Regina (C'Wealth) v Baladjam & Ors

Evidence Act 1995 NSW LEGISLATION CITED : Commonwealth Criminal Code Act Crimes Act 1914 (Commonwealth)

R v Benbrika [2007] VSC 560 R v Lodhi 13 April 2006 per Whealy J Legal Handbook for Special Agents Johnson v Johnson (2000) 201 CLR 488 at 492 (11-12) CASES CITED : Ebner v Official Trustee in Bankruptcy [200] 205 CLR 337 at 350 per Gleeson CJ, McHugh, Gummow and Hayne JJ at 363 to 364 per Gaudron J Smits v Roach [2006] 227 CLR 423 Livesy v New South Wales Bar Association (1983) 151 CLR 288 at 294 John Fairfax Publications Pty Limited v Kriss [2007] NSWCA 79 Re JRL ex parte CJL (1986) 161 CLR 342 at 352 per Mason J

Regina (C'Wealth) v Omar BALADJAM [No 6] Regina (C'Wealth) v Khaled CHEIKHO Regina (C'Wealth) v Moustafa CHEIKHO Regina (C'Wealth) v Mohamed Ali ELOMAR PARTIES : Regina (C'Wealth) v Abdul Rakib HASAN Regina (C'Wealth) v Mohammed Omar JAMAL Regina (C'Wealth) v Mirsad MULAHALILOVIC Regina (C'Wealth) v Khaled SHARROUF Regina (C'Wealth) v Mazen TOUMA

FILE NUMBER(S) : SC 2007/2397001; 2007/2395001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; 2007/2396001; 2007/2455001

Ms W. Abraham QC; G Bellew SC C O'Donnell' Ms S McNaughton - Crown M Buscombe SC; R. Pontello - Accused Baladjam C Waterstreet; P. Lange - Accused K Cheikho R Button SC; Mr I Nash - Accused M Cheikho COUNSEL : D Dalton SC; T Ozen - Accused Elomar Ms D. Yehia; Ms S. Beckett - Accused Hasan G Scragg; D Carroll - Accused Jamal G Turnbull SC; A. Djemal - Accused Mulahalilovic W Brewer; M Pickin - Accused Sharrouf S Hanley; P King - Accused Touma

C'Wealth DPP - Crown Greg Walsh & Co - Accused Baladjam Lawyers Corporation Ltd - Accused K Cheikho William O'Brien & Ross Hudson Solicitors - Accused M Cheikho SOLICITORS : Nyman Gibson Stewart - Accused Elomar Legal Aid Commission - Accused Hasan Michael Doughty Solicitors - Accused Jamal Matouk Joyner Lawyers - Accused Sharrouf Lawyers Corporation Ltd - Accused Mulahalilovic Burke & Elphick Lawyers - Accused Touma

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

2007/2397001 - Regina v Omar BALADJAM [No 6] 2007/2395001 - Regina v Khaled CHEIKHO 2007/2398001 - Regina v Moustafa CHEIKHO 2007/2399001 - Regina v Mohamed Ali ELOMAR 2007/2400001 - Regina v Abdul Rakib HASAN 2007/2452001 - Regina v Mohammed Omar JAMAL 2007/2454001 - Regina v Mirsad MULAHALILOVIC 2007/2396001 - Regina v Khaled SHARROUF 2007/2455001 - Regina v Mazen TOUMA

1 HIS HONOUR: On 1 April 2008, I heard argument from senior counsel for Moustafa Cheikho to disqualify myself on the basis of apprehended bias. This was asserted to arise from prejudgment on my part of issues that are likely to arise in this trial in relation to two specific questions. The pre-judgment was said to arise out of two decisions I gave during a series of pre-trial applications in the trial of one Faheem Lodhi. These decisions were given in February and April 2006. 2 The present trial concerns nine men who are each charged with conspiring to do acts in preparation for a terrorist act or acts. I am currently engaged on pre-trial issues in those proceedings. 3 On 31 March 2008, Mr Button SC indicated that he had instructions from his client to ask me to disqualify myself on the basis of the apprehended bias I have identified. The application was stood over until the following day when argument was heard. Although I had given a number of decisions during the last five weeks, I had been, on 31 March 2008, about to embark on the first of the evidentiary pre-trial applications in the present proceedings. This application arose out of the fact that the Crown wished to lead evidence at the trial that one of the nine accused, Moustafa Cheikho, had trained at a Lashkar-e-Taiba (LeT) training camp in Pakistan in September-October 2001. 4 Since that time, LeT has been proscribed as a terrorist organisation by the Australian government. The Crown case is that LeT provided training to a variety of terrorist groups and to individual Islamist extremists wanting to undergo jihadi training. 5 Moustafa Cheikho had filed a motion in November 2007 seeking, for relevant purposes, the determination of three pretrial issues. These were:

(1) an order that the evidence of the alleged activities of Moustafa Cheikho overseas be excluded.

(2) in the alternative, an order that the identification evidence relating to the alleged activities of Mr Cheikho overseas be excluded.

(3) an order that all witnesses against the applicant should give evidence in person. This would include the evidence of overseas witnesses involved in the identification process. 6 The first two matters I have mentioned involved questions as to the relevance in the trial of the overseas training alleged against Moustafa Cheikho; and required an assessment of the relevance and probative/prejudicial value generally of any evidence concerning LeT. 7 Secondly, there was likely to be an issue as to the exclusion of the mode of proof of identification. In this regard Moustafa Cheikho relied upon s 137 of the Evidence Act 1995 NSW. 8 Alternatively, Moustafa Cheikho sought to exclude the evidence of identification under s 138 of the Evidence Act. 9 Finally, and this is said to be most relevant to the present disqualification application, there was likely to be an issue relating to the original interview between an ASIO officer and the identifying witness, Mr Kwon. In turn, this meant that the voir dire would be likely to focus on precisely what happened between the ASIO agent and Kwon at the meeting in November 2003.

The Lodhi Trial 10 Faheem Lodhi had been charged with a number of terrorism offences arising under the Commonwealth Criminal Code Act. One pre-trial issue in his trial related to the evidence proposed to be led by the Crown in that case that a person known as Willie Brigitte had attended training camps conducted by LeT in Pakistan in 2001. This evidence was sought to be led as relevant to an understanding of the nature of the military activities of LeT. Secondly, it was sought to be led to show that the same Mr Kwon I have mentioned earlier had been able to recognise from photographs a person he had trained with at Camp Masada in Pakistan. This person was known to him as Salahudin, but it was the Crown case that Salahudin was in fact the man Willie Brigitte. 11 The pre-trial judgment I gave on 13 April 2006 (R v Faheem Lodhi) related to an application made by senior counsel on behalf of Mr Lodhi that the photo identification of Salahudin by Mr Kwon should be excluded from the trial. There were two bases for this application. The first related to exclusion of the evidence under s 137 of the Evidence Act. The second basis on which exclusion was sought related to s 138 of the Evidence Act, or at least, by analogy, its application to a factual situation which had occurred in America at the time of the identification process. 12 The full facts of the matter are set out in the Lodhi decision I gave on 13 April 2006. There is no need for me to repeat the full details here. 13 Kwon was in an American prison in November 2003. He had agreed, however, to cooperate with the American authorities and had agreed to give evidence in a number of trials relating to the alleged terrorist activities of a number of other persons both in America and elsewhere. Ultimately, as the decision records, Kwon purported to recognise Salahudin from photographs shown to him by an ASIO officer. However, photographs of Willy Brigitte had already been shown by the FBI to Kwon prior to the interview with the ASIO officer. It was these unusual circumstances that led to the application to exclude the evidence under s 138. 14 The particular passage relied upon in this disqualification application appears in para 51 of my decision of 13 April 2006. It is as follows: "In my opinion the essential nature of the preinterview events, if I may call them that, is precisely as indicated by agent Ammerman. The ASIO officer was shortly to conduct an interview to obtain intelligence mainly as to whether Mr Kwon was able to identify (or more accurately recognise) any person he had trained with in 2001 in Pakistan. The American agency was making the witness Kwon available to ASIO for that very purpose. Although agent Ammerman adopted an unusual approach in showing the photographs to the witness prior to the arrival of the ASIO officer, he was, I believe, essentially assisting the Australian government in connection with an intelligence gathering operation. While it is true that the information obtained might have been of some interest to the FBI itself, that was, in my view, not the purpose of the operation in either of its aspects. I do not accept that the preinterview circumstances brought into existence the operation of the guidelines and I do not believe that the FBI agents were investigating the possible involvement of any persons in the photograph in a crime. They were doing no more than assisting a friendly foreign country by providing possible intelligence to that country's intelligence gathering organisation." 15 (The guidelines referred to in this paragraph were the FBI guidelines contained in a document known as the Legal Handbook For Special Agents.) 16 Mr Button's main contention in the disqualification application was that the preliminary issues I have relevantly identified in the present trial will require the Court to examine with care exactly what was in fact happening between the witness Kwon and the ASIO agent. It will require rulings on the nature of what was really happening at the time of the interview and the intentions and activities of all the persons involved. Mr Button argued that a fair-minded lay observer might reasonably apprehend that the Court might not bring an impartial and unprejudiced mind to the resolution of that aspect of the questions to be determined in this pre-trial application. In other words, a fair-minded lay observer might think that the April 2006 judgment indicated prejudgment on the issues affecting the admissibility of the evidence against Moustafa Cheikho in this trial. 17 It is true, of course, that the pre-trial issues I have identified may require an examination of the circumstances surrounding Mr Kwon's alleged identification of Moustafa Cheikho; and that, in turn, will involve issues relating to the then state of mind of the ASIO representative, the FBI agents and perhaps Federal police officers as well. 18 To that extent, there is a degree of similarity between the April 2006 pre-trial issues determined in the Lodhi trial and those arising in the present matter. There are, however, substantial differences and I shall detail these at a later point in these reasons.

The AVL order - a second basis for disqualification 19 On 27 February 2006, during the Lodhi trial, I made an order pursuant to s 15YV(1) of the Crimes Act 1914 (Commonwealth). An application had been made by the Crown pursuant to Part 1AE of the Crimes Act 1914. This provided for the making of a video-link order in proceedings for terrorism and related offences. 20 The section is set out in full in the February 2006 decision I gave, as are the circumstances which ultimately justified the making of the order. The evidence to be taken by video-link included the evidence of Kwon and two FBI Agents. 21 I should mention that the order was made during a pre-trial application and it was limited to that situation. A number of the views expressed in the decision were, as a matter of necessity, preliminary only, since it was not known at that stage whether the defendant would oppose the making of such an order in the trial itself. In addition, there were extant a considerable number of pre-trial rulings which had the capacity to impact upon the extent of the evidence at trial. As things happened, a similar order was made during the trial but the making of that order was not contested by the defendant. Indeed, the Court at the request of Mr Lodhi, made orders that evidence from his family and friends in Pakistan be given by video-link. 22 In the present trial, the Crown, as I understand it, will be making an application that the evidence of certain persons, including the evidence of Mr Kwon, be taken by way of audio visual link. As I have indicated, this will be opposed by Moustafa Cheikho. It is for this reason that Mr Button has argued that a fair-minded lay observer might reasonably apprehend that the decision to be made in the current proceedings "would be informed to some degree by the previous finding" in the Lodhi trial. 23 The Crown's response to these two arguments was that I should not disqualify myself. The Crown argued that apprehended bias had not been demonstrated in relation to either of the two matters relied upon by Mr Button. 24 After hearing argument, I indicated on 1 April 2008 that I would decline to accept the invitation to disqualify myself. These are my reasons. 25 Before stating those reasons, I should indicate that there is no dispute between the parties as to the principles that are to be applied. The test is whether a fair-minded lay observer might reasonably apprehend that the Court might not bring an impartial and unprejudiced mind to the resolution of the question that is to be decided on the relevant preliminary applications. (Johnson v Johnson (2000) 201 CLR 488 at 492 (11-12); Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 350 per Gleeson CJ, McHugh, Gummow and Hayne JJ; at 363 to 364 per Gaudron J; Smits v Roach (2006) 227 CLR 423; Livesy v New South Wales Bar Association (1983) 151 CLR 288 at 294.) 26 Mr Button, however, took me particularly to a passage in Livesy at page 300. This passage is as follows: "It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a Judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact." 27 As I have indicated above, Mr Button suggests that, in particular, the April 2006 Lodhi decision contains, in paragraph 51, the expression of a clear view about a question of fact which is to constitute a live and significant issue in the present pre-trial proceedings. 28 I am unable to agree with this submission. First, the issue in Lodhi was the identification by the witness Kwon of Salahudin ("Willie Brigitte"). Here, the issue is the identification of Moustafa Cheikho as a person who trained at a LeT camp in late 2001. 29 Secondly, Salahudin was a person who was well known to the witness Kwon. They had trained together, lived together, and prayed together over a number of months. Here, as I understand the likely evidence, the man identified as Abu Asad (said by the Crown to be Moustafa Cheikho) was known to the witness Kwon for only a few days and then only relatively peripherally. They did not train in the same group and had no personal contact with one another. 30 Thirdly, the highly unusual situation that revolved around the FBI showing the photographs of Salahudin to Kwon before his interview with the ASIO agent will not, as I understand it, be replicated in the present preliminary application. In other words, on the limited understanding I have of the likely evidence, Kwon was shown a collection of photos of a number of people, one of whom he purported to identify as an Australian man who had trained at the camp with him. There had been no prior showing of this photo to Kwon. The situation is, as a consequence, quite different from the situation relating to the Willy Brigitte identification, or recognition, as it in fact was. 31 Fourthly, the paragraph in the April judgment which is said to constitute prejudgment represents a response to the principal submission made at that time by senior counsel for Lodhi in that pre-trial application. This was a submission that the actions of the FBI agents in showing the photograph to Kwon prior to the ASIO interview constituted a direct or indirect breach of the FBI guidelines and it was therefore, by analogy, an irregularity of the same or similar dimension to an irregularity under s 138 of the Evidence Act. The "findings" appearing in paragraph 51 were no more than a response to that submission. The full context of the surrounding paragraphs show this to be so. 32 Importantly for the fate of the application to disqualify, it is not presently the intention of Mr Button SC to argue that a breach of the FBI guidelines was involved in the photo identification by Kwon of the man Abu Asad. With his usual candour and fairness, Mr Button has made clear that he is at this stage not precisely sure what points will be taken in relation to the circumstances of the Kwon identification of his client. This will depend, in large part, on the answer or answers to subpoenas which have recently been issued to the Federal Police and ASIO. 33 It is clear, however, that one likely argument may be that what happened on the day of identification did so pursuant to some type of prior arrangement between the Federal Police and ASIO. That was not a submission that was made during the Lodhi pre-trial application. If it is to be made in the present matter, it will have to be dealt with, of course, on its own merits. 34 The statements I made in paragraph 51 of the Lodhi April 2006 decision do not prejudge (or for that matter deal with at all) any such submission. Nor do they attempt to evaluate evidence that might be raised of that kind. 35 Finally, on this point, I should make it clear that I made no findings in the April 2006 Lodhi decision as to either the credibility or reliability of Kwon or the FBI Agents. It was not my province to do so (see para 71 of the Lodhi decision) and I expressly refrained from doing so. 36 In relation to the February 2006 decision in which orders were made for the taking of evidence by video-link, Mr Button candidly accepted that the position here could not be said to be in the same position as that asserted in relation to the April 2006 decision. It is plain that any order made under s 15YV of the Crimes Act 1914 (Commonwealth) must be made in terms of the mandatory nature of the section and having regard to the matters that are required to be proved by the legislation. Assuming those matters are proved, an order must be made unless the Court is satisfied that making the order would have a substantial adverse effect on the right of a defendant in the proceedings to receive a fair hearing. 37 Now, I simply have no idea of what matters might be raised by or on behalf of Moustafa Cheikho to suggest that such an order should not be made in the present case. Nothing has been identified to me in the written or oral submissions. When that application comes to be dealt with, I have no doubt that I will be obliged to give earnest consideration to any matter that may be raised either by Moustafa Cheikho or any of the other accused before I could be satisfied that the making of an AVL order would not have a substantial adverse effect on the rights of the defendants to receive a fair hearing. I do not consider that a fair-minded lay observer would conclude from anything contained in the February 2006 Lodhi decision, based as it was on the particular facts circumstances and arguments raised in that matter, that the Court might not bring an impartial and unprejudiced mind to the resolution of the AVL question in the present matter. The fact that any such application might relate to the evidence of witnesses who gave evidence by video-link during the Lodhi pre-trial procedures has, in my view, no bearing on the matter. There was nothing related to the identity of those witnesses that had any bearing on the reasons for the decision being made. 38 I will conclude by making reference to two matters. The first is to Livesy's case itself. While I accept that the passage at page 300 to which Mr Button has drawn my attention is of general application, it needs to be recalled that the factual situation in Livesy was very different from the situation argued in the present matter, especially that based on the April 2006 decision. I will simply refer to the following passage at page 300: "The central issue in the main charge against the appellant was whether the money which Ms Bacon lodged as bail was her own money. Two of the three members of the Court of Appeal, which was hearing the proceedings as a Court at first instance, had already held in a previous case that it plainly was not. Another central issue in the main charge was whether, if the money lodged were not Ms Bacon's, the appellant knew that this was so. Again, two members of the Court had held in the previous case that he clearly did...the question which arises is whether, in these circumstances, either the appellant or a fair-minded observer might have entertained a reasonable apprehension that the views which the two members of the Court of Appeal had formed and expressed in the Bacon case might result in the proceedings against the appellant being affected by bias by reason of prejudgment. With due respect to the members of the Court of Appeal who saw the matter differently, it follows from what we have said that we consider that question must be answered in the affirmative." 39 Livesy was of course, decided twenty-five years ago. More recent judgments of superior Courts have emphasised that, in determining whether the test has been made out, proper regard must be had to the fact that the person who is being observed is a professional Judge, whose training, tradition, and oath or affirmation, require him (or her) to discard the irrelevant, the immaterial and the prejudicial. (Johnson v Johnson at 493; John Fairfax Publications Pty Limited v Kriss (2007) NSWCA 79.) 40 Secondly, as long ago as 1986, the High Court of Australia, conscious of the impact of the Livesy decision, cautioned against an increase in the frequency of applications by litigants that judicial officers should disqualify themselves on account of previous decisions or conduct during the litigation. (Re JRL ex parte CJL (1986) 161 CLR 342 at 352 per Mason J). His Honour said it was important that judicial officers should discharge their duty to sit and should not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that, by seeking the disqualification of a Judge, they might have their case tried by someone thought to be more likely to decide the case in their favour. 41 For these reasons I declined to disqualify myself. **********

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