R v Azari (No 4) [2017] NSWSC 563

Supreme Court New South Wales

Medium Neutral Citation: R v Azari (No 4) [2017] NSWSC 563 Hearing dates: 20, 21 April and 1 May 2017 Date of orders: 21 April 2017 Decision date: 10 May 2017 Jurisdiction: Common Law - Criminal Before: N Adams J Decision: (1) The description of evidence in paragraph [415] of the amended Crown Case Statement filed 10 April 2017 is admissible. (2) The photographs in VD8 are inadmissible. Catchwords: CRIMINAL LAW – terrorism trial – objection taken by the accused in relation to items found at home and on the devices of another person accused of terrorist offences – where accused in this trial makes reference to having the "plan" of other accused – whether evidence relevant – whether court required to exclude evidence under s 137 Legislation Cited: Criminal Code (Cth), s 101.6 Evidence Act 1995 (NSW), ss 55, 137 Cases Cited: Colby v The Queen [1999] NSWCCA 261 IMM v The Queen (2016) 330 ALR 382; [2016] HCA 14 Category: Procedural and other rulings Parties: Regina (Crown) Omarjan Azari (Accused) Representation: Counsel: Mr P Neil SC with Ms J Single (Crown) Mr J Stratton SC with Ms M Curry (Accused)

Solicitors: Commonwealth Director of Public Prosecutions (Crown) Ryan & Payten Criminal Specialists (Accused) File Number(s): 2014/00274649; 2014/368436 Publication restriction: Nil

Judgment 1. On 10 April 2017, the accused Omarjan Azari pleaded not guilty before me to, inter alia, an offence brought under s 101.6(1) of the Schedule to the Criminal Code Act 2005 (Cth) that: "On 15 September 2014, at Parramatta, in the State of New South Wales, did an act in preparation for, or planning, a terrorist act or acts, namely did participate in a telephone conversation with another person, namely Mohammad Ali Baryalei or another unknown person, in preparation for, or planning, a terrorist act or acts." 1. The Crown case is that the accused and Mohammad Ali Baryalei ("Baryalei"), during a telephone conversation on 15 September 2017 ("the telephone conversation"), discussed a plan for a future terrorist act or acts to be committed in Australia; namely, the killing of a random member or members of the public. Baryalei was at that time a senior Australian figure in the terrorist organisation known as Islamic State and was in either Syria or Iraq. 2. On 10 April 2017, the Crown Prosecutor filed in court a final version of the Crown Case Statement. It comprises 477 paragraphs and is 69 pages long. The jury was not empanelled until 24 April 2017. In the interim, a number of pre-trial legal issues were ventilated. 3. On 12 April 2017, the accused's legal representatives provided to the Commonwealth DPP an extensive list of objections to certain evidence as set out in the amended Crown Case Statement. That evidence was identified by way of paragraph number. A copy of the list of objections was provided to the Court on 19 April 2017. A significant number of the objections were able to be resolved between the parties, but on 21 April 2017 I was asked to rule on some of them. On that date, I ruled that the evidence contained in paragraph [415] of the Crown Case Statement was admissible. I indicated that I would provide my reasons at a later time. These are my reasons for ruling that that evidence was admissible. 4. It is to be noted that the trial commenced on 24 April 2017 and the jury was discharged on 3 May 2017 after four days of evidence. It is anticipated that a new trial will proceed later in the year.