R v WE (No.10)

WE (the accused) has pleaded not guilty to an indictment alleging an offence contrary to s 101.6(1) of the Criminal Code 1995 (Cth) in the following terms:

The accused’s trial is listed to commence on 12 February 2020.

By notice of motion filed on 11 October 2019, the accused sought a number of orders excluding parts of the evidence upon which the Crown proposes to rely. The notice of motion originally contained 20 prayers for relief. A number of them were abandoned prior to the commencement of the hearing of a voir dire. A number of others were abandoned at the conclusion of the evidence.

The end result is that only one issue remains, which is articulated in paragraph 18 of the motion in the following terms:

The entirety of the evidentiary material relating to that issue is contained in Exh A which was tendered by the Crown by consent. I have referred to aspects of that evidence below.

Exhibit A includes the Crown case statement. Whilst I do not propose to recount that statement in its entirety, it is necessary for me to set out parts of it in order to put the present issue in its proper context. The statement includes the following:

On 30 August 2019, whilst the accused was in custody awaiting trial, a search warrant was executed on the cell that he was occupying at the Frank Baxter Juvenile Justice Centre. As a consequence of the execution of that search warrant, two publications were seized, namely:

It should be noted that these items were seized from the accused’s cell some 2 years and 10 months after his alleged commission of the offence. It should also be noted that the Crown has made it clear that its reliance on this evidence will be limited to relying on the fact, but not the circumstances, of the accused’s possession of the publications.

Following the seizure of the publications, the Crown obtained a report from Dr Rodger Shanahan in relation to aspects of their contents. [2] There is no dispute that Dr Shanahan holds a PhD in Arabic and Islamic studies, and is currently a Research Fellow with the Lowy Institute, an International Policy think tank based in Sydney which deals with contemporary issues of relevance to Australia, and which is divided into thematic areas and geographic programs. [3]

Dr Shanahan has been involved in the field of Arabic and Islamic studies through training, study, experience, academic research and diplomatic work for a period of 30 years. [4] Apart from his PhD which was obtained from Sydney University, he also holds a Master of Arts specialising in Middle Eastern studies and a Master of Arts specialising in International Relations, both of which were obtained from the Australian National University. [5]

Dr Shanahan served as an army officer for a period of more than 26 years, during which he served in Arabic countries. [6] He undertook operational service duties with the United Nations as a military observer in Southern Lebanon and Syria in the mid-1990s. [7] He served as the Assistant Defence Attaché to the Australian Embassy in Saudi Arabia in 2005, in the course of which he had representational responsibility for Iran, Oman, Jordan, Kuwait and Yemen. [8] He also served as the Defence Attaché in Abu Dhabi from 2006 to 2007, during which period he had responsibility for Qatar and Lebanon. [9]

In his current work with the Lowy Institute, Dr Shanahan's particular field of expertise is that of religiously-motivated violence, within which issues of terrorism arise. [10] In that field, he has taught courses on the subjects of sectarianism, malicious networks, terrorism, and political violence. [11] He is the author of a number of books and academic papers on those and related topics, [12] has taught a number of courses on subject matter relating to religiously-motivated violence and terrorism, and has given evidence as an expert in these fields in a number of cases in this Court, as well as in the Supreme Courts of other states of Australia. [13]

Omitting the formal parts, Dr Shanahan's expert report in relation to the two publications seized from the accused's cell is in the following terms:

Dr Shanahan gave oral evidence on the voir dire before me. He explained his view that “The Oneness of Allah" text was supportive of the approach of Wahhab, and explained that Wahhabism was a variation of Salafism, bearing in mind that Salafism is itself a conservative form of Islam. [14]

Dr Shanahan agreed that Wahhabism was connected strongly to the Kingdom of Saudi Arabia, which was not a terrorist state. [15] He was asked: [16]

When asked to explain the nature of the publication “The Oneness of Allah" Dr Shanahan said: [17]

Dr Shanahan agreed that it was a “fairly conservative publication". [18]

Dr Shanahan was then taken to those parts of his report in respect of which he had made specific comment in relation to aspects of this publication: [19]

Accepting that the Crown's tender is limited to the fact of the accused’s possession of the publication, senior counsel for the accused submitted that:

Both of these submissions went substantially beyond paragraph 18 of the notice of motion, the terms of which were restricted to an objection to the evidence of Dr Shanahan. The submissions raised fundamental issues of admissibility and exclusion of the evidence. Such issues were reflected in paragraph 10 of notice of motion which I was informed had been abandoned. However, the Crown accepted that it was not prejudiced by this change of position.

In terms of relevance, senior counsel for the accused submitted that properly understood, both of the publications were theological and conservative in nature and did not, in any sense, demonstrate anything about the accused's state of mind, or any adherence on his part to an extremist ideology. Senior counsel submitted, in particular, that the material contained in the publications was of an entirely different nature than that which was found on the various electronic devices linked to the accused, and which would be relied upon by the Crown to support the conclusion that the accused adhered to an extremist ideology.

Senior counsel also pointed to the fact that the accused was in possession of the two publications a significant period of time after the commission of the alleged offence. Whilst accepting that he would put to the jury, on behalf of the accused, that it was open to conclude that other persons had access to the electronic devices upon which extremist material had been found, senior counsel rejected the proposition that these two publications were relevant because they established a continuum of interest, on the part of the accused, in such material. Senior counsel submitted that such proposition was untenable, for the simple reason that the nature of these two publications was completely different to the nature of the material which was found on the devices connected to the accused.

In the event that I were to conclude that the evidence was relevant and should be admitted, senior counsel submitted that the opinions of Dr Shanahan should nevertheless be excluded. Whilst senior counsel did not take issue with Dr Shanahan's training, study and experience as I have outlined it, he submitted that whatever expertise Dr Shanahan may have did not qualify him to express the opinions about the publications that he had expressed.

Senior counsel further submitted that Dr Shanahan was not a theologian, and that he was unable to say anything about the books being connected with (for example) Islamic State, or any other extremist organisation.

In terms of the accused's objection based on relevance, the Crown submitted that the evidence demonstrated a continuum of interest on the part of the accused in extremist literature. The Crown pointed out that the remaining evidence of the accused's possession of extremist literature was limited in time, and that although the two publications were found in the accused’s possession a considerable time after his alleged commission of the offence, such possession remained a relevant consideration for the jury, and would address the submission that the jury could not be satisfied that it was the accused, as opposed to someone else, who had access to the devices that contained the remaining extremist material.

It was further submitted that the two publications demonstrated an interest, on the part of the accused, in extremist themes, including that of martyrdom.

Submitting that the evidence was relevant in that sense, the Crown further submitted that its probative value was significant, and that its admission would not result in any unfair prejudice to the accused. The Crown submitted, in particular, that there was no indication that the jury would misuse the evidence by giving it more weight than it deserved.

In terms of the evidence of Dr Shanahan, the Crown submitted that Dr Shanahan's expertise was properly categorised as a field of specialised knowledge derived from his studies, research and experience in the field of history and political science. The Crown submitted that this was the type of specialised knowledge which was contemplated by s 79 of the Act. [20]

The Crown submitted that the opinions expressed by Dr Shanahan concerning these publications clearly met the requirements of s 79. It was submitted that Dr Shanahan, having examined the contents of the publications, had expressed opinions based on his expertise, and which were derived from his academic study and field research. It was submitted that the evidence to be given by Dr Shanahan in these respects was no different to that which was to be given by him in relation to the other material found in the accused's possession, to which there was no objection.

In advancing these submissions, the Crown made it clear that whilst it was proposing to tender the entirety of the two publications, it would be emphasising those particular passages upon which Dr Shanahan had expressed his opinions.

It is appropriate to firstly consider the question of whether the evidence is relevant. Relevance of evidence is determined by s 55 of the Act which is in the following terms:

Relevance is a test of logical connection, although it will be evident that the test imposed by s 55 is a relatively undemanding one. In order to be relevant, there must exist the possibility that the evidence may have some rational effect on the assessment of the probability of a fact in issue. [21] That effect may be direct or indirect. [22]

For a number of reasons, and notwithstanding the width of s 55 of the Act, I am not satisfied that the evidence is relevant.

The relevant fact in issue is whether the accused subscribed to what might be described as an extremist ideology. In my opinion, when the two publications are viewed as a whole, they are not properly regarded as extremist in nature. They are essentially religious texts, both of which Dr Shanahan described as conservative. Taken in isolation, the specific passages referred to by Dr Shanahan in his report might be viewed as extreme in one sense. However, those passages are included in the respective publications against a background of other material which could not be said, in any way, to fall within the ambit of extremism.

For example, “Kitab At-Tauhid” covers subject matter under headings such as:

The publication entitled “The book of Oneness of Allah" contains subject matter under headings which include:

In these circumstances, the two publications do not, in my view, have the capacity to bear upon the assessment of the identified fact in issue.

It is also of some significance, in my view, that the accused's possession of these publications occurred a significant period after his alleged commission of the offence. I am unable to accept the Crown's attempt to address this issue by submitting that the accused’s possession of the publications is relevant because it establishes a continuum of interest in extremist literature. This is for the simple reason that in my view, neither publication is properly categorised as extremist. Neither bears any similarity whatsoever to the other material upon which the Crown will rely in this respect [33] .

I should also say that even if I had come to the view that the evidence was relevant, I would have excluded it pursuant to s 137 of the Act. It will be evident from what I have already said that the passages to which Dr Shanahan has referred, and which would have been the subject of emphasis by the Crown if the evidence had been admitted, form a very small part of the totality of what is otherwise generally conservative religious material. Concentrating upon them has the capacity to result in a somewhat misleading assessment of each publication as a whole. I should make it clear that in making those observations, I do not intend, in any way, to be critical of Dr Shanahan. It is evident that in compiling his report, and in highlighting those specific passages, Dr Shanahan was doing no more than providing the opinion that was sought from him. However, it remains the case that if the evidence were admitted, there would be a real risk that the jury would ascribe substantially more weight to it than was warranted. Those circumstances would engage the provisions of s 137 of the Act.

Having reached these conclusions it is unnecessary for me to consider the admissibility of Dr Shanahan's opinions.

For all of these reasons, the evidence of the accused's possession of the two publications will be excluded.