Abbas v The Queen
[2022] VSCA 39
•29 March 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0192
| HAMZA ABBAS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | T FORREST, EMERTON and KENNEDY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7 February 2022 |
| DATE OF JUDGMENT: | 29 March 2022 |
| MEDIUM NEUTRAL CITATION | [2022] VSCA 39 |
| JUDGMENT APPEALED FROM: | [2019] VSC 775 (Beale J) |
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CRIMINAL LAW – Appeal – Conviction – Conspiracy to do acts in preparation for, or planning, a terrorist act – Preparatory offences – Whether verdict of guilty unsafe or unsatisfactory having regard to evidence – Whether judge erred in directions to jury on fault element – Whether doing act in preparation for or planning a terrorist act requires intention that terrorist act occur – Whether judge erred in admitting co-offender’s plea of guilty – Whether probative value of co-offender’s plea outweighed by danger of unfair prejudice – Whether judge erred in allowing use of co-offender’s plea for hearsay purpose – Power v The Queen (2014) 43 VR 261 applied, Lodhi v The Queen (2006) 199 FLR 303, Fattal v The Queen [2013] VSCA 276, Dacre v The Queen (2018) 57 VR 285 considered; Criminal Code Act 1995 (Cth) sch ss 11.5, 101.6, Criminal Procedure Act 2009 s 276(1), Evidence Act 2008 ss 38, 60, 81, 137 – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Carr SC with Ms A J Beech | Stary Norton Halphen |
| For the Respondent | Mr P J Doyle SC with Mr A Sprague | Ms A Hogan, Solicitor for Public Prosecutions |
T FORREST JA
EMERTON JA
KENNEDY JA:
Introduction
After a lengthy trial in the Supreme Court the applicant was convicted of ‘[c]onspiring with Abdullah Chaarani, Ahmed Mohamed and Ibrahim Abbas to do an act or acts in preparation for, or planning, a terrorist act’, contrary to ss 11.5(1) and 101.6(1) of the Criminal Code (Cth) (the ‘Criminal Code’).[1] Those provisions read, relevantly, as follows:
[1]Schedule to the Criminal Code Act 1995 (Cth).
11.5 Conspiracy
(1)A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, commits the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.
…
(2)For the person to be guilty:
(a)the person must have entered into an agreement with one or more other persons; and
(b)the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and
(c)the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.
…
101.6 Other acts done in preparation for, or planning, terrorist acts
(1)A person commits an offence if the person does any act in preparation for, or planning, a terrorist act.
…
(2)A person commits an offence under subsection (1) even if:
(a)a terrorist act does not occur; or
(b)the person’s act is not done in preparation for, or planning, a specific terrorist act; or
(c)the person’s act is done in preparation for, or planning, more than one terrorist act.
The applicant was sentenced to 22 years’ imprisonment with a non-parole period of 16 years and six months.
Ibrahim Abbas, who was the applicant’s brother, pleaded guilty to one charge of conspiracy to do acts in preparation for, or planning, a terrorist act. Abdullah Chaarani (who was the applicant’s cousin) and Ahmed Mohamed were indicted with the applicant at trial and were each convicted of the same offence, but with slightly different particulars. The full trial indictment reads as follows:
Charge 1
The Director of Public Prosecutions, who prosecutes in this behalf for Her Majesty the Queen, charges that between about the 21st day of October 2016 and the 22nd day of December 2016 HAMZA ABBAS, ABDULLAH CHAARANI and AHMED MOHAMED at Melbourne and elsewhere in Victoria did conspire with each other, and with IBRAHIM ABBAS to do an act, or acts, including:
(a)purchasing chemicals, explosive substances, and mechanical and electrical components for use in the manufacture of improvised explosive devices;
(b)taking steps towards manufacturing and testing improvised explosive devices;
(c) purchasing bladed weapons;
(d) taking steps to gain access to firearms; and
(e)conducting reconnaissance of potential target areas of Federation Square, Flinders Street Train Station and Saint Paul’s Cathedral
in preparation for, or planning, a terrorist act.
The ‘terrorist act’ was an action or threat of action involving the detonation of an improvised explosive device or devices and/or the use of bladed weapons and/or the use of a firearm or firearms in or around the city of Melbourne, in an area in which people were likely to congregate. The action or threat of action was to be done or threatened with the intention of advancing a political, religious or ideological cause, namely the pursuit of violent jihad, and with the intention of either:
(a)coercing, or influencing by intimidation, the Government of the Commonwealth or a State, Territory or foreign country, or a part of a State, Territory or foreign country; or
(b) intimidating the public or a section of the public.
The action, if carried out, would:
(a) cause serious harm that is physical harm to a person; and/or
(b) cause serious damage to property; and/or
(c) cause a person’s death; and/or
(d)endanger a person’s life, other than the life of the person taking the action; and/or
(e)create a serious risk to the health or safety of the public or a section of the public.
The action or threat of action was not to be done as advocacy, protest, dissent or industrial action.
Alternatively, if the action or threat of action was to be done as advocacy, protest, dissent or industrial action, it would be of a kind intended to:
(a) cause serious harm that is physical harm to a person; or
(b) cause a person’s death; or
(c)endanger the life of a person, other than the person taking the action; or
(d)create a serious risk to the health or safety of the public or a section of the public.
The applicant has sought leave to appeal out of time. This extension is not opposed should the Court conclude that there is merit in any of the proposed grounds of appeal.
The applicant advances the following grounds of appeal:[2]
[2]Leave was sought to amend ground 1 and to add ground 5. Grounds 3 and 4 were abandoned.
Proposed Amended Ground 1: That an error, or errors, in the directions given to the jury in relation to the mental state required to establish the [a]pplicant’s [guilt], resulted in a substantial miscarriage of justice.
Particulars:
(a)The learned trial Judge erred in directing the jury that it was not an impediment to a conviction if:
-The accused person did ‘not want the terrorist act to be carried out’ … ;
-The accused was ‘ambivalent about whether a terrorist act should be carried out’ … ;
-The accused was ‘indifferent as to whether a terrorist act is actually carried out by anyone’ … ; and
-The accused ‘hoped that the terrorist act would never occur’ …
(b)The learned trial Judge erred in illustrating those directions by giving examples which suggested that a person who was positively opposed to a terrorist act occurring, could nevertheless be guilty.
(c)The learned trial Judge erred in directing the jury that ‘to prepare is to get ready for something’ … , and that if the accused ‘[knows] or believe[s] that they are agreeing to do acts which are getting ready for a terrorist act and deliberately enter into the agreement on that understanding, they have the necessary intention’ …
(d)The learned trial Judge erred in failing to direct the jury that an act in preparation for a terrorist act must be an act that is intended to advance the commission of a terrorist act, and that to be guilty an accused must have intended that an act be committed which would advance the commission of a terrorist act.
Ground 2: That the verdict is unsafe and unsatisfactory.
…
Proposed Ground 5: That a substantial miscarriage of justice resulted from the admission and the directions given in relation to the use to be made of the evidence that the co-offender Ibrahim Abbas had pleaded guilty.
Ground 2
It is convenient to deal firstly with the ‘unsafe and unsatisfactory’ ground. The trial judge’s directions on the elements of the offence are not the subject of dispute under this ground. The jury were correctly directed that the elements of the offence are:
(1) That the accused entered into an agreement with one or more of the alleged co-conspirators named in the indictment to do an act or acts in preparation for, or planning, a terrorist act or acts.
(2) The accused intended to enter into that agreement.
(3) When the accused entered into the agreement he intended that an act or acts in preparation for, or planning, a terrorist act or acts would be carried out in furtherance of the agreement.
(4) When the accused entered into the agreement, at least one other party to the agreement intended that an act or acts in preparation for, or planning, a terrorist act or acts would be carried out in furtherance of the agreement.
(5) When the accused entered into the agreement he believed that at least one other party to the agreement, who in fact had the intention set out in (4) above, intended that an act or acts in preparation for, or planning, a terrorist act or acts would be carried out in furtherance of the agreement.
(6) After the accused entered into the agreement he, or at least one other party to the agreement, committed an overt act in furtherance of the agreement.
The various overt acts alleged against the combination are referred to in the indictment at items (a)–(e) of the charge.[3]
[3]See above [3].
Whilst elementally the proof of the case at trial may appear complex, the defence of the applicant was simple enough — he did not at any stage enter into the alleged agreement. On this application the applicant contends:
(a)The evidence does not support a finding of intentional agreement, knowing or believing in the existence of the essential facts of the conspiracy that the [a]pplicant is said to have joined. There is insufficient evidence of a ‘meeting of minds’ on the terms of the agreement. In fact, there was direct evidence that the true nature of at least [Ibrahim Abbas’s] intentions was concealed from the [a]pplicant.
(b)The evidence needed to prove something beyond mere presence or association for the co-conspirators rule to apply. There was no evidence of actual participation beyond his presence on a small number of occasions.
(c)The evidence as it exists is incapable of enabling negative inferences to be drawn. The evidence against the applicant created a suspicion of ‘knowledge’ on behalf of the [applicant], but did not establish that he agreed to prepare for or plan a terrorist act.
It is apparent from the above that the substance of the applicant’s contentions is that while the impugned conspiracy may well have been on foot for a considerable period, as between some or all of the co-accused, the evidence does not permit a conclusion that he joined the pre-existing conspiracy.
Section 276(1) of the Criminal Procedure Act 2009 obliges the Court to allow an appeal if it considers that a jury verdict under appeal is ‘unreasonable or cannot be supported having regard to the evidence’. This Court must undertake its own independent evaluation of the evidence as a whole in order to determine whether the jury must, as opposed to might, have entertained a doubt about an applicant’s guilt.[4] Setting aside a jury verdict is a significant step and not done lightly. The appellate court must take account of the jury’s advantage in having seen and heard witnesses and the Court must not simply substitute its own verdict for that of the jury.[5] In our view the jury’s advantage also extends to its composition. Three intermediate appellate judges can never claim the broad experience of life of 12 jurors chosen at random from the community. The jury’s collective good sense or wisdom should not be underestimated.[6]
[4]Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (Hayne J); [2007] HCA 30 (‘Libke’); Mejia (a pseudonym) v The Queen [2016] VSCA 296, [140] (Kyrou and Kaye JJA); Inia v The Queen [2017] VSCA 49, [52]–[53] (Redlich, Weinberg and McLeish JJA); Conolly (a pseudonym) v The Queen [2019] VSCA 125, [7] (Priest, Beach and Kyrou JJA); Sarjeant v The Queen [2020] VSCA 45, [4] (Maxwell P, T Forrest and Emerton JJA).
[5]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63 (‘M’).
[6]See AK v The Queen [2021] VSCA 165, [23] (Maxwell P, T Forrest and Walker JJA).
In most cases, a doubt expressed by an appellate court will be a doubt that a jury also ought to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by the appellate court that the court may conclude that no miscarriage of justice has occurred.[7] If after conducting this independent evaluation of the evidence the court is of the view that there is a significant possibility that an innocent person has been convicted, then the court is bound to act and set aside a verdict based on that evidence.
[7]M (1994) 181 CLR 487, 494; [1994] HCA 63.
There will be a significant possibility that an innocent person has been convicted when an inference consistent with innocence remains reasonably open after the totality of the evidence has been considered. This expression of the test may be used in circumstantial cases where the prosecution case rests upon inference.[8] An inference consistent with innocence ‘must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable [jurors] upon a consideration of all the facts in evidence.’[9] It is insufficient to show that there was material that might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[10] To compel a reasonable doubt the inference consistent with innocence must be reasonably open. If it is so, ipso facto the inference of guilt will not be the only inference reasonably open, and the appellate court will intervene.
[8][9]Peacock v The King (1911) 13 CLR 619, 661 (O’Connor J), quoted in Baden-Clay (2016) 258 CLR 308, 324 [47]; [2016] HCA 35.
[10]Libke (2007) 230 CLR 559, 597 [113]; [2007] HCA 30.
The pre-existing conspiracy
It was well open to the jury to accept that some time before 2 December 2016, each of Chaarani, Mohamed and Ibrahim Abbas reached an agreement to make preparations and plans for a terrorist attack on the basis that:
(a) Each of Chaarani, Mohamed and Ibrahim Abbas followed an extreme brand of Sunni Islam, which had, as a central aim, the object of waging violent jihad against its enemies. Numerous examples of their interest in violent jihad were tendered in the trial.
(b) Prior to 2 December 2016, each of Chaarani, Mohamed and Ibrahim Abbas participated in several activities which were carried out pursuant to the agreement described above and preparatory to a terrorist act. Those activities were:
·Chaarani and Mohamed accessed instructions for making improvised explosive devices (‘IEDs’).
·Chaarani photographed an article entitled, ‘Make a Bomb in the Kitchen of Your Mom’ (the ‘bomb-making article’), on 10 October 2016. This article was published in an online terrorist magazine entitled Inspire.
·On 11 October 2016, Mohamed stored a copy of this magazine, including the bomb-making instructions, on his mobile phone.
·On 19 October 2016, Mohamed accessed YouTube videos showing the ignition of party ‘sparklers’. He also accessed and transmitted a link to a video entitled, ‘How to Build a 5000 Sparklers Bomb’ to a WhatsApp group.
·On 23 October 2016, Mohamed asked Chaarani, in an intercepted telephone conversation, if he had any screws or nails. Screws and nails are suggested as shrapnel in the bomb-making article.
·On 4 November 2016, Chaarani received an email from eBay in relation to interest he had shown in a ‘Muela Mirage’ brand hunting knife. During a subsequent police search of Chaarani’s house, a Muela Mirage hunting knife was seized.
·On 8 November 2016, Chaarani accessed a video through the website heavy.com called ‘The Impenetrable Fortress’. This video contained images of the Yarra River, the Melbourne Cricket Ground, Flinders Street Station and the Arts Centre spire, Tullamarine International Airport and a Qantas plane.
·On 21 November 2016, Mohamed and Ibrahim Abbas purchased 300 red ‘Ramset’ cartridges from Bunnings Warehouse. These cartridges contain gunpowder and are ordinarily used in explosive power tools such as nail guns. They are capable of use in manufacturing a pipe bomb. Mohamed and Ibrahim Abbas also purchased four galvanised 25 mm pipe elbows, one galvanised 25 mm nipple, one galvanised 25 mm plug and one galvanised end cap. These items are also capable of use in the manufacture of a pipe bomb.
·In the bomb-making article gunpowder is specified as an ingredient that can be complemented or substituted with matchheads and/or fireworks. The bomb-making article also specifies piping such as was purchased at Bunnings.
·At 4:15 pm on 21 November a conversation was recorded between Mohamed and Chaarani. Mohamed advised that they had been to Bunnings and that he ‘got some tools’, but ‘need[ed] the drill’. Chaarani replied that the drill was not at his house — it should have been in the shed — and Mohamed should ‘get the drill bits and everything’. The bomb-making article also stipulates that a drill be used to make a hole in the iron pipe so that ignition wires can be inserted.
·Approximately five hours later, Chaarani spoke to his wife in a recorded telephone call. He said he would be ‘another couple more hours … We’ve been delayed for a bit.’ He handed his phone to Mohamed who (on the same call) spoke to his own wife. He was evasive about his whereabouts (‘I am going to Disneyland’), and when his wife became frustrated he said, ‘Yeah it’s not planned. By Allah, it just happened — all of a sudden … Just have patience with me …’ Later he said, ‘For the sake of Allah please have patience with me. It’s very important.’
·This call connected to a telecommunications cell tower in Clonbinane. At 9:54 pm Ibrahim Abbas’s mobile phone connected to a cell tower at Tallarook, just north of Clonbinane.
·It was open to the jury to conclude, and we conclude, that on this nighttime trip: (a) all three men had business in Clonbinane, and (b) that business in some way concerned an attempt by them to manufacture or test an IED.
·On 28 November 2016, Mohamed accessed online a video entitled, ‘You Must Fight Them O Muwahhid’. The video’s narrator sets out a tutorial for the making of an IED from largely household products such as acetone, glass jars, syringes, hydrogen peroxide, sulphuric acid, lightbulbs, batteries, matches, tape, scissors and shrapnel such as nails, screws, nuts and bolts. The video explains how acetone, hydrogen peroxide and sulphuric acid can combine to produce a highly explosive substance called triacetone triperoxide (‘TATP’). The narrator explains how hydrogen peroxide can be purchased at a pharmacy and how sulphuric acid can be found in a car battery. Relevantly, the video also explains how knives can be used to kill and a live example of this was part of the video.
·On 30 November 2016 Mohamed and Ibrahim Abbas attended Bunnings Warehouse again. This time Mohamed photographed cable speaker wire. This type of wire was specified in several bomb-making articles and identical or similar wire was subsequently found in the vehicles of both Chaarani and Mohamed.
·A little later on 30 November, Mohamed requested that Chaarani purchase a battery, which he did.
·In the early morning of 1 December 2016, Chaarani, Mohamed and Ibrahim Abbas attended again at Clonbinane. Their vehicle stopped at an intersection for around three minutes, and then drove through the intersection only to become stationary again for about four minutes. It then drove down two bush tracks before returning to Melbourne.
·It was open to the jury to conclude, and we conclude, that on this second, late night/early morning trip: (a) all three men had business in Clonbinane, and (b) that business in some way concerned an attempt by them to manufacture or test an IED.
The applicant’s interests before 2 December 2016
Up until 2 December 2016, it was not suggested that the applicant was part of the conspiracy alleged. There was no evidence led to establish any more than a vague interest in jihadi and Islamic State (‘IS’) ideology up until this date. On 1 May 2016 the applicant asked Chaarani for the name of a website Chaarani had used to access the lectures of Anwar Al Awlaka,[11] an Islamic scholar. On 16 May 2016 the applicant sent his sister a photograph of his cousin, Nabil Abbas. Nabil Abbas had recently been killed overseas. He was said to have been fighting for IS. Between the end of May and 28 August 2016, on 17 occasions, the applicant used the internet to access a nasheed[12] entitled, ‘Syria Jihad Nasheed 2014 Fi Sabeelil Karamah Dedicated to ISIS by amaq aziz’. Between 31 May and 27 August 2016 he searched for ‘jihad nasheed’ on 32 occasions, and between 3 June and 20 August 2016 he accessed nasheeds with either ‘Shahada’[13] or ‘shahid’[14] in the title on 35 occasions.
[11]Anwar Al Awlaki was a renowned Yemeni-American preacher who published materials on a vast array of topics in relation to the Muslim faith. He published material readily available online.
[12]A song or chant.
[13]‘Shahada’ is a declaration of the Islamic faith: ‘There is no God but Allah, Mohamed is Allah’s messenger.’
[14]Meaning ‘martyr’.
On 28 June 2016 the applicant’s computer was used to search for ‘isis heavy’ and to access a website, ‘ISIS news, videos and propaganda [WARNING: GRAPHIC] Heavy.com’. On 5 July the applicant searched for ‘Ayat Al Kursi: Anwar Al Awlaki’ on YouTube. He continued accessing material of this type on 11 and 12 July 2016. He next accessed this type of material on 7 November when he created a screenshot of an article accessed on heavy.com, and on 8 November the applicant messaged Chaarani a picture of a hamburger with the words, ‘Mosul now serving Peshburger’.[15]
[15]The image was adduced alongside the screenshot of the heavy.com news article, which explained that Mosul had recently been liberated from IS control by the ‘American coalition’, which included the Kurdish Peshmerga.
On 1 December 2016 intercepted telephone conversations between Mohamed and Ibrahim Abbas demonstrated that the applicant was in company with Ibrahim Abbas. Mohamed and Ibrahim Abbas were discussing attending a prayer lesson at the Al Muntada Mosque. Ibrahim Abbas stated that the applicant wished to come to the lesson:
I. ABBAS says, ‘ … my brother is with me ’cause he wants to come to the lesson’.
MOHAMED asks ‘what lesson?’,
I. ABBAS replies, ‘[A]h Muntada bro … he’ll just kick back with us till then.’
MOHAMED says, ‘[B]ut I don’t trust your brother.’
I. ABBAS says, ‘[Y]eah, no, you should … he’s a Muslim, bro.’
MOHAMED replies, ‘[Y]eah, I know he’s a Muslim but, like, come on, you know what I mean?’
I. ABBAS says, ‘Anyway, we’ll see you soon yeah?’
MOHAMED replies: ‘All right. Call Abdul and call me back …’
Later that evening Mohamed seemed to have shed his reservations. He was recorded saying to his wife, ‘[H]e’s 21 … he’s working full-time as a painter … he’s got green eyes, he’s got a good [doctrine/religious way] … same [doctrine/religious way] as me.’
Events from 2 December 2016 onwards
In the early hours of 2 December 2016 Chaarani, Mohamed and Ibrahim Abbas attended the Clonbinane area on a third occasion. This time they were accompanied by the applicant. The Toyota vehicle that they used was being monitored with a tracking device and was captured at one point on CCTV. At 1:08 am the vehicle became stationary in the Mt Disappointment State Forest and at 1:15 am the vehicle commenced moving again. At 1:48 am the Toyota dropped off Ibrahim and Hamza Abbas. At trial it was undisputed that the applicant
made this trip.
It was open to the jury to conclude, and we conclude, that, on all the evidence, including the evidence that surrounded the first two trips to this remote location, the purpose of this third trip in some way concerned the manufacture or testing of an IED. The presence of the applicant on this trip may not be by itself sufficient to establish that he had joined the conspiracy at this stage, but further events in the chronology bore powerfully on this question. We set out these events below.
In the evening of 2 December, Mohamed conducted internet searches concerning whether hydrogen peroxide could be purchased from a pharmacy. Immediately after those searches he spoke with Ibrahim Abbas over the phone, as recounted accurately in the prosecutor’s opening address:
‘Come back to my house?’ ‘Why?’ ‘You’re pretty stupid to ask that,’ says
Mr Mohamed. Mr Ibrahim Abbas: ‘Oh all right.’ ‘What’s it called?’
Mr Mohamed: ‘What?’ ‘Or do you want to just meet up at Chemist Warehouse next to you and then we’ll come back to my house and we’ll …’, and then there’s a conversation, further conversation about dinner plans.
Then the conversation continues. Mr Ibrahim Abbas: ‘I’ll just come with my brother to your house.’ Mr Mohamed: ‘So you want to come to mine and then we’ll go … together or do you wanna just meet up at [the] chemist and then we’ll come to my house[?] [U]p to you[,] whatever you want.’ ‘I’ll meet you at your house.’ Mr Mohamed: ‘All right then quick.’ Mr Ibrahim Abbas: ‘All right then peace be upon you.’ Mr Mohamed: ‘Peace be upon you too. Hey, listen, listen, listen’, then the phone cut off abruptly.
Mr Mohamed then called Mr Ibrahim Abbas back and asked Mr Ibrahim Abbas if he had two glass jars with lids and they had the following conversation: ‘If you have two glass jars get them with lids. If you don’t have we’ll just get them from Kmart, they’re like two bucks each or something. All right.’
Hydrogen peroxide and glass jars are said to be necessary for the manufacture of a home-made bomb in the video, ‘You Must Fight Them O Muwahhid’.
Later that day the applicant, together with Mohamed and Ibrahim Abbas, attended at a Chemist Warehouse retail outlet in Campbellfield. The applicant and Mohamed entered the store and purchased 100 ml of hydrogen peroxide. CCTV footage shows the applicant examining the bottle at the counter before Mohamed paid for it.
In the period between 3 and 6 December 2016, two glass jars were photographed in the refrigerator at Mohamed’s house.[16] On 4 December, in an intercepted phone call, Mohamed told Chaarani, ‘[Y]ou know, the — the yesterday things at my house? … It’s — it’s — there’s nothing, there’s no difference, bro, it’s — it’s the same thing. There’s no improvement, nothing … I was so happy [with] that. I’m opening the fridge I’m like, far, same thing. Disappointed, bro. Very disappointed.’
[16]The photograph was seized from Mohamed’s phone.
On 8 December 2016, Chaarani and Mohamed conversed via WhatsApp. During that conversation, Chaarani stated variously, ‘u gotta register for Crown Land and use the registration number to fill out the form’;[17] ‘my 3am gave me all the details last night’; ‘I’m doing it all today’; ‘don’t rush me please’; and ‘i know its been a while but walla i got so much stuff to do’. Mohamed replied, ‘OK akhi as long as ur doing something’, and ‘I [didn’t] know [a]ll that’.
[17]This ‘form’ was an application for a licence to shoot on Crown land.
On 14 December 2016, Mohamed viewed a Facebook advertisement for the sale of five ‘Adler’ brand lever action shotguns.
On 14 December 2016 the applicant conducted several Google searches about obtaining a firearms licence and downloaded the Victorian Firearms Application Form for Category A and B firearms from the Victoria Police Licensing and Registration Division website. On 17 December 2016, the applicant again downloaded the firearms application form referred to above.
On 20 December, Chaarani telephoned Sunbury Police Station and enquired about registering for a firearms course. On that day Mohamed told Chaarani (in an intercepted telephone call) that, ‘[W]e need to go to — go to the city for a drive … after we finish training do you reckon … there’ll be no traffic then?’ Chaarani said, ‘Yeah, all right.’ Mohamed then said, ‘Bro, this is more important than anything else … [I]f you’ve got any plans, cancel because, by Allah, this is very important, very, very important. We’re running out of time.’ Chaarani said, ‘Ok, ok, ok, no worries.’
Later on 20 December, at 6:30 pm, all four co-accused met at Hume Islamic Youth Centre (‘HIYC’). They walked around the surrounding streets for about
20 minutes and then all drove to Melbourne CBD. CCTV and surveillance footage depicts the four men walking around Federation Square and St Paul’s Cathedral. They appear to be talking amongst themselves. At one stage, while they are in Federation Square, they sit on the northern steps that face Flinders Street. Ibrahim Abbas is depicted making a chopping motion. Ibrahim Abbas, who was an ‘unfavourable’ prosecution witness at trial,[18] stated in evidence that he was demonstrating how easy it was to kill someone with a knife.
[18]See Evidence Act 2008 s 38 (‘Evidence Act’).
On 21 December 2016, Chaarani and Ibrahim Abbas attended ‘Boating Camping Fishing’ in Coburg and purchased two ‘Gerber’ brand machetes, which they said were to be used for hunting. Later that day, intercepted telephone calls capture discussion about martyrdom, jihad and Shahada. Ibrahim Abbas stated that he ‘want[ed] it by Sunday’ (which was Christmas Day 2016).
Mohamed’s car was impounded for a short time on 21 December 2016 and a listening device was installed. In a WhatsApp message, Mohamed told Chaarani that his car had been impounded and then returned. Chaarani replied, ‘[I]t’s all a plan they have … ur car’s bugged wallahu aslam.’ Mohamed said, ‘agree.’
On 22 December 2016, Mohamed purchased 700 red Ramset cartridges at Bunnings Broadmeadows.
Later on 22 December the applicant and his three co-accused were arrested by Australian Federal Police agents and lodged in a cell together at Melbourne Assessment Prison. Their conversations were recorded between 23 and 27 December. At one point the applicant ruminated aloud over his arrest. Mohamed said to him that there was nothing on the applicant’s phone. The applicant said, ‘I have my … (indistinct) … for nasheeds.’ Mohamed said, ‘Nasheeds are nothing.’ The applicant said, ‘ … and I have, I searched for (indistinct) … for nasheeds’. Mohamed replied, ‘That’s it? Why are you even here, Hamza?’ The applicant replied, ‘I
don’t know.’
The applicant’s police interview
The applicant was interviewed by police upon his arrest. The applicant’s written case summarises the relevant content of that interview. The respondent accepts that summary as accurate. It is sufficient to reproduce that summary:
The [a]pplicant was interviewed by police upon his arrest, commencing late in the evening of 22 December and re-commencing early in the morning of 23 December 2016. His answers to the questions asked can be summarized as follows:
a.The [a]pplicant denies knowing anything about making bombs or what hydrogen peroxide is;
b.The [a]pplicant says that he has recently been invited to go hunting with his boss and that his boss has said he would need a gun licence to do that;
c.He admits going to Chemist Warehouse with [Mohamed] and [Ibrahim Abbas], he says he was with a mate [of his brother’s] who he thinks is called Mohamed … He recalls [Mohamed] buying a little bottle of something that [Mohamed] told him was for warts;
d.The [a]pplicant says that on 20 December 2016, he trained at the gym with the co-accused until they went for a drive to the city to buy some ice-cream.[19] He says they also went to Federation Square where they sat and talked and went for a little walk around. He denies discussing a terrorist attack;
e.The [a]pplicant denied ‘[getting] any hints or anything about, like, planning to do stupid stuff like [planning a terrorist attack]’;
f.In response to the suggestion that his co-accused were planning to prepare a terrorist attack, the [a]pplicant says, ‘I hope — like, I actually hope he wasn’t, like, planning to do stupid stuff like that’;
[g.]In response to the allegation that [Chaarani] had bomb making equipment, the [a]pplicant said, ‘You said Abdullah had like pieces … and stuff. I hope he wasn’t planning to do stupid stuff like that. It’s just very dumb. Yeah. There’s no point. What’s the point of it? It’s just causing more mess — massacre and stuff, you know?’;
[h.]His final answer when told he will be charged is, ‘I don’t think I should be charged.’
[19]This was relied upon by the Crown as a lie amounting to incriminating conduct …
Search warrants were executed at each accused’s home. Amongst other items, the following were seized:
·Chaarani’s home: 800 matchheads, 400 sparklers, pipes and a light bulb.
·Mohamed’s home and car: acetone, hydrogen peroxide (apparently the same brand as was earlier purchased at the Chemist Warehouse in Campbellfield), Ramset cartridges and batteries.
·Applicant’s home: an unfilled Victorian Firearms Application Form and two mobile telephones.
Expert evidence was called to the following effect:
·69 mls were missing from the 100 ml hydrogen peroxide bottle and 56 mls were missing from the acetone bottle. These are two key ingredients for making IEDs using the highly explosive substance TATP.
·There was no evidence of explosive substances being used at a forested area near the intersection of Main Mountain Road and Escreets Road in Clonbinane. The inspection of this area was conducted on 17 December 2016.[20]
·GPS data from a tracking device placed on the vehicle used by Chaarani, Mohamed and Ibrahim Abbas on 1 December 2016 and by all four accused on 2 December demonstrated that on both occasions the vehicle was driven to Clonbinane. The vehicle was stationary for three minutes and then for four minutes on 1 December and moved a total of two metres over the course of seven minutes on 2 December. The ‘stop points’ on each date were within 10 metres of each other.[21]
[20]Evidence of Mr George Xydias, Forensic Officer employed by Victoria Police Forensic Services Centre.
[21]Evidence of Mr James Harris, geographic information systems specialist employed by Australian Federal Police.
Ibrahim Abbas
As we have observed earlier, Ibrahim Abbas pleaded guilty to one charge of conspiracy. He was sentenced by the trial judge and subsequently called by the prosecution to give evidence at the trial.
Ibrahim Abbas’s evidence-in-chief was in many respects inconsistent with his police interviews and, for reasons which we will discuss in detail under ground 5, his plea. In substance, Ibrahim Abbas said in evidence that he had acted alone, but did discuss an attack with Chaarani and Mohamed. He said that there was never an agreement to carry out a terrorist attack and the trip to Federation Square was his attempt to persuade them to join him, but they were not willing. He stated that he had determined to commit an attack with or without the others. He said that he discussed the attack with his brother, the applicant, but his brother would argue with him and tell him he was wrong. He said the applicant never agreed with him to do the act. In saying this, in evidence, Ibrahim Abbas did not distinguish between the ultimate terrorist act and some preparatory act. As will be seen below, in his electronic record of interview (‘EROI’), recorded 22–23 December 2016, he stated that the applicant did not agree to be involved in the ultimate terrorist act, but seemed to agree that he was involved in some preparatory acts.[22]
[22]See answer to Q458 below.
The prosecution sought and were granted leave[23] to cross-examine Ibrahim Abbas and his EROI was played to him as containing many prior inconsistent statements. In the EROI, Ibrahim Abbas made, inter alia, the following statements:
[23]Under s 38 of the Evidence Act.
·He just wished to ‘say everything’ (Q456).
·‘Australia is attacking Muslims in Islamic State’ without distinguishing innocent people (from soldiers) (Q458).
·It is legitimate that Australian citizens should expect the same thing (Q458).
·‘I was the forefront of this group propagating this message that we need to do something here [in Australia] because Australia kills and bombs Muslims overseas …’ (Q458).
·‘With regards to my brother, I was pushing him as much as I can so he could join me in this act because I was trying to create a group and he was hesitant, very, very hesitant, he did not want to do it and I was forcing it upon him’ (Q458).
·‘[I]t’s not that I — I don’t believe I convinced him, I just believe that he was … peer-pressured, like, ’cause of how — you know, like, we’re so close and … I managed to convince him that, you know, this is what we have to do since — I ... sincerely believe that, because whenever we want to do anything or plan something he’d be, like, no, let’s not do that, let’s not do this and he just — he was always the first person to come up with excuses not wanting to do anything. And when he’d be alone he’d tell me, why are you doing this, you know, you don’t have to do that, this isn’t the right thing, we’re taking innocent people’s lives, blah, blah, blah, blah, blah and I’d try to do whatever I can to bash my views onto him’ (Q458).
·‘As with the other two, being Abdullah CHAARANI and Ahmed MOHAMED, same thing. I would tell them, this is what we have to do. Ahmed MOHAMED, although he would sometimes agree, sometimes not agree he would come up with a lot of excuses … [H]e was sometimes on, sometimes off’ (Q458).
·‘My brother has not been involved in the majority [of the activities]. In about 90 per cent of things my brother has not been involved’ (Q458).
·‘I told Ahmed [Mohamed] that we need hydrogen peroxide and he listened, he went and got it but we never really done anything with it because we had no clue. We couldn’t really follow the video properly, like, it wasn’t — I couldn’t — … I wasn’t able to make a bomb with the hydrogen peroxide’ (Q458).
·As for his cousin, Abdullah Chaarani, he ‘didn’t agree immediately, that’s for certain’ (Q458)
·Ibrahim Abbas interpreted a recorded conversation: ‘That’s the one about the machete which I was planning to use to chop some … people’ (Q465).
·In that recorded conversation, Ahmed Mohamed was saying words to the effect that ‘he’s happy to do this but he’s very, very scared about [doing] it’ (Q465).
·‘I was planning on … using that machete myself … I was gunna … order everyone that whoever is, like — cause — I just want to make something clear … I was forcing things on everyone’ (Q492).
·When asked who ‘everyone’ was, Ibrahim Abbas said, ‘Well, I’m [talking] about Abdullah … MOHAMED and my brother’ (Q494).
·‘So I was forcing them that we should … wear vests, explosive vests and then … we’re gunna ram a policeman and get his gun and then I was gunna give that gun to whoever I deemed fit to use the gun and then we were gunna go to the city square and … one person would use the gun and … I was gunna just — whoever I see I was gunna chop and chopping to kill. And … then I was gunna tell … my co’s [sic] to blow themselves up’ (Q495).
·When asked who was meant by his ‘cos’, he stated that he meant his ‘friends’, who he named as ‘Ahmed, Abdullah, my brother’ (Q496–7).
·‘[T]he date hasn’t been decided but we were thinking … Christmas, New Year’s, some time within the next few months’ (Q498).
·He had been discussing this plan for about a month (Q499).
·When asked about the preparations, he said, ‘Look, I — I watched the video very briefly. I didn’t watch it all. I just watched … the hydrogen peroxide part that, you know, you just — to be honest, I don’t even remember exactly how it’s made. We — basically, you know, we need a detonator, we need [a] power source … and we need a pressurised, um — pressurised, um — we need a gun, as much gun powder and pressurise it — not pressurise — it’s — you know, compress it as much as we can and then we use an LED. We pop it. By pop it, as in, we — I send … a higher voltage to the LED and then the LED would explode — sorry, the — because of the compression the gun powder would … cause an explosion, or the peroxide … With the peroxide we never done anything with it ’cause we — I guess we weren’t smart enough to figure out how it works. We just couldn’t get it right. We tried to do some — I tried to do it and then it didn’t turn out how it turned out in the video, so, yeah … [W]e bought the hydrogen peroxide, oh, about — I don’t know like a month ago’ (Q503–5).
·He said he saw a bomb-making video online from a website called heavy.com. He watched it with Chaarani and Mohamed (Q508–11).
·He said that he and Mohamed bought the hydrogen peroxide on ‘second of December’. When asked who was there when it was purchased he said, ‘Just me and him’, referring to Mohamed (Q523–4).
·He said he took the hydrogen peroxide to Mohamed’s house and they tried to mix the ingredients but this was not successful (Q525).
·He said that the discussions in which he tried to convince Chaarani and Mohamed occurred at ‘IYC gym’ (Q550).
·When Ibrahim Abbas was asked, ‘And who would be there?’, he gave the following series of answers:
AJust Ahmed, Abdullah and myself. Why did I say — why didn’t I say my brother? Because I told them I wanted it clear that I don’t want my brother attending these … meetings if you want to call them [that] because he — it will just make him not want to do it when he sees that this is, like — what I was planning with my brother is that on the day I’ll bring him in the car and we go to the site.
Q552.And what would happen?
AI would put a vest on him.
Q553.Sorry, you would?
APut a vest on him.
Q554.Did he understand what that meant?
AI don’t think he did at the time.
·He denied that he ever got a device to a stage where he could test it (Q579).
·CCTV footage of the group of four at Federation Square was played to Ibrahim Abbas. He identified the applicant, Chaarani and Mohamed. The following exchange then occurred:
Q622.I might just move it forward slightly to the date time stamp — I’ll just — I’ll read — I’ll say it out loud, it’s quite small writing. Okay. So now it’s at date time stamp eight thirty-three fifteen. If you could just continue describing in response to Federal Agent BUTLER.
AYeah. So here we’re [walking] around and I told them, like, just — let’s just discuss what’s a nice place of interest to carry out an attack.
…
Q623.And what was the discussion?
AOh, we were just saying, like, people don’t go to here, people go to there, like, this. Yeah, we were just making our way to town square at this point. Ahmed just keeps stopping, wants to look around.
Q624What’s that?
AOh, he just wants to scout the area.
Q625What do you mean by scouting the area?
ALike … look at areas and just … you know, thing — like, decide whether it’s okay or not.
Q626What was he saying about that?
AHe wasn’t saying much, he was just — like, it looks like he’s talking but, no, we weren’t talking a lot about the thing. We’re [trying] to be careful what we say.
Q627Why was that?
A ’Cause it’s a public place, a lot of people around us.
Q628And why were you worried about that?
A’Cause it’d be pretty stupid for someone to hear us [talking] about our plans. (Laughs) Just the way I walk, it’s - - -
…
Q629What did you see there that prompted that reaction?
AThe way I’m walking.
Q630What do you mean the way you’re walking?
AI got that (laughs) I don’t know what it’s called, just funny.
Q631How were you feeling — what were you feeling, what was going through your mind?
APride.
Q632Pride means different things to different people. What do you mean ‘pride’?
AI felt like [doing] something honourable, you know, honourable.
Q633.I’m just going to skip it forward a little bit again. So can you just describe the [scene] as I’m moving forward.
AYeah, we’re just [going] towards town square and we decided just to sit here …
Q634.What are you looking at?
AUm, I wouldn’t — can’t remember exactly what we were looking at and why we were looking there.
Q635Just tell us anything that comes into your mind watching this.
AAbsolutely nothing. We just decided to sit.
…
Q636Why did you choose that area to sit?
A’Cause it’s a nice gathering area.
…
Q637What are you talking about here?
AAh, here, we were just talking about — it wasn’t really anything but we were just [talking] about, like, um, you know, what do you reckon this place — what’s so good about it, things like that.
…
Q638What - - -
AI can’t specifically tell you ’cause I can’t remember … But, yeah, I was just pointing towards, you know, ah, Flinders Street and all that.
Q639What were the other guys saying?
AMainly, like, they were just listening the whole time. Me and Ahmed were doing all the talking and Abdullah is just contemplating I guess.
Q640What was Ahmed talking about?
AHe just reckons — he just thinks and, like, he’s telling me, ah, you know, where people gather. I’m, like, what do you reckon this place, that place and I’m saying yes and no.
Q641So what places did you say yes to?
AI didn’t say yes or no to anything ’cause we didn’t finalise nothing. Nothing has been finalised as of — as of now nothing is finalised.
…
Q644Explain what’s going on there.
AWe were suspicious about this woman.
Q645Which woman?
AThat woman ’cause she kept [looking] back at us.
Q646And what did you say?
AWhat did — sorry?
Q647What was said about the woman?
AOh, Ahmed said that she keeps looking back, so just be quiet.
Q648What’s been talked about there, the gesturing and - - -
AI can’t remember to be honest.
Q649Everybody is looking pretty serious.
ANo, not really. This is how we always look.
Q650What’s going through your mind at this stage?
AThere?
Q651Mm.
AI’m just thinking how I’m gunna use my knife as efficiently as possible.
Q652Explain what you mean by that.
ASo obviously when the first person gets cut people are gunna start running away so I’m thinking where are they gunna run away, how am I gunna catch ’em.
…
Q654And how were you going to catch them?
AI was going to run at them, slice their necks.
Q655Do you have any particular idea about how you were going to do that?
ANo. I have no training in that area.
Q656Had you — was there any ISIS videos that covered that sort of - - -
ANothing. No.
…
Q657Just want to - - -
AYeah, no worries.
Q658Just understand what’s going on here, okay. So we just want to understand what’s going on. I’m trying to understand it.
AWe’re just talking. It’s not nothing [sic] — nothing of, like, serious importance if — if, you know, and, like, we’re just talking about, um - - -
Q659Just as you’re watching it, seeing the interactions - - -
AYes, I know.
Q660- - - just see if it prompts anything.
ABut — nothing is being prompted in my mind.
Q661No, that’s okay. That’s okay.
AMy brother was very quiet. He was doubting whether it’s a good place and - - -
…
Q662Who?
AMOHAMED because he reckons that we should just, um, like, he — he doesn’t want to run and chase people and this and that. He reckons [doing] that it’s — it’s gunna slow us down because, um, obviously it’s gunna be packed, people running everywhere, we’re gunna lose each other. So he’s just suggesting other places.
…
Q682And that’s you with your back to the camera, is that right?
ACorrect.
Q683What does that look like to you?
ASo I — I totally zoned out at that point.
Q684So you make a motion with your arm.
AYeah.
…
Q685At [time stamp] eight forty-four twenty-five we are now. You just make a motion with your arm.
AI’ll look (laughing), yeah, I remember now. I was showing him — ’cause they’re all, like, just worried that everyone is running, what are we gunna do? And I’m [trying] to tell them it’s — it’s not hard to kill a person with a machete. It just takes one slice to the neck.
…
Q686So what were you doing?
ASo I showed him that. No, it was just a gesture.
Q687So can you just describe exactly what you did?
AIt’s — I just - - -
…
Q688Just keep it going. I’m just going to - - -
A- - - pretend that there’s a knife in my hand and I put it on his neck.
·Ibrahim Abbas was asked why it was important to do it as a group, ‘as opposed to you doing it on your own’ (Q715). He said:
And why is it important? So my goals, okay, were to cause as much chaos, destruction, fear, bloodshed, that was my goal and I believe that to achieve this goal I needed the group, a group that’s gunna listen and do as they’re told and so I thought in a group … we could do more, to put it simply.
·He expanded on this:
All right. The plan was not discussed often. What was discussed often is — is … how they feel about doing this. That’s the main thing that was discussed ’cause prior to planning — I can’t plan with people that are half-hearted. You understand?
Q728 Yeah.
ASo I wanted to make sure everyone was on the same page as me so that we could plan and have the same mindset, same heart and, you know, we’re all gunna do the same thing. It’s not like last minute someone’s gunna hesitate and then not do any — not do something and get us all in trouble and things like that. So that’s — most of the times when we’d meet up we’d discuss doubts. You know, this guy says my wife, this guy says, you know, I’m — I’m working and life is as good as it is — as it can get. So this is what everyone would be telling me, right and I’d — I’d tell them that, you know, this life is short, this life is temporary, we’re going to another world, blah, blah, blah and I’d try to release the doubt from their heart. Like, sometimes — sometimes, you know, it would work — sometimes it would work. Every day was a different thing though.
Q729What preachings or teachings did you direct them towards to, you know, like, to help them feel better - - -
AI would - - -
Q730- - - about this?
AWell, most of the time I would just … tell them hadith,[24] you know, say we got this, what the prophet said, what do you think it could mean? I tell them this verse of the Quran, what do you think that could mean? And I wouldn’t — it’s not like I’m forcing it into their throat. I would just try to challenge what they’re — what they’re — what they believe, you know.
[24]The record of the traditions or sayings of Muhammad, revered and received as a major source of religious law and moral guidance, second only to the authority of the Quran.
The EROI was tendered as an exhibit in the trial.
Defence counsel were given limited leave to ask leading questions.[25] The witness stated in cross-examination by senior counsel for the applicant that ‘Hamza did not prepare or plan a terrorist attack with me at all’. He also stated that the applicant never agreed to do a terrorist act nor planned for a terrorist act, and if he (Ibrahim Abbas) did anything to that end, the applicant was kept in the dark. He said that he did not try to get the applicant to agree with him, and that if the applicant was going to play a part, it would be as an unwitting victim.
[25]Pursuant to s 42(3) of the Evidence Act.
Analysis
It is beyond argument that, as at 2 December 2016, Chaarani, Mohamed and Ibrahim Abbas conspired to do an act or acts in preparation for, or planning, a terrorist act. They purchased or procured chemical substances which could be combined with other substances to produce explosives, as well as pipework and electrical wiring. They took steps towards manufacturing and testing an IED at Clonbinane. They met frequently and discussed their plans in coded language. The applicant at trial, and in this application, did not dispute his general interest in IS material as evidenced by his internet activity in the months prior to December 2016.
In our view, the applicant’s activities between 2 and 20 December 2016 were sufficient to satisfy the jury beyond reasonable doubt that he joined the conspiracy to do an act in preparation for a terrorist act in that period.
We have reviewed the evidence that surrounded his participation in the third, 2 December Clonbinane trip. As we have remarked, attendance on this occasion by itself may not be enough to establish participation in the conspiracy. It is conceivable that he went along out of curiosity, or as an information-seeking exercise, without actually participating in the impugned agreement. We consider this to be a possibility only and highly unlikely. The applicant’s brother, Chaarani and Mohamed were about to conduct the last of three highly criminal clandestine activities. In our view it was much more likely that they would not have allowed an interested bystander to witness their activities at Clonbinane; his presence strongly indicates that the applicant had been admitted into their terrorist circle.
Mohamed’s recorded conversation of 5:09 pm on 1 December 2016 provides some support for this. He expressed reservations to Ibrahim Abbas about his brother: ‘[B]ut I don’t trust your brother.’ This was an unusual remark if all that was proposed was that the applicant wished to attend a lesson at the Al Muntada Mosque. In our view the remark was more likely to be related to what was going to be discussed at the mosque — namely, the forthcoming third trip to Clonbinane. We have observed that later that day Mohamed seemed to have abandoned his reservations about the applicant: ‘[H]e’s got a good [doctrine/religious way] … same [doctrine/religious way] as me.’ And then the applicant travelled to Clonbinane.
Even if the applicant’s attendance at Clonbinane is insufficient by itself to establish that he was a party to the criminal agreement, in our view that attendance, when considered with subsequent events, establishes his participation beyond reasonable doubt. Hours after the men returned from Clonbinane, Mohamed searched the internet for a source of hydrogen peroxide. He ascertained that it could be purchased from Chemist Warehouse. He spoke to Ibrahim Abbas about the purchase. Ibrahim Abbas stated, ‘I’ll just come with my brother to your house.’ The men agreed to this and all three travelled to Chemist Warehouse Campbellfield. At no stage in this recorded telephone conversation did Mohamed express any reservations about the presence of the applicant in this exercise. As we have set out, at Chemist Warehouse it was the applicant and Mohamed who entered the store. Mohamed executed the purchase of the hydrogen peroxide with the applicant alongside. The applicant examined the 100 ml bottle during the purchase. This was an elaborate, labour-intensive exercise for the purchase of wart treatment solution, as the applicant maintained it was in his EROI. It is far more likely, in our view, that each of the attendees at Chemist Warehouse knew that they were there for something significant — the purchase of an important ingredient of a home-made bomb.
It will be recalled that immediately after the mobile phone call referred to in the paragraph above, Mohamed called Ibrahim Abbas back and asked him to procure two glass jars with lids. Two glass jars were photographed in the refrigerator of Mohamed’s house some time between 3 and 6 December, and on 4 December Mohamed told Chaarani in an intercepted phone call that he was ‘very disappointed’ — there was no improvement in ‘the yesterday thing’: ‘I’m opening the fridge, I’m like, far, same thing. Disappointed, bro. Very disappointed.’ It was open to the jury to conclude, and we conclude, that this conversation concerned a failed nefarious use of the hydrogen peroxide purchased at Chemist Warehouse.
It seems that the focus of the conspiracy moved towards the acquisition of firearms and other weapons after the failed attempt to construct an IED from the Chemist Warehouse purchase. There were no more trips to Clonbinane. As we have observed, on 8 December, Chaarani urged Mohamed to acquire a licence to shoot on Crown land. On 14 December, Mohamed viewed a Facebook advertisement for the sale of five lever action shotguns, and on the same day the applicant conducted several Google searches for information on obtaining a firearms licence and downloaded the relevant application form. By itself, this may appear innocuous enough but, in combination with the contemporaneous activities of Mohamed and Chaarani, it is some evidence that he was coordinating his activities with those of his co-accused. On 17 December he again downloaded the firearms licence application form and a print-out of it, or something identical, was seized from his home after his arrest. On 20 December Chaarani telephoned Sunbury Police and enquired about registering for a firearms course. We consider that it was open to the jury to conclude, and we conclude, that the applicant’s activities in this respect were part of coordinated activity of the combination in furtherance of the conspiracy. As part of this coordinated activity, on 21 December Chaarani and Ibrahim Abbas purchased machetes from ‘Boating Camping Fishing’ in Coburg and Mohamed purchased a further 700 Red Ramset cartridges at Bunnings Broadmeadows.
We have set out in some detail the activities of the four men in and around Federation Square on 20 December 2016 at [17] of these reasons. It was open to the jury to conclude, and we conclude, that the sole purpose of those activities at that place was to carry out reconnaissance for a terrorist attack. We reach these conclusions from the following combination of evidence:
·The activities of all co-accused, including the applicant, from at least the commencement of December 2016, as set out in these reasons.
·The intercepted telephone call of 20 December 2016 between Mohamed and Chaarani in which Mohamed stated, ‘We need to go to the city for a drive’, and ‘Bro, this is more important than anything else … [I]f you’ve got any plans, cancel because, by Allah, this is very important, very, very important. We’re running out of time.’
·
All four men met at HIYC later on 20 December 2016. They did not ‘train’ — they walked around the surrounding streets for
20 minutes and then drove to the CBD.
·The conduct of the group in the CBD, which was completely captured by CCTV, and which included Ibrahim Abbas making a chopping motion.
·No ice cream was purchased at any stage during this trip.
·Ibrahim Abbas’s admissions in his EROI and set out at [38] of these reasons, including from Q622–Q685.
·Ibrahim Abbas stated that the chopping motion was demonstrating to the others one slice of a machete to the neck. He stated that for his planned attack, he ‘needed the group … in a group, [they] could do more’. This evidence from the EROI was admitted both as a prior inconsistent statement and (should the jury wish to use it) as evidence of the truth of its contents. The judge in his charge gave a standard ‘prior inconsistent statement’ direction. He directed the jury that they may use any prior inconsistent statement that was admitted as ‘evidence of the facts asserted in the prior statement, even though it is inconsistent with what the witness said in court’.
Had the applicant not been a party to the impugned conspiracy, in our view it is extremely unlikely that he would have been included in this reconnaissance operation, which was itself an act in preparation for a terrorist act. It is equally unlikely that the applicant would have been part of the activities we have reviewed from 2 to 20 December 2016 had he not joined the impugned criminal agreement. Put another way, the fact that he was invited on the reconnaissance operation is strong evidence that the co-accused believed he had joined the conspiracy. The fact that he went with them (along with all the other evidence of his December activities) is strong evidence that they were correct; in fact he was by then a trusted
co-conspirator.
Whilst the prosecution case against the applicant covered a narrower period than the cases against his co-accused, it was a powerful case nonetheless. We consider there to be no reasonable alternative hypothesis consistent with innocence. In particular, the jury could comfortably reject the following:
(c) That the trips to Clonbinane (a lengthy round trip) were for the purpose of a few minutes of off-road driving.[26]
[26]Ibrahim Abbas claimed in his evidence at trial: ‘[W]e were going off road … [B]ecause it’s a small car, it’s a manual car, when you go off road you can drift … in it … and it’s … scarier, so there’s more thrill to driving in a small Holden Barina’.
(d) That the trip to Chemist Warehouse was for a wart treatment.
(e) That the applicant had recently been invited to go hunting with his boss.
(f) That on 20 December the four men drove to the CBD to buy some ice cream.
It follows from what we have said that this ground must be rejected. The evidence was not such that the jury was bound to have a reasonable doubt about the applicant’s participation in the offending. Our independent evaluation of the evidence confirms the jury verdict.
Ground 5
This ground disputes the judge’s decision to admit the plea of guilty of Ibrahim Abbas to conspiring to carry out acts in preparation for, or planning, a terrorist act, and his Honour’s subsequent ruling and direction to the jury that that plea could be used as evidence of an agreement between each of the co-accused, including the applicant, to do an act in preparation for a terrorist act.
As we have observed, after Ibrahim Abbas gave evidence at the applicant’s trial which ‘traversed’ statements he had made during his first EROI as well as the particulars of the charge to which he had pleaded,[27] the prosecutor sought to adduce evidence of Ibrahim Abbas’s guilty plea as evidence going to his credibility. The judge ruled that according to the provisions of the Evidence Act, and coherently with Power v The Queen,[28] the plea was admissible as evidence relevant for that purpose. His Honour subsequently ruled, and directed the jury accordingly, that by reason of s 60 of the Act the plea could also be used for a hearsay purpose, namely, as ‘some evidence’ of the fact it asserted — that there was an agreement between Ibrahim Abbas and the three accused (including the applicant) to carry out acts in preparation for a terrorist act. Section 60 provides, relevantly, as follows:
[27]The prosecution sought in advance, and was granted, leave under s 38 in advance to cross-examine Ibrahim Abbas, given that during his second police interview and during a Basha hearing in the applicant’s trial, he had made statements indicating that he sought to resile from some of the admissions made during that first EROI.
[28](2014) 43 VR 261; [2014] VSCA 146 (‘Power’).
Exception — evidence relevant for a non-hearsay purpose
(1)The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.
It is submitted under this ground that the admission of the plea and/or the subsequent ruling as to the application of s 60 caused a substantial miscarriage of justice to occur. It is convenient to consider the parties’ submissions as to each of these decisions in turn.
The parties’ submissions
The decision to admit the plea of guilty
The applicant contends that the judge’s decision to admit into evidence the fact of Ibrahim Abbas’s plea of guilty was erroneous and should have been prevented by the operation of s 137 of the Evidence Act, which provides as follows:
Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
It is contended that the judge erred when carrying out this assessment by overrating the plea’s probative value. The applicant submits that this miscalculation was caused by two discrete errors.
First, it is submitted that the judge weighed the probative value according to a wrong understanding of what the plea actually meant: that is, that it was an admission to entering into an agreement with each of his co-accused rather than at least one of them. The applicant urges the latter interpretation of the plea on the basis that that is all that would be required to make up the elements of the offence pleaded to. This understanding of the plea’s legal effect necessarily limits its probative value, the applicant argues, to that of ‘yet one more in a large catalogue of inconsistent prior representations’. That is, it was capable only of impugning the credibility of a witness who had made numerous inconsistent statements, and was therefore capable of rationally affecting the probability of a fact in issue only indirectly and in a diluted form. Once that limited probative value is weighed against what the applicant contends is its high prejudicial effect — its aptness to be misused in the very way the judge is said to have misinterpreted it, as evidence that Ibrahim Abbas had entered into an agreement with all three of the accused — the proper application of s 137 required the plea to be excluded.
In oral submissions, the applicant’s counsel alleged a second error in the judge’s approach to the s 137 assessment, which again led his Honour to weigh the probative value of the evidence too highly. It was submitted that in his ruling the order in which the judge dealt with, respectively, ss 60 and 137 indicates that when undertaking this balancing exercise his Honour incorporated the effect of s 60 in measuring the plea’s probative value. That is, he accorded the plea the combined probative value of both its use to undermine the credibility of Ibrahim Abbas and its use for hearsay purposes.
This approach, it is contended, is not permitted under the Act. It is said that, properly construed, s 60 only applies to evidence that has already been admitted. As s 137 prescribes an assessment to be made in considering whether evidence can be admitted, that assessment must necessarily take place before s 60 comes into operation to allow the use of evidence for a hearsay purpose. The evidence’s use as proof of an asserted fact could therefore not be taken into account when assessing its probative value for the purpose of s 137. By factoring in that other use as he did, the judge inevitably accorded the plea a much higher probative value than the marginal, indirect impact the applicant says it could have on any fact in issue as a piece of evidence going only to the credibility of a witness whose credibility could be effectively impugned by other evidence in the case.
This strictly staged approach to ss 137 and 60, the applicant submits, is a necessary implication of the statutory scheme because the alternative approach, whereby probative value would be weighed according to all purposes for which evidence might ultimately be used once admitted, would impermissibly undermine the operation of the hearsay rule, as well as render the s 137 assessment a foregone conclusion in nearly all cases. If s 60 was able to operate at the stage of making the s 137 assessment, so the argument goes, any piece of evidence that was prima facie admissible on the strength of even marginal relevance, but which posed a significant risk of unfair prejudice, would very often be admitted nonetheless due to the inflated probative value lent to it by s 60. If that were the case, it is submitted, the hearsay rule would seldom operate.
The respondent submits that a straightforward application of Power compels the conclusion that the plea was prima facie admissible as relevant to Ibrahim Abbas’s credibility. The respondent further submits that s 137 is no bar to that admission: while some danger of unfair prejudice is conceded in that the evidence could be misused by the jury, so much was acknowledged by the judge and his Honour (correctly, in the respondent’s submission) considered that this danger could be cured by appropriate directions. It is submitted that his Honour’s directions to the jury were so appropriate, namely, that the plea was ‘some evidence’ that Ibrahim Abbas had entered into an agreement with each of the accused; that they must keep the plea evidence in perspective, keep an open mind, not jump to conclusions and consider all evidence in the case; and that the plea went only to prove that Ibrahim Abbas believed he had an agreement with each of the accused, and it did not necessarily follow that such an agreement existed.
In response to the argument raised at the oral hearing about the necessity of a staged approach to ss 137 and 60, the respondent submitted that the applicant underweighted the probative value of the plea even as credibility evidence only. This was because the credibility of a ‘central witness in the Crown case’ was a ‘central issue in the case’. Thus, even if the s 137 exercise were conducted on the basis that the probative value be confined to the impact of the evidence upon Ibrahim Abbas’s credit, this was still highly probative to the prosecution case.
The decision that the plea could be used for a hearsay purpose
Further to the error alleged in the judge’s apparent incorporation of s 60 in the s 137 assessment, the applicant contends that the judge was wrong to apply s 60 to the evidence of the plea at all. The judge did so, the applicant submits, because his Honour wrongly applied Power. The applicant submits that Power maintains the common law rule that a bare plea of guilty cannot be adduced as evidence of a co-offender’s guilt, but holds that where a plea of guilty is admitted as credibility evidence and an agreed summary of facts from the plea hearing is also admitted, that factual summary can be treated as a previous representation of fact to which s 60 can be applied.[29]
[29]Citing Power (2014) 43 VR 261, 277–8 [60] (Redlich JA and Robson AJA); [2014] VSCA 146.
In contrast to those circumstances described in Power, in this case, the applicant submits, the bare plea of guilty was treated as a previous representation (that Ibrahim Abbas had entered into an agreement with each of the accused). This erroneous characterisation led the judge to (wrongly) apply s 60 to set aside the hearsay rule.
The respondent submits that the applicant reads Power wrongly; that case does not state that a plea of guilty is never in itself capable of constituting or containing a representation of fact. Whether or not it is so capable depends on the level of factual detail conveyed by the plea in the particular circumstances. Where, such as in this case, the charge pleaded to is particularised to the extent that the jury could conclude that the offender was making a factual representation, nothing said in Power prevents that plea being treated as a representation as to the truth of those particularised facts.
Further impediments to the use of the plea as evidence of the asserted fact
The applicant submits that even if Power does not prevent the application of s 60 to the plea, there were three ‘impediments’ other than the hearsay rule to its use in proof of the asserted facts. First, it is submitted, the plea constitutes an inadmissible opinion, to which s 81 of the Evidence Act does not apply, not being the opinion of the accused in the trial. It is argued that the plea was an opinion because it represents Ibrahim Abbas’s conclusion, based on the ‘concatenation’ of his interactions with various people over the period of the indictment and his knowledge of other evidence in the case against him, that the elements of the charged offence could be made out.[30]
[30]The applicant argued that this amounted to an opinion of Ibrahim Abbas in the terms described in Lithgow Regional Council v Jackson (2011) 244 CLR 352; [2011] HCA 36, where it was accepted that an ‘opinion’ (which goes undefined in the Evidence Act) could be defined as ‘an inference from observed and communicable data’: at 359 [10] (French CJ, Heydon and Bell JJ).
Secondly, and relatedly, it is submitted that any representation constituted by the plea expresses the conclusion of a layperson based on a legal standard, being the elements of the offence. Such a statement is considered to have no evidentiary value.[31]
[31]Grey v Australian Motorists and General Insurance Co Pty Ltd [1976] 1 NSWLR 669, 676 (‘Grey’).
Thirdly, it is submitted that any previous representation that the plea is capable of constituting would in essence be a summary of the effect of numerous previous interactions between Ibrahim Abbas and others. That is, the plea stands for his conclusion that an agreement had been reached with at least one or each of the accused (depending upon the preferred interpretation) gleaned from multiple interactions with them over the charged period. Such a ‘summary’ of the impressions left by multiple interactions is not expressly permitted by the Evidence Act to be admitted as evidence, which, the applicant contends in his written case, must mean that it is impermissible, given the Act’s express allowance, in certain circumstances, for the admission of a summary of documents in s 50.[32]
[32]This is expressed in a footnote to the applicant’s written case: ‘Cf Evidence Act s 50.’
The respondent submits that none of the three matters cited by the applicant impede the admission of the plea. First, the plea is not an expression of opinion but an assertion of fact: it is an admission to having engaged in certain conduct with a certain intent, which happened to comprise the elements of an offence. Secondly, the plea did not result from any legal analysis or application of any legal standard by Ibrahim Abbas: it is a statement by him that he engaged in the conduct particularised in the charge with the state of mind particularised in the charge. Thirdly, the respondent submits that the fact that the events the subject of the plea occurred over an extended period of time is irrelevant; this does not render the plea an impermissible ‘summary’ of events as characterised by the applicant.
Common law bar to use of the plea as evidence of the fact it asserts
Finally under this ground, the applicant submits that whether or not the plea could constitute a previous representation such as to engage s 60, and whether or not the three further ‘impediments’ to its admissibility were accepted, ‘clear and binding authority’, including Power,[33] states that a bare plea of guilty by a co-offender is not admissible in the case against an accused as evidence of the facts it purportedly represents. It is submitted that this principle is not affected by the acceptance in Power, outlined above, that if evidence is led of an agreed summary of facts relied upon at the plea in conjunction with the plea of guilty, in circumstances that permit an inference that the summary of facts is adopted, then that adoption of the facts may constitute evidence of the truth of those facts. This, the applicant submits, applies to the factual summary, not the plea itself;[34] the bare plea of guilty remains inadmissible in the trial of a co-offender as evidence of an asserted fact.
[33][34]Power (2014) 43 VR 261, 277 [56]; [2014] VSCA 146.
The respondent points out that the admissibility of any piece of evidence is governed by the Evidence Act. The authorities the applicant points to in support of his proposition that a bare plea is never admissible in the trial of a co-offender as proof of the asserted fact are relevant, but must be considered in light of the provisions of the Act. The relevance of those cases, it is submitted, is also tempered by their particular facts and the particular facts of the instant case. While the bare fact that a co-offender has pleaded guilty will often have no relevance at all to another co-offender’s trial, this may not be the case where the charge pleaded to is sufficiently particularised to give the plea some factual content. It is submitted that this is such a case.
Consideration
Meaning of the plea
The resolution of several of the issues disputed under this ground depends upon what the plea, as evidence in the applicant’s trial, can correctly be taken to mean: was Ibrahim Abbas admitting to entering into an agreement with each of the applicant and his co-accused (as contended by the respondent), or merely to at least one of the three men (as contended by the applicant)?
We consider that the respondent’s contended understanding of the plea must be correct. If the evidence led by the prosecution was merely the fact that Ibrahim Abbas had pleaded guilty to the offence as described in ss 11.5(1) and 101.6(1) of the Criminal Code, the applicant’s preferred reading would undoubtedly be correct. The evidence was, however, as the judge described it in his ruling, ‘Ibrahim Abbas’s plea of guilty and the context in which that plea was entered’. That context included the way the charge was framed and particularised on the indictment. The charge, as read out to Ibrahim Abbas during his cross-examination in the applicant’s trial, was expressed as follows:
Between the 21st day of October 2016 and the 22nd day of December 2016 Ibrahim Abbas at Melbourne and elsewhere in Victoria did conspire with Hamza Abbas, Abdullah Chaarani and Ahmed Mohamed to do acts including:
(a)purchasing chemicals, explosive substances, mechanical and electrical components for use in manufacture of improvised explosive devices;
(b) purchasing bladed weapons; and
(c)conducting reconnaissance of the Federation Square, Flinders Street Train Station and Saint Paul’s Cathedral precinct
in preparation for, or planning, a terrorist act.[35]
[35]R v Abbas (Rulings 1–40) [2019] VSC 855, [641] (Ruling 40).
Ibrahim Abbas agreed under cross-examination that this was the charge which was read to him at his arraignment, and that he had entered a plea of guilty at that time.[36] Given that this was the evidence — the fact of the plea and the specific charge pleaded to and its particulars, including the identification of the co-conspirators as Hamza Abbas, Abdullah Chaarani and[37] Ahmed Mohamed — the applicant’s preferred reading of the meaning of the plea evidence is unsustainable.
[36]While Ibrahim Abbas in his evidence at the applicant’s trial disputed that the charge as framed on the indictment was the conduct to which he was admitting guilt in entering his plea, it is this discrepancy which goes to the plea’s relevance as evidence as to his credibility.
[37]Not ‘or’.
Admissibility of the plea
We consider that, its meaning properly understood, the plea evidence was correctly admitted by the trial judge. The plea evidence was clearly prima facie admissible as evidence relevant to the issue of Ibrahim Abbas’s credibility.[38] Further, we consider that the judge correctly applied s 137. The plea evidence had high probative value. As evidence of a prior inconsistent representation, it was evidence which went directly to the credibility of Ibrahim Abbas, who, as the admitted instigator and lynchpin of the alleged conspiracy, was a critical witness on the issue of whether the applicant was a party to that conspiracy — the ultimate issue in the trial. Moreover, as it constituted a direct contradiction of the evidence Ibrahim Abbas gave in the trial on that issue, it was evidence of his credibility on that ultimate issue specifically, rather than of his credibility generally. It was as directly relevant as credibility evidence can be to the central issue of the trial, namely, the applicant’s guilt of the offence charged.
[38]Evidence Act ss 55–6.
As credibility evidence alone, then, the plea evidence was highly probative. The applicant’s characterisation of the plea evidence as having ‘limited’ probative value (at least in the case against him) rests upon his contended understanding of it — as meaning that Ibrahim Abbas had an agreement with at least one of the three co-accused, and not necessarily the applicant. In that case, the evidence would not necessarily contradict his later evidence on the central issue. As we have stated though, that reading must be rejected; the plea was a statement that Ibrahim Abbas conspired with each of the co-accused.
High probative value must still be measured against the danger of unfair prejudice, and such a danger was still posed by the plea evidence. The danger of unfair prejudice, however, did not rise to the level urged by the applicant, who cited as a chief danger that it ‘was prone to be misused (indeed, in the light of the directions given, it was bound to be misused) as evidence that Ibrahim Abbas had agreed with all three of the accused, rather than only at least one of the three’. Given our finding as to the meaning of the plea evidence, this would obviously not be a ‘misuse’ of it, and that ‘danger’ cannot be considered in the balancing exercise. We consider that the danger was that the jury would give the evidence too much weight in determining the issue of whether there had been an agreement between Ibrahim Abbas and each of the accused, and not take into account that it represented only his belief as to whether or not such an agreement existed, or that that belief had to be correct in respect of the applicant specifically in order to prove his guilt.
We agree with the respondent that that danger could be satisfactorily ameliorated by an appropriate direction to the jury as to how they could use the evidence. The judge directed the jury in the following terms:
How may you use the evidence of [Ibrahim Abbas’s] plea of guilty to conspiring with Hamza Abbas, Abdullah Chaarani and Ahmed Mohamed to do an act or acts in preparation for a terrorist act? There are two ways you may use that evidence. First, you may use it in relation to the assessment you make of his credibility and reliability. His plea of guilty for having conspired with the three accused is a version of events that he has previously given — that’s what it amounts to. And, because he has given a different version of events on a previous occasion to what he’s told you in his testimony, that there was no agreement between him and the three accused, you can use that in assessing whether he’s credible and reliable.
Second, you may use his previous version of events as some evidence of the asserted facts in that prior version of events, namely that he did enter into an agreement with each of the accused to do an act in preparation for a terrorist act, and I emphasise those words as some evidence.
You may not use his prior version of events constituted by his plea of guilty to conspiring with the accused for any other purpose than those two which I’ve just outlined.
You must be careful to keep the evidence of his plea of guilty in perspective. You must not jump to conclusions, you must keep an open mind and wait until you have heard all the evidence in this case and the arguments of counsel in their final address and my charge. You must consider all the evidence in deciding whether there was an agreement as alleged by the prosecution in this trial and that the particular accused you are considering was a party to that agreement.
In other words, even if you were to conclude that Ibrahim Abbas thought he had an agreement with each of the accused, that does not necessarily mean that there was an agreement at all. Similarly, even if you’re of the view that there was an agreement as alleged to which he was a party, his plea of guilty does not necessarily mean that a particular accused was a party to it.
The evidence of Ibrahim Abbas having pleaded guilty is just one piece of evidence for you to consider along with all the other pieces of evidence.[39]
[39]Emphasis added.
We consider that the above directions, particularly those portions emphasised, were well adapted to counter the danger of unfair prejudice posed by this evidence. The relative strength of the plea evidence in the context of the trial, and its natural limitations as proof of one side only of an inherently two-sided offence (conspiracy) were stressed. It must be assumed that the jury understood clearly what use they could make of the plea evidence and the weight they could fairly attribute to it.[40] In our view any danger of misuse of or overreliance on the evidence was amply mitigated to tip the s 137 assessment in favour of its admission.
[40]Gilbert v The Queen (2000) 201 CLR 414, 425 [31] (McHugh J); [2000] HCA 15.
Given our assessment of the s 137 balance on the strength of the plea evidence’s credibility purpose alone, it is unnecessary to consider the applicant’s submission as to the permissible role of s 60 in that balancing exercise. Whether or not the judge could accord the plea evidence the probative value of its credibility and hearsay purposes combined, or whether his Honour actually did approach s 137 in that way, the judge was correct to conclude that s 137 did not prevent its admission.
Application of s 60 to the plea evidence
The common law principle holds that a person’s plea of guilty is only evidence against that person and cannot be used as evidence of the guilt of their co-accused.[41] However, the rules of evidence are now governed in this respect by the provisions of the Evidence Act. The plea being admissible as relevant to the credibility of Ibrahim Abbas, it follows that, as a starting point, it may also be used, by operation of s 60, as proof of the facts it asserts — one of which is that Ibrahim Abbas agreed with the applicant to commit an act or acts in preparation for a terrorist attack. The only limitation on that operation is that s 60 by its terms, and as a matter of logic, can only be applied to evidence that can be regarded as a previous representation of fact. The applicant contends that, following Power, the plea cannot be regarded as a previous representation, which he says held that only an agreed summary of facts from the plea hearing adduced alongside a plea of guilty can be so regarded. We consider that that reading of Power is too narrow, and would follow only from an overly literal approach to the particular facts of that case.
[41]R v Moore (1956) 40 Cr App R 50, 53–4 (Lord Goddard); R v Cowell (1985) 24 A Crim R 47, 50 (Street CJ) (‘Cowell’); R v Fountain (2001) 124 A Crim R 100, 109–10 [27] (Charles JA); [2001] VSCA 200 (‘Fountain’).
In Power, in similar circumstances to the instant case, whereby leave was granted under s 38 for the prosecution to cross-examine the appellant’s (previously convicted) co-offender when it became apparent that his evidence at the appellant’s trial would contradict his record of interview and police statement, the co-offender’s bare plea of guilty was admitted as evidence going to his credit. During the cross-examination the prosecution summary of agreed facts that had been led on the co-offender’s plea was read out, and evidence was elicited from the co-offender that he did not dispute that that factual summary was consistent with his prior statements to police, and was not consistent with the evidence he now gave.
The Court concluded that legal principle required that the fact of the appellant’s co-offender’s plea on its own could be used as evidence going to his credit only, but that ‘[t]he plea of guilty in conjunction with the summary of agreed facts, constituted an “implied representation” … or a representation that could be “inferred from conduct” under the [Evidence Act]’,[42] and that combination of evidence therefore engaged s 60.[43]
[42]Power (2014) 43 VR 261, 267 [16](iv); [2014] VSCA 146
[43]Ibid 277 [59].
The applicant now contends that this conclusion carves out an exception to the general principle that a bare plea cannot be used as evidence of another person’s guilt in ‘those circumstances in which an agreed summary of from the plea hearing is also adduced, in which case the summary might be treated as a prior representation that could be relied upon for its truth, and thus as evidence of the guilt of the accused’, and those precise factual circumstances only. As we have said, we consider this to be an overly narrow approach to the application of case law. It is clear that that was the Court’s conclusion on the particular facts of that case, but that that conclusion flowed, as courts’ conclusions generally do, from a consideration of legal principle and the relevant legislative provisions and their application to those facts. The conclusion that the agreed summary of facts could be treated as a previous representation ‘when considered in conjunction with [the] plea of guilty’[44] followed from the consideration of the effect of that combined evidence and whether that met the requirements of s 60, not any unique character of an agreed
summary of facts.
[44]Ibid 277–8 [60].
Put another way, in Power the agreed summary provided the factual content to enable the course of conduct comprised of the plea and the witness’s apparent acquiescence to the factual summary[45] to qualify as a ‘representation’ in the terms of the Evidence Act, and to enable the jury to infer that a representation that those facts were true was intended by the person entering the plea.
[45]Ibid 280 [68].
The applicant’s argument proceeds on the assumption that the plea admitted in this case was a ‘bare plea’ because of the absence of an agreed summary of facts, and does not recognise the factual representations provided by the charge itself. In our view this assumption is erroneous. The assumption itself is based on the apparent misconception that the Court in Power treated only the agreed summary of facts as a previous representation, as distinct from the plea of guilty. Though the Court at times referred to the agreed summary as a factual representation in itself,[46] their Honours also referred several times to the previous representation constituted by the combination of the plea and the factual summary.[47] In our view there is no reason why the logic of Power cannot be applied to any evidence from which, when considered in combination with a plea of guilty, some factual statement or representation (other than the mere fact of the guilt of the person pleading) can be extracted.
[46]Ibid 277 [60], 280 [68].
[47]Ibid 267 [16](iv), 278 [60].
In this case, that factual content was provided by the way in which the charge was expressed on the indictment. The charge provided numerous particulars that amounted to expressions of fact; namely, that Ibrahim Abbas did particular acts and that he conspired to do those acts with particular named individuals. The charge was particularised to such a degree that it was well open to the jury to infer that, in entering a plea of guilty to that charge (which he agreed was read to him at the time of entering his plea), Ibrahim Abbas intended to represent that those particularised facts were true. Nothing in Power prevents the application of s 60 to the charge read out both to Ibrahim Abbas at his arraignment, and at the applicant’s trial in the presence of the jury. Its effect when combined with the evidence of the plea is analogous with that of an agreed summary of facts provided at a plea hearing as found by the Court in Power, and the judge did not impugn that principle in applying s 60.
‘Further impediments’
The applicant contends that, even if it is accepted that ‘the plea’ amounts to a previous representation by Ibrahim Abbas that he had agreed with each of the accused to do an act in preparation for a terrorist act, and accepting that s 60 thus operated to abrogate the hearsay rule, there were further ‘impediments’ to its admission as proof of its factual assertion. We do not agree that any of those proposed impediments exist.
First, the plea evidence was not an opinion. The respondent correctly, in our view, characterises it as an admission by Ibrahim Abbas that he had committed the conduct particularised in the charge. That admission is not a statement of his opinion that, were he to contest the charge, he would be found guilty; it is a statement of the fact that he did those things. That it could be inferred that his entering the plea was motivated by his judgment that, were he to go to trial, he could or even was likely to be found guilty, does not change the character of the representation itself as a fact that was within his knowledge.
For the same reasons, it follows that the plea evidence is not an expression of a conclusion based on a legal standard either. For Ibrahim Abbas to state that he did the things described in the particulars of the charge required no legal analysis of him in any sense; it did not require him to apply a legal standard to the facts known to him. The principle that ‘a party may not be asked to admit a conclusion depending upon a legal standard’,[48] such as whether conduct was negligent, or a person had testamentary capacity, is based upon the rationale that such a statement would be ‘by definition valueless’ in a trial of fact, given that the layperson would not be equipped meaningfully to apply the standard governing the conclusion[49] — such concepts clearly require legal training to draw any conclusion. Ibrahim Abbas was properly equipped to state whether or not he had agreed with the applicant and his co-offenders to do the acts listed in the charge. Were the applicant’s application to this case of the principle expressed in Grey to be accepted, it would lead to the absurd result that pleas of guilty (or indeed of not guilty) would be unable to be received by any court, as any plea would amount to the accused’s ‘legal’ judgment that the elements of the charged offence were met.
[48]Grey [1976] 1 NSWLR 669, 676 (Glass JA).
[49]Ibid.
Finally, the applicant’s submission that the plea evidence is inadmissible as a ‘summary of the effect of the interactions between Ibrahim Abbas and others over the charged period’ must be rejected. The submission appears to rely on an inference that, due to the express provision made in s 50 of the Evidence Act for a summary of evidence contained in documents to be admitted, a ‘summary’ of any other form of evidence must not be intended to be admissible.
Section 50 reads relevantly as follows:
50 Proof of voluminous or complex documents
(1)The court may, on the application of a party, direct that the party may adduce evidence of the contents of 2 or more documents in question in the form of a summary if the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question.
That provision is clearly directed towards providing a practical means of receiving relevant evidence that it would otherwise be impractical to receive. It is a machinery provision, not an admissibility provision. It pragmatically acknowledges the frequent occurrence that documentary firsthand evidence is spread across an impractically large volume of documents. To characterise a person’s expression of their belief that they had agreed with another person to do a specific act or acts a ‘summary of the effect of … interactions’ because that belief was formed over a period of time requires a tortured analogy. The circumstances that s 50 addresses and the circumstances of the instant case are in no way parallel or correlative; there is no asymmetry in the Act attributable only to some pointed parliamentary silence on the admissibility of ‘a summary of, or conclusion drawn from, a series of interactions with various people’. Parliament made no express provision for the reception of such evidence because it is an unnatural and unlikely way to conceive of such evidence.
Conclusion on ground 5
For the reasons we have outlined, we conclude that the judge did not err in admitting the evidence of the plea. It was clearly relevant evidence going to Ibrahim Abbas’s credit, and it was open to the judge to conclude that its probative value was not outweighed by its potential prejudicial effect, if appropriate directions were given to the jury, and we consider that appropriate directions were given. Further, the judge did not err in applying s 60 to the plea evidence once it was admitted, given the factual representation conveyed by the charge as framed on the indictment.
Nothing said in Power, nor any common law principle, prevents the application of s 60 to the plea. While it remains the case that a bare plea alone cannot be adduced as evidence of a co-offender’s guilt, that is not what occurred in this case. What distinguished a ‘bare plea’ from the combination of a plea and an agreed summary of facts in Power was the capacity to convey a factual representation beyond the fact of guilt of the charged offence — it was that capacity that engaged s 60. That reasoning leads to the conclusion that a plea considered in circumstances where the charge is framed with sufficient particularisation to convey such a factual representation, and where those particulars are also adduced, is not a ‘bare plea’ and is equally capable of engaging s 60.
Ground 1
Ground 1 complains of an error, or errors, in the judge’s directions to the jury in relation to the mental element of the offence of conspiring to do an act in preparation for, or planning, a terrorist act.
The judge in his charge directed the jury on the mental element they must find in order to convict as follows:
The second element [of the offence] focuses on the accused’s intention to agree … The second element is that the accused intended to enter into the agreement. You must be satisfied that the accused you are considering really meant to make or join the agreement and did not just appear to agree.
I remind you of what I said about this second element in my opening direction: a person intends to do something, such as entering into an agreement, if they mean to do it.
Further, the prosecution must prove that the accused’s intention was based on knowledge or belief of the essential facts which amount to the offence in question. Hence, in relation to each accused in this case the prosecution must prove that each accused knew or believed that they were entering an agreement to do an act or acts in preparation for, or planning, a terrorist act.
…
[I]t is not necessary for the prosecution to prove that each accused intended that a terrorist act or acts actually be carried out. The accused are not charged with conspiring to commit a terrorist act; they are charged with conspiring to do acts in preparation or planning for [a terrorist act].
A person might be quite ambivalent about whether a terrorist act should be carried out, but they could still be guilty of conspiring to do an act in preparation for, or planning, a terrorist act. Indeed, a person may not want the terrorist act to be carried out, but if they agree to do acts in preparation for, or planning, such an act, they could be found guilty, even though they hoped that the terrorist act would never occur.
Let me illustrate the point with a hypothetical example. Suppose someone agreed to do acts in preparation for a terrorist act for money. They may hope that no terrorist act ultimately occurs, but because they are hard up for money, they enter into the agreement anyway. They could be guilty of the alleged offence even though they had no intention of carrying out a terrorist act themselves, and indeed, hoped that one did not occur.
During their deliberations, the jury asked a question directed towards the intent required to make out the second element of the offence — that is, the mental element. After discussion with counsel, the judge gave the jury the following redirection:
The second question on your jury checklist concerns the second element of the charged offence, did the accused intend to enter the agreement. The prosecution must satisfy you beyond reasonable doubt that the accused you are considering really meant to enter into the alleged agreement and did not just appear to agree. A person may say or do something which makes it appear that they are entering into an agreement when that is not really the case. In order to actually agree they must make a conscious decision to agree.
The person must have turned their mind to the proposed agreement and deliberately entered into that agreement. Mere presence alone with others [who] may have intentionally entered into the alleged agreement would not suffice. A decision to join others in a particular act does not necessarily mean that the person agreed with the purpose for which others did the same act. You must consider, for example, whether the accused you are considering may have been led to believe that the acts were for some other purpose.
The person’s intention must be based on knowledge or belief as to the essential facts. In the present context that means that the accused you are considering must have known or believed that the agreement he was considering entering into was an agreement to do an act or acts in preparation or planning for something which at law amounts to a terrorist act or acts.
To prepare is to get ready for something; to plan is to develop a scheme of action, a way of proceeding. So you must be satisfied that the accused you are considering knew or believed that the act or acts to be done pursuant to the agreement were acts getting ready for a terrorist act or acts or were acts developing a scheme for the carrying out of a terrorist act or acts.
He does not need to know or believe that the preparatory acts are to be done in preparation [or] planning for a specific terrorist act. He does not need to know that agreeing to do such preparatory acts is itself a crime. As I’ve told you before, ignorance of the law is no excuse.
Finally, a person can intend or mean to enter an agreement to do acts in preparation for a terrorist act even though they don’t intend to carry out a terrorist act themselves or are indifferent as to whether a terrorist act is actually carried out by anyone. Indeed they may even hope that the terrorist act never occurs. But so long as they [know] or believe that they are agreeing to do acts which are getting ready for a terrorist act and deliberately enter into the agreement on that understanding, they have the necessary intention.
In everyday life there are many examples of people intending or meaning to enter into agreements to do acts in preparation or planning for something whilst having mixed or even negative feelings about that something. For example, parents may have mixed or negative feelings about the person their son or daughter has decided to marry. They may even think that the marriage will be a disaster and hope that it never eventuates, but they may nonetheless intend or mean to enter into an agreement with the young couple to make preparations for their wedding day and actually set about making those preparations.
So in summary, to prove the second element of the charged offence, the prosecution must satisfy you beyond reasonable doubt that the accused you are considering really meant to enter into the alleged agreement in the knowledge or belief that it was an agreement to do acts in preparation or planning for a terrorist act or acts.[50]
[50]Emphasis added.
The applicant cites the following alleged errors in the judge’s charge and redirection:
(g) The direction that it was not an impediment to conviction if the jury found that the accused either did not actively want or positively did not want the planned terrorist act to occur.
(h)
The proffering of examples of analogous situations to that in which a person could be positively opposed to a terrorist act occurring and yet be guilty
of the offence.
(i) The direction that ‘to prepare is to get ready for something’ and that if the accused ‘knew or believe[d] that they [were] agreeing to do acts which [were] getting ready for a terrorist act and deliberately enter[ed] into the agreement on that understanding, they [had] the necessary intention’.
(j) The failure to direct the jury that an act in preparation for a terrorist act must be an act that is intended ‘to advance the commission of a terrorist act’, and that the offence requires that the accused ‘intended that an act be committed which would advance the commission of a terrorist act’.
The applicant’s contention that these aspects of the judge’s charge are errors rests on his contention that ‘the attitude of the offender towards the commission of a terrorist act is at the heart of the substantive offence of doing an act in preparation for a terrorist act’. We do not accept that contention.
The ‘substantive offence’ is created by s 101.6(1) of the Criminal Code,[51] which provides that a person commits an offence if that person does any act in preparation for, or planning, a terrorist act. The respondent correctly submits that the elements of the substantive offence can be straightforwardly drawn from the law that creates it. The physical element of the offence is the doing of an act in preparation for, or planning, a terrorist act. That physical element consisting of conduct, the relevant mental or fault element for the offence is intention.[52] As was said in R v LK,[53] ‘[u]nder the [Criminal] Code, fault elements apply to physical elements of an offence’, and the Code does not contemplate the application of a fault element of an offence to anything other than a physical element of that offence.[54] As a matter of straightforward statutory construction, it is clear that the intention that the provision requires applies to the act done in preparation for or planning a terrorist act, and that act only. The contemplated terrorist act is not a part of the physical element of the offence; that the terrorist act is contemplated (or prepared for or planned) is simply the condition necessary to render the described act a criminal act.
[51]While the applicant and his co-offenders were charged with conspiracy to do acts in preparation for, or planning, a terrorist act, by the combined operation of ss 11.5(1) and 101.6(1) of the Criminal Code, this ground turns on the elements of s 101.6(1), and it is convenient to confine our consideration to what those elements require.
[52]Criminal Code s 5.6(1).
[53](2010) 241 CLR 177.
[54]Ibid 232 [132] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The applicant submits that the language of s 101.6(1), in its ‘ordinary meaning’, requires that the criminal act is done ‘in order to advance the commission of a terrorist act’. He cites in support of this construction the statements of this Court in Dacre v The Queen[55] and Fattal v The Queen[56] that, to be properly characterised as preparatory to another act, conduct must be ‘sufficiently connected with — in the sense of being directed towards — the commission of that future offence’[57] or ‘of a nature which is connected with or otherwise calculated to advance preparation for the commission of a terrorist act’.[58] These statements describe the connection between the act comprising the offence and the contemplated terrorist act that is required in order for it to be properly characterised as ‘in preparation for, or planning’. They have no bearing on any mental state it must be shown that the accused held towards the commission of the terrorist act in order to make out the offence. All that these statements from Dacre and Fattal identify is the character of the act comprising the offence, in that it must be done because someone had a purpose of carrying out a terrorist act. Whether or not that terrorist act was the offender’s purpose is immaterial to the proof of the offence.
[55](2018) 57 VR 285; [2018] VSCA 150 (‘Dacre’).
[56][2013] VSCA 276 (‘Fattal’).
[57]Dacre (2018) 57 VR 285, [33] (Maxwell ACJ); [2018] VSCA 150.
[58]Fattal [2013] VSCA 276, [111] (Buchanan AP, Nettle and Tate JJA).
The applicant suggests that the requirement for some causal or purposive connection between the offender’s preparatory act and the planned terrorist act imports into the offence a further fault element in relation to the latter act — this overlooks the self-evident truth that very often a plan or project involving multiple stages or preparatory steps will involve the voluntary input of multiple people with multiple differing purposes and motivations. People frequently knowingly and voluntarily (ie intentionally) engage in conduct that is calculated to bring about another person’s purpose though they have an independent motivation for doing so. The two impugned examples given by the judge of situations in which a person may intentionally do an act that they know to be preparatory to a future act or event that they nevertheless do not want to come about clearly illustrated this proposition. Both the example of the person who accepts money to perform the preparatory act and that of the dubious parents who nonetheless participate in their child’s wedding plans describe how people commonly intentionally engage, at the behest of others, in conduct although they are ambivalent about or even opposed to the ultimate purpose of that conduct. That is, their motivations (such as to gain financially, or to maintain familial peace) may differ from the goal which the conduct is ultimately calculated to further. The applicant’s only apparent complaint about these examples is that they illustrate a construction of the elements of the offence which he submits is wrong; in fact, they very ably illustrate the correct elements of the offence.
We also reject the applicant’s submission that the need to show that the accused intended the terrorist act to take place can be inferred from the drafting of the offence. It is convenient to again set out the relevant parts of the provision here:
101.6 Other acts done in preparation for, or planning, terrorist acts
(1)A person commits an offence if the person does any act in preparation for, or planning, a terrorist act.
…
(2) A person commits an offence under subsection (1) even if:
(a) a terrorist act does not occur; or
(b)the person’s act is not done in preparation for, or planning, a specific terrorist act; or
(c)the person’s act is done in preparation for, or planning, more than one terrorist act.
…
The applicant contends that the legislature’s ‘drafting approach’ to s 101.6, insofar as subsection (2) makes explicit that the offence extends to circumstances to which it already impliedly extends, indicates that, ‘had it been the intention of [P]arliament that the offence cover conduct that was not accompanied by a purpose that the act is for the purpose of, and is intended to advance, a terrorist act, the legislature would have made explicit provision for such circumstances’. The offence in fact was intended to be, and is, limited to conduct ‘accompanied’ by such a purpose. For the reasons set out above, it is not necessary, either by the words of the provision or as a matter of practical reality, that that purpose is the purpose or intention of the offender. This exercise in statutory construction does not advance the applicant’s argument that it is.
In Lodhi v The Queen,[59] Spigelman CJ observed that Parliament had taken the unusual step of criminalising preparatory acts in response to the ‘particular nature of terrorism’.[60] These remarks also do not advance the applicant’s argument. He contends that his Honour’s statement that the creation of ‘preparatory’ offences evinces ‘the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do’[61] must be understood to mean that these offences, including s 101.6, require it to be established that the accused has decided to do something in the nature of a terrorist act. It is clear that his Honour was not considering s 101.6 or other ‘preparatory’ offences in the context of a conspiracy (s 11.5), in which case it would be necessary to consider whether it was intended to create offences where the offender and/or their co-conspirator(s) have not decided precisely what they intend to do. Further, nothing said in Lodhi indicates that his Honour’s assertion as to Parliament’s intention was intended to be an exhaustive statement of the kind of conduct that s 101.6 was designed to cover.
[59](2006) 199 FLR 303; [2006] NSWCCA 121 (‘Lodhi’).
[60]Ibid 318 [66].
[61]Ibid.
The applicant also cites, in support of his contention that the fault element in s 101.6 applies to the planned terrorist act, this Court’s acceptance in Fattal that different verdicts in respect of two co-accused each charged with conspiring to do acts in preparation for or planning a terrorist act were not inconsistent. The relevant acts in that case were each accused’s seeking of a fatwa in relation to the mooted terrorist act. One accused, Ahmed, was acquitted on the basis that he said he sought the fatwa for the purpose of obtaining a haram, or unfavourable, decision, and was recorded saying that he would not have carried out the terrorist act even if the decision were halal, or favourable. The other accused, Aweys, was convicted. He was recorded saying that, if the fatwa were halal, he would be involved in the planned attack. The Court held that the contrasting recorded evidence in relation to each accused was the ‘essential difference’ justifying the different verdicts.[62]
[62]Fattal [2013] VSCA 276, [37].
That distinction must be considered in the context of the Court’s remarks regarding ‘[t]he respect which the law justly assigns to juries’ and the stringent standard required to overturn a jury’s verdict on the basis of inconsistency as between co-accuseds: the court must be satisfied that ‘the two verdicts cannot logically stand together, in the sense that no reasonable jury applying their mind properly to the facts of the case could arrive at the same conclusion’.[63] The Court did not comment on the impact the differing attitudes of the two co-accused towards the mooted terrorist act could have on whether the elements of the offence were made out in any more detail than that it was ‘a fundamental point of distinction which, without more, would have justified the different verdicts returned against each man’.[64] The jury may have distinguished the co-accused on the basis of the recorded evidence because Ahmed’s clear declaration that he would not participate in the terrorist act regardless of the nature of the fatwa meant, in their minds, the request did not constitute an act in preparation for or planning a terrorist act. That is, the physical element of the offence was not made out, before considering the fault element.
[63]Ibid [36].
[64]Ibid [37].
Without any statement from the Court of Appeal as to whether this would be justified, or indeed, any specific remark at all about how, in their Honours’ view, the contrasting evidence could precisely ‘[justify] the different verdicts’, the rejection of the ground of appeal cannot be regarded as a definitive statement on the elements of the offence. It is clear that the Court, in the spirit of deference to the jury’s fact-finding role, did not seek to scrutinise the basis of the jury’s distinction between the two accused any further than to satisfy themselves that the verdicts could ‘logically stand together’. It follows that, to the extent that the applicant contends that Fattal is authority for the proposition that an accused’s intention to advance the terrorist act is integral to proof of this offence, that proposition would be incorrect, as a matter of simple statutory construction.[65]
[65]See above [101].
Once the applicant’s contention that the required intention applies to the commission of the terrorist act is rejected, his complaints about the judge’s directions fall away. His complaint in relation to his Honour’s explanation to the jury that ‘[t]o prepare is to get ready for something’ is based on the submission that this alternative phrasing ‘fails to sufficiently convey the necessary intent to advance the commission of a terrorist act, because a person may “get ready for” an event without positively intending to advance the occurrence of that event’. That direction, as we have explained, does not depart from the elements of the offence in any way.
For the same reason, the complaint that the judge failed to direct the jury that an act in preparation for a terrorist act ‘must be an act that is intended to advance the commission of a terrorist act’, and that the offence requires that the accused ‘intended that an act be committed which would advance the commission of a terrorist act’ is without substance. The first phrase incorrectly states the elements of the offence; the second is simply a reformulation of the elements of the offence. As stated in Dacre and Fattal, the words ‘advance the commission of a terrorist act’ are implied by the words of s 101.6(1); they do not express any additional, necessary element. There is nothing to require the judge to direct the jury in those terms.
Conclusion
There is no merit to proposed grounds 1, 2 or 5. Leave to appeal out of time is refused.
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R v Hillier (2007) 228 CLR 618, 637 [46] (Gummow, Hayne and Crennan JJ); [2007] HCA 13;
R v Baden-Clay(2016) 258 CLR 308, 324 [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ); [2016] HCA 35 (‘Baden-Clay’).
The applicant also cites the principle stated by Tonge (1662) 6 St Tr 225: ‘A man’s confession is evidence only against himself and not against his accomplices’, as well as Cowell (1985)
24 A Crim R 47, 49–50 (Street CJ); Fountain (2001) 124 A Crim R 100, 109–11 [27]–[30] (Charles JA); [2001] VSCA 200; Andelman v The Queen (2013) 38 VR 659, 670 [51]–[52] (Maxwell P, Weinberg and Priest JJA); [2013[ VSCA 25; Ruffin v Western Australia [2015] WASCA 127, [84] (Buss JA).
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