Regina (C'Wealth) v Elomar & Ors [2008] NSWSC 1442 | Case summary

1 HIS HONOUR: The Crown has prepared a document which it proposes to give to the jury. I marked it in its original form as MFI 1, and an amended form has now been marked as MFI 4. This is the first matter argued before me today. 2 It is, in essence, a roadmap or a chronology, if you like, of the facts to be alleged and sought to be proved by the Crown. It has been prepared in such a way that it will enable the jury to use the document as an aid in relation to an understanding of the unfolding of the evidence. The document does have on it a column which, I suppose, might enable jurors to make any comment in relation to evidence that is received on the particular point, but its main utility is that when a witness is called, or a document or other item is tendered, the jury can be directed to the entry on the roadmap so they can then know where the evidence is that is alleged to fit into the Crown case. As I understand, the document is to be consistent with the Crown opening. 3 In my opinion, in a trial of this factual complexity and length, a roadmap of the kind represented by MFI 4 is really essential. Without such assistance the jury would be likely to become completely lost. Without some guidepost or direction of this kind, the jury would be likely to simply flounder in a sea of uncertainty. They need a sense of direction, and this document is designed to achieve just that result. 4 Mr Button of senior counsel had originally argued that the jury might give too much weight to the document and that there would be a temptation to use it as a template of agreed facts or facts proved simply by assertion. In the light, however, of a sensible Crown amendment to the document (see top of page 1 of MFI 4), Mr Button has not pressed his objection. Mr Scragg took a similar position and in the end his further suggestion is also to be adopted. 5 Mr Waterstreet for Khaled Cheikho, however, has maintained his overall objection to the document. He has argued that the roadmap will distract the jury from the unfolding of the evidence. He submitted that it may operate as something of a "tick list". Secondly, counsel argued that the document is tantamount to giving the jury a schedule of the overt acts relied upon by the Crown which, he suggested, would be impermissible at this stage. Thirdly, it was argued the document does not make it clear what is admissible and, importantly, against whom it may be admissible. 6 As to these last points, it may be simply observed that the document is not, nor does it purport to be, a schedule of overt acts. It is no more than a roadmap outlining in chronological sequence the factual allegations the Crown suggests will arise from the evidence to be called. Secondly, it is not designed to address issues of admissibility, although the Crown will make it clear, as I understand it, that items 1 to 3 in MFI 4 are only sought to be, if proved, admissible against Moustafa Cheikho. 7 My overall response to Mr Waterstreet's submission in relation to MFI 4 is that counsel seems to be arguing from a template that has been well and truly superseded by contemporary trial practice. Inadvertently or otherwise, the submission appears to countenance the proposition that it is appropriate for the jury to be allowed, as it were, to stumble along amidst a morass of uncertainty in this rather factually complicated and detailed trial. In my view, however, that situation should not be allowed to happen. 8 The roadmap may be distributed to the jury as the Crown wishes to do so, and the document should be amended in a way that incorporates Mr Scragg's further suggestion as to "headings" on each page. 9 The second matter argued relates to draft directions to be given to the Jury. 10 It is customary for the Trial Judge to make preliminary remarks to the jury before the Crown opening. I distributed to the parties some little time ago a draft of some brief general directions I propose to give the jury during the course of these preliminary remarks. The document I distributed related to one section only of the introductory remarks. It related to a preliminary direction on legal issues likely to arise in the trial. 11 Essentially, the directions identified very briefly the ingredients of the offence contained in the indictment and focused on one aspect, namely, the definition of "a terrorist act" as appearing in the Commonwealth Code Act. The purpose of the direction was to direct the jury's collective mind to the nature of a terrorist act as it is defined in the legislation. 12 The point of importance, as I saw it, was to stress right from the outset that unless the Crown can prove beyond reasonable doubt that each accused was a participant in an agreement to do acts in preparation for a terrorist act or acts, and that the agreement was of that precise kind and no other, the Crown case must fail. The importance of the direction, consequently, was to explain what is a terrorist act and, significantly, what is not a terrorist act. I marked the original form of the extract from the introductory oral remarks as MFI 2. I have since revised it as a consequence of written submissions received from a number of the parties. The revised document is marked MFI 5 and the definition/written direction is MFI 6. 13 Ms Yehia for Mr Hasan had originally taken three exceptions to MFI 2. First, there was objection to the reference in a hypothetical example to a bombing in the Westfield Plaza at Parramatta. I have altered that reference to a more neutral location, but at the same time have preserved the same point intended to be made by the original example. Secondly, there was an objection to a reference to a further example, namely, the infamous Bali bombings. 14 For my part, I do not see any real problem with this example. It is well removed from any factual allegation made in this case. It is, I accept, an emotional issue and the jury members have been, and undoubtedly will be, consistently reminded to approach the evidence and the issues of this trial without bias. It is, however, as Ms Yehia said, a topical issue and, particularly in the days leading up to the Crown opening, it is likely to remain a topical issue. The jury will have to live with a number of topical issues throughout the duration of this lengthy trial. It is not to be supposed that the horrors of terrorist activity in Iraq or Afghanistan, Indonesia, Pakistan and other places will conveniently stop during this trial. We live in a real world. The jurors live in a real world. It is a world filled with daily examples of man's inhumanity to man, and to woman, for that matter. 15 The Bali example seemed to me to be a useful one to make the point I wanted to make in the direction. But I have heard further argument on it today, and I take the view that it is not an essential example. It was merely selected for convenience's sake. If the parties are unhappy about it in these opening remarks, then I am content to remove it and replace it with a reference to a more neutral terrorist activity, at least in a geographical and temporal sense. It has been suggested that I might replace it by a reference to terrorist activity by the Irish Republican Army, and I will do so. 16 Mr Scragg also raised a concern about another example I used, namely reference to the Madrid bombings, and I am content to remove that as well, in view of the submissions made today. 17 The third point originally made by Ms Yehia related to the part of the direction that briefly sought to explain the nature of a circumstantial case. I chose to use a simile to describe a circumstantial case, and the approach to such a case, by adopting the analogy of a jigsaw puzzle or a mosaic. Miss Yehia was concerned that the analogy might be misleading because it could convey the notion that a markedly incomplete picture might be sufficient to satisfy the onus of proof placed upon the Crown. 18 Once again, for my part, I think the analogy is a useful one for a jury to understand. It is, of course, only an analogy. It is no substitute for the appropriate and accepted standard set of directions in relation to circumstantial evidence in a circumstantial case. 19 I do not propose to discard the analogy. I have, however, endeavoured to strengthen the wording to reflect the point made by Ms Yehia, and I have also added in the passage occurring in R v Plomp (1963) 10 CLR 234 at 252, which was referred to by counsel in the written submissions. 20 Overall, I think the preliminary direction as to the nature of the circumstantial case and the matters that have to be proved by the Crown in discharge of the onus of proof, viewed as a whole, is adequate to address the issue. I have, however, modified the last section now to accord with further suggestions raised with me today. Those modifications will appear, if I am otherwise satisfied that the directions should be given. 21 Mr Button for Moustafa Cheikho had a different concern in his original submissions. His client is alleged to have trained with Lashkar-e-Taiba in Pakistan in 2001. This is a fact very much in issue in the trial. The Crown case will rely, in part, on identification or recognition evidence to be given by a witness who himself trained in an LeT camp in 2001. 22 Mr Button argued that this fact may be a fact that itself must be proved beyond reasonable doubt. It would not, in terms of its proof, be treated as merely a circumstantial fact, counsel argued. Mr Button accepted, of course, if it were proved against his client, it might then be viewed appropriately as a circumstantial matter in the case against him, but its proof, Senior Counsel argued, was or might be a matter to be proved to a higher standard than as was the case with the broad range of facts involved in the Crown's circumstantial case. 23 I have not heard adequate argument on this matter during the various pre-trial arguments to make a final determination about the standard of proof necessary on the identification point. For that reason, I will not make a final decision about it at this stage. 24 Assuming the correctness of the point, however, for the sake of the argument, I concluded that the draft direction did need an adjustment. I have made that adjustment in the revised direction, MFI 4, and I understand Mr Button is content with that position, for the time being. 25 The third and final submission came from Messrs Waterstreet and Lange, who represent Khaled Cheikho. Surprisingly, this submission was that no written or oral direction of the kind represented in MFI's 1 and 4 should be given at all at this stage. I say "surprisingly" because it seemed to me to be inherent in this submission that counsel regarded it as appropriate that the jury should be launched upon this lengthy and factually detailed trial without any proper understanding of the nature of the charge, and of the issues likely to arise. Such an approach stands in stark contrast to any measured attempt to help the jury to understand the issues. Be that as it may, I am perfectly satisfied that this submission is without merit and is contrary to principle. 26 First, there is a statutory power to give written directions to a jury (see s 55B of the Jury Act 1977). The section is not confined or limited in any temporal sense. Mr Waterstreet suggested that it should be limited, because of its context. Counsel was unable, however, to point to any contextual matter that supported such a proposition. 27 Section 55B, indeed, appears in Pt 8, which deals with proceedings upon trial. A number of the sections in Pt 8 make it clear that the express powers conferred upon a trial Judge arising under this part of the Act may be exercised at any stage of the trial. 28 It is sufficient, I think, to point to s 54(1)(a), which permits, unless the Court otherwise orders, the jury to separate at any time before they retire to consider their verdict. That section obviously has operation from the very first day of the trial. 29 If it is not too trivial to mention, s 55, which appears in the same Part, enables the Court to permit the members of the jury to be supplied with refreshments at any time after they have been sworn. It could not be suggested, I would think, that the context of that section is limited to the conclusion of the evidence or after counsel had made their addresses. So, it is, I think, with s 55B and also s 55C, which deal with the power to give written directions and the power to provide a copy of all or any part of the transcript of evidence to the jury upon the jury's or a juror's request. The ability to provide a transcript, within the terms of the section, is one that arises from the outset of the trial. 30 There are other sections in Pt 8 as well, such as examination of jurors under ss 55D and 55DA, which clearly are powers arising generally throughout the trial. On the other hand, there are some sections, like s 54(1)(b) and s 55E, which plainly only arise at a later stage. Overall, as I say, it seems to me that there is no contextual basis for submitting that s 55B is confined in any temporal sense. 31 Secondly, the giving of directions generally throughout the trial is a matter that, in New South Wales at least, is common indeed, very common. Indeed, the failure to do so may, in a given case, raise the prospect of a serious error. The ability to give oral directions at any time must extend, where appropriate, to supplementing the oral directions with a written one. 32 Thirdly, quite apart from the powers expressly conferred on a Judge by the Jury Act to provide transcript and directions in writing, the trial Judge has an inherent or implied power to address issues of this kind (R v Taousanis (1999) 146 A Crim R 303 at 305-7, per Sperling J, approved by the New South Wales Court of Criminal Appeal in R v Sukkar (2005) NSWCCA 54 at 8 per Wood CJ at CL, with whom Hidden J at 155 agreed, and, on this point, 207 per Smart AJ. See also R v Bartle [2003] NSWCCA 329 at 669, 672 and (684 to 693) per Smart J; Mason P and Barr J at 184 and 283.) 33 In my view, it is appropriate to give directions of the kind identified in MFI 5 and 6 at the very outset of this trial. I accept that this is unusual. But this is an unusual trial. It is to be a very long and detailed factual trial. In my estimate, the jury needs some brief guidelines, accurate but brief, as to the legal issues likely to arise, and they need that assistance at the very commencement of the trial. 34 Fourthly, it cannot be the case, as Mr Lange's written submissions suggested, that the Court, after nine months of protracted arguments and judgments, has no inkling of the issues likely to arise, for example, in the case of Khaled Cheikho. Quite apart from anything else, the accused has pleaded not guilty to the charge. This puts directly in issue, as have the majority of pre-trial arguments addressing various issues raised by Khaled Cheikho, whether he was or was not a participant in an agreement to do acts in preparation for a terrorist act or acts. 35 In addition, as I mentioned during argument this morning, yesterday there was a legal argument about a completely unrelated issue. The argument involved a contest between Khaled Cheikho and the Commonwealth and State agencies. During this argument, Mr Lange himself stated, as appears at page 2839 of the transcript, that his client's case would simply be that nothing was done by his client, nor was any conversation had by his client, in order to facilitate a terrorist act or was in any way connected with a terrorist act. 36 Mr Waterstreet today suggested that this statement should be read entirely in the context of the argument that was held yesterday, namely, an argument as to whether subpoenas should be set aside on the basis that they showed no legitimate forensic purpose. But for my part, I do not read Mr Lange's statement in that limited way in its context. It is clearly an overall statement of his client's case and, indeed, that is the case I have understood Khaled Cheikho would be raising, and I have so understood it really since much earlier this year when a number of arguments were raised on his behalf. 37 In any event, how could it be sensibly suggested having regard to the situation I have described, arising from the charge and the plea, that the jury should not be told briefly and succinctly what a terrorist act is? How could it be sensibly suggested they should not be told what a terrorist act is not? The answer to each question must emphatically be answered, in my opinion, that it could not be so suggested. 38 Mr Waterstreet's submission, with all due respect, appears to be postulated on the assumption that the jury, so far as possible, should be kept in the dark for as long as possible. Far from being a distraction, the provision of such a direction will provide a focus, and a sharp one at that. 39 It only remains briefly to dispose of some of the detailed submissions made by Mr Waterstreet and Mr Lange. I will not address all of them. The principal ones appear to be those that I now turn to describe. 40 First, it was submitted that there is a danger in providing written directions at any stage of the trial. The authority for this was The Queen v Radford (1986) 133 LSJS in a passage from King CJ at 110. This was a South Australian case that was decided over twenty years ago. That, I would respectfully suggest, is not the modern view. Indeed, the opposite point of view is now really the norm. Written directions provide a very useful assistance to juries. While it is true that juries are told that they are to pay careful attention to the oral directions and should not use the written directions in substitution for the full oral directions, this does not mean that the written direction is not of value. Indeed, as I have said, I think in a case such as the present it can be of very significant value. It should, of course, be accompanied by an oral direction, and that is precisely what I propose to do in the present matter. 41 It was next submitted that directions should not be given until the issues are settled. I accept that this may be so, say, for example, in a murder trial, where issues of self-defence, provocation or accident may arise, but are not known at the outset. The position in this trial, however, is quite different. It is, in my view, important for the jury to know at the outset what a terrorist act is and, as I have said, what it is not. 42 Clarity on this issue at the earliest time represents a fundamental issue of fairness for each of the accused. That appears to me to have been quite overlooked by Mr Waterstreet in his submissions. If it also happens to provide some degree of clarity to the Crown case, so be it. That, however, is not its primary purpose. It is essentially designed to assist the jury in understanding an important issue that is certain to arise in this trial. The corollary to that proposition is that, if there is not a clear understanding of the point at the outset, the jury may well be led into a misunderstanding where they may act unfairly towards the accused. It is very much with that in mind that I consider a direction should be given, and I think it is not without some importance that of all the experienced counsel here, it is only Mr Waterstreet of counsel and Mr Lange, his junior, who take the point that no direction should be given at all at the outset. 43 Counsel next submitted that the directions would not spell out all the ingredients of the offence but would emphasise one sensational element, namely, a terrorist act. I do not agree. The draft direction does state all of the ingredients of the offence and does not in any way sensationalise the one ingredient. This trial is about an allegation of terrorist activity, in any event. It can hardly be a valid criticism to state that this is the position, or to direct the jury's direction to it in a measured and appropriate manner. 44 Counsel then submitted that the direction contains no reference to the onus of proof and standard of proof. With all due respect, I would respond that it does, albeit briefly. But, in any event, the full version of the introductory remarks will deal with these matters in a comprehensive way, indeed in the usual way. 45 Finally, Mr Waterstreet made reference to The Queen v MM (2004) NSWCCA 81. That decision, which I have read quickly this morning, appears to be of no particular assistance in relation to Mr Waterstreet's argument. In that case, it was asserted that the Crown had in its final address effectively undermined the subsequent legal directions given by the trial judge. The situation that arose in the trial was, according to the decision, created by the defence opening which had transgressed the limits set by s 159 of the Criminal Procedure Act. As Howie J, one of the members of the Court observed, this almost caused the trial to miscarry. However, the irregularities did not lead to the appeal being allowed. The appeal was ultimately dismissed. I have read the decision of all three members of the Court carefully, but I can find no support for any of the propositions advanced by Mr Waterstreet in his argument. 46 For what it is worth, I will direct the parties' attention to paragraph 155 of the decision. It is not, strictly speaking, relevant to this decision I am giving today. I would however, simply remind counsel that if the defence are going to make an opening address to the jury, and it has been my understanding to date that they may well do so, each counsel should bear in mind the remarks of Howie J in that paragraph as to the limits of the matters that properly may be raised in such an opening. Indeed, Howie J went on to say this: "As an opening address by the Crown should not contain any argument or submission to the jury as to the validity of its case, so the matters disclosed in the Prosecutor's address referred to in the section, cannot be arguments or submissions arising from the nature of the evidence to be called by the Crown. Nor should matters be raised by the accused person be taken to include defence arguments and submissions based upon the Crown evidence or evidence which may be called in the defence case." 47 I think it is a useful reminder to both the Crown and the defence that there are limitations on the opening, and I trust that they will be observed in the present matter. 48 Those then are the reasons for the decision I have made to allow both the chronology and, subject to the amendments I have made, introductory remarks contained in MFI 5 and the written direction in MFI 6.

Regina (C'Wealth) v Elomar & Ors

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