R v WE

Supreme Court of NSW|2020-02-05|Before: Bellew J, Centre J

INTRODUCTION

WE (the accused) has pleaded not guilty to an indictment alleging an offence contrary to s 101.6(1) of the Criminal Code 1995 (Cth) in the following terms: Between about 6 October 2016 and 12 October 2016 at Sydney in the State of New South Wales did jointly commit an offence with (HG), namely acts in preparation for, or planning, a terrorist act (or act).
The accused's trial is listed to commence on 12 February 2020.
By notice of motion filed on 11 October 2019, the accused sought a number of orders excluding parts of the evidence upon which the Crown proposes to rely. The notice of motion originally contained 20 prayers for relief. A number of them were abandoned prior to the commencement of the hearing of a voir dire. A number of others were abandoned at the conclusion of the evidence.
The end result is that only one issue remains, which is articulated in paragraph 18 of the motion in the following terms: An order that the report of Dr Rodger Shanahan regarding books seized (sic) 17 April 2019 from Frank Baxter Juvenile Justice Centre be declared inadmissible.
The entirety of the evidentiary material relating to that issue is contained in Exh A which was tendered by the Crown by consent. I have referred to aspects of that evidence below.

THE EVIDENCE

On 30 August 2019, whilst the accused was in custody awaiting trial, a search warrant was executed on the cell that he was occupying at the Frank Baxter Juvenile Justice Centre. As a consequence of the execution of that search warrant, two publications were seized, namely: 1. "Kitab At-Tauhid" by Sheikh-ul-Islam Muhammad bin Abdul-Wahhab; and 2. "The book of Oneness of Allah" by Muhammad Iqbal Kailani. [1]
It should be noted that these items were seized from the accused's cell some 2 years and 10 months after his alleged commission of the offence. It should also be noted that the Crown has made it clear that its reliance on this evidence will be limited to relying on the fact, but not the circumstances, of the accused's possession of the publications.
Following the seizure of the publications, the Crown obtained a report from Dr Rodger Shanahan in relation to aspects of their contents. [2] There is no dispute that Dr Shanahan holds a PhD in Arabic and Islamic studies, and is currently a Research Fellow with the Lowy Institute, an International Policy think tank based in Sydney which deals with contemporary issues of relevance to Australia, and which is divided into thematic areas and geographic programs. [3]
Dr Shanahan has been involved in the field of Arabic and Islamic studies through training, study, experience, academic research and diplomatic work for a period of 30 years. [4] Apart from his PhD which was obtained from Sydney University, he also holds a Master of Arts specialising in Middle Eastern studies and a Master of Arts specialising in International Relations, both of which were obtained from the Australian National University. [5]
Dr Shanahan served as an army officer for a period of more than 26 years, during which he served in Arabic countries. [6] He undertook operational service duties with the United Nations as a military observer in Southern Lebanon and Syria in the mid-1990s. [7] He served as the Assistant Defence Attaché to the Australian Embassy in Saudi Arabia in 2005, in the course of which he had representational responsibility for Iran, Oman, Jordan, Kuwait and Yemen. [8] He also served as the Defence Attaché in Abu Dhabi from 2006 to 2007, during which period he had responsibility for Qatar and Lebanon. [9]
In his current work with the Lowy Institute, Dr Shanahan's particular field of expertise is that of religiously-motivated violence, within which issues of terrorism arise. [10] In that field, he has taught courses on the subjects of sectarianism, malicious networks, terrorism, and political violence. [11] He is the author of a number of books and academic papers on those and related topics, [12] has taught a number of courses on subject matter relating to religiously-motivated violence and terrorism, and has given evidence as an expert in these fields in a number of cases in this Court, as well as in the Supreme Courts of other states of Australia. [13]
Omitting the formal parts, Dr Shanahan's expert report in relation to the two publications seized from the accused's cell is in the following terms: 2. Muhammad lbn Abdul-Wahhab was a conservative 18th century scholar who proposed a focus on the fundamental sources of the Qur'an and hadith, rather than medieval interpretations of Islamic law as the way to regain moral and political strength amongst Muslims in the Arabian Peninsula. Intolerant of other faiths and 'innovations' within Islam, his alliance with Muhammad ibn Saud led to the establishment of the modern Saudi state 3. Kitab al-Tauhid is a conservative religious treatise from lbn Abdul Wahhab. The first part of the translated version of the work features a prologue written by the publishing house that broadly outlines Wahhab's studies and early actions in spreading his interpretation of conservative Islam within parts of modern-day Saudi Arabia. 4. The rest of the book is Wahhab's work where he uses evidence from the Qur'an and a hadith to argue his case regarding the nature of, and adherence to the Oneness of God. It reflects the time and place at which it was written. 5. I offer the following comments on parts of the book that have been indicated to me: a. Page 10, third paragraph. Here the author states that Wahhab sought to teach the inhabitants about the true path of Islam that he believed they had abandoned. In order to do this he was 'prepared to face every torture and atrocities (sic)' and to 'make every effort to fight against the circumstances up to the extent of jihad.' This supports the argument that undertaking armed action Uihad) in pursuit of conservative Islamic principles, is permissible; b. Page 11 last paragraph and page 12 first paragraph. This refers to an instance in which it is alleged that a woman came to Wahhab seeking repentance for adultery and having found that she was of sound mind and had not been coerced regarding the punishment, he ordered that she be killed by stoning. The lack of condemnation by the author of this action implies agreement with it, and the author goes on to claim that because of this and other actions Wahhab's reputation spread; c. Page 13 first paragraph. Here the author recounts the point at which lbn Saud (the progenitor of the Saudi royal family) formed an alliance with Wahhab and pledged to 'mobilize Muslims for jihad [fighting for the cause of Allah)'. Again, this shows undertaking jihad in a positive light; d. Page 14. second and third paragraphs. Here the author recounts how Wahhab planned for jihad against those who he considered were not truly adhering to tawhid, but that they gave their religious fealty to him instead and pledged to 'fight for the cause of Islam until their last'. This reinforces the previous theme in which fighting in the name of religion is seen as a positive thing; e. Page 18 reference to 'not to kill anyone whom Allah has forbidden. except for a just cause (according to Islamic law)'. This is a direct quote from the Qur'an and Wahhab also uses hadith to reinforce the notion of staying on what is considered the right path. The quote used also supports Wahhab's view that Islamic law permits Muslims to kill others so long as it is in accordance with the shari'ah (Islamic law); f. Pages 34. 35 and 36 references to monotheism. The references here to monotheism are also supporting Wahhab's view regarding the primacy of Islam. He says that Muslims should try to proselytize amongst Christians and Jews (People of the Book) and to minimize contact with polytheists 'in order to not become like them even if he does not himself commit shirk (idolatry)'. This indicates an intolerance for nonMuslims and promotes the act of remaining allof from non-Muslims based solely on an interpretation of Islam; g. Pages 39 and 40 comparisons with Christianity and Judaism. Wahhab continues his theme that Christians and Jews are going against God's will by not worshipping Him alone. Citing the Qur'an, he believes that having intermediaries such as rabbis and monks as some type of intermediary with God, Jews and Christians are not worshipping God alone and are therefore sinful; h. Page 41 the reference to 'they will not get out of the fire'. This refers to the fact that disbelievers (non-Muslims) are destined for the fires of hell after death; i. Page 115 last paragraph. This paragraph deals with the concept that is sometimes known as al wala' wal hara' or loyalty and disavowal. It essentially posits that those who love and hate for the sake of God will be viewed positively by God as a result. Of course, what constitutes love and hatred and who God hates is an interpretive issue, but it is also a religious justification for being intolerant of non-Muslims. Islamic State for example addressed this concept in the 11th edition of their online magazine Dabiq when they wrote that 'A Muslim's loyalty is determined, not by his skin color, his tribal affiliation, or his last name, but by his faith. He loves those whom Allah loves and hates those whom Allah hates; and j. Page 180 last paragraph and page 181 first paragraph. This is another using hadith to justify that Muslims fighting against nonbelievers in the cause of God is permissible. It goes on to lay out the religiously-ordained rules of war against unbelievers. This includes offering the enemy the chance to convert to Islam or to eschew fighting them if they agree to pay a poll tax. If they refuse either option then one should 'seek Allah's help and fight them'. 6. The Book of the Oneness of Allah was first published in 1998 by Darussalam Publishers in Saudi Arabia. The copy given to me was published by a company in Lahore, Pakistan and distributed by Maktaba Baitussalam a Saudibased company. The fact that a Saudi company was distributing the text would indicate it is from a conservative Islamic tradition. The book itself is part of a 16-part series Tajheem us Sunnah (Elaborating on/making clear the Sunnah), in which commentary is offered on the foundational principle of Islam, the unity or oneness of God. 7. The text is supportive of the approach of Wahhab above insofar as it advocates an exclusionary, intolerant view of conservative Islam. The author both cites evidence from Islamic religious sources for his views and also mounts arguments (often with scant evidence) using examples from the sub-continent regarding the dangers of polytheism. 8. In critiquing the presence of 'monastic religion' (referring to tombs and shrines to venerate prominent Muslims) for example, he claims that in various monasteries 'virgin girls are dedicated to work' or 'have become centres of obscenity and satisfaction of lust' and that 'During the anniversary ceremonies of these tombs mingling of males and females openly, songs based on love and polytheism are sung'. 9. In his discussions of his view of certain Islamic precepts, he includes the view that 'The government of the day is commanded to wage war against those who do not affirm the Oneness of Allah' (p 125). This reflects the views expressed by Wahhab in sub-para 5 j. above. 10. Elsewhere is the view that polytheists will remain in Hell forever (pp 190-91), that it is forbidden to associate with polytheists in affairs which will influence religion (p 191) and that polytheists are the biggest oppressors (p 186). The concept of opposing 'oppression' and 'oppressors' features regularly in contemporary jihadist discourse. 11. I offer the following comments on parts of the book that have been indicated to me: a. Page 17 last paragraph. Given the text is addressing the oneness of God, the author uses the Qur'an to prove this point and in this instance to criticize Jewish and Christian views regarding the nature of God: 'The Jews call Uzair a son of Allah, and the Christians call Jesus the son of Allah ... (in this) they but imitate what the unbelievers of old used to say. Allah's curse be on them; how they are deluded from the truth.' Because of this he argues that Jews and Christians are unbelievers and should be cursed for worshiping false idols; b. Page 111 second and third paragraphs. Having established his argument that God does not look kindly on polytheists, he advocates waging a holy struggle against polytheism; with one's life, wealth or word (in descending order of merit) by using evidence from the Qur'an to support this view. This view has resonated with Australians convicted of terrorism offences. When speaking online with a US jihadist he was financially supporting for example, the Australian Hassan El Sabsabi said that 'I'm not able to fight with my body ATM (at the moment) akhi (my brother). So I'm going to do my best to fight with my wealth.'5 c. The other books in the series referred to on the rear cover. Without having access to them I am unable to comment on their contents, although from their titles they appear to be a combination of books about Islamic procedural issues (fasting, funerals, prayer) and ideological issues (jihad, hell ['Book of Fire'], paradise). From what the author has written and compiled in the Book of the Oneness of God, it is reasonable to assume that he would have a very conservative, intolerant view when it came to discussing these issues. 12. These two books present a literalist view of Islam and they represent the conservative end of the Salafist ideological spectrum. The authors view the world as consisting of either 'true' Muslims or polytheists. This binary view means that polytheists by their nature are inferior to Muslims because of their rejection of the oneness of God. This in turn allows Muslims to disassociate from them and undertake violence, including jihad, against them.
Dr Shanahan gave oral evidence on the voir dire before me. He explained his view that "The Oneness of Allah" text was supportive of the approach of Wahhab, and explained that Wahhabism was a variation of Salafism, bearing in mind that Salafism is itself a conservative form of Islam. [14]
Dr Shanahan agreed that Wahhabism was connected strongly to the Kingdom of Saudi Arabia, which was not a terrorist state. [15] He was asked: [16] Q. So although the Sauds, the predecessors of the current King, were happy to join forces with Sheikh Ul Islam Muhammad Bin Abdul Wahhab (as said), S H E I K U L I S L A M M U H A M M A D B I N A B D U L W A H H A B, so whilst the King, and previous, his ancestors, were happy to join with this man, they were not joining with someone because of a belief they had in terrorism, were they? A. That's correct.
When asked to explain the nature of the publication "The Oneness of Allah" Dr Shanahan said: [17] It's an interpretation or an exegesis of Islamic legal concepts that the author believes pertains to the concept of "Tawheed" or, you know, "the oneness of God".
Dr Shanahan agreed that it was a "fairly conservative publication". [18]
Dr Shanahan was then taken to those parts of his report in respect of which he had made specific comment in relation to aspects of this publication: [19] Q. In the first comment, page 10, third paragraph, you claim that: "Wahhab sought to teach the inhabitants about the true path of Islam that he believed they had abandoned. In order to do this he was prepared to face every torture and atrocity to make every effort to fight against the circumstances up to the extent of jihad." And you say your view is that this supports undertaking the war‑like form of jihad; is that right? A. Sorry, what form of jihad? Q. The war‑like form? A. That's correct. Q. Then you refer to someone who confessed to him that she committed adultery, having sought repentance, and he ordered that she be stoned. So what's the significance of this? A. Say again, sorry? Q. What is the significance of this rather gruesome story? A. What do you mean by the "significance"? Q. Well, if you're looking at this text to determine what Wahhabism stands for, what does this say to you? A. This supports the literalist interpretation of Islamic law.

Submissions of the accused

Accepting that the Crown's tender is limited to the fact of the accused's possession of the publication, senior counsel for the accused submitted that: 1. the evidence was not relevant having regard to s 55 of the Evidence Act 1995 (NSW) ("the Act"); 2. if relevant, the evidence should be excluded pursuant to s 137 of the Act.
Both of these submissions went substantially beyond paragraph 18 of the notice of motion, the terms of which were restricted to an objection to the evidence of Dr Shanahan. The submissions raised fundamental issues of admissibility and exclusion of the evidence. Such issues were reflected in paragraph 10 of notice of motion which I was informed had been abandoned. However, the Crown accepted that it was not prejudiced by this change of position.
In terms of relevance, senior counsel for the accused submitted that properly understood, both of the publications were theological and conservative in nature and did not, in any sense, demonstrate anything about the accused's state of mind, or any adherence on his part to an extremist ideology. Senior counsel submitted, in particular, that the material contained in the publications was of an entirely different nature than that which was found on the various electronic devices linked to the accused, and which would be relied upon by the Crown to support the conclusion that the accused adhered to an extremist ideology.
Senior counsel also pointed to the fact that the accused was in possession of the two publications a significant period of time after the commission of the alleged offence. Whilst accepting that he would put to the jury, on behalf of the accused, that it was open to conclude that other persons had access to the electronic devices upon which extremist material had been found, senior counsel rejected the proposition that these two publications were relevant because they established a continuum of interest, on the part of the accused, in such material. Senior counsel submitted that such proposition was untenable, for the simple reason that the nature of these two publications was completely different to the nature of the material which was found on the devices connected to the accused.
In the event that I were to conclude that the evidence was relevant and should be admitted, senior counsel submitted that the opinions of Dr Shanahan should nevertheless be excluded. Whilst senior counsel did not take issue with Dr Shanahan's training, study and experience as I have outlined it, he submitted that whatever expertise Dr Shanahan may have did not qualify him to express the opinions about the publications that he had expressed.
Senior counsel further submitted that Dr Shanahan was not a theologian, and that he was unable to say anything about the books being connected with (for example) Islamic State, or any other extremist organisation.

Submissions of the Crown

In terms of the accused's objection based on relevance, the Crown submitted that the evidence demonstrated a continuum of interest on the part of the accused in extremist literature. The Crown pointed out that the remaining evidence of the accused's possession of extremist literature was limited in time, and that although the two publications were found in the accused's possession a considerable time after his alleged commission of the offence, such possession remained a relevant consideration for the jury, and would address the submission that the jury could not be satisfied that it was the accused, as opposed to someone else, who had access to the devices that contained the remaining extremist material.
It was further submitted that the two publications demonstrated an interest, on the part of the accused, in extremist themes, including that of martyrdom.
Submitting that the evidence was relevant in that sense, the Crown further submitted that its probative value was significant, and that its admission would not result in any unfair prejudice to the accused. The Crown submitted, in particular, that there was no indication that the jury would misuse the evidence by giving it more weight than it deserved.
In terms of the evidence of Dr Shanahan, the Crown submitted that Dr Shanahan's expertise was properly categorised as a field of specialised knowledge derived from his studies, research and experience in the field of history and political science. The Crown submitted that this was the type of specialised knowledge which was contemplated by s 79 of the Act. [20]
The Crown submitted that the opinions expressed by Dr Shanahan concerning these publications clearly met the requirements of s 79. It was submitted that Dr Shanahan, having examined the contents of the publications, had expressed opinions based on his expertise, and which were derived from his academic study and field research. It was submitted that the evidence to be given by Dr Shanahan in these respects was no different to that which was to be given by him in relation to the other material found in the accused's possession, to which there was no objection.
In advancing these submissions, the Crown made it clear that whilst it was proposing to tender the entirety of the two publications, it would be emphasising those particular passages upon which Dr Shanahan had expressed his opinions.

CONSIDERATION

It is appropriate to firstly consider the question of whether the evidence is relevant. Relevance of evidence is determined by s 55 of the Act which is in the following terms: 55 Relevant evidence (1) The 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. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence.
Relevance is a test of logical connection, although it will be evident that the test imposed by s 55 is a relatively undemanding one. In order to be relevant, there must exist the possibility that the evidence may have some rational effect on the assessment of the probability of a fact in issue. [21] That effect may be direct or indirect. [22]
For a number of reasons, and notwithstanding the width of s 55 of the Act, I am not satisfied that the evidence is relevant.
The relevant fact in issue is whether the accused subscribed to what might be described as an extremist ideology. In my opinion, when the two publications are viewed as a whole, they are not properly regarded as extremist in nature. They are essentially religious texts, both of which Dr Shanahan described as conservative. Taken in isolation, the specific passages referred to by Dr Shanahan in his report might be viewed as extreme in one sense. However, those passages are included in the respective publications against a background of other material which could not be said, in any way, to fall within the ambit of extremism.
For example, "Kitab At-Tauhid" covers subject matter under headings such as: 1. there is nothing deserving of worship in truth except Allah; [23] 2. an explanation of Tauhid and the testimony; [24] 3. what the Lord has said; [25] 4. the intercession; [26] and 5. Allah guides whom he wills. [27]
The publication entitled "The book of Oneness of Allah" contains subject matter under headings which include: 1. Oneness in being of Allah; [28] 2. Oneness of worship; [29] 3. preservation of honour and self-respect; [30] 4. spiritual serenity; [31] and 5. kinds of polytheism. [32]
In these circumstances, the two publications do not, in my view, have the capacity to bear upon the assessment of the identified fact in issue.
It is also of some significance, in my view, that the accused's possession of these publications occurred a significant period after his alleged commission of the offence. I am unable to accept the Crown's attempt to address this issue by submitting that the accused's possession of the publications is relevant because it establishes a continuum of interest in extremist literature. This is for the simple reason that in my view, neither publication is properly categorised as extremist. Neither bears any similarity whatsoever to the other material upon which the Crown will rely in this respect [33] .
I should also say that even if I had come to the view that the evidence was relevant, I would have excluded it pursuant to s 137 of the Act. It will be evident from what I have already said that the passages to which Dr Shanahan has referred, and which would have been the subject of emphasis by the Crown if the evidence had been admitted, form a very small part of the totality of what is otherwise generally conservative religious material. Concentrating upon them has the capacity to result in a somewhat misleading assessment of each publication as a whole. I should make it clear that in making those observations, I do not intend, in any way, to be critical of Dr Shanahan. It is evident that in compiling his report, and in highlighting those specific passages, Dr Shanahan was doing no more than providing the opinion that was sought from him. However, it remains the case that if the evidence were admitted, there would be a real risk that the jury would ascribe substantially more weight to it than was warranted. Those circumstances would engage the provisions of s 137 of the Act.
Having reached these conclusions it is unnecessary for me to consider the admissibility of Dr Shanahan's opinions.
For all of these reasons, the evidence of the accused's possession of the two publications will be excluded.

Endnotes

Affidavit of Stephen Victor at Tab 37 of Exh A; Paras 10; 12.
At Tab 39 of Exh A.
Evidence of Dr Shanahan at the accused's previous trial at T746.25 - T746.32.
T746.34 - T746.36.
T746.43 - T747.2.
T747.5 - T747.11.
T747.13 - T747.23.
T747.25 - T747.34
T747.36 - T747.41.
T747.48 - T747.50.
T748.2 - T748.5.
T748.7 - T748.12.
T748.14 - T748.20.
T54.32-T54.38.
T55.7 - T55.19.
T55.21 - T55.27.
T56.46 - T56.48.
T56.50 - T57.1.
T57.20 - T57.44.
See for example R v Vinayagamoorthy and ors (2008) 238 FLR 117; [2008] VSC 599 at [23]-[24].
Nye v NSW [2002] NSWSC 1270.
Zaknic Pty v Svelte Corporation Pty Limited (1995) 61 FCR 171; R v Privett [2001] NSWCCA 518.
Chapter 5.
Chapter 6.
Chapter 16.
Chapter 17.
Chapter 18.
Chapter 1.1.
Chapter 1.2.
Chapter 2.2.
Chapter 2.4.
Supplement 1.6.
See Crown case statement at [6]-[8].

Amendments 09 April 2020 - Amendment to quoted text in paragraph [6]. 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: 09 April 2020

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