply part of the circumstantial evidence of an agreement. In support of this, P again referenced Elomar:
The relevant facts sought to be proved by the Crown by the tender of the evidence were:
• the association between various appellants;
• that various appellants had a state of mind that was disposed towards Islamic jihad; and
• that the appellants agreed with one another and with other alleged co-conspirators to engage in acts and preparation for a terrorist act or acts.
These were not facts to be proved by tendency evidence. They were facts to be proved by inferences drawn from circumstantial evidence.[42]
[42]Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206 at [473] to [474].
47 In P’s submission, the same analysis was warranted in this case.
48 P submitted[43] that videos of fighting and conflict in the Middle East were relevant to a conspiracy to attack Australia. According to the ideology of IS, people who commit terrorist acts in Western countries are also soldiers of the caliphate. This is referenced in ‘Dabiq 6’ (an online IS publication which praises the actions of Man Monis, who committed an attack on Martin Place in Sydney in December 2014) and the fatwa of Al Adnani, which encouraged Muslims to act alone and strike the kuffur in their own lands. In the submission of P, no meaningful distinction could be drawn in the ideology between the soldiers depicted in videos who fight in the Middle East, and those that seek to plan or prepare terrorist acts in Australia.
[43]Transcript of Proceedings, R v Abbas, Chaarani & Mohamed (Supreme Court of Victoria, S CR 2017 0177; 0176; 0175, Beale J, 3 August 2018) 620.
Analysis
49 The first task in analysing the relevance of the impugned evidence was to identify the ultimate facts in issue. They are the facts which go to make up the elements of the charge. Those elements may be summarised as follows:
1.The accused[44] entered into an agreement with one or more of the alleged co-conspirators named in the Indictment to do an act, or acts, in preparation for, or planning, a terrorist act or acts; and
2.The accused intended to enter into that agreement; and
3.When the accused entered into the agreement, he intended that an act, or acts, in preparation for, or planning, a terrorist act or acts would be carried out in furtherance of the agreement; and
4.When the accused entered into the agreement, at least one other party to the agreement intended that an act, or acts, in preparation for, or planning, a terrorist act or acts would be carried out in furtherance of the agreement; and
5.When the accused entered into the agreement, he believed that at least one other party to the agreement (who in fact had the intention set out in 4. above) intended that an act, or acts, in preparation for, or planning, a terrorist act or acts would be carried out in furtherance of the agreement; and
6.After the accused entered into the agreement, he , or at least one other party to the agreement, committed an ‘overt act’ pursuant to the agreement.
[44]I am of course using the word “accused” here in the singular whereas elsewhere in these Rulings, unless the context indicates otherwise, I am using it in the plural.
50 It will be appreciated from this summary of the elements of the charge that proof of the accused’s ‘state of mind’ has multiple aspects to it, and that P must also prove the necessary state of mind of at least one alleged co-conspirator. The accused in question must: intend to enter into the alleged agreement; intend that an act in preparation for or planning a terrorist act be carried out in furtherance of the agreement; and believe that at least one other alleged party to the agreement also intended that an act in preparation for or planning a terrorist act would be carried out in furtherance of the agreement. P must also prove that at least one other alleged party to the agreement had a certain state of mind at the time the agreement was formed, namely, an intention that an act in preparation for or planning a terrorist act would be carried out in furtherance of the agreement.
51 The last point is important to bear in mind when considering the fact that D1 was not alleged to have accessed any of the impugned videos on his devices. Whilst at first blush that fact may seem to render the impugned videos irrelevant so far as his trial was concerned, that analysis does not withstand scrutiny since proof that another alleged party to the agreement had accessed the material goes some way to proving an element of the offence alleged against D1. Having regard to all the circumstances, including the fact that an alleged party accessed one or more of the impugned videos, it may be open to a jury to infer that that alleged party was favourably disposed toward its extremist ideology. This would in turn increase the probabilities they would enter into a criminal agreement of the kind alleged with D1.
52 Of course, the mere fact that a person may have accessed IS propaganda must be approached with some caution. That person may simply be satisfying a morbid curiosity and not be supportive of IS ideology at all. No doubt there are many people who view extremist material on the Internet without subscribing to the ideology underpinning that material. But, having regard to all the evidence, it may nevertheless be open to a jury to infer from the accessing of IS propaganda that the person in question is an IS supporter.
53 And in considering whether such an inference is open to the jury, one must not lose sight of the fact that the pro-IS material which the various accused accessed was not, on P’s case, limited to these nine videos. The evidence indicated that all of the accused, to a greater or lesser extent, accessed material which a jury could reasonably view as supportive of IS ideology and in particular, violent Jihad. LEE was replete with such material. The relevance of any impugned piece of evidence must be assessed in the context of all the evidence, not in isolation.
54 This fact provides an answer to the submission made by D2 and adopted by the others that the impugned videos were not relevant due to them not being in the common possession of the accused. To accede to such a submission would be to fail to see the nine videos in their proper context. Further, it was not necessary for there to have been accessing of all the material by all the accused to reasonably draw an inference that they were each favourably disposed to IS and its extremism.
55 As for the argument that P should be precluded from playing the impugned videos to the jury since LEE provided enough information already about the content of videos, this raised the issue of relevance as well as the discretionary and exclusionary rules in Part 3.11. All that needs to be said is that one gains a more vivid and fulsome appreciation of IS ideology from the videos so the availability of LEE does not render the videos otiose. As for the risk of unfair prejudice from the playing of the videos, I will deal with that when I turn to a consideration of Part 3.11.
56 Another objection to the videos that impliedly raise the question of relevance was the fact that in many of the videos things are said or sung or written in the Islamic language. For example, many of the videos have singing or chanting as their soundtrack, especially when they are purporting to show the bravery and persistence and sacrifice of IS fighters. Even without understanding the language, the singing or chanting gives one a sense of the religious fervour which attends IS ideology. Consequently I was not of the view that every Arabic word which was sung, spoken or written needed to be translated before it could form of part of the videos played to the jury but in any event P undertook to provide English translations for the bulk of the video content.
57 Accordingly, I concluded that the impugned evidence passed the test of relevance set out in Part 3.1, which it has been noted is not a particularly stringent test. One merely needs to be satisfied that a jury could rationally conclude, if it accepted the evidence, that it affected the probabilities of the existence of an ultimate fact in issue, however slightly.
58 I turn now to the objections to the playing of videos based on Part 3.6. There is a real difference between using circumstantial evidence to prove that a person had a continuous state of mind and using such evidence to prove that they had a tendency to have a state of mind. It was clear to me from the way P put its case against each of the accused, relying on all of the IS and Jihadi materials that the accused had accessed, individually and collectively, not just the videos, and also relying on the occasionally enthusiastic responses of some of the accused to such material which were captured on listening devices or telephone intercepts, that P would not be inviting the jury to infer that each accused had a tendency to support IS’ extremist ideology but rather that each accused simply supported the ideology; in other words, that each accused had a continuous state of mind. The New South Wales Court of Criminal Appeal in Elomar[45] and the Victorian Court of Appeal in Benbrika[46] recognised the validity of this distinction and I respectfully adopt their analysis.
[45]Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206.
[46]Benbrika v R (2010) 29 VR 593; [2010] VSCA 281.
59 Accordingly, I concluded that Part 3.6 was not engaged by the adduction of the videos.
60 In relation to the application of Part 3.11, I will focus on s 137 as it is the section most favourable to the accused. It only requires the accused to show that the risk of unfair prejudice would outweigh the probative value of the impugned evidence.
61 As I said above in relation to the application of Part 3.1, the videos give one a more vivid and fulsome appreciation of the extremism of IS ideology. Although the logic of that ideology is twisted and depraved – particularly in its failure to recognise the intrinsic worth of every human being regardless of creed – the videos also help one to understand how supporters of IS justify in their own minds the barbarity of terrorist attacks. Accordingly, I considered that the videos had significant probative value, even though P did not allege that D1 accessed these videos and P alleged that the co-conspirators only accessed some of these videos.
62 In relation to the danger of unfair prejudice, intermediate appeal courts in Elomar and Benbrika were of the view that if properly directed and cautioned against emotive responses, juries are robust enough to receive such material and use it for a proper purpose. Whilst I acknowledge that these videos were very confronting, I shared the confidence of these higher courts in the capacity of jurors to cope with this kind of material, especially if the most brutal parts of the videos are redacted. To that end I ruled that P’s permission to play the videos to the jury was conditional on P redacting, inter alia, images and audio of actual executions and their aftermath. I note too, that in Ruling 7 I excluded entirely Video F ‘Address by Musa Cerantonio – The Filth of Nationalism’ for the reasons stated below.
RULING 2 – APPLICATION BY ACCUSED TO EXCLUDE VIDEO TITLED “CHILD SOLDIERS EXECUTING AND BEHEADING 5 KURDISH FIGHTERS” OR PARTS THEREOF
Background
63 The accused sought the exclusion of a video titled “Child soldiers executing and beheading 5 Kurdish fighter” or parts thereof.
64 I note that the title given to this video was misleading in that child soldiers were not shown beheading victims, at least not in the version adduced by P.
65 The accused’s primary application was that this video should be completely excluded (2.0) for the reasons summarised in Ruling 1.
66 In the alternative, the accused impugned the following parts of this video:
·the showing of child executioners (2.1);
·untranslated Arabic audio (2.2); and
·untranslated Arabic script (2.3).
67 In Ruling 1 above, I summarised the content of this video as follows:
A.In “Child soldiers executing and beheading 5 Kurdish fighters,” there are images of dead and maimed civilians, including children, in a devastated city or cities. A man is beheaded in the street before a crowd. There are scenes of battle and explosions. There is footage of group executions carried out by middle aged IS soldiers, child soldiers and old men. The middle aged IS soldiers use knives to execute their victims; the child soldiers and old men use pistols. Each group of victims kneel in a line before their executioners. There are close ups of the victims’ faces as they await death. One individual from each group of executioners makes a speech before the executions are carried out. The Islamic State flag is shown fluttering in the corner of the screen. There are close ups of the aftermath of the executions. The sound track of the video mostly consists of chanting interspersed by a narrator’s voice over.
68 LEE 63 indicated that D2’s Samsung mobile phone was used to access video A on the 1st and 2nd of September 2016.
69 On 2 August 2018, I heard the parties’ submissions.
70 On 27 August 2018, I rejected the accused’s application to exclude 2.0, 2.1, 2.2 and 2.3.
Submissions
D1
71 Regarding 2.1, D1 submitted orally[47] that there was absolutely no need to see executions carried out by children when the video included executions carried out by adults. D1 submitted that the images of child executioners were “excruciatingly extreme.”[48]
[47]Transcript of Proceedings, R v Abbas, Chaarani & Mohamed (Supreme Court of Victoria, S CR 2017 0177; 0176; 0175, Beale J, 2 August 2018) 535.
[48]Ibid 594.
D2
72 Regarding 2.1, D2 submitted in writing[49] that “the section containing the child soldiers was unduly emotive, and redundant given that, later in the same video, adults are preforming the same activities.” D2 submitted orally[50] that the images of child executioners should be excluded under s 137 or the Haddara discretion.[51] Further, it was submitted that there is always a problem with the efficacy of jury directions when one is dealing with material which is particularly gruesome.[52]
[49]See D2’s written AV submissions dated 1 August 2018 at [9].
[50]Transcript of Proceedings, R v Abbas, Chaarani & Mohamed (Supreme Court of Victoria, S CR 2017 0177; 0176; 0175, Beale J, 2 August 2018) 530–581 (in reply).
[51]Haddara v R (2014) 43 VR 53; [2014] VSCA 100.
[52]Transcript of Proceedings, R v Abbas, Chaarani & Mohamed (Supreme Court of Victoria, S CR 2017 0177; 0176; 0175, Beale J, 2 August 2018) 583.
73 Regarding 2.2 and 2.3, D2 submitted in writing[53] that any video not in English and not translated should be played without sound. D2 submitted orally[54] that there was a risk that an Arabic speaking person might be on the jury panel who might translate parts for other jurors, thus generating evidence from an impermissible source. There was also a risk that the material might be mistranslated.
[53]See D2’s written AV submissions dated 1 August 2018 at [8].
[54]Transcript of Proceedings, R v Abbas, Chaarani & Mohamed (Supreme Court of Victoria, S CR 2017 0177; 0176; 0175, Beale J, 2 August 2018) 532–533.
D3
74 Regarding 2.1, D3 submitted orally[55] that there was no evidence that D2 enthusiastically endorsed this video which was accessed approximately a month before the commencement of the alleged conspiracy. It was implied that these two considerations lowered the probative value of showing the child executions. Directions would not be capable of curing the unfair prejudice that would flow from the graphic imagery of child executions.
[55]Ibid 584–586.
75 Regarding 2.2 and 2.3, D3 submitted orally that a video with an Arabic soundtrack would be of limited utility to the jury if not translated.[56]
[56]Ibid 533.
P
76 Regarding 2.1, P submitted orally[57] that the video was relevant because it emphasised the righteousness of the cause of killing people in the name of Allah. The contrast of a series of executions, first conducted by mature men, then by children and finally by older men created a powerful message, namely, that all loyal followers of IS should be fighting in such a manner; that there is nothing wrong with it. Further, the inclusion of child soldiers/executioners was a brazen and dramatic way of illustrating the point.
[57]Ibid 547.
77 LEE indicated that D2 accessed this video on 1-2 September 2016 which was close in time to when P alleged D2, D3 and D4 entered into the conspiracy. Relying on the analysis in Benbrika and Elomar, D2’s accessing of this kind of extremist material made it all the more likely that he entered into the alleged agreement with the intent alleged by P.
78 Regarding 2.1 and 2.2, P, in oral submissions, accepted that there was a difficulty with presenting to the jury untranslated Arabic audio and script, although P did not concede that the video lacked probative value without a translation. P stated that “we either need to produce translation or not have the audio play.”[58] I note that a transcript was ultimately produced.[59]
[58]Ibid 571.
[59]This was done and formed part of Exhibit 4 at the trial.
Analysis
2.0
79 For the reasons given in Ruling 1, this video was admissible.
2.1
80 Regarding 2.1, it was my view that the footage of child executors had probative value in that it showed the extremism of IS and its ideology. Simply describing this part of the video would fail to convey that extremism. The fact that the video showed other executions – by mature IS soldiers and old men – did not render the child executioners irrelevant. As I said during discussion, a jury could infer that the video was deliberately making the point that the cause of IS is so righteous that it is appropriate for even children to be involved in executions. The accessing of such material by D2, when considered in combination with other pro IS material accessed by him, could lead a jury to reasonably infer that he supported IS and was attracted rather than repulsed by its extremism. This in turn could be used by a jury to infer that he entered into the alleged conspiracy and had the necessary state of mind for the charged offence. Evidence of his state of mind would not only be relevant to the trial of D2. That is because an element to be proved against each accused was the state of mind of the alleged co-conspirators.
81 As for the danger of unfair prejudice, whilst the footage of child executioners was extreme, its shock value was significantly reduced by redacting the actual shooting of the victims and the bloody aftermath. In my view, a jury could be expected to follow directions not to allow an emotional response to this material to cloud their judgement.
2.2 & 2.3
663 Regarding s 192(2)(b), P submitted that there would be no unfairness to the accused or to D4 from the s 38 cross-examination. Whilst acknowledging that there was a risk that, if the jury thought D4 was telling lies in his testimony, the jury might think he was doing so at the instigation of the accused, P submitted that that risk could be managed by judicial directions, especially as P would not be suggesting to the jury that the accused commissioned D4 to lie for them. P said the risk was also ameliorated by the fact that in the prison cell conversation between D4 and the accused on 25 December 2016 summarised above (see SOC 367), D4 indicated that it was his idea, not the accused’s, for D4 to play up his role and play down theirs during ROI 1, which would support the inference that it was D4’s own idea to do likewise in his testimony. P submitted that it would be not be unfair to cross-examine D4 in circumstances where P would be inviting the jury to reject much or some of his evidence. Indeed, s 38 cross-examination of D4 would be consistent with P’s obligations of fairness under the rule in Browne v Dunn.[330]
[330]Browne v Dunn (1893) 6 R 67.
664 Regarding s 192(2)(c), P submitted that the evidence to be adduced in P’s cross examination of D4 would be important evidence because he was a participant in the alleged conspiracy.
665 Regarding s 192(2)(d), P submitted that the proceeding against the accused was a serious criminal prosecution for terrorist-related activity, which carries a maximum penalty of life imprisonment.
666 Regarding the timing of s 38 cross examination, P sought leave to commence cross examination once he had reached [6] of D4’s signed statement using non-leading questions. He also sought leave to commence cross-examination by playing ROI 1 to the jury.
D1
667 D1 submitted that it was inappropriate to make an advance ruling because of the uncertainty as to what D4 might say in his testimony. D4 submitted that the matter should be canvassed after he had given evidence in chief in the normal way. D2 and D3 approached the matter differently.[331]
[331]Their main concern was that P not be permitted to adduce evidence of D4 having pleaded guilty but P ultimately deferred its application to cross examine D4 about his plea.
D2
668 D2 did not oppose leave being granted to P to cross-examine D4 under s 38 but objection was taken by D2 to P playing the whole of ROI 1 in cross examination of D4.
D3
669 Like D2, D3 did not generally oppose leave being granted to P to cross-examine D4 under s 38 but objection was taken by D3 to P cross-examining D4 about the five matters highlighted in grey Table 3 above:
·Regarding 3.1, D3 submitted that if D4 gave such evidence it would not be unfavourable to P’s case because it did not indicate which admissions or PRs in ROI 1 were false or exaggerated.
·Regarding 3.4, D3 submitted that there was nothing about D4’s viewing himself as the leader of the group which was unfavourable to P’s case.
·Regarding 3.6, D3 submitted that evidence from D4 that he gave orders to others was demonstrably true. It would in fact be relied on by P and so would not be unfavourable to P’s case, which was not to say that the accused did not do things on their own initiative.
·Regarding 3.10, D3 submitted that it would not be open to a jury to infer that the purpose of the trips to Clonbinane was to test IEDs and so evidence from D4 that the trips to Clonbinane were for an innocent purpose would not be unfavourable to P’s case.
·Regarding 3.20, D3 submitted that evidence from D4 that he didn’t know if the others were ever convinced about committing a terrorist act would not be unfavourable to P’s case.
670 Regarding the timing of any s 38 cross examination of D4 by P, all accused submitted that it should only occur after non-leading examination in chief of D4’s was completed.
Analysis
671 In my view, it was not premature to rule on an advance application by P to cross examine D4. Notwithstanding some uncertainty about what D4 might say before the jury, he made a signed statement on 16 August 2018 confirming the version of events he gave in ROI 2 on 26 July 2018 in all but one respect. It was reasonable to think that his testimony would largely conform with his signed statement. Fairness to both sides dictated that I should make an advance ruling so that both sides could anticipate with greater certainty how the trial was likely to play out. Making an advance ruling did not prevent me from revisiting that ruling in the light of D4’s actual testimony before the jury. Accordingly, I rejected D1’s submission that I should not make an advance ruling.
672 As regards the existence of the preconditions for granting leave to P to cross examine D4 – relevantly, unfavourability (s 38(1)(a)) and/or inconsistency (s 38(1)(c)) – my analysis proceeded on the assumption that D4 would make TRs consistent with the PRs summarised in column 2 of Table 3. Leaving aside for the moment the PRs described in 3.1, 3.4, 3.6. 3.10 and 3.20 of Table 3, my view was that for the reasons given by P in column 4 of Table 3, which I will not repeat, the other PRs described in the Table would have been unfavourable to P’s case and/or inconsistent with PRs made by D4. This was not disputed by the accused: it was only in relation to PRs 3.1, 3.4, 3.6. 3.10 and 3.20 that it was contended, by D3, that they were not “unfavourable”.[332] Ultimately it was not necessary to rule on whether those five PRs would be unfavourable to P’s case because Table 3 was supplanted by Table 4 which consisted of actual TRs made by D4 in the course of his evidence in chief. In other words, before P actually launched into s 38 cross examination of D4, P narrowed the representations about which P wished to cross examine D4.[333]
[332]I note that in relation to 3.20 only, P submitted that D4’s previous representation was not only unfavourable but inconsistent: in other words, P submitted that both s 38(1)(a) and (c) were satisfied.
[333]My reasons for my trial ruling on P’s final s 38 application to cross examine D4 is to be found on page 1427 of the Transcript of Proceedings, R v Abbas, Chaarani & Mohamed (Supreme Court of Victoria, S CR 2017 0177; 0176; 0175, Beale J, 24 August 2018).
673 I turn now to my reasons for having granted advance leave to P to cross examine D4, having first determined that the preconditions for a grant of leave existed.
674 Re s 38(6), I acknowledged that P did not give notice of its s 38 application at the earliest opportunity. In my view notice was given very late, having regard to the fact that D4 pleaded guilty on 6 February 2018 and P waited until 20 July 18, that is, 4 days after the trial was listed to commence, to even announce its intention to call D4.[334] Further, it was not until 6 August 2018, almost two weeks after D4s ROI 2 on 26 July 2018, that P indicated in court that it was considering a s 38 application. But having said that, P’s s 38 application was flagged well prior to the empanelment of the jury, which occurred on 27 August 2018: in other words, there was plenty of time for the accused to prepare their cases, including their replies to P’s opening, in the knowledge that D4 would probably be giving evidence in the trial and that P would probably be given leave to cross examine him under s 38. Although my ruling on the s 38 application was not given until 24 August 2018, and the jury was empanelled three days later, it was understood that D4 would not be called until late in P’s case (as it was necessary to wait until he had been sentenced by Tinney J[335]) and this delay afforded the accused additional and ample time to prepare[336] their response to such cross examination of D4 by P.
[334]There was a change of Senior Counsel for P which may have accounted for a change of approach.
[335]D4 was sentenced by Tinney J on 20 September 2018.
[336]D4 was not called to give evidence before the jury until 26 September 2018 and the actual s 38 cross examination of D4 did not commence until 1 October 2018.
675 Regarding s 38(6)(b), D4’s impugned PRs tended to exculpate or, at least, minimise the roles of the accused. The likelihood was that the accused in cross examination of D4 would endeavour to get D4 to go even further in that direction and retreat from any PRs that might be problematic for the accused. Given D4’s relationship with each of the accused – brother, cousin, friend – and the thrust of his PRs in ROI 2 and his signed statement, his testimonial account was not likely to be challenged or tested by the accused. Allowing P to test D4’s account through s 38 cross-examination was likely to promote the integrity of the fact finding process by the jury.
676 Regarding s 192(2)(a), P’s cross-examination was likely to add significantly to the length of the trial. P predicted only a couple of days extra but it was not difficult to imagine it exceeding a week. Extra time would be taken up not only by P’s cross examination of D4 but by the “ripple effect” of that cross examination: the evidence adduced in the s 38 cross examination would in all probability occupy further time in questioning of D4 by the accused, in further submissions, closing addresses and my charge. However the key word in s 192(2)(a) is the word “unduly” which the Macquarie Dictionary defines thus: “excessively, inappropriately, improperly, unjustifiably”. Given the importance of D4’s evidence, and the desirability of it being tested, I considered that even a significant increase in the length of the trial by reason of s 38 cross examination of D4 was not excessive, inappropriate, improper or unjustifiable.
677 Regarding s 192(2)(b), it was not unfair to either party or to D4 to permit P to cross examine D4. If the jury found that D4 was telling lies, the risk of them misusing that finding was negligible: it was likely that the jury would reason he was acting on his own initiative, not at the behest of the accused. D4 presented in his ROIs as somewhat egotistical, someone who thought he knew best, someone who might act on his own initiative to try and fashion an account to exculpate the others. That the jury would reason that D4 was acting on his own initiative if it found that D4 was telling lies was likely to be encouraged by P’s evidence of an LD prison cell conversation on 25 December 2016 (SOC 367) in which D4 explained to the others how he had maximised his role and downplayed theirs in ROI 1. Nothing in that LD conversation suggested D4 was spinning a story at the behest of the accused. Further, D4 was being called to give evidence by P, not the accused and P had no intention of suggesting that any alleged lies told by him were told at the request of the accused. Moreover, it would have been unfair to P not to let P challenge unfavourable evidence given by D4. It would also have deprived the jury of the opportunity of seeing his unfavourable evidence tested. And, since P plainly intended to challenge some of D4’s evidence in its closing address, it would have been unfair to D4 not to allow P to cross examine D4 so it could comply with the requirements of the rule in Browne v Dunn and give D4 the opportunity of responding to criticisms of his evidence by P.
678 Regarding s 192(2)(c), D4’s evidence was obviously important evidence because he was a self-confessed party to the alleged conspiracy, having pleaded guilty to the charge.
679 Regarding s 192(2)(d), the charge of conspiring to do acts in preparation for or planning a terrorist act carries a maximum penalty of life imprisonment. The seriousness of the charge, and the fact that, if proven, it was a serious example of the offence in question, supported a grant of leave to P to cross examine D4.
680 Regarding s 192(2)(e), there was no need to adjourn the proceedings – no adjournment was ever sought – because the accused had ample time to deal with a grant of leave to P to cross examine D.
681 There is a divergence of views in the authorities from NSW, on the one hand, and Victoria, on the other,[337] as to whether a trial judge should have regard to the discretions and exclusionary rules in Part 3.11 of the Act in deciding whether to grant leave to a party to cross examine its own witness under s 38. Suffice to say that I did have regard to Part 3.11 and did not consider that the danger of unfair prejudice outweighed the probative value of the evidence to be adduced by P in cross examination of D4.
[337]DPP vGarrett(a Pseudonym) [2016] VSCA 31, [79].
682 As regards the scope of the cross examination that was appropriate, Tables 1 and 2 were helpful in setting the parameters of the cross examination, which consistent with the authorities, included P to adduce evidence from D4 which tended to discredit his unfavourable testimony and/or accredit the version of events for which P contended.
ANNEXURE A
IN THE SUPREME COURT OF VICTORIA
CRIMINAL DIVISION
S CR 2017 0177 (HA)
S CR 2017 0176 (AC)
S CR 2017 0175 (AM)
R V HAMZA ABBAS, ABDULLAH CHAARANI & AHMED MOHAMED
TABLE OF PRE-TRIAL RULINGS ON 17 AUGUST 2018
PART A: EVIDENCE CHALLENGED BY MULTIPLE ACCUSED
VIDEOS
IMAGES AND SCREENSHOTS FROM ACCUSED’S DEVICES
MISCELLANEOUS
PART B: EVIDENCE CHALLENGED BY A SINGLE ACCUSED
IMAGES AND SCREENSHOTS FROM ACCUSED’S DEVICES
SMS/WHATSAPP MESSAGES
LISTENING DEVICE CONVERSATIONS
MISCELLANEOUS
ABBREVIATIONS:
D1 means H. Abbas
D2 means Chaarani
D3 means Mohamed
D4 means I. Abbas
HLN means Hyper Link Number.
LEE means List of Electronic Exhibits dated 20/07/18 which became Exhibit 10. LEE 63, for example, means Item 63 in Exhibit 10.
NAO means not available online
P means prosecution
SIC means Summary of Intercepted Conversations dated 19/7/18
SPO means the Amended Prosecution Summary of Opening dated 19/7/18 & redacted on 1/8/18. SPO [63], for example, means paragraph 63 of the Amended Prosecution Summary of Opening
PART A: EVIDENCE CHALLENGED BY MULTIPLE ACCUSED
VIDEOS
No. Challenged by Impugned evidence Admissible? 1. H ABBAS
CHAARANI
MOHAMEDGeneral argument with respect to 9 videos which P proposes to play to jury. Y (but redact images of actual executions & aftermath & where images are redacted, redact audio too; also no images of children with severed limbs or organs protruding) 2. H ABBAS
CHAARANI
MOHAMED2.0 Video: ‘New IS Video shows Child Soldiers Executing & Beheading 5 Kurdish Fighters’
Location: Samsung mobile phone seized from Chaarani (accessed webpage on 1 & 2/9/16)
LEE: 63
2.1 Showing of child executioners
2.2 Arabic Audio (untranslated)
2.3 Arabic script (untranslated)
2.0 Y
2.1 Y
2.2 Y
2.3 Y
3. H ABBAS
CHAARANI
MOHAMED3.0 Video downloaded from ‘Heavy.com’ page: ‘WATCH: New IS Video Shows Battlefield Dead & Suicide Attacks [ENGLISH]’
Location: Samsung mobile phone seized from Chaarani
LEE: 70
3.1 Untranslated Arabic Audio (including Nasheeds)
3.0 Y
3.1 Y
4. H ABBAS
CHAARANI
MOHAMED4.0 Video: ‘IS 2’
Location: iPhone 6 seized from Mohamed during arrest (web search); Samsung mobile phone seized from Chaarani.
LEE: 80, 259
4.1 IS fighter holding up bloodied stump of arm and speaking to camera
4.2 Hand about to be severed
4.3 Bodies shot at close range
4.0 Y
4.1 Y
4.2 Y
4.3 N
5. H ABBAS
CHAARANI
MOHAMED5.0 ‘Video: A Second Message to America’
Location: Blue hard drive (no brand) located at I. Abbas’s residence
LEE: 166
5.1 - Aftermath of execution - Decapitated body showing severed head (albeit redacted) resting on torso & bloodied stump of neck (2m25s)
5.2 - Images of Barak Obama
5.0 Y
5.1 N
5.2 Y
6. H ABBAS
CHAARANI
MOHAMED6.0 Video: ‘IS – Kill the Helpers of the Devil’
Location: Blue hard drive (no brand) located at I. Abbas’s residence
LEE: 169
6.1 Execution of people by firing squad (2m7s approx.)
6.0 Y
6.1 N
7. H ABBAS
CHAARANI
MOHAMED7.0 Video: ‘Address by Musa Cerantonio – The Filth of nationalism’
Location: I. Abbas’ Silver USB drive (unbranded)
(stored in favourites folder on 19/8/13)
LEE: 177
7.0 N 8. H ABBAS
CHAARANI
MOHAMED8.0 Video: ‘Flames of War 2’
Location: I Abbas ‘Black minicomputer tower with Seagate hard drive’
(accessed on YouTube on 22/12/16)
LEE: 186
8.1 Images of bloodied children
8.2 Presentation of knives to necks of victims
8.0 Y
8.1 Y (but no images of severed limbs or protruding organs)
8.2 Y
9. H ABBAS
CHAARANI
MOHAMED9.0 Video: ‘Remote 6fb…’
Location: On iPhone 6 seized from Mohamed
(accessed 24/6/16)
LEE: 193
9.1 Images of bloodied children
9.0 Y
9.1 Y (but no images of severed limbs or protruding organs)
10. H ABBAS
CHAARANI
MOHAMED10.0 Video: ‘You Must Fight Them O Muwahhid’
Location: On iPhone 6 seized from Mohamed during arrest
(accessed on 28/11/16)
LEE: 231
10.1 Tutorial on knife attacks
10.2 Actual execution of running man by detonation of explosives strapped to him
10. Y
10.1 Y
10.2 N (but P may show a still image which gives an idea of size of explosion)
11. H ABBAS
CHAARANI
11.0 Titles of 20 plus YouTube videos
(Some not available online (NAO) so Crown seeks to lead titles only)
Location: various
11.1 ‘SLICING HEADS V SLICING BREAD’
Location: Mohamed’s iPhone
(downloaded on 21/12/14 )
LEE: 13
11.2 “99% OF ISLAMIC STATE (MEMBERS) ARE MUSLIMS, BELIEVERS, DEVOUT, PIOUS & SINCERE”
Location: Mohamed’s iPhone 5
(downloaded 27 May 2015)
LEE:38 (NAO)
11.3 ‘I AM A MUSLIM, ASK ME ANYTHING – MUSLIM DEFENDS ISLAM ACROSS AMERICA ’
Location: Hamza’s iPhone 6
(downloaded 4 December 2016)
LEE:109
11.4 ‘SELLING ONE’S SOUL FOR THE PLEASURE OF ALLAH – IMAM ANWAR AL-AWLAKI’.
Location: Hamza’s Xion computer tower
(accessed 13/12/16)
LEE: 121 (NAO)
11.5 ‘SYRIA - SUPPORTS JABHAT AL-NUSRA, AUSTRALIAN ISLAMIST MUSA CERANTONIO GLORIFIES JIHAD ’
Location: Ibrahim’s silver USB drive
(downloaded 25 June 2013).
LEE: 173
11.6 ‘BRITISH WOMAN JOINING JIHAD IN SYRIA’
Location: Ibrahim’s silver USB drive
(downloaded 24 July 2013).
LEE: 174
11.7 ‘IS FIGHTER EXPLAINS HE JOINS JIHAD IN SHAM BECAUSE WANT TO PROTECT UMMAH & RE-ESTABLISH KHILAFAH’
Location: Ibrahim’s silver USB drive
(downloaded 4 August 2013).
LEE: 175 (NAO)
11.8 ‘TRAILER JABHAT AL-NUSRA TRAININGS CAMPS IN SHAAM’
Location: Ibrahim’s silver USB drive
(downloaded 12 August 2013).
LEE: 176 (NAO)
11.9 ‘THE FILTH OF NATIONALISM’
Location: Ibrahim’s silver USB drive
(downloaded 19 August 2013).
LEE: 177
11.10 ‘TO A MUJAHID’S WIFE’
Location: Ibrahim’s silver USB drive
(downloaded 8 September 2013).
LEE: 180 (NAO)
11.11 ‘NEW ANWAR AL-AWLAKI REFUTES KHALID YASIN FACEBOOK MUJAHIDEEN’
Location: Ibrahim’s silver USB drive
(downloaded 11 November 2013).
LEE: 183 (NAO)
11.12 ‘WHY THE WORLD HATES AMERICA - SHAYKH ANWAR AL AWLAKI’
Location: Ibrahim’s black mini computer with Seagate drive (downloaded on 2 December 2016 at 1.12pm and 1.16pm).
LEE: 185
11.13 ‘A VERY AMAZING LECTURE BY IMAM ANWAR AL-AWLAKI ON DEATH’
Location: Ibrahim’s black mini computer with Seagate drive (downloaded on 2 December 2016 at 1.12pm and 1.16pm).
LEE:185
11.14 ‘ABU YASEER - SALIL SAWARIM (CLASHING OF SWORDS) – A NASHEED FOR THE RELUCTANT’
Location: Ibrahim’s black mini computer with Seagate drive (downloaded on 22 December 2016).
LEE:186
11.15 ‘ENGLISH SPEAKER IN IS ‘FLAMES OF WAR’ PROPAGANDA VIDEO’
Location: Ibrahim’s black mini computer with Seagate drive (downloaded on 22 December 2016).
LEE:186
11.16 ‘FLAMES OF WAR #2’
Location: Ibrahim’s black mini- computer with Seagate drive (downloaded on 22 December 2016).
LEE:186
11.17: ‘ENFORCING SHARIA IN RAQQA: THE ISLAMIC STATE (PART 3)’
Location: Mohamed’s iPhone 6 seized during arrest
(accessed 2 October 2016).
LEE:205
11.18 ‘DYING UPON THE SHAHADA – EMOTIONAL TRUE STORY – SHAYKH AHMAD JIBRIL’
Location: Mohamed’s iPhone 6 seized during arrest
(accessed 26 October 2016).
LEE 209
11.19 ‘AL MALHAMA – IMAM ANWAR AL AWLAKI ’
Location: : Mohamed’s iPhone 6 seized during arrest
(accessed 30 October 2016).
LEE:211
11.20 ‘VIRTUES-OF-MARTYRS BY [ IMAM ANWAR AL AWLAKI ]
Location: : Mohamed’s iPhone 6 seized during arrest
(accessed 30 October 2016).
LEE:211
11.21 ‘AL MALHAMA - IMAM ANWAR AL AWLAKI ’
Location: : Mohamed’s iPhone 6 seized during arrest
(accessed 30 October 2016).
LEE:211
11.22 ‘STORY OF THE BULL SHAYHK IMAM ANWAR AL AWLAKI (R)’
Location: : Mohamed’s iPhone 6 seized during arrest
(downloaded 19 December 2016).
LEE:247
11.23 ‘IMAM ANWAR AL AWLAKI WARNING TO OBAMA- FROM GRAVE PREPARE FOR DEATH’
Location: Mohamed’s iPhone 6 seized during arrest
(downloaded 19 December 2016).
LEE:249
11.24 ‘CHARACTERISTICS OF MODERATE MUSLIMS IMAM ANWAR AL AWLAKI’
Location: Mohamed’s iPhone 6 seized during arrest
(downloaded 22 December 2016).
LEE: 256
11.0 Some Y, some N (see below)
11.1 N
11.2 Y
11.3 N
11.4 Y
11.5 N
11.6 Y
11.7 Y
11.8 Y
11.9 N
11.10 Y
11.11 Y
11.12 Y
11.13 Y
11.14 Y
11.15 Y
11.16 Y
11.17 Y
11.18 Y
11.19 Y
11.20 Y
11.21 Y
11.22 Y
11.23 Y
11.24 Y
12. Description of Redacted Parts of the above 9 Videos Y 13. Intermittent untranslated Arabic Audio and Script in the 9 Videos Y
(f)
IMAGES AND SCREENSHOTS FOUND ON ACCUSED’S DEVICES
No. Challenged by Impugned evidence Admissible ? 14. H ABBAS
CHAARANI
MOHAMEDNumerous Images Y (but redact images of actual executions & aftermath; also no images of children with severed limbs or organs protruding) MISCELLANEOUS
No. Challenged by Impugned evidence Admissible? 15. H ABBAS
CHAARANI
MOHAMEDReferences to the Fatwa of Sheik Al Adnani Al-Shami issued on 22/9/14
SPO: [16]
Y 16. H ABBAS
CHAARANI
MOHAMEDReferences to Osama Bin Laden and Abu Bakr Al Baghdadi
SPO: [22]Y 17. H ABBAS
CHAARANI
MOHAMEDEvidence relating to three trips to Clonbinane
SPO: [89] – [93], [108]–[115]Y 18. H ABBAS
CHAARANI
MOHAMEDExpert Evidence of FA Denis Scott (and Dr Gully)
P indicated on 7/8/18 that this matter is likely to resolved 19. CHAARANI
MOHAMED19.0 Arunta call on 1/9/17 between Mohamed and unidentified male in which he refers to:
19.1 the state of Charaani’s case (p4. Lines 1-3)
19.2 purchasing red Ramset charges for D4, not Arif, as he told police in ROI
SPO: [236]
LEE: : (N/A)
19.0 Y &N (see below)
19.1 N
19.2 Y (including all p4 save lines 1-3 and all of unredacted portion of p5)
(g)
PART B: EVIDENCE CHALLENGED BY A SINGLE ACCUSED
IMAGES AND SCREENSHOTS FROM ACCUSED’S DEVICES
No. Challenged by Impugned evidence Admissible? 20. H ABBAS
Screenshot of ‘Heavy.com’ article
(screenshot taken on 7.11.16)
Location: H. Abbas’ iPhone 6s
LEE: 107Y 21. H ABBAS
Image of ‘Martyred’ cousin Nabil Abbas sent by H. Abbas on 16/5/16 to Nabil’s sister Nabila in WhatsApp conversation
Location: H. Abbas’s seized Samsung SM-G9001 mobile phone
LEE: 98
Y 22. H ABBAS
Screenshot of Facebook page showing ‘Tinny Terrorists’.
(screenshot taken 18/5/16)
Location: H. Abbas’s seized Samsung SM-G9001 mobile phone
LEE: 99N
23. MOHAMED Image of a firearm (AK47) sent from Mohamed’s phone via WhatsApp
SPO: [21]
LEE: 18P abandoned this item of evidence on 13.8.18 24. MOHAMED Images stored on mobile phone of a person in a park waving a black flag
Location: Mohamed’s iPhone 6
LEE: 189Y SMS/WHATSAPP MESSAGES
No. Challenged by Impugned evidence Admissible? 25. H ABBAS
Text message received by Hamza Abbas on 22/03/2015 re it being consistent with the Prophets teaching for IS to destroy mosques
Location: H. Abbas’s seized Samsung SM-G9001 mobile phone
LEE: 96N
26. MOHAMED WhatsApp messages between Mohammad and ‘Esam’ about the Pulse nightclub massacre in Orlando, Florida
Location: iPhone 6 seize from Ahmed Mohamed
LEE: 191N 27. MOHAMED Text messages between Omar Elhawli and Mohamed re Muslims taking oath of allegiance to Australia
Location: Mohamed’s iPhone 5
SPO: [17]-[19]
LEE: 14Y 28. MOHAMED Text messages on 17/12/16 between Mohamed and his wife Balqisa Sheikh re Mohamed constantly being away from home
Location: Mohamed’s iPhone 6
LEE: 245
Y LISTENING DEVICE CONVERSATIONS
No. Challenged by Impugned evidence Admissible? 29. H ABBAS 29.0 Intercepted cell conversation on 23/12/2016.
In the course of conversation, D1 indicates he had something on his phone that investigators might be interested in, namely:
29.1 nasheeds
29.2 some searches
29.3 D1 also says he ‘thinks’ he was arrested for ‘knowing’
Location: LD transcript pp 780 – 783 (HLN 19009 for audio and 19610 for transcript)
SPO: [234]
SIC: 352
29.0 Y & N (see below)
29.1 Y
29.2 Y
29.3 N
MISCELLANEOUS
No. Challenged by Impugned evidence Admissible? 30. H ABBAS PDF of Fatwa
Location: H. Abbas’s seized Samsung SM-G9001 mobile phone
LEE: 97Y 31. H ABBAS Nasheed and web searches
Location: H. Abbas’s seized Samsung SM-G9001 mobile phone
LEE: 102-106Y 32. H ABBAS Firearms licence application
Location: H. Abbas’s Xion brand computer tower
LEE: 123Y 33. H ABBAS Alleged incriminating conduct of Hamza Abbas Y
34. CHAARANI
Chaarani’s two thwarted attempts to travel overseas on 9.7.15
SPO [37]-[46]
LEE: 39-46Y 35. CHAARANI
Comments made by Chaarani at time of arrest
SPO [211]-[213]Y 36. CHAARANI
36.0 References to firearms
36.1 (and gloves)
SPO: [129 – 131] and [219]36.0 Y
36.1 N
37. MOHAMED 37.0 Mohamed’s thwarted attempt to travel overseas on 27.5.15 with Cheikh-Ibrhahim: &
37.1 Cheikh-Ibrahim’s statements to ABF about their intended travel.
SPO: [23]-[33]
LEE: 1-38
37.0 Y
37.1 N
38. MOHAMED Evidence of support for violent jihad between May and December 2014
Location: Mohamed’s iPhone 5
SPO: [10]-[15]
LEE: 1-14
Y 39. MOHAMED Searching for IS on ‘Heavy.com’ between 12/11/16 & 18/11/16
Location: Mohamed’s iPhone 6
LEE: 222-227
Y
1
10
0