R v Dirani (No. 6)

1. [1]

   JOHNSON J: The Accused, Mustafa Dirani, is charged on an indictment containing two counts:

Pretrial Evidentiary Issues

1. [2]

   In advance of the trial of the Accused, a number of procedural and evidentiary issues were raised for determination. A pretrial hearing took place on 4 and 5 June 2018.

2. [3]

   By Notice of Motion filed in Court on 4 June 2018, the Accused sought the following orders excluding evidence which the Crown proposed to tender in the trial:

3. [4]

   At the conclusion of the pretrial hearing on 5 June 2018, I announced my rulings with respect to these areas of objection (PT122):

4. [5]

   I indicated that I would publish my reasons for these rulings at a later date. This judgment contains my reasons for these evidentiary rulings.

5. [6]

   Rulings with respect to pretrial procedural issues are contained in a separate judgment: R v Dirani (No. 7) [2018] NSWSC 945.

The Crown Case Against the Accused

1. [7]

   Before moving to consider the areas of objection, it is appropriate to say something about the Crown case against the Accused in support of which the challenged evidence is advanced. The probative value of the challenged material must be assessed principally in the context of the elements of the conspiracy alleged in Count 1 on the indictment.

2. [8]

   According to the Crown Case Statement (Exhibit PTB), it is the Crown case that, on the afternoon of Friday 2 October 2015, Farhad Mohammad (15 years old) (“Farhad”) shot dead Curtis Cheng outside the New South Wales Police Headquarters in Charles Street, Parramatta. The firearm used to commit what the Crown says was a terrorist attack was given to Farhad by Raban Alou. The firearm was sourced by Raban Alou from Talal Alameddine.

3. [9]

   The Crown Case Statement alleges that each of the Accused, Raban Alou and Milad Atai, was party to an agreement to do an act or acts in preparation for a terrorist act or acts. These preparatory acts included (paragraph 4, Exhibit PTB):

4. [10]

   The Crown alleges that, at all relevant times, Alou, Atai and the Accused held certain beliefs in common relating to their interpretation of the Islamic religion and support for the terrorist organisation, Islamic State. In particular, the belief that Islam throughout the world is under attack and that there is a religious obligation to respond to that attack by means of violent jihad. These views are said to be reflected in extremist material found in their premises, by their internet activity and communication with one another and by comments made by them after the murder of Curtis Cheng on 2 October 2015.

5. [11]

   The Crown alleges, as well, that Alou, Atai and the Accused were part of an online “WhatsApp” closed chat group where they shared views and discussed ideas supportive of Salafi Islam and Islamic State. The chat group was called “The Bricks” (“Bricks Forum”) and the profile picture of this group was an Islamic State flag (paragraphs 5 and 6, Exhibit PTB).

6. [12]

   In particulars provided by letter dated 22 May 2018 (Exhibit PT1), the Crown identified the following overt acts on the part of the alleged conspirators:

7. [13]

   With respect to the assertion concerning the Accused referred to at [9](a) above, the Crown said (Exhibit PT1):

8. [14]

   Further mention will be made to the Crown evidence against the Accused with respect to extremist material and the surveillance opinion evidence of CIN 1877 when considering those specific areas of objection.

9. [15]

   It is sufficient at this point to observe that the Crown case involves a mixture of direct evidence and circumstantial evidence and inferences to be drawn by reference to the totality of the evidence.

The Conspiracy Offence Alleged in the First Count on the Indictment

1. [16]

   The first count in the indictment refers to s.101.6 Criminal Code (Cth) which provides (in s.101.6(1) and (2)):

2. [17]

   The definition of “terrorist act” is contained in s.100.1(1) Criminal Code (Cth) and need not be repeated here.

3. [18]

   As explained in Lodhi v R (2006) 199 FLR 303; [2006] NSWCCA 121 at 318 [68]-[69], 323 [90], s.101.6 has two elements:

4. [19]

   Where, as here, a conspiracy is alleged, s.11.5 Criminal Code (Cth) applies requiring proof of the following three elements:

Relevant Statutory and Other Principles Bearing on the Evidentiary Objections

1. [20]

   It is appropriate to set out a number of statutory provisions and principles which will be called in aid for the purpose of explaining my rulings concerning the evidentiary objections.

2. [21]

   The Crown, as the tendering party, bears the onus of establishing, on the balance of probabilities, any facts necessary for deciding that the evidence should be admitted: s.142 Evidence Act 1995 (NSW).

3. [22]

   Although the Accused does not contend that evidence presently under objection is not relevant to issues in the trial, it is nevertheless useful to set out the relevance test contained in the Evidence Act 1995 (NSW).

4. [23]

   Sections 55 and 56 Evidence Act 1995 (NSW) state:

5. [24]

   Sections 135 and 137 Evidence At 1995 state:

6. [25]

   The term “probative value” is defined in the Dictionary to the Evidence Act 1995 (NSW) as meaning “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”.

7. [26]

   The test of relevance is a relatively undemanding one. The enquiry for the purpose of s.55 concerns how the evidence might affect findings of fact. The possible use to which the evidence might be put is to be taken at its highest: IMM v The Queen (2016) 257 CLR 519; [2016] HCA 14; at 313 [43]-[44]. No assessment of the credibility or reliability of the evidence is required: IMM v The Queen at 312 [39].

8. [27]

   Evidence which is relevant according to s.55 and admissible under s.56 is, by definition, probative. But neither s.55 nor s.56 requires that evidence be probative to a particular degree for it to be admissible. Evidence that is of only some (even slight) probative value will be prima facie admissible: IMM v The Queen at 312 [40].

9. [28]

   In considering a relevance objection to a piece or pieces of evidence which are said to form part of a circumstantial case, it is appropriate to bear in mind what was said by the Court of Criminal Appeal in Elomar v R (2014) 300 FLR 323; [2014] NSWCCA 303 at 377-378 [240]:

10. [29]

    Evidence may be relevant to the state of mind of an accused person, but not as tendency evidence. By way of example in Elomar v R, the Court of Criminal Appeal said at 399-400 [369]:

11. [30]

    Section 137 is expressed in terms of an evaluative judgment mandating exclusion: IMM v The Queen at 306 [15]. Section 137 requires the “probative value” of the evidence to be weighed against the danger of unfair prejudice to the Accused. This requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue: IMM v The Queen at 314 [47].

12. [31]

    The danger of “unfair prejudice” in s.137 Evidence Act 1995 (NSW) directs attention to the risk that evidence may be misused in some unfair way by the tribunal of fact (in this case, a jury) so that the jury may not comply with judicial directions as to its use: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at 325 [91]; R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA 494 at 582-584 [163]-[165]. There must be a risk that the evidence will damage the defence case in some unacceptable way, such as provoking some irrational, emotional or illogical response or by giving the evidence more weight than it truly deserves: BJS v R (2013) 231 A Crim R 537; [2013] NSWCCA 123 at 549-550 [51].

13. [32]

    The existence of competing inferences (or alternative interpretations), available to be drawn from the proposed prosecution evidence, plays no part in the assessment of probative value for the purpose of s.137: R v Burton (2013) 237 A Crim R 238; [2013] NSWCCA 335 at 280 [196].

14. [33]

    Section 135 is based upon an assumption that the evidence is otherwise admissible. It confers a power to refuse to admit such evidence if the particular statutory opinion is formed. A discretionary process is involved, with the formation of the relevant opinion requiring a balancing exercise. The power to reject evidence will only be engaged if the probative value of the evidence is “substantially outweighed” by a “danger” of the kind identified in s.135(a), (b) or (c): Dyldam Developments Pty Limited v Jones [2008] NSWCA 56 at [78].

15. [34]

    Section 76 Evidence Act 1995 (NSW) provides:

16. [35]

    Section 79(1) of that Act states:

17. [36]

    Section 80 Evidence Act 1995 (NSW) operates to abolish the ultimate issue and common knowledge rules. Section 80 provides:

18. [37]

    An opinion is an inference drawn from observed and communicable data: Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 at 130-131 [21].

19. [38]

    In Honeysett v The Queen, the Full High Court said with respect to s.79 at 131-132 [23]-[25] (footnotes excluded):

20. [39]

    The opinion rule is expressed as it is in order to direct attention to why the party tendering the evidence says it is relevant - it directs attention to the finding which the tendering party will ask the tribunal of fact to make: Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at 602 [31].

21. [40]

    The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act 1995 (NSW) rather than any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made, although it remains useful to consider what was said by Heydon JA in Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at 744 [85]: Dasreef Pty Limited v Hawchar at 604 [37].

22. [41]

    In R v Tang (2006) 65 NSWLR 681; [2006] NSWCCA 167, Spigelman CJ (Simpson and Adams JJ agreeing) said at 712 [137]:

23. [42]

    Later in R v Tang, Spigelman CJ referred, at 714 [147]-[150], to well-known passages in other cases which have emphasised the need for attention to requirements of form, including HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 and Makita (Australia) Pty Limited v Sprowles:

Objection to Extremist Material Found in Possession of and/or Communicated by the Accused

1. [43]

   Written submissions were made on behalf of the Accused (Pretrial MFI1) and the Crown (Pretrial MFI2) with respect to the objection to the extremist material with the written submissions being supplemented orally at the pretrial hearing. It is not necessary to repeat these submissions in any detail in this judgment.

2. [44]

   The Crown submitted that the extremist material was relevant and highly probative to establish, with respect to the first count, the fact of the agreement and its nature and scope (first element) with the fact of the conspiracy and its nature and scope to be inferred from this evidence which includes evidence that Alou, Atai and the Accused were associated, and that they shared extremist views and ideology including communicating such views on the WhatsApp “Bricks Forum”.

3. [45]

   In addition, the Crown submitted that the extremist material was relevant and highly probative to establish that the Accused, and at least one other party to the agreement, had the relevant fault element (second element), namely an intention that the offence of doing acts in preparation or planning for a terrorist act would be committed pursuant to the agreement.

4. [46]

   The Crown submitted that the views expressed by the Accused in the extremist material he published, and the views expressed by others in the extremist material he possessed, were directly relevant to establish his state of mind. The Crown submitted that there was no danger of unfair prejudice in the sense that, if properly directed, the jury would not make improper use of the evidence.

5. [47]

   It was submitted for the Crown that a summary in words of the extremist material, and the Accused’s proffered admission (see [50] below) would not suffice in this case to allow the jury to understand the content and nature of this material that bore upon elements of the primary offence charged.

6. [48]

   The Crown relied upon a number of decisions where extremist material was allowed to be adduced at jury trials for terrorist offences, for reasons which were said to be analogous to those arising in this trial: R v Ibrahim and Ors (Fulford J, Woolwich Crown Court, 11 January 2007, unreported); R v Benbrika and Ors (No. 15) [2007] VSC 545; R v Baladjam and Ors (No. 50) (Whealy J, NSWSC, unreported, 2 October 2008); Benbrika v R (2010) 29 VR 593; [2010] VSCA 281 at 652-655 [268]-[286]; Elomar v R at 339 [48], 406 [404], 413 [449]; R v Karabedjovic [2015] VSC 641.

7. [49]

   It was submitted for the Accused that the extremist material was strong in content and that its prejudicial effect would overwhelmingly outweigh its probative value so that the Court should exclude it under s.137 Evidence Act 1995 (NSW). It was submitted for the Accused that a critical issue in the trial was whether the Crown could establish an overt act committed by the Accused in aid of the conspiracy. With that being a critical issue in the trial, it was submitted that the extremist material would operate to distract the jury from that issue in a manner which was highly prejudicial to the Accused.

8. [50]

   In the course of submissions, Senior Counsel for the Accused proffered a form of admission which the Accused was prepared to make which, it was submitted, would operate to reduce the need for the Crown to adduce the actual extremist material. The proffered admission was in the following form (Exhibit PT2):

9. [51]

   In addition, it was submitted for the Accused that a written description of some of the material, in the manner contained in the supplementary statement of Dr Roger Shanahan dated 29 May 2018 (Tab 8, Exhibit PTA) would suffice. With respect to parts of the “Bricks Forum”, it was submitted for the Accused that only those postings made by the Accused or those made by others to which he responded should be admitted into evidence.

10. [52]

    For the purpose of ruling on this objection, parts of the extremist material were played in Court. This material is contained on a DVD and USB stick located in Exhibit PTA. In addition, the Crown referred to summary printouts of communications between the Accused and others and photographic and other attachments to these communications.

11. [53]

    Behind Tab 3 of Exhibit PTA is a statement of Federal Agent Michael Wellings dated 8 June 2016 together with a summary of Nasheeds. These are chants or a musical form of Arabic poetry used by jihadist groups to motivate Muslims to take up the fight. A disk or disks containing a large number of Nasheeds were seized from the Accused’s vehicle on 7 October 2015.

12. [54]

    The Nasheeds played at the pretrial hearing included some still images of deceased persons and battle images with the Islamic State flag being a constant feature of a type of recurring call to arms in support of jihad.

13. [55]

    Also located in the possession of the Accused was a disk containing a 181-page book entitled “The Book of Jihad” (also behind Tab 3 of Exhibit PTA). The Crown proposes to tender a printout of this book.

14. [56]

    Behind Tab 5 of Exhibit PTA is a statement of Detective Senior Constable Darine Eljarrar dated 9 June 2017 which sets out a review process undertaken by that officer with respect to the Accused’s Apple iPhone 6 Plus mobile phone. Having undertaken a review of contacts, calls and SMS messages of interest, social media chats, web history searches, documents and audio/image/video files of interest, Detective Senior Constable Eljarrar produced a 232-page summary.

15. [57]

    Also tendered at the pretrial hearing was Exhibit PTD, an ideological compilation of material located on the Accused’s phones, including communications sent by and to him on the WhatsApp “Bricks Forum”.

16. [58]

    Some of the strongest material, upon which the Crown seeks to rely, is contained in the execution videos located on Isdarat.tv and Sendvid.com/chulepne.

17. [59]

    Some examples of communications by the Accused will suffice for present purposes.

18. [60]

    On 30 June 2015, the Accused posted on the WhatsApp “Bricks Forum” a message “May Allah bring them to the haq [‘truth’ or ‘right’] and unite the ummah [the universal world order ruled by the Caliph] under one banner” (Exhibit PTA, Tab 5, pages 38-39).

19. [61]

    In the course of postings on a different chat group (“WhatsApp Chat 38”), the Accused posted, on 23 August 2015, a message “Only the flag of tawheed [‘Islamic State’]” (Exhibit PTA, Tab 5, page 117).

20. [62]

    In the course of postings on yet another chat group (“WhatsApp Chat 39”), the Accused posted, on 23 August 2015, a message “Ahah Akhie [my brother] never can the caliphate be defeated” (Exhibit PTA, Tab 5, page 121).

21. [63]

    Also on the “WhatsApp Chat 39” site, the Accused posted, on 24 August 2015, a link to isdarat.tv containing pro-Islamic State material and then the word “Enjoy” (Exhibit PTA Tab 5, page 123).

22. [64]

    On 28 August 2015, the Accused posted on the “WhatsApp Chat 39” site the sendvid.com/chulepne execution video (Exhibit PTA, Tab 5, page 123).

23. [65]

    On 28 August 2015, the Accused posted the sendvid.com/chulepne execution video (Exhibit PTA, Tab 5, page 103).

24. [66]

    On 27 September 2015, the Accused posted two messages saying respectively “Isdarat is back” and “Body: Do use want it” (Exhibit PTA, Tab 5, page 54).

25. [67]

    Also on 27 September 2015, the Accused enquired of Milad Atai and Hozan Alou (“ouzzy”) concerning “Isdarat” - “Milad and ouzzy you open it?” (Exhibit PTA, Tab 5, page 55).

26. [68]

    Later on 27 September 2015, in the course of postings with Raban Alou concerning “head chopping”, the Accused said “Head chopping is part of Islam” (Exhibit PTA, Tab 5, page 56).

27. [69]

    On 28 September 2015, the Accused posted a number of items with photographs which included the Islamic State flag (Exhibit PTA, Tab 5, pages 67-68).

28. [70]

    In the course of an exchange of messages with others concerning Farhad on 5 October 2015, the Accused said “There’s no burial for the Shaheed [‘Muslim Martyr’]” (Exhibit PTA, Tab 5, page 87).

29. [71]

    To the extent that two of the Islamic State items (the Isdarat.tv and Sendvid.com/chulepne videos) contain images of persons being executed by beheading or shooting, the images have been edited by the Crown by the inclusion of a black screen whilst the killings actually take place, with a word description appearing on the screen as to what is happening at that point. Although the material is confronting in its content, the impact of it is significantly reduced by that step, which is consistent with steps taken in other trials where material of this type has been admitted into evidence: R v Benbrika and Ors (No. 15) at [10]; R v Baladjam and Ors (No. 50) at [13].

30. [72]

    Contained within a number of films to be tendered are images of deceased persons. This material is challenging in its content, but involves short images only of deceased persons.

31. [73]

    Of considerable importance to the tender of this material is what it allows to be inferred with respect to the state of mind of the Accused (and his alleged co-conspirators) at relevant times. It is for the purpose of the first and second elements in Count 1 that the Crown seeks to rely upon this material.

32. [74]

    The Crown case is advanced materially by an understanding of the interrelationship between the messages passing to and from the Accused particularly in the period August to October 2015, and his transmission of videos and images during this period. There are further messages sent by and to the Accused on and after 3 October 2015 which are relevant as well to the first and second elements of Count 1. In addition, there are audio recordings of the Accused as part of his messaging at relevant times, including 27 September 2015.

33. [75]

    I accept the submission of the Crown that this material is highly probative with respect to the first and second elements of the first count on the indictment charged against the Accused. Insofar as the third element of the first count directs attention to the conduct of the Accused at different locations on the afternoon of 2 October 2015 in conjunction with Raban Alou, and why the Accused was acting in those ways on that day, this evidence appears relevant to that issue as well. Most of the evidence of the Accused’s movements on 2 October 2015 is undisputed, with the question being why he acted in the way he did.

34. [76]

    I do not accept the defence submission that the Crown case can be properly and fairly advanced before the jury by a combination of bare admissions as proffered for the Accused (see [50] above) and short word descriptions of some of the material. The Crown asserts that the Accused not only possessed this material because of an “interest” in it, but that he held extremist beliefs and that he was prepared to act on them by preparing to commit a terrorist act. The Crown is entitled to have the primary evidence before the jury to support these contentions.

35. [77]

    Consideration of the summary prepared by Detective Senior Constable Eljarrar, in conjunction with the extremist material in electronic form, assists the process of understanding the evidence sought to be tendered by the Crown and the purpose for the tender. I do not consider that the 232-page summary is an appropriate or adequate substitute for the primary visual evidence contained in the images and films at times communicated by the Accused to other persons. It is fair to say that the material which the Crown seeks to tender supports the assertion that the Accused held views at relevant times including the following:

36. [78]

    An understanding of the material, and its suggested connection to Islamic State, will provide the jury with a clear and more direct understanding of what the Accused was thinking and intending at relevant times.

37. [79]

    I accept that the extremist material includes content which, through its imagery and tone, justifies, advocates or incites violent jihad. As the Crown notes, the material includes images designed to invoke both sympathy and anger in the Muslim viewer and is designed as well to create anger and hatred towards Australia and its allies.

38. [80]

    I accept the Crown submission that the extremist material may be used to rebut any defence advanced by the Accused that his views expressed in certain videos were not seriously held, but were merely philosophical, religious or political discussions concerning aspects of the doctrine of Islam: Benbrika v R at 654 [278].

39. [81]

    There is a close similarity between reasons for admitting material of this sort at other trials, and the reasons relied upon the Crown in the present trial. As Whealy J observed in R v Baladjam (No. 50) at [95]-[96], the jury is entitled to see a selected number of images to appreciate the full flavour of the way in which they would have been viewed by the Accused, with a written or verbal description of the images and their content not conveying effectively the exaltation displayed, and intended to be displayed, by the images themselves. Appropriate directions may be fashioned, as Whealy J observed, to explain the relevance of this material when it came to be tendered.

40. [82]

    The decision of Whealy J in R v Baladjam (No. 50) was upheld by the Court of Criminal Appeal in Elomar v R with the analysis undertaken by that Court (at 406-417 [404]-[475]) having considerable utility on the present objection.

41. [83]

    As the Court of Criminal Appeal observed (at 412 [442]), it is not an unreasonable assumption that, when large quantities of video material of a particular kind are found in the possession of a person, that that person has viewed at least some of it or intends to do so. Further, the possession of large quantities of that material indicates an interest of a material kind. It is not sufficient for counsel for the Accused to suggest that the evidence may trigger an emotional response in members of the jury. For the evidence to create a danger of unfair prejudice, it must be shown that it is likely that it will, in some way, be misused.

42. [84]

    The Court of Criminal Appeal in Elomar v R at 413 [447] concluded that Whealy J had made a correct assessment of the probative value of the evidence and its potentially unfair prejudicial effect. The Court observed (at 413 [447]) that there “is nothing unfair about the admission of evidence that shows that an accused person is in possession of material apparently supportive of terrorist activity”. In the present case, the Crown contends that the Accused not only possessed extremist material, but that he communicated some of it to others and made comments in postings which were supportive of the extremist views contained in the material.

43. [85]

    Like the present case, the Crown relied upon the extremist material in Elomar v R with respect to the elements of agreement and state of mind in a charge of conspiracy. The Court of Criminal Appeal said at 417 [473]-[474]:

44. [86]

    In the course of rejecting a ground that Bongiorno J had erred in admitting extremist material of execution videos at the trial of Benbrika and Ors, the Victorian Court of Appeal held that the evidence was highly probative in the Crown’s circumstantial case with respect to the state of mind of the accused and the common commitment of the accused persons: Benbrika v R at 653-655 [275]-[285].

45. [87]

    The reasoning in Elomar v R and Benbrika v R applies, as well, to the extremist material in the present case and a conclusion that it should not be excluded under s.137 Evidence Act 1995 (NSW).

46. [88]

    In R v Ibrahim and Ors, Fulford J (at [62]) rejected the suggestion that juries are incapable of approaching trials of alleged Muslim terrorists or evidence of this kind objectively and dispassionately. With respect, I agree with Fulford J as did Bongiorno J in R v Benbrika (No. 15) at [12].

47. [89]

    Whilst care is required with respect to evidence of this type, it would be a mistake to underestimate the capacity of a jury to view and assess responsibly evidence of this kind. Once again, as Fulford J observed at [61], introduction of this evidence “is a necessary and proportionate step to enable the prosecution to set out all of the available, probative material” which tends to prove the necessary mental state with respect to the Accused.

48. [90]

    Applying the relevant principles, I am satisfied that the extremist material is relevant to issues in the trial and that it has very substantial probative value. Its probative value relates in particular to the first and second elements of the first count. I am not satisfied that there is a real risk of unfair prejudice to the Accused by reason of the admission of the evidence. I am not satisfied that there is a real risk that the evidence would be misused by the jury, or be given more weight than it deserves or would divert the jury from its task or give rise to some illegitimate form of reasoning or be used in a way which is irrational or illogical: Papakosmas v The Queen at 327-328 [98]; BJS v R at 549-550 [51].

49. [91]

    I will direct the jury to view the material dispassionately, without emotion and without bias and that they should not reason that because the Accused may have possessed or published this material that he, for that reason, is guilty of the offences charged. I will give consideration as well to further directions to be given to the jury before the extremist material is tendered, with the directions referred to by Whealy J in R v Baladjam and Ors (No. 50) at [77]-[80] and by the Court of Criminal Appeal in Elomar v R at 409-411 [424]-[431] being of assistance in this respect.

50. [92]

    As indicated in my ruling on 5 June 2018, it is appropriate that the Crown limit the number of items to be tendered, in particular with respect to the Nasheeds. These items involve a level of sophisticated propaganda using verse, music and images. The material appears to have been professionally made by persons intent upon disseminating propaganda to be absorbed by those who may be susceptible to recruitment material of this type. The images are accompanied by chants and music which are no doubt designed to capture the attention of viewers, albeit in a constantly repetitive way. A few examples only of this class of material will suffice to give the jury a reasonable understanding of this evidence.

51. [93]

    It was for these reasons that I ruled on 5 June 2018 that the Crown should be permitted to adduce evidence of extremist material at the trial of the Accused.

Objection to Opinion Evidence of CIN 1877 Concerning Surveillance

1. [94]

   Objection is taken on behalf of the Accused to the Crown calling a witness to be described as Covert Identity Number (CIN) 1877. The Court made orders on 4 June 2018 under the Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW) and the Court Suppression and Non-publication Orders Act 2010 (NSW) permitting the witness to be described in this way for the purpose of his evidence at the pretrial hearing and at the trial itself.

2. [95]

   Statements of CIN 1877 dated 8 and 12 December 2017 were tendered at the pretrial hearing (Tab 1, Exhibit PTA). In addition, CIN 1877 gave evidence at the pretrial hearing (PT46-58).

3. [96]

   The Crown seek to call CIN 1877 to give opinion evidence with respect to a fact in issue at the trial, namely whether the Accused’s conduct on 2 October 2015 amounts to an act in furtherance of the conspiracy to do an act in preparation for a terrorist act.

4. [97]

   [Redacted].

5. [98]

   According to his statements, CIN 1877 has 15 years’ experience in the field of surveillance and counter-surveillance and he has completed and conducted numerous courses and training in relation to the use, detection and planning for anti-surveillance and counter-surveillance techniques by suspected criminals.

6. [99]

   The training, qualifications and experience of CIN 1877 did not come under challenge during his cross-examination at the pretrial hearing.

7. [100]

   The Crown seeks to adduce opinion evidence from CIN 1877 with respect to certain aspects of the Accused’s conduct on 2 October 2015, which are said to be consistent with the Accused using counter-surveillance techniques in order to facilitate and aid Raban Alou meeting with Talal Alameddine without detection so that the firearm could be provided. Particulars of the conduct by the Accused, and the counter-surveillance techniques with which that conduct is said to be consistent, were set out in the statement of CIN 1877 dated 8 December 2017. The opinion evidence of CIN 1877 will be that:

8. [101]

   In the course of evidence at the pretrial hearing, CIN 1877 said that he had expressed his opinions for the purpose of this case after viewing videos and recordings and the Australian Federal Police surveillance running sheet for 2 October 2015 (Exhibit PTE) and not as a result of his attendance or examination of the scenes in question. CIN 1877 was not involved personally in the surveillance operation on 2 October 2015, which was undertaken by officers of the Australian Federal Police.

9. [102]

   CIN 1877 was asked in cross-examination at the pretrial hearing whether a number of his opinions may be also consistent with innocent actions on behalf of the Accused, with aspects of his opinions being tested or challenged by reference to features of the locations. In my view, these aspects of cross-examination of CIN 1877 at the pretrial hearing went more to weight, and to factual issues which would be for the jury to consider in the event that the evidence was allowed.

10. [103]

    I will, however, take into account the cross-examination of CIN 1877 at the pretrial hearing to the extent that those matters may bear upon an objection flowing from ss.135 or 137 Evidence Act 1995 (NSW).

11. [104]

    The Crown submitted that CIN 1877 was qualified for the purpose of s.79(1) Evidence Act 1995 (NSW) to give opinion evidence wholly or substantially based on specialised knowledge arising from his training, study and experience. It was submitted that an opinion can be based on specialised knowledge notwithstanding the fact that the expert takes into account matters of common knowledge in formulating that opinion: Velevski v R (2002) 76 ALJR 402; [2002] HCA 4 at [82], [158].

12. [105]

    The Crown relied upon the decision of the Court of Criminal Appeal in R v Kingswell (New South Wales Court of Criminal Appeal, 2 September 1998, unreported) in support of the proposition that a suitably qualified police officer, with training and experience, is able to give opinion evidence of counter-surveillance techniques. There, Studdert J (Smart and Hidden JJ agreeing) held that a police officer had specialised knowledge for the purpose of s.79 as a result of specialised training and study in the area of surveillance and his lengthy and extensive experience in that field. The Court held that the trial Judge’s reasons for admitting the opinion evidence, and for refusing to exclude it under ss.135 or 137 Evidence Act 1995 (NSW), did not demonstrate error.

13. [106]

    The Crown submitted that the opinion evidence of CIN 1877 was admissible and ought not be excluded.

14. [107]

    Written submissions were made on behalf of the Accused in support of this objection (Pretrial MFI1 and Pretrial MFI4) which were amplified by oral submissions. It was submitted that this was a matter which the jury can assess for itself by common-sense observations and was not a matter in which opinion evidence should be permitted.

15. [108]

    In support of this objection, the Accused sought to rely upon the Australian Federal Police surveillance running sheet (Exhibit PTE), and the videos and photographs of relevant movements by the Accused and others which the Crown proposes to tender at the trial. In this respect, this material was tendered notionally at the pretrial hearing upon the basis that I had viewed previously the relevant footage for the purpose of sentencing Alou and Alameddine (PT81).

16. [109]

    It was submitted for the Accused that CIN 1877 had failed to establish any process of reasoning for his conclusions that is able to provide the jury with sufficient material as to the basis of the opinion, so as to be able to assess its reliability.

17. [110]

    It was submitted that the evidence of CIN 1877 was no different to evidence of identification where a police officer identifies an accused person from a photograph or a video in a situation where the jury would be equally capable of conducting the same exercise. It was submitted that it had not been demonstrated that the opinion of the witness was based upon his expertise or specialised knowledge, rather than merely amounting to an observation that members of the jury can make for themselves. An analogy was sought to be drawn with evidence from a psychologist about the reaction of children in sexual abuse cases, in which it is rarely permissible for the expert to express an opinion as to the actual behaviour of the alleged victim.

18. [111]

    It was submitted that the Court ought disallow the evidence because the Crown had failed to identify any expert opinion based upon an acknowledged or recognised field or body of expertise.

19. [112]

    The Accused submitted as well that the evidence ought be disallowed under ss.135 or 137 Evidence Act 1995 (NSW) on the basis of the so-called “white coat effect”, whereby the jury may be overborne by the opinion of a so-called expert and fail to recognise that the expert’s ability to come to an opinion is no better than their own.

20. [113]

    The Accused submitted that the evidence was significant in this trial as the Crown assertion that the Accused acted as a lookout for Alou was a very important feature of the Crown case against him. Indeed, Senior Counsel for the Accused submitted that this aspect was of critical importance to the Crown case against the Accused.

21. [114]

    The onus of establishing the conditions of admissibility of the opinion evidence of CIN 1877 rests on the Crown as the party seeking to adduce the evidence: s.142 Evidence Act 1995 (NSW); Dasreef Pty Limited v Hawchar at 602-603 [31]; Ward v R (2018) 55 VR 307; [2018] VSCA 80 at 325 [85].

22. [115]

    The starting point in determining admissibility of opinion evidence is relevance - what is the fact in issue that the Crown asserts the opinions of CIN 1877 prove or assist in proving in this case: Honeysett v The Queen at 132 [25] (see [38] above). Here the particular fact in issue is whether the conduct of the Accused on the afternoon of 2 October 2015 amounts to an act in furtherance of the alleged conspiracy to do an act in preparation for a terrorist act (the third element of the first count). The conduct of the Accused on that day may bear as well on proof the first and second elements of the first count. The evidence relevant to the three elements may be seen to be overlapping in this case.

23. [116]

    The two conditions of admissibility in s.79 Evidence Act 1995 (NSW) were identified in the extract from Honeysett v The Queen set out at [38] above.

24. [117]

    With respect to the first condition, I am satisfied that CIN 1877 has specialised knowledge based on his training, study and experience in the field of surveillance, including anti-surveillance and counter-surveillance methods and measures. CIN 1877 has substantial qualifications and experience in the area of surveillance and this aspect of his evidence did not come under challenge in cross-examination at the pretrial hearing.

25. [118]

    I accept that CIN 1877 has specialised knowledge for the purposes of s.79 Evidence Act 1995 (NSW) as a result of his training and study in the area of surveillance and his lengthy and extensive experience in that field. As a result of that training, study and experience, CIN 1877 has acquired knowledge which is more than subjective belief or unsupported speculation. Although members of the public (and the jury) may have some basic understanding of avoidance action which a person might possibly take to avoid detection by the police, the specialised knowledge of CIN 1877 concerning counter-surveillance and anti-surveillance measures goes far beyond the type of understanding which members of the public might possess.

26. [119]

    The decision of the Court of Criminal Appeal in R v Kingswell demonstrates that specialised knowledge such as that possessed by CIN 1877 may be applied for the purpose of s.79(1). This area of specialised knowledge is to be distinguished from common knowledge. Although ordinary members of the public (and members of the jury) may be able to form suspicions or otherwise speculate concerning the movement of persons and vehicles in this case at different locations over a period of time, CIN 1877’s specialised knowledge allows the expression of opinions concerning these events which are relevant and probative concerning facts in issue in the trial. The first condition under s.79(1) is satisfied in this case.

27. [120]

    With respect to the second condition, I am satisfied that CIN 1877’s opinions are (at least) based substantially on his specialised knowledge based on his training, study and experience. The fact that part of CIN 1877’s body of specialised knowledge (to some extent) relates as well to “observations and knowledge of everyday affairs and events” does not render it inadmissible where, as here, the opinion is based substantially upon his specialised knowledge. The second condition of admissibility under s.79(1) is satisfied in this case.

28. [121]

    I am satisfied that the witness is calling upon a field of specialised knowledge and experience which he possesses in expressing opinions concerning the movements of persons (including the Accused) at various locations on 2 October 2015.

29. [122]

    It is no impediment to the admissibility of the evidence that CIN 1877 is working off a video and documents without personal attendance by him at the various locations involved. Nor does it bear upon the issue of admissibility that the opinions which he expresses were not included by others in the surveillance running sheet (Exhibit PTE).

30. [123]

    The jury will be asked to view the same recordings and to bring their minds to bear on what they observe.

31. [124]

    However, CIN 1877 has specialised knowledge as to acts observed on the videos which have as available (but not necessarily conclusive explanations) the use of counter-surveillance and anti-surveillance measures. Without the assistance of this opinion evidence, the jury may regard the movements of the Accused on that day in accompanying Alou to various locations, and in taking other action, as being unusual or even odd. However, the opinion evidence of CIN 1877 will provide further assistance to the jury by way of an explanation for the movements of the Accused with it being a matter for the jury to reach a conclusion on the issue by reference to all the evidence.

32. [125]

    I do not regard the analogies suggested on behalf of the Accused as being pertinent. The present situation is different to that where police officers purport to identify a person in a video or photograph. That process does not involve the use of any specialised field of knowledge. Further, I do not think that the position is analogous to that of the psychologist who is called upon to express an opinion as to how a child who has been subject to sexual abuse will act after the event.

33. [126]

    In this case, the Crown is to rely upon direct visual evidence of acts and movements of the Accused, in conjunction with Alou and others, at various times and at various locations on the afternoon of 2 October 2015. It appears that there is little factual dispute concerning the primary facts, most of which are recorded in video or photographic evidence or in observations recorded in Exhibit PTE. The principal issue concerns the reason or reasons why the Accused acted in the ways he apparently did on the afternoon of 2 October 2015.

34. [127]

    The opinion evidence of CIN 1877, based upon his specialised knowledge and experience, will assist the jury with an available explanation for the movements of the Accused in the ways depicted. Although members of the jury may be able to draw upon their common experience and knowledge to form the view that the movements of the various persons appear unusual or perhaps even odd, the opinion evidence of CIN 1877 will provide additional assistance to the jury by reference to steps which a person may take by way of counter-surveillance or anti-surveillance measures.

35. [128]

    I do not consider there is any real risk of the so-called “white coat effect” having application in this case. This is not a case involving complex scientific or technical issues. The concepts being discussed may be understood by the jury. I do not consider there is a real risk that CIN 1877’s evidence will be cloaked with a mantle of expertise which it did not deserve: Morgan v R (2011) 215 A Crim R 33; [2011] NSWCCA 257 at 61 [145]. Rather, the evidence of CIN 1877 will provide additional specialised information to the jury, which may be taken into account for the purpose of the jury reaching its own factual conclusions with respect to these events.

36. [129]

    I am satisfied that the opinion evidence of CIN 1877 is admissible and that it should not be excluded under ss.135 or 137 Evidence Act 1995 (NSW).

Conclusion

1. [130]

   It was for the reasons contained in this judgment that I made the evidentiary rulings on 5 June 2018 as set out at [4] above.