New South Wales Supreme Court CITATION : Regina (C'Wealth) v Baladjam & Ors [No 32] [2008] NSWSC 1454 HEARING DATE(S) : 16/07/08 JUDGMENT DATE : 22 July 2008 JURISDICTION : Criminal JUDGMENT OF : Whealy J at 1 DECISION : Motion dismissed. CATCHWORDS : CRIMINAL LAW -Refusal to take part in identification parade - Relevance - CRIMINAL LAW - Failure to caution accused before questioning - Failure to inform suspect of right to contact police friend or relative - Extremist statement in terrorism trial - Scope and Relevance. LEGISLATION CITED : Crimes Act (Cth) 1914 Evidence Act 1995 McCarthy & Ryan (1993) 71 A Crim R 395 at 404 R v Andrew Timothy Davies [2005] 11 VR 314; [2005] 153 A Crim R 217 CASES CITED : Petty v The Queen (1991) 173 CLR 95 R v Reeves (1992) 29 NSWLR 109 R v Ronen (unreported) 12 August and 10 November 2004 Regina (C'Wealth) v Omar BALADJAM [No 32] Regina (C'Wealth) v Khaled CHEIKHO Regina (C'Wealth) v Moustafa CHEIKHO Regina (C'Wealth) v Mohamed Ali ELOMAR PARTIES : Regina (C'Wealth) v Abdul Rakib HASAN Regina (C'Wealth) v Mohammed Omar JAMAL Regina (C'Wealth) v Mirsad MULAHALILOVIC Regina (C'Wealth) v Khaled SHARROUF Regina (C'Wealth) v Mazen TOUMA FILE NUMBER(S) : SC 2007/2397001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; 2007/2396001; 2007/2455001 W Abraham QC; 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 G Scragg; D Carroll - Accused Jamal G Turnbull SC; A Djemal - Accused Mulahalilovic W Brewer; M Pickin - Accused Sharrouf S Hanley; - Accused Touma Commonwealth DPP Greg Walsh & Co - Accused Baladjam Lawyers Corporation Ltd - Accused K Cheikho William O'Brien & Ross Hudson Solicitors - Accused M. Cheikho SOLICITORS : Nyman Gibson Stewart - Accused Elomar Legal Aid Commission - Accused Hasan Michael Doughty Solicitor - Accused Jamal Matouk Joyner Lawyers - Accused Sharrouf Lawyers Corporation Ltd - Accused Mulahalilovic Burke & Elphick Lawyers - Accused Touma - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST WHEALY J PARRAMATTA: TUESDAY 22 July 2008 2007/2397001 - Regina v Omar BALADJAM [No 32] 2007/2395001 - Regina v Khaled CHEIKHO 2007/2398001 - Regina v Moustafa CHEIKHO 2007/2399001 - Regina v Mohamed Ali ELOMAR 2007/2400001 - Regina v Abdul Rakib HASAN 2007/2452001 - Regina v Mohammed Omar JAMAL 2007/2454001 - Regina v Mirsad MULAHALILOVIC 2007/2396001 - Regina v Khaled SHARROUF 2007/2455001 - Regina v Mazen TOUMA JUDGMENT - Application by accused Jamal to exclude evidence – Identification parade – Conversation held without caution – Accused not advised of rights 1 HIS HONOUR: There are before the Court a number of applications to exclude evidence. These applications are brought on behalf of Omar Jamal. First Issue 2 The first issue relates to three questions and answers (Q86-Q88 inclusive) in a record of interview between Detective Sergeant Moroney and Jamal conducted on 21 December 2005. They are in the following terms: "Q. 86 And you mentioned you work in computers, what type of work in relation to computers do you do? A. Technician. Q. 87 Technician? A. Yeah, I'm not like qualified or anything but I just know a bit about computers. Q. 88 And is that just through your own self education? A. Yep." 3 The Crown has submitted that Mr Jamal's interest and expertise in relation to computers is a matter that is generally relevant in relation to certain aspects of the Crown case. On reflection, Mr Scragg conceded that this may be so, but asked that the particular issue be left for further negotiation between the Crown and himself. I agreed to this course, so there is no need for me to take the matter further at this stage. Second Issue 4 Mr Scragg wishes to exclude evidence of answers given to questions 39 and 40 on page 4 of the record of interview between Detective Senior Constable Liddiard and Omar Jamal conducted on 8 November 2005 (Exhibit "A"). The questions and answers are in the following form: "Q. 39 All right. I'm now going to explain what an identification parade is, for your information, and we would line you up with a number of people of similar appearance to yourself and we would have a witness see if they can identify you in relation to that incident. You don't have to participate in an identification parade as any evidence obtained in that identification parade may be later used in Court, do you understand that? A. Yes, well, I don't, don't want to accept. Q. 40 You don't want to take part in an identification parade? A. I don't want to take part at all." 5 In its submissions, the Crown indicated that, since there would be a general attack on the reliability of the identification evidence to be tendered by the Crown, it wished to place before the jury, either by tendering the two questions and answers from Exhibit "A", or by way of an agreed fact, that Jamal had been invited to participate in a lineup but, in accordance with his entitlement to do so, had declined to participate. 6 Mr Scragg sought to oppose any mention of Jamal's participation in a line-up. In particular, he opposed the jury being told that his client had declined to take part in an identification parade. (Later, Ms Yehia, on behalf of her client Hasan, indicated that she also supported Mr Scragg's position, insofar as her client had been involved in identification procedures). 7 Mr Scragg tendered Exhibit 1. This was the statement of Detective Sergeant Nicholas Read. It demonstrated that, at about 12.20pm on 8 November 2007, DS Read spoke to the solicitor for the eight accused in custody at that time. This was a reference to Mr Adam Houda. The statement indicates that Detective Sergeant Read was informed by Mr Houda that the latter intended to advise all of the accused to refuse participation in any identification parade or parades. 8 Mr Scragg made three points. First, he indicated that there would be no suggestion made by him before the jury that the police procedure was in any way flawed by a failure to have or hold an identification parade relating to his client. Secondly, Mr Scragg argued that any mention of the relevant conversation would carry with it a criticism of his client or, at least, convey an inference unfavourable to his client. 9 Mr Scragg suggested that a similar situation might arise in relation to his client's refusal to participate in a record of interview. Although Mr Scragg, in this regard, suggested that a direction to the jury that his client was entitled to exercise his right to silence would be appropriate, he opposed the inclusion of any evidence to indicate that his client had declined to take part in an identification parade. 10 Thirdly, Mr Scragg disputed the Crown's assertion that evidence of this kind was frequently placed before juries. 11 None of the parties, during oral submissions, referred me to any authorities on the point. As I said during argument, the point is a small but important one. Before resolving the issue, I would like to make a preliminary point. The Court has now been engaged on an intensive series of pre-trial applications for approximately five months. I should record that, generally speaking, I have found the diligence of counsel, both Crown and defence, of considerable assistance in relation to deciding a number of difficult questions. In the main, submissions have been thorough and well researched. The Court has been provided with authorities where they have been likely to assist the Court in coming to a decision. I have very much appreciated that assistance. 12 In this particular matter, by way of contrast, I have had to research the point for myself after the conclusion of oral submissions. Where the Court does not have the full assistance of counsel in this way, errors can be made and matters of importance can be decided without the assistance of relevant authority. My remarks here are directed to both the Crown and the defence. I would exhort the parties to maintain the highly professional standards that have been evident to date. I would urge counsel to research any point in issue prior to submissions, and to provide the Court with those authorities if they may be of assistance. 13 I return to the point at issue. There is a body of authority on the point. In my view, that authority favours the Crown position in relation to the present dispute. 14 In McCarthy & Ryan (1993) 71 A Crim R 395 at 404 the Ndew South Wales Court of Criminal Appeal addressed a trial judge's decision to admit into evidence the fact that the accused had declined to participate in an identification parade. Hunt CJ at CL (with whom Wood and Smart JJ agreed) said: "The next complaint in relation to evidence was the admission of the fact that McCarthy had declined to participate in an identification parade. The evidence was clearly admissible, to enable the Crown to explain why evidence which the jury may well have expected to be led was not being led: CF Claridge (unreported) Court of Criminal Appeal NSW, 15 May 1992, pages 12-13. The practice of holding identification parades is well known within the community. The Crown was not obliged to wait for McCarthy to raise some issue about such a parade before it was entitled to explain its absence. Otherwise, if an accused remained silent and nothing is said about it, the jury may well draw an inference adverse to the Crown: CF Reeves (1992) 29 NSWLR 109 at 115. When such evidence is given, however, the Judge should give a direction, as soon as the evidence is given, and, if necessary, again in the summing-up - to make it clear to the jury that the accused had a fundamental right to decline to participate in an identification parade and that his exercise of that right must not lead to any conclusion by them that he is guilty." 15 More recently, the same subject arose in the Court of Appeal in Victoria. This appears from the joint judgment of Charles and Nettle JJA (with whom Hansen AJA agreed). The case is reported as R v Andrew Timothy Davies (2005) 11 VR 314; (2005) 153 A Crim R 217. The joint judgment endorsed the approach of Hunt CJ at CL, as reflected both in Reeves and in McCarthy & Ryan. 16 In relation to the passage I have extracted from the latter decision, the Victorian Court of Appeal said (at 12): "With respect we agree. Accordingly we consider that the learned trial judge was right to rule as he did. We add that his Honour's clear directions to the jury left no doubt that the evidence of refusal to participate in an identification parade did not suggest and was not to be interpreted as suggestive of guilt." 17 In relation to the allied question as to whether the jury should be told that an accused had been invited to participate in a record of interview, I would refer to two of my own decisions in R v Ronen (unreported) 12 August and 10 November 2004. These decisions placed particular reliance on the remarks of Hunt CJ at CL in Reeves' case. 18 There are three reasons why the principles referred to in the above cases dictate a conclusion that the relevant evidence should be placed before the jury in the present matter. First, there is the general matter adverted to by Hunt CJ at CL. This is the proposition that juries will well know that an identification parade is commonly held where there is an issue about the identification of an accused person. Consequently, they may well speculate about whether such an identification parade was held in a particular matter and, without clarification they may be prepared to draw the inference, adversely to the Crown, that there has been ineffective or sloppy police procedure involved in a particular trial. 19 Secondly, this may occur even when there is no precise mention of the absence of an identification parade by either Crown or defence in their arguments before the jury. Mr Scragg, of course, has made it clear that he will not make any such critical submission before the jury. But, as I have said, the thought may well occur to the jury in any event. The Crown is entitled to avoid such speculative criticism and this can best be done by allowing the tender of the evidence (or by an agreed statement), provided that the appropriate direction is immediately given to the jury to reinforce the accused's absolute entitlement to decline to participate, and to reinforce that no adverse inference in that regard should be drawn against the accused. 20 Thirdly, there is the undoubted fact that in this trial there will be a number of issues relating to the identification not only of Mr Jamal, but also perhaps of other accused, and indeed other persons. There will necessarily be different critical aspects of each identification process as and when they might arise. The situation of the array of photographs shown to an overseas witness which resulted in the identification of Moustafa Cheikho is a good example. 21 In a trial where there are likely to be a number of different issues involving the alleged identification of a number of people, it seems to me to be particularly appropriate that the jury should be told whether or not an identification parade was offered and whether it was declined. Provided the appropriate direction, as dictated by Petty v The Queen (1991) 173 CLR 95 is given, I do not consider that the matters of concern to Mr Scragg will legitimately arise. Third issue 22 On 8 December 2005 Detectives Moroney and Liddiard attended Jamal's residence without notice to him or his solicitor. There then occurred a relatively lengthy conversation between Mr Moroney and the accused in connection with the investigation. It appears (although this has not been fully argued before me on both sides) that the conversation, if pressed, would be likely to be excluded as evidence obtained improperly or illegally (s 138 of the Evidence Act 1995). 23 In this regard, Mr Scragg has pointed to obligations placed on police officers by ss 23F and 23G of the Crimes Act (Cth) 1914. In certain circumstances, a person under interrogation is entitled to be cautioned before questioning, and entitled to be informed of his rights to communicate with a friend, relative and legal practitioner. 24 Mr Scragg argued that, were the conversation to be pressed by the Crown, they ought be ruled inadmissible under s 138 of the Evidence Act. Mr Scragg argued that the motive for Detective Moroney's approach on 8 December appeared to be to give the accused an opportunity to turn Crown evidence and, in that regard, to strengthen the Crown case against the other co-accused. 25 Counsel made reference to Exhibit 2, a document obtained pursuant to discovery. The note comes from the notebook of Detective Joseph and discusses the contents of a meeting between the detectives on 7 December 2005 at 4.30pm. The note refers to a proposal to "rattle the cage" by making an approach to Mr Jamal. Mr Scragg says it is open to infer that the approach made on 8 December 2005, and the ensuing conversation, were evidence of the detectives "rattling the cage". 26 The Crown does not seek to lead the contents of the conversation at trial. All the Crown seeks to lead is that the police attended at Jamal's premises on 8 December 2005, and that they spoke to him in connection to the investigation of the present matter. 27 The relevance of those facts, according to the Crown submission, is that they are to be viewed against the background of the attendance by the police on the following day with a warrant for Jamal's arrest. Against the background of the events of both 8 and 9 December 2005, the Crown will argue that the subsequent actions of Jamal were consistent with his acting to flee and avoid apprehension. In other words, the Crown will rely on his conduct between 9 December 2005 and the date of his ultimate arrest on 20 December 2005 as conduct showing consciousness of guilt. 28 There is no need for me to detail all the evidence that relates to the alleged flight. It includes, however, evidence that Jamal had changed his appearance and, in particular, that he was clean shaven. It also relates to a number of the items which were found in his possession when he was arrested on 20 December. For example, he was found with clothes, toiletries, sleeping bag and the like. 29 It is fair to say there was a relatively heated debate between the Crown and Mr Scragg as to whether the limited facts should be admitted. Mr Scragg accused the Crown of wanting to use the fact of an illegally obtained conversation (even though it was not relying on its content) to act as a launch pad or springboard for the arguments about consciousness of guilt. Secondly, Mr Scragg adverted to the problems that might confront his client if he wanted to give evidence explaining his absence from his home between 9 and 20 December 2005. It might necessarily involve him in referring to the prohibited conversations. 30 I accept that there is a delicate but genuine point of distinction involved in this particular dispute between the parties. I suggested two possible compromises during the course of argument. Ultimately, I considered that the Crown would be entitled to lead evidence that the police attended Mr Jamal's home on 9 December 2005 and that the attendance was in connection with the investigation. It seemed to me that the Crown would be entitled to use those limited facts as some type of springboard for the material it relied upon to support an assertion of conduct evidencing consciousness of guilt. It would not involve any mention of the conversation at all. I should add that there will be a live issue at trial as to whether Mr Jamal's conduct, if it may be so described, evidenced consciousness of guilt in the sense contended for by the Crown. 31 The second compromise suggestion I made was somewhat more expansive but was still quite limited. This was a suggestion that the parties might agree that the police attended Jamal's home on 9 December 2005 in connection with the investigation, and that Jamal became aware of that fact. The latter fact seems to me to be quite neutral. 32 Upon reflection, I consider that the second of these two suggestions might be the one that would be more acceptable to the defence. I say this because it should remove any speculation as to how it was that Jamal knew of the visit by the police on the day in question. 33 The problem with the first suggestion is that it leaves it up in the air completely as to whether Jamal was or was not aware of the police visit. This may, in turn, albeit quite unintentionally, lead to the need for or emergence of some evidence as to the existence of a conversation between he and the police on that day. That, in turn, might raise a query in the jury's mind as to what was said. 34 In all the circumstances, however, I would be prepared to allow either suggested compromise to be implemented by the Crown at trial. If, however, Mr Scragg decides that the second suggestion is less suitable to his client's interest, then I will confine the Crown to the first and more limited suggestion. Fourth issue 35 The final issue relates to a paragraph occurring in the transcript of the search warrant conversations relating to the execution of a warrant on 8 November 2005 at 15 Punchbowl Road, Belfield. 36 In that transcript, Jamal says: "For one thousand four hundred years the Koran has never ever been changed. 'Til this day it's proven by even Christian scholars that it has never been changed. All the other books have been changed except this book. If you do not believe you see where you're gonna end up. Allah is gonna put youse into a fire. Well Allah heats the most disgraceful fire that can ever be and youse, well Allah, youse are gonna regret every single thing that youse ever did from the day youse were born. Remember that. Fourteen hundred years, never been changed, and if you don't believe in it you'll see what's gonna happen to you. Allah is gonna take care of you. Allah curses youse all. Allah curses youse and your children and your wife. Allah curse all of youse. May Allah put a disease in your body. All your bodies. May Allah put a very great disease in there so youse can just rot slowly. May Allah put a very big disease. May Allah curse youse, your children and your wives...A great disease in your body and your family doesn't ever help youse. Keep it there..." 37 Mr Scragg submits that the passage should not be led at trial. He argued that nothing in it was relevant to the trial. All the passage will do, he argued is generate a degree of prejudice against his client. 38 Mr Scragg also referred to the circumstances in which the statement was made by his client, namely that Jamal's house had been invaded at 3am, and that his family were being detained and that he was concerned for them. He himself was handcuffed. Mr Scragg submitted that, in those circumstances, the statements could not be seen as an extremist point of view in the context of the present trial. 39 The Crown argued that Jamal's statement was highly relevant on the issues in the trial, especially his discussion about his religion in the context of destroying or harming those that disagree with it. 40 In my view, the conversation is relevant to the issues in the trial. I allow that Mr Jamal would have been upset and angry at the circumstances in which he and his family were placed. The passage, however, was delivered in a very calm manner and, indeed, in a very intent manner. It was not an explosion of anger such as overtook Moustafa Cheikho in relation to an outburst I excluded from trial in an earlier series of rulings. It is its very deliberateness that sets it apart from the Moustafa Cheikho example. 41 It is, in my opinion, capable of being seen as the expression of an "extremist" point of view. On the other hand, it may be explained, as I have no doubt Mr Scragg will endeavour to do, as simply a reaction from a man finding himself in very unpleasant and distressing circumstances. Those different perspectives of the statement highlight that, in the ultimate, the weight to be attached to the evidence will be a matter for the jury. In my view, however, it passes the threshold for the broad test of relevance contained in s 55 of the Evidence Act 1995. 42 There may be a subsequent application involving, as I understand it, a general defence argument about the use of the word "extremist" in the trial. I have not heard that argument and I would not wish to foreclose any appropriate discussion about the use of the expression at trial. The remarks, however, of Robert F Kennedy, dealing with political extremism, are not entirely inappropriate to the present discussion. The late Senator Kennedy is reputed to have said that: "What is objectionable, what is dangerous about extremists, is not that they are extreme, but that they are intolerant...the evil is not what they say about their cause, but what they say about their opponents." 43 In any event, I consider that the passage is relevant and I do not think it should be excluded under s 137 of the Evidence Act. 44 In view of the fact that a number of these rulings will require some further discussion between the Crown and Mr Scragg, I will simply make an order dismissing the motion. If any further arguments are necessary, they can be ventilated separately and at a later stage. ********** 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.