R v Azari (No 10)

[2018] NSWSC 1585

Supreme Court

New South Wales

Medium Neutral Citation:	R v Azari (No 10) [2018] NSWSC 1585
Hearing dates:	18 and 19 October 2018
Date of orders:	22 October 2018
Decision date:	22 October 2018
Jurisdiction:	Common Law - Criminal
Before:	N Adams J
Decision:	The accused’s application to discharge the jury made on 18 October 2018 is refused.
Catchwords:	CRIMINAL LAW – application to discharge jury – evidence upon which inferences could be drawn that the defendant had committed a prior criminal act – whether evidence relevant – whether evidence adduced for tendency reason – whether evidence should be excluded under s 137 for being unfairly prejudicial – whether any risk of unfair prejudice can be sufficiently cured by jury direction
Legislation Cited:	Criminal Code Act 2005 (Cth), Sch, s 101.6 Evidence Act 1995 (NSW), ss 55, 97, 101, 137, 184, Pt 3.6, Dictionary
Cases Cited:	Alqudsi v The Queen (2016) 258 CLR 20; [2016] HCA 24 Colby v The Queen [1999] NSWCCA 261 Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 El-Hilli v R; Melville v R [2015] NSWCCA 289 Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 303 Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 Harriman v R (1989) 167 CLR 590; [1989] HCA 50 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 L'Estrange v R (2011) 214 A Crim R 9; [2011] NSWCCA 89 O’Leary v The King (1946) 73 CLR 566; [1946] HCA 44 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 R v Azari (No 2) [2017] NSWSC 515 R v Glennon (1992) 173 CLR 592; [1992] HCA 16 R v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97 R v Quach (2002) 137 A Crim R 345; [2002] NSWCCA 519 RG v R [2010] NSWCCA 173 RWC v R [2010] NSWCCA 332 Strachan v R [2017] NSWCCA 322 The Queen v Bauer (a pseudonym) [2018] HCA 40
Category:	Procedural and other rulings
Parties:	Regina (Crown) Omarjan Azari (Accused)
Representation:	Counsel: L Crowley with B Power (Crown) B Hughes SC with M Curry (Accused)   Solicitors: Commonwealth Director of Public Prosecutions (Crown) Ryan & Payten Criminal Law Specialists (Accused)
File Number(s):	2014/274649
Publication restriction:	This is a redacted version of the judgment in order to comply with the orders made on 11 October 2018 pursuant to the Court Suppression and Non-Publication Orders Act 2010 (NSW): R v Azari (No 8) NSWSC 1647

Judgment

Background

1. On 11 October 2018, Omarjan Azari pleaded not guilty before me to a charge brought contrary to s 101.6(1) of the Schedule to the Criminal Code Act 2005 (Cth). It is alleged that the accused:

“On 15 September 2014, at Parramatta, in the State of New South Wales, did an act in preparation for, or planning, a terrorist act or acts, namely did participate in a telephone conversation with another person, namely Mohammad Ali Baryalei or another unknown person, in preparation for, or planning, a terrorist act or acts.”

2. A jury was empanelled and the trial has proceeded since that date. A previous trial had proceeded for some days in April 2017 but had to be discharged due to media publicity: R v Azari (No 2) [2017] NSWSC 515.

3. The Crown case is that during the 15 September telephone conversation the accused and Mr Baryalei discussed a plot to commence terrorist acts in Australia and that the accused agreed to what was suggested by Mr Baryalei. The defence case is that he did not have the requisite intention at the time and was trying to put Mr Baryalei off. A crucial matter for the jury’s determination is what the accused’s state of mind was at the time of his participation in the telephone call. Mr Barylaie was at that time a senior Australian figure with Islamic State. He is now presumed dead.

4. On 17 October 2018, evidence was given by a crucial witness in the Crown case known for the purpose of these proceedings as Ahmed Hussain. Mr Hussain has pleaded guilty in relation to a separate terrorism-related offence and is currently in custody. He received a significant discount on his sentence for agreeing to give evidence against Mr Azari. It has been foreshadowed that there will be an attack on his credibility in this trial. Mr Hussain had not been available as a witness at the time of the first trial.

5. Mr Hussain commenced his evidence at approximately midday on Wednesday, 17 October 2018. After he had given evidence for about an hour an issue arose as to whether he knew one of the jurors. Although the Crown consented to that juror being discharged, it opposed the application made by Mr Hughes SC, who appears for the accused, that the jury be discharged. I ordered at that time that the trial proceed with a jury of eleven.

6. Mr Hussain resumed his evidence at approximately 11:00 am on 18 October 2018 and gave evidence until 1:00 pm with a short break for morning tea.

7. When court resumed at 2:00 pm, Mr Hughes made a further application for a discharge of the jury, this time based on certain evidence which had been given by Mr Hussain said to be inadmissible. The complaint was that the accused was not on notice that the evidence would be adduced and also that, in any event, it was inadmissible tendency evidence and no tendency notice had been filed. The jury was sent home and submissions made that afternoon. The application was stood over part-heard until 18 October 2018 in order for, inter alia, the transcript to be made available. Following further argument on Friday 19 October 2018, I reserved my decision until this morning.

The Crown case

8. The Crown case is that at the time of the telephone call the accused and a number of other Sydney men were members of a “shura” - an Arabic word meaning a consultative council or consultative body. It is alleged that these men shared a radical, militant, Salafi Islamist and anti-Western ideology and were supportive of Islamic State and other militant Islamist groups pursuing jihad by violent means in the name of Islam. These men are identified and, on the Crown case, were working in pursuit of common aims. Those aims included either travelling to Syria to fight for Islamic State or Jabhat Al-Nusra or helping others to so travel. Another purpose of the shura was to provide financial support to those wishing to travel. The Crown case is that a third purpose of the shura was to engage in communications concerning planning or preparation of the commission of a domestic terrorist attack or attacks.

9. Since the commencement of the trial, the jury has heard evidence from an expert in Middle Eastern history and politics and has been provided with a large number of surveillance evidence summaries and transcripts. They have listened to a number of other telephone calls, including between the accused and Mr Baryalei, consistent with the accused holding the beliefs alleged by the Crown.

10. Documents have been tendered by consent which establish that other members of the shura, known to the accused, flew to Syria and that the accused was about to likewise make the trip but his passport was cancelled. There is also evidence before the jury that the accused sent money to Syria and an indemnified witness has given evidence about that.

11. Significantly, the accused has made a number of formal admissions pursuant to s 184 of the Evidence Act1995 (NSW).

12. The relevant admissions concerning Mr Baryalei are as follows. About July 2013 Mr Baryalei joined the terrorist organisation Islamic State and was still a member throughout September 2014. He participated in combat activities in Syria and Iraq against Syrian and Iraqi government forces. From mid-2013 Mr Baryalei was also involved in assisting Australian citizens to enter Syria from Turkey to join Islamic State. In September 2014 Mr Baryalei held a senior position within Islamic State such that he could give or relay orders on behalf of Islamic State. Mr Baryalei held very extreme religious and ideological beliefs supportive of Islamic State and was willing to die for the cause being espoused by Islamic State. A warrant for the arrest of Mr Baryalei was issued in January 2014 with respect to his activities in Syria and Iraq. A further warrant was issued in November 2014 with respect to his participation with the accused in the telephone conversation on 15 September 2014. The accused knew Mr Baryalei from at the latest 16 September 2012 when they were depicted in a video recording together in street preaching activities in Sydney.

13. The formal admissions concerning Agim Kruezi are as follows. On 10 September 2014 (five days before the relevant telephone conversation) joint counter terrorism officers executed a search warrant at Mr Kruezi’s home in suburban Brisbane. Searching officers located a shortened 22 calibre rifle firearm and ammunition, compound bow and arrows, machetes and other knives and a jerry can containing 10 litres of petrol and a collection of glass bottles and corks suitable for use in the manufacture of improvised incendiary devices together with the Islamic State flag, documents and electronic items contained electronic documents, video and audio recordings and photographs consistent with Mr Kruezi holding a radical violent Islamist ideology. Mr Kruezi was arrested and subsequently charged by police with terrorism offences alleging he did acts preparing for or planning a terrorist act and also in connection with his attempt to travel in March 2014 in respect of doing an act preparatory to entering a foreign country, namely Syria, to engage in hostile activate, namely participating as a member of Islamic State or Jabhat Al-Nusra in combat activities in Syria against Syrian government forces.

14. There is other evidence in the Crown case of surveillance footage and intercepts to show that Mr Kruezi flew from Brisbane to Sydney on 15 August 2015 and spent time in the company of the accused and other members of the shura before returning to Brisbane on 27 August 2015.

15. The jury has been provided with a copy of the transcript of the relevant telephone conversation on 15 September 2014, as well as a number of other intercepted and covertly recorded calls. The conversation was conducted in a mixture of English, Arabic and Dari languages. The two men discussed, amongst other subjects, a plan for multiple future attacks in which random members of the public would be killed in Australia and the role the accused would take. It is the Crown case that the two men intended that the planned attacks would advance a political, religious or ideological cause and that it was intended that the planned attacks would cause fear to members of the public and coerce or influence by intimidation governments in Australia and elsewhere.

16. Some of the translation is disputed and two interpreters have already given evidence in the Crown case on this issue. The jury has been provided with different versions of the transcripts. The present application does not turn on any of those translations. Therefore, for the purpose of this judgment, I propose to extract portions of the translated transcript relied upon by the Crown.

17. The telephone conversation goes for 19 minutes and the transcript runs to 11 pages with a small font. I do not propose to set it out in full for the purposes of these reasons. The relevant portions for the consideration of this application are as follows.

18. After initial greetings Mr Baryalei says to the accused, “…I got some good news for you.” The accused responds, “Yeah?” Mr Baryalei then continues, “Remember, remember we discussed about, you know what we discussed?” The accused then responds “Yeah, yeah, yeah.”

19. Mr Baryalei then states further: “We’re gonna do it but… differently.” The accused allegedly responds “Differently?” and when he is informed that “…It’s gonna be different. It’s gonna be ah a kind of… in the name of Allah”. Mr Baryalei then appears to recite a short prayer. The accused responds “Amen!” Mr Baryalei then states: “Listen, it’s gonna be like this. I need you first of all to get umm a telephone and on that telephone I need you to get telegram. I’m gonna get a telephone at this end. I’m gonna set up telegram on this end and then…” The accused responds, “Yeah”.

20. Mr Baryalei continues: “…we’re gonna speak we’re gonna speak through – we’re gonna speak through telegram, Allah wiling, because telegram, apparently, praise be to Allah is very good, but um…” To which the accused replies, “Yeah?” Mr Baryalei then states, “Yeah, like, let – let me know what you’ll be doing. I need you and I need someone else maybe two or three or I might hook you up with another two or three brothers…” The accused’s response is “Yeah.”

21. Mr Baryalei continues: “...that side. And um it’s better – it’s better if we don’t if we don’t send anyone but it will be better if we set it up over there with you guys. What you guys need to do is just pick any random unbeliever...” to which the accused responds “Yeah”. Mr Baryalei continues, “Finish him/her. When finished put the flag of the State on the background, put our flag, and then I need that video here. I’m, gonna get the ‘Al-Furqan’ boys to work on that video and start posting up videos… here the Americans send their planes and things like that to kill people, we want to send them a message that…”, to which the accused replies, “Yeah.”

22. I note here that the reference to the Al-Furqan boys is a reference to the media unit of Islamic State.

23. Mr Baryalei continues: “…that as you kill our people we also will kill your people one by one. As you send your people here to kill us, we tell them that we have people in your countries, as you continue to kill us and continue to send your people here, we have also people there that do kill your people one by one. Let their people rise against their ah, ah their governments, man. You know what I mean?”, to which the accused responds: “Yeah, yeah. Allah willing. Yeah.” Mr Baryalei then continues that, “I need, I need, I need, I need boys. I need you. I - I need someone that has heart. You know what I mean? Someone that…(indistinct)...”

24. The accused’s next answer is the first time he provides an actual response rather than simply agreeing with what is suggested by Mr Baryalei. He states:

“Look ah”, “A brother wanted to do this work, yeah?”, “He prepared two persons, he completely prepared everything, and…but two days ago he got raided, everything was raided.”

25. When Mr Baryalei asks how police learned of the plan the following exchange occurs:

“[Accused]:    Glory be to Allah, so far I have no clue how they learnt about it, praise be to Allah, but everything was planned well, planned well, and the two unbelievers who were working for the government..(indistinct)… everything was planned. But glory be to Allah, this week, this week, he wanted to do this operation this week, but he got raided two days ago. For this reason, now here…

[Baraylei]:   Who was this person?

[Accused]:    This brother was from Brisbane, he has had lost his passport and he was very much with us in religion… - and he was a …. revert as well.

For this reason, it was better for them to ah ah…he also wanted to send them a message…the thing that you just mentioned, glory be to Allah, he wanted to do this work.”

26. I pause here to note that there is no dispute that this is a reference to the arrest of Agim Kruezi on 10 September 2014 consistent with the formal admission referred to above. There is no dispute that Mr Kruezi was in Sydney between 15 and 27 August 2014 during which time he met and associated with the accused and other members of the shura on multiple occasions. What is in dispute is whether when the accused told Mr Baryalei that he knew of Mr Kruezi’s plan that this was on the basis that he had discussed it with Mr Kruezi on his recent trip to Sydney.

27. The accused has indicated that he will be giving evidence at the trial and it is anticipated that his evidence will be that he only knew of Mr Kruezi’s plan from media reports following Mr Kruezi’s arrest. The accused’s defence is that he had no intention of doing what Mr Baryalei had asked of him and was merely offering this information to him to give the impression that he was willing to do it when in fact he had no intention of being involved in any domestic terrorist attack or attacks.

28. Mr Baryalei then states in the telephone call, “I want you to do this work, but I want this work to be continuous. I don’t want you to get arrested but want to do continuously and every month to terminate five, six, seven people every month…” The accused responds that, “The problem is that here the boys who have heart, yeah, all of them are under surveillance, like extreme surveillance…” and, “My situation is the same. …” He says that, “…you have to give us, like, two months because… Australian terror level has gone up, yeah?”

29. There is further discussion in which the accused offers some suggestions of how it could be done. He mentions the high level of surveillance and suggests “postponing” it for a couple of months (or “abandoning” it for two months). The accused then states that he knows some boys “with heart” and Mr Baryalei asks him about them. Mr Baryalei states that he only wants, “three to five people but good quality people, trustworthy people. You know what I mean? To which the accused replies:

“Yeah yeah I know exactly what you mean Allah willing I swear by Allah, that brother had planned everything very well, but his plan is known to us, Allah willing, we have got his plan.”

30. Mr Baryalei later tells the accused that his pledge of allegiance to Islamic State will be accepted and the order is that they are to stay in Australia and not come over to fight. The accused’s response is “Allah willing brother, I have no problem with that. Praise be to Allah.” He says to Mr Baryalei, “Give two months, to get another good telephone, to get out of being under surveillance… After that everything will be easy.” He later states

“Amen amen but other than that praise be to Allah what you said, Allah willing, ah been thought of the brothers already. And of course we’re gonna accept the order of the Commander

So, Allah wiling, yeah it’s all good man…..

..Ill talk to the brothers that are with me amongst the Shura and…..I’ll tell that that’s an order from the Commander.”

31. There is then a conversation about how many boys were in the accused’s shura to which he replied that there were “about 17”. Mr Kruezi’s name is again raised and the following exchange takes place:

“[Baryalei]:   How did he get caught, Bro?

[Accused]:   That’s that’s what we’re trying (indistinct).

[Baryalei]:   You know what I mean?

[Accused]:    The Shura that he has is the one – the boys are -the ones are with that brother. Remember that – the big brother?

[Baryalei]   Yeah.

[Accused]   It’s him and just four or five brothers. That’s about it – the ones that, actually, that we, got involved with this plan. You know what I mean?”

32. There is further conversation about how many boys are needed and the accused states:

“No worries, Allah willing, Allah willing. This work, Allah willing, like I said, gimme like two months (indistinct)…everything and Allah willing

And this – whatever the Commander said, we’re happy with it, praise be to Allah.”

33. It is against this background that Mr Hussain’s evidence is to be considered. He is one of the last witnesses in the Crown case. A number of calls have already been played in which Mr Hussain spoke to others, including the accused.

34. At the time of the discharge application, Mr Hussain had not concluded his evidence. It is anticipated that he will give evidence that on 16 September 2014 (the evening after the telephone call on 15 September) the accused told him about the conversation he had had with Mr Baryalei the previous evening. The accused advised him that the leadership of Islamic State had accepted the oath of allegiance to Islamic State they had each pledged and had approved and ordered them to remain in Australia to bring about terrorist attacks targeting random members of the Australian public and foreign tourists. They were to arrange for those persons to be killed in front of the Islamic State flag. The plan was for that they would arrange for other persons to carry out the attacks as it was suspected they were under surveillance by Australian authorities

The evidence of Mr Hussain - The Crown case statement

35. A detailed Amended Crown case statement was filed on 22 August 2018. It included a summary of the evidence to be adduced at the trial. Prior to the first trial in this matter in April 2017 and again prior to this trial, a number of objections were made to material described in the Crown case statement. Some of this material was not led following these objections and I made various rulings in relation to other objections.

36. There was no application made to exclude any of the evidence to be given by Mr Hussain prior to him being called to give evidence in this trial.

37. The Crown case summarised the evidence to be given by Mr Hussain regarding Mr Kruezi [238]-[241] and [289]-[290]. It discloses that the Crown case is that Mr Hussain knew Mr Kruezi. He met with him when he came to Sydney in 2014. During that time Mr Kruezi asked him he knew anyone that could get a gun. He told Mr Kruezi that he had not enquired about anything like that before, and was not sure, but that it was possible. He did not know why Mr Kruezi needed it. The only other person present was Ali Al-Talebi, who was another member of the shura and the person seen on CCTV when the accused changed the money to be sent to Syria at a money exchange.

38. The next time Mr Hussain saw Mr Kruezi was with the accused and Mr Al-Talebi. The Crown case statement summarises Mr Hussain’s anticipated evidence (with footnotes to paragraphs of the relevant statements) as: “The accused indicated that they needed to help prepare for a terrorist attack in Queensland, intended to also result in KRUEZI’s death, by assisting KRUEZI in obtaining a firearm. Mr Hussain was told that some of the money that the Shura had provided to KRUEZI in connection with his attempted travel to Syria (in early 2014) was used to buy the firearm, and that this use of those funds had been authorised by the Shura.”

39. The Crown case statement goes on to state that Mr Hussain was made aware that evening by the accused that the accused was involved in trying to source a firearm for Mr Kruezi. At some stage in August 2014, Mr Hussain was made aware by either the accused or Mr Al-Talebi that Mr Kruezi had been successful in obtaining a firearm.

40. The last time Mr Hussain saw Mr Kruezi was with others at a prayer hall in Granville. Although Mr Hussain was invited to a farewell dinner for Mr Kruezi that night, he declined the invitation to join them. Mr Hussain assumed that Mr Kruezi had by then already acquired the firearm and that he was being farewelled as it was expected that he was returning to Brisbane and that he would be killed in the course of carrying out the planned terrorist attack. The accused told Mr Hussain that Mr Kruezi had the “best plan” as he was intending to use the firearm in a public space and “just start spraying”, which Mr Hussain took to mean that he would try to kill as many members of the public as he could, as well as targeting police.

The evidence of Mr Hussain at the trial

41. The application to discharge the jury is based on the evidence Mr Hussain has given about Mr Kruezi. It is to be found at pages 323-327 of the transcript.

42. At pages 323-325 Mr Hussain gave evidence of his knowledge of Mr Kruezi and the meeting with him at Mr Hussain’s home which he states was either before or after Ramadan (given the surveillance footage it was clearly in August 2014).

43. He gave evidence of Mr Kruezi asking him for a gun and he was then asked the following questions:

“Q.   Did he say why he wanted to get a firearm?

A.    No.

Q.   At that time, did you know of any persons who might be or through the Shura could arrange to get a firearm?

A.   I don’t think it would’ve been hard. However, yes, the - we could’ve, yeah, yes.

Q.    Any particular persons?

A.    I’ve stated in my statements. However, I refuse to mention the names for fear of reprisals to myself or my family.”

44. The questioning then shifted to the next and last time he saw Mr Kruezi. It was at a prayer hall in Granville. The accused and Mr Al-Talebi were present.

“Q.   What happened when you saw him on this time?

A.   I was informed by the accused that this guy having ‘quote’ the best plan to - when I asked him, ‘What are you talking about’ and he said that Kruezi wanted to - once we had access to a firearm.. to get that, go to Queensland and just carry out an attack.”

45. It is to be noted that the above answer had to be replayed in court five times in order to revise and correct the transcript as the recording was difficult to understand clearly. Counsel agreed to the extracted words extracted above. There were then some further questions to which Mr Hussain replied that there was no further conversation about the firearm and then the following exchange occurred:

“Q.      Why was the accused telling you this?

A.   I don’t know. I just - because I was a member of the Shura and to him I could be someone who he could trust. Other than that, I really don’t know.

Q.      Was there any discussion about what a [sic] Shura might do?

A.   He did state that we need to help him and that was pretty much it. As to what the Shura was going to do in particular, there was no discussion of that.

Q.    Just in relation to you said to do an attack back in Queensland what the accused had told you was the purpose he wanted the firearm?

A.       Yes.

Q.      That is Mr Kruezi wanted the firearm?

A.      Yes.

Q.   Did he say anything further about why Mr Kruezi wanted the firearm?

A.      No.

Q.   After that time were you involved any further in any attempt or plan to get the firearm?

A.      No.

Q.      What about the accused?

A.   Eventually Kruezi did get a firearm. As to the exact means or exactly how I’m not sure about that.

Q.    Are you able to tell us if it was with the assistance of The Shura?

HUGHES:    What - I don’t--

H. HONOUR: He doesn’t press the objection I think he’s going to wait.

CROWN PROSECUTOR CROWLEY:

Q.   I don’t want you to go into specifics in relation to the matter you mentioned earlier, are you able to tell us whether it was with the assistance of The Shura?

A.      Yes.

Q.   Just in terms of Mr Kruezi had The Shura assisted him previously in relation to an attempt to travel?

A.       Yes.

Q.       By providing him with money?

A.       Yes.”

The application to discharge the jury

46. The initial basis for the application to discharge the jury was that the Crown had adduced evidence that went beyond what it had indicated it would lead from Mr Hussain. A letter dated 17 October 2017 from the CDPP to the accused’s solicitor was tendered to show the limited scope in relation to which it was anticipated the Crown would lead evidence from this witness. A more recent letter dated 7 March 2018 was tendered by the Crown enclosing two statements of Mr Hussain dated 25 January 2018 and 23 February 2018. The Crown also pointed to the footnotes in the Crown case statement indicating where in those statements served on the accused the proposed evidence could be found.

47. The secondary basis for the discharge was that the evidence adduced is evidence of an uncharged act in preparation of a previous terrorist act, suggesting that it was the accused who obtained the gun for Mr Kruezi. It was said that this evidence could only be led for a tendency purpose. No tendency notice was ever received as required under s 97 of the Evidence Act and further, it was argued that it would have been excluded by the tendency admissibility rules in any event, specifically under s 101 of the Evidence Act. It was submitted that no directions could be given to cure the prejudice of such evidence being given. It was also submitted that the accused proposes to rely upon good character evidence to the extent that he had never been involved in a violent act.

48. Although it was conceded that Crown would have been entitled to cross-examine the accused and put to him the prior inconsistent version that he gave to Mr Hussain, that only went so far as knowing about the plan. It was argued that the suggestion that the accused was involved in the planning of the previous attack went well beyond this and was evidence of bad character that was inadmissible.

49. Mr Hughes subsequently filed written submissions in support of the application. It was again conceded that the evidence concerning the accused’s knowledge of the plan was relevant to rebut the anticipated defence case and anticipated evidence of the accused that his knowledge of the plan came indirectly from reports in the media. The problem, it was submitted, was that the evidence led went much further than this.

50. It was submitted that the evidence in relation to the weapon was not relevant to the accused’s state of mind and invited the jury to engage in impermissible tendency reasoning: that he had a tendency to act in preparation for terrorist acts.

51. It was further submitted that the evidence from Mr Hussain that the shura should help Mr Kruezi in furtherance of his plan and that they did so by allegedly providing him with a firearm does not have sufficiently probative value to justify its admission given the obvious danger of unfair prejudice that arises from the admission of the evidence.

52. The crux of the application was that the evidence cannot be unheard and that the effect cannot be known. It cannot be cured by direction otherwise that would be a simple answer to every time something that should not have happened during trial occurs. The evidence goes further than the accused’s knowledge of the plan – it goes to his active involvement in the carrying out of a domestic terrorist act in Australia by supplying the weapon; whether personally or through the shura of which he is a member. It was submitted that that alleged involvement is even more serious than what is alleged here.

53. The accused intends to call character evidence, that is, whilst he has pleaded guilty to being involved in the money side of supporting Islamic State, he is otherwise of good character. It was said that the evidence about his knowing involvement in another attack in Australia is completely contrary to the defence case. Secondly, the effect of it is to introduce bad character about something that the accused was never charged with and about which there is no evidence apart from what Mr Hussain says, which, it was submitted, is contrary to what he says later in his statement.

54. Counsel for the accused submitted that the relevant evidence adduced from Mr Hussain is fundamentally unfair to the accused as it cannot be tested. The accused has never been charged with those acts and the provision of the gun would constitute a more objectively serious offence of the same nature of that which the accused is currently facing charges. Counsel anticipates that the accused will deny any knowledge of procuring a gun and knowing what the plan was. It was submitted that that there is certainly not enough evidence for Mr Azari to be charged over it.

55. In relation to a direction to the jury not to use the evidence for tendency purposes, it was submitted that such a direction would create a difficulty as it would highlight the possible use of the evidence for tendency reasoning. It was said that the evidence is not ambiguous – it shows clearly that the accused is a member of the shura, that the shura assisted in providing Mr Kruezi the gun, that the accused was asking about Mr Hussain’s ability to obtain a gun and told him that the shura should assist Mr Kruezi because he had a plan to use it in an attack in Queensland.

56. Ultimately, it was submitted that giving the jury a direction that the Crown does not rely on the accused being involved in a previous plan does not remove the prejudice that the jury will view the conversation with Mr Hussain about helping Mr Kruezi obtain a gun to carry out a terrorist attack as more serious than the one he is charged with: it goes beyond a phone call and involves actually assisting in sourcing a gun to be used in an attack.

The Crown submissions

57. The Crown Prosecutor confirmed that the Crown had always intended to lead the impugned evidence from the witness and the accused was on clear notice of this. It was submitted that the evidence is not relied upon as tendency evidence. Rather, it has been led for the purpose of proving the central fact in issue in the trial - whether the accused intended to do an act in preparation for or planning a terrorist act when he participated in the 15 September 2014 telephone call with Mr Baryalei.

58. It was acknowledged that, irrespective of the failure to object to the evidence before it was given, the application for discharge must be determined on the basis of the admissibility of the evidence.

59. The Crown submitted that the evidence was clearly relevant as the reference to the “plan” in the telephone conversation directly correlates with what Mr Hussain says that the accused said to him at the time. This is contrary to the evidence it is anticipated that the accused will give that he only learned about the plan from media reports of Mr Kruezi’s arrest. It was put that the way that the accused’s case has been foreshadowed makes the evidence even more relevant to the jury’s proper determination of the accused’s state of mind at the time of the call. The evidence will enable the jury to properly consider any suggestion that the accused only knew of Mr Kruezi’s plan because of media reports following his arrest.

60. The Crown relied upon the decisions in Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 303 (“Elomar v R”) and others discussed further below. It was submitted that, consistent with those authorities, the statutory requirements for the admission of tendency evidence under ss 97 and 101 of the Evidence Act are not engaged.

61. The Crown Prosecutor addressed the accused’s complaint that this evidence is contrary to the evidence it is anticipated that Mr Hussain will give that after the 15 September 2014 conversation the accused spoke to him and it and that was the first time he had ever heard of a domestic attack and he was shocked by that. It was submitted that the relevant distinction is that the shura had never previously discussed committing a domestic terrorist act themselves as opposed to providing support and assistance to Mr Kruezi.

62. It was submitted that the evidence is critical evidence in the Crown case. It is highly probative of the accused’s true state of mind when he made the statements to Mr Baryalei during the 15 September 2014 call.

63. Nor, it was submitted, should the evidence be excluded under s 137 of the Evidence Act as any danger of unfair prejudice is outweighed by the probative value of the evidence. It was argued that the jury can be directed that the evidence is not to be used for a tendency purpose and that they must not reason that, because the evidence may show other misconduct (or even a criminal act) on another occasion, the accused must have committed the act charged. It was further submitted that, in determining this application, I should start with the assumption that the jury would follow such a direction.

64. In addition to the jury being provided with appropriate directions, the Crown is content not to lead the further evidence contained in Mr Hussain’s statements. It was not conceded that there was in fact any unfair prejudice associated with the admission of this evidence.

Consideration

65. The application for a discharge was initially made on the basis that the Crown had not given notice that it intended to rely upon the evidence of Mr Hussain regarding Mr Kruezi. I am not satisfied that is so. The impugned evidence was set out in similar terms in the three statements of Mr Hussain which had all been served on the accused in October 2017 and February 2018. Significantly, this evidence was summarised at [238]-[241] and [289]-[290] of the amended Crown case statement. The accused filed a defence response to the Crown case statement which took no issue with those paragraphs. In earlier legal arguments, the Crown case statement was relied upon as the agreed description of the evidence to be led in the trial. No objection had ever previously been raised in respect of the evidence of Mr Hussain regarding Mr Kruezi.

66. It is not entirely clear why the evidence regarding Mr Kruezi came as such a surprise to the accused’s legal team. It is true that the Crown Prosecutor did not specifically refer to this evidence in his opening address, but nor did he make any reference to what Mr Hussain would say the accused told him after the 15 September 2014 telephone conversation. The only reference to what Mr Hussain’s evidence would be in the Crown opening was that he was part of the shura, attended meetings and was present as the focus of the shura evolved from attempts to travel overseas to, later in 2014, “contemplating and thinking about a terror act in Australia”.

67. I do not propose to dwell on the question as to why no objection was made to the evidence. As the Crown properly conceded, this discharge application turns on the admissibility of the disputed evidence. I propose to proceed on the basis that, if the evidence is inadmissible and its admission would lead to an unfair trial (even having regard to appropriate directions), I would discharge the jury. If, on the other hand, I am satisfied that the evidence is admissible I would not discharge the jury.

68. The first question is whether this evidence is relevant. Section 55(1) of the Evidence Act provides that evidence is relevant in a proceeding if it is “evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.” This provision was considered by the High Court in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 (“IMM v The Queen”). The majority (French CJ, Kiefel, Bell and Keane JJ) observed at [38]-[39] that the task of determining whether evidence is relevant requires an assessment of the capability of evidence rationally to affect the assessment of the probability of the existence of a fact in issue. That exercise is to be undertaken on the assumption that the jury will accept the evidence. It is not to role of the trial judge, at the point of assessing relevance, to enquire into the weight that a jury may give to evidence.

69. I am satisfied that the evidence of Mr Hussain regarding Mr Kruezi is relevant. The evidence is clearly capable, when taken with other evidence, of proving an essential element of the offence, namely, the intention held by the accused at the time of the in the 15 September 2014 telephone call. More specifically, it is capable of explaining what the accused meant when he told Mr Baryalei that Mr Kruezi’s plan was “known to us”.

70. The accused told Mr Baryalei during the conversation that “[a] brother wanted to do this work”, “he completely prepared everything, everything was planned well, everything was planned”, “[t]his brother was from Brisbane, he has had lost his passport and he was very much with us in religion… - and he was a… revert as well,” “[h]e also wanted to send them a message… the thing that you just mentioned, he wanted to do this work” and “[t]hat brother had planned everything very well, but his plan is known to us, Allah willing, we have got his plan.”

71. The Crown has been on notice since as early as April 2017 from the defence opening at the first trial that the accused will give evidence that he only knew about the plan from media reports after Mr Kruezi’s arrest. Mr Hussain’s evidence is relevant to pre-emptively rebut that claim. It is anticipated that the accused will give evidence that he lied to Mr Baryalei when he told him that he knew the “completely prepared” plan of a “brother” who was raided two days ago who wanted to do “this work.”

72. The next question is whether this relevant evidence of a previous uncharged act should otherwise be excluded as it is only admissible as tendency evidence. It is well established that previous criminal acts can be admissible and relevant for a non-tendency purpose. The High Court considered this issue in Harriman v R (1989) 167 CLR 590; [1989] HCA 50 (“Harriman”) where McHugh J noted that there are a number of exceptions to the proposition that evidence proving that the accused has been guilty of other criminal acts is not admissible if it does no more than prove he has a general disposition which makes it likely he committed the offence charged. Those exceptions include transactional evidence, such as in O’Leary v The King (1946) 73 CLR 566; [1946] HCA 44 at 575-577, and circumstantial evidence. Cases where the evidence can be relied upon as circumstantial evidence include relationship evidence, where the evidence tends to prove the truth of part of a witness’ evidence or to rebut any suggestion of ambiguity or uncertainty in a witness’ evidence.

65. The “Harriman” principle has been considered in a number of intermediate appellate decisions including R v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97, at [129]-[133]. In R v Quach (2002) 137 A Crim R 345; [2002] NSWCCA 519 at [22]-[45] Spigelman CJ held that the approach taken in Harriman was entirely consistent with the Evidence Act and did not involve tendency reasoning.

66. The Crown also relied upon the observations of Basten JA in Strachan v R [2017] NSWCCA 322 and El-Hilli v R; Melville v R [2015] NSWCCA 289. In Strachan v R, Basten JA (with whom Bellew and Hamill JJ agreed), considered that evidence of the finding of a manual detailing how to manufacture a machine gun was not tendency evidence but was relevant and admissible in proof of the accused’s state of mind with respect to charges of possession of firearms. His Honour observed at [22] that “[h]aving a particular state of mind or knowledge does not necessarily demonstrate a tendency to commit criminal acts. The point of distinction has long been understood.”

67. In El-Hilli v R; Melville v R [2015] NSWCCA 289, Basten JA (Hall and Wilson JJ agreeing) observed that if evidence is relevant for a non-tendency purpose, the evidence may be relevant and admissible for that purpose without engaging ss 97 and 101, noting at [29]:

“It is quite possible that evidence may bear upon the probability of the existence of a fact in issue in more ways than one: if, in one respect, the reasoning process may fall within either s 97 or s 98 (or both) then the conditions imposed by those provisions (and s 101) must be satisfied for the evidence to be admissible for that purpose. Nevertheless, the evidence may be admissible for an alternative purpose, not falling within those provisions, in which case it may be used for that purpose, but only for that purpose: s 95.”

76. A case pertinent to the present case is Elomar v R in which the Court of Criminal Appeal rejected an argument that sought to characterise certain evidence led in the Crown case as “tendency evidence”. The evidence was that the accused had previously participated in training at a militarist Islamic training camp in Pakistan. The Court concluded that, properly analysed, the evidence was such from which an inference regarding the state of mind of the accused could be inferred. The Court explained the distinction at [361]-[367] thus:

“The evidence of Moustafa Cheikho’s attendance at the LeT camp was not, in our opinion, evidence of conduct such that any conclusions or inferences could be drawn that he had a tendency to act in any identifiable (particular) way. It was, however, evidence that could provide the foundation for a conclusion or inference that, in 2001-2002, he in fact had a particular state of mind. That state of mind was support for violent Islamic Jihad. Looked at in that way, the evidence was capable of being seen as tendency evidence. It was evidence which could be seen as evidence that, because he had that state of mind in 2001-2002, he had a tendency to have that state of mind, and, commencing in 2004, he again had that state of mind.”

77. The Court went on to consider how such evidence might be considered to be tendency evidence before observing at [367]:

“Evidence that a person has a particular state of mind is relevant to a vast number of criminal offences. Proof of the state of a person’s mind is not tendency evidence. It is evidence of the fact of the state of mind of the person (even where, as is often the case, it is proved by inference). It is therefore necessary to ask whether the evidence of Moustafa Cheikho’s attendance at the LeT camp was evidence of a tendency on his part to support violent Islamic Jihad, from which the Crown would seek to have drawn an inference either (i) that he entered into the agreement alleged intentionally; or (ii) that he intended that a terrorist act would be committed in Australia. If that were the basis on which the Crown tendered the evidence, it would come within s 97 of the Evidence Act and the tests imposed by s 97 and s 101 would have to be applied. Alternatively, did the Crown seek to prove that Moustafa Cheikho in fact supported violent Islamic Jihad, from which, similarly, the Crown would seek to have drawn an inference that he entered the agreement alleged intentionally, or intended that a terrorist act would be committed in Australia? The former involves tendency reasoning; the latter does not.”

78. It is a matter for the prosecution as to how it wishes to rely upon evidence in its case. “Tendency evidence” is defined in the Dictionary to the Evidence Act as meaning “evidence of a kind referred to in section 97(1) that a party seeks to have adduced for the purpose referred to in that subsection” (emphasis added). That is, it is defined by the purpose for which it is tendered: L'Estrange v R (2011) 214 A Crim R 9; [2011] NSWCCA 89 at [59]. The Crown does not seek to have the evidence adduced for a tendency purpose, thus, even if it is capable of constituting tendency evidence, its admissibility is not governed by Part 3.6 of the Evidence Act. Despite this, if I had been satisfied, contrary to the Crown’s position, that the only basis for admissibility was as tendency evidence, that would be a different matter: RWC v R [2010] NSWCCA 332 at [129]-[130] and RG v R [2010] NSWCCA 173 at [34].

79. I am satisfied that the evidence is not being led for a tendency purpose and I do not need to consider ss 97 and 101 of the Evidence Act. When the evidence of Hussain regarding what the accused told him about Mr Kruezi’s plan is viewed against the accused’s references in the 15 September 2014 telephone call to Mr Kruezi and his “best plan”, a clear link can be seen. From this, the jury may infer that the accused did in fact hold the relevant intention when he participated in the call. If the jury accepts that, then it is evidence going to whether the accused had the relevant state of mind at the time.

80. I turn to the third question, which is whether I should exclude this otherwise relevant and admissible evidence under s 137 of the Evidence Act. Section 137 provides that “[i]n a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

81. “Probative value” is defined in the Dictionary to the Evidence Act as “The extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.” As the High Court confirmed in IMM v The Queen, assessment of probative value for the purposes of s 137 does not require evaluation of the credibility, reliability or weight of evidence, those being matters properly left to the jury if the evidence be admitted.

82. I have had regard to the accused’s submission that the probative value is reduced by the fact that it is not the only evidence going to this issue; there is other evidence in the Crown case to establish that the accused was a member of the shura and that the shura held radical beliefs supportive of the ideology of Islamic State. The difficulty with this submission is that there is no other evidence going to the issue of what the accused was referring to when he told Mr Baryalei that he knew of Mr Kruezi’s plan and that it was a good plan.

83. I am satisfied that the probative value of the evidence is high for the reasons stated above at [69]-[70].

84. The relevant test for whether there is a danger of “unfair prejudice” is whether there is a real risk that the evidence would be misused by the jury in some unfair way that is logically unconnected with the purpose of its tender: see McHugh J in Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]. As Mason P observed in Colby v The Queen [1999] NSWCCA 261 at [97], “[t]he focus is upon the danger that the tribunal of fact will use the evidence upon a basis logically unconnected with the issues in the case...”

85. The High Court recently observed in The Queen v Bauer (a pseudonym) [2018] HCA 40 at [73] that: “Despite textual differences between the expressions "prejudicial effect" in s 101, "unfairly prejudicial" in s 135 and "unfair prejudice" in s 137, each conveys essentially the same idea of harm to the interests of the accused by reason of a risk that the jury will use the evidence “improperly in some unfair way.”

86. It was submitted on behalf of the accused that the evidence would be misused by the jury as tendency evidence and also that it went much further than merely rebutting the anticipated defence case; it introduced evidence that the accused supplied a gun for use in a terrorist attack. This evidence was of conduct more serious than the charged offence. The unfair prejudice was identified by the accused as being that the jury might well reason that the accused had done an act in preparation for or planning of a terrorist act before and thus he is more likely to have done the act for which he has been charged. It was submitted that the prejudice could not be cured by an anti-tendency direction and that the risk that the jury would not comply with the direction outweighed the probative value of the evidence. It was submitted that this is the kind of unfair prejudice to which s 137 is directed.

87. The accused’s submission that the “damage was already done” and that it is too late to remedy the unfair prejudice has to be seen in the light of the actual evidence given. Despite the fact that it was submitted on behalf of the accused that the effect of the evidence clearly established this by “drawing a line between two dots,” I am not satisfied that the evidence does in fact go as far as establishing that the accused supplied the gun for the purpose of Mr Kruezi’s terrorist attack.

88. Mr Hussain has given evidence that he was told by the accused that Mr Kruezi had the “best plan” and that Mr Kruezi’s attack would take place in Queensland after “we” had access to a firearm. When Mr Hussain was asked why the accused told him about the plan he replied that he did not know but suggested it might be “because I was a member of the Shura and I could be someone who he could trust.” Also, the accused told Mr Hussain that “we” (the shura) had to help Mr Kruezi and that Mr Hussain understood the firearm was ultimately obtained with the assistance of the shura. Although the accused told Hussain that “we need to help” Mr Kruezi, there was no discussion about what the shura was actually going to do to help Mr Kruezi. Mr Hussain’s evidence is that he was told that Mr Kruezi did ultimately obtain a firearm with the assistance of the shura, but he was not aware of how that occurred, nor did he have any other discussions with the accused about Mr Kruezi’s plans or Mr Kruezi’s attempts to obtain a firearm.

89. Despite the fact that I am not satisfied that the evidence of Mr Hussain establishes that the accused provided the gun to Mr Kruezi, there is evidence before the jury that Mr Kruezi got the gun “with the assistance of” the shura and that the accused was a member of the shura, which comprised around 17 persons in total.

90. The Crown Prosecutor indicated that it was always his intention to lead the evidence from Mr Hussain about Mr Kruezi in full in order to explain the references to Mr Kruezi’s plan in the 15 September 2015 telephone conversation. During the hearing of this application the Crown Prosecutor indicated that he would place on the record before the jury that the Crown relied upon this evidence to prove that the accused both knew of and supported Mr Kruezi’s plan but that it was not the Crown case that the accused provided the gun or was otherwise directly involved in the terrorist act with which Mr Kruezi was charged. It was suggested that I could then give the jury a direction as to how the evidence could be used including ways in which it could not be used in their deliberations.

91. I would only consider discharging the jury if I was satisfied that any perceived prejudice could not be cured by a direction. As Brennan J (as His Honour then was) observed in R v Glennon (1992) 173 CLR 592; [1992] HCA 16 (at 614-615), “[o]f necessity, the law must place much reliance on the integrity and sense of duty of the jurors. The experience of the courts is that the reliance is not misplaced.” Similarly, in Gilbert v R (2000) 201 CLR 414; [2000] HCA 15, McHugh J observed at [31]:

“The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one – accused, trial judge or member of the public – could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.”

92. It was submitted on behalf of the accused that the relevant test for me to apply in determining this application is that set out by the High Court in Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 (“Crofts v The Queen”) and that I would discharge the jury if I was satisfied that there is a "high degree of necessity" to do so. As the majority (Toohey, Gaudron, Gummow and Kirby JJ) observed in that decision (at 440):

"No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact."

93. Although I am not satisfied that this was a case of an “inadvertent” ship, I am satisfied that I am to apply the test of a high degree of necessity in this application for a discharge. In doing so I have had regard to the relevant factors discussed in Crofts v The Queen. This was not a deliberate outburst and the evidence was in the context of what the accused knew of Mr Kruezi’s plan. I have identified the appropriate judicial direction which would overcome any prejudicial impact. In that regard I have considered the accused’s submission that there is already a degree of prejudice associated with terrorism trials generally which cannot be avoided by seeking a judge alone: Alqudsi v The Queen (2016) 258 CLR 20; [2016] HCA 24. Although that might well be the case, it does not mean that any such perceived prejudice cannot be cured by appropriate directions.

94. I have had regard to the accused’s submission that he is now confronted with the difficult forensic decision involving two bad choices: whether to respond to the evidence regarding the gun or not. Mr Hughes has foreshadowed that a strong attack will be made on the credibility of Mr Hussain. It is to be anticipated that, consistent with the opening of the defence, it will have to be put to Mr Hussain that all of the evidence of Mr Hussain about the accused telling him of Mr Kruezi’s plan should be rejected. That evidence would include knowledge of the plan, approval of the plan and any assistance by the accused in any way in it. The motive for lying is, presumably, the discount he received on his sentence for assisting the authorities. In these circumstances, I do not see that any different issues arise in suggesting that a part or all of the conversation did not take place.

95. I have had regard to all of these matters and I am satisfied that the probative value of the evidence is high and outweighs any risk that the jury might use the evidence “improperly in some unfair way” in circumstances where the jury will not only be told by the Crown the basis upon which the Crown puts its case but the jury will also be directed by me as to how the evidence is relied upon by the Crown and how it can be used by them in their deliberations. I will give this direction both at the conclusion of Mr Hussain’s evidence and in my summing up to the jury.

order

96. Accordingly, I make the following order:

1. The accused’s application to discharge the jury made on 18 October 2018 is refused.

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Decision last updated: 29 November 2018