Citation: Regina v Amir Ibrahim El Mostafa [2007] NSWDC 332
Court: District Court of New South Wales
Date: 27 April 2007
Judge(s): Cogswell SC DCJ
Background
The accused faced charges arising from events on 30 January 2005, the subject of the trial. He had also faced a separate charge brought by a member of the Auburn Arabic community, arising from events on 4 February 2005, which had been dismissed by a magistrate.
The Crown sought to tender evidence from two lawfully obtained telephone intercepts, recorded on 23 March 2005 and 25 June 2005. The accused's participation in both calls was not in dispute. The defence brought applications to have portions of those intercepts ruled inadmissible.
The primary points of contention concerned the accused being referred to by the alias "Abu Fajer" during both calls, and whether certain portions of the transcripts risked confusion with the separate dismissed proceedings.
Legal Issues
- Whether references to the accused by the alias "Abu Fajer" in the telephone intercepts were admissible, given that a prior ruling had excluded an admission by the accused to the same effect made during a police interview.
- Whether portions of the call transcripts relating to events on 30 January 2005 were sufficiently distinguishable from references to the separate dismissed proceedings, so as to avoid unfair prejudice or juror confusion.
- Whether the admission of the disputed transcript portions would infringe sections 135 or 137 of the Evidence Act 1995 (NSW), on grounds of unfair prejudice or risk of confusion.
Decision
The court rejected the defence submission that excluding the police interview admission necessarily precluded the Crown from tendering other evidence of the same alias. The ruling on the interview had been made in a distinct context concerning a police interrogation; it did not create a blanket bar on other admissible evidence of the same fact. The court found it was open for the jury to infer, from each call, that the accused adopted the name "Abu Fajer" when addressed by it.
On the question of potential confusion between the two sets of events, the court found that the content of call number 5 clearly referred to the 30 January 2005 events, given references within the conversation to the incident being reported on television, including in Iraq and on foreign channels. There was no real risk of confusion with the February 2005 proceedings.
For call number 16, the court acknowledged that some portions touched on the separate court proceedings, but the Crown pressed only those components referable to the subject matter of the current trial. The court was satisfied a clear thematic division existed within the transcript. Any residual difficulty for the defence in cross-examination was regarded as not unfair, particularly given the accused had been acquitted of the other charge.
Several other contested portions, including references to terrorism, the American government, and material critical of the Shia, were not pressed by the Crown and required no ruling.
Orders Made
No formal orders were made in this decision. The court ruled that the tendered evidence, as amended by the Crown, was admissible.
Key Takeaways
- A prior ruling excluding an admission made during a police interview does not automatically render other evidence of the same admission, obtained from separate and lawfully intercepted communications, inadmissible.
- Where a participant in a telephone call adopts a name used by the other caller, it is open to a jury to infer that the name is an alias of that participant.
- Under sections 135 and 137 of the Evidence Act 1995, the risk of confusion between two distinct sets of alleged events must be a real one; the court found no such risk where the content of the conversation itself pointed clearly to one event.
- The District Court treated the Crown's agreement to excise portions referencing religious and political commentary as resolving those objections, declining to rule on material no longer pressed.
- An accused's prior acquittal on a separate charge was treated as a relevant factor reducing any prejudicial weight that might arise from residual references to those proceedings in the trial transcript.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 135, 137
Cases cited:
- Please see Regina v Amir Ibrahim El Mostafa [2007] NSWDC 219 (referenced for hearing dates and prior rulings, including the exclusion of the police interview admission)