Regina v Amir Ibrahim El Mostafa

[2007] NSWDC 332

CITATION:	Regina v Amir Ibrahim El Mostafa [2007] NSWDC 332
HEARING DATE(S):	Please see Regina v Amir Ibrahim El Mostafa [2007] NSWDC 219 for hearing dates
JUDGMENT DATE:	27 April 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Evidence tendered by the Crown is admissible
CATCHWORDS:	Criminal law - Evidence - Telephone intercepts - Alias of accused - Prejudice
LEGISLATION CITED:	ss 135, 137 Evidence Act 1995
PARTIES:	Regina Amir Ibrahim El Mostafa
FILE NUMBER(S):	06/11/0574
COUNSEL:	Mr Calvert for the Crown Mr Simpson for Amir Ibrahim El Mostafa
SOLICITORS:	Ms Flemming for the NSW DPP Ms Duffy for Amir Ibrahim El Mostafa

JUDGMENT

1. These are applications by Mr Simpson on behalf of the accused El Mostafa to reject evidence tendered by the Crown or for me to rule that such tendered evidence is inadmissible. What is proposed to be tendered by the Crown is the product of two telephone intercepts legally obtained in which it is admitted by Mr Simpson his client, Mr El Mostafa, was a participant.

2. For the purposes of the voir dire I have had tendered and admitted into evidence a transcript of both of the relevant telephone calls. They are transcripts prepared by the defence. I also admitted into evidence some documents concerning another charge faced by Mr El Mostafa and which was dismissed.

3. Mr Simpson accepts the following propositions: that the translations are those recently obtained by the defence; that the intercepts are relevantly short in duration; that each of the calls contained his client's voice; in each call his client is referred to as MV 1 and that the telephone intercepts were lawfully intercepted.

4. I will deal first with VDA and VD2 which are both transcripts of a telephone call which is referred to as call number 5 and occurred on 23 March 2005. Mr Simpson's first submission is that any reference to his client being called Abu Fajer by the other caller should be inadmissible because I have previously given a ruling that evidence of an admission by his client given during a police interview is inadmissible. That admission was to the effect that he is known as Abu Fajer.

5. Mr Simpson argues that it would be unfair and inappropriate for the Crown to try to get in evidence of a similar admission in another way. I reject that submission. The ruling I gave was in another context and concerned an admission allegedly made in the context of a police interrogation. I do not regard it as inappropriate for the Crown to tender other evidence of admissions to the same effect which may not be affected by the same difficulties. It seems clear to me from this particular telephone call that it is open to the jury to infer that the person identified as MV1 adopts the reference to him by the name Abu Fajer.

6. The second point in respect of call number 5 is in respect of material making reference to the American government and terrorism, and the third point concerns references by the other caller, an unidentified person, critical of the Shiia. The Crown prosecutor before and also during the course of the argument indicated that he would not press any material touching upon those aspects and therefore there is no need for me to rule.

7. The fourth aspect of call number 5 objected to by Mr Simpson occurs in a sequence of the telephone conversation commencing on page 3 of VD 2, about six lines in and finishing at the top of page 4 two lines in. Mr Simpson drew my attention to a charge which his client faced arising from events on 4 February 2005, that is some five days after the alleged riot. The charge against him was brought by a person in the Arabic community in Auburn. That charge went to court and was dismissed by the magistrate. Mr Simpson's point in respect of that part of call number 5 which I identified earlier is that it would be unfair to admit that component because it is not entirely clear that the issues which his client was discussing in that component are necessarily referable to the events which occurred on 30 January 2005, which is the subject of this trial, or whether they might refer to the other charge.

8. However, in my opinion there is no doubt that that part of the telephone conversation was referring to the events on 30 January 2005 because of the references to the event, the topic of the conversation at that part of the transcript being reported on television including in Iraq and on foreign channels.

9. In my opinion there is no risk (and this component of the application was made under s135 and s137 of the Evidence Act 1995) of any confusion. I therefore rule in respect of call number 5 that references to Abu Fajer by the other caller adopted by Mr El Mostafa are admissible as is that component of the call which I referred to earlier and which is in fact better identified, because of some further amendments made by the Crown during the course of argument, by reference to VDA. The unexcised portions over pages 6 and 7 in my opinion are admissible and I so rule.

10. Just returning to call number 5 Mr Simpson made a submission about references to Muslims towards the end of that call but that is no longer pressed by the Crown.

11. Turning to call number 16 which was made on 25 June 2005 Mr Simpson objects to references to his client as Abu Fajer. In my opinion it is open to the jury to infer that references to Abu Fajer during the course of that telephone conversation were adopted by the accused.

12. Additionally Mr Simpson made objection to references in that call to books and publications concerning the Shiia and also to any references by the other caller who was unidentified critical of the Shiia. Once again the Crown Prosecutor either before or during the course of argument has agreed to the deletion of those portions touching upon those topics and there is no need for me to rule.

13. Mr Simpson's final point in respect of call number 16 is that it will be confusing to permit evidence to be led of that part of the telephone conversation relating only to the riot because part of the telephone conversation material related to the court case. I agree that part of the telephone conversation clearly related to the court case or at least to the prosecution of Mr El Mostafa which was dismissed. However, the Crown Prosecutor is pressing those components of the transcript which are only referable to the events which are the subject of this trial. He is not pressing any component which expressly or impliedly may refer to the other court proceedings which were dismissed against Mr El Mostafa.

14. There is in my opinion, as the Crown submits, a division within the transcript of the call amongst the various topics which are discussed. In my opinion the transcript which is now VDB, as amended by the Crown, leaves in only components which are relevant to the issues in this trial. I acknowledge that if Mr Simpson wished to cross-examine anyone on those components by reference to the other court case then there may be some difficulty. This is not a difficulty I think which is unfair. It is a difficulty faced by many defence counsel in running a trial. It is difficult to imagine a line of cross-examination which may wish to touch upon issues to do with the other court case but, even if they did, the prejudicial value in my opinion would be reduced by the fact that Mr El Mostafa was acquitted and by the sounds of it fairly convincingly in those proceedings.

15. Accordingly in my opinion those components of VDB which are not excised are admissible and I so rule.

16. I would add that Mr Simpson has reserved his position so far as a component of one of the telephone transcripts which has been excised by the Crown which he may wish to be part of the evidence and, if necessary, I will hear him another time on that if there can be no agreement reached.

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