Regina (C'Wealth) v Elomar [No 6]

[2008] NSWSC 1445

CITATION:	Regina (C'Wealth) v Elomar & Ors [No 6] [2008] NSWSC 1445
HEARING DATE(S):	16/12/08
JUDGMENT DATE :	16 December 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
DECISION:	I hold that the evidence should not be excluded and may be admitted at trial.
CATCHWORDS:	CRIMINAL LAW - Application to exclude identification evidence - Breach of s 3ZP of Crimes Act 1914 (Cth) - Failure to have separate photographic arrays - Exercise of discretion under s 138 Evidence Act 1995 - Need for proper training and co-ordination of police during joint operations
LEGISLATION CITED:	Crimes Act 1914 (Cth) Criminal Code Evidence Act 1995
CASES CITED:	DPP v Coe [2003] NSWSC 1 May 2003 Lobban [2000] 112 A Crim R 357 per Martin J R v Camilleri [2007] 68 NSWLR 720 R v Cornwell NSWSC Common Law Division unreported 20 February 2003 R v EM [2003] NSWCCA 374 per Howie J R v Petroulias [No 8] 2007 NSWSC 82 R v Petroulias [No 9] 2007 NSWSC 84 Robinett v Police [2000] SASR 85; 115 A Crim R 492 The Queen v Lodhi William Edward Pearson [2000] 114 A Crim R 80 Webb v R (1994) 122 ALR 41 R v Wood [2008] NSWSC 817 per Barr J
PARTIES:	Regina (C'Wealth) v Mohamed Ali ELOMAR [No 6] Regina (C'Wealth) v Abdul Rakib HASAN Regina (C'Wealth) v Khaled CHEIKHO Regina (C'Wealth) v Moustafa CHEIKHO Regina (C'Wealth) v Mohammed Omar JAMAL
FILE NUMBER(S):	SC 2007/2399001; ; 2007/2400001; 2007/2395001; 2007/2398001; 2007/2452001
COUNSEL:	R Maidment SC; G. Bellew SC; C O'Donnell; Ms S McNaughton - Crown D Dalton SC; E Ozen - Accused Elomar Ms D Yehia; Ms S Beckett - Accused Hasan C Waterstreet; P Lange - Accused K Cheikho R Button SC; I Nash - Accused M Cheikho G Scragg; D Carroll - Accused Jamal
SOLICITORS:	Commonwealth DPP Nyman Gibson Stewart - Accused Elomar Legal Aid Commission - Accused Hasan Lawyers Corporation Ltd - Accused K Cheikho William O'Brien & Ross Hudson Solicitors - Accused M. Cheikho Michael Doughty Solicitor - Accused Jamal

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

WHEALY J

PARRAMATTA: TUESDAY 16 December 2008

2007/2399001 - Regina v Mohamed Ali ELOMAR [No 6]
2007/2400001 - Regina v Abdul Rakib HASAN
2007/2395001 - Regina v Khaled CHEIKHO
2007/2398001 - Regina v Moustafa CHEIKHO
2007/2452001 - Regina v Mohammed Omar JAMAL

JUDGMENT - Application to exclude identification evidence – Breach of s 3ZP of Crimes Act 1914 (Cth) – failure to have separate photographic arrays – s 138 of Evidence Act 1995 – evidence allowed – need for proper training and co-ordination of New South Wales and Federal police during joint operations

1 HIS HONOUR: These are applications brought by Mr Button SC on behalf of Moustafa Cheikho, and by Messrs Waterstreet and Lange on behalf of Khaled Cheikho. The first is an application to exclude the identification of Moustafa Cheikho as being a person who was present at a camping trip between 12 and 14 April 2005 at Mulga Creek Station in far west New South Wales. The second application on behalf of Khaled Cheikho is in similar terms. It seeks to exclude evidence of Khaled Cheikho’s identification as being a person involved at the same camping trip.

2 The Crown proposes to call evidence in the trial from Matthew Cooley, an associate of Mr Fairey, the owner of the Mulga Creek property. The Crown also proposes to call evidence from Mr Fairey’s ex-partner Janine Bodkin. Their evidence will go, in part, to the identification of Moustafa Cheikho and Khaled Cheikho as being persons present at the camp. In particular, the evidence will include Mr Cooley's identification of the four of the accused as persons who were on the property at the relevant time. (There was no suggestion that the fifth accused Mr Jamal was there at the time). Secondly, there will be evidence of identification from Ms Bodkin of Moustafa Cheikho as the person with whom she spoke upon the arrival of a group of men at the property.

3 The identification procedures were arranged by the police separately with each of Mr Cooley and Ms Bodkin. They were carried out principally by Detective Toohey and videotaped by other officers on 16 April 2005. The procedure involved showing each of the two witnesses a series of photographs, some 30 in all, and asking them, in the case of Ms Bodkin, to identify the person with whom she had spoken, and in the case of Mr Cooley, asking him to identify people he had seen at the property at the relevant time.

4 Yesterday, when the question arose, it became apparent that the application had first been foreshadowed by Mr Waterstreet in correspondence with the Crown. This identified that it would be alleged that there had been a breach of s 3Zp of the Crimes Act by Detective Toohey, in that he had failed to undertake a separate identification process for each of the suspects who were under investigation, as required by that section.

5 When the matter was raised, Mr Waterstreet assured me that he anticipated there would be some discussion between the Crown and his side so that the issue could be shortened, or perhaps even resolved. Regrettably that has not happened, so it has been necessary to deal with this essentially pre-trial issue during the middle of the trial - perhaps "the middle of the trial" is too ambitious a phrase, but at least during the currency of the trial. This is a situation I would have preferred to avoid given that the Court has already devoted many months to the resolution of pre-trial issues. The practical consequence is that the jury have had to remain out of Court for a number of hours. This is precisely the situation I had hoped to avoid.

6 Yesterday, Mr Waterstreet indicated (transcript at page 1336) that his side would not be denying that Khaled Cheikho was present at the camp, but that the real thrust of the application would be a denial that Mr Khaled Cheikho was the person who was “principally doing the talking” at Mulga Creek, when conversations were had between the men and Mr Cooley. However, this morning Mr Lange, who presented the arguments, appeared to seek to move somewhat away from Mr Waterstreet's very fair concession, and put in issue the identification process itself and hence the identification evidence. This was on the basis that the identification evidence had been obtained illegally within the meaning of s 138 of the Evidence Act, and that it should therefore be excluded.

7 Mr Button of senior counsel supported the argument and put propositions on behalf of Moustafa Cheikho as to why the Court should conclude that there had been a breach of s 3ZP of the Crimes Act 1914. Both Mr Button and Mr Lange put various arguments to the Court as to why the Crown had failed to discharge the burden it bore under s 138 of the Evidence Act. This argument assumed that the Commonwealth Crimes Act had been breached. The Crown took issue with those submissions and put reasons why, in its submission, the Court should be persuaded that the evidence should not be excluded, but in fact should be admitted.

8 I will not go into the details of the evidence in any great particularity. Nor will I address each and every argument. I will however, refer briefly to some of the evidence. There is a statement that, by consent, the Court has been able to take into account. This is the statement of Janine Bodkin. Ms Bodkin says that on Tuesday, 12 April about 1pm she was alerted to the presence of a car outside the property. Ms Bodkin, in her statement, says she had a conversation with the driver of the car who told her that “they were the hunters”, although he said the actual hunters hadn't arrived yet. There was discussion about filling out forms, about providing a map of the property and the conditions of use of the property. Ms Bodkin guided the men to an area about three to four kilometres from the house.

9 In her statement, she described the driver and gave evidence about his payment of approximately $500 in cash. She said that on 16 April 2005 Detectives Toohey and Passak attended the residence, and that Detective Toohey showed her a photo presentation of about 30 photos of males. She had a look at all the photos and picked out one of them, number 9, as the man that had paid her the $500. It is clear that the man in this particular photograph was Moustafa Cheikho.

10 Matthew Cooley had been staying up at Mulga Creek Station for about a week before 12 April 2005. He learnt that some hunters were going to be on the property from 12 April 2005. On that particular morning he was not at the property, as he had to go to a funeral in Bourke. Later that day, Mr Cooley and the owner of the property went down to talk to the men who, by now, had arrived at the property. In his statement, Mr Cooley described the men in a very general way, and he observed one of the men in particular speaking to the owner. After that he and the owner went back to the house.

11 The next day he saw the men again up near the house, and he had a conversation with one of the males about motor vehicle problems. The next day the police came out to the property and the owner and Mr Cooley spoke to the police. One of the police officers asked whether Mr Cooley might be able to recognise any of the males from a group of photos, and there then took place an identification procedure involving an array of 30 photographs.

12 Mr Cooley picked out five photographs, being numbers 4, 9, 11, 20 and 25. He identified these as people he had seen at the property in connection with the trip. These photographs were respectively of Mr Elomar, Mr Moustafa Cheikho, Mr Khaled Cheikho, an alleged co-conspirator Mr Touma, and Mr Hasan. (I might observe at this point that counsel for Mr Elomar and Mr Hasan have indicated that they do not put in issue the identification of their clients for the purposes of the present application).

13 The Court was shown the presentation of the procedures involved in the two identifications on a DVD, which became Exhibit “A” on the voir dire. It is clear that Miss Bodkin very quickly and definitively identified the photo of Moustafa Cheikho. She said, "It was him, definitely". Mr Cooley, although not as forceful in his identification, quite carefully picked out the photos I have indicated. He was quite confident that these five males were persons who were at the property. There was one other photograph, number 3. He was not certain about that person, and indeed the police officer who gave evidence about the matter in Court, and who conducted the identification, Senior Constable Toohey, was unable to identify the person in photograph 3.

14 The first issue that arises on this application is whether there has been, in the case of each identification, a breach of s 3ZP of the Crimes Act 1914 (Cth). That section is in the following terms:

“ 3ZP Identification procedures where there is more than one suspect
If:
(a) a constable is attempting to ascertain:
(i) which of 2 or more suspects committed an offence; or
(ii) the identities of 2 or more suspects who may have been jointly involved in an offence; and
(b) for that purpose, the constable intends to conduct an identification parade or to identify a person by showing a photograph or a picture of a suspect to a person;
the constable must undertake a separate identification process for each of the suspects.”

15 To make some sense of s 3ZP it is necessary, I think, to look at a number of other sections of the Crimes Act 1914. In particular I think it is necessary to look at ss 3ZM, 3ZN, 3ZO, 3ZP and 3ZQ. The Crown has argued that, when regard is had, in particular to Senior Constable Toohey's evidence, that it could not be said that he, as the constable conducting the identification processes, was attempting to ascertain the identities of two or more suspects who may have been jointly involved in an offence. Those of course are, in part the words of the section.

16 It is fair, I think, to say that Senior Constable Toohey has suggested, at least when he was giving his evidence here, that he saw a distinction between the fact that, on the one hand, these men were generally being investigated with a view to seeing whether they had committed an offence under the Criminal Code, namely an offence involving some aspect of terrorism or politically motivated violence, and, the situation, on the other hand, where the procedures at Mulga Creek were more in the nature of intelligence gathering. Senior Constable Toohey appeared to believe that the events at Mulga Creek did not in themselves involve an offence.

17 It is not unimportant, so far as Senior Constable Toohey is concerned, to state that he said, which I accept, that he simply did not know of the provisions of s 3ZP of the Crimes Act 1914. He said, however, that in effect while the men may have been guilty of an offence, the Mulga Creek presence was to his mind, more of an intelligence gathering operation. Their presence there was not, as I have said, an offence in itself.

18 The position was made more complicated by the evidence of another New South Wales police officer, Ms Bibiana Passak who was also present at the property. She was clearly at the scene in a subordinate role doing the work involved in videotaping et cetera, and she was, as I say, clearly junior to Senior Constable Toohey. She conceded, however, that her state of mind was that she did regard Moustafa Cheikho as a suspect for the commission of a Commonwealth offence. That was plainly her state of mind.

19 To complicate matters even further there was, as well, a federal agent there. It is to be presumed that Federal Agent Paul Deller knew of the provisions of s 3ZP of the Crimes Act 1914 and he certainly said in his evidence that he was so aware, although I rather gathered the impression that he may not have necessarily passed a test if he were to be put to the proof of stipulating the precise requirements of the section. Be that as it may, Federal Agent Deller conceded that he was aware of the provisions of the section. He accepted that there were 30 photos shown. He identified photos which were shown to him in the witness box as being the ones that were shown to Mr Cooley and to Ms Bodkin. He conceded that he did not tell Senior Constable Toohey that this array did not comply with the Federal legislation.

20 However, he indicated that this was because he, in effect, took a step backwards in the procedure. He deferred to Senior Constable Toohey who was conducting the processes. For reasons he did not make not entirely clear, Federal Agent Deller seemed to think that, because Senior Constable Toohey, a New South Wales Policeman, was conducting the procedures, the identification procedures relevant to the New South Wales police force would, or should, prevail. His role, I stress, was a limited one, principally to operate the video of the procedures and to keep his superiors informed of the situation. He, like Senior Constable Toohey, had been involved in obtaining a warrant or warrants for intercepts or listening device product, and he properly conceded that, at least in connection with any such application, he would have had to identify an offence or offences for the purposes of making the application.

21 In re-examination Federal Agent Deller confirmed that his specific role, however, was that of videotaping the procedures.

22 The position as to the applicability of the section is, as I said during argument, far from clear. The Crown has asked me to find that the matters of the greatest consequence are the views of Senior Constable Toohey. If they be accepted, according to the Crown's submission, it could not be said that the section had any application. Because I have had to give a decision in this matter quickly, I have not formed a definite and final conclusion on this important preliminary issue. I am prepared to accept, for the purpose of the argument, however, that the section has been breached. I am less certain about this being so in the case of the identification procedure involving Ms Bodkin, because it seems to me that she had simply been asked to identify one person, and indeed what she was precisely asked to do was to identify one person to whom she had spoken. She was not called upon to identify more than one “suspect”, even if the person she spoke to could be described in that way.

23 Even if the broader view be taken, that this was part of an investigation to see whether an offence had been committed, and an endeavour to identify who may have committed the offence, then it must be said that the section is less likely to apply to her identification process because she was not involved in identifying multiple suspects. She was only involved, as I say, in identifying the one person.

24 In relation to the Cooley identification process, however, it seems to me that there is a respectable argument, particularly if one were to give the section a broad meaning and a useful meaning, that would require the Court to take an objective view about what was occurring, rather than simply to attempt to focus upon the subjective intentions of one of the constables present at the procedure, even if that constable were the officer in charge. The problem of course is further compounded when there were two other persons present, each of whom falls within the definition of a constable, and where each seemed to have taken a different view, or at least arguably a different view, than did the principal constable about the purpose of their joint endeavours.

25 But putting those last mentioned complications to one side, it seems to me there is, as I have said, a respectable argument to suggest that in relation to the facts of the present matter, s 3ZP was triggered. The better view is that objectively what was happening was that there was an attempt to ascertain the identity of two or more suspects who may have been jointly involved in an offence. That being so, the conclusion I would reach, on this admittedly preliminary view, is that here, certainly in the case of the Cooley identification, there was a failure to undertake a separate identification process for each of the suspects.

26 It is not necessary, I think, to emphasise the fact that Senior Constable Toohey appeared to be applying an approach that was entirely consistent with New South Wales practice and procedure for identification process by way of an array of photos. If the matter had fallen to be determined by the applicability of New South Wales procedures, then the present exclusion application would have little, if any, chance of success.

27 As a consequence, making the assumptions I have made, I conclude that there has been a breach of the section, certainly in the case of the Cooley process, and possibly in the case of Ms Bodkin, although less certainly so.

28 That being the position, it is necessary for the Court to consider the applicability of s 138 of the Evidence Act.

“ SECTION 138

Discretion to exclude improperly or illegally obtained evidence

(1) Evidence that was obtained:

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


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

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

(a) the probative value of the evidence; and

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

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

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

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

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

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

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

29 The Court of Criminal Appeal has itself considered the operation of s 138 of the Evidence Act in recent times. In R v Camilleri [2007] 68 NSWLR 720 (McClellan CJ at CL, Bell and Howie JJ) reinforced the views expressed by Howie J in R v EM [2003] NSWCCA 374, to the effect that s 138 is concerned with balancing public interests. McClellan CJ at CL (with whom the other members of the Court agreed) said at 727 (31): -

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

30 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.”

31 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”.

32 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.”

33 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.

34 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”.

35 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. (Although these decisions were involved, as was Cornwell with improprieties, they have a value by analogy in relation to the present issue which is concerned more precisely with an illegality or the actual breach of a statutory provision.)

36 Both Mr Button SC and Mr Lange have addressed the Court on the extent of the probative value of the evidence. Counsel, on behalf of their respective clients, differed somewhat on this point. But the difference is not a major one and I think the matter can be addressed broadly. In my view the probative value is quite high in each case. So too is the importance of the evidence to the Crown case. In the case of Khaled Cheikho, for example, the thrust of the defence case is that he is to be assessed, in terms of the Crown case at least, differently from the other accused, in the sense that he had not been personally involved in the purchase of weapons or chemicals. His association with the other accused, accordingly, in a “training” situation is quite important to the Crown case.

37 The overall approach of Khaled Cheiko’s defence is to limit his involvement in the alleged conspiracy. Therefore, I think that evidence of his identification as a person present at this camp, in that context, must also be said to be of reasonably high probative value. In a entirely circumstantial case, evidence of this kind can, in an important way, affect the assessment of the probability of the existence of a fact in issue. This relates to both his physical acts and to his state of mind. In the case of Moustafa Cheikho, it is true that he had already been identified by Ms Bodkin as the driver of the vehicle, and the person who had paid her the money on the relevant day. That may, in one sense, lessen the importance of the evidence, but it does not lessen the probative value of the evidence of his subsequent identification by Mr Cooley. I consider, overall, that the evidence of his identification as a person in attendance at this camp remains of reasonably high probative value.

38 Mr Button fairly accepted that it would have a degree of probative value, but I think that the value of the evidence is higher than counsel was prepared to concede. Neither counsel had anything to say about the nature of the charge involved here. It is obviously of the highest seriousness. The offence carries a maximum penalty of life imprisonment. In both Dally and in Camileri the Court of Criminal Appeal has emphasised the importance of this consideration.

39 An important consideration here relates to the nature of the contraventions. It was not argued that they were deliberate, and indeed the evidence plainly shows that to be so. It was but faintly argued by Mr Lange that they were reckless, in the sense stipulated by the section, but it was certainly put by both counsel that the actions of Snr Constable Toohey, in particular, were negligent.

40 I have had occasion in earlier decisions in this trial, and for that matter in The Queen v Lodhi, where issues of this kind had been raised, to note that there are justifiable criticisms that can be levelled at the investigating authorities because of a failure to properly coordinate investigative activities conducted on a joint basis between the New South Wales Police and Federal Police. In many instances this had resulted in New South Wales Police simply being unaware of the provisions of the Crimes Act 1914. In other situations, and this is a very good example of it, we here have a Federal Agent who was present, but because he was taking a subordinate role and really leaving it to the New South Wales police officer to conduct the procedures, no attempt was made to contemplate or consider drawing Senior Constable Toohey's attention to the provisions of section 3ZP of the Crimes Act.

41 Some responsibility must also be laid at the feet of those who were involved in sending the photos through. I can only assume that it did not occur to any of those persons that there might be some requirement in the Commonwealth legislation that needed to be addressed.

42 But, overall, the view I take is that, while there was a degree of carelessness here, and I am critical of the police for that, I certainly do not consider it was deliberate, and I do not consider that it was reckless. In particular, I do not think that there was any intention or attempt by the police to deny these men the rights that were available to them under the Crimes Act 1914 and, importantly, I do not think that there is any real suggestion in the overall submissions that the integrity of the identification process was affected in this matter by the failure to have separate photographic arrays prepared and presented. Mr Cooley did not have the slightest difficulty in identifying the four men he nominated as being at the camp. Ms Bodkin was very clear and definite in her identification of Moustafa Cheikho.

43 Both of the identifying witnesses had no problem at all in identifying the persons they picked out, and I do not think that there can be any suggestion that, if the proper procedures had been followed, any different result would have occurred.

44 It is not irrelevant, I think, to note that, certainly so far as Mr Waterstreet was concerned, as of yesterday he was prepared to concede that his client had been at the camp, although, as Mr Button said, if the evidence should be excluded, that is if the Crown has not discharged the onus it carried of satisfying the Court that the evidence should be admitted, then there was no reason why his client should not be entitled to take advantage of that situation. The point I am making perhaps is a broader one. It is that this identification issue has really only come up at the last minute, as it were, during the trial. Prior to yesterday when the point arose, it had been tacitly accepted that both Khaled Cheikho and Moustafa Cheikho were present at this camp at Mulga Creek.

45 The only relevance of these latter considerations is that they go to reinforce the conviction I have that the integrity of the process was not in fact affected by the failure to comply strictly with s 3ZP. I certainly would not classify the breaches as technical or trivial, but I do not think that they were so serious as to warrant this reasonably important evidence being excluded on the trial of this offence, serious as it is.

46 I do not think that there is any need to refer to any of the other particular subsections of s 138(3) of the Evidence Act. I accept that the identification processes could have been carried out without contravention of the laws. I accept, as Mr Button has argued, that the police could have sent through booklets in the proper form to enable the section to be complied with. But, overall, it is my view that the contraventions occurred, essentially, through ignorance and inadvertence, rather than as a result of considerations of practicality or timing.

47 I do not imagine that any proceedings of a disciplinary kind have been, or are likely to, be taken in relation to the contravention or contraventions, but I would like to draw the attention of the police to this decision. I ask that the Crown arrange for a copy of this decision to be made available to the relevant authorities. It is quite clear that there needs to be tuition and co-ordination at a high level so that police officers of both State and Federal persuasion understand the requirements of this rather complex legislation and endeavour to meet those requirements in future cases. There is also a strong argument to say that these procedures should be made uniform as between the Commonwealth and the States.

48 All that, however, is rather beside the point. I simply repeat that so far as the matters in s 138(3) are considered, having considered all of the relevant matters, it is clear to me that the Crown has comfortably established that the desirability of admitting the evidence outweighs the undesirability of admitting it, notwithstanding the breaches or possible breaches which may have occurred.

49 In those circumstances, I hold that the evidence should not be excluded and may be admitted at trial.

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