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. The telephone conversation 1. In order to understand the relevance of the disputed evidence, it is necessary to have regard to some of the contents of the telephone conversation. The conversation was conducted in a mixture of English, Arabic and Dari. For the purposes of these reasons, I do not propose to differentiate as between the respective languages. 2. In the telephone conversation, Baryalei asks the accused if he remembers what they had previously discussed. The transcript reflects that the accused responds, "Yeah, yeah, yeah." It is to be noted that there are no intercepts of any previous conversations on the same topic. The inference is available that there were other conversations between the two men in addition to those that were intercepted. 3. Baryalei then continues, "What you guys need to do is to pick any random unbeliever. Finish him/her. When finished, put the flag of the State on the background, put our flag, and then I need that video here…" Baryalei goes on to describe how the killings would be publicised, et cetera. 4. Throughout the long description by Baryalei of what he wants the accused to do, the accused is heard to give short answers, such as "Yeah" and "Allah willing". His first full answer is to tell Baryalei that "a brother" from Brisbane who was "very much with us in religion" had "wanted to do this work". The accused tells Baryalei that this "brother" from Brisbane had "…prepared two persons, he completely prepared everything, and…but two days ago he got raided, everything was raided", and that, "…everything was planned well, planned well, and the two unbelievers who were working for the government…everything was planned…he wanted to do the operation this week, but he got raided two days ago…" The accused says later in the conversation, "I swear by Allah, that brother had planned everything very well, but his plan is known to us, Allah willing, we have got his plan." 5. Baryalei then says to the accused, "As you are involved in this work…this is – this is ah - a an order from the Commander of the Faithful…youse will be working from there. Youse – youse aren't allowed to come here." The accused responds, "Yeah, Allah willing." Baryalei says, "…if youse do this…your pledge of allegiance is accepted, you are part of us", and, "…even if youse wanna come here now, no. You have to stay there and work from there. They want youse to be, like, the soldiers from there." The accused responds, "Allah willing, brother, I have no problem with that. Praise be to Allah." 6. Elsewhere in the telephone conversation the accused suggests to Baryalei that the acts being discussed be "postponed" for two months due to the extreme surveillance he and the other "boys" were under at that time. The defence case at trial is that the accused was suggesting to Baryalei that the plan be "abandoned" rather than "postponed". 7. On the Crown case, the references to "youse" and to "soldiers" in the telephone conversation (and other references to "the boys" in the same call that I have not set out) are references to the consultative council, known by the Arabic word "Shura", of which the accused was a member. It is the Crown case that all of the members of the Shura sympathised with Islamic State and would have been willing to carry out the relevant terrorist act or acts. Evidence will be led at the trial as to who are the members of the Shura. 8. There does not seem to be any dispute as between the parties that when the accused refers to the "brother" from Brisbane who was recently arrested he is referring to Agim Kruezi ("Kruezi"). A few days before the telephone conversation, Kruezi was arrested in Brisbane and charged with terrorism offences. 9. There is evidence in the Crown case that the accused spent time with Kruezi a few weeks before he was arrested. The evidence is that on 11 August 2014 Kruezi flew from Brisbane to Sydney and was thereafter seen to be in the company of the accused and other men said to be in the Shura on a number of occasions between 15 and 27 August 2014. For example, on 22, 23, 24 and 25 August 2014 he is seen with the accused near Parramatta Mosque and leaving the accused's home. The surveillance footage is consistent with Kruezi's spending considerable time with the accused. 10. Kruezi flew back to Brisbane on 31 August 2014 and was arrested on 10 September 2014, five days before the telephone conversation between the accused and Baryalei. The objection 1. Objection was taken to that part of paragraph [415] of the Crown Case Statement that pertains to "things found in Kruezi's house". Paragraph [415] of the Crown Case Statement is in these terms: "On 10 September 2014, JCCT officers executed a search warrant at 12 Baudin Street, Boronia Heights, QLD, the suburban Brisbane residents of Agim KRUEZI. A search of his residence and motor vehicle located a shortened firearm and ammunition, a compound bow and arrows, various machetes and other knives and materials for manufacture of improvised incendiary devices, together with an Islamic State flag and documents and other electronic media consistent with Agim KRUEZI holding a radical, violent Islamist ideology. Agim KRUEZI was subsequently charged with terrorism and foreign incursion offences. It is alleged that Agim KRUEZI planned to use the firearm and other weapons and improvised incendiary device in a domestic terrorist act or acts and that this was known to Omarjan AZARI, as allegedly admitted by Omarjan AZARI in the telephone conversation on 15 September 2014 giving rise to the offences for trial." 1. Mr Stratton SC conceded that the fact that Kruezi was arrested was admissible. He also conceded that there is evidence of a connection between the accused and Kruezi. His objection was based on the fact that the defence case is that the accused only knew about Kruezi's arrest and charges from the extensive publicity of Kruezi's arrest. He submitted that the Crown has to prove what was in the accused's mind, not in Baryalei's mind nor Kruezi's mind. He submitted that the defence case is that during the telephone conversation the accused is making excuses to Baryalei as to why he is not prepared to do anything. The accused is telling Baryalei, it was submitted, that he has heard that Kruezi had been arrested in Brisbane. 2. It was further submitted by Mr Stratton that the items found in Kruezi's possession are not admissible in the accused's trial unless there is evidence that the accused knew about them. It was further submitted that the hearsay rule applies. Finally, it was submitted that there was no evidence of any telephone contact as between the accused and Kruezi in the days leading up the latter's arrest. 3. The Crown Prosecutor submitted that there was evidence of a connection between the accused and Kruezi. He relied upon the references in the telephone conversation to "the plan". 4. On 1 May 2017, after I ruled that the evidence of what was found when Kruezi was arrested was admissible but before that evidence was led, Mr Stratton indicated that he had recently been served with a number of photographs that the Crown Prosecutor sought to tender consistent with my ruling that paragraph [415] of the Crown Case Statement was admissible. This material was tendered on the voir dire and marked VD8. 5. The colour photographs in VD8 show, inter alia, a mannequin's head strapped to a boxing stand with bullet holes in it and the surrounding wall, a crossbow, a flick knife, a man (presumably Kruezi) with a quiver of arrows, a book entitled "Religious Extremism", photographs of Islamic State fighters apparently training in some remote area, a photo of Osama Bin Laden, a document entitled "How to behead in the "correct" way according to the West", a document entitled "The Defence of Muslim Lands", a shortened firearm, machetes, ammunition, and "The Book of Jihad". Another photo depicts that Kruezi had the Islamic State flag hanging above his bed. Viewed together, the images suggest that Kruezi was a radicalised man with an arsenal of weapons. 6. Also, part of exhibit VD8 were photographs of items found on Kruezi when he sought to leave Australia on 9 March 2014. He was found with two mobile telephones, an iPad, and cash. Images were downloaded from the devices of a similar nature to that described above at [21]. 7. I indicated at that time that I did not propose to permit the Crown to tender any of the photographs in VD8. Consideration 1. The initial objection to the material described at [415] of the Crown Case Statement, concerning the description of what was found at Kruezi's residence, was based on a claim that it was irrelevant and hearsay. I will deal with those issues in turn. 2. Evidence is relevant in a proceeding if, if it were accepted, it could rationally effect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding: s 55 of the Evidence Act 1995 (NSW). That provision was considered by the High Court in IMM v The Queen (2016) 330 ALR 382; [2016] HCA 14 (see at [38] - [39]). 3. The Crown case is that, by participating in the telephone conversation, the accused did an act in planning or preparation for a terrorist act or acts. The defence case is that the accused did not agree to do anything in the telephone conversation and was in fact trying to "put Mr Baryalei off" with excuses. In the telephone conversation, the accused's first full response to Baryalei's suggestion that he continuously kill members of the public in Australia and film it in front of the Islamic State flag is to say that, "A brother wanted to do this work, yeah?" and that, "He completely prepared everything". He says, "…everything was planned well, planned well" and, "…that brother had planned everything very well, but his plan is known to us, Allah willing, we have got his plan." On the Crown case the accused tells Baryalei that Kruezi's plan was known "to us" and that the accused and the Shura had "got his plan". 4. There is no dispute that the accused said these particular words to Baryalei. The defence seeks to advance at trial that the accused was not planning or preparing for a terrorist act during the telephone conversation because nothing would have happened; he was only being polite to Mr Baryalei. In that context, it is relevant to the Crown case what the accused might have meant when he said that he knew Kruezi's plan. On the Crown case, the accused telling Baryalei that he already knows the details of "a plan" is capable of amounting to planning or preparing a terrorist act. 5. I am satisfied that there is evidence that Kruezi had a number of opportunities to tell the accused what his plan was when he was in Sydney a few weeks before his arrest. The fact that Kruezi was arrested with weapons and jihadist literature is relevant to what the accused discussed in the telephone conversation with Baryalei. 6. The evidence is not hearsay evidence. It is not evidence of a representation adduced to prove the truth of the representation. It is simply evidence of what was found at Kruezi's premises that is capable of supporting the construction of the conversation advanced by the Crown. The fact that the accused denies knowing the plan does not render this material inadmissible. There will no doubt be evidence led at trial as to the media coverage of Kruezi's arrest to explain how the accused might have known of the "plan" other than from the times he was seen to be in Kruezi's company in Sydney in late August 2014. 7. The task of determining whether evidence is relevant requires an assessment of the capability of evidence rationally to affect the assessment of the probability of the existence of a fact in issue. It is not the role of the trial judge, at the point of assessing relevance, to enquire into the weight that a jury may give to evidence. A piece of circumstantial evidence that gives rise to an inference consistent with guilt is probative unless that inference is preposterous or incredible in the sense explained by the majority in IMM v The Queen at [39]. 8. Having satisfied myself that the material was relevant, I then had regard to whether the material should be excluded under s 137 of the Evidence Act. Section 137 provides that, "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." In applying s 137, I am required to balance the extent of the capacity of the evidence to support particular factual findings against the danger of unfair prejudice to the accused. "Probative value" is defined in the Dictionary to the Evidence Act as, "The extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." 9. I was not satisfied that there would be a danger of unfair prejudice to the accused should the description of what was found at Kruezi's home in paragraph [415] of the Crown Case Statement be admitted. As Mason P observed in Colby v The Queen [1999] NSWCCA 261 at [97], "The focus is upon the danger that the tribunal of fact will use the evidence upon a basis logically unconnected with the issues in the case..." I would be giving the jury directions as to how they are to use the evidence in the context of the telephone conversation. I was thus not satisfied that that evidence should be excluded under s 137 of the Evidence Act. I ruled that evidence could be elicited from the relevant police officer that weapons and literature were found at Kruezi's home when he was arrested on 10 September 2014. 10. Although I was not satisfied that the evidence of what was found in Kruezi's home when he was arrested on 10 September 2014 ought be excluded under s 137 of the Evidence Act, I am satisfied that the danger of unfair prejudice to the accused of admitting the photographs in VD8 outweighs their probative value. The probative value of the photographs is not much higher than a description of what was found. The danger of unfair prejudice to the accused, however, is significant. I formed the view that there was a real risk that, once tendered, they would become a disproportionately significant part of the exhibits in the jury room in circumstances where no weapons or literature were ever found in the possession of the accused (notwithstanding that jihadist literature was found in his home). Accordingly, I was required to refuse to admit the photographs under s 137 of the Evidence Act. 11. My conclusion regarding the photographs pertaining to Kruezi's arrest on 10 September 2014 applies a fortiori to the images downloaded from Kruezi's devices when he sought to leave Australia on 9 March 2014. The probative value of that evidence is low given the timing of it and the fact that it cannot be directly linked with anything the accused said to Baryalei in the telephone conversation. Furthermore, in circumstances where there does not seem to be any dispute as between the Crown and the accused that Kruezi was leaving Australia to join Islamic State fighters, the fact that he had literature sympathetic to Islamic State in his devices does not significantly advance the Crown case. If I am wrong and the purpose of Kruezi's departure is in dispute, I can revisit that part of this ruling at trial. ORDERS 1. The description of evidence in paragraph [415] of the Crown Case Statement filed 10 April 2017 is admissible. The photographs in VD8 are inadmissible. ********** 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. Decision last updated: 08 April 2019