R v HG; R v WE (No 1)

The accused, to whom I shall refer as WE and HG (each being a young person), have each pleaded not guilty to an offence contrary to s 101.6(1) of the Criminal Code 1995 (Cth) in the following terms:

Both accused have filed notices of motion seeking the exclusion of certain evidence relied upon by the Crown.

In broad terms, the Crown alleges that on 12 October 2016 the accused were involved in purchasing, and taking joint possession of, two tactical hunting knives, in preparation for, or planning, a domestic terrorist act that was to have involved one or more politically, religiously or ideologically motivated attacks upon one or more law enforcement officers, or other members of the public. The Crown alleges that both accused were sympathetic to the listed terrorist organisation Islamic State (IS), in circumstances where propaganda issued by IS has, in the past, called for attacks to be perpetrated upon on law enforcement officers and members of the public in Australia and other western countries.

In June 2014 both accused attended East Hills Boys Technology High School. On 18 June 2014 each refused to stand at a school assembly when the Australian National Anthem was being played. When spoken to regarding this incident, the accused HG stated that he only stood for God, and that he did not respect Australia because “this country sends troops to Afghanistan to kill our men and rape our women”. HG subsequently enrolled in distance education but that enrolment was cancelled in February 2016 after it was reported to the Department of Education that he had obtained ongoing employment for 25 hours a week. WE continued to be enrolled as a High School student prior to his arrest although his attendance at school was sporadic.

On 12 October 2016 WE failed to attend school and met with HG at HG’s house in Revesby. Together, they went to an Aquatic Centre in Revesby before returning to HG’s residence and then travelling to Bankstown together by bus. At about 11:30am HG entered the premises of the Bankstown Gun Shop located at 201 Canterbury Road, Bankstown. WE remained outside. Inside the premises HG was overheard asking the store attendant whether two particular knives had a fixed blade. Each of the knives in question in fact had a fixed blade of approximately 20cm in length which formed a cutting edge on one side, and a saw-tooth serrated on the other. Each was contained in a coloured box bearing the words “M-9 Bayonet”.

An IS publication known as “Rumiyah” (Issue 2) which was published in October 2016 and which was found on HG’s phone, stated (inter alia) the following:

HG purchased the two knives and departed the shop. He then entered a nearby store where, in reference to the box containing the knives, he requested a “bigger plastic bag to cover this up”. No plastic bag was available and he left the premises.

Both accused then walked a short distance down the road where they stopped adjacent to a garbage bin which was located outside commercial premises. At that point, WE removed a number of personal items from a backpack he was carrying, including school exercise books, a pencil case and a calculator bearing his first name on the inside. He disposed of those times in the garbage bin. The two knives were then placed inside the backpack.

Both accused then walked to a nearby bus stop where they caught a bus to Bankstown Railway Station, before walking together towards Adnum Lane, Bankstown. There, they entered a Musalla, or prayer room, situated in private premises at 108 Adnum Lane.

Residents at the premises which housed the Musalla overheard the two accused talking in a bathroom behind a locked door. When challenged and informed that this was not permitted, one of the accused stated that he was teaching the other how to perform hand washing ablutions before their prayers. Both accused then exited the bathroom.

A short time later, police attended the Musalla. Near the entrance, police located a backpack, the appearance of which was consistent with that which WE had been carrying earlier that day. WE was observed inside the premises praying and police asked him to come outside. HG then emerged from another room in the premises. He too was requested to come outside. Once outside the premises, both accused were arrested and cautioned.

During a subsequent search of the premises, police seized a number of items including the two knives which had been purchased earlier that day, the packaging, and a receipt for their purchase. One of the two knives had been removed from its packaging. Police also found two camouflage patterned neck gaiters, a portable torch and a pair of fingerless gloves, along with other items of clothing.

Police also found a handwritten note in a backpack which bore both Arabic and English script. The Arabic script, when translated into English, read:

The English script was incomplete and read:

The Crown alleges that this note constituted a pledge of allegiance, to be made to IS, and to its leader and self-proclaimed Caliph, Abu Bakr Al-Baghdadi, prior to the commission of a terrorist act.

Upon arrest, the accused were separated from one another and questioned by police. WE exercised his right to silence. However, HG made a number of statements in which he espoused a radical and extremist view of Islam. Those statements are the subject of objection and are discussed further below.

When the two accused were taken to the police station, each was afforded the right to communicate with a legal representative. Having exercised that right, each declined to participate in an electronically recorded interview.

Subsequent to the arrest of the accused, search warrants were executed at the following locations:

The Crown alleges that both accused held when what might be described as an extremist ideology. In particular, it is alleged that HG had previously demonstrated support for violent Islamist ideologies, and had previously expressed an intention to commit, or participate in, acts of violence which were politically, religiously or ideologically motivated. Specifically, on 15 September 2012 (when aged 12) HG was present during a violent protest by members of the Muslim community in Hyde Park in Sydney. On that occasion he was observed in the company of his step-father, Hamdi Alqudsi, holding a placard stating:

Investigations have also identified that HG had made active use for a number of social media accounts on which he posted images of the IS flag together with the caption:

Following his arrest, handwritten notes written in Arabic were found in HG’s cell expressing support for IS.

The Crown case against WE in terms of his intention and ideology is generally based around similar material contained on electronic devices to which he was connected.

Having regard to the issues raised on the respective notices of motion, it is appropriate to set out a number of statutory provisions which bear upon the resolution of those issues.

Section 55 of the Evidence Act 1995 (NSW) (“the EA”) is in the following terms:

Section 84 of the EA is in the following terms:

Section 137 of the EA is in the following terms:

Section 138 of the EA is in the following terms:

Section 13 of the Children (Criminal Proceedings) Act 1987 (NSW) (“the CCPA”) is in the following terms:

A large number of police and investigative officers attended the Musalla and arrested both of the accused. Constable Porou spoke with HG as police began arriving at the location. He said that HG commenced to raise his voice, in the course of which the following exchange took place:

These words were said in the presence of other officers, including Constable Gunn. At that point, HG had not been cautioned.

Det. Sutherland then spoke to HG and said:

The accused responded:

Det. Sutherland then said:

The accused responded:

The accused was then taken down the stairs by a number of police and into a laneway behind the Musalla to await the arrival of transport to take him to the police station. Det. O’Brien described the accused as being “quite animated and yelling in a belligerent manner” at that time. Det. O’Brien said:

There is no suggestion that these statements were anything other than the accused’s spontaneous utterances. The police then reached the laneway and waited for transport to take the accused to Bankstown Police Station. At paragraph 9 of his statement, Det. O’Brien stated:

Det. O’Brien then said to the accused:

At that point Det. O’Brien held the accused and lowered him to the ground, at which point the accused said:

Det. Goodhew stated that at that point the accused was saying words to effect:

At about this time Det. Cashmere said to Det. Goodhew:

Det. Goodhew then removed a mobile phone from his pocket and commenced to film what the accused was saying. Simultaneously, an audio recording was taken by Det. Victor. A transcript of what was said is in the terms set out hereunder, by reference to the following attributions:

Although the Crown does not press the tender of anything said by the accused from this point onwards, I set out the balance of that conversation:

According to Det. Goodhew, the entirety of these statements made by the accused extended over a period of approximately 25 minutes. Eventually, a truck arrived to transport the accused to Bankstown Police Station. At that stage a further conversation took place (by reference to the following attributions):

The accused was then taken back to the Bankstown Police Station where he arrived at about 1.00pm. Although the evidence is not precise, I am satisfied that a period of less than 30 minutes elapsed between the time that the accused left the laneway behind the Musalla, and the time that he arrived in the charge room at the Bankstown Police Station.

Sgt. McEvoy who was the custody manager on duty at that time said the following in his statement:

In her statement, Con. El-Mir recalled the following:

Det. Victor was of four police officers who gave oral evidence on the application brought by the accused to exclude the evidence of his statements. He explained that the words “caution him” which were attributed in the transcript to Det. Simmons were in fact said by him (i.e. Det. Victor). He explained (at T44.47-T44.48) that what he had said in that regard was in the nature of a query, in circumstances where it had been confirmed to him that the accused had been cautioned. That confirmation is consistent with the undisputed evidence to which I earlier referred.

Det. Victor acknowledged (at T42.11-T42.14) that he was cognisant of the fact that the accused was 16 years of age. He was then cross-examined (commencing at T42.22) as to his knowledge of statutory requirements governing the conduct of investigations involving persons under the age of 18:

He was then asked (commencing at T43.35):

Det. Victor was then asked (commencing at T44.43):

In terms of his ongoing dialogue with the accused in the laneway whilst awaiting transport, Det. Victor gave evidence that he was asking questions for the purposes of “building rapport” (at T46.42). In that regard he was asked the following (commencing at T49.5):

Det. Goodhew also gave evidence. He said (at T68.30-T68.35) that at the time of commencing his recording of the accused he had expected that the accused had been “advised … of his rights”. He said (commencing at T72.27) that he was aware of requirement imposed by s 13 of the CCPA in relation to young persons. He said that whilst he could not say if he turned his mind to those provisions at the time, he did know “that that piece of legislation says that anything said at a scene may be inadmissible or should be inadmissible”.

Det. Goodhew confirmed that at the time that he was filming the accused he was aware that the accused was a young person and had been placed under arrest. He was then asked (commencing at T72.49):

Det. Simmons also gave evidence and was cross-examined about things that he had said to the accused in the course of the conversation in the laneway. He agreed (at T80.40) that he had asked the accused what “role” he would play in the destruction of government. He was then asked (commencing at T80.42):

Finally, Det. Cashmere gave evidence. He agreed (at T86.31-T86.38) that he had overheard the accused being arrested by Det. Sutherland. He was then asked (commencing at T87.33):

Det. Cashmere was then asked about his direction to Det. Goodhew to record what the accused was saying (commencing at T90.34):

The primary submission of senior counsel for the accused was that the operation of s 13 of the CCPA mandated the exclusion of the entirety of HG’s statements at or around the time of his arrest.

Senior counsel submitted that it was clear on the evidence that there had been no compliance with s 13(1)(a). In terms of s 13(1)(b)(i), senior counsel submitted that I would not be satisfied that there was a proper and sufficient reason for the absence of an adult at the time that the accused was making the statements in question. In this regard, senior counsel submitted that it was clear on the entirety of the evidence that the accused had been subject to considerable surveillance in the period immediately leading up to the time of his arrest, and that in those circumstances there was every opportunity for the police to secure the presence of the accused’s mother and/or father at the scene. I should say at this point that I find that particular submission difficult to accept. Obviously, the accused was not aware of the fact that he was the subject of surveillance. The suggestion that the police could have notified his parents in those circumstances is, from an operational point of view, entirely impractical. The essence of senior counsel’s submission was that the circumstances which had arisen of the accused’s arrest could not possibly have come as a surprise to the police. He submitted that it had been open to the police, bearing in mind their awareness of the fact that the accused was a teenager, to at least make arrangements at the very moment of his arrest for the presence of an adult.

Senior counsel further submitted that even if I was satisfied that there existed a proper and sufficient reason of the kind contemplated by s 13(1)(b)(i) of the CCPA, the particular circumstances of the case tended wholly against the admission of the evidence. In this regard, he relied on two particular factors.

Firstly, he submitted that Det. Cashmere had purposely determined that the accused’s statements should be recorded, in circumstances where he knew that the relevant provisions of the CCPA had not been complied with, and thus knew that the admissibility of anything recorded would be in issue.

Secondly, he submitted that when the accused had first made statements they were not, as it were, a “monologue” or “rant” in which he had engaged completely of his own accord. Rather, it was submitted that what the accused had said had been actively encouraged and promoted by questions put to him by police, most (if not all) of whom were aware of the provisions of the CCPA and, more importantly, were aware of the fact that those provisions had not been addressed.

The Crown accepted that the provisions of s 13(1)(a) of the CCPA applied, and that they had not been complied with. In those circumstances, the focus of the Crown’s submissions was on the provisions of s 13(1)(b)(i) and (ii).

In terms of s.13(1)(b)(i), the Crown submitted that in light of the fact that the accused’s arrest had occurred just before the statements were made, it was not practicable to have a parent or legal representative present. The Crown submitted that at the time, police were waiting for a vehicle to arrive in order to transport the accused back to the Bankstown Police Station, and that the accused had effectively volunteered and spontaneously expressed his views.

The Crown submitted that what had occurred in terms of the accused’s statements was not properly regarded as an “interview” with the police, but amounted to circumstances in which the accused had taken it upon himself to express his views without warning. That said, the Crown did appear to concede that at least at some point the police, by their questions, had encouraged the accused to continue what he was saying, in circumstances where most (or perhaps all) of them were aware that there had been no compliance with the CCPA. This, as I understood it, formed at least part of the basis upon which the Crown had determined that not all of the accused’s statements were to be pressed.

The Crown also emphasised the necessity to look at the circumstances of the events as a whole. It was submitted that when viewed in this way, it was difficult to avoid the conclusion that even if the police had not asked the accused any questions, and even if they had taken no active role in what was occurring, the same words would have been said.

In terms of s 13(1)(b)(ii), the Crown again submitted that what had been said by the accused had not been “agitated” or promoted by the police. The Crown also emphasised, as a relevant circumstance, the fact that statements made by the accused were highly probative of his ideology.

The principal objection taken on behalf of the accused concerned the statements made in the laneway whilst waiting to be transported to Bankstown Police Station. Given the Crown’s concession as to the non-compliance with s 13(1)(a) of the CCPA, the focus of the present determination is necessarily upon s 13(1)(b).

None of the police officers who gave evidence sought explained, in any cogent way, why there had been no compliance with s 13(1)(b)(i). It is apparent that upon being arrested, the accused was removed from the precincts of the Musalla, not only for the purposes of separating him from the co-accused, but also for the purposes of waiting for transport to take him back to the police station. Whilst there was nothing to prevent attempts being made to contact the accused’s parents at that time, I infer that the police took the view that it was appropriately done once they had returned to the police station. I am prepared to accept that this constitutes a proper and sufficient reason for the purpose of s 13(1)(b)(i).

However in terms of s 13(1)(b)(ii), the particular circumstances of the present case tend, in my view, wholly against the admission of the evidence. Whilst I acknowledge that the evidence has significant probative value, and is clearly demonstrative of the accused’s ideology, I am driven to the conclusion that although the accused’s initial statements were made of his own volition, police almost immediately began to question him about what he was saying. Having viewed the footage of what was said, it is clear that these questions had the effect of encouraging the accused to make the statements that he subsequently made.

I am unable to accept the evidence of Det. Victor that in asking questions of the accused he was merely attempting to “build rapport”. The terms of the questions which were asked, both by Det. Victor and others who were present, belie that stated purpose. Indeed, Det. Victor appeared to ultimately concede that he was asking the accused questions to further the investigation. Accepting that to be the case, he was doing so in circumstances where he was aware (as were the other police who were present) that the requirements of s 13 of the CCPA had not been met. In these circumstances, I am unable to accept the submission of senior counsel for the Crown that it is open to conclude that even without the intervention of the police the accused would have made the statements in any event. What was said by the accused was clearly provoked and encouraged by police.

It also significant that the recording of the statements made by the accused clearly stemmed from a direction by Det. Cashmere. That direction was given in circumstances where Det. Cashmere knew, not only that the requirements of s 13 had not been met, but that there would, as a result, be an issue as to the admissibility of any evidence so obtained. Whilst Det. Cashmere gave this evidence with considerable candour, its significance will be obvious.

It is also important to have regard to the purpose of the CCPA generally, and to the purpose of s 13 in particular. In setting out the principles relating to the exercise of functions under the Act, s 6(b) makes reference to the fact that children, because of their state of dependency and immaturity, require guidance and assistance. The protective nature of the CCPA is, in my view, a further circumstance which tends against the admission of the evidence.

Objections were taken to other statements made by the accused firstly at the Musalla at or about the time of his arrest, and subsequently at the police station.

The first concerns the statements made by the accused in [33] – [37] above. It will be evident that those statements were made by the accused following Det. Sutherland cautioning him in the terms set out at [29].

In this instance, the statements made by the accused did not come about as a consequence of any intervention or questioning by police. They were completely spontaneous utterances made by the accused after it had been made clear to him that he was not obliged to say anything if he did not wish to do so and that anything he did say would be recorded. The accused expressed a clear and unequivocal understanding of what he had been told in that regard. It follows that the circumstances in which these statements were made differ substantially from those previously considered.

For the purposes of s 13(1)(b)(i) of the CCPA and consistent with the views I have already expressed, I am satisfied that there was a proper and sufficient reason for the absence of a nominated adult.

Further, for the purposes of s 13(1)(b)(ii), I am satisfied that in the particular circumstances, these particular statements should be admitted in the proceedings. Those circumstances include, importantly, the fact that these statements were made without police intervention.

The second issue concerns the statements made by the accused to Con. El-Mir at the Bankstown Police Station which are set out in paragraphs [42] – [43].

It will be apparent from what I have already set out that by the time that these statements were made, a significant period of time had elapsed since the accused was cautioned and arrested. Clearly, no nominated adult was present as required by s 13(1)(a) of the CCPA. By this time, the police had ample opportunity to ensure that such arrangements were put in place. They could, for example, had put them in place whilst waiting at the Musalla or on route to Bankstown Police Station by contacting a parent of the accused and informing his or her of the necessity to be at the police station upon arrival. In these circumstances, I am not satisfied that the provisions of s 13(1)(b)(i) were met and accordingly, those statements should be excluded.

Khaled Ahmed (“Ahmed”) lived at the Musalla in 2016 and provided a statement to police on 12 October 2016. Commencing at paragraph 11, he stated that he woke up at 12 noon on that day and went to the bathroom of the Musalla, to find the door locked. He knocked on the door and heard two males answer:

Ahmed inquired as to who was there. He said that one man answered:

Mahmoud Madar (“Madar”), another resident of the Musalla, then came out of his room and knocked on the bathroom door saying:

Madar then walked back to his room whilst Ahmed continued to wait outside the bathroom door. Anmed described the bathroom door opening and two persons (conceded to be the two accused) walking out. In paragraph 13 of his statement Ahmed said:

In his statement (commencing at para 7) Madar said that he was alerted to Ahmed yelling in broken English:

Madar said he then walked out of his room and saw Ahmed standing near the bathroom door. Ahmed told him that two people were inside, whereupon Madar knocked on the door and said:

Madar explained in his statement that “ablution” is the requirement within the Muslim faith to wash before praying. He then said:

The principal objection to this evidence advanced by senior counsel for the accused was that it was not relevant to any fact in issue. It was submitted, in effect, that the evidence amounted to nothing more than evidence of two 16 year old boys spending time together in what was submitted to be an unremarkable set of circumstances.

Although not formally advanced in any notice of motion, counsel for the co-accused WE also made submissions in support of the exclusion of this evidence pursuant to s 137 of the EA. Whilst he accepted, as I understood it, that the evidence was relevant, he submitted that the fact that the two accused were in a locked bathroom was of little or no probative value, particularly in circumstances where they had been the subject of surveillance earlier in the day, and had been in each other’s company for some period of time. It was submitted that any probative value was outweighed by the danger of unfair prejudice, which was said to lie in the possibility that the jury could speculate as to what the accused were actually doing whilst in the bathroom. Counsel for WE submitted, in particular, that a jury may speculate that their presence in the bathroom may have had some “special” or “symbolic” meaning.

The Crown submitted that the evidence was highly relevant. It was submitted that the presence of the two accused in the bathroom shortly after the purchase of the weapons was a circumstance which supported the Crown case that they were engaged in acts in preparation for, or planning, a terrorist act involving the use of the weapons. In terms of s 137, the Crown submitted that whilst the evidence was obviously prejudicial, it was not unfairly so.

The terms of s 55 of the EA are wide. They require that there must be some rational effect on the assessment of the relevant probability, namely the probability of a fact in issue. That effect may be direct or indirect: Zaknic Pty Limited v Svelte Corporation Pty Limited (1995) 140 ALR 701; Privett [2001] NSWCCA 518. The width of the section is also evident from the fact that the word “could” as it is used in the section has been interpreted as meaning “it is possible that it may”: Nye v New South Wales [2002] NSWSC 1270. Further, and in the circumstances of the present case, it is important to bear in mind that the Crown relies on a series of circumstances to establish that the accused were engaged in planning or preparing for a terrorist act or acts. Those circumstances must be viewed as a whole and not in a piecemeal fashion: R v Hillier (2007) 228 CLR 618; [2007] HCA 13.

Bearing these matters in mind, the presence of the two accused in a locked room, in possession of the very weapons which the Crown will allege formed part of the planning for a terrorist act, is in my view a highly relevant circumstance, coming as it does against a background of the activities of the two accused earlier in the day which included the purchase of the knives in question. It follows that I am unable to accept the submission that the evidence has little or no probative value. The flaw in that submission arises from the fact that it was based upon the evidence being taken in isolation. That is not the correct approach. This evidence is not to be viewed simply as evidence of two persons in a locked room, divorced from the fact that they were in possession of weapons, and divorced from the circumstances which had occurred earlier in the day.

I am similarly not satisfied that there is a danger of unfair prejudice arising from a possibility that a jury may speculate as to the circumstances in which the accused were in the bathroom. The fact is that the jury will, in due course, will be directed as to the drawing of inferences. Inherent in those directions is a prohibition on speculation, as well as a direction that before an inference can be drawn against an accused, it must be the only rational inference available.

For all of these reasons, the evidence should be admitted.

There is evidence that whilst the accused HG purchased the knives, WE remained outside. It is the Crown case that a short time later, the accused disposed of a green pencil case and other items, for the purposes of making room in the backpack in order to conceal the knives.

The principal submission advanced by senior counsel for the accused was that the evidence of the disposal of the items was not relevant. It was submitted that the backpack containing the knives was retrieved at the Musalla, and that it was a “totally unremarkable circumstance” that other material had been discarded in a rubbish bin so as to make room for them.

The Crown submitted that the evidence was relevant because there was an available inference that the items were disposed of to allow concealment of the knives, in circumstances where, on the Crown case, an attack was imminent. The Crown further submitted that this evidence was be considered in the context of the evidence of other events on that day, including the purchase of the knives and the subsequent presence of each of the accused at the Musalla.

I have already observed that s 55 of the EA is couched in wide terms.

Bearing that in mind, in my view the evidence is plainly relevant. One of the facts in issue in the present case is whether the act(s) in which the accused are each said to have engaged were in preparation for a terrorist act or acts. Against the background of evidence of purchase of the knives, an act of concealment (that being a circumstantial inference) is plainly relevant to that issue within the meaning of s 55.

Accordingly this evidence should be admitted.

The Crown wishes to tender a photograph of the accused taken at a rally in which he participated in 2012 in which he is seen to be holding a sign bearing the words:

Senior counsel for the accused submitted that the evidence have little probative value as it may have was outweighed by the danger of unfair prejudice.

The Crown submitted that the evidence was probative of the accused’s long standing extremist ideology and that it was not unfairly prejudicial in the sense that it was opened to the possibility of misuse by the jury.

In my view the evidence is clearly relevant and admissible. It goes directly to the accused’s extremist ideology which is necessarily an issue in the trial. In my view, there is no danger of unfair prejudice in the sense that the material is opened by the jury.

Accordingly, the evidence will be admitted.

Immigration records establish that WE departed Australia on 22 November 2015 and returned on 31 January 2016. At the time of his departure, he had indicated on an outgoing passenger and that he intended to stay in Egypt for two months for the purpose of visiting friends and relatives.

At about 6.50pm on 20 January 2016 the accused was stopped by Egyptian authorities at an immigration detention facility at Cairo Airport. He was taken into custody and representatives of the Australian Embassy in Cairo were contacted for the purposes of consular assistance being provided. Dylan McDonald, the Secondary Secretary and Consul, attended the immigration detention facility in the company of another person, to whom I shall refer as “A”, had the task of collecting information relevant to security. Neither Mr McDonald nor A attended upon WE for the purposes of furthering any criminal investigation.

Mr McDonald and A spoke with the accused in a room within the immigration detention facility at the airport. No other persons were present. The door to the room was kept open at all times, although Egyptian authorities remained immediately outside the room. The discussion with WE was not electronically recorded, although Mr McDonald took notes which he used to prepare a report (shortly after returning to the Embassy) upon his return to the Embassy immediately thereafter. A also prepared a report outlining the detail of his attendance.

Mr McDonald later made two statements the first of which is dated 30 March 2017. In terms of his conversations with the accused, he said (commencing at para. 9):

In a supplementary statement of 25 June 2018, Mr McDonald stated (commencing at para. 7):

A also made two statements, the first of which is dated 11 January 2018. Commencing at para. 20, he stated as follows:

Counsel for the accused submitted that the evidence of the accused’s statements to Mr McDonald and A should be excluded pursuant to s 84 of the EA because the admissions made by the accused had been influenced by the violent, oppressive, inhumane and degrading conduct which he had being subjected to whilst he was in Egyptian custody. Counsel submitted that such conduct clearly fell within each and every one of the categories set out in s 84 and that, the issue having been raised, the onus fell upon the Crown to establish that any admissions made by the accused were not so influenced. In this regard, it was submitted by counsel for the accused that any reliance by the Crown upon the fact that the statements had been made freely and voluntarily was irrelevant, having regard to the test imposed by s 84.

Counsel for the accused also pointed to a number of other factors which, he submitted, strongly suggested that anything said by the accused had been influenced in the manner contemplated by s 84. They included the fact that:

The Crown made it clear that it did not propose to adduce evidence of any information provided by the Egyptian authorities regarding the circumstances of WE’s detention, nor of anything said by WE whilst he was in their custody. It was also made clear that the Crown sought to adduce evidence only of what WE told Mr McDonald and A about the fact and location of his arrest, and his reasons for travelling to that location.

The Crown submitted that the evidence was clearly relevant and that when taken with other evidence to be adduced by the Crown, established that WE strongly identified with militant jihadism, and did so to an extent which was sufficiently strong to motivate him to leave his family and travel to an area known to be (and known by him to be) a stronghold of IS. It was further submitted that, together with other evidence of WE accessing extremist material, the evidence of what he had told Mr McDonald and A was capable of rationally affecting the assessment, by a jury, of the probability that his activities with HG on 12 October 2016 were activities in which he had engaged with the intention of advancing the political, religious or ideological cause of extremist Islam.

The Crown further submitted that the statements made by WE to Mr McDonald and A, the fact and location of his arrest in Egypt, and the reasons for his travel, were adverse to his interests in the proceedings and therefore admissible pursuant to s. 81 of the EA. It was submitted that whatever may have been asserted by WE about his mistreatment at the hands of Egyptian authorities, it was apparent that he was sufficiently comfortable to tell Mr McDonald and A about aspects of that mistreatment, leading to a conclusion that the statements made by him were made freely and voluntarily. It was further submitted that in circumstances where contemporaneous records were made by each of Mr McDonald and A shortly after their return to the Embassy there was no room for any suggestion that there had been any concoction or recent invention as to the substance of what WE had said.

I am satisfied that in the period leading up to his conversation with Mr McDonald and A, the accused had been subjected to conduct, which could be appropriately described as violent, oppressive, inhumane or degrading, at the hands of the Egyptian authorities. The Crown did not submit otherwise. In these circumstances, the Crown accepted that the issue had clearly been raised. Accordingly, the question for determination is whether the Crown has satisfied me that the admissions made by the accused were not influenced by the conduct in question.

The term “influenced by” in this context was considered by the Court of Appeal in Habib v Nationawide News Pty Limited (2010) 77 NSWLR 299; [2010] NSWCA 34. At [238] the Court (Hodgson, Tobias and McColl JJA) observed that the Macquarie Dictionary Online defined the word “influenced” to mean:

Their Honours also observed that the Oxford English Dictionary Online defined “influence” as:

Having cited these definitions, the Court observed that neither evoked a particularly high test of causation.

The Court also rejected the proposition that the conduct in question was required, for the purposes of s 84, to fall at a significant level of impropriety: R v JF [2009] ACTSC 104 at [37] per Refshauge J. The Court generally accepted the proposition that the test for determining any causal relationship between the conduct on the one hand, and the admission(s) on the other, was not a stringent one, and did not require the identification of a single reason, a single event or incident, or a single instance of conduct, which had provoked it; R v Zhang [2000] NSWSC 1099 at [44] per Simpson J (as her Honour then was), cited with approval in Higgins v R [2007] NSWCCA 56 at [26] per Hoeben J (as his Honour then was); see also R v JF (supra) at [32].

In my view, it is particularly significant that the accused told Mr McDonald and A that he did not feel safe talking about these matters in Egypt due to fear of repercussions, but would be happy to talk about them further in Australia. The obvious inference to be drawn from that statement is that the conduct to which the accused had been subject necessarily influenced everything that he was telling Mr McDonald and A at this time.

Given that, I cannot be satisfied that the making of the admissions was not influenced by the conduct which the accused described. In light of the provisions of s 84 of the EA, the evidence should be excluded.

Material was found on mobile telephones and computers which, on the Crown case, were connected to, and used by the accused. The Crown relies upon this material as being relevant to the accused’s intention, and his ideology. On the Crown case, the evidence establishes that:

I stress that this is a sample of the material only.

Counsel for the accused submitted firstly, that in relation to the entirety of the material located across the three devices the evidence was not relevant to prove the state of mind of the accused at the time of the commission of the offence. It was submitted that the material in question was effectively obtained and accessed a considerable time prior to October 2016, and that in these circumstances there was an available inference that none of the material had ever been viewed by the accused at or about the time of the commission of the offence. The essence of the submission advanced on behalf of the accused was that the evidence was “lacking in the continuity” which was required in order to make it relevant.

Counsel further submitted that the circumstances surrounding the seizure of one of the devices on which material was found were such that there was an available inference that a person other than the accused had used that phone at material times.

The Crown submitted that the evidence was relevant because it established a significant and continuing interest on the part of the accused in what was described as extremist militant Islam. The Crown submitted that in these circumstances, the evidence was capable of rationally affecting the jury’s assessment of the fact that WE engaged in the events of 12 October 2016 with the intention of advancing the political, religious or ideological cause of militant extremist Islam.

The Crown submitted that the probative value of the evidence was high, and that it was not unfairly prejudicial. The Crown submitted, in particular, that there was no danger that the jury might use the evidence for some improper purpose or engage in an improper line of reasoning.

In my view, the evidence is clearly relevant and admissible as going to the accused’s extremist ideology. There is sufficient evidence to link the accused to each of the devices on which such material was found. To the extent that counsel for the accused submitted that there was no evidence that any of the material had been viewed by the accused, such a proposition is answered by the judgment of the Court of Criminal Appeal in Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206 at [442] where it was said:

For these reasons the evidence is admissible.

At the conclusion of my determination of the various pre-trial issues outlined above, counsel for the accused WE made an application for a trial separate from HG. No similar application was brought on behalf of HG. WE’s application was opposed by the Crown.

Counsel for the accused advanced two fundamental submissions in support of the application.

Firstly, he submitted that the evidence which was relied up by the Crown to prove the accused’s ideology state of mind was significantly weaker than that relied upon to prove the ideology and state of mind of the accused HG.

Secondly, he submitted that the evidence sought to be relied upon by the Crown to prove the state of mind of HG was highly prejudicial to WE, to the point that there was a real risk that the admission of that evidence would make the Crown case against WE immeasurably and impermissibly stronger.

In developing these submissions, counsel for the accused submitted that there was a large body of evidence which was relevant to proving the intention and state of mind of HG which was inadmissible against WE. He submitted that this included evidence of:

Counsel submitted that in these circumstances the evidence to be relied upon by the Crown to prove HG’s state of mind was significantly more probative, significantly more extreme, and significantly stronger than that relied upon by the Crown against WE. He submitted that in these circumstances, it would be impossible for a jury to “compartmentalise” the evidence against each accused when considering the inferences that could be drawn from it. It was further submitted that it would be impossible for a jury to exclude from their thinking what was submitted to be the “cumulative effect” of the evidence against HG when considering the relevance of individual pieces of evidence, and its cumulative effect, in the case against WE.

Counsel submitted that in these circumstances, there was a real danger that the jury would, consciously or unconsciously, be influenced by such cumulative effect. It was submitted that the case against WE was much weaker than that against HG, but would be made immeasurably stronger if the two accused were tried together and the jury heard the evidence which was admissible only against HG. It was submitted that in these circumstances, and in the interests of justice, the trials should be separated.

The Crown submitted that application of the general principles pertaining to an application for a separate trial supported a conclusion that the accused should be tried jointly. Whilst acknowledging that there was some evidence which was admissible only against HG, the Crown submitted that such evidence was confined, and able to be clearly identified and compartmentalised. The Crown further submitted that any issues could be overcome, firstly by reminding the jury as particular evidence was tendered that it was only to be considered in the case against HG and secondly, by directions to a similar effect in my final summing-up.

Section 21 of the Criminal Procedure Act 1986 (NSW) (“the CPA”) is in the following terms:

In R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965, I summarised (commencing at [61]) the general principles which govern the discretion to make an order for separate trials:

Bearing in mind those principles the following observations may be made in respect of the present application.

Firstly, and for the reasons that I have already expressed, I have excluded all but a very small portion of the evidence of statements made by the accused HG at the time of his arrest.

Secondly, whilst there will be evidence regarding HG’s behaviour at school which the Crown will lead as being relevant to his ideology, that evidence is limited, and easily identified. In any event, similar evidence is sought to be tendered against WE.

Thirdly, evidence of HG’s attendance at the rally in 2012 is, as I understand it, confined to a single photograph.

Fourthly, electronic material upon which the Crown will rely is not limited to its case against HG. There is, as I have already outlined, a considerable body of similar evidence to be relied upon by the Crown against WE which, for the reasons I have stated, is admissible against him.

Fifthly, in terms of the handwritten notes found in HG’s cell, two observations may be made. Firstly, not all of the notes expressed extremist views. Secondly, that evidence is completely confined and obviously amenable to a clear direction to the jury that it is not to be considered in the case against WE.

As I have previously noted, as a general proposition a crime which is alleged to have been committed jointly should be prosecuted in a joint trial. Strong reasons of principle and policy point to that conclusion.

Whilst an exception to that general rule arises in circumstances where there is a real risk of positive injustice to an accused, I am not satisfied that any real risk exists in the present case. Whilst there is obviously evidence which is admissible only against HG, that evidence is, as I have pointed out, capable of clear definition, and is obviously amenable to a direction being given to the jury that it can only be taken into account in its consideration of the Crown case against that particular accused. This is not a case, in my view, where the evidence which is admissible against WE is significantly different to, and or weaker than, that which is admissible against HG.

For all of these reasons, the application for a separate trial should be refused.