IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE	Redacted
Suitable for publication	
Criminal Division
S ECR 2022 0076 & S ECR 2022 0077

Between:		
		
THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
ARAN SHERANI	Accused	
		
and		
		
ARI SHERANI	Accused	

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JUDGE:	Fox J	
WHERE HELD:	Melbourne	
DATES OF HEARING:	12, 13 & 14 December 2022, 3 & 10 March 2023	
DATE OF RULING:	14 July 2023	
CASE MAY BE CITED AS:	DPP (Cth) v Sherani & Sherani (Ruling No 1)	
MEDIUM NEUTRAL CITATION:	[2023] VSC 407	

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CRIMINAL LAW — Evidence — Application to exclude evidence pursuant to s 138 of the Evidence Act 2008 — First-named accused arrested without warrant pursuant to s 459 of the Crimes Act 1958 for alleged threat to cause serious injury — Whether arrest lawful — Belief on reasonable grounds — Purpose of arrest — Seizure of mobile telephone pursuant to common law ‘safety and evidence’ search — Arrest not made for a lawful purpose — Balancing exercise required by s 138(3) of the Evidence Act 2008 — Evidence admissible — Evidence Act 2008 s 138 — Crimes Act 1958 ss 20, 21, 458, 459 & 464A — George v Rockett (1990) 170 CLR 104 — New South Wales v Robinson (2019) 266 CLR 619 — Kadir v The Queen (2020) 267 CLR 109 — Prior v Mole (2017) 261 CLR 265 — Reeves (a Pseudonym) v The Queen [2017] VSCA 291 — Slater (a Pseudonym) v The Queen [2019] VSCA 213.

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APPEARANCES:
	Counsel	Solicitors	
For the Commonwealth Director of Public Prosecutions	Mr J Hannebery KC, with 
Mr M Keks	Commonwealth Director of Public Prosecutions	
			
For Aran Sherani	Mr P Doyle SC, with 
Ms A Sharpley	Robinson Gill Lawyers	
			
For Ari Sherani 	Mr C Mandy SC, with 
Mr L Richter	Slades & Parsons Criminal Law	

HER HONOUR:
Overview
1	Aran Sherani is charged with four terrorism offences.  His brother, Ari Sherani, is charged with a single offence by way of joint commission with Aran.  Crucial to the prosecution case is evidence located on the following electronic devices: an iPhone XR seized from Aran’s person when he was arrested on 10 March 2021, and an iPhone X, an Apple laptop and an iPhone 7 seized on 17 March 2021 when both accused were arrested and their home searched. 
2	Aran applies under s 138 of the Evidence Act 2008 (Vic) (‘the Act’) for the exclusion of that evidence.  In brief compass, he argues that his arrest on 10 March was unlawful and the iPhone XR was seized as an incident of his arrest.  The balance of the evidence it is sought to have excluded was obtained as a result of information that came into the possession of police by means of analysis of the iPhone XR.  Accordingly, the evidence was obtained in consequence of a contravention of an Australian law, namely the unlawful arrest.  The application is joined by Ari.  
3	The prosecution opposes the application.  It argues, first, that Aran has failed to establish that his arrest on 10 March was unlawful, and, second, that even if his arrest was unlawful, the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.  
The alleged offending
4	An indictment filed on 3 June 2022 charges Aran with four offences against Part 5.3 of the Criminal Code Act 1995 (Cth).  Briefly stated, the prosecution case, outlined in the summary of prosecution opening filed on 14 June 2022, is as follows. 
5	The accused’s online activity in December 2020 and January 2021 reveals an interest in Islamic extremism.  During those two months, they accessed and saved Islamic State (‘IS’) propaganda material and discussed Islamist ideology with each other and with fellow users of the encrypted mobile phone application Telegram.  Ari conducted web searches using search queries related to jihad and historical terror attacks, and accessed lectures by clerics such as Anwar al‑Awlaki.  The brothers discussed ‘making hijrah’ and how it might be funded.  Among the material accessed was an IS propaganda video urging that those who cannot make hijrah should instead attempt terror attacks at home.  Online activity of the same tenor continued throughout February and into March 2021, during which period the bulk of the charged conduct took place.
6	With the exception of a small amount of evidentiary material located on an Acer laptop used by Aran, evidence of the accused’s online activity derives from Aran’s iPhone XR and the devices seized on 17 March.  
Charge One
7	Charge One alleges that Aran was intentionally a member of a terrorist organisation, namely IS, between 23 December 2020 and 17 March 2021.
8	The summary of prosecution opening does little by way of explaining on what basis the prosecution says Aran was a member of IS between those dates.  I note the defence have requested further particulars of this charge.  It may be assumed the alleged facts going to the remaining charges are relevant to Charge One, as is evidence of Aran’s online activity.  For example, the summary details that on 18 February, Aran saved a Telegram post containing a pledge of allegiance to IS on his mobile phone.  On 23 February he sent a message to a Telegram user in which he claimed to be a member of IS.  
Charge Two
9	Charge Two alleges an attempt by the brothers to engage in a terrorist act.
10	On the afternoon of 18 February, a fire at Humevale burned an area of approximately 40 by 15 metres before emergency services succeeded in quelling it.  The fire was deemed suspicious.  
11	On 15 February, Aran had disclosed to a Telegram user, Qasim Khurasani, that he was ‘preparing for the bush fire [sic]’.  The same day, he had a conversation with another Telegram user, ‘Anas ibn Malik’, about pledging allegiance to IS and recording it on video.  
12	On the evening of 18 February, Aran sent Ari an SMS which read, ‘Ari, video is finished’, to which Ari responded via Telegram with ‘broooo’, accompanied by a zipper‑mouthed emoji.  In the early hours of 19 February, Aran sent a message to Qasim Khurasani.  That message contained a video, apparently filmed on a hand‑held device held by another, depicting a male using fire starters to start a bushfire while purporting to make a proclamation on behalf of IS.  The video is accompanied by a soundtrack consisting of a cappella chant, or nasheed, entitled ‘Answer the call’, which was released by IS’s media wing in 2018.  Its lyrics might fairly be described as an incitement to violence in the name of IS.  On 23 February, Aran sent a message to a Telegram user stating that he had ‘been trying to harm the kuffar here in Australia’.  
13	The prosecution alleges that the male pictured in the video lighting the fire is Aran, and that Ari recorded the video. 
14	The bulk of the evidence it is intended to adduce in proof of Charge Two derives from the accused’s mobile phones.  That evidence includes:
(a)	the video and correspondence referred to above; 
(b)	location data recorded by the brothers’ phones which places them en route to and at the scene of the fire; 
(c)	SMS messages between the brothers and between Ari and his girlfriend, Mariebelle Duncan, from which their locations at various times on 18 February can be inferred; 
(d)	evidence Ari switched his phone into flight mode around the time the prosecution say the fire was lit; 
(e)	data from the Apple Health app on Aran’s phone tracking steps taken and changes in elevation consistent with a person negotiating the terrain at the scene of the fire; and
(f)	evidence Ari searched the internet with queries such as ‘[W]hittlesea bushfire’ and repeatedly accessed the Vic Emergency Incidents and Warnings webpage. 
15	The evidence does not derive solely from the brothers’ phones.  For example, the prosecution relies on: 
(a)	transaction records from APCO Service Station and National Australia Bank documenting the purchase by Ari of petrol on the afternoon of 18 February that the prosecution alleges was stored in a jerry can and used as an accelerant; 
(b)	CCTV footage showing a vehicle alleged to be a grey Mitsubishi Outlander to which the accused had access travelling to and from the location of the fire; and
(c)	evidence tending to prove that the DNA of both accused was present on a jerry can the prosecution say was used to transport the petrol to the fire scene.  
Charge Three
16	Charge Three alleges an attempt by Aran to engage in a terrorist act.
17	The day after the Humevale bushfire, Qasim Khurasani sent Aran a message on Telegram praising the video and adding, ‘Just creat[e] a huge fire in their best places … And give me an update then’.  Aran responded with ‘InshAllah brother … It’s in progress’.  On 28 February, emergency services doused a second suspicious fire at Kinglake West.  Charge Three alleges that Aran, acting alone, lit the fire in an attempt to engage in a terrorist act.  
18	Much of the evidence sought to be adduced in support of Charge Three derives from Aran’s telephone data.  There is location data from which his movements on the afternoon in question can be inferred, and Apple Health data consistent with his having walked from the nearest point of vehicular access to the scene of the fire and back.  There is also evidence flight mode was activated on his phone, albeit this appears to have been done only after the fire was lit. 
19	As with Charge Two, telephone data is not the only means of proof of the offence.  Among other things, the prosecution relies upon a combination of CCTV footage from service stations on the road to Kinglake West, and bank transaction records, to show Aran inspecting a display of jerry cans and making purchases of petrol and a lighter.  A car the prosecution claims is the Mitsubishi Outlander is also captured on CCTV travelling to and from the location of the fire.  The prosecution also relies on DNA evidence located on the jerry can to which reference was made earlier, which was discovered at the scene of the fire.  
Charge Four
20	Early on the morning of 17 March, members of the Australian Federal Police (‘AFP’) attended at 8 Moira Way, Epping (‘8 Moira Way’), where the accused resided [REDACTED], to execute a search warrant.  Aran decamped via the rear of the premises immediately upon police arrival.  He was apprehended fewer than two hours later, but not without managing, in the course of his flight, to purchase a knife from a Coles supermarket and to record, on the iPhone 7, a series of videos of himself brandishing the knife while pledging allegiance to IS and expressing a desire to engage in violent jihad, one of which he uploaded to Instagram.  He also sent voice recordings to Ari and a female friend of his in which he seemed to contemplate his imminent death.  Aran was not in possession of the knife when he was apprehended, and police failed to locate it during a search of the site at which he was arrested.  
21	Aran’s purchase of the knife and/or his self‑recorded videos form the subject of Charge Four.  The prosecution alleges that those acts were done in preparation for, or planning, a terrorist act.  
22	In essence, the material relied upon in support of Charge Four consists of the videos and voice recordings created by Aran in the course of his flight, which were located on his phone, and of CCTV footage and a duplicate receipt generated by Coles evidencing his purchase of the knife.  The prosecution says that references to martyrdom in his electronic communications indicate Aran was ‘prepared to die as a martyr in the pursuit of jihad’.  
The police investigation
Background
23	The accused came to the attention of police when, on 26 May 2020, Ari called the National Security Hotline (‘NSH’) and expressed concern that his brother had been exhibiting radicalised behaviour, including by expressing extremist Islamic views.  Ari’s report was referred to the Security Investigation Unit (‘SIU’) of Victoria Police’s Counter Terrorism Command (‘CTC’).  At some point prior to 21 January 2021, the SIU commenced an investigation into Aran, codenamed ‘Operation Lightsout’.  Enquiries made by the SIU led to an engagement by SIU detectives with [REDACTED] FT and MC [REDACTED] on 20 January 2021.  [REDACTED].  
24	The [REDACTED] interactions with police resulted in the generation of a series of information reports (‘IRs’), some of which assumed importance in the context of the present application.  
25	It is not necessary for present purposes to detail the entire history of the SIU’s investigation into the accused brothers.  However, three aspects should be noted.  
26	The first concerns the events of 5 February 2021.  Investigators had been trying to arrange a meeting with Ari in early February in order to discuss his NSH report.  On 5 February, FT told investigators that, when Ari disclosed [REDACTED] that he intended to meet with police for that purpose, Aran had become angry and asked FT to buy him a plane ticket so he could go overseas.  FT said that, when Aran was told that would not happen, he replied, ‘If I can’t travel I will do jihad here’.  [REDACTED].  
27	In the course of a conversation which included [REDACTED], Detective Senior Sergeant L’Estrange (‘L’Estrange’) and Detective Sergeant Biram (‘Biram’), FT and MC made clear that Aran’s expression of an intent to commit jihad had not been made that day, but at some earlier time.  They were unable to provide a specific example of Aran making a comment about committing jihad.  They said Aran’s expression of a desire to travel was uttered in the course of him expressing fear that he would be imprisoned for his beliefs upon discovering that police were making enquiries about him.  That conversation was recorded in IRs which assumed importance on the application.  
28	The second aspect of the police investigation concerns Aran’s online activity.  It appears that investigators were aware from 2 February 2021 that Aran was the user of the Telegram account ‘@SalafKurdi’.  From that point on, CTC investigators — presumably posing as like-minded individuals — engaged Aran online and discussed his views with him.  An IR from 2 February notes that Aran had recently changed his display picture to an image of deceased IS fighter Abu Humam Kurdi.  A subsequent IR from 19 February reported that the image had been removed. 
29	[REDACTED].  
The events of 10 March 2021
30	[REDACTED].  At 3:52pm on 10 March 2021, MM contacted Cruse and stated that he had received a phone call from FT, who had told him that Aran wanted to travel overseas and Aran had said that if he was not allowed to he would ‘start stabbing people’.  FT had further told him that Aran had purchased a large knife two or three days previously, and that he had also bought a knuckleduster.  
31	Almost immediately thereafter, Cruse briefed Detective Acting Senior Sergeant Robinson (‘Robinson’) of the SIU in relation to the information he had received.  A further briefing involving Robinson and two other officers was held at 4:25pm.  At 4:55pm, Cruse briefed Detective Acting Senior Sergeant Vincent (‘Vincent’) of the SIU.  At 5:00pm, Cruse submitted an IR detailing his conversation with MM (‘the Cruse IR’), which Vincent subsequently read. 
32	At or shortly before 5:00pm, Vincent briefed Detective Senior Constable Tuica (‘Tuica’), Senior Constable Nibloe (‘Nibloe’) and Senior Constable Seymour (‘Seymour’) and assigned them various tasks.  Tuica was tasked with preparing an affidavit in support of applications for warrants under s 465 of the Crimes Act 1958 (Vic) (‘Crimes Act’) and s 11 of the Control of Weapons Act 1990 (Vic) (‘Control of Weapons Act’) in respect of the premises at 8 Moira Way and a 2005 Mazda 6 silver sedan (‘Mazda’)  used by Aran.  Nibloe was asked to conduct ‘background’ on Aran and Ari.  Seymour prepared an ‘operation order’ (a slideshow) for use in briefing the police members it was contemplated would later assist in executing the warrants once issued.  
33	Tuica learned she would be the informant in relation to the offence of threat to inflict serious injury when she was tasked with preparing the affidavit in support of the warrant.  Once prepared, the affidavit was sworn by Robinson before Vincent at 8:10pm.  In the affidavit, Robinson set out that MM had contacted police on 10 March and relayed FT’s concerns.  FT had disclosed that ‘[Aran] wants to travel overseas and if he is not allowed, he will start stabbing people’.  Robinson deposed that investigators fear that Aran intended to physically harm MM, and ‘also fear that due to the comments made, [Aran] may intent [sic] to stab members of the public and commit an on‑shore act of religiously motivated violence’. 
34	At 6:00pm, Robinson instructed Vincent to have officers sit off 8 Moira Way.  Vincent issued a series of instructions to Detective Senior Constables Hill (‘Hill’) and Edis (‘Edis’) and Detective Leading Senior Constable Matthews (‘Matthews’) over the following 45 minutes, including during a briefing at 6:21pm, at which Detective Sergeant Manno (‘Manno’) was also present.  The content of those instructions was an issue on the present application and will be returned to below.  At 6:45pm, Hill, Edis and Matthews departed Spencer Street for 8 Moira Way.  They arrived there at 7:20pm. 
35	At around 7:40pm, Aran was observed to leave the premises on foot.  The officers at the scene contacted Vincent to seek instructions, and Vincent directed Aran’s arrest, either for a threat to kill or a threat to inflict serious injury.  At the point in time where he gave the direction to arrest, Vincent was in the CTC conference room at Spencer Street with a group of officers, including Cruse and Detective Superintendent Sheehan (‘Sheehan’).  It appears that, shortly after the direction was given, Sheehan requested that the officers hold off on the arrest.  Cruse relayed that instruction to Vincent, but it was too late to stop the arrest.  Aran was apprehended shortly after 7:40pm, and an iPhone XR belonging to him was seized.  Aran was lodged in the custody centre at Spencer Street at 8:23pm.  Tuica and Seymour commenced a record of interview with him at 9:07pm, but it was suspended almost immediately.  Aran remained in police custody until the record of interview was recommenced.  
36	Four search warrants were obtained on the night of 10 March 2021.  The validity of those warrants was not the subject of challenge.  The preparation of the affidavit in support of the search warrants spanned the period during which Aran was arrested.  An unredacted copy of the affidavit was disclosed.  It included that, ‘On Wednesday, 10th March 2021 at approximately 7:44pm SHERANI was arrested by Detective Senior Constable Owen Matthews from Counter Terrorism Command Security Intelligence Unit whilst leaving his residence on foot’.  The affidavit is silent as to the reason for Aran’s arrest.  
37	The warrants were issued at around 10:20pm on 10 March.  Two were issued pursuant to s 465 of the Crimes Act, and two pursuant to s 11 of the Control of Weapons Act.  The Control of Weapons Act search warrants authorised police to search 8 Moira Way for a knuckleduster and knife, for the suspected offence of possess a prohibited weapon without exemption pursuant to the Control of Weapons Act, and authorised police to search the Mazda for the same reasons.  The s 465 warrants authorised the search of 8 Moira Way and the Mazda for ‘knuckle dusters, knives, mobile phones, computers, any electronic devices’ for the suspected offences of ‘possess prohibited weapon without exemption / Control of Weapons Act 199 [sic] Section 5AA / Threats to Inflict Serious Injury / Crimes Act 1958, Section 21’.  
38	A briefing in relation to the execution of the warrants involving Vincent and others was held at 10:05pm.  Officers arrived at 8 Moira Way to execute the warrants at 12:40am and searched the premises and the car.  Among the items seized from the house were a folding knife [REDACTED] and the Acer laptop.  Nothing was seized from the car.  Police departed at around 2:15am.  
39	The record of interview recommenced at 4:14am.  This time, Detective Leading Senior Constable Chirila (‘Chirila’) acted as Tuica’s corroborator.  In the course of questioning, Aran denied having made any threats or purchased a knuckleduster, and explained that the knife he had purchased was for use in fishing, a claim he corroborated by showing police a video of him using it for that purpose.  He also provided police with the passcode to the iPhone XR upon request.  Aran was released without charge shortly after 6:00am.  The phone remained with police.  
40	The following morning at 11:00am, Hill extracted the data from the iPhone XR using the Cellebrite program on Tuica’s direction.  He conducted no analysis of the data, but simply made it available for inspection by others.  Shortly after 3:10pm when the extraction was complete, Hill informed L’Estrange of that fact.  
The Joint Counter-Terrorism Team (‘JCTT’) takes over the investigation 
41	The JCTT were made aware of the accused early in the piece, when on 1 September 2020 Robinson approved the dissemination to them of an IR recording Ari’s NSH report.  They had been informed about the situation developing on 10 March 2021 by 4:15pm that afternoon, and at 9:35pm a contingent of the JCTT members arrived at the SIU at Spencer Street to assist with the execution of the warrants.
42	It is unclear exactly at what point in time the JCTT took over the investigation.  A note in Cruse’s diary from 8:00am on 11 March records that the JCTT were given ‘primacy’ at that point in time.  But it was only on 13 March that the JCTT formally accepted the matter for investigation.  On that day, the JCTT members attended the SIU offices and went through the data on the iPhone XR.  They saw the video of the conduct forming the subject of Charge Two.  On 14 March, the JCTT members attended the SIU with a warrant issued under s 3E of the Crimes Act 1914 (Cth) and seized the phone and a hard drive containing the extracted data, as well as the Acer laptop.  
43	On 17 March, the JCTT executed three further s 3E warrants, one in respect of the premises at 8 Moira Way, and one in respect of the person of each accused.  An Apple laptop and an iPhone X, both used by Ari, were seized from different rooms of the house.  The acts the subject of Charge Four, detailed above, were committed after Aran fled the scene.  The iPhone 7 he had been using since police had taken his iPhone XR was seized upon his being apprehended.  The JCTT investigation led to the laying of the charges outlined above.
44	The SIU ceased to have any active involvement in the investigation once the JCTT took over.  Neither of the draft charges in the brief of evidence Tuica had prepared in her capacity as informant — namely, threat to inflict serious injury and possession of a prohibited weapon, being the folding knife — were persisted with.  Though it was not until 9 June that Tuica submitted the brief for non‑authorisation, it appears this was a forgone conclusion well before then. 
The application to exclude evidence pursuant to s 138
45	The application is made on the basis that Aran’s arrest on 10 March was unlawful, and that the iPhone XR was seized as an incident of that unlawful arrest.  The electronic devices seized on 17 March were seized in consequence of the unlawful seizure of the iPhone XR in the sense that, but for its seizure and analysis, police would not have arrived at 8 Moira Way to execute the s 3E warrants that morning.  
46	Aran’s arrest was said to be unlawful on the basis that Vincent, who directed the arrest, did not genuinely believe that Aran had committed the offence for which he was arrested, and/or did not have reasonable grounds for such a belief.  Additionally, Vincent did not have Aran arrested for the purpose of having him brought before a court to be dealt with for the offence for which he was arrested, but instead in order that police could gather more information about him and investigate the potential commission of Commonwealth offences.  
47	A further discrete basis of unlawfulness was relied upon.  It was submitted that the power to seize property as evidence incident to arrest is limited to property which would constitute material evidence in relation to the crime for which the accused is arrested, and the iPhone XR was never going to evidence a threat Aran had supposedly uttered to FT [REDACTED].
The evidence
48	A significant quantity of evidence was tendered at the hearing, including police statements, police notes, IRs and interpose logs.  Twelve Victoria Police officers were cross‑examined on a voir dire.  It is neither necessary nor possible to refer to all the evidence, however I will briefly summarise the relevant evidence given on the voir dire.  It is convenient to commence with the evidence of Cruse, who briefed Vincent on 10 March and set in motion the chain of events leading to Aran’s arrest and the seizure of his iPhone XR. 
Inspector Cruse
49	Cruse was questioned about the phone call he received from MM at 3:52pm on 10 March, during which MM passed on what FT had told him.  He was referred to his notes of that call.  Cruse testified that the notes were made as the conversation was taking place and constituted the best record of what MM relayed to him.  One of those notes reads: ‘If they don’t let me leave, he is going to start stabbing people’.  It was put to Cruse that the pronoun ‘he’ is a reference to Aran and that the note records FT’s belief about what Aran would do.  Cruse observed that Aran is referred to first in the first person and then in the third person, and said that the note records FT ‘relaying something [Aran] has said to him’.  But he agreed that the note is not a quote attributable to Aran, and that his notes do not get to that level of precision.  
50	Cruse could not remember briefing Vincent at 4:55pm that afternoon.  He accepted, however, that he must have spoken to him.  Cruse said that he knew from his 3:52pm conversation with MM that Aran had said the knife he had bought was for fishing.  He said that, although he could not be sure of exactly what he said to Vincent when he briefed him, he would have included that fact.  
51	Cruse was asked about the request he relayed from Sheehan to Vincent shortly after 7:40pm for Hill, Matthews and Edis to hold off on the arrest.  Cruse stressed that he was not sure why Sheehan made the request, but volunteered two possible explanations.  First, the application for the s 465 warrant was being prepared.  Cruse did not articulate why that fact might have led to a direction to hold off on the arrest.  Second, the request might have related to conversations about whether primacy in the investigation should be given to the SIU or the JCTT.  Cruse agreed that if the JCTT had primacy, priority would be given to investigating potential terrorism offences, but explained the ‘key matter’ was that the unit that had primacy would be responsible for making the strategic decisions.  When counsel for Aran put to Cruse that the JCTT had primacy by the time the arrest was taking place, he conceded only that they were aware of what was happening.  Cruse said he was unable to say whether the direction to hold off ultimately emanated from the JCTT.
52	Counsel for Aran asked Cruse about the course of the investigation into the threat offence subsequent to Aran’s arrest.  Cruse said he was unaware of FT having ever been approached to make a statement in relation to that allegation, and that he did not himself speak with FT, adding that it was not his role to do so.  He agreed he knew from speaking with MM that FT would have been willing to speak with police.  
Detective Sergeant Vincent
53	Vincent first became aware of Aran on 28 September 2020, when the IR recording Ari’s NSH report was forwarded to him in his capacity as a supervisor within the SIU.  He did not receive any further information about Aran until 10 March 2021 at 4:55pm, when he was briefed by Cruse.  
54	When questioned about the content of that briefing, Vincent was referred to his diary notes.  They read, in part, ‘Wants to travel — Syria.  No allowed (sic) would start stabbing’.  [REDACTED].  When it was put to him that what Cruse had conveyed to him was not a quote attributable to Aran, Vincent disagreed.  The following exchange then took place:
Well, the word ‘would’ suggests, doesn’t it, that what was being conveyed to you was someone else’s assessment of what might happen?–––On the night, we were told …[REDACTED], ah, that he was going to start stabbing people … if he wasn’t allowed to travel overseas and fight in the jihad.  That was what we were told. 
55	Vincent said he did not recall Cruse telling him that the knife Aran had purchased was, on Aran’s account, for fishing.  
56	Vincent explained that the reason for the question mark next to the expression ‘465 threats’ in his note from the 4:55pm briefing reflected his not being ‘100 per cent sure’, on the information he had received from Cruse, that police had a basis on which to apply for a warrant under s 465 of the Crimes Act in respect of an alleged threat to kill or threat to inflict serious injury.  He said he wanted to look at the Cruse IR and any information Tuica and Nibloe might find to make sure he had a basis on which to apply for a warrant.  Vincent agreed it followed that there was, at that time, a question mark over whether he had a basis on which to arrest Aran.  
57	Vincent said that, by the time Robinson directed him to have officers sit off 8 Moira Way at 6:00pm, he believed police had the power to arrest Aran.  At first, Vincent said that he and Robinson discussed whether police had the power to arrest Aran at 6:00pm.  Subsequently, however, he appeared to assert that he had no recollection of their discussion over and above the direction Robinson gave him.  He said that by the time of their discussion, he had read the Cruse IR.  He agreed that the IR contained nothing more significant than what Cruse had already told him at 4:55pm.  Vincent stressed that the briefing had been quick, and that he was waiting on the IR ‘to make sure’ he had reasonable grounds to believe Aran had committed the offence of threat to inflict serious injury.  He subsequently said that he had ‘pretty much’ formed the requisite belief after the briefing.  When asked by what point in time he had formed the view that police had a power to arrest Aran, Vincent answered that he had formed it by 5:20pm, when he tasked Tuica with preparing the affidavit. 
58	Vincent agreed that, at 6:21pm, he directed the officers to sit off 8 Moira Way and to intercept and search the Mazda in the event Aran got in it.  He further agreed that he directed officers to the following effect, as recorded in Hill’s notes from 6:21pm: ‘Intercept and search [vehicle], if offence identified arrest’.  He had earlier given evidence that he believed police would have the power to stop and search Aran’s car under the Control of Weapons Act in that circumstance.  
59	However, when it was put to Vincent that his instruction to the officers to arrest Aran was conditional upon their identifying an offence during the search of his car, he answered that, consistently with his notes of the briefing, he directed them to arrest Aran under s 459 of the Crimes Act for threat to inflict serious injury ‘but if they also identified an offence when they searched the vehicle, to arrest under that too’.  He repeated that he directed the officers to arrest and search Aran whether or not he got in a vehicle.  When it was put to Vincent that, if he believed police had the power to arrest Aran, it did not matter whether or not he got in a vehicle, Vincent replied that he was ‘just being specific’.  He said he did not recall directing the officers to seek direction from him in the event the vehicle was ‘clean’.  He was unable to explain why what was in his notes differed from what was recorded by the three officers. 
60	Vincent was taken to his diary notes from the briefing.  Vincent agreed that it was his usual practice to leave one line between entries.  It was pointed out that two lines separated his notes of the 6:21pm briefing from the following entry, and that another three lines separated that entry from the next.  When it was put to him that he had left space in his diary to enter in what he had said in the briefing at a later point in time, Vincent answered, ‘No, I don’t recall’.  Subsequently, he insisted that he ‘would’ve filled it in contemporaneously, just after the briefing’. 
61	When asked why Hill contacted him via radio for direction when Aran was observed leaving his house on foot, Vincent replied that they would have done so in case something had happened in the interim and for safety reasons, and that it was in line with standard practice.  Vincent said he directed the officers to arrest Aran not for threat to kill, but for threat to inflict serious injury. 
62	Vincent was asked whether there might have been an advantage in waiting for Aran to get into his car in circumstances where police had the power to arrest him regardless.  He first replied that there was no such advantage, then suggested there may be a ‘safety’ or ‘tactical’ advantage in waiting for a suspect to get into a car, before repeating that there was no such advantage here.  
63	Vincent agreed he was required to satisfy himself that he had a reasonable basis for his belief that Aran had made a threat to inflict serious injury in order to arrest him.  Vincent emphasised that police believed MM to be credible, though he agreed that MM was not himself supposed to have witnessed the conversation between Aran and FT.  He agreed that he never spoke with FT about what Aran had allegedly said.  To his knowledge, no one [REDACTED] spoke with FT subsequent to the receipt of the information by Cruse from MM.  Vincent agreed that he was aware FT had previously provided information to the police, and that he would have read the information on the first page of the Cruse IR to the effect that FT was willing to speak with police. 
64	Vincent said he was sent links to three or four IRs by Nibloe, which he ‘would have read’.  Briefly stated, the parts of the IRs to which Vincent was taken in cross‑examination recorded:
(a)	that FT had previously, on 5 February 2021, reported that Aran had expressed a desire to ‘do jihad’ in Australia if not permitted to travel; 
(b)	[REDACTED], it was assessed that the information FT had provided ‘was not entirely contemporary, did not demonstrate an escalation in behaviours, [and] came from a conflict in religious beliefs [REDACTED]’; 
(c)	that, ‘[a]fter [REDACTED] further clarification, this comment was not correct’, and that Aran had not made a comment about wanting to ‘commit jihad’ that day;
(d)	that Aran’s expression of a desire to travel overseas related to his belief that he was going to be imprisoned for his religious beliefs; 
(e)	that FT and MC ‘were non‑committal regarding time frames’ when asked when Aran had expressed a desire to carry out religiously motivated acts of violence and were unable to provide a contextual example of Aran doing so;
(f)	that FT had attempted to dissuade investigators from the seriousness of Aran’s reported comment, stating that Aran had ‘a big mouth’; 
(g)	that FT had ‘raised significant security issues on a number of occasions but when questioned further regarding the comments/views of the POI (‘person of interest’) it is sometimes not contemporary and in relation to past arguments/rhetoric from the POI’; and 
(h)	that FT [REDACTED] might sometimes ‘overly state’ things in order to get a reaction from investigators [REDACTED].  
65	While acknowledging the relevance of that information, Vincent disputed that it bore directly on FT’s credibility.  He denied contemplating the possibility that FT might have been exaggerating, either on 10 or 11 March.  He stated that, in the world of managing national security POIs, ‘assessments are fluid and they change quite rapidly’.  He said that police had serious concerns about the information they received from MM on 10 March, in light of which they believed Aran posed an ‘imminent’ threat.  He testified that, in his view, that information ‘supersedes any old information’, and that he was not one to ‘take the risk and say, “Oh he’s just bluffing”’. 
66	Vincent was asked about police interest in offending other than that for which Aran was arrested.  When questioned why the note in his diary, which records his tasking Nibloe with conducting background, refers to ‘POIs’, Vincent agreed that the plural was used because police were also interested in Ari.  He said, however, that he could not remember why specifically police were interested in Ari.  When it was put to him that police were contemplating arresting Ari depending on what evidence the execution of the search warrant turned up, Vincent said he thought so.  He agreed that he was contemplating that evidence might include evidence of preparation or planning to conduct a terrorist attack; that is, evidence of Commonwealth offences.  But when asked immediately thereafter whether the same thing was true in relation to Aran, Vincent replied that police ‘wanted to gain evidence [of offences] under the Crimes Act and also under the Control of Weapons Act’, adding that police ‘didn’t have Commonwealth warrants’.  
67	Later in his evidence, Vincent said that he was ‘looking at State‑based offences on that night’.  He said that he could not recall telling officers at the 6:21pm briefing that an application for a s 3E warrant was being considered.  He could not say where else information to that effect in Manno’s diary notes might have originated.  Vincent said that the reason Ari was a POI was because he was Aran’s brother and resided with him, so standard procedure dictated looking into him for safety reasons.  He agreed, however, that he made mention of Ari’s extreme views at the briefing.
68	Subsequently, Vincent agreed that it was ‘possible’ that plans or other documents evidencing preparations for onshore attacks which might be found on electronic devices belonging to both brothers were discussed at the 10:05pm briefing, albeit that he had no recollection of that fact.  
69	Vincent was also asked about police interest in the iPhone XR seized from Aran upon arrest.  He agreed that the threat for which Aran was arrested was supposed to have been uttered to FT, and that there was no information available to police that Aran had used his phone to record himself making the threat.  But he maintained first, that Aran ‘could have’ recorded himself uttering the threat on the phone or another electronic device and, second, that Aran might have made comments to the effect that he was going to go out and start stabbing people to like-minded individuals on Telegram.  Vincent said he could not remember whether the phone was discussed at the 2:00pm debrief, and that he was not involved in any decisions made vis‑à‑vis the phone after it had been seized.  He could not recall whether a need to obtain a statement from FT was discussed at the 2:00pm debrief.  More generally, he said he had no further involvement in the investigation into the brothers following that debrief. 
70	Vincent was questioned about the investigation into the threat offence once Aran had been arrested.  At one point Vincent said that he could not recall whether or not he had asked FT about what Aran was supposed to have said, but ultimately he appeared to accept that — despite having spoken with FT on the phone [REDACTED] — he never did.  As to whether any of his colleagues was tasked with approaching FT for a statement, Vincent said variously that he could not recall whether or not anyone was, and that he thought FT might have declined a request to provide one.  Later, however, he testified that FT and MC were cooperative [REDACTED] and answered all questions put to them. 
71	Vincent initially agreed that FT was the only person who had heard the threat.  Subsequently, however, he disputed that FT was ‘necessarily’ the only source of evidence that the threat had been uttered, while accepting that police had no information that anyone else heard it.  He said that MC and Mariebelle could ‘potentially’ have heard the threat.  When asked whether either of them was approached to make a statement, Vincent gave a non‑responsive answer, rehearsing the line that Aran could have had conversations ‘about making those threats’ with fellow extremists on Telegram.  
72	Asked about the JCTT’s involvement on 10 March, Vincent said that he was made aware during his 4:55pm briefing with Cruse that the officer in charge of the SIU, Inspector Reinke (‘Reinke’), was liaising with the JCTT.  He said he was unsure what exactly Reinke was speaking with the JCTT about.  He agreed that possible Commonwealth offences might have been discussed, and said discussions about who was to have primacy and about assistance with any police action taken would have formed part of the communications.  Vincent agreed that one reason the JCTT members were brought in to assist with the execution of the warrant on 10 March was because it was contemplated police might uncover evidence of Commonwealth terrorism offences.  But he stated that the primary reason for their presence was manpower; it was an afternoon shift, and the SIU did not have enough members to execute a warrant safely.
73	Vincent denied that police were really concerned with getting hold of electronic devices and not with investigating the alleged threat.  Similarly, he did not accept that the true purpose of the police operation on 10 March was to search for evidence of Commonwealth offences.  
Hill, Edis and Matthews
74	Each of the three officers had taken contemporaneous diary notes of the briefings they received on the afternoon of 10 March.  Each gave evidence consistent with their notes and broadly consistent with each other.  Hill, Edis and Matthews were part of Team 2, and where necessary I will refer to them collectively as ‘Team 2’.
75	Hill first heard of the accused during a 5:40pm briefing by Vincent.  At 6:00pm, he was instructed to sit off 8 Moira Way; and to be in sight of it so as to be able to watch any comings and goings from it, but not to approach the residents.  
76	At 6:21pm, Vincent directed him, Edis and Matthews to make their presence known and intercept and search the Mazda only in the event Aran left the address in it, but not otherwise.  The justification for the potential search was information that Aran had recently purchased a knife and a knuckleduster.  Hill said that the instruction Vincent gave him and his colleagues to arrest was conditional upon their finding either of those items in the vehicle.  He said Vincent instructed them to contact him for further instructions in the event the vehicle was clean.  Hill agreed that the reason he radioed Vincent when Aran was observed to depart 8 Moira Way on foot was because he did not have instructions about what to do in that event.  Hill’s notes from the 6:21pm briefing record that ‘If [Aran] can’t travel to Syria he’s going to stab people’.  Hill agreed that what was conveyed to him at the briefing which caused him to take that note was a concern that had been relayed to police about what Aran might do.  
77	When he arrested Aran, Hill was relying on the direction he received from Vincent as the source of his power to do so; he did not do so on the basis of any belief he formed for himself that Aran had committed an indictable offence.  He said the direction was a direction to arrest Aran for threat to kill.  Hill said Aran’s iPhone XR was taken pursuant to a ‘safety and evidence’ search.  He said he had no notion of what evidence of a threat might have been on the phone; rather, he was acting under Vincent’s instructions, which included a direction to seize whatever possessions Aran had with him.  
78	Hill gave evidence that police at the 10:05pm briefing were instructed to search for knives, knuckledusters, computers, mobile phones and other electronic devices.  He did not recall whether there was any discussion about what the electronic devices were supposed to be evidence of.  Nor did he recall whether any reference was made to possible onshore attacks or terrorism offences.  He said the briefing was ‘operational’ in nature. 
79	On the subject of the Cellebrite extraction, Hill stated that Tuica did not ask him to look for any particular information when he downloaded the iPhone XR’s contents; she wanted the data made available so that other police could examine it.  Consistently with that direction, he did not conduct any analysis of the data on the phone.  
80	Matthews gave evidence that he knew nothing about Operation Lightsout until a briefing he received from Vincent on 10 March, which his notes record as having taken place at 6:15pm.
81	Matthews’ evidence was that, at that briefing, the officers present were tasked with conducting static surveillance at the address.  They were told to search the vehicle only if Aran got into it and drove it.  Matthews agreed that he was not tasked with arresting anyone at the briefing, and that he was not going to do that without further direction.  Matthews confirmed he took the following note during the briefing: [FT says Aran] ‘wants to travel to Syria.  If can’t travel, wants to start stabbing people’.  
82	Matthews said that he arrested Aran for threat to kill on the basis of a direction Vincent issued to that effect.  He did not himself know of the facts and circumstances providing the basis for the arrest.  The iPhone XR was seized as part of the arrest, for the officers’ ‘safety and evidence’. 
83	Matthews had initially been tasked with performing the Cellebrite extraction of the phone before Hill assumed responsibility for it.  Matthews stated that his job was simply to download the contents of the phone at Tuica’s request, and not to analyse them.  He could not say what the evidentiary significance of any data on the phone was.  
84	Matthews gave evidence in relation to the 10:05pm briefing to the effect that Vincent and Robinson advised the police present that they were looking for, amongst other things, electronic devices and ‘plans and/or documents for possible onshore attacks’.  Asked about why the JCTT members were present, Matthews said that they were there to furnish additional numbers.  
85	[REDACTED], Matthews’ evidence was that FT, MC and Mariebelle [REDACTED] all cooperated with police.  To his knowledge, none of them was asked about any threats Aran had made recently.  
86	Like Hill and Matthews, Edis was unaware of any police interest in Aran [REDACTED] prior to being briefed by Vincent, according to her notes at 6:20pm, on 10 March.  She had no further involvement with the investigation following the execution of the warrants later that night. 
87	Edis gave evidence that at the briefing, it was conveyed by way of background that there were concerns held by [FT].  Her notes of the briefing record: ‘… concerns …  he wants to travel to Syria + if he cannot travel he will start stabbing ppl’.
88	Edis confirmed that she and her colleagues were directed to sit off the address and to intercept Aran only if he left it.  She said she could not recall whether they were instructed to intercept Aran only if he left in a vehicle, but agreed that her notes record the following direction: ‘If target leaves address, intercept and search vehicle’.  She agreed further that her notes recorded a direction to arrest Aran in the event any indictable offences were detected as a result of that search.  
89	Edis stated that Aran’s arrest was an exercise of the specific power to arrest a person upon direction by a police officer.  She said Aran’s iPhone XR was seized as the result of a ‘safety and evidence’ search which was a product of the arrest.  She could not say what the phone was supposed to contain evidence of.  
90	Edis did not ask [REDACTED] about any threats made by Aran during the execution of the warrant, nor did she recall any other officers doing so.  
Detective Senior Constable Simona Tuica
91	Tuica first became aware of Operation Lightsout when she was briefed by Vincent at 5:00pm on 10 March.  She agreed that her notes from that briefing record that there were serious concerns regarding ‘poss[ible] action, religiously motivated’.  She agreed that those concerns were conveyed by MM and were relayed to her ‘at a general level as being a fear of what [Aran] might do’.  Her notes contain no reference to a specific threat made by him.  She disagreed that she would necessarily have made a note of such information had it been told to her.
92	When Tuica was tasked with preparing the affidavit, her understanding was that the basis of the application for the warrant was that police were investigating the offences of making threat to kill and threat to inflict serious injury and offences against the Control of Weapons Act.  When asked whether the sufficiency of the evidence of any such threat was discussed at that time, Tuica responded that the information relayed to her was that there were concerns Aran would potentially carry out an attack on members of the public and MM.  Tuica said the need to obtain electronic devices from the premises was mentioned at the outset.  She agreed that the only allegation of a threat was one Aran supposedly uttered [REDACTED] and that police had no information suggesting he had recorded it, though he ‘could have’.  But she said it was thought electronic devices might contain evidence of online purchases of weapons.  Later, she gave evidence that ‘we just didn’t know what we will find on any phone’. 
93	Tuica attended the 10:05pm briefing that preceded the execution of the warrants.  She did not recall plans or documents for possible onshore attacks being mentioned at the briefing, but added that that did not mean they were not.  She had no recollection of it being discussed that electronic devices might contain evidence of terrorism offences.  Asked whether officers at the briefing were told that evidence of terrorism offences was being looked for, Tuica answered, ‘If we were going to locate anything that was related to terrorism offences, we would have seized that, and there was [reference] to that in the affidavit by him making the comment about a jihad within Australia’.  Tuica agreed that the JCTT members were present at the briefing.  She said they were there because the SIU did not have enough resources to execute the warrant.  
94	[REDACTED].  She said she knew FT was the ultimate source of information about the alleged threat; she knew he had provided police with information in the past; and that she had read that part of the Cruse IR where it was stated that he was willing to speak with police.  [REDACTED].  Subsequently, Tuica said that it was ‘impractical’ to ask FT for a statement while the warrant was being executed and that it was not her role to do so, but that police planned on taking one at a later point in time, depending on what evidence the search turned up.  
95	When it was put to Tuica that no one took a statement from FT, Tuica said she was unsure.  Counsel for Aran queried how it was that she, the informant, did not know whether or not FT was ever approached to make a statement.  Tuica replied that the investigation was taken over by a partner agency and that she had no further involvement with it after that.  She said that, as at 11 March, she expected that she or a member of her team would approach FT for a statement.  The detective said that she had been a police officer for 13 years, during which time she had been involved in other investigations concerning threats, and that she had never been involved in an investigation where the only person who was alleged to have heard the threat was never approached to make a statement about it.  
96	Likewise, Tuica said that the reason she recommended the brief for non‑authorisation was because the investigation had been taken over by the JCTT.  It was about not ‘doubling up’, she said — had the JCTT discovered evidence of the charges in the brief on the iPhone XR or the Acer laptop, they would have laid those charges.  Tuica said she had planned personally to conduct an analysis of the Cellebrite report, but that she ‘had to go away for a week interstate’ and that, by the time she returned, the investigation had been reallocated.  Inconsistently with the evidence of Hill and Matthews, Tuica stated that Hill had a ‘preliminary look’ at the data on the phone when he performed the extraction and informed her that ‘nothing was apparent at the time the download was happening’.  
97	Consistently with her evidence that she had planned to continue investigating the threat and weapons offences upon her return, Tuica said that she had not by 11 March formed a view about whether or not the brief would be authorised.  Counsel for Aran questioned Tuica about an email sent by Biram at 9:25pm on 11 March which reads, in part:
Team 1 (Simona) will be taking care of the “brief” (likely non auth) — but we will continue to investigate as we have been.  It will be beneficial to get the downloads and assess them holistically for the shell and our records — even if there isn’t [sic] any criminal offences in there.  
Tuica said she did not know where Biram might have got the idea that the brief would not be authorised.  She said she did not speak with Biram on 10 or 11 March, nor did she speak with any police members senior to her about the future of the investigation on 11 March.  
98	Tuica was questioned about her covering letter dated 9 June 2021 which she submitted to Robinson, recommending the brief for non‑authorisation, wherein she wrote that ‘preliminary inspection of the electronic devices … failed to identify any other offending’.  She denied that police were looking for evidence of any particular other offending, stating, ‘We look at the whole material available, and if there are any other offences … disclosed then we would be following up on that’. 
99	Tuica denied that the investigation into the threat was not genuine, and that it was a pretence used to justify Aran’s arrest and search in the hope of discovering evidence of other offending, including on electronic devices belonging to the brothers.  
100	The witness was cross‑examined extensively about various shortcomings of the affidavit she submitted in support of the s 465 warrant.  The validity of that warrant was not impugned on the application; rather, counsel for Aran sought to rely on the inaccuracies as ‘related misconduct’, consideration of which was apt to the exercise of the discretion to admit the evidence.  Tuica conceded the affidavit contained various inaccuracies, including:
(a)	the misattribution of information to FT via MM in conversation with Cruse on 10 March, when in fact it came from IRs resulting from earlier engagements with [FT and MC] and from Unit 5’s engaging with Aran online; 
(b)	a claim that Aran had purchased a knuckleduster ‘2–3 days ago’ when police had no information vis‑à‑vis the time of purchase; and
(c)	a failure to note that Aran had removed the picture of Abu Humam Kurdi from his Telegram profile. 
101	Tuica agreed that, while she read the Cruse IR in the process of drafting the affidavit, she omitted to include that Aran’s explanation for possessing the knife was that he used it for going fishing.  But she maintained that that information was not relevant, because, though she did not know how big the knife was or what it looked like, she had been told it was a ‘hunting knife’ and its use in fishing would be ‘disproportionate’.
102	Tuica agreed that the affidavit made no reference to information in various IRs which tended to suggest that FT might not be a credible or reliable source of information about Aran.  Tuica’s explanation was that she did not recall reading information to that effect in the course of preparing the affidavit.  She agreed it was her duty to include all material relevant to whether a magistrate could form the requisite suspicion in the affidavit, whether or not it tended to establish that suspicion. 
103	During the record of interview, Tuica demanded that Aran provide his passcode for the iPhone XR.  Initially, Tuica denied having made such a demand, but then conceded she had upon being played the audio‑visual recording of the interview.  In the interview, Tuica tells Aran that he is required to provide the passcode by virtue of the power conferred by the warrant pursuant to s 465AAA of the Crimes Act.  Tuica agreed that what she told Aran about his obligation to provide the passcode was incorrect, and that she was aware at the time of the interview that she had no lawful basis to demand a passcode in circumstances where the phone had been seized under common law, and not under warrant.  She explained that it must have ‘slipped her mind’.
Senior Constable Nibloe
104	Nibloe first became aware of the Sherani family when he was briefed by Vincent shortly before 5:00pm on 10 March.  Nibloe could not remember the details of exactly what was said at the briefing, and deferred to his notes, which he said record concerns of escalating violence and weapons, discussion of a warrant for weapons and electronic devices, and an intention to arrest Aran.  The witness agreed that his notes did not record the supposed basis for an arrest, and that he could not remember what was said about that.
105	When referred to the 5:37pm entry in Vincent’s diary recording his being tasked with conducting background on ‘POIs’, Nibloe said that he could not recall why Ari was being discussed, but that he guessed it was for risk assessment purposes — police were looking into who would be present at 8 Moira Way when the warrant was executed.  
106	The witness was asked about the 10:05pm briefing.  He said he was told police were looking for a knife and electronic devices.  He could not remember exactly what he was told might have been on those devices.  Asked whether he was conscious when he attended the address that evidence of terrorism offences was being looked for, Nibloe responded that he was aware ‘there may be something there’, but said that awareness came from his general experience of working at the SIU. 
107	Nibloe assisted in the execution of the warrant.  He gave evidence that the Acer laptop was seized on the basis that it might have contained evidence of a knife being procured.  Nibloe did not speak with any of 8 Moira Way’s inhabitants during the conduct of the search.  
Senior Constable Seymour
108	Seymour had no knowledge of Operation Lightsout prior to the circa 5:00pm briefing with his colleagues Tuica and Nibloe.  The legal basis for Aran’s arrest was not explained to him.  
109	Though Seymour prepared the operation order used at the 10:05pm briefing, which specified that the ‘mission’ was the seizure of evidence including mobile phones, computers and electronic storage devices, he was unable to explain why police were looking for those items and could not say what sort of evidence it was thought they might contain.  He said that he was taking directions from Vincent and other members of the team when he compiled the slideshow.  
110	Seymour assisted in the execution of the warrant.  He made general conversation with members of Aran’s family at the scene, but did not ask them about any offences Aran might have committed.  
Detective Sergeant Manno
111	Manno first became aware of Aran [REDACTED] on 10 March at the 6:21pm briefing.  He agreed that what was communicated to him at that briefing was that FT and MM had concerns about Aran.  Asked about his note from the briefing which records that the knife Aran had bought was ‘for fish’, Manno explained that it was communicated at the briefing that the knife ‘potentially could have been for fishing’, but that ‘that could have been a ruse as well’.  The witness was told at the briefing that Ari was also a POI.  He said that the question mark next to the expression ‘3E warrant’ in his notes of the briefing meant that ‘that point [was] still being determined’. 
112	The detective gave evidence that he was present at 8 Moira Way when the warrant was executed, but that he did not speak with any occupants of the premises. 
Detective Sergeant Robinson
113	Robinson had little involvement with Operation Lightsout prior to 10 March, stating that monitoring information received about Aran was not an ongoing part of his role after he approved the dissemination of the IR recording Ari’s report to the NSH on 1 September 2020.  [REDACTED].  
114	Robinson was firm that he believed, on the basis of the information he had received from Cruse to the effect that Aran had expressed a desire to ‘injure people’ and had purchased a knife and a knuckleduster, that Aran had committed an indictable offence, namely threat to kill or threat to inflict serious injury. 
115	Robinson’s evidence was that he had reached the view that police had the power to arrest Aran well before 6:00pm, when he directed Vincent to send a team to sit off the address.  Why then, counsel asked, did police not simply have Aran arrested?  The detective responded that, although the direction was to have a team sit off the address, there was a ‘clear understanding’ at that stage that, if Aran left the address, police would ‘potentially be arresting’.  He said the reason the decision to arrest was conditional was because police were waiting for a search warrant and did not want to lose track of Aran in the meantime.  Subsequently, Robinson gave a slightly different reason, stating that police did not want to lose Aran because they were concerned he would injure or kill someone, and in circumstances where they did not have a surveillance team at their disposal, their options were limited.  Robinson added that, in the event Aran had not left the house prior to the execution of the warrant, police would have executed the warrant and arrested him simultaneously. 
116	The witness agreed that the threat for which Aran was arrested was something he was supposed to have uttered [REDACTED], and that there was no indication he had recorded himself doing so on his phone.  He agreed that ‘the evidence of the threat if it was going to come from anywhere would have come from [FT]’.  Subsequently, however, Robinson said that the phone might have contained indirect evidence of the threat; for example, it might have contained evidence of the purchase of weapons ‘connected to’ the threat.  
117	The detective was asked about the involvement of the JCTT on the evening of 10 March.  He explained that the JCTT is ‘an investigation unit’ with a fairly narrow focus, namely ‘investigating terrorist offences’.  He denied, however, that the JCTT had oversight of the investigation from the afternoon of 10 March, and said that their assistance that night was limited to the provision of personnel and did not extend to input from an operational decision‑making point of view.  Robinson denied that the JCTT’s role during the execution of the warrant was to look for evidence of Commonwealth offences. 
118	Robinson said he could not remember any discussion around the time of the 6:21pm briefing to the effect that a s 3E warrant was being considered — though he accepted there may have been such discussion — nor could he shed light on what the reference in Tuica’s brief for non‑authorisation that he signed off on to ‘other offending’ meant.
119	Robinson was asked about investigators’ interest in plans or documents for onshore attacks and electronic devices.  While the witness said he did not recall any mention of such plans or documents at the 10:05pm briefing, he accepted that they must have been discussed if that was recorded in Matthews’ notes.  He agreed that such evidence would constitute evidence of the offence of doing acts in preparation for, or planning, a terrorist act.  But he disagreed that the police’s purpose was to look for evidence of that offence, while at the same time adding that ‘it’s certainly something you’d want to be briefing your members to … keep an eye out for’.  Consistently with his earlier response, the detective suggested that electronic devices and plans or documents might have contained circumstantial evidence of the threat.  
120	Robinson also gave evidence about the police’s interest in Ari.  He agreed that his diary notes from 8:25pm contemplate that Ari might be arrested, and that police were looking more broadly at what the two accused were up to.  The detective agreed at first that whether Ari would be arrested depended on what evidence the search uncovered.  But he retracted that statement, stating that the reference in his notes at 8:25pm to an ’arrest crew’ was there because police thought the situation might escalate and they wanted to manage risk.  
121	Robinson was asked about the apparent failure of police to ask FT about the threat Aran had allegedly made.  While he resisted the proposition that there could be no successful prosecution for the threat without FT’s evidence, the detective accepted that, absent that evidence or a discovery that the threat had been recorded, ‘[p]otentially it wouldn’t get across the line’.  Robinson said he did not know whether FT had been asked for a statement by the time he signed off on the brief for non‑authorisation on the basis that there was insufficient evidence of the threat.  He gave evidence to the effect that he had been a police officer for 29 years and had never been involved in the investigation of a threat where the only witness to its being uttered had not been approached for a statement.  He said he did not ask whether FT was going to be approached for a statement because Vincent was responsible for the investigation.  
122	Like Tuica, Robinson was questioned about the affidavit his colleague drafted and he swore.  Counsel for Aran took Robinson to information in various IRs that tended to detract from the reliability or credibility of FT [REDACTED].  The detective’s evidence was that he did not recall seeing that information, though he might have.  Robinson said he was unaware at the time he swore the affidavit of a view held by police that information obtained from FT might not be reliable.  Nor did he recall seeing the IR in which it was noted that Aran had removed the image of Abu Humam Kurdi from his Telegram account, though Robinson did not agree that information was relevant in any event.  Unlike Tuica, Robinson conceded the relevance of Aran’s claim, recorded in the Cruse IR, that the knife he had purchased was for fishing.  He characterised the failure to include it in the affidavit as an ‘oversight’. 
123	In the affidavit, Robinson deposed that he had been given information by Tuica, that he made an appraisal of that information, and that a summary of it is set out in what follows.  But he gave evidence that, when he was in the process of reviewing the affidavit, he did not refer to anything other than the information in the Cruse IR and that which had been imparted to him orally by Cruse.  He did not ask to see the source of information in the affidavit that did not emanate from Cruse.  Robinson’s evidence was ultimately that his practice, when someone puts an affidavit in front of him, is to ‘trust that they’ve done the due diligence’.  
Detective Sergeant Biram
124	Biram was involved in Operation Lightsout from its inception in January 2021, and had dealt with Aran and [REDACTED].  Biram finished work at 4:00pm on 10 March, unaware of any plan to arrest Aran.  He learned of the arrest at 10:00am the next day, when he was contacted by a colleague out of hours. 
125	On  11 March at 2:00pm, Biram attended a briefing with police members involved in the execution of the warrant, including Reinke, L’Estrange, Robinson and the members of Team 1, of which Tuica was a member.  Biram had no specific recollection of Tuica being present.  He said that there may have been discussion about the nature of the evidence against Aran at the meeting, but that all he could recall was discussion about how the location in which the knife had been found might impact the ability of the police to successfully prosecute ‘in relation to the knife’.  He said the evidence of the threat was ‘not really’ discussed, and that he only became aware of the specifics of the alleged threat later that week when he read an IR.  Biram said he did ‘not really’ recall any discussion about what a download of the seized iPhone XR might yield.  Biram explained that Tuica was responsible for the investigation into the threat; his role was ‘the ongoing management of the investigation against Mr Sherani in terms of assessing his radicalisation’.  
126	Biram attended a further briefing at 3:00pm.  The purpose of that meeting was to discuss the ongoing management of Aran through the CVE process, and not the investigation of any offences Aran was suspected of having committed.  Biram agreed that he was going to have no role in the investigation of the offences for which Aran had been arrested on 10 March. 
127	The witness said that, to his recollection, there was no discussion at either of the briefings he attended about whether [FT] would be approached for a statement.  
128	At 9:25pm, Biram sent the email referred to at [97] above.  It was sent to various officers, but not Vincent or Tuica.  Biram said he was expressing the view that the brief was unlikely to be authorised in relation to the alleged possession of a knife.  Biram denied he was making a comment about the threat charge, stating that he did not know the details of the alleged threat and thus could not have made an independent assessment.  At the same time, he said that, by the words ‘likely non auth’, he was conveying not his own view but something he had been told by others, potentially Team 1 members or Robinson.  He could not say precisely what those others had said to him.  
129	The detective denied that, by enclosing the word ‘brief’ in quotation marks, he was implying that the brief was not genuine.  He said there was no particular intention behind his use of quotation marks.  Subsequently, he said the expression ‘brief’ was short for ‘brief of evidence’, and that he might have used quotation marks to indicate that he was using an abbreviation.  
130	Biram said his statement in the email that police would continue to investigate and that the contents of the iPhone XR would be ‘beneficial’ even if they did not contain evidence of criminal offences reflected his interest in determining Aran’s level of radicalisation.  He denied his interest was in finding evidence of other offending.  He further denied that the view expressed that there might not be evidence of offending on the phone was the consequence of anything he was told on 11 March, adding that no one at that stage knew what was on the phone.  
Detective Acting Inspector L’Estrange
131	L’Estrange, who at the relevant time was a Detective Senior Sergeant at the SIU, was aware of Operation Lightsout from an early stage.  He was in a similar position to Biram in that he finished work at 3:00pm on 10 March, unaware of any plan to arrest Aran, and only learned of his arrest the following day.  Like Biram, he attended the briefings at 2:00pm and 3:00pm.  
132	L’Estrange gave evidence that the 2:00pm briefing related to the previous night’s events.  He said the evidence located that evening would have been discussed.  He recalled discussion about the location in which the knife was found.  He could not recall any discussion about steps that might be taken to verify whether the alleged threat had been made, or about whether [REDACTED] would be approached for statements.  He could not say whether [REDACTED] were ever approached for that purpose.  Nor did he recall discussion to the effect that it was unlikely the contemplated threat charge would go anywhere.  The witness said the 3:00pm briefing related to Aran’s engagement with CVE.  
133	The detective said that he could not recall any discussion at either of the briefings about whether Aran’s phone would be analysed for evidence of offences, but that it was ‘standard practice’ that it would be looked at to see whether there was evidence that supported the allegations on it.  He denied that there was discussion to the effect that it might be useful to download the contents of the phone even if they might not support the contemplated charges.  
134	Questioned about Biram’s email of 9:25pm, L’Estrange said that he did not know why Biram made the ‘assumption’ that the brief would probably not be authorised.  He speculated that Biram might have been alluding to the fact that police could not place the knife in Aran’s hands.  He agreed that Aran was not arrested for possessing a knife.  Asked about the quotation marks around the word ‘brief’, the witness said he did not hear anything to the effect that there would not be a genuine brief of evidence against Aran.  He said he believed that, if the evidence had been there, police would have proceeded. 
Submissions on behalf of Aran
135	It was submitted on behalf of Aran that his arrest on 10 March was unlawful because Vincent:
(a)	did not genuinely believe that Aran had committed the offence for which he was arrested; and/or
(b)	did not have reasonable grounds for such a belief; and/or 
(c)	Aran was  not arrested for the purpose of having him brought before a court to be dealt with for the offence which was said to have justified his arrest. 
136	It was argued that as at 4:55pm on 10 March, Vincent admitted he had a ‘question mark’ over whether he had a power to arrest Aran.  That statement was inconsistent with Vincent’s subsequent statement that, by the time Robinson directed him to have officers sit off 8 Moira Way at 6:00pm, he had formed the requisite belief.  Vincent’s explanation of the inconsistency — namely that, by 6:00pm, he had read the Cruse IR — should be discounted in circumstances where, by Vincent’s own admission, that document contained no more information than he had received during the briefing.  Nothing in the material Vincent read between the 4:55pm briefing and the time at which he directed Aran’s arrest was capable of supporting a belief that Aran had committed the threat offence.  To the contrary, the material with which he was provided cast doubt on FT’s reliability as a source. 
137	It was put that the ‘most powerful evidence’ of Vincent’s state of mind is to be found in the directions the detective gave to the arresting officers at 6:21pm.  Vincent’s evidence that he gave Hill, Matthews and Edis an unqualified direction to arrest Aran should not be accepted; rather, the evidence shows that Vincent’s direction to arrest was conditional upon the discovery of offending other than the threat offence.  Vincent’s evidence is inconsistent with the evidence of those three officers, whose evidence is consistent with diary notes they took at the time of the briefing, while Vincent’s own notes of the briefing were made at a later point in time.  Vincent was unable satisfactorily to explain why he gave Hill, Matthews and Edis specific information about what to do if Aran got in his car if he had given them an unconditional direction to arrest him.  Vincent’s answer that he was ‘[j]ust being specific’ was nonsensical.  That being so, the only inference open on the facts was that Vincent did not believe he had sufficient evidence that such an offence had been committed.  Vincent himself conceded that there was no operational or tactical advantage in waiting for Aran to get into the car.  
138	Counsel added that there were readily understandable reasons why Vincent had these doubts.  He pointed to the information in various IRs suggesting that FT might not have been a reliable source.  [REDACTED].  Counsel argued that at the time of the arrest, no one, including Vincent, ‘ha[d] actually formed a view with any certainty precisely what offences he’[d] committed’.  
139	In written submissions, counsel considered the alleged threat vis‑à‑vis the elements of the offences of threat to kill and threat to inflict serious injury.  A not insignificant portion of the written submissions was devoted to a discussion of the law relevant to those offences.  I will not rehearse that discussion here; it is enough to note two things.  First, the accused must intend or be reckless as to the complainant’s fearing the threat being carried out — merely ‘sounding off’ is insufficient.  Second, the context in which an utterance is made must be considered in assessing whether it amounts to a threat, and whether it was made with the requisite intent.  Counsel argued that the report police had was of ‘a teenager making a vague and conditional threat’ [REDACTED], ‘naming no‑one as a potential victim’.  It was submitted that those facts raised a question as to whether the alleged threat could reasonably be seen as anything more than ‘mouthing off’.  The information conveyed by MM, of itself, provided an insufficient basis upon which to form a belief on reasonable grounds that an offence had been committed. 
140	Counsel submitted that, at the time Aran was arrested, police only had second‑hand hearsay information; they had no account from anyone who heard the alleged threat; they were in possession of information that cast doubt on FT’s reliability as a source; and the person who was said to have heard the threat had not complained to police.  All these matters should have caused police to both doubt and further interrogate the information.  Counsel conceded that police regarded MM as a credible source of information.  
141	Asked whether Vincent himself was in possession of all this information, counsel responded that it did not matter: the question is whether Vincent had reasonable grounds for his belief, and all the information police had available to them is relevant to that enquiry.  It was submitted that the evidence demonstrates that FT’s tendency to exaggerate was known to police prior to 10 March. 
142	Counsel accepted that police had an obligation to assess the information that came through via MM on 10 March notwithstanding that investigators had previously formed the view that FT might not be a reliable source of information.  Nonetheless, he submitted that view was relevant to the assessment of that information.  Counsel also pointed out that the report FT had made to police on 5 February about Aran wanting to do jihad if prevented from travelling —that turned out not to be accurate — bore a close degree of similarity to the statement MM relayed to police on 10 March.  
143	The crux of counsel’s argument was that the only legitimate purpose of an arrest is to have the person arrested and brought before a court to be dealt with for the offence for which he or she was arrested, and that Aran was not arrested for that purpose.  Rather, he was arrested for a purpose foreign to the power, namely in order that police could investigate Aran’s activity generally and the potential commission by him of Commonwealth offences.  Counsel for Aran made clear that, because Vincent directed Aran’s arrest, it is his purpose that matters.  However, he submitted that the action or inaction of other police officers was capable of constituting circumstantial evidence of the purpose for which Vincent acted.  
144	The ulterior purpose with which police acted, it was submitted, could be inferred from the following matters.  Overall, there was no genuine investigation into the offence for which Aran was purportedly arrested.  [REDACTED].  Neither FT nor [REDACTED] was ever asked about the threat Aran had supposedly uttered [REDACTED], despite indications that FT was willing to speak with police.  
145	Other material shows that no such investigation was even going to be undertaken.  Biram’s email of 9:25pm on 11 March demonstrated that.  The only explanation for the quotation marks surrounding the word ‘brief’ was that they were intended to communicate the fact that Biram ‘was describing something he didn’t think was going to be a real brief’.  Biram must have got that impression from the briefings he attended earlier that day, in all likelihood the 2:00pm briefing on 11 March.  In that connection, counsel submitted that Tuica’s evidence that she would have proceeded with the investigation into the threat upon her return to work had the JCTT not taken it over should be discounted in circumstances where she was the informant and submitted the brief for non‑authorisation in June.  He submitted that the evidence of and relating to the actions of Tuica, Vincent, Robinson and Biram suggested those officers shared an understanding that the matter was ‘going nowhere’.  
146	Counsel argued that Aran’s iPhone XR was seized and its contents downloaded despite the fact that police had no information it would contain evidence of the alleged threat.  Counsel for Aran submitted that it was apparent from the record of interview that police interest in the content of the phone was not due to the fact it was thought it might contain evidence of the alleged threat.  Counsel also referred to the fact that Biram’s email stated that the contents of Aran’s phone would be useful while implying that the brief would not be authorised.
147	The JCTT were involved from an early stage on 10 March, which shows that the true focus was on Commonwealth offences.  Counsel submitted that the Court ought not accept the evidence given on the voir dire to the effect that the JCTT members were present at the execution of the warrant only to make up the numbers, and invited the Court to conclude that they were there to identify whether any Commonwealth offences had been committed.  Section 3E warrants and plans and/or documents for possible onshore attacks had been discussed at the 6:21pm and 10:05pm briefings, respectively.  Both brothers were designated POIs despite the fact that there was no suggestion Ari — whom Robinson and Vincent admitted they were contemplating arresting — was involved in the offending police were purportedly investigating on 10 March.  
148	Belatedly, counsel sought to rely on the decision of New South Wales v Robinson, where a majority of the High Court held that a requirement for the police officer to have an intention to bring a person before a court means, as a matter of substance, a requirement to have an intention to charge that person.  Counsel again relied on the fact that no police officer, including Vincent, attempted to obtain a first‑hand account of the reported threat from FT.  Additionally, Vincent was present at the 2:00pm briefing on 11 March, which ‘occurred after Mr Biram had sent his email earlier that day referring to the likely non‑authorisation of the ‘brief’ against Mr Sherani’.  In those circumstances, counsel submitted that it ‘can’t be seriously suggested’ that Vincent intended for Aran to be charged at the time of his arrest. 
149	Even if the arrest was lawful, counsel submitted that the seizure and examination of Aran’s iPhone was unlawful.  The basis on which the phone was seized for further examination was the common law power to seize property as evidence as an incident of an arrest.  Counsel relied upon Ghani v Jones and Dillon v O’Brien and Davis to support the submission that the power to seize property is limited to property which would constitute ‘material evidence’ in relation to the crime for which the accused is arrested.  It was argued that Aran’s phone was never going to provide ‘material evidence’ of him uttering a threat [REDACTED] and it was therefore seized and examined illegally. 
150	Counsel for Aran argued that if the Court reaches the point of the balancing exercise, the impugned evidence should nonetheless be excluded.
151	Counsel accepted that the probative value of the evidence is high and its importance in the proceeding is significant.  Counsel also conceded that the alleged offences to which the evidence relates are inherently serious.  However, counsel submitted that the offending is ‘low on the scale of seriousness for crimes of this class’.  
152	As to the factors found in s 138(d)–(f), counsel submitted that where a person is arrested unlawfully, their physical restraint constitutes a battery and their subsequent detention constitutes a false imprisonment.  The right to liberty is protected in the International Covenant on Civil and Political Rights (‘ICCPR’), Article 9, and the unlawful arrest of Aran was a serious transgression of his rights.  It was submitted that the evidence shows Vincent turned his mind to the lawful exercise of police powers, and recognised their limits; this is reflected in his original instructions to the arresting team at 6:21pm.  His subsequent direction to Aran reflected a conscious decision to disregard those lawful limits.  Any concern about Aran, or interest in investigating Commonwealth offences, provides no justification for his conduct, and evidences an ulterior purpose.
153	Further, the phone was not lawfully seized, and this also weighs against admitting the evidence.  Counsel repeated that the phone was never going to contain material evidence of Aran uttering a threat [REDACTED].  Finally, the affidavit prepared in support of the search warrant misstated the intelligence held by police.  Whilst the validity of the search warrant was not challenged, counsel argued these misstatements demonstrate the sustained impropriety which infected the investigation into Aran on 10 March.  Tuica’s unlawful demand that Aran provide his PIN code, made during the record of interview, is another example of this sustained impropriety.  
154	As to paragraph (g), counsel argued this factor is significant in the circumstances here.  None of the police witnesses accept they have done anything wrong, and many are senior officers.  The court can safely infer that there have been no disciplinary measures at all, and none are likely.  
155	Dealing with paragraph (h), counsel submitted the relevant point in time to consider is at the point of arrest.  At that time, police had no power to stop Aran and seize his phone.  The phone could not have been lawfully obtained, and this weighs in favour of exclusion. 
Submissions on behalf of Ari
156	Counsel for Ari did not cross‑examine any witness or tender evidence.  They  essentially adopted the submissions made on behalf of Aran.  
Prosecution submissions
157	The prosecution submitted that the accused has not discharged his burden of proof.  They argued that to find that the arrest was unlawful, the court must not merely reject Vincent’s evidence, but positively find he had an alternative mindset.  That is, he deliberately engaged in misconduct and arrested Aran when he knew he did not have the power to do so, albeit the arrest was for investigative purposes.  
158	The prosecution argued that Vincent had sufficient information to form a reasonable belief that Aran had committed the offence of threat to kill or threat to inflict serious injury.  Vincent had received a briefing from Cruse, during which he was told that Aran was angry and had made threats to go out and start stabbing members of the public.  This information was later corroborated by Vincent when he read an IR that conveyed a report from MM to police to that effect.  A police officer does not need evidence capable of securing a conviction beyond reasonable doubt before they can initiate an arrest.  
159	One indicator that police, including Vincent, genuinely believed Aran had uttered a real threat is that they applied for a search warrant based on the same information.  Another police unit was directed to engage with the accused over social media, to see what he might be posting.  The prosecution argued Vincent, subjectively, believed he needed to arrest the accused for making a threat to kill or inflict serious injury.
160	Objectively, the prosecution argued the belief was reasonable in all the circumstances.  The information received by Cruse, conveyed to Vincent verbally and recorded in the IR, provided a sound reasonable basis for a belief that the accused had uttered the threat.  In subsequent calls made by MM to police at 5:14pm and 5:27pm on 10 March, MM reiterated that FT was extremely worried.  FT also reported that the accused regularly states he wants to hurt people, and had said it was permissible to kill non‑Muslims.  Vincent was not obliged to discount what he was told on the basis that police had earlier questioned FT’s accuracy and tendency to exaggerate matters.  Such earlier material does not bear directly on the reasonableness of the belief Vincent held on 10 March.
161	As to the discrepancy between when the arrest was directed, as between Vincent on the one hand and Hill, Edis and Matthews on the other, the prosecution submitted that it was an ‘arguable discrepancy’.  The prosecution argued that the fact is that Vincent did direct them to arrest Aran, and they did arrest Aran, so ‘that’s that’.  The prosecution did not accept the accounts were necessarily inconsistent.
162	When asked on what basis police were entitled to interrogate the iPhone XR, and retain it after Aran was released without charge, the prosecution argued that it was entirely reasonable that the phone would have been investigated for evidence that may corroborate the fact that Aran possessed an intention consistent with what [FT] reported.  The phone may have contained extremist material or contained expressions of similar sentiments or threats, and could plainly have contained evidence relevant to proof of the threat.
163	The prosecution argued the court should reject the suggestion that Vincent had an ‘ulterior purpose’ for arresting Aran, which was at times characterised as a ‘nefarious’ or ‘corrupt’ purpose.  The prosecution argued that there is no basis on the evidence to conclude Vincent held such a mindset.  Further, if Vincent had such a purpose, he would not have openly expressed doubt earlier in the day about his ability to arrest Aran.
164	The offences of make threat to kill or threat to inflict serious injury, and certain Commonwealth terrorism offences, may overlap where that threat is motivated by extremist ideology.  The State offence does not require the threat to be directed towards a specific person or persons.  
165	The prosecution conceded that if the arrest was unlawful, then all the impugned evidence was obtained in consequence of that impropriety or illegality.  
166	If the court reaches the balancing exercise, the prosecution argued the probative value of the evidence is high and the importance in the proceeding is significant.  They described the value of the video evidence as 'extreme’.  They submitted the offences are inherently very serious, consisting of multiple acts of terrorist activity, and this is a factor which weighs in favour of admissibility.  There is a great public interest in prosecuting such serious offending.  
167	Dealing with s 138(3)(d) and (e), the prosecution submitted that the nature and gravity of any impropriety would depend on the factual findings reached.  However they argued that, even taking the defence arguments at their absolute highest, you have a police officer who has a strong belief that Aran is potentially involved in Commonwealth terrorist offences, and has intentionally engineered an arrest based on material he received from other officers and IRs.  Such impropriety would be vastly outweighed by the other factors that favour admissibility.
168	The prosecution conceded that an unlawful arrest would be contrary to or inconsistent with Article 9 of the ICCPR.  They also conceded that there have been no further proceedings taken nor likely to be taken in relation to the alleged improprieties.
169	As to paragraph (h), the prosecution argued that where the impropriety is neither deliberate nor reckless, this is a ‘neutral’ factor.  Here, there is no basis to contend that the evidence could not have been obtained but for the alleged impropriety.  
Legal principles
Section 138 — Exclusion of improperly or illegally obtained evidence
170	Section 138 provides:
(1)	Evidence that was obtained—
(a)	improperly or in contravention of an Australian law; or
(b)	in consequence of an impropriety or of a contravention of Australian law— 
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. 
… 
(3)  	Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a)  	the probative value of the evidence; and
(b)  	the importance of the evidence in the proceeding; and
(c)  	the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d)  	the gravity of the impropriety or contravention; and
(e)  	whether the impropriety or contravention was deliberate or reckless; and
(f)  	whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)  	whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)  	the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. 
171	Section 138 creates a two‑step test with a shifting onus.  First, the party seeking to exclude the evidence must establish that the evidence was obtained in one of the ways provided for in s 138(1)(a) or (b).  If this is done, the party seeking to admit the evidence then bears the burden of persuading the court that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in the way in which the evidence was obtained.  Section 138 is not expressed as a discretion, but, rather, in mandatory terms.  For that reason, it is said that s 138 does not confer a discretion.  
172	The applicable standard of proof at all times is the civil standard.  If the court reaches the second step, s 138(3) provides a non‑exhaustive list of matters that the court must take into account when undertaking the balancing exercise required by s 138(1).  When balancing the relevant matters, the court must consider the categories of impugned evidence separately, as results may vary.  
173	An ‘Australian law’ is a law of or in force in Australia, whether written or unwritten.  A person contravenes a law when he or she ‘do[es] that which is forbidden by law or fail[s] to do that which is required by law to be done’. 
174	The expressions ‘improperly’ and ‘impropriety’ are not defined, and it has been observed that there would be little point in attempting to define them.  Where, as here, the conduct of law enforcement officers is concerned, whether evidence was obtained improperly or in consequence of impropriety is determined by reference to ‘minimum standards of acceptable police conduct’.  It has been said that conduct will not be improper if it ‘merely blur[s] or contravene[s] those standards in some minor respect; it must be “quite inconsistent with” or “clearly inconsistent with” those standards’.
175	It is settled that s 138 has no application unless the party seeking to have the evidence excluded can satisfy the court that there is a causal nexus between the illegality or impropriety and the evidence being obtained.  In Employment Advocate v Williamson, Branson J said:
[I]t seems to me that the ordinary meaning of the provision indicates that par (a) of s 138(1) is intended to cover evidence obtained directly as a result of conduct that was improper or in contravention of an Australian law and par (b) is intended to cover evidence which, although not obtained directly as a result of improper or illegal conduct, would not have been obtained but for illegal or improper conduct.  
A ‘but for’ test of causation has since been applied elsewhere.  The chain of causation connecting the illegality or impropriety with the obtaining of the evidence may have many links and an extended temporal span.  A causal link that is ‘tenuous’ may still attract the operation of s 138.  However, the remoteness of the causal connection will be relevant to the balancing exercise required by the second step of the test.
176	The situation appears somewhat different where the evidence whose exclusion is sought is probative of an offence committed as a result of the alleged illegality or impropriety.  Section 138(1)(b) may apply in circumstances where offending, and therefore the evidence of that offending, was caused by illegality or impropriety.  In such a case, however, a straightforward application of the ‘but for’ test will not be appropriate.  Rather, it may be necessary to enquire into the proportionality between the illegality or impropriety and the offending conduct.  It may be appropriate to ask whether the illegal or improper conduct was of a kind that could be expected to give rise to the commission of an offence.  That is so not because s 138(1) requires proof of an additional element separate to the causal relationship in such circumstances, but because such enquiries bear upon whether the requisite causal relationship exists.
177	Here, the prosecution conceded that if the arrest of Aran and seizure of his iPhone XR on 10 March was unlawful or improper, then all the impugned evidence was obtained ‘in consequence of’ an impropriety or illegality.  I am not sure that concession was well made insofar as it concerns the evidence generated on 17 March, when Aran sought to evade arrest.  I will return to this issue.  
The power to arrest without warrant
178	In this State, the power to arrest a person without warrant derives solely from statute.  It is uncontroversial for the purposes of this application that the necessary power is found in Part 3 of the Crimes Act.  Section 458 deals with the arrest of a person without warrant who is found committing an offence.  Section 459 provides, relevantly:
459	Powers of police officer or protective services officer to apprehend offenders
(1)	In addition to exercising any of the powers conferred by section 458 or by or under any other Act a police officer … may at any time without warrant apprehend any person—
(a)	he believes on reasonable grounds has committed an indictable offence in Victoria (including any indictable offence which may be heard and determined summarily);
…
179	Unlike s 458, s 459 does not deal expressly with the situation where the arrest is made when the arresting person is instructed to do so by any police officer having the power under the Crimes Act to apprehend the offender.  However, there was no dispute that Vincent had the power to direct Team 2 to arrest Aran.  Thus, a police officer will be empowered under s 459(1)(a) to arrest a person — or to direct another to arrest him or her — where, first, the officer actually believes that the person has committed an indictable offence and, second, that belief is based on facts sufficient to induce that state of mind in a reasonable person.  
180	An arrest will not be taken to be unlawful merely because it subsequently appears that the person apprehended did not commit the offence alleged. 
181	In George v Rockett, the High Court stated:
When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.
182	Belief must be distinguished from suspicion.  The facts which can reasonably ground a suspicion may be quite insufficient to reasonably ground a belief.  In George v Rockett, the High Court cited with approval the following definition of ‘suspicion’: ‘A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to “a slight opinion, but without sufficient evidence”’.
183	In Prior v Mole, Gordon J conveniently summarised what is required when ‘reasonable grounds’ for a belief are prescribed.  Her Honour was dealing with a different statute, but relevantly stated:
When a statute prescribes that there must be “reasonable grounds” for a state of mind, it requires the existence of facts sufficient to induce that state of mind in a reasonable person. It is an objective test. The question is not whether the relevant person thinks they have reasonable grounds.
In explaining the connection between the “reasonable grounds” and the requisite “belief”, this Court in George v Rockett stated:
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof.
Belief is not certainty. “Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture”. 
184	It follows from the foregoing that an arrest will not be lawful where the officer performing or directing it either does not believe the person being arrested has committed an indictable offence, or does not hold that belief on reasonable grounds.  The converse does not hold, however: it is not necessarily the case that an arrest will be lawful because the officer responsible holds the requisite belief on reasonable grounds.  An arrest may remain unlawful for various reasons. 
185	At common law, the power of arrest was given for the purpose of enabling the person arrested to be brought before a court as soon as reasonably practicable in order that he or she might be dealt with according to law, and an arrest for any other purpose — such as questioning a suspect or conducting enquiries — was considered unlawful.  Section 464A of the Crimes Act has altered this position.  Where a person is under lawful arrest, s 464A(2) provides that investigating officials may, within the reasonable time allowed by sub‑s (1), ‘question the person or carry out investigations in which the person participates in order to determine the involvement (if any) of the person in that offence’.
186	The common law continues to have application when considering whether a person arrested pursuant to the Crimes Act has been arrested for a lawful purpose.  Zaravinos v New South Wales concerned an arrest purportedly made pursuant to s 352(2) of the Crimes Act 1900 (NSW), which allowed a constable to apprehend a person whom he or she suspected with reasonable cause of having committed an offence ‘and take the person, and any property found upon the person, before an authorised Justice to be dealt with according to law’.  Bryson JA observed that s 352 did not purport to be a code or indicate an intention to displace general law principles relating to powers of arrest or to the exercise of discretionary powers conferred by statute.  His Honour continued:
Whether or not the power of arrest is seen as having its source only in s 352(2), or whether that subsection operates in the context of the common law of arrests which continues to have effect, the exercise of such power is subject to restrictions which affect the exercise of powers conferred for public purposes generally.  Such power must be exercised … for the purposes for which it was conferred.  Even if there are grounds, circumstances or good reasons which a reasonable person could regard as requiring that a person be arrested and taken before a justice if a prosecution is to be conducted in an effective manner, and even if on the face of things an arrest is permitted by s 352(2) in the sense that a constable in truth suspects the person arrested of having committed an offence, and there is reasonable cause for the constable so to suspect, there must be more: there must be an exercise of the discretion alluded to by the word “may”, and it must be an effectual exercise.  Literal fulfilment of s 352(2)(a) is not enough.
Justice Bryson found that the statutory requirement to take a person before an authorised justice corresponds to the common law relating to arrest and must be understood as indicating the only proper purpose for which an arrest may be carried out.
187	It has been held that there is no power to arrest  a person without warrant unless there is an intention to charge.  In Robinson, the High Court was considering s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’), which permits a police officer to arrest a person without warrant if they suspect on reasonable grounds that the person has committed an offence.  The LEPRA also allows a police officer to detain a person, who is under arrest, for the purposes of investigation subject to certain limitations.  Bell, Gageler, Gordon and Edelman JJ held that if, at the time of an arrest without warrant under s 99 of the LEPRA, the officer had not formed the intention to charge the arrested person, then the officer had no lawful power to arrest.  The majority stated:
In Bales v Parmeter, Jordan CJ provided a clear statement of the law in New South Wales: an arrest can only be for the purpose of taking the arrested person before a magistrate (or other authorised officer) to be dealt with according to law to answer a charge for an offence. An arrest merely for the purpose of asking questions or making investigations in order to see whether it would be proper or prudent to charge the arrested person with a crime is an arrest for an improper purpose and is unlawful. That straightforward, single criterion has been repeatedly cited with approval in New South Wales and elsewhere. In making that statement, Jordan CJ was expressing the effect of s 352 of the Crimes Act 1900 (NSW). Nothing done in LEPRA (in its original or amended form), or for that matter in any of the intervening legislative amendments which will be examined, has displaced that single criterion. 
188	For the following reasons, the statement of the High Court majority in Robinson and the remarks of Bryson JA in Zavarinos are applicable in the context of the arrest powers in the Crimes Act.
189	First, a statute which authorises a person’s detention must be strictly construed.  Section 457 provides that, if there is a power to arrest, it will be found in an enactment; it does not provide that the enactment in which that power is found codifies the power of arrest.  
190	Second, like the power once conferred by s 352 of the Crimes Act 1900 (NSW), the power in s 459 is an executive discretion conferred by statute on a public official.  It follows that it may be exercised only for the purpose for which it was conferred.  Unlike s 458(1), s 459(1) does not expressly state that a person apprehended without warrant must be taken before a bail justice or the Magistrates’ Court to be dealt with according to law.  However, it is not material that the language of s 458(1) is not repeated in the following section.  In Director of Public Prosecutions v Tran, this Court held, in the context of the Crimes Act, that ‘[a]ny arrest, whether by citizen or member of the police force, can only be made for the purpose of putting the person arrested before a court’.  Lasry J was there dealing with s 462A of the Crimes Act.  But as his Honour remarked in a footnote, the power of arrest referred to in that section ‘is clearly the power of arrest referred to in the earlier sections’.  The common law also still determines how a lawful arrest must be effected.
191	Thus if an arrest is made pursuant to s 459, the arresting officer must intend to take the arrested person before a magistrate (or other authorised officer) as soon as reasonably practicable to be dealt with according to law to answer a charge for that offence.  Further, the intention required at the time of arrest is an intention to charge, unless it emerges after the arrest that the circumstances do not justify the decision. 
The power to seize property incident to an arrest
192	It was common ground that if the police had the power to seize Aran’s iPhone XR, that power existed at common law pursuant to what is often called a ‘safety and evidence’ search. 
193	Counsel for Aran relied on the decision of Ghani.  Although that decision ultimately concerned the power of police to seize property without performing an arrest, in the course of his reasons, Lord Denning M.R. considered the circumstance where a man is lawfully arrested in his house, with or without warrant, for a serious offence.  His Lordship stated:
I take it to be settled law, without citing cases, that the officers are entitled to take any goods which they find in his possession or in his house which they reasonably believe to be material evidence in relation to the crime for which he is arrested or for which they enter. If in the course of their search they come upon any other goods which show him to be implicated in some other crime, they may take them provided they act reasonably and detain them no longer than is necessary.
194	In Reeves (a Pseudonym) v The Queen, the Court was concerned with the admissibility of a mobile phone that had been seized by police, purportedly under the common law power of seizure.  The Court stated:
At common law, the power to seize and take possession of articles at the time of arrest, or incidental to it, is set out in Field v Sullivan. Adopting the words of the Full Court of New Zealand, Macfarlan J (Cussen J agreeing) accepted that it was settled law that a constable who is legally authorised to arrest an accused person may, at the time of the arrest and as incident to it, seize and take possession of articles in possession of or under control of an accused person. In Field v Sullivan, the seizure did not, in fact, occur at precisely the same time as the arrest but before it. Macfarlan J said that no point was attempted to be made of this fact, but that even ‘if the power to seize be limited to where there is an actual arrest, regard must be had to physical exigencies and the seizure in this case was sufficiently close to the arrest to be fairly regarded as incidental to, and part of, the same operation as the arrest.’ In Levine v O’Keefe, a policewoman, sued for wrongful seizure of goods, argued that the goods were seized pursuant to common law. No arrest had been made at any stage. The Court recognised the existence of the common law right of seizure but held it did not apply in this case where there was no arrest, charge or search warrant in existence at the time of the arrest. 
195	The Court went on to observe that ‘no doubt has been cast over these authorities in the ninety‑odd intervening years’ since Field v Sullivan was decided in 1923.
196	Once a person has been lawfully arrested, a police officer has a right to search that person and take possession of property in circumstances where he or she reasonably believes the property may be connected with the crime for which the person has been arrested, or where the property might be used to cause injury or damage to the arrested person or others.  I do not interpret Lord Denning’s use of the word ‘material’ to mean that police must believe that the property may provide important or significant evidence of the crime.  In my view, it means no more than the police must reasonably believe the property may be connected with the crime, or afford evidence of the crime.  There must be a realistic basis for such a belief.  
Threat to kill and threat to inflict serious injury
197	The offences of threat to kill and threat to inflict serious injury are indictable offences created by statute.  It is not necessary to refer to the elements in any detail.  It is sufficient to note the following: the threat must be made ‘to another person’, relevantly here, FT.  The person must intend to threaten, not intend to carry out the threat.  The fact that the person threatened is unknown does not preclude a conviction.  A threat can be conditional, albeit there is a fine line between a hypothetical threat and a conditional threat.
Analysis
198	Before turning to the exercise required by s 138, I make the following observations.
199	The defence did not suggest that even if the arrest was lawful, the ongoing detention of Aran became unlawful at any point.  It was also not suggested that the continued detention of the iPhone XR, even if lawfully seized, became unlawful at any point while Aran was in custody, or was unlawful after Aran was released on the morning of 11 March.  All parties agreed that the critical focus must be on Vincent’s state of mind at the time he directed Aran’s arrest.  
200	In my view, the prosecution at times overstated or mischaracterised the defence arguments as to the true, or ulterior, purpose for Aran’s arrest.  The prosecution in oral argument referred to the alleged ulterior purpose as being ‘nefarious’ or ‘corrupt’.  This misstates the defence argument.  ‘Nefarious’ conduct is wicked or criminal.  It was not suggested that Vincent behaved in such a way.  Rather, counsel for Aran accepted that police were clearly concerned about the further information they received on 10 March, in circumstances where Aran was the subject of ongoing monitoring.  However, the defence submitted that Vincent recognised that he did not have a reasonable basis to arrest Aran, but went ahead and exceeded his lawful power.  His likely motive was based on a concern about what he knew, and a desire for police to speak with Aran and analyse any electronic device available to them.
Did Vincent hold a belief that Aran had committed the offence of threat to inflict serious injury or threat to kill?
201	It is convenient to commence with the evidence and any relevant factual findings.
202	Vincent’s role, at least since 28 September 2020, was to manage national security persons of interest within the SIU.  It was around this time that he first became aware that Aran was a person of interest.  He was not involved in the day‑to‑day management or monitoring of Aran.
203	On 10 March, but prior to Aran’s arrest, Vincent would or should have been aware that Aran had previously displayed radicalised behaviour, and that police familiar with the matter had an interest in obtaining evidence that might tend to prove that Aran had committed other offences, including Commonwealth terrorism offences.  Consistent with Manno’s diary note, Vincent was aware that a s 3E Commonwealth warrant was being considered on 10 March.  Vincent was aware that other SIU officers, including Reinke, were liaising with the JCTT.  Consistent with his note made at 4:55pm, Vincent was also aware that Sheehan, who was in charge of Counterterrorism, wanted police to take some kind of action or response on the night of 10 March, the details of which were yet to be determined.
204	I accept Vincent’s answer that his note stating ‘465 threats?’, made at the 4:55pm briefing, was consistent with him not being one hundred percent sure whether he had a basis to arrest Aran for a threat offence.  While ‘465’ refers to a search warrant, if Vincent was not sure he had a basis to apply for a search warrant, it follows that he had a similar state of mind as to any basis for arrest.  I accept that after he read the Cruse IR, his view firmed.  Whilst the Cruse IR contained no additional or more significant information than Vincent had received in the briefing, I accept his evidence that the briefing was quick; he was taking notes contemporaneously; and reading the Cruse IR would have confirmed or reinforced his understanding of the situation.  
205	Following the briefing and after reading the Cruse IR, Vincent understood that Aran had allegedly said to [REDACTED] FT, that he wants to travel overseas and if he is stopped from travelling, he will start stabbing people.  Vincent also knew that the threat had been relayed to police by MM, who police regarded as a reliable source.  He knew police had not spoken to FT on 10 March.  Vincent also knew that two or three days prior to 10 March, Aran had purchased a big knife.  Vincent was told by Cruse that on Aran’s account, he had purchased the knife for fishing (this account is also included in the Cruse IR), but Vincent was entitled to at least doubt this explanation.  He was certainly not bound to accept it.  He believed FT [REDACTED] was telling MM the truth.  
206	I move now to the 6:21pm briefing.  Vincent’s own note of this includes ‘if leaves address intercept.  Arrest re 459 – threats to inflict serious injury.  Search veh [vehicle] re control of weapons act’.  Vincent’s note then records that he spoke to Robinson, who is ‘happy/agrees with 459 arrest [indecipherable] re threats to inflict serious injury’.  Vincent agreed he was not taking notes contemporaneously at the briefing, but said ‘I would’ve filled it in contemporaneously, just after the briefing’.  It is unclear when Vincent completed his diary note concerning his 6:21pm briefing. Vincent maintained in evidence that at the time of the 6:21pm briefing, his state of mind was that Aran had committed the threat offence, and he could be arrested as soon as he was located.  Vincent claimed that he directed Team 2 to ‘arrest under 459 for threats to inflict serious injury, intercept the vehicle, intercept the accused as he’s leaving the address’.  
207	Team 2 all had clear, contemporaneous notes of what they were briefed to do at 6:21pm.  I find Team 2 were tasked to sit off the 8 Moira Way address, watch any comings and goings, but not approach the residence.  Any potential arrest was conditional on Aran entering the Mazda.  If that occurred, the officers were to search the vehicle and arrest Aran if the search yielded a weapon.  If no weapon was found, they were to contact Vincent for further instructions.  
208	Robinson’s notes do not record that he spoke to Vincent about being happy or in agreement with a ‘459 arrest’.  At 6:35pm, his notes record that he had a briefing with Vincent, who was to obtain two warrants — one ‘Control of Weapons’ and one ‘465 Evidence’.  In evidence, Robinson was asked about this entry.  He said there would have been more said than he recorded in his notes, and they were also going to send a team to sit off the address and ‘monitor’.  He said there was also a ‘clear understanding’ that if Aran left the address, they would ‘potentially be arresting at that stage’.  Robinson said that he believed at this point that Aran had committed an indictable offence, but he did not direct that he be arrested because they wanted time to obtain the search warrants.  He stated, ‘but we also didn’t want to lose track of Mr Sherani, so should he leave the address, then there potentially would be a decision made to arrest him at that point’.
209	In my view, the evidence of Robinson is more consistent with that of Team 2 than Vincent.  That is, if Aran left the address and went to enter his car, he was to be intercepted and his vehicle searched, and potentially arrested if a weapon was found.  Robinson repeated that the arrest was ‘potential’.  To the extent that there are differences between Vincent, Robinson and Team 2, I prefer the evidence of Team 2.  I do not accept that at 6:21pm,  Vincent instructed Team 2 to attend at 8 Moira Way and arrest Aran for the offence of threat to inflict serious injury. Vincent’s evidence is contradicted by the three officers, all of whom had detailed, consistent and contemporaneous notes of what they were briefed to do.  It makes little sense that if they had been sent to arrest Aran, they would instead sit off the address and wait to see if he tried to enter his car.  It may reasonably be expected that if Team 2 was being sent to arrest Aran, they would be told that.  I can see no logical operational reason to withhold that instruction, even if there may be an operational reason to delay the arrest.  
210	Further, when Aran did leave the address on foot, Team 2 radioed Vincent and sought instructions as to what they should do.  It is reasonable to conclude that if they had already been told to arrest Aran, they may still have notified Vincent that they were about to effect the arrest, as part of standard operational practice.  However, they would not have needed to ask Vincent what they should do.  All officers say they were told to arrest Aran for the offence of threat to kill, not threat to inflict serious injury.  This, too, is consistent with the direction to arrest being given for the first time after Aran left the house on foot, and not at the briefing.  Otherwise, I find that nothing ultimately turns on whether Aran was arrested for threat to kill or threat to inflict serious injury.  I note that no party sought to make anything of the difference.
211	Vincent gave the direction to arrest Aran for the offence of threat to kill at approximately 7:38pm, and Aran was then arrested by Team 2.  It seems other police officers on this night held the view that Aran should not be arrested, at least not prior to the execution of the search warrant. At 7:40pm,  Sheehan, who did not give evidence on the voir dire, requested that the officers hold off on the arrest.  Cruse relayed that instruction to Vincent.  Vincent said he recalled Sheehan telling him to wait and not arrest Aran, but he was unsure why and it was too late.  It follows that Sheehan’s direction cannot have influenced Vincent’s state of mind at the time he gave the direction.
212	The fact that Vincent did not instruct Team 2 to attend at 8 Moira Way and arrest Aran during the 6:21pm briefing does not mean that, when he finally issued the direction to arrest, Vincent did not subjectively believe Aran had committed the offence of threat to kill or threat to inflict serious injury.  The difficulty I have is that, given his evidence as to when he directed Aran’s arrest, which I do not accept, it is more difficult to infer what his state of mind was when he did direct Aran’s arrest.
213	In my view, little turns on whether a threat of this nature would be ultimately capable of being proved to the criminal standard.  Aran was threatening to inflict serious injury on unnamed persons if he could not go overseas.  The threat was conditional and was tied to Aran not being allowed to travel overseas.  Vincent had no information as to whether Aran could travel overseas, or had ever been prevented from travelling overseas.  FT, the person to whom the threat was made, was sufficiently concerned to report the threat to MM, who in turn relayed the threat to police. 
214	I do not place great weight on the submission that Vincent should have doubted the veracity of the threat relayed by MM, because FT was the source of that threat and had previously proven less than reliable.  It was not incumbent on Vincent to assess the credibility of FT on the afternoon of 10 March, nor practical for him to do so.  The alleged threat was new information, conveyed via a reliable source, which Vincent was entitled to regard seriously.  It is not reasonable to expect police officers, who learn of such a threat, to defer an arrest because Aran may not be serious.  It does not follow that because a near‑identical threat had been uttered earlier, this one must be hollow.  As Vincent reasonably said, that was not a risk he was prepared to take. 
215	 I am prepared to find that, subjectively, Vincent probably believed that Aran had committed the offence of threat to inflict serious injury or threat to kill once he had read the Cruse IR.  He continued to hold that belief at 7:38pm.  Vincent was entitled to regard the threat as serious on the information he had.  He was in the process of obtaining a s 465 search warrant based on the same information, and ‘threat to inflict serious injury’ is named as a suspected offence on the warrant.  Shortly before  7:38pm, the situation altered when Aran left the residence.  This may explain why Vincent gave the direction when he did, although I must be careful not to speculate, as Vincent did not give such evidence. 
Belief on reasonable grounds
216	I turn to the question of whether there were, objectively, ‘reasonable grounds’ for Vincent to hold such a belief.
217	At times, counsel for Aran overstated what is necessary for a belief to be held on reasonable grounds.  For example, he argued that FT’s history of recanting past alleged threats, said to be made by Aran, is relevant when considering whether, on an objective basis, the police ‘can conclude that an offence has been committed’.  All that is required is that the evidence objectively supports a reasonable belief; there is no requirement that the objective evidence must enable a conclusion that the offence has been committed.  Similarly, little turns on whether, as a matter of law, it could be proved that Aran intended FT would fear that he would carry out the threat, or was reckless as to whether or not FT would hold that fear, had the matter proceeded and been contested.
218	The judging of whether there were reasonable grounds for the relevant belief is not resolved by reference to the rules of evidence.  Hearsay evidence, including second‑hand hearsay, is an acceptable basis on which to form a reasonable belief for the purpose of an arrest.  A reasonable belief may be based on multiple sources of information.  A belief said to be based on information that is clearly highly doubtful or preposterous is less likely to be based on reasonable grounds, even if the information is not hearsay.  What matters is the quality of the material relied upon, and not whether it would ultimately be admissible in a criminal trial.
219	I find the following matters are all relevant to this question:
(a)	MM was fairly considered by police to be a reliable source of information;
(b)	The police were not obliged to disregard FT based on earlier information, or assess his credit;
(c)	The recent purchase by Aran of a knife is a significant matter in circumstances where the alleged threat is to ‘stab’;
(d)	The fact that Aran had claimed the knife was for fishing may or may not have been correct, but it did not rob the knife of its significance on the evening of 10 March.  The fact of other possibilities is not necessarily inconsistent with the existence of reasonable grounds;
(e)	The threat was conditional but serious;  
(f)	[REDACTED]; and 
(g)	Other information was relayed by MM during the course of the afternoon.  At 5:14pm, MM conveyed to police that FT said Aran regularly states he wants to hurt people, and is talking about it every day.  At 5:27pm, MM told police that FT had said Aran has stated it is permissible to kill non‑Muslims.  Whilst neither of these statements were threats, they reflected Aran’s current thinking and state of mind.
220	In my view, all this material would incline a reasonable mind towards accepting, rather than rejecting, the proposition that Aran had committed the offence of threat to inflict serious injury.  That is, he uttered the threat to FT, as relayed to police by MM.  Objectively, the information known by Vincent at the time he directed the arrest would lead to more than mere suspicion that Aran might have intended to make the threat.  Other possibilities existed: FT might have been exaggerating, or Aran might have been ‘mouthing off’.  However, those possibilities, which of themselves leave a great deal to supposition or conjecture, do not compel the conclusion that Vincent’s belief was not held on reasonable grounds.  
The purpose for the arrest
221	The defence relied on this ground as a discrete basis of unlawfulness or impropriety.  That is, even if Vincent held a belief on reasonable grounds that Aran had committed the offence of threat to inflict serious injury, that was not the true purpose for his arrest and therefore his arrest remained unlawful.  
222	Defence argued that the court could not be satisfied that Vincent intended to take Aran before a magistrate or bail justice as soon as practicable, or had an intention to charge him at the time of arrest, based largely on subsequent events.  The same subsequent events disclosed the true or ‘ulterior’ purpose for arresting Aran, which was variously expressed as wanting more information about him; wanting to investigate potential Commonwealth offences; and wanting to analyse any electronic devices available to police.  In making this argument, defence relied on the conduct of not only Vincent, but other police officers subsequent to the arrest.  However, it is Vincent’s state of mind that remains key, as he directed the arrest.  
223	The prosecution argued there was no evidence Aran was arrested for any ulterior purpose.  They also did not accept the premise that nothing was done after Aran was arrested in relation to the threat offence.  A search warrant was obtained and executed; Aran was interviewed; and Tuica said she would have obtained a statement within ‘a couple of days’ if the matter had not been taken over by the JCTT and subsequent events. 
224	In Robinson, it was uncontroversial that at the time the police constable arrested Mr Robinson, he had not decided to charge him with any offence.  The constable gave evidence that he ‘did not believe there was enough to charge him’, and the decision would depend on what Mr Robinson said in the interview.  Mr Robinson was released without charge after the interview, and the constable held the view that further evidence would need to be obtained.
225	Here, Vincent was not asked whether, at the time of Aran’s arrest, he had formed an intention to charge him with threat to inflict serious injury.  The fact that Aran was not later charged by Tuica does not mean Vincent lacked such an intention.  When cross‑examined, Vincent initially said his understanding of the purpose of an arrest ‘is to provide that person with a chance to give their version of events in interview, or to bring that person before a court, or to – yeah’.  Vincent was not asked what his purpose was in arresting Aran; counsel for Aran instead put to him, isn’t it the latter?  Vincent then gave evidence that he understood the purpose of an arrest is to bring the person before a court, although he never expressly said he arrested Aran for that purpose.  He understood that requires evidence.  He denied he had Aran arrested for any alternative purpose, such as to look for evidence of Commonwealth offences.  
226	At the time of arrest, Aran was deprived of his liberty.  He was informed by Hill that he was under arrest, and informed of the reason for his arrest.  The arrest was peaceable and there was no suggestion that excessive or improper force was used to effect the arrest.  In these ways, the arrest was lawful.  Once arrested, Aran was in custody within the meaning of s 464A(1) of the Crimes Act.  Every person taken into custody for an offence must be released (unconditionally or on bail), or brought before a bail justice or the Magistrates’ Court, within a reasonable time.
227	As set out earlier, s 464A(2) of the Crimes Act provides that investigating officials may, within a reasonable time, question the person or carry out investigations in which the person participates in order to determine the involvement (if any) of the person in that offence.  Subsection (4) lists a large number of matters — including the need to take any reasonably necessary preparatory steps and any other matters reasonably connected with the investigation of the offence — which may be considered in determining what constitutes a ‘reasonable time’.  Three points must be made.  First, s 464A permits the questioning of a suspect once that person is in lawful custody, but does not permit a person to be arrested without warrant for the sole purpose of questioning.  Second, such steps or investigations must be about ‘that offence’, being the offence for which the person is in custody.  Section 464A does not allow for a person to be held in custody for one offence, while police investigate a different offence or offences, or search for incriminating material generally.  Third, one needs to be cautious when looking at what occurred post‑arrest, and reasoning backwards from that conduct that the arrest was for a different or ulterior purpose, given that once a lawful arrest has been made, a police officer is entitled to question the person and carry out investigations etc. within a reasonable time.
228	The police were entitled to hold Aran in custody while they continued their investigations within a reasonable time.  In my view, this would permit police to hold Aran in custody while they executed the search warrants and obtained a statement from FT.  However, Vincent showed little interest in the need to obtain evidence from FT, being the person to whom the threat was allegedly made.  It is true Vincent was not the designated informant, however he was still very involved in the events of that night.  He was Tuica’s immediate superior. He knew, from reading the Cruse IR at around 5:20pm, that FT was willing to speak with police.  
229	An operational briefing was held at 10:05pm, prior to the execution of the search warrant.  According to Tuica’s notes, the briefing was with the JCTT and conducted by Vincent.  The evidence establishes that nothing was said by Vincent about the need to obtain a statement from FT about the alleged threat for which Aran was currently being detained.  Matters that were discussed, based on the evidence of the police officers present, included searching for hunting knives and knuckledusters; plans and/or documents for possible onshore attacks; and electronic devices belonging to Aran.  No officer was tasked with obtaining a statement from FT.
230	Following the briefing, at 11:16pm, Vincent telephoned FT to let him know Aran was in police custody, but did not ask FT anything about the alleged threat for which he had arrested Aran.  Nor did he indicate to FT that he needed to speak with him about things Aran may have said.  
231	[REDACTED].  FT and MC were both cooperative [REDACTED] and answered all questions asked of them by police.  Vincent did not seek to obtain a statement from FT, or make any arrangement for FT to attend on police at a later time for the purpose of making a statement.  No other police officer was tasked to take a statement from FT.  
232	Tuica’s conduct, as the designated informant, compounded the problem.  At the commencement of the record of interview, Aran is ‘put on tape’ and then the interview is suspended.  He is told that the reason for the suspension is so police can execute a search warrant at his home address.  Aran points out to Tuica that police already have his phone.  Tuica was present during the execution of the search warrant.  During the period of suspension, Tuica did not ensure a statement was taken from FT, or at a minimum, ensure FT was spoken to about the alleged threat.  
233	Once the interview resumes at 4:44am, few direct questions are asked about the alleged threat to kill or threat to inflict serious injury.  Aran is never asked about whether he made the alleged threat to [FT].  He is told the information about the threat came from the NSH [REDACTED].  At its highest, he is asked, at Questions 505‑506, whether he ever told anyone, [REDACTED], that he was going to stab people with the knife he purchased on Ebay.  The question is vague and cannot reasonably be said to be about the threat for which Aran was arrested.  He is asked a great deal about knives and about his religious beliefs, which are at best very indirectly relevant to whether he made the alleged threat.  At the end of the interview, Aran is released ‘pending summons’.  Whilst the phrase ‘pending summons’ is commonly used by police, what in fact occurs is that the person is released unconditionally, as provided for by s 464A(1)(a).  Aran was released unconditionally and the police retained his iPhone.
234	Tuica’s email, sent at 6:40am on 11 March, makes no reference to the need to take a statement from FT about the alleged threat.  If the threat offence for which he was arrested was being seriously investigated, it might reasonably be expected that the need to obtain a statement from FT would have been at least mentioned.  I have difficulty accepting Tuica’s evidence that she intended to take a statement from FT at any time after the interview. 
235	Finally, while I do not consider Biram’s evidence to be critical to the resolution of this issue, I did not accept his explanation as to why ‘brief’ appeared in his email in inverted commas.  A plain reading suggests the inverted commas are there to suggest no genuine brief was contemplated.  His explanation that he might have used inverted commas to indicate ‘brief’ was a shorthand for ‘brief of evidence’ lacked all credibility.
236	This was not a situation where it subsequently appeared or was found that the person apprehended did not commit the offence alleged, which would not render the arrest unlawful.  Rather, the subsequent events reveal police, including Vincent and Tuica, were not concerned to investigate the specific alleged threat for which Aran was arrested and in custody.  Neither of them seemed intent on charging Aran with threat to inflict serious injury, or bringing him before a court to be dealt with according to law for the offence of threat to inflict serious injury. 
237	In my view, whilst Vincent’s direction to arrest Aran may have been based on reasonable grounds, the subsequent conduct of Vincent reveals that the offence for which he arrested Aran was of no real interest to police.  If it had been, then Vincent would have taken a statement from FT later that night; or spoken to FT about the alleged threat and taken notes of what he said; or tasked another officer to take a statement from, or speak with, FT; or arranged for FT to attend the next day for the purpose of a statement.  Witness statements are routinely taken in the field.  FT was cooperative, and it would not have been a long or complicated statement to obtain.  A short statement as to the alleged threat was all that was needed, yet nothing was done.
238	So what was Vincent’s purpose in arresting Aran?  Drawing an inference is not straightforward.  He may have been generally concerned as to what Aran might do when he left the house, and did not want to lose sight of him.  He may not have had a considered, ulterior purpose.  I will return to this question when I deal with the balancing exercise.  Overall, the evidence, including the evidence of Vincent’s subsequent conduct, satisfies me that the purpose of the arrest was not to charge Aran with the specific offence of threat to inflict serious injury, or bring him before a court for that offence.  This renders the arrest unlawful.
Was the seizure of the mobile phone unlawful?
239	It follows that because the arrest was unlawful, the seizure of Aran’s iPhone XR was also unlawful.  However, this ground was relied on by defence as a discrete basis of unlawfulness.  I will briefly consider the question.  
240	The argument proceeded on the basis that the iPhone XR was seized at the time of arrest.  However, an interesting question arises here as to when Aran’s iPhone was seized, and by who.  In Reeves, the applicant’s phone was initially seized by AFP members as part of a safety search, which resulted in the AFP officers temporarily possessing the phone.  However, the Court was of the view that this temporary custody was undertaken for non‑investigative reasons, and tended to the view that the seizure of the mobile phone for evidentiary purposes was in fact effected by the informant at the conclusion of the record of interview.  It was at this time that the applicant’s mobile phone passed from being held merely for safe‑keeping to becoming an item of evidentiary interest.
241	Here, the iPhone XR was first seized by Hill as part of a ‘safety and evidence’ search.  However, Hill had no notion of what evidence of a threat might have been on the phone, and had simply been directed by Vincent to seize whatever possessions Aran had with him.  Vincent was not the designated informant and stated that he was not involved in any decision as to what should be done with Aran’s phone after it was seized.  Tuica was the informant.  Tuica’s notes at 5:23am on 11 March state: ‘Phone of Sherani seized and property sheet updated accordingly.  Sherani to be released ITS’.  This suggests the phone was seized at the conclusion of the record of interview.  Applying the reasoning found in Reeves to this application, it was effectively Tuica’s decision to seize the phone for evidentiary purposes at the conclusion of the record of interview, and before releasing Aran unconditionally.  In her letter of 9 June, Tuica herself writes that ‘post-arrest and following his record of interview, Sherani’s mobile phone was seized.’
242	 In circumstances where police had not taken a statement from FT, it is difficult to see how the phone could provide ‘material evidence’ of the specific threat said to justify the arrest.  I do not accept that the phone would only be capable of providing relevant evidence if Aran had filmed himself making the threat, but any material on the phone of evidentiary significance would be indirect and supportive at best.  The direct and best evidence must come from FT.
243	During the interview, Tuica seems confused about the status of Aran’s mobile phone.  At Question 614, Aran is told that ‘all of the devices are going to be downloaded’. Tuica does not draw any distinction between the iPhone, which was not seized pursuant to warrant, and the other electronic devices, which were.  At Question 635, she said that they need to take ‘the items’ in front of the Magistrate, and ‘only after that, we are able to download the content’.  She was clearly referring to the contents of the iPhone, but seemed to think police could retain the phone because it was one of the items seized pursuant to the search warrant. Towards the end of the record of interview, at Question 614‑5, Chirila tells Aran that ‘all the devices are going to be downloaded and analysed’, and asks if there is anything on the devices that is going to make them go, ‘wow, what’s going on here’.  
244	In her email summary of the record of interview, sent to various officers including Vincent at 6:40am on 11 March, Tuica included that Aran ‘denied threatening to stab people or commit jihad if he wasn’t allowed to travel’.  Aran did not deny that because he was never asked about it.  In her letter dated 9 June 2021, recommending the brief for non‑authorisation, Tuica stated that ‘preliminary inspection of the electronic devices at this time failed to identify any other offending’.  The reference to ‘this time’ must refer to 10 March.  In my view, Tuica’s decision to seize Aran’s iPhone appears to have been motivated by a general desire to search the phone, as there may be evidence of offending on the device, including unknown offending. Biram, troublingly, also seemed to think police could retain the iPhone and assess the downloads ‘holistically’ for the general purpose of their investigation and records.  Police officers cannot arrest a person without a warrant for a specific offence, seize their mobile phone as an incident of that arrest, and then retain the phone while they look for information that bears no relationship to the charge for which the arrest was made.
245	It also appears, based on what Tuica said during the record of interview, that she thought the phone had been seized pursuant to a search warrant.  She refers to ‘devices’, and does not seem to recognise that the iPhone XR was seized pursuant to common law and not pursuant to a warrant.  If that was her state of mind, then she would not have independently considered whether she had a lawful basis to seize and retain Aran’s iPhone.  Whilst it is not necessary to finally decide this question given the way the matter was argued,  I find it is likely that the iPhone XR was unlawfully seized by Tuica.  
246	Insofar as Vincent’s state of mind is concerned, it seems he did not consider the question of what evidence might be on the iPhone or regard it as his role to do so.
Was the evidence seized ‘in consequence of an impropriety or contravention of Australian law’?
247	The question of whether a causative link existed was not in dispute.  Broadly speaking, the ‘but for’ argument went as follows:  but for the unlawful arrest of Aran on 10 March, the police would not have seized and retained Aran’s iPhone XR.  The seized phone was always going to be analysed.  Further information was received on 13 March, which led members of the JCTT to examine the contents of the phone.  Having viewed material on the iPhone, including the videos showing bushfires being lit, the AFP obtained a s 3E search warrant.  On 14 March, they executed the search warrant on Victoria Police and seized the iPhone.  The search warrant was lawfully obtained, however, but for Aran’s unlawful arrest on 10 March, the iPhone would not have been seized or examined.  In that way, the evidence on the iPhone XR was obtained in consequence of the 10 March unlawful arrest.  Dealing with 17 March, the argument was that but for all these events, which have at their root the unlawful arrest of Aran, the AFP would not have the iPhone XR, and it was the viewing of the material on that phone that led the AFP to obtain further warrants and arrest both Ari and Aran on 17 March.
248	The prosecution conceded that if the arrest was unlawful or improper, the evidence sought to be excluded was obtained in consequence of that illegality or impropriety.  The concession was made by senior counsel and accepted for the purposes of argument.  In such circumstances, I am reluctant to disturb that concession.  However, as noted earlier, I doubt it was well made so far as the evidence generated on 17 March is concerned, and for the following reasons.
249	It is worth noting that s 138 does not enact the doctrine that prevailed at least for a period in the United States, sometimes referred to as the ‘fruit of the poisoned tree’ doctrine, and whereby evidence that was ‘fruit’ of an illegality was necessarily excluded unless is was derived ‘by means sufficiently distinguishable to be purged of its primary taint’.  Instead, evidence that falls within s 138(1)(b) is subject to a separate application of the balancing test required by s 138(1), including a consideration of the matters found in s 138(3).  
250	Once the AFP arrived on 17 March and sought to arrest Aran, he fled.  For approximately two hours, he evaded police.  During this time, he purchased a knife and recorded videos of himself brandishing the knife while pledging allegiance to IS and expressing a desire to engage in violent jihad.  The causal link must be that if Aran had not been arrested on 10 March, the AFP would not have viewed the material on his phone, and arrested him on 17 March.  If the AFP had not sought to arrest Aran, he would not have fled arrest, purchased a knife and recorded the videos.  In my view, it is stretching the ‘but for’ test past breaking point to suggest that but for Aran’s arrest on 10 March, he would not have engaged in this conduct when police went to arrest him on 17 March.  In my view, no logical causal link exists between Aran’s unlawful arrest on 10 March, and his support of IS and desire to engage in violent jihad on 17 March.  It was the latter that caused him to commit the acts he did on 17 March, and the latter was not a consequence of the former.  
251	However, given the prosecution’s concession, fairness dictates that I treat the evidence obtained on 17 March as evidence obtained ‘in consequence’ of an impropriety or illegality, as the defence have not had an opportunity to address any contrary argument.  Thus despite my misgivings, I will do so.
Should the evidence be excluded?
252	Before turning to the factors contained in s 138(3), it is convenient to deal with two matters.  
253	The first is the need to make a judgment about each piece of evidence.  In Kadir v The Queen, the applicant, a greyhound trainer, was charged with acts of serious animal cruelty relating to the use of ‘live‑baiting’ in training.  Ms Lynch, acting on behalf of an animal welfare company, filmed the practice in breach of the Surveillance Devices Act 2007 (NSW) (‘the surveillance evidence’).  The material was provided to the RSPCA, who then obtained and executed a search warrant at the trainer’s property (‘the search warrant evidence’).  Ms Lynch then attended the property on two occasions and engaged the applicant in conversation, during which he made certain admissions (‘the admissions evidence’).  The High Court stated:
Self-evidently, factor (a), the probative value of the evidence, and factor (b), the importance of the evidence in the proceeding, cannot be picked up from findings made with respect to the surveillance evidence and applied to the search warrant evidence or the admissions. None of the s 138(3) factors can be considered in isolation. Evidence may possess high probative value but not be important in the proceeding in a case in which other equally probative evidence is available to the prosecution. In this case, the importance of the search warrant evidence, and, in Mr Kadir’s case, the admissions, is greater by reason of the exclusion of the surveillance evidence. Moreover, the weighting of the factors that are concerned with the impropriety or illegality to the balancing of the public interests may differ as between the surveillance evidence, the search warrant evidence and the admissions.
254	In Slater (a Pseudonym) v The Queen, the Court stated:
More generally, there is a judgment to be made about each piece of evidence which satisfies the test in  s 138(1)(b) by having been obtained in consequence of a particular impropriety or contravention, and it is not necessary that the outcome of the balancing exercise be the same in respect of every piece of evidence. As the connection becomes more tenuous, and evidence is obtained through lawful means, in spite of that connection, the various factors weighing in the public interest will not necessarily remain constant.
Common sense must dictate what is meant by ‘each piece of evidence’ in a particular case.
255	The second is the strength of the causal link.  If the causal relationship is distant or tenuous, then the public interest is in deterring the means by which the evidence was obtained may be more likely to be outweighed by the public interest in admitting probative evidence. 
256	There was some discussion about the status of the iPhone 7.  Given the iPhone 7 was with Aran at the time he was finally arrested on 17 March, it was not seized pursuant to warrant, but rather pursuant to a common law ‘safety and evidence’ search.  Defence conceded that it was likely that the common law power justified the seizure of this phone at the time of Aran’s arrest.  However, they argued that the reason for the arrest on 17 March was based on the analysis of the iPhone XR, which was seized unlawfully.  Defence noted that the causal connection was not in dispute.
257	Overall, all parties proceeded on an ‘all or nothing’ basis and did not distinguish between the pieces of evidence sought to be excluded.  However, in my view, the disputed evidence really falls into two categories:  the iPhone XR material, and the iPhone 7 material.  Within the iPhone XR material is the ‘bushfire video’ evidence and the ‘extremist material’ evidence.  The iPhone 7 evidence forms the basis of Charge Four.  
258	The material incriminating Ari, being the material found on his iPhone X and Apple Laptop, received scant attention.  It seems police had formed the view that Ari was the one filming Aran lighting a bushfire, so but for the police viewing that video, which they would not have seen if they had not unlawfully arrested Aran, Ari’s electronic devices would not have been seized on 17 March. In any event, the causal link between the unlawful arrest of Aran, and the seizing of Ari’s iPhone X and his Apple computer, has been conceded by the prosecution, who did not seek to differentiate between the strength of any of the causal links.  Therefore, I treat this material as part of the iPhone XR material.
259	In my view, the causal link between the unlawful arrest and the obtaining of the iPhone XR is reasonably strong.  While the AFP properly obtained a lawful search warrant when they learned what was on the phone, they would not have been able to view the contents of the phone if it had not been seized on 10 March.  The obtaining of the s 3E warrant by the JCTT on 14 March, pursuant to which the iPhone XR was lawfully seized, does not weaken the causal connection.  No party suggested it did.  The prosecution did not submit the iPhone XR was, at that point, seized by a different investigative body who had no knowledge of the earlier contravention.  In the circumstances, there is no basis to meaningfully distinguish between the AFP and Victoria Police.  There is no evidence as to whether the AFP believed the phone was lawfully in possession of Victoria Police, or turned their mind to that question.
260	The causal link between the unlawful arrest and the evidence created on 17 March, accepting such a causal link exists, is extremely tenuous for the reasons already discussed.  
261	I move now to a consideration of the factors set out in s 138(3)(a)–(h).
(a) the probative value of the evidence
262	The probative value of the evidence found on the iPhone XR is high.  The bushfire videos, and other data obtained from the iPhone XR, such as location data and Apple Health data, is highly probative of the offence of attempt to engage in a terrorist act.  The police also located electronic editions of extremist publications.  They had already identified Aran as the user of Telegram account ‘@SalafKurdi’ prior to 10 March, and evidence of ‘chats’ with others who share his extremist ideology was located on the iPhone XR.
263	The probative value of the evidence found on the iPhone 7 is also high, as the videos found on that phone depict Aran swearing allegiance to the ‘Islamic State of Iraq and Syria’, and stating his desire to engage in violent jihad.  
(b) the importance of the evidence in the proceeding
264	The evidence is very important to the prosecution.  In written submissions, they stated that ‘its exclusion would effectively eliminate the prosecution case’. Without the material found on the iPhone XR, Charges Two and Three would most likely not proceed.  As to Charge One, the online user history on the Acer laptop, which was validly seized pursuant to warrant, shows the user accessed a small quantity of IS material, which alone would be unlikely to found a charge.  It seems that the bulk of the material relied upon in support of Charge One is found on the iPhone XR.  All the material incriminating Ari is found on his iPhone X and Apple laptop, which were seized pursuant to warrant on 17 March.  The evidence found on the iPhone 7 is essential to Charge Four.  Without it, the prosecution would be left with evidence that Aran purchased a knife and ran from police.  Such evidence may support different charges, but could not realistically found a charge of doing an act in preparation for a terrorist act.
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject‑matter of the proceeding
265	The offences with which the accused are charged are very serious offences. The predominant view in the authorities is that the public interest in the conviction and punishment of those guilty of crimes is entitled to greater weight in the case of crimes of greater gravity.
266	The defence argued that while the nature of the relevant offences is grave, these are not the most serious examples of terrorism offences.  In my view, factor (c) directs attention to the nature of the offence, and not whether it is a serious or less serious example of the offence.  However arguably, the phrase ‘the nature of the subject‑matter of the proceeding’ permits examination of the latter.  Assuming it does, in my view it is not correct to characterise these offences as less serious examples of terrorism offences.  Lighting a bushfire in February in Australia, with the intention of causing as much damage as possible to property and life, is a serious crime.  The fact that the fires were fairly rapidly detected and extinguished does not detract from the grave nature of what was attempted.  Being a member of IS is intrinsically serious, given the organisation’s stated aims and beliefs, including death to ‘non‑believers’.  The prosecution submission that all charges are examples of ‘extremely serious terrorism offending’ does not, in my view, apply to Charge Four.  This is the least grave of the charges, and is not an extremely serious example of doing an act in preparation for a terrorist act.  
(d) the gravity of the impropriety or contravention and (e) whether the impropriety or contravention was deliberate or reckless
267	These two factors overlap with each other and with factor (h).  The court must have regard to the specific conduct that constitutes the impropriety or contravention.  The bona fides of the law enforcement officers, including their subjective belief, is relevant when assessing the gravity of their contraventions.  In this way, factors (d) and (e) overlap substantially, because when considering whether the conduct was deliberate or reckless, the focus is on the mental state of the officer responsible.  
268	Arresting a person for an unlawful or improper purpose is a grave contravention of the powers entrusted to police.  Arresting a person is a serious matter.  An unlawful arrest constitutes an assault on the person and the false imprisonment of that person.  As a matter of public policy, it is essential that the power to arrest without warrant is understood and properly exercised by those entrusted to exercise the power. 
269	Here, it is somewhat difficult to identify Vincent’s state of mind.  Vincent gave evidence that he understood the purpose for which an arrest without warrant may be made.  While his first answer suggested perhaps he did not, I act on the basis that he did.  It follows that he was not confused or uncertain about the scope of the power to arrest without warrant.  He reasonably believed Aran had committed the threat offence and was lawfully entitled to arrest him.  However, the purpose of the arrest, to be inferred from Vincent’s later action — or inaction — was not to charge him or bring him before a court to be dealt with according to law.  I find this inaction was deliberate, in the sense he chose to do nothing consistent with the lawful purpose of arrest.  Nor did he direct Tuica to do so.  However, I do not find that Vincent deliberately did not speak with FT because it might have proved unhelpful.  In the event that FT did not confirm the threat, the arrest would have probably nonetheless remained lawful pursuant to s 464(1) of the Crimes Act.
270	In evidence, Vincent stated that ‘there were serious concerns of the safety of the community that the accused was going to start stabbing random members of the public.’  He said it was his experience that in managing national security persons of interest, assessments can ‘change quite rapidly’ and that they now had ‘new information saying we have a serious concern and he’s made these threats’.  
271	An examination of the material shows this was a widely held concern amongst police on this afternoon.  Team 2 were sent to ‘sit off’ 8 Moira Way, and this of itself reflects a level of concern amongst police as to what Aran might do.  Robinson gave evidence that because of the threat relayed by MM, they were concerned Aran would ‘injure or kill people here in Australia’ and they ‘wouldn’t want to lose track of him’.  Tuica stated that at the 5:00pm briefing, it was relayed to them that there were concerns Aran would potentially attack members of the public.  Nibloe’s notes of the same briefing record ‘concerns re escalating/violence/weapons’. MM contacted police after his initial report on 10 March, conveying further concerns of FT, including that Aran was very angry; regularly states that he wants to hurt people; and has stated it is permissible to kill non‑Muslims.  Hill stated that at the 6:21pm briefing, they were told by Vincent that there was a concern Aran ‘might do something’.  The affidavit in support of the search warrant, whilst not prepared or signed by Vincent, states: ‘Investigators also fear that due to the comments made, Sherani may intent [sic] to stab members of the public and commit an on‑shore act of religiously motivated violence’.  In her email of 11 March, composed after Aran’s interview and release, Tuica notes that ‘it appears that [Aran] is not an imminent threat for our national security and not an immediate safety risk to his family or other members of the public’.  This is also consistent with police being concerned as to what Aran might do and what risk he posed on 10 March.
272	Team 2 did not have the skills or capacity to undertake active surveillance of Aran.  When Aran left the residence on foot, Vincent was faced with losing sight of a potential terrorist who might be both armed with a knife and intending to stab people.  In my view, having regard to all the material, I find it likely that Vincent’s action, when he directed the arrest, was motivated by a fear or genuine concern as to what Aran might do.  While that may be a good reason which a reasonable person would consider requires an arrest, the law insists that the power of arrest without warrant cannot be used for such purposes.  However, this places the contravention toward the less serious end of the spectrum.  
273	I am not satisfied that Vincent had a deliberate, calculated ulterior purpose when he directed Aran’s arrest.  I do not conclude that he arrested Aran because he wanted more information about him, or wanted to investigate Commonwealth offences.  In my view, the evidence does not support such an inference.  By this time, he was already in the process of obtaining search warrants, which would lawfully allow police to seize and examine Aran’s devices.  Vincent was not seeking to gain any real advantage or benefit that could not be obtained lawfully.  I accept it is likely that Vincent was concerned Aran would commit Commonwealth offences, but I do not find it likely that he wanted to investigate Aran for Commonwealth offences at the time he directed his arrest.  The JCTT were already involved.  There is no suggestion anyone from the JCTT wanted Aran arrested, or that Vincent directed Aran’s arrest at their behest; indeed Sheehan — who was head of  Counterterrorism — tried to  call off the arrest.  
274	Vincent’s state of mind concerning the seizure of the phone may fairly be described as negligent, in that he failed to take proper care over, or properly consider, whether the iPhone XR may or may not contain evidence of the threat.  I do not find he deliberately seized the phone knowing it would not contain evidence of the threat.  Nor do I find he was reckless in the sense that he turned his mind to the fact that he might be seizing the phone unlawfully but seized it anyway, or had a ‘don’t care’ attitude.  Rather, it seems that beyond seizing the phone under common law as ‘potential evidence’, he gave it no real thought, as he was not the informant.  I regard such a mindset as still a serious departure of what is expected of a police officer, and weighing in favour of exclusion.
275	Vincent alone made the decision to arrest Aran. He did not prepare or swear the affidavit in support.  He did not interview Aran, or demand without power that Aran provide his PIN code.  In those circumstances, I do not consider it is appropriate to view the unlawful arrest as part of a ‘course of related misconduct’, and use that to elevate the gravity of the contravention.  I am not dealing here with a common or widespread practice, but rather a specific factual scenario.
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights
276	The right to liberty is protected in Article 9 of the ICCPR.  Article 9 states:
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
…
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
277	This is a relevant factor weighing in favour of exclusion.  While I would not characterise the arrest as arbitrary, it was nonetheless not made for a proper or lawful purpose.  
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention
278	In my view, no meaningful proceeding or action is likely to be taken in relation to the impropriety or contravention.  If the action is disowned by those in higher authority and appropriate action is taken, the case for exclusion is significantly weakened.  However based on the evidence I have read and heard, no police officer accepts that either they personally, or any of their colleagues, did anything wrong on this day.  Vincent continues to insist that he directed Team 2 to arrest Aran during the 6:21pm briefing, a version which I have already found lacks credibility.
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law
279	Defence argued this factor must be assessed at the point in time Aran was walking away from his home.  At that point, police had no lawful ability to seize his mobile phone.  Factually, I accept this is correct.
280	However, in my view, factor (h) requires the court to inquire more broadly as to whether it would have been difficult to lawfully obtain the evidence.  The question is not merely hypothetical here.  Police were in possession of considerable intelligence and information concerning Aran.  Search warrants permitting the seizure and examination of his electronic devices, including his mobile phone, were hours away from being obtained.  Indeed, had Aran been home at the time the warrant was executed (and on his account, he had only left the house to attend the gym) his iPhone XR would have been lawfully seized pursuant to warrant.  There is a suggestion that Commonwealth warrants were contemplated and may have been used, although there is no cogent evidence about this and I place no weight on it.  The phone itself could also have been lawfully seized if police had obtained a further warrant once Aran was in custody.  This is not a case where the actions of the police could never be lawful, but rather a case where the actions of the police could readily be lawful pursuant to a valid search warrant.  That is, it would not have been difficult for police to lawfully obtain the iPhone XR.  On balance, I consider this factor to be a neutral consideration.
281	The application of factor (h) is more complicated when dealing with the iPhone 7.  The causal connection between the unlawful arrest and the evidence is very tenuous.  The evidence was created by Aran after police attempted to arrest him on 17 March.  The actions of police on 17 March were lawful.  In such circumstances, it is difficult to judge ‘the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law’.  On one view, the answer is that it could not have been obtained as it would not have been created.  However, I have reached the conclusion, largely due to the very tenuous nature of the causal connection, that this factor is neutral as concerns the iPhone 7.
Conclusion as to admissibility
282	It is necessary, having taken all these matters into account, to balance the competing considerations.  The burden is on the prosecution to persuade me that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in consequence of an arrest that was not made for a lawful purpose.  
283	This is not a situation where, absent the unlawful arrest of Aran on 10 March, Aran and Ari would never have come to police attention.  They were both national security persons of interest, particularly Aran.  A search warrant was obtained on 10 March, allowing police to seize all of Aran’s electronic devices.  The videos recording him allegedly lighting the two bushfires already existed on the iPhone XR, as did the extremist material.  A reliable [REDACTED] source, MM, was relaying information that was leading to increased police interest and concern as to what Aran might do.  The JCTT were already engaged.  That is not to say that I find the police would have obtained this material at some point in any event; that is not a conclusion that is open on the evidence, nor one I reach.  However, this is not a case where unlawful police conduct triggered police interest in a person who would otherwise have gone unnoticed.
284	As concerns the iPhone 7 material only, the tenuous causal link between the contravention and the obtaining of the evidence is a matter that weighs in favour of admitting the evidence.  
285	The probative value of the evidence and the importance of the evidence in the proceeding both weigh heavily in favour of admission of the evidence.  Without the evidence obtained from Aran’s iPhone XR, and Ari’s iPhone X and Apple laptop, Charges One, Two and Three almost certainly could not proceed.  Without the evidence obtained from the iPhone 7, Charge Four would fail.
286	The seriousness of the charges also weighs in favour of admission.  Terrorism offences are objectively very serious and place all members of society at risk.  There is a very considerable and legitimate public interest in the prosecution and conviction of persons who commit terrorism offences in Australia.  
287	As I have already observed, arresting a person for an unlawful purpose is a serious misuse of police powers.  As stated by Kourakis CJ, Blue and Stanley JJ in R v Phong Hoang Nguyen, ‘it is of great importance that police officers entrusted with powers which abrogate fundamental liberties pay close attention to the conditions on which their lawful exercise depends’.  The common law continues to inform the balancing exercise required by s 138(1).  The foundation of the common law discretion lies in protecting the individual from improper conduct and illegality by police; the right of citizens to insist that those who enforce the law understand and respect it; and the desirability of discouraging police from breaking the law.  Approached in this way, the gravity of the contravention weighs in favour of exclusion.  Vincent’s mindset when the phone was seized as an incident of the arrest, which I have characterised as negligent, also weighs in favour of exclusion. 
288	However, whilst I have concluded that the purpose of Aran’s arrest was not lawful, I have not concluded the action was deliberately taken for any of the ulterior purposes suggested by the defence.  Nor do I find that there was any deliberate cutting of corners by police, or a premeditated decision to arrest Aran otherwise than for the purpose of bringing him before a court. In my view, the purpose was unlawful but motivated by fear or concern for the general public.  Given this conclusion, the seriousness of the contravention is diminished and the public interest in excluding the evidence is reduced.  One needs only to reverse the scenario — an arrest was not directed, the police lose sight of Aran and he goes on to randomly stab members of the community — to explain why that is so.  While the ends should not be allowed to justify the means, the motivation for Vincent’s actions is relevant when assessing the gravity of his conduct on this night.  Overall, the conduct of Vincent still weighs in favour of excluding the evidence, but the weight attributed to this factor is reduced in the circumstances.
289	The rights of citizens to be free from unlawful arrest is of such importance that it is enshrined in the ICCPR.  Factor (f) also counts against admission of the evidence.
290	There is no suggestion that anyone at Victoria Police or the JCTT believes that the arrest of Aran was made for an unlawful purpose. This is troubling, as police officers are expected to understand the lawful limits of their powers, and it might be hoped they were able to recognise, at least with hindsight, when they had exceeded those limits.  If the arrest of a person for an unlawful purpose does not impact the ultimate prosecution, then such conduct is more likely to continue.  No other proceeding, such as a disciplinary proceeding, is contemplated.  No evidence was adduced by the prosecution to suggest any internal process or procedure had been, or would be, engaged.  Factor (g) also counts against the admission of the evidence.  
291	I have analysed the weight to be afforded to factor (h) above and I will not repeat that analysis.  For the reasons given, the factor does not lend itself to a simple judgment in the circumstances of this application, but on balance, I assessed the factor as neutral.
292	The relevant factors here do not inexorably point to a conclusion.  I find they are quite finely balanced.  However, the factors that weigh in favour of admissibility are significant.  In particular, the probative value and importance of the evidence; the public interest in prosecuting and convicting persons who commit serious terrorism offences; and the fact that while the arrest was unlawful, it was not done to obtain an unfair advantage.  The conduct of the police did not provoke criminal activity, entrap a person or deprive a person of their fundamental right to silence.  I have ultimately reached the view that, on balance, the respondent has satisfied me that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.  
293	The application is therefore refused.
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