R v Azari (No 2)

[2017] NSWSC 515

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Azari (No 2) [2017] NSWSC 515
Hearing dates:	2 May 2017
Decision date:	03 May 2017
Before:	N Adams J
Decision:	The application to discharge the jury is granted.
Catchwords:	CRIMINAL LAW – application to discharge jury – extensive publicity of committal proceedings of other persons alleged to have been associates of the accused – prejudice not capable of being cured by direction – application granted
Legislation Cited:	Criminal Code (Cth), s 101.6 Evidence Act 1995 (NSW), ss 55, 137 Jury Act 1977 (NSW), s 55D
Cases Cited:	Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 Elomar v R; Hasan v R; Cheiko v R; Cheiko v R; Jamal v R [2014] NSWCCA 303 Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 Regina (C’Wealth) v Elomar & Ors [No 4] [2008] NSWSC 1444 Regina (C’Wealth) v Elomar & Ors [No 12] [2009] NSWSC 448 R (Cth) v Petroulias (No. 19) [2007] NSWSC 536 The Queen v Glennon (1992) 173 CLR 592
Category:	Procedural and other rulings
Parties:	Regina (Crown) Omarjan Azari (Accused)
Representation:	Counsel: Mr P Neil SC with Ms J Single (Crown) Mr J Stratton SC with Ms M Curry (Accused)   Solicitors: Commonwealth Director of Public Prosecutions (Crown) Ryan & Payten Criminal Specialists (Accused)
File Number(s):	2014/00274649
Publication restriction:	Nil

Judgment

1. On 24 April 2017, the accused Omarjan Azari pleaded not guilty to a count brought under s 101.6(1) of the Schedule to the Criminal Code Act 2005 (Cth) that on 15 September 2014 he did an act in preparation for, or planning, a terrorist act or acts. The trial has proceeded before a jury since that date.

2. On Tuesday 2 May 2017, the accused’s counsel Mr Stratton SC made application for a discharge of the jury due to prejudicial media coverage of the committal proceedings of three of the men charged with terrorist offences in relation to the shooting of Curtis Cheng outside NSW Police headquarters in Parramatta on 2 October 2015. The Crown opposes the application for discharge.

The Crown case

3. The Crown case is that on 15 September 2014 the accused participated in a telephone conversation with Mohammad Ali Baryalei in which the two men discussed a plan for a future terrorist act or acts to be committed in Australia; namely, the killing of a random member or members of the public. Mr Baryalei was at that time a senior Australian figure in the terrorist organisation known as Islamic State and was in either Syria or Iraq. Evidence has been given at the trial that Mr Baryalei is believed to be deceased.

4. It is part of the Crown case that the accused was a member of a group of men who sympathised with Islamic State and would have been willing to be involved in terrorist activity in Australia. This group described itself as a “Shura”, which is an Arabic word meaning a consultative council. Some evidence has already been led as to who was in the Shura at the relevant time and it is anticipated more will be forthcoming.

5. The jury have been provided with copies of the transcript of the relevant telephone call. One version of the translated transcript of the call is included in Exhibit B. Other versions have also been provided in Exhibits E and F. The reason for the multiple copies is that the relevant conversation is partly in English and partly in the Afghan language Dari (with some religious expressions in Arabic) and the translation into English of some of the Dari words is in dispute. For the purposes of these reasons, I propose to refer to the translation in Exhibit B and not to differentiate as between the respective languages.

6. There are a number of references to the Shura and to “the boys” throughout the transcript of the 15 September 2014 telephone call. Some examples are as follows.

7. After Mr Baryalei tells the accused to pick “any random unbeliever” and kill him or her, he says “I need-I need-I need-I need boys. I need you. I - I need someone that has heart.” He further states, “As you are involved in this work…” and “...it’s an order from…the Commander of the Faithful. He said, youse will be working from there. Youse-youse aren’t allowed to come here…” Mr Baryalei says that, “They told me to tell you guys the Commander of the Faithful said that you guys, if youse do this … your pledge of allegiance is accepted, you are a part of us and the second thing, ah even if youse wanna come here now, no. You have to stay there and work from there. They want youse to be, like, the soldiers from there.” The accused’s response is “Allah willing brother, I have no problem with that. Praise be to Allah.”

8. The accused says to Mr Baryalei earlier in the conversation that, “The problem is that here the boys who have heart, yeah, all of them are under surveillance, like extreme surveillance, whatever they do, they go after them, it means if we take the car out and go somewhere, they know where we are going, like, extreme surveillance, in this work…” He also says, “Look, the, the thing is the only problem with this is, like, Allah willing make it, like, not, you have to give us, like, two months because two months…now the situation is like this, if we even move our bottoms they know what we are doing.”

9. The accused says to Mr Baryalei, “This work…there are courageous boys, with a heart.” Mr Baryalei asks him, “I want to know what these boys are like, are they hundred percent? Are they like, best of the best, top of the top? Yes or no?” The accused replies, “Yeah”.

10. The accused says to Mr Baryalei, “I’ll see, I’ll talk to the brothers that are with me amongst the [Consultative Council] and I’ll talk to them and Allah willing that’s if, I’ll tell them that’s an order from the Commander.”

11. As the above summary shows, the identity of “the boys” to whom the accused refers in the telephone conversation is relevant to the Crown case.

12. Some of the evidence the Crown proposes to lead has been objected to on behalf of the accused and I am yet to rule on its admissibility. Relevantly for present purposes, one of the categories of evidence upon which the Crown relies is the jihadist literature and images found when search warrants were executed at the premises of other alleged members of the Shura in September 2014. Although the Crown cannot link any of this material with the accused, it is nonetheless said to be relevant to establish that these men, whom the accused describes as “boys with heart” in the 15 September 2014 call, were in fact exposed to jihadist literature and were sympathetic to Islamic State. Mr Stratton’s position is that such material is irrelevant as it is would invite the jury to reason impermissibly along the lines of guilt by association in circumstances where the accused has not been charged with being in a conspiracy with the other members of the Shura. That argument has been deferred until later in the Crown case.

13. At the end of the day’s evidence on Monday, 1 May 2017, the Crown tendered a series of photographs that became Exhibit L. The jurors were each provided with a copy of this exhibit. It includes surveillance photos taken of some of the men said to be in the Shura, including the accused. Some of those photos depict two men MA and RA2. It is part of the Crown case that those two persons were part of the Shura and thus were two of “the boys” with whom the accused indicated that he would discuss the plan and tell them that it was an order from the “Commander”.

14. By coincidence, committal proceedings commenced on Monday, 1 May 2017 in Sydney against three of the four men charged in relation to the murder of Curtis Cheng at Parramatta on 2 October 2015. That killing was a highly publicised alleged act of terrorism in the name of Islamic State involving the shooting of a government employee outside NSW Police headquarters at Parramatta by a 15-year-old male named Farhad Jabar. Mr Jabar is now deceased, having been shot by police at the scene. Four other men have been charged in relation to that alleged terrorist act. Two of those four men charged are MA and RA2, both of whom are alleged to have been members of the accused’s Shura in the present trial.

15. The committal proceedings received significant publicity on Monday afternoon and evening and on Tuesday morning. On Tuesday, 2 May 2017, Mr Stratton made application that the jury be discharged because of this publicity. He tendered material that became Exhibit VD9, which included relevant press clippings of some of the reportage.

16. The Crown Prosecutor asked for some time to obtain instructions. When court resumed, he indicated that he had received instructions to oppose the application. He requested that the matter be stood down until 2pm in order to prepare submissions and to provide the relevant authorities to the Court.

The relevant publicity

17. Exhibit VD9 comprised news clippings from The Daily Telegraph, The Sydney Morning Herald, ABC News, 9 News, The Australian and Sky News dated 1 and 2 May 2017. They show that there was extensive coverage of the committal proceedings concerning the four men charged with a number of offences with respect to the shooting of Curtis Cheng by Farhad Jabar on 2 October 2015. The charges include doing an act in preparation for a terrorist act. The four men are named as Talal Alameddine, MA, Mustafa Dirani and RA2.

18. All reports state that RA2 and Mr Dirani met Mr Alameddine to obtain a gun and that a conversation between Mr Alameddine and RA2 reveals that RA2 was not happy with the firearm that was acquired. They then went to Merrylands to get another weapon. It is also reported that RA2 can be seen entering the Parramatta Mosque 45 minutes before the shooting, allegedly concealing the .38 calibre Smith & Wesson revolver used to shoot Mr Cheng, and that it was at the Mosque that Jabar took possession of the gun.

19. Afterwards RA2 allegedly communicated with an undercover officer who asked, “How can it be permissible bro? Like he’s murdered like a, a, a innocent person.” RA2 allegedly responds, “No it’s not it’s a copper” and then adds, “You are allowed cause we are in dark…dark times.”

20. It is further reported that the accused in the committal proceedings used a “WhatsApp” messaging platform to exchange messages and that, in a series of exchanges between them with respect to photographs of Australian Defence Force personnel taken by the accused men, RA2 allegedly says, “May Allah curse them all and destroy them to pieces.”

21. The reportage included dramatic photographs of Farhad Jabar giving the Islamic State salute before he killed Mr Cheng and photographs of a bloodied letter found on his body. That letter included the words, “By the will of Allah I have come today to put terror in your hearts.”

The relevant principles

22. The Crown Prosecutor provided copies of the decisions upon which he relied to the Court. He relied upon the decisions of Whealy J in Regina (C’Wealth) v Elomar & Ors [No 4] [2008] NSWSC 1444 and Regina (C’Wealth) v Elomar & Ors [No 12] [2009] NSWSC 448, in which his Honour declined to order that the jury be discharged, and upon the decision of the Court of Criminal Appeal in Elomar v R; Hasan v R; Cheiko v R; Cheiko v R; Jamal v R [2014] NSWCCA 303. He also drew the Court’s attention to Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 and The Queen v Glennon (1992) 173 CLR 592, acknowledging that those cases do not concern discharge applications. They state the principles governing the grant of a permanent stay of criminal proceedings and appeals against conviction where there has been significant prejudicial pre-trial publicity.

23. The decision of Whealy J in Regina (C’Wealth) v Elomar & Ors [No 12] is of assistance in the circumstances of this case. In that matter, all five accused joined in a discharge application on the basis that they were prejudiced by publicity relating to sentence proceedings in Melbourne (which were tangentially connected to the trial before his Honour). Relying upon the decision of the Court of Criminal Appeal in Re K (2002) NSWCCA 374 at [9] – [10], his Honour stated at [70] that, in order to be successful in a discharge application, it is not necessary for an accused to demonstrate that he or she would not have a fair trial; rather, it is sufficient if there is a real risk of prejudice if the trial were to continue.

24. The Crown Prosecutor and Mr Stratton on behalf of the accused agreed that I am to apply the principles stated by his Honour at [75] – [77]. as follows:

“The first matter to determine is a factual one. It is necessary to examine the media reporting of the Melbourne sentence and to ask the following questions: Is there, as asserted, a clear connection between the material reported in the Melbourne proceedings and the present proceedings? Would the jury in the Sydney trial inevitably have made the connection between the Melbourne offenders and the Melbourne persons mentioned in the present trial? If not, to what extent was or is there a risk that such a connection would have been, or will be, made?

When those factual determinations have been made, it will still be necessary to consider, having regard to the possibility of such a risk, whether it has been sufficiently avoided by the directions which have been given, or by any further directions which ought to be given.

The ultimate question, however, is the one I have posed earlier, namely whether there is a real risk, that is not a fanciful risk, that the accused, having regard to the publicity, will be unable to have a fair trial.”

[emphasis added]

25. In that matter, his Honour considered at [104] that the media had not made a link between the person the subject of the Melbourne sentence proceedings and the person about whom the jury had heard evidence. He stated at [102] that he did not consider that an ordinary juror, properly instructed, would realistically have made or endeavoured to make such a connection. Having made those findings, it was unnecessary for his Honour to go one to consider the other questions posed at [75] – [77].

26. It is to be noted that the accused appealed their convictions to the Court of Criminal Appeal. In Elomar v R; Hasan v R; Cheiko v R; Cheiko v R; Jamal v R, the Court found at [216], that the pre-trial publicity concerning the Melbourne proceedings was not such as to require the discharge of the jury and, thus, the subsequent convictions were not for that reason rendered a miscarriage of justice. The Court noted the well-established principle that it is to be assumed that jurors adhere to their oath or affirmation and abide by the directions given to them by the trial judge.

The submissions

27. Mr Stratton submitted that this was not the first occasion of media coverage of terrorist activity connected with Islamic State since the trial commenced; such reportage was almost a daily event. The difficulty with the reportage of the committal proceedings, it was submitted, is the timing. The widespread reporting that both MA and RA2 were involved in the shooting of Mr Cheng coincided with the jury being provided with copies of surveillance material showing that those two people were part of the Shura of which the accused spoke in the telephone call. He submitted that that there were no directions which could cure this prejudice.

28. The Crown Prosecutor submitted that there is a “disconnection” between this trial and the relevant committal proceedings. However, he conceded that there is some connection by reason of the naming of certain persons who are alleged to have been involved in the shooting murder of Mr Cheng in the evidence adduced in this trial so far and that is likely to be adduced should the trial continue. He noted that there will be a body of evidence from the indemnified witness relating to, among other persons, MA, Kawa Alou and his brother RA2. Farhad Jabar is also present in surveillance footage.

29. He accepted that there are “some factual connections” between the material reported and the facts in dispute in this trial.

30. The Crown Prosecutor initially conceded that there must be some prejudice to the accused by reason of those factual connections. He then withdrew that concession and stated that there was a “potential for slight prejudice”, rather than actual prejudice. He submitted that there is a long line of authority to the effect that prejudice relating to publicity is “universally” expected to be dealt with by way of direction and stated that the directions that I have already given in the ordinary course of the trial are sufficient for that purpose. He referred to the decision of the High Court in The Queen v Glennon in support of that submission.

31. The Crown Prosecutor stated that he would not have sought to adduce evidence of the fact that members of the Shura were subsequently alleged to have been involved in the murder of Mr Cheng. He submitted that he would have considered such evidence inadmissible, whether pursuant to ss 55 or 137 of the Evidence Act 1995 (NSW).

Determination

32. The principles to be applied in an application of this nature are well settled. The question of whether the jury should be discharged in this matter turns on the application of those principles to the particular facts of this case.

33. I have found the approach taken by Whealy J in Regina (C’Wealth) v Elomar & Ors [No 12] to be of particular assistance. His Honour considered that the first issue is to be determined is whether there is any connection between the subject matter of the reported material and the trial. In that matter, his Honour found that there was not such a connection. In this matter, the Crown Prosecutor has accepted that “some” connection exists.

34. I have compared the reportage to the issues in the trial and I am satisfied that there is a reasonably strong connection between them. This conclusion is based on the following features common to both.

35. First, both MA and RA2 are men said to have been part of the Shura and described by the accused as “strong”. The Crown will be inviting the jury to infer that all members of the Shura were persons sympathetic to Islamic State. The reportage shows that, approximately one year after the telephone conversation, both MA and RA2 allegedly became involved in a terrorist act similar to that described in the telephone call.

36. Second, in the present trial there is evidence that the accused would often meet with members of the Shura at the Parramatta Mosque. It is anticipated that evidence will shortly be given by a witness who has been granted indemnity by the Crown that he was also persuaded to become involved in providing finance to Islamic State by persons whom he met at the Parramatta Mosque. The coverage describes RA2 handing Farhad Jabar the gun at Parramatta Mosque. As stated above at [28], I was informed by the Crown Prosecutor that there is also surveillance footage of Farhad Jabar associating with the accused and other members of the Shura to be played in the present trial.

37. Third, during the call on 15 September 2014 there is a reference to the fact that “the boys” in the Shura are under too much surveillance to be able to commit terrorist acts, but in the future they may be able to do so. The reportage shows that there is evidence that members of that Shura were able to provide a weapon to the young person Farhad Jabar to do such an act a year later, despite being under surveillance.

38. Fourth, there is a possibility that the jury may infer that the accused was in some way involved in the shooting as he was part of the same Shura and the plan appears consistent with the killing of Mr Cheng. This could not be the case as he was in custody in the HRMU at the relevant time, but the jurors do not know that (although they way well suspect it).

39. Finally, I apprehend from the opening address given by Mr Stratton that the defence case is that the jury could not be satisfied that the accused ever intended to go through with any terrorist act and that he did not agree with what he was being asked to do by Mr Baryalei. That will ultimately be a matter for the jury. The difficulty is that the reportage of the committal proceedings shows that members of the Shura subsequently were involved in a terrorist act similar to that planned in the 15 September 2014 call.

32. For these reasons, I am satisfied that there is a significant link between the subject matter of the reportage and the facts in issue in this trial.

33. The next question to consider is whether, because of that link, I am satisfied that there is a real risk, as opposed to a fanciful risk, that the accused cannot receive a fair trial because of the publicity.

34. It is to be accepted that during any trial for terrorism offences there will be frequent publicity of terrorist acts committed by persons sympathetic to the cause of Islamic State or some other terrorist organisation, whether in Australia or around the world. It is also to be accepted that such general publicity would not usually prejudice the accused’s trial. There are further terrorist trials to be prosecuted by the Commonwealth in the coming year. I have already ruled that evidence that the alleged terrorist Agim Kruezi was arrested in Brisbane shortly before the 15 September 2014 conversation is admissible, as is the fact that he was found with a weapons at the time of his arrest. That is relevant because the accused referred to it in the 15 September 2014 conversation. It is to be anticipated that there will be intense coverage of that trial as well.

35. The mere fact of publicity of other terrorism trials would be insufficient to lead me to conclude that there would be a real risk of prejudice to the accused’s trial. Nor would pre-trial publicity of this case be of itself prejudicial. The recent reportage of the committal will still be able to be seen online well into the foreseeable future and that does not mean that there would be any prejudice associated with a trial held in the future. I have given the jury strong directions about ignoring media coverage at the beginning of the trial and I have also provided written directions to that effect. I would have given further direction at the end of the trial.

36. I have had regard to the fact that I must proceed on the basis that juries follow legal directions given to them. In a different context, in Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13], Gleeson CJ and Gummow J qualified that rule to some extent when their Honours observed:

“The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice”.

45. I have paid close attention to the jury throughout the trial. They appear to be an attentive jury who have followed the trial and the particular directions that I have given them thus far. I considered the option of examining the jurors under s 55D of the Jury Act1977 (NSW) to enquire whether they had read the coverage, but decided not to follow that course. It seems to me that such a course would have only highlighted the existence of the relevant publicity. In any event, despite the strong directions that I gave the jury at the start of the trial, I did not instruct them that they were prohibited from listening to or reading any news at all. Given the widespread nature of the coverage, I am satisfied that at least some of the jurors would have seen reportage of the committal proceedings.

46. During the hearing of this application I raised with counsel what direction would be appropriate to be given to the jury should I determine that the trial should proceed. The Crown Prosecutor’s initial position was that I should say nothing further than the directions that I have already given so as not to draw attention to the coverage. He later agreed with Mr Stratton’s position that it would be necessary to say something to the jury should the trial proceed. It was agreed by counsel that such a direction should include something to the effect that it is not part of the Crown case that the accused was involved in the Curtis Cheng shooting, nor could he have been.

47. It seems to me that there are at least two problems with such a direction. First, it draws attention to the publicity, which not all of the jurors may have read. Second, it does not address the main prejudice caused by the publicity, which is that it suggests that the two men in the Shura allegedly went on to be involved in a terrorist act in the context of the accused’s defence at this trial being there was no intention that any terrorist act would in fact ever take place. I am not satisfied that any direction would cure the prejudice of the extensive reporting. Nor am I satisfied the jury could completely put the material out of their minds. This is because of the unfortunate timing of the publicity when juxtaposed with the jury being provided with copies of Exhibit L.

48. I have had regard to the observations of Johnson J in R (Cth) v Petroulias (No. 19) [2007] NSWSC 536 at [40] concerning an application for a discharge of the jury based on pre-trial publicity directed at persons in another trial involving similar issues. His Honour observed:

“…A question remains in each case whether the intensity, proximity and nature of the media coverage of the particular accused, or the particular circumstances, is such as to occasion the risk of unfairness to the accused so as to prejudice the accused’s right to a fair trial for a time after the publicity. A judgment is called upon in each case having regard to the particular facts which are proved.”

49. I am of the view that the intensity, proximity and nature of the relevant media coverage are highly problematic in this matter.

50. I note that this application to discharge the jury was made at a time when there have only been four days of evidence in this trial. The trial commenced on Monday, 24 April 2017. The following day was a public holiday. The evidence commenced on Wednesday, 26 April 2007 and proceeded on 27 and 28 April and 1 May 2017.

51. Overall, having regard to the significance of the reported material to the facts in issue in this trial, the dramatic nature of the relevant coverage, and the timing of the coverage vis-a-vis the provision to the jury of copies of Exhibit L, I am satisfied that no direction could cure the prejudice of the extensive reporting. Thus, I am satisfied that there is a real risk, as opposed to a fanciful risk, that the accused will be unable to have a fair trial. Accordingly, I propose to discharge the jury.

ORder

52. The application to discharge the jury is granted.

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Amendments

03 November 2025 - Publication restriction lifted.

Decision last updated: 03 November 2025