R v Khalid (No. 2)
[2015] NSWSC 1921
•18 December 2015
|
New South Wales |
Case Name: | R v Khalid (No. 2) |
Medium Neutral Citation: | [2015] NSWSC 1921 |
Hearing Date(s): | 9, 10 and 11 November 2015 |
Date of Orders: | 18 December 2015 |
Decision Date: | 18 December 2015 |
Jurisdiction: | Common Law |
Before: | Bellew J |
Decision: | The notice of motion is dismissed. |
Catchwords: | CRIMINAL LAW – Evidence – Where police obtained two search warrants – Where warrants were directed to a nominated officer – Where that officer purported to “sign over” each warrant to another officer – Where officers failed to comply with relevant statutory provision in doing so – Whether statute reflected an intention on the part of the Parliament that there be strict compliance with such provision – Whether statute reflected an intention on the part of the Parliament that the warrant would be invalid in the event that there was non-compliance with such provision – Necessity to strictly construe legislation governing the issue of search warrants – Where evidence did not permit a finding of agency existing between one officer and another |
Legislation Cited: | Court Suppression and Non-publication Orders Act 2010 (NSW) |
Cases Cited: | Bunning v Cross (1978) 141 CLR 54 |
Category: | Principal judgment |
Parties: | Crown - Regina |
Representation: | Counsel: |
File Number(s): | 2014/376821 |
Publication Restriction: | Nil |
INTRODUCTION
Sulayman Khalid (“the accused”) has pleaded not guilty to an indictment alleging an offence contrary to s 101.4 of the Criminal Code 1995 (Cth) (“the Code”) in the following terms:
“On or about 18 December 2014 at Sydney, in the State of New South Wales, did intentionally possess a thing, namely handwritten documents knowingly connected with the preparation for a terrorist act knowing of that connection.
Particulars of the terrorist act (or acts)
The terrorist act (or acts) was (or were) to involve an action or threat of action involving guerrilla warfare and/or attacks on institutions (for example the AFP, ASIO) and/or the use of weaponry was (or were) to done or threatened:
a) With the intention of advancing a political, religious or ideological cause; and
b) With the intention of:
i. Coercing, or influencing by intimidation the Government of the Commonwealth or a State, Territory or foreign country or a part of a State, Territory or foreign country; or
ii. intimidating the public or a section of the public; and
c) In circumstances where the action, if carried out, would:
i. Cause serious harm that is physical harm to a person; and/or
ii. Cause serious damage to property; and/or
iii. Cause a person’s death; and/or
iv. Endanger a person’s life, other than the life of the person taking the action; and/or
v. Create a serious risk to the health or safety of the public or a section of the public; and
vi. Seriously interferes with, seriously disrupts, or destroys, an electronic system including but not limited to:
a) An information system;
b) A telecommunication system; or
c) A financial system.
d) In circumstances where the action to be done or threatened would not be advocacy, protest, dissent or industrial action, or alternatively would not be advocacy, protest, dissent or industrial action of a kind not intended to:
i. Cause serious harm that is physical harm to a person; or
ii. Cause a person’s death; or
iii. Endanger a person’s life other than the life of the person taking the action; or
iv. Create a serious risk to the health or safety of the public or a section of the public.
v. Seriously interferes with, seriously disrupts, or destroys, an electronic system, including but not limited to:
d) An information system;
e) A telecommunication system; or
f) A financial system.”
By notice of motion filed on 14 October 2015 the accused seeks the following orders:
(1)A declaration that two search warrants issued on 18 December 2014 are each invalid.
(2)An order excluding the entirety of the evidence obtained pursuant to the execution of each of those warrants.
(3)An order excluding evidence of what is referred to as the “SBS Insight episode” relied upon by the Crown.
(4)An order excluding the admission of “YouTube” footage relied upon by the Crown.
THE CROWN CASE
By reference to a statement of facts tendered by the Crown (without objection) on the present application, the Crown case may be summarised as follows.
“Operation Appleby” was an investigation into a group of people suspected of being involved in terrorist activities in Australia. A number of members of the group, including the accused, were the subject of physical and electronic surveillance over a lengthy period of time which commenced in about June 2014.
Between about June 2014 and December 2014 the accused was seen to be in regular contact with Issac Majzoub (“Majzoub”). A large number of telephone calls and text messages between the accused and Majzoub were intercepted, during which they repeatedly discussed achieving martyrdom. Some of their communications were coded, however the Crown seeks to infer that their discussions centred around the commission of terrorist acts, either in Syria or in Australia, using firearms. On the Crown case, the evidence demonstrates that the accused had a considerable degree of influence over Majzoub.
On 18 December 2014 a search warrant was executed at the accused’s home at 13 Berry Street, Regents Park (“the Regents Park premises”). In the course of that search police obtained a number of documents which, on the Crown case, detailed plans for terrorist acts to be committed on a number of specified targets, including the Australian Federal Police, the Australian Security and Intelligence Organisation, and the Lithgow Correctional Centre. It is alleged by the Crown that the nature and content of the documents demonstrate that they were connected with the preparation for, the engagement of a person in, or assistance in, a terrorist act. The Crown relies on the contents of the documents as evidencing knowledge on the part of the accused that they were connected with the preparation for a terrorist act. The Crown also relies on admissions made by the accused when spoken to by police on 18 December 2014.
The principal documents upon which the Crown relies, and which were seized during the execution of the search warrant at the Regents Park premises, are as follows.
Item 371(c)
This item was located in a backpack found in the garage at the premises (which was identified as the accused’s bedroom). The item contained the following writing:
2014
1 - Security precautions is all wrong!!! A brother I wont name who, had ASIO following his family the next day after Georges River. We should know we are all on red hot flaming heat & we shouldn’t be in the public to start with
2 - Lower your voice in public because it just brings more heat & attention.
3 - we just saw what happened the next day, at the Sydney Siege in the CBD which means they will be on us 24/7 & I told you the earlier we do things the better. What are we waiting for the enemies to collect more info & we all cop it sideways. An example is salat is a fard right, can we say have sabr akhi & wait till its time to pray & make tarbiyyah before praying, NO!!! Allah says about the pray being delayed, woe to those who pray. Which was because of them delaying the prayer. And we are delaying jihad. Jihad is a fard ayn on every Muslim. No permission is needed just as no permission is needed to pray. Both are a fara ‘id. Weve been waiting for years, ARE WE STILL GOING WAIT!!! Enough is enough, these pigs ( Australians ) are fighting our brothers in Ash-Sham & here in Aus & yous still want to wait. Read An-Nisa: 84 & tell me what excuse do we have after this Read, An-Nisa: 75 as well & tell me.
The time is NOW!!! we are down we even came earlier to Revesby because we want to humiliate these dogs, that’s how keen we were.
-4- Show us a visual recording or hardcore evidence that the Khalifah shows you to be the Amir Otherwise I will give the bay ah myself. Just as the brothers in prison did without an Amir.
-5- We have no weapons why we came to yous to get our hands on them so you cant tell us NO!!! NOT NOW!!!
THEN WHEN ? After we get slaughtered by one by one?
Item 371(d)
This item was located in the same backpack and on the Crown case is a continuation of 371(c). It contained the following:
6 - Im not a fool, & I will make sure how to give the bay ah & who to give it too & the conditions & so on. So I wont give it (illegible).
7 - We are going to do our own things & we will break the ICE here in Aus. Instead of being sitting headless ducks with no directions were to go or look.
And by that everything will start here which will make yous walk your talk instead of talking your talk.
Item 372
This item was also located in the backpack and contained the following writing:
If we are gna do the istishadi the AFP building is a good target, its in parra or the city.
Like the brother said, they will catch up with us anyway so same thing.
Helicopters and all that so we are going to fight until shahada anyway so we might as well do something major
Item 373
This item was also located in the backpack and contained the following writing:
The plan is Gorrilla warfare, we are going to go to the woods and attack the dogs there, Blue Mountains and the surrounding forests
Who are we going to find there
> Hijra out of NSW – 7
> Abo land
> Dawah to Abos = Army
> Army = Buildings, Fortresses, Plans etc
> Start Slowly ( under cover )
> Own world
> Start small = HUGE
Nearby theres a jail with brothers in it.
Item 374
This item was also located in the backpack and contained the following writing:
Blue Mountains, Bush, Buildings / protections
Item 375
This item was also located in the backpack and contained the following writing:
“Near by theres lithgow jail, insha Allah if we make progress we will attack it
So All of us gorila warfare?
Yes, but I would prefer the birthday cake orries more but if not then I will go with what the rest of yous think
Im gna speak to the group of 5 and tell them to immobilize as soon as we do our attack or even before. So it will confuse the enemy and insha Allah more brothers will arrive and do something as soon as it sparks.
Why are they going to immobilize
Why do’nt we target like a big organisation eg: headquarters of police force, ASIO, ect but something massive that would get them shocked and stuff up there organisation. If we want to go all out them istishhad goes in then the rest go in to finish things off
On Sunday Abu bakr will kill him the Amir the 2 plans most preferably the Gorrilla warfare first then the istishhad plan. Abu Azzam will lay (illegible) conditions
As soon as we take out a dog, they will attack
Item 370
This item had been ripped into four strips and rolled into a ball. It was located on the floor of the kitchen and contains the following writing:
About 350 litres of fuel for 3 motorbikes. Two long ones & one short one. Two long ones 2 litres, 1 short one 1 litre
About 100 litres of fuel for another motorbike but if it finishes quickly. 10 litres at a time will finish in a day or less.
About 300 litres of fuel for another motorbike but it only takes 1 litre at a time. It has its advantages like
2 x long ones $2500
$4000
Short one
Fast one
Slow one $5,000
$25,000
$30,000
$40,000
The Crown alleges that the reference to “motorbike(s)” in each case is a reference to firearms.
The accused’s parents and siblings were present when item 370 was located, although the accused himself was not. Police asked those present who owned the document. One of the accused’s siblings indicated to police that it was science work belonging to the accused’s brother, Hamza. However Hamza later indicated that it was not his writing. The accused’s father told police that the handwriting on the document was not that of the accused. Forensic examination confirmed the presence of the accused’s fingerprints on the document.
At about 1.00pm on 18 December 2014 the accused was spoken to by police at a restaurant in Enmore. He was informed that a search warrant was being executed at the Regents Park premises, and that his parents had requested that he return. He was also informed that he was not under arrest and that he did not have to go with the police if he did not wish to do so. The accused told police that he wished to go home. He returned to the Regents Park premises in the company of police at about 2.00pm, at which time the search warrant was still being executed. Upon arrival, and after administering a formal caution, police questioned the accused about items which had been located at the Regents Park premises. The accused told police (inter alia) that:
(i)he was the owner of the backpack located in the garage;
(ii)the garage was his room;
(iii)he used the backpack, which remained in his room for most of the time;
(iv)he had read the documents but that did not mean that he was intending to engage in any of the conduct referred to in them; and
(v)Abu Bakr was his nickname.
The accused was subsequently arrested and charged with the present offence.
THE SEARCH WARRANTS
Orders 1 and 2 which are sought in the notice of motion centre upon two search warrants issued to police pursuant to the Crimes Act 1914 (Cth) (“the Act”). Whilst it is not necessary for present purposes to set out the entirety of the terms of either warrant, the preamble is important in each case.
The first warrant (Exh. F) authorised a search of the Regents Park Premises. In its original form, the preamble to the warrant stated (inter alia):
“TO: Georgia Marie HANKS,
A constable within the meaning of the Crimes Act 1914, who is the executing officer in relation to this warrant;
…”
After the warrant had been issued, the name “Georgia Maria HANKS” was deleted by hand and the following notation inserted beside it:
“Paul Griffin 4:40am 18/12/2014”
The signature of Agent Griffin appears beside the date.
The second warrant (Exh. G) authorised a search of the accused. In its original form, the preamble to the warrant stated (inter alia):
“TO: Georgia Marie HANKS
A constable within the meaning of the Crimes Act 1914, who is the executing officer in relation to this warrant:
…”
Once again, following the issue of the warrant the name “Georgia Marie HANKS” was deleted by hand and the following notation inserted beside it:
“Paul Griffin 4:40am 18/12/2014”
The signature of Agent Griffin again appears beside the date. Subsequently, the hand written notation set out in [24] was itself deleted and the following notation inserted:
“TO: Nigel Bertram 12:10pm 18/12/14”
Agent Griffin’s signature again appears beside that notation.
THE EVIDENCE
The Oral Evidence in relation to the issue of the warrants
A number of police officers who were involved in making application for, and/or executing, either or both of the warrants gave evidence before me.
Federal Agent Jolly
Agent Jolly, who made two statements which became Exhs. B and C, was the Team Leader for the execution of the warrant at the Regents Park premises (Exh. B at para. 4). He stated that he was not “directly involved in the handover between constables” of either of the warrants in question (Exh. C para. 5). In terms of his role as Team Leader, Agent Jolly said (at T 7 L44):
A. The general role of the team leader in a search warrant is to have overview of the search warrants and not particularly bogged down in detail as to certain roles, being the warrant holder, the note taker, the property officer and searchers. So it is an overview of the search warrant to make sure we are liaising with the family and receiving items. Sometimes I might have a final say on the seizure of the items. Sometimes I have final say over the seizure of items with the search warrants. We have three conditions under section 3 of the search warrant, which we must meet before we seize an item. Sometimes searcher, or other members of the search, might have queries about some of the items we might find and I would have the final say as to whether we would seize those under the search warrant.
Agent Jolly said that Agent Griffin had been assigned to perform the role of warrant holder, or executing officer, in respect of the warrant authorising a search of the Regents Park premises (T5 L24 to 32). He identified Agent Hanks as the officer who had applied for the issue of the warrants, and again confirmed that he did not observe the transfer of either warrant from Agent Hanks to Agent Griffin (T5 L44 to 49).
Agent Jolly was then asked (commencing at T7 L10):
Q. At some stage was one of the team sent to another premises with the personal warrant?
A. Prior to the execution of the search warrant at the residence, a member of the team, Federal Agent Nigel Bertram, departed with the personal warrant prior to us entering the residence.
Q. Was he given certain instruction as to attending some other premises with other officers?
A. He was given instructions to attend another location, not necessarily the search warrant premises.
Q. Did you see that warrant handed over to your knowledge did you see that warrant handed over to Mr Bertram?
A. To my knowledge, it was.
Q. Did you see that happen?
A. I don't remember.
Agent Jolly said that Agent Wells was designated as the property officer for the warrant at the Regents Park premises and, in that capacity, had made a record of items seized (T5 L6 to 24). He also said that Agent Thompson was designated as the note taker for the warrant.
In cross-examination Agent Jolly was asked about his understanding of the phrase “signing over of the warrant” (commencing T9 L 17):
Q. What do you understand is meant by the phrase "signing over of the warrant"?
A. Section 3 of the search warrant, changes hands from the applicant or the executing officer. They are to write the name of the next person who is to take over that role, or they are to insert that name on the search warrant, and cross out their own name.
Q. Did you attend any form of in house training in order for you to give the answer you have just given in relation to the signing over?
A. No, I have not.
Q. How is it that you understand that means the phrase "signing over"?
A. I don't recall during training that being specific learning, but it was a legacy issue, in that I remember being told on the job, throughout my career in the AFP, that that is how we sign over other transfer of a warrant to another person.
Q. Because you made a point, and I don't know whether you were making a particular point or not, but you said it is the executing officer who handed over, or wrote the next person's name on the warrant?
A. Yes.
…
Q. Did you take any steps to speak with Officer Hanks to ensure that if she were to hand over the warrant, that procedure would be conducted and followed?
A. I did not take any steps.
Q. I think when you were giving your evidence earlier, you nominated Officer
Hanks as being the person who was to prepare the warrants?
A. That's correct.
Q. What instructions do you recall were given to anybody, if any, as to who the initial executing officer would be, upon issuing of each of the warrants?
A. I don't remember specific instructions given to Georgia at the time.
Q. So she was to prepare the warrants?
A. Yes.
As to the “signing over” of the warrant in respect of the Regents Park premises, Agent Jolly was asked (commencing at T10 L29):
Q. It was your understanding, I am assuming, that Officer Hanks would go and have the warrants sworn and issued to her?
A. Yes.
Q. And then she would sign then over to Officer Griffin?
A. That's correct.
Q. Is that what you understood the process to be?
A. That is my understanding of the process, among signing over those warrants to a number of other warrant holders for other premise.
Q. We will just stick with Regents Park for the moment. So you say you had on the job more or less training that the person signing over the warrant would be required to write in the next officer's name on the face of the warrant?
A. Sorry, can you say that again?
Q. It was your understanding that a person transferring the warrant, or signing it over, would have to write the next officer's name on the warrant?
A. That is my understanding.
Q. And you say there was no formal training that you can recall having attended to learn that, true?
A. That's right.
Q. What steps did you take to make sure that Officer Hanks, when signing the warrant over to Officer Griffin, would follow the same process?
A. I didn't take any steps.
Q. But you anticipated that that would happen?
A. Yes.
He was then asked (commencing at T11 L39):
Q … Did it occur to you, or did it not occur to you, that Officer Hanks ought to follow the same procedures that you understood when she signed it over to Officer Griffin, or did it not occur to you?
A. I was not directly involved in the signing over of the warrants between Georgia Hanks and Paul Griffin.
Q. Did you leave it up to her, more or less?
A. Yes, I did.
Federal Agent Hanks
Two statements of Agent Hanks became Exhs. D and E respectively. In Exh. E Agent Hanks said that at about 4:40am on 18 December 2014 she was in the company of Agent Griffin at Australian Federal Police Headquarters in Sydney. She had a conversation with him, as a result of which she physically handed him both warrants. She then observed Agent Griffin write and sign his name on each warrant after her name, following which Agent Griffin retained possession of both warrants.
In oral evidence, Agent Hanks said (commencing at T12 L39) that on 17 December she had been given the task of preparing an application for a number of warrants, including those which are the subject of the present notice of motion. She said (commencing at T13 L33) that as a result of having to prepare that application she had not attended a general briefing in respect of the operation which was held on 17 December 2014. She explained that at some stage during that day, or perhaps in the early hours of 18 December, she became aware from speaking with other officers that a number of warrants had been issued and were to be handed to designated officers for the purposes of being executed. She then gave the following evidence (commencing at T13 L49):
Q. Was one of those warrants, in respect to Berry Street, to go to another officer?
A. Yes.
Q. Who was it go to?
A. Federal Agent Paul Griffin.
Q. On the 17th, about what time did you actually get the warrants?
A. I believe they were issued approximately 10.30 pm.
Q. Where were they issued?
A. Parramatta, after hours registry.
She was then asked (commencing at T14 L27):
Q. I will come to the detail of the signing over in a moment, but generally what process took place for the purpose of the warrants and, in particular, the Berry Street warrant, to be made from you to other officers?
A. That morning?
Q. Yes, that morning?
A. As I stated earlier, I started about 4 am in the morning and attended what is called our investigations room in relation to those warrants. I stood at a particular desk and at that time Federal Agent Griffin was with me and as I was away, he was the warrant holder for that day for Mr Khalid's premises. I handed him a copy of the warrant for Berry Street and asked him to put his name on that and handed him a copy of the warrant at the time. I saw him write his name on it while he was standing next to me.
Q. Did you follow a similar process with the personal warrant for Berry Street?
A. Yes.
Q. Let me ask you this; at the time of that event, what did you believe was required for transferring a search warrant to another member?
A. I believe that my name, as the person on the warrant, needed to be crossed out and the next constable's name just needed to be written there.
Q. You say that you believed your name had to be crossed out and the other constable's name written in?
A. Yes.
Q. Did you have a belief as to who had to do that?
A. No.
Q. If you had believed that it was important that you do it, would you have done it?
A. Yes.
When cross-examined Agent Hanks explained (commencing at T15 L20) that she attended the accused’s premises and participated in the search. She said (commencing at T15 L35) that she had passed the warrant to Agent Griffin because it was her understanding that he was to be the warrant holder for that day. She could not recall exactly how she came to learn that this was the case, but said that she had become aware of it on the evening of 17 December 2014. When asked about her understanding of the term “warrant holder” Agent Hanks said (at T15 L48) that such a person:
… would be responsible for the conduct during the warrant and how it was conducted.
The Crown directed Agent Hanks’ attention to the warrant which was issued in respect of the Regents Park premises (commencing at T16 L3). She said that the details recorded on the warrant as indicating the time and date on which it was handed over to Agent Griffin were consistent with her memory.
When cross-examined, Agent Hanks was asked about the differing roles of police with respect to the issue and execution of the warrants (commencing at T16 L41):
Q. And then there was an executing officer?
A. That was initially myself.
Q. And then you say you signed that role over to Agent Griffin?
A. Yes.
Q. So as far as you were aware, you were no longer the executing officer?
A. Yes.
Q. And you had, effectively, divested all responsibility for the warrant and being executing officer to Officer Griffin?
A. Yes.
Q. You went to the premises at Regents Park?
A. Yes.
Q. And your role there was to‑‑
A. Search.
Q. And was that to assist Officer Griffin?
A. Yes, that is correct.
Agent Hanks was then asked (commencing at T17 L18) about the process in which she signed the warrant over to Agent Griffin:
Q. But at 4.40am, approximately, you directed or asked Officer Griffin to do something about the warrant?
A. Yes.
Q. If you take the Regents Park warrant, you handed him a copy of that?
A. Yes, of the original.
Q. Mm?
A. Of the original.
Q. And you asked him to write his name there?
A. Yes.
Q. Did you ask him to strike the line through your name?
A. I can't recall if I did that prior to handing it to him or not.
Q. Did you ask him also to sign and date it or is that later?
A. I can't recall exactly the words I said, just that his name was to go on there.
Q. (Exhibits F and G shown to witness.) You see on exhibit F, the Regents Park warrant, the handwriting showing Paul Griffin, 4.40am, 18/12/2014?
A. Yes.
Q. Is that Mr Griffin's writing?
A. Yes.
Q. Also looking at exhibit G we see similar words: Paul Griffin, 4.40am, 18/12/2014?
A. Yes.
Q. That's Officer Griffin's writing?
A. Yes.
Q. Why was it then that you actually asked him to do that?
A. Because he was to be the warrant holder for those warrants. So, as I said earlier, I handed him the warrants and asked him to put his name on that just to show that he then had responsibility for that warrant.
Q. Why didn't you, for example, write his name in yourself?
A. It was my understanding that the name just needed to be written there, not who had to actually write it.
Agent Hanks said (commencing at T18 L10) that the understanding to which she had referred in that last answer had been acquired through “practice”. She explained (at T18 L21 to 23) that she recalled some occasions on which, when signing over a warrant to another officer, she had written that other officer’s name herself. She recalled other occasions on which she had asked that other officer to write his or her own name. When asked why her practice varied, Agent Hanks replied (at T18 L27-28):
There would be no particular reason. Sometimes I could be very busy and as I’m standing next to them I’ve asked them to write it.
Agent Hanks confirmed (commencing at T18 L30) that she had never undergone any formal training about how to “sign over” a warrant to another officer in circumstances where she herself had originally been named as the executing officer. She was unable to recall whether she had ever been told about the correct procedure to be adopted.
Agent Hanks was then asked about her knowledge of the provisions of ss. 3C and 3E of the Act (commencing at T18 L38):
Q. Have you ever had a look at section 3E of the Crimes Act 1914?
A. Yes.
Q. Mm?
A. Any particular parts? I know parts of it.
Q. I want to show you section 3E (shown). Do you see that before you?
A. Yes.
Q. It's a document headed "Crimes Act 1914 ‑ SECT 3E"; do you see?
A. Yes.
Q. And then if you go down to subsection 5, it is in yellow block ‑ yellow highlighting, rather?
A. Yes.
…
Q. Subsection (d), you can see that, that's in the yellow highlight too?
A. Yes.
Q. Have you ever seen that before or read that before?
A. Not prior to the warrants in question. I have since read it.
HIS HONOUR
Q. So you had not read it prior to these events?
A. Not that subsection, your Honour.
FOSTER
Q. Can you turn two pages in that document?
A. Three pages, was it?
Q. Three, yes. I apologise, madam. You will see another document headed "Crimes Act 1914 ‑ SECT 3C"?
A. Yes.
Q. Have you read that section?
A. I have read it in the last week or so.
Q. It's been pointed out to you, has it?
A. Yes.
HIS HONOUR
Q. Which part of it?
A. The definition of executing officer, your Honour.
FOSTER
Q. And the section highlighted there on that page in yellow highlighting for executing officer, you've read that most recently in the last week?
A. Yes, approximately two weeks ago.
HIS HONOUR
Q. Were you aware of that definition before the events that we are talking about today?
A. If you can just let me refresh, your Honour. Your Honour, I understood the general meaning of it, just probably not exactly in that terminology.
FOSTER
Q. So you've read that most recently in the last couple of weeks you say. In relation to the warrant, exhibit G, for Mr Khalid?
A. Yes.
Q. You followed the same process, did you?
A. Yes.
HIS HONOUR: In terms of signing it over to Mr Griffin you mean?
FOSTER: Yes, your Honour.
Q. I'll make it clear, ma'am. In terms of signing the warrant over to Officer Griffin, you followed the same procedure as you did in relation to exhibit F?
A. Yes.
Q. You said before that on previous occasions you have signed the warrant or written your own name in when signing it over to someone else; and on other occasions, perhaps if you are busy, you ask that other officer to write his name in?
A. Yes.
Q. Over what period of time do you say that variation in conduct has been undertaken by you?
A. You mean in my time as an agent?
Q. Yeah.
A. I've been in the job approximately nine years, so around that time.
Q. So for up to nine years you say you've been asking from time to time other officers to write their names in when you are signing warrants over to them?
A. Yes.
HIS HONOUR
Q. Have you ever undergone any formal training in relation to procedures relating to the application or execution of search warrants?
A. The execution of search warrants, yes.
Q. What about the application for the warrant?
A. No formal training, your Honour.
Q. Have you ever undergone any formal training as to procedures which ought be followed when a warrant is being signed over from one officer to another?
A. No.
FOSTER
Q. So, more or less, it has been on the job training?
A. Yes.
Q. And nobody has actually trained you?
HIS HONOUR: Formally.
FOSTER: Formally, yes.
Q. Nobody has formally trained you?
A. For this particular matter, no.
Q. Not in this particular matter. In relation to the proper procedure of signing 3E warrants over to another officer, you've never had any formal training?
A. Sorry, that's what I referred to, for this particular matter, with what's in question. No, no formal training.
Q. Is it the case that even informally, on the job, you've had no training?
A. No, I would have been told at some point, I cannot recall exactly what, of what to do when handing over a warrant. But I cannot recall when that occurred.
Q. So I'm assuming then that whatever you were told, you were told to either to write your name in yourself or, alternatively, the other officer can write his name in; is that what you recall being told?
A. As I said, I' sorry, I cannot recall exactly what I was taught.
HIS HONOUR
Q. But your understanding has been acquired over a period of time?
A. Yes, your Honour.
Q. From other officers?
A. Yes.
FOSTER
Q. Did you ever have any understanding as to whether it was necessary, in fact, for you to write the name in; or whether it was necessary for the other officer to write his name in; or whether it was immaterial who wrote his name or that officer's name?
HIS HONOUR: There's three separate propositions in that question, Mr Foster. You will need to perhaps break them up.
FOSTER
Q. Were you ever told that it was important for you to write your name on the warrant?
A. Possibly. I'm sorry, I cannot recall whether I have been told that or not, whether I'm the one writing it or not.
Q. Do you remember if you were ever told that it was permissible for the other officer to write his name on the warrant, the other officer to whom it was being transferred to?
A. Sorry, yet again, I cannot recall exactly who would have told me what in terms of who did the writing. I am aware that the other person who the warrant is being handed to, their name needs to be on the warrant. But it was my understanding that it was ‑ it was my understanding that the person writing it wasn't an issue, of which, your Honour, I'm now fully aware.
HIS HONOUR
Q. I take it that's no longer your understanding?
A. No, it is not.
FOSTER
Q. Could it have been the case that as far as you were concerned you didn't think it mattered one bit who wrote the name on the warrant?
A. Well, I wouldn't say it didn't matter one bit. I wasn't aware that it was legislated that as the person handing over the warrant I had to do the writing.
Federal Agent Griffin
Agent Griffin made two statements which were admitted as exhibits H and J respectively. At paragraph 5 of exhibit J Agent Griffin set out the circumstances in which he had come into possession of the warrant for the Regents Park Premises:
About 4:40am on Thursday 18 December 2014 I had a conversation with FA Georgia Hanks, as a result of that conversation I was handed a search warrant numbered SW782/2014 for 13 Berry Street, Regents Park, NSW and a search warrant numbered SW790/2004 for Sulayman Khalid, born 11 November 1994, issued pursuant to s. 3E of the Crimes Act 1914. At this time, in the presence of FA Hanks, I wrote my name, time, date and signature on the front page of each search warrant. At this time, I believed I was signing to acknowledge receiving each search warrant and wrote my name on both warrants in preparation for my duties as warrant holder. I also made a number of copies of each search warrant and maintained possession of the original search warrants.
In oral evidence, Agent Griffin explained that in the early hours of 18 December 2014 he attended Federal Police Headquarters, after which the following occurred (commencing at T24 L34):
Q. At some stage after arriving there, did you speak with Agent Georgia Hanks?
A. That's right.
Q. And did she give you the two documents that have just been handed to you?
A. Yes, that's correct.
Q. At the time she handed you those documents, where were you and she?
A. I believe we were either on level 5 or level 6 of AFP headquarters.
Q. And, as best you can recall, words to the effect, what did she say to you and what did you say when the documents were handed to you, the warrants were handed to you?
A. Federal Agent Hanks handed me both documents and asked me to place my name on the top as receiving those documents. I then proceeded to cross out her name and place mine at the top, as well as putting the time and date and my signature at the top.
Q. Can I ask you, if you would, just to look at exhibit F, which is the premises warrant. On the top of the warrant, the line through Georgia Hanks and the name Paul Griffin, 4.40am, 18/12/2014 and then a signature; is that your signature and is that your writing?
A. Yes, that is.
Q. And on the left‑hand side there's further writing in respect to the execution of the warrant; do you recognise that writing?
A. I do.
Q. Whose writing is that?
A. That is also my writing.
Q. I will come back to that in a moment. If I could ask you if you would now look at exhibit G, that is the person warrant. At the top of that do you see writing, the line striked (sic) through Georgia Marie Hanks and then a line through Paul Griffin and then writing 4.40am, 18/12/2014 and a signature; is that your writing?
A. That's correct.
Q. And above that there's writing to Nigel Bertram, 12 ‑ looks like ‑ 10pm, 18/12/14 and a signature; do you recognise that writing?
A. I do.
Q. Whose writing is that?
A. That's also my writing.
Q. What was the circumstance that led you writing that on that warrant?
A. We were at the vicinity of the premises at 13 Berry Street‑‑
Q. I'm sorry, can I ask you to slow down a little. The shorthand writer actually has to take it down as you speak.
A. Okay. So we were in the vicinity of 13 Berry Street, Regents Park. At that location I received a briefing that Federal Agent Bertram was to execute the person warrant. As Federal Agent Bertram was receiving a briefing in relation to that activity, I crossed out my name and inserted Federal Agent Bertram's name on to the warrant as he was going to fulfil the duties of warrant holder.
Q. At the time you did that, do you recall where you were and where he was relatively to each other?
A. Yes. He was right beside me at the vicinity of the back of the vehicle.
Q. At the time you received the warrant from Agent Hanks, what did you believe was the requirement for transferring the warrant from the named officer on the warrant to a new executing officer?
A. At the time I believed that the person responsible for executing the warrant had to have their name at the top and that I was putting my name at the top as recognition as receiving the warrant in the company with Federal Agent Hanks.
Q. In respect to exhibit G, the person warrant, why was it you wrote Bertram's name on it in circumstances where earlier you had written your name when Hanks had handed you the warrant?
A. I believed at the time that I could insert Federal Agent Bertram's name at the top of the warrant. As he was preoccupied receiving a briefing, I filled it out on his behalf.
Q. Did you have any belief at the time you wrote your name on to each of the warrants as to the legal effect of that?
A. No.
Q. In respect to the transfer of the warrants or the executing officer, do you recall receiving training?
A. No, I can't recall anything specifically, no.
Q. Where did you learn the practice that you engaged in on 18 December 2014?
A. I don't recall. It probably would have been early on in my career. I think over the course of observing other warrants being handed over I've just adopted a practice.
Q. As of December 2014, how long had you been a member of the Australian Federal Police?
A. About eight years.
Q. Were you with another police force before that?
A. No.
…
Q. I think just before the break I asked you in relation to the personal warrant. I don't think I had asked you; you attended at a rendezvous point on the morning of the 18th?
A. That's correct.
Q. Did you understand that the tactical plan was to execute the warrant at Berry Street simultaneously with other warrants?
A. It was initially.
Q. Was there some impediment to that?
A. There was.
Q. During the course of the morning, while waiting, were you advised of the need to transfer the personal warrant to another officer, Mr Bertram?
A. I was.
Q. I have asked you before the break about the writing of the name, and the like. I am directing your attention to receiving the warrant from Officer Hanks, or both warrants from Officer Hanks. If you had believed that your writing your name on, rather than her name, would affect the legality, would you have done so?
A. No.
When cross-examined Agent Griffin explained that this was not the first occasion on which he had followed the procedures he described. He said that he thought that he had been doing so for the duration of his career as a Federal Agent which spanned more than eight years. He confirmed (commencing at T27 L37) that he had not undergone any formal training in relation to such matters, following which he was asked (commencing at T27 L41):
Q. What was your view about whether it was important or not for the executing officer, the receiving officer, if I might suggest, to write the name on the warrant?
A. At the time I believe it had to be the person executing the warrant, the name on the top. I didn't have knowledge at that time of who was to strike out the name at the top.
Q. Did have you a view about whether or not you were able to write your name as the next executing officer on the face of the warrant?
A. Yes, I believe I could put my name at the top as receiving acknowledgement or as receiving the search warrant for execution.
Q. When you say "as receiving" it, did you see yourself in the role, once Ms Hanks had signed the warrant to you, you say, as being the new executing officer?
A. Yes.
Q. So, the writing of your name was more than merely to acknowledge a receipt of the warrant, it was ‑ and correct me if I am wrong ‑ in your mind it was to designate that you were now the new executing officer?
A. Yes.
Q. Ultimately Federal Agent Hanks was no longer the executing officer in relation to the warrant for Regents Park, is that right?
A. That's true.
Q. And she was no longer the executing officer for the warrants to be served individually on Mr Khalid?
A. That's correct.
Q. In relation to Mr Bertram, you wrote his name on the warrant after you were advised that he was to be the new executing officer for the warrant to be executed on Mr Khalid?
A. That's true.
Q. So, do I take it then that you did not really think it was important whether the executing officer wrote the new person's name on the warrant or whether the new person wrote his name on the warrant in the process of signing it over?
A. At that time, yes.
Agent Griffin was then asked about his knowledge of s. 3E of the Act (commencing at T28 L32):
Q. Had you ever read section 3E of the Crimes Act before December, 2014?
A. I don't recall, but I dare say I did.
Q. I will just show it to you, (Exhibit 1 shown). I have shown you there section 3. Do you see a document headed Crimes Act, 3E?
A. Yes.
Q. Halfway down the page, sub‑section 5 is highlighted in the first line in yellow?
A. Yes.
Q. And sub‑section (d) is also highlighted in yellow, do you see that?
A. Yes.
Q. Just look at that for a moment. Do you recall if you have ever seen it before today?
A. Yes, I would have, yes.
Q. You would have?
A. Yes.
Q. Do you remember when?
A. No, I can't recall now.
HIS HONOUR
Q. Had you seen it before December, 2014?
A. Yes, I would have, at some stage.
…
Q. How did you know, in February 2015, that the warrant was a section 3E warrant?
HIS HONOUR
Q. Firstly, did you know that in February, 2015?
A. That the warrant was a 3E Crimes Act?
Q. Yes?
A. Yes.
Q. How do you know that?
A. I read the warrant and it was ‑ it said that at the top.
FOSTER
Q. You took that from the face of the warrant, is that right?
A. That's correct.
Q. So, what was it that, when the warrant for Mr Khalid was not signed by officer Bertram in the same way that you had written your name in when you received it from Officer Hanks?
A. I believe at the time that I was replacing the name at the top, it says Bertram, and that was then the enable him to execute the warrant.
HIS HONOUR
Q. Do you mean by that, that as far as you were concerned, the process did not matter one way or the other?
A. My belief at that time was that was the case, yes.
Q. That either person could write the name?
A. Yes, that's right.
Q. On what did you base that belief?
A. I believe that if you were given the warrant you could sign it as receipt, having received the warrant, and perform the duties from that person.
Q. I understand that is your belief, but my question is; on what did you base your belief?
A. Just prior experience, your Honour.
As to such belief, Agent Griffin also said (commencing at T30 L34):
A. I'm not sure where I first learnt the belief, but I do recall the most important aspect is that it had the executing officer's name at the top and that if you had received the warrant, you could sign for having received it off that person. If you wanted to pass the warrant over, you could then insert the name of the following executing officer.
HIS HONOUR
Q. Did somebody tell you that that was an important aspect or was that something that you learnt over a period of time?
A. I think it was something I learnt over a period of time.
Q. From other officers?
A. Yes.
…
Q. In relation to Officer Bertram, I think before morning tea you indicated that he was busy?
A. Yes, he was receiving a briefing at that point.
Q. So you had been advised by someone, other than Officer Bertram, that officer Bertram was then going to be the new executing officer?
A. Yes.
Q. And the executing officer at that time was busy doing something else?
A. Yes, we were all at the rear of the vehicle and we were discussing the events that were to occur and at that time I, during that process, put his name on the top.
Q. You took it upon yourself to write his name on the top because he was busy doing something else?
A. Yes, that's correct.
In re-examination Agent Griffin was asked (commencing at T31 L24):
Q. Were there occasions in your career in the Police Force where you had seen other officers deal with officers transferring warrants from one to another?
A. Not specifically, just through general paperwork, I dare say. I had not actually seen the physical ‑ how other officers had done it previously. I don't recall, anyway.
Q. In your dealing with other officers, were there discussions about how things are done, or were there when you were a more junior officer?
A. Generally, yes.
Q. Was one of the topics the transfer of the warrants?
A. I don't recall that specifically, no.
Federal Agent Thompson
Agent Thompson made a statement which became Exh. K. Commencing at paragraph 5 he said that he was present at the Regents Park premises on 18 December 2014 for the purposes of assisting in the execution of the search warrant. He stated (at paragraph 10) that he commenced searching the premises at about 2:26pm and that at about 2:44pm, whilst searching the kitchen, he located item 370 on the kitchen floor near the stove. Later, at about 4:45pm whilst searching the garage, he located a blue folder entitled “Tajweed studies” containing items 371(c), 371(d), 372, 373, 374 and 375.
Commencing at T32 L39 Agent Thompson explained that he had attended a briefing on 17 December 2014 in relation to various search warrants which were to be executed as part of the overall operation on the following day. He said (at T33 L15) that he was nominated as the “note taker” in respect of the warrant at the Regent Park premises. He was asked (commencing at T39 L18) about his understanding, in December 2014, of the process of transferring warrants and replied (commencing at T39 L29):
A. My understanding as the holder of the warrant is I would sign it over to someone else by writing words to the effect of "I hereby sign this warrant over to", and nominate which person I was signing it over to, and would time stamp it and sign it.
…
Q. And also to be clear, your understanding was that it was your writing?
A. That's my understanding, yes.
Agent Thompson was also asked about the nature and extent of any training that he had undergone in relation to the process of transferring a warrant from one officer to another (commencing at T39 L45):
Q. What training had you received in relation to the process of signing over warrants as at December 2014?
A. I can't recall the exact nature of our initial training in Canberra. It was training that ‑ knowledge that I picked up while observing other members signing over warrants.
Q. Would you describe it as on the job training then?
A. Probably more so, yes.
HIS HONOUR
Q. But not training in a formal sense?
A. Not that I can recall, your Honour.
In cross-examination, Agent Thompson was asked (commencing at T40 L45) about his knowledge of s. 3E of the Act. He said (at T41 L5) that he was familiar with the section, and with s. 3C (at T41 L25). He was then asked about his knowledge of the process of transferring a warrant from one officer to another (commencing at T41 L31):
Q. And I think you told his Honour that your knowledge gained on the processes of signing a warrant over had been gained, more or less, on the job?
A. Primarily, yes. I can't recall the exact nature of the initial training we had.
Q. So were you given any specific instructions, or courses, or training in relation to these sections I've just pointed you to: 3E or 3C?
A. No courses that I'm aware of, no.
Q. So what led you to, as at December 2014, to be familiar with those two sections if you'd never been on any courses?
A. Well, section 3E of the Crimes Act is one used quite heavily by federal police. We were certainly encouraged to make ourselves familiar with it. And I've been involved in other warrants and warrant teams in the execution of warrants in the field.
Q. Did that mean that you then went and looked up the section and read it?
A. I can't recall if I've ever read the entire section.
Q. But I thought you said before when I showed you 3E that you were familiar
with it?
A. I am familiar with it, yes.
In any event it was Agent Thompson’s evidence (at T42 L6 to 11) that he played no part in the transfer of any warrant from one officer to another in the present case, and indeed was not even present when that occurred.
Federal Agent Bertram
Agent Bertram made two statements which became Exhs. L and M respectively. Commencing at paragraph 6 of Exh. L he said that at about 12:10pm on 18 December 2014, Agent Griffin had “signed over” to him the warrant authorising a search of the accused. At about 1:00pm on that day, in the company of other police, Agent Bertram attended business premises in Enmore where he recognised the accused. At that point, the warrant was executed. Agent Bertram conveyed the accused to the Regents Park premises. Following his arrival, Agent Bertram performed the duties of a searcher.
Commencing at para. 5 of Exh. M , Agent Bertram said:
“5. On 18 December 2004 F/A Paul Griffin and I had a conversation during which I became aware that he would not be present at the execution of a section 3E Crimes Act 1914 search warrant, numbered ER SW 790/2014, on the person of Sulayman Khalid.
6. At about 12:10pm, I saw F/A Paul Griffin sign the warrant over to me, which involves him crossing out his name on the statement and writing in my name, the time, the date and his signature.
7. I understood this to mean that I now had the authority to perform the duties of executing officer in relation to the search warrant. I subsequently executed the search warrant as detailed in my statement dated 3 February 2015.”
In oral evidence, Agent Bertram was asked by the Crown about his conversation with Agent Griffin to which he referred (commencing at T46 L9):
Q. Tell his Honour, please, about the conversation you had with Federal Agent Griffin at that time?
A. It was words to the effect of that he needed to sign this warrant over to me as he wouldn't be able to execute it. I was he subsequently signed that over to me and I performed the role of executing officer for that warrant.
Q. When you say he subsequently signed it over to me, what steps did that involve, please?
A. Basically, what's written on the top of the document, "to Nigel Bertram", that's written by
Q. I will just ask you to slow down, please.
A. At the top of the document there is a name written, that's my name, "to Nigel Bertram", that was written by Federal Agent Griffin.
Q. Is that his signature to the right of that writing?
A. Yes, that is his signature.
Q. Did you see him write that on?
A. Yes, I did.
Q. After he had written that on, you said he signed it over to you, what did you understand your role to be once it was signed over to you?
A. I understood that I was now authorised to be executing officer for that warrant.
Q. If you turn the document on its side, you will see some writing down the side, whose handwriting is that in?
A. That's my handwriting.
Q. Can you read it out, please?
A. Yes. "Executed by FA Nigel Bertram between 1300 hours and 1305 hours on 18/12/14".
Q. There's a signature to the right of that writing, is that your signature?
A. Yes, it is.
Q. How did the process followed by Federal Agent Griffin when he signed the warrant over to you compare to your understanding of the correct process for signing over a warrant?
A. I understood that he signed it over to me in correct method.
Q. When the warrant was handed to you by Federal Agent Griffin, what understanding did you have as to whether the warrant was lawful?
A. I understood it to be lawful.
Q. What would you have a done with the warrant had you thought it not to be lawful?
A. I wouldn't have executed it.
Q. Had you had any training about the correct process for signing over a warrant?
A. We do have training, but I don't recall whether that was included in the training. It's been a long time since my initial training.
Q. When you say "we do have training", by that do you mean formal training or on the job training?
A. I'm referring to initial recruit training. I do know they run us through a lot of the procedures with that. But given the timeframe, I unfortunately don't recall whether that signing process was part of that training.
Q. Did you also have on the job training?
A. Yes, I think in the earlier years I would have probably learnt that process just through working with other police.
Agent Bertram was further cross-examined about his evidence of the transfer of the warrant and his conversation with Agent Griffin. He said (at T50 L49) that he was standing at the back of a vehicle next to Agent Griffin when the conversation took place. He was then asked (commencing at T51 L4):
Q. And so what was the conversation that you had with Officer Griffin?
A. That was basically in relation to him signing over the warrant to me.
Q. Who said what?
A. He said words to the effect of that he would be signing the warrant over to me so that I could execute it and I agreed to that and he signed the document.
Q. So did he actually speak with you?
A. Yes, I spoke with him, yes.
Q. And did you actually have a conversation together?
A. Yes, we did.
Q. What were you doing near the car at that time?
A. I was just standing there.
Q. So when you say you were just standing there, were you engaged in a particular activity?
A. Not apart from just the discussion of the warrants.
Q. So it would have been easy for you to have signed the warrant if you thought that was the appropriate step?
A. For me to sign the warrant?
Q. I am just asking you, would it have been possible for you to have stood there and signed the warrant if you felt that was appropriate?
A. If it was the appropriate action I could have signed the warrants.
Q. As it occurred, Officer Griffin signed the warrants. Is that true?
A. Yes, that's correct.
Q. Had you known at that time whether or not you were to be the executing officer on the warrant in his stead?
A. Yes, I knew at the time that he was signing over that was the reason that was occurring.
Q. How did you know that?
A. Because we had the conversations about him signing the warrants over so we could execute them.
Q. So who told you that you were to be the new executing officer?
A. I believe it was Federal Agent Jolly.
Q. And was that before or after Officer Griffin had signed the warrant over to you?
A. That was before.
Q. I think you were telling us about your training. Had you had any training in signing over warrants?
A. I know that I had had search warrant training early on in my career but I don't recall details of whether that involved search warrant sign over procedures or not.
Q. So when Officer Griffin said words to the effect of "You will be the new executing officer, I will sign it over to you", did you have any idea of whether that was or was not the correct way in which the warrant was to be signed over to you?
A. That's how it has been done to my knowledge throughout my career. It's the person whose name is on the warrant is the one who signs it over to the next executing officer.
Q. So as far as you are concerned as at December of last year, was that the appropriate and proper course as you understood the signing over to be?
A. Yes, that's correct.
Q. Were you aware of whether there was any other potential courses that other officers took from time to time?
A. I'm aware that on occasions some officers have co-signed it when they have received the warrants, but that's not something that I would have seen widely practised.
Q. Cosigned?
A. So, for example, I might sign the document when I received it just to acknowledge that that's occurred.
Q. So I understand it, so both the outgoing executing officer and the incoming executing officer would both sign?
A. Yes. I have seen that done on occasion.
Agent Bertram was then asked about his knowledge of s. 3E of the Act (commencing at T52 L48):
Q. Had you ever read that before December of last year?
A. I don't recall, but it is I would guess that I have. I can't say for certain.
HIS HONOUR
Q. You said I expect that I would but you can't say for certain?
A. That's correct.
FOSTER
Q. Have you read it since December last year?
A. Yes.
Q. In what circumstances have you read it since?
A. Just in relation to when the question has arisen in relation to search warrants, signing procedures, I had a look at the document.
Q. Was that in relation to this matter?
A. Yes.
Q. When did you read it?
HIS HONOUR: Do you mean most recently?
FOSTER: Yes.
Q. Most recently?
A. Within the last week or two.
He was then asked about his knowledge of s. 3C of the Act (commencing at T53 L37):
Q. Do you recall having read that document before December of last year?
A. I don't recall reading it before December of last year.
Q. Have you read it since?
A. Yes.
Q. And again was that most recently?
A. Yes.
Q. How long ago?
A. Within the last week or two.
Q. As a result of being told to?
A. No, I wasn't told to but after I was aware of some issues in relation to
search warrants I wanted to make sure I was aware of what the correct procedure is.
Detective Victor
Detective Victor made a statement that became Exh. N in which he said (commencing at paragraph 4) that he was assigned to interview the accused. He explained that in the company of other police he attended premises in Enmore on 18 December 2014 where he had a conversation with the accused, in the course of which the accused said (inter alia):
“The Quran says if you take one innocent life you take all of humanity. I was created to worship Allah”.
Det. Victor said (commencing at T57 L20) that he told the accused that he was not under arrest, following which they travelled back to the Regents Park premises.
Federal Agent Wells
Agent Wells made a statement which became Exh. O. Commencing at para. 5, he said that he had arrived at the Regents Park premises at about 12.30pm on 18 December 2014 for the purposes of assisting in the execution of the search warrant. He acted as a property officer, such that when an item was seized it was handed to him, following which he would record a description of it on a Property Seizure Record (Exh. P). He explained (commencing at T58 L37) that his role was to act as the “point of collection” for items seized in the course of the search.
The Insight Program
The Crown seeks to rely upon statements made by the accused during an episode of a television series called “Insight” which was broadcast on the SBS Network. The episode, which was entitled “Joining the Fight”, was in the nature of a discussion forum, the principal topic being the armed conflict in Iraq and Syria, and whether Australian citizens should participate in that conflict. The accused was a member of the audience, as was his solicitor. A recording of the program became Exh. Q on the present application and was played in its entirety. A transcript was also provided by the Crown.
At the commencement of the program, a series of excerpts of what was to broadcast were played by way of preview. One such excerpt showed the accused, who was wearing a form of head dress (and who was referred to in the program as Abu Bakr) saying:
“ISIS they do not want to bring anything but justice.”
The compere of the program, a Ms Brockie, commenced the episode by interviewing Abdul Salim Mahmoud, an Australian citizen who was in Syria and who described himself as undertaking “humanitarian aid” in that country. Another person, Mohamed Zuhbi, was also interviewed from Turkey. He too explained that he was engaged in “humanitarian aid” and was in the habit of travelling across the border to Syria for that purpose. He described himself as having “an obligation” to help “the people that are being mistreated in the world, particularly Muslims”.
Ms Brockie then turned to the accused and the following exchange took place:
BROCKIE:
Okay. Abu BAKR, you're nineteen. You were born here. You grew up in Sydney. What do you think about Australians going over to fight with ISIS and I see you're wearing the ISIS flag on your shirt?
BAKR:
It doesn't really come down to what sort of flag 'cause this flag - this - this flag here, yeah, is, you know, it's - it's - people might say, oh, you're a supporter of Jabhat ai-Nusra and this flag here that you - people might say you're a supporter of ...(indistinct)... islam and ISIS, you know, but these flags are all one. They're all - they're - they're all the same flags. One Muslim nation and that's it
BROCKIE:
Okay. Tell me about that connection that you feel to Iraq and to what's going on in Iraq and Syria and the connection to that flag. Where does that connection come from in you?
BAKR:
Well, firstly, it comes from me being a Muslim, me standing up for my faith and an - and - and, you know, It's - if s mentioned in the Koran in numerous spots in the Koran where the Muslims - the Muslims - it is an obligation upon them to go and help the needy.
BROCKIE:
Is that an obligation to fight as well?
BAKR:
This is - this is a personal choice of anyone - whoever wants to go and fight they - they - they - they go for. This is a personal choice and this is up to anyone that wants to go or doesn't wanna go.
BROCKIE:
M'hm. You were bom in Australia.
BAKR:
Yeah.
BROCKIE:
How connected do you feel to the values here in Australia?
BAKR:
Well, the Australian Government, you know, in order for me to be connected to the values here of Australia the Australian Government needs to stop picking on the Muslims here and they need to stop picking on, for example, you know, the - the - the - the sisters wearing a burqa, for example, or - or whenever you wanna voice your opinion on something and expose an oppression of a tyrant then you are subjugated to being a terrorist or, you know, you are being subjugated to being a national threat of a country.
BROCKIE:
Okay. Tell me what you think of ISIS. I'm interested in what you think of ISIS as an organisation.
The accused’s solicitor intervened and said:
Okay. Don't answer it
The conversation with the accused then proceeded:
BAKR:
Look, ISIS, they - they - they do not want to bring anything but justice, ISIS. They don't wanna bring anything but justice.
BROCKIE:
And what do you think justice is?
BAKR:
Justice is giving the - the - the giving the right of the people, giving the rights to the people, feeding the people, sheltering the people, clothing the people.
BROCKIE:
Okay.
BAKR:
This is what ISIS is trying to bring -justice, peace and humanitarian aid to the people.
BROCKIE:
All right I wanted to give you —
BAKR:
And they're trying to purify the land.
BROCKIE:
I wanted to give you a chance to say all of that before I showed some clips from videos from ISIS that have been recently released. Now, some of these clips, I think it starts with ISIS fighters who are randomly shooting what they call their enemies in cars in one video. And I should warn people that some of this footage might be disturbing.
(video played)
(singing and chanting in background)
(foreign language)
(video stops)
BROCKIE:
Okay. We've stopped the video there because it goes on to show those people being shot, that we just saw. And I've seen far more gruesome footage than that that we can't actually put on screen by ISIS - ISIS videos that are out there on the internet What do you think when you see that footage?
BAKR:
No comment You wanna have any other questions about it just direct it to my lawyer.”
The accused’s solicitor intervened again and said:
“Maybe you can ask someone else in the audience that question.”
Later in the program the accused said the following:
“...just says in the Koran, yeah, if you - if you kill an innocent life it’s like you have killed the whole of humanity, it also says, if you save an innocent life if s like you have saved the whole of humanity. So ISIS ...yanni... we - we can say that they are - they - they are following the Koran and Sunnah at the best of -at the best of their ability. You cannot judge their situation there while still sitting here. You can't say anything, you know, they're killing this, they're killing - you're sitting here.”
Subsequently the following exchange took place between the accused and another member of the audience:
MEHANNI:
is that - is that - is that wisdom and kindness to kicking people out of their houses?
BAKR:
Yeah, I say this - this is not dawa
MEHANNI:
I'm just asking you, is that - is that —
BAKR:
This is - we're talking about politics - - -
MEHANNI:
— the way that we should —
BAKR:
This is what happens when you talk about politics.
MEHANNI:
This is not politics. I'm talking about - you're talking reference in - in the Koran. We're going back to the Koran.
A further exchange then took place between Ms Brockie and the accused:
BAKR:
I just wanted to mention something in regards to, you know, Austr Australian Government and the Israeli Government and the American Government, they need to stop - they - first of all, they need to leave our countries, exit from our countries, go back to their own countries, stop killing and butchering the Muslims when you come to our countries.
BROCKIE:
Okay. But if they don't - and there's no sign that that is happening, you know, i mean, if that doesn't happen then what happens here?
BAKR:
Well, the Australian Government is bringing - they're bringing harm to themself and they're bringing harm to the Australian citizens here —
BROCKIE:
In what - in what sort of way are they bringing harm?
BAKR:
Well, they're - they're bringing physical - you know, like, whatever- anything. If they get - if they're - if they're gunna leave their troops in Iraq, for example, or if they're gunna leave their - in - in Palestine or they're - if they're gunna leave in the Israel or in Afghanistan, if they're gunna not do anything about this, what's happening to the Muslims, then something's gunna happen here.
BROCKIE:
What sort of —
BAKR:
And, again, I'm —
UNKNOWN MALE:
Can I —
BROCKIE:
Yes. What do you mean by that?
UNKNOWN FEMALE:
We don't know.
BAKR:
I've - I've asked the - I've asked the detective. I dunno anything. I'm just saying, this is my opinion, yani, it's – it’s - - -
TABBAA:
I think what he's trying to say is they're creating radiicalisation - - -
(indistinct conversation).
BAKR:
Yes.
Following further exchanges with other people in the audience, Ms Brockie then returned to the accused and the following exchange took place:
BROCKIE:
Where do you get your information from, Abu BAKR, about whats going on?
BAKR:
Well, as you can see, it's all over the news, isn't it? And if s all on Twitter and Facebook and —
The accused’s solicitor intervened again and said:
So it must be true.
The exchange continued:
BAKR:
Yeah. So the---
BROCKIE:
But where else do you get your information?
BAKR:
That's all. That’s where I get it from.
BROCKIE:
Who do you listen to? If you don't listen to the Imams, who do you listen to?
(indistinct conversation)
BAKR:
I read books. I study, you know, I've - I've went to Egypt, I came back. I've started a little bit in Egypt but —
BROCKIE:
And you go to a small Islamic Community Centre in Sydney?
BAKR:
Yeah, yeah.
The accused’s solicitor intervened again and said:
Hey, don't - don't talk anymore about it, okay, she's setting you up.
The accused then said:
Yeah, anyway, it all comes down to, you know, reading, seeking knowledge and that’s it. And once you've seeked that knowledge and not sugar-coated the -the - the knowledge that you've seeked, yeah, and not sugar-coated the preaching of islam, then you'll know, you know, Islam -this is what Islam means and not what islam, you know - he's got an opinion of what Islam - he's got an opinion of what Islam, what it means. I got a -I got a opinion about it according to Koran and Sunnah, that’s it.
The accused and his solicitor left the studio before the program ended.
The YouTube Footage
A DVD of YouTube footage sought to be relied upon by the Crown became Exh. R on the present application. The footage is entitled “A DIRECT MESSAGE TO THE SECRET SERVICES – A CALL TO TAHWEED”. It depicts the accused engaging in what might be described as a monologue apparently directed to law enforcement, and quasi law enforcement, agencies. A transcript of what the accused said is as follows:
0.14- Indistinguishable
0.31
0.36 To all of the Muslims out there in the world, and um, I would like to
forward the message, um to the secret services of our time, MI5, Mi6, MI7, FBI, CIA, ASIO, um all of, the rest of the secret services, in each and every one of the countries.
The message I would like to forward to yous is, the message of Tawheed. The message of? The message to believe in one God and to believe that Mohamed is his last and final messenger.
[Foreign language]
This message that I will forward to you is a message in belief and belief in one God. In believe in one God and to believe that Allah is the only legislator and He is the only law giver and obedience is only to Him. Obedience is not to man. Obedience is not to a woman. Obedience is not to make kind or human, but obedience is to God alone, without associating [indistinguishable] towards him.
Or either it could be in legislation, or could be worshipping. Someone besides God, besides Allah
So my, so the message that I am giving yous, ah, to all of yous, ah, the people who work, work in the secret services, the people who are in charge of the secret services, my message is clear.
My message is to believe in Allah and believe that Mohamed [indistinguishable] is his last and final messenger.
This is my message.
Accept Islam as your salvation. Because, I swear to you, I swear to you, that a day will come when it will be too late.
That day will come when, on the day of judgment, and on the day of resurrection, you will be saying [foreign language]
You will say, I wish I was made out of dust. I wish I was made out of dust.
You will regret, the day, you will regret the day that when Allah, he orders his angels to drag you on your faces to the pits of hell fire. This is, this is the day you will regret it.
You will regret it. The day the angel of death comes and rips the soul out of your chest. This is the day that you will regret it.
The day that you will regret it. You will be put in your black hole. You will be put in your grave. That's the time when you will regret it. That's the time when you, when, when, you said, I should of, I should of listened to that Muslim.
I should have listed to that believer. That believer, the one that submitted to Allah and believed that Mohamed [foreign language] is the last and final messenger,
I should have believed him and I should have became a Muslim.
Then again, Allah says there is no compulsion in a religion. Meaning, I
can't force you to become a Muslim, but I directly give you the message of Islam because it is, ah, it is my responsibility as a Muslim, to convey the message of Islam.
To convey the message of Islam and to invite all of the non-Muslims to Islam. I am directly inviting all of the secret services around the world to Islam.
I am directly inviting yous to Islam, so I ask you, by Allah, I ask you, why is it that you do not accept Islam?
Why don't yous accept Islam as your salvation?
Isn't Islam the truth?
Is not Islam the truth?
Is not Islam the religion, huh, that came, that came to spread the word of truth
And what does God and Allah say in the Koran?
[foreign language]
The truth has come to smash the falsehood. The truth has come to smash the falsehood.
Then again, many Mus, many, many non-Muslims are becoming Muslim every single day.
5.00 Three, ah, ah, every Sunday, three people become Muslim, where I live.
Three people become Muslim every Sunday. Islam is the most fastest growing religion worldwide and Allah says in the Koran
[foreign language]
That, that the dean of Allah is you will dominate over all other religions whether the [foreign language] like it or not.
Who are the [foreign language] and the [foreign language] are the ones that do not submit themselves to God, to Allah
The [foreign language] are the ones that are not Muslim, but they are the ones who are the disbelievers. Who disbelieve in Allah and His messenger.
So, my message is to yous is to believe in Allah and to believe that Mohamed [foreign language] is the last and final messenger and my message is to leave and to not obey a man or a man-made law system because then again, when you are obeying, a man or a woman, that is not implementing the laws of Islam or the laws of a religion, for example, then that means you are worshipping them. You are worshipping the, the, the leader.
You are worshipping the [indistinguishable] insane. You are worshipping the leader. The human, because he is not ruling with the Holy book of God. In Islam, we cannot obey man-made law. We cannot obey a man that's not ruling with the Sharia.
Because when we obey a man, that's not ruling with Sharia, then this means we are worshipping him and obedience is a type of worship.
And when you are obeying a, a ruler that is not worshipping the, the, the law of God, you are worshipping him. But, if the leader, he is implementing the law of God, and you are obeying the leader, you are not obeying the leader in reality but you are obeying the leader, ah sorry, you are not obeying the leader in reality but you are obeying a lost [foreign language] and you are obeying [foreign language], the last and final messenger.
So, accept Islam as your salvation to, ah, accept Islam as your salvation, the secret services out there, um, and, ah, when or if yous watch this video, if yous watch this video, if you get a chance to watch this video, if yous get a chance to watch this video, and yous think of, and yous think of be.., and yous think of becoming a Muslim, or yous are thinking of becoming Muslims, don't forget, to spread the message of Tawheed. Don't forget to spread the message of [indistinguishable].
Don't forget to spread the message of Islam. The religion.
That is the fastest growing religion worldwide. And no matter, how many, no matter how many Muslims is in prison, no matter how many Muslims are killed, no matter how many Muslims you rape, no matter how many Muslims is bombed, on top of the skies, is bombed from the skies, no matter how many things yous do to the Muslims, Islam, at the end, will become victorious.
Islam, at the end, will become dominant. Islam, at the end, huh, will be the most victorious religion and it will be the most dominant religion worldwide.
Everyone, and just remember, it wont be the majority that will be giving victory to Islam, it will be the minority.
It will be the minority. It will be the minority that will be giving victory to Islam. It will be the [foreign language]. It will be the strangers. Because, then our again, our Prophet Mohamed, peace be upon him, he has said [foreign language]
Islam started as something strange and it will go back to something being strange. So glad tidings to the strangers.
So Islam, he did not come as something integrated. It did come as something integrated or isolated, but it came as something strange. It came as something strange. So this is why, when we carry our black flag in the street, people look at us and say, they look at us as if we are strangers. They look at us, ah, as if we are strangers.
We walk in the street with a beard. They at, they, they, they look at us as if we are strangers. Because Islam came as something strange. It came as something unknown. It came, without even telling the people, that I am coming. It came. And it spread from one nation to another.
It spread from one village to another. It spread from one town to another, until it conquered the whole world and in 1924, the Islamic State was destroyed.
But then again, but then again, Islam, this time, it will come back and not only it will come back, but it will come back in a stronger way and it will come back in a stronger form.
This is Islam.
10.00 This is how Islam is going to come back this time.
And, Allah, he has promised the believers, victory. He has promised the Muslims, victory. Whether we like it or not.
But then again, but then again, it is an honour to be victorious. It is an honour to become Muslims. It is an honour to be Muslims. It is an honour to raise the flag the flag of [foreign language] Mohamed [foreign language]. This is the honour. This is our privilege and we are honoured to become Muslims. We are honour, we are honoured to be Muslims and to believe in Allah and believe that Mohamed, peace be upon him, is the last and final messenger.
Then again, people talk about the rulers having, ah sorry, the so call, the so called Muslim rulers. People talk about them being Muslims.
My message is to yous, ah, secret services, right, that if yous do become Muslims, and if yous do think of becoming Muslims, then, the first thing that yous do, the first thing, is yous call your leader, the leader, the one that is leading the country, you call him or her to Islam.
Now, people talk about the so called Muslim leaders being Muslims. Now, the rulers of the Muslim world have Iman. And, it, and it is as follows.
Number 1: to believe in the American government, in its lordship, Godhood, names and attributes.
Number 2: to believe in the secret hands behind the American government.
Number 3: to believe in the ambassador of the American government.
Number 4: to believe in the laws and democracy of the American government.
Number 5: to believe in the reward and punishment from the American government.
Number 6: to believe in the decree of the American government, whether good or evil.
The rulers today do believe in practising fast [indistinguishable]. And they are:
Number 1: to testify that there is no God, but he American president and that his Ambassador is the messenger of this God.
Number 2: to establish the obligatory obedience while facing the White House, more than five times a day.
Number 3: to give [indistinguishable] to the American government.
Number 4: fasting eternity with ones tongue from saying anything negative regarding the American government even if just one word.
Number 5: pilgrimage to the White House for whoever is capable or incapable of doing so.
So, this is what it comes down to. This is what it comes down to. These sort, these, these, these so called Muslim rulers, this is what they do. They bow their head down to America. They bow their heads down to Israel. They bow their heads down to Britain.
So, it all comes up to yous, CIA, the FBI, you know, all of those secret services, all of yous secret services.
Us Muslims, we know that you know the truth. Us Muslims, we know that you know Islam is the truth.
Us Muslims, we know that you know the history of Islam. Us Muslims, we know that yous know that Islam is spread by the swords.
That is Islam is spread by the sword.
Yes or no. It did. It did spread by the swords.
How can a religion not spread without using the swords?
How can the religion spread without using the swords?
If you go up to a leader and ask the leader, because no way in the world, you are going to go up to a leader, and this leader has so much power in his hands, hes, he is capable of, of doing anything, he has got all this power, he uses it, he has got this money and everything. Now if you are going to go up to him and say we are going to take over, what do you think he is going to do?
He is going to pull a gun of some sort on your head, or, or on your neck and say alright, what you gonna take over? Come on, take over.
This is why Islam spreads by the swords.
But, first of all, when we had an Islamic State and when we conquered from land to land, yeah, we invited the leader to Islam first, and if he, and if he did not want to accept Islam, then he would have to pay the [indistinguishable].
And if he did not want to pay the [indistinguishable], then he would have to go at war with the Muslims, fight the Muslims. This is how Islam spread.
Then again, if, when, when, whenever the Muslims, whenever the companions of the Prophet Mohamed [foreign language] conquered a land, and there was pagens and there was non-Muslims living in that land, the Muslims would not kill them non-Muslims. The Muslims would leave them non-Muslims.
15.00 The Muslims would deal with them justly. Untoday. Unlike today.
Yous come to our lands and yous bomb and rape and kill.
And butcher our, and butcher the Muslims.
When yous take over, and then yous calls the Muslims terrorists.
Think about it, use your heads. Use your heads. Who's the terrorists?
What is the meaning of terrorism?
Who are the terrorists?
Are the terrorists, are the terrorists the ones that want to establish the, the, the, the law of God and get man out of this democracy, get man out of the, the chains and shackles of the democracy, out of the man-made law system, out of the injust system.
There, there is, there is brothers, there is Muslims sitting in Guantanamo Bay without a charge or trial. Innocent Muslims, 14 year olds, 15 year old boys. Sitting in Guantanamo Bay.
What do yous have to say about this? Secret services, what do yous have to say about this?
I tell you something. In Islam, and God says in the Koran, [indistinguishable]
[foreign language]
Forward your proof if you are truthful.
And the proof, in Islam, the proof, it makes you truthful.
When you forward your proof about something, it makes you truthful.
You can't just, ok, say, we're gonna cancel this guy's passport and say 1, 2, 3,we are gonna cancel his passport, say he doesn't go here or there, wy do you cancel this brother's passport?
For what?
For what? Out of suspicion?
In Islam, we cannot even be suspicious towards our own brother. Because, because Allah says, [foreign language]. The believers are a single brotherhood.
So, we cannot even be suspicious.
In Islam, if you want to prove something, or accuse someone of doing something, then you have to prove that with hard-core evidence.
In hard core evidence, that's the wisdom behind Sharia law. That's the wisdom behind the Islamic law.
The Islamic State. And if yous look, if you actually just look, at the Islamic law and the Sharia law, then yous will find, yous will find there is wisdom behind it.
But then again, Allah tells us the truth.
He says [foreign language]
[foreign language].
The Jews and the Christians they will never ever be satis, satisfied with you until you follow their way.
Until you follow their way.
What does Allah he also say?
17.28-17.45 [foreign language]
The people of the book, the people of the book
[foreign language]
They wish, huh, they wish for you
[foreign language]
They wish for you to reject faith, and become like them.
Hatred, has, ah, the, the, the envy in their heart
[foreign language]
They have rank, hatred in their heart towards you, towards yous, towards us, towards the Muslims.
So, Allah is telling us, he is telling us, what is in the heart of, of Obama.
What is in the heart of Tony Blair, or Cameron?
What is in the heart of George Bush?
What is in the heart, of all these world leaders?
What is in the heart of the secret services?
What to, what do they think of Islam?
Why was Obama so concerned about Syria?
Why wasn't he concerned, concerned about the, about, about the kids getting slaughtered and butchered in Iraq?
One million Muslims slaughtered and killed.
Why wasn't he concerned about the Palestinian kids, kids getting killed by Israel?
Now he wants to be concerned about Syria?
Now he wants to be concerned about the Syrian kids being chemical bombed?
And he wants to show, to show us his crocodile tears?
Well, nuh, believe his crocodile tears?
Because, Allah tells us the truth and Allah tells us what's in your heart.
And Allah tell us what's in their heart, what's in the leader's heart.
What's in these tyrants hearts.
What's in these [foreign language] heart.
Allah tells us what's in your hearts.
And Allah tells us that yous wish to distinguish the light of Allah, but yous will not be able to distinguish the light of Allah.
But yous will not be able to distinguish the light of Allah and those secret services, I will leave you with one thing and I will give you one more message.
Accept Islam as your salvation.
Because, I swear to God, and I swear by Allah, that when Jesus comes back, when Is Allah Islam comes back, when he comes back, he will break the cross.
He will break the cross and he will abolish the [indistinguishable]. And he will kill the pig.
And when he comes back.
20.00 By Allah, there will no, there will not be any Jesia (?).
Its either you will become a Muslim, and you will believe in Allah, or you will die by the sword.
When Isa, when Jesus, peace be upon him, he is gonna come back, so no matter what yous do, no matter what yous do to Islam, no matter how yous work and plan and form and do this and do that to destroy Islam, no matter what yous do, very [indistinguishable] the best of planners, cause Allah says [foreign language].
That is, plan, plan, but Allah is the best of planners.
[indistinguishable] Islam will be victorious.
Victory is for Islam. Victory is for the Muslims.
And then again, to the Muslims out there, you can't just be sitting down being a spectator. You have to, you have to, have this type of [indistinguishable] in you.
You have to play the ball, or play the game of [foreign language]
Huh, the camp of Iman and the camp of [foreign language]
You either in the camp of Iman or the camp of [foreign language]
You either, you either in the camp of faith or you either in the camp of disbelief.
And the one that is in the middle is a [foreign language]
So, you either with the camp of Iman, in the camp of Iman, are the Muslims in a straight forward.
And tell the [foreign language] and tell the secret services, and tell the leaders, the world leaders, the truth, straightforwardly, not sugar coating the [foreign language]
Not, sugar coating the [foreign language]
Not, sugar coating the [foreign language] of Islam
If you ae going to tell the leader, Allah says [foreign language]
You tell him the right of legislation is for [indistinguishable]
And here are you, who are you to legislate?
Who are you to legislate?
On, on what, uh, uh, uh, who are you to legislate?
Your own legislations.
Verily, man does not have the right to legislate law and order. Verily, woman or man or human beings does not have the right to legislate law and order. Verily, Allah has, [indistinguishable] is the legislator, and he has the right to legislate, ah legislate law and order.
And then I ask Allah's [foreign language]
I ask Allah, I ask God to guide yous to Islam.
I ask God to save yous from the torment of hellfire, because, I swear, if yous are not accepting Islam, and I am telling yous, if yous do not accept Islam, and look at me when Im, and look at me, and look at my eyes, when I am talking to yous, because, I am speaking the truth. And yous know it is the truth.
But then again, some of yous cannot hand the truth. The secret services out there. Some of yous cannot handle the truth. And yous cannot handle the truth.
This is why yous put so many Muslims in prison today.
When, a Muslim is speaking the truth, about what yous are doing to the Muslims in overseas. About what yous are doing to the Muslims in the west.
Putting, putting, putting them in prison, speaking the truth. That itself is a national threat to security. This is why there is some brothers, ah, here, ah, in Sydney, Australia, for example, they have lost their passports.
They have lost their passports.
They have lost some, brothers have lost their passports in UK and been thrown in prison.
This is why, speaking the truth, that itself is a national threat to their security.
A national threat to the security.
A national threat for speaking the truth.
Give me a break.
[foreign language]
You know, [foreign language], um, and the secret services out there, take my message seriously, and um, um, think about Islam and what it is, its not based on terrorism, alright, you know, its not based on killing the innocent, but, I know the, the laws of democracy are based on killing innocent, um, and the laws of ah Islam are not based on killing the innocent, they are, it is just based on justice and, ah, ruling with justice and giving each other, ah, ah, each other each other's right to each other, ah, whether he is a Christian, whether he is a non-Muslim or whether he is a Muslim, ok.
So, in Islamic State, we treat, even a non-Muslim, justly and we give him his rights ah, in Islamic State.
I will leave it at that, [foreign language]
In my view, part of the underlying purpose of enacting ss. 3D and 3E was to provide an avenue for the investigation of criminal offences in a way which had proper regard to the right of an individual to his or her privacy. The decision in George v Rockett supports the conclusion that insistence upon strict compliance with provisions such as s. 3E(5)(d) is to do nothing more than give effect to such underlying purpose.
In R v Alqudsi [2015] NSWSC 1615, Adamson J was called upon to consider the question of the validity of a search warrant in circumstances which had some similarity to the present case, although the position taken by the Crown (having regard to the facts) was different, and the two submissions now put by the Crown were not put to her Honour. Her Honour made a number of observations which are relevant to the present case, namely that:
(i)by enacting s. 3E of the Act, the Parliament had conferred a substantial power upon the executive to invade the privacy of individuals, and to intrude upon their property rights (at [54]);
(ii)had it been the Parliament’s intention that irregularities be overlooked or forgiven, it would have been open to include a provision to that effect in the Act (at [55]); and
(iii)the Act contained no provision that regulated the consequences of alterations or deletions in a warrant (at [56]).
Each of these observations, with which I respectfully agree, fortifies the view I have reached that the Crown’s submission should be rejected. Her Honour’s observations at [55] are of particular significance. Her Honour noted that there are provisions in other statutes which reflect a clear intention on the part of the Parliament that certain irregularities should not invalidate a warrant. Section 76 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) is but one example. In my view, the absence of such a provision in the Act says much about the intention of the Parliament in enacting s. 3E, and tends very much against the submission of the Crown.
It is also necessary to bear firmly in mind that a search warrant is a particular kind of instrument, vesting the police with extraordinary powers. This is a further reason why it has been consistently held that statutory provisions relating to such warrants must be met with strict compliance. As Adamson J said in Alqudsi (at [57]-[58]):
[57] The Crown’s submission that FA Cole’s endorsement can be simply disregarded appears to be based on the assumption that a warrant ought be treated in a similar way to other legal documents, such as a will or a deed where an amendment, if irregular, is, in some circumstances, simply treated as of no effect, leaving intact the original document. For the reasons given above, although R v Pettit appears to support that proposition, it only arose per incuriam.
[58] I do not regard such an approach as appropriate in the context of a warrant. Concepts which apply to the construction of other legal documents ought not be assumed to apply to warrants: King v The Queen [1969] 1 AC 304 and 312 per Lord Hodson. The Crown’s argument, if correct, would subvert the requirement of certainty. As was said in Taikato v The Queen (1996) 186 CLR 454 at 466 (Brennan CJ, Toohey, McHugh and Gummow JJ):
‘The operation of the criminal law should be as certain as possible. If the interpretative choice is between making a value judgment and applying a rule, a court exercising criminal jurisdiction should prefer the rule’.
As to the Crown’s second submission regarding agency, I was referred to the decision in Christie v Permewan, Wright and Co Limited [1904] HCA 35; (1904) 1 CLR 693. In that case, Griffith CJ observed (at 700) that it is a general rule of law that what a person may do himself, he may do by an authorised agent (see further O’Reilly v State Bank of Victoria Commissioners (1982) 153 CLR 1 at per Gibbs CJ at 11, and per Wilson J at 32-33).
The Crown acknowledged that acceptance or rejection of this submission depended upon particular factual findings being reached. The Crown submitted that I would be satisfied that at the time of handing over the warrants Agent Hanks said to Agent Griffin words to the effect “write your name on this” and that this amounted to the necessary authorisation to support a relationship of agency existing between them.
Agent Hanks gave evidence (at T14 L37-39) that in respect of each of the warrants she asked Agent Griffin to “put his name on that” and then observed him write his name on each warrant while he was standing next to her. Although Agent Griffin said (consistently with Agent Hanks) that he had been handed both documents, he also gave evidence (in the passages set out in [46] and [48] above) that Agent Hanks had asked him to place his name on the documents for the purposes of acknowledging receipt of them. He also gave evidence (in the passage set out in [47] above) that he regarded himself as the new executing officer.
I am satisfied on the evidence that Agent Hanks asked Agent Griffin to place his name on each warrant. That conclusion is consistent with the evidence of each of them. However according to Agent Griffin, he was asked to placed his name on each warrant, not for the purposes of any authorisation, but for the purposes of acknowledging receipt.
It may be that from his perspective, Agent Griffin saw himself as the new executing officer. However, in circumstances where I have formed the view that all of the officers who gave evidence before me did their best to be truthful, there is no reason to reject his evidence that he was asked by Agent Hanks to sign the warrants for the purposes of acknowledging receipt of them. There is further support for that conclusion in the evidence given by Agent Hanks, who said that as far as she was concerned, all that was required was the crossing out of her name and the insertion of the name of another officer in lieu thereof (at T14 L44 – T15 L8).
In these circumstances, and based on the evidence before me, I am unable to accept the Crown’s submission as to agency.
In my view, the failure on the part of the police to comply with s. 3E(5)(d) of the Act renders each warrant invalid. It follows that any evidence obtained as a result of the execution of either warrant was obtained in contravention of an Australian law. In these circumstances I turn to consider whether that evidence should be excluded.
ADMISSION OF THE EVIDENCE OBTAINED PURSUANT TO THE WARRANTS
The relevant statutory provisions
Section 138 of the Evidence Act 1995 (“the EA”) is in the following terms:
138 Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence, and
(b) the importance of the evidence in the proceeding, and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and
(d) the gravity of the impropriety or contravention, and
(e) whether the impropriety or contravention was deliberate or reckless, and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Submissions of the Crown
The Crown submitted that even if I were to conclude that the warrants were invalid, I should nevertheless admit the evidence pursuant to s. 138 of the EA. In advancing that submission, the Crown relied upon the fundamental proposition that any breach on the part of the police was a purely technical one. The Crown submitted that the factors set out in s. 138(3), along with other factors, weighed heavily in favour of admission of the evidence.
Submissions of the accused
As detailed further below, Counsel for the accused conceded that a number of the factors set out in s. 138(3) weighed in favour of the admission of the evidence. However counsel for the accused took issue with the Crown’s submission that the breach was a technical one and submitted that the gravity of the contravention on the part of the police was “extremely high” because it was “something which has been continuing…within the AFP for years”.
Counsel for the accused further submitted that Agents Hanks and Griffin should have taken the time to satisfy themselves as to the appropriate procedure. Counsel went so far as to categorise their actions as “reckless”. Although he accepted that there was no evidence of mala fides on the part of either officer, he emphasised that each of them should have appreciated the significant step that they were taking in relation to each of the warrants, and should have ensured that what they were doing was lawful. Ultimately, he described their approach to the matter as “cavalier”.
Consideration
The onus is on the Crown to satisfy me that the evidence should be admitted. Section 138(3) mandates that I take into account the factors therein in making my determination. However, those factors are not exhaustive.
Counsel for the accused conceded that:
(i)in terms of s. 138(3)(a), the probative value of the evidence “seemed high” (at T105 L39);
(ii)in terms of s. 138(3)(b), the evidence was important in the Crown case; and
(iii)in terms of s. 138(3)(c), the nature of the alleged offence was obviously serious.
Counsel also specifically eschewed any suggestion of mala fides on the part of either Agent Hanks or Agent Griffin. The effect of counsel’s various concessions was that each of these matters weighed in favour of the admission of the evidence. Counsel did not suggest that the contravention that I have found occurred was contrary to, or inconsistent with, the right of a person recognised by the International Covenant on Civil and Political Rights (s. 138(3)(f)). There is no evidence of whether or not any other proceedings are likely to be taken in respect of the contravention (s. 138(3)(g)).
The principal submission advanced by counsel for the accused was that the gravity of the contravention of s. 3E(5)(d) of the Act was “extremely high” (s. 138(3)(d)). Whilst I would not elevate it to that level, I have already observed that it is not unreasonable to expect that police officers will properly familiarise themselves with statutory provisions under which they are operating. Clearly, that did not occur in the present case. That, against a background of inadequate training, is of some significance, as is the fact that compliance with s. 5E(3)(d) presented no real difficulty (s. 138(3)(h)). Such matters weigh in favour of rejecting the evidence.
Equally however, this was certainly not a case where there was a deliberate “cutting of corners”: Bunning v Cross (1978) 141 CLR 54 at 79 per Stephen and Aickin JJ. I am also unable to accept the submission advanced by counsel for the accused that the actions of Agents Hanks and Griffin were reckless (s. 138(3)(e)). As I have found, this was not a case in which either officer, seized of a proper knowledge of the relevant provision, simply decided to ignore it. The officers were, in fact, largely ignorant of the provision and/or its effect.
In my view, the considerations set out in s. 138(3) weigh heavily in favour of the conclusion that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained by virtue of the contravention that I have found occurred. Outside of the provisions of s. 138(3) it is also relevant that the cogency and reliability of the evidence is unaffected by the contravention.
For all of these reasons, I am satisfied that the evidence obtained by virtue of the execution of the warrants should be admitted as evidence in the Crown case at the accused’s trial.
THE INSIGHT PROGRAM AND THE YOUTUBE FOOTAGE
The additional evidence relied upon by the accused
Counsel for the accused adduced evidence (to which the Crown objected) which, it was submitted, was relevant to my determination of whether the evidence of the “Insight” program and/or the “YouTube” footage relied upon by the Crown should be admitted. It was ultimately agreed that I should receive this evidence and subsequently rule on its admissibility once I had heard from the parties. The evidence may be summarised as follows.
The evidence of Neil Mercer
Mr Mercer is a journalist who, in early 2014, was approached by the NSW Community Relations Commission to produce a series of short videos about the conflict in Syria and its impact upon the Australian community. Mr Mercer explained that although the project ultimately did not proceed to finality, he spoke with a number of members of the community (commencing at T69 L34). He said (commencing at T69 L49) that the aim of the project was to discourage young men from going to Syria to engage in warfare, and to try and explore the concerns of members of the community in that respect.
Mr Mercer said (commencing at T70 L23) that as part of the project he contacted the accused and interviewed him. In respect of that interview Mr Mercer gave the following evidence (commencing at T71 L31):
“Q. I'm going to ask you some questions in relation to the interview. If you can recall, to the best of your recollection, what the answers were given by the defendant. First of all, did you discuss with him whether he was proposing to continue to help people in Syria in some way or another over the next year or so?
A. Yes.
Q. Do you remember what his answers were to that question?
A. I think he said he intended to keep on speaking out, as he put it, telling the truth, and that's what he was going to do.
Q. Did you ask him if he would be prepared to go and fight overseas?
A. Yes.
Q. What do you remember he said to you in that interview?
A. He said he was not going to do that.
…
Q. Did he tell you about receiving a letter?
A. Yes.
Q. What did he say?
A. He said that he arrived home one day to, I think, find his parents with a letter. From recollection, they had opened it. It was from ASIO. The way he describe it to me in the interview was that he had his passport cancelled on the grounds that, as he described it to me, he had a jihadist mentality, that was the allegation, and that he was a threat to national security.”
Mr Mercer said (commencing at T73 L14) that in the course of the interview the accused had expressed the view that he thought it was “rather stupid, if he was a threat to national security, to allow him to stay in the country”. Mr Mercer also stated that the accused did not advocate the promotion of, or participation in, violence (T73 L17-24).
The further YouTube footage
Counsel for the accused also relied upon two further excerpts of YouTube footage, the first of which was entitled “Social issues No. 2” and the second “Adopt the morals and manner of Rassullah”, in support of the exclusion of the evidence relied upon by the Crown. Each piece of footage was played in its entirety. Speaking generally, each piece of footage depicts the accused again engaging in what might be described as a monologue and preaching aspects of the Islamic faith.
The relevance of the evidence relied upon by the accused
Counsel for the accused submitted that it was open to conclude from the evidence of Mr Mercer, along with the additional YouTube footage, that the accused was properly regarded as an “Islamic preacher” who did not advocate violence. It was submitted that I should conclude that the accused was a person who did “nothing more than someone by way of preaching Islam” in a way which was “totally unconnected” to the Crown case, and which was inconsistent with the Crown’s allegation that he was a person who promoted violence. It was submitted that merely because a person was “an avid believer in the Muslim faith” did not lead to a conclusion that he or she subscribed to the type of ideology alleged by the Crown in the present case. It was submitted that all of these considerations were relevant to the question of whether the Insight program and the YouTube footage relied upon by the Crown were relevant and admissible.
I accept unreservedly that simply because a person is a devotee of the Islamic faith does not mean that he or she promotes violent ideology. However, even if it were concluded that the evidence of Mr Mercer and the additional YouTube footage supported a conclusion that the accused was not violent, that does not render the Crown’s evidence inadmissible. As I have discussed below, the admissibility of the evidence relied upon by the Crown is determined, in the first instance, according to whether it is relevant in terms of s. 55 of the EA. If a conclusion is reached that it is relevant, a question will then arise as to whether it should be excluded pursuant to s. 137 of the EA.
It follows that in my view, the evidence adduced in the accused’s case on the present application is not relevant to the issues that I am asked to determine. The evidence is therefore rejected.
Submissions of the Crown
The Crown submitted that the evidence of both the Insight program and the YouTube footage was clearly relevant having regard to the provisions of s. 55 of the EA.
The Crown submitted that the Insight episode recorded statements made freely and openly by the accused which provided evidence of his:
(i)awareness and understanding of violent jihad as a religious cause;
(ii)adherence to a political, or ideological cause of violent jihad;
(iii)belief that Muslims were under attack in Australia; and
(iv)belief that the Government and population of Australia were oppressing Muslims.
It was submitted that each of those considerations was relevant, in a subjective way, to the accused’s understanding of the connection of the documents in question to a terrorist act, as well as being objectively relevant to that connection. In terms of the YouTube footage, the Crown submitted that the statements made by the accused established the very same matters and that for the same reasons, the evidence was relevant and admissible.
On the assumption that I reached such a conclusion, the Crown further submitted that there was no proper basis upon which to exclude the evidence pursuant to s. 137 of the EA. The Crown emphasised that the prejudice to which the section is directed is not prejudice to an accused’s interests arising from evidence which is capable of supporting a finding of guilt. Rather, it is directed to unfair prejudice arising from evidence that would illogically lead to a finding of guilt. It was submitted that in the case of both the Insight program and the YouTube footage, the evidence had significant probative value which outweighed any prejudicial effect. It was further submitted that the issues raised on behalf of the accused could be dealt with by appropriate directions being given to the jury.
Submissions of the accused
Counsel for the accused submitted that the evidence of the Insight program was not relevant because it addressed “issues far removed from the charge”. In developing that submission, counsel submitted that the program covered statements made in respect of a broad range of topics, many of which did not relate to the elements of the offence faced by the accused. A similar submission was made in respect of the YouTube footage which, counsel argued, showed nothing more than “a person espousing the Muslim faith as a preacher”. He submitted that at no stage of the footage did the accused advocate violence, destruction of property, or killing, and indeed did not touch upon any matters relevant to the charges.
In the event that I came to the conclusion that the evidence was relevant in each case, counsel submitted that its probative value was outweighed by the danger of unfair prejudice. The unfair prejudice was said to arise because (inter alia) the accused:
(i)had the appearance of being Middle Eastern;
(ii)was shown to be wearing a head dress and clothes bearing emblems about which many people could take an adverse view; and
(iii)was depicted, at least in the Insight program, “smirking” or being disrespectful.
Counsel also submitted that the Insight program was little more than a collective discussion, contributed to by many individuals who wanted to share their own views and opinions about some very distressing issues. It was submitted that in these circumstances, the accused should not bear responsibility for the statements of others.
In terms of the YouTube footage, counsel submitted that it posed a risk that “a member of the jury might misuse the evidence…or give it more weight than it is worth, or be influenced and thereby diverted from (his or her) task”.
Consideration
The first question for determination is the relevance of the evidence in each case. That determination is to be made according to the provisions of s. 55 of the EA which 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.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to:
(a) the credibility of a witness, or
(b) the admissibility of other evidence, or
(c) a failure to adduce evidence.
The test of relevance in s. 55 has been recognised as a wide one. The section requires that there be some rational effect on the assessment of the relevant probability, and such effect may be direct or indirect: Zaknic Pty Limited v Svelte Corp Pty Limited (1995) 61 FCR 171; (1995) 140 ALR 701. The broad nature of the section is evident from the use of the word “could” which, as it is used in the section, means “it is possible that it may”: Nye v NSW [2002] NSWSC 1270.
In the course of the Insight program, the accused stated (inter alia) that:
(i)the Australian Government needed to “stop picking on the Muslims here”;
(ii)ISIS did “not want to bring anything but justice”; and
(iii)justice was “giving the right of the people, giving the rights to the people”.
The submission of counsel for the accused that the subject matter of the Insight program is unrelated to any issue in the accused’s trial is reflective of a narrow approach which is inconsistent with that which is to be taken when determining relevance under s. 55. Needless to say, the accused’s trial is not about conflict in Syria, which was the subject under discussion. However what is in issue is the relevance of what the accused said in that context. In my view, in making the statements that he made, the accused was expressing an ideology which supports the matters set out in [138] above.
In the course of the YouTube footage the accused made several statements which, in my view, also provide evidence of the matters to which the Crown pointed. To begin with, and in light of the content of some of the documents found at the accused’s premises, it is relevant that in the course of the footage the accused sought to convey a “message” directed to “the secret services” which included the Australian Security and Intelligence Organisation (that organisation being referred to in item 371(c)). The message conveyed by the accused was expressed to be a “clear message” to “believe in Allah” before it was “too late”. The accused warned those to whom the message was directed that they would “regret the day when Allah … orders his angels to drag (them) on (their) faces to the pits of hell fire”. He described this as “the day the angel of death comes and rips the sole out of (their) chest” at which time they would “be put (their) black hole…(and) put in (their) grave.” In these circumstances I am not able to accept the submission advanced on behalf of the accused that he did not advocate violence. The statements I have cited are directly to the contrary.
The Crown must establish, as an element of the offence charged, a connection between the documents which were allegedly in the accused’s possession, and the preparation for a terrorist act. The Crown must also prove that the accused knew of that connection. The statements made by the accused, particularly those in which he advocated violence, are in my view clearly relevant to the issue of whether the accused had that knowledge.
The Crown must also prove that the terrorist act was to be done or threatened with the intention of advancing a political, religious or ideological cause. The various statements made by the accused are capable of supporting a conclusion that the accused advocated a particular religious or ideological cause. That, in turn, bears upon the issue of whether the accused was aware of the connection between the documents and the preparation for a terrorist act.
For all of these reasons, I am satisfied that the evidence is relevant in each case.
The final consideration is whether, having reached that conclusion, the evidence should be excluded under s. 137 of the EA which is in the following terms:
Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
Evidence does not fall within the terms of s. 137 simply because it is contrary to the interests of the accused. The danger of unfair prejudice arises if there is a real risk that the evidence will be misused by the jury in some unfair way: Doddridge v Tasmania [2010] TASCCA 18 at [23]-[25] per Crawford CJ, Tennent and Porter JJ agreeing, citing Festa v R [2001] HCA 72; (2001) 208 CLR 593 at [51] per McHugh J. The terms of s. 137 are such that if I come to the conclusion that the probative value of the evidence is outweighed by the danger of unfair prejudice, I must refuse to admit it.
In my view, the probative value of the evidence is high and I am not satisfied that any of the matters to which counsel for the accused pointed give rise to a danger of unfair prejudice which outweighs such probative value.
To the extent that any unfair prejudice could possibly arise from the fact of the accused’s appearance, or his demeanour, such matters can be properly addressed by an appropriate direction being given to the jury, reminding them that (inter alia) no adverse inference is to be drawn from such matters, and that it is the statements of the accused, and not his appearance, upon which the Crown relies. It is to be assumed that the jury would apply such a direction in their deliberations: R v Glennon [1992] HCA 16; (1992) 173 CLR 592 per Mason CJ and Toohey J, cited by Barr J (Spigelman CJ and Price J agreeing) in Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470 at [153].
I should, however, make some final observations in respect of the Insight program. Obviously, the Crown relies on statements made by the accused (which I have concluded are admissible) and not anyone else. Because of the nature of the program the Crown is entitled, in my view, to lead some evidence which provides the context in which those statements were made.
However, it is important that the footage of the Insight program be put before the jury in a form which minimises the statements made by other persons who were interviewed by the compere, and/or who were present in the audience. Such statements are obviously not admissible against the accused and the jury will be reminded of that. However, having viewed the footage I am of the view that those statements can be largely excised in a way which leaves sufficient material remaining `to establish the general context in which the accused spoke.
The Crown should have regard to these observations when determining how the evidence is to be adduced. Depending upon what approach the Crown might take, counsel for the accused is at liberty to raise the issue again should the need to do so arise. These observations do not, however, affect my conclusion that the statements made by the accused are clearly admissible against him, and should not be excluded.
ORDERS
Although I have upheld the position of the accused in relation to the validity of the search warrants, I have ultimately come to the view that the evidence obtained following the execution of those warrants should be admitted.
In these circumstances I make the following order:
(1)The notice of motion is dismissed.
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