R v Taleb (No 2)

1. [1]

   On Friday 29 March 2019, the fifteenth day of Mr Taleb’s trial, the Prosecutor raised an objection to the evidence of a witness Keysar Trad, who the accused proposed to call the following Monday. A statement, or proof, or report of the witness was tendered on the voir dire. [1] That report had only very recently been provided to the Prosecutor. I allowed parts of the report but disallowed other parts. I indicated I would provide reasons later. These are those reasons.

2. [2]

   The accused sought to call Mr Trad to give evidence in rebuttal of some expert testimony provided by a prosecution witness Dr Rodger Shanahan. Dr Shanahan gave evidence about the history of the Islamic religion and parts of the Middle East, the geography of the region, the beliefs and practises of the Islamic State and/or ISIS, the imagery and propaganda used by ISIS, and the tactics and progress of the war in Iraq and Syria. There was no objection to Dr Shanahan’s evidence. There was no dispute as to his expertise to provide opinion evidence on these subjects or in relation to the relevance of the evidence.

3. [3]

   The objection to Mr Trad’s evidence was three-fold. First, no report was served in accordance with the relevant provisions of the Criminal Procedure Act 1986. Second, many (perhaps most) of the propositions to be advanced by Mr Trad were not put to Dr Shanahan: Browne v Dunn (1893) 6 R 67. Third, it was submitted that Mr Trad did not have the necessary expertise to provide the opinions contained in his proof of evidence.

Failure to serve the evidence and to put relevant propositions to the prosecution’s expert

1. [4]

   The first and second complaints were well-founded. Section 143(1)(h) of the Criminal Procedure Act provides that a defence response to a prosecution case statement is to contain:

2. [5]

   No such report was served until after the prosecution case was closed. Dr Shanahan’s report was served on the accused’s lawyers many months previously.

3. [6]

   Section 146 of the Criminal Procedure Act provides that the Court may exclude evidence that has not been disclosed in accordance with, relevantly, s 143.

4. [7]

   The explanation provided by Queens Counsel for the accused was that Mr Trad had been tardy in providing a report. This meant the report could not be served and, further, that important propositions were not put to Dr Shanahan in cross-examination. Whether or not there was any delinquency otherwise, it was clearly not the fault of Mr Taleb himself. He is a man in his early twenties, who suffers from schizophrenia and, it is safe to assume, has no legal training, let alone any understanding of the disclosure provisions in the Criminal Procedure Act or the rule in Browne v Dunn.

5. [8]

   As to the rule of practice stated in Browne v Dunn, in MWJ v The Queen, [2] Gleeson CJ and Heydon J said at [18]:

6. [9]

   The majority (Gummow, Kirby and Callinan JJ) said at [40]:

7. [10]

   Their Honour’s went on to say at [41]:

8. [11]

   I did not think it appropriate to invoke the failure of Queens Counsel to challenge Dr Shanahan (or apply the rule in Browne v Dunn) so as to disadvantage the accused by preventing him from calling relevant evidence that would otherwise be admissible.

9. [12]

   Similar considerations governed my decision not to exercise the discretion in s 146 of the Criminal Procedure Act to exclude the evidence because it was not served. The evidence of Mr Taleb’s religious beliefs and interest in Islamic State had taken on some prominence in the prosecution case. Mr Trad’s evidence had a capacity to place that evidence in a different light and to lessen the impact of the opinions of Dr Shanahan. My concern was that to prevent the accused from relying on Mr Trad’s evidence, in circumstances where Dr Shanahan was essentially given free rein to offer opinions on a wide range of subjects and on the evidence adduced in the trial, would create substantial unfairness to the accused man who challenged some of Dr Shanahan’s opinions, particularly those about Islam.

Mr Trad’s expertise to provide the opinions

1. [13]

   Mr Trad’s evidence fell into two categories. The first concerned the religion of Islam; including radical Islam, Islamic imagery, the source of beliefs held by practitioners of that faith and the meaning of certain words and verses from the Quran and other holy works and religious texts. The second concerned the practices of Islamic State, the conflict in Syria and other related matters.

2. [14]

   Mr Trad’s qualifications were set out on the first page and a half of his report as follows:

3. [15]

   I was satisfied that Mr Trad’s experience, studies and religious life provided him with the necessary expertise to provide opinion evidence of matters concerned with, and related to, the practice of Islam.

4. [16]

   However, most of the evidence in Mr Trad’s report touching upon the conflict in Syria and the practices of the Islamic State appeared not to be based in any recognised field of study, or on Mr Trad’s expertise, but rather resulted from his general interest in the subject matter and what he had read in newspapers and the like. I concluded that he had no relevant expertise that would allow him to express his opinions as an expert. There were a couple of exceptions to that, where there was a significant overlap between his evidence concerning Islam and his evidence concerning Islamic State or caliphate. I allowed that evidence that fell into these exceptions. For example, I allowed his evidence that a particular Hadith “prophesised the advent of ISIS and warned Muslims against them”. He translated the particular Hadith as follows: [3]

5. [17]

   I allowed him to explain the meaning of the Hadith and how it appeared to relate to ISIS.

6. [18]

   I also allowed Mr Trad’s evidence challenging the narrow approach Dr Shanahan gave to words such as “martyr”, “jihad” and “kafir” and to the appropriation by Islamic State of words and imagery that is more generally associated with the practice of Islam. I also allowed some limited evidence that the practice of Islamic State was contrary to the true practice of Islam.

7. [19]

   The particulars of these rulings are set out in the transcript of 29 March 2019 at pp 894-895.