New South Wales Supreme Court CITATION : Regina (C'Wealth) v Baladjam & Ors [No 48] [2008] NSWSC 1467 HEARING DATE(S) : 07/08/08; 18/08/08; 02/09/08 JUDGMENT DATE : 30 September 2008 JURISDICTION : Criminal JUDGMENT OF : Whealy J at 1 DECISION : Order that the Notice of Motion dated 4 July 2008 be dismissed. CATCHWORDS : CRIMINAL LAW - Application to exclude admissions made by accused on the basis of oppressive police conduct - Proper construction of s 84 Evidence Act 2005. - CRIMINAL LAW - Application to exclude from trial items removed during execution of a search warrant - Suggested breaches of ss 3K(3)(a) and (b) of Crimes Act 1914 (Cth) - Failure to notify the occupier of the premises from which items have been removed of the place and time at which the subsequent examination will be carried out - Failure to allow the occupier or his representative to be present during the subsequent examination - Proper construction of section. - CRIMINAL LAW - Breaches of ss 3K(3B) and (3C) - Failure to make application for extension of time in the name of the executing officer - Failure by executing officer to give notice of the extension application to the occupier - Failure to give adequate notice to occupier's solicitor - Proper construction of ss 3K(3B) and (3C) of Crimes Act 1914 (Cth). - CRIMINAL LAW - Alleged failure to give a copy of search warrant to a person in the position of alternate occupier - The requirements of s 3H of the Crimes Act 1914 (Cth) - Proper construction of section. - CRIMINAL LAW - Alleged breach of 3P of Crimes Act 1914 (Cth) - Failure to allow occupier or alternate occupier to be present during the search - Proper construction of section in circumstances where occupier has been arrested, detained and taken away from the premises. - CRIMINAL LAW - Proper construction of s 23G of the Crimes Act 1914 (Cth) - Failure to allow an arrested person to communicate with friend, relative and legal practitioner - Whether alleged failure capable of amounting to oppressive conduct - Whether any breaches of the accused's rights under the Crimes Act 1914 (Cth) had any bearing on his making the statement sought to be excluded. - CRIMINAL LAW - Applicability of ss 135 and 137 and 90 of Evidence Act 1995 - Whether statements should be excluded as being unfairly prejudicial or unfair to the accused. - CRIMINAL LAW - S 138 Evidence Act 1995 - Ambit of discretionary considerations and matters relevant to decision as to whether evidence should be excluded where breach has been established. Criminal Code Act 1995 (Cth) LEGISLATION CITED : Crimes Act 1914 (Cth) ss 3 H, 3K, 3P, 23D, 23F and 23 G Cyberspace Act 2001 Evidence Act 1995 ss 84, 90, 135, 137 and 138 Commissioner of Australian Federal Police v Oke [2007] 159 FCR 441, 449 at (3) DPP v Coe [2003] NSWSC 1 May 2003 Egglishaw v Australian Crime Commission [2006] FCA 819 EM v R [2007] 239 ALR 204; [2007] ACS 46 at 109 per Gummow and Hayne JJ Hart v Commissioner Australian Federal Police [2002] FCAFC 392 Harts Australia Limited & Ors v Commissioner Australian Federal Police [2002] 117 FCR 358 at (24) per Drummond J Higgins v Regina [2007] NSWCCA 56 Markovina v The Queen (1996) 93 A Crim R 149 at 172 New South Wales v Corbett [2007] 230 CLR 606, 612 at (22) Ousley v The Queen (1997) 192 CLR 69, 111 per McHugh J Papakosmos v R (1999) 196 CLR 297 R v Blick [2000] 111 A Crim R 326 R v Camilleri [2007] 68 NSWLR 720 R v Cornwell NSWSC (ureported 20 February 2003) (Howie J) CASES CITED : R v EM [2003] NSWCCA 374 R v Esposito (1998) 45 NSWLR 442; 105 A Crim R 27; R v GK [2001] 53 NSWLR 317 at 324 R v Haddad & Treglia [2000] 116 A Crim R 312 at (73-75) R v Horton (1998) 45 NSWLR 426; 104 A Crim R 306 R v Petroulias [No 8] 2007 NSWSC 82 R v Petroulias [No 9] 2007 NSWSC 84 R v Pinkstone SCWA (unreported) 10 March 1997 (White J) R v Serratore (1999) 48 NSWLR 101 R v Su & Ors (1997) 1 VR 1 at pp 37 and 38 R v Suteski [2002] 56 NSWLR 182 at 199 (116) R v Ye Zang [2000] NSWSC 1099 Simpson J (at 44) Robinett v Police [2000] 78 SASR 85; 116 A Crim R 492 per Bleby J Smith v The Queen [2001] 206 CLR 650 Williams v Keelty [2001] FCA 1301; [2001] 1111 FCR 175 at (235) per Hely J Regina (C'Wealth) v Omar BALADJAM [No 48] Regina (C'Wealth) v Khaled CHEIKHO Regina (C'Wealth) v Moustafa CHEIKHO PARTIES : 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 FILE NUMBER(S) : SC 2007/2397001;; 2007/2395001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; G. Bellew SC; C. 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 COUNSEL : Ms D Yehia; Ms S Beckett - Accused Hasan T. Hale SC; G Scragg; D Carroll - Accused Jamal G Turnbull SC; A Djemal - Accused Mulahalilovic Commonwealth DPP Greg Walsh & Co - Accused Baladjam Lawyers Corporation Ltd - Accused K Cheikho SOLICITORS : William O'Brien & Ross Hudson Solicitors - Accused M. Cheikho Nyman Gibson Stewart - Accused Elomar Legal Aid Commission - Accused Hasan Michael Doughty Solicitor - Accused Jamal Lawyers Corporation Ltd - Accused Mulahalilovic - 1 - THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST WHEALY J PARRAMATTA: TUESDAY 30 September 2008 2007/2397001 - Regina v Omar BALADJAM [No 48] 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 2007/2455001 - Regina v Mazen TOUMA JUDGMENT - Application to exclude statement made by Khaled Cheikho on 8 November 2005 - Application to exclude from trial items taken during the execution of a search warrant on 8 November 2005 at Khaled Cheikho's home - Section 84 of Evidence Act – Oppressive conduct - Breaches of ss 3K(3)(a) and (3)(b) of Crimes Act 1914 (Cth) - Breaches of ss 3K(3)(A) and (3)(B) of Crimes Act – Suggested breaches of ss 3H and 3P of Crimes Act – Construction of sections – s 138 of Evidence Act 1995 – Discretion exercised to allow evidence – Relevant principles and considerations 1 HIS HONOUR: This is an application by Khaled Cheikho to exclude statements made on 8 November 2005, and to exclude material taken in the execution of a search warrant at 3/63 Taylor Street, Lakemba. 2 On 7 November 2005, an authorised issuing officer signed two search warrants in favour of Federal Agent Colin Hunt. The warrant was "signed over", ultimately coming into the possession of Detective Sergeant Paul McDonald whose task it was to be responsible for the execution of the warrants. 3 The first warrant related to premises known as Unit 3, 63 Taylor Street, Lakemba, New South Wales 2195. I shall refer to it as the premises warrant (a copy of it appears as annexure A to this decision). The second warrant - a vehicle warrant - related to a proposed search of a Holden motor vehicle, registration AG61GE. The premises and motor vehicle were associated with Khaled Cheikho, one of nine men presently on trial for a charge of conspiracy to do acts in preparation for a terrorist act or acts (ss 101.6 and 11.5 Criminal Code Act 1995 (Cth). 4 The search of Khaled Cheikho's premises and car were part of a wider counter-terrorism operation. The early hours of the morning of 8 November 2005 had been set aside as the time for a major police "swoop" on a number of homes in Sydney's western suburbs. This was a very large-scale operation involving a considerable number of New South Wales Police, Federal Police and other persons. The premises at unit 3, 63 Taylor Street, Lakemba, were one of those targeted for search and seizure as part of the overall counter-terrorism operation. It was plainly envisaged as part of the operation that a number of persons would be arrested and their homes searched. As it happened, during the early hours of that morning and later that day, all nine of the present accused were arrested. Khaled Cheikho was cautioned and placed under arrest at about 2.30am on 8 November 2005. His premises were then subjected to a detailed forensic procedure. At the conclusion of that operation, during which time Detective Sergeant McDonald had read and explained the search warrants to the accused, the search proper in relation to the vehicle and premises commenced. The accused himself was taken away shortly before the search commenced. He was taken to Surry Hills Police Station at about 4.50am and there placed in custody. The search at his home commenced at about 5am and concluded at about 9am. 5 The searching officers seized a considerable number of items from the premises and the motor vehicle, details of which were entered by Senior Constable Telfer into a Fields Exhibit Book. Senior Constable Telfer retained custody of the various items for a time. Later, an independent officer, Acting Inspector Wright, Detective Constable McDonald and Senior Constable Telfer went to a nearby property at Lakemba. Prior to the search commencing, the accused's wife, Ms Wisudo and her child had been taken at their request to Ms Wisudo's mother's place. They were escorted there by two female officers. Ms Wisudo was at her mother's place when the police officers called shortly after 9am on 8 November 2005. 6 Ms Wisudo signed each page of the property seizure exhibit form and was given a copy of the forms. The seized items were then taken to Bankstown Police Station, entered into the Bankstown Police Station exhibit book and retained there. The present applications by notice of motion dated 4 July 2008 7 Khaled Cheikho has by his notice of motion, sought to challenge or exclude various pieces of evidence sought to be relied on by the Crown at trial. These related, in a number of instances, to evidence sought to be led not only against Khaled Cheikho but against other of the accused as well. The present applications, however, relate to two specific areas involving only Khaled Cheikho. The first identified aspect seeks to exclude a statement made by the accused shortly after he had been cautioned and arrested on 8 November 2005. The statement appears at page 4 of Exhibit "A". Detective Gawel had explained to the accused that the police were then conducting a forensic procedure in the premises. He told the accused that "when they come out the premises will be sealed and then we'll wait for the return of the forensic examination". At this stage, the accused said: " [ARABIC] Did Howard ever tell you this, did that cock sucking mother fucker tell you this. Tell him from me, tell him, tell him the guy that you raided at 2 o'clock told you to get fucked. Tell him I told you to...told you to go and get fucked Howard you motherfucker. Tell him I swear by Allah [ARABIC] you fear me not, you have put no fear in my heart, no fear [ARABIC] with all thanks to Allah (ind) destroy the wrongdoers. The annihilator of the tyrants and of the infidels. This is who we worship, who do you worship, Howard and the legislations. Your democracy full of hypocrisy. Is that it? We worship Allah [ARABIC] Sharia law is gonna prevail throughout this land, it's gonna be ruled by it, you tell Howard this, tell him, Islam is gonna rule this land. Sharia law, Sharia law you poofter, Sharia law, go and learn about it because you're gonna be ruled by it, this is a promise by Allah. The prophets (ind) promised us... said the land, all the lands, all the lands, is Allah's land, Allah created it and he's given it to the Muslims and the Muslims are gonna rule in it. By Allah's law, the one and only law that's worthy, worthy or ruling mankind, no democracy rubbish. It's full of shit. So you tell Howard this and pass it on to Bush the motherfucker. Tell him Abu Mosayed is gonna come and chop him up. DG: Who, sorry? KC: Abu Mosayed hopefully because (ind) they're the champions. Is it wrong to say that, fuck youse". 8 (Detective Sergeant Gawel agreed that the second reference to Sharia law in the text was a remark by him, repeating the expression Khaled Cheikho had used). 9 Khaled Cheikho argues that the statement is not relevant to any fact in issue in the trial. Secondly, his lawyers, Messrs Waterstreet and Lange, argue that the evidence, if relevant, is inadmissible pursuant to s 84 of the Evidence Act, or that it ought to be excluded pursuant to ss 90, 135 and 137 of the Evidence Act. 10 The second area of attack focused upon s 138 of the Evidence Act 1995. This section was sought to be applied to exclude, firstly, the statement made by Khaled Cheikho referred to in the last paragraph. The "significant breaches" of the law identified were (a) failure to inform the accused of his rights pursuant to s 23G of the Crimes Act 1914 (Cth) and (b) a failure to accord the accused a right to be present while the search of the premises and vehicle was undertaken. 11 Secondly, s 138 of the New South Wales Evidence Act was sought to be relied upon to exclude all the material seized from both the premises and the motor vehicle. There were identified, however, specific "breaches" by the police in relation to the four computer hard drives and the CDs taken from the premises. On the assumption that these items were not "seized" within the terms of the warrant, but were removed for subsequent examination pursuant to the powers in s 3K(2) of the Crimes Act 1914 (Cth), the police had failed to comply with the legislation in the following respects: First, neither the accused nor his wife, as occupiers, were informed of the place and time at which the "examination" of the items was to be carried out. Secondly, they were not allowed, as a consequence, to be present at the subsequent examination, whenever it occurred (ss 3K(3)(a) and (b) Crimes Act 1914). Thirdly, neither the occupiers nor their representatives were given an opportunity to be present when the application for an extension of the examining period was sought and granted on 10 November 2005 (s 3K(3B) Crimes Act 1914). Fourthly, the application for an extension of time was not made by the "executing officer" but by another police officer and, as a consequence, the extension granted was invalid. (Section 3K(3B)). Fifthly, in relation to the CDs (as opposed to the hard drive), the police took no steps whatsoever to comply with the provisions of s 3K at all. 12 In relation to all items seized, the submissions of the accused (in their final form) identified the following further alleged breaches: First, use of the wrong property seizure form (a New South Wales form rather than one designed to reflect the items taken after a Federal search); service (if it occurred at all) of an imperfect occupiers form. Thirdly, there was a failure to allow either Khaled Cheikho or his wife to be present (as occupiers) during the search. Fourthly, there was a failure to show a copy of the warrant to Ms Wisudo, and, finally, inappropriate procedures had been adopted in relation to Ms Wisudo and the signing of the Property Seizure document. The facts surrounding the matters involved in the applications 13 The original search warrants were issued by Ian Peebles, an issuing officer within the meaning of the Crimes Act 1914. The warrant recites the issuing officer's satisfaction that, by information on oath, there were reasonable grounds for suspecting that "evidential material" as defined in the Crimes Act 1914 would be present at unit 3, 63 Taylor Street, Lakemba. The warrant recites that the "evidential material" satisfied all of three stipulated conditions. The first was that the evidential material (being a thing relevant to an indictable offence) included some 62 items, which related to one or more of 31 persons or businesses (including Khaled Cheikho himself). The third "satisfied" condition was that, in relation to those items, there were reasonable grounds for suspecting that they would afford evidence as to the commission of certain stated terrorism offences. The "things" stipulated included Internet files and/or print-outs; political, extremist and/or religious propaganda; and photographs, videos, CDs, DVDs or other imagery. It also included personal computers, magnetic and digital storage media. It extended to any "of these stored on a computer or on a computer storage device". 14 The premises warrant authorised Federal Agent Hunt to carry out a number of the functions generally authorised under s 3F of the Crimes Act 1914. These included entering the premises, searching for and recording fingerprints found at the premises, and taking samples of things found at the premises for forensic purposes. It extended to searching the premises for any evidential material that satisfied all of the three conditions referred to in the warrant, and to seize any such evidential material that might be found. It also authorised the executing officer to seize any "other thing" found at the premises in the course of the search that the executing officer for the constable assisting believed, on reasonable grounds, to be evidential material in relation to an offence to which the warrant related. The warrant also authorised ordinary searches and frisk searches of any person who was at or near the premises in the circumstances outlined in the warrant. The warrant asserted, in its terms, that a statement of the rights of the occupier of the premises was attached to the warrant. The warrant was in force for a period of seven days and permitted execution "at any time". 15 A statement from Federal Agent Hunt shows that he had been in attendance at the Downing Centre Court complex Liverpool Street on 7 November 2005 where he obtained search warrants in relation to some 14 premises and 19 motor vehicles. On the same day he signed over the search warrants for the subject premises to Detective Senior Constable Robert George. A statement from D S C Robert George shows that on the evening of 7 November 2005, George had attended a briefing at the New South Wales Crime Commission. He spoke to some of the warrant holders and signed over the warrants for the subject premises to Detective Sergeant McDonald. Later he and a number of other policemen attended the Westmead area where there was a detailed briefing regarding the proposed execution of all the search warrants. 16 In attendance at this briefing were Detective Sergeant McDonald and Detective Sergeant David Gawel. The latter is attached to the investigation unit of the Counter-Terrorism Coordination Command of the New South Wales Police Force. The statements of the two police officers, McDonald and Gawel, confirmed that they were actively involved in the extensive briefing process that took place on the evening of 7 November 2005 at the New South Wales Police Campus, Westmead. It was D S Gawel's understanding that he was would be responsible for the arrest and taking into custody of Khaled Cheikho. D S McDonald would be responsible for the conduct of the search itself. 17 After the conclusion of the general briefing at Westmead, D S Gawel conducted a more specific briefing with the members of the search team in relation to the specifics of the premises at 3/63 Taylor Street, Lakemba. He also discussed other issues relating to a police operation then known as "Strike Force Hammerli". Following this briefing, D S Gawel, in company with Detective Ryan Malcolm and Plainclothes Constable Telfer travelled to the Enfield area. There, they had a final briefing with the search warrant team. Officers from the Forensic Services Group took a control swab for explosives from DS Gawel and other nominated members of the search team. Once this task was completed, the entire search team then travelled to the vicinity of Taylor Street, Lakemba. 18 According to the statement by DSC Ryan Malcolm, the officers involved in the search warrant team included the following: Inspector Peter Wright (independent officer) Detectives Neil and Bevan (video officers) SC Telfer (exhibits officer) Officers Hunt and Jones (searching officers) Sergeants Jones, Hamilton, SC Thompson and Constable Rowney (forensic officers) FAs Nahmius and Moss. 19 Also assisting in the execution of the warrant were Sergeants Finley, Roach, Skeffington and Senior Constables Lee, Seirota, Petheram, and Tull from the Operational Support Group. 20 According to Ryan Malcolm's statement, the team arrived, comprising about 20 persons, at 3/63 Taylor Street, Lakemba, about 2.30am. The statement reads as follows: "About 2.30am I have, along with the rest of the search warrant team, approached the front door of the premises at 3/63 Taylor Street, Lakemba. Detective Sergeant McDonald has knocked on the front door, identified himself verbally as a police officer and asked if someone could open the door. I heard a male voice from inside the premises reply...Khaled Cheikho has opened the main front door, with the security door remaining closed and locked. Detective Sergeant McDonald informed the occupants that he was a police officer and that he had a warrant to search the house... 7. Mr Cheikho opened the security door and walked out on to the landing. Two OSG officers, Detective Sergeant Gawel and myself approached Mr Cheikho. I said, 'Khaled, I'm Senior Constable Ryan Malcolm of the New South Wales Police Counter-Terrorism Command. You are now under arrest under section 101.6 of the Commonwealth Criminal Code - acts in preparation for a terrorist act. Do you understand that?' Khaled Cheikho said, 'No.' Detective Sergeant Gawel said, 'Khaled, I'm Detective Sergeant Gawel from the New South Wales Police Counter-Terrorism Command. Do you understand you are under arrest?' Khaled Cheikho said, 'No.' Detective Sergeant Gawel said, 'Do you understand you are not free to go?' Khaled Cheikho said, 'No.'" 21 In his statement Detective Sergeant Gawel said that Khaled Cheikho was then handcuffed and was surrounded by four police officers. A number of other police were standing in the near vicinity. Detective Sergeant Gawel formed the opinion that Khaled Cheikho could clearly understand him and was aware that he was not free to go. 22 Detective Gawel then said to Khaled Cheikho: "Khaled, what we intend to do is to have a female officer enter the house and get your wife and child out. Then some forensic police will enter and conduct a forensic procedure." 23 Khaled Cheikho said: "No way, get fucked, no one is going into my house, motherfucker." 24 Detective Gawel then administered the usual police caution to Khaled Cheikho. A female officer then entered the house and a short time later this officer, in company with a female and child, came out of the house. Officers Gawel, Malcolm and McDonald then entered the house and ensured that there were no other persons within the premises. They then left the house to enable forensic officers to set about starting the implementation of forensic procedures. By this time the video operator had commenced operating the video camera and statements made by Khaled Cheikho were recorded on video cassette. The transcript of the video recording statement indicates that the video-taking commenced at 2.46am. DS Gawel introduced himself and Detective Malcolm, presumably for the benefit of the video camera. At that time police officers appeared to be "frisking" the accused. The accused said, "Loosen my hands first...loosen my handcuffs before I talk." DS Gawel said the handcuffs would be loosened when they had finished the search. (This was explained later as a reference to the frisk search.) Almost immediately after the "complaint" about the handcuffs, a police officer asked the accused which handcuff felt tight, to which the accused replied "both of them". There was then a pause while the handcuffs were loosened. 25 Khaled Cheikho then said: "Let me take my glasses off, I've gotta have lenses, I can't see. I can't see with these glasses." 26 Detective Gawel said: "We can fix it up very shortly. Just wait until the handcuffs are sorted out." 27 The accused's behaviour then took a turn for the worse. Presumably he thought police were talking to one of his family members. He called out angrily: "Hey, no one can talk to her, don't talk with no slut...you leave her alone, you fuckin' dogs." 28 (During this conversation, the police were still trying to adjust the handcuffs.) 29 The accused continued his disruptive behaviour. He shouted: "Hey don't get called by a little mouth that fuckin' bitch, they're all fuckin' enemies." 30 Detective Gawel asked the accused to restrain himself but to no avail. The following conversation then occurred: " KC: Fuck you, you left me...I don't know what the fuck you're doin' in my house, you bastards. DG: Okay when your handcuffs are changed I'll explain to you. KC: I don't want to hear nothing, I'm not listening poofter. DG: ...exactly what is going on. KC: Fuck you and your John Howard, the fuckin' motherfucker. M: I've just got one more cuff to do if you just stand still, it's a bit easier for us okay and easier for you okay. KC: What are you gonna, are you gonna restrict us from hating youse, we hate youse you motherfuckers. Justify your laws you bastards. DG: Are you comfortable now, Khaled, are you comfortable? KC: Nuh, they're even tighter. DG: The police here have assured me that they're looser. KC: No they're tight." 31 In his oral evidence D S Gawel said that he looked at the handcuffs on the accused and concluded that they had been loosened, and that they were not too tight. He did not believe the accused was telling the truth when he made the second complaint about the handcuffs (transcript 2282). 32 Detective Gawel then attempted to explain the search warrant to the accused. The accused's behaviour did not improve to any marked degree during this discussion. For example, D S Gawel administered a further caution and asked whether the accused understood that. The accused responded "use what you want to use, you use it anyway you poofter". D S Gawel then explained that it would be necessary to carry out the forensic procedures before a proper search of the premises could begin. The forensic officers were identified for the video and it was shortly after this, during a lull, that the accused made the statement that is the subject of this first application for exclusion. 33 Sometime later, the handcuffs were changed once again. This time the accused was handcuffed with his hands in front of him rather than behind him. By then it was raining, and the rain increased in heaviness as the morning wore on. Detective Gawel said that he had endeavoured to keep the accused out of the rain by keeping him on the porch where he was largely under cover. The accused however, was not allowed access to the premises while the forensic team were conducting their procedures. 34 At approximately quarter past three, or perhaps a little later, D S McDonald, laboriously and slowly, read to the accused the full details of the premises search warrant. At the conclusion of the reading, D S McDonald said: "The offences to which this warrant relates are those specified above in the third condition and you actually have a copy of the warrant which dictates your rights as an occupier." 35 (The reading of the warrant had included a full reading of all the conditions, including the third condition.) 36 The conversation then continued as follows: " KC: I've got no more (ind) I've got no copy, no shit. PMC: There you go. I'm handing you a copy of the warrant. That's your copy. Further to that we also have a warrant in the same conditions to search vehicle registration number Alpha Golf 61 Juliet Echo, being a white Holden Commodore Executive, under the same conditions and under the same authorisation. Do you understand what I've read out to you? KC: I don't care. PMC: I'm sorry? KC: I don't care what youse do. PMC: Do you understand what (IND). KC: No. MMC: I'm providing you with a copy of the warrant in relation to vehicle search as well. KC: And I can't ring my solicitor? PMC: That'll be up to the investigating police and we will determine that shortly. KC: Where's your hypocrisy? DG: (ind) just (ind) here. KC: [ARABIC] (ind) real life unfortunately, seeing pigs in real life. Never had the misfortune (ind). You got 'em of all ages, shapes and sizes, species." 37 Detective Gawel said that he did not recall the last part of this conversation, but agreed that although he was there as part of the search team, he was there "to interview Mr Cheikho". He agreed Cheikho, on the video, appeared to have asked whether he could contact his solicitor. Detective Gawel indicated that his practice was that when a person is placed under arrest, he or she is conveyed back to a police station and put into custody. Once a person is lodged into custody, he is then allowed to contact support people and legal representatives. Detective Gawel said: "It was not our purpose at that search warrant to interview him, other than to simply undergo the execution of the search warrant." 38 Detective Gawel maintained that he did give the accused the right to contact friends or lawyer, but agreed this did not happen until around 7am after the accused had been taken back to the police station. He said, however: "It was not my intention to interview him at that time, nor was it an appropriate place for those conversations to occur...my recollection of those conversations was simply informing him of the processes that were occurring and to be fair to him." 39 Detective Gawel insisted that he had not deliberately refrained at the premises from telling the accused he had a right to contact a friend or a lawyer. He said it simply was not appropriate to do so at that point of time, and at that place. Detective Gawel said he specifically refrained from asking any questions in relation to the offences for which the accused was charged. Detective Gawel admitted that he was not familiar with s 23G of the Crimes Act, but he said that s 10C of the State legislation was very similar. 40 Another matter that was put to Detective Gawel in cross-examination was an examination of why it was that he did not allow the accused to be present "when the search took place". D S Gawel conceded he was not aware of the provisions of s 3P of the Crimes Act 1914 (Cth), but he said: "I gave consideration to fairness to the accused. The detention after arrest, and the current conditions under which he was situated, being outside with a great deal of rain, and it being unfair for him to remain there, not knowing how long it was going to be before we could actually execute the search warrant." 41 Detective Gawel said he had to consider the four-hour detention issue, and he also had to consider whether the accused would be charged. He had no real idea when Forensic Services would be back so they could continue the warrant. He did not know how long he would have to remain there with the accused outside. In addition, the accused indicated that he wished to go to the toilet, and wished to pray. The current situation, where he was, was not acceptable to the accused. Weighing all that up together, D S Gawel decided that the accused should be taken away from the premises, given an opportunity to go to the toilet, and to pray if he wished. He would be placed in custody and then given the opportunity to contact friends and/or a lawyer. That done, the task awaiting Detective Gawel would be to conduct an interview with Khaled Cheikho at the police station. The officer said: - "…the correct situation where he was unacceptable to him. Weighing all of that up, I thought about his concerns, and we went in favour of what was right for him". 42 The next matter to be dealt with is the situation relating to the accused's wife and child. 43 Detective Senior Constable Sharon Neil provided a statement. This officer indicated that, while forensic police were inside the premises, Khaled Cheikho was being detained by police on the driveway. At this time, investigators spoke with Cheikho, and S C Neil commenced recording the conversations by way of hand-held video recorder. The statement continues: "Sometime later Detective Senior Constable Bevern took over video recording and I escorted Khaled Cheikho's wife and child on foot to a nearby premises." 44 (These were premises occupied by Ms Wisudo's mother at Garrong Road, Lakemba). 45 DC Neil was then conveyed back to Unit 3, 63 Taylor Street by Detectives Jones and Hunt. Accompanying the women to the Garrong Street premises was Federal Agent Carolyn Moss. It was she who had first brought Ms Wisudo and her child from the house to the area of the driveway in front of the premises. 46 FA Moss' statement indicates that Ms Wisudo and her child were escorted to her mother's place at about 4am on that day. 47 In his second statement (18 August 2008) D I McDonald indicates that Ms Wisudo, her child and the accused, were outside the premises awaiting clearance from the Forensic Services Group to enable the search proper to commence. While they were awaiting this clearance, it commenced raining. Apparently, there was limited shelter at the location to provide cover from the rain. Although D I McDonald cannot recall any specific conversation with Ms Wisudo, it was determined at some point that she could attend a friend's premises nearby to shelter her and her son from the weather. The statement adds: "Given the time of night, assistance was provided by police to escort Ms Wisudo and her son safely to those premises." 48 And later the statements recites: "I recall Ms Wisudo was escorted from the premises due to concern for her and her son, due to the time of night, the inclement weather and lack of reasonable shelter and amenities". 49 So far as I am able to ascertain, the video recording does not appear to capture any conversation between the police and Ms Wisudo relating to the decision to attend her mother's premises. There is a conversation in Arabic in which Ms Wisudo told her husband "she and the child were going with the police". There is no evidence, or at least no witness has any recollection, as to whether Ms Wisudo was shown a copy of the warrant before she left the vicinity. There was a tape change at about 3.46am. There is a reference to the situation after the tape change. This appears on the video and is captured on the transcript. The transcript records the following conversation: " P McC: The time is approximately 3.50am and just for the purpose of the video - we're just going to swap video operators - we just require the services of a female officer to assist in an operational aspect of this warrant. Video is going to be taken over by detective... DB: Bevern. M: ...Bevern. Right. P McC: Khaled, just for your information, your wife and child are going to be escorted away from her around to her mother's place. You understand? It's going to be two female officers who are going to take her away. Okay? The time is approximately 3.52am." 50 The search proper began at about six minutes past five in the morning. The first area searched was the garage area attached to the unit. The independent observer, Acting Inspector Wright, was present during this part of the search. Neither Khaled Cheikho nor his wife were, by this time, present. Khaled Cheikho had been taken away at about 4.50am to Surry Hills Police Station. He was taken there by DS Gawel and other police. The transcript shows at approximately 4.40am, while the police were waiting for the forensic procedures to be finalised, Khaled Cheikho had first complained that he wanted to go to the toilet. He also said he wanted to pray. The police indicated to him that he would not be able to enter the house for these purposes, although they indicated he was free to pray outside if he wished. It was at that point of time that Detective Gawel apparently made the decision to take the accused to the police station. The transcript records on page 16 Detective Gawel saying: "We're going to take you into town. We can't have you standing out in the rain, so (ind) and you can pray here (ind) [ VOICES ARE DROWNED OUT BY SOUND OF RAIN ]." 51 It appears by 4.54am, the accused had been taken away by Detective Gawel. Forensic Services, however, were continuing with their examination of the property and the police were still awaiting for the "all clear" to commence the search. As I have said, at approximately five or six minutes past five, the "all clear" was given for the search to commence in the garage area. 52 The seizures made at the garage included a number of items, including documents in both English and Arabic. There is no need for me to detail all the documents found. They are itemised in the Property Seizure Exhibit Form as items 1 to 6 inclusive (see Exhibit "A"). A few examples will give the flavour of the first set of seizures. There were, for example, two cassette tapes marked "Basrah - the War on Terror", six pages of handwritten documents titled "The Fundamentals of Islam", documents from Sydney newspapers relating to reports on terrorism, articles written in Arabic with pictures referring to war and conflict outside of Australia, two 90 minute TDK audio tapes and an exercise book with Arabic symbols on it. Finally, mention may be made of a white plastic garbage bag containing numerous documents and books relating to "terrorism" and al-Qaeda. 53 The search of the house began shortly afterwards. The independent officer was present throughout. First there was a video walk through which gave an overall perspective of the unit. The searching officers had changed gloves, and the searching appears to have formally commenced in the house around 6am, or shortly after. D S Neil for example, found her first item at 6.19am. D C Jones made his first seizure at about 6.20am 54 Shortly before these first seizures in the house, and immediately before the overall video perspective of the unit was undertaken, D I McDonald is transcribed as saying: "...as indicated before, we don't have any of the occupiers present due to the fact that one of them has been under arrest and the, been placed under arrest, and Mrs Cheikho has declined to be present. We have the independent here with us at this time." 55 I infer from these statements, which were also captured on the video, that Ms Wisudo had been given the opportunity to be present at the search but, for perfectly understandable reasons, had declined to be present. It is proper to infer that she was concerned about her child and preferred to be with her mother in all the circumstances. The accused's mother-in-law, Rabiah Hutchinson, gave evidence on the voir dire. Ms Hutchinson confirmed that her daughter and grandchild were brought to her house in the early hours of 8 November 2005. Ms Hutchinson says this occurred at "2 o'clock in the morning", although the evidence clearly indicates that Ms Hutchinson was wrong by two hours. She lived approximately 20 minutes walk away from the accused's premises. 56 There was no suggestion in the cross-examination of Detective Inspector McDonald, or in the evidence of Ms Hutchinson, to suggest that an opportunity had not been given to Ms Wisudo as the occupier or the occupier's representative to be present during the search. I infer from the whole of the evidence that such an opportunity was presented to Ms Wisudo, but that she, for perfectly proper reasons, declined to accept the offer. Indeed, it is clear that, at the conclusion of the search, the police treated Ms Wisudo as the occupier of the premises. She was the person who was asked to, and in fact did, sign the property seizure forms. It appears, however, that prior to the accused's removal to Surry Hills Police Station, he had been treated as the occupier because he was the one served with the warrant and the occupier's rights document. The principal warrant had been carefully and laboriously read out to him, word for word. It is open to infer that Ms Wisudo would have seen and heard this procedure, or at least a considerable part of it. The accused had also been given a copy of the vehicle warrant. Detective Inspector McDonald was unable to recall however, whether Ms Wisudo had been served with a copy of the search warrant or an occupier's rights document, and it is possible, I infer, that she may not have been served. As I have said, the search of the unit commenced, in a practical sense, at about 6.20am. The video and the transcript indicate the detail of the procedures that were followed and identify also material that was seized. The full detail of this is once again contained in the Property Seizure Exhibit Form. The items seized from the house are numbered 7 to 42. 57 It seems that there was a computer specialist from the AFP present at the search of the unit. His name was Jarred Murphy. He was introduced on the video tape (see transcript page 30). D I McDonald introduces him as a computer specialist "whose task is to have a look at the computer system in the unit". During the search a hard drive was located (at 6.32am) on the bottom shelf of a bookcase in a living room extension. The Property Seizure Exhibit Form indicates that this was seized from the computer room by Officer Jones. A second computer hard drive and 33 compact discs were seized at approximately 7.23am from the computer room by Officer Hunt. Fifty-nine compact discs stored in a CD holder were also seized by Officer Neil at 7.26am. There were a further 30 compact discs in various cases seized at the same time. A third hard drive was located by Officer Neil in the children's bedroom at about 7.36am. It appears this was also seized. A fourth computer hard drive was found in the main bedroom by Officer Neil. This was seized at about 7.50am. Weaponry of various kind was found and seized, including a samurai sword and a Colt Double Eagle gas pellet firearm with silencer and other related equipment. A machete was found in the main bedroom. There were a considerable number of other documents but it is unnecessary to detail these for present purposes. A set of keys was located in the lounge room at 8.51am. Three items were seized from the motor vehicle. 58 The search concluded at about 9am. The premises were then secured. The exhibits were handed over to the Exhibits Officer and taken to his vehicle. 59 After the conclusion of the search warrant, the field Exhibit Book was taken by SC Telfer and given to the independent officer Acting Inspector Wright. It appears he examined it, no doubt to make sure that the entries in it had been made correctly. D S McDonald then made contact by phone with Ms Wisudo who directed him to the address in Garrong Street, Lakemba. Mr McDonald, Acting Inspector Wright and S C Telfer then drove to the address in Lakemba where Ms Wisudo had been taken. There is a dispute about what happened at the front door of those premises. 60 According to D S McDonald's statement: "At this time, A/Inspector Wright had with him the Field Exhibit Book. This was handed to Ms Wisudo who appeared to go through the record of the items seized. Ms Wisudo then signed the Property Seizure Form/Exhibit Form and was given a copy of the forms." 61 Acting Inspector Peter Wright made a statement on 31 December 2005. He states: "9. At the conclusion of the search of the premises I ensured that the premises was locked and secured prior to operational police leaving the scene. I then travelled to another premises not far from the site of the search, where I requested to speak with Mrs Cheikho. I was sternly informed that Islamic women do not take their husband's name. I was informed that Mrs Cheikho preferred to be addressed as 'Ms Wisudo'. 10. I then showed Ms Wisudo the entries in the Field Exhibit/Property Seizure Forms numbered A68026-A68029 and explained to her that the items recorded in that document were items of interest seized from her home in compliance with the search warrant. Ms Wisudo read each entry of the document provided and, after having checked the entries quite carefully, signed the bottom of each page of the documents acknowledging receipt of a copy of the property lists. I then countersigned each entry witnessing Ms Wisudo signature." 62 Regrettably, neither Inspector Wright nor Ms Wisudo were available to give evidence about the dispute that arose concerning these matters. The dispute centred upon the evidence of Rabiah Hutchinson, the mother-in-law of Khaled Cheikho. Ms Hutchinson gave evidence that her daughter had been quite distraught when she came to the house in the early hours of the morning. She said her grandson was "in shock". Later at about nine o'clock there was "banging on the door". Ms Wisudo said she was asked if Mrs Cheikho was there. She said she remembered very clearly that she told them that there wasn't any such person as Mrs Cheikho as Muslim women do not take their husband's name. Her daughter's name, she told the police, was Rahmah Wisudo. According to Ms Hutchinson, there were two men at the door. One was an older man with grey hair. The other one (presumably D I McDonald) did not speak. The older man said he had to speak to Ms Wisudo personally. She had covered herself (as had Ms Hutchinson) and came to the door. The transcript of 26 August 08 records Ms Hutchinson saying: "The older officer proceeded to say that he had come with her keys and he had them, the keys in one hand and some sort of pad in the other, and he said, 'If you want these' and he is jangling the keys, 'you have to sign this'. Q. What took place after that? A. When I asked him what it was, he said 'I'm not speaking to you, ma'am, I'm speaking to her.' And he said this was a list of things that were in her house and to enable her to receive the keys back, she had to sign them. Q Did she say anything or do anything after that? A. She said, 'Mama, what do I do? What should I do?' Because we'd had no previous experience with the law I told her, 'I don't really know, but if you want your keys, I suggest you sign it.' And without reading it and I remember this quite clearly, because I have very poor eyesight, I can't read without my reading glasses and my daughter has always worn contact lenses, I didn't have my reading glasses and neither did she have her contact lenses. Q. So did she sign? A. She signed it and we were given a green copy." 63 Ms Hutchinson maintained that neither she nor her daughter really understood what it was that was signed. Ms Hutchinson thought they had written everything down that was in the house. She didn't realise it was things that had been taken away and apparently belonged to her daughter and husband. Ms Hutchinson volunteered: "The copy we received was illegible. It couldn't be read." 64 Senior counsel for the Crown cross-examined Ms Hutchinson. He asked her whether she recalled the officer (at the door) saying to her daughter that those items had been seized under a search warrant that was executed on the premises. Ms Hutchinson answered non-responsively: "We actually never saw any search warrant or were given any copy of a search warrant." 65 Ms Hutchinson then denied recalling the particular statement being made by the police officer at the door. It was suggested to her that she was, in effect, not telling the truth about the alleged conversation, but she adhered to her evidence. She did not recall her daughter appearing to read the forms she had been asked to sign. She denied that her daughter "appeared to read" the documents before signing them. She agreed, however, that her daughter had asked her what she should do (as to signing the document) in the presence of the two officers standing at the front door. 66 Inspector McDonald was cross-examined about the alleged conversation at the front door. He was recalled to give evidence on 26 August 2008. 67 The relevant cross-examination is reasonably brief. It commences at transcript 2329: "Q. And you went there with Inspector Wright and Detective Telfer? A. That's correct, yes. Q. Detective Telfer had with him the property seizure exhibit form book? A. I believe Inspector Wright had custody of the book and-- Q. And the three of you went to the premises after you say you made a phone call to Ms Wisudo? A. That's correct, yes. Q. And all three of you went into the house? A. No, I believe only myself and Inspector Wright approached the front door. We didn't actually - I don't recall going into the house, no. Q. Okay. And what took place then? A. I believe, or I recall that Inspector Telfer showed Ms Wisudo the property seizure document and went through the list and asked her to sign it. Q. And did Ms Wisudo appear to read it? A. I don't recall. I believe she may have. Q. You said in your statement she handed it - Wright had it with him in his field exhibit book. This was handed to Ms Wisudo, who appeared to go through the record of the items seized? A. Yeah, that is right, yes. Q. And then she signed it and was given a copy? A. That's correct, yes. Q. Would you agree with me that the book contains different coloured pages representing copies for the occupier and copies to be maintained in the book? A. That's right, yes. Q. And do you agree that the one given to Ms Wisudo was green, does that ring a bell? A. I couldn't recall offhand at this time, no. Q. To your knowledge Ms Wisudo had exited her own premises some hours before? A. That's correct, yes. Q. And do you recall Ms Wisudo being accompanied by another woman when you were at the front door? A. I believe there was another person there, yes. Q. And were they all dressed in traditional burkas? A. I don't recall. I believe Ms Wisudo may have been. I don't know if the other person was. Q. I want to suggest to you that neither Ms Wisudo or any other woman who appeared to be occupying those premises read the exhibit form that was offered to them? A. They appeared to go through the document and look through it. Q. Can I just show you a copy of the exhibit of what is called the property seizure exhibit form in handwriting. (Document shown.) Do you recognise that as the copy of what it was allegedly shown to Ms Wisudo? A. It appears so. Q. You yourself have not signed it, although your name appears as case officer? A. No, I haven't signed that, no. Q. And there appears to be under the heading of "Occupant", Ms Wisudo has signed it, as has Mr Wright? A. Yes, that appears so. Q. On the bottom of every page? A. Yes, that's right. Q. Could you describe - was Mr Wright there when Ms Wisudo was given a copy and asked to sign? A. Yes, he was. Q. So I just may have misunderstood, was Mr Telfer there? A. No, I believe Mr Telfer remained with the exhibits at the vehicle. Q. Did Mr Wright - would you describe him as having grey hair? A. I couldn't recall. Q. But both of you were together when Ms Wisudo and the other woman were given the - or one of them was given the exhibit form? A. That's right, yes. Q. One of the items seized by the police was the set of keys for the house itself, if you go to item 43? A. It only indicates a set of keys. I can't say whether they were the keys for the house or not. Q. Did you have the keys for the house? A. No, I don't recall, from there. Q. You see, this was a raid in which you were the team leader? A. That's right, yes. Q. And I take it that the occupants were disturbed apparently in their sleep? A. It would appear so, yes. Q. Did you make any arrangements as team leader to give the keys back to the remaining occupant Ms Wisudo? A. I don't recall any arrangements that were made in that regard. Q. I want to suggest to you that either you or Mr Wright dangled the keys in front of Ms Wisudo and said if she didn't sign the property seizure form she wouldn't get the house keys? A. That's not correct. Q. You don't recall any house keys being given? A. That's what I am saying. I don't believe we had any keys, aside from the keys mentioned here. I don't recall having any keys to the premises. Q. Did you go into the premises? A. Which premises? Q. The premises where you got the form signed? A. I don't believe I did. I don't recall going in, no. Q. All this signing and handing over was all done at the front door? A. I believe so, yes." 68 Detective Inspector McDonald was unable to recall whether Ms Wisudo had been given the opportunity to come out and check the forms as against the seized material in the motor vehicle where officer Telfer was seated. 69 The submissions made by Mr Waterstreet do not precisely identify the consequences of the resolution of this dispute in the evidence. I must assume that its only significance is to point to alleged inappropriate behaviour by police officers in their conduct following the completion of the search. For that reason, it is probably unnecessary to try to resolve definitively the dispute, as it is not a critical one in the overall evaluation of the present application. In any event, endeavouring to resolve a dispute in the absence of the two principal witnesses is by no means an easy task. I will, however, venture to a number of observations. 70 With all due respect to Ms Hutchinson, I thought her evidence was more than somewhat contrived. She appeared to want to make a number of points critical of the police. They were, first, that the "dangling" of the keys was a ploy to get the documents signed. Why, one might ask, would the police need to engage in a ploy of this kind? The search had been thoroughly and carefully carried out. All the items seized were carefully itemised. It is true that the form was the wrong form, in that it was a New South Wales form rather than a Federal one, but nothing turns on that. 71 Secondly, Ms Hutchinson was keen to introduce into the evidence (although it was ultimately unsuccessful) complaints her daughter had made about the way her husband had been treated by the police. Thirdly, she was keen to paint her daughter and grandchild as severely traumatised by the whole event. Fourthly, she was at pains to emphasise that neither she nor her daughter saw the search warrant, or were given a copy of the search warrant, although this had very little, if anything, to do with the disputed factual situation involved in her evidence. It was a non-responsive answer, in any event, and could not be given any weight. Rather, I thought Ms Hutchison who is clearly a very intelligent woman, was "picking up" on some of the legal points and trying to improve them. 72 Overall, I thought Ms Hutchison presented as a strident supporter of her son-in-law's rights which she believed had been infringed, as had those of her daughter. Loyalty of this kind is, of course, understandable, but it can often lead, as I think it did in this case, to an element of exaggeration. For example, Ms Hutchinson volunteered that the copy document that they had been given was "illegible". She maintained "it couldn't be read". I took this to be a reference to Ms Hutchinson's ability to read the document when she later attempted to do so, wearing her glasses. By any test, however, the property seizure form in evidence is very carefully written out and is, by any standards, easy to read. On the assumption that Ms Hutchinson's "volunteered" comment about the illegibility of the document referred to the inability of both her daughter and herself to read it once the police had gone, it is simply impossible to accept. If she were saying that it was illegible and couldn't be read for that reason immediately it was handed over, this is quite at odds with her evidence that she didn't have her glasses on, and her daughter did not have her contact lenses inserted, at the time the document was handed over. 73 I have not had the advantage of seeing or hearing Inspector Wright give evidence. His statement, however, was in evidence by consent. It paints a very different picture concerning the events at Ms Hutchinson's home. But I would find it difficult to accept that the independent officer, whose task it was to ensure the propriety of the search, would have acted in the way described by Ms Hutchinson. But, be that as it may, I simply regard her evidence as quite exaggerated, lacking in credibility and, overall, unreliable. These observations are, of course, limited to the very narrow issue involving Ms Hutchinson's evidence in relation to the present voir dire application. They are not meant to be generally critical or dismissive of her, as indeed they could not be, given the limited nature of the dispute. I do not accept, however, that there was any inappropriate behaviour in relation to Ms Wisudo's signing of the forms at 9am on 8 November 2005. 74 It is now necessary to turn to the events at Surry Hills Police Station where the accused had been taken for his interview. 75 Khaled Cheikho arrived at the police station at about 5.18am. He was entered into custody by Detective Malcolm. There was a delay, however, before the start of the interview. This was due to the number of persons in custody and the limited number of interview rooms. Further, the police were waiting for the arrival of forensic officers to attend and undertake forensic procedures in relation to Khaled Cheikho. To enable compliance with the time constraints of the custody procedures, Detective Malcolm then applied for an extension warrant for Khaled Cheikho's detention. As a result, an extension was granted by Magistrate Albu for a further two hours. 76 Shortly after 9 o'clock that day, Detectives Gawel and Malcolm took Khaled Cheikho to an interview room. Earlier, the accused had been offered an opportunity to speak to Magistrate Albu about the proposed extension. When the phone was handed to him, he said to the magistrate "I don't want to talk to you". 77 An interview then took place, following which an independent officer queried the accused as to the propriety of the police conduct during the interview. The full text of the interview is transcribed and is part of the attachment to Detective Malcolm's statement (part of Exhibit "A"). Both a video tape and transcription of the interview are available. A caution was administered by Detective Malcolm. It may be convenient if I set out the text of a number of the questions and summary: "Q17. Before I ask you any questions, I am obliged to tell you I intend to ask you further questions in relation to this matter, but before I do, I must caution you that you do not have to say or do anything unless you wish to do so, as anything you do say or do will be recorded and may be later used in evidence. Do you clearly understand the caution I have just given you? A. Yeah. ... Q20. All right. I must inform you of the following rights. You may communicate with or attempt to communicate with a friend or relative to inform that person of your whereabouts. Do you understand that? A. Yeah. Q21. And since your time in custody, have you contacted anyone? A. Yeah. Q22. From your family? A. Yeah. Q23. And informed them where you are? A. Yeah. Q24. Do you wish to communicate with a friend or relative? A. No. Later. Or you can't any more? Q25. You may communicate with or attempt to communicate with a legal practitioner of your choice and arrange or attempt to arrange for a legal practitioner of your choice to be present during the questioning. Do you understand? A. Yeah. Q26. Do you wish to communicate with a legal practitioner? A. No. Q27. Do you agree, Mr Cheikho, that you have already spoken to a legal practitioner since you have been placed in police custody? A. Yes. Q28. Are you an Australian citizen? A. No more comments." 78 From this point on, the accused, as he was entitled to do, refused to comment, participate or answer any questions. 79 Other evidence placed before me confirmed that Khaled Cheikho had been allowed to make a number of telephone calls, and spoke to his wife and his mother. He also spoke to his legal representative, Adam Houda. 80 About 10.37am on 8 November 2005 Khaled Cheikho was escorted from the interview room to another room where a forensic procedure was conducted. A short time later the accused was returned to the Charge Room of the Sydney Police Centre where he was charged under s 101.6 of the Commonwealth Criminal Code Act and then returned to custody. 81 Two days later, in the afternoon of 10 November 2005, Detective Gawel had a conversation with Federal Agent Morley. This conversation related to extension warrants for the examination of the computers seized during the search warrants on 8 November 2005. About 3.20pm that day as a result of that conversation, Detective Gawel attended the Downing Centre Local Court together with a number of federal agents. There he made an application before Mr Peebles, an authorised justice, for an "extension of time to examine or process a thing" pursuant to s 3K(3B) of the Crimes Act 1914 for the computers that were in the possession of the New South Wales Police Force. These included four computer hard drives (Khaled Cheikho), a Toshiba laptop computer (Baladjam), a laptop and two hard drives (Elomar), a computer and tower (Jamal), two hard drives (Sharrouf) and a hard drive tower (Touma). These "applications" were granted by Mr Peebles at approximately 3.30pm on 10 November 2005. In each case the authority purported to extend time to examine or process the computers in the schedule for a period of 72 hours. So far as Khaled Cheikho's four hard drives were concerned, the application covered each of those. 82 Federal Agent Byron Morley provided a statement. He confirmed that it was he who made an appointment with the Downing Centre Local Court for the purposes of making an application for an extension pursuant to s 3K(3B) of the Crimes Act 1914. He was unable to recall the time he made this appointment. The statement continues: "5. About 12.15 on 10 November 2005, I telephoned Mr Adam Houda. I then stated to Mr Houda words to the effect that the AFP would be attending the Downing Centre Local Court to make an application to obtain an extension of time for the examination of all computers seized during the search warrants conducted on 8 November 2005. In reply, Mr Houda stated words to the effect that he had not received sufficient notice of the application to enable him to attend and consequently he would not be attending." 83 Mr Waterstreet cross-examined Federal Agent Morley about the events of 10 November 2005. As might be expected, Federal Agent Morley's recollection was hazy as to the details of the day. He was unable to recall, for example, if he personally spoke to Mr Peebles. He did not tell Mr Houda, however, the identity of the magistrate at the Local Court who would be dealing with the application and he did not tell him the time when the application would be made. He agreed he had not served on Mr Houda any application in written form as to the extension of the time. He agreed that he had not been a constable assisting in the search warrant process involving Khaled Cheikho. He believed there was an accompanying affidavit with the application for extensions of time, although he did not believe that he had mentioned the affidavit to Mr Houda when he spoke to him on 10 November 2005. He did not serve either the application or the affidavit on Mr Houda, and he was unaware whether anyone else in the AFP had done so. 84 Federal Agent Morley said that it was his understanding that he sought to extend the time for examination of the removed hard drives in order to ascertain whether there was evidential material on those hard drives. He understood that they were in the possession of either the AFP or the New South Wales Police, but he was not sure exactly where they were. His sole duty really was simply to make the application and to ring Mr Houda. He was aware that, in order to obtain an extension of time, he was under an obligation to inform the magistrate that further time was needed and the reasons why. Further, he understood that it was his task to inform the magistrate that he had told either the person whose houses were searched, the occupier, or his representative that an application was to be made. He could not, however, recall any conversations he had with Mr Peebles and accordingly was unable to recall whether he had told the magistrate that Mr Houda had said that the notification gave him "too little time". 85 Exhibit 3 on the voir dire was the affidavit of Detective Sergeant Gawel. This was a copy of the affidavit he swore on 10 November 2005 supporting the application for an extension of time in which to examine the four computer hard drives. He described himself as acting "on behalf of the executing officer under a search warrant issued under s 3E of the Crimes Act 1914 in respect of the premises at Unit C/63 Taylor Street, Lakemba, New South Wales." He said in paragraph 3: "The things described above (the four hard drives) were moved from the premises specified above on 8 November 2005 pursuant to the power under s 3K(2) of the Crimes Act 1914 to move a thing to another place for examination or processing in order to determine whether it may be seized under a warrant." 86 The affidavit continued to give a number of grounds on which it was said to be reasonable that an extension of time should be granted. The reasons essentially were the time necessary to examine the data on a modern computer hard drive, and the fact that some of the data "may need to be translated from the Arabic language into the English language". 87 Exhibit 2 was a written form of application for an extension of time in the name of Federal Agent Morley. It did not relate to the subject hard drives, but was tendered as an example of the type and form of application involved. 88 Detective Gawel was examined in relation to the application for extension. It appears that he had made a number of affidavits for presentation before Mr Peebles. These related to all of the computers, hard drives and computer towers in the possession of the police as a consequence of the search. He said that he swore them on behalf of New South Wales Police for the computers that were in New South Wales Police possession at the time. Although he had attended the search warrant process at Khaled Cheikho's premises, his role really had been in relation to the arrest and subsequent interviewing of Khaled Cheikho after he had been taken into custody. 89 Inspector Paul McDonald was also cross-examined in relation to the extension of time application. The relevant passages appear at transcript 2309, lines 3 to 55: "Q. And the product of the search was set out in the form that exhibit officer Telfer hand wrote? A. That's right, yes. Q. And that was all - all that product was taken to Bankstown, was it not? A. Yes, it was. Q. And it remained written into the exhibit book at Bankstown? A. I believe so, yes. Q. Two days later you became aware that some of the removed or seized product needed to be inspected to see if it was evidential material? A. No, I had limited involvement in the investigation following the execution of the warrant. Q. So you-- A. As I recall. Q. --so you didn't authorise anyone to make an application for extension, did you? A. Not that I recall, no. Q. I suggest to you that the only person who can make an application for an extension is the executing officer, namely you. Were you aware of that? A. No, I wasn't. Q. Did you become aware even in recent times that someone else had made an application for extension to inspect product removed from Mr Cheikho's premises? A. No. Q. You don't know one way or the other? A. No. Q. Are you aware from the documents served on Mr Cheikho that the rights of an occupier are set out on that piece of paper replicating the Crimes Act section 3H, 3K, 3L and 3L(a). They are all set out there? A. Yes. Q. As far as you are concerned as at that night, everything that was done by officers executing the warrant for which you were team leader was done pursuant to the Crimes Act, pursuant to these sections? A. I believe so, yes. Q. And if someone made an application for extension, you knew nothing about it? A. No, I don't recall being made aware of any application." 90 And then later at page 2310, lines 45 to 2311 line 47: "Q. Now on 3K, that enables equipment to be used to examine or process things, according to the heading. Do you see that? A. Yes. Q. And 3L allows electronic equipment to be used at the premises? A. Yeah. Q. It may include electronic equipment already at the premises belonging perhaps to the occupier? A. I'm not aware whether that's covered or not. Q. Can I ask you, did you bring any electronic equipment with you in order to look at any data that was kept in the premises? A. I don't recall bringing any, no. Q. You agree with me that a number of items, according to that exhibit list, were seized that included hard drives? A. I would have to check, but quite possibly, yes. Q. I don't think it's a matter of controversy. I just ask you to accept that the property list shows at least four computers/hard drives-- A. If it's recorded on the list. Q. --removed. And a number of CDs? A. Yes. Q. You would have seen that after this list was completed? A. I'm sorry? Q. You would have seen this list after it was completed? A. During and after. Q. And you would see that as it was being compiled and you are aware that those items had been listed and then removed to Bankstown? A. That's right, yes. Q. And they included the four, if the list reveals four computer hard drives, you'd accept that? A. Yes. Q. Now I take it as your understanding none of the computer hard drives were looked at at the premises? A. I don't recall them being looked at there, no. Q. So while they were at Bankstown, do I understand that you wiped your hands of it, as it were, once they were secured and written into the exhibit book at Bankstown? A. Yes. Q. So you did not tell Mr Cheikho or any representative of him that they were at Bankstown? A. If I can refer to my statement. I don't recall if I informed Miss Wisudo that the items were going to be taken to Bankstown." Q. And finally, there is an extensive line of questioning between transcript 2312 line 1 to 2315 line 4: "A. I don't believe so, no. Q. And so she was not informed where the product was taken, as far as you are aware? A. Well, I can't recall if she was or wasn't. Q. And you never took any further step to inform Mr Cheikho or anyone on his behalf where the product was? A. I didn't, no. Q. You were aware that at least a hard drive was available to be kept for only 72 hours in order to enable an inspection? A. Referring to this document, yes. Q. 3A? A. Yeah. Q. Insofar as you were the executing officer, you accept that it was your duty under 3, subs (3), 'The executing officer must, if it is practical to do so, inform the occupier of the place and time at which the examination and processing will be carried out'. Do you see, that 3A(a)? A. Yes. Q. But you didn't do it? A. No. Q. And you see 3B over the page, 'The executing officer', that's you, 'may apply to an issuing officer for an extension', but I think you have already dealt with that. You didn't do that? A. No, I didn't. Q. And again 3C, 'The executing officer must give notice to the occupier to be heard'. Do you understand that? You didn't do that? A. No. Q. And I just take you over the page. I ask you to assume that someone made an application for an extension? A. I'm unaware if that was-- Q. I just ask you to assume that. And you agree that paragraph, subparagraph 9 of section 3L suggests that: 'The provisions of the division relating to the issue of a warrant apply with such modifications as are necessary to the issuing of an extension', do you see that? A. Yes. Q. And I take it one follows the other, that if you weren't aware of the extension and the time and place where that inspection pursuant to the extension took place, you didn't tell the occupier, Mr Cheikho or anyone on his behalf, when it was inspected? A. No, I didn't. Q. Or where it was? A. No. Q. I show you a document purporting to be an affidavit by Mr Gawel. He apparently made an application. He said he made it on your behalf. You didn't instruct him to do it? Just have a look. (Document shown.) A. Yeah. WATERSTREET Q. You see, it says he was constable assisting, and on behalf of the executing officer he has to apply for an extension? A. Yep. Q. He appears to have done that of his own volition? A. I don't recall speaking to Detective Gawel in relation to this, no. WATERSTREET: I don't know if that was tendered. BELLEW: It wasn't. EXHIBIT #3 affidavit IN support of application for extension of time TENDERED, ADMITTED WITHOUT OBJECTION on the application WATERSTREET Q. In addition to the four hard drives/computers seized, there were a number of VHSs and CDs seized on the exhibit list? A. Yes, I believe so. Q Did you turn your mind to whether those CDs or VHSs themselves had to be inspected to see whether they themselves had any evidential material on them? I don't recall anything along those lines, no. Q. I understand that you, as far as the officer in charge was concerned using the New South Wales property seizure records, that what you really did was not turn your mind to the Federal Act s 3K and 3L but instructed your officers to seize material in the way that New South Wales officers seize it? A. I am unsure of what you actually mean. Q. You see, you accept that hard drives could be taken away if they haven't been inspected on the premises for the purpose of inspecting? A. Under the auspices of the warrant, yes. Q. And under the auspices of the warrants, they, in order to be retained by police, they needed to be inspected to see if they had any evidential material on them? A. I believe so, yes. Q. Do I understand that you, as the warrant holder, understood that your officers were acting pursuant to the procedures under 3K and 3L? A. Yes. Q. Did you tell them that not only hard drives and computers needed to be removed for inspection but CDs or VHSs needed to be inspected? A. I don't recall telling them that, no. Q. Did you turn your mind to it? A. I don't recall that, no." The "Statement" made by Khaled Cheikho 91 Mr Waterstreet had labelled the statement made by his client shortly after his arrest as "a rant". I prefer to describe it simply as a statement made by the accused 92 The first point argued was that the statement is not relevant to any fact in issue in the trial. Section 55 of the Evidence Act contains a broadly expressed definition of "relevance": "The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding." 93 One of the cardinal provisions in the Evidence Act 1995 is s 56. In Odgers Uniform Evidence Law 5th Edition at page 114 it is described as "the key provision regarding the admissibility of evidence" in Chapter 3. The section provides: - "56(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceedings. (2) Evidence that is not relevant in the proceeding is not admissible." 94 As is recognised and stated by the High Court in Smith v The Queen [2001] 206 CLR 650 at 653, the first question to be asked when an issue of the present kind arises is whether the evidence is relevant. Although questions of relevance may raise "nice questions of judgment", no discretion falls to be exercised. Evidence is either relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. The simple fact is that irrelevant evidence may not be received. These propositions are fundamental to the law of evidence and well settled. 95 In determining relevance in a criminal trial, it is important, and indeed fundamental to identify the ultimate issues. These will be ordinarily expressed in terms of the elements of the offence with which the accused stands charged in the light of the defence, if known. Section 55 of the Evidence Act, as I have said, states that evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. Behind these ultimate issues there will often be many issues about facts relevant to facts in issue (Smith at 654; Papakosmos v The Queen (1999) 196 CLR 297 at 307; 312 and 321-322. 96 For present purposes, the facts in issue have been identified by the Crown in the following way: The Crown must prove beyond reasonable doubt that the accused entered into the agreement alleged by the Crown with one or more other persons (physical element); that the accused did so intentionally (fault element); and that the accused, and at least one other party to the agreement, must have intended that an offence would be committed pursuant to the agreement (the intention required by s 11.5(b) of the Criminal Code Act 1995). Further, the accused, or at least one other party to the agreement, must have committed an overt act pursuant to the agreement. (Section 11.5(c) of Criminal Code Act 1995). 97 The material sought to be adduced by the Crown is, in my view, material which, if it were accepted, could rationally affect the assessment of the probability of the existence of the fault elements and the statutory intention I have identified. Section 55 of the Evidence Act is very broadly stated. It is plainly designed to capture as relevant evidence that, logically and reasonably, has the capacity to bear upon the assessment that the jury, properly instructed, will have to make in the light of the issues at trial. At the outset, it may be said that this capacity plainly appears to exist, even by way of first impression. This is so when one examines the nature of the statement and the nature of the Crown case. I have in earlier decisions set out the broad nature of the Crown case. (See R v Baladjam [No 7] at page 2). As I say, even a preliminary reading of the general nature of the Crown's case would suggest that Khaled Cheikho's statement is evidence that could rationally effect the assessment of the probability of the existence of the physical and fault elements I have identified. 98 From the analysis above, it will be seen that the Crown must prove beyond reasonable doubt that Khaled Cheikho intentionally had entered into the agreement alleged by the Crown. Secondly, Khaled Cheikho and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement. Thirdly, the agreement must be of the kind asserted by the Crown in the indictment, that is an agreement to do acts in preparation for a terrorist act or acts. "A terrorist act" is defined in s 100.1 of the Criminal Code Act. It comprehends an action or threat of action made with the intention of advancing a political, religious or ideological cause. It must also be an action or threat made with the intention of coercing the government of the Commonwealth, State, territory, et cetera, or made with the intention of intimidating the public or a section of the public. If the agreement entered into by Khaled Cheikho does not relate to acts or threats of that kind, then it is not an agreement to do acts in preparation for a terrorist act or acts. Consequently, the Crown must address not only the actual intentions of Khaled Cheikho in relation to his actions, but also whether the acts contemplated as the end point of the alleged agreement have the characteristics represented by each of the intentions referred to in s 100.1 of the Criminal Code Act 1995. 99 All this is a complicated and, no doubt, a rather long-winded way of showing that the statement made by Khaled Cheikho on 8 November 2005 is plainly relevant and therefore admissible under s 56 of the Evidence Act. 100 Mr Lange's written submissions valiantly sought to whitewash the statement so as to rob it of its natural obvious meaning. Of course, its meaning, whether it constitutes an admission, and whether it carries weight and the like is ultimately a question for the jury. The statement, however, is clearly capable of being read as a number of propositions each of which give considerable insight into the state of mind of the accused relevant to the essential ingredients of the charge against him. 101 First, the statement, if accepted, postulates that the speaker has little respect for the Prime Minister of Australia, and hence the Australian government and its laws. Secondly, it postulates that, despite his arrest in the early hours of the morning, the speaker is not put in fear by the lawful invasion of his home because of the protection of his deity, "the destroyer of infidels". Thirdly, it is capable of being read as a description of the Islamic God as the annihilator of tyrants and infidels, including the Australian government and its representatives. Fourthly, it postulates a hatred and detestation of Australian democracy and the system of government that underlines Australia ("Who do you worship, Howard...your democracy full of hypocrisy?") Fifthly, it postulates that some form of Islamic law will ultimately prevail in Australia ("Islam is going to rule this land"). The language is redolent of the medieval crusades, and hearkens back to the battle in ancient times between Christianity and Islam. Sixthly, it postulates that some version of Islamic law promises that the Muslims will eventually rule in Australia, and that the "infidels" will be put down. 102 Clearly these statements by Khaled Cheikho are relevant, not only as bearing on his own state of mind and intentions, but they are also capable of providing considerable insight into the nature of any of the actions he has carried out, including any overt acts alleged pursuant to the agreement. They are also relevant to rebut any defence that he might raise to suggest that he is no more than an adherent of a moderate Islamic cause that is opposed to the unfair treatment of Muslims in the Middle East and elsewhere. It is capable, for example, of throwing light on his possession of extremist and fundamentalist material. It is relevant, in that sense, not only as going directly to the essential ingredients of the offence, but also to rebut any proposition that he is simply an Islamic scholar interested in genuine debate about the value of democracy and, by comparison, other forms of government worldwide. It is relevant as demonstrating an attitude to jihad that embraces actual violence, as opposed to merely resolution of the inner soul and spirit, or of conflicts by peaceful means. 103 Mr Lange made two points. First, he said it was no tenet of Sharia law that it looked to the destruction of the kind stated by Khaled Cheikho. That is not to the point. It may well be that his attitude is a perversion of Islam, a perversion of Sharia law, but it is one that is well recognised as being capable of representing a modern hallmark of terrorist ideology. Second, Mr Lange pointed to the fact that the application of Sharia law has been openly and genuinely countenanced in the United Kingdom. Once again, this is hardly to the point. The statement of Khaled Cheikho (or "the rant" as his own counsel called it) is no theological discussion. More accurately, I should say that whether it is a theological discussion will be a matter for the jury, but it is certainly capable of being regarded as something much more sinister and unappealing than that. 104 I am satisfied for these reasons that the evidence is relevant, it is highly probative and is consequently admissible. It is certainly prejudicial in the sense that it may dispose the jury to find that the Crown has, together with other evidence, proved its case beyond reasonable doubt. That of course is not the unfair prejudice that is the concern of s 137 of the Evidence Act. For reasons I will give a little later in this decision, I do not consider that ss 135, 137 or 90 of the Evidence Act 1995 require the exclusion of the statement. 105 I turn then to consider s 84 of the Evidence Act. This was considered by me recently in R v Baladjam [No 44]. That decision related to an application on behalf of Omar Jamal. The principles necessary for the Court to determine whether a piece of evidence is made inadmissible by virtue of s 84 of the Evidence Act 1995 are set out in that judgment between paragraphs 11 and 16. I will set them out again in this decision. Evidence Act s 84 106 Section 84 of the Evidence Act is in the following terms: " Exclusion of admissions influenced by violence and certain other conduct (1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by: (a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person; or (b) a threat of conduct of that kind. (2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced." 107 An "admission" is defined in the dictionary. It includes a representation which is "adverse to the person's interest in the outcome of the proceedings". Accordingly, s 84 is not limited to confessions alone, but is concerned with any statement made by an accused which may be used by the prosecution to the accused's detriment, and can include a lie told by the accused and a statement which might otherwise be regarded as exculpatory (R v Esposito (1998) 45 NSWLR 442; 105 A Crim R 27; R v Horton (1998) 45 NSWLR 426; 104 A Crim R 306). 108 Section 84 replicates in part the common law concept that a confession must be voluntary before it can be admitted. Section 84, however, goes further and requires the Court to be satisfied as well that the admission is not influenced by the conduct set out in the section. 109 The thinking behind the proposal on which the provision is based is set out at ALRC 26 volume 1 para 765, page 436: "Techniques which are perceived as particularly likely to substantially impair the mental freedom of a suspect may be prohibited, and any evidence produced as a result of them excluded. If interrogators engage in acts of violence, threats of violence, torture or inhuman, degrading or oppressive conduct, then an admission made subsequent to such conduct may be untrue, regardless of the characteristics of the suspect being interrogated." 110 Where the issue is raised, the onus falls upon the Crown to prove the admissibility of the admission. The standard of proof is upon the balance of probabilities (s 142 (1) Evidence Act 1995). Consequently, the Crown must prove to the requisite standard that the conduct referred to in the section, if it occurred, did not influence the making of the admission. In R v Ye Zhang (2000) NSWSC 1099 Simpson J (at 44) observed: "...section 84 does not require the isolation of a single reason or a single event or incident or instance of conduct provoking the confession; there may be a number of factors working together, that, combined, cause the admission to be made. If oppressive conduct on the part of police is one of those factors (or, more accurately, if the Crown has failed to negative such conduct as one of those factors) then the evidence is inadmissible." 111 Simpson J's remarks were approved by Hoeben J (with whom Sully and Bell JJ agreed) in Higgins v Regina (2007) NSWCCA 56. At (26) Hoeben J said: "I accept that s 84 does not require the isolation of a single reason or a single incident of conduct provoking the confession. There may be a number of factors working together ( R v Zhang ...). I also accept that there is no definition of 'oppressive' in the Act and that the concept should not be limited to physical or threatened physical conduct but can encompass mental and psychological pressure. That said, I am firmly of the view that nothing in the bank interview, either on its own or in combination, amounted to 'oppressive conduct' as envisaged by s 84." 112 I will, for the purpose of this decision, accept that the statement made by Khaled Cheikho is capable of being an admission within the meaning of that expression in the Evidence Act 1995. This is a situation where it might clearly be said that the facts intended to be asserted by Khaled Cheikho in the representation are facts directly relevant to essential ingredients in the offence contained in the indictment. Such a situation must result in the representation not only being "adverse to the interests of the party", but one which is capable of being caught by s 59, but excepted nonetheless by s 81 of the Evidence Act. 113 Messrs Waterstreet and Lange submitted that the oppressive conduct centred upon the circumstances of the "raid" on the house, the timing of it and the fact that Khaled Cheikho would have been affronted by the situation involving his wife and child. It was exacerbated by his being held outside in the rain, in pain, not told of his rights and being manhandled in front of his wife and child, as outlined in the submissions. In addition, he was not told that he could contact a solicitor or family friend at the time he was arrested and handcuffed. 114 I have given careful consideration to the submissions made by Messrs Waterstreet and Lange on behalf of Khaled Cheikho in relation to the s 84 matter. I must say that the accused's submissions seem to me to be based on an entirely different script from that which I have examined. I accept, of course, that sudden intrusion of a significant number of police officers in the early hours of the morning would provoke distress in any citizen. So too would the fact of arrest. None of these things, of themselves, could be said to be oppressive conduct within the meaning of the section of the Evidence Act. Indeed, I would suggest that a fair reading of the transcript, and a careful examination of the video, demonstrates that, overall, the police handled a difficult situation with considerable tact and courtesy. 115 The accused was handcuffed but this, as I have said, was entirely a matter of discretion for the arresting officers. The accused's behaviour was abusive, offensive and aggressive. It justified, retrospectively, the decision to handcuff the accused. I accept that the handcuffs, when they were initially put on, were tight and uncomfortable. Almost immediately this complaint was made, the handcuffs were loosened. The accused said, after this loosening, that they were even tighter than they had been. Detective Gawel said that he examined the handcuffs and concluded that they were not too tight. He did not believe that the accused was telling the truth when he complained on the second occasion about the handcuffs. I accept this evidence. 116 Later, but not too much later, the handcuffs were changed once again. This time they were applied in such a way that the accused's hands were in front of him rather than behind him. By that time, the accused appeared to have calmed down and was, for a time, less abusive. With the cuffs in this position, the accused was able to move his hands relatively freely and to adjust his glasses as he needed to. He was able to take his glasses off and to wipe his mouth with his hands. While he was handcuffed behind his back, these movements would not have been possible, but I do not consider that his being handcuffed behind his back for a time constituted oppressive conduct. Apart from the first few minutes following the arrest and handcuffing, there were no further complaints by the accused about discomfort related to the handcuffs. 117 Very shortly after his arrest Khaled Cheikho said he could not see with the glasses he was wearing. He said "let me take my glasses off, I've got to have lenses". I am not entirely sure whether, as Mr Waterstreet submitted, this meant that the accused was unable to read with his glasses on. It may be that he had reading glasses on and wanted lenses so he could see long distances. It is by no means clear. The complaint did not appear to re-emerge again and I think little significance overall can be placed on the fact that he was not allowed into the house to get his contact lenses. As I say, there was no further complaint about this, even though a number of hours passed. He made no complaint about it when the warrant was read to him and when he was provided with a copy of the warrant. It is true that the accused was kept outside of the premises and that, after a time, it was raining very heavily. So far as I can see, the police kept him out of the rain. The rain was an uncomfortable feature of the evening that would have inflicted itself upon everybody who was involved in the search, including the police officers. I did not see any evidence to suggest that the accused's well-being was not taken into account so far as the inclement weather was concerned. 118 I reject any suggestion that there is any evidence that the accused was "manhandled", as the written submission states. Again, it is true that the accused's wife and child were taken away, but this was clearly for their benefit and well-being. I do not accept that anything the police did was unreasonable so far as the family members were concerned. The accused's attempts to stop the police talking to his wife and child were unwarranted. 119 The written submissions suggest that the accused was under extreme stress and physical restraint. It was submitted that he was significantly distressed at the sight of his wife and child being kept from him, not allowed to join him, and eventually leaving the premises. It was said that he was attempting to speak to his wife and child immediately before the impugned statement. This is true, but there is nothing in the translations from Arabic to English that supports the argument that the statement was made as a consequence of, or influenced by, oppressive conduct. The statement he made to the police was expressed very deliberately. The remarks might properly be described as a deliberate, calculated and carefully expressed opinion of a state of mind, an intention, a mindset of hostility to the government of Australia and non-Muslims generally. They were not in fact a "rant" or some type of hysterical outburst. They were, as I said, a carefully expressed statement of deeply felt beliefs. That, in any event, is the impression the video of those statements made on my mind. 120 I should make it clear that nothing I have said about my reaction to the statements or to their possible meaning is meant to imply that I think that the accused is guilty of the offence charged. My concern at the moment is strictly limited to the conversation, its relevance and its admissibility. The accused remains completely entitled to the presumption of innocence and will remain so, so far as I am concerned, throughout the trial. 121 The next submission on behalf of the accused asserts that the police breached the provisions of s 23G of the Crimes Act 1914 (C'th). This section is in the following terms: " 23G Right to communicate with friend, relative and legal practitioner (1) Subject to section 23L, if a person is under arrest or a protected suspect, an investigating official must, before starting to question the person, inform the person that he or she may: (a) communicate, or attempt to communicate, with a friend or relative to inform that person of his or her whereabouts; and (b) communicate, or attempt to communicate, with a legal practitioner of the person's choice and arrange, or attempt to arrange, for a legal practitioner of the person's choice to be present during the questioning; and the investigating official must defer the questioning for a reasonable time to allow the person to make, or attempt to make, the communication and, if the person has arranged for a legal practitioner to be present, to allow the legal practitioner to attend the questioning. (2) Subject to section 23L, if a person is under arrest or a protected suspect and wishes to communicate with a friend, relative or legal practitioner, the investigating official must: (a) as soon as practicable, give the person reasonable facilities to enable the person to do so; and (b) in the case of a communication with a legal practitioner allow the legal practitioner or a clerk of the legal practitioner to communicate with the person in circumstances in which, as far as practicable, the communication will not be overheard. (3) Subject to section 23L, if a person is under arrest or a protected suspect and arranges for a legal practitioner to be present during the questioning, the investigating official must: (a) allow the person to consult with the legal practitioner in private and provide reasonable facilities for that consultation; and (b) allow the legal practitioner to be present during the questioning and to give advice to the person, but only while the legal practitioner does not unreasonably interfere with the questioning." 122 It is common background that the accused was cautioned at least twice, and perhaps three times, before the "statement" was made by him. The complaint, however, is that Detective Gawel did not, at the time of giving these cautions, inform the accused of his rights to communicate with a friend or legal practitioner. In addition, the police did not defer the commencement of questioning until that communication was undertaken. Much was made in the submissions that Detective Gawel appeared to believe he was operating under New South Wales Police practice and was unaware of the terms of s 23G of the Commonwealth Crimes Act. He was also unaware, so it seems, of his obligation under s 3P of the Crimes Act 1914. 123 The Crown response to this argument is essentially that the obligation imposed by s 23G required the relevant entitlements to be provided to the accused, but only before Detective Gawel began to question him. Strictly speaking, I think this argument is correct. In the context of the section, the expression "questioning" should be construed as a reference to questioning the accused "in order to investigate his involvement in the commission of a Commonwealth offence" (see s 23B(6) of the Crimes Act). 124 The evidence of Detective Gawel, which I accept, establishes quite clearly that at no stage did Gawel ever commence to question the accused in that sense. The situation at the house may be well contrasted with the later situation at the police station. There the police did commence to question the accused within the meaning of s 23B(6) and, prior to so doing, the provisions of s 23G were complied with in full (this appears from the transcript of the interview with the accused and also from the statement of Ryan Malcolm in Exhibit "A"). I do not accept the submission that it was "imperative" under s 23G to inform the accused of his entitlements under that section at the time of administering the caution. Of course, Detective Gawel may have complied with s 23G at the time of administering the cautions, if he chose so to do. In my opinion, however, it was not imperative to do so, and indeed it made a lot more sense that the section was complied with at the time the police were in a position and ready to conduct the formal interview. 125 Mr Waterstreet relied on a number of authorities to support his argument relating to s 23G of the Crimes Act. The first of these was R v Pinkstone. This was a decision of a single judge (White J) in the Supreme Court of Western Australia. The decision is dated 10 March 1997 and is, as I understand it, unreported. In that decision, White J held that the evidence of what was said by the accused to the police during the execution of a search warrant at his house and office, prior to the formal records of interview, was inadmissible. This was because of the failure to comply with s 23G at the time the questioning occurred. The facts in Pinkstone's case are very different from those involved in the present situation. There, the accused had been arrested and, during the search warrant process, the accused was plainly interrogated about the alleged offence. It is perfectly clear that his Honour was correct in determining that the section had been breached. 126 By contrast, Detective Gawel was at pains not to question Khaled Cheikho either at the time of the arrest or while he was at the premises. Detective Gawel, as did Inspector McDonald, endeavoured to explain to the accused what was happening but, in my opinion, no questioning, in the relevant sense, occurred. 127 It is true that Detective Gawel made two brief "comments" during the "statement" made by Khaled Cheikho. For example, he repeated the words "Sharia law" on one occasion. This was not, however, questioning in the relevant sense, as the words had been used by the accused himself before Detective Gawel spoke. 128 Towards the conclusion of the statement the accused said (concerning Mr Howard) "Tell him Abu Mosayed is going to come and chop him up". It is true that Detective Gawel said, "Who, sorry?" And the accused repeated the name "Abu Mosayed". Once again I do not consider that the question asked by Detective Gawel constituted questioning in the relevant sense. It must be conceded that he asked the accused to repeat what he had said, but that was the limit of the question he asked. 129 Mr Waterstreet made reference to a decision of the Court of Criminal Appeal in Western Australia. This was the decision in Markovina v The Queen (1996) 93 A Crim R 149 at 172. There the Court (Malcolm CJ, Walsh and Wallwork JJ) had said (referring to s 23G and a similar provision in the Victorian legislation): "There the purpose is, in part, the protection of the individual from unfair or oppressive treatment while held in custody and, in part, the advancement of the efficient administration of criminal justice, both by minimising the possibility of a miscarriage of justice through the fabrication of police evidence, confessional statements and reducing the amount of time spent in courts in resolving disputes about whether such alleged statements had in fact been made or made voluntarily." 130 Two points may be made. First, I am satisfied that there was no unfair or oppressive treatment while Khaled Cheikho was held in custody. Secondly, the "failure" (if it be a failure) to inform him of his rights under s 23G until he was actually questioned at the police station did not, in the circumstances of this matter, constitute a matter of oppression. This is so because, firstly, the police were at pains not to question him prior to his being taken to the police station. Secondly, the fact that the s 23G entitlement was not drawn to the accused's attention until he was at the police station did not influence, in any way, the making of the statement. 131 As I have said earlier, the statement by Khaled Cheikho was entirely voluntary. It did not occur in the context of police questioning (R v Su & Ors (1997) 1 VR 1 at pages 37 and 38), again a case where the accused had been interviewed by authorities without being told his rights and without being cautioned. In that case the Court (Winneke P, Hayne JA and Southwell AJA) said at 38-39: "Section 23V of the Crimes Act makes a confession or admission by a suspect being interviewed by an investigating official inadmissible in evidence against the person unless the requirements of that section are met. There is no equivalent provision made in Part 1C for the case in which there is a failure to give the caution required by s 23F or a failure to inform a person under arrest of the rights given by s 23G. It follows, in our view, that not every failure to comply with section 23F or s 23G will necessarily mean that any subsequent interview must be excluded. No doubt the failure to comply with some other of those requirements will be a very important matter to consider in deciding whether a confession or admission obtained in breach of the provisions should be admitted in evidence. It may well be right to say that, 'as a general rule', or 'ordinarily' the confession or admission will be rejected if there has been a failure to comply with s 23F or 23G. But that will be so only if the Court considering the matter concludes that, taking account of all the circumstances, the tendering of the statement would be unfair to the accused. As we say, that will depend upon all the circumstances in which the statement was made. In our view, by his statements in Pollard (1992) 176 CLR 177, McHugh J was not intending to establish some new rule of law governing the admissibility of statements obtained in contravention of provisions like s 46(4)(c) of the Victorian Act or section 23F and 23G of the Commonwealth Act. Rather, he was doing no more than pointing to the likely consequences of a failure to comply with such provisions when a Court came to apply the well recognised discretion to reject statements obtained unfairly." 132 Once again, I repeat that, in the present matter, the police did not interview Khaled Cheikho, nor did they question him in the relevant sense, until afterwards, at the police station, they informed him of his entitlements and cautioned him once again. Failure to tell him of those entitlements at the house prior to the search warrant process had been undertaken, did not, in my view, mean that there had been a failure to comply with s 23G prior to Khaled Cheikho voluntarily making the statement he did. 133 The next matter relied on by the accused as bearing upon the possibility of oppressive conduct influencing his statement was a suggested failure by the officer in charge of the search to comply with the provisions of s 3P of the Crimes Act 1914. Reliance upon this alleged failure is principally raised under the heading of the s 138 argument that I will come to shortly. It is, however, relied on by the accused in relation to the application under s 84 of the Evidence Act 1995. It will be convenient, for that reason, to set out the provisions of s 3P at this point in the decision. The section is in the following terms: " Occupier entitled to be present during search 3P(1) If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the person is, subject to Part IC, entitled to observe the search being conducted. (2) The right to observe the search being conducted ceases if the person impedes the search. (3) This section does not prevent two or more areas of the premises being searched at the same time." 134 The factual situation, it will be recalled, is that the accused was present outside the house until about 4.50am, when he left under escort to be taken to the police station. Between the time of his arrest (at approximately 2.30am) and the time he was taken away to the police station, the search proper had not commenced. The warrant permitted the executing officer or a constable assisting to take samples of things found at the premises for forensic purposes. The forensic examination of the premises preceded the search proper. By that expression, I mean the endeavour to search the premises for evidential material as specified in the warrant and the seizure of "things of that kind" found at the premises. The search proper, as I have called it, did not commence until about 6 minutes past 5. It will also be recalled that the first area searched was the garage area, and the search of this area continued until shortly after 6am. The search proper of the house commenced shortly after that time, with the first house seizures being made at around 6.20am 135 The statement made by Khaled Cheikho, which is sought to be excluded, was made long before the commencement of any search for evidential material, either in the garage or at the house. The statement was made quite shortly after the arrest and handcuffing of the accused, not long after his wife and child had been brought out of the house into the external area near the porch and the garage. 136 As my later analysis will show, I have very considerable doubts as to whether there was a breach by the police of the provisions of s 3P of the Crimes Act, so far as the accused himself was concerned. A separate part of this decision will examine why this is so and provide reasons for this concession. But, even if I be wrong, in that regard, it is quite clear that the alleged "failure" to allow the accused into the house shortly after Officers Thompson, Rooney and Jones entered the premises to commence the establishment of the forensic procedures did not classify, and could not have been classified, as oppressive conduct within the meaning of s 84 of the Evidence Act 1995. Secondly, the alleged failure, in my opinion, could not conceivably have influenced the making of the statement which is in issue in this decision. 137 First, the police were entitled to establish a proper basis for the carrying out of legitimate forensic procedures within the house. The warrant expressly enabled the searching officers to take samples of things found at the premises for forensic purposes. Such a process was permitted by s 3F(1)(b) of the Crimes Act 1914 (Cth)). 138 Secondly, it was plainly necessary, prior to taking the swabs for forensic purposes, to ensure that no other police officers, or other persons, were inside the premises before the swabs were taken. 139 Thirdly, the procedure required the decontamination of police officers involved in the taking of the swabs prior to the commencement of the search proper. The presence of a contaminated person in the house after the procedure was implemented would have had the capacity to undermine the integrity of the process. 140 Fourthly, the passage of some time would be inevitably necessary for the preliminary testing of the swabs. It could reasonably be anticipated that the search proper would not commence until the preliminary examination of the swabs had been made and returned. 141 Finally, it was necessary that the premises be sealed and kept intact until these forensic procedures had been completed. In short, for all these reasons, the fact that neither the accused, nor any other potentially contaminated person was allowed into the premises for a period of time prior to the search, was appropriate, understandable and not prohibited by any section of the legislation. The accused may well have had legitimate cause for complaint if these procedures had not been scrupulously followed. 142 Against the background of these considerations, it can be safely said that the accused was removed from the vicinity of the premises well before the commencement of the search proper. On the assumption (which I do not accept) that Khaled Cheikho's arrest and removal from the premises to the police station contravened a right he possessed under s 3P of the Crimes Act 1914 (Cth), it is clear that, in a practical sense, the entitlement had not arisen at the time he was taken away. Moreover, he was not aware of any such alleged right. Nor, from a number of his remarks, was he interested in the procedures to be undertaken pursuant to the warrant. It is clear that his "statement" was made long before he was taken to the police station and, indeed, quite shortly after his original arrest. 143 It is simply impossible to say that any asserted breach of his rights under s 3P had a bearing on his making of the impugned statement. As I have said, the statement was a calculated and carefully phrased opinion of a state of mind indicating, as at that time, a mind-set of hostility to the Government of Australia, to non-Muslims and to the authorities who were responsible for his arrest and the proposed search of his home and car. The alleged failure to allow him to be present in the premises during the search had absolutely nothing to do with his decision to make the statement recorded in Exhibit "A". Exclusion of statement on other bases 144 I shall now turn to consider the possible exclusion of the statement under ss 135, 137 and 90 of the Evidence Act 1995. 145 Section 135 of the Evidence Act is in the following terms: " 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a part, or (b) be misleading or confusing, or (c) cause or result in undue waste of time." 146 Section 137 is in the following terms: " 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the Court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." 147 "Probative value" is defined in the dictionary to the Evidence Act in the following terms: "Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." 148 Section 137 requires a balancing by the trial judge of the probative value of the evidence against the danger of unfair prejudice to the defendant. If that balancing process results in a finding that the probative value is outweighed by the danger of unfair prejudice, the Court is constrained to refuse to admit the evidence. No element of discretion applies. 149 The section requires the Court to consider first, the probative value of the evidence. Secondly, the Court must examine the probative value of the evidence relative to its prejudicial effect to the extent that it could or would be unfair. (See R v Serratore (1999) 48 NSWLR 101; Papakosmos v R (1999) 196 CLR 297; R v Blick (2000) 111 A Crim R 326; R v E M (2003) NSWCCA 374; R v Yates (2002) NSWCCA 520 at (252)). 150 In R v Suteski (2002) 56 NSWLR 182 at 199 (116), Wood CJ at CL (with whom Sully and Howie JJ agreed) pointed out that the prejudice to the defendant of which each of ss 135 and 137 speak is not the simple fact that the evidence may advance the Crown case or weaken the defence case. Rather, it means damage to the defence case in some unacceptable way, for example, by provoking some irrational, emotional or illogical response, or by giving the evidence more weight than it truly deserves. There must be more than a hypothetical risk of it being unfairly prejudicial in this way - the risk must be a real one: R v GK (2001) 53 NSWLR 317 at 324. 151 Mr Waterstreet argued that the evidence should be excluded pursuant to ss 135 and 137 of the Evidence Act. So far as the latter section is concerned, I have rejected the argument that the statement did not have probative value. Indeed, as I have found, the statement is not only relevant, but it is highly probative. It is certainly prejudicial in the sense that it may dispose the jury to find the Crown has, together with other evidence, proven its case beyond reasonable doubt. That, of course, is not the unfair prejudice that is the concern of ss 135 and 137 of the Evidence Act. The statement will hardly endear Khaled Cheikho to the jury, but that is not because the statement is unfairly prejudicial. Its prejudicial content arises directly out of, and is at the same level as, its probative value. I am satisfied that the evidence is not unfairly prejudicial, and that its probative value is not outweighed by the danger of any unfair prejudice to the accused. Section 90 of the Evidence Act 152 The final matter affecting the statement relates to s 90 of the Evidence Act. I am not satisfied that this section has any application to the present matter. Section 90 confers a residual discretion, but the occasion for its use in relation to the present issue has simply not been established. The section has been described as a "final or safety net provision" that has operation only after the application of the more specific provisions of the Act (EM v R (2007) 239 ALR 204; (2007) ACS 46 at 109 per Gummow and Hayne JJ). I see no scope whatsoever for s 90 to be called in aid. The circumstances sought to be relied upon by the written and oral submissions of the accused simply do not raise an issue concerning unfairness to the accused in the use of the statement at trial. No circumstance, or set of circumstances, has been legitimately identified so as to suggest that, if the statement is admitted, the accused will not receive a fair trial. No circumstance, or set of circumstances, has been legitimately identified from which it can be said that the use of the evidence at trial would, in any way, be unfair. In my opinion, for these reasons also, the circumstances sought to be relied on by the accused do not trigger s 90 of the Evidence Act 1995. Breaches of Law - Section 138 Evidence Act 1995 153 As I indicated at the outset, these arguments fall into two categories. It will be convenient to deal with them separately. The first category of asserted breach is said to have infected the entire search process. The principal matters identified under this category were a failure to allow either Khaled Cheikho or his wife to be present (as occupiers) during the search (s 3P of the Crimes Act 1914); secondly, a failure to show a copy of the warrant to Ms Wisudo (s 3H of the Crimes Act 1914); thirdly, use of the wrong property seizure form; and, finally, a question mark over the service of an occupier's form. Although not put forward as a separate breach of the law, there were also the alleged inappropriate procedures adopted in relation to the signing by Ms Wisudo of the property seizure document. 154 The second category of asserted breach related to the seizure of the four computer hard drives and the CDs taken from the premises (s 3K of the Crimes Act 1914). 155 I shall deal with the first category before moving on to consider the issues relating to the computer hard drives and the CDs. The alleged breach under Section 3P of the Crimes Act 1914 156 I have earlier set out the provisions of s 3P of the Crimes Act 1914. I will not repeat them here. The accused argued that the first protection afforded to a person whose home has been invaded by law enforcement authorities, on the basis of a search warrant, is the right to observe the execution of the search warrant. It was argued that the "mere fact" of arrest does not negate the accused's right to be present. Further, the accused argued that the accused's wife was also denied the right to be present during the execution of the search warrant 157 The Crown took issue with the primary submission made on behalf of the accused. It submitted that, on the facts of the matter, the execution of the search warrant (in terms of the conducting of the search of the house) did not commence until shortly after 5am on 8 November 2005. The Crown argued that the proper construction of s 3P meant that the accused was only entitled to observe the search being conducted if he were present at the time. It could not be argued, for example, that the section should be construed to mean that the accused was entitled to be present in the house during the taking of forensic samples. Such an interpretation would obliterate the utility of that exercise. A "workable" construction of s 3P is that it must be taken to refer to the search of the premises "for the kinds of evidential material specified in the warrant" and the seizure of "things of that kind" found at the premises (s 3F(1)(c) of the Crimes Act). 158 Again, referring to the factual situation, the Crown maintained that the accused was not present during the conduct of the search proper, because he was lawfully under detention at the police station at that time. Ms Wisudo was similarly not present during this part of the search, although she had been invited to participate. The evidence established, the Crown said, that Ms Wisudo had been given the opportunity to be present, but she had declined to do so on the basis of her election to leave at an earlier time with her son. 159 Finally, the Crown pointed to the fact that the accused had stated, in unequivocal terms, that he did not care what the police did in pursuance of the warrant. It was open to find that the accused had consented to the police proceeding with the execution of the warrant, irrespective of whether or not he was present. Consequently, the Crown argued, there was no breach of s 3P and no illegality. 160 Mr Waterstreet was permitted to make some further submissions in reply. These were, as it happened, far lengthier than the original submissions. Counsel argued that the evidence established a clear breach of s 3P of the Crimes Act 1914. He referred to the evidence given by Detective McDonald at transcript 2303 line 40 - 2304 line 3. The passage in the evidence, counsel submitted, showed that D I McDonald was not aware of the provisions of s 3P of the Crimes Act, although he believed that the occupant was entitled to be present while the premises were searched. Secondly, the officer was unable to recall whether he had given such an opportunity to Khaled Cheikho. He was unable to recall whether Detective Gawel had spoken to the accused in relation to the matter. 161 Counsel also referred to the evidence from Detective Gawel in which he too said that he was not aware of s 3P of the Commonwealth Crimes Act. The officer had said that he formed the view that there was a sufficient basis to charge the accused with the offence for which he had been arrested, and he decided to take him back to the Sydney Police Centre to charge him. 162 Mr Waterstreet argued that the mere fact that D S Gawel may have wished to convey the accused to the police station at some point was not a sufficient justification for denying him the important right to ensure the proper conduct of the search. Counsel urged that a strict construction should be given to the section to protect an important right of an occupier, namely the opportunity to observe a search being conducted at his home pursuant to a warrant. 163 I turn now to resolve the issues arising in relation to this particular aspect of the application. Section 3P is by no means an easy section to construe. Its construction would be, and is, difficult, even for trained lawyers, let alone police officers, especially those involved in a massive operation such as the present one. 164 The first thing to observe about s 3P is that it does not confer an absolute right or entitlement. There are two preconditions to its operation. The first is that it has operation only "if a warrant in relation to premises is being executed". This is a broad description and, on its face, does not require an interpretation that is any narrower than the normal meaning attributed to the words used. 165 The second pre-condition or limitation is not quite so clear. The right only arises if the occupier (or another person who apparently represents the occupier) "is present at the premises". The section does not make it entirely clear whether the section is intended to operate when the occupier is present during any part of the execution of the warrant, or present only when the search is being conducted. The right, it will be recalled, is one of being "entitled to observe the search being conducted". 166 With some diffidence, I would conclude that the time frame contemplated by the section is, in fact, the period during which the search is actually being conducted. If the occupier is not present during that time, the entitlement does not arise. 167 The first reason favouring this narrower approach arises out of the juxtaposition of the two phrases. It seems to me that the legislature has selected, deliberately, a phrase that is more likely to mean being present during the actual search, rather than present at every aspect of the execution of the warrant. Not every aspect of the execution of the warrant can necessarily be described as the "search being conducted". Had the legislature wished to emphasise the broader approach, the phrase appearing in s 3P(1) could have ended with the words "observed the warrant being executed". As I have said, the legislature appears to have deliberately determined that it would not, at the conclusion of the paragraph, repeat the opening words of the section, but rather has chosen a more narrow and precise phrase, namely "to observe the search being conducted". The language chosen fits more readily the construction I favour. 168 The second reason supporting this narrower interpretation is that it sits more easily with the provisions of subs (3). That subsection contemplates the "search" of "two or more areas of the premises" "at the same time". It suggests that the section is concerned with an entitlement to observe the actual search of the premises, as distinct from an allied or preliminary procedure, such as the taking of samples of things found at the premises for forensic purposes. In other words, the entitlement arising under s 3P is principally focused upon the actual search for evidential material, or for other things found at the premises and their subsequent seizure. 169 The working and operation of subs (2) of s 3P also support this interpretation. This subsection is not, however, without its own difficulties. It appears to be a "self-executing" section. It operates where an occupier "impedes the search", rather than where a police officer believes that a person is or may be impeding "the search". The section is, however, quite peremptory. The right to observe the search simply comes to an end if the occupier or his representative impedes the search. Once again, the subsection focuses on the actual search. 170 If, in the present case, Khaled Cheikho had insisted on being allowed to enter the house during the setting up or carrying out of the forensic procedures, it would be incontestable that such an intrusion may have impeded the forensic process. That being so, the presence of the accused in the house would have automatically brought the right "to observe the search" to an end. This situation would have meant that he would not have been entitled to observe the search proper when it later commenced, had he still been at the premises. Such a conclusion appears to be unsatisfactory, but this is one of the problems the section, as a whole, raises. 171 If I am correct in relation to the narrower interpretation of the phrase "entitled to observe the search being conducted", it would follow that the accused was not present at the premises at 6am when the search was being conducted. Nor was Ms Wisudo present at that time. In those circumstances, this interpretation of the section would justify a finding that there was no breach of s 3P. 172 If I be wrong, however, in relation to the interpretation I favour, there is a third, and important, limitation imposed on the entitlement. This is that the existence of the entitlement is expressly made "subject to Part IC" of the Crimes Act 1914. ("The person is, subject to Part 1C, entitled to observe the search being conducted"). Part 1C of the legislation is concerned with the "investigation of Commonwealth offences". The introduction includes an outline of Part IC. It states: " Outline of this Part 23 (1) This Part: (a) provides for the detention of people arrested for Commonwealth offences (see Division 2); and (b) imposes obligations on investigating officials in relation to (i) people arrested for Commonwealth offences; and (ii) certain other people who are being investigated for Commonwealth offences; (see Division 3). (2) To avoid doubt, this Part does not confer power to arrest any person. (3) To avoid doubt, only a person arrested for a Commonwealth offence may be detained under this Part." 173 Although the Part does impose obligations on investigating officials in relation to people arrested for Commonwealth offences, it also provides for the detention of such persons, and generally, the investigation of serious offences. It is this aspect of detention and investigation which, in my view, has especially to be borne in mind when examining the meaning of the phrase "subject to Part IC" where it appears in s 3P of the Crimes Act. 174 For example, s 23CA provides for the period of detention where a person has been arrested for a terrorism offence. The period, in general, is for four hours after the arrest, unless the period is extended under s 23DA. The purpose of the detention is to enable the investigation of whether the person has committed the offence, or another terrorism offence that an investigating official reasonably suspects the person to have committed. Subsection (8) allows certain times to be disregarded in ascertaining the duration of the detention period. Many of the circumstances identified in subs (8) involve periods of time that may be so disregarded. Many of the circumstances assume that the detention of the arrested person will take place at a police station. 175 An extension of the investigation period where a person has been arrested for a terrorism offence is obtained, as I have said, under s 23DA. Where such an application is granted, the period of detention is extended to enable the preservation, or, the obtaining of evidence, or the completion of the investigation into the offence, or into another terrorism offence. 176 There is no need for me to set out in any detail the many obligations imposed on investigating officials in relation to persons who have been arrested and detained. They include, however, the obligation to caution persons under arrest (s 23F); the obligation to inform an arrested person before questioning of his or her right to communicate with a legal practitioner and to arrange for a legal practitioner to be present during the questioning (s 23G). There are many other obligations imposed as well. A person who is under arrest must, of course, be treated with humanity and respect for human dignity, and must not be subjected to cruel, inhuman or degrading treatment (s 23Q). 177 In my opinion, however, the words "subject to Part IC", where appearing in s 3P, are not referring principally to the numerous categories of obligations imposed on officials, although they no doubt have a part to play in the construction of the section. Rather, they are especially referring to the fact of arrest and detention, and the imposition such a situation may have on a person's continuing ability to remain at premises the subject of a search warrant, so as to observe the search being conducted. 178 In general terms, s 3P is concerned to confer a right on an occupier of premises, or another person who apparently represents the occupier of those premises. The right exists only while the occupier (or other person) is present at the premises and in a position to take up his or her entitlement to observe the search being conducted. The purpose of the words ('subject to Part 1C") in the section is to draw a distinction between a mere occupier, and one who has been arrested and, importantly, detained under Part IC. An occupier, who would otherwise be entitled to observe the search would not be entitled to do so if the circumstances related to his arrest and detention required the entitlement to take second place to the proper needs of the detention process. 179 Mr Waterstreet argued that, if such an interpretation were adopted, the entitlement under s 3P would become an "ephemeral right". I do not agree. The section confers an important right on occupiers. Those rights may have to come to an end where the dictates of arrest and detention require it. A person under arrest and in detention is not in the same position as an occupier who is at liberty. The section recognises this distinction and allows for it. The right to observe the search being conducted could not be described as ephemeral, for example, even though it will cease if the occupier or his representative impedes the search. Further, the right will not come into existence at all if the occupier happens not to be present at the premises, either when the search warrant is being executed, or, more narrowly, when the search is being conducted. 180 I accept that the entitlement conferred by s 3P is an important one, but it is not, as I have said at the outset, an unlimited one, and it is one that may not come into operation at all, or will cease to have effect in the various circumstances contemplated by the language of the section. 181 I turn to consider what happened in the present matter. First, I accept that the section was engaged. There can be no doubt that the arrival of the police officers at 2.30am on 8 November 2005 heralded and then involved the execution of the subject search warrant. Further, I accept that, at the time of his arrest, Khaled Cheikho might properly have been regarded as the occupier of the premises the subject of the warrant. 182 The actual search of the premises, however, did not take place until after 6am on 8 November 2005. That was the earliest time when the actual search of the premises commenced. Prior to that time, as the police officers told the accused, the intention was to conduct a forensic procedure within the premises before the search commenced. The forensic procedures involved taking a number of swabs from the interior of the premises. Once those swabs had been taken, the premises were to be sealed. This was to prevent anybody going into the premises until the swabs could be examined. Once the examination of the swabs had taken place, the police intended to undertake a proper search of the premises and vehicle. 183 Four police officers entered the premises some time shortly before 2.55am. Those persons had been swabbed prior to entering the premises. No police officer other than those persons had been inside the premises. 184 The forensic testing group comprised three police officers, Thompson, Rooney and Jones, who were introduced to the accused. Their task, it was stated, was to conduct the forensic procedures. There was no video taping in the premises during the forensic procedure because of concerns about contamination. 185 As it happened the forensic procedures took an inordinate time. As the hours passed it became apparent that there was no certainty as to when they would conclude. This resulted in a situation where the accused was placed in an increasingly uncomfortable position, as were the police, especially Detective Sergeant Gawel, whose task it was, ultimately, to interrogate the accused. The police believed that they were entitled to keep the accused outside the premises during the period of time involving the forensic procedures. I am not prepared to find that they were in error in this belief. I am not prepared to find that keeping the accused immediately outside the premises while the forensic procedures were carried out was a breach of s 3P of the Crimes Act. 186 This meant that the accused (and indeed the police officers) were exposed to the vagaries of the night and the impact of the elements for a period of about two and a half hours before a decision was finally made that the accused should be taken to the Police Centre. 187 It is quite apparent that, when the decision was made, Detective Sergeant Gawel had no real basis upon which he could reliably estimate how long it would be before the search proper could commence. As it turned out, the house and garage were not in fact ready for the commencement of the search proper until after 6am - over an hour after the accused left the area to go to the police station. 188 It is clear that D S Gawel's decision to take the accused to the police station was based on a number of matters. All of them, however, related to matters that arose out of his arrest and detention. First, there were the matters that related to his physical condition. He was, to a degree, exposed to the elements, and he had expressed a wish to go to the toilet. The accused also expressed a wish to be able to pray. For appropriate reasons, he could not be taken into the house for either of these purposes. 189 In addition, Detective Gawel was concerned that, even allowing for down time, the statutory period for detention and investigation was fast running out. Moreover, he did not know when the search would be able to commence. Against the background of all of these matters, the decision was made to take the accused to the Police Centre, so that his detention could continue in more appropriate circumstances, and where the interrogation could more properly take place. I infer that Detective Sergeant Gawel was particularly concerned about the running out of the detention period. 190 Mr Waterstreet sought to deride the reasoning behind D S Gawel's decision. Counsel pointed out that the accused was not, in fact, brought into an interview room for interrogation until 9am on 8 November 2005, even though he had been taken from the premises shortly before 5am. DS Gawel explained, however, that when he arrived at the police station, there was a considerable backlog and no interview room was available. Although a very large scale police operation was involved, I accept that this was something that he could not have anticipated while he was out at the Lakemba premises. 191 In short, I accept that there were a number of matters which led to Detective Gawel's legitimate decision to remove the accused from the Lakemba premises and to take him to the police station. These matters of concern, some of which focused on the accused's position as a detained person, and others which focused on Detective Gawel's difficulties as the officer responsible for the interrogation of the accused, were soundly based and warranted the decision to remove the accused to the police station. 192 Mr Waterstreet put to D S Gawel that he could have applied for an extension of time while he was at the house. The police officer ridiculed this suggestion, and rightly so, in my opinion. It was a totally impracticable suggestion, given the conditions and the overall circumstances. 193 For all these reasons, I accept that the accused's entitlement under s 3P properly took second place to these other considerations arising out of the fact of his arrest and detention. 194 Mr Waterstreet made much of the fact that neither D S Gawel or D I McDonald really knew anything of the provisions of s 3P of the Crimes Act. That is, I accept, a legitimate criticism. The officers candidly admitted that they were unaware of the provisions of the section. 195 This criticism of the police officers may, perhaps, be tempered to some degree by a consideration of two matters. First, this was a massive operation involving a huge number of officers of both State and Federal origin. Despite the briefings that took place, it is hardly surprising that State officers were unfamiliar with Federal law. I do not suggest this is a satisfactory situation, but it is, as I say, hardly a matter of surprise. Secondly, s 3P is, as this decision shows, a section that allows for a range of different interpretations. It is not an easy section to construe. 196 Be that as it may, I am satisfied that s 3P is not dependent for its operation on the police forming a belief or an opinion about whether the detention situation of a suspect requires the entitlement to come to an end. The section does not require an intermediate decision to be made before the entitlement comes to an end. It does require, however, intermediate action that is based upon the fact of arrest and detention, but otherwise the section operates according to its own terms. For this reason, the fact that neither Gawel nor McDonald were familiar with the terms of s 3P, in the circumstances of this particular matter, had, as it turned out, no adverse consequences for the situation which developed on 8 November 2005. 197 As a consequence of all the foregoing, I am satisfied that there was no breach of s 3P of the Crimes Act 1914 arising out of the fact that the accused was taken away and not present when the search was conducted after 6am. Equally, I am satisfied there was no breach involved in the fact that the accused was not permitted into the premises while the forensic procedure was being conducted, that is prior to his being removed to the police station. 198 I turn then to consider the situation of Ms Wisudo. I accept, firstly, that the section is expressed in the alternative. It contemplates that the entitlement to observe the search will reside either in the occupier of the premises, or in another person who apparently represents the occupier. The various limitations to which I have referred, of course, still have the capacity to operate where it is the alternative person's entitlement being considered. But was Ms Wisudo an alternative occupier for the purposes of the section? Certainly, the police treated Khaled Cheikho as the occupier for the purpose of serving a copy of the warrant on him. He was read the details of the warrant. Later, however, she was treated as the occupier for the purposes of signing the property seizure form. That was reasonable, of course, in that by 9am, the accused was at the police station in detention and subject to interrogation. Strictly speaking, however, the entitlement of Khaled Cheikho, as occupier, having ceased, (because of the circumstances involved in his arrest and detention situation), it may not have been the intention of the legislature that the entitlement would "switch" to another person, namely, in this case, Ms Wisudo. The position was made the more complicated, in the present matter, by the fact that Ms Wisudo had left the premises an hour before the accused was escorted away to the police station. 199 Ms Wisudo was not, of course, a person who had been arrested or detained, so that part of the section had no operation. She was present, however, during part of the time the forensic procedures were being undertaken. She too was not allowed to enter the premises during those procedures. For the reasons already stated, I do not consider that this amounted to a breach of s 3P. 200 Although s 3P is concerned with an alternative situation, it was, in my opinion, appropriate, even if not strictly necessary, that Ms Wisudo be treated as the occupier or the representative of the occupier for the purposes of s 3P. I say it was appropriate because it may be inferred that the police officers became aware of the fact that it would be likely that, as the morning wore on, it would be necessary to take Khaled Cheikho to the police station for investigative purposes. 201 In that situation, while it may not have been strictly necessary to do so, it was fair and appropriate that she was given the opportunity by D I McDonald to observe the search if she wanted to be there at the time when it was likely to commence. However, it is clear that the time of commencement was by no means certain, and that, in any event, Ms Wisudo wished to go to her mother's home in Lakemba and to take her child there. 202 As I say, it was fair and appropriate that she was given the opportunity to observe the search, but it is quite clear she declined to take up this opportunity, as she was perfectly entitled to do. A person cannot be forced to observe a search of premises as the occupier's representative if they do not wish to undertake that task. It was Ms Wisudo's choice to stay or to leave, and she made a clear choice. 203 In these circumstances, I do not consider that anything done or omitted to be done in connection with Ms Wisudo resulted in a breach of s 3P. 204 Finally, Mr Waterstreet submitted that D I McDonald had abrogated his responsibilities and that both police officers deliberately disregarded their obligations. I do not accept either of these submissions. D S Gawel was a part of the search team but his task focused more on the arrest, detention and interviewing of Khaled Cheikho. Those were his particular concerns. When Detective Gawel made the decision that the accused should be taken to the police station in all the circumstances I have outlined, no responsibility then fell upon D I McDonald to insist that the accused remain at the premises for the purposes of observing the search. The statute did not require that this be done. In any event, neither officer was, in any detailed sense, aware of the requirements of s 3P. Those actions and decisions could not, in any sense, be described as "deliberate disregard" of the statute. 205 Similarly, for the reasons I have outlined, the decision of Detective Gawel to take the accused to the police station effectively brought to an end the potential right the accused had to observe the search being conducted. It was a decision properly made on legitimate grounds. 206 In the event that I be wrong in my construction of s 3P, I will later in this decision consider the exercise of the discretion made available under s 138 of the Evidence Act 1995. Breach of section 3H of the Crimes Act 1914 207 Counsel for Khaled Cheikho have argued that there was a failure to provide the accused's wife with a copy of the search warrant. This failure, it was argued, constituted a breach of s 3H(1) Crimes Act 1914: "If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the executing officer or a constable assisting must make available to that person a copy of the warrant." 208 The written submissions on behalf of the accused placed reliance upon the remarks of the full Federal Court in Commissioner of Australian Federal Police v Oke (2007) 159 FCR 441, 449 at (39) per Branson, Lindgren and Besanko JJ: "The Crimes Act discloses an intention that non-compliance with s 3H(1) renders unlawful the execution of the warrant." 209 Other authorities have made it clear that provisions such as s 3H of the Crimes Act 1914 make it mandatory for the executing officer to make available a copy of any search warrant to the occupier of the premises. Such provisions reflect the desire to achieve an appropriate balance between a person's right of privacy and a need to facilitate the gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law (Ousley v The Queen (1997) 192 CLR 69, 111 per McHugh J). 210 The Crown, in response, has submitted that a copy of the search warrant was given to the accused at the very outset of the process. Mr Waterstreet, however, submitted that the Crown could not rely upon the service of the search warrant upon the accused himself. It was necessary that a copy of it be served on his wife as well. This was because the purpose underlying the provision in s 3H was to permit an occupier or his agent to ensure that the search warrant was being executed within its terms. It was argued that this purpose would be undermined were the police permitted to give a search warrant to an accused, and then remove him from the premises because of his detention situation. The argument proceeded on the basis that it would be then necessary to serve a second copy of the warrant on the remaining occupier or agent. 211 In his final reply submissions, Mr Waterstreet argued that the accused's wife was present when the police first attended the accused's home. Counsel submitted that Ms Wisudo remained at the home for a period of some three hours before she decided to leave. During this time, forensic officers were conducting an examination of the accused's home. It could not be contended that this process was other than part of the process permitted under the search warrant. Her presence there, during this period, required that she be served with a copy of the document. Finally, Mr Waterstreet argued that, had the authorities given the accused's wife a copy of the warrant, it was unlikely that she would have elected, as she did later, to leave the premises and go to her mother's home. 212 The resolution of this question may be dealt with quite briefly. The facts show, with absolute clarity, that the accused himself was served with a copy of the search warrant. In addition, the warrant was read to him, in circumstances where the reading of its contents would have been heard by Ms Wisudo. The transcript of the video of the search process shows DI McDonald stating; after the warrant had been read out: - "The offences to which this warrant relates are those specified above in the third condition and you actually have a copy of the warrant which dictates your rights as an occupier...there you go. I'm handing you a copy of the warrant. That's your copy." 213 The events surrounding this conversation can be clearly seen on the video footage. 214 In my opinion, the proper interpretation of s 3H of the Crimes Act is that it requires the executing officer (or a constable assisting) to make available to the occupier, if he is present, a copy of the warrant. It does not require that a copy, or copies, be made available to other people who may be present and who may later have assumed, or might be taken to have assumed, the role of a representative for the occupier. For example, if the occupier, having been given a copy of the warrant, elects to absent himself from the premises before the search is carried out, there does not appear to me to be an obligation on the police to serve another occupant, who has decided to stay behind for any purpose, including one who has decided to witness the search. The section does not create an obligation to serve any person other than the occupier, if he is present. There is no obligation to serve multiple copies on all people who may be present at the premises. Service on a person who "apparently represents the occupier" is only required where that person is present, and the occupier himself has not been served. In the present case, the occupier was properly and legitimately removed before the search proper commenced. But he had been given a copy of the warrant at the commencement of the execution process. It was up to him to give that document to his wife if he wished, or to do with it as he determined. There was no obligation on the police to do anything further to satisfy the section. 215 In any event, Ms Wisudo made her election to leave the premises well before the accused was removed to go to the police station. He remained at the premises for approximately an hour after his wife left to go to her mother's home. Consequently, Ms Wisudo was not present at the time the accused left the premises, nor was she present at the time the search proper commenced. Even if I be wrong in my construction of the section, these particular circumstances must mean that no breach of s 3H occurred. 216 Insofar as Mr Waterstreet's argument submitted that Ms Wisudo remained at the home for some three hours before she decided to leave, this is not borne out by the evidence. It is simply incorrect. She left the premises shortly before 4am. As I have said, the accused was still there at that time. As he had been given a copy of the warrant, why would there a need for her to be given a copy of the warrant at the time she made her election not to stay? She was given the opportunity to stay if she wished, but she declined to do so. 217 I have, for the purpose of this argument, made the assumption that the evidence establishes that Ms Wisudo was not given a copy of the warrant. In fact, there is considerable doubt whether the accused has satisfactorily demonstrated this to be so. The onus is on the party seeking exclusion of the evidence to establish that it was illegally obtained. Ms Wisudo did not give evidence to suggest that she had not been given a copy of the warrant. Ms Rabiah Hutchinson asserted that neither she nor her daughter had been given a copy of the warrant, but, for reasons outlined earlier, I can give no weight to her evidence on that point. 218 The overall impact of the cross-examination of D I McDonald and D S Gawel may be summarised as indicating that neither of those officers could recall Ms Wisudo having been given a copy of the warrant, but that does not prove that she did not have a copy of the document. 219 In dealing with this point, however, I have been content to assume that Ms Wisudo may not have been served with a copy of the warrant. As I said earlier, the inference that she was not served, although not a strong one, is open. I have preferred, in these circumstances, to deal with the argument on its merits, rather than on the basis of an evidentiary failure by the accused to prove the factual matter asserted to have given rise to the suggested illegality. In the event that I am wrong on the construction point, or wrong in relation to my view, the particular circumstances had on the operation of the section, I will, at a later point in this decision, consider the availability of the s 138 discretion to admit the evidence said to be affected by the breach of s 3H Other matters 220 The only other two matters falling into the first category may also be disposed of briefly. The property seizure form was, it is conceded, the wrong form. Nothing, however, turns on that fact. In any event, the warrant had been executed at that stage, so that it could not be said that the material sought to be excluded was obtained as a result of the impropriety, if it be that, in using the wrong form. 221 Mr Waterstreet's final written submission acknowledged that the copy warrant given to the accused contained a document entitled "Rights of the occupier". That being so, there is no separate point available in relation to the material served on the accused. 222 Finally, there was the "incident" at the doorway of Ms Hutchinson's home. The factual findings I have made earlier in relation to that matter demonstrate that I accept the police evidence in that regard. I reject the evidence of Miss Hutchinson. I have found that there was no impropriety involved in the process related to the signing of the property seizure form. Breach of s 3K of the Crimes Act 1914 (Cth) 223 I turn now to consider the final matter, namely, the position of those items sought to be excluded under the second category. The accused's argument focused on the taking of the four hard drives, the CDs and DVDs. 224 As I understand it, Mr Lange provided the first written reply submission which clarified and settled the basis on which this argument was ultimately made. The clarification required the accused to obtain leave to amend the notice of motion so as to include the evidence obtained from the hard drives within the relief sought in accordance with paragraph 7 of the original notice of motion. No objection was taken to the amendment of the motion in this way. 225 Mr Lange argued that the evidence established that the executing officer did not inform the accused or any representative, or other occupier, of the address of the place and the time at which the examination of the hard drives would be carried out. This was in breach of s 3K(3)(a). Furthermore, at no stage, whether before or after the purported application for an extension of the time in which to conduct the examination (at least in the case of the hard drives), did the executing officer permit the accused, his representative or any other occupier to be present during the examination of the items. This was a breach of s 3K(3)(b). 226 In respect of the hard drives, there was also a failure to comply as well with the requirements of s 3K(3C). It was alleged that adequate notice of the extension application was not given to Mr Houda, the legal representative for a number of the accused, including Khaled Cheikho. Further, the entire application for the grant of an extension of time relating to the examination of the hard drives was flawed. It was not made by the executing officer but by D S Gawel. This constituted, it was argued, a significant breach of the overall requirements of s 3K. 227 In relation to the CDs and DVDs, they were simply taken from the premises. No extension was ever applied for, let alone obtained. No notice was given to the effect that the items would be retained beyond the period permissible pursuant to s 3K(3A) and there was also a breach of s 3K(3B) in that regard. No applications were made and granted under s 3K(3)(a) and (b). It may be helpful, before setting out the Crown response, to detail the provisions of s 3K: - " CRIMES ACT 1914 - SECT 3K (1) The executing officer or constable assisting may bring to the warrant premises any equipment reasonably necessary for the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant. (2) A thing found at the premises may be moved to another place for examination or processing in order to determine whether it may be seized under a warrant if: (a) both of the following apply: (i) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance; (ii) there are reasonable grounds to believe that the thing contains or constitutes evidential material; or (b) the occupier of the premises consents in writing. (3) If a thing is moved to another place for the purpose of examination or processing under subsection (2), the executing officer must, if it is practicable to do so: (a) inform the occupier of the address of the place and the time at which the examination or processing will be carried out; and (b) allow the occupier or his or her representative to be present during the examination or processing. (3A) The thing may be moved to another place for examination or processing for no longer than 72 hours. (3B) An executing officer may apply to an issuing officer for one or more extensions of that time if the executing officer believes on reasonable grounds that the thing cannot be examined or processed within 72 hours or that time as previously extended. (3C) The executing officer must give notice of the application to the occupier of the premises, and the occupier is entitled to be heard in relation to the application. (4) The executing officer or a constable assisting may operate equipment already at the warrant premises to carry out the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant if the executing officer or constable believes on reasonable grounds that: (a) the equipment is suitable for the examination or processing; and (b) the examination or processing can be carried out without damage to the equipment or the thing." 228 The Crown accepted that the hard drives had been removed by the police for examination pursuant to s 3K(2) of the Crimes Act 1914. It argued, however, that the accused had failed to satisfy the Court that there was a causal connection between any illegality and the obtaining of the evidence sought to be excluded. In other words, the Crown argued that the police had "obtained" the evidence lawfully when the hard drives were removed from the accused's premises. If there were any failure to comply with the legislation, that occurred after the police "obtained" the evidence. 229 In relation to the alleged breach relating to the four hard drives arising from the dual requirements of s 3K(3), the Crown pointed out that the statutory obligations only arise "if it is practicable to do so". The Crown argued that the accused had not discharged the onus to make out any illegality so far as this subsection was concerned. 230 In relation to subs 3K(3B) - that is the requirement that the executing officer may apply for an extension of time - the Crown concedes that there was a technical breach in that Detective Gawel was not the executing officer as required by the subsection. The Crown submitted that the breach was not a serious one. 231 In relation to the alleged breach concerning s 3K(3C), the Crown argued that this section was complied with "in substance". Once again, the Crown submitted that the giving of notice by Federal Agent Morley to Mr Houda substantially satisfied the section and that, to the extent there was any breach, it was not a serious one. 232 I turn then to the Crown submissions relating to the DVDs and CD-Roms. The Crown posed a number of possible scenarios as to the way the evidence as to the taking of these items might be viewed. Essentially, the Crown submitted that the police had seized these items lawfully on the basis that they fell precisely within the terms of the search warrant, and thus there was no illegality. The Crown suggested, alternatively, there was a possibility that these items had been lawfully moved under s 3K(2) but that there may have been a failure, after they were taken, to obtain an extension for their examination. The Crown conceded, however, that this possibility was the least likely scenario, having regard to the evidence. Finally, the Crown allowed for the possibility that the police seizure of these items may have been done without the requisite determination that they fell within the terms of the search warrant. If that was so, it was conceded that there would have been an unlawful seizure. 233 The Crown submitted that, in relation to both the hard drives and the other items, an appropriate exercise of the discretion available under s 138 of the Evidence Act would satisfy the Court that, in all the circumstances, the desirability of admitting the evidence at trial far outweighed the undesirability of admitting evidence that had been obtained in the way in which it had been obtained. The Crown made detailed submissions about a number of the matters required to be considered under s 138(3) of the Evidence Act 1995. 234 In their reply submissions, Messrs Waterstreet and Lange took issue with each of these matters. Resolution of the issues (a) - The hard drives 235 As a consequence of an agreement between the parties, further facts in relation to the examination of the hard drives have come to light. These were reflected in the final written submissions filed on 15 and 17 September 2008. The further facts, and appropriate inferences from them, may be summarised as follows: - (i) There were four hard drives taken from the premises. They appear in the property seizure record as items 13, 20, 26 and 29 (the first two were taken from the computer room, the last two from bedrooms). The hard drives were each "examined" by officers from the State Electronic Evidence Branch on 11 November 2005, that is within the authorised extension period and during the life of the warrant. (ii) No evidential material was found on items 26 and 29. There was, however, evidential material which had been deleted, revealed on item 13. It related to bomb making and jihad. Item 20 revealed evidential material, being the Word document "virtues of martyrdom". (iii) I infer that the evidential material, having been revealed upon examination, was thereupon seized in terms of the warrant. It plainly satisfied the concept of evidential material in terms of the three warrant conditions. The seizure occurred during the authorised extension period and during the life of the warrant. (iv) The process of examination took place at Bass Hill Police Station in the presence of D S Liddiard. (v) Neither the accused nor his lawyers were present at the examination, nor were they invited to attend the examination. (vi) The material taken from the hard drives is now in the possession of the accused's legal representatives as part of the "commonalities" evidence, that is evidence the Crown will assert at trial was, as a matter of inference, shared between the accused. The duplication of the material and the fact that the accused's possession of the material, would be relied on at trial was revealed in the original brief of evidence given to the accused's solicitors prior to committal. (vii) The accused has retained an expert to advise on any technical issues relating to the contents of the two hard drives that revealed evidential material. (viii) Neither the accused, nor his lawyers, at any time have made an application for declaratory or other relief arising out of any issue connected with the irregular or illegal taking of the hard drives from the accused's home on 8 November 2005. No action to recover the four hard drives was ever taken. 236 In my opinion, the facts as stated in the earlier parts of this decision, together with the further agreed facts, show that there were a number of breaches or failures to comply with the strict requirements of s 3K of the Crimes Act 1914. First, I find that the four hard drives were not "seized" at the premises but were simply removed for the purposes of examination to see whether they contained evidential material. Secondly, although they were examined within the confines of the extension period granted by Mr Peebles, the occupier was not notified of the place and the time at which the examination would be carried out. Thirdly, because this notification did not occur, it cannot be said that either the occupier or his or her representative was allowed to be present during the examination. I do not suggest that there was any positive decision made to refuse to allow , for example, Mr Houda to be present during the examination. Rather, I find that the possibility of his attendance, or that of anyone else, was simply overlooked through inadvertence. 237 I am conscious of the argument relied upon by the Crown that the obligation to give notice only arises "if it is practicable to do so". I cannot see, however, on the facts of this matter that any officer formed the view that it would be impracticable to give notice. Rather, as I say, the process appears to have been simply overlooked through inadvertence. There would have been no difficulty involved in notifying the accused himself of the time and place at which the examination was to be carried out, even if the authorities were not prepared to allow him to attend personally. The accused may possibly have notified Mr Houda, and asked him to be present during the examination. Certainly, the evidence of Federal Agent Morley shows that Mr Houda was known to be the accused's representative at the time the examination occurred. 238 I accept the Crown submission that these particular breaches were committed in the context of a complex investigation and in a situation where the statutory provisions were themselves complex. The overall operation on the morning of 8 November 2005 would have involved many police officers, some of them Federal and some State. It is clear that such briefings as occurred did not advert sufficiently to the terms of the legislation, and this is but one instance of inadvertence during the operation leading to unsatisfactory compliance with statutory obligations. 239 I find also that there was a breach of s 3K(3)(B) in that the application for extension of time was not made by the executing officer. I regard this as something in the nature of a technical breach. There were, as I have said, a multitude of police officers involved in this massive operation. It appears that, on occasions, delegations were made without the knowledge or direct acquiescence of the delegating officer. It is clear that a direction must have been given by a senior officer or officers–in-charge of the overall coordination, and it was in those circumstances that the application for extension of time was made by D S Gawel and not by D I McDonald. Detective Gawel actually attended before Mr Peebles and obtained a number of extensions of time, including the one related to Khaled Cheikho's hard drives. Federal Agent Morley had made the appointment for the application to be made. The additional task was given to him to contact the solicitor for Khaled Cheikho, Adam Houda. Federal Agent Morley had nothing to do with the search process itself in relation to Khaled Cheikho, but had been delegated the particular task that I have identified. Mr Houda told him that he (Houda), had not received sufficient notice of the application to enable him to attend, and consequently, he would not be attending. Mr Houda did not, in fact, attend although there is uncertainty as to whether he had been told when the application was likely to be dealt with. I rather gather that he was not so told. It probably makes little difference, in one sense, because Mr Houda's peremptory indication that he would not be attending, in a practical sense, obviated the need for any further discussion with him on the point. Mr Houda did not give evidence about the conversation or his own circumstances. I imagine he was very busy on the morning of 8 November 2005, but no reason has been advanced as to why he could not have sent an employee or representative to the extension application, had it been a matter of real concern to him. 240 I am prepared to find that there was some compliance with the provisions of s 3K(3)(C) but I would not necessarily agree with the Crown that it was "substantial compliance". Once again I do not consider that this was a deliberate or calculated breach of the accused's rights or the entitlements of Mr Houda. Mr Houda's response really put paid to the prospect of any more formal notification being given to him. Criticism was made of Federal Agent Morley on the basis that he did not tell Mr Peebles of his approach to Mr Houda and the response. However, Federal Agent Morley was simply unable to recall whether he had informed the magistrate of the conversation with Mr Houda. I am not prepared to find that the magistrate was deliberately, or even inadvertently, mislead in any way. 241 In the upshot, there are three definite breaches, and one partial breach, of these provisions of the legislation. It will be necessary to return to these matters in the context of s 138 of the Evidence Act 1995. (b) - DVD's and CD-Roms 242 From my reading of the statements of the seizing officers (to which I have made reference earlier in this decision), the transcript of the search warrant and the video itself, I conclude that, overall, the police treated these items seized as evidential material falling directly within the terms of the warrant. Items of this kind were directly mentioned in the warrant (see annexure to this decision). Although the extensive briefing sessions involving the police prior to the search failed to adequately instruct all police officers as to the complexity of the Commonwealth legislation, I am prepared to infer that the significance of CD's, DVD's and computers in relation to the offences in the warrant would have been well understood by the searching officers. The transcript of the search shows that there were many instances where particular items seized were identified as having a connection with terrorism. Some, on their face, certainly did. Others, I infer, were presumed to have been so connected. It is to be inferred that this was the view taken by the seizing officers in relation to the majority of the CD's and DVD's. 243 Much has been made in the written submissions of a statement made by Inspector McDonald at transcript 23 of the search warrant process. There, after locating items in a bag, some of which clearly appeared to fall within the terms of the warrant, Inspector McDonald is quoted as saying: - "What we'll do is just seize the whole bag and let the analyst go through the whole thing". 244 This is at variance with other statements made by Inspector McDonald, and statements by other seizing officers during the search, where a more precise appreciation of a reasonable belief for it being suspected that items seized would afford evidence as to the commission of the relevant offence or offences appears. Overall, the impression I gained from all of the material to which I have made reference is that the searching officers, as well as Inspector McDonald, were putting their minds directly to the requirements of the warrant before deciding whether to make a seizure. This extended to the DVD's and CD-Roms seized. It is true that several of the disks seized had titles on them that indicated they were children's disks, but this is not to say that the officers did not consider that the items may have been falsely labelled or, at least, not accurately labelled. It needs to be borne in mind that the onus falls fairly and squarely on the accused here to demonstrate that, in the case of the DVD's and CD-Roms, the authorities failed to comply with the requirements of the warrant itself. I am not satisfied that that onus has been discharged. There is a degree of difference between the situation arising where an application is made under s 138 of the New South Wales Evidence Act to exclude evidence on the basis of impropriety or illegality, and the situation arising in a judicial review application or other proceedings of an administrative nature. Even in the latter situation, an onus still falls on the applicant in a situation where a valid search warrant is in existence (Egglishaw v Australian Crime Commission [2006] FCA 819; Williams v Keelty [2001] FCA 1301; [2001] 1111 FCR 175 at (235) per Hely J). Here, however, it is necessary for the accused to demonstrate that ss 3K(3)(a) and (b) were breached. It almost must also demonstrate that ss 3K(3)(B) and 3(C) were breached. In order to do this, it must show that the DVD's and CD-Roms were moved to another place for examination or processing, rather than seized. This, the accused has failed to demonstrate. 245 In any event, as I have said, the evidence satisfied me that the seizing officers appear to have held a qualified or preliminary opinion as to the probative effect of documents seized, and thus fulfilled their obligation of acting reasonably in all the circumstances of the case. There is no necessary inconsistency between seizing documents in circumstances where the executing officer has the belief that there are reasonable grounds for suspecting that the material will afford evidence of the commission of an offence the subject of a warrant, and that same officer (or some other officer) later coming to a conclusion, on more detailed consideration of the material that it does not, in truth, have that effect. (Harts Australia Limited & Ors v Commissioner, Australian Federal Police [2002] 117 FCR 358 at (24) per Drummond J). Although Drummond J was reversed on appeal (Hart v Commissioner, Australian Federal Police [2002] FCAFC 392, these general propositions were not called into question. Indeed, in the latter case the Court (French, Sackville & R D Nicholson JJ) observed at (68): - "Notwithstanding these general considerations, effect must be given to the importance attached by the legislature to the use of search warrants as an important and legitimate tool in the detection and prosecution of criminal offences. Where the language of the statute authorising their use offers choices between one construction requiring fine legal judgments in the issue and/or execution of warrants and another which is more likely to be consistent with operational realities then the latter construction is generally to be preferred. The need to recognise the operational realities in which warrants are executed was acknowledged by the learned primary Judge, who referred in that connection to Dunesky v Commonwealth (1996) 89 A Crim R 372, at 382-383, per Lockhart J. See also Baker v Campbell [1983] HCA 39 ; (1985) 153 CLR 52, at 83, per Mason J. The tension between the public and private interests involved in the issue and execution of search warrants was referred to by Lockhart J in Crowley v Murphy [1981] FCA 31 ; (1981) 52 FLR 123, at 141-142 (Northrop J agreeing at 132). His Honour cited the observation of Lord Cooper in Lawrie v Muir [1950] SLT 37, at 39-40: "From the standpoint of principle it seems to me that the law must strive to reconcile two highly important interests which are liable to come into conflict - (a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interests of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from Courts of law on any merely formal or technical ground. Neither of these objects can be insisted upon to the uttermost. The protection of the citizen is primarily protection for the innocent citizen against unwarranted, wrongful and perhaps high-handed interference, and the common sanction is an action of damages. The protection is not intended as a protection for the guilty citizen against the efforts of the public prosecutor to vindicate the law. On the other hand the interest of the State cannot be magnified to the point of causing all the safeguards for the protection of the citizen to vanish, and of offering a positive inducement to the authorities to proceed by irregular methods." See also Trimboli v Onley (No 3) (1981) 56 FLR 321, at 332-333, per Holland J. These remarks relate more to attacks upon the scope of warrants and action under them than to the construction of the statutes authorising the issue of such warrants. They nevertheless expose adequately the policy issues and legislative purposes which should inform construction. In particular, there is no requirement that the Court approach that task armed with a prima facie hostility to the invasion of privacy that is necessarily involved in the exercise of investigative powers. Privacy is but one of the interests to be taken into account in construing legislation authorising the exercise of such power." The application of s 138 of the Evidence Act 1995 246 I have found that a number of breaches occurred during the search process. I have also rejected the occurrence of other alleged breaches. Lest I be wrong in this latter regard, I will include a number of those in the s 138 exercise. I shall, first, catalogue the breaches. Secondly, I will identify the relevant "breaches" I have rejected. (i) Breaches relating to the hard drives (a) Breach of s 3K(3)(a) - failure to notify the occupier of the place and time at which the examination would be carried out. (b) Breach of s 3K(3)(b) - failure to allow the occupier or his representative to be present during the examination. (c) Breaches of ss 3KP(3)(B) and (3)(C) · Failure to make the application for extension in the name of the executing officer · Failure to require the executing officer to form and hold the belief that the examination could not be processed within the 72 hours originally permitted by the legislation · Failure by executing officer to give notice of the extension application to the occupier · Failure, at least in part, by Federal Agent Morley to give adequate notice to Mr Houda (ii) Breaches alleged (but rejected) affecting all items seized during the search (a) Breach of s 3H - Failure to give Ms Wisudo a copy of the search warrant. (b) Breach of s 3P - Failure to allow the accused and Ms Wisudo to be present during the search 247 Section 138 is in the following terms: " SECTION 138 Discretion to exclude improperly or illegally obtained evidence (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. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence; and (b) the importance of the evidence in the proceeding; and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and (d) the gravity of the impropriety or contravention; and (e) whether the impropriety or contravention was deliberate or reckless; and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law." 248 The Court of Criminal Appeal has itself considered the operation of s 138 of the Evidence Act in recent times. In R v Camilleri [2007] 68 NSWLR 720 (McClellan CJ at CL, Bell and Howie JJ) reinforced the views expressed by Howie J in R v EM [2003] NSWCCA 374, to the effect that s 138 is concerned with balancing public interests. McClellan CJ at CL (with whom the other members of the Court agreed) said at 727 (31): - "The fundamental concern of the section is to ensure that, if the law has been breached, or some other impropriety has been involved in obtaining evidence, this is balanced against the public interest in successfully prosecuting alleged offenders. The competing interests are obedience to the law in the gathering of evidence and enforcement of the law in respect of offenders. In R v EM (at 74), Howie J said: 'The discretion under s 138 is similar to that which was described in R v Swaffield (1998) 192 CLR 159 as the public policy discretion at common law. Of course, there is a significant difference between the discretion under s 138 and that at common law: the section requires that the Crown persuade the Court to admit evidence that was improperly or unlawfully obtained. But just as at common law, the public policy discretion was distinct and separate from the unfairness discretion, so the discretion to admit evidence under s 138 is a distinct and separate discretion from that arising under s 90. The two discretions may overlap but they are not synonymous. Section 138 is not, in its terms at least, concerned with the Court ensuring a fair trial for the accused. Certainly that is not a paramount consideration when exercising the discretion. The discretion exercised under s 138(1) seeks to balance two competing public interests, neither of which directly involves securing a fair trial for the accused." 249 Considering the matters stipulated in s 138(3), McClellan CJ at CL said at (35): "This case is to be distinguished from a situation where evidence is obtained by police in knowing breach of the law or, where they may be reckless as to whether or not it has been lawfully obtained. Where the breach of the law is innocent, and the alleged offence serious there must be powerful countervailing considerations before the evidence should be rejected. The fact that the evidence is of high probative value will weigh in favour of its admission." 250 There are several earlier first instance judgments in the Common Law Division of the Supreme Court that I have also found helpful. The first is that of Adams J in Director Public Prosecutions v Coe [2003] NSWSC 1 May 2003. In that decision, Adams J examined the common law principles, which had preceded the introduction of the section. He also examined the discussion by the Australian Law Reform Commission in its Interim Report on Evidence (No 26) of the issues sought to be addressed by s 138. Although his Honour was principally concerned with the meaning to be given to the word "obtained" in s 138(1), he also gave consideration to the general principles, which underpinned the public policy discretion, reflected both at common law and in the section of the Evidence Act. Adams J referred to a passage in Robinett v Police (2000) 78 SASR 85; 116 A Crim R 492 where Bleby J had cited Lobban (2000) 112 A Crim R 357 per Martin J (with whom Doyle CJ and he agreed). The passage is at 367 where Martin J said: - "In my opinion however the history of the public policy discretion has been centred upon the discretion being enlivened only when the evidence is obtained by unlawful, improper or unfair conduct on the part of law enforcement authorities. In identifying the rationale for the existence of the discretion, the High Court and other authorities have emphasised the importance of preventing the courts from being 'demeaned' by the use of the 'fruits of the illegality' or being used 'to effectuate the illegal stratagems of law enforcement agents or persons acting on their behalf'. The focus is thus upon bringing the administration of criminal justice into disrepute through the use of the courts in this manner. The courts have not undertaken the role of supervising the conduct of law enforcement authorities generally in circumstances divorced from any attempt by those authorities to use the courts to further the aims of their unlawful, improper or unfair conduct". 251 Adams J thought this statement of the position was "plainly correct". His Honour added however: - "But I would not interpret this passage as doing anything more than restating the principle that the courts will not allow themselves to be manipulated into condoning crimes or serious improprieties by law enforcement officers or their agents, as is made clear by the concluding sentence." 252 A second decision which I have found particularly helpful is that of Howie J in an interlocutory judgment Regina v Richard Bruce Cornwell Supreme Court, Common Law Division (unreported 20 February 2003). In that case his Honour was considering an application by the accused in that trial to hold that the evidence obtained as a result of the use of a listening device was inadmissible under s 138 of the Evidence Act. The basis of the ruling sought was that the evidence had been obtained in consequence of an impropriety by the investigating officers. The alleged impropriety was said to have been a misstatement in the affidavit in support of the warrant. 253 Howie J held that the evidence had not been obtained as a result of an impropriety and that the particular misstatement, seen in the context of the affidavit as a whole, led him to the view that all that was involved was an inadvertent mistake in an otherwise carefully drawn affidavit. His Honour held that such conduct could not alone be reasonably be regarded as improper, notwithstanding the significance of swearing an affidavit in support of a Listening Device Warrant. His Honour also found that there was no causal connection between the impropriety alleged and the obtaining of the impugned evidence. At para 20, his Honour said: - "I am of the view that, otherwise than when sub-sections 138(2) or s 139 apply, the court should determine whether the section in engaged having regard to the particular facts and circumstances before it but with due regard to the seriousness of a finding that evidence was obtained improperly or as a consequence of an impropriety and the outcome of such a finding. Not every defect, inadequacy, or failing in an investigation should result in a finding that the section applies merely because it may be considered that, as a result of those defects inadequacies or failings, the investigation was not properly conducted or that the police did not act properly in a particular respect. On the other hand the terms of sub-section 138(3)(e), which sub-section requires the court to take into account whether the impropriety or contravention was deliberate or reckless make it clear that the conduct need not necessarily be wilful or committed in bad faith or as an abuse of power". 254 To these two authorities I would also add the reference to the decisions by Johnson J, R v Petroulias [No 8] 2007 NSWSC 82 and R v Petroulias [No 9] 2007 NSWSC 84. They are to like effect. 255 I shall first consider the relevant matters dealt with under the statute in connection with the hard drive issue. 256 The first matter to be considered relates to the argument advanced on behalf of the Crown that the evidence seized from the hard drives was not "obtained in contravention of an Australian law", or "in consequence of a contravention of an Australian law". The nub of the argument advanced on behalf of the Crown was that the hard drives were taken away in conformity with s 3K(2). This proposition is plainly correct. For this reason, the Crown argued, the evidence was not "obtained" as a consequence of an illegality, even though a later illegality my have occurred. I am unable to accept this argument. As the decision of the Full Court of the Federal Court in Hart's case made clear, the removal of material under s 3K(2) is not itself a seizure under the warrant. That can only happen later after the examination or processing has taken place. In the present matter, the evidential material was "seized" on 11 November 2005. Mr Waterstreet and Mr Lange's submissions are correct, I consider, in relation to their observations concerning the Chief Justice's remarks in R v Haddad & Treglia [2000] 116 A Crim R 312 at (73 – 75). Section 3K (and its various components) clearly form part of an integrated scheme for controlling the situation where items are to be taken away for subsequent testing so that a decision can be made regarding seizure. Indeed, s 3K is part of a larger scheme, including s 3(L), that is reflected in the overall design and purpose of the Cyberspace Act 2001. The phrase "obtained in contravention" is not a term of art, as the Chief Justice observed. 257 In any event, as I have said, the factual situation is that the evidential material was not seized until after the examination had been completed on 11 November 2005. The breaches alleged under this heading all occurred prior to the seizure, not after it as the Crown had contended. 258 I turn now to consider the various matters that are required to be taken into account under s 138(3). The first of these is the probative value of the evidence. In my opinion, the evidence has a very high level of probative value for the Crown case. The accused's hard drives contained extremist material, which is capable of going directly to the accused's state of mind or intention. Secondly, the evidence will be highly important to enable the Crown to rebuff the defence case that I anticipate will be raised. This will be the suggestion that the accused's actions, and his association with the other alleged conspirators, were entirely of an innocent nature and not "extremist" at all. Thirdly, the probative value of this evidence will be especially powerful in relation to the "commonalities" analysis between the nine accused's holdings of material of a common nature. This will be strong evidence in the Crown case to suggest the very existence of the combination alleged by the Crown. It is directly relevant, and importantly so, to the existence, nature and scope of the alleged conspiracy. 259 As to the nature of the charge, it is of the highest seriousness. In Dalley and in Camilleri, the Court of Criminal Appeal has emphasised the importance of this consideration. (Mr Lange's submissions suggested that the views of Simpson J in R v Dalley ought to be afforded considerable weight. This submission ignores the fact that her Honour's decision, although informative and thorough as always, was a minority one). 260 The next matter to consider is the nature of the contraventions. It was not argued that they were deliberate. Nevertheless, substantial criticism was levelled at the police officers concerned. This is not altogether an unfair comment. The police, including New South Wales officers, should have been aware of the procedural strictures of the provisions of the Commonwealth Crimes Act. They were not so aware and this is hardly to their credit. On the other hand, as I have said in this decision and elsewhere, the operation was a massive one, and it is no surprise, although it is regrettable, that there was not a higher level of tuition and training of New South Wales Police Officers. The problems reflected by the breaches were a consequence of the nature of the operation, a lack of understanding, inadvertence and defective administrative control in a situation of urgency. 261 I do bear in mind the Crown's argument that the obligation to give notice in relation to the proposed examination of the removed material is required only "if it is practicable to do so". I cannot accept, however, as I have said earlier, that there would have been any practical difficulty in informing the accused or, for that matter, Mr Houda of the proposed examination on 11 November 2005. If Mr Houda did not wish to attend, that would have been entirely a matter for him. But the simple fact is that he was not given the opportunity and the defendant himself was not notified of the intended process. I think it was more likely that notice was not given through a lack of understanding and inadvertence, rather than as a result of any decision that it would be impracticable to give notice. 262 Whichever way the matter is examined, it cannot be said, I repeat, that the failure to give notice was either deliberate or reckless. I do not think that there was any attempt by the police to deny the accused his rights in this regard. Importantly, there has been no suggestion in the submissions that the integrity of the evidence was affected in any way by the failure of the police to give notice, or arising from the fact that there was no representative of the accused present when the examination took place. If there are to be any technical assaults on the probity of the evidence, the material is in the possession of the accused, and an expert has been retained to examine it. 263 I conclude, as I have said, that the contravention was not in any way deliberate or reckless. I would not classify the breaches as merely technical, but I do not think that they were so serious as to warrant the important evidence being excluded on the trial of this very serious offence. 264 Finally, I would conclude that there is nothing in the other sub-sections of s 138(3) that requires any specific mention. It is true that the evidence could have been obtained without contravention of the laws, had the police been properly tutored in the intricacies of the relatively new legislation. I doubt whether any proceedings have been or will be likely to be taken in relation to the contravention. Perhaps this decision will serve as a useful reminder to the police, both State and Federal, that there needs to be tuition at a high level so that police officers understand the intricacies of this rather complex legislation and, for the future, lift their game accordingly. 265 In my view, having considered all of the relevant matters, it is clear to me that the desirability of admitting the evidence plainly outweighs the undesirability of admitting it, notwithstanding the way in which it was obtained. 266 In his written submission , Mr Lange made a final plea placing emphasis on the remarks of Gummow J in New South Wales v Corbett [2007] 230 CLR 606, 612 at (22). Gummow J had emphasised that one reason for a strict construction of the rules relating to a search warrant was "the beneficial control of the agents of the State because of their awareness that they would be held to conformity with strict rules whenever they conduct a search". This is a fair point for counsel to make, but it needs to be borne in mind that the exercise under s 138 requires an accommodation between two conflicting principles that are strongly pitted against each other. On the one hand, there is the need to ensure that privacy and ownership are not unfairly invaded. On the other hand, there is recognition that where evidence is available, particularly in relation to a very serious offence, it should be used to prosecute those charged with such an offence. The evaluation of which of these principles is to prevail in any given situation is often difficult. The statutory test under s 138 places the matters in the balance, recognising the type of point emphasised by Gummow J in New South Wales v Corbett. In my view, however, the balance in the present matter, for the reasons I have given, ought plainly to be tilted in favour of admitting the evidence. 267 I take the same ultimate view in relation to the failures arising under ss 3K(3)(B) and (3)(C). I would regard the breaches in relation to these sections as generally more of a technical nature. While it is true that the executing officer is required to form the necessary belief on the reasonable grounds referred to in the section, and while it is he who must apply for the extension and give notice of it, it is very clear that a police operation has to be a coordinated one when it is on such a massive scale as was the present one. A police officer, in the position, for example, of D I McDonald, had spent many hours before the commencement of the search getting ready for it. He was required to be on duty for many hours during the search. There would have been other police officers attending a multitude of premises that had to be searched on that evening, all of whom would have found themselves in the same unenviable position. The night was a long one for all concerned, including no doubt the accused and Mr Houda. The coordinating presence of which I have made mention arrived at the necessary decisions to make application for extensions of time where those were necessary. D S Gawel was the one whose task it was, in the ultimate, to make the applications. As I have said, the failure to insist that D I McDonald make these applications was a technical matter and not one that warrants any substantial criticism. 268 The position with Federal Agent Morley is perhaps, to a degree, different. I do not think that Mr Morley adequately dealt with the situation he was confronted with when he spoke to Adam Houda. Even though Mr Houda was dismissive of attending the application, Morley should have insisted on giving him better details than he did about the proposal. I accept, however, that Federal Agent Morley has little recollection of the conversation, beyond the details contained in his diary note. Mr Houda was not called but I rather imagine he would have little recollection of the conversation either. Notice was given to Mr Houda that an application would be made for an extension but it does not seem that he was told when or where the application was to be dealt with. These details, it must be said, did not appear to be of any particular import as he had clearly made up his mind that he would not attend in any event. There was, notwithstanding, a failure to comply satisfactorily with the sub-section. It was no mere technicality, but I do not think it was a failure of any great substance. I accept that the contravention of the section was not deliberate or reckless. It was not motivated by any plan to take an unfair advantage of Mr Houda or his client. 269 In all other respect, I would make the same findings about the probative value of the evidence, the importance of the evidence and the nature of the relevant offence that I referred to in dealings with the earlier breaches. I am satisfied, in terms of s 138, that the evidence should be admitted. The desirability of it being admitted outweighs, to my mind, the undesirability of admitting it, flowing from the nature of the breach involved. 270 I move next to deal with those alleged breaches, which I have rejected. Here, I should make it clear I am only dealing with those where the suggested breach may arise if I am wrong in my interpretation of the relevant sections. That is why I have confined myself to the alleged breaches said to arise under ss 3H and 3P of the Crimes Act 1914. 271 I think it would be merely repetitious if I were to repeat some of my earlier observations about the alleged failure to provide Ms Wisudo with a copy of the search warrant. If she were entitled to have a copy of the warrant, the failure to do so simply arose out of inadvertence and of course, from a lack of knowledge of the requirements of the legislation. As I have said earlier, the legislation is by no means clear. Of course, D S Gawel was unaware of the provisions of the legislation and D I McDonald was, it appears, none too familiar with its detail. Nevertheless, any failure was, as I have stated, really based on both a lack of understanding and inadvertence. It was certainly not deliberate, and I do not regard it as reckless. 272 Some of the evidence seized at Khaled Cheiko's home included the following: (i) A book entitled "The Layman's Guide to a Electronic Eavesdropping" by Thom Larsen (ii) Numerous sources of information in relation to electronics and the setting up of electric circuits using batteries (iii) The keys to Musso motor vehicle ATN.4ON. (This was an abandoned vehicle, registered in the name of another, but in which there were items associating with camping and which implicated a number of the accused) (iv) Electronic circuit boards wrapped in plastic (v) Receipts from Harrison's Timber & Hardware for the purchase of two large-scale storage containers. (These items have never been recovered by the police) (vi) Military instructions for Mujahadeen in Iraq, and introduction to military education, material, which dealt with different stages in military mobilization and operational techniques. (vii) Training manuals for AK47 weapons (viii) One Samurai sword (x) One gas pellet firearm with magazines/silencer (xi) One machete (xii) One Colt cap gun (xiii) A mobile phone connected in a false name (xiv) There were also the hard drives, the DVD's and CD- Roms 273 These items, in one sense, have differing degrees of probative value. In a circumstantial case such as the present, it is not useful to separate out individual items and to discuss the probative value of each item. Overall, it can be seen that the probative value of the material supports fully the Crown's circumstantial case. I would assess the probative value of the material as quite high. Secondly, it is material that plainly is important in the overall Crown case. Although I have found that there was no breach in each instance, if I be wrong in my interpretations of the section, the breach was not of a serious kind. It was not deliberate and it was not reckless. 274 The same comments may be made about the alleged failure to allow the accused and Ms Wisudo to be present during the search. They were both present outside the house while the forensic procedures were set up. Khaled Cheikho was removed for reasons legitimate to his arrest and detention. Ms Wisudo was given the opportunity to be present during the actual search but declined to accept the invitation. Neither occupant was present at the time the search proper commenced. Ms Wisudo was later treated as the occupier and given the opportunity to scrutinise the list of items seized. The searching of the house was properly videotaped. 275 The desirability of admitting the evidence I have identified, together with the evidential material later seized on the hard drives, clearly outweighs the undesirability of admitting the evidence based on the breaches alleged under ss 3H and 3P of the Crimes Act 1914. 276 I dismiss the Notice of Motion dated 4 July 2008. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.