Does the Kwon identification reveal an impropriety in the manner in which ASIO conducted the photo identification process?
26 The simple answer to this question is that s 138 is not engaged at all for the reasons I have already indicated. In any event, I am not persuaded that what happened on 26 November 2003 can be said to be "improper" in a more general sense. In the process of gathering intelligence, there was no obligation on the part of ASIO to adopt the procedures required to be utilised by police officers when attempting to obtain identification evidence in relation to a person having committed a crime.
27 In the first place, although Mr Springer and his agency would have been not unaware of the criminal nature generally of terrorist activities, the real purpose of the interview with Kwon was to obtain information from him as to the identity of persons who had trained with him at the LeT camp. In addition, intelligence was sought to be gathered as to the nature of the training at that camp.
28 Secondly, as I have mentioned, the identification of Moustafa Cheikho as Abu Asad did not involve the identification of the accused as a person committing the crime with which he is charged in the present indictment. That, of course, is not an end to the matter, but it is a distinction that may be brought to bear on the issue. The fact of Moustafa Cheikho's training at the LeT camp, if the identification be accepted, is but one piece of circumstantial evidence in the Crown case alleging the existence of an agreement involving the accused and others to do acts in preparation for a terrorist act or acts. That agreement is said, on the Crown case, to have come into existence about mid 2004 and to have continued until the arrest of the accused in November 2005. The fact of Moustafa Cheikho's training in Pakistan in 2001 is but part of the Crown circumstantial case although, in accordance with the decision I gave on 15 April 2008, it is not to be admitted against the other men accused of the conspiracy.
29 I do not consider that the fact that the material was obtained during an intelligence gathering purpose should lead to its being rejected on the basis that, as it turns out, the material is now to be tendered as evidence in a criminal trial. No authority was cited to me to justify such an approach and I reject it.
30 Mr Button argued, as I pointed out earlier, that Springer ought to have consulted the AFP before he conducted the interview so as to enable ASIO to comply with police procedures. But this argument assumes that the AFP and ASIO were jointly engaged in investigation of a criminal activity. This was not the case. The very fact that Springer did not consult the AFP is cogent proof of the fact that no such arrangement existed between the two agencies. I agree with the Crown that the fact that this evidence is now to be tendered in proof of an offence committed many months after the interview with Kwon does not transform or alter the character of the process undertaken by Springer on behalf of ASIO. In addition, as I discuss in the "confidential" judgment, the ASIO selection of photos to be shown reinforces that the interview was one for intelligence gathering purposes, not for criminal investigation purposes.
31 I also agree that section 3ZO of the Crimes Act had no application to this interview. Not only was Springer not a constable, but it is clear that it was not his function to identify a "suspect" within the meaning of the sections in the Commonwealth Crimes Act. Of course, Mr Button did not submit that section 3ZO had any direct application. But it was at least implied in the written submissions that, by analogy, a failure to comply with those types of stipulations (reliance being placed on matters discussed in R v Alexander (1991) 45 CLR 395) might result in Springer's conduct being regarded as improper and recklessly so.
32 The Crown argued, in any event, that the principles in Alexander's case had little application to the present matter. The issue in that case was the identification of a person not previously known to the witness where an offender had been seen by the witness in connection with the commission of a crime. By way of contrast, the Crown argued here that this was not a case of identification. It was rather a case of recognition of a person known to Kwon. The recognition was provided to Springer in his capacity as a gatherer of intelligence for ASIO, and did not relate to the commission of a crime, certainly not the crime with which Moustafa Cheikho is presently charged.
33 I do not accept that the tender of the subject body of evidence is or will be inadmissible in the present trial. In my opinion, provided appropriate directions are given that reflect the usual dangers of identification evidence generally and the particular problems that might be said to exist in the present matter, the evidence is admissible. The Alexander principles still have application, not to exclude the evidence but to give content to the directions that may be necessary.
34 It is not necessary for me to label conclusively at this stage whether the evidence be identification evidence or recognition evidence. I am inclined to the view that it was a recognition, albeit one made against the background of a comparatively short period of association. In either case, it will be necessary to give appropriate directions to the jury, although there is no need to identify the precise scope of those directions at this stage.
35 The final matter argued by Mr Button related to his assertion that it would be, in a general sense, improper to allow the Crown to tender the evidence at trial in circumstances where the Crown had determined not to tender evidence of 16 December 2003 AFP photo board identification process. Senior Counsel's argument appeared to be this: it was argued that the process by which Mr Springer obtained evidence that identified Moustafa Cheikho as the man Kwon had trained with in the LeT camp "tainted" or "infected" the later AFP procedure. In other words, when the AFP showed a proper picture board to Kwon, the displacement effect would have been so great (in the light of his earlier identification) that the picture board process would have had no or little probative value.
36 Mr Button suggested that there was something improper about the Crown endeavouring to produce evidence of the Springer/Kwon identification in circumstances where it could no longer rely upon the tainted AFP procedure. The Crown did not accept that the AFP procedure was "tainted" in any real sense. It accepted, no doubt, that the forensic value of the AFP process might be lessened by the sequence of events which had occurred. But, in any event, the Crown said it was perfectly proper to lead evidence of the Kwon/Springer identification because that was the first time the identification occurred. The fact that the evidence was obtained during an intelligence gathering process had no bearing on the decision to lead that evidence in relation to the commission of a later offence.
37 It seems clear to me that, in one sense, the Crown has made a tactical forensic decision. It has decided to go with the Kwon-Springer identification with all of the faults that process might exhibit. Of course, the Crown does not say that the process was particularly flawed. It accepts, however, that directions will have to be given pointing out that the selection of photos was not an ideal one. On the other hand, the Crown will no doubt argue before the jury that there are reasons why the jury might, despite warnings and directions, ultimately accept the identification as reliable. From the point of view of forensic tactics, the later identification, involving the AFP officers, does pose greater problems for the Crown. I accept that is so. I fail to see, however, that there is anything improper in relation to the decision made by the Crown to lead evidence of the first identification. Once again, provided appropriate directions are given, in my view the evidence should not be rejected for any of the reasons advanced by Mr Button.
38 For these reasons, I am perfectly satisfied that s 138 has not been triggered by the presence of an impropriety, a contravention of an Australian law or that the evidence was obtained in consequence of an impropriety. Moreover, I am not satisfied that, for any other reasons, it would be improper to admit the evidence.
39 Lest I be wrong about those matters, I turn to sub-section (3). In my view, the evidence sought to be adduced has a reasonably high probative value. That was the decision I reached in the decision given on 15 April 2008 (at para 69) and I see no reason to modify that view. Issues such as any alleged weakness in the photographic identification process itself and weakness attaching to the reliability of the evidence of Kwon may appropriately be the subject of directions.
40 Secondly, the evidence is plainly of importance in the proceedings. It goes directly to facts in issue and to rebut the likely defence case.
41 Thirdly, the offence is a serious one.
42 Fourthly, while I have found that there was no impropriety, any impropriety, if one existed, is of a minor kind. Mr Springer had no knowledge of proper police procedures and, in view of the fact that he was, in his mind, simply gathering intelligence, there was no need for him to have had such knowledge. Similarly, there was no need for him to consult the AFP on the subject, since he was not at that time jointly engaged in any investigative process with the AFP. If I am wrong, and there be thought to be some impropriety in what happened, I do not consider that it was either deliberate or for that matter reckless. It may, at worst, have been naïve or careless.
43 Finally, I have considered the matters in sub-section (3)(f), (g) and (h). I do not consider that any of those matters are such as to require me to find that the evidence should not be admitted. On any view of it, I consider that the desirability of admitting the evidence outweighs the undesirability of so doing.