Dirani v The Queen

[2021] NSWCCA 202

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Dirani v R [2021] NSWCCA 202

Hearing dates:

26 March 2021

Decision date:

27 August 2021

Before:

Bathurst CJ at [1];
Price J at [140];
N Adams J at [416]

Decision:

(1)   To the extent necessary, grant the applicant leave to appeal against his conviction.

(2)   Appeal allowed.

(3)   Quash the conviction and order that there be a new trial.

Catchwords:

CRIME – appeals – unreasonable verdict – direct and circumstantial evidence – whether the whole of the evidence gave rise to reasonable explanations other than the applicant’s guilt

CRIME – appeals – appeal against conviction – miscarriage of justice – expert opinion evidence – where expert opinion evidence was mere speculation – where evidence plainly was not an expert opinion – where opinion of the expert did not involve the application of any expert skill and judgment

CRIME – appeals – objection to tender of evidence – where evidence constituted an admission for the purposes of s 87 of the Evidence Act 1995 (NSW) – whether tender of evidence was unfair – forensic decision

CRIME – appeals – appeal against conviction – application of proviso – miscarriage of justice – proviso not applied

Legislation Cited:

Criminal Appeal Act 1912 (NSW)

Criminal Code (Cth)

Evidence Act 1995 (NSW)

Cases Cited:

Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42

CA v R [2017] NSWCCA 324

Campbell v R [2014] NSWCCA 175

Commonwealth v Helicopter Resources Pty Ltd [2020] HCA 16; (2020) 377 ALR 191

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21

EM v The Queen (2007) 232 CLR 67; [2007] HCA 46

Haines v R [2018] NSWCCA 269

HG v The Queen (1999) 197 CLR 414; [1999] HCA 2

Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kalbasi v State of Western Australia (2018) 264 CLR 62; [2018] HCA 17

Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317

Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28

Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

R v Birks (1990) 19 NSWLR 677

R v Dirani (No 29) [2019] NSWSC 64

R v Dirani (No 3) [2018] NSWSC 882

R v Dirani (No 4) [2018] NSWSC 888

R v Dirani (No 6) [2018] NSWSC 891

R v Kingswell (Supreme Court (NSW), Smart, Studdert and Hidden JJ, 2 September 1998, unrep)

R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121

Rogerson v R [2021] NSWCCA 160

Shepherd v The Queen [1990] 170 CLR 573; [1990] HCA 56

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50

The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13

Velveski v R [2002] HCA 4; (2002) 76 ALJR 402

Vickers v R [2006] NSWCCA 60; (2006) 160 A Crim R 195

Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Mustafa Dirani (Applicant)
The Crown (Respondent)

Representation:

Counsel:
TD Anderson with S Talbert (Applicant)
L Crowley QC with M Kalyk (Respondent)

Solicitors:
Fourtree Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2015/335067

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Date of Decision:

14 March 2019

Before:

Johnson J

File Number(s):

2015/335067

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Mustafa Dirani, was convicted in the Supreme Court of conspiracy to do acts in preparation for a terrorist act, contrary to ss 11.5(1) and 101.6(1) of the Criminal Code (Cth). He was sentenced to a term of imprisonment of 28 years with a non-parole period of 21 years. He sought leave to appeal against his conviction and sentence.

It was alleged that the applicant conspired with Raban Alou, Milad Atai and others to do acts in preparation for a terrorist act. The terrorist attack was carried out by Farhad Mohammad on 2 October 2015 at the NSW Police Headquarters in Parramatta. Curtis Cheng, a civilian employee with the NSW Police Force, was murdered during the attack. The relevant act was obtaining a gun to give to Farhad Mohammad to enable him to kill an innocent civilian.

A substantial amount of evidence was tendered in the case. This included evidence about conversations between the applicant and Mr Alou which had not been recorded. It was unknown whether the applicant and Mr Alou had discussed the conspiracy during these conversations.

Other evidence included opinion evidence from a police officer (“CIN 1877”) about alleged counter-surveillance techniques used by the applicant. CIN 1877 had expertise in the field of surveillance and counter-surveillance.

Further evidence was of a recorded conversation (“the 1:53 pm conversation”) between the applicant and Mr Alou. At the first trial, the applicant and the Crown tendered a transcript of this conversation, which included the word “Parra”. However, at the second trial (the subject of the appeal), the applicant tendered a version which substituted the word “Parra” for “Kawa” (the name of Mr Alou’s brother). The trial judge held that the transcript tendered constituted an “admission” for the purposes of s 87 of the Evidence Act 1995 (NSW) as to the word used in the conversation being “Parra”, and that the evidence was admissible.

The applicant appealed his conviction on a number of grounds. The first ground was that the verdict was unreasonable and could not be supported by the evidence. The second was that the Crown impermissibly invited the jury to speculate in its closing address about the contents of the unrecorded conversations. The third was that the trial judge erred in permitting CIN 1877 to give expert evidence of his opinions as to the applicant’s manner of driving on the day of the terrorist attack. The fourth was that the trial judge erred in permitting the Crown to tender an ISIS publication, in circumstances where the applicant had never seen the publication. The fifth was that the trial judge erred in permitting the Crown to tender the applicant’s version of the 1:53 pm conversation from the first trial. The other grounds related to the sentence appeal.

The Court of Criminal Appeal unanimously allowed the appeal on the third ground, quashed the applicant’s conviction and ordered a new trial. As the Court determined to uphold the applicant’s appeal against his conviction, it was not relevant to consider his appeal against sentence.

Ground 1: Unreasonable verdict

The applicant contended that there was a lack of evidence from which the jury could find that various elements of the offence were proved beyond reasonable doubt. The question for the Court was whether, upon an examination of the whole of the evidence, the Court could be satisfied that the jury acting rationally ought to have entertained a reasonable doubt as to the applicant’s guilt: [6] (Bathurst CJ), [188]-[191] (Price J), [419] (N Adams J).

The Crown case relied on direct and circumstantial evidence. The applicant’s intention and belief had to be proved by the Crown by inference, which required more than mere conjecture: [6] (Bathurst CJ), [197]-[200] (Price J), [419] (N Adams J).

Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42; The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13; Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28, referred to.

Contrary to the applicant’s contention, the verdict was not unreasonable having regard to the evidence. The jury’s obligation was to take all of the evidence together when considering it. The whole of the evidence did not give rise to reasonable explanations other than the applicant’s guilt. As such, the Court was not satisfied that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of the applicant’s guilt: [6] (Bathurst CJ), [402]-[413] (Price J), [419] (N Adams J).

Ground 2: Invitation by the Crown for the jury to speculate

The Crown did not invite the jury to speculate that the applicant and Mr Alou discussed the conspiracy during the unrecorded conversations. It was not challenged that the Crown was entitled to respond to the defence proposition that there were no communications other than those which had been recorded. The Crown did not impermissibly go outside the trial judge’s ruling nor invite impermissible speculation: [19]-[25] (Bathurst CJ), [140] (Price J), [417] (N Adams J).

Ground 3: Expert opinion evidence – surveillance and counter-surveillance techniques

Whether expert opinion evidence is admissible is governed by the Evidence Act 1995 (NSW). While expert evidence is not inadmissible merely because it is about a matter of common knowledge, the opinion of the expert must still be drawn wholly or substantially from the expert’s specialised knowledge based on his or her training, study and experience: [72]-[74] (Bathurst CJ), [140] (Price J), [417] (N Adams J).

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305; Velveski v R [2002] HCA 4; (2002) 76 ALJR 402, considered.

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21; Campbell v R [2014] NSWCCA 175, referred to.

CIN 1877 had specialised knowledge in surveillance techniques. His description of surveillance techniques was based on his knowledge, skill and experience, and was relevant to assist the jury in their consideration of the activities of the applicant on 2 October 2015: [77]-[78] (Bathurst CJ), [140] (Price J), [417] (N Adams J).

However, other evidence given by CIN 1877 was inadmissible. Some evidence he gave was a mere description of what occurred and was not based on any expertise. Other evidence he gave was speculation, or plainly was not an expert opinion. The evidence he gave did not involve the application of any expert skill and judgment, nor did CIN 1877 identify the expertise on which he based his conclusions. This ground of appeal was made out: [79]-[95] (Bathurst CJ), [140] (Price J), [417] (N Adams J).

R v Kingswell (Supreme Court (NSW), Smart, Studdert and Hidden JJ, 2 September 1998, unrep), distinguished.

Ground 4: Tender of evidence – ISIS publication

There was no error in the tender of the ISIS publication. The document was not tendered for a hearsay purpose. It was relevant as rationally affecting the probability that the act was a terrorist act: [103]-[106] (Bathurst CJ), [140] (Price J), [417] (N Adams J).

Ground 5: Tender of evidence – Applicant’s version of the 1:53 pm conversation

The trial judge did not err in allowing the Crown to tender the applicant’s version of the 1:53 pm conversation from the first trial: [124]-[132] (Bathurst CJ), [140] (Price J), [417] (N Adams J).

The applicant’s lawyers in the first trial who tendered the transcript had authority to make the statement, and did so on the applicant’s instructions: [126] (Bathurst CJ), [140] (Price J), [417] (N Adams J).

Commonwealth v Helicopter Resources Pty Ltd [2020] HCA 16; (2020) 377 ALR 191, referred to.

The evidence was not unfair within the meaning of s 90 of the Evidence Act. The length of time between the conversation and the preparation of the

transcript did not make it unfair. It was also not unfair because it was only directed to the credibility of the applicant: [127] (Bathurst CJ), [140] (Price J), [417] (N Adams J).

EM v The Queen (2007) 232 CLR 67; [2007] HCA 46, referred to.

The fact that the effect of the admission was to require the applicant to make a forensic decision as to whether to give an explanation did not make the tender unfair: [129] (Bathurst CJ), [140] (Price J), [417] (N Adams J).

R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121; Haines v R [2018] NSWCCA 269, referred to.

The proviso

Since ground three has been made out, for the proviso in s 6 of the Criminal Appeal Act 1912 (NSW) to apply, it is necessary for the Crown to satisfy the Court that no substantial miscarriage of justice has actually occurred if the appeal is to be dismissed: [133] (Bathurst CJ), [414] (Price J), [418] (N Adams J).

In addressing this issue, it is necessary to consider the nature and effect of the error. The fundamental question is whether there was a miscarriage of justice. Some errors will establish a substantial miscarriage of justice, even if the appellate court considers the conviction was inevitable: [134]-[136] (Bathurst CJ), [414] (Price J), [418] (N Adams J).

Kalbasi v State of Western Australia (2018) 264 CLR 62; [2018] HCA 17; Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28, considered.

Here, a substantial miscarriage of justice did occur, and the proviso should not be applied. It is impossible to assess the extent to which the jury took the tainted evidence of CIN 1877 into account in reaching its conclusion: [137]-[138] (Bathurst CJ), [414] (Price J), [418] (N Adams J).

Judgment

1. BATHURST CJ: Mustafa Dirani (the applicant) was charged on an indictment dated 19 December 2018 that between 6 August 2015 and 2 October 2015, he conspired with Raban Alou (Mr Alou), Milad Atai (Mr Atai) and others to do acts in preparation for a terrorist act contrary to s 11.5(1) and s 101.6(1) of the Criminal Code (Cth).

2. Following a trial by jury, the applicant was convicted of the offence on 14 March 2019. On 9 August 2019, he was sentenced to a term of imprisonment of 28 years with a non-parole period of 21 years.

3. The applicant has sought leave to appeal against his conviction and sentence on the following grounds:

“1.   The verdict is unreasonable and cannot be supported by the evidence.

2.   That the Crown impermissibly invited the jury to speculate in its closing address that unrecorded conversations and interactions between the applicant and the co-conspirators could have been used to discuss the conspiracy.

3.   That his Honour erred in permitting CIN 1877 to give expert evidence of his opinions as to the applicant’s manner of driving on 2 October 2015.

4.   That his Honour erred in permitting the Crown to tender issue 12 of the ISIS publication known Dabiq (Ex L) in circumstances where the applicant did not have a copy in his possession and had never seen or obtained a copy of the magazine.

5.   That his Honour erred in permitting the Crown to tender the applicant’s version of the 1.53pm car to car conversation from the first trial.

6.   That his Honour erred in reaching his assessment of the objective seriousness of the offending.

7.   That the sentence imposed by his Honour was manifestly excessive.”

4. I am of the opinion that the applicant should be granted leave to appeal, the appeal should be allowed, the conviction quashed and a new trial ordered. These are my reasons for reaching this conclusion.

5. Justice Price has set out the Crown case and the evidence led at the trial in considerable detail. What I have written below should be read in conjunction with that material.

Ground 1: The verdict is unreasonable and cannot be supported by the evidence

6. Having considered the whole of the record, I agree for the reasons given by Price J this ground of appeal has not been made out.

Ground 2: The Crown impermissibly invited the jury to speculate in its closing address that unrecorded conversations and interactions between the applicant and the co-conspirators could have been used to discuss the conspiracy

Background

7. Prior to the commencement of the Crown’s closing address, Senior Counsel for the applicant foreshadowed a concern that unrecorded conversations between the applicant and Mr Alou would be suggested by the Crown to relate to the alleged conspiracy, submitting that such a suggestion was “entirely conjectural” and would invite the jury to draw inferences where such inferences could not be justified.

8. In response, the Crown stated that he would not be submitting to the jury that the jury could infer that the conversations which were not recorded were about any particular topic, rather to respond to the defence position that had been put to a number of witnesses that there were no communications other than those which had been recorded.

9. The trial judge made the following ruling:

“Senior counsel for the accused has made oral application for the Crown to be restricted in a particular respect in its closing address to the jury. The application, as recorded in the submissions in the transcript, is that the Crown ought not be able to make submissions to the jury that there may have been other communications, particularly between Mr Raban Alou and the accused, at other times than those times as to which there is positive evidence of such communications in the absence of any evidence to justify the inference that other conversations took place.

Senior counsel for the accused expanded on that application. The Crown responded, opposing the giving of such a direction to the Crown.

This is a case where there is a substantial volume of evidence of communications between the accused and other persons and, indeed, between other persons who are said to be involved in the alleged offences with which the accused is charged.

There is a substantial volume of telephone intercept and listening device evidence, as well as a substantial volume of evidence of electronic communications by the accused and others on the WhatsApp Bricks forum, together with other evidence.

In addition, there is video surveillance evidence of events on 2 October 2015 when the accused was present in Warwick Road, Merrylands, and at the Merrylands Oval car park with Raban Alou when they had, on the face of it, conversations which were not recorded.

This is not a case where, for example, it could be said that in a period of a day absolutely everything that was said between certain people was intercepted so that one can say that there is nothing more that could have been said. The evidence shows that over a number of days there were movements, meetings, communications between persons, including the accused.

What the Crown seeks to submit is that on occasions there were other opportunities for contact and communication, including, for example, what the accused and Mr Alou apparently said to each other in the street in Warwick Road, Merrylands, and whilst sitting on a wall in the Merrylands Oval car park.

The Crown is not seeking to submit to the jury that particular things were said on particular occasions by or to the accused, but it is not the case that it can be said that there was no opportunity for contact, communications between the accused and others, in what are important periods in this trial. The Crown has pointed as well to some evidence of Wickr, which apparently was a facility available to the accused which allows the deletion of material. That is, as I recall the evidence, as far as that evidence goes.

It is open to the Crown, in my view, to submit to the jury that there were other opportunities for communications and to remind them of the evidence concerning Wickr. That is for the purpose of seeking to rebut a submission that may be made for the accused that the totality of the communications between the accused and others is effectively before the jury and if they do not have it in evidence, then it did not or could not have happened.”

10. No challenge was made to the ruling on the appeal.

11. Thereafter, the Crown addressed the jury. Of relevance are the following remarks:

“Members of the jury, before I move from the facts I want to just say something very briefly in relation to what I expect will be said by Mr Tedeschi concerning the police holdings concerning recorded telephone conversations.

I expect it will be submitted to you, ‘Look, you have all of the recorded telephone conversations, you know everything that was said.’ I suspect it will be suggested to you that because you have everything and there is an absence of anyone saying the word ‘gun’ or ‘Farhad’ to Mr Dirani, or ‘2 October in Charles Street’, that from the absence of that being recorded, it simply wasn't said; Mr Dirani wasn't told any of those things.

Firstly, can I say, the 1.53 conversation indicates that he was told some things. The ‘thing’, the ‘who’ and the ‘when’. And then told the ‘where’. So he was told some things in those coded conversations.

I just want to make this submission to you in relation to the police holdings about what was said. We know that there are lots and lots of conversations that aren't recorded. Let's just deal with one of them. Stocklands Mall, Merrylands. We know that there is some communication about meeting up there. We know that there is some communication afterwards that Mr Dirani bought some shoes, apparently, and some supplements.

You don't leave your common sense at home when you become a member of the jury. I want to submit to you that it is blindingly obvious that buying shoes and supplements is not mutually exclusive from having a chat with somebody. That is, if two people are in a mall together, it doesn't mean that you are only there to buy things and you don't talk. You can infer that Mr Alou and Mr Dirani, when they were in that mall, spoke to one another. We know that they spoke to one another outside because the police saw their mouths moving in the car park before they walked to the mall.

We don't have a recording as to what was said in that mall or at any of the other meetings when they were away from their cars and not on their phones. So I'm not going to be submitting to you, ‘Ahah, at that meeting the word 'gun' was said’, because there is no evidence of it. But, equally, you can infer from the timing of that meeting that Mr Alou wanted to meet with Mr Dirani. Mr Dirani bought shoes for his own feet, not for Mr Alou's. He bought supplements for himself, not for Mr Alou. Why is Mr Alou there? Because he wants to meet with him. The meeting was important, between Alou and Dirani. The location, it seems, wasn't that important. There was some discussion of it, ‘Well, where do you want to meet?’ Eventually, they decided Stocklands Mall, Merrylands.

I'm telling you all of that for this reason: don't be led into thinking that that meeting was only about shoes and supplements and that they discussed nothing else. We simply don't know. But you can infer, the Crown says, from the fact that this crescendo of activity was building up, you can infer from the fact that Mr Alou was under huge pressure at that time to get everything that he needed into the hands of Farhad Mohammad shortly after Shadi left the country, you can assume that this was at the very forefront of his mind.

The same for the discussion on the wall at Merrylands Oval. We don't know what was said and I can't submit to you that at that time the word ‘terrorism’ was said or the word ‘gun’ was said or the word ‘Farhad’ was said. We simply don't know what was said. But we do know they spoke. And in the context of what happened with Mr Alameddine, in the context of this crescendo, in the context of what Mr Alou was focused on at that point in time, you can infer that there was some discussion that went on there that required them to move away from the cars.

Members of the jury, we also know, don't we, that Mr Dirani not only had this application, Wickr, but he encouraged other members of the Bricks group to download Wickr, and we know that Wickr is one of those applications where the messages can be set so that messages are automatically deleted after a period of time.

Now, there is no evidence to suggest that Mr Alou or Mr Atai downloaded Wickr. But we do know that Mr Dirani had it. We do know that Mr Dirani encouraged others to use it. We can infer from that that there are ways for people to communicate with one another that the police simply cannot see after the event because the message evaporates after a period of time.

We also know, don't we, that there are lots of opportunities for face-to-face meetings that the police don't even know about. The police aren't recording mouths moving up and down; certainly not recording the voices. There are lots of opportunities. In the lead-up to 2 October, before the surveillance cameras are following these people and pointing at these people, lots of opportunities. Macquarie University, we know, was one such meeting.

So although the police have done an extraordinary job - an extraordinary job - in relation to this investigation, we don't know everything that was said. It simply cannot be submitted to you that there is evidence that the word ‘gun’ was never said, the word ‘terrorism’ was never said and the words ‘Farhad Mohammad’ were never said.”

12. The trial judge early in his summing-up told the jury that it was important that the jury did not speculate or guess. His Honour also gave the following specific direction:

“The Crown submitted that although there were many recordings in this case, not everything was recorded, so you need to be careful with submissions concerning whether there were opportunities for the accused and others to speak about matters. You must, of course, have regard to the evidence in the trial in reaching a verdict. I said to you yesterday you must not speculate about matters, and I remind you of that with respect to that issue.

You were reminded of the Wickr aspect, that the accused apparently had a Wickr application which had a capacity to delete. There is no evidence that Alou and Atai had such a facility.”

13. It should be noted that no objection was taken of the Crown’s address nor any further directions sought.

The submissions

14. Counsel for the applicant referred to the submissions by the Crown concerning the meeting which took place at Stocklands Mall. It was accepted the Crown was entitled to say to the jury that they should not speculate into thinking the meeting was only about shoes and supplements and that they discussed nothing else. However, he submitted that the reference to a “crescendo of activity” building up and the statement that that was at the forefront of Mr Alou’s mind was a matter in respect of which there was no evidence and it fell foul of the direction given by the trial judge.

15. Similar submissions were made with respect to the Crown’s references to “gun” and “Farhad” in dealing with the conversation on the wall at Merrylands Oval. No objection was taken to the prosecutor’s statement that he could not submit that the word “terrorism” was said, or the word “gun” or the word “Farhad” was said. However, counsel for the applicant said the remarks which followed this comment placed in the jury’s mind that the discussion was about the conspiracy.

16. The Crown submitted that it was open to suggest to the jury that there were other opportunities for the applicant and Mr Alou to communicate.

17. The Crown submitted that the way the submission was put did not suggest that something could be inferred about what was actually said, although at the hearing the Crown accepted it may have come close to that. It was submitted that the Crown was not inviting the jury to speculate about the content of the conversations, but simply pointing out that the jury could not act as if every single conversation and exchange between the applicant and Mr Alou was before them.

18. The Crown pointed out that there was no objection or challenge made to what was said at the trial. It also pointed out that the final part of the address, to which I have referred at [11] above, brought the matter back to the point that it could not be submitted that no further conversations took place.

Consideration

19. If what was done by the Crown was in fact to invite the jury to speculate that in the conversations which were unrecorded the applicant and Mr Alou discussed the conspiracy, including the obtaining of a gun and the involvement of Farhad Mohammad, then such an invitation would invite impermissible speculation, which potentially could give rise to a miscarriage of justice (see Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334 at [31]–[32]).

20. However, it is not challenged that the Crown was entitled to respond to the proposition put that there were no communications other than those recorded. Nor is there a challenge to the ruling by the trial judge that the Crown was entitled to submit to the jury that there were other opportunities for communications, and to rebut a suggestion that the totality of the communications between the applicant and Mr Alou was effectively before the jury and that if they were not in evidence then they did not or could not have happened.

21. It seems to me that ultimately the Crown did not go outside the ruling given by the trial judge, nor did it invite the impermissible speculation complained of. The passages in the closing address complained of were introduced by the remark that it was expected to be submitted that the absence in the recorded conversations of anyone saying the word “gun” or “Farhad” to the applicant is such that it could not have happened. The concluding portion of this section of the Crown’s address makes the same point.

22. The focus of the complaint was the reference to the fact that the “crescendo of activity” was building up and the statement that Mr Alou was under “huge pressure”. On balance, I do not think that submission invited the jury to speculate that the unrecorded conversation in question concerned the conspiracy. Rather, the prosecutor was forcibly putting the point that there were conversations between Mr Alou and the accused which were not recorded, such that the jury could not be satisfied that the evidence of all conversations was before them and thus accept there were no conversations concerning the conspiracy. In that context, the address may be contrasted with the evidence of CIN 1877, the subject of ground 3.

23. It would have been preferable that reference had not been made to the “crescendo of activity” or Mr Alou being under “huge pressure”. However, I do not think that these remarks taken in context lead to the result complained of. First, because the opening and closing portion of that part of the address indicated that it was designed to emphasise that not all the conversations were before the jury. Second, the agreed facts show in any event that the activities of Mr Alou on 2 October 2015 could well be described as reaching a “crescendo”.

24. I am fortified by the fact that experienced senior counsel for the applicant did not raise any complaint concerning this portion of the address. Further, the trial judge gave a specific direction dealing with the unrecorded conversations in which he warned against speculation (see [12] above). No further direction was sought.

25. In these circumstances, this ground has not been made out.

Ground 3: His Honour erred in permitting CIN 1877 to give expert evidence of his opinion as to the applicant’s manner of driving on 2 October 2015

26. CIN 1877 was a police officer who claimed to have expertise in surveillance and counter-surveillance techniques. He gave evidence by reference to various photographs and video footage to the effect that the activities of the applicant on 2 October 2015 were consistent with him conducting surveillance and counter-surveillance on behalf of Mr Alou.

27. It was not disputed that CIN 1877 had expertise in the field of surveillance and counter-surveillance. Rather, it was asserted that the Crown had not established that CIN 1877’s opinions were based on his expertise and second, that there was prejudice to the applicant on the basis of a “white coat effect” of someone providing expert evidence regarding the applicant’s movements when these movements were readily observable by a jury.

The evidence given by CIN 1877

28. As I indicated, CIN 1877 was a police officer. So far as his qualifications and experience were concerned, he stated that since about 2002 “on and off” he had been involved in full-time surveillance and part-time surveillance work. He stated that he had been involved in full-time surveillance work from about 2006.

29. CIN 1877 stated that he was the Operations Coordinator at the State Surveillance Branch. He said that in that capacity he deployed surveillance teams attached to the State Surveillance Branch on a daily basis. He said that during his career he had been a surveillance operative on the ground as a constable and a surveillance team leader as a sergeant prior to his present position as Operations Coordinator as a senior sergeant. He stated that as a result he had extensive experience in the area of surveillance. He also stated that he did the detectives education program through the New South Wales Police and completed the degree of Bachelor of Policing Investigations. He stated that he completed the Australian Federal Police National Surveillance course in 2006. He also stated that in 2010 he completed the Australian Federal Police Advanced Surveillance program, which he described as a program targeted at team leader level for full-time surveillance units from various agencies from around Australia and some internationally. He said that the program involved training in the use of, the detection of, and the planning for anti-surveillance and counter-surveillance techniques.

30. CIN 1877 gave evidence as to what he meant by anti-surveillance and counter-surveillance. He described anti-surveillance by way of an example in the following terms:

“A.   So, for instance, if I'm driving, say - not sure whether I've been followed or something like that and I want to get away from somebody, it might be the case that I come up to a set of traffic lights and that they are red, but I push through them, push through the red light and everyone else behind me has stayed there because it's still red. It's an overt action that sort of an aggressive action to be able to get away or identify anyone that actually comes through with me, so, ‘Oh, well, what's going on there? They followed me through.’ So it's generally an overt act that we can actually see what's happening.”

31. He defined counter-surveillance as follows:

“A.   Generally it is a covert act that you don't always see that is actually happening. So it might be the case that - again, if I can provide an example - whereby I want to go from, I think I can use the example of I want to go from location A to location B. Now, the direct route may be, for example, might be straight on the M4 to get home, say, if I wanted to go from Parramatta to Penrith. But for us it - go down to the M4, on to the M4 out to Penrith, but by doing counter-surveillance you might take different routes that only you know, you have pre-planned them. If someone else is doing the same thing as you, you might identify them as being - as following you and you would be able to identify that. It might be - but it is generally an act that you generally don't see all the time. Not always the case but generally an act that you don't see. Again, to try and identify whether you are being followed or someone's following you.”

32. CIN 1877 was asked what he was trained to do in relation to anti-surveillance and counter-surveillance and gave this answer:

“A.   Well, firstly to be able to see it actually happening, what's actually happening in front of you, to be able to detect that the subject's actually doing it, or whether it's, say for the counter-surveillance, it may be that I need to - I will give you an example of maybe there's a police officer that's under threat and I need to see whether he's being followed by subjects that want to harm him, so I may plan a run. What we call a ‘run’ is a route that then we may be able to detect that someone's actually following them, and then process through that. They are the sorts of things that we would learn and see if there's any emerging trends in relation to all of those of what other people have seen as to what is actually happening on the ground.”

33. That may provide a justification for CIN 1877 giving evidence as to the nature of surveillance or any surveillance techniques. The question still remains whether he was entitled to give evidence as to whether what he saw on the material provided to him amounted to the applicant engaging in those techniques.

34. CIN 1877 stated that during the years he had been doing the work he described, he had been involved in monitoring untrained people attempting to carry out rudimentary anti-surveillance and counter-surveillance techniques. He described the monitoring of untrained people in the following terms:

“A.   So when we are deployed on the road to monitor a subject for the day, we would - if I can provide an example again, so it might be a subject that we are monitoring that's going to have a meeting and if I can provide this example, he's going to have a meeting with another person, so I will use the example of, say, hypothetically, I'm a drug dealer, I've run out of drugs but I've got cash on me but I don't have any drugs, I need to source drugs from somebody else. So what I would do - and I've been given the name of someone else who has drugs and wants to sell them, and for my drug business I want to be able to get hold of drugs to sell the drugs. So - but I don't really know who this person is. I've been given their name. We make contact and we agree to meet somewhere. So in that meet I have lots of money. I don't want to lose all that money because I don't really know who this person is. So what I would generally do is I would bring a support network with me.”

35. He described the bringing of a support network in the following terms:

“So to bring my support network with me, it is to be able to basically be that second pair of eyes for me while I'm having my meeting; to watch my back, basically; to be able to identify whether I'm under surveillance by either rivals or by the police or whether the person I'm meeting is under surveillance by rivals or the police; or does the person I'm meeting have ulterior intentions and, when I do meet them they are going to, what we would call, be ripped, and what I mean by that is they are going to basically stand over me, be violent to me and take my money.”

36. CIN 1877 described informal counter-surveillance as counter-surveillance not being conducted by a person who has been professionally trained like a surveillance police officer.

37. CIN 1877 then gave examples of anti- and counter-surveillance techniques. He described “sitting off” as a process of a person positioning themselves or their vehicles so as to view the activities of another. He described being a “cockatoo” or “lookout” as the activity of someone monitoring the activities of another to identify a threat and/or someone watching them. He described the activity of “shadowing” as when a person or vehicle mimics the activities of another in an attempt to provide protection for a threat and/or to identify someone following them.

38. CIN 1877 then gave evidence of his opinion of the activities of the applicant on 2 October 2015. He stated that he reached these conclusions by reference to the surveillance running sheet for 2 October, a CCTV compilation of surveillance footage as well as aerial footage, and various videos and photographs, including videos and photographs taken by surveillance officers on the ground that day. I will not set out the whole of his evidence but only so much as is adequate to indicate the nature of the objection taken.

39. CIN 1877 was referred to surveillance footage which described a white vehicle driven by Mr Alou travelling from Parramatta and arriving at Jones Park at 1.39pm. He agreed the footage showed Mr Alou’s white car travelling first, followed by Mr Dirani’s silver hatchback, turning off the public street into a carpark in the area of Jones Park. He was referred to the footage showing Mr Dirani reverse parking into the area of the carpark, Mr Alou doing a U-turn, bringing his vehicle diagonally across the front of Mr Dirani’s, pausing, and then parking in the opposite side of the carpark from Mr Dirani’s vehicle. He agreed that a thermal image identified Mr Alou meeting Mr Alameddine. He then gave the following evidence:

“Q.   In relation to the footage we just saw - that is, the arrival of the two cars into the Jones Park car park, the way in which Mr Dirani parked and the meeting between Mr Alou and Mr Alameddine - are you able to express a view in relation to whether or not Mr Dirani's conduct that we just saw in that segment is consistent with any type of counter-surveillance behaviour?

A.   Yes. So, I believe that when Mr Alou in the white car has driven in and come back across, Mr Dirani has reversed his car into that spot and from where he's parked there, he's positioned himself so that he is able to see where Mr Alou is. From the video, we saw Mr Alou get out of the car and walk across to the trees to see Mr Alameddine. I've described that as positioning himself so he can see what's happening over there and basically Mr Dirani being a cockatoo, sitting off Mr Alou and Mr Alameddine - not actually involved in what they are actually doing, but observing what's actually happening. As I described yesterday in the example of a drug dealer scenario, I believe he's there as the support for Mr Alou - not actually taking part in the actual meeting with Mr Alou and Mr Alameddine, but I think he's the cockatoo who is sitting there watching what's happening as a second pair of eyes for Mr Alou, and if there is any threat, potentially from police or from Mr Alameddine, or if there is actually police watching any of the parties, or, on the flip side of that, is there anyone watching - supporting Mr Alameddine and watching what Mr Alou is doing.”

40. Referring to the position of the two cars, CIN 1877 then gave this evidence:

“Q.   Are you able to say whether two cars in that formation is consistent with some form of counter-surveillance behaviour?

A.   What I believe there is Mr Alou is the principal for the day, he's the one having the meetings, and Mr Dirani is the support network again. I believe that he's shadowing his friend Mr Alou, again to be able to see if there is anyone - to be that support network, to be able to see if anyone's following or see if there is anything out of the ordinary that might take their attention; in support of what Mr Alou is - supposedly shadowing what he's actually doing while they are driving.”

41. He was then shown a photograph of Mr Alou meeting Mr Alameddine at the time, and he gave this evidence:

“A.   As I previously said, I believe that Mr Dirani is in that position there, he's got a clear view at the time of Mr Alou having that meeting that's taking place with Mr Alameddine, to see if there is anything out of the ordinary in the area. It's only a small car park, is there something out of the ordinary, where perhaps police are trying to watch them, is someone trying to get close, something that might be out of the ordinary that might - be that second pair of eyes that might be able to alert Mr Alou if need be.”

42. CIN 1877 described Mr Dirani’s behaviour as “shadowing”, being the “support network for Mr Alou by mimicking or following him”, and being in a position where he was able to be a “second pair of eyes”, whereby “if there was something out of the ordinary … – he’s just being that support network for Mr Alou.”

43. He described that what had occurred was consistent with what he described as “cockatooing”, “sitting off” and “shadowing”.

44. CIN 1877 was then referred to surveillance showing Mr Alou’s and Mr Dirani’s vehicles travelling towards Warwick Road, Merrylands. He was referred to surveillance showing Mr Alou’s vehicle proceeding along Warwick Road, Merrylands, parking along the left-hand side kerb, followed closely by Mr Dirani’s silver hatchback parking behind. He was asked whether he considered Mr Dirani’s conduct to be consistent with counter-surveillance and gave this answer:

“A.   Yes, I believe that obviously at the start of that section, following in, he's still shadowing Mr Alou, being that second pair of eyes, and then obviously Mr Alou's pulled up first at that location and he stayed in his car, he's away from the conversation, not involved in it, but he's now in that position where he is able to see things around him that may trigger something that's happened previously - he might have seen a car or a person that may trigger action. He's still there, I believe, to be that support network for Mr Alou, whether it's a threat from police or others, or Mr Alameddine or by trying to identify whether there's some surveillance that's trying to follow them and trying to get a sight of them. Basically being that support network.”

45. CIN 1877 was then referred to aerial footage which showed that whilst Mr Dirani remained in the front driver’s side position of his vehicle, a meeting took place for seven minutes between Mr Alou and Mr Alameddine. He said Mr Dirani’s behaviour was consistent with counter-surveillance, giving this answer:

“A.   Yes. As previously said, I think, by staying in there he's not involved in the conversation, but he's being that support network for Mr Alou, being in the position that he is able to see other cars that drive past, if there is something out of character - if there is surveillance, there, for example, did he see someone that he's seen before or a car that he's seen before, or a registration; did someone make a mistake and there was surveillance there, did someone lift up a camera and take a photo and he's seen it? Something like that, yes.”

46. He next expressed the view that Mr Alou and Mr Alameddine had got out of Mr Alou’s car to avoid any electronic surveillance.

47. CIN 1877 was then referred to surveillance material at Merrylands Park, Merrylands. He referred to Mr Alou’s vehicle proceeding towards Merrylands Park, followed by Mr Dirani’s vehicle. He said again his view was that Mr Dirani was a “support network shadowing Mr Alou”, stating that from his experience, “I believe that he is being that second pair of eyes for Mr Alou”.

48. He was next referred to where the vehicles were parked and gave this evidence:

“A.   From that position there, Mr Alou is obviously parked. By reversing into that - well, two parking spaces there, I believe that he's trying to position himself into an area that he's able to see out, to be able to be that second pair of eyes again, to see if again there's cars following in, is there something out of the ordinary, something he's seen before, a vehicle he's seen before. Basically positioning himself to be that support network, to see what's coming into that car park.”

49. CIN 1877 was then referred to the fact that the applicant only parked his car briefly in that fashion then pulled out and parked bonnet facing immediately to the right of Mr Alou’s car. He was asked whether this was consistent with counter-surveillance and gave this answer:

“A.   I'm not exactly sure as to why he moved that position. For me, the reversed-in position, to be able to look out into the car park was a much better position. By him parking in that position, I believe that he can still see in his mirrors and see around his surroundings for that open area, from where he's positioned, but obviously there's more to come as to what I think, but I still think he's being that support network for Mr Alou.”

50. In addition to what might be described as surveillance evidence, CIN 1877 also expressed a view about the activities of Mr Alou and Mr Dirani on that day. He referred to Mr Alou and Mr Dirani getting out of their cars at Merrylands Park and expressed this view:

“A.   Yes. So what I believe there is there's obviously been some conversation while they have been sitting in the cars next to each other. They got out of the car and walked towards the wall there. What I believe is happening there is that they are having, again, frank conversations away from the vehicles to avoid the risk of there being a listening device in the vehicle, to have an open conversation about whatever. Obviously we don't know what they are saying there, but that's what I believe is actually happening.”

51. He was also referred to a phone conversation between Mr Alou and Ms Perger (Mr Alou’s wife) on 2 October 2015 at 2:12:08, where Mr Alou said “I’m just goin’ to eat with, ah, what do you call it, one of the boys, brother Musti”. CIN 1877 gave evidence that in his review of the surveillance evidence, including the aerial footage, he did not see anything to indicate that Mr Alou ate with the applicant on that day.

52. CIN 1877 summarised his conclusions in the following terms:

“A.   So, what I believe is happening there is that again he's being that support network, he's got a level of surveillance trade craft in relation to what he's doing. I think I said in an example, I don't believe that it's something that he's been taught by the police or by an official agency, or something like that, but he has some level of surveillance trade craft and I believe that he's using that to support his friend Mr Alou who's directing what's happening for the day. I believe in the different scenarios throughout he's either sitting off Mr Alou, he's not being actively engaged in what's actually - in the conversations with Mr Alameddine, but he's being there as that support network, that second pair of eyes to see something that may be a risk to Mr Alou or - from police or others, and whether there is actually - he can capture surveillance in the area. It could be as simple, as I've mentioned before, as seeing a car a number of times, seeing the same registration. Maybe that's a trigger for what's actually happening to alert Mr Alou that maybe they are under surveillance that day, or is there a risk from police or others in relation to that.

…

A.   Throughout the whole of the thing I think he was being that support network, that second pair of eyes, the lookout, the cockatoo, in relation to what was happening with Mr Alou when having those meetings. Just being that support for Mr Alou, trying to help him out while he was concentrating on whatever was happening in relation to his meetings with Mr Alameddine.

Q.   Detective Senior Sergeant, are you able to express any view in relation to the level of sophistication concerning your view of Mr Dirani's conduct?

A.   As I said previously, I don't believe he's had any formal training, but both Mr Alou and Mr Dirani appear to have a level of knowledge in relation to surveillance trade craft and what to do in relation to this, and informally, yes, they are having a very good go. There are some things there that I suggest could have been done better, but I believe they are having a very good go at being able to do the surveillance trade craft.”

53. He was finally asked in relation to the answer I have referred to immediately above, which “bits” he said could have been “done better” and gave this answer:

“A.   I think at Merrylands Oval - Merrylands Oval, I think he initially reversed into the two parking spots, which was supposed to be diagonal parking but he reversed straight in. In the correct position there he would have had a lot better position to be able to see that wide open space and that longer distance that was there, if there were other - and what's happening in the area, are there other cars coming in to get close, are there other people coming in. Eventually he ended up parking next to Mr Alou nose-in towards the fence there. It's not the most opportune or best position probably to be in to see what's behind him, but it's definitely achievable, I've done it myself, used mirrors to see what's behind me when I was on the road. He was able to see, obviously, when Mr Alou and Mr Alameddine were having a meeting next to the car.”

The voir dire

54. Prior to the first occasion that the applicant was tried for this offence, a voir dire was held to determine the admissibility of the proposed evidence of CIN 1877.

55. A statement prepared by CIN 1877 was tendered at the hearing. Although the Crown submitted that the evidence on the voir dire was somewhat different to that ultimately given by CIN 1877 at the second trial, the differences do not seem to me to be material.

56. The trial judge ruled the evidence was admissible.

57. In his Honour’s judgment, R v Dirani (No 6) [2018] NSWSC 891 (judgment on the voir dire or voir dire judgment), the trial judge identified at [115] that the issue to which the evidence went was whether the conduct of the applicant on the afternoon of 2 October 2015 amounted to an act in furtherance of the alleged conspiracy. His Honour stated at [117] that he was satisfied that CIN 1877 had specialised knowledge based on his training, study and experience in the field of surveillance. The trial judge concluded at [118] that although members of the public and the jury may have some basic understanding of avoidance action, the specialised knowledge of CIN 1877 concerning counter-surveillance and anti-surveillance measures goes far beyond the type of understanding which members of the public might possess. In that context, his Honour made the following remarks at [119]:

“[119]   The decision of the Court of Criminal Appeal in R v Kingswell demonstrates that specialised knowledge such as that possessed by CIN 1877 may be applied for the purpose of s.79(1). This area of specialised knowledge is to be distinguished from common knowledge. Although ordinary members of the public (and members of the jury) may be able to form suspicions or otherwise speculate concerning the movement of persons and vehicles in this case at different locations over a period of time, CIN 1877’s specialised knowledge allows the expression of opinions concerning these events which are relevant and probative concerning facts in issue in the trial. The first condition under s.79(1) is satisfied in this case.”

58. The trial judge also stated in his judgment that he was satisfied that CIN 1877’s opinions were at least based substantially on his specialised knowledge based on his training, study and experience. His Honour stated that the fact that the evidence also related to “observations and knowledge of everyday affairs and events” did not render it inadmissible (R v Dirani (No 6) at [120]). His Honour also stated at [122] that there was no impediment to the admissibility of the evidence that CIN 1877 was working from a video and documents without personal attendance at the various locations involved.

59. In those circumstances, the trial judge expressed the following conclusions:

“[124]   However, CIN 1877 has specialised knowledge as to acts observed on the videos which have as available (but not necessarily conclusive explanations) the use of counter-surveillance and anti-surveillance measures. Without the assistance of this opinion evidence, the jury may regard the movements of the Accused on that day in accompanying Alou to various locations, and in taking other action, as being unusual or even odd. However, the opinion evidence of CIN 1877 will provide further assistance to the jury by way of an explanation for the movements of the Accused with it being a matter for the jury to reach a conclusion on the issue by reference to all the evidence.

…

[127]   The opinion evidence of CIN 1877, based upon his specialised knowledge and experience, will assist the jury with an available explanation for the movements of the Accused in the ways depicted. Although members of the jury may be able to draw upon their common experience and knowledge to form the view that the movements of the various persons appear unusual or perhaps even odd, the opinion evidence of CIN 1877 will provide additional assistance to the jury by reference to steps which a person may take by way of counter-surveillance or anti-surveillance measures.”

The submissions

a   The applicant

60. In his written submissions, the applicant accepted that although CIN 1877’s expertise is not in a traditional area of knowledge, his experience and training would be sufficient for him to be considered as an expert in his field. It was also acknowledged that no objection was taken to the relevance of his evidence.

61. The applicant stated that the conclusion reached by the trial judge at [119] of his Honour’s judgment on the voir dire was not challenged. However, it was submitted that R v Kingswell (Supreme Court (NSW), Smart, Studdert and Hidden JJ, 2 September 1998, unrep) (“Kingswell”), on which the trial judge relied, was decided before the decision of the High Court in Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 (“Honeysett”) and Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 (“Smith”). It was also submitted that Kingswell was different from the present case in that the officer providing the opinion in Kingswell was in fact the only witness to the events in question, and it was necessary for the evidence to be given to understand the significance of what the officer had noted.

62. It was submitted in the present case that the evidence, to the extent it attributed motive to the applicant’s conduct, was not based on any expertise, referring by way of example to the evidence to which I have referred at [39], [40], [41], [42], [48]–[50] and [52] above.

63. The submissions referred to the remarks made by the trial judge at [127] of his Honour’s judgment on the voir dire. I have referred to these remarks at [59] above. It was submitted that what was said there by his Honour identified the reason that the evidence should not have been admitted. It was submitted that the conclusion of the trial judge was in effect that without the evidence, the jury might have thought that what was being done was unusual or odd. It was stated that that was the applicant’s case, and that the jury would be able to judge for themselves whether what occurred was consistent with surveillance or just odd. He submitted that in those circumstances the evidence was “merely gratuitous commentary to factual observations”.

64. At the hearing, counsel for the applicant submitted that the basis of the objection was that the evidence given by CIN 1877 was not based on his specialist knowledge. He submitted that it was difficult to see the expertise which the statement that people were travelling in convoy was based upon. He submitted that the officer used expressions which were artificial, giving examples of where someone is following a car, they are in “convoy”, and someone in the vicinity being a “cockatoo”. He submitted that the evidence was not based on the officer’s expertise and could have been dealt with by the jury with the advantage of submissions. He submitted that CIN 1877 was no more than an advocate for the Crown.

65. Council for the applicant, referring to Honeysett at [24], stated that there was no connection between the officer’s expertise and the evidence he gave.

66. Counsel for the applicant submitted that Kingswell could be distinguished in two ways. The first was that the police officer in that case was actually observing the activities of the accused. Secondly, and more importantly, in the present case there was no observable testing methodology by which the reasoning of the expert could be tested.

b   The Crown

67. The Crown in its written submissions submitted that no challenge was made to the trial judge’s conclusion that CIN 1877 had specialised knowledge. It submitted that Kingswell remained good law and was not inconsistent with Honeysett, Smith or Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 (“Makita”).

68. The Crown sought to characterise this ground of appeal as challenging the finding of the trial judge on the voir dire that the opinions expressed were based substantially on specialised knowledge because the jurors could themselves view the primary material and form their own opinions.

69. The Crown submitted that the applicant’s argument should be rejected as first, CIN 1877’s evidence clearly exposed the reasoning on which his opinion was based. Second, it was submitted that the applicant was able to give expert evidence on counter-surveillance techniques that allowed the jury to see what they would otherwise not see. Third, it was submitted that no issue was taken to the summing-up by the trial judge, in that the jury were told it could accept all, some or none of what was said by the expert. Fourth, it was noted that the Crown submitted in closing that the jury had a been to the locations in question during the course of a view and were in a better position than CIN 1877 to consider whether the applicant was conducting counter-surveillance or acting as a support person.

67. At the hearing, the Crown submitted that the challenge was to the ruling of the trial judge on the voir dire and it was impermissible to use the evidence at the trial to challenge that ruling.

68. The Crown submitted CIN 1877 exposed his reasoning by describing counter-surveillance and anti-surveillance. It submitted that the steps in his reasoning included making observations and recording behaviour. The Crown submitted that the ruling was made in accordance with Kingswell, which he submitted remained good authority.

Consideration

72. The admissibility of expert opinion evidence is governed by the provisions of s 79 and s 80 of the Evidence Act 1995 (NSW). So far as relevant, they are in the following terms:

“79   Exception: opinions based on specialised knowledge

(1)   If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

…

80   Ultimate issue and common knowledge rules abolished

Evidence of an opinion is not inadmissible only because it is about—

(a)   a fact in issue or an ultimate issue, or

(b)   a matter of common knowledge.”

73. As was pointed out in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 (“Dasreef”) at [37], the admissibility of opinion evidence is to be determined by the requirements of the Evidence Act, rather than attempting to analyse particular statements in decided cases divorced from the context in which they were made. However, the plurality went on to make the following remarks:

“[37]   Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita, that ‘the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded.”

74. Section 80(b) of the Evidence Act makes it clear that evidence of an expert is not inadmissible merely because it is about a matter of common knowledge. However, that does not mean that the opinion of the expert must not be drawn wholly or substantially from the expert’s specialised knowledge based on his or her training, study and experience. The remarks of Heydon JA in Makita, cited with approval by the High Court in Dasreef, makes this clear:

“[85]   In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of specialised knowledge; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert;  the opinion proffered must be ‘wholly or substantially based on the witness’s expert knowledge’; so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on assumed or ‘accepted’ facts, they must be identified and proved in some other way;  it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v The Queen, on a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise’.

See also Honeysett at [23].

75. The effect of s 80(b) of the Evidence Act was explained by each of Gaudron J and Gummow and Callinan JJ in Velveski v R [2002] HCA 4; (2002) 76 ALJR 402 (“Velveski”). Justice Gaudron made the following comments at [82]:

“[82] The concept of ‘specialised knowledge’ imports knowledge of matters which are outside the knowledge or experience of ordinary persons and which ‘is sufficiently organized or recognised to be accepted as a reliable body of knowledge or experience’. So to say, however, is not to say that an expert witness cannot have regard to matters that are within the knowledge of ordinary persons in formulating his or her opinion. So much is expressly acknowledged by s 80(b) of the Evidence Act.”

Gummow and Callinan JJ made the following remarks at [158]:

“[158] Nothing in s 79 of the Evidence Act 1995 (NSW) (the Act), stands in the way of the reception of expert evidence of this kind. ‘Training, study or experience’, the words used in the section, necessarily include, as they must in all areas of expertise, observations and knowledge of everyday affairs and events, and departures from them. It will frequently be impossible to divorce entirely these observations and that knowledge from the body of purely specialised knowledge upon which an expert’s opinion depends. It is the added ingredient of specialised knowledge to the expert’s body of general knowledge that equips the expert to give his or her opinion. Section 80(b) of the Act is no different an effect.”

See also Campbell v R [2014] NSWCCA 175 at [222]–[225].

76. It is what Gummow and Callinan JJ described as the “added ingredient of specialised knowledge to the expert’s body of general knowledge” which both enables the expert to give his or her opinion and avoids experts giving opinions outside the range of specialist knowledge, which as Gleeson CJ pointed out in HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 at [44] may invest such opinions with a spurious appearance of authority and thereby subvert the legitimate process of fact-finding.

77. In the present case, it was accepted by the applicant that CIN 1877 had specialised knowledge in what might be described as surveillance techniques. That concession was correct having regard to the evidence of CIN 1877 to which I have referred at [29] above.

78. In that context I am prepared to accept that CIN 1877’s description of surveillance, anti-surveillance and counter-surveillance techniques were based on his knowledge, skill and experience and was relevant to assist the jury in their consideration of the activities of the applicant on 2 October 2015. Thus the evidence which I have set out in [30]–[35] above was both relevant and admissible.

79. However, the evidence which CIN 1877 gave by reference to the material to which I have referred at [38] above is more problematic. It is convenient to deal with each portion of the evidence in turn.

a   The evidence referred to in [39] above

80. The first part of the answer is simply a description of what occurred. It is not based on any expertise. The second part seems to me to amount to speculation. The suggestion that the applicant was watching out for the police or supporters of Mr Alameddine does not seem to be based on any particular expertise that CIN 1877 may have. It is speculation of the reason for the applicant’s conduct, rather than a conclusion derived from CIN 1877’s expertise. In my opinion the evidence was not admissible.

b   The evidence referred to in [40] above

81. This evidence really goes no further than describing what could be observed from the video recording. The jury did not need expert evidence to determine why the applicant was following Mr Alou, particularly if they were informed by CIN 1877’s description of what constitutes a “support network”.

c   The evidence referred to in [41], [42] and [43] above

82. The answers in [41], [42] and [43] above once again first describe where the applicant is parked in relation to Mr Alou’s vehicle, something which emerges from the video footage and could not be said to be based on any knowledge, skill or experience. The series of rhetorical questions given by CIN 1877 in that answer amounts to speculation of what the applicant might be looking for. CIN 1877 does not identify how that evidence is based on his expertise. Further, although it may well be open to the jury to draw the same conclusion having regard to all the evidence at the trial, it is difficult to see without some further stated assumptions how an expert could draw that conclusion as the reason for the applicant’s actions simply from the position of the two cars.

d   The evidence referred to in [44], [45] and [48] above

83. The same may be said of the evidence to which I have referred in [44], [45] and [48] above. CIN 1877 again speculates what the applicant is doing, whether there is “a threat from police or others, or Mr Alameddine”.

e   The evidence referred to in [46] above

84. The evidence in [46] above once again is speculation or, at the very least, not based on any identified expertise.

f   The evidence referred to in [49] above

85. Whilst acknowledging that the applicant had moved to a position which was not the best position for surveillance, CIN 1877 persisted in his view that the applicant was conducting surveillance, but did not base it on his expertise, merely making the comment “there’s more to come as to what I think, but I still think he’s being that support network for Mr Alou”.

g   The evidence referred to in [50] above

86. This evidence seems to me to be speculation. It makes the assumption, not based on any material available to the expert, that the applicant and Mr Alou believed there may have been listening devices in their vehicles.

h   The evidence referred to in [51] above

87. This evidence plainly is not an expert opinion.

1. The evidence referred to in [52] above

88. This evidence is a summary of what was said before. It suffers from the same difficulties.

j   The evidence referred to in [53] above

89. So far as the evidence in [53] above is concerned, the question of whether the applicant could have improved his surveillance techniques is quite irrelevant.

90. In these circumstances, in my opinion, the evidence to which I have referred in the immediately preceding sub-paragraphs was inadmissible. First, to the extent that it records the applicant’s movements on the day in question, the identification of these movements does not involve the application of any expert skill and judgment. Second, although it may have been appropriate for the jury to be informed of the nature of surveillance techniques, the evidence given did not have the additional degree of specialised knowledge that was referred to by Gummow and Callinan JJ in Velveski at [158] (set out at [75] above). Nor did the witness identify the expertise on which he concluded that the applicant was the lookout for threats posed by Mr Alameddine’s associates or the police, or identify any assumption he made which entitled him to reach this conclusion. Indeed, on one view, his evidence seemed to be based on the assumption that Mr Alou was engaged in criminal activity and the applicant was there to assist him. CIN 1877 did not have a basis for making that assumption at the time he gave his evidence.

91. I do not think this conclusion is inconsistent with Kingswell. Kingswell concerned the evidence of an officer experienced in surveillance techniques who observed the accused driving and stated that what he observed the applicant doing amounted to counter-surveillance techniques. The relevant evidence in Kingswell was as follows:

“A.   That the fact that he looked in his rear view mirror on those two occasions, which I thought was more than the usual time to look in the mirror, the turns that were being made without indication, the differing speed of the vehicle, the route that was being taken, that the one time going along a road, turning down Isaac Smith Street and going back towards Bunnerong Road heading as if we were going back towards the city, and on to the roadway and then heading south and also going back through the side streets and heading back towards Anzac Parade again, that to me was another form of counter surveillance in relation to trying to see if there is anything around you.”

92. That is quite different from the present case where the officer looked at video footage and not only expressed his view as to what was occurring but opined on the motivation for it. The evidence went well beyond the officer’s expertise and, in effect, involved the presentation of the Crown case.

93. I have referred to the remarks made by the trial judge in his Honour’s voir dire judgment (set out at [59] above) to the effect that the evidence would assist the jury in considering something they may have otherwise regarded as odd or unusual. However, with the explanation of surveillance, counter-surveillance and anti-surveillance techniques, the jury was well able to reach the conclusion for the applicant’s activities on 2 October 2015. Perhaps most telling is the remark made by the Crown in its closing address to the jury to the effect that the jury had been to the locations in question during the course of a view and was in a better position than CIN 1877 to consider whether the applicant was conducting counter-surveillance or acting as a support person.

94. It should be noted finally that it is correct, as the Crown pointed out, that the challenge made on this ground of appeal was to the ruling by the trial judge on the voir dire rather than the evidence which was in fact led at the trial. However, the appeal was argued by reference to the evidence given. Further, it does not seem to me that in circumstances where a general objection to the evidence had been rejected, it was incumbent to separately object to each part of the evidence, such that r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) would apply.

95. In these circumstances, this ground of appeal has been made out.

Ground 4: His Honour erred in permitting the Crown to tender issue 12 of the ISIS publication known as “Dabiq” in circumstances where the applicant did not have a copy in his possession and had neither seen nor obtained a copy of the magazine.

96. The relevant publication (Exhibit L) included a Foreword which stated:

“Amongst these brave knights of tawhid and jihad was 15-year-old Farhad Khalil Mohammad Jabar who on 2 October 2015 struck the crusaders of Australia and killed one of their personnel.”

97. It was not suggested the document was in the possession of the applicant.

98. The trial judge ruled Exhibit L was relevant and admissible on the following basis:

“[7]   It seems to me that the document is relevant to the issues in this trial in this way. What is said to have been, on the Crown case, a terrorist act carried out in the name of Islamic State on the streets of Parramatta on 2 October 2015 was claimed by Islamic State and embraced in that way in this document. It operates to complete a picture of the interest of Islamic State in adopting and embracing the act of Farhad Mohammad in killing Mr Cheng. The document is not tendered as a document produced by the Accused or possessed by the Accused, but it bears, in my view, upon the element of "terrorist act" which the Crown must prove.”

R v Dirani (No 3) [2018] NSWSC 882 at [7].

99. In a subsequent judgment, R v Dirani (No 4) [2018] NSWSC 888, a submission that the document should be excluded under either s 135 or s 137 of the Evidence Act was rejected. The submissions in support of this ground of appeal do not challenge that ruling.

100. The applicant submitted that the fact that the murder was a terrorist act was not in issue. It was submitted that Exhibit G (a note extolling Islamic State) found on Farhad Mohammad’s body made it clear that he intended to commit a terrorist act. It was further submitted that even if it was in issue, Exhibit L could not be used to retrospectively cloak the event which occurred with a particular characterisation. In these circumstances it was submitted that it was not relevant. It was also submitted that it was arguably hearsay.

101. The Crown submitted that the trial judge was correct in finding where the terrorist act in question was said to have been carried out in the name of Islamic State, it was relevant that an Islamic State publication had embraced it and praised Farhad Mohammad for what he had done.

102. The Crown submitted that the evidence was admissible for a non-hearsay purpose.

Consideration

103. The applicant was charged with conspiring to do acts in preparation of a “terrorist act” (as defined in s 100.1 of the Criminal Code).

104. In the present case, the relevant act was the obtaining of a gun to be given to Farhad Mohammad to enable him to kill an innocent civilian. It was necessary to show that act was a terrorist act. The embracing of the act by a publication of ISIS is evidence in support of that proposition. It was thus relevant within the meaning of s 55 of the Evidence Act as being capable of rationally effecting the probability of the act being a terrorist act.

105. The document was not tendered for a hearsay purpose. Its relevance lies in the fact that it was a statement made in a publication of ISIS, not the truth of its content.

106. As I indicated, no reliance was placed on s 135 or s 137 of the Evidence Act in the submissions filed in support of this ground. In the circumstances, it has not been made out.

Ground 5: His Honour erred in permitting the Crown to tender the applicant’s version of the 1.53pm conversation tendered by the applicant in the first trial.

107. This ground relates to the transcript of a recorded conversation which took place between Mr Alou and the applicant at 1.53pm whilst they were sitting in their motor vehicles parked next to each other at Merrylands Oval. The recording device was in Mr Alou’s vehicle.

108. At the first trial of the applicant, each of the applicant and the Crown tendered a transcript of the conversation which was said to have taken place. In each of the versions tendered, the following words were attributed to Mr Alou, “[b]ut it will affect, the brother, Parra, affect the masjid, mine, it will affect me, do you know anything?”.

109. At the trial the subject of the present appeal, the Crown tendered a similar version, whereas the applicant tendered a different version, “[b]ut it will affect the brother, Kawa, affect the masjid, mine, it will affect me, do you know anything?”. The Crown also tendered the version tendered by the applicant at the first trial. This was the tender the subject of the objection.

110. In dealing with the objection (R v Dirani (No 29) [2019] NSWSC 64), the trial judge noted that Kawa Alou was the brother of Raban Alou. His Honour also noted that in opening to the jury, Senior Counsel for the applicant after reading out the version propounded by the applicant said that the defence case is that the conversation might be “about a dispute between Mr Raban Alou and his brother Kawa who were in a major dispute at that time”.

111. The trial judge noted that that picked up certain evidence concerning a dispute between Mr Alou and his brother relating to Mr Alou’s marriage to Ms Sharna Perger.

112. The trial judge at [29] of his judgment stated that he proceeded on the basis that the content of the conversation was subject to “close consideration” by the parties at the first trial. His Honour rejected the submission that the Court should approach the issue on the basis that the applicant was in no better position than anyone else to detect what was said. The trial judge stated at [35] that the applicant was a party to the conversation and listening to the recording would operate to assist him to refresh his memory. His Honour said that the use of the word “Kawa” instead of “Parra” was relevant to an important issue in the trial, namely, what was said in the conversation and what it revealed concerning the accused in a manner which may or may not incriminate him.

365. Shortly before the applicant drove away from Lane Street, at about 2:38pm, Mr Alou retrieved a white object from the front passenger side of the applicant’s vehicle. The applicant was not further involved with Mr Alou that afternoon.

366. A transcript of the text messages between the applicant and Wes on 2 October 2015 was tendered in the applicant’s case (Exhibit 19). [116] The first text message from the applicant to Wes was at 10:37:12am. The next one was at 1:07:35pm; others followed until 3:30:17pm. The exchanges appear to be of a social nature. The exchanges included:

     116. Ex 19.

The applicant: “Wake up you deb”

The applicant: “Wow”

The applicant: “You full missed jummah you prick”

The applicant: “What’s your street”

Wes: “B street”

Wes: “Millbrook place give me 15 shower this that”

Wes: “This is work you got to wait for the boss”

The applicant: “Na bro hurry”

The applicant: “Come out”

The applicant: “Guess what”

The applicant: “Get my hat on the floor near the couch”. [117]

117. Ex 19.

368. The applicant’s Senior Counsel submitted that these exchanges showed the applicant had invited another friend to come to the prayer meeting on 2 October 2015. He argued why would the applicant have done so if his aim for attending Parramatta Mosque that day was to be the surveillance expert for Mr Alou. [118]

Mr Alou returns to the Merrylands Oval carpark

118. Tcpt, 7 March 2019, p 2095(3-5).

369. About seven minutes after the applicant had departed, Mr Alou drove his vehicle to the Merrylands Oval carpark. Some ten minutes later, Mr Alameddine arrived on his bicycle. A white plastic bag was being carried on the handlebars. Mr Alameddine rode up to the driver’s side door and leant into the window. The listening device did not capture much of what was said other than Mr Alou saying, “[d]o a good job”. [119]

     119. Ex P.

370. Mr Alameddine removed a white plastic bag from the front window of Mr Alou’s car. After a short conversation, both men left the carpark. As Mr Alameddine cycles away, something can be seen swinging from the handlebars of his bicycle.

371. It was the Crown case that the unsuitable firearm was returned to Mr Alameddine at this time. The applicant’s case was that the .38 Smith and Wesson revolver was not handed over at the first meeting at Merrylands Park but at this meeting when the applicant was not present.

Mr Alou returns to Parramatta Mosque

372. It is unnecessary to recount the surveillance material as to Mr Alou’s movements when he returned to the Parramatta Mosque. It is sufficient to state that he arrived at the Mosque shortly after 3:00pm, where he met with Farhad Mohammad. It was the Crown case that Mr Alou left the Mosque at 3:48pm and went to his vehicle, returning with a .38 Smith and Wesson service revolver which had been obtained from Mr Alameddine. Mr Alou and Farhad Mohammad remained alone together in the female prayer hall for about seven minutes. It was the Crown case that during that time, Mr Alou provided the firearm to Farhad Mohammad. Mr Alou left the Mosque shortly after 4:00pm.

The shooting of Mr Cheng

373. Farhad Mohammad left the Mosque at 4:09pm, having changed into a long black robe, a dishdasha. As he left the Mosque, he made a one finger ISIS salute to the CCTV camera. At 4:24pm, CCTV footage revealed Farhad Mohammad walking along Charles Street, Parramatta where the NSW Police Headquarters were situated. Ten minutes earlier, Mr Alou had driven past the Police Headquarters.

374. At about 4:30pm, Farhad Mohammad walked behind Mr Cheng, who had exited the Police Headquarters, and shot him in the back of the head. After murdering Mr Cheng, Farhad Mohammad said “Allahu-akbar [God is great]”. He then fired shots in the air and engaged in gunfire with two Special Constables during which he was shot dead. A note (Exhibit G) was found in Farhad Mohammad’s pocket which indicated that the shooting was a terrorist act committed in the name of ISIS.

Mr Alou’s conversations about money after the shooting

375. Shortly after he had left the Mosque and before he had driven along Charles Street, Mr Alou made a telephone call at 4:11pm to Ahmad Bakhtiari. The conversation included:

Mr Alou: “Where are ya?”

Mr Bakhtiari: “Home”

Mr Alou: “Oh, cuz- can I come give you your money, your hundred bucks that I owed you?”

Mr Bakhtiari: “If, like, if you – if you need it keep it with you, you know?”

Mr Alou: “What?”

Mr Bakhtiari: “I’m saying, like, if you still need (Foreign Language), you know, keep it with you for now”

Mr Alou: “No, no, I got money. Praise be to God. I got some money, that’s why”. [120]

120. Ex P.

376. At 5:09pm, Mr Alou made another call to Mr Bakhtiari about the money. He said to Mr Bakhtiari:

“Cuz, can you come down to mine real quick?

…

…because, cuz, I don’t know I feel really, really sick, bro…‘cause I swear I’m sick, brother

…

…call me when you’re – when you’re down. I’ll just come down God willing. I’ll give you money”. [121]

121. Ex P.

377. At 5:24pm, Mr Alou called Mr Bakhtiari again who told him he would be there in five minutes and he was on the way. Mr Alou asked, “Was that fifty bucks or a hundred bucks?” Mr Bakhtiari replied, “It was hundred brother”. [122] Mr Alou told Mr Bakhtiari he would be in the front of the house.

     122. Ex P.

378. Another conversation Mr Alou had was with Ms Perger at 9:53pm. Their conversation in Mr Alou’s vehicle included the following:

Mr Alou: “…keep looking at this money, what, what do you want”

Ms Perger: “Is that it”

Mr Alou: “What do you mean is that it?”

Ms Perger: “No the one you just had you said I keep looking at it”

Mr Alou: “See this is from the brothers, but I don’t touch that”

Ms Perger: “Just pass it just pass it (indistinct)”. [123]

123. Ex P.

379. On 3 October 2015, Mr Alou had a telephone conversation with Jalal Suleman. They discussed meeting up and also about seeing and comforting Farshad Mohammad. The conversation included Mr Alou saying:

“…look, when Farshad.. when Musti comes let me just drop off his money

…

…I said I’d give the money to Musti , the brother just to put in the way and if he’s – to put – get it out of the way so that that’ll be just one thing ‘cause I have his money. I don’t want to in case I spend it, bro, because I wanna give it to him asap”. [124]

124. Ex P.

The applicant’s conduct after the shooting

2 October 2015

380. Between 6:27pm and 6:30pm on 2 October 2015, the applicant posted the following messages on the Bricks chat WhatsApp forum:

“See the news”

“Wow”

“3 dead at parra”

“Wait”

“ think they Muslims”

“Ye no updates”. [125]

125. Ex BM, p 75-77.

381. Shortly afterwards, he posted a screenshot from Twitter of news feed from Sydney Morning Herald reporter Rachel Olding about the shooting at Parramatta and then posted, “This what’s going on Twitter”. [126] The applicant then posted “May Allah never take away our prayers” with a link to the image of a young boy praying next to his hospitalised father in Salah. [127] This post was followed by a screenshot from a Twitter feed of an NBC News article “BREAKING: Five U.S. service members among 12 dead after U.S. C-130 transport plane crashes in Afghanistan”. [128]

     126. Ex AP, p 79.

     127. Ex AP, p 79.

     128. Ex AP, p 79.

382. It is apposite to note, as the applicant contends, there were a number of posts by him before he posted “May Allah never take away our prayers”. It is the applicant’s case that these posts are consistent with the applicant being surprised by what had occurred.

383. Between 7:43pm and 8:14pm, Mr Alou tried to call Mr Atai twice.

3 October 2015

384. Between 11:39am and 12:30pm, the applicant tried to call Mr Alou on five occasions before Mr Alou rang him at 12:31pm. In the conversation, Mr Alou said, “let’s go eat, bro, I’m really hungry”. [129] They further discussed where they should meet.

     129. Ex P.

385. After further text messages and attempted calls, they met at the South Granville McDonalds at 2:15pm.

386. At 9:28pm, the applicant posted an image on the Bricks chat WhatsApp forum depicting a man giving an ISIS salute.

The exchange between Ms Perger and Mr Alou

387. Before I leave 3 October 2015, it is convenient to note that the applicant placed emphasis in his case on a conversation between Ms Perger and Mr Alou at 8:34pm. The exchange between them included:

Mr Alou: “…I said Allah knows best and I got teary because (indistinct), he was crying he was crying my brother my brother (indistinct)”

Ms Perger: “I don’t see it”

Ms Perger: “Far out man, (indistinct) Dirani, that’s it”

Mr Alou: “(indistinct), his eyes, [h]is eyes were watery they were red, cause he only found out, he only found out properly this morning”. [130]

130. Ex P.

388. The applicant’s Senior Counsel put to the jury that they could hear the words “Mustafa, Mustafa” after Ms Perger said “Dirani”. It was the Crown’s contention if that was said that Mr Alou was referring to Mustafa Elkholy. The applicant’s Senior Counsel submitted that Mr Alou referred both to the applicant and Mr Elkholy as “Musti”. The applicant’s Senior Counsel submitted that the applicant had only found out on the morning of 3 October 2015 that the shooter was Farhad Mohammad which was inconsistent with the Crown’s case that he was a member of the conspiracy.

4 October 2015

389. At 9:32pm on 4 October 2015, the applicant posted an image to the Bricks chat WhatsApp forum which stated “If you think “snitching” reporting etc whatever you want to call it, is British Islam, you are a Kafir [non-believer]”. [131]

     131. Ex BM, p 79.

390. Minutes later, the applicant posted, “The path of hardship is rewarded greatly, for it is not an easy task to bear. Only those special people will taste the sweetness with in it”. [132]

     132. Ex BM, p 79.

391. That night, the applicant changed the Bricks chat WhatsApp forum name back to Bricks.

5 October 2015

392. At about 10:00am, the applicant had an encounter with police who had been conducting surveillance of his property in an unmarked vehicle. Detective Senior Constable Dixon gave evidence that at the intersection of Booth Street and Macquarie Road, the applicant stopped his vehicle next to the police vehicle on the left hand side. The applicant proceeded to make gestures and mouthed words indicating that he wanted the officers to roll down the window. When the window was wound down, Officer Dixon heard the applicant ask two or three times, “Why are you taking photos of my house?” Officer Dixon said he may have responded, “I don’t know what you’re talking about”. He said that the interaction was over fairly quickly.

393. Between 3:06pm and 3:16pm, there was a discussion between Hozan Alou, Mr Atai and the applicant on the Bricks chat WhatsApp forum about Farhad Mohammad’s body during which the applicant asked to see photos. The exchanges between them included Mr Atai stating, “Allahu akbar the young brother had a smile on his face and his finger up” and the applicant stating, “There’s no burial for the shaheed [Muslim Martyr]”. [133]

     133. Ex BM, p 81-85.

394. Between 3:16pm and 3:37pm, the applicant posted on the Bricks chat WhatsApp forum that there were two cars outside his house today taking photos. He posted that he “chased them”, they were “[c]owards”, “[t]here was a great amount of fear on there face”, he “pulled the chase” and “like wow dealing with babies here”. [134]

6 October 2015

134. Ex BM, p 87-89.

395. Between 1:13pm and 1:29pm, there was a discussion between Mr Alou, Mr Atai and the applicant concerning surveillance in his street. The applicant stated:

“Wow these guys are so bad

I was doing surveillance in my street

And caught another car”. [135]

135. Ex BM, p 93.

396. Later that afternoon, the applicant recorded a video on his iPhone of himself talking, which he posted to the Bricks chat WhatsApp forum. The applicant stated, “Welcome to the surveillance show…where every angle is covered” while sipping on a slurpee and filming out his bedroom window. [136]

7 October 2015

136. Ex BM, p 96.

397. On 7 October 2015, the applicant was arrested. A search warrant was executed at his residence in Booth Street, Marsfield and his motor vehicle registration number YRQ652. The items seized included $660 cash which was found in the applicant’s bedroom.

8 October 2015

398. Detective Sergeant Forsyth’s evidence included that on 8 October 2015 a resident of the unit block at 67-73 Lane Street, Wentworthville, Mr Saunders, found some mobile phones packaged together in bubble wrap and jammed under the door of a toilet block in the common area at the back of the unit block. [137] Detective Sergeant Forsyth agreed that police had been able to establish that these phones were previously used by Farhad Mohammad and Shadi Mohammad. [138]

     137. Tcpt, 7 February 2019, p 534(7).

     138. Tcpt, 7 February 2019, p 534(18).

Wickr

399. Detective Sergeant Forsyth gave evidence about “Wickr”. The police officer was referred to Ex BM, which was a document prepared by Detective Senior Constable Eljarrar with respect to installations on the applicant’s mobile phone. She agreed that two of the installed applications found on the applicant’s phone were “Wickr” and “wickrshare”. It was her understanding that police had no success in accessing any communications using Wickr in the case and that any message sent by Wickr, if sent in a certain way, would disappear over time.

Documentary material tendered in the defence case

400. In the chronological review of the evidence, I have referred to some of the documentary material upon which the applicant placed emphasis in the trial. Whilst I do not propose to detail each of the 32 exhibits tendered in his case, I will mention Exhibits 2, 31 and 32.

401. Exhibit 2 was Mr Alameddine’s criminal history. Exhibit 31 is a compilation of the communications between Mr Alou and the applicant between 28 July 2015 and 3 October 2015 concerning “eating out” and Exhibit 32 is a compilation of the usage of the term “[m]illions” or “[m]illionaire” by the applicant when communicating with Mr Alou between 28 July 2015 and 28 September 2015 and with Mr Catovic on 4 October 2015.

Further consideration

402. In submissions, both at trial and in this Court, individual items of evidence have been separately considered. None of these items of evidence are indispensable intermediate facts that must be proved beyond reasonable doubt. Indeed, the trial judge rejected in R v Dirani (No 20) [2018] NSWSC 1153, at [19]-[20], the applicant’s request for a Shepherd[139] direction that proof of the applicant acting as a lookout or conducting counter-surveillance activities for Mr Alou on 2 October 2015 was an indispensable intermediate fact requiring proof beyond reasonable doubt. No complaint is made about this decision.

     139. Shepherd v The Queen [1990] 170 CLR 573; [1990] HCA 56.

403. The jury’s obligation was to take all of the evidence together which included the evidence in the applicant’s case.

404. As has been mentioned at [221] above, it was the Crown case that prior to the meetings with Mr Alameddine on 2 October 2015, the applicant provided emotional, religious and ideological support to Mr Alou and provided money to assist in the purchase of the gun.

405. Having reviewed the whole of the record (excluding the inadmissible parts of the evidence of CIN 1877),[140] I have concluded that when the evidence is viewed in combination, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was a member of the conspiracy to commit a terrorist act before the journey on 2 October 2015 and to reject as reasonable possibilities the explanations of innocence advanced by his Senior Counsel.

     140. See [80]-[94] above.

406. There was ample evidence for the jury to make this finding. Without specifically mentioning all of the WhatsApp forum posts and exchanges between the applicant and others which have been detailed in the review of the evidence, it was open to the jury to find:

1. At all relevant times, the applicant held extremist Salafist views.

2. He had a close association with Mr Alou and Mr Atai, who shared his extreme Salafist beliefs.

3. Mr Alou, Mr Atai and Farhad Mohammad were members of the conspiracy to carry out a terrorist attack.

4. In furtherance of the conspiracy, Farhad Mohammad left a black sports bag at the Parramatta Mosque.

5. On that very day, there was a high level of telephone contact between Mr Alou, Mr Atai and the applicant. Mr Alou called the applicant ten times and the applicant called Mr Atai seven times. It was open to the jury to find that this level of telephone contact supported the Crown’s contention that the applicant was a member of the conspiracy at this time.

6. On the day Mr Alou picked up the black sports bag from the Parramatta Mosque (18 September 2015), the applicant recorded on his iPhone a video of himself saying:

“Ladies and Gentlem[e]n, this is for all you pigs out there, you dirty mother dogs, you little hypocrites among us, you got nothing on us, we’re coming for you, we’re gonna dominate you, what you going to do”. [141]

141. Ex BM, p 231; Ex BU, p 65-66.

7. The words spoken by the applicant include “we’re coming for you, we’re gonna dominate you”. It was open to the jury to find that this threatening message demonstrated the applicant’s knowledge of the steps that were being taken towards the commission of the terrorist attack on 2 October 2015.

8. On 27 September 2015, Mr Alou posted the message on the Bricks chat WhatsApp forum which is quoted at [247] above, as is the applicant’s response. Prior to the message being posted, Mr Bakhtiari had agreed to lend Mr Alou $100 and on the next day Mr Alou telephoned Mr Elkholy, who advised against conducting the transaction electronically as “dodgy records will show up”. [142]

   142. See [252] above.

9. Later on that day, the WhatsApp chat exchange with Mr Alou included the applicant stating, “You didn’t come past…Pick up the millions”. [143]

   143. See [254] above.

10. Although there was evidence of previous loans made by the applicant to Mr Alou and his use of the term “millions”, it was open to the jury to reject as a reasonable possibility that the applicant’s offer of $50 was made for a purpose other than the purchase of the gun when the evidence is viewed in combination.

11. The contact between the applicant, Mr Alou and Mr Atai continued after 18 September 2015. On 20 September 2015, Mr Atai met Farhad Mohammad at the Parramatta Mosque. On the same day, Mr Alou called the applicant and the applicant attempted to call Mr Atai.

12. On the next day, Mr Alou and Mr Atai met X2 seeking to purchase a gun. Mr Alou and the applicant next met on 26 September 2015, on which day the applicant changed the Bricks chat WhatsApp forum icon to an image of armed militants with the caption, “RISE UP To The Call Of Ummah” (see [238] above).

13. It is unnecessary to refer to the other posts which are detailed at [245]-[251] above. It is sufficient to state that the applicant’s post quoted at [251] above, upon which the applicant’s Senior Counsel founded the submission that the applicant was not criminally involved, does not sit happily with the other posts made by him on 9 July 2015 (see [222] above) and 4 October 2015 (see [389] above).

14. Other evidence which the jury was entitled to take into account in finding that the applicant’s offer of $50 was for the purpose of the purchase of the gun included:

1. Mr Alou’s request for $100 was made to the members of the Bricks chat WhatsApp forum and not individually to the applicant. He had previously sought $200 from Mr Bakhtiari.

2. Mr Elkholy was concerned about “dodgy records” showing up and enabled a cardless cash transaction to take place.

3. In the afternoon following the exchange about “[p]ick up the millions” and meeting at Marsfield, the applicant sent the following post to Mr Alou:

“If you need anything let me know.

Patience

Allah is the best of planners

Do you think you will believe and not get tested?”[144]

144. See [215] above.

4. On that night, the applicant changed the Bricks chat WhatsApp forum icon to an image depicting masked militants holding weapons, standing in front of a large ISIS flag.

4. It was open to the jury to find that not only were the applicant’s post to Mr Alou and change of icon expressions of his extremist beliefs but were expressions of emotional, religious and ideological support for Mr Alou who at that time was experiencing difficulties in obtaining a firearm.

5. On the next day, Ms Perger telephoned Mr Alou during which she told him:

“…Milad said to call your brother and tell him to come – send me your brother’s number so that he can call your brother to tell him to come outside when he gets there ’cause he has to give him money or something”. (See [260] above)

7. During this telephone conversation, Mr Atai’s wife could be heard in the background saying, “don’t say it over the phone”.

15. It was open to the jury to find that shortly after 9:29pm on 29 September 2015, the applicant met Mr Alou at Bursill Street, Guildford. It was also open to the jury to find that Mr Atai attended the same premises before 10:35pm. Arguments were advanced by the applicant’s Senior Counsel based on cell tower records that it was not the applicant who was seen walking with Mr Atai towards Marian Street. Senior Counsel also placed emphasis on the content of the exchanges between the applicant and Mr Alou for the submission that the meeting was about Mr Alou’s family issues and had nothing to do with the conspiracy. [145]

    145. See [266]-[270] and [285] above.

16. In my view, the timing of the text, telephone calls and the cell tower records support a finding that Mr Alou, Mr Atai and the applicant met at Guildford between 9:30pm and 10:30pm.

17. The jury was entitled to find that this meeting was not confined to Mr Alou’s family problems but had as its purpose the furtherance of the conspiracy.

18. The jury was entitled to reject the applicant’s submission that the correct version of the 1:53pm car to car conversation on 2 October 2015 was contained in Ex 12 and concerned Mr Alou’s brother Kawa. I have listened to the audio tape (Ex Q) and it was plainly open to the jury to hear the word “Parra” and not “Kawa”. Furthermore, after listening to the tape, the jury would not be surprised that the applicant’s versions of the conversation tendered in the first trial mentioned “Parra” and there was no reference to “Kawa”. It was open to the jury to find that the correct version of the conversation was Ex P.

19. It was open to the jury to find, when Mr Alou said, “You know I told you when he’s going to thing, did I tell you where? I told you, I said it (Indistinct) car”, and further, “But it will affect, the brother, Parra, affect the masjid, mine, it will affect me”, the reference to the “thing” was the planned terrorist attack about which the applicant had previously been told. It was further open to the jury to find that the applicant was told that the planned terrorist attack was going to affect Parramatta, the Parramatta Mosque and Mr Alou and the reference to “cause the brother’s got heat and everything, he’s got a lot of heat” was to Mr Alameddine.

20. This evidence supports the Crown case that the applicant was a member of the conspiracy before the journey on 2 October 2015.

21. The jury was entitled to reject the applicant’s submission that “[c]an’t get involved” should be heard as the applicant saying “I can’t get involved bro” and what the applicant was saying was that he could not get involved in Mr Alou’s family dispute. Whatever might have been meant by the applicant by these words, it is plain that he did not leave Mr Alou but sat on the wall with him in Merrylands Park for about seven minutes and remained after Mr Alameddine arrived.

407. Much has been submitted about the road journey on the afternoon of 2 October 2015. Having viewed the video footage (Ex AJ), which is to be considered in combination with all of the evidence in the trial, I have concluded that it was open to the jury to find that the applicant provided cover and support for Mr Alou when he met with Mr Alameddine to obtain the firearm and to reject as a reasonable possibility that the sole purpose of his journey was to have lunch with Mr Alou.

408. In submissions in this Court, the applicant argued that the Crown invited the jury to draw 19 inferences from the evidence, all of which could be explained in a manner which was submitted to be not only inconsistent with the Crown’s case theory but was a reasonable explanation which the jury should have accepted. A further submission was that these inferences were highly speculative.

409. I do not propose to detail the 19 inferences to which this argument relates. It is sufficient to reiterate that the evidence is not to be considered in a piecemeal way. When the totality of the evidence was considered, the jury was entitled to reject what were submitted to be the applicant’s reasonable explanations.

410. As to the complaint that the inferences were highly speculative, the applicant’s Senior Counsel did not object to any of them at the trial. Furthermore, none of the inferences are the subject of individual grounds of appeal. In any event, I am not persuaded that the inferences the Crown invited the jury to draw were merely speculative.

411. Upon my independent review of the evidence, I do not agree with the applicant’s contention that there was a lack of evidence with which the jury could find proved beyond reasonable doubt elements (a), (b), (d) and (f) of the offence. [146]

     146. See [189] above.

412. The whole of the evidence does not give rise to reasonable explanations other than the applicant’s guilt. I am not satisfied that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of the applicant’s guilt on the first count on the indictment.

413. Ground 1 of the appeal has not been made out.

The proviso

414. I am of the same view as the Chief Justice that a substantial miscarriage of justice has occurred and the proviso should not be applied.

Orders

415. Accordingly, I agree with the orders proposed by the Chief Justice.

416. N ADAMS J: I have had the considerable advantage of reading the judgments of both Bathurst CJ and Price J in draft.

417. I agree with the orders suggested by Bathurst CJ for the reasons provided. I am not satisfied that error has been established in relation to grounds 2, 4 and 5 but I am satisfied that error is disclosed under ground 3. It is to be accepted that CIN 1877’s descriptions of surveillance, anti-surveillance and counter-surveillance techniques were based on his knowledge, skill and experience and were relevant to assist the jury in their consideration of the activities of the applicant on 2 October 2015. On that basis, I agree that no error is disclosed in the admission of the evidence of CIN 1877 summarised above by Bathurst CJ at [29]-[37]. The difficulty is that his evidence went beyond the scope of that admissible evidence to include opinions based on speculation and/or not based on any identified expertise. For my part, I found the evidence of CIN 1877 extracted by Bathurst CJ above at [49] and [53] to be particularly problematic.

418. The surveillance evidence was that although the applicant initially parked his vehicle at Merrylands Park in a position that would permit him to see if any cars were following them, he then changed his vehicle’s position to one which would have made it more difficult for him to at as a “cockatoo”. CIN 1877’s “expert” evidence about this was to the effect that although the accused’s first position was “much better” for counter-surveillance, he still thought that the applicant was “being that support person for Mr Alou” in the second parked position. CIN 1877 later said of the second position, “[i]t’s not the most opportune or best position probably to be in to see what’s behind him, but its definitely achievable”. Thus, the police officer was permitted to give “expert” evidence that although the applicant’s actions were not obviously consistent with him acting as a lookout, it was still technically possible that that is what he was doing and it was the opinion of the officer that that was in fact what the applicant was doing. That opinion was not based on any identified expertise and was a matter for the jury.

419. As for the exercise of the proviso, I have had regard to the fact that the evidence of CIN 1877 was directed at a critical part of the Crown case. As Bathurst CJ has concluded above at [137], it is simply impossible to assess the extent to which the jury took this evidence into account in reaching its conclusion. On that basis, I am satisfied that a substantial miscarriage of justice has occurred within the meaning of s 6(1) of the Criminal Appeal Act1912 (NSW) and the proviso should not be applied.

420. I also agree with Price J that ground 1 should be dismissed for the reasons provided by his Honour. Having reviewed the whole of the evidence, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. Although it is to be accepted that aspects of the Crown case were open to different explanations, the Crown case does not fall to be considered in a piecemeal way, as was accepted by counsel for the applicant. As for Exhibit Q, I too have listened to it and am well satisfied that it was open to the jury to hear the word “Parra” and not “Kawa” in that conversation between the applicant and Mr Alou.

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Endnotes

Decision last updated: 13 April 2023