R v Karabegovic (Ruling No. 6)
[2016] VSC 257
•17 MAY 2016 (revised 24 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: | 16 MAY 2016 |
DATE OF RULING: | 17 MAY 2016 (revised 24 May 2016) |
CASE MAY BE CITED AS: | R v KARABEGOVIC (Ruling No. 6) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 257 |
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CRIMINAL LAW – Evidence – Incriminating conduct – Post-offence conduct – Prosecution reliance on acts and statements by accused – Whether reasonably capable of being viewed as evidence of incriminating conduct – Jury Directions Act 2013 ss 18, 20.
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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 Crown has served notice under s 19(1) of the Jury Directions Act2015 that it intends to adduce evidence of conduct that it proposes to rely on as evidence of incriminating conduct. The evidence falls into two categories. First, six answers to questions asked of the accused during his record of interview are said to be lies. Secondly, there are four instances of conduct by the accused, namely that on two occasions he discusses deleting material from a computer, on one occasion he discusses hiding a USB in his car, and on one occasion he deleted editions 8 and 9 of Inspire magazine from his computer.
The Crown case closed on 16 May 2016 and defence counsel announced that they would be calling no evidence.
The principles that govern this application are found in ss 19 – 25 of the Jury Directions Act2015, and I have had regard to the principles stated in the following cases - Edwards v R (1993) 178 CLR 193, The Queen v Russo (2004) 11 VR 1 and DPP v Scriven (No. 4) [2015] VSC 220.
I will state briefly the principles that I will apply. I must determine whether on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by a jury as incriminating conduct.
Post-offence conduct is a lie or other act or omission after the offence. Post-offence conduct is incriminating if it amounts to an implied admission by the accused of having committed an offence, or an element of an offence, or of negating a defence. In this particular application, I am concerned with the implied admission of an element of the offence.
A lie must be clearly demonstrated to be a deliberate and proven lie of a material nature.
Dealing with the first of the two categories of evidence of post‑offence conduct, the first lie is said to be the accused’s answer to question 175 of the record of interview appearing at p.21 of the transcript. In essence the question was, ‘Have you ever discussed making home‑made explosives or things like that with any other person?’ and the essence of the answer was, ‘No, no, no, this is not myself’.
The Crown submits that the jury could, when comparing this answer with the discussion that the accused had with his brother Nihad on 18 May (appearing at pp.210‑211 of the intercept transcripts), conclude that this was a deliberate lie. On the basis of a careful textual analysis of the question and answer and comparison with the conversation recorded in the transcript, a jury might not be satisfied that the accused was discussing making home‑made explosives in that conversation. He may have been referring to the content of the article that the brothers had been discussing. In context, I am not persuaded that his answer is reasonably capable of being viewed as a deliberate lie. Even if I were wrong about that, I am also not persuaded that the only explanation is that he believed that he was guilty.
The defence submitted, and I agree, that the context reveals that the intercepted conversation had occurred four months earlier with the relevant words forming a small part of that conversation. The questioning of the accused was indirect and used vague terms. It was not contemporaneous with the conversation said to establish the deliberate lie, and there was no follow-up questioning to clarify whether the accused was fully comprehending that the federal agent would suggest that several months earlier the accused had had a conversation in a car with his brother about making explosives that related to an article in Inspire magazine about making a bomb. In this context it is clearly open that the accused may not have recalled the discrete conversation that it is now put is inconsistent with his answer. He may have told an untruth inadvertently or he may not have ever considered the conversation to be about making a bomb.
Accordingly, leave is refused to rely on the first alleged lie.
The second answer in the record of interview said to be a lie was in response to question 527, appearing at p.60 of the transcript. In substance the question was, ‘But have you had conversations where you were trying to form your opinion where you discussed the pros and cons of is it allowed, or is not, to kill or to injure people?’ The substance of the accused's answer was, ‘No, it was taught at Al-Furqan not to discuss such issues, I don't have this kind of knowledge’.
The Crown submitted that pages 200‑211 of the intercept transcripts demonstrate that the accused had precisely that discussion with his brother Nihad and his response, a denial, is a deliberate lie. Its character may be thought to be evident by reference to two matters by which the accused seeks to justify his denial, firstly, regarding what he was told at Al-Furqan and, secondly, that he did not have this kind of knowledge.
The intercept transcripts clearly demonstrate his response to be untrue. Although the conversation predominantly concerned Nihad’s statement of the substance of a sermonising article found in Inspire 8, the accused was not simply a passive listener and the conversation was of some substance. It is open to the jury to conclude that the reference to family members concentrated on his brother, rather than his parents or his wife. The jury could rationally conclude that his answer was a deliberate lie.
The lie is material for the reason that it is probative in respect of his intention in carrying out a terrorist act, particularly his contemplation of ‘causing a person’s death’ or ‘endangering a person’s life’ and of his adherence to his religious values. These matters go to his motivation for the terrorist act alleged. The defence submitted that the questioning was clumsy and that the proposition to which the accused responded was put in a prolix and vague manner. The defence also suggested that it was a small portion of a conversation occurring at around midnight six months earlier. I do not accept the defence submission in respect of this particular lie.
The circumstances relevantly include many hours of intercepted conversations between the accused and his brother as well as the fact that the accused was informed that his parent’s home where his brother had resided was being searched simultaneously with his own. It is open to a jury to conclude that the accused was, in answering that question, sensing that a true answer to that question would be incriminatory and that the evidence of such a conversation with his brother would have implicated him. It would be reasonably open to the jury to conclude that lying by denying that discussion about killing and injuring people could only be explained by the accused having contemplated carrying out a terrorist act involving that consequence which is a belief which is an element of the offence.
I will permit the prosecution to rely on the second answer said to be a lie as evidence of incriminating conduct.
The third lie was said to be the accused’s answers to questions 776‑778 of the record of interview, at transcript pages 87‑88. The three questions are effectively an ongoing answer to question 776 which was, ‘Have you ever discussed Inspire with anybody?’, with the accused’s effective answer over the three questions: ‘No, I don't talk to people about these issues because I don't trust their judgment. Even people that are really close to me, not my wife my parents or my brother – it is not part of my thinking’.
The Crown says that four separate intercepted conversations demonstrate that this response was a deliberate lie.
I am not persuaded to that conclusion by the conversation first referred to and appearing in the intercept transcript at page 147. However, I do agree that the conversations that are set out as the second conversation at transcript pages 199‑212, the third conversation at transcript pages 228‑229 and the fourth conversation at transcript pages 258‑259 could demonstrate to a jury that the accused’s answer to that series of questions was a deliberate lie.
I accept the Crown's submissions in relation to the materiality of that lie. The Crown submitted that this lie was circumstantial evidence relevant to the question of whether the accused’s possession of Inspire 9 was connected with the terrorist act. The jury could regard the lie as a circumstance that showed the accused’s interest in and knowledge of the contents of the magazine, showing that he was more likely to have read the magazine, having obtained it. The circumstance was capable of supporting intentional possession of the magazine.
In my view it would be reasonably open to the jury to conclude that lying, by denying that he had discussed Inspire magazine with Nihad, could only be explained by the accused having an interest in and knowledge of the magazine and that he was accordingly likely to have read it and to have possessed a copy of it in connection with the contemplated act of terrorism.
There is no innocent explanation of this denial apparent and I reject the defence submissions in respect of this particular lie. In my view, in denying his conversation with his brother, the accused was acting as if he did not have that interest or that intention, when to admit to the conversations with his brother is what an innocent person would have done in the circumstances. I also take into account the whole of the evidence as to how he obtained Inspire 9 from his brother Nihad. I am not persuaded that it was an inadvertent lie.
The prosecution may use the third answer said to be a lie as evidence of post conduct incriminatory evidence.
The fourth lie was said to be the accused’s answer to question 780 in the record of interview, appearing at p.88 of the transcript. The essence of the question was, ‘Have you ever discussed the legitimacy of attacking non‑combatants?’, to which the accused’s answer was, ‘No, I have done research and if certain people are in that category you cannot do something that's impermissible’.
In relation to this answer, the Crown refers to three intercepted conversations at transcript pages 233, 275, and 277. In my view, those conversations cannot show that the particular answer was a deliberate lie. The Crown also relies on the conversation at transcript pages 201‑205, as capable of being used by the jury to characterise the answer as a deliberate lie. This is in effect substantively the same issue as arose in relation to the second alleged lie. In respect of this lie, I reject the defence submissions. The jury could reasonably conclude that admitting to the conversations with Nihad would have implicated the accused, and his denial and the implausible explanation for it, implied he well understood what was the evidence against him. In telling the lie he was acting as if it was not his intention to carry out a terrorist act and was not motivated to do so. I will permit the fourth alleged lie to be used as evidence of incriminating conduct.
The fifth answer said to be a lie was in response to question 785, at p.88 of the record of interview transcript. The question was in essence, ‘Have you ever discussed making an explosive device with another person?’, to which the accused’s answer was: ‘No’. For the same reasons as I have given in relation to the first alleged lie, I will not permit this conduct to be used as evidence of post‑offence incriminating conduct.
The sixth answer said to be a lie was in response to question 786, at page 89 of the intercept transcripts. In substance the question was, ‘Have you ever discussed making a chemical bomb with another person?’, with the accused’s answer: ‘No, this is silly’. Again, this is essentially the same set of circumstances as with the first alleged lie but further, the discussion at pages 210‑211 of the intercept transcripts is not a discussion about making a chemical bomb. In fact the accused rejects the notion of making a chemical bomb. He says, ‘leave that to the professionals’ and he does not embark on any discussion about doing so himself. Accordingly, leave is refused to rely on this answer as evidence of post-offence incriminating conduct.
The second category of conduct concerns four pieces of evidence about conduct concerning the deletion of material.
The first piece of evidence is a conversation that occurred on 19 August 2012, appearing in the intercept transcripts at page 289. That conversation deals with Mr Elkassaby’s actions. The conduct is not material to the accused's possession and it cannot be concluded that the only reasonable inference is that Inspire 9 was still on the accused's laptop at that time. I will not permit that conduct to be used as evidence of post‑offence incriminating conduct.
The second conversation, also on 19 August (appearing at page 293 of the transcript), is not a conversation about a deletion by the accused, but is an observation about surveillance with the accused explaining why he put his computer in the car. The Crown did not press its application for leave to use evidence of this conduct as evidence of post‑offence incriminating conduct, and I need say no more about it.
The third conversation was about the USB with the accused stating in essence, ‘I'm keeping it in the car so I didn't have it in the house’. The prosecution reasoned in a similar way in respect of this item of evidence but the difference on this occasion is that Inspire 9 was not on the USB and, in my view, this particular evidence cannot go to the possession element of the offence and is not material in the relevant sense. I will not permit that conduct to be used as evidence of post‑offence incriminating conduct.
The final matter is the conduct referred to in paragraph 6 of the Notice, being the deletion of Inspire issues 8 and 9 from the accused’s laptop computer and the alleged attempted deletion of other copies. The prosecution contends that the only reasonable inference from deletion is that the accused was aware that he was in possession of the magazine, that is, that it was an intentional possession. I do not see that leave is required for the use of this evidence in this sense because this evidence is not post‑offence conduct. It is conduct that marks the conclusion of the period of offending but does not post‑date it. The fact that the accused deleted Inspire 9 is relevant to the issue of intentional possession, but it does not permit an inference that he acted after offending in a manner indicative of guilt in relation to an element of the charged offence. It is not an implied admission that incriminates the accused. His conduct can be explained, as he has done, by stating that it appeared that it was inappropriate material to have in his possession. Accordingly, leave is refused to rely on that particular conduct in the sense sought by the prosecution as post‑conduct incriminating evidence.
Accordingly in summary, leave is granted to the prosecution to rely on the evidence specified in paragraphs 2(b), 2(c), and 2(d) of the Notice and leave is refused in respect of paragraphs 2(a), 2(e) 2(f), 3, 4, 5 and 6 of the Notice.
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