R v Azari

Supreme Court of NSW|2018-10-07|Before: Adams J

Background

On 10 April 2017, the accused, Omarjan Azari ("Azari"), pleaded not guilty before me to, inter alia, an offence brought under s 101.6(1) of the Schedule to the Criminal Code Act 2005 (Cth) ("the Criminal Code") that: "On 15 September 2014, at Parramatta, in the State of New South Wales, did an act in preparation for, or planning, a terrorist act or acts, namely did participate in a telephone conversation with another person, namely Mohammad Ali Baryalei or another unknown person, in preparation for, or planning, a terrorist act or acts."
A number of pre-trial legal issues were ventilated prior to the jury being empanelled. Many of the pre-trial issues were resolved between the parties which reduced the number of objections I was required to rule on. One category of evidence which was objected to concerned all recorded intercepted telephone conversations between persons other than the accused, conducted in his absence. I was not required to rule on that objection as the Crown did not ultimately press for these recordings to be tendered at the trial.

The Crown case

The Crown case is that the accused and Mohammad Ali Baryalei ("Baryalei"), participated in a telephone conversation on 15 September 2017 ("the telephone conversation") during which they discussed a plan for a future terrorist act or acts to be committed in Australia; namely, the killing of a random member or members of the public. Baryalei was at that time a senior Australian figure in the terrorist organisation known as Islamic State and was in either Syria or Iraq.
It was anticipated that the central fact in issue at the trial will be whether the accused intended to do an act in preparation for, or planning, a terrorist act when he participated in the telephone call. That is, was he engaging in preparing for or planning to do a terrorist act or was he trying to put Baryalei off, only pretending to go along with him.
The Crown seeks to prove the accused's alleged intention by inviting the jury to draw inferences from the contents of the call itself together with other evidence. The other evidence includes intercepted telephone calls, surveillance device recordings, surveillance footage and other witnesses. The Crown alleges that the accused, and a number of persons with whom he associated, held radical, militant Salafi Islamist and anti-Western ideological beliefs and were supportive of Islamic State and other militant Islamist groups pursuing jihad by violent means in the name of Islam. These men had formed a group known as a "shura" which is an Arabic word for consultative council or consultation body. This Sydney based shura was led and guided by senior persons including Hamdi Alqudsi ("Alqudsi") and Baryalei.
The Crown case is that, as part of the shura, the accused and others engaged in conduct designed to promote and support the causes of their radical religious and ideological beliefs. There is evidence that members of the shura, including the accused, unsuccessfully attempted to travel to Syria to fight for either Islamic State or Jabhat Al-Nusra ("JN"). The shura encouraged and assisted others to do this as well. The jury will be aware that the accused has already pleaded guilty to attempting to make funds available to a terrorist organisation, namely Islamic State, and is awaiting sentence on that matter. Although there is evidence that the accused attempted to travel to Syria to fight in 2013 and had his passport cancelled on 9 August 2013, most of the relevant recorded calls and surveillance evidence of the accused and other members of the shura relate to the period from July to September 2014. As stated above, the relevant telephone conversation was on 15 September 2014 and the accused was arrested on 18 September 2014.
It is anticipated that the new witness, who has been given the pseudonym Ahmed Hussain, will give direct evidence as to the existence and nature of the shura, its members and its purpose and aims. This evidence will include evidence that the accused was a member of the shura, with Alqudsi as its leader (emir), and that the shura was in contact with Baryalei in Syria.

Evidence on the voir dire

On 3 October 2018, the Crown indicated that the main area of dispute had been narrowed down to argument about 144 third-party conversations in recorded telephone calls that occurred in 2013 and 2014. These conversations do not involve the accused nor make any mention of him. The Crown relied upon the assertions made in them as being in furtherance of the common purpose of the shura. Although many of the calls were between Alqudsi and Baryalei, not all of them were. They included a number of different parties in the 18 month period prior to the relevant telephone conversation. Neither the Crown nor the accused had addressed the admissibility of each of the calls separately. The voir dire was adjourned for, inter alia, further discussions between counsel and in order for written submissions and objections to be prepared in relation to each of the calls.
On 4 October 2018, written and oral submissions were made and further documents tendered. Mr Hughes tendered a statement of admissions under s 184 of the Evidence Act 1995 (NSW) and the Crown tendered a folder with the copies of Mr Hussain's statements as well as a copy of the transcripts of the disputed calls.
On 5 October 2018, the Crown filed further submissions in relation to the admissibility of the recorded third-party conversations and the accused filed submissions in reply with annexures from the notices of prosecution cases filed on 13 February 2017 and 21 August 2018. In its submissions, the Crown indicated that, having considered its position, it ultimately only pressed 14 of these calls.
On Monday, 8 October 2018, there was further argument about the remaining 14 calls and I made my rulings at that time.

The disputed calls

The 14 telephone calls pressed by the Crown fell into the following categories: 1. Three calls between Azari and Baryalei in 2013: calls 5, 15 and 39. 2. Six calls between the witness Ahmed Hussain and others: calls 9, 141, 147, 151, 202 and 236. 3. One call between Alqudsi and Milad Atai ("Atai") on 31 August 2014 from which it was to be inferred there was a meeting that day: call 201. 4. Two calls allegedly in the presence of the accused: Call 94, between Ali Al-Talebi ("Al-Talebi") and another discussing their faith in the presence of the accused; and call 36, where Alqudsi calls Tyler Casey (Abu Hassan) in the presence of Azari and others in circumstances where the call was on speaker phone. 5. A call between Baryalei and Azari's brother at 10:24 on 14 September where Baryalei is told that Azari is not home: call 66. 6. Two calls between Agim Kruezi ("Kruezi") and Al-Talebi: calls 111 and 112.
During legal argument on 8 October the accused withdrew his objections to the calls enumerated above at (2), (4) and (5) and it was determined that the consideration of the calls at (6) above should be deferred until after cross-examination of the witness, Ahmed Hussain.
Thus, the outstanding argument was as to calls 5, 15 and 39 and 201. These four calls are summarised in the Crown Case Statement as follows.
Call 5 took place on 25 June 2013 at about 9:07pm at which time Alqudsi telephoned Baryalei. Alqudsi advised him that four named persons would shortly be departing Australia to join up with Baryalei. They would do so by travelling to Hatay (a province in south-western Turkey adjoining the Syrian border). Alqudsi advised Baryalei that he was to be their commander upon their arrival. Baryalei advised that he had been "called up", allegedly to participate in hostilities in Syria, but would make arrangements to facilitate the arrival of the four persons.
Call 15 took place on 29 June 2013 at about 4:49pm. Baryalei telephoned Alqudsi. During that call, Alqudsi advised Baryalei that he had one person leaving that day, four leaving on Monday and three probably leaving the next day. One would be travelling via Singapore, whilst others would travel by another unspecified route. Alqudsi indicated that by the end of the following week there would be eight "brothers" who, on the Crown case, would be travelling to Syria to join Baryalei to fight. These eight persons allegedly included the accused and the witness Ahmed Hussain. Alqudsi indicated the plan was for them to meet in Istanbul before travelling to Hatay and then going onto Bab Al-Hawa to join the Night Arrows battalion. Alqudsi stated that he had had about 12 boys in his house the previous night, at which time he had explained to them that Baryalei was to be their commander when they arrived in Syria.
Call 39 involved Baryalei telephoning Alqudsi on 8 August 2013 at about 4.42pm. They had a conversation in English and Arabic. Baryalei used code words and referred to "The State" (Islamic State) and "The Front" (Jabhat Al-Nusra). He stated that he would shortly be taking the "pledge of allegiance" to Islamic State and that all of "the boys" would be joining him, allegedly in reference to Australian persons recently arrived. Alqudsi praised Baryalei's decision and wished him a place in paradise.
They further discussed the possibility of Baryalei sending a photograph (allegedly later found at one of Alqudsi's residences on 3 December 2013) of Baryalei and the "boys" dressed in black with their faces concealed posing in front of the Islamic State flag, but also discussed the need to be cautious if they were doing so to evade possible detection by "the unbelievers". They discussed how their priority must remain ensuring that the "door" (allegedly a reference to the means of entry by Australian citizens into Syria) remained open. Baryalei indicated that whilst he desired martyrdom, he did not want to do so until he had secured a means of entry for "the rest of the brothers… hundreds and thousands of them… to come over."
The two men then discussed two persons that wished to "come back." Baryalei indicated that he was unwilling to take any further risks assisting people in going back, rather than entering, as it was a dangerous activity where people were getting killed. They discussed the need to ensure that any future persons appreciated that they could not readily return and would not become scared. They further discussed the need for "the brothers" to stop sending photographs to their wives depicting themselves with their "tools", allegedly a reference to firearms, because "the dogs" were investigating Alqudsi about his "dealings with the brothers overseas." They agreed it was important that the only "boys" with whom Alqudsi dealt would be those who could be trusted.
They then discussed the possibility of Alqudsi joining them, and Alqudsi's plans for two further persons known to them to travel to join them. Alqudsi then indicated he would hold a consultation session with "the boys" soon with respect to "ongoing charity" (the collection of funds to be used to facilitate the travel of persons from Australia to Syria to join Baryalei as members of Islamic State). He then praised Baryalei as a good moral example and commander of Islam worthy of the Garden of Paradise.
Call 201 took place on 31 August 2014 at about 4:41pm. Alqudsi telephoned Atai using Al-Talebi's handset. A conversation in English and Arabic was recorded. The call allegedly occurred whilst Al-Talebi was travelling back from Wattamolla Beach in the direction of Revesby. Atai confirmed that he was still at work. Al-Talebi indicated he was "just at the brother's now". Atai passed on greetings to those persons. Al-Talebi then asked as an aside to a person present with him, allegedly Alqudsi, "[d]o you want to talk to him with?" Alqudsi then spoke using Al-Talebi's telephone handset, introducing himself as "Abu Ibrahim." He indicated that he had missed Atai and stated, "I swear all we need is you today, man. Allah has decreed, and whatever he wills he makes happen. Allah willing, Abu Ibrahim will explain to you what is going on, okay?"

Submissions on behalf of the Crown

With respect to calls 5, 15 and 39, the Crown submitted that the evidence of the third-party conversations was relevant and admissible as circumstantial evidence capable of proving, indirectly and together with other evidence, that the accused held the requisite intention when he made the telephone call.
The Crowns' primary position was that the third-party conversations do not infringe the rule against hearsay because they are not relied upon by the Crown to prove the facts asserted therein. The Crown relied upon the observations of Howie and Hall JJ (Macfarlan JA agreeing) in Wing Cheong Li v R (2010) 199 A Crim R 419; [2010] NSWCCA 40 ("Wing Cheong Li v R") and the decision of Tsang v R (2011) 35 VR 240; [2011] VSCA 336 ("Tsang v R") (at [35]-[38]), submitting that the statements of principle in those cases apply to the admissibility of the third-party conversations in the present case.
The third-party conversations were described as circumstantial evidence from which inferences could be drawn that: the accused was a part of the shura; who the members of the shura were; the religious and ideological beliefs held by the members of the shura; the activities/objectives being pursued by the shura; the fact that the accused, and other members of the shura, travelled/planned to travel to Syria to become foreign fighters for Islamic State or another militant Islamist group; the fact that the group was led or guided by Alqudsi; and the fact that group knew of, and was in contact with, Baryalei. The evidence was also said to corroborate the direct evidence of the witness Ahmed Hussain on the same issues. Other associated non-hearsay, circumstantial uses of the evidence were said be to establish matters such as voice identification or attribution; presence and identity of persons who are the subject of physical surveillance; and the timing and location of meetings of the shura.
The Crown submitted that evidence of the nature and extent of the accused's involvement with the shura is relevant to prove that, when the accused participated in the telephone conversation, he did so meaning to plan for, or prepare, the commission of a terrorist act or acts.
The Crown initially submitted that, to the extent that the conversations did involve hearsay, the evidence is nevertheless admissible as proof of the facts intended to be asserted by the makers of the previous representations as evidence of statements made in furtherance of a common purpose: s 87(1)(c) of the Evidence Act; Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22; Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39. It was also submitted that the calls were admissible as evidence of a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind (s 66A of the Evidence Act; R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA 494 at [72]). This submission in relation to s 66A was subsequently not pressed.
As for call 201, the Crown submitted that the call was not in for a hearsay purpose but rather as proof that Atai did not attend the meeting at Wattamolla and that "all we need is you" is a reference to him not being there.

Submissions on behalf of the Accused

It was submitted that there had been no change in the Crown case that would justify any change in its position as to the admissibility of a large number of these recordings. It was further submitted that the evidence was all impermissible hearsay lacking in probative value and ought to be excluded in light of the admissions made by the accused under s 184 of the Evidence Act.
It was submitted that most of the calls were irrelevant given the admissions to be made by the accused. Those admissions include 12 admitted facts concerning Baryalei and his relationship to the accused and members of the shura; the arrest and charges in relation to Kruezi and Alqudsi as well as two items seized from their homes under search warrant and items seized under search warrants executed at the homes of other persons said to be members of the shura. In addition, admissions have been made in relation to the travel movements of persons said to be travelling to Syria, a surveillance schedule and the "kunya" nicknames of relevant persons said to be members of the shura.

Consideration

Turning to the three calls 5, 15 and 39, the first question is whether they are relevant. Section 55(1) of the Evidence Act provides that evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
The central fact in issue at this trial is the accused's state of mind at the time of the telephone conversation on 15 September 2014. The relevance of the calls depends on whether the telephone intercept evidence between Baryalei and Alqudsi over a year before the 15 September 2014 telephone call has the capability rationally to affect the assessment of the probability that the accused intended to do an act planning or preparation of a terrorist act on 15 September 2014 during his telephone conversation with Baryalei.
There is no dispute in the trial, given the formal admissions, that Alqudsi was arranging for persons to go to Syria and that Baryalei was already there. A number of other telephone calls are to be admitted at the trial between Baryalei and the accused in which the fact that Baryalei and others were in Syria is confirmed. By the time of the calls between Baryalei and the accused, the accused is told that Islamic State does not want further persons travelling over there to fight and it would be better if they stayed in Australia.
It is an agreed fact that the accused tried to go to Syria to fight but that his passport was cancelled. It is also an agreed fact that a number of other members of the shura who were close friends with the accused either attempted to travel to Syria or did do so, including two of the accused's brothers.
There is evidence that it used to be Alqudsi who would liaise with Baryalei but after he was arrested and released on bail he was not permitted to make any international calls thus it was the accused who started making the telephone calls to Baryalei. Although the accused was part of a group of like-minded persons, he is to stand trial as a principal. It is not suggested that he was part of any joint criminal enterprise at the time that he made the telephone call nor are any principles of complicity relied upon in this matter by the Crown.
It is against this background that the relevance of the calls falls to be considered. There is no mention at all of the accused in the conversations. They took place up to 18 months before the relevant call.
The threshold for relevance is a low one. I have had regard to the accused's submission that the material is irrelevant given the admissions made. I am not satisfied that the admissions go quite as far as the facts that the Crown seeks to establish. I am thus satisfied that the calls are relevant, although their relevance is low.
The next question is whether the calls are inadmissible because they breach the hearsay rule. Section 59(1) of the Evidence Act provides that "evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation". Section 60(1) of the Evidence Act provides that the hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.
The Crown relied upon s 60(1) of the Evidence Act and submitted that it did not rely upon the calls for a hearsay purpose. Rather, the calls were relied upon as circumstantial evidence. In support of the Crown's position, it relied upon the authorities of Wing Cheong Li v R and Tsang v R.
In Wing Cheong Li v R, the Court of Criminal Appeal considered the admissibility of intercepted telephone conversations in a money laundering case. The appellant was found in possession of more than $2 million. The appellant contended that the money was his and that it was derived from a legitimate commercial transaction carried out in Venezuela. The Crown alleged that the money was part of the proceeds of an earlier drug importation conducted by a Columbian man and that the appellant had been recruited to facilitate the transfer of the drug proceeds out of the country. The Crown was permitted at trial to adduce evidence of intercepted telephone calls involving two other men, in which it was alleged that they were discussing the money that the appellant later came to possess. The appellant argued on appeal that the telephone calls were wrongly admitted as they were hearsay and therefore inadmissible. The appeal was unsuccessful. Howie and Hall JJ (with whom MacFarlan JA agreed) summarised the relevant principles at [35].
In Tsang v R, evidence of statements made by others was admitted for a non-hearsay purpose as circumstantial evidence. In that case, the accused was convicted of an offence of importing a commercial quantity of the border controlled drug MDMA. The Prosecution case included evidence of four lawfully intercepted telephone conversations between a co-accused (not jointly tried) and another man, during which it was alleged the two men spoke of the price of MDMA. The accused was not present during the conversations. The calls were admitted during the trial. On appeal, the Court of Appeal (Nettle, Neave JJA and Sifris AJA) held that the trial judge was correct in ruling that the various parts of the four telephone conversations were admissible as evidence of an agreement to traffic in drugs and the accused's knowing participation in that agreement. The Court identified three distinct bases upon which the evidence was admissible, stating at [35]-[38]: "There are three bases under which evidence of statements made by a third person co-accused in the absence of the accused may be admissible. First, the statements may be circumstantial evidence which, along with other evidence, is relevant to the Crown or defence case. The admissibility of such evidence does not depend on the existence of a common purpose between the accused and a party to the conversation, provided that it is relevant as part of the surrounding circumstances which tend to prove the accused person's guilt of the offence. Nor is it necessary for the statements to be made in furtherance of an agreement between the accused and others to commit an offence. Such statements are not admitted as an exception to the hearsay rule (that is, as evidence of the truth of an assertion made), but rather as circumstantial evidence from which an element or elements of the offence can be inferred. ... Secondly, such statements may be admitted as original evidence to support a Crown case that the accused entered into an agreement with others to do the unlawful act with which he or she is charged. Again such evidence is not admissible as an exception to the hearsay rule, but as original evidence. As is the case where no agreement to do an unlawful act is alleged, it is unnecessary to prove that the statements were made in furtherance of the conspiracy. Thirdly, such statements may be admitted under the co-conspirators' principle, which permits their admission as evidence of truth of the statements made in the absence of the accused, that is as an exception to the hearsay rule. In conspiracy cases, such evidence may be admitted to prove the accused person's participation in conspiracy to do an unlawful act."
The principles derived from these decisions do not the assist the Crown in the present matter. It was accepted by the Crown that the calls contained previous representations made by Alqudsi and Baryalei and that at the time those men made those assertions it could reasonably be supposed that they intended to assert the existence of the facts contained in those representations. Despite this, the Crown asserted that it did not rely upon those representations to establish the facts asserted therein and thus, it was submitted, the hearsay rule did not apply.
It is to be accepted that as a matter of general principle conversations between persons other that the accused in the absence of the accused in which the accused is not mentioned may in some cases be admissible for a non-hearsay purpose. The difficulty with the Crown's position in the present matter is that if the conversations are not in for hearsay purpose, it is difficult to see how they are relevant.
As the summaries of the relevant calls above show, the telephone calls covered a vast range of topics. Those topics included that Alqudsi advised Baryalei that he was to be their commander upon their arrival and that Alqudsi had explained this to the men travelling to Syria, that Baryalei would shortly be taking the "pledge of allegiance" to Islamic State, and that Alqudsi praised Baryalei's decision and wished him a place in paradise. There was a discussion about the possibility of Baryalei sending a photograph of Baryalei and the "boys" dressed in black with their faces concealed posing in front of the Islamic State flag, but the need to be cautious if doing so to evade possible detection by "the unbelievers". Baryalei discussed martyrdom and that he wanted "hundreds and thousands" of other persons to come over first. There was a reference to the "the dogs" investigating Alqudsi and Alqudsi praised Baryalei as a good moral example and commander of Islam worthy of the Garden of Paradise.
The inferences that the Crown sought to be drawn from these calls included the fact that the accused, and other members of the shura, planned to travel to Syria to become foreign fighters, the fact that the group was led by Alqudsi and the fact that the group knew of, and was in contact with, Baryalei. In order for the jury to draw these inferences from the relevant conversations between Baryalei and Alqudsi, it is not simply the fact that the words were spoken which is relevant but the proof of what was being asserted therein to show the actions and beliefs of the two men, and indirectly those of the accused as a member of the shura. The relevant inferences could not be drawn unless this was the case. I am thus satisfied that the calls are either inadmissible as hearsay evidence or, alternatively irrelevant if not in for a hearsay purpose.
The alternate argument relied upon by the Crown was that, even if the telephone calls were inadmissible by operation of the hearsay rule, they were otherwise admissible under s 87(1)(c) of the Evidence Act. Section 81 of the Evidence Act provides that the hearsay rule does not apply to admissions. Section 87(1)(c) provides that: "For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that: …. (c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party."
It was initially submitted on behalf of the Crown that the reference to "common purpose" in s 87(1)(c) is not restricted to the common purpose the subject of the proceedings. The parties were subsequently provided with a copy of the decision of Simpson AJA (with whom Johnson and Harrison JJ agreed) in Decision Restricted [2018] NSWCCA 127 in which it was held that s 87(1)(c) does not permit the admission of evidence of a representation made in furtherance of a common purpose other than the common purpose the subject of the proceedings. After referring to a number of authorities Simpson AJA observed at [32]: "In my opinion it is clear from the terms of s 87(1)(c) that evidence of a representation made by a person who shares a common purpose with the party to the litigation is confined to representations made 'in furtherance of' the common purpose alleged."
Her Honour went on at [33] to observe that: "Even if the statutory construction I favour is not correct, it is difficult to see how a representation made by a person in furtherance of a common purpose extraneous to the proceedings could pass the relevance test: Evidence Act s 56(2)."
It was conceded by the Crown that, given that decision, the reliance upon s 87(1)(c) could not be sustained and it was withdrawn.
It was for these reasons that I ruled that calls 5, 15 and 39 were inadmissible
The remaining call was call 201 - a telephone call between Alqudsi and Atai on 31 October 2014 from which it was to be inferred there was a meeting that day that Atai did not attend. The accused is not a party to the call nor is he mentioned in it. Alqudsi is with another person when he speaks to Atai. This fact is circumstantial evidence and thus relevant and admissible but I am not satisfied that the contents of the call itself are relevant to the extent that they are capable of rationally affecting (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. The contents were vague and could go no further than the fact that a call was made in circumstances where Alqudsi and Atai were clearly not together at the time. It was for this reason that I permitted the fact of the call, the subscribers and the participants in the call to be admitted but not the contents of the telephone call itself.

ORDERS

In consideration of the above, I make the following order: 1. The telephone intercept evidence comprised of calls 5, 15, 39 and 201 are inadmissible.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 November 2018

Criminal Code Act 2005(Cth)

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