Regina (C'Wealth) v Baladjam & Ors [No 14] [2008] NSWSC 1438 (2 May 2008)

Last Updated: 16 August 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Regina (C'Wealth) v Baladjam & Ors [No 14] [2008] NSWSC 1438


JURISDICTION:
Criminal

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

HEARING DATE(S):
28/04/08

JUDGMENT DATE:
2 May 2008

PARTIES:
Regina (C'Wealth) v Omar BALADJAM [No 14]
Regina (C'Wealth) v Khaled CHEIKHO
Regina (C'Wealth) v Moustafa CHEIKHO
Regina (C'Wealth) v Mohamed Ali ELOMAR
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


JUDGMENT OF:
Whealy J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
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; I Nash - Accused M Cheikho
D Dalton SC; E 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




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


CATCHWORDS:
CRIMINAL LAW - Application to exclude evidence under s 138 of Evidence Act - No illegality or impropriety - Relationship between ASIO and AFP - Crimes Act (C'Wealth) - s 3ZO - Relevant factors under s 138 Evidence Act 1995

LEGISLATION CITED:
Evidence Act 1995
Commonwealth Crimes Act 1914 (Cth)


CASES CITED:
DPP v AM [2006] NSWSC 348; [2006] 161 A Crim R 219
R v Alexander (1991) 45 CLR 395
R v Baladjam & Ors [No 7}, unreported 15 April 2008
R v Coombe NSWCCA , Hunt CJ, Smart and McInerney JJ, 24 April 1997 - unreported BC9701438
R v Coulstock (1998) 99 A Crim R 143
R v Cornwell [2003] NSWSC 97; [2003] 57 NSWLR 82
R v Petroulias (No 8) [2007] NSWSC 82
R v Petroulias (No 9) [2007] NSWSC 84
Robinson v Woolworths Limited [2005] NSWCCA 426; [2005] 64 NSWLR 612


TEXTS CITED:


DECISION:
I decline to exclude the evidence of Moustafa Cheikho's identification.



JUDGMENT:

- 1 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

CRIMINAL LIST

WHEALY J

PARRAMATTA: FRIDAY 2 May 2008

2007/2397001 - Regina v Omar BALADJAM [No 14]

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

JUDGMENT - Application to exclude evidence under s 138 of Evidence Act (Identification of Moustafa Cheikho)

1 HIS HONOUR: This is an application made on behalf of Moustafa Cheikho pursuant to s 138 of the Evidence Act 1995. The section is in the following terms:

“Exclusion of improperly or illegally obtained evidence

138(1) evidence that was obtained:

(a) improperly or in contravention of an Australian law, or

(b) in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.”

2 Sub-section (3), without limiting the matters that the Court may take into account, sets out those that must be taken into account. This exercise becomes necessary only if the Court is satisfied that the evidence was obtained improperly, in contravention of an Australian law, or in consequence of an impropriety or of a contravention of an Australian law. The section requires a balancing exercise taking into account, amongst other things, those matters mentioned in sub-section (3).

3 The accused has the onus of proving the matters that would raise the exercise of the discretion (R v Coombe (NSWCCA, Hunt CJ, Smart and McInerney JJ, 24 April 1997 - unreported BC9701438.)

4 Where the accused has established an impropriety or illegality, the onus is placed on the Crown to persuade the trial Judge that the evidence should nevertheless be admitted: R v Coulstock (1998) 99 A Crim R 143.

5 The meaning of the term "an impropriety" was considered in Robinson v Woolworths Limited [2005] NSWCCA 426; (2005) 64 NSWLR 612.

6 In that case it was held that the identification of impropriety requires attention to the following:

“First, it is necessary to identify what, in a particular context, may be viewed as 'the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement'.

Secondly, the conduct in question must not merely blur or contravene these standards in some minor respect; it must be 'quite inconsistent with' or 'clearly inconsistent with' those standards. (A third category was mentioned which is not relevant to the present matter.)”

7 See also Director of Public Prosecutions v AM [2006] NSWSC 348; (2006) 161 A Crim R 219; R v Cornwell [2003] NSWSC 97; (2003) 57 NSWLR 82 and R v Petroulias (No 8) (2007) NSWSC 82; R v Petroulias (No 9) (2007) NSWSC 84.

Previous decision

8 On 15 April 2008 I gave a decision which related, inter alia, to an application on behalf of Moustafa Cheikho to exclude a body of evidence pursuant to the exercise required by s 137 of the Evidence Act (R v Baladjam & Ors (No 7), unreported, 15 April 2008).

9 The body of evidence which was the subject of that decision is, in fact, precisely the same evidence that is now the subject of the present application under s 138. Such an application was foreshadowed at the time, but it was agreed between the Crown and Moustafa Cheikho's legal representatives that the s 138 question might be deferred until a later time. The delay was occasioned, in part, by the need for the defence to have access to certain subpoenaed material and further disclosure material.

10 There is no need for me to repeat in this decision the detail of the impugned body of evidence. It is set out fully in the decision of 15 April 2008. Essentially, it is evidence that a man named Yong Ki Kwon, who had attended a LeT camp in Pakistan, identified the accused Moustafa Cheikho as one of the trainees at that camp. At the time, the man identified by Kwon was known as Abu Asad. According to Kwon's evidence, Abu Asad was at the training camp with him in late 2001.

11 The earlier decision identifies the general relevance of Kwon's evidence in relation to the present trial. It also addresses the s 137 issue. Each of the issues was determined unfavourably to the interests of the accused.

The present application under section 138

12 Mr Button SC made written and oral submissions on behalf of Moustafa Cheikho. Those submissions accepted that a number of statutory protections against the admission of identification evidence did not apply to the present matter. For example, it was accepted that section 3ZO of the Crimes Act 1914 (Cth) did not apply. Secondly, it was accepted that ss 114 and 115 of the New South Wales Evidence Act had no application to the present matter.

13 Mr Button's submissions focused upon the procedure which had been adopted to obtain the evidence from Kwon that he was able to recognise the man Abu Asad as a person he had trained with at the LeT camp in late 2001. The basic proposition embraced by Mr Button was that the process was a flawed one for a number of reasons. A principal one was that it did not involve the preparation of a proper photo board containing individuals of a similar description to the accused, and no other steps were taken to otherwise ensure the fairness of the identification process undertaken with Kwon. It was not suggested that it would have been practical or possible to hold an identification parade.

14 The particular process is described briefly at paragraph 14 of the decision of 15 April 2008. The man Springer who conducted the interview was an ASIO agent. He has, at all times, maintained that the process was one of intelligence gathering and not one of investigation for the purpose of gathering evidence for prosecution or trial in relation to an offence. It is against the background of these matters that Mr Button's submissions have been made. They may be briefly stated as follows:

15 First, Senior Counsel argues that the process involved was, in truth, part of an ongoing investigation into suspected criminal activity in Australia. It was not in fact, an intelligence gathering process. The manner in which the identification occurred constituted a reckless impropriety and, as such, should lead the Court to find that the evidence is inadmissible.

16 Secondly, in the alternative, Mr Button SC argued that, if the photo identification is considered to be part of an intelligence gathering process, it is improper that it be received as evidence. This is so because the process of gathering the evidence destroyed the efficacy of a "correct" evidence gathering process. (This was a reference to the fact that the Australian Federal Police on 16 December 2003 carried out a full photo board identification process with Kwon in which, for the second time, Kwon identified a photo of Moustafa Cheikho as the man Abu Asad.) The point Mr Button made was that the prosecution has disavowed a tender of the AFP identification process but wish to rely upon the first process conducted by Mr Springer. Senior Counsel argued that the prosecution should not be allowed to do this.

17 Mr Button's final submission was that, if the evidence, as he submitted, is “inadmissible” pursuant to s 138, the balancing process mandated by section 138(3) should result in a finding that the desirability of admitting the evidence is outweighed by the undesirability of the evidence being admitted. Accordingly, the evidence should be rejected.

Was the process an "intelligence gathering process"?

18 In my view, the answer to this question must be in favour of the prosecution. The starting point is the evidence of Mr Springer. He gave evidence at a previous trial (R v Lodhi) both on the voir dire and at trial. The evidence in that trial related to the processes of identification that occurred on 26 November 2003 with the witness Kwon. In the Lodhi trial, the point at issue, however, related to the identification by Kwon of a man he had trained with in Pakistan. This man was ultimately shown to be a French terrorist, one Willie Brigitte. It was, however, during the same series of interviews that the identification of Moustafa Cheikho as Abu Asad occurred. This second identification was not relevant for any purpose in the Lodhi trial. Nevertheless, the evidence given by Springer in that trial is plainly relevant to the present issue. There is no dispute about that in the present application, although, as will be seen, Mr Button has argued that Springer’s evidence, in the light of other material, should not be given undue prominence. Springer also gave evidence at the committal of the present accused in this trial.

19 There is no need for me to set out in detail the evidence given by Springer. He said on a number of occasions during the Lodhi trial that he had conducted his interviews on 26 November 2003 for intelligence gathering purposes. He said he was not aware of the procedure that the AFP used for identification of suspects from photographs. He said that the reason he took additional photographs with him was because he wanted to leave the interview with accurate intelligence about the information. Springer conceded that it was his assumption that the police would be interested in any information. It was his intention, as was his usual practice, to share any information with the AFP. He agreed that people in the photographs were either people of interest or people known to ASIO. The purpose of the procedure was for ASIO to determine if Kwon could recognise any of the people in the photographs. This process was designed to assist ASIO to determine if the person was, was not, or might be, involved in terrorist activity.

20 Springer later said that he could not recall what, if anything, he was told about Moustafa Cheikho prior to the interview. He said that he knew "very little about him" prior to that. (This last statement came from Springer at committal in relation to the present trial.) This evidence, in general terms, provides a solid basis for a finding that the process was one of intelligence gathering.

21 Secondly, I do not accept the submission that ASIO and the AFP were working "hand in glove" in relation to either the Kwon interviews. I do not accept that there was a joint criminal investigation in respect of which the Kwon identification, when it occurred, played a significant part. Importantly, there is no evidence that the AFP knew at all that these interviews were being undertaken by Springer on 26 November 2003. The evidence is rather to the contrary.

22 Thirdly, I do not accept that there was an ongoing “police-type” operation that ASIO and AFP were part of involving the investigation of associates of Brigitte and Lodhi, including the present accused Moustafa Cheikho. Certainly, there was a joint operation. In my view, the role of ASIO was essentially intended to be one of gathering intelligence, and the role of the AFP was one of essentially investigating the commission of terrorist crimes in Australia. In any event, the AFP played no part in the identification process on 26 November 2003 and that process was, as I have said, essentially one of gathering intelligence.

23 In a second "confidential" judgment to be published on a restricted basis today, I examine in considerable detail the documentary and other material relied upon by Mr Button to advance the proposition that there was a joint “investigation” process involving the two agencies in operation at the time of the 26 November 2003 interview between Springer and Kwon. I have carefully examined all of that material but I have concluded that Mr Button's principal submission cannot be accepted. The “confidential” judgment should be read in conjunction with the present decision

24 In general terms, it seems to me that ASIO were attempting to confine their activities to intelligence gathering. That is certainly the way that ASIO operatives saw their task and any examination of the confidential material does not dictate a contrary conclusion. It seems to me that, in general terms, ASIO were jealously guarding their role as intelligence gatherers. While they might, on occasions, have strayed from this path into aspects of the investigative process, (for example, in the Lodhi trial in relation to activities n Australia), I do not think that happened in relation to the Kwon identification.

25 In the same way, it may be said that the AFP conscientiously investigates the activities of persons suspected of being involved in the commission of crime in Australia. Where information is properly placed before it by ASIO, the AFP regard it as its duty to utilise that information to investigate whether a crime has been committed and whether consideration should be given to the arrest and charging of persons whose activities may reveal criminal offences. It is noteworthy that no charges were ever laid again Moustafa Cheikho in relation to his activities in Pakistan in 2001. The present offence, by way of contrast, relates to activities in New South Wales occurring from mid-2004 onwards.

Does the Kwon identification reveal an impropriety in the manner in which ASIO conducted the photo identification process?

26 The simple answer to this question is that s 138 is not engaged at all for the reasons I have already indicated. In any event, I am not persuaded that what happened on 26 November 2003 can be said to be "improper" in a more general sense. In the process of gathering intelligence, there was no obligation on the part of ASIO to adopt the procedures required to be utilised by police officers when attempting to obtain identification evidence in relation to a person having committed a crime.

27 In the first place, although Mr Springer and his agency would have been not unaware of the criminal nature generally of terrorist activities, the real purpose of the interview with Kwon was to obtain information from him as to the identity of persons who had trained with him at the LeT camp. In addition, intelligence was sought to be gathered as to the nature of the training at that camp.

28 Secondly, as I have mentioned, the identification of Moustafa Cheikho as Abu Asad did not involve the identification of the accused as a person committing the crime with which he is charged in the present indictment. That, of course, is not an end to the matter, but it is a distinction that may be brought to bear on the issue. The fact of Moustafa Cheikho's training at the LeT camp, if the identification be accepted, is but one piece of circumstantial evidence in the Crown case alleging the existence of an agreement involving the accused and others to do acts in preparation for a terrorist act or acts. That agreement is said, on the Crown case, to have come into existence about mid 2004 and to have continued until the arrest of the accused in November 2005. The fact of Moustafa Cheikho's training in Pakistan in 2001 is but part of the Crown circumstantial case although, in accordance with the decision I gave on 15 April 2008, it is not to be admitted against the other men accused of the conspiracy.

29 I do not consider that the fact that the material was obtained during an intelligence gathering purpose should lead to its being rejected on the basis that, as it turns out, the material is now to be tendered as evidence in a criminal trial. No authority was cited to me to justify such an approach and I reject it.

30 Mr Button argued, as I pointed out earlier, that Springer ought to have consulted the AFP before he conducted the interview so as to enable ASIO to comply with police procedures. But this argument assumes that the AFP and ASIO were jointly engaged in investigation of a criminal activity. This was not the case. The very fact that Springer did not consult the AFP is cogent proof of the fact that no such arrangement existed between the two agencies. I agree with the Crown that the fact that this evidence is now to be tendered in proof of an offence committed many months after the interview with Kwon does not transform or alter the character of the process undertaken by Springer on behalf of ASIO. In addition, as I discuss in the “confidential” judgment, the ASIO selection of photos to be shown reinforces that the interview was one for intelligence gathering purposes, not for criminal investigation purposes.

31 I also agree that section 3ZO of the Crimes Act had no application to this interview. Not only was Springer not a constable, but it is clear that it was not his function to identify a "suspect" within the meaning of the sections in the Commonwealth Crimes Act. Of course, Mr Button did not submit that section 3ZO had any direct application. But it was at least implied in the written submissions that, by analogy, a failure to comply with those types of stipulations (reliance being placed on matters discussed in R v Alexander (1991) 45 CLR 395) might result in Springer's conduct being regarded as improper and recklessly so.

32 The Crown argued, in any event, that the principles in Alexander's case had little application to the present matter. The issue in that case was the identification of a person not previously known to the witness where an offender had been seen by the witness in connection with the commission of a crime. By way of contrast, the Crown argued here that this was not a case of identification. It was rather a case of recognition of a person known to Kwon. The recognition was provided to Springer in his capacity as a gatherer of intelligence for ASIO, and did not relate to the commission of a crime, certainly not the crime with which Moustafa Cheikho is presently charged.

33 I do not accept that the tender of the subject body of evidence is or will be inadmissible in the present trial. In my opinion, provided appropriate directions are given that reflect the usual dangers of identification evidence generally and the particular problems that might be said to exist in the present matter, the evidence is admissible. The Alexander principles still have application, not to exclude the evidence but to give content to the directions that may be necessary.

34 It is not necessary for me to label conclusively at this stage whether the evidence be identification evidence or recognition evidence. I am inclined to the view that it was a recognition, albeit one made against the background of a comparatively short period of association. In either case, it will be necessary to give appropriate directions to the jury, although there is no need to identify the precise scope of those directions at this stage.

35 The final matter argued by Mr Button related to his assertion that it would be, in a general sense, improper to allow the Crown to tender the evidence at trial in circumstances where the Crown had determined not to tender evidence of 16 December 2003 AFP photo board identification process. Senior Counsel’s argument appeared to be this: it was argued that the process by which Mr Springer obtained evidence that identified Moustafa Cheikho as the man Kwon had trained with in the LeT camp “tainted” or “infected” the later AFP procedure. In other words, when the AFP showed a proper picture board to Kwon, the displacement effect would have been so great (in the light of his earlier identification) that the picture board process would have had no or little probative value.

36 Mr Button suggested that there was something improper about the Crown endeavouring to produce evidence of the Springer/Kwon identification in circumstances where it could no longer rely upon the tainted AFP procedure. The Crown did not accept that the AFP procedure was “tainted” in any real sense. It accepted, no doubt, that the forensic value of the AFP process might be lessened by the sequence of events which had occurred. But, in any event, the Crown said it was perfectly proper to lead evidence of the Kwon/Springer identification because that was the first time the identification occurred. The fact that the evidence was obtained during an intelligence gathering process had no bearing on the decision to lead that evidence in relation to the commission of a later offence.

37 It seems clear to me that, in one sense, the Crown has made a tactical forensic decision. It has decided to go with the Kwon-Springer identification with all of the faults that process might exhibit. Of course, the Crown does not say that the process was particularly flawed. It accepts, however, that directions will have to be given pointing out that the selection of photos was not an ideal one. On the other hand, the Crown will no doubt argue before the jury that there are reasons why the jury might, despite warnings and directions, ultimately accept the identification as reliable. From the point of view of forensic tactics, the later identification, involving the AFP officers, does pose greater problems for the Crown. I accept that is so. I fail to see, however, that there is anything improper in relation to the decision made by the Crown to lead evidence of the first identification. Once again, provided appropriate directions are given, in my view the evidence should not be rejected for any of the reasons advanced by Mr Button.

38 For these reasons, I am perfectly satisfied that s 138 has not been triggered by the presence of an impropriety, a contravention of an Australian law or that the evidence was obtained in consequence of an impropriety. Moreover, I am not satisfied that, for any other reasons, it would be improper to admit the evidence.

39 Lest I be wrong about those matters, I turn to sub-section (3). In my view, the evidence sought to be adduced has a reasonably high probative value. That was the decision I reached in the decision given on 15 April 2008 (at para 69) and I see no reason to modify that view. Issues such as any alleged weakness in the photographic identification process itself and weakness attaching to the reliability of the evidence of Kwon may appropriately be the subject of directions.

40 Secondly, the evidence is plainly of importance in the proceedings. It goes directly to facts in issue and to rebut the likely defence case.

41 Thirdly, the offence is a serious one.

42 Fourthly, while I have found that there was no impropriety, any impropriety, if one existed, is of a minor kind. Mr Springer had no knowledge of proper police procedures and, in view of the fact that he was, in his mind, simply gathering intelligence, there was no need for him to have had such knowledge. Similarly, there was no need for him to consult the AFP on the subject, since he was not at that time jointly engaged in any investigative process with the AFP. If I am wrong, and there be thought to be some impropriety in what happened, I do not consider that it was either deliberate or for that matter reckless. It may, at worst, have been naïve or careless.

43 Finally, I have considered the matters in sub-section (3)(f), (g) and (h). I do not consider that any of those matters are such as to require me to find that the evidence should not be admitted. On any view of it, I consider that the desirability of admitting the evidence outweighs the undesirability of so doing.

I reject the application made under s 138 of the Evidence Act to exclude the evidence.

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LAST UPDATED:
6 July 2010