Regina (C'Wealth) v Baladjam [No 46]

[2008] NSWSC 1465

CITATION:	Regina (C'Wealth) v Baladjam & Ors [No 46] [2008] NSWSC 1465
HEARING DATE(S):	07/08/08; 18/08/08; 02/09/08
JUDGMENT DATE :	30 September 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
DECISION:	1. I declione to exclude the evidence identified in the Notice of Motion, 2. Notice of Motion dismissed.
CATCHWORDS:	CRIMINAL LAW - Detention of accused for the purposes of a terrorism offence - Procedures involved in making application for an extension of time of detention period - Whether false information had been provided to a Magistrate in support of an application for an extension of the investigation period - Whether the police failed to inform.the accused of his right to speak with a Magistrate in connection with the extension application - Whether police failed to comply with the provisions of s 23E(4) and (5) of the Crimes Act 1914 (Cth) - Applications for extension of time under s 23D or 23DA by telephone - Whether a person under arrest must be informed of his or her right to make representations to the judicial officer prior to the making of the application or prior to its being heard - Proper construction of s 23E(2) of Crimes Act 1914 (Cth) - Further requirement that the judicial officer who extends the investigation period must notify the investigating official of the day and time when the extension is granted - Whether s 23E(4) requires the investigating official to complete and return to the judicial officer a document that accords with the order made by the judicial officer - Consequences of non-compliance with legislation. - CRIMINAL LAW - S 138 of Evidence Act 1995 - Principles applicable to exercise of discretion to exclude evidence obtained in circumstances where there has been a breach of the requirements of the Commonwealth Crimes Act 1914.
LEGISLATION CITED:	Crimes Act 1914 (Cth) Evidence Act 1995 (NSW)
CASES CITED:	DPP v Coe [2003] NSWSC 1 May 2003 per Adams J DPP v Leonard [2001] 53 NSWLR 227 at 248 per James J Robinett v Police [2000] 78 SASR 85; 116 A Crim R 492 R v Camilleri [2007] 68 NSWLR 720 R v Cornwell NSWSC (unreported 20 February 2003) per Howie J R v Petroulias [No 8] [2007] NSWSC 82 R v Petroulias [No 9] 2007 NSWSC 84 Rodney Joel Dalley 132 A Crim R 169 at 171 per Spigelman CJ
PARTIES:	Regina (C'Wealth) v Omar BALADJAM [No 46] 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
FILE NUMBER(S):	SC 2007/2397001;; 2007/2395001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001;
COUNSEL:	R Maidment SC; 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 T. Hale SC; G Scragg; D Carroll - Accused Jamal G Turnbull SC; A Djemal - Accused Mulahalilovic
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 Lawyers Corporation Ltd - Accused Mulahalilovic

- 1 -

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

WHEALY J

PARRAMATTA: TUESDAY 30 September 2008

2007/2397001 - Regina v Omar BALADJAM [No 46]
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
2007/2455001 - Regina v Mazen TOUMA

JUDGMENT - Application on behalf of Omar Jamal to exclude certain evidence - Alleged breach of ss 23E(2), (4) and (5) of the Crimes Act 1914 (Cth) – Procedures involved in application by investigating officials for extension of time in a terrorism investigation – s 138 Evidence Act 1995 (NSW) - Discretion exercised to allow evidence – Relevant considerations

1 HIS HONOUR: Mohammed Omar Jamal is one of nine men charged with an offence of conspiring to do acts in preparation for a terrorist act or acts. In this decision I shall refer to him as "the accused". He was arrested by police on 8 November at about 2.39am. At the time of his arrest the police were in possession of a search warrant for his family home at 15 Punchbowl Road, Belfield. From 2.39am the accused was detained for the purposes of the investigation. Subject to any extension, the maximum time for which he could be held was four hours (s 23CA Crimes Act 1914 (Cth)). The legislation allows for an extension of time. The application may be made personally, or it may be made by telephone, telex, fax or other electronic means. (Sections 23DA and 23E Crimes Act 1914 (Cth)). As might be expected, the legislation makes specific provision for periods of time which operate as "discounts" where it is necessary to calculate whether the four hour period has expired. To give but one example, the legislation permits a "discount" for any time during which the questioning of a person is suspended or delayed to allow the person to communicate with a legal practitioner or other specified person (s 23CA(8)(b)). There are thirteen specified categories of "discount".

2 Mr Scragg, counsel for the accused, here seeks to exclude, pursuant to s 138 of the Evidence Act 1995 (NSW), the evidence of answers given by the accused in an ERISP, along with DNA analysis arising from samples obtained from a motor vehicle located at his premises during the search.

3 The exclusion of the evidence is sought on three separate bases. These are:

(a) that false information was provided to a magistrate in support of an application for extension of the investigation period;

(b) that the police failed to inform the accused of his right to speak with a magistrate in connection with the extension application; and

(c) that police failed to comply with the provisions of s 23E(4) and (5) of the Crimes Act .

4 In relation to the first basis of exclusion, the accused submits that the information in the application was false in that the investigation had not, in fact, been suspended because of three circumstances. These were, firstly, that the police continued to bag and label exhibits after the "suspension" at 6.03am; secondly, that police officers continued to walk through the various rooms of the house and inspect them after the moment of "suspension", and thirdly, that a police officer, Senior Constable Hackett, spoke to the accused during the "suspension period" in such a way as to give rise to a suggestion that the investigation was continuing.

The first issue

5 The relevant application to extend time (it was one of a number made at that time) was made by Ian Knight at 6.30am on 8 November 2005. The “written” form of the application to extend time is part of Exhibit 1. The applicants for extension were Ian Knight of the Australian Federal Police and Detective Senior Sergeant Steven Day of the New South Wales Counter-Terrorist Coordination Command. It is common ground that the four hour period, without an exclusion having been granted, would have run out at 6.39am. It is also common ground that the investigation and search of the premises had been "suspended" at 6.03am. Notionally, time ceased to run from that point.

6 It is clear, as I have said, that the application for extension of time was one of a number made in the early morning of 8 November 2005. In general terms, all of the accused were arrested on that morning, or during that day. There were applications relating to five of the accused, including Jamal, on that day.

7 At 7.18am Ian Knight faxed through documentation relating to the extension of the investigation period. This documentation followed on the telephone application that had been made at 6.30am. It was apparently received by Ms Albu, the Duty Registrar at about 7.50am. The document recorded in written form the information that had been conveyed to Registrar Albu during the 6.30am phone call. The purpose of the extension sought by Ian Knight was, the document recorded, to enable the police to complete the search in the presence of Mr Jamal, and subsequently to allow police to interview Mr Jamal at the Sydney Police Centre.

8 On the “application” document itself, Ms Albu has written that "suspect did not wish to make any representations". This form contains other information, but it is not necessary to set it out in detail. The authorised justice records in her own handwriting:

“Police have been conducting a search of the premises at 2.39am, the suspect is with police at the premises while the search is being carried out. Police still need to search bedroom, under the house, back veranda, kitchen...police estimate they will need two to two and a half hours to complete the search. Police will then need time to interview the suspect about the offence and/or items seized. Numerous police are involved in conducting the search as quickly and thoroughly as possible having regard to the items being sought.”

9 The document records in two places that the "suspect or his legal representative" had been given the opportunity to make representations about the application - "however, suspect did not wish to make any representations".

10 There is also, on the document, a section where the authorised justice recorded her findings. Ms Albu stated that she was satisfied that the investigation period should be extended for a period of four hours. This authorisation was made at 10.20am on 8 November. According to the form signed by Mariaelena Albu, “an authority pursuant to s 23(4) was completed and signed at 10.20am on 8 November 2005”.

11 The document apparently sent by the AFP at 7.18am is headed "Authority by Telephone to Extend Investigation Period in Relation to a Terrorism Offence". This document has noted on, it in the writing of Ms Albu, "extension granted for four hours from 10.20am on 8 November 05." The form has a line for signature by the investigating official. The copy in evidence, however, does not contain a signature.

12 Ms Albu has provided a statement. It is part of Exhibit “A”. In this statement, Ms Albu indicates that she was the on-call authorised justice between 5am and 8am on 8 November 2005. She confirmed that she was spoken to by Ian Knight from the AFP at 6.30am on that day. He told her that he intended to fax written authorities to her for consideration under s 23DA of the Commonwealth Crimes Act. These were received by her at 7.50am. Ms Albu then spoke to a number of police officers regarding four men who were then under arrest. One of these was Omar Jamal, the present accused. The statement continues:

“11. Before I considered any of the applications I advised each police officer that the suspect must be informed that an application was being made to extend the investigation period and also that the suspect must be informed of their right to make representations to me on their own behalf, or through their legal representative.

12. I recall that I spoke with three of the suspects to explain the nature of the application that was being made by police to extend the investigation period.”

13 Ms Albu provided, as an annexure, to her statement the handwritten notes she had made on a pro forma document that complied, apparently with departmental procedures in relation to applications for Commonwealth detention after arrest warrants. There are in fact two applications. The first document is headed "Application for Extension of Investigation Period". It describes the applicant as Steven Day" and the suspect as "Omar Jamal". The date of the application is 8 November and the time of the application is shown as 6.30am. The handwritten note at the top of the document indicates that Ms Albu spoke "at 10am on 8 November" but indicates in the body of the document that:

“No reps made (suspect did not indicate a desire to make reps).”

14 The document indicates Ms Albu's satisfaction that the investigation period should be extended for a period of four hours. It stipulates that the commencing time is 10.20am on 8 November 2005. Once again, this document refers to an authority under s 23E(4) that was completed and signed at 10.20am on 8 November 2005.

15 The form is signed by Ms Albu.

16 The second document is in similar form, but has a different layout. It has annexed to it a document containing 13 typed questions relating to an extension of the investigation period. Ms Albu has completed answers to each of these questions which generally conform to the material I have already identified.

17 Ms Albu explained in her statement that the forms she had at the time were old and almost illegible. Consequently she prepared a document that was easier to read. This explains why there were two “application” forms relating to Omar Jamal. There was an old form and a new form. Both forms, however, were prepared on 8 November 2005, by Ms Albu. They contain, as I have said, essentially the same information.

18 There are also some separate handwritten notes Ms Albu annexed to her statement. These presumably relate to the occasion when she "spoke at 10am". The notes indicate that she was speaking to the police. It confirms:

“Applicant officer has advised the suspect the application was being made - he did not indicate that he wished to make reps.”

19 On 19 June 2008, Ms Albu had located a further document that she thought might be relevant to the present matter. This was the facsimile cover sheet that she has received from Ian Knight of the AFP on 8 November 2005. She made various handwritten notes on the fax cover sheet and on the reverse of that cover sheet. This shows the time at which she called each particular police officer in relation to each of the suspects the subjects of the extension applications. The entry in relation to Mr Jamal indicates a contact telephone number and the name of an officer, in this case "Peter Austin". It also indicates that she called at 10.18am to notify there would be an extension of four hours from 10.20am. A handwritten history of the various telephone calls is located on the back of this document. These were the numbers that she had dialled from her departmental mobile phone on 8 November 2005. Although Ms Albu does not remember who it was she spoke to in connection with the Jamal application, she believes it was “Peter Austin”, and that that call was made at 10.18am on 8 November 2005.

The bagging and labelling of exhibits

20 The accused accepts that the police did not continue to physically seize items and log them as exhibits after the suspension of the investigation time at 6.03am. However, the accused argued that the process continued, in the sense that the police then set about "catching up" with exhibits. The police had earlier seized 31 CD and 18 audio tapes which required bagging, labelling and recording. This process meant that the investigation continued for a period of time after the suspension, according to the accused’s arguments.

21 Exhibit “B” is the transcript of the video taping of the search warrant. It shows at page 38 that Officer Day said:

“The time is three minutes past six. We're just going to suspend the search momentarily. The reason for that is just to catch up with exhibits and for police just to grab some air. It is now suspended.

(Search warrant suspended).”

22 The next entry is at 12 minutes past eight when there was a brief reference to the second warrant for the search, namely, a warrant relating to a motor vehicle.

23 There is no doubt that the search was suspended at 6.03am. I do not consider that the bagging and labelling of a number of items which had previously been seized under the warrant, prior to the time of the suspension, represented a continuation of the investigative process. As the Crown submitted, those tasks were simply administrative in nature, and did not involve any further investigation at all.

24 Officer Liddiard provided a statement to the Court (part of Exhibit “A”) which said:

“During the search warrant there was a number of police who were responsible for the identifying of the premises. On seizing any items, the searching officers would give custody of the item to the exhibit officer. In relation to this warrant there was only one exhibit officer and another officer who was allocated to assist him. It was primarily the responsibility of the exhibit officer and his assistant to bag and label the items which had been seized, before writing them up in the property seizure record. Because of a backlog of this work, the searching of the premises was suspended at 6.03am.”

25 This statement explains the reason why the bagging and labelling took place after 6.03am. The evidence satisfies me that these tasks were not part of the investigative process, and did not bring about a situation where the suspension of the search and investigation could be classified as illusory.

Investigating officers walking though the house

26 Once again, this matter is described by Detective Sergeant Liddiard in his statement:

“Between the time that the investigation was suspended and the time of the granting of the extension, police continued to move around the house, but they did not search the premises during that period. Nor was any item inside the premises seized or removed in that period. The only exception to this was when the warrant was resumed to seize the accused's vehicle which was parked in the street opposite his residence.”

27 In addition to the evidence from Detective Liddiard there is also relevant material in the transcript (part of Exhibit 1). There, Officer Day informed the accused that the police had been granted an extra four hours in investigation time by a local magistrate (transcript page 38-39). This statement was made shortly before 10.20 and the officer indicated that once 10.20 arrived the search would resume. The following conversation is recorded:

“ SD: So you agree that whilst we suspended our search at three minutes after six, police haven't conducted any search in any way on these premises.

...

SD: Do you agree with that, Omer?

OJ: I believe that these officers walked around my house (ind) so I don't know what they're up to.

M: But no physical search has been done?

OJ: I don't know what they were up to, they were walking around my house (ind).

M: We might start the search now.”

28 Both Detective Liddiard and Senior Constable Hackett (who gave evidence on the voir dire) were cross-examined in an endeavour to ascertain whether investigative steps had been taken by police who were moving around the house during the suspension period. Cross-examination did not raise any doubts that the position was as it appears to be from the evidence above. It seems clear to me that there was no investigation during the period. It could hardly be expected that the police would behave as if they were statues, or remain in some type of state of administrative petrification during the suspension period. There is not the slightest evidence, however, to suggest that any investigation continued during this period of time.

Conversations between the accused and Officer Hackett

29 Senior Constable Hackett provided a statement. He confirmed that the search warrant process had been suspended in the early hours of the morning on 8 November 2005. He was given the task of "looking after" Omar Jamal during the suspension period. He said that during this time he and the accused had been sitting in a bedroom at the front of the house. His statement continues:

“During this time myself and Omer Jamal engaged in general conversation to pass the time. We spoke about such topics as the conflict in the Middle East, the cyclone that had recently devastated New Orleans and religion. Omer Jamal even attempted to convert me to Islam...At no time did I formally question Omer Jamal to elicit information to assist our investigation and thus he was not cautioned. I estimate that we spoke for about one hour, maybe more. After this time the extension of the search warrant was granted and its execution was resumed.”

30 Senior Constable Hackett was cross-examined extensively about these conversations. He impressed me as a very honest and sincere young police officer. He was somewhat out of the mould, in that he seemed to be quite genuinely interested in religious and spiritual matters. I have no doubt that he was, as he said, simply chatting with the accused about matters that were of general interest to both of them. The conversation was clearly civilised, friendly and informative. He said it was not his intention, during any part of the conversation, to make use of the opportunity as any part of the investigation process. Detective Hackett said the conversation was “just for his own personal interest”. There was nothing in it to be gained that he would have used in the investigation and, in fact, he didn't use any of the discussion for the purposes of investigation.

31 Having listened to the evidence of Senior Constable Hackett, and having observed his demeanour, I accept without hesitation that his conversations with the accused on 8 November were of a purely personal nature and did not form part of the police investigation.

Second major issue: Was the accused given the opportunity to speak with a magistrate?

32 There are two aspects to this argument. The first is the position argued by Mr Scragg on behalf of the accused to suggest that the police have simply failed to demonstrate that there was compliance with s 23E(2). The second relates to the timing of the applications. Sections 23DA and 23E are in the following form:

“ SECTION 23DA

Extension of investigation period if arrested for terrorism offence

(1) If a person is under arrest for a terrorism offence an investigating official may, at or before the end of the investigation period, apply for an extension of the investigation period.

(2) The application must be made to:

(a) a magistrate; or

(b) if it cannot be made at a time when a magistrate is available--a justice of the peace employed in a court of a State or Territory or a bail justice; or

(c) if it cannot be made when any of the foregoing is available--any justice of the peace.


The magistrate, justice of the peace or bail justice to whom the application is made is the judicial officer for the purposes of this section and section 23E.

(3) The application may be made before the judicial officer, or in writing, or as prescribed by section 23E, and the person or his or her legal representative may make representations to the judicial officer about the application.

(4) Subject to subsection (7), the judicial officer may extend the investigation period, by signed written authority, if satisfied that:

(a) the offence is a terrorism offence; and

(b) further detention of the person is necessary to preserve or obtain evidence or to complete the investigation into the offence or into another terrorism offence; and

(c) the investigation into the offence is being conducted properly and without delay; and

(d) the person, or his or her legal representative, has been given the opportunity to make representations about the application.

(5) The authority must set out:

(a) the day and time when the extension was granted; and

(b) the reasons for granting the extension; and

(c) the terms of the extension.

(6) The judicial officer must give the investigating official a copy of the authority as soon as practicable after signing the authority.

(7) The investigation period may be extended any number of times, but the total of the periods of extension cannot be more than 20 hours.

SECTION 23E

Applications by telephone etc.

(1) An application under section 23D or 23DA for extension of the investigation period may be made by telephone, telex, fax or other electronic means in accordance with this section.

(2) Before making the application, the i nvestigating official must inform the person under arrest that he or she, or his or her legal representative, may make representations to the judicial officer about the application .

(3) If the judicial officer extends the investigation period, he or she must inform the investigation official of the matters set out in the authority under subsection 23D(4A) or 23DA(5) (as the case requires).

(4) As soon as practicable after being informed of those matters, the investigating official must:

(a) complete a form of authority and write on it the name of the judicial officer and the particulars given by the judicial officer; and

(b) forward it to the judicial officer.

(5) If the form of authority completed by the investigating official does not, in all material respects, accord with the terms of the authority signed by the judicial officer, the authority granted by the judicial officer is taken to have had no effect.

(6) In any proceedings, if the authority signed by the judicial officer is not produced in evidence, the burden lies on the prosecution to prove that the authority was granted.

Note: These obligations apply in relation to protected suspects as well as to people under arrest.”

33 It can be seen that s 23E(2) places an obligation on the investigating official, before making the application, to inform the person under arrest that he or she, or his or her legal representative, may make representations to the judicial officer about the application.

34 Mr Scragg's arguments were, firstly, as I have said, that the investigating official had failed to inform the accused of the entitlement under s 23E(2). Secondly, that if the accused had been informed of his right to make representations about the application, it was not done before the making of the application, but after it had been made and prior to determination. This second argument assumes that the application was made at 6.30am.

35 There was an earlier voir dire in held June 2008. It related to an application then advanced on behalf of Omar Jamal. It dealt with a different issue, but focused on the same circumstances and events as does the present application. In the event, the voir dire application made in June 2008 was subsequently withdrawn by the accused. It was not pursued. By agreement, however, the parties sensibly placed before the Court, in relation to the present application, the transcript of the evidence taken in the voir dire to supplement the documentary material on this application. The Crown has relied on what it described as the “unequivocal” evidence of the accused when he had been cross-examined by Ms Abraham QC in June 2008.

MR CARROLL

Q. Your name is Mohammed Omar Jamal?

A. Yes.

Q. On 8 November 2005 were you ever told of your right to make representations to an on-call Magistrate to extend your detention?

A. No, I wasn't.

CARROLL: That's the evidence-in-chief.

Then CARROLL

Q. The one question which I asked earlier this week was whether or not you were ever asked to make representations about your detention. Do you recall that?

A. Yes.

Q. And you answered--

A. No.

Q. Was a mobile phone ever handed to you on the pretext that you could speak to a magistrate or justice?

A. No.

Q. If you were told between 6.03 and 10.20 if you would like to speak to a justice about what was occurring at Punchbowl Road, would you have taken that opportunity up?

A. Yes, I would have.

Q. If you were asked this question, Is the investigation being conducted properly and without delay, what would you have told the justice?

A. Repeat the question.

Q. If you were asked a question between 6.03 and 10.20 by the justice, Is the investigation being conducted properly and without delay, what would you have told her?

A. I would have told her, no, it is not being conducted properly.

Q. In what way?

A. Well, there are people - like there was police walking around my house without being photographed or camera-ed or anything like that.

Q. Anything else?

A. That's what I can recall at the moment.

Q. If you were asked the question as to whether or not the police have continued to investigate matters in your house after 6.03, what would you have told them?

A. I can't really say that. I can't recall, sorry.

Q. If you were asked the question at 10.18, Mr Jamal, Have you or your legal representatives been given the opportunity to make representations about this application, what would your answer have been?

A. Yes, I would have taken up the representation if I was given it.

Q. If you were asked the question of the magistrate, Has anyone told you that you can speak to me about your detention, what would your answer have been?

A. Repeat, I didn't understand it.

Q. If the justice asked you, Have you been told by the police that you can speak to me about what is going on at the house, what would you have told the justice?

A. Well, like I said before, it is not being conducted properly, the search, and there's people around my house without the camera being there.

Then

Q. The police at various stages were explaining a number of things to you; for example, what they were searching for?

A. Yes.

Q. And they asked you whether you understood what they were saying?

A. I can't recall that.

Q. They asked you more than once whether you understood what they were saying, didn't they?

A. I don't recall.

Q. You didn't respond. You basically said: Do your job?

A. Like I said, I wasn't in the mood at that moment because my mind was somewhere else. It's not that I didn't want to know; it's just because my mind was somewhere else at that moment.

Q. What the police were offering at any stage you were basically knocking back?

A. I wasn't really knocking it back; I was just in a different state of mind at that moment.

Q. For whatever reason, you knocked it back, basically. That's correct?

A. I knocked it back in your terms but in my terms I didn't really knock it back because my mind was somewhere else and I wasn't really thinking about it at that moment.

CROWN PROSECUTOR

Q. You were told you could speak to a magistrate?

A. Yes, I was told.

Q. And you didn't want to?

A. Sorry? I didn't want to?

Q. Yes. You said "No"?

A. I told you "Yes". Can you tell me what time frame this was?

Q. Sorry. Let's go back a step. You agree that you were told you could speak to a magistrate. You have agreed with that. That's correct?

A. Can you tell me what time frame this was?

Q. I will get to the time in a moment. You agreed a moment ago you were told you could speak to a magistrate. That's correct?

OBJECTION

CARROLL: The question is unclear.

QUESTION ALLOWED

CROWN PROSECUTOR

Q. You told us a moment ago you were asked or you were told you could speak to a magistrate. You said you were told that. That's correct.

A. Yeah. According to when I watched the video, yes. I heard that on the video when I watched the video. I said that. I was entitled to speak to a magistrate.

Q. You declined?

A. I did not decline.

Q. You said you wanted to, did you?

A. Sorry?

Q. You said you wanted to, did you?

A. No. No. I'm saying in the video my state of mind, or when they were doing the search, my state of mind was somewhere else. If I had known to speak to a magistrate, I would have spoke to them.

Q. Go back a step. You have agreed that you were told you could speak to a magistrate. That's correct?

A. Yes.

Q. You did not take the police up on that offer. That is correct?

A. Yes, I didn't take them up on the offer.

Q. There was down time whilst the police were trying to get an extension?

A. I just want to go back on the last question.

Q. There was down time while the police were trying to get the extension. By "down time", the video--

A. Yes, there was a wait.

Q. That was for some considerable period, I think. That's correct?

A. Two hours.

Q. And you were told that's what they were trying to do; get on to the Magistrate. In effect, they were in a queue?

A. Yes.

Q. That's correct. It was during that time that you were asked or told you could speak to the magistrate. That's correct?

A. Can you repeat that?

Q. It was during that time that you were told you could speak to a magistrate?

A. Well, I can't really recall - what I can recall in the video is he was saying there's going to be a lengthy delay because he wants to get in touch with the Magistrate and I didn't reply anything then to him. That's basically what happened. That's what I remember.

Q. You have told us you recall being asked whether you wanted to speak to a magistrate. That's correct?

A. From the video, that's right, because I watched the video again, but my state of mind when I was in the search was different. My mind wasn't there.

Q. Ignore the video. You have told us that you were asked that question; "Do you want to speak to a magistrate"?

A. Yes, because that was my recollection from the video; not from my state of mind from the house.

Q. You didn't hear it at the house. You didn't hear that at the house?

A. No.

Q. Only on the video?

A. Yes, only on the video.

Q. At what stage of the video was that?

A. It is about halfway through, when they had a break. When they had a break for that two hours, for the two hour break.”

36 The accused had previously said in his evidence-in-chief on the voir dire that he had not been told of his right to make representations to an on-call magistrate to extend the investigation period. However, it seems quite clear that he resiled from this during his cross-examination. The Crown says that this was "unequivocal" - e.g.

“Q. You were told you could speak to a magistrate?

A. Yes, I was told.”

37 As appears from the transcript above, the accused confirmed this on two occasions. However, he then sought to suggest that it was from the video shown in Court that he concluded he had been told that he could speak to a magistrate, rather than from his own recollection. To confuse the issue further, he said, during his evidence, that his state of mind was not “engaged” (for various reasons) during the time the police were at his home.

38 A viewing of the video of the search does not, in terms, reveal that the accused is shown on film being told he could speak to a magistrate. That conversation does not occur during the filming process. This is understandable because the process was suspended at 6.03am, and not revived until a considerable time later. It is properly to be inferred that, if the accused were told of his rights to speak to the magistrate, this would have occurred during the time when the filming process, and the search itself, had been suspended.

39 On the other hand, the video does show that there was a gap between 6.03am and 8.12am. The camera was started again on that occasion so that the police could mention to the accused that there was a warrant in relation to the car. It was to be seized as an exhibit and the accused was shown a copy of the warrant. The transcript of the recording continues:

“ SD: The delay, the gap between 6.03am and 8.12am has been for the purposes of granting an extension warrant which is to extend our search warrant so we can leave the search here. Do you understand that we have been placed in a very long queue, apparently, and we are just waiting for the magistrate to give us a call and review that warrant and once that happens we will be able to continue the search and until that time we are in a holding pattern. Do you understand that?

OJ: How long will that be?

SD: I've asked, we've been, we're in the hands of the on-call magistrate. As you know the courts aren't open as the other morning whether (ind) services an on-call magistrate and he or she is reviewing our application, they'll let us know in due course. For the purposes, the time is now fifteen minutes past 8. The execution of this search warrant is now suspended.”

40 The search warrant remained suspended until approximately 19 minutes past ten, at which time the accused was told that the local magistrate had granted an extra four hours of investigation time, beginning at 20 past ten.

41 There was evidence from Detective Sergeant Liddiard on the voir dire which touched upon the present matter. He had said in his statement that he could recall an application being made for extension of the investigation period, but he was not involved in that application himself. He thought it was made by an officer or officers of the Australian Federal Police.

42 During his oral evidence, D S Liddiard said that he had been told of the application having been made by Detective Day. He thought he could recall a conversation between Detective Day and the accused in relation to the fact that an application was to be made for an extension of the detention period (transcript 2418). He was not completely sure when this conversation would have occurred, but thought it would not have been far into the suspension that the application itself was made, probably about 6.30am (transcript 2418).

43 Detective Sergeant Liddiard was asked point blank by Mr Scragg whether he had any recollection of Jamal ever being informed by any police officer of his right to make representations to the Registrar in relation to the application. D S Liddiard said that the accused was given the opportunity to speak to the Registrar and, in fact, he believed that he did do that. His recollection was that he heard the accused talking on the phone to a person, and he believed that was the Registrar. He thought this was shortly before the detention warrant was granted. As far as he could recall, the accused had been in the front bedroom by himself, although in full view of the police when he was speaking on the phone. He thought it was Detective Day's mobile phone. He conceded, however, he did not know who the accused was talking to, and he did not know what was said.

44 Finally, there is a need to mention a letter from the Crown Solicitor's Office to Mr Scragg's instructing solicitor dated 27 August 2008. This became part of Exhibit 1. It was an indication that Detective Day had been spoken to, that his telephone records had been examined, and that there was nothing to indicate that he had contacted the on-call magistrate or his/her phone in relation to the extension of the investigation period on 8 November 2005.

45 From all this evidence, I make the following findings of fact: First, although the accused asserted in his evidence-in-chief that he had not been given the opportunity to speak to the magistrate, I am perfectly satisfied that he unequivocally agreed during his cross-examination that he had been told he could speak to a magistrate. Secondly, I find that in fact he had been told of his rights in this regard but declined to take them up. Thirdly, I consider that one reason, but not the only reason, the accused made this very unequivocal concession was that he thought (erroneously) that he had been "caught" on the video being told of his rights. Fourthly, the accused then attempted to obfuscate the point by asserting that his mind was “elsewhere” during the search warrant process, and that by implication this extended to the information involved in the concession he had made. Fifthly, I do not accept that his "mind was elsewhere". An examination of the video throughout demonstrates that he was very focused, very deliberate and, despite the difficulty of his custodial situation, fairly much in control.

46 Mr Scragg argued that Mr Jamal did not acquiesce in or agree to the questions put to him as to whether he had been told he could speak to a magistrate. I reject this submission and find, as I have indicated above, that he unequivocally agreed to the proposition. It was only a little later that he attempted to prevaricate by making the reference to what he had seen on the video, and to his alleged state of mind at the time. Mr Scragg's central point however, is that there is no evidence before the Court from Detective Steven Day, and that a powerful inference should be drawn in the absence of evidence from that officer. However, in the light of the accused's unequivocal assent to the question put to him by the cross-examiner, I am not prepared to draw an inference adverse to the Crown. The matter has been satisfactorily proved out of the mouth of the accused. I infer from all of the circumstances, and the totality of the evidence I have described, including the documentary material, that the accused was told that he might make representations to the magistrate about the application. He declined to do so. In my view, subject to the next matter I will discuss, that was sufficient compliance with s 23E(2) of the Crimes Act 1914.

47 The final matter is whether I can be satisfied that the accused was informed of his entitlement before the application was made. The phrase in the section is "before making the application". This is perhaps a minor, but nevertheless, difficult point of construction. Given the nature of the application dealt with in s 23E, there is much support for the construction urged by Mr Scragg, namely that the entitlement must be conveyed to the person under arrest before the telephone, telex, fax or other electronic means is utilised to make the application. On the other hand, it makes little sense in a situation such as the present where the application was made at 6.30am, was supported by a later document not received by the magistrate until shortly before 8am, was not expected to be dealt with until some time later, and was in fact, not dealt with by the magistrate until after 10am. Those circumstances might be thought to support a more flexible construction that would lead to satisfaction of the statutory duty so long as the person under arrest were told of his rights before the magistrate came to deal with the application. I am perfectly satisfied that the accused was told of his rights before Ms Albu came to finally deal with the extension application. I could not be satisfied, however, that he was told of those rights before the telephone application was lodged. I could not be satisfied that he was told of those rights before the faxed material came into the possession of Ms Albu at about 7.50am. He may have been told prior to that time, but I am simply unable to say one way or the other.

48 In my view, the better view of the section is that the person under arrest should be told of his entitlement before the "lodgement" of the application, whether by way of telephone, telex, fax or other electronic means. In that sense, it seems to me, there was a technical breach of s 23E, although I am perfectly satisfied that the “entitlement” was conveyed to the accused at some stage prior to Ms Albu dealing with the application. Just how close this was to the determination period, I am unable to say.

49 This finding will make it necessary for me to consider s 138 of the Evidence Act 1995. I will turn to that when I have dealt with the final matter relied on by Mr Scragg.

Alleged breach of s 23E of the Crimes Act 1914 (Cth)

50 The statute requires that the judicial officer who extends the investigation period inform the investigating official of the matters set out in the authority under 23D (4A) or 23DA(5), as the case may require. This means, firstly, that the judicial officer must notify the investigating official of the day and time when the extension is granted, the reasons for granting the extension and the terms of the extension. This plainly happened.

51 Section 23E(4) then requires, as soon as practicable after being informed of those matters, the investigating official must complete a form of authority and write on it the name of the judicial officer and the particulars given by the judicial officer; and (b) forward it to the judicial officer. The issue here is whether that was done, and, if it were not, what consequences may follow.

52 Sub-section (5) of 23E does not impose a direct sanction if its terms are not complied with, but does provide that, if the form of authority that is completed does not, in all material respects, accord with the authority signed by the judicial officer, the authority granted by the judicial officer is taken to have had no effect.

53 In the present matter, the paperwork is somewhat incomplete and is certainly rather untidy. This is hardly surprising, given the period of time that has elapsed since the process was undertaken, and the additional fact that at the time there was a considerable amount of work for both the judicial officer and the police to undertake in that regard, not only in relation to the present accused, but to the other persons as well whose names appear on the documentation. Indeed, given the scope of the police operation on that morning in the western suburbs of Sydney, it is remarkable that the paperwork is as fulsome as it appears to be.

54 The Crown have submitted that the document headed "Australian Federal Police - Authority by Telephone to Extend Investigation Period" et cetera, answers the description of the document mentioned in 23E(4). In my view, notwithstanding its imperfections, it does generally answer that description. Ms Albu states on the form she has signed that “authority” pursuant to s 23E(4). It was completed and signed at 10.20am on 8 November 2005. The “authority” document purports to record, inter alia, the name of the judicial officer who had granted the authority to extend the investigation period. It provides the particulars of the extension itself. It is cast in the past tense. The fact that it lacks the signature of the investigating official does not of itself deprive it of validity as being a document forwarded to the judicial officer in purported compliance with sub-s (4). However, the chronology does not make it clear when the document was sent. It may have been sent in draft form, before the extension was made, and, in that case, it may have been necessary for Ms Albu to complete it by writing in the time and terms of the extension. Importantly, as might be expected, it does accord, in all material respects, with the authority signed by the judicial officer. That, to my mind, is the critical point. The section creates a type of audit procedure so as to ensure that there is a close correlation between the particulars of the extension given by the judicial officer as understood by the investigating official. In this case, although the final details of the authority were completed by Ms Albu rather than by the police, the records enable an independent observer to conclude that the order granted by the Registrar accords precisely with the terms of the order, as understood by the police. There is no disparity or lack of concordance between the two documents. It also appears the completed authority document may have been faxed, or sent, back to the police. Assuming that to be the case, the procedure contemplated by the statute has been, in part, reversed.

55 For those reasons, there appears to me to be an obvious irregularity. This is because the draft document appears to have been sent before the order was made, and it required completion in part by the Registrar, rather than being completed by the investigating official as s 23E(4) contemplates.

56 What follows from this irregularity? In my view, it does not mean that the extension granted by the judicial officer had no effect. That would have been the position had the form of authority not been in accord with the terms of the authority signed by the judicial officer. But that was not the situation. The procedures followed by the applicant for extension and the Registrar, were clearly unorthodox but they did not, in my opinion, bring about a situation where the extension of time was rendered invalid. Nevertheless, there was an irregularity. This finding will make it necessary for me to consider, once again, the provisions of s 138 of the Evidence Act 1995. I will now turn to consider those provisions in the light of the two irregularities I have found to exist.

Section 138 of the Evidence Act 1995

57 This section, relevantly, is in the following terms:

“ SECTION 138

Discretion to exclude improperly or illegally obtained evidence

(1) Evidence that was obtained:

(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;


is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a) the probative value of the evidence; and

(b) the importance of the evidence in the proceeding; and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and

(d) the gravity of the impropriety or contravention; and

(e) whether the impropriety or contravention was deliberate or reckless; and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.”

58 There are several first instance judgments in the Common Law Division of the Supreme Court that I regard as helpful. The first is that of Adams J in Director Public Prosecutions v Coe [2003] NSWSC 1 May 2003. In that decision, Adams J examined the common law principles, which had preceded the introduction of the section. He also examined the discussion by the Australian Law Reform Commission in its Interim Report on Evidence (No 26) of the issues sought to be addressed by s 138. Although his Honour was principally concerned with the meaning to be given to the word “obtained” in s 138(1), he also gave consideration to the general principles, which underpinned the public policy discretion, reflected both at common law and in the section of the Evidence Act. Adams J referred to a passage in Robinett v Police (2000) 78 SASR 85; 116 A Crim R 492 where Bleby J had cited Lobban (2000) 112 A Crim R 357 per Martin J (with whom Doyle CJ and he agreed). The passage is at 367 where Martin J said: -

“In my opinion however the history of the public policy discretion has been centred upon the discretion being enlivened only when the evidence is obtained by unlawful, improper or unfair conduct on the part of law enforcement authorities. In identifying the rationale for the existence of the discretion, the High Court and other authorities have emphasised the importance of preventing the courts from being ‘demeaned’ by the use of the ‘fruits of the illegality’ or being used ‘to effectuate the illegal stratagems of law enforcement agents or persons acting on their behalf’. The focus is thus upon bringing the administration of criminal justice into disrepute through the use of the courts in this manner. The courts have not undertaken the role of supervising the conduct of law enforcement authorities generally in circumstances divorced from any attempt by those authorities to use the courts to further the aims of their unlawful, improper or unfair conduct”.

59 Adams J thought this statement of the position was “plainly correct”. His Honour added however: -

“But I would not interpret this passage as doing anything more than restating the principle that the courts will not allow themselves to be manipulated into condoning crimes or serious improprieties by law enforcement officers or their agents, as is made clear by the concluding sentence.”

60 A second decision which I have found particularly helpful is that of Howie J in an interlocutory judgment Regina v Richard Bruce Cornwell Supreme Court, Common Law Division (unreported 20 February 2003). In that case, his Honour was considering an application by the accused asserting that evidence obtained as a result of the use of a listening device was inadmissible under s 138 of the Evidence Act. The basis of the ruling sought was that the evidence had been obtained in consequence of an impropriety by the investigating officers. The impropriety was said to have been a misstatement in the affidavit in support of the warrant.

61 Howie J held that the evidence had not been obtained as a result of an impropriety, and that the particular misstatement, seen in the context of the affidavit as a whole, led him to the view that all that was involved was an inadvertent mistake in an otherwise carefully drawn affidavit. His Honour held that such conduct could not alone be reasonably be regarded as improper, notwithstanding the significance of swearing an affidavit in support of a Listening Device Warrant. His Honour also found that there was no causal connection between the impropriety alleged and the obtaining of the impugned evidence. At para 20, his Honour said: -

”I am of the view that, otherwise than when sub-sections 138(2) or s 139 apply, the court should determine whether the section in engaged having regard to the particular facts and circumstances before it but with due regard to the seriousness of a finding that evidence was obtained improperly or as a consequence of an impropriety and the outcome of such a finding. Not every defect, inadequacy, or failing in an investigation should result in a finding that the section applies merely because it may be considered that, as a result of those defects inadequacies or failings, the investigation was not properly conducted or that the police did not act properly in a particular respect. On the other hand the terms of sub-section 138(3)(e), which sub-section requires the court to take into account whether the impropriety or contravention was deliberate or reckless make it clear that the conduct need not necessarily be wilful or committed in bad faith or as an abuse of power”.

62 To these two authorities I would also add a reference to the two decisions by Johnson J, R v Petroulias [No 8] 2007 NSWSC 82 and R v Petroulias [No 9] 2007 NSWSC 84. They are to like effect.

63 These authorities were, strictly speaking, dealing with an allegation of evidence that was obtained improperly. They have, in my opinion, a resonance however for the situation that has arisen here where I have found that there were breaches of an Australian law, namely a breach arising in the context of s 23E(2) of the Crimes Act 1914 (Cth) and a breach, or at the very least, an irregularity under s 23E(4).

64 The Court of Criminal Appeal has itself considered the operation of s 138 of the Evidence Act in recent times. In R v Camilleri [2007} 68 NSWLR 720 (McClellan CJ at CL, Bell and Howie JJ) reinforced the views expressed by Howie J in R v EM, to the effect that s 138 is concerned with balancing public interests. McClellan CJ at CL (with whom the other members of the Court agreed) said at 727 (31): -

“The fundamental concern of the section is to ensure that, if the law has been breached, or some other impropriety has been involved in obtaining evidence, this is balanced against the public interest in successfully prosecuting alleged offenders. The competing interests are obedience to the law in the gathering of evidence and enforcement of the law in respect of offenders. In R v EM (at 74), Howie J said:
‘The discretion under s 138 is similar to that which was described in R v Swaffield (1998) 192 CLR 159 as the public policy discretion at common law. Of course, there is a significant difference between the discretion under s 138 and that at common law: the section requires that the Crown persuade the Court to admit evidence that was improperly or unlawfully obtained. But just as at common law, the public policy discretion was distinct and separate from the unfairness discretion, so the discretion to admit evidence under s 138 is a distinct and separate discretion from that arising under s 90. The two discretions may overlap but they are not synonymous. Section 138 is not, in its terms at least, concerned with the Court ensuring a fair trial for the accused. Certainly that is not a paramount consideration when exercising the discretion. The discretion exercised under s 138(1) seeks to balance two competing public interests, neither of which directly involves securing a fair trial for the accused.”

65 Considering the matters stipulated in s 138(3), McClellan CJ at CL said at (35):

“This case is to be distinguished from a situation where evidence is obtained by police in knowing breach of the law or, where they may be reckless as to whether or not it has been lawfully obtained. Where the breach of the law is innocent, and the alleged offence serious there must be powerful countervailing considerations before the evidence should be rejected. The fact that the evidence is of high probative value will weigh in favour of its admission.”

66 I turn now to consider the application of the matters in sub-s (3) of s 138. I bear in mind that the terms of s 138(1) require me not to admit the material into evidence unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in a way in which the evidence was obtained. I will deal with each breach separately.

67 In my view, the breach of s 23E(2) in the present matter was of the utmost technicality. The accused was told of his entitlement before the judicial officer came to consider the application. I do not think that the failure to inform him of those rights before the telephone call was made at 6.30 impinged on those rights in any material way. I am satisfied that he had declined to make any representations to the magistrate, and the magistrate knew of this when the application was properly considered after 10am on 8 November 2005. It is against that background that I consider the matters in s 138(3). I make the following findings:

(a) It is difficult to assess the probative value of the evidence that is sought to be excluded. This is because it is not entirely clear what the defence case will be. The evidence about the accused’s facility with computers is clearly an important circumstantial fact in the overall Crown case. The “identification” evidence relates a serious issue in the trial. It is especially important in the case against Jamal. The DNA evidence goes to the nature of the association between the accused and other defendants. It is clearly an important issue in a conspiracy charge. My view, overall, is that the evidence is highly probative, but not critical to the Crown case.

(b) The same comments may be made in relation to the issue as to the importance of the evidence for the purposes of the Crown case. The case, however, is a circumstantial one and each circumstance plainly has a value for the Crown's ultimate case at the conclusion of the evidence. Many of the circumstantial facts are likely to be hard fought, as the vigour and length of the pre-trial procedures demonstrate. That is certainly so in the case against Jamal.

(c) The offence charged against the accused is, however, of the utmost seriousness and carries a significant penalty. Because of the seriousness of the offence, the more likely it is the public interest will require the admission of the evidence (see Rodney Joel Dalley 132 A Crim R 169 at 171 per Spigelman CJ)

(d) I do not consider that the breach here was, in any sense, deliberate or reckless. As I have explained the police operation on this morning was a massive one, and the logistics of making, for example, extensions of time were quite difficult. It was likely that the police would have realised that the application for extension of time could not be dealt with until later in the morning and the failure to tell the accused of his entitlements before the telephone application was made is quite understandable.

(e) I do not consider that it is necessary to make any specific finding about the matters in the other paragraphs of subsection (3). None of those considerations lead me to a different overall conclusion than the one I have stated.

68 I turn now to consider the breach under s 27E(4). Once again, I do not consider that the irregularity involved here was deliberate or reckless (DPP v Leonard [2001] 53 NSWLR 227 at 248 per James J). There can be no suggestion that the police were manipulating the system deliberately or wilfully condoning an impropriety. The mistake in procedure arose, I infer, from a simple lack of understanding of the strict requirements of the section, coupled with the need to make multiple applications for extension of time as a matter of urgency. The form of authority prepared and sent to the Magistrate in draft contained most of the information necessary to legitimately reflect the matters that would be expected to be included in the document, if it had been be sent after the order was made. It appears, moreover, that a copy of the completed authority was returned to the police. All that was incomplete in the draft, however, was the time of the making of the order and the corresponding statement of the period of the extension. The procedure involved clearly reflected some type of understanding, probably never articulated, between the AFP and the Registrar designed to ensure that there would be, at the end of the process, a complete accord between the police and the judicial officer as to the terms of the extension. I infer that one reason it was done this way was because of the urgency of the applications, and the fact that there were multiple investigations running concurrently. Of course, as I have said, there was also a lack of understanding of the strict requirements of the statute as well.

69 So far as other individual matters required to be considered under s 138(3) of the Evidence Act 1995, I make the same points in relation to this breach as I did in relation to the breach under s 23E(2).

70 In each instance, I am satisfied, for the reasons I have given, that the desirability of admitting the evidence out weighs the undesirability of admitting evidence obtained irregularly or in breach.

71 In these circumstances I do not propose to exclude the evidence identified at the commencement of this decision.

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