R v Mallah

BACKGROUND 5 A consideration of this motion requires some elaboration of the background to the case, and an understanding of what occurred in the course of the undercover operation. 6 The brief, which was tendered along with some additional exhibits, discloses the following matters, in summary. 7 On 7 June 2002 DFAT advised the accused that the Minister had refused his application for a passport, following an adverse security assessment supplied by ASIO, on the grounds that the Minister was of the opinion that "he was likely to engage in conduct that might prejudice the security of Australia or of a foreign country". 8 On 12 June 2002 New South Wales Police conducted an informal interview with the accused during which he expressed views about becoming a martyr, of bringing Jihad to Australia, and of becoming a suicide bomber. 9 Between 2 June 2003 and 28 September 2003 telephone interception recorded the accused engaging in various conversations and text messages which, on the Crown case, are capable of being understood as involving inquiries about the obtaining of a weapon. 10 On 28 September 2003, acting on information that the accused had acquired a rifle from a man "Charlie" on 27 September 2003, a search warrant was executed by members of the NSW Police Service at the home of the accused. In the course of the search police found and took into their possession, amongst other things, a 0.22 calibre Sterling brand rifle, a magazine for that rifle containing three rounds, a quantity of 0.22 ammunition, a balaclava, a videotape, and a number of documents. 11 These documents included a handwritten message for ASIO concealed in the battery compartment of a tape recorder, referring to his complaints about being wronged by ASIO in denying him a passport, indicating an intention to "take ASIO building hostage", and to "take the life of every ASIO officer I get my hands on", and referring to the need for the government to "change, stop harassing Muslims, and stop spying on them, and stop supporting America and its government". 12 In another document located in the same place there were statements to the effect that his target was ASIO and that he was declaring a personal Jihad against his oppressors "to please Allah" for the "weak or helpless Australian citizens who have had their rights abused, or their freedom taken away from them, or their privacy invaded". It went on to note that he had chosen "to die to divert the attention of the government and its various organisations to a certain degree away from this blasphemy of certain individuals…" 13 Various other documents were seized, including one entitled "How can I train myself for Jihad" and one entitled "statements made by fone" apparently comprising explanations for various claims such as "I want to be a suicide bomber", "I feel like hijacking a plane and hitting Canberra" and so on. Additionally, there was a copy of a transcript of an interview in which he had participated with Alan Jones on 15 October 2002, and a transcript of the Sunday Program on Channel 9 in which he had also participated. 14 Further documents seized included correspondence, apparently addressed to ASIO. Images were taken of documents purporting to be his last will, which was not, however, seized. 15 When the accused was taken to Bankstown Police Station, he declined the request of police that he be interviewed in relation to the location of the firearm at his premises. 16 After being charged in relation to the firearms offences he was, on 30 October 2003, convicted of those offences and was fined $1400. A Crown appeal was brought against that sentence which was listed for hearing in the District Court in March 2004. 17 An appeal to the Administrative Appeals Tribunal, which the accused had lodged in relation to the refusal of his passport application, was listed for a resumption of the hearing on 9 December 2003. 18 Between 28 September 2003 and 17 October 2003, further telephone conversations were intercepted which, on the Crown case, could be consistent with the accused making further inquiries for the acquisition of a weapon. 19 Further information was obtained which led to concerns on the part of police, particularly the Counter Terrorist Command of the NSW Police Service, that the accused might be planning a terrorist act, as a consequence of which a decision was made to conduct an undercover operation. It was known by that stage that the accused had been in contact with the media, particularly "The Australian". 20 To that end, the services of the Undercover Branch of the NSW Police Services were engaged, and, at a briefing attended by Detective Inspector Schagen and Detective Sergeant Abeyasekara on 27 November 2003, "Greg" was supplied with certain information, including the fact of the prior arrest of the accused on the firearms offences, and the recovery of documents in his home, that were suggestive of a plan to kill ASIO operatives. 21 He was given instructions to endeavour to meet the accused, posing as a journalist, and to engage him in discussion. 22 It was the evidence of Greg, on the voir dire, that as he understood the operation and his instructions, at that stage, it was to speak to Greg and to establish whether he had a plan to cause serious injury or death to an officer attached to ASIO or DFAT. He also accepted that he understood that, if the existence of this plan was confirmed, the conversations with him would be likely to be used as evidence against the accused in a criminal prosecution. He also accepted that if the earlier possession by the accused of a rifle and the location by police of his papers came up in conversation, they could be addressed. 23 Following the briefing, Greg made a telephone call to the accused on 27 November introducing himself as a journalist who had read a recent article about him in the Australian newspaper and who was inquiring as to whether he could do another story on him. The accused volunteered that he had sold something to The Australian and had something else up for sale. The call culminated in the arrangement of a meeting with the accused for 28 November.