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Supreme Court 18 December 2015

R v Khalid (No. 2)

[2015] NSWSC 1921

Firearms & weaponsPublic order & justice offences
CRIMINAL LAW EVIDENCE COMPLIANCE WITH SUCH PROVISION EVIDENCE PROBATIVE VALUE OF THE EVIDENCE HIGH EVIDENCE ADMITTED CRIMINAL LAW

Citation: R v Khalid (No. 2) [2015] NSWSC 1921
Court: Supreme Court of New South Wales
Date: 18 December 2015
Judge(s): Bellew J

Background

The accused was charged under s 101.4 of the Criminal Code 1995 (Cth) with intentionally possessing handwritten documents knowingly connected with the preparation for a terrorist act. The documents, seized from a backpack in the accused's bedroom during a police search, contained detailed writings about planned attacks on targets including the Australian Federal Police, ASIO, and Lithgow Correctional Centre.

Two search warrants had been executed at the accused's home on 18 December 2014 as part of a broader counter-terrorism investigation, Operation Appleby. The investigation had involved extensive physical and electronic surveillance of the accused and associates over several months.

The accused filed a notice of motion seeking to have both warrants declared invalid, to exclude all evidence obtained under them, and to exclude two further pieces of Crown evidence: footage from an SBS Insight television program in which the accused expressed certain ideological views, and a YouTube video in which he expressed similar views.

  • Whether the two search warrants were invalid because the officer to whom each warrant was directed had purported to "sign over" execution of the warrant to a different officer, without complying with the relevant provision of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA).
  • If the warrants were invalid, whether the evidence obtained during their execution should nonetheless be admitted in the exercise of the court's discretion under s 138 of the Evidence Act 1995 (NSW).
  • Whether footage of the SBS Insight program and the YouTube video were relevant and, if so, whether their probative value was outweighed by the danger of unfair prejudice under s 137 of the Evidence Act.

Decision

Validity of the warrants: Bellew J found that both warrants were invalid. Each warrant had been directed to a nominated officer, but that officer had purported to transfer execution of the warrant to another officer without complying with the statutory requirements in LEPRA. The court found that LEPRA reflected a parliamentary intention requiring strict compliance with its warrant provisions. The evidence did not establish any agency relationship between the nominated officer and the executing officer that might have cured the deficiency. Accordingly, the warrants were declared illegal.

Discretionary admission of the evidence: Although the warrants were invalid, the court exercised its discretion under s 138 of the Evidence Act to admit the evidence obtained during their execution. The non-compliance arose from ignorance of the relevant statutory provision rather than any deliberate or reckless disregard of the law, and there was no bad faith on the part of police. The probative value of the documents was high, and the illegality had no effect on the cogency or reliability of the evidence itself. Balancing those factors, the court concluded that the desirability of admitting the evidence outweighed the undesirability of doing so.

The Insight program footage: The court found that the accused's statements on the SBS Insight program were relevant to the charge and that their probative value was not outweighed by the danger of unfair prejudice. Any prejudice arising from the accused's appearance or demeanour could be addressed by an appropriate jury direction. The court noted, however, that the footage should be edited before it is placed before the jury so as to minimise statements made by other participants, since those statements would not be admissible against the accused. The Crown's statements made by the accused on the program were admitted.

The YouTube footage: The court similarly found that the accused's statements in the YouTube video were relevant and admissible. Their probative value was not outweighed by the risk of unfair prejudice, and the same reasoning about jury directions applied. The notice of motion was dismissed in its entirety.

Orders Made

  • The notice of motion is dismissed.

Key Takeaways

  • Under LEPRA, the requirements governing to whom a search warrant is directed demand strict compliance; a purported "sign-over" of a warrant to a different officer, without meeting the statutory conditions, renders the warrant invalid.
  • Where an agency relationship between a nominated officer and an executing officer is asserted as a means of curing non-compliance with a warrant provision, evidence of that relationship must actually establish it; an assertion alone is insufficient.
  • Even where a search warrant is found to be illegal, evidence obtained during its execution may still be admitted under s 138 of the Evidence Act where the illegality arose from innocent ignorance rather than deliberate or reckless conduct, and where the probative value of the evidence is high and its reliability unaffected by the illegality.
  • Evidence of an accused's expressed ideological views, whether in a broadcast television program or a self-produced video, may be relevant and admissible in a terrorism prosecution where those views bear on the elements of the charged offence, provided probative value is not outweighed by unfair prejudice.
  • Potential unfair prejudice arising from an accused's appearance or demeanour in video footage does not, of itself, warrant exclusion of admissible statements contained in that footage, provided the court can give an appropriate jury direction.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), s 101.4
- Evidence Act 1995 (NSW), ss 137, 138
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Court Suppression and Non-publication Orders Act 2010 (NSW)
- Crimes Act 1914 (Cth)

Cases
- Bunning v Cross (1978) 141 CLR 54
- Christie v Permewan, Wright and Co Limited (1904) 1 CLR 693
- Doddridge v Tasmania [2010] TASCCA 18
- Festa v R (2001) 208 CLR 593
- George v Rockett (1990) 170 CLR 104
- Lodhi v R (2007) 179 A Crim R 470
- Nye v NSW [2002] NSWSC 1270
- O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
- R v Alquidsi [2015] NSWSC 1615
- R v Glennon (1992) 173 CLR 592
- Zaknic Pty Limited v Svelte Corp Pty Limited (1995) 61 FCR 171