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53
Court of Criminal Appeal 12 December 2014

Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R

[2014] NSWCCA 303

Also reported as (2014) 316 ALR 206
Public order & justice offences
CRIMINAL LAW APPEAL CONVICTION WHETHER MISCARRIAGE OF JUSTICE EVIDENCE ADMITTED PUBLICITY BEFORE TRIAL

Citation: Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303
Court: NSW Court of Criminal Appeal
Date: 12 December 2014
Judges: Bathurst CJ; Hoeben CJ at CL; Simpson J

Background

In November 2005, nine men were arrested in Sydney and charged with terrorism-related offences under the Criminal Code (Cth). Following extensive pre-trial proceedings before Whealy J in the Supreme Court, five of the nine (the appellants) were tried jointly before a jury on charges of conspiracy to do acts in preparation for a terrorist act or acts. Three of the remaining four had pleaded guilty to related charges; a fourth was initially found unfit to stand trial.

The Crown case rested on ten broad categories of evidence, including the appellants' physical conduct, possession of extremist and instructional material, acquisition of chemicals and firearms, use of mobile phones registered in false names, and the application of counter-surveillance techniques. Evidence was also led concerning events in Melbourne involving other alleged conspirators, described as "the Melbourne evidence."

All five appellants were convicted and sentenced to substantial terms of imprisonment. They each appealed against conviction, and sought leave to appeal against sentence.

The appeals raised a wide range of grounds. The principal legal questions included:

  • Whether "the Melbourne evidence," including publicity about linked offenders and a recorded conversation, was properly admitted, having regard to relevance, prejudice, tendency evidence rules, and the co-conspirators' rule
  • Whether identification evidence concerning one appellant's attendance at a training camp in Pakistan was admissible, and whether it constituted tendency evidence under s 97 of the Evidence Act 1995 (NSW)
  • Whether the trial judge erred in refusing to discharge the jury after pre-trial publicity
  • Whether gruesome imagery was properly admitted and whether the directions given about it were adequate
  • Whether the trial judge erred in refusing separate trials
  • Whether the trial judge should have dismissed the conspiracy charge under s 11.5(6) of the Criminal Code (Cth)
  • Whether the Crown prosecutor's final address contained impermissible invitations to draw inferences or reversed the onus of proof
  • Whether directions to the jury on the characteristics of a "terrorist act" under s 100.1(1) and (2) of the Criminal Code were adequate
  • Whether any of the verdicts were unreasonable
  • Whether the sentences were affected by errors in factual findings, parity with co-offenders, excessive weight given to aggravating features, insufficient weight given to custodial conditions, or were manifestly excessive

Decision

Conviction appeals

The Court dismissed all five conviction appeals. On the Melbourne evidence, the Court found that the evidence was relevant and that its probative value was not outweighed by the danger of unfair prejudice. The Court clarified that, when assessing probative value, it is impermissible to take into account the credibility or reliability of a witness. The Court also confirmed that the co-conspirators' rule extends to admissions under s 87(1)(c) of the Evidence Act and is not confined to statements made in furtherance of the conspiracy.

On the identification evidence concerning the Pakistan training camp, the Court accepted that it was properly admitted. The Court distinguished between tendency evidence (evidence of conduct showing a tendency) and evidence of state of mind, noting that state of mind evidence does not necessarily constitute a series of intermittent events and operates differently from tendency evidence in terms of the applicable admissibility tests. The Court also found no error in the refusal to order separate trials, and concluded that the conspiracy charge should not have been dismissed under s 11.5(6), as no disadvantage or injustice to the appellants had been demonstrated.

On the Crown prosecutor's address, the Court found that, while rhetorical questions in a closing address require careful scrutiny, the questions asked had an adequate evidentiary basis, adequate judicial directions on drawing inferences were given, and the address did not reverse the onus of proof or render the trial unfair when considered in context. The directions on the definition of "terrorist act" were likewise held to be adequate when read in the full context of the oral charge.

Sentence appeals

The Court granted leave to appeal against sentence in each case but dismissed all sentence appeals. It rejected arguments that the sentencing judge had treated elements of the offence as aggravating features, found no parity error of substance among the appellants, and declined to find that insufficient weight had been given to custodial conditions or cultural isolation. The Court upheld findings of poor prospects of rehabilitation, noting that the mental element of the conspiracy offence was directly relevant to this assessment. It also found that the sentences, though severe, were not manifestly excessive given the gravity of the offending: a conspiracy to prepare for a terrorist act targeting members of the public, interrupted before harm occurred but well advanced in preparation.

Orders Made

For each of the five appellants, the Court made the following orders:

  • Appeal against conviction dismissed
  • Leave granted to appeal against sentence
  • Appeal against sentence dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that, when assessing the probative value of evidence for admissibility purposes, a court cannot take into account questions of the witness's credibility or reliability; those are matters for the jury at the end of the trial.

  • A distinction exists between tendency evidence (evidence of prior conduct establishing a propensity) and evidence of state of mind: the latter does not necessarily involve a series of intermittent events or acts and engages different admissibility considerations under the Evidence Act 1995 (NSW).

  • Under the co-conspirators' rule, admissions by a co-conspirator are capable of admission under s 87(1)(c) of the Evidence Act regardless of whether they were made in furtherance of the conspiracy; the rule is not limited to statements made in furtherance of the common purpose.

  • In dismissing the sentence appeals, the Court affirmed that the mental element of a conspiracy offence is directly relevant to the assessment of prospects of rehabilitation, particularly where an accused has not given evidence and the conviction itself reflects a deliberate shared intention to prepare for mass harm.

  • Parity principles require a sentencing court to identify genuine differences in culpability between co-offenders; participation in a single conspiracy means that specific acts of other conspirators are attributable to each member, and differences in sentence must be proportionate to genuine differences in the nature and extent of each individual's involvement.

Legislation and Cases Referenced

Legislation

  • Criminal Code (Cth), ss 11.5, 100.1, 101.1(1), 101.4, 101.6
  • Evidence Act 1995 (NSW), ss 55, 56, 81, 87, 95, 97, 101, 137, Pt 3.2, Pt 3.4
  • Crimes Act 1914 (Cth), ss 16A(1), 16(2A)(b), 19AG(3)(a)
  • Criminal Appeal Act 1912 (NSW), ss 5F, 6
  • Jury Act 1977 (NSW), ss 19(2), 55D
  • Surveillance Devices Act 2007 (NSW)
  • Telecommunications (Interception and Access) Act 1979 (Cth)

Key cases cited

  • Ahern v The Queen [1988] HCA 39; 165 CLR 87
  • Elias v The Queen; Issa v The Queen [2013] HCA 31; 248 CLR 483
  • James v The Queen [2014] HCA 6; 88 ALJR 427
  • Libke v The Queen [2007] HCA 30; 230 CLR 559
  • Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265
  • Lodhi v The Queen [2006] NSWCCA 121; 199 FLR 303; [2007] NSWCCA 360; 179 A Crim R 470
  • Benbrika v R [2010] VSCA 281; 29 VR 593
  • House v The King [1936] HCA 40; 55 CLR 499
  • Gilbert v The Queen [2000] HCA 15; 201 CLR 414
  • Gerakiteys v The Queen [1984] HCA 8; 153 CLR 317