Citation: Regina (C'Wealth) v Baladjam & Ors [No 7] [2008] NSWSC 756
Court: Supreme Court of New South Wales
Date: 15 April 2008
Judge(s): Whealy J
Background
Nine men were charged with conspiring to do acts in preparation for a terrorist act or acts. The Crown alleged the accused shared common beliefs about violent jihad and entered into an agreement to acquire knowledge, materials, weapons, and ammunition in preparation for terrorism. The Crown's case was broadly circumstantial.
As part of its pre-trial evidence, the Crown sought to lead evidence that one accused, Moustafa Cheikho, had attended a Lashkar-e-Taiba (LeT) training camp in Pakistan in late 2001, participating in physical and firearms training under an assumed name. Since 2001, LeT has been proscribed as a terrorist organisation by the Australian government.
The evidence had two overlapping components: the fact of LeT training itself, and identification evidence purporting to place Moustafa Cheikho at the camp. A witness named Yong Ki Kwon, who had attended the same camp, claimed to identify Cheikho among the trainees. Defence counsel for several accused applied to exclude this evidence, raising questions of relevance, identification reliability, and unfair prejudice.
Legal Issues
- Whether evidence of LeT training by one accused was relevant under sections 55 and 56 of the Evidence Act 1995, either as a fact in issue or as a fact relevant to a fact in issue
- Whether identification evidence should be excluded under section 137 of the Evidence Act 1995 on the ground that its probative value was outweighed by unfair prejudice
- Whether evidence of a resource (the overseas training) used in furtherance of a conspiracy is admissible against all co-conspirators, or only against the accused directly involved
- Whether the training, occurring approximately two and a half years before the alleged conspiracy, could constitute admissible evidence in the context of that later conspiracy
Decision
Whealy J admitted the LeT training evidence and the associated identification evidence against Moustafa Cheikho only. His Honour was satisfied the evidence was relevant to the facts in issue in Cheikho's case: it was capable of rationally affecting the assessment of whether he held the requisite beliefs and was party to the alleged agreement.
On the identification evidence, his Honour declined to exclude it under section 137. While acknowledging issues of credibility and reliability, his Honour held those were matters for the jury, subject to appropriate directions, and did not rise to the level of unfair prejudice that would warrant exclusion at the pre-trial stage. This approach was consistent with the line of authority established in cases such as R v Shamouil and R v Mundine, which confirm that credibility and reliability concerns generally remain within the jury's province.
The more contested question concerned whether the training evidence could be admitted against the other eight accused. His Honour held it could not, at least at that stage. The key reason was the absence of evidence linking Cheikho's overseas training to the later conspiracy as a shared resource. Where evidence of one conspirator's activity cannot be shown to have been used as a resource within the conspiracy itself, it does not automatically become admissible against co-conspirators simply because those individuals are parties to the same alleged agreement.
His Honour acknowledged that the position might change during trial depending on what the defence raised and what further evidence emerged. He also noted the two-and-a-half-year gap between the training and the alleged conspiracy, and declined to read the authorities as establishing any absolute rule about past conduct of one conspirator being inadmissible in a later conspiracy, while finding the nexus was absent on the current state of the evidence.
Orders Made
- The evidence of LeT training by Abood Absud (Moustafa Cheikho's alleged camp name) and the identification evidence are admitted against Moustafa Cheikho.
- The evidence is not admitted against the other accused at this stage.
Key Takeaways
- Evidence of one conspirator's conduct, including overseas terrorism training, is not automatically admissible against all co-accused in a conspiracy trial: a nexus must exist connecting that conduct to a shared resource used within the conspiracy itself.
- Where that nexus is absent on the available evidence, a court may admit the evidence against the directly implicated accused only, leaving open the question of wider admissibility if the evidentiary picture changes at trial.
- Under section 137 of the Evidence Act 1995, concerns about the credibility and reliability of identification evidence are generally matters for the jury rather than grounds for pre-trial exclusion, provided appropriate jury directions can be given.
- A significant temporal gap between a past event and the formation of an alleged conspiracy does not automatically render that past event inadmissible, but it may affect whether a sufficient connection to the conspiracy can be established.
- Rulings on admissibility in complex, multi-accused trials may be made on a provisional basis, explicitly preserving the court's ability to revisit them as evidence develops at trial.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 55, 56, 137
- Criminal Code Act 1995 (Cth)
Cases
- R v Shamouil (2006) 66 NSWLR 228
- R v Lodhi [2007] NSWCCA 360
- R v Mundine [2008] NSWCCA 55
- R v Sood [2007] NSWCCA 214
- R v Masters (1992) 26 NSWLR 450
- R v Tripodi (1961) 104 CLR 1
- Smith v The Queen [2001] 206 CLR 650
- Papakosmos v The Queen (1999) 196 CLR 297
- R v Lodhi [2006] NSWSC 641
- J D Blick [2000] 111 A Crim R 26
- Rex v Gunn & Howden (1930) 30 SR 336