Regina (C'Wealth) v Baladjam & Ors [2008] NSWSC 1468 | Case summary

Regina (C'Wealth) v Baladjam & Ors [2008] NSWSC 1468 | Case summary | Zoe

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(c) possessed large amounts of extremist and instructional material. 6 The Crown case is, broadly speaking, a circumstantial one. 7 One of the co-accused is Moustafa Cheikho. In the decision given on 15 April 2008 (R v Baladjam [No 7]) I had to determine whether to exclude certain evidence sought to be tendered against Moustafa Cheikho. At the same time, I had to determine whether, if admitted, the evidence would be admissible against all the accused. 8 The nature of the evidence sought to be led against Moustafa Cheikho was that he had gone to Pakistan in late 2001, and there trained at a Lashkar-e-Taiba camp (LeT). The evidence came essentially from a man named Yong Ki Kwon, who had attended the same training camp in Pakistan. Kwon purported to identify Moustafa Cheikho as one of the trainees at the camp, known to him as Abu Asad. Kwon's evidence suggested that "Abu Asad" had participated in religious training, physical training and firearms training. 9 The Crown had indicated that it proposed to rely on the evidence of Abu Asad's training at the Pakistan camp in two ways. First, it proposed to place the evidence before the jury as evidence against Moustafa Cheikho himself. On this basis, the Crown argued that the fact of LeT training was relevant and admissible as part of the overall circumstantial case against Moustafa Cheikho. If admitted, the Crown proposed to use it as relevant material going to proof of both the physical and fault elements of the offence charged against him in the indictment. These were said to be, first, the fact that he entered into the agreement; secondly, that he did so intentionally; and, thirdly, that, in accordance with s 11.5 of the Criminal Code Act 1995, he had an intention that an offence, or offences, would be committed. Secondly, the Crown proposed to lead the evidence against all the accused on the basis that Abu Asad's training represented "an available resource" to the conspiracy. 10 In my earlier decision, I ruled that the evidence was relevant and admissible against Moustafa Cheikho. Secondly, I ruled that it should not be excluded under ss 135 and 137 of the Evidence Act. I held, however, that it should be admitted against Moustafa Cheikho only, and that it should not be permitted to be used against the other accused. I held that there was no direct evidence (at the time) to suggest that any of the co-accused knew of, or adverted to Moustafa Cheikho's alleged training in Pakistan in 2001. Further, I held that there was no evidence to suggest that Moustafa Cheikho's experience and expertise, such as it may have been, was in fact used or relied upon throughout the period of the alleged conspiracy. 11 The present applications arise directly out of the findings I made on 15 April 2008. The simple proposition, embraced by counsel for Elomar and Hasan, is that the presence at trial of evidence of the training by Moustafa Cheikho in Pakistan in 2001 will raise a real risk of positive injustice to the two men. Consequently, they seek an order for a separate trial. 12 I should make it clear, however, that the application is that Hasan and Elomar be tried jointly with all the other accused, but not with Moustafa Cheikho. In effect, the application is to have Moustafa Cheikho tried separately from all the other accused.

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Suggested qualifications 15 The suggested qualifications to these principles were raised in the oral submissions made by Mr Dalton SC. Senior Counsel referred to the decision of the New South Wales Court of Criminal Appeal in R v Pham ([2004] NSWCCA 190) and, in particular, to the decision of Adams J in that case. The relevant passages appear at paragraphs 39 and 40, in a part of his Honour's judgment where he had been discussing the three Middis principles referred to above (at (d)(i) to (iii)). Adams J wrote: "(39) Two phrases in this summary need some explanation. In ordinary speech, 'immeasurably', usually connotes something of such an enormous size that it is beyond measurement. It is obvious that it was here not used in this sense. I think that his Honour meant 'significant, though incommensurable'. The starting point is that the inadmissible, prejudicial material is completely irrelevant. If, when placed on the scales it would be likely to turn a potential acquittal to a conviction, then this would, I think, amount to 'positive injustice'. Of course the likelihood cannot be measured: If it is real, as distinct from inconsequential, having regard both to its inherent character and the context of the Crown case, then the trial must necessarily embarrass the affected accused. The question then arises whether the risk that the material might be placed by the jury on the scales is such that the trial miscarried. It should also be noted that Hunt J necessarily assumed that clear and emphatic directions would be given to the jury that the inadmissible material must be ignored and the point made by the summary is that, in the posited circumstances, such directions may well be insufficient to avoid a miscarriage and separate trials should be ordered to prevent such an occurrence. (40) I interpolate that, with unfeigned respect, I am doubtful that the weakness of the applicant's case as compared with that of the co-accused against whom it is proposed to tender the prejudicial evidence can be a relevant consideration. Assume that the case against the co-accused was much weaker than the applicant, even with the prejudicial evidence. If there was a significant risk that the prejudicial evidence could be used by the jury adversely to the applicant and that evidence was itself significantly prejudicial, I am unable to see why the mere fact that it was adduced in a weaker co-offender's case is material. Indeed, the opposite would seem to be the case...as it seems to me, with respect, the crucial issue is the potential effect of the inadmissible evidence on the jury's consideration of the applicant's case." 16 Mr Dalton identified the two qualifications from these passages. The first related to the adverb "immeasurably" where it had been used by Hunt J in R v Middis. Adams J preferred "significant, though incommensurable". The Crown does not quarrel with this suggested qualification. It has no bearing on the present debate. 17 The second qualification suggested by Mr Dalton emerged from the discussion by Adams J as to whether the weakness of the applicant's case (as compared to that of a co-accused against whom the prejudicial evidence is to be tendered) is, or is not, a relevant consideration. The Crown took issue with this "qualification", and suggested that, in this regard, the proper test had not been "watered down" by the remarks of Adams J. Mr Dalton suggested that the observations of Adams J had been accepted by Spigelman CJ and Hulme J in R v Pham. I do not think that this is correct. In fact, Hulme J said at para 5: "The appellant submitted, and the Crown did not dispute, that the relevant principles governing the exercise of a trial judge's discretion when asked to grant a separate trial, are set out in R v Middis... and accepted by this Court in R v Baartman ...and R v Georgiou ...there was no discussion about these in either the written or oral submissions in the appeal." 18 The Chief Justice simply said: "Subject to the additional observations of Hulme J, with which I agree, I agree with Adams J and the orders he proposed." 19 I do not think it can be said that the New South Wales Court of Criminal Appeal has substantially qualified, or watered down, the well-established principles often described as the Middis principles. They were applied, for example, by Price J in R v Lu & Anor (2007) NSWSC 1141. They had been applied earlier, for example, in R v Chami; R v Sheikh (2002) NSWCCA. My brief researches have been unable to discover any case in the last three years where the Court of Criminal Appeal has doubted, or been critical, of the Middis principles.

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The argument of the parties - separate trial 26 It is necessary to say something in a little more detail about the arguments presented on behalf of Elomar and Hasan. The starting point is the submission that the evidence of Moustafa Cheikho's training is "highly prejudicial" (I have held in my earlier ruling that it was not unfairly prejudicial). Indeed, Mr Dalton suggested that the presence of this piece of evidence would result in the case against Moustafa Cheikho being "an overwhelming one". (I hasten to add that Mr Button SC, who appears for Moustafa Cheikho, did not agree with this proposition at all.) 27 The essential point made by Mr Dalton, however, was that the jury, no matter what directions they might be given, would conjecture that the other accused must have known of his training, and must have been infected by it in one form or another. The prospect of guilt by association, Mr Dalton argued, was very real. Thus, the case against each of the two men would be transformed into an "overwhelming one" by virtue of a piece of evidence that was not admissible in their cases at all. 28 Mr Dalton gave an example: The Crown case, he said, was one that emphasised these men were training themselves for jihad, albeit in an unsophisticated and rudimentary way. The presence of this piece of evidence at trial would suggest their "training" was being directed by a professional "graduate" of a terrorist training school. 29 Ms Yehia took a variant of the same example to illustrate her concerns. She referred in particular to the Crown case evidence relating to two camping trips in 2005 in rural New South Wales. The first was at Curranyalpa, and the second at Mulga Creek Station southeast of Bourke. Moustafa Cheikho had attended the second of these camping trips. Elomar and Hasan had attended both of them (see R v Baladjam [No 11] for the detail). 30 Ms Yehia pointed out that there was no evidence as to what had happened at those camping trips, beyond the finding of the detritus left behind by the men. The defence would argue that it was a perfectly normal and innocent camping trip engaged in by a group of men enjoying their leisure. Counsel argued, however, that the jury would speculate as to the nature of the events at the camps, because of the presence of Moustafa Cheikho at the second camp. They would speculate that there may have been training, and that the training might be of the same kind Cheikho received at the LeT camp. 31 Ms Yehia argued that the image of a person training at an overseas terrorist camp, one seen frequently on the media, would be a dramatic and graphic image. Particularly as the training alleged against Moustafa Cheikho occurred very shortly after the atrocities of September 11 2001, the image would impermissibly taint the jury's approach to the Crown case against the other men. Both Mr Dalton SC and Ms Yehia suggested directions would be futile in this situation and might, indeed, worsen the speculation.

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Resolution of the issues - general comments 32 I must state at the outset that, despite the forceful arguments of counsel, I do not agree that the matters relied upon are persuasive of a finding that there should be a separate trial. First, I do not think the evidence concerning Moustafa Cheikho's alleged training at a Pakistani LeT camp is as highly prejudicial as has been claimed. It is certainly prejudicial, in a general sense, in the case against Moustafa Cheikho. But, even in the case against him, its value may be curtailed somewhat by a number of matters that are likely to be raised by Mr Button SC on his behalf. For example, there is a real issue as to whether it was he at the camp. Was the man Abu Asad in fact the accused Moustafa Cheikho? Mr Button will argue strongly that the identification itself, and indeed the process, were seriously flawed. In addition, there will be a real issue over the reliability and credibility of the witness Kwon. This man will be painted as something of a "stooge" for the FBI, a person who was acting as a professional witness to secure his own release from custody for serious terrorist offences. 33 An alternative position likely to be taken by Mr Button is that he will, no doubt, make much of the fact that the training, if it were undertaken by his client, occurred a number of years prior to the commencement of the alleged conspiracy. In addition, he will argue that the training was of a limited nature. It certainly did not embrace the making of IEDs designed to bring about the death of civilians in urban areas. There is no evidence that the training had anything to do with Australian conditions. On the contrary, Mr Button will argue that it was concerned with a local issue, namely the expulsion of Indian troops from the Pakistani section of Kashmir. Mr Button will no doubt point out, as well, that, in 2001, LeT was not a proscribed terrorist organisation. All these matters will, in the case against Moustafa Cheikho, be likely to be before the jury. 34 The second reason for my rejecting the submissions made on behalf of Elomar and Hasan is the firm belief I hold that the giving of appropriate directions will be sufficient in the circumstances of this matter to prevent the unwarranted speculation and conjecture painted so colourfully by the submissions of counsel. 35 The fact of Moustafa Cheikho's training in Pakistan, if it were he, is a single isolated piece of evidence. It is isolated both temporally and geographically. It predated the alleged conspiracy by about two and a half years. There will be, as I understand it, no evidence of any adverse behaviour by Moustafa Cheikho after he returned to Australia from overseas up until the commencement of the conspiracy. 36 As I presently understand the evidence, it will not be suggested that there is evidence from which it might be inferred that Moustafa Cheikho was used as some kind of resource during the period of the conspiracy. There are, literally, hundreds of intercepted calls and listening device conversations relied on by the Crown to show extremist thinking and intentions in the words and thoughts of many of the accused. This is especially so in their interaction with one another and with their spiritual advisor. There is, however, not one word in all of these conversations, which on occasions are very candid indeed, where there is any mention of Moustafa Cheikho having trained in Pakistan some three to four years earlier. 37 In all those circumstances, it seems to me that an appropriate set of directions, given both when the evidence is introduced, and again in the charge to the jury, will be both adequate and effective to compartmentalise the piece of evidence, and to isolate it from the cases against the other men.

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Application of the Middis principles 38 The first matter to be considered is the strength of the case against each of the applicants. It may readily be said that the Crown evidence against each of Hasan and Elomar, indeed against all the accused, is very similar in content. Quite apart from the application of the co-conspirators' rule, much of the evidence will reflect common activities, common association and common interests. This will include, for example, the mutual possession of a number of the accused of extremist material. The only possible qualification to these general observations is the case against Mulahalilovic, because of his apparent late arrival on the scene. 39 The case against each of the accused, leaving to one side altogether the training evidence relating to Moustafa Cheikho (which is to be admissible only against him) is a strong one. Indeed, neither Mr Dalton nor Miss Yehia suggested otherwise. The isolated piece of evidence relating to Moustafa Cheikho training's at the LeT camp is of course "different" to the evidence against Hasan and Elomar, but it is not a significantly different case that each of them must face 40 The next matter to consider is whether the evidence concerning Moustafa Cheikho (and admissible only against him) contains material highly prejudicial to Hasan and Elomar, although not admissible against them. The answer to this question must be that it does not. The evidence against Moustafa Cheikho in relation to his training does not relate to the other men at all. It is capable of being viewed as an isolated piece of evidence, occurring in a different country and at a time significantly removed from the commencement of the conspiracy. By its nature, it is easily susceptible to an effective direction to make it clear to the jury that the evidence cannot be used against the others. 41 Is there a real risk that the case against Hasan and Elomar will be made stronger by reason of the evidence of Moustafa Cheikho training at an LeT camp? In my opinion, given that proper directions will be placed before the jury, there is no real risk at all of the kind referred to in the third aspect of the Middis principles. 42 I am comfortably satisfied, having regard to the matters I have mentioned, that the applicant has failed to show that positive injustice would be caused to him in a joint trial that includes Moustafa Cheikho.

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Other cases 43 In deference to the arguments advanced by counsel on behalf of Elomar and Hasan, I will make brief reference to but three cases. There is, in one sense, little value in dwelling on other cases because, in the area of ordering separate trials, so much turns upon the particular facts and circumstances that will arise in an individual case. However, three decisions of those discussed during argument are, I think, instructive. 44 The first is the case of R v Baartman itself. This is a seminal case because a strong Bench, including Gleeson CJ, Powell JA and Smart J, adopted and approved the principles which had been stated by Hunt J in Middis. 45 Three men had been charged with the murder of another man. A joint criminal enterprise was alleged. Two of the accused were together in a house where a listening device had been attached. The police wished to observe the reaction of the two men to an item being run by a television company concerning the killing of the victim. The tape recording of the reaction of the two men to the television program was dramatic in every respect. It powerfully implicated the two men, but some of their remarks plainly referred to the involvement of the third accused against whom the evidence was not admissible. The third man, Baartman, sought a separate trial. 46 The judgment of Gleeson CJ (with whom the other members of the Court agreed) concluded, not surprisingly, that the application of the three Middis principles resulted in an inevitable conclusion that there should be a separate trial. The point to be made from the case is that the dramatic reactions of the two men, captured on the listening device, contained inextricably intertwined remarks that clearly implicated Baartman in the killing, even though the case against him was otherwise a comparatively weak case. 47 The second decision is that of R v Pham, the case I discussed earlier. Again, this involved a joint criminal enterprise involving the execution of a man in which a number of persons, including the applicant for a separate trial, were implicated. There were two witnesses whose evidence was critical in the trial. One of them was one of the members of the joint enterprise who had pleaded guilty and indicated a readiness to give evidence against his accomplices. He was clearly a compromised witness whose reliability was very much in issue. The second witness was not charged with any offence but he was in the motor vehicle when the victim was bundled into it, and driven to the place where he was executed. His reliability was also, to a degree, compromised. Against this background, the problem that arose is succinctly stated by Hulme J in his judgment at paras 7 and 8: "7 However, in this case there is a further factor which to my mind compels the conclusion that the trial miscarried. During the Crown Prosecutor's address, very substantial attention was given to the extent to which the accounts given by the two witnesses to whom I have referred were supported by the statements in the appellant's brother's recorded interview. In substance, it was submitted that the jury could have confidence in the reliability of the evidence of those witnesses because it accorded with, and was supported by, similar evidence in the interview. 8 Whether or not the jury could have put out of its mind, when considering the case against the appellant, the recorded interview, inadmissible against him, there was no practical way they could have assessed the credibility or reliability of the evidence of the two witnesses differently in the case against the appellant than they had or would have done in the case against his brother. Thus, in effect, the interview must have intruded into the case against the appellant when it was not admissible against him. In reaching this conclusion, I do not disregard the Judge's direction to the jury, nor the commonly accepted view, which I share, that juries can and generally do, adhere to the directions they are given. But I do not believe that the jury could, in this case, separately form two assessments of the reliability of each of the Crown's principal witnesses, one assessment using the evidence of the interview and the other, by ignoring it." 48 Thus it will be seen that, in Pham's case, it was the impossible position that resulted from the inadmissible interview intruding, as a matter of necessity, into the applicant's case that led to the finding that a separate trial should have been ordered, and hence that a miscarriage of justice occurred. 49 The third and final case is that of R v Chami: R v Sheikh. The majority of the Court comprised Ipp JA and Bell J. Their Honours ordered that the trial of Sheikh be severed from the indictment, and that he have a separate trial in relation to the offences with which he had been charged. Sheikh was one of five men who had been ordered to stand trial in respect of an indictment containing nineteen counts. Only two of those related to Sheikh. The remaining counts in the indictment related to consecutive but separate incidents involving sexual misconduct of a particularly gross and revolting nature. Ipp JA applied the Middis principles. His Honour said at para 17: "The central point made by Mr Wasilenia is that while Sheikh was involved in the first incident he was not involved in the others. Sheikh has been joined in an indictment which has 19 counts, only two of which are in respect of him. None of the evidence that relates to the other 17 counts bears on Sheikh's guilt or otherwise in respect of the two charges he faces. The trial is likely to last some 12 weeks and involve some 70 witnesses. The charges against Sheikh should not take more than two weeks (and could take less) and will involve far fewer witnesses." 50 His Honour continued at paras 19 and 20: "19 The conduct giving rise to the 19 counts on the indictment can only be described as brutal, cruel, callous and horrifying. The alleged offenders are all, or all but one, from the same ethnic group. The details of the offences are likely to arouse extremely hostile feelings against these persons. The common ethnicity of the offenders could well give rise to generalised feelings of disgust and anger. It is possible that the jury may be influenced by such feelings, brought about by the conduct of all the offenders, when considering their verdict in respect of the counts alleged against Sheikh. 20 It is true that the trial judge would no doubt give very careful and explicit directions warning the jury against allowing any such feelings to affect their judgment. But in the highly charged atmosphere of such a trial where there will be a mass of evidence of these appalling crimes, it may be difficult for a jury, with the best will in the world, to remain entirely objective. In summary, I think that there is a risk of guilt by association." 51 (Sully J dissented from the majority and considered that directions would have been sufficient and adequate, and that positive injustice would not result if a separate trial were denied.) 52 It can be readily seen from Ipp JA's comments that the case he was dealing with concerned a very different situation than the one involved in the present applications. Mr Dalton has argued that "guilt by association" is likely to arise. But I am not satisfied that this is so. In my opinion, the cases against Elomar, Hasan and Moustafa Cheikho are very much the same and have much in common. There is an individual piece of evidence against Moustafa Cheikho which is not admissible against the others. It is an isolated piece of evidence and can easily be the subject of a satisfactory and effective direction. In those circumstances, I am not satisfied that there is any real risk of positive injustice. 53 The applications for separate trials are each refused.

Regina (C'Wealth) v Baladjam & Ors

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