Defence lawyer wanted Islamic State member’s trial aborted because of ‘unduly gruesome’ warning to jury
SA’s first terrorism trial was almost aborted before it began because of an “inaccurate and unduly gruesome” warning that jurors would see severed heads in IS propaganda videos.
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SOUTH Australia’s first terrorism trial was almost aborted before it began because of an “inaccurate and unduly gruesome” warning that jurors would see severed heads in Islamic State propaganda videos.
The Advertiser can now reveal Justice David Peek’s opening address in the case of Zainab Abdirahman-Khalif sparked an immediate application for a mistrial.
Defence barrister Bill Boucaut SC said Justice Peek had “gone too far” when speaking to the full panel of potential jurors about evidence to be shown at trial.
He said they should not have been told those selected for duty would see the bodies of “real people” that could not be “dismissed” like a movie or video game.
“My application is that Your Honour discharge the jury … (the warning) is inaccurate and unduly gruesome,” he said.
Prosecutor Chris Winneke SC dubbed the warning “fulsome” – but also conceded no severed heads would be shown during the trial.
“One will see the aftermath of executions, there’s no question about that, but you do not see severed heads because what we have sought to do is remove them from the videos,” he said.
“Ultimately, what Your Honour has said is a fairly fulsome description of the material and, in some respects, it may overstate some of what this material actually says.”
Justice Peek, however, declined to order a mistrial.
“I rather thought I saw certain things, but I could be wrong,” he said.
On Monday, Abdirahman-Khalif, 23, was found guilty of one count of deliberately and intentionally being a member of IS between 2016 and 2017.
She now faces a maximum 10-year jail term, but her lawyers have already flagged they will file an appeal against her conviction.
Abdirahman-Khalif’s trial began on August 28, following several weeks of legal argument during which Justice Peek and Mr Boucaut had several heated exchanges.
One exchange was sparked when the barrister said a certain document would not be ready until 1pm that day.
Justice Peek was critical and asked why Mr Boucaut thought such a delay would be acceptable.
The barrister reminded His Honour he had, days before, set the 1pm deadline himself and offered to point out that section of the transcript.
Following a subsequent exchange, Mr Boucaut asked Justice Peek not to raise his voice at him.
In SA, juries are selected from the jury panel – a group of people summonsed to appear in court and who, for the next calendar month, can be selected to hear one or multiple cases.
Justice Peek’s August 28 warning was given in the presence of the entire panel, before the final 13-person jury was selected.
In his mistrial application, Mr Boucaut said the case should be postponed until September, after a new jury pool had been gathered.
“This is something that’s been overemphasised in an incorrect fashion, the gruesome nature of this material,” he said.
“Your Honour goes on to say ‘real people’ are involved here … that’s an inference the jury can no doubt draw but there’s no evidence that it is real people.”
Justice Peek was unmoved.
“So this is all stage-managed, is it? This is the first time there’s been any suggestion this is not real,” he replied.
Mr Boucaut said the warning had “created the impression” Abdirahman-Khalif was “somehow complicit in the violent acts that are depicted” in the IS propaganda.
“My point is this: by saying that, it reinforces what Your Honour said earlier about over-egging the pudding,” he said.
(“It is) misstating what the position is in respect to the videos that will be put before them.”
Justice Peek said he could “only go on the materials” and suggested there may be other videos.
Mr Winneke said that was not the case – prompting Justice Peek to respond “oh” – but argued the trial should still proceed.
“The effect of Your Honour’s explanation to the jury panel is correct … the jury will hear evidence that there are depictions of severed heads on bodies,” he said.
It will be apparent to the jury what they can see … it’s not a basis to dismiss the jury.”
Justice Peek agreed and the trial went ahead, concluding with Abdirahman-Khalif’s conviction on Monday.