Regina (C'Wealth) v Baladjam & Ors

Resolution of the issues 23 This is the first of the arguments that seeks exclusion of material found during the November 2005 search warrant procedures. It is likely that there will be a number of other similar applications. It is appropriate, therefore, that I take the opportunity, at the outset of this decision, to repeat well-established principles relating to relevance, admissibility, and exclusion of evidence where the real prospect of unfair prejudice may be said to outweigh the level of probative value.

Relevance 24 The first question to be asked when an issue of the present kind arises is whether the evidence is relevant (Smith v The Queen (2001) 206 CLR 650 at 653). Although questions of relevance may raise "nice questions of judgment", no discretion falls to be exercised. Evidence is either relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. The simple fact is that irrelevant evidence may not be received. These propositions are fundamental to the law of evidence and well established. 25 In determining relevance in a criminal trial, it is important and necessary to identify the ultimate issues. These will ordinarily be expressed in terms of the elements of the offence with which the accused stands charged in the light of the defence, if known. Section 55 of the Evidence Act 1995 is in very broad terms. It states that 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 proceedings. Behind these ultimate issues there will often be many issues about facts relevant to facts in issue. (Smith at 654; Papakosmas v The Queen (1999) 196 CLR 297 at 307; 312 and 321-322.) 26 In its terms, s 55 clearly intends that a broad scope be given to the identification of evidence that may be relevant in a criminal trial. In particular, it is the capacity of the evidence to affect rationally, whether directly or indirectly, the assessment of the probability of the existence of a fact in issue. Concepts such as "capacity", "assessment" and "probability" emphasise the width of the approach, although the exercise is curtailed and governed by the dictate that at all times it is to be performed by the application of a "rational" process of thought. The touchstone of the process will relate to the issues at trial, identified by the ingredients of the offence in the light of the defence. The language emphasises that it is the capacity of evidence to rationally have a bearing, even if it be an indirect one, upon the assessment of the probability of the very existence of a fact in issue that is important. Section 56 itself has been described (in Odgers' Uniform Evidence Law, 5th Edition, page 114) as "the key provision regarding the admissibility of evidence" in Chapter 3. The section provides: "56(1) Except as otherwise provided by this Act , evidence that is relevant in a proceeding is admissible in the proceedings. (2) Evidence that is not relevant in the proceeding is not admissible." 27 This section makes it plain that the relevance of evidence is not a question of degree. Evidence is either relevant or it is not. 28 I have set out at paras 18 and 19 above, in the most general of terms, the nature of the Crown case against Mr Hasan and the other accused. The Crown must prove beyond reasonable doubt that Hasan entered into the agreement alleged by the Crown with one or more other persons. (This is the physical element required by the Criminal Code Act 1995). Secondly, the Crown must prove beyond reasonable doubt that Hasan did so intentionally (this is the fault element). Thirdly, the Crown must prove beyond reasonable doubt that Hasan and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement (this reflects the intention required by s 11.5(b) of the Criminal Code Act 1995). Finally, Hasan or at least one other party to the agreement must have committed an overt act pursuant to the agreement (s 11.5(c) of the Criminal Code Act 1995). (The "ingredients" of a terrorist act have been identified and explicated by the Court in earlier decisions). 29 Mr Hasan's defence of "not guilty" to the charge puts in issue each of the essential elements of the offence that I have identified. As a consequence, there are likely to be a considerable number of facts relevant to facts in issue involved in the proof of the Crown case beyond reasonable doubt. In that circumstance, the net cast by s 55 of the Evidence Act 1995 is likely to be very wide indeed. In a theoretical sense, it does not permit (on the issue of relevance) a distinction to be drawn, in this trial, between the possession by an alleged conspirator of a weapon and the possession by another conspirator of an item such as a pistol holster or pistol grips. Nor, having regard to the broad nature of the alleged conspiracy, does it allow (in assessing relevance) the placement of individual conspirators into separate boxes or compartments where, for example, one is said to be involved in the purchase of laboratory equipment and chemicals, and another is said to be involved in obtaining or attempting to obtain weaponry or ammunition. There is likely to be a broad crossover between such activities and functions, particularly where it is alleged that surveillance and counter-surveillance were actively and frequently involved. 30 Further, distinctions of this kind will be markedly eroded at the edges, especially in relation to the establishment of the necessary fault and mental elements required in the establishment of the charge. Again, even further blurring of such distinctions will occur when the broad nature of the agreement charged is sought to be established at a practical level. 31 Let me move from a theoretical consideration of these aspects of the charge and defence to a consideration, in practical terms, of other evidence likely to be led in the Crown case. It is true, as Ms Yehia has said, that the Crown case particularly focuses on Mr Hasan's involvement with the purchase of laboratory equipment and the like. But the Crown case is that Mr Hasan, like the others, has a mindset that relates to his common belief with the others, focusing on their common interpretation of the Muslim faith. The Crown case is that this common belief is deep seated and fundamental in a general sense. It focuses on an acceptance that a significant and legitimate aspect of the fulfilment of their individual religious obligations is the cause of violent jihad. This is a concept, not being merely one of political disagreement, but one which may involve, where necessary, the application of force and violence, including, in certain circumstances, the killing of non-believers, the doing of damage to the property of non-believers, and the infliction of violence to bring about a radical political change through the consequences of, and fear engendered by, terror. 32 According to the Crown case, the common belief of all the alleged conspirators, including Mr Hasan, carried with it the need to be prepared for jihad; to be prepared to accept surveillance and interference from the authorities, and, if necessary, to counter that interference in whatever way would most efficaciously enable the continued fulfilment of the alleged conspiracy. 33 Mr Hasan was, for example, according to the Crown case, involved in two training camps. These camps were at remote locations. They were booked under a false name, and were booked using mobile telephones obtained in a false name. The participants, despite requests to do so, failed to complete the necessary paperwork which would have required the provision of the names and addresses of those camping. Other material in the Crown case shows the interest of a number of the accused in obtaining camping equipment, maps and other items which could be used at remote camping locations. As I have said, each of the camping trips involved weaponry and ammunition. A number of the accused were found to have weapons, ammunition or similar materials in their possession on or about 8 November 2005 when the arrests were made. (Some examples of this are to be found in R v Baladjam [No 9] at paragraphs 20 and 21.) In particular, for present purposes, Baladjam had a pistol holster and Touma was found with one in his possession. The fact that Hasan had a pistol holster and pistol grips, but no pistol, does not obliterate the relevance of the items he in fact possessed. 34 Finally, it might be mentioned that, as the Crown pointed out, one of the documents located commonly on the computers of eight of the accused, including Hasan, was a document headed "mission preparation". It refers to "basics" that will be required for a mission, including a water bottle, compass and, relevantly for the present argument, a pistol holster. 35 In my view, the broad test of relevance in the Evidence Act, coupled with the range of issues involved in the trial in the present matter, makes it quite clear that Hasan's possession of these items is relevant in the trial. I consider that the decisions of Bongiorno J, dealing as they do with a completely different charge, are clearly distinguishable from the present case. I can well understand why it was that Bongiorno J suggested that circular reasoning might be involved in relation to the possession of weaponry in that trial. That is not the case here, however, where possession of the items in question plainly has a relevance to the establishment by the Crown of the physical and fault elements I have identified.

Section 137 of the Evidence Act - Principles of exclusion 36 I turn now to consider s 137 and the suggested exclusion of the evidence on this basis. 37 Ms Yehia has argued that the evidence should be excluded under s 137. This section of the Evidence Act is in the following terms: " [137] Exclusion of Prejudicial Evidence in Criminal Proceedings . In a criminal proceeding, the Court must refuse to admit evidence adduced by the Prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant". 38 Section 137 requires a balancing by the trial judge of the probative value of the evidence against the danger of unfair prejudice to the defendant. If that balancing process results in a finding that the probative value is outweighed by the danger of unfair prejudice, the Court is constrained to refuse to admit the evidence. No element of discretion applies. 39 The section requires the Court to consider, first, the probative value of the evidence in this case of the items found in Hasan's home and car. Secondly, the Court must examine the probative value of the evidence relative to its prejudicial effect to the extent that it could or would be unfair. (See R v Serratore (1999) 48 NSWLR 101; Papakosmas v R; R v Blick (2000) 111 A Crim R 326; R v E M (2003) NSWCCA 374; R v Yates (2002) NSWCCA 520 at (252)). 40 Counsel for the accused has argued that in this matter, the probative value of the evidence, whatever it be, is outweighed by the danger of unfair prejudice to the accused by its admission. The unfair prejudice is said to arise in a number of ways, all of which are detailed in the written and oral submissions. 41 In my view, however, the evidence in the present matter has a reasonable level of probative value. Probative value is defined in the Dictionary to the Evidence Act 1995 as follows: "Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." 42 (It is now accepted that it is not, in general terms, open to a trial judge, in assessing the probative value of any piece of evidence, to take into account an evaluation of its reliability or, for that matter, the credibility of the witness who gave the evidence (R v Shamouil (2006) 66 NSWLR 228 at 47-65; R v Lodhi (2007) NSWCCA 360 at 174-177; R v Mundine (2008) NSWCCA 55 at 33; R v Sood (2007) NSWCCA 214 at 26-43.) 43 This definition of "probative value" (and indeed the terms of s 55 of the Evidence Act 1995 itself) makes it plain that, at least in jurisdictions involving the Evidence Act, relevance is not a question of degree. On the other hand, an assessment of the probative value of any piece of evidence does require an analysis of the capacity of the evidence to affect rationally the assessment of the probability of the existence of a fact in issue. Questions of degree do arise. Here, as I have said, the evidence seems to me to possess a reasonable level of probative value, in the sense postulated by the terms of the Evidence Act and its Dictionary. 44 I am not satisfied, however, that the evidence is likely to be misused by the jury, or that the jury would be likely to give it undue weight. At para 25 of my decision R v Baladjam [No 9] I said: "For the reasons I have given, I conclude that the evidence sought to be relied upon by the Crown is admissible not only against Mr Baladjam, but also against the other accused. It is evidence that has a high probative value and it is consistent with the Crown case generally against all of the accused. I am not satisfied that there is any danger of unfair prejudice if the evidence were to be admitted. Of course, it may be true that the community does not look favourably upon the possession of loaded guns in a public place. But neither does it look any more favourably upon the type of activities that the Crown alleges the co-conspirators were engaged in furtherance of the objects of the conspiracy. Nor, for that matter, does the community look particularly favourably upon acts being carried out in preparation for a terrorist act or acts. As I have said in other decisions, provided appropriate directions are given to a jury so that they understand how evidence may be used and, more importantly, not be used, I do not think that any question of unfair prejudice is likely to arise. That point of view applies equally to the present evidence." 45 Those observations have even greater weight in the present context. Would the jury look especially unfavourably upon Hasan's possession of two gun grips and a holster? I think not. After all, the possession of those items, if that be accepted, is but one circumstantial factor in the Crown case. It is not a particularly alarming factor. As Ms Yehia pointed out, possession of items of those kind is not illegal. It is not dangerous, and it says nothing that is necessarily adverse to the person who possesses them. Indeed, possession of items of that kind may be explained innocently and readily. A direction could be given to the jury, of course, so that they comprehend how the evidence may be used and so that they comprehend, more importantly, how it is not to be used. I do not suggest that such a direction would be necessary in relation to these items, but the capacity to give a direction of that kind is plainly there, if the defence consider it is needed. 46 In any event, I do not think that any question of unfair prejudice is likely to arise. 47 I turn now to the newspaper items. The first article relating to the conviction of Jack Roche is, in my view, relevant. The fact that Mr Hasan has retained the item in his possession, presumably for a period of time, is capable of reflecting on his mindset and on his attitudes that are relevant to the issues in the trial. I do not consider that there is any aspect of unfair prejudice involved in the contents of the article. 48 It is otherwise, however, with the later Telegraph articles dealing with the ASIO raids. As I indicated during argument, I think that they are "over the top" and they should not be presented to the jury in the form in which they appear as exhibits on this application. 49 I would be prepared to allow the Crown to indicate, in bland form, that Mr Hasan had in his possession (or they were found at his home if that be preferred) two articles appearing in the Daily Telegraph, one being dated 23 June 2005 and the second 4 November 2005. The Crown could indicate that the first article related to ASIO undertaking "secret raids" and indicating, in general terms, where the raids took place. So far as the contents of the second article is concerned, the statement could simply refer to the fact that ASIO and the AFP agents had raided a number of homes in Sydney and Melbourne as part of a joint operation in June and that the police were poised for another set of raids as urgent law changes were being rushed through Federal Parliament. The precise terms of any such statement should be agreed between the parties. I will intervene if necessary. 50 In these circumstances, I will simply order that the motion be dismissed. It may be revived before me if agreement is not able to be reached in relation to the two newspaper articles.

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