Supreme Court New South Wales Medium Neutral Citation: R v Khan (No 7) [2019] NSWSC 350 Hearing dates: 2 April 2019 Date of orders: 02 April 2019 Decision date: 02 April 2019 Jurisdiction: Common Law Before: Bellew J Decision: Evidence admitted Catchwords: CRIMINAL LAW – Evidence – Accused charged with committing a terrorist act - Where Crown sought to tender publications found on the accused's computer and phone – Whether probative value of the evidence was substantially outweighed by the danger that it might be misleading or confusing or cause an undue waste of time – Evidence admitted Legislation Cited: Evidence Act 1995 (NSW) Category: Procedural and other rulings Parties: Regina (Crown) Ihsas Khan (Accused) Representation: Counsel: P McGuire SC and K Curry (Crown) T Anderson (Accused) Solicitors: Director of Public Prosecutions (Cth) (Crown) Legal Aid (NSW) (Accused) File Number(s): 2016/272232 Publication restriction: Nil Judgment – EX TEMPORE (REVISED) 1. The Crown has sought to tender three publications, two of which were found on a laptop computer owned by the accused and which are entitled "Book of a Mujahiddeen" and "The Book of Jihad" respectively, and the third of which is entitled "The Story of an American Jihaadi Part 1" which was found on a mobile phone belonging to the accused. 2. On 25 March last I heard argument in relation to the admissibility of this material, and concluded that the evidence should be admitted. My reasons for reaching that conclusion now follow. 3. It is necessary for me to briefly refer to some extracts from each publication. 4. The "Book of Mujahiddeen" includes the following passage: [1] "Almighty Allah says: 'Fighting is enjoined on you, and is an object of dislike to you; and it may be that you dislike a thing while it is good for you, and it may be that you love a thing while it is evil for you, and Allah knows, while you do not know'." 1. The passage goes on to say: "Jihad is spending power and energy in the war on the Way of Allah against the infidels, with the intention to exalt the word of Allah with direct participation or financial support, or with treating the wounded, or with food supplies or with an idea." 1. The following is then stated: [2] "It is one who takes active part in Jihad with his property and his soul for Allah, the Lord of the Worlds, and who is capable of comprehending the miracle of life and to fight till the end in for what he believes in...A Mujahid ardently desires to receive the reward from Allah for fulfilment of Jihad, which is the most important religious duty of a Muslim. Allah says: 'Go forth light and heavy, and strive hard in Allah's way with your property and your persons." 1. The "Book of Jihad" includes a chapter [3] entitled "The Virtue of Injury in the Sake of Allah". Another chapter [4] is entitled "Martyrdom", one of the sub chapters of which is entitled "Asking For Martyrdom and Getting It". Another is entitled "the Virtues of Martyrdom". "Jihad" is defined as "Fighting the enemy", which "involves using all efforts in words and deeds". 2. The following is also stated: [5] "Whoever goes out in his cause with no purpose but to fight in his sake and believing in Him and His Messengers, Allah will guarantee for him to either enter him into Paradise or to return him home with rewards or booty. In the name of Muhammad's soul is in His Hand, whoever is injured in the path of Allah, the injury would come on the Day of Judgment as it was in this world, the colour is that of blood and the smell is that of musk...I wish I could fight in the cause of Allah and then be killed and then fight and then be killed and then fight and then be killed." 1. "The Story of an American Jihaadi" was apparently written by Omar Hammami in or about May of 2012. It is his biography. The introduction to the book makes repeated references to the importance of war. 2. Relying upon ss 135(b) and (c) of the Evidence Act 1995 (NSW) ("the Act") counsel for the accused objected to the admission of this evidence on the basis that its probative value was substantially outweighed by the danger that it might be misleading or confusing, or might cause or result in an undue waste of time. Counsel submitted that it was evident that the Crown was not going to take the jury to the entirety of the material line by line, and submitted that in those circumstances, there was a clear danger that the evidence would be misleading or confusing because the jury may give it more weight than it deserved, in circumstances where only some of it would be the subject of specific submissions. He submitted that these circumstances could give rise to confusion on the part of the jury about why the evidence was tendered at all. 3. Counsel further submitted that any material tendered to the jury should be read in whole, but that to read all of these publications would cause an undue waste of time. He submitted that the tender of the title pages of each publication (which was the course that the Crown had adopted in a previous trial) would be sufficient. 4. The Crown submitted that if the tender was limited to the title pages that would, of itself, be misleading and/or confusing because in those circumstances, the jury would be deprived of the opportunity to understand the extremist nature of the entirety of each publication. The Crown submitted that the themes in each publication were consistent, and that their tender would not involve any undue waste of time. 5. In assessing the probative value of this evidence it is significant that when interviewed by the police immediately after his attack on Mr Greenhalgh, and when asked what his purpose was in carrying out that attack, the accused replied "to kill and be killed". That is, to a large extent, the general theme of each of these publications. Their contents are consistent with the philosophy espoused by the accused when he was interviewed. 6. The sole issue in the present case centres upon the accused's state of mind at the time of his attack on Mr Greenhalgh. It is expected that Professor Greenberg, who will be called by the Crown, will give evidence that in his opinion material of this nature is inconsistent with the accused having any form of disordered thought at the relevant time. Dr Adams and Dr Reznik, who will be called on behalf of the accused, will, I expect, express a contrary opinion. It will be a matter for the members of the jury to evaluate those opinions, and determine which they accept and which they reject. However, in my view, the probative value of the evidence, bearing in mind what the accused himself said when interviewed, and also bearing in mind the medical opinions which will be adduced, is high. 7. I am not satisfied, in the circumstances, that such probative value is substantially outweighed by the danger that the evidence might be misleading or confusing, or might result in an undue waste of time. In my view, there is nothing at all misleading or confusing about the contents of these publications, and the views that they express. On the contrary, the philosophies espoused in them are clear and unequivocal. They are also wholly consistent with the philosophies expressed by the accused himself when interviewed by police. None of that is affected, in any way, by the fact that the jury will be taken only to parts of them. Nothing mandates that the entirety of the material be read to the jury line by line. There is therefore no danger, in my view, that the tender of this material would result in any undue waste of time. 8. For these reasons, the evidence will be admitted. ********** Endnotes 1. Under the heading "Jihad". 2. Under the heading "Mujahid" 3. Chapter 6. 4. Chapter 12. 5. At p. 53. 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: 10 May 2019