Regina (C'Wealth) v Baladjam [No 47]

[2008] NSWSC 1466

CITATION:	Regina (C'Wealth) v Baladjam & Ors [No 47] [2008] NSWSC 1466
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:	I decline to order the exclusion of the statement made by the accused
CATCHWORDS:	CRIMINAL LAW - Application to exclude statement made by accused at time arrest - Admissions influenced by oppressive conduct - Principles applicable to construction of s 84 Evidence Act 1995 (NSW) - Meaning of oppressive conduct.
LEGISLATION CITED:	Evidence Act 1995 Crimes Act 1914
CASES CITED:	Higgins v Regina [2007] NSWCCA 56 Hugh Wily v Peter Gerald Fitz-Gibbon 1998) FCA 121, 2 March 1998 R v Esposito (1998) 45 NSWLR 442; 105 A Crim R 27; R v Horton (1998) 45 NSWLR 426; 104 A Crim R 306 R v Ye Zang [2000] NSWSC 1099 Simpson J (at 44)
PARTIES:	Regina (C'Wealth) v Omar BALADJAM [No 47] 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:	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: September 2008

2007/2397001 - Regina v Omar BALADJAM [No 47]
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 by Jamal to exclude evidence at trial – s 84 of the Evidence Act 1995 (NSW) – Statement not influenced by oppressive conduct

1 HIS HONOUR: Mr Scragg, on behalf of the accused Jamal, has raised an issue about whether a statement made by his client in the early hours of the morning on 8 November 2005 should be admitted. The issue having been raised, it is necessary for the Court to determine whether the evidence is made inadmissible by virtue of s 84 of the Evidence Act 1995.

2 The statement is one that I considered at some length in an earlier decision, (R v Baladjam [No 32]). In that judgment the primary question related to the relevance of the statement to the issues at trial, and as to whether s 137 of the Evidence Act required its exclusion. For the reasons there given I concluded that the statement was relevant and that no basis had been demonstrated for it to be excluded. The present application does not require a revisiting of those issues, but is concerned with a different matter altogether, namely, whether the evidence should be found inadmissible under s 84 of the Evidence Act.

3 The statement occurred during the execution of a search warrant on 8 November 2005 at 15 Punchbowl Road, Belfield. The transcript recording the statement is part of Exhibit 1. The relevant portion of the transcript records Jamal as saying:

““For one thousand four hundred years the Koran has never ever been changed. 'Til this day it's proven by even Christian scholars that it has never been changed. All the other books have been changed except this book. If you do not believe you see where you're gonna end up. Allah is gonna put youse into a fire. Well Allah heats the most disgraceful fire that can ever be and youse, well Allah, youse are gonna regret every single thing that youse ever did from the day youse were born. Remember that. Fourteen hundred years, never been changed, and if you don't believe in it you'll see what's gonna happen to you. Allah is gonna take care of you. Allah curses youse all. Allah curses youse and your children and your wife. Allah curse all of youse. May Allah put a disease in your body. All your bodies. May Allah put a very great disease in there so youse can just rot slowly. May Allah put a very big disease. May Allah curse youse, your children and your wives...A great disease in your body and your family doesn't ever help youse. Keep it there...”

Background

4 In the early hours of the morning on 8 November 2005 the police and other support authorities had mounted a massive series of "raids" on the homes of persons suspected of being involved in a conspiracy to do acts in preparation for a terrorist act or acts. Nine of those men have been charged under the present indictment, Mr Jamal being one of them. The authorities had been involved in covert investigation of the alleged conspirators and their associates for many months prior to 8 November 2005. As I understand it, all nine men were arrested on 8 November 2005 and search warrants were executed at their premises, the premises of other persons, and in relation to a number of motor vehicles.

5 The search warrant for the premises at 15 Punchbowl Road, Belfield is very lengthy. It demonstrates inferentially, by its terms, the width of the investigation that had been involved in both the open and covert aspects of the joint operation leading up to the arrests. I have set out the terms of the warrant in full as an annexure to this decision.

6 The police arrived at 15 Punchbowl Road, Belfield, at about 2.39am. In attendance were the warrant holder, Detective Senior Sergeant Stephen Day, Detective Senior Constable Liddiard and Detective Senior Constable Hackett. In addition, there were two searching officers, two video operators, an exhibit officer and two Federal Agents observing on behalf of the Australian Federal Police. As well, there were a number of uniformed police from the Operational Support Group tasked with security for the search warrant. The independent officer appointed to observe the propriety of the operation was Inspector Glinn.

7 I infer from the material placed before me that operations of a similar nature and scope were being carried out at roughly the same time at a considerable number of other premises in the Belfield, Bankstown, Lakemba district and beyond.

8 In his statement (Exhibit 3) Detective Senior Sergeant Day states that when the police arrived at the house, Mr Jamal was standing on the footpath in front of the house, holding a mobile phone in his left hand. He appeared to be talking on the phone. The police approached, asked him to put down the phone and place his arms out. He was then handcuffed, cautioned and told that a search warrant was to be executed on his premises. Almost immediately afterwards, a police video operator commenced to record the events which followed, including details of the execution of the search warrant. Any conversations Detective Liddiard and Detective Day had with the accused were electronically recorded on video cassette tape during the execution of the search warrant.

9 There were members of the accused's family in the house at the time of the arrest. These included his mother, Amena Jamal, his brother Noureddean Jamal, and his three sisters. After a time, the mother and sisters left the premises, although the accused's brother elected to remain at the premises until he had to go to work.

10 The warrant process continued until shortly after 6am on 8 November 2005. A suspension of the process then occurred to enable an extension for the investigation period to be sought and granted. This was made through the Australian Federal Police. Shortly after 8am the execution of the search warrant was resumed. As the warrant indicates, it involved not only a search of the house, but a search of the motor vehicle ULK 830, which was also seized as an exhibit. The search warrant process was concluded at about midday. The accused was then taken to Sydney Police Centre.

Evidence Act s 84

11 Section 84 of the Evidence Act is in the following terms:

“Exclusion of admissions influenced by violence and certain other conduct
(1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by:
(a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person; or
(b) a threat of conduct of that kind.
(2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced.”

12 An "admission" is defined in the dictionary. It includes a representation which is "adverse to the person's interest in the outcome of the proceedings". Accordingly, s 84 is not limited to confessions alone, but is concerned with any statement made by an accused which may be used by the prosecution to the accused's detriment, and can include a lie told by the accused and a statement which might otherwise be regarded as exculpatory (R v Esposito (1998) 45 NSWLR 442; 105 A Crim R 27; R v Horton (1998) 45 NSWLR 426; 104 A Crim R 306).

13 Section 84 replicates in part the common law concept that a confession must be voluntary before it can be admitted. Section 84, however, goes further and requires the Court to be satisfied as well that the admission is not influenced by the conduct set out in the section.

14 The thinking behind the proposal on which the provision is based is set out at ALRC 26 volume 1 para 765, page 436:

“Techniques which are perceived as particularly likely to substantially impair the mental freedom of a suspect may be prohibited, and any evidence produced as a result of them excluded. If interrogators engage in acts of violence, threats of violence, torture or inhuman, degrading or oppressive conduct, then an admission made subsequent to such conduct may be untrue, regardless of the characteristics of the suspect being interrogated.”

15 Where the issue is raised, the onus falls upon the Crown to prove the admissibility of the admission. The standard of proof is upon the balance of probabilities (s 142 (1) Evidence Act 1995). Consequently, the Crown must prove to the requisite standard that the conduct referred to in the section, if it occurred, did not influence the making of the admission. In R v Ye Zhang (2000) NSWSC 1099 Simpson J (at 44) observed:

“...section 84 does not require the isolation of a single reason or a single event or incident or instance of conduct provoking the confession; there may be a number of factors working together, that, combined, cause the admission to be made. If oppressive conduct on the part of police is one of those factors (or, more accurately, if the Crown has failed to negative such conduct as one of those factors) then the evidence is inadmissible.”

16 Simpson J's remarks were approved by Hoeben J (with whom Sully and Bell JJ agreed) in Higgins v Regina (2007) NSWCCA 56. At (26) Hoeben J said:

“I accept that s 84 does not require the isolation of a single reason or a single incident of conduct provoking the confession. There may be a number of factors working together ( R v Zhang ...). I also accept that there is no definition of 'oppressive' in the Act and that the concept should not be limited to physical or threatened physical conduct but can encompass mental and psychological pressure. That said, I am firmly of the view that nothing in the bank interview, either on its own or in combination, amounted to 'oppressive conduct' as envisaged by s 84.”

17 (The Crown referred to a Macquarie Dictionary (third edition) definition of "oppression". This had been adopted and commented on in Hugh Wily v Peter Gerald Fitz-Gibbon (1998) FCA 121, 2 March 1998. At page 8 Hill J said:

“It is not necessary in this case to attempt an exhaustive definition of what constitutes 'oppression'. As the Macquarie Dictionary makes clear, the ordinary meaning of the word involves the exercise of authority or power 'in a burdensome, cruel, or unjust manner'. It may be possible, at least in some cases, to say that conduct will be oppressive when there is some impropriety in the way the admission is obtained.”

18 Mr Scragg provided a definition of "oppressive" which was obtained from a WordNet search. This referred to the adjective in the following way:

“...”oppressive” weighing heavily on the senses or spirit ('the atmosphere was oppressive'), 'oppressive sorrows'
...'oppressive, - tyrannical, tyrannous (marked by unjust severity or arbitrary behaviour)'
e.g. 'The oppressive government', 'oppressive laws', 'a tyrannical parent', and 'tyrannous disregard of human rights'.”

Submissions on behalf of Jamal

19 Mr Scragg relied upon a number of specific circumstances, both individually and in combination. The first was that the search occurred in the early hours of the morning, and it occurred in circumstances where members of the accused’s family, including his elderly mother, were present. Mr Scragg accepted that Jamal was “distressed” about the circumstances in which the search was taking place, but he pointed to the additional fact that members of the family were also significantly “distressed” and “disturbed” about what was happening at their home in the early hours of the morning.

20 Secondly, Mr Scragg pointed to the handcuffing of Mr Jamal and its consequences. Thirdly, there was an incident described as "the crowbar incident" involving Detective Hackett. Fourthly, there was the searching of family members which Mr Scragg submitted was an unlawful exercise. Fifthly, Mr Scragg pointed to the fact that the warrant was not shown and explained to members of Jamal's family prior to those members of the family being searched. This, counsel argued, was a clear breach of s 3H of the Crimes Act 1914 (Cth), and that members of the family were unlawfully detained for a period from leaving the premises. Sixthly, there was the intimidatory nature in which the video camera was continually trained upon Mr Jamal. Seventhly, counsel pointed to the assertion that Jamal was not afforded a statutory right to be present at all times while the search was being conducted. Finally, there was mention of "inappropriate comments" by the police during the course of the search.

21 Mr Scragg took the Court to each of these matters in some detail. In the end, he submitted that the Crown had not discharged the onus it bore to demonstrate that the accused had not been influenced by the various matters relied upon. Mr Scragg submitted that the conduct of the police on the morning in question, both individually and in combination, clearly weighed heavily upon "the senses and spirit" of Mr Jamal. The atmosphere, counsel submitted, was one of “oppressive conduct”. It was in the context of that atmosphere that the accused made the statement attributed to him. Consequently, the Court should find that the statement was inadmissible.

The Crown submissions

22 The Crown took issue with each of the matters raised by Mr Scragg. The Crown accepted that it bore the onus of demonstrating that Mr Jamal's statement was made uninfluenced by matters of the kind relied on by the accused.

23 First, the Crown submitted that the handcuffing of the accused was a matter that fell well within the discretion of the arresting officers. There was no evidence to suggest there was anything improper or inappropriate about the method of handcuffing, or that it caused undue or excessive pain or anything of that kind. Indeed, the Crown submitted that the accused's belligerent behaviour after the handcuffing provided ample justification for the obvious concerns of the police officers involved.

24 Secondly, the Crown submitted that, in effect, it was the accused himself who created the angry, belligerent atmosphere during that part of the proceedings prior to his making the impugned statement. Moreover, behaviour of the same abusive kind occurred on the accused’s part after the statement was made.

25 Thirdly, the Crown submitted that there was no substance in the allegation that Officer Hackett may have acted in some sort of intimidating or threatening manner simply because he had a crowbar in his possession. The Crown submitted there was no evidence to support this, and that the evidence of the accused's brother (who voluntarily decided to remain at the premises) put paid to this proposition. Specifically, the Crown pointed to the fact that the brother himself was abusive to the police on a number of occasions and that this was, so notwithstanding that Hackett was there holding a crowbar. So far as the searching of the accused's family was concerned, the Crown argued that the only reason this took so long was because of the behaviour of the accused himself.

26 Fourthly, the Crown pointed to the fact that an independent officer was present throughout. Officer Glinn did not receive any complaints from the accused or from any member of his family about anything that occurred during the search process. The accused had been informed that there was an independent officer present and that he might make complaints to him. According to the Crown submission, the accused treated both Officer Glinn and the prospect of his utility as an independent officer with complete disdain and indifference.

27 The Crown argued that the various complaints now relied upon by Mr Scragg were not matters of concern to Mr Jamal at the time. He had every opportunity to complain if he wished to. Not only did he not do so, but he was abusively disruptive and dismissive of the police endeavours to obtain his cooperation. The Crown submitted that an overall examination of the accused's behaviour demonstrated the very antithesis of a person who had been subjected to a degree of oppressive conduct. The Crown argued that the police behaved properly and courteously at all times. They were confronted with abuse and inappropriate behaviour by the accused, but did not respond to it other than by way of patient and polite behaviour designed to defuse a difficult situation that was not of police making at all.

Response by Mr Scragg

28 Mr Scragg accepted that individual passages in the transcript showed that his client was "very upset as to what had happened". However, Mr Scragg argued that these passages had to be read in context as to what had occurred up until the point of time each outburst happened. Mr Scragg submitted that initially the accused had cooperated, but that after his handcuffing and the treatment of his family, he became upset for “understandable reasons”.

Resolution

(a) A preliminary question - was the statement an admission?

29 The Crown had submitted that, as it did not intend to rely upon Mr Jamal's statement as an admission, s 84 did not, in any event, apply. This proposition raises an aspect of the evidence which I have, in previous decisions, regarded as one not entirely easy to resolve. Specifically, the Crown has said that it did not intend to rely upon the statement to prove the truth of what was said, but rather as evidence going to the state of mind of the accused. Clearly enough, the state of mind of the accused is, or at least may be, highly relevant to the establishment of the charge in the indictment. Indeed, at least in two respects, the accused's state of mind and, for that matter his intentions as evidenced by his state of mind, are properly described as matters capable of bearing upon the existence of the essential ingredients that the Crown will have to prove beyond reasonable doubt to sustain the charge. Here, it seems to me, the accused's state of mind, as revealed by his statement, is capable of being regarded as directly relevant towards the establishment of at least two of those essential ingredients. Accordingly, the better view is to regard the statement as capable of being an admission, notwithstanding the position taken by the Crown. Consequently, s 84 will have potential application to the evidence. In a proper case, a statement of this kind, if oppression has not been negatived, will be capable of being found to be inadmissible. Of course, whether the statement is an admission, and the degree of weight to be given to it, will be a matter for the jury.

(b) A general comment

30 Obviously it will be necessary for me to address the individual matters raised by Mr Scragg. I propose, however, to say something of a general nature at the outset.

31 There are a number of matters involved in Mr Scragg's submission that I accept. Obviously, the fact that the police arrived in considerable numbers at the accused's home in the early hours of the morning would represent something of an unusual or startling event. People in the house would, in general terms, be upset by the arrival of police intending to conduct a detailed search of their home and motor vehicle. I also accept that Mr Jamal, as the elder of the two brothers, would have had concerns for the welfare of his mother and his siblings. I also accept that the sudden arrival of the police would have entailed a need on their part to respect the cultural niceties of the situation they encountered. By this, I mean that the police needed to keep in mind that they were dealing with an Islamic family and, in particular, that respect would need to be paid to the concerns of the female members of the family particularly. So, in all these respects, there was a clear need for the police to act with restraint, patience and with an eye to calming down any emotionally explosive situation they might encounter.

32 That said, it is my general impression that the police acted very responsibly in that regard. A careful examination of the video of the search, and a careful reading of the transcript of the search, demonstrate, to my mind, that the police behaved properly, reasonably, and with a considerable degree of tact and discretion in a difficult situation. The behaviour of Mr Jamal and, to a degree, the behaviour of his brother was by contrast, deplorable. Even allowing for the unexpected intrusion into his home in the early hours of the morning, the behaviour of Mr Jamal, in particular, was on this occasion aggressive, abusive, threatening and unreasonable. The words and actions of the police, in my view, have to be measured against the background of this menacing, unpleasant and abusive behaviour by the accused himself.

33 I will, when examining the individual complaints relied on by Mr Scragg, point to precise examples of the type of behaviour I have described as abusive and aggressive. These illustrations will demonstrate the unpleasant and unreasonable nature of Mr Jamal's response to the police presence on the occasion. The police were there, armed with a lawful warrant to search the premises and the car. They had a power, in certain circumstances, to conduct an ordinary search and/or a frisk search of any person at the premises. It is clear that the police thought it appropriate to conduct a brief search of the other occupants of the premises, and then to let them go. There were female officers there to assist in that regard. The police officers were significantly, if not thwarted, at least hampered by the behaviour of the accused in particular, by his brother, and to some minor degree by his mother. Noureddean Jamal's behaviour was generally abusive to the authorities. Omar Jamal displayed, at least on this occasion, an attitude of considerable contempt for Australian law. As one of the passages I will set out below (from page 9 of the transcript) shows, he described it as "your fuckin' shit law". That expression, I thought, was fairly typical, on this occasion at least, of his general attitude to the authority represented by the search warrant.

34 As I have said earlier, there was a need for the police to display a sense of tact and discretion in dealing with the accused's family, particularly the female members. By and large, I consider the police displayed such an attitude. That can be hardly said of Omar Jamal, who spoke in a most unpleasant way to female police officers.

35 My general impression is that, far from the police conduct being oppressive in any sense, the only abusive behaviour emanated from Mr Jamal himself and, as I have said, to a lesser degree his brother.

36 The impugned passage appears at the top of page 16 of the transcript. Immediately prior to it Noureddean Jamal said to one of the police officers:

“Think you're tough because you've got that bullet thing beside ya...take it off and see what happens. Not so tough then, nah.”

37 Omar Jamal then said to his brother:

“Not even that ( Arabic ) they have no life. They're scums.”

38 It was in that immediate context that Jamal commenced his “outburst”. He had earlier (at page 11 of the transcript) cursed the police, their family and children. On this second occasion, however, the statement was very calculated and very deliberate. As I said (para 40 of my earlier judgment) the statement was delivered in a very calm manner and, indeed, in a very intent manner. No doubt Jamal was angry when he said it, but this was not an uncontrollable outburst of anger. It was a statement dredged up from the depths of his belief. It expressed, on that occasion at least, a fundamentalist religious view, and an intolerance towards Australian laws and authority.

39 The statement, obviously enough, occurred in the context of all the events of that night. I am satisfied, however, that the making of the statement was not influenced by oppressive conduct, or by any other of the kinds of conduct referred to in s 84 of the Evidence Act. If Mr Jamal's "senses or spirits" were weighed heavily upon, it was not as a consequence of any oppressive conduct by the police, but rather it related to his resentment towards the simple fact that his home had been entered by authorised police officers embarking upon a lawful exercise expressly sanctioned by Australian law.

(c) Handcuffing

40 Mr Scragg's submission was that Jamal waited for the police when they arrived at his premises on 8 November 2005. He complied with all police directions. Nonetheless, he was handcuffed and Mr Scragg submitted that this was in breach of "1999 Constable Education Program dealing with physical skills and operational safety". The notation (which comes from the Police Service Handbook) is in the following terms:

“The decision to handcuff rests with you.
Generally, you are justified in handcuffing prisoners only when they have tried to escape or to prevent escape or injury to themselves or others.
You must have a good reason for handcuffing. Someone handcuffed unnecessarily has a right of action for damages. When you handcuff a prisoner, take all reasonable measures to prevent injury.”

41 As to the initial handcuffing, I consider that this was a matter completely for the discretion of the arresting officers. Hindsight is generally a valuable educator, but not necessarily a useful tool for the making of preliminary decisions. In the present matter, however, Mr Jamal's subsequent behaviour certainly justified the initial decision to handcuff him. Although only a young man at the time, he was powerfully built and presented a physically threatening appearance, particularly when angry. The nature of the investigation into the present conspiracy, the nature of the proposed charge itself and the ambit of the investigation provided ample justification for a decision to handcuff the accused prior to his arrest and the subsequent search of his home and car.

42 The only reference to there being some discomfort in relation to the presence of the handcuffs is at page 13 of the transcript, where Jamal, having said to his family, "Don't speak to these pigs, don't even have sympathy for them" then said:

“Are these little things necessary?”

43 This was a reference to the handcuffs. He was told that they were necessary because he was "aggressive" and under arrest. The following conversation then occurred between Jamal and Detective Day.

“ OJ: Yes, so youse are count poofs, uh?

SD: If that's your interpretation.

OJ: Yes, youse are poofs ( Arabic ). How am I supposed to read this thing and I can't turn it with my fingers?

SD: Sit down and read a page and I'll turn each page for you.

OJ: Flick the next one.

SD: Have you read the first page?”

44 Nothing in this conversation suggests that the accused was in pain or complaining about being in pain.

45 Later in the transcript, during the actual search procedure and after the impugned statement had been made, Detective Day referred to the fact that during a pause in the video, the police had loosened Jamal's handcuffs. The police officer asked the accused, "Are they much more comfortable now?" And he agreed they were.

46 This passage may properly suggest that the handcuffs were becoming, at the particular time, uncomfortable and needed loosening for that reason. There is no other indication either in the video or the transcript to suggest that the handcuffing caused pain, or even a degree of undue discomfort.

(d) The crowbar incident

47 The evidence about this appears in the voir dire transcript taken on 17 and 18 June 2008. The particular transcript related to an application of a different kind focusing, however, on the same events I am concerned with here. The transcript from the earlier application was, by consent, tendered before me on the present application. Noureddean Jamal gave evidence about some aspects of the search. He said he was not given any documents or told why he was being searched. He went into the lounge room and it was there that he saw an officer walking up and down the house with a crowbar. This was a reference to Officer Hackett. His evidence is recorded as follows:

“Q. You have spoken about a police officer walking around your house with a crowbar. Can you describe to his Honour what that police officer looked like?

A. Well, I had come, after they had searched me, I had come into the lounge room, and I was sitting with my mum. I was actually standing up. My mum and my sisters were there, and there was this police with a suit, and he was walking up and down the lounge room with a crowbar, as I remember, and it was a big crowbar. And because I felt threatened at the time I didn't like him walking up and down, up and down the house with a big crowbar in front of my family. So I had said to him, "Excuse me, you know, can you please put the crowbar down? There is no need to walk up and down the house with the crowbar."

Q. I will ask you to slow down and follow his Honour's pen.

A. Then at that stage, as I had told him, "Can you please put the crowbar down? I don't like you walking around my house with a crowbar."

Q. What did he say in response?

A. He came up to me and he said, "This is not your house anymore, it's ours."

Q. Did you respond to that?

A. I think I said, "It's your house, is it?" I think I said, "It's your house, is it?" That's it.”

48 (The transcript of the search does not indicate that Hackett spoke in a threatening manner, rather it was an attempt to explain the police presence and their lawful entitlements).

‘Q. Can you stand up and demonstrate how Officer Hackett--

A. As Hackett came out of kitchen, as the video showed, the footage of the kitchen, he came out and the crowbar was like that (indicating).

Q. For the record you have your left hand extended behind your thigh?

A. Yeah, as in that (indicating). I seen that in the earlier video, the one that you showed me before.

Q. From your position in the lounge room, did you see Rodney Hackett with the crowbar?

A. From the position that I was in, yeah.

Q. Can you describe how Rodney Hackett held that crowbar when you were in the lounge room? If you have to, stand up and demonstrate. It may be useful to use the people in front of his Honour to give relative positions, if that helps.

A. I come out of the lounge room and standing up, and he was walking up and down, say that was me (indicating), he was walking up and down with the crowbar in his hand like that (indicating).

Q. You put out your left hand.

A. Yeah.

Q. Was any contact being made with any object with that left hand?

A. No. He was just walking up and just had the crow bar in his hand, walking up again and turned around, up again, with the crow bar. That's when I said to him "I don't like you walking around my house like that.".”

49 Noureddean Jamal described how the police officer was walking around the house and how he was holding the crowbar. In fact he was walking, the witness said, about between 1 and 2 metres away from members of the family in the lounge room. He said he was searched two times, the first being in the bedroom and the second in the lounge room. He was sitting in the living room with Officer Hackett. He said he felt “insecure” sitting next to the officer with the crowbar.

50 Jamal's brother was cross-examined by the Crown Prosecutor on 18 June 2008. This revealed that, after other family members had been searched and allowed to leave the house, he remained. He said that he chose to stay. He agreed that when he was having the "confrontation" with Officer Hackett his brother told him to, in effect, “shut his mouth and not to talk”. He agreed he had been abusive to the police on that day on a number of occasions. The fact that Hackett was there did not stop him abusing the police. He also agreed that Inspector Glinn was in the lounge room, he thought, at the time he had the discussion with Hackett. No complaint was made to the independent officer. Noureddean Jamal was content to remain in the house with his brother until he had to leave to go to work.

51 During the same voir dire hearing, the accused Jamal gave evidence. He confirmed that he had been asked at the end of the search, before he was taken back to the police station, whether he had any complaints. He agreed that he had been asked this question and responded "No". He agreed that the police officers had placed the copy of the warrant on the coffee table in the lounge room and that he was invited to read it. He agreed that the police officers offered to turn the pages, but he said that he wasn't in the mood to read it at that time. He said his mind was "somewhere else". He said he was "ignoring what they were saying". He repeated "I wasn't taking them up on the offers because my mind was somewhere else". He was re-examined by Mr Carroll and was asked why his mind was somewhere else at the time when the police were reading out the first part of the warrant. He said:

“Because I was looking into my lounge room where my mother and my sisters and my brother were and there was a man walking up and down with a crowbar. I didn't know his name, but he was walking up and down with a crowbar and I felt they were being threatened by that man, so that's where my mind was. I wasn't really concentrating on anything else except my family.”

52 He said that he was telling his family:

“'Don't say anything' or 'Don't do anything', just in case they would hurt them or anything like that. I was trying to make them not do anything.”

53 He said he was concerned about his mother because:

“When I was outside they were going to arrest her. She is a very old lady. She is very sick, and they were going to restrain her.”

54 I was less than impressed by the evidence of Omar Jamal, and of his brother, at least so far as their evidence purported to give genuine insight into the situation in the house on that evening. I am perfectly satisfied there was no conduct by Officer Hackett of a threatening or intimidating kind. I accept that he had a crowbar in his hand, but I do not accept that any threat was made. Moreover, I do not accept that there was any material that would have justified an apprehension that Mr Jamal's mother was about to be arrested. The conversations that are recorded (or translated) in the video show that Jamal was saying to his mother and family, in effect, "Do not talk to the police". It was not a statement made because of a fear the police might do something to members of the family. Rather, it represented his belief that it would be inadvisable for them to say anything in front of the police officers. Jamal himself had been cautioned and he no doubt, knew that he was not obliged to say anything. He was, as he was entitled to do, exhorting his family to take the same attitude.

55 In short, there is nothing demonstrated of a threatening nature emanating from any of Officer Hackett's actions. I am quite dissuaded from any belief that his conduct was threatening to Jamal and his family in any way. I do not accept that Jamal was threatened by Officer Hackett's presence or actions. I do not accept that his "mind was elsewhere", as he said. Quite to the contrary, the video shows that he was very focused, and very much in control of the situation.

(e) Searching family “unlawfully”

56 It is necessary to say something about the manner in which the process of the search evolved. It will be recalled that the accused was arrested outside of the house. He was cautioned by Detective Liddiard at the time of the arrest, and it was shortly after that point in time that the video camera operator commenced recording the events seen on the exhibit. For a short period of time, the accused remained outside the house while the police entered, determined who was in the house and made preliminary arrangements in order to secure the premises. As soon as the accused's attention was drawn to the fact that a video camera operation had commenced, he protested angrily about it, "I don't want it on". From this moment onwards, the accused's attitude was one of attempting to “order” the police as to the way they should conduct themselves during the search. For example, he said to Officer Day:

“Don't go into my house until everybody comes to the lounge room.”

57 When Officer Liddiard then sought to calm him down, he said angrily:

“I don't want to speak to youse.”

58 He then threatened the police that he would take them to court ("youse are gonna pay for it in court"). Officer Liddiard, once again, tried to calm the accused down. He said:

“Omer, Omer, it is not a time to discuss that now.”

59 Once again, the accused replied angrily and dismissively:

“I don't care.”

60 Detective Liddiard introduced himself, but while he was in the process of doing this, the accused interrupted him and gave directions to his family that they should go into the lounge room. The accused asked whether his family "need to be here". He demanded an answer to this question initially on three occasions. Detective Liddiard told the accused that everyone inside the premises would be searched and that the premises would be searched. The accused said to police officers who were trying to coordinate the situation inside the house:

“Don't go fuckin' near her.”

61 And then more angrily and emphatically:

“Do not go near her." (My emphasis to record the manner in which the words were spoken)
“You go near her you see what happens to you alright."

62 Detective Liddiard informed the accused that the police were endeavouring to be respectful of his wishes but the accused became even more uncooperative, hostile and abusive:

“Everything'll be alright, just don't touch me, let go of me, just go inside. And hurry the fuck up, you piece of shit. Do you want to go inside now everybody's in the lounge room?”

63 Once again, Detective Liddiard endeavoured to calm the accused who said that he was “100% calm”. The police brought the accused into the house and asked him to have a seat in the main room. It was at that stage that the accused's brother said to the police:

“You piece of shit. Look how you've got my brother, you piece of shit.”

64 Once again, the accused asked whether his family needed to be there. He was told again by Detective Liddiard that once the premises had been secured, his family would be searched and they would be then free to go. The accused protested about this process. Clearly, the police were becoming exasperated by this behaviour, and told him that the longer he misbehaved, the longer it would take to conduct the family search. The accused's real concern was his stated contention that his family had nothing to do with whatever it was the police were searching for at the premises. He said this on a number of occasions. He insisted they be allowed to leave without search, but the police insisted even more firmly that they would be allowed to go only after they had been searched. It was in that context that Officer Day said:

“No, they don't have to go. They will be searched. Now let me tell you one thing, Omer, if you want to make it hard we will make it harder.”

65 Criticism was aimed at Stephen Day in respect of this remark. I think it is fair to say that the remark was incautious, but at the same time it was understandable in the provocative circumstances that existed. I took the officer to mean that the delay in allowing the family to leave would be all the more longer, if the accused did not desist from his abusive behaviour and his attempt to organise the search on his own terms. The same comment applies to Detective Day's next remark when he said, "No, I will tell you what we're here for and we will make it last as long as we can, all right." (This remark needs to be understood in the context that Officer Day wished to read to the accused the details of the search warrant. This is apparent from the next part of the transcript [page 6] where Detective Day introduced himself and the other police officers, including Inspector Glinn, the independent officer.) The conversation, including the interruptions by the accused, appear as follows:

“ SD: Omer, what I have is a Commonwealth of Australia Search Warrant to search your premises, right. My name is Detective Senior Sergeant Steven Day, Detective Senior Constable Liddiard. We have Mr...

OJ: Don't put your filthy hands on her.

SD: ...Glinn, he's our independent officer.

OJ: Filth.

SD: If you have any complaints about the way it's conducted here...

OJ: Okay, just go do it.

SD: ...legitimate complaint, you have (ind).

OJ: I don't give a shit, just hurry up and do it. See, in court youse are going to pay for this. In court youse are gonna really pay for this, alright, 'cause youse have no right to do this.

SD: I remind that you this is...

OJ: Youse have no right, that's all.

SD: ... being video recorded.

OJ: I don't give a shit, just you know (ind).

AJ: (ARABIC) .

OJ: Don't worry, he's gonna go soon.

SD: Omer, I want you to understand you are not obliged to say anything unless you wish to do so, but whatever you do say will be recorded and will be later used in evidence, do you understand that?

OJ: Who gives a shit.”

66 It will be seen from this interchange that Detective Day was endeavouring to commence the reading of the search warrant and, in that context, he introduced Inspector Glinn to the accused. He was endeavouring to point out that any complaints about the conduct of the search warrant could be made to the independent officer. Throughout this introductory part of the process, the accused continually interrupted in an abusive manner. It was clear that his real complaint was that the police were there at all. There was no complaint about any particular aspect of the process and the accused made it clear that he was going to ignore the presence of the independent officer. Because of his abusive interruptions, Detective Day once again cautioned the accused and reminded him that he was not obliged to say anything, but that statements he made would be used later in evidence. The accused's response to the caution was again one of abuse.

67 Detective Day, however, continued to attempt to explain to the accused his rights. He asked him whether he understood those rights. The following exchange took place:

“ SD: Omar, do you understand that?

OJ: I don't understand shit, just do your work and that's (ind).

SD: No, I need you to understand your rights.

OJ: Mate, you don't need me to do nothing, you can do your job and that's your job to do it and get out of here. Just do your job and that's it.”

68 Detective Liddiard commenced to read the warrant to the accused. Once again he was interrupted by the accused who said:

“Whatever youse do, don't plant shit in my house.”

69 Detective Day ignored the interruption and continued to read from the warrant. While reading out the first two pages of the warrant the detective was again interrupted on two occasions by the accused.

70 The warrant was then placed in front of the accused and the officer told the accused that he would leave the copy of the warrant there for the accused to read.

71 The accused showed no interest whatsoever in reading or examining the warrant and angrily demanded once again whether his family had to be there, did they have to be there "by law". At that point the following conversation took place:

“ SD: Just hang on one moment.

OJ: By law (ind) more. By you're, fuckin' shit law. What the fuck are you looking at man. Don't fuckin' look at me you bitch.

AJ: ( ARABIC ), we will go to Fatima's house.

OJ: You think you're scary huh? You don't scare shit.

SD: Just take a seat and sit down for us, mate. Omer, once each of your family has been searched they are allowed to go.

OJ: Well where's the woman to search them?

SD: We'll bring, we'll bring a woman in.

OJ: Well search them in the room, (ind).

SD: That's right.

OJ: Alright.

SD: You don't tell me what to do, I know how to do...

OJ: I'm going to tell what you to do anyway.

SD: They will be searched in private and we do respect each person's privacy.

OJ: You do not respect shit, that's what, you don't respect shit. Okay, this is respect, you come into my house like this, this is respect?

SD: With a search warrant.

OJ: This is respect?

SD: With a search warrant.

OJ: This is shit. Hurry up and do your fuckin' job, just do it and get out of here, man. I don't want to talk to yuz, just do your job and get out of here. Youse come into my house and, er, (ind) with all this.”

72 The police then discussed searching the accused's brother and indicated that he would be free to go then. Detective Day said:

“And once he leaves the premises he's not coming back in.”

73 To which the accused replied, "No worries." The accused then spoke to his brother and pointed out to him that he was not under arrest and that he was free to leave after his search had been completed.

74 The next matter to be arranged was the search of the accused's mother. This was to be done privately by a female officer. There were further interruptions by the accused and, on this occasion, by his mother as well. The accused's language and behaviour were again abusive, and he told his mother not to talk to the police. While the search was going on, the accused said to a police officer, who was apparently moving in the direction of the search room:

“Don't go out there, you fucking little poof.”

75 This led to the police remonstrating with the accused once more and forcibly requiring him to resume his seat. (See s 3G of Crimes Act 1914 for use of reasonable and necessary force). The accused then called on Allah to curse the police, their family and children. Detective Liddiard said:

“We've got everything under control and we'll get everyone out in five to ten minutes.”

76 The accused's mother then attempted to leave. The police would not let her go until they had checked the contents of the bag she was carrying. This led to another abusive series of remarks by the accused directed towards the police. The accused said:

“Go, don't come back in. You have to record you little fucking pigs over here because they might plant something into my house. So you have to record these little pigs, especially that little pig over there. You're a pig and you think you're a fuckin' man, come outside and I'll show ya, see whose a man, think youse are a bloody man, uh.”

77 At that point the accused's brother indicated that he wished to stay in the house and not to leave with the other family members. Detective Day asked one of the officers to search the brother who said, "You just searched me, mate, I've been sitting in the same spot." (He, in fact, had been searched earlier in the bedroom).

78 Notwithstanding, the relevant police officer briefly searched the brother a second time.

79 There was then discussion whether the family members who wanted to leave, could leave. Detective Day indicated that once everyone's details had been given to the police, they could go. He said:

“We need to obtain all the details of everyone that was here. A Commonwealth warrant entitles us to do that, okay, so I just need full names, okay, of who was here, that's all I'm asking.”

80 (Strictly speaking, the warrant did not appear to confer this entitlement on the police executing the warrant, but I do not consider this a major breach of proper process).

81 The accused then asked Detective Day, in relation to the search warrant:

“How am I supposed to read this thing and I can't turn it with my fingers?”

82 Detective Day asked the accused to sit down and indicated that he would turn each page for him so that the accused could read the warrant. The accused appeared to become disinterested in pursuing this process and then proceeded a short time later to engage in further abuse of the police officers. The following exchange occurred in relation to a female officer:

“ OJ: Having a fun time, you little slut.

SD: Omer, there's really no need for that sort of language.

OJ: Shut up, don't even...

SD: No, don't tell me.

OJ: Shut up. You want to come to my house and do this.

SD: I'm asking you not...

OJ: You want to come into my house and do this.

SD: ...to speak to a lady like that.

OJ: You want into my house and do this shit.

SD: I am in your house.

OJ: Oh you fuckin', you're a rat.

SD: If you've got any problems aim at me not the women.

OJ: Shut up, man, just shut up.”

83 The police were then engaged in taking photographs of the rooms prior to the video camera recording of the actual search. During this process Detective Day offered to turn the next page of the warrant for the accused to read. The accused appeared disinterested in the process. The following exchange occurred:

“How do I know if these poofs are not plantin' stuff in my house. Are they gonna take, er, are they going to video camera with them?
TL: That's why we are photographing all the rooms.

OJ: Yeah? You can't just slip something under the bed or something before you photograph it.

TL: We're photographing all the rooms, Omer...if you've got any questions in that regard I suggest Inspector Glinn might be the one to refer them to.”

84 The accused did not raise any questions with, or make any complaints in that regard to Inspector Glinn. Shortly afterwards Detective Day indicated that the process of searching the house one room at a time was shortly to commence. The accused said that he wanted to be present "Everywhere youse go". Detective Day agreed to this and the video camera processing of the search of each room then commenced with the accused present.

85 During the search of one of the rooms, the accused became abusive once more. The following is recorded at transcript 18 to 19:

“ TL: Omer, take your foot off the door, alright, okay. [BANGING NOISE] If you inhibit the execution of this warrant you will be charged in relation to it, do you understand that?

OJ: (ind) charged. I don't want to listen to your voice.

TL: Alright, I'm just telling you what is gonna happen.

OJ: I don't want to listen to your voice.

SD: Okay but if you interfere with any of the officers conducting this, that is what is gunna happen.

OJ: Just interfered with me (ind).

SD: Omer, Omer, listen, if you want to keep it up, Omer, you will be going away from here...straight to Sydney Police Centre into the cell, okay. That is your last warning...do you want to push it or not?

OJ: I'm allowed to talk whatever aren't I?

SD: No, you're not allowed to push a door and not allowed to hinder.

OJ: Well he's the one...he just pushed the door.

SD: Argue with me if you like.

OJ: He just pushed the door back.

SD: If you want to keep it up you'll be going and your brother can stay here and do the search warrant: What's it going to be?

OJ: Can youse keep on searching?

SD: No, we can't. We're recording the exhibits we've got.

OJ: Do your job.

SD: ...and they'll come back and they'll keep searching.

OJ: Do your job.

SD: I am doing my job.

OJ: That's it, just do it, and don't speak to me, that's it, do your job and don't speak to me.

SD: No, I won't be speaking to you. Do it again like that and you will be going.

OJ: Alright, do your, just do your job, hurry up, man.”

86 I have taken some considerable time to set out not only the process and timing of the searching of the accused's family, but all the surrounding circumstances and happenings. The detail quotations from the transcript do not necessarily give the flavour of the level of abuse involved in the accused's remarks and behaviour. It is necessary to view carefully the video itself to get the full picture. As I have said earlier in my general comments, the level of abuse and disruptive behaviour by the accused remained persistent throughout the preliminary stages of the process and continued into the search process itself.

87 In my opinion, it is not open to the accused to complain that the warrant was not fully read to him, or to assert that he did not have the opportunity of reading it, notwithstanding that he was handcuffed at the time. It is quite apparent that Detective Day intended to read the whole of the search warrant to the accused, but his interruptions to the process simply made this virtually impossible. Moreover, the delay in having the searches carried out on members of the family to enable them to leave may fairly be sheeted home, not to the police, but to the behaviour of the accused. So far as the search warrant was concerned, the police offered to turn the pages for the accused so that he could read them carefully and at his leisure. The video indicates that he was not interested in taking up this offer.

88 The accused gave evidence on 19 June 2008. In his evidence-in-chief he said that he had never seen a document headed "Rights of the Occupier". His attention was drawn to one of those rights, namely entitlement of a person who is to be searched under a search warrant to have a copy of the warrant provided before the search. He said he was not told about this right and it was a right he would have insisted on for the benefit of his family.

89 In cross-examination, however, the accused agreed that he had made no complaint to the independent police officer about any matter involved in the search process. He was also taken to transcript 45 of the video recording. At that point he had been asked whether he had any complaints or anything that he wished to raise with the officers in regards to the way the search warrant had been conducted. He agreed that he had replied in the negative to this question.

90 In relation to the warrant that had been partially read to him and then placed on the table before him, he agreed he had been invited to read it and that the police officers had offered to turn the pages. He said that he "wasn't in the mood to read it at that time". He said his "mind was somewhere else". He insisted he wasn't "really knocking (the offer) back". He maintained he was "just in a different state of mind at that moment". At pages 10 and 11 of the transcript of 19 June 2008, the following questions and answers appear:

“Q. You told us it is because of that mindset that you didn't take the police up on what they were saying; for example, reading the warrant?

A. I was ignoring what they were saying.

HIS HONOUR

Q. Sorry, I was--

A. Ignoring.

CROWN PROSECUTOR

Q. It is more than ignoring. You weren't taking them up on the offers. That's correct?

A. I wasn't taking them up on the offers because my mind was somewhere else.”

91 I have earlier rejected the suggestion made by the accused in his evidence that "his mind was elsewhere". The truth was, as appears from a careful examination of the video recording, that the accused was completely disinterested in the content of the search warrant, and in a recitation of his rights. His real resentment related to the fact that he was the subject of a search warrant at all. Despite being under arrest and handcuffed during the early part of the search warrant, he was the dominant and controlling figure in the process during that period. This extended to the position and behaviour of his family.

92 As I have indicated, the accused had no interest himself in the warrant or its contents. Equally, I do not accept his complaint that he would have insisted, had he known of the entitlement, that his family members be shown a copy of the warrant.

93 The search warrant authorised the executing officer or a constable assisting to conduct an ordinary search and/or a frisk search of any person at the premises when the warrant was executed. This power arose if the executing officer or the constable "suspects on reasonable grounds that the person has in his or her possession evidential material".

94 "Evidential material" means a thing relevant to an indictable offence, including such a thing in electronic form. (Section 3C of the Crimes Act 1914 (Cth)).

95 "Thing relevant to an indictable offence" means: ...

(a) either of the following:
(i) anything with respect to which an indictable offence has been committed or is suspected, on reasonable grounds, to have been committed.
(ii) anything with respect to which a State offence that has a Federal aspect … has been committed or is suspected, on reasonable grounds, to have been committed or
(b) anything as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of any such (indictable) offence.
(c) anything as which there are reasonable grounds for suspecting that it is intended to be used for the purpose of committing any such offence (s 3(1) of the Crimes Act 1914”.

96 Similarly, s 3F(1)(c) and (d) of the Crimes Act 1914 authorise persons executing a search warrant to search for and seize the kinds of evidential material specified in the warrant, and to enable the seizure of things that are believed on reasonable grounds to be evidential material. Section 3F(1)(b) also permits the warrant to enable an ordinary search or a frisk search on, for example, the grounds specified in the warrant issued to Detective Day relating to the accused's premises at 15 Punchbowl Road, Belfield.

97 Consequently, I conclude that the police were acting within their authority when they determined to search briefly the members of the accused's family. The timing of the process they adopted in attempting to read to the accused his own rights, including the details of the warrant, prior to searching the family members and letting them go, was a reasonable one. The premises had to be secured, five people had to be briefly searched and the accused had to be arrested, cautioned and shown the police entitlements under the terms of the search warrant. All this could have been done in quite an orderly and timely fashion. The fact it took longer than might be expected was primarily because of the behaviour of the accused. It was a matter for the discretion of the police as to how the sequence of these events were to be organised and scheduled.

98 The fact that Noureddean Jamal was searched twice does not appear to me to involve any impropriety or irregularity. He had been searched briefly once in his own bedroom. It was only later when he was in the lounge room that police conducted a second brief search. It is open to infer that the police wanted to determine, prior to his leaving the house, that he was not taking any evidential material with him. This was not, in my view, unreasonable and was not prohibited by the terms of the warrant.

99 Section 3H of the Crimes Act 1914 requires that, if a person is searched under a warrant in relation to premises, the executing officer or a constable assisting must show the person a copy of the warrant. In addition, the executing officer must identify himself or herself to the person at the premises or the person being searched, as the case may be. (Section 3H(3) and (4)).

100 In my opinion the police officers failed to comply with these sections. It was incumbent upon the searching officer (or his superior), to show the warrant to each of the persons being searched and to identify the executing officer. It does not appear so far as I can gather, that either of these steps were taken.

101 It appears, however, that the family members were gathered in the lounge room. They were able to see, or at least hear, the attempts the police made to read the warrant to the accused. They were able to hear the identification of police officers made to Omar Jamal. They were able to hear the attempts made by the police to turn the pages of the copy warrant to enable the accused to read the warrant if he had wished to do so. It would have been apparent to them that the accused himself had no real interest in having the warrant read to him, or in inspecting the details of the warrant for himself. Neither of those situations exempted the police from showing a copy of the warrant to the family members prior to the search of each of them being conducted in the bedroom adjacent to the lounge room. The general circumstances make it understandable, however, as to why these formal matters, important though they be, were not observed. In all the circumstances of the matter, I do not consider that the breaches involved were major or deliberate and, indeed, some sympathy can be extended to the police officers, in all the circumstances, for their failure to comply strictly with the requirements of the Commonwealth legislation.

102 I do not consider that the family members were detained unlawfully. They were free to go as soon as the searches on their persons had been concluded. The fact that this took longer than normal was primarily due to the disruptive behaviour of the accused. No complaints were made about this situation by the accused or by any member of the family. Both the accused and his brother certainly knew there was an independent officer there whose task would include the receipt of complaints, legitimate or otherwise. No complaints were made. The brother chose to remain in the premises after his second search had been completed. He heard the warrant being read to his brother although he too apparently had no real interest in the process

(f) The accused not given the right to be present at all times

103 Section 3P of the Crimes Act 1914 gives a right to the occupier of premises to be present at the premises and entitled to observe the search being conducted. This right ceases if the person, however, impedes the search. The section does not prevent two or more areas of the premises being searched at the same time. In my opinion, there was substantial compliance with s 3P. The accused was taken around the premises while the video search took place. Indeed, he was disruptive on one occasion and, notwithstanding this, the police allowed him to remain with the searching officers while other rooms were searched. He made no complaint about the conduct of the search at its conclusion. It is true he expressed a concern that, prior to the search commencing, officers were taking photographs of the rooms. The concern he expressed was that something might be "planted" in the rooms. The police explained to him that the photographing was occurring so that there would be a record of the contents of the rooms. The reason for the photographing was to provide independent proof that nothing had been planted during the search. The photographs, consistently with this precaution, were taken before the search proper commenced. In any event, s 3J of the Crimes Act 1914 gives a power to take photographs for a purpose incidental to the execution of the warrant. In all those circumstances, I consider that the accused was not denied his rights to observe the search being conducted.

(g) The video camera was inappropriately trained or focused on the accused

104 It is true that the video camera was predominantly focused on the accused during the early part of the proceedings before the search proper commenced. This was hardly surprising as the accused had made himself the focus of all attention by his abusive and disruptive behaviour. It was appropriate, in my opinion, that the video did focus on his activities during this early period of the search, precisely, because of the type of complaint that is now being made. The video taping in this fashion, enabled the Court to determine, in an objective manner, whether oppressive conduct had occurred from shortly after his arrest to the time when the search proper commenced. An examination of the video taping shows that the camera thereafter focused on the search rather than simply on the accused himself. The power to use a video camera for purposes incidental to the search warrant is confirmed by s 3J of the Crimes Act. It is clear enough that the accused did not want to be videotaped. Indeed, he resented the fact that he was being videotaped, just as he resented the search warrant procedure generally. I am satisfied, in any event, that the videotaping process that was undertaken did not influence the making of the impugned statement by the accused.

Inappropriate comments by the police

105 The only suggestion that an inappropriate comment was made appears from a remark appearing at page 14 of the transcript. The conversation occurs as follows:

“ OJ: Where's my phone?

TL: (On phone) Hello?

OJ: Hey, you poof.

TL: (On phone) G'day mate. Yeah (ind).

M: We're just having a good time...happy to put off the search for security.”

106 This last remark, attributed to an unknown male police officer, may or may not have been inappropriate. It is impossible to know either from the transcript or the video what its real context may have been. Assuming, however, in favour of the arguments advanced on the accused's behalf that the remark was inappropriate, it does not appear to me to have had any influence on the accused. It will be recalled that the accused’s next remark was an extremely abusive statement to a female police officer, although the context of that remark is itself unclear. It does not appear to have anything to do with the apparently flippant remark passed by the unknown male officer.

General conclusion

107 In my view, the Crown has clearly discharged the onus it has to prove the admissibility of the impugned statement. I am perfectly satisfied that the conduct referred to in the accused's submissions, whether viewed generally or in individual terms, could not possibly be classed as oppressive conduct, and did not, in any event, influence the making of the admission. The accused was undoubtedly angry. But his anger and resentment arose out of the fact that his home and family had been the subject of a lawful search warrant. It was only in that sense that the conduct of the police had aroused his ire. In any event, the real context of the statement made by Jamal at page 16 of the transcript was the conversation recorded between his brother and himself reinforcing their mutual dislike and distrust of police officers carrying out their duties. That was, as I have endeavoured to show earlier, the immediate context of the remark, even though it occurred, obviously enough, in the overall context of all the circumstances of the evening. The statement was delivered, however, in a very calm manner, and indeed in a very intent manner. It was, no doubt in part, motivated by anger and resentment, but it was very deliberate nonetheless. The statement was made by the accused in the exercise of his free will to speak. In that sense, it was a voluntary statement. There was no conduct on the part of the police, in my view, that could legitimately be described as oppressive so as to undermine the reliability of the statement made. Of course, the issue of its reliability and the weight to be given to it is a matter for the jury not the trial judge.

108 The application that the statement be held to be inadmissible is refused.