R v Taleb [2019] NSWSC 396 | Case summary

Judgment

On Friday 29 March 2019, the fifteenth day of Mr Taleb's trial, the Prosecutor raised an objection to the evidence of a witness Keysar Trad, who the accused proposed to call the following Monday. A statement, or proof, or report of the witness was tendered on the voir dire. [1] That report had only very recently been provided to the Prosecutor. I allowed parts of the report but disallowed other parts. I indicated I would provide reasons later. These are those reasons.
The accused sought to call Mr Trad to give evidence in rebuttal of some expert testimony provided by a prosecution witness Dr Rodger Shanahan. Dr Shanahan gave evidence about the history of the Islamic religion and parts of the Middle East, the geography of the region, the beliefs and practises of the Islamic State and/or ISIS, the imagery and propaganda used by ISIS, and the tactics and progress of the war in Iraq and Syria. There was no objection to Dr Shanahan's evidence. There was no dispute as to his expertise to provide opinion evidence on these subjects or in relation to the relevance of the evidence.
The objection to Mr Trad's evidence was three-fold. First, no report was served in accordance with the relevant provisions of the Criminal Procedure Act 1986. Second, many (perhaps most) of the propositions to be advanced by Mr Trad were not put to Dr Shanahan: Browne v Dunn (1893) 6 R 67. Third, it was submitted that Mr Trad did not have the necessary expertise to provide the opinions contained in his proof of evidence.

Mr Trad's expertise to provide the opinions

Mr Trad's evidence fell into two categories. The first concerned the religion of Islam; including radical Islam, Islamic imagery, the source of beliefs held by practitioners of that faith and the meaning of certain words and verses from the Quran and other holy works and religious texts. The second concerned the practices of Islamic State, the conflict in Syria and other related matters.
Mr Trad's qualifications were set out on the first page and a half of his report as follows: Experience: I am the immediate former president of Muslims Australia, the Australian Federation of Islamic Councils (AFIC). This was an elected position, AFIC was established 55 years ago, it is the peak body for Australian Muslims. It is a national umbrella organisation. I am also a former president of the Lebanese Moslems Association. I have publicly addressed issues relating to human rights, Islam and the Muslim community. I have been for many years, a regular speaker at various events including peace and human rights rallies and gatherings. I am a roving Imam delivering Friday sermons in various mosques and prayer halls around Sydney and occasionally in other states. I established the Sydney based Islamic Friendship Association of Australia in 2003 in order to promote friendship, understanding and respect between Australian Muslims and the rest of Australian society. I am a published writer of newspaper articles, Islamic literature and poetry. I am a parent and an informal educator. I have given thousands of interviews and background briefings to various media and other organizations. For many years, I regularly delivered cultural and religious briefings to community groups, churches, government and quasi-government bodies. I have edited the Abdullah Yusuf Ali translation of the meaning of the Holy Qur'an. This edited translation has been published and subsequently endorsed (and again published) by the World Islamic Call. http://mostinterestinRbook.bloRspot.com.au/ I have translated several books about Islam (including 4 books written by the current Grand Mufti of Australia) and I have written and translated numerous articles on issues pertaining to Islam. The fourth edition of my book: "Islam for your information" is ready for printing. I have previously hosted my own community radio program for approximately 3 years, I have worked closely with Australia's senior-most spiritual leaders. I have served with a number of Muslim organisations in Australia. I have shared platforms with highly accomplished Muslim and non-Muslim speakers dealing with both religious and political issues. I have published articles in the Sun Herald, The Australian, the Sydney Morning Herald, The Daily Telegraph, The Age, the Canberra Times, Crikey, New Matilda, Online Opinion, Myrightorreply, and the ABC's "the Drum". I have written numerous poems on a multitude of topics, some have been published as individual poems, the romantic collection has been published into a book: http://asenseofplacebloR.com/foravs-of-the-heart-bv-keysar-trad/ Work experience: Chief Executive Officer, Australian International Islamic College, Brisbane Queensland (1 year). This experience included the management of budget and staff, improvements around two campuses, setting a direction and a vision for the college and the pupils, nurturing special talents and improving the standing of the college. Australian Public Service -14 year distinguished career covering areas of management, negotiations, investigations, audits, debt collection and review of objections and appeals. Cost Clerk (6 weeks in 1984) Education: A/Dip in Accounting. Various courses on Islam both locally and overseas. Media training. Management and leadership short courses. Studied one year of law and one year of BSc degree. History of volunteerism (this list is not exhaustive): Commenced circa 1990: Muslims Australia - AFIC, Alwasat newspaper, The Islamic Friendship Association of Australia Inc., Islamic Relief, The Lebanese Moslem Association, The United Muslim Women's Association, The Australian Muslim Times, Australian Islamic Media, Multicultural Eid Festival and Fair, Muslim Aid, Islamic Council of NSW, Australian Institute of Islamic Culture, Australian Islamic Educational Trust, Human Appeal International, Supreme Islamic Council of New South Wales, the Office of the current Mufti, Dr. Ibrahim Abu Mohammad (this was early in his tenure), The Office of the First Grand Mufti of Australia, Sh. Taj Aldin Alhilali.
I was satisfied that Mr Trad's experience, studies and religious life provided him with the necessary expertise to provide opinion evidence of matters concerned with, and related to, the practice of Islam.
However, most of the evidence in Mr Trad's report touching upon the conflict in Syria and the practices of the Islamic State appeared not to be based in any recognised field of study, or on Mr Trad's expertise, but rather resulted from his general interest in the subject matter and what he had read in newspapers and the like. I concluded that he had no relevant expertise that would allow him to express his opinions as an expert. There were a couple of exceptions to that, where there was a significant overlap between his evidence concerning Islam and his evidence concerning Islamic State or caliphate. I allowed that evidence that fell into these exceptions. For example, I allowed his evidence that a particular Hadith "prophesised the advent of ISIS and warned Muslims against them". He translated the particular Hadith as follows: [3] If you see the black banners (flags), hold your ground and do not move your hands or your feet (meaning: don't go near them.) Then a group of [weak] people will emerge, their hearts are hard as iron, they are the people of "the state", they don't honour a pledge or a treaty, they call for truth [though] they are not people of truth. The names are honourifics, their surnames are names of towns, their hair is let loose like the hair of women, until they will dispute amongst themselves and then Allah will give the Truth to whom He wills".
I allowed him to explain the meaning of the Hadith and how it appeared to relate to ISIS.
I also allowed Mr Trad's evidence challenging the narrow approach Dr Shanahan gave to words such as "martyr", "jihad" and "kafir" and to the appropriation by Islamic State of words and imagery that is more generally associated with the practice of Islam. I also allowed some limited evidence that the practice of Islamic State was contrary to the true practice of Islam.
The particulars of these rulings are set out in the transcript of 29 March 2019 at pp 894-895.

R v Taleb

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