R v Mohamed, Chaarani and Moukhaiber (Ruling 6)
[2019] VSC 169
•18 March 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0068
S CR 2018 0069
S CR 2018 0070
| THE QUEEN | |
| v | |
| AHMED MOHAMED, ABDULLAH CHAARANI & HATIM MOUKHAIBER | Accused |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 26, 27 February, 4, 5, 6, 8, 14, 15 and 18 March 2019 |
DATE OF RULING: | 18 March 2019 |
CASE MAY BE CITED AS: | R v Mohamed, Chaarani & Moukhaiber (Ruling 6) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 169 |
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CRIMINAL LAW – Evidence found on mobile telephones of accused – Whether relevant – Whether probative value outweighed by the danger of unfair prejudice - Evidence generally relevant and probative value not outweighed by the danger of unfair prejudice – Evidence Act 2008, s 55(1), s 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N Robinson QC with Mr A Sim | Commonwealth Director of Public Prosecutions |
| For the Accused Mohamed | Mr J Kelly SC with Mr M Page | Leanne Warren and Associates |
| For the Accused Chaarani | Mr P Tehan QC with Mr L Richter | James Dowsley and Associates |
| For the Accused Moukhaiber | Ms F Gerry QC with Mr J Anderson | Stary Norton Halphen |
HIS HONOUR:
Introduction
In the early hours of the morning on 25 November 2016, two men attended at the Imam Ali Islamic Centre in Fawkner and lit two fires on the floor of the male prayer room before fleeing the scene. The fires did not take hold. A little over two weeks later, on 11 December 2016, three men attended at the mosque and, seemingly with the use of tyres and petrol, set fire to the premises. The men fled the scene, but not before one of them wrote, in two locations in the premises, words which unmistakeably linked the crime to Islamic State, a terrorist organisation. This time, the fire took hold and the premises were extensively damaged, requiring demolition.
The first two accused are before the Court facing charges in relation to both events. The third accused faces only the charge in relation to the completed act. The offences on the indictment are charged as attempting to engage in a terrorist act and engaging in a terrorist act respectively.
A single mobile phone was seized from each of the accused following their apprehension by police on 22 December 2016. The first two accused went into custody at that time and have remained in custody ever since. The third accused remained at large until 19 August 2017. He was arrested on that day and a further phone was seized.
In order to understand the potential significance of the material the subject of this ruling, it is important to know something of the prosecution case. The case is set out in some detail in the Summary of Prosecution Opening (‘the Summary’) filed in this matter. To quote from the Summary:
The prosecution case against the accused in relation to both incidents is that they are terrorist acts rather than arson, due to the extremist views held by the accused against the Shia Muslim community, which the accused perceived as an enemy to the extreme brand of Sunni Islam that the accused followed. Further, the prosecution case is that both the attempt to burn down the mosque on 25 November 2016 and the successful destruction of the mosque on 11 December 2016 were done to intimidate the Shia Muslim community.
According to the extreme ideological views held by each of the accused, Shia Islam is regarded as an enemy of Sunni Islam. Consequently, the accused believed that they had not only the religious authority but also an obligation to undertake violent action against Shia Muslims in Australia.[1]
[1]Summary [10]-[11].
The prosecution case is a multi-faceted circumstantial case, spelt out in detail in the Summary of Prosecution Opening (‘the Summary). Two of the important facets of the case, as set out in the Summary, are as follows:
d) Electronic communications found stored on mobile phones that were either seized or copied by law enforcement authorities. This includes, for example, conversations conducted via communications platforms such as ‘WhatsApp’ and emails sent and received;
…
f) Evidence of photographs stored on mobile phones seized from the accused whether they were downloaded from the internet, received from others, were screenshot by the user, taken using the devices (sic) camera or otherwise.[2]
[2]Summary [16].
I am called upon to decide the admissibility of certain items of evidence sought to be led by the Crown, which were found on the various mobile phones seized from the accused.
Background to the applications
In the lead-up to this trial, the prosecution provided a combined list of electronic exhibits from devices relied on by the Crown which contained all manner of material located on the phones of the accused and their wives and partners. The material was extremely voluminous.
Over the ensuing months, the list has been greatly modified by the Crown, in consultation with the defence. As at this time, the list has been reduced to some 323 pages containing what is still a large number of individual items.
The subject matter of this ruling is a far smaller number of individual items contained on the phones of the accused. In consultation between the three accused, a document entitled Objections to Electronic Schedule by Category[3] was produced. That document lists a number of distinct categories of evidence, and particular images or items within the various categories which counsel for one or more of the accused seeks to have excluded in the trial. Some items were included in multiple categories.
[3]Exhibit O.
The matters under each category have been the subject of argument from each of the parties in turn. In many cases, the submissions of defence counsel were based on the issue of relevance under section 55 of the Evidence Act 2008 (‘the Act’), and in the alternative, under section 137 of the Act. In others, relevance was conceded and the focus was on section 137.
There was a good deal of overlap between the submission of individual counsel as to matters in the various categories, and as between counsel themselves. The submissions were quite detailed and occupied a substantial period of time in Court.
In the end, Mr Robinson, for the Crown, indicated that, in the event of my ruling any items of evidence inadmissible, the Crown would not require me to state my reasons in detail. On the defence side, Mr Kelly SC for Mohamed indicated that he would be content with short reasons being pronounced for my decisions. Mr Tehan QC for Chaarani and Ms Gerry QC for Moukhaiber gave the same indication, except insofar as the category entitled ‘Cache/thumbnails’ was concerned. In respect of my ruling on that category of material, more detailed reasons were sought.
In the interests of keeping this trial moving, I have taken those indications of counsel into account in preparing these reasons, and, otherwise than in connection with the ‘Cache/thumbnails’ category, I will not set out the individual submissions of counsel or the detailed analysis leading to my decision in the sort of detail that might otherwise have been desirable.
I will shortly turn to the task of setting out the different categories of evidence contained within the objections schedule. I will briefly describe the type of material contained within each category, and very briefly describe the nature of the submissions made on both sides. I will deal first, however, with the ‘Cache/thumbnails’ category.
The law
Section 55(1) of the Act provides:
(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) the failure to adduce evidence.
Section 137 of the Act provides:
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
Cache/thumbnails
This category was one which encompassed images and other types of evidence of a number of different types. The category expanded somewhat as the matter proceeded, largely because of evidence given by Calvin Wills, to which I will turn shortly. Submissions were made by Mr Richter for Chaarani and Ms Gerry for Moukhaiber in pursuit of the exclusion of the relevant evidence against their respective clients.
In the end, however, the position changed insofar as the accused Moukhaiber was concerned. This followed the provision by the Crown of an additional statement from Calvin Wills dated 13 March 2019. After being given the opportunity to consider the implications of the new material for the defence position, Ms Gerry informed the court that there was no longer a challenge to the admissibility of the evidence in the Cache/thumbnail category. She also withdrew objections she had previously made in respect of a number of the categories of evidence in Exhibit O.
The new statement of Mr Wills did not have a bearing on the position of the accused Chaarani insofar as the ‘Cache/thumbnails’ category was concerned.
In the circumstances, I will not set out the submissions made by Ms Gerry on this topic. Nor will I summarise the evidence of Mr Wills insofar as it related only to thumbnails and the other sub-categories addressed by Ms Gerry.
Calvin Wills evidence
Calvin Wills is a Senior Digital Forensic Examiner for the Australian Federal Police. He gave evidence in the pre-trial proceedings on three occasions, first, on 25 February, and then more recently, on 5 and 6 March 2019, when the focus of the evidence was on the matters the subject of the ‘Cache/thumbnails’ category.
Mr Wills was not asked in any detail to set out or justify his expertise or experience in the subject matter on which he gave evidence. However, it was implicit in the questioning from all counsel that his expertise was accepted. I will treat his evidence accordingly.
During the course of his evidence, Mr Wills explained some aspects of the content of the List of Electronic Exhibits. The document contains reference to individual items found on the phones of the respective accused with data indicating what is known of the content, how it arose, and the available meta data in respect of the various items.
In respect of some of the items, there are indications in the available data that the items were contained in a cache file on the phone. Mr Wills explained the purpose of the cache file, which is essentially to act as a temporary storage area for data so that material can be pre-loaded onto the phone to make it appear faster for the user. So, for example, a visit to a website may lead to content from the website being sent to the phone and stored within the cache, so that if the user seeks to proceed further into the website, the material would load more quickly. The material would sit within the cache until either the cache is flushed or the person chooses to delete and erase the material.
Mr Wills indicated that the mere fact a file was found by investigators in the cache did not mean that it had ever been displayed on the screen of the phone or observed by the user.
As well as the phone’s own cache, messaging applications such as WhatsApp contain their own form of cache.
Chaarani submissions
Mr Richter submitted that the fact that a particular file is a cache file was ‘a species of fact about that piece of evidence that goes to its probative value’.[4] He submitted that the fundamentally important fact about any cache file was that it was not possible to determine with any one of them whether or not the user of the phone ever read or saw the image, or indeed, whether it even appeared at any time on the screen of the phone. He stated the height of the probative value of the evidence of the images in terms of any input by the user was that in most cases, the images were contained on websites or similar which had been accessed by an application on the phone. Indeed, although Mr Richter did not rely too heavily on this matter, there was the potential for images to be loaded into the cache without the page containing the image ever having been clicked on.
[4]Transcript 1644.
Mr Richter put forward two ways in which relevance ‘could conceivably be advanced’.[5] The first, he submitted, was to look at the contents of the images, analyse them, and then attribute them in some way to the accused Chaarani. In respect of this way, Mr Richter submitted it could not be done. There was no evidence that the accused ever saw or read any of the images in question. Therefore, there was no safe, logical basis for the drawing of an inference in respect of the images. As he put it, ‘that is really where the matter ought to end.’[6]
[5]Transcript 1646.
[6]Ibid.
The second way posited by Mr Richter for admissibility of the images to be justified was a way in which he anticipated the prosecution may seek to justify admissibility. This would involve taking the items as a broad category, and then submitting that from the number of images on the phone in the cache, an inference could be drawn that the accused must have been looking at the sort of websites which would contain such images.
Mr Richter described this argument as a valid one. To quote his initial submission on the matter: ‘It’s a true argument in the sense that that would enable these images to pass the threshold test of s. 55…’[7]
[7]Ibid.
In later submissions, Mr Richter backed away somewhat from his initial concession as to relevance set out above, resting, in the end, with the description of the probative value of the evidence, viewed in that way, as being ‘very low or approaching zero probative value’.[8]
[8]Transcript 1663.
Whilst seemingly conceding the threshold of section 55 may be passed by the evidence when viewed in this second way, Mr Richter submitted that it would not survive the test in section 137 of the Act. The problem, as he put it, was that the jury would be invited to consider that because of the number of images, and what the images said about the websites the accused may have visited, he must, therefore, have seen some of the images. However, as he put it, the problem was there was no way of knowing which ones. Therefore, the jury would be invited to look at all of the images, then conclude he had seem some of them. There would be an inbuilt invitation to misuse the evidence, because the impression on the minds of the jurors would be a cumulative one, in circumstances where there would be no way of knowing which, if any, of the images, had in fact been viewed. As he put it, this would be a situation ‘logically incapable of being the subject of a direction that a human jury could follow’.[9]
[9]Transcript 1648.
Mr Richter went on to submit:
A human juror can’t say – it’s unreasonable to expect, and I don’t know if it’s even neuroscientifically possible for a juror to hold in their head the whole of the effect of the images but only give some unnominated smaller proportion of its actual effect in their reasoning process. It means that the effect on the jury will be necessarily different from the effect on Mr Chaarani.[10]
[10]Ibid.
Mr Richter submitted that there was another aspect of danger of unfair prejudice which was that the jury might use the cached images in the first sense he set out in his submissions, that is, that they would attribute knowledge of the images to the accused, and impute agreement by him with the content of the images.
Mr Richter submitted that neither of these risks of unfair prejudice would be amenable to effective judicial directions. He later conceded the first risk would possibly be amenable to effective directions, but maintained that the second would not.
Mr Richter submitted that there are no cases on point in respect of the use of cached images as mere items of circumstantial evidence. There were some authorities on the use of such images, but these concerned cases in which proof of the possession of the images was required, such as in child pornography cases. Knowing possession, he submitted, had never been attributed or sheeted home to an accused on the basis of cached images. Mr Richter acknowledged the difference with the proposed use of the images here, however.
He submitted that if knowledge could not be attributed to the accused, then nothing could logically be inferred from the presence of the images in cache.
Insofar as the images were being advanced as items of circumstantial evidence in a much broader case:
that doesn’t stop it from being a distinct species of evidence within this case, where in order to be considered as part of the circumstantial case, there has to be a rational inference available to draw up into the net of circumstantial evidence that the jury will use. It can’t just sit there if it’s incapable of being used that way…[11]
[11]Transcript 1655.
In respect of the strands-in-a-cable analogy of circumstantial evidence, Mr Richter submitted that the cache evidence was a strand which was not continuous, and was therefore of no value. There was a logical disconnection between the evidence and what could be made of it.
Prosecution submissions
Mr Robinson commenced his submissions by emphasising the words of section 55 of the Act where relevance is defined.
Dealing with the cached evidence, Mr Robinson made the point that the evidence of Mr Wills showed that the reason why material was in the cache was to permit it to be better displayed on the phone if required. That was the purpose of the cache.
He submitted that the absence of evidence that such images had definitely been displayed on the phone did not amount to proof that they were not displayed.
He submitted that the jury would be entitled to look at this evidence, if it was permitted to be led, in combination with all of the other evidence in the circumstantial case.
The jury could have regard to the fact that the phone in question was used by a particular accused who was involved in chat groups and made searches. A jury may conclude that the accused was an active participant in chats over WhatsApp and the like. Where material in the cache was reflective of conversations of the chat group and other material on the phone, from the overall circumstances, a jury might infer that the accused in question did read the messages and see the images forming part of a chat group with which he was involved. The jury could infer that images and the like in the cache were, in fact, seen.
That, however, was not a prerequisite to relevance.
The images in the cache in this case had been received so as to be displayed if required, and were available to be looked at by the accused should he want to. Mr Robinson distinguished between the challenged evidence in this case, and the evidence in cases where there was a requirement of proof of knowledge or possession.
It would be open to the jury, in the circumstances, to consider that the accused had read or viewed some or all of the messages and images in question. This was so in circumstances where satisfaction beyond reasonable doubt, or to any particular standard, was not required on the matter. Indeed, in respect of items in the cache, the circumstances would make it more probable than not that the accused had seen them.
There was no requirement for dominion or control over the material to be able to be established. It was sufficient that the material was on the phone of the accused - indicative of his having sought out such material - and available to be viewed should he so desire.
In respect of section 55 of the Act, Mr Robinson submitted that there was no warrant for reading into the section, as the defence sought to have done, a requirement of proof the accused had knowledge, control or possession of the items. He submitted that section 55 had lowered the threshold of relevance from the common law position. There was no requirement under the provision of a ‘factual, logical, temporal or geographical propinquity between the piece of evidence and the accused’.[12] It was sufficient that material of the nature of this material, which might have come onto his phone from various sources, was present on the phone and available to be seen. That could be capable of rationally affecting the assessment of the probability of the existence of a fact in issue, namely, whether or not the accused was a follower of or adherent to the ideology of Islamic State.
[12]Transcript 1777.
Mr Robinson submitted that the impugned evidence was relevant under both arguments advanced by Mr Richter. As for the second argument, the jury could, in respect of Chaarani, conclude from the volume of material and its nature, that the accused had an interest in such material, and that was why it was on his phone.
It would suffice, to justify relevance, that the material in question was present on the phone of the accused, and it was possible in the circumstances that he had seen it. Furthermore, in considering that issue, I would be entitled to take into account the fact that the nature of the challenged evidence was consistent with other unchallenged evidence on the phone or in the evidence more generally.
Mr Robinson took me to the High Court decision in The Queen v Hillier,[13] and in particular, to a passage at pages 637 to 638 of the judgment about the way in which circumstantial evidence is to be approached. He submitted that there were two things to be always borne in mind. First, that items of evidence are not to be looked at in isolation. And secondly, that what is necessary to be inferred by a jury from the evidence is the existence of the elements of the crime in question. There is no requirement for the jury to make any findings of fact along the way. From the combination of the entirety of the evidence, the jury must be satisfied as to the elements beyond reasonable doubt.
[13](2007) 228 CLR 618.
Summarising his submissions on the cached evidence, Mr Robinson submitted that the evidence in the cache is relevant because, in conjunction with all the other material on the topic, it advances or strengthens the contention that the accused did, indeed, have an interest in Islamic State and was an adherent to its ideology.
In response to a question from me, counsel submitted that a jury would be entitled to reject as being unrealistic, the prospect of the accused Chaarani having had all of the cached material on his phone without having had any knowledge of the material, or input into its presence there. The jury would be entitled to bring to bear their knowledge and experience of the world in rejecting the proposition that the explanation for the presence on his phone of vast quantities of IS related material was ‘some sort of accidental force unbeknownst to him’.[14]
[14]Transcript 1797.
Turning to the section 137 submissions made by Mr Richter, Mr Robinson submitted there was no danger of unfair prejudice. This material was only to be viewed as a part of the circumstantial case which may be confirmatory, to the minds of jurors, of the accused holding the beliefs in question. That would constitute proper reasoning on the material. There would be nothing unfair in the jury being aware of the contents of the accused’s phone when considering the issue of what his state of mind was.
Mr Richter in reply
In reply, Mr Richter submitted that it is clear that a jury will accept the finding of the cached images on Chaarani’s phone. He submitted, however that the question was then, what inference is to be drawn from the evidence, which he submitted, was the problem. As he put it, the evidence ‘has to be rationally capable of bearing the inference that is sought’.[15] The evidence in question was not so capable.
[15]Transcript 1824.
Mr Richter submitted:
There is a substantial and important and significant difference between material that is on the phone available to be viewed and material that was put on the phone by Mr Chaarani.[16]
[16]Transcript 1826.
He finished by submitting that the absence of evidence of access, knowledge or possession in respect of the images in question ‘eviscerates the probative value’ of the evidence, to such an extent that it would be outweighed by the danger of unfair prejudice.
Analysis
The starting point of my analysis is a consideration of the definition of relevance as set out in section 55(1) of the Act. It is worth repeating here:
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.
The definition in section 55 is very wide.[17] The Australian Law Reform Commission (‘ALRC’) explained the rationale of the proposal on which the provision is based as follows:
The definition requires a minimal logical connection between the evidence and the ‘fact in issue’. In terms of probability, relevant evidence need not render a ‘fact in issue’ probable, or ‘sufficiently probable’ – it is enough if it only makes the fact in issue more probable or less probable than it would be without the evidence – ie it ‘affects the probability’. The definition requires the judge to ask ‘could’ the evidence, if accepted, affect the probabilities. Thus, when a judge is in doubt whether a logical connection exists between a fact asserted by the evidence and a ‘fact in issue’, he should hold that the evidence is relevant if satisfied that a reasonable jury could properly find such a logical connection. An indirect connection with a matter in issue is sufficient…[18]
[17]R v Le [2000] NSWCCA 49 [19] (Sully J).
[18]Australian Law Reform Commission, Evidence (Interim Report No 26, 1985) Vol 1, [641].
Mr Robinson submitted that the test of relevance in section 55 lowered the common law requirement for relevance. I am not sure that that is correct. As the High Court indicated in footnote 4 in the decision of Washer v The State of Western Australia (‘Washer’),[19] the definition contained in the provision ‘reflects the common law’.[20] Having said that, it is, on any view, a broad definition, which has been given a broad interpretation by the courts. As has been recognised, the use of the word ‘could’ rather than ‘would’, and the recognition of indirect connection with a fact in issue, should be noted.
[19][2007] HCA 48 (‘Washer’).
[20]The report of the decision in the Commonwealth Law Reports does not have the same footnotes. The decision as reported in the High Court version and in the Australian Law Journal Reports is as I have stated.
In respect of the need for a rational connection, it was stated in Harrington-Smith v Western Australia (No 2)[21]:
Nevertheless, there must be a rational connection between the evidence and the facts in issue. Whether such a rational, or logical, connection exists is ‘an objective test grounded in human experience, on the application of which minds may differ’.[22]
[21](2003) 130 FCR 424 [11] (Lindgren J).
[22]Harrington-Smith v Western Australia (No 2) (2003) 130 FCR 424 [11] (Lindgren J).
As was said by the High Court in Washer, the determination of relevance:
requires consideration of the process of reasoning by which [the] information …could rationally affect the assessment of the probabilities. The word ‘rationally’ is significant in this context. In order to establish relevance, it is necessary to point to a process of reasoning by which the information in question could affect the jury’s assessment of the probability of the existence of a fact in issue in the trial.[23]
[23]Washer (No 19) [5].
Of course, the relevance of evidence does not depend on its capacity by itself to prove anything. The assessment of the probabilities must be made in the context of all of the other evidence which will be available in the proceeding.
In The Queen v Hillier,[24] it was held by the High Court that the Court of Appeal of the Australian Capital Territory had erred in their approach to Hillier’s appeal against conviction by considering the significance of circumstantial evidence consistent with his innocence in isolation from other evidence. As was stated by Justices Gummow, Hayne and Crennan:
The case against Mr Hillier was a circumstantial case. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence…
Often enough in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of an accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal.[25]
[24](2007) 228 CLR 618.
[25]Ibid 637-8 (citations omitted).
In Bayley v The Queen,[26] the Court of Appeal had this to say on the matter:
[26][2016] VSCA 160.
In determining whether evidence might rationally affect the assessment of the probability of the existence of a fact in issue – directly or indirectly – it is wrong to focus upon whether a piece of evidence, considered in isolation, may prove anything. One must also look to the other evidence in the case.
As Heydon J observed in Evans v The Queen:
The relevance of evidence does not depend on its capacity by itself to prove the prosecution case on a particular issue, or to raise a reasonable doubt in favour of the defence on that issue. The effect on assessing probability which is to be looked for is the effect of the contested evidence taken with other evidence either admitted by the time the controversial evidence is tendered, or to be called.
Viewed in isolation, the evidence of the car shown in the CCTV footage may not have been particularly powerful. However, when taken with the other evidence, it was capable of bearing on the identified fact. Hence, counsel’s concession as to relevance was properly made.[27]
[27]Ibid [130]-[132].
Mr Richter acknowledged the central reality of the process of assessing the relevance of circumstantial evidence as indicated in passages such as those set out above. At times, however, with all due respect to him, his submissions in support of the exclusion of evidence in connection with the ‘Cache/thumbnails’ topic seemed to lose sight of that central reality.
Dealing with the cached images which Chaarani sought to have excluded, the fact that it would not be possible for a jury to find, in respect of any particular image, that the accused had ever viewed the image, is not determinative of the question of relevance. This was not a case in which the Crown would be seeking to prove, or would be required to prove, that the accused had knowledge of or possession of the images. All that the Crown seeks to achieve out of the cached images on Chaarani’s phone is to advance the contention that the accused was a follower of IS, or an adherent to its extreme ideology. The Crown relies on the cached images in the context of all of the other evidence against the accused in the case. That evidence includes all manner of other material, derived from the phone and otherwise, pointing to the likely correctness of the contention just mentioned.
The law makes it entirely clear that there is no requirement for any piece of evidence or the correctness of the conclusion which might be drawn from it, to be proved beyond reasonable doubt, or to any standard. I believe the submissions of Mr Richter lost sight of that central proposition. An illustration of that is to be found in Mr Richter’s early submission that because there was no evidence that the accused ever saw or read any of the images in question, therefore, there was no safe, logical basis for the drawing of an inference in respect of the images, and that that was ‘where the matter ought to end’.
That submission presupposed that to be admissible, the cached evidence needed to be sufficient to found an inference. That is simply not the case. What is required to justify relevance is much less than that. The evidence is only required to be such that, upon its acceptance by a jury, it ‘could’, not ‘would’, rationally affect, directly or indirectly, the jury’s assessment of the fact in issue whether the accused had the leanings and beliefs asserted by the prosecution. Could the evidence affect the probabilities in a rational way?
Of course that matter can only fall to be considered in the context of the overall case. The cached images, alone, are not required to do any work, other than to advance the contention, along with all the other evidence touching on the matter, that the accused had an interest in IS and its ideology.
It must be remembered, of course, that the cached images the subject of challenge were found on the phone of the accused, as well as a great deal of other non-cached material. Quite aside from the phone material, there is much other evidence relied on in the prosecution case against Chaarani. Overall, the material not subject to consideration under this topic, both that found on the phone and that having nothing to do with the phone, would be supportive of the prosecution contention that Chaarani was a follower of IS and an adherent to its extremist ideology. The cached material is of a similar nature, and entirely consistent with the overall body of evidence in the Crown case.
On a purely technical basis, it is possible that all of the cached material found its way onto the phone of the accused without him being involved and without him having any knowledge of the material. Whether that would be a realistic prospect, however, is another matter, and one which a jury may care to ponder.
Even on the sort of accidental mechanism posited by the defence, the reality is that the whole purpose of the cache is to store images and material on the phone in advance of the point when it may actually be required, in order to improve the experience of the user in moving through the material if he seeks to go down that path. The material in the cache may be indicative, to the mind of the jury, of the fact that the accused had sought out, or at least, been open to the receipt of, such material.
The overall material may satisfy a jury that the accused was an active participant in chats over WhatsApp, Twitter and the like. Some aspects of the chats aside from the challenged material would be indicative of some of the members of the WhatsApp group, the accused included, having a particular interest in the topic of IS and its ideology.
In light of the apparent interest by the accused in IS and related matters, a jury may consider that the presence of numerous IS-related images in the cache of his phone is entirely understandable, and something that bespeaks much more an interest by him in such matters and a desire to collect and view material than some sort of quirk of fate brought about by the mysterious workings of his phone and the applications upon it.
Mr Robinson submitted that the circumstances of the case would make it more probable than not that the accused had seen some or all of them. That, in my view, was an entirely reasonable submission. It must be repeated, however, that the relevance of the cached material does not hinge on that proposition.
The cached files are relevant
All-in-all, I am satisfied that the cached files are relevant evidence in the trial. The presence of the files in the cache raises the real prospect that the accused had viewed the material, and had taken some step to place it onto the phone. At the very least, this was significant material on the phone which the accused had the opportunity to view. It was material which fitted in well with other material indicating his leanings, consistent with the possibility of his having sought it out. It was capable, in a legitimate way, in conjunction with all of the other evidence in the case, of ‘affecting the probabilities’ on the fact in issue whether he had the alleged supportive feelings for IS and its ideology.
The cached files should not be excluded under section 137 of the Act
Having determined that the evidence is relevant, I am required to turn my mind to section 137 of the Act. That provision would require me, as a matter of law, to refuse to admit the evidence if its probative value is outweighed by the danger of unfair prejudice. The onus or burden under the section is on the accused.
As the ALRC explained it prior to this provision coming into effect, ‘prejudice’, as the term had been used in the common law:
does not mean simply damage to the accused’s case. It means damage to the accused’s case in some unacceptable way, by provoking some irrational, emotional response, or giving evidence more weight than it should have. It is proposed to retain this judicial discretion in its conventional form.[28]
[28]Australian Law Reform Commission, Evidence (Interim Report No 26, 1985) Vol 1, [957].
I am required to carry out the balancing exercise referred to in the provision. If the probative value of the evidence is outweighed by the danger of unfair prejudice, I am required as a matter of law to exclude the evidence. This is not the exercise of a discretion.
I set out in my summary of his submissions the danger of unfair prejudice relied upon by counsel for the accused.
To my mind, the two asserted dangers of unfair prejudice relied upon by Mr Richter do not sit comfortably with the reality of the way in which the prosecution would seek to use the cached evidence, should it be admitted. As indicated already, the material would only ever be relied upon as advancing the contention, in conjunction with all of the other evidence, that the accused was a follower of IS and an adherent to the ideology of that organisation. The cached images could only ever be seen as a small part of the overall picture. The prosecution would not seek to have the jury reach any conclusion at all on that material alone, but rather, would seek to have that material viewed, in the context of the much broader picture, as being consistent with that picture being the true one.
The first concern expressed by Mr Richter was that in permitting the jury to have any regard to the cached material, there would be an ‘inbuilt invitation’ to misuse the evidence. This was because the impression on the minds of the jury would be a cumulative one, yet the jury would be expected or required to give an unnominated smaller number of the images actual effect in their reasoning process. In my view, that submission contemplates a jury acting in a manner quite contrary to the way in which the Crown would ask that the material be used, and in a way contrary to common sense. The submission attached to this cached material a potential status in the eyes of the jury which it would never sensibly bear. I do not believe there is a danger a jury would misuse the evidence. It would be very clear to them that the evidence is a small part of the overall case, and a part which they may consider to be supportive of other material showing the holding by the accused of the asserted beliefs and state of mind.
The second danger pointed to by counsel was that the jury might attribute knowledge of the images to the accused, and then impute agreement by him with the contents of the images. Again, this submission presupposes that a jury might reason in a way which is contrary to the way in which the evidence would be sought to be relied upon by the Crown. There would be no risk that a jury would, acting on the images alone, make a decision as to the state of mind or beliefs of the accused. It would be very obvious to the jury that the cached images are only a small part of the overall picture, and would need to be considered in that way, if at all.
In my view, there is no danger of unfair prejudice associated with the cached images. It follows that I would not exclude the material under section 137.
Conclusion on cached images
For the reasons stated above, I consider the material to be relevant, and I see no reason to excluded the evidence under section 137 of the Act.
Generic military images
Mr Kelly for Mohamed sought the exclusion of a number of images of a military nature where, it was asserted, there was nothing to demonstrate any reference to IS. Mr Kelly submitted that the images were not relevant. In the alternative, he argued that because the slight probative value of the material was outweighed by the danger of unfair prejudice, it should be excluded under section 137 of the Act. One danger of unfair prejudice was that the jury might speculate about what was actually depicted in the images and what was meant by them. Another was that the images would raise the risk of the jury engaging in tendency reasoning.
Mr Richter, for Chaarani, adopted the submissions of Mr Kelly. He also advanced the submission, rendered ineffective by my ruling on the cached images, that it was impossible to say in respect of cached images in this category that the accused had viewed them, thereby reducing their probative value. Mr Richter principally, however, relied on section 137. The quantity of the militaristic imagery, he submitted, might have the capacity to suggest to a jury that the accused is unusually interested in military and violent material. Hence, he submitted, there was a danger of unfair prejudice which outweighed the slight probative value.
Ms Gerry made submissions at the time seeking exclusion of a number of items in this category. It was indicated to me by Ms Gerry on 15 March 2019 that she no longer seeks exclusion of these items. Because there was one aspect of Ms Gerry’s submission which was relied upon by Mr Kelly, I will briefly mention it. Ms Gerry submitted that there was a risk that the jury would use the challenged material in this category as tendency evidence. Her expressed concern was that the jury might reason that because the accused was interested in military scenes featuring people of Middle Eastern appearance, he might therefore have a tendency to be interested in IS and to act in furtherance of that terrorist cause.
Mr Robinson submitted that it would be open to the jury to view the challenged images in the context of the other images and material on the phones of the respective accused, much of which was clearly associated with IS. Although the challenged images may not, in every case, be so clearly connected with IS, there was a militaristic theme to the material and in many cases, the combatants were engaged in areas consistent with the activities of IS in the Middle East. The overall picture would be indicative of the owners of the phones being people who adhered to the ideology of IS. The Crown pointed to the volume of the material as being relevant to the strength of the adherence of the accused to the ideology of IS.
Decision on generic military images
In my view, the images in this category are relevant as being consistent with the more clear-cut IS related material in the phones, and going towards demonstrating, in combination with the other material, the fact of the adherence by the accused to the IS ideology, and the strength of that interest and adherence. I do not believe there is any real danger of unfair prejudice, and certainly not to such an extent as would outweigh the probative value of the material. The jury would well understand that the significance of the images is simply as a part of the overall material potentially pointing to the state of mind and beliefs of the accused. As for the tendency argument, the material would not be relied upon as tendency evidence, and there is no reason, in my view, to suppose a jury would engage, uninvited, in such reasoning.
General Islam
Images and items in this category were argued by Ms Gerry. She did not persist in this argument. No ruling was therefore required.
Historical events and/or historical figures
Images and items in this category were argued by Ms Gerry. She did not persist in this argument. No ruling was therefore required.
Images that are predominantly in Arabic where there is no translation
Images and items in this category were argued by counsel for all accused. In the end, no ruling was required.
Untranslated Nasheeds/lectures in Arabic
Items in this category were the subject of discussion. In the end, agreement was reached between the parties as to the manner in which the material will be placed before the jury. No ruling was required.
Images which relate to Islamic State but express general hatred or prejudice towards non-Shia
In this category, Ms Gerry submitted that there were three images and two tweets which should be excluded. In respect of the images, two expressed anti-Jewish or anti-Christian sentiment and one expressed antipathy to man-made laws. The tweets referred to an allegation of a young Iraqi girl having been raped by US soldiers in Abu Ghraib prison, and could be considered to be anti-US in sentiment. In the case of the images, Ms Gerry argued that although relevant, the images should be excluded under section 137 of the Act as the danger of unfair prejudice outweighed the probative value of the evidence. In respect of the tweets, Ms Gerry submitted that these were not relevant because there would be no evidence the tweets had been read or seen by the accused. She also pointed to the danger of unfair prejudice in respect of the tweets. In respect of all five items, the danger of unfair prejudice relied on was that the jury may reason that because the accused might be shown by the material to be anti-Jew, anti-Christian, anti-common law, or anti-American, he may therefore be anti-Shia.
In response to these submissions, Mr Robinson submitted that those positions of being anti-Jewish, anti-Christian, anti-law, and anti-American, were known aspects of the IS ideology. The material was relevant as part of the overall evidence. As for the danger or unfair prejudice, there was none. There could be no danger of unfair prejudice lurking in evidence which did no more than raise the prospect that the accused held those views consistent with the IS philosophy.
Decision on general hatred category
In my view, the images and tweets in this category are relevant, and there is no danger of unfair prejudice attaching to them. I reach those conclusions essentially for the reasons advanced by the prosecution in submissions on the category.
Magazine documents
This category concerned a number of editions of Dabiq Magazine and one of Rumiyah Magazine which were found on the phone of the accused Chaarani. The Crown had already made a decision to excise many parts of the magazines which were considered too confronting to be placed before a jury. Still in dispute, however, were numerous remaining images and articles which Mr Tehan sought to have excluded. In most cases, defence counsel conceded relevance, but sought exclusion under section 137 of the Act.
The disputed items included the following material:
·Images of deceased soldiers ;
·Images of people in the process of being shot;
·Images and articles related to the stoning of women for adultery;
·A particularly graphic image of an American named James Foley about to be decapitated;
·An image of a Japanese prisoner about to be decapitated;
·Multiple images of child soldiers;
·An article about the Australian person Man Monis who was involved in a siege in Sydney;
·An article about the burning of a Jordanian pilot, from which article the Crown agreed to excise some very graphic photographs;
·An image of a supposed sexual deviant about to be thrown from a building;
·An image of hanging bodies;
·An article containing strong homophobic sentiments;
·An article about a named Australian jihadi, Abu Mansur al-Muhajir.
Whilst, as I indicated, relevance was conceded in most cases, Mr Tehan made the point, in respect of many of the items, that they had little or nothing to do with the sort of crime alleged against the accused, so the probative value was very limited. On the other hand, in all cases, there was substantial prejudice which would flow to the accused from the admission of the items, such that the danger of unfair prejudice would outweigh such probative value as there was. Generally, the prejudice was said to flow from the graphic and horrific nature of the material. It was submitted that the prosecution had enough in the unchallenged evidence in the magazines to make the point it sought to make. The additional material was simply unnecessary.
I do not propose to set out the submissions made in respect of the various items, but will touch on some of the submissions by way of example.
In respect of the imagery and article concerning the stoning of women for adultery, Mr Tehan submitted that this material, as well as being of questionable relevance, would be likely to provoke strong disapproval and disgust amongst jurors, disproportionate to any probative value it may have. It may excite absolute revulsion in the minds of right-thinking jurors. Mr Sim, on the other hand, justified the stoning material on the basis that it was contained in Dabiq Magazine, one of the primary means of IS communicating with its supporters around the globe. As repugnant as much of the content, including the stoning material, may be to jurors, it was a true reflection of the ideology of the organisation. It was therefore relevant. The images did not show the victims actually being stoned. In the circumstances, what was shown would not be so confronting to jurors as to be likely to excite unnecessary prejudice in their minds.
In respect of the image showing James Foley in the moments before he was beheaded, Mr Tehan submitted that it was such a confronting image that it was likely to inflame great hatred and prejudice towards the accused. This risk was not ameliorated by the fact that the image did not show the actual murder. In addition, Mr Tehan submitted that the image may lead jurors to engage in tendency reasoning, along the lines that any person who had possession of such material might be the sort of person who would engage in the very behaviour depicted in the image. Mr Sim, on the other hand, submitted that although the image was very graphic, it did not depict the actual beheading. There was no prospect that jurors would be unable to dispassionately consider the evidence in the way the Crown sought to rely on it as going to the ideology of IS and the question of whether the accused was an adherent to that ideology.
Next, I will make mention of the imagery and articles of a homophobic nature, including an image which purports to be of a ‘sexual deviant’ about to be thrown from a building. Mr Tehan challenged the relevance of this material. He further submitted that that type of material was ‘so beyond disgraceful, really, and so viciously horrible’[29] as to be likely to excite prejudice in the minds of jurors against the accused. Mr Sim, on the other hand, submitted that the event of throwing the man from the building spoke to the horrors, and the barbaric nature, of the type of treatment meted out by IS to those who did not adhere to their views. It was part of the central core of what the organisation was about. There was no reason to suppose that jurors would be unduly prejudiced as a result of the material.
[29]Transcript 1467.
Finally, I will make mention of the Man Monis article. Mr Tehan submitted the article would provoke enormous antipathy towards the accused. The article concerned an instance of a specific, notorious act involving the killing of people in Australia which would inevitably lead to prejudice against the accused, because he had the article on his phone. Also, there was the risk jurors would be drawn into reasoning that because the accused was a supporter of IS, he may be supportive of what Monis did in Sydney. Mr Sim refered to parts of the article about Monis which encouraged followers of IS to carry out crimes in their home countries. He submitted the evidence was relevant, and that the danger of prejudice attaching to it would not outweigh its probative value.
Decision on magazine documents category
With one exception, I consider that all of the challenged material is relevant, and that its probative value is not outweighed by the danger of unfair prejudice. I have reached those conclusions essentially for the reasons advanced by Mr Sim. In some cases, there may well be the need for directions of law to be given to the jury in connection with the material to ensure they fully understand the need to avoid sympathy or prejudice intruding into their thinking. This will be a matter for discussion later in the trial.
The exception is the article about Man Monis. That article, which is undeniably relevant, may well, for the reasons advanced by Mr Tehan, provoke antipathy towards the accused in the minds of some jurors. It might be considered contemptable that an Australian citizen would support the actions of Monis, which, in a high profile and notorious event, led to the death of innocent citizens of this country. I consider that the danger of unfair prejudice outweighs the legitimate probative value of the article. It is therefore excluded.
Too graphic
Counsel for all of the accused sought the exclusion of a number of items under this category. In most, but not all cases, relevance was conceded, but counsel put submissions which asserted that the images and items were so graphic and appalling as to raise the real prospect of jurors being affected by prejudice, to such an extent that I should conclude the limited probative value of the evidence was outweighed by the danger of unfair prejudice. The prosecution agreed not to lead some of the items, but submitted that all of the remaining ones were relevant. On the issue of prejudice, the Crown acknowledged the very confronting nature of some of the material, but submitted that there was no reason to suppose that a properly instructed jury would be unable to view the material dispassionately and use it appropriately.
Decision on too graphic category
I consider that all of the remaining challenged items are relevant. I also consider that the probative value of the material is not outweighed by the danger of unfair prejudice. I reach these conclusions for the reasons advanced in argument by the prosecution. A prospective jury should be credited with the intelligence and integrity to be able to use the challenged evidence in accordance with the directions they will be given as to its proper use, should they care to view it in that way. There is no reason to suppose they would be moved by prejudice engendered by the material to use the admittedly graphic and confronting material in an inappropriate fashion.
Too confrontational
Mr Tehan sought the exclusion of a number of items under this category on the basis of lack of relevance and alternatively under section 137 of the Act. Consistent with my conclusions under the previous category, I rule that all the material is relevant, and that none of it should be excluded because the probative value is outweighed by the danger of unfair prejudice.
Unrelated violence
No ruling was required in this category.
Animal slaughter
In this category, copies of a video were found on the phone of Mohamed. In the video, Mohamed and an unidentified man could be seen to carry out the slaughter of two sheep on some grass using knives, with which the throats of the sheep were cut. The event, which took place at a time of the year when such slaughters of animals may be carried out for religious reasons, was filmed by another person. The particular aspect of the video relied on by the Crown to found relevance was that Mohamed, very shortly after cutting the throat of one of the sheep, could be heard to make some disparaging comments referring to the raffidis and the Chechen disbelievers. Mr Kelly conceded the issue of relevance but submitted that the video showing the slaughter of helpless animals might excite sympathy amongst suburban jurors. He submitted that there was a repugnance to the video which would dwarf the probative value derived from the comments.
During the course of submissions, the prosecution proposed a process of editing the video so that the actual slaughter of the sheep would not be observed. The lead-up and aftermath would still be shown, but the confronting section would be blacked out while the audio continued. In due course, the video was edited in this fashion and played to the Court.
Whilst the preference of Mr Kelly was for the video to not be shown at all, in the end, as I perceived it, he was content with the edited video.
I consider that the video as edited was relevant material, and that its probative value would not be outweighed by the danger of unfair prejudice.
Unrelated
In the end, no ruling was required in this category.
Topless images of Moukhaiber
In this category, Ms Gerry sought the exclusion of two images of the accused found on his phone which showed him wearing no top. The prosecution sought to rely on these images as being demonstrative of his build, and hence, relevant to the issue of identity, because the third offender at the mosque could be seen to be of a large build, consistent with that of the accused. Furthermore, in one of the images, the accused was giving the Tawhid.
Ms Gerry submitted that women on a jury, especially those who may have been the victims of domestic violence, may find the topless images of the accused confronting. She submitted that there were other images of the accused clothed which would achieve what the Crown wants out of the images. She submitted that the probative value of the images was outweighed by the danger of unfair prejudice.
Mr Robinson submitted that it was an ‘incredible stretch’ to submit that the sight of the accused’s muscular unclad body might bring up thoughts of violence in the minds of female jurors. There was no prejudice associated with the images and they should be admitted.
Decision on topless images of Moukhaiber
The topless images of the accused are relevant for the reasons submitted by the prosecution. Furthermore, I do not believe there is any prospect that the sight of the images could engender any prejudice towards the accused, much less a danger of prejudice which would outweigh the probative value of the images.
Conclusion
No rulings were required of me at this time in respect of the categories in Exhibit O to which I have made no specific mention in this ruling.
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