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Supreme Court 10 May 2017

R v Azari (No 4)

[2017] NSWSC 563

Firearms & weaponsPublic order & justice offences
CRIMINAL LAW TERRORISM TRIAL WHETHER EVIDENCE RELEVANT

Citation: R v Azari (No 4) [2017] NSWSC 563
Court: Supreme Court of New South Wales
Date: 10 May 2017
Judge: N Adams J

Background

The accused was charged with an offence under s 101.6 of the Criminal Code (Cth) of doing an act in preparation for, or planning, a terrorist act. The Crown alleged that on 15 September 2014 the accused participated in a telephone conversation with Mohammad Ali Baryalei, a senior figure in Islamic State then located in Syria or Iraq, in which they discussed a plan to kill random members of the public in Australia.

During that telephone conversation, the accused referred to a "brother" from Brisbane who had "planned everything very well" and whose "plan" was known to the accused. The Brisbane man was Agim Kruezi, who had been arrested on terrorism and foreign incursion charges five days before the call. Evidence also placed Kruezi in the company of the accused on multiple occasions in August 2014.

The central dispute in this pre-trial ruling concerned paragraph [415] of the Crown Case Statement, which described items found at Kruezi's home during a search warrant executed on 10 September 2014: weapons, improvised incendiary device materials, an Islamic State flag, and extremist literature. The accused's legal representatives objected to the admission of that evidence, including photographs of the seized items (exhibit VD8) and images downloaded from Kruezi's devices when he attempted to leave Australia in March 2014.

  • Whether the description of items found at Kruezi's home during his arrest was relevant to the accused's trial under s 55 of the Evidence Act 1995 (NSW).
  • Whether, if relevant, that evidence ought to be excluded under s 137 of the Evidence Act because the danger of unfair prejudice to the accused outweighed its probative value.
  • Whether the photographs of the seized items (VD8) were separately admissible or should be excluded under s 137.
  • Whether images downloaded from Kruezi's devices in March 2014 were admissible.

Decision

Adams J found that the description of what was found at Kruezi's home was relevant evidence. The accused's own words in the telephone conversation, specifically the claim that he possessed Kruezi's "plan," raised a rational inference that the accused had actual knowledge of what Kruezi had prepared. The items found at Kruezi's home were therefore capable of shedding light on the nature and content of any plan the accused claimed to know about, and on the accused's state of mind.

On the s 137 question concerning the general description of the seized items, Adams J was not satisfied that the danger of unfair prejudice outweighed the probative value. The judge noted that jury directions could appropriately limit any risk of the jury misusing the evidence in a way logically unconnected to the issues, drawing on the reasoning in Colby v The Queen.

The photographs in VD8 were treated differently. Adams J found that, while their probative value was not materially greater than a verbal description of the same items, the risk of unfair prejudice was significant. In a case where no weapons were ever found in the accused's own possession, the photographs carried a real risk of becoming disproportionately prominent in the jury room. The photographs were therefore excluded under s 137.

The images from Kruezi's devices dating from March 2014 were also excluded. Their probative value was low given the timing and the absence of any direct link to the accused's statements in the telephone conversation. Adams J noted that, where there appeared to be no dispute that Kruezi had been attempting to leave Australia to join Islamic State, the extremist content on his devices did not meaningfully advance the Crown case.

Orders Made

  • The description of evidence in paragraph [415] of the Crown Case Statement filed 10 April 2017 is admissible.
  • The photographs in VD8 are inadmissible.

Key Takeaways

  • Under s 55 of the Evidence Act 1995 (NSW), evidence about a co-accused's seized items can be relevant to a separate accused's trial where that accused's own admissions in a recorded conversation raise an inference of direct knowledge of the co-accused's activities.
  • The probative value versus unfair prejudice balancing exercise under s 137 can produce different outcomes for different forms of the same underlying evidence: a verbal description may be admissible while photographs of identical subject matter are excluded.
  • Where no equivalent incriminating items were found in the accused's own possession, graphic photographic exhibits from a co-accused's arrest carry a heightened risk of disproportionate weight in jury deliberations, a factor that can tip the s 137 balance toward exclusion.
  • The timing and contextual connection of evidence to the specific conduct charged matters when assessing probative value: materials from Kruezi's devices in March 2014 were too remote and insufficiently linked to the September 2014 telephone conversation to justify admission.
  • Adams J indicated that rulings could be revisited at trial if the factual basis underlying a ruling changed, reflecting the inherently provisional character of pre-trial evidentiary decisions.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 101.6 (doing an act in preparation for, or planning, a terrorist act)
- Evidence Act 1995 (NSW), s 55 (relevant evidence)
- Evidence Act 1995 (NSW), s 137 (exclusion of prejudicial evidence in criminal proceedings)

Cases
- Colby v The Queen [1999] NSWCCA 261
- IMM v The Queen (2016) 330 ALR 382; [2016] HCA 14