DPP (Cth) v Fattal

SUPREME COURT OF VICTORIA

COURT OF APPEAL

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	S APCR 2012 0020
v
WISSAM FATTAL
WISSAM FATTAL	S APCR 2012 0188
v
THE QUEEN
WISSAM FATTAL	S APCR 2012 0003
v
THE QUEEN
- - -
DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	S APCR 2012 0021
v
SANEY EDOW AWEYS
SANEY EDOW AWEYS	S APCR 2012 0169
v
THE QUEEN
SANEY EDOW AWEYS	S APCR 2012 0047
v
THE QUEEN
- - -
DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	S APCR 2012 0022
v
NAYEF EL SAYED
NAYEF EL SAYED	S APCR 2012 0187
v
THE QUEEN
NAYEF EL SAYED	S APCR 2012 0027
v
THE QUEEN

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JUDGES:	BUCHANAN AP, NETTLE and TATE JJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	17, 18 June and 29 August 2013
DATE OF JUDGMENT:	2 October 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 276
JUDGMENT APPEALED FROM:	[2011] VSC 681 (King J)

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CRIMINAL LAW – Conviction – Conspiring to do acts in preparation for or planning of terrorist act contrary to ss 11.5(1) and 101.6(1) of Criminal Code (Cth) – Reconnoitring Holsworthy Barracks and seeking Islamic fatwa for armed attack on barracks – Whether convictions unsafe and unsatisfactory or otherwise unreasonable – Whether open to find accused committed acts in furtherance of conspiracy – Trial – Whether trial unfair by reason of Crown alleging lies evidencing consciousness of guilt against one accused but not another – Jury directions – Whether judge sufficiently directed jury as to need for Crown to prove intent to advance Islam through violence – Whether judge erred by creating new arguments for Crown – Inconsistent verdicts – Whether acquittal of some co-accused inconsistent with conviction of others – Indictment – Severance – Whether strength of Crown case against one co-accused so much weaker than strength of Crown case against another as to require that indictment be severed – Possible alternative verdicts – Whether judge bound to leave State offence as possible alternative verdict to Commonwealth offence charged – Constitutional law – Freedom of religion – Whether proscription of advancement of religious causes by violent means a law ‘for prohibiting the free exercise of any religion’ contrary to s 116 of the Commonwealth Constitution – Evidence – Whether evidence of accused’s hostility towards Australia and her citizens to be excluded as evidence of which the probative value was outweighed by prejudicial effect – Whether judge sufficiently directed jury that evidence admissible against one accused not admissible against another – Whether judge erred in directing jury that some aspects of evidence important and others peripheral – Criminal Code (Cth), ss 11.5(1) and 101.6(1) – Commonwealth Constitution, s 116.

CRIMINAL LAW – Sentence – Each offender sentenced to 18 years’ imprisonment with a non-parole period of 13 years and six months – Whether sentence manifestly excessive – Amateurish operation – Application of three-quarters rule in determining parole period – Lodhi v The Queen (2007) 179 A Crim R 470, R v Elomar (2010) 264 ALR 759, and Benbrika v The Queen (2010) 29 VR 593, considered.

CRIMINAL LAW – Sentence – Director’s appeal – Whether sentence manifestly inadequate – Seriousness of offence and maximum penalty – General and specific deterrence – Protection of the community.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Fattal	Mr Wissam Fattal in person (Conviction) Mr P F Tehan QC with Ms C A Boston (Sentence)	Victoria Legal Aid
For the Applicant Aweys	Dr D J Neal SC with Mr M D Stanton	Robert Stary Lawyers
For the Applicant El Sayed	Mr T Alexander with Mr H Kirimof	Pasha Legal
For the DPP (Cth)	Mr N T Robinson SC with Mr D D Gurvich	Commonwealth Director of Public Prosecutions

BUCHANAN AP
NETTLE JA
TATE JA:

Following a trial of almost six months’ duration in the Criminal Division, on 23 December 2010, each of Wissam Fattal (now aged 36 years), Saney Edow Aweys (now aged 30 years) and Nayef El Sayed (now aged 29 years) (‘the applicants’) was convicted of one count of conspiring to do acts in preparation for, or planning, a terrorist act, contrary to ss 11.5(1) and 101.6(1) of the Criminal Code (Cth) (‘the Criminal Code’). Two other co-accused, Yacqub Khayre and Abdirahman Mohamud Ahmed, were acquitted of the same offence. After pleas in mitigation of penalty were heard on 5 and 6 May and 31 August 2011, on 16 December 2011 each of the applicants was sentenced to a term of 18 years’ imprisonment with a minimum term of 13 years and six months’ imprisonment. Each applicant now seeks leave to appeal against conviction and sentence on a range of grounds of appeal and the Director of Public Prosecutions appeals against what he contends to be the manifest inadequacy of the sentences.

For the reasons which follow, we consider that each of the applications and the appeals should be dismissed.

The facts

In brief substance, the Crown case at trial was as follows.

(1) Between 1 February 2009 and 4 August 2009 the applicants conspired with one another and unknown other persons to do acts in preparation for, or planning, a terrorist act.

(2) The proposed terrorist act was to attack the Australian Army Base at Holsworthy in New South Wales (the ‘Holsworthy Barracks’)[1] and to shoot and kill as many soldiers and other persons therein as possible.
[1]Sentencing remarks, R v Fattal & Ors [2011] VSC 681, [25].

(3) The intention was to advance Islam by violence for the purposes of coercing or influencing the Australian Government by intimidation, or alternatively to intimidate the public or a section of the public.[2]
[2]Ibid [4] and [29].

(4) The applicants carried out the acts in preparation with the intention that the proposed terrorist act, if carried out, would ‘cause … either serious harm to a person, serious damage to property or a person’s death, or create a serious risk to the health or safety of the public or a section of the public.’[3]
[3]Ibid [29]

(5) Fattal’s role in the conspiracy was to assess the susceptibility of Holsworthy Barracks to attack and provide encouragement, predominately to El Sayed, for the proposed terrorist act.[4]
[4]Ibid [21], [90]-[91]. The sentencing judge referred to the schedule of overt acts of FATTAL, specifically CCTV footage of FATTAL attending the entrance of the army base, as well as records of listening devices. See Exhibit 95.

(6) Aweys’ role in the conspiracy was to seek a fatwa (a religious ruling from Muslim muftis as to whether it were permissible in Islam [halal] or impermissible [haram]) to carry out the proposed terrorist act, and to assist El Sayed also to seek a fatwa for the proposed terrorist attack.[5]

(7) El Sayed’s role in the conspiracy was to obtain information from Fattal about the suitability of Holsworthy Barracks as a target for the proposed attack, pass that information onto Aweys and seek a fatwa.[6]

[5]Ibid [90] and [92]. The sentencing judge referred to the schedule of overt acts of AWEYS, specifically intercepts of telephone conversations recorded. See Exhibit 96.

[6]Ibid [90] and [92]. The sentencing judge referred to the schedule of overt acts of EL SAYED, specifically records of calls and listening devices. See Exhibit 97.

Fattal’s appeal against conviction

On 21 August 2012, Fattal filed a handwritten notice of application for leave to appeal against conviction in which in effect he advanced two grounds of appeal: (1) that the judge erred by withholding evidence from the jury; and (2) that the jury made ‘many mistakes’. On 23 October 2012, he also filed with the Registrar a handwritten case in support of his application and, although he appeared unrepresented at the hearing of the application,[7] he made some oral submissions which more or less accorded with the contents of his written case.
[7]Although he was represented by senior counsel for the purposes of his application for leave to appeal against sentence.

It is convenient, therefore, to start with the written case, which was follows:

Hi, my name Wissam Fattal. Thank you to be care [sic] about my case, about this case. Many thin[gs] happen[ed] at the Court. I don’t know why the jury said I am guilty [of] my charge about my intention. But my intention not clear about acting terror attack or acting; but my intention show prepare [sic, I was preparing] to go overseas. You can find it [sic, you can find that from the fact that] when I was in prison talk to [sic, I told] my friend I am seck [sic, seeking] to go [to] Saudi Arabia or Yemen to learn my religion, or [to] Lebanon. When I speak [spoke] to Mazen in Sydney, I told him about Lebanon [about my intention] to go there and he told the police. And one thing: Hamza he send to me letter when I was in prison; last letter I find in my property after they charge [sic, found] me guilty. I don’t know if Patrick Tehan [QC] … got it. I gave it to Nadia (solicitor). He [Mazen] rwiT [sic, wrote] I am in egipTian [sic, Egypt] waiting for you. The prison M.R.C. hid it from me and my relationship between me and Hamza very strong and he was my best friend. We prepare to go overseas for Jihad or knowledge about HolThwolThy [sic, Holsworthy]. Hamza he want me to go there, he was every time encourage [sic, all the time encouraging] me to go [to] Sydney. The police arrest[ed] me in Sydney for charge [of] assault, not for terrorism. They find me not guilty [by reason of] self-defence. Had fight with guys in Melbourne. Hamza told me run away to Sydney. At the court, he said he didn’t know me I am [sic, know that I was] going to Sydney and he swear to the Bible after they find him. He know and he told me to pick me up from his car and he give me card secret phone number. When the police arrest me I have small bag and his number inside. The police said to the Judge this tissue paper at the court. They take photo for [sic, of] my small bag. They find cards phone numbers. Where is this cards? The police hid it. You can find it from the prove me against to kill innocent people [sic, you can find from it that I was against killing innocent people].

Hamza he told me to kill people here in Australia. I said no God forbid this. The reason is we talk about the war in Afghanistan. They kill innocent people you can find it from his recording: at the end he want me to do something in Australia. I said no, we going overseas. We talk about Australian soldier [who] kill[ed] two kids and their father. I was upset just at this moment, but I don’t have any intention to do something in Australia. He advise me to go Sydney because the police want to arrest me. They attack my house 3.00 am in Melbourne, Hamza advise me, and the police watch me in Melbourne and take photo when I run away to Sydney, every step. Why didn’t [they] arrest me.
He said to me his friend, name Ali (he look Arab he got short beard), in Sydney call me from his phone. I said give me his number. He refuse. He said you find him in Salafi mosk. The Police in Sydney take photo every step except the Salafi mosk area and around it. I meet him many time there and he give me phone to call Hamza. The reason is he want me to go to hol Th armisTaTion [sic, Holsworthy Army station]. I Left this phone in blue big bag, you can find my bag in photo. When the police arrest me, I said I need my bag. They said leave it, we take it for you. I told the legal team about Ali. They said we don’t have [to] prove. But after the police arrest me, Mazen (the one in whose house I was living) he said at the court, one man he take my bag, he got short beard. Until now I don’t get my bag. I have many STUFF important. Where is my bag? Why the Police didn’t take it [for] evidence, and Ali Phone was inside. I didn’t make intention. Ali take my bag. But one friend in prison, I told him my story and he like to read my case after he find it. And he told me that, you can find it from the witness Mazen.
Before I went to Army base, Hamza told me. I refuse it. He said to me, his friend Breaklieng work next to the base, he give good money, go any time and told him [sic, tell him] I am your friend; and, [at the] same time, have look to the base. If you look to camera [you will see that] I’m really look[ing] for job, when I was in Sydney. I am seek[ing] to find job.
About my relationship between me and Nayef about work: The police said [about] weapons, the[y] prove show Nayef he buy all the STUFF for Breaklieng. If we want to do terror act why he buy all this STUFF before I went to the Army base? Hamza Told me don’t call me at all, I called [sic, shall call] you back. I said, give me Breaklier number. He said, he’s next to station, you just go. Next day, after I can’t remember, he send to me text message (I am for you everything for you) after I went to the Army base. At the court he said he didn’t know I am in Sydney.
About Yacoub: Hamza told me to call him to get the address, but Yacoub he didn’t send me back and he didn’t; [he] was in Preston mosk. Hamza was there 5 minutes before I got message. He left and he got machine in his car to show he left. At the court, he said he have friends in Preston (Officers) and they know every thing. Why didn’t [they] take photo from the public phone? The public phone had camera and they know about message. Why didn’t [they] take fingerprints. That … mean[s] one of these officers sent it. Easy to prove who’s sent it from the police.
About Hassan: Who’s told him to call me and ask me about the price, because Nayef ask me about the price each break and [at the] same time ask me did you go there. I don’t told him at all. How he know? Why the police didn’t arrest him?!!
At the end, I can’t understand why you don’t make attention about these points: I don’t have any relationship with Somalian about who’s give FATWA about Army base and ask?!! My FATWA between me and NayeF about money. You can find the proof. I am sorry about my English [it makes it] very hard to explain, but I wish [you] to study my case; you find more evidence. Thank you any way.
About Sydney: The camera never take photo [of] when I meet Alig. [I was in] street about one kilometre walking [and not] even one photo, most of my time there.
About the people [who] ask for Fatwa from middle east hub’s. These people may be spy. Many spy come to the mosk [to] ask for Fatwas.
You must to drop this case. I don’t know why you don’t drop it?!!!! Plenty of cameras. The mosk let the police use them any time [to] catch these middle east[eners]. Why didn’t [they] show at same day when I got the stage who’s in moske? About my first charge, they use these cameras in mosk [as] evidence against me (assault charge), and I meet Hamza in mosk – only me and him. If they said Yacoub send this text, why didn’t [they] catch him at the moske (camera) or phone box? Every step. But this is the most important part about …more important [than] the assault charge. This is terror charge They [have] evidence, why they ignore it?,
I am not policeman. To prove what problem [I have] I can’t read good English. Very hard. But I can explain more and understand good English. That’s why I can’t prove from the case.
Any way, God [be] with me,
Wissam Fattal

Ground 1: Improper exclusion of evidence

Some of the points made in the written case about the improper exclusion of evidence were advanced by defence counsel at trial. Principal amongst them was a contention that Fattal had no intention of staging an attack on Holsworthy Barracks and that in truth he had been set up by an undercover police operative, by the name of Hamza, to go there to look for work as a bricklayer at a building site close by. On that basis, defence counsel submitted, the jury could not exclude as a reasonable possibility that Fattal’s visit to Holsworthy was entirely related to his attempts to find work as a bricklayer and therefore nothing to do with terrorism.

It was not suggested at trial that there was any further evidence which ought be taken into account but, based on what is said in Fattal’s written case and was reiterated by him in the course of his oral submissions, we understand him now to say that there was evidence that a text message as to the address of Holsworthy Barracks was sent by Hamza to Fattal from a public phone box near the Preston mosque and that, if put before the jury, it would have demonstrated the truth of Fattal’s contention that Hamza set up Fattal. It also appears from Fattal’s written case, and he repeated in the course of his oral submissions, that there was a letter taken from him while he was held in remand which showed that, at relevant times, his intention was to go abroad to Yemen. He contended that the judge was in error in failing to identify and admit that evidence for consideration by the jury.

Those submissions face difficulties at several levels. Hamza gave evidence at trial, which presumably was accepted by the jury, that he was elsewhere at the relevant time and so could not have sent the text message. Hamza’s evidence as to his whereabouts was corroborated by testimony of Detective Sergeant Peter Jones concerning a tracking device which was fitted to Hamza’s car. There is nothing to support Fattal’s claim that he was deprived of any letter which might have established his innocence. Nor was it explained why, if there were evidence that he had an intention of travelling to Yemen, that should be regarded as excluding or throwing doubt on the inference that he intended an armed attack on Holsworthy Barracks take place. Furthermore, it appears from the written case that, if there were any evidence of Hamza’s involvement or of Fattal’s intention of travelling to Yemen, it was known to defence counsel at the time of trial and an informed decision was made not to adduce it.

In those circumstances, we consider that the first ground of appeal must be rejected.

Ground 2: Unsafe and unsatisfactory

We treat the contention that the jury ‘made many mistakes’ as one that the verdict is unsafe and unsatisfactory. We also reject it. As the Crown submitted, there was a substantial body of evidence which linked Fattal to the conspiracy and to the overt acts which were carried out in furtherance of it. It included that on 24 March 2009, Fattal sent a SMS text message to Khayre from Sydney requesting the address of the Holsworthy Barracks. Later that day, Fattal spoke to Khayre by telephone and sought confirmation that he had received and understood Fattal’s SMS text message. On 26 March 2009, Fattal spoke to Khayre by telephone and Khayre confirmed to Fattal that he was still awaiting the address of the potential target. On 27 March 2009, Fattal received by SMS message sent from the public telephone box near to the Preston mosque details of the whereabouts of the Holsworthy Barracks. The next day, 28 March 2009, Fattal took the train to Holsworthy Barracks station and there conducted a reconnaissance of the entrance to the barracks. On 1 April 2009, in further telephone conversation, El Sayed told Fattal that he had arranged for Khayre to travel to Somalia to request a fatwa for the proposed attack from a Somali sheikh. On 21 April 2009, Fattal met El Sayed and El Sayed reported to Fattal that Khayre had reached Africa but not yet Somalia. On 3 May 2009, Fattal met El Sayed and El Sayed reported to Fattal that Khayre had reached Somalia and had gone in pursuit of the fatwa. On 9 June 2009 Fattal met El Sayed and El Sayed reported to Fattal that he had spoken to a Somali sheikh about the fatwa and would speak to him again about it within a day or two.

There was also a further substantial body of evidence that Fattal was motivated by hatred and contempt of kuffar[8] Australians and Australian institutions. We deal with that evidence at greater length below in relation to Aweys’ appeal against conviction.
[8]Non-believer.

Suffice it to say for present purposes that, taking that evidence together with the evidence of Fattal’s direct involvement in the reconnoitring of Holsworthy Barracks and indirect involvement in procuring the fatwa for the purposes of the

proposed attack on the barracks, we think it was well open to the jury to be satisfied beyond reasonable doubt that Fattal was guilty as charged.

Aweys’ appeal against conviction

In his notice of application for leave to appeal against conviction dated 6 August 2012, Aweys advanced the following six grounds of appeal:

(1) The learned judge erred when she failed to correct the proposition put by the Crown, which was repeated in her Honour’s charge to the jury, that as a matter of law the answer to the religious question did not matter, because the making of the request was a significant step in the planning or preparation for a terrorist act.

(2) The verdict of guilty was unreasonable and cannot be supported having regard to the evidence.

(3) The verdict of guilty was inconsistent with the verdict of not guilty in the trial of the co-accused Ahmed.

(4) With regard to remarks made by the applicant about the Victorian bushfires, the learned trial judge erred in failing to exclude those remarks, and further erred with regard to the directions given to the jury as to how it could use that evidence.

(5) With regard to evidence purporting to demonstrate the applicant’s consciousness of guilt, a substantial miscarriage of justice was caused by the Crown treating the applicant differently to the co-accused Ahmed, and the learned trial judge not directing the jury with regard to the applicant’s defence.

(6) A combination or aggregation of errors resulted in a substantial miscarriage of justice.

Ground 1: Intention to promote conspiracy

Central to the Crown’s case against Aweys was an allegation that he committed an act in furtherance of the conspiracy by seeking opinions from two Somali sheikhs, Hayakallah and Abdirahman, as to whether it was halal or haram to carry out the proposed attack on the Holsworthy Barracks (‘the religious question’). At trial, the prosecutor submitted in the course of his final address to the jury that, as a matter of law, it was irrelevant whether the Somali sheikhs answered the religious question ‘yes’ or ‘no’; it was the act of asking the question which was the act in furtherance of the conspiracy. In giving final directions to the jury, the judge restated the substance of that proposition as part of her Honour’s summary of counsel’s arguments.

Aweys’ first ground of appeal is in effect that the Crown’s submission, and the judge’s repetition of it as part of her final directions, were calculated to lead the jury wrongly to conclude that it was open to convict without being satisfied that Aweys’ intention in asking the religious question was to further the conspiracy. Although the judge had earlier specifically directed the jury that they could not convict unless satisfied that such was his intention, counsel for Aweys submitted that, in order to dispel the misapprehension created by the prosecutor’s address, it was necessary for the judge to reiterate her earlier direction as to intention and specifically to point out to the jury that the prosecutor’s submission was incorrect in that it suggested that intention to advance the conspiracy was inessential.

We do not accept the argument. When the relevant parts of the prosecutor’s address are read as a whole, they do not suggest that intention to advance the conspiracy was inessential. Nor did the judge’s directions convey that impression.

The relevant parts of the prosecutor’s final address were as follows:

I got to the stage of saying what is apparent in this conversation is also implicit in what Aweys asked Hayakallah and later Abdirahman, in pursuit of the fatwa, you might think, the question is, is it permissible in Islam, and that is a question of importance in the sense that it was in pursuit of the advancement of Islam, that the object of getting the fatwa was to ensure that the attack on the army base was permissible and then the benefits of being a martyr and all of [the] rest of it flowed …
That is a factual issue, if you like, of what was going on. As a matter of law, and her Honour will tell you this, it doesn’t matter to the questions of guilt or innocence, guilt being the verdict, we would submit, whether you get a yes or no because the offence is, the Crown says, of conspiring to take steps in planning or preparation of a terrorist act and the planning or preparation includes, the Crown says, the going to Holsworthy and ascertaining whether it was a suitable target, the barracks, and taking the steps of pursuing the fatwa. From the point of view of the elements of the offence, it does not matter what the answer is …

The judge provided the jury with a document which set out each of the elements of the alleged offences, and took the jury through the document, effectively line by line. The document included the following:

In addition, the expression ‘acts in preparation for a terrorist act or acts’, which is used in elements 1 to 5 inclusive, requires in relation to each of those elements that you be satisfied beyond reasonable doubt that the accused intended the ‘acts in preparation‘ to be in preparation for a terrorist act or acts that is, an act (or acts) having all of the essential characteristics of a terrorist act.
The essential characteristics of a ‘terrorist act’ are set out in paragraphs (1) to (4) below. So that for you to find Element 6 has been proved you must be satisfied beyond reasonable doubt –
(1) The accused intended that the acts in preparation or planning would be for an action or threat of action involving:
An armed attack on the Australian Army barracks at Holsworthy in New South Wales, Australia …

The judge also provided the jury with a ‘Decision Tree’ which contained the following:

Questions for consideration
…
5.The accused, or at least one other party to the agreement, carried out an observable physical act in preparation or planning for a terrorist act (or acts) in furtherance of the agreement …
6.In addition, the expression ‘acts in preparation for a terrorist act or acts’ which is used in elements 1 to 5 inclusive, requires in relation to each of those elements that you be satisfied beyond reasonable doubt

that the accused intended that the ‘acts in preparation’ to be in preparation for a terrorist act or acts: that is, an act (or acts) having all of the essential characteristics of a terrorist act.

Finally, the relevant parts of the judge’s charge included this:

If you go to paragraph 6 on page 2 of [the Elements of the offences document], you will see the following: ’6. In addition, the expression “acts in preparation or planning for a terrorist act or acts”, which is used in elements 1 to 5 inclusive, requires in relation to each of those elements that you be satisfied beyond reasonable doubt that the accused intended the acts in preparation or planning to be in preparation or planning for a terrorist act or acts, that is an act or acts having all the essential characteristics of a terrorist act’ …
…
Characteristic 2, and you notice there is an ‘and’. That means they have to prove 1 and they have to prove characteristic 2. ‘The accused intended that the acts in preparation would be for an action or threat of action to be carried out or threatened in Australia. …’
…
In the present case the Crown has undertaken the task of proving that each of the accused held those precise intentions in relation to the acts in preparation to be carried out in furtherance of the agreement…

Having regard to those directions, we see no reason to doubt that the jury would well have understood that Aweys’ acts of seeking answers to the religious question could not be treated as overt acts in preparation or planning for a terrorist act (or acts) in furtherance of the conspiracy unless the jury were satisfied beyond reasonable doubt that Aweys intended thereby to advance the conspiracy to attack the barracks.

In effect, the judge left the issue to the jury on the basis that:

a) the Crown case was that, although Aweys may have hoped that the fatwa would be haram, he nevertheless sought the fatwa in furtherance of the conspiracy with the intention of thereby advancing the conspiracy and with the intention that, if the fatwa were halal, the proposed armed attack would be carried out; and

b) the defence case was that Aweys’ intention in seeking the fatwa was not that it be in furtherance of the conspiracy but that it would result in an haram opinion so as ‘to put any talk of a terrorist act to rest’.

Contrary to Awey’s counsel’s submissions, there was nothing wrong with the judge leaving the issue to the jury on that basis. In principle and in fact the Crown were entitled to argue that, although Aweys may have hoped that the fatwa would be haram, he sought the fatwa pursuant to his agreement with his co-conspirators with the intention of obtaining the fatwa in accordance with the conspiracy and, if the fatwa proved to be halal, with the intention that the attack be carried out. It was then up to the jury, as the judge directed them, to determine whether they were satisfied beyond reasonable doubt that Aweys’ actions in seeking the fatwa were in furtherance of the conspiracy; always bearing in mind, as her Honour repeatedly instructed them, that they had to be satisfied beyond reasonable doubt that Aweys’ intention in seeking the fatwa was that it be in furtherance of the conspiracy.

Counsel for Aweys contended there was a ‘real problem’ with the element of intention, inasmuch as the Crown ultimately relied on covertly recorded telephone conversations between Aweys and the sheikhs to prove Aweys’ intention of entering into the agreement; to prove he took steps in preparation or planning for an armed attack on Holsworthy Barracks; to prove his intention that the attack on the barracks be carried out; and to prove his intention to obtain the fatwa from the sheikhs in furtherance of the agreement.

In our view, there was no such problem. The phone calls were not the only evidence on which the Crown relied to prove intention. They were part of a wide ranging circumstantial case. That included the association between Fattal and Aweys; Fattal’s actions in reconnoitring the barracks; Aweys’ actions in seeking the fatwa; the terms of his reports to his co-conspirators; and his subsequent conversations with Fattal from which it may be inferred that he associated himself with Fattal’s attitudes towards kuffar Australians and Australian institutions. For reasons to which we shall come under the heading of Ground 2, we consider that, taken as a whole, that evidence sustained the inference beyond reasonable doubt that Aweys’ intention in seeking the fatwa was to obtain the fatwa in furtherance of the conspiracy and, if the fatwa were halal, that the attack should proceed.

Consequently, we reject Ground 1.

Ground 2: Whether the verdict of the jury was unreasonable

Under the heading of Ground 2, counsel for Aweys argued that the verdict was unsafe and unsatisfactory because, upon a fair interpretation of the covertly recorded telephone conversations between Aweys and other alleged conspirators, there was a reasonable possibility that Aweys hoped to obtain a negative answer to the religious question and thereby to prevent the proposed attack proceeding. Counsel relied in particular on the following aspects of those recordings:

(1) In a call of 1 May 2009 between Ahmed and Aweys:

…
AWEYS: Where is my Merry-go-round?
AHMED: Your Merry-go-round is tomorrow, brother. What do you think?
AWEYS: Huh?
AHMED: Tomorrow Allah willing, make supplications.
AWEYS: Oh. Is it Saturday?
AHMED: Yeah, tomorrow, tomorrow; Allah willing. The women said they are busy today, so tomorrow. Tomorrow after Asir (Afternoon Prayers) we should get an answer Allah willing. If rejected, then it’s a reject. Otherwise, we are the three of us, anyway. So, … (Interjected).
…
AHMED: Yes. You told me that. But, even now you have to put the pressure on him. Honestly, he will bring it again. Last time you know, you remember it, All Loftiness to Allah. And I also told the Brothers. Man, do you remember the guys. The guys who [Pause] were, the place where. The issue I that told you, do you remember about Sheikh Abdirahman who was coming from Perth.
AWEYS: Yes.
AHMED: Don’t you remember the issue of the crazy guys?
AWEYS: Yes.
AHMED: That issue, man, I have spoken to the guys.
AWEYS: Yes.
AHMED: They said, man, call us for the Sheikh, you know.
AWEYS: Our Sheikh?
AHMED: Yes.
AWEYS: Ready, ready.
AHMED: If the Sheikh says to them you are crazy.
AWEYS: What?
AHMED: If the Sheikh says to them you are crazy and leave these things.
AWEYS: Yes.
AHMED: We will get them good amount of money from them.
AWEYS: That’s it then, it’s ready. The man, tell them this man is a very famous man, and the media (Interjected).
AHMED: No. no. It doesn’t matter. They know the Sheikh. But, you have to talk to the Sheikh.
AWEYS: I will tell the Sheikh the situation that exists and that those people need you and make them to talk to him.
AHMED: Yes.
AWEYS: That’s normal. It’s ready.
AHMED: No. But you tell him the issue, ok?
AWEYS: Yes. I will say to him there is that issue which exists, ok?
AHMED: Yes, tell him the issue. Say to him that these guys want to do this, and we are … that there isn’t much blessings for the Muslims in it, do you understand? Anyhow, you tell the Sheikh the truth.
AWEYS: Ok, ok.
…

(2) In a call of 12 June 2009 between Aweys and Sheikh Hayakallah:

...
…
AWEYS: There are men who are our colleagues and we are friends with but who came from the Middle East.
HAYAKALLAH: Yes.
AWEYS: They wanted and they have kept coming back to me all these days. They said that they would like to talk to Ammo to ask you a religious issue/matter for a specific question. They could not trust many other men. Therefore, they want to ask you this question directly. We will call you tomorrow and he would like to ask you this question for about five to ten minutes.
HAYAKALLAH: Can you explain to me the question that they would like to ask me so that I can prepare myself for it.
AWEYS: That is correct. It is good. I will tell you now in advance. As I have told you, these men from the Middle East. They are youth … what can I say … they are about five to six men now. Men who were their friends are imprisoned. Who we too knew each other earlier, but who were very close to them and their kinship have been imprisoned. They are imprisoned in this country. So, there are issues about these man having an intention to conduct operations here. We then disagreed between ourselves. We said – what if this endangers of all Muslims in this country/city/town, and they are saying we are not going to stay like this till you bring us a religious verdict. They also said that they do not trust the men, religious scholars, in this country like the sheikhs residing in this country. Hence, like your Sheikh they said like that Sheikh we would accept and that we will abide/ accept what he tells us.
HAYAKALLAH: Smart. May Allah bless you. Ammo, this is a religious questions. They are right. It is good. So, what they actually want is to do revenge and hit the enemy in the artery, no matter what happens. Isn’t it that what they want?
AWEYS: Yes. What happened is that one thing. There are men, you, there are men and I don’t not know if you have heard it before. Who are numbering up to ten had been imprisoned here. These people, you know these infidels they accused them of something. Anyhow, the men were convicted and are they are sentenced between ten to fifteen years of imprisonment. They were very good youth who were humble/poor and they were falsely framed for something that does not exist. These men are the ones that remained behind and we were nonetheless associates of them. But, we know them informally in general sense, and they are good people whom we are brothers. So, one of them came up with this story – to do something, here and against these men. He said the reason is you know that they are holding our men and you and I know that they are holding them in aggression. They invaded our Muslim lands in aggression and the army of this country where we are is currently away. He raised a lot of questions and he said we want to do something here. We will not just sit here and we could not go to your land as well, so he said what do we do then.
HAYAKALLAH: Very good, uncle. Allah willingly, make it tomorrow around this time. Allah willingly, I will find their sufficient answer. Allah willing…

(3) In a later call between Ahmed and Aweys on 12 June 2009:

…
AWEYS: Hey, anyway, I have spoken to Ammo.
AHMED: Yes.
AWEYS: I have raise[d] the issue, the guys.
…
AHMED: What happened?
AWEYS: I said to him, Ammo, there are men who are among our colleagues. But, who came from the Middle East. Who are our brothers that we stay here together. They wanted to ask you a religious matter/issue/question. And I told him that they are not quite convinced with the religious clerics over. They said we are quiet satisfied with Ammo. So, I told Ammo that it’s possible that we may ring him tomorrow. And we would like if you could be available for a time of about ten to fifteen minutes to them.
AHMED: Yes.
…
AWEYS: I was saying that we first started it, we clashed with these guys that we said eeh (Interjected).
AHMED: But, have you told him the issue that these guys want to enter places and those activities?
AWEYS: I told him that they want to carry out activities. I even told him that there are guys imprisoned from them. Their friends!
AHMED: What?
…
AWEYS: I told him that there are guys imprisoned from them. That this country’s men are away in war, you know that. They want to carry out those activities, and we told them that might bring problems. They then responded saying what you are talking about does not exist and if it’s a religious mater/issue bring the sheikhs.
AHMED: Correct
AWEYS: So, we want you to put an end to the issue. In Allah’s Name, he said, it’s an important issue, and it’s a religious matter/issue, so tomorrow around this time or slightly earlier, Allah willing. Anyway, tomorrow at 8.30. Tomorrow night at 8.30 it would be appropriately dealt with.
AHMED: Man, do you know what I am fearful of?
AWEYS: Yes.
AHMED: If the Sheikh says to the guys enter the place.
AWEYS: Yes.
AHMED: It’s a catastrophe, brother.
…

We accept that there are passages in those conversations which suggest that Aweys hoped that the fatwa would be haram rather than halal and thus that the attack would not proceed. We also accept that, logically, that could be taken to imply something about Aweys’ intention in seeking the fatwa. It does not follow, however, that the verdict is unsafe and unsatisfactory.

As Hayne J stated in Libke v The Queen,[9] it is not enough to render a verdict unsafe and unsatisfactory that the jury might have had a reasonable doubt about guilt. The test is whether upon the whole of the evidence the jury were bound to have a reasonable doubt. Here, upon the whole of the evidence, we consider that the jury were entitled to conclude that, although Aweys might have hoped that the answer to the religious question would be no, he was committed to obtaining the fatwa because that was what had been agreed upon and he was committed to the idea of the attack being carried out in implementation of the agreement if the fatwa were halal.
[9](2007) 230 CLR 559, 596 [113] (Hayne J).

That appears most clearly in the following further passage from the conversation between Aweys and Ahmed on 12 June 2009:

…
AWEYS: Yes. If he says enter. It will be entered then, Laughs. All of us would enter.
AHMED: No, no, no. No way, man.
AWEYS: Laughs.
AHMED: But, do you know brother?
AWEYS: Yes.
AHMED: For me, I have read this matter/issue from many clerics, do you understand? So, if the Sheikh said to them come back to me tomorrow.
AWEYS: Yes.
AHMED: He doesn’t want to be hasty on the matter. Do you understand? So, he would ask clerics. I am pretty sure of that. So, it should be waited just for tomorrow. But, I brother am on the opinion, brother, you know. Even you, brother, know this. It’s that we have to look the interest, you know that.
AWEYS: Hey, don’t be pessimistic of anything. Laughs.
AHMED: No. In Allah’s Name. In Allah’s Name. I am serious. In Allah’s Name, the issue/matter (Interjected).
AWEYS: If the clerics say enter, it would be entered, hey you. Laughs.
AHMED: No. You go and enter.
AWEYS: Laughs. What?
AHMED: You enter.
AWEYS: If it’s said to be entered, in Allah’s Name, it would be assisted with. How is it? If it’s said that it could be entered what have you go to do?
AHMED: You, shall I tell you something? For you, nothing much is left from December, brother. You just wait for your December.
AWEYS: What [sic, why] do I have to wait? Hey, it’s the same here and there.
AHMED: In Allah’s Name, it’s not the same.
AWEYS: Yeh?
AHMED: It’s not the same, brother. Our country, our Motherland!
AWEYS: In Allah’s Name, you are a soft man. How’s that?
AHMED: Our Motherland. Nationalism, brother!
AWEYS: Hey, it’s not our Motherland. There is no Motherland here. Are you fighting for a country?
AHMED: Yes, country, brother, of course.
AWEYS: You are a soft man.
AHMED: I am here twenty years brother. Do you understand? Brother. I don’t have anything, brother.
….
AHMED: And these guys spoilt/infected me, brother.
AWEYS: What?
AHMED: These guys spoilt/infected me.
AWEYS: These guys what?
AHMED: Have spoilt/infected me.
AWEYS: Guys spoilt/infected you, in Allah’s Name. You are being soft and began to caress the head [of the infidel]. Laughs.
AHMED: Laughs.
AWEYS: For me, in Allah’s Name, you count me on where the tough guys are in. I swear in Allah’s Name. It it’s said to be entered, I am included.[10]

[10]Emphasis added.

We add that, at the request of counsel for Aweys, we have listened closely to the recording of that conversation, and in particular to the laughter which occurs at several points in it. Contrary to counsel’s submission, we do not consider that it conveys the sense that Aweys was speaking in jest when he said that, ‘If the clerics say enter, it would be entered’.

Counsel for Aweys submitted that, even if that were so, it was still not enough for the Crown to show that Aweys sought a fatwa with the intention of obtaining whatever answer might be given. He argued that, unless Aweys’ intention were one of obtaining only an halal opinion, it was logically impossible to say that, by obtaining the fatwa, he was committing an act with the intention of giving effect to the conspiracy. It also followed, counsel said, that the judge erred by failing to direct the jury to disregard the argument, advanced by the prosecutor in the course of final address, that it was sufficient for the jury to be satisfied that Aweys sought a fatwa with the intention of obtaining an answer to it regardless of whether the answer turned out to be positive or negative.

As we said when dealing with Ground 1, we do not accept those contentions. The conspiracy which was charged was one to do acts in preparation or planning for a terrorist act. The acts which were relied upon were the acts of reconnoitring Holsworthy Barracks in order to assess their susceptibility to attack and seeking a fatwa in respect of the attack. After the agreement had been entered into, Fattal reconnoitred the barracks and Aweys sought the fatwa. On the evidence, it was open to the jury to conclude beyond reasonable doubt that each of them so acted in pursuance of the alleged agreement and, therefore, that each of them did so with the intention of thereby carrying the agreement into effect.

Accordingly, we reject Ground 2.

Ground 3: Inconsistent verdicts

Moving to Ground 3, counsel for Aweys contended that the verdict of guilty returned against Aweys was unsafe and unsatisfactory because it was inconsistent with the verdict of not guilty returned against Ahmed. Counsel submitted that, in the face of the passages of the covertly recorded conversations to which he referred in support of Ground 2, it was an affront to logic and common sense for the jury not to be satisfied beyond reasonable doubt Ahmed had the relevant intention and yet, at the same time, to be satisfied beyond reasonable doubt that Aweys had it. In particular, counsel said, it defied logic and common sense for Ahmed to ask Aweys to seek the fatwa, and for them both to take steps to obtain the fatwa, and yet for the jury to treat the two men differently. Ahmed’s defence that he intended to prevent the attack by getting an haram fatwa applied with equal force to Aweys; especially given that the Crown had contended at trial that Ahmed had done ‘exactly the same thing’ as Aweys when Ahmed made further enquiries of Sheikh Hussein.

We do not think those submissions to be persuasive. In order to have a verdict set aside as inconsistent with a verdict returned against co-accused, an applicant must satisfy the court that the two verdicts cannot logically stand together, in the sense that no reasonable jury applying their mind properly to the facts of the case could arrive at the same conclusion. The respect which the law justly assigns to juries and the experience of the law that juries do follow directions to consider the case against each co-accused separately, means that the court is reluctant to find inconsistency unless the case is clear. Consequently, if there is some evidence sufficient to sustain the difference, the court is not inclined to substitute its own view for that of the jury.[11]
[11]Mackenzie v The Queen (1996) 190 CLR 348, 366-368.

In this case, there is an essential difference between the evidence against Aweys and the evidence against Ahmed. Unlike Aweys, Ahmed was never recorded as saying that he would proceed with the attack. To the contrary, in his conversation with Aweys on 12 June 2009,[12] Ahmed stated plainly that he was not prepared to go ahead with the attack even if the fatwa were halal. He also referred to the fact that he had been in this country for 20 years and, on one view of the conversation, he implied that he now regarded Australia as his ‘motherland’ and so was not prepared to take action against it. All of that stands in marked contrast to Aweys’ statement that, if the fatwa were halal, he would be involved in the attack and in marked contrast to Aweys’ comments about the iniquity of kuffar Australians and what should be done about it. In our view, that was a fundamental point of distinction which, without more, would have justified the different verdicts returned against each man.
[12]Which is set out above under the heading of Ground 2.

In the result, we reject Ground 3.

Ground 4: Exclusion of prejudicial evidence

Ground 4 concerns the judge’s refusal to exclude evidence of two covertly recorded telephone conversations in which it was suggested that Aweys had expressed satisfaction at the suffering of persons directly affected by the February 2009 bushfires (‘the bushfire remarks’). The relevant parts of the two conversations were as follows:

(1) On 16 February 2009:
…
WALID: Everything’s okay then?
AWEYS: Everything’s okay yeah nothing nothing but you know. You know these kuffars they had a big bush fire two hundred people died here man, in Victoria.
WALID: Yeah they tell me it’s been very hot there.
AWEYS: Oh yeah do they?
WALID: Yeah … fires they’ve been telling me.
AWEYS: They copped it man, they copped it I swear to Allah hard you know, bout two hundred people died you know, right around Melbourne, you know Whittlesea, all this aahh Healesville all around town.
WALID: That’s very close man.
AWEYS: Very close, my brother, I swear to Allah. But anyway thanks to Allah, nothing no Muslims, thanks to Allah, all good, Allah willing. Ah it’s the same story no one knows nothing so far thanks to Allah … but you know they moved you house did they tell you?

(2) On 11 March 2009:

…
AWEYS: He gave it to me you know. All good, Allah willing. Anyway I’ll I’ll send it tomorrow, Allah willing, and now, by Allah, this country is going down the drain man it’s got a lot of crisis no more jobs you know quiet everything no money oh man.
WALID: The west, the west, I think is gone. The west, the west man, soon maybe give it 5 years, 6 years is going to be finished.
AWEYS: Man, I’m telling you tell the brothers keep it up be strong, by Allah, they are coming down these filthy people they are coming down man, they are coming down hard, by Allah.
WALID: (inaudible).
AWEYS: Yeah when, when, the whole nation is coming down first the economy comes down first. By Allah, factories shutting down, nothing here mate nothing barely anything. By Allah, I’ve never seen Melbourne like this then fire coming to them no water, the water storage is empty. They are copping hard man.
WALID: (inaudible).
AWEYS: Thanks to Allah, thanks to Allah, we say thanks to Allah, Allah willing.

In rejecting defence counsel’s application that those remarks be excluded from evidence pursuant to s 137 of the Evidence Act 2008, the judge ruled that:

The bushfire call is also relevant for much the same reason in that it demonstrates an attitude of great hostility to the country of Australia and its citizens. Whilst it is not really argued that it is not admissible evidence, the major argument is that it is grossly prejudicial and, pursuant to s 137 of the Evidence Act, it should be excluded.
Section 137 states, ‘In a criminal proceeding the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.’
There is no doubt it has prejudicial overtones, but the prejudicial overtones are really the degree of animus and pleasure that the accused takes from the misfortunes that befell the citizenry of the country. Counsel relied upon the definition of ‘unfair prejudice’ contained in the ALRC Evidence Interim Report No 2 where they stated, ‘By risk of unfair prejudice is meant the danger that the factfinder may use the evidence to make a decision on an improper, perhaps emotional, basis; id. on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the factfinder's sympathies arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the factfinder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence, the factfinder may be satisfied with a lower degree of probability than would otherwise be required.’
This is not, in my view, unfair prejudice of the level required. The jury will be told the manner in which they can use this evidence and that they must not use it in a way that is prejudicial. I do not perceive this as evidence of such a prejudicial level that a jury will be so affected as to not be able to follow directions about the manner in which they can use this evidence. Equally, it is highly probative evidence, and I am not persuaded that the unfair prejudicial value outweighs the probative value of that evidence.

Counsel for Aweys argued before this court that the judge’s reasoning was erroneous. He also stressed recent decisions of the New South Wales Court of Criminal Appeal in which, contrary to some of that Court’s earlier pronouncements, it has held that s 137 is not discretionary. Counsel reminded us, too, of the apparent willingness, if not obligation, of this Court to follow decisions of other intermediate appellate courts on questions of construction of uniform legislation.[13] On that basis, counsel contended, it was for this Court to decide for ourselves whether the probative value of the bushfire remarks was outweighed by the risk that they would cause unfair prejudice to Aweys, and he submitted that we should be so persuaded.
[13]Even if, as sometimes appears, the obligation is not conceived of by all Australian intermediate appellate courts as being entirely mutual.

We do not consider that the judge was in error in declining to exclude the bushfire remarks evidence. In our view, the probative value of it very substantially outweighed any improper prejudicial effect which it might have had.

In the Crown’s contention, it demonstrated Aweys’ disdain of kuffars and more generally his contempt of western society at the time of entry into the conspiracy, the reconnoitring of Holsworthy Barracks, and the seeking of the fatwa. As such, it was important evidence of motive. Absent evidence of a motive, a rational jury might well not be persuaded that an Australian citizen living within the peace and protection of this country would engage with others to undertake acts preparatory to a suicide attack on Holsworthy Barracks. Knowledge, however, that Aweys despised Australian ‘kuffar’ as ‘filthy people’, and exalted in what he perceived to be the decline of Australian society, was a powerful reason to think that his actions and intention were as alleged. As Lord Atkinson observed in R v Ball:[14]

Surely in an ordinary prosecution for murder you can prove previous acts or words of the accused to shew he entertained feelings of enmity towards the deceased, and that is evidence not merely of the malicious mind with which he killed the deceased, but of the fact that he killed him. You can give in evidence the enmity of the accused towards the deceased to prove that the accused took the deceased’s life. Evidence of motive necessarily goes to prove the fact of the homicide by the accused, as well as his ‘malice aforethought,’ inasmuch as it is more probable that men are killed by those who have some motive for killing them than by those who have not.

[14][1911] AC 47, 68, in arguendo; and see JD Heydon, Cross on Evidence, Australian Edition, [1140]; Harriman v The Queen (1989) 167 CLR 590, 631 (McHugh J); cf Chand v R [2011] NSWCCA 53, [81]-[85] (McClelland CJCL); R v Georgiev (2001) 119 A Crim R 363, 365 [6] (Brooking and Phillips JJA).

Possibly, as defence counsel submitted below, there was a risk that, because of the intensity of the suffering inflicted by the bushfires, and the emotion and empathy which it evoked throughout Victoria and beyond, the bushfire remarks would weigh disproportionately with some members of the jury. But, to adopt and adapt the language of Brooking JA in R v Georgiev,[15] although the bushfire remarks may have been prejudicial, possibly even highly prejudicial because of the antipathy which they had the potential to engender, they were powerfully relevant to the matters in issue. Motive was an integral part of the Crown’s circumstantial case of intent and thus, inasmuch as the bushfire remarks established motive, there was no error in their admission.[16]
[15]Ibid.
[16]See and compare Cooper v R [2013] VSCA 153, [8] (Priest JA).

In summary, s 137 refers to ‘unfair prejudice’. The evidence of the bushfire remarks was necessarily prejudicial: evidence of hatred of Australians led before a jury of Australians will invariably be prejudicial. But it was not ‘unfair’ when the relationship between the prejudice and the offences which renders the evidence relevant is understood. It would be unfair to exclude such evidence, for that would mean that in cases of this crime evidence of motive could hardly ever be led.

Counsel for Aweys contended that, even if that be so, the judge erred in the directions which her Honour gave the jury concerning the use which could and should not be made of the bushfire remarks. In counsel’s submission, given what he characterised as the emotive and dangerous nature of them, it was incumbent on the judge to direct the jury that, if there were a reasonable view of them consistent with innocence, the jury could not use them as evidence which made it more likely that Aweys intended to further the conspiracy.

We reject that submission. The evidence of the bushfire remarks was but one, albeit important, piece of evidence among the complex of circumstantial evidence presented against Aweys.[17] The jury were not bound to regard it as an essential intermediate fact in their process of reasoning to guilt and the judge was not obliged to direct them that they should so regard it. It was open to convict on the basis that the evidence taken as a whole established guilt beyond reasonable doubt even if the jury were not persuaded to any particular standard of proof that the bushfire

remarks implied a motive to further the conspiracy.[18] As the judge directed the jury, correctly:[19]

Circumstances can and do arise from time to time in which it can be established beyond reasonable doubt that a particular person committed a specific crime. No shadow of a doubt. Yet to the outside observer it is totally inexplicable. No-one can understand for one second what the reason was. We have crimes like this continuously. No-one can understand why. But people commit a crime.
Equally, you can have a situation where an accused person may be considered to have an unbelievably powerful motive, the strongest motive for committing a particular crime, but the evidence just does not disclose that they are guilty in any way of the crime. So, whilst you, a jury, can derive some assistance from the absence or presence of a motive in affecting the likelihood of participation of a particular accused in the crime, ultimately the absence of a motive cannot affect your judgment if you are satisfied beyond reasonable doubt of the guilt of an accused on the evidence before you, and equally motive cannot be used to make up for a lack of evidence. So if there is not enough evidence the motive does not make up for the lack of evidence. But in a circumstantial case what you are entitled to do is to look at it and say, ‘Very well, it’s a factor I will take into account, the presence or absence of a motive in respect of that particular accused person’. It is something you can look at in relation to the likelihood and probability.
…

[17]Plomp v The Queen (1963) 110 CLR 234, 242-3 (Dixon CJ); R v Hillier (2007) 228 CLR 618, 637 [47] (Gaudron, Hayne and Crennan JJ).

[18]R v Koeleman (2000) 2 VR 20, 29 [27] (Tadgell JA).

[19]See De Gruchy v The Queen (2002) 211 CLR 85, 93 (Gaudron, McHugh and Hayne JJ); R v Cavkic (2005) 155 A Crim R 275, 289 [2].

Admittedly, if the jury took the view that motive was an essential step in their process of reasoning to guilt, they needed to be satisfied beyond reasonable doubt of the motive.[20] But the judge dealt with that possibility in two ways. First, as part of her general directions, her Honour instructed the jury that, if they regarded a particular fact as being an important part of their reasoning process, they needed to be satisfied of that fact beyond reasonable doubt. Thus:

That means you must be satisfied about the important facts upon which your inference is based, and you need to be satisfied that those important facts, if you are going to base your whole decision of guilt on an inference from those facts, you need to be satisfied those facts have been proved beyond a reasonable doubt.

Her Honour also gave the jury general directions on drawing inferences – arguably more favourable than the directions to which the accused were entitled[21] – that it was not open to the jury to draw any inference unless satisfied of it beyond reasonable doubt.

[20]Shepherd v The Queen (1990) 170 CLR 573, 584-5 (Dawson J).

[21]Cf Shepherd v The Queen (1990) 170 CLR 573, 581 (Dawson J), 575 (Mason CJ), 593 (Mc Hugh J).

Secondly, the judge specifically directed the jury in relation to motive that, if they regarded motive as being an important part of their process of reasoning to guilt, they needed to be satisfied beyond reasonable doubt of the facts on which it was based:

Let me say if you are going to use motive as part of the overall circumstantial case against an accused person when assessing whether or not that person is a participant in the conspiracy, you need to determine that issue only on the balance of probabilities.
If, however – and this is the difference between the two, it depends how you use the evidence – if you are only going to use it as part of the overall circumstantial case you would need to be satisfied of those facts just on the balance of probabilities; but if you regard motive as a significant fact upon which you rely in coming to a conclusion in relation to the participation of a particular accused, then you would need to be satisfied of the facts upon which you base that conclusion beyond reasonable doubt. As I told you earlier, anything that you really direct[ly] base a decision of guilt upon, then you need to be satisfied of those facts beyond reasonable doubt.

So to direct the jury accorded precisely with the form of direction essayed by Dawson J in Shepherd v The Queen.[22]

[22](1990) 170 CLR 573, 584-5 (Dawson J).

Ultimately, the combination of directions, including her Honours’ specific reference in the latter back to what she had already said in the course of the former, could have left the jury in no doubt that, if they were to infer a motive and regarded it as a significant fact upon which they relied in coming to a conclusion as to Aweys’ participation in the conspiracy, they needed to be satisfied of the motive and of the facts on which it was based beyond reasonable doubt.

It is also to be observed that the judge took the commendable course of informing defence counsel, in advance, of the form of direction which she proposed to give and that counsel took no exception to what was proposed either before or after it was delivered. Given defence counsel’s very considerable experience, his response to the judge’s proposed form of direction supports our conclusion that the jury must well have understood that, if they were to infer guilt from motive or otherwise regarded motive as a significant part of their reasoning to guilt, they had to be satisfied of the motive beyond reasonable doubt.[23]
[23]R v Wright [1999] 3 VR 355, [2] (Phillips and Charles JJA).

Finally on this aspect of the matter, the judge gave the jury specific directions that they were not to allow themselves to be prejudiced by the content of the bushfire observations. No criticism was or could be made of those directions.[24]
[24]See and compare R v GAC (2007) 178 A Crim R 408, [87]-[89]; CW v R [2010] VSCA 288, [29]-[30].

Ground 5: Separate treatment of Aweys’ and Ahmed’s defences

Ground 5 was in effect a complaint that a miscarriage of justice had occurred by reason of the Crown arguing that Aweys’ lies to the police that he had not sought a fatwa were evidence of consciousness of guilt, while at the same time choosing not to argue that similar lies told by Aweys’ co-accused, Ahmed, were evidence of consciousness of guilt. It was also contended that the effect of the distinction was accentuated by the following passage of the judge’s directions:

The next matter I am going to deal with is what has been referred to as lies and an implied admission of guilt. You will recall that a number of counsel addressed you about lies, including the Crown. Lies can and do fall into two categories. In this case the Crown only rely upon the issue of lies, as demonstrating an unspoken or implied admission of guilt in respect of Mr Aweys and his statement in his record of interview about not ever seeking a fatwa from Somalia. It is described, because we always complicate things in the law, as ‘post-offence conduct’…
Now, before I move on to that there have been other statements made by counsel for each of the accused telling you that their clients have not been entirely truthful in parts of their records of interview, or even actually saying that they’ve told lies in parts of their record of interview. The Crown do not rely upon those alleged or admitted lies or untruths as being lies that would amount to an unspoken or implied admission as to participation or involvement in this charge. So, it is only Mr Aweys to whom the later direction will apply.
In respect of all other accused, that is Mr Fattal, Mr El Sayed, Mr Khayre, Mr Ahmed, the situation with their lies is quite different, untruths or lies is quite a different situation.
The Crown rely upon the alleged or admitted lies told by the other accused in relation to the issue of credibility of the individual accused in relation to the statements made to the police during their respective records of interview …

We think the complaint to be unjustified. Putting to one side the problem of ascribing injustice to Aweys because Ahmed was not tarred with the brush of evidence of consciousness of guilt, it seems to us that there was good reason to draw a distinction between Aweys and Ahmed. Aweys told police that, although he knew what a fatwa was, he had never had need to ask for one for himself or for anyone else. Plainly, that was a lie. Aweys was the medium for seeking the fatwa and in that capacity he sought a fatwa from both Hayakallah and Abdirahman. He also facilitated an opportunity for El Sayed to speak to a Sheikh Hussein about a fatwa. In contrast, although Ahmed said that he had never called anyone and asked for a fatwa, it was not suggested that he had. The Crown case against him was that he made ‘attempts to contact a sheikh to ask for a fatwa’ and spoke to Sheikh Hussein (in Somalia) ‘looking for a sheikh’, but not that he asked either Hayakallah or Abdirahman or anyone else for a fatwa.

In those circumstances, we see nothing unjust or unfair about the Crown relying on the clear lie told by Aweys as evidence of consciousness of guilt while eschewing the suggestion that Ahmed’s arguably incomplete response to the question of whether he sought a fatwa should be interpreted as an implied admission of guilt. Apart from anything else, it would have been decidedly problematic whether Ahmed had said or done anything which amounted to a lie, still less could be construed as an implied admission of guilt.[25]
[25]R v Russo (2004) 11 VR 1, 3 [5]-[6] (Winneke P); cf R v Cuenco (2007) 16 VR 118, 124 [19]-21].

The judge gave the jury a comprehensive Zoneff[26] direction in respect of all accused and an Edwards[27] direction in relation to the lies alleged to have been told by Aweys. There was no exception taken to either of those directions. Before this court, however, it was contended that the Edwards direction was defective in that her Honour did not include among the range of possible alternative reasons for Aweys to lie that he feared that his explanation would not be believed. Counsel for Aweys submitted that the judge was bound to include that as a possibility because the defence case was that Aweys made the calls in the hope of preventing the attack on Holsworthy Barracks and feared that, if he admitted making the calls, his explanation would not be believed.
[26]Zoneff v The Queen (2000) 200 CLR 234, 245 [23].
[27]Edwards v The Queen (1993) 178 CLR 193, 210-211.

We are not persuaded by the argument. Although it would have been preferable for the judge to refer to the possibility that Aweys lied because he feared that he would not be believed,[28] there is no doubt that her Honour made clear to the jury that people can and do lie for all sorts of reasons other than consciousness of guilt. She instanced examples of fear, concern not to implicate others in Somalia, consciousness of involvement in seeking a fatwa for the commission of a fraud, mistake, confusion and inability to remember. In our view, that direction sufficiently dovetailed with counsel’s argument that the jury would surely have understood that fear of not being believed was a possibility which they needed to consider.[29]
[28]Because it was referred to by the defence: R v Ciantar (2006) 16 VR 26, 52 [86].
[29]R v Finnan [2005] VSCA 151, [18] (Vincent JA); R v Spero (2006) 13 VR 225, 231 [17] (Redlich JA).

We are fortified in that conclusion by defence counsel’s failure to take exception. In the circumstances of this case, we regard it as a strong indication that very experienced defence counsel were of the view that the directions given were adequate to convey to the jury the matters which needed to be considered. It confirms our impression that the jury could not have been left in any doubt that there were any number of reasons, other than consciousness of guilt, to lie about seeking the fatwa, including of course those which had been adumbrated by defence counsel in final address.

Ground 6: Combination of errors

Ground 6 alleges a combination of errors which in aggregate amount to a miscarriage of justice. For the reasons already given, we are not persuaded that there were any material errors. Accordingly, we reject Ground 6.

El Sayed’s appeal against conviction

El Sayed’s notice of application for leave to appeal dated 20 January 2013 advanced the following 10 grounds of appeal:

(1) The verdict is unsafe and unsatisfactory having regard to the inconsistency between the conviction of the appellant and the acquittal of Khayre.

(2) The verdict is unsafe and unsatisfactory in that there was insufficient evidence to prove beyond reasonable doubt that the appellant held the necessary intent of ‘advancing Islam through violence’.

(3) The trial miscarried due to the learned trial judge’s refusal of the appellant’s application for a separate trial from the co-accused Fattal.

(4) The learned trial judge erred when she failed to correct the following proposition put by the Crown and summarised in her charge to the jury:

…The Crown submitted that Mr El Sayed’s view on the use of violence to advance Islam mirrored Fattal’s and submitted that El Sayed agreed with Fattal in many of the custody conversations…

(5) The trial miscarried due to the learned trial judge’s criticism of the appellant’s defence, directing the jury not to accept the defence case.

(6) The trial miscarried due to the learned trial judge creating new arguments for the Crown against the appellant during her charge.

(7) The verdict is unsafe and unsatisfactory due to insufficient evidence to support a finding beyond reasonable doubt that the appellant was a party to a conspiracy.

(8) There was a substantial miscarriage of justice in trial, due to the fact that the jury were not given the option of determining an alternative offence, being the offence under the Terrorism (Community Protection) Act 2003 No 7, s 4B Providing documents or information facilitating terrorists acts.

(9) Under s 116 of the Commonwealth Constitution, the appellant was exercising his right to freely practise his religion, and a conviction to remain against the appellant will result in a substantial miscarriage of justice and is unconstitutional.

(10) A combination or aggregation of errors resulted in a substantial miscarriage of justice.

Ground 1: Inconsistent verdicts

Under Ground 1 it was contended that the verdict returned against El Sayed was unsafe and unsatisfactory because it was inconsistent with the verdict of not guilty returned against his co-accused, Khayre.

In our view, that contention fails for much the same reason as we have held that Aweys’ Ground 3 fails. In the case of both Awes and El Sayed, there was evidence of motive and, in the case of Ahmed and Khayre there was not. Indeed, in Khayre’s case, there was such an absence of evidence of motive that defence counsel was able to argue that, when one looked at the evidence and the telephone calls to which Khayre was party, it was apparent that he regarded Australia favourably. The judge specifically directed the jury on the point of distinction as follows:

In respect of some of the accused men, the Crown have submitted that the motive or reason for their agreement to enter into planning or preparing for a terrorist act was one based on a significant dislike of, or contempt or hatred for this country, its armed forces, foreign policy and government.
The defence, on the other hand, in the cases of both Khayre and Ahmed, have referred to the lack of motive or reason for them being involved in such an offence. They have submitted that there are no calls or recordings that indicate or demonstrate any animosity or feelings of dislike towards the government, the people or the army of Australia. They have submitted that the Crown have not pointed to any calls in which expressions of this type are used by either of the accused men.
In relation to Mr El Sayed, the Crown argued that he was heard to be agreeing with expressions of animosity directed toward the Australian Government made by Mr Fattal during some of their discussions, if you remember, while Mr Fattal was on remand.

Ground 2: Insufficient evidence of intent of advancing Islam through violence

Under Ground 2, it was contended that the verdict of guilty was unsafe and unsatisfactory because there was insufficient evidence to establish that El Sayed’s state of mind at the time of entering into the conspiracy and seeking the fatwa was one of advancing Islam through violence.

We do not accept that contention. As it appears to us, there was a large amount of evidence which implied that, at all relevant times, El Sayed’s intention was most certainly to advance Islam through violence. On 1 April 2009, the day after Fattal had been to Holsworthy to reconnoitre the barracks, El Sayed called Fattal and discussed both Fattal’s observations of what he had seen at the barracks and the arrangements which El Sayed had made to obtain a fatwa for the proposed attack on the barracks:

FATTAL: Anyway, how are you? Brother, in relation to our issue - -
EL SAYED: Yes –
FATTAL: Eh, when I tell you, eh, then I might need money, okay?
EL SAYED: I, this is it, (sighs) I swear to Allah, over here, frankly, it’s going well here. It’s going well here.
FATTAL: No, man!
EL SAYED: Yes, by Allah. Eh, we can’t talk over the telephone, man. Don’t, don’t, lest we err –
FATTAL: Yes, that’s enough. I understand you.
EL SAYED: But, eh –
FATTAL: So, is it alright? Yeah –
EL SAYED: They want money.
FATTAL: This is it. This is it.
EL SAYED: At the moment, Allah willing, there’s, there’s a brother who’s going to, eh, where (inaudible), I’m not going to mention names, I’m going to speak in riddles.
FATTAL: Okay. Okay. Okay.
EL SAYED: Do you know the brother who went with his wife and his daughter? You know him, he is with us.[30]
[30]Other evidence showed that this was Walid.
FATTAL: Yes, Yes.
EL SAYED: Yeah, there’s a brother who’s going from here to there. You know him. He’s going, he’s going on Sunday. I said to him, I asked him few questions and I said to him to ask few scholars over there, like few Sheikhs and then the answer will come to us here. Those people only fear Allah, Allah willing.
FATTAL: Yes –
EL SAYED: We said to him we wanted him to tell us [alternatively: we want this] and he said Allah willing and so on. I also asked another brother here who speaks to them, you know him, he speaks to them over there –
FATTAL: Mm –
EL SAYED: I also said to him, I said to him we wanted questions, we wanted, we wanted, we wanted to know if it was Halal (permissible in Islam) or Haram (impermissible in Islam). He said to me, ‘For your eyes, Allah willing, I’ll ask them for you’.
…
EL SAYED: Yes, but that guy, that guy, you know who he is, don’t you?
FATTAL: Yes, yes, yes.
EL SAYED: Yes, that’s it. Don’t call him. It is best not to because because –
FATTAL: (inaudible)
EL SAYED: They’re watching him. Because (inaudible)
FATTAL: Okay. Okay. Okay.
EL SAYED: What they said to him over the telephone was, they said to him, ‘Are you, are you sleeping now?’ It was ten o’clock. Abou Ramzi said to me, he said to me, ‘I was at home sleeping and this means they’re watching me and they know exactly what I’m doing’.
FATTAL: Okay. Okay. Okay.
EL SAYED: Yes, so do you understand me? So, eh, yes, I mean, here they’ll be harassed and so on. And you, Allah willing, if you want to pass any message to him you call me as much as you want. I don’t care.
FATTAL: May Allah bless you.
EL SAYED: By Allah, may Allah –
FATTAL: May Allah bless you. So, anyway, the goods are ready, Allah willing.
EL SAYED: What was that?
FATTAL: Listen, I, I, saw the situation there.
EL SAYED: Yes, yes, yes.
FATTAL: Yes, I saw. It’s something very easy.
EL SAYED: By Allah?
FATTAL: Yes.
EL SAYED: And is there, is there, is there something good like –
FATTAL: No, no, the, to enter the work –
EL SAYED: I know, yes, yes –
FATTAL: The work, it’s easy.
EL SAYED: By Allah? Thanks to Allah. That’s very good.
FATTAL: I went there, I stro’, eh, I strolled –
EL SAYED: Yes –
FATTAL: Do you know what I mean?
EL SAYED: Yes.
FATTAL: Yes –
EL SAYED: Be careful, be careful over the –
FATTAL: Yes, I understand you. Yes.
EL SAYED: Yes.
FATTAL: It’s nice to stroll is nice and there is work and so on. Do you understand what I mean?
EL SAYED: Thanks to Allah.
FATTAL: And to enter the business, for a person to do business it’s good. Do you understand what I mean?
EL SAYED: By Allah, it’s very good. Allah willing. My Allah –
FATTAL: (inaudible)
EL SAYED: Make it easy for us .
FATTAL: You know what I mean?
EL SAYED: Yes, by Allah, by Allah –
FATTAL: But, eh, see, (inaudible), but, eh, I’ll speak to you as to what happens, Allah willing.
EL SAYED: Allah willing. The Chaps are saying that they want to come up to yours. Did you, did you, did you find a place or stay at or what’s –
FATTAL: Yes, thanks to Allah. It’s worked out.
EL SAYED: By Allah? Have you found –
FATTAL: But there is no work. There is no work, Nayef.
EL SAYED: By Allah?
FATTAL: There is no work. I’m looking for work.
EL SAYED: But is there a, is there a place available?
FATTAL: Yes, thanks to Allah. Thanks to Allah.
EL SAYED: How much, how much is the rent?
…
FATTAL: And over here you’ll be happy. Over here there [sic] are decent Chaps, they’re all to your liking.
EL SAYED: By Allah?
FATTAL: Yes.
EL SAYED: Thanks to Allah. By Allah, this is very good. By Allah, Allah willing, if, if I come up – we’ll go, we’ll go stay up there couple of days and it’ll be good, by Allah. We’ll see (inaudible) –
FATTAL: (inaudible) whenever you want.
EL SAYED: Allah willing.
FATTAL: When you want to come, you’ll come, Allah willing, you’ll enjoy it, with the permission of Allah.
EL SAYED: Allah willing. Allah willing. We won’t stay long. One two days and we’ll go.
FATTAL: Yes.
EL SAYED: We’ll, we’ll see you, we’ll see the situations and we’ll speak to each other better.
FATTAL: Allah willing.
EL SAYED: Okay. Allah willing.
FATTAL: So, when, when are you intending to?
EL SAYED: I don’t know. They were supposed to come up tomorrow but, eh, eh, Jamil said to me yesterday, he said to me they were going to postpone it. I don’t know few days, I don’t know, a week or something. I don’t know (inaudible) …

On the same day, Fattal was arrested in Sydney on a charge of assault in relation to conduct in Melbourne and later was returned to Victoria where he was held in remand in the Metropolitan Assessment Prison. During a box visit on 21 April 2009, El Sayed had a conversation with Fattal in which El Sayed told Fattal that Khayre was in Somalia seeking a fatwa. It included the following:

[103]Ibid 779 [79].

The defendants were judged to have poor prospects of rehabilitation, given the absence of remorse and the lack of any withdrawal from their extremist views.[104]
[104]Ibid 782 [93] (Elomar); 786 [106] (Khaled Cheiko); 792 [130] (Hasan); 796 [146] (Moustafa Cheiko), 804 [178] (Jamal).

The most senior of the offenders, Elomar, who clearly played a central role in the furtherance of the conspiracy, was sentenced to 28 years’ imprisonment; Khaled Cheiko, was sentenced to 27 years’ imprisonment; Hasan was sentenced to 26 years’ imprisonment; Moustafa Cheiko was sentenced to 26 years’ imprisonment; and Jamal was sentenced to 23 years’ imprisonment.[105] The judge found that there was little to distinguish between the criminality of any of the specific offenders,[106] as all were fully committed to the outcome of the enterprise and driven to it by their extremist religious convictions.[107] As he said:

[T]here is little utility in trying to establish with absolute precision a gradated hierarchy when the criminal liability of each man is at such a high level. That is because the level of criminality of the conspiracy itself to which each man was a willing adherent is, as I have said, not much less serious than the worst-case situation. [108]

[105]Ibid 803 [183], [184], [185], [186], [187] respectively.

[106]Ibid 781-2 [90].

[107]Ibid 790 [125].

[108]Ibid 782 [90].

In R v Touma[109] the defendant, on a plea of guilty, was sentenced to 14 years’ imprisonment on two counts of doing an act in preparation for a terrorist act, in contravention of s 101.6(1) of the Criminal Code, and 8 years’ imprisonment on two counts of knowingly possessing a thing connected with preparation for a terrorist act, contrary to s 101.4(1) of the Criminal Code, the sentences on Counts 2, 3 and 4 to be served concurrently with the sentence on Count 1 and on each other. The guilty plea was held to be a cautious indicator that the defendant was moving away from his past extremism.[110]
[109][2008] NSWSC 1475.
[110]Ibid [145].

In Benbrika v The Queen[111] the defendants were convicted of multiple offences, including intentionally being members of a terrorist organisation, intentionally providing resources to a terrorist organisation and attempting intentionally to make funds available to a terrorist organisation. In addition, one of the defendants, Abdul Nacer Benbrika, was convicted of the offence of intentionally directing activities of a terrorist organisation, knowing that it was a terrorist organisation, contrary to s 102.2 of the Criminal Code. The total effective sentences initially imposed ranged from six years, where the defendant was convicted of the membership offence alone, to 15 years for Benbrika. The sentences imposed for the membership offence ranged from six to seven years but these were held to be excessive on appeal and were reduced to between four and five years.[112] The total effective sentence of 15 years imposed on Benbrika was upheld on appeal on the ground that although the organisation never got to the point of committing a terrorist act before it was shut down, a terrorist act would surely have been committed had it not been shut down and Benbrika was pivotal as to when and what that act would be.[113]
[111](2010) 29 VR 593.
[112]There were other adjustments made on re-sentencing.
[113]Ibid 717 [565].

It is to be remembered that consistency in sentencing federal offenders is achieved by ‘the application of the relevant legal principles, not some numerical or mathematical equivalence’.[114] Nevertheless, the preceding discussion indicates that the amateurish level at which the conspiracy in the present case was conducted, together with the fact that it did not advance to any significant degree, do not diminish significantly Fattal’s criminal culpability, nor that of the other applicants.[115] This is because, as was emphasised at first instance and on appeal in Lodhi, the legislation was created to intercept and prevent terrorist acts at a very early or preparatory stage so as to frustrate the commission of a terrorist act.
[114]Hili v The Queen (2010) 242 CLR 520, 527 [18].
[115]Nor do we consider that the sentencing judge considered these factors significantly diminished the applicants’ criminal culpability. See below where we consider the DPP’s appeal against sentence.

Moreover, the offence of doing an act in preparation for a terrorist act is completed by engaging in the preparatory conduct. The offence does not stand to be completed only when the aim of the conspiracy is achieved, although the moral culpability of the acts done in preparation is to be evaluated by a consideration of the nature of the terrorist act contemplated. Here, the terrorist act contemplated went beyond the intention to cause serious damage to property, as in Lodhi and Elomar; rather, it involved a plan for the intentional killing of innocent persons, the intention being, as her Honour said, ‘to kill as many personnel, that could be found on the army base at Holsworthy … a random shooting of anyone you found on that army base, be it army personnel, civilian, male or female’.[116]
[116]Sentencing remarks, [85].

As was recognised in Elomar, the fact that the acts engaged in lacked cleverness or were inept and clumsy does not in itself render the conspiracy any less dangerous. Here the conspiracy had developed to a point where the target had been selected, a factor absent from the circumstances in both Lodhi and Elomar. Fattal’s inexpert surveillance of the army base was consistent with the grim reality that there was no need to identify any exit from the base for the perpetrators, because the conspiracy involved whoever carried out the plan being killed themselves, as martyrs.[117] Nor was there a need to identify any particular building or office on the base as housing a particular officer because, as mentioned, what the terrorist act contemplated was shooting people at random.
[117]Ibid [85].

While her Honour did not find, in contradistinction to Elomar, that it was inevitable that the terrorist act would be committed, in our view it was open to her to conclude that the offences of which Fattal, and the other applicants were convicted required significant sentences. This was so most especially in the light of the need for the protection of the community and the absence of any remorse or behaviour from the applicants indicating that they had renounced their extremist views. We consider that the sentence fixed by her Honour, eighteen years with a minimum term of thirteen years and six months’ imprisonment, were open to her and were not manifestly excessive.

We consider that this ground of appeal against sentence must be rejected and that Fattal’s application for leave to appeal against sentence should be dismissed.

Awey’s appeal against sentence

In seeking leave to appeal against sentence, Aweys advanced the following five grounds of appeal:

(1) The learned sentencing judge erred in imposing a sentence of imprisonment that was manifestly excessive, particularly having regard to the content, duration and reality of the conspiracy, what was done in transaction of it, and the role of the applicant.

(2) The learned sentencing judge erred in finding that she could not be satisfied that the applicant had desisted from continuing the conspiracy by the date of his arrest.

(3) The learned sentencing judge erred in failing to give weight to the conduct of the accused at trial.

(4) The learned sentencing judge erred in finding that the applicant’s prospects of rehabilitation were ‘exceedingly slim’.

(5) The learned sentencing judge erred in applying the ‘three-quarters rule’ when determining the non-parole period.

Ground 1: Manifest Excess

We have already rejected this ground of appeal and its reliance on the content, duration, and reality of the conspiracy, especially with respect to the unskilful and inexpert nature of the conduct engaged in and the very preliminary stage which the conspiracy had reached before it was interrupted.

We discussed above the nature of the overt acts relied upon by the Crown with respect to Aweys. It is clear that the seeking of the fatwa was a significant matter in the preparation for the terrorist act, at least as significant as the surveillance of the army base. In our view, her Honour was correct to conclude that ‘[n]o one emerges particularly as a leader or as a follower’.[118] Rather, similarly to Elomar, the dynamic between the co-offenders is one where there is little to distinguish between the criminality of any of the specific offenders, as all were driven to the plan by their extremist religious convictions and committed to that plan.[119] Our rejection of Grounds 1 and 2 of Awey’s application for leave to appeal against conviction means that it was open for her Honour to sentence on the basis that each of the applicants acted in pursuance of the alleged agreement and, therefore, that each of them did so with the intention of carrying the agreement into effect.
[118]Ibid [91].
[119]See Elomar (2010) 264 ALR 759, 781-2 [90], 790 [125].

We reject Ground 1.

Ground 2: Desisting from the conspiracy

Aweys submitted that the determination by the sentencing judge that she found ‘neither that you were going to continue nor that you were going to desist, merely that on 3 August 2009 you were arrested’[120] was against the weight of the evidence. Aweys relied on the conversation between Abdirahman and him on 10 July 2009, which, he contended, made it clear that he accepted the answer that the attack on the army base was haram. It was submitted that he took no further steps in advancing the conspiracy and the overt act relied upon on 20 July 2009, namely, the discussion between Ahmed and him that Khayre had announced to others while he was overseas he obtained the answer that the attack was halal, contrary to Aweys’ belief, should not be considered as a step in furthering the conspiracy because in that conversation he accuses Khayre of lying.
[120]Sentencing remarks, [92].

It is apparent that there is an overlap between this ground and Grounds 1 and 2 of Aweys’ application for leave to appeal against conviction, which we have rejected. In this context what is urged is that Aweys, having received the haram answer, regardless of whether that was what he sought, desisted from furthering the conspiracy from that date.

The Crown contended that the determination of the sentencing judge under challenge must be read in its entirety, which included the findings that:

· the answer to the fatwa question was ‘no’ (haram);

· no further steps were taken by Aweys subsequent to that answer, up to the date of his arrest on 3 August 2009;

· this fact did not necessarily mean that no further steps would ever be taken;

· there was a possibility that Aweys would desist;

· ultimately, she could not find either way, as to whether Aweys would take further steps or desist.

The Crown contended that for her Honour to have found otherwise would amount to speculation.

We agree. The evidence from the date on which the haram answer was given did not establish, as a positive inference, that Aweys would perform no further steps to advance the conspiracy. There was only a short period of time between, on the one hand, the conversations of 10 July and 20 July and, on the other hand, the arrest of 3 August and, in the context in which Aweys had expressed both the belief that violence was justified to advance Islam and a fervid antipathy towards Australia’s institutions and kuffar Australians, we consider that it was open to her Honour not to be satisfied, on the balance of probabilities, that these conversations demonstrate a desistance from the conspiracy.

It follows that we reject Ground 2.

Ground 3: Conduct of Aweys at trial

During the course of the plea, counsel for Aweys relied on the observations of Bongiorno J in sentencing Benbrika to the effect that consideration should be given in sentencing for the co-operation the offenders had demonstrated with the Crown

during the course of the trial.[121] It was submitted that Aweys had conducted himself both appropriately and respectfully during the trial with many admissions having been made which had obviated the need for evidence to be called that in turn shortened the trial process. It was also submitted that his behaviour in court was in stark contrast to that of Fattal. Her Honour accepted that Aweys had acted co-operatively during the trial but determined that she would give this no weight in sentencing and the issue was not addressed in her sentencing remarks. Aweys argued that this was an error and that his co-operation should have resulted in a moderation of sentence.
[121]R v Benbrika (2009) 222 FLR 433, 445 [52]. Whealy J in Elomar (2010) 264 ALR 759, 782 [92] also took conduct contributing to the efficiency of the trial into account in fixing a sentence.

However, in our view, her Honour was entitled not to consider Aweys’ respectful conduct in court as a factor in mitigation of sentence. She was not bound to follow the practice of Bongiorno J. It was open to her Honour to give the issue no weight. Just as she was not obliged to take into account, as an aggravating factor, the disruption caused by Fattal during the trial, she was also not obliged to take into account Aweys’ co-operation during the trial as a mitigating factor.

Furthermore, we consider that the application for leave to appeal against sentence should be rejected on this ground because, pursuant to s 280(2) of the Criminal Procedure Act 2009 (Vic), there is no reasonable prospect that this Court would impose a less severe sentence.

We reject Ground 3.

Ground 4: Prospects of Rehabilitation

Aweys conceded that the fact that he had pleaded not guilty and thus contested the charges at trial, and had not shown any remorse, were factors militating against his prospects of rehabilitation. However, he relied on largely unchallenged character evidence to support his submission that he had many personal attributes that tended towards him having good prospects of rehabilitation, especially his supportive family; his good work history; and his completion of various courses while in custody. These included courses for which he achieved a Certificate of Attainment in Work Safety in the Construction Industry; Certificate II in Cleaning Operations; Certificate II in Hospitality (kitchen operations); Certificate in National First Aid Units of Competency; Certificate II in Horticulture; Certificate II in General Education for Adults and Certificate I in Work Education.

It was submitted, the counselling and religious education provided by Mr Weli to Aweys, and his response to it, was of particular significance when assessing his long-term prospects of rehabilitation. Mr Weli, who gave evidence on the plea, is the head Imam at the city mosque in West Melbourne and works as an Islamic chaplain at various prisons in Victoria. Mr Weli started seeing Aweys as part of his normal chaplaincy and found him to become more mature and family-focused in his approach over time. He considered that, initially, Aweys did not have a very deep knowledge of the Islamic faith but that had changed over time and he had become aware of a lot of alternative opinions on matters, having more time to read and ask questions. Mr Weli is also part of a program that offers mentoring and Islamic education and social support for Muslim prisoners, particularly those who may be vulnerable to wrong interpretations of the Islamic religion. The program starts around six months or so before release. Aweys has not been part of that program but Mr Weli has developed a strong relationship with him and is eager to continue mentoring and supporting him before and after his release. It was submitted that her Honour’s finding that Aweys’ prospects of rehabilitation were ‘exceedingly slim’ was against the evidence and that her Honour placed too much weight on the absence of any formal renunciation by Aweys of his extremist religious views.

In response, the Crown submitted that her Honour took into account a range of factors in favour of Aweys’ prospects of rehabilitation. These included his good working history; his supportive family; his participation in courses in prison and the counselling and religious education provided by Mr Weli.[122] Counterbalancing those factors were Aweys’ lack of insight into his offending; his prior criminal history (although, as her Honour observed, there had been no further occurrence of any incident of violence since 2005); the absence of any remorse and his failure to renounce his extremist views. It was submitted that the failure of Aweys to give evidence of a matter in mitigation, when the onus rested on him, namely, of any change of heart or abandonment of the radicalism underlying the offence was a factor which supported her Honour’s evaluation of the prospects of Aweys’ rehabilitation as ‘exceedingly slim’, especially when the matter, if it existed, rested within his knowledge.[123]
[122]Sentencing remarks, [58], [61], [62], [64].
[123]See Weissensteiner v R (1993) 178 CLR 217; R v Neilan [1992] 1 VR 57.

In our view, given that there was no evidence that Aweys had abandoned his extremist views, it was open to her Honour to arrive at the view which she did. In this respect, it was also open to her Honour to treat the evidence of Mr Weli as going only so far as indicating a willingness on behalf of Aweys to engage in discussion and no form of recantation[124] without which it would be difficult to infer that the prospects of rehabilitation were more than slim, given the moral gravity of the incident that was being planned and given that, with respect to the application for leave to appeal against sentence, it must be assumed that Aweys was guilty of the offences with which he was charged, on the basis of the jury verdict. Her Honour’s emphasis on the lack of evidence of recantation served to fortify the view that she had invited such evidence by way of a ‘last chance’, given the severity of the maximum sentence fixed for the offence.
[124]In this respect it should be noted that the extract of Mr Weli’s evidence quoted by her Honour at [61], derived from the plea transcript at p 73 (6 May 2011), to the effect that even if an action is Islamically permissible it may not be the best action to take, is not a statement made by Aweys but a statement made by another individual who had already been through the program which Aweys had not yet started.

We reject Ground 4.

Ground 5: The ‘three-quarters’ rule

Section 19AG of the Crimes Act provides that: (1) if a person is convicted of a ‘terrorism offence’ and (2) the court imposes a sentence for the offence, a Court must set a non-parole period of at least ‘three-quarters’ of the head sentence (the ‘three quarters rule’).[125] Her Honour applied the three-quarters rule.[126]
[125]See s 19AG(1)(b) and (2) of the Crimes Act. Section 19AG also has operation in relation to offences against s 24AA and an offence against Division 80 or 91 of the Criminal Code.
[126]Sentencing remarks, [101].

Section 3 of the Crimes Act defines a ‘terrorism offence’ as:

(a) an offence against Subdivision A of Division 72 of the Criminal Code; or

(b) an offence against Part 5.3 of the Criminal Code.

The offence with which Aweys and the other applicants were charged was the offence of conspiracy to do acts in preparation for, or planning, a terrorist act contrary to s 11.5(1) and s 101.6(1) of the Criminal Code. Section 11.5(1) creates the discrete statutory offence of conspiracy and provides that the offence ‘is punishable as if the offence to which the conspiracy relates had been committed’.

The offence of conspiracy is not found under Division 72 (Explosives and Lethal Devices) nor Part 5.3 (Terrorism) of the Criminal Code.

The term ‘convicted’ is not defined by the Crimes Act.[127]
[127]That is, it is not defined with respect to Part 1B which includes s 19AG and relates to sentencing of federal offenders. It is defined under s 85ZM with respect to pardons, spent convictions and so on.

Aweys submitted there had been neither a jury finding nor a final judicial determination that he had committed a ‘terrorism offence’ as defined under s 3 of the Crimes Act. He submitted that even if s 11.5(1) of the Criminal Code is interpreted as deeming him to be punished for having committed a terrorism offence under Part 5.3 of the Criminal Code, he has not been ‘convicted’ of that offence. The two conditions precedent under s 19AG(1) of the Crimes Act must have different meanings or the latter would be otiose. He contended that the word ‘convicted’ is ambiguous and in the face of ambiguity, an interpretation that favours the liberty of the subject should be preferred.

The difficulty Aweys faces is that there is a response which wholly defeats his submission based on the construction of s 19AG. Section 11.6 of the Criminal Code provides that where a Commonwealth law refers to an offence it is to be taken to refer also to offences involving attempt, incitement or conspiracy to commit that offence. Thus, when s 101.6(1) creates the criminal offence of doing any act in preparation for, or planning, a terrorist act it is to be taken to include also the criminal offence of conspiring to do any act in preparation, or planning for, a terrorist act, by reason of 11.6 of the Criminal Code.

Section 11.6 provides:

(1)A reference in a law of the Commonwealth to an offence against a law of the Commonwealth (including this Code) includes a reference to an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of this Code that relates to such an offence.
(2)A reference in a law of the Commonwealth (including this Code) to a particular offence includes a reference to an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of this Code that relates to that particular offence.

There is nothing in s 101.6(1) of the Criminal Code which is expressly or impliedly to the contrary.[128]
[128]Section 11.6(3) of the Criminal Code.

The effect of s 11.6 to expand criminal responsibility was explained by Redlich JA in Tan v The Queen[129] where he said:
[129](2011) 216 A Crim R 535.

Section 11.6 of the Code falls within Pt 2.4 entitled ‘Extensions of criminal responsibility’ and is to be interpreted in a manner which will facilitate that objective in relation to Commonwealth offences including those in Div 400. Offences against laws of the Commonwealth are those offences created by, or under the authority of the Criminal Code or any other Act.

The Explanatory Memorandum to the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 1999 (Cth), referred to it in these terms:
Items 9, 10 and 11 of Schedule 1 — amendments to section 11.6
Section 11.6 of the Criminal Code is an interpretative provision which provides that references to offences against an Act also include relevant extensions of criminal responsibility such as attempt, complicity and conspiracy. This simplifies the drafting of criminal statutes. The proposed amendments in items 9 and 10 make it clear this rule extends to not only Acts but other laws of the Commonwealth that create offences (for example, regulations). Proposed new subsection 11.6(4) which would be inserted by item 11 preserves references in existing laws to extensions of criminal responsibility.

The provision is referred to in the Commonwealth Criminal Code — Guide for Practitioners, as one essentially of drafting convenience that ensures that references in Commonwealth laws to Commonwealth offences includes references to crimes such as conspiracy, attempts and incitement. [130]

[130]Ibid 549 [40]-[42] (Neave JA and Lasry AJA agreeing).

It follows that the reference in s 3 of the Crimes Act to an offence against Part 5.3 of the Criminal Code, which includes the offence of doing an act in preparation for, or planning a terrorist act, contrary to s 101.6(1) of the Criminal Code, must be taken to include the offence of conspiring to do an act in preparation for, or planning a terrorist act. So too s 19AG, when referring to ‘a terrorism offence’, must be interpreted to include a conspiracy to perform a terrorism offence. On this construction, Aweys was both convicted of a terrorism offence and sentenced in respect of that offence. The three quarters rule was thus properly engaged.

We reject Ground 5.

It follows that we consider that Aweys’ application for leave to appeal against sentence should be dismissed.

El Sayed’s appeal against sentence

El Sayed relied on two grounds of appeal in his application for leave to appeal against sentence:

(1) The learned sentencing judge erred in that she failed to take into account the fact of, and extent of, the applicant’s facilitation of the course of justice in the efficient conduct of the trial and its processes.

(2) The total effective sentence of 18 years is manifestly excessive.

Ground 1: Facilitation of the course of trial

El Sayed submitted that he had contributed to the efficient conduct of the trial and this should have been taken into account in mitigation. In particular, he pointed to certain admissions he made which shortened the trial and the efforts he made to calm Fattal during the trial. We have already dealt with this submission under Ground 3 with respect to Aweys and we similarly reject it here.

Ground 2: Manifest Excess

El Sayed adopted the submissions of Fattal and Aweys on the issue of manifest excess. He also emphasised that he was voluntarily taking part in a mentoring program that exposed him to moderate and appropriate views of practising Muslims whilst in custody and had completed various courses while in prison.

While we consider that this may arguably diminish the extent to which the principle of specific deterrence might be engaged, it flies in the face of the absence of any renunciation of the views that led El Sayed to contemplate the violence the conspiracy was intended to implement. Moreover, as we have emphasised, in any event, deterrence can play little part in sentencing for the offence of which El Sayed has been convicted, the primary purpose of which must be the protection of the community.

We have already dealt in detail with the ground of manifest excess, which we have rejected. The evidence of the overt acts of El Sayed relied upon, especially his facilitation of the pursuit of the fatwa, indicated that the sentencing judge was correct not to identify a hierarchy of offenders within the conspiracy.

We reject Ground 2.

El Sayed’s application for leave to appeal against sentence should be dismissed.

The DPP’s appeal against sentence

The DPP particularised the sole ground of manifest inadequacy upon which he relied in the following way:

In imposing the sentence, the learned sentencing judge:

(a) failed to give sufficient weight to the seriousness of the offence;

(b) gave too much weight to her conclusion that the plan was amateurish together with the fact that this conspiracy did not advance to any significant degree;

(c) failed to give sufficient weight to the principle of general deterrence;

(d) failed, in ‘tempering’ general deterrence because of ideological or religious motivations of those intended to be deterred, to give sufficient increased weight to the protection of the community;

(e) failed to give sufficient weight to the principle of protection of the community;

(f) failed to give sufficient weight to the principle of specific deterrence; and

(g) gave insufficient weight to the maximum penalty applicable.

The DPP accepted, on the authority of DPP v Karazisis[131] that the contention of manifest inadequacy is difficult to make good. As Warren CJ and Maxwell P said:

In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.
The court will be astute to enforce the stringency of this test. As the High Court has emphasized:
The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.[132]

[131](2010) 31 VR 634.

[132]Ibid 662-3 [127]-[128] (citations omitted).

It was submitted that here the sentence imposed was outside the range reasonably open to the sentencing judge, if proper weight had been given to all the relevant circumstances, in the light of the maximum penalty, the sentences imposed in other cases including in Lodhi and Elomar, and the inherent seriousness of the conspiracy. The offending in this instance was argued to be more serious[133] than the very high level of seriousness of the offending in Elomar and more egregious than that in Lodhi, yet the sentence imposed is less than that imposed in Lodhi. The DPP submitted that her Honour arrived at an inadequate sentence by focussing on the steps taken and giving insufficient weight to the nature of the plan which could have had devastating consequences involving as it did a planned attack on a selected target with the intention of killing as many soldiers and others found there as possible.
[133]The submission was made under the general rubric of the need to take into account ‘the nature and circumstances of the offence’, under s 16A(2) of the Crimes Act.

It was further submitted that her Honour wrongly characterised the plan as ‘amateurish’, although it was accepted that it was simple and unsophisticated. The DPP emphasised, as we did above, that under s 101.6(1) the preparatory acts constitute the offence and it is those preparatory acts for which the Parliament has fixed the maximum of life imprisonment. He also argued that it was not correct for her Honour to place weight upon the lack of degree of advancement because the legislative intention of Part 5.3 of the Criminal Code is to prevent or disrupt terrorist acts, as was emphasised by Spigelman CJ in Lodhi, as we discussed above.

The DPP emphasised that a sentencing court must have full regard to the need for denunciation and general deterrence, in determining the appropriate severity of the sentence in accordance with s 16A(1) of the Crimes Act. He submitted that her Honour: (1) undervalued the importance of general deterrence because terrorist offences are carried out by people committed to martyrdom; and (2) that the sentence imposed failed to reflect adequately the need for specific deterrence in the face of an absence of remorse or recantation of extremist views. He also submitted that her Honour failed to place protection of the community at the forefront of the exercise of her sentencing discretion. Moreover, it was argued that the offending was of the worst class and as such should have attracted the applicable maximum penalty of imprisonment for life. The recognition by her Honour that the offending was of a ‘very high level of seriousness’[134] and the plan was ‘evil’[135] should have prompted her Honour to fix the maximum and her failure to do so, it was submitted, indicated that she did not have sufficient regard to the maximum.
[134]Sentencing remarks, [99].
[135]Ibid [85].

We disagree.

The sentencing judge acknowledged that the maximum penalty for the offence of which the applicants were convicted was life imprisonment.[136] She understood that the Commonwealth Parliament had chosen that maximum to indicate the seriousness of the offending, given that the other type of offences attracting such a maximum were murder, treason, and trafficking and importing in large commercial quantities of drugs. She appreciated that what made the offences unusual was that they attached criminal culpability to conduct which, because of the preparatory and anticipatory nature of the behaviour, would not ordinarily be criminal, and would not even amount to an attempt at common law. In this context she cited precisely those passages of the judgment of Spigelman CJ in Lodhi that the DPP relies upon.
[136]Ibid [3].

Her Honour was well aware of the sentences fixed in Lodhi and Elomar and of the difficulty in comparing cases for the purposes of sentencing. She emphasised repeatedly that here the plan was one in which a target had been chosen and the intention was to kill.[137] She was also conscious that the steps taken towards carrying out that intention did not involve, as it did in Elomar, the purchase of ammunition or gathering of weapons.[138] That her Honour was in no doubt as to the character of the offending is evident from her taking into account, as part of the background to the offending, the support the applicants had for Al Shabbab, which her Honour described as ‘a radical and extreme Muslim group based in Somalia’.[139]
[137]Ibid [85].
[138]Ibid [95]-[96].
[139]Ibid [8]. At the hearing of the applications for leave, counsel for El Sayed disputed whether Al Shabbab was a terrorist organisation at the time of the offending by the applicants. This was clarified as disputing whether Al Shabbab was a proscribed terrorist organisation within the list of such proscribed organisations by the Australian government at the relevant time. The Crown acknowledged that it was not. However, ultimately this was irrelevant because the applicants were not charged with being members of a terrorist organisation but conspiring to do acts in preparation for, or planning, a terrorist act.

Her Honour also considered, properly, the consequences that might have followed if the plan had been put into effect.[140] In this respect, while the DPP was correct to emphasise that the sentence imposed must reflect the nature of the offence as preparatory, and thus completed when the acts in preparation have been engaged in, it would be wrong to consider that the offence is punishable as if the terrorist act to which the preparation and planning was directed had been carried out. Although the nature and quality of the terrorist act being planned is clearly relevant to sentencing, it would be a mistake to consider that to be within the range, the sentence must reflect the moral and criminal culpability of the commission of the terrorist act planned.
[140]Ibid [85].

We are not persuaded that her Honour erred in diminishing the weight to be given to general deterrence in a case such as this. As mentioned above, it was recognised by Spigelman CJ in Lodhi that people who are prepared to commit these types of offences, which may involve suicide as a form of martyrdom, are unlikely to be deterred by harsh sentences of imprisonment.[141] Her Honour also recognised that where general deterrence is reduced, the protection of the community is very significant,[142] as is specific deterrence.[143]
[141]Lodhi (2007) 179 A Crim R 470, 490 [87].
[142]Sentencing remarks, [83], [97], [99].
[143]Ibid [83], [99].

In our view, the sentences imposed were severe but quite properly so. We consider that the maximum penalty ought be reserved for the worst class of case. In our view, the offending here, regrettably, was not of the worst class. One can readily envisage circumstances in which the plan, although never carried out, is much more heinous.

We consider that it was reasonably open for her Honour to arrive at the sentences she did. We consider that the sentences imposed fell within the range.

The Crown appeal against sentence should be dismissed.

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[2013] VSCA 276

2 October 2013