FEDERAL COURT OF AUSTRALIA

Sage an examiner appointed under s 46B of the Australian Crime Commission Act 2002 v ZZ [2015] FCA 417

THE COURT ORDERS THAT:

1.    The bail conditions imposed on 15 April 2014, in order 11 made that day, be continued until further order.

2.    The respondent attend personally before the court at 2.15 pm on 8 May 2015.

3.    Liberty to either party to apply on such notice as may be appropriate.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    The applicant is an examiner appointed under s 46B of the Australian Crime Commission Act 2002 (Cth). The examiner laid nine charges under s 34A(c) of the Act of the Australian Crime Commission, against the respondent, who has been given the pseudonym ZZ. The respondent was a witness in an examination conducted by the examiner under the Act. During the hearing of these proceedings, the examiner withdrew three of the charges.

2    Relevantly, each remaining charge alleged that at hearings before the examiner on 3 February 2014 and 7 March 2014, the respondent committed a contempt of the Commission in that he gave evidence that he knew to be false in a material particular, contrary to s 34A(c) of the Act. The respondent has pleaded not guilty to each charge.

Background

3    In essence, the respondent gave evidence before the examiner at the 3 February 2014 hearing, and in the subsequent hearing adhered to that evidence, that he did not know and could not identify or recollect knowing a man who has been given the pseudonym YAAY in these proceedings. The examiner’s case relied on, among other matters, the respondent’s admission in his evidence on 7 March 2014 that he in fact knew YAAY and the receipt on the respondent’s phone of SMS messages from YAAY’s mobile phone in the two months before the respondent attended the international terminal departure area at Sydney Airport, at about 6.25 pm on 29 September 2013, where YAAY was checking into a flight preparing to leave Australia and CCTV footage taken at the airport.

4    That footage showed the respondent as one of a number of persons in the vicinity of YAAY before he checked into his flight. Shortly after YAAY completed checking in, the CCTV footage showed him and the respondent engaged in conversation, immediately before both men began walking away from the larger group. The two men encountered some other men, who appeared to be well-wishers for YAAY’s imminent departure, and then he and the respondent were shown walking away together and continuing to walk around the airport departure hall in conversation for some minutes.

5    YAAY’s passports, issued by the governments of Australia and a Middle Eastern country and his signed departure card dated 29 September 2013 identify him as the man in the CCTV footage dressed in a distinctive white robe and head covering. There were other persons present in the departure hall captured in the CCTV footage who were also dressed in similar white garments.

The issues and the six counts of contempt

6    The critical issue is whether from a psychiatric and psychological diagnosis that the respondent was suffering from post-traumatic stress disorder, known as PTSD, at the time of the airport encounter and also at the time of the hearings before the examiner, raises a reasonable doubt that he did not give the evidence complained of knowing that it was false.

7    The examiner carried the onus on this, and all other issues in the proceedings, that required him to prove beyond reasonable doubt that the respondent was guilty on each charge. Contempt of court, to which the statutory contempt created by s 34A(c) is analogous, is a criminal offence that requires the prosecution to satisfy the tribunal of fact beyond reasonable doubt of the alleged contemnor’s guilt.

8    The six charges can be broken into two groups. The first three deal with contempts alleged to have occurred at the examination on 3 February 2014. The second three deal with contempts alleged to have occurred at the second examination on 7 March 2014. In the latter group of charges, the allegation is effectively that the respondent gave the same answers to questions in respect of which the first group of charges asserted he was in contempt.

9    Count 1 related to questions and the respondent’s answers when the respondent was shown a photograph, examination exhibit 4. That was a photograph of a group of persons taken from the CCTV footage at the airport at 19:04:27 on 29 September 2013. The count alleged that when he asserted that he did not know or recognise YAAY in it, those answers were false to his knowledge in a material particular in respect of YAAY. The respondent had been asked a variety of questions over about 18 pages of the examination transcript as to whether he knew any of the persons in the photograph and, in particular, whether he knew the man in the white robe, whom other evidence established was YAAY. The photograph in exhibit 4 is a poorly focused depiction in which the man in the white robe’s face is quite blurred, to the point where his nose is not apparent. Although one can see that he is bearded and has eyebrows, in my opinion, his facial features are not sufficiently prominent to enable anyone to say with certainty who the person in the photograph was unless one was aware of the surrounding CCTV footage.

10    Count 2 relates to the respondent’s answers to examination exhibit 5, which was a much better focused photograph taken from the CCTV footage at 18:57:32. That photograph shows YAAY in a way in which he is clearly recognisable. The count alleged that, when shown the photograph, the respondent was asked whether he recognised any people in it and he said that he did not. He was later asked whether he was able to identify anyone else in the photograph apart from himself, after he had subsequently realised that he appeared with his face partially obscured by the timestamp in the top left of the photograph. The count alleged that the respondent knew, and was able to identify, some of the persons shown in exhibit 5, including YAAY, and that he had arranged to meet YAAY at the airport on 29 September 2013. By reason of those matters, Count 2 alleged that the answers the respondent gave were false to his knowledge in a material particular in respect of YAAY.

11    Count 3 alleged that the respondent was shown examination exhibit 6, a photograph of YAAY in which he was bareheaded. The respondent was asked, immediately after being questioned on exhibit 5, who the person in exhibit 6 was and answered that he did not know the person, did not recall meeting anyone with the person’s face, did not recall meeting the person and, to the best of his recollection, had not seen or spoken to the person in the photograph. The count alleged that the man in the photo was YAAY, that the respondent knew him and had spoken to him and that the answers were false to his knowledge in a material particular.

12    The particulars of Count 5 relied upon the respondent’s answers to questions concerning exhibit 4 on 7 March 2014 at the resumed examination. He was asked whether he recognised anyone in that photograph to which he responded “no one” and, in particular, whether he recognised the man in the white hat on the right to which had responded “no”. The count alleged that he, the respondent, knew that the man on the right was YAAY and that his answers were false in a material particular. As I mentioned earlier, exhibit 4 is a badly focused photograph.

13    Count 6 alleged that when shown exhibit 5 on 7 March 2014, the respondent was asked whether he recognised any of the people in the photograph and, in particular, the man standing at the counter in the white hat and that he answered to the effect that he recognised himself in the photograph but not any of the other people in the photograph and, specifically, did not recognise the man standing at the counter in the white hat. The count alleged that that man was YAAY, the respondent knew him and that accordingly the answers he gave were false in a material particular.

14    Count 7 alleged that at the 7 March 2014 examination when the respondent was shown exhibit 6, he was asked whether he recognised the man in it and responded “no”. The examiner asked whether the respondent had ever seen that man before, to which he responded: “No, not that I recall”. The examiner then asked: “And, obviously, you don’t know his name?”, to which the respondent answered: “No”. The count alleged that the man in the photograph was YAAY, and that because the respondent had seen and knew him, his answers were false to his knowledge in a material particular.

The legislative scheme

15    Under s 30(2)(b) of the Act, a person appearing as a witness at an examination before an examiner shall not “refuse or fail to answer a question that he or she is required to answer by the examiner”. Relevantly, ss 34A and 34B provide that:

34A    Contempt of the ACC

A person is in contempt of the ACC if he or she:

(c)    gives evidence at an examination before an examiner that he or she knows is false or misleading in a material particular

34B    Federal Court or Supreme Court to deal with contempt

(1)    If an examiner is of the opinion that, during an examination before the examiner, a person is in contempt of the ACC, the examiner may apply to either of the following courts for the person to be dealt with in relation to the contempt:

(a)    the Federal Court;

…

(3)    The application must be accompanied by a certificate that states:

(a)    the grounds for making the application; and

(b)    evidence in support of the application.

…

(5)    If, after:

(a)    considering the matters specified in the certificate; and

(b)    hearing or receiving any evidence or statements by or in support of the ACC; and

(c)    hearing or receiving any evidence or statements by or in support of the person;

the Court to which the application was made finds that the person was in contempt of the ACC, the Court may deal with the person as if the acts or omissions involved constituted a contempt of that Court.

(6)    For the purposes of determining whether a person is in contempt of the ACC under subsection (1), Chapter 2 of the Criminal Code applies as if:

(a)    contempt of the ACC were an offence; and

(b)    references to a person being criminally responsible for an offence were references to a person being responsible for contempt of the ACC.

16    The proceedings must be carried on, heard and determined in accordance with the applicable laws, including the Federal Court Rules 2011 (Cth): see s 34C(2) of the Act. However, the examiner’s certificate is prima facie evidence of the matters it certifies (s 34C(3)).

17    It is common ground that the provisions of the Criminal Code (Cth) in the schedule to the Criminal Code Act 1995 (Cth) apply to the proof of the counts. Under Ch 2, Pt 2.2 of the Code, the following provisions are relevant:

Division 4 – Physical elements

4.1    Physical elements

(1)    A physical element of an offence may be:

(a)    conduct; or

(2)    In this Code:

conduct means an act, an omission to perform an act or a state of affairs.

4.2    Voluntariness

(1)    Conduct can only be a physical element if it is voluntary.

(2)    Conduct is only voluntary if it is a product of the will of the person whose conduct it is.

(3)    The following are examples of conduct that is not voluntary:

(a)    a spasm, convulsion or other unwilled bodily movement;

(b)    an act performed during sleep or unconsciousness;

(c)    an act performed during impaired consciousness depriving the person of the will to act.

Division 5 – Fault elements

5.1    Fault elements

(1)    A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.

(2)    Subsection (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence.

…

5.6    Offences that do not specify fault elements

(1)    If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.

(2)    If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

Note:    Under subsection 5.4(4), recklessness can be established by proving intention, knowledge or recklessness.

18    It is common ground that the elements of each count under s 34A(c) of the Act are that the examiner must prove beyond reasonable doubt that:

(1)    the respondent gave evidence;

(2)    he did so at an examination before the examiner;

(3)    the evidence was false in a material particular; and

(4)    the respondent knew that the evidence he gave was false in a material particular, knowledge being the intention required under s 5.6(1) of the Code.

19    The relevant conduct was the giving of the evidence complained of. There is no dispute, on any of the six counts, that the respondent gave evidence and that he did so at an examination before an examiner. The real issues are in relation to the third and fourth elements, namely, whether the evidence was false in a material particular, and whether the respondent knew that to be so.

The examiner’s certificate

20    The examiner certified that on 25 January 2014, he summonsed the respondent to give evidence at an examination that was to be held on 3 February 2014.

21    The examiner’s certificate stated that the purpose of the summons was a special Commission operation that was being conducted in support of an Australian Federal Police/Joint Counter Terrorism Team Operation investigation into certain alleged activities of YAAY and others. I have made several suppression and non-publication orders concerning the details of the investigation under s 37AF of the Federal Court of Australia Act 1976 (Cth) on the grounds that they were necessary, first, to prevent prejudice to the interests of the Commonwealth in relation to national and international security, secondly, to protect the safety of persons, including the respondent, and thirdly, to prevent prejudice to the proper administration of justice.

22    The examiner certified that his purpose in seeking to conduct the examination of the respondent was to ask important questions in relation to the operation arising from what the certificate stated (that is prima facie evidence of the facts under s 34C(3) of the Act) was:

the [r]espondent’s known close relationship with YAAY. In particular, it is known that the [r]espondent was regularly in contact with YAAY prior to the arrest of YAAY on [a date subsequent to 29 September 2013] and that the [r]espondent was present at Sydney Airport when YAAY and his wife attempted to travel to Saudi Arabia on 29 September 2013. This is consistent with the [r]espondent being YAAY’s ‘right hand man’.

23    The examination was held on 3 February and then adjourned, initially, to 11 February 2014. The examiner certified that exhibits 4, 5 and 6 were material exhibits tendered into evidence in the examination before him on 3 February 2014.

24    However, on 6 February 2014, the respondent was arrested at Sydney Airport trying to leave Australia for Vietnam pursuant to an arrest warrant issued by Wigney J under s 31 of the Act. The respondent was subsequently brought before his Honour and granted bail on certain conditions, including that he attend the adjourned examination on 12 February 2014. The examiner certified that the respondent attended on that occasion. He was then represented by Mr Butterfield of counsel. The examiner subsequently adjourned the examination to 7 March 2014 on which occasion Mr Butterfield and the respondent, again, attended at the examination. The respondent was examined, and the examination was subsequently adjourned to 15 April 2014. On the latter occasion, the respondent, again, attended with Mr Butterfield and was examined, and adhered to his earlier answers in the respects complained of. The examiner certified that the respondent was then detained and charged by the examiner with contempt of the Commission on a number of counts. Some of those counts have been amended subsequently.

25    The examiner certified that he had formed the opinion that the respondent had given evidence that he knew to be false or misleading in a material particular. That was because the respondent’s evidence that he was unable to recognise the persons, and, in particular, YAAY, in exhibits 4, 5 and 6 was false and did not constitute real answers to the questions that had been put to the respondent.

The factual background

26    At the examination on 7 March 2014, the respondent said that he knew a person by YAAY’s real name. During the course of the examination on 3 February 2014, the respondent had produced his mobile phone in answer to the examiner’s requirement that he do so so that the Commission could download its data. That downloading occurred as the examination progressed. The downloaded data identified the respondent’s telephone number for that phone and reproduced over 3,000 SMS or text messages that the phone had received since 11 July 2013. Those messages included six messages received from a mobile phone of YAAY, who was identified in a named person warrant-telecommunications services granted by a federal judge on 26 August 2013 and in force until 23 November 2013, pursuant to s 46A of the Telecommunications (Interception and Access) Act 1979 (Cth).

27    The first SMS was sent by YAAY’s phone on 25 July 2013 and stated, relevantly, “that’s my new number and its very private”. The second and third of YAAY’s SMSs were sent on 29 July 2013, about three hours apart. The former was in a foreign language; the latter stating: “R u coming habibi?” YAAY’s fourth SMS was sent on 20 August 2013 and it read: “Forgive me Habibi we were praying”. The fifth and the sixth SMSs were sent on 1 September 2013, about 4.5 hours apart and read, respectively: “Asalamu alaikum cal me please?” and “Im waiting insha ALLAH”.

28    On 29 September 2013, Federal Agent Michael Walloscheck, an investigator with the joint counter-terrorism team of the Australian Federal Police and a special member of the Commission, attended at the international terminal of Sydney Airport from about 4 pm. He saw the respondent at about 6.25 pm, standing near counter E in the international departures public area. Federal Agent Walloscheck saw YAAY wearing white robes and a white headdress walk up to and greet the respondent and a group of males near counter E at 6.40 pm.

29    At about 6.55 pm, Federal Agent Walloscheck saw the respondent, YAAY, a female and several adolescent males attend check-in counter E and observed YAAY having a conversation with the respondent and other males. Next, he saw the respondent and YAAY join a group of males, some of whom he had seen earlier, and they all had a conversation at the end of counter E at about 7.10 pm. At around 7.30 pm, Federal Agent Walloscheck saw the respondent and YAAY leave the group and walk together through the public area of the international departures section of the airport.

30    At about 8.15 pm that night, YAAY was detained and interviewed by the Australian Customs and Border Protection Service, after he had presented his passport and boarding pass in preparation for boarding his flight.

31    The CCTV footage at the airport captured some of the events described by Federal Agent Walloscheck. It showed YAAY and the respondent as part of a group and also depicted the respondent at the airport at an earlier time that evening. At 19.23 on the CCTV footage time, or about 7.23 pm, YAAY can be seen speaking to a group of males with the respondent directly facing him and looking at him. This discussion continued with the respondent smiling, laughing, talking and interacting with YAAY and the others. The respondent appeared to be engaged and attentive. During this period, YAAY put a white shawl over his white hat and covered his head and neck with the shawl.

32    At about 19.27.15 on the CCTV timing, the respondent and YAAY left the group to whom they had been talking and the respondent can be seen putting his hand on YAAY’s back, as they moved off together, meeting and briefly greeting another group of some older males. At about 19.28 on the CCTV footage, YAAY broke off that meeting and moved toward the respondent who had gone in advance further away from the group. YAAY put his left arm through the respondent’s right arm and they walked off together towards check in area J, some distance away from check in area E. The CCTV footage followed the two men walking, without other people, in an apparent conversation, each turning his head towards the other from time to time while they passed through parts of the terminal. The respondent appeared completely at ease during the walk, from time to time gesturing, turning his head towards YAAY and, apparently smiling.

33    During the course of his examination on 3 February 2014, the respondent gave evidence that he remembered the day he went to the airport, although not the date. He said that he knew that this was the day that his parents had gone to his cousin’s wedding and that he had gone to the airport to say goodbye to the “Hajj people”. He gave evidence that he remembered that he had gone to that airport on that day because of the fact that his parents had gone to the wedding on that day. He was asked about whether he knew the man in the white robe shown in exhibit 4 and said that he did not know that person. He said he was just talking to people and that was it.

34    He was asked a considerable number of questions concerning examination exhibit 4, during which the questioning became, I think it is fair to say, progressively more aggressive towards the respondent, having regard to his non acceptance that he was able to recognise the man in white in exhibit 4.

35    Counsel assisting the examiner then showed exhibit 5 to the respondent. As I have mentioned, that photograph depicted both the respondent, although his face was somewhat obscured by the time stamp at the top left, and, much more clearly, YAAY. Counsel assisting asked the respondent whether he recognised any of the people in that photograph and he answered no to that question. Counsel assisting then asked:

You recognise no one in that photograph?

The respondent answered:

No. I don’t recognise anyone.

36    The respondent was then shown exhibit 6, which was the bareheaded picture of YAAY. The examination then continued:

MR ZZ:        I don’t know I just.

MS DEAKIN:        Speak up what is your evidence?

(Counsel assisting)

MR ZZ    :        Trying to think if I remember anything but.

MS DEAKIN:        Do you know that person?

MR ZZ:        I can’t, I don’t know, I don’t.

MS DEAKIN:        You don’t know?

MR ZZ:        I don’t recall meeting anyone with this face.

MS DEAKIN:        Have you ever met that person?

MR ZZ:        I don’t recall meeting anyone with this face.

MR SAGE:        Have you ever met the person?

(the examiner)

MR ZZ:        I don’t recall if I have or not, or I don’t know who this is.

MR SAGE:        Do you know the name of the person.

MR ZZ:        No.

MR SAGE:        In the pho[to], you don’t know the name?

MR ZZ:        No.

MR SAGE:        Have you ever met the person in the photo?

MR ZZ:        No.

MR SAGE:        No.

MR ZZ:        I don’t know.

MR SAGE:        What is your answer, have you ever met?

MR ZZ:        I don’t know, I don’t recall.

MR SAGE:        You don’t know, you don’t recall.

MR ZZ:        Yeah that’s my answer.

MR SAGE:        You also said no.

MR ZZ:        No I don’t recall, I don’t know. (emphasis added)

37    Some minutes later in the examination, counsel assisting showed the respondent exhibit 5 again and pointed out to him that he was depicted in the top-left of that photograph, which the respondent acknowledged, saying that he had not noticed himself earlier. The respondent then gave this evidence:

MS DEAKIN:        So when you said you didn’t recognise anyone in that photo that was a lie?

MR ZZ:        No it wasn’t a lie, I didn’t see myself.

    …

MS DEAKIN:    … this is very, very serious, if you lie to this Commission, you will be charged and you will go to jail. You need to think very carefully about your answers. Look at the people in exhibit five and tell me who they are.

MR ZZ:        Me on the far left.

MS DEAKIN:        And who else?

MR ZZ:    I don’t know no one there. (emphasis added)

38    It is common ground that towards late 2012, the respondent had been incarcerated by a Middle Eastern intelligence agency for about a month and held in conditions that could induce post-traumatic stress disorder. He was visited by Australian consular officials while in detention. They reported that the respondent advised them that he had no welfare concerns and that he was being well treated. However, that conversation took place while members of the foreign intelligence service were present in the same room, albeit they appeared, according to the consular report, to be chatting among themselves.

39    The respondent was subsequently interviewed by a number of officers of ASIO in the first half of 2013 on five occasions, in which he gave further information concerning the conditions of his detention, some of which was supplemented by information from his father.

Dr Furst’s report

40    Following the hearing on 12 February 2014, Mr Butterfield arranged for the respondent to be examined by Dr Richard Furst, consultant forensic psychiatrist. The respondent attended at Dr Furst’s rooms, and he prepared a report dated 28 February 2014. It suffices to say that Dr Furst found that there were no indications that the respondent suffered from an intellectual disability or had a major mental illness such as schizophrenia or bipolar disorder but that he found him anxious and low in mood. Dr Furst found that there were no indications that the respondent was thought disordered or psychotic and that he had a good understanding of the legal system generally when taken to Presser criteria. He referred to a diagnosis by Dr Elhafi, who appears to have been the respondent’s general practitioner, that the respondent had depression, anxiety, PTSD, with observations of flat affect and mood and slight impairment of cognition, but that there were no indications that he was psychotic or at risk of self-harm. Dr Elhafi’s report is also in evidence.

41    Dr Furst opined that the respondent’s pattern of reported symptoms probably met the criteria for a diagnosis of PTSD, assuming the veracity of the respondent’s self-report. Dr Furst noted that among other factors, PTSD can involve concentration and memory difficulties.

42    Dr Furst said that the respondent had reported that he found it hard to concentrate and forgot things, and that the respondent appeared to be experiencing high levels of anxiety, most likely a product of his underlying PTSD at the time of his questioning in the Commission on 3 February 2014. Dr Furst gave that opinion without the benefit of having seen the DVD of that examination. After he saw it, he qualified his earlier opinion when giving evidence before me, as I will explain later in these reasons.

43    In his report, Dr Furst opined that the respondent probably understood the questions put to him, as reported to Dr Furst, and noted that the respondent stated that he had been answering truthfully. Dr Furst observed that the respondent’s memory of other autobiographical details in his life was largely intact. He said that the respondent appeared to be suffering from PTSD and might find the Commission environment and questioning challenging. He opined that the respondent’s memory and capacity to recall past events may have been affected, as people often find it hard to concentrate and remember things when stressed, especially in a setting that reminds them of past traumas. He opined that clarification of any objective memory impairment or other cognitive difficulties would generally require detailed neuropsychological testing.

Dr Gordon’s report

44    On 8 January 2015, Associate Professor, Dr Amanda Gordon provided a report of her examination of the respondent. She is a clinical psychologist with experience of treating victims of trauma, including torture. She had read Dr Furst’s report. She also concluded that, from a psychological assessment point of view, the respondent’s reported condition was consistent with the diagnosis of PTSD. She applied a number of psychological assessment tests, including the Depression Anxiety Stress Scale (DASS), in which the respondent scored “extremely severe” for each of the three conditions. She also applied an Outcome Questionnaire 30.2 in which he scored 103, and that indicated a high degree of disturbance and she opined that individuals in that range tended to be in considerable emotional pain. She noted, however, that the respondent’s score was substantially higher than the mixed outpatient sample and the community sample. Professor Gordon also applied a PTSD checklist civilian version for DSM-IV, finding that the respondent scored a total of 83 where the recommended cut-off score was 50, and that this was indicative of a probable diagnosis of PTSD. She attempted to apply the Wechsler Memory Scale (4th ed) test to measure memory function but she concluded that the scores obtained by the respondent were so low as to be invalid. She said that during assessment he became increasingly distressed at his own failure, and that this added emotionality eventually led to termination of testing.

45    She noted that although he had reported to Dr Furst that he did not drink alcohol, in his examination with her, the respondent reported that he binge drank twice a week, usually alone. He told her that he no longer took an anti-depressant medication; that his ex-fiancé, had been his girlfriend since they were very young and that he had taken that relationship very seriously.

46    Professor Gordon concluded that the results from the validated psychological assessment tools, namely the DASS, Outcome Questionnaire and PTSD checklist, indicated a diagnosis of PTSD was extremely likely, and that that would account for the respondent’s low mood, his paranoia, social withdrawal and the need for his recent resort to alcohol to try to self-medicate. She said that the memory assessment results were not meaningful, as the respondent became very distressed on testing and appeared to give up on examination. His report of memory deficit in his daily life was consistent with the diagnosis of PTSD and there was no reason to attribute that to organic causes. She said that symptoms of anxiety, hyper-vigilance, and loss of recall and avoidance were all evident in the transcript of the respondent’s examination, that she had seen. However, like Dr Furst, in her oral evidence before me, she revised her view of what the transcript revealed after she had seen the respondent give evidence in the DVD of the examination of 3 February 2014 and some of the CCTV footage at the airport when he went for the walk with YAAY.

Dr Collins’ report

47    The respondent was also examined by Dr Emma Collins who gave evidence by telephone because she was on leave. She did not have the opportunity of seeing any of the DVD or CCTV footage, unlike Dr Furst and Professor Gordon. She noted that the respondent had failed to attend on the first appointment, but did attend afterwards and was examined on two occasions for a total of about four hours by herself and her assistant. She formed the view that the respondent became distressed when discussing the traumatic incident of his detention in the Middle Eastern country to which I have referred. She said that at that point his affect became quite blunted, he struggled to talk, could not articulate his experiences in any detail, was observed to be visibly shaking, and exhibited difficulty breathing. She said that those symptoms were consistent with a diagnosis of a reaction reflecting his having PTSD.

48    Dr Collins conducted four psychometric tests: the Wechsler Adult Intelligence Scale; Wechsler Memory Scale (4th ed); Test of Memory Malingering, or TOMM, and Miller Forensic Assessment of Symptoms Test, or M-FAST. She concluded that the first test indicated that his intelligence fell within the borderline to below average ability range, and that she estimated his premorbid functioning range, according to his educational history, was likely to fall in the below average to average range. She said that the memory test was used to assess both verbal (auditory) and visual memory, and that all of the respondent’s scores fell within the extremely low range, performing below the bottom 1% of the normative sample on all indices. She said that he retained very little across the delayed memory tests and that:

“These results are lower than what would be anticipated by his IQ scores, suggesting retention problems.”

49    In relation to his attention she said that his overall results highlighted significant inattention problems. She administered two brief tests to evaluate the effort which the respondent was making, namely, the TOMM test and the M-FAST test. She said that a score of under 45 on any trial, of the three components comprising the TOMM test, was suggestive of poor effort and continued:

Additionally, the … (M-FAST) was administered to Mr. ZZ. The M-FAST is a 25-item structured interview designed to assess the reliability of the examinee’s reporting of psychiatric symptoms. Responses are compared to non-clinical and clinical samples, to establish the likelihood of whether an individual is feigning mental illness, for secondary gain. In general, scores of six and over are suggestive of feigned psychopathology. On this scale, Mr. ZZ achieved a score of six. However, his responses were consistent with his self-report of pervasive trauma, and do not in this case reflect exaggeration. It is more likely that the higher score highlights the current high level of distress that Mr. ZZ is experiencing, suggesting both a ‘cry for help’ and confirming the presence of a major mental disorder. (emphasis added)

50    Dr Collins opined that the respondent’s current testing highlighted low IQ falling in the very bottom end of his estimated ability range. She opined that he was struggling with sustaining attention, and that this “impacted his very low memory scores, both in short-term and long-term memory”. She said that the TOMM test also highlighted the limited effort the respondent had invested in testing, and that that poor effort appeared consistent with his assessed daily functioning, based on his self-reporting. She observed that that functioning was limited and affected by his experience of trauma.

51    She concluded that he impressed her as an emotionally fragile young man, and his low scores across testing highlighted the interference of his trauma upon his day-to-day functioning.

Dr Allnutt’s report

52    The examiner made arrangements for the respondent to be interviewed by Dr Stephen Allnutt, a senior consultant forensic psychiatrist. However, the respondent did not attend at any of the appointments with Dr Allnutt. I draw no inference against the respondent by reason of that failure because the onus of proof remained, at all times, on the examiner. Dr Allnutt acknowledged that the opinions he expressed were, accordingly, impaired by the fact that he had not been able to interview or explore with the respondent aspects of his condition or reporting.

53    However, Dr Allnutt viewed all three DVDs of the examination hearings on 3 February, 7 March and 15 April 2014. He was the only expert to have viewed all three, although, as I have said, Dr Furst and Prof Gordon viewed some or all of the relevant CCTV and DVD footage from 3 February 2014. Dr Allnutt accepted that the diagnosis of post-traumatic stress syndrome was one which was available to be made based on the report by the respondent of his experiences when detained in the Middle Eastern country.

54    Dr Allnutt observed that, when giving evidence as shown in the DVDs of the three examination hearings, the respondent demonstrated capacity for autobiographical memory. In Dr Allnutt’s opinion, the respondent’s poor recall in the witness box appeared to be selective because, for example the respondent was able to provide autobiographical detail about other areas of his life to clinicians and in the witness box, and it was unlikely that he would have been able to do this but yet have difficulty recognising a face or a voice in the absence of cognitive treatment. Professor Gordon, in her oral evidence, agreed with that assessment, having seen the DVD.

55    Dr Allnutt also opined that the characteristic type of memory disturbance forming part of a diagnosis of PTSD is “avoiding distressing memories, thoughts or feelings about or closely associated with traumatic events”, as taken from DSM-V. He said that the event that the respondent was being asked to recall as a witness was about a gathering that he had attended at Sydney airport, and that he, Dr Allnutt, would not regard that meeting as closely associated with the trauma of having been tortured. Professor Gordon also agreed with that assessment.

56    Dr Allnutt said (and Prof Gordon also agreed) that:

In the witness box in the ACC he presented as having variable affect but overall mostly composed and serious in his manner (this could be seen as flat or restricted). He was able to communicate in a clear and coherent manner. There was no evidence of tremor, or hyperventilation (symptoms that might be evident if a person was having high levels of anxiety). He manifested logical thought processes. There was no evidence that he was responding to non-apparent stimuli (thus no overt evidence of hallucinations) and this thought content did not demonstrate delusions. While some of his responses could be construed as “paranoid”, this would be in the sense that he appeared to be untrusting of the process, but not psychotic. His responses to the questions did not reflect a detachment from his situation or a serious departure from the reality of the situation. He did not manifest clinically significant inattentiveness. He demonstrated capacity for autobiographical memory. I did not believe his demeanour, demonstrated excessive anxiety.

He was able to seek clarification, resist suggestion and vigorously defend his position. I would not have regarded his behaviour on DVD as consistent with the behaviour of a vulnerable witness. (emphasis added)

57    Dr Allnutt opined that there was no evidence on the DVDs to conclude that the respondent was experiencing such levels of anxiety that he did not know what was going on in the environment or that he misconstrued the environment as being that of a situation of his interrogation and torture in a foreign country, and that there was no evidence of loss of control other than being argumentative at times and he would have maintained capacity in that regard. Professor Gordon also agreed with that assessment in her evidence.

58    Dr Allnutt opined that the DVDs of the respondent’s evidence were not consistent with him remembering nothing and shutting down.

59    I accept Prof Gordon’s and Dr Allnutt’s evidence that the interaction between YAAY and the respondent depicted on the CCTV footage showed an engagement sufficient to enable the respondent to lay down a memory of the meeting between him and YAAY on 29 September 2013. In particular, the two experts considered that there was nothing in the footage to suggest that the respondent was other than actively involved in the process of that interaction or that he was experiencing any incident suggestive of his undergoing an episode where he was affected by PTSD or anxiety so that he was not able to lay down a memory. As Prof Gordon said:

If they were engaged with the process of being with the person, being involved with the person, if they were actively engaged with it, then that’s the process that’s needed to lay down memories … Whereas, if they were just there and not involved, not engaged, not interacting, then they may not lay down memories. So, in other words, if the traumatic events are distracting them from being in the moment they may not lay down memories in the moment. (emphasis added)

60    Her assessment of the respondent’s ability to identify YAAY, after viewing material parts of the CCTV footage at the airport and the DVD of the respondent’s responses to questions in the 3 February 2014 examination about identifying YAAY in the photographs, was:

But I would have expected some sense of familiarity – you know, ‘I’ve seen him before,’ something – at least, that much. There would have been that much laid down if he knew him already and was having that conversation, because he knew him, he wouldn’t have forgotten between those months. (emphasis added)

61    It was common ground between Prof Gordon, Dr Furst and Dr Allnutt that, on viewing the DVD of the examination of the respondent on 3 February 2014, there was no evident sign of a panic attack, hyperventilation or other physical manifestation to suggest that the respondent was then affected by a flashback or some distraction in his mind, causing him to become disengaged or unable to focus on or understand any questions, or experiencing any events such as would affect his capacity to answer any of the questions.

62    While none of the experts could rule out such a possible impediment as having affected the respondent during the course of the examination, as depicted on the DVD on 3 February 2014, none saw anything in that DVD to indicate that he was undergoing or experiencing any event associated with PTSD such as would impair or affect his memory. Dr Furst gave evidence that the respondent looked anxious during that examination. He said:

You would expect to see some change in affect or ... demeanour or presentation of the person if he or she was experiencing a PTSD set of symptoms that could or would affect his or her capacity to remember and give evidence? --- You – look, it probably would. I would say you probably would expect to see some manifestation of that. In this particular case with ZZ, he did look anxious, but he was – from my recollection of the video I saw and looking thorough the transcript he was reasonably logical throughout the session, like, when asked questions the answers seem to follow on from the questions asked, so – but – as far as I can tell.

…

When you said “he looked anxious”, did you form any view as to that presentation being connected to either the diagnosis that you have expressed in your report of PTSD affecting him as a opposed to what you might ordinarily expect a person who was in the position of ZZ who was asked to go in and take a – be giving evidence in the Crime Commission in circumstances of being a secret hearing with an examiner where they’re compelled to answer questions? --- Well, look, I think the limitation, in terms of my role as a psychiatrist, with limitation on what I can glean from the images, if you like. He looked – his body posture looks a little tense or somewhat tense, and he had his hands clasped, and he – he didn’t show signs of marked distress or thought disorder or psychosis or anything extreme so I never formed the view that he was dissociating or otherwise disorientated of that nature. The style of questioning in the interview was noticeably abrupt, I would say, to the point that he was interrupted a number of times. He was also warned a number of times about the consequences of being in contempt which you would be aware of from the transcripts and video and that would probably unsettle most people, I would imagine. So I – I would probably say that there’s a mixture of – of his underlying pre-existing anxiety and post-traumatic stress disorder, if one assumes he has that condition and the – the slightly or somewhat interrogatory nature of the context he found himself in, both of which probably made him anxious at that time. And I – I don’t think I can really advance it much beyond that in terms of – I can’t read his mind … (emphasis added)

63    Dr Furst also said this (T 152):

… if he’s reporting confusion and distress, I would expect him to be behaving as such behaviourally, perhaps observing signs of distress if he were quite contained and appearing to be able to – “sanitise” was the wrong word – but give an account and integrate the information, you know, in a largely coherent way. I would see those as being quite inconsistent.

HIS HONOUR: Inconsistent with his being affected by PTSD or other memory-affecting trauma while he was giving his evidence; is that what you mean? --- Yes. Both. If he’s reporting confusion and not behaving as such that could have implications for both of those: his evidence at the time and could impact on his reported trauma – previous trauma.

And would that tie in with the results in the TOMM and M-FAST test that you have explained based on your observations of him and the history you took if the account of his evidence, when viewed on DVD, were that he was giving his evidence interactively and without any apparent blunting or trauma? Are you able to tell me how you would – if anything, that would affect your view? ---Yes, that – it potentially would. As I mentioned, there are two possible – well, two possibilities here. One being around motivational issues and one being psychological and seeing something would be appear to be inconsistent would lead potentially to questions about motivation. (emphasis added)

64    Dr Allnutt explained in his report that Dr Furst had not, in his consultation, explored in any detail with the respondent, what was going on in the respondent’s mind during the 3 February 2014 examination. Dr Allnut gave this evidence in cross-examination:

Mr Scragg:

It’s not as if he just said it once and it was left. He repeated it time and time again. What I’m suggesting to you is that is consistent with or might be consistent with ZZ experiencing high levels of anxiety throughout his examination on 3 February. --- So I would agree he would feel anxious and I think one has got to make a distinction between anxiety given the circumstances that one finds oneself in as compared with anxiety that’s so severe that it’s pathological and impairing a person’s cognitive abilities. And I’m not arguing that he’s not anxious; I accept, in all likelihood, most of us would be, under those circumstances. I certainly would.

Yes --- but the question is whether that anxiety was so significant that it impaired his cognitive ability. (emphasis added)

And Dr Allnutt considered that it did not.

Consideration – the respondent’s mental state on 3 February 2014

65    Having seen the DVDs of the examinations myself and closely observed the respondent giving evidence on those occasions, I am satisfied beyond reasonable doubt that the respondent showed no sign of any distress indicative of his not being focused on responding attentively to the questions. He was anxious and became subdued, and after the examiner threatened him with contempt, towards the end of the examination on 3 February 2014, he became distressed and appeared to have been briefly in tears, at a late point in that DVD well after the questions and answers the subject of counts 1, 2 and 3. However, after that, during the course of further questioning, he appeared to be in control of his emotions at all times and was engaged in the process with the examiner and counsel assisting.

66    I note that the respondent told the examiner that he took prescription anxiety medication called Xanax without a prescription to help him sleep, but there was no evidence that that medication was operating at all or so as to affect his cognitive abilities to respond during the course of the examinations.

67    I find, as Dr Furst said, that the respondent on 3 February 2014:

was quite quick to answer and he was logical. As I said, the responses – he made eye contact with the examiners continuously when answering questions, as far as I could tell. Even though they were out of the picture he looked to be engaging with them and answering quite quickly and without any signs of being distressed – more distressed or disengaged from the interview process for any significant length of time, as best I could tell, again, bearing in mind I haven’t seen the whole video.

68    Having seen the whole DVD, I am satisfied beyond reasonable doubt that at no time during the examination on 3 February 2014 was the respondent in a condition where he was not consciously engaged in the process of attending to and answering the questions. I am satisfied beyond reasonable doubt that he was conscious of giving the answers that he gave and was not operating under any distraction of mind caused by his PTSD or anxiety.

The 7 March 2014 examination

69    On 7 March 2014, the respondent attended the examination with Mr Butterfield. Mr Butterfield noted that Dr Furst’s report had already been provided to the examiner. Mr Butterfield said that he had read the transcripts of 3 and 12 February 2014 that morning and had also listened to the audio recording of the examinations. He accepted that counsel assisting had brought to his attention transcript pages 73-90 and 100-108 of the examination of 3 February 2014, during which most, but not all, of the questions the subject of counts of contempt 1, 2 and 3 were asked and answered.

70    The examiner asked whether Mr Butterfield had raised the examiner’s matters of concern that had been recorded in the transcripts of the two earlier hearings with the respondent. Mr Butterfield said he had and that the respondent did not wish to change his evidence.

71    At the 7 March 2014 hearing, as I have mentioned, the respondent was asked whether he wished to change his evidence. He said that he did not. He confirmed to the examiner that the evidence he had given thus far in the examination had been truthful. He was then shown exhibit 4, asked, who, if anyone, in the photograph he recognised and said: “No one.” He was asked whether he recognised the man in the white on the right and said that he did not. As he appeared on the DVD of that examination, he looked uncomfortable but nonetheless still appeared to be fully engaged with both the examiner and counsel assisting and to be responsive to their questions.

72    Next, the respondent was shown exhibit 5, and asked whether he could tell if there was anyone in that photograph whom he recognised. He responded, only himself, pointing himself out. He was asked: “And, in particular, do you recognise the man standing at the counter with the white hat?” He answered: “No.” I am satisfied beyond reasonable doubt that that answer was false to the respondent’s knowledge.

73    The respondent was then shown exhibit 6 and asked whether he recognised the man in that photograph. He answered: “No.” He was asked whether he had ever seen that man before. He said not that he could recall. And was asked: “And, obviously, you don’t know his name?” He answered: “No.” I am satisfied beyond reasonable doubt that those answers were false to the respondent’s knowledge.

Consideration

74    The examiner’s case, leaving aside the effect of his certification of that fact, for establishing that the respondent knew YAAY is partly circumstantial. As Gummow, Hayne, and Crennan JJ said in The Queen v Hillier (2007) 228 CLR 618 at 638-639 [48], in a circumstantial case there will be evidence of matters which, when looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. They continued:

But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal. As Gibbs CJ and Mason J said in Chamberlain [No. 2] [(1984) 153 CLR 521 at 535]:

At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness ‘separately in, so to speak, a hermetically sealed compartment’; they should consider the accumulation of the evidence: cf Weeder v The Queen [(1980) 71 Cr App Rep 228 at 231].

Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider ‘the weight which is to be given to the united force of all the circumstances put together’: per Lord Cairns, in Belhaven and Stenton Peerage [(1875) 1 App Cas 278 at 279], cited in R v Van Beelen [(1973) 4 SASR 353 at 373]; and see Thomas v The Queen [(1972] NZLR 34 at 37-38, 40] and cases there cited.

And as Dixon CJ said in Plomp [(1963) 110 CLR 234 at 242]:

All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done. (emphasis in original)

75    In this case, there is a concatenation of circumstances that satisfies me beyond reasonable doubt that the respondent knew YAAY prior to the meeting at Sydney Airport. YAAY’s SMS messages were on the respondent’s phone that he had with him at the hearing on 3 February 2014, from which the download was taken. There is a continuity in the SMS texts. Some refer to what were obviously attempted communications by the respondent with YAAY through some other means: the text on 20 August 2013 explaining that YAAY was praying was obviously in response to a communication from the respondent. I accept that there are no SMS texts from the respondent’s phone to YAAY or other evidence of telephone contact between the two men. I do not know whether that lack of SMS or phone calls to YAAY’s “very private number” from the respondent’s is to do with the fact that, as the respondent said to the examiner, he had changed mobile phone providers in the previous week and also changed his number. The respondent gave evidence to the examiner that he used other phones and produced a Nokia phone to the examiner on the hearing of 7 March 2014. That was a different phone than the earlier one he had used.

76    At the airport, as shown on the CCTV footage, the respondent clearly demonstrated familiarity and prior association with YAAY. His conduct did not suggest that they were meeting in a casual way for the first time as persons whom, on the respondent’s account, had coincidentally met just because YAAY happened to be one of the pilgrims going to the Hajj in Mecca. The only inference that I can draw, and do draw, from YAAY’s SMS messages, the confidentiality of his private number, and the fact that YAAY was obviously under surveillance by an Australian police force, intelligence agency or the Commission, was that he gave his “very private number” to the respondent in July 2013 in order to enable the two of them to communicate on a confidential basis. It would be beyond credulity for the airport meeting to have been the first encounter between YAAY and the respondent and for YAAY’s earlier texts to have accidentally sent to a complete stranger on six occasions: Hillier 228 CLR at 638-639 [48].

77    On all of the evidence, I am satisfied beyond reasonable doubt that the respondent knew and was familiar with YAAY well before they encountered one another at the airport on 29 September 2013.

Conclusion

78    Counts 1 and 5: I consider that counts 1 and 5 must be dismissed. I am not satisfied that any of the respondent’s answers complained of in that count were false, and, moreover, I am not satisfied that they were false to his knowledge. The photo in exhibit 4 is of such poor quality that the respondent’s failure to recognise YAAY in it was consistent with an honest response and, indeed, with an honest inability to be certain that the person whose blurry image was depicted in the photograph was someone he knew. His answers were consistent with an honest response, given the seriousness of the examination and the use of the photograph in the form in which it was presented to the respondent. The image of the man in white was not of such a quality that I could conclude that the respondent was deliberately lying, being evasive or giving false evidence when he stated that he did not recognise, or accept that the photograph depicted, someone whom he knew.

79    It follows that both counts 1 and 5 must be dismissed and the respondent be found not guilty on those counts.

80    Counts 2 and 6: I am satisfied beyond reasonable doubt that the answers that the respondent gave to the examiner on 3 February 2014 that he did not recognise any of the people in exhibit 5 was false, and false to the respondent’s knowledge at the time he gave that answer, so far as that answer concerned YAAY. I am satisfied beyond reasonable doubt that the respondent knew perfectly well who YAAY was at the time he was being asked those questions and that YAAY was the man depicted in white in that photograph. It follows that the respondent must be convicted on count 2.

81    Likewise, repetition of that assertion on 7 March 2014 when again shown exhibit 5, by saying that he recognised only himself in the photograph, was false and false to the respondent’s knowledge when he gave the answer. I am fortified in that conclusion because the answers given on 7 March 2014 were given in the context of the examiner having adjourned his hearings on 3 and 12 February 2014 to give the respondent the opportunity to reconsider his evidence, and that he was able to do so with the assistance of counsel. There was a long period of time over which the respondent was able to reflect and consider at leisure, unaffected by PTSD, or other anxiety concerns, his position in relation to his answers to the previous questions.

82    Counts 3 and 7: Likewise, I am satisfied beyond reasonable doubt that when the respondent was shown exhibit 6 on 3 February 2014 and asked, “Who is that?”, his answer that he did not know was false to his knowledge when he gave it. For the reasons I have explained, he knew perfectly well who the person depicted in that photograph was, and that it was YAAY. It was false for him to continue to say that he did not recognise YAAY, had not met him, did not know his name, and had never met him. Each of those answers was false. I am satisfied beyond reasonable doubt that the respondent is guilty on count 3.

83    For the same reasons, I am also satisfied that, when he gave evidence on 7 March 2014 that he did not recognise the man in exhibit 6, had never seen him before, could not recall seeing him before and did not know his name, each of those answers was false and false to the respondent’s knowledge. It follows that the respondent must be convicted on count 7.

84    For these reasons, I find the respondent not guilty on counts 1 and 5, and guilty on counts 2, 3, 6 and 7. I will stand the proceedings over for sentence on 8 May 2015.

Associate:

Dated:    6 May 2015