R v Taleb

[2019] NSWSC 241

Supreme Court

New South Wales

Medium Neutral Citation:

R v Taleb [2019] NSWSC 241

Hearing dates:

25 February 2019 – 5 March 2019

Date of orders:

08 March 2019

Decision date:

08 March 2019

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

Evidentiary rulings made – see paragraph [172]

Catchwords:

CRIMINAL LAW – evidence – nature of objections – grappling with smoke – controlled operation – whether “cross border” operation – where investigation entirely within New South Wales – police inadvertently obtain wrong authority – discretion to admit evidence in spite of unlawfulness – whether police misled issuing authority – whether authority authorised terrorist act – whether authority authorised interception of telephone calls – construction of statute – appropriate time limit – whether warrant exceed statutory time limit

CRIMINAL LAW – evidence – electronically recorded interview – where suspect seeks to exercise right to silence – where police continue questioning – where accused seeks information as to why he is being charged – rule of practice – where police purport to continue “process” after accused exercised right – whether any such process exists – whether interview should be terminated – evidence obtained improperly – discretion to admit – evidence excluded

CRIMINAL LAW – evidence – material extracted from accused’s smart ‘phone – evidence relevant to accused’s belief in radical Sunni Islam – whether prosecution need to establish that accused viewed material – binding authority to the contrary – prejudicial impact of evidence – executions and beheadings – selection of material admissible – most distressing evidence excluded

Legislation Cited:

Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Evidence Act 1995 (NSW)
International Covenant on Civil and Political Rights
Law Enforcement (Controlled Operations) Act 1997 (NSW)
Law Enforcement (Controlled Operations) Regulation 2017 (NSW)
Telecommunications (Interception and Access) Act 1979 (Cth)

Cases Cited:

Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22
Elomar v The Queen [2014] NSWCCA 303; 300 FLR 323
Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; 293 ALR 384
Gedeon v NSW Crime Commission (2008) 236 CLR 120; [2008] HCA 43
Gedeon, Gilbert v R [2013] NSWCCA 257
Gilbert v The Queen (2000) 201 CLR 414; HCA 15
John Fairfax Publications Pty Ltd & Anor v District Court of NSW & Ors [2004] NSWCA 324
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705
Plevac v R (1995) 84 A Crim R 570
R v FE [2013] NSWSC 1692
R v Jamal [2008] NSWCCA 177; 72 NSWLR 258
R v Simmons; R v Moore (No 4) [2015] NSWSC 259
R v Sloane (1990) 49 A Crim R 270
Ridgeway v The Queen (1995) 184 CLR 19
Sherman v United States (1958) 356 US 369
The Queen v Ireland (1970) 126 CLR 321; HCA 21

Category:

Procedural and other rulings

Parties:

Regina
Moudasser Taleb

Representation:

Counsel:
P McDonald SC; S Duggan (Regina)
M Finnane QC (Mr Taleb)

  Solicitors:
Commonwealth Director of Public Prosecutions (Regina)
Zali Burrows at Law (Mr Taleb)

File Number(s):

2017/00179287

Publication restriction:

No publication until the conclusion of the trial.

Judgment

1. Moudasser Taleb is charged with an offence that might shortly be described as doing acts preparatory to engaging in hostile activity in a foreign country. This is an offence against s 119.4 (in combination with s 119.1) of the Criminal Code 1995 (Cth). Mr Taleb has raised a number of objections to parts of the evidence that the prosecution seeks to adduce. Four witnesses were examined and around 3000 pages of material was tendered on the voir dire. Submissions were made over four days. The empanelment of a jury was deferred until the issues were resolved. This judgment was prepared in a hurry. [1] Some of the issues do not lack in complexity.

   1. The judgment was published in draft on 8 March 2019 to ensure the trial could proceed on Monday 11 March 2019. It has been somewhat revised for final publication. Where revisions are significant, it is indicated in a footnote.

The objections in a nutshell

2. The objections fell into the following categories: [2]

   2. These are the writer’s terms and summary of the argument, having considered the written and oral submissions of Queens Counsel for the accused. At the conclusion of the seven day voir dire, Queens Counsel confirmed that these encapsulated his objections and arguments.

1. An objection to evidence gathered under a “cross-border controlled operation” authority under the Law Enforcement (Controlled Operations) Act 1997 (NSW) (‘LECO Act’) granted on 24 March 2017 (‘the authority’). This mainly concerned the evidence of an undercover police officer (‘UCO’) and related messages and recorded conversations between the UCO and Mr Taleb. This argument was multifaceted; it involved the construction and interaction of two pieces of legislation and a close consideration of the actions of the accused and the UCO. The argument was discursive and involved the contention that the evidence was improperly or unlawfully obtained because:

1. The authority was invalid.

2. The detective who applied for the authority failed to disclose relevant information to the officer who granted the authority.

3. The operation commenced before the authority came into effect.

4. Contrary to the LECO Act, the authority purported to authorise actions that endangered the safety of the community.

5. Actions taken by the UCO fell outside those authorised by the controlled operation authority because the accused was encouraged to do things (said to constitute the elements of the offence) that he would not otherwise have done.

6. An authority under the LECO Act could not authorise New South Wales police to investigate a Commonwealth offence.

7. The operation or investigation was not a “cross-border” operation because it was conducted entirely within the State of NSW.

8. The authority purported to authorise NSW police to conduct operations in Victoria even though there was no intention to conduct such operations.

2. An objection to evidence gathered under a Commonwealth controlled operation certificate. This objection was not pressed once Queens Counsel for Mr Taleb realised the factual basis of the objection was misconceived.

3. An objection to an electronically recorded interview with the accused (‘ERISP’). This was on the basis that the evidence was improperly obtained because the accused indicated that he wished to exercise his right to silence and the investigators continued to question him.

4. An objection to recordings obtained by telephone intercepts on the ground that the warrants granted under the Telecommunications (Interception and Access) Act 1979 (Cth) (‘the T/I Act’) were invalid or, in the alternative, that they were valid only for a period of 45 days.

5. An objection to material extracted from the accused’s mobile telephone. This included many images, videos and other items extracted from his ‘phone that the prosecution says demonstrate an interest in, or support of, radical Islam and Jihad. It also included a DVD which recorded one of the detectives being filmed while interrogating the telephone and looking through various files, some of which may be relevant on the same basis. This DVD was made on the Friday before the trial was due to commence. The accused’s lawyers were made aware of it after close of business on the Friday and given the opportunity to view it over the weekend before the voir dire commenced. The objection to the ‘phone material was on two broad bases. First, it was submitted that the provenance of the material was not established in that there was no evidence proving that Mr Taleb was responsible for downloading (or uploading) this material or that he had ever viewed, let alone approved of, the things depicted in the material. Second, it was submitted that the probative value of the evidence was outweighed by the danger of unfair prejudice because of the distressing nature of the material. In the final hour of the voir dire, after seven days of evidence and argument, the prosecution advised the Court (and presumably the defence) that it proposed to present the material in a way that would reduce the potential for prejudice. For example, the Court was told that various videos said to depict people being executed by decapitation would be stopped at the critical moment and a police officer would tell the jury that there was then a beheading or, in some cases, the screen would go black and there would be words to a similar effect.

6. An objection to material located on a Facebook account maintained by the accused. This objection was based on the absence of evidence that the accused approved of the material or was responsible for downloading it to his account. There was also an objection to the evidence on the basis that the officer through whom it is to be presented lacked the necessary expertise to provide opinion evidence.

3. Senior Counsel for the prosecution pressed for the admission of the material while making some concessions in relation to the difficulties that exist in the evidence itself, and acknowledging the complexity and (possible) ambiguity of the legislation. I was told, and accept, that there has already been a significant reduction of the material that is to be placed before the jury. For example, the accused’s telephone contained thousands of videos and picture files but the prosecution only presses a select number of these. The Prosecutor advised the Court that large parts of the evidence tendered on the voir dire would not be adduced before the jury. The Prosecutor also indicated ways in which the material would be presented to reduce any potential for prejudice.

4. The Prosecutor submitted that, even if impropriety and unlawfulness was established in the way any, or all, of the evidence was obtained, the evidence ought still to be admitted pursuant to s 138 of the Evidence Act 1995 (NSW).

5. Without meaning to level criticism at the lawyers, there were problems with the way in which the voir dire was conducted. This caused delay and created difficulty in making decisions quickly. It resulted in a significant increase in the estimated length of the voir dire and the trial proper. Jury panels have been delayed on several occasions. Working out exactly what had to be decided was, at times, like grappling with smoke. A problem for both sides was that counsel changed in the weeks leading up to the trial. Both Senior Counsel for the prosecution and Queens Counsel for the accused came into the case very late. As a result, the voir dire was conducted in a somewhat haphazard manner, an excessive amount of material was tendered and most of it was not subject of submissions. Hundreds of pages not to be adduced at the trial were tendered on the voir dire. Additional material was tendered after the evidence had closed and well after the parties commenced their submissions. [3] The nature and content of the objections taken by the defence changed over the course of the voir dire. The content of what is to be tendered (at trial) by the Prosecutor, the basis upon which it is to be tendered, and the steps designed to minimise the prejudice occasioned by the more graphic material only became known towards the end of the Prosecutor’s submissions.

   3. For example, Ex VD9 and Ex VDU were tendered well after the evidence had closed.

The prosecution case, police investigation and chronology of some of the relevant events

6. The prosecution case is that from February to June 2017, Mr Taleb intentionally did a number of acts, (reckless as to whether they were) in preparation to travel overseas and fight with ISIS in Syria. It is unclear on the evidence how he first came to the notice of police as somebody who may engage in terrorist activities. However, by early 2017 (and possibly earlier), a police investigation into his activities had commenced. This investigation continued, in various forms, until Mr Taleb was arrested on 15 June 2017.

7. On 11 January 2017 Detective Sutherland interrogated the Facebook account operated by the accused. [4] On 17 January 2017 police attended the area of Mr Taleb’s home in Panania and took a number of photographs. [5] On the evidence before me, these appear to be the first steps taken in the investigation into Mr Taleb’s activities.

   4. Ex VD7 Vol 2, Tab 10.

   5. Ex VDK, Item 4 (Statement of Allam and attachments, pp 14-16).

8. On 25 January 2017, investigators obtained (from a senior police officer) a cross-border controlled operation authority CB CO 17/023 under the LECO Act. [6] That authority was varied twice and the operation pursuant to that authority was concluded on 24 March 2017 because “the non-evidentiary phase of the operation ceased with the intention of commencing an evidentiary cross-border operation”. [7] The prosecution does not seek to adduce any evidence gathered during this “non-evidentiary” phase.

   6. Ex VDK, Item 13 and 15 (pp 45, 53).10.

   7. Ex VDK, Item 15 (p 64).

9. On 3 February 2017, a warrant authorising intercepts of Mr Taleb’s telephone calls was issued. This warrant expired on 30 March 2017. On 28 March 2017, a further warrant was issued authorising intercepts until 15 June 2017. A number of calls were intercepted between Mr Taleb and other people between 8 February 2017 and 16 April 2017. [8]

   8. Ex VDK, Items 31-43 (pp 120-622).

10. On 24 March 2017, another application for an authority to conduct a cross-border controlled operation was made. [9] At 3:40pm on that day, a senior police officer granted ‘Authority to Conduct a Cross-Border Operation CB CO 17/097’. [10] The UCO made contact with the accused later that day and, over the next two months or so, there were a number of “deployments” of the UCO. [11] There was an ongoing exchange of “chat” on an application called “Telegram” and there were meetings on 5 April 2017, 7 April 2017, 13 April 2017, 3 May 2017 and 5 June 2017. The conversations between the UCO and Mr Taleb were recorded pursuant to the cross-border controlled operation authority. [12]

    9. Ex VDN.

    10. Ex VD7 Vol 1, Tab 3.

    11. See Ex VDM; Ex VD7 Vol 1, Tabs 6, 7, 22, 36, 37, 46 and 47; Ex VD7 Vol 2, Tabs 3 and 4.

    12. Ex VD7 Vol 1, Tabs 7, 22, 37 and 47 and Vol 2, Tab 4.

11. On 20 April 2017, a federal police officer made an application for a “Formal Authority for a Major Controlled Operation” under Part 1AB of the Crimes Act 1914 (Cth). [13] This authorised the same UCO to engage in similar conduct as the earlier NSW cross-border controlled operation authority. The circumstances surrounding this application are somewhat mysterious and, assuming the validity and legitimacy of the NSW authority, it is unclear why it was considered necessary or desirable to make it. It purported to authorise the same NSW UCO to engage in the same type of conduct. Detective Goodhew, who gave evidence on the voir dire, said that he was not involved in the application for the authority but was aware that it was being drafted. [14] In any event, the authority was granted on 20 April 2017 (although it is erroneously dated 20 July 2017, the day after it expired). [15] A sceptical view might be that investigators realised a Commonwealth authority was necessary because they were not, in reality, investigating a NSW offence (a statutory pre-requisite to act under an authority under the LECO Act). However, no such submission was made and it was not put to any police officer that the Commonwealth authority was sought in order to patch up the problems that might be said to attend the operation being conducted under the LECO Act.

    13. Ex VDK, Tab 16, p 68.

    14. Transcript of the pre-trial voir dire (‘T’) 102.

    15. Ex VDK, Tab 16 (pp 72-74).

12. On 15 June 2017, Mr Taleb was arrested at Sydney airport. [16] An ERISP was commenced at 11:43am and concluded at 3:29pm on 15 June 2017. [17]

    16. Ex VD7, Vol 2, Tab 17 (statement of Detective Allam).

    17. Ex VD7, Vol 2, Tab 21.

The controlled operation authorities

13. There were three controlled operation authorities, two (or four if one counts the variations to the first authority) under the LECO Act and one under the Crimes Act 1914 (Cth).

Controlled operation authority CB CO 17/023

14. The first, CB CO 17/023, was applied for and granted on 25 January 2017. [18] The operational plan for that authority expressed the aims of the investigation as follows: [19]

To investigate and gather evidence in relation to the suspected involvement of Moudasser TALEB and/or any associates in his/their involvement in terrorist related activities.

18. Ex VDK, Tab 13 (pp 45-48).

19. EX VDK, p 45.

15. When this authority was varied on 16 February 2017, the aims and objectives had expanded as follows: [20]

To gather evidence and information concerning involvement in terrorist related activities, supply of prohibited firearms and supply of False Australian Travel Documents by Moudasser TALEB, born: 23 January 1995, CNI: 723027397 of 11 Matts Ave, Panania, and/or his associates.

Identify and gather evidence or information regarding any other person(s) involved in the said terrorist related activities, supply of prohibited firearms / weapons / military style weapons and supply of False Australian Travel Documents.

Identify premises where prohibited firearms and/or false Australian travel documents are/or reasonably believed to be stored, and execute search warrants on those premises.

20. EX VDK, Tab 14, p 49.

16. A report on this authority prepared on 5 May 2017 included: [21]

9.    The Operation was concluded on 24 March 2017 for the following reason:

The non-evidentiary phase of the operation ceased with the intention of commencing an evidentiary cross border controlled operation. The next phase of the investigation will use a NSWP undercover operative to engage with TALEB through messaging application. The objective will be to gather evidence and information of TALEB’s intentions to travel overseas for foreign incursions and membership of a terrorist organisation.

.

10.    The following evidence or information of criminal activity was obtained:

The information obtained during the operation is that TALEB wants to travel to Syria to join ISIS in the war against the non-believers (kuffar). TALEB has researched flights through Europe in order to get to Turkey undetected. TALEB has purchased boots and has been preparing physically and mentally to ensure he is ready for battle. TALEB has been training Mixed Martial Arts. TALEB was initially in contact with a female who wanted to travel with him, however this has changed and he will now be travelling alone.”

21. EX VDK, Tab 15, p 64-65.

17. This material has some relevance to objections raised to the evidence gathered under CB CO 17/097, and that part of the objection that maintains that the NSW police were improperly investigating a Commonwealth offence. In particular, the report (in paragraph 10) does not suggest that any evidence was located that suggested Mr Taleb was a member of a terrorist organisation (an offence under NSW law). [22] On the other hand, paragraph 9 of the report makes it clear that the next phase of the operation would seek to gather evidence of, amongst other things, whether he was a member of a terrorist organisation.

    22. Crimes Act 1900 (NSW), s 310J.

Controlled operation authority CB CO 17/097

18. On 24 March 2017, Detective Goodhew made an application for controlled operation authority CB CO 17/097. [23] This application set out some of the evidence gathered by telephone intercepts. It said that the investigation was to “obtain details about Taleb’s intentions to travel, his allegiance to any proscribed terrorist organisation/s and any plans and/or preparatory acts Taleb has undertaken to travel overseas to engage in hostile activities.” (Emphasis added.)

    23. Ex VDN.

19. Detective Goodhew expressed the belief that “the cross-border controlled operation will be, or is likely to be, conducted in this jurisdiction and in one or more participating jurisdictions.” He stated the “grounds for this suspicion” as follows:[24]

The NSW Police Undercover Operative is likely to commit Commonwealth offences.

24. EX VDN, paragraph [3].

20. The aims and objectives were stated in the operational plan as follows: [25]

To gather evidence and information concerning involvement in terrorist related activities, namely Membership of a terrorist organisation contrary to Section 310J of the Crimes Act NSW 1900 and Preparations for incursions into foreign countries for purpose of engaging in hostile activities contrary to Section 119.4 Criminal Code Act (Cth) 1995 by Moudasser TALEB.

Identify and gather evidence or information regarding any other person/s involved in the said terrorist related activities.

25. Ex VD7 Vol 1, Tab 1, p 8.

21. The authority itself stated that the issuing officer was also satisfied that: [26]

(a) no participant will induce or encourage another person to engage in criminal activity or corrupt conduct of a kind that the other person could not reasonably be expected to engage in unless so induced or encouraged.

26. Ex VD7 Vol 1, Tab 3.

22. The authority purported to authorise Detective Goodhew to conduct a controlled operation:

“in participating jurisdictions namely:

Victoria”

23. There was never an intention to investigate in Victoria and no material that would explain why the authority purported to authorise such activity. Detective Goodhew said in evidence this was a “typographical error” that had been made by the legal consultants preparing the authority. [27] The Prosecutor could not explain the mistake.

    27. T 99.

Mr Taleb’s radicalism and diffidence

24. The evidence as to Mr Taleb’s intention to travel to Syria is at times contradictory. This is relevant, factually, to one of the arguments made on his behalf, namely that he would not have done the things he did but for the encouragement of the UCO. Ultimately, his intentions will be a question for the jury to consider. However, in resolving the question whether the police essentially induced an “unwary innocent”[28] to commit a crime he would not otherwise have committed, it is necessary to refer briefly to some of the evidence gathered before and during the controlled operation.

    28. Ridgeway v The Queen (1995) 184 CLR 19 at 50-51 (Brennan J); R v Sloane (1990) 49 A Crim R 270 at 273 (Gleeson CJ); Sherman v United States (1958) 356 US 369 at 372-373.

25. The evidence of Mr Taleb’s interest in radical Sunni Islam, Islamic State and the conflict in “The Levant” appears to be strong. Telephone intercepts show him expressing radical and frightening views and the material on his telephone and Facebook profile demonstrate a strong and partisan interest in the centuries old disputes between Shi’a and Sunni Muslims and a disdain for those who are considered to be nonbelievers.

26. However, the evidence also reveals occasions when Mr Taleb exhibited diffidence towards travelling overseas. It is evident that he had concerns about leaving his mother, who has Multiple Sclerosis and was being cared for in a nursing home. In conversations with the UCO, Mr Taleb seemed reluctant to leave his mother and sought reassurance from the UCO and ‘the brothers’ that it was okay to do so. The following exchange occurred at the first meeting between Mr Taleb and the UCO: [29]

    29. Ex VD7 Vol 1, Tab 7, pp 57-59; 64-65.

MT: I just want to --

UCO: -- do you.

MT: -- ask you something --

UCO: Yeah bro?

MT: --your advice.

UCO: Mmm.

MT: My mum --

UCO: Yeah.

MT: And, and if you can ask the brothers too… my mum is sick.

UCO: Yeah.

MT: She’s MS, she has MS.

UCO: Yeah.

MT: And, now she’s being looked after, you know.

UCO: Mmm.

MT: She’s in a centre.

UCO: Yeah.

MT: But they’re like Kafir (non-believer) you know.

UCO: Yeah, yeah, you --

MT: It’s mostly women.

UCO: -- you, you, yeah.

MT: And haleh (now) she wants to come back home and when she comes back home, I usually look after her.

UCO: Yeah, yeah. Good, good. That’s what you have, you have to look after your family ---

MT: Yeah

UCO: First and foremost your family, you know what I mean? Before we even take these steps, you have to make sure you family’s --

MT: Yeah

UCO: -- OK

MT: That’s why I’m asking you for inshallah (God willing) make sure. Um, uh, and the thing is, yanni (maybe), haleh obviously Jihads the way.

UCO: Mmm

MT: You know

UCO: Yeah

MT: She’s got a home here

UCO: But --

MT: I’m just thinking --

UCO: Just, all of this --

MT: …too

UCO: All, all this and you, you, you tell me. I, like I said, I can’t make a decision for you.

MT: Yeah.

UCO: I just help out. I can get you there. I can help you out with --

MT: Yeah.

UCO: -- things you need. I can give you advice, but I can only do that once the green light’s been given by my people, once they know you’re a hundred percent committed and, like I said, today, like, you were late twice. Doesn’t look good, you know what I mean?

MT: It’s not that

…

UCO: Take the next step. You want to, so, what do you want me to ask them? Do you want me to ask about your, your mum?

MT: Yeah. Just, um, she’s in a wheelchair, she has MS, but she’s being looked after.

UCO: Yeah…that’s, that’s alright. That’s --

MT: And what comes, like, is it all right if I leave her?

UCO: Yeah.

MT: Yeah.

UCO: Ok. Let me --

MT: Deen (religion), deen (religion) wise.

UCO: Yeah.

27. In the course of the second deployment, the UCO told the accused that ‘the brothers’ had said “as long as she’s being cared for…that’s, it’s alright”. [30] The UCO told the accused that it’s up to him whether he stayed for his mum, to which Mr Taleb responded “no, no I just wanted to know what comes first”.

    30. Ex VD7 Vol 1, Tab 22, p 132.

28. It is clear from these conversations that Mr Taleb experienced some uncertainty about going overseas while his mother was unwell and was concerned that he shouldn’t be leaving her. On the fourth deployment, the UCO asked the accused to consider what would happen if he got turned away at the airport and the following interchange occurred: [31]

    31. Ex VD7 Vol 1, Tab 47, p 261.

UCO: But if for example they, they turn you away, they say, no, give us your passport, see you later. Then what? What do you want to do? There’s like do you want us to help with something else?

MT: Well if that happens the worst case.

UCO: Mmm.

MT: I have my Mum.

UCO: Yeah.

MT: Yeah.

…

UCO: There are other things I can help you with, but obviously that’s down the track. You know what I mean? Like we’re a little while off that anyway until you 100 percent get the money. We’re ready. And when you get the money we’ll arrange it, but I’m saying if they turn you away at the airport then what’s the next step?

MT: I can just, ah, look after my mum.

29. During the later stages of the operation, the accused continued to show a degree of reluctance. On the fifth and final deployment, he again raised concerns about leaving his mother: [32]

    32. Ex VD7 Vol 2, Tab 4, p 322.

UCO: We’ll, we’ll, you know, thing, things will move quickly from now, you know what I mean? So, hopefully, you know, we’ll get you out of here before they, how, how’s your mum anyway?

MT: Yeah, she’s alright.

UCO: Yeah.

MT: She is the main concern for me.

UCO: Yeah.

MT: Mmm.

UCO: Are you, are you, are you ready to go or ---

MT: Yeah, yeah.

UCO: Yeah.

MT: But, I just, I dunno. This, this is annoying me now, it’s breaking me ---

UCO: What is?

MT: ---and my mum, you know.

UCO: (SIGHS) What do you do? You have to ---

MT: Yeah.

UCO: You have to, you have to look after her, you know what I mean? You, you can only go, she, if, if, if you’re sure she’s gunna be cared for ---

MT: Yeah

UCO: --- you know what I mean?

MT: No, that is right. I’m ---

UCO: Yeah.

MT: Just thinkin’… for that, you know.

30. At the time of the undercover operation, Mr Taleb had not pledged his allegiance to any particular group which, according to a report of Dr Shanahan tendered by the prosecution, [33] was a requirement to becoming “what would be traditionally considered to be member” of the Islamic State: [34]

UCO: Now, where, where exactly? Like, who are you, are you, have you pledged your, uh allegiance to anyone in particular? Where did you, where did you want to go? Where in particular?

MT: …

UCO: Yeah. You, you, you pledge your allegiance to anyone in particular or no-one?

MT: Nuh.

UCO: You just need me to help you?

MT: Yeah.

33. Ex VDU.

34. Ex VDU, p 6.

31. Despite this, Dr Shanahan’s view was that the accused’s “statement that he wishes to fight for Islamic State is consistent with that organisation’s options for individuals to express their commitment to them.” [35]

    35. Ex VDU, p 7.

32. Over the course of the operation, Mr Taleb appeared to be perplexed about the group to which he should pledge allegiance and where to travel without options being given to him: [36]

UCO: ---it’s all, it’s all ready to go. So, where did you say last time you, you want to go, Iraq or Syria?

MT: I dunno, wallah (swear to God).

UCO: Huh?

MT: I dunno.

36. Ex VD7 Vol 1, Tab 37, p 207.

33. On the other hand, it is evident that Mr Taleb already had a desire to travel overseas (inferentially at least, to fight) when he was put in contact with the UCO. In the first deployment, Mr Taleb told the UCO that he needed help with “Hirajah (migration)”. [37] The accused also spoke to the UCO of a previous attempt at Hirajah that had fallen through as a result of his marriage problems. In the second deployment, Mr Taleb told the UCO that he was ready to go “a month, like a couple of months ago”. [38]

Evidence gathered under the controlled operation authority and acts done in preparation to travel overseas

37. Ex VD7 Vol 1, Tab 7, p 51.

38. Ex VD7 Vol 1, Tab 7, p 69.

34. CB CO 17/097 was authorised on 24 March 2017 and the first reported contact between the UCO and Mr Taleb occurred at 7:16pm on that date via the Telegram messaging app. The UCO introduced himself as being “from the pest control service” and suggested they catch up to discuss a “new job” he might be able to help the accused with, to which Mr Taleb replied “…he said you could help me out with getting to the jobsite”. [39] Between 24 March and 5 April 2017 numerous Telegram messages were exchanged culminating in the first deployment on 5 April 2017 when the accused and the UCO met in North Parramatta. [40]

    39. Ex VD7 Vol 1, Tab 6, pp 34-36.

    40. Ex VD7 Vol 1, Tab 6, pp 34-44.

35. During the first deployment the accused told the UCO that he didn’t have money himself but that his cousin was going to help him to organise the funds to travel. The UCO told Mr Taleb to “train at home” and to make sure he was “good with” the boots he owned as people who didn’t know how to walk in the boots could “fuck up their feet”. Mr Taleb said that he had been walking “here and there”. [41]

    41. Ex VD7 Vol 1, Tab 7.

36. Between 6 and 7 April 2017 various Telegram messages were exchanged to organise the next meeting to which the UCO told Mr Taleb to bring his boots and winter clothes. [42]

    42. Ex VD7 Vol 1, Tab 21.

37. The second deployment occurred on 7 April 2017. The accused showed the UCO thermals, gloves and a jacket that he had “prepared from last time”. The UCO then spoke of the need for the accused to have gloves and a sleeping bag: [43]

    43. Ex VD7 Vol 1, Tab 22, pp 125-126.

UCO: Gloves.

MT: Jackets. No, that’s the cold bro.

UCO: Yeah. Mmm. Bro, it’s, even though it’s, it’s it’s hot ---

MT: I heard it’s freezing.

UCO: ---hot, yeah, it’s cold, bro. Like, you’ve got to, you, you know what I mean? Like, I know, this is good, but you might need to get ---

MT: …

UCO: --- some more

MT: Snow, um ---

UCO: But you, you, you might need to get some, bro.

MT: Reckon?

UCO: Yeah, you can’t, you, uh, you never know. If, if something happens to that ---

MT: Mmm.

UCO: ---you’ll freeze.

MT: Yeah.

UCO: Have you got a sleeping bag or anything?

MT: Nuh.

UCO: Like, a, you know how you can get those, uh, minus 4, minus 5 degree sleeping bags rated you can buy them from hiking stores and stuff.

MT: Yeah, I will, I will… need that yeah?

UCO: Yeah, you’ll need that, bro.

38. In the course of this deployment the UCO told Mr Taleb that he would need more thermals and pants and that he should look for a solar powered phone charger. He told the accused that “over there” he would need to carry a heavy backpack long distances and he should walk in the boots and with a backpack (filled with weights or sandbags) to “get used to it”. The UCO spoke of the need to buy a return airline ticket and come up with a cover story to avoid suspicion. Mr Taleb indicated that he was still hoping to get money from his cousin. [44]

    44. Ex VD7 Vol 1, Tab 22.

39. On 10 April 2017 the UCO and Mr Taleb planned their next meeting via Telegram and the third deployment occurred on 13 April 2017. In the course of this meeting, the accused said that he had been doing “them long walks” with a weighted backpack, had “got that sleeping bag” and “got that solar panel charger” as well as more thermals and clothes. When questioned about money, Mr Taleb said he was meeting with his cousin that day. The accused said he wasn’t sure where he wanted to go and the UCO told him “you have to decide, brother. You have to tell me.” Mr Taleb settled on Sham and the UCO told him that he would soon need to send money through Western Union. The UCO told him that when he got the contact, “I’ll let you know the name to send it to. Three hundred dollars”. [45]

    45. Ex VD7, Vol 1, Tab 37.

40. Between 14 April and 3 May 2017 the accused and the UCO communicated via Telegram. On 15 April 2017 the UCO provided Mr Taleb with the name of the Western Union account that he was to provide the $300 to for “help on the other end”. On 25 April Mr Taleb messaged the UCO to tell him that he went to transfer the money but his license had expired so they didn’t accept it. In the same conversation Mr Taleb indicated that he should have more money from “the brother helping me out” soon. On 27 April 2017, Mr Taleb messaged the UCO to tell him that the $300 had been sent and provided him with the secret question and answer necessary to access to it. Another meeting was organised. [46]

    46. Ex VD7, Vol 1, Tab 46.

41. The fourth deployment occurred on 3 May 2017. The accused told the UCO that he had ordered tactical gear from the internet and that his cousin hadn’t sent him the money and kept “delaying” him. [47]

    47. Ex VD7, Vol 1, Tab 47.

42. After the fourth deployment, the accused and the UCO exchanged messages via Telegram between 9 May and 5 June 2017. On 11 May, the accused messaged the UCO asking whether any of the brothers would be willing to help out with money because “the bloke that was helping me changed his mind”. On 16 May the UCO told the accused that the brothers were willing to pay for his ticket. On 30 May the accused told the UCO “Inshallah I wanna get outta here asap”. A further meeting was planned and the UCO told the accused to bring his passport so a ticket could be arranged. [48]

    48. Ex VD7, Vol 2, Tab 3.

43. On 5 June 2017, the UCO and the accused met again (the fifth deployment). Mr Taleb brought his passport to the meeting and the UCO said that he would send the details to the brothers to book the tickets, following which he would send the accused step by step instructions. Mr Taleb told the UCO he would try his best to get money to which the UCO replied “It’s all right. We’ll sort it out. You…just tell me what you, you think you’ll need and then I’ll sort it out for you”. [49]

    49. Ex VD7, Vol 2, Tab 4.

44. Between 8 June and 15 June 2017 the UCO and Mr Taleb communicated via Telegram about the accused’s travel plans. On 9 June the UCO told Mr Taleb that the brothers had booked his flight for the following Thursday (15 June). On 14 June the UCO sent him instructions for the following day, including when to arrive at the airport, and which gate the UCO would meet him at. At 8:48am on 15 June the accused sent the UCO a message to say that he was getting a taxi and was on his way. Mr Taleb was arrested at the airport. [50]

the objection to the validy of, and evidence gathered under, cross-border controlled operation CB CO 17/097

50. Ex VD7, Vol 2, Tab 9.

Overview

45. The objection to the evidence gathered under CB CO 17/097 had many aspects to it. At its core was a submission that the NSW police could not be authorised under the LECO Act to investigate a Commonwealth offence. There was ambiguity and inconsistency in some of the submissions. At one stage, it was submitted that the suggestion that police were investigating a NSW offence was “window dressing.” [51] Another aspect concerned the failure of the Detective to advise the issuing officer of matters tending to exculpate Mr Taleb and suggest he was not a terrorist. [52] On the other hand, Queens Counsel went on to eschew any suggestion that the police were lying or deliberately behaving improperly. [53] I find it difficult to reconcile these submissions. There are some fundamental issues at stake in terms of the reach and scope of the authorities under the LECO Act and the submission was that the only proper authority, when NSW police are investigating a Commonwealth offence, was a controlled operation authority obtained under the Crimes Act 1914 (Cth).

Did Detective Goodhew mislead the issuing officer?

51. T 143.

52. T 60-61 and MFI-VD19, p 7.

53. T 144-146.

46. On 12 February 2017, Mr Taleb had a long and discursive telephone call with a young woman called Jihan Ghazzaoui. This conversation, along with a number of others, was intercepted and recorded. The prosecution relies on parts of these conversations to establish the accused’s interest in radical Islam and desire to travel to Syria to join Islamic State. Putting to one side the submission that the warrants purporting to authorise the interception of these calls were invalid, Queens Counsel relies on some of the things said to found a submission that Mr Goodhew failed to provide the issuing officer with all of the relevant information. In particular, it was submitted that the issuing officer should have been told that Mr Taleb specifically said “I’m against terrorism” and that “terrorism … wrecks the name of Islam. It makes Muslims look bad.”

47. The application for CB CO 17/097 contained a relatively lengthy narrative as to the grounds of Mr Goodhew’s suspicions: [54]

    54. EX VDN, pp 1-3.

Strike Force TEKAPO is an investigation into Moudasser TALEB (TALEB) for membership of a terrorist organisation and preparations for incursions into foreign countries for the purpose of engaging in hostile activities.

TALEB currently resides alone at [REDACTED]. TALEB does not have any contact with his father. TALEB's mother, Angel MERHAB (MERHAB) suffers from Multiple Sclerosis (MS). She is currently receiving respite care at a rehab facility in Bankstown. In October 2016, a domestic assault incident occurred between TALEB and his 11 year old step brother, [REDACTED]. Following the assault, [REDACTED] moved out of the family home and moved in with his father in Lakemba. TALEB is a practising Sunni Muslim

NSW Police holdings record TALEB has seven charges, including common assault, assault occasioning actual bodily harm, contravene AVO, destroy or damage property, stalk/intimidate. These charges predominantly relate to domestic assaults. The most recent charge involved TALEB assaulting his step brother, [REDACTED]. TALEB is on bail for this offence and is due to appear at court on 20 April 2017.

On 3 February 2017, police were granted a telecommunications interception warrant to lawfully intercept service [REDACTED], used by TALEB.

At 9.53pm on 8 February 2017, police lawfully intercepted a call received by TALEB from service [REDACTED], suspected of being used by Omar KORK. During the conversation TALEB was very vocal about his hate of Shia Muslims and how he wants to “take their heads off”, and if he has “dramas” with a Shia they should be killed and that there is a war going on with the Shia's. TALEB referred to himself and other like him as “the soldiers of Allah”.

At 1.27am on 12 February 2017, TALEB was lawfully intercepted making a phone call to service [REDACTED], suspected of being used by Jihan GHAZZAOUI (GHAZZAOUI). During the conversation TALEB and GHAZZAOUI spoke about being martyrs for the sake of Allah. TALEB and GHAZZAOUI agreed the best time to martyr oneself was during Ramadan and TALEB wished to “aim for the highest ranks”. Investigators believe this was a reference to the ranks within Jannah (Islamic afterlife) which is purported to be obtained by killing non-believers. Investigators believe this indicates TALEB was intending to kill a large amount of 'non-believers'.

[REDACTED]

This Information has led investigators to believe TALEB has an extreme Islamic Ideology supportive of the Islamic State and religiously motivated acts of violence. As TALEB's mother suffers from MS, police suspect the deterioration of her medical condition may be a trigger that could see TALEB hasten his plans to travel to join Islamic State.

Continued lawful monitoring of TALEB's service has shown a continuation of his extremist Islamic ideology and desire for martyrdom. Due to the nature of TALEB's conversations and hatred for the "kuffar" (non-believers) investigators seek the authority to allow NSW Police Undercover Operative 581 (UCO581) to engage in controlled activities with TALEB.

[REDACTED]

The credibility provided by UCO581 is vital to the success of the operation. Investigators intend to have UCO581 engage with TALEB online. If the online engagement is successful investigators plan to transition to a face to face meeting between TALEB and UCO581 to obtain details about TALEB's intentions to travel, his allegiance to any proscribed terrorist organisation/s and any plans and/or preparatory acts TALEB has undertaken to travel overseas to engage in hostile activities.

48. When challenged as to why this narrative did not include reference to the fact that Mr Taleb had said that he was against terrorism, Mr Goodhew gave the following evidence: [55]

    55. T 60-61.

FINNANE

Q. Just to ask you this one question before I do leave. When you put your application in for the undercover to conduct a cross-border controlled operation you were putting forward what you believed was relevant?

A. Correct.

Q. Anything that was relevant had to be put forward, did it not?

A. Well yes.

Q. And that would include, would it not, anything that tend[ed] to show that the person concerned was not a terrorist, you’d have to put forward the stuff that positively, on your view, was directed to that and anything else that tend[ed] to show he was not?

A. Well as I understand it the application must contain grounds, so my grounds for reasonably suspecting that the criminal activity is happening, is likely to have or may have occurred.

Q. So you put forward only the material which in your view positively went towards establishing that matter?

A. Yes.

Q. You did not put forward anything that might suggest otherwise?

A. Correct.

HIS HONOUR

Q. Why is that? I mean you’re asking for authority to commit crime, aren’t you?

A. Yes.

Q. So it’s a big thing?

A. Yes it is.

Q. And you’re asking that of a fellow police officer who is higher ranked than you but you don’t - it’s generally considered not appropriate to put before that higher police officer evidence that might exculpate the suspect?

A. I didn’t believe we had any evidence to put in that would exculpate the accused.

Q. But if you’d known of it you would have put it in, is that the implication behind your last answer?

A. Yes that’s right.

49. To examine and understand the assertion that the comments were not genuine, it is necessary to set out an extended portion of the passage from the telephone intercept in which Mr Taleb said that he was against terrorism: [56]

    56. EX VDK, pp 194-196.

MALE ONE:   I'm training my - I'm training myself for mentally to see - it's not just about physically, it's about you have to be mentally strong too, you know.

FEMALE ONE:   What do you mean? So do you stay up all night?

MALE ONE:      Huh?

FEMALE ONE:   Muh?

MALE ONE:      What is it?

FEMALE ONE:   I'm saying do you stay up all night or something to be strong?

MALE ONE:      No.

FEMALE ONE:    (laughs)

MALE ONE:      You don't get what I mean.

FEMALE ONE:   Um, no, I get what you mean.

MALE ONE:   So when you're in the path - in the path - when you're in the path of God sometimes you have to stay up. Do you get what I mean now?

FEMALE ONE:   Do you ever imagine yourself like fighting?

MALE ONE:      Mm-hmm. Huh?

FEMALE ONE:   Do you ever imagine yourself fighting? Oh you know what, that's not even good to say over the phone.

MALE ONE:   I was just going to tell you that. Who said I'm fighting? I - I just want to go and I just want to give charity and be a --

FEMALE ONE:   Charity?

MALE ONE:      -- and be a --

FEMALE ONE:   I mean, as in - yeah.

MALE ONE:   -- and be a moderate, ah, Muslim, you know, and follow the law.

FEMALE ONE:   Exactly. That's the best way to go.

MALE ONE:      Yeah. You know?

FEMALE ONE:   Mm.

MALE ONE:      I'm against terrorism.

FEMALE ONE:   One hundred per cent.

MALE ONE:   Terrorism, it - it, ah, it wrecks the name of Islam. It makes Muslims look bad.

FEMALE ONE:   Yeah.

MALE ONE:      You know what I mean?

FEMALE ONE:   But the real terrorism are the disbelievers. They oppress the Muslims and then they say, oh, ah, Muslims are doing this and that.

MALE ONE:      No. No.

FEMALE ONE:   Aaah.

MALE ONE:   The UN - the UN, they're the most peaceful people you'll find.

FEMALE ONE:   Oh very peaceful.

MALE ONE:      Yeah.

FEMALE ONE:   Mm.

MALE ONE:   And the American government, oh them, they're the - they're the hope for humanity.

FEMALE ONE:   Mm-hmm.

MALE ONE:      (laughs)

FEMALE ONE:   One hundred per cent.

MALE ONE:      Ah.

FEMALE ONE:   Mm-hmm.

MALE ONE:      You know, they're the democracy, you know.

FEMALE ONE:   Yeah.

MALE ONE:      Democracy's --

FEMALE ONE:   Isn't that where --

MALE ONE:      -- the way.

FEMALE ONE:   One hundred per cent. Thank you for telling me.

MALE ONE:      May God curse them (laughs)

FEMALE ONE:   Yuck, man, I swear. Like I just so ...(indistinct)...

MALE ONE:      May God curse them

FEMALE ONE:   Disgusting dogs.

MALE ONE:      I swear.

FEMALE ONE:   Anyways, I shouldn't talk but it just burns me.

MALE ONE:      No, you should talk. Why not? Evil should --

FEMALE ONE:   Because the funny --

MALE ONE:      -- be exposed.

[Emphasis in original to indicate words translated from Arabic.]

50. This portion of the telephone intercept was played in court. [57] The transcript indicates in bold where words were spoken in Arabic.

    57. T 134.

51. The LECO Act provides for applications for authorities to conduct cross-border controlled operations in ss 20C and 20D. The Prosecutor drew my attention to the relevant regulations. [58] Regulation 10 refers to the code of conduct in Schedule 2. The code of conduct provides that the applicant for an authority must “at all times act in good faith”[59] and that “the applicant must ensure that the application”:[60]

(a) discloses all information of which the applicant is aware as to the circumstances giving rise to the application, especially those that could affect the way in which the application will be determined, and

(b) does not contain anything that is incorrect or misleading in a material particular.

58. Law Enforcement (Controlled Operations) Regulation 2017 (NSW).

59. Law Enforcement (Controlled Operations) Regulation 2017, Schedule 2 Code of Conduct, cl 1(1).

60. Law Enforcement (Controlled Operations) Regulation 2017, Schedule 2 Code of Conduct, cl 1(2).

52. Mr Goodhew was not really challenged as to whether he acted in good faith. Rather, the suggestion was that he should have disclosed that part of the conversation set out above because it could have affected the way the application would be determined.

53. I accept that it would have been better if Mr Goodhew had disclosed those parts of the conversations when making the application. Even so, in the absence of any clear challenge, I accept that he genuinely believed that Mr Taleb’s comments about being “against terrorism” and terrorism giving Muslims a bad name were said in jest or sarcastically. The context might suggest that. The comments came very soon after Ms Ghazzoui asked about fighting and immediately said “that’s not even good to say over the phone”. The subsequent comment that the “American Government” is “the hope of humanity” smacked of sarcasm.

54. Further, there were many other matters recorded in the ‘phone calls that placed Mr Taleb in a worse light and these were not emphasised in the applications. These included references to butchering people, showing no mercy and being at war with the [Shi’a] dogs.

55. The practical reality is that Mr Goodhew was attempting to summarise many hours of telephone intercepts into around one page of the application. I am not satisfied that Mr Goodhew (i) breached the code of conduct in failing to refer to the particular portion where Mr Taleb said he was against terrorism or (ii) acted improperly or unlawfully in failing to disclose that information.

Did the controlled operation commence before the authority was granted?

56. It was submitted that the police commenced the operation before CB CO 17/097 came into effect. I reject this submission. It is based on a misunderstanding of the evidence.

57. The authority was granted at 3:40pm on 24 March 2017. At 7:16pm that day the UCO made contact with Mr Taleb through the Telegram app on their respective mobile ‘phones.

58. The defence submission is that an inference can be drawn that the operation must have started before the authority was granted because this kind of contact was not to occur until Phase 3 of the operation as set out in the Operational Plan. [61] Phase 3 was: [62]

It is anticipated the UCO/s will attempt to contact Moudasser TALEB and/or his associates to discuss the nature of the proposed terrorist related activities.

61. MFI-VD19 (Second defence submissions p 3) and Ex VD7 Vol 1, Tab 1.

62. Ex VD7 Vol 1, Tab 1, p 8.

59. However, Phase 1 of that plan was: [63]

It is proposed NSW Police Undercover Operative/s (UCO/s) will engage with Moudasser TALEB online using messaging applications and/or chat groups.

63. Ex VD7 Vol 1, Tab 1.

60. That is what the UCO did. He did it about 3 ½ hours after the authority was granted. It is clear that there had been some earlier communication between Mr Taleb and somebody else because a certain code was used. For example, the UCO said he was from the “pest control service” which seemed to be by way of introduction. It is no secret that there was an earlier (“non-evidentiary”) phase of the investigation that was authorised by an earlier cross-border controlled operation authority. [64] None – or very few – of the details of that earlier investigation are in evidence. The fact that the conversation (or “chat”), at least inferentially, escalated quite quickly does not give rise to an inference that Phases 1 and/or 2 had been carried out before the authority was granted.

The validity and scope of a cross-border controlled operation authority under the LECO Act when police are investigating a Commonwealth offence and the operation is wholly within the borders of NSW

64. See Ex VDK, pp 45-66.

61. The central questions on the voir dire concern the extent to which a cross-border controlled operations authority under the LECO Act can authorise the investigation of a Commonwealth offence and whether an authority so described necessarily involves an investigation which actually crosses a border. The issues go to the heart of the submissions concerning the validity of the authority CB CO 17/097, indeed the statutory integrity of the whole investigation, and are most conveniently considered together. Because of the complexity of the legislative scheme, and the ambiguity and (if the Prosecutor’s construction is accepted) misuse of the phrase “cross-border”, they are difficult to apply to the facts of this case. The difficulty is highlighted by the “typographical” error that resulted in the authority purporting to authorise activities in Victoria when there was never any intention for action to be taken outside the borders of New South Wales.

The history and terms of the legislation

62. The LECO Act was one of a number of enactments introduced after the High Court’s decision in Ridgeway v The Queen. [65] Ridgeway decided that there was no substantive defence of entrapment recognised in Australian law. However, where evidence is obtained as a result of criminal conduct on the part of police investigators – in particular, where police officers incite, encourage or facilitate the commission of the offence – such evidence might be excluded in the exercise of discretion. The common law discretion then under consideration (sometimes referred to as the Bunning v Cross discretion)[66] has been superseded by s 138 of the Evidence Act.

    65. Ridgeway v The Queen (1995) 184 CLR 19.

    66. See Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22.

63. While the NSW parliament passed the LECO Act, the Commonwealth introduced “Part 1AB – Controlled Operations” to the Crimes Act 1914 (Cth). Other legislation came into force in other states.

64. All of this legislation is designed to protect law enforcement officers from criminal liability when taking part in sanctioned investigations. It also ensures that evidence gathered in such investigations, when authorised by authorities validly issued under the various statutes, is not subject to discretionary exclusion on the grounds that it was improperly or unlawfully obtained. While there are definitions in the various statutes, speaking generally a “controlled operation” is an investigation or police operation where investigators encourage, incite or assist a target to commit a criminal offence or facilitate the commission of the offence. Such conduct would ordinarily constitute a crime. The legislation allows such conduct to be sanctioned (generally in advance) to ensure the evidence so obtained is not tainted by illegality and the officers involved are not subject to punishment.

65. The legislation provides limits, guidelines and parameters over these controlled operations. Section 7 of the LECO Act sets out a number of things that are “not to be authorised”. One of these is that the conduct cannot be authorised if it is “likely to seriously endanger the health or safety of” the participants or any other person: s 7(1)(b). This prohibition was considered in Gedeon v NSW Crime Commission. [67] In that case, a controlled operation authority purported to sanction the uncontrolled distribution of a large quantity of cocaine that had come into the possession of the NSW Crime Commission. The High Court held that the authority was invalid because it was not open to the Commissioner to form the view required by s 7(1)(b).

    67. Gedeon v NSW Crime Commission (2008) 236 CLR 120; [2008] HCA 43.

66. The LECO Act is designed, at least primarily, to sanction certain controlled operations conducted by NSW law enforcement officers when investigating NSW offences. Part 2 of the Act concerns what the Prosecutor referred to in argument as “garden variety” controlled operations – that is, operations where NSW Police are investigating strictly NSW offences and there is no prospect either that other jurisdictions will be involved or the investigation will occur outside NSW. Part 3A relates to “cross-border controlled operations” and allows the NSW Police Commissioner or their delegate to issue a “cross-border controlled operation” authority.

67. Before an authority under part 3A can be granted, there must be an investigation into a “relevant offence”. [68] Relevant offence is defined in s 20B(1) as:

(a) an offence against the law of this jurisdiction that carries a maximum penalty of imprisonment for 3 years or more, or

(b) any other offence against the law of this jurisdiction that is prescribed by the regulations.

68. Law Enforcement (Controlled Operations) Act 1997 (NSW), ss 20C(1)(c) and 20D(2)(a).

68. Section 3 of the LECO Act provides that “this jurisdiction means New South Wales.”

69. A cross-border controlled operation is defined in s 3 of the LECO Act as:

cross-border controlled operation means a controlled operation that is, will be, or is likely to be, conducted in this jurisdiction and in one or more participating jurisdictions.

70. Section 3 also provides that a ‘participating jurisdiction’ means “a jurisdiction in which a corresponding law is in force” and that ‘corresponding law’ means “a law of the Commonwealth, or of another State or Territory, referred to in Schedule 1.” The prosecution relies on this sequence of definitions to submit that a cross-border controlled operation may arise where the operation engages the laws of two jurisdictions even though the operation will be conducted (geographically) entirely within New South Wales. [69]

    69. This sentence was added in revising the judgment.

71. Sub-sections 3(2) and 3(3) provide:

(2) For the purposes of this Act, a cross-border controlled operation is taken to be conducted in this jurisdiction (whether or not it is also conducted in another jurisdiction) if a participant in the operation is a law enforcement officer of this jurisdiction.

Note : Subsection (2) is intended to cover the situation where an officer of this jurisdiction is conducting an operation in another jurisdiction for the purposes of obtaining evidence of an offence in this jurisdiction (for example, a NSW officer is investigating a conspiracy to import drugs into NSW from Victoria, and the operation is to be conducted wholly in Victoria).

(3) Notes included in this Act do not form part of this Act

72. On one reading, probably the most natural reading, Part 3A is concerned with investigations into NSW offences where part of the investigation may take place outside of NSW. That is, the Part is designed to apply to an investigation that crosses the NSW border into the territory of another state. That is the import of the note to sub-s 3(2) (albeit that the note does not form part of the Act). It is also the natural reading of the word “in” in the definition of cross-border operation: an operation to be “conducted in this jurisdiction and in one or more participating jurisdictions”. The present investigation did not, and was never going to, cross a geographical border.

73. On the other hand, the definition of “corresponding law” includes a law of the Commonwealth and this may suggest that a cross-border operation includes an operation which is cross-jurisdictional even though no geographical border is to be crossed.

74. It was open to the NSW Police to apply for a controlled operation authority under Part 1AB of the Crimes Act 1914 (Cth). (For present purposes, I will disregard the distinction between a controlled operation and a major controlled operation: see s 15GD.) Section 15GH allows an “Australian law enforcement officer of a law enforcement agency” to apply for an authority. Section 15GC defines “law enforcement agency” to include “the police force of a State or Territory.” Part 1AB specifically encompasses operations that involve an investigation into offences against both the Commonwealth and a State (where there is a federal aspect): see 15GD(1)(b) and s 15GE.

75. On a review of both statutes, the more appropriate authority would have been one obtained under Part 1AB of the Crimes Act 1914. There can be little doubt that a controlled operation authority under the Commonwealth legislation is available to NSW police officers and that such authorities can cover a situation where the investigation is into offences against both Commonwealth and NSW law. For reasons that are unexplained, a Commonwealth authority was in fact ultimately obtained on 20 April 2017.

76. However, the fact that the Commonwealth act would apply, does not mean the NSW authority is invalid. It is not necessary to obtain authorities under both legislative schemes. This was made clear in Gedeon when a similar argument was made. The High Court said at [41]:

However, it does not follow that an authority given under the LECO Act will be beyond the power of the Commissioner or other "chief executive officer" because there has been a failure to obtain concurrently a certificate under s 15M of the Crimes Act where federal criminal law may also be engaged by commission of the proposed "controlled activity". There is a need for approval under both statutory regimes if full protection for those involved is to be obtained. Further, the absence of a necessary approval under either scheme will be sufficient to raise at trial the operation of s 138 of the Evidence Act. But, s 138 apart, the State authority, within the scope of the State law and for its purposes (should that issue arise), will be effective without a certificate under s 15M of the Crimes Act.

162. Because the challenge was not initially based around his expertise, Mr Sutherland’s qualifications to provide these opinions were not led in his evidence in chief. There was no challenge to his expertise in cross-examination on the voir dire. However, in submission it was put that that “he was no more expert than any other user of Facebook.”

163. The other objection was similar to the objection taken to material on the telephone. That is, it was put that there was no evidence that Mr Taleb himself sought out this material, downloaded it, or approved of it.

164. On the final day of argument, the Prosecutor narrowed the scope of this Facebook evidence, indicating that it was only proposed to tender Annexures A, B, C, D, G and I. Annexures A, B, C, D and G were tendered largely to show the photographs and account names that go to prove that this was Mr Taleb’s Facebook account. This was because the same photographs were found on his telephone and the Facebook user name was the same as the one he used on the Telegram app. Some of the photographs also had relevance to his alleged interest in radical Islam and will be subject of evidence to be given by Dr Shanahan. Annexure I was a screen grab showing a series of Facebook pages that the user might choose to “like”.

165. For the same reasons as those provided in allowing the evidence of material located on the accused’s telephone, and based on the Court of Criminal Appeal decision in Elomar, I will allow the tender the Facebook material identified by the Prosecutor on the final day of argument.

166. As to Annexure I (the “like” pages), I allow that evidence provisionally on the basis that the Prosecutor undertakes to call evidence similar to that given in relation to Annexure K (the “follow” pages). That is, there will be evidence that the pages depicted in Annexure I are pages that the accused (assuming he was the user) had previously “liked”.

167. As to any expert opinions, I allow the evidence provisionally on the basis that the prosecution will establish Mr Sutherland’s expertise.

Rulings

172. I make the following rulings:

1. The evidence obtained under controlled operation CB CO 17/097, including the evidence of the UCO and recordings of his conversations and Telegram chats with the accused, is admissible.

2. The evidence obtained under the Authority for a Commonwealth Major Controlled Operation AFP 16-17/115 is admissible.

3. The electronically recorded interview with the accused on 15 June 2017 is inadmissible.

4. The telephone intercepts of telephone service [REDACTED] are admissible.

5. As to the material extracted from the accused’s telephone:

1. The police and expert witnesses are permitted to give evidence of the number and nature of the items found on, or extracted from, the accused’s mobile telephone.

2. The prosecution is permitted to lead the images and videos annexed to the prosecution’s submissions (MFI-VD21) with the exception of images and videos of beheadings or other executions. No part of any video depicting an execution or video is to be played to the jury.

3. The police and expert witnesses are permitted to describe briefly and give evidence about the images and videos depicting beheadings and executions.

6. The video of detectives examining the accused’s mobile telephone (Ex VDQ) is inadmissible.

7. The evidence of the Facebook page alleged to be controlled by the accused is admissible subject to:

1. The prosecution having limited the tender to the matters identified on (Transcript 285-286).

2. The prosecution establishing the expertise of the witness Justin Sutherland.

3. The prosecution establishing that the pages shown in Ex I are pages “liked” by the operator of the Facebook account.

**********

Endnotes

Decision last updated: 12 April 2019