Faheem Khalid Lodhi v Regina

CITATION: Faheem Khalid Lodhi v Regina [2007] NSWCCA 360

AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 Alexander v The Queen (1979-1980) 145 CLR 395 Attorney General of New South Wales v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 Attorney General of New South Wales v X [2000] NSWCA 199; (2000) 49 NSWLR 653 Australian Building Construction Employees' and Builders Labourers' Federation v The Commonwealth (1986) 161 CLR 88 Bugmy v The Queen (1990) 169 CLR 525 Carter v Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121 Chester v The Queen (1998) 165 CLR 611 Chu Kheng Lim v Minister of Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 Bass v Permanent Trustee Company Ltd [1999] HCA 9; (1999) 198 CLR 334 Bendix Autolite Corp v Mid Wesco Enterprises Inc 486 US 888 (1988) Bounds v The Queen [2006] HCA 39 Dietrich v The Queen (1992) 177 CLR 292 Director of Public Prosecutions v Coe [2003] NSWSC 363 Drazkiewicz, Court of Criminal Appeal, 23 November 1993 unreported. Evans v Marmont (1997) 42 NSWLR 70 Ex Parte Bread Manufacturers Ltd; v Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242 Fardon v Attorney General of Queensland [2004] HCA 46; (2004) 223 CLR 575 Fencott v Muller (1983) 152 CLR 570 Festa v The Queen (2001) 208 CLR 593 H A Bachrach Pty Ltd v Queensland [1998] HCA 54; (1998) 195 CLR 547 Harris v Caladine (1991) 172 CLR 84 Hinch v Attorney General of Victoria (1987) 164 CLR 15 Ibbs v The Queen (1987) 163 CLR 447 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 Liyanage v The Queen [1967] 1 AC 259 Markarian v The Queen (2005) 79 ALJR 1048 Meloh [2001] NSWCCA 211 Mickelberg v The Queen (1989) 167 CLR 259 Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173 Powercoal Pty Ltd v Industrial Relations Commission of New South Wales [2005] NSWCA 345; (2005) 64 NSWLR 406 R v Boutrab [2005] NICC 36 R v Brownlowe [2004] NSWCCA 465 R v Burchett (1987) 34 A Crim R 418 R v Cook [2004] NSWCCA 52 R v Richard Bruce Cornwell, 20 February 2003, unreported. R v Cuthbert [1967] 2 NSWR 329 CASES CITED: R v Dwyer [1925] 2 KB 799 R v Ejiofor [2002] OJ No. 891 R v Fung [2002] NSWCCA 479 R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 R v Lisoff [1999] NSWCCA 364 R v Lodhi [2006] NSWCCA 121 R v Lodhi [2006] NSWSC 371; (2006) 163 A Crim R 448 R v Lodhi [2006] NSWSC 691 R v Mai (1992) 25 NSWLR 371 R v Abu Baker Mansha [2006] EWCA Crim 2051 R v Martin (1999) 1 Cr App R (S) 477 R v Mostyn [2004] NSWCCA 97 R v Parole Board ex parte Smith [2005] UKHL 1 R v Roche [2005] WASCA 4; (2005) 188 FLR 336 R v Sakr (1987) 31 A Crim R 444 R v Serratore [1999] NSWCCA 377 R v Shamouil [2006] NSWCCA 112 R v Suteski [2002] NSWCCA 509 R v Taouk (1992) 65 A Crim R 387 R v Totten [2003] NSWCCA 207 R v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 R v John Viana [2001] NSWCCA 171 R v Yates [2002] NSWCCA 520 Ridgeway v The Queen (1995) 184 CLR 19 Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 Scott v R [1989] AC 1242 Smith v The Queen [2001] HCA 50 Stitt (1998) 102 A Crim R 428 The Queen v Glennon (1992) 173 CLR 592 The Queen v Humby; ex parte Rooney (1973) 129 CLR 231 The Queen v Radich [1954] NZLR 86 The Queen v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 355 Thomas v Mowbray [2007] HCA 33; (2007) 81 ALJR 1414 United States v Lopez-Medina 461 F.3d 724 at 741-42 (6th Cir. 2006) United States v Polasek 162 F.3d 878 at 884 (5th Cir. 1998) United States v Romo 669 F.2d 285 at 288-89 (5th Cir. 1982) Veen v The Queen (No 2) (1988) 164 CLR 465 Wong v The Queen [2001] 207 CLR 584 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589

Early in the trial the appellant appealed by leave to this Court under s5F Criminal Appeal Act against the refusal of the trial judge to quash the indictment for duplicity and want of particularity: see [2006] NSWCCA 121. The first ground of appeal raised again matters dealt with in that judgment and the Court declined to deal with them.

17 It is also pertinent to note the express objects provision, s 3: "3(1) The object of this Act is to prevent the disclosure of information in federal criminal proceedings and civil proceedings where the disclosure is likely to prejudice national security, except to the extent that preventing the disclosure would seriously interfere with the administration of justice. (2) In exercising powers or performing functions under this Act, a court must have regard to the object of this Act." 18 Finally s 19 provides: "19(1) The power of a court to control the conduct of a federal criminal proceeding, in particular with respect to abuse of process, is not affected by this Act, except so far as this Act expressly or impliedly provides otherwise. (2) An order under section 31 does not prevent the court from later ordering that the federal criminal proceeding be stayed on a ground involving the same matter, including that an order made under section 31 would have a substantial adverse effect on a defendant's right to receive a fair hearing. …" The Interpretation of s 31(8) 19 Mr P Boulten SC, who appeared for the appellant, focused his constitutional submissions on s 31(8). The starting point for any analysis must be the interpretation of that provision. 20 The difficulty that arises is the use of the superlative, "greatest". If the sub section had referred to "great weight" the issue now agitated before the Court would probably not have arisen at all. 21 In Mr Boulten's submission, this provision constitutes an impermissible usurpation of judicial power because, as a matter of practical reality, the executive certificate, together with the usual supporting evidence, would determine whether or not disclosure is made. A trial judge simply would not have, Mr Boulten submitted, the capacity to formulate an independent judgment about the degree of threat to national security and, save in the case of fanciful claims, would not, as a practical matter, be able to act in any other manner than to enforce the certificate. 22 Accordingly, although in form the legislation purports to confer a discretionary judgment to be exercised by the trial judge, in substance the certificate together with the supporting evidence will prove to be determinative, save in the case of fanciful claims of a risk to national security. 23 Mr Boulten also submitted that, in such a context the public may perceive the Courts to be acting in accordance with the wishes of the Executive branch of Government rather than pursuant to an unimpeded exercise of judicial power. 24 With regard to Mr Boulten's submission that the legislative scheme is such that in substance, albeit not in form, a certificate and supporting evidence will prove determinative, s 31(8) is not distinctive in that regard. Such difficulties often arise in public interest immunity claims, particularly where issues of national security are involved. 25 Mr H Burmester QC, who appeared for the Attorney General, relied on two provisions which, he submitted, minimise any interference with the administration of justice associated with the tilting of the balance in the formulation of the judgment for which s 31(8) calls and the exercise of the discretion to make an order under s 31(2) or s 31(4). 26 The first provision upon which Mr Burmester relied is s 19 which acknowledges the ability of the Court to stay proceedings on the grounds of abuse of process. However, as Mr Boulten also submitted, this ultimate power does not allow for the situation in which an adverse impact occurs on the fairness of the trial, but the relevant imperfection is not such as to justify a stay. 27 Mr Boulten's submission should be accepted in this respect. Although the Court's power to order a stay of proceedings to prevent abuse of its process is acknowledged, it is a power that is rarely exercised, particularly where criminal proceedings are instituted with respect to charges of a serious character, as will often be the case where issues of national security arise. This ultimate fallback power is not entitled to significant consideration in determining whether or not this legislative scheme impermissibly intrudes upon the exercise of judicial power. 28 The second provision upon which Mr Burmester relied is the Objects clause, s 3, in particular the requirement in s 3(2) that the Court must have regard to the object when exercising powers or performing functions. Section 3(1) is fully set out above. It states that the object of the Act is to protect national security, but to do so only to a limited extent. The limitation arises by reason of the words: "except to the extent that preventing the disclosure would seriously interfere with the administration of justice." 29 Accordingly, when exercising the function of giving "greatest weight" to the "risk of prejudice to national security" a court must "have regard" to the object of the Act to avert such 'prejudice', but not absolutely. The avoidance of 'prejudice' is qualified wherever non-disclosure of information "would seriously interfere with the administration of justice." 30 A statutory requirement to "have regard to" a specific matter, requires the Court to give the matter weight as a fundamental element in the decision making process. (R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 320; The Queen v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 355 and 338; Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 at 602, [71]-[73]). An equivalent formulation is that the matter so identified must be the focal point of the decision making process. (See Evans v Marmont (1997) 42 NSWLR 70 at 79-80; Zhang supra at [73].) 31 There is a tension between the objects clause and s 31(7) and (8). The reference in s 3(1) to "seriously interfere with the administration of justice" is capable of being regarded as coincident with the formulation "a substantial adverse effect on the defendant's right to receive a fair hearing". In my opinion, where there is a "substantial adverse effect on the right to receive a fair hearing," then it would be concluded that there had been a 'serious interference with the administration of justice'. It is a difficult task to avoid prejudice to national security, whilst having regard to the proposition that that objective should not prevail where disclosure of information would seriously interfere with the administration of justice. Nevertheless, that is the task which Parliament has set for the Court. As I will indicate below, balancing incommensurable interests is a task to which courts are accustomed. 32 Mr Burmester also submitted that the word "greatest" is used for grammatical reasons. (Accepting the reasoning of Whealy J in R v Lodhi [2006] NSWSC 371; (2006) 163 A Crim R 448 at 469 [108]). Although the primary focus in s 31(7) is on the balancing of national security interests, to which par (a), refers and the right to receive a fair trial, to which (b) refers, par (c) permits the Court to take into account any other matter that it considers relevant. 33 As a matter of grammar this submission is correct. If only (a) and (b) had been present in subs (7) then the formulation in subs (8) would have used the word "greater", rather than "greatest". In a case, such as the present, where in substance the relevant balancing exercise is between pars (a) and (b), that is how subs (8) should be construed. 34 Mr Burmester, on the basis of the interpretation he advocated, submitted that the degree of interference with the exercise of the judicial power is lower than that submitted by the appellant. In particular he submitted that, in circumstances where there was a substantial adverse effect on the right to receive a fair trial, but the risk of prejudice to national security was "low", then the trial judge in giving "greatest weight" or "greater weight" to the latter would still order disclosure.

45 This tilting or "thumb on the scales" approach to a balancing exercise does not involve the formulation of a rule which determines the outcome in the process. Although the provision of guidance, or an indication of weight, will affect the balancing exercise, it does not change the nature of the exercise. (See also Attorney General of New South Wales v X [2000] NSWCA 199; (2000) 49 NSWLR 653 especially at [65]-[66], [71], [81]-[84].) 46 It may be that the interposition of a rule or standard applicable before the process of balancing is undertaken will lead to the conclusion that the process does not involve a balancing exercise at all. However, that is not the case where the common law principle or statute identifies one interest as more important than another in a particular context. 47 To give more weight to one matter over another is a task that is often performed in the course of balancing conflicting interests. (See V Luizzi "Balancing of interests in Courts" (1980) 20 Jurimetrics Journal 373 especially at 387-390.) I also agree with the author's observation at 373 that: "Although we may all recognise the difficulties of balancing the conflicting interests of parties and citizens, we all share a common intuitive grasp of, or at least are in agreement about, what the metaphor of balancing interests entails." 48 The formulation by judges of guidance for the conduct of a balancing exercise between incommensurable interests is a process for which there is some analogy to the legislative task. As Benjamin Cardozo said of a judge engaged in such a process: "If you ask how he is to know when one interest outweighs another, I can only answer that he must get his knowledge just as the legislator gets it, from experience and study and reflection; in brief, from life itself. Here, indeed, is the point of contact between the legislator's work and his. The choice of methods, the appraisement of values, must in the end be guided by like considerations for the one as for the other. Each indeed is legislating within the limits of his competence. No doubt the limits for the judge are narrower. He legislates only between gaps. He fills the open spaces in the law." ( The Nature of the Judicial Process , (1921) Yale University Press New Haven and London at 113).

Legislative Usurpation 49 The separation of powers issue which arises on the submissions in the present case is whether the NSI Act, especially by force of s 31(8), does "usurp or infringe" (Liyanage v The Queen [1967] 1 AC 259 at 289), the judicial power of the Commonwealth which Ch III of the Constitution vests exclusively in the judiciary, including in State courts exercising federal jurisdiction. 50 One test is to consider whether the "legislation in question interferes with the judicial process itself". (Australian Building Construction Employees' and Builders Labourers' Federation v The Commonwealth (1986) 161 CLR 88 at 96; quoted with approval in H A Bachrach Pty Ltd v Queensland [1998] HCA 54; (1998) 195 CLR 547 at 563 [19] and see 564 [21]. 51 Alternatively to the language of "usurpation" or interference, Liyanage has been referred to as authority for a test of whether the legislature "attempted to circumscribe the judicial process." (See Australian Building Construction Employees' supra at 96, not quoted in Bachrach supra). This terminology was adopted by Mason J in The Queen v Humby; ex parte Rooney (1973) 129 CLR 231. His Honour referred to Liyanage and said at 250: "The legislation in question was of an unusual character, it constituted a marked interference with the judicial process and circumscribed the judicial function and the discretions incidental to it." 52 Can it be said that s 31(8) impermissibly usurps, interferes with or circumscribes a discretion incidental to the exercise of the judicial power of the Commonwealth? 53 Perhaps the most frequently cited test for legislative usurpation is "a law which requires or authorises the courts … to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power". (Chu Kheng Lim v Minister of Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27 per Brennan, Deane and Gaudron JJ) Their Honours concluded that it would be an "impermissible intrusion into the judicial power … for the Parliament to purport to direct the courts as to the manner and outcome of the exercise of their jurisdiction". (Chu Kheng Lim supra at 37.) 54 Can it be said that s 31(8) impermissibly requires the exercise of judicial power in a manner inconsistent with the essential character of a court, or that it purports to direct the courts as to the manner of the exercise of their jurisdiction? 55 The most recent formulation of this principle is in the joint judgment of Gummow and Crennan JJ in Thomas v Mowbray [2007] HCA 33; (2007) 81 ALJR 1414 at [111], with whom Callinan J (at [600]) and Heydon J (at [651]) relevantly agreed: "… [I]t may be accepted for present purposes that legislation which requires a court exercising federal jurisdiction to depart to a significant degree from the methods and standards which have characterised judicial activities in the past may be repugnant to Ch III ."

56 Can it be said that s 31(8) departs to a significant degree from "the methods and standards" of traditional judicial activity? 57 Various statements appear in the authorities identifying the essential characteristics of the judicial process, which the Parliament cannot modify without infringing the separation of powers in Ch III of the Constitution. (See eg. R v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374; Fencott v Muller (1983) 152 CLR 570 at 608; Harris v Caladine (1991) 172 CLR 84 at 150; Bass v Permanent Trustee Company Ltd [1999] HCA 9; (1999) 198 CLR 334 at [45]-[46], [56]. Legislation which tilts the balancing exercise involved in the equivalent of determining a public interest immunity claim does not, in my opinion, fall within any of these statements. 58 The case which is closest to the issue raised on this appeal is Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173, where the High Court upheld the constitutional validity of legislation permitting the admissibility of evidence obtained in circumstances where law enforcement officers had committed a criminal offence in a "controlled operation". The legislation limited the exercise of the Court's discretion to exclude such unlawfully obtained evidence, a discretion affirmed by the High Court in Ridgeway v The Queen (1995) 184 CLR 19. 59 The limitation enacted as s 15X of the Crimes Act 1914 (Cth), and upheld in Nicholas, was directed, in terms, to the admissibility of evidence. It relevantly provided: "In determining … whether evidence that narcotic goods were imported … should be admitted, the fact that a law enforcement officer committed an offence … is to be disregarded …" if certain conditions are met. Section 15X was of significance for controlled operations which occurred before commencement of the Act, other provisions of which had the effect of decriminalising the involvement of a law enforcement officer in a later controlled operation. 60 Section 15X did not abolish the relevant discretion. It removed an element, albeit a particularly pertinent, indeed critical, element, from the process of exercising the discretion. 61 Four of the majority judgments in Nicholas (Brennan CJ, Toohey, Gummow and Hayne JJ) emphasised that s 15X limited the discretion of the Court to exclude evidence and that the common law of evidence had often been changed by legislation. (See at [23]-[24], [25]-[26], [53], [55], [151]. [161]-[162], [235]-[236], [238].) 62 The obtaining of evidence is the principal legitimate forensic purpose of a subpoena to produce documents, and the approach applicable to the admissibility of evidence offers a close analogy to the present case. Like s 15X considered in Nicholas, s 31(8) of the NSI Act, is a rule which limits the discretion of the court, relevantly, with respect to access to documents as distinct from admissibility. The reasoning of the majority judgments in Nicholas is, in my opinion, applicable. Disclosure of documents involves a matter of procedure, which has also frequently been amended by legislation. 63 This conclusion is reinforced by the emphasis in the four majority judgments in Nicholas to the effect that the discretion, upon which the legislation impinged, involved the balancing of conflicting public policy considerations. Their Honours accepted that the alteration of the way the balance should be struck in that case did not constitute an impermissible usurpation of the judicial power ([35]-[36], [55], [159]-[160], [164], [234], [244]). 64 As Gummow J put it at [160]: "The legislature has now … struck a different balance between these competing interests." 65 And as Hayne J said at [238]: "In the case of this particular discretion, the exercise of which depends upon the balancing of competing considerations, I see no intrusions on the judicial power by the legislature saying that in some kinds of case, one consideration (that of preserving the reputation of the courts by their not being seen to condone law breaking) is to be put to one side in favour of the consideration that persons committing a particular kind of crime should be convicted and punished." 66 A similar approach is, in my opinion applicable to s 31(8) of the NSI Act. The legislature has "struck a different balance". It has, to some degree, "put to one side" the public and private interest in obtaining all potentially relevant information, "in favour of" the public interest in national security. This, in my opinion, is constitutionally permissible. 67 I have discussed the process of balancing competing interests above. As I have noted, in certain areas the common law has tilted the balance. Doing so does not alter the essential quality of the task being performed. If the legislature tilts the balance in some way, it cannot be said that doing so is "inconsistent with the essential character of a court or with the nature of judicial power" (Chu Kheng Lim); nor that it interferes with the judicial process itself or "circumscribes a discretion incidental to the judicial process" (Australian Building Construction Employees'); nor that it constitutes, a "direction to the courts as to the manner of the exercises of jurisdiction" (Chu Kheng Lim); nor that it requires the court "to depart to a significant degree from the methods and standards which have characterised judicial activity" (Thomas v Mowbray). 68 Claims for public interest immunity require the balancing of the public interest in non-disclosure against the public interest in the administration of justice, reflecting the cognate private interest to ensure disclosure of all facts which may directly or indirectly be relevant to a trial. The statutory scheme of the NSI Act is analogous to such a claim. 69 It is characteristic of all the forms of privilege which the common law has long recognised, that potentially relevant facts will be withheld from a litigant. A successful claim of public interest immunity is one example of such an effect. The legislative tilting of the balance, accepted in Nicholas is, in this respect, similar to the tilting of the balance by s 31(8) of the NSI Act. 70 The final aspect of the majority judgments in Nicholas, to which I wish to draw attention are the references to the protection of "the integrity of the judicial process." (See at [37], [167], [234], [286], [239], [240].) In particular, Gummow J said at [167]: "… [V]iews of public policy may differ, as the judgments in the divided Court in Ridgeway demonstrate. For the legislature to prefer one such view to another is not, of itself, to undermine, in a constitutionally impermissible manner, the integrity of the judicial process in the exercise of the judicial power of the Commonwealth." 71 This emphasis on integrity of the judicial process is similar to the emphasis now given to institutional integrity with respect to the cognate principle applicable to powers or functions that are incompatible with the exercise of judicial power. (See Fardon v Attorney General of Queensland [2004] HCA 46; (2004) 223 CLR 575 at [15], [23], [37], [101], [219]). Indeed Gummow J described "institutional integrity" as the "touchstone" of this principle. (See also Powercoal Pty Ltd v Industrial Relations Commission of New South Wales [2005] NSWCA 345; (2005) 64 NSWLR 406 at [42]-[45]). 72 The modification of judicial procedures by legislation should not be characterised as a legislative usurpation of judicial power, unless it affects the integrity of the judicial process. As noted above, in certain contexts the common law tilts a balancing process without effect on the integrity of the process. Legislation can also do so, without necessarily having such an effect. 73 This focus on whether the integrity of the process has been compromised confirms the conclusion to which I have come above. Tilting the balance with respect to the formulation of a broad evaluative judgment, upon which reasonable minds may differ, does not impinge upon the integrity of the process by which the judgment is formed. It may affect the outcome of the process but not in such a way as to affect its integrity.

The Sentence Appeal 78 The facts and submissions relevant to the sentence appeal are set out by Price J whose judgment I have read in draft. Subject to the following observations I agree with his Honour's judgment. 79 The sentence imposed is a substantial one, particularly in view of the fact that there was no actual injury to persons or property. Nevertheless, as Price J emphasises, the provisions creating the offence are directed to preparatory acts and the seriousness with which Parliament regards such acts is manifest in the maximum penalty. By the extended range of conduct which is subject to criminal sanction, going well beyond conduct hitherto generally regarded as criminal, and by the maximum penalties provided, the Parliament has indicated that, in contemporary circumstances, the threat of terrorist activity, requires condign punishment. 80 The statutory guidepost for the exercise of the sentencing discretion is provided by s 16A(1) of the Crimes Act 1914 (Cth): "16A(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence." 81 The very generality of the language - "a severity appropriate in all the circumstances of the offence" - indicates the breadth of the discretion conferred upon the sentencing judge. In this formulation the Parliament has indicated that the sentencing principles developed at common law, rather than the various provisions in State legislation, should apply to sentencing for Commonwealth offences. (See Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [15].) 82 The Australian common law of sentencing is based on the principle of proportionality which requires that a sentence should not exceed what is proportionate to the gravity of the crime. The basic authority in this regard remains Veen v The Queen (No 2) (1988) 164 CLR 465. The references in the joint judgment in that case to the protection of society are of particular significance for purposes of the exercise of the sentencing discretion in a case such as the present. It is the weight that is appropriate to be given to this element that, in my opinion, justifies the significant sentence imposed by Whealy J upon the appellant. 83 The objective acts of the appellant, which did not go beyond collecting materials for future use, did not give rise to any imminent, let alone actual, threat of personal injury or damage to property. Such preparatory acts, even though criminalised, would not at first appear to justify so substantial a penalty. However, the position is different in the light of his Honour's clear and justifiable findings of fact that the appellant has not resiled from the extremist intention with which these acts were performed. 84 As Price J notes, the issues involved in sentencing for offences of this character were considered by the Court of Criminal Appeal of Western Australia in R v Roche [2005] WASCA 4; (2005) 188 FLR 336. I agree with the observations made by Price J about that judgment. 85 Roche was not, however, the first Court of Criminal Appeal to consider in detail sentencing principles relevant to crimes of this character. In R v Sakr (1987) 31 A Crim R 444 the Court of Criminal Appeal of Victoria was concerned with an offender who had placed explosive devices with intent to cause an explosion likely to endanger life or cause serious injury to property. The offence in that case was motivated by financial considerations and, accordingly, issues of personal deterrence were relevant in a manner which, for reasons I will discuss below, are not as pertinent to the offence presently under consideration. 86 In that context Crockett J said at 451: "The use of bombs and explosives is the trademark of the terrorist, whose acts of lawlessness have engendered a special revulsion that is due not only to the fact that death is so often the intention of the perpetrator, but also because the recklessness with which the offence is, by its very nature, invested is so likely to lead to the loss of innocent lives and, less importantly, to the destruction of the property of innocent third persons. It is an offence that is callous in its conception, wanton in its perpetration and, if the intent is given effect to ruthlessly destructive in its aftermath. It is a crime that is relatively novel in this country, as I have already indicated, and yet it is plain that there is a community recognition that it is regarded with a particular repugnance because its commission represents a profound assault upon a stable society and the law and the law and order that is necessary for that society's survival. Those responsible for such reprehensible conduct must expect to suffer condign punishment. If ever there were a case in which the nature of the offence and the circumstances of its commission, called for a deterrent penalty, then this is that case. The court is justified in believing that the community would expect that the punishment to be imposed should mark its intention, so far as it might be within the power of the court to do so, to arrest the incipient growth of terrorist-style criminal activity in this community." 87 I agree with these observations. The reference to deterrence in this passage was, no doubt, a reference to both general and specific deterrence. However, deterrence in both respects may, in many cases, be entitled to less weight whenever it appears, as the example of suicide bombers suggests, that the force of an ideological or religious motivation is such that deterrence is unlikely to work. 88 The crimes under consideration in the present case, in which the conduct must occur with the "intention of advancing a political, religious or ideological cause" (Div 100.1), together with the findings of fact made by Whealy J, suggest that deterrence is of less significance than usual. In such a context, the element of protection of the community is entitled to greater weight than may otherwise be appropriate. 89 In R v Martin (1999) 1 Cr App R (S) 477 at 480, Lord Bingham CJ, as the Senior Law Lord then was, said: "In passing sentence for the most serious terrorist offences, the object of the Court will be to punish, deter and incapacitate; rehabilitation is likely to play a minor (if any) part". 90 In Roche McKechnie J, with whom Murray ACJ agreed, quoted this sentence at [112], and adopted as one of the sentencing principles applicable to a case of this character at [119]: "For the most serious terrorist offences the sentence must be of a severity appropriate to the circumstances. The object of the sentence is to punish, deter and incapacitate." 91 Although it is necessary to treat remarks made in a different statutory context with care I note that in R v Parole Board ex parte Smith [2005] UKHL 1 at [23] Lord Bingham referred to "the well-known objects of a custodial sentence (retribution, personal and general deterrence, incapacitation, reform, rehabilitation). But the predominant purpose of the sentence will be punitive …". 92 I will refer below to some aspects of the debate about the role of incapacitation in the exercise of a sentencing discretion. However, for purposes of its application in Australian law, this element should be understood as encompassed by the element of "protection of the community", recognised as a separate element by the High Court in Veen (No 2). 93 There is authority in Australia which suggests that "protection of the community" is an overall umbrella identifying the purpose of all of the different elements traditionally listed as matters to which consideration must be given in the exercise of a sentencing discretion. Those matters include punishment, general and specific deterrence, and rehabilitation, but not, in Australian authority, separate reference to an element of incapacitation. The authorities which adopt community protection as an umbrella, rather than as a separate element, include the frequently cited judgments of R v Cuthbert [1967] 2 NSWR 329 at 330, and The Queen v Radich [1954] NZLR 86 at 87. 94 However, the analysis by the High Court in Veen (No 2) clearly treats the element of protection of the community as separate. In Veen (No 2) the joint judgment expressly stated at 476: "The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case." 95 Similarly at 477 the joint judgment referred to a particular circumstance in which: "retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted". 96 The joint judgment made it clear that the principle of proportionality required the element of "protection of society" to be taken into account as a separate matter, but not in such a way as would fail to give appropriate weight to other factors. The joint judgment said at 473: "It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible." 97 The reference to "merely to protect society" and "merely by way of preventive detention" indicates that the "protection of society" is a relevant consideration and, in appropriate circumstances, will be entitled to weight. 98 Mason CJ, who was part of the majority in Veen (No 2), had made pertinent observations in the first case, which are consistent with the joint judgment in the second. His Honour observed: "The protection of the community from violent crime, it has always been recognized, is a very important factor to be taken into account in sentencing. It would be surprising if it were otherwise. The court must, in sentencing a person who has been convicted of a very serious offence involving violence, if his record and the expert evidence plainly demonstrate that there is a real likelihood of his committing that kind of offence again if he is restored to liberty, ensure by the order which it makes that he will not be released whilst that likelihood continues. If it should appear that the propensities or predilections of the person convicted are such that the imposition of life imprisonment is necessary to protect the community from violent harm, then the court should impose that penalty. In the case of a very serious offence involving violence, it will rarely transpire, if at all, that a sentence of life imprisonment is disproportionate to the offence of which the prisoner has been convicted, given that he has a prior record of conviction for that class of offence and that he has a propensity, because he is unstable or disordered, to commit violent crime. In saying this it is not my intention to deny, or derogate from, the principle that the punishment to be inflicted must be proportionate to the crime. Rather it is my purpose to say that the conflict between that principle and the object of protecting the community arises in relation to less serious offences where the proportionality principle inhibits the imposition of a long term sentence which might otherwise be thought necessary to protect the community." ( Veen v The Queen (1979) 143 CLR 459 at 467-468.) 99 Subsequent authority in the High Court similarly appears to regard protection of society as a distinct element. 100 In Bugmy v The Queen (1990) 169 CLR 525 at [16] Mason CJ and McHugh J said: " … Factors such as deterrence of others from crime and the protection of society from the prisoner would assume a secondary importance to the individual welfare of the prisoner." 101 In AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 McHugh J said at [14]: "Many, probably a large bulk of, sentences reflect compromises between conflicting objectives of sentencing. One objective is to impose a sentence that reflects adequate punishment for the culpability of the convicted person, having regard to the community's view concerning the need for retribution, denunciation, deterrence, community protection and sometimes vindication." 102 In Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 at [147] Hayne J said: " … [M]uch weight was to be given to considerations of denunciation and general deterrence as well as to questions of community protection ." [Emphasis added] 103 In Fardon v Attorney General of Queensland [2004] HCA 46; (2004) 223 CLR 575 Gleeson CJ said: "[20] … [A]s Veen (No 2) held, common law sentencing principles have long accepted protection of the community as a relevant sentencing consideration." 104 To similar effect, in Thomas v Mowbray [2007] HCA 33; (2007) 81 ALJR 1414 at [109] Gummow and Crennan JJ quoted the first of the extracts I have quoted above from Veen (No 2) at 476 and said: "[109] The protection of the public as a purpose of decision-making is not alien to the adjudicative process. For example, it looms large in sentencing after the determination of criminal guilt." 105 The reference in Veen (No 2) to preventive detention reflects a controversial aspect of the acceptance of incapacitation, being the terminology that Lord Bingham used in the context of sentencing for terrorist offences, which has been debated in the sentencing literature and in a number of judgments. (See e.g. Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 at 305 per Kirby J.) 106 The difficulty of predicting future behaviour, which is in any event inherent in other sentencing principles including general and personal deterrence and rehabilitation, is often referred to as one of the defects of reliance on individual incapacitation as a basis for increasing the severity of a sentence. The other significant issue is the sense of unfairness of punishing a person not for what they have done, but for what they may do in the future. (See generally Franklin Zimring and Gordon Hawkins Incapacitation: Penal Confinement and the Restraint of Crime (1995) Oxford University Press, New York, at 62ff; Andrew Ashworth "Criminal Justice Act 2003 (2) Criminal Justice Reform: Principles Human Rights and Public Prosecutions" (2004) Criminal Law Review 516 esp at 519-521; Mirko Bagaric "Incapacitation, Deterrence and Rehabilitation: Flawed Ideals or Appropriate Sentencing Goals?" (2000) 20 Criminal Law Journal 21 esp at 28-29; Andrew von Hirsch and Andrew Ashworth Principled Sentencing: Readings on Theory and Policy (1998) Hart Publishing, Oxford Ch 3; Andrew Ashworth Sentencing and Criminal Justice 4th ed (2005) Cambridge University Press, Cambridge at 80ff.) 107 In this respect it is pertinent to note the observations of Gleeson CJ in Fardon supra at 589-590: "The way in which the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release is an almost intractable problem. No doubt, predictions of future danger may be unreliable, but, as the case of Veen shows, they may also be right. Common law sentencing principles, and some legislative regimes, permit or require such predictions at the time of sentencing, which will often be many years before possible release. If, as a matter of policy, the unreliability of such predictions is a significant factor, it is not necessarily surprising to find a legislature attempting to postpone the time for prediction until closer to the point of release." 108 In the context of the crimes presently under consideration, incapacitation does not merely refer to the prospect that in the future a particular offender will re-offend. With respect to the crime of preparation for terrorist acts the Court is not simply concerned with future criminal conduct of a recidivist character. It is concerned with the possibility of perfection of the very crime for the preparation of which the offender has been found guilty. 109 Accordingly, the issue is not merely one of punishing an offender for something s/he may do in the future. It is the recognition that the protection of society requires the offender to be prevented from perpetrating the offences which s/he was preparing to commit. Giving the element of protection of society substantial weight, particularly in a context where personal deterrence and rehabilitation are, given the nature of the offence and the findings of fact, entitled to little weight, is consistent with the principle of proportionality laid down in Veen (No 2). 110 For these reasons I agree that the sentences imposed were well within the exercise of the sentencing discretion by the sentencing judge. The protection of the community required a substantial sentence and his Honour was correct to impose one.

The facts 116 The facts found by his Honour were as follows: [2006] NSWSC 691 at [8] - [36] -

124 Not all the evidence I have summarised was objected to. That which was is as follows - 1. Yong Ki Kwon identified a photograph of Brigitte as of a man with whom he had trained every day and to whom he had spoken every day at a Lashkar-e-Taiba training course in 2001. The man had called himself Salahudin. 2. Rashid Altaf and Rashid Ahmad gave evidence. Mr Altaf lived at the premises in Boorea Avenue Lakemba where a man calling himself Jamal came to live. Mr Altaf identified a photograph of Brigitte as of the man Jamal. Mr Altaf's friend, Rashid Ahmad, used to visit him there. During the first week of Jamal's residence there, Jamal received a visit from two men. One was a Bengali whom Mr Altaf and Mr Ahmad recognised as a butcher who worked in a shop in Lakemba. They identified him by photograph as Hasan, the person previously referred to in these reasons. They did not recognise the other. He said that he was working as an architect in the city, that he came from Sialkot, Pakistan and that he had recently returned to Australia from that country. 3. Evidence of things found at Brigitte's premises. 4. Evidence of telephone records showing that a telephone found in Brigitte's premises was used to communicate with a telephone found in the accused's premises. 125 It was submitted on appeal that the evidence objected to could not if accepted rationally affect, directly or indirectly, the assessment of the probability of a fact in issue: Evidence Act 1995 s55. Since the evidence failed that test it was inadmissible: s56(2). 126 In Smith v The Queen [2001] HCA 50, Gleeson CJ, Gaudron, Gummow and Hayne JJ said - [6] As is always the case with any issue about the reception of evidence, identification evidence being no exception, the first question is whether the evidence is relevant. No attention was given to this question in the arguments advanced at trial, or on appeal to the Court of Criminal Appeal, but that question must always be asked and answered. Further, although questions of relevance may raise nice questions of judgment, no discretion falls to be exercised. Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received. Only if the evidence is relevant do questions about its admissibility arise. These propositions are fundamental to the law of evidence and well settled. They reflect two axioms propounded by Thayer and adopted by Wigmore: "None but facts having rational probative value are admissible", and "All facts having rational probative value are admissible, unless some specific rule forbids." [7] In determining relevance, it is fundamentally important to identify what are the issues at the trial. On a criminal trial the ultimate issues will be expressed in terms of the elements of the offence with which the accused stands charged. They will, therefore, be issues about the facts which constitute those elements. Behind those ultimate issues there will often be many issues about facts relevant to facts in issue. In proceedings in which the Evidence Act 1995 (NSW) applies, as it did here, the question of relevance must be answered by applying Pt3.1 of the Act and s55 in particular. Thus, the question is whether the evidence, if it were accepted, could rationally affect (directly or indirectly) the assessment by the tribunal of fact, here the jury, of the probability of the existence of a fact in issue in the proceeding. (footnotes omitted) 127 The Crown case at trial was that the accused had a covert and illicit relationship with Brigitte, a trained terrorist, who came to Australia in circumstances tending to demonstrate that he had done so in connection with the establishment of preparatory steps towards terrorist acts and not as a tourist. It was not the Crown case that the evidence would show that Brigitte was involved in the acts done by the appellant the basis of the charges, but that it completed a circumstantial case, enabling the jury to infer that the appellant had performed the acts charged with the requisite knowledge and intention. 128 Mr Boulten submitted on appeal that the question whether or not Brigitte was present in Australia in circumstances tending to suggest the preparation of terrorist acts was not a fact in issue. It may have been relevant to a fact in issue if the Crown had suggested that the appellant had conspired with Brigitte or was otherwise involved in a joint enterprise with him, but that was not the Crown case. Therefore, it was submitted, evidence relating to Brigitte was not relevant. It was submitted that taken at its highest the evidence was not capable of demonstrating that Brigitte was establishing the preparatory stages of terrorist acts. The evidence established at best that the appellant knew Brigitte and that Brigitte had trained in a terrorist camp. The question to be answered was therefore whether the fact that the appellant knew a trained terrorist could rationally affect the assessment of the probability that his actions were connected with a terrorist act or, in relation to count two, that his actions were done in preparation for a terrorist act. The answer, it was submitted, was that it could not. It was merely evidence of association between the two men. 129 Mr Boulten relied on a series of cases dealing with evidence of the accused's association with offenders as proof of guilt: United States v Polasek 162 F.3d 878 at 884 (5th Cir. 1998); United States v Lopez-Medina 461 F.3d 724 at 741-42 (6th Cir. 2006); United States v Romo 669 F.2d 285 at 288-89 (5th Cir. 1982); R v Ejiofor [2002] OJ No. 891; Bounds v The Queen [2006] HCA 39 in the judgment of Kirby J at [84] and R v Fung [2002] NSWCCA 479. The facts of those cases are of no particular assistance and need not be repeated here. The United States and Canadian cases were concerned with the wrongful admission of evidence that associates of the relevant accused had been convicted on other occasions on charges of the kind that the accused was then facing. The principle which they establish is that the law does not permit proof of guilt of an accused person merely by proving that the accused associated with other guilty persons. Something more is needed. But there is no law that prevents the Crown from proving all the circumstances in which an act in question was done in order to show that in doing it the accused had a particular state of mind. Those circumstances may include the accused's contemporary association with a person who, whether complicit or not, may be thought to be familiar or concerned with or to have an interest in fostering acts having the character of those charged. If the evidence of association tends to explain why the accused acted as he did, it is probative. 130 It may be accepted, as his Honour recognised, that the evidence could not establish that Brigitte was involved in the acts the appellant was charged with having committed. But I do not consider that the available effect of the evidence was limited in the manner described by Mr Boulten. In giving judgment his Honour said this - For present purposes, the facts in issue extend to and include the mental ingredients of the charges against the accused, described in the Criminal Code Act as fault elements: for example, the physical acts of the accused must have been deliberate; they must have been connected with the preparation for a terrorist act; and the accused must have known, that is have been aware, of the connection. In relation to count 2, the Crown alleges that the accused "intentionally" did an act in preparation for a terrorist act and this state of mind must be proved as well. All the fault elements involved in each charge must be proved beyond reasonable doubt.

The material sought to adduced by the Crown (including the body of evidence identified by Mr Boulten SC and which forms the subject of the present application) is, in my view, all material, which, if it were accepted, could rationally effect the assessment of the probability of the existence of the fault elements I have identified. 131 It seems to me that his Honour's conclusion was correct. The evidence objected to was more than mere evidence of association. The knowledge and intent of the appellant in collecting documents or seeking information or possessing the document specified in the fourth count was to be judged from all the surrounding circumstances. Those circumstances included that he was at all material times in frequent and secret communication with a terrorist trained in Pakistan. The appellant had spent a considerable time in that country. They had a mutual connection there. That terrorist had entered Australia pretending to be a tourist, but using a false name and a telephone service in a false name. By the use of these false names he kept his communications with the appellant secret. Like Brigitte, the appellant used a false name when using his mobile telephone. His intention was to conceal his communications with the trained terrorist. The acts of the appellant relied on by the Crown were committed close to the time of Brigitte's arrest. It seems to me that the evidence was capable of establishing that the appellant had a secret relationship with Brigitte during the time immediately before he committed the acts on which the charges were based. Proof of the relationship explained why he engaged in a series of acts none of which was on its face necessarily one of criminal intent. 132 The alternative submission was that his Honour ought to have excluded the evidence because its probative value was outweighed by the danger of unfair prejudice to the appellant: Evidence Act 1995 s137. Mr Boulten submitted that in assessing the probative value of the evidence his Honour was obliged to conclude that at best it demonstrated that the appellant knew Brigitte, who had trained with a terrorist organisation almost two years earlier. If their relationship was covert that would not make it more likely, without proof of joint criminal activity, that the appellant was engaged in terrorist activity. There was no evidence that Brigitte was engaged in terrorist activity in Australia. So the probative value of the evidence was no more than minimal. 133 I do not accept that his Honour was bound to regard the probative value of the evidence as minimal. It seems to me that it derived substantial probative force from its capacity to reveal that what the appellant was doing was not a series of innocent acts. 134 On appeal, two sources of unfair prejudice were identified. The first, which was not raised at trial, was that so great was the body of evidence about Brigitte and so prominent was the place that it took at the trial that the jury were likely to overvalue it and become distracted from the true issues. Of the twenty-eight witnesses called in the Crown case, fourteen gave evidence about Brigitte and twelve of them gave evidence only about the Brigitte connection. Those witnesses were called first. Correspondingly large proportions of counsel's addresses and the summing-up were devoted to the evidence of those witnesses. When the appellant gave evidence, thirty-eight of the one hundred and forty-three pages of the transcript of his evidence recorded questions about Brigitte. 135 The first witness called was Kwon, who gave evidence by videolink from the United States of America. His evidence took a day. In order to prove that Brigitte had had the relevant training, it was necessary to prove how Kwon had been trained. That evidence, it was submitted, would impermissibly connect the appellant with terrorist training when it was never the Crown case that he had been so trained. 136 It was submitted that the true issues were even more obfuscated by the Crown's evidence about Sajid, which did not explain who he was or how he was related to the issues in the case, what he was doing and whether he had anything to do with Lashkar-e-Taiba. 137 Unfair prejudice was said to flow from the evidence of the lie the appellant told when giving the false name Sam Praveen in order to get his hands on the mobile telephone. There was reference to well known cases dealing with the risk of a miscarriage of justice when lies are resorted to to corroborate other evidence. It was submitted that there was no connection between the mobile telephone and the offences. 138 It was submitted that the Crown "ensured that the spectre of Brigitte was omnipresent throughout the trial" and that it was "inconceivable that the jury did anything other than give significant attention and subsequently (sic) weight to the evidence relating to Brigitte, even though the relationship between Brigitte and the appellant was, even at its very best, a side issue". Reference was made to R v Yates [2002] NSWCCA 520 at [252] and Scott v R [1989] AC 1242 per Lord Griffiths at [1256]. 139 It seems to me that proof that the appellant did the acts on which the charges were based, resulting wholly or mainly from direct evidence, was always going to be achieved quickly and with a modest amount of evidence. So far as the surviving counts are concerned, it might have been expected that the Crown would have little difficulty in establishing that the appellant collected the maps of the electricity grid, sought information from Deltrex and possessed the document written in Urdu. So it turned out. The appellant admitted the collection, seeking the information and possessing the document. The substantially contested issues in the case were always going to be concerned with the appellant's knowledge and intention in doing those things. In that respect it was a circumstantial case and the Crown was obliged and, I think, entitled to point to every available relevant circumstance. In this respect it was necessarily an extensive case. 140 Before his Honour could properly have rejected the evidence under s137, it had to appear that there was a real risk of unfair prejudice, either because the jury would place undue emphasis on the evidence or use it in some irrational manner: Festa v The Queen (2001) 208 CLR 593 per McHugh JA at 609; R v Suteski [2002] NSWCCA 509; R v Yates; R v Lisoff [1999] NSWCCA 364; R v Serratore [1999] NSWCCA 377. 141 I do not think that if his Honour had been asked to consider these matters he could properly have concluded that there was a real risk that the jury would place too much emphasis on the evidence about Brigitte or that they would misuse it because they misunderstood it. No complaint is made about his Honour's directions about how the Crown relied on the evidence. There was no assertion that Brigitte was involved in terrorist activities in Australia. The only relevant part played by Sajid was as an agency of communication between the appellant and Brigitte, a fact that the jury could not have failed to understand. The appellant's lies were proved only to show his intention to conceal his actions and divert suspicion from himself, and in particular to conceal his communications with Brigitte. Although the body of evidence pointed to was large, it was in a practical sense the only evidence that went to the only contested issues, all of which required consideration one way or another of the appellant's state of mind. 142 In my opinion the criticism of the sheer size of the body of circumstantial evidence is unjustified, as is the suggestion that some risk of unfair prejudice flowed from the amount of evidence adduced or from the order in which witnesses were called. There is no cause for any suggestion that the Crown conducted its case in a manner intended or calculated to attract unfair prejudice. 143 There is a second argument about unfair prejudice which, unlike the first, was dealt with at trial. Unfair prejudice is said to have resulted from publicity about Brigitte in the news media and the Parliament prior to the appellant's trial. The trial began on 19 April 2006, two and one-half years after Brigitte's arrest and deportation. The appellant tendered at trial a document collating and summarising no fewer than one thousand five hundred and seventy-one published references to Brigitte. They included newspaper articles published in Sydney and in interstate capital and regional cities as well as radio news broadcasts, including national broadcasts on the Australian Broadcasting Commission networks. The first publication was made on 27 October 2003 and the last on 14 January 2006. Some one thousand two hundred and forty of them happened within a year of Brigitte's arrest and deportation and the remainder were spread over the next one and one-half years. The same material was tendered on appeal. It is impossible to deal with much of the detail, but it may be said that Brigitte was reported to have been suspected of wishing to blow up the Lucas Heights atomic reactor and the Rugby World Cup final. There were articles about uranium mines and places where nuclear ships had docked. There was what has been described as a list of completely speculative propositions, including an assertion that Brigitte was said to have been involved in attempts to kill some unidentified Taliban leader. Prominent were repeated references to the belief that Brigitte was planning to blow something up. The Crown was not asserting any such things about Brigitte, of course, and the submission at trial and in this Court was that the material would have affected the minds of jurors and was of such a sensational nature as to divert them from their task of judging the issues on the evidence put before them at trial. 144 His Honour said this - The arguments advanced by Mr Boulten SC on the s 137 point focussed on a very considerable body of media material collected by the defence team to demonstrate the excessive publicity generated by the presence of Willie Brigitte in Australia. It is essentially because of this material that Mr Boulten suggested the jury will "over estimate" and "over value" any evidence that mentions the name Willie Brigitte. The Crown responded to this argument by suggesting that any possible danger of misuse by the jury of the subject body of evidence could be adequately eradicated by appropriate directions from the court.

The identification of Brigitte 155 There was abundant evidence that the appellant had associated with Brigitte. There was unchallengeable evidence that a man calling himself Salahudin had undergone terrorist training in Pakistan. The link between those bodies of evidence was Kwon's identification of Brigitte's photograph as of Salahudin. Kwon purported to identify such a photograph on two occasions and the Crown tendered evidence of them both. It was submitted at trial that the probative value of the evidence was outweighed by the danger of unfair prejudice: Evidence Act s137. It was also submitted, relying on s138 of the Act, that the evidence had been obtained improperly or in contravention of an Australian law or in consequence thereof, and the desirability of admitting it did not outweigh the undesirability of admitting evidence obtained in the way it had been obtained. His Honour held that the evidence had not been obtained improperly or in contravention of any Australian law and that its probative value was not outweighed by the danger of unfair prejudice to the appellant. 156 Kwon was a citizen of the United States of America who, in 2001 at the suggestion of his teachers, travelled to Pakistan in the hope of gaining entry to a Lashkar-e-Taiba training camp. Eventually he arrived at a camp called Camp Masada and entered training there. There were to be three phases of training. The first and the first part of the second would be held at that camp. The second part of the second phase would be held at a different camp at higher altitude. Kwon completed the first phase and entered the second. A few days into that phase, a man called Salahudin arrived and joined the group as a trainee. There were at that stage about seven trainees. They did all their training together. They were accommodated in the same place. They slept in the same dormitory, ate together and prayed together. They had discussions together. Kwon, Salahudin and the others completed the first part of the second phase and moved to the higher camp. The course there lasted for between twenty and twenty-five days. As before, everything was done together and all the participants lived closely together. Kwon had a lot of individual conversations with Salahudin, who told him something of his background in France and his history as a teacher. Neither went on to the third phase of the program but both travelled in company to a town called Muridke, where they waited some weeks for further instructions. From there they went in different directions and Kwon has not seen Salahudin since those days. 157 Kwon spent some time in South Korea, where FBI agents got in touch with him. Eventually he was returned to the Unites States of America and faced, first, passport violation charges and then much more serious charges, alleging that he had conspired to provide support to al-Qaeda and the Taliban for the purpose of fighting against United States troops in Afghanistan and an intention to take up arms against his own country's troops. At least one of the charges attracted a maximum sentence of imprisonment for life. He was also charged with a number of firearms offences. He entered a plea bargain with United States prosecutors with a number of results and consequences. The resulting sentence was imprisonment for eleven and one-half years, but with the prospect of bringing what was called a Rule 35 motion to reduce his sentence. The bones of the arrangement appear to be these. In acknowledgment of the sentence I have mentioned Kwon was to give assistance to the United States investigating authorities, and that required him to do a number of things, including giving evidence in prosecutions in the United States and elsewhere. If he did give truthful evidence as promised, and if he otherwise fulfilled the terms of the arrangement, he would have the opportunity to come back before the sentencing judge under the arrangement I have mentioned and ask for a reduction in sentence. The plan was put into action. Kwon gave evidence in a number of matters, two prosecutions in the United States and one in the United Kingdom. He was taken back before the sentencing judge under Rule 35 and his sentence was reduced. By the time he came to give evidence in the appellant's case he had already reached the end of the custodial portion of his reduced sentence and was serving a period of three years on probation. 158 On 26 November 2003, while he was still serving the custodial part of his sentence, Kwon found himself in a gaol in Alexandria, Virginia. On 26 November 2003 he was taken to the nearby police station and placed in an interview room. There he received a visit from two FBI agents, Mr Mamula and Mr Ammerman. His Honour heard evidence from Kwon, Mamula, Ammerman and an ASIO officer who was referred to as AO1. His Honour's findings may be summarised thus. 159 On 5 November 2003 the ASIO officer gave an officer of the FBI a photograph of Brigitte, as part of a briefing to try to find out what the FBI knew about Lashkar-e-Taiba or Brigitte. At that time ASIO suspected that Brigitte had been involved with Lashkar-e-Taiba. On 20 November 2003 an ASIO agent gave an FBI agent a photograph of Brigitte, a photograph of the accused and one photograph of another person. The photographs were handed over with the intention of gaining access to Kwon and another man in order to interview them. The ASIO officer told his correspondent that he would if possible ask Kwon and the other man if he could identify anybody in the photographs. He took the photographs to the meeting in the interests of accurate intelligence and not to preserve any subsequent police activity. He did not tell the FBI agent not to show the photographs to anybody before ASIO came to the interview. On 26 November 2003 Ammerman was in the interview room with Kwon and his solicitor before anyone from ASIO spoke to him. He showed Kwon four photographs, one of Brigitte, two of the appellant and one of the appellant's brother. Kwon recognised the person in the first photograph as the man Salahudin, someone he knew from his attendance at the training camp. Agent Ammerman left the interview room and met the ASIO officer. He brought him back to the interview room and an interview took place. The ASIO officer showed Kwon a folder containing twelve photographs, some described as passport-type and others of people taken in public places. Some were in colour and some in black and white. Each photograph showed one man. One of the colour photographs was of Brigitte. There were two photographs of the appellant. He showed Kwon the photographs one at a time and invited him to say whether he could recognise any of the people shown in them. The only person Kwon recognised was the person he named as Salahudin. As he did so, Kwon told the ASIO officer that that was the French person he had told him about. 160 There existed at the time a document called Legal Handbook for Special Agents, issued to FBI agents, which contained guidelines about the procedures that should be adopted when showing photographs of suspects to witnesses. His Honour accepted the evidence of agents Mamula and Ammerman to the effect that when they showed the photographs to Kwon they were not investigating the possible involvement of a person in a crime. That, his Honour was satisfied, was a precondition to the application of the guidelines. His Honour was satisfied, on the evidence of Agent Ammerman, that what they were doing was more in the context of assistance to a friendly foreign nation. His Honour was satisfied that the American agency was making Kwon available to ASIO so that it could ask him whether he could identify any person he had trained with in 2001 in Pakistan. Although the approach was unusual, showing photographs to Kwon before the arrival of the ASIO officer, his Honour accepted that what Ammerman was doing was essentially assisting the Australian government in an intelligence gathering operation. Although the information obtained might have been of some interest to the FBI itself, that was not the purpose of the operation. As the agents were not investigating the possible involvement of any persons in the photograph in a crime, the guidelines did not apply. The opinion of either of the agents whether they did apply (one thought they did, the other not) was irrelevant. 161 Mr Boulten submitted to his Honour that if the evidence was not obtained in contravention of FBI guidelines or of any Australian law, it was improperly obtained, so s138 applied. No authority could be cited supporting that application. His Honour held that there was no impropriety. His Honour referred to the judgments of Adams J in Director of Public Prosecutions v Coe [2003] NSWSC 363 and of Howie J in Regina v Richard Bruce Cornwell, 20 February 2003, unreported. 162 Having found that there was no impropriety and no illegality, his Honour, for more abundant caution, went on to make the kinds of findings s138 would have required. He considered the probative value of the evidence reasonably high and the evidence important to the Crown case, being the only evidence that directly placed Brigitte in a Lashkar-e-Taiba training camp. The offences charged were very serious and carried significant penalties. If the procedures adopted breached FBI guidelines or were otherwise improper, the breaches or improprieties were not deliberate or reckless, but done as part of the process of sharing intelligence with a friendly foreign country. Nothing happened in either the first interview with the FBI agents or with the subsequent interview with the ASIO officer that suggested to Kwon that he should or was bound to identify any particular person to be shown to him. The actions of Agent Ammerman were not designed to be unfair. On the contrary, his Honour considered his procedure appropriate. 163 His Honour went on to consider whether the evidence should be excluded under s137. The Evidence Act 1995 has nothing to say about evidence of identification of any person other than a defendant. Mr Boulten relied on the Common Law position as set forth in a passage of the judgment of Gibbs CJ in Alexander v The Queen (1979-1980) 145 CLR 395 at 400, dealing with unfairness in the process of identification of an accused person by photograph shown by the police. His Honour observed, however, that there were important distinctions to be made. First, Gibbs CJ was, strictly speaking, dealing with identification, not recognition, evidence, that is evidence about a person not previously known to the witness. Secondly, his Honour was dealing with the identification of a person accused of a crime, rather than, as in the present case, with the recognition of a third party. Thirdly, his Honour did not deny the need to weigh and compare probative value and the risk of unfair prejudice. 164 Whealy J proceeded to make that comparison. His Honour rehearsed the long period of time, somewhere between three and four weeks, during which Kwon and Salahudin had been in each other's presence, training together, sleeping in the same dormitory, participating in daily religious sessions, and the like. After their training was over, they travelled together to Lahore and then to the place where they waited. They travelled in the same vehicle and stayed in the same premises. They stayed there for about three weeks. They spoke to one another during travel and during their stay as they waited. His Honour observed that this was no idle acquaintanceship but one in which a reasonably strong bond would have been forged. There was the nature of the training itself, including its ideological and religious basis, which would have cemented the relationship. His Honour considered it significant that Kwon had immediately identified, that is, recognised, the photograph of the man he knew as Salahudin. 165 His Honour acknowledged the attack Mr Boulten had made upon Kwon's credibility. He had demonstrated that in cross-examination Kwon had not always told the whole truth when giving evidence. His Honour considered that such matters could not lead to the exclusion of the evidence but were for the jury to consider. His Honour noted that there was no indication to Kwon that he had to identify the photograph of Brigitte. His Honour rejected a submission that there was any significance in the fact that the FBI agents had not made notes of the conference proceedings. His Honour rejected the submission that the proceedings in which the ASIO officer showed Kwon twelve photographs was "a complete sham". 166 His Honour concluded that evidence of both identifications was relevant and of "quite high probative value". His Honour did not consider that the unusual features he had identified affected the value of the evidence of recognition by Kwon of Salahudin so as to reduce its probative value significantly. His Honour considered that there was no likelihood that the jury might misuse the evidence, given suitable directions. His Honour expressed himself satisfied that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the appellant. 167 In this Court Mr Boulten pointed to some of the requirements of ss3ZO and 3ZP Crimes Act 1914 (Commonwealth), which prescribe procedures that police constables must follow. If constables show photographs to a witness to obtain evidence of identification of a suspect they must show photographs of at least nine different persons. Each photograph not of the suspect must be of a person who resembles the suspect in age and general appearance and lacks features markedly different from those described by the witness before looking at the photographs. The photographs must not appear to be of persons in police custody. Police constables should not suggest to a witness that a particular photograph is of the suspect. The witness must be told that there may be no photograph of the suspect among those being shown. Constables must keep records identifying each photograph shown to the witness. 168 Mr Boulten pointed also to the FBI guidelines, which provide that except where it is impracticable a suspect's photograph shown should be in a group of at least five other photographs. There should be a reasonable attempt in using photographs of persons other than the suspect to see that they resemble the suspect. The prints of the several photographs should not be dissimilar. Photographs should not indicate that persons shown in them are guilty of criminal misconduct. If "mug shots" are the only photographs available, number boards should be masked. 169 Of course, none of these requirements applied to the procedure in which Kwon identified a photograph of the man Salahudin in the presence of the ASIO agent. He was not a constable. The person he was trying to identify was not a suspect. The FBI guidelines did not apply either because, as his Honour concluded, the agents were not trying to identify a suspect. They were not conducting a criminal investigation at all, but assisting a friendly foreign nation. Even so, Mr Boulten called these provisions in aid as indicating the sorts of measures that should be employed to ensure that any important identification by photograph is carried out in a way that avoids the difficulties inherent in such a process, so as to tend to produce a reliable result. Ultimately the submission was that the probative value of the evidence of identification of the photograph of Brigitte was unreliable because of the circumstances in which it had been made, first in the presence of the two FBI agents and then in the presence of them and the ASIO agent. 170 Mr Boulten cited a number of United States cases on the guidelines and drew attention to the small number of photographs shown by the FBI agents - four photographs of three people. Mr Boulten referred to R v Dwyer [1925] 2 KB 799 and to the need for caution where the evidence is that only one photograph was shown. It was submitted that his Honour failed to consider the difficulties inherent in the procedures employed by the FBI agents, which were apt to produce unreliable results because Kwon, who was prepared to tell lies when it suited him, was placed in a position in which he was likely to tell a lie. He was obliged to give assistance to the FBI. The consequences of not doing so would be grave. Kwon was likely to believe that at least one of the three men shown in the photographs was a suspect and that the agents wanted the assistance of evidence against that man. He was therefore likely to say what he thought the agents might like to hear. 171 In deciding whether to include the evidence, his Honour said this - Mr Boulten SC relied in particular on a passage in the judgment of Gibbs CJ in Alexander's case (1981) 145 CLR 395 at 400. I have set this out in my earlier judgment and there is no need to repeat it here. But, in my view, there are a number of important distinctions to be made. First, Gibbs CJ was, strictly speaking, dealing with identification rather than recognition of a person known to the witness. Secondly, he was dealing with the identification of a person accused of committing a crime rather than, as here, with the recognition of a third party. Thirdly, Gibbs CJ did not deny the existence of and the need to exercise a weighing exercise of probative value on the one hand, and the risk of unfair prejudice on the other. This exercise requires an evaluation of the circumstances. In those circumstances, I turn to consider issues related to the probative value of both "identifications" and considerations as to the risk of unfair prejudice to the accused in the trial. Although the question of the probative value of evidence is generally a matter for the jury, the present exercise requires the Court to determine whether the probative value of the evidence is or is not outweighed by the danger of unfair prejudice to the defendant. At the outset, it is important, indeed critical, to note that there was a relatively extensive relationship between the man Kwon and Salahudin. Kwon said he first met Salahudin when the latter joined the early stages of phase 2 training at the LeT camp (T 965 line 35 and following). Salahudin remained in the group for the balance of the training period. This would indicate that the two men trained together for a period of somewhere between three and four weeks. During that period, Kwon trained with Salahudin every day (T 965 lines 50-55); he spoke to him on a daily basis (T 966 line 8) and slept in the same dormitory each night (T 965 line 57). In addition, Mr Kwon said he observed Salahudin participating in daily religious sessions (T 966 line 20 and following). When their training was completed, the group (including Kwon and Salahudin) left the training camp. They travelled back to the LeT office in Lahore and then went on to Muridke. During the course of these travels, Kwon travelled in the same vehicle as Salahudin and stayed in the same premises in Muridke (T 967 line 45). They stayed at these premises for a period of approximately three weeks. They conserved in the course of travelling and during their stay at Muridke. It seems to me that it is inescapable to conclude other than that Kwon and Salahudin were in close to proximity to one another for a reasonable extensive period of time and in circumstances where Kwon was likely to have become quite familiar with Salahudibn both as to his appearance and general characteristics. This was no idle acquaintanceship but one in which a reasonably strong bond would have been forged between the two men. The very nature of the training itself, including its ideological and religious basis, would have cemented the relationship. The second matter that I consider of significance is that Kwon identified Salahudin immediately he was shown the four photographs by the FBI Agents. Similarly, when he was shown 12 photographs by the ASIO officer, he had not the slightest difficulty in making the recognition of the man he had met at the training camp. He recognised him "immediately" (T971 line 25). By contract, he did not recognise any of the others. I am conscious of the fact that Mr Boulten SC has made a significant attack upon the credibility and reliability of the witness Kwon. He described these features as "worrying". The particular matters stressed were - (a) The witness was not always truthful. (b) The witness was often quite deceptive and admittedly so. (c) Overtime, he had provided "incremental admissions" to the FBI. He "bluffed it out" for a period of time by denying things and inventing situations, which were to his knowledge untrue. He would only admit a fact if he thought that FBI knew about it. This manner of providing information continued will into his relationship with the FBI. (d) The witness was shown photos by the FBI from time to time. He was prepared to do what the FBI told him to do, including telling lies in the phone in an endeavour to "trap" his co-defendants. (e) The witness had at all times up to and including late 2003 a powerful motive to tell the FBI what they wanted to hear - this connotes "an extraordinary degree of suggestibility" to tell the FBI what they want to hear. Mr Boulten SC connects these assertions, a number of which are undoubtedly correct, to make a forceful submission that the identification of Salahudin in the photos shown by the FBI agents was of no value whatsoever. Showing one photo to Kwon was very suggestive of the result the agents wanted to receive especially where the relationship between the witness and the FBI was of "a special kind". In other words, Mr Boulten submitted that the witness was "unduly responsive to signals". My view is that, while these matters are obviously of great significance in relation to the issue of credibility and reliability of the witness, they ought not and cannot lead to the exclusion of the evidence. I have examined this aspect of the matter in my previous decision and I remain of the view that merely because a witness appears to be lacking in credibility or unreliable, even to a large extent, is no basis for the trial judge to exclude the evidence. Issues such as the credibility and reliability of a witness are, subject to appropriate directions being given, matters entirely for the jury. For this reason essentially, I am unable to accept Mr Boulten's submissions on this point. 172 On appeal, Mr Boulten attacked his Honour's conclusion that the question whether Kwon was to be believed was one exclusively for the jury and incapable to leading to the rejection of the evidence. 173 In my opinion the attack fails. The submissions at trial and in this Court attempted to run together, as though they could potentiate one another in the mind of the trial judge, two disparate criticisms of the evidence. The first related to the risk that an honest witness who identifies someone may be mistaken. It is in recognition of that risk that the courts urge caution in assessing identification evidence. That has nothing to do with the second criticism, namely the risk that a witness may deliberately lie because of some perceived obligation to assist the authorities. 174 The manner in which photographs are put before an honest witness is important because of the need to prevent honest mistakes. So guidelines and, sometimes, statutes deal with the quality and quantity of photographs to be shown and the circumstances in which they are shown. So there is a general requirement that witnesses be told not to make assumptions about the photographs. So a process may properly be criticised, as it was here, by reference to the small number of photographs shown and to the fact that Kwon was not told that they might not include anyone he might recognise. The process was capable of criticism, too, because no attempt appears to be made to have Kwon record a description of Salahudin before he was shown any photograph. But it was not open to extend that legitimate criticism by eliding questions about Kwon's credibility. The attempt to do so was made in the face of the Court's judgment in R v Shamouil [2006] NSWCCA 112, a fact Mr Boulten acknowledged. In that case Spigelman CJ reviewed the pre-Evidence Act and post-Evidence Act cases on the question whether assessment of the probative value of evidence required consideration of its reliability. His Honour concluded that the test for rationality was concerned with what it was open for the Tribunal of fact to conclude, not with what it was likely to conclude: judgment at [48] - [68]. The other members of the Court agreed. 175 Mr Boulten made two submissions about R v Shamouil. First, it was submitted that this was one of the exceptional cases spoken of in which it was simply not open to the jury to give weight to the evidence: see the judgment of Spigelman CJ at [56], referring to the judgment of Simpson J in R v Cook [2004] NSWCCA 52 at [43]. 176 In my opinion this is not a case in which his Honour was bound to weigh the credit of Kwon, much less to conclude that it was incapable of belief. The questions of the credit of Kwon and the dangers associated with identification by photograph were not "inextricably entwined", to use Simpson J's words. His Honour would have usurped the jury's function if he had assessed the credibility of Kwon. 177 Mr Boulten's alternative submission was that this Court should not follow R v Shamouil because it was wrong. No authority was put before the Court that was not considered in Shamouil itself. In my respectful opinion the judgment was right. This Court should follow it. 178 In assessing the probative value of the evidence his Honour said this - The evidence of Mr Kwon in relation to his recognition of the man Salahudin both to the FBI agents and to the ASIO officer appear to me to possess a high degree of probative value. This is because of the relationship between the two men and the fact that the witness purported to recognise a person he had trained with over a reasonably substantial period of time. I do not accept that the matters that transpired between Agent Ammerman and Kwon in the pre-interview indicate that any suggestion was made to Kwon that he had to identify the photo of Willie Brigitte. While it is true that no record was kept of what was said at this meeting either by Ammerman or by Kwon, I consider that I am entitled to infer that he was simply asked whether he recognised any of the people in the four photos he was shown. While it is true also that Kwon himself has no recollection of having seen these photographs, he readily accepted that he may well have seen them. Moreover, his recall of recognising Salahudin's photograph when it was shown to him by the ASIO officer is at least consistent with the earlier recognition, even though he does not recall it. In this context, I do not accept Mr Boulten's further submission that what happened in the interview room when the ASIO officer produced the 12 photographs was "a complete sham". Since the earlier process during the pre-interview required the witness to recognise a person he knew reasonably well, the subsequent recognition falls into the same category. I accept that it was hardly a surprising result and this may be pointed out to the jury in relation to any directions that need to be given. It is of course possible that Kwon was mistaken when he recognised the person in the photo as Salahudin. It is possible there was some degree of displacement although I do not consider the evidence placed this possibility particularly high. If one acts on the assumption that Kwon was acting truthfully and in accordance with his own memory then the sting in the submission is much less. On the other hand, if the jury were to take the view that the witness is not truthful and that he was acting at the suggestion of the FBI agents, they would give little weight to his purported of recognition. Appropriate directions, in my view, will enable the jury to neither over estimate the identification nor under estimate the matters, which Mr Boulten says, weaken the probative of the evidence. It must be stressed that recognition of a person known to a witness does not fall into an absolute category. The extent of the relationship and the depth of the knowledge of a person will vary from one relationship to another. In that context, I accept that the directions may be given to a jury, which, in an appropriate case, will highlight to the jury that there are dangers even where the situation is one of recognition rather than identification of a stranger. (See R v Bentley (1991) Crim LR 620 per Lord Lane CJ at 621). But the distinction between recognition and identification is one that has a particular relevance in the factual situation arising in the present matter. I consider that the evidence of both identifications plainly is relevant and of quite high probative value. Notwithstanding the unusual features that have been revealed by the evidence, I do not think that these affect the value of the evidence of recognition by Kwon of Salahudin so as to reduce significantly that probative value. Whether the jury accept the evidence and regard it as either credible or reliable is another matter and not one upon which I can or should base an order for exclusion. The evidence is plainly closely connected with one of the principal issues in the proceedings although it is not the only evidence upon which the Crown relies. It can properly be taken into account in the context of the evidence as a whole ( R v Tugaga (1994) 74 A Crim R 190 at 196). Moreover, I do not think that there is any likelihood of the jury misusing the evidence and, subject to suitable directions, any risk that the jury might over value the identification or under estimate the capacity for mistake can be effectively dealt with. I am satisfied that the probative value of the evidence is not outweighed by the danger of unfair prejudice to the defendant.

[2006] HCA 39

[2005] WASCA 4

(1999) 198 CLR 111

(1990) 20 NSWLR 368

(2000) 49 NSWLR 653

(1986) 161 CLR 88

(1990) 169 CLR 525

(1995) 183 CLR 121

(1998) 165 CLR 611

(1992) 176 CLR 1

(1999) 198 CLR 334

(1992) 177 CLR 292

(1997) 42 NSWLR 70

(2004) 223 CLR 575

(1983) 152 CLR 570

(2001) 208 CLR 593

(1998) 195 CLR 547

(1991) 172 CLR 84

(1987) 164 CLR 15

(1987) 163 CLR 447

(2004) 78 ALJR 616

(2005) 79 ALJR 1048

(1989) 167 CLR 259

(1998) 193 CLR 173

(2005) 64 NSWLR 406

(1979) 180 CLR 322

(1992) 25 NSWLR 371

(2005) 188 FLR 336

(1970) 123 CLR 361

(1995) 184 CLR 19

(2001) 206 CLR 267

(1992) 173 CLR 592

(1973) 129 CLR 231

(1982) 158 CLR 327

(2007) 81 ALJR 1414

(1988) 164 CLR 465

(2001) 51 NSWLR 589

(1979) 143 CLR 459

(1981) 145 CLR 395

(1933) 49 CLR 429

[2001] NSWCCA 211

[1998] HCA 9

[2005] NSWCA 345

[2004] NSWCCA 465

[2002] NSWCCA 479

[1999] NSWCCA 364

[2004] NSWCCA 97

[1999] NSWCCA 377

[2006] NSWCCA 112

[2002] NSWCCA 509

[2001] NSWCCA 171

[2007] HCA 33

[2004] HCA 46

[2004] NSWCCA 52

[2006] NSWSC 371

[2003] NSWCCA 207

[2001] HCA 21