Regina (C'Wealth) v Baladjam [No 43]

[2008] NSWSC 1461

CITATION:	Regina (C'Wealth) v Baladjam & Ors [No 43] [2008] NSWSC 1461
HEARING DATE(S):	19/08/08; 20/08/08
JUDGMENT DATE :	26 August 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
DECISION:	Decline to exclude evidence of statements made by Khaled Cheikho.
CATCHWORDS:	CRIMINAL LAW - Application to exclude evidence of alleged co-conspirator - Whether evidence inadmissible because of hearsay rule (s 59 Evidence Act 1995) - Whether evidence should be excluded because of incompetency to give evidence - s 61 of Evidence Act 1995 - Whether evidence should be excluded under ss 135 and 137 Evidence Act 1995 - Whether evidence should be excluded under s 90 Evidence Act 1995
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	Cox v State of NSW (2007) NSWSC 471 per Simpson J at (11) - (17) EM v R [2007] 239 ALR 204; [2007] HCS 46 at [109] per Gummow and Hayne JJ Jackson v The Queen (1962) 108 CLR 51 Kamelah v R [2005] 79 ALJR 541; [2005] 213 ALR 97; [2005] HCA 2 Papakosmis v R (1999) 196 CLR 297 Oeng Hengky Wiryo v HKSAR [2007] HKCFA 8, 9 February 2007 R v Baladjam [No 3] 18 March 2008 R v Baladjam [No 8] 15 April 2008 R v Barbara & Rovere (2000) 112 A Crim R 551, 559 at 42 R v Clark [2001] 123 A Crim R 506 at 577 (147) R v Ivan Djerke [2006] ACTSC 104 (10 October 2006) R v GK [2001] 53 NSWLR 317 at 324 R v Hannes [2000] 158 FLR 359, 441-2 AT (480) R v Michael John Parker (1990) 19 NSWLR 177 R v Polkinghorne (1929) 109 A Crim R 189, 193 at (25) R v Khaled Sharrouf [No 2] 28 June 2008 at para 23 R v Yates (2002) NSWCCA 520 at (252) Sinclair v The King (1946) 73 CLR 316 Walton v R (1989) 16 CLR 283 at (9), (24) and (31) Cases on ss 135 and 137 - Evidence Act R v Blick (2000) 111 A Crim R 326 R v Cook [2001] 123 A Crim R 506 at 577 (147) R v EM (2003) NSWCCA 374 R v Lodhi (2007) NSWCCA 360 at 174-177 R v Mundine (2008) NSWCCA 55 at 33 R v Serratore (1999) 48 NSWLR 101 at para 29 R v Shamouil (2006) 66 NSWLR 228 at 47 to 65 R v SJRC [2007] NSWCCA 142 R v Sood [2007] NSWCCA 214 at 26-43 R v Suteski (2002) 56 NSWLR 182 at 199 (116)
PARTIES:	Regina (C'Wealth) v Omar BALADJAM [No 43] 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; ; 2007/2395001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; 2007/2396001; 2007/2455001
COUNSEL:	G. Bellew SC; C. Donnell; Ms S McNaughton - Crown Mr N Williams SC - ASIO 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 Australian Government Solicitors 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: TUESDAY 26 August 2008

2007/2397001 - Regina v Omar BALADJAM [No 43]
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 to exclude evidence of statements made by Khaled Sharrouf – hearsay rule (s 59 Evidence Act 1995); s 61 of Evidence Act (competency); ss 90, 135 and 137 of the Evidence Act

1 HIS HONOUR: This is an application on behalf of Khaled Cheikho seeking, pursuant to s 61 of the Evidence Act 1995, to exclude statements made by Khaled Sharrouf on various dates between 19 August 2004 and 6 November 2005. Exhibit “A” on the voir dire is a schedule of all those statements. Originally, there were some 214 statements, although a number of these have now been eliminated on the basis that the Crown will not press them at trial. There remains, however, a very substantial number of statements to be considered.

2 Section 61 of the Evidence Act 1995 is in the following terms:

“61 Exceptions to the hearsay rule dependent on competency
(1) This Part does not enable use of a previous representation to prove the existence of an asserted fact if, when the representation was made, the person who made it was not competent to give evidence about the fact because he or she was incapable of giving a rational reply to a question about the fact.
(2) This section does not apply to a contemporaneous representation made by a person about his or her health, feelings, sensations, intention, knowledge or state of mind.
(3) For the purposes of this section, it is presumed, unless the contrary is proved, that when the representation was made the person who made it was competent to give evidence about the asserted fact.”

3 The original submission filed on behalf of Khaled Cheikho made the following statements by way of introduction:

“The Crown, in seeking to prove the commission of the offences charged, relies upon various statements made by the co-accused Khaled Sharrouf. Some of those statements will presumably be relied upon as admissions against Mr Sharrouf himself. It will presumably be argued also that such statements are made in furtherance of the conspiracy and, accordingly, are admissible against the accused, Khaled Cheikho, pursuant to section 87(1)(c) Evidence Act 1995. It is submitted that any such statements may not be admitted, since they violate the rule against hearsay.”

4 The submission proceeded on the basis that there was already (and would be further) material before the Court to demonstrate that Mr Sharrouf had been suffering from a mental illness during the period of the alleged conspiracy. The submission then addressed the “probability” that Mr Sharrouf's mental state was such that he would not have been capable of giving rational replies to questions about the facts asserted in the statements allegedly made by him.

Background – Sharrouf is found unfit

5 On 25 June 2008 I found that Khaled Sharrouf was, at that time, unfit to be tried. This was on the basis that medical and psychiatric evidence placed before me established that the accused Sharrouf was currently suffering from schizophrenia. It was against that medical background that I found he was unfit for trial. I pointed out in the decision (R v Khaled Sharrouf [No 2], paragraph 23) that the finding was confined to an assessment of his mental health situation at that precise point of time in June 2008. The finding expressly said nothing about his condition at any earlier point of time. A finding that a person is unfit for trial is not to be equated with a finding that a person was not, at an earlier point of time, competent to give evidence about a fact because he or she was incapable at that time of giving a rational reply to a question about that fact.

6 Against the background of the finding of unfitness, counsel for Khaled Cheikho undertook to provide the Court with evidence that would tend to show that Mr Sharrouf had been incompetent, in the sense provided for in ss 13(3) and 61.1 of the Evidence Act. This was the foreshadowing of an application on behalf of all the remaining accused. In effect, the accused sought to take forensic advantage of Sharrouf’s mental and psychiatric condition.

7 On 1 July 2008 Dr Olav Nielssen provided a report in relation to the contemplated application under s 61 of the Evidence Act 1995. In preparing his report, Dr Nielssen had been supplied with medical reports from Mr Sharrouf's general practitioner, Dr Alsayed, those reports running from 2 October 1999 to 25 October 2005. Dr Nielssen also had the medical records of a treating psychiatrist Dr Ishrat Ali. These were dated between 12 September 2002 and 27 October 2005. There were other medical records and documents, including copies of notes made by a psychologist, Natasha Langovski. I gather that these related to examinations in June 2004.

8 Dr Nielssen had been asked to give an opinion as to his perception of Mr Sharrouf's mental state during the period of the alleged conspiracy, that is the period 8 July 2004 to 8 November 2005. He, of course, had not been, in a professional sense, personally involved with Mr Sharrouf until mid-September 2005. The opinion, however, was stated in the following terms:

“The medical records confirm that the diagnosis of the chronic mental illness schizophrenia was made by a psychiatrist in 2002 and that Mr Sharrouf received treatment with antipsychotic medication from that time. When Mr Sharrouf was assessed by Ms Langovski in June 2004, he reported that symptoms of schizophrenia were present all the time and were only partly relieved by treatment with antipsychotic medication. When I interviewed Mr Sharrouf on 19 September 2005 I found him to have a significant communication disorder that was thought to be due to symptoms of a disabling form of schizophrenia. Hence in my opinion Mr Sharrouf was significantly affected by symptoms of schizophrenia during the period of the conspiracy.
From the information provided by his wife and an examination of the prescription records, it seems likely that Mr Sharrouf received consistent treatment with antipsychotic medication for at least part of the sixteen months prior to 8 November 2005. However, on the basis of the history provided to Ms Langovski, his symptoms were only partly responsive to treatment. Moreover it looks as though Mr Sharrouf was receiving prescriptions for the amphetamine-like appetite suppressants Duramine and Dospan from his general practitioner during 2003 and 2004, which are likely to have exacerbated symptoms of schizophrenia.
The presence of acute symptoms of schizophrenia and the effect of chronic schizophrenia on all aspects of Mr Sharrouf's intellectual function is likely to have had a significant impact on his perception of the events and the reliability of any statements he made in the period between 8 July 2004 and 8 November 2005.”

9 The Court was also provided with a report from the treating psychiatrist Dr Ishrat Ali. This is dated 15 July 2008. Dr Ali said he first saw Mr Sharrouf on 12 September 2002 when he was referred to him by the GP Dr Alsayed of Lakemba. Dr Ali said he had seen Mr Sharrouf on "several occasions" since then. Dr Ali prescribed medication. He said that Mr Sharrouf's symptoms showed some progress, but fluctuated. This was as a result of his taking medications irregularly. Later on his medication was changed to Zyprexa. This last time he saw Mr Sharrouf was on 27 October 2005. At that time, Dr Ali said his patient's symptoms were "under control" and he was on both Avenza (an antidepressant) and Zyprexa (an antipsychotic). Dr Ali expressed his current opinion in the following terms:

“As a result of his illness and its symptoms his judgment and ability to do things will be affected from time to time. This is because of the following reasons:
1. He will have hallucinations and delusional ideas which could affect his judgment and ability to appreciate the consequence of some of his actions.
2. As people with schizophrenia often have difficulty in making decisions, he will be more susceptible than a normal person to be influenced by the suggestions of other people.
3. His judgment will be clouded by his delusions.
As a result of that his competency was reduced, especially during the period from 2004 to October 2005."

A preliminary “comment”

10 I understand that there are other clinical notes and records that have not as yet been tendered before the Court. In addition, the Crown has not yet responded to the evidence filed on behalf of Khaled Cheikho. I determined however, that the Crown need not make an immediate decision about calling evidence at this time, because of an important preliminary point taken on the Crown's behalf. I will turn to that important preliminary point in a moment. It is appropriate, however, to note that I am by no means in a position to make any final decision in relation to the s 61 application because the evidence is not complete, nor has there been any opportunity to test the evidence at this stage. I will simply observe, in an entirely preliminary fashion, that the material filed thus far hardly could be said to establish, as it must do, that Mr Sharrouf was not competent to give evidence about any particular fact he may have asserted in any of the statements under challenge. The general nature of the observations made both by Dr Nielssen and Dr Ali highlight that there may be a real question over the reliability of any statements of fact asserted by Mr Sharrouf in the relevant period. It would seem, at first blush, they scarcely do much more than that.

11 The fact that an accused person, who has, for example, allegedly confessed to committing a crime, may have been, at the time of the confession, suffering from some form of unsoundness of mind or psychiatric disorder may, depending upon the circumstances, be of importance in considering the evidentiary value of the confession. It may, in some circumstances deprive it of all evidentiary value (Jackson v The Queen (1962) 108 CLR 51). The fact of mental illness does not, however, necessarily make evidence of the confession inadmissible (Sinclair v The King (1946) 73 CLR 316). This is because an insane person is not necessarily an incompetent witness. Persons who are intellectually handicapped or who suffer from disease or disorder of the mind are by no means necessarily incapable of telling, or admitting, the truth (R v Michael John Parker (1990) 19 NSWLR 177). Nor, it might be observed, are such persons necessarily incapable of giving a rational reply or making a rational remark about a particular situation. Here, of course, we are not concerned, as will be apparent, with confessions, but with statements of a much lower content and effect.

The Crown's preliminary point

12 The matter raised by the Crown plainly had practical consequences for the procedural aspects of the s 61 application. I shall identify the preliminary matter. The Crown pointed to the provisions of s 61(2) which I have set out above. By that time there had arisen a fairly clear agreement between the Crown and the lawyers for Khaled Cheikho concerning the nature of the material in the statements that would, in fact, be sought to be excluded. The Crown indicated that it did not intend to place any of the "objected to" portions of Mr Sharrouf's statements before the jury as evidence of the truth of those statements. In other words, it was not proposing to rely upon any of the statements for a hearsay purpose. The Crown submitted that the evidence would be sought to be used in two ways. First, as direct and non-hearsay evidence adduced, in connection with other circumstantial evidence, relevant to, and in proof of, the existence and scope of the alleged conspiracy. Secondly, the evidence would be tendered, not to prove the truth of anything stated by Mr Sharrouf, but simply as material going to or capable of reflecting upon his intention, knowledge or state of mind. If Sharrouf remained a party to the proceedings, the evidence would not be tendered against him as an admission, at least at this stage. Thirdly, if Mr Sharrouf were severed from the indictment, evidence of his actions and words would still be relevant on the basis that the Crown would seek to prove that he was one of the conspirators. But again, the particular evidence would not be sought to be used as an admission or for any hearsay purpose.

13 The Crown's preliminary point was that, as a consequence, there was no real legal basis for the s 61 application. The essential argument postulated that none of the statements were relied upon to prove the "existence of an asserted fact" as referred to in s 61 of the Evidence Act. Accordingly, s 61(1) had no application. Alternatively, the Crown submitted that if s 61(1) were engaged at all in relation to any of the statements, they each fell within the specific exemption provided under s 61(2).

14 Mr Waterstreet, who presented the arguments for Khaled Cheikho, made two specific responses. First, he argued that both ss 72 and 61(2) of the Evidence Act ought be read down and not applied literally. Counsel submitted that the common law concerns with the erosion of the hearsay rule ought apply to the interpretation of these sections of the Evidence Act. In addition, Mr Waterstreet argued that ss 135 and 137 of the Evidence Act ought be applied so as to exclude the evidence. This was on the basis (as argued in subsequent written submissions) that statements by Mr Sharrouf might properly be regarded as inherently unreliable, and that it would be unfairly prejudicial, both to him and to the other accused, if the evidence were to be admitted. The unreliability was said to derive directly from his mental condition.

15 These submissions were picked up by Mr Dalton on behalf of Mr Elomar. Mr Dalton accepted that concerns relating to the credibility or reliability of a witness whose evidence was sought to be excluded under s 137 had no place to play in the s 137 exercise, having regard to recent decisions of the Court of Criminal Appeal. (Those decisions, and the general thrust of the section, had been examined by me in earlier decisions, R v Baladjam [No 3] and R v Baladjam [No 8]). Mr Dalton submitted that an inherent weakness based on, for example, mental illness, might nevertheless be taken into account when assessing the issue of "unfair prejudice". In so doing, Mr Dalton submitted that the Court might consider matters going to the weight or reliability of the evidence that could not adequately be dealt with or addressed before the jury. Counsel pointed to a number of aspects that, in the present matter, might go to unfair prejudice. These included:

- The jury would either not have psychiatric evidence before them, or

- If they did, it would introduce an unnecessary and confusing side issue into the trial

- It would be difficult for the jury to assess the evidence for themselves

- The jury would not have the advantage of being able to see Mr Sharrouf in order to form an assessment of him

- There would be no way for the defence to test Sharrouf's "evidence".

16 Mr Dalton submitted that to allow this body of evidence before the jury would mean that, in relation to a number of the statements, there would be conversations between two people, neither of whom were before the jury or present as witnesses. For these reasons, Mr Dalton joined in Mr Waterstreet's argument about s 137. Mr Dalton also submitted that, to the extent that Sharrouf's statements might be seen as admissions, they should be excluded under s 90 of the Evidence Act 1995. In particular, it would be unfair to the other accused because they would have no ability upon the question of the admissibility of these conversations to challenge the truth of such utterances insofar as they were not in fact representative of Mr Sharrouf's state of mind, but rather an outcome of his mental illness.

Resolution of the issues

17 The first issue requires a determination of the purpose for which the Crown proposes to tender the evidence. The various statements by Mr Sharrouf are not to be tendered to prove the truth of anything he said, but to reveal the nature of the relationship between himself and the other accused. It will be relied upon to prove the level of the association between Sharrouf and the other accused. Its tender will show the depths and dynamics of that association. The evidence is to show, as well, the nature of the things that were discussed between the other accused and Sharrouf. On occasions, it will also be relevant to show topics that were not openly discussed between them. In this latter regard, the Crown will allege that a significant aspect of the alleged conspiracy was the need to avoid detection and adopt counter-surveillance techniques. Naturally, these were at a fairly unsophisticated level, according to the Crown case, but reticence on a particular subject may, in certain circumstances, speak, if not volumes, at least well above a whisper.

18 In a conspiracy case, the fact of association between people, the nature of the association, the common beliefs and topics they discuss between themselves, may all throw light on the question as to whether there is a combination for an unlawful purpose. The actions of the alleged conspirators may only be properly understood in the light of the extent and dynamics of the relationship. So too, in a particular case, where the defendants assert that their actions are completely innocent, considerable light may be thrown upon such a proposition by evidence demonstrating the nature of their relationship and the extent their common interests and association.

19 All this is, in my opinion, relevant to the first point at issue. It may readily be accepted that the evidence the Crown seeks to lead is relevant to facts in issue in the trial, or, at least, to facts relevant to facts in issue. In my opinion, that is clearly the situation.

20 This conclusion leads to the second issue: The Crown does not seek to rely upon the statements of Mr Sharrouf for the purposes of any fact they may assert. Indeed, in the main, the statements do not assert, in any event, facts of this kind. If that be the situation in general terms, then s 61 has no application to the general body of statements the Crown intends to adduce. Although it will be necessary for me to examine individual statements and to comment on their relevance and the way in which they are to be used, generally I accept that the statements are admissible as falling outside the hearsay rule, and that s 61(1) can have no application to them.

21 The third issue arises as an alternative to the first and second. This is the proposition that the evidence, in any event, is properly categorised as an exception to s 61(1) of the Act. In this area, this is so because of the exception created by s 61(2) of the Act. On this point, I accept the submissions of the Crown in preference to those of the accused. Section 72 of the Evidence Act (which is in identical terms to the relevant portions of s 61(2) of the Act) relevantly provides for an exception to the hearsay rule. Although there may have been some controversy at common law, at least in the mind of learned academic writers, the common law had, in general terms, accepted the admissibility of out of court statements tending to prove the maker's knowledge intention or state of mind where that knowledge intention or state of mind is a fact in issue, or a fact relevant to a fact in issue (Walton v R (1989) 16 CLR 283 at (9), (24) and (31); Kamleh v R [2005] 79 ALJR 541; [2005] 213 ALR 97; [2005] HCA 2).

22 In Walton, a murder case, evidence was led as to statements made by the deceased to witnesses to the effect that she was going to meet the accused at a time relevant to when she died. The prosecution led the evidence to prove the intention or state of mind of the deceased. There was also evidence that the accused had said that he was going to meet the deceased. Mason CJ said (at 288):

“The hearsay rule applies only to out of court statements tendered for the purpose of directly proving that the facts are as asserted in the statement. Generally speaking, evidence of out of court statements relied on for another purpose is not excluded by the rule. Thus, evidence of a relevant out of court statement is admissible evidence of the maker's knowledge or state of mind when he made the statement in a case where such knowledge or state of mind is a fact in issue or a fact relevant to a fact in issue...similarly, a person's statements or declaration or an accepted means of proving his intentions in circumstances where it is material to prove what those intentions were. As Mellish LJ remarked in Sugden v Lord St Leonards (1876) 1 PD 154 at 251:
'Wherever it is material to prove the state of a person's mind or what was passing in it, and what were his intentions, there you may prove what he said.'
The point is that the making of the statement is itself evidence of the author's intentions at the time the statement was made. Evidence of the making of the evidence may be given by the author himself, or, in the case of an oral statement, by any person who heard it made.”

23 In the same case, Wilson, Dawson and Toohey JJ said (at 300):

“That evidence may, of course, take the form of conduct on the part of the person whose state of mind is in question from which the state of mind might be inferred. But it might also take the form of statements made by the person or by another from which a similar inference might be made.”

24 And later:

“As we have said, not all conduct involving an assertion, express or implied, is treated as hearsay and held to be inadmissible in evidence. If it were, the available evidence in many cases would be seriously depleted. The distinction to be drawn is that to which we have referred, namely the distinction between evidence of conduct which, even though it may contain an assertion, is tendered as a relevant fact or a fact relevant to a fact at issue and is therefore admissible and evidence of conduct which has no probative value other than as an assertion and is therefore not admissible.”

25 Deane J (who was in dissent) relevantly observed at (31):

“I agree that evidence of a relevant out of court statement is admissible to prove the maker's knowledge or state of mind in a case where that knowledge or state of mind is itself a fact in issue or provable...as a fact relevant to a fact in issue.”

26 In a recent decision of the Court of Final Appeal of Hong Kong Mr McHugh NPJ (with whom the other members of the Court agreed) made a number of illuminating remarks on the hearsay position at common law. (The decision may be found under the following citation: Oeng Hengky Wiryo v HKSAR (2007) HKCFA 8, 9 February 2007). His Honour, after explaining the emergence and rationale for the hearsay rule said at paras 39 and 40:

“39. To determine whether the hearsay rule has been breached, it is necessary to determine the purpose for which evidence of an out of court statement is tendered. An out of court statement made in the absence of a party is not necessarily inadmissible. As long as its contents are not relied on to prove a fact recited or asserted, it will be admissible if it tends to prove a fact in issue or a fact relevant to a fact in issue. As Mr Justice Ferguson explained in ' Hearsay Evidence ' (1927) 1 ALJ 195 at 196 in a passage cited with approval by Gleeson CJ and myself in Kamleh v The Queen (2005) 79 ALJR 541 at 544:
'The hearsay rule does not forbid the proof of what somebody said out of court. What it does forbid is the proof of a fact by telling what somebody said about that fact out of court, a very different matter. Whether the evidence in any particular instance is admissible or not depends upon the question what fact it tends to prove.'
40. In Subramaniam v Public Prosecutor (1956) 1 WLR 965 at 970, in a passage that has come to be regarded as a classic statement of the hearsay rule, the judicial committal of the Privy Council said:
'Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.'“

27 McHugh J gave examples of situations where evidence of out of court statements will not constitute hearsay. Thus, evidence as to what is said by a party or person out of court will be admissible to prove that person's state of mind where it is a relevant issue. Indeed, evidence as to what is said to a party or a person out of court will also be admissible to prove that person's state of mind where it is a relevant issue. His Honour noted that the classic example of this situation occurred in Subramaniam itself where the judicial committee held, contrary to the ruling of the trial judge, that the hearsay rule would not be infringed by evidence of threats made by terrorists to the accused. The evidence had been tendered to prove that the accused had acted under duress in having illegal possession of ammunition. McHugh J then dealt specifically with both Walton's case and Kamleh v The Queen.

“44. Evidence that a person had said that he or she was intending to meet somebody or to do something may be evidence of conduct that is relevant to an issue and therefore admissible because a statement of intention is admissible to prove that the person did the intended act. In Walton v The Queen ...a majority of the High Court of Australia held that, where the accused had said that he was going to meet the deceased, evidence that the deceased had told a witness that she was going to meet the accused was admissible to prove that she had in fact met him. As Wilson, Dawson and Toohey JJ said (at 300):
'Her intention at that time was relevant because it might be inferred that she acted in accordance with her intention.'
45. Evidence of an out of court statement may also be admissible to prove a person's knowledge of facts for the purpose of establishing that that person was in a place at a particular time. From proof of that fact and other evidence, it may be possible to infer that another person was also at that place at that time. In Kamleh , the High Court of Australia unanimously held that no breach of the hearsay rule occurred where, on the trial of the accused for murder, the prosecution tendered evidence that Z had told another person that the television set in the murdered person's apartment had been turned up to its highest volume immediately before the killing. Evidence of this conversation was tendered to prove that the accused was also present at the killing. To that end, the prosecution proved that, when the bodies of the deceased were found, the television was in fact turned up to full volume. Hence, Z's knowledge of this fact indicated that he was present in the deceaseds' apartment that night. Moreover, his presence also tended to prove that the accused was present in the apartment at that time because the accused had claimed that he was always in Z's presence at relevant times on the night of the murder.”

28 Finally at 53, his Honour said:

“The purpose of this extended discussion of hearsay cases is to show that, in a variety of contexts, out of court statements may be admissible in evidence, whether or not they were made in the presence of a party affected by its admission and to show that inferences may properly be drawn from those statements both to prove a fact in issue or to provide a factual foundation for inferring a fact in issue. In some cases, the out of court statement may be used alone or in conjunction with other facts or statements to disprove a fact.”

29 Whatever may have been the situation at common law, the position in this State is now made clear by the terms of s 72 of the Evidence Act. In R v Clark (2001) 123 A Crim R 506 at 577 (147), Heydon JA (with whom Bell J agreed) said:

“The second question is the operation of exclusionary rules. The only relevant exclusionary rule was the hearsay rule (s 59). So far as the impugned evidence was hearsay, it was rendered admissible by s 72 that provides:
'The hearsay rule does not apply to evidence of a representation made by a person that was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind.'
The appellant submitted that in 'dealing with the admissibility of evidence under s 72, some restrictions must apply, otherwise such a broad interpretation would abrogate the use of the hearsay rule (see notes 72.1, Odgers, Uniform Evidence Law (Fourth Edition 2000).)' That passage opposes:
‘the potentially wide interpretation which could be given to the terms “knowledge” and “state of mind”...to include “belief” or “memory”...[Such] an interpretation will effectively abrogate the hearsay rule as contained in s 59.’
That suggested vice is not inherent in the construction of s 72 which is to be applied in rendering admissible the evidence of the deceased's statements to prove her state of mind in this case. The appellant was unable to suggest any other relevant construction of s 72."

30 In Kamleh v The Queen, Gleeson CJ and McHugh J in their joint judgment said at (23), after discussing Walton's case:

“There being no challenge to Walton , it is unnecessary to pursue the significance, if any, of the difference in the majority reasoning. It may be noted that, in those Australian jurisdictions where the Uniform Evidence Act applies, it is now provided by a statute that the hearsay rule does not apply to evidence of a representation made by a person being a contemporaneous representation about the person's intention.”

31 In the same decision Kirby J said at (28):

“Because in this appeal there was no direct challenge to the reasoning of Mason CJ in Walton and because the residual common law rule has been overtaken in four Australian jurisdictions by the Uniform Evidence Acts , I would not struggle in this instance to resolve the point concerning the statement of intention of Mr Zappia.”

32 (His Honour went on to hold that the prosecution case against the appellant was compelling, and his conviction was inevitable on the admissible evidence. No miscarriage of justice was involved.)

33 These statements, emanating from judges of high stature, fly directly in the face of Mr Waterstreet's submission. The written submissions suggested, somewhat audaciously, that Kirby J's remarks were "incorrect", although the submission made no reference to the remarks of the Chief Justice and McHugh J. Secondly, the oral submissions suggested that more weight be given to the obiter remarks of Levine J in R v Polkinghorne (1999) 108 A Crim R 189, 193 at (25) where his Honour had expressed some doubts about the extent of s 72 of the Evidence Act, having regard to the common law position. In my opinion, there is no warrant for giving s 72 of the Evidence Act a narrower interpretation than is conveyed by the plain and perfectly clear language used. The remarks of Levine J in R v Polkinghorne understandably reflect no more than the cautious response of a mind attempting to come to grips with the new legislation after years of immersion in the common law. The decision of Grove J in R v Barbaro and Rovere (2000) 112 A Crim R 551, 559 at 42 is dealing with a specific problem and does not warrant or justify a narrow reading of the section.

34 Similarly, the decision of R v Hannes (2000) 158 FLR 359, 441-2 at (480) needs to be seen in the context in which the particular point was decided. There, Studdert J made it clear that the document sought to be tendered by the defendant at trial was a self-serving statement. No matter how the argument was presented, the real purpose of the tender was not to show the state of mind or intention of Mr Hannes, but rather it was to persuade the tribunal of fact that the fictitious Mr Booth really existed.

35 Finally, there is little point in my attempting to analyse and dissect the remarks of the members of the High Court in Kamleh v The Queen. It is true that some misgivings were articulated concerning the decision of Mason CJ in Walton. But as I have said, the Evidence Act has overtaken the common law situation in a very clear manner. The real concern expressed by some members of the High Court, and academic writers, is that, in Walton, the intention evidence may have been used directly to show that the accused’s intention had been carried out. As I will endeavour to show in the present matter, that concern simply does not arise in connection with the Sharrouf statements.

36 This discussion has taken me some distance away from the section under consideration. I shall conclude this part of the decision by making a few brief comments about the operation of s 61 of the Evidence Act. Those remarks may be appropriate at this point, and helpful in understanding an examination of a number of the particular statements made by Mr Sharrouf. As I have said, these will be examined shortly.

37 The Evidence Act assumes that some previous representations will be admissible as an exception to the hearsay rule contained in s 59 of the Act. The thrust of s 61 is to focus, first, on representations of this kind that are sought to be tendered to prove an asserted fact ("I was at X's house when the shooting occurred"). Secondly, the section prohibits the use, for example, of an admission of this kind when the representor was "incompetent" i.e. incapable at the time of the statement of giving a rational reply to a question about "the fact". (The fact intended to be asserted). (See Cox v State of New South Wales (2007) NSWSC 471 per Simpson J at (11)-(17) for an analogous situation in the civil law.) The section applies, of course, not only to admissions, but to all previous representations where a fact has been asserted.

38 Thirdly, there is a presumption about competency. The onus falls on the person asserting lack of competence to prove that, at the time the representation was made, the representor was not competent to give evidence about the asserted fact. Since this may require an examination of a person's competence at an earlier and particular point of time, it is a difficult onus to discharge, although the level of proof is merely on the balance of probabilities. Fourthly, the section excludes from its ambit contemporaneous representations made by a person about his or her health, feelings, sensations, intention, knowledge or state of mind ("I am intending to go to Melbourne"). Thus, in a given situation, a witness might be unable to give evidence about his earlier state of mind (incapable of giving a rational reply about that fact), but, if relevant to the issues, an out of court statement he or she made on that very topic at the earlier point of time may be admissible. This situation arises from the combined operation of s 13, s 61 and s 72 of the Evidence Act.

39 Since the introduction of the Evidence Act, evidence has been allowed in under s 72 of the Act dealing with intention (R v Serratore (1999) 48 NSWLR 101 at para 29) and in R v Clark on "state of mind". (See also Ung [2000] 112 A Crim R 344 for a case that “straddles” both the common law and the Evidence Act). These cases stand directly in the way of the submissions filed on behalf of Khaled Cheikho. In the present case, statements which, by their very terms, are capable of reflecting Mr Sharrouf's state of mind, knowledge and intention, are relevant, on a non-hearsay basis, together with other evidence, in relation to the existence and scope of the conspiracy. The fact that the words were used, and the words themselves, are relevant on this basis They are admissible in this way against all the accused. They are also, however, relevant to his own actions and to the intentions and state of mind underlying those actions. The Crown does not, however, rely on these statements as to the truth of any fact intended to be asserted by Sharrouf. Indeed, the majority of statements do not assert any facts at all. If Mr Sharrouf is granted a separate trial, evidence of his statements and actions will remain nonetheless relevant in the present trial, on the basis that the Crown alleges that he was at all times a co-conspirator in relation to the alleged conspiracy.

Specific Examples

40 I shall now set out a number of specific examples and make a brief comment about the nature and relevance of each of them.

Schedule of Statements made by Sharrouf

(The text highlighted in bold font in the Summary of Statement column are the representations made by Mr. Sharrouf being objected to upon a hearsay basis.)

No.	DATE	TI/LD Reference	PARTIES	SUMMARY OF STATEMENT	Page No.
1.	19/08/04 4:44:13 PM	TI - E030245/00/00	KS to M Sharrouf	KS to M. Sharrouf - pick me up from Hillard St. 'bc something is going on'	1
2.	20/08/04 5:01:36 PM	TI -E03026/00/00	KS to M Sharrouf	KS to M. Sharrouf - M. Sharrouf said he had arrived at a place where someone is buying a land cruiser and KS said he [whomever is buying the car] is going to take us somewhere in it and to tell him to not forget 'we are going camping next week' in the four wheel drive.	3
3.	23/08/04 6:12:37 PM	TI- E03024/00/00	KS to UM	UM to KS (ind) but then UM asks if KS wants anything, KS "anything that's not Jewish, anything I'll come".	5
4.	25/08/04 9:30:58 PM	TI - E030245/00/00	KS to UF and then to Hasan	KS to UF and then to Hasan - KS tells Hasan to put on TV, Channel 2, it's very good, on for an hour but I forgot to tape it.	9
5.	13/09/04 2:16:44 PM	TI - E03152/00/00	KS to H Sharrouf	KS to Hoda Sharrouf - 'will be back tonight or tomorrow morning'	12a
6.	19/09/04 5:44:18 PM	TI - E03025/00/00	KS to M Sharrouf	KS to M Sharrouf 'Omar is coming over early', MS didn’t know who Omar was, KS 'I don't want to say, Omar…..you know the one who gave you the call to duty, we are going swimming, early, don't you want to come?'.	13
7.	04/10/04 6:06:31 PM	TI - E03177/00/00	M Sharrouf to KS	MS asking if they took a certain folder that he had something in, KS said no they didn't, MS said to burn it and KS said "why are we talking on the phone? Also did Izzydeen call you yet, he is going to Melb. Tonight”.	15
8.	05/10/04 4:26:45 PM	TI - E03174/00/00	KS to Ibrahim	KS said Abdul Rakib and Khaled were there all morning at his house, they woke him at 9 am and stayed until 2 pm.	17
9.	20/10/04 4:22:20 PM	TI - E03175/00/00	UM then MC to Nettleton/ Sharrouf	MC asks why they don't see him in Tarawih, MC says Badr told him to pick KS up but he forgot the past few days, apologises.	21
10.	21/10/04 6:59:39 PM	TI - E03174/00/00	KS to M Sharrouf	MS says at home with Omar and Khalil having a BBQ, KS asks are you coming over, Izzydeen is coming over.	27
11.	21/10/04 7:11:55 PM	TI - E03175/00/00	KS to UM	Discussing re a program on terrorism, KS says it’s a laugh, they're in another world, it doesn't exist, nothing is ever going to happen, but they're just sick in the head, …wasting their time and money, "let the people accept that we're this but we're doing it for a proper cause".	29
12.	14/11/04 5:09:06	TI - E03174/00/00	M Cheikho to KS	KS asked if MC is at the feast prayers today, he said yes, KS said he looked for him and couldn't see him or KC, could only see Hasan, MC said KC not there, MC said "we'll come past after evening prayers".	41
13.	16/11/04 8:02:47 PM	TI - E03174/00/00	KS to M Sharrouf	KS asked MS if he was coming over bc Hasan was there and Hasan wanted to see MS, MS says he is coming now.	45
14.	16/11/04 9:07:35 PM	TI - E03174/00/00	Fadi Husseini to KS	KS tells Fadi he has Hasan and his brothers over.	47
15.	29/12/04 5:00:34 PM	TI - E03174/01/00	MC to KS	KS having probs with computer, Omar agrees to help fix it, arranging a meeting, MC doesn't know if he can go, they discuss where they can go swimming, KS downloading 1000's of cassettes, MC says don't bother bc he will do it.	57
16.	03/01/05 12:26:58 PM	TI - E03361/00/00	KS to UM then to Elomar	EM asks where KS is going, KS says to Bilal, EM says should I come now or 1 o'clock and is there a prob if I bring Abdul Rakib, KS says to bring him.	61
17.	11/01/05 11:43:08 AM	TI - E03187/01/06	KS to UF then Hasan	KS asks Hasan if he wants to come to Qld for a holiday, KS says he is in Melbourne and coming back in a year, 10 years or going to Lebanon if ASIO is listening.	63
18.	12/01/05 6:30:02 PM	TI - E03174/01/00	Tara Nettleton/Child to KS	KS says they might come back tomorrow tonight, and if ASIO's listening, we don't know; don't say anything on the phone.	69
19.	13/01/05 7:31:47 PM	TI - -E03174/01/00	KS to Fadi Husseini	FH asks how KS's trip was; KS says he will tell him when he sees him.	75

41 I have elsewhere described the nature of the Crown case. The Crown alleges that there is a combination between these men. It is necessary to examine carefully, for the purposes of the Crown case, the actual association between them. This will involve not merely evidence of what they do and where they go together. There will be a considerable body of surveillance evidence to demonstrate those matters. It will also involve analysing what they say to one another, what they say about one another, and what they say to third parties about themselves and one another. In respect to these last matters, the words actually spoken will be more important than the facts, if any, described in those conversations.

42 The words used will often convey approval, disapproval, dissatisfaction or pleasure. The conversations may embrace matters of everyday experience. They may embrace matters involving religious notions. They may involve matters of a political kind.

43 As I say, the Crown needs to prove a combination between the men and it needs to prove a combination of a very specific kind, namely that contemplated by the charge in the indictment. The general complaint by the defence that there are simply too many conversations sought to be relied on, and that virtually any conversation may be relevant to the Crown case, is met by the proposition that the Crown is entitled to adduce in evidence conversations that are relevant to the fact of combination, to the nature of the combination and, ultimately, to the asserted purpose underlying the activities of each of the accused said to be in connection with the combination. Of course, I do not suggest that the Crown should necessarily lead evidence of every conversation that is capable of being relevant in this way. The trial will never end if the Crown takes such a position. It is partly for that reason that I have suggested that there be a meeting between the Crown and the defence in an endeavour to limit, circumscribe and delineate the scope of the evidence to be led in the trial.

44 To return to the conversations and the relevance of those to the Crown case: Factors relevant to the existence of the combination in the present matter, according to the Crown case, include the level of association, the type of association and the nature of common interests shared between those associating. Once again, the words used in conversations can often demonstrate the level and dynamics of the association quite apart from the truth of the matters discussed in those conversations. An obvious example is in the area where the discussions are about the need for covert behaviour to avoid surveillance. Another area of obvious relevance is the continued discussion about sharing material recorded from television programmes or downloaded from computers. The very talk of sharing of commonly admired material is relevant both to the existence of the combination and to the nature of the activities carried out pursuant to the combination. As I have said in earlier judgments, the defence case is likely to be that the Crown has simply misunderstood and overreacted to a number of innocent activities. The defence case will identify that young Muslim men are very concerned with world affairs and political behaviour in this country. The defence case will be that many of the alleged "overt acts" are quite capable of an innocent explanation, against the background of these well-motivated and justified Muslim concerns. In this respect, also, the evidence of association, type of association, level and dynamics of association are relevant to rebut the defence case and to establish the Crown case beyond reasonable doubt.

45 It may be said that the Crown case begins with evidence of individual accused carrying out activities that might be said to have a suspicious content. For example, the purchasing of laboratory equipment, chemicals, ammunition and the like. The Crown case then focuses upon the fact that many of these activities are being carried out in an extremely covert and secretive way. There are, for example, false names, false mobiles and a high level of counter-surveillance activity.

46 The Crown case asks: What does all this behaviour point to? The evidence then descends to a considerable amount of detail involving surveillance, telephone intercepts and listening device material. As I have indicated, this will often show what the accused are doing both individually and together. It will also focus, however, on what they say about what they are doing either singly or collectively. Once again, evidence of their actual words (what they say to each other) is just as relevant as their conduct as being capable of reflecting in a circumstantial way, the final conclusion the Crown will ask the jury to draw when all the material is assembled together to present a final landscape. In addition, the fact that certain of their activities are not mentioned in their conversation will give an indication that those particular activities are themselves intended to be covert and secretive. This is, for example, the position on the "training camps" in remote parts of New South Wales.

47 Finally, there is the material that is found in the possession of the accused either at their homes, in their motorcars (or vehicles associated with them), or on their computers. According to the Crown case, this material shows a surprising degree of commonality. The Crown case is that the nature of the material is capable of reflecting once again upon the existence and scope of the combination. It is also available to rebut a suggestion that the activities of the accused in buying or acquiring, or attempting to acquire, laboratory equipment, chemicals and ammunition is entirely innocent.

48 I have, of course, simply been addressing the Crown case. I have been viewing the material from the perspective of the Crown. It is necessary to do this in order to identify the purpose for which evidence is to be led, and to understand the nature of the evidence in terms of its relevance under s 55 of the Evidence Act. I do not wish to suggest from this analysis that I agree with the Crown case. The accused are entitled to the presumption of innocence. This recitation of the Crown case is not intended to convey my acceptance of any of the facts asserted in the Crown case. The tribunal of fact in this matter is the jury to be assembled later in the year. As the trial judge, my concern at this stage is merely to adjudicate upon the admissibility of evidence, and to determine whether evidence should be led before the jury or excluded.

The illustrations in Exhibit “A”

49 There were approximately twelve illustrations in Exhibit “A”. These were examined at considerable length in the debate between the parties. I have been invited to comment on each of these with a view to establishing a template for the reception or rejection of the remaining conversations in Exhibit A. In particular, my task is to determine whether those statements fall outside of s 61 of the Evidence Act on either or both of the bases identified by the Crown. In my opinion, all of the twelve illustrations are admissible as statements by Khaled Sharrouf relevant to the existence and scope of the conspiracy. They are not tendered for a hearsay purpose, that is to prove the truth of any fact that may be asserted by them. Consequently, they fall outside of the control factor represented by s 61(1) of the Act. They are, in any event, each statements that may accurately be described as "contemporaneous representations" about Khaled Sharrouf's feelings, intentions, knowledge or state of mind. For this reason also, they do not fall under the control factor in s 61(1).

50 I will not examine them each in detail. I will simply comment on four or five of the illustrations. Illustration 4 has Khaled Sharrouf speaking to Hasan. He tells Hasan to put on the TV. He tells Hasan to watch channel 2. He says:

“It's very good, on for an hour but I forgot to tape it.”

51 This shows, obviously enough, a close association between the two men. It shows, by virtue of the words used, an association with shared interests where one appears to be keen to have the other watch a show on television that reflects a common interest. The words suggest an association where one will tape a programme for the other so that the shared interest can be mutually enjoyed. It reflects on both the level and dynamic of their association. All this emerges, however, from the words used. The Crown does not intend to prove that they did each, in fact, watch the same programme on that night. The Crown does not intend to prove that Khaled Sharrouf forgot to tape the programme. Those matters would be quite irrelevant in any event. What is relevant is the nature of the association because it is capable of reflecting upon whether, having regard to the activities of the two men, there is a combination between them for a particular purpose. The evidence is purely circumstantial and not, in any sense, confessional. The words used show, objectively, that there is a bond of association between them. The evidence is capable of being relevant to the depth of the association in the way I have indicated. In addition, it may be properly described as a contemporaneous representation about Khaled Sharrouf's feelings, intention, knowledge or state of mind. Given the context of the conversation, the expression "I forgot to tape it" may be properly said to be a contemporaneous representation. But it is, in any event, a statement tendered for a non-hearsay purpose.

52 Illustration 7 has Moustafa Sharrouf asking if they took a certain folder that he had something in. Sharrouf says, "No, they didn't." Moustafa said to burn it and Khaled said, "Why are we talking on the phone? Did Izzydeen call you yet, he is going to Melbourne tonight."

53 Once again, the Crown does not seek to prove that Mr Atik was going to Melbourne tonight, at least not by virtue of this conversation. What is sought to be proved is the association between Khaled Sharrouf and Atik. The words display a knowledge of the movements of the Melbourne associate. In any event, the statement is a contemporaneous representation as to Khaled Sharrouf's knowledge of Atik's movements. That is the relevance of the material. It is not relevant that Atik went to Melbourne on that night (as opposed to any other night).

54 Illustration 8 has Khaled Sharrouf saying to another man that "Abdul Rakib and Khaled were there all morning at his house, they woke him at 9am and stayed until 2pm".

55 Again, the evidence is not tendered to prove that these facts occurred. The fact that they were said evokes the proposition that Sharrouf approved of these people being at his house during this extended period.

56 Illustration 11 occurs in the context of a discussion regarding a programme on terrorism. During the course of this conversation he says to the other person, "Let the people accept that we're this, but we are doing it for a proper cause." The Crown does not seek to tender this as some type of admission by which Sharrouf confesses to being a terrorist or a person who espouses terrorist notions. The Crown suggests that the statement itself is relevant, in a non-hearsay manner, to go in proof, together with other evidence, as to the existence of a conspiracy. Secondly, given that there is an association between Sharrouf and a number of the other defendants, the statement is admissible as a contemporaneous representation of his state of mind.

57 Illustration 12 has Khaled Sharrouf asking Moustafa Cheikho if he was “at the feast prayers today”. Cheikho said he was. Sharrouf said he looked for him but couldn't see him or Khaled Cheikho, but could only see Hasan.

58 The words used themselves are capable of saying something about the association between the three men. It is an association that involves a religious and communal overtone. It is one where the words demonstrate the men expect to see one another at such functions and are disappointed if they do not associate on those occasions. In addition, it is a contemporaneous representation as to the state of mind or knowledge of Sharrouf.

59 Finally, I will mention illustration 15. Here, Moustafa Cheikho speaks to Khaled Sharrouf. The latter tells the former that he is having problems with his computer and that Omar has agreed to help fix it. They discuss arranging a meeting. Cheikho "doesn't know if he can go”, they discuss where they can go, swimming. Sharrouf speaks of downloading “thousands of cassettes”.

60 It is clear that the words used themselves are capable of saying something quite probative about the nature of the relationship between Sharrouf, Moustafa Cheikho and Omar. The words portray an association that involves meeting together, swimming, sharing cassettes and arranging for computer problems to be fixed amongst themselves. In addition, the statements are contemporaneous representations of knowledge, intention and state of mind.

61 I appreciate that endless debate could occur in relation to each of the individual calls. The length and complexity of Mr Waterstreet's written submissions show that this is so. My analysis clearly allows that, with the exception of perhaps seven or eight conversations, the whole of the material in Exhibit “A” is admissible on either or both of the two bases I have identified. I will leave it to the parties to determine the final selection of material to be presented before the jury.

62 I shall now turn to consider whether any of the material should be excluded on any other basis.

Exclusion of evidence on other bases

63 There remains only to consider the possible exclusion of Mr Sharrouf's statements under s 135, 137 and s 90 of the Evidence Act. Section 135 of the Evidence Act is in the following terms:

“ 135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a part, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time.”

64 Section 137 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.”

65 "Probative value" is defined in the dictionary to the Evidence Act in the following terms:

“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.”

66 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.

67 The section requires the Court to consider first, the probative value of the evidence. 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; Papakosmos v R (1999) 196 CLR 297; R v Blick (2000) 111 A Crim R 326; R v E M (2003) NSWCCA 374; R v Yates (2002) NSWCCA 520 at (252)).

68 In R v Suteski (2002) 56 NSWLR 182 at 199 (116), Wood CJ at CL (with whom Sully and Howie JJ agreed) pointed out that the prejudice to the defendant of which each of ss 135 and 137 speak is not the simple fact that the evidence may advance the Crown case or weaken the defence case. Rather, it means damage to the defence case in some unacceptable way, for example, by provoking some irrational, emotional or illogical response, or by giving the evidence more weight than it truly deserves. There must be more than a hypothetical risk of it being unfairly prejudicial in this way - the risk must be a real one: R v GK (2001) 53 NSWLR 317 at 324.

69 It is now well settled that it is not open to a trial judge, in assessing the probative value of any piece of evidence (for the purposes of s 137 of the Evidence Act) to evaluate the reliability or credibility of the witness who gave the evidence (R v Shamouil (2006) 66 NSWLR 228 at 47 to 65; R v Lodhi (2007) NSWCCA 360 at 174-177; R v Sood (2007) NSWCCA 214 at 26-43, and R v Mundine (2008) NSWCCA 55 at 33. In the last mentioned case Simpson J (at 33) with whom McClellan CJ at CL and Grove J agreed said:

“That is, 'probative value' is not to be determined by the weight that might be given to any piece of evidence. What is to be considered is the role that piece of evidence, if accepted, would play in the resolution of a 'disputed' fact - or the contribution it might, if accepted, make to that resolution. Apart from anything else, to make the assessment of probative value on the basis of the perceived credibility or reliability of the witness through whom it is given, or perceived weakness in the evidence, would be to attempt to anticipate the weight the jury would attach to it, a task to be undertaken by the jury when all the evidence is complete.”

70 See also R v SJRC [2007] NSWCCA 142 where the Court of Criminal Appeal held that a Judge had erred in rejecting evidence under s 137 because he thought it was "ambiguous".

71 Mr Dalton, however, submitted that the following passage from Simpson J's decision was apposite. Her Honour had said at para 44:

“Although it is not open to a Court performing the balancing exercise set by s 137 to take into account, on the assessment of probative value questions of the weight of the evidence, that is not so when assessing the issue of asserted 'unfair prejudice'.”

72 Both the situation in Mundine itself, and that demonstrated by an earlier decision of her Honour (R v Cook [2004] NSWCCA 52), are instructive in understanding Simpson J's remarks.

73 In Cook the accused had been charged with a sexual offence involving violence against a female. The Crown had sought to lead evidence that, following the offence, the accused visited another female at her home. This was a woman with whom he had previously been in a relationship but in respect of whom there was in existence an AVO restraining him from contacting her. While he was at this woman's home, the police arrived and the accused hid himself in the ceiling. At trial the Crown had sought to rely on this behaviour as evidence of consciousness of guilt.

74 The dilemma posed for the accused was that, if that evidence were called, he would be forced to provide an explanation for his conduct. If he did not, the jury might well draw an inference that his conduct, in hiding when the police approached, showed a consciousness of guilt of the offence with which he was charged. The true explanation for his behaviour, on his case, was that he was well aware that he was guilty of a different offence, namely one of breaching the AVO relating to the second woman. But giving that explanation before the jury would expose to the jury his criminal history and, more prejudicially, would disclose that the AVO related to sexual violence towards a female, the very charge he was facing in the instant trial.

75 The "dilemma", as I have described it, could simply not be solved other than by excluding the evidence under s 137. Its probative value was plainly outweighed by the prejudice that would inevitably flow to him if the true circumstances were revealed. Unusually, directions would not have been sufficient to correct the situation. Indeed, they probably would have made it worse. It will be seen, accordingly, that in Cook's case it was not the unreliability of the evidence that led to the unfair prejudice. The unfair prejudice arose as a kind of collateral damage arising from the case the accused would have been forced to present before the jury.

76 In Mundine, two woman had separately identified the accused as the person who had broken into their home and assaulted them. A remark made by a police officer to the first woman prior to the identification process involving her raised the prospect that she may have thought the photographic array comprised people all of whom were known to the police as "local offenders". To cross-examine her on that matter, however, might have conveyed the impression to the jury that the accused had a criminal history for the very kind of offence with which he had been charged.

77 The second woman, it was thought, may have been prompted by the first woman prior to her separate act of identification. The exclusion of the first identification, however, would have made cross-examination of the second woman's position difficult, if not impossible. It would have revealed that there had been an earlier identification by the first victim, a fact otherwise unknown to the jury.

78 Therein lay the possible unfair prejudice. It was not the unreliability of the evidence. Indeed, the Court of Criminal Appeal made it clear the trial judge had been in error in purporting to find the identification evidence unreliable and the section thereby engaged. It was in that context that her Honour made the remark relied upon by Mr Dalton. It appears in her Honour's judgment at paragraph 44, as I have said. Having observed that questions of the weight of the evidence could be taken into account on the issue of asserted "unfair prejudice" her Honour said:

“On the voir dire, Ms Vollmer (the first victim) was cross-examined about the possible effect on her of words 'local offenders'. And Ms Lanz was cross-examined about the possible effect on her of knowing that Ms Vollmer had made an identification. Both vigorously denied any such effect. The cross-examination had little, if any, impact.”

79 Simpson J thought that similar responses might be expected at trial. Further, if the offending words were excised, it probably would have made little difference. Her Honour observed "either way there was no unfair prejudice". Accordingly, the Court found that the probative value of the evidence of each witness, leaving aside considerations of reliability or credibility, was quite high. With respect to the evidence of the first victim, the danger of unfair prejudice was assessed to be very low indeed. In that regard Simpson J saw the evidence as highly probative and not likely to be weakened by attack at trial. The risk of collateral unfair prejudice was consequently “very low indeed”. Simpson J also took into account the ability to delete certain words from the evidence, and the Court’s ability to give directions, both being practical counters to unfair prejudice.

80 It will be seen from these illustrations that prejudice of an unfair kind may arise in varying contexts and often unexpectedly. These two cases well make the point. But, for present purposes, there is no suggestion that potential unreliability (for example, relating to identification evidence) is to be ignored in relation to the first part of the exercise, but then brought to bear on the second part so as to lead to some kind of automatic exclusion. Probative value, however, may be taken into account when assessing the issue of asserted "unfair prejudice", but the unfair prejudice of this kind will normally be of a collateral kind, as it was in the two cases under consideration. It will not normally arise simply because a particular category of evidence is or may be unreliable. Her Honour’s remarks are not intended to convey the impression that, for example, the credibility of evidence is to be ignored in the first part of the test and then given full and free rein in the second. Of course, in an exceptional case absolute unreliability or a total lack of credibility may lead to exclusion. But this would be a rare situation (see for example, R v Blick). Normally, the task of evaluation of the weight of the evidence is left to the jury.

81 How then are these principles to be applied to the present situation involving Mr Sharrouf? The medical evidence which I have set out earlier does not, on its face, suggest that any particular statement by Mr Sharrouf was infected, at the time, by incompetence. Rather, it suggests, at best, that there may be a question mark as to the reliability of anything said or done by him, in a general sense, during the period of the conspiracy. The medical evidence is, I must say, very general and very non-specific. On the other hand, he has been suffering from schizophrenia, it would seem, for a number of years. If he were a witness at trial, and those matters were before the jury, it might well call for the need to give a warning about unreliability based on his mental condition. Mr Scragg will recall in the case of R v Taylor, I gave the jury such a direction at counsel's insistence in the case of a witness Rebecca Mills. In a recent case in the ACT, Connolly J gave a similar direction where an alleged victim of crime was suffering from Alzheimer's disease which may have affected the reliability of his identification of the accused (R v Ivan Djerke (2006) ACTSC 104 (10 October $2,006)). I am sure that this situation arises not infrequently. And it is often necessary that such a direction should be given. This is a very different question than the one posed by s 61 of the Evidence Act. It is also a very different situation from the issue posed by ss 135 and 137 of the Act where exclusion is sought. In this case the issue is simply one of potential unreliability. That is a matter that ordinarily will be addressed by appropriate directions and warnings, not by exclusion under s 137. Again, it is for the tribunal of fact to assess the reliability of the evidence.

82 Mr Dalton identified several areas of asserted unfair prejudice in his written submissions. I would not consider that the mere fact that the jury may not have the advantage of seeing Mr Sharrouf either in court or in the witness box would necessarily be a determinative matter. Nor do I consider that the fact that his statements would not be tested in cross-examination would necessarily involve unfair prejudice (R v Suteski (2002) 56 NSWLR 182 at 201 (26) per Wood CJ at CL). They are obviously relevant matters, but not necessarily decisive. Indeed, directions could be given about each of those matters.

83 What does concern me, however, is the very matter I raised with counsel during oral submissions in the course of discussion. If there is, at the very least, some issue as to the reliability of any statements made by Mr Sharrouf during the period of the conspiracy, how could a reliability warning be given to the jury unless there were evidence about his medical condition before them? I appreciate that the Crown takes a prima facie position that none of the statements by Mr Sharrouf, given both their inconsequential nature and the medical evidence, warrant a reliability warning. My initial reaction is that that may be too inflexible a position for the Crown to take.

84 On the other hand, the prospect of psychiatric evidence being introduced during the trial (assuming it could be, notwithstanding the credibility rule and other problems going to the issue of relevance) would be likely to create a side issue that could be extremely diverting, and quite unnecessary in such a long trial. For these reasons, I consider that the Crown should give serious consideration as to whether some type of agreed statement can be worked out so that, if reliability remains an issue, material can be placed before the jury by agreement. This is not to be taken as an invitation to the defence to try and “stymy” the Crown case by insisting on agreed facts that could not reasonably emerge from the type of evidence that has been placed before me. This is an area where some sensible and genuine compromise is necessary. I appreciate the fact that a final decision about these matters might have to await the determination as to whether Mr Sharrouf is to have a separate trial or not. That is to occur on or about 15 September 2008. I see no reason why the parties cannot have sensible discussions, between now and that time, to address this issue.

85 I am not satisfied that, at the present time, the exercise required under either ss 135 or 137 of the Evidence Act requires exclusion of the evidence. I will revisit the issue, however, after 15 September, and after the parties have had an opportunity to confer on the issues I have raised.

86 In those circumstances I shall defer a decision on the s 137 argument until after 15 September 2008.

87 The final matter relates to s 90 of the Evidence Act. I am not satisfied that that section has any application to the present matter. This is because the Crown does not propose to tender Mr Sharrouf's statements as admissions and is prepared to accept, as I understand it, a limitation on the use of the evidence to make it clear to the jury that such statements are not admissions. Secondly, I doubt that they are admissions in any event. I have touched upon this here and in earlier decisions, and there is no need for me to repeat those earlier observations. Finally, s 90 of the Evidence Act is a residual discretion and the occasion for its utilisation in the present matter, even assuming that there were admissions involved, has not been established. The section has been described as a “safety net” that has operation only after applying the more specific provisions of the Act (EM v R [2007] 239 ALR 204; [2007] HCS 46 at [109] per Gummow and Hayne JJ) provided the concerns I have raised in connection with ss 135 and 137 are addressed – if they can be – I see no scope whatsoever for s 90 to be called in aid. The circumstances of Mr Sharrouf’s mental condition may, at best, raise an issue about the reliability of his utterances, but that is well removed from a valid suggestion that either he, or the accused, will not receive a fair trial. Nor can it be said the use of the evidence at trial would be unfair. In my opinion, for these reasons also, the circumstances do not trigger s 90 of the Evidence Act.

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