Regina (C'Wealth) v Baladjam [No 48] - [2008] NSWSC 1467

CITATION: Regina (C'Wealth) v Baladjam & Ors [No 48] [2008] NSWSC 1467

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: Order that the Notice of Motion dated 4 July 2008 be dismissed.

CATCHWORDS: CRIMINAL LAW - Application to exclude admissions made by accused on the basis of oppressive police conduct - Proper construction of s 84 Evidence Act 2005. - CRIMINAL LAW - Application to exclude from trial items removed during execution of a search warrant - Suggested breaches of ss 3K(3)(a) and (b) of Crimes Act 1914 (Cth) - Failure to notify the occupier of the premises from which items have been removed of the place and time at which the subsequent examination will be carried out - Failure to allow the occupier or his representative to be present during the subsequent examination - Proper construction of section. - CRIMINAL LAW - Breaches of ss 3K(3B) and (3C) - Failure to make application for extension of time in the name of the executing officer - Failure by executing officer to give notice of the extension application to the occupier - Failure to give adequate notice to occupier's solicitor - Proper construction of ss 3K(3B) and (3C) of Crimes Act 1914 (Cth). - CRIMINAL LAW - Alleged failure to give a copy of search warrant to a person in the position of alternate occupier - The requirements of s 3H of the Crimes Act 1914 (Cth) - Proper construction of section. - CRIMINAL LAW - Alleged breach of 3P of Crimes Act 1914 (Cth) - Failure to allow occupier or alternate occupier to be present during the search - Proper construction of section in circumstances where occupier has been arrested, detained and taken away from the premises. - CRIMINAL LAW - Proper construction of s 23G of the Crimes Act 1914 (Cth) - Failure to allow an arrested person to communicate with friend, relative and legal practitioner - Whether alleged failure capable of amounting to oppressive conduct - Whether any breaches of the accused's rights under the Crimes Act 1914 (Cth) had any bearing on his making the statement sought to be excluded. - CRIMINAL LAW - Applicability of ss 135 and 137 and 90 of Evidence Act 1995 - Whether statements should be excluded as being unfairly prejudicial or unfair to the accused. - CRIMINAL LAW - S 138 Evidence Act 1995 - Ambit of discretionary considerations and matters relevant to decision as to whether evidence should be excluded where breach has been established.

LEGISLATION CITED: Criminal Code Act 1995 (Cth)
Crimes Act 1914 (Cth) ss 3 H, 3K, 3P, 23D, 23F and 23 G
Cyberspace Act 2001
Evidence Act 1995 ss 84, 90, 135, 137 and 138

CASES CITED: Commissioner of Australian Federal Police v Oke [2007] 159 FCR 441, 449 at (3)
DPP v Coe [2003] NSWSC 1 May 2003
Egglishaw v Australian Crime Commission [2006] FCA 819
EM v R [2007] 239 ALR 204; [2007] ACS 46 at 109 per Gummow and Hayne JJ
Hart v Commissioner Australian Federal Police [2002] FCAFC 392
Harts Australia Limited & Ors v Commissioner Australian Federal Police [2002] 117 FCR 358 at (24) per Drummond J
Higgins v Regina [2007] NSWCCA 56
Markovina v The Queen (1996) 93 A Crim R 149 at 172
New South Wales v Corbett [2007] 230 CLR 606, 612 at (22)
Ousley v The Queen (1997) 192 CLR 69, 111 per McHugh J
Papakosmos v R (1999) 196 CLR 297
R v Blick [2000] 111 A Crim R 326
R v Camilleri [2007] 68 NSWLR 720
R v Cornwell NSWSC (ureported 20 February 2003) (Howie J)
R v EM [2003] NSWCCA 374
R v Esposito (1998) 45 NSWLR 442; 105 A Crim R 27;
R v GK [2001] 53 NSWLR 317 at 324
R v Haddad & Treglia [2000] 116 A Crim R 312 at (73-75)
R v Horton (1998) 45 NSWLR 426; 104 A Crim R 306
R v Petroulias [No 8] 2007 NSWSC 82
R v Petroulias [No 9] 2007 NSWSC 84
R v Pinkstone SCWA (unreported) 10 March 1997 (White J)
R v Serratore (1999) 48 NSWLR 101
R v Su & Ors (1997) 1 VR 1 at pp 37 and 38
R v Suteski [2002] 56 NSWLR 182 at 199 (116)
R v Ye Zang [2000] NSWSC 1099 Simpson J (at 44)
Robinett v Police [2000] 78 SASR 85; 116 A Crim R 492 per Bleby J
Smith v The Queen [2001] 206 CLR 650
Williams v Keelty [2001] FCA 1301; [2001] 1111 FCR 175 at (235) per Hely J

PARTIES:
Regina (C'Wealth) v Omar BALADJAM [No 48]
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 -

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 48]
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 to exclude statement made by Khaled Cheikho on 8 November 2005 - Application to exclude from trial items taken during the execution of a search warrant on 8 November 2005 at Khaled Cheikho’s home - Section 84 of Evidence Act – Oppressive conduct - Breaches of ss 3K(3)(a) and (3)(b) of Crimes Act 1914 (Cth) - Breaches of ss 3K(3)(A) and (3)(B) of Crimes Act – Suggested breaches of ss 3H and 3P of Crimes Act – Construction of sections – s 138 of Evidence Act 1995 – Discretion exercised to allow evidence – Relevant principles and considerations

1 HIS HONOUR: This is an application by Khaled Cheikho to exclude statements made on 8 November 2005, and to exclude material taken in the execution of a search warrant at 3/63 Taylor Street, Lakemba.

2 On 7 November 2005, an authorised issuing officer signed two search warrants in favour of Federal Agent Colin Hunt. The warrant was "signed over", ultimately coming into the possession of Detective Sergeant Paul McDonald whose task it was to be responsible for the execution of the warrants.

3 The first warrant related to premises known as Unit 3, 63 Taylor Street, Lakemba, New South Wales 2195. I shall refer to it as the premises warrant (a copy of it appears as annexure A to this decision). The second warrant - a vehicle warrant - related to a proposed search of a Holden motor vehicle, registration AG61GE. The premises and motor vehicle were associated with Khaled Cheikho, one of nine men presently on trial for a charge of conspiracy to do acts in preparation for a terrorist act or acts (ss 101.6 and 11.5 Criminal Code Act 1995 (Cth).

4 The search of Khaled Cheikho's premises and car were part of a wider counter-terrorism operation. The early hours of the morning of 8 November 2005 had been set aside as the time for a major police "swoop" on a number of homes in Sydney's western suburbs. This was a very large-scale operation involving a considerable number of New South Wales Police, Federal Police and other persons. The premises at unit 3, 63 Taylor Street, Lakemba, were one of those targeted for search and seizure as part of the overall counter-terrorism operation. It was plainly envisaged as part of the operation that a number of persons would be arrested and their homes searched. As it happened, during the early hours of that morning and later that day, all nine of the present accused were arrested. Khaled Cheikho was cautioned and placed under arrest at about 2.30am on 8 November 2005. His premises were then subjected to a detailed forensic procedure. At the conclusion of that operation, during which time Detective Sergeant McDonald had read and explained the search warrants to the accused, the search proper in relation to the vehicle and premises commenced. The accused himself was taken away shortly before the search commenced. He was taken to Surry Hills Police Station at about 4.50am and there placed in custody. The search at his home commenced at about 5am and concluded at about 9am.

5 The searching officers seized a considerable number of items from the premises and the motor vehicle, details of which were entered by Senior Constable Telfer into a Fields Exhibit Book. Senior Constable Telfer retained custody of the various items for a time. Later, an independent officer, Acting Inspector Wright, Detective Constable McDonald and Senior Constable Telfer went to a nearby property at Lakemba. Prior to the search commencing, the accused's wife, Ms Wisudo and her child had been taken at their request to Ms Wisudo's mother's place. They were escorted there by two female officers. Ms Wisudo was at her mother's place when the police officers called shortly after 9am on 8 November 2005.

6 Ms Wisudo signed each page of the property seizure exhibit form and was given a copy of the forms. The seized items were then taken to Bankstown Police Station, entered into the Bankstown Police Station exhibit book and retained there.

The present applications by notice of motion dated 4 July 2008

7 Khaled Cheikho has by his notice of motion, sought to challenge or exclude various pieces of evidence sought to be relied on by the Crown at trial. These related, in a number of instances, to evidence sought to be led not only against Khaled Cheikho but against other of the accused as well. The present applications, however, relate to two specific areas involving only Khaled Cheikho. The first identified aspect seeks to exclude a statement made by the accused shortly after he had been cautioned and arrested on 8 November 2005. The statement appears at page 4 of Exhibit “A”. Detective Gawel had explained to the accused that the police were then conducting a forensic procedure in the premises. He told the accused that "when they come out the premises will be sealed and then we'll wait for the return of the forensic examination". At this stage, the accused said:

“ [ARABIC] Did Howard ever tell you this, did that cock sucking mother fucker tell you this. Tell him from me, tell him, tell him the guy that you raided at 2 o'clock told you to get fucked. Tell him I told you to...told you to go and get fucked Howard you motherfucker. Tell him I swear by Allah [ARABIC] you fear me not, you have put no fear in my heart, no fear [ARABIC] with all thanks to Allah (ind) destroy the wrongdoers. The annihilator of the tyrants and of the infidels. This is who we worship, who do you worship, Howard and the legislations. Your democracy full of hypocrisy. Is that it? We worship Allah [ARABIC] Sharia law is gonna prevail throughout this land, it's gonna be ruled by it, you tell Howard this, tell him, Islam is gonna rule this land. Sharia law, Sharia law you poofter, Sharia law, go and learn about it because you're gonna be ruled by it, this is a promise by Allah. The prophets (ind) promised us... said the land, all the lands, all the lands, is Allah's land, Allah created it and he's given it to the Muslims and the Muslims are gonna rule in it. By Allah's law, the one and only law that's worthy, worthy or ruling mankind, no democracy rubbish. It's full of shit. So you tell Howard this and pass it on to Bush the motherfucker. Tell him Abu Mosayed is gonna come and chop him up.

DG: Who, sorry?

8 (Detective Sergeant Gawel agreed that the second reference to Sharia law in the text was a remark by him, repeating the expression Khaled Cheikho had used).

9 Khaled Cheikho argues that the statement is not relevant to any fact in issue in the trial. Secondly, his lawyers, Messrs Waterstreet and Lange, argue that the evidence, if relevant, is inadmissible pursuant to s 84 of the Evidence Act, or that it ought to be excluded pursuant to ss 90, 135 and 137 of the Evidence Act.

10 The second area of attack focused upon s 138 of the Evidence Act 1995. This section was sought to be applied to exclude, firstly, the statement made by Khaled Cheikho referred to in the last paragraph. The "significant breaches" of the law identified were (a) failure to inform the accused of his rights pursuant to s 23G of the Crimes Act 1914 (Cth) and (b) a failure to accord the accused a right to be present while the search of the premises and vehicle was undertaken.

11 Secondly, s 138 of the New South Wales Evidence Act was sought to be relied upon to exclude all the material seized from both the premises and the motor vehicle. There were identified, however, specific "breaches" by the police in relation to the four computer hard drives and the CDs taken from the premises. On the assumption that these items were not "seized" within the terms of the warrant, but were removed for subsequent examination pursuant to the powers in s 3K(2) of the Crimes Act 1914 (Cth), the police had failed to comply with the legislation in the following respects: First, neither the accused nor his wife, as occupiers, were informed of the place and time at which the "examination" of the items was to be carried out. Secondly, they were not allowed, as a consequence, to be present at the subsequent examination, whenever it occurred (ss 3K(3)(a) and (b) Crimes Act 1914). Thirdly, neither the occupiers nor their representatives were given an opportunity to be present when the application for an extension of the examining period was sought and granted on 10 November 2005 (s 3K(3B) Crimes Act 1914). Fourthly, the application for an extension of time was not made by the "executing officer" but by another police officer and, as a consequence, the extension granted was invalid. (Section 3K(3B)). Fifthly, in relation to the CDs (as opposed to the hard drive), the police took no steps whatsoever to comply with the provisions of s 3K at all.

12 In relation to all items seized, the submissions of the accused (in their final form) identified the following further alleged breaches: First, use of the wrong property seizure form (a New South Wales form rather than one designed to reflect the items taken after a Federal search); service (if it occurred at all) of an imperfect occupiers form. Thirdly, there was a failure to allow either Khaled Cheikho or his wife to be present (as occupiers) during the search. Fourthly, there was a failure to show a copy of the warrant to Ms Wisudo, and, finally, inappropriate procedures had been adopted in relation to Ms Wisudo and the signing of the Property Seizure document.

The facts surrounding the matters involved in the applications

13 The original search warrants were issued by Ian Peebles, an issuing officer within the meaning of the Crimes Act 1914. The warrant recites the issuing officer's satisfaction that, by information on oath, there were reasonable grounds for suspecting that "evidential material" as defined in the Crimes Act 1914 would be present at unit 3, 63 Taylor Street, Lakemba. The warrant recites that the "evidential material" satisfied all of three stipulated conditions. The first was that the evidential material (being a thing relevant to an indictable offence) included some 62 items, which related to one or more of 31 persons or businesses (including Khaled Cheikho himself). The third “satisfied” condition was that, in relation to those items, there were reasonable grounds for suspecting that they would afford evidence as to the commission of certain stated terrorism offences. The “things” stipulated included Internet files and/or print-outs; political, extremist and/or religious propaganda; and photographs, videos, CDs, DVDs or other imagery. It also included personal computers, magnetic and digital storage media. It extended to any “of these stored on a computer or on a computer storage device”.

14 The premises warrant authorised Federal Agent Hunt to carry out a number of the functions generally authorised under s 3F of the Crimes Act 1914. These included entering the premises, searching for and recording fingerprints found at the premises, and taking samples of things found at the premises for forensic purposes. It extended to searching the premises for any evidential material that satisfied all of the three conditions referred to in the warrant, and to seize any such evidential material that might be found. It also authorised the executing officer to seize any “other thing” found at the premises in the course of the search that the executing officer for the constable assisting believed, on reasonable grounds, to be evidential material in relation to an offence to which the warrant related. The warrant also authorised ordinary searches and frisk searches of any person who was at or near the premises in the circumstances outlined in the warrant. The warrant asserted, in its terms, that a statement of the rights of the occupier of the premises was attached to the warrant. The warrant was in force for a period of seven days and permitted execution "at any time".

15 A statement from Federal Agent Hunt shows that he had been in attendance at the Downing Centre Court complex Liverpool Street on 7 November 2005 where he obtained search warrants in relation to some 14 premises and 19 motor vehicles. On the same day he signed over the search warrants for the subject premises to Detective Senior Constable Robert George. A statement from D S C Robert George shows that on the evening of 7 November 2005, George had attended a briefing at the New South Wales Crime Commission. He spoke to some of the warrant holders and signed over the warrants for the subject premises to Detective Sergeant McDonald. Later he and a number of other policemen attended the Westmead area where there was a detailed briefing regarding the proposed execution of all the search warrants.

16 In attendance at this briefing were Detective Sergeant McDonald and Detective Sergeant David Gawel. The latter is attached to the investigation unit of the Counter-Terrorism Coordination Command of the New South Wales Police Force. The statements of the two police officers, McDonald and Gawel, confirmed that they were actively involved in the extensive briefing process that took place on the evening of 7 November 2005 at the New South Wales Police Campus, Westmead. It was D S Gawel's understanding that he was would be responsible for the arrest and taking into custody of Khaled Cheikho. D S McDonald would be responsible for the conduct of the search itself.

17 After the conclusion of the general briefing at Westmead, D S Gawel conducted a more specific briefing with the members of the search team in relation to the specifics of the premises at 3/63 Taylor Street, Lakemba. He also discussed other issues relating to a police operation then known as "Strike Force Hammerli". Following this briefing, D S Gawel, in company with Detective Ryan Malcolm and Plainclothes Constable Telfer travelled to the Enfield area. There, they had a final briefing with the search warrant team. Officers from the Forensic Services Group took a control swab for explosives from DS Gawel and other nominated members of the search team. Once this task was completed, the entire search team then travelled to the vicinity of Taylor Street, Lakemba.

18 According to the statement by DSC Ryan Malcolm, the officers involved in the search warrant team included the following:

19 Also assisting in the execution of the warrant were Sergeants Finley, Roach, Skeffington and Senior Constables Lee, Seirota, Petheram, and Tull from the Operational Support Group.

20 According to Ryan Malcolm's statement, the team arrived, comprising about 20 persons, at 3/63 Taylor Street, Lakemba, about 2.30am. The statement reads as follows:

“About 2.30am I have, along with the rest of the search warrant team, approached the front door of the premises at 3/63 Taylor Street, Lakemba. Detective Sergeant McDonald has knocked on the front door, identified himself verbally as a police officer and asked if someone could open the door. I heard a male voice from inside the premises reply...Khaled Cheikho has opened the main front door, with the security door remaining closed and locked. Detective Sergeant McDonald informed the occupants that he was a police officer and that he had a warrant to search the house...

I said, 'Khaled, I'm Senior Constable Ryan Malcolm of the New South Wales Police Counter-Terrorism Command. You are now under arrest under section 101.6 of the Commonwealth Criminal Code - acts in preparation for a terrorist act. Do you understand that?'

Khaled Cheikho said, 'No.'

Detective Sergeant Gawel said, 'Khaled, I'm Detective Sergeant Gawel from the New South Wales Police Counter-Terrorism Command. Do you understand you are under arrest?'

Khaled Cheikho said, 'No.'

Detective Sergeant Gawel said, 'Do you understand you are not free to go?'

Khaled Cheikho said, 'No.'“

21 In his statement Detective Sergeant Gawel said that Khaled Cheikho was then handcuffed and was surrounded by four police officers. A number of other police were standing in the near vicinity. Detective Sergeant Gawel formed the opinion that Khaled Cheikho could clearly understand him and was aware that he was not free to go.

22 Detective Gawel then said to Khaled Cheikho:

“Khaled, what we intend to do is to have a female officer enter the house and get your wife and child out. Then some forensic police will enter and conduct a forensic procedure.”

23 Khaled Cheikho said:

“No way, get fucked, no one is going into my house, motherfucker.”

24 Detective Gawel then administered the usual police caution to Khaled Cheikho. A female officer then entered the house and a short time later this officer, in company with a female and child, came out of the house. Officers Gawel, Malcolm and McDonald then entered the house and ensured that there were no other persons within the premises. They then left the house to enable forensic officers to set about starting the implementation of forensic procedures. By this time the video operator had commenced operating the video camera and statements made by Khaled Cheikho were recorded on video cassette. The transcript of the video recording statement indicates that the video-taking commenced at 2.46am. DS Gawel introduced himself and Detective Malcolm, presumably for the benefit of the video camera. At that time police officers appeared to be "frisking" the accused. The accused said, "Loosen my hands first...loosen my handcuffs before I talk." DS Gawel said the handcuffs would be loosened when they had finished the search. (This was explained later as a reference to the frisk search.) Almost immediately after the "complaint” about the handcuffs, a police officer asked the accused which handcuff felt tight, to which the accused replied "both of them". There was then a pause while the handcuffs were loosened.

25 Khaled Cheikho then said:

“Let me take my glasses off, I've gotta have lenses, I can't see. I can't see with these glasses.”

26 Detective Gawel said:

“We can fix it up very shortly. Just wait until the handcuffs are sorted out.”

27 The accused's behaviour then took a turn for the worse. Presumably he thought police were talking to one of his family members. He called out angrily:

“Hey, no one can talk to her, don't talk with no slut...you leave her alone, you fuckin' dogs.”

28 (During this conversation, the police were still trying to adjust the handcuffs.)

29 The accused continued his disruptive behaviour. He shouted:

“Hey don't get called by a little mouth that fuckin' bitch, they're all fuckin' enemies.”

30 Detective Gawel asked the accused to restrain himself but to no avail. The following conversation then occurred:

“ KC: Fuck you, you left me...I don't know what the fuck you're doin' in my house, you bastards.

DG: Okay when your handcuffs are changed I'll explain to you.

KC: I don't want to hear nothing, I'm not listening poofter.

DG: ...exactly what is going on.

KC: Fuck you and your John Howard, the fuckin' motherfucker.

M: I've just got one more cuff to do if you just stand still, it's a bit easier for us okay and easier for you okay.

KC: What are you gonna, are you gonna restrict us from hating youse, we hate youse you motherfuckers. Justify your laws you bastards.

DG: Are you comfortable now, Khaled, are you comfortable?

KC: Nuh, they're even tighter.

DG: The police here have assured me that they're looser.

31 In his oral evidence D S Gawel said that he looked at the handcuffs on the accused and concluded that they had been loosened, and that they were not too tight. He did not believe the accused was telling the truth when he made the second complaint about the handcuffs (transcript 2282).

32 Detective Gawel then attempted to explain the search warrant to the accused. The accused's behaviour did not improve to any marked degree during this discussion. For example, D S Gawel administered a further caution and asked whether the accused understood that. The accused responded "use what you want to use, you use it anyway you poofter". D S Gawel then explained that it would be necessary to carry out the forensic procedures before a proper search of the premises could begin. The forensic officers were identified for the video and it was shortly after this, during a lull, that the accused made the statement that is the subject of this first application for exclusion.

33 Sometime later, the handcuffs were changed once again. This time the accused was handcuffed with his hands in front of him rather than behind him. By then it was raining, and the rain increased in heaviness as the morning wore on. Detective Gawel said that he had endeavoured to keep the accused out of the rain by keeping him on the porch where he was largely under cover. The accused however, was not allowed access to the premises while the forensic team were conducting their procedures.

34 At approximately quarter past three, or perhaps a little later, D S McDonald, laboriously and slowly, read to the accused the full details of the premises search warrant. At the conclusion of the reading, D S McDonald said:

“The offences to which this warrant relates are those specified above in the third condition and you actually have a copy of the warrant which dictates your rights as an occupier.”

35 (The reading of the warrant had included a full reading of all the conditions, including the third condition.)

36 The conversation then continued as follows:

“ KC: I've got no more (ind) I've got no copy, no shit.

PMC: There you go. I'm handing you a copy of the warrant. That's your copy. Further to that we also have a warrant in the same conditions to search vehicle registration number Alpha Golf 61 Juliet Echo, being a white Holden Commodore Executive, under the same conditions and under the same authorisation. Do you understand what I've read out to you?

KC: I don't care.

PMC: I'm sorry?

KC: I don't care what youse do.

PMC: Do you understand what (IND).

KC: No.

MMC: I'm providing you with a copy of the warrant in relation to vehicle search as well.

KC: And I can't ring my solicitor?

PMC: That'll be up to the investigating police and we will determine that shortly.

KC: Where's your hypocrisy?

DG: (ind) just (ind) here.

37 Detective Gawel said that he did not recall the last part of this conversation, but agreed that although he was there as part of the search team, he was there “to interview Mr Cheikho”. He agreed Cheikho, on the video, appeared to have asked whether he could contact his solicitor. Detective Gawel indicated that his practice was that when a person is placed under arrest, he or she is conveyed back to a police station and put into custody. Once a person is lodged into custody, he is then allowed to contact support people and legal representatives. Detective Gawel said:

“It was not our purpose at that search warrant to interview him, other than to simply undergo the execution of the search warrant.”

38 Detective Gawel maintained that he did give the accused the right to contact friends or lawyer, but agreed this did not happen until around 7am after the accused had been taken back to the police station. He said, however:

“It was not my intention to interview him at that time, nor was it an appropriate place for those conversations to occur...my recollection of those conversations was simply informing him of the processes that were occurring and to be fair to him.”

39 Detective Gawel insisted that he had not deliberately refrained at the premises from telling the accused he had a right to contact a friend or a lawyer. He said it simply was not appropriate to do so at that point of time, and at that place. Detective Gawel said he specifically refrained from asking any questions in relation to the offences for which the accused was charged. Detective Gawel admitted that he was not familiar with s 23G of the Crimes Act, but he said that s 10C of the State legislation was very similar.

40 Another matter that was put to Detective Gawel in cross-examination was an examination of why it was that he did not allow the accused to be present “when the search took place”. D S Gawel conceded he was not aware of the provisions of s 3P of the Crimes Act 1914 (Cth), but he said:

“I gave consideration to fairness to the accused. The detention after arrest, and the current conditions under which he was situated, being outside with a great deal of rain, and it being unfair for him to remain there, not knowing how long it was going to be before we could actually execute the search warrant.”

41 Detective Gawel said he had to consider the four-hour detention issue, and he also had to consider whether the accused would be charged. He had no real idea when Forensic Services would be back so they could continue the warrant. He did not know how long he would have to remain there with the accused outside. In addition, the accused indicated that he wished to go to the toilet, and wished to pray. The current situation, where he was, was not acceptable to the accused. Weighing all that up together, D S Gawel decided that the accused should be taken away from the premises, given an opportunity to go to the toilet, and to pray if he wished. He would be placed in custody and then given the opportunity to contact friends and/or a lawyer. That done, the task awaiting Detective Gawel would be to conduct an interview with Khaled Cheikho at the police station. The officer said: -

“…the correct situation where he was unacceptable to him. Weighing all of that up, I thought about his concerns, and we went in favour of what was right for him”.

42 The next matter to be dealt with is the situation relating to the accused's wife and child.

43 Detective Senior Constable Sharon Neil provided a statement. This officer indicated that, while forensic police were inside the premises, Khaled Cheikho was being detained by police on the driveway. At this time, investigators spoke with Cheikho, and S C Neil commenced recording the conversations by way of hand-held video recorder. The statement continues:

“Sometime later Detective Senior Constable Bevern took over video recording and I escorted Khaled Cheikho's wife and child on foot to a nearby premises.”

44 (These were premises occupied by Ms Wisudo's mother at Garrong Road, Lakemba).

45 DC Neil was then conveyed back to Unit 3, 63 Taylor Street by Detectives Jones and Hunt. Accompanying the women to the Garrong Street premises was Federal Agent Carolyn Moss. It was she who had first brought Ms Wisudo and her child from the house to the area of the driveway in front of the premises.

46 FA Moss’ statement indicates that Ms Wisudo and her child were escorted to her mother's place at about 4am on that day.

47 In his second statement (18 August 2008) D I McDonald indicates that Ms Wisudo, her child and the accused, were outside the premises awaiting clearance from the Forensic Services Group to enable the search proper to commence. While they were awaiting this clearance, it commenced raining. Apparently, there was limited shelter at the location to provide cover from the rain. Although D I McDonald cannot recall any specific conversation with Ms Wisudo, it was determined at some point that she could attend a friend's premises nearby to shelter her and her son from the weather. The statement adds:

“Given the time of night, assistance was provided by police to escort Ms Wisudo and her son safely to those premises.”

48 And later the statements recites:

“I recall Ms Wisudo was escorted from the premises due to concern for her and her son, due to the time of night, the inclement weather and lack of reasonable shelter and amenities”.

49 So far as I am able to ascertain, the video recording does not appear to capture any conversation between the police and Ms Wisudo relating to the decision to attend her mother's premises. There is a conversation in Arabic in which Ms Wisudo told her husband “she and the child were going with the police”. There is no evidence, or at least no witness has any recollection, as to whether Ms Wisudo was shown a copy of the warrant before she left the vicinity. There was a tape change at about 3.46am. There is a reference to the situation after the tape change. This appears on the video and is captured on the transcript. The transcript records the following conversation:

“ P McC: The time is approximately 3.50am and just for the purpose of the video - we're just going to swap video operators - we just require the services of a female officer to assist in an operational aspect of this warrant. Video is going to be taken over by detective...

DB: Bevern.

M: ...Bevern. Right.

50 The search proper began at about six minutes past five in the morning. The first area searched was the garage area attached to the unit. The independent observer, Acting Inspector Wright, was present during this part of the search. Neither Khaled Cheikho nor his wife were, by this time, present. Khaled Cheikho had been taken away at about 4.50am to Surry Hills Police Station. He was taken there by DS Gawel and other police. The transcript shows at approximately 4.40am, while the police were waiting for the forensic procedures to be finalised, Khaled Cheikho had first complained that he wanted to go to the toilet. He also said he wanted to pray. The police indicated to him that he would not be able to enter the house for these purposes, although they indicated he was free to pray outside if he wished. It was at that point of time that Detective Gawel apparently made the decision to take the accused to the police station. The transcript records on page 16 Detective Gawel saying:

“We're going to take you into town. We can't have you standing out in the rain, so (ind) and you can pray here (ind) [ VOICES ARE DROWNED OUT BY SOUND OF RAIN ].”

51 It appears by 4.54am, the accused had been taken away by Detective Gawel. Forensic Services, however, were continuing with their examination of the property and the police were still awaiting for the “all clear” to commence the search. As I have said, at approximately five or six minutes past five, the “all clear” was given for the search to commence in the garage area.

52 The seizures made at the garage included a number of items, including documents in both English and Arabic. There is no need for me to detail all the documents found. They are itemised in the Property Seizure Exhibit Form as items 1 to 6 inclusive (see Exhibit “A”). A few examples will give the flavour of the first set of seizures. There were, for example, two cassette tapes marked "Basrah - the War on Terror", six pages of handwritten documents titled "The Fundamentals of Islam", documents from Sydney newspapers relating to reports on terrorism, articles written in Arabic with pictures referring to war and conflict outside of Australia, two 90 minute TDK audio tapes and an exercise book with Arabic symbols on it. Finally, mention may be made of a white plastic garbage bag containing numerous documents and books relating to “terrorism” and al-Qaeda.

53 The search of the house began shortly afterwards. The independent officer was present throughout. First there was a video walk through which gave an overall perspective of the unit. The searching officers had changed gloves, and the searching appears to have formally commenced in the house around 6am, or shortly after. D S Neil for example, found her first item at 6.19am. D C Jones made his first seizure at about 6.20am

54 Shortly before these first seizures in the house, and immediately before the overall video perspective of the unit was undertaken, D I McDonald is transcribed as saying:

“...as indicated before, we don't have any of the occupiers present due to the fact that one of them has been under arrest and the, been placed under arrest, and Mrs Cheikho has declined to be present. We have the independent here with us at this time.”

55 I infer from these statements, which were also captured on the video, that Ms Wisudo had been given the opportunity to be present at the search but, for perfectly understandable reasons, had declined to be present. It is proper to infer that she was concerned about her child and preferred to be with her mother in all the circumstances. The accused's mother-in-law, Rabiah Hutchinson, gave evidence on the voir dire. Ms Hutchinson confirmed that her daughter and grandchild were brought to her house in the early hours of 8 November 2005. Ms Hutchinson says this occurred at "2 o'clock in the morning", although the evidence clearly indicates that Ms Hutchinson was wrong by two hours. She lived approximately 20 minutes walk away from the accused's premises.

56 There was no suggestion in the cross-examination of Detective Inspector McDonald, or in the evidence of Ms Hutchinson, to suggest that an opportunity had not been given to Ms Wisudo as the occupier or the occupier’s representative to be present during the search. I infer from the whole of the evidence that such an opportunity was presented to Ms Wisudo, but that she, for perfectly proper reasons, declined to accept the offer. Indeed, it is clear that, at the conclusion of the search, the police treated Ms Wisudo as the occupier of the premises. She was the person who was asked to, and in fact did, sign the property seizure forms. It appears, however, that prior to the accused's removal to Surry Hills Police Station, he had been treated as the occupier because he was the one served with the warrant and the occupier's rights document. The principal warrant had been carefully and laboriously read out to him, word for word. It is open to infer that Ms Wisudo would have seen and heard this procedure, or at least a considerable part of it. The accused had also been given a copy of the vehicle warrant. Detective Inspector McDonald was unable to recall however, whether Ms Wisudo had been served with a copy of the search warrant or an occupier's rights document, and it is possible, I infer, that she may not have been served. As I have said, the search of the unit commenced, in a practical sense, at about 6.20am. The video and the transcript indicate the detail of the procedures that were followed and identify also material that was seized. The full detail of this is once again contained in the Property Seizure Exhibit Form. The items seized from the house are numbered 7 to 42.

57 It seems that there was a computer specialist from the AFP present at the search of the unit. His name was Jarred Murphy. He was introduced on the video tape (see transcript page 30). D I McDonald introduces him as a computer specialist “whose task is to have a look at the computer system in the unit”. During the search a hard drive was located (at 6.32am) on the bottom shelf of a bookcase in a living room extension. The Property Seizure Exhibit Form indicates that this was seized from the computer room by Officer Jones. A second computer hard drive and 33 compact discs were seized at approximately 7.23am from the computer room by Officer Hunt. Fifty-nine compact discs stored in a CD holder were also seized by Officer Neil at 7.26am. There were a further 30 compact discs in various cases seized at the same time. A third hard drive was located by Officer Neil in the children's bedroom at about 7.36am. It appears this was also seized. A fourth computer hard drive was found in the main bedroom by Officer Neil. This was seized at about 7.50am. Weaponry of various kind was found and seized, including a samurai sword and a Colt Double Eagle gas pellet firearm with silencer and other related equipment. A machete was found in the main bedroom. There were a considerable number of other documents but it is unnecessary to detail these for present purposes. A set of keys was located in the lounge room at 8.51am. Three items were seized from the motor vehicle.

58 The search concluded at about 9am. The premises were then secured. The exhibits were handed over to the Exhibits Officer and taken to his vehicle.

59 After the conclusion of the search warrant, the field Exhibit Book was taken by SC Telfer and given to the independent officer Acting Inspector Wright. It appears he examined it, no doubt to make sure that the entries in it had been made correctly. D S McDonald then made contact by phone with Ms Wisudo who directed him to the address in Garrong Street, Lakemba. Mr McDonald, Acting Inspector Wright and S C Telfer then drove to the address in Lakemba where Ms Wisudo had been taken. There is a dispute about what happened at the front door of those premises.

60 According to D S McDonald's statement:

“At this time, A/Inspector Wright had with him the Field Exhibit Book. This was handed to Ms Wisudo who appeared to go through the record of the items seized. Ms Wisudo then signed the Property Seizure Form/Exhibit Form and was given a copy of the forms.”

61 Acting Inspector Peter Wright made a statement on 31 December 2005. He states:

“9. At the conclusion of the search of the premises I ensured that the premises was locked and secured prior to operational police leaving the scene. I then travelled to another premises not far from the site of the search, where I requested to speak with Mrs Cheikho. I was sternly informed that Islamic women do not take their husband's name. I was informed that Mrs Cheikho preferred to be addressed as 'Ms Wisudo'.

10. I then showed Ms Wisudo the entries in the Field Exhibit/Property Seizure Forms numbered A68026-A68029 and explained to her that the items recorded in that document were items of interest seized from her home in compliance with the search warrant. Ms Wisudo read each entry of the document provided and, after having checked the entries quite carefully, signed the bottom of each page of the documents acknowledging receipt of a copy of the property lists. I then countersigned each entry witnessing Ms Wisudo signature.”

62 Regrettably, neither Inspector Wright nor Ms Wisudo were available to give evidence about the dispute that arose concerning these matters. The dispute centred upon the evidence of Rabiah Hutchinson, the mother-in-law of Khaled Cheikho. Ms Hutchinson gave evidence that her daughter had been quite distraught when she came to the house in the early hours of the morning. She said her grandson was “in shock”. Later at about nine o'clock there was "banging on the door". Ms Wisudo said she was asked if Mrs Cheikho was there. She said she remembered very clearly that she told them that there wasn't any such person as Mrs Cheikho as Muslim women do not take their husband's name. Her daughter’s name, she told the police, was Rahmah Wisudo. According to Ms Hutchinson, there were two men at the door. One was an older man with grey hair. The other one (presumably D I McDonald) did not speak. The older man said he had to speak to Ms Wisudo personally. She had covered herself (as had Ms Hutchinson) and came to the door. The transcript of 26 August 08 records Ms Hutchinson saying:

“The older officer proceeded to say that he had come with her keys and he had them, the keys in one hand and some sort of pad in the other, and he said, 'If you want these' and he is jangling the keys, 'you have to sign this'.

Q. What took place after that?

A. When I asked him what it was, he said 'I'm not speaking to you, ma'am, I'm speaking to her.' And he said this was a list of things that were in her house and to enable her to receive the keys back, she had to sign them.

Q Did she say anything or do anything after that?

A. She said, 'Mama, what do I do? What should I do?' Because we'd had no previous experience with the law I told her, 'I don't really know, but if you want your keys, I suggest you sign it.' And without reading it and I remember this quite clearly, because I have very poor eyesight, I can't read without my reading glasses and my daughter has always worn contact lenses, I didn't have my reading glasses and neither did she have her contact lenses.

Q. So did she sign?

63 Ms Hutchinson maintained that neither she nor her daughter really understood what it was that was signed. Ms Hutchinson thought they had written everything down that was in the house. She didn't realise it was things that had been taken away and apparently belonged to her daughter and husband. Ms Hutchinson volunteered:

“The copy we received was illegible. It couldn't be read.”

64 Senior counsel for the Crown cross-examined Ms Hutchinson. He asked her whether she recalled the officer (at the door) saying to her daughter that those items had been seized under a search warrant that was executed on the premises. Ms Hutchinson answered non-responsively:

“We actually never saw any search warrant or were given any copy of a search warrant.”

65 Ms Hutchinson then denied recalling the particular statement being made by the police officer at the door. It was suggested to her that she was, in effect, not telling the truth about the alleged conversation, but she adhered to her evidence. She did not recall her daughter appearing to read the forms she had been asked to sign. She denied that her daughter “appeared to read” the documents before signing them. She agreed, however, that her daughter had asked her what she should do (as to signing the document) in the presence of the two officers standing at the front door.

66 Inspector McDonald was cross-examined about the alleged conversation at the front door. He was recalled to give evidence on 26 August 2008.

67 The relevant cross-examination is reasonably brief. It commences at transcript 2329:

“Q. And you went there with Inspector Wright and Detective Telfer?

A. That's correct, yes.

Q. Detective Telfer had with him the property seizure exhibit form book?

A. I believe Inspector Wright had custody of the book and--

Q. And the three of you went to the premises after you say you made a phone call to Ms Wisudo?

A. That's correct, yes.

Q. And all three of you went into the house?

A. No, I believe only myself and Inspector Wright approached the front door. We didn't actually - I don't recall going into the house, no.

Q. Okay. And what took place then?

A. I believe, or I recall that Inspector Telfer showed Ms Wisudo the property seizure document and went through the list and asked her to sign it.

Q. And did Ms Wisudo appear to read it?

A. I don't recall. I believe she may have.

Q. You said in your statement she handed it - Wright had it with him in his field exhibit book. This was handed to Ms Wisudo, who appeared to go through the record of the items seized?

A. Yeah, that is right, yes.

Q. And then she signed it and was given a copy?

A. That's correct, yes.

Q. Would you agree with me that the book contains different coloured pages representing copies for the occupier and copies to be maintained in the book?

A. That's right, yes.

Q. And do you agree that the one given to Ms Wisudo was green, does that ring a bell?

A. I couldn't recall offhand at this time, no.

Q. To your knowledge Ms Wisudo had exited her own premises some hours before?

A. That's correct, yes.

Q. And do you recall Ms Wisudo being accompanied by another woman when you were at the front door?

A. I believe there was another person there, yes.

Q. And were they all dressed in traditional burkas?

A. I don't recall. I believe Ms Wisudo may have been. I don't know if the other person was.

Q. I want to suggest to you that neither Ms Wisudo or any other woman who appeared to be occupying those premises read the exhibit form that was offered to them?

A. They appeared to go through the document and look through it.

Q. Can I just show you a copy of the exhibit of what is called the property seizure exhibit form in handwriting. (Document shown.) Do you recognise that as the copy of what it was allegedly shown to Ms Wisudo?

A. It appears so.

Q. You yourself have not signed it, although your name appears as case officer?

A. No, I haven't signed that, no.

Q. And there appears to be under the heading of "Occupant", Ms Wisudo has signed it, as has Mr Wright?

A. Yes, that appears so.

Q. On the bottom of every page?

A. Yes, that's right.

Q. Could you describe - was Mr Wright there when Ms Wisudo was given a copy and asked to sign?

A. Yes, he was.

Q. So I just may have misunderstood, was Mr Telfer there?

A. No, I believe Mr Telfer remained with the exhibits at the vehicle.

Q. Did Mr Wright - would you describe him as having grey hair?

A. I couldn't recall.

Q. But both of you were together when Ms Wisudo and the other woman were given the - or one of them was given the exhibit form?

A. That's right, yes.

Q. One of the items seized by the police was the set of keys for the house itself, if you go to item 43?

A. It only indicates a set of keys. I can't say whether they were the keys for the house or not.

Q. Did you have the keys for the house?

A. No, I don't recall, from there.

Q. You see, this was a raid in which you were the team leader?

A. That's right, yes.

Q. And I take it that the occupants were disturbed apparently in their sleep?

A. It would appear so, yes.

Q. Did you make any arrangements as team leader to give the keys back to the remaining occupant Ms Wisudo?

A. I don't recall any arrangements that were made in that regard.

Q. I want to suggest to you that either you or Mr Wright dangled the keys in front of Ms Wisudo and said if she didn't sign the property seizure form she wouldn't get the house keys?

A. That's not correct.

Q. You don't recall any house keys being given?

A. That's what I am saying. I don't believe we had any keys, aside from the keys mentioned here. I don't recall having any keys to the premises.

Q. Did you go into the premises?

A. Which premises?

Q. The premises where you got the form signed?

A. I don't believe I did. I don't recall going in, no.

Q. All this signing and handing over was all done at the front door?

A. I believe so, yes.”

68 Detective Inspector McDonald was unable to recall whether Ms Wisudo had been given the opportunity to come out and check the forms as against the seized material in the motor vehicle where officer Telfer was seated.

69 The submissions made by Mr Waterstreet do not precisely identify the consequences of the resolution of this dispute in the evidence. I must assume that its only significance is to point to alleged inappropriate behaviour by police officers in their conduct following the completion of the search. For that reason, it is probably unnecessary to try to resolve definitively the dispute, as it is not a critical one in the overall evaluation of the present application. In any event, endeavouring to resolve a dispute in the absence of the two principal witnesses is by no means an easy task. I will, however, venture to a number of observations.

70 With all due respect to Ms Hutchinson, I thought her evidence was more than somewhat contrived. She appeared to want to make a number of points critical of the police. They were, first, that the "dangling" of the keys was a ploy to get the documents signed. Why, one might ask, would the police need to engage in a ploy of this kind? The search had been thoroughly and carefully carried out. All the items seized were carefully itemised. It is true that the form was the wrong form, in that it was a New South Wales form rather than a Federal one, but nothing turns on that.

71 Secondly, Ms Hutchinson was keen to introduce into the evidence (although it was ultimately unsuccessful) complaints her daughter had made about the way her husband had been treated by the police. Thirdly, she was keen to paint her daughter and grandchild as severely traumatised by the whole event. Fourthly, she was at pains to emphasise that neither she nor her daughter saw the search warrant, or were given a copy of the search warrant, although this had very little, if anything, to do with the disputed factual situation involved in her evidence. It was a non-responsive answer, in any event, and could not be given any weight. Rather, I thought Ms Hutchison who is clearly a very intelligent woman, was “picking up” on some of the legal points and trying to improve them.

72 Overall, I thought Ms Hutchison presented as a strident supporter of her son-in-law's rights which she believed had been infringed, as had those of her daughter. Loyalty of this kind is, of course, understandable, but it can often lead, as I think it did in this case, to an element of exaggeration. For example, Ms Hutchinson volunteered that the copy document that they had been given was “illegible”. She maintained "it couldn't be read". I took this to be a reference to Ms Hutchinson's ability to read the document when she later attempted to do so, wearing her glasses. By any test, however, the property seizure form in evidence is very carefully written out and is, by any standards, easy to read. On the assumption that Ms Hutchinson's “volunteered” comment about the illegibility of the document referred to the inability of both her daughter and herself to read it once the police had gone, it is simply impossible to accept. If she were saying that it was illegible and couldn't be read for that reason immediately it was handed over, this is quite at odds with her evidence that she didn't have her glasses on, and her daughter did not have her contact lenses inserted, at the time the document was handed over.

73 I have not had the advantage of seeing or hearing Inspector Wright give evidence. His statement, however, was in evidence by consent. It paints a very different picture concerning the events at Ms Hutchinson’s home. But I would find it difficult to accept that the independent officer, whose task it was to ensure the propriety of the search, would have acted in the way described by Ms Hutchinson. But, be that as it may, I simply regard her evidence as quite exaggerated, lacking in credibility and, overall, unreliable. These observations are, of course, limited to the very narrow issue involving Ms Hutchinson's evidence in relation to the present voir dire application. They are not meant to be generally critical or dismissive of her, as indeed they could not be, given the limited nature of the dispute. I do not accept, however, that there was any inappropriate behaviour in relation to Ms Wisudo’s signing of the forms at 9am on 8 November 2005.

74 It is now necessary to turn to the events at Surry Hills Police Station where the accused had been taken for his interview.

75 Khaled Cheikho arrived at the police station at about 5.18am. He was entered into custody by Detective Malcolm. There was a delay, however, before the start of the interview. This was due to the number of persons in custody and the limited number of interview rooms. Further, the police were waiting for the arrival of forensic officers to attend and undertake forensic procedures in relation to Khaled Cheikho. To enable compliance with the time constraints of the custody procedures, Detective Malcolm then applied for an extension warrant for Khaled Cheikho's detention. As a result, an extension was granted by Magistrate Albu for a further two hours.

76 Shortly after 9 o'clock that day, Detectives Gawel and Malcolm took Khaled Cheikho to an interview room. Earlier, the accused had been offered an opportunity to speak to Magistrate Albu about the proposed extension. When the phone was handed to him, he said to the magistrate "I don't want to talk to you".

77 An interview then took place, following which an independent officer queried the accused as to the propriety of the police conduct during the interview. The full text of the interview is transcribed and is part of the attachment to Detective Malcolm's statement (part of Exhibit “A”). Both a video tape and transcription of the interview are available. A caution was administered by Detective Malcolm. It may be convenient if I set out the text of a number of the questions and summary:

“Q17. Before I ask you any questions, I am obliged to tell you I intend to ask you further questions in relation to this matter, but before I do, I must caution you that you do not have to say or do anything unless you wish to do so, as anything you do say or do will be recorded and may be later used in evidence. Do you clearly understand the caution I have just given you?

A. Yeah.

...

Q20. All right. I must inform you of the following rights. You may communicate with or attempt to communicate with a friend or relative to inform that person of your whereabouts. Do you understand that?

A. Yeah.

Q21. And since your time in custody, have you contacted anyone?

A. Yeah.

Q22. From your family?

A. Yeah.

Q23. And informed them where you are?

A. Yeah.

Q24. Do you wish to communicate with a friend or relative?

A. No. Later. Or you can't any more?

Q25. You may communicate with or attempt to communicate with a legal practitioner of your choice and arrange or attempt to arrange for a legal practitioner of your choice to be present during the questioning. Do you understand?

A. Yeah.

Q26. Do you wish to communicate with a legal practitioner?

A. No.

Q27. Do you agree, Mr Cheikho, that you have already spoken to a legal practitioner since you have been placed in police custody?

A. Yes.

Q28. Are you an Australian citizen?

A. No more comments."

78 From this point on, the accused, as he was entitled to do, refused to comment, participate or answer any questions.

79 Other evidence placed before me confirmed that Khaled Cheikho had been allowed to make a number of telephone calls, and spoke to his wife and his mother. He also spoke to his legal representative, Adam Houda.

80 About 10.37am on 8 November 2005 Khaled Cheikho was escorted from the interview room to another room where a forensic procedure was conducted. A short time later the accused was returned to the Charge Room of the Sydney Police Centre where he was charged under s 101.6 of the Commonwealth Criminal Code Act and then returned to custody.

81 Two days later, in the afternoon of 10 November 2005, Detective Gawel had a conversation with Federal Agent Morley. This conversation related to extension warrants for the examination of the computers seized during the search warrants on 8 November 2005. About 3.20pm that day as a result of that conversation, Detective Gawel attended the Downing Centre Local Court together with a number of federal agents. There he made an application before Mr Peebles, an authorised justice, for an "extension of time to examine or process a thing" pursuant to s 3K(3B) of the Crimes Act 1914 for the computers that were in the possession of the New South Wales Police Force. These included four computer hard drives (Khaled Cheikho), a Toshiba laptop computer (Baladjam), a laptop and two hard drives (Elomar), a computer and tower (Jamal), two hard drives (Sharrouf) and a hard drive tower (Touma). These "applications" were granted by Mr Peebles at approximately 3.30pm on 10 November 2005. In each case the authority purported to extend time to examine or process the computers in the schedule for a period of 72 hours. So far as Khaled Cheikho's four hard drives were concerned, the application covered each of those.

82 Federal Agent Byron Morley provided a statement. He confirmed that it was he who made an appointment with the Downing Centre Local Court for the purposes of making an application for an extension pursuant to s 3K(3B) of the Crimes Act 1914. He was unable to recall the time he made this appointment. The statement continues:

“5. About 12.15 on 10 November 2005, I telephoned Mr Adam Houda. I then stated to Mr Houda words to the effect that the AFP would be attending the Downing Centre Local Court to make an application to obtain an extension of time for the examination of all computers seized during the search warrants conducted on 8 November 2005. In reply, Mr Houda stated words to the effect that he had not received sufficient notice of the application to enable him to attend and consequently he would not be attending.”

83 Mr Waterstreet cross-examined Federal Agent Morley about the events of 10 November 2005. As might be expected, Federal Agent Morley's recollection was hazy as to the details of the day. He was unable to recall, for example, if he personally spoke to Mr Peebles. He did not tell Mr Houda, however, the identity of the magistrate at the Local Court who would be dealing with the application and he did not tell him the time when the application would be made. He agreed he had not served on Mr Houda any application in written form as to the extension of the time. He agreed that he had not been a constable assisting in the search warrant process involving Khaled Cheikho. He believed there was an accompanying affidavit with the application for extensions of time, although he did not believe that he had mentioned the affidavit to Mr Houda when he spoke to him on 10 November 2005. He did not serve either the application or the affidavit on Mr Houda, and he was unaware whether anyone else in the AFP had done so.

84 Federal Agent Morley said that it was his understanding that he sought to extend the time for examination of the removed hard drives in order to ascertain whether there was evidential material on those hard drives. He understood that they were in the possession of either the AFP or the New South Wales Police, but he was not sure exactly where they were. His sole duty really was simply to make the application and to ring Mr Houda. He was aware that, in order to obtain an extension of time, he was under an obligation to inform the magistrate that further time was needed and the reasons why. Further, he understood that it was his task to inform the magistrate that he had told either the person whose houses were searched, the occupier, or his representative that an application was to be made. He could not, however, recall any conversations he had with Mr Peebles and accordingly was unable to recall whether he had told the magistrate that Mr Houda had said that the notification gave him “too little time”.

85 Exhibit 3 on the voir dire was the affidavit of Detective Sergeant Gawel. This was a copy of the affidavit he swore on 10 November 2005 supporting the application for an extension of time in which to examine the four computer hard drives. He described himself as acting "on behalf of the executing officer under a search warrant issued under s 3E of the Crimes Act 1914 in respect of the premises at Unit C/63 Taylor Street, Lakemba, New South Wales." He said in paragraph 3:

“The things described above (the four hard drives) were moved from the premises specified above on 8 November 2005 pursuant to the power under s 3K(2) of the Crimes Act 1914 to move a thing to another place for examination or processing in order to determine whether it may be seized under a warrant.”

86 The affidavit continued to give a number of grounds on which it was said to be reasonable that an extension of time should be granted. The reasons essentially were the time necessary to examine the data on a modern computer hard drive, and the fact that some of the data “may need to be translated from the Arabic language into the English language”.

87 Exhibit 2 was a written form of application for an extension of time in the name of Federal Agent Morley. It did not relate to the subject hard drives, but was tendered as an example of the type and form of application involved.

88 Detective Gawel was examined in relation to the application for extension. It appears that he had made a number of affidavits for presentation before Mr Peebles. These related to all of the computers, hard drives and computer towers in the possession of the police as a consequence of the search. He said that he swore them on behalf of New South Wales Police for the computers that were in New South Wales Police possession at the time. Although he had attended the search warrant process at Khaled Cheikho's premises, his role really had been in relation to the arrest and subsequent interviewing of Khaled Cheikho after he had been taken into custody.

89 Inspector Paul McDonald was also cross-examined in relation to the extension of time application. The relevant passages appear at transcript 2309, lines 3 to 55:

“Q. And the product of the search was set out in the form that exhibit officer Telfer hand wrote?

A. That's right, yes.

Q. And that was all - all that product was taken to Bankstown, was it not?

A. Yes, it was.

Q. And it remained written into the exhibit book at Bankstown?

A. I believe so, yes.

Q. Two days later you became aware that some of the removed or seized product needed to be inspected to see if it was evidential material?

A. No, I had limited involvement in the investigation following the execution of the warrant.

Q. So you--

A. As I recall.

Q. --so you didn't authorise anyone to make an application for extension, did you?

A. Not that I recall, no.

Q. I suggest to you that the only person who can make an application for an extension is the executing officer, namely you. Were you aware of that?

A. No, I wasn't.

Q. Did you become aware even in recent times that someone else had made an application for extension to inspect product removed from Mr Cheikho's premises?

A. No.

Q. You don't know one way or the other?

A. No.

Q. Are you aware from the documents served on Mr Cheikho that the rights of an occupier are set out on that piece of paper replicating the Crimes Act section 3H, 3K, 3L and 3L(a). They are all set out there?

A. Yes.

Q. As far as you are concerned as at that night, everything that was done by officers executing the warrant for which you were team leader was done pursuant to the Crimes Act, pursuant to these sections?

A. I believe so, yes.

Q. And if someone made an application for extension, you knew nothing about it?

90 And then later at page 2310, lines 45 to 2311 line 47:

“Q. Now on 3K, that enables equipment to be used to examine or process things, according to the heading. Do you see that?

A. Yes.

Q. And 3L allows electronic equipment to be used at the premises?

A. Yeah.

Q. It may include electronic equipment already at the premises belonging perhaps to the occupier?

A. I'm not aware whether that's covered or not.

Q. Can I ask you, did you bring any electronic equipment with you in order to look at any data that was kept in the premises?

A. I don't recall bringing any, no.

Q. You agree with me that a number of items, according to that exhibit list, were seized that included hard drives?

A. I would have to check, but quite possibly, yes.

Q. I don't think it's a matter of controversy. I just ask you to accept that the property list shows at least four computers/hard drives--

A. If it's recorded on the list.

Q. --removed. And a number of CDs?

A. Yes.

Q. You would have seen that after this list was completed?

A. I'm sorry?

Q. You would have seen this list after it was completed?

A. During and after.

Q. And you would see that as it was being compiled and you are aware that those items had been listed and then removed to Bankstown?

A. That's right, yes.

Q. And they included the four, if the list reveals four computer hard drives, you'd accept that?

A. Yes.

Q. Now I take it as your understanding none of the computer hard drives were looked at at the premises?

A. I don't recall them being looked at there, no.

Q. So while they were at Bankstown, do I understand that you wiped your hands of it, as it were, once they were secured and written into the exhibit book at Bankstown?

A. Yes.

Q. So you did not tell Mr Cheikho or any representative of him that they were at Bankstown?

A. If I can refer to my statement. I don't recall if I informed Miss Wisudo that the items were going to be taken to Bankstown.”

Q. And finally, there is an extensive line of questioning between transcript 2312 line 1 to 2315 line 4:

“A. I don't believe so, no.

Q. And so she was not informed where the product was taken, as far as you are aware?

A. Well, I can't recall if she was or wasn't.

Q. And you never took any further step to inform Mr Cheikho or anyone on his behalf where the product was?

A. I didn't, no.

Q. You were aware that at least a hard drive was available to be kept for only 72 hours in order to enable an inspection?

A. Referring to this document, yes.

Q. 3A?

A. Yeah.

Q. Insofar as you were the executing officer, you accept that it was your duty under 3, subs (3), 'The executing officer must, if it is practical to do so, inform the occupier of the place and time at which the examination and processing will be carried out'. Do you see, that 3A(a)?

A. Yes.

Q. But you didn't do it?

A. No.

Q. And you see 3B over the page, 'The executing officer', that's you, 'may apply to an issuing officer for an extension', but I think you have already dealt with that. You didn't do that?

A. No, I didn't.

Q. And again 3C, 'The executing officer must give notice to the occupier to be heard'. Do you understand that? You didn't do that?

A. No.

Q. And I just take you over the page. I ask you to assume that someone made an application for an extension?

A. I'm unaware if that was--

Q. I just ask you to assume that. And you agree that paragraph, subparagraph 9 of section 3L suggests that: 'The provisions of the division relating to the issue of a warrant apply with such modifications as are necessary to the issuing of an extension', do you see that?

A. Yes.

Q. And I take it one follows the other, that if you weren't aware of the extension and the time and place where that inspection pursuant to the extension took place, you didn't tell the occupier, Mr Cheikho or anyone on his behalf, when it was inspected?

A. No, I didn't.

Q. Or where it was?

A. No.

Q. I show you a document purporting to be an affidavit by Mr Gawel. He apparently made an application. He said he made it on your behalf. You didn't instruct him to do it? Just have a look. (Document shown.)

A. Yeah.

WATERSTREET

Q. You see, it says he was constable assisting, and on behalf of the executing officer he has to apply for an extension?

A. Yep.

Q. He appears to have done that of his own volition?

A. I don't recall speaking to Detective Gawel in relation to this, no.

WATERSTREET: I don't know if that was tendered.

BELLEW: It wasn't.

EXHIBIT #3 affidavit IN support of application for extension of time TENDERED, ADMITTED WITHOUT OBJECTION on the application

WATERSTREET

Q. In addition to the four hard drives/computers seized, there were a number of VHSs and CDs seized on the exhibit list?

A. Yes, I believe so.

Q Did you turn your mind to whether those CDs or VHSs themselves had to be inspected to see whether they themselves had any evidential material on them?

I don't recall anything along those lines, no.

Q. I understand that you, as far as the officer in charge was concerned using the New South Wales property seizure records, that what you really did was not turn your mind to the Federal Act s 3K and 3L but instructed your officers to seize material in the way that New South Wales officers seize it?

A. I am unsure of what you actually mean.

Q. You see, you accept that hard drives could be taken away if they haven't been inspected on the premises for the purpose of inspecting?

A. Under the auspices of the warrant, yes.

Q. And under the auspices of the warrants, they, in order to be retained by police, they needed to be inspected to see if they had any evidential material on them?

A. I believe so, yes.

Q. Do I understand that you, as the warrant holder, understood that your officers were acting pursuant to the procedures under 3K and 3L?

A. Yes.

Q. Did you tell them that not only hard drives and computers needed to be removed for inspection but CDs or VHSs needed to be inspected?

A. I don't recall telling them that, no.

Q. Did you turn your mind to it?

The "Statement" made by Khaled Cheikho

91 Mr Waterstreet had labelled the statement made by his client shortly after his arrest as “a rant”. I prefer to describe it simply as a statement made by the accused

92 The first point argued was that the statement is not relevant to any fact in issue in the trial. Section 55 of the Evidence Act contains a broadly expressed definition of "relevance":

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

93 One of the cardinal provisions in the Evidence Act 1995 is s 56. In Odgers Uniform Evidence Law 5th Edition at page 114 it is described as “the key provision regarding the admissibility of evidence” in Chapter 3. The section provides: -

“56(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceedings.

(2) Evidence that is not relevant in the proceeding is not admissible.”

94 As is recognised and stated by the High Court in Smith v The Queen [2001] 206 CLR 650 at 653, the first question to be asked when an issue of the present kind arises is whether the evidence is relevant. Although questions of relevance may raise “nice questions of judgment”, no discretion falls to be exercised. Evidence is either relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. The simple fact is that irrelevant evidence may not be received. These propositions are fundamental to the law of evidence and well settled.

95 In determining relevance in a criminal trial, it is important, and indeed fundamental to identify the ultimate issues. These will be ordinarily expressed in terms of the elements of the offence with which the accused stands charged in the light of the defence, if known. Section 55 of the Evidence Act, as I have said, states that evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. Behind these ultimate issues there will often be many issues about facts relevant to facts in issue (Smith at 654; Papakosmos v The Queen (1999) 196 CLR 297 at 307; 312 and 321-322.

96 For present purposes, the facts in issue have been identified by the Crown in the following way: The Crown must prove beyond reasonable doubt that the accused entered into the agreement alleged by the Crown with one or more other persons (physical element); that the accused did so intentionally (fault element); and that the accused, and at least one other party to the agreement, must have intended that an offence would be committed pursuant to the agreement (the intention required by s 11.5(b) of the Criminal Code Act 1995). Further, the accused, or at least one other party to the agreement, must have committed an overt act pursuant to the agreement. (Section 11.5(c) of Criminal Code Act 1995).

97 The material sought to be adduced by the Crown is, in my view, material which, if it were accepted, could rationally affect the assessment of the probability of the existence of the fault elements and the statutory intention I have identified. Section 55 of the Evidence Act is very broadly stated. It is plainly designed to capture as relevant evidence that, logically and reasonably, has the capacity to bear upon the assessment that the jury, properly instructed, will have to make in the light of the issues at trial. At the outset, it may be said that this capacity plainly appears to exist, even by way of first impression. This is so when one examines the nature of the statement and the nature of the Crown case. I have in earlier decisions set out the broad nature of the Crown case. (See R v Baladjam [No 7] at page 2). As I say, even a preliminary reading of the general nature of the Crown’s case would suggest that Khaled Cheikho’s statement is evidence that could rationally effect the assessment of the probability of the existence of the physical and fault elements I have identified.

98 From the analysis above, it will be seen that the Crown must prove beyond reasonable doubt that Khaled Cheikho intentionally had entered into the agreement alleged by the Crown. Secondly, Khaled Cheikho and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement. Thirdly, the agreement must be of the kind asserted by the Crown in the indictment, that is an agreement to do acts in preparation for a terrorist act or acts. "A terrorist act" is defined in s 100.1 of the Criminal Code Act. It comprehends an action or threat of action made with the intention of advancing a political, religious or ideological cause. It must also be an action or threat made with the intention of coercing the government of the Commonwealth, State, territory, et cetera, or made with the intention of intimidating the public or a section of the public. If the agreement entered into by Khaled Cheikho does not relate to acts or threats of that kind, then it is not an agreement to do acts in preparation for a terrorist act or acts. Consequently, the Crown must address not only the actual intentions of Khaled Cheikho in relation to his actions, but also whether the acts contemplated as the end point of the alleged agreement have the characteristics represented by each of the intentions referred to in s 100.1 of the Criminal Code Act 1995.

99 All this is a complicated and, no doubt, a rather long-winded way of showing that the statement made by Khaled Cheikho on 8 November 2005 is plainly relevant and therefore admissible under s 56 of the Evidence Act.

100 Mr Lange's written submissions valiantly sought to whitewash the statement so as to rob it of its natural obvious meaning. Of course, its meaning, whether it constitutes an admission, and whether it carries weight and the like is ultimately a question for the jury. The statement, however, is clearly capable of being read as a number of propositions each of which give considerable insight into the state of mind of the accused relevant to the essential ingredients of the charge against him.

101 First, the statement, if accepted, postulates that the speaker has little respect for the Prime Minister of Australia, and hence the Australian government and its laws. Secondly, it postulates that, despite his arrest in the early hours of the morning, the speaker is not put in fear by the lawful invasion of his home because of the protection of his deity, “the destroyer of infidels”. Thirdly, it is capable of being read as a description of the Islamic God as the annihilator of tyrants and infidels, including the Australian government and its representatives. Fourthly, it postulates a hatred and detestation of Australian democracy and the system of government that underlines Australia ("Who do you worship, Howard...your democracy full of hypocrisy?") Fifthly, it postulates that some form of Islamic law will ultimately prevail in Australia ("Islam is going to rule this land"). The language is redolent of the medieval crusades, and hearkens back to the battle in ancient times between Christianity and Islam. Sixthly, it postulates that some version of Islamic law promises that the Muslims will eventually rule in Australia, and that the “infidels” will be put down.

249 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.”

250 There are several earlier first instance judgments in the Common Law Division of the Supreme Court that I have also found 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”.

251 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.”

252 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 in that trial to hold that the 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 alleged impropriety was said to have been a misstatement in the affidavit in support of the warrant.

253 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”.

254 To these two authorities I would also add the reference to the 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.

255 I shall first consider the relevant matters dealt with under the statute in connection with the hard drive issue.

256 The first matter to be considered relates to the argument advanced on behalf of the Crown that the evidence seized from the hard drives was not “obtained in contravention of an Australian law”, or “in consequence of a contravention of an Australian law”. The nub of the argument advanced on behalf of the Crown was that the hard drives were taken away in conformity with s 3K(2). This proposition is plainly correct. For this reason, the Crown argued, the evidence was not “obtained” as a consequence of an illegality, even though a later illegality my have occurred. I am unable to accept this argument. As the decision of the Full Court of the Federal Court in Hart’s case made clear, the removal of material under s 3K(2) is not itself a seizure under the warrant. That can only happen later after the examination or processing has taken place. In the present matter, the evidential material was “seized” on 11 November 2005. Mr Waterstreet and Mr Lange’s submissions are correct, I consider, in relation to their observations concerning the Chief Justice’s remarks in R v Haddad & Treglia [2000] 116 A Crim R 312 at (73 – 75). Section 3K (and its various components) clearly form part of an integrated scheme for controlling the situation where items are to be taken away for subsequent testing so that a decision can be made regarding seizure. Indeed, s 3K is part of a larger scheme, including s 3(L), that is reflected in the overall design and purpose of the Cyberspace Act 2001. The phrase “obtained in contravention” is not a term of art, as the Chief Justice observed.

257 In any event, as I have said, the factual situation is that the evidential material was not seized until after the examination had been completed on 11 November 2005. The breaches alleged under this heading all occurred prior to the seizure, not after it as the Crown had contended.

258 I turn now to consider the various matters that are required to be taken into account under s 138(3). The first of these is the probative value of the evidence. In my opinion, the evidence has a very high level of probative value for the Crown case. The accused’s hard drives contained extremist material, which is capable of going directly to the accused’s state of mind or intention. Secondly, the evidence will be highly important to enable the Crown to rebuff the defence case that I anticipate will be raised. This will be the suggestion that the accused’s actions, and his association with the other alleged conspirators, were entirely of an innocent nature and not “extremist” at all. Thirdly, the probative value of this evidence will be especially powerful in relation to the “commonalities” analysis between the nine accused’s holdings of material of a common nature. This will be strong evidence in the Crown case to suggest the very existence of the combination alleged by the Crown. It is directly relevant, and importantly so, to the existence, nature and scope of the alleged conspiracy.

259 As to the nature of the charge, it is of the highest seriousness. In Dalley and in Camilleri, the Court of Criminal Appeal has emphasised the importance of this consideration. (Mr Lange’s submissions suggested that the views of Simpson J in R v Dalley ought to be afforded considerable weight. This submission ignores the fact that her Honour’s decision, although informative and thorough as always, was a minority one).

260 The next matter to consider is the nature of the contraventions. It was not argued that they were deliberate. Nevertheless, substantial criticism was levelled at the police officers concerned. This is not altogether an unfair comment. The police, including New South Wales officers, should have been aware of the procedural strictures of the provisions of the Commonwealth Crimes Act. They were not so aware and this is hardly to their credit. On the other hand, as I have said in this decision and elsewhere, the operation was a massive one, and it is no surprise, although it is regrettable, that there was not a higher level of tuition and training of New South Wales Police Officers. The problems reflected by the breaches were a consequence of the nature of the operation, a lack of understanding, inadvertence and defective administrative control in a situation of urgency.

261 I do bear in mind the Crown’s argument that the obligation to give notice in relation to the proposed examination of the removed material is required only “if it is practicable to do so”. I cannot accept, however, as I have said earlier, that there would have been any practical difficulty in informing the accused or, for that matter, Mr Houda of the proposed examination on 11 November 2005. If Mr Houda did not wish to attend, that would have been entirely a matter for him. But the simple fact is that he was not given the opportunity and the defendant himself was not notified of the intended process. I think it was more likely that notice was not given through a lack of understanding and inadvertence, rather than as a result of any decision that it would be impracticable to give notice.

262 Whichever way the matter is examined, it cannot be said, I repeat, that the failure to give notice was either deliberate or reckless. I do not think that there was any attempt by the police to deny the accused his rights in this regard. Importantly, there has been no suggestion in the submissions that the integrity of the evidence was affected in any way by the failure of the police to give notice, or arising from the fact that there was no representative of the accused present when the examination took place. If there are to be any technical assaults on the probity of the evidence, the material is in the possession of the accused, and an expert has been retained to examine it.

263 I conclude, as I have said, that the contravention was not in any way deliberate or reckless. I would not classify the breaches as merely technical, but I do not think that they were so serious as to warrant the important evidence being excluded on the trial of this very serious offence.

264 Finally, I would conclude that there is nothing in the other sub-sections of s 138(3) that requires any specific mention. It is true that the evidence could have been obtained without contravention of the laws, had the police been properly tutored in the intricacies of the relatively new legislation. I doubt whether any proceedings have been or will be likely to be taken in relation to the contravention. Perhaps this decision will serve as a useful reminder to the police, both State and Federal, that there needs to be tuition at a high level so that police officers understand the intricacies of this rather complex legislation and, for the future, lift their game accordingly.

265 In my view, having considered all of the relevant matters, it is clear to me that the desirability of admitting the evidence plainly outweighs the undesirability of admitting it, notwithstanding the way in which it was obtained.

266 In his written submission , Mr Lange made a final plea placing emphasis on the remarks of Gummow J in New South Wales v Corbett [2007] 230 CLR 606, 612 at (22). Gummow J had emphasised that one reason for a strict construction of the rules relating to a search warrant was “the beneficial control of the agents of the State because of their awareness that they would be held to conformity with strict rules whenever they conduct a search”. This is a fair point for counsel to make, but it needs to be borne in mind that the exercise under s 138 requires an accommodation between two conflicting principles that are strongly pitted against each other. On the one hand, there is the need to ensure that privacy and ownership are not unfairly invaded. On the other hand, there is recognition that where evidence is available, particularly in relation to a very serious offence, it should be used to prosecute those charged with such an offence. The evaluation of which of these principles is to prevail in any given situation is often difficult. The statutory test under s 138 places the matters in the balance, recognising the type of point emphasised by Gummow J in New South Wales v Corbett. In my view, however, the balance in the present matter, for the reasons I have given, ought plainly to be tilted in favour of admitting the evidence.

267 I take the same ultimate view in relation to the failures arising under ss 3K(3)(B) and (3)(C). I would regard the breaches in relation to these sections as generally more of a technical nature. While it is true that the executing officer is required to form the necessary belief on the reasonable grounds referred to in the section, and while it is he who must apply for the extension and give notice of it, it is very clear that a police operation has to be a coordinated one when it is on such a massive scale as was the present one. A police officer, in the position, for example, of D I McDonald, had spent many hours before the commencement of the search getting ready for it. He was required to be on duty for many hours during the search. There would have been other police officers attending a multitude of premises that had to be searched on that evening, all of whom would have found themselves in the same unenviable position. The night was a long one for all concerned, including no doubt the accused and Mr Houda. The coordinating presence of which I have made mention arrived at the necessary decisions to make application for extensions of time where those were necessary. D S Gawel was the one whose task it was, in the ultimate, to make the applications. As I have said, the failure to insist that D I McDonald make these applications was a technical matter and not one that warrants any substantial criticism.

268 The position with Federal Agent Morley is perhaps, to a degree, different. I do not think that Mr Morley adequately dealt with the situation he was confronted with when he spoke to Adam Houda. Even though Mr Houda was dismissive of attending the application, Morley should have insisted on giving him better details than he did about the proposal. I accept, however, that Federal Agent Morley has little recollection of the conversation, beyond the details contained in his diary note. Mr Houda was not called but I rather imagine he would have little recollection of the conversation either. Notice was given to Mr Houda that an application would be made for an extension but it does not seem that he was told when or where the application was to be dealt with. These details, it must be said, did not appear to be of any particular import as he had clearly made up his mind that he would not attend in any event. There was, notwithstanding, a failure to comply satisfactorily with the sub-section. It was no mere technicality, but I do not think it was a failure of any great substance. I accept that the contravention of the section was not deliberate or reckless. It was not motivated by any plan to take an unfair advantage of Mr Houda or his client.

269 In all other respect, I would make the same findings about the probative value of the evidence, the importance of the evidence and the nature of the relevant offence that I referred to in dealings with the earlier breaches. I am satisfied, in terms of s 138, that the evidence should be admitted. The desirability of it being admitted outweighs, to my mind, the undesirability of admitting it, flowing from the nature of the breach involved.

270 I move next to deal with those alleged breaches, which I have rejected. Here, I should make it clear I am only dealing with those where the suggested breach may arise if I am wrong in my interpretation of the relevant sections. That is why I have confined myself to the alleged breaches said to arise under ss 3H and 3P of the Crimes Act 1914.

271 I think it would be merely repetitious if I were to repeat some of my earlier observations about the alleged failure to provide Ms Wisudo with a copy of the search warrant. If she were entitled to have a copy of the warrant, the failure to do so simply arose out of inadvertence and of course, from a lack of knowledge of the requirements of the legislation. As I have said earlier, the legislation is by no means clear. Of course, D S Gawel was unaware of the provisions of the legislation and D I McDonald was, it appears, none too familiar with its detail. Nevertheless, any failure was, as I have stated, really based on both a lack of understanding and inadvertence. It was certainly not deliberate, and I do not regard it as reckless.

272 Some of the evidence seized at Khaled Cheiko’s home included the following:

(i) A book entitled “The Layman’s Guide to a Electronic Eavesdropping” by Thom Larsen

(ii) Numerous sources of information in relation to electronics and the setting up of electric circuits using batteries

(iii) The keys to Musso motor vehicle ATN.4ON. (This was an abandoned vehicle, registered in the name of another, but in which there were items associating with camping and which implicated a number of the accused)

(iv) Electronic circuit boards wrapped in plastic

(v) Receipts from Harrison’s Timber & Hardware for the purchase of two large-scale storage containers. (These items have never been recovered by the police)

(vi) Military instructions for Mujahadeen in Iraq, and introduction to military education, material, which dealt with different stages in military mobilization and operational techniques.

(vii) Training manuals for AK47 weapons

(viii) One Samurai sword

(x) One gas pellet firearm with magazines/silencer

(xi) One machete

(xii) One Colt cap gun

(xiii) A mobile phone connected in a false name

(xiv) There were also the hard drives, the DVD’s and CD- Roms

273 These items, in one sense, have differing degrees of probative value. In a circumstantial case such as the present, it is not useful to separate out individual items and to discuss the probative value of each item. Overall, it can be seen that the probative value of the material supports fully the Crown’s circumstantial case. I would assess the probative value of the material as quite high. Secondly, it is material that plainly is important in the overall Crown case. Although I have found that there was no breach in each instance, if I be wrong in my interpretations of the section, the breach was not of a serious kind. It was not deliberate and it was not reckless.

274 The same comments may be made about the alleged failure to allow the accused and Ms Wisudo to be present during the search. They were both present outside the house while the forensic procedures were set up. Khaled Cheikho was removed for reasons legitimate to his arrest and detention. Ms Wisudo was given the opportunity to be present during the actual search but declined to accept the invitation. Neither occupant was present at the time the search proper commenced. Ms Wisudo was later treated as the occupier and given the opportunity to scrutinise the list of items seized. The searching of the house was properly videotaped.

275 The desirability of admitting the evidence I have identified, together with the evidential material later seized on the hard drives, clearly outweighs the undesirability of admitting the evidence based on the breaches alleged under ss 3H and 3P of the Crimes Act 1914.

276 I dismiss the Notice of Motion dated 4 July 2008.

**********

CITATION:	Regina (C'Wealth) v Baladjam & Ors [No 48] [2008] NSWSC 1467
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:	Order that the Notice of Motion dated 4 July 2008 be dismissed.
CATCHWORDS:	CRIMINAL LAW - Application to exclude admissions made by accused on the basis of oppressive police conduct - Proper construction of s 84 Evidence Act 2005. - CRIMINAL LAW - Application to exclude from trial items removed during execution of a search warrant - Suggested breaches of ss 3K(3)(a) and (b) of Crimes Act 1914 (Cth) - Failure to notify the occupier of the premises from which items have been removed of the place and time at which the subsequent examination will be carried out - Failure to allow the occupier or his representative to be present during the subsequent examination - Proper construction of section. - CRIMINAL LAW - Breaches of ss 3K(3B) and (3C) - Failure to make application for extension of time in the name of the executing officer - Failure by executing officer to give notice of the extension application to the occupier - Failure to give adequate notice to occupier's solicitor - Proper construction of ss 3K(3B) and (3C) of Crimes Act 1914 (Cth). - CRIMINAL LAW - Alleged failure to give a copy of search warrant to a person in the position of alternate occupier - The requirements of s 3H of the Crimes Act 1914 (Cth) - Proper construction of section. - CRIMINAL LAW - Alleged breach of 3P of Crimes Act 1914 (Cth) - Failure to allow occupier or alternate occupier to be present during the search - Proper construction of section in circumstances where occupier has been arrested, detained and taken away from the premises. - CRIMINAL LAW - Proper construction of s 23G of the Crimes Act 1914 (Cth) - Failure to allow an arrested person to communicate with friend, relative and legal practitioner - Whether alleged failure capable of amounting to oppressive conduct - Whether any breaches of the accused's rights under the Crimes Act 1914 (Cth) had any bearing on his making the statement sought to be excluded. - CRIMINAL LAW - Applicability of ss 135 and 137 and 90 of Evidence Act 1995 - Whether statements should be excluded as being unfairly prejudicial or unfair to the accused. - CRIMINAL LAW - S 138 Evidence Act 1995 - Ambit of discretionary considerations and matters relevant to decision as to whether evidence should be excluded where breach has been established.
LEGISLATION CITED:	Criminal Code Act 1995 (Cth) Crimes Act 1914 (Cth) ss 3 H, 3K, 3P, 23D, 23F and 23 G Cyberspace Act 2001 Evidence Act 1995 ss 84, 90, 135, 137 and 138
CASES CITED:	Commissioner of Australian Federal Police v Oke [2007] 159 FCR 441, 449 at (3) DPP v Coe [2003] NSWSC 1 May 2003 Egglishaw v Australian Crime Commission [2006] FCA 819 EM v R [2007] 239 ALR 204; [2007] ACS 46 at 109 per Gummow and Hayne JJ Hart v Commissioner Australian Federal Police [2002] FCAFC 392 Harts Australia Limited & Ors v Commissioner Australian Federal Police [2002] 117 FCR 358 at (24) per Drummond J Higgins v Regina [2007] NSWCCA 56 Markovina v The Queen (1996) 93 A Crim R 149 at 172 New South Wales v Corbett [2007] 230 CLR 606, 612 at (22) Ousley v The Queen (1997) 192 CLR 69, 111 per McHugh J Papakosmos v R (1999) 196 CLR 297 R v Blick [2000] 111 A Crim R 326 R v Camilleri [2007] 68 NSWLR 720 R v Cornwell NSWSC (ureported 20 February 2003) (Howie J) R v EM [2003] NSWCCA 374 R v Esposito (1998) 45 NSWLR 442; 105 A Crim R 27; R v GK [2001] 53 NSWLR 317 at 324 R v Haddad & Treglia [2000] 116 A Crim R 312 at (73-75) R v Horton (1998) 45 NSWLR 426; 104 A Crim R 306 R v Petroulias [No 8] 2007 NSWSC 82 R v Petroulias [No 9] 2007 NSWSC 84 R v Pinkstone SCWA (unreported) 10 March 1997 (White J) R v Serratore (1999) 48 NSWLR 101 R v Su & Ors (1997) 1 VR 1 at pp 37 and 38 R v Suteski [2002] 56 NSWLR 182 at 199 (116) R v Ye Zang [2000] NSWSC 1099 Simpson J (at 44) Robinett v Police [2000] 78 SASR 85; 116 A Crim R 492 per Bleby J Smith v The Queen [2001] 206 CLR 650 Williams v Keelty [2001] FCA 1301; [2001] 1111 FCR 175 at (235) per Hely J
PARTIES:	Regina (C'Wealth) v Omar BALADJAM [No 48] 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