R v Khayat (No 3)

Khaled Khayat (Khaled) and Mahmoud Khayat (Mahmoud) stand charged on indictment with conspiracy to do acts in preparation for a terrorist act contrary to ss 11.5(1) and 101.6(1) of the Criminal Code Act 1995 (Cth) (the Criminal Code). The relevant acts are alleged to involve the use of an “improvised explosive device” or an “improvised chemical dispersal device”.

The Crown seeks to tender recorded interviews conducted with Khaled on 30 and 31 July and 1 August 2017. Khaled seeks to have the recorded interviews excluded on the following three bases:

All references to legislation in these reasons are, unless otherwise stated, references to the Crimes Act 1914 (Cth).

On 14 March 2019 I ruled that the recorded interviews of Khaled Khayat would be admitted into evidence. My reasons for this ruling are set out below.

Absent an express statutory authority to detain a person, once a person is charged it is necessary to bring that person before a judicial officer to determine whether that person ought be released on bail. Part 1C of the Crimes Act allows for the detention of persons arrested for terrorism offences for an “investigation period” before they are charged and brought before a judicial officer.

Section 23DB relevantly provides:

Section 23DE provides that, before the end of an investigation period, an “investigating official” may apply in writing to a magistrate for an extension of the investigation period. Section 23DE also, relevantly, provides for statements which must be included in any such application. Such statements include the reasons why the investigating official believes the investigation period should be extended (s 23DE(3)(g)) and the period by which the investigating official believes the period should be extended (s 23DE(3)(h)).

Section 23DF relevantly provides:

Section 138 of the Evidence Act 1995 (NSW) relevantly provides:

Section 85 of the Evidence Act provides:

Section 90 of the Evidence Act relevantly provides:

Each of the three grounds requires factual findings to be made. The findings with respect to the Instrument Ground are not in dispute. Rather than differentiate between the factual findings relevant to each ground, I propose to set out the relevant factual background chronologically since the order of events is particularly important for the Investigation Period and Inducement Grounds.

The Joint Counter-Terrorism Team (JCTT) conducted an operation, known as Operation Silves, which included the investigation into Khaled. The Senior Investigating Officer (SIO) was Federal Agent Chris Woods. On 27 July 2017 authority was given to the police to exercise powers pursuant to s 5 of the Terrorism Police Powers Act 2002 (NSW). Search warrants were also issued pursuant to s 3E of the Crimes Act.

A covert search warrant in respect of Khaled’s premises was obtained on 29 July 2017 between 2.30pm and 3pm pursuant to the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). The applicant, a member of JCTT, was found to have had reasonable grounds for suspecting that certain identified items were connected with the offences of possess, supply or make explosive for unlawful purpose (s 93FA(2) of the Crimes Act 1900 (NSW)) and conspire and agree to murder any person (s 26 of the Crimes Act 1900 (NSW)). The respective maximum penalties of these offences are 3 years’ imprisonment (s 93FA(2)) and 25 years’ imprisonment (s 26).

The search warrants referred to above authorised searches to be conducted at the residences and in the vehicles of each of the four men as well as family residences in Surry Hills and Punchbowl.

Khaled was arrested at his home in Lakemba at 3.53pm on Saturday 29 July 2017 by Federal Agent Seneviratne, the arresting officer, who was accompanied by Detective Kazzi, the corroborating officer. Khaled was told that he was under arrest for acts in preparation for, or planning for, a terrorist act. By that time the JCTT had obtained CCTV footage of Khaled and his brother, Amer, at Sydney airport on 15 July 2017 and was aware that Khaled had received an explosive device from Turkey which they suspected he had intended to place on a passenger airline.

Three other men, including Mahmoud, had also been arrested at about the same time. Khaled was taken to Burwood Police Station. He arrived at 5.20pm. Mahmoud was taken to the Surry Hills Police Station.

Khaled’s evidence on the voir dire was that when he was asked why he had been arrested he was told that the officers knew that he had received an explosive device from Turkey; that there had been a prospect of its being put on a plane; that he and his brother, Amer, had attended Sydney airport on 15 July 2017; and that police had viewed CCTV footage showing their presence at the airport. I do not accept this evidence. For the reasons given below, I accept the evidence of Federal Agent Seneviratne and Detective Kazzi that no such conversation occurred.

Following his arrest, Khaled was searched, as was his car. Items which were regarded as potentially incriminating were found. Various forensic procedures were undertaken. Federal Agent Seneviratne contacted Federal Agent Kennedy, who was in the Major Incident Room (MIR) in the city of Sydney, to let him know what was occurring at Burwood Police Station. This information, together with other information germane to Khaled was collated in a timeline kept as part of Operation Silves.

The timeline recorded that at 8.42pm Federal Agent Seneviratne had advised that Khaled was “willing to talk and has not requested legal advice”. Neither Federal Agent Seneviratne nor Detective Kazzi recalled being party to any such indication. I infer from the entry in the timeline that Khaled had communicated the substance of what was recorded either directly to Federal Agent Seneviratne or to someone at Burwood Police Station who had communicated it him. From the time of Khaled’s arrival at Burwood Police Station at 5.20pm on 29 July 2017, he had come into contact with several people, including police officers who took his fingerprints and performed various other forensic procedures on him and with respect to his clothing and possessions. Federal Agent Seneviratne’s unchallenged evidence was that from 8.24pm until 9.14pm (the period which covered the time of the alleged conversation), Khaled was photographed and subjected to a trace evidence swab conducted by Senior Constable Van der Reyden.

Khaled’s evidence in chief on the voir dire was that, on the evening of 29 July 2017, he told Federal Agent Seneviratne and Detective Kazzi that he had not taken a bomb to the airport at all on 15 July 2017 and that he had only told his brother Tarek that he had taken the bomb “to get him off my back”. Khaled said in his evidence:

In other words, Khaled’s evidence was that Detective Kazzi had instructed him, in a conversation that was not recorded, to say in the recorded interview, contrary to the fact, that he had taken the bomb to the airport, intending to put it in his brother’s luggage which was to be checked in for the Etihad flight, but that when he had seen children at the airport, he had decided not to go through with it. According to Khaled, Detective Kazzi told him that if he said that and told them where the bomb was, he would not be charged and would be able to go home within seven days. Khaled’s evidence was that, because of these promises, he was, in effect, happy to answer all of their questions and be as forthcoming as possible about what he knew and what he had done, not only in relation to the bomb but also with respect to a chemical compound and a further chemical explosive device. I do not accept this evidence.

Khaled said in his evidence on the voir dire that he knew nothing of the criminal justice system and that the only time he had previously been questioned was in about 2015 he had been interviewed by Australian Security Intelligence Organisation (ASIO) about his brother (who was a senior member of ISIS in Syria) and other members of his family and that, at the conclusion of the interview, the ASIO agents had simply thanked him. I do not accept his evidence that as far as he was concerned he was not a suspect but was merely answering questions to assist the police officers in their investigation of others.

In addition to the conversation referred to above, Khaled gave evidence that he had been told on a number of occasions in the course of his first week in custody:

Khaled’s children, Mahmoud and Emma, gave unchallenged evidence that their father had told them, when he spoke with them while he was in detention, that he would be home by Sunday (being just over a week after his arrest on Saturday 29 July 2017).

I also accept the evidence of Federal Agent Seneviratne and Detective Kazzi that no such conversation occurred and that they intended to obtain Khaled’s version of events in a recorded interview on the following day, if he were willing to speak to them, as he had indicated on the evening of 29 July 2017 that he was.

In the evening of 29 July 2017 police began the execution of a search warrant, 315/2017, which had been issued on 27 July 2017, at Khaled’s home in Lakemba. In the course of this search, Senior Constable Pieper found various items in the garage at Lakemba, including a cylinder which he inferred was an explosive charge designed to be coupled with a timer and a battery.

The Custody Management Record in respect of Khaled at Burwood Police Station contained the following entry made, at 9.57pm on 29 July 2017, by Peter Bradbury who was noted as the “Responsible Officer”:

Federal Agent Seneviratne did not recall being aware of this phone call or any subsequent visit by Mr Srour. He remembered there being a reference to a legal practitioner in a recorded interview, which was identified in re-examination as having occurred on 1 August 2017 (see below). Detective Kazzi noted Mr Srour’s name, and mobile number as well as the word “solicitor” and the name of a firm in his hand-written notes of 29 July 2017. Detective Kazzi explained in cross-examination that it is not the practice of police to “advertise” who is in custody. He said that it was a suspect’s right to appoint a solicitor and that a solicitor who has already been instructed by a suspect who was in police custody would be allowed to see that person.

The Custody Management Record noted that at 10.20pm on 29 July 2017 Khaled was in cell 1 “[f]or rest”. There was a further note at 10.24pm that Khaled requested that he be woken at 5.30am “for prayers and medication”.

I accept Mr Srour’s unchallenged evidence that, on the evening of 29 July 2017, he and two of his employed solicitors attended Burwood Police Station at the request of a member of Khaled’s family. I infer from the entry in the Custody Management Record referred to above that the visit occurred after 9.57pm. When they arrived, they were told that they could not speak with Khaled as he was asleep. I consider it to be likely that Mr Srour adopted his usual practice of asking police officers to wake the accused so that he could speak to him. I infer that the police at Burwood declined the request. Mr Srour did not give evidence that he had left a business card with Detective Kazzi.

Detective Kazzi accepted in cross-examination that a solicitor had come to Burwood Police Station and had given him a card which was to be provided to Khaled. I infer that the card was the one that Detective Kazzi gave to Khaled on 1 August 2017 in the course of the recorded interview on that day (see below). The evidence is not sufficient to identify the solicitor who left the card, although it is at least possible that it was Mr Srour.

Khaled’s evidence on the voir dire was to the effect that Detective Kazzi told him that a solicitor had come for him but assured him that, as he was not going to be charged, there was no need to waste his money on a solicitor. For the reasons given below, I do not accept this evidence. It is, in any event, inconsistent with the exchange that occurred in the course of the recorded interview on 1 August 2017 (referred to below) when Detective Kazzi admitted that he told Khaled for the first time that a solicitor had visited him days before. Khaled’s response on 1 August 2017 was not that he had been told that he did not need a solicitor because he had not been charged, but rather that his family was arranging a solicitor for him and that he would see the solicitor whom his family had arranged when he (the solicitor) arrived.

At 9.58pm on 29 July 2017 Detective Kennedy applied, pursuant to s 23DE of the Crimes Act, for an extension of the period of investigation in respect of Khaled for a period of 20 hours. Detective Kennedy’s reasons, as set out in the application, noted that it was necessary to enable police to “preserve and obtain evidence” including by execution of search warrants. Detective Kennedy also referred in his application to the possibility that other, as yet unidentified, people might be involved in terrorist acts. He said, in the application, that it was necessary to detain Khaled to ensure that the further inquiries take place “without the possibility of interference” by Khaled. As at that date, searches had already commenced and specialist teams were involved in examining seized items.

Federal Agent Kennedy also said, in this statement in support of the application:

In cross-examination, Federal Agent Kennedy explained that it was:

When asked in cross-examination by Mr Pontello whether the main reason the decision was made to detain Khaled was to give investigating officials the maximum opportunity to question him, Federal Agent Kennedy said that it was not. He said:

I also note the unchallenged evidence of Federal Agent Foster that it took seven days to complete the search of Khaled’s premises. He said:

At 11.04pm Federal Agent Seneviratne spoke with Khaled (who had been in his cell “for rest” since at least 10.20pm) about the application for an extension of the investigation period and told him that he could make representations to the magistrate about the application. Khaled declined to do so.

At 11.37pm on 29 July 2017 the Chief Magistrate issued an instrument which purported to extend the investigation period (the 29 July 2017 Instrument). The instrument contained the following (of which those entries in handwriting are highlighted in bold):

The Chief Magistrate wrote by hand the time of 11.37pm beneath his signature at the foot of the instrument.

Federal Agent Seneviratne denied that any conversations of an investigative nature were conducted otherwise than in the course of recorded interviews, before Khaled was charged. As referred to above, I accept that on 29 July 2017 Khaled indicated to someone at Burwood Police Station that he was willing to talk and had not asked to speak to a lawyer. I do not regard this conversation as being of an “investigative nature”. In any event, it appears to have been initiated by Khaled himself.

Federal Agent Seneviratne confirmed that the protocol which was used for such interviews was the Australian Federal Police (AFP) pro forma as it was an AFP-led investigation. I accept his evidence that the AFP pro forma did not include an arrangement or requirement that someone unconnected with the investigation go and speak to the accused in the interview room. Although the protocol included a question about whether a promise had been made or inducement given, the protocol provided that this was to be done at the conclusion of all the questioning of the suspect.

On 30 July 2017 Khaled participated in recorded interviews between 10.11am and 11.17am; 1.29pm and 2.55pm; 3.28pm and 3.52pm, 3.58pm and 4.51pm and 6.56pm and 8.48pm. The interviews were conducted by Federal Agent Seneviratne, who had been assigned the roles of information co-ordinator, arresting officer and interviewing officer, and Detective Kazzi (an officer of the NSW Police Force) who was the corroborating officer.

The transcript recorded that, at the commencement of the first interview at 10.11am, Federal Agent Seneviratne gave the usual cautions about Khaled not having to say or do anything but that anything he said or did could be used in evidence against him. Khaled was asked to put the effect of the caution in his own words and, in the course of so doing, acknowledged that what he said could be used in evidence against him. He said:

Khaled was also told that he could speak to a friend or relative to inform them of his whereabouts. At this point he indicated that he wanted to speak with his wife. Before the interview was suspended to allow this to occur, Khaled was also asked whether he wanted to speak with a legal practitioner, to which he responded, “Not now.”

The transcript recorded that the interview was suspended at 10.15am until 10.26am to permit Khaled to speak with his wife. When the interview was resumed, Khaled was given the same cautions again. Federal Agent Seneviratne also indicated that he proposed to ask some things “because this is the first time we’ve spoken”. The content of the interview is inconsistent with the topics having been previously discussed in a non-recorded discussion as alleged by Khaled.

The transcript recorded that the interview was suspended at 11.17am for Khaled to use the toilet. As referred to below, it was not resumed until 1.29pm.

When Khaled was cross-examined about having agreed that he would not be forced to say anything he did not want to say, he said:

I regard this exchange as an indication that Khaled was acutely aware of the ramifications for him of his evidence on the voir dire. He adjudged the harm that could be done to him by answering one way or another and assessed what would be in his interests at the time. This approach led to several inconsistencies in his evidence which are referred to in more detail below.

According to the Custody Management Record for 30 July 2017, Khaled was in his cell at about 12.58pm. A subsequent entry noted that he was in ERISP Room 1 at 1.15pm.

An entry at 1.28pm on 30 July 2017 recorded that the ERISP machine in room 2 was “not operating”. The “responsible officer” who made the note was identified as “Simon Moore”. He was also the responsible officer for the earlier note at 1.15pm.

According to Khaled, he had been asked at about 1.28pm in the course of a recorded interview whether anyone had made a promise to him and he had answered “yes”. Khaled’s evidence was that Detective Kazzi immediately removed the disc from the machine, broke it and put it in the bin and the two officers (Federal Agent Seneviratne and Detective Kazzi) started laughing and said, “Don’t mention that.” According to Khaled, this was the reason that they had to change rooms. Khaled’s evidence is reflected in the passage below (although it also appears elsewhere in the transcript):

This version was denied by Federal Agent Seneviratne and Detective Kazzi. I do not accept Khaled’s evidence, which I regard as a fabrication designed to create the impression that the police were guilty of misconduct in order to support Khaled’s allegation that they had made promises to him before the recorded interviews commenced.

It is of some importance that the entries in the Custody Management Record are not, for reasons which do not appear from the evidence, arranged in chronological order by date. Rather, they are arranged in time order, irrespective of the date to which the entry relates. This means that the entry for 1.28pm on 30 July 2017 appears immediately above the entry for 1.29pm on 31 July 2017. A reader who is not alive to the somewhat obtuse method of ordering the entries could be misled into thinking that the two entries were related and that once it had been discovered at 1.28pm that the ERISP machine was not working, Khaled was moved into another room at 1.29pm. This was the hypothesis which Mr Pontello (on Khaled’s instructions) put to, Federal Agent Seneviratne (which he denied). That the entries relate to consecutive days, rather than the same day is also supported by the identity of the “responsible officer”. Simon Moore is the responsible officer for the entries on 30 July 2017 at 1.15pm, 1.28pm and 1.45pm. On 31 July 2017, Kenneth Hayes is the responsible officer for entries at 1.29pm, 1.40pm and 1.50pm. Thus, the apparently sequential entries for 1.28pm and 1.29pm cannot provide any objective support for Khaled’s evidence that the officers broke the discs at around this time because he revealed in the course of the recorded interview that a promise had been made to him.

Further there is no indication in the transcript of the recorded interviews that there was any change of tape at or around 1.28pm. This occurred later in the afternoon, at 3.52pm (see below).

I regard Khaled’s evidence on this topic as an attempt to tailor his evidence to other objective evidence, the effect of which he, in this instance, misunderstood.

The transcript of the recorded interview on 30 July 2017 noted that the interview was suspended at 11.17am and resumed at 1.29pm. Following the suspension the officers reiterated the usual cautions about Khaled not having to say or do anything but that anything he said or did could be used in evidence against him. The transcript recorded that the interview was again suspended at 2.55pm, following Khaled’s request for a break.

It appears that, during the break, Federal Agent Seneviratne updated the Operation Silves timeline. The entry made at 3.19pm purported to summarise the substance of what Khaled had already told the interviewing officers (Federal Agent Seneviratne and Detective Kazzi) as follows:

Federal Agent Kennedy explained that “free recall” was a term used to describe a version given by a suspect in a general narrative rather than by way of answers to specific questions.

It was put to Federal Agent Kennedy in cross-examination that he was satisfied, when he recorded the entry for 3.19pm on the timeline, that Khaled had in fact committed the offence for which he was arrested. He answered in the negative and explained that, although Khaled had made admissions, he did not know whether Khaled had been acting alone or whether other devices were involved. Federal Agent Kennedy explained his understanding that one of the purposes of extending an investigation was to allow police time to question a suspect about items that had been seized following the suspect’s arrest.

Although Federal Agent Kennedy accepted that the investigation would probably not have been prejudiced if Khaled had been charged on 30 July 2017 at about 4pm, I gained the impression that this acknowledgement was borne of hindsight and did not reflect his thinking at the time.

When Federal Agent Woods was asked about the entry on the timeline at 3.19pm on 30 July 2017, he agreed that he was personally satisfied that Khaled had committed the offence for which he had been arrested. However, he said that it would have been unreasonable to charge Khaled on the afternoon of 30 July 2017 because the investigation was incomplete. Federal Agent Woods, the SIO, explained that further opportunities for searching became apparent after Khaled’s arrest. He, too, said that he regarded Khaled’s statement that he was acting alone as a false claim, which needed to be investigated. Federal Agent Woods’ view was that charging Khaled would effectively have concluded the opportunity to interview him. He did not, however, suggest that the investigation would have been prejudiced had Khaled been charged and brought before a judicial officer on 30 or 31 July 2017.

The transcript noted that the recorded interview resumed at 3.28pm at which time Khaled was again given the usual cautions. Khaled was recorded as having acknowledged that during the break they had “general conversation” and had not discussed anything in relation to the interview.

Following the resumption of the interview, Khaled made a number of further significant admissions, including the following: that the same technique had been used to bring down a plane in Egypt (page 113); that he had taken the bomb to the airport but had changed his mind when he arrived there (page 119). During the course of the interview session which had begun at 3.28pm Detective Kazzi announced that the machine had indicated “Five minutes until disc full”. As a consequence, the interview was suspended at 3.52pm for the tapes to be changed. The interview resumed again at 3.58pm at which point the usual cautions were given again.

Following the resumption of the interview, Khaled admitted that he had bought one of the timers on the internet (page 130) and another at a store in Bankstown and used them to set up the bomb. He made admissions about how he had connected the parts of the bomb with the timer (pages 143-148); that he had connected the battery (page 152); and that he set the timer (page 159). The interview was suspended at 4.51pm.

The Operation Silves timeline recorded an entry for 4.07pm which read:

At the resumption of the interview Federal Agent Seneviratne again gave Khaled the usual cautions. Khaled acknowledged that they had not discussed anything relating to the interview during the suspended period.

Khaled continued to make admissions, including that he knew that the device was a bomb (page 177); and that he knew that it would have exploded (page 178).

In this interview session, while Khaled was making admissions about where he expected the airline to be when the bomb went off, he said, at A2741 (page 200):

I regard this statement by Khaled to Federal Agent Seneviratne and Detective Kazzi as amounting to an acknowledgement by Khaled that he knew that he had committed a crime for which he would be punished but that he was hopeful that he would obtain some benefit or discount because he had given so much information to police and had not, in the end, allowed the bomb to be planted on the plane. This was, in my view, entirely inconsistent with his contention on the voir dire that Federal Agent Seneviratne and Detective Kazzi had promised him that, if he answered their questions, he would not be charged. His reference to “guilt” can only be a reference to guilt of an offence for which he would be charged. His statement in the record of interview set out above was also inconsistent with the following evidence in Khaled’s cross-examination on the voir dire:

Shortly after this statement, Khaled began talking about a new topic in the recorded interview, which he prefaced with the following:

At this point in the recorded interview, Khaled admitted that his brother Tarek and another man had instructed him how to make chemical weapons and that he had burned aluminium and sulphur to make the ingredients for an explosive device, which Khaled told the officers he regarded as being more dangerous than the bomb. Khaled also admitted that they had sent him videos instructing him how to make such weapons. After further questioning on these topics, in answer Q3024, Khaled said in response to a question about the chemical ingredients:

This was a reference to a piece of paper which was in Khaled’s wallet which was seized when he was searched following his arrest. This topic was raised by Khaled and not by the police officers. It went far beyond the topic of the bomb which Khaled contended was covered by the “promise” made to him by the police officers. That he was prepared to divulge new information to the police of which, as far as he was concerned, they were unaware, is a powerful indication that he was endeavouring to put himself in the best light by disclosing what he knew. The questioning continued until 8.48pm on 30 July 2017, at which point the interview was suspended until the following morning. Federal Agent Seneviratne indicated that they would put new tapes in the following morning as the tape was “about to be full” (Q3588).

At about 6.06pm on 30 July 2017, Federal Agent Seneviratne told Khaled that “an application for a specified time” (under s 23DC of the Crimes Act) would be made. He told Khaled that he could make representations to the magistrate but Khaled declined to do so.

At 7.08pm on Sunday 30 July 2017 Federal Agent Kennedy applied to the Chief Magistrate for a period of 168 hours (7 days) to be specified pursuant to s 23DD(2) of the Crimes Act. In support of the application Federal Agent Kennedy made a statement which included the following:

At 7.52pm on 30 July 2017 the Chief Magistrate signed the instrument (the 30 July 2017 Instrument), which included the following paragraphs:

The Custody Management Record noted at 11.52am on 31 July 2017 that Birchgrove Legal may contact Khaled and that Moustafa Kheir was the solicitor.

On 31 July 2017 Khaled participated in a recorded interview between 1.34pm and 3.12pm. At the commencement of the interview, Federal Agent Seneviratne gave the usual cautions again and Khaled acknowledged that he understood that what he said could be used in court against him. Federal Agent Seneviratne also told Khaled that he could speak to a friend or relative if he wished. At this point (following Q3625) Khaled indicated that he wished to speak with his wife. Before the interview was suspended for Khaled to speak to his wife, Federal Agent Seneviratne also informed him of his right to communicate with a legal practitioner of his choice to be present during questioning. At this point, Khaled told the officers that his wife had already spoken with a solicitor. When they asked him whether he wanted to speak with a lawyer when he had spoken with his wife, he said: “Ah, my solicitor, I don’t know him yet . . . When he comes, I speak to him.”

The interview was suspended at 1.40pm to allow Khaled to speak with his wife. After the interview resumed at 1.58pm, Khaled was again cautioned and specifically asked (at Q3658) whether he wished to communicate with a legal practitioner “right now”, to which he answered, “Not right now. When, when they get me one.” The interview was suspended at 3.12pm.

At 4pm on 31 July 2017, Mr Kheir rang the Burwood Police Station and asked to speak with Khaled. The Custody Management Record noted that the message was passed onto AFP officers to liaise with the Officer-in-Charge (OIC) regarding the request.

On 1 August 2017 Khaled participated in recorded interviews between 9am and 10.41am and 3.27pm and 4.57pm.

At the commencement of the interview at 9am on 1 August 2017, the usual cautions were given and Khaled was asked whether he wanted to speak with a friend or relative. He confirmed that he had told them before the interview began that he had wanted to speak with his wife and they had allowed him to try to contact her but she was unavailable. Khaled confirmed that he was happy to continue with the interview and try her later. He was also asked whether he wanted to communicate with a legal practitioner, to which he responded:

The following exchange then took place between Federal Agent Seneviratne and Khaled:

Detective Kazzi then told Khaled that he had been given a card either the previous day or the day before by a solicitor. Although it is possible that the card was Mr Srour’s, the evidence is not sufficient to determine whether it was. Khaled asked the officers if they wanted him to call his family to find out if the solicitor whose name was on the card was the one the family had arranged or whether it was someone else. After some further discussion on the topic, at 9.07am the interview was suspended to arrange for Khaled to speak to his wife. The interview resumed at 9.16am, at which point Khaled told the police officers that his wife had not known the name of the solicitor but had told him that the first name of the solicitor who was going to visit him was “Mustafa”. Khaled confirmed that he was happy to continue with the interview. The cautions were then repeated as well as the statement of rights. At Q128, Federal Agent Seneviratne said:

The interview was suspended at 10.41am for the purposes of a break.

Khaled’s evidence about the exchange regarding the solicitor on 1 August 2017 was that he said to Detective Kazzi when he found out that a solicitor had visited him a few days earlier, “I said to him, ‘But you didn't tell me I got solicitor two days ago. Why you didn't tell me I got solicitor?’”. This evidence is inconsistent with his earlier evidence that he had been told on the first evening that a solicitor had visited him but that he had not bothered to see him because the police had advised him that it would be a waste of money to have a solicitor because he was not going to be charged. It is also inconsistent with Detective Kazzi’s evidence that he did tell Khaled on 29 July 2017 that a solicitor had come to see him.

The recorded interview resumed at 3.27pm at which time the usual cautions were given. Various photographs and pictures of items that had been found in the course of the searches of Khaled’s home, garage and car were shown to Khaled and he was asked to identify what was depicted.

According to Federal Agent Seneviratne, the interview was suspended at 4.57pm because Khaled wanted a break. Following the break, Khaled indicated that he did not want to participate further in the interview as he had received legal advice. Federal Agent Seneviratne said in cross-examination that this was why Khaled was not asked at the end of the interview whether he had any complaints or whether any promise, threat or offer of advantage had been held out to him.

Detective Kazzi, who was an officer with the NSW Police Force, confirmed that no one had ever asked Khaled at the conclusion of the interviews whether any threat, promise or offer of advantage had been held out to him.

According to the Custody Management Record, at 8.05pm on 1 August 2017 Mr Kheir telephoned Burwood Police Station and asked to speak to Khaled. The person who took the message noted:

The Custody Management Record noted at 8.15pm on 1 August 2017 that a call was made from Burwood Police Station to Detective Breakbook, who was in MIR. Detective Breakbook consulted other Federal Agents who authorised Mr Kheir to speak with Khaled.

The Custody Management Record noted at 8.15pm on 1 August 2017:

The Custody Management record noted that the telephone conversation between Khaled and Mr Kheir lasted from 8.30pm until 8.38pm.

On 2 August 2017, at about 2.30pm, Khaled formally nominated Moustafa Kheir as his legal representative. On 2 August 2017, Mr Del Monte, an employed solicitor at Birchgrove Legal, attended Burwood Police Station and spoke with Khaled. According to the Custody Management Record, he stayed for an hour from 9.42am until 10.42am. When Mr Del Monte asked Khaled whether he had been interviewed he was told that he had been interviewed a few times. Mr Del Monte asked Khaled to ask for copies of the discs. This request was denied on the basis that they did not have copies but an officer said that they would obtain a copy for him.

At about 4.55pm on 3 August 2017 Khaled was charged. At about 7.20pm he was taken from Burwood Police Station to the New South Wales Police Force Sydney Police Centre.

Khaled appeared via audio-visual link (AVL) at Parramatta Local Court on 4 August 2017.

Federal Agent Seneviratne and Detective Sergeant Hallett spoke to Khaled at the Silverwater Correctional Centre on 18 August 2017. The conversation was audio-recorded. The transcript of the recording was admitted into evidence on the voir dire without objection. When Khaled was cross-examined about the transcript he was adamant that it was incorrect in several respects. For example, he said that Federal Agent Seneviratne did not ask him questions on that occasion and had told Khaled that “his [Federal Agent Seneviratne’s] boss [is] going to see you” although the transcript records that Federal Agent Seneviratne was the officer who was asking most of the questions.

In the course of the discussion on 18 August 2017, Khaled alleged that he had not known what his charges were “until now” and said that the person at Burwood Station “didn’t talk to me”. At A334, Khaled said, “Actually like I told you I was shocked when I got charged.” He then said:

On 15 September 2017, Federal Agents Seneviratne and Dickson went to the Silverwater Correctional Centre to speak to Khaled who was still in custody there. Federal Agent Seneviratne intended that their conversation be audio-recorded with a hand-held digital recorder. However, Khaled told him that he did not want the conversation to be recorded as a consequence of which the recording was turned off.

As far as Federal Agent Seneviratne was concerned, the purpose of the conversation on 15 September 2017 was to put further questions to Khaled to obtain further information relating to the improvised explosive device (IED), and its location, as police were concerned about the risk to the community. Federal Agent Dickson confirmed in his evidence that police were hoping to locate the welding machine that had been sent from Turkey to Australia which allegedly contained the IED and was subsequently discarded in the rubbish. Federal Agent Seneviratne accepted in cross-examination that what Khaled had done with the welder packaging in which the bomb had entered Australia was of concern to him.

Federal Agent Dickson made notes of the conversation (Ex 1D1- VD). Mr Dickson noted on the first page of his five-page note that Khaled said that he was “shocked he won’t be going home”. This was relied on by Mr Pontello as corroborating Khaled’s evidence that he had been given a promise that he would be able to go home in seven days.

Khaled wrote on a piece of paper, which was dated 15 September 2017:

According to Federal Agent Seneviratne, Khaled wrote this note at the end of the conversation. Both Federal Agents Seneviratne and Dickson signed Khaled’s document to indicate that it had been produced at the time of their conversation. Khaled also said that he had not written the note himself but that it had been dictated to him by Federal Agent Seneviratne. Mr Kazzi’s evidence was that Federal Agent Seneviratne had asked Khaled to write the note. I accept that the note was written at Federal Agent Seneviratne’s suggestion but I do not accept that he dictated the note. I infer that Federal Agent Seneviratne suggested that Khaled write the note, which all three present signed, in order that the matter would be appropriately recorded.

Both Federal Agents Seneviratne and Dickson accepted that none of the information gathered on 15 September 2017 was to be used as evidence against Khaled or anybody else.

In order to determine the Inducement Ground, it is necessary to make findings about what actually occurred in light of the conflict between the evidence of Khaled on the one hand and, principally, Federal Agents Seneviratne and Kazzi on the other.

As the plurality (Gleeson CJ, Gummow and Kirby JJ) said in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; at [31], the best guide to determining disputed facts is to do so "...on the basis of contemporary materials, objectively established facts and the apparent logic of events."

The objective circumstances included the following:

The internal consistency of a witness’s evidence also provides some guide to credibility. There was a number of inconsistencies in Khaled’s evidence. For example, his evidence that he, in effect, reprimanded Detective Kazzi on 1 August 2017 for not letting him know that a solicitor (Mr Srour) had visited him on 29 July 2017 was entirely inconsistent with his evidence that Detective Kazzi had told him on 29 July 2017 that a solicitor had come to see him but advised him that he did not need a solicitor because he would not be charged. Further, there was no explanation for his wanting to see a solicitor (Mr Kheir) when his family arranged for one for him if his true belief was that he would not be charged

Any belief on Khaled’s part that he would not be charged was entirely inconsistent with the answer in the record of interview in which he acknowledged his guilt but indicated that he hoped that he would obtain a benefit from the court for the assistance he had given in providing such a comprehensive account. It is also inconsistent with his admission in the recorded discussion on 18 August 2017 that he “thought he might get charged”. The three officers who were present when he was charged, Federal Agent Seneviratne, Detective Kazzi and Federal Agent Foster (who was not called), were not cross-examined about the charging process which took place at about 4.55pm on 3 August 2017. Khaled did not give evidence of being shocked at the time he was actually charged. When it was put to Khaled that he was charged at the Burwood Police Station, he said that he did not know that he had been charged. While I can accept a level of ignorance before Khaled consulted a solicitor, I do not accept that he did not appreciate that he had been charged at that time, particularly as Mr Kheir had been giving him advice from 1 August 2017, which was before he was charged.

Khaled’s evidence that he had not even gone to the airport and that he had admitted that he had gone to the airport only because he had been promised that he would not be charged was inconsistent with his evidence that he knew that the police had seen CCTV footage of him at the airport with Amer on 15 July 2017. It was also inconsistent with his evidence that he was “happy” to tell the truth because he knew that he would not be charged. His evidence of his preparedness to “tell all” (including that he had assembled the bomb and taken it to the airport on 15 July 2017 but decided, for whatever reason, to bring it home) cannot be reconciled with his evidence that he told a self-incriminatory lie (that he had taken the bomb to the airport) when he, on one of his versions, had not even been to the airport that day.

That Khaled was, on his own account, prepared to declare, in the course of a recorded interview that he had, in fact, been given a promise (which, on his version, led to the discs being taken out of the machine, broken and discarded) is inconsistent with other evidence that he was prepared to say whatever the police wanted him to because they had promised him that he would not be charged.

Khaled’s recollection, while apparently definite, was flawed and unreliable. He denied that Federal Agent Seneviratne had participated in the discussion on 15 September 2017 when the transcript which was admitted without objection showed that Federal Agent Seneviratne had asked most of the questions.

Khaled’s indication on 15 September 2017 that he was “shocked” that he was not going home is inconsistent with his admission in the recorded discussion on 18 August 2017 that, although he thought he might get charged, he only thought he might get bail, at least from the police, having regard to the extent of the information he had voluntarily divulged. By the time of the discussion on 15 September 2017, Khaled had been charged, refused bail and had a lawyer acting for him since 1 August 2017. In these circumstances, I do not accept that any “shock” that he was not going home was other than feigned.

Mr Pontello sought to make much of the distinction in the evidence of Federal Agent Seneviratne and Detective Kazzi between instances where they did not recall particular things being said and when they specifically denied that certain things occurred. My impression from seeing and hearing the two officers give evidence was that they tended to say “I don’t recall” in the earlier stages of their cross-examinations but, as the propositions put by Mr Pontello on instructions from Khaled became, from their point of view, more preposterous, they expressed their confidence that certain things had not occurred in express denials.

I am not persuaded that Khaled actually believed that he would be released within seven days. He may well have understood, as a result of being told about the application for a specified time provision under s 23DD, that he might remain at Burwood Police Station for a period of up to seven days. However, if this were the genesis of his belief, it could not plausibly have been engendered before he was informed of the application at 6.06pm on 30 July 2017. He may well have believed that there was a real prospect that he would be granted bail following that period. Alternatively, he may have realised that he would probably be in custody until his trial and simply wanted to placate family members with a (false) assurance that his time in custody would be relatively short. Another possibility is that he did not want his children to appreciate the gravity of his admitted conduct and had sought to allay their fears by giving them an entirely unrealistic prediction of when he would be unlikely to return home.

For the reasons given above, I am not satisfied that the admissions made by Khaled in the course of the recorded interviews were made as a result of any promise or inducement by police. I reject Khaled’s evidence to that effect and accept the evidence of Federal Agent Seneviratne and Detective Kazzi.

Mr Pontello relied on s 85 whether or not I considered that any threat, promise or inducement had been made to Khaled. As s 85(1) of the Evidence Act applies, the recorded interviews are not admissible unless the circumstances in which the admissions were made were such as to make it unlikely that the truth of the admission was adversely affected.

I accept that Khaled was, at the time of the recorded interviews, unfamiliar with the criminal justice system. However, I do not accept that he could have been under any misapprehension that there was any relevant similarity between ASIO’s questioning of him in 2015 and the interviews conducted at Burwood Police Station on 30 and 31 July and 1 August 2017. In the latter instance, he had been arrested and was kept in custody; the interviews were recorded; he was repeatedly cautioned and informed of his rights; he availed himself of his rights from time to time, taking advantage of the opportunity provided to him to ring his wife, on occasions and specifically refusing the opportunity to contact a solicitor or defer the interview until he had legal advice.

Although Khaled’s English was not flawless, he demonstrated a heightened capacity to express himself and to draw distinctions, such as the distinction between “force” and “promise”. I did not discern any particular difference between the language he used in the recorded interviews and the language he used in the witness box. On occasions during the recorded interviews he said that he knew only the Arabic word rather than the English word for a particular noun but this was rare and tended to be confined to particular chemical compounds.

The nature of the questioning was particularly open, which reflected, in part, the police officers’ desire to find out what Khaled wanted to tell them. The initial report to the Operation Silves timeline described the interview on 30 July 2017 as being in the “free recall phase”. This term “free recall” was apt to describe much of the content of the recorded interviews. Khaled was both voluble and discursive. The officers did little to control or direct him, except on occasions, such as when they wanted to finish the topic of the bomb before moving to the new topic of the chemical weapon which had been raised by Khaled without any prior prompting by the officers. The transcripts of the recorded interviews indicated that whenever Khaled wanted a break, for whatever reason, the interview was suspended.

It may be that, for the reasons given above, Khaled thought that there was a prospect would be released within seven days, either on bail or for some other reason unrelated to any conduct by police. An incorrect assumption, however engendered and however erroneous, may, in some cases, be relevant to the question raised by s 85 of the Evidence Act: Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 at [56] (Gleeson CJ and Heydon J). Even accepting, contrary to my findings above, that Khaled actually believed that he would be released within seven days, I do not consider that this factor adversely affected the truth of his admissions.

I am satisfied that the circumstances in which the admissions in the recorded interviews were made were such as to make it unlikely that the truth of the admissions was adversely affected. Accordingly, s 85 of the Evidence Act does not prevent the admission of the recorded interviews into evidence. Nor do I discern any unfairness such as would incline me to refuse to admit the recorded interviews in the exercise of my discretion under s 90 of the Evidence Act. Because of my findings that there was no impropriety or contravention of Australian law in the recorded interviews, it is not necessary to address s 138 of the Evidence Act.

Mr Pontello accepted that each of the three statutory requirements in s 23DF(3) had been met. He submitted that what was lacking was the actual decision to extend the investigation period and that this was required by s 23DF(2). Mr Pontello accepted that the decision of the magistrate was, in effect, an administrative decision and that, accordingly, no order, as such was required, but that it was imperative that the magistrate actually grant an extension in terms. Mr Pontello contended that what was omitted from paragraph 6 of the draft instrument was essential to its validity.

The Crown submitted that the magistrate was, relevantly, a persona designata, who had been nominated as being the decision maker for the purposes of s 23DF. The Crown contended that it was not necessary that the magistrate do more than was required by s 23DF(5). The Crown also submitted that the circumstance that the space in paragraph 6 for the number of hours was not filled in did not mean that it ought be disregarded since it was, in any event, clear that the Magistrate had actually decided to grant the extension.

It was common ground that there was no prescribed form for the instrument which the magistrate signed. Accordingly, there was no express statutory requirement for a statement in the precise terms of paragraph 6. Thus, the present case is to be distinguished from cases, such as Cassaniti v Croucher (2000) 48 NSWLR 623; [2000] NSWCA 95, where the statutory authority for the issue of a warrant expressly required that an application or instrument be “in the form prescribed” and an applicant or judicial officer has failed to comply with the prescribed form. In such cases, the assistance afforded by s 80 of the Interpretation Act 1987 (NSW) (which requires substantial compliance, rather than strict compliance) has been found to be insufficient to save an instrument which does not comply with the statutory mandate from invalidity.

The question that arises is whether the instrument complies with s 23DF. I am satisfied that it does. I regard s 23DF(2) as being a conferral of power to grant an extension. The power to grant the extension is conditioned by three requirements: first, that the extension must be “by signed written instrument” (s 23DF(2)); second, that the magistrate must be satisfied of each of the matters in s 23DF(2)(a)-(e); and third, that the instrument must set out the three matters provided for in s 23DF(3). I am satisfied that each of these three requirements has been met.

For present purposes, I do not accept that there is an analogy between the exercise of this administrative power and the exercise of judicial power, which requires an order to be made. While a judicial officer exercises judicial power by making orders, for which reasons are required to be given, a judicial officer who is, as the magistrate was in the present case, exercising administrative power, need only decide to exercise a power or not, as the case may be, and fulfil whatever statutory requirements apply to such exercise of power. I regard an extension under s 23DF(2) as being a step in an administrative process and therefore an administrative function and not a judicial order. In this respect the instrument is similar to a warrant: see Ousley v The Queen (1997) 192 CLR 69 at 87 (Gaudron J) and 124 (Gummow J); [1997] HCA 49. In these circumstances, the statutory requirements were met without a statement to the effect of paragraph 6 of the draft instrument.

For these reasons, I am not satisfied that the Instrument Ground has been made out.

In case I am found to be wrong in my conclusion that the instrument complies with the Act, I propose to consider the discretion under s 138 of the Evidence Act on the footing that a paragraph in terms of paragraph 6 of the draft instrument was required as a matter of law to indicate that the magistrate had exercised the power under s 23DF of the Crimes Act.

The matters relevant to the discretion under s 138 of the Evidence Act are as follows. It was common ground that the evidence in the recorded interviews was highly probative of Khaled’s guilt. Without the recorded interviews, the Crown case against Khaled would be purely circumstantial. I do not apprehend that the circumstantial evidence would not be sufficient without the recorded interviews, but the admissions Khaled made in the recorded interviews plainly add to the strength of the Crown case. The relevant offence is one which carries a maximum penalty of life imprisonment. In the present case the act of planning relied upon was the planting of a bomb in luggage which was to be carried on a passenger airline. If established, the offence would be an objectively serious example of that offence. The (assumed) impropriety of contravention was apparently the product of accidental oversight in an otherwise carefully filled in form.

Arguably, the contravention was contrary to Khaled’s rights under the International Covenant on Civil and Political Rights since if the contravention made the instrument invalid, the continued detention of Khaled was unlawful since he had a right under Article 9(3) to be promptly taken before a judicial officer following his arrest and detention for the period of 4 hours provided for in s 23DB(5)(b). Having regard to the nature of the contravention, it would be highly unlikely that any action would be taken in relation to the contravention. There would be no difficulty in obtaining the evidence without contravention of Australian law.

In these circumstances I am satisfied that, if the instrument involved a contravention, the desirability of admitting the recorded interviews outweighs the undesirability of admitting evidence that has been obtained in the way that it was obtained.

As referred to above, the Investigation Period Ground is an alternative ground to the Instrument Ground and presupposes the validity of the 29 July 2017 Instrument.

Mr Pontello relied on s 23DB(5) to submit that an investigation period begins when a person is arrested and ends “at a later time that is reasonable, having regard to all the circumstances.” He submitted that the effect of s 23DB(5) was that the investigation period ended after a reasonable time, even if it had been extended by the magistrate pursuant to s 23DF and even if an instrument had been signed pursuant to s 23DD to allow for time to be disregarded. He contended that once that period had ended (because a reasonable time for the investigation had passed), the person in detention had a right to be released or brought before a judicial officer “as soon as practicable”. He relied on s 23DB(12) to support the submission that the onus on the Crown to prove that the person was brought before a judicial officer as soon as practicable required the Crown to prove that the investigation period, and therefore the period during which the person was detained, was reasonable. Mr Pontello relied on Federal Agent Woods’ agreement with the proposition that just because an application for specified time under s 23DD has been granted, the investigating authority “does not have carte blanche to use the entire period of time no matter what”.

The Crown submitted that the construction for which Mr Pontello contended failed to have regard to the two statutory riders contained in s 23DB(5) that the sub-section was “subject to . . . (9)” and operated “unless the period is extended under s 23DF”. The Crown argued that the effect of the rider, “unless the period is extended under s 23DF”, was that, once a magistrate had exercised the power in s 23DF to extend the period, the investigation period ended at the expiry of the extended period or the charging of the suspect, whichever was the sooner. The Crown argued that the effect of the rider “subject to . . . (9)” was that once an instrument had been made under s 23DD specifying time during which suspension or delay of questioning may be disregarded, the investigation period continued for the period of the suspension plus any extension under s 23DF.

The Crown submitted that, in these circumstances, this Court has no jurisdiction to adjudicate on the reasonableness or otherwise of the investigation period and relied, by analogy, on the decisions which establish that a collateral attack on a warrant otherwise than as to its validity is prohibited: see Ousley v The Queen at 80 (Toohey J); 87 (Gaudron J); 124-7 (Gummow J) and Gould v DPP (Cth) [2018] NSWCCA 109 at [52] (Basten JA, Johnson and Adamson JJ agreeing).

The matters raised by Mr Pontello give rise to important questions of statutory construction. Although there is much to be said for the Crown’s submission, the principles of legality require particular clarity of expression where the fundamental right to liberty is concerned: see Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 at [19]-[20] (Gleeson CJ). Further, because the course of the investigation cannot be predicted with any degree of certainty, the magistrate’s instruments have a prospective element. Thus although the requirement for a magistrate to extend the period for the purposes of s 23DF or specify a period for the purposes of s 23DD, imports a degree of independent oversight into these matters, if the Crown’s construction were correct, there would be little oversight into a choice by the investigating authority to keep a suspect in detention for the whole of the authorised investigation period, which could be a period of several days (being the 4 hours allowed in s 23DB(5); the maximum extension of 20 hours under s 23DF(7); and any further time specified time by a magistrate under s 23DD).

It is not necessary to decide this question in the present case since, even if the construction for which Mr Pontello contended is correct, I am satisfied, on the basis of the evidence of Federal Agents Woods and Kennedy, that the investigation period, being the time between Khaled’s arrest on 29 July 2017 and his being charged on 3 August 2017 was reasonable in all the circumstances. I note that Mr Pontello did not challenge the period between Khaled’s arrest and his being brought before a judicial officer via AVL on 4 August 2017.

I have taken into account in this assessment that in ascertaining any period of time for the purposes of s 23DB, the number and complexity of matters being investigated is a mandatory relevant consideration: s 23DB(6). The evidence of Federal Agents Woods and Kennedy, which I have summarised above, is to the effect that the investigation extended to a number of suspects and involved searches being undertaken of several residences and vehicles. Of particular importance was the search of Khaled’s garage, which he had identified as the place where the bomb was stored. The evidence revealed that this search was particularly time-consuming having regard to the need for safety and care in carrying it out.

For the reasons given above, I made a ruling on 14 March 2019 that the recorded interviews of Khaled Khayat would be admitted into evidence.