Citation: R v Azari (No 7) [2018] NSWSC 1680
Court: Supreme Court of New South Wales
Date: 2 November 2018
Judge(s): N Adams J
Background
The accused faced retrial on a charge under the Criminal Code Act 2005 (Cth) of doing an act in preparation for a terrorist act. The Crown case centred on a telephone conversation of 15 September 2014 between the accused and a senior Islamic State figure based in Syria or Iraq, during which the Crown alleged the two men discussed a plan to kill random members of the Australian public.
The accused's defence was that he had only pretended to go along with the plan, without any genuine intention to prepare for or commit a terrorist act. The central fact in issue was therefore the accused's state of mind at the time of that call.
Before the retrial commenced in October 2018, the Crown sought to tender 14 intercepted telephone calls between third parties, none of which involved the accused or mentioned him. Following voir dire argument, the Crown pressed four calls. This ruling concerns those four calls.
Legal Issues
- Whether the four intercepted third-party telephone conversations were relevant to the accused's state of mind at the time of the 15 September 2014 call.
- Whether those conversations were admissible as non-hearsay circumstantial evidence under section 60(1) of the Evidence Act 1995 (NSW).
- Whether, to the extent the conversations were hearsay, they were admissible as representations made in furtherance of a common purpose under section 87(1)(c) of the Evidence Act.
- Whether the contents of call 201 were admissible given their vagueness and limited connection to a fact in issue.
Decision
Issue 1: Relevance of calls 5, 15 and 39
Adams J accepted that the threshold for relevance under section 55(1) of the Evidence Act is a low one. Her Honour found the three calls technically relevant but noted their relevance was low, given the substantial formal admissions the accused had made under section 184, which already covered many of the facts the Crown sought to establish (at [39]). The calls occurred up to 18 months before the relevant telephone conversation and did not mention the accused at all (at [38]).
Issue 2: Admissibility as non-hearsay circumstantial evidence (s 60)
The Crown argued, relying on Wing Cheong Li v R and Tsang v R, that the calls were admissible as circumstantial evidence without engaging the hearsay rule. Adams J rejected this argument. Her Honour found that the inferences the Crown sought to draw from the conversations between Alqudsi and Baryalei, including the accused's membership of the shura and his alleged shared beliefs and intentions, could only be drawn by proving what was actually asserted within those conversations (at [47]). The calls were therefore either inadmissible as hearsay or, if not tendered for a hearsay purpose, irrelevant (at [47]).
Issue 3: Admissibility as common purpose admissions (s 87(1)(c))
The Crown alternatively argued the calls were admissible as representations made in furtherance of a common purpose. Following provision of the Court of Criminal Appeal's decision in Decision Restricted [2018] NSWCCA 127, which held that section 87(1)(c) does not extend to a common purpose other than the one the subject of the proceedings, the Crown conceded this argument could not be sustained and withdrew it (at [49]-[51]). Calls 5, 15 and 39 were ruled inadmissible (at [52]).
Issue 4: Call 201
Call 201 was a conversation between Alqudsi and another man, from which the Crown sought to infer that a third person, Atai, did not attend a meeting on that day. Adams J found that the bare fact of the call, including its subscribers and participants, was relevant and admissible as circumstantial evidence. However, the contents of the call were vague and not capable of rationally affecting the assessment of any fact in issue, and were therefore excluded (at [53]).
Orders Made
- The telephone intercept evidence comprised of calls 5, 15, 39 and 201 is inadmissible.
Key Takeaways
- Where the inferences a party seeks to draw from third-party conversations can only be drawn by accepting the truth of what was asserted in those conversations, the evidence will be hearsay and cannot be rescued by framing it as non-hearsay circumstantial evidence under section 60(1) of the Evidence Act (at [44]-[47]).
- The distinction between hearsay and non-hearsay use of intercepted third-party calls is not resolved simply by a party asserting a non-hearsay purpose; the court examines whether the proposed inferences are in fact logically dependent on proof of the asserted facts (at [45]-[47]).
- Section 87(1)(c) of the Evidence Act, which provides an exception to the hearsay rule for representations made in furtherance of a common purpose, is confined to the common purpose that is the subject of the proceedings, following Decision Restricted [2018] NSWCCA 127 (at [49]-[51]).
- Formal admissions made under section 184 of the Evidence Act bear directly on the residual relevance of third-party intercept evidence: where admissions substantially cover the facts sought to be established, the marginal relevance of additional intercepts may be very low (at [39]).
- The fact of a telephone call, together with subscriber and participant details, may be admissible as circumstantial evidence even where the contents of that same call are excluded as insufficiently probative (at [53]).
Legislation and Cases Referenced
Legislation
- Criminal Code Act 2005 (Cth), Sch, s 101.6
- Evidence Act 1995 (NSW), ss 55, 59 ,60 ,66A, 81, 87, 184
Cases
- Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39
- Decision Restricted [2018] NSWCCA 127
- R v Azari (No 2) [2017] NSWSC 515
- R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA 494
- Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22
- Tsang v R (2011) 35 VR 240; [2011] VSCA 336
- Wing Cheong Li v R (2010) 199 A Crim R 419; [2010] NSWCCA 40