R v Khayat [2019] NSWSC 1316 | Case summary

R v Khayat [2019] NSWSC 1316 | Case summary | Zoe

[3]

Part 1C of the Crimes Act

Absent an express statutory authority to detain a person, once a person is charged it is necessary to bring that person before a judicial officer to determine whether that person ought be released on bail. Part 1C of the Crimes Act allows for the detention of persons arrested for terrorism offences for an "investigation period" before they are charged and brought before a judicial officer.
Section 23DB relevantly provides: 23DB Period of investigation if arrested for a terrorism offence (1) If a person is arrested for a terrorism offence, the following provisions apply. (2) The person may, while arrested for the terrorism offence, be detained for the purpose of investigating either or both of the following: (a) whether the person committed the offence; (b) whether the person committed another Commonwealth offence that an investigating official reasonably suspects that the person has committed. (3) Subsection (2) ceases to apply at the end of the investigation period, but that cessation does not affect any other power to detain the person. (4) If the person is not released within the investigation period, the person must be brought before a judicial officer within the investigation period or, if it is not practicable to do so within the investigation period, as soon as practicable after the end of the investigation period. (5) For the purposes of this section, but subject to subsections (7) and (9), the investigation period begins when the person is arrested, and ends at a later time that is reasonable, having regard to all the circumstances, but does not extend beyond: (a) if the person is or appears to be under 18, an Aboriginal person or a Torres Strait Islander - 2 hours; or (b) in any other case - 4 hours; after the arrest, unless the period is extended under section 23DF. (6) In ascertaining any period of time for the purposes of this section, regard shall be had to the number and complexity of matters being investigated. … (9) In ascertaining any period of time for the purposes of subsection (5) or (7), disregard any reasonable time during which the questioning of the person is suspended, or delayed, for one or more of the following reasons: (a) to allow the person to be conveyed from the place at which the person is arrested to the nearest premises at which the investigating official has access to facilities for complying with this Part; (b) to allow the person, or someone else on the person's behalf, to communicate with a legal practitioner, friend, relative, parent, guardian, interpreter or other person as provided by this Part; (c) to allow such a legal practitioner, friend, relative, parent, guardian, interpreter or other person to arrive at the place where the questioning is to take place; (d) to allow the person to receive medical attention; (e) because of the person's intoxication; (f) to allow for an identification parade to be arranged and conducted; (g) to allow the making of an application under section 3ZQB or the carrying out of a prescribed procedure within the meaning of Division 4A of Part IAA; (h) to allow the making and disposing of an application under section 23DC, 23DE, 23WU or 23XB; (i) to allow a constable to inform the person of matters specified in section 23WJ; (j) to allow the person to rest or recuperate; (k) to allow a forensic procedure to be carried out on the person by order of a magistrate under Division 5 of Part ID; (l) because section 23XGD applies and the time is to be disregarded in working out a period of time for the purposes of that section; (m) subject to subsection (11), because the time is within a period specified under section 23DD, so long as the suspension or delay in the questioning of the person is reasonable. (10) To avoid doubt: (a) subsection (9) does not prevent the person being questioned during a time covered by a paragraph of subsection (9), but if the person is questioned during such a time, the time is not to be disregarded; and (b) a period specified under section 23DD is not extended by any time covered by a paragraph of subsection (9). Limit on time that may be disregarded under paragraph (9)(m) (11) No more than 7 days may be disregarded under paragraph (9)(m) in relation to an arrest. … Evidentiary provision (12) In any proceedings, the burden lies on the prosecution to prove that: (a) the person was brought before a judicial officer as soon as practicable; or (b) any particular time was covered by a provision of subsection (9).
Section 23DE provides that, before the end of an investigation period, an "investigating official" may apply in writing to a magistrate for an extension of the investigation period. Section 23DE also, relevantly, provides for statements which must be included in any such application. Such statements include the reasons why the investigating official believes the investigation period should be extended (s 23DE(3)(g)) and the period by which the investigating official believes the period should be extended (s 23DE(3)(h)).
Section 23DF relevantly provides: 23DF Magistrate may extend investigation period (1) This section applies if: (a) a person is arrested for a terrorism offence; and (b) an application has been made under subsection 23DE(1) to a magistrate in respect of the person. Extension of investigation period (2) Subject to subsection (3), the magistrate may extend the investigation period, by signed written instrument, if satisfied that: (a) the offence is a terrorism offence; and (b) further detention of the person is necessary to: (i) preserve or obtain evidence related to the offence or to another terrorism offence; or (ii) complete the investigation into the offence or into another terrorism offence; and (c) the investigation into the offence is being conducted properly and without delay; and (d) the application has been authorised by an authorising officer; and (e) the person, or his or her legal representative, has been given the opportunity to make representations about the application. (3) … the instrument must set out: (a) the day and time when the extension was granted; and (b) the reasons for granting the extension; and (c) the terms of the extension. … (7) The investigation period may be extended any number of times, but the total of the periods of extension cannot be more than 20 hours.

[4]

Evidence Act

Section 138 of the Evidence Act 1995 (NSW) relevantly provides: 138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. Note. The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth.
Section 85 of the Evidence Act provides: 85 Criminal proceedings: reliability of admissions by defendants (1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant: (a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence, or … (2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. (3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account: (a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and (b) if the admission was made in response to questioning: (i) the nature of the questions and the manner in which they were put, and (ii) the nature of any threat, promise or other inducement made to the person questioned.
Section 90 of the Evidence Act relevantly provides: 90 Discretion to exclude admissions In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

[10]

Khaled's evidence about promises having been made to him on 29 July 2017

Khaled's evidence in chief on the voir dire was that, on the evening of 29 July 2017, he told Federal Agent Seneviratne and Detective Kazzi that he had not taken a bomb to the airport at all on 15 July 2017 and that he had only told his brother Tarek that he had taken the bomb "to get him off my back". Khaled said in his evidence: "Then he [Federal Agent Seneviratne] said to me, 'So you didn't take it to the airport.' I said, 'I'm telling you there's no airport. I didn't even take it to the airport. I'm telling you the one who's travelling is my brother, not me.' That's when he said to me, 'So, you didn't connect it?' [I said] 'I'm telling you I didn't even connect it, I didn't even do nothing.' He [Federal Agent Seneviratne] then he said, 'Do you know something?' I said, 'What?' He said to me, 'You got something illegal.' He said 'They're going to put you behind bars in gaol for 10 years.' I said, 'What do you mean I'm going to go to gaol for 10 years? What have I done? You are supposed to thank me. I didn't do nothing. If anyone else would have done something. You are supposed to thank me, not put me in gaol for 10 years.' Then Peter [Kazzi] ‑ Peter then he told me, 'Well, look, Khaled, say you take it to the airport and you saw kids and you saw people, your heart felt for them and you didn't do it. This is ‑ look good for you.' Then I said what he told me, but not on that day, I said when we had the interviews."
In other words, Khaled's evidence was that Detective Kazzi had instructed him, in a conversation that was not recorded, to say in the recorded interview, contrary to the fact, that he had taken the bomb to the airport, intending to put it in his brother's luggage which was to be checked in for the Etihad flight, but that when he had seen children at the airport, he had decided not to go through with it. According to Khaled, Detective Kazzi told him that if he said that and told them where the bomb was, he would not be charged and would be able to go home within seven days. Khaled's evidence was that, because of these promises, he was, in effect, happy to answer all of their questions and be as forthcoming as possible about what he knew and what he had done, not only in relation to the bomb but also with respect to a chemical compound and a further chemical explosive device. I do not accept this evidence.
Khaled said in his evidence on the voir dire that he knew nothing of the criminal justice system and that the only time he had previously been questioned was in about 2015 he had been interviewed by Australian Security Intelligence Organisation (ASIO) about his brother (who was a senior member of ISIS in Syria) and other members of his family and that, at the conclusion of the interview, the ASIO agents had simply thanked him. I do not accept his evidence that as far as he was concerned he was not a suspect but was merely answering questions to assist the police officers in their investigation of others.

[14]

The visit of Elie Srour

The Custody Management Record in respect of Khaled at Burwood Police Station contained the following entry made, at 9.57pm on 29 July 2017, by Peter Bradbury who was noted as the "Responsible Officer": "Phone call received from Elie FROUR [sic, SROUR]. He stated he is a solicitor and is enquiring if the prisoner is in custody. After talking with the OIC, it was stated to him that police cannot confirm if any persons are in custody. He stated that he will attend the police station."
Federal Agent Seneviratne did not recall being aware of this phone call or any subsequent visit by Mr Srour. He remembered there being a reference to a legal practitioner in a recorded interview, which was identified in re-examination as having occurred on 1 August 2017 (see below). Detective Kazzi noted Mr Srour's name, and mobile number as well as the word "solicitor" and the name of a firm in his hand-written notes of 29 July 2017. Detective Kazzi explained in cross-examination that it is not the practice of police to "advertise" who is in custody. He said that it was a suspect's right to appoint a solicitor and that a solicitor who has already been instructed by a suspect who was in police custody would be allowed to see that person.
The Custody Management Record noted that at 10.20pm on 29 July 2017 Khaled was in cell 1 "[f]or rest". There was a further note at 10.24pm that Khaled requested that he be woken at 5.30am "for prayers and medication".
I accept Mr Srour's unchallenged evidence that, on the evening of 29 July 2017, he and two of his employed solicitors attended Burwood Police Station at the request of a member of Khaled's family. I infer from the entry in the Custody Management Record referred to above that the visit occurred after 9.57pm. When they arrived, they were told that they could not speak with Khaled as he was asleep. I consider it to be likely that Mr Srour adopted his usual practice of asking police officers to wake the accused so that he could speak to him. I infer that the police at Burwood declined the request. Mr Srour did not give evidence that he had left a business card with Detective Kazzi.
Detective Kazzi accepted in cross-examination that a solicitor had come to Burwood Police Station and had given him a card which was to be provided to Khaled. I infer that the card was the one that Detective Kazzi gave to Khaled on 1 August 2017 in the course of the recorded interview on that day (see below). The evidence is not sufficient to identify the solicitor who left the card, although it is at least possible that it was Mr Srour.
Khaled's evidence on the voir dire was to the effect that Detective Kazzi told him that a solicitor had come for him but assured him that, as he was not going to be charged, there was no need to waste his money on a solicitor. For the reasons given below, I do not accept this evidence. It is, in any event, inconsistent with the exchange that occurred in the course of the recorded interview on 1 August 2017 (referred to below) when Detective Kazzi admitted that he told Khaled for the first time that a solicitor had visited him days before. Khaled's response on 1 August 2017 was not that he had been told that he did not need a solicitor because he had not been charged, but rather that his family was arranging a solicitor for him and that he would see the solicitor whom his family had arranged when he (the solicitor) arrived.

[15]

The application for an extension of the investigation period

At 9.58pm on 29 July 2017 Detective Kennedy applied, pursuant to s 23DE of the Crimes Act, for an extension of the period of investigation in respect of Khaled for a period of 20 hours. Detective Kennedy's reasons, as set out in the application, noted that it was necessary to enable police to "preserve and obtain evidence" including by execution of search warrants. Detective Kennedy also referred in his application to the possibility that other, as yet unidentified, people might be involved in terrorist acts. He said, in the application, that it was necessary to detain Khaled to ensure that the further inquiries take place "without the possibility of interference" by Khaled. As at that date, searches had already commenced and specialist teams were involved in examining seized items.
Federal Agent Kennedy also said, in this statement in support of the application: "In a situation where there are multiple individuals under arrest, each may have different information in relation to the preparation and planning for a terrorist act in which Police allege they are engaged. Police require the opportunity to collate and consider information each may provide alongside results of the investigative enquiries detailed above, before putting this information to each of the [four] individuals under arrest."
In cross-examination, Federal Agent Kennedy explained that it was: ". . . an ongoing investigation. We had identified four people suspected of being involved in a terrorism offence. We didn't know if there was other people involved. We don't know if there was other locations that some property could have been located at."
When asked in cross-examination by Mr Pontello whether the main reason the decision was made to detain Khaled was to give investigating officials the maximum opportunity to question him, Federal Agent Kennedy said that it was not. He said: "[T]he main reason was because we had multiple suspects, multiple locations, we still ‑ the possibility or suggestion there may have been other devices out there, and also other people that we hadn't identified or who hadn't come to notice. So, no. It was an investigation into the ‑ to the incident as opposed to an investigation into one specific person, sir. … [I]f there was one person who had one house and one car, the investigation could have been over in a day and a half and this may not have been required. But because it was such a complex investigation with so many people, so many locations, that ‑ that's why it was deemed appropriate to make the application."
I also note the unchallenged evidence of Federal Agent Foster that it took seven days to complete the search of Khaled's premises. He said: "The duration of the searches of these premises was in some cases extended due to thoroughness of the search to mitigate against the risk of missing items which would pose a risk to the community."
At 11.04pm Federal Agent Seneviratne spoke with Khaled (who had been in his cell "for rest" since at least 10.20pm) about the application for an extension of the investigation period and told him that he could make representations to the magistrate about the application. Khaled declined to do so.

[19]

The recorded interview on 30 July 2017 between 10.11am and 11.17am

The transcript recorded that, at the commencement of the first interview at 10.11am, Federal Agent Seneviratne gave the usual cautions about Khaled not having to say or do anything but that anything he said or did could be used in evidence against him. Khaled was asked to put the effect of the caution in his own words and, in the course of so doing, acknowledged that what he said could be used in evidence against him. He said: "Well it's mean [sic, it means] you're not going to force me to say if I don't say it."
Khaled was also told that he could speak to a friend or relative to inform them of his whereabouts. At this point he indicated that he wanted to speak with his wife. Before the interview was suspended to allow this to occur, Khaled was also asked whether he wanted to speak with a legal practitioner, to which he responded, "Not now."
The transcript recorded that the interview was suspended at 10.15am until 10.26am to permit Khaled to speak with his wife. When the interview was resumed, Khaled was given the same cautions again. Federal Agent Seneviratne also indicated that he proposed to ask some things "because this is the first time we've spoken". The content of the interview is inconsistent with the topics having been previously discussed in a non-recorded discussion as alleged by Khaled.
The transcript recorded that the interview was suspended at 11.17am for Khaled to use the toilet. As referred to below, it was not resumed until 1.29pm.
When Khaled was cross-examined about having agreed that he would not be forced to say anything he did not want to say, he said: "Because I had been promised, not forced. There is a difference between 'forced' and a 'promise', sir. If he, like, forced me different and if you promise me different. If you force me that mean you tell me, you have to speak. They didn't tell me I have to. They promised me, if I say that. You know what I'm saying, sir? They never forced me. Nah, that was good. They never forced me. That is what I'm trying to tell you, sir, they never forced me." [Emphasis added to show Khaled's emphasis in his oral evidence.]
I regard this exchange as an indication that Khaled was acutely aware of the ramifications for him of his evidence on the voir dire. He adjudged the harm that could be done to him by answering one way or another and assessed what would be in his interests at the time. This approach led to several inconsistencies in his evidence which are referred to in more detail below.

[20]

The period from 11.17am until 1.29pm on 30 July 2017

According to the Custody Management Record for 30 July 2017, Khaled was in his cell at about 12.58pm. A subsequent entry noted that he was in ERISP Room 1 at 1.15pm.
An entry at 1.28pm on 30 July 2017 recorded that the ERISP machine in room 2 was "not operating". The "responsible officer" who made the note was identified as "Simon Moore". He was also the responsible officer for the earlier note at 1.15pm.
According to Khaled, he had been asked at about 1.28pm in the course of a recorded interview whether anyone had made a promise to him and he had answered "yes". Khaled's evidence was that Detective Kazzi immediately removed the disc from the machine, broke it and put it in the bin and the two officers (Federal Agent Seneviratne and Detective Kazzi) started laughing and said, "Don't mention that." According to Khaled, this was the reason that they had to change rooms. Khaled's evidence is reflected in the passage below (although it also appears elsewhere in the transcript): "Q. Yes, where it says 1.29 or 13:29 you are saying that it was in another interview room just before this that conversation happened? A. No sir, look, you see, the first one where he say it was 'suspended' I think this is room 1, so I went. I went to the toilet, the loo. Then we come back and then we sit in the same room, sir, we didn't change the room, sir. Then they put CD in. Then ‑ I never said 'promise', he said 'promise'. I never said 'promise'. I just said 'yes'. Then he stopped. You know what I mean? So when he stopped it, sir, he called the officer, a uniform officer, and to tell them the machine is wrecked and they started laughing. They said, 'You wrecked the machine?' And we start laughing. Then that is when we took a break up to 1.30, then we come back for the second room, not the same room. That is what I'm trying to tell you, sir. Q. I've put to you already that never happened, you say it was at this stage in the process? A. It happened, sir. Q. Just go back then to page 34 you say, at question 643, you are reminded about the caution? A. Yes. Q. You said, in answer to that, you understood what that meant? A. Yes sir. Q. Again, you understood it meant you didn't have to answer any questions, if you didn't want to. Didn't you? A. Yeah. Q. Then question 647, you were asked: 'Yep, great, thanks very much, and did we discuss anything with you in relation to the interview while we were gone? We just organised those things for you, do you agree with that?" And you said 'yeah'? A. Yeah, because, sir, I keep saying to him 'yes' every time he's going to broke the CD. I imagine he is going to broke CD, every time broke CD, broke CD, broke CD. (Indicated)."
This version was denied by Federal Agent Seneviratne and Detective Kazzi. I do not accept Khaled's evidence, which I regard as a fabrication designed to create the impression that the police were guilty of misconduct in order to support Khaled's allegation that they had made promises to him before the recorded interviews commenced.
It is of some importance that the entries in the Custody Management Record are not, for reasons which do not appear from the evidence, arranged in chronological order by date. Rather, they are arranged in time order, irrespective of the date to which the entry relates. This means that the entry for 1.28pm on 30 July 2017 appears immediately above the entry for 1.29pm on 31 July 2017. A reader who is not alive to the somewhat obtuse method of ordering the entries could be misled into thinking that the two entries were related and that once it had been discovered at 1.28pm that the ERISP machine was not working, Khaled was moved into another room at 1.29pm. This was the hypothesis which Mr Pontello (on Khaled's instructions) put to, Federal Agent Seneviratne (which he denied). That the entries relate to consecutive days, rather than the same day is also supported by the identity of the "responsible officer". Simon Moore is the responsible officer for the entries on 30 July 2017 at 1.15pm, 1.28pm and 1.45pm. On 31 July 2017, Kenneth Hayes is the responsible officer for entries at 1.29pm, 1.40pm and 1.50pm. Thus, the apparently sequential entries for 1.28pm and 1.29pm cannot provide any objective support for Khaled's evidence that the officers broke the discs at around this time because he revealed in the course of the recorded interview that a promise had been made to him.
Further there is no indication in the transcript of the recorded interviews that there was any change of tape at or around 1.28pm. This occurred later in the afternoon, at 3.52pm (see below).
I regard Khaled's evidence on this topic as an attempt to tailor his evidence to other objective evidence, the effect of which he, in this instance, misunderstood.

[22]

The period between 2.55pm and 3.28pm on 30 July 2017

It appears that, during the break, Federal Agent Seneviratne updated the Operation Silves timeline. The entry made at 3.19pm purported to summarise the substance of what Khaled had already told the interviewing officers (Federal Agent Seneviratne and Detective Kazzi) as follows: "15.19 Update from free recall phase in ROI with K. KHAYAT, he has stated: - acting alone, no one else on shore is aware; - Tarek and one other male (NFD) overseas have been organising this since August using Telegram; - did do it a few weeks ago but saw all the people and kids and changed his mind; - made two drawings of the 'bomb' (his reference) - imported inside welding machine; and - claims he is not a violent person but he sees things on youtube, Muslims dying and then thinks bad things." [Emphasis in original.]
Federal Agent Kennedy explained that "free recall" was a term used to describe a version given by a suspect in a general narrative rather than by way of answers to specific questions.
It was put to Federal Agent Kennedy in cross-examination that he was satisfied, when he recorded the entry for 3.19pm on the timeline, that Khaled had in fact committed the offence for which he was arrested. He answered in the negative and explained that, although Khaled had made admissions, he did not know whether Khaled had been acting alone or whether other devices were involved. Federal Agent Kennedy explained his understanding that one of the purposes of extending an investigation was to allow police time to question a suspect about items that had been seized following the suspect's arrest.
Although Federal Agent Kennedy accepted that the investigation would probably not have been prejudiced if Khaled had been charged on 30 July 2017 at about 4pm, I gained the impression that this acknowledgement was borne of hindsight and did not reflect his thinking at the time.
When Federal Agent Woods was asked about the entry on the timeline at 3.19pm on 30 July 2017, he agreed that he was personally satisfied that Khaled had committed the offence for which he had been arrested. However, he said that it would have been unreasonable to charge Khaled on the afternoon of 30 July 2017 because the investigation was incomplete. Federal Agent Woods, the SIO, explained that further opportunities for searching became apparent after Khaled's arrest. He, too, said that he regarded Khaled's statement that he was acting alone as a false claim, which needed to be investigated. Federal Agent Woods' view was that charging Khaled would effectively have concluded the opportunity to interview him. He did not, however, suggest that the investigation would have been prejudiced had Khaled been charged and brought before a judicial officer on 30 or 31 July 2017.

[24]

The recorded interview on 30 July 2017 between 6.56pm and 8.48pm

At the resumption of the interview Federal Agent Seneviratne again gave Khaled the usual cautions. Khaled acknowledged that they had not discussed anything relating to the interview during the suspended period.
Khaled continued to make admissions, including that he knew that the device was a bomb (page 177); and that he knew that it would have exploded (page 178).
In this interview session, while Khaled was making admissions about where he expected the airline to be when the bomb went off, he said, at A2741 (page 200): "Because that's what I've been telling you. Do I get, like, something in the court for that? Because, like, I refused to do it [allow the bomb on the plane]. I know it's guilt but, you know what I mean?"
I regard this statement by Khaled to Federal Agent Seneviratne and Detective Kazzi as amounting to an acknowledgement by Khaled that he knew that he had committed a crime for which he would be punished but that he was hopeful that he would obtain some benefit or discount because he had given so much information to police and had not, in the end, allowed the bomb to be planted on the plane. This was, in my view, entirely inconsistent with his contention on the voir dire that Federal Agent Seneviratne and Detective Kazzi had promised him that, if he answered their questions, he would not be charged. His reference to "guilt" can only be a reference to guilt of an offence for which he would be charged. His statement in the record of interview set out above was also inconsistent with the following evidence in Khaled's cross-examination on the voir dire: "I never feel guilt. I never do nothing in my life."
Shortly after this statement, Khaled began talking about a new topic in the recorded interview, which he prefaced with the following: "When we finish from the bomb, we talk about the next stage they told me."
At this point in the recorded interview, Khaled admitted that his brother Tarek and another man had instructed him how to make chemical weapons and that he had burned aluminium and sulphur to make the ingredients for an explosive device, which Khaled told the officers he regarded as being more dangerous than the bomb. Khaled also admitted that they had sent him videos instructing him how to make such weapons. After further questioning on these topics, in answer Q3024, Khaled said in response to a question about the chemical ingredients: "I've got them on the paper. They were in my wallet."
This was a reference to a piece of paper which was in Khaled's wallet which was seized when he was searched following his arrest. This topic was raised by Khaled and not by the police officers. It went far beyond the topic of the bomb which Khaled contended was covered by the "promise" made to him by the police officers. That he was prepared to divulge new information to the police of which, as far as he was concerned, they were unaware, is a powerful indication that he was endeavouring to put himself in the best light by disclosing what he knew. The questioning continued until 8.48pm on 30 July 2017, at which point the interview was suspended until the following morning. Federal Agent Seneviratne indicated that they would put new tapes in the following morning as the tape was "about to be full" (Q3588).

[31]

The recorded interview on 1 August 2017 between 9am and 10.41am

At the commencement of the interview at 9am on 1 August 2017, the usual cautions were given and Khaled was asked whether he wanted to speak with a friend or relative. He confirmed that he had told them before the interview began that he had wanted to speak with his wife and they had allowed him to try to contact her but she was unavailable. Khaled confirmed that he was happy to continue with the interview and try her later. He was also asked whether he wanted to communicate with a legal practitioner, to which he responded: "My family, they, they do that for me."
The following exchange then took place between Federal Agent Seneviratne and Khaled: "Q37 O.K. So do you wish to communicate with a legal practitioner? A When they send him. Q38 O.K. A Yeah. Q39 O.K. Is there anyone you wish to speak to right now about that? A Not until they send them, no. Q40 No. OK. DETECTIVE SENIOR CONSTABLE KAZZI Q41 [9.04] I just want to clarify, just a bit clearer on the microphone. So do you want to speak to a solicitor now? A When I spoke, when I spoke to my family yesterday, they told me that they put a solicitor for me and he's going to come here, but he didn't come here. Q42 O.K. And do you want to speak to a solicitor when he comes? A When he comes, yeah. . . . Q45 Do you want to speak to him now or before? A No, we continue. When he comes."
Detective Kazzi then told Khaled that he had been given a card either the previous day or the day before by a solicitor. Although it is possible that the card was Mr Srour's, the evidence is not sufficient to determine whether it was. Khaled asked the officers if they wanted him to call his family to find out if the solicitor whose name was on the card was the one the family had arranged or whether it was someone else. After some further discussion on the topic, at 9.07am the interview was suspended to arrange for Khaled to speak to his wife. The interview resumed at 9.16am, at which point Khaled told the police officers that his wife had not known the name of the solicitor but had told him that the first name of the solicitor who was going to visit him was "Mustafa". Khaled confirmed that he was happy to continue with the interview. The cautions were then repeated as well as the statement of rights. At Q128, Federal Agent Seneviratne said: "Q128 [09.18] No. O.K. Thanks. O.K. So if anything changes in relation to phone calls or family or solicitors, just let us know at any time. A Thank you."
The interview was suspended at 10.41am for the purposes of a break.
Khaled's evidence about the exchange regarding the solicitor on 1 August 2017 was that he said to Detective Kazzi when he found out that a solicitor had visited him a few days earlier, "I said to him, 'But you didn't tell me I got solicitor two days ago. Why you didn't tell me I got solicitor?'". This evidence is inconsistent with his earlier evidence that he had been told on the first evening that a solicitor had visited him but that he had not bothered to see him because the police had advised him that it would be a waste of money to have a solicitor because he was not going to be charged. It is also inconsistent with Detective Kazzi's evidence that he did tell Khaled on 29 July 2017 that a solicitor had come to see him.

[36]

The conversation between Khaled and police officers on 15 September 2017

On 15 September 2017, Federal Agents Seneviratne and Dickson went to the Silverwater Correctional Centre to speak to Khaled who was still in custody there. Federal Agent Seneviratne intended that their conversation be audio-recorded with a hand-held digital recorder. However, Khaled told him that he did not want the conversation to be recorded as a consequence of which the recording was turned off.
As far as Federal Agent Seneviratne was concerned, the purpose of the conversation on 15 September 2017 was to put further questions to Khaled to obtain further information relating to the improvised explosive device (IED), and its location, as police were concerned about the risk to the community. Federal Agent Dickson confirmed in his evidence that police were hoping to locate the welding machine that had been sent from Turkey to Australia which allegedly contained the IED and was subsequently discarded in the rubbish. Federal Agent Seneviratne accepted in cross-examination that what Khaled had done with the welder packaging in which the bomb had entered Australia was of concern to him.
Federal Agent Dickson made notes of the conversation (Ex 1D1- VD). Mr Dickson noted on the first page of his five-page note that Khaled said that he was "shocked he won't be going home". This was relied on by Mr Pontello as corroborating Khaled's evidence that he had been given a promise that he would be able to go home in seven days.
Khaled wrote on a piece of paper, which was dated 15 September 2017: "I, Khaled Khayat, am happy to speak to police without my law [sic] present. I understand this talk will not be used against me in court. I ask for the tape to be off."
According to Federal Agent Seneviratne, Khaled wrote this note at the end of the conversation. Both Federal Agents Seneviratne and Dickson signed Khaled's document to indicate that it had been produced at the time of their conversation. Khaled also said that he had not written the note himself but that it had been dictated to him by Federal Agent Seneviratne. Mr Kazzi's evidence was that Federal Agent Seneviratne had asked Khaled to write the note. I accept that the note was written at Federal Agent Seneviratne's suggestion but I do not accept that he dictated the note. I infer that Federal Agent Seneviratne suggested that Khaled write the note, which all three present signed, in order that the matter would be appropriately recorded.
Both Federal Agents Seneviratne and Dickson accepted that none of the information gathered on 15 September 2017 was to be used as evidence against Khaled or anybody else.

[37]

The credibility of witnesses

In order to determine the Inducement Ground, it is necessary to make findings about what actually occurred in light of the conflict between the evidence of Khaled on the one hand and, principally, Federal Agents Seneviratne and Kazzi on the other.
As the plurality (Gleeson CJ, Gummow and Kirby JJ) said in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; at [31], the best guide to determining disputed facts is to do so "...on the basis of contemporary materials, objectively established facts and the apparent logic of events."
The objective circumstances included the following: 1. The questioning of Khaled took place in the context of a JCTT investigation which involved AFP and NSW Police Force officers; 2. The investigation involved very serious offences, which included offences for which the maximum penalty is life imprisonment; 3. The officers referred to the relevant AFP protocol on several occasions in the course of their evidence which indicated an intention to abide by it in the context of a hierarchical structure in which they were not the supervising officers; 4. Substantial documentary records were kept, both by the NSW Police Force in the form of a Custody Management Record at the Burwood Police Station; and the JCTT, in the form of a timeline as well as a field book which recorded matters, in minute chronological detail, Khaled's activities and movements; communications made by and with him; and the identity of officers who were on duty at any given time; 5. There was a significant distinction drawn between the recorded interviews conducted on 30 and 31 July and 1 August 2017 before Khaled was charged and those interviews or conversations which took place on 18 August 2017 and 15 September 2017 after he was charged. The former category involved the giving of a caution at the commencement and a statement of rights which was repeated following every break, whereas the latter discussions did not; 6. A transcript was taken of the recorded interviews and of the discussion on 18 August 2017, which has not been challenged on behalf of Khaled. Nor was any application made for the tapes to be played to the court for the purposes of this application which would have permitted me to determine whether there was any discrepancy between the tapes and the transcript, as alleged by Khaled in his evidence on the voir dire; 7. When Khaled was interviewed by ASIO in 2015, the questioning had taken place in informal circumstances and Khaled had neither been arrested nor taken into custody.
The internal consistency of a witness's evidence also provides some guide to credibility. There was a number of inconsistencies in Khaled's evidence. For example, his evidence that he, in effect, reprimanded Detective Kazzi on 1 August 2017 for not letting him know that a solicitor (Mr Srour) had visited him on 29 July 2017 was entirely inconsistent with his evidence that Detective Kazzi had told him on 29 July 2017 that a solicitor had come to see him but advised him that he did not need a solicitor because he would not be charged. Further, there was no explanation for his wanting to see a solicitor (Mr Kheir) when his family arranged for one for him if his true belief was that he would not be charged
Any belief on Khaled's part that he would not be charged was entirely inconsistent with the answer in the record of interview in which he acknowledged his guilt but indicated that he hoped that he would obtain a benefit from the court for the assistance he had given in providing such a comprehensive account. It is also inconsistent with his admission in the recorded discussion on 18 August 2017 that he "thought he might get charged". The three officers who were present when he was charged, Federal Agent Seneviratne, Detective Kazzi and Federal Agent Foster (who was not called), were not cross-examined about the charging process which took place at about 4.55pm on 3 August 2017. Khaled did not give evidence of being shocked at the time he was actually charged. When it was put to Khaled that he was charged at the Burwood Police Station, he said that he did not know that he had been charged. While I can accept a level of ignorance before Khaled consulted a solicitor, I do not accept that he did not appreciate that he had been charged at that time, particularly as Mr Kheir had been giving him advice from 1 August 2017, which was before he was charged.
Khaled's evidence that he had not even gone to the airport and that he had admitted that he had gone to the airport only because he had been promised that he would not be charged was inconsistent with his evidence that he knew that the police had seen CCTV footage of him at the airport with Amer on 15 July 2017. It was also inconsistent with his evidence that he was "happy" to tell the truth because he knew that he would not be charged. His evidence of his preparedness to "tell all" (including that he had assembled the bomb and taken it to the airport on 15 July 2017 but decided, for whatever reason, to bring it home) cannot be reconciled with his evidence that he told a self-incriminatory lie (that he had taken the bomb to the airport) when he, on one of his versions, had not even been to the airport that day.
That Khaled was, on his own account, prepared to declare, in the course of a recorded interview that he had, in fact, been given a promise (which, on his version, led to the discs being taken out of the machine, broken and discarded) is inconsistent with other evidence that he was prepared to say whatever the police wanted him to because they had promised him that he would not be charged.
Khaled's recollection, while apparently definite, was flawed and unreliable. He denied that Federal Agent Seneviratne had participated in the discussion on 15 September 2017 when the transcript which was admitted without objection showed that Federal Agent Seneviratne had asked most of the questions.
Khaled's indication on 15 September 2017 that he was "shocked" that he was not going home is inconsistent with his admission in the recorded discussion on 18 August 2017 that, although he thought he might get charged, he only thought he might get bail, at least from the police, having regard to the extent of the information he had voluntarily divulged. By the time of the discussion on 15 September 2017, Khaled had been charged, refused bail and had a lawyer acting for him since 1 August 2017. In these circumstances, I do not accept that any "shock" that he was not going home was other than feigned.
Mr Pontello sought to make much of the distinction in the evidence of Federal Agent Seneviratne and Detective Kazzi between instances where they did not recall particular things being said and when they specifically denied that certain things occurred. My impression from seeing and hearing the two officers give evidence was that they tended to say "I don't recall" in the earlier stages of their cross-examinations but, as the propositions put by Mr Pontello on instructions from Khaled became, from their point of view, more preposterous, they expressed their confidence that certain things had not occurred in express denials.
I am not persuaded that Khaled actually believed that he would be released within seven days. He may well have understood, as a result of being told about the application for a specified time provision under s 23DD, that he might remain at Burwood Police Station for a period of up to seven days. However, if this were the genesis of his belief, it could not plausibly have been engendered before he was informed of the application at 6.06pm on 30 July 2017. He may well have believed that there was a real prospect that he would be granted bail following that period. Alternatively, he may have realised that he would probably be in custody until his trial and simply wanted to placate family members with a (false) assurance that his time in custody would be relatively short. Another possibility is that he did not want his children to appreciate the gravity of his admitted conduct and had sought to allay their fears by giving them an entirely unrealistic prediction of when he would be unlikely to return home.

[39]

The discretion under s 85 of the Evidence Act

Mr Pontello relied on s 85 whether or not I considered that any threat, promise or inducement had been made to Khaled. As s 85(1) of the Evidence Act applies, the recorded interviews are not admissible unless the circumstances in which the admissions were made were such as to make it unlikely that the truth of the admission was adversely affected.
I accept that Khaled was, at the time of the recorded interviews, unfamiliar with the criminal justice system. However, I do not accept that he could have been under any misapprehension that there was any relevant similarity between ASIO's questioning of him in 2015 and the interviews conducted at Burwood Police Station on 30 and 31 July and 1 August 2017. In the latter instance, he had been arrested and was kept in custody; the interviews were recorded; he was repeatedly cautioned and informed of his rights; he availed himself of his rights from time to time, taking advantage of the opportunity provided to him to ring his wife, on occasions and specifically refusing the opportunity to contact a solicitor or defer the interview until he had legal advice.
Although Khaled's English was not flawless, he demonstrated a heightened capacity to express himself and to draw distinctions, such as the distinction between "force" and "promise". I did not discern any particular difference between the language he used in the recorded interviews and the language he used in the witness box. On occasions during the recorded interviews he said that he knew only the Arabic word rather than the English word for a particular noun but this was rare and tended to be confined to particular chemical compounds.
The nature of the questioning was particularly open, which reflected, in part, the police officers' desire to find out what Khaled wanted to tell them. The initial report to the Operation Silves timeline described the interview on 30 July 2017 as being in the "free recall phase". This term "free recall" was apt to describe much of the content of the recorded interviews. Khaled was both voluble and discursive. The officers did little to control or direct him, except on occasions, such as when they wanted to finish the topic of the bomb before moving to the new topic of the chemical weapon which had been raised by Khaled without any prior prompting by the officers. The transcripts of the recorded interviews indicated that whenever Khaled wanted a break, for whatever reason, the interview was suspended.
It may be that, for the reasons given above, Khaled thought that there was a prospect would be released within seven days, either on bail or for some other reason unrelated to any conduct by police. An incorrect assumption, however engendered and however erroneous, may, in some cases, be relevant to the question raised by s 85 of the Evidence Act: Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 at [56] (Gleeson CJ and Heydon J). Even accepting, contrary to my findings above, that Khaled actually believed that he would be released within seven days, I do not consider that this factor adversely affected the truth of his admissions.
I am satisfied that the circumstances in which the admissions in the recorded interviews were made were such as to make it unlikely that the truth of the admissions was adversely affected. Accordingly, s 85 of the Evidence Act does not prevent the admission of the recorded interviews into evidence. Nor do I discern any unfairness such as would incline me to refuse to admit the recorded interviews in the exercise of my discretion under s 90 of the Evidence Act. Because of my findings that there was no impropriety or contravention of Australian law in the recorded interviews, it is not necessary to address s 138 of the Evidence Act.

[40]

The alleged contravention

Mr Pontello accepted that each of the three statutory requirements in s 23DF(3) had been met. He submitted that what was lacking was the actual decision to extend the investigation period and that this was required by s 23DF(2). Mr Pontello accepted that the decision of the magistrate was, in effect, an administrative decision and that, accordingly, no order, as such was required, but that it was imperative that the magistrate actually grant an extension in terms. Mr Pontello contended that what was omitted from paragraph 6 of the draft instrument was essential to its validity.
The Crown submitted that the magistrate was, relevantly, a persona designata, who had been nominated as being the decision maker for the purposes of s 23DF. The Crown contended that it was not necessary that the magistrate do more than was required by s 23DF(5). The Crown also submitted that the circumstance that the space in paragraph 6 for the number of hours was not filled in did not mean that it ought be disregarded since it was, in any event, clear that the Magistrate had actually decided to grant the extension.
It was common ground that there was no prescribed form for the instrument which the magistrate signed. Accordingly, there was no express statutory requirement for a statement in the precise terms of paragraph 6. Thus, the present case is to be distinguished from cases, such as Cassaniti v Croucher (2000) 48 NSWLR 623; [2000] NSWCA 95, where the statutory authority for the issue of a warrant expressly required that an application or instrument be "in the form prescribed" and an applicant or judicial officer has failed to comply with the prescribed form. In such cases, the assistance afforded by s 80 of the Interpretation Act 1987 (NSW) (which requires substantial compliance, rather than strict compliance) has been found to be insufficient to save an instrument which does not comply with the statutory mandate from invalidity.
The question that arises is whether the instrument complies with s 23DF. I am satisfied that it does. I regard s 23DF(2) as being a conferral of power to grant an extension. The power to grant the extension is conditioned by three requirements: first, that the extension must be "by signed written instrument" (s 23DF(2)); second, that the magistrate must be satisfied of each of the matters in s 23DF(2)(a)-(e); and third, that the instrument must set out the three matters provided for in s 23DF(3). I am satisfied that each of these three requirements has been met.
For present purposes, I do not accept that there is an analogy between the exercise of this administrative power and the exercise of judicial power, which requires an order to be made. While a judicial officer exercises judicial power by making orders, for which reasons are required to be given, a judicial officer who is, as the magistrate was in the present case, exercising administrative power, need only decide to exercise a power or not, as the case may be, and fulfil whatever statutory requirements apply to such exercise of power. I regard an extension under s 23DF(2) as being a step in an administrative process and therefore an administrative function and not a judicial order. In this respect the instrument is similar to a warrant: see Ousley v The Queen (1997) 192 CLR 69 at 87 (Gaudron J) and 124 (Gummow J); [1997] HCA 49. In these circumstances, the statutory requirements were met without a statement to the effect of paragraph 6 of the draft instrument.
For these reasons, I am not satisfied that the Instrument Ground has been made out.

[41]

Alternative consideration of the discretion under s 138 of the Evidence Act

In case I am found to be wrong in my conclusion that the instrument complies with the Act, I propose to consider the discretion under s 138 of the Evidence Act on the footing that a paragraph in terms of paragraph 6 of the draft instrument was required as a matter of law to indicate that the magistrate had exercised the power under s 23DF of the Crimes Act.
The matters relevant to the discretion under s 138 of the Evidence Act are as follows. It was common ground that the evidence in the recorded interviews was highly probative of Khaled's guilt. Without the recorded interviews, the Crown case against Khaled would be purely circumstantial. I do not apprehend that the circumstantial evidence would not be sufficient without the recorded interviews, but the admissions Khaled made in the recorded interviews plainly add to the strength of the Crown case. The relevant offence is one which carries a maximum penalty of life imprisonment. In the present case the act of planning relied upon was the planting of a bomb in luggage which was to be carried on a passenger airline. If established, the offence would be an objectively serious example of that offence. The (assumed) impropriety of contravention was apparently the product of accidental oversight in an otherwise carefully filled in form.
Arguably, the contravention was contrary to Khaled's rights under the International Covenant on Civil and Political Rights since if the contravention made the instrument invalid, the continued detention of Khaled was unlawful since he had a right under Article 9(3) to be promptly taken before a judicial officer following his arrest and detention for the period of 4 hours provided for in s 23DB(5)(b). Having regard to the nature of the contravention, it would be highly unlikely that any action would be taken in relation to the contravention. There would be no difficulty in obtaining the evidence without contravention of Australian law.
In these circumstances I am satisfied that, if the instrument involved a contravention, the desirability of admitting the recorded interviews outweighs the undesirability of admitting evidence that has been obtained in the way that it was obtained.

[42]

The Investigation Period Ground

As referred to above, the Investigation Period Ground is an alternative ground to the Instrument Ground and presupposes the validity of the 29 July 2017 Instrument.
Mr Pontello relied on s 23DB(5) to submit that an investigation period begins when a person is arrested and ends "at a later time that is reasonable, having regard to all the circumstances." He submitted that the effect of s 23DB(5) was that the investigation period ended after a reasonable time, even if it had been extended by the magistrate pursuant to s 23DF and even if an instrument had been signed pursuant to s 23DD to allow for time to be disregarded. He contended that once that period had ended (because a reasonable time for the investigation had passed), the person in detention had a right to be released or brought before a judicial officer "as soon as practicable". He relied on s 23DB(12) to support the submission that the onus on the Crown to prove that the person was brought before a judicial officer as soon as practicable required the Crown to prove that the investigation period, and therefore the period during which the person was detained, was reasonable. Mr Pontello relied on Federal Agent Woods' agreement with the proposition that just because an application for specified time under s 23DD has been granted, the investigating authority "does not have carte blanche to use the entire period of time no matter what".
The Crown submitted that the construction for which Mr Pontello contended failed to have regard to the two statutory riders contained in s 23DB(5) that the sub-section was "subject to . . . (9)" and operated "unless the period is extended under s 23DF". The Crown argued that the effect of the rider, "unless the period is extended under s 23DF", was that, once a magistrate had exercised the power in s 23DF to extend the period, the investigation period ended at the expiry of the extended period or the charging of the suspect, whichever was the sooner. The Crown argued that the effect of the rider "subject to . . . (9)" was that once an instrument had been made under s 23DD specifying time during which suspension or delay of questioning may be disregarded, the investigation period continued for the period of the suspension plus any extension under s 23DF.
The Crown submitted that, in these circumstances, this Court has no jurisdiction to adjudicate on the reasonableness or otherwise of the investigation period and relied, by analogy, on the decisions which establish that a collateral attack on a warrant otherwise than as to its validity is prohibited: see Ousley v The Queen at 80 (Toohey J); 87 (Gaudron J); 124-7 (Gummow J) and Gould v DPP (Cth) [2018] NSWCCA 109 at [52] (Basten JA, Johnson and Adamson JJ agreeing).
The matters raised by Mr Pontello give rise to important questions of statutory construction. Although there is much to be said for the Crown's submission, the principles of legality require particular clarity of expression where the fundamental right to liberty is concerned: see Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 at [19]-[20] (Gleeson CJ). Further, because the course of the investigation cannot be predicted with any degree of certainty, the magistrate's instruments have a prospective element. Thus although the requirement for a magistrate to extend the period for the purposes of s 23DF or specify a period for the purposes of s 23DD, imports a degree of independent oversight into these matters, if the Crown's construction were correct, there would be little oversight into a choice by the investigating authority to keep a suspect in detention for the whole of the authorised investigation period, which could be a period of several days (being the 4 hours allowed in s 23DB(5); the maximum extension of 20 hours under s 23DF(7); and any further time specified time by a magistrate under s 23DD).
It is not necessary to decide this question in the present case since, even if the construction for which Mr Pontello contended is correct, I am satisfied, on the basis of the evidence of Federal Agents Woods and Kennedy, that the investigation period, being the time between Khaled's arrest on 29 July 2017 and his being charged on 3 August 2017 was reasonable in all the circumstances. I note that Mr Pontello did not challenge the period between Khaled's arrest and his being brought before a judicial officer via AVL on 4 August 2017.
I have taken into account in this assessment that in ascertaining any period of time for the purposes of s 23DB, the number and complexity of matters being investigated is a mandatory relevant consideration: s 23DB(6). The evidence of Federal Agents Woods and Kennedy, which I have summarised above, is to the effect that the investigation extended to a number of suspects and involved searches being undertaken of several residences and vehicles. Of particular importance was the search of Khaled's garage, which he had identified as the place where the bomb was stored. The evidence revealed that this search was particularly time-consuming having regard to the need for safety and care in carrying it out.

R v Khayat

At a glance

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Judgment (44 paragraphs)

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Legislation Cited (7)

Cases Cited (11)