R v Mallah

[2005] NSWSC 358

Reported Decision: 154 A Crim R 150

New South Wales

Supreme Court

CITATION:	R v Mallah [2005] NSWSC 358
HEARING DATE(S):	31/1/05 - 2/2/05
JUDGMENT DATE :	11 February 2005
JUDGMENT OF:	Wood CJatCL at 1
DECISION:	Motion of Accused dismissed.

CATCHWORDS:	Criminal Law - pre-trial issues - notice of motion of accused to disallow tender of evidence.
LEGISLATION CITED:	Crimes Act 1914 Criminal Code Act 1995 Evidence Act 1995
CASES CITED:	DPP v Carr (2002) 127 A Crim R 151 DPP v Coe [2003] NSWSC 363 R v Blick (2000) 111 A Crim R 326 R v Chimirri [2002] VSC 555 R v Cummins NSWCCA 23 November 1998 R v Dalley [2002] NSWCCA 284 R v Dewhurst [2001] VSC 172 R v Em [2003] NSWCCA 374 R v Esposito (1998) 45 NSWLR 442 R v Helmhout [2001] NSWCCA 372 R v Juric [2002] 4 VR 411 R v Ladocki [2004] NSWCCA 336 R v Lisoff [1999] NSWCCA 364 R v MAI and Anor (1992) 26 NSWLR 371 R v Phan [2003] NSWCCA 205 R v Roba [2000] VSC 96 R v Suckling [1999] NSWCCA 36 R v Suteski (2002) 56 NSWLR 182 Ridgeway v The Queen (1995) 184 CLR 19
PARTIES:	Regina Zaky Mallah
FILE NUMBER(S):	SC 2004/2101
COUNSEL:	R J H Maidment SC with G J Bellew P I Lakatos P R Boulten SC
SOLICITORS:	Commonwealth Director of Public Prosecutions I V Knight Murphy's Lawyers Inc

LOWER COURT JURISDICTION:

- 59 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

WOOD CJ at CL

Friday 11 February 2005

2004/2101 Regina v Zaky Mallah

JUDGMENT

1 HIS HONOUR: The accused has been charged, upon indictment, with offences that:

1. Between about 2 June 2003 and about 29 September 2003 at Sydney in the State of New South Wales did an act, namely, he acquired a Sterling brand 0.22 calibre rifle, in preparation for, or planning, a terrorist act, namely, he threatened to kill officers of the Australian Security Intelligence Organisation or the Department of Foreign Affairs and Trade: s 101.6(1) Criminal Code 1995 (Cth);

2. Between about 28 November 2003 and 3 December 2003 at Sydney in the State of New South Wales did an act, namely, he sold to an undercover police operative a video tape recording, six photographs depicting the accused and a three page typed statement for the sum of $3,000, in preparation for, or planning, a terrorist act, namely, he threatened to kill officers of the Australian Security Intelligence Organisation or the Department of Foreign Affairs and Trade: s 101.6(1) Criminal Code 1995 (Cth);

3. Between about 28 November 2003 and 3 December 2003 at Sydney in the State of New South Wales:

(a) made to another person, namely, to undercover officer using an assumed name “Greg” (the second person) a threat to cause serious harm to a third person, namely, he threatened to kill unidentified officers of the Department of Foreign Affairs and Trade or the Australian Security Intelligence Organisation; and

(b) the third person is a public official; and

(c) he was reckless as to causing the second person to fear that the threat will be carried out; and
(d) he made the threat because of the official’s status as a public official; and

(e) the official is a Commonwealth public official.

2 Three pre trial motions have been brought on for hearing before me.

THE NEW SOUTH WALES POLICE SERVICE MOTION
[Paragraphs formerly numbered 3 - 27 not for publication]
MOTION OF THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
[Paragraphs formerly numbered 3 - 27 not for publication]

NOTICE OF MOTION OF THE ACCUSED

3 The substantial argument in this preliminary hearing concerned the motion of the accused to disallow the tender of the evidence relating to “Greg’s” dealings with the accused between 27 November 2003 and 3 December 2003, including the recordings of their conversations which were intercepted pursuant to listening device or telephone interception warrants. Additionally the motion seeks exclusion of the video tape and other items which were handed to “Greg” by the accused on 3 December. The submission which is advanced in support of the exclusion depends upon contentions that at the relevant times:

(a) Greg was engaged in conduct that was unlawful involving offences by him under ss 11.2 and 11.4 of the Criminal Code, in so far as his conduct was not covered by a Controlled Operations Certificate issued pursuant to the Crimes Act 1914;

(b) Greg was engaged in improper conduct in so far as he made misrepresentations concerning himself in his conversations with the accused, which led to the offending by the accused, to the admissions which were obtained, and to the handing over of the videotape.

4 As a consequence, exclusion of the evidence was sought under ss 90 and 138 of the Evidence Act.

BACKGROUND

5 A consideration of this motion requires some elaboration of the background to the case, and an understanding of what occurred in the course of the undercover operation.

6 The brief, which was tendered along with some additional exhibits, discloses the following matters, in summary.

7 On 7 June 2002 DFAT advised the accused that the Minister had refused his application for a passport, following an adverse security assessment supplied by ASIO, on the grounds that the Minister was of the opinion that “he was likely to engage in conduct that might prejudice the security of Australia or of a foreign country”.

8 On 12 June 2002 New South Wales Police conducted an informal interview with the accused during which he expressed views about becoming a martyr, of bringing Jihad to Australia, and of becoming a suicide bomber.

9 Between 2 June 2003 and 28 September 2003 telephone interception recorded the accused engaging in various conversations and text messages which, on the Crown case, are capable of being understood as involving inquiries about the obtaining of a weapon.

10 On 28 September 2003, acting on information that the accused had acquired a rifle from a man “Charlie” on 27 September 2003, a search warrant was executed by members of the NSW Police Service at the home of the accused. In the course of the search police found and took into their possession, amongst other things, a 0.22 calibre Sterling brand rifle, a magazine for that rifle containing three rounds, a quantity of 0.22 ammunition, a balaclava, a videotape, and a number of documents.

11 These documents included a handwritten message for ASIO concealed in the battery compartment of a tape recorder, referring to his complaints about being wronged by ASIO in denying him a passport, indicating an intention to “take ASIO building hostage”, and to “take the life of every ASIO officer I get my hands on”, and referring to the need for the government to “change, stop harassing Muslims, and stop spying on them, and stop supporting America and its government”.

12 In another document located in the same place there were statements to the effect that his target was ASIO and that he was declaring a personal Jihad against his oppressors “to please Allah” for the “weak or helpless Australian citizens who have had their rights abused, or their freedom taken away from them, or their privacy invaded”. It went on to note that he had chosen “to die to divert the attention of the government and its various organisations to a certain degree away from this blasphemy of certain individuals…”

13 Various other documents were seized, including one entitled “How can I train myself for Jihad” and one entitled “statements made by fone” apparently comprising explanations for various claims such as “I want to be a suicide bomber”, “I feel like hijacking a plane and hitting Canberra” and so on. Additionally, there was a copy of a transcript of an interview in which he had participated with Alan Jones on 15 October 2002, and a transcript of the Sunday Program on Channel 9 in which he had also participated.

14 Further documents seized included correspondence, apparently addressed to ASIO. Images were taken of documents purporting to be his last will, which was not, however, seized.

15 When the accused was taken to Bankstown Police Station, he declined the request of police that he be interviewed in relation to the location of the firearm at his premises.

16 After being charged in relation to the firearms offences he was, on 30 October 2003, convicted of those offences and was fined $1400. A Crown appeal was brought against that sentence which was listed for hearing in the District Court in March 2004.

17 An appeal to the Administrative Appeals Tribunal, which the accused had lodged in relation to the refusal of his passport application, was listed for a resumption of the hearing on 9 December 2003.

18 Between 28 September 2003 and 17 October 2003, further telephone conversations were intercepted which, on the Crown case, could be consistent with the accused making further inquiries for the acquisition of a weapon.

19 Further information was obtained which led to concerns on the part of police, particularly the Counter Terrorist Command of the NSW Police Service, that the accused might be planning a terrorist act, as a consequence of which a decision was made to conduct an undercover operation. It was known by that stage that the accused had been in contact with the media, particularly “The Australian”.

20 To that end, the services of the Undercover Branch of the NSW Police Services were engaged, and, at a briefing attended by Detective Inspector Schagen and Detective Sergeant Abeyasekara on 27 November 2003, “Greg” was supplied with certain information, including the fact of the prior arrest of the accused on the firearms offences, and the recovery of documents in his home, that were suggestive of a plan to kill ASIO operatives.

21 He was given instructions to endeavour to meet the accused, posing as a journalist, and to engage him in discussion.

22 It was the evidence of Greg, on the voir dire, that as he understood the operation and his instructions, at that stage, it was to speak to Greg and to establish whether he had a plan to cause serious injury or death to an officer attached to ASIO or DFAT. He also accepted that he understood that, if the existence of this plan was confirmed, the conversations with him would be likely to be used as evidence against the accused in a criminal prosecution. He also accepted that if the earlier possession by the accused of a rifle and the location by police of his papers came up in conversation, they could be addressed.

23 Following the briefing, Greg made a telephone call to the accused on 27 November introducing himself as a journalist who had read a recent article about him in the Australian newspaper and who was inquiring as to whether he could do another story on him. The accused volunteered that he had sold something to The Australian and had something else up for sale. The call culminated in the arrangement of a meeting with the accused for 28 November.

The 28 November Meeting

24 To that meeting Greg took a hand held recorder, an act that was consistent with his assumed role as a journalist. He also wore a listening device, pursuant to warrant, so as to secretly record their conversations.

25 It is pertinent to refer to some segments of this first conversation, so far as they are relevant for the objection, and for the consideration of any discretion that might exist, at common law, or under the Evidence Act, concerning the admissibility of the conversation, or any part of it.

26 Without being exhaustive, since there is a degree of repetition, relevant segments include the following exchanges, which occurred after the accused indicated that he wanted to check whether Greg or his car were wired (V1: Greg; V2: Accused):

“V2: Well what kind of questions are you going to ask me? So that I know.
V1: Ah, well really I’m lookin’ at um, um, what’s happened with your passport and…
V2: Mm him.
V1: ..and the sort of problems you’re facing there. And I’m looking at um, ASIO in particular.
V2: Mm him.
V1: Um, you know, ‘cause they’re tryin’ to get more powers and all the rest of it…
…
V2: All right. Ah, I just want to know what paper do you work for? You told me, so you’re an individual..
V1: Yeah, freelance. Freelance…”

27 The conversation continued after an inquiry by Greg as to what had occurred, in relation to his passport application, in the course of which the accused mentioned having been “interrogated” by ASIO officers as follows (V1: Greg; V2: Accused):

“V1: Do you know why, do you know why they picked you, though?
V2: Nuh, don’t have a clue.
V1: Like, have you done anything..
V2: No. I’ve got a clear record except for that, the armed rifle that I had in my house.”

28 He then said in relation to his concerns with ASIO and the Tribunal (V1: Greg; V2: Accused):

“V1: But in your own mind why do you think, why do you think…
V2: I’ve got a very good clue. It’s, they’ve intercepted some of my phone calls. Um, I’ve said things over the phone, that, “I wish to become a suicide bomber, I will die for my religion, um, um, I will die for any cause that’s worthy of living, worthy of life.”
V1: Mm.
V2: But they take it literally instead of taking it metaphorically…”

29 The conversation moved on, after further discussions in relation to the Tribunal appeal, to the police search on 28 September, after which Greg asked him some questions about the rifle charges, in the course of which the accused made reference to their outcome and to the Crown appeal. The conversation then returned to the Administrative Appeals Tribunal in respect of which the accused volunteered that he did not know if he should go on with it because of the “paperworks” that were taken out of his house.

30 The conversation continued in relation to the “Paperworks” (V1: Greg; V2: Accused):

“V1: Paperwork? What, what sort of paperwork are you talking about?
V2: Similar stuff to what The Australian had on the paper.”

31 Greg then asked him a number of further questions about the documents and what he intended to do with the letter (V1: Greg; V2: Accused):

“V2: Mm. Um, the thing is if I tell you then you might put it in the papers or you might give it up.
V1: Well..
V2: ‘Cause The Australian um, didn’t make a contract but I assured them that, “If you keep that a secret then I’ll give you something else that will be very useful in the future for your um, industry and your (unintelligible)”.
V1: Okay. Well like I said to you last night mate, that’s where I’m different. I’m not actually affiliated to any group. So um, you know, anything that’s confidence between us is confidence between us. I don’t have to disclose everything because I don’t have to report to anybody ‘cause I work for myself and try to sell my story.”

32 It was at this point that the accused asked that the recording of the conversation by the hand held recorder cease. Permission to restart it was not given.

33 The conversation continued in relation to the paperwork after Greg’s observation that “I want to know what you’re talking about” (V1: Greg; V2: Accused):

“V2: That’s the thing. Should I um, let you know? ‘Cause I’m – look, I’m not trying to say I don’t trust ya, but then again you have to understand where I’m coming from. Know what I mean?
V1: Mm. So what are you, what are you saying to me? That something you’ve got written in these notes is going to cause you some trouble?
V2: Not so much cause me trouble. It’s more like of a, of a revenge thing to what ASIO’s done to me in the past two years.
V1: Revenge against ASIO?
V2: Yep.
V1: All right. Well like I said to you before, um, I’m sort of trying to do some sort of story expose on the power that they’re trying to gain. It’s just getting out of hand. So um, bear that in mind. Um..
…
V1: …is your problem with that that you talk about things that you, you want to do or talk about things that have happened to you, or?
V2: No. It’s more like what I’m about to do.
…
V1: So you have all that spelled out there, what, what you intend to do?
V2: Yep.”

34 After some further discussions concerning the accused’s grievance and notes, the conversation continued (V1: Greg; V2: Accused):

“V1: And is that what’s outlined in your notes there?
V2: Yep.
V1: And when you say “take ‘em down with me” (stutters) who is that you’re talking about?
V2: ASIO.”

35 Then followed some conversations about what had appeared in the article in the Australian newspaper, what it was that the accused had given to the journalist for that newspaper, and why he had done so. Greg then returned to his cover story, and to the recently expanded powers of ASIO, commencing with the observation:

“Yeah. Well that’s basically what I’m doing is to try and support what’s happened to you because I’m looking at everything that’s happening with the powers that ASIO are getting. You know they’re going through um, through the government at the moment to try and increase their powers.”

36 After this he made inquiries as to whether the accused had “anything else at home” to which there was the following reply (V1: Greg; V2: Accused):

“V2: Just pictures.
V1: Mm.
V2: But they’re up for sale.
V1: Are they?
V2: Yeah. It’s how I work.. All the reporters know this is the only way Zak Mallah does business is you can take the story down but when it comes to pictures he ends up charging ‘em.”

37 Greg asked whether he had anything else or kept anything on computer, after which the accused volunteered that he was thinking of “dropping off the Tribunal case”, and offered the reason for that. The conversation continued in relation to what he had for sale and the asking price for it (V1: Greg; V2: Accused):

“V1: So what do I do? It’s up to them. It’s just that I know (unintelligible) do. I want to get my life together or there’s gunna be dramas.
V1: Yeah.
V2: And that’s why I sold the pictures, you know what I mean?
V1: Yeah.
V2: Just to pay off my bills, pay off that fourteen hundred dollar fine whatever.”

38 After identifying from the amount of the debts which the accused mentioned, that he was looking for about $3000, “depending on what Greg wanted”, the conversation continued (V1: Greg; V2: Accused):

“V1: What about photos? Things like the photos that The Australian printed.
V2: Like really we’ll go back to my house now, I can show ‘em to you. Um, we’ll make a price.
V1: And do you have anything else? You know is there anything else that I could make some money out of and you can make some money out of?
V2: I’d love to speak to you on so many things but they’re not – I don’t really know you yet…
…
V2: ‘Cause one day I’ll click, it’s gunna be breaking news.
V1: Mm.
V2: That’s when I need youse around…
…
V2: My lawyer gives me advice, don’t talk to journalists, don’t talk to reporters, but he doesn’t know really what I’m up to.
V1: Yeah.
V2: That’s why I need you guys, and him, for one day for that day. Um, ‘cause then I don’t know you yet, that’s the thing, that’s the only thing stopping me.
V1: Yeah.
V2: Now we can work together in a sense that when it comes to stories we can work together on that. When it comes to what I’m likely to do whatever, I need you out because I don’t want you to take my place. I don’t want the government think that this guy’s either (a) working for him or working with him, you know what I mean?”

39 After the accused referred to having “something you can make so much money from”, and to the Australian paper being “this close from getting it, I’m just waiting for a phone call”, the conversation continued (V1: Greg; V2: Accused):

“V2: How much money do you make for pictures and all that when you do sell ‘em out?
V1: Well that’s hard to say because it depends on who you sell ‘em to. If I was to sell – if I can get a good enough story together for say Time Magazine, then I make a lot of money.

…
V2: Well whatever I’ve got will hit Time Magazine and I’m telling you that (unintelligible) channel will be here too.
V1: The um, if it’s worth television time well then that’s worth a lot more too, you know.
V2: It’s worth television. I tell you that.”

40 The accused mentioned having sold some pictures to The Australian and to having said to its reporters that he had something else to give to them, and of waiting for a call, after which the conversation continued:

“V1: All right. So you are expecting to hear about that today?
V2: Yep. I said it better be today or then I’m gunna pass it onto someone else.
…
V1: Yeah. So if I uses what you’re talking about, if you’re saying it’s value for TV, I’m guessing it’s a video.
V2: Yep.
…
V2: How much money can you make for a video?
V1: Well if it’s – it depends what’s on it, Zak, it depends what’s on it because if there’s something that, for want of a better term, if there’s something that’s shocking…
V2: Mm him.
V1: …that is going to shock the public, then the TV channels will pay more for that to get that impact.
…
V2: It’s like my final message, you know what I mean?…
…
V1: Is it um, do you talk about, is it like um, I don’t know, a will or is it explaining what happened or why it happened or?
V2: Yeah it’s explaining the reasons and actions on my – the reasons and um, apparently the reasons why I’m likely to conduct this action.”

41 After Greg asked whether he could see the video, the conversation continued:

“V2: It’s not with me to set up. It’s at a mate’s house I got to go get it off him.
V1: Oh right.
V2: Just in case my house gets raided again.
…
V2: Um, this video’s extreme, it’s my final message. That day when it comes it’s gunna be breaking news hopefully. I’ll make sure it is and in the media I’m gunna die, I’ve got footage of anything of…
V1: Yes.
V2: ..as my last and final will. No-one’s got it at the moment.”

42 Arrangements were then discussed for there to be a further meeting at which Greg could view the video using some form of video equipment, after which there was some further conversation concerning Greg acquiring the tape and the amount to be paid for it (V1: Greg; V2: Accused):

“V2: Um, if you keep this um private and confidential (unintelligible) the thing is if you’re gunna sell it everyone’s gunna know who you are. You know what I mean? And you (stutters) have to prepare yourself for so much shit from the police.
V1: Yes.
…
V2: And if you’re up for that you’re more than welcome as long as you just say yes or no, if it’s no then you’ll call me up tonight and…”

43 After some further discussions the accused confirmed that “Three grand’s the mark”. The meeting concluded with the accused indicating, as he had to The Australian, that he was willing to do business, subject to putting Greg to a test, namely, that if he found police in front of his house in the next couple of hours then he would know that he had been betrayed. Although it was not said, the clear inference was that there would be no further discussions, if that occurred.

The 1 December Meeting

44 Greg then arranged a second meeting with the accused for 1 December. The objective, he said, was “firstly to view the videotape and then, depending on what was on it, to try to make arrangements to obtain it”. The overall operational objective, he said, was still to find out more information about any plan that the accused had. For that reason he took equipment to view and listen to the tape, some of the contents of which became incorporated in the transcript of the conversation which was again recorded by way of a listening device, on 1 December 2003.

45 He accepted that when questioning the accused about his intentions, he had done so in an endeavour to get him to provide answers that he expected would be used in evidence against him. He also accepted that he had indicated to the accused, in the course of the conversation, that he was not going to tell others anything about their discussions, and that he could remain of the belief that their conversations were “completely confidential.”

46 Again, without being exhaustive, there was an extended conversation during which the videotape was played, reference was made by the accused to his discussions with journalists from Channels 7 and 9, and the Daily Telegraph, and some questions were asked in relation to what appeared on the tape, and as to what was intended.

47 The following excerpts are of relevance (V1: Greg; V2: Accused):

“V2: Right, this is the deal, if – when you know this, the Australian newspaper knows this and um, um, Charles has got a bit of a hint, but I’m going to let you in on what’s going to happen.
V1: Mm him.
V2: The night that I was raided, I had a rifle as you know.
V1: Yeah.
V2: I was raided on Monday night, Thursday morning, I was meant to take the rifle to a building in the city and take the building hostage. Okay?
V1: Okay.
V2: That building, I won’t tell you what it is, later on I’ll tell you exactly what it is, but I’ve got three buildings in mind.
V1: Yeah.
V2: They’re all in the city.
V1: Yeah.
V2: Now I’m gunna be in the building, I told the Australian that I want youse to be in the building for a live exclusive interview. Now that they’ve rejected to buy this, it looks like I’m gunna give you permission to enter the building.
V1: Okay.
V2: For an exclusive interview between me and you. The police have no choice but to let you in, or then otherwise I’m gunna shoot someone in the building, you know what I mean?
…
V2: Um, so whoever purchases this, this tape, number one it’s got something that the media is gunna look up to.
V1: Yeah.
V2: Number two, um, exclusive interview between me and you.
V1: Mm him.
V2: Which this gives you more money, once you give it up.
V1: Yeah yeah.
V2: Number three, I got four demands. Number one, Alexander Downer gets down from power, number two, Denis Richardson, the head um officer, whatever from ASIO gets down.
V1: Mm him, mm him.
V2: My freedom is given back to me. And number four is I want my name – my file, Zak MALLAH to be cleared.
V1: Mm.
V2: Now I know the first two I won’t get – it’s automatically, that’s enough.
V1: Yeah.
V2: Then the – the squads are gunna come in, the counter-terrorism command, they’re gunna come in the whole streets gunna be closed.
V1: Yeah.
V2: The reporters are gunna be there. Now you’ve got an advantage that they don’t have.
V1: Yeah.
V2: You’re the only one that’s gunna be in the building.
…
V2: “Eye for an eye, freedom for freedom. I will free my freedom by death and take them hostage.” Cause once I’m in the building, it’s an automatic licence to kill, you know what I mean?
V1: Okay.
V2: They’re gunna get up there and they’re gunna shoot me, you know what I mean?
…
V1: Okay. (Pause) Mate um, that’s – that’s very heavy stuff. When we were talking about you selling this video, right, now I – I don’t know how to say this without making it sound as though its pushy, but like the video of itself isn’t worth much unless something happens, and I’m not saying go and do it.
V2: It’s not a problem, all I’m trying to say is I can take this with me to the building, you know what I mean?
V1: Right.
V2: And so whoever is willing to come up and give me three grand for it..
V1: Yeah.
V2: I’m willing to take it. That way the three grand’s with me so that when I die I’ll leave a message that this three grand is passed on to my family, you know what I mean?
…
V1: Okay. You said to me before that you were thinking of three buildings.
V2: Yep.
V1: What are you thinking of?
V2: Well I’ve mentioned two, there’s one I won’t mention at the moment. ASIO and the Department of Foreign Affairs.
V1: Mm.
V2: They’re the three main – ASIO is a bit of a problem, it’s a top secret location, but I can get access to it.
V1: Mm.
V2: Department for Foreign Affairs I need to check it out and see how many – just police are in there or not, ‘cause I want to last there for at least a couple of hours.
V1: Mm.
V2: To send my strong message out there before I get shot.
…
V2: Um, and there’s one that’s even easier than those two but I won’t mention it yet.
…
V1: Have you got yourself a weapon or something like that mate?
V2: It’s waiting for me, but I can’t – Islamically I cannot do anything or die as a martyr, unless all my bills are paid off.
…
V1: Okay, and so is that the reason that you’re putting prices…
V2: That’s the reason, that’s the reason.
V1: ..on the things that you have? So..
V2: Now you, I can make a deal with you. For three grand you can take everything pictures, that statement that’s worth one and these two together for three. It’s enough for me to pay off all my debt, okay? Say bye to family and friends, get myself a suit, fix myself up because I can ‘t just walk in there looking like a tragic junk.
…
V2: I’m telling you that though when that day comes, the whole street is going to be closed (unintelligible) the police surrounding us, the ambulance, the police, the counter terrorism command, the helicopters..
V1: Yeah.
V2: ..it’s gunna be breaking news, Channel Ten, Channel Nine, I’ll make sure you break the news, and everyone wants to go up there, well they’ll want a live exclusive interview, they’ve got to call in negotiators. I’m like, sorry mate, the only one I want up there is you..
…
V2: For a strong message and this is gunna be with you, I don’t know how, once it’s with you I don’t care how you do it, but as long as in a couple of days time this also hits the TV.
…
V2: So the choice is yours and if you decide to withdraw from this and I’ve got other reporters as well.

…

V1: So in effect I think what you’re saying to me is if I don’t take it and somebody else does take it, and you pay off your debts then it’s all systems go.
V2: Yeah, it’s all go. Green lights. If I get the three grand today, I’m off tomorrow.
…
V2: I want breaking news in less than two minutes, all right, the negotiator said, “All right we can’t have breaking news in two minutes, you have to give us at least twenty minutes, half an hour.” “Beautiful sweet. Half an hour, or I’m gunna take one down. I want to hit breaking news and then that’s when you come in.”
…
V2: Look, it’s a licence to kill. I’m gunna be shot, I’m gunna be killed, that’s the way the squad works. You know what I mean?
V1: It’s very heavy stuff mate.
V2: That’s the way they work mate, I’m really, I’ve come to a point where I’m gunna sacrifice my blood for myself, for my freedom for the Australian way of life ‘case they are a threat, you know what I mean? Few years ago I never had this thought of taking people hostage, killing people um, you know taking, it’s just – all this, all these pictures that I’ve made, this…
…”

48 Arrangements were then made for Greg to ring him back on the following day.

The 3 December Meeting

49 On the afternoon of 3 December 2003 at 4:30 PM a Controlled Operations Certificate was obtained pursuant to the Crimes Act. Evidence concerning the obtaining of this certificate was given by Detective Sergeant Abeyasekara, Detective Inspector Schagen and Detective Sergeant Gawel, the latter two of whom were attached to the Counter Terrorism Coordination Command.

50 Detective Sergeant Abeyasekara who was Greg’s supervisor in the Undercover Unit confirmed that, by 27 November, police had some information suggestive of the accused having a videotape that had been offered for sale, and that one objective of the operation was to discover if it did exist and if so to acquire it. He said that he had not personally considered the option of the accused being invited to speak to police or to surrender himself if he had a videotape and a plan in connection with it.

51 He said that, when he was first informed of the operation, he spoke to his coordinator, Inspector Mark Jones, about the possibility of obtaining a Controlled Operations Certificate, and was informed by him that he had mentioned the matter to Detective Inspector Schagen who was going to make some inquiries in relation to it.

52 He acknowledged that he had not been familiar with Part 1AB of the Crimes Act (Cth) dealing with Controlled Operations and had not read the relevant sections. He left it to Detective Inspector Schagen to make the necessary inquiries. He also acknowledged not being familiar, other than generally, with the Commonwealth legislation that criminalises conduct associated with acts of terrorism.

53 He confirmed that by the morning of 28 November, he had known of the recovery of the rifle, and of papers indicating the existence of a plan to kill ASIO operatives, and that Greg had on the preceding day posed as a journalist when speaking to the accused in order to arrange a meeting. While he had no specific recollection of discussing with Greg the topic of a Controlled Operations Certificate, it seems that his reconstruction, based upon usual practice, led him to a “vague memory” that it had been mentioned on 27 November.

54 He had no memory of whether or not Inspector Schagen had informed him of his opinion as to the need for a certificate on 28 November, but said he had a vague memory of a conversation concerning that matter after the second meeting on 1 December.

55 This followed, on his account, a discussion within the Undercover Unit involving its Commander, Chief Inspector Ian Bown, and other members, to the effect that it might be prudent to obtain a certificate before the third meeting and the purchase of the videotape. He did not give consideration himself to whether or not Greg’s acts might constitute offences under the terrorism laws, nor did he give consideration, prior to the third meeting, to whether his conduct might have involved inciting, or counselling, or procuring a crime.

56 Detective Inspector Schagen gave evidence of becoming involved in investigations in relation to the accused, he thought, on the night of 28 September 2003, shortly before execution of the search warrant. He said that he had been involved in the subsequent investigation concerning him. By 27 November, he said, he had reached the view that the inquiry would be assisted by an undercover operative posing as a journalist, in an endeavour to engage the accused in conversation. He acknowledged that the operation would involve the use of listening devices and that if evidence was obtained through their use it would be used in a criminal prosecution of the accused.

57 It was his recollection that he had discussed with Detective Sergeant Abeyasekara the possible need for a Controlled Operations Certificate before the first meeting, at which time he had decided there was no need for one as he did not consider that any unlawful activity was being undertaken by Greg. He did not do anything to check whether this was correct. It would appear that, in this regard, he relied upon the fact that there would be no commitment to acquire the videotape until it was known what was on it, as distinct from encouragement being given to the accused to produce it for viewing.

58 He confirmed that, on the night of 1 December, Detective Sergeant Abeyasekara had advised him of the Undercover Branch’s opinion that a Certificate may be required.

59 He rejected the feasibility of any alternative options to the use of an undercover operative, such as calling in the accused for interview under caution; securing his interrogation and production of documents or objects under the ASIO legislation; or obtaining the videotape by means of a search warrant, pointing out in the latter regard that there was no certainty as to its location, a somewhat accurate response having regard to the accused’s observation, during the discussions with Greg, that it was kept at a “mate’s house” to avoid being found by police.

60 Detective Sergeant Gawel who was seconded to the Joint Counter Terrorism Command and who, for that purpose, was sworn as a special member of the Australian Federal Police, gave evidence of being responsible, together with Detective O’Neil for the application for the Controlled Operations Certificate on 3 December. He confirmed being aware of the September arrest of the accused on the firearm charges, and of the belief that was held that the rifle had been associated with an attempt on the life of ASIO officers or Government officials. He said, however, that he had been unaware that the accused had declined to answer questions, at the time of his arrest, in relation to the firearm. The Certificate which he prepared disclosed that the offences which might be committed by the undercover officer, absent a Certificate, were those arising under the Commonwealth Criminal Code under s 101.5(1) of knowingly collecting or making documents likely to facilitate a terrorist act, under section 101.5(1) acts done in preparation for or planning terrorist acts; and under s 103.1(1) financing terrorism.

61 After the certificate was obtained (that is, at 1656 hours), Greg made arrangements by telephone to meet the accused in order to obtain the tape. He took with him $3000 to the meeting for the purpose of purchasing the videotape.

62 He agreed that his intention had been both to acquire the videotape and “to try and ascertain from [the accused] what his intention was and how serious it was”. Additionally he acknowledged knowing that the tape of the conversation was likely to be used as evidence against the accused in a criminal prosecution. He said that, consistently with instructions given to him by Detective Inspector Schagen the questioning also had the purpose of giving the accused the opportunity of saying that he “wasn’t serious” about the matters discussed. He accepted that he understood that the accused may well have already committed a number of serious offences and that any answers elicited could be used against him in the prosecution of those offences.

63 In the course of this meeting, Greg paid over the $3000, and in return obtained the videotape after checking it and confirming that it was the only one, in existence along with some photographs and some notes. During these discussions, the accused disclosed having withdrawn his appeal to the Administrative Appeals Tribunal because “its not worth it”. Without being exhaustive in relation to all of the relevant excerpts, having regard to the repetition of the message conveyed, that conversation included the following passage (V1: Greg; V2: Accused):

“V2: What’s your plans on how you’re going to sell (unintelligible) hit TV?
V1: Well that’s what I need to sort of work out with you, is we’re talking about this exclusive ah, exclusive – I’ll just put that in there. Um, the exclusive um, story…
…
V1: …you said um, that there were three places that you had in mind.
V2: It’s gone down, it’s gone down to two now.
V1: Down to two?
V2: I withdrawed, you know, the Tribunal. So that can’t be much of a (unintelligible) any more.
V1: All right. You’ve taken the Tribunal out?
V2: Mm.
V1: So who are you looking at, mate?
V2: Number one, it’s the ASIO building, but to get there is pretty hard.
V1: Yeah.
V2: So I’m not going to lie to you. Most probably it’s going to be the Department of Foreign Affairs and Trading.
…
V1: So that’s why I’m, I’m sort of saying you know, having given you the money for this video um, you know, I just want to make sure that…
V2: Nuh.
V1: ..you mean, you mean what you’re talkin’ about.
V2: (Stutters) If anything, it could be even tomorrow. Honestly. The problem is I might need three days to, three to four days to get access to that. Now, if it’s couple of boys are willing to give it to me. Know what I mean?

V1: They wouldn’t give it to you?
V2: Willing to give it to me.
V1: Oh, willing to give the gun?
V2: To give it to me, yep.
V1: What are you talking about, mate? A, a rifle or a hand gun?
V2: Oh, just a hand gun.
V1: All right.
V2: I don’t need a rifle any more, you know?
…
V2: Um, if I get one tonight…
V1: Yep.
V2: …I’m going to give you the – you, you must leave your phone on as well…
V1: Yep.
V2: …tonight at midnight.
V1: Oh fuck. Sorry. Yeah, keep going. I’ll leave my phone on tonight, yeah.
V2: If the gun, if the gun’s in my hand by tonight you’re going to receive a message by me saying um, the game is on.
V1: Yes.
V2: Tomorrow, be in the city. Um, I’ll give you an exact time.
V1: Yes.
V2: ‘Cause first thing in the morning I’m going to go down there, check out the building.
…
V2: (Stutters) It’s the Department of Foreign Affairs where the passports come out from.
V1: Okay. Is there somebody that, in particular there that…
V2: Oh mate, they’re all guilty of the same things, mate. They’re all run by Alexander Downer, mate.
…
V1: So you’re going to try to get hold of a hand gun tonight?
V2: Yep. Most probably I should have one by tonight. Most probably.
V1: You should have it by tonight?
V2: Most probably.
V1: And that’s the message you’re going to give me? Are you going to let me know either way?
V2: Um, look, once it’s in my hand…
V1: Right.
V2: …you’re going to cop a message by me saying, “It’s Zak. The game is on.”
…
V2: My plan is to last in there for a long period of time. I don’t know how long the stand off will be. Could be up to two, three hours. Four hours. Could be even up to nine hours. There was a scene in America, a youth took a school hostage.
V1: Mm.
V2: He was in there for nine hours.
V1: Mm.
V2: Now, if I can make it to nine hours, that’s sweet.
…
V2: It’s enough time for you, to get you in and um – ‘cause another thing as well, you know, you see, there’s a problem. Like, I can get you in. I haven’t got a problem with that, ‘cause I want you to get in ‘cause…
V1: Yeah.
V2: …it’s an exclusive between me and you now.
V1: Yeah.
V2: The thing is I want a camera there as well.
V1: Mate, I can carry a, a, a handycam or a video camera.
V2: That’s what I need. I don’t want to get Channel Seven and all that involved because it’s just for you.
…
V1: And um, are you going to want to make something like a political statement? Or what’s it going to be?
V2: Mainly what I’ve told you.
…
V1: And, and you want to say on that who you’re…
V2: Yeah.
V1: …particularly targeting?
V2: ASIO, Alexander Downer. Um, Alexander Downer, Dennis Richardson from ASIO.
V1: Yeah.
V2: Um, the Government of Australia.
…
V1: So do you intend to die?
V2: Well I’ve got nothing to live for. I mean, death is the, probably death is the best thing out now. Know what I mean?
V1: Do you intend to kill any ah, hostages?
V2: My first aim is to walk in and take two down automatically.
…
V2: So look, I, I’m the type of person that takes the first step first. Number one, is to get into the building, take them hostage…
…
V2: The police call me, the negotiators.
V1: Yep. Yep.
V2: And the, the squad, the streets close, the (unintelligible) I’m going to call all the media.
V1: Yep.
V2: Get them running things. This is, I want this breaking news. I’m going to take another hostage down. Then they’re going to say, “Could we go up there and have an interview with you?” I’m going to refuse.
V1: Mm.
V2: That’s when I tell police to call you up.
…
V2: When I say the game’s on, in other words, get ready for tomorrow.
V1: Yeah.
V2: See, it has to be in the afternoon, not in the morning.
V1: No.
V2: The morning is the time when I examine and investigate the building.”

64 Shortly after this discussion concluded the accused was arrested and a search warrant was executed. In the course thereof the $3000 paid over by Greg was recovered and a number of other documents were seized or obtained, including a document entitled “Court”, a copy of his will, a plastic toy pistol, a document headed “Jihad”, a videotape entitled “Palestine Interfada and Suicide Bomber”, and a statement referring to the accused’s target being ASIO.

65 The accused declined to be interviewed and also declined to have the services of a lawyer, although he did answer certain questions put to him in the course of the search of his premises which were electronically recorded.

Committal Evidence

66 In addition to the evidence which was led on the voir dire concerning the undercover activities involving Greg, and the issue of the Controlled Operations Certificate, the committal transcript was tendered which included the cross-examination of Greg, Detective Inspector Schagen, and Detective Sergeant Gawel.

67 This evidence does not materially add to the evidence led before me, save to a limited extent. For example “Greg” admitted having said a number of things to the accused, on 28 November that were deliberately false in order to win his confidence, and to make it more likely that he would disclose information to him. He said that, while the possible need for a Controlled Operation Certificate had been discussed with him before 3 December, he had not seen the certificate until that day, and had not previously thought that one was needed;

68 Detective Inspector Schagen gave some additional evidence to the effect that he had never considered that a Certificate was needed; that it was only following the expression of an opinion by members of the Undercover Branch, after the 1 December meeting, that one may be required, that he spoke to Federal Agent Hurst; and that it was as a matter of prudence that he asked for a certificate to be obtained. It was his recollection that Detective Sergeant Gawel had shared his view that no certificate was required, but confirmed that he had not sought legal advice on the issue, and had not specifically read the provisions contained in Part 1AB of the Commonwealth Crimes Act. Detective Sergeant Gawel confirmed that it was in the course of discussions with Detective Inspector Schagen after the second meeting that they considered that the prudent thing to do was to obtain a certificate since Greg may be committing an offence in buying the videotape from the accused. He confirmed that he was aware of the provisions of Part 1AB of the Commonwealth legislation.

The Relevant Legislation

69 The substantive sections of the Criminal Code Act under which the accused was charged are as follows:

101.6 Other acts done in preparation for, or planning, terrorist acts

(1) A person commits an offence if the person does any act in preparation for, or planning, a terrorist act.

Penalty: Imprisonment for life.

(2) A person commits an offence under subsection (1) even if the terrorist act does not occur.

…

147.2 Threatening to cause harm to a Commonwealth public official etc.

Threatening to cause serious harm

(1) A person (the first person ) is guilty of an offence if:

(a) the first person makes to another person (the second person ) a threat to cause serious harm to the second person or to a third person; and
(b) the second person or the third person is a public official; and
(c) the first person:
(i) intends the second person to fear that the threat will be carried out; or
(ii) is reckless as to causing the second person to fear that the threat will be carried out; and
(d) the first person makes the threat because of:
(i) the official’s status as a public official; or
(ii) any conduct engaged in by the official in the official’s capacity as a public official; and
(da) the official is a Commonwealth public official; and
(db) if subparagraph (d)(i) applies—the status mentioned in that subparagraph was status as a Commonwealth public official; and
(dc) if subparagraph (d)(ii) applies—the conduct mentioned in that subparagraph was engaged in by the official in the official’s capacity as a Commonwealth public official.
Penalty:
(e) if the official is a Commonwealth judicial officer or a Commonwealth law enforcement officer—imprisonment for 9 years; or
(f) in any other case—imprisonment for 7 years.

(1A) Absolute liability applies to the paragraphs (1)(da), (db) and (dc) elements of the offence.

…
Threats
(4) For the purposes of this section, a threat may be:
(a) express or implied; or
(b) conditional or unconditional.

Unnecessary to prove that a threatened person actually feared harm
(5) In a prosecution for an offence against this section, it is not necessary to prove that the person threatened actually feared that the threat would be carried out.

70 In order to give content to the provisions of s 101 of the Criminal Code Act it is necessary to refer to the definition of “terrorist act” which is contained in s 100, and as is follows:

(1) In this Part:
…
terrorist act means an action or threat of action where:

(a) the action falls within subsection (2) and does not fall within subsection (3); and
(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and
(c) the action is done or the threat is made with the intention of:
(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
(ii) intimidating the public or a section of the public.
(2) Action falls within this subsection if it:
(a) causes serious harm that is physical harm to a person; or

(b) causes serious damage to property; or

(c) causes a person’s death; or

(d) endangers a person’s life, other than the life of the person taking the action; or
(e) creates a serious risk to the health or safety of the public or a section of the public; or
(f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:
(i) an information system; or
(ii) a telecommunications system; or
(iii) a financial system; or
(iv) a system used for the delivery of essential government services; or
(v) a system used for, or by, an essential public utility; or
(vi) a system used for, or by, a transport system.
(3) Action falls within this subsection if it:

(a) is advocacy, protest, dissent or industrial action; and

(b) is not intended:

(i) to cause serious harm that is physical harm to a person; or
(ii) to cause a person’s death; or
(iii) to endanger the life of a person, other than the person taking the action; or


(iv) to create a serious risk to the health or safety of the public or a section of the public.

71 The provisions of relevance for a consideration of whether or not “Greg” committed an offence, under instructions, include ss 101.4, 101.5, and 103.1 of the Criminal Code Act, in so far as they might have applied once Greg received items that had a potential involvement with a terrorist act (ss 101.4 and 101.5), or might have applied once he paid over the $3000, which the accused mentioned needing, in order to pay off his debts before embarking on a Jihad (s 103.1).

72 In addition there are the provisions of ss 11.2 and 11.4 of the Criminal Code Act (aiding and abetting etc and incitement) upon which the submissions of the accused principally depended.

73 The relevant provisions are as follows:

The Criminal Code Act 1995 (Commonwealth)

101.4 Possessing things connected with terrorist acts

(1) A person commits an offence if:

(a) the person possesses a thing; and
(b) the thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and
(c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b).


Penalty: Imprisonment for 15 years.

(2) A person commits an offence if:
(a) the person possesses a thing; and
(b) the thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and
(c) the person mentioned in paragraph (a) is reckless as to the existence of the connection described in paragraph (b).


Penalty: Imprisonment for 10 years.

(3) A person commits an offence under subsection (1) or (2) even if the terrorist act does not occur.

…

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

…
101.5 Collecting or making documents likely to facilitate terrorist acts
(1) A person commits an offence if:
(a) the person collects or makes a document; and

(b) the document is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and
(c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b).


Penalty: Imprisonment for 15 years.

(2) A person commits an offence if:
(a) the person collects or makes a document; and

(b) the document is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and
(c) the person mentioned in paragraph (a) is reckless as to the existence of the connection described in paragraph (b).

Penalty: Imprisonment for 10 years.

(3) A person commits an offence under subsection (1) or (2) even if the terrorist act does not occur.

…

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

…
103.1 Financing terrorism


(1) A person commits an offence if:

(a) the person provides or collects funds; and

(b) the person is reckless as to whether the funds will be used to facilitate or engage in a terrorist act.

Penalty: Imprisonment for life.

(2) A person commits an offence under subsection (1) even if the terrorist act does not occur.

11.2 Complicity and common purpose
(1) A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.
(2) For the person to be guilty:
(a) the person's conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and
(b) the offence must have been committed by the other person.
(3) For the person to be guilty, the person must have intended that:

(a) his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or
(b) his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.


…

(4) A person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person:
(a) terminated his or her involvement; and

(b) took all reasonable steps to prevent the commission of the offence.


(5) A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the principal offender has not been prosecuted or has not been found guilty.

…

11.4 Incitement

(1) A person who urges the commission of an offence is guilty of the offence of incitement.

(2) For the person to be guilty, the person must intend that the offence incited be committed…

74 In arguing for the exclusion of the intercepted conversations involving Greg, and of the videotape and other items received by him on 3 December, the defence relies on ss 90 and 138 of the Evidence Act. Those provisions are as follows:

“ 90 . In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:
(a) the evidence is adduced by the prosecution, and
(b) having regard to the circumstances in which the admission was made, it would be unfair to a Defendant to use the evidence.

138 (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:
…
(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 be taken 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 recognized 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.
WAS THE EVIDENCE OBTAINED IMPROPERLY OR IN CONTRAVENTION OF AN AUSTRALIAN LAW, OR IN CONSEQUENCE OF AN IMPROPRIETY?

75 The submission needs to be considered in the light of the strong suspicions, which the police had by 27 November, based upon the items found during the 28 September search, the telephone intercepts preceding and following that event, and the media disclosures, that the accused had a plan involving a threat to kill or seriously injure some ASIO employees, and perhaps others.

76 It seems not to have been known, or even suspected by police, before the disclosures made during the 1 December meeting, that the accused intended to have a journalist present who could witness whatever he had in mind, and then release the videotape to the public, via an appropriate media outlet, together with whatever article that journalist might prepare.

77 Mr Boulten accepted, as he obviously must, that it was never intended by police that the accused should proceed with his hostage taking plan, or that he should cause harm, or kill, any ASIO or DFAT official. The undercover operation at all times was designed to ascertain precisely what the plan was and to prevent it being carried into execution.

78 It was the defence submission, however, that what Greg did, from 27 November onwards, amounted to an aiding, abetting, counselling, or procuring the accused to commit the act charged in Count 2, in so far as he made inquiries about the videotape, and engaged in discussions encouraging the accused to sell it to him.

131 There was no infringement of any right of the accused recognised by the International Covenant on Civil and Political Rights.

132 While no proceedings have been taken, or are likely to be taken against Greg, or against his controllers, that is not, in the light of the foregoing, a consideration that would weigh in favour of the exclusion of the evidence in this case. That follows from the inadvertent nature of the illegality, the acquisition of a Controlled Operations Certificate, and the implicit approval or authorisation of any continuation of the deception or misstatement, which had occurred to that point.

133 While it would have almost certainly been possible for a certificate to have been obtained from the outset, the success of a covert operation inevitably depended upon the use of precisely the same kind of deception and misstatements that were employed between 27 November and 1 December, and continued on 3 December.

134 As I have already observed, a simple request to the accused to participate in a police interview, under caution, would inevitably have been met with a refusal (as had occurred on 28 September and as also occurred on 3 December).

135 A search warrant would only have been successful if the videotape was still located at the home of the accused or in his car.

136 Detention for interrogation and directions for production pursuant to ASIO’s powers, even assuming that it’s cooperation (which was not within the power of the Counter Terrorism Command to direct) was secured, could not be guaranteed, with any certainty to have been productive. In any event any information elicited or object produced in response to the exercise of those powers could not have been used in aid of a prosecution of the accused for any offence already committed by reason of s 34G(9) of the ASIO Act.

137 The police were not to know whether others were involved in any plan that the accused had in mind. Premature action, involving any of the three courses suggested would have risked alerting the accused, and any potential accomplice to police interest, and might have driven those involved underground. The fact that the s 34G(9) immunity under the ASIO Act does not extend to derivative use immunity, is therefore of less significance.

138 In summary, it is my assessment that the police acted in good faith, in circumstances where they had legitimate concerns as to a pending terrorist act of considerable magnitude. That threat needed to be appreciated and weighed in the current international climate of increasing and serious terrorist violence. While it may be that the actions of the accused will turn out to have been foolish chatter, or mere bravado designed to air his grievances to journalists, without any intention of his threats being taken seriously, let alone carried into effect, the police were not to know that. Nor am I in a position, or entitled, to determine such an issue, it being a jury question.

139 I am however satisfied that Greg did nothing to encourage the accused to do anything which he was not already minded to do, that he fairly gave him a chance to indicate that he was not seriously intending to go ahead with the ultimate plan, and that throughout he acted reasonably and professionally. I am also satisfied that the operation with which he was involved was not confined to the objective of gathering evidence. It also included the important, if not primary, objective of preventing an incident that could have possibly led to a loss of life or serious physical harm, and that could have occasioned great public concern, if it was seriously in contemplation.

140 For these reasons I am persuaded that the s 138 discretion should be exercised in favour of the admission of the evidence.

141 Although counsel did not expressly refer to ss 135 and 137 of the Evidence Act, I am satisfied that neither required the evidence to be excluded. In this regard the following passages from the judgment of Howie J in R v EM at [120] and [121] are pertinent:

“120. Section 137 is only engaged where the probative value of the evidence is outweighed by its unfairly prejudicial effect. Unfair prejudice under the section arises where there exists the probability that the jury might misuse the evidence in some way other than for the purpose for which it was placed before them R v BD (1997) 94 A Crim R 131 at 139; R v Serratore (1999) 48 NSWLR 101 at [31]; Papakosmas v The Queen (1999) 196 CLR 297 at [91]-[93]. If the evidence is relevant and if there is no likelihood of the jury misusing the evidence in some way, then its probative value, or its lack of probative value, is a matter for the jury.
121. I accept that the section also applies where the jury may give more weight to a particular piece of the evidence than it deserves: R v Yates [2002] NSWCCA 520 at [252]. But that consideration is not based simply upon the assessment of the probative value of the evidence. There must be some prejudice emanating from the evidence that will be likely to cause the jury to over-react to it in an illogical or irrational manner: Papakosmas at [92] or to rely upon it on a basis that was logically unconnected to the issues in the case: R v Taylor [2003] NSWCCA 194 at [93]. In exercising the power contained in the section, the trial judge should have regard to what warnings or directions might be given to the jury to ensure that such prejudice does not arise.”

142 Reference may also be made to R v Lisoff [1999] NSWCCA 364, R v Blick (2000) 111 A Crim R 326 and R v Suteski (2002) 56 NSWLR 182 which are decisions to similar effect.

143 This is not a case where there is any danger of the evidence being misused in any of the ways referred to in these cases.

FALLBACK SUBMISSIONS

144 Two fallback submissions were advanced. The first involved an argument for exclusion of the several passages, which were identified in the transcripts as having involved a questioning of the accused in relation the rifle and “Paperworks”, that had been seized on 28 September. This arose, on the defence case, from the fact that it was known to police that the accused had been earlier charged with firearms offences, and had declined to be interviewed by police.

145 In those circumstances, it was submitted that there was an impropriety in police subsequently engaging in a subterfuge, which allowed them to secretly record conversations with him, that were designed to secure admissions concerning the rifle and “Paperworks” and an unfairness in allowing their tender.

146 There would be merit in this submission if the accused had been facing trial on the firearms offences. To these offences he has already pleaded guilty and no genuine issue could arise in relation to his possession of the rifle and ammunition as at 28 September, or in relation to the fact that the “Paperworks” were found, at his home, on that date. The Crown is in a position to prove their seizure independently of the intercepted conversations.

147 It is true that the police could have interviewed the accused in relation to the documents, and as to the reason why he had the firearm and ammunition, had he not refused to be interviewed, in September 2003. I am not however persuaded that this has the effect that the tender of evidence of the admissions obtained in the intercepted conversations would constitute an unfairness, within the meaning of s 90, such as to justify its exclusion.

148 Clearly the purpose of the covert operation went well beyond gathering evidence in order to charge the accused with a terrorist offence in relation to the period covered by Count 1. There was no deliberate plan to circumvent the accused’s right of silence which the accused had previously exercised. To the extent that it may have done so, and embraced discussion in relation to the “Paperworks” or the accused’s purpose in acquiring a rifle, that was entirely incidental to the main objective, of ascertaining the present intention of the accused, and to nip in the bud any plan which he may have had to occasion harm to others.

149 So considered, all of these passages were also directly relevant to the matters charged in Counts 2 and 3, and it would be a somewhat meaningless exercise to confine their admission to those counts, or to excise them generally, since to do so would be to remove an important part of the context of what was otherwise said and done.

150 The second fall back submission related to the application of s 138. It was contended that, having regard to the difference which arguably exists between the tender of admissions concerning past events (Count 1) and that relating to prospective or current offences (Counts 2 and 3) there may be occasion to reject the former and to allow the latter.

151 For the reasons already addressed the present does not seem to me to be a case where that course should be followed. The admissions are closely interconnected, and those falling within the second category derive their context from those falling within the first.

152 I am unpersuaded of the merit of this submission.

153 It follows that, subject to any additional submission, which may be subsequently addressed in relation to individual passages, I rule the evidence to be admissible notwithstanding the contravention of law or impropriety that was involved in the way in which it was obtained. The motion of the accused is accordingly dismissed.

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