R v Khalid (No. 2)

1. [1]

   Sulayman Khalid (“the accused”) has pleaded not guilty to an indictment alleging an offence contrary to s 101.4 of the Criminal Code 1995 (Cth) (“the Code”) in the following terms:

2. [2]

   By notice of motion filed on 14 October 2015 the accused seeks the following orders:

   1. (1)

      A declaration that two search warrants issued on 18 December 2014 are each invalid.

   2. (2)

      An order excluding the entirety of the evidence obtained pursuant to the execution of each of those warrants.

   3. (3)

      An order excluding evidence of what is referred to as the “SBS Insight episode” relied upon by the Crown.

   4. (4)

      An order excluding the admission of “YouTube” footage relied upon by the Crown.

THE CROWN CASE

1. [3]

   By reference to a statement of facts tendered by the Crown (without objection) on the present application, the Crown case may be summarised as follows.

2. [4]

   “Operation Appleby” was an investigation into a group of people suspected of being involved in terrorist activities in Australia. A number of members of the group, including the accused, were the subject of physical and electronic surveillance over a lengthy period of time which commenced in about June 2014.

3. [5]

   Between about June 2014 and December 2014 the accused was seen to be in regular contact with Issac Majzoub (“Majzoub”). A large number of telephone calls and text messages between the accused and Majzoub were intercepted, during which they repeatedly discussed achieving martyrdom. Some of their communications were coded, however the Crown seeks to infer that their discussions centred around the commission of terrorist acts, either in Syria or in Australia, using firearms. On the Crown case, the evidence demonstrates that the accused had a considerable degree of influence over Majzoub.

4. [6]

   On 18 December 2014 a search warrant was executed at the accused’s home at 13 Berry Street, Regents Park (“the Regents Park premises”). In the course of that search police obtained a number of documents which, on the Crown case, detailed plans for terrorist acts to be committed on a number of specified targets, including the Australian Federal Police, the Australian Security and Intelligence Organisation, and the Lithgow Correctional Centre. It is alleged by the Crown that the nature and content of the documents demonstrate that they were connected with the preparation for, the engagement of a person in, or assistance in, a terrorist act. The Crown relies on the contents of the documents as evidencing knowledge on the part of the accused that they were connected with the preparation for a terrorist act. The Crown also relies on admissions made by the accused when spoken to by police on 18 December 2014.

5. [7]

   The principal documents upon which the Crown relies, and which were seized during the execution of the search warrant at the Regents Park premises, are as follows.

Item 371(c)

1. [8]

   This item was located in a backpack found in the garage at the premises (which was identified as the accused’s bedroom). The item contained the following writing:

Item 371(d)

1. [9]

   This item was located in the same backpack and on the Crown case is a continuation of 371(c). It contained the following:

Item 372

1. [10]

   This item was also located in the backpack and contained the following writing:

Item 373

1. [11]

   This item was also located in the backpack and contained the following writing:

Item 374

1. [12]

   This item was also located in the backpack and contained the following writing:

Item 375

1. [13]

   This item was also located in the backpack and contained the following writing:

Item 370

1. [14]

   This item had been ripped into four strips and rolled into a ball. It was located on the floor of the kitchen and contains the following writing:

2. [15]

   The Crown alleges that the reference to “motorbike(s)” in each case is a reference to firearms.

3. [16]

   The accused’s parents and siblings were present when item 370 was located, although the accused himself was not. Police asked those present who owned the document. One of the accused’s siblings indicated to police that it was science work belonging to the accused’s brother, Hamza. However Hamza later indicated that it was not his writing. The accused’s father told police that the handwriting on the document was not that of the accused. Forensic examination confirmed the presence of the accused’s fingerprints on the document.

4. [17]

   At about 1.00pm on 18 December 2014 the accused was spoken to by police at a restaurant in Enmore. He was informed that a search warrant was being executed at the Regents Park premises, and that his parents had requested that he return. He was also informed that he was not under arrest and that he did not have to go with the police if he did not wish to do so. The accused told police that he wished to go home. He returned to the Regents Park premises in the company of police at about 2.00pm, at which time the search warrant was still being executed. Upon arrival, and after administering a formal caution, police questioned the accused about items which had been located at the Regents Park premises. The accused told police (inter alia) that:

5. [18]

   The accused was subsequently arrested and charged with the present offence.

THE SEARCH WARRANTS

1. [19]

   Orders 1 and 2 which are sought in the notice of motion centre upon two search warrants issued to police pursuant to the Crimes Act 1914 (Cth) (“the Act”). Whilst it is not necessary for present purposes to set out the entirety of the terms of either warrant, the preamble is important in each case.

2. [20]

   The first warrant (Exh. F) authorised a search of the Regents Park Premises. In its original form, the preamble to the warrant stated (inter alia):

3. [21]

   After the warrant had been issued, the name “Georgia Maria HANKS” was deleted by hand and the following notation inserted beside it:

4. [22]

   The signature of Agent Griffin appears beside the date.

5. [23]

   The second warrant (Exh. G) authorised a search of the accused. In its original form, the preamble to the warrant stated (inter alia):

6. [24]

   Once again, following the issue of the warrant the name “Georgia Marie HANKS” was deleted by hand and the following notation inserted beside it:

7. [25]

   The signature of Agent Griffin again appears beside the date. Subsequently, the hand written notation set out in [24] was itself deleted and the following notation inserted:

8. [26]

   Agent Griffin’s signature again appears beside that notation.

The Oral Evidence in relation to the issue of the warrants

1. [27]

   A number of police officers who were involved in making application for, and/or executing, either or both of the warrants gave evidence before me.

Federal Agent Jolly

1. [28]

   Agent Jolly, who made two statements which became Exhs. B and C, was the Team Leader for the execution of the warrant at the Regents Park premises (Exh. B at para. 4). He stated that he was not “directly involved in the handover between constables” of either of the warrants in question (Exh. C para. 5). In terms of his role as Team Leader, Agent Jolly said (at T 7 L44):

2. [29]

   Agent Jolly said that Agent Griffin had been assigned to perform the role of warrant holder, or executing officer, in respect of the warrant authorising a search of the Regents Park premises (T5 L24 to 32). He identified Agent Hanks as the officer who had applied for the issue of the warrants, and again confirmed that he did not observe the transfer of either warrant from Agent Hanks to Agent Griffin (T5 L44 to 49).

3. [30]

   Agent Jolly was then asked (commencing at T7 L10):

4. [31]

   Agent Jolly said that Agent Wells was designated as the property officer for the warrant at the Regents Park premises and, in that capacity, had made a record of items seized (T5 L6 to 24). He also said that Agent Thompson was designated as the note taker for the warrant.

5. [32]

   In cross-examination Agent Jolly was asked about his understanding of the phrase “signing over of the warrant” (commencing T9 L 17):

6. [33]

   As to the “signing over” of the warrant in respect of the Regents Park premises, Agent Jolly was asked (commencing at T10 L29):

7. [34]

   He was then asked (commencing at T11 L39):

Federal Agent Hanks

1. [35]

   Two statements of Agent Hanks became Exhs. D and E respectively. In Exh. E Agent Hanks said that at about 4:40am on 18 December 2014 she was in the company of Agent Griffin at Australian Federal Police Headquarters in Sydney. She had a conversation with him, as a result of which she physically handed him both warrants. She then observed Agent Griffin write and sign his name on each warrant after her name, following which Agent Griffin retained possession of both warrants.

2. [36]

   In oral evidence, Agent Hanks said (commencing at T12 L39) that on 17 December she had been given the task of preparing an application for a number of warrants, including those which are the subject of the present notice of motion. She said (commencing at T13 L33) that as a result of having to prepare that application she had not attended a general briefing in respect of the operation which was held on 17 December 2014. She explained that at some stage during that day, or perhaps in the early hours of 18 December, she became aware from speaking with other officers that a number of warrants had been issued and were to be handed to designated officers for the purposes of being executed. She then gave the following evidence (commencing at T13 L49):

3. [37]

   She was then asked (commencing at T14 L27):

4. [38]

   When cross-examined Agent Hanks explained (commencing at T15 L20) that she attended the accused’s premises and participated in the search. She said (commencing at T15 L35) that she had passed the warrant to Agent Griffin because it was her understanding that he was to be the warrant holder for that day. She could not recall exactly how she came to learn that this was the case, but said that she had become aware of it on the evening of 17 December 2014. When asked about her understanding of the term “warrant holder” Agent Hanks said (at T15 L48) that such a person:

5. [39]

   The Crown directed Agent Hanks’ attention to the warrant which was issued in respect of the Regents Park premises (commencing at T16 L3). She said that the details recorded on the warrant as indicating the time and date on which it was handed over to Agent Griffin were consistent with her memory.

6. [40]

   When cross-examined, Agent Hanks was asked about the differing roles of police with respect to the issue and execution of the warrants (commencing at T16 L41):

7. [41]

   Agent Hanks was then asked (commencing at T17 L18) about the process in which she signed the warrant over to Agent Griffin:

8. [42]

   Agent Hanks said (commencing at T18 L10) that the understanding to which she had referred in that last answer had been acquired through “practice”. She explained (at T18 L21 to 23) that she recalled some occasions on which, when signing over a warrant to another officer, she had written that other officer’s name herself. She recalled other occasions on which she had asked that other officer to write his or her own name. When asked why her practice varied, Agent Hanks replied (at T18 L27-28):

9. [43]

   Agent Hanks confirmed (commencing at T18 L30) that she had never undergone any formal training about how to “sign over” a warrant to another officer in circumstances where she herself had originally been named as the executing officer. She was unable to recall whether she had ever been told about the correct procedure to be adopted.

10. [44]

    Agent Hanks was then asked about her knowledge of the provisions of ss. 3C and 3E of the Act (commencing at T18 L38):

Federal Agent Griffin

1. [45]

   Agent Griffin made two statements which were admitted as exhibits H and J respectively. At paragraph 5 of exhibit J Agent Griffin set out the circumstances in which he had come into possession of the warrant for the Regents Park Premises:

2. [46]

   In oral evidence, Agent Griffin explained that in the early hours of 18 December 2014 he attended Federal Police Headquarters, after which the following occurred (commencing at T24 L34):

3. [47]

   When cross-examined Agent Griffin explained that this was not the first occasion on which he had followed the procedures he described. He said that he thought that he had been doing so for the duration of his career as a Federal Agent which spanned more than eight years. He confirmed (commencing at T27 L37) that he had not undergone any formal training in relation to such matters, following which he was asked (commencing at T27 L41):

4. [48]

   Agent Griffin was then asked about his knowledge of s. 3E of the Act (commencing at T28 L32):

5. [49]

   As to such belief, Agent Griffin also said (commencing at T30 L34):

6. [50]

   In re-examination Agent Griffin was asked (commencing at T31 L24):

Federal Agent Thompson

1. [51]

   Agent Thompson made a statement which became Exh. K. Commencing at paragraph 5 he said that he was present at the Regents Park premises on 18 December 2014 for the purposes of assisting in the execution of the search warrant. He stated (at paragraph 10) that he commenced searching the premises at about 2:26pm and that at about 2:44pm, whilst searching the kitchen, he located item 370 on the kitchen floor near the stove. Later, at about 4:45pm whilst searching the garage, he located a blue folder entitled “Tajweed studies” containing items 371(c), 371(d), 372, 373, 374 and 375.

2. [52]

   Commencing at T32 L39 Agent Thompson explained that he had attended a briefing on 17 December 2014 in relation to various search warrants which were to be executed as part of the overall operation on the following day. He said (at T33 L15) that he was nominated as the “note taker” in respect of the warrant at the Regent Park premises. He was asked (commencing at T39 L18) about his understanding, in December 2014, of the process of transferring warrants and replied (commencing at T39 L29):

3. [53]

   Agent Thompson was also asked about the nature and extent of any training that he had undergone in relation to the process of transferring a warrant from one officer to another (commencing at T39 L45):

4. [54]

   In cross-examination, Agent Thompson was asked (commencing at T40 L45) about his knowledge of s. 3E of the Act. He said (at T41 L5) that he was familiar with the section, and with s. 3C (at T41 L25). He was then asked about his knowledge of the process of transferring a warrant from one officer to another (commencing at T41 L31):

5. [55]

   In any event it was Agent Thompson’s evidence (at T42 L6 to 11) that he played no part in the transfer of any warrant from one officer to another in the present case, and indeed was not even present when that occurred.

Federal Agent Bertram

1. [56]

   Agent Bertram made two statements which became Exhs. L and M respectively. Commencing at paragraph 6 of Exh. L he said that at about 12:10pm on 18 December 2014, Agent Griffin had “signed over” to him the warrant authorising a search of the accused. At about 1:00pm on that day, in the company of other police, Agent Bertram attended business premises in Enmore where he recognised the accused. At that point, the warrant was executed. Agent Bertram conveyed the accused to the Regents Park premises. Following his arrival, Agent Bertram performed the duties of a searcher.

2. [57]

   Commencing at para. 5 of Exh. M , Agent Bertram said:

3. [58]

   In oral evidence, Agent Bertram was asked by the Crown about his conversation with Agent Griffin to which he referred (commencing at T46 L9):

4. [59]

   Agent Bertram was further cross-examined about his evidence of the transfer of the warrant and his conversation with Agent Griffin. He said (at T50 L49) that he was standing at the back of a vehicle next to Agent Griffin when the conversation took place. He was then asked (commencing at T51 L4):

5. [60]

   Agent Bertram was then asked about his knowledge of s. 3E of the Act (commencing at T52 L48):

6. [61]

   He was then asked about his knowledge of s. 3C of the Act (commencing at T53 L37):

Detective Victor

1. [62]

   Detective Victor made a statement that became Exh. N in which he said (commencing at paragraph 4) that he was assigned to interview the accused. He explained that in the company of other police he attended premises in Enmore on 18 December 2014 where he had a conversation with the accused, in the course of which the accused said (inter alia):

2. [63]

   Det. Victor said (commencing at T57 L20) that he told the accused that he was not under arrest, following which they travelled back to the Regents Park premises.

Federal Agent Wells

1. [64]

   Agent Wells made a statement which became Exh. O. Commencing at para. 5, he said that he had arrived at the Regents Park premises at about 12.30pm on 18 December 2014 for the purposes of assisting in the execution of the search warrant. He acted as a property officer, such that when an item was seized it was handed to him, following which he would record a description of it on a Property Seizure Record (Exh. P). He explained (commencing at T58 L37) that his role was to act as the “point of collection” for items seized in the course of the search.

The Insight Program

1. [65]

   The Crown seeks to rely upon statements made by the accused during an episode of a television series called “Insight” which was broadcast on the SBS Network. The episode, which was entitled “Joining the Fight”, was in the nature of a discussion forum, the principal topic being the armed conflict in Iraq and Syria, and whether Australian citizens should participate in that conflict. The accused was a member of the audience, as was his solicitor. A recording of the program became Exh. Q on the present application and was played in its entirety. A transcript was also provided by the Crown.

2. [66]

   At the commencement of the program, a series of excerpts of what was to broadcast were played by way of preview. One such excerpt showed the accused, who was wearing a form of head dress (and who was referred to in the program as Abu Bakr) saying:

3. [67]

   The compere of the program, a Ms Brockie, commenced the episode by interviewing Abdul Salim Mahmoud, an Australian citizen who was in Syria and who described himself as undertaking “humanitarian aid” in that country. Another person, Mohamed Zuhbi, was also interviewed from Turkey. He too explained that he was engaged in “humanitarian aid” and was in the habit of travelling across the border to Syria for that purpose. He described himself as having “an obligation” to help “the people that are being mistreated in the world, particularly Muslims”.

4. [68]

   Ms Brockie then turned to the accused and the following exchange took place:

5. [69]

   The accused’s solicitor intervened and said:

6. [70]

   The conversation with the accused then proceeded:

7. [71]

   The accused’s solicitor intervened again and said:

8. [72]

   Later in the program the accused said the following:

9. [73]

   Subsequently the following exchange took place between the accused and another member of the audience:

10. [74]

    A further exchange then took place between Ms Brockie and the accused:

11. [75]

    Following further exchanges with other people in the audience, Ms Brockie then returned to the accused and the following exchange took place:

12. [76]

    The accused’s solicitor intervened again and said:

13. [77]

    The exchange continued:

14. [78]

    The accused’s solicitor intervened again and said:

15. [79]

    The accused then said:

16. [80]

    The accused and his solicitor left the studio before the program ended.

The YouTube Footage

1. [81]

   A DVD of YouTube footage sought to be relied upon by the Crown became Exh. R on the present application. The footage is entitled “A DIRECT MESSAGE TO THE SECRET SERVICES – A CALL TO TAHWEED”. It depicts the accused engaging in what might be described as a monologue apparently directed to law enforcement, and quasi law enforcement, agencies. A transcript of what the accused said is as follows:

THE ISSUES

1. [82]

   The issues for determination are as follows:

The relevant statutory provisions

1. [83]

   For the purposes of making factual findings arising from the issue and execution of the warrants, there are two relevant statutory provisions. Firstly, s. 3E of the Act contains a number of definitions, including the following:

2. [84]

   Secondly, s. 3E(5) provides as follows:

The actions of the Federal Agents

1. [85]

   Generally speaking, the evidence given by each of the witnesses called was consistent. Subject to one particular issue which is relevant to a submission advanced by the Crown based upon principles of agency, there is no particular factual issue between the parties which requires determination.

2. [86]

   I am satisfied that Agent Hanks was given the responsibility for preparing an application for the issue of a number of warrants. The two warrants in question were issued at about 10:30pm on 17 December 2014 and were directed to Agent Hanks.

3. [87]

   At some point either late on 17 December 2014 or early on 18 December 2014 Agent Hanks became aware that Agent Griffin was to become the executing officer. The evidence does not disclose why that decision was made, or who made it.

4. [88]

   At approximately 4:40am on 18 December 2014 Agent Hanks handed Agent Griffin each warrant. In each case, Agent Griffin deleted the name of Agent Hanks and wrote his own name, along with the time and date. This was done in Agent Hanks’ presence. According to agent Griffin, it was done for the purposes of him acknowledging receipt of the warrants.

5. [89]

   The warrant authorising the search of the Regent’s Park premises was executed at about 12:32pm on 18 December 2014. Its execution concluded at about 8:50pm on that evening.

6. [90]

   At some stage during the course of 18 December 2014, a decision was made that Agent Griffin would not be the executing officer in respect of the warrant authorising a search of the accused. There is no direct evidence of why that decision was made, or who made it. As to the latter, there is an available inference that Agent Griffin had been nominated to be the executing officer in respect of both warrants in an expectation that the accused would be present at the Regent’s Park premises when the warrant authorising a search of those premises was executed. It may be further inferred that because this did not turn out to be the case, the warrant which authorised a search of the accused had to be executed elsewhere. This may explain why a decision was taken to change the name of the executing officer in respect of that warrant. That said, these matters are largely immaterial for present purposes.

7. [91]

   At about 12:10pm on 18 December 2014 Agent Griffin deleted his handwritten name (which he had earlier inserted in the presence of Agent Hanks) and wrote the name of Agent Bertram, before signing and dating the alteration. At the time Agent Griffin said to Agent Bertram words to the effect that he needed to sign over the warrant as he would not be able to execute it. The warrant authorising a search of the accused was purportedly executed by Agent Bertram at about 1:05pm on 18 December 2014, at which time he endorsed the warrant accordingly.

8. [92]

   The process adopted by Agent Hanks of signing over each warrant to Agent Griffin involved Agent Griffin deleting Agent Hanks’ name and inserting his own. That process did not comply with s. 3E(5)(d). Pursuant to that provision, Agent Hanks was required to write the name of Agent Griffin on each of the warrants. Clearly she did not do so. In these circumstances it is not necessary for me to determine the consequences of the actions of Agent Griffin in purporting to “sign over” one of the warrants to Agent Bertram. Whatever occurred, it could not remedy the initial, and fundamental, failure on the part of Agents Hanks and Griffin to comply with s. 3E(5)(d).

9. [93]

   None of Agents Hanks, Jolly, Griffin or Bertram have ever undergone any formal training in relation to the correct procedures to be adopted when a warrant is sought to be signed over by one officer to another. Their respective knowledge of such matters (such as it is) has been “acquired” from observing, and speaking with, other officers over a period of time.

10. [94]

    Agent Hanks understood that the warrants could be transferred to Agent Griffin in the manner which she adopted. That understanding was clearly wrong. I am satisfied that she had not, at any time prior to these events, seen or read a copy of s. 3E(5)(d) of the Act. I am also satisfied that she had not previously read the definition of “executing officer” in s. 3C. She had read those sections for the first time in the weeks leading up to giving evidence. Notwithstanding these matters, I am satisfied that Agent Hanks did not act recklessly. She held a genuine (albeit incorrect) belief that the procedure she had adopted was proper and lawful. This is certainly not a case where Agent Hanks was aware of the proper procedure and deliberately chose to ignore it. Without intending any disrespect to Agent Hanks, the effect of her evidence is that she was ignorant of the provisions of s. 3E(5)(d) of the Act.

11. [95]

    Agent Griffin similarly had a genuine (but equally incorrect) belief that what he had done in each case was lawful. I am satisfied that he had, at some point in the past, read s. 3E of the Act. However in light of his actions, he clearly had no appreciation of what the section required. He accepted when cross-examined that he really did not think it was important who wrote the name of the executing officer on either document, and that the process which was employed did not matter. Taken in isolation, this might tend to reflect some indifference on the part of Agent Griffin. Clearly (and unlike Agent Hanks) Agent Griffin was aware of the provision. However, he had no proper appreciation or understanding of its meaning. Accordingly, this was not a case where Agent Griffin was clearly aware of the correct procedure and deliberately chose to ignore it.

12. [96]

    Agent Bertram said, and I accept, that he had previously read s. 3E. However, in light of his evidence that he thought that the correct procedure had been adopted, he similarly had no appreciation of the steps which were required to be taken in order to comply with s. 3E(5)(d).

13. [97]

    It follows that whilst I am satisfied that there was a failure to comply with s. 3E(5)(d) on the part of Agents Hanks and Griffin, it was not a conscious or reckless failure. However, their clear lack of training in, and understanding of, an important statutory provision which directly governed an equally important aspect of their duties, is a matter of some concern. The execution of search warrants, and matters pertaining thereto, are fundamental tasks of any Federal Agent who is engaged in investigating serious criminal offending. In my view, it is not unreasonable to expect that those who are engaged in this aspect of law enforcement will undergo appropriate training which properly equips them for their tasks, and that they will not be left to acquire knowledge of relevant matters in an ad-hoc (and as it turns out, completely unreliable) way. Whilst the lack of proper training is not the fault of any of those who gave evidence in the present case, it is equally not unreasonable to expect that Agents who are engaged in obtaining and executing search warrants will themselves take the necessary measures to properly familiarise themselves with any statutory provision which bears upon their function(s), so as to ensure that such function(s) are carried out lawfully.

Submissions of the Crown

1. [98]

   Notwithstanding the failure to comply with the provisions of s. 3E(5)(d) of the Act, the Crown submitted that I should conclude that neither warrant was invalid. In support of that contention the Crown advanced two broad submissions, namely that.

2. [99]

   In support of the first of those submissions, the Crown took me to a number of passages in the judgment of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. In doing so, the Crown submitted that the relevant test, as it applied to the circumstances of the present case, was whether or not the Act reflected an intention on the part of the Parliament that a warrant be regarded as invalid in the case of a failure to comply with s. 3E(5)(d). The Crown submitted that a breach of the kind which had occurred in the present case had not been intended by the Parliament to bring about such a result.

3. [100]

   The Crown submitted that nothing in the Act imposed any requirement(s) upon the officer to whom a warrant was transferred, other than (by implication) a necessity that he or she be a constable who was otherwise able to execute it. In this regard, the Crown pointed to:

4. [101]

   As to the second submission regarding agency, the Crown argued that it was a well established principle that any person may do, through an agent, what he or she is otherwise required or authorised to do personally. It was submitted that I should find, as a fact, that Agent Hanks asked Agent Griffin to write his name on the warrant and that this would suffice for the purposes of agency. The Crown acknowledged that any such conclusion depended upon reaching that finding of fact, and conceded that if I were not to make such a finding, the argument would fail.

Submissions of the accused

1. [102]

   Counsel for the accused submitted that in light of the failure to comply with s. 3E(5)(d) each warrant was obviously invalid on its face. It was submitted that this provision was expressed in unambiguous terms which set out the circumstances in which a warrant could be passed from one officer to another, and that there was no basis upon which to conclude that those requirements were unimportant.

2. [103]

   In advancing that submission, counsel relied upon a long line of authority establishing the sanctity of a person’s residence, and the related necessity to ensure strict compliance with any statutory provision which authorised the disruption of that sanctity.

Consideration

1. [104]

   In developing his primary submission, the Crown Prosecutor placed considerable emphasis upon the judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky where their Honours said (at [92]-[93]):

2. [105]

   Project Blue Sky was not a case about a search warrant but in any event, in my view the application of the test propounded by the High Court leads to the conclusion that both of the warrants should be regarded as being invalid. This is so for a number of reasons.

3. [106]

   To begin with, and speaking generally, the submission of the Crown does not sit comfortably with a long line of authority in support of the proposition that a strict approach must be taken in relation to statutory conditions governing search warrants. In George v Rockett [1990] HCA 26; (1990) 170 CLR 104 the High Court made a number of observations as to the purpose of such conditions, and the necessity to give effect to such purpose by insisting upon strict compliance with them (at 110-111):

4. [107]

   In my view, part of the underlying purpose of enacting ss. 3D and 3E was to provide an avenue for the investigation of criminal offences in a way which had proper regard to the right of an individual to his or her privacy. The decision in George v Rockett supports the conclusion that insistence upon strict compliance with provisions such as s. 3E(5)(d) is to do nothing more than give effect to such underlying purpose.

5. [108]

   In R v Alqudsi [2015] NSWSC 1615, Adamson J was called upon to consider the question of the validity of a search warrant in circumstances which had some similarity to the present case, although the position taken by the Crown (having regard to the facts) was different, and the two submissions now put by the Crown were not put to her Honour. Her Honour made a number of observations which are relevant to the present case, namely that:

6. [109]

   Each of these observations, with which I respectfully agree, fortifies the view I have reached that the Crown’s submission should be rejected. Her Honour’s observations at [55] are of particular significance. Her Honour noted that there are provisions in other statutes which reflect a clear intention on the part of the Parliament that certain irregularities should not invalidate a warrant. Section 76 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) is but one example. In my view, the absence of such a provision in the Act says much about the intention of the Parliament in enacting s. 3E, and tends very much against the submission of the Crown.

7. [110]

   It is also necessary to bear firmly in mind that a search warrant is a particular kind of instrument, vesting the police with extraordinary powers. This is a further reason why it has been consistently held that statutory provisions relating to such warrants must be met with strict compliance. As Adamson J said in Alqudsi (at [57]-[58]):

8. [111]

   As to the Crown’s second submission regarding agency, I was referred to the decision in Christie v Permewan, Wright and Co Limited [1904] HCA 35; (1904) 1 CLR 693. In that case, Griffith CJ observed (at 700) that it is a general rule of law that what a person may do himself, he may do by an authorised agent (see further O’Reilly v State Bank of Victoria Commissioners (1982) 153 CLR 1 at per Gibbs CJ at 11, and per Wilson J at 32-33).

9. [112]

   The Crown acknowledged that acceptance or rejection of this submission depended upon particular factual findings being reached. The Crown submitted that I would be satisfied that at the time of handing over the warrants Agent Hanks said to Agent Griffin words to the effect “write your name on this” and that this amounted to the necessary authorisation to support a relationship of agency existing between them.

10. [113]

    Agent Hanks gave evidence (at T14 L37-39) that in respect of each of the warrants she asked Agent Griffin to “put his name on that” and then observed him write his name on each warrant while he was standing next to her. Although Agent Griffin said (consistently with Agent Hanks) that he had been handed both documents, he also gave evidence (in the passages set out in [46] and [48] above) that Agent Hanks had asked him to place his name on the documents for the purposes of acknowledging receipt of them. He also gave evidence (in the passage set out in [47] above) that he regarded himself as the new executing officer.

11. [114]

    I am satisfied on the evidence that Agent Hanks asked Agent Griffin to place his name on each warrant. That conclusion is consistent with the evidence of each of them. However according to Agent Griffin, he was asked to placed his name on each warrant, not for the purposes of any authorisation, but for the purposes of acknowledging receipt.

12. [115]

    It may be that from his perspective, Agent Griffin saw himself as the new executing officer. However, in circumstances where I have formed the view that all of the officers who gave evidence before me did their best to be truthful, there is no reason to reject his evidence that he was asked by Agent Hanks to sign the warrants for the purposes of acknowledging receipt of them. There is further support for that conclusion in the evidence given by Agent Hanks, who said that as far as she was concerned, all that was required was the crossing out of her name and the insertion of the name of another officer in lieu thereof (at T14 L44 – T15 L8).

13. [116]

    In these circumstances, and based on the evidence before me, I am unable to accept the Crown’s submission as to agency.

14. [117]

    In my view, the failure on the part of the police to comply with s. 3E(5)(d) of the Act renders each warrant invalid. It follows that any evidence obtained as a result of the execution of either warrant was obtained in contravention of an Australian law. In these circumstances I turn to consider whether that evidence should be excluded.

The relevant statutory provisions

1. [118]

   Section 138 of the Evidence Act 1995 (“the EA”) is in the following terms:

Submissions of the Crown

1. [119]

   The Crown submitted that even if I were to conclude that the warrants were invalid, I should nevertheless admit the evidence pursuant to s. 138 of the EA. In advancing that submission, the Crown relied upon the fundamental proposition that any breach on the part of the police was a purely technical one. The Crown submitted that the factors set out in s. 138(3), along with other factors, weighed heavily in favour of admission of the evidence.

Submissions of the accused

1. [120]

   As detailed further below, Counsel for the accused conceded that a number of the factors set out in s. 138(3) weighed in favour of the admission of the evidence. However counsel for the accused took issue with the Crown’s submission that the breach was a technical one and submitted that the gravity of the contravention on the part of the police was “extremely high” because it was “something which has been continuing…within the AFP for years”.

2. [121]

   Counsel for the accused further submitted that Agents Hanks and Griffin should have taken the time to satisfy themselves as to the appropriate procedure. Counsel went so far as to categorise their actions as “reckless”. Although he accepted that there was no evidence of mala fides on the part of either officer, he emphasised that each of them should have appreciated the significant step that they were taking in relation to each of the warrants, and should have ensured that what they were doing was lawful. Ultimately, he described their approach to the matter as “cavalier”.

Consideration

1. [122]

   The onus is on the Crown to satisfy me that the evidence should be admitted. Section 138(3) mandates that I take into account the factors therein in making my determination. However, those factors are not exhaustive.

2. [123]

   Counsel for the accused conceded that:

3. [124]

   Counsel also specifically eschewed any suggestion of mala fides on the part of either Agent Hanks or Agent Griffin. The effect of counsel’s various concessions was that each of these matters weighed in favour of the admission of the evidence. Counsel did not suggest that the contravention that I have found occurred was contrary to, or inconsistent with, the right of a person recognised by the International Covenant on Civil and Political Rights (s. 138(3)(f)). There is no evidence of whether or not any other proceedings are likely to be taken in respect of the contravention (s. 138(3)(g)).

4. [125]

   The principal submission advanced by counsel for the accused was that the gravity of the contravention of s. 3E(5)(d) of the Act was “extremely high” (s. 138(3)(d)). Whilst I would not elevate it to that level, I have already observed that it is not unreasonable to expect that police officers will properly familiarise themselves with statutory provisions under which they are operating. Clearly, that did not occur in the present case. That, against a background of inadequate training, is of some significance, as is the fact that compliance with s. 5E(3)(d) presented no real difficulty (s. 138(3)(h)). Such matters weigh in favour of rejecting the evidence.

5. [126]

   Equally however, this was certainly not a case where there was a deliberate “cutting of corners”: Bunning v Cross (1978) 141 CLR 54 at 79 per Stephen and Aickin JJ. I am also unable to accept the submission advanced by counsel for the accused that the actions of Agents Hanks and Griffin were reckless (s. 138(3)(e)). As I have found, this was not a case in which either officer, seized of a proper knowledge of the relevant provision, simply decided to ignore it. The officers were, in fact, largely ignorant of the provision and/or its effect.

6. [127]

   In my view, the considerations set out in s. 138(3) weigh heavily in favour of the conclusion that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained by virtue of the contravention that I have found occurred. Outside of the provisions of s. 138(3) it is also relevant that the cogency and reliability of the evidence is unaffected by the contravention.

7. [128]

   For all of these reasons, I am satisfied that the evidence obtained by virtue of the execution of the warrants should be admitted as evidence in the Crown case at the accused’s trial.

The additional evidence relied upon by the accused

1. [129]

   Counsel for the accused adduced evidence (to which the Crown objected) which, it was submitted, was relevant to my determination of whether the evidence of the “Insight” program and/or the “YouTube” footage relied upon by the Crown should be admitted. It was ultimately agreed that I should receive this evidence and subsequently rule on its admissibility once I had heard from the parties. The evidence may be summarised as follows.

The evidence of Neil Mercer

1. [130]

   Mr Mercer is a journalist who, in early 2014, was approached by the NSW Community Relations Commission to produce a series of short videos about the conflict in Syria and its impact upon the Australian community. Mr Mercer explained that although the project ultimately did not proceed to finality, he spoke with a number of members of the community (commencing at T69 L34). He said (commencing at T69 L49) that the aim of the project was to discourage young men from going to Syria to engage in warfare, and to try and explore the concerns of members of the community in that respect.

2. [131]

   Mr Mercer said (commencing at T70 L23) that as part of the project he contacted the accused and interviewed him. In respect of that interview Mr Mercer gave the following evidence (commencing at T71 L31):

3. [132]

   Mr Mercer said (commencing at T73 L14) that in the course of the interview the accused had expressed the view that he thought it was “rather stupid, if he was a threat to national security, to allow him to stay in the country”. Mr Mercer also stated that the accused did not advocate the promotion of, or participation in, violence (T73 L17-24).

The further YouTube footage

1. [133]

   Counsel for the accused also relied upon two further excerpts of YouTube footage, the first of which was entitled “Social issues No. 2” and the second “Adopt the morals and manner of Rassullah”, in support of the exclusion of the evidence relied upon by the Crown. Each piece of footage was played in its entirety. Speaking generally, each piece of footage depicts the accused again engaging in what might be described as a monologue and preaching aspects of the Islamic faith.

The relevance of the evidence relied upon by the accused

1. [134]

   Counsel for the accused submitted that it was open to conclude from the evidence of Mr Mercer, along with the additional YouTube footage, that the accused was properly regarded as an “Islamic preacher” who did not advocate violence. It was submitted that I should conclude that the accused was a person who did “nothing more than someone by way of preaching Islam” in a way which was “totally unconnected” to the Crown case, and which was inconsistent with the Crown’s allegation that he was a person who promoted violence. It was submitted that merely because a person was “an avid believer in the Muslim faith” did not lead to a conclusion that he or she subscribed to the type of ideology alleged by the Crown in the present case. It was submitted that all of these considerations were relevant to the question of whether the Insight program and the YouTube footage relied upon by the Crown were relevant and admissible.

2. [135]

   I accept unreservedly that simply because a person is a devotee of the Islamic faith does not mean that he or she promotes violent ideology. However, even if it were concluded that the evidence of Mr Mercer and the additional YouTube footage supported a conclusion that the accused was not violent, that does not render the Crown’s evidence inadmissible. As I have discussed below, the admissibility of the evidence relied upon by the Crown is determined, in the first instance, according to whether it is relevant in terms of s. 55 of the EA. If a conclusion is reached that it is relevant, a question will then arise as to whether it should be excluded pursuant to s. 137 of the EA.

3. [136]

   It follows that in my view, the evidence adduced in the accused’s case on the present application is not relevant to the issues that I am asked to determine. The evidence is therefore rejected.

Submissions of the Crown

1. [137]

   The Crown submitted that the evidence of both the Insight program and the YouTube footage was clearly relevant having regard to the provisions of s. 55 of the EA.

2. [138]

   The Crown submitted that the Insight episode recorded statements made freely and openly by the accused which provided evidence of his:

3. [139]

   It was submitted that each of those considerations was relevant, in a subjective way, to the accused’s understanding of the connection of the documents in question to a terrorist act, as well as being objectively relevant to that connection. In terms of the YouTube footage, the Crown submitted that the statements made by the accused established the very same matters and that for the same reasons, the evidence was relevant and admissible.

4. [140]

   On the assumption that I reached such a conclusion, the Crown further submitted that there was no proper basis upon which to exclude the evidence pursuant to s. 137 of the EA. The Crown emphasised that the prejudice to which the section is directed is not prejudice to an accused’s interests arising from evidence which is capable of supporting a finding of guilt. Rather, it is directed to unfair prejudice arising from evidence that would illogically lead to a finding of guilt. It was submitted that in the case of both the Insight program and the YouTube footage, the evidence had significant probative value which outweighed any prejudicial effect. It was further submitted that the issues raised on behalf of the accused could be dealt with by appropriate directions being given to the jury.

Submissions of the accused

1. [141]

   Counsel for the accused submitted that the evidence of the Insight program was not relevant because it addressed “issues far removed from the charge”. In developing that submission, counsel submitted that the program covered statements made in respect of a broad range of topics, many of which did not relate to the elements of the offence faced by the accused. A similar submission was made in respect of the YouTube footage which, counsel argued, showed nothing more than “a person espousing the Muslim faith as a preacher”. He submitted that at no stage of the footage did the accused advocate violence, destruction of property, or killing, and indeed did not touch upon any matters relevant to the charges.

2. [142]

   In the event that I came to the conclusion that the evidence was relevant in each case, counsel submitted that its probative value was outweighed by the danger of unfair prejudice. The unfair prejudice was said to arise because (inter alia) the accused:

3. [143]

   Counsel also submitted that the Insight program was little more than a collective discussion, contributed to by many individuals who wanted to share their own views and opinions about some very distressing issues. It was submitted that in these circumstances, the accused should not bear responsibility for the statements of others.

4. [144]

   In terms of the YouTube footage, counsel submitted that it posed a risk that “a member of the jury might misuse the evidence…or give it more weight than it is worth, or be influenced and thereby diverted from (his or her) task”.

Consideration

1. [145]

   The first question for determination is the relevance of the evidence in each case. That determination is to be made according to the provisions of s. 55 of the EA which are in the following terms:

2. [146]

   The test of relevance in s. 55 has been recognised as a wide one. The section requires that there be some rational effect on the assessment of the relevant probability, and such effect may be direct or indirect: Zaknic Pty Limited v Svelte Corp Pty Limited (1995) 61 FCR 171; (1995) 140 ALR 701. The broad nature of the section is evident from the use of the word “could” which, as it is used in the section, means “it is possible that it may”: Nye v NSW [2002] NSWSC 1270.

3. [147]

   In the course of the Insight program, the accused stated (inter alia) that:

4. [148]

   The submission of counsel for the accused that the subject matter of the Insight program is unrelated to any issue in the accused’s trial is reflective of a narrow approach which is inconsistent with that which is to be taken when determining relevance under s. 55. Needless to say, the accused’s trial is not about conflict in Syria, which was the subject under discussion. However what is in issue is the relevance of what the accused said in that context. In my view, in making the statements that he made, the accused was expressing an ideology which supports the matters set out in [138] above.

5. [149]

   In the course of the YouTube footage the accused made several statements which, in my view, also provide evidence of the matters to which the Crown pointed. To begin with, and in light of the content of some of the documents found at the accused’s premises, it is relevant that in the course of the footage the accused sought to convey a “message” directed to “the secret services” which included the Australian Security and Intelligence Organisation (that organisation being referred to in item 371(c)). The message conveyed by the accused was expressed to be a “clear message” to “believe in Allah” before it was “too late”. The accused warned those to whom the message was directed that they would “regret the day when Allah … orders his angels to drag (them) on (their) faces to the pits of hell fire”. He described this as “the day the angel of death comes and rips the sole out of (their) chest” at which time they would “be put (their) black hole…(and) put in (their) grave.” In these circumstances I am not able to accept the submission advanced on behalf of the accused that he did not advocate violence. The statements I have cited are directly to the contrary.

6. [150]

   The Crown must establish, as an element of the offence charged, a connection between the documents which were allegedly in the accused’s possession, and the preparation for a terrorist act. The Crown must also prove that the accused knew of that connection. The statements made by the accused, particularly those in which he advocated violence, are in my view clearly relevant to the issue of whether the accused had that knowledge.

7. [151]

   The Crown must also prove that the terrorist act was to be done or threatened with the intention of advancing a political, religious or ideological cause. The various statements made by the accused are capable of supporting a conclusion that the accused advocated a particular religious or ideological cause. That, in turn, bears upon the issue of whether the accused was aware of the connection between the documents and the preparation for a terrorist act.

8. [152]

   For all of these reasons, I am satisfied that the evidence is relevant in each case.

9. [153]

   The final consideration is whether, having reached that conclusion, the evidence should be excluded under s. 137 of the EA which is in the following terms:

10. [154]

    Evidence does not fall within the terms of s. 137 simply because it is contrary to the interests of the accused. The danger of unfair prejudice arises if there is a real risk that the evidence will be misused by the jury in some unfair way: Doddridge v Tasmania [2010] TASCCA 18 at [23]-[25] per Crawford CJ, Tennent and Porter JJ agreeing, citing Festa v R [2001] HCA 72; (2001) 208 CLR 593 at [51] per McHugh J. The terms of s. 137 are such that if I come to the conclusion that the probative value of the evidence is outweighed by the danger of unfair prejudice, I must refuse to admit it.

11. [155]

    In my view, the probative value of the evidence is high and I am not satisfied that any of the matters to which counsel for the accused pointed give rise to a danger of unfair prejudice which outweighs such probative value.

12. [156]

    To the extent that any unfair prejudice could possibly arise from the fact of the accused’s appearance, or his demeanour, such matters can be properly addressed by an appropriate direction being given to the jury, reminding them that (inter alia) no adverse inference is to be drawn from such matters, and that it is the statements of the accused, and not his appearance, upon which the Crown relies. It is to be assumed that the jury would apply such a direction in their deliberations: R v Glennon [1992] HCA 16; (1992) 173 CLR 592 per Mason CJ and Toohey J, cited by Barr J (Spigelman CJ and Price J agreeing) in Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470 at [153].

13. [157]

    I should, however, make some final observations in respect of the Insight program. Obviously, the Crown relies on statements made by the accused (which I have concluded are admissible) and not anyone else. Because of the nature of the program the Crown is entitled, in my view, to lead some evidence which provides the context in which those statements were made.

14. [158]

    However, it is important that the footage of the Insight program be put before the jury in a form which minimises the statements made by other persons who were interviewed by the compere, and/or who were present in the audience. Such statements are obviously not admissible against the accused and the jury will be reminded of that. However, having viewed the footage I am of the view that those statements can be largely excised in a way which leaves sufficient material remaining `to establish the general context in which the accused spoke.

15. [159]

    The Crown should have regard to these observations when determining how the evidence is to be adduced. Depending upon what approach the Crown might take, counsel for the accused is at liberty to raise the issue again should the need to do so arise. These observations do not, however, affect my conclusion that the statements made by the accused are clearly admissible against him, and should not be excluded.

ORDERS

1. [160]

   Although I have upheld the position of the accused in relation to the validity of the search warrants, I have ultimately come to the view that the evidence obtained following the execution of those warrants should be admitted.

2. [161]

   In these circumstances I make the following order:

   1. (1)

      The notice of motion is dismissed.