R v Karabegovic (Ruling No. 3)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CI 2013 0066

THE QUEEN

ADNAN KARABEGOVIC

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JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 - 21, 26, 27 OCTOBER 2015
DATE OF RULING:	17 NOVEMBER 2015 (Revised 18 November 2015)
CASE MAY BE CITED AS:	R v KARABEGOVIC (RULING No. 3)
MEDIUM NEUTRAL CITATION:	[2015] VSC 641

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CRIMINAL LAW – Admissibility of evidence – Terrorism offence - Evidence of state of mind - Whether evidence relevant – Circumstantial case - Whether evidence tendered for context, motive or tendency purpose – Whether evidence of a state of mind or a tendency to have a state of mind – Requirement of continuity or near contemporaneity - Difference between facts to be proved by inferences drawn from circumstantial evidence and facts to be proved by tendency reasoning – Whether direction about use of other misconduct evidence will be sufficient – Assessment of probative value and prejudice to accused – ss 55, 56, 95, 97, 101, 137 Evidence Act 1995 (Vic), ss 26, 27 Jury Directions Act2015 (Vic) ss 101.1, 101.4 Commonwealth Criminal Code.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J Rapke QC with Mr D Gurvich	Solicitor to the Commonwealth Director of Public Prosecutions
For the Accused	Mr M O‘Connell SC with Dr G Boas	Stary, Norton, Halphen Pty Ltd

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Issues.................................................................................................................................................... 4

Relevant legislation........................................................................................................................... 6

Accused‘s general submissions....................................................................................................... 9

Crown‘s general submissions........................................................................................................ 14

The challenged evidence................................................................................................................ 20

Item 52 - Accused in possession of a USB which contained articles in relation to manufacturing weapons, tear gas, knock out drops, a silencer together and video files containing extremist material. (Categories a & e).............................................................................................. 21
Items 1 to 3 – Hanging the banners, (category b)................................................................... 22
Item 4 – Conversation in car with Rasooli, (category c(i)).................................................... 25
Item 5............................................................................................................................................. 27
Item 6 - Accused discusses the Mujahedeen, a Sheikh and preparing (category c(i))...... 27
Item 7 - Accused discusses the Mujahedeen, Al Qaeda and the ‘unjust media website‘(category c(i) & (f))......................................................................................................................................... 28
Items 8 & 9: 8 - Accused discusses Muslims fighting Overseas, (category c(ii)) 9 - Accused discusses robbing lotto winners, taking hostages and robbing an ATM (category c(iii))........ 29
Item 10 - Accused discusses not relying on anyone, doing a robbery and booty and plunder not being for personal use (category c(iii))..................................................................................... 30
Item 11 - Accused discusses getting searched when trying to enter a foreign country, fighting overseas and reading Inspire magazine ((category c(ii) & (d))................................................... 30
Item 12 - Accused discusses not dying a martyr if you do a robbery for personal benefit and doing it as a group to destroy the Kuffar (category c(i) & (iii))................................................. 32
Item 13 - Accused discusses committing a robbery for the benefit of the Mujahedeen (category c(iii))............................................................................................................................................... 33
Item 14 - Accused discusses robbing an ATM an being Staunch (category c(iii))............. 33
Item 15 - Accused discusses an armed robbery, preparing for the operation and laundering the proceeds (category c(iii)).................................................................................................. 33
Item 16 - Accused discusses an armed robbery, preparing for the operation and laundering the proceeds (category c(iii)).................................................................................................. 34
Item 17 - Accused discusses robbing an ATM, having a shootout with police and dying a martyr (category c(i) & (iii))........................................................................................................... 35
Item 18 - Accused discusses buying firearms and setting up a training base in Bosnia (category c(ii) & (iii))....................................................................................................................................... 35
Item 19 - Accused discusses the need for action and the prospect of going to jail (category c(i)).      36
Items 20 & 21 - Accused discusses the atheist convention protest (category c(iv)).......... 37
Item 22 - Accused discusses the atheist convention protest and the Mujahedeen (category c(iv)).     37
Item 23 - Accused discusses his brother travelling to Bosnia and trying for 6 months to buy a gun (category c(ii))..................................................................................................................... 38
Item 24 - Accused discusses Hindu temples, researching a plan of the temple on the internet and smashing their idols (category c(iv)).............................................................................. 38
Item 25 - Accused discusses defending Islam and the duties of jihad (category c(i))...... 39
Item 27 - Accused accessed the website ‘theunjustmedia.com‘(category f)....................... 40
Item 28 - Accused discusses carrying out surveillance, matching a few places recruiting somebody to the group and modifying items to create weapons that can do massive damage (category c(iv), (v) & d)................................................................................................................................. 41
Item 29 - Accused discusses a function in relation to the anniversary of the state of Israel, doing something at a protest that was organised, Molotov cocktails and smashing into a Cambodian temple (category c(iv))...................................................................................................... 44
Item 30 - Accused discusses fighting in the Kuffar and planning (category c(i)).............. 45
Items 31 & 32 - Accused accessed the website ‘theunjustmedia.com ‘(category f)........... 46
Item 33 - Accused discusses an article he read in Inspire magazine and videos produced by al Qaeda in the Arabian Peninsula (category d)............................................................................ 46
Items 34 & 35 - Accused accessed the website ‘theunjustmedia.com ‘(category f)........... 47
Item 36 - Accused discusses polytheism and smashing down a Mosque that had Kuffar in it and smashing churches (category c(iv))................................................................................. 47
Item 37 - Accused opened an electronic version of Inspire edition 8 on his laptop on 16 July           47
Item 38 - Accused discusses the Mujahedeen and taking down the Kuffar (category c(i)). 48
Items 37, 39 – 41, 51 & 53: Item 51 - Accused in possession of a USB which contained Inspire editions 1,2,5 and 6. - Item 53 - Accused in possession of an electronic copy of Inspire edition 8 –, Item 39 - Accused attempted to open an electronic version of Inspire edition 5 on his laptop, Item 40 - Accused opens Inspire edition 6 on his laptop, Item 41 - Accused opens Inspire edition 5 on his laptop (category d)............................................................................................................ 48
Item 42 - Accused discusses deleting material from a computer and removing his lap top from his house (category c(vi))........................................................................................................ 51
Item 43 - Accused discusses deleting material from a computer and removing his lap top from the house (category c(vi))........................................................................................................ 52
Item 44 - accused discusses hiding a USB in his car (category c(vi)).................................. 53
Item 45 - Accused discusses weapons (category c(iii))......................................................... 53
Item 46 - Accused discusses deleting Inspire magazine from his brother‘s computer and the availability of Inspire and other material on the internet (category c(vi))................ 53
Item 47 - Accused discusses Buddhist temples and someone who wants to rip them up and take their heads off (category c(iv)).................................................................................................. 53
Item 48 - Accused discusses Muslims fighting overseas (category c(ii))........................... 54
Items 49 & 50: 49 - the accused accessed the website Tawheed.net 50 - Accused sends an SMS in relation to accessing Inspire on the tawhed.net website (category f)........................ 55

Applicable principles...................................................................................................................... 55

Analysis.............................................................................................................................................. 72

Category a – Other extremist material including articles on the USB................................ 73
Category b – The banners.......................................................................................................... 75
Category c – surveillance conversations................................................................................. 76
Discussions about Islam, jihad, war, martyrdom or going to jail.............................. 76
Discussions about fighting overseas or going to Bosnia............................................. 77
Discussions about other possible activities unrelated to the particularised terrorist act 77
Discussions about other religions and atheism............................................................ 79
Discussions about surveillance....................................................................................... 80
Discussions about deleting or hiding material............................................................. 81

Category d - Possession of other editions of Inspire magazine........................................... 81
Category e – two video files...................................................................................................... 82
Category f – the websites........................................................................................................... 83

Conclusion......................................................................................................................................... 84

HIS HONOUR:

Introduction

The accused is charged with one count of possession of a thing connected with assistance in a terrorist act, knowing of the connection contrary to s 101.4 of the Commonwealth Criminal Code. The particulars of the indictment are that between 18 May 2012 and 12 September 2012:

(a) The accused possessed a thing, being ‘Inspire‘ magazine, Issue 9, edition Winter 1433, 2012.

(b) The accused did so intentionally.

(c) Inspire No. 9 is connected with assistance in a terrorist act.

(d) The terrorist act was an action or threat of action involving the making of an explosive or incendiary device to start a fire (the terrorist act).

(e) The terrorist act was to be done or threatened:

(i) with the intention of advancing a political, religious or ideological cause, namely the advancement of Islam, and

(ii) with the intention of either:

(aa) coercing, or influencing by intimidation, the Commonwealth Government or a foreign government; or

(bb) intimidating the public or a section of the public.

(f) The terrorist act, if carried out, would cause serious consequences.[1]

(g) The accused knew of the connection between Inspire No. 9 and the terrorist act.

(h) If the accused adduces or points to evidence that suggests a reasonable possibility that the possession of Inspire No. 9 was not intended to facilitate assistance in the terrorist act, the prosecution must negative that defence beyond reasonable doubt.

[1]The consequences particularised, which are drawn from the definition of ‘terrorist act’ in s 100.1 of the Code are (i) cause serious harm that is physical harm to a person, or (ii) cause serious damage to property, or (iii) cause a person’s death, or (iv) endanger a person’s life, other than the person taking the action, or (v) create a serious risk to the health or safety of the public or a section of the public.

The Crown will contend that the accused knew that Inspire No. 9 contained information that would assist in the activity of preparing or contemplating preparing for the proposed or contemplated terrorist act and the accused possessed an electronic copy of Inspire No. 9, knowing that it was connected with assistance in that terrorist act. In its Summary of Prosecution Opening, the Crown states that will lead evidence that the accused had a number of conversations with others, accessed certain websites and did certain acts, all of which were said and done to assist in the activity of preparing or contemplating preparing for a proposed or contemplated terrorist act.

The Crown will contend that a conversation between the accused and his brother Nihad Karabegovic on 18 May 2012 revealed that the accused was contemplating making an incendiary device which could start a bushfire in Australia. During that conversation the accused asked Nihad whether Inspire No. 9 included information about how to make petrol bombs for bush fires in Australia and the accused later indicated his familiarity with the contents of Inspire No. 9.

Between 24 May and 30 August 2012 the accused accessed websites which contained links to Inspire No. 9. On 1 June 2012 the accused revealed he was familiar with contents of Inspire 9 in a conversation with others. On 11 July 2012, Inspire No. 9 was transferred from the Nihad‘s laptop to the accused‘s laptop via a USB drive and an electronic copy of Inspire No. 9 was last opened on the accused‘s laptop on 16 July 2012.

The Crown, as a precaution, served a Notice, dated 12 December 2014, of intention to adduce tendency evidence. The Crown gave notice of its intention to adduce tendency evidence relating to:

(a) whether the accused had the state of mind of intending to possess Inspire no. 9;

(b) the accused‘s knowledge that Inspire No. 9 was connected with assistance in the terrorist act particularised; and,

(c) whether Inspire No. 9 was being used, or was intended to be used, in the activity of assisting in the terrorist act.

Attached as Table A to that Notice are particulars of that evidence. The parties agreed that table A is a useful summary of the evidence in issue on this application.

The Crown identifies six categories of evidence within the table A evidence being:

(a) Possession of Inspire Magazine editions 1, 2, 5, and 5 (on the USB found in the accused‘s possession by police) and editions 5, 6, and 8 (found on the accused‘s laptop).

(b) Possession of the USB that also contained various electronic document files that contained information on firearms, a silencer, grenades, tear gas, and knock-out drops).

(c) Files on the accused‘s laptop; ‘6 Urdu Nasheed…‘ and ‘Syria Jihad Nasheed…‘.

(d) Hanging two banners in public places.

(e) The accused accessing the ‘unjustmedia.com‘ and ‘tawhed.net‘ websites.

(f) 37 telephone intercept and listening device conversations in which the accused participated.

The table identifies 53 separate allegations of conduct of the accused on which it intends to rely at trial, but only if the court rules that the evidence is admissible other than as tendency evidence. The Crown has determined to not lead evidence about the accused‘s alleged participation in damaging a Cambodian Buddhist temple, which removes item 26 from consideration, leaving 52 items of evidence.

The Crown‘s position is that all of the evidence identified in the table is more properly to be regarded as context, background, or relationship evidence relevant to the accused‘s state of mind, or relevant circumstantial evidence on which the Crown is entitled to rely, but on which it does not rely for any tendency reasoning. The Crown has made clear that should I rule that the purpose of any or all of the table A evidence is as tendency evidence and not as background and context evidence, then the Crown would not seek to lead it.

The accused objects that all of the table A evidence is not admissible. The accused objects that the evidence is not context evidence and is extraneous to the material relevant to the allegations put by the Crown in the indictment. The Crown‘s case is confined to a single charge. There is not, as in other cases, a broad ranging conspiracy alleged. The accused contends that the table A evidence cannot rationally affect the probability of the existence of the facts in issue. Further it is not context evidence. Alternatively, if any item of evidence does bear on the probability of the existence of a fact in issue, it only does so in a manner that involves tendency reasoning. The Crown cannot show how it proposes to use the evidence other than for a tendency purpose, or that such other purpose would not be swamped by the prospect of its use for the tendency purpose. The evidence that is arguably relevant should be excluded by the exercise of one or other of the powers available to the court in either s.135 or 137 of the Evidence Act.

It is convenient to identify the issues, the relevant legislation, then begin with the general contentions put by the parties before identifying what each item of evidence in table A is and the particular submissions that were put about each item.

Issues

The Crown contends that the thing possessed is Inspire No.9 and the critical article in terms of the indictment and the proofs, is the article relating to igniting fire bombs, an article which commences by referring to ‘the catastrophic bushfires that raged across the south of Australia in the year 2002’. That particular edition of Inspire was originally saved to the accused‘s brother‘s computer on 17 May 2012. In a conversation, the admissibility of which is unchallenged, on 18 May the accused speaks to his brother about that issue and asks his brother if the magazine contained information on how to make petrol bombs for bushfires in Australia, and the accused indicated that he‘d need to read it for himself. They then continue to converse about how to make a bomb that would ignite a bushfire. Other evidence is capable of being used by a jury to conclude that the accused was familiar with the contents of Inspire No. 9.

On 11 July 2012, the magazine was written to the hard drive of the accused‘s computer and five days later, on 16 July, it was opened on his computer. Between that date, 16 July and 12 September 2012, the magazine was deleted from the accused‘s computer.

The Crown accepts that it will need to establish that the accused intentionally possessed Inspire No. 9. The accused was asked numerous questions in his interview, and in substance, denied ever having discussed the contents of Inspire with any other person and claimed he deleted it from his computer as he thought it was not appropriate to have it. The accused suggested that he acquired Inspire magazines as a result of them being on his brother‘s USB, or in other circumstances where he was unaware of the true nature of their contents. The Crown contends that a jury will ultimately have to consider what the accused said about his possession to the police, and those statements should properly be assessed against the background of his interest in the magazine, interest in the content of the magazine, discussion about the magazine, and discussion about fire bombs. These are discussions from which a jury will be entitled to infer that the accused had a familiarity with the contents of the magazine.

The accused submitted that the facts in issue, broadly stated, are;

(a) that he was in possession of Inspire No. 9;

(b) that he proposed or contemplated a terrorist act that involved making an incendiary device to start a bushfire in Australia;

(c) that activity, by way of assistance or help, was underway with respect to that proposed contemplated terrorist act; and,

(d) that Inspire No. 9 was used or intended to be used in connection with that activity.

Relevant legislation

I will now set out relevant terms of the legislation that will be referred to in these reasons.

The Commonwealth Criminal Code in s 100.1 defines a terrorist act as follows:

‘terrorist act‘ means an action or threat of action where:
(a)the action falls within subsection (2) and does not fall within subsection (3); and
(b)the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and
(c)the action is done or the threat is made with the intention of:
(i)coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
(ii) intimidating the public or a section of the public.

and the section that creates the charged offence, s 101.4 reads:
101.4 Possessing things connected with terrorist acts
(1)A person commits an offence if:
(a)the person possesses a thing; and
(b)the thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and
(c)the person mentioned in paragraph (a) knows of the connection described in paragraph (b).

…
(5)Subsections (1) and (2) do not apply if the possession of the thing was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act.

Sections 55, 95, 97, 101 and 137 Evidence Act are 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.

PART 3.6—TENDENCY AND COINCIDENCE
94Application
...
(3)This Part does not apply to evidence of—
(a)the character, reputation or conduct of a person; or
(b)a tendency that a person has or had—

if that character, reputation, conduct or tendency is a fact in issue.

95Use of evidence for other purposes
(1)Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.
(2)Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose.

97The tendency rule
(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person‘s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party‘s intention to adduce the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

101Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
(2)Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.

137Exclusion 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 accused.

Relevantly, the Jury Directions Act 2015 provides:

26       Definitions
In this Division—
‘coincidence evidence‘ has the same meaning as in the Evidence Act 2008;
‘other misconduct evidence’ means—
(a)       coincidence evidence; or
(b)       tendency evidence; or
(c)evidence of other discreditable acts and omissions of an accused that are not directly relevant to a fact in issue; or
(d)evidence that is adduced to assist the jury to understand the context in which the offence charged or any alternative offence is alleged to have been committed;

‘tendency evidence‘ has the same meaning as in the Evidence Act 2008.
27 Direction on other misconduct evidence adduced by the prosecution
(1)Defence counsel may request under section 12 that the trial judge direct the jury on other misconduct evidence adduced by the prosecution.
(2)In giving a direction referred to in subsection (1), the trial judge must—
(a)identify how the other misconduct evidence is relevant (whether directly or indirectly) to the existence of a fact in issue in the trial and direct the jury not to use the evidence for any other purpose; and
(b)if the evidence forms only part of the prosecution case against the accused, inform the jury of that fact; and
(c)direct the jury that it must not decide the case based on prejudice arising from what the jury has heard about the accused.

Accused‘s general submissions

When assessing how the table A evidence bears on the probability of the existence of the facts in issue, care must be exercised with the application of the authorities, in particular Elomar & Ors v R,[2] because the charged act, as particularised, is a confined allegation and much that might be thought to be admissible in proof of the nature and scope of a conspiracy or in proof of a person‘s participation in a conspiracy is not relevant in the context of this more confined allegation.
[2]Elomar & Ors v R [2014] NSWCCA 303.

Tendency evidence is evidence of character, reputation or conduct and much of the table A evidence is of that nature. The accused submitted that when the Crown clearly articulates how each item of evidence is relevant in a non‑tendency sense or does not involve tendency reasoning, it must demonstrate that there is no danger of unfair prejudice that the jury would misuse the evidence in a tendency way. Both s 95 of the Evidence Act and s 27 of the Jury Directions Act 2015 mandate that this distinction between tendency and non‑tendency purposes be drawn. The defence will seek that the jury be directed on other misconduct evidence adduced by the Crown.

The accused submitted that the tendency reasoning that arises from the table A evidence is so strong that in many aspects a direction that identified the permissible non tendency purpose for the jury, given the nature of the evidence, would be ineffective in achieving the objective of s 27(2) of the Jury Directions Act. When, on analysis of a piece of evidence, the Crown identifies a non‑tendency purpose for that evidence, but eschews an identified tendency purpose and the defence objects to tendency reasoning being utilised by the jury, the risk that the evidence will be used by the jury in that impermissible way specifically creates the danger of unfair prejudice that will outweigh the probative value of the evidence. The greater the difficulty in demonstrating that the evidence is probative in a non‑tendency way, the greater the likelihood the jury will use it as tendency evidence. That risk makes a strong case for exclusion of the evidence by operation of s 137 of the Evidence Act.

The court is not bound to accept the Crown‘s characterisation of the purpose of the tender of the evidence and ought to conclude that its purpose is for tendency reasoning and the evidence is inadmissible by force of s 97, as the Crown no longer presses, in accordance with its notice, for admission of the table A evidence as tendency evidence. The threshold requirements for the admissibility of tendency evidence - that it have significant probative value and that its probative value substantially outweigh any prejudice that might flow - ensure that such evidence does not intrude into the fairness of the accused‘s trial. The accused submitted that fine distinctions about the purpose of evidence that effectively avoid those safeguards endanger the fairness of the trial, and a tendency reasoning purpose remains a relevant and important consideration when assessing whether to admit the evidence. The Crown cannot simply assert that evidence has a non‑tendency purpose, for example, as context evidence or as proof of state of mind. The accused submitted that the Crown must demonstrate that there is no danger of unfair prejudice that the jury would misuse the evidence in a tendency way.

The tendency rule does not prohibit evidence tendered to prove that a person in fact acted in a particular way, or in fact had a particular state of mind. The Crown submitted that the table A evidence is of that character. The accused submitted that the distinction drawn in Elomar[3] between the fact of having a state of mind, the belief or the attitude, and the tendency to have it was very fine and an unreasonable distinction. In that case, the court distinguishes, in respect of evidence of the attendance of an accused Moustafa Cheikho at a training camp in Pakistan, between a tendency on the part of Cheikho to support violent Islamic Jihad and that Cheikho in fact supported violent Islamic Jihad. This distinction - between the fact of support for violent Islamic Jihad as opposed having a tendency to that state of mind at a prior time - is asserted by the Crown when it contends, for example, that parts of the table A evidence are primary or direct evidence of the fact that the accused had an intention to advance the cause of Islam and no tendency purpose is asserted.
[3]Ibid, [367]

The accused submitted that it can be inferred that a state of mind identified as existing at an earlier time was operating at the time of the charged event when the earlier state of mind is proximate to the charged event, by reason of contemporaneity. That is not tendency reasoning. Thus a state of mind indicated during the day may inferentially be the accused’s state of mind when he offends that night. Absent that quality of near contemporaneity, the accused submitted that resort to prior conduct to show that the accused had a tendency to have that particular state of mind is needed. This inference should not be drawn, particularly in respect of states of mind such as belief in a deity or support for a political philosophy that encompass very complex sets of ideas, beliefs and values, about which a person‘s philosophy or a person‘s attitude or belief will moderate or change even in minor ways that may be significant when the question is one of attaching criminal liability to a person who has that state of mind.

The accused identified the flaw in the court‘s reasoning in Elomar to be that it is not sufficient to identify an attitude, belief, philosophy susceptible to continuity and assume that that state of mind is static. The assumption is misplaced. A person‘s values and views are challenged in their daily lives and subject to modification. The inference is one for proof. What the prosecution must prove is the accused‘s state of mind at the time of the charged event. The Court of Appeal appears to accept[4] the contemporaneity qualifier but its reasoning fails to identify how an inference of continuity of state of mind between 2002 and 2004 could properly have been drawn by the trial judge. However, the court appears to reason to that conclusion without reference to the evidence at trial, despite continuity of state of mind between 2002 and 2004 being a matter for the prosecution to prove in order to establish the fact of the state of mind in 2004. Further, the Court of Appeal ‘hedged its bet‘ by concluding that the trial judge could have concluded the evidence was admissible under the tendency rule had he not determined that it was proof of the fact of a state of mind.
[4] Elomar & Ors v R [2014] NSWCCA 303, [368]

The accused submitted that, because of fairness considerations, it is preferable in the absence of continuity evidence to characterise the evidence as tendency evidence. That is so because the legislature has maintained, through the safeguards in the tendency rule,[5] the common law‘s high threshold before propensity reasoning is permitted because of its high order prejudicial capacity.[6] The accused submitted that the conversation with Nihad on 2 April 2012 demonstrated that the accused‘s attitudes to violent jihad had changed, in fact softened, following his marriage. Whether that occurred may be a jury question but the example was offered to demonstrate the flaw in the reasoning that a state of mind in January is a continuous static belief that may be imputed to the accused in May. In that sense the January evidence is not probative.
[5]Velkoski v The Queen [2014] VSCA 121 [164].
[6]Pfennig v The Queen (1995) 182 CLR 461, 482-3.

The accused submitted that evidence of an earlier state of mind in most instances is likely to be properly characterised as tendency evidence, and the distinction that was drawn in Elomar to the effect that it is evidence of the fact of the state of mind should be confined to exceptional cases where the prosecution establishes an inference of continuity that justifies the classification of the state of mind as a continuous static belief or attitude. That, the accused submitted, is not this case.

The accused submitted that context evidence, despite some suggestions to the contrary, is not tendency evidence.[7] The Crown does not adequately identify how the table A evidence is context evidence in the traditional sense of being evidence that is not admissible in proof of the charge but to help the jury understand the charged allegation.
[7]Velkoski v The Queen [2014] VSCA 121 citation, [127]

The accused submitted that reliance by the Crown on some conversations to demonstrate that the accused was a person who read Inspire magazine, that he had an interest in Inspire magazine, and was prepared to commend it to his brother was also primarily dependent on tendency reasoning and should be so characterised. It is not evidence that the accused read Inspire No.9. Being more general, the evidence is indicative of a tendency that demonstrates an interest in Inspire magazine. The accused submitted that the proper approach to this category of evidence was explained by Adjunct Professor Ogders[8] and he adopted a passage from the learned author‘s text in explanation of the submission.
[8]Stephen Ogders SC, Uniform Evidence Law, Online edition, [1.3.7320].

Odgers noted that in Leonard v The Queen,[9] when the question of whether evidence showing a sexual interest or ‘passion‘ for the complainant revealed a motive for the crime charged, or was properly analysed as tendency evidence arose, Hodgson JA stated that such evidence is not used as tendency evidence. It is rather evidence supporting an inference that the accused had motivation to act as charged and properly characterised as relationship evidence or motivation evidence. Here, the Crown calls such evidence context evidence and advances a similar contention. Ogders observes that the other members of the court, Grove and Adams JJ, did not feel it necessary to express a view on the correctness of this analysis and that other authority views evidence of a ‘guilty passion‘ for the complainant in a sexual assault prosecution as tendency evidence.[10] Hodgson JA accepted[11] that the theoretical difference between motive and tendency are likely to have little practical significance in a child sexual assault trial.
[9](2006) 164 A Crim R 374; [2006] NSWCCA 267 per Hodgson JA at [49] – [52]
[10]Citing R v AH (1997) 42 NSWLR 702; 98 A Crim R 71 at 708-709 (NSWLR) and R v Greenham [1999] NSWCCA 8 at [23].
[11]2006) 164 A Crim R 374; [2006] NSWCCA 267, [68].

Later, in ES v The Queen (No 1),[12] Hodgson JA (Whealy J and Buddin J agreeing) accepted that it is not practical to maintain this distinction between evidence of motive and evidence of a tendency to have a particular state of mind in the case of the sexual interest of an adult in a child and such evidence should be treated as tendency evidence. Hodgson JA left open the operation of the distinction in other contexts. Odgers suggested that the same approach should be adopted where reliance is placed on a person‘s ‘interest‘ in someone or something and it is this submission that the accused now adopts and advances.
[12][2010] NSWCCA 197, [39].

The accused submitted that I was bound to apply Velkoski v The Queen,[13] representing the law in this state, notwithstanding a controversy as to its correctness in a key respect which I will later analyse. The submission was that if the Crown will rely on evidence that manifests Jihadist interest, interest in Inspire magazine or interest in extremist ideas, then the principles in Velkoski should apply. There are examples of the accused making statements like ‘Bro, read Inspire magazine and you‘ll see how Jihadists get there‘. The accused is not now charged with offences under s 101.4 of the Criminal Code in respect of his possession of editions of the magazine other than No. 9. The accused contended that the use that the Crown was inviting for the evidence is that the accused is someone who read Inspire magazine, then commended it to others, and that therefore he is more likely to have possessed Inspire magazine and more likely to have read it. Velkoski requires that rank propensity reasoning needs to be avoided, and the requirements of s.97 and 101 need to be applied to the proposed evidence, because it is properly characterised as tendency evidence and subject to those requirements.
[13][2014] VSCA 121.

Crown‘s general submissions

By his objections, the accused posits an unreasonably restrictive view of the concept of relevance. A number of features of the proceeding need to be borne in mind in evaluating relevance. First, the charge created by s 101.4 of the Criminal Code is a most complex matter and it is simplistic to assert, without more, that a specific item of evidence does not go to the question of the probabilities of the existence of a fact in issue. Secondly, the Crown case is a circumstantial case and the court must examine the each individual piece of evidence against the background of the mosaic created by the evidence as a whole. The Crown will lead direct evidence, but it is likely to be subject to construction and interpretation. Conduct and conversations in the period May to September cannot be divorced from what happened before, or from the subsequent explanations of that conduct.

There is a mental component to the connection element of the charge. Proposing, contemplating and intending are all mental elements and proof is dependent on circumstantial evidence. The thought processes involved in contemplation may involve considering different options, different means, different targets. Intention to use a thing involves an intention to use it in the future. The connection element posits that the preparation for, or assistance in, can occur in the future. Thus any evidence that could rationally affect the assessment of the probability of any of these matters is relevant and admissible.

The Crown sets out to prove the motivation of the accused was to prepare or contemplate engaging in an act or act of terrorism by proving that he held extremist or fundamentalist Islamic beliefs and was committed to Jihad, which is a struggle or holy war in support of Islam against unbelievers. The principal way in which the Crown will seek to prove the accused’s state of mind is through his own statements in conversations recorded by surveillance devices. However, there is also the content of the Inspire magazines and some other material that might be characterised as instructional or extremist in its content.

Much of the table A material is evidence of motive, which can seldom on its own prove the charge. It‘s a species of circumstantial evidence and is admissible evidence. A motive to commit the crime charged is powerful circumstantial evidence in support of the Crown case.[14] It is strongly probative evidence. Absent evidence of motive a jury might not accept that an Australian citizen would possess Inspire No. 9 with the intention of using it to prepare for making an explosive or incendiary device to start a bushfire, However, knowledge of the accused‘s state of mind as evidenced by the table A evidence provides a powerful reason to reason that the accused‘s actions and intentions were as alleged in the charge.
[14]DPP (Cth) v Fattal [2013] VSCA 276, [43].

The accused mostly failed to identify the precise sense in which tendency reasoning was the purpose for the evidence. The submission in respect of the banner hanging incident exemplifies the issue. No tendency can be extracted from two incidents which occurred on the one day. The Crown submits this is context evidence, against which the whole conduct of the accused in the period alleged in the indictment is to be judged. The evidence is of conduct and statements by the accused relevant to the question of his state of mind, his beliefs, and it is relevant to issues in the trial, the elements of the offence as set out in the indictment.

The table A evidence shows the accused‘s political philosophy and his commitment to an extremist form of his religion, which matters are relevant to the nature of his possession. They are relevant not just to his actual possession in the sense of his knowledge of what he was possessing and that he possessed it, but also to the intention of his possession.

The accused‘s submissions blur the distinction between context evidence and tendency evidence, and overlook the fact that the relevance of evidence does not depend on its capacity by itself to prove anything. The assessment of the probabilities must be made in the context of other evidence either admitted at the time or subsequently to be adduced. The prosecution case is circumstantial and at trial the jury can decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference.[15]
[15] Chamberlain v. The Queen (No.2)(1984) 153 C.L.R. 521, 580.

Context evidence is admitted for at least two reasons, to give realistic context for facts which underpin the charge on the indictment to enable a proper evaluation of the evidence of both the Crown and the accused. The table A evidence adds context to the allegation that the accused possess the magazine. The fact that a man possessed a magazine on a particular day is uninformative. The jury is entitled to the context that the same man had possessed other magazines of the same type, was committed to an ideology of violence and extremism, had accessed Internet sites which had such material, had hung banners from public places expressing an anti‑western ideology and an ideology against the government of the country in which he lived, had supported Jihadist activity in discussion, and had considered how one could raise money by all sorts of means, some of them illegal, for the purpose of advancing his extremist ideology. With that context, a jury may properly reason that the possession of a magazine which might otherwise be explicable, or innocent was intentional and linked to his intention of advancing a religious cause, namely Islam.

The possession of the magazine did not occur in a vacuum and was part of a pattern of behaviour alleged by the Crown to establish that the accused knew the magazine was being used, or was intended to be used, for a contemplated terrorist act and the accused‘s knowledge that his possession of the magazine was in connection with assistance in the terrorist act particularised at the relevant time. The central context is the accused‘s state of mind about advancing the cause of Islam. The table A evidence is the key to an assessment of these issues and, as such, constitutes part of the essential background against which the evidence of the alleged charge necessarily falls to be evaluated.[16] Further, the evidence places the evidence of the charged conduct into a true and realistic context, in order to assist the jury to appreciate the full significance of what would otherwise appear to be an isolated act occurring without any apparent reason.[17] If the jury knows that the accused had a state of mind, namely adherence to a philosophy that advocated the use of violence to advance Islam, it is better able to judge whether it is likely that the accused‘s possession of a magazine that propounded the same cause was in circumstances in which he knew of the connection.
[16]B v The Queen [1992] HCA 68; (1992) 175 CLR 599, 610.
[17]R v Beserick (1993) 30 NSWLR 510, 602-603; 605.

On 24 January 2012, Inspire editions 1, 2, 5 and 6 were written to the USB found in the accused‘s pocket on 12 September. The accused opened issue 8 on his computer on 16 July, and issues 5 and 6 on his computer on 16 August. The evidence of the accused‘s possession of issues 1, 2 and 8 is not led to prove that he had a tendency to want to possess this type of material, or to prove that because he possessed these other issues of Inspire the jury should conclude that he was likely to have possessed No. 9. Its purpose is to prove that at the relevant time, as defined by the dates in the indictment, he had an interest in Jihadist terrorist material and that interest was bound up with a desire or an intention to advance Islam through coercion and intimidation. The Crown submits it is direct evidence of a state of mind alleged to exist at the time of his possession of Inspire No. 9. The evidence goes to the likelihood that when the accused discussed fire bombs and bushfires and economic damage with his brother, he had in contemplation a terrorist act, namely making an explosive or incendiary device to start a fire. The Crown submits that there is no syllogistic reasoning employed in this analysis. It is essential relevant background or context evidence which the jury can use to determine whether the accused‘s contemplations or proposals or intentions were serious.

Further, that pattern of behaviour is relevant to assessing the accused‘s explanation given to investigators in relation to those matters. Without the table A evidence, the jury will simply have no way of evaluating the truthfulness, reliability or accuracy of the accused‘s contentions in relation to his lack of interest in Inspire No. 9 or the almost accidental way in which he says he came to be in possession of it.

Whatever be the reconciliation of Velkoski and Elomar, in terms of the defence submission that Elomar was wrongly decided on the issue of continuous static belief, that is not this case, because the table A evidence is evidence that is sufficiently proximate to the relevant period. Further, the evidence provides a continuity of conversations and a continuity of conduct ranging from 27 January 2012 through to September 2012 against which the jury can assess the views, beliefs and commitments of the accused. The jury will be able to reason, for example, that the evidence of the accused‘s state of mind in January 2012 drawn from the banner incidents is relevant evidence that the accused did in fact oppose the policies of the Commonwealth government and intended to advance the cause of Islam in the period from May to September.[18] The continuity of belief, and the continuity of the accused‘s commitment is demonstrated over the period covered by the table A evidence. The overall period covered by the evidence is about 8 months, of which 4 months is the periods that is the subject of the charge.
[18]See also the discussion in Fattal in the context of whether the accused had desisted from the conspiracy [2013] VSCA 276, [191].

The Crown submitted that, beyond its explicit disavowed use of the table A evidence for tendency reasoning, the evidence is incapable of being so used. The Crown contended that the accused had not attempted to demonstrate how the conclusion that the evidence can only be used for tendency purposes is to be reached or why it should be so. The proper approach is that if the evidence is capable of having two uses, then the true purpose for its use needs to be identified and, in due course, appropriate jury directions fashioned. Conceding that only evidence whose probative value is not outweighed by the danger of unfair prejudice to an accused is admissible, it is contrary to clear authority[19] for the accused to submit that the onus was on the Crown to demonstrate that non‑tendency evidence carries no danger of unfair prejudice. The accused must grapple with the proposition that the evidence, albeit ‘startling, lurid and prejudicial‘ is admissible as background evidence. In many cases evidence is admitted, because the court considers that appropriate directions as to its use can be fashioned.
[19]R v DG [2010] VSCA 173, [42], [51]-[58], Karam v R [2015] VSCA 50 [117]-[118].

Section 95 of the Evidence Act provides that if the court were to admit the table A evidence as background and context evidence, the evidence could not, once admitted, be used to prove tendency. The Crown did not contend otherwise. Rather, the Crown submitted that there were many examples in the cases of appropriately fashioned directions to the jury that permit the proper use of relevant and admissible evidence even where there is obvious prejudice to the accused.[20] The Crown is intending to draw the jury‘s attention to a series of conversations involving the accused, and conduct that demonstrates his commitment to a particular philosophy or a way of thinking, his state of mind, against which the jury will be invited to consider the accused‘s possession of the magazine and his knowledge of its scope and purpose and its prospective use. The jury would be instructed that table A evidence does not show a tendency to possess Inspire 9 for the purposes of connection with an act of terrorism in the form of igniting a bushfire but rather is background to the more specific purposes of why that contemplated proposal is a terrorist act and to what objective the accused knows that he possessed the magazine. The jury would also be instructed not to use the material in that way and to not decide the case based on prejudice arising from what the jury heard about the accused.
[20]See, for example, Harriman v The Queen (1989) 167 CLR 590.

The challenged evidence

I will categorise and deal with the 52 items of evidence as follows. These categories are not exact and there is overlap. I use them simply for expeditious discussion of the issues and to provide a guide for more precise editing of the evidence for the trial.

(a) Possession of the USB that also contained various electronic document files – Item 52.

(b) Hanging two banners in public places both conduct and conversations - Items 1 – 3.

(c) 37 telephone intercept and listening device conversations in which the accused participated. There are sub-categories of these conversations.

(iii) Discussions about Islam, jihad, war, martyrdom or going to jail – Items 4, 6, 7, 12, 17, 19, 25, 30, 38.

(iv)Discussions about fighting overseas or going to Bosnia – Items 8, 11, 18, 23, 48.

(v) Discussions about other possible activities unrelated to the particularised terrorist act – Items 9, 10, 12, 13, 14, 15, 16, 17, 18, 28, 45.

(vi)Discussions about other religions and atheism– Items 20, 21, 24, 29, 36, 47.

(vii) Discussions about surveillance – Items 1 – 3, 28.

(viii) Discussions about deleting or hiding material – Items 42, 43, 44, 46.

(d) Possession of other editions of Inspire Magazine and related evidence including discussion suggesting reading editions of the magazine – Items 11, 28, 33, 37, 39 – 41, 51, and 53.

(e) Files on the accused‘s laptop; ‘6 Urdu Nasheed…‘ and ‘Syria Jihad Nasheed…‘. – Item 52.

(f) The accused accessing the ‘unjustmedia.com‘ and ‘tawhed.net‘ websites – Items 7, 27, 31, 32, 34, 35, 49, 50.

The items in table A have mostly been set out in chronological order and it is convenient, particularly having regard to the circumstantial nature of the Crown’s case to discuss the individual items in chronological order, although later analysis will be by reference to the categories I have just identified.

Item 52 - Accused in possession of a USB which contained articles in relation to manufacturing weapons, tear gas, knock out drops, a silencer together and video files containing extremist material. (Categories a & e)

On the USB device - the same USB that contained other editions of Inspire - various electronic document files were located containing information on firearms, silencer, grenades, tear gas and knock out drops. The documents in question were generally opened on the laptop on 19 November 2011. The last evidence of access for many of them was 4 December 2011. This is the category a evidence.

However, there are two video files that are exceptions. The first, titled ‘The Life of Abu Omar as Saif’, was saved or moved onto the laptop, opened, perhaps watched, and then moved to the USB on 24 March 2012. Another video, referred to as Edrab Nasheed shows a picture of Bin Laden on the opening shot. It was copied to the USB on 8 November 2011. On 22 February 2012 it was opened on the laptop from the USB. On 16 August 2012,[21] it was again opened on the laptop from the USB. Later that day it was saved from the USB to a folder on the laptop entitled ‘Nasheed’, then on 22 August 2012 the document was opened on the laptop from that Nasheed folder. This is the category e evidence.
[21]Note date of items 39 – 41.

The Crown contends that this evidence is relevant as it would be open to the jury to find that that material was in the possession and control of the accused. If the jury accepts that the accused possessed, viewed, and controlled these documents, whether described as extremist material or material associated with the use of violence, is relevant to prove that the accused had a state of mind that was disposed towards advancing the cause of Islam, presumably through Islamic jihad. That state of mind is to be proved by inferences drawn from circumstantial evidence. The possession of extremist material provides, in part, a foundation for an inference that the possession of Inspire No. 9 and the conversations about a fire were in preparation for a terrorist act.

The accused takes issue with the relevance of items found on the USB device, in terms of whether certain items (pictures of weapons) were accessed on 30 August 2012. The accused contends they were last accessed on 4 December 2011. The accused says some material is not relevant i.e. a video of a biographical Jihadist depiction of someone‘s life with battle scenes watched on 24 March 2012. It is unclear if the prosecution can show how long a particular document is opened for, although an inference might be drawn through timeframes. Another video of battle scenes was opened on 22 February and the accused says this is not directly referable to the charge and only could be relevant in a tendency way, and its prejudicial value would be outweighed by its probative value.

Items 1 to 3 – Hanging the banners, (category b)

On 27 January 2012 in the early hours of the morning, the accused, in the company of two men, Fahad Rasooli and Mohammed Zuhair, hung a banner from an overpass on the Monash Freeway. The banner read, ‘Get your troops out of Muslim land, you filthy kaffir‘ (item 1). A second banner was hung soon after from the fence of a Telstra telephone exchange in Roxburgh Park. The banner read, ‘Get your troops out of Muslim land, you convict pigs‘ (item 3). The Crown submits that Rasooli and Zuhair were friends with whom the accused would later discuss notions of radical Islam. Their involvement gives necessary background to conversations involving the accused at a later stage. Further, the wording on the banners confirms the accused‘s attachment to radical Islam, and his antipathy both to non-Muslims and Australia‘s participation in conflicts in Arab lands.

The activity was captured by surveillance and tracking devices and the evidence is of two distinct types – the activity itself of placing the banners and the message they communicate and what is said in the car by the men as they going about this activity. The material shows the accused to be the leader. The accused can be heard giving advice about counter-surveillance measures for their benefit, such as putting mobile phones in ‘flight mode‘, avoiding toll roads and leaving identification in the car when hanging the banners. Between the hanging of each banner, another conversation is identified (as item 2), a discussion of Islamic religious and ideological issues. The accused can also be heard to state:

Mate, do you ever feel like you‘re in the operation? The reason we for this is because our intention is much bigger than what we‘ve done, our intention is much bigger than what we‘ve done.
That‘s one thing we‘ve got to stick to from now on. Once we make the plan, stick to the plan, ‘cause if we start changing the nature of styles of operations, once you make it.

A dialogue in Arabic that the Crown describes as a ‘sermon‘ can also be heard behind the conversation that the Crown says confirms the interest of the accused in radical Islam. Some of the ‘sermon‘ is translated from Arabic in the transcript of the audio surveillance, producing statements in English like ‘Allah beheaded him‘, ‘Jihadist sermon stops‘, and ‘Jihadist sermon is mostly inaudible although there is mention of bombs‘. This is common to many of the surveillance audio and transcripts. It is not clear why the jury should read a partial, probably selective, translation of the sermon. The accused correctly characterised such comments in the transcript as ‘editorialising‘. The accused says in his record of interview that he does not speak Arabic, although the transcripts show that he can use some Arabic expressions, particularly expressions that might be sourced from a religious education or study, such as ‘exulted is Allah‘. The transcript doesn‘t otherwise convey that the occupants of the car would understand, or what they are drawing from, the ‘sermon‘. There are other comments and explanations of irrelevant background events such as ‘sound of car door closing‘. I am not considering the proper editing of the surveillance audio and transcripts at this stage, an issue yet to be discussed between the parties. The present defence submission is that the jury should not hear these transcripts at all. That said, the Crown submitted that the ‘sermon‘ was ‘not irrelevant‘ and could rationally affect an assessment of the probability that the accused had a commitment to radical Islam.

The Crown submitted items 1 – 3 are relevant to an assessment of the circumstances of the possession of the accused of the Inspire no. 9 and to the accused‘s state of mind. It is primary evidence of a state of mind, which exists in a continuous sense, that involves a serious commitment to advancement of Islam, particularly radical Islam, an antipathy towards non-Muslims and opposition to Australian troops in Muslim lands. The references to a ‘bigger operation‘ and ‘sticking to a plan‘ are relevant to the accused‘s intention to prepare for, or his contemplation of the charged proposed terrorist act. The Crown submitted that the jury may view this conduct as demonstrative of an antipathy to, in a general sense, western society, in a more particular sense, the Australian Government‘s involvement in an overseas war in Muslim lands. The Crown would contend, for example, the term ‘kuffar‘, is a derogatory term for a non‑Muslim. This evidence shows a state of mind, an adherence to a view, a philosophy, and an outlook on life. If the accused is later found to be in the possession of a thing which can be used in a terrorist act, which advocates a similar philosophy, the jury would be entitled to reason his possession is not entirely accidental, and more likely than not - bearing in mind how he obtained it, how long he had it, when he looked at it, didn‘t look at it, how he used it, his discussions about it - that he knew of that connection because of the conjunction between his belief and that same belief being propounded by the producers of the magazine as expressed the magazine itself.

The accused submitted that the evidence is not relevant to any issue in respect of Inspire No. 9 and, in the bigger picture, whatever state of mind of the accused at this time might be deduced is not relevant to prove as a fact that the accused had the same state of mind on the 18 May when the charge commences as if it is some sort of continuous static belief. The accused‘s antipathy to non‑Muslims and his religious commitment is not a state of mind, it is a tendency. The dominant purpose of the evidence properly understood is to permit tendency reasoning - the accused‘s conduct and his statements makes it more likely that he would engage in or contemplate preparing for the alleged terrorist act. The evidence carries the danger that the tendency purpose would loom large over any non-tendency purpose. The attitudes of the accused, characterised as counter-surveillance awareness, are really just incidental to the activities then occurring. That evidence can have no other relevance than tendency relevance – the accused is the sort of person that engages in counter surveillance activities and his tendency to do that makes it more likely that he would engage in counter surveillance activities for other purposes, which include the charged count.

Item 4 – Conversation in car with Rasooli, (category c(i))

A conversation occurs in the car on 10 March 2012 between Rasooli and the accused who states to Rasooli, ‘the best thing to do – just wasting your time and effort and energy, just go man in another life.‘ A conversation follows where Rasooli and the accused discuss someone working at a place where they make shampoo, soap and powder. The accused then discusses ‘a land that was under Sharia but it gets taken over by the Kaffir‘ as having:

has two categories at the same time. It remains a land of Islam, it remains a land of Islam and it becomes land of war at the same time. But what happens, it remains land of Islam for the fact of the duty of every single man, woman and child to pick up arms and fight until they get the land back, and it‘s the land of war because it‘s been taken over. So it‘s not a ruling on ‘now this land used to be Islam‘ and now the people say, ‘no, okay, we‘ll accept these people and we‘re going to leave and Allah willing, Sharia will come back‘, no, you‘re not. It‘s Haram, it‘s not permissible in Islam to live there and live a normal life. You have to make migration from there, and sarum to do business and everything there. People don‘t understand this, bro, and the sheiks like what you know, what‘s the ruling you go - he goes, ‘these people are big sinners and it‘s one of the biggest sins you can do.‘

Then the accused speaks about ‘land of (indistinct)‘, which is interpreted as meaning waiting and preparing for war, ‘There‘s no choice,‘ Rasooli states, ‘There‘s no choice for you,‘ and the accused then says, the Crown says significantly,

You don‘t have a choice. You‘re either preparing for war or you‘re war. You cannot, you cannot now sit down, just do business and never, ever do what you, what Allah exalted almighty tells you to do.
So I tell these brothers, these brothers, bro, you‘re in Bosnia, bro, telling them all these brothers that you are talking about Sharia villages, in the first place it‘s haram for them to live there.
Bosnia was a land of Islam, man, under Sharia, hundreds of years, man, hundreds of years, and now you‘re talking about going there just because it’s Sharia and you‘re going to live - going to go and live in haram. The people there sacrifice to bring it back. At least they‘re okay now. What they have is they proclaim Sharia, it means they‘ve taken it back. But you have to make disassociation to the Government. We‘re talking autonomy, we‘re splitting from you, we don‘t recognise you nor do we associate ourselves with you. This is what we have, we guard our system, our own country. This is a different issue.

The accused speaks about Islamic land that the kaffir (the disbeliever) takes over, ‘then you have to get him out.‘ ‘Even with the idol worshipper, you‘ve got to get him out.‘ The accused discusses how many have lived and died for the sake of Allah, and states ‘So what, bro? I think I ‘ll be happier in gaol, man.‘

Even this issue, like even this issue of having patience getting our ends up, bro, I‘m not going to wait too much longer, man, it‘s not - I‘m not that person. If I have to choose between waiting and losing my - my belief, this way, this situation just taking away from your belief, bro, so I - unless I go and move to Furqan [Islamic learning centre in Springvale] in some way, I‘ll get a pillow and stay there 24/7.

Rasooli warns the accused that someone will be arrested because of ‘this terrorism‘ and that the accused should be careful because ‘ASIO will come.‘ The accused states that ASIO is calling him all the time as he gets calls from unknown numbers. He states if ASIO wanted to ‘get him‘ then they could have for something else like his Facebook, stating, ‘that‘s less, you know what I mean? Just for me mentioning or, you know, death - death to Australia and this and that, you could go to gaol for that or saying anything against Israel you can go to gaol for that.‘

The Crown submitted this evidence is relevant to the accused‘s attitudes towards ASIO and non-Muslims. The Crown submitted it demonstrates a devil-may-care attitude on the part of the accused about going to gaol for his activities.

The defence suggested that the reference to patience and waiting, if it is suggested as waiting for the commission of a terrorist act, is speculative and not referable to the offence charged. Taken as a whole, this thinking can only be suggested as operative at the time of the accused‘s possession of Inspire No. 9 through tendency reasoning.

Item 5

The Crown agreed not to lead this item of evidence.

Item 6 - Accused discusses the Mujahedeen, a Sheikh and preparing (category c(i)).

In a conversation between the accused and his brother Nihad in a car on 28 March at 8.30 am, Nihad asks the accused if he has read a profile of Sheikh Yusef Al-Uyayri. The accused replies ‘not really‘ to Nihad‘s inquiry if he knows anything about the Sheikh. Nihad says:

Some police guy killed and they found that police guy and beheaded after the guy that killed him. You know, they shot him. Full on bro, is when you listen to these biographies of these Sheikhs that are staunch.

The accused speaks about the prophet, and conversion to Islam. The accused discusses preparing with Nihad. The accused states:

Only send one or two companions to go (indistinct) to the Christians in (indistinct). Why didn‘t they send the whole people to go make everyone Muslim? It‘s not everyone‘s job. It‘s not like that, bro. Even when someone comes and accepts Islam from some village and he tells you to go back‘ …‘I‘m not saying that we‘re not doing the way, but if you‘re preparing for that, then you don‘t do that‘.

In further conversation, Nihad asks the accused, ‘Are you really preparing?‘, and the accused says, ‘Yes‘. ‘Are you? You‘ve got to really ask yourself‘. And then the accused says, ‘No, you have to know‘. And Nihad says, ‘Are you real? You know, Sheikh Al-Uyayri or whatever, yeah, he‘s got an he‘s got an article, preparation Islam, I read it last night‘, ‘Yeah‘, ‘He‘s refuting that you don‘t need physical fitness, right?‘, ‘Yeah‘. ‘In his article, he says that one must prepare himself before he comes with extreme physical fitness before‘ - the accused says, ‘That‘s correct‘. The accused continues, ‘Don‘t need to go to the gym, all these things. Like I said, power over we talk - I was talking about an act‘.

The accused discussed preparation:

What I‘m saying for the person that is prepared to do that in (indistinct) Allah that‘s committed to it and he has an intention to do it, and three practical steps towards doing it, then if you start giving people dawah you‘re going to be known by the people - people are going to talk about you just by that. Enough is enough of a word - like, ‘cause if ASIO when they come or AFP, when they go asking around, ‘What‘s going on?‘, you know, ‘What do you think about this person?, if you‘re active in the community, they‘ll know you.

The accused discussed ASIO or the AFP asking family members about him and his views.

The Crown suggested this item of evidence demonstrated a particular attitude to Muslims in society in general, was demonstrative of the accused‘s particular political and religious philosophy and shows awareness of surveillance.

The defence suggested that if the accused was talking about the need to prepare himself to commit a terrorist act and about the need for physical fitness, the conversation was speculative and its use as evidence must involve tendency reasoning. The accused is essentially saying that if you start giving ‘dawah‘ you are going to attract the attention of the authorities. The accused contended the remainder of the material was not probative of the charge.

Item 7 - Accused discusses the Mujahedeen, Al Qaeda and the ‘unjust media website‘(category c(i) & (f)).

In this conversation, held on the same day as item 6 later in the afternoon in the car, the accused is again in the company of his brother. Nihad says, ‘They‘re saying on Unjust Media the Taliban are - are saying like, you know, negotiating and stuff,‘ and the accused says, Yeah, I read it.‘ The accused goes on to say, ‘Talking about how like the Americans are not doing what - not ah, their words,‘ and Nihad says, ‘No, you should just - I don ‘t know why it doesn‘t make them realise, bro. Why negotiate, man? Doesn‘t it make them realise? Talk about the side from Allah showed them don‘t negotiate, know what I mean?‘ The accused: ‘Bro, they can negotiate but they have to put the implications that they put is not just their own country, but the whole of ummah,‘ (nation of Islam). The accused discusses how the Mujahedeen are not all united, and there is some discussion of Al Qaeda and Allah.

The defence submit that this conversation is irrelevant, as is the fact that the accused accessed Unjust Media. They suggest that Unjust Media features a wide variety of material that has links to various things including what you could call Jihadist themed articles but also news coverage such as about Afghanistan which they could be referring to.

Items 8 & 9: 8 - Accused discusses Muslims fighting Overseas, (category c(ii)) 9 - Accused discusses robbing lotto winners, taking hostages and robbing an ATM (category c(iii)).

On 2 April 2012, the accused discusses the need for Muslims to have weapons to fight and advancing the cause of Islam. Nihad states ‘Muslims are suffering,‘ and the accused says, ‘Yeah, Muslims are suffering but there‘s no weapons, bro. What are you going to do with no weapons?‘ His brother asks, ‘Isn‘t there?‘ and the accused says, ‘No, man. Where - if they had weapons, do you think they would shoot back?‘ There is a discussion about polytheists and their beliefs about deaths, the accused says they have ‘heaps of gods‘ and ‘deny Allah as the creator.‘

A short time later, the accused discusses taking people who win the lotto hostage, or robbing them of their money at the ATM. There are further discussions of weaponry and anti-tank guns, and how a stun gun could be used by putting it in people‘s faces because they will think it is real.

The defence suggests this conversation does not make much sense.

Item 10 - Accused discusses not relying on anyone, doing a robbery and booty and plunder not being for personal use (category c(iii)).

Another conversation occurred that day in the car. The accused refers to keeping weapons that people think look real in the house for his wife in case someone comes. The accused states that you should not claim your support for Allah if you don’t act on it:

My issue is if you‘re going to give dawah, then give dawah and stay away from ifta. Don‘t mix, mate. Don‘t claim you‘re in the cause of Allah and do nothing. That‘s my issue. Don‘t claim that, bro, claim your support for the cause of Allah but don‘t say you‘re jihadi, salafi jihadi, you‘re not. You support salafi jihadi, you‘re only salafi jihad if you act on it. You‘re not fighting jihadi

The accused states he is not relying on anyone saying, ‘You know who people are willing to sacrifice so we can do it, can do it within a few days.‘ The conversation is about whether Nihad wants to ‘do it‘ and that the accused needs to know how many people he should have and how much money he needs. The accused agrees that the money box should go to the mujahedeen, and states ‘booty, plunder have to grow - you‘re going to do something by force, you have to give it to the money box.‘ This conversation is not dissimilar to others in which they are discussing robbery to get money for the cause of Islam.

The defence assert that this kind of evidence (items 8, 9 and 10) discloses a propensity to talk about engaging in violence to get money, but it is not probative of the charge.

Item 11 - Accused discusses getting searched when trying to enter a foreign country, fighting overseas and reading Inspire magazine ((category c(ii) & (d)).

The two brothers discuss people trying to get to Yemen from Saudi Arabia. The accused says:

Well, it’s about you getting searched or not. They will - they‘re not stupid, bro. What passport you going to go on? You going to go on Australian passport? As soon as you get an Australian passport, what‘s going on? What do you think, it’s normal for an Australian to go to Yemen? Be smart, bro, don‘t be stupid. Even when you get to Yemen itself, what are you going to do then? Even if you know Arabic, what are you going to do then? The mujahedeen didn‘t say you‘ll come and you‘ll find us, they didn‘t say that.

The accused then says, ‘No, it‘s not, bro. Read Inspire magazine and you‘ll see how jihadists get there.‘

The Crown stressed the significance of that conversation about the accused referring Inspire magazine to his brother to be read in the context of going overseas to fight with mujahedeen.

During that conversation the accused talks about how some of the ‘brothers‘ just want someone to ‘lead them‘ and how they don‘t feel ready to make a decision. He states, ‘They want someone to make a decision for them, like if you‘re staunch, then they‘ll be staunch, you know what I mean? If you don‘t, if people don‘t act upon it, then they‘ll just ignore it. They need someone to lead them, they‘re just taking too long, bro.’ Nihad says, ‘Why - why don‘t you tell them that, bro?‘ The accused says, ‘I have said it to them, bro.‘

The accused discusses the reward of being a Martyr, ‘your attainment is Paradise itself’ describing it as being ‘bigger than all of the rewards that you’ll give charitable donation out’. There is a discussion of the accused going overseas. His brother suggests his wife is holding him back. The accused says he wants to leave her ‘in a certain place before I go.‘ Nihad suggests the parents could take care of her and the accused says ‘it‘s not holding me back.‘ The accused says he doesn‘t want to go to Syria ‘in the cause of Allah there, because it‘s not established itself yet.‘ There is a disagreement about that idea. The brother states ‘AQAP[22] sent troops there.‘ The accused says:

Well, yes, to their own, to their own, to their own front. You don‘t know which frontline you‘re joining, bro, there are groups everywhere, like Bosnia, people dying everywhere, so everyone‘s just grabbing arms to shoot, so I don‘t want to just start joining anyone, simple as that. I‘m not stupid, I‘m not going yet. My wife‘s not holding me back. I can go any time I want.

The Crown noted that AQAP is the publisher of the Inspire magazine.

[22]Al-Qaeda Arabian Peninsula

The defence submitted this conversation about the accused‘s wife supported the argument that a state of mind may change, the accused may modify his views, and that the idea of continuous static belief is problematic. The defence also suggested this conversation, although including a reference to Inspire magazine when discussing passports, could only be used by a jury for tendency reasoning.[23] The defence.
[23]Citing Odgers’ discussion of evidence of the accused’s interest in something as tendency, discussed above.

The defendant submitted that items 8, 9, 10 and 11, which all occur on 2 April 2012 by and large contain irrelevant material that cannot advance the Crown’s case. The only real relevance of discussion about robbery, theft or hostages is to support tendency reasoning. Further, it isn‘t clear that all of the proposed dishonesty conduct discussed is for Allah, contrary to the Crown’s contention. Although at times, the conversation suggested the offences were to benefit Allah, at other points, the two men talk about making money for themselves. The accused submitted that the material is irrelevant, and it could only have an impermissible tendency purpose that would not get past the threshold requirements of the tendency rule.

Item 12 - Accused discusses not dying a martyr if you do a robbery for personal benefit and doing it as a group to destroy the Kuffar (category c(i) & (iii)).

Another conversation took place in the car between the accused and his brother on 3 April 2012. The Crown described it as a discussion of jihad and martyrdom, expressing the aim to destroy the kaffir, and advancing the cause of Islam.

The brothers discuss that if you die on the path for personal life gain you are not a martyr, because ‘it‘s not jihad.‘ The accused says, ‘If you die, you‘re a martyr and it comes to you anyway, only (indistinct) goes to the money box. So what‘s the benefit, the benefit that awaits you if you do it under that?‘ His brother says, ‘Well why are you doing it in the first place? What‘s the reason for it?‘ and the accused responds ‘To destroy the kaffir.‘ His brother says, ‘Yeah, but that‘s - that‘s why they‘re doing it. And the accused says, ‘That‘s right.‘

The accused submits that this discussion demonstrates an interest in what could be described as Jihadist stories and history, some references to the Mujahedeen and the difference between dying in the cause of Allah or for personal gain, none of which is probative of the charge.

Item 13 - Accused discusses committing a robbery for the benefit of the Mujahedeen (category c(iii)).

This conversation took place on 4 April 2012. The accused discusses obtaining money for Islamic causes. Nihad states, ‘Man, I don‘t wanna friggin‘ die for money‘. The accused says, ‘Nah, it‘s not about - it‘s not about your own personal wealth what you‘re talking about‘. Nihad: ‘I don‘t care about that, bro. When I run out of money, then I will do it‘. The accused: ‘It‘s got nothing to do with that, bro. I‘m talking about doing it for the Mujahedeen, bro‘. Nihad: ‘If I‘m going to do that, I‘m going to give it all for the sake of Allah‘. Accused: ‘That‘s right, that‘s what we‘re talking about. We‘re not talking about enjoying yourself, we‘re talking about doing it, setting it up so that this money goes straight to the front line, bro. That‘s what it‘s for‘.

Item 14 - Accused discusses robbing an ATM and being staunch (category c(iii)).

This is again a discussion about obtaining money illegally from an ATM and of commitment to Jihad. The accused states that they are ‘relying on us, bro.‘ Nihad discusses taking a certain amount from an ATM but without deducting the amount from your account, and how this ends up being free. There is a discussion of where you do this, if anyone has tried it. The accused says: ‘He‘s one of the brothers who needs to be in the atmosphere otherwise he loses it. There are some brothers that are staunch on their own and there are others that need the atmosphere‘, and then he goes on to say, ‘I‘m talking about in terms of like, 100 per cent staunch, Jihad, everything‘.

Item 15 - Accused discusses an armed robbery, preparing for the operation and laundering the proceeds (category c(iii)).

An example can be used to demonstrate the inadequacy of the particulars. Assume that a person, motivated to advance a fundamentalist Christian view of the sanctity of human life, threatened to shoot any woman who entered a fertility clinic, intending by that threat to intimidate a section of the public from seeking termination of a pregnancy or to intimidate the State government not to legislate to protect safe ingress and egress from such places. To allege that the threat was more than a threat to kill and was a terrorist act, it would not be sufficient to define that person’s intention as ‘advancing the cause of Christianity’. It might be sufficient to characterise it as pursuit by violence of a particular fundamentalist Christian belief.

It is only when a particular action or result - one that meets the statutory description - has been identified that evidentiary considerations, particularly in respect of state of mind, of context and of tendency, can be properly identified and evaluated. The examples given by the NSW Court of Criminal Appeal in Elomar of states of mind that in ordinary human experience a person has, as opposed to tends to have, are broad and complex. Such states of mind might be categorised as a set of beliefs rather than a particular belief. Broad adherence to a set of beliefs may well be assessed, in ordinary human experience, as continuous. The difficulty, for a trial judge, is that the identified state of mind is too general to support probative reasoning. The more particular, or specific, the state of mind or belief that must be proved to exist at a particular time, the more likely is the prospect that the reasoning of the inference that that state of mind existed at a later point in time involves tendency reasoning,[47] unless there is an evidentiary basis for concluding that, in the circumstances, there was near contemporaneity or continuity over the relevant period.
[47]This proposition is the logical converse of a proposition recognised in respect of the requirement for admissibility of tendency evidence that one way in which tendency evidence possesses significant probative value turns on the degree of generality or specificity with which the ‘tendency’ is stated. The greater the degree of specificity in the statement of the tendency the greater the prospect of establishing significant probative value in tendency reasoning. Velkoski v the Queen [2014] VSCA 121, [166], CGL v DPP [2010] VSCA 26, [39] – [40], El-Haddad v R [2015] NSWCCA 10, [70].

The specificity of the state of mind directly informs the strength of the inferential mode of reasoning. To say that a person has a belief in a complex concept such as a religion or an intention to advance it does not much inform the question of whether he is an arsonist or a terrorist. It is much more informative to reason that a man who has a belief in the pursuit of violent jihad is contemplating making an ember bomb to start a bushfire as an act of terror, if the fact in issue is whether that man possessed a magazine that advocated violent jihad and explained how to make a bomb for the purpose of igniting a bushfire.

That said, the Crown’s particular position on the content of the phrase ‘advancement of Islam’ was, during the course of its submissions, variable. Although that general expression was used, the Crown also referred to ‘his commitment to an extremist form of his religion’, ‘committed to an ideology of violence and extremism’, ‘advancing his extremist ideology’, and ‘a philosophy that advocated the use of violence to advance Islam’. The accused’s submissions refer to a state of mind that ‘manifests jihadist interest’ or an ‘interest in extreme ideas’. In the circumstances, this ruling is predicated upon a proper particularisation of the ‘advancing cause’ intention by the Crown that, consistently with the language used in submissions and the concept addressed by the accused in argument, identifies an action or result advanced as a Islamic religious cause. It is necessary that the Crown clearly identify, in its own way, how the ‘advancing cause’ intention is being put. For present purposes, I am assuming that it is ‘pursuit of violent jihad’ as in Elomar.

Once it becomes clear that what the Crown must establish is a particular advancing cause intention rather than a broad set of beliefs, an direction to the jury that the permissible use of other misconduct evidence is to use its common sense to assess whether the accused has a state of mind in the nature of a continuous static belief or a tendency is unlikely to satisfy the obligation under s 27(2)(a) of the Jury Directions Act. However, a direction that would satisfy that obligation, particularly in a circumstantial case, would be that the jury could use an item of contextual evidence to prove conduct on an earlier occasion and to draw - in conjunction with other contextual evidence an inference of near contemporaneity or continuity in that state of mind - an inference as to the fact of the accused’s state of mind was the same at the time of the charged conduct; in conjunction with a direction not to use the evidence, which would be other misconduct evidence, for any other purpose such as propensity reasoning.

As will be clear, most if not all of the table A evidence is other misconduct evidence as defined in s 26 of the Jury Directions Act and will require that I direct the jury about the permissible and impermissible uses of the evidence. I was referred to s 95 of the Evidence Act. In White v Johnston,[48] the NSW Court of Appeal stated that if evidence is relevant only for inferential tendency reasoning, then it is inadmissible unless the protections in s 97(1) of notice and significant probative value are satisfied. If evidence is relevant for some other purpose as well as tendency reasoning, then s 95 ensures that unless the protections in s 97(1) are satisfied, the evidence may only be used for the non-tendency purpose. Considered with the provisions of the Jury Directions Act to which I have referred, the court needs to assess the probative value of the evidence for that non-tendency purpose and that task requires the court to identify with some precision what the tendering party proposes to establish by the evidence. That inquiry involves the nature of the evidence to be admitted, the purpose of tender, the context of the evidence in the prosecution case, the directions the court would give to the jury and the court‘s assessment about whether those directions would be likely to facilitate a fair trial.
[48][2015] NSWCA 18, [139] see also Australian Securities and Investments Commission v Park Trent Properties Group Pty Ltd (No 1) [2015] NSWSC 752, [23] – [25].

For these reasons, although I generally accept the defence submissions that the table A evidence has tendency uses, subject to other identified requirements, I will admit the evidence where the Crown has a legitimate use for the evidence that permits proper direction of the jury so as to avoid the unfairness of rank[49] propensity reasoning.
[49]As opposed to tendency reasoning where the significant probative value of the evidence in respect of a particular issue substantially outweighs the prejudice to the accused which would be permissible if the tendency rule and the procedural requirements of the Evidence Act were satisfied. As noted, the Crown eschews reliance on any tendency reasoning.

Analysis

Applying the principles drawn from these authorities, I will set out my rulings in respect of the admissibility of the table A evidence by the following sequential analysis:

(a) is the evidence relevant?

(b) What is the proper characterisation of the evidence? Is the purpose of the evidence:

(xi) in direct proof of a state of mind;

(xii) for necessary context; or,

(xiii) for tendency reasoning?

(c) If its purpose is for tendency reasoning it will not be admitted.

(d) If its purpose is legitimate, but as other misconduct evidence, its purpose will require specific direction to the jury raising the issue of whether a proper direction can be given as required by s 27 of the Jury Directions Act.

(e) If its purpose is otherwise than for tendency reasoning, in the context of any direction that might be given to the jury, does its probative value outweigh any danger of unfair prejudice to the accused.

Because the Crown’s case is circumstantial, I will bear in mind that each individual item of the table A evidence forms part of a mosaic and that the purposes for and use of each piece of evidence must be considered within that broad context.
Category a – Other extremist material including articles on the USB

The Crown proposes that the purpose of the Item 52 evidence is to demonstrate that the accused possessed or controlled extremist material or material associated with the use of violence. It would be contended that such possession renders it more probable that the accused had a state of mind disposed towards advancing the cause of Islam in the manner that I have set out at paragraph [204]. While I accept that this item is relevant in a circumstantial case in that it is rationally capable of indirectly affecting the probabilities of proof that the accused intended to pursue violent jihad and intended to coerce or influence by intimidation or cause harm or damage, I consider that its probative value is weak.

The essence of the evidence is the fact of possession of the USB containing those files. There is no connection between the possession of that material and the conduct particularised as the contemplated terrorist act, or any other contemplated activity. The material is not related to constructing an incendiary device or planning a bushfire. There is no sense in which this item of evidence provides context for a better understanding of the charged acts, the accused’s response to the investigation, and it provides only faint evidence of motive for the charged acts. Rather than having the purpose of placing the evidence concerning the charged events in context, this item of evidence is itself out of context.

The circumstances of conspiracy charges in Elomar are quite different from the single charge brought against the accused. A key feature of the evidence of extremist material in Elomar was that it was in the common possession of the accused’s and could be circumstantial evidence grounding an inference of a conspiratorial agreement.[50] Those features are not present here. Apart from their continued presence on the USB device that was located in the accused’s possession on his arrest, there was no reference to this material, other than the two videos,[51] at any time during 2012. Although there was some discussion about weapons, such as guns and Molotov cocktails, that discussion was not connected in any way to these items. This material is disconnected from the circumstances of the charged offence.
[50]Elomar & Ors v R [2014] NSWCCA 303[474].
[51]Separately discussed below as category e at paragraph [242].

I accept the accused’s submission that the only, or at least the likely predominant purpose for which this evidence could usefully be used is for propensity reasoning in the manner that counsel articulated.

However, if I assume the possible purposes for this evidence as submitted by the Crown, I am not persuaded that an appropriate direction about this evidence as other misconduct evidence would ameliorate the danger of its use by propensity reasoning. Bearing in mind the whole of the evidence to be led against the accused as disclosed by the Summary of Prosecution Opening, and that the case is circumstantial, the disconnected nature of the material from the fact in issue persuades me that the extent to which it might rationally affect the jury’s assessment of the probability that the accused had a state of mind that might be used by the jury to characterise his conduct in relation to the charged events as a terrorist act, or that he intentionally possessed the magazine is weak. On the other hand, the risk that the jury might fail to appreciate, or correctly follow, a direction to use the evidence for that unconvincing purpose and not for the propensity reasoning that would readily appeal to it is a significant danger.

I would refuse to admit this evidence, applying s 137 of the Evidence Act, because its probative value is outweighed by the danger of unfair prejudice to the accused.

Category b – The banners

I am satisfied that Items 1 to 3 are relevant and that there is a proper purpose for use in the trial of the parts of each item to which I was taken in argument. The physical evidence of the banners is relevant circumstantial evidence that rationally affects the probabilities that the accused supported radical Islam and was antipathetic both to non-Muslims and Australia’s participation in conflicts in Arab lands. The conversation can show that the accused contemplated a plan for ‘bigger intentions’ and was conscious that his activities could attract covert surveillance. In the context of a circumstantial case, I accept that the Crown can invite the jury to use this evidence as primary evidence of the accused’s state of mind at that time, for which purpose it is relevant in demonstrating that the accused had a particular advancing cause intention. Because the case to be presented by the Crown is circumstantial, and there is other evidence of the accused’s commitment capable of persuading a jury that this commitment was ongoing through to the accused’s arrest, the jury can be directed as to the proper basis for the use of this evidence and to not use the evidence - which is plainly other misconduct evidence and is capable of being used against the accused for tendency reasoning in the manner contended for by the accused’s counsel - to decide the case based on prejudice.

I am satisfied that the circumstantial case against the accused could properly demonstrate that he has a continuous state of mind of active commitment to radical Islam, and an antipathy to non-Muslims from which the jury might infer an advancing cause intention of ‘the pursuit of violent jihad’. There are other items in the table A evidence,[52] part of the Crown’s circumstantial case, that are capable of providing a rational evidentiary foundation either for a notion of continuity or a notion of near contemporaneity that would provide the basis for a direction to the jury about the proper use of the evidence in order to consider the accused’s alleged advancing cause intention in the particular context of the alleged terrorist act.
[52]Particularly categories c, d, and e.

Taking into account that a direction would be given to the jury about the proper, and improper, uses of this evidence I am not persuaded that its probative value, which might be strong, is outweighed by the danger of unfair prejudice to the accused through impermissible tendency reasoning.

Those parts of the conversations capable of being characterised as advice about counter surveillance measures are relevant context, as is the conversation set out above in paragraph [54], and will also be admitted.

Category c – surveillance conversations
Discussions about Islam, jihad, war, martyrdom or going to jail

Items 4, 6, 7, 12, 17, 19, 25, 30, and 38 fall within this category and I am satisfied that this evidence is relevant as part of the Crown’s circumstantial case. If this evidence was accepted by the jury, it could rationally affect their assessment of the probability of the existence of one or more of the states of mind that must be established by the Crown as set out above in paragraph [198]. All of the circumstantial evidence to be presented by the Crown in connection with the accused’s state of mind may be used by the jury as direct evidence of the accused state of mind during the period of the charged conduct because of the continuing expression of concepts throughout these conversations that may assist the jury to determine whether the accused had one or more of the mental states that I have identified. It is not necessary, I think, to presently identify the precise way in which each of these conversations might be used by the jury because it is sufficient to identify that each conversation will be other misconduct evidence requiring a direction that identifies how that evidence is relevant. Its relevance is to be established in relation to the direct proof in a circumstantial case of the accused’s state of mind according to the principles discussed above.

I accept the Crown submission that this evidence might also be used to establish motive in the sense discussed by the Court of Appeal, above at [181]. I do not discount the accused’s submission that the evidence is capable of being used for tendency reasoning in the various ways put by counsel in submissions. The discussion by the Court of Appeal of the issues of probative value and prejudice in in Fattal appears apposite in the present circumstances.

Discussions about fighting overseas or going to Bosnia

Items 8, 11, 18, 23, 48 fall within this category and I am satisfied that this evidence is relevant as part of the Crown’s circumstantial case for the same reasons as I just expressed in respect of the preceding subcategory.

Discussions about other possible activities unrelated to the particularised terrorist act

Items 9, 10, 12, 13, 14, 15, 16, 17, 18, 28, and 45 fall within this category. On the one hand, for the same reasons as are discussed in relation to category a, there is a want of connection between this evidence and the charged facts. That said, if this evidence was accepted by the jury, it could be denied that it could indirectly rationally affect their assessment of the probability of the existence of one or more of the states of mind that must be established by the Crown as set out above in paragraph [198].

The Crown submitted that the evidence rendered more likely the proposition that the accused had a mental state that involved contemplation of possible acts of terrorism, an inference that might be drawn by the jury from the consideration of different options, different means, different targets. Further, the Crown suggested that these conversations rendered more probable that the accused would prepare for or contemplate engaging in acts of terrorism by virtue of his commitment to jihad. In that sense the Crown submitted that the evidence tended to establish motive and was admissible as context evidence. I do not suggest that there is not a sense in which these submissions can be made out, but taken as a whole there is in other evidence that is admitted by this ruling more direct and more probative evidence of such matters.

Even acknowledging the circumstantial nature of the Crown case, I was not persuaded by the Crown that the discussion of illegal activities for fundraising purposes has significant relevance in respect of the charge in the indictment. The only sense in which the evidence could be thought probative is as part of a body of circumstantial evidence in relation to raising money for the cause of Islam, for violent jihad by others. In this sense, the evidence could be relevant to establishing an advancing cause state of mind, but I consider that this evidence lacks probative strength. I do not accept that these discussions would materially contribute in a circumstantial context to persuading a jury that the accused possessed one or more of the necessary states of mind.

This category of evidence is plainly other misconduct evidence. It invariably discloses suggestions of significant wrongful conduct or bad behaviour of a quite different nature to the acts charged. In that context, the evidence clearly demonstrates a propensity to discuss schemes that involve some form of violent conduct for the purpose of raising money. The accused has not been charged with any such offence and there is a very strong prospect that a jury could not find any useful purpose for this evidence other than for propensity reasoning. The nature of the conversations is not clear-cut in that it is not always clear that the fundraising purpose is for the advancement of Islam rather than a private purpose, such as establishing a business in Bosnia.

There is no connection between these fundraising activities and any of the charged activities. The possible illegal activities that might be identified by the jury would include sending money to support foreign fighters and like activities. As such this evidence is of serious uncharged acts. It is not suggested that significant funds are needed for the proposed activity of making a petrol bomb or igniting a bushfire. It is not suggested that the contemplated terrorist act involved shootouts with the police or martyrdom or that was necessary to assemble a team of operatives. The scope for propensity reasoning that arises from this evidence cannot be underestimated. The activities under discussion are serious criminal activities. The Crown does not allege that these activities are contemplated or that there was any degree of planning or preparation. No connection is suggested between such activities and the contents of any issue of Inspire magazine.

The task for a jury in identifying clearly the proper role within a circumstantial case for evidence of this sort broadly described as evidence of motive would be a very difficult task. In my view, there is a substantial danger that an effective direction about the proper use of this evidence could not be fashioned to avoid tendency reasoning. A direction may be ineffective in achieving the objective of s27(2) of the Jury Directions Act.

In my view, the danger of impermissible reasoning and prejudicial use of this evidence by the jury to the detriment of the accused is substantial and clearly outweighs its probative value. It is necessary to bear in mind the strength of other evidence that is probative of motive and properly characterised as admissible context evidence or direct evidence of a state of mind. Adding to that body of evidence further evidence of disconnected thoughts and contemplations that neither resulted in preparations or assistance for any charged act carries the prospect of distorting in the minds of the jury the task of separating proper and improper uses for the whole body of circumstantial evidence.

For these reasons I will exclude this category of evidence under s 137 of the Evidence Act.

Discussions about other religions and atheism

Items 20, 21, 24, 29, 36, and 47 are conversations about attending a protest at an atheist convention, a protest at a Jewish anniversary celebration and smashing idols at Hindu and Buddhist temples. The prosecution submits the attitudes expressed by the accused towards polytheism, idol worship, and non-believers (in the Islamic sense) demonstrates a particular antipathy towards persons who profess such attitudes. Again, and for substantially the same reasons as I advanced in respect of the proceeding subcategory, I am satisfied that this evidence cannot be classified as irrelevant, particularly in a circumstantial context, but its probative value appears to be particularly limited. While the prospect of prejudice through impermissible tendency reasoning may not be as likely as it would with the evidence in the proceeding subcategory, I am persuaded that the danger of prejudice to the accused through tendency reasoning in the manner identified by his counsel in submissions outweighs the probative value of this category of evidence.

For these reasons I will exclude this category of evidence under s 137 of the Evidence Act.

Discussions about surveillance.

This sub-category of evidence raises issues of surveillance in distinct senses. I am of the view that this evidence is admissible. Items 1 – 3 include, in parts of the conversation, discussions that show an awareness of surveillance by the authorities or an intention to avoid such surveillance. There are some other references of a like nature in other conversations. These items are admissible as relevant context evidence. The probative value of this evidence clearly outweighs any proper prejudice to the accused.

Item 28 is a conversation within the period covered by the indictment. The audio recording of this conversation was played in court. In item 28, the accused discusses surveillance in the sense of reconnoitre. Such evidence can have strong probative value. In addition to discussion of surveillance, this conversation provides relevant contextual evidence of motive within the charged period. The context of this conversation is related to the charged events. There is a discussion of a person who is profiled in Inspire No. 9 and this item of evidence is directly relevant to the jury’s assessment of the accused state of mind concerning his actual possession of the magazine. The Crown points to a commonality of language between a critical article in the magazine about setting bushfires and the discussion of economic loss. The defence submitted that there were some issues with the transcription of this conversation and that it was possible that its content was being mischaracterised. In substance the accused’s submissions in respect of this particular conversation raised issues of fact that ought properly be left to the jury.

This evidence is of significant probative value and the jury can be properly instructed as to its appropriate use.

That said, those aspects of this conversation that amount to no more than a commentary on the video that was playing in the background are of insignificant probative value that is outweighed by the danger of prejudice to the accused. An example is the comment noted at paragraph [127].

There is also in this conversation some discussion of making and modifying weapons that in my view is different from the evidence falling into category a. Although the particular ‘lemon gun’ that is referred to is an isolated reference it is part of the context of a conversation about planning ‘massive damage’ and ‘economic damage’ that are relevant concepts in the Crown’s circumstantial case.

Discussions about deleting or hiding material

Items 42, 43, 44, and 46 are, principally, discussions about deleting or hiding material to avoid it falling into the hands of authorities. This evidence is clearly admissible, providing relevant context for the jury to assess the accused’s responses to questioning by authorities.

Category d - Possession of other editions of Inspire magazine

The evidence of possession of Inspire issues 1, 2, 5, and 6 on the USB found in the accused's possession and issues 5, 6, and 8 on the accused's laptop computer are items 51 and 53 of table A. Items 37 and 39 – 41 is the evidence that concerned access to those magazines and discussions about that access. I am satisfied that this evidence is relevant. There is a proper purpose for the evidence as part of the circumstantial case advanced by the Crown. If it were accepted by the jury, this evidence could rationally affect their assessment of the probability of the existence of a fact in issue, namely the accused’s intentional possession of Inspire No. 9. Evidence of possession of Inspire issues 1, 2, 5, 6, and 8 is directly relevant to establishing the accused’s state of mind about possession of this magazine at the very time he is alleged to be in possession of issue 9.

The evidence could also affect the jury’s assessment of whether the accused had, at the relevant time, and interest in jihadist terrorist material that was bound up with an intention to advance Islam through coercion and intimidation (violent jihad) and to whether the jury considers it likely that when the accused discussed firebombs, bushfires, and economic damage with Nihad, his state of mind was not that of an arsonist, but one that defines lighting a bushfire as a terrorist act.

Further I am persuaded that this evidence provides necessary context. For example, it may be properly be used to assess and evaluate the evidence of the accused’s conversations about his possession of Inspire No. 9 and his intentions in relation to that possession. If that evidence were not admitted, the jury would be required to consider the responses that the accused gave to investigators in a vacuum, divorced from the proper context provided by the evidence of the accused’s discussions with his brother and others. Given that all 5 editions of the magazine were found either on the laptop or the USB and that editions 8 and 9 were discussed by the accused and his brother in several different conversations, these items of evidence together with the facts directly relating to the charge form a connected series of events that is admissible to provide context for the evidence directly related to the charged events.

Although, as the accused’s submissions demonstrate, there is scope for a jury to engage in propensity reasoning using this evidence, the contextual purpose is highly probative and, at this stage, I consider that the jury can be appropriately instructed as to its proper use and, in particular, that it must not be used to establish that the accused is more likely to have been knowingly in possession of issue number 9 simply because he had a propensity to possess issues of that magazine. I should not be taken by this ruling to be permitting the full content of editions numbers 1, 2, 5, 6, and 8 may be tendered to the jury as exhibits. That is a separate question, which was not addressed in argument.

Category e – two video files

I am satisfied that this category of evidence is relevant and I would admit it. Unlike the evidence in category a, this evidence is relevant in the context of the Crown’s circumstantial case, is rationally affecting the probability that the accused had a state of mind that was disposed towards advancing the cause of Islam by violent or extremist methods. A jury could so reason if satisfied that the accused possessed and viewed these videos on 24 March 2012 in the case of one video and on 16 August 2012 in the case of the other. Other evidence in the table A evidence could persuade a jury that on 16 August 2012 the accused also viewed 2 issues of the magazine. The jury could be directed to use the evidence in respect of these videos as part of a connected series of events of which the facts charged form part.

Category f – the websites.

The items of evidence in this category include items of different form (Items 7, 27, 31, 32, 34, 35, 49 and 50) that require separate consideration. I have already dealt separately with some reference to websites, which are not specifically identified, in surveillance conversations. Items 7, 27, 31, 32, 34, 35, and 49 are evidentiary sources found in the expert evidence of a forensic IT examiner, Mr Wills and relate specifically to ‘theunjustmedia.com’ and ‘tawhed.net’. Item 50 is the exchange of SMS messages referred to above, which also requires separate consideration.

The forensic evidence about the accused’s access to this website falls short of demonstrating access to Inspire magazine. At its highest this evidence can demonstrate that the accused had the opportunity to access the magazine from this source. I am uncertain whether the evidence will show other sources for the magazine but assume for present purposes that access to the magazine through various Internet sites is readily available.[53] Other than being capable of indirectly affecting the probabilities of establishing a passing interest in extremist material, I am not persuaded that this evidence has meaningful probative value. That is particularly so because the evidence falls short of establishing that the accused access to any part of this website beyond its opening pages. That the accused did visit the opening pages of such a website does not materially add to the circumstantial case being advanced by the Crown.
[53]I make this assumption on the basis of a Google search for ‘Inspire magazine’ undertaken while preparing these reasons.

I am not persuaded that this evidence serves any useful function as context evidence or that it provides any contribution as part of a circumstantial case in establishing any relevant state of mind of the accused. For that reason I will not admit it. Alternatively, I accept the accused's submission, that if the purpose of the evidence is to assist the jury to conclude that the accused did access the magazine through these websites, that conclusion would only assist in proof of the facts in issue by reference to impermissible tendency reasoning.

Item 50 is an exchange of SMS messages on 30 August 2012. I am satisfied that this evidence is a relevant circumstance providing proper context for the charged events and like the reference to the website in item 7, this item is admissible evidence.

Conclusion

Out of necessity this ruling is based upon those parts of the transcripts from the surveillance devices that were referred to in argument. The parties have anticipated the process of editing the audio files and the transcripts of them will need to be undertaken. Because the conversations can range across different topics, the classifications that I have adopted for the purpose of explaining my reasons does not provide an exact guide to which parts of each transcript are admissible. For example, it remains open to the parties to exclude substantial parts, if not all, of the conversations recorded that were not referred to in argument. On the other hand the parties may agree that some innocent conversation might remain as appropriate context for the relevant aspects of that conversation. Overall, I would expect that these reasons provide a basis for resolving the issues that will arise on completing the editing task. To the extent that they do not provide that assistance, liberty to apply is reserved.

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[2015] VSC 641

17 NOVEMBER 2015 (Revised 18 November 2015)