R v Cerantonio and Ors (Ruling No 18)

Case •

[2018] VSC 698

•

15 November 2018
IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0078; S CR 2017 0079
S CR 2017 0080; S CR 2017 0081
S CR 2017 0082; S CR 2017 0104

Between:

THE QUEEN

-and-

ROBERT EDWARD CERANTONIO
PAUL JAMES DACRE
ANTONINO ALFIO GRANATA
SHAYDEN JAMIL THORNE
KADIR KAYA &
MURAT KAYA

Accused

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JUDGE:

Croucher J

WHERE HELD:

Melbourne

DATES OF HEARING:

24 & 30 October and 8-9 November 2018

DATE OF RULING:

15 November 2018

CASE MAY BE CITED AS:

R v Cerantonio & Ors (Ruling No 18)

MEDIUM NEUTRAL CITATION:

[2018] VSC 698

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CRIMINAL LAW – Pre-trial ruling – Six men charged jointly with offence of engaging in conduct preparatory to offence of entering a foreign country with intention of engaging in a hostile activity in that country – Whether evidence of mere fact of utterances or actions of an accused (i.e. shorn of any beliefs that may be inferred from such behaviour at time of occurrence) is admissible in proof of belief, motivation or intention of that accused at time of charged conduct – Evidence inadmissible on that basis because either irrelevant or impossible to use it in the manner sought – Criminal Code (Cth), ss 11.2A & 119.4; Evidence Act 2008 (Vic), ss 55, 56, 59, 60, 95, 97, 101, 135 & 137; Ahern v The Queen (1988) 165 CLR 87; Elomar v The Queen (2014) 300 FLR 323; R v Karabegovic (Ruling No 3) [2015] VSC 641; Higgins (a pseudonym) v The Queen [2016] VSCA 47; Parachoniak v The Queen [2017] VSCA 347; R v Azari (No 7) [2018] NSWSC 1680.

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Appearances:

 Counsel Solicitors
For the Crown Mr R Maidment QC with
Ms R Sharp and
Ms A Peek 		Solicitor to Commonwealth Director of Public Prosecutions
For Robert Cerantonio Mr J Williams with
Dr G Boas 		Stary Norton Halphen
Criminal Lawyers
For Paul Dacre Mr J McMahon SC with
Ms G Morgan 		Slades & Parsons
Criminal Lawyers
For Antonino Granata Mr C Farrington with
Mr C Terry 		Patrick W Dwyer
Barristers & Solicitors
For Shayden Thorne Mr S Moglia with
Ms G Connelly 		Doogue O’Brien George
Barristers & Solicitors
For Kadir Kaya Mr D Hallowes SC with
Ms F Todd 		Galbally & O’Bryan
Defence Lawyers
For Murat Kaya Mr D Dann QC with
Mr M Goldberg 		James Dowlsey & Associates
Criminal Law

HIS HONOUR:

Overview

  1. On this pre-trial application to exclude evidence, I am asked to rule on the following very narrow question.  The Crown submits that evidence of the mere fact of certain utterances or actions by the accused – i.e. utterances or actions completely shorn of any belief or state of mind of that accused as may be inferred from such utterances or actions at the time of their occurrence – is admissible against that accused in proof of the belief, motive or intention that he held at the time of entry into the alleged agreement the subject of the charged offence.  The accused submit that, relied on in the way urged by the Crown, the evidence is either irrelevant or, if of any probative value at all, must be excluded in any event.

  1. For at least three reasons, upon which I shall expand presently, I am satisfied that the evidence is inadmissible or should not be admitted on the basis on which the Crown seeks to rely.  First, the mere fact of those utterances or actions is of no probative value and is therefore irrelevant to proof of any fact in issue in the trial of the accused who made the utterances or engaged in the actions.[1]

    [1]See, e.g., R v Azari (No 7) [2018] NSWSC 1680 at [44]-[47] (N Adams J).

  1. Secondly – and this is perhaps another way of saying the same thing – the mere fact of the utterances or actions cannot sensibly be used in the manner the Crown seeks to use it.  Relied on in that fashion, the evidence is no more than a collection of words or acts.  The only way in which the prior utterances or actions of the accused may be relevant to proof of that accused’s belief, motive or intention at the time of entry into the alleged agreement is if, and only if, the earlier utterances or actions may be used initially in proof of the accused’s belief or state of mind at the time of such utterances or actions, which in turn may support an inference that the accused still had that belief or state of mind at the time of committing the alleged offence.[2]  Yet, in an approach that I find confounding, while I understood the latter potential line of reasoning to be pressed by the Crown at an earlier stage in these proceedings, it is now expressly eschewed.

    [2]See, e.g., Elomar v The Queen (2014) 300 FLR 323 at 396[353]-400[372] (Bathurst CJ, Hoeben CJ at CL & Simpson J); R v Karabegovic (Ruling No 3) [2015] VSC 641 at [183]-[207] (John Dixon J); Higgins (a pseudonym) v The Queen [2016] VSCA 47 at [18]-[20] (Redlich, Weinberg & Osborn JJA); Parachoniak v The Queen [2017] VSCA 347 at [7]-[9] (Maxwell P) & [63]-[72] (Priest JA).

  1. Thirdly, if, contrary to my view, there could be any probative value in the mere utterances or actions of an accused, it must be so low, and the risk of a jury’s finding the Crown’s suggested chain of reasoning misleading or confusing is so high, or the risk of their misusing the evidence in a manner contrary to the Crown’s disavowal of its use for any hearsay, admission, belief or state of mind purpose is also so grave, that the evidence must be excluded pursuant to either or both of ss 135 and 137 of the Evidence Act 2008 (Vic) (“the Evidence Act”).

  1. None of this is to say that the evidence caught by this ruling is necessarily inadmissible for any purpose whatsoever.  As discussed in the course of oral argument, there may be reasons why at least some aspects of these utterances or actions may be admissible on other bases.  For example, as I have indicated, the Crown previously argued, but now eschews, reliance on the evidence in proof of the belief or the state of mind of the particular accused at the time he made the utterances or engaged in the actions, which in turn might be relevant to proof of that accused’s belief or state of mind at a later time.  Similarly, depending upon the circumstances of the alleged acts or utterances, some of the evidence might be admissible against co-accused as original evidence of an agreement.  There may be other examples as well.  I await the parties’ submissions on those issues.

  1. But, I repeat, this ruling is confined to the very narrow question framed at the outset of these reasons.  And, on that narrow issue, the Crown must fail and the accused must succeed.

Background

  1. Before turning to the challenged evidence, the parties’ submissions and my reasoning in more detail, it is necessary to set out the background to this application, including some key aspects of the Crown case.

  1. On 10 May 2016, five of the six accused, all of whom hail from Melbourne, were arrested by police near Laura, a hamlet in the far north of Queensland. They had travelled there from Victoria in a Hyundai SUV towing a seven-metre Haines Hunter boat. Police had had the men under surveillance for a considerable period and suspected that they had been preparing to head overseas in the boat to a foreign country for the purpose of engaging in a hostile activity in Syria or Northern Iraq. Each man was charged individually with an offence of that nature against s 119.4(1) of the Criminal Code (Cth) (“the Code”). The sixth accused, who remained in Victoria but was arrested later, was also charged with the same offence.

  1. Having been committed for trial in this Court a year or so later, all six accused are now charged jointly on indictment with an offence against s 119.4(1) “by virtue of” s 11.2A of the Code. That indictment and its particulars have taken a few different forms,[3] but the essence of the Crown case has become this.  It is alleged that, between 22 October 2015 and 10 May 2016, each accused joined in an agreement to engage in conduct preparatory to entering the Philippines with intent to encourage or join with others there in conduct aimed at overthrowing the government of the southern Philippines by force or violence.[4]

    [3]See The Queen v Cerantonio & Ors (Rulings 1-11) [2017] VSC 725; The Queen v Cerantonio & Ors (Ruling 13) [2018] VSC 35; and The Queen v Cerantonio & Ors (Ruling 15) [2018] VSC 77.

    [4]Amended Crown Response to Outlines of Submissions on behalf of the Accused (16 October 2018) at [1].

  1. Part of the Crown case is that the accused were motivated by a belief that every faithful Muslim living in a non-Muslim country, particularly one that is ‘at war’ with Muslims (as the accused believed Australia to be), is obliged to engage in hijrah – i.e. the migration from that country to another governed by sharia law or, at least, one inhabited predominantly by Muslims.  Engagement in hijrah enables the migrant to fulfil his obligation to perform violent jihad, if that is required, to establish governance by sharia law in the destination land.[5]

    [5]Amended Crown Response to Outlines of Submissions on behalf of the Accused (16 October 2018) at [1].

  1. The essence of those beliefs is that the perceived obligations are mandated commands of Allah communicated through the Koran and reflected in the sayings of the prophets (“hadiths”).  After death, so it is said, those who fulfil the obligations are destined to enter paradise (“Jannah”).  Those who fight and die in discharge of the obligation of jihad are martyrs (“Shaheed”) and are entitled to receive the privileges and benefits of the highest ranks in Jannah.  On the other hand, those who fail in or refuse to perform their obligations are in breach of Allah’s law and are destined for the fires of hell.[6]

    [6]Amended Crown Response to Outlines of Submissions on behalf of the Accused (16 October 2018) at [2].

  1. The Crown seeks to rely on proof of motive or purpose against each accused as a step in the reasoning process towards proving the fact and nature of the alleged agreement, the fault elements of the offence and the participation of each accused in the agreement.[7]

    [7]Amended Crown Response to Outlines of Submissions on behalf of the Accused (16 October 2018) at [4].

  1. Thus, it is argued, proof that the accused held beliefs of the kinds set out above at the time they engaged in the charged preparatory behaviour arguably supports the inference that they were motivated to join an agreement of the type alleged with the intention alleged in the fault elements of the offence.  The Crown submits that, “[i]f accepted, that evidence (in the context of the other evidence) could rationally affect, inferentially, the assessment of the probability of the accused intending to engage in hostile activities in the Philippines”.[8]

    [8]Amended Crown Response to Outlines of Submissions on behalf of the Accused (16 October 2018) at [3].

  1. Fundamental to proof of the Crown case, it is said, is evidence demonstrating that, between 22 October 2015 and 10 May 2016, the first accused Robert Cerantonio held religious beliefs that motivated him to commit the offence charged.  The Crown says that it is to be inferred that the strength and intensity with which Mr Cerantonio held those beliefs at that time, and his charisma and authority, attracted each of the other accused to join him, and that each ultimately had similar motivations and intentions.[9]

[9]Amended Crown Response to Outlines of Submissions on behalf of the Accused (16 October 2018) at [5].

The impugned evidence

  1. I turn now to the impugned evidence.

  1. The parties’ submissions were delivered principally by reference to the paradigm of utterances by Mr Cerantonio in the course of his several lectures or pronouncements on various matters in the years leading up to the charged behaviour.  For example, there is evidence that Mr Cerantonio delivered lectures (which were recorded) to various audiences on 30 November 2012, 10 February 2013, 2 April 2013 and 8 April 2013.  Also, around 3 to 13 July 2014, he posted a series of tweets; and, on 11 October 2014 he posted an article he had written on “wordpress.com”.  Those lectures, tweets and posts are said to concern several topics, including establishing a caliphate by violence, the obligation to do so, jihad, the obligation to protect Islam, what is and what is not a legitimate target in defence of Islam, the Philippines (including the plight of the Muslim people there), the Islamic State (“IS”) (including its use of force), the IS in Mindanao and Sulu, and the obligation to do hijrah.[10]

    [10]See Evidentiary Foundation for Proposed Ruling (12 November 2018) (a document filed jointly on behalf of all accused), ‘Table of Evidence for Proposed Ruling’ at ‘Proposed Agreed Facts’ 35, 36, 37, 38, 39, 41 & 50.

  1. Other evidence that the parties urged be covered by this ruling includes evidence to which the Crown seeks to apply the same reasoning as it submits justifies the admissibility of evidence of Mr Cerantonio’s lectures – which is that it is only the fact of the utterances or actions that is relevant, not anything that may be implied about the belief or state of mind of the utterer or actor at the time of that behaviour.  In particular, counsel urged that the ruling extend to “the acts and declarations of any particular accused, and its admissibility against that accused, both prior to and during the charged period”.[11]

    [11]See the submissions of Mr Hallowes SC, who appears with Ms Todd for Kadir Kaya, on 9 November 2018 (T 3245.12-18); and Evidentiary Foundation for Proposed Ruling (12 November 2018) at [3]-[4] and ‘Table of Evidence for Proposed Ruling’.

  1. These other items of evidence, along with Mr Cerantonio’s lectures, tweets and posts, are listed in a table in a document filed jointly by counsel on behalf of all accused for the purposes of this ruling.[12]  Thus, to take just one of the many examples in relation to each of Mr Cerantonio’s co-accused, there is evidence that:

    [12]Evidentiary Foundation for Proposed Ruling (12 November 2018), ‘Table of Evidence for Proposed Ruling’.

a)          on 25 January 2014, Antonino Granata exchanged Facebook messages with a person said to be a known ‘fighter’, in which Mr Granata spoke of inter alia Shaheed and hoping that the fighter is granted Jannah;[13]

[13]Evidentiary Foundation for Proposed Ruling (12 November 2018), ‘Table of Evidence for Proposed Ruling’ at ‘Proposed Agreed Fact’ 42.

b)         on 30 June 2014, Paul Dacre accessed a web page concerning the Islamic State declaration of a caliphate;[14]

[14]Evidentiary Foundation for Proposed Ruling (12 November 2018), ‘Table of Evidence for Proposed Ruling’ at ‘Proposed Agreed Fact’ 44.

c)          on 26 July 2015, Murat Kaya and Mr Dacre exchanged messages concerning the “validity of the [caliphate]”;[15]

[15]Evidentiary Foundation for Proposed Ruling (12 November 2018), ‘Table of Evidence for Proposed Ruling’ at ‘Proposed Agreed Fact’ 72.

d)         on 25 to 26 August 2015, Shayden Thorne posted messages on a chat group concerning a Salafist scholar;[16] and

e)          on 15 October 2015, Kadir Kaya was interviewed on a Melbourne radio programme, where he spoke of inter alia his intention to depart Australia, his desire to be involved in conflict overseas and his attitude to having Muslim and non-Muslim areas.[17]

[16]Evidentiary Foundation for Proposed Ruling (12 November 2018), ‘Table of Evidence for Proposed Ruling’ at ‘Proposed Agreed Fact’ 89.

[17]Evidentiary Foundation for Proposed Ruling (12 November 2018), ‘Table of Evidence for Proposed Ruling’ at ‘Proposed Agreed Fact’ 104.

  1. No separate argument was developed by the parties as to how the analysis that was urged by the Crown in respect of Mr Cerantonio’s lectures, tweets and posts might apply to these other pieces of evidence.

The Crown’s position

  1. I turn now to the submissions of the parties.

  1. In (amended) written submissions filed on 16 October 2018, the Crown put its position in the following way:[18]

[13]  Having reviewed the submissions filed and arguments to date, the Crown maintains its position that evidence of the acts and declarations of the accused prior to and during the charged period is admissible for the purposes set out in the Schedule.[19]  However, in the interests of simplifying the case, the Crown no longer seeks to rely on that evidence as direct evidence of a state of mind. at the time at which those acts and declarations were made.

[14]  Thus, the Crown seeks to rely on the evidence, comprising the acts and declarations of each the accused, but principally Cerantonio prior to and during the charged period not to prove the truth of those declarations, or the state of mind of the actor at the time the acts and declarations occurred, but as circumstantial evidence relevant to proof of determining the state of mind of each accused at the time he joined the agreement during the charged period.  That state of mind is relevant to determining the nature and scope of the agreement alleged, in particular, the intended conduct in the Philippines.

[15]  The critical distinction is that the evidence of the acts or declarations of a particular accused is relied on to prove only the fact of that act or declaration.  For example, Cerantonio’s acts and declarations, in his lectures in 2012-2014 and twitter feed in 2014, prior to the charged period is are to be used to prove the fact Cerantonio espoused those views at the time they were made and or published (including subsequent publications), NOT that he held those views at that time.

[15A]  The Crown does not seek to rely on any act or declaration of any accused, either before or during the charged period, as an “admission”.

[16]  In that way, evidence of the acts and declarations of the accused, but principally Cerantonio, prior to the charged period, is to be used in the trial of each accused as circumstantial evidence of the fault elements of the crime charged.

[18]Amended Crown Response to Outlines of Submissions on behalf of the Accused (16 October 2018) at [13]-[16].  I have left in the Crown’s edits (as shown in red and in strike-through).

[19]On 18 December 2017, I upheld a defence submission that, despite the Crown’s provision of an indictment, a brief of evidence, a summary of the prosecution opening and several other documents identifying aspects of the evidence and the case against the (multiple) accused, this Court nevertheless should order the Crown to provide, in addition, a document – perhaps in tabular form – that specifically identifies the evidence to be relied on against each accused and the purpose for which that evidence is to be led (The Queen v Cerantonio & Ors (Summary of Ruling 12) (18 December 2017)).  This document, which ultimately was provided by the Crown and has had various iterations, became known as the ‘Ruling 12 Schedule’ or the ‘Schedule’.

  1. Subsequently, in further written submissions filed on 29 October 2018, the Crown reiterated its (new) stance, and referred to the High Court’s judgment in Ahern v The Queen[20] in support of the position taken.  In particular, the following was said:[21]

    [20]Ahern v The Queen (1988) 165 CLR 87.

    [21]Further Crown Response to Outlines of Submissions on behalf of the Accused (29 October 2018) at [3]-[8].

[3]  The Crown relies on circumstantial evidence inferentially to prove the fact, nature and scope of the agreement.

[4]  Such an approach is orthodox and accords with Australian law.  So much was made clear by the High Court in Ahern:[22]

Conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means and it is the fact of the agreement, or the combination, to engage in a common enterprise, which is the nub of the offence.  This fact can seldom be proved by direct evidence of the making of an agreement and must in almost all cases be proved as a matter of inference from other facts, that is to say, by circumstantial evidence.  For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others, provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement.  It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred.  Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule ...

[5]  None of the circumstantial evidence is to be led or relied on “to prove against the others the truth of any assertion or implied assertion made by the actor or maker of the statement”.[23]  All the “separate acts or utterances” of the accused are to be led and relied on, in the context of the whole of the evidence, to prove the fact, nature and scope of the agreement.

[6]  Even where the act or utterance of an accused involves an express or implied assertion, the evidence is not excluded by the hearsay rule[24] because it is not tendered to prove the existence of any fact that it can reasonably be supposed that the accused intended to assert by the act or utterance.  That evidence is tendered as a relevant fact, namely to prove the fact of the act or the fact of the words uttered.  It is from those facts, in the context of the whole of the evidence, that the fact, nature and scope of the agreement may be inferred.

[7]  In each case, the item of evidence is tendered to prove the saying, writing or publication of the words used, not the truth of any fact asserted by those words.  Once the fact of the saying, writing or publication is accepted by the jury, the fact forms part of the circumstantial evidence from which the elements may be inferred.

[8]  In relation to some items of evidence, the distinction may be a fine one.  But it is one that must be drawn.[25]

[22]          Ahern v The Queen (1988) 165 CLR 87 at 93 (underlining added in the Crown submissions).

[23]          In the footnote, the submission cited Ahern v The Queen (1988) 165 CLR 87 at 93.

[24] In the footnote, the submission referred to s 59(1) of the Evidence Act 2008 (Vic).

[25]In the footnote, the submission cited Walton v The Queen (1989) 166 CLR 283 at [21] (Mason CJ) and [24] (Wilson, Dawson & Toohey JJ). I am afraid that I did not understand to which passages in the judgments those references related.

  1. The Crown then turned to an example in an attempt to explain and illustrate the distinction sought to be drawn:[26]

    [26]Further Crown Response to Outlines of Submissions on behalf of the Accused (29 October 2018) at [9]-[19] & [21].

[9] In their Submissions dated 1 October 2018 (Thorne Submissions) at paragraph 16, counsel for Thorne identify a good example of an item of evidence where the need for drawing the distinction arises.  They refer to Cerantonio’s tweet published on 8 April 2014.  As counsel for Thorne suggest, the tweet carries an implied assertion of fact that on that date Cerantonio believed there should be an Islamic state in Mindanao and Sulu.

[10]  If the Crown [were] relying on the tweet to prove that fact, it would be hearsay and inadmissible in the case of Thorne.

[12]  However, the item of evidence is not tendered to prove that fact.  The evidence is tendered to prove the fact Cerantonio posted the tweet on that date.  That fact is relevant because, in the context of the whole of the evidence, it could[27] rationally affect (indirectly) the probability of the existence of a fact in issue, namely an intention on the part of Cerantonio at the time of joining the agreement to do acts in preparation for entering the Philippines with intent to encourage or engage in conduct with the objective effectively of establishing an Islamic state by force or violence.

[27]In the footnote, the submission said:  “Use of the word ‘could’ rather than ‘would’ and recognition of indirect connection with the facts in issue in 55(1) of the Evidence Act 2008 makes plain that the bar to the determination of relevance is intentionally set as a low one. See Smith v The Queen (2001) 206 CLR 650 at [45]; R v Chanthovixay [2004] NSWCCA 285”.

[12]  The evidence “could” (and the Crown says would) rationally affect (indirectly) the probability of the existence of that fact in issue because, along with evidence of the multitude of other acts and utterances by Cerantonio occurring before and during the charged period, the jury “could” infer that when he joined the agreement Cerantonio was motivated to join the agreement with the alleged intent.

[13]  Of course, in isolation, a tweet in April 2014 could be said to carry little if any weight in proof of an agreement made eighteen months to two years later.[28]  However, when considered in the context of the many other fragments of circumstantial evidence in the mosaic[29] of the Crown case, it “could” assist the jury to determine whether, at the time he joined the agreement, Cerantonio was so motivated by religious beliefs to help establish an Islamic state, that he and his co-accused agreed to prepare to act on those beliefs in relation to the southern Philippines.

[28]In the footnote, the submission said:  “In Mackay v R [1985] VR 623, the Court (Kaye, Fullagar & Beach JJ) held that evidence of a threatening phone call made two years before the alleged offence was admissible evidence as to motive, see pp 633-636”.

[29]In the footnote, the submission said:  “See Elomar v The Queen (2014) 300 FLR 323 at [240]. Note, special leave to appeal Elomar was refused on 19 October 2018: [2018] HCATrans 219”.

[14]  As Gleeson CJ said in HML v The Queen:[30]

[30]In the footnote, the submission cited HML v The Queen (2008) 235 CLR 334 at [6].

Information may be relevant, and therefore potentially admissible as evidence, where it bears upon assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence.  It may explain a statement or an event that would otherwise appear curious or unlikely.

[15]  The process of analysis set out in paragraphs 3 to 13 above should be applied to every other item of circumstantial evidence which carries an express or implied assertion of fact.  Each item of evidence is relied [on] to prove motive and thereby the intent of each accused in joining the agreement.

[16]  As is pointed out in the Thorne Submissions at paragraph 19, Cerantonio’s tweet of 8 April 2014 would be admissible in the case against him as an admission.  However, as is made clear in the Crown Submissions, the Crown seeks to simplify the burden on the jury and the Court by eschewing reliance on the evidence as an admission.[31]

[17]  Any risk of the jury relying on an item of circumstantial evidence as an admission in the case against the maker of the admission can be addressed adequately by direction.

[18]  Consequently, the directions to the jury on the use of the circumstantial evidence in the cases against all accused will be standard.[32]

[19] That an item of evidence that is admissible as circumstantial evidence could also support tendency reasoning does not bring the evidence within the ambit of s 97 of the Evidence Act. However, in accordance with s 95 of the Evidence Act, evidence that is admitted as circumstantial evidence may not thereby be used for the purpose of proving a tendency.

…

[21]  Again, the Crown has eschewed reliance on the evidence to prove a tendency.[33]  Any risk of the jury reasoning in that way can be addressed adequately by direction.

[31]In the footnote, the submission refers back to Amended Crown Response to Outlines of Submissions on behalf of the Accused (16 October 2018) at [13], [15A] & [97].

[32]In the footnote, the submission cites the Victorian Criminal Charge Book at part 3.5.2.

[33]In the footnote, the submission refers back to Amended Crown Response to Outlines of Submissions on behalf of the Accused (16 October 2018) at [141].

  1. During the course of oral argument on 30 October and 8 and 9 November 2018, the Crown maintained its argument in accordance with these written submissions.

Defence response

  1. I turn now to the arguments of the accused.  While oral submissions were put separately on behalf of each accused, in substance, they reduced to the same basic points.

  1. First, it was submitted that, absent reliance on what might be inferred to be the particular accused’s belief or state of mind at the time of the utterances or acts, that behaviour is of no probative value and is therefore irrelevant in his case.

  1. Secondly, if the evidence had any probative value at all, to ask a jury to reason in the fashion urged by the Crown would be confusing and would risk jurors doing precisely that which is forbidden anyway, despite any directions to the contrary. This is because the only sensible use that could (or would) be made of the utterances or actions would be to show that they amounted to implied admissions or beliefs against the particular accused at that time, which is contrary to the stated disavowal of reliance on that behaviour for any such purpose. Thus, the evidence would have to be excluded pursuant to ss 135 and/or 137 of the Evidence Act.

  1. Thirdly, counsel also submitted that the Crown’s reliance on the passage in Ahern was misplaced.  That case, it was submitted, concerns the admissibility of evidence of the acts or declarations of alleged co-conspirators outside the presence of the others, from which the fact of combination might be inferred, provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement, whereas the narrow question in this case concerns whether evidence of an accused’s own acts or declarations is admissible against him, merely for the fact that they occurred, in proof of that accused’s belief, motive or state of mind at the time of entering into the alleged agreement.

  1. Finally, counsel also relied on the reasoning of N Adams J in her Honour’s very recent ruling in R v Azari (No 7).[34]  (I should add that the Crown, quite properly, drew this decision to the attention of the accused and the Court.)  In that trial, it was alleged that, on 15 September 2014, Mr Azari engaged in a telephone conversation with Mohammed Ali Baryalei in preparation for a terrorist act.  The call involved discussion about killing random members of the public in Australia.  Mr Baryalei was a senior figure in the Islamic State and was in either Syria or Iraq at the time of the call.  At issue was the admissibility of telephone calls made between Mr Baryalei and Hamdi Alqudsi in June and August 2013.  Those men (and the accused) were said to be part of a Sydney-based shura – a consultative council promoting radical religious and ideological beliefs.  In their calls, the two men discussed the departure of others from Australia to join Mr Baryalei, the pledge of allegiance to Islamic State, the shura and other related topics.  The accused was not mentioned in the calls.  The Crown submitted that the content of the calls was relevant and admissible as circumstantial evidence capable of proving, indirectly and together with other evidence, that the accused held the requisite intention when he had his call with Mr Baryalei.

    [34]R v Azari (No 7) [2018] NSWSC 1680. The ruling was delivered on 2 November 2018.

  1. N Adams J remarked that, while some of the content of the impugned calls may have been relevant, it was difficult to see how they were relevant unless admitted for a hearsay purpose (which the Crown eschewed).  Ultimately, her Honour held that:[35]

In order for the jury to draw [the inferences the Crown sought] from the relevant [telephone] conversations …, it is simply not the fact that the words were spoken which is relevant but the proof of what was being asserted therein to show the actions and beliefs of the two men, and indirectly those of the accused as a member of the shura.  The relevant inferences could not be drawn unless this was the case.  I am thus satisfied that the calls are either inadmissible as hearsay evidence or, alternatively, irrelevant if not in for a hearsay purpose.

[35]R v Azari (No 7) [2018] NSWSC 1680 at [47].

  1. In counsel’s submission, the same type of reasoning is applicable here.  In particular, the evidence of the accused’s utterances or actions are irrelevant absent any reliance on the belief or state of mind that those utterances or actions might be said to imply at the time they were made.

Consideration

  1. I turn to my consideration of these arguments.

  1. First, I shall address the accused’s reliance on Azarai (No 7).  Of course, the facts are quite different, and the ruling concerns third-party conversations rather than an individual accused’s utterances or actions, but I accept the submission that the point is substantially the same here and that N Adams J’s reasoning is applicable to this case.  In particular, in the same way that the content of the calls was irrelevant without proof of what was being asserted in them to show the beliefs and actions of the two men (and then, indirectly, those of Mr Azari), so too here evidence of an accused’s utterances or actions is irrelevant to any fact in issue without reliance on the belief or state of mind implicit in those utterances or actions at the time they occurred.

  1. Secondly, however, while I am comforted in my conclusions that another judge has dealt with a not dissimilar problem in a similar way, my conclusion does not depend upon on an attempt to apply her Honour’s reasoning to the present case. Instead, it is the application of what I regard as a common sense notion about the way in which rational human beings reason, as applied to the fundamental legal requirement of relevance set out in ss 55 and 56 of the Evidence Act, that drives me to accept the accused’s submission.

  1. Section 55(1) provides that “[t]he evidence that is relevant in a proceeding 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”. Section 56(2) provides that “[e]vidence that is not relevant in the proceeding is not admissible”. “Probative value” is defined in the dictionary to the Evidence Act as meaning “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”.

  1. The facts in issue in the separate trial of each accused will include related questions concerning whether there was an agreement of the type alleged, whether the accused in question was a participant in any such agreement and whether he had the requisite states of mind for the fault elements.

  1. But, try as I might, I cannot see how the mere fact of an utterance or action by an accused, shorn of reliance on any inference about what such behaviour might say about his belief or state of mind at the time of the utterance or action, could rationally affect (directly or indirectly), as against him, the assessment of the probability of the existence of any of those facts in issue in the proceeding.  Put another way, relied on in the fashion urged by the Crown, the evidence has no probative value at all.  This is because, without some resort to what such utterances or actions might say about the accused’s belief or state of mind at the time of their occurrence, the utterances or actions are nothing more than a collection of words or behaviours, and therefore can say nothing about his belief or state of mind at the time of the alleged (subsequent) occurrence of the facts in issue.  Thus, the evidence is not relevant and is therefore inadmissible.

  1. Thirdly, I accept the accused’s submission that the Crown’s attempt to bring its argument within the principles discussed in Ahern is misplaced.  It is true that the passage extracted in the Crown’s further written submissions (of 29 October 2018), and set out above, supports the proposition that evidence of “the acts or declarations of one alleged conspirator made outside the presence of the others, provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement”, may be used for the purpose of inferring the fact of combination.  It seems that at the heart of the Crown’s submission in the present case is an attempt to apply that reasoning to utterances or actions by an individual accused indirectly in proof not just of the fact of an agreement among the accused but also of that particular accused’s participation in the agreement and of his doing so with the requisite state of mind.  It also seems to be thought that this approach somehow avoids any perceived difficulties about the more direct use of the evidence in a hearsay, admissions or state of mind fashion.  But, whatever be the Crown’s reasons for seeking to do so, there are fundamental flaws in the reliance on Ahern.

  1. First, the passage extracted from Ahern concerns the admissibility of evidence of the acts or declarations of alleged co-conspirators outside the presence of the others, from which the fact of combination might be inferred, whereas the narrow question in this case concerns whether evidence of an accused’s own acts or declarations is admissible against him, merely for the fact that they occurred, in proof of that accused’s belief, motive or state of mind at the time of entering into the alleged agreement.[36]  And yet there is nothing in the extracted passage that suggests that an accused’s own acts or utterances could be used against him in proof of his belief or state of mind at the time of the charged behaviour, if those acts or utterances are shorn of the belief or state of mind that might be inferred from them at the time of their occurrence.

    [36]For the purposes of these reasons, I do not consider it necessary to distinguish between, on the one hand, the principles discussed in Ahern v The Queen as they apply to conspiracy cases, as Ahern itself was, and, on the other, a case of joint commission, as the present case is.

  1. Secondly, Ahern also stands for the proposition that evidence of acts or utterances of an alleged co-conspirator outside the presence of the accused will be admissible to prove the participation of that accused in the conspiracy only where it is first established that there was a combination of the type alleged, that the acts or utterances were performed in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was also a participant.  This is the so-called “co-conspirators’ rule”.  Used in this way, the evidence of the acts or declarations of others will be led to prove the truth of the assertion or implied assertion contained in those acts or declarations, based upon a principle of implied authority.[37]  Yet the Crown in this case have disavowed any reliance on the co-conspirators’ rule.[38]  Further, aside from attempting to squeeze the hobbit-sized foot that is the reasoning the Crown urges about inferences to be drawn against an accused who engaged in the acts or utterances into the dainty glass slipper that concerns the acts or utterances of co-conspirators in the absence of the accused, as the submissions make clear, the Crown also eschew reliance on the express or implied assertions that might be contained in the acts or declarations of the accused in question.

    [37]See Ahern v The Queen (1988) 165 CLR 87 at 94-95. See also Tripodi v The Queen (1961) 104 CLR 1 at 7.

    [38]See the submissions of Mr Maidment QC, who appears with Ms Sharp and Ms Peek for the Crown, on 8 November 2018 (T 3186.26-30).

  1. In attempting to understand the Crown’s position, I wondered whether at least part of the underlying submission is to the effect that, if the extracted passage in Ahern justifies the use of the mere fact of acts or declarations of absent co-conspirators in proof of combination, then why would the mere fact of perhaps some of an accused’s own acts or utterances, when coupled with other evidence, not be capable of proving at least an agreement (if not participation in such an agreement or the necessary state of mind required to prove the fault elements).  After all, both forms of reasoning are a form of inferential reasoning based on some sort of objective assessment of human behaviour.  But, this is not the way in which the matter was argued.  Further, and in any event, I think that to attempt to adapt the passage in Ahern in that way is not merely to attempt to jam a big foot into a tiny shoe but is to smash the glass slipper to smithereens.

  1. Finally, I accept the accused’s alternative submission to the effect that, if, contrary to my view, there is some probative value in the mere fact of the subject utterances or actions, that probative value must be very low. Further, I also accept that to ask a jury to reason in the fashion urged by the Crown still would be thoroughly confusing and would risk jurors doing precisely that which is forbidden anyway, despite any judicial directions to the contrary. I fear that the only meaningful use that a jury would be likely to make of the utterances or actions would be to infer that they amounted to implied admissions or beliefs at that time, which is contrary to the Crown’s stated disavowal of reliance on that behaviour for any such purpose. To direct the jury not to reason in that fashion would be futile. Directions to a jury must make sense. The directions implicit in the Crown’s argument would bemuse even the greatest of legal minds. Thus, I accept that the evidence would have to be excluded pursuant to ss 135 and/or 137 of the Evidence Act in any event.

Conclusion

  1. Accordingly, on the basis for admissibility urged by the Crown, the evidence in issue is either inadmissible or otherwise should not be admitted at trial.

  1. I shall hear the parties on what is to occur next.

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Cases Citing This Decision

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R v Cerantonio (Ruling No 19) [2018] VSC 725
Cases Cited

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R v Azari (No 7) [2018] NSWSC 1680
R v Karabegovic (Ruling No. 3) [2015] VSC 641
Higgins (a pseudonym) v The Queen [2016] VSCA 47