Citation: Regina (C'Wealth) v Baladjam & Ors [No 11] [2008] NSWSC 1436
Court: Supreme Court of New South Wales
Date: 16 April 2008
Judge(s): Whealy J
Background
Nine accused faced charges under Commonwealth law relating to an alleged agreement to prepare for a terrorist act or acts. The Crown case was that each accused shared common beliefs about violent jihad and entered into a conspiracy to equip themselves with the knowledge, materials, and means necessary to carry out terrorist acts.
As part of that case, the Crown sought to lead evidence about two camping trips undertaken in rural New South Wales in March and April 2005. The camps took place at remote properties near Bourke, were booked in false names, and involved the use of multiple firearms. Police examined both campsites after the fact and recovered spent cartridges and other items. Ballistic evidence linked at least one rifle to a search warrant executed at one of the accused's premises.
Several accused applied to exclude the camping evidence. The contested arguments focused primarily on the accused Touma (who attended only one camp), Khaled Cheikho, and Jamal. Defence counsel argued the evidence was irrelevant, carried no adverse inference, and risked unfair prejudice by inviting the jury to treat ordinary camping as sinister preparation for terrorism.
Legal Issues
- Whether the evidence of the two camping trips was relevant to the Crown's circumstantial case against each accused, under s 56 of the Evidence Act 1995
- Whether the conspiracy rules permitted the use of the acts and conduct of co-accused to prove the conspiracy against individual accused
- Whether the evidence should be excluded under s 137 of the Evidence Act 1995 on the basis that its probative value was outweighed by the risk of unfair prejudice
- Whether the Crown should be permitted to characterise the trips to the jury as "training camps"
Decision
Whealy J dismissed the applications to exclude the evidence and ruled it admissible against the accused generally, including specifically against Touma and Khaled Cheikho.
On relevance, the court found that the camping evidence formed part of a broader circumstantial case. Taken together, the features of the camps, including their remote locations, short duration, use of false names and mobile phones, the failure to complete required paperwork, and the use of multiple firearms, were capable of supporting an inference that the trips were connected to the alleged conspiracy. The court accepted that the evidence of the activities of co-accused could, applying conspiracy rules, be used as part of the Crown's case against individual accused who were alleged participants in the agreement.
On unfair prejudice under s 137, the court was not persuaded that the risk of prejudice outweighed the probative value of the evidence. The court reasoned that the jury would hear competing submissions: the Crown could characterise the trips as training in furtherance of the conspiracy, while the defence remained free to argue that the activities were unsophisticated, innocent, and indistinguishable from ordinary hunting or shooting outings. Any residual risk of improper reasoning would be addressed through judicial directions maintaining the presumption of innocence.
On the "training camp" description, the court declined to bar the Crown from making that submission to the jury, but noted that no witness would be invited to use the expression "training camp" directly. The characterisation remained a matter for jury argument rather than witness evidence.
Orders Made
- Evidence of the training camp activities (the two 2005 camping trips) be allowed at trial.
Key Takeaways
- Evidence of camping trips attended by accused persons in a terrorism conspiracy trial was held admissible as part of a broader circumstantial case, notwithstanding that the activities themselves could be characterised as innocent.
- Under the conspiracy rules, the acts and conduct of alleged co-conspirators are capable of being used against an individual accused where there is a basis for inferring that the individual was party to the same agreement.
- The Supreme Court held that s 137 of the Evidence Act 1995 did not require exclusion merely because the jury might draw adverse inferences from otherwise ordinary-looking activities; the competing submissions available to the defence, combined with judicial directions, sufficiently addressed the prejudice concern.
- Where a jury is asked to evaluate ambiguous conduct as part of a circumstantial case, the court's role is to admit the evidence and provide appropriate directions, not to pre-empt the jury's assessment of competing inferences.
- Sufficient flexibility exists for the Crown to characterise admitted evidence in submissions as consistent with criminal purpose, provided no witness adopts a label that the evidence does not independently support.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth)
- Evidence Act 1995 (NSW), ss 56, 137
Cases
- Ahern v The Queen (1988) 165 CLR 87
- Papakosmos v The Queen (1999) 196 CLR 297
- Smith v The Queen [2001] 206 CLR 650
- R v Chai (1992) 27 NSWLR 153
- R v Masters (1992) 26 NSWLR 465
- Odgers, Uniform Evidence Law (5th ed), p 114 (secondary source cited)