Supreme Court New South Wales Medium Neutral Citation: R v Taleb (No 2) [2019] NSWSC 396 Hearing dates: 29 March 2019 Date of orders: 29 March 2019 Decision date: 10 April 2019 Jurisdiction: Common Law Before: Hamill J Decision: Mr Trad's evidence on the practice of Islam is admissible but the evidence relating to the conflict in Syria and the practices of Islamic State is inadmissible (see paragraphs [15]-[19] and transcript of argument on 29 March 2019). Catchwords: CRIMINAL LAW – expert evidence to be called by accused – failure to serve report – failure to cross-examine prosecution witness – fairness to the accused – limited applicability of the rule in Browne v Dunn – whether witness qualified to provide opinion evidence – evidence concerning practice of Islam and practices of Islamic State or ISIS – witness qualified to provide evidence concerning Islam but limited evidence of Islamic State – rulings made accordingly Legislation Cited: Criminal Procedure Act 1986, ss 143(1) and 146 Cases Cited: Browne v Dunn (1893) 6 R 67 MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329; (2005) 222 ALR 436 Category: Procedural and other rulings Parties: Commonwealth Director of Public Prosecutions Moudasser Taleb Representation: Counsel: S Duggan (CDPP) M Finnane QC (Mr Taleb) Solicitors: Commonwealth Director of Public Prosecutions (CDPP) Zali Burrows at Law (Mr Taleb) File Number(s): 2017/00179287 Publication restriction: No publication until the completion of the trial. Judgment 1. On Friday 29 March 2019, the fifteenth day of Mr Taleb's trial, the Prosecutor raised an objection to the evidence of a witness Keysar Trad, who the accused proposed to call the following Monday. A statement, or proof, or report of the witness was tendered on the voir dire. [1] That report had only very recently been provided to the Prosecutor. I allowed parts of the report but disallowed other parts. I indicated I would provide reasons later. These are those reasons. 2. The accused sought to call Mr Trad to give evidence in rebuttal of some expert testimony provided by a prosecution witness Dr Rodger Shanahan. Dr Shanahan gave evidence about the history of the Islamic religion and parts of the Middle East, the geography of the region, the beliefs and practises of the Islamic State and/or ISIS, the imagery and propaganda used by ISIS, and the tactics and progress of the war in Iraq and Syria. There was no objection to Dr Shanahan's evidence. There was no dispute as to his expertise to provide opinion evidence on these subjects or in relation to the relevance of the evidence. 3. The objection to Mr Trad's evidence was three-fold. First, no report was served in accordance with the relevant provisions of the Criminal Procedure Act 1986. Second, many (perhaps most) of the propositions to be advanced by Mr Trad were not put to Dr Shanahan: Browne v Dunn (1893) 6 R 67. Third, it was submitted that Mr Trad did not have the necessary expertise to provide the opinions contained in his proof of evidence. Failure to serve the evidence and to put relevant propositions to the prosecution's expert 1. The first and second complaints were well-founded. Section 143(1)(h) of the Criminal Procedure Act provides that a defence response to a prosecution case statement is to contain: [I]f any expert witness is proposed to be called at the trial by the accused person, a copy of each report by that witness that is relevant to the case and on which the accused person intends to rely. 1. No such report was served until after the prosecution case was closed. Dr Shanahan's report was served on the accused's lawyers many months previously. 2. Section 146 of the Criminal Procedure Act provides that the Court may exclude evidence that has not been disclosed in accordance with, relevantly, s 143. 3. The explanation provided by Queens Counsel for the accused was that Mr Trad had been tardy in providing a report. This meant the report could not be served and, further, that important propositions were not put to Dr Shanahan in cross-examination. Whether or not there was any delinquency otherwise, it was clearly not the fault of Mr Taleb himself. He is a man in his early twenties, who suffers from schizophrenia and, it is safe to assume, has no legal training, let alone any understanding of the disclosure provisions in the Criminal Procedure Act or the rule in Browne v Dunn. 4. As to the rule of practice stated in Browne v Dunn, in MWJ v The Queen, [2] Gleeson CJ and Heydon J said at [18]: Fairness ordinarily requires that if a challenge is to be made to the evidence of a witness, the ground of the challenge be put to the witness in cross-examination. This requirement is accepted, and applied day by day, in criminal trials. However, the consequences of a failure to cross-examine on a certain issue may need to be considered in the light of the nature and course of the proceedings. 1. The majority (Gummow, Kirby and Callinan JJ) said at [40]: Reliance on the rule in Browne v Dunn can be both misplaced and overstated. If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross-examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put. In criminal cases, in many jurisdictions, the salutary practice of excusing witnesses temporarily only, and on the understanding that they must make themselves available to be recalled if necessary at any time before a verdict is given, is adopted. There may be some circumstances in which it could be unfair to permit the recalling of a witness, but in general, subject to the obligation of the prosecution not to split its case, and to present or make available all of the relevant evidence to an accused, the course that we have suggested is one that should be able to be adopted on most occasions without injustice. 1. Their Honour's went on to say at [41]: The rule in Browne v Dunn can no more be applied, or applied without serious qualification, to an accused in a criminal trial than can the not dissimilar rule in Jones v Dunkel. In each case it is necessary to consider the applicability of the rule (if any) having regard to the essential accusatory character of the criminal trial in this country. (Footnotes omitted.) 1. I did not think it appropriate to invoke the failure of Queens Counsel to challenge Dr Shanahan (or apply the rule in Browne v Dunn) so as to disadvantage the accused by preventing him from calling relevant evidence that would otherwise be admissible. 2. Similar considerations governed my decision not to exercise the discretion in s 146 of the Criminal Procedure Act to exclude the evidence because it was not served. The evidence of Mr Taleb's religious beliefs and interest in Islamic State had taken on some prominence in the prosecution case. Mr Trad's evidence had a capacity to place that evidence in a different light and to lessen the impact of the opinions of Dr Shanahan. My concern was that to prevent the accused from relying on Mr Trad's evidence, in circumstances where Dr Shanahan was essentially given free rein to offer opinions on a wide range of subjects and on the evidence adduced in the trial, would create substantial unfairness to the accused man who challenged some of Dr Shanahan's opinions, particularly those about Islam. Mr Trad's expertise to provide the opinions 1. Mr Trad's evidence fell into two categories. The first concerned the religion of Islam; including radical Islam, Islamic imagery, the source of beliefs held by practitioners of that faith and the meaning of certain words and verses from the Quran and other holy works and religious texts. The second concerned the practices of Islamic State, the conflict in Syria and other related matters. 2. Mr Trad's qualifications were set out on the first page and a half of his report as follows: Experience: I am the immediate former president of Muslims Australia, the Australian Federation of Islamic Councils (AFIC). This was an elected position, AFIC was established 55 years ago, it is the peak body for Australian Muslims. It is a national umbrella organisation. I am also a former president of the Lebanese Moslems Association. I have publicly addressed issues relating to human rights, Islam and the Muslim community. I have been for many years, a regular speaker at various events including peace and human rights rallies and gatherings. I am a roving Imam delivering Friday sermons in various mosques and prayer halls around Sydney and occasionally in other states. I established the Sydney based Islamic Friendship Association of Australia in 2003 in order to promote friendship, understanding and respect between Australian Muslims and the rest of Australian society. I am a published writer of newspaper articles, Islamic literature and poetry. I am a parent and an informal educator. I have given thousands of interviews and background briefings to various media and other organizations. For many years, I regularly delivered cultural and religious briefings to community groups, churches, government and quasi-government bodies. I have edited the Abdullah Yusuf Ali translation of the meaning of the Holy Qur'an. This edited translation has been published and subsequently endorsed (and again published) by the World Islamic Call. http://mostinterestinRbook.bloRspot.com.au/ I have translated several books about Islam (including 4 books written by the current Grand Mufti of Australia) and I have written and translated numerous articles on issues pertaining to Islam. The fourth edition of my book: "Islam for your information" is ready for printing. I have previously hosted my own community radio program for approximately 3 years, I have worked closely with Australia's senior-most spiritual leaders. I have served with a number of Muslim organisations in Australia. I have shared platforms with highly accomplished Muslim and non-Muslim speakers dealing with both religious and political issues. I have published articles in the Sun Herald, The Australian, the Sydney Morning Herald, The Daily Telegraph, The Age, the Canberra Times, Crikey, New Matilda, Online Opinion, Myrightorreply, and the ABC's "the Drum". I have written numerous poems on a multitude of topics, some have been published as individual poems, the romantic collection has been published into a book: http://asenseofplacebloR.com/foravs-of-the-heart-bv-keysar-trad/ Work experience: Chief Executive Officer, Australian International Islamic College, Brisbane Queensland (1 year). This experience included the management of budget and staff, improvements around two campuses, setting a direction and a vision for the college and the pupils, nurturing special talents and improving the standing of the college. Australian Public Service -14 year distinguished career covering areas of management, negotiations, investigations, audits, debt collection and review of objections and appeals. Cost Clerk (6 weeks in 1984) Education: A/Dip in Accounting. Various courses on Islam both locally and overseas. Media training. Management and leadership short courses. Studied one year of law and one year of BSc degree. History of volunteerism (this list is not exhaustive): Commenced circa 1990: Muslims Australia - AFIC, Alwasat newspaper, The Islamic Friendship Association of Australia Inc., Islamic Relief, The Lebanese Moslem Association, The United Muslim Women's Association, The Australian Muslim Times, Australian Islamic Media, Multicultural Eid Festival and Fair, Muslim Aid, Islamic Council of NSW, Australian Institute of Islamic Culture, Australian Islamic Educational Trust, Human Appeal International, Supreme Islamic Council of New South Wales, the Office of the current Mufti, Dr. Ibrahim Abu Mohammad (this was early in his tenure), The Office of the First Grand Mufti of Australia, Sh. Taj Aldin Alhilali. 1. I was satisfied that Mr Trad's experience, studies and religious life provided him with the necessary expertise to provide opinion evidence of matters concerned with, and related to, the practice of Islam. 2. However, most of the evidence in Mr Trad's report touching upon the conflict in Syria and the practices of the Islamic State appeared not to be based in any recognised field of study, or on Mr Trad's expertise, but rather resulted from his general interest in the subject matter and what he had read in newspapers and the like. I concluded that he had no relevant expertise that would allow him to express his opinions as an expert. There were a couple of exceptions to that, where there was a significant overlap between his evidence concerning Islam and his evidence concerning Islamic State or caliphate. I allowed that evidence that fell into these exceptions. For example, I allowed his evidence that a particular Hadith "prophesised the advent of ISIS and warned Muslims against them". He translated the particular Hadith as follows: [3] If you see the black banners (flags), hold your ground and do not move your hands or your feet (meaning: don't go near them.) Then a group of [weak] people will emerge, their hearts are hard as iron, they are the people of "the state", they don't honour a pledge or a treaty, they call for truth [though] they are not people of truth. The names are honourifics, their surnames are names of towns, their hair is let loose like the hair of women, until they will dispute amongst themselves and then Allah will give the Truth to whom He wills". 1. I allowed him to explain the meaning of the Hadith and how it appeared to relate to ISIS. 2. I also allowed Mr Trad's evidence challenging the narrow approach Dr Shanahan gave to words such as "martyr", "jihad" and "kafir" and to the appropriation by Islamic State of words and imagery that is more generally associated with the practice of Islam. I also allowed some limited evidence that the practice of Islamic State was contrary to the true practice of Islam. 3. The particulars of these rulings are set out in the transcript of 29 March 2019 at pp 894-895. ********** Endnotes 1. Ex VD9. 2. MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329; (2005) 222 ALR 436. 3. Ex VD9, p 5. 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 April 2019