R v Taleb

1. [1]

   Moudasser Taleb is charged with an offence that might shortly be described as doing acts preparatory to engaging in hostile activity in a foreign country. This is an offence against s 119.4 (in combination with s 119.1) of the Criminal Code 1995 (Cth). Mr Taleb has raised a number of objections to parts of the evidence that the prosecution seeks to adduce. Four witnesses were examined and around 3000 pages of material was tendered on the voir dire. Submissions were made over four days. The empanelment of a jury was deferred until the issues were resolved. This judgment was prepared in a hurry. [1] Some of the issues do not lack in complexity.

The objections in a nutshell

1. [2]

   The objections fell into the following categories: [2]

   1. (1)

      An objection to evidence gathered under a “cross-border controlled operation” authority under the Law Enforcement (Controlled Operations) Act 1997 (NSW) (‘LECO Act’) granted on 24 March 2017 (‘the authority’). This mainly concerned the evidence of an undercover police officer (‘UCO’) and related messages and recorded conversations between the UCO and Mr Taleb. This argument was multifaceted; it involved the construction and interaction of two pieces of legislation and a close consideration of the actions of the accused and the UCO. The argument was discursive and involved the contention that the evidence was improperly or unlawfully obtained because:

   2. (2)

      An objection to evidence gathered under a Commonwealth controlled operation certificate. This objection was not pressed once Queens Counsel for Mr Taleb realised the factual basis of the objection was misconceived.

   3. (3)

      An objection to an electronically recorded interview with the accused (‘ERISP’). This was on the basis that the evidence was improperly obtained because the accused indicated that he wished to exercise his right to silence and the investigators continued to question him.

   4. (4)

      An objection to recordings obtained by telephone intercepts on the ground that the warrants granted under the Telecommunications (Interception and Access) Act 1979 (Cth) (‘the T/I Act’) were invalid or, in the alternative, that they were valid only for a period of 45 days.

   5. (5)

      An objection to material extracted from the accused’s mobile telephone. This included many images, videos and other items extracted from his ‘phone that the prosecution says demonstrate an interest in, or support of, radical Islam and Jihad. It also included a DVD which recorded one of the detectives being filmed while interrogating the telephone and looking through various files, some of which may be relevant on the same basis. This DVD was made on the Friday before the trial was due to commence. The accused’s lawyers were made aware of it after close of business on the Friday and given the opportunity to view it over the weekend before the voir dire commenced. The objection to the ‘phone material was on two broad bases. First, it was submitted that the provenance of the material was not established in that there was no evidence proving that Mr Taleb was responsible for downloading (or uploading) this material or that he had ever viewed, let alone approved of, the things depicted in the material. Second, it was submitted that the probative value of the evidence was outweighed by the danger of unfair prejudice because of the distressing nature of the material. In the final hour of the voir dire, after seven days of evidence and argument, the prosecution advised the Court (and presumably the defence) that it proposed to present the material in a way that would reduce the potential for prejudice. For example, the Court was told that various videos said to depict people being executed by decapitation would be stopped at the critical moment and a police officer would tell the jury that there was then a beheading or, in some cases, the screen would go black and there would be words to a similar effect.

   6. (6)

      An objection to material located on a Facebook account maintained by the accused. This objection was based on the absence of evidence that the accused approved of the material or was responsible for downloading it to his account. There was also an objection to the evidence on the basis that the officer through whom it is to be presented lacked the necessary expertise to provide opinion evidence.

2. [3]

   Senior Counsel for the prosecution pressed for the admission of the material while making some concessions in relation to the difficulties that exist in the evidence itself, and acknowledging the complexity and (possible) ambiguity of the legislation. I was told, and accept, that there has already been a significant reduction of the material that is to be placed before the jury. For example, the accused’s telephone contained thousands of videos and picture files but the prosecution only presses a select number of these. The Prosecutor advised the Court that large parts of the evidence tendered on the voir dire would not be adduced before the jury. The Prosecutor also indicated ways in which the material would be presented to reduce any potential for prejudice.

3. [4]

   The Prosecutor submitted that, even if impropriety and unlawfulness was established in the way any, or all, of the evidence was obtained, the evidence ought still to be admitted pursuant to s 138 of the Evidence Act 1995 (NSW).

4. [5]

   Without meaning to level criticism at the lawyers, there were problems with the way in which the voir dire was conducted. This caused delay and created difficulty in making decisions quickly. It resulted in a significant increase in the estimated length of the voir dire and the trial proper. Jury panels have been delayed on several occasions. Working out exactly what had to be decided was, at times, like grappling with smoke. A problem for both sides was that counsel changed in the weeks leading up to the trial. Both Senior Counsel for the prosecution and Queens Counsel for the accused came into the case very late. As a result, the voir dire was conducted in a somewhat haphazard manner, an excessive amount of material was tendered and most of it was not subject of submissions. Hundreds of pages not to be adduced at the trial were tendered on the voir dire. Additional material was tendered after the evidence had closed and well after the parties commenced their submissions. [3] The nature and content of the objections taken by the defence changed over the course of the voir dire. The content of what is to be tendered (at trial) by the Prosecutor, the basis upon which it is to be tendered, and the steps designed to minimise the prejudice occasioned by the more graphic material only became known towards the end of the Prosecutor’s submissions.

5. [6]

   The prosecution case is that from February to June 2017, Mr Taleb intentionally did a number of acts, (reckless as to whether they were) in preparation to travel overseas and fight with ISIS in Syria. It is unclear on the evidence how he first came to the notice of police as somebody who may engage in terrorist activities. However, by early 2017 (and possibly earlier), a police investigation into his activities had commenced. This investigation continued, in various forms, until Mr Taleb was arrested on 15 June 2017.

6. [7]

   On 11 January 2017 Detective Sutherland interrogated the Facebook account operated by the accused. [4] On 17 January 2017 police attended the area of Mr Taleb’s home in Panania and took a number of photographs. [5] On the evidence before me, these appear to be the first steps taken in the investigation into Mr Taleb’s activities.

7. [8]

   On 25 January 2017, investigators obtained (from a senior police officer) a cross-border controlled operation authority CB CO 17/023 under the LECO Act. [6] That authority was varied twice and the operation pursuant to that authority was concluded on 24 March 2017 because “the non-evidentiary phase of the operation ceased with the intention of commencing an evidentiary cross-border operation”. [7] The prosecution does not seek to adduce any evidence gathered during this “non-evidentiary” phase.

8. [9]

   On 3 February 2017, a warrant authorising intercepts of Mr Taleb’s telephone calls was issued. This warrant expired on 30 March 2017. On 28 March 2017, a further warrant was issued authorising intercepts until 15 June 2017. A number of calls were intercepted between Mr Taleb and other people between 8 February 2017 and 16 April 2017. [8]

9. [10]

   On 24 March 2017, another application for an authority to conduct a cross-border controlled operation was made. [9] At 3:40pm on that day, a senior police officer granted ‘Authority to Conduct a Cross-Border Operation CB CO 17/097’. [10] The UCO made contact with the accused later that day and, over the next two months or so, there were a number of “deployments” of the UCO. [11] There was an ongoing exchange of “chat” on an application called “Telegram” and there were meetings on 5 April 2017, 7 April 2017, 13 April 2017, 3 May 2017 and 5 June 2017. The conversations between the UCO and Mr Taleb were recorded pursuant to the cross-border controlled operation authority. [12]

10. [11]

    On 20 April 2017, a federal police officer made an application for a “Formal Authority for a Major Controlled Operation” under Part 1AB of the Crimes Act 1914 (Cth). [13] This authorised the same UCO to engage in similar conduct as the earlier NSW cross-border controlled operation authority. The circumstances surrounding this application are somewhat mysterious and, assuming the validity and legitimacy of the NSW authority, it is unclear why it was considered necessary or desirable to make it. It purported to authorise the same NSW UCO to engage in the same type of conduct. Detective Goodhew, who gave evidence on the voir dire, said that he was not involved in the application for the authority but was aware that it was being drafted. [14] In any event, the authority was granted on 20 April 2017 (although it is erroneously dated 20 July 2017, the day after it expired). [15] A sceptical view might be that investigators realised a Commonwealth authority was necessary because they were not, in reality, investigating a NSW offence (a statutory pre-requisite to act under an authority under the LECO Act). However, no such submission was made and it was not put to any police officer that the Commonwealth authority was sought in order to patch up the problems that might be said to attend the operation being conducted under the LECO Act.

11. [12]

    On 15 June 2017, Mr Taleb was arrested at Sydney airport. [16] An ERISP was commenced at 11:43am and concluded at 3:29pm on 15 June 2017. [17]

The controlled operation authorities

1. [13]

   There were three controlled operation authorities, two (or four if one counts the variations to the first authority) under the LECO Act and one under the Crimes Act 1914 (Cth).

2. [14]

   The first, CB CO 17/023, was applied for and granted on 25 January 2017. [18] The operational plan for that authority expressed the aims of the investigation as follows: [19]

3. [15]

   When this authority was varied on 16 February 2017, the aims and objectives had expanded as follows: [20]

4. [16]

   A report on this authority prepared on 5 May 2017 included: [21]

5. [17]

   This material has some relevance to objections raised to the evidence gathered under CB CO 17/097, and that part of the objection that maintains that the NSW police were improperly investigating a Commonwealth offence. In particular, the report (in paragraph 10) does not suggest that any evidence was located that suggested Mr Taleb was a member of a terrorist organisation (an offence under NSW law). [22] On the other hand, paragraph 9 of the report makes it clear that the next phase of the operation would seek to gather evidence of, amongst other things, whether he was a member of a terrorist organisation.

6. [18]

   On 24 March 2017, Detective Goodhew made an application for controlled operation authority CB CO 17/097. [23] This application set out some of the evidence gathered by telephone intercepts. It said that the investigation was to “obtain details about Taleb’s intentions to travel, his allegiance to any proscribed terrorist organisation/s and any plans and/or preparatory acts Taleb has undertaken to travel overseas to engage in hostile activities.” (Emphasis added.)

7. [19]

   Detective Goodhew expressed the belief that “the cross-border controlled operation will be, or is likely to be, conducted in this jurisdiction and in one or more participating jurisdictions.” He stated the “grounds for this suspicion” as follows: [24]

8. [20]

   The aims and objectives were stated in the operational plan as follows: [25]

9. [21]

   The authority itself stated that the issuing officer was also satisfied that: [26]

10. [22]

    The authority purported to authorise Detective Goodhew to conduct a controlled operation:

11. [23]

    There was never an intention to investigate in Victoria and no material that would explain why the authority purported to authorise such activity. Detective Goodhew said in evidence this was a “typographical error” that had been made by the legal consultants preparing the authority. [27] The Prosecutor could not explain the mistake.

Mr Taleb’s radicalism and diffidence

1. [24]

   The evidence as to Mr Taleb’s intention to travel to Syria is at times contradictory. This is relevant, factually, to one of the arguments made on his behalf, namely that he would not have done the things he did but for the encouragement of the UCO. Ultimately, his intentions will be a question for the jury to consider. However, in resolving the question whether the police essentially induced an “unwary innocent” [28] to commit a crime he would not otherwise have committed, it is necessary to refer briefly to some of the evidence gathered before and during the controlled operation.

2. [25]

   The evidence of Mr Taleb’s interest in radical Sunni Islam, Islamic State and the conflict in “The Levant” appears to be strong. Telephone intercepts show him expressing radical and frightening views and the material on his telephone and Facebook profile demonstrate a strong and partisan interest in the centuries old disputes between Shi’a and Sunni Muslims and a disdain for those who are considered to be nonbelievers.

3. [26]

   However, the evidence also reveals occasions when Mr Taleb exhibited diffidence towards travelling overseas. It is evident that he had concerns about leaving his mother, who has Multiple Sclerosis and was being cared for in a nursing home. In conversations with the UCO, Mr Taleb seemed reluctant to leave his mother and sought reassurance from the UCO and ‘the brothers’ that it was okay to do so. The following exchange occurred at the first meeting between Mr Taleb and the UCO: [29]

4. [27]

   In the course of the second deployment, the UCO told the accused that ‘the brothers’ had said “as long as she’s being cared for…that’s, it’s alright”. [30] The UCO told the accused that it’s up to him whether he stayed for his mum, to which Mr Taleb responded “no, no I just wanted to know what comes first”.

5. [28]

   It is clear from these conversations that Mr Taleb experienced some uncertainty about going overseas while his mother was unwell and was concerned that he shouldn’t be leaving her. On the fourth deployment, the UCO asked the accused to consider what would happen if he got turned away at the airport and the following interchange occurred: [31]

6. [29]

   During the later stages of the operation, the accused continued to show a degree of reluctance. On the fifth and final deployment, he again raised concerns about leaving his mother: [32]

7. [30]

   At the time of the undercover operation, Mr Taleb had not pledged his allegiance to any particular group which, according to a report of Dr Shanahan tendered by the prosecution, [33] was a requirement to becoming “what would be traditionally considered to be member” of the Islamic State: [34]

8. [31]

   Despite this, Dr Shanahan’s view was that the accused’s “statement that he wishes to fight for Islamic State is consistent with that organisation’s options for individuals to express their commitment to them.” [35]

9. [32]

   Over the course of the operation, Mr Taleb appeared to be perplexed about the group to which he should pledge allegiance and where to travel without options being given to him: [36]

10. [33]

    On the other hand, it is evident that Mr Taleb already had a desire to travel overseas (inferentially at least, to fight) when he was put in contact with the UCO. In the first deployment, Mr Taleb told the UCO that he needed help with “Hirajah (migration)”. [37] The accused also spoke to the UCO of a previous attempt at Hirajah that had fallen through as a result of his marriage problems. In the second deployment, Mr Taleb told the UCO that he was ready to go “a month, like a couple of months ago”. [38]

Evidence gathered under the controlled operation authority and acts done in preparation to travel overseas

1. [34]

   CB CO 17/097 was authorised on 24 March 2017 and the first reported contact between the UCO and Mr Taleb occurred at 7:16pm on that date via the Telegram messaging app. The UCO introduced himself as being “from the pest control service” and suggested they catch up to discuss a “new job” he might be able to help the accused with, to which Mr Taleb replied “…he said you could help me out with getting to the jobsite”. [39] Between 24 March and 5 April 2017 numerous Telegram messages were exchanged culminating in the first deployment on 5 April 2017 when the accused and the UCO met in North Parramatta. [40]

2. [35]

   During the first deployment the accused told the UCO that he didn’t have money himself but that his cousin was going to help him to organise the funds to travel. The UCO told Mr Taleb to “train at home” and to make sure he was “good with” the boots he owned as people who didn’t know how to walk in the boots could “fuck up their feet”. Mr Taleb said that he had been walking “here and there”. [41]

3. [36]

   Between 6 and 7 April 2017 various Telegram messages were exchanged to organise the next meeting to which the UCO told Mr Taleb to bring his boots and winter clothes. [42]

4. [37]

   The second deployment occurred on 7 April 2017. The accused showed the UCO thermals, gloves and a jacket that he had “prepared from last time”. The UCO then spoke of the need for the accused to have gloves and a sleeping bag: [43]

5. [38]

   In the course of this deployment the UCO told Mr Taleb that he would need more thermals and pants and that he should look for a solar powered phone charger. He told the accused that “over there” he would need to carry a heavy backpack long distances and he should walk in the boots and with a backpack (filled with weights or sandbags) to “get used to it”. The UCO spoke of the need to buy a return airline ticket and come up with a cover story to avoid suspicion. Mr Taleb indicated that he was still hoping to get money from his cousin. [44]

6. [39]

   On 10 April 2017 the UCO and Mr Taleb planned their next meeting via Telegram and the third deployment occurred on 13 April 2017. In the course of this meeting, the accused said that he had been doing “them long walks” with a weighted backpack, had “got that sleeping bag” and “got that solar panel charger” as well as more thermals and clothes. When questioned about money, Mr Taleb said he was meeting with his cousin that day. The accused said he wasn’t sure where he wanted to go and the UCO told him “you have to decide, brother. You have to tell me.” Mr Taleb settled on Sham and the UCO told him that he would soon need to send money through Western Union. The UCO told him that when he got the contact, “I’ll let you know the name to send it to. Three hundred dollars”. [45]

7. [40]

   Between 14 April and 3 May 2017 the accused and the UCO communicated via Telegram. On 15 April 2017 the UCO provided Mr Taleb with the name of the Western Union account that he was to provide the $300 to for “help on the other end”. On 25 April Mr Taleb messaged the UCO to tell him that he went to transfer the money but his license had expired so they didn’t accept it. In the same conversation Mr Taleb indicated that he should have more money from “the brother helping me out” soon. On 27 April 2017, Mr Taleb messaged the UCO to tell him that the $300 had been sent and provided him with the secret question and answer necessary to access to it. Another meeting was organised. [46]

8. [41]

   The fourth deployment occurred on 3 May 2017. The accused told the UCO that he had ordered tactical gear from the internet and that his cousin hadn’t sent him the money and kept “delaying” him. [47]

9. [42]

   After the fourth deployment, the accused and the UCO exchanged messages via Telegram between 9 May and 5 June 2017. On 11 May, the accused messaged the UCO asking whether any of the brothers would be willing to help out with money because “the bloke that was helping me changed his mind”. On 16 May the UCO told the accused that the brothers were willing to pay for his ticket. On 30 May the accused told the UCO “Inshallah I wanna get outta here asap”. A further meeting was planned and the UCO told the accused to bring his passport so a ticket could be arranged. [48]

10. [43]

    On 5 June 2017, the UCO and the accused met again (the fifth deployment). Mr Taleb brought his passport to the meeting and the UCO said that he would send the details to the brothers to book the tickets, following which he would send the accused step by step instructions. Mr Taleb told the UCO he would try his best to get money to which the UCO replied “It’s all right. We’ll sort it out. You…just tell me what you, you think you’ll need and then I’ll sort it out for you”. [49]

11. [44]

    Between 8 June and 15 June 2017 the UCO and Mr Taleb communicated via Telegram about the accused’s travel plans. On 9 June the UCO told Mr Taleb that the brothers had booked his flight for the following Thursday (15 June). On 14 June the UCO sent him instructions for the following day, including when to arrive at the airport, and which gate the UCO would meet him at. At 8:48am on 15 June the accused sent the UCO a message to say that he was getting a taxi and was on his way. Mr Taleb was arrested at the airport. [50]

Overview

1. [45]

   The objection to the evidence gathered under CB CO 17/097 had many aspects to it. At its core was a submission that the NSW police could not be authorised under the LECO Act to investigate a Commonwealth offence. There was ambiguity and inconsistency in some of the submissions. At one stage, it was submitted that the suggestion that police were investigating a NSW offence was “window dressing.” [51] Another aspect concerned the failure of the Detective to advise the issuing officer of matters tending to exculpate Mr Taleb and suggest he was not a terrorist. [52] On the other hand, Queens Counsel went on to eschew any suggestion that the police were lying or deliberately behaving improperly. [53] I find it difficult to reconcile these submissions. There are some fundamental issues at stake in terms of the reach and scope of the authorities under the LECO Act and the submission was that the only proper authority, when NSW police are investigating a Commonwealth offence, was a controlled operation authority obtained under the Crimes Act 1914 (Cth).

2. [46]

   On 12 February 2017, Mr Taleb had a long and discursive telephone call with a young woman called Jihan Ghazzaoui. This conversation, along with a number of others, was intercepted and recorded. The prosecution relies on parts of these conversations to establish the accused’s interest in radical Islam and desire to travel to Syria to join Islamic State. Putting to one side the submission that the warrants purporting to authorise the interception of these calls were invalid, Queens Counsel relies on some of the things said to found a submission that Mr Goodhew failed to provide the issuing officer with all of the relevant information. In particular, it was submitted that the issuing officer should have been told that Mr Taleb specifically said “I’m against terrorism” and that “terrorism … wrecks the name of Islam. It makes Muslims look bad.”

3. [47]

   The application for CB CO 17/097 contained a relatively lengthy narrative as to the grounds of Mr Goodhew’s suspicions: [54]

4. [48]

   When challenged as to why this narrative did not include reference to the fact that Mr Taleb had said that he was against terrorism, Mr Goodhew gave the following evidence: [55]

5. [49]

   To examine and understand the assertion that the comments were not genuine, it is necessary to set out an extended portion of the passage from the telephone intercept in which Mr Taleb said that he was against terrorism: [56]

6. [50]

   This portion of the telephone intercept was played in court. [57] The transcript indicates in bold where words were spoken in Arabic.

7. [51]

   The LECO Act provides for applications for authorities to conduct cross-border controlled operations in ss 20C and 20D. The Prosecutor drew my attention to the relevant regulations. [58] Regulation 10 refers to the code of conduct in Schedule 2. The code of conduct provides that the applicant for an authority must “at all times act in good faith” [59] and that “the applicant must ensure that the application”: [60]

8. [52]

   Mr Goodhew was not really challenged as to whether he acted in good faith. Rather, the suggestion was that he should have disclosed that part of the conversation set out above because it could have affected the way the application would be determined.

9. [53]

   I accept that it would have been better if Mr Goodhew had disclosed those parts of the conversations when making the application. Even so, in the absence of any clear challenge, I accept that he genuinely believed that Mr Taleb’s comments about being “against terrorism” and terrorism giving Muslims a bad name were said in jest or sarcastically. The context might suggest that. The comments came very soon after Ms Ghazzoui asked about fighting and immediately said “that’s not even good to say over the phone”. The subsequent comment that the “American Government” is “the hope of humanity” smacked of sarcasm.

10. [54]

    Further, there were many other matters recorded in the ‘phone calls that placed Mr Taleb in a worse light and these were not emphasised in the applications. These included references to butchering people, showing no mercy and being at war with the [Shi’a] dogs.

11. [55]

    The practical reality is that Mr Goodhew was attempting to summarise many hours of telephone intercepts into around one page of the application. I am not satisfied that Mr Goodhew (i) breached the code of conduct in failing to refer to the particular portion where Mr Taleb said he was against terrorism or (ii) acted improperly or unlawfully in failing to disclose that information.

Did the controlled operation commence before the authority was granted?

1. [56]

   It was submitted that the police commenced the operation before CB CO 17/097 came into effect. I reject this submission. It is based on a misunderstanding of the evidence.

2. [57]

   The authority was granted at 3:40pm on 24 March 2017. At 7:16pm that day the UCO made contact with Mr Taleb through the Telegram app on their respective mobile ‘phones.

3. [58]

   The defence submission is that an inference can be drawn that the operation must have started before the authority was granted because this kind of contact was not to occur until Phase 3 of the operation as set out in the Operational Plan. [61] Phase 3 was: [62]

4. [59]

   However, Phase 1 of that plan was: [63]

5. [60]

   That is what the UCO did. He did it about 3 ½ hours after the authority was granted. It is clear that there had been some earlier communication between Mr Taleb and somebody else because a certain code was used. For example, the UCO said he was from the “pest control service” which seemed to be by way of introduction. It is no secret that there was an earlier (“non-evidentiary”) phase of the investigation that was authorised by an earlier cross-border controlled operation authority. [64] None – or very few – of the details of that earlier investigation are in evidence. The fact that the conversation (or “chat”), at least inferentially, escalated quite quickly does not give rise to an inference that Phases 1 and/or 2 had been carried out before the authority was granted.

The validity and scope of a cross-border controlled operation authority under the LECO Act when police are investigating a Commonwealth offence and the operation is wholly within the borders of NSW

1. [61]

   The central questions on the voir dire concern the extent to which a cross-border controlled operations authority under the LECO Act can authorise the investigation of a Commonwealth offence and whether an authority so described necessarily involves an investigation which actually crosses a border. The issues go to the heart of the submissions concerning the validity of the authority CB CO 17/097, indeed the statutory integrity of the whole investigation, and are most conveniently considered together. Because of the complexity of the legislative scheme, and the ambiguity and (if the Prosecutor’s construction is accepted) misuse of the phrase “cross-border”, they are difficult to apply to the facts of this case. The difficulty is highlighted by the “typographical” error that resulted in the authority purporting to authorise activities in Victoria when there was never any intention for action to be taken outside the borders of New South Wales.

The history and terms of the legislation

1. [62]

   The LECO Act was one of a number of enactments introduced after the High Court’s decision in Ridgeway v The Queen. [65] Ridgeway decided that there was no substantive defence of entrapment recognised in Australian law. However, where evidence is obtained as a result of criminal conduct on the part of police investigators – in particular, where police officers incite, encourage or facilitate the commission of the offence – such evidence might be excluded in the exercise of discretion. The common law discretion then under consideration (sometimes referred to as the Bunning v Cross discretion) [66] has been superseded by s 138 of the Evidence Act.

2. [63]

   While the NSW parliament passed the LECO Act, the Commonwealth introduced “Part 1AB – Controlled Operations” to the Crimes Act 1914 (Cth). Other legislation came into force in other states.

3. [64]

   All of this legislation is designed to protect law enforcement officers from criminal liability when taking part in sanctioned investigations. It also ensures that evidence gathered in such investigations, when authorised by authorities validly issued under the various statutes, is not subject to discretionary exclusion on the grounds that it was improperly or unlawfully obtained. While there are definitions in the various statutes, speaking generally a “controlled operation” is an investigation or police operation where investigators encourage, incite or assist a target to commit a criminal offence or facilitate the commission of the offence. Such conduct would ordinarily constitute a crime. The legislation allows such conduct to be sanctioned (generally in advance) to ensure the evidence so obtained is not tainted by illegality and the officers involved are not subject to punishment.

4. [65]

   The legislation provides limits, guidelines and parameters over these controlled operations. Section 7 of the LECO Act sets out a number of things that are “not to be authorised”. One of these is that the conduct cannot be authorised if it is “likely to seriously endanger the health or safety of” the participants or any other person: s 7(1)(b). This prohibition was considered in Gedeon v NSW Crime Commission. [67] In that case, a controlled operation authority purported to sanction the uncontrolled distribution of a large quantity of cocaine that had come into the possession of the NSW Crime Commission. The High Court held that the authority was invalid because it was not open to the Commissioner to form the view required by s 7(1)(b).

5. [66]

   The LECO Act is designed, at least primarily, to sanction certain controlled operations conducted by NSW law enforcement officers when investigating NSW offences. Part 2 of the Act concerns what the Prosecutor referred to in argument as “garden variety” controlled operations – that is, operations where NSW Police are investigating strictly NSW offences and there is no prospect either that other jurisdictions will be involved or the investigation will occur outside NSW. Part 3A relates to “cross-border controlled operations” and allows the NSW Police Commissioner or their delegate to issue a “cross-border controlled operation” authority.

6. [67]

   Before an authority under part 3A can be granted, there must be an investigation into a “relevant offence”. [68] Relevant offence is defined in s 20B(1) as:

7. [68]

   Section 3 of the LECO Act provides that “this jurisdiction means New South Wales.”

8. [69]

   A cross-border controlled operation is defined in s 3 of the LECO Act as:

9. [70]

   Section 3 also provides that a ‘participating jurisdiction’ means “a jurisdiction in which a corresponding law is in force” and that ‘corresponding law’ means “a law of the Commonwealth, or of another State or Territory, referred to in Schedule 1.” The prosecution relies on this sequence of definitions to submit that a cross-border controlled operation may arise where the operation engages the laws of two jurisdictions even though the operation will be conducted (geographically) entirely within New South Wales. [69]

10. [71]

    Sub-sections 3(2) and 3(3) provide:

11. [72]

    On one reading, probably the most natural reading, Part 3A is concerned with investigations into NSW offences where part of the investigation may take place outside of NSW. That is, the Part is designed to apply to an investigation that crosses the NSW border into the territory of another state. That is the import of the note to sub-s 3(2) (albeit that the note does not form part of the Act). It is also the natural reading of the word “in” in the definition of cross-border operation: an operation to be “conducted in this jurisdiction and in one or more participating jurisdictions”. The present investigation did not, and was never going to, cross a geographical border.

12. [73]

    On the other hand, the definition of “corresponding law” includes a law of the Commonwealth and this may suggest that a cross-border operation includes an operation which is cross-jurisdictional even though no geographical border is to be crossed.

13. [74]

    It was open to the NSW Police to apply for a controlled operation authority under Part 1AB of the Crimes Act 1914 (Cth). (For present purposes, I will disregard the distinction between a controlled operation and a major controlled operation: see s 15GD.) Section 15GH allows an “Australian law enforcement officer of a law enforcement agency” to apply for an authority. Section 15GC defines “law enforcement agency” to include “the police force of a State or Territory.” Part 1AB specifically encompasses operations that involve an investigation into offences against both the Commonwealth and a State (where there is a federal aspect): see 15GD(1)(b) and s 15GE.

14. [75]

    On a review of both statutes, the more appropriate authority would have been one obtained under Part 1AB of the Crimes Act 1914. There can be little doubt that a controlled operation authority under the Commonwealth legislation is available to NSW police officers and that such authorities can cover a situation where the investigation is into offences against both Commonwealth and NSW law. For reasons that are unexplained, a Commonwealth authority was in fact ultimately obtained on 20 April 2017.

15. [76]

    However, the fact that the Commonwealth act would apply, does not mean the NSW authority is invalid. It is not necessary to obtain authorities under both legislative schemes. This was made clear in Gedeon when a similar argument was made. The High Court said at [41]:

16. [77]

    Those observations in Gedeon resulted in the introduction of s 15HH to the Crimes Act 1914 (Cth):

17. [78]

    This section essentially immunises state police from prosecution for a Commonwealth offence provided they have an authority under the State law.

Were the police exclusively investigating a Commonwealth offence?

1. [79]

   The accused essentially submitted that the NSW police were not investigating a NSW offence at all. Rather, so it was submitted, they were investigating a Commonwealth offence. It was submitted that the investigation of the NSW offence of being a member of terrorist organisation [70] was merely “window dressing” to justify the use of the authority under the LECO Act. [71] I am unable to accept this submission.

2. [80]

   The evidence shows that the police were investigating, amongst other things, whether Mr Taleb was a member of a terrorist organisation. In his evidence on the voir dire, Detective Goodhew said, contrary to what was being put to him in cross-examination, that there was an investigation into the State offence. [72] He was not further challenged on this except to point out that Mr Taleb was not charged with such an offence. However, the fact that no charge is laid, or no evidence is uncovered to substantiate the charge, is not evidence that the police were not investigating the offence.

3. [81]

   In re-examination Detective Goodhew was asked about the type of evidence police were looking for and he said it was whether “there’s been any pledge of allegiance to a prescribed terrorist organisation.” [73] In the first deployment of the UCO on 5 April 2017, the conversation included the UCO specifically asking if the accused had pledged his allegiance to anyone in particular. [74] Similarly, in the second meeting on 7 April 2017 he asked “who, are you, are you aligned to anyone in particular?” [75]

4. [82]

   From the time that the NSW police commenced its investigation, they were investigating whether the accused was involved in terrorism offences. It does not appear to have been specific to one particular offence (whether under State or federal law). The objective in the operational plan for CB CO 17/023 was to investigate Mr Taleb’s suspected involvement “in terrorist related activities”. There is little doubt that this included whether he was a member of a terrorist organisation. That is an offence under state law. The fact that the investigation ultimately resulted in a prosecution for a Commonwealth offence does not diminish the clear evidence that police were (also) investigating a possible offence under s 310J of the Crimes Act 1900 (NSW).

Was the authority invalid because it purported to authorise NSW police to conduct operations in Victoria even though there was no intention to conduct such operations in Victoria and no such operations were, in fact, carried out?

1. [83]

   The reference to Victoria is clearly a mistake. So much is clear from the application and operational plan upon which the authority was based. Section 13A of the LECO Act provides:

2. [84]

   I am satisfied that the reference to Victoria does not invalidate the authority.

3. [85]

   On the other hand, the reference to Victoria tends to highlight the fact that, at least in the ordinary case, a cross-border operation will involve an investigation or operation that takes place in more than one (physical) jurisdiction.

Did the authority purport to authorise actions that endangered the safety of the community?

1. [86]

   The accused submitted that the authority CB CO 17/097 is invalid because it authorised the UCO to “PLAN [a] TERRORIST ACT”. It was submitted that “arguably the activity to plan a terrorist attack is an event that could cause death.” Accordingly, it was submitted that the authority purported to authorise an activity that was “likely to seriously endanger the health or safety” of the participants. This is contrary to s 7(1)(b) of the LECO Act which provides that an authority to conduct a controlled operation “must not be granted” where the operation will involve:

2. [87]

   This was the provision considered by the High Court in Gedeon. The circumstances of the present case are entirely different. There was no suggestion, either in the authority itself or in the actions of the UCO, that any terrorist act was to be (in fact) carried out. In Gedeon the authority purported to authorise the actual distribution of cocaine and that is (in fact) what occurred.

3. [88]

   In any event, the authority in this case did not purport to authorise the planning of a terrorist attack. The conduct actually authorised, and upon which the accused relied to submit that the authority authorised “planning a terrorist attack”, was as follows: [76]

4. [89]

   That activity is far removed from authorising the police to involve themselves in the planning of an actual terrorist attack. Given the nature of the investigation – into possible terrorist activity – it is inevitable that there would be discussion between the UCO and the suspect of possible activities involving terrorism. As the Prosecutor submitted “engagement by an undercover officer in a discussion with a suspected terrorist about attacks they might consider is not a matter which necessarily endangers any person.”

5. [90]

   The accused relied on a particular conversation where the UCO asked Mr Taleb “do you want to do something here?” This was said to “incite the accused to engage in a terrorist act at home”. Even accepting this to be the case, the operational plan upon which the authority was based made it clear: [77]

6. [91]

   There is no substance to this basis of the accused’s objection.

Did the UCO act beyond the conduct authorised by the controlled operation authority by encouraging or inciting the accused to do things that he would not otherwise have done?

1. [92]

   As the factual summary in [34] to [44] demonstrates, many of the particular acts alleged in the indictment to be acts done in preparation for travelling overseas to fight in Syria were acts that were discussed between the UCO and Mr Taleb. At least some of them – in particular, sending money to a fictitious organisation called ‘the brothers’ – were not things the accused was likely to do if it were not encouraged by the UCO. Similarly, Mr Taleb was unlikely to have gone to the airport if the UCO had not promised to provide him with a ‘plane ticket. He had no ticket of his own and insufficient money or means to pay for his airfare or passage.

2. [93]

   As a factual matter, I accept that many of Mr Taleb’s acts were carried out because he was encouraged by the UCO.

3. [94]

   It was submitted that these acts of encouraging the accused to do these things was not conduct that could be authorised under the LECO Act. Reliance was placed on s 7(1)(a) which prohibits the granting of an authority that involves a participant:

4. [95]

   However, s 7(1)(a) is directed to conduct “of a kind” that the target “could not reasonably be expected to engage in”. It is not directed to the specific conduct engaged in.

5. [96]

   The information available to the investigators suggested that Mr Taleb had some interest in travelling to Syria and fighting with ISIS forces. According to that material, his interest pre-dated the involvement of the UCO. It can be discerned in the telephone calls that were recorded in February 2017. There were also discussions with the UCO that suggested Mr Taleb had previously contemplated travelling overseas.

6. [97]

   The fact that specific acts were encouraged to facilitate this possible desire to fight with ISIS overseas does not constitute a breach of the provision in s 7(1)(a) of the LECO Act.

Was the authority invalid because the investigation is not a “cross-border controlled operation” at all?

1. [98]

   Because of the complication in the construction of the legislation to which I referred in [62] to [78] above, the question of whether the operation was a “cross-border” controlled operation is a difficult one.

2. [99]

   My preferred construction is that this was not a cross-border controlled operation on the rather prosaic, and perhaps unduly simplistic, basis that no border was crossed. There was never any intention to conduct any part of the operation outside the state boundaries of New South Wales.

3. [100]

   This construction accords with the use of the word “in” within the definition of “cross-border controlled operation in s 3(1)” and with the definition and note in s 3(2).

4. [101]

   The construction contended for by the prosecution is a rather tortured one and involves the proposition that the construction of the phrases “in this jurisdiction” and “in one or more participating jurisdiction” includes in this jurisdiction (NSW) where the “corresponding law” of another jurisdiction (the Commonwealth) is engaged. The expression “corresponding law” is used elsewhere in the LECO Act (s 3A, 20H, 20R and 20S). Nowhere else does it carry this extended, geographical, meaning. The terms of s 20H(1) also militate against the Prosecutor’s construction: [78]

5. [102]

   As I have said, the correct course would have been to apply for an authority under Part 1AB of the Crimes Act 1914 (Cth). [79] It may also have been that an authority under Part 2 of the LECO Act could have authorised the conduct engaged in. The general definition of “controlled operation” in s 3 includes an investigation for the purpose of “obtaining evidence of criminal activity or corrupt conduct”. This would include such activity that may constitute an offence under the law of NSW and the law of another jurisdiction. However, Part 1AB of the Crimes Act 1914 (Cth) clearly contemplates a controlled operation – like this one – where the investigation is directed towards activity that may constitute an offence against the Commonwealth and an offence against the state that has a federal aspect). [80]

6. [103]

   These findings mean that the investigating police, inadvertently, applied for the wrong authority and the authority could not authorise an operation that was not a cross-border controlled operation.

7. [104]

   Accordingly, any acts of encouragement or incitement were unlawful acts, the cross-border controlled operation authority CB CO 17/097 could not authorise them, and the evidence obtained as a result was obtained in contravention of Australian law.

8. [105]

   If the conclusion stated in the preceding paragraphs is correct, s 138 of the Evidence Act applies. The prosecution has an onus to establish that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in this way. I am satisfied that the prosecution has discharged this onus. A consideration of the criteria in s 138(3) militates in favour of admission. In particular:

9. [106]

   Reference has been made to the High Court’s decision in Gedeon. That case ultimately was sent back to trial and the trial judge allowed the evidence in spite of the contravention of the law. The decision was subject to an appeal to the NSW Court of Criminal Appeal. [81] While error was established in the approach taken at trial, the bench of five judges unanimously held that the evidence was correctly admitted. Because error was established, the Court was required to re-exercise the discretion under s 138. The analysis of s 138 in this context is helpful, although it is fact specific. [82] Important to the Court’s decision was the fact that the investigators involved “held a bona fide belief that they were entitled to carry out the operation by virtue of the controlled operations authorities”. The same consideration is important in the present case.

10. [107]

    I am satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting it, in spite of the contravention of Australian law.

11. [108]

    As has been seen, on 20 April 2017 a Formal Authority for a Major Controlled Operation was issued by Deputy Commissioner Phelan of the Australian Federal Police (‘AFP”). [83] This was granted under the provisions in Part 1AB (s 15GI) of the Crimes Act 1914 (Cth).

12. [109]

    Unlike the provisions of the LECO Act, there is no doubt that a Commonwealth authority such as this one can authorise the investigation into both a State and Commonwealth offence. That is because s 15GD(1) defines a controlled operation as an operation that: [84]

13. [110]

    The defence sought to argue that this authority was invalid. It was put in written submissions: [85]

14. [111]

    Mr Finnane QC said in oral submissions: [86]

15. [112]

    However, the submissions were based on a false factual premise. In fact, there was evidence that the AFP were involved in an investigation before applying for the authority under Part 1AB of the Crimes Act 1914 (Cth). Once this was pointed out to him, Queens Counsel (properly) corrected the record and withdrew the objection. [87] He then tendered a series of documents establishing the AFP involvement in the investigation. [88]

16. [113]

    The relevance of this is that, even if it were held that the NSW authority under the LECO Act is invalid or the evidence improperly obtained, any action taken by the UCO after 20 April 2017 was capable of being authorised by the Commonwealth authority.

17. [114]

    Mr Taleb objected to the tender of the video recording (and associated transcript) of the interview he had with police over around three and a half hours on 15 June 2017. The objection is based on the asserted impropriety of continuing to interview the suspect after he indicated that he wished to exercise the right to silence.

Admissions

1. [115]

   The interview contains evidence of relevant admissions made by Mr Taleb, although some of those are unlikely to be in dispute at the trial. For example, he admitted he was an Australian citizen (an element of the offence). He also admitted that he was supposed to be meeting a friend at the airport who was to give him a ticket. [89] This was the arrangement made with the UCO. [90] He agreed that he told the police earlier that he was a tourist intending to travel to Bosnia on a holiday. [91] Later in the interview he confirmed he was going to Bosnia. [92] Again, this was the plan discussed with the UCO as to what Mr Taleb should do if he was stopped at the airport. He also made comment on some of the telephone intercepts that were played in the course of the interview. He commented on “the green birds” [93] and gave answers inconsistent with the prosecution case that this is a reference to dying as a martyr. [94] This is far from an exhaustive analysis of the admissions and other relevant statements he made.

The accused seeks to exercise his right to silence

1. [116]

   At the very beginning of the interview, the accused asked if he had a right to silence and said “I’d like to take that right”. [95] The officer acknowledged this but said “I’ll just finish with the process.” [96] There was then discussion of whether the accused wanted a lawyer at court (which he did) or “now” (which he did not). He was then asked if he was going to remain silent and he twice said “yeah”. [97] The officer said:

2. [117]

   The officer then explained the nature of the recording equipment and how it would “record this interview”. There was then a discussion of his rights: [98]

3. [118]

   After referring to the right to silence, the accused was not asked whether he wished to exercise that right. In contrast, after advising of the right to speak to a relative or lawyer, the police immediately asked if Mr Taleb wanted to exercise the right.

4. [119]

   He was then asked questions, the answers to which had a capacity to incriminate him (the first being whether he was an Australian citizen).

5. [120]

   After questions about his religious beliefs, the accused said “I’ll stop answering questions, yeah”. [99] There were further questions about whether the accused understood the allegations and he asked several questions about why the police were charging him. Then substantive questioning recommenced (with questions about his arrest at the airport and what he said to police officers after the arrest). [100] That questioning continued for some time. When the accused was asked whether “there is anything you want to tell us?” he said “No” and asked again why he was being charged, saying “that’s why I’m curious.” The questioning continued until the accused was asked about “messaging or email or whatever”. [101] He said: [102]

6. [121]

   This was ignored and the police advised the accused that they were taking out a laptop and were going to play him some recordings. That process continued over a long time. On many occasions he said “no comment” or “I’d rather not comment” but on other occasions he provided some answer or explanation for what was on the recordings.

7. [122]

   At 3:25pm, the police resumed the interview and confirmed that the accused had spoken to his solicitor. The interview was then quickly terminated. Mr Taleb made no complaints about his treatment, agreeing he made the interview of his own free will. There was an odd exchange with the custody manager when Mr Taleb was asked whether “any threat, promises or inducement was held out to you to give answers as recorded in this interview” and he said “Yeah”. The follow up question whether he had any complaints was answered in the negative.

Detective Goodhew’s evidence on the voir dire

1. [123]

   Detective Goodhew did not acknowledge any impropriety in the conduct. He gave the following evidence: [103]

The “rule of practice”

1. [124]

   In The Queen v Ireland Barwick CJ said: [104]

2. [125]

   In Plevac v R, [105] the Court of Criminal Appeal set out a number of propositions concerning the proper questioning of suspects including: [106]

3. [126]

   See also the judgment of Adamson J in R v FE. [107]

4. [127]

   The “rule of practice” referred in Ireland in 1970 remains part of the law in NSW. Legislative enactments have emphasised the right to silence. Section 139 of the Evidence Act provides that a failure to advise an arrested person of their right to silence will result in a finding that the evidence was obtained improperly. While no automatic consequence flows from a failure to issue a caution, or from a failure to respect a suspect’s clear statement that they wish to remain silent, there seems little point in requiring police to ensure the person knows their right, if their decision to exercise that right is ignored or side-stepped.

5. [128]

   The questioning in the present case was impermissibly persistent. Mr Taleb indicated he wished to remain silent from the outset of the interview. He repeated this desire on at least six occasions over the following 17 pages of transcript. It is true that he gave answers to some questions while saying “no comment” to others as the interview went on. It is also true that he was asking the police why they were charging him and what evidence they had. However, until Mr Taleb spoke with his solicitor three hours later, there was no occasion where the officers appeared to be prepared to stop questioning him when he said he wished to remain silent. On each occasion, the police told him they would complete the “process” or simply stated their intention to do certain things – to read the allegations, to ask him questions, to play him recordings. Mr Taleb must have been given the impression that there was a “process” involved that had to be recorded by video. This is not correct. The obvious alternative, and one not referred to or contemplated until the solicitor became involved, was to terminate the interview. There was no legal requirement to put the allegations to the accused while on tape and no established “process” that had to be completed. Nothing in the interview suggests that Mr Taleb would have known that one option was that the interview could simply be terminated.

6. [129]

   Because of the persistent questioning, and the failure to terminate the interview when the accused sought to exercise his right to silence, the evidence contained in the ERISP was improperly obtained. Mr Taleb’s repeated assertion that he wished to exercise his right to silence was ignored.

7. [130]

   Section 138(1) of the Evidence Act says that improperly obtained evidence:

8. [131]

   Once impropriety is established, the onus is on the party seeking to have the evidence admitted. “Without limiting the matters that the court may take into account”, s 138(3) provides a number of criteria that must be considered. I have taken the criteria in s 138(3) into account in considering the question under s 138(1):

9. [132]

   Having taken all of those matters into account, and also taking into account the importance of the maintenance of the right against self-incrimination and the desirability that interviews such as this be terminated once it is clear that a suspect has expressed a clear desire not to answer questions, I am not satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that was obtained in this way.

10. [133]

    Accordingly, the evidence of the ERISP is excluded.

11. [134]

    On 3 February 2017 a telephone intercept (‘T/I’) warrant was issued by a nominated AAT member pursuant to the Telecommunications (Interception and Access) Act 1979 (Cth). [108] It was to remain in force until 30 March 2017 (a period of 56 days). On 28 March 2017, a second T/I warrant was issued and it was to remain in force until 15 June 2017 (a period of 83 days). [109] The prosecution seeks to tender 13 calls intercepted pursuant to those warrants. [110]

12. [135]

    Objection was taken on the basis that the warrants were invalid because they purported to authorise T/Is for a period greater than 45 days, contrary to the provisions of the T/I Act. [111] Reliance was placed on the provisions in ss 46 and 49(3) of the T/I Act. Those provisions relevantly provide:

13. [136]

    The written submissions suggested that “arguably s 46(1)(d)(ii) is satisfied because it is clear that they were seeking to intercept the phone calls between the accused and Jihan Ghazzaoui (“another person”)”. As best I could understand the oral submission made under this objection, it was suggested that because there were two people involved in the conversation under s 46(d)(ii), s 49(3)(a) applied and therefore the warrant was limited to 45 days.

14. [137]

    These submissions must be rejected. They involve a misunderstanding of the statute. The warrants authorised the interception of Mr Taleb’s telephone service. He was the “particular person” referred to in s 46(1)(c) and s 46(1)(d)(i). That is, he was the person it was thought would use the telephone service and also the person suspected to be involved in the criminal activity. Accordingly, under s 49(3)(b) the warrant could authorise interception for up to 90 days. Section 46(1)(d)(ii) did not arise. It was not a case where the person who was expected to use the telephone service (“the particular person”) was expected to speak to the person suspected of being involved in the criminal offence (“another person”).

15. [138]

    This interpretation is confirmed by a consideration of the Regulations and Forms 1 and 2 which provide the form of different types of warrant depending on whether the target of the warrant is the A-party or B-party.

16. [139]

    I note that no other objection was taken to the evidence in the telephone intercepts. There was no objection to the relevance of the calls or suggestion that there should be any form of discretionary exclusion of the evidence.

17. [140]

    Accordingly, on the basis that the warrants were valid and in the absence of further objection, I rule the evidence to be admissible.

18. [141]

    The accused’s mobile telephone was interrogated by police on a number of occasions. There are several statements in the evidence where detectives or technical police give evidence of extracting material from the mobile telephone. [112] There are many hundreds of pages of the material so extracted. There are, without exaggeration, thousands of items that are relevant to the subject of radical Islam, Jihad, the war in Syria, ISIS, the conflict between the Sunni and the Shi’a and similar subjects. These range from the mundane to the highly distressing. There are pictures and videos of ISIS fighters in Iraq, Syria and elsewhere around the world. There are covers of the Dabiq magazine, which the evidence will show is the official magazine of ISIS. There are videos of executions, interviews with suicide bombers and beheadings. The records also include text messages, chats on the Telegram app, thousands of thumbnail images, information from social media sites including Facebook and vast quantities of metadata. The material also discloses what appear to be holiday and family shots.

19. [142]

    In filing its second set of submissions, [113] the prosecution provided an annexure setting out a confined number of items (28) that it proposed to lead in evidence. I assume the prosecution does not propose to adduce before the jury the many hundreds of pages with which I was provided on the voir dire, except for specific items that have some specific forensic use (such as linking the images on the ‘phone with those on his Facebook page).

20. [143]

    In addition to the material extracted from the telephone and annexed to the various statements, there is also a DVD recording of one of the investigators going through the telephone. It shows the functions of the ‘phone (a Samsung Galaxy) and zooms in on some of the files said to be relevant. One of the files depicted shows a video – or possibly an animated video game – of what appears to be a roadside execution. Another video shows a waterfall. The viewer can see the many types of apps and files on the telephone including the Telegram and Facebook apps. As I said in the introduction of this judgment, this DVD was created very shortly before the trial was due to commence. The accused’s lawyers only got to see it on the eve of the trial.

21. [144]

    There are a number of objections to this material.

22. [145]

    The first objection is to the effect that the evidence does not establish the provenance of the material. That is, it cannot be established that the accused himself sought out and downloaded the material to his telephone. Having said that, and given that the accused told police that nobody else used his ‘phone or had its password during the ERISP, Queens Counsel eschewed the suggestion that he would submit that somebody other than Mr Taleb physically took the telephone and downloaded the material. It was said however, that somebody in a group chat or otherwise may have “uploaded” the material without the accused’s knowledge. [114] In other words, the material may have been sent to the accused’s Galaxy ‘phone by somebody else.

23. [146]

    The second objection is that there was no evidence that the accused actually viewed the material that was extracted from his telephone. The third limb to this part of the objection was that there was no evidence that the accused approved of the material just because the material was found on his telephone.

24. [147]

    These three submissions can be disposed of quickly and by reference to binding authority. In Elomar v The Queen, the Court made the following observations about a similar objection: [115]

25. [148]

    The Court went on to say: [116]

26. [149]

    As to the use of the evidence, and the contention that it could only be used as “tendency evidence”, the Court said: [117]

27. [150]

    At one stage in argument the Prosecutor said: [118]

28. [151]

    I did – and would again – urge caution upon the Prosecutor in using the word “disposition” in this context. It is difficult to see how the use of that word would not encourage tendency reasoning. If the evidence is to be allowed, it is certainly not being allowed as tendency evidence. As I understand it, no notices have been served and it was not submitted that the evidence should be admitted as tendency evidence.

29. [152]

    However, subject to that observation, it is clear that Elomar is binding authority that the evidence has relevance, not as tendency evidence, but in proving an interest in the material and thus going to the accused’s state of mind. Unguided by the authority, I may have had some difficulty in discerning the distinction, but the same reasoning applies in the present case. The evidence is capable of establishing that the accused in fact supported or was interested in radical Islam, in ISIS, in martyrdom, and the like. As such, an inference may be drawn that the accused wanted to travel to Syria with the intention of taking part in the hostilities there.

30. [153]

    Elomar also disposes of the submissions that the absence of evidence that the accused ever viewed, or approved, or uploaded the material, results in it being declared inadmissible.

31. [154]

    The final aspect of the objection to this material concerned the quantity of the material and the prejudice arising from its graphic nature. The objection is based around s 135 and, more significantly, s 137 of the Evidence Act.

32. [155]

    The prosecution submitted that it would restrict the amount of material, and would present it in such a way, so as to reduce the possible emotional reaction to the evidence of executions, beheadings and the like. The Prosecutor relied on Elomar to submit that a clear direction to the jury can cure the prejudice. [119] There are, of course, many authorities to the effect that juries obey such directions and are capable of assessing such evidence logically and in an unemotional way. [120]

33. [156]

    Part of the material on the voir dire is an expert report of Dr Rodger Shanahan. He is an expert in “political Islamism” and Middle Eastern security issues. His expertise extends to the formation, methods and beliefs of ISIS. Dr Shanahan has looked at some of the material extracted from the telephone, reviewed the telephone intercept material and has provided opinions as to the significance of some of the material. Although he stated that he was unable to examine all of the material due to the enormous volume and time constraints. [121] Through his evidence, some of the material will be explained and he will be able to connect the material on the telephone and the recordings of Mr Taleb’s conversations with the nature of antagonists in the war in Syria and Iraq. For example, he is expected to explain that some of the words used by the accused in the telephone calls refer to beheadings and that the videos on his ‘phone appear to be beheadings and executions carried out by ISIS.

34. [157]

    I accept that a deal of this material can properly go before the jury. I accept that the images and videos of the war zone and ISIS troops fighting have a high degree of probative value in the circumstances of the present case.

35. [158]

    However, when it comes to the actual images and videos of executions and beheadings, I can see no real advantage in showing those images and videos to the jury. The probative value of the evidence to the issues in this trial would not be enhanced by exposing the jury to such things. The images and videos can easily be described in general terms, and the opinions of Dr Shanahan can be based around those descriptions and the fact that he has actually viewed the material. On my review of the material, and bearing in mind the issues in the case, the things said by the accused and the case the prosecution seeks to prove, the probative value of the actual video clips of executions and beheadings is outweighed by the danger of unfair prejudice. In reaching this conclusion I have considered the kind of direction given to the jury in the case of Elomar and acknowledge that the Court in that case was satisfied that the direction cured any potential for prejudice. While accepting the general robustness attributed to juries, and their capacity to follow judicial directions to disregard emotional responses to the evidence, I am satisfied that having this graphic material shown to the jury will not advance the prosecution case in any meaningful way. It would, in spite of firm direction of the kind provided in Elomar, give rise to a danger of unfair prejudice because of the inevitable emotional impact that the evidence would create.

36. [159]

    Since publishing this judgment it became clear that there was some misunderstanding of this ruling. [122] In the course of the pre-trial argument, the Prosecutor suggested that the prejudicial or emotional impact of the videos of executions and beheadings could be reduced by the video being stopped at the point where the actual execution was to take place. The screen would then go blank and there would be text describing what then happened (eg the person is then depicted being beheaded). Alternatively, or in other instances, the video would be stopped and the police officer would give evidence of what happened next. I accept that a procedure such as this has been used in other cases, that Judges have accepted that this reduced the emotional or prejudicial impact of the evidence, and that the Court of Criminal Appeal has not disturbed those discretionary judgments. However, I was (and remain) unpersuaded that this process would do much, if anything, to reduce the emotional impact of the evidence. Leaving such things to the imagination of the individual jurors, having played the video up to the fatal moment, could create greater, and unquantifiable, prejudice. The parties would not know just what the jurors were picturing in their mind’s eye. In view of the other material more directly relevant to the accused’s state of mind, and the limited probative value of adducing the evidence of the actual footage, the emotional impact of the evidence creates a danger of unfair prejudice that outweighs the probative value. This cannon be cured by direction. Accordingly, in the course of argument, I clarified the ruling to be clear that no part of any video depicting an execution or beheading can be shown to the jury. [123]

37. [160]

    As to the video of the police officer looking through the ‘phone, I have come to the view that the probative value is outweighed by the danger of unfair prejudice. With due respect to those involved, the examination of the ‘phone is fairly random, it is unclear whether the execution scene is actual footage or some kind of digital animation, and there is commentary by the officer filming which is unhelpful insofar as it can be heard.

38. [161]

    Accordingly, my rulings on the material extracted from the telephone are as follows:

    1. (1)

       The police and expert witnesses are permitted to give evidence of the number and nature of the items found on, or extracted from, the accused’s mobile telephone.

    2. (2)

       The prosecution is permitted to lead the images and videos annexed to MFI-VD21 with the exception of images and videos of beheadings or other executions. No part of any video depicting an execution or video is to be played to the jury.

    3. (3)

       The police and expert witnesses are permitted to describe and give evidence about the images and videos depicting beheadings and executions.

    4. (4)

       Disallow the tender of the video of the detective examining the mobile telephone.

39. [162]

    An objection was raised to material located on a Facebook account said to be maintained by the accused. Initially, as I understood it, this objection was based on the absence of evidence that the accused approved of the material or was responsible for downloading it to his account although there was also a question of the expertise of the witness (Mr Sutherland) through whom the evidence was tendered. In submissions in reply, the accused raised the case of Makita v Sprowles, [124] and submitted that Mr Sutherland had failed to identify any relevant “field of knowledge or how it is that he is an expert.”

40. [163]

    Mr Sutherland was not called as an expert witness. His evidence was not tendered in the form of an expert report. Rather, he gave evidence that on 11 January 2017 he accessed an account in the name of “Abu Walaa Al Shami” – which on the prosecution case is the Facebook account operated by Mr Taleb – and took a number of screen shots. The screen shots were annexed to his statement and marked A through to K.

41. [164]

    However, Mr Sutherland did provide some opinion evidence. This included information about the identification numbers and file names associated with the Facebook website and whether these could be changed. He gave some evidence of how Facebook worked and how one could choose one’s account name, user name, profile details and so on. He also gave (opinion) evidence as to what the screen shots annexed to his statement depicted.

42. [165]

    One pertinent example of opinion evidence concerned Annexure K. this shows a series of pages that the user can “follow”. The annexure does not show that any of the pages had been followed. Rather they were suggestions. Mr Sutherland said that the selection of pages depicted on Annexure K (a screen shot of Mr Sutherland’s account) arose from the fact that user whose page was being examined (Abu Walaa Al Shami or, on the prosecution theory, Mr Taleb) had previously “followed” those pages. [125] Mr Sutherland did not give similar evidence in relation to Annexure I, which is a series of pages that Facebook is suggesting Mr Sutherland might choose to “like”.

43. [166]

    Because the challenge was not initially based around his expertise, Mr Sutherland’s qualifications to provide these opinions were not led in his evidence in chief. There was no challenge to his expertise in cross-examination on the voir dire. However, in submission it was put that that “he was no more expert than any other user of Facebook.”

44. [167]

    The other objection was similar to the objection taken to material on the telephone. That is, it was put that there was no evidence that Mr Taleb himself sought out this material, downloaded it, or approved of it.

45. [168]

    On the final day of argument, the Prosecutor narrowed the scope of this Facebook evidence, indicating that it was only proposed to tender Annexures A, B, C, D, G and I. Annexures A, B, C, D and G were tendered largely to show the photographs and account names that go to prove that this was Mr Taleb’s Facebook account. This was because the same photographs were found on his telephone and the Facebook user name was the same as the one he used on the Telegram app. Some of the photographs also had relevance to his alleged interest in radical Islam and will be subject of evidence to be given by Dr Shanahan. Annexure I was a screen grab showing a series of Facebook pages that the user might choose to “like”.

46. [169]

    For the same reasons as those provided in allowing the evidence of material located on the accused’s telephone, and based on the Court of Criminal Appeal decision in Elomar, I will allow the tender the Facebook material identified by the Prosecutor on the final day of argument.

47. [170]

    As to Annexure I (the “like” pages), I allow that evidence provisionally on the basis that the Prosecutor undertakes to call evidence similar to that given in relation to Annexure K (the “follow” pages). That is, there will be evidence that the pages depicted in Annexure I are pages that the accused (assuming he was the user) had previously “liked”.

48. [171]

    As to any expert opinions, I allow the evidence provisionally on the basis that the prosecution will establish Mr Sutherland’s expertise.

49. [172]

    I make the following rulings:

    1. (1)

       The evidence obtained under controlled operation CB CO 17/097, including the evidence of the UCO and recordings of his conversations and Telegram chats with the accused, is admissible.

    2. (2)

       The evidence obtained under the Authority for a Commonwealth Major Controlled Operation AFP 16-17/115 is admissible.

    3. (3)

       The electronically recorded interview with the accused on 15 June 2017 is inadmissible.

    4. (4)

       The telephone intercepts of telephone service [REDACTED] are admissible.

    5. (5)

       As to the material extracted from the accused’s telephone:

    6. (6)

       The video of detectives examining the accused’s mobile telephone (Ex VDQ) is inadmissible.

    7. (7)

       The evidence of the Facebook page alleged to be controlled by the accused is admissible subject to: