Regina v Lodhi

[2006] NSWSC 641

CITATION:	Regina v Lodhi [2006] NSWSC 641 This decision has been amended. Please see the end of the judgment for a list of the amendments.
JUDGMENT DATE :	27 April 2006
JUDGMENT OF:	Whealy J at 1
DECISION:	I decline to exclude the evidence
CATCHWORDS:	Criminal law - application to exclude evidence - s 137 of Evidence Act (NSW) - risk of unfair prejudice - prejudice occasioned by intense media scrutiny
LEGISLATION CITED:	Evidence Act (NSW) 1995
CASES CITED:	Ahern v The Queen (1988) 165 CLR at 93, 95 and 99 Masters, Richards & Wunderlich (1992) 59 A Crim R 445 at 454 Smith v The Queen [2001] 206 CLR 650 at 653 Odgers Uniform Evidence Laws 5th Edition at page 114 Papakosmos v The Queen (1999) 196 CLR 297 at 307, 312 and 321-322
PARTIES:	Regina v Faheem Khalid Lodhi
FILE NUMBER(S):	SC 2005/1094
COUNSEL:	Mr R. Maidment SC; Mr G. Bellew - Crown Mr P. Boulten; Mr P. Lange - Accused
SOLICITORS:	DPP (Commonwealth) - Crown Michael Doughty - Accused

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

WHEALY J

THURSDAY 27 April 2006

2005/1094 - REGINA v Faheem Khalid LODHI

JUDGMENT - Application on behalf of the accused to exclude “Brigitte” evidence

1 HIS HONOUR: On Thursday 20 April 2006 Mr Boulten SC made an application that certain categories of evidence not be admitted at the trial. The essential nature of the application was that the evidence was not relevant within meaning the s 55 of the Evidence Act (NSW) 1995. Secondly, Mr Boulten argued that, even if the evidence were relevant and otherwise admissible, it should be excluded under s 137 of the Evidence Act.

2 On 21 April 2006 I gave a ruling in the matter. I held that the evidence outlined by Mr Boulten was, in my view, relevant in the proceedings in that it was evidence, if it were accepted, that could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings. Secondly, I held that I would not exclude the evidence because I was satisfied that its probative value was not outweighed by the danger of unfair prejudice to the defendant. These are my reasons for the decision I gave on that day.

The “Brigitte” evidence

3 The categories of evidence identified by Mr Boulten may be briefly summarised as follows:

(i) The evidence of the witness Kwon who identified Salahudin, a person who trained with him in an LeT camp, as being the same man shown in the photograph of Willie Brigitte.


(ii) The evidence of Altaf and Ahmad that they met a man at the flat premises at Boorea Avenue Lakemba who described himself as an architect from Sialkot.

(iii) The evidence of the search of Brigitte’s premises and evidence as to the items found there pursuant to the Search Warrant.

(iv) Evidence that a phone in the name of Brigitte was used to contact the telephone service utilised by the accused in May 2003 and the relevant telecommunication records.

4 Against the context of the submissions made on behalf of the accused, the Crown provided some further detail of documents that would be produced arising from the search of Brigitte’s premises. They were -

· A small “guarantee card” apparently stamped by a Paris retail outlet, with the “Sam Praveen” mobile telephone number (obtained by the accused on 6 May 2003) handwritten as “0061 4042 33 906”, suggesting that it had been recorded prior to Brigitte’s arrival in Australia.

· Map of Australia issued by the Anti-Nuclear Movement (Exhibit “B” on the present application)

· A publication called “L’Art de Guerre”

· A notebook containing handwritten extracts from “The Art of War”

· An empty magazine for a military Styer Rifle

· A DVD or CD containing images of a substantial number of pages from magazines in the French language, with photographs, suggesting they are articles concerning military weapons and other items to do with military assault action.

· Magazines on military and intelligence issues; and articles on the Australian SAS in Afghanistan (all contained on the DVD or CD)

· Other material contained on CD or DVD but not as yet fully itemised.

5 For completeness, I should add that in the Crown case statement (Exhibit “A”) on this application, the Crown had stated (para 22) that the Crown case is that, together with the circumstantial evidence as a whole, the material outlined above evidenced the purpose in Brigitte’s visit to Australia as going well beyond that legitimately held by a person holding a tourist visa. The Crown will say that the evidence points rather to Brigitte’s purpose in Australia as one connected generally with the preparation for, the engagement of a person in, or assistance in a terrorist act.

Submissions by counsel

6 In relation to the relevance argument, Mr Boulten stressed that none of the material identified above as relevant to Brigitte will be tendered by the Crown to show that the accused and Brigitte were participating in relation to the implementation of the precise charges in the indictment. In other words, it is not suggested by the Crown that it can demonstrate by any of the above evidence that Willie Brigitte was a participant in the making of, collection of or possession of documents as referred to in three of the four counts. Nor is it suggested that there will be evidence to show that he directly participated in the preparation for the terrorist act involved in the remaining count.

7 Mr Boulten argued that all that is shown, at its highest, by the material the subject of the present application is that there may have been some type of association or relationship between the accused and Brigitte. In addition, an examination of the temporal sequence involved in the four charges against the accused show that Willie Brigitte was detained by Immigration authorities on 9 October 2003 whereas three of the four charges related to alleged situations involving the accused after that date.

8 Mr Boulten submitted that there was no independent evidence from which one could draw the inference that the accused and Willie Brigitte were acting together in concert in relation to the matters involved in the four charges (Ahearn v The Queen (1988) 165 CLR 86 at 93, 95 and 99).

9 The Crown accepted the validity of the principles in Ahearn’s case and pointed to a similar distinction appearing in Masters, Richards and Wunderlich (1992) 59 A Crim R 445 at 454. The Crown, however, argued that the evidence the subject of the present application is circumstantial evidence which, if admitted, goes to colour or complete the mosaic of the Crown case. In particular, it provides a context against which the actions of the accused may properly be assessed by the jury.

10 The Crown does not argue that the evidence is designed to show, or capable of showing, that Brigitte was involved in the specific acts by the accused which relate to each of the counts in the indictment. Rather, the Crown case will be, (as appears from Exhibit “A”) that the accused had a covert and illicit relationship with Willie Brigitte, a trained terrorist, who came to Australia in circumstances that tend to demonstrate he was here in connection with the establishment of preparatory steps towards terrorist acts being committed in Australia. The purpose of the evidence is to complete a circumstantial picture which will enable the jury to draw inferences as to the accused’s knowledge and intention in relation to the offences charged. In that sense, the evidence goes directly to a fact in issue namely the fault elements in each of the charges.

11 In support of its submissions the Crown carefully took the Court through a considerable amount of the detail that will alleged to arise in the trial about Willie Brigitte. First there is the aspect of his training with LeT in Pakistan, if the evidence of Kwon be accepted. Secondly, there is the fact that the accused himself spent a considerable time in Pakistan in 2001, 2002 and again in the early part of 2003. Thirdly, there is the mutual Pakistan connection evidenced by calls made on Brigitte’s telephone service to a Pakistan number and the fact that much later, after the arrest of Willie Brigitte, there was a contact between the accused and the mutual Pakistani number on 26 October 2003. The evidence related to this last matter will arise from telephone records and personal surveillance of the accused.

12 Fourthly, there will be a deal of evidence to show that the accused arranged for a telephone service to be issued in a false name, namely, “Sam Praveen”. Particulars found in his possession or at his unit on 26 October 2003 provide precise evidence that corresponds with the false telephone number that was arranged on 6 May 2003. Fifthly, there was a connection between Brigitte’s telephone number in France on 7 May and the Pakistani number. This was followed, about one and a half hours later, by a contact between Willie Brigitte’s number and the “Sam Praveen” number.

13 There was further contact between the Brigitte French number and the “Sam Praveen” number on 13 May 2003, that is the day before Mr Brigitte would have left France to travel to Australia. There was another call on the morning of 14 May.

14 Sixthly, Willie Brigitte arrived in Australia on 16 May 2003, giving, as the purpose of his visit a holiday and saying that his usual place of residence was France and that he had come on an Air New Zealand from Auckland. Among documents found in the possession of the accused there was an entry in a notebook which read “16th Friday 8.30am NZ”. There then appears to be a flight number and an entry “blue hat – yellow T-shirt. Glasses.” (The Crown says that it is to be inferred from all this that the accused was expecting the arrival of Brigitte on 16 May 2003 and that they had had contact in anticipation of his arrival. The “Sam Praveen” service was obtained primarily to permit covert contact between the accused and Brigitte, although it may have been used for other purposes).

15 Seventhly, the first offence with which the accused is charged occurred on 3 October 2003. This was the obtaining of maps from the electricity supply system using a false name. The next of the acts charged involved the obtaining of the details of chemicals and this occurred on 10 October 2003, the day after Brigitte was arrested. Eighthly, during Brigitte’s time in Australia there were a number of calls made by a mobile service associated with Brigitte to the service associated with the accused. The service associated with Brigitte was again one that had been obtained in a false name through Vodafone. It was first activated on 31 May 2003 by a mobile service using an SIM card, which was later found in the possession Abdul Rakib Hasan, the butcher from Lakemba. That card, it would seem, was later removed from the telephone, from the handset, and replaced with another that was found in the possession of Brigitte or in his unit at or shortly after arrest. This mobile phone service was taken out in the false name of “John Huck”. There were calls made by the John Huck service on 1 June to the “Sam Praveen” service and there were, in addition, 27 calls made between 31 May and 9 October 2003 between the “John Huck” service and the butcher shop at Lakemba. Notes found in the unit occupied by Brigitte included paper with the name and telephone number of Abdul Rakib Hasan.

16 Ninthly, there was the evidence of Ahmad and Altaf that Hasan had visited Willie Brigitte’s flat in company with another man who said he was an architect in the city and who said he came from Sialkot in Pakistan and had recently returned from a visit to Pakistan. In addition, Hasan was with the accused when he made the visit to the Internet Café at Campsie and made the telephone calls observed under surveillance on 26 October 2003.

17 Finally, there is the material found in the accused’s possession on CD’s and DVD’s. This considerable body of material relates to LeT and violent Jihaad. There was also a connection between this material and material found in Hasan’s premises.

18 Putting all of this material together for the purposes of the submission, the Crown maintained that the evidence sought to be excluded in the present application is powerful evidence in support of the Crown’s circumstantial case going to the accused’s knowledge and intention in relation to the offences charged.

19 The arguments advanced by Mr Boulten SC on the s 137 point focussed on a very considerable body of media material collected by the defence team to demonstrate the excessive publicity generated by the presence of Willie Brigitte in Australia. It is essentially because of this material that Mr Boulten suggested the jury will “over estimate” and “over value” any evidence that mentions the name Willie Brigitte. The Crown responded to this argument by suggesting that any possible danger of misuse by the jury of the subject body of evidence could be adequately eradicated by appropriate directions from the court.

Resolution of the issues

20 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.”

21 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.

22 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 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.

23 For present purposes, the facts in issue extend to and include the mental ingredients of the charges against the accused, described in the Criminal Code Act as fault elements: for example, the physical acts of the accused must have been deliberate; they must have been connected with the preparation for a terrorist act; and the accused must have known, that is have been aware, of the connection. In relation to count 2, the Crown alleges that the accused “intentionally” did an act in preparation for a terrorist act and this state of mind must be proved as well. All the fault elements involved in each charge must be proved beyond reasonable doubt.

24 The material sought to adduced by the Crown (including the body of evidence identified by Mr Boulten SC and which forms the subject of the present application) is, in my view, all material, which, if it were accepted, could rationally effect the assessment of the probability of the existence of the fault elements I have identified. Section 55 of the Evidence Act is broadly stated and is 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. I accept that the evidence of the association between the accused and Willie Brigitte does not appear to go so far as to demonstrate his involvement in the physical elements of the offences with which the accused is charged. Of course, if the evidence of the relationship did tend to go that far, there could be no question other than the evidence would be regarded as relevant. The question is: does the more restricted nature of the relationship bring about a situation where the evidence could be said to lack relevance in the sense postulated by s 55 of the Evidence Act? In my opinion, the answer to that question must be in the negative.

25 I turn now to consider the second argument raised by Mr Boulten SC. I have endeavoured to read the very significant body of material collected from media releases for the purposes of the argument. I also take into account that this is by no means the only media attention that would have been made in relation to Willie Brigitte at the time of his arrest and into the period of 2004 when the accused was himself arrested. I agree with Mr Boulten that many of the statements made in the press are simply examples of sensationalism that have no possible warrant in fact. Mr Boulten’s main argument is that the members of the jury may have seen some at least of this material and may recollect it so that any mention of Willie Brigitte will carry with it the possibility that whatever evidence is adduced at this trial will be misused I am unable to accept this submission.

26 First, it is now nearly two and a half years since Willie Brigitte was arrested and deported from Australia. While general impressions may remain in the minds of some members of the public, I am confident that detail will have been forgotten. Secondly, it is two years since the accused himself was arrested and, while there have been references to Willie Brigitte since that time in the media, there is no reason to suppose that the accused himself received the treatment that Brigitte did in the press. Thirdly, I agree with the Crown’s submissions that an appropriate direction to the jury will bring home to them a self evident matter, namely that they are to confine their attention to evidence about Brigitte that is presented in this trial. There may be other matters that ought be included in such a direction and I will, no doubt, be assisted in that regard by suggestions from both the Crown and the defence at the appropriate time.

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28/06/2006 - File number omitted on cover sheet - Paragraph(s) Cover sheet