R v HG; R v We (No 1)

Case •

[2019] NSWSC 573

•

24 July 2018

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: R v HG; R v WE (No 1) [2019] NSWSC 573
Hearing dates: 16 July; 18 July; 19 July; 20 July; 23 July; 24 July 2018
Date of orders: 24 July 2018
Decision date: 24 July 2018
Jurisdiction:Common Law
Before: Bellew J
Decision:

See [79]; [93]; [99]; [104]; [122]; [130]; [149]

Catchwords:

EVIDENCE – Where two accused charged with doing acts in preparation for a terrorist act – Admissions made by one of the accused to police – Where that accused was under the age of 18 at the time – Where those admissions were made in the absence of an adult – Whether there was a proper and sufficient reason for the absence of an adult – No proper and sufficient reason – Opportunity for police to have an adult present – Where police encouraged the making of the statements by the offender in the absence of an adult – Evidence excluded in part

 

EVIDENCE – Where two accused charged with doing acts in preparation for a terrorist act – Where Crown sought to lead evidence of the accused in company at a prayer room shortly prior to their arrest – Whether evidence relevant – Whether if relevant evidence should be excluded on the basis that its probative value was outweighed by the danger of unfair prejudice – Evidence admitted

 

EVIDENCE – Where two accused charged with doing acts in preparation for a terrorist act – Evidence of disposal of items by the two accused at the time of doing such acts – Whether evidence relevant – Evidence admitted

 

EVIDENCE – Where two accused charged with doing acts in preparation for a terrorist act – Where Crown sought to lead evidence against one accused of his presence at a previous unrelated protest holding a sign promoting violent ideology – Whether evidence relevant – Whether evidence should be excluded on the basis that its probative value was outweighed by the danger of unfair prejudice – Evidence relevant to the accused’s extremist ideology – Evidence admitted

 

EVIDENCE – Where two accused charged with doing acts in preparation for a terrorist act – Where Crown sought to lead evidence against one accused of his admissions made regarding previous travel to parts of Egypt – Where admissions made outside of Australia to consular officers – Where officers of the Egyptian Government were in close proximity to the accused when the admissions were made – Where the accused had previously been held in Egyptian custody - Whether the admissions had been influenced by the violent and oppressive conduct to which the accused had been subjected when in previous custody – Evidence excluded

 

EVIDENCE – Where two accused charged with doing acts in preparation for a terrorist act – Where Crown sought to lead evidence of extremist material found on the mobile telephone and computer of one accused – No direct evidence that the accused had read or viewed the material – Whether evidence relevant – Whether the probative value of the evidence outweighed by the danger of unfair prejudice – Evidence relevant to the state of mind of the accused – Not unreasonable to assume that accused had viewed, or had intended to view – the material – Evidence admitted

 

EVIDENCE – Practice and procedure – Application for separate trial – Where Crown sought to try two accused jointly for offence of committing acts in preparation for a terrorist act – Where some evidence admissible against one accused but not the other – Where that evidence clearly defined – Not a case where the evidence to be lead against only one accused was significantly different to or weaker than that which was to be lead against the other accused – Application for separate trial refused

  WORDS AND PHRASES – “influence” – “influenced by”
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Habib v Nationawide News Pty Limited (2010) 77 Higgins v R [2007] NSWCCA 56
Nye v New South Wales [2002] NSWSC 1270
Privett [2001] NSWCCA 518
R v Hillier (2007) 228 CLR 618; [2007] HCA 13
NSWLR 299; [2010] NSWCA 34
R v JF [2009] ACTSC 104
R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965
R v Zhang [2000] NSWSC 1099
Zaknic Pty Limited v Svelte Corporation Pty Limited (1995) 140 ALR 701
Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206
Category:Procedural and other rulings
Parties: Regina - Crown
HG – Accused
WE - Accused
Representation:

Counsel:
I Bourke SC and R Ranken - Crown
B Walmsley QC – Accused HG
J Trevallion – Accused WE

  Solicitors:
Director of Public Prosecutions (Cth) - Crown
Birchgrove Legal – Accused HG
Alexanders Lawyers – Accused WE
File Number(s): 2016/3051142016/305103
Publication restriction: Nil

Judgment

INTRODUCTION

  1. The accused, to whom I shall refer as WE and HG (each being a young person), have each pleaded not guilty to an offence contrary to s 101.6(1) of the Criminal Code 1995 (Cth) in the following terms:

Between about 6 October 2016 and 12 October 2016 at Sydney in the State of NSW did act in preparation for, or planning, a terrorist act (or acts).

Particulars of terrorist act

The terrorist act (or acts) which was (or were) to involve an action or threat of action, involving the use of a bladed weapon(s), that was or were to be done:

(a) with the intention of advancing a political, religious or ideological cause; and

(b) with the intention of:

(i) coercing or influencing by intimidation the Government of the Commonwealth or a State Territory or foreign country or a part of a State Territory of foreign country; or

(ii) intimidating the public or a section of the public; and

(c) in circumstances where the action, if carried out, would;

(i) cause serious harm that is physical harm to a person or persons; and/or

(ii) cause serious damage to property; and/or

(iii) cause a person’s death; and/or

(iv) endanger the life or a person or persons other than the person taking the action; and/or

(v) create a serious risk to the health or safety of the public or a section of the public; and

(d) in circumstances where the action to be done or threatened would not be advocacy, protest, descent or industrial action, or alternatively would not be advocacy, protest, descent or industrial action of a kind not intended to:

(i) cause serious harm that is physical harm to a person; or

(ii) cause a person’s death; or

(iii) endanger a person’s life, other than the life of the person taking the action; or

(iv) create a risk to the health or safety of the public or a section of the public.

  1. Both accused have filed notices of motion seeking the exclusion of certain evidence relied upon by the Crown.

AN OVERVIEW OF THE CROWN CASE

Background

  1. In broad terms, the Crown alleges that on 12 October 2016 the accused were involved in purchasing, and taking joint possession of, two tactical hunting knives, in preparation for, or planning, a domestic terrorist act that was to have involved one or more politically, religiously or ideologically motivated attacks upon one or more law enforcement officers, or other members of the public. The Crown alleges that both accused were sympathetic to the listed terrorist organisation Islamic State (IS), in circumstances where propaganda issued by IS has, in the past, called for attacks to be perpetrated upon on law enforcement officers and members of the public in Australia and other western countries.

  2. In June 2014 both accused attended East Hills Boys Technology High School. On 18 June 2014 each refused to stand at a school assembly when the Australian National Anthem was being played. When spoken to regarding this incident, the accused HG stated that he only stood for God, and that he did not respect Australia because “this country sends troops to Afghanistan to kill our men and rape our women”. HG subsequently enrolled in distance education but that enrolment was cancelled in February 2016 after it was reported to the Department of Education that he had obtained ongoing employment for 25 hours a week. WE continued to be enrolled as a High School student prior to his arrest although his attendance at school was sporadic.

  3. On 12 October 2016 WE failed to attend school and met with HG at HG’s house in Revesby. Together, they went to an Aquatic Centre in Revesby before returning to HG’s residence and then travelling to Bankstown together by bus. At about 11:30am HG entered the premises of the Bankstown Gun Shop located at 201 Canterbury Road, Bankstown. WE remained outside. Inside the premises HG was overheard asking the store attendant whether two particular knives had a fixed blade. Each of the knives in question in fact had a fixed blade of approximately 20cm in length which formed a cutting edge on one side, and a saw-tooth serrated on the other. Each was contained in a coloured box bearing the words “M-9 Bayonet”.

  4. An IS publication known as “Rumiyah” (Issue 2) which was published in October 2016 and which was found on HG’s phone, stated (inter alia) the following:

The most reliable knives are fixed blade knives, where the handle and blade are crafted from a single piece of metal. This is characteristically the strongest kind of knife, since the blade extends into the handle without any moving parts. As for choosing a target, then this is just like hunting prey. When carrying out a knife operation, it is not advised to target very large gatherings or overly crowded areas, as this presents a disadvantage and only increases the likelihood of being prevented from achieving kills. Therefore, it is advised that when conducting an operation by oneself, the target should be a smaller crowd, particularly for the one strong in build or skilful in using a knife, as such attacks are proven to inflict terror. Alternatively, for one pursuing a prolonged campaign of terror, he may target lone victims. For example, the target could be a drunken kafir on a quiet road returning home from a night out, or the average kafir working his nightshift, or someone walking alone in a public park or rural forested area, or someone by himself in an alley close to a night club or another place of debauchery, or even someone out for a walk in a quiet neighborhood.

  1. HG purchased the two knives and departed the shop. He then entered a nearby store where, in reference to the box containing the knives, he requested a “bigger plastic bag to cover this up”. No plastic bag was available and he left the premises.

  2. Both accused then walked a short distance down the road where they stopped adjacent to a garbage bin which was located outside commercial premises. At that point, WE removed a number of personal items from a backpack he was carrying, including school exercise books, a pencil case and a calculator bearing his first name on the inside. He disposed of those times in the garbage bin. The two knives were then placed inside the backpack.

  3. Both accused then walked to a nearby bus stop where they caught a bus to Bankstown Railway Station, before walking together towards Adnum Lane, Bankstown. There, they entered a Musalla, or prayer room, situated in private premises at 108 Adnum Lane.

  4. Residents at the premises which housed the Musalla overheard the two accused talking in a bathroom behind a locked door. When challenged and informed that this was not permitted, one of the accused stated that he was teaching the other how to perform hand washing ablutions before their prayers. Both accused then exited the bathroom.

  5. A short time later, police attended the Musalla. Near the entrance, police located a backpack, the appearance of which was consistent with that which WE had been carrying earlier that day. WE was observed inside the premises praying and police asked him to come outside. HG then emerged from another room in the premises. He too was requested to come outside. Once outside the premises, both accused were arrested and cautioned.

  6. During a subsequent search of the premises, police seized a number of items including the two knives which had been purchased earlier that day, the packaging, and a receipt for their purchase. One of the two knives had been removed from its packaging. Police also found two camouflage patterned neck gaiters, a portable torch and a pair of fingerless gloves, along with other items of clothing.

  7. Police also found a handwritten note in a backpack which bore both Arabic and English script. The Arabic script, when translated into English, read:

I advise you of piety towards God and walking in the path of God’s messenger and to pledge allegiance to the caliphate because he who dies without allegiance will die pre-Islamic death.

  1. The English script was incomplete and read:

And I advice my brothers in the…

  1. The Crown alleges that this note constituted a pledge of allegiance, to be made to IS, and to its leader and self-proclaimed Caliph, Abu Bakr Al-Baghdadi, prior to the commission of a terrorist act.

  2. Upon arrest, the accused were separated from one another and questioned by police. WE exercised his right to silence. However, HG made a number of statements in which he espoused a radical and extremist view of Islam. Those statements are the subject of objection and are discussed further below.

  3. When the two accused were taken to the police station, each was afforded the right to communicate with a legal representative. Having exercised that right, each declined to participate in an electronically recorded interview.

  4. Subsequent to the arrest of the accused, search warrants were executed at the following locations:

  1. the Musalla;

  2. HG’s residence in Revesby;

  3. the residential address of HG’s father where HG stayed from time to time; and

  4. WE’s residence at Parramatta.

  1. The Crown alleges that both accused held when what might be described as an extremist ideology. In particular, it is alleged that HG had previously demonstrated support for violent Islamist ideologies, and had previously expressed an intention to commit, or participate in, acts of violence which were politically, religiously or ideologically motivated. Specifically, on 15 September 2012 (when aged 12) HG was present during a violent protest by members of the Muslim community in Hyde Park in Sydney. On that occasion he was observed in the company of his step-father, Hamdi Alqudsi, holding a placard stating:

“Behead all those who insult the prophet”.

  1. Investigations have also identified that HG had made active use for a number of social media accounts on which he posted images of the IS flag together with the caption:

O Allah give victory to the Muslims.

  1. Following his arrest, handwritten notes written in Arabic were found in HG’s cell expressing support for IS.

  2. The Crown case against WE in terms of his intention and ideology is generally based around similar material contained on electronic devices to which he was connected.

RELEVANT STATUTORY PROVISIONS

  1. Having regard to the issues raised on the respective notices of motion, it is appropriate to set out a number of statutory provisions which bear upon the resolution of those issues.

The Evidence Act 1995 (NSW)

  1. Section 55 of the Evidence Act 1995 (NSW) (“the EA”) is in the following terms:

55 Relevant Evidence

(1) The 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.

(2) In particular, evidence is not taken to be irrelevant only because it relates

only to:

(a) the credibility of a witness, or

(b) the admissibility of other evidence, or

(c) a failure to adduce evidence.

  1. Section 84 of the EA is in the following terms:

84 Exclusion of admissions influenced by violence and certain other conduct

(1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by:

(a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or

(b) a threat of conduct of that kind.

(2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced.

  1. Section 137 of the EA is in the following terms:

137 Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

  1. Section 138 of the EA is in the following terms:

138 Exclusion of improperly or illegally obtained evidence

(1) Evidence that was obtained:

(a) improperly or in contravention of an Australian law, or

(b) in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:

(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or

(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a) the probative value of the evidence, and

(b) the importance of the evidence in the proceeding, and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d) the gravity of the impropriety or contravention, and

(e) whether the impropriety or contravention was deliberate or reckless, and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

The Children (Criminal Proceedings) Act 1987 (NSW)

  1. Section 13 of the Children (Criminal Proceedings) Act 1987 (NSW) (“the CCPA”) is in the following terms:

13 ADMISSIBILITY OF CERTAIN STATEMENTS ETC

(1) Any statement, confession, admission or information made or given to a member of the police force by a child who is a party to criminal proceedings shall not be admitted in evidence in those proceedings unless:

(a) there was present at the place where, and throughout the period of time during which, it was made or given:

(i) a person responsible for the child,

(ii) an adult (other than a member of the police force) who was present with the consent of the person responsible for the child,

(iii) in the case of a child who is of or above the age of 14 years--an adult (other than a member of the police force) who was present with the consent of the child, or

(iv) an Australian legal practitioner of the child's own choosing, or

(b) the person acting judicially in those proceedings:

(i) is satisfied that there was proper and sufficient reason for the absence of such an adult from the place where, or throughout the period of time during which, the statement, confession, admission or information was made or given, and

(ii) considers that, in the particular circumstances of the case, the statement, confession, admission or information should be admitted in evidence in those proceedings.

(2) In this section:

(a) a reference to a person acting judicially includes a reference to a person making a determination as to the admissibility of evidence in committal proceedings, and

(b) a reference to criminal proceedings is a reference to any criminal proceedings in which a person is alleged to have committed an offence while a child or which arise out of any other criminal proceedings in which a person is alleged to have committed an offence while a child, and

(c) a reference to a person responsible for a child does not include a member of the police force (unless he or she has parental responsibility for the child).

(3) Nothing in this section limits or affects the admissibility in evidence in any criminal proceedings against a child of any statement or information that the child is required to make or give by virtue of the provisions of any Act or law.

THE OBJECTIONS RAISED BY HG

Statements made by HG following his arrest

The evidence

  1. A large number of police and investigative officers attended the Musalla and arrested both of the accused. Constable Porou spoke with HG as police began arriving at the location. He said that HG commenced to raise his voice, in the course of which the following exchange took place:

Accused:    You’re all cowards.

Porou:       Where did that come from?

Accused:   Look how many of you there are, all pigs.

Porou:      Why is that?

Accused:   You’re all pigs. You’re a pig, you’re a pig, you’re a pig, and he’s a fat pig.

  1. These words were said in the presence of other officers, including Constable Gunn. At that point, HG had not been cautioned.

  2. Det. Sutherland then spoke to HG and said:

I’m Detective Sutherland from Bankstown Police, you are under arrest for possession of a knife in a public place. You do not have say or do anything if you don’t want to do you understand that?

  1. The accused responded:

Yes.

  1. Det. Sutherland then said:

I will record anything you say or do, we can use this recording in court, do you understand that?

  1. The accused responded:

Yes.

  1. The accused was then taken down the stairs by a number of police and into a laneway behind the Musalla to await the arrival of transport to take him to the police station. Det. O’Brien described the accused as being “quite animated and yelling in a belligerent manner” at that time. Det. O’Brien said:

He was saying things like, ‘you’re all pigs, look at you all, like lambs to the slaughter, you’ll all die in hellfire at the hands of Allah.

  1. There is no suggestion that these statements were anything other than the accused’s spontaneous utterances. The police then reached the laneway and waited for transport to take the accused to Bankstown Police Station. At paragraph 9 of his statement, Det. O’Brien stated:

I said to (the accused):

You’re going to be taken back to Bankstown Police Station. Do you understand that?

He continued to yell similar things whilst looking at me, but did not answer.

I said:

Just sit there while we wait for a car to take you.

He said no, I obey only Allah.

  1. Det. O’Brien then said to the accused:

I need you to calm down and sit there while we wait. There’s a busy road there, you’re worked up and handcuffed, I need you to sit down.

The accused said:

I won’t obey you, you’ll have to make me.

  1. At that point Det. O’Brien held the accused and lowered him to the ground, at which point the accused said:

You’re a coward, I’m not scared of you. Allah will see you burn, you’ll be slaughtered and burned in hellfire.

Det. O’Brien said:

You need to calm down and stop yelling. I’m sure other police have already told you but you don’t have to say anything at all do you understand?

The accused said:

No, but I’m not scared of any of you, I’ll say what I want.

Det. O’Brien said:

I know you’re not and you can say what you want but I can be recorded in used in evidence do you understand that?

The accused responded:

Use it. I don’t care. I’m not scared of anyone but Allah. I do his will. Whatever happens is his will.

  1. Det. Goodhew stated that at that point the accused was saying words to effect:

You coppers are all pigs. Kuffar. Youse are coward pigs.

  1. At about this time Det. Cashmere said to Det. Goodhew:

Get your phone out and record this, it shows his ideology.

  1. Det. Goodhew then removed a mobile phone from his pocket and commenced to film what the accused was saying. Simultaneously, an audio recording was taken by Det. Victor. A transcript of what was said is in the terms set out hereunder, by reference to the following attributions:

V.1   ACCUSED HG

V.2   DETECTIVE SENIOR CONSTABLE SIMMONS

V.3   DETECTIVE SENIOR CONSTABLE GOODHEW

V.4   DETECTIVE SENIOR CONSTABLE VICTOR

V.5   DETECTIVE SENIOR CONSTABLE CASHMERE

V.6   DETECTIVE SERGEANT O'BRIEN

V.   UNIDENTIFIED

V.1   (foreign language spoken) Allah has promised those of you who

believe, that he's going to rule, that he's, that he's going to give you authority on this earth, the same way as he's given the ones before you —

V.2   All, all of   

V.1   — so learn, learn, take example of those before you because —

V.2

V.1   — Allah destroyed them all. Take, take examples of the Roman

Empire that the Muslim empire destroyed three thousand versus three hundred thousand, take examples for by Allah (foreign language spoken) your whole government will be destroyed one day by Allah, your whole Government will be destroyed.

V.2   And what, what - - -

V.1   Youse it in court I don't give a shit.

V.2   What role will you play in that?

V.1   What role will I play in that, I'm nothing but a slave of Allah,

whatever Allah orders me to do I'm going to do it, that's it, all right? Whatever Allah orders me to do it I'm going to do it.

V.   …

V.2   Yes.

V.   Ask him what that   

V.3   And what's that?

V.1   What's that? Oh, there's a lot of stuff. Allah ordered us, ordered us

to pray a lot, ordered us to —

V.2   Caution him.

V.1   - "to do a lot of stuff---

V.   Yes.

V. 1   — you know what I mean. He ordered us a lot, to do a lot of stuff.

And inshallah, that day is coming, don't worry about it.

V.2   What, what   

V.3   And what did you call the other officer?

V.1   What is it? I called —

V.3   What did you call the -- -

V.1   —him a pig.

V.3   Yeah.

V.1   I called him a pig.

V.3   An apostate.

V. 1   Apostate, yeah —

V.3   Yeah.

V.1   He's an apostate.

V.3   What's that?

V.1   Anyone who's an apostate, anyone, apostate is someone who left

Islam. And anyone who works with the pigs, with the, ah, police, ah, is an apostate dog.

V.3   O.K.

V.1   You know what that is? He's an apostate dog, you know what that

means? He's going to enter the hellfire forever if he dies on this path, all right? So whatever youse do, you bunch of pigs, youse will never prevail over Islam. Islam is going to take over youse. And inshallah, Islam, we're going to, he's going to take all the kuffar's wife and children as slaves, all right? That's one thing. That's what we're going to do to your wives and slaves, inshallah, the Muslims.

V.3   Ah hmm.

V.1   We're going to take your wives and, and kids as slaves, inshallah,

all right? And inshallah, Islam will rule over this country whether you like it or not.

V.3   And then what?

V.1   Youse are nothing but a bunch of pigs, that's what youse are. And

then we're going to rule this land by Sharia.

V.

V.3   How are you going to do that?

V.1   How we're going to do that? Inshallah, by having a established, ah,

Islamic empire, inshallah and, inshallah, then rule over this country, whether you like it or not, it's going to rule over this country —

V.3   Mmm.

V.1   — this Islamic empire.

V.3   But how, physically, are you going to do that?

V.1   Me, I'm not going to do it, I'm saying in general, the Islamic empire

is going to do it.

V.2   But how?

V.1   I might be alive, I might be dead, I don't know what's going to

happen to me at that time.

V.3   Mmm.

V.1   But it's going to happen whether you like it or not, all right?

V.3   What are you going to do?

V.1   What am I going to do, I don't know, wait till we see that time

comes. We'll see when the time comes.

V.4   When's that going to be —

V.1   I don't know.

V.4   — is that today, tomorrow?

V.1   God knows. Allah knows alone. Allah promised he's going to, he's

going to rule this land by Sharia but he didn't say when so when the time comes then come and talk to me, that's if you can talk to me soon, inshallah, that's if you'll be alive, too. I might be dead, you might be dead, we don't know, all right? Everyone dies at the end of the day.

[INAUDIBLE BACKGROUND CONVERSATION]

V.1   (foreign language spoken) in the Quran it say to the disbelievers

that they will be destroyed and demolished.

V.4   Why?

V.1   That's what's going to happen to you as the disbelievers.

V.4   But why?

V.1   But why?

V.4   Why, why do you have this, such a strong feeling about this?

V.1   Why, because I'm a Muslim and I believe in Allah   

V.4   Yeah, but - - -

V.1   And I believe sovereignty and I believe that kin, kinship belongs to

Allah alone. And all you pigs, inshallah, we'll see you burn in the hellfire alive. Inshallah, we'll see all of youse burn alive in the hellfire, whether youse like it or not. Inshallah, I'll be sitting down, sitting down in paradise watching you from the window, watching you burn in the hellfire.

V.4   But why would we be burning in hellfire?

V.1   Because youse are kuffar, you know what kuffar is?

V.4   Tell me---

V.1   Kuffar is---

V.4   — what that is.

V.1   Kuffar are pigs and monkeys. Allah described them in the Quran as

pigs and monkeys, that's what youse are.

V.4   But - - -

V.1   We're going to see youse burn in hellfire, inshallah.

V.4   Just calling something —

V.1   Yeah.

V.4   — something —

V.1   Yeah.

V.4   — doesn't mean it is —

V.1   No, it is.

V.4   — explain why —

V.1   Akafir---

V.4   — a pig or a monkey?

V.1   — is something who rejects Allah and his messenger —

V.4   That's better.

V.1   — and the one who fights against Allah, his messenger. Yeah,

that's what a kufr is and that's what, exactly —

V.4   Explain it to me —

V.1   —youse are.

V.4   Explain it to me because I don't understand —

V.1   I explained it to you, youse know.

V.4   — I want you to tell me what's going on.

V.1   I don't need to explain to you what kuffar is, I'm sure you've studied

it. You think I'm dumb. I know, exactly, that you've studied it, I'm not dumb. We're not stupid. Don't think we're stupid like youse, all right?

V.4   I'm not calling you stupid —

V.1   No, no---

V.4   — I'm just asking you to explain it.

(BACKGROUND INAUDIBLE CONVERSATION)

  1. Although the Crown does not press the tender of anything said by the accused from this point onwards, I set out the balance of that conversation:

V.1   — you, your government is the dumbest government I've seen in

the whole world. Your government is seriously the dumbest government I've seen in the whole world, you don't know anything, Honestly, youse don't know anything.

V.4   So   

V.1   Only Allah knows everything, youse don't know anything. Youse

are nothing but a bunch of coward pigs. Fifty men on two young kids, 16 year old's, fifty men on two 16 year old's, youse are nothing but a —

V.4   Hey - - -

V.1   — bunch of cowards, pigs —

V.4   It's just me and you talking at the moment.

V.1   No, I'm talking, I'm, I'm, I'm making sure everyone's hearing this.

V.4   Ask him   

V.1   I'm making sure all of, everyone's hearing this.

[INAUDIBLE BACKGROUND CONVERSATION]

V.1   Youse are nothing but a bunch of cowards.

V.3   Caution   about the knife?

V.1   (foreign language spoken) Allah will destroy youse all.

V.4   Hamza   

V.3   Mmm.

V.4   Hamza, is it?

V.1   Yeah, Hamza.

V.4   O.K. I'm Detective Senior Constable Stephen Victor.

V. 1   Nice to meet you, mate.

V.4   Nice to meet you as well.

V.1   Nice to meet you.

V.4   Just letting you know —

V.1   I'll see you in the hellfire —

V.4   — at this point —

V.1   — soon, in shallah.

V.4   Appreciate that.

V.1   No worries.

V.4   Just letting you know, at this point you don't have to say or do

anything —

V.1   Yeah.

V.4   — do you understand that?

V.1   Yeah.

V.4   Anything you say or do can be recorded.

V.1   Yeah, I know.

V.4   This record can be used in court. Do you understand that?

V.1   Yeah. All right. No worries.

V.4   O.K. Prior to police stopping you here —

V.1   Yeah.

V.4   — where were you?

V.1   We were in, coming from home to here.

V.4   And where's home?

V.1   You said I can stay, remain silent   

V.4   Yeah, but---

V.1   I'm not, I'm not going to talk.

V.4   But - - -

V.1   I don't want to talk.

(BACKGROUND INAUDIBLE CONVERSATION)

V.4   You don't want to talk.

V.1   I don't want to talk. No, I don't want to talk.

V.4   But if you're just coming from home where's the harm in telling us

that?

V.1   I said I'm coming from home, I came here, done. Is there a big

problem there, done —

V.4   Yeah. But where's home?

V.1   — get out of here, get out of my face. Remain talk, ah, you said I

can remain silent so you can get out of my face then.

V.4   Well, we can't actually leave you, we still have to stay here.

V.1   No, like, you can get out of my faces and stop talking to me. You

don't have to talk to me.

V.4   Well, that's not going to happen.

V.1   Oh, you can if you want. I'm, I'm not, I'm just, ah —

V.4   I'm going to keep asking you questions —

V.1   — advising   

V.4   — if you choose not to answer —

V.1   I'm not going to answer.

V.4   — that's your own —

V.1   Yeah. All right.

V.4   — that's your own prerogative.

V.1   Yeah. All right. I'm not going to answer.

V.4   The building up the top here, what is that?

V.1   Which one?

V.4   The one on the second floor, the first floor, off the ground.

V.1   That's, urn   Mussallah, we just came here to pray to God.

V.4   When you say 'we' who do you mean?

V.1   Me and Waleed, we just came here to pray.

V.4   Who, sorry?

V.1   Me and Waleed, my friend, Waleed, that was here —

V.4   Waleed.

V.1   — we came here to pray, that's it.

V.4   How do you know Waleed?

V.1   Waleed, I know him from school, he used to be at my school.

V.4   O.K. Does Waleed have a surname?

V.1   Youse ---

V.4   I don't know who Waleed is.

V. 1   Youse already took it down, youse already took it down. He was

here, they already took his number, his name, everything down,

don't worry   

V.4   Yeah, but I, no one's told me that, can you tell me that?

V.1   No, you can ask the guy, that, that fat pig, the one that took   

V.4   O.K. So Waleed ---

V.1   Where is he---

V.4   — and you came here —

V.1   He's---

V.4   — to Massallah —

V.1   He's wearing, like, a baby suit, he's a fat pig, where is he? Eh, fat

pig, where are you?

V.4

V.1   You, in the baby suit   come give   

V.4   Hamza —

V.1   — the other pig wants your help.

V.4   Hamza —

V.1   Yeah. What is it?

V.4   Listen, man —

V.1   Yeah.

V.4   You and Waleed came here to the Massallah —

V.1   Yeah.

V.4   — to pray, you were saying?

V.1   Yeah.

V.4   Before you came here you were saying you were —

V.1   I was home.

V.4   Where was it?

V.1   I said I was at home.

V.4   You were at home?

V.1   Yeah. We went- --

V.4   And you came —

V. 1   — to the swimming pool then came —

V.4   How did you get here?

V.1   We went to the swimming pool and we came here. By bus.

V.4   Which Swimming Pool's this?

V.1   Revesby Swimming Pool. Ah, the one - - -

V.4   Revesby Swimming Pool?

V.1   — next to my house. Yeah.

V.4   By bus?

V.1   Yeah. We came by bus.

V.4   From your place, Revesby, Revesby Swimming Pool and then —

V.1   From —

V.4   - - - here?

V.1   From, ah, one of the stops in Revesby, I can't remember which one.

V.4   O.K.

V.1   A bus stop. So we entered the bus, we came by bus, is it too hard

to understand, and we came here.

V.4   No, no, I, I, it's not too hard to understand. I'm just trying to

understand —

V.1   

V.4   — the scope of what's happened. So this morning you woke up,

you and Waleed —

V.1   Yeah, yeah, look, look —

V.4   — jumped on the bus —

V.1   Look —

V.4   — went to the —

V.1   Look —

V.4   — pool —

V.1   Yeah.

V.4   — came here.

V.1   Yeah. All right.

V.4   Did you go anywhere in between that —

V.1   Yeah. I did.

V.4   — there and here?

V.1   I went, I went —

V.4   Yes. Where did you go?

V.1   Waleed didn't go. He went, I don't know where he went, he went to

buy some food or something, I don't know. But me, I went to the

Bankstown gun shop.

V.4   Yeah. And what did you do there?

V.1   I bought a knife.

V.4   What type of knife?

V. 1   I don't know what's the name.

V.4   Did, like, can you describe it for me?

V.1   I don't know, you've got all of it on camera, you can see it in the

shop, it's not my problem.

V.4   O.K. But which gun shop are we talking about?

V.1   Ah, youse got the receipt, the receipt was in the thing, you can go

check it out.

V.4 So there's a receipt?

V.1 Yeah. There's a receipt.

V.4 Where's the receipt?

V.1 The receipt, I don't know, the cops look at it.

V.4   Is that the one that you that you, is that the one you're referring

to up in the bag?

V.1   I don't know.

V.4   But what do you mean, you don't know —

V.1   I don't know —

V.4   — you're telling me —

V. 1   — the receipt was there —

V.4   — there's a receipt —

V.1   — you go get it. You want the receipt, go get it. Whether it's in

the bag or not —

V.4   Well, where do —

V.1   — I'm sure you took it. The cops have —

V.4   Where do I go get it. If it's- —

V.1   I don't know.

V.4   Just tell me where it is.

V.1   I don't know. They have it, the —

V.4   Is it still there, do you have it —

V.1   That fat   

V.4   — on you?

V.1   No, I don't.

V.4   Is it in your pockets?

V.1   No. You want to check my pockets?

V.4   Well, I'm sure they searched you so —

V.1   Like, there---

V.4   — if the receipt's there —

V.1   There's nothing in there —

V.4   — it wouldn't be out there.

V.1   — it's all right, there's no bomb or anything in there   

V.4   So you go and buy a knife —

V.1   Huh?

V.4   - - - why?

V.1   I bought a knife, ah, I don't know, because, ah, maybe one day I

might go to a hunting trip and I use it. Is there a problem with that?

V.4   Hunting trip.

V.1   Yeah. A hunting trip.

V.4   Have you done something like that before?

V.1   It was packaged, um, ah, no, not really, I mean, but I've went, like, I

stood around, hunting and that but I never, I never done anything - -

V.4   You haven't hunted pigs or monkeys or anything?

V.1   No. I don't, I don't eat pigs, like you. I don't eat pigs. I'm not a

dirty, dirty kafir like you to eat pigs so don't worry about it.

V.4   O.K.

V.1   Yeah.

V.4   So you buy a knife —

V.1   Yeah. It's called a, um, I forgot what it's called, a pig, pig

something, it's called a pig stick or something   

V.4   Pig sticker.

V. 1   It's just to stab pigs or something.

V.4   How big is it?

V.1   Huh? It's a, I don't know, I can't use my hands.

V.4   Describe it, verbally —

V.1   A---

V.4   - - - tell me---

V.1   — Subway Footlong knife or something   

V.4   A Footlong so —

V.1

V.4   — thirty centimetres?

V.1   Ah, yeah, around that much.

V.4   Have you opened the packaging?

V.1   Ah, yeah, I opened it and then I closed it back again but I wasn't,

when I was inside a, a building, I didn't do it in public so —

V.4   So it's a brand new knife —

V.1   It's a brand new knife.

V.4   You bought it today?

V.1   Huh?

V.4   You bought it today, a brand new knife?

V.1   Mmm —

V.4   You just   mentioned —

V.1   No. I bought it —

V.4   — you went there —

V.1   Yeah. I bought, I bought it.

V.4   Yeah. You---

V.1   Yeah. I bought two knives for me.

V.4   Two knives?

V.1   So I can keep one at home and then when I go hunting if that one

gets broken I can use the old one, ah, the new one, sorry, the other

one   

V.4   When are you planning on going hunting?

V.1   I don't know. I haven't thought of it yet. I just got it just in case, if I

need to go hunting.

V.4   Just in case.

V.1   Yeah. Justin case.

V.4   But have you done hunting before, have you gone hunting?

V.1   No. But I've went around people that do hunting.

V.4   Do you have friends that hunt?

V.1   No. But that was a long time ago when I was a kid so I said, you

know what, I feel like doing hunting, I feel like hunting some pigs

sometimes.

V.4   Ah - - -

V.1      hunt some pigs.

V.4   How old are you at the moment?

V.1   16.

V.4   You're 16.

V.1   Yeah.

V.4   And you go hunting. Well, you, actually, you said you haven't done

it yet.

V. 1   I haven't done it yet —

V.4   You've got friends that go hunting.

V.1   — but when I grow up, when I grow up and I, then I get my

license, for the gun license, after I do all this stuff then I go hunting.

V.4   O.K. So you buy two bayonets, knives, is that what you're telling

me?

V.1   What?

V.4   You bought two knives?

V.1   Yeah. Two knives.

V.4   Footlong knives, they're both the same?

V.1   Yeah. They're both the same.

V.4   Identical?

V.1   Huh, yeah.

V.4   Receipt's in the bag?

V.1   Yeah. I bought it —

V.4   How did you pay for it?

V.1   I bought, I paid by cash.

V.4   With cash?

V.1   Yeah.

V.4   So I take it your wallet's in the bag, as well?

V.1   What is it?

V.4   Your wallet.

V.1   Yeah. My wallet is in the bag.

V.4   Unless you, what, were you just carrying money in your pocket —

V.1   No.

V.4   — with your wallet?

V.1   No. I had money in my pocket at that time, my pocket, my wallet

was, ah, I didn't have it with me but my wallet is in the mosque

where you searched the thing.

V.4   But which bag?

V.1   My little bum bag —

V.4   I saw —

V.1   — my little   bum bag.

V.4   I saw a number of bags up there —

V.1   Yeah.

V.4   — which bag is it?

V.1   There was a little bum bag. I don't know if it's in the little bum bag

or the Nike bag, one of them but I think it's in the little one.

V.4   What colour Nike bag?

V.1   Nike bag?

V.4   Yeah. The colour of it.

V. 1   It's a grey, grey Army one.

V.4   What size?

V.1   Like, a grey camo normal, like, a average, average kind of bag.

V.4   Backpack?

V.1   Yeah. Backpack.

V.4   Throw bag backpack?

V.1   No. Backpack, backpack   

V.4   Does it - - -

V.1   It's called -- -

V.4   What sits   

V.1   ---Max Air.

V.4   Where's the Nike symbol on the bag?

V.1   I took them off cause it's forbidden in my religion cause Nike is a

Goddess. I don't use them —

V.4   So it was a, it is a Nike bag —

V.1   It is---

V.4   — but it doesn't have the symbols of Nike.

V.1   But I took off the logos, yeah, I took off the logos.

V.4   O.K. So both knives in the backpack?

V.1   No. Not in the backpack. I don't know where youse got the knife

from, I don't know, I put it, I put it in the backpack and then it

disappeared out of my bag. I don't know who touched it.

V.4   O.K.

V.1   Yeah.

V.4   And that's bought at the gun shop which you brought straight here?

V.1   Yeah. I bought it from a gun shop and I brought it straight here.

V.4   And you —

V.1   I'm the one who bought everything and I'm the one who did

everything.

V.4   And where did you meet Waleed?

V.1   Waleed was with me on the train and then he didn't know I was

going to the gun shop. I told him wait for me somewhere. I want to,

I told him I'm going to go TC so when I went to the gun shop he

didn't know, I went the gun shop, I bought everything I needed and

then I came.

V.4   What's TC?

V.1   TC Brothers, the pizza shop. I didn't go there. I told him I'm going

there but I didn't go there, I went to buy, I went to buy knives for

hunting.

V.4   O.K. So why did Waleed not come with you?

V.1   Because he didn't want, cause I didn't want him to come with me.

V.4   But why?

V.1   Because he might have got scared or something, I don't want him

to come   

V.4   Why would he get scared?

V.1   Because he might see a knife with me and he'll get scared.

V.4   A knife with - - -

V.1   He'll think that I---

V.4   — that you bought?

V.1   — that I'm holding a knife and he'll get scared a bit. But I told him

I bought knives, it's packaged and I just need to put it home.

V.4   How old's - - -

V.1   I came here to pray, I came here to pray and then from here I was

going to go back home and it's all packaged, I didn't take it out in public and I came back home.

V.4   How old's Waleed?

V.1   Ah, youse took down his information. I'm not going to answer that

V.4   But you know —

V.1

V.4   You went to school with him?

V.1   Yeah, I went---

V.4   Same, same class?

V.1   Yeah, the same class.

V.4   Was he - - -

V.1   But I don't know how old is he.

V.4   — younger, older?

V.1   I don't know.

V.4   Same class, same year as you?

V.1   Yeah. The same year as me but I don't know how old is he.

V.4   So he's roughly 16, thereabouts?

V.1   He's actually not in the same year as me, no.

V.4   O.K.

V.1   He's not.

V.4   So why would he be scared, though, has he never seen knives

before?

V.1   I don't know, I don't know about him. I just didn't want to cause I

didn't want to scare him cause I love Waleed, I don't want him to

think bad about me —

V.4   O.K.

V.1   — you know what I mean? But then later on I told him I'm using it

for hunting, that's it   

V.4   So did you leave him on the train, what did, what did you do?

V.1   No. I left him here. He, he stood somewhere on the side, I don't

know, on that same street and I went and bought the stuff, he didn't

know about it.

V.4   Which street's this?

V.1   I don't know. I don't know the names, like - - -

V.4   Can you describe the area?

V.1   You know where Bankstown gun shop is, come on, man? Oh, don't

be stupid. Like, you know where guns, Bankstown gun shop is.

V.4   O.K.

V.1   Don't act stupid —

V.4   So - - -

V.1   —towards me.

V.4   — you left him on the, on the street where Bankstown —

V.1   Yeah.

V.4   — Bankstown gun shop is —

V.1   Somewhere there. He stayed there and I told him, I told him I'm

going to go get TC, I went to get, ah, guns, I went to get knives,

whatever.

V.4   And then you came out, and then he was outside waiting for you - -

V.1   Well, I don't know---

V.4   — is that the case?

V.1   —what he done.

V.4   Well, was he still there?

V.1   Yeah. He was still there.

V.4   Still there where you left him?

V.1   I came back and then we continued walking. Yeah.

V.4   Yeah.

V.1   And I continued walking.

V.4   And then you guys decided to go where after that?

V.1   Yeah. We came to pray here to stay   and we'll pray here and

then we'll go back home.

V.4   How many times have you been here before to pray? Is this

somewhere where you come regularly?

V.1   Huh?

(BACKGROUND SOUND INAUDIBLE CONVERSATION)

V.1   Who's that guy in the   whatever he's wearing?

V.4   Who?

V.1   That guy with the grey shirt   he's talking with that, the pig in the

baby costume.

V.4   Oh, no, I don't recognise him. So this, this Masallah, how many

times have you come here to pray?

V.1   This Masallah. Ah, barely, I rarely come here.

V.4   You rarely?

V.1   I go everywhere.

V.4   O.K. But you decided to choose this one.

V.1   Yeah. I chose this one.

V.4   Why, why did you choose this one?

V.1   Cause it's quiet, it's nice, it's peaceful so I just came in there and I

sat down to pray to, I wanted to pray but then youse came in.

V.4   O.K.

V.1   With no search warrant, also, which I'm going to bring up in court,

don't worry about that.

V.4   What, would you bring that in court?

V.1   Because it's illegal to search someone without a search warrant

unless he's, um —

V.4 Not going to get into —

V.1 — part of a gang or part of something like that.

V.4 — a debate on legalities with you.

V.1 Yeah. All right, all right. Don't get---

V.4 Um - - -

V.1   Cause youse know youse are wrong   Youse don't even follow - -

V.4   So - - -

V.1   — your own, your own —

V.4   — what time —

V.1   — your own, ah, rotten laws.

V.4   What - - -

V.1   Youse know that, youse that, in your religion, democracy is false so

youse don't follow it. Youse know that your religion is false and it's

all full of lies so youse don't follow it.

V.4   Do you have anything else?

V.1   No. I don't have anything else.

V.4   O.K.

V.1   Do you have —

V.4   What time - - -

V.1   — anything else?

V.4   Yeah. I've got plenty of questions —

V.1   Oh, you've got plenty.

V.4   — don't you worry about that.

V.1   All right.

V.4   What time did you go to the gun shop, roughly?

(BACKGROUND INAUDIBLE CONVERSATION)

V.1   I don't know. I don't know about the time.

V.4   O.K. How many minutes was it before you arrived at Masallah?

V.1   What is it?

V.4   How long was it before you got here at the Masallah?

V.1   I don't know.

V.4   Minutes?

V.1   I can't remember. I can't remember.

V.4   A quarter, half an hour —

V.1   Yeah. Probably half an hour, something like that.

V.4   Half an hour?

V.1   Yeah. Something like that. I don't know how   

V.4   Were you meeting anyone here besides —

V.1   No. It was just me and Waleed —

V.4   Waleed.

V.1   — we just came to pray and then we're getting home.

V.4   Just you and Waleed.

V.1   Yeah.

V.3   How much were the knives?

V.1   Ah, I think a hundred and ten, something like that.

V.4   In total or this is for each?

V.1   Pretty sharp knives but. Huh?

V.4   In total or this is for each?

V.1   No. For each.

V.4   So two twenty?

V.1   Something like that. I don't know, I think he gave me on special.

V.4   Mmm.

V.1   Yeah. Something like that.

V.4   And for hunting?

V.1   What is this?

V.4   Hunting, you're saying?

V.1   Yeah, luse---

V.4   Knives —

V.1   —for hunting.

V.4   — for hunting.

V.1   Yeah. Of course, what else?

V.4   Have you ever tried, have you ever —

V.1   It's for hunting, the whole shop's for hunting.

V.4   Why, why would you choose that type of knife, twelve, the twelve

inch —

V.1   Because it's good to —

V.4   — thirty centimetre —

V. 1   — slaughter a pig —

V.4   Sorry?

V.1   It's good to slaughter a pig.

V.4   A pig?

V.1   Yeah.

V.4   Yeah.

V.1   (NO AUDIBLE REPLY)

V.4   Any particular type of pig?

V.1   No. Just a normal pig.

V.4   What type of pigs do you know?

V.1   Oh, I know just one.

V.4   Yeah.

V.1   (NO AUDIBLE REPLY)

V.4   Which is that?

V.1   A pig.

V.4   Sorry?

V.1   It's a pig.

V.4   But what you're talking, like, a wild pig, domesticated, what are we

talking?

V.1   Normal, I don't know, I don't know about pigs that much. I know

just they're, they're just one thing, that's it.

V.4   Yeah?

V.1   Yeah. I just got that knife, very sharp knife, to slaughter pigs.

V.4   But where were you going to go to do that?

V.1   Oh, there's a lot of places —

V.4   Do you know —

V.1   —around here.

V.4   — where the pigs are?

V.1   Oh, they're just everywhere.

V.4   Everywhere.

V.1   Yeah. They're everywhere.

V.4   Are they in the city?

V.1   I don't know. Maybe, if they find one walking, a little wild pig

walking around.

V.4   We'll take him back in your car.

V.1   Ah, actually, you know what, no, I wouldn't have these cause these

are a bit urban areas, I'll go more, mostly to the country side.

V.4   Country side?

V.1   Yeah. Somewhere in the —

V.3   Mmm.

V.

V.1   —jungles   

V.4   But you were just saying that they're everywhere?

V.1   Yeah. They're everywhere but, around Australia they're

everywhere, there's pigs everywhere.

V.4   Yeah?

V.1   Yeah.

V.4   But the, why - - -

V.1   I slaughter all kinds of pigs. I'll, I'll slaughter any kinds of pigs.

There's so many kinds, I'll slaughter any - - -

V.4   How, how do you plan on doing that?

V.1   Ah, I don't know, just, normally, um, ah, like, realistically, naturally

you slaughter it from the throat.

V.4   And how would you, like, with what, like, holding the knife   

V.1   What is it?

V.4   How would you hold the knife?

V.1   Normal.

V.4   In a fist with the knife pointing out from your thumb forward?

V.1   I don't know.

V.4   Or would you hold it —

V.1   Just hold like normally.

V.4   — backhanded with the knife coming out from your —

V.1   I don't know —

V.4   — your small pinky?

V.1   — just hold it normally.

V.      vehicle, five minutes.

V.5   No worries. What we might do, sir —

V.   Yeah.

V.5   — we can throw him, we we'll take   

V.4   How, so how were you going to hold it again?

V.1   Just normal.

V.4   Normal.

V.1   Yeah. I don't know you, I don't know what —

V.4   And then you'll, how —

V.1   — like, different ways to hold it —

V.4   How would you kill the pig?

V.1   — but pig is simple, easy to kill, you just slaughter, it's throat —

(BACKGROUND INAUDIBLE CONVERSATION)

V.4   And how would you hit the, how would you slaughter the throat of a

Pig?

V.1   Just, just keep rubbing the knife on his neck until he dies, done.

V.4   Have you done that before?

V.1   No. I've never done it.

V.4   Have you seen something like that?

V.1   You search on YouTube, it's not hard, or on the internet, yeah   

the internet.

V.4   What else would —

V.1   A lot of people slaughter pigs on the internet.

V.4   Yeah.

V.1   Yeah.

V.4   Just pigs?

V.1   Yeah. Just pigs.

V.4   Would you want to hunt anything else besides pigs?

V.1   Or, or, ah, maybe if I feel like a bit more hungry I'll go, cause I'm not

allowed to eat pigs, me, I'll just hunt pigs for fun.

V.4   Yeah.

V. 1   But other than that, like, cause I don't eat pigs, I'm a Muslim, I'll just

pigs for fun, I'll go hunt, maybe a dear or something.

V.4   A dear?

V.1   Ah, to eat it. Yeah. A dear, a dear will taste nice, tastes nice.

V.4   Some Venison.

V.1   What is it?

V.4   Venison.

V.1   Oh, there's all different kinds.

V.4   That's dear, that's the meat.

V.1   Yeah. All right.

V.4   Ah hmm. Were you going to go hunting on your own or were you

going to take someone with you?

V.1   No. I wasn't going to go now. I was thinking of after I get my

license, this, this, that. I'll probably go with, ah, I'll probably hire,

like, a trainer and I'll just get him to come, to take me to training for,

to hunt pigs and that.

V.4   In the city?

V.1   Anywhere, I don't know, wherever he takes me, he knows the

places. There's, they're everywhere.

V.4   Yeah.

V. 1   There's a lot of pigs.

V.4   Lots of pigs everywhere.

V.1   Yeah. They're everywhere.

V.4 But, O.K. but you, there's only one type of pig that you know of.

V.1   No. In generally, all pigs, I like to   either it's wild, either it's a

pink colour, either it's white colour, there's all different kinds of

colours for pigs.

V.4   Mmm.

V.1   Ah, whether it's a boar that's black colour, I don't care, as long as

it's a pig I'll slaughter them.

V.4   Yeah.

V.1   Yeah. It's for fun.

V.4   But you mentioned before that you wanted to get a gun license as

well.

V.1   Yeah. For later on so I can start hunting really.

V.4   Mmm. But how would you, what type of gun would you buy?

V.1   I don't know. Maybe, a two twenty two or two twenty three.

V.4   Yeah.

V.1   For hunting. I use —

V.4   Is that a long arm?

V.1   — hunting bullets.

V.4   A rifle?

V.1   A rifle, yeah. Rifle, hunting rifle.

V.4   Have you used a —

V.1   But that's later on when I get my license.

V.4   Do you have experience with rifles?

V.1   No. Ah, me, I'll never do, I'll never touch a rifle until I get my

license.

V.4   Mmm. But you, what, you haven't gone to a gun shop and —

V.1   What is it?

V.4   A gun shop or a gun range or something and shot —

V.1   No.

V.4   — a rifle before?

V.1

V.4   — under supervision?

V.1   No.

V.4   Nothing like that?

V.1   No.

V.4   So what, what knowledge do you have of guns?

V. 1   That's it, two twenty two, two twenty three —

V.4   What about - - -

V.1   ---rifles.

V.4   — the larger calibre, like a three O eight?

V.1   I don't know that. I've heard the three O eight —

V.4   The three O three?

V.1   — ah, Winchester, or something. I don't anything about these but,

from games   

V.4   O.K. What about hand guns?

V.1   Hand guns, um, just the normal ones, I even forgot their names —

V.4   Yeah.

V.1   — ah, what's it called again? Calibre or something, I don't know

how to say the games.

V.4   Would you be interested in getting a hand gun?

V.1   No.

V.4   What about a shot gun?

V.1   No.

V.4   Cause normally, pig hunting, they use shot guns.

V.1   No. I'll just get a rifle.

V.4   A rifle.

V.1   A hunting rifle. If I get my license. Not now, obviously, because it's

illegal. So once I get my license that's when I get the guns.

V.4   So going back on today —

V.1   Yeah.

V.4   So you wake up at home —

V.1   Yeah.

V.4   — you jump on a bus —

V.1   Yeah.

V.4   — come all the way out to Bankstown at, and you meet up with

Waleed - - -

V.1   No. Waleed came to my house, we went together to swimming —

V.4   Yeah.

V. 1   — and then after swimming, after the swimming pool we went

back and then I went, I told him, wait for me, I'm going to, we stopped halfway, I told him, wait for me, I'm going to go get TC Brothers, I went into the Bankstown gun shop, I got my stuff and then, ah, the knife and that, so late on hunting, so we can go hunting later on then I came back.

V.4   The swimming pool that you went to, have you prayed, did you pray

before or after, how, how many times have you prayed today?

V.1   Nothing. We were going to pray now.

V.4   You haven't prayed yet?

V.1   No.

V.4   So this was the first occasion?

V.1   No. It's, like, prayer time is 1 o'clock, it's not now. Around 1

o'clock, something like that. So I was going to wait till pray time comes then we'll pray together. Read Quran a bit —

V.3   What do you pray about?

V.1   I'll read Surah Takoba, read Surah Takoba, if youse know that, that

chapter, it's a very nice chapter, read that and then after we go.

V.3   What chapter's that about?

V.1 Ah, just in general, like, ah, it's about, um, a, there's all kinds of stuff

in that chapter. It's about the hypocrites, it's about all kinds of stuff,

yeah. Yeah, pretty much, it's more into today, like, it tells you about

reality today   and that.

V.3   Can you explain it to me —

V.1   No.

V.3   — someone that doesn't understand?

V.1   - - -1 can't   you, you, there's, there's a lot of explanation about

this chapter in, on Youtube   enough if you're really interested.

V.3   What's it called again?

V.1   Surah Takoba. Oh, Surah   too, there's two different chapters,

they're very nice chapters, you should learn them   

V.4   The, you've said you, you were Muslim - - -

V.1   Yeah. lam.

V.4   — what sect do you, um, identify with?

V.1   I follow the Salaf.

V.4   The Salaf.

V.1   Yeah.

V.4   So that's Sunni?

V.1   Ah, yeah, Sunni, you can say but, ah, today even Sunni's a different

sect. Like, the Shia, I don't even consider them Muslim, I consider them, ah, Kuffar, they're not even Muslims.

V.4   So Salaf, Salafi?

V.1   No. Not Salafi, there's, cause even Salafi's today, there's a lot of

them who are a bunch of puppets that work for the government which are apostates but I'm more into Salafi, like, ah, you can say I follow, um, I follow (Arabic name) what (Arabic name) say, I follow what (Arabic name) said, I follow what, um (Arabic name) said, ah (Arabic name), I follow what the (Arabic name) said, Imam (Arabic name), Imam (Arabic name), all these kind of people are the two I follow. I don't follow, um, ah, Sheikh Shady Alsuleiman, apostate and Sheikh Mufti or the other apostate cause they're a bunch of people, apostates them, the Mufti and Shady Alsuleiman.

V.4   Yeah.

V.1 And all the people there are just a bunch of apostates that work for

the government and they   and this is against our religion.

V.4   And that's because they work with the government?

V.1   Yeah. They work with the government.

V.4   And   

V.1   Anyone who works, anyone who works with a non-Islamic

government is an apostate.

V.4   That's the Australian Government, I take it?

V. 1   Any, any government who doesn't rule by the law of the Quran in

the law of Allah is apostate and whoever works with them is another apostate. I don't care who he calls himself. I don't care if his name is Mohammed. If he works with a government that rules by other than Allah Fullah is an apostate.

V.4   And that's regardless of state or Federal. It's —

V.1   Any, any —

V.4   Any.

V. 1   Any country that rules by the law of, by other than the law of Allah,

then whoever helps them against the Muslims or whoever helps them generally, and upholding their laws, is an apostate dog, that's what he is.

V.4   Mmm.

V.1   Yeah.

V.4   Allah (Arabic name) says in the Quran (foreign language spoken)

oh, you who believe do not take my enemies and your enemies as allies. And (Arabic name) also says, oh, you, who believe, do not take the Jews and the Christians as allies (foreign language spoken)   both of them are allies of each other (foreign language spoken) and whoever allies one of youse with them then he is from them, he's not a Muslim anymore.

V.   Yeah    

V.1   And that's the eighth nullifier of Islam, whoever allies with the non-

Muslims against the Muslims is a apostate dog. It's a eighth nullifier of Islam.

V.4   O.K.

V.1   Yeah.

V.4   I take it you speak Arabic?

V.1   Yeah. I do speak Arabic.

V.4   Which dialect?

V.1   Normal Arabic.

V.4   Normal Arabic.

V.1   Yeah.

V.4   Do you read and write?

V.1   Ah---

V.4   What can you speak?

V.1   - - - a bit, not that much. I, I read and write, generally, like, if you're

going to say generally but I'm not —

V.3      wait for the cage truck?

V.4   Yeah, yeah.

V.1   — a full advanced Arabic   

V.5      can I just, sorry, just interrupt for a quick second?

V.1   What is it, what is it?

V.5   Hamza, is it?

V.1   Yeah, Hamza.

V.5   Yeah.

V.1   Yeah.

V.5   All right. Just so you know, my name's Detective Andrew

Cashmere. I'm from, work with these guys at Counter Terrorism,

O.K.?

V.1   Yeah. All right.

V.5   Now, there's a police cage truck on it's way —

V.1   Yeah.

V.5   All right. And we're going to take you back to Bankstown Police

Station.

V.1   Yeah. No worries.

V.5   All right. I'm concerned that you were preparing to commit, um, a

terrorist offence. Do you understand that?

V.1   Yeah. You're concerned but it's not true.

V.5   O.K. Well, that's all right - - -

V.1   Yeah.

V.5   — all right, so that's what —

V.1   Yeah.

V.5   — is on my mind and that's what I'm —

V.1   Yeah. All right.

V.5   — I'm really worried about at the moment.

V.1   All right.

V.5   And especially the way you're speaking - - -

V.1   Yeah. No worries.

V.5   — O.K. so I'm, I'll be taking you back to Bankstown Police Station,

we want to get a responsible adult to come in, um, to be with you.

Is there anyone that you can nominate, a mum or a dad or a family

member?

V.1   I'll bring my dad.

V.5   Yeah. What's your dad's name?

V.1   Rabih George   youse don't scare me, I'm just telling you:

V.5   No. I'm not here to scare you, O.K.

V.1   No. Whatever happens is what God wrote down to happen

V.5   No problems.

V.1   — I don't care what happens   

V.5   Sorry, what was your father's name?

V.1   My father's name is Rabih George.

V.5   How do you spell that? R-A —

V.1   R-A-B-l-H - - -

V.5   Yeah.

V.1   ... G-E-O-R-G-E.

V.5   What, does he have a —

V.1   You know —

V.5   Does he have —

V.1   Do you know —

V.5   — a phone number?

V.1   Phone number, yeah, 0-4 —

V.5   Yeah.

V.1   ... 2-3 - - -

V.5   Yeah.

V.1   ... 0-6 - - -

V.5   Yeah.

V.1   ... 7-6 - - -

V.5   Yeah.

V.1   - - - 5-5.

(BACKGROUND INAUDIBLE CONVERSATION)

V.1   Eh, Hamza, you pig —

V.6   Yeah.

V.1   Why, how you been?

V.6   Yeah. We were here.

V.1   Where did you go? Where did you go?

V.6   I've been here. Where are you going?

V.1   Eh, we should hang out one day.

V.5   Is your father at home, does he work, what's he do?

V.1   I don't know. I don't know, I don't live with my father.

V.5   Do you know where he is?

V.1   I don't know, no.

V.   The truck's here guys, it's just coming up now.

V.4   He's not available, is there someone else that would be an

alternative —

V.1   Oh, no   

V.4   — that we can call?

V.1

V.5   So just so you know, O.K., you're, you're under arrest for acts in

preparation to commit a terrorist attack. Do you understand that?

V.1   Yeah. All right. I didn't —

V.5   All right.

V.1   — do it yet but under —

V.5   No.

V.1   — suspicion, yeah.

V.5   Yeah. That's---

V.1   Yeah.

V.5   - - - O.K. So that's, at the moment - - -

V.1   Yeah.

V.5   — that's why I'm arresting you —

V.1   Yeah. I know.

V.5   All right. I have concerns that you're about to do something —

V.1   Yeah.

V.5   — all right? I'm worried about the, the public's safety —

V.1   Yeah.

V.5   — and I have serious concerns that you're about to do something

V.1   Yeah, I know.

V.5   — really stupid today.

V.1   That's good, yeah.

V.5   Do you understand that?

V.1   Yeah. All right.

V.5   O.K. So what we're going to do, we'll take you back to Bankstown

Police Station —

V.1   Yeah.

V.5   — all right? We'll get a responsible adult to come in with you —

V.1   (NO AUDIBLE REPLY)

V.5   — and then we'll go over everything that's happened today, all

right?

V.1   Yeah. All right.

V.5   Just come over   

V.1   (NO AUDIBLE REPLY)

V.5

V.   Yeah    

V.5   Nothing in your pockets, at all?

V.1   No.

V.5   All right. We'll head back to Bankstown, we'll give you —

LISTENING DEVICE CONCLUDED

  1. According to Det. Goodhew, the entirety of these statements made by the accused extended over a period of approximately 25 minutes. Eventually, a truck arrived to transport the accused to Bankstown Police Station. At that stage a further conversation took place (by reference to the following attributions):

V.1   DETECTIVE SENIOR CONSTABLE SIMMONS

V.2   WALEED ELKHOLY

V.3   DETECTIVE SENIOR CONSTABLE VICTOR

V.4   DETECTIVE SENIOR CONSTABLE CASHMERE

V.   UNIDENTIFIED

V.   Are you bringing the truck up here?

V.1   Waleed, my name is Detective Senior Constable Ian Simmons from

the Terrorism Squad, O.K. I'll let you know —

V.   Are you bringing   

V.1   — at this point in time, you're under arrest for an act in preparation

of a terrorist act, O.K., just because of what we found in, in the bag,

the knives and everything. Do you understand that?

V.2

V. 1   Yeah. You don't have to say or do anything if you do not want to.

Do you understand that?

V.2   (NO AUDIBLE REPLY)

V.1   Yes.

V.2   (NO AUDIBLE REPLY)

V.1   Anything you do say or do can be recorded and we can use this

recording in court. Do you understand that?

V.2   Yeah.

V.1   O.K. What we're going to do now is we're going to convey you

back to Bankstown Police Station, O.K., where we'll arrange for a

support person to be there for you, O.K.?

V.2   All right.

V.1   O.K. We'll meet you back there.

V.3   Do you want to nominate one for now, someone that you know,

parents, mother, father?

V.2   (NO AUDIBLE REPLY)

V.4   All right. We'll get those details from you back at the station, O.K.?

V.   All right.

V.4   All right. Hop in the back of the truck, mate, and we'll head to

Bankstown.

  1. The accused was then taken back to the Bankstown Police Station where he arrived at about 1.00pm. Although the evidence is not precise, I am satisfied that a period of less than 30 minutes elapsed between the time that the accused left the laneway behind the Musalla, and the time that he arrived in the charge room at the Bankstown Police Station.

  2. Sgt. McEvoy who was the custody manager on duty at that time said the following in his statement:

Young person (HG) was in handcuffs and he was walked to the charge room counter. At this stage Constable El-Mir was at the computer on the opposite side of the counter. The young person was agitated and started yelling and ranting towards Constable El-Mir. The yelling and ranting was hard to understand, but I heard the young person (HG) call out towards Constable El-Mir and call her an ‘imposter and a kuffer’. I also heard the young person stated (sic) words to the effect, ‘I’m going to slaughter pigs by cutting their throats’.

At this stage I had walked around the corner and I was standing on the same side of Constable El-Mir and I was on the other side of the young person (HG) and the escorting police. I said, ‘calm down mate’. The young person kept ranting and mentioned something about him enjoyed (sic) being locked up so he could be like the prophet Abraham. Constable El-Mir and the young person (HG) had a short conversation and I walked into the Custody Mangers (sic) officer (sic) for a short period. When I returned the young person (HG) was still ranting and raving.

  1. In her statement, Con. El-Mir recalled the following:

6.   (HG) was ranting words in English and Arabic whilst I tried to ask him mandatory questions about his vulnerability, background and health status for record purposes.

7.   My first language is Arabic so I was able to understand a major of the ranting. (HG) stated words to the effect of ‘Your (sic) and El-Mir, you’re a kuffar (disbeliever) shame on you’. I did not take too much notice of this and remained professional and continued to complete my duties. It was at this time that Sergeant Justin McEvoy approached the counter and made his presence known to (HG) by introducing himself.

8.   I advised the officers in the area to have (HG) escorted to dock 4. Immediately (HG) was placed in a timeout awaiting a responsible person to attend the police station as per the young person’s rights.

9.   (HG) continued to be loud, reciting verses from the Quran. After each recitation, (HG) would stop and yell abuse at police that would walk in and out of the common area of the charge room. The words referred to police being pigs. It was then in Arabic dialect that (HG) stated words to the effect of ‘I will die a Marta (sic) and we will see who is laughing on the day of judgement’.

10.   (HG) would pray whilst in his cell and sat still for most of the time.

  1. Det. Victor was of four police officers who gave oral evidence on the application brought by the accused to exclude the evidence of his statements. He explained that the words “caution him” which were attributed in the transcript to Det. Simmons were in fact said by him (i.e. Det. Victor). He explained (at T44.47-T44.48) that what he had said in that regard was in the nature of a query, in circumstances where it had been confirmed to him that the accused had been cautioned. That confirmation is consistent with the undisputed evidence to which I earlier referred.

  2. Det. Victor acknowledged (at T42.11-T42.14) that he was cognisant of the fact that the accused was 16 years of age. He was then cross-examined (commencing at T42.22) as to his knowledge of statutory requirements governing the conduct of investigations involving persons under the age of 18:

Q. And can we safely assume that you were aware through professional experience the requirements in dealing with a child or a person under 18?

A. Yes, I am familiar with them.

Q. And can we add to that you were also aware of your obligations as an investigating officer in regard to a person who’s under arrest?

A. Yes.

Q. And tell me, what did you understand when you had that conversation with the police officer were your obligations in regard to George when it came to him being subjected to questioning?

A. That he’d been arrested - well my understanding was that he’d been arrested for custody of a knife in a public place.

Q. Yes.

A. And that being a 16 year old he’s entitled to be cautioned and if reasonably practicable those questions put to him can - should be with a support person, being over 16 - being 16 he’s entitled to choose that person.

Q. Yes, and when you mention “reasonably practicable” you say, don’t you, as you understand it, that a van had been called to pick him up to take him to the police station?

A. Well I haven’t actually said that, yes but - yet but I was aware that we were waiting for a police truck at the time.

  1. He was then asked (commencing at T43.35):

Q. Well what do you say were the constraints on your ability to ask George questions at that point in time when you started to do so?

A. Well the constraints were that he should have a support person with him under the State legislation, the Children’s Criminal Procedures Act.

Q. Is that all? What about the right to contact a lawyer for example as an arrested young person?

A. Yes, he’s entitled to that as well.

Q. And what was your state of mind as to whether he had been informed of those rights prior to your conversation with him?

A. I didn’t inform him of those and I’m not aware if other people had.

  1. Det. Victor was then asked (commencing at T44.43):

Q. And at the time that you were observing what the Accused said, you were aware at that time that he was under arrest?

A. Yes.

Q. And you were aware that he was 16?

A. Yes.

Q. And do I take it that those matters, perhaps along with some others lead

you to form the view that he should be cautioned?

A. Yes.

  1. In terms of his ongoing dialogue with the accused in the laneway whilst awaiting transport, Det. Victor gave evidence that he was asking questions for the purposes of “building rapport” (at T46.42). In that regard he was asked the following (commencing at T49.5):

Q. Let me take you to page 4 and you need to understand what’s just passed where you’ve asked him several questions, following on from “When that’s going to be? I don’t know. Is that today, tomorrow?”, on page 3, he then talks about God and Allah and Sharia and whether one is alive or dead, you might see without taking you to it, we’ve heard it, do you see that?

A. Yes.

Q. And then also mentions the Quran, in which he asserts to you and/or others who are listening, “In the Quran it says to the disbelievers that they will be destroyed and demolished”. Now that’s a pretty direct general threat, isn’t it? You took it as, can I suggest?

A. I, I - well it’s a comment that he makes. It didn’t make me feel any fear from him.

Q. But why did you then tease it out further with the question, “Why?”?

A. ‘Cause I wanted to, I wanted to see if he was just making a comment or if he had a deeper understanding of what he was saying.

Q. And he then answers, at the bottom of page 3, “That’s what’s going to happen to you as the disbelievers”, to which you repeat the question, “But why?” and go on over the page, “Why, why do you have this such a strong feeling about this?” What were you after when you asked that question?

A. A better understanding for myself of what he was, what he was thinking at that time. Like he was saying some things that were concerning to me. Not putting me in fear of my own safety or anything like that but it’s just, it’s one thing to say things, it’s another thing to actually have a strong belief behind it. So I was just questioning him if he can explain it, like why is this how it is.

Q. Well you see you keep pressing him on page 4 with questions, don’t you, a third of the way down, “But why would we be burning in hellfire? Tell me what that is in reference perhaps to the word ‘kuffar’?”, do you see that?

A. Yes.

Q. Did you know what the word ‘kuffar’ or ‘kafir’--

A. Kafir.

Q. Yes?

A. Yes I know what that means.

Q. You knew it at the time?

A. Yes I do.

Q. Well why did you ask him to tell you what it was?

A. ‘Cause I was, I wanted to see if he knew what that meant as well.

Q. What, in pursuit of building a rapport with him?

A. Well it’s for a number of reasons, building the rapport and, and trying to get a better understanding of what’s happening at this particular point when I’m dealing with him.

Q. Can I put this to you, Mr Victor, that you were more engaged in the process of fanning the fire, his emotional response against you and your colleagues at that time, weren’t you?

A. No that’s not true. And if you’d listen to the audio you can hear I’m actually quite deadpan with the way I ask questions to him. I’m not emotional, I’m not trying to fan any flames, as you put it.

Q. When you were asking those questions did it occur to you at the very least that you might gain some information from Mr George that is useful in the ongoing investigation you were part of?

A. That is the potential for when you’re speaking with people, yes.

Q. And is that something to which your mind was directed at the time?

A. Yes, it was because I was thinking - and later on my questions went down that path - it is an offence but if you have a reasonable excuse as to why you have possession of a knife then it no longer becomes an offence and we can discontinue what we’re doing with him. But if there was other things that he had in planning well then it changes the whole dynamics to what we’re doing. It’s no longer just a knife offence now it could be anywhere between armed with intent, wanting to do robberies, malicious wounding and even right at the end to a--

HIS HONOUR:

Q. I’m sorry, so you were asking questions to further an investigation, at least in part?

A. When I - after I cautioned him definitely.

Q. What about beforehand?

A. Well I am asking him questions but I don’t know what the answers are going to be or where the direction of the conversation is going.

Q. No but - and you can agree or disagree with this proposition as you see fit but were you asking him questions to further your investigation?

A. Yes.

  1. Det. Goodhew also gave evidence. He said (at T68.30-T68.35) that at the time of commencing his recording of the accused he had expected that the accused had been “advised … of his rights”. He said (commencing at T72.27) that he was aware of requirement imposed by s 13 of the CCPA in relation to young persons. He said that whilst he could not say if he turned his mind to those provisions at the time, he did know “that that piece of legislation says that anything said at a scene may be inadmissible or should be inadmissible”.

  2. Det. Goodhew confirmed that at the time that he was filming the accused he was aware that the accused was a young person and had been placed under arrest. He was then asked (commencing at T72.49):

Q. Did that alert you to the fact that section 13 of the Children Criminal Proceedings Act was likely to be applicable?

A. Yes.

Q. Did you make any enquiries as to whether or not any attempt had been made to comply with it?

A. In terms of getting a support person?

Q. Mm?

A. At the scene no. But as soon as we got back to the station that was the first thing we did.

Q. I understand at the station, but at the time that this was happening when Mr George was saying these things that were being filmed, did you make any enquiries as to whether or not there had been any attempt to comply with section 13?

A. No.

Q. Do you know if any other officer did from your own knowledge?

A. No.

  1. Det. Simmons also gave evidence and was cross-examined about things that he had said to the accused in the course of the conversation in the laneway. He agreed (at T80.40) that he had asked the accused what “role” he would play in the destruction of government. He was then asked (commencing at T80.42):

Q. Yes, and why did you ask that question?

A. I suppose the things that he was saying, he’s talking about some things that are quite some time ago, Roman Empire being destroyed, then also talking about the government being destroyed. Some quite I guess violent and very wide sweeping statements and I suppose what was on my mind is what sort of risks there may be to the public by him.

  1. Finally, Det. Cashmere gave evidence. He agreed (at T86.31-T86.38) that he had overheard the accused being arrested by Det. Sutherland. He was then asked (commencing at T87.33):

Q. Did you turn your mind at that stage to involve yourself in that process and ask either Mr Sutherland or do it yourself to make inquiries as to whether a family or friend of Mr George could be easily contacted?

A. Not at that immediate time.

Q. Why not?

A. I was letting Mr - detective at the time that was doing the talking do his job at that stage.

HIS HONOUR

Q. Did that prevent you from making an inquiry as to the availability of a family member?

A. No, sir.

  1. Det. Cashmere was then asked about his direction to Det. Goodhew to record what the accused was saying (commencing at T90.34):

Q. Before being a witness to that you describe in paragraph 11 that you spoke to Detective Goodhew and said to him, “Get your phone out and record this. It shows his ideology.”, correct?

A. Yes.

Q. Having regard to what we discussed earlier how did you come to say that?

A. Under the circumstances in the back of my mind I knew at the time that it was highly unlikely that the recordings would be used in evidence in court and probably ruled admissible(as said), that’s what I was thinking, but at the same time I believed that it was important to try and capture what was being said under the circumstances.

Q. For what purpose if you thought they were going to be ruled inadmissible?

A. Because for the purpose in my mind was to try and record evidence of what was happening in real time of what was being said. In my mind we didn’t just have knives in a public place, in my mind we had two young people that were about to commit a terrorist offence and I wanted that captured on as best we

could and I knew there’d be a strong argument later on down the track but I thought it was better to do that than sit there and do nothing.

Q. Because when it came to Commonwealth offences you, drawing upon your experience, well knew that section 37K of the--

HIS HONOUR: 23K.

WALMSLEY

Q. 23K of the Crimes Act 1914 made it perfectly clear that when questioning certain pre-conditions had to occur, otherwise it couldn’t occur?

A. I was actually thinking of the Young Offenders Act.

HIS HONOUR

Q. The Children (Criminal Proceedings) Act you mean?

A. Correct.

Q. And you took the view that that hadn’t been complied with?

A. Yes.

Q. And for that reason, the footage that was being taken, was likely to be inadmissible?

A. Correct.

Submissions on behalf of the accused

  1. Mr McDonald and A spoke with the accused in a room within the immigration detention facility at the airport. No other persons were present. The door to the room was kept open at all times, although Egyptian authorities remained immediately outside the room. The discussion with WE was not electronically recorded, although Mr McDonald took notes which he used to prepare a report (shortly after returning to the Embassy) upon his return to the Embassy immediately thereafter. A also prepared a report outlining the detail of his attendance.

  2. Mr McDonald later made two statements the first of which is dated 30 March 2017. In terms of his conversations with the accused, he said (commencing at para. 9):

9. WE confirmed that he had been transferred from Al-Arish in Northern Sinai to the Immigration Detention facility earlier that day. (WE) stated that he had been detained for 33 days. I note that this does not match with what was previously reported by WE’s father to the CEC – that WE was back with his family on 28 December 2015, as per para. 6. WE advised that for the first month of his detention in Al-Arish, he had hoped each day that he would be released, but that for the last 3 days he had been depressed and not eating or drinking. He noted that he had still been receiving food and water during this time. He advised me that for the last 3 days, he had thought about suicide. He requested food and water from me and I arranged for a bottle of water from Egyptian authorities, and for my Consular Manager to go and buy some food from the airport shops for him. The bottle of water was delivered immediately by the Egyptian authorities, which WE drank before continuing the conversation. The notes I took during my conversation with WE on 20 January 2016 were then used for my report on the meeting in cable CA18169H. This cable was written upon my return to the Embassy, immediately after the conclusion of the meeting, and sent at 12:47am on 21 January 2016.

10. During my meeting with him on 20 January 2016 WE was initially reluctant to discuss why he had been detained. However, during the discussion WE opened up and told me he had been detained by a man in plain clothes in Al-Arish as he was attempting to go to Sheikh Zuweid, because the man believed he was militant. Sheikh Zuweid is known to me as a stronghold of Ansar Beyt Almuqdis, also known as Islamic State-Sinai Province (Wilayet Sinai). At the time of his arrest, WE told me he had one, 800EGP, a Qu’ran and a wooden toothbrush in his possession.

11. When I asked WE about why he was in Sheikh Zuweid he said he initially wanted to go to Sheikh Zuweid but then wanted to return to his family in Tanata. He then went on to state that he had travelled to the region for “something stupid”. When asked what he meant by this, he elaborated that he had travelled to the region to join the militants there. I took this to mean Islamic State-Sinai Province (Wilayet Sinai), as WE went on to advise that he had become attracted to the terrorist organisation after viewing Jihad videos online and reading the Islamic State English language magazine “Dabiq”.

12. WE advised me that he was attracted to the “brotherhood” of the organisation that was portrayed in online videos and in Dabiq. He said it was this “brotherhood” and lifestyle and brothers in arms that he wanted to be a part of, and that he wanted to live with them and share in this life.

13. WE then went on to say that he had been depressed and not thinking properly. He said that his period of detention by the Egyptian authorities had changed his view and that he wanted to change his life completely and return to Australia. He said that he was fearful that, by attempting to join a terrorist organisation, he may have ruined his life forever, meaning his ability to get a job or establish a career.

14. WE advised that he had suffered physical abuse and threats while in detention. He said that he had been threatened with death and electrocution, and that he had been electrocuted “a little bit”. He had advised that he did not feel safe talking about this in Egypt due to fear of repercussions but would be happy to talk about it further in Australia.

15. WE advised that he had been handcuffed for 20 days without the ability to lift his hands to his face to brush dust from his eyes. He also stated that he had only been given two toilet opportunities per day and regularly had to urinate in a bottle. WE claimed that he had been beaten while in Egyptian custody. In response to a direct question from me, WE confirmed that he had not been held in general population but had a cell to himself.

  1. In a supplementary statement of 25 June 2018, Mr McDonald stated (commencing at para. 7):

7. In my previous statement I stated that Sheikh Zuweid was known to me as a stronghold of Ansar Beyt Almuqdis, also known as Islamic State-Sinai Province (Wilayet Sinai). “Wilayet” is the Arabic word for “Province”.

8. I knew Sheikh Zuweid to be an Islamic State strong hold because at the time the entire North Sinai region, of which Sheikh Zuweid is a part, was under a “Do Not Travel” travel advisory from the Australian Department Foreign Affairs and Trades specifically due to the high threats of terrorists attacks and the State of Emergency declared by the Egyptian Government in relation to the high level of terrorist activity in the region.

  1. A also made two statements, the first of which is dated 11 January 2018. Commencing at para. 20, he stated as follows:

20. During our interactions with WE he made the following comments:

21. WE was in Egypt with his family for a holiday, they were in Alexandria. He had left his family to travel alone to see some of Egypt in the Northern Sinai region.

22. Once I informed WE that North Sinai is not tourist region, but an area of violence, WE changed his story and then said that he had left his family to travel to the Sheikh Zuweid region to make conference with “extremist militants” in Northern Sinai with the intention of then travelling to Libya for the purpose of joining the fight there.

23. WE said that he was attracted to the “extremist ideology”, the “brotherhood”, and the “lifestyle” and had researched online and had viewed the Islamic State Dabiq magazine.

24. WE said that he had researched the recent history of Syria and Iraq. His family was not aware of his intentions to join and extremist group and his father would be very disappointed in him if he was aware of him being detailed.

25. WE stated that a friend in Sydney was aware of his plans but was not able to travel himself. He did not share any further information about this friend.

26. WE was concerned that he would be in trouble with the Australian Government upon his return. He asked if he was going to be arrested when he got back to Australia to which I advised him I did not know.

27. WE was concerned about the reaction of his father and family after they became aware of this incident, he stated he believed he had made “a mistake”.

28. WE mentioned that he was exposed to extremist ideology via the internet.

29. WE mentioned that he did not know anyone in Egypt other than his family and had attempted to join the extremist on his own. Once he had travelled to the region, he could not make contact with any groups and was quickly detained by Egyptian authorities.

30. At one point during the conversation Dillon asked WE how he had been treated, WE became emotional and claimed he had been “beaten” and that the Egyptian authorities had used “some electricity”. I could not see any physical sign of injuries or marks on WE which was consistent with this claim and WE did not present any further evidence of this.

Submissions of the accused

  1. Counsel for the accused submitted that the evidence of the accused’s statements to Mr McDonald and A should be excluded pursuant to s 84 of the EA because the admissions made by the accused had been influenced by the violent, oppressive, inhumane and degrading conduct which he had being subjected to whilst he was in Egyptian custody. Counsel submitted that such conduct clearly fell within each and every one of the categories set out in s 84 and that, the issue having been raised, the onus fell upon the Crown to establish that any admissions made by the accused were not so influenced. In this regard, it was submitted by counsel for the accused that any reliance by the Crown upon the fact that the statements had been made freely and voluntarily was irrelevant, having regard to the test imposed by s 84.

  2. Counsel for the accused also pointed to a number of other factors which, he submitted, strongly suggested that anything said by the accused had been influenced in the manner contemplated by s 84. They included the fact that:

  1. the conduct of the accused had been very recent in time;

  2. at the time that he spoke to A and Mr McDonald, the accused was still in the custody of Egyptian authorities;

  3. at the time that he spoke to A and Mr McDonald, Egyptian personnel were immediately outside the door of the room in which he was speaking, in circumstances where the door had been left open; and

  4. the accused was only 16 years of age at the time.

Submissions of the Crown

  1. The Crown made it clear that it did not propose to adduce evidence of any information provided by the Egyptian authorities regarding the circumstances of WE’s detention, nor of anything said by WE whilst he was in their custody. It was also made clear that the Crown sought to adduce evidence only of what WE told Mr McDonald and A about the fact and location of his arrest, and his reasons for travelling to that location.

  2. The Crown submitted that the evidence was clearly relevant and that when taken with other evidence to be adduced by the Crown, established that WE strongly identified with militant jihadism, and did so to an extent which was sufficiently strong to motivate him to leave his family and travel to an area known to be (and known by him to be) a stronghold of IS. It was further submitted that, together with other evidence of WE accessing extremist material, the evidence of what he had told Mr McDonald and A was capable of rationally affecting the assessment, by a jury, of the probability that his activities with HG on 12 October 2016 were activities in which he had engaged with the intention of advancing the political, religious or ideological cause of extremist Islam.

  3. The Crown further submitted that the statements made by WE to Mr McDonald and A, the fact and location of his arrest in Egypt, and the reasons for his travel, were adverse to his interests in the proceedings and therefore admissible pursuant to s. 81 of the EA. It was submitted that whatever may have been asserted by WE about his mistreatment at the hands of Egyptian authorities, it was apparent that he was sufficiently comfortable to tell Mr McDonald and A about aspects of that mistreatment, leading to a conclusion that the statements made by him were made freely and voluntarily. It was further submitted that in circumstances where contemporaneous records were made by each of Mr McDonald and A shortly after their return to the Embassy there was no room for any suggestion that there had been any concoction or recent invention as to the substance of what WE had said.

Consideration

  1. I am satisfied that in the period leading up to his conversation with Mr McDonald and A, the accused had been subjected to conduct, which could be appropriately described as violent, oppressive, inhumane or degrading, at the hands of the Egyptian authorities. The Crown did not submit otherwise. In these circumstances, the Crown accepted that the issue had clearly been raised. Accordingly, the question for determination is whether the Crown has satisfied me that the admissions made by the accused were not influenced by the conduct in question.

  2. The term “influenced by” in this context was considered by the Court of Appeal in Habib v Nationawide News Pty Limited (2010) 77 NSWLR 299; [2010] NSWCA 34. At [238] the Court (Hodgson, Tobias and McColl JJA) observed that the Macquarie Dictionary Online defined the word “influenced” to mean:

Modify, affect, or sway;.

  1. Their Honours also observed that the Oxford English Dictionary Online defined “influence” as:

“To affect the mind or action or; to move or induce by influence; to affect the condition of, to have an effect on”.

  1. Having cited these definitions, the Court observed that neither evoked a particularly high test of causation.

  2. The Court also rejected the proposition that the conduct in question was required, for the purposes of s 84, to fall at a significant level of impropriety: R v JF [2009] ACTSC 104 at [37] per Refshauge J. The Court generally accepted the proposition that the test for determining any causal relationship between the conduct on the one hand, and the admission(s) on the other, was not a stringent one, and did not require the identification of a single reason, a single event or incident, or a single instance of conduct, which had provoked it; R v Zhang [2000] NSWSC 1099 at [44] per Simpson J (as her Honour then was), cited with approval in Higgins v R [2007] NSWCCA 56 at [26] per Hoeben J (as his Honour then was); see also R v JF (supra) at [32].

  3. In my view, it is particularly significant that the accused told Mr McDonald and A that he did not feel safe talking about these matters in Egypt due to fear of repercussions, but would be happy to talk about them further in Australia. The obvious inference to be drawn from that statement is that the conduct to which the accused had been subject necessarily influenced everything that he was telling Mr McDonald and A at this time.

  4. Given that, I cannot be satisfied that the making of the admissions was not influenced by the conduct which the accused described. In light of the provisions of s 84 of the EA, the evidence should be excluded.

The objection to evidence obtained from electronic devices linked to the accused

The evidence

  1. Material was found on mobile telephones and computers which, on the Crown case, were connected to, and used by the accused. The Crown relies upon this material as being relevant to the accused’s intention, and his ideology. On the Crown case, the evidence establishes that:

  1. on 14 December 2015, WE conducted a number of Google searches on a mobile telephone relating to “ISIS Sinai”. Over the following days he accessed a number of websites relating to ISIS, Islamic State and Jihad. This was shortly before he was arrested in the Sinai region;

  2. on 17 August 2016 WE viewed You Tube footage about the history of Caliphs of Islam, including Bakr al-Baghdadi, the self-proclaimed Caliph of Islamic State;

  3. on 2 September 2016 WE viewed You Tube footage of “Soldier of Allah” entitled “The day of Judgment: The Minor Signs”;

  4. on 8 October 2016 WE took a screen shot of a person bearing the profile name “Abu Ousayd al-islami-WH”, which referred to that person’s cousin having become a “Murtad Kaffir” for becoming a policeman. It stated further:

“May Allah guide you back to Islam or allow you to die on this Kufr …”;

  1. on 8 October 2016 WE saved an image sent to him by the accused HG which included the words:

“THUS IF ANYONE COMMITS AGGRESSION AGAINST YOU. ATTACK HIM JUST AS HE HAS ATTACKED YOU”;

  1. on 9 October 2016 WE viewed You Tube footage on his mobile phone entitled:

“Can we listen to Anwar Awlaki and take knowledge from him? – Shaykh Abu Usamah Al-Thahabi”.

  1. I stress that this is a sample of the material only.

Submissions of the accused

  1. Counsel for the accused submitted firstly, that in relation to the entirety of the material located across the three devices the evidence was not relevant to prove the state of mind of the accused at the time of the commission of the offence. It was submitted that the material in question was effectively obtained and accessed a considerable time prior to October 2016, and that in these circumstances there was an available inference that none of the material had ever been viewed by the accused at or about the time of the commission of the offence. The essence of the submission advanced on behalf of the accused was that the evidence was “lacking in the continuity” which was required in order to make it relevant.

  2. Counsel further submitted that the circumstances surrounding the seizure of one of the devices on which material was found were such that there was an available inference that a person other than the accused had used that phone at material times.

Submissions of the Crown

  1. The Crown submitted that the evidence was relevant because it established a significant and continuing interest on the part of the accused in what was described as extremist militant Islam. The Crown submitted that in these circumstances, the evidence was capable of rationally affecting the jury’s assessment of the fact that WE engaged in the events of 12 October 2016 with the intention of advancing the political, religious or ideological cause of militant extremist Islam.

  2. The Crown submitted that the probative value of the evidence was high, and that it was not unfairly prejudicial. The Crown submitted, in particular, that there was no danger that the jury might use the evidence for some improper purpose or engage in an improper line of reasoning.

Consideration

  1. In my view, the evidence is clearly relevant and admissible as going to the accused’s extremist ideology. There is sufficient evidence to link the accused to each of the devices on which such material was found. To the extent that counsel for the accused submitted that there was no evidence that any of the material had been viewed by the accused, such a proposition is answered by the judgment of the Court of Criminal Appeal in Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206 at [442] where it was said:

… It is, in our opinion, not an unreasonable assumption that, when large quantities of video material of a particular kind are found in the possession of a person, that that person has viewed at least some of it, or intends to do so. It is a fair assumption that it is in possession for a purpose, and that purpose includes viewing or passing the material on to some other person. Further, the possession of large quantities of material of a particular kind is indicative of an interest in material of that kind, whether or not it has actually been viewed. It therefore was relevant to the state of mind of each of the accused, all of whom were shown to have been in possession of material of this kind…

  1. For these reasons the evidence is admissible.

THE APPLICATION BY THE ACCUSED WE FOR A SEPARATE TRIAL

  1. At the conclusion of my determination of the various pre-trial issues outlined above, counsel for the accused WE made an application for a trial separate from HG. No similar application was brought on behalf of HG. WE’s application was opposed by the Crown.

Submissions of the accused

  1. Counsel for the accused advanced two fundamental submissions in support of the application.

  2. Firstly, he submitted that the evidence which was relied up by the Crown to prove the accused’s ideology state of mind was significantly weaker than that relied upon to prove the ideology and state of mind of the accused HG.

  3. Secondly, he submitted that the evidence sought to be relied upon by the Crown to prove the state of mind of HG was highly prejudicial to WE, to the point that there was a real risk that the admission of that evidence would make the Crown case against WE immeasurably and impermissibly stronger.

  4. In developing these submissions, counsel for the accused submitted that there was a large body of evidence which was relevant to proving the intention and state of mind of HG which was inadmissible against WE. He submitted that this included evidence of:

  1. statements made by HG at the time of his arrest;

  2. matters surrounding HG’s non-attendance at school;

  3. HG’s attendance at a rally in 2012 where he was photographed holding a sign bearing the words “Behead those who insult the Prophet”;

  1. the fact that HG was under surveillance as at 6 October 2016;

  2. material found on HG’s electronic devices; and

  3. handwritten notes found in HG’s cell which, on the Crown case, expressed extremist views.

  1. Counsel submitted that in these circumstances the evidence to be relied upon by the Crown to prove HG’s state of mind was significantly more probative, significantly more extreme, and significantly stronger than that relied upon by the Crown against WE. He submitted that in these circumstances, it would be impossible for a jury to “compartmentalise” the evidence against each accused when considering the inferences that could be drawn from it. It was further submitted that it would be impossible for a jury to exclude from their thinking what was submitted to be the “cumulative effect” of the evidence against HG when considering the relevance of individual pieces of evidence, and its cumulative effect, in the case against WE.

  2. Counsel submitted that in these circumstances, there was a real danger that the jury would, consciously or unconsciously, be influenced by such cumulative effect. It was submitted that the case against WE was much weaker than that against HG, but would be made immeasurably stronger if the two accused were tried together and the jury heard the evidence which was admissible only against HG. It was submitted that in these circumstances, and in the interests of justice, the trials should be separated.

Submissions of the Crown

  1. The Crown submitted that application of the general principles pertaining to an application for a separate trial supported a conclusion that the accused should be tried jointly. Whilst acknowledging that there was some evidence which was admissible only against HG, the Crown submitted that such evidence was confined, and able to be clearly identified and compartmentalised. The Crown further submitted that any issues could be overcome, firstly by reminding the jury as particular evidence was tendered that it was only to be considered in the case against HG and secondly, by directions to a similar effect in my final summing-up.

Consideration

  1. Section 21 of the Criminal Procedure Act 1986 (NSW) (“the CPA”) is in the following terms:

21 Orders for amendment of indictment, separate trial and postponement of trial

(1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case.

(2) If of the opinion:

(a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or

(b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment.

(3) If of the opinion that the postponement of an accused person's trial is expedient as a consequence of it having amended an indictment or ordered a separate trial of a count, the court may make such order as appears necessary.

(4) An order under this section may be made either before trial or at any stage during the trial.

(5) The following provisions apply if an order is made under this section for a separate trial or for the postponement of a trial:

(a) if the order is made during the trial, the court may order that the jury be discharged from giving a verdict:

(i) on the count or counts in respect of which the trial is postponed, or

(ii) on the indictment, as the case may be,

(b) the procedure on the separate trial of a count, and the procedure on the postponed trial, are to be the same in all respects (if the jury has been discharged) as if the trial had not commenced,

(c) subject to the Bail Act 2013 , the court may commit the accused person to a correctional centre.

(6) Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes.

  1. In R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965, I summarised (commencing at [61]) the general principles which govern the discretion to make an order for separate trials:

[61] Firstly, as a general proposition, crimes which are alleged to have been committed jointly should be prosecuted in a joint trial: R v Assim (1966) 2QB 249 at 261 per Sachs LJ; R v Oliver (1984) 57 ALR 543 at 547 per Priestley JA (Cantor and Roden JJ agreeing); Webb and Hay v R [1984] HCA 30; (1994) 181 CLR 41, cited in R v Kearnes [2013] NSWSC 1139 at [28]. In Webb and Hay (supra) Toohey J (with whom Mason CJ and McHugh J agreed) explained the matter in this way (at 88-89):

“King CJ dealt with this ground by pointing out that there are "strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. That is particularly so where each seeks to cast the blame on the other (R v Webb and Hay (1992) 59 SASR at 585). What King CJ referred to as "strong reasons of principle and policy" were discussed by his Honour in R v Collie (1991) 56 SASR 302 at 307-311. I respectfully agree with that discussion which emphasises that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others (R v Demirok (1976) VR 244 at 254). There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused (R v Harbach (1973) 6 SASR 427 at 585.)”

[62] In R v Fernando & Anor [1999] NSWCCA 66 the Court (Newman, Studdert and James JJ), having discussed a number of authorities, observed (at [212]) that in determining whether a separate trial should be granted the Court must carry out a balancing process between the community interest and the question of undue prejudice to an accused (see also Amos v R [2014] NSWCCA 302 at [15] per Leeming JA, Adams and Bellew JJ agreeing). Needless to say, an exception to the general rule arises where there is a real risk of positive injustice to an accused. The existence of such a risk was described by King CJ in Collie (supra) as “the critical question” (at 310).

[63] Secondly, the mere existence of “cut throat” defences will not, of itself, support an order for a separate trial: R v Ignjatic (1993) 68 A Crim R 333 at 339 per Hunt CJ at CL (Finlay and Levine JJ agreeing); Ali v R [2005] HCA 8; (2005) 214 ALR 1 at [58];12 per Heydon and Callinan JJ. On the contrary, the strong reasons for a joint trial referred to in [61] above may be further strengthened where each accused deploys a “cut throat” defence: Webb and Hay at 88-89; R v Bedford [2011] QCA 43 at [104] cited in Destanovic v R [2015] VSCA 113 at [55].

[64] Thirdly, it is contrary to the interests of justice that there be inconsistent verdicts. Those interests generally require that where the accounts of accused persons differ, such differences should be resolved by the same jury at the same trial. Consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others: R v Demirok [1976] VR 244 at 254 per the Court (Young CJ, Lush and Crockett JJ); Webb and Hay at 89 per Toohey J. It is noted that an application for special leave to appeal against the decision of the Court in Demirok (supra) was refused: R v Demirok (1976) 8 ALR 452.

[65] Fourthly, the risk of inconsistent verdicts is particularly significant where each accused seeks to blame the other: R v Swan [2013] QCA 217 at [39] per Holmes JA (Applegarth and Jackson JJ agreeing).

[66] Fifthly, it is in the interests of justice that the whole picture is presented to the members of the jury, and that they see “the person on whom the blame is sought to be cast, as well as the person seeking to cast it”: Collie at 308 per King CJ. A joint trial will therefore give the jury “the means of obtaining a conspectus of the respective roles of each of (the accused) in the crimes with which they (are) charged”: Ali (supra) per Heydon and Callinan JJ at [58];12.

[67] Sixthly, questions of cost and inconvenience are not irrelevant in determining whether separate trials ought be ordered: R v Oliver (1984) 57 ALR 543 at 547 per Priestley JA (Cantor and Roden JJ agreeing); R v Middis NSWSC 27 March 1991, unreported per Hunt CJ at CL.

[68] Finally, it must be recognised that some prejudice to one or other accused is inevitable in any joint trial. That is a factor which must be taken into account in striking the necessary balance: R v Dellapatrona; R v Duffield (1993) 31 NSWLR 123 at 133 per the Court. In that regard, the common law proceeds on the assumption that the jury will obey any direction which is given by a trial judge: Kearnes (supra) at [40], citing Gilbert v R [2000] HCA 15; (2000) 201 CLR 414 at [13] per Gleeson CJ and at [31] per McHugh J; see also Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470 at 153 per Barr J (Spigelman CJ and Price J agreeing) citing R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 603 (per Mason CJ and Toohey J).

  1. Bearing in mind those principles the following observations may be made in respect of the present application.

  2. Firstly, and for the reasons that I have already expressed, I have excluded all but a very small portion of the evidence of statements made by the accused HG at the time of his arrest.

  3. Secondly, whilst there will be evidence regarding HG’s behaviour at school which the Crown will lead as being relevant to his ideology, that evidence is limited, and easily identified. In any event, similar evidence is sought to be tendered against WE.

  4. Thirdly, evidence of HG’s attendance at the rally in 2012 is, as I understand it, confined to a single photograph.

  5. Fourthly, electronic material upon which the Crown will rely is not limited to its case against HG. There is, as I have already outlined, a considerable body of similar evidence to be relied upon by the Crown against WE which, for the reasons I have stated, is admissible against him.

  6. Fifthly, in terms of the handwritten notes found in HG’s cell, two observations may be made. Firstly, not all of the notes expressed extremist views. Secondly, that evidence is completely confined and obviously amenable to a clear direction to the jury that it is not to be considered in the case against WE.

  7. As I have previously noted, as a general proposition a crime which is alleged to have been committed jointly should be prosecuted in a joint trial. Strong reasons of principle and policy point to that conclusion.

  8. Whilst an exception to that general rule arises in circumstances where there is a real risk of positive injustice to an accused, I am not satisfied that any real risk exists in the present case. Whilst there is obviously evidence which is admissible only against HG, that evidence is, as I have pointed out, capable of clear definition, and is obviously amenable to a direction being given to the jury that it can only be taken into account in its consideration of the Crown case against that particular accused. This is not a case, in my view, where the evidence which is admissible against WE is significantly different to, and or weaker than, that which is admissible against HG.

  9. For all of these reasons, the application for a separate trial should be refused.

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Decision last updated: 08 April 2020

Most Recent Citation
Cases Citing This Decision

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R v WE (No.4) [2019] NSWSC 893
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30

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Habib v Nationwide News Pty Ltd [2010] NSWCA 34
Habib v Nationwide News Pty Ltd [2010] NSWCA 34
Habib v Nationwide News Pty Ltd [2010] NSWCA 34