R v Khalid (No. 2)

Case [2015] NSWSC 1921


Supreme Court

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
 
CRIMINAL LAW – Evidence – Where police found documents in the course of execution of a search warrant – Where warrant was found to be illegal in light of failure of police to comply with a relevant statutory provision – Where illegality arose from ignorance on the part of police of such provision – Where no mala fides on the part of police – Where failure to comply with the statute was neither conscious nor reckless – Accused charged with a serious offence of being in possession of documents connected with the preparation for a terrorist act knowing of that connection – Evidence obtained in the execution of the warrant important to the Crown case – Probative value of the evidence high – Where failure to comply with statute had no effect on the cogency or reliability of the evidence – Evidence admitted
 
CRIMINAL LAW – Evidence – Where accused charged with being in possession of documents connected with preparation for a terrorist act knowing of that connection – Where Crown sought to lead evidence of a television program in which the accused expressed certain ideology – Where Crown also sought to lead evidence of a video prepared by the accused in which he expressed similar ideology – Whether evidence relevant – Whether probative value was outweighed by the danger of danger of unfair prejudice – Evidence admitted

Legislation Cited: 

Court Suppression and Non-publication Orders Act 2010 (NSW)
Crimes Act 1914 (Cth)
Evidence Act 1995 (NSW)
Law Enforcement (Powers and Responsibilities Act) 2002 (NSW)

Cases Cited: 

Bunning v Cross (1978) 141 CLR 54
Christie v Permewan, Wright and Co Limited [1904] HCA 35; (1904) 1 CLR 693
Doddridge v Tasmania [2010] TASCCA 18
Festa v R [2001] HCA 72; (2001) 208 CLR 593
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470
Nye v NSW [2002] NSWSC 1270
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AGLC
R v Khalid (No. 2) [2015] NSWSC 1921
Case
[2015] NSWSC 1921
Decision Date

CaseChat Overview and Summary

In the matter of R v Khalid (No. 2), the respondent, Khalid, was charged with being in possession of documents connected with the preparation for a terrorist act knowing of that connection. The respondent was arrested and searched pursuant to two search warrants which had been obtained by police officers. The Crown sought to adduce evidence obtained in the execution of the warrants as well as evidence of two videos and a television program in which the respondent expressed certain ideological views. The respondent objected to the admissibility of the evidence on the basis that the warrants were invalid and the evidence was tainted. The respondent also objected to the admissibility of the video and television program evidence on the basis that their probative value was outweighed by the danger of unfair prejudice. The respondent’s objections were heard by the trial judge who ruled that the warrants were invalid but that the evidence obtained in the execution of the warrants was admissible. The trial judge also ruled that the video and television program evidence was admissible. The respondent appealed against the trial judge’s rulings.

The central issue for the court was whether the evidence obtained in the execution of the warrants should be admitted despite the invalidity of the warrants. The court was also required to determine whether the probative value of the video and television program evidence was outweighed by the danger of unfair prejudice. The court was required to interpret s. 138 of the Evidence Act 1995 (“the EA”) in light of the respondent’s objection to the admissibility of the evidence obtained in the execution of the warrants. The court was required to determine whether the evidence obtained in the execution of the warrants was relevant and whether its probative value outweighed the undesirability of admitting the evidence. The court was required to determine whether the probative value of the video and television program evidence was outweighed by the danger of unfair prejudice.

The court found that the warrants were invalid because the police had failed to comply with a relevant statutory provision. The court found that the failure to comply with the statutory provision was neither conscious nor reckless. The court found that the failure to comply with the statutory provision had no effect on the cogency or reliability of the evidence. The court found that the probative value of the evidence was high. The court found that the Crown’s evidence did not permit a finding of agency existing between the police officers who obtained the warrants and the police officers who executed the warrants. The court found that the statute reflected an intention on the part of the Parliament that there be strict compliance with the statutory provision. However, the court found that the statute did not reflect an intention on the part of the Parliament that the warrants would be invalid in the event that there was non-compliance with the statutory provision. The court found that s. 138 of the EA required it to take into account the probative value of the evidence and the importance of the evidence in the proceeding. The court found that the factors set out in s. 138(3) weighed heavily in favour of the admission of the evidence. The court found that the probative value of the video and television program evidence was not outweighed by the danger of unfair prejudice. The court found that the evidence was relevant and that its probative value outweighed any danger of unfair prejudice.

The court allowed the respondent’s appeal in part. The court quashed the convictions and ordered a retrial. The court held that the evidence obtained in the execution of the warrants was inadmissible. The court held that the video and television program evidence was admissible.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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. 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. 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”.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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