(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law."
248 The Court of Criminal Appeal has itself considered the operation of s 138 of the Evidence Act in recent times. In R v Camilleri [2007] 68 NSWLR 720 (McClellan CJ at CL, Bell and Howie JJ) reinforced the views expressed by Howie J in R v EM [2003] NSWCCA 374, to the effect that s 138 is concerned with balancing public interests. McClellan CJ at CL (with whom the other members of the Court agreed) said at 727 (31): -
"The fundamental concern of the section is to ensure that, if the law has been breached, or some other impropriety has been involved in obtaining evidence, this is balanced against the public interest in successfully prosecuting alleged offenders. The competing interests are obedience to the law in the gathering of evidence and enforcement of the law in respect of offenders. In R v EM (at 74), Howie J said:
'The discretion under s 138 is similar to that which was described in R v Swaffield (1998) 192 CLR 159 as the public policy discretion at common law. Of course, there is a significant difference between the discretion under s 138 and that at common law: the section requires that the Crown persuade the Court to admit evidence that was improperly or unlawfully obtained. But just as at common law, the public policy discretion was distinct and separate from the unfairness discretion, so the discretion to admit evidence under s 138 is a distinct and separate discretion from that arising under s 90. The two discretions may overlap but they are not synonymous. Section 138 is not, in its terms at least, concerned with the Court ensuring a fair trial for the accused. Certainly that is not a paramount consideration when exercising the discretion. The discretion exercised under s 138(1) seeks to balance two competing public interests, neither of which directly involves securing a fair trial for the accused."
249 Considering the matters stipulated in s 138(3), McClellan CJ at CL said at (35):
"This case is to be distinguished from a situation where evidence is obtained by police in knowing breach of the law or, where they may be reckless as to whether or not it has been lawfully obtained. Where the breach of the law is innocent, and the alleged offence serious there must be powerful countervailing considerations before the evidence should be rejected. The fact that the evidence is of high probative value will weigh in favour of its admission."
250 There are several earlier first instance judgments in the Common Law Division of the Supreme Court that I have also found helpful. The first is that of Adams J in Director Public Prosecutions v Coe [2003] NSWSC 1 May 2003. In that decision, Adams J examined the common law principles, which had preceded the introduction of the section. He also examined the discussion by the Australian Law Reform Commission in its Interim Report on Evidence (No 26) of the issues sought to be addressed by s 138. Although his Honour was principally concerned with the meaning to be given to the word "obtained" in s 138(1), he also gave consideration to the general principles, which underpinned the public policy discretion, reflected both at common law and in the section of the Evidence Act. Adams J referred to a passage in Robinett v Police (2000) 78 SASR 85; 116 A Crim R 492 where Bleby J had cited Lobban (2000) 112 A Crim R 357 per Martin J (with whom Doyle CJ and he agreed). The passage is at 367 where Martin J said: -
"In my opinion however the history of the public policy discretion has been centred upon the discretion being enlivened only when the evidence is obtained by unlawful, improper or unfair conduct on the part of law enforcement authorities. In identifying the rationale for the existence of the discretion, the High Court and other authorities have emphasised the importance of preventing the courts from being 'demeaned' by the use of the 'fruits of the illegality' or being used 'to effectuate the illegal stratagems of law enforcement agents or persons acting on their behalf'. The focus is thus upon bringing the administration of criminal justice into disrepute through the use of the courts in this manner. The courts have not undertaken the role of supervising the conduct of law enforcement authorities generally in circumstances divorced from any attempt by those authorities to use the courts to further the aims of their unlawful, improper or unfair conduct".
251 Adams J thought this statement of the position was "plainly correct". His Honour added however: -
"But I would not interpret this passage as doing anything more than restating the principle that the courts will not allow themselves to be manipulated into condoning crimes or serious improprieties by law enforcement officers or their agents, as is made clear by the concluding sentence."
252 A second decision which I have found particularly helpful is that of Howie J in an interlocutory judgment Regina v Richard Bruce Cornwell Supreme Court, Common Law Division (unreported 20 February 2003). In that case his Honour was considering an application by the accused in that trial to hold that the evidence obtained as a result of the use of a listening device was inadmissible under s 138 of the Evidence Act. The basis of the ruling sought was that the evidence had been obtained in consequence of an impropriety by the investigating officers. The alleged impropriety was said to have been a misstatement in the affidavit in support of the warrant.
253 Howie J held that the evidence had not been obtained as a result of an impropriety and that the particular misstatement, seen in the context of the affidavit as a whole, led him to the view that all that was involved was an inadvertent mistake in an otherwise carefully drawn affidavit. His Honour held that such conduct could not alone be reasonably be regarded as improper, notwithstanding the significance of swearing an affidavit in support of a Listening Device Warrant. His Honour also found that there was no causal connection between the impropriety alleged and the obtaining of the impugned evidence. At para 20, his Honour said: -
"I am of the view that, otherwise than when sub-sections 138(2) or s 139 apply, the court should determine whether the section in engaged having regard to the particular facts and circumstances before it but with due regard to the seriousness of a finding that evidence was obtained improperly or as a consequence of an impropriety and the outcome of such a finding. Not every defect, inadequacy, or failing in an investigation should result in a finding that the section applies merely because it may be considered that, as a result of those defects inadequacies or failings, the investigation was not properly conducted or that the police did not act properly in a particular respect. On the other hand the terms of sub-section 138(3)(e), which sub-section requires the court to take into account whether the impropriety or contravention was deliberate or reckless make it clear that the conduct need not necessarily be wilful or committed in bad faith or as an abuse of power".
254 To these two authorities I would also add the reference to the decisions by Johnson J, R v Petroulias [No 8] 2007 NSWSC 82 and R v Petroulias [No 9] 2007 NSWSC 84. They are to like effect.
255 I shall first consider the relevant matters dealt with under the statute in connection with the hard drive issue.
256 The first matter to be considered relates to the argument advanced on behalf of the Crown that the evidence seized from the hard drives was not "obtained in contravention of an Australian law", or "in consequence of a contravention of an Australian law". The nub of the argument advanced on behalf of the Crown was that the hard drives were taken away in conformity with s 3K(2). This proposition is plainly correct. For this reason, the Crown argued, the evidence was not "obtained" as a consequence of an illegality, even though a later illegality my have occurred. I am unable to accept this argument. As the decision of the Full Court of the Federal Court in Hart's case made clear, the removal of material under s 3K(2) is not itself a seizure under the warrant. That can only happen later after the examination or processing has taken place. In the present matter, the evidential material was "seized" on 11 November 2005. Mr Waterstreet and Mr Lange's submissions are correct, I consider, in relation to their observations concerning the Chief Justice's remarks in R v Haddad & Treglia [2000] 116 A Crim R 312 at (73 - 75). Section 3K (and its various components) clearly form part of an integrated scheme for controlling the situation where items are to be taken away for subsequent testing so that a decision can be made regarding seizure. Indeed, s 3K is part of a larger scheme, including s 3(L), that is reflected in the overall design and purpose of the Cyberspace Act 2001. The phrase "obtained in contravention" is not a term of art, as the Chief Justice observed.
257 In any event, as I have said, the factual situation is that the evidential material was not seized until after the examination had been completed on 11 November 2005. The breaches alleged under this heading all occurred prior to the seizure, not after it as the Crown had contended.
258 I turn now to consider the various matters that are required to be taken into account under s 138(3). The first of these is the probative value of the evidence. In my opinion, the evidence has a very high level of probative value for the Crown case. The accused's hard drives contained extremist material, which is capable of going directly to the accused's state of mind or intention. Secondly, the evidence will be highly important to enable the Crown to rebuff the defence case that I anticipate will be raised. This will be the suggestion that the accused's actions, and his association with the other alleged conspirators, were entirely of an innocent nature and not "extremist" at all. Thirdly, the probative value of this evidence will be especially powerful in relation to the "commonalities" analysis between the nine accused's holdings of material of a common nature. This will be strong evidence in the Crown case to suggest the very existence of the combination alleged by the Crown. It is directly relevant, and importantly so, to the existence, nature and scope of the alleged conspiracy.
259 As to the nature of the charge, it is of the highest seriousness. In Dalley and in Camilleri, the Court of Criminal Appeal has emphasised the importance of this consideration. (Mr Lange's submissions suggested that the views of Simpson J in R v Dalley ought to be afforded considerable weight. This submission ignores the fact that her Honour's decision, although informative and thorough as always, was a minority one).
260 The next matter to consider is the nature of the contraventions. It was not argued that they were deliberate. Nevertheless, substantial criticism was levelled at the police officers concerned. This is not altogether an unfair comment. The police, including New South Wales officers, should have been aware of the procedural strictures of the provisions of the Commonwealth Crimes Act. They were not so aware and this is hardly to their credit. On the other hand, as I have said in this decision and elsewhere, the operation was a massive one, and it is no surprise, although it is regrettable, that there was not a higher level of tuition and training of New South Wales Police Officers. The problems reflected by the breaches were a consequence of the nature of the operation, a lack of understanding, inadvertence and defective administrative control in a situation of urgency.
261 I do bear in mind the Crown's argument that the obligation to give notice in relation to the proposed examination of the removed material is required only "if it is practicable to do so". I cannot accept, however, as I have said earlier, that there would have been any practical difficulty in informing the accused or, for that matter, Mr Houda of the proposed examination on 11 November 2005. If Mr Houda did not wish to attend, that would have been entirely a matter for him. But the simple fact is that he was not given the opportunity and the defendant himself was not notified of the intended process. I think it was more likely that notice was not given through a lack of understanding and inadvertence, rather than as a result of any decision that it would be impracticable to give notice.
262 Whichever way the matter is examined, it cannot be said, I repeat, that the failure to give notice was either deliberate or reckless. I do not think that there was any attempt by the police to deny the accused his rights in this regard. Importantly, there has been no suggestion in the submissions that the integrity of the evidence was affected in any way by the failure of the police to give notice, or arising from the fact that there was no representative of the accused present when the examination took place. If there are to be any technical assaults on the probity of the evidence, the material is in the possession of the accused, and an expert has been retained to examine it.
263 I conclude, as I have said, that the contravention was not in any way deliberate or reckless. I would not classify the breaches as merely technical, but I do not think that they were so serious as to warrant the important evidence being excluded on the trial of this very serious offence.
264 Finally, I would conclude that there is nothing in the other sub-sections of s 138(3) that requires any specific mention. It is true that the evidence could have been obtained without contravention of the laws, had the police been properly tutored in the intricacies of the relatively new legislation. I doubt whether any proceedings have been or will be likely to be taken in relation to the contravention. Perhaps this decision will serve as a useful reminder to the police, both State and Federal, that there needs to be tuition at a high level so that police officers understand the intricacies of this rather complex legislation and, for the future, lift their game accordingly.
265 In my view, having considered all of the relevant matters, it is clear to me that the desirability of admitting the evidence plainly outweighs the undesirability of admitting it, notwithstanding the way in which it was obtained.
266 In his written submission , Mr Lange made a final plea placing emphasis on the remarks of Gummow J in New South Wales v Corbett [2007] 230 CLR 606, 612 at (22). Gummow J had emphasised that one reason for a strict construction of the rules relating to a search warrant was "the beneficial control of the agents of the State because of their awareness that they would be held to conformity with strict rules whenever they conduct a search". This is a fair point for counsel to make, but it needs to be borne in mind that the exercise under s 138 requires an accommodation between two conflicting principles that are strongly pitted against each other. On the one hand, there is the need to ensure that privacy and ownership are not unfairly invaded. On the other hand, there is recognition that where evidence is available, particularly in relation to a very serious offence, it should be used to prosecute those charged with such an offence. The evaluation of which of these principles is to prevail in any given situation is often difficult. The statutory test under s 138 places the matters in the balance, recognising the type of point emphasised by Gummow J in New South Wales v Corbett. In my view, however, the balance in the present matter, for the reasons I have given, ought plainly to be tilted in favour of admitting the evidence.
267 I take the same ultimate view in relation to the failures arising under ss 3K(3)(B) and (3)(C). I would regard the breaches in relation to these sections as generally more of a technical nature. While it is true that the executing officer is required to form the necessary belief on the reasonable grounds referred to in the section, and while it is he who must apply for the extension and give notice of it, it is very clear that a police operation has to be a coordinated one when it is on such a massive scale as was the present one. A police officer, in the position, for example, of D I McDonald, had spent many hours before the commencement of the search getting ready for it. He was required to be on duty for many hours during the search. There would have been other police officers attending a multitude of premises that had to be searched on that evening, all of whom would have found themselves in the same unenviable position. The night was a long one for all concerned, including no doubt the accused and Mr Houda. The coordinating presence of which I have made mention arrived at the necessary decisions to make application for extensions of time where those were necessary. D S Gawel was the one whose task it was, in the ultimate, to make the applications. As I have said, the failure to insist that D I McDonald make these applications was a technical matter and not one that warrants any substantial criticism.
268 The position with Federal Agent Morley is perhaps, to a degree, different. I do not think that Mr Morley adequately dealt with the situation he was confronted with when he spoke to Adam Houda. Even though Mr Houda was dismissive of attending the application, Morley should have insisted on giving him better details than he did about the proposal. I accept, however, that Federal Agent Morley has little recollection of the conversation, beyond the details contained in his diary note. Mr Houda was not called but I rather imagine he would have little recollection of the conversation either. Notice was given to Mr Houda that an application would be made for an extension but it does not seem that he was told when or where the application was to be dealt with. These details, it must be said, did not appear to be of any particular import as he had clearly made up his mind that he would not attend in any event. There was, notwithstanding, a failure to comply satisfactorily with the sub-section. It was no mere technicality, but I do not think it was a failure of any great substance. I accept that the contravention of the section was not deliberate or reckless. It was not motivated by any plan to take an unfair advantage of Mr Houda or his client.
269 In all other respect, I would make the same findings about the probative value of the evidence, the importance of the evidence and the nature of the relevant offence that I referred to in dealings with the earlier breaches. I am satisfied, in terms of s 138, that the evidence should be admitted. The desirability of it being admitted outweighs, to my mind, the undesirability of admitting it, flowing from the nature of the breach involved.
270 I move next to deal with those alleged breaches, which I have rejected. Here, I should make it clear I am only dealing with those where the suggested breach may arise if I am wrong in my interpretation of the relevant sections. That is why I have confined myself to the alleged breaches said to arise under ss 3H and 3P of the Crimes Act 1914.
271 I think it would be merely repetitious if I were to repeat some of my earlier observations about the alleged failure to provide Ms Wisudo with a copy of the search warrant. If she were entitled to have a copy of the warrant, the failure to do so simply arose out of inadvertence and of course, from a lack of knowledge of the requirements of the legislation. As I have said earlier, the legislation is by no means clear. Of course, D S Gawel was unaware of the provisions of the legislation and D I McDonald was, it appears, none too familiar with its detail. Nevertheless, any failure was, as I have stated, really based on both a lack of understanding and inadvertence. It was certainly not deliberate, and I do not regard it as reckless.
272 Some of the evidence seized at Khaled Cheiko's home included the following:
(i) A book entitled "The Layman's Guide to a Electronic Eavesdropping" by Thom Larsen
(ii) Numerous sources of information in relation to electronics and the setting up of electric circuits using batteries
(iii) The keys to Musso motor vehicle ATN.4ON. (This was an abandoned vehicle, registered in the name of another, but in which there were items associating with camping and which implicated a number of the accused)
(iv) Electronic circuit boards wrapped in plastic
(v) Receipts from Harrison's Timber & Hardware for the purchase of two large-scale storage containers. (These items have never been recovered by the police)
(vi) Military instructions for Mujahadeen in Iraq, and introduction to military education, material, which dealt with different stages in military mobilization and operational techniques.
(vii) Training manuals for AK47 weapons
(viii) One Samurai sword
(x) One gas pellet firearm with magazines/silencer
(xi) One machete
(xii) One Colt cap gun
(xiii) A mobile phone connected in a false name
(xiv) There were also the hard drives, the DVD's and CD- Roms
273 These items, in one sense, have differing degrees of probative value. In a circumstantial case such as the present, it is not useful to separate out individual items and to discuss the probative value of each item. Overall, it can be seen that the probative value of the material supports fully the Crown's circumstantial case. I would assess the probative value of the material as quite high. Secondly, it is material that plainly is important in the overall Crown case. Although I have found that there was no breach in each instance, if I be wrong in my interpretations of the section, the breach was not of a serious kind. It was not deliberate and it was not reckless.
274 The same comments may be made about the alleged failure to allow the accused and Ms Wisudo to be present during the search. They were both present outside the house while the forensic procedures were set up. Khaled Cheikho was removed for reasons legitimate to his arrest and detention. Ms Wisudo was given the opportunity to be present during the actual search but declined to accept the invitation. Neither occupant was present at the time the search proper commenced. Ms Wisudo was later treated as the occupier and given the opportunity to scrutinise the list of items seized. The searching of the house was properly videotaped.
275 The desirability of admitting the evidence I have identified, together with the evidential material later seized on the hard drives, clearly outweighs the undesirability of admitting the evidence based on the breaches alleged under ss 3H and 3P of the Crimes Act 1914.
276 I dismiss the Notice of Motion dated 4 July 2008.