R v Elomar (No 11)

[2009] NSWSC 385

CITATION:	Regina (C'Wealth) v Elomar & Ors [No 11] [2009] NSWSC 385
HEARING DATE(S):	19/02/09
JUDGMENT DATE :	23 February 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
DECISION:	I hold that the evidence should not be excluded and may be admitted at trial.
CATCHWORDS:	CRIMINAL LAW - Application to exclude evidence - Seizure of CD's without investigation as to their contents - Absence of belief of seizing officers - Retention by police of seized items after conclusion of criminal proceedings - Consideration of the ambit of matters relevant under s 138 Evidence Act 1995 - Importance of evidence to Crown case
LEGISLATION CITED:	Crimes Act 1914 (Cth) Crimes Act 1958 (Vic) Evidence Act 1995 (NSW)
CASES CITED:	Allitt v Sullivan (1988) VR 621 per Brooking J at pp 634-690 Bartlett v Weir (1994) 72 A Crim R 511 at 518 per Beazley J) Chic Fashions (West Wales) Pty Ltd v Jones (1968) 2 QB 299 at 313 at 316 Dixon v Stephens, Supreme Court of NSW, Street J, unreported 2 September 1971 Esso Australia Limited v Curran (1989) 39 A Crim R 57 at 169 George v Rockett (1990) 170 CLR 104 at 115 GH Photographs v McGarrigle (1974) 2 NSWLR 635 at 644-645 Ghani v Jones (1970) 1 QB 693 at 706 Greer v Commissioner of Police [2002] 128 A Crim R 586 Hart v Commissioner of Australian Federal Police & Ors [2002] 124 FCR 384 at 71-73 Joseph Puglisi & Anor v Australian Fisherman's Management Authority (1997) FCA 846 per Hill J Marinko v Rames Supreme Court of NSW, Hope J unreported 13 August 1971 Ozzie Discount Software (Aust) pty Limited v Muling (1996) 86 A Crim R 397 Parker v Churchill (1985) 63 ALR 326 at 337 per Burchett J Reynolds v Commissioner of Police (1985) 2 WLR 93 R v Baladjam [No 48] 30 September 2008 at (247-254) R v Elomar [No 6] 16 December 2008 at (28-35) Trimboli v Onley [No 3] (1981) 56 FLR 321 Tye v Commissioner of Police (1995) 84 A Crim R 147 per Studdert J
PARTIES:	Regina (C'Wealth) v Mohamed Ali ELOMAR [11] Regina (C'Wealth) v Abdul Rakib HASAN Regina (C'Wealth) v Khaled CHEIKHO Regina (C'Wealth) v Moustafa CHEIKHO Regina (C'Wealth) v Mohammed Omar JAMAL
FILE NUMBER(S):	SC 2007/2399001; 2007/2400001; 2007/2395001; 2007/2398001; 2007/2452001
COUNSEL:	R Maidment SC; G Bellew SC; C O'Donnell; S McNaughton - Crown D Dalton SC; E Ozen - Accused Elomar D Yehia; S Beckett - Accused Hasan C Waterstreet; P Lange - Accused K Cheikho R Button SC; I Nash - Accused M Cheikho G Scragg; D Carroll - Accused Jamal
SOLICITORS:	C'Wealth DPP - Crown Nyman Gibson Stewart - Accused Elomar Legal Aid Commission - Accused Hasan Lawyers Corporation Ltd - Accused K Cheikho William O'Brien & Ross Hudson Solicitors - Accused M. Cheikho Michael Doughty Solicitors - Accused Jamal

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

PARRAMATTA: MONDAY 23 February 2009

2007/2399001 - Regina v Mohamed Ali ELOMAR [No 11]
2007/2400001 - Regina v Abdul Rakib HASAN
2007/2395001 - Regina v Khaled CHEIKHO
2007/2398001 - Regina v Moustafa CHEIKHO
2007/2452001 - Regina v Mohammed Omar JAMAL

JUDGMENT - On application to exclude evidence – s 138 Evidence Act 1995 – belief of searching officers based on reasonable grounds – s 465 Crimes Act, (Victoria) – seizure of computer and discs – right of retention – power to make copy

1 HIS HONOUR: This is an application made on behalf of Khaled Cheikho to exclude certain evidence sought to be relied on by the Crown at trial. Khaled Cheikho is one of five men accused of conspiring to do acts in preparation for a terrorist act or acts. The trial is now in its fourth month.

2 The Crown case includes an allegation that there was, in 2004-05, an association between the accused and a number of men from Melbourne. It is said the Melbourne men held similar extremist views to their own. One of the Melbourne men is known in this trial as Sheikh Bakr. He is alleged to have been the spiritual guide and advisor to the other Melbourne men, and to a number of the Sydney accused. Sheikh Bakr's associates in Melbourne included three men known in this trial as Aimen, Ahmed and Ezzit.

3 On Friday 17 September 2004 police officers executed a search warrant issued under s465 of the Crimes Act 1958 (Vic). The warrant was executed at the home of Aimen, whose address was unit 1/56 Birchwood Boulevard, Hoppers Crossing. A number of items were seized. Included among those items was a laptop computer and four compact discs. An analysis of the material found on one of the discs revealed that it contained documents known as the White Resistance Manual, The Terrorists Handbook, The Vortex Cookbook, the Car Bomb Recognition Guide and CIA Field Guide Methods For Explosives Preparation. There was also a video clip entitled "Mortar Attack Afghanistan".

4 The Crown has indicated that it wishes to produce in evidence the CD and details of its contents. The evidence is said to be admissible as part of the Crown's circumstantial case in proof of the existence and nature of the conspiracy set out in the indictment. Evidence of the relationship between Sheikh Bakr, Aimen and some of the Melbourne men with the Sydney accused is also said to be relevant on the same basis. In particular, it is said that weapon-caching techniques, detailed in the White Resistance Manual, appear to have been adopted as part of the implementation of the Sydney conspiracy. In addition, Khaled Cheikho is said to have downloaded a copy of the Terrorist Handbook on 24 December 2004, a further circumstantial factor in the Crown case.

5 Aimen was charged in the Victorian Supreme Court with possession of items that were connected with preparation for a terrorist act, knowing of the connection. One of those charges related to Aimen's possession of the CD containing the material I have described. Aimen was convicted of these charges in 2008, and he was sentenced in the Victorian Supreme Court on Wednesday 4 February 2009. It appears there was no challenge to the tender of the CD and its contents during the Melbourne trial.

6 Mr Lange of counsel presented the arguments on behalf of Khaled Cheikho in these proceedings. Counsel's primary argument was that the warrant had been executed in such a way that the evidence was obtained improperly and contrary to the dictates of the Victorian legislation. In addition, counsel argued that various actions subsequent to the seizure were either improper or illegal. As a consequence of these matters, Mr Lange submitted that the evidence should be excluded in this trial.

7 The Crown, through Mr Richard Maidment QC, opposed the exclusion of the evidence. The Crown submitted that no illegality or impropriety had taken place and that, in any event, the Court should exercise its discretion to permit the Crown to lead the evidence.

A detailed examination of the factual situation

8 The factual situation is rather complex. It will be necessary to go into some little detail concerning the events which took place in September 2004, and during the months that followed the crucial event.

9 The background to the issue and execution of the search warrant is to be found in intelligence that came into the possession of the authorities in July 2004. Melbourne police were informed that a terrorist attack was imminent in Victoria. There was a need to take immediate and urgent action. A task force was formed in late July 2004. It was formed at the Australian Federal Police headquarters. It involved a cooperative tasking, in Victoria, of police from the Victorian Police Force and members of the Australian Federal Police. The Task Force was known as Operation Pendennis. One of its leaders in Victoria was Detective Senior Sergeant Chris Clark. His AFP counterpart was Federal Agent Russell George. The investigation involved up to fifty members from both agencies. (Pendennis had its own New South Wales counterpart, but it is not necessary for this decision to give any detail about the New South Wales operation.) The Victorian side of Operation Pendennis involved the investigation of some thirteen individuals who were reasonably believed to have been involved in terrorist related activities. The three Victorian men I have named, and Sheikh Bakr, were among those who were considered to be persons of interest.

10 The immediate and urgent task facing Operation Pendennis was to discover whether there was an imminent terrorist attack. If such an attack was planned, it was necessary to discover its target or targets and to obtain urgent information about the likely perpetrators.

11 Telephone conversation intercepts were placed on the services operated by Aimen, Ahmed and Ezzit. In addition, listening device warrants were obtained. One of those was placed in a garage at the home of Ezzit. A conversation was intercepted on 10 September 2004 that gave considerable insight into the activities and intentions of the three men. It was clear from the contents of those conversations that Aimen and the others were involved in car theft and car re-birthing, as it is sometimes known. More importantly, the conversations credibly suggested that the criminal activities involved in re-birthing cars were being undertaken in order to obtain funds for terrorist purposes. Ezzit had expressed concern to the other men that, since the stolen car parts were being kept in his garage, he would be at considerable risk of being apprehended by the police. I will give a few examples:

“ER: I don't give a shit about whose garage man...stupid.
AR: What's stupid? You doing it in Allah's cause, is that stupid?
ER: In Allah's cause, man, not stealing, come on man.

AJ: It's what we have to do, man.

AR: What can I do, man? What more proof do you want? You think we can just go and get the weapons and walk off? We need money to get it. Praise is to Allah. Slowly, you have patience, man.”

12 Later Aimen said:

“Allah's merchandise is dear...is expensive, man. The pleasures of Allah is expensive”

13 The conversation continued: -

“AR: If you've got a better way of getting money, mate, I'll go for it.

AJ: He's worried, he's worried about having it here...in a tin shed.

AR: You'll point a gun at a kuffir's head and shoot him but you won't put the stolen car here.”

14 Later the men were discussing what might happen if they were sent to prison. The following conversation is recorded:

“AR: What do you mean it's for nothing...you know if even you did go to prison for this, every day you are in prison, what is it, every hour? When you do it in Allah's cause. How much is it? It's better than what? Sixty years or something?

AR: Sixty months or something.

AJ: ...one day and night in Allah's cause is better than rising for sixty months.

AR: Praise is to Allah.

AJ: Or sixty years.

AR: You know this, this is in your garage in Allah's cause. Every day and night it's in here, praise is to Allah, the reward you're getting.”

15 And, finally, there is a reference again to the religious justification for their criminal activities:

“ER: I don't know, man, I swear to Allah I don't know. I got to speak to the Sheikh, man.

AR: I think you need to speak to him too mate. Cause, man, you think this is not right.

ER: He showed me, he goes...

AR: He showed you, you know who Ibin Taymiah is?

ER: The blood and the money is lawful, all right?

AR: Praise is to Allah, is the Satan coming bro.

ER: But it does, but it doesn't say if it means during the war. That is during the war...they bombed the Australian embassy.

AJ: Then what, before it. If it was (forbidden in Islam)...taking it would be.

ER: Now, at the start didn't you ever feel...

AJ: Nuh.

ER: Don't you think to yourself, praise is to Allah, what am I doing this and its (forbidden in Islam).

AJ: Nuh.

ER: That's what's going through my head now about this. Only about this. Don't think about anything else. Only about this.

AJ: You know what? Don't think there is this one over here. Think, listen, say "how am I going to gather what I need to go in Allah's cause? What can I, how can I gather it?" Okay? How do you think the brothers in Chechnya...how do you think they gather? They go steal just like this. You don't see, you only see those nice macho videos where they're all holding AKs and all were shooting. You don't see what they do behind.

ER: I've seen it.

AJ: They don't do it every single day man. They do this. They take. You see all those nice, a hell for the Russians. It is not the nice pretty picture you see all the time.

ER: Yeah, I know.

AJ: The brothers put their lives at risk by doing this not by fighting. It's like, it's...exercise during the day. This is the real stuff.

AR: Praise is to Allah...if there's another way to get it, tell us and we'll go get it.

AJ: There isn't, there isn't.”

16 Detective Senior Sergeant Murray said that he formed the clear view, arising from this conversation, that there was a link between the stolen car and re-birthing activity, on the one hand, and the investigation into possible terrorist offences, on the other. The car re-birthing was a means to an end, that is, to generate funds to support the terrorist activities. Detective Senior Sergeant Murray said that there were several objectives in obtaining warrants for the searches of premises scheduled to be carried out on 17 September 2004. The most important objective was to get a reliable idea of the level of preparedness that the group may have had in relation to their terrorist planning. Secondly, there was an objective to disrupt the car re-birthing activity but, clearly, it was the less urgent of the two objectives.

17 Detective Senior Sergeant Murray described their task as endeavouring to locate "a smoking gun". This was a colourful phrase he used to describe the need to discover urgently whether there was in truth an imminent terrorist attack planned. The strategy employed to meet the two objectives was to utilise the services of the Victorian Motor Vehicle Theft Squad. Their task would be to obtain and execute a warrant under s465 of the Victorian Crimes Act. A warrant of this kind was to be executed at Aimen's premises to locate anything there that would, arising from a belief on reasonable grounds, afford evidence as to the commission of the car re-birthing offences. Secondly, other police involved in the Task Force operation were to obtain a second covert warrant and attend the premises for the purposes of locating material directly relevant to the urgent task confronting Operation Pendennis, namely, to seek out whether there was an immediate terrorist plot. (It is necessary to exercise some discretion in mentioning this second warrant and I will say nothing further about it other than to mention that, as it has turned out, it has little to do with the legal arguments ventilated concerning improprieties in relation to the s465 warrant. For that reason, it can, in general terms, be put to one side in this discussion.)

18 A s 465 search warrant was issued by a local magistrate, Mr A J Maughan, at 4.43pm on 16 September 2004. It identified the place of the proposed search as 1/56 Birchwood Boulevard, Hoppers Crossing. The "reasons for search - suspected offence" were stated as "theft of motor car". The name and description of the “article, thing or material” was in these terms:

“Stolen motor vehicle, registered number PKT 337, a black coloured Honda Prelude and/or parts, documents pertaining to the theft or sale of stolen motor vehicles and all computer storage media including floppy diskettes, tapes, hard discs, compact discs, or other devices containing data related to the theft and sale of stolen motor vehicles. All computer hardware, software, leads and cables necessary for proper operations of the computer systems.”

19 The warrant authorised Detective Acting Inspector O'Halloran of the Organised Crime Squad, or all members of the Police Force, to break, enter and search the premises for “any article, thing or material” of any kind named or described in the warrant, and to bring the things seized before the Court so that the matter might be dealt with according to law. It also authorised the arrest of any person apparently having possession, custody or control of the article, thing or material.

20 The police arrived at Aimen's premises at about 7.45am on 17 September 2004. Detective Senior Constable Gregory Teesdale was at the time performing duties with the Organised Motor Vehicle Theft Squad. It was he who spoke to Aimen at the front door of the premises and gave him a copy of the search warrant. Aimen, after some discussion, admitted that he had a gun in his bedroom under the mattress. Officer Teesdale and other police went with Aimen to his bedroom and located a .45 calibre automatic handgun and a clip loaded with rounds underneath the mattress. This was seized. A number of other items were also seized in the bedroom. They included a laptop computer and four compact discs. These were all found on the bed. There were several other items as well, but there is no need for me to record these.

21 Detective Senior Constable John Clark was given the task during the search of taking photographs and keeping an exhibit log. He, Teesdale and the others, had attended a briefing session prior to the execution of the search warrant. Detective Senior Sergeant Murray described the briefing that was given to the police officers involved in the search.

22 Obviously enough, they had been briefed on the aspect of the search that related to the car theft and re-birthing. However, they were given further information in relation to the Pendennis Task Force and its objectives. It is a reasonable inference from the evidence of Detective Senior Sergeant Murray that the searching officers were told that the car re-birthing was being carried out to obtain funds to support terrorist projects. Their primary task, however, was to look for evidence that best fitted the bill to assist them in furtherance of their precise investigation. That is to say, evidence that was directed at offences of theft arising from the car re-birthing activities.

23 Secondly, however, they were, as I have said, briefed about the bigger issue, that is the terrorism investigation. They were told that it would be expected that if, in the course of their duties, they came across items that might fall outside the scope of their warrant but which would be evidence to support the commission of other crimes, they were to use their powers to seize those items as well.

24 Detective Senior Sergeant Murray put his expectations in these terms:

“Q. That may assist to prove terrorist offences in addition to any offences under the Victorian Crimes Act legislation?
A. That's right, and I would expect any detective worth his salt to do that in any typical search by - if he sees evidence that may afford evidence to another crime, to seize such an item.”

25 At the search scene, Detective Senior Constable Clark prepared the exhibits log. It showed that the search had commenced at 7.50am and that it was completed by 11am. The items found in the bedroom were logged separately. Item 7 in the log were the four compact discs found in the main bedroom. The log is signed by Aimen indicating that he had been given a copy of the Property Seizure Record and that he had agreed it was a true record of property seized from his premises. The log recorded, in all, some fourteen items. Photographs taken included the weapon which was found under the mattress, the computer which was found on the bed, and the four discs which were found also on the bed near the computer. There were also pieces of car bodies found around the premises which, plainly enough, had a direct link to the alleged criminal activity.

26 As required by the Victorian legislation, the police immediately took the materials that had been seized and appeared with them before Mr Maughan, the local magistrate. The record shows that police came before the Magistrate at 11.48am on 17 September 2004. Aimen had been arrested and this is noted on the return for the search warrant. It is my understanding that he was charged with offences relating to the car theft activity and bailed to appear before a Local Court on a later day. The Magistrate noted the exhibits as "per the attached log". He then gave certain directions regarding the items which had been seized. He directed that items numbered 1 to 14 in the log be retained “in the possession of police pending production at Court, if required”. This direction plainly extended to the four compact discs which were item 7 on the log. Secondly, he directed that "items numbered 1 to 14 may be conveyed to the Victoria Police Forensic Services Centre for analysis". The direction continues:

“I understand that these items may be altered from their original state as a result of analysis/testing.”

27 In the case of the computer (item 2) the Magistrate directed that this could be conveyed to the Computer Crime Squad for analysis “or by the relevant authority”. Once again, he stated his understanding that the computer might be altered from its original state as a result of analysis/testing.

28 Detective Senior Sergeant Murray said that he was aware of the physical nature of the items that had been seized on the day of seizure. He had not been involved in the actual search and seizure itself although, plainly enough, he had been involved in the pre-search briefing given to police. There were a number of warrants being executed on the same day, and he was briefed as to what items had been located or found as a result of each search. He said the most important task he had immediately, after the conclusion of the searches, was to look for the smoking gun. He had to determine whether anything that had been found revealed an intended target for an immediate terrorist attack. The items, he said, were "vetted and we made an assessment of the materials". He said they were satisfied, no doubt with some relief, that there was no smoking gun.

29 Although the search had located "items of interest" the police were satisfied that nothing that had been found demonstrated that there was an immediate intended target or an immediate plan to carry out a terrorist attack.

30 Detective Senior Sergeant Murray went on to describe the steps he had taken in relation to the computer and the four CDs located at Aimen's premises. The exhibits which had been placed before Magistrate Maughan were, after his directions had been given, taken by Detective Senior Constable Clark to the Organised Crime Squad office. At those premises the exhibits were taken to a locked room for checking by Detective Acting Sergeant Teesdale. This officer took possession of the seized property and, after checking, lodged it with the Exhibit Management Unit. As I understand it, this unit is located at the St Kilda Road Police Complex, at 412 St Kilda Road, Melbourne.

31 Detective Senior Sergeant Murray said that, although the direction which had been obtained from the Magistrate relating to the computer contemplated that the analysis of its contents might be conducted by an authority other than the Victorian police, the direction for the four CDs had not been altered to give this flexibility. It had directed that the CDs might be analysed at the Victoria Forensic Science Centre. I gathered the impression from the police evidence that it was more in the nature of an oversight that the direction for the CDs had been expressed differently than had the direction relating to the computer. Nonetheless, the position, in relation to both the computer and the CDs appeared to Detective Senior Sergeant Murray to be that there was likely to be a backlog in getting the Victorian Forensic Group to examine and/or make copies of the material on any of the items seized. Officer Murray said that this was the reason he had the wording changed in relation to the computer. Time had been of the utmost importance, and so he was concerned to outsource the interrogation to other agencies if that would provide a more prompt answer to the immediate urgent question facing the operation.

32 Detective Senior Sergeant Murray was sufficiently concerned to attempt to have the St Kilda Police Complex reopened over the weekend so that the outsourcing of the analysis could take place urgently. He was unsuccessful in this endeavour. On Monday morning, however, he was able to arrange for access to the items and to have them copied. This task was undertaken by one Peter Constantinou. He was a senior computer examiner with the Australian Federal Police. He was centrally located at the Forensic Services office of the Federal Police at LaTrobe Street, Melbourne. As Detective Senior Sergeant Murray made clear, it was no part of Mr Constantinou's task to analyse anything either on the computer or on the CDs. His task was limited to making relevant copies and providing an urgent report which would describe the material located, whether it be the hard disc of the computer or the material on the compact discs.

33 On the Monday morning, Mr Constantinou went to the St Kilda Road Police Complex with Federal Agent Clinton Towers. On the 19th floor he had been introduced to a Victorian police officer Detective Senior Constable Warren Chapman. The latter gave instructions to Mr Constantinou enabling him to conduct various forensic procedures. There is no need for me to itemise every procedure carried out by Mr Constantinou.

34 The one matter relevant to the present argument is that he created exact image copies of the four compact discs. In the course of doing that, he utilised a well known forensic procedure known as “Twin Tagging”. This is done to preserve the continuity and legitimacy of the copying procedure. A Twin Tag was fitted to one of the compact discs which bore the number 131277. This was the relevant disc containing material involved in the present argument. At the conclusion of the forensic procedures, the original compact disc remained in the possession of the Victorian police. It never left their possession. Mr Constantinou, with Federal Agent Towers, took with him the copy of the disc 131277. This was taken to the AFP office in LaTrobe Street, Melbourne. Mr Constantinou transferred the images on to the secure AFP network which was itself located within a secure area, and only accessible to authorised AFP personnel.

35 On 21 September 2004, he accessed the secure AFP network and transferred a complete copy of the images to a series of archived CDs. This, he described, as being a standard computer forensic procedure. He further described in detail the steps he had taken to ensure continuity of the exhibits he had created. A considerable time later, on 10 February 2006, Mr Constantinou again accessed the secure AFP network where the imaged files were stored. He extracted data from the network that related to, for example, the specific Twin Tag reference allocated to the relevant CD he had examined on 21 September 2004. He then created a copy of that data which he transferred to a series of CD-ROMs. He provided the reference to the relevant CD-ROM. He lodged the archived CDs marked with the relevant AFP reference number with Giuseppe Nicastri, who was then working in the Information Coordination Section of the Melbourne office of the AFP. In the final part of his report, Mr Constantinou identified the material found on the CD which I have set out at the commencement of this decision.

36 I now return to the sequence of events involving Detective Senior Sergeant Murray. Once the copying had been done, he said the police were involved in a "fairly rapid vetting process". This was the important task of ascertaining whether the material demonstrated that an imminent terrorist attack was likely. The material examined satisfied the police that that was not the situation. Consequently, the next part of the police Task Force investigation was the establishment of more long-term electronic surveillance and other types of surveillance. I took Mr Murray to say that further consideration was not given to the contents of the CD, other than it being noted as potentially relevant to more long-term terrorist charges. The sequence of the officer's evidence is found at transcript 2156 where it appears as follows:

“Q. That was designed to look for the smoking gun?
A. Just for that - entirely. Keeping in mind, I should emphasise that, you know, this exercise did take place relatively quickly; but, moreover, we were - once that exercise was completed, we were certainly refocussing and channelling our energies on other more important areas of the investigation, and that is electronic surveillance, et cetera, et cetera.
Q. So you endeavoured to have the vetting process take place at the earliest reasonable opportunity after the copying had taken place?

A. Yes.

Q. And what did you learn as a result of the vetting process?

A. Well, the vetting process revealed that - you know, I keep using the phrase, but it adequately describes that there was no smoking gun, and we were happy to, I suppose, move the investigation on to the next phase and progress it from there. That is not to say there was nothing of relevance. There was certainly material of relevance, but nothing which was going to bring us closer to making any arrest.

Q. For instance, did you learn at that stage that the CD we are talking about contained The Terrorist Handbook, White Resistance Manual, Car Bomb Recognition Guide and that sort of material?

A. I may or may not. I have no specific recollection of that. Suffice to say that if I had learned I, again, would have been interested. It would have been nice to know, but, again, we were fairly focussed at that time on an imminent act, not the possession of a thing.

Q. If I can perhaps ask you this question. As to your state of mind at that time vis-à-vis the CDs, particularly the CD I just referred to, did you have a state of mind one way or the other as to whether the CD may have some evidentiary value to your investigation continuing or to some charges arising from your investigation?
A. By the very nature of the materials that you have described, the Vortex Cookbook, the White Supremacist Manual, et cetera, even though the investigation was in its infancy that clearly has some relevance and is clearly - may have some potential evidentiary value at some later stage. So, yes, that was identified as something which potentially we may use at a later stage.

37 The same topic was raised in Mr Lange's cross-examination of Detective Senior Sergeant Murray:

”Q. My learned friend asked you about the vetting process that took place. To be fair you have said your recollection isn't 100% on this point, but let me ask you the following: You had come to an arrangement with the AFP that they would undertake the task necessary to deal with the electronic material?

A. Correct.

Q. And it was Mr Constantinou who, on the following Monday, made images of the CDs?

A. Correct.

Q. He then, on 21 September, lodged various copies with various people, is that fair to say?

A. I wouldn't dispute that, no.

Q. He himself had a look at the images that he made to provide some information to you as to what the contents were, is that right?

A. He may have, yes.

Q. If you don't remember, please just say so, but was the information that he gave you on 20 September or thereabouts that of the four CDs, one was blank, one contained a Power Point presentation, one contained a number of zip files and one contained some further data?

A. He may have, yes.

Q. You've told us that you are not entirely sure who you dealt with during this period, but other than Mr Madden and Mr Constantinou, was there anyone else from the Australian Federal Police Forensic Service that you dealt with?

A. Again that's some enquiries I could undertake. I have no specific recollection of other individuals, but most certainly there probably were others assisting or supporting, yes.

Q. As you are here today you can't recall?

A. I can't recall a specific name over and above Mr Constantinou, no.

Q. And Mr Madden later on--

A. That's correct, yes.

Q. --during the preparation. On 8 February Mr Constantinou again examined the CDs. Was that at your direction?

A. The 8 February 05?

Q. 2006, forgive me.

A. 2006? Whether it was via my direction, it certainly would have come through me at some stage, so I would have been a party to the process, yes.

Q. And it was at that stage that he informed you about the directory structure and the precise contents of the CD?

A. Just to understand what Mr Constantinou's role is, yes he would report on directory structures et cetera et cetera. We would have others, though, doing the vetting processes, that is, people actually looking for items of evidentiary worth. That's not his role.

Q. He is a forensic person?

A. Correct.

Q. He makes copies?

A. Correct.

Q. He translates the electronic information into some form of representation so that other officers can determine the evidential value?

A. Correct.

Q. Without the information that he provides, obviously other Australian Federal Police Officers or Victorian Police Officers cannot determine the evidential value of items such as CDs?

A. No, that's not the case.

Q. That's not the case?

A. No.

Q. Can you tell us who else had access to those CDs?

A. Well, if I just clarify myself there, it's not the case because what Mr Constantinou is doing on a forensic level is getting the CD data to an acceptable evidentiary standard, that is, acceptable in a Court of law. The process of identifying, for instance, a document could be quite easily done by any member of the task force, that is, they see a Vortex Cook book sitting there, the forensic mechanism was left to Mr Constantinou to, I suppose, transpose or elicit that in some forensic capacity so it makes sense in a Court of law. So just so if I can - so others could have and would have undertaken that exercise, not Mr Constantinou.

Q. But again to be fair to you, you don't know, sitting here today, whether any other officer looked at the CD and made that determination prior to Mr Constantinou's information of 8 February 2006?
A. Well, I can categorically say that prior to that we had been involved in the vetting process. I can't at this point tell you who it was, but what I can categorically say is that we certainly had a handle on the types of material that were located on those CDs”.

38 As it happened, Aimen appeared before the Werribee Magistrates Court on 27 January 2005. On that day, he pleaded guilty to offences arising from the activities detected by the Stolen Motor Vehicle Squad. I am not aware of the penalties imposed upon him, but it appears there was no appeal from the sentence imposed.

39 Detective Senior Sergeant Murray gave evidence that his operation wanted the group members to believe that this had been simply a car re-birthing investigation. In other words, he did not wish to “tip his hand” to the Melbourne men in case they became aware that surveillance was being conducted as part of a terrorist investigation. For that reason, he determined that the original CD should be returned to Aimen. In the light of Aimen's plea to the stolen car offences, the CD was not of any use, and certainly of no further use, in relation to those charges. The CD was in fact returned to Aimen on 6 June 2005. (Mr Murray was “chided” by Mr Lange over the delay between January and June 2005 but he said that, in his experience, a period of six months post conviction was not an unduly lengthy time for the return of property seized as evidence.)

40 An additional complication then occurred. It is not quite clear why this occurred. But it seems that ASIO had taken (or, at least, may have taken) a different view than had the Victorian police. On 22 June 2005, the CD (and other items) were seized by ASIO under a new search warrant issued on its behalf. Detective Senior Sergeant Murray said he became aware of this on the day of seizure. Having become aware of it, the Operation Pendennis Task Force later executed its own search warrant on ASIO to recover the item. This occurred, it appears, in January 2006. By that time, indeed, by June 2005, the investigation into the Melbourne group had gathered considerable momentum. Prior to November 2005, a fairly clear view had by then been held as to the nature of the offences to be alleged against the Melbourne men. The men were arrested and charged in that month. With the prospect of a trial in mind, the importance of the materials on the CD became more significant and they were then more closely scrutinised and examined in terms of their evidentiary value, along with other circumstantial material gathered in the 14-month period between September 2004 and November 2005.

41 A Victorian police officer attached to the joint Task Force, one Paul Madden, was given the task of looking carefully at the material on the CD (and other material) with a view to it becoming part of a brief of evidence against those charged with terrorism offences in Melbourne as a result of the Melbourne investigation. Aimen himself was one of those charged in November 2005 with possessing the relevant CD, knowing that it was connected with a terrorist act. There was a second charge relating to another CD which is not relevant to the present discussion. As I have said earlier, Aimen was eventually found guilty in relation to both charges.

42 Officer Madden gave evidence which, broadly speaking, supported the evidence given by Detective Senior Sergeant Murray. Mr Madden had been seconded to the joint Task Force in about August 2004. He confirmed that the imaged files contained on the relevant CD were, with other material, loaded into a system known as GEMS. This is an acronym for "General Evidence Management System". It is a software program where material in electronic form, once loaded, cannot be altered or changed and, as such, becomes a management system for recording evidence that has been loaded into it. He believed that the CD was loaded into GEMS in late 2004, shortly after it had been imaged by Mr Constantinou.

43 Mr Madden was informed of the sequence of events culminating in the “reseizure” of the seized CD pursuant to the ASIO warrant on 22 June 2005. He was also aware that the CD had been subsequently recovered by the Task Force from ASIO in early 2006. Mr Madden provided a statement on 20 February 2006 which confirmed his examination of the material within GEMS, being the images obtained by Mr Constantinou in September 2004.

44 The purpose of his statement was to identify, for trial purposes, more precisely the material contained on the CD. Mr Madden also confirmed that the evidence in the 2008 trial against Aimen had included the material seized during the 17 September 2004 search. It included the original CD. He also confirmed that the contents of the CD had been loaded into GEMS specifically for the purpose of the Task Force investigations being conducted by Operation Pendennis. Mr Madden, so it seems, had been endeavouring to come to grips with GEMS from about mid-2005. The program was not one that he had been familiar with, and there was a substantial volume of material that required a considerable time for the purposes of examination and the preparation of statements. He confirmed, however, that other investigators had examined the material prior to his involvement. He said he knew there were people from Canberra who were involved in the investigation for a short time who did examine the contents of the material in GEMS. They were not specifically involved, however, with the day-to-day aspects of the investigation.

The arguments advanced on behalf of Mr Cheikho

45 Mr Lange relied upon five specific improprieties to support his argument that the material should not be allowed at trial. These were:

(a) The seizure of the CDs was made without any investigation as to their contents at the time they were taken from the premises. The consequence of this was that the seizing officers had not been able to form a belief that they were related to the terrorism investigation or, for that matter, the car theft investigation.

(b) The passing of the material to another agency, namely the Australian Federal Police, was unauthorised and contrary to the direction given by Magistrate Maughan on 17 September 2004.

(c) the passing of the material to the Australian Federal Police involved a breach of the direction that the CDs should be given to the Victorian Computer Forensic Services Group.

(d) The copying or imaging of the CD was unauthorised, or at least not specifically permitted by the Magistrate’s direction.

(e) It had been improper for the police to retain the CD at all, and its retention was certainly improper after the purpose relating to the motor vehicle investigation had lapsed in January 2005. In the alternative, it was improper for the police to retain the CD itself beyond a reasonable time, and improper to retain the copies or images beyond a reasonable time.

46 Mr Lange argued that all or any of these improprieties ought lead the Court to conclude that, in the exercise of its discretion, the proper application of s138 of the Evidence Act (NSW) should result in the evidence being excluded.

Principles to be applied

Section 138 of the Evidence Act 1995

47 There is no dispute between the parties as to the primary principles to be applied. This is an application to exclude evidence at trial, where the principal contention is that the items seized were improperly or illegally obtained or retained. The issue is one to be ultimately determined having regard to the provisions of s138 of the Evidence Act 1995 (NSW).

48 The dictates of s138, the ambit and thrust of its discretions, and the authorities bearing on its proper construction and application, are set out in a number of earlier pre-trial decisions I have given (see, for example, R v Elomar [No 6], 16 December 2008, at (28)-(35); R v Baladjam [No 48], 30 September 2008, at (247)-(254)).

49 As I am virtually mid-trial at the present time, and as this decision is required promptly, I will simply ask that those earlier decisions be regarded as incorporated in, and part of, this judgment.

Section 465 of the Crimes Act 1958 (VIC)

50 The threshold and immediate questions, however, require an examination of the terms of s 465 Crimes Act 1958 (Vic). Section 465 is relevantly in the following terms: -

“465(1) Any magistrate who is satisfied by the evidence on oath or affidavit of any member of the police force of or above the rank of senior sergeant that there is reasonable ground for believing that there is, or will be within the next 72 hours, in any building, receptacle or place -
(a) any thing upon or in respect of which any indictable offence has been, or is suspected to have been, committed or is being, or is likely to be, committed within the next 72 hours; or
(b) any thing which there is reasonable ground to believe will afford evidence as to the commission of any such offence; or
(c) any thing which there is reasonable ground to believe is intended to be used for the purpose of committing any indictable offence against the person, for which the offender may be arrested without warrant -
may at any time issue a warrant authorising some member of the police force or other person named therein to search such building, receptacle or place for any such thing and to seize and carry it before the Magistrate's Court to be dealt with according to law.”

51 The section, its history, its derivation and characteristics were exhaustively examined by the Full Court of the Supreme Court of Victoria in Allitt v Sullivan (1988) VR 621, especially per Brooking J at pp 634-690. Relevantly for the present argument, the two predominant features of its requirements, so far as the execution of a search warrant is concerned, were said to be: -

(a) the officer or officers authorised to search must act reasonably in all the circumstances of the case; and may seize an item only where the officer holds a belief based on reasonable grounds that the item will afford evidence as to the commission of the offence named in the warrant.

(b) the primary obligation on the seizing officer is to bring any item seized before the issuing Magistrate or other Magistrate to be dealt with according to law.

52 This second feature is discussed by Brooking J at p 638 in the following terms: -

“A warrant issued under s465 authorises in terms search, seizure and carrying away. Once a thing has been found, identified and seized, then neither the warrant nor the section pursuant to which it was issued says anything in terms by way of authorising the executing officer to retain or use the thing seized. His power and his duty is to carry it before a justice to be dealt with according to law. If the section and the prescribed form of warrant did no more than authorise search for and seizure of the things described in the warrant, then it might be argued with some force that the seizing officer was entitled to retain what he had seized, either by virtue of the warrant...or by virtue of the principles that have been developed by the courts concerning the circumstances in which the police may retain seized articles until the conclusion of criminal proceedings. But I do not see how it can be said that the warrant itself, or s465, authorises retention or use of what has been seized. For such retention or use is inconsistent with the duty imposed by the warrant on the executing officer to carry what has been seized before a justice to be, by him, dealt with according to law...Moreover, having regard to the terms of the warrant and the section, while the principles developed by the courts concerning the circumstances in which the police may retain seized articles pending the conclusion of criminal proceedings will bear, and bear heavily, on what 'dealing' by the justice will be 'according to law', the express provision of the warrant and the statute shows that the rights given to the police by the common law are, so to speak, to be enforced, not directly, but by means of an order for disposition giving effect to them, which is made by the justice before whom the seized property is brought.”

53 Again at p 639 Brooking J said:

“The power and the duty of the police officer executing the warrant is to take what he has seized before a justice to be dealt with by him according to law. Once he has seized the goods, that is his only power in relation to them. He is not entitled, for example, to retain what he has seized for the purpose of facilitating his investigations instead of taking the seized property before a justice...If the things the subject of the warrant are documents, the warrant gives the officer no power to read them except for the purpose of identifying what he is to seize. Once he has identified and seized the documents, his task is to take them before a justice. How is the justice to deal according to law with what has been seized:...where criminal proceedings have been commenced or are in contemplation the justice should give effect to the common law right of the police to retain possession of property required for the prosecution, the right of the police being, of course, not limited to cases of theft...The cases show that it would be proper to allow the police to retain possession of things seized, not only for the purpose of using them as evidence but also for the purpose of using them in the course of investigation.”

General principles affecting search warrants

54 There is no real dispute between the parties as to the principles applicable to show the correct procedures to be adopted generally upon the execution of a search warrant. Principally these are to be found within the statute creating the right to search premises, but they also derive, in part, from the common law. The principles of general import most relevant to the present argument are the following:-

(a) the belief based on reasonable grounds that the item seized will afford evidence of the commission of the relevant offence extends beyond holding a mere suspicion ( George v Rockett (1990) 170 CLR 104 at 115; Joseph Puglisi & Anor v Australian Fishermen's Management Authority (1997) FCA 846 per Hill J).

(b) the requirements of the statute governing the execution of the power to search under a warrant are to be construed strictly and the execution of the warrant itself must be reasonably carried out ( George v Rockett at 1110; Parker v Churchill (1985) 63 ALR 326 at 337 per Burchett J; Reynolds v Commissioner of Police (1985) 2 WLR 93; Bartlett v Weir (1994) 72 A Crim R 511 at 518 per Beazley J).

(c) subject to any statutory requirements, the police may retain items seized for the purpose of a pending investigation and/or criminal proceeding until after the conclusion of the proceedings (see authorities under the following subparagraph).

(d) the common law extends the reach of a warrant to include a power of seizure of evidence, found during the search authorised by the warrant, relating to serious offences not mentioned in it ( Reynolds v Commissioner of Police ; Ghani v Jones (1970) 1 QB 693 at 706; Chic Fashions (West Wales) Pty Limited v Jones (1968) 2 QB 299 at 313 and 316; Marinko v Rames , Supreme Court of New South Wales, Hope J, unreported, 13 August 1971; Dixon v Stephens , Supreme Court of New South Wales, Street J, unreported, 2 September 1971; GH Photographs v McGarrigle (1974) 2 NSWLR 635 at 644-645; Esso Australia Limited v Curran (1989) 39 A Crim R 157 at 169; Golla v Nugent (1988) HCA 59; (1988) 166 CLR 18 at 44-45; Tye v Commissioner of Police (1995) 84 A Crim R 147 per Studdert J; Ozzie Discount Software (Aust) Pty Limited v Muling (1996) 86 A Crim R 397). In Ghani v Jones - a case where the search of premises had taken place without a warrant - Lord Denning set out in his judgment five propositions at (708)-(709), which are frequently repeated. These were:

“First: The police officers must have reasonable grounds for believing that a serious offence has been committed - so serious that it is of the first importance that the offender should be caught and brought to justice.
Second: The police officers must have reasonable grounds for believing that the article in question is either the fruit of the crime (as in the case of stolen goods) or is the instrument by which the crime was committed (as in the case of the axe used by the murderer) or is material evidence to prove the commission of the crime (as in the case of the car used by a bank raider, or the saucer used by a train robber).
Third: The police officers must have reasonable grounds to believe that the person in possession of it has himself committed the crime, or is implicated in it, or is an accessory to it, or at any rate his refusal must be quite unreasonable.
Fourth: The police must not keep the article, nor prevent its removal, for any longer than is reasonably necessary to complete their investigations or to preserve it for evidence. If a copy will suffice, it should be made and the original returned. As soon as the case is over, or it is decided not to go on with it, the article should be returned.
Finally: The lawfulness of the conduct of the police must be judged at the time, and not by what happens afterwards.”

55 (These propositions were, for example, applied in Tye v Commissioner of Police, and by Bell J in Greer v Commissioner of Police (2002) 128 A Crim R 586.)

(e) legislation in similar terms to s465 of the Victorian Crimes Act does not enable or entitle the seizing officer to remove things from the warrant premises with a view to deciding at a later time whether or not to seize them. This limitation flows from the conditions by which the relevant statute governs the execution of a warrant ( Hart v Commissioner of Australian Federal Police & Ors (2002) 124 FCR 384 at 71-73. In that case, the Court (French, Sackville and RD Nicholson JJ) noted that, while it was possible to remove a file, book, bundle or document, which was believed on reasonable grounds to contain material of evidentiary value, provided that any necessary sorting process was carried out with reasonable expedition and that those documents not of evidential value were returned reasonably promptly, it was not open to an executing officer to remove materials for later sorting without consideration of whether or not they might contain evidential material. The Court cited as authority Reynolds v Metropolitan Police Commissioner , Allitt v Sullivan and Bartlett v Weir .

56 In the last mentioned case, Beazley J (at 522) had held unlawful the seizure and retention of computer disks, purportedly pursuant to a warrant under s10 of the Crimes Act 1914 (Cth):-

“...without knowing whether they fell within the terms of the warrant, intending to examine them later, without having held, at the time of seizure, the requisite reasonable belief that the goods seized might afford evidence of the commission of a crime.”

Resolution of the issues

57 The first critical matter is to determine whether Khaled Cheikho has demonstrated that the seizing police officer failed to hold a belief based on reasonable grounds that the CDs found in the bedroom, and in particular the relevant CD, contained data relating to the theft and sale of stolen motor vehicles. In one sense, this is the primary matter to be determined. Mr Lange did not dispute that he carried the onus of demonstrating that an illegality or impropriety had occurred. Counsel's argument fell essentially into two parts. The first was that the evidence before this Court fell short of establishing such a belief based on reasonable grounds. Secondly, the fact that the CD was not "played" at the house - the laptop computer had not been taken to the premises - meant that no such belief could have been formed or held at the time of seizure.

58 As to the first matter, I am not satisfied that Khaled Cheikho has demonstrated the absence of such a belief on the part of Detective Senior Constable Teesdale. This is so for a number of reasons. First, the warrant itself had been issued by Mr Maughan upon his being satisfied by either evidence on oath or affidavit that at the premises there were likely to be "diskettes, hard disks, compact disks, et cetera" containing data relating to the theft and sale of stolen motor vehicles. The Magistrate's view of the material placed before him is, of course, by no means conclusive, or even indicative, of the belief of the seizing officers. Nor is the fact that the items mentioned in the subpoena were those that may have seemed, at first blush, to fall literally within the terms of the warrant. But each of those matters is germane to the presence of the necessary belief held by the seizing officer, at least as a matter of inferential background.

59 Secondly, the Court is entitled to infer that members of the specialist squad dealing with car theft, including Officer Teesdale, would have been aware of the practice of persons involved in car re-birthing offences to store material relating to their activities on electronic media such as a compact disc.

60 Thirdly, the inference as to Officer Teesdale's belief is all the more strengthened by the overall circumstances of the finding of the four CDs scattered on Aimen's bed near a computer, and the finding of a loaded pistol secreted under the bed itself. There were also other items found and seized both in the bedroom and elsewhere in or about the premises that would have further strengthened the relevant inference in relation to the CDs themselves. This is plain from the items listed on the property seizure record.

61 Fourthly, in conformity with the legislation, the CD and the other items seized were immediately taken before the Magistrate so that the latter might determine what stipulation should be made in respect of each of those items. The Magistrate, for example, might have ordered the immediate return of the items, or some of them, to their owner. He would have done so if they were unrelated to the offence in the warrant. The fact, however, that the issuing Magistrate, confronted with the list of the seized items, and knowing of the arrest of the person against whom the warrant had been issued, ordered, at the request of the seizing officers, that the items be retained by the Victorian Police, pending production in the proceedings against Aimen, further reinforces, even if indirectly, the continued existence of the appropriate inference as to the seizing officers' belief. Of course, the Magistrate's view that the CDs should be retained by the police pending production at court, if required, is not of itself direct proof of the belief held by Officer Teesdale, but it is again an important piece of background material in relation to the drawing of the appropriate inference.

62 Mr Maidment SC argued that the overall circumstances of the police briefing as to the connection between car re-birthing and terrorist intentions, together with the circumstances of the search, enabled a further inference to arise, namely that Officer Teesdale, and Mr Wheatfill, who was present in connection with the second warrant, would have been likely to have shared information as to the items seized by each of them. Sharing of information in this way would have been likely to give rise to the suggestion, not dispelled by any evidence adduced on behalf of Khaled Cheikho, that the CDs were seized in the further belief that they were likely to afford evidence of the commission of another offence, namely an offence against the Commonwealth terrorism legislation.

63 I am not altogether persuaded by this submission. But, at the very least, I do accept that the police at the search, including Mr Teesdale, would have been, or likely to have been, well aware of the connection between the re-birthing activities and Aimen's terrorist proclivities. The possibility, I put it no higher, that the police belief in relation to the CDs rested, at least in part, on Aimen's interest in terrorist pursuits plainly exists as a matter of inference. This inference, however, is perhaps not as firmly grounded as the principal inference to which I have made reference.

64 Whether one looks to the first or the second inference, or perhaps a combination of the two, the fact is that Khaled Cheikho has not satisfied me on the whole of the evidence I have considered that the seizing officer lacked a belief on reasonable grounds that the CD would afford evidence of the commission of an offence. The beliefs held by the police officer were plainly capable of relating the CD to the commission of the offence mentioned in the warrant. Perhaps less obviously, but nevertheless possibly so, those beliefs were capable of extending to a perception that the material would be relevant to the commission of an offence against the terrorist legislation.

65 I should mention here something that is not, strictly speaking, relevant to the resolution of this first question. It is, however, not without practical significance to the overall discussion to note, as an obvious matter, that the content of the relevant CD was in fact both relevant and probative to the offence to which Aimen eventually pleaded guilty at the Werribee Local Court. If he had not pleaded guilty to this offence, and had the burden of proof fallen upon the Crown at his trial, the CD would have been plainly a piece of evidence relevant to the motives underlying the theft of motor vehicles as revealed in the contents of the listening device intercepted at Ezzit's garage on 10 September 2004. The contents of the CD would not have proved the offence but would have been plainly relevant to its proof (Parker v Churchill per Burchett J at 337). The contents of the CD were also relevant and probative in relation to the charges for terrorism offences in respect of which Aimen was convicted in the Supreme Court of Victoria in 2008.

66 Mr Lange's second point, namely that the police did not have the capacity at Aimen's house to examine the contents of the CD, is not without attraction at first glance. But I do not accept that it is sufficient, in the circumstances of this particular matter, to dispel the existence of the inferences I have examined in relation to counsel's first argument. Once again, several points may be made. First, it must be acknowledged that the legislation represented by the terms of s465 of the Victorian Crimes Act is rather outmoded in its concepts. It takes no account, for example, of the revolution represented by the modern computer and its technology. More recent legislation, for example the provisions in the present Commonwealth Crimes Act, allow for the testing and analysis of computer material at the property to be searched. It allows, in addition, the removal of computer and media devices for testing away from the searched property and for later seizure after testing (Hart v Commissioner of Australian Federal Police at (80) to (103)).

67 By contrast, the Victorian legislation is based on the terms of a statute enacted nearly 100 years ago (s 8 Crimes Act 1910). It makes no allowances for the type of procedures I have mentioned in the more modern legislation. It does not follow, however, as an axiomatic certainty, that a belief based on reasonable grounds could not be held in relation to the contents of a particular CD or even a number of CDs located at a particular set of premises. Such a belief might, in particular circumstances, be held, even though the precise contents of the CD were not known or, in technical terms, not capable of being known precisely at the moment of seizure. The situation, inevitably, would be affected by, and perhaps determined by, the information held by police, by operational knowledge, briefing details and the circumstances encountered at the place of search. The present situation is very much one that is influenced by considerations of that kind.

68 Mr Lange relied on two authorities in relation to this argument. The first is Bartlett v Weir, a case counsel suggested was “on all fours” with the present matter. This decision, however, is, in my view, clearly distinguishable from the present.

69 Bartlett v Weir was a case in which the applicant sought a declaration that the execution by the second respondents of certain search warrants had been unlawful. The search warrants related to two separate sets of premises in Tasmania. The validity of the warrants had themselves been attacked but this had been resolved favourably to the issuing authorities in an earlier decision.

70 The proceedings before Beazley J sought not only a declaration, but a claim for damages for wrongful retention of property. There is no need for me to set out all of the factual matters in detail. The following points of distinction should, however, be noted:

71 First, the proceedings were, as I have said, for a declaration and other relief. It was not a case in which the Court was required to exercise a discretion as to exclude evidence at a criminal trial.

72 Secondly, the gravamen of the decision of Beazley J was that the conduct of the search had been very heavy-handed and quite unreasonable. Something like 400 floppy disks had been seized, as well as a number of computers. There was no issue with the proposition that much of the material seized was of a private nature, related to other persons' business affairs, and could not have reasonably fallen within the search warrant. There were other aspects of the search procedure which were plainly unreasonable. There is no need for me to detail them here.

73 Thirdly, and importantly, the seizing officer had conceded that the relevant belief was not held at the premises. Indeed, a decision had been made, prior to the execution of the warrant, to remove the equipment to be seized so that it could be examined at a later time and away from the premises at the leisure of the authorities. In effect, everything that might possibly answer the literal description in the warrant was seized, with the intention being that a decision should be made about the nature of the material and its retention at a later time and place.

74 Fourthly, the material was retained for seven months, even though no proceedings were pending or apparently even contemplated.

75 Finally, there was no evidence before Beazley J that any investigation into the matter was continuing, even at the time, nearly two years later, when the proceedings in the Federal Court were determined.

76 Two points can be made. First, it will be seen that the case before Beazley J was very significantly different from the situation I have examined in the present matter. Secondly, her Honour's decision was not, as I read it, an authority for the proposition that in no circumstances could a belief be held on reasonable grounds that a computer disk, unexamined as to its precise contents at seizure, would afford evidence of the commission of a crime.

77 In the present matter there were only four CDs seized. There is not the slightest suggestion in the evidence that it was a "willy-nilly seizure". Of course, the police officer may have been wrong as to his belief. But, in that case, that would have perhaps predicated a need for the CD to be returned. It would not have meant that the seizure was itself illegal or improper.

78 Nor is this a "bundled-up" case (the exception mentioned in Reynolds). There is no suggestion that the police simply bundled up the CDs with a view to sorting out later which part was probative of the commission of an offence and which part was not. The positive inference I draw from the whole of the circumstances is that the belief was held that all four CDs contained material relevant to, or probative of, the commission of an offence relating to the theft and re-birthing of vehicles. At the very least, it has not been demonstrated by the applicant in the present matter that such a belief was not held.

79 The second authority relied on by Mr Lange was Trimboli v Onley [No 3] (1981) 56 FLR 321. This was a decision by Holland J. It related to a complex series of cases where the plaintiff had attempted to thwart a search of his premises mid-stream. Once again, the immediate decision concerned a claim for wrongful detention of goods and damages. The plaintiff was by no means successful in his claim, at least in the decision under discussion, and the Court made a detailed set of orders preserving, in effect, the rights of the parties in accordance with the principles stated in the decision. There is no need for me to set out the principles as they are, in the main, those I have already identified. Mr Lange, however, placed reliance on one particular part of Holland J’s decision. At pp336-337, Holland J has stated: -

“In the present case s. 10 of the Crimes Act permits the grant of a search warrant authorizing the named officer to enter a house "and to seize any such thing which he may find in the house". The wording of the English section suggests that seizure must precede removal from the premises. Section 10 does not refer to removal and might be capable of being construed as authorizing seizure of a thing found in the premises to take place at some point of time after removal from the premises such as after removal and possession for a period long enough for an examination. There were items found in the present case that are in point. I refer to the tape recordings, for example. Their contents could not be known unless they were played back on suitable equipment which the defendant did not have with him at the time. Undeveloped films would be another example. The "electronic device" might need examination by an expert to ascertain its function before a decision could be made. Notwithstanding that such examples favour, from a practical point of view, a power to remove and keep possession for examination before deciding upon seizure or return of the property, I do not think that either the statutory provision or the terms of the warrant here in question ought to be construed as giving any such authority. We are in a field where, in my opinion, one would expect such authority to be directly and expressly conferred by the statute if it was intended to be given. I think that the impression conveyed by a first reading of s. 10 is that both entry and seizure would occur at the same place if there is to be a seizure. I would so construe both the section and the warrant in the present case and hold that the decision to seize must be made and the contemporaneous belief must exist at the premises and before any removal therefrom if the removal and a subsequent detention of the property is to be lawful under the warrant.

If the views I have expressed are correct, ex post facto justification under the warrant is not possible. If the conditions for lawful seizure did not exist at the time when the goods were removed from the premises, it cannot subsequently arise under the warrant if the conditions afterwards come to be fulfilled. If the defendant did not entertain the requisite belief at the time he removed the goods from the premises he cannot, under the warrant, support a claim to be entitled to retain the goods on the basis of a later belief that he had formed. If he was able to show that the goods were the subject of or were evidence of the commission of a crime and that under the common law should be withheld from the plaintiff or delivered up to prosecuting or other authorities legally entitled to seek possession of them, the court would have to consider that matter but in such case the defendant would not be showing justification under the search warrant.”

80 It will be seen from these paragraphs, however, that Holland J was not stating that a belief based on reasonable grounds could never be held in respect of, for example, a tape recording on an unexamined film roll. Rather, his Honour was examining the proper construction of the legislation then under consideration to ascertain whether it permitted removal and later seizure after an examination had taken place. Holland J was of the view (as am I in relation to the Victorian legislation) that it did not. Moreover, Holland J acknowledged the right to retain goods in circumstances contemplated by the propositions in Ghani v Jones. Trimboli’s case, as a consequence, does not support Mr Lange’s argument.

81 In the event, however, that I may be wrong in relation to my view that the failure to "play" the CD at the premises was not fatal to the existence of a belief based on reasonable grounds, I will at a later point in this decision examine the matter within the terms of the discretion required by s138 of the Evidence Act (NSW).

82 I turn then to consider the subsidiary points relied on by Mr Lange. The next argument related to the fact that the imaging was done by the Federal Police, and that the image made was retained by the Federal Police on their secure network. Mr Lange argued that this was contrary to the direction given by the Magistrate on 17 September 2004.

83 If Mr Lange is right in this particular argument, the "impropriety" was of the utmost technicality. The Crown submitted that Mr Lange was not right. The Crown suggested that the direction given by the Magistrate ("items numbered 1 to 14 may be conveyed to the Victoria Police Forensic Service Centre for analysis") did not preclude the Victorian Police from outsourcing the imaging to the Australian Federal Police. There were good reasons for doing so. Secondly, the AFP and the Victorian Police were involved in a joint task force in relation to Operation Pendennis. Thirdly, the primary purpose of the search process, at least from the point of view of Detective Senior Sergeant Murray, was the need to detect as a matter of urgency an imminent terrorist attack. There is much to be said for the Crown's argument in this regard. Although I am reluctant to find that the police were at fault in this particular aspect of the matter, I will assume for the purpose of the argument that the imaging by the AFP was not expressly sanctioned by the Magistrate. Accordingly, I will revisit this issue when I examine the operation of s138 of the Evidence Act.

84 It should be noted, however, that I do not accept the subsidiary point made by Mr Lange to the effect that the Victorian Police gave possession of the CD to the AFP. They did not. The CD remained at all times, especially during the testing, in the possession of the Victorian Police Force. The Magistrate's order authorised that retention.

85 The next point was that the retention of the CD and the making of a copy was illegal or improper. In relation to this argument, I accept Detective Senior Sergeant Murray's evidence that a rapid vetting of the material was made very shortly after the seizure and that it revealed that there was no immediate terrorist target.

86 Secondly, I accept that officers connected with Operation Pendennis examined the contents of the CD at or shortly after the vetting process and concluded that the material contained on it would be likely to be relevant to a terrorist prosecution against Aimen if other evidence could be obtained in the course of the subsequent investigation to justify the commencement of criminal proceedings.

87 It should be noted that the contents of the CD really provided the cornerstone of two of the charges against Aimen, namely the charges that he was in possession of terrorist material, knowing of the connection. Mere possession of the material on the CD would not have proved the commission of these offences, but its contents would have been relevant to proof.

88 These findings mean that the police were justified in retaining the CD and they might have retained it, in fact, until the Melbourne prosecution against Aimen for terrorist offences had concluded. They did not do so, but this was so for a tactical reason. The CD was returned to allay suspicion while further surveillance of Aimen and his associates took place. I accept that the CD was returned not because it was of no further value to the investigation but because its return might lead the Melbourne terrorists into thinking that their activities had gone undetected.

89 The passage in the fourth of the propositions of Lord Denning (Ghani v Jones) clearly contemplates the police may make a copy, and this is the case particularly if there is an intention to return the original. As it happened, the CD was not necessary for the car theft prosecution because of the plea of guilty. It was necessary in one sense to retain it for the terrorist charges laid in November 2005, but the police decided to take a risk in that regard by returning the CD to Aimen in early June 2005. The risk was taken, as I have said, to allay the suspicions of Aimen and his associates. I am not aware of the actual reason for the change of approach which led to the ASIO reseizure of the CD from Aimen on 22 June 2005, but I do not consider that the reseizure affected the legality or otherwise of the copying which had been done back in September 2004. The power of police to make a copy of a document seized has been confirmed by the decision of Bell J in Greer v Commissioner of Police. The present situation is not a case where it could be said that the purpose of the photocopying was to deal with the property otherwise than for the purpose of the powers conferred by the warrant, or for the purpose of retaining evidentiary material relevant to a serious offence outside of the terms of the warrant.

90 The final point argued by Mr Lange was that it was improper for the police to retain the CD after the motor vehicle theft prosecution concluded in January 2005. But, as I have said, prior to that time the decision had been made to retain the CD and the copies for the purpose of the ongoing investigation into the terrorist offences. In accordance with the well established principles I have mentioned, it has not been demonstrated that the police acted improperly in that regard. Indeed, it is not without practical significance to note that no proceedings were ever instituted by Aimen to recover the property from the police. Nor were there any allegations by his very experienced lawyers at trial, to suggest that any of the matters I have dealt with in this decision warranted or could possibly have warranted the exclusion of the evidence against him at trial.

Application of the discretion under s 138 of the Evidence Act

91 On the basis that any of the matters raised and argued by Mr Lange may be thought to be improprieties or illegalities, it is necessary for the Crown to persuade the Court to admit the evidence.

92 The evidence of the contents of the CD is, plainly enough, probative of the charge against Khaled Cheikho as part of the circumstantial case sought to be made by the Crown. There are two principal ways in which the evidence is probative to the charge. The first is that the relationship of Aimen to some of the accused, his and their relationship with the cleric, Sheikh Bakr, and the association between all of them, is relevant, especially to the mental element of the alleged offence and proof of the terrorist nature of the preparatory actions by some of the Sydney accused. In addition, the evidence is relevant to rebut the defence case that Khaled Cheikho’s actions and words including his possession of extremist material, is innocent. Secondly, the weapon-caching section of one of the books on the CD is alleged to be reflected in the activities of some of the Sydney accused in taking steps to conceal weapons, especially towards the end of the alleged conspiracy period. It might also be mentioned that Khaled Cheikho's downloading of one of the publications contained on the CD is alleged to be an indication of “sharing” extremist material between a member of the Melbourne group and one of the Sydney conspirators. All these matters are relevant to the proof of the Crown’s circumstantial case against all the accused, including Khaled Cheikho.

93 Mr Lange submitted, however, that this evidence is not unduly important in the trial against the Sydney men. He argued that it was only of “marginal relevance”. I agree that it is only a small part of the Crown case and that it is not, by any means, the most important part of the evidence against the Sydney accused. The principal evidence against them will be the allegations of their own individual activities, including their possession of extremist and jihadist material in one form or another. It is not, however, trivial or unimportant evidence.

94 The offence charged against each of the accused is a very serious one, carrying as it does a maximum penalty of life imprisonment. The legislature has, by virtue of the maximum penalty, recognised that the more serious of terrorism offences are properly to be regarded as among the worst of those in the criminal calendar.

95 I do not regard any of the alleged improprieties or contraventions as being serious. I do not accept that any of the alleged improprieties or contraventions was deliberate or, for that matter, reckless. Mr Teesdale plainly believed that he was entitled to seize the four CDs in Aimen's bedroom. The worst that can be said is that the fact that he did not test those CDs at the premises before seizing them could possibly lead to a conclusion that he did not have reasonable grounds for the belief he held. On the other hand, the search was reasonably conducted and it was moderate in every respect. There is not the slightest suggestion that the police in any way intentionally transgressed or trampled upon Aimen's rights. Nor has Aimen ever complained that they did. The arrangement to obtain duplicate images of the CD was done for proper reasons and it was purely an oversight, at most, that the Magistrate was not asked to expressly sanction the procedure that was adopted. The retention of the original CD and the copies was justified having regard to the ongoing terrorist investigation. In any event, the police were certainly entitled to assume that they had that entitlement, and it has not been demonstrated that their actions in that regard were in any way deliberate or reckless. In my opinion this extends to each and every aspect of the matters alleged by Mr Lange in his argument.

96 None of the other matters mentioned in s 138(3) require discussion. The only one that was faintly emphasised in argument was the matter contained in subs (3)(h). Mr Lange submitted that there would be no difficulty with the police tendering in evidence the CD, which had been reseized by ASIO (and later obtained by the AFP through a second warrant), rather than relying upon the original seizure of the CD or the images taken and created in September 2004. This argument is something of a two-edged sword for Mr Lange. If there is no need for the police to rely upon the 2004 seizure at all, and if it is accepted that the prosecution may tender the CD on the basis that it was later obtained by ASIO, and then later by the AFP using appropriate procedures in 2005, one wonders why the application has been brought at all. I rather suspect that counsel is hoping to “knock-out” the original seizure in the expectation that some flaw in the second seizure will be later brought to light. If so, the defect, if any, in the second seizure has not been identified during the present argument.

97 I prefer to answer counsel’s reliance upon s 3(h) by simply making two observations. First, I am not satisfied that there is any connection whatsoever between any alleged impropriety relating to the first seizure and retention of the CD and the subsequent decision by ASIO to reseize the CD under its own warrant. While the evidence has not explained that subsequent decision to me, I am perfectly satisfied that there is no suggestion that it was done as some type of cover-up for an earlier defect or impropriety. There is no suggestion to that effect at all in any of the evidence or the arguments. Secondly, in the circumstances of the present matter, I am satisfied that subs (3)(h) has very little role to play. To the extent it does, it does not favour exclusion.

98 The Court's task is to balance any alleged impropriety in obtaining evidence against the public interest in successfully prosecuting alleged offenders. The asserted breaches here are either quite innocent or inadvertent. The breaches, if any, were not deliberate or reckless. The offence alleged against the accused, on the other hand, is very serious indeed. Although the evidence is not of great importance in the Crown case, I am persuaded overall that the Crown has established that the desirability of admitting the evidence outweighs the undesirability of admitting it, notwithstanding the breaches or possible breaches which may have occurred.

99 In those circumstances, I hold that the evidence should not be excluded and may be admitted at trial.

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