R v G
| Jurisdiction | New Zealand |
| Judge | Downs J |
| Judgment Date | 01 November 2022 |
| Neutral Citation | [2022] NZHC 2820 |
| Docket Number | CRI-2021-044-002849 |
| Court | High Court |
[2022] NZHC 2820
Downs J
CRI-2021-044-002849
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
ITE KŌTI MATUA O AOTEAROA
TAMAKI MAKAURAU ROHE
Criminal Evidence — application to have evidence excluded on the basis it was improperly obtained — undercover police officer — entrapment — incitement — Evidence Act 2006
HDL Steele and JD Dalton for Crown
AC Cresswell and SJ Galler for Defendant
(Pre-trial hearing - entrapment)
This judgment was delivered by me on Tuesday, 1 November 2022 at 11 am.
Att/Deputy Registrar
A. Hodgson
Deputy Registrar
High Court
This judgment attempts to address, under pressure of time, the difficult subject of entrapment. G is charged with serious offences, including a charge of threatening to kill members of the public in support of Islamic State. G contends the incriminating evidence in relation to this charge — communications with an undercover Police officer — is the product of entrapment and should be excluded as improperly obtained. 1
G's trial begins 14 November 2022.
G was born 21 December 2001. By 2018, he was actively researching Islamic State on the web and more particularly, videos and articles that promoted it. In 2020, G used a Google cloud data account to create a folder system to store material sourced from the web. Titles of the 73 folders accurately record their content, for example, “3D Firearms Manufacture”, “Articles on Terror”, “Based Terror attacks”, “Far right Propaganda”, “ISIS Propaganda”, “Potential recruits for the Operation”, “Bomb Instructions”, and “Knives and Knife combat training”. Schedule A to this judgment contains a list of all of the folders.
G saved 169 diary entries across these folders. Some record apparent fascination with mass killings. Others imply the defendant contemplated violence in relation to Hillary Clinton's visit to New Zealand in 2018; a sporting event at Spark Arena in June that year (involving a team from the United States of America); and by stabbing someone in New Lynn. In relation to the last, G noted he became “spooked” by the presence of neighbours.
G also created a digital diary for “Terror Plot Recons”. Its extensive content implies G visited many Auckland sites to assess their suitability for lethal violence motivated by political or religious ideology, in other words, acts of terrorism. I give three examples only; Schedule B contains a list of sites in the diary:
Starbucks Café Westgate Mall Stakeout
Modification date: 29/09/2020
I have made many Recons of this Café and it sucks because not many people actually go there now probably around about 5–20 people go there it's not as packed which is a little disappointing. The scenarios I can think of is problematic a downright hostage siege which is pretty gay because you only get like a few kills but it's very intense like that based Sydney Café siege (2014) which was fucking amazing but he only got like 2 kills so that's not what I want.
North Westgate Stakeout
Modification date: 29/09/2020
It's pretty big and long for a Mall but scores of potential kills to be taken [two laughing with tears emoji]. It's pretty much the same as the Newmarket scenarios guns blazing [two guns emoji] and Bombs blasting [two bomb emoji and two flame emoji]. I could also use a vehicle to plough into civilians from the concrete path into the mall smash my way in there and score kills for the just cause. This could be one of my favourite targets to commit my Terror Attacks Haha but I rather prefer the Newmarket Mall.
Church of Scientology Grafton Stakeout part 1
Modification date: 29/09/2020
I literally fucking hate this place and it's fake bullshit people I will incenirate the whole building with a RPG. I've been in that place back in 2018 where I was hopeless and looking for a purpose at that time I was already Radicalized of Extremism so I was lured in to the church for free food until they literally treated me like shit and how I was pathetic and wanted to brainwash me by trying to make my life better for their own good. They gave me a survey for how's life doing for me and I answered honestly to most questions. I guess that's how they got to me all I wanted was free food well now I'm hell-bent on vengeance and blood this church is one of my number 1 targets for my Terror Attacks So it'll be an honour to kill these fucking fairytales. First scenario will be a gun attack just slaughter them fuckers with a AK 74 or a XMS-15 BUSHMASTER and then pour petrol all over the church and light it up boi [two flame emoji, two scull emoji and two laughing with tears emoji]. Last scenario is probably bomb the front entrance or the carpark of the church and then proceeded with an Assault rifle. I will visit the church or overlook the target place and get pics of it.
On 28 June 2021, a member of the Victorian Police, Australia, contacted Acting Detective Sergeant Elizabeth Willis, the officer-in-charge of the Counter-Terrorism Covert Online Team, about the online activity of “Haze Rebel”. 3 Haze Rebel operated Instagram and Telegram accounts under the banner, “Death to the World”.
Haze Rebel's Instagram account followed accounts supporting Islamic State, and the same user's Telegram account was praising terrorist attacks in support of Islamic State. Haze Rebel offered particular support for the “mujahedeen brothers” in their attacks against the United States of America, and shared links and channels supporting Islamic State.
Victorian Police believed Haze Rebel was in New Zealand.
ADS Willis established Haze Rebel was G, and that G had already attracted attention:
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(a) In May 2020, G published on his Twitter account what appeared to be a threat to bomb Auckland International Airport and remarks directed at Chinese “spies”, whose “throats will be slit”.
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(b) Sometime after COVID-19's advent, G published on his Instagram account disapproval of apparently inadequate social distancing outside a particular Auckland fast-food store. G said those shown in the accompanying photograph should be “shot dead”, the store “blown up by a pipe bomb”, and its owner “tortured and hanged”.
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(c) On 21 October 2017, G abused customers leaving a West Auckland supermarket. Police attended. They found two craft knives on G and a replica plastic gun. G was warned and taken home.
On 1 July 2021, Detectives Chris Blake and Michael Donaldson went to G's home to obtain intelligence, manage risk, and maintain public safety. G was home. So too one of his mothers, whom I call S. Detective Donaldson thought G may have “some sort of mental health issue”. S told the Detective G was on the autism spectrum, albeit he had not been the subject of any formal diagnosis. G showed Detective Donaldson his bedroom. The officer noted a black plastic gun and wooden gun on a table therein.
Detective Donaldson and G spoke. The Detective concluded G's online interests and presentation appeared “contradictory”:
By this I mean, [G] explained that he was only interested in the imagery of ISIS and gave no indication of having knowledge about their beliefs or ideology. His online comments suggested otherwise. He was praising ISIS attacks and claiming they were justified.
Between 2 and 20 July 2021, Detective Donaldson encouraged S to obtain medical and other support for G. He and other Police personnel identified various sources of support. Detective Donaldson “continually reinforced [to S] that the defendant had an attraction to ISIS, for which the Police were extremely concerned and therefore felt all avenues of help could be positive”.
S was initially receptive but ultimately “rejected all … avenues to help”.
ADS Willis concluded in the circumstances, “online engagement was the only option” available to Police. A Police officer assumed the identity of “Ozarikon”, a notional supporter of Islamic State. Because of G's possible autism, Police consulted two psychologists about Ozarikon's profile and communications. Ozarikon was “to be subordinate to the defendant” and “not … any more radicalised”. His knowledge of Islamic State was to be inferior to G's, but his age and background similar. Ozarikon was “not to lead the defendant into areas he would not necessarily go”.
On 13 July 2021, Ozarikon sent his first message to G, using G's Instagram account. He asked if a camouflage outfit was for sale “off the shelf”. G replied 16 July 2021, saying he believed so, and giving advice about a possible supplier.
Ozarikon and G corresponded frequently thereafter until 6 September 2021. Their communications are central to the Crown case, and critical to the charge G threatened to kill members of the public between 5 August and 7 September 2021. More about the communications soon.
On 8 September 2021, Police ended the operation. A search warrant at G's home revealed the folder-system, diary entries and Terror Plot Recons diary described earlier; clothing G had told Ozarikon he wanted to wear during attacks; two knives; an ingredient for a homemade bomb G had discussed with Ozarikon; and a host of objectionable publications encouraging and depicting violent extremism. One was a compilation of executions by members of Islamic State, which included child soldiers killing prisoners. Another contained body camera footage from a terrorist attack in Germany in 2019.
Police also found three videos in which G swore allegiance to Islamic State, and threatened retribution against New Zealanders and the government. In these, G offered his preparedness for martyrdom and said he would commit a terrorist attack after more research.
The search did not recover the communications between Ozarikon and G. G used platforms in which the communications self-deleted. Those relied on by the Crown constitute the Police-end of the communications. These endure only...
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