Regina (C'Wealth) v Baladjam [No 34]

[2008] NSWSC 1455

CITATION:	Regina (C'Wealth) v Baladjam & Ors [No 34] [2008] NSWSC 1455
HEARING DATE(S):	23/07/08
JUDGMENT DATE :	25 July 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
DECISION:	Motion dismissed.
CATCHWORDS:	CRIMINAL LAW - Scope of issues at trial - Relevance of Material to issues at trial - Exclusion of prejudical material.
LEGISLATION CITED:	Criminal Code Act 1995 Evidence Act 1995
CASES CITED:	Papakosmas v The Queen (1999) 196 CLR 297 at 307; 312 and 321-322 R v Baladjam [No 9] 15 April 2008 R v Blick [2000] 111 A Crim R 326 R v E M [2003] NSWCCA 387 R v Lodhi [2007] NSWCCA 360 at 174-177 R v Mundine [2008] NSWCCA 55 at 33 R v Serratore (1999) 48 NSWLR 101 R v Shamouil (2006) 66 NSWLR 228 at 47-65 R v Sood [2007] NSWCCA 214 at 26-43 R v Yates [2002] NSWCCA 520 at 252 Smith v The Queen [2001] 206 CLR 650 at 653
PARTIES:	Regina (C'Wealth) v Omar BALADJAM [No 34] Regina (C'Wealth) v Khaled CHEIKHO Regina (C'Wealth) v Moustafa CHEIKHO Regina (C'Wealth) v Mohamed Ali ELOMAR Regina (C'Wealth) v Abdul Rakib HASAN Regina (C'Wealth) v Mohammed Omar JAMAL Regina (C'Wealth) v Mirsad MULAHALILOVIC Regina (C'Wealth) v Khaled SHARROUF Regina (C'Wealth) v Mazen TOUMA
FILE NUMBER(S):	SC 2007/2397001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; 2007/2396001; 2007/2455001
COUNSEL:	W Abraham QC; G. Bellew SC; C. Donnell; Ms S McNaughton - Crown M Buscombe SC; R Pontello - Accused Baladjam C Waterstreet; P Lange - Accused K Cheikho R Button SC; I Nash - Accused M Cheikho D Dalton SC; E Ozen - Accused Elomar Ms D Yehia; Ms S Beckett - Accused Hasan G Scragg; D Carroll - Accused Jamal G Turnbull SC; A Djemal - Accused Mulahalilovic W Brewer; M Pickin - Accused Sharrouf S Hanley; - Accused Touma
SOLICITORS:	Commonwealth DPP Greg Walsh & Co - Accused Baladjam Lawyers Corporation Ltd - Accused K Cheikho William O'Brien & Ross Hudson Solicitors - Accused M. Cheikho Nyman Gibson Stewart - Accused Elomar Legal Aid Commission - Accused Hasan Michael Doughty Solicitor - Accused Jamal Matouk Joyner Lawyers - Accused Sharrouf Lawyers Corporation Ltd - Accused Mulahalilovic Burke & Elphick Lawyers - Accused Touma

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

PARRAMATTA: FRIDAY 25 July 2008

2007/2397001 - Regina v Omar BALADJAM [No 34]
2007/2395001 - Regina v Khaled CHEIKHO
2007/2398001 - Regina v Moustafa CHEIKHO
2007/2399001 - Regina v Mohamed Ali ELOMAR
2007/2400001 - Regina v Abdul Rakib HASAN
2007/2452001 - Regina v Mohammed Omar JAMAL
2007/2454001 - Regina v Mirsad MULAHALILOVIC
2007/2396001 - Regina v Khaled SHARROUF
2007/2455001 - Regina v Mazen TOUMA

JUDGMENT - Application by Hasan to exclude evidence relating to items found at his premises on 8 November 2005

1 HIS HONOUR: This is an application to exclude certain evidence the Crown proposes to adduce at trial. Originally, there were four categories of evidence. They were as follows:

(a) Two pistol grips which were found in a motor vehicle UOZ 851 located outside Hasan's residence.
(b) A pistol holster found in the accused's residence at 117 Sproule Street, Lakemba.
(c) Three Daily Telegraph articles dated 2 June 2004, 23 June 2005 and 4 November 2005.
(d) A twelve page typed document in letter form dated 9 July 2005.

Background

2 As I have indicated, the various items were found during the execution of a search warrant. This search warrant was executed on 8 November 2005 at the home of Hasan. During the course of that search a large amount of items, including computers, software, media and other items, were taken either from the home or from the Toyota Tarago motor vehicle UOZ 851. The pistol shoulder holster was located in a box in the lounge room of the residence. (There were other items in the box, including electrical components, watches, multi-tools, cable ties, camouflage gear, plastic containers, city maps, a 12-volt 230-240 volt inverter, a 24-hour program timer and a gas cartridge.) One pistol grip was located in the centre console of the Tarago and a second was located in the glove box. The newspapers and other documents were found in the house

Submissions on behalf of Mr Hasan

3 Ms Yehia made the submissions on behalf of Mr Hasan. Counsel argued that none of the evidence identified was relevant in the trial. Alternatively, it was submitted that the probative value of the evidence was outweighed by the danger of unfair prejudice under s 137 of the Evidence Act. Ms Yehia's principal concern in relation to the twelve-page document was that the Crown might wish to assert that this apparently extremist "letter" was addressed to, or intended to be received by, Mr Hasan as the recipient. The Crown made it clear, however, that this would not be the basis on which the material would be led. Rather, the Crown would submit simply that it was material in his possession that reflected upon the state of mind of Mr Hasan, and that such state of mind was a matter relevant to the charge. In the light of the Crown concession, there was no further argument regarding this item.

4 Ms Yehia took strong exception, however, to the admission of the remaining material. Conveniently, counsel dealt with the two pistol grips and the holster as one category. In that regard, counsel submitted that there was no evidence in the Crown case that would fix those particular items with any connection to the charged conspiracy. In particular, there was no evidence identifying those items as part of the sourcing, or attempted sourcing, of firearms in furtherance of any preparation for a terrorist act.

5 Ms Yehia contrasted the nature of these items found, ostensibly in Mr Hasan's possession, with items such as the weaponry found in the possession of another of the accused, Mr Baladjam (see my earlier decision R v Baladjam & Ors [No 9], 15 April 2008). Whilst acknowledging that a different charge was involved, Ms Yehia placed reliance on two decisions by Bongiorno J in the Melbourne terrorism trial of R v Benbrika. These decisions were rulings 16 and 17 where his Honour had excluded evidence of two shotguns having been found in the possession of one of the accused. His Honour also excluded the finding of a .22 rifle found in the possession of another of the accused and excluded as well the possession by a third accused of a knife. In R v Benbrika (ruling 17) Bongiorno J excluded evidence of the possession by one of the accused of a loaded .45 Colt semiautomatic pistol. This latter piece of evidence was excluded on a discretionary basis.

6 In relation to the newspaper articles, they fell into two separate categories. The first was an article published in the Daily Telegraph on 2 June 2004. The lead article contains a picture of Jack Roche, who had been convicted of a serious terrorism offence the day before the article was published. I will not set out the whole of the article. It will be convenient, however, to refer to the principal headlines.

7 The main headline is in the following terms: "What a joke". The subsidiary headline refers to the conviction of Mr Roche. It continues:

“He shared a meal with Osama, he met the Bali mastermind, he learnt to use explosives, he plotted a deadly attack...he could be out of gaol in three years!"

8 There was also a reference to the Telegraph editorial for 2 June 2004 complaining about the fact that the "judiciary lets the nation down", referring in that regard to a judicial "lack of backbone".

9 The second and third articles fell into a different category. As I have indicated, one is dated 23 June and the other is dated 4 November 2005. The first article refers to "ASIO terror raids" and to "extreme group plotting attack on Australians".

10 The first article deals with a series of raids conducted by ASIO on 22 June 2005. It asserts that the raids were conducted by ASIO "after receiving intelligence that a radical Islamic group was plotting a terrorist attack on Australia". The article continues:

“The Daily Telegraph has learned that extremist cells in Sydney and Melbourne have been liaising on plans to carry out a terror assault...the Sydney Harbour Bridge and the Opera House were named as targets but sources said the group intended to strike first in Melbourne.”

11 In reference to what was described as the Sydney group, the article continues:

“The Sydney group has been observed using small boats to spy on the Opera House and Harbour Bridge.”

12 The article contains photographs of both the Opera House and the Harbour Bridge with the word "target" splashed across the top of each photograph in bold.

13 The November 4 article is headed "Harbour Bridge and Kurnell are high risk targets". Once again, there were photographs of the Opera House and the Harbour Bridge. This time there are also photographs of two Sydney oil refineries, the Melbourne Stock Exchange and Melbourne's Flinders Street Station. The body of the article contains the following:

“The Sydney Harbour Bridge and the Kurnell oil refinery are the top two targets of a suspected terrorist cell being tracked by spy agencies and police. The shadowy group of Islamic militants has been investigated by ASIO and State and Federal Police for more than a year but moved closer to an attack last weekend. The extremists are part of a Sydney-Melbourne alliance which planned to launch attacks in the country's two biggest cities...ASIO and AFP agents raided a string of homes in Sydney and Melbourne as part of Operation Pendennis in June. Last night police were poised for another set of raids as urgent law changes were rushed through Federal Parliament.”

14 The article also refers to the fact that “two Sydney men” were questioned in June after spy agencies observed them “taking video footage of the Harbour Bridge and the oil refinery at Kurnell from small boats on the Harbour”. The article also asserts that the men were believed to be working “in tandem” with a terror cell in Melbourne.

15 Ms Yehia submitted that there was nothing in the Crown case to suggest that there would be any evidence that the accused in the present matter had any plans to “target” either the Sydney Opera House or the Harbour Bridge. There would be no evidence to suggest that "the Sydney group" had been observed using small boats to spy on the Opera House and Harbour Bridge. In other words, Ms Yehia submitted that the two articles were an irresponsible and sensationalist beat-up, at least so far as their principal focus was concerned. In these circumstances, Ms Yehia submitted that the articles were not relevant to any issue in the trial. On the other hand, counsel submitted that their sensational nature would inevitably carry with it a considerable amount of unfair prejudice and would be likely to be used unfairly to convict the accused in relation to matters not the subject of the Crown case.

16 Ms Yehia also made the obvious point that the Crown case here did not assert that there was a Sydney and Melbourne group "working in tandem" with a joint aim for the carrying out of a local terrorist act.

17 In response, the Crown argued that the holster and gun grips were items that were relevant to the Crown case. Mr Hasan's possession of these, the Crown argued, might be seen as similar to the possession by Baladjam, and other accused, of items the kind dealt with in R v Baladjam [No 9]. The Crown submitted there was no real distinction between the subject items and other items, including weaponry, which had been the subject of earlier rulings allowing their presentation as evidence at trial. The Crown accepted, however, that its case posited that Hasan was particularly interested in the purchase of laboratory equipment and chemicals rather than weaponry.

18 It argued, however, that the true scope of the conspiracy meant that the reach of the evidence, so far as Hasan was concerned, could legitimately extend to items of the kind now under debate. Hasan, for example, had attended at camping trips at Curranyalpa and Mulga Creek. Weaponry and ammunition had been used at each of those camps in what was described by the Crown as a training camp in preparation and readiness for carrying out the objects of the conspiracy. The conspiracy, the Crown repeated, was a broad one, namely, an agreement to obtain the capacity or capability to do acts in preparation for a terrorist act or acts. It involved the accused equipping themselves with the knowledge, ability and means to do acts in preparation for a terrorist act or acts. It was not confined to being either an agreement to obtain weaponry and ammunition, or one to obtain chemicals and other relevant materials which could be used in the construction of an explosive device.

19 The Crown case is that, although matters of that kind were plainly and obviously contemplated by the agreement, the agreement itself was of a wider kind as particularised in the Crown case statement. Consequently, the agreement involved, for example, individual preparation of a physical, mental and spiritual kind. It extended to a wider preparation on the part of individual conspirators in the cause of jihad.

20 The Crown argued that when the scope of the conspiracy was examined in this way, the possession by Mr Hasan of the holster and gun grips could be readily seen to be relevant to the issues postulated by the charge in the indictment. For the same reason, the decisions of Bongiorno J in R v Benbrika (rulings 16 and 17) were plainly distinguishable. In that trial, the accused had simply been charged with belonging to a terrorist organisation.

21 In relation to the newspaper articles, the Crown adhered to the proposition that they were relevant for the purposes of the trial. The Jack Roche article was relevant as to the accused's state of mind. The other two articles, although it was conceded they were highly sensational and inaccurate, were again relevant as they demonstrated Mr Hasan's concern with concealment and with counter-surveillance to avoid the attention of the authorities. Ultimately, the Crown accepted that it might be necessary to edit parts of the material in the two later newspaper items because of their prejudicial effect. This "concession" by the Crown carried with it the notion that the Crown tacitly accepted that, in a number of respects, not only were the articles prejudicial, but they might be seen as unfairly so.

22 In reply, Ms Yehia made a number of points. There is no need to detail all the points argued in reply. Principally, however, Ms Yehia suggested that there was ample evidence in the Crown case on which it could place reliance to show that the accused generally were aware that they were being monitored and that, consequently, the newspaper articles were, in any event, unnecessary for the Crown case. Ms Yehia made specific reference to the extensive range of material gathered together under paragraphs 5 and 6 of the Crown case statement, including the material contained in the extensive footnote references to those paragraphs.

Resolution of the issues

23 This is the first of the arguments that seeks exclusion of material found during the November 2005 search warrant procedures. It is likely that there will be a number of other similar applications. It is appropriate, therefore, that I take the opportunity, at the outset of this decision, to repeat well-established principles relating to relevance, admissibility, and exclusion of evidence where the real prospect of unfair prejudice may be said to outweigh the level of probative value.

Relevance

24 The first question to be asked when an issue of the present kind arises is whether the evidence is relevant (Smith v The Queen (2001) 206 CLR 650 at 653). Although questions of relevance may raise "nice questions of judgment", no discretion falls to be exercised. Evidence is either relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. The simple fact is that irrelevant evidence may not be received. These propositions are fundamental to the law of evidence and well established.

25 In determining relevance in a criminal trial, it is important and necessary to identify the ultimate issues. These will ordinarily be expressed in terms of the elements of the offence with which the accused stands charged in the light of the defence, if known. Section 55 of the Evidence Act 1995 is in very broad terms. It states that 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 proceedings. Behind these ultimate issues there will often be many issues about facts relevant to facts in issue. (Smith at 654; Papakosmas v The Queen (1999) 196 CLR 297 at 307; 312 and 321-322.)

26 In its terms, s 55 clearly intends that a broad scope be given to the identification of evidence that may be relevant in a criminal trial. In particular, it is the capacity of the evidence to affect rationally, whether directly or indirectly, the assessment of the probability of the existence of a fact in issue. Concepts such as “capacity”, “assessment” and “probability” emphasise the width of the approach, although the exercise is curtailed and governed by the dictate that at all times it is to be performed by the application of a “rational” process of thought. The touchstone of the process will relate to the issues at trial, identified by the ingredients of the offence in the light of the defence. The language emphasises that it is the capacity of evidence to rationally have a bearing, even if it be an indirect one, upon the assessment of the probability of the very existence of a fact in issue that is important. Section 56 itself has been described (in Odgers' Uniform Evidence Law, 5th Edition, page 114) as "the key provision regarding the admissibility of evidence" in Chapter 3. The section provides:

“56(1) Except as otherwise provided by this Act , evidence that is relevant in a proceeding is admissible in the proceedings.
(2) Evidence that is not relevant in the proceeding is not admissible.”

27 This section makes it plain that the relevance of evidence is not a question of degree. Evidence is either relevant or it is not.

28 I have set out at paras 18 and 19 above, in the most general of terms, the nature of the Crown case against Mr Hasan and the other accused. The Crown must prove beyond reasonable doubt that Hasan entered into the agreement alleged by the Crown with one or more other persons. (This is the physical element required by the Criminal Code Act 1995). Secondly, the Crown must prove beyond reasonable doubt that Hasan did so intentionally (this is the fault element). Thirdly, the Crown must prove beyond reasonable doubt that Hasan and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement (this reflects the intention required by s 11.5(b) of the Criminal Code Act 1995). Finally, Hasan or at least one other party to the agreement must have committed an overt act pursuant to the agreement (s 11.5(c) of the Criminal Code Act 1995). (The “ingredients” of a terrorist act have been identified and explicated by the Court in earlier decisions).

29 Mr Hasan's defence of “not guilty” to the charge puts in issue each of the essential elements of the offence that I have identified. As a consequence, there are likely to be a considerable number of facts relevant to facts in issue involved in the proof of the Crown case beyond reasonable doubt. In that circumstance, the net cast by s 55 of the Evidence Act 1995 is likely to be very wide indeed. In a theoretical sense, it does not permit (on the issue of relevance) a distinction to be drawn, in this trial, between the possession by an alleged conspirator of a weapon and the possession by another conspirator of an item such as a pistol holster or pistol grips. Nor, having regard to the broad nature of the alleged conspiracy, does it allow (in assessing relevance) the placement of individual conspirators into separate boxes or compartments where, for example, one is said to be involved in the purchase of laboratory equipment and chemicals, and another is said to be involved in obtaining or attempting to obtain weaponry or ammunition. There is likely to be a broad crossover between such activities and functions, particularly where it is alleged that surveillance and counter-surveillance were actively and frequently involved.

30 Further, distinctions of this kind will be markedly eroded at the edges, especially in relation to the establishment of the necessary fault and mental elements required in the establishment of the charge. Again, even further blurring of such distinctions will occur when the broad nature of the agreement charged is sought to be established at a practical level.

31 Let me move from a theoretical consideration of these aspects of the charge and defence to a consideration, in practical terms, of other evidence likely to be led in the Crown case. It is true, as Ms Yehia has said, that the Crown case particularly focuses on Mr Hasan's involvement with the purchase of laboratory equipment and the like. But the Crown case is that Mr Hasan, like the others, has a mindset that relates to his common belief with the others, focusing on their common interpretation of the Muslim faith. The Crown case is that this common belief is deep seated and fundamental in a general sense. It focuses on an acceptance that a significant and legitimate aspect of the fulfilment of their individual religious obligations is the cause of violent jihad. This is a concept, not being merely one of political disagreement, but one which may involve, where necessary, the application of force and violence, including, in certain circumstances, the killing of non-believers, the doing of damage to the property of non-believers, and the infliction of violence to bring about a radical political change through the consequences of, and fear engendered by, terror.

32 According to the Crown case, the common belief of all the alleged conspirators, including Mr Hasan, carried with it the need to be prepared for jihad; to be prepared to accept surveillance and interference from the authorities, and, if necessary, to counter that interference in whatever way would most efficaciously enable the continued fulfilment of the alleged conspiracy.

33 Mr Hasan was, for example, according to the Crown case, involved in two training camps. These camps were at remote locations. They were booked under a false name, and were booked using mobile telephones obtained in a false name. The participants, despite requests to do so, failed to complete the necessary paperwork which would have required the provision of the names and addresses of those camping. Other material in the Crown case shows the interest of a number of the accused in obtaining camping equipment, maps and other items which could be used at remote camping locations. As I have said, each of the camping trips involved weaponry and ammunition. A number of the accused were found to have weapons, ammunition or similar materials in their possession on or about 8 November 2005 when the arrests were made. (Some examples of this are to be found in R v Baladjam [No 9] at paragraphs 20 and 21.) In particular, for present purposes, Baladjam had a pistol holster and Touma was found with one in his possession. The fact that Hasan had a pistol holster and pistol grips, but no pistol, does not obliterate the relevance of the items he in fact possessed.

34 Finally, it might be mentioned that, as the Crown pointed out, one of the documents located commonly on the computers of eight of the accused, including Hasan, was a document headed "mission preparation". It refers to “basics” that will be required for a mission, including a water bottle, compass and, relevantly for the present argument, a pistol holster.

35 In my view, the broad test of relevance in the Evidence Act, coupled with the range of issues involved in the trial in the present matter, makes it quite clear that Hasan's possession of these items is relevant in the trial. I consider that the decisions of Bongiorno J, dealing as they do with a completely different charge, are clearly distinguishable from the present case. I can well understand why it was that Bongiorno J suggested that circular reasoning might be involved in relation to the possession of weaponry in that trial. That is not the case here, however, where possession of the items in question plainly has a relevance to the establishment by the Crown of the physical and fault elements I have identified.

Section 137 of the Evidence Act – Principles of exclusion

36 I turn now to consider s 137 and the suggested exclusion of the evidence on this basis.

37 Ms Yehia has argued that the evidence should be excluded under s 137. This section of the Evidence Act is in the following terms:

“ [137] Exclusion of Prejudicial Evidence in Criminal Proceedings .
In a criminal proceeding, the Court must refuse to admit evidence adduced by the Prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant".

38 Section 137 requires a balancing by the trial judge of the probative value of the evidence against the danger of unfair prejudice to the defendant. If that balancing process results in a finding that the probative value is outweighed by the danger of unfair prejudice, the Court is constrained to refuse to admit the evidence. No element of discretion applies.

39 The section requires the Court to consider, first, the probative value of the evidence in this case of the items found in Hasan’s home and car. Secondly, the Court must examine the probative value of the evidence relative to its prejudicial effect to the extent that it could or would be unfair. (See R v Serratore (1999) 48 NSWLR 101; Papakosmas v R; R v Blick (2000) 111 A Crim R 326; R v E M (2003) NSWCCA 374; R v Yates (2002) NSWCCA 520 at (252)).

40 Counsel for the accused has argued that in this matter, the probative value of the evidence, whatever it be, is outweighed by the danger of unfair prejudice to the accused by its admission. The unfair prejudice is said to arise in a number of ways, all of which are detailed in the written and oral submissions.

41 In my view, however, the evidence in the present matter has a reasonable level of probative value. Probative value is defined in the Dictionary to the Evidence Act 1995 as follows:

“Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.”

42 (It is now accepted that it is not, in general terms, open to a trial judge, in assessing the probative value of any piece of evidence, to take into account an evaluation of its reliability or, for that matter, the credibility of the witness who gave the evidence (R v Shamouil (2006) 66 NSWLR 228 at 47-65; R v Lodhi (2007) NSWCCA 360 at 174-177; R v Mundine (2008) NSWCCA 55 at 33; R v Sood (2007) NSWCCA 214 at 26-43.)

43 This definition of "probative value" (and indeed the terms of s 55 of the Evidence Act 1995 itself) makes it plain that, at least in jurisdictions involving the Evidence Act, relevance is not a question of degree. On the other hand, an assessment of the probative value of any piece of evidence does require an analysis of the capacity of the evidence to affect rationally the assessment of the probability of the existence of a fact in issue. Questions of degree do arise. Here, as I have said, the evidence seems to me to possess a reasonable level of probative value, in the sense postulated by the terms of the Evidence Act and its Dictionary.

44 I am not satisfied, however, that the evidence is likely to be misused by the jury, or that the jury would be likely to give it undue weight. At para 25 of my decision R v Baladjam [No 9] I said:

“For the reasons I have given, I conclude that the evidence sought to be relied upon by the Crown is admissible not only against Mr Baladjam, but also against the other accused. It is evidence that has a high probative value and it is consistent with the Crown case generally against all of the accused. I am not satisfied that there is any danger of unfair prejudice if the evidence were to be admitted. Of course, it may be true that the community does not look favourably upon the possession of loaded guns in a public place. But neither does it look any more favourably upon the type of activities that the Crown alleges the co-conspirators were engaged in furtherance of the objects of the conspiracy. Nor, for that matter, does the community look particularly favourably upon acts being carried out in preparation for a terrorist act or acts. As I have said in other decisions, provided appropriate directions are given to a jury so that they understand how evidence may be used and, more importantly, not be used, I do not think that any question of unfair prejudice is likely to arise. That point of view applies equally to the present evidence.”

45 Those observations have even greater weight in the present context. Would the jury look especially unfavourably upon Hasan's possession of two gun grips and a holster? I think not. After all, the possession of those items, if that be accepted, is but one circumstantial factor in the Crown case. It is not a particularly alarming factor. As Ms Yehia pointed out, possession of items of those kind is not illegal. It is not dangerous, and it says nothing that is necessarily adverse to the person who possesses them. Indeed, possession of items of that kind may be explained innocently and readily. A direction could be given to the jury, of course, so that they comprehend how the evidence may be used and so that they comprehend, more importantly, how it is not to be used. I do not suggest that such a direction would be necessary in relation to these items, but the capacity to give a direction of that kind is plainly there, if the defence consider it is needed.

46 In any event, I do not think that any question of unfair prejudice is likely to arise.

47 I turn now to the newspaper items. The first article relating to the conviction of Jack Roche is, in my view, relevant. The fact that Mr Hasan has retained the item in his possession, presumably for a period of time, is capable of reflecting on his mindset and on his attitudes that are relevant to the issues in the trial. I do not consider that there is any aspect of unfair prejudice involved in the contents of the article.

48 It is otherwise, however, with the later Telegraph articles dealing with the ASIO raids. As I indicated during argument, I think that they are "over the top" and they should not be presented to the jury in the form in which they appear as exhibits on this application.

49 I would be prepared to allow the Crown to indicate, in bland form, that Mr Hasan had in his possession (or they were found at his home if that be preferred) two articles appearing in the Daily Telegraph, one being dated 23 June 2005 and the second 4 November 2005. The Crown could indicate that the first article related to ASIO undertaking "secret raids" and indicating, in general terms, where the raids took place. So far as the contents of the second article is concerned, the statement could simply refer to the fact that ASIO and the AFP agents had raided a number of homes in Sydney and Melbourne as part of a joint operation in June and that the police were poised for another set of raids as urgent law changes were being rushed through Federal Parliament. The precise terms of any such statement should be agreed between the parties. I will intervene if necessary.

50 In these circumstances, I will simply order that the motion be dismissed. It may be revived before me if agreement is not able to be reached in relation to the two newspaper articles.

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