R v Karabegovic (Ruling No. 5)
[2016] VSC 213
•4 MAY 2016 (revised 6 May 2016)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2013 0066
| R |
| v |
| ADNAN KARABEGOVIC |
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JUDGE: | JOHN DIXON J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 3 MAY 2016 |
DATE OF RULING: | 4 MAY 2016 (revised 6 May 2016) |
CASE MAY BE CITED AS: | R v KARABEGOVIC (Ruling No. 5) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 213 |
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CRIMINAL PROCEDURE – Terrorism offence involving possession of single magazine edition –
Preliminary application for exclusion of evidence relating to other editions of the same magazine not subject of the charge – Proposed use by prosecution at the trial of information found in other editions of magazine in the possession of the accused – Content of prosecution opening considered – Whether probative value outweighed by danger of unfair prejudice to the accused – Discretionary considerations – Ruling given – Evidence Act 2008 (Vic) s 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Rapke QC with Ms R Sharp | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr J McMahon with Dr G Boas | Stary, Norton, Halphen Pty Ltd |
HIS HONOUR:
The trial of the accused on one count of possession of a thing in connection with preparation for an act of terrorism while knowing of the connection, contrary to s 101.4(1) of the Criminal Code Act 1995 (Cth), is to commence later this week. The thing in question is a digital copy of a magazine that I will refer to as ‘Inspire 9’.
As a preliminary issue, I was asked to rule on the use to be made by the prosecution at the trial of information found in other editions of Inspire magazine, allegedly in the possession of the accused, but not the subject of the charge. Two questions were posited. Firstly, should a previous edition which I will call ‘Inspire 8’ be before the jury in its entirety and, secondly, to what extent should the prosecution refer to the content of other editions of the magazine that will not, by agreement, be given to the jury. In other words, the issue was what limits should be put on the Crown‘s use of the accused's possession of five editions of Inspire magazine other than Inspire 9, namely 1, 2, 5, 6 and 8, which are not the subject of the charge.
In Ruling No. 3 in this matter,[1] I held that the accused’s possession of these five other editions of Inspire magazine was relevant, but I remarked that this should not be taken as permitting the full content of the editions numbered 1, 2, 5, 6, and 8 to be tendered as exhibits before the jury. Some issues have since resolved co-operatively between the parties, but differences remain in the form of the two issues stated above. The Crown proposes, along with Inspire 9, to have a full copy of Inspire 8 in the Jury Book and before the jury as an exhibit and to acquaint the jury in a very general sense with the content of the other magazines, so that the jury understands the nature of the magazines that the accused was accessing or possessing. There are multiple references to the other magazine editions in intercept transcripts that will form a large part of the prosecution evidence at trial.
[1]R v Karabegovic [2015] VSC 614R (‘Ruling No. 3’).
The accused sought a ruling precluding the Crown from placing Inspire 8 in the jury book and limiting what the Crown is permitted to say to the jury about the contents of Inspire 1, 2, 5, 6 and 8, assuming that the latter is ruled out of the jury book. The accused does not object to a general statement about the content of issues 1, 2, 5, 6 and 8 being made to the jury but understood there will be some specific detail about the content of those magazines, which he contends will be a source of unfair prejudice. The accused submitted that the Crown should be confined to referring only to the accused’s possession of these issues of Inspire and to the fact that the content of each issue is of a similar nature to that of Inspire 9.
The accused submitted that s 137 of the Evidence Act 2008 applied as the danger of unfair prejudice outweighs the probative value of these items of evidence in this particular trial.[2] That section provides that 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. The accused also relies on the residual Haddara v R[3] common law discretion that a court can exclude otherwise admissible evidence on the basis that a fair trial cannot be had.
[2]Relying on Dupas v R (2012) 40 VR 182, 200 [75], [77], 227 [175], and Dietrich v The Queen (1992) 177 CLR 292, 363.
[3](2014) 43 VR 53.
In Haddara v R, Redlich and Weinberg JJA said that:[4]
Whether or not the first and second discretions described above are better viewed as specific illustrations of a general discretion, we consider it to be clear that there is a general discretion which inheres in a trial judge to exclude admissible evidence in order that the accused receive a fair trial. That general discretion is an indispensable tool if a trial judge is to have the capacity in all circumstances to discharge their overriding duty of ensuring that the accused receives a fair trial. An examination of authority strongly supports this conclusion.
[4]Ibid, 59-60 [16].
The first discretion referred to by their Honours is where the prejudicial effect of the evidence outweighs its probative value, which is now reflected in the mandatory obligation to exclude such evidence under s 137 of the Act. The second discretion arises where it would be unfair to use an admission or confession in evidence against the accused. The discretion, known as the Lee discretion,[5] is generally similar to the discretion under s 90 of the Act.
[5]R v Lee (1950) 82 CLR 133.
The particular occasions for the exercise of the common law discretion will be unusual since admissible evidence will not commonly attract the exercise of the discretion. The primary consideration may be that identified by McHugh J in Ridgeway v The Queen,[6] when he said:
Ordinarily, questions concerning unfairness to the accused in admitting evidence are dealt with under the general discretion of a judge in a criminal trial to exclude evidence whose probative value is outweighed by its prejudice to the accused’s defence.
[6](1995) 184 CLR 19, 83.
On the present application, the accused did not put any submission identifying a prospect of unfair use of the relevant evidence that extended beyond the ordinary application of s 137.
I consider that the accused’s application is to be resolved by the application of s 137 alone and it is unnecessary to consider the Haddara discretion. If otherwise admissible evidence is not excluded because its probative value is not outweighed by the danger of unfair prejudice to the accused, on the present application the accused has not demonstrated any other basis for concern that he might not receive a fair trial.
The Crown submitted that the balance clearly lay in favour of its proposed use of the other editions of the magazine. They were highly probative of the Crown case, and the restricted manner in which they were to be used effectively neutralised any issue of unfair prejudice to the accused. The prosecution noted references in the intercepted conversations[7] to the other Inspire issues in five places and questions and answers about those issues of Inspire in the Record of Conversation and the Record of Interview.
[7]See Items 14, 28, 33, and 50 referred to in Ruling No. 3 and the 18 May conversation that was not in issue in Ruling No. 3.
The accused does not put his possession of these particular items in issue and I have ruled that the evidence about possession of these Inspire editions was relevant both to the accused's state of mind[8] and as providing context.[9] The possession evidence will be that issues 1, 2, 5, and 6 were written to the accused’s USB and issues 5, 6, 8, and 9 were opened on the accused’s laptop. The Crown will not be able to point to any evidence that issues 1 and 2 were opened by the accused on his computer or from his USB.
[8]Ruling No. 3, [238]‑[239].
[9]Ruling No. 3, [240].
The question was whether there will be a real risk that the jury could misuse this evidence in some way unfair to the applicant.[10] That assessment is not made by considering this evidence in isolation.[11] In Dupas v The Queen,[12] the Court of Appeal held that the application of s 137 of the Act involves three steps: firstly, an assessment of the probative value of the evidence; secondly, an assessment of the danger of unfair prejudice to the accused; and, thirdly, a weighing of the probative value of the evidence with any danger of such prejudice. If the latter outweighs the former, the court must refuse to admit the evidence. The issue is to be resolved by reference to the particular facts, the character of the evidence in issue, the issues to be proved and the nature and strength of the potential prejudice.
[10]R v BD (1997) 94 A Crim R 131, 151; approved by McHugh J in Papskosmas v The Queen (1999) 196 CLR 297, 325 [91]–[92]. See also PCR v The Queen (2013) 279 FLR 257, 262 [38]; and Bray (A Pseudonym) v The Queen [2014] VSCA 276, [68].
[11]Aytugrul v The Queen (2012) 247 CLR 170, 185–186 [30].
[12](2012) 40 VR 182.
To undertake this assessment, it was necessary to understand how the Crown proposed to use the evidence. To that end, the learned Crown prosecutor first stated what was proposed to be said to the jury in opening with regard to issues 1, 2, 5, and 6 as follows:
The first English language edition of Inspire was published in the middle of 2010. It was called the summer 2010 edition. It carried a letter from the editor in which he wrote, “We present the first magazine to be issued by the Al Qaeda organisation in the English language”. In that issue there was an article in the open source jihad section; [The learned Prosecutor interpolated here to say that that he would earlier have explained that these magazines contain a section called “Open source jihad”]. In that issue there was an article in the open source jihad section entitled, “Make a bomb in the kitchen of your mum”, which described how to make, “An effective bomb that causes damage to the enemy from ingredients available in any kitchen in the world”. The main qualities of the bomb were said to be, “It's ingredients are readily available. Buying these ingredients does not raise suspicion. It is easily disposed of if the enemy searches your home. Sniffing dogs are not trained to recognise them as bomb making ingredients. In one or two days the bomb could be ready to kill at least ten people. In a month you may make a bigger and more lethal bomb that could kill tens of people”.
In the same issue of the magazine was an article entitled, “What to expect in jihad”, which described what a person coming to the Arabian peninsula to fight in the cause of Islam could expect and how to prepare for jihad. It encouraged such a person to be able to speak the local language, to bring a companion to assist in “staying steadfast and remaining patient” and gave advice on what to bring and not to bring and how to blend in culturally. The article appealed to those who aspired to be guerrilla fighters and gave advice on what to expect in mujahedeen bases.
In the fall 2010 issue, there was an article entitled, “What to expect in jihad” which described what a person coming to the Arabian peninsula to engage in jihad could expect in terms of the location of bases, life in such bases, living arrangements and how to avoid law enforcement detection. In the open source jihad section of that issue of Inspire there was an article which described how to adapt a four wheel drive or other vehicle by welding blades to the front of the vehicle and using the vehicle to drive through crowded areas striking as many people as possible. It encouraged Muslims to “wake up and pay back America for what is due to it”. “It is a simple idea and there's not much involved in its preparation. All what is needed is a willingness to give one's life for Allah”. It was suggested that what was described as “the ultimate mowing machine” should be used in the most crowded and narrow locations “because it gives less chance for the people to run away”. The article also counselled the terrorist to carry firearms, “so that you may use them to finish off your work if your vehicle gets grounded during the attack”. It was said that the mowing machine could be implemented in countries like Israel, the US, Britain, Canada, Australia, France, Germany, Denmark and Holland.
The next article in that issue was entitled, “Tips for our brothers in United States of America”. It provided guidance on how to avoid law enforcement, how to choose an appropriate target, how to gather information and how to encourage people with a science background to develop a weapon of mass destruction such as nerve gas, lethal toxins and poisons.
In the spring 2011 issue, in the open source jihad section there appeared an article entitled “Training with the AK” which taught how to use an AK47 assault rifle. There was also an article written by Ahmen Al Kazaby who took over the leadership of Al Qaeda after the death of Bin Laden entitled “The revolution, guidance and clarity”. The article extolled the virtues of the violent overthrow of what Al Kazaby called corrupt regimes. He wrote, “Force must be an element in change and there must be work to achieve its means. Whether this force will be put into practice in the form of a military coupe or in the form of a mass popular uprising or mass public disobedience to confront the corrupt and corruptive government, or in the form of guerrilla warfare or in a form of armed political resistance or in other forms, whatever its form, method and means, force remains a necessary element for bringing about change when confronting the alliance of evil and repression to which I have referred. After all paths the peaceful change will be blocked”.
In the same edition of the magazine there was an article entitled, “What to expect in jihad" which discussed Mujahedeen training camps, how they are conducted and what to expect during training.
The summer 2011 issue of Inspire contained a continuation of the article on training with an AK47 rifle. The article which appeared in the open source jihad section taught, “the important shooting stances that the Mujahedeen adopt”. It stressed the need for accurately while shooting and concluded with the hope that, “this series benefited you and will help you better in fighting the enemies of Allah”. Interestingly, the cover page of that section of the magazine had a large picture of the Sydney Opera House on it, so the contemporary relevance of these magazines to Australia should not be overlooked.
Later in the same issue was an article entitled “making acetone peroxide”, which was described as a, quote, “very popular explosive because it's easy to manufacture and its ingredients are widely available”. It was described as being a, quote, “primary explosive” which is used for detonating main charges.
In the fall 2011 issue of Inspire, being Inspire issue 8, the open source jihad section taught how to use a handgun and contained photographs and instruction on the use of such a firearm
The next article in the open source jihad part of the magazine gave instruction in the use of remote controlled detonation and taught how to build a remote controlled detonator. It explained its advantages over detonation by a clock wired to a bomb. With a clock, “When the time you choose is hit by the hour hand the bomb detonates. This is ideal if you are trying to get as far away as possible from the scene. Its down side is that it is completely oblivious to the situation on the ground that may require an immediate or delayed detonation. The evident solution to that is to make the human being in control of the timing”.
There was also an article purporting to be a scholarly discussion on, “Targeting the populations of countries that are at war with the Muslims”. It concluded, “These statements of the scholars showed that it is allowed to poison or use other methods of mass killing against disbelievers who are at war with us. The populations of the nations that are at war with the Muslims, especially those who are at the lead such as the US, Britain and France, should be targeted by the Mujahedeen in operations that employ explosives, poisons, firearms and all other methods that lead to inflicting the greatest harm on them, and this is among the greater deeds a Muslim can worship Allah with in our day and time”.
Secondly, the Crown pressed for inclusion of Inspire 8 in the jury book because of the content of the conversation between the accused and his brother Nihad Karabegovic on 18 May 2012. That conversation is central to the prosecution’s case. I am satisfied that there is a close correspondence between Nihad’s contribution to the conversation and the feature article in Inspire 8, from which the jury could be persuaded that the accused’s brother had read Inspire 8, and the feature article in particular. The article was mentioned in the prosecution opening. It is entitled ‘Targeting the populations of countries that are at war with Muslims’, authored by Sheikh Anwar al‑Awlaki. The Crown will also say in opening that this article purports to be a scholarly article on the permissibility of targeting non‑combatants - civilians, women, children, men who are not involved in fighting - if these people form part of populations of countries that are deemed to be at war with Muslims, and as the centrepiece of this particular magazine, the feature article espouses on the legitimacy, from an Islamic point of view, of targeting civilian populations. That the article is a central message of Inspire 8 appears from a ‘letter from the editor’ that promoted this particular article on the question of killing civilians in the operations of Mujahedeen.
In my view, the feature article is highly probative evidence for the jury in assessing the accused’s state of mind on 18 May 2012 as revealed by the conversation he had with his brother on that date. His state of mind is a relevant element of the offence charged in several different ways. Further, although it would be open for the jury to conclude that the accused had not read Inspire 8 on or before 18 May, the Crown contended that it would be open for the jury to conclude that the accused had access in some way prior to this conversation to Inspire 9, by reason of his display of his knowledge of the contents of Inspire 9, both in terms of its content about bushfires and about bombs.
It is highly probative because it is important for the jury to identify the state of the accused’s knowledge at various points of time and the path of development of his knowledge so there can be no misunderstanding about his possessing, and his knowledge, of Inspire 9. The Crown submitted, and I accept, that this can only be properly done if the jury have access to Inspire 8 because the ideas it conveys were the subject of this discussion and the jury will need to analyse the conversation against the content of the feature article in the magazine. The fact that Inspire 8 and 9 were uploaded to the accused’s computer at the same time, while significant, does not derogate from the significant probative value of the feature article in Inspire 8 as a critical and proper tool to analyse what is being discussed in a central conversation in the trial, and in order to assess the state of knowledge of the accused at this particular point of time.
I accept the further submission of the Crown that the feature article in Inspire 8 has other relevance. The Crown must prove a continuing state of mind over a period of some months, and in that context evidence of the accused’s desire to obtain, to access, to possess, and some cases to read, analyse, and discuss the material and the ideas conveyed is probative of that continuing state of mind. The jury will have other evidence that the accused discussed lighting a bushfire to cause economic damage. The fact that on 18 May 2012, at the start of the period charged in the indictment, the accused was engaging in theological discussion about the permissibility of targeting civilian populations, where the sort of damage which may result is of a kind that the Crown is required to prove relevant to the concept of the ‘terrorist act’ in question – by causing serious harm to innocent people, physical harm to persons, damage to property or a person's death – is strongly probative of the Crown’s proofs. That this discussion occurred in the context of his possession later in the relevant period of a magazine in which these very things were discussed will be significantly probative evidence in the trial in respect of the accused’s state of mind.
The Crown must prove both knowledge and intention; for example, an intention of advancing a political, religious or ideological cause that is identified as the pursuit of violent jihad. The bare fact of possession of other magazines, with the jury told the material is similar to that in Inspire 9, would deny the jury a highly probative piece of evidence in the circumstances. That limitation would prevent the Crown from conveying the nature of the material in these magazines and why it was of such interest to the accused. The jury are entitled to know such matters to evaluate the circumstantial case about the accused’s state of mind.
The evidence will be that the accused told the police in his interview that he had read the magazines. For example, he said that he had read Inspire 6, describing it as the magazine which came out aroung the time that Osama Bin‑Laden was killed. The Crown case will be that the accused said to the police when asked about his possession of this material, that he had read some of the issues and had a general understanding of their contents, but he appreciated that the material wasn't appropriate and he had attempted to, and thought he had in fact, deleted it. With evidence of the accused’s access to the content of these magazines, the Crown could meet a suggestion that the accused merely had some sort of ephemeral transitory interest or that he was just a young man who was given to speaking brazenly. The high probative value of the references to the other magazines in a circumstantial case is, as I have said, that the jury is entitled to know what it was about these magazines that encouraged the accused to try and get them, possess them, hold on to them, discuss them and then most importantly, to try and destroy evidence that he had them.
In Dupas v The Queen, the Court of Appeal said:[13]
The Evidence Act does not define the term “unfair prejudice”. Consistently with the common law, it has been interpreted to mean that there is a real risk that the evidence will be misused by the jury in some unfair way. It may arise where there is a danger that the jury will adopt “an illegitimate form of reasoning” or “misjudge” the weight to be given to particular evidence. An inability to test the reliability of evidence may carry with it the danger of such misjudgment. Evidence is not unfairly prejudicial because it inculpates the accused.
[13](2012) 40 VR 182, 227 [175] (citations omitted).
Thus in some cases unfair prejudice could arise because of the risk that the jury might use the impugned evidence for an unintended and illegitimate purpose, while in others the emotions of the jury might be unnecessarily aroused. The accused submitted that the material in the other Inspire issues was prejudicial in the sense of being highly emotionally charged and drew by analogy a comparison with gruesome photographs produced to a jury in a murder trial. He also submitted that putting Inspire 8 in the jury book along with Inspire 9 raised its profile to that of Inspire 9, in circumstances where the accused was not charged with an offence in respect of Inspire 8. As such, Inspire 8 would be disproportionately emphasised and there was a risk that the jury could misjudge the weight that it deserved. A further risk of prejudice through impermissible use of the evidence would then arise that would not be alleviated by properly instructing the jury not to engage in propensity reasoning when using the evidence from the other Inspire issues. The risk of prejudice was identified as the probability of impermissible use of the evidence based on the other issues by engaging in propensity reasoning, a risk that would be exponentially raised by the detail that the Crown proposed to provide about Inspire 1, 2, 5, and 6 and the inclusion of the full text of Inspire 8.
The Crown sought to meet this submission by contending that visually the evidence did not reach the heights of prejudice suggested by comparison with gruesome crime scene pictures. It submitted that it was taking a responsible position on the other four editions of the magazine by limiting itself to only telling the jury in a general way what is contained in them. On the other hand, as I have stated in the context of assessing probative value, the Crown contended that Inspire 8 fell into a special category, both by reason of its linking to Inspire 9 and because of its significance in the 18 May conversation. Finally, the Crown submitted that the confined description of the content of the other Inspire issues proposed by the defence would not be useful for the jury and there was no prejudice associated with telling the jury the matters that are outlined earlier in these reasons.
I consider that the accused’s contentions in respect of prejudice gave insufficient weight to the expectation that a jury will be diligent in applying as best they can a judge’s directions about the uses that can, and cannot, be made of evidence, a matter that is discussed at some length in Ruling No. 3. Appropriate warnings about the use of evidence are generally likely to remove any real risk that a jury will misjudge the weight to be given to a piece of evidence.
Bearing all of these considerations in mind, I have concluded that the probative value of the evidence as discussed above substantially outweighs any improper prejudicial effect that it might be said to have. That said, the proper balance between probative value and prejudicial effect requires two adjustments to what the Crown proposes.
First, I am unpersuaded that the two issues of Inspire (No’s. 1 and 2) that the Crown cannot establish were ever opened by the accused on his computer or from his USB carry the significant probative value for which the Crown contends. The probative value of the references to those issues in the context of the offence charged is weak or non-existent and is outweighed by the danger of unfair prejudice to the accused through impermissible reasoning by reference to tendency. The evidence about a bomb made in ‘the kitchen of your mum’, or what to expect in jihad when going to the Arabian Peninsula to fight in the cause of Islam does not have the probative value contended for by the Crown and is not linked in any significant way into the prosecution’s circumstantial case.
In the second issue, the reference to a modified four-wheel drive vehicle does raise concepts that can be likened to the gruesome crime scene pictures analogy, and it is a possible terrorist action that is not connected in any way to the accused or the circumstances of the charged offence. Again, it is remote from the circumstantial case being put by the Crown and of no, or limited, probative value. A like comment applies to the other article selected by the Crown from that issue. I would permit the Crown to explain the concept of open source jihad as it is employed in Inspire magazine but as I understood the learned Prosecutor, he is able to do so otherwise than by reference to Inspire 1 and 2. Accordingly, in respect of the references to Inspire issues 1 and 2 as outlined to me by the prosecution and set out above, by the application of s 137, that evidence is excluded. The prosecution is confined to the general reference to those issues not objected to by the accused.
The second issue is that I am also unpersuaded that the entirety of Inspire 8 can carry the significant probative value for which the Crown contended. The Crown’s submission was specifically based on limited parts of that edition of the magazine and while I accept that those parts of Inspire 8 have strong probative value, the argument simply does not extend to all other parts of that issue. I am persuaded that the danger of unfair prejudice through impermissible reasoning from the balance of Inspire 8 arises because a proper use for those parts of the magazine was not identified. The reproduction of Inspire 8 in the jury book is to be confined to the front cover, page 3 and pages 40 to 47 inclusive, and the references to Inspire 8 should otherwise be limited to what is proposed to be stated about it by the Crown in opening as set out above.
Subject to these two adjustments to the manner in which this material is used, the accused’s application is otherwise refused.
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