R v We (No.10)

[2020] NSWSC 41

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v WE (No.10) [2020] NSWSC 41
Hearing dates:	3, 4 and 5 February 2020
Date of orders:	11 February 2020
Decision date:	11 February 2020
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	Evidence excluded
Catchwords:	CRIMINAL LAW – Evidence – Accused charged with doing acts in preparation for a terrorist act or acts – Evidence of religious publications found in his possession following the alleged commission of the offence – Whether evidence relevant – Whether the probative value of the evidence outweighed by the danger of unfair prejudice – Whether expert evidence in relation to the publications admissible - Evidence excluded
Legislation Cited:	Criminal Code 1995 (Cth) Evidence Act 1995 (NSW)
Cases Cited:	Nye v NSW [2002] NSWSC 1270 R v Privett [2001] NSWCCA 518 R v Vinayagamoorthy and ors (2008) 238 FLR 117; [2008] VSC 599 Zaknic Pty v Svelte Corporation Pty Limited (1995) 61 FCR 171
Category:	Procedural and other rulings
Parties:	Regina – Crown WE – Accused
Representation:	Counsel: P McGuire SC and B Anniwell – Crown M Finnane QC – Accused   Solicitors: Director of Public Prosecutions (Cth) – Crown Zali Burrows – Accused
File Number(s):	2016/305103
Publication restriction:	Nil

Judgment

INTRODUCTION

1. WE (the accused) has pleaded not guilty to an indictment alleging an offence contrary to s 101.6(1) of the Criminal Code1995 (Cth) in the following terms:

Between about 6 October 2016 and 12 October 2016 at Sydney in the State of New South Wales did jointly commit an offence with (HG), namely acts in preparation for, or planning, a terrorist act (or act).

2. The accused’s trial is listed to commence on 12 February 2020.

3. By notice of motion filed on 11 October 2019, the accused sought a number of orders excluding parts of the evidence upon which the Crown proposes to rely. The notice of motion originally contained 20 prayers for relief. A number of them were abandoned prior to the commencement of the hearing of a voir dire. A number of others were abandoned at the conclusion of the evidence.

4. The end result is that only one issue remains, which is articulated in paragraph 18 of the motion in the following terms:

An order that the report of Dr Rodger Shanahan regarding books seized (sic) 17 April 2019 from Frank Baxter Juvenile Justice Centre be declared inadmissible.

5. The entirety of the evidentiary material relating to that issue is contained in Exh A which was tendered by the Crown by consent. I have referred to aspects of that evidence below.

THE CROWN CASE

6. Exhibit A includes the Crown case statement. Whilst I do not propose to recount that statement in its entirety, it is necessary for me to set out parts of it in order to put the present issue in its proper context. The statement includes the following:

Introduction

1. The accused is charged that between about 6 October 2016 and 12 October 2016, he did jointly commit an offence with HG in that they did acts in preparation for, or planning, a terrorist act (or acts), contrary to sections 101.6(1) and 11.2A of the Criminal Code 1995 (Cth). The objective of the terrorist act was to commit politically, religiously or ideologically-motivated attacks upon one or more law enforcement officers or other members of the public in Australia using one or more bladed weapons. It is likely the intended terrorist act was to occur imminently.

Ideology

2. At the relevant time, WE was a sympathiser of the terrorist organisation Islamic State. Islamic State propaganda has called for attacks on law enforcement officers and members of the public in Australia and other Western countries.

3. Before and during the period alleged in the indictment, WE demonstrated support for violent Islamist ideologies, and an intention to commit or participate in politically, religiously or ideologically-motivated acts of violence.

4. Between 2014 and 2016, WE engaged in the following activities:

• At times around June through to September 2014, WE (along with HG) refused to stand at school assemblies when the Australian national anthem was being played. When asked about his reasons for not standing he initially stated he didn’t stand because HG wasn’t standing, then when probed deeper about it, he stated that it was his belief he would only stand for Allah and that his religion told him not to stand for anyone else. He advised he was following the clerics online and through researching the religion himself in books and on the internet.

• On 22 November 2015, WE departed with his family from Australia to travel to Egypt. Whilst overseas, in late December 2015, WE was detained by Egyptian authorities in the northern Sinai region for attempting to travel to a region dominated by Ansar Beyt Almuqdis. He was captured and detained by Egyptian authorities in El-Arish and then deported back to Australia;

• On 10 December 2015 (and at various other times throughout 2014 and 2015), the following issues of Dabiq magazine was searched for, accessed or downloaded on the Huawei mobile phone used by WE:

-   Dabiq issue 1: The Khalifah;

-   Dabiq issue 2: The Flood;

-   Dabiq issue 7: From Hypocrisy to Apostasy;

-   Dabiq issue 8: Shari’ah Alone will rule Africa;

-   Dabiq issue 9: They Plot and Allah Plots;

-   Dabiq issue 10: The Law of Allah or the Laws of Men;

-   Dabiq issue 11: From the battle of Al-Ahzab to the war of coalitions;

-   Dabiq Issue 12: Just Terror.

5. Dabiq magazine is a publication by the Islamic State that promotes the notion of a duty imposed upon Muslims by God to engage in martyrdom operations and to kill people who are unbelievers as well as promoting the brotherhood of the Islamic State. Dabiq issue 1 promotes travel to various lands that support jihad, including the ‘Sinai Peninsula’. Dabiq issue 2 promotes pledges of allegiance to the Khalifah. Dabiq issue 7 makes numerous references to the Sinai region as well as various militant and martyrdom operations in the Sinai at various points, Islamic State’s expansion into the Sinai region and a reference to major operations conducted in El-Arish. Dabiq issue 8 makes reference to the Sinai Peninsula as well as Ansar Bayt al-Madqis, being an organisation that WE made reference to during an interview with ASIO in April 2016. Dabiq issue number 12 provides a list of 10 must watch videos with the number 1 must watch video being ‘Harvest of the Soldiers’, being a video WE subsequently downloaded and makes references to Wilayat Sayna, the Sinai region, Ansar Bayt al Maqdis, and Sinai attacks. This Dabiq issue, as well as issue 2, includes the quote ‘And whoever dies without having a bay’ah binding him, dies a death of jahiliyyah’ which is very similar wording to that of the handwritten note located in WE’s backpack upon his arrest.

6. Between 26 November 2015 to 26 December 2015, while in Egypt the Huawei mobile phone used by WE, was used for the following:

• Searched for ‘Dabiq’ magazine on 10 separate occasions;

• Searched for ‘The Harvest of the Soldiers’ on 17 separate occasions;

• Google searched the following terms: ‘Sinai’; ‘islamix state videos’; ‘is joining the army kufr’; ‘sinai isis’; ‘how to download a video from jihadology’; ‘islamic state leader’; ‘islamic state leader omar al baghdadi’;

• Saved an image of the Islamic State flag;

• Visited website: ‘ISIS news, Videos, & Propaganda [WARNING: GRAPHIC] Heavy.com;

• Visited website: Visited website: - Top 10 videos/ The Islamic State

• Visited website: Fighting for the cause of allah (jihaad);

• Visited website: The complete meaning of Jihad in the way of Allah/ Faith in Allah [Arabic writing];

• Visited website: When is it waajib for a person to ask his parents permission to go to jihad?;

• Visited website: Encouraging believers to fight in jihad; the good news that a few muslims can overcome a Superior En’;

• Saved the document: Misconceptions of jihad.

7. During the same period, the Huawei mobile phone used by WE was used to view the following videos on YouTube:

• ISIS Responsible: Who were the Paris attackers?

• US Airstrike filmed by ISIS fighter in Iraq – ISIS Artillery Cannon Striked;

• The Fight Against ISIS;

• Face to Face with Islamic State – BBC News ISIS control;

• ISIS training video revealed

• ISIS WARNING: Horrifying map of target countries it wants to dominate in Europe by 2020;

• This is what happened between the State of Sinai and the Egyptian army at Arish and Sheikh Zuweid in details

• Sinai who is sowing the thorns

• The Black box Sinai the backyard

• Ahadha Deen Al Islam Ya Abu Adnan;

• Syria War 2015: Heavy Clashes as Syrian Rebels Storm IS base in Quneitra;

• Three friends, One Jihadi/ The New York Times;

• Jihadi John’s journey from schoolboy to executioner;

• Jihadi John apologises to his family - but for beheading hostages

• Digitally masking Jihadi John

• IS Defector says: ‘I saw Jihadi John kill Hostage Kenji Goto;

• Flirting with ISIS: How the Islamic State Recruits/ The New York Times;

• Girls choose ISIS over London/ The New York Times;

• Go Inside an ISIS security building;

• Why did ISIS burn pilot instead of beheading him?

• Freed ISIS hostage says ‘they are right’

• Former Islamic State group sex slave Jinan narrates her dreadful story on FRANCE24;

• Syria: Russian Warships hit IS-group and Al-Nusra Front Targets, Moscow says;

• Paris attacks: ‘You killed our brothers in Syria’, the terrorist shouted whilst shooting;

• What really happened during the Bin Laden raid?;

• Heres a good 3min 9/11 clip worth seeing!;

• The man who saw it coming;

• The spread of the Caliphate: The Islamic State (Part 1);

• Brutal terrorist video borrows techniques from Hollywood

• Osama bin Laden talks about the 9/11 attacks;

• Molenbeek: the focus of the search for jihadist in Brussels;

• Al Malhama [Anwar Al Awlaki] ;

• Shocking video- Radical Islams Children;

• Anwar Al Awlaki – One of the bravest Sahabah;

• Purpose of fighting – Anwar Al Awlaki;

• Syrian Faction shows teachers “Islamic State” a lesson in dealing with prisoners;

• Imam Anwar Al-Awlaki – Message for the Youth;

• Which Jama’a To Join – By Imam Anwar Al-Awlaki (Part 1);

• Islamic State nasheed Balighu Mina Abe Bekr Salama;

• Collection of Beautiful ISIS Nasheed part 1/ Ajnad;

• WATCH: New ISIS spokesman – An Australian Teen – Issues Warning;

• The Best Jihadi Anasheed [Arabic writing] ; Jihad Nasheed; Syrian Jihad Nasheed – Qalu Innaha; Syrian Jihad Nasheed – Qalu Innaha;

• Lana Lmorhafato/ Amazing Caliphate nasheed [Arabic writing] (English subtitles);

• ISIS nasheed - pounced or die

• The Islamic State (Full length);

• Wonderful Nasheed Sheikh Usama bin Laden;

• Nasheed Oh Sheykh al Baghdadi Oh mon emir fait trembler la mecreance

• Emirul Muminin Ebubekir Al-Baghdadi (Nasheed NEW 2014);

• Islamic State Nasheed Balighu Mina Abe Bekr Salama;

• Gaza Ahrari [Arabic writing] Muhammad al Murqit

• Nasheed Oh Sheyk al Baghdadi Oh mon emir fait trembler la mecre

• Emirul Muminin Ebubekir Al-Baghdadi (Nasheed NEW 2014)

• Sabran Sabran Ya Baghdad

• Dawlatna Mansura Nasheed

From about 19 July 2016, the ACER computer and Samsung telephone used by WE was used for the following:

• Watch the following YouTube videos:

-   Terror attack in Nice, showing the truck driving down the road where pedestrians were running away from it and two police officers are firing shots at the river;

-   Is all life equal (a clip that debates whether the life of a human is greater than the life of an animal). There is mock murder scene in the video where a child is stabbed to death in the throat at the zoo;

-   The Caliph – Part 1: Foundation;

-   Soldier of Allah (about the minor signs leading up to the day of Judgment);

-   Documentary where Richard Dawkins interviews a Muslim Fundamentalist who discussed how they want the kuffar off the lands of the Prophet Mohammed and they want Islam to take over the rest of the world, which they will;

-   Clip of dialogue between two martial arts experts where they discuss how confident people are in getting into fights when they have no idea if the other person is trained in martial arts or not;

-   Clip of NSW Police Force Transport Command public service announcement where the spokesperson outlines the roles, responsibilities of the Command, in particular a reference to keep a vigilant eye on the transport network and to reduce the threat of a terrorist activity;

-   Clip of the Channel 10 news story about the violent protest in Sydney CBD in response to the 14 minutes video clip titled the ‘Innocence of Muslims’;

-   Clip asking ‘Can we listen to Anwar Al-Awlaki and take knowledge from him?’ The speaker argues listening to Anwar Al-Awlaki speeches before his imprisonment and before he was radicalised is ok, after that his speeches are poisonous;

-   Clip titled ‘How to kill literally any human in 3 seconds (Man murdered by mental grandma);

-   Clip titled’ ISIS/ISIL/IS/Daesh Explained’;

-   Clip titled ‘Why do people become Islamic Extremists?’

-   Clip titled ‘Why do Muslims Hate all Non Muslims;

-   Clip titled ‘Short Stories: Prophet (saw) y Anwar Al Awlaki’;

-   Clip titled ‘Attacked by ISIS on the road to Mosul’;

-   Clip titled ‘Pinned down by the Islamic State: The Road to Mosul (Part 1)’;

-   Clip titled ‘The Jihadist Next Door’;

-   Clip titled ‘Rise and fall of Australia’s jihadi recruitment network’;

-   Clip titled ‘Ugly Muslim Face of Islam in Sydney, Australia’;

-   Clip titled ‘Reclaim Australia – SJWs & Islam vs free speech’;

-   Clip titled ‘the Most Disturbing Video on the Islamic Invasion of Europe You’ll Ever See’;

-   Clip titled ‘A Message to the Scholars – Imam Anwar Al Awlaki’;

-   Clip titled ‘Qualities of the Right Group to Join’;

-   Clip titled ‘The Great Fitnahs – Times of Trials and Tribulation’;

-   Clip titled ‘The Highest and Lowest Status in Jannah (Paradise)’;

-   Clip titled ‘How many Gates are there for Jannah (Paradise)’;

-   Clip titled ‘Ayat Al Kursi: Anwar Al Awlaki’;

-   Clip titled ‘wife gets tazed’;

-   Clip titled ‘Jail Food vs School Food’;

-   Clip titled ‘Inmates: How to spice up ‘horrible’ jail food’;

-   Clip titled ‘Can you defend yourself? [Social Experiment]’;

-   Clip titled ‘Can you defend yourself against a knife attack? [social experiment]’;

-   Clip titled ‘I would not be able to defend myself [Social experiment]’;

-   Clip titled ‘Knife defence social experiment’;

-   Clip titled ’20 seconds to attack me’ knife defense social experiment’;

-   Clip titled ‘NSW Police to take over security of public transport’;

-   Clip titled ‘Wretched: Muslim women confront a Christian’;

-   Clip titled ‘NZ Muslim woman ‘regularly’ told to remove veils’;

-   Clip titled ‘Muslim women should dress this way (Or that way)’;

-   Clip titled ‘anwar al awlkai’;

-   Clip titled ‘Anti US Protests by Muslims Turns Violent in Sydney Streets of Australia’;

-   Clip titled ‘Muslims try to murder a man for handing out anti-Islam Pamphlets’;

-   Clip titled ‘Four wog teenagers get arrested in Broadmeadows, Melbourne Australia after assaulting police’;

• Internet search of the phrase “How to reset Samsung Galaxy s5 to factory settings”.

• Saved the following images to his devices:

- A ‘Keep Calm’ meme depicting a person holding a bloodied chainsaw with the caption ‘No’;

- A hand holding knife with the words ‘The Psychology of being Human’;

- An image file from a Digital Tawheed stating ‘Thus if anyone commit aggression against you, Attack him as he has attacked you’. This was saved within a minute of HG sending the image to [WE];

- An image of an elderly man with a beard with the caption ‘But when a Muslim does the same, he is labelled extremist?’ and ‘I am proud to be a Muslim.’

•   Accessed webpages relating to the following:

- Nine news article regarding the ‘Alleged Minto terror attack captured on security cameras’

- A current affair news article titled ‘Terror Money’;

- Sydney Morning Herald news Article titled ‘ISIS losing ground’;

- Sydney Morning Herald news article titled ‘Lindt siege police response in question’;

8.   The Samsung Laptop (PS3439840-002) used by WE contained a WORD document which had the following text:

Asalamu Alaykum.

You see brother you will hear that ISIS rapes women and "Beheads" christian children and buries Yazidies alive and kills innocent muslims and that we are "Khwarij" or Takfiri ,Wahabi etc etc. But the reality is that these are basless claims as there is no proof to any of this. In fact it is propaganda laid as a trap by the enemy. You are my brother and Im 100% sure the kuffar would not ally themselves with "moderate" muslims as they are doing today because they care for their welfare. NO, Allah says that the kuffar will not be pleased with you until you leave your religion.

As for killing innocent muslims this is not true. The Description of the Khwarij does not fit Islamic State as the khwarij make takfir on muslims who commit major sins and Islamic state does not do this! Rather Islamic state is harsh on the disbeleivers but soft towards the believers and the muslims who are killed are from groups such as FSA and Ahrar ashams and they are only soldiers NOT women and children.

Groups like FSA or Ahrar Ashams are being paid openly by the U.S and are being supplied by the Salool of Arabia and they indeed attacked Islamic State first! Something many people do not know, They also joined with Jabhat al Nusra who betrayed ISIS in order to make money from oil deposits in Der Ezzoir.

Seek the truth brother! Knowledge is your best friend and shaytaans worst enemy.

Chronology

9.   WE and HG were students together in year 9 at East Hills Boys Technology High School during the 2014 school year.

10.   WE continued to be enrolled as a high school student prior to his arrest, however his attendance was sporadic. Shortly prior to his arrest on 12 October 2016, WE had enrolled at South Strathfield High School on 8 September 2016 but had already been absent for 5 school days.

2014 to 2016

11.   Between June and September 2014, WE together with HG refused to stand at school assembly when the Australian national anthem was played. When spoken to concerning his unwillingness to stand, HG stated that “he only stands for God” and that he does not respect the Australian Government as “this country sends troops to Afghanistan to kill our men and rape our women.” Within the following weeks WE was spoken to about his refusal to stand for the national Anthem and he said that he had looked it up online and that he did not stand for anybody except Allah.

12.   On 22 November 2015, WE departed Australia with his family to travel to Egypt.

13.   Between 26 November 2015 to 26 December 2015, the Huawei mobile phone used by WE, conducted Googles searches for ‘Dabiq’ on 10 separate occasions, searched for ‘The Harvest of the Soldiers’ on 17 separate occasions, and ‘Sinai ISIS’. WE also visited the website ‘ being a website that hosts extremist material including videos produced by Islamic State.

14.   On or about 17 December 2015, WE absconded from his family and travelled to the town of El-Arish in the northern Sinai region. WE was detained by Egyptian authorities in the town of El-Arish. At the time, WE had a limited number of possessions. The Crown alleges WE had travelled to that area, with the intention of then joining Islamist militants Ansar Bayt al-Maqdis, an Islamic State affiliate, who were engaged in terrorist acts in the region. The Northern Sinai region is also an area of conflict where certain terrorist attacks had occurred.

15.   Upon his return to Australia, on 19 April 2016 WE participated in a security assessment interview with ASIO, to which his father was also present. The interview was in relation to whether it was in the interests of national security for WE to hold an Australian Passport. During the interview WE advised the following:

-   He doesn’t know the exact date he left Tanta for El-Arish but it was in the morning sometime;

-   He caught a bus that went to Ismailia, which is a town on the border of the Sinai Peninsula to the west of the Suez Canal. He then took a bus from Ismailia to El-Arish, arriving in the afternoon;

-   Once in El-Arish he looked around at some shops, had some dinner and went to the beach;

-   He had with him around 400 Egyptian pounds (AUD$80) and an Arabic toothbrush, but no identification;

-   He intended to travel back to Tanta that night but when he asked about a bus ticket he was told the bigger bus companies didn’t have tickets until the following day, and the smaller private bus companies would not take anyone at night without identification;

-   As he was unable to travel back to Tanta that night, he looked around at some shops or markets and was then approached by someone asking him for identification. When he was unable to produce identification he was taken into custody and later questioned;

-   He said he did not support Islamic State, the caliphate and thought Islamic State was just using Islam for their own purposes, for violence. He did not support violence to defend Islam stating ‘In Australia, there is freedom of speech’ and ‘There’s no reason to resort to violence.’

-   He confirmed he had seen some beheadings online but provided minimal detail about how he came across any propaganda;

-   He confirmed he had read Dabiq as well as articles regarding Syria and Dabiq; and

-   When asked about his associates in Australia he failed to mention [HG].

16.   During the interview, when providing information about his travel to El-Arish he needed to be prompted for responses or further detail, and would often provide minimal detail.

May 2016 to September 2016

…

31. On 5 October 2016, WE and HG exchanged several text messages and calls, planning to meet in Bankstown.

32. On 6 October 2016, several calls were exchanged between WE and HG. The two then met and travelled together by public transport to the Bankstown Gun Shop.

33. At about 5.38 pm, WE attended Bankstown Gun Shop in the company of HG. They looked around the store looking at various knives, including a machete that was hanging on a shelf. HG then approached the counter and advised they were going ‘pig hunting and were looking to buy pig hunting knives’. The cashier, Nikolas BALLAS, asked if they were over the age of 16, and asked how much they were willing to spend. HG said he was looking for something cheap and not looking to spend too much. HG pointed to a Black MTech America knife. HG and WE then examined the knife and HG stated “that’s perfect”. HG purchased two MTech hunting knives for $40.00 each as well as a knife sharpener. WE and HG then exited the shop in possession of those knives. The whereabouts of the two knives purchased from Bankstown Gun Shop on 6 October 2016 is not known to police and they have never been located.

34. At about 10:13 pm, WE watched a YouTube clip of two martial arts experts discussing how confident people get into fights when they have no idea if the other person is trained in martial arts or not.

35. Between about 11.03 pm and 11.19 pm, WE and HG exchanged further texts where HG asked WE to loan him money to buy some sneakers.

36. On 7 October 2016, WE and HG exchanged several calls and texts throughout the day.

37. At about 12:45pm HG participated in a WhatsApp chat session with WE. HG is alleged to be the owner of the chat session, identified as ‘Abu Khubaub’ [email protected] . Abu Khubaib sent the following quote:

‘The Order to fight until there is no more fitnah

Allah then commanded fighting the disbelievers when He said:

[Foreign]

(…until there is not more Fitnah) meaning, Shirk. This is the opinion of Ibn ‘Abbas, Abu Al-Aliyah, Mujahid, Al-Hassan, Qatadah, Ar-Rabi’, Muqatil bin Hayyan, As-Suddi and Zayd bin Aslam

Allah’s statement:

[Foreign]

(…and the religion (all and every kind of worship) is for Allah (Alone).) means, ‘So that the religion of Allah becomes dominant above all other religions.’ It is reported in the Two Sahihs that Abu Musa Al-Ash’ ari said: “The Prophet was asked, ‘O Allah’s Messenger! A man fights out of bravery, and another fights to show off, which of them fights in the cause of Allah’ The Prophet said:

[Foreign]

(He who fights so that Allah’s Word is superior, then he fights in Allah’s cause.) In addition, it is reported in the Two Sahihs:

[Foreign]

(I have been ordered (by Allah) to fight the people until they proclaim, ‘None has the right to be worshipped but Allah’. Whoever said it, then he will save his life and the property from me, except for cases of the law, and their account will be with Allah.)

Allah’s statement:

[Foreign]

(But if they cease, let there be no transgression except against the wrongdoers.) indicates that, ‘If they stop their Shirk and fighting the believers, then cease warfare against them. Whoever fights them afterwards will be committing an injustice. Verily aggression can only be started against the unjust.’ This is the meaning of Mujahid’s statement that only combatants should be fought. Or, the meaning of the Ayah indicates that, ‘If they abandon their injustice, which is Shirk in this case, then do not start aggression against them afterwards.’ The aggression here means retaliating and fighting them, just as Allah said:

[Foreign]

(Then whoever transgresses against you, you transgress likewise against him.) (2:194)

Similarly, Allah said:

[Foreign]

(The recompense for an evil is an evil like thereof.) (42:40), and:

[Foreign]

(And if you punish them, then punish them with the like of that with which you were afflicted.) (16:126)

‘Ikrimah and Qatadah stated, “The unjust person is he who refuses to proclaim, ‘There is no God worthy of worship except Allah’.”

Under Allah’s statement:

[Foreign]

(And fight them until there is no more Fitnah) Al-Bukhari recorded that Nafi said that two men came to Ibn ‘Umar during the conflict of Ibn Az-Zubayr and said to him, “The people have fallen into shortcomings and you are the son of ‘Umar and the Prophet’s Companion. Hence, what prevents you from going out” He said, “What prevents me is that Allah has for bidden shedding the blood of my (Muslim) brother.” They said, “Did not Allah say:

[Foreign]

(And fight them until there is no more Fitnah (disbelief and worshipping of others along with Allah))” He said, “We did fight until there was no more Fitnah and the religion became for Allah Alone. You want to fight until there is Fitnah and the religion becomes for other than Allah!”

‘Uthman bin Salih added that a man came to Ibn ‘Umar and asked him, “O Abu ‘Abdur-Rahman! What made you perform Hajj one year and ‘Umrah another year and abandon Jihad in the cause of Allah, although you know how much He has encouraged performing it” he said, “O my nephew! Islam is built on five (pillars): believing in Allah and his Messenger, the five daily prayers, fasting Ramadan, paying the Zakah and performing Hajj (pilgrimage) to the House.” They said: “O Abu ‘Abdur-Rahman! Did you not hear what Allah said in His Book:

[Foreign]

(And if two parties (or groups) among the believers fall to fighting, then make peae between them both. But if one of them outrages against the other, then fight you (all) against the one that which outrages till it complies with the command of Allah.) (49:9) and:

[Foreign]

(And fight them until there is no more Fitnah (disbelief))

He said, “That we did during the time of Allah’s Messenger when Islam was still weak and (the Muslim) man used to face trials in his religion, such as killing or torture. When Islam became stronger (and apparent), there was no more Fitnah. “He asked, “What do you say about ‘Ali and ‘Uthman” He said, “As for ‘Uthman, Allah has forgiven him. However, you hated the fact that Allah had forgiven him! As for ‘Ali, he is the cousin of Allah’s Messenger and his son-in-law.” He then pointed with his hand, saying “This is where his house is located (meaning, ‘so close to the Prophet’s house ust as ‘Ali was so close to the Prophet himself’).”

[Foreign]

(194. The sacred month is for the sacred month, and for the prohibited things, there is the Law of equality (Qisas). Then whoever transgresses against you, you transgress likewise against him. And fear Allah, and know that Allah is with Al-Muttaqin.)

-Tafsir ibn Kathir

38. Shortly after HG sent to WE in the same WhatsApp chat session, a picture with writing ‘Thus if anyone commits aggression against you. Attack him just as he has attacked you.’ At 12:46 pm on the same date, WE saved the same image from Digital Tawheed stating ‘Thus. If Anyone Commits Aggression Against You, Attack Him Just As He has Attacked You’.

39. On 9 October 2016, WE and HG exchanged text messages early in the morning about meeting in Blacktown.

40. At about 1:34 am, the Samsung mobile phone used by WE accessed a YouTube clip of a NSW Police Force Transport Command public announcement where a spokesperson outlines the roles, responsibilities of the Command, in particular a reference to “to keep a vigilant eye on the transport network and to reduce the threat of terrorist activity”.

41. At about 12:28 pm, the Acer computer used by WE accessed a YouTube clip of a Channel 10 news story about the Violent protest in Sydney CBD in response to the 14 minutes video clip titled the ‘Innocence of Muslims’.

42. At about 8:21 pm, the Samsung mobile phone used by WE conducted a Google search for instructions on ‘how to reset Samsung Galaxy s5 to factory settings’.

43.   At about 11.02 pm, the Samsung mobile phone used by WE accessed a YouTube clip where a question is asked ‘Can we listen to Anwar al-Awlaki and take knowledge from him?’ The speaker argues listening to Anwar al-Awlaki speeches before his imprisonment and before he was radicalised is ok, after that his speeches are poisonous.

44. At about 11.25 pm, the Samsung mobile phone used by WE saved an image of elderly man with a beard, with the caption ‘But when a Muslim does the same, he is labelled extremist?’ and ‘I am proud to be a Muslim’.

45. On 10 October 2016, WE was absent from school and exchange a number of text messages with HG.

46. On 11 October 2016, at about 3.36 pm, WE spoke with HG for 41 seconds.

47. At about 4:10 pm, WE exited a bus near HG’s residence.

48. At about 4:15pm, HG, whilst in the company of WE, conducted a Google search on his Samsung mobile phone for ‘bankstown gun shop’.

49. At about 4:16 pm, HG, whilst in the company of WE, accessed the following on his Samsung mobile phone:

- an image file showing the opening hours for Bankstown Gun Shop; and

- a screenshot of an image of Google Chrome application showing ‘Clear browsing data’ options.

50. Between about 4.29 pm and about 4.36 pm, WE and HG exited HG’s residence at 19 Creswell Street, Revesby and walked on Creswell Street towards Queen Street, then returned to Creswell Street towards Paten Street.

51. At about 4.39 pm, HG, in the company of WE, Google searched ‘citizenship kufr’, ‘australian citizenship’ and ‘australian citizenship oath’.

52. At about 4.46 pm, HG, in the company of WE, accessed an image file depicting a number of children smiling and doing ‘peace signs’ with the caption ‘You don’t want us in your country…? Stop bombing ours!!!!'

53. At about 5.05 pm, HG, in the company of WE, Google searched ‘from Revesby to bankstown’ and ‘from bankstown to Revesby.’

54. At about 5:07 pm WE left the residence of HG and walked to a bus stop on Bansgrove Road, Revesby.

55. At about 5.28pm, HG sent two text messages to WE:

• “Akhi remember to be good to ur mother and to ask her to forgive u”;

• “Constantly ask her to forgive u”.

56. At 5:31 pm WE entered bus number 923 headed for Bankstown.

57. At 9.30 pm, WE accessed the web address ‘Deep.Dot.Web.’ being an article advertising SIGAINT as a darknet email service that allows you to send and receive email to avoid surveillance methods.

Events of 12 October 2016

58. On Wednesday 12 October 2016, at 6.31am and 9.29 am, WE received two calls from HG.

59. At 6:54am HG posted a video to WhatsApp chat session with Abu Mussab which described how to remove the battery of a Samsung Galaxy mobile telephone for anti-surveillance.

60. WE did not attend school. Instead, WE met with HG at HG’s residence in Revesby.

61. At about 9:32am HG, in the company of WE, accessed the following images on his Samsung Galaxy mobile phone:

• Image of a wounded child and a deceased child with the caption ‘The life of Syrian children. If they stay. If they leave.’

• Image of a young person being held on the ground with blood coming from their nose, with the caption ‘Israel, the World of Terrorism. Israel is a hotbed of Murderers’.

• Image of a man on a rearing horse holding a flag with the caption ‘Life of a Mujahid they will live to honour one Statement. Others will fall under the weight of it, but not them, their heart will beat it, their words testify to it and their hands will carry it.’

62. At about 9.56am, HG and WE leave HG’s residence, both carrying backpacks. WE’s backpack was blue in colour. They walked to and entered Max Parker Leisure and Aquatic Centre, Marco Ave Revesby.

63. Between about 10.00 am and 10.20 am, while at the Max Parker Leisure and Aquatic Centre, HG and WE sat behind the grandstand on a park bench facing each other, ate chips and were in a conversation between themselves.

64. Between about 10:25 am and 10:33 am, HG and WE exited Max Parker Leisure and Aquatic Centre and walked back to HG’s residence.

65. At about 10:36 am, HG and WE exited HG’s residence and walked to Bransgrove Road, Revesby where they waited for a bus.

66. At about 11.03 am, HG and WE caught the 8729, route 923 bus to Bankstown via Revesby. They sat at the rear left-hand corner of the bus speaking to each other. HG was wearing a camouflage hunter’s hat, black Under Armour T-shirt, brown track pants and sneakers. HG also had a desert camouflage over the shoulder bag and blue/grey camouflage backpack. WE was wearing a white t-shirt and black shorts and carrying a dark blue backpack.

67. At about 11.07 am, HG and WE travelled on bus 8729 on route 923 to Bankstown.

68. At about 11.14 am, HG and WE exited the bus at Chapel Road South, just prior to Eldridge Road, in Bankstown.

69. At about 11.15 am, HG entered the Bankstown Gun Shop, 201 Canterbury Rd, Bankstown. WE observed standing by himself on Chapel Road South, Bankstown.

70. At about 11.20 am, HG and WE attended Bankstown Gun Shop, 201 Canterbury Road, Bankstown, NSW. WE remained outside while HG entered the commercial premises. HG examined a single M9 Bayonet knife and was holding a number of rolled $50 notes. HG then asked whether the knife was a fixed blade. The attendant, Marino PARONIS, asked “Are you over 16?” and HG said “Yes”. HG said he would take it and asked for a second one for his friend that was going away with him. HG purchased two M9 Bayonet knives and a knife sharpener, paying in cash. HG received his change and exited the shop carrying a white plastic shopping bag.

71. Each knife bore a fixed blade that was approximately 20cm in length, with a sharp point, a cutting edge on one side of the blade and saw-tooth serration on the other side.

72. HG returned to where WE was waiting and gave him the change from the purchase, which WE placed into his wallet.

73. At around 11.25am, HG entered Bankstown South Newsagency and requested a plastic bag. HG held up a smaller plastic bag and said “I need a bigger bag to cover this up”. The cashier, Cindy Nguyen, said that she did not have one.

74. At around 11.28 am, HG exited Bankstown South Newsagency and met with WE who was standing on the footpath. There, WE tried to re-shuffle the items in his bag to fit in the knives, however he ended up removing a number of personal items, including school exercise books, a pencil case and a calculator bearing WE’s first name “WE” on the inside of its case and disposing of them by depositing them in a garbage bin. The two knives, and the plastic packaging, were then placed inside WE’s backpack. Police recovered from the bin the follow items: 48 page purple graph book, Spirax Kode A4 notebook line cover with writing inside, Spirax Kode A4 purple notebook, lime green pencil case containing a protractor, calculator bearing the inscription ‘WE’, pencil sharpener, eraser, glue stick and black Artline fine 0.4 pen.

75. At about 11.30am, HG and WE walked to a bus stop on Chapel Road South, Bankstown and boarded bus 2405, route 487.

76. Also at about 11.30am, JCTT were informed that HG had purchased two knives at Bankstown Gun Shop.

77. At about 11.39am, HG and WE alighted from bus 2405 at Bankstown City Plaza and walked to Bankstown musallah, 108 Adnum Lane, Bankstown.

78. At about 12.00pm, WE and HG were overheard together in the bathroom at Bankstown musalla with the door locked by two persons who resided at the mosque, Mahmoud MADAR and Khaled Hassan AHMED.

79. AHMED told the two persons to get out of the bathroom. MADAR asked them why they were in there and they answered they were doing their “Ablution” (washing before prayers). MADAR told them to get out or the door would be opened.

80. The two boys came out of the bathroom and AHMED asked what they were doing in there. WE stated that HG was teaching him how to wash his face properly before praying. They were told to do that in the laundry. HG shook AHMED’s hand and said “Sorry brother we go”.

81. AHMED went to the bathroom and about 5 minutes later HG knocked on the bathroom door again and stated that he needed to go to the bathroom. AHMED went to his room and started praying. A short time later he heard a knock on the door and it was the Police. AHMED spoke to the police and answered their questions. He advised Police he had not seen the two boys before. The Mosque is open for all five prayers each day and it is usually the same people who attend and pray.

82. At about 12.00pm, Police put out an alert for HG and WE. A member of the public asked Police whether they were looking for two young boys with a pack back and stated that “They went down the lane way 20 minutes ago and have not come out.”

83. Police walked to 108 Adnum Lane and observed shoes outside next to the door. The front room was a prayer hall and Police saw WE inside, sitting on the floor leaning against the wall, wearing a three-quarter length robe and reading the Quran. Police asked WE to come outside and WE responded “What for? – What have I done? – What for?”

84. Police asked WE for his personal details and he provided his name and stated that he was from Parramatta. Police searched WE and did not locate anything on him.

85. HG walked out of a hallway into the kitchen and Police asked his name and for him to come outside. HG responded “[HG]”. Police radioed that they had the suspect and other NSW Police officers attended the scene.

86. Police informed HG they would search him and he asked where their warrant was. They informed him they did not need one. HG was searched and nothing was located.

87. HG and WE were seated on two chairs on the rear balcony area of the Mosque.

88. Police located a grey camouflage backpack in the bathroom. Only personal items were located in the small camouflage bag.

89. Police then searched a blue backpack and located two knives. One had been removed from the box. Police also located an orange knife sharpener, a loose folded A4 paper which had Arabic writing on it, a white school shirt from Strathfield Public School, a phone case and a black phone with no battery, and safety glasses.

90. The blue backpack also contained a handwritten note, written in both Arabic and English script. The Arabic script has been translated into English as reading “I advise you of piety towards God and walking in the path of God’s messenger and to pledge allegiance to the caliphate because he who dies without allegiance will die pre Islamic death.” The English script was an incomplete sentence and stated “And I advice my brothers in the”. A similar quote to this is located in Dabiq issue 2 in discussion of how people could acknowledge loyalty to Islamic State. Dabiq issue 2 was downloaded by WE on 10 December 2015 and the quote in the magazine read: ‘I advise you to fear God - And follow the steps of the Messenger of God – And pledge allegiance to the Caliph. Because whoever dies without pledging allegiance will die a pre-Islamic death.’

91. HG began to raise his voice as further Police arrived at the scene, spouting religious rhetoric, speaking about the Caliphate and stating “You’se are all pigs … you will all die in the hellfire’.

92. HG continued to rant in an aggressive manner for a number of minutes HG spoke about his religion and being a believer, and also stated “You’re all pigs, look at you, like lambs to the slaughter, you will all die in the hellfire at the hands of Allah”.

93. When asked to sit down HG refused stating ‘No, I obey only Allah’. HG was lowered to the ground by police and continued to yell religious rhetoric at police including ‘You deserve to die in hell,’ ‘You will all die in hellfire’ and ‘You will be slaughtered at the hands of Allah’.

THE EVIDENCE

7. On 30 August 2019, whilst the accused was in custody awaiting trial, a search warrant was executed on the cell that he was occupying at the Frank Baxter Juvenile Justice Centre. As a consequence of the execution of that search warrant, two publications were seized, namely:

1. “Kitab At–Tauhid” by Sheikh-ul-Islam Muhammad bin Abdul-Wahhab; and

2. “The book of Oneness of Allah" by Muhammad Iqbal Kailani. [1]

   1. Affidavit of Stephen Victor at Tab 37 of Exh A; Paras 10; 12.

8. It should be noted that these items were seized from the accused’s cell some 2 years and 10 months after his alleged commission of the offence. It should also be noted that the Crown has made it clear that its reliance on this evidence will be limited to relying on the fact, but not the circumstances, of the accused’s possession of the publications.

9. Following the seizure of the publications, the Crown obtained a report from Dr Rodger Shanahan in relation to aspects of their contents. [2] There is no dispute that Dr Shanahan holds a PhD in Arabic and Islamic studies, and is currently a Research Fellow with the Lowy Institute, an International Policy think tank based in Sydney which deals with contemporary issues of relevance to Australia, and which is divided into thematic areas and geographic programs. [3]

   2. At Tab 39 of Exh A.

   3. Evidence of Dr Shanahan at the accused's previous trial at T746.25 – T746.32.

10. Dr Shanahan has been involved in the field of Arabic and Islamic studies through training, study, experience, academic research and diplomatic work for a period of 30 years. [4] Apart from his PhD which was obtained from Sydney University, he also holds a Master of Arts specialising in Middle Eastern studies and a Master of Arts specialising in International Relations, both of which were obtained from the Australian National University. [5]

    4. T746.34 – T746.36.

    5. T746.43 – T747.2.

11. Dr Shanahan served as an army officer for a period of more than 26 years, during which he served in Arabic countries. [6] He undertook operational service duties with the United Nations as a military observer in Southern Lebanon and Syria in the mid-1990s. [7] He served as the Assistant Defence Attaché to the Australian Embassy in Saudi Arabia in 2005, in the course of which he had representational responsibility for Iran, Oman, Jordan, Kuwait and Yemen. [8] He also served as the Defence Attaché in Abu Dhabi from 2006 to 2007, during which period he had responsibility for Qatar and Lebanon. [9]

    6. T747.5 – T747.11.

    7. T747.13 – T747.23.

    8. T747.25 – T747.34

    9. T747.36 – T747.41.

12. In his current work with the Lowy Institute, Dr Shanahan's particular field of expertise is that of religiously-motivated violence, within which issues of terrorism arise. [10] In that field, he has taught courses on the subjects of sectarianism, malicious networks, terrorism, and political violence. [11] He is the author of a number of books and academic papers on those and related topics, [12] has taught a number of courses on subject matter relating to religiously-motivated violence and terrorism, and has given evidence as an expert in these fields in a number of cases in this Court, as well as in the Supreme Courts of other states of Australia. [13]

    10. T747.48 – T747.50.

    11. T748.2 – T748.5.

    12. T748.7 – T748.12.

    13. T748.14 – T748.20.

13. Omitting the formal parts, Dr Shanahan's expert report in relation to the two publications seized from the accused's cell is in the following terms:

2. Muhammad lbn Abdul-Wahhab was a conservative 18th century scholar who proposed a focus on the fundamental sources of the Qur'an and hadith, rather than medieval interpretations of Islamic law as the way to regain moral and political strength amongst Muslims in the Arabian Peninsula. Intolerant of other faiths and 'innovations' within Islam, his alliance with Muhammad ibn Saud led to the establishment of the modern Saudi state

3. Kitab al-Tauhid is a conservative religious treatise from lbn Abdul Wahhab. The first part of the translated version of the work features a prologue written by the publishing house that broadly outlines Wahhab's studies and early actions in spreading his interpretation of conservative Islam within parts of modern-day Saudi Arabia.

4. The rest of the book is Wahhab's work where he uses evidence from the Qur'an and a hadith to argue his case regarding the nature of, and adherence to the Oneness of God. It reflects the time and place at which it was written.

5. I offer the following comments on parts of the book that have been indicated to me:

a. Page 10, third paragraph. Here the author states that Wahhab sought to teach the inhabitants about the true path of Islam that he believed they had abandoned. In order to do this he was 'prepared to face every torture and atrocities (sic)' and to 'make every effort to fight against the circumstances up to the extent of jihad.' This supports the argument that undertaking armed action Uihad) in pursuit of conservative Islamic principles, is permissible;

b. Page 11 last paragraph and page 12 first paragraph. This refers to an instance in which it is alleged that a woman came to Wahhab seeking repentance for adultery and having found that she was of sound mind and had not been coerced regarding the punishment, he ordered that she be killed by stoning. The lack of condemnation by the author of this action implies agreement with it, and the author goes on to claim that because of this and other actions Wahhab's reputation spread;

c. Page 13 first paragraph. Here the author recounts the point at which lbn Saud (the progenitor of the Saudi royal family) formed an alliance with Wahhab and pledged to 'mobilize Muslims for jihad [fighting for the cause of Allah)'. Again, this shows undertaking jihad in a positive light;

d. Page 14. second and third paragraphs. Here the author recounts how Wahhab planned for jihad against those who he considered were not truly adhering to tawhid, but that they gave their religious fealty to him instead and pledged to 'fight for the cause of Islam until their last'. This reinforces the previous theme in which fighting in the name of religion is seen as a positive thing;

e. Page 18 reference to 'not to kill anyone whom Allah has forbidden. except for a just cause (according to Islamic law)'. This is a direct quote from the Qur'an and Wahhab also uses hadith to reinforce the notion of staying on what is considered the right path. The quote used also supports Wahhab's view that Islamic law permits Muslims to kill others so long as it is in accordance with the shari'ah (Islamic law);

f. Pages 34. 35 and 36 references to monotheism. The references here to monotheism are also supporting Wahhab's view regarding the primacy of Islam. He says that Muslims should try to proselytize amongst Christians and Jews (People of the Book) and to minimize contact with polytheists 'in order to not become like them even if he does not himself commit shirk (idolatry)'. This indicates an intolerance for non­Muslims and promotes the act of remaining allof from non-Muslims based solely on an interpretation of Islam;

g. Pages 39 and 40 comparisons with Christianity and Judaism. Wahhab continues his theme that Christians and Jews are going against God's will by not worshipping Him alone. Citing the Qur'an, he believes that having intermediaries such as rabbis and monks as some type of intermediary with God, Jews and Christians are not worshipping God alone and are therefore sinful;

h. Page 41 the reference to 'they will not get out of the fire'. This refers to the fact that disbelievers (non-Muslims) are destined for the fires of hell after death;

i. Page 115 last paragraph. This paragraph deals with the concept that is sometimes known as al wala' wal hara' or loyalty and disavowal. It essentially posits that those who love and hate for the sake of God will be viewed positively by God as a result. Of course, what constitutes love and hatred and who God hates is an interpretive issue, but it is also a religious justification for being intolerant of non-Muslims. Islamic State for example addressed this concept in the 11th edition of their online magazine Dabiq when they wrote that 'A Muslim's loyalty is determined, not by his skin color, his tribal affiliation, or his last name, but by his faith. He loves those whom Allah loves and hates those whom Allah hates; and

j. Page 180 last paragraph and page 181 first paragraph. This is another using hadith to justify that Muslims fighting against non­believers in the cause of God is permissible. It goes on to lay out the religiously-ordained rules of war against unbelievers. This includes offering the enemy the chance to convert to Islam or to eschew fighting them if they agree to pay a poll tax. If they refuse either option then one should 'seek Allah's help and fight them'.

6. The Book of the Oneness of Allah was first published in 1998 by Darussalam Publishers in Saudi Arabia. The copy given to me was published by a company in Lahore, Pakistan and distributed by Maktaba Baitussalam a Saudi­based company. The fact that a Saudi company was distributing the text would indicate it is from a conservative Islamic tradition. The book itself is part of a 16-part series Tajheem us Sunnah (Elaborating on/making clear the Sunnah), in which commentary is offered on the foundational principle of Islam, the unity or oneness of God.

7. The text is supportive of the approach of Wahhab above insofar as it advocates an exclusionary, intolerant view of conservative Islam. The author both cites evidence from Islamic religious sources for his views and also mounts arguments (often with scant evidence) using examples from the sub-continent regarding the dangers of polytheism.

8. In critiquing the presence of 'monastic religion' (referring to tombs and shrines to venerate prominent Muslims) for example, he claims that in various monasteries 'virgin girls are dedicated to work' or 'have become centres of obscenity and satisfaction of lust' and that 'During the anniversary ceremonies of these tombs mingling of males and females openly, songs based on love and polytheism are sung'.

9. In his discussions of his view of certain Islamic precepts, he includes the view that 'The government of the day is commanded to wage war against those who do not affirm the Oneness of Allah' (p 125). This reflects the views expressed by Wahhab in sub-para 5 j. above.

10. Elsewhere is the view that polytheists will remain in Hell forever (pp 190-91), that it is forbidden to associate with polytheists in affairs which will influence religion (p 191) and that polytheists are the biggest oppressors (p 186). The concept of opposing 'oppression' and 'oppressors' features regularly in contemporary jihadist discourse.

11.   I offer the following comments on parts of the book that have been indicated to me:

a. Page 17 last paragraph. Given the text is addressing the oneness of God, the author uses the Qur'an to prove this point and in this instance to criticize Jewish and Christian views regarding the nature of God: 'The Jews call Uzair a son of Allah, and the Christians call Jesus the son of Allah ... (in this) they but imitate what the unbelievers of old used to say. Allah's curse be on them; how they are deluded from the truth.' Because of this he argues that Jews and Christians are unbelievers and should be cursed for worshiping false idols;

b. Page 111 second and third paragraphs. Having established his argument that God does not look kindly on polytheists, he advocates waging a holy struggle against polytheism; with one's life, wealth or word (in descending order of merit) by using evidence from the Qur'an to support this view. This view has resonated with Australians convicted of terrorism offences. When speaking online with a US jihadist he was financially supporting for example, the Australian Hassan El Sabsabi said that 'I'm not able to fight with my body ATM (at the moment) akhi (my brother). So I'm going to do my best to fight with my wealth.'5

c. The other books in the series referred to on the rear cover. Without having access to them I am unable to comment on their contents, although from their titles they appear to be a combination of books about Islamic procedural issues (fasting, funerals, prayer) and ideological issues (jihad, hell ['Book of Fire'], paradise). From what the author has written and compiled in the Book of the Oneness of God, it is reasonable to assume that he would have a very conservative, intolerant view when it came to discussing these issues.

12.   These two books present a literalist view of Islam and they represent the conservative end of the Salafist ideological spectrum. The authors view the world as consisting of either 'true' Muslims or polytheists. This binary view means that polytheists by their nature are inferior to Muslims because of their rejection of the oneness of God. This in turn allows Muslims to disassociate from them and undertake violence, including jihad, against them.

14. Dr Shanahan gave oral evidence on the voir dire before me. He explained his view that “The Oneness of Allah" text was supportive of the approach of Wahhab, and explained that Wahhabism was a variation of Salafism, bearing in mind that Salafism is itself a conservative form of Islam. [14]

    14. T54.32-T54.38.

15. Dr Shanahan agreed that Wahhabism was connected strongly to the Kingdom of Saudi Arabia, which was not a terrorist state. [15] He was asked: [16]

Q. So although the Sauds, the predecessors of the current King, were happy to join forces with Sheikh Ul Islam Muhammad Bin Abdul Wahhab (as said), S H E I K U L I S L A M M U H A M M A D B I N A B D U L W A H H A B, so whilst the King, and previous, his ancestors, were happy to join with this man, they were not joining with someone because of a belief they had in terrorism, were they?

A. That's correct.

15. T55.7 – T55.19.

16. T55.21 – T55.27.

16. When asked to explain the nature of the publication “The Oneness of Allah" Dr Shanahan said: [17]

It's an interpretation or an exegesis of Islamic legal concepts that the author believes pertains to the concept of "Tawheed" or, you know, "the oneness of God".

17. T56.46 – T56.48.

17. Dr Shanahan agreed that it was a “fairly conservative publication". [18]

    18. T56.50 – T57.1.

18. Dr Shanahan was then taken to those parts of his report in respect of which he had made specific comment in relation to aspects of this publication: [19]

    19. T57.20 – T57.44.

Q. In the first comment, page 10, third paragraph, you claim that:

“Wahhab sought to teach the inhabitants about the true path of Islam that he believed they had abandoned. In order to do this he was prepared to face every torture and atrocity to make every effort to fight against the circumstances up to the extent of jihad."

And you say your view is that this supports undertaking the war‑like form of jihad; is that right?

A. Sorry, what form of jihad?

Q. The war‑like form?

A. That's correct.

Q. Then you refer to someone who confessed to him that she committed adultery, having sought repentance, and he ordered that she be stoned. So what's the significance of this?

A. Say again, sorry?

Q. What is the significance of this rather gruesome story?

A. What do you mean by the "significance"?

Q. Well, if you're looking at this text to determine what Wahhabism stands for, what does this say to you?

A. This supports the literalist interpretation of Islamic law.

SUBMISSIONS OF THE PARTIES

Submissions of the accused

19. Accepting that the Crown's tender is limited to the fact of the accused’s possession of the publication, senior counsel for the accused submitted that:

1. the evidence was not relevant having regard to s 55 of the Evidence Act 1995 (NSW) (“the Act”);

2. if relevant, the evidence should be excluded pursuant to s 137 of the Act.

20. Both of these submissions went substantially beyond paragraph 18 of the notice of motion, the terms of which were restricted to an objection to the evidence of Dr Shanahan. The submissions raised fundamental issues of admissibility and exclusion of the evidence. Such issues were reflected in paragraph 10 of notice of motion which I was informed had been abandoned. However, the Crown accepted that it was not prejudiced by this change of position.

21. In terms of relevance, senior counsel for the accused submitted that properly understood, both of the publications were theological and conservative in nature and did not, in any sense, demonstrate anything about the accused's state of mind, or any adherence on his part to an extremist ideology. Senior counsel submitted, in particular, that the material contained in the publications was of an entirely different nature than that which was found on the various electronic devices linked to the accused, and which would be relied upon by the Crown to support the conclusion that the accused adhered to an extremist ideology.

22. Senior counsel also pointed to the fact that the accused was in possession of the two publications a significant period of time after the commission of the alleged offence. Whilst accepting that he would put to the jury, on behalf of the accused, that it was open to conclude that other persons had access to the electronic devices upon which extremist material had been found, senior counsel rejected the proposition that these two publications were relevant because they established a continuum of interest, on the part of the accused, in such material. Senior counsel submitted that such proposition was untenable, for the simple reason that the nature of these two publications was completely different to the nature of the material which was found on the devices connected to the accused.

23. In the event that I were to conclude that the evidence was relevant and should be admitted, senior counsel submitted that the opinions of Dr Shanahan should nevertheless be excluded. Whilst senior counsel did not take issue with Dr Shanahan's training, study and experience as I have outlined it, he submitted that whatever expertise Dr Shanahan may have did not qualify him to express the opinions about the publications that he had expressed.

24. Senior counsel further submitted that Dr Shanahan was not a theologian, and that he was unable to say anything about the books being connected with (for example) Islamic State, or any other extremist organisation.

Submissions of the Crown

25. In terms of the accused's objection based on relevance, the Crown submitted that the evidence demonstrated a continuum of interest on the part of the accused in extremist literature. The Crown pointed out that the remaining evidence of the accused's possession of extremist literature was limited in time, and that although the two publications were found in the accused’s possession a considerable time after his alleged commission of the offence, such possession remained a relevant consideration for the jury, and would address the submission that the jury could not be satisfied that it was the accused, as opposed to someone else, who had access to the devices that contained the remaining extremist material.

26. It was further submitted that the two publications demonstrated an interest, on the part of the accused, in extremist themes, including that of martyrdom.

25. Submitting that the evidence was relevant in that sense, the Crown further submitted that its probative value was significant, and that its admission would not result in any unfair prejudice to the accused. The Crown submitted, in particular, that there was no indication that the jury would misuse the evidence by giving it more weight than it deserved.

26. In terms of the evidence of Dr Shanahan, the Crown submitted that Dr Shanahan's expertise was properly categorised as a field of specialised knowledge derived from his studies, research and experience in the field of history and political science. The Crown submitted that this was the type of specialised knowledge which was contemplated by s 79 of the Act. [20]

    20. See for example R v Vinayagamoorthy and ors (2008) 238 FLR 117; [2008] VSC 599 at [23]-[24].

27. The Crown submitted that the opinions expressed by Dr Shanahan concerning these publications clearly met the requirements of s 79. It was submitted that Dr Shanahan, having examined the contents of the publications, had expressed opinions based on his expertise, and which were derived from his academic study and field research. It was submitted that the evidence to be given by Dr Shanahan in these respects was no different to that which was to be given by him in relation to the other material found in the accused's possession, to which there was no objection.

28. In advancing these submissions, the Crown made it clear that whilst it was proposing to tender the entirety of the two publications, it would be emphasising those particular passages upon which Dr Shanahan had expressed his opinions.

CONSIDERATION

31. It is appropriate to firstly consider the question of whether the evidence is relevant. Relevance of evidence is determined by s 55 of the Act which is in the following terms:

55 Relevant evidence

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2) In particular, evidence is not taken to be irrelevant only because it relates only to:

(a) the credibility of a witness, or

(b) the admissibility of other evidence, or

(c) a failure to adduce evidence.

32. Relevance is a test of logical connection, although it will be evident that the test imposed by s 55 is a relatively undemanding one. In order to be relevant, there must exist the possibility that the evidence may have some rational effect on the assessment of the probability of a fact in issue. [21] That effect may be direct or indirect. [22]

    21. Nye v NSW [2002] NSWSC 1270.

    22. Zaknic Pty v Svelte Corporation Pty Limited (1995) 61 FCR 171; R v Privett [2001] NSWCCA 518.

33. For a number of reasons, and notwithstanding the width of s 55 of the Act, I am not satisfied that the evidence is relevant.

34. The relevant fact in issue is whether the accused subscribed to what might be described as an extremist ideology. In my opinion, when the two publications are viewed as a whole, they are not properly regarded as extremist in nature. They are essentially religious texts, both of which Dr Shanahan described as conservative. Taken in isolation, the specific passages referred to by Dr Shanahan in his report might be viewed as extreme in one sense. However, those passages are included in the respective publications against a background of other material which could not be said, in any way, to fall within the ambit of extremism.

35. For example, “Kitab At-Tauhid” covers subject matter under headings such as:

1. there is nothing deserving of worship in truth except Allah; [23]

2. an explanation of Tauhid and the testimony; [24]

3. what the Lord has said; [25]

4. the intercession; [26] and

5. Allah guides whom he wills. [27]

   23. Chapter 5.

   24. Chapter 6.

   25. Chapter 16.

   26. Chapter 17.

   27. Chapter 18.

36. The publication entitled “The book of Oneness of Allah" contains subject matter under headings which include:

1. Oneness in being of Allah; [28]

2. Oneness of worship; [29]

3. preservation of honour and self-respect; [30]

4. spiritual serenity; [31] and

5. kinds of polytheism. [32]

   28. Chapter 1.1.

   29. Chapter 1.2.

   30. Chapter 2.2.

   31. Chapter 2.4.

   32. Supplement 1.6.

37. In these circumstances, the two publications do not, in my view, have the capacity to bear upon the assessment of the identified fact in issue.

38. It is also of some significance, in my view, that the accused's possession of these publications occurred a significant period after his alleged commission of the offence. I am unable to accept the Crown's attempt to address this issue by submitting that the accused’s possession of the publications is relevant because it establishes a continuum of interest in extremist literature. This is for the simple reason that in my view, neither publication is properly categorised as extremist. Neither bears any similarity whatsoever to the other material upon which the Crown will rely in this respect [33] .

    33. See Crown case statement at [6]-[8].

39. I should also say that even if I had come to the view that the evidence was relevant, I would have excluded it pursuant to s 137 of the Act. It will be evident from what I have already said that the passages to which Dr Shanahan has referred, and which would have been the subject of emphasis by the Crown if the evidence had been admitted, form a very small part of the totality of what is otherwise generally conservative religious material. Concentrating upon them has the capacity to result in a somewhat misleading assessment of each publication as a whole. I should make it clear that in making those observations, I do not intend, in any way, to be critical of Dr Shanahan. It is evident that in compiling his report, and in highlighting those specific passages, Dr Shanahan was doing no more than providing the opinion that was sought from him. However, it remains the case that if the evidence were admitted, there would be a real risk that the jury would ascribe substantially more weight to it than was warranted. Those circumstances would engage the provisions of s 137 of the Act.

40. Having reached these conclusions it is unnecessary for me to consider the admissibility of Dr Shanahan's opinions.

41. For all of these reasons, the evidence of the accused's possession of the two publications will be excluded.

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Endnotes

Amendments

09 April 2020 - Amendment to quoted text in paragraph [6].

Decision last updated: 09 April 2020